UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-Q
(Mark One)
X QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
FOR THE QUARTERLY PERIOD ENDED MARCH 31, 1996
OR
TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
For the transition period from to
Commission file number 0-14466
CONNECTICUT GENERAL REALTY INVESTORS III LIMITED PARTNERSHIP
(Exact name of registrant as specified in its charter)
Connecticut 06-1115374
(State of Organization) (I.R.S. Employer Identification No.)
900 Cottage Grove Road, South Building
Bloomfield, Connecticut 06002
(Address of principal executive offices)
Telephone Number: (860) 726-6000
Indicate by check mark whether the Registrant (1) has filed all reports required
to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during
the preceding 12 months (or for such shorter period that the Registrant was
required to file such reports), and (2) has been subject to such filing
requirements for the past 90 days.
Yes X No
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PART I - FINANCIAL INFORMATION
CONNECTICUT GENERAL REALTY INVESTORS III LIMITED PARTNERSHIP
(A CONNECTICUT LIMITED PARTNERSHIP)
BALANCE SHEETS
<S> <C> <C>
MARCH 31, DECEMBER 31,
1996 1995
ASSETS (UNAUDITED) (AUDITED)
Property and improvements, at cost:
Land and land improvements $ 6,119,148 $ 6,119,148
Buildings 30,627,074 30,577,342
Furniture and fixtures 2,224,228 2,206,128
--------------- ---------------
38,970,450 38,902,618
Less accumulated depreciation 12,997,506 12,770,211
--------------- ---------------
Net property and improvements 25,972,944 26,132,407
Cash and cash equivalents 2,764,353 2,481,123
Accounts receivable (net of allowance of $5,767
in 1996 and $8,671 in 1995) 9,013 7,694
Escrow deposits 209,198 281,236
Prepaid insurance 19,012 --
Other asset 1,000 1,000
Deferred charges, net 1,279,853 1,329,140
Escrowed debt service funds 506,660 506,660
--------------- ---------------
Total $ 30,762,033 $ 30,739,260
=============== ===============
LIABILITIES AND PARTNERS' CAPITAL (DEFICIT)
Liabilities:
Notes and mortgages payable $ 29,277,578 $ 29,347,622
Accounts payable and accrued expenses (including $19,744
in 1996 and $10,001 in 1995 due to affiliates) 384,071 361,508
Accrued interest payable (including $17,000 due to affiliates
in 1996 and 1995) 72,946 72,946
Tenant security deposits 169,686 169,396
Unearned income 28,239 25,973
--------------- ---------------
Total liabilities 29,932,520 29,977,445
--------------- ---------------
Partners' capital (deficit):
General Partner:
Capital contributions 1,000 1,000
Cumulative net loss (102,088) (102,765)
Cumulative cash distributions (13,355) (13,355)
--------------- ---------------
(114,443) (115,120)
--------------- --------------
Limited partners (24,856 Units)
Capital contributions, net of offering costs 22,408,052 22,408,052
Cumulative net loss (20,130,946) (20,197,967)
Cumulative cash distributions (1,333,150) (1,333,150)
--------------- ---------------
943,956 876,935
--------------- ---------------
Total partners' capital 829,513 761,815
--------------- ---------------
Total $ 30,762,033 $ 30,739,260
=============== ===============
The Notes to Financial Statements are an integral
part of these statements.
2
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CONNECTICUT GENERAL REALTY INVESTORS III LIMITED PARTNERSHIP
(A CONNECTICUT LIMITED PARTNERSHIP)
STATEMENTS OF OPERATIONS
FOR THE THREE MONTHS ENDED MARCH 31, 1996 AND 1995
(Unaudited)
<S> <C> <C>
1996 1995
---- ----
Income:
Rental income $ 1,385,250 $ 1,318,519
Other income 41,992 35,813
Interest income 40,069 31,297
--------------- ---------------
1,467,311 1,385,629
--------------- ---------------
Expenses:
Property operating expenses 361,735 369,983
General and administrative 186,289 191,328
Fees and reimbursements to affiliates 24,300 23,419
Interest expense (includes $17,000 for 1996 and 1995 to affiliates) 550,707 548,264
Depreciation and amortization 276,582 327,244
--------------- ---------------
1,399,613 1,460,238
--------------- ---------------
Net income (loss) $ 67,698 $ (74,609)
=============== ===============
Net income (loss):
General Partner $ 677 $ (746)
Limited partners 67,021 (73,863)
--------------- ---------------
$ 67,698 $ (74,609)
=============== ===============
Net income (loss) per Unit $ 2.70 $ (2.97)
=============== ===============
The Notes to Financial Statements are an integral
part of these statements.
3
</TABLE>
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<TABLE>
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CONNECTICUT GENERAL REALTY INVESTORS III LIMITED PARTNERSHIP
(A CONNECTICUT LIMITED PARTNERSHIP)
STATEMENTS OF CASH FLOWS
FOR THE THREE MONTHS ENDED MARCH 31, 1996 AND 1995
(Unaudited)
<S> <C> <C>
1996 1995
---- ----
Cash flows from operating activities:
Net income (loss) $ 67,698 $ (74,609)
Adjustment to reconcile net income (loss) to net cash
provided by operating activities:
Depreciation and amortization 276,582 327,244
Accounts receivable (1,319) 11,273
Accounts payable 17,475 45,954
Accrued interest payable -- (614)
Escrow deposits 72,038 (4,247)
Other, net (16,456) 60,047
--------------- ---------------
Net cash provided by operating activities 416,018 365,048
--------------- ---------------
Cash flows from investing activities:
Purchase of property and improvements (62,744) (81,136)
--------------- ---------------
Cash flows from financing activities:
Proceeds from notes and mortgage loans -- 5,300,000
Repayment of notes and mortgage loans (70,044) (5,325,991)
Payment of financing costs -- (99,398)
--------------- ---------------
Net cash used in financing activities (70,044) (125,389)
--------------- ---------------
Net increase in cash and cash equivalents 283,230 158,523
Cash and cash equivalents, beginning of year 2,481,123 1,662,708
--------------- ---------------
Cash and cash equivalents, end of period $ 2,764,353 $ 1,821,231
=============== ===============
Supplemental disclosure of cash information:
Interest paid during period $ 550,707 $ 548,878
=============== ===============
Supplemental disclosure of non-cash information:
Accrued purchases of property and improvements $ 51,029 $ --
=============== ==============
The Notes to Financial Statements are an integral
part of these statements.
4
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CONNECTICUT GENERAL REALTY INVESTORS III LIMITED PARTNERSHIP
(A CONNECTICUT LIMITED PARTNERSHIP)
NOTES TO FINANCIAL STATEMENTS
(Unaudited)
Readers of this quarterly report should refer to CONNECTICUT GENERAL REALTY
INVESTORS III LIMITED PARTNERSHIP'S (the "Partnership") audited financial
statements for the year ended December 31, 1995 which are included in the
Partnership's 1995 Annual Report, as certain footnote disclosures which would
substantially duplicate those contained in such audited financial statements
have been omitted from this report.
1. BASIS OF ACCOUNTING
A) BASIS OF PRESENTATION: The accompanying financial statements were prepared
in accordance with generally accepted accounting principles, and reflect
management's estimates and assumptions that affect the reported amounts. It
is the opinion of management that the financial statements presented
reflect all the adjustments necessary for a fair presentation of the
financial condition and results of operations.
B) RECENT ACCOUNTING PRONOUNCEMENT: In 1995, the Financial Accounting
Standards Board issued Statement of Financial Accounting Standards No. 121,
"Accounting for the Impairment of Long-Lived Assets and for Long-Lived
Assets to be Disposed Of" (the "Statement"). The Statement requires a
writedown to fair value when long-lived assets to be held and used are
impaired. Long-lived assets to be disposed of, including real estate held
for sale, must be carried at the lower of cost or fair value less costs to
sell. In addition, the Statement prohibits depreciation of long-lived
assets to be disposed. The Partnership adopted the Statement in the first
quarter of 1996. During the first quarter, no depreciation was recorded for
the Partnership's property held for sale, Stewart's Glen III.
C) CASH AND CASH EQUIVALENTS: Short term investments with a maturity of three
months or less at the time of purchase are reported as cash equivalents.
2. NOTES AND MORTGAGES PAYABLE
In March 1996, the mortgage note for Stewart's Glen III was extended from
April 1, 1996 to May 1, 1996 with an option for an additional extension to July
1, 1996 subject to certain conditions including the execution of a purchase and
sale agreement, in order for the Partnership to complete a sale of the property.
On April 30, 1996, the Partnership completed the sale of Stewart's Glen III and
retired the related mortgage note. The Partnership's $3,400,000 promissory note
was paid in full on May 15, 1996.
3. DEFERRED CHARGES
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Deferred charges consist of the following:
<S> <C> <C>
March 31, December 31,
1996 1995
Surety fee - Waterford Apartments mortgage note $ 963,910 $ 963,910
Costs of obtaining financing 845,127 845,127
--------------- ---------------
1,809,037 1,809,037
Accumulated amortization (529,184) (479,897)
---------------- ----------------
$ 1,279,853 $ 1,329,140
=============== ===============
5
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CONNECTICUT GENERAL REALTY INVESTORS III LIMITED PARTNERSHIP
(A CONNECTICUT LIMITED PARTNERSHIP)
NOTED TO FINANCIAL STATEMENTS (CONTINUED)
(UNAUDITED)
4. TRANSACTIONS WITH AFFILIATES
The Partnership's promissory note payable is guaranteed by an affiliate of
the General Partner for an annual fee of 2% on the outstanding balance.
Other fees and expenses related to the General Partner or its affiliates
are as follows:
<TABLE>
<CAPTION>
Three Months Ended Unpaid at
MARCH 31, MARCH 31,
--------- ---------
<S> <C> <C> <C>
1996 1995 1996
---- ---- ----
Property management fee (a) $ 11,405 $ 10,509 $ 7,630
Reimbursement (at cost) for
out-of-pocket expenses 12,895 12,910 12,114
------------- ------------- -------------
$ 24,300 $ 23,419 $ 19,744
============= ============= =============
</TABLE>
(a) Does not include on-site property management fees earned by independent
property management companies of $60,236 and $56,253 for the three months
ended March 31, 1996 and 1995 respectively. On-site property management
services have been contracted by an affiliate of the General Partner on
behalf of the Partnership and are paid directly by the Partnership to the
third party companies.
5. SUBSEQUENT EVENT
On April 30, 1996, the Partnership completed the sale of Stewart's Glen III
to AMLI Residential Properties, L.P. for a gross sales price of $7,853,900.
After closing costs and payment of the first mortgage loan obligation, the
Partnership netted approximately $2,890,000. For book purposes, the property had
a carrying value of approximately $5,326,000 and the Partnership expects to
record a gain of approximately $2,426,000. The Partnership utilized the net
proceeds from the sale and the Partnership's cash and cash equivalents to retire
the Partnership's $3,400,000 promissory note on May 15, 1996.
6
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CONNECTICUT GENERAL REALTY INVESTORS III LIMITED PARTNERSHIP
(A CONNECTICUT LIMITED PARTNERSHIP)
MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL
CONDITION AND RESULTS OF OPERATIONS
LIQUIDITY AND CAPITAL RESOURCES
At March 31, 1996, the Partnership had $2,764,000 in cash and cash
equivalents which was available for working capital requirements, payment of
liabilities, and the Partnership's cash reserves. The portfolio generated
positive adjusted cash from operations after debt service, capital improvements
and partnership expenses for the three months ended March 31, 1996 of
approximately $200,000.
During the first quarter, the Partnership executed a letter of intent for
the sale of the Stewart's Glen Apartments. In addition, the Partnership arranged
a short-term extension of the Stewart's Glen mortgage maturity date to complete
the sale. The sale was completed on April 30, 1996 to AMLI Residential, L.P. for
a gross sales price of $7,853,900. After closing costs and payment of the first
mortgage, the Partnership netted approximately $2,890,000. The Partnership
expects to record a gain on the sale for both book and tax purposes.
On May 15, 1996, the Partnership utilized the net proceeds from the
Stewart's Glen sale together with approximately $510,000 from the Partnership's
cash reserves to retire the Partnership's $3,400,000 Mellon Bank promissory
note.
RESULTS OF OPERATIONS
Rental income increased approximately $67,000 for the three months ended
March 31, 1996, as compared with the same period of 1995. Higher average
occupancy and an increase in rental rates at Waterford Apartments, Stonebridge
Manor and Versailles Village led to increases in rental income of approximately
$38,000, $22,000 and $6,000, respectively. Modest rate increases offset a
nominal decrease in average occupancy at Stewart's Glen.
Other income increased for the three months ended March 31, 1996, as
compared with the same period of 1995, due to higher lease break fees at
Stewart's Glen and Stonebridge Manor.
The increase in interest income for the three months ended March 31, 1996,
as compared with the same period of 1995, was the result of a higher average
cash balance offset by a slight decrease in interest rates on short term
investments.
Property operating expenses decreased slightly for the three months ended
March 31, 1996, as compared with the same period of 1995, due to fewer carpet
and vinyl replacements at Stonebridge.
The decrease in general and administrative expense for the three months
ended March 31, 1996, as compared with the same period of 1995, was the result
of a net decrease in the provision for doubtful accounts.
Depreciation and amortization decreased for the three months ended March
31, 1996, as compared with the same period of 1995. Financial Accounting
Standards No. 121, adopted by the Partnership in the first quarter of 1996,
prohibits depreciation of long-lived assets to be disposed. Accordingly,
depreciation was not recorded for Stewart's Glen in the first quarter of 1996 as
the property was held for sale. Partially offsetting the decrease was increased
amortization of financing costs due to the April 1, 1995 Stonebridge Manor first
mortgage refinance.
7
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CONNECTICUT GENERAL REALTY INVESTORS III LIMITED PARTNERSHIP
(A CONNECTICUT LIMITED PARTNERSHIP)
MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL
CONDITION AND RESULTS OF OPERATIONS (CONTINUED)
OCCUPANCY
The following is a listing of approximate physical occupancy levels by
quarter for the Partnership's investment properties:
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<CAPTION>
1995 1996
------------------------------------------------- -----------
<S> <C> <C> <C> <C> <C>
AT 3/31 AT 6/30 AT 9/30 AT 12/31 AT 3/31
------- ------- ------- -------- -------
1. Versailles Village Apartments
Forest Park, Ohio 97% 99% 96% 94% 97%
2. Waterford Apartments
Tulsa, Oklahoma 90% 96% 98% 92% 94%
3. Stonebridge Manor Apartments
New Orleans, Louisiana 96% 97% 96% 98% 97%
4. Stewart's Glen Apts. Phase III
Willowbrook, Illinois 96% 89% 98% 97% 89%
</TABLE>
PART II- OTHER INFORMATION
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K
(a) Exhibits:
10(z) Agreement of Purchase and Sale for Stewart's Glen I, II and
III dated April 30, 1996 between CIGNA/Willowbrook Associates
Limited Partnership, CIGNA/Willowbrook II Associates Limited
Partnership, Connecticut General Realty Investors III Limited
Partnership and AMLI Residential, L.P.
27 Financial Data Schedules.
(b) No Form 8-Ks were filed during the three months ended March 31, 1996.
8
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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.
CONNECTICUT GENERAL REALTY INVESTORS III
LIMITED PARTNERSHIP
By: CIGNA Realty Resources, Inc. - Fifth,
General Partner
Date: MAY 15, 1996 By: /S/ JOHN D. CAREY
------------- -----------------
John D. Carey, President and Controller
(Principal Executive Officer)
(Principal Accounting Officer)
9
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<TABLE> <S> <C>
<ARTICLE> 5
<S> <C>
<FISCAL-YEAR-END> DEC-31-1996
<PERIOD-END> MAR-31-1996
<PERIOD-TYPE> 3-MOS
<CASH> 2764353
<SECURITIES> 0
<RECEIVABLES> 14780
<ALLOWANCES> 5767
<INVENTORY> 0
<CURRENT-ASSETS> 0
<PP&E> 38970450
<DEPRECIATION> 12997506
<TOTAL-ASSETS> 30762033
<CURRENT-LIABILITIES> 0
<BONDS> 29277578
<COMMON> 0
0
0
<OTHER-SE> 0
<TOTAL-LIABILITY-AND-EQUITY> 30762033
<SALES> 0
<TOTAL-REVENUES> 1467311
<CGS> 0
<TOTAL-COSTS> 572324
<OTHER-EXPENSES> 276582
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 550707
<INCOME-PRETAX> 0
<INCOME-TAX> 0
<INCOME-CONTINUING> 67698
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 67698
<EPS-PRIMARY> 0
<EPS-DILUTED> 0
</TABLE>
Exhibit 10(z)
STEWART'S GLEN I, II, AND III
AGREEMENT OF PURCHASE AND SALE
BETWEEN
CIGNA/WILLOWBROOK ASSOCIATES LIMITED PARTNERSHIP,
CIGNA/WILLOWBROOK II ASSOCIATES LIMITED PARTNERSHIP,
AND CONNECTICUT GENERAL REALTY INVESTORS III
LIMITED PARTNERSHIP
SELLERS
AND
AMLI RESIDENTIAL PROPERTIES, L.P., PURCHASER
K:\RE\AJP\STEWGLEN\P&SAGMT.009 (4-24-96)
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TABLE OF CONTENTS
Page
<S> <C> <C>
Article 1 Property 1
Article 2 Purchase Price and Deposits 3
Article 3 Failure to Close 4
3.1 Purchaser's Default 4
3.2 Seller's Default 4
3.3 Entire Property 5
Article 4 Closing and Transfer of Title 5
4.1 Closing 5
4.2 Closing Procedure 5
4.3 Purchaser's Performance 8
4.4 Evidence of Authority; Miscellaneous 9
Article 5 Prorations of Rents, Taxes, Etc. 9
Article 6 Purchaser Inspections and Contingencies 11
6.1 Purchaser's Inspections 11
6.2 Purchaser's Indemnity 14
6.3 Feasibility Period 14
6.4 Survey Contingency 14
6.5 Title Contingency 16
Article 7 Loss due to Casualty or Condemnation 17
7.1 Loss due to Condemnation 17
7.2 Loss due to Casualty 18
Article 8 Maintenance of the Property 19
Article 9 Broker 20
Article 10 Representations and Warranties 21
10.1 Limitations on Representations and Warranties 21
10.2 Representations and Warranties of Seller 21
10.3 Seller's Knowledge 25
10.4 Survival 25
10.5 Seller's Liability 26
Article 11 Liability of Seller 26
Article 12 Assignment 27
Article 13 Notices 27
Article 14 Expenses 28
K:\RE\AJP\STEWGLEN\P&SAGMT.009 (4-24-96)
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TABLE OF CONTENTS (Continued)
Page
Article 15 Miscellaneous 29
15.1 Successors and Assigns 29
15.2 Gender 29
15.3 Captions 29
15.4 Construction 29
15.5 Entire Agreement 29
15.6 Recording 29
15.7 No Continuance 30
15.8 Time of Essence 30
15.9 Original Document 30
15.10 Governing Law 30
15.11 Acceptance of Offer 30
15.12 Confidentiality 30
15.13 Covenants Surviving Termination of this Agreement 31
Exhibit A - Description of Land
Exhibit B - Rent Roll
Exhibit C - Special Warranty Deed
Exhibit D - Bill of Sale
Exhibit E - Assignment of Leases
Exhibit F - Indemnification Agreement
Exhibit G - Form of Seller's Affidavit of
Non-Foreign Status
Exhibit H - Pending Litigation
Exhibit I - List of Service Contracts
Exhibit J - Survey Contract
</TABLE>
K:\RE\AJP\STEWGLEN\P&SAGMT.009 (4-24-96)
<PAGE>
AGREEMENT OF PURCHASE AND SALE
THIS AGREEMENT OF PURCHASE AND SALE (the "Agreement') is made by and
between CIGNA/Willowbrook Associates Limited Partnership, a Delaware limited
partnership ("CWA"), CIGNA/Willowbrook II Associates Limited Partnership, a
Delaware limited partnership ("CWA II"), and Connecticut General Realty
Investors III Limited Partnership, a Connecticut limited partnership ("CGRI
III") (collectively, the "Sellers" and each individually, a "Seller"), and AMLI
Residential Properties, L.P., a Delaware limited partnership ("Purchaser"), as
of the "Effective Date" (which for purposes of this Agreement shall be the date
of Purchaser's depositing the Initial Deposit, as hereinafter defined, with the
Title Company, as hereinafter defined).
Article I.
Property
Sellers hereby agree to sell, and Purchaser hereby agrees to buy, all,
and not less than all, of the following property: (a) three parcels of real
property (the "Land"), located in the County of DuPage, State of Illinois, more
particularly described as "Stewart's Glen I", "Stewart's Glen II", and
"Stewart's Glen III" on Exhibit A attached to this Agreement together with all
of Seller's rights in and to any rights, benefits, privileges, easements,
tenements, hereditaments and appurtenances thereon or appertaining to such Land,
and all right, title and interest of the Sellers in and to all strips and gores
and any land lying in the bed of any street, road, or alley, open or proposed,
adjoining any portion of such Land; (b) the buildings and other improvements
located on the Land, being three apartment complexes known as Stewart's Glen I,
a 200 unit apartment complex, Stewart's Glen II, a 184 unit apartment complex,
and Stewart's Glen III, a 104 unit apartment complex, including, without
limitation, all heating, ventilation, electrical, plumbing, and other mechanical
and operational systems owned by Sellers and used in connection with Sellers'
ownership operation, or management of the Real
K:\RE\AJP\STEWGLEN\P&SAGMT.009 (4-24-96) Page 1
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Property (the "Improvements"); (c) all tenant leases relating to the
Improvements, being the leases referred to on the Rent Roll attached hereto as
Exhibit B (the Land, Improvements, and tenant leases are referred to herein,
collectively, as the "Real Property"); and (d) all fixtures, equipment,
machinery, furniture, furnishings, supplies and other personal property (both
tangible and intangible, including, without limitation, any service and
maintenance agreements applicable thereto which Purchaser agrees to assume in
accordance with this Agreement), owned by Sellers and contained in and used in
connection with Sellers' ownership, operation, or management of the Real
Property, and all intangible personal property related to the Real Property,
including, without limitation, all Seller's rights and interests, if, and to the
extent Sellers have such rights and interests, and to the extent such rights and
interests are assignable to Purchaser, in (i) the name "Stewart's Glen", (ii)
the plans and specifications and other architectural and engineering drawings
for the Improvements, (iii) contract rights related to the construction,
operation, ownership, or management of the Real Property pursuant to contracts
assigned to and/or assumed by Purchaser in accordance with this Agreement, (iv)
warranties, zoning approvals, and licenses, and (v) tenant lists, correspondence
with tenants, and records, booklets, manuals, advertising and promotional
materials, correspondence with suppliers, and telephone exchange numbers,
relating to the Real Property (the "Personal Property") (collectively, the Real
Property and the Personal Property are sometimes referred to herein as the
"Property").
The Purchaser hereby acknowledges that Stewart's Glen I is owned by
CWA, that Stewart's Glen II is owned by CWA II, and that Stewart's Glen III is
owned by CGRI III, and notwithstanding any other provision of this Agreement,
Purchaser acknowledges and agrees that in no event shall any of CWA, CWA II, or
CGRI III have any obligation under this Agreement or incur any liabilities to
Purchaser under this Agreement with respect to matters relating to any portion
of the Property not owned by such Seller.
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<PAGE>
Article II.
Purchase Price and Deposits
The purchase price which the Purchaser agrees to pay and the Sellers
agree to accept for the Property shall be the sum of Thirty-Six Million Five
Hundred Forty-Two Thousand Five Hundred Dollars ($36,542,500.00) (hereinafter
referred to as the "Purchase Price"), subject to adjustment as provided in
Article V hereof, payable as follows:
(a) An earnest money deposit (the "Deposit") of Five Hundred
Thousand Dollars ($500,000), in cash, to be deposited with Chicago
Title & Trust Company (the "Title Company") within one (1) business day
after execution hereof by both parties, such amount to be held in
escrow and deposited in an interest-bearing account pursuant to terms
mutually acceptable to Sellers and Purchaser; and
(b) The balance of the Purchase Price (plus or minus prorations
calculated pursuant to Article V hereof) shall be paid at time of
Closing by Federal wire transfer or other immediately available funds,
with the transfer of funds to Seller to be completed on the day of the
Closing.
The Deposit shall be paid to Sellers at the Closing as a credit against
the Purchase Price. Purchaser shall provide the Title Company with its tax
identification number for tax purposes. All interest shall be for Purchaser's
account.
The Purchase Price shall be allocated to the Sellers as follows:
a) CWA: $14,835,900.00
b) CWA II: $13,852,700.00
c) CGRI III: $7,853,900.00
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Article III.
Failure to Close
3.1 Purchaser's Default. If Sellers have complied with all of the
covenants and conditions contained herein and are ready, willing and able to
convey the Property in accordance with this Agreement and Purchaser fails to
consummate this Agreement and take title, then the parties hereto recognize and
agree that the damages that Sellers will sustain as a result thereof will be
substantial, but difficult if not impossible to ascertain. Therefore, the
parties agree that, in the event of Purchaser's default, Sellers shall, as their
sole remedy, be entitled to retain the Deposit as liquidated damages, and
neither party shall have any further rights or obligations with respect to the
other under this Agreement, except for the Surviving Covenants (hereinafter
defined).
3.2 Sellers' Default. In the event that Purchaser has complied with all
of the covenants and conditions contained herein and is ready, willing and able
to take title to the Property in accordance with this Agreement, and Sellers
fail to convey title to Purchaser in accordance with Section 4.2 hereof, then
the parties hereto recognize that the damages that Purchaser will sustain as a
result thereof will be substantial, but difficult if not impossible to
ascertain. Therefore, the parties agree that, in the event of Sellers' failure
to convey title at the Closing in accordance with Section 4.2 hereof, Purchaser
shall, as its sole remedy, be entitled to terminate this Agreement, recover the
Deposit, and recover $500,000 from Sellers as liquidated damages, and neither
party shall have any further rights
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<PAGE>
or obligations with respect to the other under this Agreement, except for the
Surviving Covenants (hereinafter defined).
3.3 Entire Property. Notwithstanding anything contained to the
contrary, Sellers' obligation to sell and Purchaser's obligation to purchase the
Property is contingent upon the sale and purchase of the Property in its
entirety, and Seller shall not be obligated to convey less than all of the
Property, nor shall Purchaser be obligated to purchase less than all of the
Property.
Article IV.
Closing and Transfer of Title
4.1 Closing. The parties hereto agree to commence a closing of this
sale (the "Closing") on or before 9:00 a.m. on April 30, 1996 as such date may
be extended in accordance with the express provisions of this Agreement
("Closing Date") in the downtown Chicago office of the Title Company, or at such
other place as may be agreed upon by the parties hereto, with a pre-closing to
occur at 11:00 a.m. on April 29, 1996 in the offices of Goldberg, Kohn, Bell,
Black, Rosenbloom & Moritz, Ltd., 55 East Monroe Street, Suite 3700, Chicago,
Illinois. This Agreement shall terminate on the Closing Date if the Title
Company is not prepared to insure title in the Purchaser, or if immediately
available funds sufficient to complete the Closing are not on deposit with the
Title Company by 12:00 noon (unless such failure to close is due to Sellers'
default, the date for Closing is extended pursuant to any provision hereof,
including, without limitation, the matters described in Article VII hereof, or
the date for Closing is extended by agreement of the parties, which agreement
shall be confirmed in writing).
4.2 Closing Procedure. At the Closing, upon Purchaser's
satisfaction of all the conditions and requirements of this Agreement, Sellers
shall execute and deliver or cause to be delivered to Purchaser, or, in the
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case of those items covered by clauses (e), (i) and (j) below, to be available
to the Purchaser at the Property (a) Special Warranty Deeds, in the form
attached hereto as Exhibit C, proper for recording, conveying each Seller's
interest in the Real Property to Purchaser, subject, however, to (i) any and all
easements, rights of way, encumbrances, liens, covenants, restrictions, and
other matters of record, and to any and all matters shown on the Survey(s) (as
defined in Section 6.4 hereof) or which a current survey of the Property would
disclose, or otherwise disclosed in writing to Purchaser, except (A) existing
mortgage liens, mechanics and materialmen's liens attributable to Sellers'
period of ownership which Purchaser acknowledges may be satisfied, at Sellers'
election, by Sellers providing the Title Company with such assurances as it
requires of Sellers, or such of the Sellers as owns the Property subject to any
such lien, to insure over any such liens, and tax liens other than for taxes
which are not yet due and owing, disclosed in the Title Commitment obtained by
Purchaser in accordance with Section 6.5 hereof or appearing of record between
the date of the Title Commitment and the Closing Date, or (B) any voluntary
encumbrances permitted by Sellers from and after the date of the Title
Commitment and prior to the Closing Date, unless pursuant to and/or contemplated
by this Agreement, (ii) taxes not yet due and payable, (iii) the rights of
lessees and licensees of space in the Improvements at the time of Closing (all
to the extent shown on the Rent Roll), and (iv) any encumbrances created or
permitted by the terms of this Agreement; (b) a Bill of Sale in the form
attached hereto as Exhibit D, dated as of the date of Closing conveying to
Purchaser any and all Personal Property; (c) an Assignment of Leases in the form
attached hereto as Exhibit E, dated the date of Closing, assigning all of the
landlord's right, title and interest in and to any tenant and other leases
covering all or any portion of the Real Property; (d) Tenant Notification
Agreements (the "Tenant Notices"), dated the date of the Closing, executed by
Sellers, and complying with applicable statutes in order to relieve Sellers of
liability for tenant security deposits (provided the security deposits are paid
to Purchaser), notifying the tenants of the Real Property that the Property has
been sold to Purchaser and directing the tenants to pay rentals
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to Purchaser (or Purchaser's designated agent); (e) the originals of all leases
and maintenance and service contracts that are specifically assumed by Purchaser
pursuant to this Agreement, and to the extent in Sellers' possession or under
Sellers' control, or as are available to Sellers for the costs of duplication
and delivery only, as-built plans and specifications (it being understood that
the Sellers will terminate all management and leasing agreements affecting the
Property and all insurance policies covering the Property as of the Closing
Date); (f) an indemnification agreement (the "Indemnification Agreement") in the
form attached as Exhibit F, dated the date of Closing; (g) an updated Rent Roll,
in the form of the Rent Roll attached hereto as Exhibit B, dated within 5 days
prior to the date of the Closing; (h) an affidavit that Seller is not a "foreign
person" in the form attached as Exhibit G; (i) all master keys and/or duplicate
keys for all locks in the Improvements; (j) to the extent in the possession of
Sellers or Sellers' property management company, all maintenance records; (k)
such other documents, if any, as are required of Sellers to evidence the
inapplicability of IRPTA to the transactions described herein or otherwise
evidence Sellers' compliance with the requirements of IRPTA, as applicable; and
(l) such other documents reasonably requested by Purchaser, including transfer
declarations, bulk sales waivers as are required by law, or, in the event any
required bulk sales waivers have not been obtained by the Closing, Sellers'
indemnification of Purchaser of any liability for any payments later determined
to be due (Sellers hereby acknowledging and agreeing that final disbursements of
sales proceeds from the transactions contemplated by this Agreement will not be
made by Sellers until all payments required of Sellers as a condition to
obtaining any bulk sales waivers as are required by law have been made and any
required bulk sales waivers have been obtained, and that any such payments by
Sellers to obtain required bulk sales waivers shall not be deducted from the
$50,000 amount each Seller agrees to retain pursuant to Section 10.5 of this
Agreement), Sellers' broker and property manager lien waivers, and documents
required by the Title Company; provided that, with respect to (k) and (l) above,
none of the foregoing are inconsistent with Seller's Closing
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obligations expressly set forth in this Agreement, or create additional Closing
obligations on Seller other than are expressly set forth in this Agreement, or
give rise to any representations or warranties of Sellers in favor of Purchaser,
or, with the exception of broker and property manager lien waivers and any
certificates or statements required to be obtained by Sellers to comply with any
legal requirement which must be satisfied by Sellers as a condition their sale
of the Property, require Sellers to obtain execution thereof by any third party.
Purchaser acknowledges and agrees that Sellers are under no obligation
under the terms of this Agreement to clear from title any easements, rights of
way, encumbrances, liens, covenants, restrictions, or any other matters of
record except those items specifically referenced in clause a(i)(A) and (B) of
the immediately preceding paragraph, or to cure any Survey objections of
Purchaser, or to create any encumbrances on, or for the benefit of, the
Property. If Sellers fail to remove or cause the Title Company to insure over
any matter referenced in clause (a)(i)(A) or (B) of the immediately preceding
paragraph, Purchaser may at the Closing, as a part of the Closing escrow
instructions, instruct the Title Company to discharge and remove any such matter
and deduct such amounts required to effect such discharge and removal of all
such items, up to a maximum of $500,000 for any matter or item other than
existing mortgage liens in favor of Massachusetts Mutual Life Insurance Company,
and tax liens (other than for taxes which are not yet due and owing) as to which
the foregoing $500,000 limit shall not apply, from the Purchase Price. If,
subject only to the requirements of the immediately preceding sentence, Sellers
do not deliver title at Closing in form satisfactory to Purchaser, as approved
by Purchaser during the Feasibility Period, such failure shall not constitute a
breach of or default by Sellers hereunder, and notwithstanding any other
provision of this Agreement, Purchaser's sole and exclusive remedies shall be
either (i) to terminate this Agreement and receive a prompt return of the
Deposit, in which case no party hereto shall have any further obligations
pursuant to this Agreement except for the Surviving
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Covenants, or (ii) to accept conveyance by Sellers of such title as they deliver
to all, and not less than all, of the Property without reduction of the Purchase
Price.
4.3 Purchaser's Performance. At the Closing, Purchaser will cause the
Purchase Price to be delivered to the Title Company in immediately available
funds, will execute and deliver the Tenant Notices, the Indemnification
Agreement, the Assignment of Leases, the Bill of Sale, and such other documents
required of it pursuant to Section 4.2 of this Agreement.
4.4 Evidence of Authority; Miscellaneous. All parties will deliver to
the Title Company and each other such evidence or documents as may reasonably be
required by the Title Company or either party hereto evidencing the power and
authority of Seller and Purchaser and the due authority of, and execution and
delivery by, any person or persons who are executing any of the documents
required hereunder in connection with the sale of the Property. All parties will
execute and deliver such other documents as are reasonably required to effect
the intent of this Agreement.
Article V.
Prorations of Rents, Taxes, Etc.
Real estate taxes for tax years 1995 payable in 1996 and 1996 paybale
in 1997 shall be prorated as of the date of Closing using actual tax figures for
the 1995 tax year, and using as a basis for said proration for the 1996 tax year
the most recent assessed value of the Real Estate multiplied by 110% of the
current (1995) tax rate. Personal property taxes, annual permit (to the extent
any permits are transferred to Purchaser and required for the operation of the
Property) or inspection fees, sewer charges and other expenses normal to the
operation and maintenance of the Property shall also be prorated as of the date
of Closing. Rents that have been collected for the month of the Closing will be
prorated at the Closing, effective as of the date of the
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Closing. With regard to rents that are delinquent as of the date of the Closing,
(i) no proration will be made at the Closing, (ii) Purchaser will make a good
faith effort after the Closing to collect the rents in the usual course of
Purchaser's operation of the Property, and (iii) Purchaser will apply all rents
collected first to collection costs, if any, then to current rents and other
charges, if any, payable under the Leases and due to Purchaser, and the excess
amount, if any, shall be applied to the delinquent rent owed to Sellers. It is
agreed, however, that Purchaser will not be obligated to institute any lawsuit
or other collection procedures to collect delinquent rents. Rents collected by
Purchaser after the Closing Date, to which Sellers are entitled, shall be
promptly paid to Sellers.
As of the Closing Date, Purchaser shall be entitled to a credit for any
tenant deposits held under the leases.
Final readings on all gas, water and electric meters shall be made as
of the date of closing, if possible. If final readings are not possible, gas,
water and electricity charges will be prorated based on the most recent period
for which costs are available and re-prorated when actual bills for the period
issue. Any deposits made by Sellers with utility companies shall be returned to
Sellers. Purchaser shall be responsible for making all arrangements for the
continuation of utility services. After the Closing, Purchaser will assume full
responsibility for all security deposits and advance rental deposits of current
tenants of the Real Property currently held by Sellers and transferred to
Purchaser, which items will be itemized by Sellers and transferred and paid over
to Purchaser at the Closing.
All proration items (excluding taxes as to which the prorations
described in the first paragraph of this Article V are intended to be and shall
be deemed final prorations) that are not subject to an exact determination shall
be estimated by the parties at Closing. When any item so estimated is capable of
exact determination within sixty (60) days after the
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Closing, the party in possession of the facts necessary to make the
determination shall send the other party a detailed report on the exact
determination so made and the parties shall adjust the prior estimate within
thirty (30) days after both parties have received said reports. Any proration
items that are not capable of exact determination within sixty (60) days after
the Closing will be settled by the parties either at the Closing or at such time
within sixty (60) days after the Closing as it is ascertained that an exact
determination will not be possible within such sixty (60) day period following
the Closing.
Any and all prorations shall be calculated separately for each Seller
with respect to that portion of the Property owned by such Seller.
ARTICLE VI.
Purchaser Inspections and Contingencies
6.1 Purchaser's Inspections. During the Feasibility Period (as defined
in Section 6.3 hereof), Purchaser and its agents and contractors were afforded
the right to review, examine, and inspect the Property to Purchaser's sole
satisfaction. Purchaser acknowledges that such inspections, examinations, and
reviews included Purchaser's physical inspection of the Property in accordance
with Section 6.1(a) below, and its review, examination, and inspection of those
additional matters and items described in Sections 6.1(b) through (i) below to
the extent any such materials were in the Sellers' or Sellers' management
company's possession and were made available to Purchaser:
(a) Physical inspections of the entire Property, unit by unit,
including structural, mechanical, life-safety, engineering, civil,
landscaping, paving, plumbing, electrical and all other detail
inspections.
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(b) Examination of all architectural and construction items,
including as-built architectural, civil, electrical,
life-safety, mechanical and plumbing plans and
specifications, copies of any available construction and
engineering reports, whether internal or external,
certificates of completion from the project architect
and inspecting architect, certificates of occupancy,
building permits, evidence of compliance with fire code,
building code and other governmental or regulatory code
requirements and all other related use permits.
(c) Examination of all 1993, 1994, 1995, and year to date 1996
operating statements and supporting documentation with respect to
the Property, reflecting all detailed rental income, operating
expense accounts, and maintenance logs maintained for the
Property.
(d) Examination of all documentation maintained in current tenant
files, including leases, security deposit information, credit
reviews, tenant correspondence, and the standard form of apartment
lease in use at the Property.
(e) Examination of an environmental report prepared by Kaselaan &
D'Angelo Associates, Inc., dated January 12, 1988, and any and all
other environmental reports relating to the Property.
(f) Examination of available title commitments and surveys.
(g) Examination by Purchaser or Purchaser's designated
representative all financial books and records for the
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Property for the three (3) calendar years ending December 31,
1995, and to provide reasonable assistance at Purchaser's sole
cost and expense so as to permit preparation of such audited or
unaudited financial statements with respect to the Property as are
required to be prepared by Purchaser by the Rules and Regulations
of the Securities and Exchange Commission relating to its purchase
of the Property.
(h) Examination of real estate tax statements, service
contracts (whether or not being assumed), utility bills,
a listing of all capital improvements undertaken since
January 1, 1995, an inventory of all personal property
both tangible and intangible, and any and all written
notices received by or on behalf of Sellers from any
governmental body having legal jurisdiction with respect
to compliance of the Property with any and all
applicable laws, rules, ordinances or orders.
(i) Such other reviews and inspections as Purchaser deemed necessary;
provided, however, that Sellers were not required to provide
Purchaser with any projections or plans prepared by or at its
direction with respect to the Property.
Purchaser agrees that if for any reason the Closing is not consummated,
Purchaser will immediately return to Seller all materials furnished to Purchaser
pursuant to this Section 6.1.
Sellers shall continue to afford Purchaser, its employees, agents, and
independent contractors, access to the Property pending the Closing, at
reasonable times upon reasonable oral or written notice to Sellers' property
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manager, for Purchaser's convenience only, and not for the purpose of
Purchaser's conducting any additional feasibility inspections. Sellers shall
have the right to designate a representative of Sellers to accompany Purchaser,
or its employees, agents, and independent contractors on any Property visits or
inspections.
Purchaser acknowledges and agrees that Sellers' having delivered or
made available any information or documentation pursuant to this Article VI with
respect to the Property constitutes a good faith undertaking only, and does not
constitute a representation or warranty on the part of Sellers or any of them
with respect to any such information or documentation, Sellers' representations
and warranties being only as are expressly set forth in Article X, Section 10.2
of this Agreement.
6.2 Purchaser's Indemnity. Purchaser hereby agrees to pay, protect,
defend, indemnify and save Sellers and each of them harmless against all
liabilities, obligations, claims (including mechanic's lien claims), damages,
penalties, causes of action, judgments, costs and expenses (including, without
limitation, attorneys' fees and expenses) imposed upon, incurred by or asserted
against Sellers or any of them and either involving bodily injury or property
damage in connection with or arising out of the entry upon the Real Property by
Purchaser's employees, agents or independent contractors and the actions of such
persons on the Real Property. In the event any part of the Property is damaged
or excavated by Purchaser, its employees, agents or independent contractors,
Purchaser agrees in the event its purchase hereunder is not consummated, to make
such additional payments to Sellers as may be reasonably required to return the
Property to its condition immediately prior to such damage or excavation or, at
Sellers' option, to cause such work to be done. Notwithstanding any provision to
the contrary herein, Purchaser's obligations under this subparagraph shall
survive the expiration or termination of this Agreement, and shall survive
Closing, but in any event only with respect to claims or alleged claims as to
which written
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notice has been provided to Purchaser prior to the end of one year following the
Closing or the termination of this Agreement without Closing, as applicable.
6.3. Feasibility Period. Purchaser acknowledges that it was
afforded a period ending April 11, 1996 to conduct its inspection of the
Property and those documents and materials delivered or made available to it
by Sellers in accordance with Section 6.1 (the "Feasibility Period").
Purchaser has approved all such inspections.
6.4. Survey Contingency. Purchaser's obligation to purchase the
Property is subject to Purchaser's obtaining, at Sellers' cost and expense, and
Purchaser's approving, in accordance with and subject to the provisions of the
next succeeding paragraph of this Section 6.4, ALTA surveys of the Real Property
by a registered surveyor certified to Sellers, Purchaser, its Lender, and the
Title Company in accordance with the requirements set forth in that certain
contract, a copy of which is attached hereto as Exhibit J (the "Survey(s)"). The
Survey(s) shall show the location of all improvements, structures, driveways,
parking areas, easements, rights of way, and any encroachments and shall specify
whether the Property is within the 100 year flood plain or flood way. The
Survey(s) shall further set forth a legal description of the boundaries of the
Real Property in accordance with local practices and shall otherwise be prepared
in accordance with the terms of the contract attached hereto as Exhibit J. A
failure of the Purchaser to obtain a survey meeting all the above requirements
shall, at the option of the Purchaser, constitute a failure of a condition of
Closing only, and not a breach or a default by Sellers hereunder, and in such
event Purchaser's sole remedy shall be to terminate this Agreement, in which
case the Sellers shall instruct the Title Company to return the Deposit to
Purchaser, and neither party shall have any further obligation hereunder except
for the Surviving Covenants.
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Purchaser shall have until the later of (i) five (5) days after
delivery to it of the Survey(s) meeting the requirements of the immediately
preceding paragraph of this Section 6.4 to object in writing to the Survey(s),
including any objection to the boundaries set forth in the Survey(s) and to the
legal description. This contingency shall be deemed satisfied or waived if
Sellers have not received written notice of Purchaser's objection before such
date. Any such written notice shall state all of Purchaser's objections with
specificity. Upon receipt of such notice, Sellers may, but shall not be
obligated to, cure such objections. If Sellers cure such objections within
fifteen (15) days, or, if such objections are such that they cannot be cured
within fifteen (15) days and Sellers have commenced curing such objections and
thereafter diligently proceeds to perfect such cure (but in no event beyond
forty-five (45) days unless agreed to by Purchaser), then this Agreement shall
continue in full force and effect, and the Closing Date shall be adjusted
accordingly up to a maximum of 45 days. If Sellers are unable to, or choose not
to, cure such objections within the time permitted, this Agreement shall
terminate, Sellers shall instruct the Title Company to return the Deposit to
Purchaser, and none of the parties shall have any further obligations hereunder
except for the Surviving Covenants. Notwithstanding the foregoing, however,
Purchaser may waive such objections that Sellers are unable to or choose not to
cure, and upon receipt by Sellers of such waiver in full from Purchaser within
ten (10) days of notice from Sellers that they are unable to or choose not to
cure such objections, this Agreement shall remain in full force and effect with
no reduction in the Purchase Price.
6.5. Title Contingency. Purchaser's obligation to purchase
the Property is subject to its obtaining, at Purchaser's cost and expense,
subject to the credit if and when the Closing occurs described in Article XIV
hereof, at or prior to the end of the Feasibility Period, a commitment for an
Owner's Title Insurance Policy (the "Title Commitment"), issued by the Title
Company, together with legible copies of all items and documents referred to
in the Title Commitment. The Title Commitment will commit the Title Company
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to issue the Owner's Title Policy to Purchaser at the Closing in the amount of
the Purchase Price. Purchaser shall have until five (5) days after delivery to
it of the Survey(s) obtained pursuant to and in accordance with Section 6.4 to
state any objections in writing to the Title Commitment and/or any of the
accompanying documents. This contingency shall be deemed satisfied or waived if
such written notice of objection is not received by Sellers within such period.
Such written notice of objection shall state all of Purchaser's objections with
reasonable specificity. Upon receipt of such notice, Sellers may, but except to
the extent Sellers are required to cure such objection(s) in order to comply
with the requirements of Section 4.2(a)(i)(A) or (B) of this Agreement, shall
not be obligated to cure any such objections. If Sellers cure any objections
within fifteen (15) days, or, if such objections are such that they cannot be
cured within fifteen (15) days and Sellers have commenced curing such objections
and thereafter diligently proceeds to perfect such cure, then this Agreement
shall continue in full force and effect and the Closing Date shall be adjusted
accordingly up to a maximum of 45 days. If Sellers are unable or choose not to
cure any such objections within the time permitted and they are not otherwise
obligated to do so pursuant to Section 4.2(a)(i)(A) or (B) of this Agreement, or
if between the date of the Title Commitment and the Closing any further
encumbrances or other matters appear of record which Sellers are not obligated
to remove or cure in order to comply with the requirements of Section
4.2(a)(i)(A) or (B) of this Agreement and Sellers elect not to cure or remove
such encumbrances or other matters, then this Agreement shall terminate, and
Sellers shall instruct the Title Company to return the Deposit to Purchaser, and
neither party shall have any further obligations hereunder except for the
Surviving Covenants. Notwithstanding the foregoing, however, Purchaser may waive
such objections that Sellers are unable or choose not to cure within 10 days
after receipt of a notice that Sellers are unable or choose not to cure such
objections, and upon receipt by Sellers of such waiver in full from Purchaser,
this Agreement shall remain in full force and effect with no reduction in the
Purchase Price.
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If requested by Sellers, Purchaser will confirm in writing whether this
title contingency has been satisfied and, if so, the date on which it was
satisfied.
Article VII.
Loss due to Casualty or Condemnation
7.1 Loss due to Condemnation. In the event of a condemnation of all or
a Substantial Portion of the Real Property which condemnation shall or would
render a Substantial Portion of the Real Property untenantable, or if any
portion of any building or parking area or recreational facility, or if any
current means of ingress or egress is taken, or if such taking results in a
Property becoming a non-conforming use under applicable zoning laws or
ordinances, or if such a taking is threatened, contemplated, or has commenced,
either party may, upon written notice to the other party given within 10 days of
receipt of notice of such event, cancel this Agreement, in which event Sellers
shall instruct the Title Company to return the Deposit to Purchaser, this
Agreement shall terminate and neither party shall have any rights or obligations
hereunder except for the Surviving Covenants. In the event that neither party
elects to terminate, or if the condemnation affects less than a Substantial
Portion or does not affect the buildings or parking areas, or recreational
facility, or if current means of ingress or egress is taken, of if such taking
results in a Property becoming a non-conforming use under applicable zoning laws
or ordinances, then this Agreement shall remain in full force and effect, and
Sellers shall be entitled to all monies received or collected by reason of such
condemnation prior to closing. In such event, the transaction hereby
contemplated shall close in accordance with the terms and conditions of this
Agreement except that there will be an abatement of the Purchase Price equal to
the amount of the net proceeds, which are received by Sellers by reason of such
condemnation prior to Closing. If the condemnation proceeding shall not have
been concluded prior to the Closing, then there shall be no abatement of the
Purchase Price
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and Seller shall assign any interest it has in the pending award to Purchaser.
For purposes of this Section 7.1, a Substantial Portion shall mean a
condemnation of in excess of $1,000,000 in value of the Real Property.
7.2 Loss due to Casualty. In the event of Substantial Loss or Damage to
the Real Property by fire or other casualty (not resulting from acts of
Purchaser), either party may, upon written notice to the other party given
within 10 days of receipt of notice of such event, cancel this Agreement in
which event Seller shall instruct the Title Company to return the Deposit to
Purchaser and this Agreement shall terminate and neither party shall have any
rights or obligations hereunder except for the Surviving Covenants. In the event
that neither party elects to terminate, or if the casualty results in less than
Substantial Loss or Damage, then this Agreement shall remain in full force and
effect and Sellers shall be entitled to all insurance proceeds received or
collected by reason of such damage or loss, whereupon the transaction hereby
contemplated shall close in accordance with the terms and conditions of this
Agreement except that there will be an abatement of the Purchase Price equal to
the amount of the net proceeds received by Sellers as a result of such damage or
loss, plus all deductible amounts under any applicable casualty insurance
coverage of Sellers, provided that such abatement will be reduced by any amounts
expended by Sellers in accordance with Article VIII for restoration or
preservation of the Property following the casualty if and to the extent that
any remaining net proceeds plus deductibles are sufficient to complete the
repair or restoration. For purposes of this Section 7.2, "Substantial Loss or
Damage" shall mean loss or damage, the cost for repair of which exceeds
$1,000,000.
Article VIII.
Maintenance of the Property
Between the time of execution of this Agreement and the earlier of the
Closing Date or the termination of this Agreement, Sellers shall use their
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best efforts to maintain the Property in at least as good repair as of the
Effective Date of this Agreement, reasonable wear and tear excepted; except that
in the event of a fire or other casualty, damage or loss, Sellers shall have no
duty to repair said damage. However, Sellers may repair any such damage with
Purchaser's prior written approval and may, without Purchaser's approval, repair
damage where such repair is necessary in Sellers' reasonable opinion to preserve
and protect the health and safety of tenants of the Property or to preserve the
Property from imminent risk of further damage or if required to do so by
Sellers' insurance carrier. Any such emergency repairs shall be reported to
Purchaser within 48 hours of their commencement. During the period prior to the
Closing and after the Effective Date of this Agreement, Seller shall not lease
any portion of the Real Property except in the ordinary course of business. Any
and all such leases shall be on Seller's standard form of lease for the Property
except for non-material deviations, and for lease terms of not less than 6
months nor greater than 12 months at current market rentals for similar
apartment projects in the market, and without any concessions or discounts which
exceed those then prevalent in the market. With respect to any leases entered
into between the Effective Date and the Closing Date, Purchaser shall pay the
unamortized cost (based on the number of months in the entire term of the lease
for which rent is paid and the number of such months that shall have occurred as
of the date of the Closing) of all leasing commissions and locator fees with
respect thereto.
As part of Sellers' obligations to maintain the Property prior to
Closing, all apartment units which are vacant one (1) week or more prior to the
date of Closing shall be made rent-ready for new tenant occupancy in accordance
with Sellers standard practices, including the replacement of carpeting and
appliances where, in the normal course of Sellers' operation of the Property
prior to the Effective Date, such carpeting and/or appliances would have been
replaced prior to a new tenant taking occupancy.
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Article IX.
Broker
Purchaser and Sellers represent to each other that they have dealt with
no agent or broker who in any way has participated as a procuring cause of the
sale of the Property, except CB Commercial Real Estate Group ("CB"). Sellers
shall pay all broker's fees of CB at Closing, and CB shall be responsible for
paying any applicable co-broker under terms of any separate agreement between
them. Purchaser and Sellers each agree to defend, indemnify and hold harmless
the other from any and all judgments, costs of suit, attorneys' fees, and other
reasonable expenses which the other may incur by reason of any action or claim
against the other by any broker, agent, or finder with whom the indemnifying
party has dealt arising out of this Agreement or any subsequent sale of the
Property to Purchaser, except for the above-described commissions, which shall
be paid by Sellers. The provisions of this Article IX shall survive the Closing
and any termination of this Agreement.
Article X.
Representations and Warranties
10.1 Limitations on Representations and Warranties. Purchaser hereby
agrees and acknowledges that, except as set forth in Article IX, in Section 10.2
of this Article X, and, in the event the Closing occurs, in the Special Warranty
Deeds delivered by Sellers to Purchaser at Closing, neither Sellers nor any
agent, attorney, employee or representative of Sellers has made any
representation whatsoever regarding the subject matter of this sale, or any part
thereof, including (without limiting the generality of the foregoing)
representations as to the physical nature or condition of the Property or the
capabilities thereof, and that Purchaser, in executing, delivering and/or
performing this Agreement, does not rely upon any statement and/or information
to whomever made or given, directly or indirectly, orally or in writing, by any
individual, firm or corporation. Purchaser agrees to
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take the Real Property and the Personal Property "as is," as of the date hereof,
reasonable wear and tear, and minor damage caused by the removal of any personal
property or fixtures not included in this sale, excepted. SELLERS AND EACH OF
THEM MAKE NO REPRESENTATIONS OR WARRANTIES AS TO THE PHYSICAL CONDITION OF THE
PROPERTY OR THE SUITABILITY THEREOF FOR ANY PURPOSE FOR WHICH PURCHASER MAY
DESIRE TO USE IT. SELLERS AND EACH OF THEM, HEREBY EXPRESSLY DISCLAIM ANY
WARRANTIES OF MERCHANTABILITY AND/OR FITNESS FOR A PARTICULAR PURPOSE AND ANY
OTHER WARRANTIES OR REPRESENTATIONS AS TO THE PHYSICAL CONDITION OF THE
PROPERTY. PURCHASER, BY ACCEPTANCE OF THE DEED, AGREES THAT IT HAS INSPECTED THE
PROPERTY AND ACCEPTS SAME "AS IS" AND "WITH ALL FAULTS".
10.2 Representations and Warranties of Sellers. Sellers, each
individually and severally, and each solely with respect to the portion of the
Property owned by it and to be conveyed by it to Purchaser pursuant to this
Agreement, make the following representations and warranties, and agree that
Purchaser's obligations under this Agreement are conditioned upon the truth and
accuracy of such representations and warranties, both as of this date and/or as
of the date of the Closing, as applicable:
(a) Each Seller has (i) been duly organized and is validly existing and
in good standing under the laws of the jurisdiction of its organization and, if
different, is qualified to do business and in good standing in the State of
Illinois, and (ii) has all requisite partnership power and authority under the
terms of its partnership agreement to enter into this Agreement and convey the
Property owned by it and covered by this Agreement to Purchaser. The persons
signing this Agreement on behalf of each of the Sellers are authorized to do so
and have properly executed the same. On the date of the Closing, each Seller
will represent that this Agreement and all of the documents to be executed and
delivered by each Seller at Closing in accordance herewith have been duly
authorized and properly executed by Sellers.
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(b) The execution of and performance by Sellers of their respective
obligations under this Agreement, do not and will not conflict with the terms of
Sellers' partnership agreements. There is no agreement to which any of Sellers
is a party, or, to each Seller's knowledge, which is binding upon such Seller,
which prohibits such Seller's execution of or performance under this Agreement.
(c) Exhibit I attached hereto lists all service, maintenance, supply,
and management contracts (collectively, "Service Contracts") affecting the
Property. No portion of the Property is leased to Sellers, or any of them,
except as set forth in Exhibit B.
(d) Sellers have received no notice of any existing, pending, or to the
best of their knowledge threatened litigation, administrative proceeding or
condemnation or sale in lieu thereof, with respect to any portion of the
Property owned by each Seller, or which challenges or impairs each such Seller's
ability to execute, deliver or perform its respective obligations under this
Agreement except as noted on Exhibit H attached hereto with respect to the
Property owned by such Seller.
(e) Except for those tenants and licensees in possession of the Real
Property under written leases or license agreements for space in the Real
Property as shown in the Rent Roll(s) attached hereto as Exhibit B and the
updated Rent Roll(s) which shall be delivered at Closing, there are no leases
otherwise affecting the Real Property, and to the best of each Seller's
knowledge there are no other parties in possession of, or claiming any
possession to, any portion of the Real Property owned by such Seller as lessees,
tenants at sufferance, licensees, trespassers or otherwise.
(f) The Rent Roll(s) attached hereto as Exhibit B are, and the updated
Rent Roll(s) which shall be delivered at the Closing for each Seller's portion
of the Real Property will be, true, correct and complete as
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of the date set forth thereon; no tenant is or will be entitled to any rebates,
rent concessions, or free rent (other than as reflected in said Rent Rolls) and
no rents due under any of the tenant or other leases have or will have been
assigned, hypothecated, or encumbered by Sellers or any of them to any party
except pursuant to documents to be released at Closing. In addition, there are
no claims against security deposits, tenant options to renew leases, or prepaid
rents except as shown on the Rent Rolls or otherwise disclosed in writing to
Purchaser.
(g) There are no attachments or executions affecting the portion of the
Property owned by each Seller, or any general assignments for the benefit of
creditors, or voluntary or involuntary proceedings in bankruptcy, pending or, to
the best of each Seller's knowledge, threatened against such Seller.
(h) During the period of each Seller's ownership of the portion of the
Property owned by it, such Seller has not itself, and to the best of such
Seller's knowledge, no prior owner or current or prior tenant or other occupant
of all or any part of the Property owned by such Seller at any time has, used
Hazardous Materials (hereinafter defined) on, from, or affecting the Property in
any manner that violates federal, state, or local laws, ordinances, rules, or
regulations governing the use, storage, treatment, transportation, generation,
or disposal of Hazardous Materials (collectively, the "Environmental Laws").
"Hazardous Materials" shall mean any flammable substances, explosives,
radioactive materials, hazardous wastes, toxic substances, pollutants,
pollution, or related materials regulated under any of the Environmental Laws.
(i) Sellers have not received written notice:
1. from any federal, state, county or municipal authority
alleging any current fire, health, safety, building, pollution, environmental,
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zoning or other violation of any ordinance, code, or law with respect to the
Property or any part of the Property which has not been made available to
Purchaser pursuant to Section 6.1 of this Agreement;
2. from the appropriate governmental authority concerning any
condemnation or anticipated condemnation of any part of the Property or
concerning any special taxes or assessments, fees or charges, levied or to be
levied against the Property or any part thereof which has not been made
available to Purchaser pursuant to Section 6.1 of this Agreement;
3. from any insurance company of any defects or inadequacies in
the Property or any part thereof, which would adversely affect the insurability
of the same or cause the imposition of extraordinary premiums or charges
therefor, or the termination or threatened termination of any policy of casualty
or liability insurance carried by Seller with respect to the Property which has
not been made available to Purchaser pursuant to Section 6.1 of this Agreement;
or
4. from any appropriate government authority concerning any
change in the zoning classification of the Property or any part thereof which
has not been made available to Purchaser pursuant to Section 6.1 of this
Agreement.
Sellers or any Seller's inability to make any of the foregoing
representations and warranties as of the date of the Closing as a result of any
change in circumstances between the Effective Date of this Agreement and the
date of the Closing, including, without limitation, any Seller's becoming aware
of or acquiring knowledge of any additional facts, circumstances, or conditions,
such that it is unable to make or re-affirm any of the foregoing representations
and warranties as of the date of Closing shall constitute a failure of a
condition of Closing only, shall not constitute a default by or breach by
Sellers or any of them pursuant to this Agreement and shall give
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rise to no right of Purchaser other than its right to terminate this Agreement
as a result of failure of a condition of Closing.
10.3 Seller's Knowledge. Whenever the term "to the best of Seller's
knowledge" is used in this Agreement or in any representations and warranties
given to Purchaser at Closing, such knowledge shall be the actual knowledge of
Linda L. Morel (the "Key Personnel"), the asset manager assigned to the Real
Property by CIGNA Investments, Inc., authorized agent for Sellers, after review
of the files of CIGNA Investments, Inc. and inquiry of Sellers' property
manager(s) after Sellers have delivered to such property manager(s) a copy of
Section 10.2 of this Agreement. Sellers shall have no duty to conduct any
further inquiry in making any such representations and warranties, and no
knowledge of any other person shall be imputed to the Key Personnel.
10.4 Survival. All representations and warranties contained in Section
10.2 will survive the Closing of this transaction (but only as to the status of
facts as they exist as of the Closing, it being understood that Sellers and each
of them make no representations or warranties which would apply to changes or
other matters occurring after the Closing), but shall expire on the date one
year from the date of Closing, and no action on such representations and
warranties may be commenced after such expiration.
10.5 Seller's Liability. The liability of each Seller hereunder with
respect to any of the foregoing representations and warranties and otherwise
under this Agreement shall be limited to the assets of such Seller and its
general partner only, and no limited partner or any partner, or owner of any
interest of any limited partner, of any Seller shall have any liability arising
under this Article X or under any other provision of this Agreement. Without
limiting any of the foregoing, and without limiting Purchaser's remedies
hereunder, each of the Sellers agrees to retain $50,000 of its portion of the
Purchase Price paid to it at Closing for a period of sixty (60) days following
the Closing, or if any claim or claims are properly
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made against such Seller by Purchaser within sixty (60) days after the Closing,
until such claims have been finally adjudicated.
Article XI.
Liability of Sellers
Except as otherwise specifically provided in this Agreement, neither
Sellers nor any independent property managers which Sellers have hired to manage
the Property shall, by entering into this Agreement, become liable for any costs
or expenses incurred by Purchaser subsequent to the date of Closing, including
(a) for any labor performed on, or materials furnished to, the Real Property on
or after the Closing Date, or (b) for any leasing commissions or other fees or
commissions due for renewals or extensions of existing leases or otherwise, or
(c) for compliance with any laws, requirements or regulations of, or taxes,
assessments or other charges thereafter due to any governmental authority, or
(d) for any other charges or expenses whatsoever pertaining to the Property or
to the ownership, title, possession, use, or occupancy of the Property, whether
or not such costs and expenses were incurred pursuant to obligations of
Purchaser under this Agreement (including, without limitation, any costs of
compliance with presently-existing and future environmental laws, any
environmental remediation costs, and any costs of, or awards of damages for,
damage to the environment, to natural resources, or to any third party), it
being the intent of this Agreement, as between Purchaser and Sellers, to shift
all such liability to Purchaser, except for any liability of Sellers or any of
them under the provisions of Article X hereof. The provisions of this Article XI
shall survive Closing. Notwithstanding the foregoing, no provision of this
Article XI shall be construed as an indemnity by Purchaser of Sellers's
liabilities to third parties that have accrued prior to the Closing.
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Article XII.
Assignment
This Agreement may not be assigned or transferred by Purchaser without
prior written consent of Sellers, provided that Purchaser may assign this
Agreement to an entity in which it has a general partnership interest, or in the
case of a limited liability company, in which it is a managing member. No
assignment shall relieve Purchaser of any of its obligations under this
Agreement.
Article XIII.
Notices
All notices hereunder or required by law shall be sent via United
States Mail, postage prepaid, certified mail, return receipt requested, or via
any nationally recognized commercial overnight carrier with provisions for
receipt, addressed to the parties hereto at their respective addresses set forth
below or as they have theretofore specified by written notice delivered in
accordance herewith:
PURCHASER: Amli Residential Properties, L.P.
125 South Wacker Drive
Suite 3100
Chicago, IL 60606
Attn: John Allen
with a copy to: D'Ancona & Pflaum
30 North LaSalle Street
Suite 3900
Chicago, IL 60602
Attn: Joel D. Rubin
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SELLER: Connecticut General Life Insurance Company
c/o CIGNA Investments, Inc.
900 Cottage Grove Road
Hartford, CT 06152-2311
Attn: Real Estate Investment Department
Asset Management, S-311
with a copy to: CIGNA Corporation
Investment Law Department
Mortgage and Real Estate Group, S-215A
900 Cottage Grove Road
Hartford, CT 06152-2215
Delivery will be deemed complete upon actual receipt or refusal to accept
delivery.
Article XIV.
Expenses
Sellers shall pay their own attorney's fees, the cost of the Survey(s),
and all conveyance taxes, one-half of the Title Company's escrow fee (provided
that any additional and separately stated escrow charges incurred as a result of
the Title Company's placing the Deposit in an interest-bearing account shall be
borne solely by the Purchaser). All other costs and expenses related to the
transaction or this Agreement including but not limited to all of Purchaser's
attorneys' fees and expenses, recording charges (except for release of Sellers'
financing documents), one-half of the Title Company's escrow fee (subject to the
proviso in the immediately preceding sentence), and any Owner's Title Policy
premium and any title policy premium required by any mortgagee of Purchaser (if
any) shall be paid by Purchaser, notwithstanding any local practice to the
contrary. Notwithstanding the foregoing, Purchaser shall receive a credit
against the balance of the Purchase Price due to Sellers at Closing equal to the
lesser of $14,000 or the actual costs incurred by Purchaser to obtain an ALTA
Owner's Title Insurance Policy acceptable to Purchaser with coverage in the
amount of the Purchase Price, including all endorsements required by Purchaser.
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Article XV.
Miscellaneous
15.1 Successors and Assigns. All the terms and conditions of this
Agreement are hereby made binding upon the executors, heirs, administrators,
successors and permitted assigns of both parties hereto.
15.2 Gender. Words of any gender used in this Agreement shall be held
and construed to include any other gender, and words in the singular number
shall be held to include the plural, and vice versa, unless the context requires
otherwise.
15.3 Captions. The captions in this Agreement are inserted only for the
purpose of convenient reference and in no way define, limit or prescribe the
scope or intent of this Agreement or any part hereof.
15.4 Construction. No provision of this Agreement shall be construed by
any Court or other judicial authority against any party hereto by reason of such
party's being deemed to have drafted or structured such provisions.
15.5 Entire Agreement. This Agreement constitutes the entire contract
between the parties hereto and there are no other oral or written promises,
conditions, representations, understandings or terms of any kind as conditions
or inducements to the execution hereof and none have been relied upon by either
party.
15.6 Recording. The parties agree that this Agreement shall not be
recorded. If Purchaser causes this Agreement or any notice or memorandum thereof
to be recorded, this Agreement shall be null and void at the option of the
Sellers.
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15.7 No Continuance. Purchaser acknowledges that there shall be no
assignment, transfer or continuance of any of Sellers' insurance coverage or
of the property management contract.
15.8 Time of Essence. Time is of the essence in this transaction.
15.9 Original Document. This Agreement may be executed by the parties
in counterparts in which event each shall be deemed an original.
15.10 Governing Law. This Agreement shall be construed, and the rights
and obligations of Sellers and Purchaser hereunder, shall be determined in
accordance with the laws of the State of Illinois.
15.11 Acceptance of Offer. This Agreement constitutes Sellers' offer to
sell to Purchaser on the terms set forth herein and must be accepted by
Purchaser by signing four copies hereof and returning two copies to Sellers no
later than April 29, 1996. If Purchaser has not accepted this Agreement by such
date, then this Agreement and the offer represented hereby shall automatically
be revoked and shall be of no further force or effect.
15.12 Confidentiality. Purchaser and Sellers agree that all documents
and information concerning the Property delivered to Purchaser, the subject
matter of this Agreement, and all negotiations will remain confidential.
Purchaser and Seller will disclose such information only (i) to those parties
required to know it, including, without limitation, employees of either of the
parties, consultants and attorneys engaged by either of the parties, and
prospective or existing investors and lenders, and (ii) as required by law
including, without limitation, in connection in any filings with the Securities
and Exchange Commission which are required to be made by Purchaser.
15.13 Covenants Surviving Termination of this Agreement.
Notwithstanding any provisions hereof to the contrary, the provisions of the
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second paragraph of Section 6.2 hereof and the provisions of Article IX hereof
(collectively, the "Surviving Covenants") shall survive any termination of this
Agreement.
EXECUTED BY PURCHASER this 29th day of April, 1996.
SELLER:
CIGNA/WILLOWBROOK ASSOCIATES LIMITED
PARTNERSHIP
By: Knollwood Associates Limited
Partnership, its general partner
By: CIGNA Realty Resources, Inc. -
XI, its general partner
By: /s/ Mark V. DePucchio
Mark V. DePucchio
Its Authorized Agent
CIGNA/WILLOWBROOK II ASSOCIATES LIMITED
PARTNERSHIP
By: CIGNA Realty Resources, Inc. - XIV,
its general partner
By: /s/ Mark V. DePucchio
Mark V. DePucchio
Its Authorized Agent
CONNECTICUT GENERAL REALTY INVESTORS III
LIMITED PARTNERSHIP
By: CIGNA Realty Resources, Inc. - V,
its general partner
By: /s/ Mark V. DePucchio
Mark V. DePucchio
Its Authorized Agent
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ACCEPTED AND AGREED:
PURCHASER:
AMLI Residential Properties, L.P.
By: AMLI Residential Properties Trust,
its sole general partner
By: /s/ Fred Shapiro
Name: Fred Shapiro
Title: Vice President
Date: April 29, 1996
Receipt of original copies of this Agreement executed by SellerS and Purchaser
is acknowledged this 29th day of April, 1996.
TITLE COMPANY:
Chicago Title and Trust Company
By: /s/ Jane Cox
Name: Jane Cox
Title: Escrow Officer
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