August 11, 1994
Securities and Exchange Commission
450 Fifth Street, N.W.
Judiciary Plaza
Washington, D.C. 20549
Re: Carlyle Real Estate Limited Partnership - XIII
Commission File No. 0-12791
Form 8-K
Gentlemen:
Transmitted, for the above-captioned registrant, is the electronically
filed executed copy of registrant's current report on Form 8-K dated August
11, 1994.
Thank you.
Very truly yours,
CARLYLE REAL ESTATE LIMITED PARTNERSHIP - XIII
By: JMB Realty Corporation
Corporate General Partner
By: C. SCOTT NELSON
________________________________
C. Scott Nelson, Vice President
Accounting Officer
CSN:jo
Enclosures
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): June 30, 1994
CARLYLE REAL ESTATE LIMITED PARTNERSHIP - XIII
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(Exact name of registrant as specified in its charter)
Illinois 0-12791 36-3102608
- - ------------------- -------------- --------------------
(State or other) (Commission (IRS Employer
Jurisdiction of File Number) Identification No.)
Organization
900 N. Michigan Avenue, Chicago, Illinois 60611-1575
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(Address of principal executive office)
Registrant's telephone number, including area code: (312) 915-1987
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EASTRIDGE APARTMENTS
TUCSON, ARIZONA
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ITEM 5. OTHER EVENTS. On June 30, 1994, Eastridge Associates Limited
Partnership ("Eastridge") sold the land, related improvements, and personal
property of the Eastridge apartments located in Tucson, Arizona. Eastridge
is a Delaware Limited Partnership that consists of Carlyle Real Estate
Limited Partnership - XIII (the "Partnership") and an affiliate of the
Partnership (in which the Partnership has a 99.9% interest). The
Purchaser, CPT Arizona, a Delaware Corporation, is not affiliated with the
Partnership or its General Partners and the sale price was determined by
arm's-length negotiations. The apartment complex consists of 456 units and
was approximately 95% leased at the time of sale.
The sale price of the land, related improvements and personal property
was $12,000,000 (before closing costs and prorations) which was paid in
cash at closing.
The Partnership agreement provides that generally the Limited Partners
shall receive 99% of the proceeds (net after expenses and retained working
capital) from the sale or refinancing of real property by the Partnership
and the General Partners shall receive 1% of such net proceeds until the
Limited Partners (i) first have received cash distributions of net sale or
refinancing proceeds in an amount equal to the Limited Partners' aggregate
initial capital investment in the Partnership, and (ii) then have received
cumulative cash distributions of net sale or refinancing proceeds pursuant
to this clause (ii) which, when combined with previous distributions of net
cash receipts from operations, equals a 6% annual return on the Limited
Partners' current capital investment for each year (their initial capital
investment as reduced by net sale or refinancing proceeds previously
distributed). The Limited Partners have not yet received cash
distributions of net sale or refinancing proceeds in an amount equal to
their initial capital investment in the Partnership.
ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS.
(a) Financial Statements. Not applicable.
(b) Proforma financial information. Not applicable.
(c) Exhibits.
1. Purchase and Sale Agreement between Eastridge Associates
Limited Partnership and CPT Arizona, Inc. dated May 9, 1994, and Exhibits
thereto.<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of
1934, the Registrant has duly caused this report to be signed on its behalf
by the undersigned thereunto duly authorized.
CARLYLE REAL ESTATE LIMITED PARTNERSHIP - XIII
By: JMB Realty Corporation
Corporate General Partner
By: C. SCOTT NELSON
---------------------------------
--
C. Scott Nelson, Vice President
Accounting Officer
Dated: August 11, 1994
EXECUTION COPY
EASTRIDGE
PURCHASE AND SALE AGREEMENT
THIS PURCHASE AND SALE AGREEMENT is made as of the Effective Date (as
hereinafter defined) ("Agreement") by and between EASTRIDGE ASSOCIATES LIMITED
PARTNERSHIP, a Delaware limited partnership ("Seller") and CPT ARIZONA, INC.,
a Delaware corporation ("Purchaser").
W I T N E S S E T H:
WHEREAS, Purchaser desires to purchase and Seller desires to sell the
Property (as hereinafter defined) on the terms and subject to the conditions
hereinafter set forth.
NOW, THEREFORE, in consideration of the mutual promises herein contained
and the respective undertakings of the parties hereinafter set forth, the
Seller and Purchaser hereby agree as follows:
1. Purchase and Sale. Subject to the terms and conditions of this
Agreement, Seller agrees to sell to Purchaser and Purchaser agrees to purchase
from Seller the following described property (collectively, the "Property"):
(a) Real Property. That certain real property located in the
City of Tucson, County of Pima, State of Arizona, legally described on Exhibit
"A" attached hereto, commonly known as "Eastridge Apartments" together with
all of Seller's right, title and interest in and to all water, air and mineral
rights (including any grandfathered groundwater or other groundwater or
surface water rights, but only to the extent transferable). The aforesaid
real property, together with all tenements, hereditaments, easements, rights-
of-way, appurtenances, air-rights, water rights, oils, minerals, gas and
hydrocarbons belonging or in any way pertaining to the same are collectively
the "Real Property";
(b) Improvements. All buildings, structures, parking areas,
elevators, if any, fixtures and other improvements located on the Real
Property (collectively, the "Improvements");
(c) Personal Property. All equipment, mechanical systems,
leasehold improvements, appliances, tools, machinery, supplies, building
materials, office equipment, and other personal property of every kind and
character owned by Seller (and not by any tenants or management agent) and
attached to, or appurtenant to, located in, or used in connection with the
operation of, the Improvements or Real Property including, but not limited to,
the items described on Exhibit "B" attached hereto (said items being
hereinafter collectively referred to as the "Personal Property"); and
(d) Intangible Property. All intangible property (collectively,
the "Intangible Property") owned by Seller in connection with the Real
Property, the Improvements or the Personal Property, including, but not
limited to, (i) all leases and tenancy agreements identified on the "Rent
Roll" (as hereinafter defined), guarantees thereof, security deposits
thereunder, (said items being hereinafter collectively referred to as the
"Tenant Leases"), (ii) all service contracts or similar instruments identified
on the Schedule of Contracts attached hereto as Exhibit "C" (said items being
hereinafter referred to as the "Contracts") which are Assumed Contracts (as
hereinafter defined), (iii) all of Seller's right, title and interest, if any,
to use the name "Eastridge Apartments" in connection with the Property (the
"Name"), (iv) all transferable licenses and warranties owned by Seller
covering the Property or any part thereof identified on the List of Licenses
and Warranties attached hereto as Exhibit "D" (collectively, the
"Warranties"), (v) all transferable permits owned by Seller covering the
Property or any part thereof identified on the list of permits attached hereto
as Exhibit "E" (collectively, "Permits"), (vi) all of Seller's right, title
and interest in and to all dwelling unit equivalents with respect to potable
and wastewater capacities (but only to the extent transferable), and (vii) all
transferable utility contracts and utility services, telephone exchange
numbers, trademarks, advertising materials, plans and specifications,
governmental approvals, licenses and development rights related to the
Property and all site plans, surveys, as-built plans and specifications, soil
tests and all other like information and documentation in Seller's possession
or control related to the Property (collectively, "Miscellaneous Property").
2. Purchase Price. Subject to the prorations and credits hereinafter
provided, the Purchase Price ("Purchase Price") for the Property shall be
Twelve Million Seventy Five Thousand and 00/100 Dollars ($12,075,000.00),
which shall be payable and allocated as follows:
(a) Earnest Money. Within two (2) days after the Effective
Date, Purchaser shall deposit, as earnest money, a corporate check in the
amount of Two Hundred Thousand and 00/100 Dollars ($200,000.00) (said monies,
together with any and all interest accrued thereon, are collectively the
"Earnest Money") into an escrow pursuant to an escrow agreement in the form of
Exhibit "F" attached hereto ("Escrow"), to be entered into by Seller and
Purchaser with First American Title Insurance Company, ("Title Insurer"), as
escrowee. The Earnest Money shall be transferred to the "Closing Escrow" (as
hereinafter defined) upon establishment of the Closing Escrow. The Earnest
Money shall be invested only upon the direction of Seller and Purchaser, and,
except as specifically set forth herein to the contrary, all interest earned
thereon shall accrue to the benefit of Purchaser; and
(b) Cash Balance. On or before the "Closing Date" (as
hereinafter defined), Purchaser shall deposit with Title Insurer, as escrowee,
the balance of the Purchase Price in cash, certified or cashier's check or by
federal wire transfer, together with such additional funds for Purchaser's
share of closing costs and prorations as may be required pursuant to this
Agreement.
3. Closing. The closing of the transaction contemplated by
this Agreement shall be held at the Tucson, Arizona office of Title Insurer on
June 7, 1994 or at an earlier or later date by mutual agreement between the
parties (herein referred to as the "Closing" or "Closing Date"). The
transaction contemplated by this Agreement shall be closed by means of a Deed
and Money Escrow (the "Closing Escrow") to be opened with Title Insurer, as
escrowee, on the Closing Date, in substantially the form of Exhibit "G"
attached hereto and made a part hereof; provided, however, in the event of a
conflict between the terms of this Agreement and the Closing Escrow, the terms
of this Agreement shall control, unless the Closing Escrow specifically
provides otherwise.
4. Deliveries at Closing.
(a) At Closing, Seller shall deliver to Title Insurer, as
escrowee, or Purchaser directly, as Seller may elect, the following documents:
(i) Special warranty deed from Seller conveying to
Purchaser the Real Property and Improvements, subject only to the Permitted
Exceptions (as hereinafter defined) (the "Deed");
(ii) A bill of sale with respect to the Personal Property,
subject only to the Permitted Exceptions;
(iii) A Certificate of Non-Foreign Status of Seller as
required by Section 1445 of the Internal Revenue Code;
(iv) (A) An assignment and assumption of the Tenant Leases,
subject only to the Permitted Exceptions and (B) an assignment and assumption
of the Contracts, which Contracts Purchaser elects, by written notice to
Seller given no later than twenty (20) days prior to the Closing Date to
assume from and after the Closing Date ("Assumed Contracts"), the balance of
which Contracts shall be terminated by Seller on or prior to the Closing Date
("Assignment and Assumption of Leases and Assumed Contracts"). To the extent
Purchaser fails to so notify Seller within the above referenced time period of
its election to assume or not to assume the Contracts, Purchaser shall be
deemed to have elected to assume all of the Contracts at Closing;
(v) A quit-claim assignment of the Warranties, Name, Permits and
Miscellaneous Property;
(vi) A certificate of Seller certifying to Purchaser (a) all
keys, (b) executed originals of all Tenant Leases, (c) Assumed Contracts, (d)
Permits, (e) Warranties, (f) Miscellaneous Property, if any, and (g)
originals, as applicable, of all of the other Property Information (as
hereinafter defined), in Seller's possession and control were delivered to
Purchaser in the management office of the Property as of the Closing Date.
(vii) Any reasonable and customary documentation required by Title
Insurer in order for Title Insurer to issue
the Title Policy (as hereinafter defined);
(viii) Letters executed by Seller addressed to each tenant in
the form of Exhibit "H" attached hereto and made a part hereof;
(ix) UCC, tax lien and judgment searches (state and local)
against Seller showing no liens against the Property except for the lien of
Seller's existing lender, which shall be deleted from the Title Policy as of
Closing;
(x) Such proof of Seller's authority and authorization to enter
into this transaction as may be required by Title Insurer;
(xi) An "Updated Rent Roll", dated not earlier than two (2) days
prior to Closing;
(xii) Subject to the terms and conditions of subparagraph
10(c)(iii) below, a Re-Affirmation of Seller's representations and warranties
contained in subparagraph 10(a) below;
(xiii) Such additional documents or instruments, which in the
reasonable opinion of Purchaser and/or Title Insurer, are necessary for the
proper consummation of the transaction contemplated by this Agreement,
provided none of said additional documents or instruments impose any cost or
obligation upon Seller not otherwise specifically imposed upon Seller pursuant
to the terms of this Agreement; and
(xiv) An Affidavit of Property Value, for the purpose of
establishing the value of the property for the taxing authorities, but only to
the extent required by the law of the State of Arizona.
(b) At Closing, Purchaser shall deliver to Title Insurer, as escrowee,
or Seller directly, as Seller may elect, the following:
(i) The balance of the Purchase Price in accordance with
paragraph 2(b) above, plus Purchaser's share of closing costs and prorations;
(ii) An original executed counterpart of the Assignment and
Assumption of Leases and Assumed Contracts;
(iii) Such proof of Purchaser's authority and authorization to
enter into this transaction as may be required by Title Insurer;
(iv) Any reasonable and customary documentation required by Title
Insurer in order for Title Insurer to issue the Title Policy;
(v) Such additional documents or instruments, which in the
reasonable opinion of Seller and/or Title insurer, are necessary for the
proper consummation of the transaction contemplated by this Agreement,
provided none of said additional documents or instruments impose any cost or
obligation upon Purchaser not otherwise specifically imposed upon Purchaser
pursuant to the terms of this Agreement;
(vi) The "Assumption Agreement" (as defined below) if applicable;
and
(vii) An Affidavit of Property Value.
(c) At Closing, Purchaser and Seller shall jointly deliver the
following documents to Title Insurer, as escrowee:
(i) Joint direction to Title Insurer to transfer the Earnest
Money into the Closing Escrow; and
(ii) Three (3) originals of a closing statement which reflect the
applicable proration items as set forth in Paragraph 6 of this Agreement.
5. Allocation of Closing Costs and Expenses. Seller shall bear the
cost of the title insurance premium (at a rate not in excess of standard issue
rates) attributable to Standard ALTA Coverage respecting the Title Policy, the
cost to record any instruments necessary to clear Seller's title, one-half the
cost of the Escrow and one-half the cost of the Closing Escrow. Purchaser
shall bear the cost of the title insurance premium attributable to the Title
Policy in excess of the Standard ALTA Coverage, as well as any costs for
so-called "extended coverage" or endorsements, to the Title Policy, to the
extent the foregoing is requested by Purchaser, any recording fees with
respect to the Deed, the tax certificates, all costs incurred in connection
with obtaining Purchaser's financing for this transaction, if any, one-half
the cost of the Escrow and one-half to the cost of the Closing Escrow. The
cost of any transfer taxes applicable to this transaction shall be paid for by
the party made responsible for the payment of the same by the applicable
ordinance with respect thereto. All other costs and expenses in connection
with the transaction contemplated by this Agreement shall be borne by
Purchaser and Seller in the manner in which such costs and expenses are
customarily allocated between the parties at closing of real property similar
to the Property in the Pima County, Arizona area. Except as provided in
subparagraph 18(p) below, each party hereto shall pay its own attorneys' fees
incurred in the preparation and negotiation of this Agreement and the closing
of the transaction contemplated hereby.
6. Prorations. The following prorations, except as specifically
provided herein to the contrary, shall be made as of the Closing Date and
shall be applied to reduce or increase the balance of the Purchase Price as
applicable:
(a) Rentals. Subject to the terms and conditions of
subparagraph 6(c) below, prorations of rents, revenues, and other income, if
any (collectively "Rentals"), collected by Seller from the Property during the
month of Closing shall be prorated as of 11:59 p.m. on the day prior to the
Closing Date ("Proration Date"). It is agreed between the parties, the
Closing Date shall be an income and expense day for Purchaser; provided,
however, to the extent the Purchase Price has not been deposited into the
Closing Escrow as of 12:00 p.m. (C.S.T.) on the Closing Date, then, in such
case, the Closing Date shall be an income and expense day for Seller and the
prorations shall be determined as of 11:59 p.m. on the day of Closing. Seller
and Purchaser hereby acknowledge and agree, except to the extent referenced in
the immediately prior sentence hereof, Seller shall be entitled to all Rentals
accruing prior to the Closing Date and Purchaser shall be entitled to all
Rentals accruing on and after the Closing Date.
(b) Real Estate Taxes and Assessments. Ad valorem real
property taxes and assessments for the year in which Closing occurs shall be
prorated between Purchaser and Seller as of the Proration Date. If the actual
ad valorem taxes for the year in which Closing occurs are not ascertainable by
the parties as of the Proration Date, such proration shall be based upon the
most recent information published by the Pima County Assessor's Office
relating to the assessed valuation and tax rate for the Property. The tax
proration referenced in the immediately prior sentence shall be readjusted
between the parties within thirty (30) days following the date when the exact
amount of said ad valorem taxes are known and such adjustment shall expressly
survive Closing.
(c) Delinquent Rentals. For purposes of this Agreement, except
as specifically set forth below, any Rentals shall be deemed delinquent when
payment thereof is due prior to the month in which the Closing Date occurs,
but have not been made as of the Proration Date ("Delinquent Rentals").
Delinquent Rentals shall not be prorated until collected pursuant to this
subparagraph 6(c). To the extent either Seller or Purchaser collects any
Delinquent Rentals, from any tenant who is a tenant of the Property both prior
to and subsequent to Closing, within twelve (12) months after the Closing
Date, such Delinquent Rentals shall first be applied to any accrued but unpaid
rental obligations of such tenants for the period subsequent to the Closing
Date and the balance, if any, shall be paid to Seller to the extent of (and
credited against) any Delinquent Rentals relating to the period prior to the
Closing Date (collectively "Seller's Rentals"). To the extent any Rentals due
for the calendar month in which Closing occurs are received by Seller or
Purchaser after the Closing Date but prior to the first (1st) day of the
calendar month following the calendar month in which Closing occurs, the
parties hereby agree the party who received said Rentals shall prorate the
same and remit to the other party, within three (3) business days thereafter,
said party's prorated share. Seller shall have the right to pursue its legal
rights against any tenants owing Delinquent Rentals relating to the period
prior to the Closing Date; provided, however, Seller agrees to take no action
which would (i) have the effect of terminating any then existing Tenant Lease
or (ii) disturb any of said tenants right to quiet possession of its premises,
and Purchaser agrees to reasonably cooperate with Seller, at no cost to
Purchaser, in Seller's attempt to collect any of Seller's Rentals. Seller
hereby agrees to indemnify, defend and hold Purchaser harmless from and
against any and all loss, cost, liability, damage or expense (including
reasonable attorneys' fees and court costs), incurred by Purchaser as a result
of Seller pursuing any of Seller's Rentals in accordance with this
subparagraph 6(c).
(d) Tenant Security Deposits. Purchaser shall be entitled to a
credit against, Purchase Price in an amount equal to all tenant security
deposits being held by Seller under all Tenant Leases transferred to Purchaser
as of the Proration Date as reflected on the Updated Rent Roll. Purchaser
hereby acknowledges the non-refundable cleaning fees collected from tenants by
Seller pursuant to the Tenant Leases prior to the Closing Date shall not be
credited to Purchaser at Closing but instead shall be retained by Seller.
(e) Property Expenses. Charges under all Assumed Contracts
shall be prorated on a per diem basis as of the Proration Date on the basis of
the billing period of the person levying such charges. Except as otherwise
may be set forth in this Agreement Seller shall be responsible for the payment
of all operating expenses for the Property incurred prior to the Closing Date
and Purchaser shall be responsible for the payment of all operating expenses
for the Property incurred from and after the Closing Date.
(f) Finality of Prorations. Unless otherwise provided herein,
all prorations hereunder shall be final.
7. Title Insurance.
(a) Title Commitment. Purchaser hereby acknowledges receipt
from Title Insurer of a current Owner's Title Policy Commitment ("Commitment")
for the issuance of a standard form ALTA State of Arizona Owner's Policy of
Title Insurance to Purchaser from Title Insurer, together with good and
legible copies of all documents constituting Schedule B and Schedule C
exceptions to title as reflected on the Commitment (collectively, "Title
Documents").
(b) Title Approval. Purchaser shall have a period of twenty
(20) days from receipt of the "Survey" (as hereinafter defined) ("Title Review
Period") in which to review the Commitment, the Survey and the Title Documents
and deliver to Seller, at Purchaser's election, in writing, such objections as
Purchaser may have to any matters contained in the Commitment, Title Documents
or Survey ("Purchaser's Objection Notice") (any of said objections listed on
Purchaser's Objection Notice are deemed the "Objectionable Exceptions").
Seller shall have the right, but not the obligation, prior to the expiration
of the Inspection Period to cure any Objectionable Exceptions (it being
acknowledged by Purchaser that Seller shall not be obligated to expend any
monies or execute any affidavits or certificates in order to cure any of said
Objectionable Exceptions). In the event Seller fails or elects not to cure
any of said Objectionable Exceptions prior to the expiration of the Inspection
Period, Purchaser shall have the right to either (a) terminate this Agreement
by delivering written notice to Seller on or prior to the expiration of the
Inspection Period, in which event, the Earnest Money shall be returned to
Purchaser and each party shall be released from further liability to the other
or (b) Purchaser may consummate the transaction contemplated by this Agreement
in accordance with the terms hereof, without a reduction in the Purchase
Price, in which event, subject to the following grammatical paragraph, all
exceptions to title listed on Schedule B of the Commitment (modified as
described in subparagraph (c) below) as of the expiration of the Inspection
Period and all matters contained in the Survey shall conclusively be deemed to
constitute "Permitted Exceptions" (as hereinafter defined). In the event
Purchaser fails to deliver to Seller Purchaser's Objection Notice on or prior
to the expiration of the Title Review Period, subject to the following
grammatical paragraph, (x) all Schedule B exceptions contained in the
Commitment (modified as described in subparagraph (c) below) and (y) all
matters contained on the Survey shall conclusively be deemed Permitted
Exceptions. The parties agree to amend this Agreement promptly after the
expiration of the Inspection Period to attach to this Agreement, as Exhibit
"I", the Permitted Exceptions determined pursuant to this subparagraph 7.(b).
If an exception to title or other title defect other than a
Permitted Exception is added to the Commitment subsequent to the expiration of
the Inspection Period, but prior to the Closing Date ("Unpermitted
Exceptions"), then, prior to the Closing Date, Seller shall be affirmatively
obligated to (i) cure any such Unpermitted Exception in the nature of a
mechanics' or materialmen's lien created as a result of a direct contract
entered into between Seller (or its agents) and any mechanic by causing Title
Insurer to delete same from the Title Policy and (ii) cure any such
Unpermitted Exception intentionally created by Seller or any affiliate
directly or indirectly controlled by Seller by causing Title Insurer to delete
same from the Title Policy (Seller's obligations under clauses (i) and (ii)
above are collectively "Seller's Unpermitted Exception Obligations"). In the
event any Unpermitted Exceptions encumber title to the Property, as of the
Closing Date, which are not covered by clauses (i) or (ii) above, then, at
Purchaser's option, by written notice to Seller, Purchaser may (A) terminate
this Agreement by written notice given to Seller, on or prior to the Closing
Date, in which event, the Earnest Money shall be returned to Purchaser and
each party shall be released from further liability to the other or (B)
Purchaser may consummate this transaction in accordance with the terms hereof,
without a reduction in the Purchase Price, in which event, any such
Unpermitted Exceptions shall be conclusively deemed to be Permitted
Exceptions. In the event Purchaser shall fail to so notify Seller, on or
prior to the Closing Date (as may be extended in accordance with the terms of
this Agreement), Purchaser shall be conclusively deemed to have elected to
purchase the Property pursuant to clause (B) immediately above.
(c) Title Policy. On the Closing Date, Seller shall cause Title
Insurer to issue to Purchaser its standard form ALTA State of Arizona Owner's
Policy of Title Insurance or irrevocable commitment to issue same ("Title
Policy") covering the Property in the amount of the Purchase Price, subject
only to (i) taxes for the current year and subsequent years, and subsequent
assessments for prior years due to changes in land usage or ownership, (ii)
any matters listed on Exhibit "I" attached hereto and incorporated herein in
accordance with subparagraph 7(a) above, (iii) rights of those tenants listed
on the Updated Rent Roll in possession of the Property, as tenants only, under
unrecorded leases, (iv) matters created by, through or under Purchaser,
(v) all matters approved or waived, in writing, by Purchaser, (vi) the
Standard ALTA State of Arizona exceptions which would be removed by an ALTA
extended coverage owner's policy, (vii) the standard printed exceptions, and
(viii) matters accepted or deemed to have been accepted by Purchaser pursuant
to the second grammatical paragraph of subparagraph 7(b) above, except:
(x) the exception for matters that would be disclosed by an
accurate survey shall be modified to reference the "Survey" (as such term is
defined in paragraph 8 below) and to include any matters and exceptions
disclosed by such Survey;
(y) there shall be no exception for yet to be filed mater-
ialmen's and mechanics' lien; and
(z) the rights of parties in possession shall be limited only to
those holding under the Tenant Leases as reflected by the Updated Rent Roll,
(collectively, the "Permitted Exceptions").
Seller hereby agrees the Title Policy shall not be subject to any of Seller's
financing documents which currently encumber the Property.
8. Plat of Survey. Not later than ten (10) days after the Effective
Date (time not being of the essence), Seller shall deliver or cause to be
delivered to Purchaser and Title Insurer, at Seller's sole cost and expense,
two (2) copies each of a survey of the Property dated subsequent to the date
hereof, prepared by a land surveyor ("Surveyor") licensed in the State of
Arizona ("Survey"). The Survey furnished to Purchaser shall show thereon a
legal description of the boundaries of the Real Property by metes and bounds
or other appropriate legally sufficient description and shall indicate, and
the Surveyor shall certify, for the benefit of Seller, Purchaser and Title
Insurer as to (i) the matters set forth in the "Certificate" attached hereto
as Exhibit "J" and incorporated herein by this reference or (ii) such other
matters which the Certificate may contain as reasonably agreed to by Purchaser
and the Surveyor. The Surveyor shall also note any limitation of ingress or
egress to or from an adjoining public roadway or street and any such
limitation shall be deemed an objection to the Survey. For purposes of the
property description to be included in the Deed to be delivered to Purchaser
pursuant to this Agreement, the field notes prepared by the surveyor shall
control over any conflicts or inconsistencies with Exhibit "A" hereto.
9. Purchaser's Contingencies.
(a) Information and Documentation. Seller hereby certifies to
Purchaser it has delivered to Purchaser all of the following documentation or
information pertaining to the Property (all of said documents or information
are collectively the "Property Information"):
(i) copies of all Contracts related to the Property;
(ii) copies of real estate tax bills for the past
three (3) years;
(iii) copies of all Warranties and Permits;
(iv) copies of annual income and expense statements
for the Property for past two (2) years ("Income Statements");
(v) as-built plans and specifications of the
Improvements, to the extent Seller is in
possession of the same;
(vi) a current (within three (3) days of the
Effective Date) rent roll covering all Tenant Leases at the Property ("Rent
Roll");
(vii) All existing soil reports, and all existing
engineering reports, including but not limited to, structural, plumbing,
electrical, environmental, mechanical and civil, to the extent Seller is in
possession of same;
(viii) Evidence of property insurance in an amount not
less than the Purchase Price;
(ix) Monthly general ledgers, bank statements and
bank reconciliations of the Property for calendar year 1993 and 1994 (year to
date) reflecting the income generated by the Property during said time period;
and
(x) all well registration certificates,
grandfathered groundwater rights and other documents relating to water rights
or claims to water, but only to the extent transferable and in Seller's
possession.
Seller hereby certifies to Purchaser (A) all files pertaining to Tenant
Leases, including originals of the Tenant Leases, shall be made available to
Purchaser during the entire term of this Agreement at the management office of
the Property and (B) Purchaser shall have the right to copy, at Purchaser's
expense, the Tenant Leases or any information or documentation contained
within the tenant files.
With respect to (x) the Rent Roll and the Income Statements
delivered to Purchaser as aforesaid, Purchaser acknowledges said Rent Roll and
Income Statements are being delivered to Purchaser for informational purposes
only and Seller is making no representations or warranties whatsoever with
respect to the information contained in said Rent Roll or Income Statements,
other than as specifically set forth in subparagraphs 10(a)(xv) and (xvi)
below respectively and (y) the Property Information, Purchaser agrees to keep
all Property Information confidential and return all of the Property
Information delivered to Purchaser to the extent that this Agreement is
terminated.
(b) Physical Inspection. During the term of this Agreement,
Seller agrees, subject to the rights of the existing tenants of the Property,
to permit Purchaser to enter and inspect the Property, during normal business
hours and upon at least one (1) business day prior notice and, at the election
of Seller, accompanied by a representative of Seller, to conduct such physical
and environmental inspections, independent appraisals, and other tests,
examinations and studies of the Property as Purchaser desires, including,
without limitation, two (2) unit-by-unit inspections of the Property, one (1)
during the Inspection Period and one (1) within ten (10) days prior to
Closing, which inspection subsequent to the expiration of the Inspection
Period shall not give rise to an ability of Purchaser to terminate this
Agreement pursuant to subparagraph 9(c) hereof, but may result in the
discovery of a default by Seller, entitling Purchaser to its rights under
subparagraph 14(a) below. Purchaser acknowledges and agrees as follows: (i)
Purchaser shall not make or cause to be made any borings in the Property
without Seller's prior consent; (ii) Purchaser, at its sole cost and expenses
shall promptly repair any injury or damage to the Property caused by the
foregoing; (iii) Purchaser shall pay all costs and expenses incurred in
connection with the foregoing; (iv) Purchaser shall indemnify, defend and hold
Seller harmless from and against any and all loss, cost, injury, damage or
expense, including, without limitation, reasonable attorneys' fees and court
costs and liability of any kind arising out of or in connection with
Purchaser's activities on the Property, directly or indirectly, including,
without limitation, the acts and omissions of Purchaser's agents, employees,
architects, engineers and other personnel (except to the extent caused by
Seller's negligence or willful misconduct); provided, however, such
indemnification shall not include any claims or liabilities for any diminution
in the value of the Property based on the results of such inspections. In the
event Purchaser elects to terminate this Agreement as herein provided or if
Purchaser defaults hereunder, Purchaser shall promptly deliver to Seller any
third-party reports relating to the Property prepared or caused to be prepared
by Purchaser during the Inspection Period, which reports Seller may retain in
its possession. Seller shall have the right, in addition to all of Seller's
other rights and remedies set forth in this Agreement, to deduct from the
Earnest Money any unpaid liabilities of Purchaser pursuant to this
subparagraph 9(b). Notwithstanding anything contained in this Agreement to
the contrary, the terms, provisions, conditions and indemnifications of this
subparagraph 9(b) shall survive Closing and the delivery of the Deed or the
termination of this Agreement.
(c) Results of Investigation Period. In addition to the foregoing,
Purchaser shall have until 5:00 p.m. on June 1, 1994 (the "Inspection Period")
during which Purchaser shall have the right and opportunity to inspect (i) the
physical condition of the Property and (ii) the Property Information. If, at
any time during the Inspection Period, Purchaser, in its sole and absolute
discretion, determines it does not desire to close the transaction
contemplated by this Agreement, Purchaser may elect to terminate this
Agreement by written notice thereof to Seller prior to the expiration of the
Inspection Period. In such event, the Earnest Money shall be returned to
Purchaser and each of the parties shall be released from further liability to
the other. In the event Purchaser shall fail to so notify Seller on or prior
to the expiration of the Inspection Period of Purchaser's desire to terminate
this Agreement as provided in this subparagraph 9(c), Purchaser's right to
terminate this Agreement pursuant to this subparagraph 9(c) shall expire.
10. Seller's and Purchaser's Representations.
(a) Representations and Warranties of Seller. In addition to
any other representations and warranties of Seller specifically set forth
herein, the following constitute representations and warranties of Seller made
as of the Effective Date, and, subject to the terms and conditions of
subparagraph 10(c)(iii) below, as of the Closing Date:
(i) Legal Matters. Seller has received no written
notice of any pending action, suit, proceeding, including without limitation,
condemnation proceeding, affecting Seller or the Property or any portion
thereof. Seller has received no written notice that the Property is subject
to any remedial obligations under any applicable laws.
(ii) Seller's Authority. Seller is a limited
partnership duly organized, validly existing and in good standing under the
laws of the State of Delaware and qualified to do business and is in good
standing under the laws of the State of Arizona. This Agreement and all
agreements, instruments and documents herein provided to be executed by Seller
are duly authorized, executed and delivered by and binding upon Seller in
accordance with their terms. All requisite action (corporate trust,
partnership or otherwise) has been taken or obtained by Seller in connection
with the entering into this Agreement and the consummation of the transactions
contemplated hereby, or, as to the consummation of the transaction
contemplated hereby, will be taken prior to the Closing Date.
(iii) Taxes, Special Taxes or Assessments. Seller has
paid ail taxes and assessments which may be due and owing on the Property.
Seller has received no written notice of any special real estate taxes or
assessments of any nature with respect to the Property or any part thereof.
(iv) Mechanics' Liens. Seller has received no
written notice of any claims for mechanics' liens for any labor, services or
materials for the benefit of the Property.
(v) Access, Ingress and Egress. The Property has
direct access to a paved public roadway.
(vi) Utilities. The Property is served by water,
sewer, gas, telephone and electricity, and such utilities are installed and
fully paid for.
(vii) Tax Parcel. The Property constitutes a separate
tax parcel(s) and is not being taxed as a part of a larger tax parcel.
(viii) Governmental Notices. Seller has received no
written notice from any governmental or quasi-governmental agency requiring
the correction of any existing condition with respect to the Property or the
Improvements by reason of a violation of any regulation or otherwise.
(ix) Condemnation. Seller has received no written
notice of any pending condemnation action with respect to the Property or the
Improvements.
(x) Claims. Seller has received no written notice
of any claims or actions against the Property or Seller that would limit or
prohibit Seller, in any material respect, from performing all of the terms,
covenants and provisions of this Agreement by Seller.
(xi) Outstanding Contracts. To Seller's knowledge,
there are no outstanding or unperformed contracts for improvements or repairs
to the Property or to the Improvements, or any unpaid or disputed bills for
labor, materials or services in connection with any repairs or improvements to
any portion of the Property or the Improvements that could give rise to a
mechanics' lien which will not be paid in the ordinary course of business. All
of the management, employment and service agreements encumbering the Property,
which cannot be cancelled upon thirty (30) days notice without penalty or
premium, are, together with those management, employment and service
agreements encumbering the Property which can be cancelled upon thirty (30)
days notice, set forth on Exhibit "C" hereto.
(xii) Parties in Possession. All of the occupied
apartment units at the Property are subject to a Tenant Lease listed on the
Rent Roll or Updated Rent Roll, as applicable. Seller has received no written
notice of any adverse claims with respect to the Property.
(xiii) Leases. As of the Effective Date and as of the
Closing Date, none of the Tenant Leases and none of the other rents or other
amounts payable thereunder are or will be assigned, pledged, or encumbered by
Seller, except to Seller's existing lender, if any, which will be released as
of Closing. All of the Tenant Leases are shown on the Rent Roll or will be
shown on the Updated Rent Roll, as applicable, and, except as shown on the
Rent Roll, or Updated Rent Roll, as applicable, Seller has not delivered any
written notice of default to any tenants under the Tenant Leases. To Seller's
knowledge, the landlord under the Tenant Leases is not in default of any of
its obligations thereunder. There are no oral agreements with any tenants
under the Tenant Leases. All leasing commissions attributable to the Tenant
Leases shall be paid on or prior to Closing.
(xiv) Insurance. All insurance policies now main-
tained on the Property will be kept in effect, up to and including Closing.
To the best of Seller's knowledge, Seller has not received any written notice
from any insurance company or rating organization to the effect that the
physical condition of the Property would prevent obtaining new insurance
policies at present rates.
(xv) Rent Roll. The Rent Roll is, and the Updated
Rent Roll shall be, true and correct.
(xvi) Income Statements. The Income Statements were
prepared by Seller in the ordinary course of business for Seller's internal
purposes.
(xvii) Environmental. To Seller's knowledge, without
investigation of any kind, there are no "Hazardous Materials" (as hereinafter
defined) located on the Real Property in an amount which would, as of the date
hereof, give rise to an "Environmental Claim" (as hereinafter defined) or
"Environmental Compliance Cost" (as hereinafter defined).
The term "Hazardous Materials" shall mean (i) any
chemicals, flammable substances or explosives, any radioactive materials, any
hazardous wastes or substances, any toxic wastes or substances or any other
materials or pollutants which have, as of the date hereof, been determined by
any applicable Federal, State or local government law to be hazardous or toxic
by the U.S. Environmental Protection, the U.S. Department of Energy, the U.S.
Department of Labor, the U.S. Department of Transportation, and/or any
instrumentality now or hereafter authorized to regulate materials and
substances in the environment which has jurisdiction over the property
("Environmental Agency"), and (ii) any oil, petroleum or petroleum derived
substance, any drilling fluids, produced waters and other wastes associated
with the exploration, development or production of crude oil which cause
Seller's Property (or any part thereof) to be in material violation of any
applicable environmental laws or the regulations of any Environmental Agency;
provided, however, that the term "Hazardous Materials" shall not include motor
oil and gasoline contained in or discharged in the ordinary course with
respect to the parking or transit of any vehicles at any time located on the
Real Property.
The term "Environmental Claim" means any third party
claim for personal injury, death and/or property damage made, asserted or
prosecuted by or on behalf of any person or entity, including, without
limitation, any governmental entity, employee or former employee of Seller or
Purchaser, as applicable, or any tenant and arising or allegedly arising as
the result of any Hazardous Material which was present or released in, on,
under or about the Real Property (or any part thereof).
The term "Environmental Compliance Cost" means any
out-of-pocket cost, fee or expenses incurred as a result of any law to bring
the Property into compliance with applicable Federal, State and local laws and
regulations relating to Hazardous Materials.
(xviii) "Seller's Representatives" (as hereinafter
defined) in the ordinary course of business of Seller's operation of the
Property are generally apprised as to any and all matters which would relate
to the truth and accuracy of Seller's representations and warranties set forth
above.
(b) Representations and Warranties of Purchaser. In addition to any
other representations and warranties of Purchaser specifically contained
herein, the following constitute representations and warranties of Purchaser
made as of the Effective Date and as of the Closing Date:
(i) Purchaser's Authority. Purchaser has the legal power,
right and authority to enter into this Agreement, to consummate the
transactions contemplated hereby and to execute and deliver all documents and
instruments to be delivered by Purchaser hereunder.
(ii) Requisite Action. All requisite action (corporate,
trust, partnership or otherwise) has been taken or obtained by Purchaser in
connection with the entering into this Agreement and the consummation of the
transactions contemplated hereby, or shall have been taken prior to the
Closing Date.
(c) Liability for Breaches of Representations and Warranties.
(i) Seller's Knowledge. Seller shall not be deemed to
have knowledge of any fact or condition pertaining to the representations and
warranties contained in subparagraph 10(a)(i) through 10(a)(xvii) above or
otherwise merely because Seller's agents, employees or contractors may have
had knowledge of such fact or condition. Purchaser hereby expressly agrees
Seller shall not be charged with knowledge of any fact or condition pertaining
to the Property (whether such fact or condition relates to the representations
or warranties contained in subparagraph 10(a)(i) through 10(a)(xvii) above or
otherwise) unless Keith Harris, vice president of the general partner of
Seller or Ms. Petra ___________ the manager of the Property or Ms. Mary
Jacobs, the applicable area manager for certain partners of Seller
(collectively "Seller's Representatives") had actual (as opposed to imputed)
knowledge of such fact or condition.
(ii) [Intentionally Deleted]
(iii) Change of Circumstances. In the event a change of
circumstances occurs on or prior to the Closing Date which causes any of
Seller's representations and warranties set forth in subparagraph 10(a) above
to become untrue, Seller shall be obligated to (a) immediately inform
Purchaser of any untrue representations and warranties and (b) on or prior to
the date which is thirty (30) days from the date of the discovery of such
change in circumstances (and the Closing Date shall, if necessary, be extended
to accommodate such cure period), cure such untrue representation and
warranty, provided Seller shall have no obligation to cure any such untrue
representation and warranty, the cost of which cure is anticipated to exceed
the sum of $10,000.00; provided, further, in the event Seller is (c) unable to
cure such untrue representation and warranty or (d) has no obligation to cure
such untrue representation and warranty inasmuch as the cost to cure such
untrue representation or warranty is in excess of $10,000.00 and Seller fails
to cure same, Purchaser shall have the right, as Purchaser's sole and
exclusive remedies hereunder, to either (r) terminate this Agreement by
written notice to Seller within ten (10) days of the expiration of Seller's
thirty (30) day cure period provided above, in which event, this Agreement
shall be null and void and of no further force or effect and the parties
hereto shall have no further obligations to the other, except all Earnest
Money shall be returned to Purchaser or (s) waive the foregoing right of
termination and close the transaction contemplated by this Agreement, in which
later event, (x) Seller shall have no liability whatsoever on account of such
untrue representation and warranty contained in subparagraph 10(a) above and
(y) at Closing, Purchaser shall receive a credit against the Purchase Price
equal to $10,000.00. Notwithstanding any of the foregoing provisions of this
subparagraph 10(c)(iii), in no event shall Seller be obligated to cure any
tenant defaults under any Tenant Lease or shall tenant defaults be deemed to
constitute a change of circumstances hereunder.
(iv) Seller's Notice. Wherever in this Agreement the
words "Seller has received no written notice (or words of similar effect)" are
utilized, such phrase shall be deemed to mean Seller's Representatives have
not received written notice within the past three (3) years of the fact or
circumstance in which such phrase qualifies.
11. As-Is Sale. EXCEPT AS MAY BE SPECIFICALLY STATED IN THIS
AGREEMENT, THE EXHIBITS HERETO AND IN ANY DOCUMENTS DELIVERED PURSUANT HERETO
SELLER HEREBY SPECIFICALLY DISCLAIMS ANY WARRANTY, GUARANTY, OR
REPRESENTATION, ORAL OR WRITTEN, PAST, PRESENT, OR FUTURE, OF, AS TO, OR
CONCERNING (i) THE NATURE AND CONDITION OF THE PROPERTY, INCLUDING, WITHOUT
LIMITATION, THE WATER, SOIL AND GEOLOGY, AND THE SUITABILITY THEREOF, FOR ANY
AND ALL ACTIVITIES AND USES WHICH PURCHASER MAY ELECT TO CONDUCT THEREON, (ii)
THE NATURE AND EXTENT OF ANY RIGHT-OF-WAY, ENCUMBRANCE, RESERVATION,
CONDITION, OR OTHERWISE, (iii) THE COMPLIANCE OF THE PROPERTY OR THE OPERATION
THEREOF WITH ANY LAWS, RULES, ORDINANCES, OR REGULATIONS OF ANY GOVERNMENT OR
OTHER BODY, (iv) ANY ENVIRONMENTAL CONDITIONS WHICH MAY EXIST ON THE PROPERTY,
INCLUDING, WITHOUT LIMITATION, THE EXISTENCE OR NONEXISTENCE OF "HAZARDOUS
MATERIALS" (AS DEFINED IN SUBPARAGRAPH 10(a)(xvii) ABOVE), AND (v) THE
FINANCIAL EARNING CAPACITY OR HISTORY OR EXPENSE HISTORY OF THE OPERATION OF
THE PROPERTY. THE CONVEYANCE OF THE PROPERTY IS MADE ON AN "AS-IS/WHERE-IS"
BASIS, AND PURCHASER EXPRESSLY ACKNOWLEDGES, IN CONSIDERATION OF THE
AGREEMENTS OF SELLER HEREIN, EXCEPT AS OTHERWISE SPECIFIED IN THIS AGREEMENT,
THE EXHIBITS HERETO AND IN ANY DOCUMENTS DELIVERED PURSUANT HERETO, SELLER
MAKES NO WARRANTY OR REPRESENTATION, EXPRESS OR IMPLIED, OR ARISING BY
OPERATION OF LAW, INCLUDING, BUT IN NO WAY LIMITED TO, ANY WARRANTY OF
CONDITION, HABITABILITY, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE
OF THE PROPERTY. PURCHASER ACKNOWLEDGES, WARRANTS AND REPRESENTS TO SELLER NO
REPRESENTATIONS HAVE BEEN MADE BY SELLER, ITS AGENTS, BROKERS, OR EMPLOYEES IN
ORDER TO INDUCE PURCHASER TO ENTER INTO THIS TRANSACTION OTHER THAN AS
EXPRESSLY STATED IN THIS AGREEMENT, THE EXHIBITS HERETO AND IN ANY DOCUMENTS
DELIVERED PURSUANT HERETO. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING,
PURCHASER ACKNOWLEDGES, WARRANTS AND REPRESENTS TO SELLER NEITHER SELLER NOR
SELLER'S AGENTS, BROKERS OR EMPLOYEES HAVE MADE ANY REPRESENTATION OR
STATEMENT TO PURCHASER CONCERNING THE PROPERTY'S INVESTMENT POTENTIAL OR
RESALE AT ANY FUTURE DATE, AT A PROFIT OR OTHERWISE, NOR HAS SELLER OR
SELLER'S AGENTS, BROKERS OR EMPLOYEES RENDERED ANY ADVICE OR EXPRESSED ANY
OPINION TO PURCHASER REGARDING ANY INCOME TAX CONSEQUENCES OF OWNERSHIP OF THE
PROPERTY.
PURCHASER ACKNOWLEDGES ANY THIRD-PARTY REPORTS SUPPLIED OR MADE
AVAILABLE BY SELLER, WHETHER WRITTEN OR ORAL, OR IN THE FORM OF MAPS, SURVEYS,
PLATS, SOIL REPORTS, ENGINEERING STUDIES, ENVIRONMENTAL STUDIES, OR OTHER
INSPECTION REPORTS PERTAINING TO
THE PROPERTY ("REPORTS") WERE DELIVERED TO PURCHASER ON AN "AS-IS/WHERE-IS"
BASIS SOLELY AS A COURTESY AND SELLER HAS NEITHER
VERIFIED THE ACCURACY OF ANY STATEMENTS OR OTHER INFORMATION
THEREIN CONTAINED, NOR ANY METHOD USED TO COMPILE THE REPORTS OR THE
QUALIFICATIONS OF THE PERSON(S) PREPARING THE REPORTS AND SELLER MAKES NO
REPRESENTATION, EXPRESS OR IMPLIED, OR ARISING BY OPERATION OF LAW AS TO THE
ACCURACY, COMPLETENESS OR ANY OTHER ASPECT OF THE REPORTS.
12. Casualty or Condemnation Prior to Closing.
(a) Casualty. In the event any of the Improvements upon the
Property are damaged or destroyed by fire or other casualty after the date
hereof but prior to the date of Closing, Seller shall promptly notify
Purchaser. In such event, the cost to repair any such damage to its condition
immediately prior to the casualty ("Cost to Repair") shall be promptly
estimated by a contractor mutually selected by Seller and Purchaser and either
party shall give the other party prompt written notice of the Cost of Repair
upon said party's receipt of same. If the Cost of Repair exceeds $250,000.00,
Purchaser shall have the right to elect either to terminate this Agreement or
to proceed to consummate the transaction contemplated by this Agreement. Such
election shall be made by notice to Seller not later than the earlier of (i)
ten (10) days following the date in which the Cost of Repair is delivered to
other party, as applicable, or (ii) the Closing Date. In the event Purchaser
elects to terminate this Agreement, all Earnest Money under this Agreement
shall be returned to Purchaser and the parties shall have no further rights
and liabilities with respect to each other. Failure of Purchaser to so
terminate this Agreement shall conclusively constitute Purchaser's election to
proceed with the transaction contemplated by this Agreement. If Purchaser
elects not to terminate this Agreement as herein provided, upon Closing,
Seller shall assign to Purchaser all rights to insurance proceeds payable for
such damage or destruction save and except proceeds expended for repairs to
the Property (with Purchaser's consent not to be unreasonably withheld or
delayed) and Purchaser shall receive a credit against the Purchase Price in
the amount of any unexpended deductible payable under Seller's insurance
policies.
In the event of damage or destruction whereby the Cost of Repair
is less than $250,000.00, the transaction contemplated by this Agreement shall
be consummated in accordance with the terms hereof, without a reduction in the
Purchase Price and, at Closing, Seller shall assign to Purchaser all rights to
insurance proceeds payable for such damage or destruction save and except any
proceeds expended for repairs to the Property (with Purchaser's consent not to
be unreasonably withheld or delayed) and Purchaser shall receive a credit
against the Purchase Price in the amount of any unexpended deductible payable
under Seller's insurance policies.
(b) Condemnation. In the event after the date hereof, but prior to
the Closing Date, a "Material Portion of the Property" (i.e. greater than 10%
total square footage of the Property or any portion of the Improvements) is
taken by eminent domain or is under notice of an eminent domain proceeding,
Purchaser shall have the right to elect either to terminate this Agreement or
to proceed to consummate the purchase and sale hereunder, without a reduction
in the Purchase Price. Such election shall be made by written notice to
Seller not later than the earlier of (i) ten (10) days following the date on
which Seller has notified Purchaser of such eminent domain or (ii) the Closing
Date. In the event Purchaser elects to terminate this Agreement, all Earnest
Money under this Agreement, together with any and all interest earned thereon,
shall be returned to Purchaser and the parties shall have no further rights
and liabilities with respect to each other. Failure of Purchaser to so
terminate this Agreement shall conclusively constitute its election to proceed
with the purchase and sale hereunder. If Purchaser elects not to terminate
this Agreement as herein provided, upon Closing, Seller shall assign to
Purchaser all rights to the award.
In the event, prior to the Closing Date, less than a Material
Portion of the Property is taken by eminent domain or is under notice of an
eminent domain proceeding, the transaction contemplated hereunder shall be
consummated in accordance with the terms hereof, without a reduction in the
Purchase Price, and, at Closing, Seller shall assign to Purchaser all rights
to the award.
(c) Uniform Vendor and Purchaser Risks. It is the express intent of
the parties hereto that the rights and duties set forth in this Paragraph 12
govern the rights of the parties in the event of casualty or condemnation
rather than the rights prescribed in any applicable law of the State of
Arizona.
13. Real Estate Commission.
(a) Seller and Purchaser covenant and agree, one with the other,
no real estate commissions, finders' fees or brokers' fees have been or will
be incurred in connection with this Agreement or the sale contemplated hereby,
except a commission equal to one and one-half per cent (1.5%) of the amount of
the Purchase Price received by Seller, to CB Commercial (the "Agent"), which
commission shall be due and payable in cash at Closing by Seller if, as and
when the sale contemplated hereby is consummated. Seller shall be solely
responsible for the payment of any and all real estate commissions, claims to
such commissions and/or similar type fees arising, directly or indirectly, out
of this transaction and based upon the actions of Seller. Seller does hereby
agree to indemnify Purchaser against and hold Purchaser harmless from any and
all such real estate commissions, claims to such commissions or similar fees,
including reasonable attorneys' fees incurred in any lawsuit regarding such
commissions or fees to the extent such claims or liabilities are based upon,
the actions of Seller. Purchaser shall be solely responsible for the payment
of any and all real estate commissions, claims to such commissions and/or
similar type fees arising, directly or indirectly, out of this transaction and
based on the actions of Purchaser. Purchaser does hereby agree to indemnify
Seller and hold Seller harmless from and against any such real estate
commissions or similar fees, other than the fee payable above to Agent,
including costs and reasonable attorneys' fees, incurred in any lawsuit
regarding such commissions and fees to the extent such claims and liabilities
are based upon actions of Purchaser. Notwithstanding anything contained in
this Agreement to the contrary, the terms, provisions, conditions and
indemnifications of this subparagraph 13(a) shall survive Closing and the
delivery of the Deed or the termination of this Agreement.
(b) PURCHASER ACKNOWLEDGES, AT THE TIME OF EXECUTION OF THIS
AGREEMENT, AGENT ADVISED PURCHASER BY THIS WRITING THAT PURCHASER SHOULD HAVE
THE COMMITMENT COVERING THE PROPERTY EXAMINED BY AN ATTORNEY OF PURCHASER'S
OWN SELECTION OR PURCHASER SHOULD BE FURNISHED WITH OR OBTAIN A POLICY OF
TITLE INSURANCE.
14. Default.
(a) Seller's Pre-Closing Default. In the event Seller shall
fail to comply with any of its obligations to be performed by Seller hereunder
on or prior to the Closing Date, then Purchaser shall be entitled to elect, by
written notice to Seller, as its sole and exclusive remedy hereunder, to
either (i) the return of the Earnest Money or (ii) specific performance of
this Agreement.
(b) Purchaser's Default. In the event Purchaser shall fail to
comply with any of its obligations to be performed by Purchaser hereunder on
or prior to the Closing Date, as Seller's sole and exclusive remedy and
relief, the Earnest Money shall be paid to Seller by Title Insurer as
liquidated damages for Purchaser's default. Such amount is agreed upon
between Seller and Purchaser as liquidated damages, due to the difficulty and
inconvenience of ascertaining and measuring actual damages, and the
uncertainty thereof; and no other damages, rights or remedies shall in any
case be collectible, enforceable or available to Seller.
(c) Seller's Post-Closing Default. In the event subsequent to
Closing and delivery of the Deed to Purchaser, Seller has breached or incurred
liability under this Agreement pursuant to (i) any representation or warranty
set forth in subparagraph 10(a) hereof or (ii) any other covenant of Seller
contained in this Agreement, Seller's aggregate liability and Purchaser's
recovery as a result thereof shall not exceed Two Hundred Fifty Thousand and
00/100 Dollars ($250,000.00).
15. Possession. Seller shall, subject to the rights of tenants
pursuant to the Tenant Leases assigned to Purchaser pursuant to the Assignment
and Assumption of Leases and Contracts, deliver possession of the Property to
Purchaser on the Closing Date.
16. Successors and Assigns. Purchaser may not assign or transfer its
rights or obligations under this Agreement without the prior written consent
of Seller, the granting or denial of which consent shall be in the sole
discretion of Seller. In the event of any such assignment, the original party
designated as Purchaser hereunder shall be released from all of its duties and
obligations hereunder upon (i) the assumption of such obligations by
Purchaser's assignee and (ii) Seller's receipt of an assignment and assumption
agreement executed by each of said parties in form and substance reasonably
acceptable to Seller ("Assumption Agreement"). Seller agrees, upon receipt of
the Assumption Agreement, to close the transaction contemplated hereunder with
Purchaser's assignee. Seller may not assign this Agreement. No transfer or
assignment by Seller or Purchaser in violation of the provisions hereof shall
be valid or enforceable. Subject to the foregoing, this Agreement and the
terms and provisions hereof shall inure to the benefit of and be binding upon
the successors and assigns of the parties.
17. Notices. All notices or other communications required or
permitted hereunder shall be in writing, and shall be personally delivered or
sent by facsimile telecommunications (followed by next day overnight delivery
service), by overnight air express service or by registered or certified mail,
postage prepaid, return receipt requested, addressed to the parties hereto at
their respective addresses set forth below. Such notice or other
communication shall be deemed given (a) upon receipt or upon refusal to accept
delivery if delivered by facsimile telecommunication or Registered or
Certified Mail or (b) one (1) business day after tendering to an overnight air
express service.
Seller: c/o JMB Realty Corporation
900 North Michigan Avenue
Chicago, Illinois 60611
Attention: Keith Harris
Telephone No.: (312) 915-2700
Facsimile No.: (312) 915-2720
With a copy to: Pircher, Nichols & Meeks
1999 Avenue of the Stars
Suite 2600
Los Angeles, California 90067
Attention: Jay B. Newman, Esq.
Telephone No.: (310) 201-8900
Facsimile No.: (310) 201-8941
Purchaser: CPT Arizona, Inc.
3200 S.W. Freeway
1500 Phoenix Tower
Houston, Texas 77027
Attention: Mark H. Cassidy
Telephone No.: (713) 964-3500
Facsimile Nc.: (713) 964-3599
With a copy to: Elizabeth Pringle Johnson, Esq.
CPT Arizona, Inc.
3200 S.W. Freeway
1500 Phoenix Tower
Houston, Texas 77027
Telephone No.: (713) 964-3500
Facsimile No.: (713) 964-3599
Notice of change of address shall be given by written notice in the manner
detailed in this Paragraph 17.
18. Miscellaneous.
(a) This Agreement contains the entire Agreement between the
parties respecting the matters herein set forth and supersedes all prior
agreements between the parties hereto respecting such matters, if any, there
being no other oral or written promises, conditions, representations,
understandings, warranties or terms of any kind as conditions or inducements
to the execution hereof and none have been relied upon by either party.
(b) Time is of the essence of this Agreement.
(c) Paragraph headings shall not be used in construing this
Agreement.
(d) Except as herein expressly provided, no waiver by a party of
any breach of this Agreement by the other party shall be deemed to be a waiver
of any other breach by such other party (whether preceding or succeeding and
whether or not of the same or similar nature), and no acceptance of payment or
performance by a party after any breach by the other party shall be deemed to
be a waiver of any breach of this Agreement or of any representation or
warranty hereunder by such other party whether or not the first party knows of
such breach at the time it accepts such payment or performance.
(e) No failure or delay by a party to exercise any right it may
have by reason of the default of the other party shall operate as a waiver of
default or as a modification of this Agreement or shall prevent the exercise
of any right by the first party while the other party continues to be so in
default.
(f) Except as otherwise expressly provided herein, any approval
or consent provided to be given by a party hereunder may be given or withheld
in the absolute discretion of such party.
(g) This Agreement shall be construed and enforced in accordance
with the laws of the State of Arizona.
(h) No agreement, amendment, modification, understanding or
waiver of or with respect to this Agreement or any term, provision, covenant
or condition hereof, nor any approval or consent given under or with respect
to this Agreement, shall be effective for any purpose unless contained in a
writing signed by the party against which such agreement, amendment,
modification, understanding, waiver, approval or consent is asserted.
(i) Neither this Agreement nor a memorandum thereof shall be
recorded by Purchaser or Seller.
(j) If the final day of any period or any date of performance
under this Agreement falls on a Saturday, Sunday or legal holiday, then the
final day of the period or the date of such performance shall be extended to
the next business day.
(k) Except as to those obligations or liabilities that spe-
cifically survive Closing as expressly stated in this Agreement, all
obligations to be performed and liabilities incurred by Seller and/or
Purchaser under the provisions of this Agreement shall not survive Closing and
shall be deemed to merge with the Deed upon delivery and acceptance of the
Deed at Closing. All of Seller's and Purchaser's representations and
warranties contained in this Agreement or otherwise arising out of the sale of
the Property by Seller to Purchaser shall survive Closing and delivery of the
Deed for a period of one (1) year subsequent to the Closing Date ("Survival
Period"). Any claim by either party of a breach of a representation and
warranty by the other party must be made, in writing, to the other party on or
before the expiration of the Survival Period and, in addition, any such party,
in order to continue its claim, must file a lawsuit asserting such claim in a
court of competent jurisdiction within eighteen (18) months subsequent to the
Closing Date.
(l) No present or future general partner of Seller or of any
partnership which is now or hereafter a general partner of Seller or any
individual partner of the general partner of Seller or any individual partner
or any partnership which is now or hereafter a general partner of Seller,
including but not limited to JMB Realty Corporation or any officers,
employees, servants, affiliates, subsidiaries or agents of any of the
foregoing individuals or entities (all of the above are collectively, the
"Released Parties") shall have any personal liability, directly or indirectly,
under or in connection with this Agreement or any agreement made or entered
into under or pursuant to the provisions of this Agreement or any amendments
to any of the foregoing made at any time or times, heretofore or hereafter,
and Purchaser hereby waives any and all such liability of the Released
Parties. In addition, the obligations of the direct or indirect partners to
Seller to make capital contributions to Seller shall not constitute assets of
Seller against which recourse may be sought for purposes hereof. Nothing
contained herein shall impair or limit the liability of Seller as expressly
set forth under this Agreement. The provisions of this subparagraph 18(1)
shall expressly survive Closing and the delivery of the Deed.
(m) Notwithstanding anything to the contrary contained in this
Agreement, in the event this Agreement is terminated for any reason, the
indemnifications of (i) Purchaser, set forth in subparagraph 9(b) and
Paragraph 13 hereof and (ii) Seller, set forth in Paragraph 13 hereof, shall
survive such termination.
(n) Contemporaneously with Purchaser's execution of this
Agreement, Purchaser has delivered to Seller a check in the amount of $100.00
("Independent Consideration"), which Independent Consideration the parties
bargained for and agreed to as consideration for Seller's execution and
delivery of this Agreement. This Independent Consideration is in addition to
and independent of any other consideration or payment provided in this
Agreement, is nonrefundable and shall be retained by Seller notwithstanding
any other provisions of this Agreement; provided, however, if the transaction
contemplated by this Agreement closes as set forth herein, Purchaser shall
receive a credit against the Purchase Price in the amount of the Independent
Consideration.
(o) Neither party assumes or agrees to pay, or indemnify the
other party or any other person or entity against any liability, obligation or
expense of said party relating to the Property prior to the Closing Date, in
any way except, and only to the extent, if any, expressly provided for herein
or in the documents executed at Closing.
(p) In the event it becomes necessary for either party hereto to
file a suit to enforce this Agreement or any provisions contained herein, the
party prevailing in such action shall be entitled to recover, in addition to
all other remedies or damages expressly provided herein, reasonable attorneys'
fees and court costs, including appellate costs, incurred in such suit.
(q) No individual officer, director, employee, servant,
affiliate, subsidiary, agent or representative of Purchaser, or any general or
limited partner of any assignee of the rights of Purchaser hereunder, or any
officer, director, employee, servant, affiliate, subsidiary, agent or
representative of any general or limited partner of any assignee of the rights
of Purchaser hereunder (collectively, "Purchaser Released Parties"), shall
have any personal liability, directly or indirectly, under or in connection
with this Agreement or any agreement made or entered into under or pursuant to
the provisions of this Agreement or any amendments to any of the foregoing
made at any time or times, heretofore or hereafter, and Seller hereby waives
any and all such liability. Purchaser is acquiring only the property of
Seller and is not the successor of Seller. Nothing contained herein shall
impair or limit the liability of Purchaser as expressly set forth under this
Agreement. The provisions of this subparagraph 18(q) shall expressly survive
Closing and delivery of the Deed.
(r) The "Effective Date" hereunder shall be the last date set
forth next to the parties signatures provided below.
19. [INTENTIONALLY DELETED.]
20. Covenants of Seller. Seller hereby covenants to Purchaser, during
the term of this Agreement, Seller:
(i) will maintain the Property in the historical manner in which
Seller has maintained the Property during Seller's period of ownership;
(ii) will maintain property insurance in an amount not less than
the Purchase Price;
(iii) will perform its obligations as Landlord set forth in the
Tenant Leases;
(iv) will not, except as set forth immediately below, enter into
any new Tenant Leases ("New Tenant Leases") with a term of greater than six
(6) months or for rents less than the current stated rental rates for the
Property; provided, however, Seller shall have the right to enter into New
Tenant Leases at the current stated rental rates for the Property with a term
of greater than six (6) months but not in excess of one (1) year, provided the
aggregate number of Tenant Leases encumbering the Property as of Closing for
terms in excess of six (6) months are not in excess of 60% of the aggregate
number of Tenant Leases encumbering the Property as of Closing;
(v) will not enter into any service, employment or management
contract encumbering the Property which is not cancelable upon thirty (30)
days notice without premium or penalty; and
(vi) for informational purposes only (without any representation
or warranty whatsoever), will inform Purchaser of Seller's receipt of a
written notice of actual or potential, if specifically stated in said written
notice, litigation relating to the Property.
21. Missing Personal Property. To the extent any item of Personal
Property listed on Exhibit B hereto is missing from the Property as of the
Closing Date (collectively, "Missing Personal Property"), it is hereby agreed
Purchaser shall receive a credit against the Purchase Price, at Closing, equal
to the aggregate fair market value of such Missing Personal Property.
22. Compliance With Laws. To the extent, after the expiration of the
Investigation Period, but on or prior to the Closing Date (A) Purchaser
discovers the Property is not in compliance with any applicable laws,
ordinances, regulations, statutes, rules and/or restrictions specifically
affecting the Property ("Property Non-Compliance") and, provided such Property
Non-Compliance (i) was not reasonably discoverable by Purchaser during the
Inspection Period and (ii) (a) causes liability directly against Seller, as
the fee owner of the Property, in excess of Eighty-Five Thousand, and 00/100,
Dollars or (b) causes a diminution in the value of the Property in excess of
Eighty-Five Thousand and 00/100 Dollars ($85,000.00), and, in either case,
Seller does not cure such Property Non-Compliance within thirty (30) days
subsequent to the date such Property Non-Compliance is discovered (and the
Closing Date shall be extended to accommodate such cure period, if necessary)
(it being acknowledged by Purchaser that Seller shall have no obligation to
cure such Property Non-Compliance and, such cure, if performed or commenced to
be performed by Seller, if any, shall only be at Seller's election, in
Seller's sole and absolute discretion) or (B) the City of Tucson amends its
zoning regulations and/or its zoning map, to the extent applicable, the result
of which causes the Property to be deemed a "non-conforming use" for all
purposes of operating an apartment complex thereon ("Property Zoning Non-
Compliance"), in either case, Purchaser shall have the right to either (x)
terminate this Agreement by written notice to Seller given on or before the
Closing Date, in which event, this Agreement shall be null and void and of no
further force or effect and the parties hereto shall have no further
obligation or liabilities to the other, except all Earnest Money shall be
returned to Purchaser or (y) waive the foregoing right of termination and
close the transaction contemplated by this Agreement, without a reduction in
the Purchase Price, in which case, Seller shall have no liability whatsoever
with respect to such Property Non-Compliance or Property Zoning Non-
Compliance, as the case may be.
23. Audit Provisions. Seller acknowledges that Purchaser may desire
to undertake an audit of the financial statements for the Property and in
connection therewith, the books and records for the Property from which such
financial statements were produced in accordance with the requirements of the
Securities and Exchange Commission for a so-called "8K" audit. Seller shall
reasonably cooperate with Purchaser in connection with such audit; provided,
however, such audit shall be at Purchaser's sole cost and expense (and shall
in no event be a condition to the closing of the transaction under this
Agreement). In connection therewith, Purchaser shall give Seller at least 15
business days prior written notice of its intention to conduct such an audit.
Such audit shall be conducted during normal business hours at a time
reasonably convenient to Seller without cost and expense to Seller. At
Seller's election, such audit shall be conducted in the presence of a
representative of Seller. In addition, such audit shall be performed without
interference with Seller and its business. Such audit may not be performed at
any time after the date that is 365 days after the Closing Date. Purchaser
hereby releases Seller from any and all claim, loss, damage, cost, expense,
loss or liability relating to any of the information disclosed by such audit
or Seller as a result of its compliance with this paragraph; provided,
however, that this release shall not operate to waive any claims which
Purchaser may have against Seller, as a result of a breach of any
representation or warranty contained in this Agreement. The provision of this
paragraph 23 shall survive Closing.
24. Confidentiality. Except as otherwise expressly provided for in
this Agreement, each party hereto shall use its diligent efforts to have
itself and its representatives hold in confidence the execution of this
Agreement with the other party and all material terms and provisions of this
Agreement and all data and information obtained with respect to the other
party or its business (including information relating to the Property),
whether obtained before or after the execution and delivery of this Agreement;
provided, however, that Seller shall not be responsible for any violation of
this provision by Agent. In the event this Agreement is terminated or a party
defaults hereunder and the transaction contemplated by this Agreement does not
occur, then each party shall promptly return to the other party any
statements, documents, schedules, exhibits or other written information
obtained from the other party in connection with this Agreement or the
transactions contemplated herein. The foregoing restrictions shall not
inhibit the disclosure of any and all such data and information (i) that is in
the public domain, (ii) to a party's partners, investors, employees,
accountants, independent contractors, bankers, potential partners, potential
investors, agents, attorneys, consultants, potential partners and potential
investors, or (iii) as may otherwise be required by law. The provisions of
this Paragraph 24 shall survive Closing.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
Effective Date.
Date: May , 1994
Date: May , 1994
EASTRIDGE ASSOCIATES LIMITED
PARTNERSHIP, a Delaware limited
partnership
CPT ARIZONA, INC.,
a Delaware corporation
By: JMB/EASTRIDGE INVESTORS, INC.,
an Illinois corporation, corporate
general partner
By:
Mark H. Cassidy
Vice President
By: KEITH HARRIS
Keith Harris
Vice President
EXHIBIT A
Legal Description
All that portion of the Southwest one-quarter of the Northwest one-quarter of
Section 9, Township 14 South, Range 15 East, Gila and Salt river Base and
Meridian, Pima County, Arizona, more particularly described as follows:
BEGINNING at a point on the South line of said Southwest one-quarter, from
which the Southwest corner bears South 89 degrees 44 minutes 29 seconds West,
(89 degrees, 43 minutes 55 seconds Record) 30.00 feet distant;
THENCE North 00 degrees 37 minutes 40 seconds West along the Easterly right-
of-way of Pantano Road, 30.00 feet Easterly of and parallel with the West line
of said Southwest one-quarter, 577.06 feet;
THENCE North 89 degrees 44 minutes 29 seconds East (89 degrees 43 minutes 55
seconds Record) and parallel with the South line of said Southwest one-
quarter, 1,081.95 feet (1,082.00 Record) to the Westerly boundary of BELCORTE,
a subdivision of Pima County, Arizona, according to the map of record in the
Pima County Recorder's Office in Book 35 of Maps and Plats, at page 22;
THENCE along the Westerly boundary of the aforementioned parcel the following
courses and distances;
THENCE South 00 degrees 28 minutes 16 seconds East, 521.96 feet;
THENCE Southwesterly along a curve concave to the Northwest, having a radius
of 25.00 feet and a central angle of 90 degrees 12 minutes 45 seconds (90
degrees 12 minutes 11 seconds Record), an arc length of 39.36 feet to a point
of tangency;
THENCE South 00 degrees 15 minutes 31 seconds East (00 degrees 16 minutes 05
seconds Record) along a radial line, 30 feet to the South line of said
Southwest one-quarter;
THENCE leaving said Westerly boundary, South 89 degrees 44 minutes 29 seconds
West (89 degrees 43 minutes 55 seconds Record) 1,055.18 (1,055.23 Record) to
the point of Beginning.
EXCEPT all coal and other minerals as reserved in the Patent from the United
States of America; AND
EXCEPT any portion lying within the following described parcel:
That portion of the Southwest Quarter of the Northwest Quarter of Section 9,
Township 14 South, Range 15 East, Gila and Salt River Base and Meridian, Pima
County, Arizona, more particularly described as follows:
COMMENCING at the Southeast corner of said Southwest one-quarter;
THENCE South 89 degrees 44 minutes 29 seconds West (89 degrees 43 minutes 55
seconds Record) 227.19 feet (227.20 feet Record);
THENCE North 00 degrees 15 minutes 31 seconds West (00 degrees 16 minutes 05
seconds Record), along a radial line, 30 feet to the TRUE POINT OF BEGINNING;
THENCE Northeasterly along a curve concave to the Northwest having a radius of
25.00 feet and a central angle of 90 degrees 12 minutes 45 seconds (90 degrees
12 minutes 11 seconds Record) an arc length of 39.36 feet to a point of
tangency;
THENCE North 00 degrees 28 minutes 16 seconds West, 521.96 feet;
THENCE South 89 degrees 44 minutes 29 seconds West (89 degrees 43 minutes 55
seconds Record) 41.00 feet;
THENCE South 00 degrees 28 minutes 16 seconds East, 15.00 feet to a point of
curvature;
THENCE Southerly along a curve concave to the East, having a radius of 113.00
feet and a central angle of 16 degrees 45 minutes 51 seconds, an arc length of
33.06 feet to a point of reverse curvature;
THENCE Southerly along a curve concave to the West, having a radius of 87.00
feet and a central angle of 16 degrees 45 minutes 51 seconds, an arc length of
25.46 feet to a point of tangency;
THENCE South 00 degrees 28 minutes 16 seconds East, 354.19 feet to a point of
curvature;
THENCE Southerly along a curve concave to the West, having a radius of 77.00
feet and a central angle of 44 degrees 55 minutes 35 seconds, an arc length of
60.38 feet to a point of reverse curvature;
THENCE Southerly along a curve concave to the East, having a radius of 103.00
feet and a central angle of 34 degrees 43 minutes 24 seconds, an arc length of
62.42 feet to a point of reverse curvature;
THENCE Southwesterly along a curve concave to the Northwest, having a radius
of 25.00 feet and a central angle of 28 degrees 18 minutes 58 seconds, an arc
length of 12.36 feet;
THENCE North 89 degrees 44 minutes 29 seconds East, along a non-tangent line,
30.00 feet Northerly of and parallel with the South line of said Southwest
Quarter, 63.38 feet to the TRUE POINT OF BEGINNING;
FURTHER EXCEPTING that portion conveyed to the City of Tucson, a municipal
corporation by Deed recorded in Docket 7213, Page 341.
EXHIBIT B
PERSONAL PROPERTY
TO BE PROVIDED BY SELLER WITHIN 10 DAYS OF THE DATE HEREOF
EXHIBIT C
SCHEDULE OF CONTRACTS
TO BE PROVIDED BY SELLER WITHIN 10 DAYS OF THE DATE HEREOF
EXHIBIT D
LICENSES AND WARRANTIES
TO BE PROVIDED BY SELLER WITHIN 10 DAYS OF THE DATE HEREOF
EXHIBIT E
PERMITS
TO BE PROVIDED BY SELLER WITHIN 10 DAYS OF THE DATE HEREOF
EXHIBIT F
EARNEST MONEY ESCROW AGREEMENT
TO: First American Title Insurance Company
100 North LaSalle Street
Suite 2115
Chicago, Illinois 60602
Attention:
RE: Escrow Trust No.
DATE: May , 1994
I. PARTIES
A. Seller: Eastridge Associates Limited
Partnership
c/o JMB Realty Corporation
900 North Michigan Avenue
Chicago, Illinois 60611
Attention: Keith Harris
B. Purchaser: CPT Arizona, Inc.
3200 S.W. Freeway
1500 Phoenix Tower
Houston, Texas 77027
Attention: Mark H. Cassidy
C. Escrow Holder: First American Title Insurance Company
100 North LaSalle Street
Suite 2115
Chicago, Illinois 60602
Attention:
D. Purchaser's
Counsel: CPT Arizona, Inc.
3200 S.W. Freeway
1500 Phoenix Tower
Attention: Elizabeth Pringle
Johnson, Esq.
E. Seller's Counsel: Pircher, Nichols & Meeks
1999 Avenue of the Stars
Suite 2600
Los Angeles, California 90067
Attention: Jay B. Newman, Esq.
II. PRELIMINARY STATEMENTS
A . Under the terms of a Purchase and Sale Agreement between
Seller and Purchaser, Seller has agreed to sell to Purchaser certain land and
improvements located in Tucson, Arizona and commonly known as "Eastridge
Apartments".
B. Pursuant to Paragraph 2(a) of the Agreement, Purchaser is required
to deposit with Escrow Holder the sum of Two Hundred Thousand and 00/100
Dollars ($200,000.00) (hereinafter referred to as the "Earnest Money"), to be
held by Escrow Holder pursuant to the terms and provisions of this Earnest
Money Escrow Agreement.
C. Pursuant to subparagraph 9(c) of the Agreement, Purchaser has the
right to terminate the Agreement and to have the Earnest Money and interest
earned thereon returned to Purchaser.
III. DEPOSIT OF EARNEST MONEY; INVESTMENT DIRECTIONS
A. Concurrently herewith, Purchaser has deposited the Earnest
Money with the Escrow Holder in accordance with the Agreement.
B. Escrow Holder is hereby authorized and directed to invest
all Earnest Money deposited herein or any portion thereof in a combination of
separately segregated insured money market
accounts. Unless otherwise provided pursuant to the provisions
of Section IV hereof, such investment shall be for the benefit of
Purchaser. The Federal Taxpayer Identification Number of the
Purchaser is .
IV. INSTRUCTIONS
A. In the event Escrow Holder receives from Purchaser (or Purchaser's
counsel) on or before 5:00 p.m. (C.S.T.) on June 1, 1994, a certification in
the form attached hereto as Schedule 1, then Escrow Holder is authorized and
directed to return, within one (1) business day thereafter, the Earnest Money,
together with all interest earned thereon, to Purchaser.
B. If Escrow Holder has not received the certification set forth in
Article IV.A. above on or before 5:00 p.m. (C.S.T.) on June 1, 1994, Escrow
Holder is instructed to hold and invest the Earnest Money deposited hereunder
or any portion thereof, together with all interest earned thereon, until the
Escrow Holder is in receipt of (i) a joint direction from Seller (or Seller's
Counsel) and Purchaser (or Purchaser's Counsel) or (ii) an order, judgment or
decree addressed to Escrow Holder which shall have been entered or issued by
any court and which shall determine the disposition of the Earnest Money and
all interest earned thereon.
C. Any party delivering a notice required or permitted hereunder
shall simultaneously deliver copies of such notice to all parties listed in
Section I of this Earnest Money Escrow Agreement. All notices required herein
shall be either personally delivered, sent by certified or registered mail,
postage prepaid, return receipt requested, or sent by overnight courier and
shall, in all instances, be deemed to have been received upon delivery
thereof.
D. Except as otherwise expressly set forth in this Agreement, Escrow
Holder shall disregard any and all notices or warnings given by any of the
parties hereto.
E. Subject to the terms of Paragraph H hereof, in case Escrow Holder
obeys or complies with any order, judgment or decree of any court with respect
to the Earnest Money, Escrow Holder shall not be liable to any of the parties
hereto or any other person, firm or corporation by reason of such compliance.
In case of any suit or proceeding regarding this Earnest Money Escrow
Agreement to which Escrow Holder is or may be at any time a party, Seller and
Purchaser shall each be liable for one-half of all such costs, fees and
expenses incurred or sustained by Escrow Holder and shall forthwith pay the
same to Escrow Holder upon demand; provided, however, that in the event Escrow
Holder is made a party to any suit or proceeding between Seller and Purchaser,
the prevailing party in such suit or proceeding shall have no liability for
the payment of Escrow Holder's costs, fees and expenses.
F. In no case shall the above mentioned deposit be surrendered except
(i) in the manner specifically described in this Earnest Money Escrow
Agreement; (ii) on an order signed by the Seller (or Seller's Counsel) and
Purchaser (or Purchaser's Counsel); or (iii) in obedience to the process of a
final, non-appealable order of a court as aforesaid.
G. All fees of Escrow Holder shall be charged one-half to
Seller and one-half to Purchaser.
H. Any order, judgment or decree requiring the Escrow Holder
to disburse the Earnest Money shall not be binding upon Purchaser or Seller as
to the ultimate disposition of the Earnest Money and Escrow Holder cannot rely
on said order, judgment or decree unless and until a final, non-appealable
order, judgment or decree is entered by a court having jurisdiction thereof.
I. This Earnest Money Escrow Agreement and all provisions hereof
shall be binding upon and shall inure to the benefit of the parties hereto and
their respective legal representatives, successors and permitted assigns.
FOR SELLER:
EASTRIDGE ASSOCIATES LIMITED PARTNERSHIP
By: JMB/EASTRIDGE INVESTORS, INC.,
corporate general partner
By: KEITH HARRIS
Keith Harris
Vice President
FOR PURCHASER:
CPT ARIZONA, INC.
By:
Mark H. Cassidy
Vice President
Accepted this
day of May, 1994
First American Title Insurance Company,
Escrow Holder
By:
Name:
EXHIBIT F
Schedule 1
CERTIFICATION
The undersigned hereby certifies to First American Title Insurance
Company, as Escrow Holder under that certain Earnest Money Escrow Agreement
dated May __, 1994, Escrow No. that CPT Arizona, Inc., a Delaware corporation,
has elected to terminate that certain Agreement of Purchase and Sale dated
May __, 1994 by and between CPT Arizona, Inc., a Delaware corporation, as
Purchaser, and Eastridge Associates Limited Partnership, a Delaware limited
partnership, as Seller, pursuant to subparagraph 9(c) of said Agreement.
Dated: , 1994
PURCHASER:
CPT ARIZONA, INC.,
a Delaware corporation
By:
Name:
Title:
EXHIBIT G
ESCROW INSTRUCTIONS
Escrow No.
"Commitment" No.
File No.:
Escrow Officer:
, 1994
TO: First American Title Insurance Company ("Title")
100 North LaSalle Street
Suite 2115
Chicago, Illinois 60602
I. DEFINITIONS
A. Seller: Eastridge Associates Limited
Partnership
900 North Michigan Avenue
Chicago, Illinois 60611
Attention: Keith Harris
B. Seller's Attorney: Pircher, Nichols & Meeks
1999 Avenue of the Stars
Suite 2600
Los Angeles, California 90067
Attention: Jay B. Newman, Esq.
C. Purchaser: CPT Arizona, Inc.
3200 S.W. Freeway
1500 Phoenix Tower
Houston, Texas 77042
Attention: Mark H. Cassidy
D. Purchaser's Attorney: CPT Arizona, Inc.
3200 Southwest Freeway
1500 Phoenix Tower
Houston, Texas 77042
Attention: Elizabeth Pringle
Johnson, Esq.
E. Property: Property commonly known as Eastridge
Apartments, Tucson, Arizona, legally described on Schedule I attached hereto.
II. DESCRIPTION OF TRANSACTION
This transaction involves the purchase and sale of the
Property. The purchase price of $12,075,000.00, plus or minus net prorations
(the "Purchase Price"), shall be paid as provided herein.
III. DEPOSITS
(i) Seller, through its attorney, shall deposit or cause to
be deposited with you on or before June 6, 1994, the following documentation,
fully executed where applicable ("Seller's Deposits"):
1. Special Warranty Deed (and a copy thereof to be stamped with
appropriate recording information) (the "Deed");
2. Two (2) "Bills of Sale";
3. Two (2) "FIRPTA Certificates";
4. Two (2) "Assignment of Warranties, Name, Permits and Miscellaneous
Property";
5. Two (2) "Seller's Certificates";
6. UCC, Tax Lien and Judgment Searches of Seller ("Searches");
7. "Corporate Resolution" of the corporate general partner of Seller;
8. "Termination of Management Agreement";
9. "Updated Rent-Roll";
10. Two (2) "Re-Affirmation" of the representations and warranties of
Seller;
11. One (1) Grantor's Affidavit, if applicable;
12. One (1) "Municipal Utility District Notice" if applicable;
13. One (1) "Notice of Restrictive Covenants" if applicable;
14. [Intentionally Deleted.]
15. Any documentation as may be reasonably required by Title in order
for Title to issue the "Title Policy" (as hereinafter defined);
16. A Letter addressed to each tenant of the Property from Seller (the
"Tenant Letters"); and
17. Such additional funds as may be necessary to close the transaction
contemplated by the Agreement to the extent, and only to the extent, the funds
contained within Purchaser's Deposit No. III (ii)l referred to below are
insufficient for Seller to close the transaction contemplated by the
Agreement.
ALL OF SELLER'S DEPOSITS ARE SUBJECT TO THE REASONABLE REVIEW AND APPROVAL OF
PURCHASER'S ATTORNEY.
(ii) Purchaser, through its attorney, shall deposit or cause to be
deposited with you on or before June 6, 1994, the following documentation and
monies ("Purchaser's Deposits"):
1. Bank transfer funds in the amount of $12,075,000.00, plus or minus
(i) the "Earnest Money" and "Interest" (as each term is hereinafter defined),
(ii) net prorations and (iii) Purchaser's title, escrow, recording and other
charges in accordance with the BILLING INSTRUCTIONS set forth below;
2. Such proof of Purchaser's authority to enter into this transaction
as may be reasonably required by Title; and
3. Any documentation as may be reasonably required by Title in order
for Title to issue the Title Policy.
ALL OF PURCHASER'S DEPOSITS ARE SUBJECT TO THE REASONABLE REVIEW AND APPROVAL
OF SELLER'S ATTORNEY.
(iii) Seller and Purchaser shall jointly deposit or cause to be
deposited with you on or before June 6, 1994, the following ("Joint
Deposits").
1. Closing Statement ("Closing Statement"), in triplicate;
2. Two (2) fully executed originals of the "Assignment and Assumption
of Leases and Contracts"; and
3. Joint Direction of Seller and Purchaser to release the "Earnest
Money" , including interest earned thereon ("Interest"), into this Escrow.
ALL JOINT DEPOSITS ARE SUBJECT TO THE REASONABLE REVIEW AND APPROVAL OF
SELLER'S ATTORNEY AND PURCHASER'S ATTORNEY.
IV. INSTRUCTIONS TO RECORD AND DISBURSE
(i) When (i) you have received all deposits as aforesaid (ii) you
have been orally advised by the respective counsel for Purchaser and Seller to
proceed with the closing of this transaction and (iii) Title is irrevocably
prepared to issue to Purchaser Title's ALTA standard coverage (as opposed to
extended coverage) State of Arizona Owner's Policy of Title Insurance ("Title
Policy") in the amount of the Purchase Price insuring Purchaser as the fee
owner of the Property, subject only to the permitted exceptions listed on
Schedule 2 attached hereto (without reference to any Schedule C exceptions
listed in the Commitment unless set forth on Schedule 2 attached hereto), you
are then authorized and directed to contemporaneously perform the following:
a. Deliver to Purchaser the Title Policy in the form required
by these Escrow Instructions;
b. Pay Seller's title, recording and escrow charges in
accordance with the BILLING INSTRUCTIONS set forth below from the funds
deposited pursuant to Purchaser's Deposit No. III(ii)l referred to above or
other funds deposited by Seller;
c. [Intentionally Deleted;]
d. Pay CB Commercial $ from the funds
deposited pursuant to Purchaser's Deposit No. III(ii)l above or other funds
deposited by Seller;
e. Pay Purchaser's title, recording and escrow charges in
accordance with the BILLING INSTRUCTIONS set forth below from the funds
deposited pursuant to Purchaser's Deposit No. III(ii)l referred to above;
f. Federal wire transfer to Seller, in accordance with
instructions delivered to you by Seller, the amount set forth in the Closing
Statement as "Net Proceeds to Seller"; provided however, to the extent you
have not received Purchaser's Deposit No. III(ii)l referred to above prior to
12:00 P.M. on June 7, 1994, unless otherwise directed by Seller or Seller's
Attorney, you are to place such funds into an investment account approved by
Seller with interest to accrue for the benefit of Purchaser, in which event,
the parties shall deposit a substitute Closing Statement in lieu of Joint
Deposit No. III(iii)l referred to above;
g. Deliver to Purchaser a check (or wire transfer if so
directed) payable to Purchaser for the balance of funds, if any, remaining
(which balance of funds shall include the Interest);
h. Record the Deed with the Pima County, Arizona, Recorder's
office;
i. Deliver to Seller's Attorney one (1) copy of the stamped
Deed after recording with the Pima County Recorder's Office, one (1) copy of
the Title Policy, one (1) Bill of Sale, one (1) FIRPTA Certificate, one (1)
Assignment of Intangible Property, one (1) Seller's Certificate, one (1)
Reaffirmation one (1) fully executed original Closing Statement and one (1)
Assignment and Assumption of Leases and Contracts; and
j. Deliver to Purchaser's Attorney the original Deed after
recording with the Pima County, Arizona, Recorder's Office, the original Title
Policy, one (1) Bill of Sale, one (1) FIRPTA Certificate, one (1) Assignment
of Warranties, Name, Permits and Miscellaneous Property one (1) Seller's
Certificate, the Termination of Management Agreement, one (1) Re-Affirmation,
one (1) original Closing Statement, the Searches, the Corporate Resolution,
the Updated Rent Roll, one (1) copy of the Pay-Off Letter, one (1) Assignment
and Assumption of Leases and Contracts, the Municipal Utility District Notice,
if applicable, the Tenant Letters and the Notice of Restrictive Covenants, if
applicable.
V. DEPOSITS - INVESTMENTS
Except as to deposits of funds for which you have received express
written direction concerning investment or other handling, the parties hereto
agree that you shall be under no duty to invest or reinvest any deposits at
anytime held by you hereunder; provided, however, nothing herein shall dimin-
ish your obligation to apply the full amount of the deposits in accordance
with the terms of these Escrow Instructions.
VI. BILLING INSTRUCTIONS
Seller shall pay out of escrow the cost of the Owner's Title Policy, tax
certificate, one-half the escrow fee and the cost of recording any documents
to clear Seller's title.
Purchaser shall pay out of escrow, one-half of the escrow fee, the cost
of recording the Deed and any costs associated with Purchaser's financing.
In the event that for any reason you are unable to pay all or any part
of the title and escrow charges at Closing, then those unpaid charges shall be
the responsibility of the party stated herein.
VII. DEFAULT
(i) In the event Title is not prepared to issue its Title Policy as
provided herein on or before June 7, 1994, you are hereby authorized and
directed to continue to comply with these Escrow Instructions until the
receipt of a written demand from any party hereto for the return of Escrow
Deposits made by said party. Upon receipt of such a demand, you are hereby
authorized and directed to return to the party making such demand the Escrow
Deposits made by such party with notice to any other party and to deliver the
remaining Escrow Deposits to the sole order of the respective depositors
thereof; provided, however, you shall not deliver the Earnest Money or
Interest until you receive either (i) a joint direction from Seller (or
Seller's Attorney) and Purchaser (or Purchaser's Attorney) regarding disposi-
tion of the Earnest Money and Interest or (ii) a final, non-appealable order,
judgment or decree addressed to Title which shall have been entered or issued
by any court and which shall determine the disposition of the Earnest Money
and Interest; and
(ii) Notice to Seller's Attorney or Purchaser's Attorney as used herein
shall mean a written notice sent to Seller's Attorney and Purchaser's Attorney
by certified mail, return receipt requested, or by hand delivery. Both
parties shall receive copies of all notices sent by you. Notices to you shall
be sent by certified mail, return receipt requested, or by hand delivery.
PURCHASER: SELLER:
EASTRIDGE ASSOCIATES
LIMITED PARTNERSHIP
CPT ARIZONA, INC. By: JMB/EASTRIDGE INVESTORS, INC.,
corporate general partner
By: By: KEITH HARRIS
Keith Harris
Vice President
ACCEPTED and AGREED to as
of this day of
1994:
FIRST AMERICAN TITLE INSURANCE COMPANY
By:
Name:
Title:
SCHEDULE 1
LEGAL DESCRIPTION
All that portion of the Southwest one-quarter of the Northwest one-quarter of
Section 9, Township 14 South, Range 15 East, Gila and Salt river Base and
Meridian, Pima County, Arizona, more particularly described as follows:
BEGINNING at a point on the South line of said Southwest one-quarter, from
which the Southwest corner bears South 89 degrees 44 minutes 29 seconds West,
(89 degrees, 43 minutes 55 seconds Record) 30.00 feet distant;
THENCE North 00 degrees 37 minutes 40 seconds West along the Easterly right-
of-way of Pantano Road, 30.00 feet Easterly of and parallel with the West line
of said Southwest one-quarter, 577.06 feet;
THENCE North 89 degrees 44 minutes 29 seconds East (89 degrees 43 minutes 55
seconds Record) and parallel with the South line of said Southwest one-
quarter, 1,081.95 feet (1,082.00 Record) to the Westerly boundary of BELCORTE,
a subdivision of Pima County, Arizona, according to the map of record in the
Pima County Recorder's Office in Book 35 of Maps and Plats, at page 22;
THENCE along the Westerly boundary of the aforementioned parcel the following
courses and distances;
THENCE South 00 degrees 28 minutes 16 seconds East, 521.96 feet;
THENCE Southwesterly along a curve concave to the Northwest, having a radius
of 25.00 feet and a central angle of 90 degrees 12 minutes 45 seconds (90
degrees 12 minutes 11 seconds Record), an arc length of 39.36 feet to a point
of tangency;
THENCE South 00 degrees 15 minutes 31 seconds East (00 degrees 16 minutes 05
seconds Record) along a radial line, 30 feet to the South line of said
Southwest one-quarter;
THENCE leaving said Westerly boundary, South 89 degrees 44 minutes 29 seconds
West (89 degrees 43 minutes 55 seconds Record) 1,055.18 (1,055.23 Record) to
the point of Beginning.
EXCEPT all coal and other minerals as reserved in the Patent from the United
States of America; AND
EXCEPT any portion lying within the following described parcel:
That portion of the Southwest Quarter of the Northwest Quarter of Section 9,
Township 14 South, Range 15 East, Gila and Salt River Base and Meridian, Pima
County, Arizona, more particularly described as follows:
COMMENCING at the Southeast corner of said Southwest one-quarter;
THENCE South 89 degrees 44 minutes 29 seconds West (89 degrees 43 minutes 55
seconds Record) 227.19 feet (227.20 feet Record);
THENCE North 00 degrees 15 minutes 31 seconds West (00 degrees 16 minutes 05
seconds Record), along a radial line, 30 feet to the TRUE POINT OF BEGINNING;
THENCE Northeasterly along a curve concave to the Northwest having a radius of
25.00 feet and a central angle of 90 degrees 12 minutes 45 seconds (90 degrees
12 minutes 11 seconds Record) an arc length of 39.36 feet to a point of
tangency;
THENCE North 00 degrees 28 minutes 16 seconds West, 521.96 feet;
THENCE South 89 degrees 44 minutes 29 seconds West (89 degrees 43 minutes 55
seconds Record) 41.00 feet;
THENCE South 00 degrees 28 minutes 16 seconds East, 15.00 feet to a point of
curvature;
THENCE Southerly along a curve concave to the East, having a radius of 113.00
feet and a central angle of 16 degrees 45 minutes 51 seconds, an arc length of
33.06 feet to a point of reverse curvature;
THENCE Southerly along a curve concave to the West, having a radius of 87.00
feet and a central angle of 16 degrees 45 minutes 51 seconds, an arc length of
25.46 feet to a point of tangency;
THENCE South 00 degrees 28 minutes 16 seconds East, 354.19 feet to a point of
curvature;
THENCE Southerly along a curve concave to the West, having a radius of 77.00
feet and a central angle of 44 degrees 55 minutes 35 seconds, an arc length of
60.38 feet to a point of reverse curvature;
THENCE Southerly along a curve concave to the East, having a radius of 103.00
feet and a central angle of 34 degrees 43 minutes 24 seconds, an arc length of
62.42 feet to a point of reverse curvature;
THENCE Southwesterly along a curve concave to the Northwest, having a radius
of 25.00 feet and a central angle of 28 degrees 18 minutes 58 seconds, an arc
length of 12.36 feet;
THENCE North 89 degrees 44 minutes 29 seconds East, along a non-tangent line,
30.00 feet Northerly of and parallel with the South line of said Southwest
Quarter, 63.38 feet to the TRUE POINT OF BEGINNING;
FURTHER EXCEPTING that portion conveyed to the City of Tucson, a municipal
corporation by Deed recorded in Docket 7213, Page 341.
SCHEDULE 2
Permitted Title Exceptions
[Permitted Exceptions to be attached at Closing
in accordance with paragraph 7 of the Agreement]
EXHIBIT H
, 1994
Apartment #
Eastridge Apartments
Tucson, Arizona
Re: Notice of Change of Ownership of Eastridge Apartments
Dear
You are hereby notified as follows:
1. As of the date hereof, Eastridge Associates Limited Partnership
(the "Former Owner"), has transferred, sold, assigned, and conveyed all of the
Former Owner's interest in and to the Eastridge Apartments (the "Property"),
to CPT Arizona, Inc., a Delaware corporation (the "New Owner").
2. The New Owner (i) acknowledges receipt of and (ii) is, as of the
date hereof, responsible for your tenants' security deposit and/or pet deposit
in the aggregate amount of $ with respect to your leased premises at
the Property.
3. Future rental payment with respect to your leased premises at the
Property should be made to the New Owner as follows: by delivering to
CPT Arizona, Inc. a check or money order payable to the order of New Owner at
the following address .
Yours truly,
FORMER OWNER
EASTRIDGE ASSOCIATES LIMITED PARTNERSHIP,
a Delaware partnership
By: JMB/EASTRIDGE INVESTORS, INC.,
a Delaware corporation, corporate
general partner
By: KEITH HARRIS
Keith Harris
Vice President
EXHIBIT I
PERMITTED EXCEPTIONS
[TO BE ATTACHED AFTER THE EXPIRATION OF THE INSPECTION PERIOD]
EXHIBIT J
SURVEYOR'S CERTIFICATION
The undersigned hereby certifies to CPT ARIZONA, INC. ("Purchaser"),
FIRST AMERICAN TITLE INSURANCE COMPANY, as agent for Commonwealth Land Title
Insurance Company ("Title Company") and that: To
his best knowledge and belief: (i) the survey dated , 19 ,
and updated May , 1994, and prepared by the undersigned (the "Survey"), is
an accurate survey of the premises shown thereon and described more fully
hereafter (the "Premises"); (ii) this Survey is based on a diligent surface
inspection of the Premises, and it shows all matters which were apparent from
the surface inspection of the Premises including, without limitation, the
location of all shorelines, streams, ponds, cemeteries, burial grounds, roads,
trails, paths, walks, and other physical conditions which are either existing
on the Premises or presently being constructed on the Premises; (iii) this
Survey shows the location of all rights-of-way, easements, building lines,
set-backs, side-yards requirements, platted boundary lines, parking areas and
other conditions which appear in a title report by the Title Company No.
dated 1993, which were apparent from the
surface inspection of the Premises or which are imposed by any applicable law
or ordinance; (iv) except as shown hereon, there are no buildings, other
structures, or improvements of any kind located on the Premises; (v) there are
no encroachments of the property lines of the Premises upon any adjoining
property lines except as may be shown and noted on this Survey; (vi) the
Premises has adequate ingress and egress to , a publicly
dedicated thoroughfare; (vii) the Premises has the following U.S. Department
of Housing and Urban Development Flood Plan Classification: ;
and (viii) this Survey is an "ALTA/ACSM Land Title Survey".
Surveyor
Date: May , 1994 By:
[SEAL] Name:
Title:
