January 23, 1995
Securities and Exchange Commission
450 Fifth Street, N.W.
Judiciary Plaza
Washington, D.C. 20549
Re: CARLYLE REAL ESTATE LIMITED PARTNERSHIP - XIV
Commission File No. 0-15962
Form 8-K
Gentlemen:
Transmitted, for the above-captioned registrant, is the electronically filed
executed copy of registrant's current report on Form 8K dated January 23,
1995.
Thank you.
Very truly yours,
CARLYLE REAL ESTATE LIMITED PARTNERSHIP - XIV
BY: JMB Realty Corporation
(Corporate General Partner)
By: C. SCOTT NELSON
________________________________
C. Scott Nelson, Vice President
Director of Partnership
Financial Reporting
CSN:sf
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): January 10, 1995
CARLYLE REAL ESTATE LIMITED PARTNERSHIP - XIV
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(Exact name of registrant as specified in its charter)
Illinois 0-15962 36-3256340
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(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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BRITTANY DOWNS APARTMENTS PHASE I & II
Thornton, Colorado
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ITEM 2. ACQUISITION OR DISPOSITION OF ASSETS. On January 10, 1995, Carlyle
Real Estate Limited Partnership-XIV (the "Partnership") sold the land and
related improvements known as the Brittany Downs Apartments Phase I and II
(the "Property"), a 464-unit apartment complex located in Thornton, Adams
County (Denver), Colorado. The Purchaser, Graoch Associates #19 Limited
Partnership, a Washington limited partnership, and Graoch Associates #20
Limited Partnership, a Washington limited partnership, is not affiliated with
the Partnership or its General Partners and the sale price was determined by
arm's-length negotiations.
The sale price of the land and improvements was $18,380,000 (before selling
costs and prorations), of which $2,390,974 was received in cash at closing and
$14,340,000 represented the purchaser's assumption of the underlying debt (net
of a payoff discount granted by the underlying lender for Brittany Downs
Apartments Phase II). The sale resulted in a gain of approximately $6,900,000
and $9,000,000 for financial reporting purposes and federal income tax
reporting purposes in 1995, respectively. In addition, as a result of the
payoff discount granted by the underlying lender for Brittany Downs Apartments
Phase II, the Partnership will recognize an additional gain on forgiveness of
indebtedness of $2,500,000 and $1,060,000 for financial reporting purposes and
federal income tax reporting purposes in 1995, respectively. Occupancy at the
Property was approximately 95% at the date of the sale.
The Partnership Agreement provides that subject to certain conditions, the
General Partners shall receive as a distribution from the sale of a real
property by the Partnership up to 3% of the selling price, and that the
remaining proceeds (after expenses and retained working capital) be
distributed 85% to the Limited Partners and 15% to the General Partners.
However, prior to such distributions being made, the Limited Partners are
entitled to receive 99% of net sale or refinancing proceeds and the General
Partners shall receive 1% until the Limited Partners have received (i) cash
distributions of sale or refinancing proceeds in an amount equal to the
Limited Partners' aggregate initial capital investment in the Partnership and
(ii) cumulative cash distributions from the Partnership's operations which,
when combined with the sale or refinancing proceeds previously distributed,
equal a 6% annual return on the Limited Partners' average adjusted capital
investment for each year (their initial capital investment reduced by sale or
refinancing proceeds previously distributed) commencing with the third fiscal
quarter of 1985. Since the Limited Partners have not yet received the amounts
stipulated in items (i) and (ii) above, the General Partners have deferred
their share of any distributions of proceeds from this sale.
ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS.
(a) Financial Statements. Not applicable.
(b) Pro forma financial information - Narrative.
As a result of the sale of the Property, beyond January 10,
1995, there will be no further rental income, property operating expenses,
depreciation or mortgage interest expense recorded for the Property in the
financial statements of the Partnership, which for the Partnership's most
recent fiscal year (the year ended December 31, 1993) were approximately
$2,830,000, $1,250,000, $429,000 and $1,818,000, respectively. Rental income,
property operating expenses, depreciation and mortgage interest expense for
the Property were approximately $751,000, $282,000, $107,000 and $270,000,
respectively, for the three months ended September 30, 1994, and $2,209,000,
$895,000, $323,000 and $787,000, respectively, for the nine months ended
September 30, 1994. Also, as a result of the sale of the Property, there are
no further assets and liabilities related to the Property, which at September
30, 1994 consisted of land, buildings and improvements and deferred expenses
(net of accumulated depreciation and amortization) of approximately
$11,440,000; cash and other current assets of approximately $604,000; current
portion of long-term debt (including accrued interest) of approximately
$9,781,000; long-term debt (less current portion) of approximately $6,980,000
and other current liabilities of approximately $274,000. The remaining
operations of the Partnership will consist primarily of the operations of the
Partnership's owned investment properties, consisting of one apartment
building, one shopping center, and one office building and joint ventures
consisting of seven office buildings.
(c) Exhibits.
1. Purchase Agreement between Carlyle Real Estate Partnership-
XIV and Graoch Associates #20 Limited Partnership dated
November 16, 1994.
2. First Amendment to Purchase Agreement for Brittany Downs
Apartments dated December 22, 1994 between Carlyle/Brittany
Downs Associates and Graoch Associates #19 Limited Partnership
and Graoch Associates #20 Limited Partnership.
3. Letter Agreement dated April 13, 1994 between
Carlyle/Brittany Associates and BEI Management, Inc.
(Trustee for RTC Mortgage Trust 1992-N1).
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 - XIV
BY: JMB Realty Corporation
(Corporate General Partner)
By: ________________________________
C. Scott Nelson, Vice President
Director of Partnership
Financial Reporting
Dated: January 23, 1995
PURCHASE AGREEMENT
(Brittany Downs Apartments; Thornton, Colorado)
THIS AGREEMENT is made and entered into as of the day of
November, 1994, by and between CARLYLE/BRITTANY DOWNS ASSOCIATES, an Illinois
general partnership (hereinafter called "Seller"), and GRAOCH ASSOCIATES #20
LIMITED PARTNERSHIP, a Washington limited partnership (hereinafter called
"Buyer").
R E C I T A L S
A. Seller is the owner of that certain real property located at 8829
and 8849 Pearl Street in the City of Thornton, County of Adams, State of
Colorado, consisting primarily of a two-phased apartment complex with 232
units in each phase (the "Premises") sometimes known as "Brittany Downs
Apartments".
B. Buyer desires to purchase such apartments on the terms and
conditions hereinafter documented.
NOW, THEREFORE, in consideration of the mutual undertakings of the
parties hereto, it is hereby agreed as follows:
1. Purchase and Sale. Seller shall sell to Buyer, and Buyer shall
purchase from Seller, upon the terms and conditions hereinafter set forth, the
land (the "Land") described in Exhibit "A-1" (the "Phase I Land") and in
Exhibit "A-2" (the "Phase II Land"), which exhibits are attached hereto and
made a part hereof, together with all right, title and interest of Seller in
and to all improvements and structures ("Improvements") located upon the Land,
and all right, title and interest of Seller, to the extent assignable, in and
to the following:
A. All plans, specifications, designs, blueprints and as-built
drawings respecting the construction of the Improvements (the "Plans and
Specifications");
B. All certificates of occupancy, licenses, permits, approvals,
dedications, plats, maps and other entitlements, authorizations or approvals
of any governmental agency or authority to the Property (the "Licenses and
Permits");
C. All third-party contracts and agreements respecting the operation,
ownership, use or maintenance of the Property, including without limitation:
all non-tenant leases or agreements involving equipment, furniture, fixtures,
or other personal property; all service contracts involving utilities,
landscaping, construction, parking or other services respecting the use,
operation or maintenance of the Property; all construction agreements,
warranties, guarantees, bonds, or other contracts respecting to the
construction or maintenance of the Improvements; together with all
supplements, amendments, or modifications to any one or more of the foregoing
(the "Contracts");
D. The name of the Property and all trademarks, trade names, trade
styles and service marks related to such name; any and all development rights
and other intangible rights, titles, interests, privileges and appurtenances
owned by Seller and used in connection with the Property and its operation;
all licenses, consents, easements, rights of way and approvals from private
parties relating to the use of utilities, vehicular or pedestrian ingress and
egress to the Property and the use, operation and maintenance of the Property
as intended; and all advertising materials, catalogues, customer lists, and
telephone numbers relating to or identified with the Property; together with
all goodwill related to any one or more of the foregoing; and
E. All tangible personal property (including all personal property
listed on Exhibit "B" attached hereto and made a part hereof) now or hereafter
owned or held by Seller and used in connection with the Property, including,
without limitation, and all furniture, fixtures, machinery, appliances,
equipment, supplies and building materials located on the Property on the date
of this Agreement (and replacements therefore and additions thereto made prior
to the Closing Date), other than personal property owned by tenants of the
Property, or personal property leased by Seller; provided, however, the
foregoing does not include any computer equipment, computer programs or
related software of Seller.
F. All leases, rental agreements or other occupancy arrangements in
any way relating to the residential occupancy or use of the Land and/or the
Improvements (the "Leases").
The Land, together with all of the foregoing items, are herein collectively
called the "Property").
2. Purchase Price. The purchase price (the "Purchase Price") for the
Property shall be the sum of $18,380,000.
3. Payment of Purchase Price. The Purchase Price shall be paid to
Seller by Buyer as follows:
A. Escrow Deposits. Within three (3) business days of the date on
which this Agreement shall have been fully executed by Buyer and Seller, Buyer
shall deliver an initial escrow deposit in the amount of $250,000 (the
"Initial Escrow Deposit") to Stewart Title Insurance Company at its offices at
50 South Steele Street, Suite 600, Denver, Colorado 80209 (which company, in
its capacity as escrow holder hereunder is herein called the "Escrow Holder").
In addition, within two (2) business days after the date on which the
conditions specified in paragraph 4C have been satisfied, Buyer shall deliver
an additional escrow deposit in the amount of $250,000 (the "Additional Escrow
Deposit") to Escrow Holder. Each escrow deposit made hereunder shall be made
by a bank or cashier's check drawn on a major national money center banking
institution reasonably acceptable to Seller (or by other delivery of good
funds). The Initial Deposit and the Additional Escrow Deposit, if made,
together with all interest earned on the same, are herein collectively called
the "Escrow Deposit". At all times in which the Escrow Deposit is being held
by the Escrow Holder, the Escrow Deposit shall be invested by Escrow Holder in
the following investments ("Approved Investments"): (i) United States
Treasury obligations, (ii) United States Treasury-backed repurchase agreements
issued by a banking institution reasonably acceptable to Seller and Buyer, or
(iii) such other manner as may be reasonably agreed to by Seller and Buyer.
The Escrow Deposit held by Escrow Holder as a deposit against the Purchase
Price in accordance with the terms and provisions of this Agreement and shall
be disposed of by Escrow Holder only as provided in this Agreement.
B. Phase I Bond Financing. A portion of the Purchase Price shall be
payable by Buyer assuming the obligations of Seller under the "Phase I Bond
Documents" (as defined in Exhibit "C-1" attached hereto and made apart hereof)
pursuant to the "Phase I Bond Assignment and Assumption Agreement" (as
hereinafter defined) relating to Adams County, Colorado Multifamily Housing
Revenue Refunding Bonds, Series 1988A (Columbia Banking Federal Savings and
Loan Association Collateralized Letter of Credit -- Brittany Downs Project)
(the "Phase I Bonds"), such portion of the Purchase Price so payable being an
amount equal to the outstanding principal balance of the Phase I Bonds in the
amount of $6,980,000 (the "Outstanding Phase I Bond Amount").
C. Phase II Bond Financing. A portion of the Purchase Price shall be
payable by Buyer assuming the obligations of Seller under the "Phase II Bond
Documents" (as defined in Exhibit "C-2" attached hereto and made a part
hereof) pursuant to the "Phase II Bond Assignment and Assumption Agreement"
(as hereinafter defined) relating to Adams County, Colorado Multifamily
Housing Revenue Refunding Bonds, Series 1987A (Columbia Banking Federal
Savings and Loan Association Collateralized Letter of Credit -- Brittany
Station Project) and Multifamily Housing Revenue Refunding Bonds, Series 1987B
(Columbia Banking Federal Savings and Loan Association Collateralized Letter
of Credit -- Brittany Station Project) (collectively, the "Phase II Bonds"),
such portion of the Purchase Price so payable being an amount equal to the
outstanding principal balance of the Phase II Bonds in the amount of
$7,360,000 (the "Outstanding Phase II Bond Amount"). As more particularly set
forth hereinafter, Buyer shall also purchase, or cause a designee to purchase,
the Phase II Bond Documents.
D. Closing Payment. The $4,040,000 balance of the Purchase Price
(i.e., the $18,380,000 Purchase Price minus the $6,980,000 Outstanding Phase I
Bond Amount and the $7,360,000 Phase II Bond Amount), as adjusted by the
application of the Escrow Deposit and by the prorations and credits specified
herein, shall be paid in cash on the "Closing Date", as hereinafter defined
(the amount to be paid under this subparagraph D being herein called the
"Closing Payment").
4. Conditions Precedent. The following provisions set forth in this
paragraph 4 are conditions precedent to the obligations of Seller to sell
and/or Buyer to purchase the Property hereunder, as more particularly set
forth in this Agreement. If any of the following conditions are not
satisfied, then the party in whose favor such condition runs shall be entitled
to terminate this Agreement and, except for those obligations which
specifically survive termination, the parties shall thereafter have no further
obligations hereunder. In that connection, unless such failure of conditions
results from Buyer's default such that Seller shall be entitled to retain the
Escrow Deposit in accordance with paragraph 9 hereof, the Escrow Deposit shall
be returned to Buyer in connection with such termination.
A. Title Matters.
(1) Title Report. Seller has delivered a copy of a Commitment for
Title Insurance Order No. 90061875 BK, 1st Revision ("Title Commitment")
covering the Property from Stewart Title Guaranty Company (which company, in
its capacity as title insurer hereunder, is herein called the "Title
Company"), together with copies of the documents noted as exceptions thereto.
Seller has delivered to Buyer copies of those certain surveys of the Property,
prepared by EHMG Engineering ("Original Surveys"). Seller has ordered at
Seller's sole expense (and upon receipt shall deliver to Buyer) a new updated
survey from Burdick Engineering ("Updated Survey"). The Updated Survey shall
be an ALTA survey reasonably satisfactory to Buyer (and the Title Company) so
as to permit the issuance of the "Owner's Policy" (as hereinafter defined)
without exception for survey matters (other than those shown on the Original
Survey or otherwise approved by Buyer as hereinafter set forth) and shall be
certified to Buyer and Title Company. Buyer shall have until the date which
is five (5) business days from receipt of the Updated Survey (the "Survey
Review Period"), within which to notify Seller in writing of its disapproval,
if any, of any matters disclosed on the Updated Survey which were not
disclosed on the Original Survey. If Buyer shall fail to deliver such written
notice of disapproval on or before the end of the Survey Review Period, Buyer
shall be deemed to have approved the matters disclosed on the Updated Survey.
Approval by Buyer of any additional exceptions to title disclosed after the
date of the Title Commitment or survey matters disclosed after receipt of the
Updated Survey shall be a condition precedent to Buyer's obligation to
purchase the Property (such approval not to be unreasonably withheld). Unless
Buyer gives written notice that it disapproves any such additional exceptions
to title or survey matters, stating the exceptions so disapproved, on or
before the sooner to occur of five (5) business days after receipt of written
notice thereof or the Closing Date, Buyer shall be deemed to have approved
said exceptions. If, for any reason, on or before the Closing Date Seller
does not cause such exceptions to title or survey matters which Buyer
disapproves (to the extent Buyer is permitted hereunder to so disapprove) to
be removed at no cost or expense to Buyer (Seller having the right but not the
obligation to do so), the obligation of Seller to sell, and Buyer to buy, the
Property as herein provided shall terminate (and, except for those obligations
which specifically survive termination, Seller and Buyer shall have no further
obligations in connection herewith). Notwithstanding anything to the contrary
contained herein, Seller hereby agrees to remove from the Owner's Policy or to
cause the Title Company to provide appropriate affirmative insurance over, any
mechanic's liens resulting from work incurred on behalf of Seller and any
mortgages or deeds of trust against the Property created by Seller (other than
those included in the Phase I Bond Documents and the Phase II Bond Documents).
In addition, except as may be required by law by existing agreements
respecting the Property or as otherwise provided herein, Seller shall not
execute any easements, covenants, conditions or restrictions or other
documents which would affect title to the Property and be binding after the
Closing Date without Buyer's consent. Buyer shall have the option to waive
the condition precedent set forth in this paragraph 4A(1) by written notice to
Seller. In the event of such waiver, such condition shall be deemed
satisfied.
(2) Exceptions to Title. Buyer shall be obligated to accept title to
the Property, subject only to the following exceptions to title (the
"Permitted Exceptions"):
(a) Real estate taxes and assessments not yet due and payable;
(b) The Phase I Bond Documents and the Phase II Bond Documents;
(c) The printed exceptions which appear in the standard ALTA form
owner's policy of title insurance with extended coverage issued by Title
Company; and
(d) Exceptions 6 through 26 on Schedule B, Section 2 of the Title
Commitment, together with such additional exceptions to title as may be
approved by Buyer pursuant to the provisions of subparagraph A(1) above.
Conclusive evidence of the availability of such title shall be the willingness
of Title Company to issue to Buyer on the Closing Date a standard Colorado
ALTA form owner's title insurance policy with extended coverage ("Owner's
Policy"), in the face amount of the Purchase Price, which policy shall show
(i) title to the Property to be vested of record in Buyer, (ii) the Permitted
Exceptions to be the only exceptions to title, and (iii) include endorsement
nos. 100 and 100.20 (with respect to all Schedule B title exceptions).
B. Completed Due Diligence.
(1) Price Reflective of Reviews. Buyer has completed all of Buyer's
due diligence examinations, reviews and inspections of all matters pertaining
to the purchase of the Property, including all leases, service contracts,
survey and title matters (except as specifically set forth in paragraph 4A(1)
above), and all physical, environmental and compliance matters and conditions
respecting the Property. Buyer acknowledges that Buyer and Seller have
discussed the results of Buyer's due diligence examinations, reviews and
inspections and that the Purchase Price has been adjusted to appropriately
take such due diligence matters into account to Buyer's satisfaction.
(2) Conduct of Reviews. Buyer hereby represents and warrants to
Seller that Buyer at all times conducted its due diligence review, inspections
and examinations in a manner so as to not cause damage, loss, cost or expense
to Seller or the Property and so as to not interfere with or disturb any
tenant at the Property, and Buyer will indemnify, defend, and hold Seller and
the Property harmless from and against any such damage, loss, cost or expense
(the foregoing obligation surviving any termination of this Agreement). Buyer
further represents and warrants to Seller that Buyer did not make any
intrusive physical testing (environmental, structural or otherwise) at the
Property (such as soil borings or the like) without Seller's prior written
consent (and in all events promptly returned the Property to its prior
condition and repair thereafter). If the transactions hereunder shall fail to
close, Buyer shall promptly deliver to Seller true, accurate and complete
copies of any written reports relating to the Property prepared for or on
behalf of Buyer by any third party (other than those respecting economic
performance or issues of management) and shall return all documents and other
materials furnished by Seller hereunder. Buyer shall keep all information or
data received or discovered in connection with any of the inspections, reviews
or examinations strictly confidential.
C. Bond Financing Matters.
(1) Acquisition of Phase II Bond Documents. The acquisition of the
Phase II Bond Documents by Buyer or its designee on the Closing Date in the
manner contemplated in this Agreement shall be a condition to the obligations
of Seller to sell, and Buyer to purchase, the Property hereunder. If such
acquisition shall not occur in the manner contemplated herein, then either
Buyer or Seller shall have the right to terminate this Agreement. Without
limitation thereon, Seller's agreement to enter into transactions hereunder is
based on its agreement with BEI Management, Inc., which, to Seller's
knowledge, acts as the servicing agent for Bank or America National Trust and
Savings Association ("Bank of America") as Trustee for RTC Mortgage Trust
1992-N1 ("RTC Trust") with respect to both the Phase II Bond Documents and the
existing second deed of trust covering the Phase II Land), and which agreed to
accept a negotiated payoff of such second deed of trust so long as the Phase
II Bond Documents are sold as contemplated herein. Seller shall use good
faith reasonable efforts, as hereinafter contemplated, to cause the Phase II
Bond Documents to be transferred as hereinafter provided. In that connection,
but subject to satisfaction of all of the conditions specified herein, Buyer
agrees to purchase, or cause its designee to purchase, the Phase II Bond
Documents on the Closing Date for a purchase price equal to the $7,360,000
balance thereof.
(2) Consent to Transactions. Receipt of the written consent to the
purchase and sale of the Property, Buyer's assumption of the Phase I Bond
Documents and the Phase II Bond Documents and the other transactions
contemplated hereunder from Adams County, all trustees under the Phase I Bond
Documents and the Phase II Bond Documents, the Resolution Trust Corporation
(as to the Phase I Bonds), RTC Trust (as to the Phase II Bonds) or other
successors to the credit enhancer for, or issuers of any letter of credit
securing, the Phase I Bond Documents or the Phase II Bond Documents, and all
other parties under the Phase I Bond Documents and the Phase II Bond Documents
whose consent to the transactions contemplated herein is lawfully required
(the "Bond Participants") shall be a condition precedent to Seller's
obligation to sell, and Buyer's obligation to purchase, the Property (such
consent including without limitation, the release of Seller from all
liabilities and obligations under such documents); provided, however, none of
the foregoing consents shall be conditioned upon (i) any substantive or
financial change to any of the applicable bond documents or (ii) the payment
of any fees or other costs in excess of $10,000 for each phase (i.e., $20,000
in the aggregate). Such consents shall include, among other matters
reasonably required by the parties hereto, the following:
(a) Confirmation that all interest payments due on the Phase I Bonds
and the Phase II Bonds as of the Closing Date have been or on the Closing Date
will be paid (or, if any such amounts are unpaid, such consents shall disclose
all such amounts unpaid);
(b) Confirmation that the principal balance of the Phase I Bonds is
$6,980,000, that the principal balance of the Phase II Bonds is $7,360,000,
and that all principal payments [(including all "sinking fund" payments)] due
under the Phase I Bonds and the Phase II Bonds have been or on the Closing
Date will be paid (or, if any such amounts are unpaid, such consents shall
disclose all such amounts unpaid);
(c) Confirmation that all other fees, charges, expenses or other
obligations under the bond documents have been or on the Closing Date will be
paid (or, if any such sums are unpaid, such consents shall disclose all such
amounts unpaid); provided, however, any of the foregoing amounts which are or
have been in default under the Phase II Bond Documents may be waived by the
RTC Trust in its consent.
If the consents to be obtained hereunder shall indicate that, except for
any amounts required to be prorated hereunder or otherwise specifically
provided to be paid by a party hereunder, any sums due under the applicable
bond documents for periods prior to the Closing Date will remain due after the
Closing Date and Seller does not agree to pay such amounts on or before such
Closing Date (Seller having the right but no obligation to pay for such
amounts), then Buyer shall have the right to terminate this Agreement (but
Seller shall have no obligation to pay any such amounts except as aforesaid).
Buyer shall pay any transfer, assumption or other similar fees and costs
(including reasonable attorneys' fees) imposed by any of the Bond Participants
from whom consent is required to the transactions contemplated herein as
aforesaid, up to a maximum of $10,000 for each phase (i.e., $20,000 in the
aggregate). Buyer shall reasonably cooperate with Seller in connection with
such consent and related transactions (and shall promptly deliver such
information, including financial information, respecting Buyer as any of such
parties may request). Seller's sole obligation in connection with the matters
herein contemplated shall be to utilize good faith reasonable efforts to
assist Buyer in obtaining all consents to the transactions contemplated hereby
which may be required under the Phase I Bond Documents or the Phase II Bond
Documents (such reasonable efforts obligation not including any obligation to
institute legal proceedings or to expend any monies therefor). Buyer and
Seller shall reasonably cooperate in connection with seeking the consents
contemplated herein in a prompt manner (and each party shall promptly, and in
good faith, notify or otherwise confirm to the other party the satisfaction of
the conditions set forth in this paragraph 4C promptly upon such
satisfaction). If all consents to the transactions contemplated hereby
required under the Phase I Bond Documents or the Phase II Bond Documents are
not obtained by Buyer prior to the expiration of the Closing Date, the
obligation of Seller to sell, and Buyer to purchase, the Property shall
terminate.
(3) Phase II Bond Transfers. As a condition to Buyer's obligations
hereunder, the following shall occur on or before the Closing Date (at no
material cost to Buyer, except as otherwise set forth herein) and with no
substantive financial change in any terms of any Phase II Bond Documents):
(a) Bank One Denver, N.A. (formerly known as Denver National Bank, as
bond trustee (the "Phase II Trustee") shall register the transfer of the Phase
II Bonds, which shall be registered in the name of a bondholder designated in
writing by Buyer (in its sole discretion) and such transferred Phase II Bonds
shall be delivered into the custody of such designated Phase II Bond holder or
its designated representative or custodian; and
(b) Buyer shall have received appropriate documentation reasonably
satisfactory to Buyer to evidence the assignment or transfer to a person or
entity designated by Buyer (in its sole discretion) of all rights, interests,
security instruments and other entitlements originally delivered or granted to
Columbia Banking Federal Savings and Loan Association, predecessor to Columbia
Banking Federal Savings Association ("Columbia") under the terms of any of the
Phase II Bond Documents, including without limitation the assignment of (i)
that certain Deed of Trust from The 92nd Company for the benefit of Columbia,
recorded June 25, 1987 in Book 3334, at Page 786, as amended on December 18,
1987 and thereafter assigned to the Bank of America, as Trustee of the RTC
Trust, (ii) that certain Collateral Mortgage Note dated June 1, 1987 executed
for the benefit of Columbia, and an Allonge to such note dated December 18,
1987 (and the delivery of the original of such Note and Allonge), and (iii)
that certain Reimbursement Agreement dated as of June 1, 1987, as Amended and
Restated on December 18, 1987. Such documentation shall include, as a
condition to the transactions hereunder, evidence of the proper transfer or
succession of Columbia's right, title and interest in the Phase II Bond
Documents, from Columbia to RTC Trust or Bank of America, as Trustee of the
RTC Trust, as the current transferee or successor in interest thereto, and
evidence either that BEI Management, Inc. has no separate interest in the
Phase II Bond Documents or that BEI Management, Inc. releases any such
interest, it being understood that satisfactory evidence that the parties
assigning or transferring such documents possess the sole right, title and
interest therein (and no other party has any interest therein) is a material
condition to Buyer's obligations hereunder. Seller and Buyer shall reasonably
cooperate to seek to obtain evidence that the RTC Trust is the transferee or
successor to Columbia's right, title and interest in the Phase II Bond
Documents from Bank of America and BEI Management, Inc. Buyer shall have
until November 30, 1994 within which to satisfy itself that the documentation
necessary to satisfy this paragraph 4C(3)(b) will be available. If for any
reason Buyer fails to give written notice to Seller on or before November 30,
1994, terminating this Agreement by reason of the failure of receipt of
evidence of ownership of the Phase II Bond Documents, Buyer shall be deemed to
have waived its rights to terminate this Agreement as a result of any
disapproval by Buyer of the evidence described in this paragraph 4C(3)(b).
D. Performance by Seller; No Material Adverse Change. The
performance and observance, in all material respects, by Seller of all
covenants and agreements of this Agreement to be performed or observed by
Seller prior to or on the Closing Date shall be a condition precedent to
Buyer's obligation to purchase the Property. In addition, in the event that
the "Seller Closing Certificate" (as hereinafter defined) shall disclose any
changes in any material respect in the representations and warranties of
Seller contained in paragraph 7A below which are not otherwise permitted or
contemplated by the terms of this Agreement, then Buyer shall have the right
to terminate this Agreement. Buyer shall have the option to waive the
condition precedent set forth in this paragraph 4D by written notice to
Seller. In the event of such waiver, such condition shall be deemed
satisfied.
E. Performance by Buyer; No Material Adverse Change. The performance
and observance, in all material respects, by Buyer of all covenants and
agreements of this Agreement to be performed or observed by it prior to or on
the Closing Date shall be a condition precedent to Seller's obligation to sell
the Property. In addition, in the event that the "Buyer Closing Certificate"
(as hereinafter defined) shall disclose any changes in any material respect in
the representations and warranties of Buyer contained in paragraph 7B below
which are not permitted or contemplated by the terms of this Agreement, then
Seller shall have the right to terminate this Agreement. Seller shall have
the option to waive the condition precedent set forth in this paragraph 4E by
written notice to Buyer. In the event of such waiver, such condition shall be
deemed satisfied.
5. Closing Procedure. The sale and purchase herein provided shall be
consummated at a closing conference ("Closing Conference"), which shall be
held on the Closing Date at the offices of Buyer's local counsel, Brownsteen
Hyatt Farber & Strickland, located at 410 Seventeenth Street, Twenty-Second
Floor, Denver, Colorado 80202-4437. As used herein, "Closing Date" means the
date which is fifteen (15) days after the date on which the bond conditions
specified in paragraph 4C hereof shall have been satisfied; provided, however,
in no event shall such Closing Date occur prior to November 30, 1994 or after
December 22, 1994.
A. Escrow. On or before the Closing Date, the parties shall deliver
to Title Company the following: (1) by Seller, a duly executed and
acknowledged original special warranty deed ("Deed") in the form of Exhibit
"D" attached hereto and made a part hereof, and (2) by Buyer, the Closing
Payment in immediately available federal funds. Such deliveries shall be made
pursuant to escrow instructions ("Escrow Instructions") to be executed among
Buyer, Seller and Title Company in form reasonably acceptable to such parties
in order to effectuate the intent hereof. The conditions to the closing of
such escrow shall include the Title Company's receipt of the Deed, the Closing
Payment and a notice from each of Buyer and Seller authorizing Title Company
to close the transactions as contemplated herein (each of Buyer and Seller
being obligated to deliver such authorization notice at the Closing Conference
as soon as it is reasonably satisfied that the other party is in a position to
deliver the items to be delivered by such other party under subparagraph B
below).
B. Delivery to Parties. Upon the satisfaction of the conditions set
forth in the Escrow Instructions, then (x) the Deed shall be delivered to
Buyer by Title Company's depositing the same for recordation, (y) the Closing
Payment (and the Escrow Deposit) shall be delivered by Title Company to Seller
and (z) at the Closing Conference, the following items shall be delivered:
(1) Seller Deliveries. Seller shall deliver to Buyer the following:
(a) A duly executed and acknowledged bill of sale, assignment and
assumption agreement ("Assignment and Assumption Agreement") in the form of
Exhibit "E" attached hereto and made a part hereof;
(b) Appropriate documentation to evidence the assignment, assumption,
acquisition and release transactions respecting the Phase I Bond Documents and
the Phase II Bond Documents as may be reasonably required in order to
effectuate such transactions as contemplated in this Agreement, including
without limitation, to the extent obtained, the assignment documentation
referenced in paragraph 4C(2) above, and an assignment and assumption
agreement regarding the Phase I Bonds (the "Phase I Bonds Assignment and
Assumption Agreement"), and an assignment and assumption agreement regarding
the Phase II Bonds (the "Phase II Bonds Assignment and Assumption Agreement"),
in the forms attached hereto as Exhibits "F-1" and "F-2", respectively;
(c) A certificate of Seller ("Seller Closing Certificate") updating
the representations and warranties contained in paragraph 7A hereof to the
Closing Date and noting any changes thereto;
(d) Duly executed and acknowledged certificates regarding the "non-
foreign" status of Seller;
(e) Evidence reasonably satisfactory to Buyer and Title Company
respecting the due organization of Seller and the due authorization and
execution of this Agreement and the documents required to be delivered
hereunder; and
(f) Such additional documents as may be reasonably required by Buyer
and Title Company in order to consummate the transactions hereunder (provided
the same do not materially increase the costs to, or liability or obligations
of, Seller in a manner not otherwise provided for herein).
(2) Buyer Deliveries. Buyer shall deliver to Seller the following:
(a) A duly executed and acknowledged Assignment and Assumption
Agreement;
(b) Appropriate documentation to evidence the assignment, assumption,
acquisition and release transactions respecting the Phase I Bond Documents and
the Phase II Bond Documents as may be reasonably required in order to
effectuate such transactions as contemplated in this Agreement, including,
without limitation, to the extent obtained, the assignment documentation
referenced in paragraph 4C(2), and the Phase I Bonds Assignment and Assumption
Agreement, and the Phase II Bonds Assignment and Assumption Agreement;
(c) A certificate of Buyer ("Buyer Closing Certificate") updating the
representations and warranties contained in paragraph 7B hereof to the Closing
Date and noting any changes thereto;
(d) Evidence reasonably satisfactory to Seller and Title Company
respecting the due organization of Buyer and the due authorization and
execution of this Agreement and the documents required to be delivered
hereunder; and
(e) Such additional documents as may be reasonably required by Seller
and Title Company in or to consummate the transactions hereunder (provided the
same do not materially increase the costs to, or liability or obligations of,
Buyer in a manner not otherwise provided for herein).
C. Closing Costs. Seller shall pay (i) the title insurance premium
for the Owner's Policy at a rate not in excess of standard issue rates and
only to the extent attributable to standard Colorado ALTA owner's coverage
with extended coverage and one-half of the premium for endorsement nos. 100
and 100.20 (Buyer being obligated to pay any costs associated with any other
special coverage or endorsements); and (ii) the costs to obtain the Updated
Survey (Buyer being obligated to pay any additional costs associated with any
survey requirements of Buyer). Buyer shall pay (i) all documentary, transfer,
conveyance, intangible, sales and use taxes, if any, payable in connection
with the transfers contemplated in this Agreement, (ii) one-half of the
premium for endorsement nos. 100 and 100.20, and (iii) all fees, costs or
expenses in connection with Buyer's due diligence reviews hereunder. Seller
and Buyer shall each pay one-half of the escrow fees of Escrow Holder. Seller
and Buyer shall pay their respective shares of prorations as hereinafter
provided.
D. Prorations.
(1) Items to be Prorated. The following shall be prorated between
Seller and Buyer as of the Closing Date:
(a) All real estate and personal property taxes and assessments on the
Property for the current year. In no event shall Seller be charged with or be
responsible for any increase in the taxes on the Property resulting from the
sale of the Property or from any improvements made or leases entered into on
or after the Closing Date. In the event that any assessments respecting the
Property are payable in installments, then the installments for the current
applicable period shall be prorated (with Buyer assuming the obligation to pay
installments due after the Closing Date).
(b) All fixed and additional rentals under the tenant leases, security
deposits and other tenant charges. Seller shall deliver or provide a credit
in an amount equal to all security deposits made under the tenant leases (to
the extent not applied or forfeited prior to the Closing Date) to Buyer on the
Closing Date. Rents which are delinquent as of the Closing Date shall not be
prorated on the Closing Date. Buyer shall include such delinquencies in its
normal billing and shall pursue the collection thereof in good faith in
accordance with its customary collection practices after the Closing Date (but
Buyer shall not be required to litigate or declare a default in any tenant
lease). If Buyer employs an unaffiliated third party to collect such
delinquent rents, the amount payable to Seller shall be net of the
proportionate share of the reasonable costs actually paid by Buyer to such
entity to collect such sums. To the extent Buyer receives rents on or after
the Closing Date, such payments shall be applied first toward then current
rent owed to Buyer in connection with the applicable tenant lease for which
such payments are received, and any excess monies received shall be applied
toward the payment of any delinquent rents, with Seller's share thereof being
promptly delivered to Seller. Buyer may not waive any delinquent rents nor
modify a tenant lease so as to reduce or otherwise affect amounts owed
thereunder for any period in which Seller is entitled to receive a share of
charges or amounts without first obtaining Seller's written consent. With
respect to delinquent rents or other rights of any kind respecting tenants who
are no longer tenants of the Property as of the Closing Date, Seller shall
retain all rights relating thereto.
(c) Interest payable on the Phase I Bonds and the Phase II Bonds from
the last payment date through the date on which the next payment is due
thereunder;
(d) Any fees or charges payable for trustee services or credit
enhancement under the Phase I Bond Documents or Phase II Bond Documents to the
extent (i) such fees or charges are applicable to the period in which the
Closing Date occurs and (ii) Seller has elected to pay such amounts pursuant
to paragraph 4C(2) hereof.
(e) All utility charges and other operating expenses.
(2) Calculation. The prorations and payments shall be made on the
basis of a written statement submitted to Buyer and Seller by Seller prior to
the Close of Escrow and approved by Buyer and Seller. In the event any
prorations or apportionments made under this subparagraph D shall prove to be
incorrect for any reason, then any party shall be entitled to an adjustment to
correct the same. Any item which cannot be finally prorated because of the
unavailability of information shall be tentatively prorated on the basis of
the best data then available and reprorated when the information is available.
6. Condemnation or Destruction of Property. In the event that, after
the date hereof but prior to the Closing Date, either any portion of the
Property is taken pursuant to eminent domain proceedings or any of the
improvements on the Property are damaged or destroyed by any casualty, Seller
shall have no obligation to repair or replace any such damage or destruction.
Seller shall, upon consummation of the transaction herein provided, assign to
Buyer all claims of Seller respecting any condemnation or casualty insurance
coverage, as applicable, and all condemnation proceeds or proceeds from any
such casualty insurance received by Seller on account of any casualty (the
damage from which shall not have been repaired by Seller prior to the Closing
Date), as applicable. In the event the condemnation award or the cost of
repair of damage to the Property on account of a casualty, as applicable,
shall exceed $100,000, Buyer may, at its option, terminate this Agreement by
notice to Seller, given on or before the Closing Date.
7. Representations, Warranties and Covenants.
A. Representations, Warranties and Covenants of Seller.
(1) General Disclaimer. Except as specifically set forth in paragraph
7A(2) below, the sale of the Property hereunder is and will be made on an "as
is" basis, without representations and warranties of any kind or nature,
express, implied or otherwise, including, but not limited to, any
representation or warranty concerning title to the Property, the physical
condition of the Property (including, but not limited to, the condition of the
soil or the Improvements), the environmental condition of the Property
(including, but not limited to, the presence or absence of hazardous
substances on or respecting the Property), the compliance of the Property with
applicable laws and regulations (including, but not limited to, zoning and
building codes or the status of development or use rights respecting the
Property), the financial condition of the Property or any other representation
or warranty respecting an income, expenses, charges, liens or encumbrances,
rights or claims on, affecting or pertaining to the Property or any part
thereof. Except as specifically set forth in paragraph 4A, Buyer acknowledges
that Buyer has examined, reviewed and inspected all matters which in Buyer's
judgment bear upon the Property and its value and suitability for Buyer's
purposes. Except as to matters specifically set forth in paragraph 7A(2)
below, Buyer will acquire the Property solely on the basis of its own physical
and financial examinations, reviews and inspections and the title insurance
protection afforded by the Owner's Policy.
(2) Limited Representations and Warranties of Seller. Subject to the
provisions of paragraph 7A(1) above, Seller hereby represents and warrants
that, except as set forth in Exhibit "G" attached hereto and made a part
hereof:
(a) Rent Roll. Attached as Exhibit "H" and made a part hereof is a
true, complete and accurate list, as of the date thereof, of all current
tenancies by name of tenant, apartment unit and current rent ("Rent Roll").
There are no oral or written agreements respecting occupancy of the Property
other than as disclosed by the Rent Roll. Except as provided in the
applicable tenancies or the Rent Roll, no rent concessions or abatements
applicable to periods after the Closing Date have been given to any tenant and
no person has an option or right of first refusal to purchase or lease any
interest in the Property. To Seller's knowledge, except as otherwise set
forth in the Rent Roll, all rents are being collected on a substantially
current basis and no more than one month's rent has been paid in advance. To
Seller's knowledge, no brokerage or leasing commission or similar payment or
fee is due, unpaid or partially paid, or may become due in the future, with
respect to any tenant lease, and Seller has not entered into any written or
oral agreement that will obligate Buyer to pay any such commission or fee
under any lease. To Seller's knowledge, Seller has not received any written
notice of a material default under any of such tenant leases that remains
uncured. Seller has delivered (or otherwise made available) to Buyer true and
complete copies of the tenant leases.
(b) Litigation. There is no pending (or, to Seller's knowledge,
threatened) action, litigation, condemnation or other proceeding against the
Property or against Seller with respect to (i) the Property or (ii) the Phase
I Bonds or the Phase II Bonds or their validity, enforceability or treatment
under federal tax law.
(c) Compliance. Seller has received no written notice from any
governmental authority having jurisdiction over the Property to the effect
that the Property is not in compliance with applicable laws and ordinances.
(d) Contracts. To Seller's knowledge, (i) there are no Contracts
(other than as set forth in this Agreement) relating to the Property which
will be in force on the Closing Date, except as described in Exhibit "I"
attached hereto (provided, however, the foregoing list does not include a
listing of any construction warranties, guaranties or bonds), and (ii) Seller
has not made any default under the Contracts which remains uncured. Seller
has delivered (or otherwise made available to Buyer true and complete copies
of the Contracts.
(e) Bond Documents. Seller has received no written notice of default,
and to Seller's knowledge there is no default, under the Phase I Bond
Documents or the Phase II Bond Documents (except that Seller makes no
representation or warranty as to the status of payments under the Phase II
Bond Documents). Seller has delivered (or otherwise made available) to Buyer
true and complete copies of the Phase I Bond Documents and the Phase II Bond
Documents.
(f) Due Authority. This Agreement and all agreements, instruments and
documents herein provided to be executed or to be caused to be executed by
Seller are and on the Closing Date will be duly authorized, executed and
delivered by and are binding upon Seller. Seller is a general partnership,
duly organized and validly existing under the laws of the State of Illinois,
and is duly authorized and qualified to do all things required of it under
this Agreement. Seller has the capacity and authority to enter into this
Agreement and consummate the transactions herein provided.
(g) Environmental Matters. Seller has received no written notice, and
Seller has no knowledge, of the existence, deposit, storage, removal, burial
or discharge of any "Hazardous Material" at, upon, under or within the
Property, in an amount which would, as of the date hereof, give rise to an
"Environmental Compliance Cost". The term "Hazardous Material" shall mean (i)
asbestos and any chemicals, flammable substances or explosives, any
radioactive materials (including radon), any hazardous wastes or substances
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 Agency, 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 materials
listed under items (i) and (ii) above cause the 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 Material" shall not include motor oil and gasoline contained in or
discharged from vehicles not used primarily for the transport of motor oil or
gasoline. The term "Environmental Compliance Cost" means any actual
out-of-pocket cost, fee or expense incurred directly to satisfy any
requirement imposed by an Environmental Agency to bring the Property into
compliance with applicable Federal, State and local laws and regulations
directly relating to the existence on the Property of any Hazardous Material.
(h) Ownership of Phase II Bonds. Seller has been informed that the
Phase II Bonds are currently owned by either (i) Columbia or (ii) the RTC
Trust (or by the Bank of America, as Trustee for the RTC Trust), whose
servicing agent is BEI Management, Inc. Seller has been further informed that
such bonds have been or will be transferred to such holder from the Resolution
Trust Corporation on behalf of Columbia. Seller has no knowledge that any
party, other than the foregoing, has any legal or beneficial interest in the
Phase II Bonds.
(i) No Employees. There are no employees of Seller at the Property
(all such employees being employed by the management company engaged by Seller
in connection with the operation and management of the Property).
(j) Seller's Knowledge. As used herein, the phrase "knowledge" with
respect to Seller means the present actual knowledge of Keith Harris, Jeff
Appel or Laura Banta, which individuals are persons primarily responsible for
the sale of the Property contemplated herein or operations of the Property on
behalf of Seller, respectively.
B. Representations and Warranties of Buyer. Buyer hereby represents
and warrants to Seller that:
(1) This Agreement and all agreements, instruments and documents
herein provided to be executed or to be caused to be executed by Buyer are and
on the Closing Date will be duly authorized, executed and delivered by and are
binding upon Buyer.
(2) Buyer is a limited partnership, duly organized and validly
existing and in good standing under the laws of the State of Washington, and
is duly authorized and qualified to do all things required of it under this
Agreement.
(3) Buyer has the capacity and authority to enter into this Agreement
and consummate the transactions herein provided.
C. Survival. Any cause of action of a party for a breach of the
foregoing representations and warranties shall survive until the date which is
one year after the Closing Date, at which time such representations and
warranties (and any cause of action resulting from a breach thereof not then
in litigation) shall terminate. Notwithstanding the foregoing, if Buyer shall
have knowledge as of the Closing Date that any of the representations or
warranties of Seller contained herein are false or inaccurate or that Seller
is in breach or default of any of its obligations under this Agreement, and
Buyer nonetheless closes the transactions hereunder and acquires the Property,
then Seller shall have no liability or obligation respecting such false or
inaccurate representations or warranties or other breach or default (and any
cause of action resulting therefrom shall terminate upon such closing
hereunder). As used herein, the phrase "knowledge" with respect to Buyer
means the present actual knowledge of Gary Gray.
D. Interim Covenants of Seller. Until the Closing Date or the sooner
termination of this Agreement:
(1) Seller shall maintain the Property in the same manner as prior
hereto pursuant to its normal course of business (such maintenance obligations
not including extraordinary capital expenditures or expenditures not incurred
in such normal course of business), subject to reasonable wear and tear and
further subject to destruction by casualty or other events beyond the control
of Seller. Subject to the limitations set forth above, Seller agrees that
Seller will cause any apartment unit vacated more than ten (10) days prior to
the Closing Date (the tenant lease with respect thereto having theretofore
been terminated) to be placed in market-ready condition (but Seller shall not
have the obligation to deliver apartment units vacated for ten (10) days or
less prior to Closing Date in such market-ready condition).
(2) Seller shall not enter into any additional service contracts or
other similar agreements without the prior consent of Buyer, except those
deemed reasonably necessary by Seller which are cancelable on 30 days' notice.
(3) Seller shall continue to offer the Property for lease in the same
manner as prior hereto pursuant to its normal course of business and, upon
request, shall keep Buyer reasonably informed as to the status of leasing
prior to the Closing Date.
(4) Seller shall cause its existing Management Agreement respecting
the Property to be terminated as of the Closing Date.
(5) Seller will deliver to Buyer a schedule of any payments made by
Seller under the Phase II Bonds prior to the Closing Date.
8. Indemnification.
A. By Buyer. Buyer shall hold harmless, indemnify and defend Seller
from and against: (1) any and all third party claims for Buyer's torts or
breaches of contract related to the Property and occurring on or after the
Closing Date; (2) any breach by Buyer of any of the representations and
warranties contained in paragraph 7B or in paragraph 4B(2) hereof (subject to
the one-year survival limitations contained in paragraph 7C above); (3) any
and all loss, damage or third party claims in any way arising from Buyer's
inspections or examinations of the Property prior to the Closing Date; and
(4) all costs and expenses, including reasonable attorney's fees, incurred by
Seller as a result of the foregoing.
B. By Seller. Seller shall hold harmless, indemnify and defend Buyer
from and against: (1) any and all third party claims for Seller's torts or
breaches of contract related to the Property and occurring prior to the
Closing Date; (2) any breach by Seller of any of the representations or
warranties contained in paragraph 7A (subject to the one-year survival
limitations contained in paragraph 7C above); and (3) all costs and expenses,
including reasonable attorney's fees, incurred by the Buyer as a result of
such claims. The foregoing indemnity shall not cover any matters relating to
title or marketability of the Property (Buyer relying on the coverage provided
by the Owner's Policy as to such matters).
C. Generally. Each indemnification under this Agreement shall be
subject to the following provisions: The indemnitee shall notify indemnitor
of any such claim against indemnitee within 30 days after it has notice of
such claim, but failure to notify indemnitor shall in no case prejudice the
rights of indemnitee under this Agreement unless indemnitor shall be
prejudiced by such failure and then only to the extent of such prejudice.
Should indemnitor fail to discharge or undertake to defend indemnitee against
such liability within 10 days after the indemnitee gives the indemnitor
written notice of the same, then indemnitee may settle such liability, and
indemnitor's liability to indemnitee shall be conclusively established by such
settlement, the amount of such liability to include both the settlement
consideration and the reasonable costs and expenses, including attorneys'
fees, incurred by indemnitee in effecting such settlement.
9. DISPOSITION OF DEPOSITS. IF THE TRANSACTION HEREIN PROVIDED SHALL
NOT BE CLOSED FOR ANY REASON OTHER THAN BUYER'S DEFAULT UNDER THIS AGREEMENT,
THEN THE ESCROW DEPOSIT SHALL BE RETURNED TO BUYER, AND NEITHER PARTY SHALL
HAVE ANY FURTHER OBLIGATION OR LIABILITY TO THE OTHER; PROVIDED, HOWEVER, IF
THE TRANSACTIONS HEREUNDER SHALL FAIL TO CLOSE BY REASON OF SELLER'S DEFAULT,
AND BUYER SHALL HAVE FULLY PERFORMED ITS OBLIGATIONS HEREUNDER AND SHALL BE
READY, WILLING AND ABLE TO CLOSE, THEN BUYER SHALL BE ENTITLED TO SPECIFICALLY
ENFORCE THIS AGREEMENT (BUT, SUBJECT TO THE PROVISIONS OF PARAGRAPH 10I
HEREOF, NO OTHER ACTION, FOR DAMAGES OR OTHERWISE, SHALL BE PERMITTED). IN
THE EVENT THE TRANSACTION HEREIN PROVIDED SHALL NOT CLOSE BY REASON OF BUYER'S
DEFAULT UNDER THIS AGREEMENT, THEN THE ESCROW DEPOSIT SHALL BE DELIVERED TO
SELLER AS FULL COMPENSATION AND LIQUIDATED DAMAGES UNDER AND IN CONNECTION
WITH THIS AGREEMENT. IN THE EVENT THE TRANSACTION HEREIN PROVIDED SHALL
CLOSE, THE ESCROW DEPOSIT SHALL BE APPLIED AS A PARTIAL PAYMENT OF THE
PURCHASE PRICE. IN CONNECTION WITH THE FOREGOING, THE PARTIES RECOGNIZE THAT
SELLER WILL INCUR EXPENSE IN CONNECTION WITH THE TRANSACTION CONTEMPLATED BY
THIS AGREEMENT AND THAT THE PROPERTY WILL BE REMOVED FROM THE MARKET; FURTHER,
THAT IT IS EXTREMELY DIFFICULT AND IMPRACTICABLE TO ASCERTAIN THE EXTENT OF
DETRIMENT TO SELLER CAUSED BY THE BREACH BY BUYER UNDER THIS AGREEMENT AND THE
FAILURE OF THE CONSUMMATION OF THE TRANSACTION CONTEMPLATED BY THIS AGREEMENT
OR THE AMOUNT OF COMPENSATION SELLER SHOULD RECEIVE AS A RESULT OF BUYER'S
BREACH OR DEFAULT. IN THE EVENT THE SALE OF THE PROPERTY SHALL NOT BE
CONSUMMATED ON ACCOUNT OF BUYER'S DEFAULT, THEN THE RETENTION OF THE ESCROW
DEPOSIT SHALL BE SELLER'S SOLE AND EXCLUSIVE REMEDY UNDER THIS AGREEMENT BY
REASON OF SUCH DEFAULT, SUBJECT TO THE PROVISIONS OF PARAGRAPH 10I HEREOF.
Seller's Initials Buyer's Initials
10. Miscellaneous.
A. Brokers.
(1) Except as provided in subparagraphs (2) and (3) below, Seller
represents and warrants to Buyer, and Buyer represents and warrants to Seller,
that no broker or finder has been engaged by it, respectively, in connection
with any of the transactions contemplated by this Agreement or to its
knowledge is in any way connected with any of such transactions. In the event
of a claim for broker's or finder's fee or commissions in connection herewith,
then Seller shall indemnify and defend Buyer from the same if it shall be
based upon any statement or agreement alleged to have been made by Seller, and
Buyer shall indemnify and defend Seller from the same if it shall be based
upon any statement or agreement alleged to have been made by Buyer. The
indemnification obligations under this paragraph 10 A(1) shall survive the
closing of the transactions hereunder or the earlier termination of this
Agreement.
(2) If and only if the sale contemplated herein closes, Seller agrees
to pay (i) a brokerage commission equal to 2.5% of the Purchase Price to
Fuller & Company and (ii) a brokerage commission equal to 1.0% of the Purchase
Price to Baum, Baum & Heath (collectively, the "Brokers"). The foregoing
payments shall be the sole commissions, fees or payments payable to the
Brokers in connection with the transactions hereunder. No commission, fee or
payment shall be payable to either of the Brokers except in the event of a
sale hereunder and if such sale does not close for any reason (including by
reason of a default by Seller or Buyer hereunder), no commission, fee or other
payment of any kind shall be payable to the Brokers by Seller. The Brokers
may divide the commission with other licensed real estate brokers; provided,
however, that notwithstanding any agreement for the division of the
commission, Seller shall be fully protected in paying the commission solely to
the Brokers, as provided herein.
(3) The Brokers are being asked to join in the execution of this
Agreement by Seller in order to confirm their understanding of and agreement
with the foregoing provisions. However, it is expressly understood by Buyer
and Seller that execution by the Brokers is not a condition to the validity of
this Agreement between Buyer and seller, and the Brokers shall not, under any
circumstances, be deemed third party beneficiaries of this Agreement.
B. Limitation of Liability.
(1) Notwithstanding anything to the contrary contained herein, if the
closing of the transactions hereunder shall have occurred (and Buyer shall not
have waived, relinquished or released any applicable rights in further
limitation), the aggregate liability of Seller arising pursuant to or in
connection with the representations, warranties, indemnifications, covenants
or other obligations (whether express or implied) of Seller under this
Agreement (or any document executed or delivered in connection herewith) shall
not exceed $500,000.
(2) No constituent partner in or agent of Seller, nor any advisor,
trustee, director, officer, employee, beneficiary, shareholder, participant,
representative or agent of any corporation or trust that is or becomes a
constituent partner in Seller (including, but not limited to, Carlyle Real
Estate Limited Partnership-XIV and JMB Realty Corporation) shall have any
personal liability, directly or indirectly, under or in connection with this
Agreement or any agreement made or entered into under or pursuant to the
provisions of this Agreement, or any amendment or amendments to any of the
foregoing made at any time or times, heretofore or hereafter, and Buyer and
its successors and assigns and, without limitation, all other persons and
entities, shall look solely to Seller's assets for the payment of any claim or
for any performance, and Buyer, on behalf of itself and its successors and
assigns, hereby waives any and all such personal liability. Notwithstanding
anything to the contrary contained in this Agreement, neither the negative
capital account of any constituent partner in Seller (or in any other
constituent partner of Seller), nor any obligation of any constituent partner
in Seller (or in any other constituent partner of Seller) to restore a
negative capital account or to contribute capital to Seller (or to any other
constituent partner of Seller), shall at any time be deemed to be the property
or an asset of Seller or any such other constituent partner (and neither Buyer
nor any of its successors or assigns shall have any right to collect, enforce
or proceed against or with respect to any such negative capital account of
partner's obligation to restore or contribute).
C. Entire Agreement. 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. This
Agreement may not be modified or amended except by written agreement signed by
both parties.
D. Time of the Essence. Time is of the essence of this Agreement.
E. Interpretation. Paragraph headings shall not be used in
construing this Agreement. Each party acknowledges that such party and its
counsel, after negotiation and consultation, have reviewed and revised this
Agreement. As such, the terms of this Agreement shall be fairly construed and
the usual rule of construction, to the effect that any ambiguities herein
should be resolved against the drafting party, shall not be employed in the
interpretation of this Agreement or any amendments, modifications or exhibits
hereto or thereto.
F. Governing Law. This Agreement shall be construed and enforced in
accordance with the laws of the State of Colorado.
G. Successors and Assigns. Buyer may not assign or transfer its
rights or obligations under this Agreement without the prior written consent
of Seller (in which event such transferee shall assume in writing all of the
transferor's obligations hereunder, but such transferor shall not be released
from its obligations hereunder); provided, however, Buyer may assign its
interest in this Agreement to a limited partnership in which Buyer is the
managing general partner and has not less than a 51% interest in capital and
profits in such limited partnership. No consent given by Seller to any
transfer or assignment of Buyer's rights or obligations hereunder shall be
construed as a consent to any other transfer or assignment of Buyer's rights
or obligations hereunder. No transfer or assignment 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.
H. Notices. Any notice which a party is required or may desire to
give the other shall be in writing and shall be sent by personal delivery or
by mail (either [i] by United States registered or certified mail, return
receipt requested, postage prepaid, or [ii] by Federal Express or similar
generally recognized overnight carrier regularly providing proof of delivery),
addressed as follows (subject to the right of a party to designate a different
address for itself by notice similarly given):
To Buyer:
Graoch Associates #20 Limited Partnership
c/o 10425 Sales Road Associates, Inc.
1066 West Hastings Street
Suite 1400
Vancouver, British Columbia
Canada V6E3X1
Attention: Gary M. Gray, President
With Copy To:
Bruce P. Weiland, Esq.
600 Ericksen Avenue, Suite 390
Bainbridge Island, Washington 98110
To Seller:
Carlyle/Brittany Downs Associates
c/o JMB Realty Corporation
900 North Michigan Avenue
19th Floor
Chicago, Illinois 60611
Attention: Mr. Keith A. Harris
With Copy To:
Pircher, Nichols & Meeks
1999 Avenue of the Stars
Suite 2600
Los Angeles, California 90067
Attention: Real Estate Notices (GML)
Any notice so given by mail shall be deemed to have been given as of the date
of delivery (whether accepted or refused) established by U.S. Post Office
return receipt or the overnight carrier's proof of delivery, as the case may
be. Any such notice not so given shall be deemed given upon receipt of the
same by the party to whom the same is to be given.
I. Legal Costs. The parties hereto agree that they shall pay
directly any and all legal costs which they have incurred on their own behalf
in the preparation of this Agreement, all deeds and other agreements
pertaining to this transaction and that such legal costs shall not be part of
the closing costs. In addition, if either Buyer or Seller brings any suit or
other proceeding with respect to the subject matter or the enforcement of this
Agreement, the prevailing party (as determined by the court, agency or other
authority before which such suit or proceeding is commenced), in addition to
such other relief as may be awarded, shall be entitled to recover reasonable
attorneys' fees, expenses and costs of investigation actually incurred. The
foregoing includes, but is not limited to, attorneys' fees, expenses and costs
of investigation (including, without limitation, those incurred in appellate
proceedings), costs incurred in establishing the right to indemnification, or
in any action or participation in, or in connection with, any case or
proceeding under Chapter 7, 11 or 13 of the Bankruptcy Code (11 United States
Code Sections 101 et seq.), or any successor statutes.
J. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed to be an original instrument but
all such counterparts together constituting but one agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
CARLYLE/BRITTANY DOWNS ASSOCIATES,
an Illinois general partnership,
General Partner
By: CARLYLE REAL ESTATE LIMITED
PARTNERSHIP-XIV,
an Illinois limited partnership,
General Partner
By: JMB REALTY CORPORATION,
a Delaware corporation,
General Partner
By: ______________________________
Name: _______________________
Title: _______________________
"Seller"
GRAOCH ASSOCIATES #20 LIMITED PARTNERSHIP,
a Washington limited partnership
By: BDA ASSOCIATES, L.P.,
a Washington limited partnership,
General Partner
By: 10425 SALES ROAD ASSOCIATES, INC.,
a Washington limited partnership,
General Partner
By: ______________________________
Name: Gary M. Gray
Title: President
"Buyer"
ESCROW HOLDER'S ACKNOWLEDGEMENT
The undersigned hereby executes this Agreement to evidence its agreement
to act as Escrow Holder in accordance with the terms of this Agreement.
Date: ________________STEWART TITLE GUARANTY COMPANY,
a _____________ corporation
By: ___________________________________
Name: _____________________________
Title: ____________________________
"Escrow Holder"
BROKERS' ACKNOWLEDGMENT
Each of the Brokers has executed this Agreement for the purpose of
evidencing its agreement to the terms of paragraph 10A(2) of this Agreement.
No consent by either of the Brokers shall be required to amend any other terms
of this Agreement.
Date: ________________FULLER & COMPANY
a _____________________________________
By: ___________________________________
Name: _____________________________
Title: ____________________________
Date: ________________BAUM, BAUM & HEATH
a _____________________________________
By: ___________________________________
Name: _____________________________
Title: ____________________________
EXHIBIT LIST
"A-1" - Phase I Property Description
"A-2" - Phase II Property Description
"B" - Personal Property
"C-1" - Phase I Bond Documents
"C-2" - Phase II Bond Documents
"D" - Deed
"E" - Assignment and Assumption Agreement
"F-1" - Phase I Bonds Assignment and Assumption
Agreement
"F-2" - Phase II Bonds Assignment and Assumption
Agreement
"G" - Exceptions to Seller's Representations
and Warranties
"H" - List of Tenant Leases
"I" - Service Agreements
EXHIBIT "G"
Exceptions to Seller's Representations and Warranties
None
EXHIBIT "C"
CONTRACTS - PHASE I
1. Continuing Service Agreement dated August 1, 1993 with Browning-
Ferris Industries, respecting trash collection, for Phase I.
2. Continuing Service Agreement dated March 22, 1994 with Allen
Keesen Landscape, Inc., respecting landscape maintenance, for Phase I.
3. Continuing Service Agreement dated May 17, 1994 with Rocky
Mountain Pest Control, Inc., respecting pest control services, for Phase I.
4. Continuing Service Agreement dated December 22, 1992 with Energy
Billing Systems, Inc., respecting billing services, for Phase I.
5. Continuing Service Agreement dated September 22, 1994 with Piper
Sprinkler Company, Inc., regarding snow removal services, for Phase I.
6. Profit Sharing Agreement dated June 17, 1988 with Skyline Music
Company, Inc. respecting Pepsi vending machine.
7. Extended Laundry Room Lease with Automatic Laundry Company, Ltd.,
executed by lessee on June 15, 1994 and accepted by Seller on July 14, 1994,
respecting Phase I.
8. Contracts and agreements of record.
Together with an undivided 50% interest in and to the following:
1. Membership Agreement dated March 29, 1994 with Plaza Athletic Club
respecting athletic club membership.
2. Single Apartment Community Advertising Agreement dated February 7,
1994 with Apartments for Rent respecting apartment rental advertisements.
3. Lease Agreement with Ownership Option and Disclosure Statement
dated June 15, 1991 with Luxury Rental Center respecting certain furniture
rentals.
4. Furniture Rental Agreement dated November 16, 1985 with Cort
Furniture Rental respecting certain furniture rentals.
EXHIBIT "A"
PROPERTY DESCRIPTION (Phase I)
All that certain land located in the County of Adams, State of Colorado,
and described as follows:
LOT 1, BLOCK 1, BRITTANY DOWNS SUBDIVISION, FILING NO.
1.
EXHIBIT "A"
PROPERTY DESCRIPTION (Phase II)
All that certain land located in the County of Adams, State of Colorado,
and described as follows:
LOT 2, BLOCK 1, BRITTANY DOWNS SUBDIVISION, FILING NO.
1.
EXHIBIT "C"
CONTRACTS - PHASE II
1. Continuing Service Agreement dated August 1, 1993 with Browning-
Ferris Industries, respecting trash collection, for Phase II.
2. Continuing Service Agreement dated March 22, 1994 with Allen
Keesen Landscape, Inc., respecting landscape maintenance, for Phase II.
3. Continuing Service Agreement dated May 17, 1994 with Rocky
Mountain Pest Control, Inc., respecting pest control services, for Phase II.
4. Continuing Service Agreement dated December 22, 1992 with Energy
Billing Systems, Inc., respecting billing services, for Phase II.
5. Continuing Service Agreement dated September 22, 1994 with Piper
Sprinkler Company, Inc., regarding snow removal services, for Phase II.
6. Full Service Vending Agreement No. KD06516 with Coca-Cola Bottling
respecting vending machines.
7. Extended Laundry Room Lease with Automatic Laundry Company, Ltd.,
executed by lessee on June 15, 1994 and accepted by Seller on July 14, 1994,
respecting Phase II.
8. Contracts and agreements of record.
Together with an undivided 50% interest in and to the following:
1. Membership Agreement dated March 29, 1994 with Plaza Athletic Club
respecting athletic club membership.
2. Single Apartment Community Advertising Agreement dated February 7,
1994 with Apartments for Rent respecting apartment rental advertisements.
3. Lease Agreement with Ownership Option and Disclosure Statement
dated June 15, 1991 with Luxury Rental Center respecting certain furniture
rentals.
4. Furniture Rental Agreement dated November 16, 1985 with Cort
Furniture Rental respecting certain furniture rentals.
BILL OF SALE, ASSIGNMENT AND ASSUMPTION (PHASE II)
(Brittany Downs Apartments - Phase II; Thornton, Colorado)
This Bill of Sale and Assignment is given subject and pursuant to that
certain Purchase Agreement ("Agreement") dated as of November 16, 1994,
between the Seller and Buyer, as amended by that certain First Amendment to
Purchase Agreement dated as of December 22, 1994, among Seller, Buyer and
Graoch Associates #19 Limited Partnership (together with any and all other
amendments or modifications thereto), providing for, among other things, the
sale of that certain apartment complex known as the "Brittany Downs
Apartments", located in the City of Thornton, County of Adams and State of
Colorado, a portion of which complex commonly referred to as the Phase II
portion thereof is being acquired by Buyer concurrently herewith (such portion
herein called the "Phase II Property"), together with the Personal Property,
Leases, Contracts, Plans and Specifications, Licenses and Permits and
Intangible Property (defined below) related thereto.
FOR VALUABLE CONSIDERATION, receipt of which is hereby acknowledged, the
undersigned, CARLYLE/BRITTANY DOWNS ASSOCIATES, an Illinois general
partnership ("Seller"), hereby sells, transfers, warrants, bargains, sets
over, delivers, assigns and conveys to GRAOCH ASSOCIATES #20 LIMITED
PARTNERSHIP, a Washington limited partnership ("Buyer"), its successors and
assigns, the following:
1. Personal Property. All right, title and interest of Seller in and
to all tangible personal property (including all personal property listed on
Exhibit "A" attached hereto and made a part hereof) now or hereafter owned or
held by Seller and used in connection with the Phase II Property, including,
without limitation, and all furniture, fixtures, machinery, appliances,
equipment, supplies and building materials located on the Phase II Property on
the date hereof, other than personal property owned by tenants of the Phase II
Property, or personal property leased by Seller; provided, however, the
foregoing does not include any computer equipment, computer programs or
related software of Seller ("Personal Property").
2. Leases. All right, title and interest of Seller in and to all
tenant leases ("Leases") as defined in the Agreement relating to the Phase II
Property, or any part of the same, as more particularly set forth in
Exhibit "B" attached.
3. Contracts. All right, title and interest of Seller in and to all
third-party contracts and agreements respecting the operation, ownership, use
or maintenance of the Phase II Property, including without limitation: all
non-tenant leases or agreements involving equipment, furniture, fixtures, or
other personal property; all service contracts involving utilities,
landscaping, construction, parking, brokerage services or other services
respecting the use, operation or maintenance of the Phase II Property; all
construction agreements, warranties, guarantees, bonds, or other contracts
respecting to the construction or maintenance of all improvements and
structures located on the Phase II Property (the "Improvements"); together
with all supplements, amendments, or modifications to any one or more of the
foregoing (the "Contracts").
4. Plans and Specifications. All right, title and interest of Seller
in and to all plans, specifications, designs, blueprints and as-built drawings
respecting the construction of the Improvements (the "Plans and
Specifications").
5. Licenses and Permits. All right, title and interest of Seller in
and to all certificates of occupancy, licenses, permits, approvals,
dedications, plats, maps and other entitlements, authorizations or approvals
of any governmental agency or authority to the Phase II Property (the
"Licenses and Permits");
6. Intangible Property. All right, title and interest of Seller in
and to the name of the Phase II Property and all trademarks, trade names,
trade styles and service marks related to such name; any and all development
rights and other intangible rights, titles, interests, privileges and
appurtenances owned by Seller and used in connection with the Phase II
Property and its operation; all licenses, consents, easements, rights of way
and approvals from private parties relating to the use of utilities, vehicular
or pedestrian ingress and egress to the Phase II Property and the use,
operation and maintenance of the Phase II Property as intended; and all
advertising materials, catalogues, customer lists, and telephone numbers
relating to or identified with the Phase II Property; together with all
goodwill related to any one or more of the foregoing (collectively, the
"Intangible Property").
The covenants, agreements, representations, warranties, and limitations
(including, but not limited to, the survival limitations set forth in
paragraph 7C of the Agreement, the limitations of liability provided in
paragraph 10B of the Agreement and the indemnifications provided in
paragraph 8 of the Agreement) provided in the Agreement with respect to the
property conveyed hereunder are hereby incorporated herein by this reference
as if herein set out in full and shall inure to the benefit of and shall be
binding upon Seller and Buyer, and their respective successors and assigns.
Said property is conveyed "as is" without warranty or representation, except
as expressly provided in (and subject to the limitations of) the Agreement.
This Bill of Sale, Assignment and Assumption may be executed in two or
more counterparts, each of which shall be deemed to be an original instrument
but all of such counterparts together constituting but one agreement
DATED: As of January __, 1995.
CARLYLE/BRITTANY DOWNS ASSOCIATES,
an Illinois general partnership,
General Partner
By: CARLYLE REAL ESTATE LIMITED
PARTNERSHIP-XIV,
an Illinois limited partnership,
General Partner
By: JMB REALTY CORPORATION,
a Delaware corporation,
General Partner
By: ______________________________
Name: Douglas J. Welker
Title: Senior Vice President
"Seller"
As of this ____ day of January 1995, Buyer hereby accepts the foregoing
assignment of Leases and Contracts and agrees to assume and discharge, in
accordance with the terms thereof, all of the burdens and obligations of
Seller thereunder, to the extent the same arise from and after the date
hereof.
GRAOCH ASSOCIATES #20 LIMITED PARTNERSHIP,
a Washington limited partnership
By: BDA ASSOCIATES, L.P.,
a Washington limited partnership,
General Partner
By: 10425 SALES ROAD ASSOCIATES, INC.,
a Washington corporation,
General Partner
By:
Name: Gary M. Gray
Title: President
"Buyer"
EXHIBIT C-1
INDEX OF PHASE I BOND REFINANCING DOCUMENTS
$6,980,000 Adams County, Colorado,
Multifamily Housing Revenue Refunding Bonds, Series 1988A
(Columbia Banking Federal Savings and Loan Association
Collateralized Letter of Credit - Brittany Downs Project)
1. Financing Agreement dated as of March 1, 1988, between Adams County,
Colorado (the "Issuer"), and Carlyle/Brittany Downs Associates, an Illinois
general partnership (the "Owner").
2. Trust Indenture dated as of March 1, 1988, between the Issuer and Denver
National Bank, as trustee (now Bank One, Denver, N.A.) (the "Trustee").
3. Irrevocable Letter of Credit No. G.L. 3030 dated March 3, 1988, issued
by the Association in favor of the Trustee.
4. Reimbursement Agreement dated as of March 1, 1988, between the Owner and
the Association.
5. Letter (amendment to Reimbursement Agreement) dated October 18, 1989,
between the Owner and the Association.
6. Collateral Pledge Agreement dated as of March 1, 1988, between the
Association and the Trustee.
7. Promissory Note dated March 1, 1988, in the principal amount of
$7,090,000, made by the Owner and payable to the Trustee.
8. Collateral Mortgage Note dated March 1, 1988, in the principal amount of
$7,324,857, made by the Owner and payable to the Association.
9. Deed of Trust, Assignment of Rents, Security Agreement, and Financing
Statement dated as of March 1, 1988, made by the Owner, to the Public Trustee
of the County of Adams, for the benefit of the Association.
10. Warranty Deed and Restrictive Covenants dated as of November 17, 1983,
between the Issuer and Pearl Street Associates, Ltd., a Texas limited
partnership (the owner before the Owner).
11. Supplemental Land Use Restriction Agreement dated as of March 1, 1988,
among the Owner, the Issuer, First Interstate Bank of Denver, N.A., as trustee
for the owners of the Issuer's Series 1983A Bonds, and the Trustee.
12. UCC Financing Statement by the Owner in favor of the Association.
[VERIFY]
13. Remarketing Agreement dated April 16, 1993, between Smith Barney, Harris
Upham & Co. Incorporated and the Owner.
EXHIBIT C-2
INDEX OF PHASE II BOND REFINANCING DOCUMENTS
$6,440,000 Adams County, Colorado,
Multifamily Housing Revenue Refunding Bonds, Series 1987A
(Columbia Banking Federal Savings and Loan Association
Collateralized Letter of Credit - Brittany Station Project)
and
$1,000,000 Adams County, Colorado,
Multifamily Housing Revenue Refunding Bonds, Series 1987B
(Columbia Banking Federal Savings and Loan Association
Collateralized Letter of Credit - Brittany Station Project)
1. Financing Agreement, dated as of June 1, 1987, between Adams County,
Colorado (the "Issuer"), and The 92nd Company, Inc., a Colorado corporation
(the "Prior Owner").
2. Assignment and Assumption Agreement dated as of December 18, 1987,
between the Prior Owner and Carlyle/Brittany Downs Associates, an Illinois
general partnership (the "Owner").
3. Trust Indenture, dated as of June 1, 1987, between the Issuer and Denver
National Bank, as trustee (now Bank One, Denver, N.A.) (the "Trustee").
4. Amended and Restated Reimbursement Agreement dated as of December 18,
1987, between the Owner and the Association.
5. Letter (amendment to Reimbursement Agreement) dated October 18, 1989,
between the Owner and the Association.
6. Collateral Pledge Agreement, dated as of June 1, 1987, by and between
the Association and the Trustee. [VERIFY]
7. Series A Promissory Note, dated June 1, 1987, in the principal amount of
$6,500,000, made by the Prior Owner and payable to the Trustee.
8. Series B Promissory Note, dated June 1, 1987, in the principal amount of
$1,000,000, made by the Prior Owner and payable to the Trustee.
9. Deed of Trust, Assignment of Rents, Security Agreement, and Financing
Statement, dated as of June 1, 1987, made by the Prior Owner, to the Public
Trustee of Adams County, Colorado (the "Public Trustee"), for the benefit of
the Trustee.
10. Deed of Trust, Assignment of Rents, Security Agreement, and Financing
Statement, dated as of June 1, 1987, made by the Prior Owner, to the Public
Trustee, for the benefit of the Association.
11. Amendment of Deed of Trust, Assignment of Rents, Security Agreement and
Financing Statement dated as of December 18, 1987, by the Owner and consented
to and approved by the Association.
EXHIBIT C-2 (Continued)
INDEX OF PHASE II BOND REFINANCING DOCUMENTS
12. Warranty Deed and Restrictive Covenants made as of November 17, 1983, by
Pearl Street Associates, Ltd., a Texas limited partnership (the owner before
the Prior Owner).
13. Supplemental Land Use Restriction Agreement dated as of June 1, 1987,
among the Prior Owner, the Issuer, First Interstate Bank of Denver, N.A., as
trustee for the owners of the Issuer's Series 1983B Bonds, and the Trustee.
14. (a) U.C.C.-1 Financing Statement, made by the Issuer, as Debtor, to
the Trustee, as Secured Party, filed with the Colorado Secretary of State.
[VERIFY]
(b) U.C.C.-1 Financing Statement, made by the Issuer, as Debtor, to
the Trustee, as Secured Party, recorded with the Adams County Recorder.
[VERIFY]
(c) U.C.C.-1 Financing Statement made by the Owner, as Debtor, to the
Association, recorded with the Adams County Recorder. [VERIFY]
(d) U.C.C.-1 Financing Statement, made by the Prior Owner, as Debtor,
to the Association, as Secured Party, recorded with the Adams County Recorder
and with the Adams County Recorder, U.C.C. Division. [VERIFY]
(e) U.C.C.-1 Financing Statement, made by the Prior Owner, as Debtor,
to the Trustee, as Secured Party, filed with the Colorado Secretary of State.
[VERIFY]
(f) U.C.C.-1 Financing Statement, made by the Prior Owner, as Debtor,
to the Trustee, as Secured Party, recorded with the Adams County Recorder,
U.C.C. Division. [VERIFY]
15. Collateral Mortgage Note, dated June 23, 1987, in the principal amount
of $7,829,375, made by the Prior Owner and payable to the Association.
16. Note Allonge dated as of December 18, 1987, executed by the Owner.
SPECIAL WARRANTY DEED (PHASE II)
(Brittany Downs Apartments - Phase II; Thornton, Colorado)
THIS DEED, made this ___ day of January, 1995, between CARLYLE/BRITTANY
DOWNS ASSOCIATES, an Illinois general partnership, whose legal address is 900
North Michigan Avenue, Chicago, Illinois 60611, Grantor, and GRAOCH ASSOCIATES
#20 LIMITED PARTNERSHIP, whose legal address is c/o 10425 Sales Road
Associates, Inc., 1066 West Hastings Street, Suite 1400, Vancouver, British
Columbia, Canada V6E3X1, Grantee:
WITNESSETH, That the Grantor, for and in consideration of the sum of Ten
Dollars and other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, has granted, bargained, sold and conveyed,
and by these presents does grant, bargain, sell, convey and confirm, unto the
Grantee, and its successors and assigns forever, all the real property,
together with all improvements, if any, situated, lying and being in the
County of Adams, State of Colorado, described on Exhibit "A" attached hereto
and made a part hereof (such property also known as 8849 Pearl Street,
Brittany Downs Apartments - Phase II, Thornton, Colorado).
TOGETHER WITH all and singular the hereditaments and appurtenances
thereto belonging, or in anywise appertaining, and the reversion and
reversions, remainder and remainders, rents, issues and profits thereof; and
all the estate, right, title, interest, claim and demand whatsoever of the
Grantor, either in law or equity, of, in and to the above bargained premises,
with the hereditaments and appurtenances;
TO HAVE AND TO HOLD the said premises above bargained and described with
the appurtenances, unto the Grantee, and its successors and assigns forever.
The Grantor, for itself and its successors and assigns, does covenant and
agree that it shall and will WARRANT AND FOREVER DEFEND the above bargained
premises in the quiet and peaceable possession of the Grantee, and its
successors and assigns, against all and every person or persons claiming the
whole or any part thereof, by, through or under the Grantor, EXCEPT for any
and all matters of record.
IN WITNESS WHEREOF, the Grantor has executed this deed on the date set
forth above.
CARLYLE/BRITTANY DOWNS ASSOCIATES,
an Illinois general partnership,
General Partner
By: CARLYLE REAL ESTATE LIMITED
PARTNERSHIP-XIV,
an Illinois limited partnership,
General Partner
By: JMB REALTY CORPORATION,
a Delaware corporation,
General Partner
By: _____________________________
Name: Douglas J. Welker
Title: Senior Vice President
STATE OF ILLINOIS )
) ss.
COUNTY OF COOK )
The foregoing instrument was acknowledged before me this ___ day of
January, 1995, by Douglas J. Welker as Senior Vice President of JMB Realty
Corporation, the General Partner of Carlyle Real Estate Limited
Partnership-XIV, the General Partner of Carlyle/Brittany Downs Associates, an
Illinois general partner.
WITNESS my hand and official seal.
My commission expires:
______________________________
Notary Public
EXHIBIT "A"
PERSONAL PROPERTY - PHASE I
Leasing Office
3 4-Drawer (legal) file cabinets
1 4-Drawer lateral file cabinet
Apartment Appliances
51 Whirlpool Thin-Twin Washer/Dryer Units
232 Whirlpool Stoves
232 Whirlpool Refrigerators w/icemakers
232 Whirlpool Dishwashers
Lease Equipment
Automatic Laundry 14 washers & dryers 7/94-8/04
Together with an undivided 50% interest in and to the following:
Leasing Office
2 Olympia typewriters
1 Oak typewriter stand
1 Emerson am/fm cassette player
3 6' tables
1 Canon MP 21D (New as of 10/94)
1 Casio calculator
1 Copier stand
1 Marvel 2 1/2 cu ft refrigerator
1 Xerox Model 5014 copier
Telephone equipment
Pool Equipment
6 Trash receptacles
21 Chairs
6 Tables
38 Chaise lounges
2 Pool covers
2 Pool test kits
Pool cleaning/maintenance tools
Power Equipment
2 Snow blowers
1 6" Bench Grinder
1 Key machine
1 Makita Saws-All
1 1/2 HP Graco airless paint sprayer
1 10" Table saw/stand
1 Skil 3/8" Drill
1 Freon recovery pump
1 Submersible pump
1 5-gallon wet/dry vac
2 Eureka vacuum cleaners
Other Equipment & Hand Tools
1 Cutting torch
1 Benz-o-matic torch
1 Multitester
1 Lock repin set
1 3 ft sewer snake
2 50' extension cords
1 5' Aluminum ladder
1 50' Aluminum ladder
2 2-step ladders
1 Wheelbarrow
1 Post hole digger
1 18" rigid pipe wrench
1 24" rigid pipe wrench
1 Wrench & socket set
4 Walkie-talkies
1 Fertilizer spreader
1 Husky push type carpet sweeper
4 Back support belts
1 Hazardous chemical storage unit
1 Artificial Christmas tree
Miscellaneous brooms, shovels, hoes & rakes
Lease Equipment
Cort Furniture Office Furniture Month to month
Luxury Rental Ctr Model Apt furniture Month to month
FIRST AMENDMENT TO
PURCHASE AGREEMENT FOR BRITTANY DOWNS APARTMENTS
THIS FIRST AMENDMENT ("Amendment") is made and entered into as of
December 22, 1994, by and between CARLYLE/BRITTANY DOWNS ASSOCIATES, an
Illinois general partnership ("Seller"). GRAOCH ASSOCIATES #19 LIMITED
PARTNERSHIP, a Washington limited partnership ("Graoch 19") and GRAOCH
ASSOCIATES #20 LIMITED PARTNERSHIP, a Washington limited partnership
("Graoch 20").
WHEREAS Seller and Graoch 20 previously enterred into that certain
Purchase Agreement, dated as of November 16, 1994, as amended (the
"Agreement"), relating to the purchase and sale of certain real property
known as Phase I and Phase II of the Brittany Downs Apartments ("Phase I"
and "Phase II" respectively) and as legally described on Exhibit A attached
hereto (collectively, the "Project");
WHEREAS the Buyer has requested that, in order to comply with relevant
financing requirements, each phase of the Project be separately sold to a
different single-asset buyer, and the Seller is willing to cooperate in
connection therewith as hereinafter set forth; and
WHEREAS the parties desire to amend the Agreement to provide that
Phase I shall be purchased by Graoch 19 and Phase II shall be purchased by
Graoch 20 on the following terms and conditions;
THEREFORE, for good and valuable consideration, the receipt of which
is acknowledged, the undersigned hereby agree to the following amendments
to the Agreement:
1. The term "Buyer" as defined in the Agreement shall collectively
mean Graoch 19 and Graoch 20, jointly and severally. Graoch 19 hereby
assumes certain obligations of Buyer under the Agreement, and certain
rights of the Buyer under the Agreement are hereby assigned to Graoch 19,
in accordance with the following terms.
2. Section 1 of the Agreement is amended to provide that (1) Graoch
19 shall purchase, and the Seller shall sell to Graoch 19, the Phase I
Land, those Improvements located thereon, and all portions of the Property
which relates to the ownership or operation of the Project on Phase I
(collectively, the "Phase I Property"), and (ii) Graoch 20 shall purchase,
and the Seller shall sell to Graoch 20, the Phase II Land, those
improvements located thereon, and all portions of the Property which relate
to the ownership or operation of the Project on Phase II (collectively, the
"Phase II Property"). On or before Closing, segregated descriptions of
each component of property comprising the Property, and separate conveyance
documentation, as necessary to permit Graoch 19 to purchase the Phase I
Property and Graoch 20 to purchase the Phase II Property, (including
without limitation, segregated Personal Property liens, Contract liens,
Owner's Policies, Deeds, Assignment and Assumption Agreements, Phase I and
Phase II Bond Assignment and Assumption Agreements and Closing
Certificates) shall be prepared anddelivered. Buyer shall have the right to
obtain separate updated Title Commitments and Updated Surveys at its sole cost
and expense. Any additional costs (i.e., costs in excess of that which would
have been incurred had the Agreement not been amended to separate the
transactions as contemplated herein), including additional title costs, shall
be borne by Graoch 19 and Graoch 20.
3. Section 2 of the Agreement is amended to provide that the
Purchase Price shall consist of: $9,190,000 to be paid by Graoch 19 for the
purchase of the Phase I Property, and $9,190,000 to be paid by Graoch 20
for the purchase of the Phase II Property.
4. Section 3.A. of the Agreement is amended to provide that the
Initial Escrow Deposit (the timely deposit of which is acknowledged by
Seller) shall be divided into two separate escrow accounts, one of which
shall continue a separate deposit under the Agreement to be credited at
Closing against the purchase of the Phase I Property, and the other shall
constitute a separate deposit under the Agreement to be credited at Closing
against the purchase of the Phase II Property. In addition, the Additional
Escrow Deposit shall be paid in the sum of $125,000 by Graoch 19 as a
deposit against the purchase of the Phase I Property, and in the sum of
$125,000 by Graoch 20 as a deposit against the purchase of the Phase II
Property. Notwithstanding anything to the contrary contained herein, if
Seller shall be entitled to either deposit (as so separated), then Seller
shall be entitled to both deposits (whether the other buying entity shall
be in default or not), it being understood and agreed that the default by
one of the buying entitles shall constitute the default of both.
5. Section 3.B of the Agreement is amended to provide that, in
partial payment of that portion of the Purchase Price pertaining to Phase
I, Graoch 19 shall assume at Closing the obligations of the Seller under
the Phase I Bond Documents pursuant to the Phase I Bond Assignment and
Assumption Agreement. Section 3.C of the Agreement is amended to provide
that, in partial payment of that portion of the Purchase Price pertaining
to Phase II, Graoch 20 shall assume at Closing the obligations of the
Seller under the Phase II Bond Documents pursuant to the Phase II Bond
Assignment and Assumption Agreement.
6. Section 3.D of the Agreement is amended to provide that the
Closing Payment shall consist of (i) the $2,210,000 balance of the Purchase
Price for the Phase I Property (i.e., the $9,190,000 Phase I Purchase Price
minus the $6,980,000 Outstanding Phase I Bond Amount), to be paid by Graoch
19: and (ii) the $1,830,000 balance of the Purchase Price for the Phase II
Property (i.e., the $9,190,000 Phase II Purchase Price minus the $7,360,000
Outstanding Phase II Bond Amount), to be paid by Graoch 20, with both such
amounts appropriately adjusted by application of the Escrow Deposit and the
prorations and credits specified in the Agreement, as applicable to each
Phase separately.
7. Section 4 of the Agreement is amended to add the following:
"The simultaneous closing of the purchase and sale of the phase I Property
by Seller to Graoch 19 shall be a condition precedent to the obligations of
the Seller to sell and Graoch 20 to buy the Phase II Property. The
simultaneous closing of the purchase and sale of the Phase II Property by
Seller to Graoch 20 shall be a condition precedent to the obligations of
the Seller to sell and Graoch 19 to buy the Phase I Property."
8. Section 4.A.2 of the Agreement is amended to provide that the
Phase I Bond Documents shall be Permitted Exceptions only with respect to
the Owner's Policy related to Phase I, and the Phase II Bond Documents
shall be Permitted Exceptions only with respect to the Owner's Policy
related to Phase II.
9. The last sentence of the first paragraph of Section 5 of the
Agreement is amended to read, in its entirety, as follows: "As used
herein, "Closing Date" means January 4, 1994.
10. Section 5.C of the Agreement is amended be replacing all
reference to
endorsement nos. 100 and 100.20" with the phase "endorsement no. 130 and
116.1;" provided that the foregoing amendment shall not result in any
increase in the charges to the Seller under the Agreement.
11. Section 5.D of the Agreement is amended to provide that all
prorations shall calculated separately for Phase I Property and Phase II
Property.
12. Notwithstanding any terms herein to the contrary, the parties
agree that this amendment is not intended to, and shall not be constituted
to, modify the limitation on the aggregate liability of Seller imposed by
Section 10.B(1) of the Agreement.
13. The undersigned parties agree to all such additional amendments
to the Agreement that are reasonable necessary to implement the separation
of the transaction contemplated herein into a purchase by Graoch 19 of the
Phase I Property, and a purchase by Graoch 20 of the Phase II Property,
subject to and in the manner contemplated herein.
14. In consideration of the facts (i) that Graoch 19 and Graoch 20
have identical ownership and capital structure, (ii) that the closing of
the purchase by Graoch 19 of the Phase I Property, and the purchase by
Graoch 20 of the Phase II Property, is each conditioned on the simultaneous
closing of the other, and (iii) that such closings may require the grant of
one or more blanket encumbrances on both the Phase I Property and the Phase
II Property in favor of a lender funding a portion of the transaction
related to only one such Phase, Graoch 19 and Graoch 20 agree that, at the
discretion of the general partner, Graoch 19 and/or Graoch 20 may grant a
security interest in all or any part of such partnership's property for the
benefit of the other partnership, as necessary to facilitate the closings
contemplated under the Agreement as amended herein; provided that such
partnership shall indemnify, defend and hold the other partnership harmless
from and against all costs, expenses, claims and liabilities incurred in
connection with such pledging of property for the benefit of the other
partnership. The provision of this Section 14 are between Graoch 19 and
Graoch 20, and Seller is not to be concerned with, or be deemed a party to,
such provisions.
15. Unless indicated otherwise herein, all undefined capitalized
terms used in this Amendment shall have the meaning described to them in
the Agreement. Except as expressly amended herein, all terms and
conditions of the Agreement remain in full force and effect, without
modification. This Amendment may be executed in any number of
counterparts, by original or facsimile signature, and each counterpart
shall constituted an original instrument (whether or not all parties have
executed any one counterpart), but all such separate counterparts shall
constitute one and the same instrument.
IN WITNESS WHEREOF, Buyer and Seller have executed this Amendment as
of the date and year first written above.
CARLYLE/BRITTANY DOWNS GRAOCH ASSOCIATES #19 LIMITED
ASSOCIATES, an Illinois limited PARTNERSHIP, a Washington limited
partnership partnership
By: Carlyle Real Estate Limited By:BDA ASSOCIATES, L.P., a
Partnership -XIV, an Illinois Washington limited
limited partnership, partnership,
General Partner General Partner
By: JMB Realty Corporation, a Delaware
corporation, General Partner By:10425 SALES ROAD ASSOCIATES,
INC., a Washington corporation,
General Partner
By:
Name:
Title: By:
Gary M. Gray, President
GRAOCH 20:
GRAOCH ASSOCIATES #20 LIMITED
PARTNERSHIP, a Washington
limited partnership
By:BDA ASSOCIATES, L.P., a
Washington limited
partnership,
General Partner
By: 10425 SALES ROAD ASSOCIATES,
INC., a Washington corporation,
General Partner
By:
Gary M. Gray, President
April 13, 1994
Mr. Keith Harris
JMB/Carlyle
900 North Michigan Avenue
Chicago, IL 60611-1575
Re: Carlyle Brittany Associates
BEI Loan #1140219000
Dear Keith:
Subsequent to our discussions, I the following items have been approved by
the RTC Mortgage Trust 1992-N1 as a basis for the marketing of Phase I and
II of Brittany:
1. the two phases are to be marketed together, but separately
priced so as to maximize the highest value to a prospective purchaser;
2. the Trust will accept a release price of $8,250,000 net of
expenses for Phase II;
3. the two (2) properties will be listed with a Denver brokerage
firm who has shown the ability to close transactions in the Denver market;
4. the term of the listing agreement will not exceed one hundred
eighty (180) days commencing April 1, 1994;
5. all offers are to be presented to you as the representative of
Carlyle/Brittany, and to me as the representative of the RTC Mortgage Trust
1992-N1;
6. should marketing the two properties not provide an offer within
the approved price range, approval must be given by both the Trust and
Carlyle/Brittany prior to acceptance;
7. JMB Property Management will be responsible for providing
operating history, property inventory, as-built surveys, tax bills, list of
outside contractors, gas proration recap, information regarding the
judgement against the pipe manufacturer in Phase II, and all other
information sought by a potential purchaser, and
8. Carlyle/Brittany will continue to make monthly payments through
the date of closing.
I look forward to a successful marketing campaign so that this matter can
finally be concluded.
This letter is revised to reflect all the terms and conditions, and it is
understood that all previous correspondence relative to the terms are no
longer to be considered.
Should you have any questions or comments, please give me a call.
Yours very truly,
BEI Management, Inc.
Charles R. Birkelbach
Senior Asset Manager
