AGREEMENT OF SALE
THIS AGREEMENT, entered into as of the 23rd day of April, 1996, by and
between ERP OPERATING LIMITED PARTNERSHIP, an Illinois limited partnership
("Purchaser") and COUNTRY RIDGE ASSOCIATES, an Illinois limited partnership
("Seller").
WITNESSETH:
1. PURCHASE AND SALE. Purchaser agrees to purchase and Seller agrees to sell
at the price of Fifteen Million Nine Hundred Fifty Thousand and No/100 Dollars
($15,950,000.00), that certain property ("Property") in Farmington Hills,
Michigan, more particularly described on Exhibit A attached hereto, which
Property is known as Country Ridge Apartments and contains 252 units and
approximately 22.47 acres. Included in the "Purchase Price" (as hereinafter
defined) is all of Seller's right, title and interest in the personal property
set forth on Exhibit B, which shall be transferred to Purchaser at "Closing"
(as hereinafter defined) by a Bill of Sale; and all right, title and interest
of Seller (whether now or hereafter existing) in and to any land lying in the
bed of any street, alley, road or avenue (whether open, closed or proposed)
within, in front of, behind or otherwise adjoining the Property or any of it;
and all right, title and interest of Seller (whether now or hereafter existing)
in and to any award made or to be made as a result of or in lieu of
condemnation, and in and to any award for damage to the Property or any part
thereof by reason of casualty (all of the foregoing being included within the
term "Property"); and all of the building, structures, fixtures, facilities,
installations and all of Seller's right, title and interest in other
improvements of every kind and description now or hereafter in, on, over and
under the land, including, without limitation, any and all recreational
buildings, structures and facilities, plumbing, air conditioning, heating,
ventilating, mechanical, electrical and other utility systems, parking lots,
landscaping, sidewalks, swimming pools, signs and light fixtures which are not
owned by tenants under leases (all of the foregoing being included within the
term "Property"); and all of Seller's right, title and interest in all of the
following which are in Seller's possession: existing surveys, blue prints,
drawings, plans and specifications (including, without limitation, structural,
HVAC, mechanical and plumbing, water and sewer plans and specifications); all
available tenant lists and data, correspondence with present and prospective
tenants, vendors, suppliers, utility companies and other third parties,
booklets, manuals and promotional and advertising materials concerning the
Property or any part thereof (all of the foregoing being included within the
term "Property"); and all right, title and interest of Seller in and to the
intangible personal property now or hereafter owned by Seller and used in
connection with or arising from the business now or hereafter conducted on or
from the Property or any part thereof, including, without limitation, claims,
choses in action, lease and other contract rights, names and telephone exchange
numbers (all of the foregoing being included within the term "Property"). The
computer software located at the Property is not included in the conveyance to
Purchaser.
2. PURCHASE PRICE. The purchase price (the "Purchase Price") shall be paid
as follows:
A. Upon the execution of this Agreement, the sum of $300,000.00
("Earnest Money") to be held in escrow by the Escrow Agent (as that term is
defined in the "Escrow Agreement" [as hereinafter defined]) by and in
accordance with the provisions of the Escrow Agreement ("Escrow Agreement")
attached hereto as Exhibit C;
B. If Purchaser advises Seller during the "Approval Period" (as
hereinafter defined) that Purchaser intends to assume the loan encumbering the
Property (the "Loan") as provided for in Section 8 hereof, then on May 23,
1996, the additional sum of $200,000 to be held in escrow by the Escrow Agent
by and in accordance with the provisions of the Escrow Agreement (in such
event, said $200,000 when deposited together with the aforesaid $300,000 shall
be referred to herein together as the "Earnest Money");
C. If Purchaser assumes the Loan as provided for in Paragraph 8 hereof,
the assumption by Purchaser of the obligations of Seller, as borrower, under
the "Loan Documents" (as hereinafter defined); and
D. On the "Closing Date" (as hereinafter defined), the balance of the
Purchase Price (i.e., $15,950,000.00 less the outstanding principal amount of
the Loan if the Loan is assumed by Purchaser as provided for in Paragraph 8
hereof) adjusted in accordance with the prorations by federally wired
"immediately available" funds delivered to the "Title Insurer" (as hereinafter
defined) no later than 12:00 Noon on the Closing Date. If the funds are not
received by 12:00 Noon, then, on the Closing Date, Purchaser shall pay Seller
an amount equal to any additional mortgage per diem interest costs incurred by
the Seller.
3. TITLE COMMITMENT AND SURVEY.
A. At Purchaser's request, Seller has ordered a title commitment (the
"Title Commitment") for an ALTA Owner's Policy of Title Insurance ("Title
Policy") issued by a title company chosen by Purchaser (the "Title Insurer")
along with copies of all of the underlying Schedule B documents. Seller will
deliver the Title Commitment and copies of the underlying Schedule B documents
to Purchaser promptly following their receipt by Seller. During the Approval
Period Purchaser shall have the right to review the status of title of the
Property (including, determining what endorsements, if any, the Title Insurer
will make available to Purchaser). If, prior to the expiration of the Approval
Period, Purchaser notifies Seller that Purchaser objects to the status of
title, then Seller shall have five (5) business days thereafter to elect to (i)
terminate this Agreement, in which case the Earnest Money, including interest
thereon, shall be returned to Purchaser immediately following Seller's receipt
of the "Reports" (as hereinafter defined) or (ii) agree to cure the title
objections identified by Purchaser, which cure may be effectuated by causing
the Title Insurer, at Seller's expense, to insure over any title objection, if
applicable. If this Agreement has not been theretofore terminated, then
promptly following the Approval Period, Purchaser and Seller will identify the
exceptions to title which have been agreed to by Purchaser and Seller. Said
exceptions to title are hereinafter referred to as the "Permitted Exceptions".
On the Closing Date, Seller shall cause the Title Insurer to issue the Title
Policy or a "marked up" commitment in conformity with the Title Commitment
subject only to Permitted Exceptions or "Unpermitted Exceptions" (as
hereinafter defined) which have been waived by Purchaser. If the Title Policy
or marked-up commitment delivered at Closing discloses exceptions to title
other than Permitted Exceptions, then Purchaser may terminate this Agreement
and obtain a return of its Earnest Money, including interest thereon.
Purchaser shall pay the costs of the Title Policy and all endorsements, other
than endorsements obtained by Seller to insure over a title defect noted by
Purchaser.
B. Purchaser acknowledges receipt of a survey ("Survey") of the Property
dated June 6, 1986 prepared by Sieber-Keast & Associates. Seller has ordered
an updated Survey ("Updated Survey"). Purchaser shall have ten (10) days from
the date of receipt of the Updated Survey to approve the Updated Survey. If
Purchaser disapproves the Updated Survey because it contains matters which are
not acceptable to Purchaser ("Survey Defects"), then upon notice delivered to
Seller by Purchaser within ten (10) days from the date of receipt of the
Updated Survey, Seller shall have five (5) days to either: (i) cause the Survey
Defects to be removed from the Updated Survey or (ii) cause the title Insurer
to insure against loss or damage resulting from the Survey Defects ("Title
Indemnity"). If Seller is unwilling to do either (i) or (ii) above, then
Purchaser shall have the right to elect to terminate this Agreement. Purchaser
shall notify Seller of its election within five (5) days after receipt of
notice from Seller that the Survey Defects will not be removed or that the
Title Insurer will not issue the Title Indemnity. If Purchaser fails to make
the election within the aforesaid five (5) days, then it shall be conclusively
presumed that Purchaser has elected to take title to the Property subject to
the Survey Defects. If Purchaser elects to terminate this Agreement pursuant
to this Paragraph, then the Earnest Money plus all accrued interest shall be
delivered to Purchaser immediately following Seller's receipt of the Reports.
4. CONDITION OF TITLE/CONVEYANCE. Seller agrees to convey fee simple title
to the Property by Special Warranty Deed in the form of Exhibit D attached
hereto (the "Deed") in recordable form subject only to the Permitted
Exceptions. If Seller is unable to convey title to the Property subject only
to the Permitted Exceptions because of the existence of an additional title
exception ("Unpermitted Exception"), then Purchaser can elect to take title to
the Property subject to the Unpermitted Exception or terminate this Agreement.
Notwithstanding the aforesaid, Seller shall be required to remove all
Unpermitted Exceptions which are liens of a definite or ascertainable amount.
If Purchaser elects to terminate this Agreement, then the Earnest Money plus
all accrued interest shall be delivered to the Purchaser.
5. PAYMENT OF CLOSING COSTS. Purchaser pays the costs of the documentary
stamps (if any) to be paid with reference to the Deed and all other stamps,
intangible, documentary, recording, sales tax and surtax imposed by law with
reference to any other documents delivered in connection with this Agreement.
Purchaser shall also pay for all costs of the Title Commitment, Title Policy,
Updated Survey (subject to the last sentence of this paragraph), escrow charges
and all other charges of the Title Insurer in connection with this transaction.
If Purchaser does not assume the Loan as provided for in Paragraph 8 hereof,
Purchaser shall pay any fees and charges incurred by Seller pursuant to the
Loan Documents in connection with paying off the Loan and causing the release
of the Loan Documents, including, without limitation, any applicable prepayment
fees and charges. If Purchaser assumes the Loan as provided for in Paragraph 8
hereof, Purchaser agrees to pay for any fees and charges required by the lender
in connection with such assumption. Purchaser and Seller shall be responsible
for the costs of their respective attorneys. Notwithstanding the foregoing to
the contrary, if Purchaser elects to terminate this Agreement and as a
consequence of such termination Purchaser is entitled to receive the Earnest
Money, including interest thereon, following Seller's receipt of the Reports,
then so long as Purchaser delivers the Reports to Seller, Seller shall be
responsible to pay for the Updated Survey.
6. DAMAGE, CASUALTY AND CONDEMNATION.
A. If the Property suffers damage as a result of any casualty prior to
the Closing Date and can be repaired or restored in the case of real property
for $160,000.00 or less, or in the case of Personal Property, for $25,000.00 or
less, as determined by Seller in good faith, then Seller shall either repair
such damage prior to Closing or, at Purchaser's option (which shall be
exercised by Purchaser within ten (10) days after notice of such casualty),
allow Purchaser a credit against the Purchase Price in an amount equal to the
reasonably estimated cost of repair. Seller shall retain all insurance
proceeds. If the cost of repair or restoration exceeds the aforesaid amounts
(as determined by Seller in good faith), then Purchaser can, upon notice to
Seller within ten (10) days after notice of such casualty, elect to either: (a)
cause Seller to repair and restore same, in which event the Closing Date will
be extended until such date as may reasonably be required to complete the
repair or restoration; or (b) terminate this Agreement upon notice to Seller
served within ten (10) days of notice of such casualty or (c) accept the
Property in its damaged condition together with an assignment from Seller of
all insurance proceeds and receive a credit at Closing in the amount of the
deductible.
B. If condemnation proceedings ("Proceedings") have been instituted
against the Property and such Proceedings are in an amount less than $100,000,
then Purchaser shall take the Property subject to the Proceedings and an
assignment of Seller's interest in the Proceedings. If the Proceedings are in
excess of $100,000.00, then Purchaser can elect to either take the Property
subject to the Proceedings and an assignment of Seller's interest in the
Proceedings or terminate this Agreement. If Purchaser elects to terminate this
Agreement, it shall be by notice to the Seller within five (5) days after
Seller notifies Purchaser of the Proceedings.
C. If the Agreement is terminated pursuant to this Paragraph, then the
Earnest Money plus all accrued interest shall be delivered to the Purchaser.
7. AS-IS CONDITION.
A. Except as may hereinafter be specifically set forth in this
Agreement, Purchaser is not relying on Seller having made any inquiry as to the
condition of the Property or the leases. Purchaser acknowledges and agrees
that, except as may hereinafter be specifically set forth in this Agreement, it
will be purchasing the Property based solely upon its inspection and
investigations of the Property and that Purchaser will be purchasing the
Property "AS IS" and "WITH ALL FAULTS" based upon the condition of the Property
as of the date of this Agreement, subject to reasonable wear and tear and loss
by fire or other casualty or condemnation from the date of this Agreement until
the Closing Date. Without limiting the foregoing, Purchaser acknowledges that,
except as may otherwise be specifically set forth elsewhere in this Agreement,
neither Seller nor its consultants, brokers or agents have made any other
representations or warranties of any kind upon which Purchaser is relying as to
any matters concerning the Property, including, but not limited to, the
condition of the land or any improvements, the existence or nonexistence of
asbestos, lead in water, lead in paint, radon, underground or above ground
storage tanks, petroleum, toxic waste or any "Hazardous Materials" or
"Hazardous Substances" (as such terms are defined below), the tenants of the
Property or the leases affecting the Property, economic projections or market
studies concerning the Property, any development rights, taxes, bonds,
covenants, conditions and restrictions affecting the Property, water or water
rights, topography, drainage, soil, subsoil of the Property, the utilities
serving the Property or any zoning, environmental or building laws, rules or
regulations affecting the Property. Seller makes no representation that the
Property complies with Title III of the Americans With Disabilities Act and,
except as may hereinafter be specifically set forth in this Agreement, Seller
makes no representation that the Property complies with any fire codes or
building codes. Purchaser hereby releases Seller from any and all liability in
connection with any claims which Purchaser may have against Seller, and
Purchaser hereby agrees not to assert any claims, for damage, loss,
compensation, contribution, cost recovery or otherwise, against Seller, whether
in tort, contract, or otherwise, relating directly or indirectly to the
existence of asbestos or Hazardous Materials or Hazardous Substances on, or
environmental conditions of, the Property, or arising under the "Environmental
Laws" (as such term is hereinafter defined), or relating in any way to the
quality of the indoor or outdoor environment at the Property. This release
shall survive the Closing. As used herein, the term "Hazardous Materials" or
"Hazardous Substances" means (i) hazardous wastes, hazardous materials,
hazardous substances, hazardous constituents, toxic substances or related
materials, whether solids, liquids or gases, including but not limited to
substances defined as "hazardous wastes," "hazardous materials," "hazardous
substances," "toxic substances," "pollutants," "contaminants," "radioactive
materials," or other similar designations in, or otherwise subject to
regulation under, the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended ("CERCLA"), 42 U.S.C. Section 9601 et seq.;
the Toxic Substance Control Act ("TSCA"), 15 U.S.C. Section 2601 et seq.; the
Hazardous Materials Transportation Act, 49 U.S.C. Section 1802; the Resource
Conservation and Recovery Act ("RCRA"), 42 U.S.C. Section 9601, et seq.; the
Clean Water Act ("CWA"), 33 U.S.C. Section 1251 et seq.; the Safe Drinking
Water Act, 42 U.S.C. Section 300f et seq.; the Clean Air Act ("CAA"), 42 U.S.C.
Section 7401 et seq.; and in any permits, licenses, approvals, plans, rules,
regulations or ordinances adopted, or other criteria and guidelines promulgated
pursuant to the preceding laws or other similar federal, state or local laws,
regulations, rules or ordinance now or hereafter in effect relating to
environmental matters (collectively the "Environmental Laws"); and (ii) any
other substances, constituents or wastes subject to any applicable federal,
state or local law, regulation or ordinance, including any Environmental Law,
now or hereafter in effect, including but not limited to (A) petroleum, (B)
refined petroleum products, (C) waste oil, (D) waste aviation or motor vehicle
fuel, (E) asbestos, (F) lead in water, paint or elsewhere, (G) radon, (H)
Polychlorinated Biphenyls (PCB's) and (I) ureaformaldehyde.
B. Seller has provided to Purchaser certain unaudited historical
financial information regarding the Property relating to certain periods of
time in which Seller owned the Property. Seller and Purchaser hereby
acknowledge that such information has been provided to Purchaser at Purchaser's
request solely as illustrative material. Except as may hereinafter be
specifically set forth in this Agreement, Seller makes no representation or
warranty that such material is complete or accurate or that Purchaser will
achieve similar financial or other results with respect to the operations of
the Property, it being acknowledged by Purchaser that Seller's operation of the
Property and allocations of revenues or expenses may be vastly different than
Purchaser may be able to attain. Purchaser acknowledges that it is a
sophisticated and experienced purchaser of real estate and further that
Purchaser has relied upon its own investigation and inquiry with respect to the
operation of the Property and releases Seller from any liability with respect
to such historical information.
8. ASSUMPTION OF LOAN. Purchaser has advised Seller that Purchaser is
considering assuming the Loan (subject to the non-recourse provisions thereof)
and all of the documents evidencing or securing the Loan (the "Loan
Documents"). Although Seller agrees to cooperate in good faith with Purchaser
in connection with Purchaser's potential assumption of the Loan and the Loan
Documents, Purchaser acknowledges and agrees that Purchaser's assumption of the
Loan and the Loan Documents is not a condition precedent to Purchaser's
obligations hereunder. Any such assumption of the Loan by Purchaser shall
contain a complete release of Seller for all liability under the Loan and the
Loan Documents; provided, however, if the lender under the Loan will not
provide such a release, then Purchaser shall provide, and Seller will accept in
lieu of such a release, an indemnification by Purchaser of Seller for all
liability under the Loan and the Loan Documents arising after the Closing Date.
Purchaser further acknowledges and agrees that Seller will be requesting from
the lender the amount necessary to payoff the Loan on the Closing Date. Seller
agrees to make such request at least thirty (30) days prior to the Closing
Date. Purchaser will advise Seller, in writing, whether or not Purchaser
intends to assume the Loan prior to the last day of the Approval Period.
Purchaser shall be deemed to have elected not to assume the Loan if Purchaser
fails to so advise Seller or on the last day of the Approval Period.
9. CLOSING. The closing ("Closing") of this transaction shall be on the
first day at least fifteen (15) days following the last day of the Approval
Period on which the Lender will allow the Seller to pay off the Loan ("Closing
Date"), at the office of the Seller's attorney, at which time Seller shall
deliver possession of the Property to Purchaser. Notwithstanding the
foregoing, if on or before the last day of the Approval Period, Purchaser
notifies Seller in writing that Purchaser intends to assume the Loan as
provided for in paragraph 8 hereof, the Closing Date shall be extended to the
earlier to occur of: (A) July 19, 1996, or (B) the date which is five (5)
business days after the date on which Purchaser and Seller shall have received
all documents evidencing the consent of the Lender to the assumption of the
Loan by the Purchaser.
10. CLOSING DOCUMENTS.
A. On the Closing Date, Purchaser shall deliver to Seller an executed
closing statement, the balance of the Purchase Price, and such other documents
as may be reasonably required in order to consummate the transaction as set
forth in this Agreement.
b. On the Closing Date, Seller shall deliver to Purchaser possession of
the Property; the Deed subject to the Permitted Exceptions and those
Unpermitted Exceptions waived by Purchaser; a UCC search from appropriate
jurisdictions reflecting no liens against Seller, or a termination statement as
to any lien secured by a UCC filing; an inventory of the Personal Property and
a Bill of Sale for the same (in the form of Exhibit E attached hereto); an
executed closing statement; an executed assignment and assumption of all
service contracts (in the form of Exhibit F attached hereto); an executed
assignment and assumption of all leases and security deposits (in the form of
Exhibit G attached hereto); updated rent roll; a notice to the tenants of the
transfer of title and the assumption by Purchaser of the landlord's obligations
under the leases and the obligation to refund the security deposits (in the
form of Exhibit H attached hereto), the original leases to be delivered to
Purchaser at the Property; a non-foreign affidavit (in the form of Exhibit I
attached hereto) and such other documents as may be reasonably required by the
Title Insurer in order to consummate the transaction as set forth in this
Agreement and shall cause the Title Company to deliver the Title Policy subject
only to Permitted Exceptions and Unpermitted Exceptions waived by Purchaser.
11. DEFAULT BY PURCHASER. ALL EARNEST MONEY DEPOSITED INTO THE ESCROW IS TO
SECURE THE TIMELY PERFORMANCE BY PURCHASER OF ITS OBLIGATIONS AND UNDERTAKINGS
UNDER THIS AGREEMENT. IN THE EVENT THIS TRANSACTION FAILS TO CLOSE DUE TO THE
DEFAULT OF THE PURCHASER UNDER THE PROVISIONS OF THIS AGREEMENT, SELLER SHALL
RETAIN ALL OF THE EARNEST MONEY AND THE INTEREST THEREON AS SELLER'S SOLE RIGHT
TO DAMAGES OR ANY OTHER REMEDY. THE PARTIES HAVE AGREED THAT SELLER'S ACTUAL
DAMAGES, IN THE EVENT OF A DEFAULT BY PURCHASER, WOULD BE EXTREMELY DIFFICULT
OR IMPRACTICAL TO DETERMINE. THEREFORE, BY PLACING THEIR INITIALS BELOW, THE
PARTIES ACKNOWLEDGE THAT THE EARNEST MONEY HAS BEEN AGREED UPON, AFTER
NEGOTIATION, AS THE PARTIES' REASONABLE ESTIMATE OF SELLER'S DAMAGES.
12. SELLER'S DEFAULT. IF THIS SALE IS NOT COMPLETED BECAUSE OF SELLER'S
DEFAULT, PURCHASER'S SOLE REMEDY SHALL BE ACTUAL DAMAGES NOT TO EXCEED THE
AMOUNT OF THE EARNEST MONEY THEN ON DEPOSIT WITH THE ESCROW AGENT, PLUS THE
RETURN OF ALL EARNEST MONEY TOGETHER WITH ANY INTEREST ACCRUED THEREON, AND
THIS AGREEMENT SHALL TERMINATE AND THE PARTIES SHALL HAVE NO FURTHER LIABILITY
TO EACH OTHER AT LAW OR IN EQUITY. NOTWITHSTANDING ANYTHING CONTAINED HEREIN
TO THE CONTRARY, IF SELLER'S DEFAULT IS ITS REFUSAL TO DELIVER THE DEED, THEN
PURCHASER WILL BE ENTITLED TO SUE FOR SPECIFIC PERFORMANCE.
13.
A. PRORATIONS. Rents for the month of the Closing (exclusive of
delinquent rents, but including prepaid rents); any previously paid signing
bonus or similar payment relating to any laundry room, cable, telephone or
similar agreement in effect as of the Closing, refundable security deposits
with interest if required by local law (which will be assigned to and assumed
by Purchaser and credited to Purchaser at Closing); refundable and
non-refundable pet and cleaning fees and deposits, water and other utility
charges; fuels; prepaid operating expenses; real and personal property taxes
(as provided for in the next following sentence); and other similar items shall
be adjusted ratably as of 12:01 A.M. on the Closing Date ("Proration Date"),
and credited or debited to the balance of the cash due at Closing. Real
property taxes shall be prorated based on the following information in the
following circumstances: (i) if the current tax bill is available, real
property taxes shall be prorated based on that tax bill; (ii) if the tax bill
for the current tax year is not available and the assessed valuation for the
Property for the current tax year is not available, real property taxes shall
be prorated based on 106% of the most recently available tax bill; and (iii) if
the tax bill for the current tax bill is not available but the assessed
valuation for the Property for the current tax year is available, real property
taxes shall be prorated based on 104% of the tax rate for the prior tax year
multiplied by the equalization factor for the prior tax year, if applicable,
multiplied by the current assessed valuation for the Property. In addition,
if Purchaser assumes the Loan as provided for in Paragraph 8, interest accruing
under the Loan Documents shall be prorated and Seller shall receive as a credit
from Purchaser the amount of any escrow and reserve accounts relating to the
loan (including, without limitation, debt service escrow accounts, tax escrow
accounts, replacement reserves, repair reserves and insurance escrow accounts).
Finally, whether or not Purchaser has elected to assume the Loan, Purchaser
shall receive as a credit at Closing any amounts, if any, then owing by the
Seller to the lender which are unrelated to the payoff of the Loan, the
assumption of the Loan by the Purchaser or the release of Seller under the
Loan. If the amount of any of the items to be prorated is not then
ascertainable, the adjustment thereof shall be on the basis of the most recent
ascertainable data. All prorations will be final except as to Delinquent Rents
referred to in 13B below, and errors in calculation on the closing statement.
If special assessments have been levied against the Property for completed
improvements, then the amount of any installments which are due prior to the
Closing Date shall be paid by the Seller; and the amount of installments which
are due after the Closing Date shall be paid by the Purchaser. All assessments
for incomplete improvements shall be paid by Purchaser.
B. DELINQUENT RENTS. If, as of the Closing Date, any rent is in arrears
("Delinquent Rent") for thirty (30) days or less, then the first rent collected
by Purchaser will be delivered to Seller for the Delinquent Rent. If
Delinquent Rent is in arrears for more than thirty (30) days, then rents
collected by Purchaser shall first be applied to current rent and then to
Delinquent Rent. Purchaser shall deliver Seller's pro rata share within 10
days of Purchaser's receipt of that Delinquent Rent. Within 120 days after the
Closing Date, Purchaser shall deliver to Seller a reconciliation statement of
rents collected by Purchaser through the first 90 days after the Closing Date.
Seller retains the right to conduct an audit, at reasonable times and upon
reasonable notice, of Purchaser's books and records to verify the accuracy of
the reconciliation statement and if such audit discloses that additional funds
are owing , then the party owing such funds shall promptly pay such sums to the
party so owed. This subparagraph of this Agreement shall survive the Closing
and the delivery and recording of the Deed.
14. RECORDING. This Agreement shall not be recorded and the act of recording
by Purchaser shall be an act of default hereunder by Purchaser and shall be
subject to the provisions of Paragraph 11.
15. ASSIGNMENT. The Purchaser shall not have the right to assign its interest
in this Agreement without the prior written consent of the Seller, except to an
entity directly or indirectly controlled by Purchaser. Any non-permitted
assignment or transfer of, or attempt to assign or transfer, Purchaser's
interest in this Agreement shall be an act of default hereunder by Purchaser
and subject to the provisions of Paragraph 11. Seller hereby consents to an
assignment to an entity which is an affiliate of Purchaser, provided Purchaser
notifies Seller of the assignment at least five (5) business days prior to the
Closing Date.
16. BROKER. The parties hereto hereby each represent and warrant to the
other that neither has retained the services of a broker in connection with
this transaction. Purchaser agrees to indemnify, defend and hold harmless the
Seller and any partner, affiliate, parent of Seller, and all shareholders,
employees, officers and directors of Seller or Seller's partner, parent or
affiliate (each of the above is individually referred to as a "Seller
Indemnitee") from all claims, including attorneys' fees and costs incurred by a
Seller Indemnitee as a result of anyone's claiming by or through Purchaser any
fee, commission or compensation on account of this Agreement, its negotiation
or the sale hereby contemplated. Seller agrees to indemnify, defend and hold
harmless the Purchaser and any partner, affiliate, parent of Purchaser and all
shareholders, employees, officers and directors of Purchaser or Purchaser's
parent or affiliate (each of the above is individually referred to as a
"Purchaser Indemnitee") from all claims, including attorneys' fees and costs
incurred by a Purchaser Indemnitee as a result of anyone's claiming by or
through Seller any fee, commission or compensation on account of this
Agreement, its negotiation or the sale hereby contemplated.
17. DOCUMENTS, INSPECTION OF PROPERTY AND APPROVAL PERIOD.
A. Seller has delivered to Purchaser copies of the most recent available
tax bills, rent rolls, insurance premiums, service contracts, utility account
numbers, year-end 1995 and year-to-date 1996 operating statements (collectively
the "Documents"). All of the Documents shall be subject to approval by
Purchaser by the close of business (5:00 P.M. Central Daylight Time) on May 22,
1996 ("Approval Period"). During the Approval Period, upon reasonable notice
to the Seller, the Purchaser shall have the right to inspect and approve the
condition of the Property including the interior of the apartments, during
normal business hours. Purchaser shall maintain public liability insurance
policies insuring against claims arising as a result of the inspections of the
Property being conducted by Purchaser. Purchaser agrees to indemnify, defend,
protect and hold Seller harmless from any and all loss, costs, including
attorneys' fees, liability or damages which Seller may incur or suffer as a
result of Purchaser's conducting its inspection and investigation of the
Property including the entry of Purchaser, its employees or agents and its
lender onto the Property, including without limitation, liability for
mechanics' lien claims.
B. Purchaser agrees to defend and hold Seller harmless from any
injuries, damages or claims of any nature whatsoever which Purchaser's
servants, agents or employees may have as a result of Purchaser's inspection of
the Property. Purchaser further agrees to restore any damage to the Property
which may arise as a result of Purchaser's inspection of the Property.
C. If Purchaser disapproves the Documents or the condition of the
Property, in its sole and absolute discretion, it must be by a notice ("Notice
of Disapproval") delivered to Seller and the Escrow Agent prior to the
expiration of the Approval Period. The Notice of Disapproval delivered to
Seller shall be accompanied by copies of all third-party reports ("Reports")
which Purchaser has received during the Approval Period. Upon receipt of the
Notice of Disapproval and copies of the Reports, the Earnest Money plus the
interest accrued thereon shall be returned to the Purchaser. If Purchaser does
not timely deliver a Notice of Disapproval and copies of the Reports to Seller,
then it shall be conclusively presumed that Purchaser has approved the
Documents and the condition of the Property and all Earnest Money plus the
interest accrued thereon shall belong to Seller unless Seller is in default
hereunder. In addition, in such event, if Purchaser has advised Seller that
Purchaser has elected to assume the Loan, then on May 23, 1996, Purchaser shall
deposit with the Escrow Agent the additional $200,000 of Earnest Money required
to be deposited by Paragraph 2B of this Agreement. If Purchaser fails to so
deposit said $200,000 with the Escrow Agent, Purchaser shall be in default
hereunder.
18. SURVIVAL OF INDEMNITY. Notwithstanding anything in this Agreement to the
contrary, the parties' obligations to indemnify, defend and hold each other
harmless under various provisions of this Agreement shall forever survive the
termination of this Agreement or the Closing and delivery and recording of the
Deed.
19. SELLER'S REPRESENTATIONS, WARRANTIES AND COVENANTS.
A. Any reference herein to Seller's knowledge, representation, warranty
or notice of any matter or thing, shall only mean such knowledge or notice that
has actually been received by Al Lieberman and Phillip Schechter, and any
representation or warranty of the Seller is based upon those matters of which
Al Lieberman and Phillip Schechter have actual knowledge. A copy of this
Paragraph 19 shall be delivered to the resident manager of the Property within
two (2) days after the execution by Seller of this Agreement, with a request to
advise Al Lieberman within five (5) business days after receipt by the resident
manager as to the accuracy and truthfulness of the representations and
warranties. Al Lieberman shall notify Purchaser as to the response of the
resident manager by May 1, 1996 if the resident manager indicated that any of
the representations or warranties were incorrect. If Mr. Lieberman fails to so
notify Purchaser, Purchaser shall be entitled to conclude that the resident
manager reviewed the representations and warranties and that they are correct.
Any knowledge or notice given, had or received by any of Seller's agents,
servants or employees shall not be imputed to Seller or the individual partners
or the general partner of Seller.
B. Subject to the limitations set forth in subparagraph "A" above,
Seller hereby makes the following representations and warranties, all of which
are made to the Seller's knowledge. The parties agree that the representations
contained herein shall survive Closing for a period of 120 days (i.e. the
claiming party shall have no right to make any claims against the other party
for a breach of a representation or warranty after the expiration of 120 days
immediately following Closing.)
(1) Except as set forth on Exhibit J attached hereto, the present
use and occupancy of the Property conform with applicable building and zoning
laws and Seller has received no written notice that any such laws, rules or
regulations are being violated.
(2) The rent roll attached hereto as Exhibit K and which shall be
updated as of the Closing Date is true and accurate. No tenant under any lease
has any option or right of first refusal to acquire any ownership interest in
the Property or any right to terminate its lease or is entitled to any rebate
or concession except as set forth in its lease or on Exhibit K.
(3) Except as set forth on Exhibit J attached hereto, Seller has no
knowledge of any pending or threatened litigation, claim, cause of action or
administrative proceeding concerning the Property.
(4) Attached hereto as Exhibit L are copies of all licenses and
permits which are in Seller's possession and all service contracts affecting
the Property (none of which is in default), except for the management agreement
which shall be terminated as of the Closing Date; and Seller shall not enter
into any new service contracts which cannot be terminated within 30 days
written notice or modify or extend any existing service contracts without the
prior consent of Purchaser which consent shall not be unreasonably withheld or
delayed.
(5) Seller has not received any written notice from any tenant
occupying the Property that Seller is in default under that tenant's lease.
(6) Except as set forth on Exhibit J attached hereto, Seller has not
received from any governmental authority, any written notice of zoning,
building, fire, health code or other violations with respect to the Property,
or any part thereof, that will not have been corrected prior to Closing solely
at Seller's expense.
(7) Seller is duly organized, validly existing, qualified and
empowered to conduct its business, and has full power and authority to perform
and comply with the terms of this Agreement. Neither the execution and
delivery of this Agreement nor its performance will conflict with or result in
the breach of Seller's partnership agreement or any contract or agreement to
which Seller is a party or by which Seller is bound.
(8) This Agreement is valid and enforceable against Seller in
accordance with its terms and each instrument to be executed by Seller pursuant
to this Agreement or in connection herewith will, when executed and delivered,
be valid and enforceable against Seller in accordance with its terms.
(9) Seller has not received written notice from any governmental
authority alleging that the Property presently contains Hazardous Materials or
Hazardous Substances.
(10) As of the Closing Date, no leasing commissions will be due
subsequent to the Closing Date.
(11) None of the on-site employees is employed by the Seller.
(12) Through the Closing Date, Seller shall continue to operate,
manage and maintain the Property in the same manner as prior to the execution
of this Agreement.
(13) Seller shall not extend or otherwise renew any lease without the
prior written consent of Purchaser, except for any renewal or other extension
of a lease providing for a monthly rental of not less than the monthly rental
being presently charged for a similar apartment and for a period of time not to
exceed twelve (12) months.
(14) Seller agrees not to distribute the net proceeds of the Purchase
Price up to a maximum amount of $500,000 to its partners for one hundred
twenty (120) days after the Closing Date.
(15) Exhibit B attached hereto is a list of all the personal property
owned by Seller and used in the operation of the Property. The computer
software used at the Property will not be transferred to the Purchaser.
(16) The unaudited operating statements heretofore or hereafter
delivered to Purchaser by Seller are and shall be true, complete and correct in
all material respects.
(17) Seller has previously delivered to Purchaser a true, correct and
complete copy of the material Loan Documents. Furthermore, except as disclosed
by Seller to Purchaser, Seller has not received notice from the lender that the
Loan is in default. Seller has not entered into any written modifications of
the Loan since January 1, 1996 which have not been delivered to Purchaser.
C. For the period commencing with the execution of this Agreement, and
expiring at the earlier of a termination of this Agreement or the Closing Date,
Seller will not offer the Property for sale to any other third party.
D. Seller shall furnish to Purchaser unaudited operating statements,
rent rolls and a leasing status report on a monthly basis.
E. Upon at least two (2) days' prior notice, Purchaser shall have the
right, during normal business hours, to visit the Property and the interiors of
the apartments.
F. Seller shall not apply security deposits towards delinquent rent
except for (i) those tenants who have vacated their apartments or (ii) tenants
who are in arrears for rent for more than thirty (30) days and Seller has
commenced the process of evicting the tenant.
G. Seller hereby agrees to remake the aforesaid representations and
warranties at Closing. If at any time after the execution of this Agreement,
Seller becomes aware of information which makes a representation or warranty
contained in this Agreement to become untrue in any material respect, Seller
shall promptly disclose said information to Purchaser. Provided the
representation or warranty was true when made and further provided that Seller
did not take any deliberate actions to cause the representation or warranty in
question to become untrue in any material respect, Seller shall not be in
default under this Agreement and the sole remedy of Purchaser shall be to
terminate this Agreement. Notwithstanding anything contained herein to the
contrary, if the status of any of the tenancies changes from the date of the
rent roll attached hereto and the date of the rent roll delivered at Closing,
provided the change in status is not caused by a breach of Seller's covenants
contained herein, then Purchaser shall not have the right to terminate this
Agreement or make any claim for a breach of a representation or warranty
hereunder involving the rent roll or tenancies thereunder. Purchaser and
Seller are prohibited from making any claims against the other party hereto
after the Closing with respect to any breaches of the other party's
representations and warranties contained in this Agreement that the claiming
party had actual knowledge of prior to Closing.
20. PURCHASER'S REPRESENTATIONS AND WARRANTIES. Purchaser hereby represents
and warrants to Seller that Purchaser has the full right, power and authority
to execute this Agreement and consummate the transactions contemplated herein.
21. ENVIRONMENTAL REPORT. Attached to this Agreement as Exhibit M is the
following report (the "Report") of the Property, which Seller is delivering to
Purchaser, at Purchaser's request: Phase I Environmental Site Assessment
prepared by Environmental Management Group dated April 11, 1996. Seller makes
no representation or warranty that the Report is accurate or complete.
Purchaser hereby releases Seller from any liability whatsoever with respect to
the Report or, including, without limitation, the matters set forth in the
Report, the accuracy and/or completeness of the Report.
22. LIMITATION OF SELLER'S LIABILITY. No general or limited partner of
Seller, nor any of its respective beneficiaries, shareholders, partners,
officers, agents, employees, heirs, successors or assigns shall have any
personal liability of any kind or nature for or by reason of any matter or
thing whatsoever under, in connection with, arising out of or in any way
related to this Agreement and the transactions contemplated herein, and
Purchaser hereby waives for itself and anyone who may claim by, through or
under Purchaser any and all rights to sue or recover on account of any such
alleged personal liability. Notwithstanding the foregoing to the contrary, for
any claims against Seller following Closing, if Seller fails to retain the net
proceeds of the Purchase Price up to a maximum amount of $500,000 (the "Cap")
for 120 days after the Closing Date, then the general partner of Seller shall
be liable for actual damages sustained by Purchaser as a result of Seller's
breach of a representation or warranty contained in Paragraph 19 of this
Agreement in an amount not to exceed the Cap. The foregoing Cap on liability
for a claim against the Seller following Closing shall not apply, and Seller's
general partner shall be liable, if Seller has entered into leases at the
Property for more than one year in breach of the representation identified in
Paragraph 19(B)(ii) hereof and Purchaser makes a claim against Seller for a
breach of said representation within 120 days immediately following Closing.
23. ORGANIZATIONAL DOCUMENTS.
A. On or before the Closing Date, Purchaser will provide Seller's
attorney with copies of its organizational documents, including a certified
copy of its recorded certificate of limited partnership and a true copy of its
Partnership Agreement or a certified copy of its Articles of Incorporation,
corporate resolutions authorizing the transaction, and an incumbency
certificate, whichever is applicable.
B. On or before the Closing Date, Seller will deliver copies of its
partnership agreement and appropriate certificates of authority to the
Purchaser.
24. TIME OF ESSENCE. Time is of the essence of this Agreement.
25. NOTICES. Any notice or demand which either party hereto is required or
may desire to give or deliver to or make upon the other party shall be in
writing and may be personally delivered or given or made by overnight courier
such as Federal Express or by facsimile or made by United States registered or
certified mail addressed as follows:
TO SELLER: c/o The Balcor Company
2355 Waukegan Road
Suite A200
Bannockburn, Illinois 60015
Attn: Ilona Adams
with copies to: The Balcor Company
2355 Waukegan Road
Suite A200
Bannockburn, Illinois 60015
Attn: Al Lieberman
708/267-1600
708/317-4462 (FAX)
and
Daniel J. Perlman, Esq.
Katten Muchin & Zavis
Suite 2100
525 W. Monroe Street
Chicago, Illinois 60661
312/902-5532
312/222-1061 (FAX)
TO PURCHASER: Alan George
c/o Equity Residential Properties Trust
Two North Riverside Plaza
Suite 450
Chicago, Illinois 60606-2639
312/466-3932
312/454-9678 (FAX)
with a copy to: Bruce Strohm
c/o Equity Residential Properties Trust
Two North Riverside Plaza
Suite 450
Chicago, Illinois 60606-2639
312/466-3624
312/454-0434 (FAX)
subject to the right of either party to designate a different address for
itself by notice similarly given. Any notice or demand so given shall be
deemed to be delivered or made on the next business day if sent by overnight
courier, or on the same day if sent by facsimile before the close of business,
or the next day if sent by facsimile after the close of business, or on the 4th
business day after the same is deposited in the United States Mail as
registered or certified matter, addressed as above provided, with postage
thereon fully prepaid. Any such notice, demand or document not given,
delivered or made by registered or certified mail or by overnight courier or by
facsimile as aforesaid shall be deemed to be given, delivered or made upon
receipt of the same by the party to whom the same is to be given, delivered or
made. Copies of all notices shall be served upon the Escrow Agent.
26. EXECUTION OF AGREEMENT AND ESCROW AGREEMENT. Purchaser will execute three
(3) copies of this Agreement and three (3) copies of the Escrow Agreement and
forward them to Seller for execution. Seller will forward one (1) copy of the
executed Agreement to Purchaser and will forward the following to the Escrow
Agent:
A. One (1) fully executed copy of this Agreement, and
B. Three (3) copies of the Escrow Agreement signed by the parties with a
direction to execute two (2) copies of the Escrow Agreement and deliver a fully
executed copy to the Purchaser and the Seller. Purchaser shall deposit the
initial $300,000 of Earnest Money immediately following receipt by Purchaser of
a fully executed Purchase Agreement and Escrow Agreement.
27. GOVERNING LAW. The provision contained herein with reference to retention
of the Earnest Money in the event of Purchaser's default shall be governed by
the laws of the State of Illinois. The remaining provisions of this Agreement
shall be governed by the laws of the State of Michigan.
28. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement between
the parties and supersedes all other negotiations, understandings and
representations made by and between the parties and the agents, servants and
employees.
29. COUNTERPARTS. This Agreement may be executed in multiple counterparts,
each of which shall be deemed an original but all of which shall constitute one
and the same instrument.
30. CAPTIONS. Paragraph titles or captions contained herein are inserted as a
matter of convenience and for reference, and in no way define, limit, extend or
describe the scope of this Agreement or any provision hereof.
31. FINANCIAL STATEMENTS. Seller acknowledges that audited financial
statements pertaining to the Property for one prior calendar year of operation
and the portion of the calendar year in which the Closing occurs up to the
Closing Date are required to be filed by the Purchaser with the Securities and
Exchange Commission after the Closing. Accordingly, Seller agrees that for a
period of six (6) months after the Closing Date it shall provide Purchaser and
its representatives with access to Seller's books and records after the Closing
upon reasonable advance notice in order to conduct the required audit, which
shall be done at Purchaser's cost and expense.
IN WITNESS WHEREOF, the parties hereto have put their hand and seal as of the
date set forth above.
Executed by Purchaser on PURCHASER:
April 23, 1996.
ERP OPERATING LIMITED PARTNERSHIP, an Illinois
limited partnership
By: Equity Residential Properties Trust, a
Maryland real estate investment trust
By: /s/B C Strohm
------------------------------------
Name: Bruce C. Strohm
----------------------------------
Title: EVP
---------------------------------
Executed by Seller on SELLER:
April 23, 1996.
COUNTRY RIDGE ASSOCIATES, an Illinois limited
partnership
By: Balcor Partners-XVIII, an Illinois general
partnership, its general partner
By: The Balcor Company, a Delaware
corporation, a general partner
By: /s/Alan Lieberman
---------------------------------
Name: Alan Lieberman
Its: Senior Vice President
EXHIBITS
A - Legal
B - Personal Property
C - Escrow Agreement
D - Deed
E - Bill of Sale
F - Assignment of Service Contracts
G - Assignment of Leases and Security Deposits
H - Notice to Tenants
I - Non-Foreign Affidavit
J - Compliance with Laws and Notice of Litigation
K - Rent Roll
L - Licenses, Permits and Service Contracts
M - Environmental Report