PURCHASE AND SALE AGREEMENT
AND ESCROW INSTRUCTIONS
[Canyon View Apartments]
BETWEEN
CANYON VIEW JOINT VENTURE,
an Arizona Joint Venture Partnership
and
CANYON VIEW EAST JOINT VENTURE,
an Arizona Joint Venture Partnership,
as Seller,
AND
TUCSON REALTY HOLDING CO., INC.,
a Delaware corporation,
as Purchaser
TABLE OF CONTENTS
Paragraph/Topic Page
Recitals 1
Section 1. Definitions.................................................... 2
Section 2. Purchase and Sale.............................................. 4
Section 3. Purchase Price................................................. 4
Section 4. Closing........................................................ 5
Section 5. Conditions to Closing........................................... 8
Section 6. Title and Survey............................................... 11
Section 7. Representations and Warranties................................. 13
Section 8. Purchaser's Acceptance of Property As-Is....................... 19
Section 9. Seller's Covenants............................................. 20
Section 10. Prorations.................................................... 21
Section 11. Transfer Taxes; Title Charges;
Other Closing Costs and Escrow Cancellation............... 23
Section 12. Risk of Loss.................................................. 24
Section 13. Condemnation.................................................. 25
Section 14. Default....................................................... 26
Section 15. Notices....................................................... 28
Section 16. Time of Essence............................................... 29
Section 17. Termination of Agreement...................................... 29
Section 18. Governing Law; Jurisdiction; Venue............................ 29
Section 19. Counterparts and Facsimile Signatures......................... 29
Section 20. Captions...................................................... 29
Section 21. Assignability................................................. 30
Section 22. Binding Effect................................................ 30
Section 23. Modifications; Waiver......................................... 30
Section 24. Entire Agreement.............................................. 30
Section 25. Partial Invalidity; Further Assurances........................ 31
Section 26. Survival...................................................... 31
Section 27. No Third-Party Rights......................................... 31
Section 28. Attorneys' Fees............................................... 31
Section 29. Broker........................................................ 31
Section 30. Opening of Escrow............................................. 32
Section 31. Exhibits...................................................... 32
Section 32. Form of Title Policy.......................................... 32
Section 33. No Partnership or Other Liability............................. 33
Section 34. General Provisions Regarding Title Company.................... 33
Section 35. Conditions to Seller's Performance.............................34
LIST OF EXHIBITS
.........A -- Legal Description
.........B -- Diagram of the Property and Improvements
.........C -- Schedule of Personal Property
.........D -- Form of Special Warranty Deed
.........E -- Form of Xxxx of Sale
.........F -- Form of Assignment of Leases
.........G -- Assignment of Tradename and Trademark Rights
.........H -- Form of Assignment of Intangible Property
.........I -- Form of Tenant Letters
.........J -- Certificate of Rent Roll
.........K -- Form of Non-Foreign Affidavit
.........L -- Form of Affidavit of Value
LA980570.058
PURCHASE AND SALE AGREEMENT
AND ESCROW INSTRUCTIONS
Canyon View Apartments
This Purchase and Sale Agreement and Escrow Instructions (Agreement) is
entered into as of February 19, 1998 (Effective Date), by and between Canyon
View Joint Venture, an Arizona joint venture partnership, and Canyon View East
Joint Venture, an Arizona joint venture partnership (collectively, Seller), and
Tucson Realty Holding Co., Inc., a Delaware corporation (Purchaser), with
reference to the following:
Recitals
A........Seller is the owner of:
(1)......the land (Real Property) in Tucson (the City), Arizona, and
located at 0000 Xxxxxx Xxxxx Xxxxx. The Real Property is more particularly
described in Exhibit A and generally depicted on Exhibit B attached hereto and
incorporated herein by this reference and is commonly known as Canyon View
Apartments;
(2)......all structures, buildings, improvements and fixtures on the
Real Property (collectively, Improvements), including without limitation an
apartment complex consisting of 264 units (the Units) situated in twenty-seven
(27) buildings (the Complex) together with all equipment, appliances, and
amenities used in connection with the Complex;
(3)......certain personal property on the Real Property or the
Improvements or personal property used primarily in connection with the
operation and maintenance of the Real Property or the Improvements, more
particularly described in Exhibit C attached hereto and incorporated herein by
this reference (Personal Property);
(4)......all of Seller's interest in all leases and other agreements,
if any, to occupy all or any portion on the Units, as amended from time to time
(such leases and agreements being sometimes collectively referred to in this
Agreement as Leases);
(5)......all of Seller's interest, if any, in mineral, water and
irrigation rights, if any, running with or otherwise pertaining to the Real
Property; and,
(6)......all intangible property used in connection with the Real
Property, the Improvements or the Personal Property, including but not limited
to the trade names Canyon View and Canyon View East and related trademarks and
associated good will (collectively the Tradename) used in connection with the
Real Property or the Improvements (but not any tradename utilizing the term
"L'Auberge"); plans and specifications in possession, custody or control of
Seller or its property manager that were prepared in connection with the
construction of the Improvements; all hereditaments, privileges, tenements and
appurtenances pertaining to the Real Property; all Seller's rights to open or
proposed xxxxxxxx, xxxxxxx, xxxxx, xxxxxxx, alleys, easements, strips, gores and
rights-of-way in any way affecting the Real Property; all currently effective
and transferable licenses, permits and warranties for the Real Property, the
Improvements and the Personal Property; and all written contracts and guarantees
running in favor of Seller in effect at Closing as approved by Purchaser that
relate in any way to the Property (Contracts) (collectively, Intangible
Property).
The Real Property, the Improvements, the Personal Property, the Leases
and the Intangible Property are sometimes collectively referred to in this
Agreement as the Property.
B........Purchaser desires to purchase the Property from Seller, and
Seller desires to sell the Property to Purchaser, on the terms and conditions
set forth in this Agreement.
For good and valuable consideration, the receipt and adequacy of which
are hereby acknowledged, the parties agree as follows:
Section 1. Definitions.
As used in this Agreement, the following terms shall be defined in
Section 1:
Agreement is defined in the preamble.
Approved Exceptions is defined in Section 6(b).
Business Day means a calendar day on which banks in Phoenix, Arizona
shall be open to transact business (other than by automated teller or
similar equipment).
City is defined in Recital A(1).
Closing is defined in Section 4(a).
Closing Date is defined in Section 4(a).
Code is defined in Section 4(c)(viii).
Complex is defined in Recital A(2).
Contracts is defined in Recital A(6).
Court is defined in Section 5(a)(1).
Disapproval Notice is defined in Section 6(b).
Disapproved Exceptions is defined in Section 6(b).
Due Diligence Period is defined in Section 5(a).
Effective Date is defined in the preamble.
Xxxxxxx Money is defined in Section 3(b).
Escrow is defined in Section 4(a).
ERISA is defined in Section 7(d).
Hazardous Material is defined in Section 7(a)(vi).
Improvements is defined in Recital A(2).
Intangible Property is defined in Recital A(6).
Leases is defined in Recital A(4).
Loss Threshold is defined in Section 12(b).
Opening of Escrow is defined in Section 30.
Personal Property is defined in Recital A(3).
Preliminary Report is defined in Section 6(a).
Property is defined in Recital A.
Purchase Price is defined in Section 3.
Purchase Transaction is defined in Section 2.
Purchaser is defined in the preamble.
Purchaser's Event of Default is defined in Section 14(a).
Real Property is defined in Recital A(1).
Seller is defined in the preamble.
Seller's actual knowledge is defined in Section 7(a).
Seller's Broker is defined in Section 29.
Seller's Disclosure Documentation is defined in Section 5(a)(ii).
Seller's Event of Default is defined in Section 14(b).
Studies is defined in Section 5(a)(i).
Survey is defined in Section 6(c).
Survival Items is defined in Section 5(a).
Tenants is defined in Section 4(b).
Tenant Letters is defined in Section 4(c)(vi).
Title Company is defined in Section 3(a).
Title Policy is defined in Section 6(a).
Tradename is defined in Recital A(6).
Unit is defined in Recital A(2).
Section 2. Purchase and Sale.
In consideration of the mutual covenants contained in this Agreement,
Seller agrees to sell the Property to Purchaser, and Purchaser agrees to
purchase the Property from Seller, on the terms and conditions hereinafter set
forth (the Purchase Transaction).
Section 3. Purchase Price.
The purchase price for the Property shall be Sixteen Million Seven
Hundred Fifty Thousand and No/100 Dollars ($16,750,000.00) (Purchase Price). The
Purchase Price shall be payable as follows:
(a) The sum of Two Million and No/100 Dollars ($2,000,000.00) shall be
tendered to Seller in the form of Purchaser's check or wire transfer made
payable to Chicago Title Insurance Company (Title Company) simultaneously with
the Opening of Escrow (Xxxxxxx Money). The Xxxxxxx Money shall be deposited with
and held by Title Company in accordance with this Agreement. Purchaser shall
concurrently with its deposit of the Xxxxxxx Money furnish its Federal Taxpayer
Identification No. to Title Company. The Xxxxxxx Money shall be invested by
Title Company in a federally insured, daily interest-bearing account as directed
by Purchaser, and all interest shall become part of the Xxxxxxx Money. As long
as the conditions precedent in Section 5(a) shall have been satisfied or
otherwise waived, in writing, by Purchaser and Seller does not default in the
performance of its obligations under this Agreement, the Xxxxxxx Money shall be
applied against the Purchase Price at the Closing or, if a Purchaser's Event of
Default exists under this Agreement, immediately disbursed to Seller pursuant to
Section 14 as Seller's agreed and total liquidated damages, it being
acknowledged and agreed by Purchaser and Seller that it would be extremely
difficult or impossible to determine Seller's exact damages. If a Seller's Event
of Default exists under this Agreement and Purchaser elects to terminate this
Agreement, the Xxxxxxx Money together with accrued interest thereon shall be
immediately released to Purchaser. In the event this Agreement is terminated or
cancelled as provided herein, the parties agree to execute such documentation as
may reasonably be requested by Title Company to effectuate the release of the
Xxxxxxx Money to the party entitled thereto.
(b) On or before the Closing Date, Purchaser shall deposit with Title
Company, in immediately available funds in addition to the Xxxxxxx Money, the
sum necessary to make the total consideration equal to the Purchase Price, plus
or minus prorations and closing costs, in accordance with this Agreement, which
funds are to be held in escrow by Title Company until cancellation of this
Agreement as provided in this Agreement or paid to Seller at the Closing.
Section 4. Closing.
(a) The purchase and sale of the Property (Closing) shall be
consummated through an escrow established by the Title Company (Escrow) that
shall close at Title Company's office by 5:00 p.m. MST on the date (Closing
Date) that is the later of five (5) Business Days after the expiration of the
Due Diligence Period (as defined below) and five (5) Business Days after the
consents required in Section 35(b) below shall have been obtained unless such
Closing Date is extended pursuant to this Agreement or otherwise by written
agreement signed by the parties.
(b) Prior to or at the Closing, Purchaser shall pay the Purchase Price
as set forth in Section 3(c) above into the Escrow, Purchaser and Seller shall
execute and deliver into Escrow all necessary documents and Seller shall deliver
marketable fee title free and clear of all liens, encumbrances, or judgments and
possession of the Property to Purchaser free and clear of all tenants or
occupants other than the tenants of the Units under the Leases (Tenants).
(c) On or before the Closing Date, Seller shall deliver into Escrow the
following documents and things:
(i) a Special Warranty Deed, in recordable form and
properly executed and acknowledged on behalf of Seller, conveying to
Purchaser the Real Property and the Improvements in fee simple, subject
only to the Approved Exceptions, in substantially the form attached
hereto as Exhibit D and incorporated herein by this reference;
(ii) a Xxxx of Sale executed by Seller transferring to
Purchaser the Personal Property, with a warranty of title only. No
warranty of condition or fitness for any use or purpose will be made.
The Xxxx of Sale shall be substantially in the form attached hereto as
Exhibit E and incorporated herein by this reference;
(iii) a duly executed Assignment of Leases that assigns and
transfers to Purchaser, as of the Closing, all of Seller's interests
under the Leases and that contains an assumption by Purchaser of
Seller's obligations under the Leases, including without limitation
obligations relating to security deposits. The Assignment of Leases
shall be substantially in the form attached hereto as Exhibit F and
incorporated herein by this reference;
(iv) a duly executed Assignment of Tradename and Trademark
Rights that assigns and transfers all of Seller's interest in the
Tradename. The Assignment of Tradename and Trademark Rights shall be
substantially in the form attached hereto as Exhibit G and incorporated
by reference;
(v) a duly executed and acknowledged Assignment of
Intangible Property that assigns and transfers to Purchaser as of the
Closing all of Seller's interests to the Intangible Property and the
Contracts substantially in the form attached hereto as Exhibit H and
incorporated herein by this reference;
(vi) a form of letter to Tenants (Tenant Letters) at the
Real Property and Improvements that instruct the Tenants, after the
Closing Date, to pay rent to Purchaser and to recognize Purchaser as
the new lessor under their respective Leases substantially in the form
attached hereto as Exhibit I attached hereto and incorporated by
reference;
(vii) originals or, if originals are not available, complete
copies, of all Leases and amendments thereto and tenant files in the
possession of Seller or its property manager, together with a
Certificate of Rent Roll substantially in the form of Exhibit J
attached hereto and incorporated herein by this reference dated as of
the Closing Date and certified no later than five (5) days prior to the
Closing Date;
(viii) Seller's affidavit that Seller is not a foreign person
within the meaning of Section 1445(f)(3) of the Internal Revenue Code
of 1986, as amended (the Code) substantially in the form attached
hereto as Exhibit K and incorporated by reference as prescribed by
Treas. Reg. 1.1445-2(b). If Seller does not timely furnish the
Non-Foreign Affidavit, Purchaser may withhold (or direct Title Company
to withhold) from the Purchase Price an amount equal to the amount
required to be so withheld pursuant to Section 1445(a) of the Code, and
such withheld funds shall be deposited with the Internal Revenue
Service as required by Section 1445(a) and the regulations promulgated
thereunder. The amount withheld, if any, shall nevertheless be deemed
to be part of the Purchase Price paid to Seller;
(ix) a duly executed and acknowledged Affidavit of Value
substantially in the form attached hereto as Exhibit L and incorporated
by reference; and
(x) termination notices that terminate, as of the Closing
Date, all of the management services and leasing contracts for the
Improvements as selected by Purchaser in accordance with this
Agreement;
(xi) delivery by Seller to Purchaser at Closing of the
security deposits under the Leases, less any portion that has not been
applied, in the form of a credit in favor of Purchaser against the
Purchase Price;
(xii) delivery by Seller to Purchaser at Closing of a
complete list of the names, addresses and telephone numbers of all
contractors, subcontractors and materials suppliers known to Seller or
its property manager and who worked on or supplied materials in regard
to the Improvements within the last twelve (12) months prior to
Closing;
(xiii) Seller, at Seller's cost and prior to Closing, paying
in full all real estate commissions which may be due from Seller in
regard to the Leases, including any commission due in regard to any of
the Leases which commissions shall be due and payable on or before
Closing or within three (3) months after Closing. In this regard,
Seller shall deposit with Title Company, for delivery to Purchaser at
Closing, written documentation signed by the applicable real estate
brokers that such commissions, if any, to be paid by Seller have been
paid in full;
(xiv) Seller, at Seller's cost, completing by Closing all
improvements, if any, to the Units required under the respective Leases
and, in the event any Unit is vacated by a Tenant up to (but not
including) the fifth (5th) Business Day prior to the Closing,
refurbishing such Unit to a "tenant-ready" condition;
(xv) delivery by Seller to Purchaser at Closing of any
plans, specifications and contracts relating to the Property in any
material respect that had not previously been delivered by Seller to
Purchaser; and
Purchaser shall have obtained or otherwise received at Closing evidence that all
transaction privilege taxes, sales taxes and personal property taxes of the
Property, if any, have been paid to the day immediately prior to the Closing
Date or that such payment has been adequately provided for, such evidence to be
in the form of tax clearance certificates from the City of Tucson and the State
of Arizona.
If the foregoing conditions or any other condition to Purchaser's obligation to
close the Purchase Transaction as set forth in this Agreement have not been
satisfied by the specified date or Closing, as the case may be, then Purchaser
shall have the right, at Purchaser's sole option, exercisable by written notice
to Seller and Title Company but subject to Seller's right to satisfy any such
condition identified in writing by Purchaser within five (5) Business Days
following Seller's receipt of such written notice, to cancel this Agreement,
whereupon the Xxxxxxx Money plus interest shall be paid immediately by Title
Company to Purchaser and, except for any Survival Items (as defined below),
neither Purchaser nor Seller shall have any further liability or obligation
under this Agreement.
Section 5. Conditions to Closing.
In addition to the other conditions to the completion of the Purchase
Transaction, Seller and Purchaser agree that the Closing is subject to the
satisfaction, approval or waiver, in writing, by Purchaser, in Purchaser's
reasonable discretion, of the following conditions contained in this Section 5:
(a) Purchaser's due diligence conditions shall be the following:
(i) the conduct and approval of any inspection, investigation
and approval, deemed necessary by Purchaser in Purchaser's reasonable
discretion and at Purchaser's sole cost and expense, of any physical,
structural, geological and environmental or other condition of the
Property (including without limitation the availability of access,
utility services, zoning, environmental risks, engineering and soil
conditions) deemed necessary by Purchaser to determine the feasibility
of acquiring the Property (collectively, the Studies). In the event
Purchaser withdraws from the Purchase Transaction for any reason
whatsoever other than pursuant to Section 35(a) below, Purchaser shall
immediately deliver to Seller each and all of the Studies prepared or
undertaken by or for the benefit of Purchaser in connection therewith.
The Studies shall include, but not be limited to, Purchaser's right to:
(i) review and approve the Survey (as defined below), the Leases and
the Contracts; and (ii) meet and confer with Seller's property manager.
For the purpose of conducting physical inspections by Purchaser, Seller
agrees to provide full and complete access to the Property at
reasonable times, upon not less than two (2) Business Days' notice to
Seller or to Seller's property manager, up to and including the Closing
Date. Purchaser shall conduct such inspections in a nondisruptive
manner as to the Tenants and in compliance with any applicable legal
requirements and shall in no event conduct destructive testing of the
Real Property and the Improvements without Seller's prior written
consent, which consent may be granted or withheld in Seller's sole
discretion. Purchaser agrees to defend, indemnify and hold Seller,
Seller's agents and employees, and the Property harmless from and
against any losses, costs, damages, claims or liabilities, including
but not limited to mechanics' and materialmen's liens, personal injury
or death, property damage and attorneys' fees and costs, arising from
or otherwise relating to Purchaser's entry upon the Property for the
aforementioned purposes under this subsection. Purchaser shall
immediately repair any damage caused by such inspection and shall
restore the Real Property and the Improvements to their condition prior
to such testing. Purchaser's indemnity, hold harmless and repair
obligations under this Section shall survive the termination or
expiration of this Agreement or the Closing, as applicable, for a
period of twelve (12) months after which Purchaser's obligations shall
automatically terminate unless prior to the end of the twelve-month
period, Seller shall have brought suit against Purchaser in the Pima
County, Arizona Superior Court or the United States District Court for
the District of Arizona located in Phoenix, Arizona (either, the Court)
to enforce Purchaser's indemnity, hold harmless and repair obligations.
(ii) subject to Seller's delivery obligations under Section
5(b), inspection and approval, in Purchaser's reasonable discretion, of
all documents relating to the Property that are in the possession of
Seller or its property manager or under their custody or control
(collectively, Seller's Disclosure Documentation), all of which shall
be made available at all reasonable times after Opening of Escrow to
Purchaser at the Property for Purchaser's inspection and copying at
Purchaser's sole cost and expense. The information made available to
Purchaser by Seller under this subsection shall not be released or
otherwise disclosed by Purchaser to any third parties other than to
Purchaser's attorneys, accountants or in-house property evaluation
personnel, consultants or engineers or to any prospective partner of,
or lender to, Purchaser in connection with the Purchase Transaction or
as required by law or court order. If the Purchase Transaction does not
close for any reason, Purchaser and Purchaser's agents,
representatives, attorneys and accountants shall refrain from
disclosing such information to any third party whatsoever. Purchaser
shall defend, indemnify and hold Seller harmless (which indemnification
shall survive the termination or expiration of this Agreement) for all
loss, damage or expense incurred by Seller because of any unauthorized
disclosure of such information by Purchaser or Purchaser's attorneys,
accountants or in-house property evaluation personnel; provided,
however, that Purchaser's indemnity and hold harmless obligations shall
only exist for a period of twelve (12) months after the effective date
of such termination or expiration after which Purchaser's obligations
shall automatically terminate unless prior to the end of the
twelve-month period, Seller shall have brought suit against Purchaser
in the Court to enforce Purchaser's indemnity and hold harmless
obligations.
During the period commencing with the Opening of Escrow (as defined below) and
ending at 5:00 p.m. (MST) on the fourteenth (14th) day thereafter (Due Diligence
Period), Purchaser shall have the right to examine and investigate to
Purchaser's reasonable satisfaction the physical, financial and legal status of
the Property and the Seller's Disclosure Documentation. In the event Purchaser
notifies Seller in writing within the Due Diligence Period with reasonable
particularity that one or more of the conditions in Section 5(a) and 6(b) shall
not have been satisfied or otherwise waived by Purchaser, this Agreement shall
terminate at the end of the final day of the Due Diligence Period. Upon
termination of this Agreement, the Xxxxxxx Money, together with accrued interest
thereon, shall be immediately refunded to Purchaser by Title Company, both
Seller and Purchaser shall be released from all further obligations under this
Agreement (excluding the indemnity, hold harmless and repair obligations of
Purchaser under Section 5(a)) and neither Seller nor Purchaser shall be subject
to a claim by the other for damages of any kind, except for Purchaser's
indemnity, hold harmless and repair obligations provided in Section 5(a) of this
Agreement and in other indemnity provisions of this Agreement, if any (a
Survival Item). In the event Purchaser fails to notify Seller in writing within
the Due Diligence Period that one or more of such conditions shall not have been
satisfied or waived by Purchaser, each of such conditions shall conclusively be
deemed to have been disapproved.
(b) Seller agrees to make available and to cause its property manager
to make available at the Property to Purchaser or Purchaser's agents or
employees all information requested by Purchaser in writing that is in the
possession, custody or control of Seller or its property manager relating to the
leasing, operating, maintenance, construction, repair, zoning, platting,
engineering, soil tests, water tests, environmental tests, construction, master
planning, architectural drawings and like matters regarding the Property as part
of Seller's Disclosure Documentation.
(c) Seller's representations and warranties contained in this Agreement
shall be true and correct in all material respects as of the Closing, and Seller
shall have performed each and every obligation to be performed by Seller under
this Agreement prior to or at the Closing.
Section 6. Title and Survey.
(a) Within five (5) Business Days following the Opening of Escrow,
Seller shall cause Title Company to deliver to Purchaser a current title
insurance commitment from Title Company covering the Property, together with
full and legible copies of all supporting documents (collectively, Preliminary
Report). The Preliminary Report is to be preliminary to the extended coverage
owner's policy of title insurance to be issued to Purchaser by Title Company
insuring Purchaser's fee simple title to the Property in the amount of the
Purchase Price (the Title Policy). Seller shall pay only the premium for a
standard owner's policy in the amount of the Purchase Price with the Purchaser
to pay all additional costs in regard to extended coverage, if elected by
Purchaser, and for all endorsements, if any, required by Purchaser.
(b) In addition to the contingencies set forth in Section 5, Purchaser
shall have to the end of the Due Diligence Period to disapprove, in writing, any
exceptions to title shown on the Preliminary Report or reflected on the Survey
(as defined below) (collectively, Disapproved Exceptions) and to provide Seller
and Title Company with notice of disapproval in writing describing the defect
with reasonable particularity (Disapproval Notice). In the event Purchaser fails
to deliver a Disapproval Notice to Seller and Title Company within the Due
Diligence Period, all such exceptions to title shall be deemed to have been
disapproved. Within ten (10) Business Days after Seller's receipt of the
Disapproval Notice, if any, Seller shall notify Purchaser whether Seller intends
to remove the Disapproved Exceptions. If Seller notifies Purchaser in writing
within such ten-day period that Seller intends to eliminate the Disapproved
Exceptions, Seller shall do so prior to or at the Closing. If Seller fails to
notify Purchaser in writing within such ten-day period that Seller intends to
eliminate all of the Disapproved Exceptions or Seller elects to eliminate some
but not all of the Disapproved Exceptions, Purchaser may, by notifying Seller
and Title Company within five (5) Business Days after the later of (i)
Purchaser's receipt of Seller's notice to Purchaser or (ii) the end of Seller's
ten-day notice period, elect either to terminate this Agreement or to take title
to the Property subject to the Disapproved Exceptions that Seller has not
undertaken to remove. It shall be a condition to Purchaser's obligations
hereunder that Title Company issue the Title Policy at the Close of Escrow
insuring marketable fee title to the Real Property in Purchaser in the amount of
the Purchase Price, subject only to the following matters (collectively,
Approved Exceptions):
(i) a lien for current real property taxes or general or
special assessments not then delinquent;
(ii) matters affecting title to the Property not disapproved
by Purchaser in accordance with this Section 6(b); and
(iii) matters affecting title to the Property created by or
with the consent of Purchaser.
(c) Seller, at Seller's sole cost, shall deliver to Purchaser and Title
Company on or before 5:00 p.m. MST on or before February 10, 1998, a certified
ALTA survey of the Property (the Survey) to be completed by a surveyor licensed
in the State of Arizona, whereupon the legal description in the Survey as
approved by Buyer shall control over the description in Exhibit A to the extent
they may be inconsistent. The Survey shall be certified to Purchaser and Title
Company and shall set forth the legal description and boundaries of the Property
and all easements, encroachments and Improvements thereon and shall comply with
all requirements of Title Company in regard to Title Company's issuance of the
Title Policy. In the event Seller's delivery of the Survey is delayed beyond
February 10, 1998, the Due Diligence Period shall be extended for the same
period of delay, if any, beyond such date as Purchaser's sole remedy.
Section 7. Representations and Warranties.
(a) As used herein, "Seller's actual knowledge" shall mean the actual
knowledge of Xxxxxxx X. Xxxxx, the president of the corporate general partner of
the general partner of the managing venturer of Seller, without any duty of
inquiry. Seller represents and warrants to Purchaser, as of the Effective Date
and again as of the Closing Date, as follows:
(i) that to Seller's actual knowledge, Seller has
received no notice from any governmental authority of (A) any pending
or threatened zoning, building, fire or health code violations or
violations of other governmental regulations concerning the Property or
the operation of the Property that has not previously been corrected or
(B) any pending or threatened condemnation of the Property or any part
of the Property. Seller further covenants that if Seller should receive
any such notice prior to the Closing Date, Seller will provide
Purchaser with copies of the notice promptly following the receipt
thereof by Seller. As an additional condition precedent to Closing,
Seller agrees to use reasonable efforts to correct any matters
disclosed in any such notice on or before Closing; provided, however,
that Seller need not expend more than an aggregate amount of Ten
Thousand Dollars ($10,000) for such corrections. If any such matter(s)
cannot be corrected by Seller by Closing, Seller shall give Purchaser a
credit at Closing for the amount reasonably estimated by Seller and
Purchaser required to correct the matter(s), but in no event more than
Ten Thousand Dollars ($10,000). If the estimated cost to correct the
matter(s) is greater than Ten Thousand ($10,000) and Seller, by written
notice to Purchaser, elects not to correct the matter(s) prior to
Closing, Purchaser may deliver written notice of termination of this
Agreement to Seller and Title Company whereupon this Agreement shall
terminate and the Xxxxxxx Money shall be immediately returned to
Purchaser, unless Purchaser, in Purchaser's sole discretion, elects in
writing to pay the excess required to correct the matter(s);
(ii) that to Seller's actual knowledge, no legal
actions are pending or threatened against the Property, nor are there
any violations of building codes or other statutes affecting the use,
operation, occupancy and enjoyment of the Property;
(iii) that to Seller's actual knowledge, there exist no
violations of any statutes, ordinances, regulations or administrative
or judicial orders or holdings, whether or not appearing in public
records, with respect to the Improvements or the Property, and the
present use of the Property complies with existing zoning laws and
ordinances;
(iv) that to Seller's actual knowledge, Seller has
received no notices from insurers of defects in the Improvements which
have not been corrected;
(v) that to Seller's actual knowledge, there exist no
continuing, pending or threatened public improvements that would result
in a tax assessment or other similar charge being levied or assessed
against the Property;
(vi) that Seller has disclosed to Purchaser all
information, records and studies for the Property in the possession,
custody or control of Seller or its property manager concerning any
hazardous or toxic substance or material (as defined under any federal,
state or local law, statute, rule, regulation or ordinance) (Hazardous
Material) that are or have been stored, handled, disposed of or
released in, on or about the Property;
(vii) that to Seller's actual knowledge, Seller has not
participated in or approved, and there has not occurred, any
contamination of or release or disposal of any Hazardous Material in,
on or about the Property;
(viii) that no leases or other agreements for occupancy
are in effect for the Property except for the Leases as described on
the rent roll attached hereto as Exhibit J;
(ix) that to Seller's actual knowledge, Seller is not
in default in the performance of its obligations under any of the
Leases, and that Seller will not be in default thereunder as a result
of the passage of time.
(x) that to Seller's actual knowledge, all
mechanical, electrical, structural and plumbing systems for the
Property are in good operating condition;
(xi) that there exist no (A) agreements or
arrangements pursuant to which goods, services, water, equipment,
labor, supplies or any other items are being or will be furnished to
the Property, except as relate to the Intangible Property or to
standard arrangements for utility and maintenance services; (B)
agreements other than the Leases whereby any person or entity holds any
right, license or privilege to possess or use the Property; and (C)
licenses, franchises or permits issued or required for the ownership of
the Property;
(xii) that to Seller's actual knowledge, there exist no
agreements or understandings relating to the Property, except for this
Agreement and the agreements (if any) shown as exceptions to the title
to the Property;
(xiii) that the Purchase Transaction will not in any
material respect violate any other agreements to which Seller is a
party;
(xiv) that prior to Closing or any earlier termination
of this Agreement, Seller will not enter into or execute any
employment, management or service contract with respect to the Property
without Purchaser's prior written consent, which consent shall not be
unreasonably withheld, conditioned or delayed, unless such contract so
entered by Seller shall provide that such contract can be terminated by
Seller, or Seller's successor, at any time without penalty, upon not
more than thirty (30) days' prior written notice to the other party
thereto. When any such contracts are fully executed, Seller shall
deliver a copy thereof to Purchaser;
(xv) that no default of Seller exists under any of the
Contracts and, to Seller's actual knowledge, no default of the other
parties exists under any of the Contracts. Between the Effective Date
and the Closing Date, or any earlier termination of this Agreement,
Seller, without Purchaser's prior written consent which consent shall
not be unreasonably withheld, conditioned or delayed, shall not amend,
modify in any material respect (such as increasing or decreasing the
term or monetary obligations thereunder) or terminate any Contract or
Lease or waive any substantial right thereunder;
(xvi) that except as expressly provided otherwise in
Section 35 below, no consent of any third party is required in order
for Seller to enter into this Agreement and perform Seller's
obligations hereunder. Without limiting the generality of the
foregoing, no consent of any third party is required in order for
Seller to assign the Contracts to Purchaser;
(xvii) that except for any item to be prorated at
Closing in accordance with this Agreement, all bills or other charges,
costs or expenses arising out of or in connection with or resulting
from Seller's construction, use, ownership, or operation of the
Property up to Closing shall be paid in full by Seller on or before
Closing;
(xviii) that all general real estate taxes, assessments
and personal property taxes that have become due with respect to the
Property (except for those that will be prorated at Closing in
accordance with this Agreement) have been paid or will be so paid by
Seller prior to Closing;
(xix) that between the Effective Date and later of the
Closing Date or any earlier termination of this Agreement, Seller shall
not execute or enter into any new lease of any part of the
Improvements, except in the normal course of business using Seller's
standard form of lease and adhering to Seller's standard rental
schedule or otherwise subject to Purchaser's prior written consent,
such consent not to be unreasonably withheld, conditioned or delayed;
(xx) that except in the ordinary course of business or
as required by a governmental agency, Seller shall not place or permit
to be placed on any portion of the Real Property any new improvements
of any kind or remove or permit any improvements to be removed from the
Real Property without the prior written consent of Purchaser, which
consent may be granted or withheld for any reason;
(xxi) that Seller shall not restrict, rezone, file or
modify any development plan or zoning plan or establish or participate
in the establishment of any improvements district with respect to all
or any portion of the Real Property without Purchaser's prior written
consent, which consent may be granted or withheld for any reason;
(xxii) without Purchaser's prior written consent, which
may be granted or withheld for any reason, Seller shall not, by
voluntary or intentional act or omission to act, further cause or
create any easement, encumbrance, or mechanic's or materialmen's liens,
and/or similar liens or encumbrances to arise or to be imposed upon the
Property or any portion thereof;
(xxiii) that all information made available to Purchaser
by Seller in accordance with this Agreement is, to Seller's actual
knowledge, true, complete and accurate; and
(xxiv) that Seller has not assigned its rights hereunder
to any other person, firm or entity and no further consent is necessary
or required to make the Assignment of Leases and the Assignment of
Contracts effective.
(b) If Seller learns of anything that would make the representations
and warranties set forth above untrue in any material respect prior to the
Closing, Seller shall immediately notify Purchaser in writing. Upon written
notice to Seller and Title Company within five (5) Business Days following
receipt of Seller's notice, Purchaser shall be entitled to terminate this
Agreement if Purchaser reasonably concludes that the Property will be adversely
affected in any material respect, in which case Purchaser shall be entitled to
an immediate return of the Xxxxxxx Money together with accrued interest thereon.
After such disposition of the Xxxxxxx Money, the Escrow shall be canceled and
neither party shall have any rights or responsibilities to the other except as
otherwise expressly provided by this Agreement.
(c) Each of the parties represents and warrants to the other that each
of the persons executing this Agreement on behalf of the warranting party is
authorized to do so; that the execution, delivery and performance of this
Agreement will not conflict with, or result in a breach or other violation of,
any contract, agreement or instrument to which Purchaser or Seller, as the case
may be, is a party; and that upon execution, this Agreement shall be a valid
obligation of, binding upon and enforceable against Purchaser or Seller, as the
case may be.
(d) The parties hereto make the following representations and
warranties with respect to the Employee Retirement Income Security Act of 1974,
as amended (ERISA):
(i) Seller's ERISA Representations. To the best knowledge of Seller,
Seller is not an affiliate of Xxxxxx Guaranty Trust Company of New York, a
Delaware corporation (Xxxxxx Guaranty), and the consummation of the transactions
contemplated hereby shall constitute a reconfirmation of the truth and accuracy
of the foregoing representation as of the Closing Date. From and after the date
of this Agreement through and including the Closing Date, Seller covenants
promptly to notify Purchaser should Seller reasonably anticipate becoming a
party in interest with respect to any employee benefit plan which Purchaser has
disclosed to Seller pursuant to Section 7(d)(ii) below as having more than ten
percent (10%) interest in the Fund (as defined below), other than solely by
reason of providing services to such plan (including services as a fiduciary) or
by reason of a relationship to a service provider (including a fiduciary)
described in Section 3(14) (F), (G), (H) or (I) of ERISA, or both, and Seller
will take such steps as become necessary to prevent any transaction contemplated
in this Agreement or related documents from being a prohibited transaction for
Purchaser or Seller under ERISA.
(ii) Purchaser's ERISA Representations.
(A) The sole shareholder of Purchaser is the collective investment fund
identified as Xxxxxx Guaranty Trust Company of New York as Trustee under
Declaration of Trust dated December 9, 1960, as amended for the Commingled
Pension Trust Fund (X.X. Xxxxxx Strategic Property Fund) (the Fund), consisting
in whole or in part of assets invested by employee benefit plans, and all funds
which will be used to make the purchase will be assets of such Fund. Xxxxxx
Guaranty is the sole trustee of, and has discretion over, the Fund.
(B) Seller neither exercises nor has any discretionary authority,
control, responsibility or influence with respect to the investment of plan
assets in, or held by, the Fund.
(C) To the best knowledge of Purchaser, there are currently no employee
benefit plans having an interest in the Fund which, alone or together with the
interests of any other employee benefit plans maintained by the same employer or
employee organization in the Fund, exceeds ten percent (10%) of the total of all
assets in such Fund.
(D) From and after the date hereof and through and including the
Closing Date, Purchaser will promptly notify Seller if any employee benefit
plan, in Purchaser's judgment, may have or acquire an interest in the Fund
which, alone or together with the interest of any other employee benefit plans
maintained by the same employer or employee organization in the Fund, exceeds
ten percent (10%) of the total of all assets in such Fund and shall promptly
furnish to Seller a list containing (1) the name of each such plan and (2) an
explanation of whether any portion of such interest in excess of ten percent
(10%) results from an increase in the assets allocated to the Fund by such plan
within the meaning of Section IV(h) of Prohibited Transaction Class Exemption
91-38.
(iii) Definitions. For purposes of subsections (i) and (ii) hereof, the
term "affiliate" shall mean (A) any person directly or indirectly through one or
more intermediaries, controlling, controlled by, or under common control with
the person, (B) any officer, director, employee, relative of, or partner in such
person, and (C) any corporation or partnership of which such person is an
officer, director, partner or employee; the term "control" shall mean the power
to exercise a controlling influence over the management or policies of a person
other than an individual; the term "collective investment fund" shall mean a
common or collective trust fund or pooled investment fund maintained by a bank
or trust company; the term `employee benefit plan" shall have the meaning
ascribed to it in Section 3(3) of ERISA; the term "prohibited transaction" shall
have the meaning ascribed to Revenue Code; and the term "party in interest"
shall have the meaning ascribed to it in Section 3(14) of ERISA and the meaning
ascribed to "disqualified person" in Section 4975(a) of the Internal Revenue
Code; and the term "party in interest" shall have the meaning ascribed to it in
Section 3(14) of ERISA and the meaning ascribed to "disqualified person" in
Section 4975(e)(2) of the Internal Revenue Code.
(e) All representations made in this Agreement by Seller shall survive
the execution and delivery of this Agreement or the cancellation of this
Agreement or Closing, as applicable. Seller shall and does hereby indemnify and
hold Purchaser harmless from and against any loss, damage, liability and
expense, together with all court costs and attorneys' fees which Purchaser may
incur, by reason of any third party claims asserted against Purchaser and based
upon any material misrepresentation by Seller or any material breach of any of
Seller's warranties; provided, however, that Seller's representations and
indemnity obligations under this Section 7 shall survive for three (3) months
after cancellation of this Agreement or Closing, as applicable, whereupon
Seller's obligations shall terminate automatically unless Purchaser shall have
delivered written notice of any asserted misrepresentations and/or breach of
such warranties to Purchaser identifying such misrepresentation(s) and/or
breach(es) with particularity within such three-month period and shall in
addition have commenced an action thereon against Seller in the Court within
four (4) months after cancellation of this Agreement or Closing, as applicable.
Section 8. Purchaser's Acceptance of Property As-Is.
EXCEPT AS OTHERWISE EXPRESSLY PROVIDED HEREIN AND/OR IN THE DOCUMENTS
TO BE DELIVERED AT CLOSING, PURCHASER ACKNOWLEDGES AND AGREES THAT SELLER HAS
NOT MADE, DOES NOT MAKE AND SPECIFICALLY NEGATES AND 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 VALUE,
NATURE, QUALITY OR CONDITION OF THE PROPERTY, INCLUDING WITHOUT LIMITATION THE
WATER, SOIL AND GEOLOGY, AND ANY IMPROVEMENTS CONSTRUCTED THEREON, (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
HABITABILITY, MERCHANTABILITY, MARKETABILITY, PROFITABILITY OR FITNESS FOR A
PARTICULAR PURPOSE OF THE PROPERTY, (E) THE MANNER OR QUALITY OF THE
CONSTRUCTION OR MATERIALS, IF ANY, INCORPORATED INTO THE PROPERTY, OR (F) THE
MANNER, QUALITY, STATE OF REPAIR OR LACK OF REPAIR OF THE PROPERTY. EXCEPT FOR
THOSE ITEMS OF SELLER'S DISCLOSURE DOCUMENTATION THAT HAVE BEEN PREPARED BY
SELLER, PURCHASER FURTHER ACKNOWLEDGES AND AGREES THAT HAVING BEEN GIVEN THE
OPPORTUNITY TO INSPECT THE PROPERTY, PURCHASER IS RELYING SOLELY ON ITS OWN
INVESTIGATION OF THE PROPERTY. PURCHASER FURTHER ACKNOWLEDGES AND AGREES THAT
ANY INFORMATION PROVIDED OR TO BE PROVIDED TO PURCHASER WITH RESPECT TO THE
PROPERTY WAS OBTAINED FROM A VARIETY OF SOURCES AND THAT SELLER HAS NOT MADE ANY
INDEPENDENT INVESTIGATION OR VERIFICATION OF SUCH INFORMATION AND MAKES NO
REPRESENTATIONS AS TO THE ACCURACY OR COMPLETENESS OF SUCH INFORMATION. EXCEPT
AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT, SELLER'S DISCLOSURE
DOCUMENTATION OR IN THE DOCUMENTS TO BE DELIVERED AT CLOSING, SELLER IS NOT AND
SHALL NOT BE LIABLE OR BOUND IN ANY MANNER BY ANY VERBAL OR WRITTEN STATEMENTS,
REPRESENTATIONS OR INFORMATION PERTAINING TO THE PROPERTY, OR THE OPERATION
THEREOF, FURNISHED BY ANY REAL ESTATE BROKER, AGENT, EMPLOYEE, SERVANT OR OTHER
PERSON. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED HEREIN AND/OR IN THE DOCUMENTS TO
BE DELIVERED AT CLOSING, PURCHASER FURTHER ACKNOWLEDGES AND AGREES THAT TO THE
MAXIMUM EXTENT PERMITTED BY LAW, THE SALE OF THE PROPERTY AS PROVIDED FOR HEREIN
IS MADE ON AN "AS IS," "WHERE IS" AND "WITH ALL FAULTS" CONDITION AND BASIS.
Section 9. Seller's Covenants.
From and after the Effective Date until Closing, and so long as this
Agreement remains in effect, Seller shall:
(a) except as otherwise provided in Section 7(a), maintain, manage and
operate the Property in accordance with the established practices of Seller and
its property manager;
(b) maintain the Property in its present condition, ordinary wear and
tear and casualty loss excepted, and not remove any of the Personal Property
from the Real Property except in the ordinary course of Seller's business;
(c) maintain all casualty, liability and hazard insurance currently in
force for the Property;
(d) except as otherwise provided in Section 7(a), operate, manage and
enter into contracts for the Property and maintain present services and
sufficient supplies and equipment for the operation and maintenance of the
Property, all in the same manner as that done by Seller and its property manager
prior to the Effective Date; provided, however, that Seller shall not enter into
any service contract that cannot be terminated within thirty (30) days following
notice to the vendor; and
(e) except as otherwise provided in Section 7(a), not enter into any
Lease of the Real Property and the Improvements other than in the ordinary
course of Seller's business.
If Seller enters into leases or grants concessions in violation of this Section
9, Purchaser may either waive the violation or, as Purchaser's sole remedy,
terminate this Agreement and require the return of the Xxxxxxx Money together
with accrued interest thereon.
Section 10. Prorations.
The following adjustments to the Purchase Price shall be made between
Seller and Purchaser:
(a) The following items, as applicable, shall be prorated between
Purchaser and Seller on a per diem basis as of the Closing Date:
(i) all nondelinquent real estate taxes, installments of
general and special assessments, homeowner's association dues, if any,
and fire protection service charges, if any, due and payable in the
calendar year in which Closing occurs, based upon the most recent
information available to Seller. If Closing shall occur before the tax
rate or assessment for the current year is fixed, the initial proration
of such taxes or assessments shall be based upon the latest available
information. Thereafter, when the actual tax rate for such current year
becomes known, Seller and Purchaser shall, outside of escrow and after
Closing, re-prorate any such taxes or assessments to the extent that
the actual rate thereof was different than the rate used for prorations
made at Closing and shall pay, one to the other, any adjustment due as
a result of such re-proration;
(ii) current rents for the month in which the Closing occurs
as actually paid, advance rentals, nonrefundable deposits and other
charges, if any, payable by Tenants under the Leases; and
(iii) all charges for fuel, water, sewer, electricity and
other utility services furnished to the Property which are not metered
to Tenants. Seller, to the extent the same is obtainable, shall furnish
meter readings for such utilities through the close of business on the
day prior to the Closing. If any such meter readings are not so
obtainable, then Seller shall provide meter readings as of a date not
more than thirty (30) days prior to the Closing Date, and the proration
of utility charges shall initially be based upon such prior reading.
Upon the taking of actual meter readings first after Closing, such
proration shall be readjusted outside of escrow after Closing and
Seller or Purchaser, as the case may be, shall promptly pay to the
other the amount determined to be so due upon such readjustment.
(b) All other items of accrued or prepaid income and expense shall be
prorated as of the Closing Date, on the basis of the most recent ascertainable
amounts of or other reliable information for each item of income and expense.
Seller and Purchaser shall duly cooperate with each other and the Title Company
in making prorations, adjustments and credits pursuant to this Section 10 and
shall, as requested by the Title Company, furnish to the Title Company such
information as is in the possession of or obtainable by them to assist in making
such prorations, adjustments or credits. In the event, for any reason beyond the
reasonable control of the parties hereto, information necessary to calculate any
proration, adjustment or credit for any item required to be prorated, adjusted
or credited under this Section 10 is not available prior to Closing, then such
items shall be prorated, adjusted or credited outside of escrow after Closing as
soon as such information is available, and Seller and Purchaser shall duly
cooperate with each other in regard thereto and shall pay, one to the other, any
amounts which may be owing as a result of any such subsequent proration,
adjustment or credit. In the event, at any time within six (6) months after
Closing, errors shall be discovered in any prorations, adjustments or credits
made pursuant to this Section 10, Seller and Purchaser shall correct such errors
and shall pay, one to the other, any sums owning as a result of such correction.
(c) For purposes of all prorations provided for in this Agreement,
Seller shall be responsible for all days up to the Closing Date, and Purchaser
shall be responsible for all days including and after the Closing Date. Except
as otherwise expressly provided in this Agreement, all prorations shall be
final.
(d) Security deposits, including cleaning and pet deposits, and prepaid
rent and any interest thereon, in the amounts set forth in the Leases (or if not
set forth therein, as set forth on the Rent Roll) shall be credited to Purchaser
at Closing.
(e) If on the Closing Date any Tenant is delinquent in the payment of
rent, including any additional rent billed but unpaid at the time of Closing,
the delinquent rent attributable to the period prior to the Closing shall remain
the property of Seller and be paid to Seller if, as and when collected by
Purchaser out of the funds received by Purchaser from such Tenant, and no
proration of such delinquent rent shall be made at Closing. For a period of one
hundred eighty (180) days after Closing, Purchaser shall use reasonable efforts
to attempt to collect and shall remit to Seller any such delinquent rents owing
to Seller; provided, however, that (i) Purchaser shall be required only to
periodically send bills to the Tenant(s) owing such delinquent rent and shall
not be required to commence any litigation or undertake any other collection
efforts in regard thereto; and (ii) in the event Purchaser collects rent from a
person who owes rent for any period of time after Closing and for a period of
time prior to Closing, all amounts collected from such person shall be applied
first to the amount of rents owing by such person for the period of time after
Closing and retained by Purchaser and only the excess, if any, shall be remitted
to Seller.
(f) Contemporaneously with the Closing, Seller shall deliver to
Purchaser at the offices of Seller's property manager all originals (including
computer discs and tapes) of books and records of accounts, contracts, leases,
leasing correspondence, receipts for deposits, bills and other papers that
pertain to the Property, together with all advertising materials, booklets, keys
and other items, if any, used in the Property's operation, provided that Seller,
at Seller's cost, may retain a copy of the foregoing items for tax reporting
purposes. After the Closing and solely for the purposes of Section 10, Seller,
upon at least five (5) days' prior written request to Purchaser, shall have the
right to inspect the books and records for the Property located at the office of
Purchaser and/or Purchaser's property manager to verify that Purchaser is
remitting to Seller the proper amounts according to this Agreement and for any
other purpose related to Seller's prior ownership of the Property.
(g) The cost of any tenant improvements paid or incurred by Seller for
Leases approved by Purchaser and executed after the date of this Agreement shall
be paid in full by Seller at or before Closing. Seller shall supply to Purchaser
and Title Company paid invoices and final lien waivers for all such tenant
improvement work to the extent performed on or prior to the Closing Date. Any
provision of this Agreement to the contrary notwithstanding, after the Effective
Date, Seller shall not undertake any tenant improvement work on any Unit without
the prior written consent of Purchaser, such consent not to be unreasonably
withheld, conditioned or delayed.
Section 11. Transfer Taxes; Title Charges;
Other Closing Costs and Escrow Cancellation.
(a) Seller and Purchaser agree to execute any real estate transfer
declarations required by the state, county or municipality in which the Real
Property is located. Seller shall pay: (i) one-half of the escrow charges of
Title Company; (ii) one-half of the cost of recording the instruments of
conveyance; and (iii) the portion of the premium charged for the Title Policy
attributable to standard coverage. Purchaser shall pay all other costs of
consummating this transaction, including without limitation the premium for the
Title Policy in excess of standard coverage and for any endorsements required by
Purchaser, all transfer taxes and other fees (if any) assessed by any
governmental authority against the Real Property because of this sale and
transfer, all sales and transfer taxes or other fees assessed by any
governmental authority against the Personal Property (if any) and the cost of
any municipal deed or transfer taxes (if any). The parties shall each pay their
own attorneys' fees in regard to the negotiation and documentation of the
Purchase Transaction.
(b) If the Escrow fails to close because of a Seller's Event of
Default, Seller shall be liable for the cancellation charge, if any, of Title
Company. If the Escrow fails to close because of a Purchaser's Event of Default,
Purchaser shall be liable for the cancellation charge, if any, of Title Company.
If the Escrow fails to close for any other reason, Seller and Purchaser shall
each be liable for one-half of the cancellation charge, if any, of Title
Company.
Section 12. Risk of Loss.
(a) Except as provided in any indemnity provisions of this Agreement,
Seller shall bear all risk of loss for the Property up to the Closing.
(b) The foregoing to the contrary notwithstanding, if the Property is
damaged by fire or other casualty prior to the Closing Date and is insured under
one or more fire or casualty insurance policies maintained by Seller, and if
Seller determines, in Seller's reasonable good faith discretion, that repair of
the Property would cost less than Three Hundred Thousand Dollars ($300,000.00)
(Loss Threshold), Purchaser shall not have the right to terminate this Agreement
and Seller, in Seller's sole discretion, may elect either: (i) to repair and
restore the Property to its condition immediately preceding the fire or
casualty; or (ii) to proceed to close this Purchase Transaction without
reduction in the Purchase Price provided that, as a condition precedent thereto
and in a form acceptable to Purchaser in Purchaser's reasonable discretion,
Seller assigns and transfers to Purchaser on the Closing Date all of Seller's
right, title and interest in and to the insurance proceeds paid or payable to
Seller under the policy or policies covering the damage and pays to Purchaser
the amount of Seller's deductible under the insurance policy or policies.
(c) However, if the Property is damaged by fire or other casualty prior
to the Closing Date and is insured under one or more fire or casualty insurance
policies maintained by Seller, and if Seller determines, in Seller's reasonable
good faith discretion, that the repair of the damage would cost an amount equal
to or in excess of the Loss Threshold, Purchaser, in Purchaser's sole
discretion, may elect either: (i) to terminate this Agreement and have the Title
Company immediately return the Xxxxxxx Money together with accrued interest
thereon to Purchaser; or (ii) to proceed to close this Purchase Transaction,
without reduction in the Purchase Price, and, as a condition precedent thereto
and in a form acceptable to Purchaser in Purchaser's reasonable discretion, have
Seller assign and transfer to Purchaser on the Closing Date all of Seller's
right, title and interest in and to the insurance proceeds paid or payable to
Seller under the policy or policies covering the damage and Seller shall pay to
Purchaser the amount of Seller's deductible under the insurance policy or
policies.
(d) Immediately after Seller obtains notice of any fire or casualty,
Seller shall notify Purchaser thereof in writing, including Seller's reasonable
determination of the repair cost; provided, however, that in the event Purchaser
shall in good faith dispute the repair cost so determined by Seller, Purchaser
shall immediately notify Seller of such dispute, in which event Seller shall as
soon as practicable obtain three (3) bids to repair such damage from reputable
contractors acceptable to Purchaser in Purchaser's reasonable discretion and
licensed in the State of Arizona and furnish copies thereof to Purchaser. The
average of the two bids that are the closest to each other shall be
determinative as to whether the Loss Threshold shall have been exceeded. If the
repair cost so determined exceeds the Loss Threshold, Purchaser shall notify
Seller in writing within fifteen (15) Business Days after Purchaser's receipt of
Seller's notice whether Purchaser elects to terminate this Agreement in
accordance with this Section 12. Closing shall be delayed, if necessary, to
allow Purchaser to make such election. If Purchaser fails to notify Seller of
Purchaser's election within such fifteen-day period, Purchaser shall be deemed
to have elected to terminate this Agreement.
Section 13. Condemnation.
(a) If, between the Effective Date and the Closing Date, any
condemnation or eminent domain proceedings are commenced or threatened that
might result in the taking of all or any material part of the Real Property or
the Improvements or the taking or closing of any access right to the Property,
Purchaser, in Purchaser's sole discretion, may either:
(i) terminate this Agreement by written notice to Seller and
have the Title Company return the Xxxxxxx Money together with accrued
interest thereon; or
(ii) proceed with the Closing and, as a condition precedent
thereto and in a form acceptable to Purchaser, in Purchaser's sole
discretion, have Seller assign to Purchaser all of Seller's right,
title and interest in and to any award made or to be made for the
condemnation or eminent domain action.
(b) Immediately after Seller obtains notice of the commencement or the
threatened commencement of eminent domain or condemnation proceedings, Seller
shall notify Purchaser in writing. Purchaser shall then notify Seller, within
fifteen (15) Business Days after Purchaser's receipt of Seller's notice, whether
Purchaser elects to terminate this Agreement in accordance with Section
13(a)(i). Closing shall be delayed, if necessary, to allow Purchaser to make
such election. If Purchaser fails to make the election within such fifteen-day
period, Purchaser shall be deemed to have elected to terminate this Agreement.
Section 14. Default.
(a) Purchaser shall be in default under this Agreement (a Purchaser's
Event of Default) if any of the following events shall occur:
(i) If Purchaser shall be obligated to close the Escrow
pursuant to the terms of this Agreement and Purchaser fails to pay the Purchase
Price and to close the Escrow on the date scheduled therefor as provided in this
Agreement;
(ii) Purchaser shall fail to pay any monies due in accordance
with this Agreement (other than the obligations referenced in Subparagraph (i))
by 5:00 p.m. MST on the stated due date; or
(iii) Purchaser shall fail to fully and timely perform any of
Purchaser's obligations (other than the monetary obligations referenced in
Subparagraphs (i) and (ii)) arising under this Agreement by 5:00 p.m. MST on the
fifth (5th) Business Day after Purchaser's receipt of written notice from Seller
specifying Purchaser's nonperformance.
(b) Seller shall be in default under this Agreement (a Seller's Event
of Default) if any of the following events shall occur:
(i) If Seller shall be obligated to close the Escrow
pursuant to the terms of this Agreement and Seller fails to close the Escrow on
the date scheduled therefor as provided in this Agreement;
(ii) Seller shall fail to fully and timely perform any of
Seller's obligations arising under this Agreement (other than the obligations
referenced in Subparagraph (i)) and such failure shall continue past 5:00 p.m.
MST on the fifth (5th) Business Day after Seller's receipt of written notice
from Purchaser specifying Seller's nonperformance; or
(iii) any representation of Seller becomes untrue in any
material respect and Seller fails to cure such untruth in accordance with
Section 7(b).
(c) If a Seller's Event of Default shall exist, Purchaser, at
Purchaser's sole option and as Purchaser's sole remedies, may (i) cancel this
Agreement by written notice to Seller and Title Company whereupon the Xxxxxxx
Money plus interest thereon shall be paid immediately by Title Company to
Purchaser and, except as otherwise provided in this Agreement as to any Survival
Item, neither Purchaser nor Seller shall have any further liability or
obligation hereunder; or, (ii) seek specific performance against Seller by
delivering the Purchase Price into the Escrow; provided, however, that as
conditions precedent to such action for specific performance: [a] no uncured
Purchaser's Event of Default shall exist and no event shall have occurred which
with the passage of time or with notice, or both, could become a Purchaser's
Event of Default; and [b] Purchaser shall not seek to amend the Purchase Price
in such action, in which event the Closing shall be automatically extended as
necessary.
(d) If a Purchaser's Event of Default shall exist, as Seller's sole
remedy (in lieu of any other legal or equitable remedies against Purchaser which
Seller expressly waives except as hereinafter provided otherwise) Seller shall
be entitled to retain the Xxxxxxx Money only in accordance with Section 3(b) as
Seller's agreed and total liquidated damages unless Purchaser objects to, fails
to cooperate with or otherwise opposes Seller's withdrawal of such Xxxxxxx Money
out of the Escrow, in which event Seller shall have all of the remedies
otherwise available to Seller at law or in equity.
Section 15. Notices.
All notices under this Agreement shall be in writing and sent by: (a)
certified or registered mail, postage prepaid and return receipt requested, in
which case notice shall be deemed delivered at the earlier of actual receipt or
three (3) Business Days after deposit in the United States Mail, (b) by a
nationally recognized overnight courier, in which case notice shall be deemed
delivered one (1) Business Day after deposit with that courier, or (c) telecopy
or similar means, if a copy of the notice is also sent by United States
certified mail, in which case notice shall be deemed delivered on the date of
confirmed receipt, as follows:
If to Seller:
c/o L'Auberge Communities Inc.
00000 Xxxxx 00xx Xxx, Xxxxx 000
Xxxxxxxxxx, Xxxxxxx 00000
Attention: Xxxxxxx X. Xxxxx
Facsimile No.: (000) 000-0000
With a copy to:
Xxxxxx Xxxxxxx & Xxxx LLP
000 Xxxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000-0000
Attention: Xxxxxx X. Xxxxx, Esq.
Facsimile No.: (000) 000-0000
If to Purchaser:
Tucson Realty Holding Co., Inc.
c/o X.X. Xxxxxx Investment Management, Inc.
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxx
Facsimile No.: (000) 000-0000
With a copy to:
Paul, Hastings, Xxxxxxxx & Xxxxxx LLP
000 Xxxx Xxxxxx Xxxxx, 00xx Xxxxx
Xxxxx Xxxx, Xxxxxxxxxx 00000-0000
Attention: Xxxxx Toll Davidson, Esq.
Facsimile: (000) 000-0000
The addresses above 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 the notice by the addressee thereof. 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.
Section 16. Time of Essence.
Time is of the essence in this Agreement and the performance of each
and every obligation hereunder. However, if this Agreement requires any act to
be done or action to be taken on a date which is a Saturday, Sunday or legal
holiday, such act or action shall be deemed to have been validly done or taken
if done or taken on the next succeeding day which is not a Saturday, Sunday or
legal holiday.
Section 17. Termination of Agreement.
If triplicate fully executed originals of this Agreement have not been
delivered by Purchaser to Seller by 5:00 p.m. MST on January 23, 1998 for
immediate deposit by Purchaser with Title Company along with the Xxxxxxx Money,
this Agreement shall automatically be deemed revoked and null and void.
Section 18. Governing Law; Jurisdiction; Venue.
This Agreement shall be governed by and construed in accordance with
Arizona law. In regard to any litigation which may arise in regard to this
Agreement, the parties shall and do hereby submit to the sole jurisdiction of
and the parties hereby agree that the sole proper venue shall be in the Court.
Section 19. Counterparts and Facsimile Signatures.
(a) This Agreement may be executed in two or more counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
(b) The execution of this Agreement by the parties may be evidenced by
facsimile signatures with originals to be immediately distributed thereafter
albeit the Agreement may be deemed binding upon transmittal of the facsimiles.
Section 20. Captions.
The captions in this Agreement are inserted for convenience of
reference only and in no way define, describe or limit the scope or intent of
this Agreement or any of its provisions.
Section 21. Assignability.
(a) Purchaser shall not have the right to assign this Agreement or any
of Purchaser's rights under this Agreement prior to Closing to any person or
entity without the prior written consent of Seller, which consent may be granted
or withheld in Seller's sole discretion. In the event of such an assignment: (i)
such assignee shall assume Purchaser's duties and obligations under this
Agreement by delivering to Seller and Title Company duplicate originals of an
assumption agreement in form and substance reasonably acceptable to Seller, (ii)
Purchaser shall not be released from any of its obligations under this
Agreement, (iii) Seller shall not incur any additional expense because of such
assignment and (iv) such assignment shall not delay the Closing.
(b) Seller shall not have the right or authority to assign this
Agreement or any of Seller's rights under this Agreement prior to Closing to any
person or entity without the prior written consent of Purchaser, which consent
may be granted or withheld in Purchaser's sole discretion. In the event
Purchaser consents to such an assignment, (i) such consent may be conditioned
upon the assignee's assumption of Seller's duties and obligations under this
Agreement by delivery to Purchaser and Title Company of duplicate originals of
an assumption agreement in form and substance reasonably acceptable to
Purchaser, (ii) Seller shall not be released from any of its obligations under
this Agreement, (iii) Purchaser shall not incur any additional expense because
of such assignment and (iv) such assignment shall not delay the Closing.
Section 22. Binding Effect.
This Agreement shall be binding upon and inure to the benefit of the
parties and their respective legal representatives, successors, heirs and
permitted assigns, subject to the provisions of Section 21 hereof.
Section 23. Modifications; Waiver.
No waiver, modification, amendment, discharge or other change of this
Agreement shall be valid unless it is in writing and signed by the party against
which the enforcement of the modification, waiver, amendment, discharge or other
change is sought.
Section 24. Entire Agreement.
This Agreement and the exhibits attached hereto contain the entire
agreement between the parties relating to the Purchase Transaction. All prior or
contemporaneous letters of intent (including but not limited to that certain
non-binding letter of intent, agreements, understandings, representations or
statements, whether oral or written, with respect to the subject matter hereof
are superseded hereby.
Section 25. Partial Invalidity; Further Assurances.
If any provision of this Agreement shall be determined by any
court to be invalid, illegal or unenforceable to any extent, the remainder of
this Agreement shall not be affected and this Agreement shall be construed as if
the invalid, illegal or unenforceable provision had never been contained in this
Agreement. Prior to and after the Closing, the parties hereto agree to take such
action and execute, acknowledge, file and record any additional documents
reasonably necessary to effectuate the terms and provisions of this Agreement.
Section 26. Survival.
Except as expressly provided in this Agreement to the contrary, all
representations, warranties, covenants, agreements and other obligations of
Seller and Purchaser in this Agreement shall not survive the Closing of the
Purchase Transaction.
Section 27. No Third-Party Rights.
Nothing in this Agreement, express or implied, is intended to confer
upon any person, other than the parties to this Agreement and their respective
successors and permitted assigns, any rights or remedies.
Section 28. Attorneys' Fees.
If any legal action or any other proceeding, including without
limitation an action for declaratory relief, is brought to enforce this
Agreement or any rights or obligations hereunder or because of a dispute,
breach, default or misrepresentation in connection with this Agreement, the
prevailing party shall be entitled to recover its reasonable attorneys' fees and
other costs incurred in that action or proceeding (including without limitation
any appeal or post-judgment enforcement proceedings), in addition to any other
relief to which that party may be entitled. "Prevailing party" shall include the
party determined to be the prevailing party by the Court.
Section 29. Broker.
Seller and Purchaser each represent and warrant to the other that it
has not had any dealings with any broker, finder or other party concerning
Purchaser's purchase of the Property, except Amercon Realty Services, Inc.
(Seller's Broker). Seller agrees to pay at Closing a commission to Seller's
Broker pursuant to a separate agreement between Seller and Seller's Broker, a
copy of which shall be deposited in escrow on or before Closing if Seller's
Broker is to be paid through escrow at Closing. Seller and Purchaser each agree
to defend, indemnify and hold the other harmless from and against any such all
loss, liability, damage, cost or expense, including without limitation
reasonable attorneys' fees, incurred by the other as a result of any claim
arising out of the acts of the indemnifying party, or others on that party's
behalf, for a commission, finder's fee or similar compensation made by any
broker (including Seller's Broker), finder or any person who claims to have
dealt with the indemnifying party. The representations, warranties and covenants
contained in this Section 29 shall survive the Closing or termination of this
Agreement.
Section 30. Opening of Escrow.
The term "Opening of Escrow" shall mean the date of delivery to Title
Company of triplicate fully executed originals of this Agreement by Seller and
Purchaser together with the delivery by Purchaser to Title Company of the
Xxxxxxx Money.
Section 31. Exhibits.
The following exhibits have been attached to this Agreement and
incorporated herein by reference:
Exhibit A -- Legal Description
Exhibit B -- Diagram of the Property and Improvements Exhibit C --
Schedule of Personal Property Exhibit D -- Form of Special Warranty
Deed Exhibit E -- Form of Xxxx of Sale Exhibit F -- Form of Assignment
of Leases Exhibit G -- Assignment of Tradename and Trademark Rights
Exhibit H -- Form of Assignment of Intangible Property Exhibit I --
Form of Tenant Letters Exhibit J -- Certificate of Rent Roll Exhibit K
-- Form of Non-Foreign Affidavit Exhibit L -- Form of Affidavit of
Value
Section 32. Form of Title Policy.
The Title Policy to be issued by Title Company shall be Title Company's
most current form unless otherwise requested by Purchaser. A specimen of the
Title Policy is to be delivered to Purchaser within ten (10) days following the
delivery of the Preliminary Report to the parties. The Policy may include, among
other things, the following endorsements which are also to be delivered to
Purchaser at Purchaser's cost: (i) a survey endorsement to the effect that the
insured legal description and the legal description in the Survey describe one
and the same property; (ii) if necessary, a patent endorsement; (iii) if
necessary, an endorsement insuring against archaic deed restrictions; and (iv)
if necessary, the owner's equivalent of an Arizona 3R and 5 endorsement.
Section 33. No Partnership or Other Liability.
Any and all provisions, implications, or interpretations of or from
this Agreement to the contrary notwithstanding, no partnership, joint venture or
other relationship is created, implied or acknowledged between or among the
parties.
Section 34. General Provisions Regarding Title Company.
(a) Title Company will make all adjustments and/or prorations on the
basis of the actual number of days in a month, and by credit and/or debit to the
respective accounts of Seller and Purchaser in the Escrow.
(b) For purposes of the instructions to Title Company, the expression
"Closing" shall mean the date on which the Deed is recorded.
(c) Title Company shall: (i) make disbursements by wire transfer of
federal funds; (ii) mail instruments to the addresses of the parties shown
above, unless Title Company is instructed otherwise; and (iii) wire funds to
Seller by wire transfer as directed by Seller.
(d) No change of instructions shall be of any effect on Title Company
unless given in writing by all of the parties hereto. In the event conflicting
demands are made or conflicting notices served upon Title Company with respect
to the Escrow, the parties expressly agree that Title Company shall have the
absolute right at Title Company's election to do either or both of the
following: (i) withhold and stop all further proceedings in, and performance of,
the Escrow; or (ii) file a suit in interpleader and obtain an order from the
Court requiring the parties to interplead and litigate in the Court their
several claims and rights among themselves. In the event such interpleader suit
is brought, Title Company shall ipso facto be fully released and discharged from
all obligations to further perform any and all duties or obligations imposed
upon Title Company in the Escrow, and the parties jointly and severally agree to
pay all reasonable costs, expenses and reasonable attorneys' fees expended or
incurred by Title Company, the amount thereof to be fixed and a judgment
therefor entered by the Court in such suit.
(e) Except for Title Company's negligence, fraud, willful misconduct or
breach of contract, Title Company shall not be held liable for the identity,
authority or rights of any person executing any document deposited in the
Escrow, or for failure by Seller or Purchaser to comply with any of the
provisions of any agreement, contract or other instrument deposited in the
Escrow, and Title Company's duties hereunder shall be limited to the safekeeping
of such money, instruments or other documents received by Title Company as
escrow holder and to the disposition of same in accordance with the written
instructions accepted by Title Company in the Escrow.
(f) It is agreed by the parties to this Agreement that so far as Title
Company's rights and liabilities are concerned, this transaction is an escrow
and not any other legal relation.
Section 35. Conditions to Seller's Performance.
Notwithstanding anything contained herein to the contrary, the
obligations of Seller hereunder are subject to and conditioned upon the
satisfaction (or waiver in writing by Seller) of the following conditions:
(a) The procurement of the consent of a majority in interest of the
limited partners of Seller to the Purchase Transaction. Seller shall use
diligent efforts to obtain such consent. If Seller shall not have received such
consent within sixty (60) days after the Opening of Escrow and provided evidence
thereof to Purchaser, Purchaser may upon written notice to Seller terminate this
Agreement whereupon the Xxxxxxx Money plus interest thereon and (provided that
Purchaser shall have elected to purchase the Property at or prior to the
expiration of the Due Diligence Period) reimbursement of Purchaser's reasonable
out-of-pocket expenses actually paid to third parties in connection with
Purchaser's due diligence investigation and documented to Seller's reasonable
satisfaction (such reimbursement, however, in no event to exceed Fifteen
Thousand Dollars ($15,000.00) in the aggregate) shall be paid immediately by
Title Company to Purchaser, and except as otherwise provided in this Agreement
as to any Survival Item, neither Purchaser nor Seller shall have any further
liability or obligation hereunder.
(b) The lapse or other extinguishment of the rights of first refusal in
favor of the joint venture partners of Seller contained in that certain Joint
Venture Agreement of Canyon View Joint Venture dated December 30, 1985, and in
that Joint Venture Agreement of Canyon View East dated December 14, 1987. Unless
such rights of first refusal shall have lapsed or otherwise been extinguished
and Purchaser shall have been furnished with evidence of such lapse or other
extinguishment within thirty (30) days after the Opening of Escrow, Purchaser
may upon written notice to Seller terminate this Agreement whereupon the Xxxxxxx
Money plus interest thereon and (provided that Purchaser shall have elected to
purchase the Property at or prior to the expiration of the Due Diligence Period)
reimbursement of Purchaser's reasonable out-of-pocket expenses actually paid to
third parties in connection with Purchaser's due diligence investigation and
documented to Seller's reasonable satisfaction (such reimbursement, however, in
no event to exceed Fifteen Thousand Dollars ($15,000.00) in the aggregate) shall
be paid immediately by Title Company to Purchaser, and except as otherwise
provided in this Agreement as to any Survival Item, neither Purchaser nor Seller
shall have any further liability or obligation hereunder.
(c) In no event shall Purchaser be reimbursed under both of Setions
35(a) and 35(b).
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
Effective Date.
"PURCHASER"
TUCSON REALTY HOLDING CO., INC.,
a Delaware corporation
By: /s/ Xxxxx X. Faxon__________________
Name: Xxxxx X. Xxxxx
Title: Vice President
[Signatures continued.]
"SELLER"
CANYON VIEW JOINT VENTURE,
an Arizona joint venture partnership
By: Development Partners
(A Massachusetts Limited Partnership),
a Massachusetts limited partnership,
Managing Venturer
By: GP L'Auberge Communities, L.P.,
a California limited partnership,
General Partner
By: L'Auberge Communities Inc.,
a California corporation
General Partner
By: /s/ Xxxxxxx X. Boyle_____________
Name: Xxxxxxx X. Xxxxx
Title: President
CANYON VIEW EAST JOINT VENTURE,
an Arizona joint venture partnership
By: Development Partners II
(A Massachusetts Limited Partnership),
a Massachusetts limited partnership,
Managing Venturer
By: GP L'Auberge Communities, L.P.,
a California limited partnership,
General Partner
By: L'Auberge Communities Inc.,
a California corporation
its general partner
By: /s/ Xxxxxxx X. Boyle_____________
Name: Xxxxxxx X. Xxxxx
Title: President
TITLE COMPANY'S ACCEPTANCE
The foregoing fully executed Agreement together with the Xxxxxxx Money
is accepted by the undersigned this 23rd day of February, 1998, which for the
purposes of this Agreement shall be deemed to be the date of "Opening of
Escrow".
CHICAGO TITLE INSURANCE COMPANY,
a Delaware corporation
By: /s/ Xxxxx Covert_____________
Name: Xxxxx Xxxxxx
Its: Escrow Officer
