Exhibit 10.23
BOULDER CREEK APARTMENTS
BRIDGE CREEK APARTMENTS
WILSONVILLE, OREGON
REAL ESTATE SALE AGREEMENT
THIS REAL ESTATE SALE AGREEMENT (this "Agreement") is made as of the __
day of March, 2003, by and between EQR-FANCAP 2000A LIMITED PARTNERSHIP
("FANCAP"), an Illinois limited partnership and EQR-Bridgecreek Vistas, Inc.
("Bridgecreek"), an Illinois corporation ("Bridgecreek" and together with FANCAP
are each referred to herein as a "Seller" and are collectively referred to
herein as "Sellers"), each with an office at c/o Equity Residential, Xxx Xxxxx
Xxxxxxxxx Xxxxx, Xxxxx 000, Xxxxxxx, Xxxxxxxx 00000, and Xxxxxxx Financial
Services, Inc. ("Purchaser"), a Washington corporation with an office at 0000
Xxxxxxx Xxx, Xxxxx 000, Xxxxxxx, Xxxxxxxxxx 00000.
RECITALS
A. FANCAP is the owner of a certain parcel of real estate in the
City of Wilsonville, County of Clackamas, State of Oregon, which parcel is more
particularly described in attached EXHIBIT A-1, and upon which is located a
multi-family residential apartment community commonly known as "Boulder Creek
Apartments" (the "Boulder Creek Property"); (ii) Bridgecreek is the owner of a
certain parcel of real estate in the City of Wilsonville, County of Clackamas,
State of Oregon, which parcel is more particularly described in attached EXHIBIT
A-2, and upon which is located a multi-family residential apartment community
commonly known as "Bride Creek Apartments" (the "Bridge Creek Property" and
together with the Boulder Creek Property, the "Real Property", any of which are
sometimes referred to individually as an "Individual Property").
X. Xxxxxxx desire to sell to Purchaser, and Purchaser desires to
purchase from Sellers, the Property (as such term is hereinafter defined), each
in accordance with and subject to the terms and conditions set forth in this
Agreement.
THEREFORE, in consideration of the above Recitals, the mutual covenants
and agreements herein set forth and the benefits to be derived therefrom, and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, Purchaser and Sellers agree as follows:
1. PURCHASE AND SALE.
Subject to and in accordance with the terms and conditions set
forth in this Agreement, Purchaser shall purchase from Sellers and Sellers shall
sell to Purchaser the Real Property, together with: (i) all buildings and
improvements located on the Real Property and any and all rights, easements,
licenses and privileges appurtenant thereto; (ii) the landlord's right, title
and interest in and to all leases and guarantees thereof (collectively, the
"Leases") affecting the Property or any part thereof, other than any Former
Tenant Lease Files (as defined in Section 14.10 below); (iii) all furniture,
furnishings, fixtures, equipment, (excluding computer hardware and software not
embedded in building systems), tools and other tangible property (excluding the
EQR legal manual and any marketing information containing a logo) (collectively,
the "Personal Property") owned by Sellers, located on the Real Property and used
solely in connection therewith, a list of which is attached hereto as EXHIBIT B;
(iv) all right, title and interest of Sellers under any and all of the union,
maintenance, service, advertising and other like contracts and agreements with
respect to the ownership and operation of the Property (collectively, the
"Service Contracts") (a list of all such contracts and agreements currently in
effect is attached hereto AS EXHIBIT C); all to the extent applicable to the
period from and after the Closing (as such term is hereinafter defined); and (v)
to the extent in Sellers' possession and control, all intangible property
relating to the design, development, operation, management and use of the Real
Property, all certificates of occupancy, zoning variances, building, use or
other permits, approvals, authorizations, licenses and consents obtained from
any governmental authority in connection with such development, use, operation
or management, any telephone numbers and listings used in connection with the
operation of the Real Property and the leasing thereof, goodwill in connection
with the Real Property, all soils tests, architectural drawings, plans and
specifications relating to all or any portion of the Real Property, all payment
and performance bonds or warranties or guarantees relating to the Real Property
and all trade names, fictitious business names, and other source and business
1
identifiers contained in or related to the Real Property, including, without
limitation, the names of the apartment communities, (collectively, "Intangible
Property") (items (i) through (v) above, together with the Real Property, are
collectively referred to in this Agreement as the "Property"). All of the
foregoing expressly excludes all property owned by tenants or other users or
occupants of the Property.
2. PURCHASE PRICE.
The total consideration to be paid by Purchaser to Sellers for
the Property is Thirty Five Million and no/100 Dollars ($35,000,000) (the
"Purchase Price"), a portion of which shall be allocated to each Individual
Property as set forth on EXHIBIT D attached hereto. The Purchase Price shall be
paid as follows:
2.1 XXXXXXX MONEY.
2.1.1 Sellers, Purchaser and a duly authorized
representative of the Walnut Creek California Office of First American Title
Insurance Company ("Escrowee") shall concurrently herewith execute Xxxxxxx Money
Escrow Instructions, in the form attached hereto as EXHIBIT E, pursuant to which
Purchaser shall deliver to Escrowee xxxxxxx money in the sum of Two Hundred
Thousand and No/100ths Dollars ($200,000), which sum, together with the
Extension Deposit (as defined in Section 4.1 below) together with any interest
earned thereon net of investment costs, are referred to in this Agreement as the
"Xxxxxxx Money". The Xxxxxxx Money shall be invested as Purchaser so directs.
Any and all interest earned on the Xxxxxxx Money shall be reported to
Purchaser's federal tax identification number.
2.1.2 If the transaction closes in accordance with the
terms of this Agreement, at Closing, the Xxxxxxx Money shall be delivered by
Escrowee to Sellers as part payment of the Purchase Price. If the transaction
fails to close due to a default on the part of Purchaser, Sellers shall have the
remedy provided for in Section 7.2 below. If the transaction fails to close due
to a default on the part of Sellers, Purchaser shall have the remedy options
provided for in Section 7.1 below.
3. EVIDENCE OF TITLE.
3.1 TITLE INSURANCE. Prior to execution of this
Agreement, Sellers shall have delivered to Purchaser the owner's policy of title
insurance for each Individual Property issued to Sellers (or their respective
predecessors in interest, as the case may be) (the "Original Title Policies").
Sellers shall, within fifteen (15) days after the date of this Agreement,
deliver to Purchaser a current commitment for an ALTA Owner's Title Insurance
Policy (the "Title Commitment") for each Individual Property, in the amount of
the Purchase Price allocated thereto, issued by First American Title Insurance
Company (the "Title Insurer") and a copy of all underlying exceptions referenced
therein. Sellers shall cause the Title Insurer to agree to issue to the
Purchaser at Closing, an updated ALTA Standard Coverage Owner's Policy of Title
Insurance for each Individual Property and Improvements (the "Owner's Policy"),
in connection with Sellers' (or Sellers' predecessors in interest) purchase of
the Real Property, dated as of the Closing Date (as hereinafter defined), in the
amount of the Purchase Price, and insuring good and indefeasible fee simple
title to the Real Property and Improvements to be in Purchaser subject only to
the Permitted Exceptions (as defined in Section 3.3 below). Purchaser may
request that the Title Company issue, but Sellers shall have no obligation to
pay for or to cause the Title Company to issue, other available endorsements to
the Owner's Policy and/or an extended coverage policy. Except as permitted under
this Agreement, no additional encumbrances may be created on the Real Property
by Sellers after the date of this Agreement without the prior consent of
Purchaser, which consent may not be unreasonably withheld, conditioned or
delayed, except that if such encumbrance is created after expiration of the
Review Period, then Purchaser shall have the right to withhold its consent to
such encumbrance in its sole discretion.
3.2 SURVEY. Prior to the execution of this Agreement,
Sellers shall have delivered to Purchaser one copy of the most recent existing
plat of survey (if any) of each Individual Property (the "Existing Surveys") in
Sellers' possession and control. Purchaser may obtain, at Purchaser's sole
option, election and expense, and deliver to Sellers, and the Title Insurer, on
or before the date that is ten (10) days prior to the last day of the Review
Period (as hereinafter defined) updates to Existing Surveys (the
2
"Updated Surveys") prepared by the surveyors who provided the Existing Surveys
or another surveyor selected by Purchaser.
3.3 TITLE REVIEW. Purchaser shall have until the end of
the Review Period (the "Title Review Period"), to give Sellers a detailed notice
objecting to any exception or condition contained in the Title Commitments or
shown on the Updated Surveys, or the New Surveys, if any; provided, however,
that Purchaser shall not have the right to object to any matter disclosed by the
Original Title Policy or the Existing Survey. If Purchaser does not give notice
of any objections to Sellers within the Title Review Period, Purchaser shall be
deemed to have approved the title as shown in the Title Commitment, the title
exceptions, and all matters shown on the Updated Surveys. If Purchaser provides
timely objections, Sellers shall have five (5) days after receipt of Purchaser's
notice (the "Title Cure Period") in which to cure or attempt to cure Purchaser's
objections; provided, however that Sellers shall not have any obligation to cure
any of Purchaser's objections. Sellers may bond around any mechanics' or
materialmen's lien(s) and abstract(s) of judgment to the Title Company's
reasonable satisfaction. If Purchaser provides timely objections and all of
Purchaser's objections are not cured within the Title Cure Period for any
reason, then, within five (5) days after the last day of the Title Cure Period,
Purchaser shall, as its sole and exclusive remedy, waiving all other remedies,
either: (a) terminate this Agreement by giving a termination notice to Sellers,
at which time Escrowee shall return the Xxxxxxx Money to Purchaser and the
parties shall have no further rights, liabilities, or obligations under this
Agreement (other than those that expressly survive termination); or (b) waive
the uncured objections by proceeding to Closing and thereby be deemed to have
approved the Purchaser's title as shown in the Title Commitment, the title
exception documents, and the Updated Surveys and New Surveys, if any. If Sellers
do not timely receive notice of Purchaser's election to terminate under this
Section 3.3, Purchaser will be deemed to have waived the uncured objections and
to approve the Purchaser's title as shown in the Commitment, the title exception
documents, and the Updated Survey. All exceptions shown on the Original Title
Policies, the Existing Surveys, the Title Commitments, the title exception
documents, or the Updated Surveys that are not cured within the Title Cure
Period shall be the "Permitted Exceptions".
4. CLOSING.
4.1 CLOSING DATE. The "Closing" of the transaction
contemplated by this Agreement (that is, the payment of the Purchase Price, the
transfer of title to the Property, and the satisfaction of all other terms and
conditions of this Agreement) shall occur at 11:00 a.m. on June 11, 2003, at
Walnut Creek California office of the Title Insurer, or at such other time and
place as Sellers and Purchaser shall agree in writing. The "Closing Date" shall
be the date of Closing. If the date for Closing above provided for falls on a
Saturday, Sunday or legal holiday, then the Closing Date shall be the next
business day. Notwithstanding the foregoing, Purchaser and Sellers shall each
have one option (the "Option") to extend the Closing Date for a period of thirty
(30) days. The Option(s) may be exercised by Purchaser or Sellers, as the case
may be, upon written notice to the other party on or before the date that is
five (5) business days prior to the then scheduled Closing Date, and in the case
of Purchaser, upon receipt by Escrowee of an additional deposit of xxxxxxx money
in the amount of $25,000 (the "Extension Deposit").
4.2 SELLERS' CLOSING DELIVERIES. At Closing, Sellers
shall execute and deliver to Purchaser the following for each Individual
Property:
4.2.1 a "special" Warranty Deed, subject
to the Permitted Exceptions in the form attached hereto as
EXHIBIT F and acceptable to the Title Insurer;
4.2.2 a xxxx of sale in the form attached
hereto as EXHIBIT G;
4.2.3 a letter advising tenants under the
Leases of the change in ownership of the Property in the form
attached hereto as EXHIBIT H;
4.2.4 an Assignment and Assumption of
Leases, Security Deposits and Service Contracts in the form
attached hereto as EXHIBIT I;
3
4.2.5 an affidavit stating, under
penalty of perjury, Seller's U.S. taxpayer identification
number and that Seller is not a foreign person within the
meaning of Section 1445 of the Internal Revenue Code;
4.2.6 such evidence of Seller's power and
authority as the Title Insurer may reasonably require;
4.2.7 a closing statement ("Closing
Statement") setting forth the prorations and adjustments to
the Purchase Price as required by Section 4.4 below.
4.2.8 an update of the Rent Roll
(hereinafter defined) in the form of the Rent Roll attached
hereto as EXHIBIT J, dated no earlier than five (5) business
days prior to the Closing Date, certified by Seller to be to
true and complete.
4.3 PURCHASER'S CLOSING DELIVERIES. At Closing,
Purchaser shall execute and deliver to Sellers the following:
4.3.1 the funds required pursuant to
Section 2.2 above;
4.3.2 a counterpart original of the
Closing Statement referenced in 4.2.6 above;
4.3.3 counterpart originals of the
Assignment and Assumption of Leases, Security Deposits and
Service Contracts referenced in Section 4.2.4 above); and
4.3.4 such evidence of Purchaser's power
and authority as the Title Insurer may reasonably require.
4.4 CLOSING PRORATIONS AND ADJUSTMENTS. Sellers shall
prepare the Closing Statement of the prorations and adjustments required by this
Agreement and submit it to Purchaser at least three (3) business days prior to
the Closing Date. The following items are to be prorated, adjusted or credited
(as appropriate) as of the close of business on the Closing Date, it being
understood that for purposes of prorations and adjustments, Sellers shall be
deemed the owner of the Property on such day and Purchaser shall be deemed the
owner of the Property as of the day after the Closing Date:
4.4.1 real estate and personal property taxes and
assessments (on the basis of the most recent ascertainable tax xxxx if the
current xxxx is not then available);
4.4.2 the rent payable by tenants under the
Leases; provided, however, that rent and all other sums which are due and
payable to Sellers by any tenant but uncollected as of the Closing shall not be
adjusted, but Purchaser shall cause the rent and other sums for the period prior
to Closing to be remitted to Sellers if, as and when collected. At Closing,
Sellers shall deliver to Purchaser a schedule of all such past due but
uncollected rent and other sums owed by tenants. Purchaser shall include the
amount of such rent and other sums in the first bills thereafter submitted to
the tenants in question after the Closing, and shall continue to do so for
twelve (12) months thereafter. Purchaser shall promptly remit to Sellers any
such rent or other sums paid by scheduled tenants;
4.4.3 the amount of unapplied security deposits
under the Leases and any interest accrued thereon for the benefit of the tenant
thereunder pursuant to the Lease or applicable law;
4.4.4 water, electric, telephone and all other
utility and fuel charges, fuel on hand (at cost plus sales tax); provided,
however, that any deposits with utility companies shall remain the property of
the Seller and shall not be prorated or credited (to the extent possible,
utility prorations will be handled by meter readings on the day immediately
preceding the Closing Date);
4.4.5 amounts due and prepayments under the
Service Contracts;
4
4.4.6 assignable license and permit fees; and
4.4.7 other similar items of income and expenses
of operation.
Except with respect to general real estate and personal property taxes
(which shall be reprorated upon the issuance of the actual bills, if necessary),
any proration which must be estimated at Closing shall be reprorated and finally
adjusted as soon as practicable after the Closing Date; otherwise, subject to
the provisions of Section 4.4.2 above, all prorations shall be final.
4.5 TRANSACTION COSTS.
Sellers shall pay for any base premium due in connection with the
Owners' Policies (the "Base Premium") which shall be net of any reissue discount
which may be available from the Title Insurer in connection with the delivery of
an existing owner's policy of title insurance, and one-half (1/2) of Escrowee's
standard escrow fees. All other closing and transaction costs (including,
without limitation, title insurance premiums or other title costs in excess of
the Base Premium, recording charges, any costs relating to the Updated Survey,
any transfer taxes and documentary stamps and one-half (1/2) of Escrowee's
standard escrow fees) shall be paid by Purchaser, whether or not the Closing
occurs. Sellers and Purchaser shall, however, be responsible for the fees of
their respective attorneys.
4.6 POSSESSION.
4.6.1 Upon Closing, Sellers shall deliver to
Purchaser possession of the Property, subject to such matters as are permitted
by or pursuant to this Agreement.
4.6.2 Upon Closing, Sellers shall deliver to
Purchaser all keys, card keys and other security and access devises for the Real
Property, the Lease files and all plans and specifications and warranties in
Sellers' possession.
5. CASUALTY LOSS AND CONDEMNATION. Prior to Closing, the risk of
loss shall remain with Sellers. If, prior to Closing, the Property or any part
thereof shall be condemned, or destroyed or damaged by fire or other casualty,
Sellers shall promptly so notify Purchaser. If any Property or any part thereof
shall be condemned such that damages are in excess of $250,000 (as determined by
Sellers in good faith) or if the Property or any part thereof shall be destroyed
or damaged by fire or other casualty the repair of which would cost in excess of
$250,000 (as determined by Sellers in good faith), then, within twenty (20) days
of such casualty or condemnation, Sellers shall notify Purchaser of its good
faith determination of the resulting damages. At the option of either Sellers or
Purchaser, which option shall be exercisable, if at all, by written notice
thereof to the other party within ten (10) business days after Purchaser
receives written notice of such fire, earthquake or other casualty or
condemnation and Sellers' good faith determination of resulting damages, this
Agreement may be terminated. If either Purchaser or Sellers elect to terminate
this Agreement, the Xxxxxxx Money shall be returned to Purchaser by Escrowee, in
which event this Agreement shall, without further action of the parties, become
null and void and neither party shall have any rights or obligations under this
Agreement. In the event that neither Purchaser nor Sellers exercise the option
to terminate the Agreement set forth above, or if the condemnation or casualty
is below the $250,000 threshold described above, then the Closing shall take
place on the Closing Date and Purchaser shall be entitle to receive the
condemnation proceeds in the event of a condemnation, or in the event of a
casualty, a credit against the Purchase Price payable at Closing in the total
amount of the estimated proceeds to Sellers under any applicable hazard or other
insurance policy or policies in effect with respect to the Property, (including,
without limitation, a credit for the estimated amount of lost rental income
subsequent to the Closing Date, if any,) all as determined by the applicable
insurance representatives, PLUS the amount of any applicable deductibles MINUS
any sums expended by Sellers in repairs or restoration; provided, however that
in no event shall the total credit to Purchaser exceed the amount of the loss.
In addition, in the event of the foregoing, Purchaser shall deliver to Sellers
at Closing a release in form reasonably satisfactory to Sellers whereby
Purchaser releases Sellers from all ongoing liability and/or claims in
connection with such condemnation or casualty.
5
Notwithstanding anything to the contrary contained in this Section 5,
in the event any condemnation below the $250,000 threshold described above
either (i) prohibits, as a matter of applicable law, the rebuilding or repair of
the Property as it currently exists or (ii) prevents access to the Property from
a publicly dedicated street, then Purchaser may elect to terminate this
Agreement by written notice thereof to Sellers within ten (10) business days of
such determination, and upon the exercise of such option by Purchaser, this
Agreement shall become null and void, the Xxxxxxx Money shall be returned to
Purchaser and neither party shall have any further liability or obligations
hereunder, except those that expressly survive termination.
6. BROKERAGE.
Seller agrees to pay upon Closing (but not otherwise) a brokerage
commission due Tilbury, Xxxxxxxx & Xxxxxxx ("Tilburg") pursuant to a separate
agreement for services rendered in connection with the sale and purchase of the
Property. Purchaser agrees to pay upon Closing (but not otherwise) a brokerage
commission due Pinnacle Realty Management Company ("Pinnacle") pursuant to a
separate agreement for services rendered in connection with the sale and
purchase of the Property. Sellers acknowledge that Sellers have been informed by
Purchaser that the sole shareholder of Purchaser has an interest in Pinnacle.
Sellers and Purchaser shall each indemnify and hold the other harmless from and
against any and all claims of all brokers and finders (other than Pinnacle and
Tilburg) claiming by, through or under the indemnifying party and in any way
related to the sale and purchase of the Property, this Agreement or otherwise,
including, without limitation, attorneys' fees and expenses incurred by the
indemnified party in connection with such claim. This Section 6 shall survive
the termination of this Agreement.
7. DEFAULT AND REMEDIES.
7.1 PURCHASER'S PRE-CLOSING REMEDIES. Notwithstanding
anything to the contrary contained in this Agreement, if Sellers fail to perform
in accordance with the terms of this Agreement at or prior to Closing, then, as
Purchaser's sole and exclusive remedy hereunder and at Purchaser's option,
either (i) the Xxxxxxx Money shall be returned to Purchaser, in which event this
Agreement shall be null and void, and neither party shall have any rights or
obligations under this Agreement except those which expressly survive
termination, or (ii) upon notice to Sellers not more than ten (10) days after
Purchaser becomes aware of which failure, and provided an action is filed within
thirty (30) days thereafter, Purchaser may seek specific performance of this
Agreement, but not damages. Purchaser's failure to seek specific performance as
aforesaid shall constitute its election to proceed under clause (i) above.
7.2 SELLERS' PRE-CLOSING REMEDIES. If Purchaser fails to
perform in accordance with the terms of this Agreement at Closing, Sellers shall
have the right to terminate this Agreement by delivering written notice to
Purchaser whereupon the Xxxxxxx Money shall be forfeited to Sellers as
liquidated damages (which shall be Sellers' sole and exclusive remedy against
Purchaser), it being agreed between the parties hereto that the actual damages
to Sellers in such event are impractical to ascertain and the amount of the
Xxxxxxx Money is a reasonable estimate thereof and shall be and constitute valid
liquidated damages, at which time this Agreement shall be null and void and
neither party shall have any rights or obligations under this Agreement.
7.3 PRE-CLOSING KNOWLEDGE. If at any time after the
execution of this Agreement, either Purchaser or Sellers becomes aware of
information which makes a representation and warranty contained in this
Agreement to become untrue in any material respect, said party shall promptly
disclose said information in writing to the other party hereto. Provided, that
the party making the representation has taken no willful act to cause the
representation to become untrue, said party shall not be in default under this
Agreement and the sole remedy of the other party shall be to either (i)
terminate this Agreement by written notice, in which event this Agreement,
without further action of the parties, shall become null and void such that
neither party shall have any further rights or obligations under this Agreement
except for those rights and obligations which by their terms expressly survive
any such termination, or (ii) elect to proceed to Closing, in which case such
party shall be deemed to have waived its rights with respect to any such breach
of representation or warranty. Notwithstanding anything to the contrary set
forth in this Agreement, Purchaser and Sellers are prohibited from making any
claims against the other party hereto after the Closing with respect to any
breaches of the other party's representations and warranties contained in this
Agreement that the claiming party has actual knowledge of prior to the Closing.
6
7.4 POST-CLOSING REMEDIES. From and after the Closing,
Sellers and Purchaser shall, subject to the terms and conditions of this
Agreement, have such rights and remedies as are available at law or in equity,
except that neither Sellers nor Purchaser shall be entitled to recover from the
other consequential or special damages.
8. CONDITIONS PRECEDENT.
8.1 CONDITION PRECEDENT - PURCHASER.
8.1.1 Purchaser shall have from the date hereof
until 5:00 p.m. (Central Standard Time) on April 24, 2003 within which to
inspect the Property and to complete such other due diligence regarding the
Property as Purchaser in its discretion desires (the "Review Period"). If
Purchaser determines that the Property is unsuitable for its purposes or for any
other reason or no reason elects not to continue with the transaction
contemplated by this Agreement and so notifies Sellers in writing within the
Review Period, the Xxxxxxx Money shall be returned to Purchaser, at which time
this Agreement shall be null and void and neither party shall have any further
rights or obligations under this Agreement except those which expressly survive
termination. If Purchaser elects to proceed to Closing, then on or prior to the
expiration of the Review Period, Purchaser shall deliver to Sellers written
notice of Purchaser's election. Purchaser's failure to terminate this Agreement
within the Review Period shall be conclusively deemed a waiver by Purchaser of
the condition contained in this Section 8. If applicable, then within ten (10)
days of execution of this Agreement, Sellers and Purchaser agree to complete and
execute the Disclosure of Information on Lead-Based Paint and/or Lead
Based-Paint Hazard, a form of which is attached hereto as EXHIBIT I, and
Purchaser acknowledges such form satisfies Sellers' obligations under 40 C.F.R.
Part 745.
8.1.2 Purchaser shall have from the date hereof
until 5:00 p.m. (Central Standard Time) through May 27, 2003 (the "Finance
Period") to secure a firm loan commitment from a lender containing terms and
conditions reasonably acceptable to Purchaser. If Purchaser is unable to procure
a firm loan commitment on or before the expiration of the Finance Period, and so
notifies Sellers in writing within the Finance Period, the Xxxxxxx Money shall
be returned to Purchaser, at which time this Agreement shall be null and void
and neither party shall have any further rights or obligations under this
Agreement except those which expressly survive termination. Purchaser's failure
to terminate this Agreement within the Finance Period shall be conclusively
deemed a waiver by Purchaser of the condition contained in this Section 8.1.2.
8.1.3 Purchaser's right of inspection pursuant to
this Section 8 shall be subject to the rights of tenants under the Leases and
other occupants and users of the Property. Before entering upon the Property,
Purchaser shall furnish to Sellers evidence of general liability insurance
coverage (naming Sellers as additional insureds) of not less than $2,000,000. No
inspection shall be undertaken without reasonable prior notice to Sellers.
Sellers shall have the right to be present at any or all inspections. Neither
Purchaser nor its agents or representatives shall contact any tenants without
the prior consent of Sellers. No inspection shall involve the taking of samples
or other physically invasive procedures without the prior written consent of
Sellers. Notwithstanding anything to the contrary contained in this Agreement,
Purchaser shall indemnify, defend (with counsel acceptable to Sellers) and hold
Sellers harmless from and against any and all damage to person or property
(including, without limitation, attorneys' fees incurred in connection
therewith) caused by Purchaser's exercise of its right of inspection as provided
for in this Section 8. The indemnification obligation of Purchaser in this
Section 8.1.3 shall survive termination of this Agreement.
8.1.4 At Closing, all management contracts
relating to the Property shall be terminated with no liability to Purchaser.
8.2 CONDITION PRECEDENT - SELLERS. It shall be a
condition of Sellers' obligation to close hereunder that Sellers shall receive
the consent of the Board of Trustees of Equity Residential to complete the
transaction described in this Agreement on or before April 11, 2003. If Sellers
does not obtain such consent, Sellers shall reimburse Purchaser for the actual
third party due diligence costs incurred by Purchaser, not to exceed $50,000.
7
9. SECTION 1031 EXCHANGE.
Sellers may structure the disposition of the Property as a
like-kind exchange under Internal Revenue Code Section 1031 at Sellers' sole
cost and expense. Purchaser shall reasonably cooperate therein, provided that
Purchaser shall incur no costs, expenses or liabilities in connection with
Sellers' exchanges. Sellers shall indemnify, defend and hold Purchaser harmless
therefrom and Purchaser shall not be required to take title to or contract for
purchase of any other property. If Sellers use a qualified intermediary to
effectuate the exchange, any assignment of the rights or obligations of Sellers
hereunder shall not relieve, release or absolve Sellers of its obligations to
Purchaser.
10. REPRESENTATIONS AND WARRANTIES.
10.1 SELLERS' REPRESENTATIONS AND WARRANTIES. Each Seller
represents and warrants to Purchaser on the date of this Agreement as follows:
10.1.1 FANCAP is a limited partnership, duly
organized, validly existing and in good standing under the laws of the State of
Illinois and Bridgecreek is a corporation duly organized, validly existing and
in good standing under the laws of the State of Illinois .
10.1.2 Seller has full power, right and authority
to enter into and perform their obligations under this Agreement. The execution,
delivery and performance of this Agreement by Seller have been duly and properly
authorized by proper corporate action in accordance with applicable law and with
the Agreements of Limited Partnership and Limited Liability Company of Sellers,
as the case may be.
10.1.3 To the Seller's knowledge, except as set
forth on EXHIBIT L, attached hereto Sellers have received no written notice of
any pending litigation with respect to Sellers or the Property which would
affect the Property after Closing.
10.1.4 To Seller's knowledge, other than with
respect to matters set forth on EXHIBIT I, it has not received from any
governmental authority written notice of any violation of any building, fire or
health code or any other statute applicable to the Property; provided, however,
Seller make no representation or warranty with respect to the Property's
compliance with the Americans with Disabilities Act.
10.1.5 To Seller's knowledge, EXHIBIT C attached
hereto lists all of the Service Contracts affecting the Property and the vendor
under each Service Contract.
10.1.6 To Seller's knowledge, EXHIBIT K attached
hereto describes, in all material respects, the following information concerning
the Leases affecting the Property as of the date hereof: (a) unit number, (b)
name of tenant, (c) rental rate, (d) expiration date of the Lease, (e) amount of
security deposit, and (f) move-in date. Seller makes no representation with
respect to any rental rate or other information provided in EXHIBIT K that is
not described in the preceding sentence.
10.2 SELLER'S KNOWLEDGE. When used in this Agreement, the
term "to Seller's knowledge" shall mean shall mean and be limited to the actual
(and not imputed, implied or constructive) current knowledge of Xxxxxxxxxxx
Xxxx, First Vice President of Equity Residential and Xxxxxxx Xxxx, asset manager
for the Property. Notwithstanding anything to the contrary set forth in this
Agreement, none of the foregoing individuals shall have any personal liability
or liability whatsoever with respect to any matters set forth in this Agreement
or any of Sellers' representations and/or warranties herein being or becoming
untrue, inaccurate or incomplete.
10.3 SURVIVAL. The representations and warranties set
forth in this Section 10 shall, shall be deemed to be remade as of Closing and
shall survive the Closing and the delivery of the Deed for a period of ninety
(90) days from the Closing Date. Notice of any claim as to a breach of any
representation or warranties must be made to Sellers prior to the expiration of
such ninety (90) day period or it shall be deemed a waiver of the right to
assert such claim.
8
11. AS-IS.
11.1 AS-IS CONDITION. ACKNOWLEDGING PURCHASER'S
OPPORTUNITY TO INSPECT THE PROPERTY, PURCHASER AGREES TO TAKE THE PROPERTY "AS
IS", "WHERE IS", WITH ALL FAULTS AND CONDITIONS THEREON. ANY INFORMATION,
REPORTS, STATEMENTS, DOCUMENTS OR RECORDS ("DISCLOSURES") PROVIDED OR MADE TO
PURCHASER OR ITS CONSTITUENTS BY SELLERS, ITS AGENTS OR EMPLOYEES CONCERNING THE
CONDITION (INCLUDING, BUT NOT LIMITED TO, THE ENVIRONMENTAL CONDITION) OF THE
PROPERTY SHALL NOT BE REPRESENTATIONS OR WARRANTIES, UNLESS SPECIFICALLY SET
FORTH IN THIS AGREEMENT. PURCHASER SHALL NOT RELY ON SUCH DISCLOSURES, BUT
RATHER, PURCHASER SHALL RELY ONLY ON ITS OWN INSPECTION OF THE PROPERTY.
PURCHASER ACKNOWLEDGES THAT THE PURCHASE PRICE REFLECTS AND TAKES INTO ACCOUNT
THAT THE PROPERTY IS BEING SOLD "AS IS".
11.2 NO ADDITIONAL REPRESENTATIONS. PURCHASER ACKNOWLEDGES
AND AGREES THAT EXCEPT AS SPECIFICALLY SET FORTH IN SECTION 10 OF THIS AGREEMENT
SELLERS HAS NOT MADE, DOES NOT MAKE AND SPECIFICALLY DISCLAIMS ANY
REPRESENTATIONS, WARRANTIES, PROMISES, COVENANTS, AGREEMENTS OR GUARANTIES OF
ANY KIND OR CHARACTER WHATSOEVER, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN,
PAST, PRESENT OR FUTURE, OF, AS TO, CONCERNING OR WITH RESPECT TO (A) THE
NATURE, QUALITY OR CONDITION OF THE PROPERTY, INCLUDING, WITHOUT LIMITATION, THE
WATER, SOIL AND GEOLOGY, (B) THE INCOME TO BE DERIVED FROM THE PROPERTY, (C) THE
SUITABILITY OF THE PROPERTY FOR ANY AND ALL ACTIVITIES AND USES WHICH PURCHASER
MAY CONDUCT THEREON, (D) THE COMPLIANCE OF OR BY THE PROPERTY OR ITS OPERATION
WITH ANY LAWS, RULES, ORDINANCES OR REGULATIONS OF ANY APPLICABLE GOVERNMENTAL
AUTHORITY OR BODY, (E) THE HABITABILITY, MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE OF THE PROPERTY, OR (F) ANY OTHER MATTER WITH RESPECT TO THE
PROPERTY, AND SPECIFICALLY DISCLAIMS ANY REPRESENTATIONS REGARDING TERMITES OR
WASTES, AS DEFINED BY THE U.S. ENVIRONMENTAL PROTECTION AGENCY REGULATIONS AT 40
C.F.R., OR ANY HAZARDOUS SUBSTANCE, AS DEFINED BY THE COMPREHENSIVE
ENVIRONMENTAL RESPONSE COMPENSATION AND LIABILITY ACT OF 1980 ("CERCLA"), AS
AMENDED, AND REGULATIONS PROMULGATED THEREUNDER. EXCEPT TO THE EXTENT ANY CLAIM,
DAMAGE, LOSS OR LIABILITY RESULTS FROM ANY ACT OR OMISSION OF SELLERS,
PURCHASER, ITS SUCCESSORS AND ASSIGNS, HEREBY WAIVE, RELEASE AND AGREE NOT TO
MAKE ANY CLAIM OR BRING ANY COST RECOVERY ACTION OR CLAIM FOR CONTRIBUTION OR
OTHER ACTION OR CLAIM AGAINST SELLERS OR ITS AFFILIATES, DIRECTORS, OFFICERS,
EMPLOYEES, AGENTS, ATTORNEYS, OR ASSIGNS (COLLECTIVELY, "SELLERS AND ITS
AFFILIATES") BASED ON (A) ANY FEDERAL, STATE, OR LOCAL ENVIRONMENTAL OR HEALTH
AND SAFETY LAW OR REGULATION, INCLUDING CERCLA OR ANY STATE EQUIVALENT, OR ANY
SIMILAR LAW NOW EXISTING OR HEREAFTER ENACTED, (B) ANY DISCHARGE, DISPOSAL,
RELEASE, OR ESCAPE OF ANY CHEMICAL, OR ANY MATERIAL WHATSOEVER, ON, AT, TO, OR
FROM THE PROPERTY; OR (C) ANY ENVIRONMENTAL CONDITIONS WHATSOEVER ON, UNDER, OR
IN THE VICINITY OF THE PROPERTY.
11.3 PURCHASER'S DUE DILIGENCE. PURCHASER REPRESENTS TO
SELLERS THAT PURCHASER HAS CONDUCTED, OR WILL CONDUCT PRIOR TO CLOSING, SUCH
INVESTIGATIONS OF THE PROPERTY, INCLUDING, BUT NOT LIMITED TO, THE PHYSICAL AND
ENVIRONMENTAL CONDITIONS THEREOF, AS PURCHASER DEEMS NECESSARY OR DESIRABLE TO
SATISFY ITSELF AS TO THE CONDITION OF THE PROPERTY AND THE EXISTENCE OR
NONEXISTENCE OR CURATIVE ACTION TO BE TAKEN WITH RESPECT TO ANY HAZARDOUS OR
TOXIC SUBSTANCES ON OR DISCHARGED FROM THE PROPERTY, AND WILL RELY SOLELY UPON
SAME AND NOT UPON ANY INFORMATION PROVIDED BY OR ON BEHALF OF SELLERS OR ITS
AGENTS OR EMPLOYEES WITH RESPECT THERETO. UPON CLOSING, PURCHASER SHALL ASSUME
THE RISK THAT ADVERSE MATTERS, INCLUDING BUT NOT LIMITED TO, CONSTRUCTION
DEFECTS AND ADVERSE PHYSICAL AND ENVIRONMENTAL CONDITIONS, MAY NOT HAVE BEEN
9
REVEALED BY PURCHASER'S INVESTIGATIONS, AND PURCHASER, UPON CLOSING, SHALL BE
DEEMED TO HAVE WAIVED, RELINQUISHED AND RELEASED SELLERS (AND SELLER'S OFFICERS,
DIRECTORS, SHAREHOLDERS, EMPLOYEES AND AGENTS) FROM AND AGAINST ANY AND ALL
CLAIMS, DEMANDS, CAUSES OF ACTION (INCLUDING CAUSES OF ACTION IN TORT), LOSSES,
DAMAGES, LIABILITIES, COSTS AND EXPENSES (INCLUDING REASONABLE ATTORNEYS' FEES)
OF ANY AND EVERY KIND OR CHARACTER, KNOWN OR UNKNOWN, WHICH PURCHASER MIGHT HAVE
ASSERTED OR ALLEGED AGAINST SELLERS (AND SELLER'S OFFICERS, DIRECTORS,
SHAREHOLDERS, EMPLOYEES AND AGENTS) AT ANY TIME BY REASON OF OR ARISING OUT OF
ANY LATENT OR PATENT CONSTRUCTION DEFECTS OR PHYSICAL CONDITIONS, VIOLATIONS OF
ANY APPLICABLE LAWS AND ANY AND ALL OTHER ACTS, OMISSIONS, EVENTS, CIRCUMSTANCES
OR MATTERS REGARDING THE PROPERTY.
THE PROVISIONS OF THIS SECTION 11 SHALL SURVIVE THE CLOSING OR ANY
TERMINATION OF THIS AGREEMENT.
12. LIMITATION OF LIABILITY.
12.1 LIMITATION OF LIABILITY. Notwithstanding anything to
the contrary contained herein, if the Closing shall have occurred (and Purchaser
shall not have waived, relinquished or released any applicable rights in further
limitation), the aggregate liability of Sellers arising pursuant to or in
connection with the representations, warranties, indemnifications, covenants or
other obligations (whether express or implied) of Sellers under this Agreement
(or any document executed or delivered in connection herewith) shall not exceed
$150,000 for each Individual Property.
12.2 NO PERSONAL LIABILITY OF SELLERS' DIRECTORS AND
EMPLOYEES. No constituent partner in or agent of Seller, nor any advisor,
trustee, director, officer, employee, beneficiary, shareholder, participant,
representative or agent of any corporation or trust that is or becomes a
constituent partner in Seller (including, but not limited to, Equity
Residential) 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
Purchaser and its successors and assigns and, without limitation, all other
persons and entities, shall look solely to Sellers' assets for the payment of
any claim or for any performance, and Purchaser, 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
Purchaser 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 obligations to restore or contribute). The provisions of this
Section 12.2 shall survive the Closing or any termination of this Agreement.
13. OPERATION OF THE PROPERTY
From and after the date hereof until the Closing Date or
earlier termination of this Agreement:
13.1 ORDINARY COURSE OF BUSINESS. Seller shall operate the
Property in its ordinary course of business and shall not sell, further pledge,
or otherwise transfer or dispose of all or any part of any Property (except for
such items of Personal Property as become obsolete or are disposed of in the
ordinary course), subject the provisions of Section 5 above.
13.2 LEASES. Without notice to and the prior written
consent of Purchaser, Seller shall not terminate, modify, extend, amend or renew
any Lease or enter into any new Lease except in accordance with its customary
business practices; provided, however, any concessions being given at the
Property shall be "up-front" concessions which shall not extend beyond the
Closing Date.
10
13.3 SERVICE CONTRACTS. Seller shall not enter into any
new written service contract with respect to the Property that will not be
cancelable by Purchaser without penalty upon no greater than thirty (30) days
notice, without the prior written consent of Purchaser.
13.4 PROPERTY INSURANCE. Seller shall maintain in full
force and effect the property insurance on the Property which is in effect on
the date of this Agreement, except as otherwise consented to by Purchaser.
14. MISCELLANEOUS.
14.1 INDEMNIFICATION CLAIMS. The indemnifications
contained in this Agreement shall be subject to the following provisions: the
indemnitee shall notify indemnitor of any such claim against indemnitee within
thirty (30) days after it has written notice of such claim, but failure to
notify indemnitor shall in no case prejudice the rights of indemnitee under this
Agreement unless indemnitor shall be prejudiced by such failure and then only to
the extent of such prejudice. Should indemnitor fail to discharge or undertake
to defend indemnitee against such liability within fifteen (15) business days
after the indemnitee gives the indemnitor written notice of the same, then
indemnitee may settle such liability, and indemnitor's liability to indemnitee
shall be conclusively established by such settlement, the amount of such
liability to include both the settlement consideration and the reasonable costs
and expenses, including attorneys' fees, incurred by indemnitee in effecting
such settlement. The obligations set forth in this Section 14.1 shall survive
the Closing or earlier termination of this Agreement.
14.2 ENTIRE AGREEMENT. All understandings and agreements
heretofore had between Seller and Purchaser with respect to the Property are
merged in this Agreement, which alone fully and completely expresses the
agreement of the parties.
14.3 ASSIGNMENT. Neither this Agreement nor any interest
hereunder shall be assigned or transferred by Purchaser without the prior
consent of Seller, except to any entity controlled directly or indirectly by
Xxxx X. Xxxxxxx or to an entity in which Xxxx X. Xxxxxxx has an interest.
Subject to the foregoing, this Agreement shall inure to the benefit of and shall
be binding upon Seller and Purchaser and their respective successors and
assigns.
14.4 NO MODIFICATION. This Agreement shall not be modified
or amended except in a written document signed by Seller and Purchaser.
14.5 TIME OF THE ESSENCE. Time is of the essence of this
Agreement.
14.6 GOVERNING LAW. This Agreement shall be governed and
interpreted in accordance with the laws of the State in which the Property is
located.
14.7 NOTICE. All notices, requests, demands or other
communications required or permitted under this Agreement shall be in writing
and delivered personally, by certified mail, return receipt requested, postage
prepaid, by overnight courier (such as Federal Express), or by facsimile
transmission with a copy to follow by certified mail, return receipt requested,
postage paid or by overnight courier, addressed as follows:
1. If to Seller:
c/o Equity Residential
Xxx Xxxxx Xxxxxxxxx Xxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxxxxxxxx Xxxxx
With a copy to:
11
Equity Residential
Xxx Xxxxx Xxxxxxxxx Xxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxxxxxx Xxxxx
2. If to Purchaser:
Xxxxxxx Financial Services, Inc.
0000 Xxxxxxx Xxx, Xxxxx 000
Xxxxxxx, Xxxxxxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxxx Xxxxxxx
With a copy to:
Xxxxxx, Pepper & Shefelman PLLC
0000 0xx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxxxxxx Xxxxx
All notices given in accordance with the terms hereof shall be deemed received
on the next business day if sent by overnight courier, on the same day if sent
by facsimile before 5 P.M. (Central Standard Time) on a business day, on the
third (3rd) business day following deposit with the United States Mail as a
registered or certified matter with postage prepaid, or when delivered
personally or otherwise received. Either party hereto may change the address for
receiving notices, requests, demands or other communication by notice sent in
accordance with the terms of this Section 14.7.
14.8 WAIVER OF TRIAL BY JURY. In any lawsuit or other
proceeding initiated by Purchaser under or with respect to this Agreement,
Purchaser waives any right it may have to trial by jury. In addition, Purchaser
waives any right to seek rescission of the transaction provided for in this
Agreement.
14.9 CONFIDENTIALITY. Except as may be required by law,
without the prior written consent of Seller, and unless the Closing occurs,
Purchaser shall not disclose to any third party the existence of this Agreement
or any term or condition thereof or the results of any inspections or studies
undertaken in connection herewith. Purchaser agrees to keep confidential and not
to use, other than in connection with its determination whether to proceed with
the purchase of the Property in accordance with Section 8 hereof, any of the
documents, material or information regarding the Property supplied to Purchaser
by Seller or by any third party at the request of Seller, including, without
limitation any environmental site assessment reports furnished to Purchaser,
except Purchaser may share such documents, material and information with
Purchaser's consultants on a "need to know" basis, unless Purchaser is compelled
to disclose such documents, material or information by law or by subpoena. In
the event that the Closing does not occur in accordance with the terms of this
Agreement, Purchaser shall promptly return to Seller all of the documents,
materials and information regarding the Property supplied to Purchaser by Seller
or at the request of Seller. The provisions of this Section 14.9 shall survive
the termination of this Agreement.
14.10 ASSIGNMENT OF INTEREST IN REPORTS AND STUDIES. If for
any reason Purchaser does not consummate the Closing, then Purchaser shall, upon
Sellers' request and payment of Purchaser's fees and costs therefor, assign and
transfer to Seller all of its right, title and interest in and to any and all
studies, reports, surveys and other information, data and/or documents relating
to the Property or any part thereof prepared by or at the request of Purchaser,
its employees and agents, and shall deliver to Seller copies of all of the
foregoing.
12
14.11 FORMER TENANT LEASE FILES. Notwithstanding anything
to the contrary set forth in this Agreement, any and all files at the Property
that relate to tenants who have vacated their units at the Property and with
whom there exists a dispute or a set of facts that could lead to a dispute
between Seller and such tenant regarding the payment of sums due and owing to
Seller (collectively, "Former Tenant Lease Files"), together with any and all
rights, causes of action and/or claims relating thereto shall not be transferred
or assigned to Purchaser at Closing but shall remain the property of Seller. Any
and all such Former Tenant Lease Files shall be removed from the Property by
Seller on or before the Closing Date.
14.12 NO MEMORANDUM OF AGREEMENT. This Agreement or any
notice or memorandum hereof shall not be recorded in any public record. A
violation of this prohibition shall constitute a material breach by Purchaser,
entitling Seller to terminate this Agreement.
14.13 PREVAILING PARTY ATTORNEY FEES. If either Seller or
Purchaser files suit to enforce the obligations of the other party under this
Agreement, the prevailing party shall be entitled to recover the reasonable fees
and expenses of its attorneys.
14.13 COUNTERPART SIGNATURES. This Agreement may be signed
in any number of counterparts each of which shall be deemed to be an original
and all of which taken together shall constitute one and the same instrument.
14.14 DESIGNATION OF ESCROWEE AS REPORTING PERSON. Seller
and Purchaser hereby designate Escrowee to act as and perform the duties and
obligations of the "reporting person" with respect to the transaction
contemplated by this Agreement for purposes of 26 C.F.R. Section 1.6045-4(e)(5)
relating to the requirements for information reporting on real estate
transaction closed on or after January 1, 1991. In this regard, Seller and
Purchaser each agree to execute at Closing, and to cause the Escrowee to execute
at Closing, a Designation Agreement, designating Escrowee as the reporting
person with respect to the transaction contemplated by this Agreement.
IN WITNESS WHEREOF, Seller and Purchaser have executed and delivered
this Agreement as of the date first above written.
SELLER:
EQR-Bridgecreek Vistas, Inc., an Illinois corporation
By:
---------------------------------
Its:
---------------------------------
EQR- FANCAP 2000A Limited Partnership, an Illinois limited
partnership
By: ERP Operating Limited Partnership, an Illinois limited
partnership
By: Equity Residential, a Maryland real estate
investment trust, its general partner
By:
-----------------------------
Its:
-----------------------------
13
PURCHASER:
Xxxxxxx Financial Services, Inc., a Washington corporation
By:
---------------------------
Its:
---------------------------
14
EXHIBITS
A1-A2 Legal Descriptions
B - List of Personal Property
C - List of Service Contracts
X - Xxxxxxx Money Escrow Instructions
E - Special Warranty Deed
F - Xxxx of Sale
G - Notice to Tenants
H - Assignment and Assumption of Leases, Security Deposits and
Service Contracts
I - Form of Disclosure of Information on Lead Based Paint
and/or Lead-Based Paint Hazards
J - Rent Roll
K - Pending Litigation
15
EXHIBIT A
LEGAL DESCRIPTION
16
EXHIBIT B
LIST OF PERSONAL PROPERTY
17
EXHIBIT C
LIST OF SERVICE CONTRACTS
18
EXHIBIT D
________________________________ APARTMENTS
____________, ____________
XXXXXXX MONEY ESCROW INSTRUCTIONS
Escrow Officer:___________________
Escrow No.:_______________________
Phone No.:________________________
Facsimile No.:____________________
Date:____________, 200__
TO: ___________________________
___________________________
___________________________
Attn: __________________
The amount of __________________ Dollars ($_____________) (the "Escrow Deposit")
is deposited with the New York office of _____________________ in escrow
by __________________________________, the "Purchaser" under that
certain Agreement for Purchase of Real Estate and Related Property (the
"Agreement"), dated _________, 200__, with __________________________,
a______________________________, as the "Seller".
As escrowee, you are hereby directed to hold, deal with and dispose of the
Escrow Deposit in accordance with the following terms and conditions:
1. You are to hold the Escrow Deposit until: (a) you are in receipt of a
joint order by the undersigned Seller and Purchaser as to the
disposition of the Escrow Deposit; or (b) you are in receipt of a
written demand (the "Demand") from either Seller or Purchaser for the
payment of the Escrow Deposit or any portion thereof. If you receive a
Demand from Purchaser on or before the expiration of the Review Period,
as such term is defined in the Agreement (as the same may be amended),
then you shall immediately comply with the Demand without the necessity
of giving notice to Seller and notwithstanding any contrary instruction
you may receive from Seller. Upon receipt of any Demand (other than a
Demand from Purchaser on or before the expiration of the Review Period
as provided above), you are directed to so notify the other party,
enclosing a copy of the Demand. If within five (5) days after the
non-demanding party has received or is deemed to have received your
notice of your receipt of the Demand, you have not received from the
non-demanding party its notice of objection to the Demand, then you are
to disburse the Escrow Deposit as requested by the Demand. If within
said five-day period you receive from the non-demanding party its
notice of objection to the Demand, then you are to continue to hold the
Escrow Deposit until you are in receipt of a joint order as aforesaid,
but after sixty (60) days you may deposit the Escrow Deposit with a
Court of competent jurisdiction.
2. Notwithstanding the foregoing, as escrowee, you are hereby expressly
authorized to regard and to comply with and obey any and all orders,
judgments or decrees entered or issued by any Court, and in case you
obey or comply with any such order, judgment or decree of any Court,
you shall not be liable to either of the parties hereto or any other
person or entity by reason of such compliance, notwithstanding any such
order, judgment or decree be entered without jurisdiction or be
subsequently reversed, modified, annulled, set aside or vacated. In
case of any suit or proceeding regarding these Escrow Instructions, to
which you are or may at any time be a party, the undersigned Seller and
Purchaser agree that the non-prevailing party shall pay to you upon
demand all reasonable costs and expenses incurred by you in connection
herewith.
19
3. Any escrow fee to be charged by you is to be borne equally by the
undersigned Seller and Purchaser.
4. As escrowee, you shall invest the Escrow Deposit in an interest-bearing
savings or money market account or short term U.S. Treasury Bills or
similar cash equivalent securities, as the undersigned Purchaser may
direct. Any interest earned on the Escrow Deposit, after you deduct
your customary investment charges, shall become and be deemed to be a
part of the Escrow Deposit.
5. All notices or other communications hereunder shall be in writing and
shall be personally delivered or sent by overnight courier (such as
Federal Express), by facsimile transmission or by first class United
States Mail, postage prepaid, registered or certified (return receipt
requested) to the respective addresses for the Seller, Purchaser and
escrowee as herein provided. A notice is given on the date it is
personally delivered, sent by overnight courier or facsimile
transmission, or deposited with the United States Mail for delivery as
aforesaid. A notice is received on the date it is personally delivered,
the day after sent if sent by overnight courier or facsimile
transmission or, if sent by mail as aforesaid, on the date noted on the
return receipt.
6. Purchaser and Seller may act hereunder either directly or through their
respective attorneys:
The Purchaser's attorney is:
____________________________, Esq.
Equity Residential
Two X. Xxxxxxxxx Xxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxxx 00000
Phone: 312/928-____
Facsimile: 312/454-0039
The Sellers' attorney is:
__________________________________
__________________________________
__________________________________
Phone: _(_______)_________________
Facsimile: _(___)_________________
7. This Escrow Agreement is being entered into to implement the Agreement
and shall not (nor be deemed to) amend, modify or supersede the
Agreement or act as a waiver of any rights, obligations or remedies set
forth therein; provided, however, that you may rely solely upon these
Escrow Instructions.
8. In case of any suit or proceeding at law or in equity regarding the
Xxxxxxx Money or these Escrow Instructions, the non-prevailing party
shall pay the prevailing party all costs and expenses (including, but
not limited to, attorney's fees) incurred by the prevailing party, and
if such prevailing party shall recover judgment in any such suit or
preceding, such costs and expenses (including but not limited to
attorneys' fees) shall be included in and as a part of such judgment.
9. This Escrow Agreement may be signed in any number of counterparts each
of which shall be deemed to be an original and all of which taken
together shall constitute one and the same instrument.
20
Agreed and Acknowledged this _____ day of _________________, 200__.
PURCHASER: SELLER:
, a
------------------------------------- ------------------------------ --
----------------------------
By:
-------------------------------,
a
-------------------------------,
its
-------------
By:
----------------------------------
Name:
--------------------------------
Its: By:
--------------------------------- -----------------------------
Its:
----------------------------
Address: Address:
-------------------------- c/o Equity Residential
-------------------------- Two North Riverside Plaza, Suite 400
-------------------------- Xxxxxxx, Xxxxxxxx 00000
Attn: Attn:
-------------------- --------------------
Phone: / Phone: 312/928-
------------------- ----
Agreed and Acknowledged this ______ day of _______________, 200__.
-------------------------------------
[TITLE COMPANY]
By:
-----------------------------------
Title:
21
EXHIBIT E
[CONFORM TO JURISDICTIONAL REQUIREMENTS]
When Recorded, Mail to:
__________________
__________________
__________________
__________________
SPECIAL WARRANTY DEED
For the consideration of the sum of Ten Dollars ($10.00) and other
valuable considerations received, ______________, a(n) _______________
("Grantor"), does hereby convey to _______________, a(n) _______________
("Grantee"), all of Grantor's right, title and interest in and to the following
described real property (the "Property") situated in __________County,
_________, together with all improvements thereon and all of Grantor's interest
in any rights and privileges solely appurtenant thereto:
SEE EXHIBIT A ATTACHED HERETO AND BY THIS REFERENCE MADE A
PART HEREOF.
SUBJECT TO: the permitted exceptions set forth on EXHIBIT B attached
hereto and by this reference made a part hereof.
AND GRANTOR hereby binds itself and its successors to warrant and
defend the title against all of the acts of Grantor and no other, subject to the
matters set forth above.
IN WITNESS WHEREOF, Grantor has caused this Special Warranty Deed to be
executed this ______ day of _______, 200_.
GRANTOR:
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
22
STATE OF ILLINOIS )
) ss.
COUNTY OF XXXX )
The foregoing instrument was acknowledged before me this ___ day of ______,
200_, by__________________ , the _______________ of _______________, the general
partner of __________________, for and on behalf thereof.
---------------------------------------
Notary Public
(SEAL)
My Commission Expires:
23
EXHIBIT F
XXXX OF SALE
[NAME, CITY, STATE]
THIS XXXX OF SALE (this "Xxxx of Sale") is executed as of the__________
day of ___________, 200_, by _________________, a(n) _____________________
("Seller"), having offices at c/o Equity Residential at Xxx Xxxxx Xxxxxxxxx
Xxxxx, Xxxxx 000, Xxxxxxx, Xxxxxxxx 00000, in favor of __________________ a(n)
________________ ("Purchaser"), having offices at ____________________________.
1. REAL PROPERTY. The "Real Property" shall mean the real
property located in the County of ___________, State of _____________, commonly
known as "_______________" and located at ______________________________.
2. PERSONAL PROPERTY. The "Personal Property" shall mean those
certain articles of personal property used in connection with the operation of
the Real Property which are described in EXHIBIT A attached to this Xxxx of
Sale.
3. SALE. For good and valuable consideration received by Seller,
the receipt and sufficiency of which are hereby acknowledged, Seller hereby
sells, assigns and transfers the Personal Property to Purchaser. Seller
covenants and agrees to warrant and forever defend title to the Personal
Property unto Purchaser against any and all persons lawfully claiming the whole
or any part thereof by, through or under Seller, and none other. Except as set
forth in the immediately preceding sentence, Seller makes no warranties or
representations as to the Personal Property. The Personal Property is
transferred "AS IS" and ALL WARRANTIES OF QUALITY, FITNESS AND MERCHANTABILITY
ARE HEREBY EXCLUDED.
IN WITNESS WHEREOF, Seller has executed this Xxxx of Sale as of the day
and year first above written.
SELLER:
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
24
EXHIBIT G
TENANT NOTICE LETTER
_______________ APARTMENTS
[CITY, STATE]
________, 200__
Dear Tenant:
This is to advise you that as of _____, 200_, the __________ Apartment
Complex has been sold by ______________ to __________________.
All future payments of rent and other charges due under your lease,
including the rent payment due _________, 200_, should be paid to __________
Apartments and delivered to the rental office. Your security deposit, if any,
has also been transferred to _______________, and the new owner will be
responsible for its return to you pursuant to the terms of your lease agreement.
Very truly yours,
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
25
EXHIBIT H
ASSIGNMENT AND ASSUMPTION
OF LEASES, SECURITY DEPOSITS AND SERVICE CONTRACTS
[NAME, CITY, STATE]
THIS ASSIGNMENT AND ASSUMPTION OF LEASES, SECURITY DEPOSITS AND
SERVICE CONTRACTS (this "Assignment") is entered into as of the day ______ of
______, 200_, between __________________, a(n) _____________ ("Assignor"),
having an office at c/o Equity Residential, Xxx Xxxxx Xxxxxxxxx Xxxxx, Xxxxx
000, Xxxxxxx, Xxxxxxxx 00000 and ________________, a(n) _______________,
("Assignee") having an office at _______________________.
1. PROPERTY. The "Property" means the real property located in
the City of ____________, County of __________, State of _________, commonly
known as "__________ Apartments", together with the building, structures and
other improvements located thereon.
2. LEASES. The "Leases" means those leases, tenancies, rental
agreements and occupancy agreements affecting the Property which are described
in EXHIBIT A attached to this Assignment.
3. SECURITY DEPOSITS. "Security Deposits" means those security
deposits held by or for Assignor on account of tenants under the Leases as such
deposits and with respect to which Assignee received a credit at the closing of
the transaction with respect to which this Assignment has been executed and
delivered. The Security Deposits are set forth on attached EXHIBIT A.
4. SERVICE CONTRACTS. "Service Contracts" means those
maintenance, supply and service contracts relating to the Property which are
described in EXHIBIT B attached to this Assignment.
5. ASSIGNMENT. For good and valuable consideration received by
Assignor, the receipt and sufficiency of which are hereby acknowledged, Assignor
hereby grants, transfers and assigns to Assignee the entire right, title and
interest of Assignor in and to the Leases, the Security Deposits and the Service
Contracts, but reserving unto Assignor all uncollected rent attributable to the
period prior to the date hereof pursuant to Section 4.4.2 of that certain Real
Estate Sale Agreement for the Property by and between Assignor and Assignee (as
may have been amended from time to time, the "Agreement").
6. ASSUMPTION. Assignee hereby assumes the covenants, agreements
and obligations of Assignor as landlord or lessor under the Leases as of the
date of this Assignment, and Assignee further assumes all liability of Assignor
for the proper refund or return of the Security Deposits if, when and as
required by the Leases. Assignee hereby assumes the covenants, agreements and
obligations of Assignor under the Service Contracts which are applicable to the
period and required to be performed from and after the date of this Assignment,
but not otherwise.
7. ATTORNEYS' FEES. If either Assignee or Assignor, or their
respective successors or assigns, file suit to enforce the obligations of the
other party under this Assignment, the prevailing party shall be entitled to
recover the reasonable fees and expenses of its attorneys.
8. SUCCESSORS AND ASSIGNS. This Assignment shall be binding upon
and inure to the benefit of Assignor and Assignee and their respective
successors and assigns.
9. LIMITED LIABILITY. By accepting this Assignment, Assignee
agrees that it will look only to the proceeds of the Property for the
performance or liability for nonperformance of any and all obligations of
Assignor hereunder, it being expressly understood and agreed that neither
Assignor nor any shareholder, officer or director thereof or any other person or
entity shall have any personal liability or obligation of any kind or nature
whatsoever under this Assignment. This Paragraph 9 is subject to, and not in
limitation of, the limitations on liability provided in Section 12 of the
Agreement.
26
10. COUNTERPARTS. This Assignment may be signed in any number of
counterparts each of which shall be deemed to be an original and all of which
taken together shall constitute one and the same instrument.
[Signature Page Follows]
27
IN WITNESS WHEREOF, Assignor and Assignee have executed and delivered
this Assignment the day and year first above written.
ASSIGNOR:
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
ASSIGNEE:
------------------------------------
28
EXHIBIT I
FORM OF DISCLOSURE OF INFORMATION ON
LEAD-BASED PAINT AND/OR LEAD-BASED PAINT HAZARDS
[NAME, CITY, STATE]
LEAD WARNING STATEMENT
Every purchaser of any interest in residential real property on which a
residential dwelling was built prior to 1978 is notified that such property may
present exposure to lead from lead-based paint that may place young children at
risk of developing lead poisoning. Lead poisoning in young children may produce
permanent neurological damage, including learning disabilities, reduced
intelligence quotient, behavioral problems, and impaired memory. Lead poisoning
also poses a particular risk to pregnant women. Seller of any interest in
residential real property is required to provide the Purchaser with any
information on lead-based paint hazards from risk assessments or inspections in
Sellers' possession and notify the Purchaser of any known lead-based paint
hazards. A risk assessment or inspection for possible lead-based paint hazards
is recommend prior to purchase.
SELLERS' DISCLOSURE
(a) Presence of lead-based paint and/or lead-based paint hazards (check (i) or
(ii) below):
(i) _______________ Known lead-based paint and/or lead-based paint hazards are
present in the housing (explain).
(ii) _______________ Seller has no knowledge of lead-based paint and/or
lead-based paint hazards in the housing.
(b) Records and reports available to Seller (check (i) or (ii) below):
(i) _______________ Seller has provided Purchaser with all available records and
reports pertaining to lead-based paint and/or lead-based paint hazards in the
housing (list documents below).
__________________________________________________________
(ii) _______________ Seller has no reports or records pertaining to lead-based
paint and/or lead-based paint hazards in the housing.
PURCHASER'S ACKNOWLEDGMENT (INITIAL)
(c) _______________ Purchaser has received copies of all information listed
above.
(d) _______________ Purchaser has received the pamphlet PROTECT YOUR FAMILY FROM
LEAD IN YOUR HOME.
(e) _______________ Purchaser has (check (i) or (ii) below):
(i) _______________ received a 10-day opportunity (or mutually agreed upon
period) to conduct a risk assessment or inspection for the presence of
lead-based paint and/or lead-based paint hazards; or
(ii) _______________ waived the opportunity to conduct a risk assessment or
inspection for the presence of lead-based paint and/or lead-based paint hazards.
AGENT'S ACKNOWLEDGMENT (INITIAL)
(f) _______________ Agent has informed Seller of Sellers' obligations under 42
U.S.C. 4852d and is aware of his/her responsibility to ensure compliance.
CERTIFICATION OF ACCURACY
The following parties have reviewed the information above and certify, to the
best of their knowledge, that the information they have provided is true and
accurate.
SELLER:
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
29
PURCHASER:
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
30
EXHIBIT J
RENT ROLL
31
EXHIBIT K
PENDING LITIGATION
32
EXHIBIT L
LEASING PARAMETERS
33
EXHIBIT M
HAZARDOUS MATERIAL DISCLOSURES
34
