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)September 1, 1995
DEAN WITTER REALTY GROWTH PROPERTIES, L.P.
(Exact name of registrant as specified in its charter)
Delaware 0-18151 13-3286866
(State or other jurisdiction (Commission (I.R.S. Employer
of incorporation) File Number) Identification No.)
Two World Trade Center, New York, New York 10048
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code (212) 392-1054
(Former name or former address, if changed since last report)
<PAGE>
Item 2. Acquisition or Disposition of Assets
In August 1995, the Partnership entered into an Agreement of Sale with
Hill Partners, Inc., an unaffiliated party, to sell the warehouse and five
parcels of land which it owns at Braker Center. The negotiated minimum
sales price is approximately $8.2 million. The closing of the sale of the
warehouse and one parcel of land, for a purchase price of approximately
$5,924,000, less closing costs, took place on September 1, 1995. The
closings of the sales of three of the remaining parcels of land are
scheduled to occur in October 1995 and February 1996. The closing of the
sale of the final parcel of land (the "retail" parcel) is scheduled to
occur in February 1997.
Pursuant to the Agreement of Sale, the Partnership may continue to
market the retail parcel prior to the closing date of the sale of that
parcel. If the retail parcel is sold to a third party, the excess of the
proceeds from such sale over the purchase price otherwise to be paid by
Hill Partners, Inc. will be divided between the Partnership and Hill
Partners, Inc.
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 hereunto duly authorized.
DEAN WITTER REALTY GROWTH PROPERTIES, L.P
By: Dean Witter Realty Growth Properties Inc.
Managing General Partner
By: /s/E. Davisson Hardman, Jr.
E. Davisson Hardman, Jr.
President
Date: September 15, 1995
<PAGE>
Item 7. Financial Statements and Exhibits
Exhibits
(2) Agreement of Sale, dated August 3, 1995, with respect to the sale of
the warehouse and the undeveloped land at Braker Center.
<PAGE>
AGREEMENT OF SALE
THIS AGREEMENT OF SALE (this "Agreement") is made and entered
into by and between L.S. BRAKER ASSOCIATES, a Texas general
partnership (hereinafter referred to as "SELLER") and HILL PARTNERS,
INC. a Texas corporation (hereinafter referred to as "BUYER").
W I T N E S S E T H:
WHEREAS, SELLER is the owner of those certain parcels of land
located in Travis County, Texas, as more particularly described on
Exhibit "A-1" (herein referred to as "Braker K"), Exhibit "A-2" (herein
referred to as "Braker N"), and Exhibit "A-3" (the various parcels
described on Exhibit A-3 being referred to as "Lot 2," "Lot 3A," "Lot
6," and "Lot 7", respectively) attached hereto and made a part hereof
for all purposes (collectively, the "Land"). The Land specifically
does not include the property more particularly described on Exhibit
"B" which is commonly referred to as "Braker M"; and
WHEREAS, BUYER desires to purchase the Property (defined below)
from SELLER and SELLER desires to sell the Property to BUYER, all upon
the following terms, covenants, and conditions.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and agreements set forth herein, and subject to all of the
following terms, provisions and conditions, SELLER and BUYER agree as
follows:
1.Purchase and Sale. SELLER shall, on the date of the
respective Closings (defined below) sell, assign, transfer, grant and
convey to BUYER, and for the applicable Purchase Price set forth below
BUYER shall purchase from SELLER, by good and sufficient special
warranty deed (the "Deed"), upon all of the terms, covenants and
conditions set forth in this Agreement, good and indefeasible fee
simple title to the applicable portions of the Property (hereinafter
defined), together with the rights and appurtenances thereto belonging
and any right, title and interest of SELLER in and to adjacent streets,
alleys and rights-of-way to the centerline thereof, subject only to
those matters expressly permitted herein. The "Property" consists of
the following described property:
(a)the Land;
(b)all improvements ("Improvements") on the Land, it being
acknowledged that Braker K is improved with an approximately
150,092 square foot warehouse building, Braker N is improved
with a surface parking area, and the remaining parcels are not
improved with any buildings or other major improvements;
(c)all of SELLER's right, title and interest in and to all
leases (the "Leases") affecting the Property (being the Dell
Building Lease, and the Parking Lot Lease, as hereinafter
defined), and all tenant security deposits, if any, held by
SELLER pursuant to the Leases;
(d)All of SELLER's right, title and interest, if any, in and to
all plans and specifications, appraisals, site plans, surveys,
soil and substrata studies, architectural drawings, engineering
plans and studies, floor plans, landscape plans and other plans
or studies of any kind which relate to the Land or the
Improvements, and all building permits, certificates of
occupancy, licenses or permits and other property or rights
relating to the operation, ownership, construction, repair or
maintenance of the Improvements;
(e)All intangible property owned by SELLER, if any, and used in
connection with the Land and the Improvements which consists of
only development entitlements, telephone numbers, contract
rights and other agreements (the "Intangible Property");
Intangible Property specifically does not include any cash or
bank accounts related to the Property.
(f)all of SELLER's right, title and interest in all appliances,
fixtures, equipment, machinery, furniture, carpet, drapes and
other tangible personal property, if any, located on or about
the Land and Improvements or used exclusively in the operation
and maintenance thereof including the rights, if any, of Seller
in and to any assignable guarantees, warranties, or similar
rights directly associated therewith (the "Personal Property");
and
(g)all easements, if any, benefiting the Parcels or the
Improvements.
2.Purchase Prices. The "Purchase Price" (herein so-called)
payable by BUYER to SELLER for each of the various portions of the
Property shall be as follows:
(a)As to Braker K (including the Improvements thereon), the
"Purchase Price" shall be $5,535,173.00.
(b)As to Braker N (including the Improvements thereon), the
"Purchase Price" shall be an amount equal to the product of
$2.50 multiplied by the number of gross square feet of land in
Braker N, as determined by the Survey (defined below). The
parties believe the Braker N Purchase Price will be
approximately $387,684.00.
(c)As to each of Lots 2, 6, 7, and 3A, the Purchase Price for
the Lot in question shall be an amount equal to the product of
$2.10 multiplied by the number of gross square feet of land
contained in the applicable Lot as determined by the Survey.
The parties believe that the Purchase Price for Lots 2, 6, and
7 will be approximately $1,733,195 in the aggregate, and that
the Purchase Price for Lot 3A will be approximately
$561,022.00.
In all cases the Purchase Price for the portion of the Property in
question shall be paid in cash or immediately available funds at the
applicable Closing.
3.Contract Consideration.
(a) Promptly upon the execution of this Agreement by BUYER and
SELLER, BUYER shall deliver to the Title Company (as
hereinafter defined) the sum of $25,000.00 (the "Deposit") in
cash or by a check backed by good funds in the drawer's
account. If a check is used it shall be immediately cashed by
the Title Company and the proceeds thereof shall be the
Deposit. SELLER shall not be bound hereby until the Deposit is
received by the Title Company. If the Braker K and Braker N
Closing has not yet occurred, then on or before August 1, 1995,
BUYER shall increase the Deposit by $25,000.00 to a total of
$50,000.00 (plus the amount of interest that may then be
accrued on the original Deposit). Simultaneously with, and
only in the event of the Braker K and Braker N Closing, Buyer
shall increase the Deposit to a total of $100,000.00 (plus the
amount of interest that may then be accrued on the original
Deposit as supplemented). All of the Deposit shall be
deposited by the Title Company promptly upon receipt into an
interest-bearing account, and all interest earned thereon shall
be retained in such account and treated as an additional
Deposit for all purposes hereof. All interest earnings on the
Deposit shall be reported to the Internal Revenue Service for
the account of BUYER (Taxpayer I.D. No. __________).
(b)The Deposit shall not be applied or credited against the
Purchase Price of any portion of the Property until the Closing
of the final portion of the Property to be purchased. At the
Closing in which BUYER purchases all remaining unpurchased
Property, the Deposit shall be applied toward the payment of
the Purchase Price therefor.
(c)Anything to the contrary herein notwithstanding, it is
expressly agreed that the Deposit (or the portion that has been
put up by BUYER at any relevant time) is consideration paid for
the execution of this Agreement and shall not be refundable to
BUYER under any circumstances whatsoever (including, without
limitation, termination of this Agreement by BUYER during the
Inspection Period, as a result of BUYER's disapproval of the
Title Commitment (defined below) or Survey, or as a result of
the failure of any condition or contingency to be satisfied),
except (i) where SELLER defaults in the performance of its
obligations to BUYER hereunder as provided for in Section 16
hereof; or (ii) if an estoppel certificate cannot be obtained
from the tenant under the Dell Building Lease or the Parking
Lease by the Braker K Closing Date. If such estoppel
certificates cannot be obtained by the Braker K Closing Date,
then BUYER may either (i) terminate this Agreement, upon which
termination the Deposit shall be returned to BUYER by the Title
Company; or (ii) waive the estoppel certificate requirement.
4.Closings. The closing of the sale and purchase of the
respective portions of the Property (each a "Closing" and collectively
the "Closings") hereunder shall take place at Heritage Title Company,
Inc., 98 San Jacinto Boulevard, Suite 40, Austin, Texas 78701, (the
"Title Company"), or at such other place agreed to by SELLER and BUYER,
on the date (each a "Closing Date") specified therefor below, or such
earlier date as may be mutually agreed by BUYER and SELLER. The
respective Closing Dates for the portions of the Property shall be as
follows:
(a)As to Braker K and Braker N, September 1, 1995;
(b)As to Lots 6 and 7, the first business day that is at least
sixty (60) calendar days after the expiration of the Inspection
Period (hereinafter defined);
(c)As to Lot 2, the first business day that is at least 180
calendar days after the Braker K and Braker N Closing; and
(d)As to Lot 3A, the first business day that is at least 545
calendar days after the Braker K and Braker N Closing.
5.Seller's Obligations at each Closing. At each Closing, SELLER
shall deliver or cause to be delivered to BUYER the following:
(i)Special Warranty Deed conveying title to the applicable portion
of the Land and Improvements to BUYER, subject to the
"Permitted Exceptions" (as hereinafter defined) applicable
thereto;
(ii)Where applicable, a Bill of Sale assigning to BUYER the
Personal Property associated with the portion of the Land being
conveyed;
(iii)At the Braker K and Braker N Closings, an Assignment of Leases
assigning to BUYER all of SELLER's right, title and interest,
if any, to the Leases affecting the portions of the Land being
sold;
(iv)An irrevocable commitment (either in the form of a "marked"
title binder or an instruction letter accepted by the Title
Company) from the Title Company to issue to BUYER, at SELLER's
expense, promptly after the Closing, an Owner Policy of Title
Insurance in an amount equal to the Purchase Price applicable
to the portion of the Property as described in Paragraph 2
hereof;
(v)A certificate of Non-Foreign Status, in a form complying with
Section 1445 of the Internal Revenue Code of 1986, as amended,
and the regulations promulgated pursuant thereto;
(vi)All architectural and engineering drawings, utilities layout
plans, topographical plans and the like, if any, in SELLER's
possession and relating to the applicable portion of the
Property.
(vii)Originals or copies of all books, records and files maintained
by SELLER's property manager relating to the leasing, operation
and maintenance of the applicable portion of the Property, if
any, as well as any keys to locks within any Improvements that
may be in SELLER's possession.
(viii)All permits, entitlements, plans and specifications,
environmental studies, appraisals and surveys, if any, relating
to the applicable portion of the Property being conveyed;
(ix)Such other documents as counsel to SELLER and BUYER may
mutually agree are necessary or appropriate to carry out the
intents and purposes of this Agreement; and
(x)Possession of the portion of the Property being sold at such
Closing.
6.BUYER'S Obligations at each Closing. At each Closing BUYER
shall deliver or cause to be delivered to SELLER:
(i)funds available for immediate disbursement at the Closing in an
amount equal to the Purchase Price applicable to the portion(s)
of the Property being sold, as adjusted for prorations of
expenses as provided herein; and
(ii)where applicable, a counterpart of the Bill of Sale and the
Assignment of Leases, each executed by BUYER for the purpose of
assuming, and indemnifying SELLER against, any and all
obligations of the SELLER relating to the Leases and/or the
Personal Property from and after the Closing, including,
without limitation, any and all liabilities of SELLER for or in
respect of security deposits (if any) under any Lease.
(iii)such other documents as counsel to SELLER and BUYER may
mutually agree are necessary or appropriate to carry out the
intents and purposes of this Agreement.
7.Special Agreements Regarding Braker K and Braker N.
(a) Anything to the contrary herein notwithstanding, it is
acknowledged that BUYER'S rights to purchase any portion of the
Property are conditioned upon BUYER closing the purchase of the
Braker K and Braker N portions of the Property on or before
September 1, 1995, TIME BEING OF THE ESSENCE. The parties
recognize that such time period may not permit the completion
of the various inspection periods and due diligence processes
contemplated herein in the manner set out herein (including,
without limitation, review of the title to the Property and
inspection thereof). However, since BUYER or its affiliates
have been intimately involved with the Property for several
years in various capacities, it is the parties' belief that
BUYER will be able to satisfy itself as to such matters within
the time available. The parties agree to proceed in good faith
to attempt to close Braker K and Braker N within such period.
(b)BUYER's obligations with respect to Braker K and Braker N
are expressly contingent upon BUYER obtaining and closing
equity and/or debt financing for its purchase of Braker K and
Braker N on or before the Braker K and Braker N Closing Date.
SELLER will have no obligation to incur liability or expend
money or assets in connection with BUYER's financing, which
shall be the sole responsibility of BUYER. Subject to the
foregoing sentence the parties agree to cooperate in order to
attempt to arrange a Braker K and Braker N Closing within the
available time period. BUYER shall proceed diligently to
attempt to arrange satisfactory financing for Braker K and
Braker N by the Braker K and Braker N Closing Date.
(c)In addition to the other requirements herein, at the
Braker K and Braker N Closing, and as a condition thereto, an
estoppel certificate must be delivered in form and substance
reasonably satisfactory to BUYER with respect to the Dell
Building Lease and the Parking Lease (as such terms are defined
on Schedule 1 attached hereto) from the tenant(s) thereunder.
SELLER and BUYER shall reasonably cooperate to obtain the
necessary certificates from the tenant(s) under the Dell
Building Lease and the Parking Lease, but neither party shall
have liability to the other if such certificate cannot be
obtained. If the estoppel certificates are not obtained, BUYER
shall have the rights provided for in subsection 3(c) hereof.
(d)SELLER represents to BUYER that there are no Leases
affecting Braker K other than the Dell Building Lease and no
Leases affecting Braker N other than the Parking Lease.
8.Special Agreements Regarding Lot 3A. Notwithstanding that the
Property includes Lot 3A, and that BUYER will be obligated to purchase
Lot 3A on the terms hereof if it has not previously been sold prior to
the Lot 3A Closing Date hereunder, it is the mutual preference of BUYER
and SELLER that Lot 3A instead be sold to a third party during the term
of this Agreement and the parties will cooperate in that regard on the
following basis:
(a)SELLER shall have the continuing right to market Lot 3A to
the public, and shall have the right to enter into a contract
and to sell Lot 3A to a third party on terms satisfactory to
SELLER. Any such activity with respect to Lot 3A, including
the sale thereof to a third party, will not be a default by
SELLER hereunder, will not affect BUYER's obligations with
respect to the remainder of the Property, and will not affect
BUYER's obligation to purchase Lot 3A if it remains unsold on
the Lot 3A Closing Date.
(b)BUYER will have the right to propose prospective sales of
Lot 3A to SELLER during the term of this Agreement, but SELLER
will have no obligation to accept any such proposals.
(c)In the event Lot 3A is sold to a third party during the term
of this Agreement, the amount (the "Excess"), if any, by which
the net proceeds of such transaction exceeds the net proceeds
that would be received by Seller if Lot 3A were sold pursuant
to this Agreement to BUYER (at $2.10 per gross square foot)
will be divided between BUYER and SELLER as follows:
(i)If such sale closes and funds within 180 days after the date of
execution of this Agreement, SELLER will pay to BUYER 50% of
the Excess;
(ii)If the sale occurs more than 180 days, but less than 1 year
after the date of execution of this Agreement, SELLER shall pay
to BUYER 40% of the Excess;
(iii)If the sale occurs more than 1 year after the date of execution
of this Agreement, SELLER shall pay to BUYER 30% of the Excess.
The foregoing amounts, if any, payable to BUYER shall be in
lieu of any commission or other compensation that might
otherwise be payable to BUYER with respect to its participation
in any such sale, but shall be payable to BUYER whether or not
BUYER is a procuring cause of the transaction in question.
(d)Notwithstanding the foregoing, SELLER's right to market and
sell Lot 3A to a third party shall terminate ninety (90) days
before the Lot 3A Closing Date, after which SELLER may not sell
Lot 3A to a third party without BUYER's consent.
9.Title and Survey Review.
(a)Within fifteen (15) days after BUYER places the initial
Deposit with the Title Company, SELLER shall, at SELLER's sole
cost and expense cause the Title Company to issue, and deliver
to SELLER and BUYER a commitment for an Owner Policy of Title
Insurance in favor of BUYER covering the Property (the "Title
Commitment"), which Title Commitment shall be dated subsequent
to the date of this Agreement and shall be accompanied by
copies of all recorded documents relating to easements, rights-
of-way, and other matters affecting title thereto. The Title
Commitment shall address each parcel of the Property
separately.
(b)Within fifteen (15) days after BUYER places the initial
Deposit, SELLER shall, at SELLER's expense deliver to BUYER a
survey of the Property (the "Survey"). The Survey shall be
prepared by a licensed surveyor or engineer, shall be certified
to BUYER, SELLER and the Title Company, and shall otherwise be
in a form acceptable to the Title Company to permit, at BUYER's
sole cost and election, modification of the survey exception to
the Owner Policy of Title Insurance to be delivered to BUYER at
the Closings to read "shortages in area" only. The Survey
shall indicate each parcel of the Property separately.
(c)BUYER shall, within ten (10) days after receipt of the Title
Commitment and Survey, give SELLER written notice of any
objections to title to the Property or any portion thereof.
BUYER's failure to timely give such written notice of objection
shall be deemed to be BUYER's approval of the Title Commitment
and the Survey and all matters shown therein as applicable to
a portion of the Property and not objected to by BUYER shall be
deemed approved by BUYER for all purposes hereof and shall be
the "Permitted Exceptions" applicable to such portion of the
Property.
(d)In the event BUYER objects to any of the items or matters
shown in the Title Commitment or Survey SELLER may undertake,
but shall not be obligated to undertake, to eliminate or modify
all such matters to which BUYER has objected to the reasonable
satisfaction of BUYER within fifteen (15) days after receipt of
BUYER's objections. Notwithstanding the foregoing, SELLER
shall be obligated to discharge SELLER's mortgage indebtedness
on the respective portions of the Property at the applicable
Closing and convey the portion of the Property in question free
and clear of mortgage liens. In the event SELLER elects not to
or fails to eliminate or modify such matters to which BUYER has
objected on or before the end of such fifteen (15) day period,
BUYER shall have the right to terminate this Agreement by
written notice to SELLER given within five (5) days after
expiration of such fifteen (15) day period, whereupon the
Deposit shall be paid over to SELLER as independent
consideration for the execution of this Agreement. If BUYER
fails to terminate this Agreement within such five (5) day
period, BUYER shall be deemed to have waived any remaining
unsatisfied objections, and any such remaining matters shall
thereafter be deemed approved by BUYER and shall be "Permitted
Exceptions" for all purposes. Mortgage liens shall not be
"Permitted Exceptions". In any such event no adjustment shall
be made in the Purchase Price, unless hereafter otherwise
agreed in writing by the parties hereto.
(e)BUYER and SELLER agree that the termination rights of the
parties under this Section (as well as all other portions of
the Agreement, whether specified as such or not) are applicable
on an "all-or-none" basis as to all remaining Property that has
not been purchased by BUYER, and unless the parties mutually
otherwise agree neither party shall be permitted to terminate
this Agreement as to a portion of the Property.
10.Inspection Period.
(a)BUYER shall have a period (the "Inspection Period")
beginning on the effective date of this Agreement and ending on
the earlier of (i) September 1, 1995, or (ii) the Braker K and
Braker N Closing Date, within which to examine the Property and
each portion thereof to determine its adequacy for BUYER'S
needs. In the event BUYER objects, in its sole discretion, on
or before the end of the Inspection Period, to the results of
Studies (as defined below), or otherwise determines that the
Property is unacceptable to BUYER, BUYER shall have the right
to terminate this Agreement, in its sole discretion, by written
notice to SELLER on or before the end of the Inspection Period,
whereupon the portion of the Deposit which has theretofore been
put up by BUYER shall be paid over to SELLER as independent
consideration for the execution of this Agreement. In the
event BUYER fails to notify SELLER of the termination of this
Agreement prior to the end of the Inspection Period BUYER shall
have no further rights to terminate this Agreement pursuant to
this Section.
(b)During the Inspection Period, BUYER, at its sole cost and
expense, shall have the right, subject to the rights of the
tenants under the Leases, to conduct such environmental,
engineering, or other reasonable studies on the Property
(collectively referred to as the "Studies") which BUYER deems
appropriate in its sole discretion, and to go on the Property
for the purpose of conducting the Studies. BUYER agrees to
avoid causing any damage to the Property or any portion thereof
in connection with such Studies, to the maximum extent
reasonably practicable, and to pay promptly any and all costs
and expenses incurred by BUYER in connection with the Studies,
and to allow no liens to accrue or become affixed against the
Property or any portion thereof on account of the Studies.
Further, BUYER shall be responsible for any damages or costs
caused by the persons conducting the Studies in the exercise of
BUYER's rights to do so hereunder, including BUYER, its
employees, contractors or agents, and BUYER agrees to indemnify
and hold SELLER harmless from any and all liens, claims,
damages, demands, suits, actions or causes of action arising
out of or in connection with BUYER's exercise of its rights to
conduct the Studies hereunder. BUYER further agrees that it
shall not interfere with the reasonable use of the Property by
SELLER or any tenant during the Inspection Period. In the
event BUYER terminates this Agreement prior to the Closing
pursuant to any provision hereof, or fails to consummate the
Closing of the transactions provided for in this Agreement for
any other reason, BUYER agrees to provide to SELLER copies of
any and all reports of the Studies regarding the Property
prepared pursuant to this Section.
(c)Notwithstanding the foregoing, BUYER shall not conduct any
environmental tests that involve drilling or core samples, or
any other so-called "Phase II" environmental testing, without
the prior written permission of SELLER, which permission shall
not be unreasonably withheld.
(d)To assist BUYER in its evaluation of the Property, within
ten (10) days after the execution of this Agreement SELLER will
provide to BUYER a copy of each Lease and each environmental,
engineering, and soils report, if any, regarding the Property
(to the extent that SELLER has a copy of such report and has
not previously provided it to BUYER).
(e)The obligations of BUYER to SELLER under the foregoing
provisions of this Section shall survive Closing and/or any
termination of this Agreement.
11.Owner's Title Policy. At each Closing SELLER shall cause to
be furnished to BUYER a standard Owner Policy of Title Insurance as
used in the State of Texas, issued by the Title Company, insuring the
good and indefeasible fee simple title of BUYER to the portion of the
Property being transferred and in the amount of the applicable Purchase
Price. The cost of such Owner Policy of Title Insurance shall be paid
by SELLER, but if BUYER elects to have the survey exception amended to
read "shortages in area" only, the additional premium for such
modification shall be paid by BUYER. The only "Permitted Exceptions"
(herein so-called) to said Owner Policy of Title Insurance shall be as
follows:
(a)The standard printed exceptions contained therein, provided,
however, (i) the exception relating to restrictive covenants
shall specifically describe all recorded restrictive covenants;
(ii) at the election and sole cost of BUYER, the survey
exception shall be modified to read "shortages in area" only;
(iii) the exception for taxes shall be limited to standby fees
and taxes for the year of Closing and subsequent years and
subsequent assessments for prior years due to change in land
usage or ownership; and (iv) there shall be no exception for
the rights of parties in possession;
(b)Any other matters approved in writing by BUYER (or deemed
approved pursuant to the provisions hereof) and/or exceptions
or liens caused by the actions of BUYER.
12.Expenses; Prorations.
(a)Real estate taxes relating to the portion of the Property
being conveyed shall be prorated at the applicable Closing
between the parties hereto as of the date of the Closing,
except in the case of taxes payable directly by the tenant
under a Lease, if applicable, as to which no proration shall be
made and the BUYER will cause the tenant to pay the taxes on
the Property. If the Closing shall occur before the tax rate
is fixed for the year of Closing, the apportionment of real
estate taxes shall be upon the basis of real estate taxes for
the preceding year and a cash adjustment shall be made between
the parties at such time as the real estate tax statements for
the year of Closing are available. Each party shall pay for
its own attorneys' fees. Recording costs and the Title Company
fees and charges shall be shared equally by the parties,
except: (i) the basic cost of the Owner Policy of Title
Insurance covering the Property shall be paid by SELLER; (ii)
the cost of the modification of the survey exception to read
"shortages in area" only, if elected by BUYER, shall be paid by
BUYER; and (iii) any costs or charges associated with any
financing and/or equity investment that BUYER may utilize shall
be borne solely by BUYER.
(b)Except for delinquent rent, all rent under the Leases shall
be prorated to the date of the applicable Closing. Delinquent
rent shall not be prorated but shall remain the property of
SELLER. Payments received from tenants from and after the date
of Closing shall be applied first to rents then due for the
current period and then to rents applicable to periods prior to
the date of Closing, with payments in respect of expenses being
prorated over the periods to which they relate, whether payable
monthly, quarterly, annually, or otherwise. BUYER shall use
reasonable efforts to collect rents and other sums attributable
to periods prior to Closing, whether delinquent or otherwise,
for the benefit of SELLER, and shall cooperate with SELLER in
the collection of any such amounts, but shall not be required
to file suit against any tenant in connection therewith.
(c)The amount of any security deposits held by SELLER under any
Lease shall be credited to BUYER, and BUYER shall assume the
liability of SELLER with respect thereto and indemnify SELLER
regarding such liability. Any utility deposits and other types
of performance deposits with respect to the Property paid by or
on behalf of SELLER shall be paid to SELLER by BUYER at Closing
to the extent the same are assignable and refundable.
(d)All other income and ordinary operating expenses for or
pertaining to the Property, including, but not limited to,
public utility charges, maintenance and service charges and all
other normal operating charges of the Property not otherwise
provided for herein, shall be prorated between SELLER and BUYER
as of the Closing. In the event any accrued and unpaid
expenses (as of the Closing Date) are paid subsequent to the
Closing Date by BUYER, SELLER shall promptly reimburse BUYER by
an amount equal to such accrued and unpaid expenses, or in the
event SELLER has prepaid any expenses relating to a period of
time subsequent to the Closing Date, SELLER shall receive a
credit or a post-closing adjustment payment therefor from
BUYER.
(e)Notwithstanding anything in this Agreement to the contrary,
at the Closing of each portion of the Property, SELLER shall
terminate any and all management agreements affecting such
portion of the Property at no cost, expense or liability to
BUYER or the Property.
13.Representations and Disclaimer.
(a)SELLER represents and warrants to BUYER, as of the date
hereof, that:
(i)To the best of SELLER's knowledge, SELLER has not received any
written notice of any violation of any ordinance, regulation,
law or statute from any governmental agency regarding the
Property which has not been complied with or disclosed to
BUYER, including, without limitation, any notice requiring any
remediation of any environmental conditions existing on the
Property.
(ii)To the best of SELLER's knowledge, (A) there are no pending
condemnation actions with respect to the Property, nor (B) has
SELLER received any notice of any such actions being
contemplated.
(iii)There are no options, purchase contracts or other agreements,
written or oral, whereunder or whereby any person has any
right, title or interest in, or right to acquire, the Property.
(iv)SELLER has the full right and authority to enter into this
Agreement and to consummate the sale, transfer and assignment
contemplated herein, and the person or persons signatory to
this Agreement and any document executed pursuant hereto on
behalf of SELLER have full power and authority to bind SELLER.
No consent or authorization from any court or governmental
authority is required to permit SELLER to consummate the sale
of the Property contemplated hereby.
(v)To the best of SELLER's knowledge, there is no litigation,
action or proceeding pending or threatened, against the
Property which would in any manner constitute a lien, claim, or
obligation of any kind against the Property.
(vi)Except for the Dell Building Lease and the Parking Lease, there
are no Leases affecting, or parties in possession of, any
portion of the Property.
(b)BUYER represents and warrants to SELLER, as of the date
hereof, that BUYER has the full right and authority to enter
into this Agreement and to consummate the sale, transfer and
assignment contemplated herein, and the person or persons
signatory to this Agreement and any document executed pursuant
hereto on behalf of BUYER have full power and authority to bind
BUYER. No consent or authorization from any court or
governmental authority is required to permit BUYER to
consummate the sale of the Property contemplated hereby.
(c)WITH RESPECT TO EACH PORTION OF THE PROPERTY, THE FOREGOING
REPRESENTATIONS OF SELLER SHALL SURVIVE FOR A PERIOD OF SIX
MONTHS AFTER THE CLOSING OF THE APPLICABLE PORTION OF THE
PROPERTY, AND NONE OF SUCH REPRESENTATIONS AND WARRANTIES SHALL
BE MERGED INTO THE RESPECTIVE DEED.
(d)BUYER ACKNOWLEDGES AND AGREES THAT SELLER HAS NOT MADE, DOES
NOT MAKE AND SPECIFICALLY NEGATES AND DISCLAIMS ANY
REPRESENTATIONS, WARRANTIES (OTHER THAN THE SPECIAL WARRANTY OF
TITLE AS SET OUT IN THE DEED OR AS EXPRESSLY SET FORTH HEREIN),
PROMISES, COVENANTS, AGREEMENTS OR GUARANTIES OF ANY KIND OR
CHARACTER WHATSOEVER, WHETHER EXPRESS OR IMPLIED, ORAL OR
WRITTEN, PAST, PRESENT, OR FUTURE, OF, AS TO, CONCERNING OR
WITH RESPECT TO EACH PORTION OF THE PROPERTY. SPECIFICALLY, BUT
WITHOUT LIMITATION, OTHER THAN AS SPECIFICALLY SET FORTH
HEREIN, SELLER HAS NOT MADE, DOES NOT MAKE AND SPECIFICALLY
DISCLAIMS ANY REPRESENTATIONS REGARDING (A) COMPLIANCE WITH ANY
ENVIRONMENTAL PROTECTION, POLLUTION OR LAND USES LAWS, RULES,
REGULATIONS, ORDERS OR REQUIREMENTS, INCLUDING THE EXISTENCE IN
OR ON THE PROPERTY OR ANY PORTION THEREOF OF ANY HAZARDOUS
MATERIALS OR CONDITIONS AFFECTED BY ENVIRONMENTAL LAWS; (B) THE
SUITABILITY OF ANY PORTION OF THE PROPERTY FOR ANY AND ALL USES
WHICH BUYER MAY CONDUCT THEREON AND (C) THE HABITABILITY,
MERCHANTABILITY, MARKETABILITY, PROFITABILITY OR FITNESS FOR A
PARTICULAR PURPOSE OF ANY PORTION OF THE PROPERTY. BUYER
FURTHER ACKNOWLEDGES AND AGREES THAT HAVING BEEN GIVEN THE
OPPORTUNITY TO INSPECT EACH PORTION OF THE PROPERTY DURING THE
INSPECTION PERIOD, BUYER IS RELYING SOLELY ON ITS OWN
INVESTIGATION OF EACH PORTION OF THE PROPERTY AND NOT ON ANY
INFORMATION PROVIDED OR TO BE PROVIDED BY SELLER. BUYER AGREES
TO ACCEPT EACH PORTION OF THE PROPERTY AND HEREBY WAIVES AND
RELEASES SELLER FROM ALL OBJECTIONS OR CLAIMS AGAINST SELLER
ARISING FROM OR RELATED TO THE PROPERTY OR ANY PORTION THEREOF
OR TO ANY HAZARDOUS MATERIALS ON ANY PORTION OF THE PROPERTY,
WHETHER BY CONTRACT, UNDER LAW, UNDER ANY RIGHT OF
CONTRIBUTION, OR OTHERWISE.
(e)BUYER FURTHER ACKNOWLEDGES AND AGREES THAT ANY INFORMATION
PROVIDED OR TO BE PROVIDED WITH RESPECT TO EACH PORTION OF THE
PROPERTY WAS OBTAINED FROM A VARIETY OF SOURCES AND THAT SELLER
HAS NOT MADE ANY INDEPENDENT INVESTIGATION OR VERIFICATION OF
SUCH INFORMATION AND MAKES NO REPRESENTATIONS AS TO THE
ACCURACY OR COMPLETENESS OF SUCH INFORMATION. SELLER IS NOT
LIABLE OR BOUND IN ANY MANNER BY ANY VERBAL OR WRITTEN
STATEMENTS, REPRESENTATIONS OR INFORMATION PERTAINING TO ANY
PORTION OF THE PROPERTY, OR THE OPERATION THEREOF, FURNISHED BY
ANY REAL ESTATE BROKER, AGENT, EMPLOYEE, SERVANT OR OTHER
PERSON EXCEPT AS SPECIFICALLY SET FORTH IN THIS AGREEMENT.
(f)BUYER FURTHER ACKNOWLEDGES AND AGREES THAT TO THE MAXIMUM
EXTENT PERMITTED BY LAW, THE SALE OF EACH PORTION OF THE
PROPERTY AS PROVIDED FOR HEREIN IS MADE ON AN "AS IS" CONDITION
AND BASIS WITH ALL FAULTS. IT IS UNDERSTOOD AND AGREED THAT THE
PURCHASE PRICE HAS BEEN NEGOTIATED BASED ON THE FACT THAT EACH
PORTION OF THE PROPERTY IS SOLD BY SELLER AND PURCHASED BY
BUYER SUBJECT TO THE FOREGOING.
14.Brokers and Commissions.
(a)Each party ("Indemnitor") represents and warrants to the
other party ("Indemnitee") that except for Hill Partners, Inc.
("Broker") there are no brokers involved in this transaction
acting for and on behalf of Indemnitor for which a brokerage
commission would be due, and agrees to indemnify and hold
Indemnitee harmless from any and all claims for real estate or
brokerage commissions arising out of this transaction from any
broker or brokers purporting to have acted on behalf of
Indemnitor. At the Closing of each parcel of the Property and
conditioned upon the actual Closing of the sale and payment of
the Purchase Price therefor by BUYER to SELLER, SELLER shall be
responsible for the payment of a commission to Broker in an
amount equal to one-half of one percent (0.50%) of the
applicable Purchase Price.
(b)BUYER acknowledges that Broker has advised BUYER that BUYER
should have an abstract covering the Property examined by an
attorney of Buyer's selection, or BUYER should be furnished
with or obtain a policy of title insurance covering the
Property.
15.Non-Assignability. This Agreement may not be assigned by
BUYER without the express written consent of SELLER, which consent may
be withheld by SELLER for any reason whatsoever; however, at any
particular Closing BUYER may designate a partnership or other entity
in which BUYER or an affiliate of BUYER which is under the managerial
control of the principals of BUYER or an affiliate thereof as the
designee of BUYER for the purchase of the portion of the Property in
question. Any such designee shall be the grantee of the Deed to such
portion of the Property, shall be the insured under the Title Policy
for the portion of the Property in question, and shall be the
beneficiary of any continuing covenants of SELLER relating to the
portion of the Property in question; provided that such designee shall
not succeed to the rights or obligations of BUYER with respect to any
other portion of the Property, and further provided that as a condition
thereto the designee shall execute an assumption of any on-going
obligations of the BUYER hereunder in respect of the portion of the
Property in question.
16.Defaults and Remedies.
(a)In the event SELLER shall fail to consummate the sale of the
Property or a portion thereof for any reason, except BUYER's
default or the timely and proper termination of this Agreement
by BUYER pursuant to any of the provisions hereof, BUYER may,
at its option and as its sole remedy, either: (i) terminate
this Agreement, upon which termination the Deposit shall be
returned to BUYER by the Title Company; or (ii) enforce
specific performance of this Agreement.
(b)In the event BUYER should fail to consummate the purchase of
the Property for any reason, except SELLER's default or the
timely and proper termination of this Agreement by BUYER
pursuant to any of the provisions hereof, SELLER, as SELLER's
sole remedy for BUYER's breach of this Agreement, may terminate
this Agreement by written notice given to BUYER and the Title
Company, in which case the Deposit shall be paid over to SELLER
as liquidated and agreed damages. Nothing in the foregoing
provision shall limit SELLER's rights as provided elsewhere
herein to receive the Deposit in other circumstances where
BUYER is not in default hereunder.
(c)In the event either party becomes entitled to the Deposit in
accordance with the terms of this Agreement the Title Company
is hereby authorized to immediately pay the Deposit and all
interest accrued thereon to the party so entitled thereto. In
the event the Title Company requires same, BUYER and SELLER
covenant and agree to deliver a letter of instruction to the
Title Company directing the disbursement of the Deposit to the
party entitled thereto and indemnifying the Title Company
against any and all claims arising out of such payment. In the
event either party hereto fails or refuses to sign or deliver
such an instruction letter when the other party is entitled to
such disbursement, then the party so failing or refusing to
sign or deliver such letter shall pay, upon the final order of
the court with appropriate jurisdiction that such other party
is entitled to such disbursement, all reasonable attorney's
fees and expenses incurred by the party so entitled to such
disbursement in connection with its recovery thereof and
interest on such amount disbursed at the maximum rate allowed
by state or federal law from the date of refusal to sign such
requested release of funds.
(d) If this Agreement is terminated as a result of a default
by either party subsequent to a Closing, the rights and
obligations of the parties with respect to portions of the
Property previously closed shall continue to exist
notwithstanding such termination, but BUYER shall have no
further rights to purchase portions of the Property not
theretofore closed.
17.Miscellaneous.
(a)Notices. Any notice to be given or to be served upon any
party hereto, in connection with this Agreement, must be in
writing, and given by either certified or registered mail, and
shall be deemed to have been given and received when a
certified or registered letter containing such notice, properly
addressed, with postage prepaid, is deposited in the United
States mail, and if given otherwise than by certified or
registered mail, it shall be deemed to have been given when
delivered to and received by the party to whom it is addressed.
Such notices shall be given to the parties hereto at the
following addresses:
If to SELLER:
C/O Dean Witter Realty, Inc.
Two World Trade Center
New York, New York 10048
Attn: Mr. John McNamara
Fax: 212/392-3123
With copies to:
Charles W. Morris, Esq.
Brown McCarroll & Oaks Hartline
300 Crescent Court
Suite 1400
Dallas, Texas 75201-6929
FAX: 214/999-6170
If to BUYER:
Hill Partners, Inc.
2800 Industrial Terrace
Austin, Texas 78759
FAX: 512-835-1222
With copies to: David P. Crist, Esq.
98 San Jacinto Blvd.
Austin, TX 78701
FAX: 512-477-2385
Any party hereto may, at any time by giving five (5) days'
written notice to the other party hereto, designate any other
address in substitution of the foregoing address to which such
notice shall be given. Any notice required or permitted to be
delivered hereunder may also be given by facsimile transmission
or by any courier service which guarantees overnight, receipted
delivery. Any notice given to the proper address will be
deemed to have been received on the earlier of: (i) actual
receipt, or (ii) the first business day following deposit with
an overnight courier service which guarantees receipted
delivery.
(b)Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Texas,
and the obligations of the parties created hereunder are
performable in Travis County, Texas.
(c)Binding Effect. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective
successors and assigns.
(d)No Waiver. One or more waivers of any covenant, term or
condition of this Agreement by either party shall not be
construed as a waiver of a subsequent breach of the same or any
other covenant, term or condition; nor shall any delay or
omission by either party to seek a remedy for any breach of
this Agreement or to exercise a right accruing to such party by
reason of such breach be deemed a waiver by such party of its
remedies or rights with respect to such breach.
(e)Severability. In case any one or more of the material
provisions contained in this Agreement shall for any reason be
held to be invalid, illegal or unenforceable in any respect,
this Agreement shall terminate in its entirety and be of no
further force or effect; provided, however, if any one or more
of the non-material provisions contained herein shall for any
reason be held to be invalid, illegal or unenforceable, such
invalidity, illegality or unenforceability shall not effect any
other provision hereof, and this Agreement shall be construed
as if such invalid, illegal or unenforceable nonmaterial
provisions had never been contained herein.
(f)Entire Agreement. This Agreement constitutes the entire
agreement of the parties hereto and supersedes any prior
understandings or written or oral agreements between the
parties respecting the within subject matter, and this
Agreement may be amended or modified only be a written
agreement signed by both parties hereto.
(g)Caption. The descriptive headings of the paragraphs
contained in this Agreement are inserted for convenience only
and shall not control or affect the meaning or construction of
any of the provisions hereof.
(h)Time. Time is of the essence in the performance of the
parties' respective obligations contained in this Agreement.
(i)Expenses and Attorneys' Fees. Except as specifically
provided herein, each party hereto shall bear and pay its own
costs and expenses incurred in connection with the transactions
contemplated by this Agreement, including, but not limited to,
the costs of all investigations and proceedings in connection
herewith and the fees and expenses of their respective counsel,
financial advisors and accountants; provided, however, in the
event that any dispute between the parties hereto should result
in litigation, the prevailing party shall be reimbursed for all
reasonable costs, including, but not limited to, reasonable
attorneys' fees, incurred in connection with such litigation.
(j)Exhibits. All exhibits attached to this Agreement are
hereby incorporated herein and for all purposes made a part
hereof.
(k)Further Assurances.
L.In addition to the obligations required to be performed
hereunder by SELLER prior to or at the applicable Closing,
SELLER agrees to perform such other reasonable acts and to
execute, acknowledge and/or deliver subsequent to the Closing
such other reasonable instruments, documents and other
materials as BUYER may reasonably request in order to
effectuate the consummation of the transactions contemplated
herein and to vest title to the applicable portions of the
Property in BUYER.
(ii)In addition to the obligations required to be performed
hereunder by BUYER prior to or at the applicable Closing, BUYER
agrees to perform such other reasonable acts, and to execute,
acknowledge and/or deliver subsequent to the Closing such other
reasonable instruments, documents and other material, as SELLER
may reasonably request in order to effectuate the consummation
of the transactions contemplated herein.
(l)Counterparts. This Agreement may be executed in any number
of counterparts, each of which shall be deemed an original but
all of which shall constitute one and the same instrument.
(m)Number and Gender. All words herein shall be deemed to
refer to the masculine, feminine or neuter, singular or plural,
as the context may require.
(n)Date of Agreement. When used herein, the phrases "the date
of this Agreement," the "effective date," "the date hereof" or
similar phrases shall mean that date upon which the Title
Company has received a fully executed counterpart of this
Agreement and the initial Deposit.
(o)DTPA WAIVER. BUYER REPRESENTS AND WARRANTS TO SELLER THAT
(A) BUYER IS NOT IN A SIGNIFICANTLY DISPARATE BARGAINING
POSITION, (B) BUYER IS REPRESENTED BY LEGAL COUNSEL, (C) THE
PROPERTY WILL NOT BE USED AS A FAMILY RESIDENCE, (D) BUYER IS
A BUSINESS CORPORATION THAT EITHER HAS ASSETS OF $5,000,000 OR
MORE, OR IS OWNED OR CONTROLLED BY A CORPORATION OR ENTITY WITH
ASSETS OF $5,000,000 OR MORE, OR BUYER IS A SOPHISTICATED REAL
ESTATE INVESTOR AND HAS KNOWLEDGE AND EXPERIENCE IN FINANCIAL
AND BUSINESS MATTERS THAT ENABLE IT TO EVALUATE THE MERITS AND
RISKS OF THIS TRANSACTION. BUYER HEREBY WAIVES TO THE FULLEST
EXTENT PERMITTED BY LAW ANY RIGHTS, REMEDIES AND BENEFITS UNDER
THE TEXAS DECEPTIVE TRADE PRACTICES - CONSUMER PROTECTION ACT
(SECTIONS 17.41 AND FOLLOWING OF THE TEXAS BUSINESS AND
COMMERCE CODE) (THE "DTPA") AND ANY OTHER SIMILAR CONSUMER
PROTECTION LAW, WHETHER FEDERAL, STATE OR LOCAL. BUYER
COVENANTS NOT TO SUE SELLER UNDER THE DTPA OR ANY SUCH SIMILAR
CONSUMER PROTECTION LAW.
(p)Escrow Agent. Title Company (hereinafter in this
subparagraph in its capacity as holder of the Deposit only
being referred to as the "Escrow Agent") shall hold the Deposit
in accordance with the terms and provisions of this Agreement,
subject to the following:
A.The Escrow Agent undertakes to perform only such duties with
respect to the Deposit as are expressly set forth in this
Agreement and no implied duties or obligations with respect to
the Deposit shall be read into this Agreement against Escrow
Agent.
B.In performing its activities hereunder in such capacity,
Escrow Agent may act in reliance upon any writing or instrument
or signature which it, in good faith, believes to be genuine,
and may assume that any person purporting to give any writing,
notice, advice or instrument in connection with the provisions
of this Agreement has been duly authorized to do so. Escrow
Agent shall not be liable in any manner for the sufficiency or
correctness as to form, manner and execution, or validity of
any instrument deposited in escrow, nor as to the identity,
authority, or right of any person executing the same, and
Escrow Agent's duties in such capacity under this Agreement
shall be limited to those provided in this Agreement.
C.Unless Escrow Agent discharges any of its duties under this
Agreement with respect to the Deposit in a negligent manner or
is guilty of willful misconduct with regard to its duties under
this Agreement, SELLER and BUYER shall indemnify Escrow Agent
and hold it harmless from any and all claims, liabilities,
losses, actions, suits or proceedings at law or in equity, or
other expenses, fees, or charges of any character or nature,
which it may incur or with which it may be threatened by reason
of its acting as Escrow Agent with respect to the Deposit under
this Agreement; and in such connection SELLER and BUYER shall
indemnify Escrow Agent against any and all expenses, including
reasonable attorneys' fees and the cost of defending any
action, suit or proceeding or resisting any claim in such
capacity.
D.If the parties (including Escrow Agent) shall be in
disagreement about the interpretation of this Agreement, or
about their respective rights and obligations, or the propriety
of any action contemplated by Escrow Agent with respect to the
Deposit, Escrow Agent may, but shall not be required to, file
an action in interpleader to resolve the disagreement. Escrow
Agent shall be indemnified for all costs and reasonable
attorneys' fees in its capacity as Escrow Agent in connection
with any such interpleader action and shall be fully protected
in suspending all or part of its activities under this
Agreement until a final judgment in the interpleader action is
received.
E.Escrow Agent may consult with counsel of its own choice and
have full and complete authorization and protection in
accordance with the opinion of such counsel. Escrow Agent
shall otherwise not be liable for any mistakes of fact or
errors of judgment, or for any acts or omissions of any kind,
unless caused by its negligence or willful misconduct.
Nothing in this subparagraph shall in any manner affect the
obligations of the Title Company in its capacity as the issuer
of the Title Commitment and/or the Title Policy, nor in its
capacity as the closer of the transaction, nor shall the
foregoing indemnities of BUYER and SELLER be applicable to the
Title Company other than in its capacity as the holder of the
Deposit.
18.Confidentiality. The parties agree that neither party will
provide any information relating to the existence or terms of this
Agreement, or, in the case of BUYER, any information relating to the
Property produced or obtained in connection with the transaction
contemplated hereby, to any third party except for consultants,
attorneys, prospective lenders or tenants, or others who have a
business need for such information in connection with the transaction
itself, all of whom shall be directed to maintain the confidentiality
of such information. No public announcement with respect to the
transaction contemplated hereby shall be made prior to the Closing
thereof, and any announcement subsequent to the Closing shall not
disclose the terms hereof.
IN WITNESS WHEREOF, the parties have executed this Agreement on
the dates set out below but to be effective as of the effective date
provide for herein.
SELLER:
L.S. BRAKER ASSOCIATES, a Texas general partnership
By: Liberty Street/Braker Associates, a
Texas limited Partnership,
General Partner
By:/s/E. Davisson Hardman,Jr.
E. Davisson Hardman, Jr.
General Partner
By:/s/William B. Smith
William B. Smith,
General Partner
By: Dean Witter Realty Growth
Properties, L.P., a Delaware
limited partnership, General
Partner
By:/s/E. Davisson Hardman, Jr.
E. Davisson Hardman, Jr.
President
By:/s/Matthew M. Horgan
Matthew M. Horgan,
Assistant Secretary
BUYER:
HILL PARTNERS, INC.,
a Texas corporation
By:/s/Richard S. Hill
Name:Richard s. Hill
Title:President
Date of Execution:August 2, 1995
The undersigned attorney hereby acknowledges that it has acted
as BUYER's counsel in connection with this Agreement and is executing
this Agreement for the sole purpose of compliance with
Section 17.42(a)(3) of the Texas Deceptive Trade Practice Act.
By:/s/David P. Crist, Esq.
David P. Crist, Esq.
Counsel for BUYER
Dated:August 3, 1995
HERITAGE TITLE COMPANY:
Date Deposit Received
and the "Effective Date" of
this Agreement: By:/s/Brenda K. Hiridsman
August 3, 1995 Name:Brenda K. Hiridsman
Title:/s/Vice President
<PAGE>
The undersigned "Broker" is signing this Agreement to acknowledge
and to inform SELLER and BUYER (1) that the calculation of the
commissions which will be paid to Broker pursuant to this Agreement is
true and correct; and (2) that Broker is acting as the broker for the
BUYER in connection with this transaction.
HILL PARTNERS, INC.,
a Texas corporation
By:/s/Richard S. Hill
Name:Richard S. Hill
Title:President
<PAGE>
EXHIBIT A-1
DESCRIPTION OF BRAKER K
Lot Three (3), AMENDED PLAT OF STONEHOLLOW SECTION FIVE, a subdivision
in Travis County, Texas, according to the map or plat thereof, recorded
in Volume 87, Page(s) 62A-62B of the Plat Records of Travis County,
Texas.
<PAGE>
EXHIBIT A-2
DESCRIPTION OF BRAKER N
Lot Four (4), AMENDED PLAT OF STONEHOLLOW SECTION FIVE, a subdivision
in Travis County, Texas, according to the map or plat thereof, recorded
in Volume 87, Page(s) 62A-62B of the Plat Records of Travis County,
Texas.
<PAGE>
EXHIBIT A-3
Description of Lot 2:
Lot Two (2), AMENDED PLAT OF STONEHOLLOW SECTION TWO, a subdivision in
Travis County, Texas, according to the map or plat thereof, recorded
in Volume 87, Page(s) 62A-62B of the Plat Records of Travis County,
Texas.
Description of Lot 3A:
Lot Three-A (3-A), a subdivision of Lot Three (3), AMENDED PLAT OF
STONEHOLLOW SECTION THREE, a subdivision in Travis County, Texas,
according to the map or plat thereof, recorded in Volume 87, Page(s)
62A-62B of the Plat Records of Travis County, Texas.
Description of Lot 6:
Lot Six (6), AMENDED PLAT OF STONEHOLLOW SECTION FIVE, a subdivision
in Travis County, Texas, according to the map or plat thereof, recorded
in Volume 87, Page(s) 62A-62B of the Plat Records of Travis County,
Texas.
Description of Lot 7:
Lot Seven (7), AMENDED PLAT OF STONEHOLLOW SECTION FIVE, a subdivision
in Travis County, Texas, according to the map or plat thereof, recorded
in Volume 87, Page(s) 62A-62B of the Plat Records of Travis County,
Texas.
<PAGE>
EXHIBIT B
DESCRIPTION OF BRAKER M
Lot Two (2), AMENDED PLAT OF STONEHOLLOW SECTION FIVE, a subdivision
in Travis County, Texas, according to the map or plat thereof, recorded
in Volume 87, Page(s) 62A-62B of the Plat Records of Travis County,
Texas.
<PAGE>
SCHEDULE 1
LEASES
1. "Dell Building Lease": means that certain Lease Agreement for
Braker K dated January 6, 1989 executed by Braker K Associates and Dell
Corporate Services Corporation as amended by (i) that certain First
Amendment to Lease Agreement Between Braker K Associates, a Texas
Limited Partnership, as Landlord, and Dell USA, L.P., a Texas Limited
Partnership, a Tenant, executed by Braker K Associates and Dell USA,
L.P. and (ii) that certain Second Amendment to Lease Agreement for
Braker K dated February 2, 1995 executed by Braker K Associates and
Dell USA L.P.
2. "Parking Lease" means that certain Parking Ground Lease dated
February 28, 1995 executed by Braker Lane III Associates and Dell USA,
L.P.
