EXHIBIT 2.1
AGREEMENT OF PURCHASE AND SALE
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[Telegraph Hill Apartments; Albuquerque, New Mexico]
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ARTICLE 1: PROPERTY/PURCHASE PRICE
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1.1 Certain Basic Terms.
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(a) Seller and Notice Address:
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FIRST CAPITAL INSURED REAL ESTATE LIMITED
PARTNERSHIP,
an Illinois limited partnership
c/o Equity Residential Properties Trust
Attn: Xxxx Xxxxxxxx
Two Xxxxx Xxxxxxxxx Xxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxxx 00000-0000
Telephone: 312/000-0000
Facsimile: 312/454-0438
With a copy to: Xxxxxxxxx & Xxxxxxxxxxx, P.C.
Attn: Xxxxxx X. Xxxxxx
Xxx Xxxxx Xxxxxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Telephone: 312/000-0000
Facsimile: 312/454-0335
(b) Purchaser and Notice Address:
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SECURITY CAPITAL PACIFIC TRUST, a Maryland
real estate investment trust
Attn: Xxxx X. Xxxxxxx
000 Xxxxxxx Xxxxxx
Xxxxx Xx, Xxx Xxxxxx 00000
Telephone: 505/000-0000
Facsimile: 505/820-0643
With a copy to: Xxxxx, Xxxxx & Xxxxx
Attn: Xxxxxx Xxxxxx
000 Xxxx Xxxxxx Xxxxxx
Xxxxx Xx, Xxx Xxxxxx 00000
Telephone: 505/000-0000
Facsimile: 505/820-7334
(c) Date of this Agreement: The latest date of execution by the Seller
---------------------- or the Purchaser, as indicated on the
signature page.
(d) Purchase Price: $8,150,000.
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(e) Xxxxxxx Money: $100,000, including interest thereon.
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(f) Due Diligence Period: The period ending 45 days after the Date of
-------------------- this Agreement.
(g) Closing Date: The date which is 15 days after the
------------ expiration of the Due Diligence Period.
(h) Title Company: Chicago Title Insurance Company
------------- Attn: Xxxxx Xxxxxx
000 Xxxxx Xxxxxx Xxxxxx, Xxxxx 000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Telephone: 213/000-0000
Facsimile: 213/891-0834
(i) Escrow Agent: Rio Grande Title
------------ Attn: Xxxxx Xxxxxxx
0000 Xxxxxx Xxxxxx Xxxx XX
Xxxxxxxxxxx, Xxx Xxxxxx 00000
Telephone: 505/000-0000
Facsimile: 505/888-0990
(j) Broker: CB Commercial Realty, Inc.
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1.2 Property. Subject to the terms and conditions of this Agreement of
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Purchase and Sale (the "Agreement"), Seller agrees to sell to Purchaser, and
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Purchaser agrees to purchase from Seller, all of Seller's right, title and
interest in and to the following property (collectively, the "Property"):
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(a) The "Real Property," being the land described in Exhibit A attached
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hereto, together with (i) all improvements located thereon ("Improvements"),
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(ii) without warranty, all right, title and interest of Seller in and to all and
singular rights, benefits, privileges, easements, tenements, hereditaments, and
appurtenances thereon or in anywise appertaining to such real property, and
(iii) without warranty, all right, title, and interest of Seller in and to all
strips and gores and any land lying in the bed of any street, road or alley,
open or proposed, adjoining such real property.
(b) The landlord's interest in the "Leases," being all leases of the
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Improvements, including leases which may be made by Seller after the date hereof
and prior to Closing as permitted by this Agreement.
(c) The "Tangible Personal Property," being, without warranty, all
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right, title and interest of Seller in and to all equipment, machinery,
furniture, furnishings, supplies and other tangible personal property owned by
Seller, and Seller's interest in any such property leased by Seller, now or
hereafter located on and used in connection with the operation, ownership or
management of the Real Property; excluding, however, any computer equipment
located at the Property.
(d) The "Intangible Personal Property," being, without warranty, all
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right, title and interest of Seller in and to all intangible personal property
related to the Real Property and the Improvements, all to the extent assignable,
including, without limitation, Seller's rights and interests in the name of the
Real Property, the plans and specifications and other architectural and
engineering drawings for the Improvements, warranties, contract rights related
to the construction, operation, ownership or management of the Real Property
(but only to the extent Seller's obligations thereunder are expressly assumed by
Purchaser pursuant to this Agreement), governmental permits, approvals and
licenses (to the extent assignable), tenant lists and correspondence, all
records and promotional materials relating to the Property, and telephone
exchange numbers (to the extent assignable). Seller does not hereby convey rent
receivables that have accrued prior to the Closing hereunder.
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1.3 Xxxxxxx Money. Within 5 days after the execution of this Agreement,
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Purchaser shall deposit the Xxxxxxx Money with the Escrow Agent. The Escrow
Agent shall pay the Xxxxxxx Money to Seller at and upon the Closing, or
otherwise, to the party entitled to receive the Xxxxxxx Money in accordance with
this Agreement. The Xxxxxxx Money shall be held and disbursed by the Escrow
Agent pursuant to that Xxxxxxx Money Escrow Agreement which the parties have
executed simultaneously with this Agreement. If all of the conditions to
Purchaser's obligation to purchase the Property have been satisfied or waived in
writing by Purchaser and if Purchaser should fail to consummate this transaction
for any reason other than Seller's default, failure of a condition to
Purchaser's obligation to close, or the exercise by Purchaser of an express
right of termination granted herein, Seller's sole remedy in such event shall be
to terminate this Agreement and to retain the Xxxxxxx Money as liquidated
damages, Seller waiving all other rights or remedies in the event of such
default by Purchaser (other than those rights and obligations that are intended
to survive the termination of this Agreement). The parties acknowledge that
Seller's actual damages in the event of a default by Purchaser under this
Agreement will be difficult to ascertain, and that such liquidated damages
represent the parties' best estimate of such damages. If Seller fails to close
as required by the terms of this Agreement, and such failure is not the result
of a default by Purchaser under this Agreement, then Purchaser may elect either
(i) to terminate this Agreement and receive a refund of the Xxxxxxx Money, in
which event this Agreement shall be null and void and neither Seller nor
Purchaser shall have any further rights or obligations under this Agreement
(other than those rights and obligations that are intended to survive the
termination of this Agreement), or (ii) upon notice to Seller not less than ten
(10) days after Purchaser becomes aware of such failure, and provided an action
is filed within thirty (30) days after the scheduled date of the Closing,
Purchaser may seek specific performance of this Agreement or damages in the
amount of Purchaser's documented out-of-pocket costs in pursuing the acquisition
of the Property, provided that Purchaser may not recover damages in excess of
$100,000. Purchaser's failure to proceed in accordance with clause (ii) above
shall constitute its election to proceed under clause (i) above. In addition,
the Xxxxxxx Money shall promptly be returned to Purchaser if Purchaser elects to
terminate this Agreement pursuant to an express right herein granted or failure
of a condition.
ARTICLE 2: INSPECTION
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2.1 Seller's Delivery of Specified Documents. To the extent such items
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are in Seller's possession, Seller shall provide to Purchaser the following (the
"Property Information") concurrent with the date of this Agreement (unless
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otherwise indicated):
(a) Rent Roll and Apartment Mix List. A current rent roll and
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delinquency report ("Rent Roll") for the Property in Seller's standard format;
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(b) Financial Information. Operating statements of the Property for the
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36 months preceding this Agreement ("Operating Statements") and financial
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statements (balance sheet, income, expenses and capital improvements) for the
Property for the two years preceding this Agreement and year-to-date for the
current year;
(c) Tax Statements. Copies or a summary of ad valorem tax statements
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relating to the Property for the current year or other current tax period (if
available) and for the 24 months preceding the Agreement;
(d) Leases. Seller's standard lease form;
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(e) Service Contracts. A list, together with copies, of all service,
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supply, equipment rental, and other similar contracts related to the operation
of the Property ("Service Contracts");
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(f) Maintenance Records. All available maintenance work orders for the
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12 months preceding this Agreement (such information will be made available to
Purchaser on-site);
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(g) List of Personal Property and Capital Improvements. A list of all
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tangible personal property, and a list of all capital improvements known to the
Seller and performed on the Property within the 24 months preceding this
Agreement;
(h) Studies and Reports. Any studies, audits, tests or reports in
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Seller's possession related to the environmental and/or soils condition of the
Property;
(i) Plans and Specifications. All construction plans and specifications
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(including "as-builts") in Seller's possession relating to the original
development of the Property and any major capital repairs or tenant improvements
(such information will be made available to Purchaser on-site);
(j) Existing Title and Survey. Copy of Seller's existing title insurance
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policy and any existing ALTA "as-built" survey of the Property;
(k) Permits and Licenses. Any governmental licenses, permits and
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approvals relating to the Property, including without limitation subdivision
reports, development permits and certificates of occupancy (such information
will be made available to Purchaser on-site); and
(l) Governmental Notices. Any written notices, reports, citations,
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correspondence or memoranda received by Seller within the twenty-four (24)
months preceding this Agreement from any government agency, unit, division or
department (federal, state, county or municipal) concerning any problem at the
Property and not covered in any of the categories above (such information will
be made available to Purchaser on-site).
Upon delivery of the Property Information concurrent with the Date of
this Agreement, Seller shall deliver to Purchaser a written notice (the
"Property Information Notice") certifying that all such deliveries have been
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completed together with an itemization of the matters delivered or made
available to Purchaser.
Seller shall have an ongoing obligation during the pendency of this
Agreement to provide Purchaser with any document described above and coming into
Seller's possession or produced by Seller after the initial delivery of the
Property Information. Seller shall provide Purchaser with an updated Rent Roll
and Operating Statements, dated as of the last day of the month, for each month
during the pendency of this Agreement. Seller shall provide reasonable access to
Purchaser to the management offices located on the Property, and all information
contained therein.
2.2 Due Diligence. Purchaser shall have through the last day of the Due
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Diligence Period in which to examine, inspect, and investigate the Property and,
in Purchaser's sole and absolute judgment and discretion, to determine whether
the Property is acceptable to Purchaser and to obtain all necessary internal
approvals. Notwithstanding anything to the contrary in this Agreement, Purchaser
may terminate this Agreement by giving written notice of termination to Seller
on or before the last day of the Due Diligence Period. If Purchaser does not
give the notice of termination, this Agreement shall continue in full force and
effect. If this Agreement terminates pursuant to this Paragraph 2.2, the Xxxxxxx
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Money shall be refunded to Purchaser immediately upon request, and all further
rights and obligations of the parties under this Agreement shall terminate,
except that Purchaser's obligations (and Seller's obligations, where applicable)
under Paragraphs 2.2, 6.7, 8.14 and 8.17 shall survive such termination.
-------------- --- ---- ----
Purchaser shall have reasonable access to the Property, upon 48 hours prior
notice to Seller, for the purpose of conducting surveys, architectural,
engineering, geotechnical and environmental inspections and tests (including,
with Seller's prior written approval, intrusive inspection and sampling), and
any other inspections, studies, or tests reasonably required by Purchaser.
Purchaser shall keep the Property free and clear of any liens and will
indemnify, defend, and hold Seller harmless from all claims and liabilities
asserted against Seller as a result of any such entry by Purchaser, its agents,
employees or representatives. Seller shall have the right to be present at any
or all inspections. If any inspection or test disturbs the Property, Purchaser
will promptly restore the Property to the same
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condition as existed prior to any such inspection or test. Purchaser and its
agents, employees, and representatives shall have a continuing right of
reasonable access to the Property during the pendency of this Agreement, upon 48
hours prior notice to Seller, for the purpose of examining and making copies of
all books and records and other materials relating to the Property in Seller's
or its property manager's possession and Purchaser shall have the right to
conduct a reasonable "walk-through" of the Property prior to the Closing upon
appropriate notice to tenants as permitted under the Leases. In the course of
its investigations, Purchaser may make inquiries to third parties, including,
without limitation, lenders, contractors, property managers, parties to Service
Contracts and municipal, local and other government officials and
representatives, and Seller consents to such inquiries; provided, however, that
Purchaser shall provide 48-hour advance notice to Seller of any such inquiries
and allow a representative of Seller the opportunity to participate in any such
inquiries. The obligations of the Purchaser under this paragraph shall survive
the termination of the Agreement.
2.3 Service Contracts. During the Due Diligence Period, the parties
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will endeavor to agree as to which Service Contracts Purchaser will assume and
which Service Contracts will be terminated by Seller at Closing. Seller shall
have no obligation to terminate, and Purchaser shall assume at Closing, any
Service Contract(s) which Purchaser has not identified as a Service Contract to
be terminated as of the Closing Date in a written notice delivered to Seller no
later than 30 days prior to the Closing. Seller shall terminate at Closing
(subject to any 30-day notice requirements), and Purchaser shall not assume, any
property management agreement affecting the Property and Seller shall also
simultaneously either (a) terminate any existing lease (whether written, oral or
otherwise) on the Property between Seller and any employee of the existing
property management firm under which rent is waived or is discounted and assure
that the subject apartment is vacated effective as of the Closing Date, or (b)
modify any such lease to provide for a then-current market rent. Purchaser may
contact, interview, and hire any on-site property management personnel,
including those employed by Seller.
ARTICLE 3: TITLE AND SURVEY REVIEW
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3.1 Delivery of Title Commitment and Survey. During the Due Diligence
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Period, Purchaser shall cause to be prepared: (i) a current, effective
commitment for title insurance (the "Title Commitment") issued by the Title
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Company, in the amount of the Purchase Price with Purchaser as the proposed
insured, and accompanied by true, complete, and legible copies of all documents
referred to in the Title Commitment; and (ii) a current ALTA-ACSM Urban survey
of the Property (the "Survey"), including a certification addressed to Purchaser
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in the form attached hereto as Exhibit B. Seller shall deliver to Purchaser
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within 15 days after the execution of this Agreement copies of Uniform
Commercial Code searches in the name of Seller and the Property issued by the
Title Company or a search company reasonably acceptable to Purchaser ("UCC
---
Searches").
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3.2 Title Review and Cure. During the Due Diligence Period, Purchaser
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shall review title to the Property as disclosed by the Title Commitment and the
Survey. Seller will reasonably cooperate with Purchaser in curing any objections
Purchaser may have to title to the Property, provided Seller shall have no
obligation to cure any title exceptions disclosed in Seller's title insurance
policy relating to the Property (a copy of which is attached hereto as
Exhibit G), nor any obligation to cure any other title objections except liens
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of an ascertainable amount created by, under or through Seller, which liens
Seller shall cause to be released (or, with respect to mechanics liens, released
or insured over) at the Closing. Except for matters permitted under Paragraphs
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4.1, Seller further agrees to remove any exceptions or encumbrances to title
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which are created by, under or through Seller after the date of this Agreement
without Purchaser's consent. Purchaser may terminate this Agreement and receive
a refund of the Xxxxxxx Money if the Title Company revises the Title Commitment
after the expiration of the Due Diligence Period to add or modify exceptions, if
such additions or modifications were first placed of record after the issuance
of the original Title Commitment or any update of such Commitment delivered to
Purchaser during the Due Diligence Period and are not acceptable to Purchaser
and are not removed by the Closing Date. The term "Permitted Exceptions" shall
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mean: the specific exceptions (exceptions that are not part of the promulgated
title insurance form) in the Title Commitment that the Title Company has not
agreed to insure over or remove from the Title Commitment as of the end of the
Due Diligence Period and that Seller is not required to remove as provided
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above; items shown on the Survey, which have not been removed as of the end of
the Due Diligence Period; real estate taxes not yet due and payable; and tenants
in possession as tenants only under the Leases without any option to purchase or
acquire an interest in the Property (other than a reasonable and customary
tenant right to extend its leasehold interest).
3.3 Delivery of Title Policy at Closing. As a condition to Purchaser's
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obligation to close, the Escrow Agent shall deliver to Purchaser at Closing an
ALTA Form B (or other form required by state law) Owner's Policy of Title
Insurance (the "Title Policy"), with extended coverage (i.e., with ALTA General
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Exceptions 1 through 5 deleted, or with corresponding deletions if the Property
is located in a non-ALTA state), issued by the Title Company as of the date and
time of the recording of the Deed, in the amount of the Purchase Price,
containing Purchaser's Endorsements (as defined below), insuring Purchaser as
owner of good, marketable and indefeasible fee simple title to the Property, and
subject only to the Permitted Exceptions. "Purchaser's Endorsements" shall mean,
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such endorsements as Purchaser may request and the Title Company approve prior
to the expiration of the Due Diligence Period, and which are itemized in a
letter signed by both the Title Company and Purchaser and delivered to Seller
prior to the expiration of the Due Diligence Period or are evidenced in a
revised commitment or pro forma title policy issued by the Title Company and
delivered to Seller prior to the expiration of the Due Diligence Period
accompanied by written confirmation that Purchaser is satisfied with same. To
the extent required by the Title Company as a condition or requirement to
issuance of the Title Policy, Seller shall execute at Closing and deliver to the
Title Company an affidavit in a form reasonably acceptable to Seller and the
Title Company. The Title Policy may be delivered after the Closing if at the
Closing the Title Company issues a currently effective, duly-executed
"marked-up" Title Commitment and irrevocably commits in writing to issue the
Title Policy in the form of the "marked-up" Title Commitment promptly after the
Closing Date.
3.4 Title and Survey Costs. The cost of the Survey, including any
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revisions necessary to make the Survey conform to the requirements of this
Agreement, shall be paid by Purchaser whether or not the Closing contemplated
hereunder occurs. The premium for the basic Title Policy shall be paid by
Seller. The premium for extended coverage and the Purchaser's Endorsements shall
be paid by Purchaser. The cost of the UCC Searches shall be paid by Seller.
ARTICLE 4: OPERATIONS AND RISK OF LOSS
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4.1 Ongoing Operations. During the pendency of this Agreement:
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(a) Performance under Leases and Service Contracts. Seller will perform
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its material obligations under the Leases and Service Contracts and other
agreements that may affect the Property.
(b) New Contracts. Seller will not enter into any contract that will be
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an obligation affecting the Property subsequent to the Closing, except contracts
entered into in the ordinary course of business that are terminable without
cause on 30-days' notice.
(c) Listings and Other Offers. Seller will not list the Property with
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any broker or otherwise solicit or make or accept any offers to sell the
Property or enter into any contracts or agreements (whether binding or not)
regarding any disposition of the Property.
(d) Maintenance of Improvements and Removal of Personal Property.
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Seller shall continue to operate the Property consistent with its ordinary
course of business existing during the year prior to the Date of this Agreement.
Prior to and as of the Closing Date, Seller shall, subject to Paragraph 4.2,
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cause all units that have been vacated for 5 days or more prior to the Closing
Date to be made rent-ready and available for occupancy. Seller will not remove
any Personal Property except as may be required for necessary repair or
replacement, and replacement shall be of equal quality and quantity as existed
as of the time of its removal. Through the Closing
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Date, Seller shall maintain or cause to be maintained its existing insurance
covering the Property, at Seller's sole cost and expense.
(e) Leasing Arrangements. Without Purchaser's prior written consent in
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each instance, Seller will not amend or terminate any Lease unless in the
ordinary course of business. From and after the Date of this Agreement, and
subject to the provisions of this Paragraph 4.1(e), Seller shall continue its
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level of leasing activities at the Property in conformity with its businesses
practices existing prior to the Date of this Agreement, and in an effort to
maintain a vacancy rate of no higher than 10%. All Leases entered into during
this Agreement shall be on Seller's standard lease form delivered to Purchaser,
shall be for terms of no less than 6 months and no greater than 12 months at
current market rentals as set forth in Exhibit C, and shall not include any
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concessions or discounts. The number of apartments leased on a month-to-month
basis shall not exceed 10% of the total number of units comprising the Property
and satisfaction of the foregoing requirement shall be a condition precedent to
Purchaser's obligation to close hereunder.
4.2 Damage. In the event of any material damage to or destruction of the
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Property or any portion thereof, Purchaser may, at its option, by notice to
Seller given within 10 days after Seller notifies Purchaser of such damage or
destruction (and if necessary the Closing Date shall be extended to give
Purchaser the full 10-day period to make such election): (i) terminate this
Agreement and the Xxxxxxx Money shall be immediately returned to Purchaser, or
(ii) proceed under this Agreement, receive any insurance proceeds (including any
rent loss insurance applicable to any period on and after the Closing Date) due
Seller as a result of such damage or destruction and assume responsibility for
such repair, and Purchaser shall receive a credit at Closing for any deductible
or coinsured amount under said insurance policies. If Purchaser elects (ii)
above, Purchaser may extend the Closing Date for up to an additional 10 day
period in which to obtain insurance settlement agreements with Seller's
insurers, and Seller will cooperate with Purchaser in obtaining the insurance
proceeds and such agreements from Seller's insurers. If the Property is not
materially damaged, then provided that insurance proceeds are available to cover
the damage to the Property, Purchaser shall not have the right to terminate this
Agreement, but shall proceed under, and shall have all rights provided for in,
clause (ii) above. If, however, the damage is not material but is not fully
covered by insurance, then Purchaser shall have the right to proceed under
either clause (i) or clause (ii) above. "Material damage" and "Materially
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damaged" means damage reasonably exceeding $250,000 to repair or which, in
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Purchaser's reasonable estimation, will take longer than 90 days to repair.
4.3 Condemnation. In the event any proceedings in eminent domain are
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contemplated, threatened or instituted by any body having the power of eminent
domain with respect to the Property or any portion thereof, Purchaser may, at
its option, by notice to Seller given within 20 business days after Seller
notifies Purchaser of such proceedings (and if necessary the Closing Date shall
be extended to give Purchaser the full 20 business day period to make such
election): (i) terminate this Agreement and the Xxxxxxx Money shall be
immediately returned to Purchaser, or (ii) proceed under this Agreement, in
which event Seller shall, at the Closing, assign to Purchaser its entire right,
title and interest in and to any condemnation award, and Purchaser shall have
the sole right during the pendency of this Agreement to participate in any
negotiation or other dealings with the condemning authority in respect of such
matter.
ARTICLE 5: CLOSING
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5.1 Closing. The consummation of the transaction contemplated herein
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("Closing") shall occur on the Closing Date at the offices of the Escrow Agent.
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5.2 Conditions to the Parties' Obligations to Close. In addition to all
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other conditions set forth herein, the obligation of Seller, on the one hand,
and Purchaser, on the other hand, to consummate the transactions contemplated
hereunder shall be contingent upon the following:
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(a) The other party's representations and warranties contained herein
shall, in all material respects, be true and correct as of the date of this
Agreement and the Closing Date, subject to permitted Seller actions under
Paragraphs 4.1. For purposes of this clause (a) only, a representation that is
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limited to a party's knowledge or notice shall be false if the factual matter
that is the subject of the representation is false notwithstanding any lack of
knowledge or notice to the party making the representation;
(b) As of the Closing Date, the other party shall, in all material
respects, have performed its obligations hereunder and all deliveries to be made
at Closing have been tendered;
(c) There shall exist no pending or threatened action, suit or
proceeding with respect to the other party before or by any court or
administrative agency which seeks to restrain or prohibit, or to obtain damages
or a discovery order with respect to, this Agreement, the Property, or the
consummation of the transactions contemplated hereby;
The following conditions are conditions with respect to Purchaser's
obligation to close and are for Purchaser's sole benefit:
(d) The physical condition of the Property shall be substantially the
same on the day of Closing as on the date of the expiration of the Due Diligence
Period, reasonable wear and tear and loss by casualty excepted (subject to the
provisions of Paragraphs 4.2 and 4.3);
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(e) As of the day of Closing, there shall exist no pending or threatened
actions, suits, arbitrations, claims, attachments, proceedings, assignments for
the benefit of creditors, insolvency, bankruptcy, reorganization or other
proceedings, against Seller or the Property that would, in Purchaser's
reasonable discretion, materially and adversely affect the operation or value of
the Property, or the ability of Purchaser to operate the Property in the manner
in which it is currently being operated, or the ability of Seller to perform its
obligations under this Agreement; and no proceedings shall be pending or
threatened which could or would cause the redesignation or other modification of
the zoning classification of, or of any building or environmental code
requirements applicable to, any of the Property or any property adjacent to the
Property.
So long as a party is not in default hereunder, if any condition to such
party's obligation to proceed with the Closing hereunder has not been satisfied
as of the Closing Date, such party may, in its sole discretion, terminate this
Agreement by delivering written notice to the other party on or before the
Closing Date, or elect to close notwithstanding the non-satisfaction of such
condition, in which event such party shall be deemed to have waived any such
condition. In the event such party elects to close, notwithstanding the
nonsatisfaction of such condition, there shall be no liability on the part of
any other party hereto for breaches of representations and warranties of which
the party electing to close had actual knowledge at the Closing. Notwithstanding
the foregoing, the failure of a condition due to the breach of a party shall not
relieve such breaching party from any liability it would otherwise have
hereunder.
5.3 Seller's Deliveries in Escrow. On or prior to the Closing Date,
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Seller shall deliver in escrow to the Escrow Agent the following:
(a) Deed. A special warranty deed in form provided for under the law of
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the state where the Property is located, or otherwise in conformity with the
custom in such jurisdiction and mutually and reasonably satisfactory to the
parties, executed and acknowledged by Seller, conveying to Purchaser fee simple
title to the Real Property, subject only to the Permitted Exceptions (the
"Deed");
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(b) Xxxx of Sale and Assignment of Leases and Contracts. A Xxxx of Sale
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and Assignment of Leases and Contracts in the form of Exhibit D attached hereto
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(the "Assignment"), executed and acknowledged by Seller;
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(c) Title Company Forms. Such standard forms as the Title Company may
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reasonably require to be executed by the parties and as may be reasonably
satisfactory to the parties;
(d) FIRPTA. A Foreign Investment in Real Property Tax Act affidavit
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executed by Seller. If Seller fails to provide the necessary affidavit and/or
documentation of exemption on the Closing Date, Purchaser may proceed with
withholding provisions as provided by law;
(e) Certificate of Representations and Warranties. A certificate,
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executed by Seller, reaffirming and updating to the Closing Date the
representations and warranties given by Seller under Article Seven, which
certificate will include an updated Rent Roll, list of Service Contracts, and
Operating Statements;
(f) Authority. Evidence of the existence, organization and authority of
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Seller and of the authority of the persons executing documents on behalf of
Seller reasonably satisfactory to the Escrow Agent and the Title Company;
(g) Additional Documents. Any additional documents that Purchaser,
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Escrow Agent or the Title Company may reasonably require for the proper
consummation of the transaction provided for in this Agreement.
5.4 Purchaser's Deliveries in Escrow. On or prior to the Closing Date,
--------------------------------
Purchaser shall deliver in escrow to the Escrow Agent the following:
(a) Purchase Price. The Purchase Price, less the Xxxxxxx Money that is
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applied to the Purchase Price, and plus or minus applicable prorations, such
final amount to be deposited by Purchaser with the Escrow Agent in immediate,
same-day federal funds wired for credit into the Escrow Agent's escrow account;
(b) Xxxx of Sale and Assignment of Leases and Contracts. The Assignment,
---------------------------------------------------
executed by Purchaser;
(c) Title Company Forms. Such standard forms as the Title Company may
-------------------
reasonably require to be executed by the parties and as may be reasonably
satisfactory to the parties;
(d) Additional Documents. Any additional documents that Seller, Escrow
--------------------
Agent or the Title Company may reasonably require for the proper consummation of
the transaction provided for in this Agreement.
5.5 Closing Statements/Escrow Fees. Seller and Purchaser shall deposit
------------------------------
with the Escrow Agent executed closing statements consistent with this
Agreement. The Escrow Agent's escrow fee shall be divided equally between and
paid by Seller and Purchaser.
5.6 Title Policy. The Escrow Agent shall deliver to Purchaser the Title
------------
Policy in accordance with the provisions of Paragraph 3.3.
-------------
5.7 Possession. Seller shall deliver possession of the Property to
----------
Purchaser at the Closing subject only to the Permitted Exceptions.
5.8 Delivery of Books and Records. At Closing, Seller shall deliver to
-----------------------------
Purchaser, by leaving such materials at the Property management office located
on the Property, the following: the original Leases; copies or originals of all
books and records of account, contracts, copies of correspondence with tenants
and suppliers, receipts for deposits, unpaid bills and other papers or documents
which pertain to the Property; all advertising materials, booklets, keys and
other items, if any, used in the operation of the Property; and, if in Seller's
possession or control, the original "as-built" plans and specifications and all
other available plans and specifications.
-9-
5.9 Notice to Tenants. Purchaser shall deliver to each tenant
-----------------
immediately after the Closing a notice regarding the sale in substantially the
form Exhibit E attached hereto, or such other form as may be required by
---------
applicable state law.
5.10 Close of Escrow. Upon satisfaction or completion of the foregoing
---------------
conditions and deliveries, the parties shall direct the Escrow Agent to
immediately record and deliver the documents described above to the appropriate
parties and make disbursements according to the closing statements executed by
Seller and Purchaser.
ARTICLE 6: PRORATIONS
---------------------
6.1 Prorations. The items in this Paragraph 6.1 shall be prorated
---------- -------------
between Seller and Purchaser as of the close of the day immediately preceding
the Closing Date:
(a) Taxes and Assessments. General real estate taxes and assessments
---------------------
imposed by governmental authority ("Taxes") and any assessments by private
-----
covenant constituting a lien or charge on the Property for the then-current
calendar year or other current tax period not yet due and payable. If the
Closing occurs prior to the receipt by Seller of the tax xxxx for the calendar
year or other applicable tax period in which the Closing occurs, Purchaser and
Seller shall prorate Taxes for such calendar year or other applicable tax period
based upon the most recent ascertainable assessed values and tax rates. If the
Property has not been assessed on a completed basis but will be for the current
year or other applicable tax period, the parties shall complete the proration
based upon an assessed value equal to the Purchase Price.
(b) Collected Rent. All collected rent and other income (and any
--------------
applicable state or local tax on rent) under Leases in effect on the Closing
Date. Seller shall be charged with any rentals (including advance or prepaid
rentals) under Leases or other contracts (such as laundry or concessionaire
contracts) which are collected by Seller before Closing but applicable to any
period of time after Closing. As the term of the laundry lease applicable to the
Property has expired and such lease is now continuing on a month-to-month basis,
the parties have agreed that there shall not be any proration of the initial
payment made by Seller under the laundry lease at the outset of the term of such
lease. Uncollected rent and other income shall not be prorated. If Purchaser
collects pre-Closing delinquencies after Closing, Purchaser shall apply such
rent to the obligations owing Purchaser for its period of ownership and to costs
of collection, remitting the balance, if any, to Seller; provided if a tenant
expressly designates in writing that a payment tendered by it is to apply to a
specified period, Purchaser shall apply such payment as directed by the tenant,
with any amount due to Seller on account of such designation being promptly
forwarded by Purchaser to Seller. Purchaser shall not be obligated to engage a
collection agency or take legal action to collect any delinquencies. Subject to
the limitations herein set forth, Seller shall have the right to seek, through
lawful means, collection of any rents delinquent for any period prior to the
Closing. If Seller desires to seek recovery of any such delinquencies from any
tenant who continues in occupancy at the Property, Seller shall, in each
instance, provide Purchaser with at least 10 business days' prior written notice
identifying the tenant(s) from whom it will be pursuing delinquencies, any
collection agency that will or has been engaged by Seller and whether and when
Seller intends to institute legal proceedings against such tenant. Seller also
agrees that if Seller initiates any legal proceeding against any such tenant,
Seller shall not have any right to seek to terminate such tenant's lease or
dispossess such tenant from its premises at the Property. The foregoing
limitations on Seller's ability to recover delinquencies shall survive the
Closing hereunder but shall not apply to nor limit Seller's right to seek
recovery of delinquencies due from any tenants who have vacated their respective
premises before the Closing Date and whose Leases are not assigned to Purchaser.
(c) Utilities. Utilities, including water, sewer, electric, and gas,
---------
based upon the last reading of meters prior to the Closing. Seller shall
endeavor to obtain meter readings on the day before the Closing Date, and if
such readings are obtained, there shall be no proration of such items. Seller
shall pay at Closing the bills therefor for the period to the day preceding the
Closing, and Purchaser shall pay the bills therefor for the period subsequent
thereto. If the utility company will not issue separate bills, Purchaser will
receive a credit against the Purchase
-10-
Price for Seller's portion and will pay the entire xxxx prior to delinquency
after Closing. If Seller has paid any utilities in advance, then Purchaser shall
be charged its portion of such payment at Closing.
(d) Leasing Commissions. On or before the Closing Date, Seller shall pay
-------------------
in full all leasing commissions due to leasing or other agents for each Lease
entered into prior to the Closing Date.
(e) Fees and Charges under Service Contracts. Fees and charges under
----------------------------------------
such of the Service Contracts as are being assigned to and assumed by Purchaser
at the Closing, on the basis of the periods to which such Service Contracts
relate.
(f) Prepaid Fees for Licenses and Permits. Fees prepaid by Seller under
-------------------------------------
any licenses or permits relating to the Property, for periods occurring after
the Closing Date.
6.2 Final Adjustment After Closing. In the event that final bills are
------------------------------
not available or cannot be issued prior to Closing for any item being prorated
under Paragraph 6.1, then Purchaser and Seller agree to allocate such items on a
-------------
fair and equitable basis as soon as such bills are available, final adjustment
to be made as soon as reasonably possible after the Closing. Payments in
connection with the final adjustment shall be due within 30 days of written
notice.
6.3 Tenant Deposits. All tenant security deposits (and interest thereon
---------------
if required by law or contract to be earned thereon) and other tenant deposits
and prepaid fees, including without limitation, cleaning or pet deposits and
fees, shall be transferred or credited to Purchaser at Closing. As of the
Closing, Purchaser shall assume Seller's obligations related to such deposits
and fees, but only to the extent they are properly credited and transferred to
Purchaser.
6.4 Utility Deposits. Seller shall receive a credit for the amount of
----------------
deposits, if any, with utility companies that are transferable and that are
assigned to Purchaser at the Closing. If Seller may not transfer or assign such
deposits, then Purchaser shall pay to an applicable utility company an amount at
Closing necessary to replace the amount of Seller's deposits.
6.5 [Intentionally deleted.]
------------------------
6.6 Wages. Seller shall pay the wages, and the employment taxes and
-----
fringe benefits applicable thereto, payable to employees of Seller as of their
discharge on the Closing Date.
6.7 Commissions. Seller and Purchaser represent and warrant each to the
-----------
other that they have not dealt with any real estate broker, sales person or
finder in connection with this transaction other than Broker. If this
transaction is closed, Seller shall pay Broker in accordance with their separate
agreement. Broker is an independent contractor and is not authorized to make any
agreement or representation on behalf of either party. Except as expressly set
forth above, in the event of any claim for broker's or finder's fees or
commissions in connection with the negotiation, execution or consummation of
this Agreement or the transactions contemplated hereby, each party shall
indemnify and hold harmless the other party from and against any such claim
based upon any statement, representation or agreement of such party. The
obligations under this Paragraph 6.7 shall survive the Closing.
-------------
ARTICLE 7: REPRESENTATIONS AND WARRANTIES
-----------------------------------------
7.1 Seller's Representations and Warranties. Any references in this
---------------------------------------
Paragraph 7.1 to Seller's knowledge shall mean the knowledge of Xxxx Xxxxxxxx,
-------------
Xxx Xxxxxxxx, and Xxxxxx Xxxxxxx. Seller represents and warrants to Purchaser
that:
-11-
(a) Organization and Authority. Seller has been duly organized, is
--------------------------
validly existing, and is in good standing as an Illinois limited partnership.
Seller is in good standing and is qualified to do business in the state where
the Property is located. Seller has or will have at Closing the full right and
authority to consummate or cause to be consummated the transactions contemplated
hereby.
(b) Conflicts and Pending Actions or Proceedings. There is no agreement
--------------------------------------------
to which Seller is a party or, to Seller's knowledge, binding on Seller which is
in conflict with this Agreement. There is no action or proceeding pending or, to
Seller's knowledge, threatened against Seller or relating to the Property,
including, without limitation, any condemnation proceedings or actions under the
Fair Housing Act, which challenges or impairs Seller's ability to execute or
perform its obligations under this Agreement.
(c) [Intentionally deleted.]
------------------------
(d) Rent Roll. All information set forth in any Rent Roll delivered to
---------
Purchaser shall be true and correct in all material respects as of its date.
Except as disclosed in writing in the Property Information, there are no leasing
or other commissions due, nor will any become due, in connection with any Lease,
and no understanding or agreement with any party exists as to payment of any
leasing commissions or fees regarding future leases or as to the procuring of
tenants. To Seller's knowledge, except as disclosed in the Property Information,
no tenants have asserted any defenses or offsets to rent accruing after the
Closing Date. Seller has not received any notice of any default or breach on the
part of the landlord under any Lease, nor, to Seller's knowledge, does there
exist any such default or breach on the part of the landlord.
(e) Service Contracts. The list of Service Contracts to be delivered to
-----------------
Purchaser pursuant to this Agreement will be correct and complete in all
material respects as of the date of its delivery. Seller has neither sent notice
that any contractor is in default nor received notice that Seller is in default
under any Service Contract, which default has not or will not be cured prior to
Closing.
(f) Operating Statements. The Operating Statements to be delivered to
--------------------
Purchaser pursuant to this Agreement will show all items of income and expense
(operating and capital) incurred in connection with Seller's ownership,
operation, and management of the Property for the periods indicated and will be
true, correct, and complete in all material respects.
(g) Notice of Violations or Defects. Seller has received no written
-------------------------------
notice: from any governmental entity that the Property or the use thereof
violates any governmental law or regulation or any covenants or restrictions
encumbering the Property; of any material physical defect in the Improvements;
or from any insurance company or underwriter of any defect that would materially
adversely affect the insurability of the Property or cause an increase in
insurance premiums.
(h) Environmental. Seller has received no written notice from any
-------------
governmental entity of any violation of Environmental Laws related to the
Property or the presence or release of Hazardous Materials on or from the
Property except as disclosed in the Property Information. The term
"Environmental Laws" includes without limitation the Resource Conservation and
------------------
Recovery Act and the Comprehensive Environmental Response, Compensation and
Liability Act and other federal laws governing the environment as in effect on
the date of this Agreement together with their implementing regulations and
guidelines as of the date of this Agreement, and all state, regional, county,
municipal and other local laws, regulations and ordinances that are equivalent
or similar to the federal laws recited above or that purport to regulate
Hazardous Materials. The term "Hazardous Materials" includes petroleum,
-------------------
including crude oil or any fraction thereof, natural gas, natural gas liquids,
liquified natural gas, or synthetic gas usable for fuel (or mixtures of natural
gas or such synthetic gas), and any substance, material waste, pollutant or
contaminant listed or defined as hazardous or toxic under any Environmental Law.
-12-
(i) Fair Housing Act. Seller has not received written notice of any
----------------
pending actions in connection with the Fair Housing Act (42 U.S.C. (S)(S) 3601
et seq., as amended) against Seller, its agents, or employees or with respect to
-- ---
the Property.
(j) ERISA. Seller does not participate in, nor has it withdrawn from a
-----
multi-employer plan subject to Title IV of ERISA.
7.2 Purchaser's Representations and Warranties. As a material inducement
------------------------------------------
to Seller to execute this Agreement and consummate this transaction, Purchaser
represents and warrants to Seller that:
(a) Organization and Authority. Purchaser has been duly organized and is
--------------------------
validly existing as a Maryland real estate investment trust, in good standing in
the State of Maryland and will be qualified to do business in the state in which
the Real Property is located on the Closing Date. Subject only to obtaining
certain internal approvals on or before the expiration of the Due Diligence
Period, Purchaser has the full right and authority and has obtained any and all
consents required to enter into this Agreement and to consummate or cause to be
consummated the transactions contemplated hereby. This Agreement has been, and
all of the documents to be delivered by Purchaser at the Closing will be,
authorized and properly executed and constitutes, or will constitute, as
appropriate, the valid and binding obligation of Purchaser, enforceable in
accordance with their terms.
(b) Conflicts and Pending Action. There is no agreement to which
----------------------------
Purchaser is a party or binding on Purchaser which is in conflict with this
Agreement. There is no action or proceeding pending or, to Purchaser's
knowledge, threatened against Purchaser which challenges or impairs Purchaser's
ability to execute or perform its obligations under this Agreement.
7.3 Survival of Representations and Warranties. The representations and
------------------------------------------
warranties set forth in this Article 7 are made as of the date of this Agreement
and are remade as of the Closing Date, subject to updates permitted under this
Agreement and Seller actions permitted under Paragraphs 4.1, and shall not be
--------------
deemed to be merged into or waived by the instruments of Closing, but shall
survive the Closing for a period of 1 year. Seller and Purchaser shall have the
right to bring an action thereon only if Seller or Purchaser, as the case may
be, has given the other party written notice of the circumstances giving rise to
the alleged breach within such 1-year period.
ARTICLE 8: MISCELLANEOUS
------------------------
8.1 Parties Bound. Neither party may assign this Agreement without the
-------------
prior written consent of the other, and any such prohibited assignment shall be
void; provided, however, that Purchaser may assign this Agreement without
Seller's consent to an Affiliate or to effect an Exchange pursuant to
Paragraph 8.17 hereof. Subject to the foregoing, this Agreement shall be binding
--------------
upon and inure to the benefit of the respective legal representatives,
successors, assigns, heirs, and devisees of the parties. For the purposes of
this paragraph, the term "Affiliate" means (a) an entity that directly or
---------
indirectly controls, is controlled by or is under common control with the
Purchaser or (b) an entity at least a majority of whose economic interest is
owned by Purchaser; and the term "control" means the power to direct the
management of such entity through voting rights, ownership or contractual
obligations.
8.2 Headings. The article and paragraph headings of this Agreement are
--------
for convenience only and in no way limit or enlarge the scope or meaning of the
language hereof.
8.3 Invalidity and Waiver. If any portion of this Agreement is held
---------------------
invalid or inoperative, then so far as is reasonable and possible the remainder
of this Agreement shall be deemed valid and operative, and, to the greatest
extent legally possible, effect shall be given to the intent manifested by the
portion held invalid or inoperative. The failure by either party to enforce
against the other any term or provision of this Agreement shall
-13-
not be deemed to be a waiver of such party's right to enforce against the other
party the same or any other such term or provision in the future.
8.4 Governing Law. This Agreement shall, in all respects, be governed,
-------------
construed, applied, and enforced in accordance with the law of the state in
which the Real Property is located.
8.5 Survival. The provisions of this Agreement that contemplate
--------
performance after the Closing and the obligations of the parties not fully
performed at the Closing shall survive the Closing for a period of 1 year and
shall not be deemed to be merged into or waived by the instruments of Closing.
8.6 No Third Party Beneficiary. This Agreement is not intended to give
--------------------------
or confer any benefits, rights, privileges, claims, actions, or remedies to any
person or entity as a third party beneficiary, decree, or otherwise.
8.7 Entirety and Amendments. This Agreement embodies the entire
-----------------------
agreement between the parties and supersedes all prior agreements and
understandings relating to the Property. This Agreement may be amended or
supplemented only by an instrument in writing executed by the party against whom
enforcement is sought.
8.8 Time. Time is of the essence in the performance of this Agreement.
----
8.9 Confidentiality. Neither party shall make any public announcement
---------------
or disclosure of any information related to this Agreement to outside brokers or
third parties (other than Broker), before or after the Closing, without the
prior written specific consent of the other party; provided, however, that
either party may make disclosure of this Agreement to its investors, lenders,
creditors, officers, employees and agents as necessary to perform its
obligations hereunder.
8.10 Attorneys' Fees. Should either party employ attorneys to enforce
---------------
any of the provisions hereof, the party against whom any final judgment is
entered agrees to pay the prevailing party all reasonable costs, charges, and
expenses, including attorneys' fees, expended or incurred in connection
therewith.
8.11 Notices. All notices required or permitted hereunder shall be in
-------
writing and shall be served on the parties at the addresses set forth in
Paragraph 1.1. Any such notices shall be either (a) sent by overnight delivery
-------------
using a nationally recognized overnight courier, in which case notice shall be
deemed delivered one business day after deposit with such courier, (b) sent by
telefax, in which case notice shall be deemed delivered upon receipt of
confirmation of the transmission of such notice with a copy sent by certified
mail, return receipt requested, or by overnight delivery as provided above, or
(c) sent by personal delivery, in which case notice shall be deemed delivered
upon receipt. A party's address may be changed by written notice to the other
party; provided, however, that no notice of a change of address shall be
effective until actual receipt of such notice. Copies of notices are for
informational purposes only, and a failure to give or receive copies of any
notice shall not be deemed a failure to give notice.
8.12 Construction. The parties acknowledge that the parties and their
------------
counsel have reviewed and revised this Agreement and -- that the normal rule of
construction -- to the effect that any ambiguities are to be resolved against
the drafting party shall not be employed in the interpretation of this Agreement
or any exhibits or amendments hereto.
8.13 Calculation of Time Periods. Unless otherwise specified, in
---------------------------
computing any period of time described herein, the day of the act or event after
which the designated period of time begins to run is not to be included and the
last day of the period so computed is to be included at, unless such last day is
a Saturday, Sunday or legal holiday for national banks in the location where the
Property is located, in which event the period shall run until the end of the
next day which is neither a Saturday, Sunday, or legal holiday. The last day of
any period of time described herein shall be deemed to end at 6 p.m. Central
Daylight Savings Time.
-14-
8.14 Information and Audit Cooperation. At Purchaser's request, at any
---------------------------------
time before or after the Closing, Seller shall provide to Purchaser's designated
independent auditor access to the books and records of the Property, and all
related information regarding the period for which Purchaser is required to have
the Property audited under the regulations of the Securities and Exchange
Commission, and Seller shall provide to such auditor a representation letter
regarding the books and records of the Property, in substantially the form of
Exhibit H attached hereto, in connection with the normal course of auditing the
---------
Property in accordance with generally accepted auditing standards. The Purchaser
agrees to indemnify and hold harmless the Seller from any claim, damage, loss,
or liability to which Seller is at any time subjected by any person who is not a
party to this Agreement as a result of Seller's compliance with this paragraph.
The obligations and rights of the parties under this Paragraph 8.14 shall
--------------
survive the Closing or, with respect to Purchaser's foregoing indemnity, any
termination of this Agreement.
8.15 Indemnity Limitations and Procedures. The following provisions
------------------------------------
govern actions for indemnity under this Agreement:
(a) Limitation of Indemnities. The indemnities provided under this
-------------------------
Agreement (exclusive of the representations and warranties under Article 7) by,
---------
respectively, Seller (the "Seller Indemnities") and Purchaser (the "Purchaser
------------------ ---------
Indemnities") shall be limited as follows: (i) Each of the Seller Indemnities
-----------
and the Purchaser Indemnities shall survive the Closing for a period of 1 year.
Seller and Purchaser shall have the right to bring an action thereon only if
Seller or Purchaser, as the case may be, has given the other party written
notice of the circumstances giving rise to the alleged breach within such 1-year
period; (ii) Each of the Seller Indemnities and the Purchaser Indemnities shall,
respectively, be limited to a total amount of $250,000.
(b) Procedure for Indemnity. Promptly after receipt by an indemnitee of
-----------------------
notice of any claim, such indemnitee will, if a claim in respect thereof is to
be made against the indemnitor, deliver to the indemnitor written notice thereof
and the indemnitor shall have the right to participate in and, if the indemnitor
agrees in writing that it will be responsible for any costs, expenses,
judgments, damages, and losses incurred by the indemnitee with respect to such
claim, to assume the defense thereof, with counsel mutually satisfactory to the
parties; provided, however, that an indemnitee shall have the right to retain
its own counsel, with the fees and expenses to be paid by the indemnitor, if the
indemnitee reasonably believes that representation of such indemnitee by the
counsel retained by the indemnitor would be inappropriate due to actual or
potential differing interests between such indemnitee and any other party
represented by such counsel in such proceeding. The failure of indemnitee to
deliver written notice to the indemnitor within a reasonable time after
indemnitee receives notice of any such claim shall relieve such indemnitor of
any liability to the indemnitee under this indemnity only if and to the extent
that such failure is prejudicial to its ability to defend such action, and the
omission so to deliver written notice to the indemnitor will not relieve it of
any liability that it may have to any indemnitee other than under this
indemnity. If an indemnitee settles a claim without the prior written consent of
the indemnitor, then the indemnitor shall be released from liability with
respect to such claim unless the indemnitor has unreasonably withheld such
consent.
8.16 Execution in Counterparts. This Agreement may be executed in any
-------------------------
number of counterparts, each of which shall be deemed to be an original, and all
of such counterparts shall constitute one Agreement. To facilitate execution of
this Agreement, the parties may execute and exchange by telephone facsimile
counterparts of the signature pages.
8.17 Section 1031 Exchange. Either party may consummate the sale or
---------------------
purchase of the Property as part of a so-called like kind exchange (the
"Exchange") pursuant to (S)(S) 1031 of the Internal Revenue Code of 1986, as
--------
amended (the "Code"), provided that: (i) the Closing shall not be delayed or
----
affected by reason of the Exchange nor shall the consummation or accomplishment
of the Exchange be a condition precedent or condition subsequent to the
exchanging party's obligations under this Agreement; (ii) the exchanging party
shall effect the Exchange through an assignment of this Agreement, or its rights
under this Agreement, to a qualified intermediary; (iii) the non-exchanging
party shall not be required to take an assignment of the purchase agreement for
the relinquished property or be required to acquire or hold title to any real
property for purposes of consummating the Exchange; and (iv) the exchanging
party shall pay any additional costs that would not otherwise have been incurred
by
-15-
Purchaser or Seller had the exchanging party not consummated its purchase
through the Exchange. The non- exchanging party shall not by this agreement or
acquiescence to the Exchange (1) have its rights under this Agreement affected
or diminished in any manner or (2) be responsible for compliance with or be
deemed to have warranted to the exchanging party that the Exchange in fact
complies with (S)(S) 1031 of the Code. The exchanging party agrees to indemnify
and hold harmless the non-exchanging party from any claim, damage, loss or
liability to which the non-exchanging party or any affiliate thereof is at any
time subjected as a result of the Exchange.
8.18 Limitation of Liability. In accordance with the Declaration of Trust
-----------------------
of Purchaser, notice is hereby given that all persons dealing with Purchaser
shall look to the assets of Purchaser for the enforcement of any claim against
Purchaser, as none of the trustees, officers, employees and shareholders of
Purchaser assume any personal liability for obligations entered into by or on
behalf of Purchaser.
8.19 Further Assurances. In addition to the acts and deeds recited herein
------------------
and contemplated to be performed, executed and/or delivered by either party at
Closing, each party agrees to perform, execute and deliver, but without any
obligation to incur any additional liability or expense, on or after the Closing
any further deliveries and assurances as may be reasonably necessary to
consummate the transactions contemplated hereby or to further perfect the
conveyance, transfer and assignment of the Property to Purchaser as herein
provided.
8.20 Prior Understandings and Agreements. 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. Purchaser acknowledges that it has
inspected or will inspect the Property and, except as expressly provided herein,
that it accepts same in its "as is" condition, with all faults and conditions
thereon subject to use, ordinary wear and tear and natural deterioration.
Purchaser further acknowledges that, except as expressly warranted by Seller in
this Agreement, neither Seller nor any agent or representative of Seller has
made, and Seller is not liable for or bound in any manner by, any express or
implied warranties, guaranties, promises, statements, inducements,
representations or information pertaining to the Property.
Any information, reports, statements, documents or records ("Disclosures")
-----------
provided or made to Purchaser or its constituents by Seller, its agents or
employees concerning the physical condition of the Property shall not be
representations or warranties. Purchaser shall not rely on such Disclosures, but
rather, Purchaser shall rely only on its own inspection of the Property.
EXCEPT AS EXPRESSLY WARRANTED BY SELLER TO PURCHASER IN ARTICLE 7 OF THIS
AGREEMENT, PURCHASER ACKNOWLEDGES AND AGREES THAT SELLER 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.
8.21 Return of Information. If for any reason Purchaser does not
---------------------
consummate the Closing, then Purchaser shall, upon Seller's request, return to
Seller all information supplied by Seller to Purchaser in reference to the
Property, shall deliver to Seller, without representation or warranty, copies of
any and all studies, reports, surveys and other information, data and/or
documents relating to the Property or any part thereof prepared by third
-16-
parties for Purchaser, and shall not use the information contained in the
foregoing materials, or in any information prepared by Purchaser or its
employees in connection with the Property, to the detriment of Seller. Seller
shall not have the right to rely on any report or other information delivered by
Purchaser without first obtaining the written consent of the party who prepared
such report or other information.
-17-
SIGNATURE PAGE TO AGREEMENT OF
PURCHASE AND SALE
BY AND BETWEEN
FIRST CAPITAL INSURED REAL ESTATE LIMITED PARTNERSHIP
AND
SECURITY CAPITAL PACIFIC TRUST
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the
day and year written below.
FIRST CAPITAL INSURED REAL ESTATE LIMITED
PARTNERSHIP,
an Illinois limited partnership
By: First Capital Financial Corporation,
a Florida corporation, its General
Partner
By: /s/ Xxxxxxx X. Xxxx
-------------------------------------
Name: Xxxxxxx X. Xxxx
-----------------------------------
Date: 8/2/86 Title: Assistant Vice President
----------------- ----------------------------------
"Seller"
SECURITY CAPITAL PACIFIC TRUST
By: [Signature Appears Here]
------------------------------------
Name: [Name Appears Here]
----------------------------------
Date: 7/29/96 Title: MD
----------------- ---------------------------------
"Purchaser"
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