June 30, 1995
Securities and Exchange Commission
450 Fifth Street, N.W.
Judiciary Plaza
Washington, D.C. 20549
Re: Carlyle Real Estate Limited Partnership - XV
Commission File No. 0-16111
Form 8K
Gentlemen:
Transmitted, for the above-captioned registrant, is the electronically filed
executed copy of registrant's current report on Form 8K dated June 30, 1995
Thank you.
Very truly yours,
CARLYLE REAL ESTATE LIMITED PARTNERSHIP - XV
By: JMB Realty Corporation
Corporate General Partner
By: C. SCOTT NELSON
________________________________
C. Scott Nelson, Vice President
Accounting Officer
CSN:jo
Enclosures
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): June 30, 1995
CARLYLE REAL ESTATE LIMITED PARTNERSHIP - XV
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(Exact name of registrant as specified in its charter)
Illinois 0-16111 36-3314827
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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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EASTRIDGE MALL
CASPER, WYOMING
-------------------------
ITEM 5. OTHER EVENTS. On June 30, 1995, Carlyle Real Estate Limited
Partnership - XV ("the Partnership") sold its 90% general partnership interest
in East Ridge Development Company, Ltd., ("East Ridge") a Maryland limited
partnership, which owns the land, building and related improvements of the
Eastridge Mall ("the Property"), located in Casper, Wyoming. The purchaser,
Price Development Company, Limited Partnership, is the Partnership's joint
venture partner in East Ridge and is not affiliated with the Partnership or
its General Partners, and the sale price was determined by arm's-length
negotiations. The Property is a 557,000 square foot enclosed shopping center
in which East Ridge owns 477,000 square feet of mall space. Target department
store (80,000 square feet) owns its own store. The Property owned by East
Ridge was approximately 91% occupied at the time of sale.
The purchaser paid $24,075,000 (before prorations) at closing, of which
$23,403,994 was used to retire the mortgage note secured by the Property and
the balance representing the deemed sale price of the Partnership's interest
in East Ridge. The Partnership received net proceeds (after prorations and
retirement of debt) of $1,025,448 on June 30, 1995.
The Partnership Agreement provides that the Limited Partners shall
receive 99% of the proceeds (net after expenses and retained working capital)
from the sale or refinancing of real property investments by the Partnership
until the Limited Partners (i) have received cash distributions of sale or
refinancing proceeds in an amount equal to the Limited Partners' aggregate
initial capital investment in the Partnership, and (ii) have received
cumulative cash distributions from the Partnership's operations which, when
combined with 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 as reduced by sale or refinancing
proceeds previously distributed) commencing with the third calendar quarter of
1986. After such distributions, the General Partners shall receive (to the
extent not previously received) proceeds up to 3% of the aggregate gross sales
price of properties previously sold by the Partnership with any remaining
proceeds allocated 85% to the Limited Partners and 15% to the General
Partners. The Limited Partners have not yet received cash distributions of
sale or refinancing proceeds in an amount equal to their initial capital
investment in the Partnership. Therefore, 1% of the proceeds of this sale
would be distributable to the General Partners. If upon the completion of the
liquidation of the Partnership and the distribution of all Partnership funds,
the Limited Partners have not received the amounts in (i) and (ii) above, the
General Partners will be required to return all or a portion of the 1%
distribution of sale or financing proceeds described above in a amount equal
to such deficiency in payments to the Limited Partners pursuant to (i) and
(ii) above.
ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS.
(a) Financial Statements. Not applicable
(b) Proforma financial information. Not applicable.
(c) Exhibits.
1. Partnership Interest Purchase Agreement among Carlyle Real
Estate Limited Partnership - XV and Price Development Company, Limited
Partnership dated June 30, 1995.
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 - XV
By: JMB Realty Corporation
Corporate General Partner
By: C. SCOTT NELSON
-----------------------------------
C. Scott Nelson, Vice President
Accounting Officer
Dated: July 24, 1995
PARTNERSHIP INTEREST
PURCHASE AGREEMENT
(Eastridge Mall, Casper, Wyoming)
THIS AGREEMENT made and entered into as of the ______ day of June,
1995, by and among CARLYLE REAL ESTATE LIMITED PARTNERSHIP-XV, an Illinois
limited partnership ("Seller") and PRICE DEVELOPMENT COMPANY, LIMITED
PARTNERSHIP, a Maryland limited partnership ("Buyer").
R E C I T A L S
A. Seller and the parties specified in Exhibit "A" attached hereto
and made a part hereof (collectively, the "Price Group") constitute the
sole partners in "EAST RIDGE DEVELOPMENT COMPANY", a Utah limited
partnership (the "Partnership") formed and existing pursuant to that
certain partnership agreement described on Exhibit "B" attached hereto and
made a part hereof (the agreement and amendments so described, together
with all other amendments or modifications entered into prior hereto, being
herein collectively called the "Partnership Agreement"). Except as
otherwise set forth herein, all terms used in a defined manner herein shall
have the meanings set forth for such terms in the Partnership Agreement.
B. The Partnership is the owner of a certain shopping center
located in Casper, Wyoming and commonly known as "Eastridge Mall" (the
"Business Property").
C. Seller desires to sell, and Buyer desire to purchase, all of
Seller's interest in the Partnership in the manner hereinafter set forth.
NOW, THEREFORE, in consideration of the mutual undertakings of the
parties hereto, it is hereby agreed as follows:
1. Purchase and Sale Transactions.
A. Sale of Partnership Interest. For the purchase price and on
the terms and conditions hereinafter set forth, Seller shall sell to Buyer,
and Buyer shall purchase from Seller, the interest of Seller in the
Partnership, as such interest is described in the Partnership Agreement,
including, but not limited to, Seller's interest in the capital and profits
and losses of the Partnership. The Partnership interests to be purchased
by Buyer (in the percentages hereinafter set forth) as aforesaid are herein
called the "Acquired Partnership Interest".
B. Purchase Price. The parties agree that the payments to be made
in connection with the transactions contemplated herein have been
calculated on the basis of a deemed value for the assets of the Partnership
of $24,075,000. The Partnership is the obligor under the "Existing Loan",
and the Business Property is currently encumbered by, among other matters,
the "Existing Loan Documents" (as such terms are hereinafter defined). The
deemed value of the assets of the Partnership in excess of the outstanding
balance of the Existing Loan is deemed attributable entirely to the
Acquired Partnership Interest as a result of the provisions of the
Partnership Agreement. The Existing Loan is to be paid off and, together
with the Existing Loan Documents, discharged by or on behalf of the
Partnership concurrently with, and as a condition to, the closing of the
transactions hereunder. Except as to such Existing Loan, Buyer shall
acquire the Acquired Partnership Interest subject to all of the other
obligations and liabilities of the Partnership existing as of the Closing
Date. Based upon the foregoing, and as consideration for the transactions
hereunder, Buyer shall pay the sum of $24,050,000, as adjusted by the
prorations and credits specified herein, payable as follows:
(1) Escrow Deposit. Concurrently herewith, Buyer shall
deliver a bank or cashier's check or other good funds in the amount of
$500,000 to First American Title Insurance Company, National/Commercial
Division, at its offices at 338 East 400 South, Salt Lake City, Utah 84111
(Attention: Cindy Lund), which company, in its capacity as escrow holder
hereunder, is called "Escrow Holder"). The proceeds of such check or other
good funds shall be deposited and held by Escrow Holder as a deposit
against the payments due Seller hereunder in accordance with the terms and
provisions of this Agreement. As used herein, the term "Escrow Deposit"
shall mean the foregoing $500,000 deposit, together with all interest
thereon. 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 major national money center banking institution reasonably
acceptable to Seller, or (iii) such other manner as may be reasonably
agreed to by Seller and Buyer. The Escrow Deposit shall be disposed of by
Escrow Holder only as provided in this Agreement. Seller and Buyer agree
to promptly execute such additional escrow instructions as may be required
by Escrow Holder provided the same are consistent with the terms of this
Agreement and are otherwise reasonably satisfactory to the parties.
(2) Payoff of Existing Loan. An amount equal to the
principal balance of the Existing Loan, together with all other sums due
thereunder, shall be paid by Buyer on the Closing Date (and shall be
utilized to pay off all such sums due under the Existing Loan and discharge
the same). It shall be a condition precedent to the transactions hereunder
that the Existing Loan be paid off without penalty, premium or other
material fees in connection therewith.
(3) Closing Payment Due Seller. An amount equal to the
"Equity Amount" (as hereinafter defined), as adjusted by the application of
the Escrow Deposit and other adjustments specified herein, shall be paid in
cash on the "Closing Date", as hereinafter defined (the amount to be paid
under this subparagraph B(3) being herein called the "Closing Payment").
C. Certain Definitions.
(1) "Equity Amount", as used herein, means the amount by
which $24,050,000 exceeds the principal balance of the "Existing Loan" as
of the Closing Date. For example, assuming the Closing Date shall be
June 30, 1995 (and the June 1 installment under the Existing Loan has been
made), the Equity Amount is anticipated to be $861,621 (i.e., $24,050,000
minus the outstanding loan balance of approximately $23,188,379). If the
Closing Date is extended by agreement of the parties into July, 1995 (and,
the July 1 installment under the Existing Loan shall have been made), the
Equity Amount is anticipated to be $887,077 (i.e., $24,050,000 minus the
outstanding loan balance of approximately $23,162,923).
(2) "Existing Loan", as used herein, means that certain loan
in the original principal amount of $25,000,000 made to the Partnership by
Aetna Life Insurance Company ("Existing Lender"), which loan is evidenced
by that certain promissory note dated September 9, 1985, in the original
amount of $25,000,000 given by the Partnership in favor of Existing Lender
and secured by, among other matters, a Mortgage, Assignment of Rents and
Security Agreement and an Assignment of Rents and Leases, each dated
September 9, 1985, given by the Partnership in favor of Existing Lender
(all such documents, together with all other documents or instruments
evidencing or securing the Existing Loan, including any and all amendments
thereto, are herein called the "Existing Loan Documents").
2. Closing Procedure. The purchase of the Acquired Partnership
Interest shall be consummated through a closing conference ("Closing
Conference") which shall be held at Buyer's offices at 35 Century Park-Way,
Salt Lake City, Utah. In order to facilitate the closing of the
transactions hereunder, the parties will meet at a pre-closing conference
commencing on June 27, 1995, with the intention to finalize the closing
matters contemplated herein in a timely manner so as to cause the actual
closing hereunder to occur on the Closing Date. As used herein, the
"Closing Date" means an effective date as of June 30, 1995, or such earlier
or later date as shall be hereafter agreed upon by the parties hereto for
the sale herein provided.
A. Delivery of Documents.
(1) Escrow. On or before the Closing Date, the parties shall
deliver to Escrow Holder the following: (1) by Seller, duly executed and
acknowledged originals of an assignment and assumption of the Acquired
Partnership Interest ("Assignment and Assumption of Partnership Interest")
in the form of Exhibit "C" attached hereto and made a part hereof, and
(2) by Buyer, duly executed and acknowledged originals of the Assignment
and Assumption of Partnership Interest, together with the Closing Payment
and the amounts necessary to discharge the Existing Loan as herein provided
in immediately available federal funds. Such deliveries shall be made
pursuant to escrow instructions ("Escrow Instructions") to be executed
among Buyer, Seller and Escrow Holder 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 Escrow Holder's receipt of the
Assignment and Assumption of Partnership Interest, the Closing Payment and
a notice from each of Buyer and Seller authorizing Escrow Holder 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 Assignment and
Assumption of Partnership Interest shall be delivered to both Seller and
Buyer by Escrow Holder, (y) the Closing Payment (and the Escrow Deposit)
shall be delivered by Title Company to Seller and the amounts necessary to
pay-off the Existing Loan delivered by the Title Company to the Existing
Lender, and (z) at the Closing Conference, the following items shall be
delivered:
(1) Seller Deliveries. Seller shall deliver to Buyer the
following:
(a) Duly executed and acknowledged certificates
regarding the "non-foreign" status of Seller;
(b) A certificate of Seller ("Seller Closing
Certificate") updating the representations and warranties contained in
paragraph 4A hereof to the Closing Date and noting any changes thereto; and
(c) 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.
(2) Buyer Deliveries. Buyer shall deliver to Seller the
following:
(a) A certificate of Buyer ("Buyer Closing
Certificate") updating the representations and warranties contained in
paragraph 4B hereof to the Closing Date and noting any changes thereto;
(b) 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
(c) Any other documents or instruments required to be
delivered by Buyer hereunder (including the release and indemnity specified
in paragraph 6A hereof, and the release from the Existing Lender if
required hereunder).
C. Partnership Amendments. Seller and Buyer shall execute and
deliver such amendments to the Partnership Agreement and the Certificate of
Limited Partnership of the Partnership and such other Partnership documents
as may be reasonably required to effectuate the sale of Seller's interest
in the Partnership as contemplated herein. Buyer shall cause all other
members of the Price Group which may be necessary to sign such documents to
execute and deliver the same.
D. Prorations and Adjustments. All items of income and expense in
connection with the ownership and operation of the Business Property shall
be prorated on the Closing Date, computed as of the Closing Date, to
allocate the income and expenses of the Partnership between the Partnership
as it was constituted immediately prior to the sale of the Acquired
Partnership Interest hereunder and the Partnership as it is constituted
immediately following the sale of the Acquired Partnership Interest
hereunder. In addition, Seller shall be entitled to receive an amount
equal to the aggregate amount of any capital profits, losses, distributions
and other sums or proceeds which may have accrued in favor of Seller under
the Partnership Agreement prior to the Closing Date.
E. Calculations of Proration Amount and Seller Accrual Amount.
The adjustments under subparagraph D above shall be determined on the basis
of a written statement or statements prepared and approved by Buyer and
Seller prior to the Closing Conference. Buyer and Seller shall determine
the manner in which such are to be calculated, in a fair, equitable and
reasonable manner. Seller and Buyer shall cooperate with each other in
good faith in connection with the determinations and computations required
hereunder. In the event any prorations, credits, apportionments or
computations made under subparagraph D above shall prove to be incorrect
for any reason, then each of Seller and Buyer shall be entitled to an
adjustment to correct the same, provided that any party entitled to such
adjustment make written demand on such other party from whom it is entitled
to such adjustment within one year after the Closing Date. Any item which
cannot be finally prorated or determined because of the unavailability of
information shall be tentatively prorated or determined on the basis of the
best data then available and reprorated after the information is available.
In connection therewith, after the Closing Date Buyer shall continue to
provide Seller reasonable access to all books and records of the
Partnership and to all other financial information as may be reasonably
required in connection with the foregoing determinations. Notwithstanding
the foregoing, Buyer and Seller hereby agree that, for ease of
administration and other reasons, they will work in good faith to attempt
to determine a final closing amount which will encompass all prorations,
credits and other determinations to be made under this section, such that
no post-closing adjustments for such items will be required.
F. Closing Costs. Subject to the brokerage provisions of
paragraph 9 below, Buyer shall pay all closing costs in connection with the
transactions contemplated in this Agreement, including all documentary,
filing, recording, conveyance, transfer, intangible and other taxes, if
any, recording or filing charges for any instruments or documents which may
be recorded or filed, if any, all title, survey or escrow fees, if any.
Buyer shall pay its own legal fees, as well as the legal fees of Seller, in
connection with the transactions contemplated herein; provided, however,
Buyer shall not be obligated to pay more than $25,000 towards Seller's
legal fees and such reimbursement obligation shall not include any legal
fees of Seller incurred in connection with any litigation between Seller
and Buyer which may arise in connection with this Agreement.
3. Profits and Losses of the Partnership Prior to Closing; Tax
Returns. Subject to the provisions set forth in paragraph 2E above, the
parties confirm that profits and losses of the Partnership for the period
from January 1, 1995 through the Closing Date shall be allocated for tax
reporting purposes pursuant to the applicable provisions of the Partnership
Agreement. Buyer will cooperate with Seller in providing and preparing
such information and items as may be required in order to timely prepare
and deliver tax returns and other similar items after the Closing Date
(and, in connection therewith, after the Closing Date Buyer shall continue
to provide Seller reasonable access to all books and records of the
Partnership and to all other financial information as may be reasonably
required in connection with such determinations).
4. Representations and Warranties.
A. Representations and Warranties of Seller. Seller hereby
represents and warrants to Buyer as follows:
(1) Except as set forth in subparagraphs A(2) through A(7)
below, the sale of the Acquired Partnership Interest 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 Business Property, the
physical condition of the Business Property (including, but not limited to,
the condition of the soil or the improvements), the environmental condition
of the Business Property (including, but not limited to, the presence or
absence of hazardous substances on or respecting the Business Property),
the compliance of the Business 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 Business Property),
the financial condition of the Business Property or the Partnership or any
other representation or warranty respecting any income, expenses, charges,
liens or encumbrances, rights or claims on, affecting or pertaining to the
Partnership or the Business Property or any part thereof. Buyer
acknowledges that Buyer is an existing partner in the Partnership, and is
also the manager of the Business Property pursuant to its existing
management agreement with the Partnership, as owner. Buyer acknowledge
that, except as to matters specifically set forth in subparagraphs A(2)
through A(7) below, Buyer will acquire its Acquired Partnership Interest
solely on the basis of (a) its own physical and financial examination of
the Business Property and (b) information and knowledge in its possession.
As a result of its existing interest in the Partnership and the Business
Property, Buyer is not relying upon, and has no need to rely upon, any
knowledge or information in the possession of Seller with respect to any of
the foregoing matters except as set forth herein.
(2) Seller is a corporation, duly organized, validly and in
good standing existing under the laws of the State of Illinois.
(3) Seller is duly authorized, qualified and licensed under
any and all applicable laws, regulations, ordinances and orders to do all
things required of it, under and in connection with this Agreement.
(4) Seller has the right, power and authority to enter into
and perform the terms of this Agreement and to consummate the transactions
contemplated hereby.
(5) This Agreement and all agreements, instruments and
documents herein provided to be executed or to be caused to be executed by
Seller are (or, in the case of agreements, instruments and documents
executed as of the Closing Date, will be as of the Closing Date) duly
authorized, executed and delivered by, and binding upon, Seller.
(6) Seller owns the Acquired Partnership Interest, free and
clear of any and all security interests, rights, options, claims and
demands (other than any security interests and rights granted under the
Partnership Agreement) of any person claiming by, through or under Seller,
but not otherwise.
(7) Seller has no knowledge that Seller has received any
written notice on behalf of the Partnership from any governmental authority
claiming that the Business Property is in violation of applicable laws
(including environmental laws) or from any tenant at the Business Property
claiming that the Partnership is in breach of such tenant's lease with
respect thereto, which notices were received by Seller independently from
Buyer (or an affiliated or related entity) and as to which Buyer (or an
affiliated or related entity) has not otherwise been advised or otherwise
has no knowledge. As used herein, the term "knowledge" as to Seller means
the knowledge of James M. Whittington and Brian Ellison (such knowledge
being deemed to be only the actual knowledge of such individuals without
any duty to investigate).
B. Representations and Warranties of Buyer. Buyer hereby
represent and warrant to Seller as follows:
(1) Buyer is a limited partnership, duly organized and
validly existing under the laws of the State of Maryland.
(2) Buyer has the right, power and authority to enter into
and perform the terms of this Agreement and to consummate the transactions
contemplated hereby.
(3) This Agreement and all agreements, instruments and
documents herein provided to be executed or to be caused to be executed by
Buyer is (or, in the case of agreements, instruments and documents executed
as of the Closing Date, will be as of the Closing Date) duly authorized,
executed and delivered by, and binding upon, Buyer.
(4) The interest of Buyer in the Partnership, as such
interest is described in the Partnership Agreement, is owned by Buyer free
and clear of any and all security interests, rights, options, claims and
demands (other than any security interests, rights and options granted to
Seller under the Partnership Agreement) of any person claiming by, through
or under Buyer.
5. Additional Conditions.
A. Additional Conditions to Buyer's Obligations. In addition to
the conditions provided in other provisions of this Agreement, Buyer's
obligations hereunder are conditioned on the following:
(1) Performance by Seller. The due performance by Seller of
each and every undertaking and agreement to be performed by it hereunder
(including, but not limited to, the delivery of the items specified in
paragraph 2 hereof) and the truth of each representation and warranty made
in this Agreement by Seller at the time as of which the same is made and as
of the Closing Date as if made on and as of the Closing Date.
(2) Absence of Seller Bankruptcy/Dissolution Event. That at
no time on or before the Closing Date shall any of the following ("Seller
Bankruptcy/Dissolution Event") have been done by, against or with respect
to Seller or any partner in Seller: (a) the commencement of a case under
Title 11 of the U.S. Code, as now constituted or hereafter amended, or
under any other appointment of a trustee or receiver of any property
interest, (b) an assignment for the benefit of creditors, (c) an
attachment, execution or other judicial seizure of a substantial property
interest, (d) the taking of, failure to take or submission to any action
indicating (after reasonable investigation) an inability to meet its
financial obligations as they accrue, or (e) a dissolution.
(3) Title Insurance. The issuance by First American Title
Insurance Company (which company, in its capacity as title insurer
hereunder, is called the "Title Company") of a title insurance policy
satisfying the requirements set forth in Exhibit D" attached hereto and
made a part hereof.
B. Additional Conditions to Seller's Obligations. In addition to
the conditions provided in other provisions of this Agreement, Seller's
obligations hereunder are conditioned on the following:
(1) Performance by Buyer. The due performance by Buyer of
each and every undertaking and agreement to be performed by it or any
member thereof (including, but not limited to, the delivery of the items
specified in paragraph 2 hereof) and the truth of each representation and
warranty made in this Agreement by Buyer at the time as of which the same
is made and as of the Closing Date as if made on and as of the Closing
Date.
(2) Absence of Buyer Bankruptcy/Dissolution Event. That at
no time on or before the Closing Date shall any of the following ("Buyer
Bankruptcy/Dissolution Event") have been done by, against or with respect
to Buyer: (a) the commencement of a case under Title 11 of the U.S. Code,
as now constituted or hereafter amended, or under any other applicable
federal or state bankruptcy law or other similar law, (b) the appointment
of a trustee or receiver of any property interests, (c) an assignment for
the benefit of creditors, (d) an attachment, execution or other judicial
seizure of a substantial property interest, (e) the taking of, failure to
take or submission to any action indicating (after reasonable
investigation) an inability to meet his or its financial obligations as
they accrue, or (f) a dissolution.
C. Outside Date. In the event that for any reason the sale and
purchase herein provided shall not be consummated on or before July 30,
1995, then any party may at any time thereafter, by written notice to the
other parties, terminate this Agreement and the obligations of the parties
hereunder; provided, however, that such termination shall not release any
party from liability for breach of this Agreement. Time is of the essence
with respect to the provisions of this paragraph 5C.
6. Indemnification.
A. Indemnification by Buyer and the Partnership. As of the
Closing Date, Buyer, on behalf of itself, the Partnership as it is
constituted after the closing hereunder, shall hold harmless, indemnify and
defend Seller from and against all claims, rights, demands, obligations,
liabilities, costs and expenses (including reasonable attorneys' fees) of
any kind or nature arising from and after the Closing Date and related to
the Partnership Agreement, the Partnership, the Business Property or any of
the "Collateral Agreements" (and Buyer, on behalf of itself, the
Partnership as it is constituted after the Closing hereunder, shall release
Seller from all such matters). Buyer will deliver to Seller on the Closing
Date a release and indemnity agreement signed by Buyer, the Partnership (as
it is constituted after the Closing Date), confirming the foregoing in form
and substance reasonably satisfactory to Seller. In addition, Buyer shall
hold harmless, indemnify and defend Seller from and against any loss or
damage to Seller resulting from any inaccuracy in or breach of any
representation and warranty of Buyer under this Agreement (or any agreement
executed in connection herewith) or resulting from any breach or default by
Buyer under this Agreement (or any agreement executed in connection
herewith).
B. Indemnification by Seller. Seller shall hold harmless,
indemnify and defend Buyer from and against any loss or damage to Buyer
resulting from any inaccuracy in or breach of any representation and
warranty of Seller under this Agreement (or any agreement executed in
connection herewith) or resulting from any breach or default by Seller
under this Agreement (or any agreement executed in connection herewith).
As of the Closing Date, Seller shall release Buyer from all claims, rights,
demands, obligations, liabilities, costs and expenses (including reasonable
attorneys' fees) of any kind or nature arising prior to the Closing Date
and related to the Partnership Agreement, the Partnership, the Business
Property or any of the Collateral Agreements.
C. General Indemnity Provisions. Each indemnity provided for
under this Agreement shall be subject to the following provisions:
(1) The indemnity shall cover the costs and expenses of the
indemnities, including reasonable attorneys' fees, related to any actions,
suits or judgments incident to any of the matters covered by such
indemnity.
(2) The indemnitee shall notify the indemnitor of any claim
against the indemnitee covered by the indemnity within 30 days after it has
notice of such claim, but failure to notify the indemnitor shall in no case
prejudice the rights of the indemnitee under this Agreement unless the
indemnitor shall be prejudiced by such failure and then only to the extent
the indemnitor shall be prejudiced by such failure. Should the indemnitor
fail to discharge or undertake to defend the indemnitee against such
liability upon learning of the same, then the indemnitee may settle such
liability, and the liability of the indemnitor hereunder 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 reasonable attorneys' fees, incurred by the indemnitee
in effecting such settlement.
D. Definition. As used herein, "Collateral Agreements" means the
individual and collective agreements, instruments, documents and covenants
entered into under or pursuant to or in connection with or concurrently
with the Partnership Agreement and any amendment or amendments made at any
time or times heretofore to any such agreements, instruments, documents or
covenants.
7. 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.
8. DISPOSITION OF DEPOSITS. IF THE TRANSACTION HEREIN PROVIDED
SHALL NOT BE CLOSED BY REASON OF SELLER'S DEFAULT UNDER THIS AGREEMENT OR
THE FAILURE OF SATISFACTION OF THE CONDITIONS DESCRIBED HEREIN, 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 SOLELY 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 NO OTHER ACTION, FOR DAMAGES OR
OTHERWISE, SHALL LIE). 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 AMOUNTS DUE FROM BUYER HEREUNDER.
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 HAS BEEN AND WILL CONTINUE TO 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 18 HEREOF.
Seller's Initials Buyer's Initials
9. Brokers. Except for JMB Realty Corporation (whose fees shall
be paid by Seller), 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 10A shall survive the
closing of the transactions hereunder or the earlier termination of this
Agreement.
10. 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, member, 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, 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 the assets of Seller 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).
11. Further Instruments. Each party will, whenever and as often as
it shall be requested so to do by the other, cause to be executed,
acknowledged or delivered any and all such further instruments and
documents as may be necessary or proper, in the reasonable opinion of the
requesting party, in order to carry out the intent and purpose of this
Agreement or any agreement executed by all the parties hereto in connection
herewith.
12. Survival. All warranties, representations, covenants,
obligations and agreements contained in this Agreement shall survive the
closing hereunder and the transfer and conveyance of the Acquired
Partnership Interest hereunder and any and all performances hereunder.
13. 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.
14. Time of the Essence. Time is of the essence of this Agreement.
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.
16. Governing Law. This Agreement shall be construed and enforced
in accordance with the laws of the State of Wyoming.
17. 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:
35 Century Park-Way
Salt Lake City, Utah 84115
Attention: Mr. G. Rex Frazier
and
David R. Sabey, Esq.
To Seller:
900 North Michigan Avenue
19th Floor
Chicago, Illinois 60611
Attention: Mr. James M. Whittington
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.
18. Legal Costs. Except as set forth in paragraph 4F above, 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.
19. Counterparts. This Agreement may be executed in any number of
counterparts, provided each of the parties hereto executes at least one
counterpart; each such counterpart hereof shall be deemed to be an original
instrument, but all such counterparts, together, shall constitute but one
agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement as of
the day and year first above written.
CARLYLE REAL ESTATE LIMITED PARTNERSHIP-XV,
an Illinois limited partnership,
By JMB REALTY CORPORATION,
a Delaware corporation,
General Partner
By: __________________________________
Name: ________________________________
Title: _______________________________
"Seller"
PRICE DEVELOPMENT COMPANY, LIMITED PARTNERSHIP,
a Maryland limited partnership
By: JP REALTY, INC.,
a Maryland corporation
General Partner
By: ___________________________________
Name: ____________________________
Title: ____________________________
"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: ________________ FIRST AMERICAN TITLE INSURANCE COMPANY,
a ______________________________________
By: ___________________________________
Name: _____________________________
Title: ____________________________
"Escrow Holder"
EXHIBIT LIST
(Carillon Shopping Center; Houston, Texas)
A - List of Existing Partners
B - Description of Partnership Agreement
C - Assignment of Partnership Interest
D - Title Requirements
EXHIBIT "A"
EXISTING PARTNERS
General Partners:
1. Carlyle Real Estate Limited Partnership-XV, an Illinois limited
Partnership.
2. Price Development Company, Limited Partnership, a Maryland
limited partnership.
Limited Partners:
East Ridge Mall Partnership, a Utah general partnership.
EXHIBIT "B"
DESCRIPTION OF PARTNERSHIP AGREEMENT
First Amended and Restated Articles of Limited Partnership of East
Ridge Development Company dated as of September 10, 1985, by and among
Carlyle Real Estate Limited Partnership-XV ("Carlyle"), Price Development
Company ("PDC") and certain limited partners specified therein, together
with that certain First Amended Certificate of Limited Partnership of East
Ridge Development Company dated as of September 10, 1985, Carlyle, PDC and
certain limited partners specified therein.
EXHIBIT "C"
ASSIGNMENT AND ASSUMPTION OF PARTNERSHIP INTEREST
(Eastridge Mall; Casper, Wyoming)
FOR VALUABLE CONSIDERATION, receipt of which is hereby acknowledged,
the undersigned, CARLYLE REAL ESTATE LIMITED PARTNERSHIP-XV, an Illinois
limited partnership ("Seller"), hereby sells, transfers, assigns and
conveys to PRICE DEVELOPMENT COMPANY, LIMITED PARTNERSHIP, a Maryland
limited partnership ("Buyer"), all right, title and interest of Seller in
East Ridge Development Company, a Utah limited partnership ("Partnership"),
as such interest is described in that certain partnership agreement
described in Exhibit "A" attached hereto and made a part hereof (such
agreement together with all other amendments or modifications entered into
prior hereto, being herein collectively called the "Partnership
Agreement"), including (i) all of Seller's right, title and interest in the
capital, profits and losses of the Partnership, and (ii) all of Seller's
right, title and interest in and to all claims, rights and demands against
third (3rd) parties arising from and after the Closing Date and related to
the Partnership Agreement, the Partnership, the "Business Property", or any
of the "Collateral Agreements" (as such terms are defined in the
"Agreement" (as hereinafter defined)).
This Assignment and Assumption is given pursuant to that certain
agreement ("Agreement") dated as of June __, 1995, between the Seller and
Buyer, providing for, among other things, the assignment of the partnership
interests described herein. The covenants, agreements, and limitations
(including, but not limited to, the limitations of liability provided in
paragraph 10B 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 partnership interests are conveyed "as is" without
warranty or representation, except as expressly provided in (and subject to
the limitations of) the Agreement.
DATED: As of June __, 1995.
CARLYLE REAL ESTATE LIMITED PARTNERSHIP-XV,
an Illinois limited partnership
By: JMB REALTY CORPORATION,
a Delaware corporation,
General Partner
By: _____________________
Name: ______________
Title: _____________
As of this ____ day of June, 1995, Buyer hereby accepts the
foregoing assignment of partnership interests assigned hereby 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.
PRICE DEVELOPMENT COMPANY, LIMITED
PARTNERSHIP,
a Maryland limited partnership
By: JP REALTY, INC.,
a Maryland corporation
General Partner
By: ______________________
Name: ________________
Title: _______________
Exhibit "A"
Description of Partnership Agreement
EXHIBIT "D"
TITLE INSURANCE REQUIREMENTS
SELLER'S CLOSING CERTIFICATE
(Eastridge Mall; Casper, Wyoming)
THIS CLOSING CERTIFICATE is made as of the ___ day of June,
1994, by CARLYLE REAL ESTATE LIMITED PARTNERSHIP, an Illinois limited
partnership ("Seller"), to PRICE DEVELOPMENT COMPANY, LIMITED PARTNERSHIP,
a Maryland limited partnership ("Buyer").
R E C I T A L S :
A. Seller and Buyer are parties to that certain Partnership
Interest Purchase Agreement (together with all amendments thereto, the
"Agreement"), dated effective as of June __, 1995, pursuant to which,
subject to the terms and conditions therein set forth, Seller agrees to
sell to Buyer all of Seller's interest in East Ridge Development Company, a
Utah limited partnership (the "Partnership").
B. The Agreement requires the delivery of this Closing
Certificate.
NOW THEREFORE, pursuant to the Agreement, Seller does hereby
represent and warrant to Buyer that:
1. Except as specifically set forth below, each and all of
such representations and warranties of Seller contained in paragraph 4A of
the Agreement are true and correct as of the date hereof as if made on and
as of the date hereof.
Exceptions: See Exhibit "A" attached and made a part hereof.
2. This Certificate is subject to the terms and conditions
of the Agreement (including all limitations on liability and survival
limitations contained therein).
IN WITNESS WHEREOF, the undersigned has executed this
Certificate as of the day and year first above written.
CARLYLE REAL ESTATE LIMITED PARTNERSHIP-XV,
an Illinois limited partnership,
By JMB REALTY CORPORATION,
a Delaware corporation,
General Partner
By: __________________________________
Name: ________________________________
Title: _______________________________
"Seller"
EXHIBIT "A"
EXCEPTIONS TO SELLER'S REPRESENTATIONS AND WARRANTIES
None.
CERTIFICATION OF NON-FOREIGN STATUS
Section 1445 of the Internal Revenue Code provides that a transferee
(buyer) of a U.S. real property interest must withhold tax if the
transferor (seller) is a foreign person. To inform the transferee (buyer)
that withholding of tax is not required upon the disposition of a U.S. real
property interest by CARLYLE REAL ESTATE LIMITED PARTNERSHIP-XV, an
Illinois limited partnership ("Seller"), the undersigned hereby swears,
affirms and certifies the following on behalf of Seller:
1. Seller is not a foreign corporation, foreign partnership,
foreign trust, or foreign estate (as those terms are defined in the
Internal Revenue Code and Income Tax Regulations).
2. Seller's U.S. employer identification number is
______________________.
3. Seller's office address is:
c/o JMB Realty Corporation
900 North Michigan Avenue
Chicago, Illinois 60611
4. Seller understands that this certification may be disclosed to
the Internal Revenue Service by the transferee (buyer) and that any false
statement contained herein could be punished by fine, imprisonment, or
both.
Under penalties of perjury, the undersigned declares that he has
examined this certification and to the best of his knowledge and belief it
is true, correct and complete, and he further declares that he has the
authority to sign this document on behalf of Seller.
Executed as of the ___ day of June, 1995, at Chicago, Illinois.
CARLYLE REAL ESTATE LIMITED PARTNERSHIP-XV,
an Illinois limited partnership,
By JMB REALTY CORPORATION,
a Delaware corporation,
General Partner
By: __________________________________
Name: ________________________________
Title: _______________________________
RELEASE AND INDEMNIFICATION
THIS RELEASE AND INDEMNIFICATION is made as of the ___ day of
June, 1994, by PRICE DEVELOPMENT COMPANY, LIMITED PARTNERSHIP, a Maryland
limited partnership ("Buyer"), and EAST RIDGE DELVEOPMENT COMPANY, a Utah
limited partnership ("Partnership"), to CARLYLE REAL ESTATE LIMITED
PARTNERSHIP-XV, an Illinois limited partnership ("Indemnitee").
R E C I T A L S :
A. Seller and Buyer are parties to that certain Partnership
Interest Purchase Agreement (together with all amendments thereto, the
"Agreement"), dated effective as of June __, 1995, pursuant to which,
subject to the terms and conditions therein set forth, among other things
Seller agrees to sell to Buyer all of Seller's interest in the Partnership.
B. The Agreement requires the delivery of this Release and
Indemnification.
C. Capitalized terms not otherwise defined herein shall have
the meanings ascribed to such terms in the Agreement.
NOW THEREFORE, pursuant to the Agreement, Seller and the
Partnership (as it is constituted after the Closing Date) do hereby jointly
and severally covenant and agree:
1. That they shall jointly and severally hold harmless,
indemnify and defend Seller from and against all claims, rights, demands,
obligations, liabilities, costs and expenses (including reasonable
attorneys' fees) of any kind or nature arising from and after the Closing
Date and related to the Partnership Agreement, the Partnership, the
Business Property or any of the Collateral Agreements, and that Buyer and
the Partnership hereby jointly and severally release Seller from all such
matters.
2. All covenants, obligations and agreements contained in
this Release and Indemnification shall survive the closing under the
Agreement and the transfer and conveyance of the Acquired Partnership
Interest thereunder and any and all performances thereunder.
IN WITNESS WHEREOF, the undersigned have executed this Release
and Indemnification as of the day and year first above written.
PRICE DEVELOPMENT COMPANY, LIMITED PARTNERSHIP,
a Maryland limited partnership
By: JP REALTY, INC.,
a Maryland corporation
General Partner
By: ___________________________________
Name: ____________________________
Title: ____________________________
"Buyer"
EAST RIDGE DEVELOPMENT COMPANY,
a Utah limited partnership
By: PRICE DEVELOPMENT COMPANY, LIMITED
PARTNERSHIP,
a Maryland limited partnership,
General Partner
By: JP REALTY, INC.,
a Maryland corporation
General Partner
By: ___________________________________
Name: ____________________________
Title: ____________________________
"Partnership"
