March 23, 1995
Securities and Exchange Commission
450 Fifth Street, N.W.
Judiciary Plaza
Washington, D.C. 20549
Re: Carlyle Real Estate Limited Partnership - X
Commission File No. 0-9726
Form 8-K
Gentlemen:
Transmitted, for the above-captioned registrant, is the electronically filed
executed copy of registrant's current report on Form 8-K dated March 23, 1995.
Thank you.
Very truly yours,
CARLYLE REAL ESTATE LIMITED PARTNERSHIP - X
By: JMB Realty Corporation
Corporate General Partner
By: C. SCOTT NELSON
________________________________
C. Scott Nelson, Vice President
Accounting Officer
CSN:jo
Enclosures
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): November 29, 1994
CARLYLE REAL ESTATE LIMITED PARTNERSHIP - X
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(Exact name of registrant as specified in its charter)
Illinois 0-9726 36-3057941
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(State or other) (Commission (IRS Employer
Jurisdiction of File Number) Identification No.)
Organization
900 N. Michigan Avenue, Chicago, Illinois 60611-1575
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(Address of principal executive office)
Registrant's telephone number, including area code: (312) 915-1987
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SILVERMINE APARTMENTS
VICTORIA, TEXAS
-------------------------
ITEM 5. OTHER EVENTS. On November 29, 1994, Victoria Apartments Partnership
(the "Venture"), a joint venture between Carlyle Real Estate Limited
Partnership-X (the "Partnership") and an unaffiliated venture partner, sold,
through DMC-Silvermine Apartments an affiliate of the unaffiliated venture
partner, the Silvermine Apartments located in Victoria, Texas. Occupancy at
the Silvermine Apartments was approximately 98% at the date of sale.
The sale price of the Silvermine Apartments was $5,750,000 (before
selling costs and prorations) and was paid in cash at closing. The existing
mortgage note on the property with an outstanding principal balance of
approximately $3,825,000 was retired out of sale proceeds. The Partnership
received its share of net proceeds of approximately $1,148,000 upon closing.
The Victoria Apartments Partnership Agreement generally provides that the
proceeds (net after selling costs) from the sale of the property shall be
distributed as follows: first, the Partnership shall receive a $1,148,000
preferential return; next, the venture partner shall receive up to $850,000.
Remaining proceeds shall be distributed 50% to the Partnership and 50% to the
venture partner. The Partnership has recognized a gain of approximately
$1,700,000 for financial reporting purposes and approximately $3,700,000 for
tax reporting purposes in 1994.
The Partnership Agreement provides that the General Partners shall
receive 15% of sale or refinancing proceeds (net after expenses and related
working capital) and the Limited Partners shall receive 85%. However, the
distributions of the General Partners are subject to the Limited Partners'
receipt of (i) an amount from sale or refinancing proceeds equal to the
Limited Partners' capital investment in the Partnership, and (ii) cumulative
cash distributions from net cash receipts (plus any cumulative distributions
of sale or refinancing proceeds in excess of the Limited Partners' capital
investment) equal to a 6% annual return on their average capital investment
(capital investment reduced by sale or refinancing proceeds previously
distributed) for each year beginning with the third fiscal quarter of 1981.
The Limited Partners have not yet received cash distributions equal to their
investment plus a 6% annual return on such investment. Therefore, no portion
of the proceeds of this sale will be distributed to the General Partners at
this time.
ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS.
(a) Financial Statements. Not applicable.
(b) Pro Forma Financial Information. Not applicable.
(c) Exhibits.
10.1. Agreement for Purchase and Sale of Real Estate and
Related Property, dated October 13, 1994, by and
between DMC-Silvermine Apartments Limited ("Seller")
and TGM Realty Corp. #3 ("Purchaser") is filed
herewith.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the Registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
CARLYLE REAL ESTATE LIMITED PARTNERSHIP - X
By: JMB Realty Corporation
Corporate General Partner
By: C. SCOTT NELSON
-----------------------------------
C. Scott Nelson, Vice President
Accounting Officer
Dated: March 23, 1995
[SILVERMINE APARTMENTS]
AGREEMENT FOR PURCHASE AND SALE
OF REAL ESTATE AND RELATED PROPERTY
THIS AGREEMENT FOR PURCHASE AND SALE OF REAL ESTATE AND RELATED
PROPERTY ("Agreement") is made and entered into as of the ______ day of
October, 1994, by and between DMC-SILVERMINE APARTMENTS LIMITED, a Texas
limited partnership ("Seller"), and TGM REALTY CORP. #3, a Delaware
corporation ("Purchaser").
RECITALS
A. Seller holds title to an apartment complex located in
Victoria, Texas and commonly known as "Silvermine Apartments."
B. Seller has previously made available to Purchaser (or will
make available concurrently with the execution of this Agreement) the
following items (collectively called the "Information Package") in
connection with the Silvermine Apartments: (i) copies of all service
contracts currently in effect ("Service Contracts"), (ii) copies of real
estate tax bills for the years 1992 and 1993, and 1994, if available,
(iii) copies of any warranties and permits currently in effect and in the
possession of Seller ("Permits and Warranties"), (iv) income and expense
statements for the years 1992 and 1993, and for the first eight (8)
months of 1994, (v) copies of the plans and specifications for the
Improvements (as defined below) in the possession of Seller ("Plans"),
(vi) current rent roll with respect to all tenants occupying space in the
Improvements ("Rent Roll"), (vii) copy of any environmental report in the
possession of Seller ("Existing Environmental Report"), and (vii) copy of
the existing survey ("Existing Survey").
C. Seller desires to sell, and Purchaser desires to acquire, the
Silvermine Apartments and certain related property on an "AS IS, WHERE
IS" basis, without any conditions, representations or warranties of any
kind, except as specifically and expressly set forth in this Agreement.
NOW, THEREFORE, in consideration of and in reliance upon the above
Recitals (which are incorporated in and made a part of this Agreement),
and the mutual covenants, promises and undertakings set forth in this
Agreement, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Seller and Purchaser agree
as follows:
AGREEMENTS
1. PURCHASE AND SALE OF PROPERTY.
A. Seller agrees to sell and convey and Purchaser agrees to
purchase and accept the following described property (all of which is
hereinafter collectively referred to as the "Property"):
1. Certain land ("Land") located in Victoria, Texas, and more
specifically described in Exhibit A attached hereto and made a part
hereof, together with all easements, tenements, hereditaments and
appurtenances pertaining thereto and all of Seller's right, title
and interest in all strips and gores within or bounding the Land.
2. The buildings, improvements and fixtures now situated on
the Land (collectively, the "Improvements").
3. All of Seller's right, title and interest in personal
property, machinery, apparatus, and equipment situated on the Land
or the Improvements ("Personal Property"). An inventory of the
Personal Property is listed on Exhibit B, attached hereto and made
a part hereof. The Personal Property specifically excludes any
computers owned by Seller or the Property Manager (as hereinafter
defined) and any personal property owned by tenants under the
Leases (as hereinafter defined). The Personal Property to be
conveyed is subject to depletions, replacements and additions in
the ordinary course of the operation, repair and maintenance of the
Land and Improvements.
4. All of Seller's right, title and interest in and to all of
the following, whether now or hereafter affecting the Improvements
or any part thereof: occupancy leases ("Leases"), Service
Contracts, Plans, Permits and Warranties, the right (if any) to use
the name "Silvermine Apartments", and copies of any existing books,
records, documents and intangible property (other than accounts,
accounts receivable and computer programs) desired by Purchaser
pertaining to the operation, maintenance, repair and leasing of the
Property in the possession of Seller and located at the Premises.
The Land and Improvements are sometimes together referred to herein as
the "Premises."
B. Except as set forth in Section 11 hereof and except for the
express representations and warranties of Seller set forth in Section 8.A
of this Agreement, the Property is being sold in an "AS IS-WHERE IS"
condition and with "ALL FAULTS" as of the date of this Agreement. Except
as specifically and expressly set forth in this Agreement, no promises,
representations or warranties have been made or are made and no
responsibility has been or is assumed by Seller or by any partner,
officer, director, shareholder, beneficiary, affiliate, person, firm,
agent or representative acting or purporting to act on behalf of Seller
as to (i) the condition or state of repair or utility of the Property,
(ii) the value, expense of operation or income potential thereof, or
(iii) as to any other fact or condition which has or could affect the
Property or the condition, repair, value, expense of operation or income
potential of the Property or any portion thereof, including, without
limitation, with respect to any environmental matters which could affect
the Property. The parties acknowledge and agree that the intent of this
Agreement is that Purchaser shall have until the expiration of the
Inspection Period (as hereinafter defined) to examine and approve or
disapprove the Information Package and additional matters not reflected
in the Information Package to its own satisfaction, including, without
limitation, the environmental condition of the Property, and compliance
with the Americans with Disabilities Act. Except as specifically and
expressly set forth in this Agreement, Seller shall have no liability for
the accuracy of any matters, facts or data reflected in the Information
Package. The parties acknowledge and agree that all understandings and
agreements heretofore made between them or their respective agents or
representatives regarding the purchase and sale of the Property are
merged into this Agreement and the Exhibits made a part hereof, which
alone fully and completely express their agreement with respect to the
subject matter of this Agreement and that neither party is relying upon
any statement, promise or representation by the other unless such
statement, promise or representation is specifically and expressly set
forth in this Agreement or the Exhibits made a part hereof.
C. Without in any way limiting Section 2.B above, Purchaser
expressly waives any rights or remedies it may have under the Deceptive
Trade Practices - Consumer Protection Act of the State of Texas in
accordance with the provisions of Section 17.42(a)(3) thereof. In
connection therewith, Purchaser represents to Seller that Purchaser has
knowledge and experience in business matters enabling it to evaluate the
merits and risks of the purchase of the Property, that this Agreement was
negotiated at arms-length, and that Purchaser was not in a significantly
disparate bargaining position. This provision shall expressly survive
Closing or the earlier termination of this Agreement.
2. PURCHASE PRICE.
The purchase price ("Purchase Price") which Seller agrees to accept
and Purchaser agrees to pay for the Property is FIVE MILLION SEVEN
HUNDRED FIFTY THOUSAND DOLLARS ($5,750,000) U.S., payment of which is to
be made as follows:
A. Upon execution of this Agreement by Purchaser, Purchaser
shall make an earnest money deposit of TWO HUNDRED THOUSAND DOLLARS
($200,000) U.S. ("Deposit"). The Deposit shall be held in escrow by
American Title Company, as agent for Chicago Title Insurance Company
(sometimes called the "Deposit Escrowee" or the "Title Company") in an
interest bearing account pursuant to the terms of a joint order escrow
agreement in the form of Exhibit C attached hereto and made a part hereof
("Deposit Escrow Agreement"). Any interest earned on the Deposit shall
be considered part of the Deposit. Except as otherwise specifically
provided in this Agreement, the Deposit shall be paid to Seller and
applied to the Purchase Price at Closing (as hereinafter defined).
B. At Closing, Purchaser shall pay to the Deposit Escrowee an
amount equal to the Purchase Price, less the Deposit and plus or minus
prorations as provided herein, via wire transfer in immediately available
U.S. funds ("Cash Balance") as follows:
Southwest Bank of Texas
P.O. Box 27459
Houston, Texas 77227-7459
ABA #113011258
Account: 007-284-2
For American Title Company GF # 311186-J
Please notify Kim Sobieski or Mary Rosenberg
(713) 965-9777
Purchaser and Seller shall cause Title Company to disburse the Cash
Balance to Seller upon the recording of the Deed (as hereinafter
defined). In connection with such disbursement, Purchaser and Seller
agree to execute any mutually acceptable closing instructions to Title
Company.
3. PRIOR TO CLOSING.
During the period from the date of Seller's execution of this
Agreement until Closing or the earlier termination of this Agreement,
Seller shall:
A. Except as otherwise provided in this Agreement, operate the
Property through its on-site property manager ("Property Manager"), in
accordance with good business practices and, through the Property
Manager, keep the Property in its existing condition and state of repair,
ordinary wear and tear and loss due to fire or other casualty excepted,
subject to Section 11 below.
B. Neither enter nor permit the Property Manager to enter into
any new Lease (or extensions, modifications or renewals of existing
Leases) without the prior written consent of Purchaser, which shall not
be unreasonably withheld, denied or delayed, except Seller or the
Property Manager may offer (and/or enter into) new Leases (or extensions,
modifications or renewals of existing Leases) (without the consent of
Purchaser) in the ordinary course of business and in accordance with
Seller's customary tenant qualification requirements, provided that such
Leases (or extensions, modifications or renewals of existing Leases)
provide for monthly rent equal to the fair market rent therefor and for a
term of not more than one (1) year. With respect to any new Lease (or
extensions, modifications or renewals of existing Leases) for which the
consent of Purchaser is required hereunder, unless a reasonable basis for
refusing to give such consent is communicated to Seller within two (2)
business days after a request therefor is made by Seller, such consent
shall be deemed to have been given by Purchaser. Seller shall pay all
costs in connection with new Leases (or extensions, modifications or
renewals of existing Leases) entered into by Seller pursuant to this
Section 3.B (including leasing commissions, tenant improvement costs,
cash work allowances, moving costs and other tenant incentives);
provided, however, Seller shall pay only those tenant improvements costs
(including, without limitation, costs in connection with the cleaning and
preparation of vacated apartment units) incurred by Seller prior to
Closing in accordance with Seller's standard maintenance and operating
procedures. Notwithstanding anything herein to the contrary, Seller
shall pay leasing commissions in connection with new Leases only to the
extent (i) such Leases are executed prior to Closing, and (ii) the
tenants thereunder take possession of the subject portion of the Premises
within forty-five (45) days after the date of Closing.
C. Neither enter nor permit the Property Manager to enter into
any new Service Contract or extend, renew or modify or amend any existing
Service Contract, except those that are cancelable on not more than 30
days' written notice without penalty.
D. Keep the Improvements insured against fire or other hazards
covered by extended coverage endorsement and comprehensive public
liability insurance against claims for bodily injury, death and property
damage occurring in, on or about the Premises, on terms no less favorable
than currently existing.
E. Not sell, mortgage, pledge, hypothecate or otherwise transfer
or dispose of all or any part of the Property or any interest therein,
except that Seller may enter into new Leases or extensions of existing
Leases pursuant to Section 3.B above, and except for depletions and
replacements of Personal Property in the ordinary course of the
operation, repair and maintenance of the Land and Improvements and except
as a result of the exercise of a condemnation (but subject to Section 11
hereof).
F. Promptly give written notice to Purchaser upon obtaining
knowledge of the occurrence of any event which affects the truth or
accuracy of any representations or warranties made by Seller in this
Agreement.
G. Subject to the terms of Section 4 below, afford Purchaser and
its representatives full access to the Premises and to Seller's books,
records and files relating to the Property, at reasonable times,
including but not limited to the date of Closing.
H. Not apply any tenant's security deposit to the discharge of
such tenant's obligations unless such tenant has vacated such tenant's
demised premises.
I. Advise Purchaser within five (5) business days of Seller's
receipt of written notice of the existence of any litigation or
governmental proceeding affecting the Premises to which Seller becomes a
party, but in any event prior to the Closing. It shall be a condition
precedent to Purchaser's obligation to accept title to the Premises, that
there shall be no such litigation or proceeding pending at Closing which
has a potential adverse effect upon the Premises or Seller's ability to
convey the Premises to Purchaser.
J. Not permit any alteration, structural modification or
additions to the Premises without the consent of Purchaser, other than in
the nature of routine maintenance or emergency repairs.
K. Not create (or agree to create) any exception to title or
covenant, restriction, easement or other lien on the Premises without the
consent of Purchaser.
L. At Purchaser's election, terminate, effective immediately
prior to the Closing, all employees of Seller, if any, employed at or in
connection with the Premises as designated by Purchaser, without cost or
expense to Purchaser, including but not limited to the Property Manager.
4. INSPECTION OF THE PROPERTY.
During the period ("Inspection Period") commencing on the date
hereof and ending thirty (30) days thereafter, Purchaser and its agents
and representatives may inspect the Property (including the Leases and
the books, records and documents of the Property maintained by either
Seller or the Property Manager at the Premises) and conduct such sampling
or non-destructive testing as Purchaser shall reasonably deem necessary
during normal business hours, subject to the following terms and
conditions:
A. Purchaser shall give Seller (in care of Keith Harris (312)
915-2710) reasonable telephonic notice of its intention to inspect the
Property or conduct any sampling or testing. In addition, Purchaser
shall give at least two (2) business days telephonic notice to John Hahn
(202-408-6430) before any environmental sampling or testing is done at
the Premises. Seller acknowledges that such notice in connection with
environmental sampling or testing to be conducted at the Premises has
been given by Purchaser.
B. If Purchaser desires to conduct any environmental sampling
or testing at the Premises, Purchaser shall first provide Seller with the
proposed study plan therefor ("Plan"). The Plan is subject to the
approval of Seller and no environmental sampling or testing shall be
performed until the Plan therefor has been approved by Seller, which
approval shall not be unreasonably withheld or delayed. Seller
acknowledges that the Plan has been given to and approved by Seller.
Purchaser agrees that Seller may have a representative present at any
inspection, sampling or testing of the Premises, including, but not
limited to, an environmental engineer or consultant designated by Seller
(in connection with any environmental sampling or testing conducted by
Purchaser in accordance with this Section 4). At Seller's request, any
sampling or testing by Purchaser's environmental consultant shall be
conducted in a manner so as to provide "split" samples or data to
Seller's environmental consultant. All costs and expenses incurred by
Seller pursuant to this Section 4.B shall be borne by Seller.
C. Purchaser shall maintain adequate liability insurance
coverage for its officers, employees, agents and representatives
inspecting the Property and, at Seller's request, will provide Seller
with written evidence of same.
D. Any such inspections, sampling or testing conducted by
Purchaser shall be at Purchaser's sole cost and expense and Purchaser
agrees to keep the Property free and clear of any liens which may arise
as a result of such inspections, sampling or testing of the Premises.
E. Purchaser shall restore promptly any physical damage caused
by its inspection, sampling or testing of the Premises.
F. Purchaser shall, upon the request of Seller, provide Seller
with copies of written sampling test results and reports prepared by
third parties, but otherwise Purchaser and its officers, directors,
employees, agents and representatives shall keep all such information,
sampling and test results and reports obtained or developed during or as
a result of such inspection, sampling or testing strictly confidential,
except as provided in Section 13.F below.
G. Purchaser hereby indemnifies and agrees to defend, and hold
Seller and its partners, and their respective officers, directors,
shareholders, advisors, beneficiaries, agents, employees, representatives
and affiliates harmless from and against all loss, cost, liability, lien,
damage or expense, including reasonable attorneys' fees and costs made,
sustained, suffered or incurred against or by Seller and its partners and
their respective officers, directors, shareholders, advisors,
beneficiaries, agents, employees, representatives and affiliates and
attributable to or arising out of a breach of the foregoing agreements by
Purchaser in connection with any such inspection, sampling or testing.
5. TERMINATION OF AGREEMENT.
If based on the inspection rights granted to Purchaser in Section 4
above, Purchaser determines that it has an objection to the condition of
the Property for any reason whatsoever or for no reason, then Purchaser
may elect to terminate this Agreement by giving Seller notice, in
writing, that it elects to terminate this Agreement, which notice must be
received by Seller not later than 5:00 P.M. Central Time on the last day
of the Inspection Period. In such event, the Deposit Escrowee shall
return promptly the Deposit to Purchaser, other than $100 which shall be
paid to Seller as consideration for the Inspection Period, and neither
party shall have any liability to the other, except for the obligations
of Purchaser set forth in Section 4.G above and Section 13.F below and
the obligations of both parties set forth in Section 8.D below, which
shall survive the termination of this Agreement. If Purchaser fails to
give timely notice of its election to terminate this Agreement as
aforesaid, it shall be conclusively presumed that Purchaser has satisfied
or waived the foregoing contingency.
6. TITLE AND SURVEY.
A. The Premises shall be conveyed to Purchaser at Closing by a
recordable special warranty deed in the form of Exhibit D attached hereto
and made a part hereof ("Deed") and shall be subject only to (i) the lien
of non-delinquent real estate taxes and assessments, (ii) the rights of
tenants, as tenants only, under the Leases, (iii) acts and deeds of
Purchaser, and (iv) the matters approved or deemed approved by Purchaser
pursuant to Section 6.B below (collectively called the "Permitted
Exceptions").
B. Within seven (7) days after the date of this Agreement,
Seller shall furnish to Purchaser (i) a commitment ("Title Commitment")
for an Owner's Policy of Title Insurance in the form currently prescribed
by the State Board of Insurance of Texas showing title to the Premises in
Seller, and proposing to insure Purchaser in the amount of the Purchase
Price, and issued by the Title Company, and (ii) copies of each recorded
document affecting the Premises shown on the Title Commitment. Anything
to the contrary in this Agreement notwithstanding, Seller agrees to pay
or discharge any liens and encumbrances arising after the effective date
of the Title Commitment and prior to Closing which are voluntarily
created by Seller; provided, however, Seller may cause the Title Company
to insure over any mechanics liens filed against the Premises. The Title
Commitment shall be conclusive evidence of good title as therein shown as
to all matters to be insured thereby, subject only to the Permitted
Exceptions. If the Title Commitment discloses matters which are not
Permitted Exceptions pursuant to Sections 6.A(i)-(iii) above or which are
objected to by Purchaser, Purchaser shall give written notice specifying
such fact to Seller within ten (10) days after its receipt of the Title
Commitment and legible copies of all underlying documents creating title
exceptions (and failure to timely give such notice of objection shall
constitute approval of the Title Commitment by Purchaser), and Seller
shall have (at Seller's election) thirty (30) days after the date of
receipt of Purchaser's written notice ("Title Cure Period") to have the
Title Company waive such matters or commit to insure for the full amount
of the policy against loss or damage that may be occasioned by such
matters. If Seller (in its sole discretion) does not provide Purchaser
with written notice that Seller has arranged with the Title Company to
have such matters removed or committed to be insured over within the
Title Cure Period, Purchaser may, within two (2) business days after the
earlier to occur of (x) receipt of notice from Seller that Seller does
not elect to cure or have insured over the matter objected to by
Purchaser, or (y) the expiration of the Title Cure Period, (i) terminate
this Agreement upon written notice given to Seller, or (ii) elect, upon
written notice given to Seller, to take title as it then is without any
set-off or deduction of any kind against the Purchase Price or otherwise.
If this Agreement is so terminated, the Deposit Escrowee shall return
promptly the Deposit to Purchaser and neither party shall have any
liability to the other except for the obligations of Purchaser set forth
in Section 4.G above and Section 13.F below and the obligations of the
parties set forth in Section 8.D below, which shall survive the
termination of this Agreement. If Seller does not receive written notice
of Purchaser's election to terminate this Agreement within the two
business day period specified above, Purchaser shall be conclusively
presumed to have elected to terminate this Agreement.
C. Within twenty (20) days after the date hereof, Seller shall
cause to be furnished to Purchaser an update of the Existing Survey
("Updated Survey"), certified to Purchaser or its designee and the Title
Company by a surveyor registered in the State of Texas and containing the
surveyor's certification that no portion of the Premises is located in an
area designated as being within a flood plain pursuant to the Flood
Disaster Act of 1973, as amended, and which certification is
substantially in the form of Exhibit E attached hereto and made a part
hereof. If the Updated Survey discloses any matter which is objected to
by Purchaser, Purchaser shall give written notice specifying such fact to
Seller within five (5) days of its receipt of the Updated Survey (and
failure to timely give such notice of objection shall constitute approval
of the Updated Survey by Purchaser), in which event, Purchaser shall (at
the time of such notice) elect either to (i) terminate this Agreement, or
(ii) grant Seller a period of up to thirty (30) days from the date of
receipt of Purchaser's written notice ("Survey Cure Period") to have such
matters removed from the Updated Survey or to have the Title Company
commit to insure for the full amount of the policy against loss or damage
that may be occasioned by such matters, in either case, to Purchaser's
reasonable satisfaction (and failure of Purchaser to so elect shall be
deemed to constitute Purchaser's election to have granted Seller the
thirty-day period to remove or have insured over any matter on the
Updated Survey not shown on the Existing Survey). If Seller (in its sole
discretion) does not have such matters removed from the Updated Survey or
committed to be insured over within the Survey Cure Period, in either
case, to Purchaser's reasonable satisfaction, Purchaser may, within two
(2) business days after the earlier to occur of (x) receipt of notice
from Seller that Seller does not elect to remove or have insured over the
matter objected to by Purchaser, or (y) the expiration of the Survey Cure
Period, (i) terminate this Agreement upon written notice given to Seller,
or (ii) elect, upon written notice given to Seller, to accept the Updated
Survey as it then appears without any set-off or deduction of any kind
against the Purchase Price or otherwise. If this Agreement is so
terminated, the Deposit Escrowee shall return promptly the Deposit to
Purchaser and neither party shall have any liability to the other except
for the obligations of Purchaser set forth in Section 4.G above and
Section 13.F below and the obligations of the parties set forth in
Section 8.D below, which shall survive the termination of this Agreement.
If Seller does not receive written notice of Purchaser's election to
terminate this Agreement within the two business day period specified
above, Purchaser shall be conclusively presumed to have elected to
terminate this Agreement.
D. The cost of the Title Commitment and the owner's title
insurance policy issued pursuant thereto ("Title Policy") and the Updated
Survey shall be paid by Seller. The cost of curing (if elected by
Seller) any title or survey defects or adverse matters (limited as set
forth in Sections 6.B and 6.C above) which are not Permitted Exceptions
shall be paid by Seller. The standard printed exceptions contained in
the Title Policy shall be modified at Closing as follows: (1) the
exception pertaining to discrepancies, conflicts or shortages in area
shall be deleted except for "shortages in area", (2) the exception
related to taxes shall be amended to read "taxes for the year 1994 and
subsequent years and subsequent assessments for prior years due to change
in land usage or ownership", (3) the exception pertaining to restrictions
shall reflect only restrictions that are Permitted Exceptions or shall be
deleted, and (4) the exception pertaining to rights of parties in
possession shall be limited only to those holding under the Leases, as
tenants only. The cost for modifying the standard printed exception as
set forth in clause (1) above shall be paid by Purchaser. Any additional
coverages or endorsements available in Texas which are desired by
Purchaser shall be obtained solely at Purchaser's own expense and shall
not be conditions of closing.
E. Purchaser is hereby advised in writing that Purchaser should
have the Title Commitment examined by an attorney of Purchaser's own
selection or that Purchaser should be furnished with or obtain the Title
Policy. Seller shall furnish Purchaser with the Title Policy in
accordance with the provisions of this Agreement.
7. CLOSING.
Payment of the Purchase Price and the consummation of the
transaction contemplated by this Agreement ("Closing") shall take place
at 9:00 a.m. Central time at the offices of the Title Company in Houston,
Texas on that date which is fifteen (15) days after the expiration of the
Inspection Period (or, if such date is not a business day, the Closing
shall take place on the first business day thereafter), or at such
earlier date or other place as may be mutually agreed upon in writing by
both Seller and Purchaser. The date of the Closing may be extended by
Seller beyond such date by the number of days (not to exceed 30 days)
needed to (a) satisfy any prepayment requirements contained in the
existing mortgage financing documents pertaining to the Property, and
(b) cure title or survey defects or adverse matters pursuant to Section 6
above.
8. REPRESENTATIONS AND WARRANTIES.
A. Seller represents and warrants to Purchaser that:
1. Seller is a limited partnership, duly organized, validly
existing and in good standing under the laws of the State of Texas,
has duly authorized the execution and performance of this Agreement
and such execution and performance will not violate Seller's
Partnership Agreement or any contract or agreement by which Seller
is bound.
2. 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 will, when executed and
delivered, be enforceable in accordance with its terms, subject to
bankruptcy, insolvency and similar laws affecting creditors' rights
generally.
3. To Seller's knowledge, neither Seller nor the Property
Manager has received written notice prior to the date hereof from
any governmental authority of any violation of any environmental,
zoning, building, fire or health code or law applicable to the
Property or any portion thereof, that has not heretofore been
corrected. However, no warranty is made with respect to the
Americans With Disabilities Act, 42 USC Section 12101 et seq. and
the regulations promulgated thereunder, or with respect to any
matters disclosed in the Existing Environmental Report (if any).
4. To Seller's knowledge, the Service Contracts contained in
the Information Package are all of the contracts made by Seller or
the Property Manager which affect the Property as of the date of
the Information Package, except for the Leases, the Permitted
Exceptions and the existing property management agreement which is
to be terminated effective upon Closing.
5. There are no delinquencies with respect to real estate
taxes affecting the Premises.
6. The Land constitutes a separate parcel or parcels for real
estate tax purposes.
7. Seller does not have any employees in connection with the
Property.
8. There are no real estate tax protests or proceedings
initiated by Seller affecting the Premises.
9. There is no pending or (to Seller's knowledge) threatened
litigation (including, without limitation, any condemnation or
notice of condemnation) affecting or related to the Property,
except for litigation that is covered by Seller's insurance.
10. Each person executing and delivering this Agreement and
all documents to be executed and delivered in regard to the
consummation of the transaction which is the subject of this
Agreement on behalf of Seller has due and proper authority to
execute and deliver same.
B. Purchaser represents and warrants to Seller that:
1. Purchaser is a corporation, duly organized, validly
existing and in good standing under the laws of the State of
Delaware, has duly authorized the execution and performance of this
Agreement, and such execution and performance will not violate its
Articles of Incorporation, Bylaws or any contract or agreement by
which it is bound.
2. This Agreement is valid and enforceable against Purchaser
in accordance with its terms and each instrument to be executed by
Purchaser pursuant to this Agreement will, when executed and
delivered, be enforceable in accordance with its terms, subject to
bankruptcy, insolvency and similar laws affecting creditors' rights
generally.
3. Each person executing and delivering this Agreement and
all documents to be executed and delivered in regard to the
consummation of the transaction which is the subject of this
Agreement on behalf of Purchaser has due and proper authority to
execute and deliver same.
C. As used in Section 8.A. (or in any other Sections of this
Agreement), "knowledge" shall mean and be limited to the actual knowledge
(as distinguished from implied, imputed or constructive knowledge) of
Jack Dinerstein (the general partner of the general partner of Seller)
and Lynn Oliver (the on-site manager of the Property for Property
Manager). Such "knowledge" of the aforedescribed individuals shall not
include a duty to inquire or investigate any facts or information with
respect to the Property or the warranties of Seller contained herein.
D. Seller and Purchaser mutually represent and warrant to each
other that each has had no dealings, negotiations, or consultations with
any broker or other intermediary in connection with this Agreement or the
sale of the Property, except for Burney Interests, Inc. ("Burney").
Provided the transaction contemplated hereby is consummated, Seller shall
pay a brokerage commission to Burney in an amount previously agreed to by
such parties, and Seller agrees to indemnify, defend and hold Purchaser
free and harmless from any claims (including attorneys' fees) of Burney
for Seller's breach of its covenant to pay Burney such commissions
pursuant to the terms of this Section 8.D. Seller and Purchaser agree
that each will indemnify, defend and hold the other free and harmless
from the claims (including attorneys' fees) of any other broker or other
intermediary claiming to have dealt with Seller or Purchaser,
respectively, in connection with this Agreement or the sale of the
Property. The indemnification obligations of Seller and Purchaser
pursuant to this Section 8.D shall survive the Closing.
E. It shall be a condition to each party's obligation to close
that the representations and warranties of the other party are true and
correct in all material respects as of Closing.
F. If prior to Closing Purchaser obtains actual knowledge (as
distinguished from implied, imputed or constructive knowledge) that any
of Seller's representations and warranties are not true and correct,
Purchaser shall promptly notify Seller of same. Seller shall have a
period of thirty (30) days in which to attempt to cure any breach of
warranty alleged by Purchaser or any breach of warranty otherwise
discovered by Seller (and the date of Closing shall be extended
accordingly); provided, however, that Seller, at its sole option, may
elect not to cure (or attempt to cure) the alleged breach. If Seller
does not cure such breach of warranty within the specified time,
Purchaser may (i) terminate this Agreement upon written notice given to
Seller within fifteen (15) days after the expiration of the thirty (30)
day period, unless Purchaser is notified that such breach is cured within
the fifteen (15) day period, or (ii) elect, upon written notice given to
Seller within fifteen (15) days after the expiration of the thirty (30)
day period, to close without any set-off or deduction of any kind against
the Purchase Price or otherwise. If this Agreement is so terminated,
neither party shall have any liability to the other except for the
obligations of Purchaser set forth in Section 4.G above and Section 13.F
below and the obligations of the parties set forth in Section 8.D above,
which shall survive the termination of this Agreement. If Seller does
not receive written notice of Purchaser's election to close this
transaction within fifteen (15) days after the expiration of the thirty
(30) day period, Purchaser shall be conclusively presumed to have elected
to terminate this Agreement, in which event, the provisions of the
immediately preceding sentence shall be applicable.
G. The representations and warranties set forth in Sections
8.A.1, 8.A.10, 8.B.1, 8.B.3 and 8.D shall survive the Closing for the
full period of the applicable statute of limitations. The
representations and warranties set forth in the Deed shall survive the
Closing for a period of three (3) years. All of the other
representations, warranties and certifications of the parties set forth
in Sections 8.A and 8.B above and in the documents delivered pursuant to
Sections 10.A.2 and 10.A.3 below (collectively called the "Conveyance
Documents") shall survive Closing, provided written notice of any claim
arising from a breach of such representations, warranties and
certifications must be specified and received by the other party not
later than six (6) months after the date of Closing and prosecuted by the
filing of a lawsuit in a court of proper jurisdiction within nine (9)
months of Closing. All other claims for breach of such representations,
warranties and certifications shall be barred and neither party shall
have any liability with respect thereto. In no event shall the aggregate
liability of Seller for a breach of the representations, warranties and
certifications set forth in Section 8.A above (except for the
representations contained in Sections 8.A.1, 8.A.10 and in the Deed) or
contained in the Conveyance Documents exceed TWO HUNDRED TWENTY THOUSAND
Dollars ($220,000). Notwithstanding anything contained herein to the
contrary, Purchaser shall have no right to recover damages against Seller
for the breach of any representation, warranty or certification of Seller
contained herein or in the Conveyance Documents as to which Purchaser had
actual knowledge prior to Closing, but as to which Purchaser did not give
Seller the notification required in Section 8.F above. The maximum
liability of Seller for a breach of any of the warranties or covenants
contained in Sections 8.A.1, 8.A.10, and in the Deed, shall not exceed
the Purchase Price. Purchaser shall not assert any claim against Seller
under the Deed with respect to warranties of title (as distinguished from
Seller's authority to execute and deliver the Deed to Purchaser, with
respect to which Purchaser's rights to assert a claim against Seller
shall not be so limited, except as provided above) until Purchaser has
first pursued all applicable rights and remedies available under the
Title Policy with respect to such claim (and all applicable appeal
periods have expired). Purchaser and Seller hereby acknowledge and agree
that at Purchaser's request, the Deed shall contain no reference to the
limitations set forth in this Section 8.G, and that notwithstanding such
omission, the covenants and conditions contained in this Section 8.G
shall survive the recording of the Deed. Any conflict or inconsistency
between the rights and obligations of Seller and Purchaser as enumerated
under this Section 8.G and under the Deed shall be governed by the terms
of this Agreement. Nothing contained herein shall limit the rights of
Purchaser to pursue any and all claims against the Title Company under
the terms of the Title Policy.
9. CLOSING COSTS AND PRORATIONS.
A. Seller and Purchaser shall share equally the cost of the
escrow closing arrangements imposed by Title Company, the aggregate
amount of which shall not exceed $250. Except as otherwise specifically
provided in this Agreement, each party shall bear its own costs in
performing its obligations under this Agreement including, without
limitation, its own attorneys' fees and, in the case of Purchaser, all
costs and expenses in connection with its inspection of the Property as
provided in Section 4 above.
B. The following items are to be prorated or adjusted as of
11:59 p.m. on the date immediately prior to the date of Closing
("Proration Date"):
1. Rents, as and when collected. If as of the Proration Date
there are rents owed by tenants for the month in which the Closing
occurs, then the first monies received from said tenant or tenants
shall be received on account of or in payment of such past due
rents and (i) if Purchaser receives said past due rents, Seller's
aforesaid share thereof shall be remitted by Purchaser to Seller,
and (ii) if Seller receives such past due rents, Purchaser's
aforesaid share thereof shall be remitted by Seller to Purchaser.
With respect to any arrears for periods prior to the month in which
the Closing occurs, Purchaser shall pay such arrears to Seller as
and when collected from the monies received from such tenant
provided such tenant is otherwise current in its rent. With
respect to rents for any period subsequent to the month in which
the Closing occurs that may be received by Seller, Seller shall
promptly remit such rents to Purchaser.
2. Real estate and personal property taxes, if any, on the
basis of the fiscal year for which assessed. If the Closing shall
occur before the tax rate or assessment is fixed for the fiscal
year in which the Closing occurs, then the apportionment of such
real estate and personal property taxes at the Closing shall be
upon the basis of the tax rate for the next preceding year applied
to the latest assessed valuation. Final adjustment will be made
upon the actual tax amount, when determined.
3. Tax and utility company deposits, if any, and if
assignable and assigned.
4. Water and sewer charges on the basis of the most recent
bills available, but if there are water meters on the Premises,
Seller, to the extent the same is obtainable, shall furnish a
reading effective as of the Proration Date, or if not so
obtainable, to a date not more than thirty (30) days prior to the
Proration Date, and the unfixed meter charges based thereon for the
intervening period shall be apportioned on the basis of such last
reading. Upon the taking of a subsequent actual reading, such
apportionment shall be readjusted and Seller or Purchaser, as the
case may be, will promptly deliver to the other the amount
determined to be so due upon such readjustment. If Seller is
unable to furnish such prior reading, any reading subsequent to the
Closing will be apportioned on a per diem basis from the date of
such reading immediately prior thereto and Seller shall pay the
proportionate charges due up to the date of Closing.
5. Amounts paid or payable in respect of any Service
Contracts assigned to Purchaser hereunder, including but not
limited to, any up-front "bonus" payments made in consideration of
entering into any Service Contract (which up-front "bonus"
payments, if any, shall be prorated based upon the unexpired term
of the applicable Service Contract).
6. Electricity, gas and steam, if any, prorated based upon
the most current bill.
7. Fuel, if any, based on a fuel company letter showing
measurement no more than two (2) days prior to Closing and valued
at current prices.
8. Purchaser shall receive a credit against the Cash Balance
in an amount equal to all tenant security deposits (including any
pet deposits) and accrued interest to which tenants may be entitled
pursuant to the Leases which are to be assigned to Purchaser at the
Closing and which have not been previously applied by Seller in
accordance with the provisions of Section 3.H above; provided,
however, Purchaser hereby acknowledges that any and all cleaning
fees assessed against tenants upon commencement of such tenants'
Leases shall not be subject to any proration under this
Section 9.B.8.
9. Except as set forth in this Agreement, the customs of the
county in which the Premises is located shall govern prorations.
C. If such prorations result in a payment due Purchaser, then
the Cash Balance shall be reduced by such sum.
D. If such prorations result in a payment due Seller, then the
same shall be paid to Seller in addition to the Cash Balance payable at
Closing.
E. The parties hereto shall endeavor to prepare a schedule of
prorations on the Proration Date prior to Closing.
F. The parties hereto shall correct any errors in prorations as
soon after the Closing as amounts are finally determined. The parties
hereto shall enter into the post-closing adjustment letter at the Closing
in the form of Exhibit F annexed hereto ("Post-Closing Adjustment
Letter").
10. CLOSING DOCUMENTS AND MATTERS.
A. On the Proration Date, Seller shall deliver the following
original documents into escrow, each acknowledged and executed (as
appropriate):
1. The Deed to the Premises in the form of Exhibit D attached
hereto, subject only to the Permitted Exceptions, which Deed shall
contain the legal description of the boundaries of the Land as
shown on the Updated Survey, provided same has been approved by the
Title Company.
2. A bill of sale with respect to the Personal Property, in
the form of Exhibit G attached hereto and made a part hereof.
3. An assignment and assumption of Leases, Service Contracts,
Permits and Warranties, Plans and any other so-called intangible
property constituting the Property in the form of Exhibit H
attached hereto and made a part hereof.
4. A letter advising tenants under the Leases of the change
in ownership of the Premises, in the form of Exhibit I attached
hereto and made a part hereof.
5. Originals of all Leases, assigned Service Contracts,
Permits and Warranties, and Plans (to the extent any of the
foregoing are in Seller's possession) and copies of the intangible
property described in Section 1.A.4 above, all of which shall be
delivered to Purchaser or its agent at the Premises.
6. An affidavit pursuant to the Foreign Investment and Real
Property Transfer Act in the form of Exhibit J attached hereto and
made a part hereof.
7. A title affidavit as reasonably required by the Title
Company, in connection with the issuance of the Title Policy, which
affidavit may disclose the Leases by attaching a copy of the Rent
Roll and which may provide that there is no lienable work that has
been performed by or on behalf of Seller on or about the Premises
which has not been fully paid for.
8. Any evidence of the authority of Seller to consummate the
transaction contemplated hereby that is reasonably requested by the
Title Company.
9. The Post-Closing Adjustment Letter dated as of the Closing
Date.
10. A rent roll with respect to the Leases certified by Seller
that to Seller's knowledge, such rent roll is true and correct in
all material respects as of the Closing Date.
11. All keys in Seller's possession and combinations known to
Seller to all locks on the Improvements shall be delivered to
Purchaser or its agent at the Premises.
12. Either (i) an instrument assigning to Purchaser any rights
under any proceeding for the reduction of real or personal property
taxes assessed against any portion of the Premises for the fiscal
year in which the Closing takes place; any refund for such year
shall be prorated when received as of the Proration Date, or (ii) a
certificate from Seller that no proceeding for the reduction of
real or personal property taxes is on-going as of the Closing Date.
13. UCC searches conducted by a UCC search company reasonably
acceptable to Purchaser at the County and State level, searching
Seller's name, the name of any other entity known to Seller which
may have owned the Property during the past five (5) years, and the
name "Silvermine Apartments," updated to a date not more than ten
(10) days prior to the Closing (the "UCC Search").
14. Any forms required to transfer any telephone numbers used
by Seller in connection with the Property.
15. Letter from Burney releasing Purchaser from all claims for
brokerage commissions in connection with the transaction which is
the subject of this Agreement in form and substance reasonably
satisfactory to Purchaser.
16. Any other instruments specifically referred to inthis
Agreement.
B. On the Proration Date, Purchaser shall deliver or cause to be
delivered the following original documents into escrow, each acknowledged
and executed (as appropriate):
1. The assignment and assumption agreement in the form of
Exhibit H hereto.
2. The tenant notification letters described in Section
10.A.4 above.
3. Any evidence of the authority of Purchaser to consummate
the transaction contemplated hereby that is reasonably requested by
the Title Company.
4. The Post-Closing Adjustment Letter dated as of the Closing
Date.
5. Any other instruments specifically referred to in this
Agreement.
C. At Closing, Purchaser shall pay or cause to be paid to Seller
the Cash Balance as required pursuant to Section 2 above, plus or minus
prorations as determined pursuant hereto. Closing shall be deemed to
have occurred (e.g., for purposes of possession and prorations) at such
time as Seller shall have delivered the Deed to Purchaser and the Cash
Balance shall have been paid to Seller.
D. In addition to the other conditions to Closing expressly set
forth in this Agreement, it shall be a condition to Purchaser's
obligation to close the transaction contemplated hereby that Purchaser
receives at Closing the Title Policy or the written obligation of the
Title Company to issue the Title Policy, in either case showing no
exceptions to title other than the Permitted Exceptions.
E. Seller shall terminate the existing management agreement with
the Property Manager effective as of the date of Closing.
F. Purchaser shall be entitled to possession of the Property at
the conclusion of Closing subject only to the matters expressly permitted
by or pursuant to this Agreement.
G. Effective upon Closing, Seller may notify all contractors and
utility companies serving the Property advising them of the sale of the
Property and to (i) return any deposit or deposits posted by Seller,
(ii) terminate Seller's account effective on noon on the date of Closing,
and (iii) direct to Purchaser all bills for services provided to the
Property on and after the date of Closing.
11. CASUALTY AND CONDEMNATION.
A. If, prior to Closing, either (i) the Premises are destroyed
or materially damaged by fire or other casualty or (ii) the Premises or
any part thereof is condemned, then Purchaser may elect to terminate this
Agreement. Purchaser shall give written notice of its election to Seller
within ten (10) days after receiving notice from Seller of damage or
condemnation. In such event, the Deposit Escrowee shall return the
Deposit to Purchaser and thereupon this Agreement shall be null and void
and neither party shall have any further obligations under this Agreement
except under Sections 4.G, 8.D and 13.F, which survive such termination.
If Purchaser fails to give such written notice within such ten (10) day
period that it elects to proceed with this transaction, this Agreement
shall terminate with the same effect as if Purchaser elected to terminate
this Agreement as aforesaid. If Purchaser elects to have this Agreement
remain in full force and effect despite such damage, casualty or
condemnation, then Purchaser shall so notify Seller of its election
within such ten (10) day period, in which event Seller will assign to
Purchaser at Closing the physical damage proceeds of any insurance policy
payable to Seller or Seller's portion of the condemnation award, in
either case, not to exceed the Purchase Price.
B. As used in Section 11.A(i) above and Section 11.C below,
material damage shall be deemed to have occurred if the cost of repairing
such damage is in excess of ONE HUNDRED TEN THOUSAND DOLLARS ($110,000).
As used in Section 11.A (ii) above, a condemnation shall be deemed to
have occurred if any governmental authority or other entity having
condemnation authority shall institute an eminent domain proceeding or
take any steps preliminary thereto (including the giving of any direct
notice of intent to institute such proceedings).
C. If prior to Closing less than a material portion of the
Premises is damaged by fire or other casualty, then the transaction
contemplated by this Agreement shall be consummated as otherwise provided
herein. In the event of such casualty, Purchaser shall receive at
Closing a credit against the Cash Balance in an amount reasonably
estimated by Seller and Purchaser as the cost to repair such damage or
casualty and Seller shall be entitled to retain all proceeds of any
insurance policy payable as a result of such casualty. If after Closing
it is discovered that there was any damage to the Property occurring
between the last day of Purchaser's inspection of the Improvements and
the date of Closing that is covered by insurance carried by Seller,
Seller will cooperate with reasonable requests of Purchaser to assign
Seller's insurance proceeds to Purchaser.
12. DEFAULT.
A. If the Closing fails to occur as a result of Purchaser's
default under this Agreement, Seller's sole remedy therefor shall be that
the Deposit shall be paid by the Deposit Escrowee to Seller as liquidated
damages, and both parties shall be relieved of and released from any
further liability hereunder except for the obligations of Purchaser set
forth in Section 4.G. above and Section 13.F below and the obligations of
the parties set forth in Section 8.D above. Seller and Purchaser agree
that the Deposit is a fair and reasonable amount to be retained by Seller
as agreed and liquidated damages in light of Seller's removal of the
Property from the market and the costs incurred by Seller and shall not
constitute a penalty or a forfeiture.
B. If Seller shall default under this Agreement or refuse or
fail to convey the Property as herein provided, Purchaser's sole remedy
therefor shall be either (1) to terminate this Agreement, or (2) to
enforce Seller's obligations to convey the Property in accordance with
the provisions of this Agreement, provided that no such action in
specific performance shall seek to require Seller to (a) change the
condition of the Property or restore the Property or any part thereof
following any fire, other casualty or condemnation; (b) expend money or
post a bond to remove a title defect or correct any matter shown on the
Updated Survey in excess of its obligations under Sections 6.B, 6.C and
6.D above; or (c) secure any permit, or third party approval or consent
with respect to the Property or Seller's conveyance of the Property.
13. MISCELLANEOUS.
A. No alteration, modification or interpretation of this
Agreement or the Exhibits shall be binding unless in writing and signed
by both parties.
B. If any provision of this Agreement or any application to any
party or circumstances shall be determined by any court of competent
jurisdiction to be invalid and unenforceable to any extent, the remainder
of this Agreement or the application of such provision to such person or
circumstances, other than those as to which it is so determined invalid
or unenforceable, shall not be affected thereby, and each provision
hereof shall be valid and shall be enforced to the fullest extent
permitted by law, except that, if as a result thereof, the consideration
to be paid to Seller under this Agreement is diminished in any material
respect Seller shall have the option, upon written notice to Purchaser,
to terminate this Agreement.
C. This Agreement shall be construed and enforced in accordance
with the laws of the State of Texas.
D. Purchaser may not assign this Agreement without first
obtaining Seller's written consent, which consent may be withheld in
Seller's sole discretion; provided, however that Seller hereby consents
to an assignment of this Agreement to an entity which is wholly-owned by
Purchaser or which is wholly-owned by the Public Employees Retirement
System of Ohio. Any assignment in contravention of this provision shall
be void. No assignment (including an assignment to an entity wholly-
owned by Purchaser or wholly owned by the Public Employees Retirement
System of Ohio) shall release the Purchaser herein named from any
obligation or liability under this Agreement. Purchaser shall notify
Seller in writing of the name and address of the assignee pursuant to
this Section 13.D and provide Seller with a copy of the assignment.
E. This Agreement shall be binding and inure to the benefit of
Purchaser and Seller and their successors and permitted assigns.
F. Purchaser shall make no public disclosure of the terms of
this transaction without the prior written consent of Seller, except as
may be required by law or applicable governmental regulation. Purchaser
shall continue to comply with the confidentiality requirements set forth
in any confidentiality agreement previously entered into between Seller
and Purchaser.
G. The captions in this Agreement are inserted only as a matter
of convenience and for reference and in no way define, limit or describe
the scope of this Agreement or the scope or content of any of its
provisions.
H. In the event of any litigation arising out of this Agreement,
in addition to any other rights or remedies specified herein, the
prevailing party shall be entitled to its reasonable attorneys' fees and
costs.
I. IN ANY PROCEEDING TO ENFORCE THE TERMS OF THIS AGREEMENT OR
OBTAIN ANY REMEDY PROVIDED FOR HEREIN OR OTHERWISE PERMITTED BY LAW IN
CONNECTION WITH THE SUBJECT MATTER HEREOF, WHETHER BEFORE OR AFTER
CLOSING, SELLER AND PURCHASER WAIVE TRIAL BY JURY TO THE FULLEST EXTENT
PERMITTED BY LAW.
J. Nothing contained in this Agreement shall be construed to
create a partnership or joint venture between the parties or their
successors in interest or any other relationship other than seller and
purchaser.
K. Time is of the essence of this Agreement.
L. This Agreement may be executed and delivered in any number of
counterparts, each of which so executed and delivered shall be deemed to
be an original and all of which shall constitute one and the same
instrument.
M. Purchaser and Seller agree not to record this Agreement or any
memorandum thereof.
N. No failure or delay by a party to exercise any right it may
have by reason of the default of the other party shall operate as a
waiver of default or as a modification of this Agreement or shall prevent
the exercise of any right by the first party while the other party
continues to be so in default.
O. For the purpose of complying with Internal Revenue Service
reporting requirements for this transaction, the parties shall request
the Title Company to prepare and file the 1099-S form (and any necessary
supporting documentation) at no cost to Purchaser or Seller and Seller
and Purchaser shall cooperate with any requests from the Title Company in
connection therewith.
P. The agreements of Seller contained herein shall only be
enforceable (subject to all limitations on liability contained in this
Agreement) against the property of Seller, including the proceeds of the
sale contemplated hereby ("Sale Proceeds"). By executing this Agreement
(i) Purchaser agrees to look solely to the property of Seller, including
the Sale Proceeds (subject to all limitations on liability contained in
this Agreement) for the enforcement of its rights hereunder, and
(ii) Purchaser hereby waives any claim or any right to proceed for the
enforcement of any of its rights hereunder against any of the partners of
Seller or any affiliate thereof, in their personal or corporate
capacities; provided, however, that Purchaser does not waive the right to
proceed against the partners of Seller (subject to all limitations on
liability contained in this Agreement) to the extent (and only to the
extent) that Sale Proceeds are actually distributed to such partners.
14. NOTICES.
Any notices or requests required or permitted to be given hereunder
shall be deemed to be given when (i) hand delivered or (ii) one (1)
business day after delivery to Federal Express or similar overnight
service for next business day delivery or (iii) received after deposit in
the U.S. mail when sent by certified mail, return receipt requested, or
(iv) received if sent by facsimile, provided that a "hard" copy of such
notice must be received by the recipient on the second business day after
the facsimile copy is received, in all cases addressed to the parties at
their respective addresses as follows:
If to Seller: DMC-Silvermine Apartments Limited
c/o Dinerstein Interests 1981,
Partnership
6363 Woodway
Houston, Texas 77057
Attn: Jack Dinerstein
Fax: (713) 977-4806
With a copy to: JMB Realty Corporation
900 North Michigan Avenue
Chicago, Illinois 60611
Attn: Keith Harris
Fax: (312) 915-2310
With a copy to: Dustin E. Neumark, Esq.
Sonnenschein Nath & Rosenthal
8000 Sears Tower
Chicago, Illinois 60606
Fax: (312) 876-7934
With a copy to: Sanford J. Slobin, Esq.
Brochstein, Slobin & Chapman, P.C.
One Riverway, Suite 1150
Houston, Texas 77056
Fax: (713)871-1618
If to Purchaser: TGM Realty Corp. #3
c/o TGM Associates L.P.
650 Fifth Avenue
28th Floor
New York, New York 10019
Attn: Thomas Gochberg
Fax: (212) 399-6310
With a copy to: Alan Linder, Esq.
Bachner, Tally, Polevoy & Misher
380 Madison Avenue
New York, New York 10017-2590
Fax: (212) 682-5729
With a copy to: Albert H. Hiller, Esq.
Haynes & Boone
4300 First Interstate Bank Plaza
Houston, Texas 77002
Fax: (713) 547-2600
or in each case to such other address as either party may from time to time
designate by giving notice in writing to the other party. The attorneys for
Seller and Purchaser may give notices on behalf of their respective clients
hereunder.
15. DISCLOSURES.
The following disclosures are made to Purchaser:
A. The Property may be subject to deed restrictions which may be
in force by a municipality. If such is the case, Purchaser and Seller
will sign and acknowledge at Closing the notice documents in conformity
with Local Government Code Article 230.001 through 230.005.
B. To the extent the Property is seaward of the Gulf
Intercoastal Waterway, notice is given pursuant to Section 61.025 of the
Texas Natural Resources Code and, if applicable, a form of notice will be
signed at Closing.
C. The Property may be located in a municipal utility district.
In accordance with Section 50.301 of the Texas Water Code, disclosure is
made of said fact to the extent it is applicable and the form of notice
will be signed at Closing.
IN WITNESS WHEREOF, Seller and Purchaser have executed and delivered this
Agreement as of the date first written above, being the date inserted by Seller
as the date of its execution and delivery hereof to Purchaser.
SELLER:
DMC-SILVERMINE APARTMENTS LIMITED, a
Texas limited partnership
By Dinerstein Interests, 1981,
Partnership, a Texas general
partnership, its sole general
partner
By _________________________
Jack Dinerstein
general partner
PURCHASER:
TGM REALTY CORP. #3, a Delaware
corporation
By: ________________________
Its_____________________
<PAGE>
For purposes of the waiver set forth
herein with respect to the Deceptive
Trade Practice-Consumer Protection
Act
Name: ,
, Esq.
Legal Counsel to Purchaser
EXHIBIT A
Legal Description of Land
EXHIBIT B
Personal Property Inventory
EXHIBIT C
Deposit Escrow Agreement
EXHIBIT C
DEPOSIT ESCROW AGREEMENT
TO: American Title Company
5 Post Oak Park
Suite 1900
Houston, Texas 77027
Attention: Mr. Kim Sobieski
RE: Escrow Trust No. 311186-J
DATE: October , 1994
I. PARTIES
A. Seller: DMC-Silvermine Apartments Limited
6363 Woodway
Houston, Texas 77057
Attention: Jack Dinerstein
B. Purchaser:TGM Realty Corp. #3
c/o TGM Associates L.P.
650 Fifth Avenue
28th Floor
New York, New York 10019
Attention: Thomas Gochberg
C. Escrow
Holder: American Title Company
5 Post Oak Park
Suite 1900
Houston, Texas 77027
Attention: Mr. Kim Sobieski
D. Purchaser's
Counsel : Alan Linder, Esq.
Bachner, Tally, Polevoy & Misher
380 Madison Avenue
New York, New York 10017-2590
E. Seller's
Counsel: Sonnenschein Nath & Rosenthal
8000 Sears Tower
Chicago, Illinois 60606
Attention: Dustin E. Neumark
II. PRELIMINARY STATEMENTS
A. Concurrently with the execution and delivery of this Deposit
Escrow Agreement, Seller and Purchaser have executed and
delivered a certain Agreement for Purchase and Sale of Real
Estate and Related Property (hereinafter referred to as the
"Agreement"), a copy of which has been provided to Escrow
Holder. Under the terms of the Agreement, Seller has agreed
to sell, and Purchaser has agreed to buy, certain land and
improvements in Victoria, Texas and commonly known as
Silvermine Apartments.
B. Pursuant to Section 2.A. of the Agreement, Purchaser is
required to deposit with Escrow Holder the sum of Two
Hundred Thousand Dollars ($200,000) (hereinafter referred to
as the "Earnest Money"), to be held by Escrow Holder
pursuant to the terms and provisions of this Deposit Escrow
Agreement.
C. Pursuant to Section 5 of the Agreement, Purchaser has the
right to terminate the Agreement upon certain conditions and
to have the Earnest Money and interest earned thereon
returned to Purchaser.
D. Provided that the provisions of Section 5 of the Agreement
or any other provision of the Agreement pursuant to which
Purchaser is entitled to terminate the Agreement and have
the Earnest Money earned thereon returned to Purchaser have
not been implemented whereby the Agreement is terminated and
the Earnest Money returned to Purchaser, then the Earnest
Money and any interest earned thereon, are to be applied
towards the Cash Balance at Closing as set forth in the
Agreement.
III. DEPOSIT OF EARNEST MONEY; INVESTMENT DIRECTIONS
A. Concurrently herewith, Purchaser has delivered the Earnest
Money to Escrow Holder in accordance with the Agreement.
B. Escrow Holder is hereby authorized and directed to invest
the Earnest Money in a money market account at Southwest
Bank of Texas or in accordance with the written direction of
Seller and Purchaser (or Seller's and Purchaser's Counsel).
Unless otherwise provided pursuant to the provisions of
Section IV hereof, such investment shall be for the benefit
of Purchaser. The Federal Taxpayer Identification Number
for Purchaser is 13-3745185.
IV. INSTRUCTIONS
A. In the event Escrow Holder receives from Seller (or Seller's
counsel) a written direction authorizing the return of the
Earnest Money and all interest earned thereon to Purchaser,
then Escrow Holder is authorized and directed to return,
within one (1) business day thereafter, the Earnest Money,
together with all interest earned thereon, to Purchaser.
B. If Escrow Holder does not receive a written direction
authorizing the return of the Earnest Money as described
Section IV. A of this Deposit Escrow Agreement, Escrow
Holder is instructed to hold and invest the Earnest Money,
together with all interest earned thereon, as provided in
Section III B. above, until Escrow Holder is in receipt of
(i) a joint written direction from Seller (or Seller's
Counsel) and Purchaser (or Purchaser's Counsel), or (ii) an
order, judgment or decree addressed to Escrow Holder which
shall have been entered or issued by any court and which
shall determine the disposition of the Earnest Money and all
interest earned thereon.
C. Any party delivering a notice required or permitted
hereunder shall simultaneously deliver copies of such notice
to all parties listed in Section I of this Deposit Escrow
Agreement. All notices required herein shall be sent in
accordance with Section 14 of the Agreement.
D. Except as otherwise expressly set forth in this Deposit
Escrow Agreement, Escrow Holder shall disregard any and all
notices or warnings given by any of the parties hereto.
E. In case Escrow Holder obeys or complies with any order,
judgment or decree of any court with respect to the Earnest
Money, Escrow Holder shall not be liable to any of the
parties hereto or any other person, firm or corporation by
reason of such compliance, notwithstanding any such order,
judgment or decree be entered without jurisdiction or be
subsequently reversed, modified, annulled, set aside or
vacated. In case of any suit or proceeding regarding this
Deposit Escrow Agreement to which Escrow Holder is or may be
at any time a party, Seller and Purchaser shall each be
liable for one-half of all such costs, fees and expenses
incurred or sustained by Escrow Holder and shall forthwith
pay the same to Escrow Holder upon demand; provided,
however, that in the event Escrow Holder is made a party to
any suit or proceeding between Seller and Purchaser, the
prevailing party in such suit or proceeding shall have no
liability for the payment of Escrow Holder's costs, fees and
expenses.
F. Escrow Holder is not to be held responsible for any loss of
the principal of or interest on the Earnest Money which may
be incurred either (i) as a result of investing the Earnest
Money in accordance with this Deposit Escrow Agreement, or
(ii) as a result of redeeming said investment for the
purposes of this Deposit Escrow Agreement.
G. In no case shall the Earnest Money be surrendered except
(i) in the manner specifically described in this Deposit
Escrow Agreement; (ii) on an order signed by Seller (or
Seller's Counsel) and Purchaser (or Purchaser's Counsel); or
(iii) in obedience to the process of order of a court as
aforesaid.
H. All fees of Escrow Holder, not to exceed $250, shall be
charged one-half to Seller and one-half to Purchaser.
I. Except as to deposits of funds for which Escrow Holder has
received express written direction from Seller and Purchaser
(or Seller's and Purchaser's Counsel) concerning investment
or other handling, the parties hereto agree that Escrow
Holder shall be under no duty to invest or reinvest any
portion of the Earnest Money at any time held by it
hereunder; provided, however, nothing herein shall diminish
Escrow Holder's obligation to apply the full amount of the
Earnest Money in accordance with the terms of this Deposit
Escrow Agreement.
V. MISCELLANEOUS
A. Any order, judgment or decree requiring Escrow Holder to
disburse the Earnest Money shall not be binding upon
Purchaser or Seller as to the ultimate disposition of the
Earnest Money unless and until a final, non-appealable
order, judgment or decree is entered by a court having
jurisdiction thereof.
B. This Deposit Escrow Agreement and all provisions hereof
shall be binding upon and shall inure to the benefit of the
parties hereto and their respective legal representatives,
successors and permitted assigns.
C. This Deposit Escrow Agreement shall not supersede the
Agreement and in case of any conflict or inconsistency
between the rights and obligations of Seller and Purchaser
hereunder and under the Agreement, the provisions of the
Agreement shall govern and control.
D. The agreements of Seller contained herein shall only be
enforceable against the property of Seller, including the
proceeds of the sale contemplated hereby ("Sale Proceeds")
for the payment of any claims hereunder. By executing this
instrument, (i) Purchaser and Escrow Holder agree to look
solely to the property of Seller (including the Sale
Proceeds) for the enforcement of their rights hereunder, and
(ii) Purchaser and Escrow Holder hereby waive any claim or
any right to proceed for the enforcement of any of their
respective rights hereunder against any of the partners of
Seller or any affiliate thereof, in their personal or
corporate capacities; provided, however that Purchaser and
Escrow Holder do not waive the right to proceed against the
partners of Seller to the extent (and only to the extent)
that Sale Proceeds are actually distributed to such
partners.
E. The agreements of Purchaser contained herein shall only be
enforceable against the property of Purchaser (including the
Earnest Money) for the payment of any claims hereunder. By
executing this instrument, (i) Seller and Escrow Holder
agree to look solely to the property of Purchaser (including
the Earnest Money) for the enforcement of their rights
hereunder, and (ii) Seller and Escrow Holder hereby waive
any claim or any right to proceed for the enforcement of
their respective rights hereunder against any officers,
directors or shareholders of Purchaser.
SELLER:
DMC-SILVERMINE APARTMENTS LIMITED, a
Texas limited partnership
By Dinerstein Interests, 1981,
Partnership, a Texas general
partnership, its sole general
partner
By _________________________
Jack Dinerstein
general partner
PURCHASER:
TGM Realty Corp. #3,
Accepted this day of a Delaware corporation
October, 1994.
By:
American Title Its
Company
By:
Name:
Title:
EXHIBIT D
Special Warranty Deed
Prepared by:
Dustin E. Neumark, Esq.
Sonnenschein Nath & Rosenthal
8000 Sears Tower
Chicago, Illinois 60606
SPECIAL WARRANTY DEED
STATE OF TEXAS )
) SS
COUNTY OF VICTORIA )
THIS SPECIAL WARRANTY DEED, made this 29th day of November, 1994,
by DMC-Silvermine Apartments Limited, a Texas limited partnership ("Grantor"),
having an address of 6363 Woodway, Houston, Texas 77057, in favor of TGM
Silvermine Inc., a Delaware corporation having an address c/o TGM Associates
L.P., 650 Fifth Avenue, New York, New York 10019 ("Grantee").
WITNESSETH, that Grantor, for and in consideration of the sum of
Ten Dollars ($10.00) in hand paid and other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, by these
presents does GRANT, SELL and CONVEY unto Grantee, its successors and assigns
the following described real property:
Being that certain tract of land located in Victoria County, Texas
and being more particularly described on Exhibit A attached hereto and made a
part hereof, together with all improvements, buildings, or fixtures situated
or located thereon, and all appurtenant rights, privileges or easements
belonging or in any way relating thereto, including but not limited to, all
interest, if any, of Grantor in any land lying in or under the bed of any
highway, avenue, street, road, alley, easement or right-of-way, open or
proposed, in, on, across, abutting or adjacent to the property described on
Exhibit A hereto, together with all of Seller's right, title and interest to
any strips and gores within or bounding the property described on Exhibit A
attached hereto (all of said property and interest being collectively referred
to herein as the "Property");
Subject only to those items listed on Exhibit B attached hereto
and made a part hereof.
TO HAVE AND TO HOLD the Property, together with any and all the
rights and appurtenances thereto in anywise belonging to Grantor, unto
Grantee, its successors and assigns FOREVER. Grantor, for itself and its
successors, does covenant, promise and agree, to and with Grantee that Grantor
has not done or suffered to be done, anything whereby the Property hereby
granted is, or may be, in any manner encumbered or charged, except as recited
herein or in Exhibit B hereto. Grantor does hereby warrant and agree to
defend title to the Property against the lawful claims of all persons claiming
by, through or under Grantor, but not otherwise, subject to the matters
described in Exhibit B hereto.
The agreements of Grantor contained herein shall only be
enforceable (subject to the limitation set forth above) against the property
of Grantor for the payment of any claims hereunder, including the
consideration received by Grantor hereunder ("Consideration"). By accepting
this instrument, (i) Grantee agrees to look solely to the property of Grantor,
including the Consideration, for the enforcement of its rights hereunder, and
(ii) Grantee hereby waives any claim or any right to proceed for the
enforcement of any of Grantee's rights hereunder against any of the partners
of Grantor or any affiliate thereof in their personal or corporate capacities;
provided, however, that Grantee does not waive the right to proceed against
the partners of Grantor (subject to the limitation set forth above) to the
extent (and only to the extent) that Consideration is actually distributed to
such partners.
IN WITNESS WHEREOF, Grantor has caused its name to be signed to
these presents the day and year first above written.
DMC-SILVERMINE APARTMENTS LIMITED, a Texas limited partnership
By Dinerstein Interests, 1981, Partnership, a Texas general
partnership, its sole general partner
By _________________________
Jack Dinerstein
general partner
After recording this
document should be
returned to:
Alan Linder, Esq.
Bachner, Tally, Polevoy
& Misher
380 Madison Avenue
New York, New York 10017-2570
STATE OF TEXAS )
)SS.
COUNTY OF HARRIS )
I, ____________________, a Notary Public in and for said county,
in ths state aforesaid, do hereby certify that Jack Dinerstein, general
partner of Dinerstein Interests, 1981, Partnership, a Texas general
partnership and general partner of DMC-Silvermine Apartments Limited, a Texas
limited partnership, who is personally known to me to be the same person whose
name is subscribed to the foregoing instrument, appeared before me this day in
person and acknowledged that he signed and delivered the said instrument as
such general partner of said general partnership as the free and voluntary act
of said partnership, for the uses and purposes as therein set forth.
Given under my hand and Notorial Seal this 29th day of November,
1994.
__________________________________
Notary Public
My Commission Expires:
___________
EXHIBIT A
LEGAL DESCRIPTION
EXHIBIT B
PERMITTED EXCEPTIONS TO TITLE
1. Any titles or rights asserted by anyone, including, but not
limited to, persons, the public, corporations, governments or
other entities,
a. to tidelands, or lands comprising the shores or beds of navigable
or perennial rivers and streams, lakes, bays, gulls or oceans, or
b. to lands beyond the line of the harbor or bulkhead lines as
established or changed by any government, or
c. to filled-in lands, or artificial islands, or
d. to statutory water rights, including riparian rights, or
e. to the area extending from the line of mean low tide to the line of
vegetation, or the rights of access to that area or easement along
and across the area.
2. Standby fees, taxes and assessments by any taxing authority for the year
1994, and subsequent years, and subsequent taxes and assessments by any
taxing authority for prior years due to change in land usage or
ownership.
3. Mineral Conveyance as provided by instrument dated February 23, 1949 and
recorded in Volume 243, page 263 of the Deed Records of Victoria County,
Texas ("Deed Records").
4. An undivided one-half interest in all oil, gas and other minerals
reserved by instrument dated December 19, 1980 and recorded in Volume
1092, page 723 of the Deed Records.
5. Reservation of a private storm sewer easement as set forth in instrument
dated December 22, 1980 and recorded in Volume 1092, page 733 of the
Deed Records.
6. Easement and/or Right-of-Way as set forth in instrument dated June 5,
1981 and recorded in Volume 1116, page 800 of the Deed Records.
7. Contract, Easement and Use Restriction dated December 30, 1980 and
recorded in Volume 1096, page 681 of the Deed Records.
8. Rights of tenants in possession under existing leases, as tenants only.
9. Leasehold rights in accordance with Memorandum of Lease dated May 7,
1981 and recorded in Volume 1112, page 541 of the Deed Records and Short
Form Lease dated November 15, 1990 and recorded in Volume 1582, page 210
of the Deed Records.
EXHIBIT E
Surveyor's Certificate
EXHIBIT E
SURVEYOR'S CERTIFICATE
I, _________________________, being a Registered Professional Land
Surveyor of the State of Texas, No. , certify to TGM Realty Corp.
#3, American Title Company and Chicago Title Insurance Company relying upon
the accuracy of this survey or plat as follows:
1. This map or plat and the survey on which it is based were made in
accordance with the "Minimum Standard Detail requirements for ALTA/ACSM Land
Title Surveys," jointly established and adopted by the American Land Title
Association and the American Congress on Surveying and Mapping in 1988 and the
current Texas Surveyor's Association Standards and Specifications for a
Category 1A, Condition II Survey.
2. The survey was made on the ground on _______________, 1994 and
correctly shows the area of the subject property, the location and type of all
buildings, structures and other improvements situated on the subject property,
and other matters situated on the subject property.
3. Except as shown on the survey, there are no visible easements or
rights-of-way of record according to the title insurance commitment dated
______________, 1994, issued by Chicago Title Insurance Company.
(______________)
4. Except as shown on the survey, there are no observable, above ground
encroachments (a) by the improvements on the subject property upon adjoining
properties, streets or alleys, or (b) by the improvements on adjoining
properties, streets or alleys upon the subject property.
5. The location of each easement, right-of-way, servitude and other
matter affecting the subject property and listed in the title insurance
commitment dated ______________, 1994, issued by Chicago Title Insurance
Company with respect to the subject property, has been shown on the survey,
together with appropriate recording references, to the extent that such
matters can be located. The property shown on the survey is the property
described in that title commitment. The location of all improvements on the
subject property is in accord with minimum setback provisions and restrictions
of record referenced in such title commitment.
6. The subject property has access to and from a duly dedicated and
accepted public street or highway.
7. The subject property does not serve any adjoining property for
drainage, utilities or ingress or egress.
8. The record description of the subject property forms a
mathematically closed figure.
9. No portion of the property shown on the survey lies within a Special
Hazard Area, as described on the Federal Insurance Rate Map for the community
in which the subject property is located.
The parties listed above are entitled to rely on the survey and this
certificate as being true and accurate.
________________________________
By
Registered Professional Land Surveyor
State of Texas No. ___________
EXHIBIT F
Post-Closing Adjustment Letter
November 29, 1994
TGM Silvermine Inc.
c/o TGM Associates L.P.
650 Fifth Avenue
New York, NY 10019
Re: Silvermine Apartments
Victoria, Texas (the "Premises")
Gentlemen:
Reference is made to that certain Agreement for Purchase and Sale
of Real Estate and Related Property, dated as of October 13, 1994, by and
between TGM Realty Corp. #3 and the undersigned ("Agreement"). In connection
with the closing adjustments made pursuant to the transfer of title of the
Premises by the undersigned to you, a copy of which closing adjustments is
annexed hereto, it is hereby agreed that if any arithmetic calculations shall
prove to be erroneous, or any adjustment shall be omitted, same shall be
adjusted between you and the undersigned after the closing. Any such
adjustment shall be paid promptly after same is ascertained. The obligation
to correct any erroneous adjustment or to make any additional adjustment in
accordance with the above shall survive the Closing. Notwithstanding the
foregoing, such closing adjustments made at Closing shall be deemed final and
not subject to further post-closing adjustment, except for reproration of real
estate taxes as provided in Section 9.B.2 of the Agreement, if no such
adjustment is requested within ninety (90) days after the date of closing.
This letter agreement may be executed in any number of counterparts,
which together shall constitute one instrument; provided that this letter
agreement shall not be effective unless and until executed by each of the
parties hereto.
Very truly yours,
DMC-SILVERMINE APARTMENTS LIMITED, a
Texas limited partnership
By Dinerstein Interests, 1981,
Partnership, a Texas general
partnership, its sole general
partner
By _________________________
Jack Dinerstein
general partner
AGREED TO:
TGM Silvermine Inc.,
a Delaware corporation
By:___________________________
Its
EXHIBIT G
Bill of Sale
BILL OF SALE
DMC-Silvermine Apartments Limited, a Texas limited partnership
("Seller"), in consideration of ten dollars ($10.00) and other valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
does hereby sell, assign, convey, transfer and set over to TGM Silvermine
Inc., a Delaware corporation ("Purchaser"), all tangible personal property
owned by and in the possession of Seller and used solely in connection with
the operation and ownership of that certain tract of real estate located in
Victoria, Texas, legally described in Exhibit A attached hereto and made a
part hereof ("Premises"), or within the improvements situated on said tract of
real estate (such real estate along with the improvements thereon commonly
known as Silvermine Apartments, are collectively called the "Property"),
including, but not limited to, all fixtures, attachments, appliances,
machinery, apparatus and equipment described in Exhibit B attached hereto and
made a part hereof, together with all raw materials, work and materials in
process, stock in trade, inventory and other equipment and other tangible
personal property owned by Seller, attached or appurtenant to, or used in
connection with the occupancy of the Premises, it being understood that the
enumeration of any specific articles of property shall in nowise result in the
exclusion of or be held to exclude any items of property not specifically
mentioned (collectively, the "Personal Property"). The Personal Property
specifically excludes any computers owed by Seller.
Seller hereby represents and warrants to Purchaser that Seller is
the owner of the Personal Property, that the Personal Property is free and
clear of all liens, charges and encumbrances created by Seller, and that
Seller has full right, power and authority to sell the Personal Property and
to make this Bill of Sale.
Seller, for itself and its successors, agrees that it shall warrant
and defend the title to the Personal Property against the lawful claims of all
persons and entities whomsoever claiming against the right, title and interest
of Purchaser in the Personal Property, or any part thereof, by, through or
under Seller, but not otherwise. All warranties of quality, fitness and
merchantability are hereby excluded.
All representations and warranties of Seller contained herein shall
be subject to all of the limitations, terms, provisions and conditions that
are contained in Section 8.G of that certain Agreement For Purchase and Sale
of Real Estate and Related Property dated as of October 13, 1994 ("Agreement")
between Seller and TGM Realty Corp. #3 ("Agreement Limitations").
The agreements of Seller contained herein shall only be
enforceable (subject to the Agreement Limitations) against the property of
Seller for the payment of any claims hereunder, including the proceeds of the
sale resulting from the Agreement ("Sale Proceeds"). By accepting this
instrument, (i) Purchaser agrees to look solely to the property of Seller
(subject to the Agreement Limitations) for the enforcement of its rights
hereunder (including the Sale Proceeds), and (ii) Purchaser hereby waives any
claim or any right to proceed for the enforcement of any of Purchaser's rights
hereunder against any of the partners of Seller or any affiliate thereof in
their personal or corporate capacities; provided, however, that Purchaser does
not waive the right to proceed against the partners of Seller (subject to the
Agreement Limitations) to the extent (and only to the extent) that Sale
Proceeds are actually distributed to such partners.
IN WITNESS WHEREOF, Seller has caused this Bill of Sale to be
executed and delivered this 29th day of November, 1994.
SELLER:
DMC-SILVERMINE APARTMENTS LIMITED, a Texas
limited partnership
By Dinerstein Interests, 1981,
Partnership, a Texas general partnership,
its sole general partner
By _________________________
Jack Dinerstein
general partner
<PAGE>
STATE OF TEXAS )
) SS.
COUNTY OF HARRIS )
I, ____________________, a Notary Public in and for said county, in ths
state aforesaid, do hereby certify that Jack Dinerstein, general partner of
Dinerstein Interests, 1981, Partnership, a Texas general partnership and
general partner of DMC-Silvermine Apartments Limited, a Texas limited
partnership, who is personally known to me to be the same person whose name is
subscribed to the foregoing instrument, appeared before me this day in person
and acknowledged that he signed and delivered the said instrument as such
general partner of said general partnership as the free and voluntary act of
said partnership, for the uses and purposes as therein set forth.
Given under my hand and Notorial Seal this 29th day of November, 1994.
__________________________________
Notary Public
My Commission Expires: ___________
EXHIBIT A
LEGAL DESCRIPTION
EXHIBIT B
DESCRIPTION OF PERSONAL PROPERTY
EXHIBIT H
Assignment and Assumption Agreement
ASSIGNMENT AND ASSUMPTION AGREEMENT
THIS ASSIGNMENT AND ASSUMPTION AGREEMENT (the "Assignment"), dated
as of November 29, 1994 by and between DMC-Silvermine Apartments Limited, a
Texas limited partnership ("Assignor"), and TGM Silvermine Inc., a Delaware
corporation ("Assignee").
W I T N E S S E T H:
WHEREAS, Assignor or Assignor's predecessors in title have
heretofore entered into (i) certain leases with tenants identified in Exhibit
B attached hereto and made a part hereof (all of the said leases are sometimes
collectively referred to herein as the "Leases") covering space located in the
apartment complex known as Silvermine Apartments, and (ii) certain service
contracts identified on Exhibit C attached hereto and made a part hereof
relating to Silvermine Apartments (all of said service contracts are sometimes
collectively referred to herein as the "Service Contracts"), located on
certain real property situated in Victoria, Texas being more particularly
described on Exhibit A which is attached hereto and made a part hereof
("Property");
WHEREAS, on the date hereof Assignee is acquiring various real and
personal property constituting or situated on the Property, and Assignee
desires to purchase from Assignor, and Assignor desires to sell and assign to
Assignee, all of Assignor's right, title and interest in (i) the Leases,
together with Seller's interest in all other leases with tenants covering
space located at Silvermine Apartments whether or not identified on Exhibit B
hereto, (ii) the Service Contracts, (iii) all architectural plans, drawings,
land plans, master plans, surveys and specifications for the Property in the
possession of Assignor ("Plans"), (iv) all licenses, warranties and permits
pertaining to the Property currently in effect and in the possession of
Assignor ("Permits and Warranties"), (v) the right, if any, to use the name
"Silvermine Apartments" ("Name Right"), and (vi) copies of any existing books,
records (including current business records), documents and intangible
property (other than accounts, accounts receivable and computer programs)
desired by Assignee pertaining to the operation, maintenance, repair and
leasing of the Property in Assignor's possession and located at the Property
(collectively, the "Miscellaneous Intangible Property").
NOW, THEREFORE, for and in consideration of the purchase and sale
of the Property, the agreements and covenants herein set forth, and other good
and valuable consideration on this day paid and delivered by Assignee to
Assignor, the receipt and sufficiency of which are hereby acknowledged and
confessed by Assignor, Assignor does hereby GRANT CONVEY and ASSIGN unto
Assignee, all of Assignor's right, title and interest in and to the Leases,
the Service Contracts, the Plans, the Permits and Warranties, the Name Right
and the Miscellaneous Intangible Property.
1. It is specifically agreed that Assignor shall not be
responsible to (i) the lessees under the Leases, or (ii) the other parties
under the Service Contracts, for the discharge and performance of any and all
duties and obligations to be performed and/or discharged by Assignor
thereunder after the date hereof. By accepting this Assignment and by its
execution hereof, Assignee hereby assumes and agrees to perform all of the
terms, covenants and conditions of the Leases and Service Contracts on the
part of Assignor therein required to be performed, from and after the date
hereof, but not prior thereto, including but not limited to the obligation to
repay in accordance with the terms of the Leases to the lessees thereunder any
and all security and prepaid rental deposits and all interest thereon, but
only to the extent Assignee has received a credit thereof to the Purchase
Price (as defined in the Agreement) from Assignor. Assignee covenants and
agrees to indemnify, protect, defend and hold harmless Assignor from and
against any and all claims, actions, losses, costs and expenses (including
reasonable attorneys' fees and costs) incurred by Assignor existing in favor
of or asserted by (i) the lessees under the Leases, or (ii) the other parties
under the Service Contracts, arising out of or relating to Assignee's failure
to perform any of the obligations of Assignor under any of the Leases or
Service Contracts after the date hereof, but Assignee shall have no obligation
to assume the performance of (a) any service contracts not set forth on
Exhibit C hereto, or (b) any obligation of Assignor to pay for tenant
improvement work, cash work allowances, or leasing commissions pursuant to any
new Lease (and/or any extensions, modifications, renewals, or options
exercised thereunder), except as provided pursuant to Section 3.B of the
Agreement.
2. Subject to the limitations provided hereinbelow and in
Section 8.G of that certain Agreement for Purchase and Sale of Real Estate and
Related Property ("Agreement") dated as of October 13, 1994 between Assignor
and TGM Realty Corp. #3 ("Agreement Limitations"), Assignor hereby agrees to
indemnify, protect, defend and hold harmless Assignee from and against any
claims, actions, losses, costs and expenses (including reasonable attorneys'
fees and costs) incurred by Assignee as a result of claims or causes of action
being brought against Assignee, (i) with respect to leasing commissions
pursuant to all Leases (and/or any extensions, modifications, renewals
thereto, or options exercised thereunder prior to the date hereof) except as
otherwise set forth in Section 3.B of the Agreement, (ii) as Assignor's
successor in interest to the Leases relating to causes of action accruing
prior to the date hereof arising from a breach of the Leases and the
obligations of the lessor thereunder (including but not limited to the
obligation to pay for tenant improvement work and cash work allowances, except
as otherwise set forth in Section 3.B of the Agreement), and, including,
without limiting the generality of this clause (ii), the obligation of
Assignor to pay all security deposits to lessees under the Leases which are
due and owing, except those as to which (x) Assignee has received a credit
against the Purchase Price (but only to the extent of such credit), and/or
(y) Assignor has previously applied, provided such application does not
violate the terms of Section 3.H of the Agreement, (iii) as Assignor's
successor in interest to the Service Contracts, relating to causes of action
accruing specifically and solely prior to the date hereof, and (iv) as
Assignor's successor in interest to all service contracts not set forth on
Exhibit C annexed hereto.
3. All of the covenants, terms and conditions set forth herein
shall be binding upon and shall inure to the benefit of the parties hereto and
their respective heirs, executors, legal representatives, successors and
assigns.
4. This Assignment may be executed in any number of
counterparts, which together shall constitute one instrument; provided that
this Assignment shall not be effective unless and until executed by each of
the parties hereto.
5. The agreements of Assignor contained herein shall only be
enforceable (subject to the Agreement Limitations) against the property of
Assignor, including the proceeds of the sale of the Property as set forth in
the Agreement ("Sale Proceeds") for the payment of any claims hereunder. By
executing this instrument, (i) Assignee agrees to look solely to the property
of Assignor (subject to the Agreement Limitations), including the Sale
Proceeds, for the enforcement of its rights hereunder, and (ii) Assignee
hereby waives any claim or any right to proceed for the enforcement of any of
Assignee's rights hereunder against any of the partners of Assignor or any
affiliate thereof, in their personal or corporate capacities; provided,
however, that Assignee does not waive the right to proceed against the
partners of Assignor (subject to the Agreement Limitations) to the extent (and
only to the extent) that Sale Proceeds are actually distributed to such
partners.
IN WITNESS WHEREOF, Assignor and Assignee have caused this
Assignment and Assumption Agreement to be executed effective as of the date
first set forth above.
ASSIGNOR:
DMC-SILVERMINE APARTMENTS LIMITED, a Texas
limited partnership
By Dinerstein Interests, 1981,
Partnership, a Texas general partnership,
its sole general partner
By _________________________
Jack Dinerstein
general partner
ASSIGNEE:
TGM SILVERMINE INC., a Delaware
corporation
By:
Its
EXHIBIT A
LEGAL DESCRIPTION
EXHIBIT B
LIST OF LEASES
EXHIBIT C
LIST OF SERVICE CONTRACTS
Contracting Party Date of Contract Purpose of Contract
Kwik Wash Laundries, November 5, 1990 Coin Operated Laundry
Inc. Equipment
Pac Tel Paging July 10, 1991 Pagers
Waste Management of July 10, 1991 Trash Removal
Southeast Texas
CSC Credit Services, August 25, 1993 Credit Reports
Inc.
CSC Credit Services, July 31, 1992 Lease of Credit Bureau
Inc. Terminal
Minolta Corporation September 24, 1993 Copier
Southwestern Bell October 13, 1993 Yellow Pages Advertising
Yellow Pages, Inc.
Wilson's Professional January 15, 1993 Landscaping
Lawn Service, Inc.
National Bugmobiles, February 1, 1989 Pest Control
Inc.
Corridor Pest Control October 11, 1990 Termite Contract
AT&T Information April 11, 1989 Phone Equipment Lease
Systems, Inc.
EXHIBIT I
Tenant Notification Letter
EXHIBIT I
[Letterhead of Seller]
[Date]
CERTIFIED MAIL/RETURN RECEIPT
REQUESTED AND BY HAND
_____________________________
_____________________________
_____________________________
[Tenant]
Re: Acquisition of Silvermine Apartments
Victoria, Texas (the "Property")
Dear ______________________:
We are pleased to announce that TGM Silvermine Inc. ("TGM") has today
acquired the Property from DMC-Silvermine Apartments Limited. TGM's address
is: c/o TGM Associates L.P., 650 Fifth Avenue, New York, New York 10019.
Your security deposit (including any pet deposit) in the amount of
$ paid in accordance with your lease at the Property ("Lease") has
been transferred to TGM.
From this day forward, all checks payable to the landlord under your
Lease should be made payable to "Silvermine Apartments" at the on-site
manager's office.
Should you have any questions concerning the acquisition of the
Property by TGM, please call Steven Macy at (212) 830-9300.
This notice is being given to you in accordance with Section 92.105 of
the Texas Code.
Very truly yours,
DMC-SILVERMINE APARTMENTS
LIMITED, a Texas limited
partnership
By Dinerstein Interests, 1981, Partnership, a
Texas general partnership, its sole general partner
By ________________
Jack Dinerstein
general partner
Consented to:
TGM Silvermine Inc.
By:
Its:
EXHIBIT J
FIRPTA
NON-FOREIGN AFFIDAVIT
Section 1445 of the Internal Revenue Code provides that the transferee
of a U.S. real property interest must withhold tax if the transferor is a
foreign person. To inform the transferee that withholding of tax is not
required upon the disposition of a U.S. real property interest by
DMC-Silvermine Apartments Limited, a Texas limited partnership
("Seller"), Seller hereby certifies the following: (1) Seller is not a
foreign corporation, foreign partnership, foreign trust, or foreign estate
(as those terms are defined in the Internal Revenue Code and Income Tax
Regulations); (2) the U.S. employer identification number for Seller is
36-3112873; (3) the office address for Seller is 6363 Woodway, Houston,
Texas 77057; and (4) the Internal Revenue Service has not issued any notice
with respect to Seller or listed Seller as a person whose affidavit may not
be relied upon for purposes of Section 1445 of the Internal Revenue Code.
Seller understands that this certification may be disclosed to the
Internal Revenue Service by the transferee and that any false statement
contained herein could be punished by fine, imprisonment or both.
The undersigned declares that I have examined this certification, and,
to the best of my knowledge and belief, it is true, correct and complete, and
I further declare that I have authority to sign this document on behalf of
Seller.
The certifications contained herein shall only be enforceable against
the property of Seller. By its acceptance of this Affidavit, the transferee
hereby (i) agrees to look solely to the property of Seller, and (ii) waives
any claim or any right hereunder against any of the partners of Seller or any
affiliate thereof, in their personal or corporate capacities.
Dated: November 29, 1994
DMC-SILVERMINE APARTMENTS LIMITED, a Texas
limited partnership
By Dinerstein Interests, 1981, Partnership, a
Texas general partnership, its sole general
partner
By _________________________
Jack Dinerstein
general partner
