FORM 8-K
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Act of 1934
Date of Report (Date of earliest event reported): April 12, 1995
LINCAM PROPERTIES LTD. SERIES 85
Illinois 2-99673 36-3377785
(State or other (Commission File No.) (IRS Employee
jurisdiction of Identification No.)
organization)
125 S. Wacker Drive, Suite 3100, Chicago, Illinois 60606
(Address of principal executive office) (Zip Code)
Registrant's telephone number, including area code: 312-443-1477<PAGE>
BARTON CREEK LANDING APARTMENTS
Austin, Texas
Item 2. Acquisition or Disposition of Assets
On April 12, 1995, a 60% owned joint venture of Lincam Properties
Ltd. Series 85 (the "Partnership") sold Barton Creek Landing Apartments, a
250-unit luxury garden apartment complex located in Austin, Texas. The
Property sold includes 18.77 acres of land. The buyer, RREEF Barton Creek,
L.P., is not affiliated with the partnership, the affiliate joint venture,
or the general Partners of the Partnership, and the purchase price for the
property was determined by arm's-length negotiations.
The apartment complex was completed in 1986 and consists of 27 two-
story wood frame buildings with brick and wood exteriors: it contains 71
one-bedroom units and 179 two-bedroom units in a variety of floor plans
totalling 220,688 square feet of net rentable area. The apartment complex
includes a swimming pool, a clubhouse/leasing office, a lighted tennis
court and a sports court and is landscaped with tiered garden areas and
spacious greenbelts. All units are well appointed and include such
features as marble entries, fireplaces, individual security alarm systems,
and energy-saving appliances including frost-free refrigerators with
icemakers, automatic dishwashers, disposals, ovens, ranges and microwaves.
The sales price was $14,871,600 for which the affiliate joint venture
received approximately $14,272,000 in cash net of prorations and closing
costs. The Partnership received 60% of the net proceeds ($8,563,200), a
portion of which was used to repay its $5,000,000 outstanding note payable.
Item 7. Financial Statements, Pro Forma Financial Information and Exhibits
(a) Financial Statements. Not applicable.
(b) Pro Forma Financial Information. Inclusion of the pro
forma financial information is impracticable at this
time. This information will be filed under the cover of
"Form 8/A-1" as soon as practicable but not later than
sixty (60) days from the date of this report.
(c) Exhibits.
10.1 Agreement of Purchase and Sale of Barton Creek
Landing Apartments properties by LincAm Barton
Venture to RREEF Barton Creek, L.P., and First
Amendment thereto.
SIGNATURE
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.
LincAm Properties Ltd. Series 85
By: LincAm Properties Inc.
Corporate General Partner
(Registrant)
Date: April 26, 1995 By: JOHN E. ALLEN
-------------- ---------------
(Date) (Signature)
John E. Allen,
President of Corporate
General Partner
FIRST AMENDMENT TO PURCHASE AGREEMENT
This First Amendment to Purchase Agreement is made as of the ___ day
of April, 1995 by and between RREEF America L.L.C., a Delaware limited
liability company ("Purchaser") and Lincam Barton Venture ("Seller").
W I T N E S S E T H:
WHEREAS, Seller and Purchaser have entered into that certain Purchase
Agreement dated February 17, 1995 (the "Contract") for the purchase and
sale of the property known as Barton Creek Landing Apartments (the
"Property"), as more particularly described therein;
WHEREAS, Seller and Purchaser have agreed to various changes to the
Contract, as more fully set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants contained
herein and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereby amend the
Contract as follows:
1. Purchase Price. The definition of Purchase Price under
paragraph 1.3(a) of the contract is hereby amended to read as follows:
"Purchase Price. The purchase price for the Property (the Purchase Price)
is $14,871,600."
2. Tax Holdback. At closing, the real estate tax credit to be
provided by Seller to Purchaser under the Contract shall be based on
$940.99 for each day of Seller's period of ownership during the tax bill
period. In addition, Seller shall credit to Purchaser an amount equal to
$59.18 for each day of Purchaser's period of ownership during the current
tax bill period, which Purchaser shall hold in its operating account until
the final real estate tax bill attributable to the current billing period
is issued. To the extent the actual tax bill is less than $343,462 and
greater than $321,839, within thirty (30) days after receipt of such final
tax bill, Purchaser shall pay to Seller an amount equal to Purchaser's
share (on a per diem basis) of $343,462 less the greater of (i) the actual
amount of such tax bill, or (ii) $321,839.
3. Confidentiality. The parties hereto agree to keep confidential
all matters relating to the Purchase Price (other than on a need-to-know
basis), and to obtain agreements from their respective brokers, agents and
employees to do the same.
4. Property Owners Association. At Closing, Seller shall deliver
to Purchaser an estoppel letter (in a form reasonably acceptable to
Purchaser) from the Wallingwood P.U.D. Owners Association stating the
annual amount of assessment due for the Property, that Seller has paid all
assessments and other amounts due and owing to date, that no special
assessments are being charged or are anticipated, and that neither Seller
nor the Property is in violation of the terms of the Declaration of
Covenants, Conditions and Restrictions creating such association.
5. Price Allocation. Seller and Purchaser acknowledge that a
portion of the Purchase Price is attributable to personal property to be
conveyed. At or prior to closing, Seller and Purchaser shall negotiate in
good faith to arrive at an allocation of the Purchase Price between the
personal and real property to be conveyed.
6. Zoning: Inspection Period. Upon full execution and delivery
of this First Amendment by Seller and Purchaser, Purchaser hereby approves
of the condition of the Property and waives its right to terminate the
Contract pursuant to paragraph 2.1 thereof, except with regard to zoning
matters. If Purchaser determines, in its sole discretion, that the current
zoning for the Property is unsatisfactory to Purchaser, Purchaser may
terminate this Contract by giving written notice of termination to Seller
on or before April 12, 1995. If Purchaser does not so give such notice of
termination, the Contract shall continue in full force and effect.
7. Severability. If any provision of this Amendment is held to be
illegal, invalid, or unenforceable under present or future laws, such
provision shall be fully severable; this Amendment shall be construed and
enforced as if such illegal, invalid, or unenforceable provision had never
comprised a part hereof; and the remaining provisions hereof shall remain
in full force and shall not be affected by the illegal, invalid, or
unenforceable provision or by its severance therefrom.
8. Continuation of Contract. Other than as amended herein, the
Contract shall remain in full force and effect and all capitalized terms
herein shall have the same definition as those contained in the Contract.
In the event of any conflict between the terms of the Contract and this
First Amendment, the provisions of this First Amendment shall govern.
IN WITNESS WHEREOF, the parties have executed this First Amendment to
the Contract as of the date first set forth above.
Seller: Purchaser:
Lincam Barton Venture RREEF America L.L.C.,
a Delaware limited liability company
By: Lincam Properties Ltd. Series 85
By: Lincam Properties, Inc. By:
a Delaware corporation, ----------------------
general partner Title: Authorized
Representative
By: ____________________________
Title:
By: Lincam Associates, Ltd.
an Illinois limited partnership,
general partner
By: ____________________________
Title:
AGREEMENT OF PURCHASE AND SALE
FOR THE ACQUISITION
OF
BARTON CREEK LANDING APARTMENTS
BY
RREEF AMERICA L.L.C.
FROM
LINCAM PROPERTIES LTD. SERIES 85
Dated as of: February ____, 1995
TABLE OF CONTENTS
Page
ARTICLE 1 CERTAIN TERMS/PROPERTY/PURCHASE PRICE/
ADDITIONAL CONSIDERATION
1.1 Certain Definitions. . . . . . . . . . . . . . . . . . . . . .1
1.2 Purchase and Sale. . . . . . . . . . . . . . . . . . . . . . .3
1.3 Purchase Price and Payment . . . . . . . . . . . . . . . . . .3
1.4 Earnest Money. . . . . . . . . . . . . . . . . . . . . . . . .3
ARTICLE 2 INSPECTION
2.1 Inspection and Review Period. . . . . . . . . . . . . . . . . .3
2.2 Continuing Right of Access for Inspection. . . . . . . . . . .8
ARTICLE 3 TITLE REVIEW
3.1 Delivery of Title Documents. . . . . . . . . . . . . . . . . .8
3.2 Review of Title. . . . . . . . . . . . . . . . . . . . . . . .9
3.3 Further Exceptions . . . . . . . . . . . . . . . . . . . . . 10
ARTICLE 4 OPERATIONS PRIOR TO CLOSING
4.1 Seller's Operations. . . . . . . . . . . . . . . . . . . . . 10
4.2 Leasing Arrangements and Management Transition . . . . . . . 11
4.3 Removal and Replacement of Tangible Personal Property. . . . 12
4.4 Seller's Obligations . . . . . . . . . . . . . . . . . . . . 12
ARTICLE 5 CLOSING
5.1 Closing Date. . . . . . . . . . . . . . . . . . . . . . . . . 13
5.2 Seller's Deliveries in Escrow. . . . . . . . . . . . . . . . 13
5.3 Purchaser's Deliveries in Escrow . . . . . . . . . . . . . . 14
5.4 Closing Statements/Transfer Declarations . . . . . . . . . . 15
5.5 Title Policy/Updated UCC Searches. . . . . . . . . . . . . . 15
5.6 Possession . . . . . . . . . . . . . . . . . . . . . . . . . 15
5.7 Termination of Property Management and Other Service
Contracts. . . . . . . . . . . . . . . . . . . . . . . . . . 15
5.8 Memorandum/Name of Representative. . . . . . . . . . . . . . 16
5.9 Delivery of Books and Records. . . . . . . . . . . . . . . . 16
5.10 Notice to Tenants and Vendors. . . . . . . . . . . . . . . . 16
5.11 Close of Escrow. . . . . . . . . . . . . . . . . . . . . . . 16
5.12 Conditions Precedent . . . . . . . . . . . . . . . . . . . . 17
ARTICLE 6 PRORATIONS/OTHER ALLOCATIONS
AND DELIVERIES/EXPENSES
6.1 Prorations . . . . . . . . . . . . . . . . . . . . . . . . . 18
6.2 Tenant Deposits. . . . . . . . . . . . . . . . . . . . . . . 20
6.3 Sales, Transfer, and Documentary Taxes . . . . . . . . . . . 20
6.4 Utility Deposits . . . . . . . . . . . . . . . . . . . . . . 20
6.5 Permit Transfer Fees . . . . . . . . . . . . . . . . . . . . 20
6.6 Wages. . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
6.7 Intentionally Deleted. . . . . . . . . . . . . . . . . . . . 20
6.8 Commissions. . . . . . . . . . . . . . . . . . . . . . . . . 20
6.9 Transaction Expenses . . . . . . . . . . . . . . . . . . . . 21
ARTICLE 7 REPRESENTATIONS AND WARRANTIES
7.1 Seller's Representations and Warranties. . . . . . . . . . . 21
7.2 Purchaser's Representations and Warranties . . . . . . . . . 27
7.3 Survival of Representation, Warranties and Covenants . . . . 28
ARTICLE 8 DAMAGE OR DESTRUCTION/CONDEMNATION
8.1 Damage or Destruction. . . . . . . . . . . . . . . . . . . . 29
8.2 Condemnation . . . . . . . . . . . . . . . . . . . . . . . . 30
ARTICLE 9 REMEDIES
9.1 Purchaser's Default. . . . . . . . . . . . . . . . . . . . . 30
9.2 Seller's Default . . . . . . . . . . . . . . . . . . . . . . 30
ARTICLE 10 MISCELLANEOUS
10.1 Parties Bound. . . . . . . . . . . . . . . . . . . . . . . . 31
10.2 Headings . . . . . . . . . . . . . . . . . . . . . . . . . . 31
10.3 Invalidity . . . . . . . . . . . . . . . . . . . . . . . . . 31
10.4 Governing Law. . . . . . . . . . . . . . . . . . . . . . . . 32
10.5 Survival . . . . . . . . . . . . . . . . . . . . . . . . . . 32
10.6 No Third Party Beneficiary . . . . . . . . . . . . . . . . . 32
10.7 Entirety and Amendments. . . . . . . . . . . . . . . . . . . 32
10.8 Execution in Counterparts. . . . . . . . . . . . . . . . . . 32
10.9 Further Assurances . . . . . . . . . . . . . . . . . . . . . 32
10.10 Time . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
10.11 Confidentiality. . . . . . . . . . . . . . . . . . . . . . . 33
10.12 U.S. Currency Required . . . . . . . . . . . . . . . . . . . 33
10.13 Attorneys' Fees. . . . . . . . . . . . . . . . . . . . . . . 33
10.14 Use of Pronouns. . . . . . . . . . . . . . . . . . . . . . . 33
10.15 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . 33
10.16 Construction. . . . . . . . . . . . . . . . . . . . . . . . 34
10.17 Calculation of Time Periods . . . . . . . . . . . . . . . . 34
10.18 Information and Audit Cooperation . . . . . . . . . . . . . 35
10.19 Limitation of Liability . . . . . . . . . . . . . . . . . . 35
10.20 As-Is, Where-Is . . . . . . . . . . . . . . . . . . . . . . 35
ARTICLE 11 INDEMNIFICATION
11.1 Seller's Agreements. . . . . . . . . . . . . . . . . . . . . 36
11.2 Purchaser's Agreements . . . . . . . . . . . . . . . . . . . 36
11.3 Procedures for Obtaining Indemnification. . . . . . . . . . 37
11.4 Right to Assume Defense. . . . . . . . . . . . . . . . . . . 38
AGREEMENT OF PURCHASE AND SALE
(Barton Creek Landing Apartments)
THIS AGREEMENT OF PURCHASE AND SALE ("Agreement") is made as of the
___ day of _________________, 1995, by and between RREEF AMERICA L.L.C., a
Delaware limited liability company (the "Purchaser") and LINCAM PROPERTIES
LTD SERIES 85, an Illinois limited partnership (as "Seller") under the
following circumstances:
A. Seller is the owner of the 250-unit apartment project and
related facilities situated on the land described in Exhibit A attached
hereto.
B. Seller desires to sell to Purchaser and Purchaser desires to
buy from the Seller, subject to and upon the terms and conditions
hereinafter set forth, the 250-unit apartment project and related
facilities situated on the land described in Exhibit A hereto.
NOW THEREFORE, in consideration of the mutual covenants and
agreements contained in this Agreement and for other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
ARTICLE 1: CERTAIN TERMS/PROPERTY/PURCHASE PRICE/
ADDITIONAL CONSIDERATION
1.1 Certain Definitions: As used herein, the terms listed below
shall have the following meanings throughout this Agreement:
(a) The term "Real Property" shall be a reference to the real
property described in Exhibit A attached hereto, together with (i) all
improvements (if any) located thereon, including without limitation all
heating, ventilation, electrical, plumbing and other mechanical or
operational systems (collectively, the "Improvements"), (ii) all and
singular the rights, benefits, privileges, easements, tenements,
hereditaments and appurtenances thereon or in anywise appertaining to such
real property, (iii) all right, title, and interest of the Seller in and to
all strips and gores and any land lying in the bed of any street, road or
alley, open or proposed, adjoining any portion of such real property, and
(iv) all right, title and interest of the Seller in and to all other real
property around, claimed or used by the Seller adjoining or contiguous to
any part of such real property. When the Survey (as defined herein) is
available, the legal description in the Survey shall be accepted by the
parties as the correct legal description of the Real Property, although
material differences from Exhibit A shall be subject to the reasonable
approval of Purchaser.
(b) The term "Leases" shall be a collective reference to all
leases of or other occupancy agreements for apartments and other space in
the Improvements, including leases that may be made by Seller after the
date hereof and prior to the Closing (as defined herein).
(c) The term "Tangible Personal Property" shall be a
collective reference to all equipment, machinery, furniture, furnishings,
supplies and other tangible personal property owned by Seller and Seller's
interest in any such property leased to Seller, now or hereafter located in
and used in connection with the operation, ownership or management of the
Real Property.
(d) The term "Intangible Personal Property" shall be a
collective reference to all intangible personal property related to the
Real Property, including, without limitation: all trade names and
trademarks associated with the Real Property including Seller's rights and
interests, if and to the extent Seller has such rights and interests, in
the name of the Real Property, which is commonly known as "Barton Creek
Landing Apartments"; the plans and specifications and other architectural
and engineering drawings for the Improvements, if and to the extent Seller
has any right, title or interest in and to such plans and specifications
and other architectural and engineering drawings for the Improvements;
contract rights related to the construction, operation, ownership or
management of the Real Property (but excluding the obligations of the
Seller thereunder, except those expressly assumed pursuant to this
Agreement); warranties, zoning approvals, building permits and licenses (to
the extent assignable); tenant lists, correspondence with tenants and
records (including, but not limited to, those relating to taxes, insurance,
maintenance, repairs, capital improvements and services), booklets,
manuals, advertising and promotional materials, including, without
limitation, photographs and negatives, correspondence with suppliers, and
telephone exchange numbers (if available).
(e) The term "Property" shall be a collective reference to
the Real Property and all Improvements, Tangible Personal Property and the
Seller's interest in the Leases and Intangible Personal Property.
1.2 Purchase and Sale. Subject to the applicable terms and
conditions of this Agreement, Seller agrees to sell the Property to
Purchaser, and Purchaser agrees to purchase the Property from Seller.
1.3 Purchase Price and Payment.
(a) Purchase Price. The purchase price for the Property (the
"Purchase Price") is $14,900,000.00.
(b) Payment of Purchase Price. The Purchase Price shall be
payable at Closing (defined below), plus or minus prorations and other
adjustments to the Purchase Price as described herein and after the
application for the benefit of Purchaser of all Earnest Money (including
any interest earned thereon), by wire transfer to the Seller.
1.4 Earnest Money. Purchaser has deposited $50,000.00 into a joint
order escrow account with Chicago Title Insurance Company, National
Business Unit, 7616 LBJ Freeway, Suite 300, Dallas, Texas 75251 (Attn. Ms.
Ellen Schwab) as escrow trustee, with such funds to be deposited in an
insured interest bearing account pursuant to instructions to the Title
Insurer from the Purchaser. Unless the Purchaser terminates this Agreement
by delivery of written notice to Seller on or before the last day of the
Review Period (as determined in accordance with Section 2.1 hereof), the
Purchaser shall deposit within five (5) business days after the last day of
the Review Period (as determined in accordance with Section 2.1 hereof) an
additional $50,000.00 into the Escrow (all such amounts deposited therein,
together with any interest accrued thereon, shall be collectively referred
to herein as the "Earnest Money"). If Purchaser delivers such termination
notice, all Earnest Money shall be returned promptly to Purchaser and,
subject to the provisions of Section 2.1(d) below, this Agreement shall be
null and void. In the absence of such notice, provided Seller fulfills all
its obligations under this Agreement, the Earnest Money shall be
nonrefundable to Purchaser and payable to Seller at Closing or, upon
default of Purchaser, after the expiration of all applicable cure periods.
Purchaser's failure to timely deposit the additional $50,000 referred to
above shall be deemed a default hereunder and Seller shall have the right
to exercise its rights and remedies pursuant to the terms and provisions of
Section 9.1 hereof.
ARTICLE 2: INSPECTION
2.1 Inspection and Review Period. Purchaser shall have forty-five
(45) days after the date hereof (the "Review Period") to receive, review
and inspect all aspects of the Property and to determine, in its sole
discretion, that the Property is satisfactory in all respects.
Notwithstanding anything to the contrary in this Agreement, Purchaser may
terminate this Agreement by giving written notice of termination to Seller
on or before the expiration of the Review Period. If Purchaser does not so
give such notice of termination, this Agreement shall continue in full
force and effect and Purchaser shall deposit with the Title Company, at the
time and in the manner required pursuant to Paragraph 1.4, above, the
additional Earnest Money described therein.
(a) Inspections. The inspections and reviews will include, at a
minimum, the following:
(i) Physical inspections of the entire Property, unit by unit,
including structural, mechanical, life-safety, engineering, civil,
landscaping, paving, plumbing, electrical and all other detail inspections;
(ii) Examination of all construction items, to the extent in
Seller's possession or control (which, for purposes hereof, "control" shall
mean readily available to Seller without cost [other than incidental costs
of postage and other such items]), including as-built architectural, civil,
electrical, life-safety, mechanical and plumbing plans and specifications,
copies of any available construction reports, whether internal or external,
certificates of completion from the project architect and inspecting
architect, certificates of occupancy, building permits, evidence of
compliance with fire code, building code and other governmental or
regulatory code requirements and all other related use permits;
(iii) Examination of all operating statements and supporting
documentation of the Property from and including calendar years 1991
through 1994 as well as 1995 year to date together with the 1995 budget,
reflecting all detailed rental income, operating expense accounts, and the
maintenance log maintained for the Property;
(iv) All documentation maintained in current tenant files, including
all Leases, security deposit information, credit reviews, and the like;
(v) An environmental report for the Property prepared by a
qualified engineering firm acceptable to Purchaser and in form otherwise
satisfactory to Purchaser, which shall be paid for by Purchaser and shall
remain the property of Purchaser;
(vi) All existing title policies and commitments and surveys issued
or prepared in connection with the Property, together with copies of all
exception documents noted therein; and
(vii) Such other documents, reviews and inspections as Purchaser
determines are reasonably necessary.
(b) Access. Purchaser and its agents and contractors shall have
unlimited access to the Property, subject to the limitations set forth
herein (including, without limitation, the rights of all tenants under
their leases), during the Review Period to enable Purchaser to conduct its
review and analysis of the Property. Purchaser shall indemnify, defend and
hold Seller harmless with respect to any damage to the Property or injury
to any person caused by Purchaser, its agents, employees or contractors in
connection with its investigations of the Property, provided, however, that
with respect to any damage to the Property or injury to any person not
caused solely by the negligence of any one or more of Purchaser, its agents
or its contractors, such indemnification to be limited to the extent of
Purchaser's, its agents' or contractors' contributory negligence. All
activities of Purchaser during the Review Period shall be at Purchaser's
sole expense, subject to Section 6.9 and Article 9 below.
Purchaser agrees to provide Seller with twenty-four (24) hours
advance notice of such inspections and further agrees that Seller (i) has
the right to have an employee or agent present during such inspections and
(ii) has the right to approve in its sole discretion the scope and method
of any physically intrusive inspection (for example, a Phase II Site
Assessment).
(c) Cooperation. To the extent such items are in Seller's
possession or control (which, for purposes hereof, "control" shall mean
readily available to Seller without cost [other than incidental costs of
postage and other such items]), Seller shall provide access to the Property
and copies of all items and records noted in Section 2.1(a) above, in this
Section 2.1(c) below, or hereafter requested (collectively the "Property
Information"), to Purchaser and Purchaser's agents during normal business
hours. Purchaser's inspection rights shall include without limitation the
right to conduct a "walk-through" of the individual apartment units located
in the Property during the Review Period or prior to the Closing, upon
appropriate notice (not to exceed twenty-four (24) hours) to tenants
subject to the rights of tenants under their leases. In the course of its
investigations, Purchaser may make inquiries to third parties, including,
without limitation, tenants, lenders, contractors, property managers,
parties to Service Contracts and municipal, local and other government
officials and representatives, and Seller consents to such inquiries.
Seller shall in good faith cooperate with Purchaser and Purchaser's agents
during Purchaser's reviews and inspections, and Seller shall disclose to
Purchaser prior to expiration of the Review Period all physical and
financial aspects of the Property of which Seller has any knowledge.
Specifically, and without limitation, Seller shall provide to Purchaser (to
the extent not already provided) not later than seven (7) days after the
date hereof with copies of or access to the following items for the
Property:
(i) Plans. Copies of architectural and construction plans and
specifications;
(ii) Surveys. Copies of existing surveys;
(iii) Environmental. Copies of all existing environmental
inspections, reports, tests, studies or audits;
(iv) Title. Copies of existing title policies or commitments and
all title exception documents;
(v) Operating Statements. Copies of unaudited annual operating
statements for 1991, 1992 , 1993 and 1994, plus the Property budget for
1995 (collectively, together with those referred to in Section 4.1(f), the
"Operating Statements") together with a breakdown of all sources and
amounts of all income in addition to rental revenues;
(vi) Leases. Access to all Leases and Lease files and service
agreements and maintenance files;
(vii) Permits. A copy of all certificates of occupancy and copies of
all current governmental permits, licenses and approvals;
(viii) Rent Roll. A copy of a current rent roll (the "Rent Roll")
showing unit, tenant, monthly rental, security or other deposit, date of
security or other deposit, date rent paid through, delinquency, free rent
or other concessions, and lease term (including any renewals);
(ix) Tax Statements. Copies or a summary of ad valorem tax
statements (including copies of all notices of valuation or tax protests)
relating to the Property for the current year or other current tax period
(if available) and for the three (3) calendar years preceding this
Agreement;
(x) Lease Form. Copies of Seller's standard lease forms in use at
the Property;
(xi) Service Contracts. Copies of a list (together with access to
copies) of all management agreements, service, supply, equipment rental and
similar contracts related to the operation of the Property (collectively,
the "Service Contracts");
(xii) Maintenance Records. Access to all available maintenance work
orders for the 12 months preceding this Agreement;
(xiii) Utility Bills. Access to all utility bills for the twelve (12)
months preceding this Agreement, if available;
(xiv) List of Capital Improvements. A list of all capital
improvements performed on the Property within the twelve (12) months
preceding this Agreement;
(xv) Inventory. An inventory of the Tangible Personal Property and
the Intangible Personal Property;
(xvi) ADA Reports. Any written reports, results of inspections or
surveys of the Property related to compliance with the Americans with
Disabilities Act or other laws relating to access; and
(xvii) Governmental Notices. Any written notices, reports, citations,
correspondence or memoranda received by Seller from any government agency,
unit, division or department (federal, state, county or municipal)
concerning the Property and not covered in any of the categories above.
(xviii) Litigation. A list of all litigation affecting the Property
from 1992 to date and any pending litigation affecting the Property.
In addition, Seller shall arrange for Purchaser's representatives to meet
as soon as practicable during the Review Period with the property manager
or the person most knowledgeable about the Property to discuss the
Property's operating performance, competitive position in the market,
capital improvements and the like. In addition, Seller agrees to provide
promptly to Purchaser any documents and information described in Sections
2.1(a) and (c) and coming into Seller's possession or produced by Seller
prior to Closing.
(d) Return of Materials. If this transaction does not close for
any reason other than Seller's default, then all materials furnished by
Seller shall be returned promptly to Seller upon receipt by Purchaser of
the Earnest Money. If this Agreement terminates in its entirety pursuant
to this Section 2.1, Purchaser shall deliver $100 to Seller as
consideration for Seller's execution of and entry into this Agreement.
Seller acknowledges that Purchaser expects to expend significant time,
money and other resources in connection with the examination and
investigation of the Property, and that, notwithstanding the fact that this
Agreement may terminate pursuant to this Section 2.1, the payment of the
$100 hereinabove described to be paid to Seller in the event of such a
termination of this Agreement, the delivery of certain items which
Purchaser may obtain, together with such time, money and other resources
that may be expended, constitutes adequate consideration for Seller's
execution of and entry into this Agreement.
2.2 Continuing Right of Access for Inspection. During the pendency
of this Agreement (even after the Review Period), Purchaser and its agents,
employees, and representatives shall have a continuing right of reasonable
access to the Property (which access shall still be subject to Section
2.1(b) above) and the right to examine and make copies of all items to
which Purchaser was granted access during the Review Period.
ARTICLE 3: TITLE REVIEW
3.1 Delivery of Title Documents. Within seven (7) days after the
date of this Agreement, Seller shall cause to be prepared and delivered to
Purchaser the items in clauses (b) and (c) below and Purchaser shall cause
to be prepared and delivered to Purchaser the item in clause (a) below:
(a) A commitment (the "Title Commitment") covering a date not
earlier than ten (10) days prior to the date of this Agreement issued by
Chicago Title Insurance Company (the "Title Insurer" or the "Title
Company") through its agent Heritage Title Insurance Company, Austin,
Texas, to Purchaser providing for the issuance to Purchaser at the Closing
of a Texas Form T-1 Owner's Title Insurance Policy with respect to the Real
Property to be conveyed to Purchaser at Closing, in the amount of the
Purchase Price, which commitment must disclose the Seller as the owner of
fee simple title to the Real Property together with legible copies of all
documents underlying all exceptions to title; and
(b) A survey (including field notes) of the Real Property (the
"Survey") made by Point Line Surveying, Inc. (Melvin D. Lindsey) or other
surveyors or civil engineers approved by Purchaser and duly licensed in the
jurisdiction in which the Real Property is located. The Survey shall be
dated after the date of this Agreement, and Seller shall have same
certified to Purchaser, any parties designated by Purchaser, and Title
Insurer. Seller shall endeavor to have the surveyor certify the Survey
using the form of Exhibit B attached hereto, as having been prepared in
accordance with the standards adopted by the Texas Society of Professional
Surveyors, including the standards for a Category 1A, Condition II survey
as well as ALTA-ASCM Urban standards (provided, however, the only optional
matters to be included regarding ALTA-ASCM Urban standards will be those
that would be required under Texas Category 1A, Condition II standards).
To the extent that the surveyor does not use the language for his
certificate as set forth in Exhibit B, or there are any optional items
Purchaser would prefer to see the survey contain, Purchaser may note any
discrepencies as to the certificate or preferred optional items as Title
Objections. The Survey shall be sufficient for purposes of amending the
areas and boundaries exception in the Title Policy. The Survey shall set
forth all matters required on such a survey, including, but not limited to,
the following: (i) all easements, rights-of-way and other encumbrances and
matters of record affecting or appurtenant to the Real Property; (ii) the
building and setback lines, if any; (iii) the line of the street or streets
abutting the Real Property or any portion thereof; (iv) any and all
encroachments upon the Real Property or any easement appurtenant thereto;
(v) all Improvements on the Real Property (including exterior dimensions);
(vi) the configuration and number of parking spaces; and (vii) the area of
the Real Property; and (viii) stating whether the Real Property is located
in an area designated by HUD as having special flood risks; and
(c) At least fifteen (15) days prior to the Closing (with updates
if the Closing Date is extended pursuant hereto) copies of current Uniform
Commercial Code searches in the name of Seller and the Property issued by
the Title Company or a search company acceptable to Purchaser ("UCC
Searches"), covering a date not earlier than thirty (30) days prior to the
Closing.
3.2 Review of Title. Purchaser shall have ten (10) business days
after the last to be received of the Title Commitment (including true,
correct and complete copies of all exception documents referenced therein)
and the Survey to review title and survey matters with respect to the
Property, and to notify Seller of any objections to such matters ("Title
Objections") with respect to the Property.
Seller shall be obligated to discharge any Title Objections which are
financing liens, mechanics' liens, materialmens' liens or tax liens and
matters arising out of Seller's voluntary acts subsequent to the date of
the Title Commitment, all of which liens, encumbrances and other matters
shall be satisfied, cured or discharged, as appropriate, prior to the
Closing. Purchaser may attempt, but shall not be obligated, to cure any
Title Objections. Within five (5) business days of receipt of a notice
delivered by Purchaser to Seller under the preceding paragraph, Seller
shall notify Purchaser in writing of any Title Objection which it either
refuses to cure or is unable to cure in a manner acceptable to Purchaser;
in the absence of such notice from Seller, Seller shall be deemed to have
agreed to cure or satisfy all Title Objections that were raised in such
notice from Purchaser, and all such Title Objections shall be cured or
satisfied by Seller prior to the applicable Closing.
Purchaser shall have the right by giving notice to Seller within five
(5) business days after Purchaser is notified by Seller of its refusal or
inability to cure any of the Title Objections raised by Purchaser to
(i) elect not to purchase the Property and to terminate this Agreement, in
which event, notwithstanding anything in this Agreement to the contrary,
the Earnest Money shall be returned to Purchaser; (ii) elect to proceed
pursuant to this Agreement, thereby waiving its objection to such Title
Objections; and/or (iii) elect to proceed pursuant to this Agreement, with
the right to deduct from the Purchase Price (1) an amount necessary to
discharge, satisfy or cure those Title Objections that Seller is obligated
to discharge, satisfy or cure pursuant to the first sentence of the
immediately preceding paragraph and (2) an amount, not to exceed $50,000,
necessary to discharge any other liens or encumbrances of a definite or
ascertainable amount. For purposes of this Agreement, the term "Permitted
Exceptions" means (i) general or special real estate taxes not then due and
owing, (ii) acts done or suffered to be done by Purchaser, (iii) leases
entered into in the ordinary course of Seller's business and in accordance
with the terms hereof, (iv) title matters that are disclosed by the Title
Commitment and not objected to by Purchaser and (vi) any Title Objections
waived by Purchaser in writing. If Purchaser fails to give the foregoing
written notice to Seller within the time required in this paragraph, it
shall be conclusively deemed that Purchaser has elected to waive the
applicable Title Objections and has accepted them as additional Permitted
Exceptions.
3.3 Further Exceptions. If Title Insurer issues further amended
Title Commitments or UCC Searches showing additional exceptions or
exclusions from coverage or if further revised Surveys disclose additional
defects, Purchaser may notify Seller of resulting additional Title
Objections, the parties' shall proceed as provided above, and the Closing
shall be extended, as necessary, but not beyond April 15, 1995, to
accommodate Purchaser's right to object and terminate (and receive its
Earnest Money) and the parties' right to cure in the manner provided above.
ARTICLE 4: OPERATIONS PRIOR TO CLOSING
4.1 Seller's Operations. Seller agrees that so long as this
Agreement shall remain in effect, Seller shall:
(a) Insurance. Maintain any and all insurance coverage presently
in effect with respect to the Property, including policies of public
liability, property damage and fire insurance;
(b) Operations and Management. Unless otherwise provided herein,
operate and manage the Property in the ordinary course of business in
accordance with usual business practices in a manner befitting the current
quality of the Property, and maintain the Property in its present
condition, reasonable wear and tear excepted, including needed repairs and
capital improvements consistent with historical practices and quality
maintenance standards;
(c) Contracts. Except as to Leases complying with Section 4.2 and
contracts entered into in the ordinary course of business that are
terminable without cause on 30-day's notice or as otherwise expressly
permitted herein, not enter into any contract that will be an obligation
affecting the Property subsequent to the Closing;
(d) Listings and Other Offers. Not solicit or make or accept any
offers to sell the Property, not engage in any discussions or negotiations
with any third party with respect to the sale or other disposition of the
Property, and not enter into any other contracts or agreements (whether
binding or not) to sell or otherwise dispose of the Property;
(e) Not Violate Agreement. Not take or omit to take any action
that would have the effect of violating any of Seller's representations,
warranties and agreements contained in this Agreement;
(f) Operating Statements. Furnish Purchaser with monthly Operating
Statements and monthly Rent Rolls as they become available, which
statements and rent rolls shall be included in the defined terms "Operating
Statements" and "Rent Rolls" as used herein; and
(g) Access. Furnish Purchaser access to the Property and to
records as set forth in Sections 2.1 and 2.2 and otherwise to verify
management and maintenance practices and to assist any management
transitions which would occur upon the Closing of this transaction.
4.2 Leasing Arrangements and Management Transition. Seller agrees
that:
(a) Leasing. From and after the date of this Agreement, without
Purchaser's prior written consent in each instance: Seller shall not enter
into, amend or terminate any Lease unless in the ordinary course of
business. All Leases entered into during this Agreement shall be on
Seller's current standard lease forms except for non-material deviations,
shall be for terms of no less than six (6) months and no greater than
twelve (12) months at current market rentals, shall not include any
concessions or discounts in excess of those prevalent in the market, and
shall otherwise comply with Seller's current leasing policies. No leasing
commissions will be incurred, except in accordance with Seller's past
practice and in the ordinary course of business.
(b) Management Transition. From and after the date hereof, Seller
shall promptly provide to Purchaser copies of all monthly operating
statements concerning the operation of the Property. It is agreed that
such reports will be prepared on at least a monthly basis. Seller agrees
that Purchaser may contact Seller's or Seller's managing agent's
supervisors to discuss the reports delivered to Purchaser and to discuss
the operation of the Property. Seller agrees to cooperate fully with
Purchaser and Purchaser's representatives to apprise Purchaser of all
matters relating to management of the Property and to facilitate transition
of management at the Closing. Seller shall allow Purchaser's management
personnel to work at the Property with Seller or Seller's managing agent's
management personnel commencing five (5) days prior to the Closing for the
purpose of installing facilities, reviewing files and records, determining
the exact amount of unpaid and prepaid bills and rents, and otherwise
preparing to take over management of the Property. In connection
therewith, Seller shall allow Purchaser access to all files and records
during such period.
4.3 Removal and Replacement of Tangible Personal Property. Seller
shall not remove any Tangible Personal Property, except as may be required
for necessary repair or replacement, and any replacement shall be of equal
quality and quantity as existed as of the time of its removal. Seller
shall maintain supplies and inventories consistent with historical
practices and quality management standards.
4.4 Seller's Obligations. Other than the obligations of Seller
expressly assumed by Purchaser pursuant to this Agreement, Seller, subject
to the terms and conditions of this Agreement, covenants that it shall pay
and discharge any and all liabilities of each and every kind arising out of
or by virtue of the conduct of its business before and as of the Closing on
or related to the Property, each to the extent Purchaser would otherwise be
liable to pay such liabilities.
ARTICLE 5: CLOSING
5.1 Closing Date. Subject to fulfillment of the various conditions
described herein, the consummation of the sale and acquisition of the
Property, as contemplated herein (the "Closing"), shall take place on a
date (the "Closing Date") specified in written notice from Purchaser to
Seller which date shall be not more than fifteen (15) days following the
expiration of the Review Period, and if no notice is given, the Closing
Date shall be on the first business day to occur fifteen (15) days
following expiration of the Review Period. The Closing shall take place
through an escrow with the Title Insurer and/or by other arrangements
satisfactory to the parties wherein all required documents and deliveries
are deposited or otherwise delivered to the appropriate parties.
5.2 Seller's Deliveries in Escrow. At the Closing, Seller shall
deliver to Purchaser the following:
(a) Deed. Special Warranty Deed for the Real Property (in the form
attached hereto as Exhibit C-1) executed and acknowledged by the Seller and
any other parties required to effectuate such conveyance, conveying to
Purchaser good and marketable fee simple title to the Real Property,
subject only to the Permitted Exceptions applicable to the Real Property;
(b) Assignment of Leases. Assignment of Leases for the Property,
containing mutual indemnities for pre- and post-closing matters (in the
form attached hereto as Exhibit C-2);
(c) Bill of Sale. Bill of Sale with respect to the Tangible
Personal Property and Intangible Personal Property (in the form attached
hereto as Exhibit C-3);
(d) Assignment of Intangible Personal Property. Assignment of
Intangible Personal Property with respect to the Property (in the form
attached hereto as Exhibit C-4);
(e) FIRPTA. A Foreign Investment in Real Property Tax Act
affidavit executed by Seller. If Seller fails to provide the necessary
affidavit and/or documentation of exemption on the Closing Date, Purchaser
may proceed with withholding provisions as provided by law;
(f) Certificate of Representations and Warranties. A certificate
(in the form attached hereto as Exhibit C-5) signed by Seller reaffirming
and updating to the Closing Date the representations and warranties given
by Seller under Article 7 that will include an updated Rent Roll and
Operating Statement for the preceding month (or the next preceding month if
the Closing Date is between the 1st and 10th day of a month);
(g) Form 1099B. A Form 1099B executed by Seller;
(h) Authority. Evidence of existence, organization and authority
of Seller and the authority of the person executing documents on behalf of
Seller, reasonably satisfactory to Purchaser and (to the extent applicable)
the Title Insurer, including, without limitation, executed, original
consents from those parties whose consent is required to be obtained and
evidence that such consents are the only consents required to be obtained
with respect to this transaction;
(i) Assignments and Assumptions of Contracts. Assignments of any
and all Service Contracts or other agreements (in the form attached hereto
as Exhibit C-6);
(j) Lien Waivers. Seller shall cause the property manager of the
Property, the broker identified in Section 6.8 hereof, as well as any
leasing broker involved with the Property to deliver to Purchaser, in form
and substance reasonably acceptable to Purchaser and the Title Company, a
waiver wherein such parties release any and all mechanic lien rights and
claims that they or any one claiming by, through or under any of them may
have pursuant to any applicable statute or law.
(k) Additional Documents. Any additional documents required by
this Agreement or that Purchaser or the Title Company may reasonably
require for the proper consummation of the applicable transaction as
contemplated by this Agreement, which documents shall be without cost or
additional liability to the Seller.
5.3 Purchaser's Deliveries in Escrow. At the Closing, Purchaser
shall deliver to the Title Company to hold in escrow for delivery upon the
Closing the following:
(a) Purchase Price. The Purchase Price less the Earnest Money,
plus or minus applicable prorations, shall be deposited by Purchaser with
the Title Company in immediately available funds (all or any part of which
may be the proceeds of a loan).
(b) Authority. Evidence of existence, organization and authority
of Purchaser and the authority of the person executing documents on behalf
of Purchaser reasonably satisfactory to Seller and the Title Insurer.
(c) Counterparts. Counterparts of the applicable Assignments or
other Seller deliveries which are also to be signed by Purchaser, duly
executed by Purchaser.
(d) Additional Documents. Any additional documents required by
this Agreement or that Seller or the Title Company may reasonably require
for the proper consummation of the transactions contemplated by this
Agreement, which documents shall be without cost or additional liability to
the Purchaser.
5.4 Closing Statements/Transfer Declarations. At the Closing, the
Seller and Purchaser shall execute closing statements and transfer tax
declarations (if applicable per Section 6.3 below) consistent with this
Agreement in form reasonably satisfactory to the parties and, if
applicable, as may be required by the Title Company.
5.5 Title Policy/Updated UCC Searches. At the Closing, the Title
Company shall deliver to Purchaser: (i) a Texas Form T-1 Owner's Policy of
Title Insurance (the "Title Policy") issued by the Title Insurer dated as
of the Closing in the amount of the Purchase Price, insuring Purchaser as
owner of good and indefeasible fee simple title to the Real Property,
subject only to the standard printed execptions (provided that the
exception for restrictive covenants shall be deleted or list only
restrictive covenants as may be Permitted Exceptions, the "areas and
boundaries" exception shall, at Purchaser's cost, be amended to except only
to shortages in area, taxes, assessments, standby fees and the like shall
be limited to those due for 1995 and subsequent years, and subsequent
assessments for prior years based on change of usage of ownership, all to
the extent not due and payable and any exception for parties in possession
shall be limited to the rights of tenants, as tenants only, pursuant to
unrecorded leases) and the Permitted Exceptions ; and (ii) updated UCC
Searches dated within five (5) days of Closing disclosing no security
interests or liens affecting the Property being conveyed other than those
to be released at the Closing. The Title Policy may be delivered within a
reasonable time after the applicable Closing if that is the custom for the
locality, provided, that the Title Insurer at the Closing issues a
currently effective, duly executed "marked-up" Title Commitment for the
Real Property and irrevocably commits in writing to issue the Title Policy
in the form of the "marked-up" Title Commitment within no more than ten
(10) days after the Closing Date.
5.6 Possession. At the Closing, Seller shall deliver to Purchaser
possession of the Property, subject only to the applicable Permitted
Exceptions.
5.7 Termination of Property Management and Other Service
Contracts. The Seller shall terminate effective as of the Closing Date any
existing property management agreements and any other terminable Service
Contracts applicable to the Property being conveyed at such Closing and
designated by Purchaser at least five (5) days prior to Closing. In
addition, if Purchaser requests upon expiration of the Review Period,
Seller shall also terminate any existing Leases (whether written, oral or
otherwise) on the applicable Property between Seller and any employee of
the existing property management firm under which rent is waived or is
discounted, such termination to be effective no later than thirty (30) days
from the Closing Date. Seller shall pay to Purchaser at Closing an amount
equal to the difference between (a) the actual rent payable under such
leases and (b) the full rental that would have been payable absent any
waived or discounted rent, for the period of time from the Closing Date
through the effective date of termination. The rent proration provided for
in Section 6.1(b) shall be based on the actual rental received by Seller.
5.8 Memorandum/Name of Representative. At the Closing, the Seller
shall deliver to Purchaser written memoranda containing all information
regarding the location and operation of all water, gas and other utility
meters, water sprinkler lines, valves and systems, air conditioning and
heating equipment, thermostats, fuse boxes and the like for the Property
included in the Closing, and the name of a representative of Seller who
will provide Purchaser with further information regarding the operation
Property after the Closing, such as the location of water, gas and other
utility meters, water sprinkler lines and valves, thermostats, fuse boxes
and the like.
5.9 Delivery of Books and Records. Immediately after the Closing,
Seller shall leave at the Property, or, if such items are not currently at
the Property, shall deliver to the offices of Purchaser or such other
location as Purchaser may designate, the original Leases and Service
Contracts; the Property's operating records including copies or originals
of all books and records of account, contracts, leasing correspondence,
receipts for deposits, unpaid bills and other similar papers or documents
which pertain to the Property; all available operating manuals, equipment
warranties, and the like; all advertising materials, booklets, and other
similar items, if any, used in the promotion of the Property; all keys and
combinations to locks; and all available architectural or construction
plans, specifications and working drawings for Improvements. The Seller's
obligations under this Paragraph shall survive the Closing.
5.10 Notice to Tenants and Vendors. Immediately after the Closing,
the Seller and Purchaser shall deliver to each vendor under the Service
Contracts a notice regarding the sale of the Property in form and substance
reasonably satisfactory to Purchaser and Seller. Immediately after the
Closing, the Seller and Purchaser shall deliver to each tenant under each
Lease a notice regarding the sale of the Property, such notice to be in the
form of Exhibit C-7 attached hereto.
5.11 Close of Escrow. Upon satisfaction or completion of the
foregoing conditions and deliveries and performance by each party of its
other obligations required to be performed prior to and/or at the
applicable Closing, the parties shall direct the Title Company to
immediately record the deed and deliver if not already delivered the
applicable documents described above to the appropriate parties and make
the disbursements according to the closing statements executed by the
Seller and Purchaser and to otherwise perform in accordance with the
parties' respective closing instruction letters, to the extent not
inconsistent with the terms of this Agreement.
5.12 Conditions Precedent.
(a) Conditions to Purchaser's Obligation to Close. Notwithstanding
anything to the contrary herein Purchaser's obligation to consummate its
purchase of the Property shall be further contingent upon:
(i) Seller's representations and warranties contained herein
shall be true and correct in all material respects as of the Closing.
(ii) The timely satisfaction or written waiver by Purchaser of
each obligation to be performed hereunder by Seller prior to and/or at the
Closing.
(iii) The Title Insurer's willingness to issue the Title
Policy.
(iv) The absence of any material litigation or other
proceedings with respect to the Property or otherwise affecting this
transaction, except for any such litigation which Purchaser has, in a
written notice delivered to Seller on or before the Closing Date, expressly
approved after full disclosure by Seller with respect to such proceedings.
(v) The absence of any other material adverse change in the
physical condition, tenancy, operations or financial condition of the
Property or Seller.
(b) Conditions to Seller's Obligation to Close. Notwithstanding
anything to the contrary herein, Seller' obligation at the Closing
hereunder to consummate its sale of the Property to Purchaser shall be
further contingent upon:
(i) Purchaser's representations and warranties contained
herein shall be true and correct in all material respects as of the
Closing.
(ii) The timely satisfaction or written waiver by Seller of
each obligation to be performed hereunder by Purchaser prior to and/or at
the Closing.
ARTICLE 6:
PRORATIONS/OTHER ALLOCATIONS AND DELIVERIES/EXPENSES
6.1 Prorations. The items in subparagraphs (a) through (d) of this
Section 6.1 and other items of Property income and expenses customarily
prorated in similar transactions shall be apportioned or prorated between
the Seller and Purchaser as of the close of the day preceding the Closing
Date in the manner set forth herein, or, if not provided for herein, then
as customary for such items for transactions in the metropolitan Austin,
Texas area. The parties shall endeavor to compute or estimate all closing
adjustments prior to the Closing Date, and the Seller shall supply before
such Closing satisfactory supporting evidence for all such adjustments as
Purchaser reasonably requests. Proration items shall include:
(a) Taxes and Assessments. General real estate taxes and
assessments imposed by governmental authority ("Taxes") and any assessments
by private covenant constituting a lien or charge on the Property for the
then-current calendar year or other current tax period not yet due and
payable. If the Closing for the Property occurs prior to the receipt by
the Seller of the tax bill for such Property for the calendar year or other
applicable tax period in which the Closing occurs, Taxes for such calendar
year or other applicable tax period shall be prorated based upon 100% of
the estimated Taxes calculated based upon the most recent ascertainable
assessed values and tax rates, but not less than 100% of the tax bill for
the previous calendar year or other applicable tax period. All prorations
shall be based upon a fraction determined by dividing the number of days
elapsed through the date of the applicable Closing by 365. Taxes for the
Property shall be re-prorated on the same fractional basis at the time that
the actual amount of the Taxes for the Property for the year or other
applicable tax period in question are finally determined. Payments in
connection with any re-proration of Taxes shall be due within 10 days of
written notice.
(b) Collected Rent. All collected rent and other income (and any
applicable state or local tax on rent) under Leases in effect with respect
to the Property. Seller shall be charged with any rentals collected by
Seller before the Closing, but applicable to any period of time after such
Closing. Uncollected rent and other income shall not be prorated. If
Purchaser collects up to "two month delinquencies" after the Closing,
Purchaser shall apply such rent to the obligations owing Purchaser for its
period of ownership and to its third party costs of collection, remitting
the balance, if any, to the Seller. "Two month delinquencies" are
delinquencies under Leases that are delinquent by only the monthly
installments that were due on the two due dates preceding the Closing Date.
Other than two month delinquencies, as provided above, no other rent
delinquent as of the Closing but collected after the Closing shall be
remitted to Seller. Purchaser shall bill and attempt to collect such
delinquent rent in the ordinary course of business, but shall not be
obligated to engage a collection agency or take legal action to collect any
delinquencies. Once the Closing has occurred, Seller shall not have any
right to seek by legal action or otherwise collection of any rents
delinquent for the Property for any period prior to the Closing, unless the
tenant has vacated the premises under the Lease before the Closing and the
Lease is not assigned to Purchaser. Any rent collected by Seller relating
to periods from and after the Closing shall by promptly paid over to
Purchaser by Seller.
(c) Utilities. Utilities, including water, sewer, electric, and
gas, based upon the last reading of meters at the Property prior to the
Closing. Seller and Purchaser shall endeavor to obtain meter readings and
account changeovers for the Property on the day before the Closing Date,
and if such readings and account changeovers are obtained, there shall be
no proration of such items. In such event, Seller shall pay the bills
therefor for the period to and including such Closing, and Purchaser shall
pay the bills therefor for the period subsequent thereto. If the utility
company will not read meters and issue separate bills, Purchaser will
receive a credit against the Purchase Price for Seller's portion of utility
charges based on historical utility charges for such month adjusted for
current rates per Section 6.1(f). In such event Purchaser will pay the
entire bill prior to delinquency after the subject Closing, but such
amounts will be reprorated per Section 6.1(f). If Seller has paid any
utilities no more than 30 days in advance in the ordinary course of
business, then Purchaser shall be charged its portion of such payment at
the Closing. In the event Seller allows deposits to remain with the
utility companies for the benefit of Purchaser, Seller shall receive a
credit at Closing in the aggregate amount of such deposits.
(d) Fees and Charges under Service Contracts. Fees and charges
under such of the Service Contracts as are being assigned to and assumed by
Purchaser at the Closing shall be apportioned on the basis of the periods
to which such Service Contracts relate. Seller shall pay all locator or
finders fees with respect to tenants who have moved in prior to Closing.
Purchaser shall pay, or reimburse to Seller, all such fees with respect to
tenants moving in after Closing, but only to the extent that any such fees
are due under Service Contracts delivered or made available to Purchaser
during the Review Period and are executed in accordance with Section 4.1
(c).
(e) Final Adjustment After Closing. In the event that final bills
cannot be issued for any charge prior to the Closing, then Purchaser and
Seller agree to allocate such items on a fair and equitable basis as soon
as such bills are available, final adjustment to be made as soon as
reasonably possible after the Closing. Payments in connection with the
final adjustment shall be due within 10 days of written notice. The
parties' obligations to re-prorate the items prorated at Closing shall
survive the Closing of the transactions contemplated hereby.
6.2 Tenant Deposits. All tenant security deposits (and interest
thereon if required by law or contract to be earned thereon) with respect
to the Property that have not been previously applied in accordance with
the terms of the leases shall, at Purchaser's election, be transferred or
credited to Purchaser at the Closing. In accordance with the terms of
Article 11 hereof, Seller shall indemnify and hold Purchaser harmless from
and against any loss, cost, liability or expense incurred by Purchaser by
reason of any security deposit paid by any tenant under any Lease (and
interest thereon, if required by law or contract to be earned thereon)
collected by Seller and not transferred or credited to Purchaser at the
Closing. In accordance with terms of Article 11 hereof, Purchaser shall
indemnify and hold Seller harmless against any liability or expense
incurred by Seller by reason of any tenant security deposit (and interest)
to the extent transferred or credited to Purchaser at Closing.
6.3 Sales, Transfer, and Documentary Taxes. All sales, gross
receipts, or compensating taxes, documentary taxes, transfer taxes, and
similar taxes and fees imposed upon the transfer of the Property under
applicable state, county, city or other local law shall be paid by the
Seller at Closing. The parties will execute and deliver any required
transfer or other similar tax declarations at the Closing.
6.4 Utility Deposits. The amount of deposits, if any, with utility
companies that are transferable and that are assigned by Seller to
Purchaser at Closing shall be credited to Seller.
6.5 Permit Transfer Fees. Customary fees paid or payable with
respect to permits and licenses assigned by Seller to Purchaser at the
Closing, with the consent or approval (if required) of the issuer thereof,
shall be charged to Seller.
6.6 Wages. The Seller shall pay the wages, employment taxes and
fringe benefits applicable thereto payable to employees, if any, of Seller
as of their discharge on the Closing Date.
6.7 Intentionally Deleted.
6.8 Commissions. Seller and Purchaser represent and warrant to one
another that they have not dealt with any real estate broker, sales person
or finder other than Davidson Conine in connection with this transaction.
In accordance with Article 11 hereof, Seller agrees to pay any and all
amounts due to Davidson Conine and indemnify, defend and hold harmless
Purchaser and its affiliates from and against any loss, cost, liability or
expense suffered or incurred by any such party as a result of a claim or
claims for brokerage commissions, finder's fees or other similar fees from
Davidson Conine or any other party or firm that is based on the act or
omission of Seller in breach of the above warranty. Purchaser agrees to
indemnify, defend and hold harmless Seller from and against any loss, cost,
liability or expenses suffered or incurred by any such party as a result of
a claim or claims for brokerage commissions, finder's fees or other similar
fees from any party or firm that is based on the act or omission of
Purchaser in breach of the above warranty.
6.9 Transaction Expenses. Upon the Closing of this transaction,
the parties will share expenses incurred at or in connection with the
Closing (the "Closing Costs") as follows: Seller will pay for the charges
and premiums for the Title Commitment, Title Policy, UCC Searches, Surveys,
recording fees, any transfer taxes, and one-half of any escrow fees;
provided, however, that Seller's costs with respect to the Title Policy
shall not include any amendment to the "areas and boundaries" exception,
which shall be paid by Purchaser. Purchaser will pay for all lender's
title insurance premiums and endorsements and all other matters relating to
Purchaser's financing (including recording fees for security documents),
and one-half of any escrow fees. Each party will pay its own attorneys'
fees in connection with this transaction. Otherwise, Closing Costs will be
borne as is customary for like transactions in the metropolitan Austin,
Texas area.
ARTICLE 7: REPRESENTATIONS AND WARRANTIES
7.1 Seller's Representations and Warranties. As a material
inducement to Purchaser to execute this Agreement and consummate the
transactions contemplated hereunder, Seller represents and warrants to
Purchaser that:
(a) Organization and Authority. Seller has been duly organized and
is validly existing and in good standing under the laws of its jurisdiction
of organization and, if different, is qualified to do business and in good
standing in the state in which the Property is located. Seller has the
full right and authority and has obtained any and all consents required
therefor to enter into and perform this Agreement. The persons signing
this Agreement on behalf of Seller are authorized to do so. This Agreement
and all of the documents to be delivered by Seller at the Closing have or
will have been duly authorized and properly executed and do and will
constitute the valid and binding obligations of Seller.
(b) Conflicts. The execution of and performance under this
Agreement does not and will not conflict with the terms of any of Seller's
constituent documents. There is no agreement to which Seller is a party
or, to Seller's knowledge, which is binding on Seller which is in conflict
with the execution of or performance under this Agreement or with the
obligations imposed upon or rights granted to Seller hereunder.
(c) Contractors and Suppliers. All contractors, subcontractors,
suppliers, architects, engineers and others who have performed services or
labor or supplied material in connection with Seller's ownership or
management of the Property have been paid in full and all liens arising
therefrom (or claims which with the passage of time or notice or both could
mature into liens) have been satisfied and released, except for bills or
work not more than thirty (30) days old incurred for routine maintenance in
the ordinary course of business for which a proration adjustment will be
made.
(d) Pending Actions. There is no litigation, action or proceeding
pending or, to Seller's knowledge, threatened (with respect to material
items) against or pertaining to the Property or any incident thereon, or
which challenges or impairs Seller's ability to execute, deliver or perform
under this Agreement except as set forth on Exhibit D.
(e) Rent Roll. Except as described in the Rent Rolls for the Real
Property, there are no Leases otherwise affecting the Real Property, and no
person, other than tenants under the Leases and subject to the Permitted
Exceptions, has any right of possession of all or any portion of the Real
Property. Except as otherwise specifically and expressly set forth in the
Rent Roll for the Real Property: no presently outstanding rent concessions
have been given to any tenants; no rent has been paid in advance by any
tenants respecting a period subsequent to the Closing (except for the month
in which the Closing occurs); no tenants have any claim against Seller for
any security deposit or other deposits or interest thereon, other than
pursuant to the terms of its Lease with respect to sums specified as
security deposits in the Rent Roll for such Property; no tenants have any
options or rights of first refusal to purchase or to extend or renew their
Leases or rent additional space; and, other than with respect to locator or
finders fees due under Service Contracts delivered or made available to
Purchaser during the Review Period, and payments under which are governed
by Section 6.1(d) above, there are no leasing or other commissions due, nor
will any become due, in connection with any Lease, any renewal or extension
of any Lease for which Seller is not responsible. To Seller's knowledge,
no tenants have asserted nor are there any defenses or offsets to rent
accruing after the Closing with respect to any Lease of the Property. To
Seller's knowledge, except as specifically set forth in the Rent Roll for
the Property, no default or breach exists on the part of any tenant.
Seller has not received any notice of any material default or material
breach on the part of the landlord under any Lease, nor, to the best of
Seller's knowledge, does there exist any such material default or material
breach on the part of the landlord. No understanding or agreement with any
party exists as to payment of any leasing commissions or fees regarding
future leases or as to procuring of tenants for the Property.
(f) Service Contracts. There are no management, service, supply,
equipment, rental or similar agreements affecting the Property, other than
the Service Contracts. The list and copies of Service Contracts provided
to Purchaser are true, correct and complete. No portion of the Property is
leased by Seller as tenant except as set forth on Exhibit E. Neither
Seller nor, to Seller's knowledge, any other party is in default with
respect to any of its material obligations or liabilities pertaining to the
Service Contracts.
(g) Operating Statements. The Operating Statements for the
Property show all items of income and expense (operating and capital)
incurred in connection with the Seller's ownership, operation and
management of the Property for the periods indicated and are true, correct
and complete in all material respects.
(h) Notice of Violations. Seller has not received any written
notice and Seller has no knowledge that the Property or the use thereof
violates or is a non-conforming use with respect to any Codes in any
material respect that have not been resolved to the satisfaction of the
issuer of the notice. With respect to this Section 7.1(h), Purchaser
acknowledges that the Property's compliance or non-compliance with the
Americans With Disabilities Act (the "ADA") is excluded from Seller's
knowledge representation set forth in this Section.
(i) Codes and Restrictions. Except for ADA compliance, to Seller's
knowledge, the Property and its current use and operation comply with all
Codes currently applicable or scheduled to become applicable to the
Property, and with all restrictions, covenants or similar agreements
affecting the Property. Except for items included in the Permitted
Exceptions, Seller has not entered into or has no knowledge of any
agreement with any governmental official, agency or body or with any other
person or entity with respect to any modification, variance or exception
regarding such Codes, or any restrictions, covenants or agreements
applicable to the Property.
(j) Utilities. To Seller's knowledge, all water, sewer, gas,
electric, telephone, drainage facilities and all other utilities required
for the operation of the Property as an apartment complex (collectively
"offsite utilities") are installed to the boundaries of the Property, are
connected with valid permits and fully paid tap-in or recapture fees, to
Seller's knowledge are in proper working order, and to Seller's knowledge
are adequate to serve the Property as presently constituted. To Seller's
knowledge, all licenses, permits, easements and rights-of-way required from
all governmental authorities having jurisdiction over the Property or from
private parties to make use of the offsite utilities in connection with the
operation of the Property are in existence and in full force and effect.
(k) Real Estate Taxes and Assessments. To Seller's knowledge and
except as disclosed in the Operating Statements there are not presently
pending any material assessments, or material governmental or quasi-
governmental (i.e., a body or entity deriving its authority from
legislative or governmental enactments) fees or charges of any nature with
respect to the Property or any part thereof, nor has Seller received any
notice of any such assessments, fees or charges which would be applicable
to the Property being contemplated.
(l) Fair Housing Act. There are no pending or, to Seller's
knowledge, threatened actions in connection with the Fair Housing Act (42
U.S.C. Section 3601 et seq., as amended) against Seller or its property
management company with respect to the Property.
(m) Hazardous Materials. To the best of Seller's knowledge,
without independent investigation, (1) there are no underground storage
tanks currently located on the Property and (2) no prior owner of the
Property or any other party has used the Property or placed under, on, or
above the Property, any Hazardous Materials other than those customarily
used in the management and operation of residential apartment complexes and
that have not been used, stored or disposed of in violation of any
Environmental Laws. Seller has not placed (or, to Seller's knowledge,
caused or permitted to be placed) any Hazardous Materials under, on, or
above the Property other than those customarily used in the management and
operation of residential apartment complexes and that have not been used,
stored or disposed of in violation of any Environmental Laws. Seller has
no knowledge of any claimed or actual noncompliance or violation of
Environmental Laws related to the Property, except in each case as
disclosed in the environmental reports listed on Exhibit F which have been
delivered to Purchaser within the Review Period provided for in Section
2.1. The term "Environmental Laws" shall include, without limitation, the
Clean Air Act, 42 U.S.C. Section 7401 et. seq.; the Clean Water Act, 33
U.S.C. Section 1251 et. seq., and the Water Quality Act of 1987; the
Federal Insecticide, Fungicide, and Rodenticide Act ("FIFRA"), 7 U.S.C.
Section 136 et. seq.; the Marine Protection, Research, and Sanctuaries Act,
33 U.S.C. Section 1401 et. seq.; the National Environmental Policy Act, 42
U.S.C, Section 4321 et. seq.; the Noise Control Act, 42 U.S.C. Section 4901
et. seq.; the Occupational Safety and Health Act, 29 U.S.C. Section 651 et.
seq.; the Resource Conservation and Recovery Act ("RCRA") 42 U.S.C. Section
6901 et. seq., as amended by the Hazardous and Solid Waste Amendments of
1984; the Safe Drinking Water Act, 42 U.S.C. Section 300f et. seq.; the
Comprehensive Environmental Response, Compensation and Liability Act
("CERCLA"), 42 U.S.C. Section 9601 et. seq., as amended by the Superfund
Amendments and Reauthorization Act, and the Emergency Planning and
Community Right-to-Know Act; the Toxic Substance Control Act ("TSCA"), 15
U.S.C. Section 2601 et. seq.; and the Atomic Energy Act, 42 U.S.C. Section
2011 et. seq., and any and all other applicable federal, state or local
statutes, laws, ordinances, codes, rules, regulations, orders or decrees
regulating, relating to, or imposing liability or standards of conduct
concerning, any hazardous, toxic or dangerous waste, substance or material;
all as amended from time to time, together with their implementing
regulations and guidelines. The term "Hazardous Materials" shall include,
without limitation, any hazardous substance, pollutant, or contaminant
regulated under CERCLA or any other Environmental Laws; oil and petroleum
products and natural gas, natural gas liquids, liquefied natural gas, and
synthetic gas usable for fuel; pesticides regulated under FIFRA; asbestos,
asbestos containing materials, polychlorinated biphenyls, and other
substances regulated under TSCA; source material, special nuclear material,
and by-product materials regulated under the Atomic Energy Act; and
industrial process and pollution control wastes to the extent regulated
under applicable Environmental Laws.
(n) No Defects in Work. To Seller's knowledge, there are no: (i)
material design, materials or workmanship defects in the Work (as defined
below) with respect to the Property and associated Improvements, (ii)
material deviation in the Work and the Improvements from the plans and
specifications delivered to Purchaser pursuant to Section 2.1 and (iii)
material non-compliance with all applicable Codes, in each case that would
affect Purchaser's ability to operate the Property in the same manner as
Seller has operated the Property. The term "Work" means the labor and
materials used in the construction of the Improvements and includes all
labor, materials, equipment and services of whatever nature required in
connection therewith. Except as otherwise disclosed by Seller to Purchaser
in writing within the applicable Review Period provided in Section 2.1, all
apartment units with respect to the Property are in rentable condition,
suitable for occupancy.
(o) Withholding Obligation. The sale of the Property is not
subject to any Federal, state or local withholding obligation of Purchaser
under the tax laws applicable to Seller or any of the Property.
(p) Condemnation. No condemnation or other governmental taking
proceedings and no rezoning proceedings relating to the Property are
pending or, to Seller's knowledge, threatened.
(q) Insurer Notices. Seller has not received any notice from any
insurance company or board of fire underwriters of any defects or
inadequacies respecting the Property which would adversely affect the
insurability of the Property or cause an increase in the premiums for the
Property which have not been cured or repaired to the satisfaction of the
party issuing the notice.
(r) Deliveries. To the extent prepared by Seller, its property
manager or investment advisor, all Operating Statements, Rent Rolls,
Service Contracts, Leases, books, records, schedules, exhibits, and other
items delivered or made available to Purchaser pursuant to the terms of
this Agreement are true, accurate and complete in all material respects.
The information to be furnished by Seller on which the computation of
closing prorations, adjustments and payments will be based shall, to the
extent then available, be true, correct and complete in all material
respects.
(s) Condition. To the best of Seller's knowledge, except as
disclosed on Exhibit G, (i) all building systems and mechanical equipment,
including, without limitation, the plumbing, air conditioning, heating,
ventilation, hot water heaters and electrical systems, and all appliances
(including, without limitation, substantially all stoves, refrigerators,
and dishwashers associated with individual apartment units) are in
serviceable and safe operating condition, and (ii) the Improvements
including the roofs and foundations thereof are in sound structural
condition, with no material leaks or other material defects.
(t) Financial Statements. All financial statements delivered by or
on behalf of Seller to Purchaser present fairly, in all material respects,
the results of operations for the relevant periods then ended. At
Purchaser's request, Seller agrees to make available to Purchaser or
Purchaser's designated representative (at Purchaser's cost) all financial
books and records for the Property for the period from January 1, 1991
through December 31, 1994.
(u) IRPTA Inapplicability. The Property does not contain any
"facilities" which are subject to reporting under Section 312 of the
Federal Emergency Planning and Community Right-To-Know Act of 1986 and
federal regulations promulgated thereunder nor does the Property contain
underground storage tanks which require notification under Section 9002 of
the Solid Waste Solid Disposal Act, as now or hereafter amended (42 U.S.C.
6991).
(v) ERISA. Based on Purchaser's representation set forth in
Section 7.2(c) hereof, none of the transactions contemplated in this
Agreement constitute a non-exempt prohibited transaction under Section
406(a) of the Employee Retirement Income Security Act of 1974, as amended
("ERISA") or Section 4975 of the United States Internal Revenue Code of
1986, as amended (the "Code").
(w) Assignment of Leases. Seller is the absolute owner of all of
the landlord's right, title and interest in and to the Leases and that such
right, title and interest is free of any lien or charge and is not subject
to any assignment, transfer, or hypothecation.
(x) Bill of Sale. Seller is the absolute owner of the property
conveyed pursuant to the Bill of Sale executed pursuant to Section 5.2(c)
hereof, that Seller has not sold, assigned, transferred or set over such
property to any other person or entity, that such property is free and
clear of all liens, charges and encumbrances, that Seller has full right,
power and authority to sell such property and to make and execute such Bill
of Sale, and that there are no taxes or other charges currently due and
owing which could give rise to a lien or charge on such property.
(y) Assignment of Intangible Property. Seller has not assigned,
transferred or hypothecated its interest in the property conveyed pursuant
to the assignment of intangible personal property delivered pursuant to
Section 5.2(d) hereof, to any other person or entity, which assignment or
hypothecation shall not have been released as of the Closing Date.
(z) Assignment of Service Contracts. Seller is the absolute owner
of the respective right, title and interest in and to the Service Contracts
conveyed pursuant to the Assignment of Service Contracts delivered pursuant
to Section 5.2(i) hereof and that such right, title and interest is free of
any lien or charge (other than those charges being prorated pursuant to
this Agreement) and is not subject to any assignment, transfer or
hypothecation.
As used herein, the phrase to "the best of Seller's knowledge" or to
"Seller's knowledge" or any derivation thereof, shall mean the actual
knowledge, without any independent investigation or inquiry, of any one of
John Allen, Cindy Martinez or Frederika Tschoepe.
7.2 Purchaser's Representations and Warranties. As a material
inducement to Seller to execute this Agreement and consummate this
transaction, Purchaser represents and warrants to Seller that:
(a) Organization and Authority. Purchaser has been duly organized
and is validly existing as a Delaware limited liability company, in good
standing in the State of Delaware. Purchaser at Closing will be duly
organized and validly existing and in good standing in its state of
organization and in all jurisdictions where its operations or properties so
require. Purchaser shall have the full right and authority and shall have
obtained any and all consents required to enter into and perform this
Agreement. The persons signing this Agreement on behalf of Purchaser are
authorized to do so. All of the documents to be delivered by Purchaser at
the Closing will have been duly authorized and properly executed and will
constitute the valid and binding obligations of Purchaser.
(b) Conflicts. The execution of and performance under this
Agreement does not and in the case of Purchaser will not conflict with the
applicable organizational documents of Purchaser. There is and at Closing
will be no agreement to which Purchaser is a party or, to Purchaser's
knowledge, binding on Purchaser which is and at Closing will be in conflict
with the execution of or performance under this Agreement.
ve ERISA. Neither Purchaser is, nor will its permitted assignee
pursuant to Section 10.1 hereof be, an entity deemed to hold "plan assets"
within the meaning of 29 C.F.R. Section 2510.3-101 of any employee benefit
plan subject to Title I of ERISA or Section 4975 of the Code nor are they
fiduciaries to the beneficiaries of the shareholder of Seller which
beneficiaries are identified on Exhibit I.
7.3 Survival of Representation, Warranties and Covenants. The
continued validity in all material respects of the foregoing
representations and warranties shall be a condition precedent to the
obligation of the party(ies) to whom the representation and warranty is
given to close the transactions set forth herein. In the event at any time
prior to the Closing, Seller learns or has reason to believe that any of
Seller's representations and warranties is no longer true or correct,
Seller shall immediately notify Purchaser in writing and therein shall
specify the factors rendering or likely to render such representations or
warranties untrue or incorrect.
If Purchaser has actual knowledge (by Seller's notice set forth above
in this Section 7.3 or otherwise) that any of Seller's representations and
warranties shall not be true and correct in all material respects at any
time on or before the Closing Date (whether or not true and correct as of
the date of this Agreement or whether any change in facts or circumstances
has made the applicable representation and warranty no longer true and
correct, and regardless as to whether the applicable representation or
warranty is qualified to Seller's knowledge or otherwise), then Purchaser
may, at Purchaser's option exercised by written notice to Seller delivered
on or before the Closing Date, and as its sole and exclusive remedies,
either (i) proceed with this transaction, thereby accepting and waiving the
applicable representation and warranty as being modified by Seller's
notification, if any, or Purchaser's actual knowledge; or (ii) terminate
this Agreement and declare this Agreement of no further force and effect,
and in which event the Earnest Money then held by the Title Insurer shall
promptly be returned to Purchaser. Purchaser may exercise such rights for
breach of representations and warranties whether or not Seller has notified
Purchaser as provided above. For purposes of this Section 7.3, Purchaser's
"actual knowledge" shall be deemed to include that knowledge actually known
to Purchaser, its employees, agents and contractors as well as any facts
contained in the documents concerning the Property that Seller either
delivered to Purchaser or made available to Purchaser.
All representations and warranties set forth above shall be
continuing and deemed remade as of the Closing Date and shall survive the
Closing, subject to Section 10.5.
ARTICLE 8: DAMAGE OR DESTRUCTION/CONDEMNATION
8.1 Damage or Destruction. The risk of loss of or damage to the
Property by reason of any insured or uninsured casualty during the period
up to and including the Closing Date shall be borne by Seller. In the
event of any material damage to or destruction of the Property, Purchaser
may, at its option, by notice to Seller given within 10 days after
Purchaser is notified of such damage or destruction (and at Purchaser's
option the Closing for the Property shall be extended, if necessary, to
give Purchaser such 10-day period to respond to such notice) elect (i) not
to purchase the Property and (ii) to proceed under this Agreement. In the
event Purchaser is proceeding under clause (ii), Purchaser shall receive
all insurance proceeds for any damage to the Property which are due the
Seller as a result of such damage or destruction. In such event, Purchaser
shall receive a credit at the Closing for any deductible under said
insurance policies, up to the cost of repairing such damage or destruction.
If the Property is not materially damaged, then Purchaser shall not
have the right to terminate this Agreement as a result of such damage but
Seller shall at its cost repair the damage before the Closing in a manner
reasonably satisfactory to Purchaser, or if repairs cannot be completed
before the applicable Closing, credit Purchaser at such Closing, for the
reasonable cost to complete the repair.
For purposes of this Article 8 only "Material damage" and "Materially
damaged" mean damage reasonably exceeding $100,000 to repair.
8.2 Condemnation. In the event of any threatened, contemplated,
commenced or consummated proceedings in eminent domain or other
governmental taking (notice of which shall be given to Purchaser by Seller
immediately) (a "condemnation proceeding") respecting the Property,
Purchaser may, at its option, by notice to Seller given within 10 days
after Purchaser is notified of such actual or possible proceedings (and at
Purchaser's option the Closing shall be extended, if necessary, to give
Purchaser such 10 day period to respond to such notice) Purchaser may (i)
elect not to purchase the Property or (ii) to proceed under this Agreement
without reduction in Purchase Price. In the event Purchaser is proceeding
under clause (ii) Seller shall at the Closing assign to Purchaser its
entire right, title and interest in and to any condemnation award for the
Property and Purchaser shall have the sole right during the pendency of
this Agreement and after the Closing for the Property to negotiate and
otherwise deal with the condemning authorities in respect of such matters.
ARTICLE 9: REMEDIES
fec Purchaser's Default. If the transaction contemplated hereby
does not close by reason of a default by Purchaser in any of the terms
hereof (as opposed to by reason of failure of any contingency to
Purchaser's obligations hereunder), then Seller may, as its sole and
exclusive remedy receive all Earnest Money deposited to the date of such
default, and pursue against Purchaser any and all rights and remedies
available at law or equity to obtain from Purchaser copies of all items to
be delivered pursuant to Section 2.1(e) above. The parties acknowledge
that Seller's actual damages in the event of a default by Purchaser under
this Agreement will be difficult to ascertain, and that Seller's receipt of
the Earnest Money as liquidated damages represent the parties' best
estimate of such damages.
9.2 Seller's Default. If the transaction contemplated hereby does
not close by reason of a default by Seller in any of the terms hereof (as
opposed to by reason of failure of a contingency to any of Seller's
obligations hereunder), then Purchaser may, as its exclusive remedies: (a)
pursue specific performance, injunctive or other similar relief to enforce
this Agreement, or (b) rescind this Agreement and receive a refund of all
Earnest Money deposited to date (including all interest thereon) and in
conjunction therewith pursue against Seller any and all rights and remedies
available at law or equity to obtain from Seller (i) reimbursement for the
payment of all costs and expenses allocable to Seller under Section 6.9 of
this Agreement, and (ii) if Seller's default was due to an intentional, bad
faith breach by Seller of its obligations and covenants under Sections 4.1
(a), (c) and (g), then reimbursement for all out-of-pocket expenses of
Purchaser in connection with this transaction, up to $35,000 (items (i) and
(ii) being agreed liquidated damages). The parties acknowledge that
Purchaser's actual damages in the event of a default by Seller will be
difficult to ascertain, and that such liquidated damages represent the
parties' best estimate of such damages.
ARTICLE 10: MISCELLANEOUS
10.1 Parties Bound. Subject to Purchaser's rights below in this
Section 10.1, no party may assign this Agreement before the Closing without
the prior written consent of the other party hereto, and any such
prohibited assignment shall be void. It is understood that Purchaser may
assign its rights and obligations under this Agreement to an entity (a
"Permitted Assignee") which is owned by Purchaser or is under common
ownership with Purchaser or is an entity which Purchaser manages or
controls, or for which Purchaser is acting as investment manager, or is an
entity in which Purchaser is a general partner, in which case Seller after
receiving notice thereof shall direct all performance and conveyances to
such permitted assignee and title may be taken in the name of a nominee or
a partnership in which a Permitted Assignee is a partner. Subject to the
foregoing, this Agreement and all provisions hereof, including, without
limitation, all representations and warranties made hereunder, shall extend
to, be obligatory upon and inure to the benefit of the respective heirs,
devisees, legal representatives, successors, assigns and beneficiaries of
the parties hereto. No assignment (including an assignment by Purchaser
permitted above) shall relieve the assignor of any obligation under this
Agreement whether arising before or after such assignment. Purchaser and
Seller acknowledge that all of Purchaser's representations and warranties
contained in Section 7.2 hereof shall remain true and correct after such
permitted assignment, with the understanding that the state of organization
of the permitted assignee may be other than Delaware.
10.2 Headings. The article and section headings of this Agreement
are for convenience only and in no way limit or enlarge the scope or
meaning of the language hereof.
10.3 Invalidity. If any portion of this Agreement is held invalid
or inoperative, then so far as is reasonable and possible the remainder of
this Agreement shall be deemed valid and operative, and effect shall be
given to the intent manifested by the portion held invalid or inoperative.
The failure by either party to enforce against the other any term or
provision of this Agreement shall be deemed not to be a waiver of such
party's right to enforce against the other party the same or any other such
term or provision.
10.4 Governing Law. This Agreement shall, in all respects, be
governed, construed, applied and enforced in accordance with the law of the
State of Texas.
10.5 Survival. The provisions of this Agreement that contemplate
performance after the Closing shall survive the Closing and shall not be
deemed to be merged into or waived by the instruments of such Closing;
provided, however, that except for the representations and warranties set
forth in Sections 6.8, 7.1(a) and (b) and Sections 7.2(a) and (b), which
representations and warranties shall survive forever, the representations
and warranties of Seller set forth in Section 7.1 and of Purchaser set
forth in Section 7.2 of this Agreement shall survive only for a period of
one (1) year after the Closing Date, and Purchaser shall have the right to
bring an action thereon only if Purchaser has given Seller written notice
within such applicable one (1) year period setting forth the nature and
basis of its claim.
10.6 No Third Party Beneficiary. Subject to Section 10.1 this
Agreement is not intended to give or confer any benefits, rights,
privileges, claims, actions or remedies to any person or entity as a third
party beneficiary, or otherwise.
10.7 Entirety and Amendments. This Agreement embodies the entire
agreement between the parties and supersedes all prior agreements and
understandings relating to the Property including without limitation that
certain letter agreement between Seller and Purchaser dated January 24,
1995. This Agreement may be amended or supplemented only by an instrument
in writing executed by the party against whom enforcement is sought.
10.8 Execution in Counterparts. This Agreement may be executed in
any number of counterparts, each of which shall be deemed to be an
original, and all of such counterparts shall constitute one Agreement. To
facilitate execution of this Agreement, the parties may execute and
exchange by telephone facsimile counterparts of the signature pages.
10.9 Further Assurances. In addition to the acts and deeds recited
herein and contemplated to be performed, executed and/or delivered at the
Closing, each party agrees to perform, execute and/or deliver (or cause to
be delivered, executed and/or delivered) to the other party on or after the
Closing, any and all further acts, deeds and assurances as may be
reasonably necessary to consummate the transactions contemplated hereby
and/or to further perfect and deliver to the conveyance, transfer and
assignment of the Property. Such deliveries shall be made at no cost and
with no additional liability to the party requested to deliver such further
assurances.
10.10 Time. Time is of the essence in the performance of each and
every term, condition and covenant contained in this Agreement.
10.11 Confidentiality. The parties will maintain the confidentiality
of the terms of this transaction and the contents of this Agreement and
other related documentation; provided that (a) Purchaser may disclose
material terms in discussions with prospective equityholders or lenders,
(b) Purchaser may disclose all matters which are required to be disclosed
by applicable law in any filings with the Securities and Exchange
Commission, and (c) either party may disclose matters to its accountants,
attorneys and other consultants with a need to know who are informed of
this confidentiality restriction.
10.12 U.S. Currency Required. All sums of money referred to herein
shall be in currency of the United States of America.
10.13 Attorneys' Fees. Should either party employ attorneys to
enforce any of the provisions hereof, the party losing in any final
judgment agrees to pay to the prevailing party all reasonable costs,
charges and expenses, including attorneys' fees, expended or incurred in
connection therewith.
10.14 Use of Pronouns. The use of the neuter singular pronoun to
refer to a party shall be deemed a proper reference, even though such party
may be an individual, partnership or a group of two or more individuals.
The necessary grammatical changes required to make the provisions of this
Agreement apply in the plural sense where there is more than one seller or
purchaser and to either partnerships or individuals (male or female) shall
in all instances be assumed as though in each case fully expressed.
10.15 Notices. All notices required or permitted hereunder shall be
in writing and shall be served on the parties at the following address:
If to Purchaser: c/o The RREEF Funds
875 N. Michigan Avenue
Suite 4114
Chicago, Illinois 60611
Attn: Charles B. Leitner
Phone: (312) 266-9300
Fax: (312) 266-9346
with a copy to: D'Ancona & Pflaum
30 N. LaSalle Street
Suite 2900
Chicago, Illinois 60602
Attention: Joel D. Rubin
Fax: (312) 580-0923
Phone: (312) 580-2000
If to Seller: Lin AM Series 85 Limited Partnership
c/o Amli Realty Co.
125 South Wacker Drive
Suite 3100
Chicago, Illinois 60606
ATTN: Mr. John Allen
Fax: (312) 443-0909
Phone: (312) 443-1477
With a copy to: Smith, Stern & Friedman, P.C.
3102 Oak Lawn, Suite 610
Dallas, Texas 75219
ATTN: Clifford L. Friedman, Esq.
Fax: 214-443-0088
Phone: 214-443-0066
Any such notices shall be either (a) sent by certified mail, return
receipt requested, in which case notice shall be deemed received three
business days after deposit, postage prepaid in the U.S. Mail and deemed
given on such deposit, (b) sent by overnight delivery using a nationally
recognized overnight courier, in which case it shall be deemed received one
business day after deposit with such courier and deemed given upon such
deposit, (c) sent by telefax, in which case notice shall be deemed both
given and received upon confirmed transmission of such notice, or (d) sent
by personal delivery, in which case notice shall be deemed both given and
received upon receipt or refusal of receipt. The above addresses may be
changed by written notice to the other party; provided, however, that no
notice of a change of address shall be effective until actual receipt of
such notice. Copies of notices are for informational purposes only, and a
failure to give or receive copies of any notice shall not be deemed a
failure to give notice.
10.16 Construction. The parties acknowledge that the parties and
their counsel have reviewed and revised this Agreement and that the normal
rule of construction to the effect that any ambiguities are to be resolved
against the drafting party shall not be employed in the interpretation of
this Agreement or any exhibits or amendments hereto.
10.17 Calculation of Time Periods. Unless otherwise specified, in
computing any period of time described herein, the day of the act or event
after which the designed period of time begins to run is not to be included
and the last day of the period so computed is to be included, unless
(except as otherwise specified) such last day is a Saturday, Sunday or
legal holiday, in which event the period shall run until the end of the
next day which is not a Saturday, Sunday, or legal holiday. The last day
of any period of time described herein shall be deemed to end at 5 p.m.
Dallas, Texas time.
10.18 Information and Audit Cooperation. Intentionally deleted.
10.19 Limitation of Liability. NOTWITHSTANDING ANYTHING TO THE
CONTRARY CONTAINED HEREIN OR IN ANY DOCUMENT EXECUTED IN CONNECTION WITH
THE TRANSACTIONS CONTEMPLATED HEREIN, NO PERSONAL LIABILITY OR PERSONAL
DEFICIENCY JUDGMENT SHALL BE ASSERTED OR ENFORCED AGAINST ANY PARTNERS OR
MEMBERS OF PURCHASER OR, EXCEPT AS SET FORTH BELOW, THE PARTNERS OR MEMBERS
OF PURCHASER'S ASSIGNEE MADE PURSUANT TO SECTION 10.1 HEREOF, AGAINST THE
TRUSTEES, OFFICERS, EMPLOYEES, AGENTS, PARTNERS, SHAREHOLDERS, PRINCIPALS
OR MEMBERS OF SUCH PARTNERS OR MEMBERS, OR AGAINST THE ASSETS OF ANY SUCH
PARTNERS' PARTNERS, SHAREHOLDERS, PRINCIPALS OR MEMBERS FOR PAYMENT OF ANY
AMOUNT DUE IN CONNECTION THEREWITH OR FOR OBSERVANCE OR PERFORMANCE OF ANY
OF THE OBLIGATIONS OF PURCHASER OR PURCHASER'S ASSIGNEE. WITHOUT LIMITING
THE GENERALITY OF THE FOREGOING, ANY NEGATIVE CAPITAL ACCOUNT OF ANY
PARTNER OR MEMBER IN PURCHASER OR PURCHASER'S ASSIGNEE OR THE OBLIGATION OF
ANY PARTNER OR MEMBER IN PURCHASER OR PURCHASER'S ASSIGNEE TO MAKE A
CAPITAL CONTRIBUTION TO PURCHASER OR PURCHASER'S ASSIGNEE SHALL NOT BE
DEEMED TO BE AN ASSET OF PURCHASER OR PURCHASER'S ASSIGNEE. SUBJECT TO THE
FOREGOING, ANY LIABILITY OR CLAIM AGAINST PURCHASER OR PURCHASER'S ASSIGNEE
SHALL ONLY BE ENFORCED, (1) IF PURCHASER DOES NOT ASSIGN ITS RIGHTS UNDER
THIS AGREEMENT, OUT OF PURCHASER'S ASSETS ONLY AND (2) IF PURCHASER DOES
ASSIGN ITS RIGHTS UNDER THIS AGREEMENT, OUT OF PURCHASER'S ASSETS AND
PURCHASER'S ASSIGNEE'S ASSETS ONLY INCLUDING THE ASSETS OF ANY GENERAL
PARTNER.
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN OR IN ANY
DOCUMENT EXECUTED IN CONNECTION WITH THE TRANSACTIONS CONTEMPLATED HEREIN,
NO PERSONAL LIABILITY OR PERSONAL DEFICIENCY JUDGMENT SHALL BE ASSERTED OR
ENFORCED AGAINST THE TRUSTEES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS,
PARTNERS, SHAREHOLDERS OR PRINCIPALS OF LINCAM PROPERTIES, INC., A DELAWARE
CORPORATION OR LINCAM ASSOCIATES, LTD., AN ILLINOIS LIMITED PARTNERSHIP,
THE SOLE GENERAL PARTNERS OF SELLER, OR AGAINST THE ASSETS OF SUCH
TRUSTEES, OFFICERS, DIRECTORS, PARTNERS OR SHAREHOLDERS FOR PAYMENT OF ANY
AMOUNT DUE IN CONNECTION THEREWITH OR FOR OBSERVANCE OR PERFORMANCE OF ANY
OF THE OBLIGATIONS OF SELLER.
10.20 As Is - Where Is. Except for the specific representations and
warranties set forth in this Agreement, Seller is conveying to, and the
Purchaser is accepting, the Property in its "As Is, Where Is" condition on
the Closing Date.
ARTICLE 11: INDEMNIFICATION
11.1 Seller's Agreements. Seller agrees, in addition to any other
indemnities of such parties set forth in this Agreement, to indemnify,
defend and hold harmless Purchaser and its successors and assigns and the
advisers, affiliates, directors, officers, employees, shareholders, members
and partners of any of them (collectively, the "Purchaser Related Parties",
and individually a "Purchaser Related Party"), from and against any and all
claims, liabilities, damages, and penalties and any and all loss, cost, or
expense (including without limitation, reasonable attorneys' fees and court
costs) incurred by, or any amount due to a Purchaser Related Party incident
to, resulting from, or in any way arising out of any of the following
before or after the Closing Date:
(i) Subject to the applicable time periods set forth in
Section 10.5 hereof, any representation or warranty made by Seller
hereunder is not true and correct in all material respects when made or is
not true and correct in all material respects at the Closing; and
(ii) Any tort claim or breach of contract claim for
money due and owing in connection with the ownership or operation of the
Property by Seller to the extent such claim arises from incidents which
occurred prior to the Closing Date and are not monetary obligations
specifically identified and credited to (and assumed by) Purchaser at
Closing.
Subject to the applicable time limitations set forth in Section 10.5,
the obligations of Seller set forth in this Section 11.1 shall survive the
Closing of the transactions contemplated hereunder and, as to the
obligations set forth in Sections 6.8 and 6.9, any termination of this
Agreement.
11.2 Purchaser's Agreements. Purchaser hereby agrees, in addition
to any other indemnities of Purchaser set forth in this Agreement, to
indemnify, defend and hold harmless Seller and its respective successors,
assigns, affiliates, directors, officers, employees and partners
(collectively, the "Seller Related Parties", and individually a "Seller
Related Party") from and against any and all claims, liabilities, damages,
and penalties and any and all loss, costs, or expense (including without
limitation, reasonable attorneys' fees and court costs) incurred by, or any
amount due to a Seller Related Party incident to, resulting from, or in any
way arising out of any of the following:
(i) Any tort claim or breach of contract claim or other
claim for money due and owing in connection with the ownership or operation
of any of the Property by Purchaser to the extent that such claim arises
from incidents which occurred after the Closing Date or from monetary
obligations arising prior to the Closing but specifically identified and
credited to (and assumed by) Purchaser at Closing include those arising
after Closing; and
(ii) Subject to the time periods set forth in Section
10.5 hereof, any representation or warranty made by Purchaser hereunder is
not true and correct in all material respects when made or is not true and
correct in all material respects at the applicable Closing.
Subject to the time limitations set forth in Section 10.5 hereof, the
obligations of Purchaser set forth in this Section 11.2 shall survive the
applicable Closings of the transactions contemplated hereunder and, as to
the obligations set forth in Sections 2.1(b), 6.8 and 6.9, any termination
of this Agreement.
11.3 Procedures for Obtaining Indemnification. Any claim for
indemnification under Section 11.1, Section 11.2 or any other applicable
provision of this Agreement shall be made in accordance with the following
provisions:
(i) Definitions. For purposes of this Section 11.3, (a)
the term "Claim" shall mean any claim, litigation, setoff, defense,
counterclaim or other legal action taken or asserted by any person against
the Asserting Party, (b) the term "Asserting Party" shall mean the
indemnified party against whom a Claim is asserted and who seeks
indemnification under Section 11.1, Section 11.2 or any other applicable
provision of this Agreement and (c) the term "Defending Party" shall mean
the indemnifying party or parties from whom indemnification is sought under
Section 11.1, Section 11.2 or any other applicable provision of this
Agreement.
(ii) Notice of Claim; Assumption of Defense. If a Claim
is made against the Asserting Party which the Asserting Party believes to
be covered by a Defending Party's indemnification obligations hereunder,
the Asserting Party shall promptly notify the Defending Party of the Claim
and, in such notice shall offer to the Defending Party the opportunity to
assume the defense of the Claim within ten (10) business days after receipt
of the notice (with counsel reasonably acceptable to the Asserting Party).
If the Defending Party timely elects to assume the defense of the Claim,
the Defending Party shall do so on behalf of both the Asserting Party and
the Defending Party, unless both the Asserting Party and the Defending
Party are named in the same litigation and representation of both of them
by the same counsel would be inappropriate.
(iii) Right to Settle. If the Defending Party timely
elects to assume the defense of the Claim, the Defending Party shall have
the right to settle the Claim on any terms it considers reasonable as long
as the settlement shall not require the Asserting Party to render any
performance or pay any consideration without the Asserting Party's prior
written consent.
11.4 Right to Assume Defense. If the Defending Party fails timely
to elect to assume the defense of the Claim, or if the Defending Party
timely elects to assume the defense of the Claim but thereafter fails to
defend the Claim with diligence and continuity with counsel reasonably
acceptable to the Asserting Party, then the Asserting Party shall, after
five (5) days written notice to Defending Party, have the right to take
over the defense of the Claim and to settle the Claim on any terms the As-
serting Party considers reasonable. Any such settlement shall be valid as
against the Defending Party.
If the Defending Party assumes the defense of a Claim, the Asserting
Party may employ its own counsel but such employment shall be at the sole
expense of the Asserting Party. If the Defending Party assumes the defense
of a Claim but the same counsel may not appropriately represent both the
Asserting Party and the Defending Party, or if the Defending Party fails
timely to assume the defense of the Claim or, after having elected to
assume the defense fails to defend the Claim with diligence and continuity
with counsel reasonably acceptable to the Asserting Party, the Asserting
Party may, after five (5) days written notice to Defending Party, employ
its own counsel and such employment shall be at the sole expense of the
Defending Party.
Whether or not the Defending Party elects to assume the defense of a
Claim, the Defending Party shall cooperate with the Asserting Party in the
defense of the Claim.
IN WITNESS WHEREOF, the parties hereto have duly executed and
delivered this Agreement as of the day and year first above written.
PURCHASER
RREEF AMERICA L.L.C., a Delaware
limited liability company
By:________________________________
Name:______________________________
Title:_____________________________
SELLER
LINCAM PROPERTIES LTD. SERIES 85
BY: LINCAM PROPERTIES, INC., a
Delaware corporation, general partner
By:___________________________
Name:_________________________
Title:________________________
BY: LINCAM ASSOCIATES, LTD., an
Illinois limited partnership, general partner
By:___________________________
Name:_________________________
Title:________________________
AGREEMENT OF PURCHASE AND SALE
FOR
BARTON CREEK LANDING APARTMENTS
EXHIBITS
A - Legal Description of Real Property
B - Surveyor's Certificate
C - Form Closing Documents
C-1 Form Deed
C-2 Form Assignment of Lease
C-3 Form Bill of Sale
C-4 Form Assignment of Intangible Personal Property
C-5 Form Certificate of Representation and Warranty
C-6 Form Assignment and Assumption of Contract
C-7 Form Tenant Notice Letter
D - Litigation
E - Leased Property
F - Environmental Matters
G - Other Physical Matters
EXHIBIT A
LEGAL DESCRIPTION OF THE REAL PROPERTY
EXHIBIT B
SURVEYOR'S CERTIFICATE
I hereby certify to _________________________________,
________________________________, and ______________________ that on the
________ day of ______________, 1995, this survey was made on the ground
per the field notes and is true, correct, and accurate as to the boundaries
and areas of the subject property and the size, location, and type of
buildings and improvements thereon, and as to the other matters shown
thereon, that the area or quantity of the subject property as set forth in
this survey is accurate to the nearest one ten thousandth (1/10,000) of an
acre, and that this survey correctly shows (a) the location of all
easements, rights-of-way, improvements, signs, fences, drainage ditches,
impoundments, pits, railroads, streams, building setback lines, party
walls, and encroachments visible on the ground, or of record as contained
within a title report prepared by ________________________________________
Title Insurance Company, on ______________, 19__, Commitment No.
_______________, or of which I have knowledge or have been advised, whether
or not of record, affecting the subject property and the location of all
above-ground evidence of utility lines serving the subject property and,
except as shown, there exist on the subject property no such above-ground
evidence of easements, rights-of-way, improvements, signs, fences, drainage
ditches, impoundments, pits, railroads, streams, building setback lines,
party walls, and encroachments, and (b) the location of all above-ground
evidence of utility lines serving the subject property, and (c) the
location and number of all parking spaces, if any, including the location
and number of all parking spaces designated for handicap use, and (d) the
distance of improvements on the subject property at ground surface level to
the nearest facing exterior property line of the subject property, and to
any applicable setback lines and to other buildings on the subject
property, and (e) all curb cuts and means of ingress to and egress from the
subject property and the measured distance between such curb cuts, and (f)
the width(s) of the street(s) on which the subject property abuts and the
applicable right-of-way lines for said street(s).
Encroachments, as used herein, include encroachments or protrusions
onto the subject property by above-ground improvements on adjacent
property, rights-of-way or easements and encroachments or protrusions onto
adjacent property, rights-of-way, easements or building setbacks by any
above-ground improvements on the subject property and any conflicts or
overlaps of the metes and bounds calls of the subject property and those of
adjacent property, easements, or rights-of-way.
The subject property has restricted ingress and egress to and from
________________________________________________________ and
__________________________________________________ which is paved, public
right-of-way and is maintained by the ________ County Department of
Transportation, _________ County, _________.
No part of the subject property lies within a 100-year flood plain or
in an identified "flood hazard," as defined by the United States Department
of Housing and Urban Development, pursuant to the Flood Disaster Act of
1973, as amended.
This Survey substantially complies with the current Texas Society of
Professional Surveyors Standards and Specifications for a Category 1A,
Condition II survey and the standards for an ALTA-ASCM Urban survey.
DATED: _______________________
___________________________________
Registered Public Surveyor
Surveyor Number ___________________
EXHIBIT C-1
SPECIAL WARRANTY DEED
THE STATE OF TEXAS }
} KNOW ALL PERSONS BY THESE PRESENTS:
COUNTY OF TRAVIS }
THAT, LINCAM PROPERTIES LTD. SERIES 85, an Illinois limited
partnership (hereinafter referred to as "Grantor"), for and in
consideration of the sum of Ten and No/100 Dollars ($10.00) and other
valuable consideration to the undersigned paid by
_____________________________________________________ a
_________________________________________ (hereinafter referred to as
"Grantee"), the receipt and sufficiency of which consideration is hereby
acknowledged, has GRANTED, SOLD AND CONVEYED, and by these presents does
GRANT, SELL AND CONVEY unto Grantee, all of the following described
property in Travis County, Texas, to wit:
that certain parcel of real property described on Exhibit "A"
attached hereto and made a part hereof for all purposes, together with all
improvements thereon and all rights and appurtenances pertaining thereto
and all of the easements, rights-of-way, privileges, liberties,
hereditaments, strips and gores, streets, alleys, passages, ways, waters,
water courses, thereto belonging or appertaining, and all of the estate,
right, title, interest, claims or demands whatsoever of Grantors therein
and the streets and ways adjacent thereto, either in law or in equity;
subject, however, to those matters set forth on Exhibit "B" attached hereto
and made a part hereof.
TO HAVE AND TO HOLD the above described premises, together with all
and singular the rights and appurtenances thereto in anywise belonging unto
the said Grantee, its successors, legal representatives and assigns
forever, and Grantor does hereby bind itself, and its successors and
assigns to WARRANT AND FOREVER DEFEND all and singular the said premises
unto the said Grantee, its successors, legal representatives and assigns,
against every person whomsoever lawfully claiming or to claim the same or
any part thereof, by, through or under Grantor, but not otherwise.
EXECUTED this ______ day of _______________, 1995.
LINCAM PROPERTIES LTD. SERIES 85
BY: LINCAM PROPERTIES, INC., a
Delaware corporation, general partner
By:___________________________
Name:_________________________
Title:________________________
BY: LINCAM ASSOCIATES, LTD., an
Illinois limited partnership, general partner
By:___________________________
Name:_________________________
Title:________________________
[ACKNOWLEDGEMENTS]
Mailing Address of Grantee:
_____________________________
_____________________________
_____________________________
EXHIBIT C-2
ASSIGNMENT AND ASSUMPTION OF LEASES
STATE OF _______ }
} KNOW ALL MEN BY THESE PRESENTS:
COUNTY OF _______ }
FOR VALUE RECEIVED, LINCAM PROPERTIES LTD. SERIES 85, an Illinois
limited partnership ("Assignor"), hereby assigns, transfers, sets over and
conveys to _________________________________, a ________ limited
partnership ("Assignee"), all of Assignor's right, title and interest in
and to the leases ("Leases"), including any and all security deposits made
by tenants pursuant to said Leases, in effect at the real property
described on Exhibit A attached hereto, including without limitation, those
described in the rent roll attached hereto as Exhibit B.
Assignor shall defend, indemnify and hold harmless Assignee from any
liability, damages, causes of action, expenses, and attorneys' fees
incurred by Assignee by reason of the failure of Assignor to fulfill,
perform, discharge, and observe its obligations with respect to any of the
Leases arising prior to the date hereof. Assignee shall defend, indemnify
and hold harmless Assignor from any liability, damages, causes of action,
expenses, and attorneys' fees incurred by Assignor by reason of the failure
of Assignee to fulfill, perform, discharge, and observe its obligations
with respect to any of the Leases arising from and after the date hereof.
The provisions of Section 10.19 of that certain Agreement of Purchase
and Sale, dated as of February ___, 1995, by and between Assignor and
Assignee's predecessor in interest, RREEF America L.L.C., are incorporated
herein by reference as if fully set forth herein and are applicable to the
parties' obligations hereunder.
IN WITNESS WHEREOF, this Assignment and Assumption of Leases has been
duly executed and delivered as of this ______ day of _____________, 1995.
ASSIGNOR:
LINCAM PROPERTIES LTD. SERIES 85
BY: LINCAM PROPERTIES, INC., a
Delaware corporation, general partner
By:___________________________
Name:_________________________
Title:________________________
BY: LINCAM ASSOCIATES, LTD., an
Illinois limited partnership, general partner
By:___________________________
Name:_________________________
Title:________________________
[ACKNOWLEDGEMENTS]
EXHIBIT C-3
BILL OF SALE
FOR VALUE RECEIVED, LINCAM PROPERTIES LTD. SERIES 85, an Illinois
limited partnership ("Seller"), sells, assigns, transfers and sets over to
_________________________________, a _________ limited partnership
("Purchaser"), the following described personal property:
All equipment, machinery, furniture, furnishings, supplies and other
tangible personal property, of every nature and description, and all
replacements thereof, owned by Seller now or hereafter located in or on the
real estate commonly known as "Barton Creek Landing Apartments", which real
estate is described on Exhibit A attached hereto and made a part hereof,
excepting therefrom any furniture, furnishings articles of personal
property belonging to tenants occupying the improvements situated on said
real estate.
The property hereby assigned includes, without limitation, the
property described on Exhibit B attached hereto and made a part hereof.
IN WITNESS WHEREOF, Seller has duly executed and delivered this Bill
of Sale as of this _____ day of ______________________, 1995.
LINCAM PROPERTIES LTD. SERIES 85
BY: LINCAM PROPERTIES, INC., a
Delaware corporation, general partner
By:___________________________
Name:_________________________
Title:________________________
BY: LINCAM ASSOCIATES, LTD., an
Illinois limited partnership, general partner
By:___________________________
Name:_________________________
Title:________________________
[ACKNOWLEDGMENTS]
EXHIBIT C-4
ASSIGNMENT OF INTANGIBLE PROPERTY
FOR VALUE RECEIVED, LINCAM PROPERTIES LTD. SERIES 85, an Illinois
limited partnership ("Assignor"), sells, assigns, transfers, and sets over
unto _________________________________, a ________ limited partnership
("Assignee"), all the right, title and interest of Assignor in and to any
and all of the intangible personal property related to or used in
connection with the real property described on Exhibit A attached hereto
(the "Property"), including without limitation, all trade names and
trademarks associated with such Property including Assignors' right and
interest, if and to the extent Assignor has such rights and interests, in
the name of the Property, which is commonly known as "Barton Creek Landing
Apartments," the plans and specifications, and other architectural and
engineering drawings for the Property, if and to the extent Assignor has
any right, title or interest in and to such plans and specifications and
other architectural and engineering drawings for the Property, contract
rights related to the construction, operation, ownership or management of
the Property (but excluding Assignor's obligations thereunder except those
expressly assumed in writing), warranties, zoning approvals, building
permits and licenses (to the extent assignable), tenant lists,
correspondence with tenants and records (including, but not limited to,
those relating to taxes, insurance, maintenance, repairs, capital
improvements and services), booklets, manuals, advertising, and promotional
materials, including, without limitation, photographs and negatives,
correspondence with suppliers and telephone exchange numbers (if
available).
The provisions of Section 10.19 of that certain Agreement of Purchase
and Sale, dated as of February ___, 1995, by and between Assignor and
Assignee's predecessor in interest, RREEF America L.L.C., are incorporated
herein by reference as if fully set forth herein and are applicable to the
parties' obligations hereunder.
IN WITNESS WHEREOF, Assignor and Assignee have duly executed and
delivered this Assignment of Intangible Personal Property as of this _____
day of _______________, 1995.
ASSIGNOR:
LINCAM PROPERTIES LTD. SERIES 85
BY: LINCAM PROPERTIES, INC., a
Delaware corporation, general partner
By:___________________________
Name:_________________________
Title:________________________
BY: LINCAM ASSOCIATES, LTD., an
Illinois limited partnership, general partner
By:___________________________
Name:_________________________
Title:________________________
[ACKNOWLEDGEMENTS]
EXHIBIT C-5
CERTIFICATE UPDATING REPRESENTATIONS AND WARRANTIES
LINCAM PROPERTIES LTD. SERIES 85, an Illinois limited partnership
("Seller") certifies to _________________________________, a ________
limited partnership ("Purchaser"), that the representations and warranties
set forth in Article Seven of that certain Agreement of Purchase and Sale
("Agreement") dated as of __________________, 1995 between Seller and RREEF
America L.L.C. conveying the sale of certain real property in the State of
Texas more particularly described in the Agreement, and the updated Rent
Roll, updated list of Service Contracts and updated Operating Statement,
attached hereto as Exhibits A, B and C, respectively, are and remain, true,
complete and correct and are reaffirmed as of this date and survive the
Closing (as defined in the Agreement) for the period described therein.
The Seller makes this certification for Purchaser's benefit with the
understanding that Purchaser is relying upon this certificate in connection
with its purchase of the above-described property.
Duly executed and delivered as of this ______ day of __________,
1995.
LINCAM PROPERTIES LTD. SERIES 85
BY: LINCAM PROPERTIES, INC., a
Delaware corporation, general partner
By:___________________________
Name:_________________________
Title:________________________
BY: LINCAM ASSOCIATES, LTD., an
Illinois limited partnership, general partner
By:___________________________
Name:_________________________
Title:________________________
EXHIBIT C-6
ASSIGNMENT AND ASSUMPTION OF SERVICE CONTRACTS
STATE OF _______ }
} KNOW ALL MEN BY THESE PRESENTS:
COUNTY OF _______ }
FOR VALUE RECEIVED, LINCAM PROPERTIES LTD. SERIES 85, an Illinois
limited partnership ("Assignor"), hereby assigns, transfers, sets over and
conveys to _________________________________, a ________ limited
partnership ("Assignee"), all of Assignor's right, title and interest in
and to the service contracts and other agreements ("Service Contracts"), in
effect at the real property described on Exhibit A and listed on Exhibit B
attached hereto.
Assignor shall defend, indemnify and hold harmless Assignee from any
liability, damages, causes of action, expenses, and attorneys' fees
incurred by Assignee by reason of the failure of Assignor to fulfill,
perform, discharge, and observe its obligations with respect to any of the
Service Contracts arising prior to the date hereof. Assignee shall defend,
indemnify and hold harmless Assignor from any liability, damages, causes of
action, expenses, and attorneys' fees incurred by Assignor by reason of the
failure of Assignee to fulfill, perform, discharge, and observe its
obligations with respect to any of the Service Contracts arising from and
after the date hereof.
The provisions of Section 10.19 of that certain Agreement of Purchase
and Sale, dated as of February ___, 1995, by and between Assignor and
Assignee's predecessor in interest, RREEF America L.L.C., are incorporated
herein by reference as if fully set forth herein and are applicable to the
parties' obligations hereunder.
IN WITNESS WHEREOF, this Assignment and Assumption of Service
Contracts has been duly executed and delivered as of this ______ day of
_____________, 1995.
ASSIGNOR:
LINCAM PROPERTIES LTD. SERIES 85
BY: LINCAM PROPERTIES, INC., a
Delaware corporation, general partner
By:___________________________
Name:_________________________
Title:________________________
BY: LINCAM ASSOCIATES, LTD., an
Illinois limited partnership, general partner
By:___________________________
Name:_________________________
Title:________________________
ASSIGNEE:
___________________________________
EXHIBIT C-7
____________________, 1995
____________________________
Apartment No. ________
Barton Creek Landing
____________________________
Re: Notice of Change of Ownership of Barton Creek Landing
Apartments, Austin, Texas (the "Property")
Dear Resident:
For the purposes of complying with Section 92.105 of the Property
Code of the Revised Civil Statutes of the State of Texas, you are hereby
notified as follows:
1. That as of the date hereof,LincAm Properties Ltd. Series 85, an
Illinois limited partnership, has transferred, sold, assigned, and conveyed
the Property to _________________________________________________ (the "New
Owner").
2. The New Owner is, as of the date hereof, responsible for your
tenant security deposit and/or pet deposit in the aggregate amount of
$_________________ with respect to your leased premises at the Property.
3. Future rental payments with respect to your leased premises at
the Property should be made to the New Owner by delivering to the on-site
manager of the Property a check or money order payable to the order of
______________________.
Yours very truly,
NEW OWNER:
By:________________________________
Title:_____________________________
TRANSFER ACKNOWLEDGED:
LINCAM PROPERTIES LTD. SERIES 85
BY: LINCAM PROPERTIES, INC., a
Delaware corporation, general partner
By:___________________________
Name:_________________________
Title:________________________
BY: LINCAM ASSOCIATES, LTD., an
Illinois limited partnership, general partner
By:___________________________
Name:_________________________
Title:________________________
EXHIBIT D
LITIGATION
[To be provided during the Reveiw Period]
EXHIBIT E
LEASED PROPERTY
[To be provided during the Reveiw Period]
EXHIBIT F
ENVIRONMENTAL MATTERS
[To be provided during the Reveiw Period]
EXHIBIT G
OTHER PHYSICAL MATTERS
[To be provided during the Reveiw Period]
