Exhibit 10(o)
DEPOSIT RECEIPT AND REAL ESTATE PURCHASE CONTRACT
Phoenix , Arizona August 2 , 19 95
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Received from Xxxxxxxxx Properties, Inc. and/or Nominee ("Purchaser"), the
sum of Twenty Five Thousand and no/100------- Dollars ($ 25,000.00 ) in the form
of a check to be deposited in Escrow upon acceptance from Seller , as an xxxxxxx
money deposit on account of the purchase price of One Million One Hundred
Seventy-Five Thousand and no/100------- Dollars ($ 1,175,000.00 ) for that
certain property situated in the City of Phoenix , County of Maricopa , State of
Arizona, and described as follows (the "Property"): Westside Business Center,
34th Drive and Flower Street Buildings 3, 4 and 5 Parcel Numbers:
000-00-000,060,061, 062 and 068
TERMS OF SALE:
1. The deposit shall be immediately deposited into escrow with the
below-named Escrow Holder. The remainder of the purchase price shall be paid as
follows:
$25,000.00 Xxxxxxx Money Deposit
$1,150,000.00 Payable at Close of Escrow
$1,175,000.00 Total Sales Price
2. Upon mutual execution of this Contract, the parties shall execute
instructions to Lawyers Title of Arizona Karma Xxxxxxxxxx (the "Escrow Holder"),
to consummate the purchase in accordance with the terms and provisions hereof.
The provisions hereof shall constitute joint instructions to the Escrow Holder;
provided, however, that the parties shall execute such additional instructions
as they may agree upon or as requested by the Escrow Holder not inconsistent
with the provisions hereof. Said escrow shall provide for a closing of on or
before September 30, 1995. Escrow fees shall be shared by Seller and Purchaser
on a 50/50 basis.
3. As soon as reasonably possible following opening of escrow, Seller shall
pay for and furnish to Purchaser a Preliminary Title Report on the Property,
together with full copies of all exceptions of record set forth therein
("Exceptions"), including but not limited to covenants, conditions,
restrictions, reservations, easements, rights and rights of way of record,
assessments, liens and other matters of record. Purchaser shall have ten (10)
days after receipt of said Preliminary Title Report, together with full copies
of said Exceptions, within which to notify the Seller and the Escrow Holder, in
writing, of Purchaser's reasonable disapproval of any Exceptions shown in said
Title Report. Failure of Purchaser reasonably to disapprove any Exception(s)
within the aforementioned time limit shall be deemed an approval of said
Preliminary Title Report*. The Policy of Title Insurance shall be a standard
coverage policy in the amount of the total purchase price and shall be paid for
by Seller. * See Addendum A, Paragraph 1.
4. In the event that the foregoing contingency or any contingency to this
Contract has not been eliminated or satisfied within the time limits and
pursuant to the provisions herein, unless Purchaser elects to waive the specific
contingency by written notice to the Seller and to the Escrow Holder, the
Contract resulting from Seller's acceptance hereof shall be deemed null and
void, the deposit shall be returned to Purchaser and the escrow shall be
cancelled.
5. Seller warrants that Seller has not received nor is Seller aware of any
notification from any governmental authority having jurisdiction, requiring any
work to be done on the Property. Seller further warrants that in the event any
such notice or notices are received by Seller prior to the close of escrow and
Seller is unable to or does not elect to perform the work required in said
notice at Seller's sole cost and expense on or before the close of escrow, said
notices shall be submitted to Purchaser for his examination and written
approval. Should Purchaser fail to approve said notice and thereby elect not to
acquire the Property subject to the effect of same, within five (5) days from
the date Seller submits said notice to Purchaser, then this Contract shall be
cancelled without further liability to either party, and all deposits returned
to Purchaser.
6. Property taxes, rentals, and operating or other expenses, if any, shall
be prorated as of the date of close of escrow, and Seller shall pay the cost of
any stamps to be attached to the deed or other similar fees or taxes in
accordance with the requirements of any lawful authority. Any advance Tenant
deposits or payments shall be prorated and credited accordingly to Purchaser. As
to assessments, the information pertaining thereto shall be set forth in the
aforementioned Preliminary Title Report and, if approved, Purchaser, at
Purchaser's option, may either take title subject to the unpaid principal
balance thereof with this sum to be credited towards the total purchase price
and to apply towards the cash sum required to be paid through escrow or require
Seller to remove said lien for assessments at the time of closing.
7. Purchaser reserves the right to take title to the subject property in a
name or assignee other than shown above; provided, however, that such right
shall not relieve Purchaser of his liabilities hereunder as a principal obligor.
8. Purchaser shall have 30 days from August 11, 1995 within which to
investigate the Property, its value, zoning, environmental and building matters,
its condition including, but not limited to the presence of asbestos, hazardous
materials and underground storage tanks--and its suitability for Purchaser's
intended use. Seller hereby warrants that to the best of its knowledge the
premises described herein and the improvements thereon do not violate the
applicable building or zoning regulations and that Seller is unaware of any
material defect in the Property or improvements thereon with the exception of
the following, to wit: None . (If none -- so indicate.) If Purchaser gives
written notice to Seller by 5:00 PM of the final date of the above-referenced
period, of dissatisfaction with any of the referenced matters, and Seller and
Purchaser have not entered into a mutually agreeable resolution of the matter by
5:00 PM 7 days thereafter, this Contract shall be deemed cancelled and Purchaser
shall be entitled to return of deposit. If Purchaser fails to give written
notice of dissatisfaction by 5:00 PM of the first-referenced period, then
Purchaser's right to object to such matters shall be deemed waived.
9. If there is any loss or damage to the Property between the date hereof
and the date of closing of escrow, by reason of fire, vandalism, flood,
earthquake or act of God, the risk of loss shall be on the Seller, provided,
however that if the cost of repairing such loss or damage would exceed 10
percent of the purchase price, (a) Purchaser may elect to cancel this Contract
unless Seller agrees in writing to pay the cost of repairing all such loss or
damage, and (b) Seller may elect to cancel this Agreement unless Purchaser
agrees in writing either to accept the Property without offset or additional
consideration or to pay the cost of repairing such loss or damage to the extent
such cost would exceed 10 percent of the purchase price.
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11. Any addendum or exhibit attached hereto and either signed or initialed
by the parties shall be deemed a part hereof.
12. Time is of the essence of this Contract.
13. The following shall apply in the event of default by either party under
this Contract:
(a) IF PURCHASER IS IN DEFAULT (check one):
X SPECIFIC PERFORMANCE/DAMAGES
Seller may elect to treat this Contract as cancelled, in which
case all payments and things of value received hereunder shall
be forfeited and retained by Seller, and Seller may recover
such damages as may be proper, or Seller may elect to treat
this Contract as being in full force and effect and Seller
shall have the right to specific performance, or damages, or
both.
LIQUIDATED DAMAGES
All payments and things of value received hereunder shall be
forfeited by Xxxxxxxxx and retained by Seller and both parties
shall thereafter be released from all obligations hereunder.
It is agreed that such payments and things of value are
LIQUIDATED DAMAGES and (except as provided in subsection (c))
are SELLER'S SOLE AND ONLY REMEDY for Purchaser's failure to
perform the obligations of this Contract. Seller expressly
waives the remedies of specific performance and additional
damages.
(b) IF SELLER IS IN DEFAULT:
Purchaser may elect to treat this Contract as cancelled in
which case all payments and things of value received hereunder
shall be returned and Purchaser may recover such damages as
may be proper, or Purchaser may elect to treat this Contract
as being in full force and effect and Purchaser shall have the
right to specific performance or damages, or both.
(c) COSTS AND EXPENSES:
Anything to the contrary herein notwithstanding, in the event
of any litigation or arbitration arising out of this Contract,
the prevailing party shall be awarded all reasonable costs and
expenses, including attorneys' fees and expert witness fees.
14. AGENCY DISCLOSURE
Seller and Purchaser each warrant that they have dealt with no other real
estate brokers in connection with this transaction except: Xxx & Associates
(Xxxx Xxxxxxx) , who represents the Seller , and Xxxxxx Commercial (Xxx Xxxxxx)
, who represents the Buyer.
15. Xxxxxx agrees to pay Xxxxxx a real estate brokerage commission for
services rendered in effecting this sale, in the amount called for in Seller's
contract with Broker for the sale of the Property, if any, and otherwise in the
amount of 5 % of the accepted sales price.
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Sale proceeds sufficient to pay the commission are hereby assigned to
Xxxxxx, and Xxxxxx Holder is hereby instructed to pay said commission to Xxxxxx
out of Xxxxxx's proceeds at the close of escrow. This instruction shall not be
withdrawn or modified without Broker's written consent. Nothing contained herein
shall negate any additional rights Broker may have under any other contract
between Seller and Broker for the sale of the Property.
16. In the event that Xxxxxx deems it necessary to file an interpleader
action in court to resolve a dispute over the xxxxxxx money deposit referenced
herein, Purchaser and Seller authorize Broker to draw from the xxxxxxx money
deposit an amount necessary to advance the legal fees and costs of bringing the
interpleader action. The amount of deposit remaining after advancing those costs
shall be interpleaded into court in accordance with state law. Purchaser and
Seller further agree that the defaulting party shall pay any further court costs
and reasonable attorney's fees incurred by Xxxxxx in bringing or being involved
in such action.
17. The Foreign Investment in Real Property Tax Action ("FIRPTA"), IRC
1445, requires that every purchaser of U.S. real property must, unless an
exemption applies, deduct and withhold from Seller's proceeds ten percent (10%)
of the gross sales price. The primary exemptions which might be applicable are:
(a) seller provides purchaser with an affidavit under penalty of perjury, that
seller is not a "foreign person", as defined in FIRPTA, or (b) seller provides
purchaser with a "qualifying statement," as defined in FIRPTA, issued by the
Internal Revenue Service. Seller and Xxxxxxxxx agree to execute and deliver as
appropriate, any instrument, affidavit and statement, and to perform any acts
reasonably necessary to carry out the provisions of FIRPTA and regulations
promulgated thereunder.
18. In the event that this offer is not accepted by Seller on or before 5
o'clock p m, August 11 , 19 , this offer shall become null and void, and the
deposit made herewith shall be returned to Purchaser. Purchaser hereby agrees to
purchase the above-described property for the price and upon the terms and
conditions herein expressed. All tenders and notices required hereunder shall be
made and given to either of the parties hereto at their respective addresses
herein set forth. Purchaser hereby acknowledges receipt of a copy of this
Contract.
19. The parties hereto agree to comply with all applicable federal, state
and local laws, regulations, codes, ordinances and administrative orders having
jurisdiction over the parties, property or the subject matter of this Agreement,
including, but not limited to, the 1964 Civil Rights Act and all amendments
thereto, the Foreign Investment in Real Property Tax Act, the Comprehensive
Environmental Response Compensation and Liability Act, and The Americans With
Disabilities Act.
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20. See Addendum A attached hereto as an intrigal part of this purchase
contract.
Date: August 15, 1995
Purchaser: Xxxxxxxxx Properties, Inc. and/or
Nominee
a(n)
By:
Title:
By:
Title:
Address:
The undersigned Seller hereby accepts this Contract and agrees to sell the
Property to Purchaser for the price and on the terms and conditions set forth
herein. Seller hereby acknowledges receipt of a copy of this Contract.
Date:
Seller: Connecticut General Equity
Properties-I Limited Partnership
a(n) By: CIGNA Investments, Inc.
By: Xxxxxxx X. Xxxxxxx
Title: Managing Director
By:
Title:
Address: 000 Xxxxxxx Xxxxx Xxxx
Xxxxxxxxxx, XX 00000
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CONSULT YOUR ADVISORS - This document has been prepared for approval by your
attorney and financial advisor. No representation or recommendation is made by
Broker as to the legal sufficiency or tax consequences of this document or the
transaction to which it relates. These are questions for your attorney and
financial advisor.
In any real estate transaction, it is recommended that you consult with a
professional, such as a civil engineer, industrial hygienist or other person
with experience in evaluating the condition of property, including the possible
presence of asbestos, hazardous materials and underground storage tanks.
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ADDENDUM A
THIS ADDENDUM TO PURCHASE CONTRACT ("Addendum") is attached to and constitutes
an integral part of the Purchase Contract between XXXXXXXXX PROPERTIES, INC.
AND/OR NOMINEE, as Purchaser and CONNECTICUT GENERAL EQUITY PARTNERS, as Seller.
The terms of this Addendum shall be incorporated in the Purchase Contract for
all purposes. In the event of a conflict between the provisions of the Purchase
Contract and the provisions of this Addendum, this Addendum shall control.
1. CONVEYANCE OF PROPERTY - The property shall be conveyed to Purchaser at
Closing, with no exception shown on the title policy except as approved by
Purchaser. However, delivery of a title insurance policy fully acceptable to
Purchaser shall be only a condition of Closing and shall not be a covenant of
Seller. Seller shall be under no obligation to clear any encumbrances from the
title (except for monetary liens other than liens for current taxes not yet due)
or to create any encumbrance on, or for the benefit of, the Property. If Seller
does not deliver title in a form fully acceptable to Purchaser, then Purchaser's
sole and exclusive remedy shall be to terminate the Purchase Agreement and have
the Deposit returned. If Purchaser chooses not to terminate the Purchase
Agreement, then Purchaser shall accept such title as Seller delivers without
deduction of the Purchase Price.
2. EXPENSES - Each party shall bear its own legal expenses in connection
with this transaction. Seller shall pay all standard coverage title insurance
costs, and the costs for the Preliminary Title Report.
3. PHYSICAL CONDITION OF THE PROPERTY - Purchaser will acquire the Property
"as is", with no repairs or improvements required of Seller.
4. SELLER CONTINGENCY - This Purchase Contract is contingent upon Seller's
Investment Committee approval. Such approval shall be in writing and furnished
to Escrow Agent within fifteen (15) days after the Purchaser has waived all
their contingencies stated herein in writing to Seller. If Seller's Investment
Committee does not approve of this transaction within the fifteen (15) day
period, this Purchase Contract will be come null and void.
5. TITLE - Title to property shall be simultaneously conveyed to Buyer
and/or its nominee by a recordable Special Warranty Deed subject only to items
specifically approved by Xxxxx and Seller.
6. TAX DEFERRED EXCHANGE - Seller agrees to cooperate with Xxxxx to effect
a tax deferred 1031 exchange, although close of escrow is not contingent upon
this exchange.
7. MILCO LEASE RENEWAL - Seller has negotiated and entered into a lease
renewal with Milco for certain space within the Property. The Milco lease
contains a provision that grants Milco a one time right to terminate the lease
if the landlord is unable to acquire and improve the 20,375 square foot parcel
adjacent to and due north of the premises leased to Milco, which parcel is
currently owned by United Parcel Service (the "Adjacent Parcel"). The landlord
under the Milco lease has until February 1, 1996 to acquire the Adjacent Parcel
and to complete the parking lot and interior improvements, the total cost of
which is currently projected to be $66,000. Milco as tenant has the right to
terminate its lease if the landlord does not acquire the Adjacent Parcel.
Purchaser's obligation to purchase the Property under
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this Contract is not contingent upon Xxxxx's exercising or failing to
exercise such termination right. Purchaser's obligation to purchase the Property
under this Contract is also not contingent upon Seller's entering into a
purchase contract with United Parcel Service for the Adjacent Parcel. Purchaser
further understands that as of the date of this Contract, United Parcel Service
has communicated to Seller its intention not to sell the Adjacent Parcel. In the
event, however, that Xxxxxx does enter into a contract with United Parcel
Service to purchase the Adjacent Parcel, but at the time of closing of this
Contract has not closed the purchase of the Adjacent Parcel, Seller agrees to
assign its rights under the contract for the Adjacent Parcel to Purchaser, and
Purchaser agrees to assume Seller's obligations thereunder and to reimburse
Seller for its costs expended in connection with obligations thereunder and to
reimburse Seller for its costs expended in connection with such contract in an
amount not to exceed $66,000, in addition to payment of the purchase price for
the Property under this Contract. In the event that Seller has closed any such
purchase of the Adjacent Parcel prior to the consummation of this Contract, at
the Closing of this Contract, Purchaser shall reimburse Seller the foregoing
amounts expended in addition to payment of the Purchase Price for the Property
under this Contract and Seller shall convey the Adjacent Parcel to Purchaser.
8. LEASES, LEASE RENEWALS AND CONTRACTS - After the end of the Feasibility
Period and until the close of escrow hereunder, Xxxxxx agrees not to enter into
any new leases, lease renewals or any contracts affecting the property extending
beyond the Closing date without Purchaser's prior written consent, which consent
shall not be unreasonably withheld. Purchaser shall have a period of five (5)
business days after receipt of Seller's request for such approval in which to
approve or disapprove of such lease, renewal or contracts. If Purchaser fails to
respond within such time period, Purchaser shall be deemed to have approved of
such lease, renewal or contracts as submitted by Seller.
9. BUYER'S FEASIBILITY - Within ten (10) business days after the opening of
escrow, Seller will make available for Buyer's inspection the following items if
in Seller's possession or accessible to Seller:
a. Operating statement for the property identifying all income
collected and operating expenses paid for the past 12 months.
Xxxxx agrees and understands that such operating statements
reflect several buildings that were originally owned by Seller but
were recently sold to several investors/users. In addition, Seller
will provide, if available, copies of base year operating expenses
for current tenants.
b. Rent roll for the property.
c. Copies of real and personal property tax bills for the preceding
12 months.
d. Copies of all utility bills for the preceding 12 months.
e. Clean copies of building and site plans and specifications of the
project.
f. Copies of all service contracts.
g. Legible copies of all tenant leases and amendments or
modifications thereof in effect.
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10. OTHER CONTINGENCIES - Within twenty-five (25) days after the opening of
escrow, Seller, at Seller's expense, shall provide to Buyer the following items
for Xxxxx's written approval or disapproval as provided in Paragraph 8 of the
Purchase Contract.
a. A current Phase I Environmental Assessment Report, including a
reliance letter for the benefit of Buyer. Buyer will pay Seller
the additional costs, if any, for the cost of said reliance
letter.
b. A current Pest Control Inspection Report.
c. A current ALTA Survey for the property.
d. A form of estoppel certificates for all leases, to be approved by
Buyer. Seller will use its best efforts to obtain signed estoppel
certificates for no less than fifty-five percent (55%) of the
project.
Initials
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