city park at merritt street - florida housing … · 2014-027c "photocopy of original hard...
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2014-027C
"PHOTOCOPY OF ORIGINAL HARD COPY"
CITY PARK AT MERRITT
STREET
RFA 2013-001 FOR AFFORDABLE HOUSING DEVELOPMENTS LOCATED IN
MEDIUM AND SMALL COUNTIES
Applicant: Merritt Street Housing, LP 247 N. Westmonte Drive
Altamonte Springs, FL 32714
State of Florida Department of State
I certify from the records of this office that MERRITT STREET HOUSING, LP is a Limited Partnership or Limited Liability Limited Partnership organized under the laws of the State of Florida, filed on November 30, 2012.
The document number of this Limited Partnership is A12000000776.
I further certify said Limited Partnership has paid all filing fees due this office through December 31, 2013, and its status is active.
Given under my hand and the Great Seal of the State of Florida at Tallahassee, the Capital, this the Ninth day of September, 2013
~o~ Secretary of State
Authentication ID: CU1931663562
To authenticate this certificate, visit the following site,enter this ID, and then follow the instructions displayed.
h ttps: // efi le.sun b iz.o rg/ cert au th ve r. h tm I
NOT APPLICABLE
Approved PRINCIPALS FOR THE APPLICANT AND DEVELOP~HFC Advance Revievv
APPLICANT Merritt Street Housing, LP, a Limited Partnership
General Partner - 0.01%
Merritt Street Housing GP, LLC Managing Member: Robert M. Picerne Member: Piceme Investment Corporation
Picerne Investment Corporation
Officers: David R. Picerne Robert M. Picerne Ernesto A. Alvarez Robert G. Hadley, Jr.
Directors: Robert M. Picerne David R. Picerne
Shareholders: Robert M. Picerne
Donna Uritescu Jeanne M. Picerne David R. Picerne Kenneth Picerne
Initial Limited Partner (prior to syndication) Robert M. Picerne
President & CEO Executive Vice President & COO Vice President Vice President
There are no warrant holders and/or options holders of the proposed Development.
DEVELOPER
Picerne Affordable Development, LLC
Managing Member: Robert M. Picerne
Members:
John G. Picerne
Raymond M. Uritescu
David R. Picerne Robert M. Picerne
There are no other officers, directors, shareholders, warrant and/or options holders
cg I ;;;r-:-) J i Q G( { <J
State of Florida Department of State
I certify from the records of this office that PICERNE AFFORDABLE DEVELOPMENT, LLC, is a limited liability company organized under the laws of the State of Florida, filed on November 22, 1999.
The document number of this company is L99000008034.
I further certify that said company has paid all fees due this office through December 31, 2013, that its most recent annual report was filed on April 30, 2013, and its status is active.
Given under my hand and the Great Seal of the State of Florida at Tallahassee, the Capital, this the Third day of September, 2013
~()~ Secretary of State
Authentication ID: CU3954424502
To authenticate this certificate, visit the following site,enter this ID, and then follow the instructions displayed.
https://efile.sunbiz.org/certauthver.html
PRIOR GENERAL DEVELOPMENT EXPERIENCE CHART
Name of Principal with the Required Experience: Robert M. Picerne
Name of Developer Entity (for the proposed Development) for which the above Party is a Principal:
Picerne Affordable Develo~menti LLC
Name of Location Affordable Housing Total Number Year Development (City & State) Program that Provided of Units Completed
Financing Lakeside Village Daytona Beach, FL LIHTC 103 2007 Pine Haven Daytona Beach, FL LIHTC 136 2008 Lakeside Terrace Winter Haven, FL LIHTC 84 2009
NOT APPLICABLE
2013 LOCAL GOVERNMENT VERIFICATION OF QUALIFICATION AS A TOD DEVELOPMENT
Name of Development: City Park at Merritt Street
Development Location: 1130 Merritt Street, Altamonte Springs (At 3 minimum, providctbc 3ddzess 111J1Dbcr. mm mme :md city,:mdlorprovidc tbc sllcct mme, closest dcsigmtcdinleB«tionmd dlbtttbc city(ifloafled widJin 3 city) or county (ifloa.tcd in Ille Wlincoq>or3lcd :ue:i oftbe county). Iftbc Devclopmmt consists ofSatt=d Siles, Ille Dcv'Clopmeot Loation sl2tcd 3bovc mJSt ttfltt:t the ~Site wh= Ille~ Location Point is loated_)
The undersigned Local Government official certifies that the proposed Development (identified above) is located within the area identified below which has been designated and adopted by the Local Government planning agency in its comprehensive plaIL land use plan, land development code, or zoning code as a Transit-Oriented Development, Transit Oriented Development District. Energy Conservation Overlay (ECO), Activity Center, Rapid Transit Zone, Transit Village, or Rapid Transit Development Impact Zone:
• Orange County: 0 Church Street Station TOD 0 Florida Hospital Station TOD 0 LYNX Central Station TOD
0 Maitland Station TOD 0 Orlando Amtrak/ORMC Station TOD 0 Sand Lake Road Station TOD
• Seminole County: ~ Altamonte Springs Station ECO (Altamonte Springs Station - County jurisdiction)
0 East Town Center (Altamonte Springs Station - City jurisdiction)
0 Heritage Village TOD (Longwood Station) 0 Sanford Station ECO
• Volusia County: 0 DeBary Station TOD
CERTIFICATION
I certify that the City/County of Seminole County (Name of CilytCoullly)
foregoing infonnation is true and correct.
Signature
has vested in me the authority to certify that the
Tina Williamson Print or Type Name
Assistant Director of Development Services
Print or Type Title
This certification must be signed by the chief appointed official (stafl) responsible for dctcnnination of issues related to transportation or planning. Signatures from local elected officials arc not acceptable, nor arc other signatories. If the certification is applicable to this Development and it is inappropriately signed, the Application will not qualify for the TOD Funding Preference.
If this certification contains corrections or 'white-out', or if it altacd or retyped, the Application will not qualify for the TOD Funding Preference. The certification may be photocopied.
Please note: This form may be modified by Florida Housing Finance Corporation per Section 67-60.005, F AC.
2013 Sl-R\ 'EYOR CERTillCATIO:'.' FOR.l\'I
Name ofTh:vdopment: City Park at Merritt Street
Development Location: 1130 Merritt Street. Altamonte Springs (Ar~ minimum. provide t!Je addrlf'SS DllUll>er strc<:t n:une and ciry, andior provide Ille streel name. c~ designaled iolnsection :wl eitkrtk city (ifkxatw wi!hin a city) m CC!lll!y(iflocakd in tbe nninCOJ}Xlfaled area of:hc count/). Iftbr Devtlopmtlll consis".s of&:attered Si!es. !be Developnrnt Location stated~ must reflttt the Sonrred Sire1 wbet1' the Devd~ Localian Poi.mis lo<::rred.)
The u.uckrsigned Florida licen.sed surveyor confirms that the method u.sed to deterni.ine the fo!lowing Lititude and lengitudc coordinates confurms to Rule 5J-17. F.A.C .. foimerly 61 G17-6, F A.C.:
*All ealculnrio11s sh.all be based on "WG."i 84" and be grid distances. The Jiori:;ontnl positions shall be colferted to meet submett'r oc<uracy (no autonomous haml-held GPS units shall be used).
State th .. Denlupment
Location Point.'
N~ 40 07.9 Seconds w 81 21 09.7 Seconds Degfl'P.S Minutes {trnncllted aftei· 1 Degrees Minutes { uuncated a.fie£ 1
decimal place) decim211 pJ.ac.,)
To be eligible for proximity points, Degree~ and Minutes mu&t be stated as whole numbers and Seconds mu.<;t be truncated after I dt.-cimal place.
Transit SeJ"'ice - State the latitude and lonizitude coordinates for one (1) Transit Sen-ice 011 the chart below.
Latitude LoDgilnd"
Public Bus Stop
N --- ---- Seconds (tmncated w --- --- Second• (1ma.catcd
Degrees Mmutes after l decimlll place) Degre<'S Mimites •fter 1 decimal place)
Public Bns
Tr.m.•fer Stop N --- ---- &cont.ls (lmncat<:d w --- Seconds (nuw::ated
Degrees Minutes after 1 decimal place) Degrees Minures after l decimal place)
Public Bus Rapid Transit N --- ---- Seconds (lruncated w --- Second~ (tnm.cared
Stop Degrees Mi mites after 1 decimal place) DegrttS Minutes after 1 decimal place)
SunRail Station, 81 21 23.4 ~'letroR"il N 28 39 50.1 Seconds (tmocated w Seconds (tmncated --- ---- ---- ---Station, or Degrees Minutes after I decimal place) Degrees Minutes aflcr l decimal place)
TriRail. Station
Using the method describ<.d a bow"', the distance (rounded up to the near.,.;! hundredth of a mile) between ilie coocdillates of the Dcvelopi:n..'"<11 Location Point and tM coocdinl!tes of the TrHnsit Se:tvicc is.:
_Q_._L_L Miles
Community Sen ices - State the Name, Address and latitude and longitude coordinates of the closest ~r..-ice( s) on the chart below. 3
G1·ocery Store:
Na.me - Winn-Dixie Address- 7800 S Highway 17-92 Unit 160 Fem Park
N 28 ---
Degrees
L::ititmle
39 ----Minutes
10.3 w 81 Second• Degrees { 1rnncated airer 1 decii=I plare)
Using th" method described above•. tiw distance (roonded up to the neai-cst hundredth of a mile) between the coordinates of the D,,.vefopment Location Point and the coordinates of the Grocery Store is:
Lnngitnd~
20 59.7 ---:Minu1e1; Seconds (tnmcated
after !decimal place)
_1 ___ 1 _ __1_Mile<
Initials of Surveyor f!!:J/LB=
Public School:
Name - Milwee Middle School Address - 1341 Ronald Reagan Blvd. South. Longwood
2013 SURVEY OR CERTIFICATION FORM
Latitude
N _6!L 40 47.3 w_n_ Degrees Minutes Seconds Degrees
(truncated after 1 decimal place)
Using the method described above*. the di stance (rounded up to the nearest hundredth of a mile) between the coordinates of the Development Location Point and the coordinates of the Public School is:
Medical Facility:
Name - Florida Hospttal Address -601 East Altamonte Drive AHamonte SpriDAS
N _28 Degrees
Latitude
39 Minutes
54.9 w __fil_ Seconds Degrees
(truncated after 1 decimal place)
Using the method described above*. the distance (rounded up to the nearest hundredth of a mile) between the coordinates of the Development Location Point and the coordinates of the Medical Facility is:
Senior Center: Latitude
Name- _____________ _
Page 2 of 3 Pages
Longitude
~ _fill._4__ Minutes Seconds (truncated
after 1 decimal
place)
-~____!_~Miles
Longitude
_2.L 11.9 Minutes Seconds (truncated
after ldecimal
place)
__ 1 ___Q_ __J!_ Miles
Longitude
Address-------------- N __ _ w __ ---Degrees Minutes Seconds
(truncated after 1 decimal place)
Degrees
Using the method described above*. the distance (rounded up to the nearest hundredth of a mile) between the coordinates of the Development Location Point and the coordinates of the Senior Center is:
Pharmacy:
Name - Walareens Address - 113 Maitland A venue Altamonte SprinAS
N ~-Degrees
Latitude
39 Minutes
----4.5-3- W_fil_ Seconds Degrees
(truncated after 1
decimal place)
Using the method described above*. the distance (rounded up to the nearest hundredth of a mile) between the coordinates of the Development Location Point and the coordinates of the Pharmacy is:
Minutes Seconds (truncated after ldecimal
place)
______ Miles
Longitude
-2.L 559 Minutes Seconds (truncated
after 1 decimal
place)
0 8 9 Miles
If the Corporation discovers that there arc any fulse statements made in this certification. the Corporation will forward a copy to the State ofF1orida Department of Business and Professional Regulation for investigation.
CERTIFICATION - Under penalties of perjury, I declare that the foregoing statement is true and correct.
-1liLOAk f! f}~ - - 5100 Signature ofF1orida Licensed Surveyor Florida License Number of Signatory
Charles P. Delcambre Print or Type Name of Signatory
Please note: 1bis form may be modified by Florida Housing Finance Corporation per Section 67-00.005, F.A.C.
Page 3 of 3 Pages
2013 SUR.VEY OR CERTIFICATION FORM
1his certification consists of3 pages. 1his certification may not be signed by the Applicant, by anyrehted parties of the Applicant, or by any Principals or Financial Beneficiaries of the Applicant If the certification is inappropriately signed, the Application will not be eligible to receive proximity points. If this certification contains corrections or 'white-out', or if it is altered or retyped, the form will not be considered. The certification may be photocopied. To be considered for scoring purposes, at least pages I and 2 of this 3 page certification form must be provided by the Applicant
1"Scattered Sites." as applied to a single Development. means a Development site that. when taken as a whole. is comprised of real property that is not contiguous (each such non-contiguous site within a Scattered Site Development. a "Scattered Site"). For purposes of this definition "contiguous" means touching at a point or along a boundary. Real property is contiguous if the only intervening real property interest is an easement provided the easement is not a roadway or street. (See Rule 67-48.002. F.A.C.)
2 "Development Location Point" means a single point selected by the Applicant on the proposed Development site that is located within 100 feet of a residential building existing or to be constructed as part of the proposed Development. For a Development which consists of Scattered Sites. this means a single point on the site with the most units that is located within 100 feet of a residential building existing or to be constructed as part of the proposed Development (See Rule 67-48.002. F.A.C.).
3 The latitude and longitude coordinates for all Proximity Services must represent a point as outlined on the Coordinates Location Chart set out below. The coordinates for each service must be stated in degrees. minutes and seconds. with the degrees and minutes stated as whole numbers and the seconds truncated after one decimal place. If the degrees and minutes are not stated as whole numbers and the seconds are not truncated after one decimal place. the Applicant will not be eligible for proximity points for that service.
Coordinates Location Chart
Service Location wh!re latitude and longitude c0<rdimle5 mmtbe obtained
Community Services Coordinates must represeit a point thatis on the doorway threshold of an exterior entrance that provides direct public a=ss to the building where the service is localed.
Transit Services For Public Bus Stop, Public Bus Rapid Transit Stop. Public Bus Transth Stop. TriRail Rail Stations a!ld MetroRail Rail ~lions. coordinates must represent the location where passengers may embark and disembark the bus or train.
For SunRail Rail Stations. coordinates nust represent either the location where passengers may embark and disetdJark the train or the coordinates listed below:
S1atlon Name LatitodelLo~tude C oonlina1es Altamonte Springs Station N 28 39 50.1. W 81 21 23.4 Church Street Station N 28 32 20.3. W 81 22 50.6 DeBary Station N 28 51 20.3. W 81 19 24.1 Florida Hospital ~lion N 28 34 21.8. W 81 22 17.4 Lake Mary Station N28 45 31.8. W 81 19 04.3 LYNX Cetiral Station N 28 32 52.2. W 81 22 51.0 Longwood ~lion N 28 42 04.1. W812043.4 Maitland Station N 28 38 037. W 81 21 44.7 Orlando Amtrak/ORMC Station N 28 31 39.5. W 81 22 55.6 Sand Lake Road Station N 28 Tl 11.3. W 81 22 LO Sanford/ffi.46 i:>lation N 284849.8. W81 17 56.9 Winter PalkA'ark Ave Station N 28 35 51.5. W 81 21 6.0
If there is no exterior public entrance to the Cormnmity Service, thm a point should be used that is at the exterior entrance dooiway threshold that is the closest walking distance to the dooiway threshold of the interior ptblic entrance to the service. For example, for a Pharmacy located within an mclosed shopping mall structure that does not have a direct public exterior entrance, the latitude and longitude coordinates at the dooiway threshold of the exterior public mtrance to the enclosed shopping mall that provide the shortest walking distance to the doorway threshold of the interior entrance to the Pharmacy would be used.
Applicants may use the same latitude and longitude coordinates for the Grocery Store, Medical Facility and/ or Pharmacy if the Grocery Store, Medical Facility and/or Pharmacy is housed at the same locatioIL However, there arc no other instances in which an Applicant may use idmtical coordinates or the same location for any other combination of Transit or Community Services.
ASSIGNMENT AND ASSUMPTION OF PURCHASE AND SALE AGREEMENT
THIS ASSIGNMENT AND ASSUMPTION OF PURCHASE AND SALE AGREEMENT (this "Assignment") is entered into as of the 15 day of October, 2013, by PICERNE DEVELOPMENT CORPORATION OF FLORIDA, a Florida corporation ("Assignor''), and MERRITT STREET HOUSING, LP, a Florida limited partnership ("Assignee").
RECITALS:
WHEREAS, Assignor is the buyer under that certain Purchase and Sale Agreement with FOUNDATION CAPITAL RESOURCES, LLC, as Seller (the "Seller"), dated effective November 20, 2012 (the "Original Agreement"), pursuant to which Assignor has agreed to purchase the Property described therein located in Seminole County, Florida (the "Property");
WHEREAS, the Agreement provides that Assignor may assign its rights and obligations as buyer under the Agreement to a related entity owned by, controlled by, under common control, or affiliated with, Assignor;
WHEREAS, Assignee is a related entity owned by, controlled by, under common control of, or affiliated with Assignor;
WHEREAS, the Originaf Agreement was amended by that certain First Amendment to Agreement of Purchase and Sale dated the 20 day of November, 2012, by and between Seller and Assignor, and/or its assigns (the "Amendment" and together with the Original Agreement, the "Agreement"); and
WHEREAS, Assignor wishes to assign to Assignee all of Assignor's rights and obligations under the Agreement, and Assignee wishes to assume all of the rights and obligations of Assignor under the Agreement, subject to the terms and conditions hereof;
NOW, THEREFORE, for and in consideration of the foregoing recitals and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged by each party hereto, Assignor and Assignee hereby agree as follows:
1. Recitals. The recitals are true and correct and are incorporated herein by reference.
2. Assignment. Assignor hereby assigns, transfers and sets over unto Assignee all of Assignor's right, title, interest (including, without limitation, any earnest money deposits delivered by Assignor pursuant to the Agreement), and all of Assignor's duties, obligations and liabilities under the Agreement arising or accruing from and after the date hereof.
2. Assumption of Obligations. Assignee expressly assumes all of the right, title, interest, duties, obligations and liabilities of Assignor under the Agreement arising or accruing from and after the date hereof, including, without limitation, payment of the full purchase price for the Property and any other amounts payable under the Agreement.
3. Further Assurances. Assignor agrees to execute and deliver such other assignment, affidavits, instruments or certifications as Assignee reasonably may request as necessary or appropriate to fully consummate the assignment contemplated in this Assignment.
4. Governing Law. This instrument shall be governed by and construed in accordance with the internal laws of the State of Florida.
5. Binding Effect. This instrument shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and assigns.
{SIGNATURES ON THE FOLLOWING PAGE]
IN WITNESS WHEREOF, Assignor and Assignee have each caused this Assignment to be executed by its duly authorized signatory as of the day and year first above written.
Signed, sealed and delivered in the presence of:
Signed, sealed and delivered in the presence of:
ASSIGNOR:
PICERNE DEVELOPMENT CORPORATION OF FLORIDA, a Florida corpor n
ASSIGNEE:
MERRITT STREET HOUSING, LP, a Florida limited partnership
By: Merritt Street Housing GP, LL Florida · general partner
By: Name: ) CU!\...-<_--Title: Managing Member
FIRST AMENDMENT TO PURCHASE AND SALE AGREEMENT
THIS FIRST AMENDMENT TO PURCHASE AND SALE AGREEMENT (this "First Amendment") js made and entered into this 3 0 day of September. 2013, by and between FOUNDATION CAPITAL RESOURCES, LLC, a Georgia limited liability company ( .. Seller"), and PICERNE DEVELOPMENT CORPORATION OF FLORIDA, a Florida corporation ("Buyer'').
RECITALS:
WHEREAS, Seller and Buyer en1ered into that certain Purchase and Sale Agreement dated November 20, 2012 (the "Agreement"'), which Agreement provides for the sale and purchase of the Property, as defined in the Agreement; and
WHEREAS, Seller and Buyer desire to amend the terms and conditions of the Agreement upon the terms and conditions as hereinafter set forth.
NOW, TIIEREFORE, for and in consideration of Ten and 00/100 Dollars ($10.00), cash in hand paid, the foregoing premises, the mutual covenants and conditions herein set forth and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, Seller and Buyer hereby agree as follows:
1. The foregoing recitals are true and correct and incorporated by this reference as if fully .set forth herein. The terms and conditions of this First Amendment constitute a part of the Agreement and shall hereinafter be incorporated therein by reference.
2. Any and all capitalized terms used but not otherwise defined in thls First Amendment shall have the meanings ascribed thereto in the Agreement.
3. In the event ofa conflict between the tenns of the Agreement and the terms of this First Amendment, the terms of this First Amendment shall control.
4. The time period referenced in Section 2(c) of the Agreement is hereby changed from September 30, 2013io December 20, 2013.
5. Section 2(d) is hereby amended and restated in its entirety, as follows:
"Non-Refundable Deposits. Upon Buyer's delivery of the Third Deposit to Escrow Agent, the First Deposit and the Second Deposit will be nonrefundable to Buyer, and
· upon delivery of the Second Extension Deposit, the Second Extension Deposit will be nonrefundable to Buyer, all except in the event that (i) the Seller fails. refuses or is unable to perfonn all of its obligations under this Agreement; (ii) one or more of the Closing Conditions in favor of the Buyer set forth herein has not been satisfied, or (iii) as othe1wise specifically provided in this Agreement. 11
6. A new Section 2(g) is hereby added as follows:
4Jol9.g()\IS.f>694 s 2?8!11101CIS Hi\C Ille
11First Extension Dewsit Buyer shall have the 1ight to extend the Outside Closing Date (as defined herein) by sixty (60) days (the "Extended Outside Closing Date") by providing notice to Seller of such desire to extend and depositing Ten Thousand and No/100 Dollars ($10,000.00) (the ''First Extension Deposit") with Escrow Agent, which First Extension Deposit shall be deemed to be a Deposit hereunder; provided 1hat such First Extension Deposit shall not be applicable to the Purchase Price at Closing. The First Extension Deposit will be refundable to Buyer."
7. A new Section 2(h) is hereby added as follows:
''Second Extension Deposit. Buyer shall have the right to extend the Extended Outside Closing Date (as defined herein) by sixty (60) days by providing notice to Seller of such desire to extend and depositing Ten Thousand and No/100 Dollars ($10,000.00) (the 11Second Extension Deposit") with Escrow Agent, which Second Extension Deposit shall be deemed to be a Deposit hereunder; provided that such Second Extension Deposit shall be app1icable to the Purchase Price at Closing.11
8. The Closing Date referenced in Section 9 of the Agreement is hereby changed from November 15, 2013,10 April 30, 2014, and the Outside Closing Date is hereby changed from December 15, 2013) to June 30, 2014, as such Outside Closing Date may be extended pursuant to the terms hereof.
9. Section 22 of the Agreement is hereby deleted in its entirety.
10. Except as expressly provided in this First Amendment, the Agreement as hereby amended remains in full force and effect and is not otherwise modified or amended. The Agreement, as hereby modified by this First Amendment, is affirmed, coofinned and ratified.
11. TI1is First Amendment may be executed by facsimile and/or email PDF and in one or more counterparts, each of which shall be deemed an original, and all of which together shall constitute one and the same instrument.
-l&-19·8~~-~·61>'>1 -~ 11'17,DI~ llAC hoc
[Signatures appear on following page]
2
IN WITNESS WHEREOF. the parties hereto have executed this First Amendment as of the date first set forth above.
SELLER~
FOUNDATION CAPITAL RESOURCES, LLC, a Georgia limited Iiab~!-
By: h Name: _WILL(~~ .1 A.
l Its: VH!&{ /JJ1J{tl)id( ,
BUYER:
PICERNE DEVELOPMENT CORPORATION
OFFLO:~ion
By: ~--~ Robert M. Piceme, President
PURCHASE AND SALE AGREEMENT
THlS, PURCHASE .AND SALE AGREEMENT (this "8o/ep1eot") dat~d/f::_:_~i •" .:_./{_, 2012 (t~~ '!:ffr-~ctl:(: __ Q!1t~_") }s ,:nt.1dt b·/ and bi;tv;een WLiJ~11..!..Lz:!2. __ ~_;~,:_f~:'T_A i /\ e _-;,;:-.;,-1·-: i"~'i~.--a ~f:f·>• _'_t!Ji'." .: :ni ("Seiter"), and PICERNE DEVELOPMENT CORPORATION OF rLORIDA, a Florida corporntlon, and/or its assigns (''~").
IU.!CtTA!..S;
A. Seller Is the owner and holder or certain real property comprised of dpproxirmitely 14 acres located at :130 Merritt Street, Altamonte Springs, Seminole County, Florido, and the improvements thereon, as more particularly described on the Exhibit "A" attached hereto ("Property");
B. Buyer desires to purchase the Property from Seller, and Seller desires to sell the Property to Buyer pursuant to the terms and conditions set forth herein.
NOW, THEREFORE, for good and valuable consideration, and the mutual covenants set forth in this Agreement, Seller and Buyer hereby agree as follows:
1. l:!.YJ:!;h~.:rn and Sal~. Seller agrees to sell and convey the Property to Buyer, and Buyer agrees to purchase the Property from Seller. The Property includes all of Seller's rlqht, title and interest in and to (i) all easements, rlqhts of way, prlvlleg'"s, licenses, appurtenances and any other rights, privileges and benefits belonging to the owner of, running with title to, or in any way related to, tt1e Property; (ii} all land use or other consents, authorizations, variances, waivers, licenses, permits, ~rrrov;ils, rfovelcpment orders, or ;:my other entitlements issued or granted by or from any governmental authority with respect to the Property; (iii) all percolation, soil, topooraphic-31, traffic:, RnglnPRring ;ind Rnvironmental reports or studies in the possession or control of the Seller, ard all riparian, littoral rights, titie to submergecl lands and other water rights related to or benefitin9 the Prnpeny; (iv) all utility mains, seivice la:erals, hydrants, connections, hook-ups and valves located on, or adj.::iccnt to, and servicing or available to service the Property; and (v) any and all other agreements, contracts, covenants, variances and rlgr1ts, benefits and privileges rcL:itcd to or benefiting the Property.
2. Purchase Price. The purch<isc price for the rropcrty ("PJJrCbq~c Price") is Two Million Five Hundred Thousand and No/100 Dollars {$2,500,000.00), subject to the credits, ororatlons, ctnd adjustrnenls set for-:h herein. The F'urd1use Price i:; pi:lyable as follows:
a. F•"st Deposit. On the Effective Date, Buyer will deliver to Br:-iad and Cassel, o:; e::>crow .iye:'L C'llirV\Y 1\qe11t"), U1e sun; of five TC;ousanc acid No/100 Dollars ($5,000.0G) by check or wire transfer (the "First Depq~1"). T:·1e First deposit 'Ni: be helcl by f:'scmw Agent In ctn interest l>t:?orillSJ uLLOu1·1t, to be disbur:;ed only in accordance with the ter'.!'S of rt1is Agree1·ncnt. The Firs: Deposit w1il be refunclat>:e ~o Buyer un;ess otherwise sneciflully ;..;~0videll i1: this Agreement.
b. Second Deposit lf Buyer has elected to proceed wit" this tronsact1on following the Inspection Period, tt1en withm flve ( S) business days af~er t le expirat10n of the lnspectlon Period, then Buyer will clel:ver to Escrow A;ient the surn o' Te.-i Thousand and No/100 Dollars ($10,000.00) by cl"ieck or wire
transfer ("Second Deposit"). The Second Depcsit will be held by Escrow Agent in the sarne intere!:t bearing account as the First Deposit. The Second Deposit wi I be refundable to 8uyer unless otherwise specifically provided Jn this Agrcerient.
c. Itl@J)epqit;. No Inter than ten ( 10) business days following Buyer's receipt from the Flonda HousinQ Finance Corporation Board ("FHFC") of written apptovai for ar, ill1'J<..aU011 uf UHTC (as t.lef111ed t1e1ein) for Buyer's Intended project on the Property, bJt in no event later tt1an September 30, 2013, Buyer w'!I deliver to Esc.:mw Agent the sum of Twtmty·Five Tl1uu::.d11i.l and No/100 Dollars ($25,000.00) by check or wire transfer ("ThirQ.j)~..s.i.t"). The Third Deposit will be held by Escrow Agent in tile same Interest bearing account as the First Deposit and the Second Deposlt. The First Deposit, second Deposit and the 1 hi rd Deposit, to the extent delivered to the Escrow Agent, are sometimes collectively referred to as the "Qeposit"). The Third Deposit wi'I be refundable to Buyer unless otherwise specltlcally provided in thls Agreement.
d. Non-Refundable DeQQ.~Jt;;. Upon Buyer's delivery of the Third Deposit to Escrow Agent, the First Deposit and the Second Deposit will be non, refundable to Buyer, except in the event that (i) the Seller fails, refuses or Is unable to peform a!I of its obligations under this Agreement; (ii) one or more of the Closinq Conditions in favor of the Buyer set forth herein has not been satisfied; or (iii) as olhenvlse specifically provided in this Agreement.
e. Balance. The Deposit wi'I be applied to the Purchase Price at Closing, and Buyer wil: pay to Seller the balance of the Purchase Price, subject to credits, adjustmen:s and prorations as herem orovtdecl, by a cashier's check or by wire transf~r of immediately avaiiab!e funds.
f. E<;rrO\i\L DPposit. Thf! OP.flcsit will be Invested by Escrow ;'\gent in an irtBrest bearing account. but only after Buyer has el<ecuted all necessary government;;,J forms, including a W-9 and clelivered such form tn Fscrow Agent. AtW and all interest earned on the Deposit will accrue to tne benefit of Buyer and will be reported to Buyer's federal tax identification number. Escrow Agent will have no responsibility In case of failure or suspension of business of the institution holding the Deposit. Interest earned, if any, will be credited to Buyer upon Closing, or, in the event of Buyer's default, paid to Se lier.
3. Title Insy_r.~nce /Survey.
..a'' , ;y)(,.)..'.'J>~I l ':~IM'.>.I(;;
Titl9. 'vVlthn three (J) business days follo•Ning the Effective Date, Seller w:!I deli,1 er tu 61.r;er a cupy of Seller's title insurance pol1<:y insuring Seller's fee si11'ple liUe tu t"1e Pi o~;ei ly. P1 ivr to the expiration of the frspection Period (as definec c;elow), Buyer, Flt Seller's expense, will obtain an owner's title 1Psurance ccn1rP trnenl (UH; 'TUe OJrlHllillL!s:J.J.l") f<u111 o !1<JliuPally recogn'zed tirlc insurance corrrany acceptable to Buyer through a title agent acceptable to Buyer ("IlLbLLtl.~DJ"). Marketao.e tit:e wil ue cletermlnec accortlirnJ ~u U1'" Title Stancarc~s adopted by <Juthorlty cf The Flor:da Oar and in ac.::irdance with Florlclil in,,v .
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b. ~. Within three (3) business days followlng the Effective Date, Seller wlrl deliver to Buyer a copy of Seller'!'> existing survey, preprtr2<l by a Florida licensed surveyor, of the Property, if available. Within thirty {30) days following ':'w Effective Dwte, Buyer will obtain, at it's sole cost and expense, and updated ALTA/ACSM survey identifying (i) total acreage, (ii) any areas within " flood zone, (iii) any easements, rights of vvay or other encroachm<!nts, and, (iv) following delivery of the Title Commitment to the 5urveyo~, zill of the plottable cxco;:>tlons to he Title Commitment (the ".S.urvcy").
c. Itt~n.Q 5'Jrvey Oblectio[l_s_. Buyer will have twenty (20) days from the latter of receipt of the survey and title commitment to examine the condition of Seller's tltie to the Property (the "Title Review Period"}. If the Title Commitment or the Survey reflects that title to the Property Is subject to any exceptions or other survey matters unacceptable to Buyer, Buyer will notify Seller '11 wrlliny prior to the expiration of the Title review Periou of <:H1'(
defects (t:1e "Title Obiectioi:i...s"). Any exceptions listed in the Title Cornrnlln1enl to wlilcll 6uyer has not umety objected wlll be deemed to be "Permitted Exceptions." Seller, at Seller's so!e cost and expense, wlll use comrnerc:a:iy reas.onable efforts to correct or rernove such Title Objections within thir:y (30) days after receipt of notice from Buyer. If Seller is not suc:cesstul in correcting or removing the Title Objection within such thirty (30) day period, Buyer will have the option of (i) allowing Seller addltlona! time to cure the Title Objections, (ii) acceptirlg the title In Its existing condition, or (111) terminating this Agreement by sending written notice of termination to Seller tind Escrow Agent. In the event that Buyer elects to terminate this Agreement, Escrow Agent will return the Deposit to Buyer, and, thereafter, neither Buyer nor Seller- will have any further llab11!tles or obligations hereunder except with respect to those obligations which expressly survive terminatior.
d. TJ.tl~ __ .fl.DJL_;2.!.J..Cl~:L_l.J.QQil,.ill~. Seller covenants and agrees that after the Effective O;ite It will not enter into or record anv document or Instrument. or enter into ;iny lease or other agreement, affecting or burdening the Property, unless Buyer has consented in writing to the execution or recordation of such documenl, i11st1 urne11t, lease or agreement. If any updated endorsement to thP. TitlP rnmrnitrnPnt M ;my upclAtl'> of the SflrvPy rPvP;'llc:; ;my PX<Pf)i'ion or survey defect not reflected on the Title Commitment or the Survey that was net consen:ed lo by Btiyer, then Seller, at Seller's sole cost and expense, will have such exception promptly deleted f(Om the Title Cornmitrnent, or such survey defect removed or cured, and in any event prior to Closing. !f Seller is :1ot successful in removing the sarne, 8uyer will have the option of (i) :;!lowing Seller additional time to cure S•JCh defects, (11) accepting the title in its existing condit101, or (iii) terminating this Agreement by sending written n•::;ticc of t:nnirution to Seller and Escrow Agent. In the event that Buyer c:lec:s to terminate this Agreement, Escrow Agent will returr~ the Deposit to Guyer. N•::withstandiny anything else to the contrary in this Agreement, in the even:: Seiler fails to remove an exception revealed 1n the Title Cur•<r11it11>1.;:1t 1 '" any update t:1e1eof (w1·1et•1e1 01 not objected to by Buyer), in the form or: (1) a rnort9age or other security interest entered Into by Seller; (2) a iit!n ur c11cur·1ixaricc of any kind or nature vch.Hlldriiy credleJ l;y Selle1 at any tim2 on or after the date of this Agreement; or ( 3) a mechanic's or rnatenillrn;:·n·s Iler. or a Jt.:dgmenr cfocketect .=i!Jr.lnsr rhe Property, In any case
4~1 t. ~'.(.;) .. 't -li I "ill:':·r"f1t'lf}'
.3.
resulting fr'.:lm the non-payment by Seller of any sums alleged to be due and owing by Seller to a contractor or materialman or otherwise voluntarily caused or <:reated by Seller, then in addition to the return of the Deposit, Buyer will be entitled to recover from Seiler all third party costs incurred by Buyer, !nclL:dlng reasonable attorneys' fees and costs, in connec:ion with this Aqreement orH.I the Property.
4. ;tim~tlpn Period. Dunng a period commencing on the Effective Date and continuing throug1 11:59 p.rn. on that date which is the later of sixty (60) clays following the Effeet-tve D;ite or De1.emhPr 11, 7017 (thP "lnsoN:tioo PPriod"), Boyr:r will have the righ: to inspect, review and examine all aspects of thE> Prooerty as F\11yl"r rlPPm<: appropriate in its discretion.
a Access and Deliverables. Durln9 the Inspection Period, Seller hereby grants to Buyer and its agents, employees, contractors and representatives, a right of entry upon every portion of the Property, and a right to examine all records, do::uments, data or information of any kind or nature relating to or concerning the Property in the pOS$C$:::ion or under the control of Seller or other matters pertaining to the Property (and Seller hereby agrees to mai<e <:1ny <ind <iii records, documents, data or information of any kind or nature relating to or concerning the Property in the possession or under the control of Seller available to Guyer) from time to tirne at all reasonable times for the purpose of making surveys, engineering studies, drainage studies, appraisals, L.cming anJ larn.l Ube stutll!:!!>, lnwacl !:>Lutlle:;, su1fdce and subsu1face exploration;, tests, excavations, borings and such other investigations, inspection:;, assessments or reports as Buyer, In its soie drrtl db.solute discretion, 11ay elect to make. Seller wlll deliver to Buyer, wilt•in three (3) business days after the Effective Pate, copies or any and ail S\.irvP.ys (In CADD form.at, If avallable), site plans or layouts, engineering, environmental, soil, wetlands cieterrnlnations, zoning, land use, appraisal anc1 feasibility studies, reports and assessments, concurrency evaluations, any plans ano specifications tor the Property approved by the local building department having jurisdiction over :he Property, which Seller has in its possession or control (coi:ectively, "Plans and Soecs"), and any correspondence concemlnq any such topics that Seller has in its possession or control, and all otne,goveromenta 1 orders, approvals, exemptions, waivers, permits, licenses, special exceptions or variances relating to the Property or any proposed use thereof which are in Seller's possession or control. Seller will also deliver to Buve:r, within three (3) business days after the Effective Date, legible copies of all leases, service contracts, operating agreements, managemert aqreements and warranties relating to or concerning the Property.
t>. 1iilP!ltY_?1_[1d lnclen'.L!"\.it\'.. Buyer assumes Jiabiiity for all ac:-s of its agents wt10 enter onto the Property and agrees to indemnify and hold harmless the Seller f'orn anv fess, damage, cost or expense Incurred l>v Seller as a res;.ilt of such acts of Buyer anci its agents U1at cause Injury to perscns or n;;rrage to the Prnrr-rtv
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T1:rmina~jQr; ."-cJotvJlths:andin'] 2ny prov;sion in th1s Ac;repr-r1e.n: tn thP contrary, cL any ti'.;1e on c.i:· before the enu of th<: lnspecllon Peric·d, E'l;iyei may, withocJ':: lia::;.dity to Seller and tor any reason or no re>aso'1 whatsc€ver, terrrJinatc this Agret!mcnt by written notice to Seller and Escrcw Agert, followin(j w~1ich Esuow Agent wlll pro1rptly return the FJ:·st Deposit to Buyer;
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upon such termination, both parties wtll be released from all further obligations or liability under this Agreernent eJ<cept for those ob!igatio:1" wh•ch expressly s1irvlvc termination.
d. £&.!Jlinulrq PfOQ.S:.d;~!;;;.~. If Buyer has not terminated tt-ds Ag;-eerrent, as µruvh.Jfc!d J:;:reln, the right of entry and !rivestlgatlon 9ranted herein will continue urabated through Closing.
::>. GQ.Y.ernment and FHFC Approya!s-
a.
b.
(l,
14: ;-:,· .. -,<.c..1;1 ··s.c,,~·;:
1ill~llite.Q__l!r.larovement$; Government ARP~· Buyer's ooiigation to purchase tre Property trom Seller Is contingent upon Buyer obtaining tne tinal issuance of: {l) all zoning and other governmental approvals from applicable governmental authorities having jurisdiction over the Property, to permit the construct!on, completion and operation of a multifamily residential project together with related amenities and accessory uses, which Jncludes an allowable density of no less than 125 dwelling units (the "Intended lml?LO.Ye..rn.m~"); (ii) prellmlnary site plan approvnl, for which all appeal periods have expired with no appeal having been filed, ror the Intended Improvements from the applicable governmental and regulatory authority(les); {ill) concurrency and utility approvals; and (iv) any other preliminary governmental and regulatory approvals and/or permits required in connection with the construction of the Intended Improvements (co!lectivelv the "~l!I!fillL8.tw.r.~"). Seller agrees to apply for, or join in any and all applications, permits, consents, zoning, land use, concurrency, plattlng and other permitting, etc., that may be required to be filed in connect•c>n with the Government Approvals. Buyer will pay all reasonahlP and documented costs associated with obtaining the Government 1\pprovals,
812orovals Deadline. Final issuance of the Government Approvals will be deerned to occur only when all of the Government Approvals have been Issued or granted by the applicable governmenta! and quasi-governmental boards and agencies, all appoal periods have expired and any appeals flied have been finally and favorably determined. If this condition precedent Is not so:itlsfled on or before August 31, 2013 (the "APQ.COV!.}IS Dcadlino") then Buyer will be entitled (but Buyer will not be obligated) to terminate this Agreement. Upon such termination by Ouyer, the Deposit will be refunded to Buyer and the parties will be relieved of all further liability under this Agreement, except for those ob:igations which expressly survive termination of this Agreement.
6UJ?PJV<.1I Te;rnination Noli&:fc!. If either (i) the Guvfc!r111111:!11l App1uva!s arP not sufficient to allow for the construction of the Intended Improvements or contJrn unreason;:ible conditions to approval mat are not <Jcceptabe to Buyer 11' its sole discretion or {ii) Seller fails to obtain the Government Appr::iva!s r;rlor to t!le Approvals Deaclline, then Buver will have the right tc terminate th;s Agreement by providing written notice to Seller ("Approval Tern)in!ltior Not:cE(). L';:ion receipt or the Approval l erm1nat1on Notice, the Deposit will be refunded tc Buyer and this Agreement will be terrn1nated oriel will be null arnJ void withoct recot:rse as to either party r.ereto, except for those obilgat1ons tnat exprcss:y survive the termination of :his f1greement.
Se'ler_CQQperation. Setler will cooperate with Buyer in p2rf0rrning ii:s due ciiioence v,i~h respect to the ?roperty and in seekln9 any and all consents,
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permits or :ipprovals regarding the Property as Buyer may request, and Seller will promptly joir1 In ctli cipplh.:allons for building permits, cerliflcates or uU1er
agreements, and permits for sewer, water, or other utility services, other instruments or other pcmn1rs or approvals, the gran:lng of or entry mto \-vh1c!1, by ary governmental or quasi-governmental authority having jurisdiction over the Property, is, ifl buyer's reasonable opinion, necessary to permit tt1e developrrent, construction, use or occupancy of the Intended Jmprovements.
e. FHEC: LIHTC. 81..iyer intends to SlJbmlt an applicati()n to Florida Housing Finance Corporation {FHFC) for Low Income Housing Tax Credits (LlHTC) on or before the Application Deadline established by FHFC, subject to change based upo:i the FHFC determination. If Buyer determines that the LIHTC appllcation submitted by Buyer either will not or has not been successful in obtaining an allocation of LIHTC In an amount sufficient to construct the Intended Improvements, then Buyer will be entitled (but Buyer will not be obligated) to terminate this Agreement by providing written termination notice to Seller and upon such termination by Buyer, the Deposit will be refunded to Buyer and the parties will be relieved of all further liability under this AgreEment, except for those obligations which expressly survive termination of this Aweernent.
6. t;o:it~llii!Ots of Seller; Qneration of the Property. Seller hereby covenants and <t:JrePs that from and ;:ifter the Effective Date:
a. Seiler will not, without the Buyer's prior wdtton consent, create any encurnbrarc:es on the Property. For purposes of th;s provision the terrn "encurnbrances" Includes, but is not limited to, any lions, claims, options, or other encLl~nbrances, encroachments, rights-of-way, easements, covenants, conditions :)r restrictions.
b. Sei!c-r will p;:iy ;:ill a::;::;c::;:;mcnt::; and taxc::; prior to becoming delinquent.
c. Seiler· »Nill not create or consent to the creation of any specinl taxing districts or associations with the authority to impose taxes, liens or assessments on the Property,
d. Seller will not remove any fill vi cdu:>e any d 1cirrgt:: to be n1ode to the condition of the Property without the prior written consent of Buyer.
e. Seller will take no at:tion with respect to the Property th<lt would alter or affect any or the representations or warranties or Seller under this f\greernent or which -.v011ld in any manner affe::t Buyer's future use and development of che f-'ropert/.
/. Closing CQns.:l!J:ions. bu,1er's ob!Jqal!on to ciose this transaction wlll be suoJe:::t ro the sa:isfaction of eac; of the following c:md1tions on or before the Closing Da:e:
·Hf!.<'.'#;'( I! I
~ ~1) ;(h.:
Seiler will -iot be :n default unjer any term, coven;:mt or ::ond1t:on of th1::> Ac;reernent, <ir j V';il; have performed all of its covenants, a9reements ancl obliga:ions under this Agreement.
Each of the represcn:at1ons and warranties of Seller set forth in tt-.1s A<,;'ee1r1ent will be true, complete and correct on the Effective Date and Jt the
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cate of the Closing as if rnade at that time, and the Seller will have delivered Its ce1:1ficate to such effeet.
c. !:Suyer w11J have rece1vec an award ct UH re funds trom f-HrC sufficient to constr-uct the Inte:-ided tmprovements.
d. Buyer will have received a loan commitment in writing from a lender of Buyer's choice committing to provide financin°;;J to Buyer in an amount 5uff1c.ient t:i construct the Intended Improvements.
e. There will not be a sewer, water, building or other moratorium, condemnation or any proceedings, either in effect which would interfere with the Immediate constructic·n and occupancy of Buyer's Intencled Improvements (".M9ratorit1m").
f. Tl1e Property has not been damaged by any casualty, lndudlng, but not limited to f.re, flood, nnd sinkhole, or by any environmental matter.
Q. Adequate public facilities ar-e available at the Property with sufficient capacit•/ to service the Intended Use, including, but not llm!ted to, sewer and water 11tilitie<;.
h. At the Clos1n9, the Title Insurance Company will Irrevocably commit to issue to Buyer an ALTA Ownel''s Policy of title insurance, elated <'ls of the date and time of the recording of the dee.j, In the amount of the P0rchase Price, msuring Buyer as owner of good, marketable and Indefeasible fee simple title to the Property, free and clear of licnc and encumbrances, and subject only to the Permib~d Exceptions (the "H.l.a.£.llil<;y").
i. Sole and exclusive possession of the Property will be delivered to Buyer at Closing.
In the event that any o~ tile foregoing conditions precedent to Closing have not been satisfied as of the Closing Date, Buyer wll: have the right to waive any or ail ·:if the forego1--19 conditions and close this tninsactlon or Buyer will have the right to terminate the Aweement, and in such event the Deposit and all lntt:?rt:?st earned thert:!on will bt:! refundt:d to Buyt!r C111d 11eitl1e1 party will have any further rights or obligations hereunder, except those obligations which survive terrnlnat:lon of the A.greement. If at the time of Closing, there is a Morat:irium in effect. with respect to the Property as described herein, then at Bu1er's option (by written notict tu Seller); (1) this Aweement will bs terminatec and in such event the Deposit will be refunded to Buyer and nelt11er pa~'ty w111 have any turtt~er rights or otlilgat1011s l1ereunder, except lhose obli~:citrons 'Nhich survive terrnination of the ?.1Jrcement; or (:1) Buyer may proce<'!d to Closing.
2. Closing 02s;uments Tr.e Ciosir.0 documents will i)e rroviderl bv the parties as set forth below, in forn1 acceptable to Buyer;
n. At Closin9 :)f.'lier will ex::-:-ute Dnd/c.·r deliver to Buyer:
i. Soecia' \Nivronty Deed. A speciul warranty cleed in recordable form, cul'-' executed by Seller .. conveylng to the Buyi:r good, rnarketdb:e an.J
/
insu:abie fee simple title to the Property subject only to the permitted exc.:ptlons as reflected in the Co;nrnitment which have not been oojccted to ':JY Buyer, with the legal description provided in the Cu;' i!lli u rie11l.
11. Aff.L~2v11;. An owner's and contractor's affidavit adequate for Utle insurance to be issued by the Title Company without exception for part;es In possession, mechanics· or materlalmens· liens and to permit lhe Title Company to delete the "gap" in the Title Commitment. ·
iii. FIRPTA Affida\llt. In order to cornply with the requirements of the ForE:lgn Investment Real Property Tax Act of 1980 ("FIRPTA"), Seiler will deliver to Buyer at Closing Seller's affidavit under penalty of perjury statlng the Seller Is not a "foreign person," as defined In Section 1445 of the Internal Revenue Code of 1986 and the U.S. Treasury Regulations thereunder, setting forth Seller's taxpayer identification number, and that Seiler Intends to file a United States Income tilx return with respect to the transfer. Seller represents and war~ants to Buyer that it has not made nor does Seller have any knO'/\'lecge of any transfer of the Property or any part thereof that ls subj2ct to any provisions of FIRPTA that hils not been fuliy complied wilh by either transferor or transferee.
iv. Clo~,grtificatf;,;. A duly executed certification that ever/ repp.:;ent2tlon Find warrnnty of SPliPr 11nriF>r this Agreement is true and corr·~ct as of the Closing as if made by Seller at such time;
v. Autronty Documf'nts. Any and all documents reasonably rcqum;ted by Buy.Jr or the title company in connection w;th Seller'<; authority t0
execute tilts Agreement, the deed and all other documents contemplated under this Agreement;
vi. ~q Statcmgnt. A clo$lng !'.;taternent prr.!pared by Title Agent setting forth all amounts paid, credite1:1 and otherwise due, payable and paid hereunder ("Closl_ng SJ.QkffigJ_l_~"); nnd
vii. Qth~r Document~. Su~h additional documents or inst;urnent:; as m.:iy be required to effectuate the terms, conditions and prov:sions hereof and to c.a11 y vut the Intent of U1e parties t1ereto. or as may be reasonably required by the title insurance comnany, s0 as to t:e ab:e to delE:le a~ CloslmJ nil of lhe re4uirerne11b ur SL11t:du!L: B-Sed1on t of the Tl:le Commitment a :id all of the standard printed <~xceptions (ot11erthar: ttle exception for taxes and assessrnento, for t11e currel!I. ye<i1 •u;;t yet Jue a<)d p<Jyable, and the survey exception, wc1ch wlil be limited to the spec1f;c rnatters affecting ttie Property refleLted 01» th~; Sui vey) fro-r Schedule 8-Section 2 of the Title Comm1trnent, and to ns:1re the 9::ip be:ween tr1e efrective date ot tr.e 11t1e Lomm1tn1ent ancl rlle reccrding of the deed conveying title to the Propertv from Seller :o 8uv:r.
b. At C\o~.ing, Buyer will deliver to Seller:
(i) Closir1y_Statement. Closinq St;;tc1~1ent e;-:ecuted in co•.interpart;
(Ii) Assignment Agreement. The Asslgnrnent Agreement executed in counterpart;
(i11) Purr.base Price. The Purchase Price (as adjusted tor all crents, JdJJStments a:Jd prorations set forth In this A£reement); anci
(iv) Otl1er Documents. Such additional documents or Instruments as may be reasonably required or requested DY Seifer to effectu0te the terms, conjitions and provisions of this Agreement.
9. C\osing/Closing Expenses. Except as otherwise provided herein, the consummation of the transactions described in this Agreement (the "\:;lQsillg") wi<I take place using mail away procedures no later than November 15, 2013 (the "QQfiln.g...Q.at.e"). Time is of the essence. If this transaction has not closed and Seller has not been pa'd the full Purchase Price on or before December 15, 2013 (the "Q·Jtslde Closlnua.~"), for any reason other than a default by Seller hereunder, then either Seller or Buyer may terminate this Agreement, by written notice to the other party and Escrow Agent, without liability to the other, except that the Third Deposit wiil be returned to BuyP.r nnd thP. First DP.rosit ;mrl Second Deposit will be delivered to Seller and all parties will be released from all further obligations or llabillty under this Agreement.
At Closing, Seller will pay the cost of documentary stomp tax on the speeoa) warranty deed and all tltle search fees and other costs pertaining to the Title Comrnitrnent and for the title ins1..u-ance premium on the owner's title insurance policy to be issued to Buyer pursuant to the Title Commitment in an amount equal to the Purchase Price. Buyer will pay the foe for recording the .special warranty deed, the costs ot tl'P Survey and costs associated with obtaining financing, permits and impact fees in connection with the Intended Use. Each porty wlll poy its own attorneys' fees.
10. Prnrntions;. The following items will be adjusted, apportioned, und ollowed ;:i·:; of the Closing Date:
a.
"'!;I I· ~""1f¥. '.,!\! t ll&bl"~l ... •f1.
$Decial Assessment Liens. If, on the Closing Date, the Property or any part lhereuf, will be or will hiwe Lieer1 affected l•y cir1y certified, confin-,.ed, and ratified speciai assessrnent liens, the same wi!I be paid and discharged by Seller. Pt?:idlng llens wlli be assumed by Buyer; provided, r :<Jwever, t11dl 011u~
the amount of a pending special assessment lien has been finally determined, rhe amount o• the special assessment lien will be proratej and Seiler will reimburse Buyer for any amounts paid by Buyer which nre o!locat11e to tne period ot time Seller owned the Property within trlir{y (jlJ) :Joys of 5uy;;•"s delivery to Sc·lier of the proration statement.
t?~eal ~Stilt" Tax_c;;.,. lf the Closing wiil occur before :he tax rate is f:xed .. Ute apportionment of taxes will be based t1po0 the real estate taxes !or n1e pre\1ious year. If the tax rate is not fo;ed at Closing, the parties agree lo make an <:ippropriate adjustmer.t upcn the issuance of the actual st.::temcnt for the taxable vear. Thus, if at the tirre of Closing, t'le :axes for the current year have net been f:nally deter,·nincd, Seller or Buyer, as the case may be, aqree to pay any !Jaiance later ~ound to be due on t;ic rcproratlon of the actual taxes for the year in which the Closing occurred, w1:h1~ t!1irty (30) dilyS of the determination thereof.
c. The provisions of this section wili survive the Closing.
11. Seller's R~presentations and Warranties. Seller ;-epresents ancJ warrants to Buye1 <cin<J C\JVenanb <lllU cti:Jrees will> Buyer d'..> ful\vws:
d.
b.
C.
d.
e.
J< ,:·)"-f41 ; ii! ·n,~::
Seller !10s n:Jt entered ln~o any contraccs, s11hc:ontracts, arrnngements, :eases, licenses, concessions, easements, or other agreements, either ~ecorded or unrecorded, written er oral, affecting all, or any portion cf, or any interest rn the Prcperty, which will not have been terminated or expired prior to Closing. ;,-.iotwi thstanJing tt1e fo.~~oing, Seil?r _ ~~~'/ enter i:1to a lease agreement (the Church Lease") with lllit:C'c <'!.'.:_RA11$t1,:;>tt';Church (the "Churs;b") for the
purpose of leasing the Property to the Church/ Th7 term. 9.f the Ch1,1rch. Le~s~.,,.. wlll terminate no later than January 31 2014·!.j, '"''(• C.Nµ.lS>r;v1 # t..vtf ll>k 11
I ' c. r;.·.+' l)J:f'Z
There are no: ( 1) existing or pending improvement or speclal assessment Ii ens affecting the Property; (2} vlolatlons of building codes and/or zoning ordinances or other governmental or regulatory laws, ordinances, regulations, orders or requirements affecting the Property; (3) existing, pending or threatened lawsuits, or appeals of prior lawsuits, affet1:inq the Property; (4) existing, pending or threatened condemnation proceedings affecting the Property; (5) existing, pending or threatened zoning, building or other moratoria, downzoning petitions, proceedings, restr'ict1vc ailocations or similar matte~rs that could adversely affect the development of the Intended Improvements on rhe Property; or (6) unrecorded easements, restrictions or Pncumhram:es affectlntJ ail or any put of thA Propro>rty;
Seller has not used, :nanufactured, stored, or released any "Hazarc!ous Materials" (as hereinatter defined) on, in er around the Property, and, t:o Seiler's kno,vledge, no other pe.-scn ::ir entity has ever used, rnanufacti irerJ, stored or released <Jny Hazarcous Materials on, in or around the Property, and, to the best :.f Se!le1·'s knowledge, no Hazardous Materials are present in, on, under or around the Property. As used herein, "Hazardov:i I'.'l?.~e.r:Lals" 'Nill :nc.:in petroleum ;:ind petroleum b;::iscd product:; ;:ind ;rny other !:;Ubstance or material, the use, manufacture, storage, release or prf>senr.e of which In land, ·..vater or elsewhere in the environment Is limited, prohibited or ln .:iny other way regulated by any federal, state or local law, ordinance, rule or regulation. Seller f1J1ther represents and warrants that, to Seilcr's knowledge, no portion of the Property has ever been used as a landfill or a dump;
Th("!re arc nv «19reerncnts cun-ently in effect 'Nhlch prohibit or restrict the salf' of the Property;
$elier f1Js t:1e ~lqm, power an:J auli10rlty to execute and dcliv'"r U >b .~~1reerne'"1t, to 12e~form each and every obii(Jc tion of Seiler hereunder, and to consumm0tt the transaGlors contemplated by :t; no consent, apµrnvais or duthonzalions ~rem any pcrs()f1, ent:ty or· governrnentc:i' autho,-ity is requ;red w1t!1 respect tons Agreement and the consurnma:1or. or the transaction con tcmplt:ited horcrn; neltrcr tr1c execution and deliverv of th!S AgreeT1ent, an~i the perfo --:~·1ance or consummation cf the cbligatwr s and tnnsactwnsc contemplated by it, nor tt-.c:: fulfillment of, nor tt1e compliance with, ~he terms, CU!ldit1ons and provisi~Jr•s of this Agreeme11: will CJnflict with, or result n1 o vio!at:on or oreach of, ;ny relevant law, '.)ran>; other lrstrument or ilgceement of a:1y nature tu whict1 Seller is a partv Jr by w•·iich !: :s bounc: t:r may be
-:O-
affectec, or constitute (with or without the giving of notice or the passage of U111e) o defe',ilt under such ar Instrument or agu::ernent;
f, :'lo u11H:co1 Jt:Ll curnmillm.:11b or agrei:;ment::> .l1ave lJeen ma Le !Jy Seller tu any governmertal autr.orlty, utility company, school board, church or other rellglous :nuy, iJny homeowners er homeowners' association, or any other organizatio:1, grou;) or individual, relating to the Property which impose an otligarion ;pnn 11uyer to make any contributions or dedications of money, land, or 0ny interest in land, to construct, install or maintain any improvements or a putJlic or private nature on or off the Property, or other.vise :rnpose any obligations or llablllty on Buyer or the Property;
g, All utlllt\es, :ncludi;1g, without limitation, water, sewer, electlicity, telephone, gas and cable television which are necessary or deslrable and In the capacities or size required for development of the Property are available at or near the boundaries of the Property at the rates generally chargeable to developers in Semlnoie County, Florida;
h, Ali aqreern2nts, documents, studies and other materials deHvered to Buyer are true, corTect and complete copies of all such Items;
i. Seller has ~ecelved no notice and there is no violation of any law, regulation, ordinance, ::Jrder or judgment affecting the Property;
j, SellPr nw'1;:: thA Prcrprt·y 1n fPP s1mrle. snhjP.ct 0niy to tt1ose matters disclosed in the Title Commitment,
At a!I times dunno ttte lerrn of this A9feement and as of the Closing Date, all of Seller's rerrcsentations, warranties and covenants in this Agreement will h0 tn1P <ind correct; no representation or warranty by Seller contained in this Agreement and no statement delivered or 1rJormation supplied to Buyer pursuant to this Agreement contains any untrue statement of a material fact or omits to state a material fact necessary in ordec to make the statementc or information contained in them or in this Agreement not misleading, The provisions of this section will survive the Closing.
12. Broker. Seller a1d Buyer represent and warrant each to the other that they have not dealt with any real estate broker, sales person or finder in connection witt1 this transaction. except Selfec has dealt with Coldwell Banker Commercial Coast Realty. Seller will pa)', tt'rough separate agreement, Its own broker. In the event of any claim for a brrJker's ::ir a fi:1der's fee or comini:;:;1vn in r;onnection witll the neaotiation, ex&c.1tion or corsumrnation of this Agreement or the t'·ansactions rnn1·emplatr.rJ herf'h}', e0rh p.1rty wi'I deft:nd, irdemnify <lrd hold h.1rmless the otl1er µarLy frofll .a1;d <it,,iin:;L any such ciairn based u::>on any statement, representation or· Agreeme11t of s1v-+1 riarty. °LH" nrnt112I in~lemnities a:1c re:-Jresentatior;s and •.varranties of e:i<b of Sellicr and Buyer in this sec:i(;n will survive the Closin9.
:13, Damago, Destruction or Conderoni"t:ion,
a,
<~~I' "')~.f1. ~.<).o I ' ?.?lif:~i\)i~.1~
R!?.:.~:,:· \,Q:,;;;. Risk of !05s to the Property occdrring prior to the Clc,sing Date will be bon-,e by S<e\lf'r,
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b. ,kasualtti22.S. In the event of any loss, damage or destruction to the Property prior to Closing, Buyer rnay e:i::d either (l) to proceed with Closin9, nil.r '''·'t. cidustment of the Purchase Price, ancl Seder wHI assign to Buyer all 1nsurorn,e fm.>ceeds received as a result of thF. loss, damage or destruction, or (ii) to terf".'inate this Agreement, In which event the Deposit wlll be ret:Jmed to Buyer. Seller will prornptlV notify Buyer 1n 1..vri:ing of any casualty to the Property. Buyer will make such election within ten (10) business dJys foliowmg ~::'eller's written notice to Buyer of the casualty event, and It such election is not timely made, Buyer w!IJ be deemed to have elected to terminate t111s Agreernen~.
~onr,li:;mllQ.llim. In the event that any condemnation proceedings are Instituted, or notice of Intent to condemn Is given, with respect to all or any portion of the Property, Seller will promptly notify Buyer in writing thereof, in which event Buyer wll I have the option either to terminate this Agreement and receive a refund of the Deposit, or to consummate the purchase of the Property without reduction of the Purchase Price and the right to collect any condemnation award or compensation for such condemnation wid be assigned by Seller tc Buyer at Closing. Buyer must make such election within ten ( 10) business days following Seller's written notice to Buyer of the condemnation proceedings, and If such electlon is not timely made, Buyer wil! be deemed to have elec:ed to terminate this Agreement.
The provisions of '.his section will survive the Closing.
M. Default. ln tne c1ent ttiat Buyer tails to pertorm its obligations hereunder and sucr1 failure is t11rough ·10 fault or failure of Seller to comply with Its obligatlons hereunder, Seiler may, as it!: so:e, exclusive and absolute remedy, terminate this Agreement and retain, as fuJ: and complete agreed upon liquidated damages, the Deposit. lf Seiler will refuse :o close, despite its obligation to close hereunder, or it any ot the representations, warranties and covenants of Seller will at any tin1e on or before Closing be found to be false or misleading in any material respect, or if Seller is otherwise in ciefault under the terms and provisions of this Agreement, Buyer may: (i) terminate this Agreement and obtain the return of Its Deµoslt, or (11) seek specific oerformance of Seller's obligations hereunder, unless specific performance is not availublc to Buyer, in which case Buyer may seek any other remedy available at law or equitv. Notwlthstandino anything to the contrary herein, there shall be no default of Buyer hereunder unless and untn Seller shall have provided Buyer written notice of such defauit and Buyer shall have failed to cure said default within one-hundred twenty { 120) days of its receipt of such notice; provided, h<>wever, that if Buyer is y1,1hlP t() r:i;r0 w1~hin s2irl tlmP pPrlorl, R11yPr stvtll hi'lvP. such time to cure ilS is "easonabie under the circumstances provided that Buver· has underta i<en efforts to cure in said tim~ p-t?riocL
SELLER ACKNO\'KEl!GES A:-.JD AGREES THAT FAILURE TO CONSlJMMATE THE·> TRANSACTION W:LL CAUSE SUBSTANTIAL :JAMAGE TO BUYER, AtD MAY INCLU'.)E sr1 EC!J\L, COf.!SE(JENTV•.L AND li\JDIRECT OAH/\GES.
1 ~.. ~· ;'.\Ji notices, r.onsents .. ;1pprovals, waivers ,3;1d elections which uny p.3'i:y will ()e requirej or w;ll desire to m2kc or give under this A.::ireernent >·vit: be in wr:tinq and g;vcn by deliver-,. 1 per'.>on, or sent by facs m11e or e;1ail, as prov;dect llt~low:
~ t l -. v-~·· ';>J ! :_o;:;'J.¥::
,, ·'l : ;il7 •>'<'11
To Buyer
w1m a copy ro:
To Seller:
With a copy to:
To Escrow Age'<L
Plceme Development Corporat'lnn d Florida 217 N. Westmontc f.>nve Alt.~rn<mt,> Spnnp:;, Florida 32714 Attention: Jorqe Aquirre Telephone: (407) 772-0200 Facsimile: (407) 772·0220 Emal!: Jaguirre@p!rpm,:>fl.com
:sroad iH\d Cassel .>:io N. Or,;,nge Avenue, Swte 1400 Orlarido, flor1da 32601 .A.ttentlon: Hollle A. croft, Esq. Telephone; (407) 839-4239 Facsimile: {407) 650·0979 Email; [email protected]
Broad and Cassel .100 N. OrangP. Avenue, Suite 1400 Orlando, Flo1ida 32801 Attention: DoUQlas Stanford, Esa. Telephone: (407) 839-4222 fiKshnile: (407) 254-1210 Emi.'lil: dstar1fcrd@lbroad andcasse!.corn
No: .. jLes, tiJns~r~t~,. 0p~nuvr.::tls. vv-~ivers .0-nd ..,.tHctiun~ y;ver1 U<I nidde as aforesaid wlll be deer:)ed to 1- ~ !>>~'-" ciDt•"<I. rJivNi tirn1 -,, dved: (i) on the (late of acr.iz,; rece1rt 1f transmitted ty wern.ght courier, nand delivery, or u.s. MOil, return '"''-"'ipl _.. ,,_:, «f :i ~;'J""i reteiN Is obtaired; '.i:) on the dal.P of tr<:iHSrn!:.sion, if
t ·;:' -ll ' ..... tY' : '< j•'i dnd 1,.,<)n"'r:·11at: .. H; o: ~o.UCt'.t.'.~,::~L:l ~r,_H".<!~ISSlOrl ts p!Ch/idcd !Yy'
.. .. 1'· ·:i:+. • ~:·:1ei i, p;-.:v d1:d '.ht ·.c:C:p"erit emails acknowle•j9ernt:nt uf r,;;ce1pt, 1n the ats2nce of which a cop'{ will al!'.o oe sent via overn1gnt cc·uner, elf·~~:tive '3S of :he dcti' of deliverr to the overnight courier.
Assignmt;.!lt. Buyer'"''" be entitled to ;:isslgn BuyQr'o r«iht:; .<nd obligations under tcw'> N;reerne:nt tc ;,iny ot:1r:r rclnted entity own::d by, controlled by, under C'Yff"non
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control, or affiliated with, Buyer. Any other assignment will reqcire the prior written ::onsent of Soller.
17. Badon Gas Notjs;Q. f'ursu<:1nt to Florido Sta:u~es Section 404.056(5), Seller •ercby makes, and Buyer hereby acknowledges, the following 'lotlflcatlon:
RADON GAS: Radon is a natural v occ:urring rilc!innctive gas that, when t h.1s cccumulated in a building lo sufficient quantities, may pr~sent health lisks to persons who are exposed to it over time. Levels of radon that exceed federal and state guidelines l•<JVe l.Jee11 found in buildings ,r; Flonc..ia. Ac..i<Jlllondl !11fm111atiu1t regarding radon and radon testing rna 11 be obtained from your caunty public health Uf ;it.
18. sssrow Agent.
a.
b.
(',
d.
l ~ ~ l ! \ ,.-, - ~,; I! I
.. 1ti:"~ ...... ,~',:
Escrow Agent undertakes to pertorm only such duties as are expressly set forth in this Agreement. Escrow Agent will not be deemed to t1ave any implied duties or obligations under or related to this Agreement.
Escrow Agent may: (a) act in re:iance upon any writing or instrument or signature \Yhic:h it, In good faith, believes to be genu:ne; (b) assume me validity and accuracy of any statement or assertion contained In such a writing or instrument; and ( c) assume that any person purporting to give any writing, notice, advice or ii1structlons in cor1nection with the provisions of this Aoreement has been duiy authorized to do so, Escrow Aqent will not be liable In any manner for the sufficiency or correctness as to form, manner of execution, or validity of any instrurnent deposited in escrow, nor as to the identity, authority, or right of any person executing any instrument; Escro>".' Agent's duties under this Agreement are and will be limited to those duties specifically provided in this Agreement.
The parties to this Agreement do and will Indemnify Escrow Agent and hold 1t hr>rrnlesc; fr()m :my ;inrl 1111 rl111mc;, i1abiltt•e<;, losc;e«, .:irtlnns, suits or proceedings at law or in equity, or other expenses, fees, or charges cf any character or n<iture, including attorneys' fees and costs, which It may incur or with which It may be threatened by reason of its action as Escrow Agent under this 11.grecment, except for such matters which are the result of Es-crow Agent's gross negligence or willful misconduct.
lf the parties (inc:1ud1ng Escrow Agent) wlll be in disagreer-:-1ent abc,Jt the interpretation of this Agreement, er about their respective rights ilt>d
obligatons, or about the propriety of any action contemplated by Escrow Agent, Cscrmv Ager:t may, but •.viii not be required to, file an action 'n inteml:?ader to resolve the disagreement; upon filing such action, Escrcw Agent wil: oe released from all obligations unde:· this A9reement. Escrow Agent 'Nill be indcmnifiM for all costs <v1ci reasonable attorneys' fees. ir1c!utJi;1y '.hi::,e fur dp!Jt>llole f!ldllers d!lLl (u~ Pdfdleyc1b dlltl Si:'l1iia1 persons, inwrred in its capacity as escrow agent in c:>nnectlon w!rh any sud1 interp:eader action; Escrow Agent may re;nesent ;tseif In any suet; intcrpteader act:on anc ci'iar;e its usual and customary lcga: fees for suci" re,'.)rescntaton, and the court will award such attorneys' tees, T•Clud1ng those for dppell.ate matters and for paralegals and similar persons, to Escrow Agent from the lc:sing party. Esc:-ow P..gent will be fl;lly protected in suspending d:i
or part of Its activities under this Agreement until a final judgment In the intcrplcndcr action Is received.
e. Cscrow Agent may resign upr;n five ('.i) calendar days' Nritten notice to Seller and Buyer. lf a successor escrow agent is not appointed johtiy by Sel!Ew and Buyer wlth:n lhe five (5) Cdler1CiJr-day period, Es1.nY.v ;\se11l '"dY petiL1011 a court of co~npetent Jurisdiction to name a successor.
f. Seller and Buyer acknowledge and agree that Escrow Agent is the law firm representing Buyer w1tr1 reg:ird to this Agreement an(.! tt1e trnnsactlon which is the subject hereof, and hereby waive any claim a9alnst Escrow Agent based upon a cont:lct ot interest as a result ot Escrow Agent serving in such dual capacities, excluding only actions by Escrow Agent constituting knowing and intentional misconduct. Seller further agrees that Escrow Agent will be permitted to represent Buyer in all aspects of this Agreement and the subject transaction, including, without limitation, any dispute with respect to the Deposit.
g. rhe provlsi:ms of this Section will survive the Closing a11d also the ca11celiation of this Agreement.
19. General provislvns. The following general terms and conditions vpply to this Agreement:
a. SmCILJlar/PJura! - Mas..culineL.E.e.r:nlnJne. words used herein In t!Je sinqular will include the plural and words in the masculine/feminine/neuter gender will inrl11rlP warl.:; in thP m;isrulin0/fernini nn/neurc<r whnre the text of this Agreement requires.
c.
d.
e.
f.
111.ll ·':~,:,(L\(,.H
~i~Uffl\J
Title':!. Headings in this Agreement are for convenience on:y.
Successors. The terms, covenants, and conditions of this Agreement will be binding upon and inure to tile benefit of thG parties hereto and their respective ileirs, successors, and assigns, except as herein limited.
ChQjce of Law. THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF FLOR.IDA AND THE LAWS OF THE UNITED STATES OF f\MER1CA APPLICABLE TO TRANSACTIONS WITI IIN Tl
lrrevocabry and unconditionally waives any right It may have to a triai by jury. This waiver is made knowingly, voluntarily and intentlonaily.
(J. !\U.m:llQY'~ Fee:::. rn the event thnt there i::; litigation either 0t l.::iw or in equity, brought by either oarty against the other by reason of any matter or dispute <:msin::! out of thls Agreement, the parties agree tt1at the prevailing party in such litigation wld be entitled to recover from tt1e non-prevailing party the prevailing party's reasonable attorneys' fees therein, includinn fees incurred tn bankruptcy proceedings or on appeal, p1us court costs.
h. J.lability Jo nt and Several. If mere than one partv Is named herein as Seiler, then !;UCl'l parties t1ereby a9ree that the llablllty of eact1 l1ereumlt:!r wl II !Je Joint and several.
i. J;nti(e Agreement; Coostructjoo; Severabil!ty. Tt1is Agreement integrates and supersedes all other agreements and understandings of every character of me parti€s and cornorises the entire agreement between them. This Agreement may not be changed, except In writing signed by the parties. No waiver o~ any rights or obllgatlons hereunder will be deemed to have occurred unless in wnt1ng signed by the party against whom such waiver is asserted and no waiver wll! be deemed a waiver of any other or subsequent right or obliga:ions. The partJes acknowledge that the parties and their respective counsel have reviewed and reviseci this Agreement and, therefore, the nom1al rule of construction of contracts that ciny ambiguities are to be resolved aqainst the draftlnq party will r.ot be employed In the interpretation of this Agreement and any exhibits or amendments thereto. If any portion of this Agreement is held to be Invalid or Inoperative, the remainder of it will be deemed v2ild and operative, a~1d effect will be given to the inten~ manifested bv the port on helrl invalid or inoperative to the extent possihl2
[rn1ntPm;irr Siorvitures. Thts AgrePment may be executed in two or more couriterparts, and It shall not be necessary that any one of the counterparts be eYecuted by di! of the parties hereto. Eacn fully or· partiallv exer:ut'"d counterpa11; shall be deemed an original, but all such coLnterparts taken together shall constitute but one and the same instrument. This A9reement may be executed in multiple copies, and by telecopy or email PDF transmicsion, each of which shall be deemed to be an original for all purposes.
20. Confidentiality. Seller and Buyer each a "Party" for purposes of this Sect;on 20) acl<nowledgc that the transaction described herei1 is of o confidential nature and snail not be dis~losed tJy any Party, nor by any of :heir respective parents, S1,;bsidiories,. eff'tpiciyees, or affiliates, except lo partner-s ;.:~f Seiler ~r~d f'urchosr~r,
Attrimeys, FHFC, lenders, poterti2: ec;tiity sources, 2ccourtants, consdtants, advisors, memt>t:::i:> ancJ affiliates. as a re:>ult of any action requlf'ed to be performed by a pa-ty under cr·iiS Agreement, or as required by lav,_ Prio,· to Cos•ng, no Party stiall milk<.' i:!-1y p 1Llic: iiisclr)sure uf Uu:; :,pecJ .. c lerrn~ uf l111::. Awe.:1111.::·:t, except os requn·ed by iaw. In connection with tho neqotation of this Agreernenl dncl the preparat11)n for tile consummation of t'1e transactions conternp1atecl t;crctJy, edd 1
Purty acknowledges that It v;lll have access to confidential informatior relating t0 the other party. Eac11 Pciri:y s:-iall treat suet\ 1 nr0rrnat1on as conf1::1ent1a:, prese-ve tne confidentiality thereof, i'lnd not dup:icate or use such information, except to the rartncr.5 of Seller or Pw-chaser .. and attornevs, FHFC, lenders, potential eqwty
-l 6-
scurces, account<:nts, advisors, members, consultants, and affiliates in connection wilh the transactbns contemplated hereby. Jn the event of the termination of tl1is Agreement for any reason whatsoever, Purchaser shali return to Se!ler, at Seller's request, all documents, work papers, and other material (including all copies thereof) obtained from Se,:er in conneciion with the transactions contemplated hereby, and Pndo rnrty shall t:se rPi'.ISOnable best effort<;, inrit1dill\:) in<;t111ctin'] its emrloyPPS ;mo others who have had access to such information, to keep confident;al and not to use anv such informz:lon except as otherwise permitted by law. Neither Selier nor Purchaser shall make statements to the press or •ssue a press release regarding the transactlon contemplated by this Agreement prior to Closing but may do so after Cosing without the consent of the other party; provlded, however, that any statements to the press or press release by Seller or its employees, directors, constituent entitles, or any of their respective representatives must not disclose the Purchase Price. Notwithstanding the foregoing, after Closing, Seller mily disclose the amount of the Purchase Price for the Property to actual and/or potential Investors and/or actual or potential lenders In similar p:·ojects of Seller (or Its affiliates). Further, notwithstanding anything contained in this Section 20 or elsewhere in this Ayree1111!11t to llie cu11t1ary, neitl11::r Purd1tl::.er nur Sellt!r shall h<ive any liability conct!n1i11g information (including, without !imitation, Information regarding the Total Price) which becomes public due to no wrongful action on t11e part of such pctrly, u1 wri1th is ordered or required to be publicly released by the requirement of any governmental agency or entity.
2L Exclusive RigtU. From and after the Eftective Date, and during the term of this Agreement, Seller shall cease marketing the Property to prospective buyers. Seller shall not seek or accept back-up offers for the purchase ot tt1e Property. srould there be ? rJd0uit of Buyer hereundet thnt wollld perrnit Seller to terminate this Agreement, no termination shall be effectve unless and until ti1e Buver has had tt1e opportunity to cure as set forth herein.
22. Optlon;.Bigl:Jl...Qf Eirst Refusal. For consideration paid of $100.00, Seller hereby grants Buyer an option to purchase the Property at the Purch;:ise Price, plus $10,000.00 in the event that this Aqreement is terminated for any reason (the "Oo~ion"). Such Option may be exercised by Buyer at any time after termination of this Agreement but prlor to January 31. 2014: provided, however, that this Option will automatically terminate In the event that Buyer does not make the ThircJ Deposit. Upon execution of this Agreement. Seller shali execute a Notice of the Option anr! deposit same with the Escrow Agent. Upon making the Third Deposit, thP Nntlce -Of thP. Option sh;:i!i hA ;:iutom;;itir:;illy rP.IP.ilsed to Buyer, and Buyer may record Notice of the Option in the public records o' Seminole County, Florida F~ rther, for consideration paid of $50 00, Seller hereby 9rants Rr:ypr ;~ right of first refusal to purchase the Property following termination of the Option until May 31, '.>() l ·1; provi<Jecl, lcowever, that this right of Fi-st refusai shall aut•.)maticaliy term1n"l~f'· in the e·1ent that Buyer does not make the Third Deposit. Upon execution of :his AqreernB11t, Seiler sh<tll execute a Right of Fir!;t Refusal and deposit same w•tt'1 the Escro1N Agent. Uoon ma!<i:-ig the Third Deposit, the ?.1grit of First Refusal sf1ail '.)e .:iu:ornut;c;:illy rc'c::i:;cd to Buyer, ;::ind Buyer may record Nobce of tre Option in t· .. e puJ.ic reccJrds of Sem1:io:e County, Florida.
23. Memo1·andum of Agr§ement. Buyer may record a MemorarlCliln of tl'i:~' Aqreen•ent in th"" public reconfa of Semir\ole Cou:-1ty, r1orida and Seller shciil cooperate w1th an; request by Buyer for same.
--1~ 11, ""';9'}, ~·rn <
·nt..->1::uoo? · 1 7-
IN WITNESS WHEREOF, the parties have executed this Agreement as of the Effective Date.
BUYER:
Picerne Development Florida corporation
ion of Florida, a
By: -·===-==-Name: fM)t:.(.\ 'j--\ ' 1~ 1\( t I' n 1'.'.. Title: v'«· e"')•<1-t.YI+
~h~~n Capital RPsourcas ' . ,,
------·--· .. -·---'a <?~~1~1tt. t..:.orp.
By: r
Name:. ···~-·-~--" Title:
A._Hunt, Jr. i,fil+,,_ ----
JOINOER OF ESCROW AGENT
Broad and Cassel has joined in the execution of this Agreemen: in order to acknowledge its agreement to act as Escrow Agent in accordance with the terms and provisions of this Agr;,~ent .
I I . /J/J. . /.-1-J~~. _'/!Jfll~~ road and Cassel
Dated ¥0~
a: :i~·"'•,·f'n.
: ~,o •,~I.JC! ·18·
EXHlBU "8"
Legal Description of the P.LQJ?g[1:y
Le9al Desuiption
LEC SEC 07 TWP 21 s RCE 'JOE BfC 2•; r1 N " 79 J ', n [or <; 1./1 PC1ST RUN N 4'.) DEC Is MIN F 305.1 I· r N l OG/4 FT TO f:LY R/W HY SWLY TON R/W NOl\iH SL 10 llEC
Leq,11 Description
LEG ~EC 07 TWP ;>1 s RGE 30E S\N 1 /<I or SL j /4 ',( <)! ',(.! nr~ fl[:\~ [ lCJO n '"' (l[(. ;> 'i rr N Of SW COH RUN [ 10.1 ~ n N 4', DI(, L MIN F 305.1 rT N TO l<R SELY ON J{I\ 10 BIC ,., rm;
L[C E 30(1 FT OF LOT 19 Nor l<Y A E CRIFrlNS SUB[) PB ,' PC 43
Le9al De~cription
LfC SEC 01 TWP 21 s RCE 30F SW l /4 Oi SE 1j4 NW! y Cir S\:L rrn (U.S~ w }97 FT)
2013 LOCAL GOVERl'i"'MENT VERIFICATION OF QUALIFICATION AS A TOD DEVELOPMENT
Name of Development: City Park at Merritt Street
Development Location: 1130 Merritt Street, Altamonte Springs (Af a minimum, provide the addttss lllllli>c£. mm mme :mdcily, andforprovidcthc s12tt1 uamc. closest desigmtedink!scctionandcilbcrthe cily(iflocalr.d widii:o a cily) or county (if located in the uaiDaxpomcd area of the comdy). If the Dcvctopmcot consists ofScattm:d Siles, the Dcvctopmcot Location sbkd above llES1 reflect the Scattrred Site where the~ Location Point is located.)
The undersigned Local Govcmmcnt official certifies that the proposed Development (identified above) is located within the area identified below which has been designated and adopted by the Local Government planning agency in its comprehensive plan. land use plan, land development code, or zoning code as a Transit-Oriented Development, Transit Oriented Development District. Energy Conservation Overlay (ECO), Activity Center, Rapid Transit Zone, Transit Village, or Rapid Transit Development Impact Zone:
• Orange County: 0 Church Street Station TOD 0 Florida Hospital Station TOD 0 LYNX Central Station TOD
0 Maitland Station TOD 0 Orlando Amtrak/ORMC Station TOD 0 Sand Lake Road Station TOD
• Seminole County: ~ Altamonte Springs Station ECO (Altamonte Springs Station - Col.Ulty jurisdiction)
0 East Town Center (Altamonte Springs Station- City jurisdiction)
0 Heritage Village TOD (Longwood Station) 0 Sanford Station ECO
• Volusia County: 0 DeBary Station TOD
CERTIFlCATION
I certify that the City/County of Seminole County (Name of Cily/Couuly)
foregoing information is true and correct.
Signature
has vested in me the authority to certify that the
Tina Williamson Print or Type Name
Assistant Director of Development Services Print or Type Title
This certification nmst be signed by the chief appointed official (staff) responsible for dctcnnination of issues related to transportation or planning. Signatures from local elected officials arc not acceptable, nor arc other signatories. If the certification is applicable to this Development and it is inappropriately signed, the Application will not qualify for the TOD Funding Preference.
If this certification contains corrections or 'white-out', or if it altered or retyped. the Application will not qualify for the TOD F=ding Preference. The certification may be photocopied.
Please note: This form may be modified by Florida Housing Finance Corporation per Section 67-60.005, F AC.
~ 4!''. _____ co_M_M_UN_l_TY_S_E_Rv._1_cE_S_D_E_PA_R_TM_E_N_T _____ Sti\11/;\j()L E 0Jt);l\' rv·
COMMUNITY DEVELOPMENT DIVISION
October 11, 2013
Florida Housing Finance Corporation 227 North Bronough Street Tallahassee, FL 32301
Re: Property Census Tract Verification City Park at Menitt Street 1l30 Merritt Street Altamonte Springs, FL
TO WHOM IT MAY CONCERN:
Per your request we have verified that the Census Tract number is 220.01 for the above referenced property and it is a 2013 Qualified Census Tract.
Please do not hesitate to contact me if we can be of further assistance.
534 WEST LAKE MARY BOULEVARD • SANFORD Fl 32773 •TELEPHONE (407) 665-2300 • FAX: (407) 665-2399 WWW.SEMINOLECOUNlYFL.GOV
NOT APPLICABLE
~PNC REAL ESTATE
October 15, 2013
Via Email
Mr. Jorge Aguirre Merritt Street Housing, LP C/O Picerne Affordable Development, LLC 247 N. Westmonte Drive Altamonte Springs, FL 32714
Re: Merritt Street Housing, LP (the "Partnership") Merritt Street Housing (the "Property")
Dear Mr. Aguirre:
I am pleased to provide you with PNC Bank's (the "Lender") commitment to provide a $13,750,000 Construction Loan converting to a $3,960,000 Tenn Loan (the "Credit Facility") for Merritt Street Housing, a 102-unit new construction affordable housing development located in Altamonte Springs, Seminole County, Florida, subject to the following terms and conditions:
Borrower
Guarantor(s)
Credit Facility
Term of Loan
Merritt Street Housing, LP, a Florida limited partnership (the "Borrower"). The Construction Loan shall be full recourse to the Borrower until conversion to the Term Loan.
Guarantees of completion and repayment during the development period shall be provided by persons or entities acceptable to the Lender. A limited recourse guaranty covering typical carve outs and environmental issues will be required during the permanent stage.
Construction: $13, 750,000
Tenn Loan: $3,960,000
The Construction Loan period will be two years. Upon satisfaction of all of the conditions for converting the construction loan to the Term Loan provided by Lender the Tenn Loan will be 15 years. The Term Loan will be based on an amortization of thirty (30) years. The Forward Committed Term Loan is being provided by PNC as an approved Freddie Mac Program Plus Seller/Servicer.
Interest Rates/
Rate Lock
Commitment Fees (Paid at Closing)
Collateral
Environmental Indemnity
Appraisal Reports and Debt Service Coverage
Merritt Street Housing, LP Commitment Letter
October 15, 2013
Construction Loan: LIBOR plus 300bp (floating over tenn of Construction Loan as LIBOR changes)
Term Loan: Approximately 350 basis points over the 10 Year U.S. Treasury Security. The final permanent interest rate will be determined at the time of rate lock, which will occur prior to the construction loan closing
In order to lock the interest rate for the permanent loan, you must provide us with a refundable rate lock deposit equal to 3% of the loan amount. This deposit will be returned following the conversion of the permanent loan, or it will be retained by Lender in the event that the permanent loan does not close. In addition, Borrower must provide a promissory note to Lender at the time ofrate lock in the amount of 5% of the permanent loan amount. This note will be secured by a second deed of trust against the Property. The note will be returned to Borrower upon the funding of the permanent loan and the deed of trust will then be released.
Construction Loan: Term Loan:
1.00% 1.00%
The Credit Facilities shall be secured by a first priority fee mortgage on the land associated with the Project and all improvements to be constructed thereon. First priority assignment ofleases, rents and income from the Project. First priority perfected assignment of the construction contract, subcontracts, architectural agreements, plans and specifications, permits and all other construction-related documents. First priority perfected security interest in all other assets of the Borrower related to the Project.
The Borrower, Guarantor and other persons or entities specified by Lender shal1 indemnify and hold the Lender harmless from all liability and costs relating to the environmental condition of the Project and the presence thereon of hazardous materials.
Lender must receive an appraisal report ("Appraisal Report") satisfactory to it in all respects within 90 days prior to the Construction Loan closing date. The Appraisal Report will be ordered by Lender from an appraisal firm selected by Lender which has either the 11M.A.I." designation or is State Certified. The maximum loan-to-value based upon achievable restricted rents is 90%, and the debt service coverage ratio sha11 be consistent with Lender's policies.
2
Subordinated Debt
Conversion Requirements
Representation Warranties, and Documentation
Closing
Merritt Street Housing, LP Commitment Letter
October 15, 2013
In addition to the construction and term loan, subordinated debt will be allowed subject to advance written consent of the Lender. All secondary financing shall be subordinate in all respects to the Lender's loans.
Before converting to the Tenn Loan, the Project shall achieve and maintain at a minimum 90% physical occupancy and an annualized 1.15 to 1 debt service coverage on the first mortgage debt and a combined 1.10 to 1 debt service coverage for all debt for a period of 90 consecutive days. Lender may, if necessary, reduce the amount of the Tenn Loan to that level which produces the required debt service coverage in the event stabilized net operating income is less than projected. The costs of updated third party reports, including an updated appraisal, shall be borne by the Borrower.
Standard representations and warranties, terms and conditions, and loan documents as are typical in this type of financing as may be required by Lender. Borrower will make usual representations and warranties as of the Construction Loan closing and the date of conversion to the Tenn Loan and in connection with each advance including, but not limited to, corporate existence, compliance with laws, enforceability, true title to properties, environmental protection, no material litigation, BRISA compliance, insurance, absence of default and absence of material adverse change, and availability oflow income housing tax credits.
Lender's obligation to close the Credit Facilities is subject to the Lender's receipt of all necessary fees and closing costs and review of the following reports and information, all of which are to be in form and substance satisfactory to Lender and which shall be provided no later than ninety (90) days from the date the tax credits are reserved or allocated: plans and specifications and construction contract (providing for payment and performance bonds as may be required by Lender) approved by Lender•s inspecting architect; final budget demonstrating adequate funds to develop the Project from sources acceptable to Lender; Phase I environmental report; title insurance; survey; zoning; pennits; opinions of counsel; evidence of reservation or allocation of tax credits; market study demonstrating feasibility satisfactory to Lender; financial statements of, and other information relating to the business activities of, sponsor, developer, guarantors and any principal with a material financial ownership interest in the Project or the foregoing parties, (collectively the "Development Parties,.), which is satisfactory to Lender; satisfactory progress and performance of other projects developed by the Development Parties and absence of prior default by any of the Development Parties with respect to any credit or equity facility provided by Lender; and such other information which Lender may require or which are customary in similar transactions.
3
Loan Call Protection
Assignment
Expiration
Merritt Street Housing, LP Commitment Letter
October 15, 2013
The executed loan documents will contain prepayment lockout, defeasance, yield maintenance and/or prepayment penalties.
Borrower may not assign this commitment or any interest therein without the consent of the Lender.
This firm commitment shall expire automatically the earlier of June 30, 2014 or when the Borrower is informed that it did not receive an allocation of tax credits, unless extended in writing by Lender.
Lender's obligation to provide the requested financing is expressly conditioned on the fact that no information submitted to Lender in connection with the Credit Facilities shall prove to be false or misleading in any material respect, and that no bankruptcy, insolvency, receivership, or any other debtor's relief proceedings shall be commenced by or against the Borrower.
Thank you for the opportunity to be of service to you. Should you have any questions, please do not hesitate to contact me.
SincereJy,
John N. Nunnery
Vice President
PNC Bank, N.A.
Agreed to and accepted:
Merritt Street Housing, LP
By: Merritt Street Housing GP, LLC
Its: General Partner
By:~~~~~~~~~~~~~-Robert M. Picerne Managing Member
4
~PNC REAL ESTATE
October 15, 2013
Via Email
Mr. Jorge Aguirre Merritt Street Housing, LP CIO Picerne Affordable Development, LLC 247 N. Westmonte Drive Altamonte Springs, FL 32714
Re: Merritt Street Housing, LP (the "Partnership"), beneficiary of equity proceeds Merritt Street Housing (the "Property")
Dear Mr. Aguirre:
Thank you for the opportunity to present this letter of intent to make an equity investment in your Partnership, subject to preliminary and final investor approval. This Jetter of intent, which is being provided on a "Best Efforts" basis, outlines certain terms and conditions that would be the basis of a partnership agreement (the "Partnership Agreement"), to be entered into among the general partner(s) listed below, an equity fund sponsored by PNC Bank, National Association ("PNC"), as the limited partner (the "Limited Partner'') and a corporation affiliated with PNC as the special limited partner (the Special Limited Partner").
Based on the information you provided to us, we have prepared this letter of intent under the following terms and assumptions:
1. PARTNERSHIP TAX CREDITS
Anticipated Annual Eligible Housing Credit Amount: Anticipated dollar amount of housing credit allocation to be purchased:
2. CAPITAL CONTRIBUTIONS TO THE GENERAL PARTNER
$1,510,000.00 $1,509 ,849 .00
A. The Investment Limited Partner and will purchase 99.99% of the forecasted tax credits at a rate of $.94 per allocated tax credit dollar credit (the ''Investment Limited Partner's Capital Contribution''), assuming the foregoing material assumptions are accurate and subject to the te1ms set forth in this letter and the Pa1tnership Agreement to be entered into prior to payment of any installment below. The total Capital Contribution will be rounded down to the nearest dollar and is expected to be $14,192,580 payable in installments. Each installment is due within five (5) business days of the Investment Limited Partner's receipt and approval of documentation evidencing the satisfaction of the installment's and all previous installments' conditions as follows:
1) $2,838,516.00 or 20% (the "First Installment") paid prior to or simultaneously with the closing of construction financing;
2) $8,231,696.40
3) $3,122,367.60
Merritt Street Housing, LP Letter of Intent
October 15, 2013 Page 2 of?
or 58% ("the Second Installment) upon construction completion;
or 22% ("the Third Installment") upon 95% physical occupancy, 100% initial tax credit occupancy, cost certification, pennanent loan commencement or conversion, or property stabilization;
Funds from installment one will be paid prior to construction completion for a total of $2,838,516.00.
B. The Capital Contribution shall be applied by the Partnership first to direct development costs, then to the payment of the development fee (the "Development Fee"). To the extent the Capital Contribution or net cash flow is not sufficient to pay the full Development Fee within ten years of the construction completion date, the General Partner shall be obligated to contribute capital to the Partnership to enable it to pay the remaining balance.
3. DISTRIBUTION OF NET CASH FLOW
A. Net cash flow, generated by the Property after payment of operating expenses, debt service and replacement reserve deposits, shall be distributed within 45 days of the end of the fiscal year, prior to the first full year of operations, 100% to the General Partner, and beginning in the first full year of operations, as folJows:
i) To the Investment Limited Partner $75 per unit as a cumulative annual investor services fee, increasing 3% annually;
ii) To the Investment Limited Partner as reimbursement for any debts or liabilities owed to the Investment Limited Partner;
iii) To the developer as payment of the Development Fee until payment in full of the Development Fee;
iv) To the General Partner $150 per unit, as a cumulative annual partnership management fee, increasing 3% annually;
v) To the Investment Limited Partner, to the extent that any Partnership taxable income is allocated to the Investment Limited Partner in any year, cash flow equal to 40% of the taxable income;
vi) To the General Partner as reimbursement for operating deficit loans made to the Partnership and owed to the General Partner;
vii) Finally, any remaining net cash fl.ow shall be distributed 80% to the General Partner and 20% to the Investment Limited Partner.
4. DISTRIBUTION OF NET CASH PROCEEDS UPON SALE OR REFINANCING
A. The net cash proceeds upon sale or refinancing shall be distributed in the following order:
i) To the payment of all debts and liabilities of the Partnership, excluding those owed to Partners, and to the establishment of any required reserves;
ii) To the payment of any debts and liabilities owed to the Investment Limited Partner;
Merritt Street Housing, LP Letter oflntent
October 15, 2013 Page 3 of7
iii) To the payment of any fees, debts, and liabilities owed to the General Partner and any unpaid partnership management fees for such year;
iv) The balance, 80% to the General Partner, and 20% to the Investment Limited Partner.
B. For a period of one year after the expiration of the initial compliance period, the General Partner may commence marketing the Property or may have the option to purchase the Investment Limited Partner's interest for a purchase price equal the fair market value of the Investment Limited Partner's interest. Fair market value shall be determined in accordance with the Partnership Agreement.
At any time after the year following the initial compliance period, PNC and the General Partner may commence marketing the Property. If PNC receives a bona fide offer to purchase the Property, PNC will forward a copy of the offer to the General Partner. If the General Partner chooses to refuse the offer, the General Partner will purchase the Investment Limited Partner's interest for a purchase price equal to the net proceeds pursuant to Section 5 if the offer had been accepted.
5. DISTRIBUTION OF BENEFITS
Profits, losses and tax credits will be allocated 99.99% to the Investment Limited Partner based on the percentage of limited partner interest to be acquired. In the first year of operations when the net cash flow is allocated 100% to the General Partner, any taxable income will be allocated to the General Partner in the same proportion as the net cash flow distribution.
6. GENERAL PARTNER OBLIGATIONS
A. Construction Completion Obligations The General Partner and the Developer shall guarantee lien-free construction completion of all improvements substantially in accordance with the approved plans and specifications. The General Partner and the Developer shall fund any development cost overruns through permanent loan(s) commencement/conversion and such overruns will not be reimbursed by the Partnership.
The General Partner shall provide copies of each draw request, change orders and all supporting documentation to the Investment Limited Partner simultaneously with submission to the construction lender. The Investment Limited Partner shall have the right to approve change orders in excess of $25 ,000. If the general contractor is not an affiliate of the General Partner, the construction contract shall be a fixed price contract and the general contractor shall be bonded in a manner satisfactory to the Investment Limited Partner.
B. Operating Deficit Guaranty and Operating Reserye Account The General Partner shall guarantee the funding of any operating deficits for operating or fixed costs for 60 months following the later of the break-even operations or pennanent mortgage loan commencement or conversion in a maximum amount to subject to the Investment Limited Partner's due diligence review. The partnership may also establish an operating reserve if the projections change.
C. Replacement Reserve Account The Partnership shall deposit monthly into a replacement reserve account no less than $250 per unit occupied at conversion (the "Replacement Reserve Account"). The Replacement Reserve Account shall be used to fund the replacement of major capital improvements, and disbursements
Merritt Street Housing, LP Letter of Intent
October I 5, 2013 Page4of7
shall require annual notification of anticipated expenditures and prior written approval of unanticipated expenditures.
D. Tax Credit Adjustments
i) If the annual actual tax credits allocated on the Carryover Allocation or Fonn(s) 8609 is less than the forecasted tax credits stated in Section 1, then the Capital Contribution shall be reduced in an amount equal to the total tax credit shortfall to the Investment Limited Partner multiplied by the price paid for the tax credits.
ii) If the annual actual tax credits allocated on Form(s) 8609 is greater than the forecasted tax credits stated in Section 1 (the .. Additional Credit''), then the Capital Contribution shall be increased in an amount equal to the Additional Tax Credit multiplied by the price paid for the tax credits, and paid pro rata over the remaining Installments. This adjustment combined with all other upward adjustments shall be limited to 10% of the Capital Contribution.
iii) For each additional $1.00 of tax credit delivered in the first years beyond the amount projected in this letter, the ILP shall pay an additional equity amount per tax credit dollar to be determined by Investment Limited Partner during due diligence. The additional capital shall be paid pro rata over the remaining Installments.
iv) If the amount of actual tax credit in any year after construction completion is less than the amount of forecasted tax credit in Section 2 (except for reasons stated in item 6(D}(i) above}, the Capital Contribution shall be reduced by an amount equal to the tax credit shortfall amount multiplied by the price paid for the tax credits, plus the amount of any recapture, interest or penalty (a "Reduction Amount").
v) If any Reduction Amount cannot be paid from the Capital Contribution, the General Partner shall pay the Reduction Amount. Reduction Amounts not paid upon demand shall accrue interest at the prime rate as published in the Wall Street Journal plus 2%.
E. Net Worth and Guarantee Requirements All obligations of the General Partner shall be guaranteed by person(s) or entities ("Guarantor(s)"} acceptable to the Investment Limited Partner and with sufficient net worth and liquidity.
7. CONDITIONS
A. Pro_perty The Property will be a 102-unit new construction development located in Altamonte Springs, Seminole, Florida.
B. Tax Credit Allocation The Partnership may elect to defer the use of tax credits for any individual building which is not 100% tax credit qualified by December 31 of the year in which it is placed in service, at the Investment Limited Partner's discretion. It is assumed that IRS form 8609 will be issued subsequent to the anticipated placed-in-service deadline.
C. Tax Cre<lit Occupancy
Merritt Street Housing, LP Letter of Intent
October IS, 2013 Page5 of?
The Partnership must comply with the 40/60 minimum set-aside test (a minimum of 40% of the units must be rented to tenants with incomes less than 60% of area median, adjusted for family size).
D. Construction and Permanent Financing The General Partner shall provide to PNC for its review and approval, copies of the loan commitments and loan documents for all financing sources, which are assumed to be from qualified commercial lenders and qualify for the 9% tax credit applicable percentage.
E. Property Management Agent
i) The General Partner shall provide or cause the Property management agent to provide management reports to the Investment Limited Partner in a timely manner concerning operations, occupancy and other information essential to the management of the Property.
ii) Upon the occurrence of certain events, including any material violations, negligence or misconduct or inadequate reporting, the Special Limited Partner will have the option to replace the Property management agent. All Property management agreements will include a termination clause allowing either the General Partner or the Property management agent to terminate the agreement by giving a 30-day advance written notice to the other party.
F. Repurchase Obligations The Investment Limited Partner shall not be required to advance any unpaid Installments and the General Partner may be required to repurchase the Investment Limited Partner's interest for the invested amount Conditions for repurchase shall include: construction completion, break-even operations or permanent loan closing(s)/conversion(s) are not achieved or other tax credit compliance conditions are not met in a reasonable time period.
G. Insurance Obligations The Partnership will provide the following insurance policies: i) an extended ALTA owner's title insurance policy in an amount not less than the permanent mortgage(s), the General Partner's and Investment Limited Partner's capital contributions, with all standard exceptions deleted or approved and with Fairways, non-imputation and other requested endorsements; ii) commercial general liability insurance in the minimum amount of $5 1000,000 naming the Investment Limited Partner as named insured party of which not more than $2,000,000 is through an umbrella policy; (iii) builder's risk insurance through construction completion, and all risk or fire and extended coverage and, if necessary, earthquake, hurricane and flood insurance, all policies in a minimum amount equal to full replacement value; (iv) workers' compensation as required under state law; {v) business interruption insurance coverage equal to one full year's gross rental income or as acceptable to the Investment Limited Partner; and (vi) any other insurance as may be necessary or customary.
H. Accountant's Obligations The General Partner shall provide or cause the Partnership's accountant to provide the following annual reports: i) federal and state tax returns for the previous year (including all supporting documentation necessary to verify the calculation of the tax credit) by February 28th and ii) annual audited Pai.tnership financial statements (including all supporting documentation) by March 1 •1
• Any delays beyond the designated due date may result in a $100 per day penalty to the
Merritt Street Housing, LP Letter ofintent
October 15, 2013 Page 6 of7
Partnership. The Partnership Accountant shall review and approve the basis and benefits calculations prior to the payment of the First Installment.
I. General Partner Removal The Partnership Agreement shall contain provisions for the removal of the General Partner with cause.
8. DUE DILIGENCE PERIOD
The General Partner grants the Investment Limited Partner the exclusive right to acquire the Partnership interest commencing on the date of the initial execution of this letter of intent and terminating 60 days after receipt of the documents necessary to complete the due diligence review.
Our agreement to make the investment described in this letter of intent is subject to the accuracy of the information you have provided to us and our mutual agreement on the tenns of the closing documents and review of customary due diligence which shall include those items specifically referenced in the PNC commitment for construction and tenn financing sent under separate cover.
This letter of intent does not expire before June 30, 2014.
This letter of intent is not a commitment and is subject to PNC's underwriting, due diligence review, and market conditions at the time a letter of intent is issued following the tax credit award. During the due diligence period, PNC will conduct a due diligence review and negotiate with the General Partner, in good faith, any open tenns of this letter of intent. The due diligence period will commence upon receipt by PNC of all Property and Partnership documents identified in the syndication binder. The due diligence review will include, without limitation, the verification of factual representations made by the General Partner, a review of the Property and Partnership documents, a site visit and an evaluation of the following: the experience and expertise of the General Partner, general contractor, architect and Property management agent; Property area market; an appraisal of the Property; the construction schedule' the total development budget; the residual potential of the Property and capital account analysis; Phase I environmental assessment and all subsequent reports and other relevant factors. PNC may also commission consultants to perform market analysis, construction, insurance and environmental reviews. The General Partner and PNC acknowledge that no legally enforceable relationship shall exist between General Partner and PNC unless and until the Acquisition Review Committee of PNC shall have approved the proposed transaction, and the parties shall have executed the Partnership Agreement and the other transaction and financing documents contemplated herein.
Should you have any questions, please do not hesitate to call (706) 653-9566. We look forward to working with you on this and future transactions.
Sincerely,
PNC BANK, N.A.
~ By:~~~~~~~~~~
John N. Nunnery
Vice President
Agreed and Accepted:
Merritt Street Housing, LP Letter of Intent
October 15, 2013 Page 7 of7
MERRITT STREET HOUSING, LP BY: MERRITT STREET HOUSING GP, LLC Its: General Partner
By:~~~~~~~~~~~~~ Robert M. Piceme, Managing Member