UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
CURRENT REPORT
FORM 8-K
Pursuant to Section 13 or 15(d)
of the Securities Exchange Act of 1934
January 31, 2002
Date of Report (Date of earliest event reported)
DECADE COMPANIES INCOME PROPERTIES, A LIMITED PARTNERSHIP
(Exact name of registrant as specified in its charter)
Wisconsin 0-21455 39-1518732
(State or other jurisdiction (Commission File (IRS Employer
of incorporation) Number) Identification
No.)
250 Patrick Blvd, Suite 140
Brookfield, WI 53045-5864
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code:(262) 792-9200
ITEM 2: Acquisition or Disposition of Assets
On January 31, 2002, the Partnership sold The Meadows II (Phases
II, III & IV) Apartments located at 225 Thompson Drive in the city
of Madison, county of Dane, Wisconsin (the "Property") in a
transaction that was structured so as to qualify as a like-kind
exchange under Section 1031 of the Internal Revenue Code. In the
transaction, the Partnership transferred the property to Associated
Bank Milwaukee (a "Qualified Intermediary"), who in turn
transferred the property to T.P. Meadows Apartments, LLC (the
"Buyer"). The purchase price of $15,956,436 was paid in cash at
the closing pursuant to an Option to Purchase the Property dated
September 10, 2001. The net proceeds of approximately $6.7 million
(after pay-off of the mortgage of approximately $8.8 million,
mortgage prepayment penalty, sales commissions, closing prorations,
and related expenses) are being held by the Qualified Intermediary
pursuant to the terms of the Exchange Agreement between the
Partnership and the Qualified Intermediary and are intended to be
used for the acquisition of a replacement property.
There is no material relationship between the Buyer and the
Partnership or any of its affiliates, any General Partner, director
or officer of the Partnership, or any associate of any such General
Partner, director or officer.
The foregoing description of the sale of the Property does not
purport to be complete and is qualified in its entirety by
reference to the agreements between the parties, copies of which
are attached as Exhibits to this report.
ITEM 7: Financial Statements and Exhibits
(b) Pro Forma Financial Information
It is impracticable at this time to provide the required pro forma
financial information at the time this Form 8-K is being filed.
The Registrant will file the following required pro forma financial
information as an amendment to this report as soon as practicable,
and in any event no later than April 16, 2002:
Pro forma condensed balance sheet at December 31, 2001.
Pro forma condensed statement of income for the period ended
December 31, 2001.
Notes to pro forma financial information.
(C) Exhibits
See Exhibit Index following the Signature Page of this report,
which is incorporated herein by reference.
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 thereunto duly authorized.
Decade Companies Income Properties,
A Limited Partnership
(Registrant)
By: Decade Companies
(General Partner of the Registrant)
Date: February 15, 2002 By: /s/ Jeffrey Keierleber
Jeffrey Keierleber,
Principal Executive Officer and
Principal Financial and
Accounting Officer of the Registrant
DECADE COMPANIES INCOME PROPERTIES, A LIMITED PARTNERSHIP
(The "Registrant")
(Commission File No. 0-21455)
EXHIBIT INDEX
FORM 8-K CURRENT REPORT
Date of Report: January 31, 2002
Exhibit Filed
Number Description Herewith
10.31 Option to Purchase between Partnership and Comprehensive
Management Services, Inc. X
10.32 Letter Notice from Comprehensive Management Services,
Inc. exercising option to purchase. X
10.33 Exchange Agreement Between Partnership and Qualified
Intermediary X
10.34 Notice of assignment of Purchase and Sale Agreement
with respect to exchangor's like kind exchange with
buyer acknowledgment attached. X
10.35 Letter of Direction with respect to exchangor's like-kind
exchange X
10.36 Bill of Sale between the Partnership and T.P. Meadows
Apartments, LLC X
10.37 Assignment of Leases and Security Deposits between the
Partnership and T.P. Meadows Apartments, LLC X
10.38 Assignment of Contracts between the Partnership and T.P.
Meadows Apartments, LLC X
EXHIBIT 10.31
WB-24 OPTION TO PURCHASE
The Seller, DECADE COMPANIES INCOME PROPERTIES, a limited
partnership, hereby grants to Buyer, COMPREHENSIVE MANAGEMENT
SERVICES, INC., an option to purchase (Option) the Property known
as [Street Address] Meadows II Phases II, III & IV, 225 Thompson
Drive in the City of Madison, County of Dane, Wisconsin, (if this
Option is to be recorded, insert legal description at lines 218-224
or attach as an addendum per line 225) on the following terms:
DEADLINE FOR GRANT OF OPTION. This Option is void unless a copy of
the Option which has been signed by or on behalf of all Owners is
delivered to Buyer on or before September 10, 2001 (Time is of the
Essence).
OPTION TERMS. An option fee of $10,000.00 will be paid by Buyer
upon the granting of this Option, and shall not be refundable if
the Option is not exercised. If the Option is exercised,
$10,000.00 of the option fee shall be a credit against the purchase
price at closing. This Option may only be exercised by delivering
written notice to Seller no later than midnight, September 30,
2001. Buyer may sign and deliver the notice at lines 247-248, or
may deliver any other written notice which specifically indicates
an intent to exercise this Option. The option fee shall be paid to
and held by Decade Properties, Inc. This Option, or a separate
instrument evidencing this Option, may not be recorded. CAUTION:
FAILURE TO RECORD MAY GIVE PERSONS WITH SUBSEQUENT INTERESTS IN THE
PROPERTY PRIORITY OVER THIS OPTION.
TERMS OF PURCHASE. If this Option is exercised per the terms of
this Option, the following shall be the terms of purchase:
PURCHASE PRICE. Fifteen Million Nine Hundred Fifty-Six Thousand
Four Hundred Thirty-Six and No/100 Dollars ($15,956,436.00) will be
paid in cash or equivalent at closing unless otherwise provided
below.
ADDITIONAL ITEMS INCLUDED IN PURCHASE PRICE. Seller shall include
in the purchase price and transfer, free and clear of encumbrances,
all fixtures, as defined at lines 172-175 and as may be on the
Property on the date of this Option, unless excluded at lines 28-
29, and the following additional items: Personal property included
in the sale list to be provided to Buyer within five (5) days after
execution of this Option by Seller.
ITEMS NOT INCLUDED IN THE PURCHASE PRICE. Tenant's personal
property and laundry equipment owned by a third party.
CONVEYANCE OF TITLE. Upon payment of the purchase price, Seller
shall convey the Property by warranty deed (or other conveyance as
provided herein) free and clear of all liens and encumbrances,
except municipal and zoning ordinances and agreements entered under
them, recorded easements, recorded building and use restrictions
and covenants, general taxes levied in the year of closing and
rights of tenants, all recorded exceptions and matters of survey
(provided none of the foregoing prohibit present use of the
Property), which constitutes merchantable title for purposes of
this transaction. Seller further agrees to complete and execute
the documents necessary to record the conveyance.
PLACE OF CLOSING. (See Addendum)
OCCUPANCY. Occupancy of the entire Property shall be given to
Buyer at time of closing unless otherwise provided in this Option
(lines 218-224 or in an addendum per line 225). Occupancy shall be
given subject to tenant's rights, if any. Caution: Consider an
agreement which addresses responsibility for clearing the Property
of personal property and debris, if applicable.
LEASED PROPERTY. If Property is currently leased and lease(s)
extend beyond closing, Seller shall assign Seller's rights under
the lease(s) and transfer all security deposits and prepaid rents
thereunder to Buyer at closing. The terms of the (written)
lease(s), if any, are available for Buyer's review at Seller's
Brookfield office.
CLOSING PRORATIONS. The following items shall be prorated at
closing: real estate taxes, collected rents, private and municipal
charges, property owner's association assessments, fuel (final
readings of utilities shall be taken 24 hours before closing). Any
income, taxes or expenses shall accrue to Seller, and be prorated
through the day of closing. Net general real estate taxes shall be
prorated based on (the net general real estate taxes for the
current year, if known, otherwise on the net general real estate
taxes for the preceding year).
CAUTION: If proration on the basis of net general real estate
taxes is not acceptable (for example, completed/pending
reassessment, changing mill rate, lottery credits), insert
estimated annual tax or other formula for proration.
The Property is sold AS IS without representation or warranty by
the Seller whatsoever except as set forth on the Addendum attached
hereto.
PROPERTY DIMENSIONS AND SURVEYS. Buyer acknowledges that any land
dimensions, total square footage/acreage figures, or allocation of
acreage information, provided to Buyer by Seller or by a broker,
may be approximate because of rounding or other reasons, unless
verified by survey or other means. CAUTION: Buyer should verify
land dimensions, total square footage/acreage figures or allocation
of acreage information if material to Buyer's decision to purchase.
PROPERTY DAMAGE BETWEEN EXERCISE OF OPTION AND CLOSING. Seller
shall maintain the Property until the earlier of closing or
occupancy of Buyer in materially the same condition as of the date
Buyer exercises this Option, except for ordinary wear and tear.
If, prior to closing, the Property is damaged in an amount of not
more than five per cent (5%) of the purchase price, Seller shall be
obligated to repair the Property and restore it to the same
condition that it was on the day this Option is exercised. If the
damage is greater than 5% of the purchase price, Seller shall
promptly notify Buyer in writing of the damage and this Option may
be rescinded by Buyer and all Option fees paid by Buyer shall be
immediately returned to Buyer. Should Buyer elect to exercise this
Option despite such damage, Seller shall either repair the Property
and restore it to the same condition that it was on the day of
exercise of this Option, except for ordinary wear and tear or Buyer
shall be entitled to the insurance proceeds relating to the damage
to the Property, plus a credit towards the purchase price equal to
the amount of Seller's deductible on such policy.
BUYER DUE DILIGENCE. Prior to exercising this Option Buyer may
need to perform certain inspections, investigations and testing.
Buyer is only authorized to do those inspections, investigations
and tests which are authorized at lines 196-200 or lines 218-225.
In addition to these inspections, investigations and tests, Buyer
may need to obtain financing, approvals or other information,
including but not limited to building permits, zoning variances,
Architectural Control Committee approvals, review of condominium
documents, review of business records, estimates for utility hook-
up expenses, special assessments, charges for installation of roads
or utilities, etc. WARNING: If Buyer contemplates developing
Property or a use other than the current use, there are a variety
of issues which should be addressed in order to determine the
feasibility of development of, or a particular use for, a property.
Buyer is solely responsible for all expenses relating to financing,
inspections, investigations, testing, approvals, permits,
estimates, etc.
INSPECTIONS. An "inspection" is defined as an observation of the
Property which does not include testing of the Property , other
than testing for leaking LP gas or natural gas used as a fuel
source, which are hereby authorized. Seller agrees to allow
Buyer's inspectors reasonable access to the Property upon
reasonable notice for those inspections authorized at lines 197-
198. Buyer agrees to promptly restore the Property to its original
condition after Buyer's inspections are completed, unless otherwise
agreed in this Option.
TESTING. Except as otherwise provided, Seller's authorization for
inspections does not authorize Buyer to conduct testing of the
Property A "test" is defined as the taking of samples of materials
such as soils, water, air or building materials from the Property
and the laboratory or other analysis of these materials. Seller
agrees to allow Buyer's testers reasonable access to the Property
upon reasonable notice for those tests authorized at lines 199-200.
Note: The authorization for testing should specify the areas of
the Property to be tested, the purpose of the test, (e.g., to
determine if environmental contamination is present), any
limitations on Buyer's testing and any other material terms of the
authorization. Unless otherwise agreed, Buyer shall return the
Property to its original condition following testing. Seller
acknowledges that certain inspections or tests may detect
environmental pollution which may be required to be reported to the
Wisconsin Department of Natural Resources.
PRE-CLOSING INSPECTION. At a reasonable time, pre-approved by
Seller or Seller's agent, within 3 days before closing, Buyer shall
have the right to inspect the Property to determine that there has
been no significant change in the condition of the Property, except
for changes approved by Buyer.
CONDOMINIUM DISCLOSURES. If the Property is a Condominium, Seller
agrees to provide Buyer, at Seller's cost (see Wisconsin Statutes
703.20(2), complete copies of the disclosure materials
(organization and operational documents, plans, financial
statements, and in the case of a conversion (condominium property
information) as required by Wisconsin Statutes 703.33 no later
than 15 days prior to closing and any amendment to these materials
promptly after its adoption (except as limited for small
residential condominiums per Wisconsin Statutes 703.365). These
materials are available at cost from the condominium association.
As provided in Wisconsin Statutes 703.33(4), Buyer may, within
five business days after receipt of these documents, including any
material modification thereto, rescind this Option by written
notice mailed or delivered to Seller, the date of mailing or actual
delivery being the effective date of notice.
TITLE EVIDENCE.
FORM OF TITLE EVIDENCE. Seller shall give evidence of title in the
form of an owner's policy of title insurance in the amount of the
purchase price on a current ALTA form issued by an insurer licensed
to write title insurance in Wisconsin. CAUTION: IF TITLE EVIDENCE
WILL BE GIVEN BY ABSTRACT, STRIKE TITLE INSURANCE PROVISIONS AND
INSERT ABSTRACT PROVISIONS.
PROVISION OF MERCHANTABLE TITLE. Seller shall pay all costs of
providing title evidence. (See Addendum)
SPECIAL ASSESSMENTS. Special assessments, if any, for work
actually commenced or levied prior to date this Option is granted
shall be paid by Seller no later than closing. All other special
assessments shall be paid by Buyer. CAUTION: Consider a special
agreement if area assessments, property owner's association
assessments or other expenses are contemplated. "Other expenses"
are one-time charges or ongoing use fees for public improvements
(other than those resulting in special assessments) relating to
curb, gutter, street, sidewalk, sanitary and stormwater and storm
sewer (including all sewer mains and hook-up and interceptor
charges), parks, street lighting and street trees, and impact fees
for other public facilities, as defined in Wis. Stat. 66.55(1)(c)
& (f).
DELIVERY/RECEIPT. Unless otherwise stated in this Option, any
signed document transmitted by facsimile machine (fax) shall be
treated in all manner and respects as an original document and the
signature of any Party upon a document transmitted by fax shall be
considered an original signature. Personal delivery to, or actual
receipt by, any named Buyer or Seller constitutes personal delivery
to, or actual receipt by Buyer or Seller. Once received, a notice
cannot be withdrawn by the Party delivering the notice without the
consent of the Party receiving the notice. A Party may not
unilaterally reinstate a contingency after a notice of a
contingency waiver has been received by the other Party. The
delivery provisions in this Option may be modified when appropriate
(e.g., when mail delivery is not desirable (see lines 203-209).
Buyer and Seller authorize the agents of Buyer and Seller to
distribute copies of the Option to Buyer's lender, appraisers,
title insurance companies and any other settlement service
providers for the transaction as defined by the Real Estate
Settlement Procedures Act (RESPA).
DATES AND DEADLINES. Deadlines expressed as a number of "days"
from an event, such as exercise of this Option, are calculated by
excluding the day the event occurred and by counting subsequent
calendar days. The deadline expires at midnight on the last day.
Deadlines expressed as a specific number of "business days" exclude
Saturdays, Sundays, any legal public holiday under Wisconsin or
Federal law, and other day designated by the President such that
the postal service does not receive registered mail or make regular
deliveries on that day. Deadlines expressed as a specific number
of "hours" from the occurrence of an event, such as receipt of a
notice, are calculated from the exact time of the event, and by
counting 24 hours per calendar day. Deadlines expressed as a
specific day of the calendar year or as the day of a specific
event, such as closing, expire at midnight of that day.
FIXTURES. A "fixture" is defined as an item of property which is
physically attached to or so closely associated with land or
improvements so as to be treated as part of the real estate,
including, without limitation, physically attached items not easily
removable without damage to the Property, items specifically
adapted to the Property, and items customarily treated as fixtures.
ENTIRE CONTRACT. This Option, including any amendments to it,
contains the entire agreement of the Buyer and Seller regarding the
transaction. All prior negotiations and discussions have been
merged into this Option. This agreement binds and inures to the
benefit of the Parties to this Option and their successors in
interest.
DEFAULT. Seller and Buyer each have the legal duty to use good
faith and due diligence in completing the terms and conditions of
the terms of purchase after exercise of this Option. A material
failure to perform any obligation under the terms of purchase after
exercise of this Option is a default which may subject the
defaulting party to liability for damages or other legal remedies.
If Buyer defaults under the terms of purchase after exercise of
this Option, Seller may:
(1) terminate the purchase agreement; and
(2) receive the earnest money as liquidated damages, as its sole
remedy.
If Seller defaults under the terms of the purchase after exercise
of this Option, Buyer may:
(1) sue for specific performance; or
(2) terminate the purchase agreement and obtain return of earnest
money, as Buyer's sole remedies.
RENTAL WEATHERIZATION. (See Addendum)
PROPERTY ADDRESS. (See Addendum)
DELIVERY OF DOCUMENTS AND WRITTEN NOTICES. Unless otherwise stated
in this Option, delivery of documents and written notices to a
Party shall be effective only when accomplished by one of the
methods specified at lines 203-212.
(1) By depositing the document or written notice postage or fees
prepaid in the U.S. Mail or fees prepaid or charged to an account
with a commercial delivery service, addressed either to the Party,
or to the Party's recipient for delivery designated at lines 206 or
208 (if any), for delivery to the Party's delivery address at lines
207 or 209.
Seller's recipient for delivery (optional):
Seller's delivery address:
250 Patrick Boulevard, Suite 140, Brookfield, WI 53045
Buyer's recipient for delivery (optional):
Buyer's delivery address:
1996 S. Kirk Road, Suite 320, Geneva, IL 60134
(2) By giving the document or written notice personally to the
Party or the Party's recipient for delivery if an individual is
designated at lines 206 or 208.
(3) By fax transmission of the document or written notice to the
following telephone number:
Buyer: Seller: (262) 792-0808
TIME OF THE ESSENCE. "Time is of the Essence" as to payment of
option fees and all other dates and deadlines in this Option
except: None. If "Time is of the Essence" applies to a date or
deadline, failure to perform by the exact date or deadline is a
breach of contract. If "Time is of the Essence" does not apply to
a date or deadline, then performance within a reasonable time of
the date or deadline is allowed before a breach occurs. This
Property is not homestead property.
ADDITIONAL PROVISIONS.
ADDENDA. The attached Addendum, Exhibit A and Lead-Based Paint
Disclosure are made part of this Option. IF GRANTED, THIS OPTION
CAN CREATE A LEGALLY ENFORCEABLE CONTRACT. BOTH PARTIES SHOULD
READ THIS OPTION AND ALL ATTACHMENTS CAREFULLY. BROKERS MAY
PROVIDE A GENERAL EXPLANATION OF THE PROVISIONS OF THE OPTION BUT
ARE PROHIBITED BY LAW FROM GIVING ADVICE OR OPINIONS CONCERNING
YOUR LEGAL RIGHTS UNDER THIS OPTION OR HOW TITLE SHOULD BE TAKEN AT
CLOSING IF THE OPTION IF EXERCISED. AN ATTORNEY SHOULD BE
CONSULTED IF LEGAL ADVICE IS NEEDED.
(X) (Signature on Addendum)
(X) Buyer's Signature Print Name Here:
Social Security No. or FEIN (Optional) Date
(X)Buyer's Signature Print Name Here:
Social Security No. or FEIN (Optional) Date
SELLER GRANTS THIS OPTION. THE UNDERSIGNED HEREBY AGREES TO CONVEY
THE ABOVE-MENTIONED PROPERTY ON THE TERMS AND CONDITIONS AS SET
FORTH HEREIN AND ACKNOWLEDGES RECEIPT OF A COPY OF THIS OPTION.
(X) (Signature on Addendum)
Seller's Signature Print Name Here: Social Security
No. or FEIN (Optional) Date
(X) Seller's Signature Print Name Here:
Social Security No. or FEIN (Optional) Date
This Offer was presented to Seller by on at a.m./p.m.
THIS OPTION IS REJECTED . THIS OFFER IS COUNTERED
Seller's Initials Date
[See attached counter] .
Seller's Initials Date
NOTICE OF EXERCISE OF OPTION. By signing below and delivering this
notice (see lines 201-212) Buyer exercises the Option to Purchase.
(X) (X)
Buyer's Signature Date Buyer's Signature Date
ADDENDUM
BUYER: COMPREHENSIVE MANAGEMENT SERVICES, INC.
SELLER: DECADE COMPANIES INCOME PROPERTIES, A LIMITED PARTNERSHIP
PROPERTY LOCATION: MEADOWS II, PHASES II, III & IV, 225 North
Thompson Drive, Madison, WI (the "Property")
This Addendum supplements the terms and provisions contained in the
Option to Purchase, Form WB-24, to which this Addendum is attached,
and is an integral part thereof. The terms of this Addendum shall
supersede any contrary or inconsistent provisions in the printed
form to which this Addendum is attached.
Buyer's Due Diligence. In determining whether to exercise
this Option, the Buyer shall be permitted to review and
approve an inspection of the physical condition of the
Property including its environmental condition and to review
and approve the documents provided by the Seller hereunder and
all other aspects of the Property. The Buyer shall have
access to the Property for the purpose of such inspections
upon not less than one (1) day prior notice, but shall first
obtain the prior written consent of the Seller if the Buyer
desires to have any testing performed, which consent shall not
be unreasonably withheld. The Buyer hereby releases the
Seller and indemnifies and holds harmless the Seller with
respect to any injury, damage or loss occurring as a result of
said inspections. Said release and indemnification shall
survive the termination of this Option or closing. All of
Buyer's inspections, environmental audits and other due
diligence shall be at Buyer's sole expense.
Delivery of Documents. Within five (5) days after execution
of this Option by the Seller, the Seller shall deliver to the
Buyer the following:
Copy of the existing Survey of the Property, if any, in
Seller's possession;
Copies of the existing service and maintenance agreements
for the Property, and copies of all licenses and permits
relating to the Property, if any;
Copy of the existing environmental site assessment and
any engineering reports and tests for the Property, if
any, in Seller's possession;
Operating Statements for the operation of the Property
for 1999, 2000, and 2001 to date;
List of Personal Property which is included in the sale
to the Buyer;
Copy of real estate tax bills and assessments for the
Property for the 3 years immediately preceding the date
hereof to the extent in Seller's possession;
Copy of a rent roll for the Property as of a date in
September, 2001; and
Copy of the most recent title report or title policy for
the Property in Seller's possession.
It is understood that the documents delivered under Paragraphs 2A
and 2C above were prepared by a third party and are being provided
by the Seller for information purposes only without representation
or warranty by the Seller whatsoever.
Further the Buyer shall be permitted to inspect and review at
Seller's Brookfield office and obtain copies at Buyer's expense,
copies of all written leases and rental agreements with respect to
the Property.
3. Earnest Money. The Buyer shall pay together with Buyer's
written notice exercising this Option, earnest money in the
amount of $200,000.00 (the "Earnest Money"). All Earnest
Money shall be paid to and held by Chicago Title Insurance
Company, Waukesha, Wisconsin and shall be applied against the
Purchase Price at Closing. The Buyer shall pay any fees due
in connection with the holding of the Earnest Money by Chicago
Title Insurance Company.
4. Title Insurance. The Seller will obtain and deliver to the
Buyer within ten (10) days after Seller's execution of this
Option, a commitment for an Owner's Policy of Title Insurance,
from Chicago Title Insurance Company, in the amount of the
full Purchase Price, naming Buyer as the insured, which shall
insure Buyer's title to the Property in the condition required
by this contract. The Title Commitment shall be accompanied
by copies of any instruments of record reflected in said Title
Commitment. It is understood that the existing first mortgage
related liens shall be paid off at closing and title shall not
be conveyed subject to said liens, and the reference to such
liens in the Title Commitment shall not be considered an
objection. In the event that the Buyer does not exercise the
Option for the Property for the sole reason that the Seller's
title is not merchantable, then the option fee paid by the
Buyer for the Property shall be returned to the Buyer. If the
Buyer exercises this Option, the Buyer shall be deemed to have
accepted title in the condition set forth in said Title
Commitment (except for the first mortgage related liens which
shall be paid off at Closing) and title shall be conveyed
subject thereto.
The basic Title Commitment shall be at the Seller's expense and
include a Gap Endorsement and the general exceptions shall be
deleted from the Owner's Title Policy (except for any exceptions
relating to survey unless the Buyer at the Buyer's expense provides
a current survey acceptable to the Title Company for the removal of
same). If the Buyer desires any other endorsements, the Buyer
shall obtain same at the Buyer's expense.
5. Tenant Leases. The Seller shall not accept prepaid rent for
more than one (1) month in advance. The Buyer shall receive
a credit at Closing on the Closing Statement for all prepaid
rents. No free rent, rent concessions or rebates shall be
applicable for periods after Closing. At Closing, Buyer shall
receive a credit on the Closing Statement against the Purchase
Price for tenant security deposits held by Seller. At
Closing, the Seller and the Buyer shall execute an Assignment
and Assumption of Leases wherein Seller shall assign all of
its right, title and interest in and to all tenant leases
affecting the Property as of Closing. The Buyer shall
indemnify and hold harmless the Seller from any liability
under said tenant leases arising after the Closing and the
Seller shall indemnify and hold harmless the Buyer from any
liability under said tenant leases arising on or before
Closing.
6. Service and Maintenance Contracts and Agreements. At Closing,
the Buyer shall assume all of the Seller's obligations under
all of the service and maintenance contracts and agreements
delivered to the Buyer under Paragraph 2 above. The Buyer
shall indemnify and hold harmless the Seller from any and all
liability under said contracts and agreements arising after
the Closing. The Seller shall indemnify and hold harmless the
Buyer from any and all liability under said contracts and
agreements arising on or before Closing.
7. LEAD-BASED PAINT DISCLOSURES
EVERY PURCHASER OF ANY INTEREST IN RESIDENTIAL REAL PROPERTY ON
WHICH A RESIDENTIAL DWELLING WAS BUILT PRIOR TO 1978 IS NOTIFIED
THAT SUCH PROPERTY MAY PRESENT EXPOSURE TO LEAD FROM LEAD-BASED
PAINT THAT MAY PLACE YOUNG CHILDREN AT RISK OF DEVELOPING LEAD
POISONING. LEAD POISONING IN YOUNG CHILDREN MAY PRODUCE PERMANENT
NEUROLOGICAL DAMAGE, INCLUDING LEARNING DISABILITIES, REDUCED
INTELLIGENCE QUOTIENT, BEHAVIORAL PROBLEMS, AND IMPAIRED MEMORY.
LEAD POISONING ALSO POSES A PARTICULAR RISK TO PREGNANT WOMEN. THE
SELLER OF ANY INTEREST IN RESIDENTIAL REAL PROPERTY IS REQUIRED TO
PROVIDE THE BUYER WITH ANY INFORMATION ON LEAD-BASED PAINT HAZARDS
FROM RISK ASSESSMENTS OR INSPECTIONS IN THE SELLER'S POSSESSION AND
NOTIFY THE BUYER OF ANY LEAD-BASED PAINT HAZARDS. A RISK
ASSESSMENT OR INSPECTION FOR POSSIBLE LEAD-BASED PAINT HAZARDS IS
RECOMMENDED PRIOR TO PURCHASE.
The Buyer and Seller shall execute the Disclosure of Information on
Lead-Based Paint and/or Information on Lead-Based Paint form
attached hereto, which is incorporated herein by reference.
8. Assignment. The Buyer shall not be permitted to assign this
Agreement without the prior written consent of the Seller,
except that the Buyer shall be permitted to assign this Option
to an entity controlled by or affiliated with Comprehensive
Management Services, Inc.
9. Brokers. The Seller and the Buyer each represent and warrant
to the other that neither of them has dealt with any agent,
broker, finder or other person in connection with the
transaction contemplated by this Agreement in such a manner as
to give rise to any valid claim for a broker's, finder's or
similar fee, except for Decade Properties, Inc. and Siegel-
Gallagher, Inc., and the Seller and the Buyer each hereby
agree to indemnify and hold each other harmless from and
against any and all liability, obligation, loss, cost and/or
expense (including reasonable attorneys' fees) in connection
with the claims of any such other agent, broker, finder or
other person which are based on the conduct, actions or
agreements of the Seller or the Buyer. The Seller shall pay
the commission due to Decade Properties, Inc. and Siegel-
Gallagher, Inc. in the event this transaction closes.
10. Seller's 1031 Exchange. In the event the Buyer exercises this
Option and closes this transaction, it is understood that the
Seller intends this transaction to be a like-kind exchange
under Section 1031 of the Internal Revenue Code. It is
intended to be structured as a deferred exchange whereby the
Net Proceeds will be paid to a Qualified Intermediary and
shall be used for the acquisition of a Replacement Property.
The Buyer hereby acknowledges and consents that this Agreement
will be assigned to the Qualified Intermediary. The Buyer
shall cooperate and execute such documents as reasonably
necessary to evidence such like-kind exchange for the Seller.
The Buyer shall not be required to incur additional cost or
liability in connection with said cooperation.
11. Closing. The Closing shall take place at the offices of
Chicago Title Insurance Company, 20900 Swenson Drive,
Waukesha, Wisconsin on a date mutually agreed upon by the
parties, but in no event later than January 31, 2002.
12. Delivery of Option Fee. In the event that the Buyer fails to
exercise this Option by delivering written notice to the
Seller or fails to pay the Earnest Money required under
Paragraph 3 above, prior to midnight on September 30, 2001,
then this Option shall be null and void and the option fee
shall be paid and delivered to the Seller.
13. Rental Weatherization. This transaction is exempt from State
of Wisconsin Rental Weatherization Standards (Wisconsin
Administrative Code, Comm. 67). If not exempt the Seller will
be responsible for compliance, including all costs. If Seller
is responsible for compliance, Seller shall provide a
Certificate of Compliance at Closing.
14. Governing Law. The laws of the State of Wisconsin shall
govern the validity, construction, enforcement and
interpretation of this Agreement.
15. Entirety and Amendments. This Agreement embodies the entire
agreement between the parties relating to the Property and may
be amended or supplemented only by an instrument in writing
executed by the party against whom enforcement is sought.
16. Attorney Fees. In the event of any litigation arising out of
this Agreement, the prevailing party shall be entitled to
recover from the non-prevailing party its reasonable attorney
fees and court costs in connection with such litigation.
17. Binding Effect. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their
respective successors and assigns subject to the restrictions
in Paragraph 8 above.
18. Authority. The Buyer and the Seller respectively represent
and warrant that they each respectively have full power and
authority to enter into this Option and carry out the
transactions contemplated hereby, and the persons and entities
executing this Option are authorized to execute this Option
and any documents necessary to carry out the transactions
contemplated hereby. This Option constitutes a valid and
binding obligation of the Buyer and the Seller enforceable in
accordance with its terms.
19. Seller Representations and Warranties. The Seller hereby
represents and warrants to the Buyer as follows:
1. There is no litigation pending against the Seller which
adversely affects the Seller's title to the Property, and
the Seller has not received written notice from any party
making such a claim or threatening such litigation.
2. The Seller has received no written notice of a taking or
condemnation with respect to the Property except for
easements referred to in the Title Commitment. The
Seller has received no written notice with respect to
special assessments levied against the Property which are
payable after closing.
3. The Seller has received no written notice of any
violation of any environmental law with respect to the
Property, except for such matters disclosed in the
environmental site assessment delivered to the Buyer
under Paragraph 2 above.
20. Covenants of Seller. Except as otherwise set forth herein,
after the execution of this Option by the Seller, the Seller
shall not without the Buyer's prior written consent, which
consent shall not be unreasonably withheld, amend any existing
contract or agreement delivered under Paragraph 2B above, or
enter into any new contracts, leases (other than Approved
Leases, as hereinafter defined), easements or other agreements
affecting the Property in any manner (including title) that
would be binding on the Buyer or affect the Buyer's ownership
of the Property following the closing of the transactions
contemplated by this Agreement. For purposes hereof, the term
"Approved Leases" shall mean leases (residential only) having
a term of not more than 12 months and containing no rent
concessions which are applicable after the closing, and for
rents not less than the average rental applicable for similar
units. From and after the date of Seller's execution of this
Option until the Closing Date, the Seller shall be responsible
to continue to manage and maintain the Property, or cause its
current management agent to continue to manage and maintain
the Property, in a manner similar to which the Property is
currently being managed and maintained, and the Seller shall
pay the costs payable in connection therewith. At Closing,
all apartment units will be in rent-ready condition. After
the execution of the Option by the Seller, no new contracts
will be entered into without the Buyer's approval, which
approval shall not be unreasonably withheld.
21. Documents to be delivered at Closing.
1. The transaction contemplated by this Agreement shall be
consummated pursuant to an escrow closing with Chicago
Title Insurance Company at its office in Waukesha,
Wisconsin.
2. The Seller and the Buyer (as applicable) shall deliver or
cause to be delivered into escrow the following documents
duly executed by the appropriate signatory:
1. The Warranty Deed described in Lines 30-35 of the
printed form Option;
2. An Assignment and Assumption of Leases as described
in Paragraph 5 above;
3. A Bill of Sale conveying the Personal Property
included in the sale described in Paragraph 2E
above;
4. An Assignment and Assumption of Contracts as
described in Paragraph 6 above;
5. Copies of certificates of occupancy relating to the
Property to the extent in the Seller's possession.
6. A "non-foreign affidavit" that meets the
requirements of Section 1445 of the Internal
Revenue Code of 1986, as amended;
7. Such other closing documents (including gap
undertakings) as reasonably required by the Title
Insurance Company to give effect to the transaction
described in this Option;
8. A written termination of the existing management
agreement as of the closing date; and
9. A Closing Statement.
22. Real Estate Taxes. It is understood and agreed that title to
the Property shall not be conveyed to the Buyer subject to any
real estate taxes except for such taxes for the year of
closing, which shall be prorated as provided in Lines 45-49 of
the printed form.
IN WITNESS WHEREOF, the parties have executed this Option as of the
dates set forth opposite their names.
BUYER: COMPREHENSIVE MANAGEMENT SERVICES, INC.
Dated: By:/s/Ed Carson
SELLER:
DECADE COMPANIES INCOME PROPERTIES, A LIMITED PARTNERSHIP
By: Decade Companies, General Partner
By: Decade 80, Inc., General Partner
Dated: 9/16/01 By:/s/ Jeffrey Keierleber
Disclosure of Information on Lead-Based Paint and/or Lead-Based
Paint Hazards
Property Address: Meadows II Phases II, III & IV, 225 Thompson
Drive, Madison, WI
Seller(s): Decade Companies Income Properties, a Limited
Partnership/Seller's Agent: _______________
Purchaser(s): Comprehensive Management Services, Inc.
Lead Warning Statement
Every purchaser of any interest in residential real property on
which a residential dwelling was built prior to 1978 is notified
that such property may present exposure to lead from lead-based
paint that may place young children at risk of developing lead
poisoning. Lead poisoning in young children may produce permanent
neurological damage, including learning disabilities, reduced
intelligence quotient, behavioral problems, and impaired memory.
Lead poisoning also poses a particular risk to pregnant women. The
seller of any interest in residential real property is required to
provide the buyer with any information on lead-based paint hazards
from risk assessments or inspections in the seller's possession and
notify the buyer of any lead-based paint hazards. A risk
assessment or inspection for possible lead-based paint hazards is
recommended prior to purchase.
Seller's Disclosure (Check (1) or (2) below):
(1) Seller has knowledge of lead-based paint and/or that lead-
based paint hazards are present in the housing (explain).
(2) Seller has no knowledge of lead-based paint and/or lead-based
paint hazards in the housing.
Records and reports available to the Seller (Check (1) or (2)
below):
(1) Seller has provided the Purchaser with all available records
and reports pertaining to lead-based paint and/or lead-based paint
hazards in the housing (list documents below).
Lead Based Paint Inspection conducted by W.O., Ltd. On 9/30/96
(copy of Certificate attached).
(2) Seller has no reports or records pertaining to lead-based paint
and/or lead-based paint hazards in the housing.
Purchaser's Acknowledgment
Purchaser acknowledges receipt of copies of all information listed
above. Purchaser acknowledges receipt of the pamphlet Protect Your
Family From Lead in Your Home.
Purchaser has (check (1) or (2) below):
(1) received a 10-day opportunity (or mutually agreed upon period)
to conduct a risk assessment or inspection for the presence of
lead-based paint and/or lead-based paint hazards;
or
(2) waived the opportunity to conduct a risk assessment or
inspection for the presence of lead-based paint and/or lead-based
paint hazards.
Agent's Acknowledgment
Agent has informed the Seller of the Seller's obligations under 42
U.S.C. 4852d and is aware of Agent's responsibility to ensure
compliance.
Certification of Accuracy
The following parties have reviewed the information above and
certify, to the best of their knowledge, that the information they
have provided is true and accurate.
COMPREHENSIVE MANAGEMENT SERVICES, INC.
Purchaser By: /s/ Ed Carson Date
Seller Decade Companies Income Properties, a Limited Partnership
By: Decade Companies, General Partner Date
By: Decade 80, Inc., General Partner
Seller By:/s/ Jeffrey Keierleber Date
Agent Date
This Certifies That THE MEADOWS APARTMENTS had been inspected
August 1996 and found to have No Indication of Lead-Based Paint
In accordance with EPA 24 CFR Part 35, 40 CFR Part 745
Conducted by:
W.O., Ltd. (a division of schauer & associates, inc.)
6960 South 13th Street
P.O. Box 285
Oak Creek, WI 53154
I hereby certify that to the best of my knowledge, all testing was
done in accordance with the cited requirements, and that this
reflects the true Lead content of the surfaces at this property at
the time of this testing.
/s/ Paul D. Vandezande 9/30/96
MANAGER DATE
EXHIBIT 10.32
September 28, 2001
Via Facsimile 262-792-0808
Mr. Jeffrey Keierleber
Decade Companies
250 Patrick Boulevard, Suite 140
Brookfield, Wisconsin 53045
Re: Option to Purchase dated September 10, 2001 ("Option
Contract") by and between Decade Companies Income Properties, A
Limited Partnership ("Seller") and Comprehensive Management
Services, Inc. ("Buyer") for the purchase of Meadows II, Phases II,
III and IV, Madison, Wisconsin ("Property")
Dear Mr. Keierleber:
Buyer hereby exercises the Option to Purchase for the above
referenced Property.
This letter will also evidence the agreement of Buyer and Seller to
amend and restate, in its entirety, Paragraph 3 of the Addendum to
the Option Contract as follows:
"3. Earnest Money. The Buyer shall pay together with Buyer's
written notice exercising this option, Earnest Money in the amount
of $71,432 ("Initial Earnest Money"). On or before October 15,
2001, Buyer shall deposit the additional sum of $128,568 as
additional earnest money (the additional earnest money deposit and
the Initial Earnest Money shall be referred to as the "Earnest
Money"). All Earnest Money shall be paid to and held by Chicago
Title Insurance Company, Waukesha, Wisconsin in a Strict Joint
Order Escrow and shall be applied against the Purchase Price at
Closing. The Buyer shall pay any fees due in connection with the
holding of the Earnest Money by Chicago Title Insurance Company."
Except as modified above, all other terms of the Option
Contract shall continue in full force and effect.
COMPREHENSIVE MANAGEMENT SERVICES, INC.
By: /s/Raymond O'Machel
Its: Vice-President Property Acquisition
ACKNOWLEDGED, AGREED, AND ACCEPTED
SELLER: Decade Companies Income Properties, A Limited Partnership
By:/s/ Jeffrey Keierleber, General Partner of Decade Companies,
General Partnership
DATE: September 28, 2001
EXHIBIT 10.33
EXCHANGE AGREEMENT
AGREEMENT made as of this 28th day of January, 2002 by DECADE
COMPANIES INCOME PROPERTIES, A LIMITED PARTNERSHIP (hereinafter
"Exchangor") and ASSOCIATED BANK MILWAUKEE (hereinafter
"Facilitator").
WHEREAS, Exchangor has entered into an Option to Purchase dated
September 10, 2001, which option was exercised on September 28,
2001 with respect to certain real property owned by Exchangor in
the City of Madison, Dane County, Wisconsin, such real property
more particularly described on Exhibit A attached hereto, (such
real property hereinafter referred to as the "Exchange Property"
and such Agreement, as amended, hereinafter referred to as the
"Sale Agreement");
WHEREAS, Exchangor desires to structure its disposition of the
Exchange Property and its acquisition of one or more replacement
properties as a deferred like-kind exchange under Section 1031 of
the Internal Revenue Code of 1986, as amended, and intends that its
disposition of the Exchange Property and acquisition of one or more
replacement properties follow and comply with Example 4 of Treasury
Regulation Section 1.1031(k)-1(g)(8);
WHEREAS, in accordance with said Example 4, Exchangor and
Facilitator are entering into this Exchange Agreement to facilitate
an exchange of the Exchange Property for one or more replacement
properties; and
WHEREAS, Facilitator is a qualified intermediary as defined by the
Treasury Regulation Section 1.1031(k)-1(g)(4);
NOW, THEREFORE, for good and valuable consideration the receipt and
sufficiency of which is hereby acknowledged, it is agreed as
follows:
1. Retention of Facilitator. Exchangor hereby retains
Facilitator, and Facilitator hereby agrees to be retained by
Exchangor, to facilitate an exchange of the Exchange Property for
one or more replacement properties as provided herein.
2. Consideration. In consideration of Facilitator's services
hereunder, Exchangor shall pay Facilitator a fee equal to $100.00.
3. Assignment of Sale Agreements. Exchangor hereby assigns to
Facilitator and Facilitator hereby accepts from Exchangor all of
Exchangor's right, title and interest in and to the Sale Agreement;
provided that Facilitator incurs no liability by virtue of such
assignment other than the obligation to receive and deliver the Net
Exchange Property Proceeds and documents in accordance with this
Agreement and that all representations, warranties and obligations
of the Exchangor under the Sale Agreement remain the sole
obligation of the Exchangor. A copy of said Sale Agreement is
attached hereto as Exhibit G. Facilitator shall give to the buyer
of the Exchange Property written notice of the assignment to
Facilitator of Exchangor's right, title and interest in and to the
Sale Agreement. Such notice shall be given using the form attached
hereto as Exhibit B.
4. Direct Transfer of Exchange Property. In order to reduce
closing expenses, Facilitator shall execute a letter directing
Exchangor to transfer the Exchange Property to the buyer specified
in the Sale Agreement by executing a Warranty Deed and other
customary closing documents in the name of such buyer, pursuant to
the terms of the Sale Agreement, and by delivering the executed
Warranty Deed and other customary closing documents to Facilitator,
which shall deliver them to such buyer. Such letter shall be in
the form attached hereto as Exhibit C. Facilitator shall receive
from the buyer the net proceeds from the sale of the Exchange
Property (which net proceeds shall reflect the credits due to the
buyer and selling expenses due to Exchangor from the sale of the
Exchange Property).
5. Deposit of Net Exchange Property Proceeds. The net proceeds
from the transfer of the Exchange Property (hereinafter the "Net
Exchange Property Proceeds") shall be held by Facilitator subject
to the terms of this Agreement. The Net Exchange Property Proceeds
shall be invested in an interest-bearing account at the
Facilitator. Any interest earned on such account shall be added to
and included in Net Exchange Property Proceeds and as such shall be
subject to the restrictions set forth in Paragraph 6 below. The
Exchangor's Social Security Number is 39-1518732. It is understood
that the Facilitator shall pay from the proceeds it receives in
connection with the closing on the Exchange Property the commission
due to Decade Properties, Inc. arising from the transfer of the
Exchange Property when so directed, and said amount shall not be
deemed Net Exchange Property Proceeds hereunder.
6. Restrictions on Release of Net Exchange Property Proceeds.
Exchangor shall have no right to receive, pledge, borrow or
otherwise obtain the benefits of the Net Exchange Property Proceeds
(including any interest earned thereon) except that Exchangor shall
be entitled to the Net Exchange Property Proceeds if, and only if:
A. Exchangor has not identified any Replacement Property (as
defined below) prior to the end of the period beginning on the date
on which Exchangor transfers the first Exchange Property pursuant
to Paragraph 4 hereof, and ending at midnight on the forty-fifth
(45th) day thereafter (hereinafter the "Identification Period"), in
which event Exchangor shall be entitled to the Net Exchange
Property Proceeds only after the expiration of the Identification
Period; or
B. Exchangor has identified one or more Replacement Properties
prior to the expiration of the Identification Period and has
received all of the Replacement Properties to which Exchangor is
entitled under this Agreement; or
C. Exchangor has identified a Replacement Property prior to the
expiration of the Identification Period but Exchangor has not
acquired the Replacement Property prior to the earlier of (i) one
hundred eighty (180) days after the closing of the sale of the
first Exchange Property, or (ii) the due date (including
extensions) of Exchangor's federal income tax return for
Exchangor's taxable year in which the closing of the sale of the
Exchange Property occurs (hereinafter the "Exchange Period"), in
which event Exchangor shall be entitled to the Net Exchange
Property Proceeds after the expiration of the Exchange Period;
provided, however, that if (i) the Facilitator has executed one or
more contracts to purchase one or more Replacement Propert(ies)
which have not been acquired by the Facilitator within the
"Exchange Period" and (ii) the Facilitator reasonably determines
that it may be liable at law or in equity under such contracts, the
Facilitator is not required to pay to the Exchangor the funds
described in this paragraph until such time as the Facilitator
obtains a complete release of liability under such contracts from
the contract sellers thereto.
7. Identification of Replacement Properties; Assignment of
Purchase Agreement. On or before forty-five (45) days from the
date of the closing of the sale of the first Exchange Property,
Exchangor shall identify in writing to Facilitator one or more
like-kind properties to be exchanged by Facilitator for the
Exchange Property (hereinafter the "Replacement Properties"). Any
such identification shall be made using the form attached hereto as
Exhibit D. Exchangor shall then assign to Facilitator, and
Facilitator shall accept from Exchangor, all of Exchangor's right,
title and interest in and to any contract for the acquisition of a
Replacement Property with the owner of such Replacement Property
(hereinafter the "Purchase Agreement"); provided that Facilitator
incurs no liability by virtue of such assignment other than the
obligation to receive and deliver the Net Exchange Property
Proceeds and documents in accordance with this Agreement and that
all representations, warranties and obligations of the Exchangor
under the Purchase Agreement remain the sole obligation of the
Exchangor, and further provided that the seller under the Purchase
Agreement acknowledges in writing this limitation on Facilitator's
liability thereunder. Any such assignment shall be made using the
form attached hereto as Exhibit E. Facilitator shall then give
written notice of such assignment to the owner of the applicable
Replacement Property. Any such notice shall be given using the
form attached hereto as Exhibit F.
8. Delivery of Additional Funds. In the event the Net Exchange
Property Proceeds (plus interest earned thereon) are insufficient
to consummate the closing of the Replacement Properties, then
Exchangor shall pay to Facilitator any additional funds required
for the consummation of the closing of the Replacement Properties.
9. Direct Transfer of Replacement Properties and Acquisition of
the Replacement Properties. In order to reduce closing expenses,
Facilitator shall execute a letter directing the owner of each
Replacement Property to transfer such Replacement Property to
Exchangor by executing a Warranty Deed and other customary closing
documents in the name of Exchangor, pursuant to the terms of the
Purchase Agreement, and by delivering the executed Warranty Deed
and other customary closing documents to Facilitator, which shall
deliver them to Exchangor. Such letter shall be in the form
attached hereto as Exhibit F. Facilitator shall pay the owner of
the Replacement Property the net purchase price of the Replacement
Property using the Net Exchange Property Proceeds and any
additional funds delivered to Facilitator under Paragraph 8 (which
net purchase price shall reflect the credits due to Exchangor and
selling expenses due to the owner of the Replacement Property).
Subject to the condition that Exchangor shall have timely
identified the Replacement Properties, executed a contract for the
timely acquisition of the Replacement Properties, and delivered any
additional funds required under Paragraph 8 hereof, Facilitator
shall use its best efforts to consummate the closing of the
Replacement Properties prior to the expiration of the Exchange
Period.
10. Liability of Facilitator. Facilitator shall and does hereby
agree to act and to hold the Net Exchange Property Proceeds earned
thereon, and to disburse the same, only in accordance with the
terms and conditions of this Agreement. In the event Facilitator
shall be in doubt as to its duties with respect to the Net Exchange
Property Proceeds hereunder, Facilitator may interplead the Net
Exchange Property Proceeds in the Circuit Court in and for
Milwaukee County and shall have no further obligation in connection
herewith. Facilitator, at its option, may file a complaint for
appropriate relief in any court of competent jurisdiction.
Facilitator shall be indemnified by Exchangor from and against any
and all claims, liabilities, losses, judgments, costs and expenses,
including attorneys' fees at the trial and all appellate levels
incurred in its capacity as Facilitator or hereunder, except for
failure by Facilitator to comply in good faith with the terms
hereof. Exchangor hereby acknowledges that Facilitator has
rendered no advice regarding and has no liability in connection
with the qualification of this transaction for the benefits of
Section 1031 of the Internal Revenue Code.
11. Resignation of Facilitator. Facilitator may at any time
resign by giving advance written notice of such intention to
Exchangor and any party to which notice has been given that an
assignment of a Sale Agreement and/or Purchase Agreement has been
made, provided, however, that such resignation shall not be
effective unless and until Exchangor has selected a successor
Facilitator. Upon receipt of such notice, Exchangor shall promptly
select a successor Facilitator who shall be a qualified
intermediary, as defined by Treasury Regulation Section 1.1031(k)-1
(g)(4). The initial Facilitator shall then transfer and assign to
the successor Facilitator all of the Net Exchange Property Proceeds
and all of its right, title and interest in and to the Sale
Agreement and the Purchase Agreement.
12. Notices. Any notices or other communications or deliveries
which may be required or desired to be given under the terms of
this Agreement shall be in writing and shall be deemed to have been
duly given if personally delivered, if delivered via facsimile to
the respective party at the facsimile number set forth below, if
sent by overnight courier (e.g., Federal Express), or if mailed by
United States certified mail, return receipt requested, postage
prepaid, addressed to the respective party at the addresses set
forth below:
If to Exchangor:
Decade Companies Income Properties, a Limited Partnership
250 Patrick Boulevard
Suite 140
Brookfield, WI 53045
Attn: Mr. Jeffrey Keierleber
With a Copy to Exchangor's attorney:
Mary Neese Fertl, Esq.
Quarles & Brady LLP
Suite 2550
411 East Wisconsin Avenue
Milwaukee WI 53202-4497
FAX: (414) 271-3552
If to Facilitator:
Mr. John Hoffman
Associated Bank Milwaukee
401 E. Kilbourn Avenue
Milwaukee, WI 53202
FAX: (414) 283-2336
Any notice so given by mail shall be deemed to have been
duly delivered two (2) days after the same is deposited in the
United States mail in the manner specified above. Any notice so
given by overnight courier shall be deemed to have been duly
delivered on the first day following the date the same is delivered
to the overnight courier. Any notice so given by any manner other
than U.S. certified mail or by overnight courier shall be deemed to
have been duly delivered upon actual receipt of the same by the
party to whom the same is to be delivered. Any party may change
the address to which notices are to be sent to such party by
written notice to the other parties specifying such change of
address.
IN WITNESS WHEREOF, the parties have executed this
Agreement as of the date set forth above.
EXCHANGOR:
DECADE COMPANIES INCOME PROPERTIES, A LIMITED PARTNERSHIP
By: Decade Companies, General Partner
By: Decade 80, Inc., General Partner
By:/s/ Jeffrey Keierleber
By:/s/ Jeffrey Keierleber
Jeffrey Keierleber, General Partner
QUALIFIED INTERMEDIARY:
ASSOCIATED BANK MILWAUKEE
By:/s/ John Hoffman
John Hoffman, Vice President
EXHIBIT A
DESCRIPTION OF EXCHANGE PROPERTY
PARCEL A:
Lot One (1) of Certified Survey Map No. 2982 recorded in
the Dane County Register of Deeds Office in Volume 11 of Certified
Survey Maps, page 399, as Document No. 1593404, in the City of
Madison, Dane County, Wisconsin.
PARCEL B:
Lot Two (2) of Certified Survey Map No. 1872 recorded in
the Dane County Register of Deeds Office in Volume 7 of Certified
Survey Maps, page 312, as Document No. 1450832, in the City of
Madison, Dane County, Wisconsin.
PARCEL C:
Lots Two (2) and Three (3) of Certified Survey Map No.
2982 recorded in the Dane County Register of Deeds Office in Volume
11 of Certified Survey Maps, page 399, as Document No. 1593404, in
the City of Madison, Dane County, Wisconsin.
EXHIBIT B
January __, 2002
T.P. Meadows Apartments, LLC
c/o Comprehensive Management Services, Inc.
1996 S. Kirk Road Suite 320
Geneva, IL 60134
Re: Notice of Assignment of Purchase and Sale Agreement relating
to real estate in the City of Madison, Wisconsin legally described
on attached Exhibit A
Gentlemen:
The purpose of this letter is to give you notice that the interest
of Decade Companies Income Properties, a Limited Partnership in
that certain Purchase and Sale Agreement consisting of an Option to
Purchase dated September 10, 2001, which option was exercised by
Notice dated September 28, 2001 and assigned by Buyer to T.P.
Meadows Apartments, LLC, with respect to that certain real property
referenced above, a copy of which agreement is attached hereto as
Exhibit A (the "Sale Agreement"), has been assigned to ASSOCIATED
BANK MILWAUKEE and ASSOCIATED BANK MILWAUKEE has agreed to
facilitate a like-kind exchange with respect to such real property
under Section 1031 of the Internal Revenue Code for the benefit of
Decade Companies Income Properties, a Limited Partnership, provided
that Facilitator incurs no liability by virtue of such assignment
other than the obligation to receive and deliver the Net Exchange
Property Proceeds and documents in accordance with the Exchange
Agreement and that all representations, warranties and obligations
of the Exchangor under the Sale Agreement remain the sole
obligation of the Exchangor.
Sincerely,
ASSOCIATED BANK MILWAUKEE
By:/s/ John Hoffman
John Hoffman, Vice President
EXCHANGOR:
DECADE COMPANIES INCOME PROPERTIES, A LIMITED PARTNERSHIP
By: Decade Companies, General Partner
By: Decade 80, Inc., General Partner
By:/s/ Jeffrey Keierleber
By:/s/ Jeffrey Keierleber
Jeffrey Keierleber, General Partner
The foregoing is acknowledged and agreed to this _____ day of
January, 2002.
T.P. MEADOWS APARTMENTS, LLC
By:
EXHIBIT C
January ___, 2002
Decade Companies Income Properties, a Limited Partnership
250 Patrick Boulevard
Suite 140
Brookfield, WI 53045
Attn: Mr. Jeffrey Keierleber
Re: Letter of Direction for Direct Transfer of real estate in the
City of Madison, Wisconsin legally described on attached Exhibit A
Dear Mr. Keierleber:
It is understood that on January __, 2002, Decade Companies Income
Properties, a Limited Partnership and the undersigned entered into
an Exchange Agreement, wherein the undersigned agreed to facilitate
the exchange of certain real property referenced above, more
particularly described on Exhibit A to the Exchange Agreement
(hereinafter the "Exchange Property") for one or more replacement
properties to be identified by Decade Companies Income Properties,
a Limited Partnership, and wherein Decade Companies Income
Properties, a Limited Partnership assigned to the undersigned its
interest in a Purchase and Sale Agreement, consisting of an Option
to Purchase executed by Decade Companies Income Properties, a
Limited Partnership, as Seller, and Comprehensive Management
Services, Inc., as Buyer, relating to the Exchange Property, which
option was exercised by Notice dated September 28, 2001, and
assigned by Buyer to T.P. Meadows Apartments, LLC.
In order to reduce closing expenses, and pursuant to the Exchange
Agreement, this letter hereby directs you to transfer the Exchange
Property to the buyer specified in the Purchase and Sale Agreement,
by executing a Warranty Deed and other customary closing documents
in the name of such buyer, pursuant to the terms of said Purchase
and Sale Agreement, and by delivering the executed Warranty Deed
and other customary closing documents to Associated Bank Milwaukee,
which shall deliver them to the buyer.
ASSOCIATED BANK MILWAUKEE
By:/s/ John Hoffman
John Hoffman, Vice President
EXHIBIT D
___________________, 2002
Mr. John Hoffman
Associated Bank Milwaukee
401 E. Kilbourn Avenue
Milwaukee, WI 53202
Re: Notice of Identification of Replacement Property
Dear Mr. Hoffman:
As you are aware, Decade Companies Income Properties, a Limited
Partnership entered into an Exchange Agreement with you on January
__, 2002. Such Exchange Agreement required Decade Companies Income
Properties, a Limited Partnership to designate one or more
Replacement Properties prior to forty-five (45) days after the
closing of the sale of the Exchange Property as described in the
Exchange Agreement. The closing of the sale of the Exchange
Property occurred on January 31, 2002.
The purpose of this letter is to identify a Replacement Property
pursuant to Paragraph 7 of the Exchange Agreement. The Replacement
Property is certain real property commonly known as: and more
particularly described on Exhibit A attached hereto.
DECADE COMPANIES INCOME PROPERTIES, A LIMITED PARTNERSHIP
By: Decade Companies, General Partner
By: Decade 80, Inc., General Partner
By:___________________________
By:_________________________________
Jeffrey Keierleber, General Partner
EXHIBIT A
[Insert Legal Description]
EXHIBIT E
ASSIGNMENT OF PURCHASE
AGREEMENT TO FACILITATOR
WHEREAS, DECADE COMPANIES INCOME PROPERTIES, A LIMITED PARTNERSHIP
(hereinafter "Exchangor") and ASSOCIATED BANK MILWAUKEE
(hereinafter "Facilitator") entered into an Exchange Agreement
dated January __, 2002, wherein Facilitator agreed to facilitate
the exchange of an Exchange Property (as defined in the Exchange
Agreement) for one or more Replacement Properties (as defined in
the Exchange Agreement) and to qualify the exchange as a like-kind
exchange under Section 1031 of the Internal Revenue Code;
WHEREAS, a sale of the Exchange Property was consummated by
Facilitator;
WHEREAS, the Net Exchange Property Proceeds (as defined in the
Exchange Agreement) from the sale of the Exchange Property are
being held by Facilitator for the purchase of the Replacement
Property;
WHEREAS, Exchangor identified a Replacement Property within the
Identification Period described in the Exchange Agreement, and
Exchangor and [Seller] have entered into a certain
agreement for the purchase by Exchangor of the Replacement Property
(the "Purchase Agreement");
WHEREAS, in order to comply with the regulations promulgated under
Section 1031 of the Internal Revenue Code, Exchangor desires to
assign the Purchase Agreement to Facilitator; and
WHEREAS, capitalized terms used herein and not otherwise defined
shall have the meaning set forth in the Exchange Agreement;
NOW, THEREFORE, for good and valuable consideration, the receipt
and sufficiency of which is hereby acknowledged, and pursuant to
the Exchange Agreement, Exchangor hereby assigns to Facilitator,
and Facilitator hereby accepts from Exchangor, all of Exchangor's
right, title and interest in and to the Purchase Agreement;
provided that Facilitator incurs no liability by virtue of such
assignment other than the obligation to receive and deliver the Net
Exchange Property Proceeds and documents in accordance with the
Exchange Agreement and that all representations, warranties and
obligations of the Exchangor under the Purchase Agreement remain
the sole obligation of the Exchangor, and further provided that the
seller under the Purchase Agreement acknowledges in writing this
limitation on Facilitator's liability thereunder. A copy of said
Purchase Agreement is attached hereto as Exhibit A.
IN WITNESS WHEREOF, the undersigned have executed this instrument
this _____ day of _________________, 2002.
DECADE COMPANIES INCOME PROPERTIES, A LIMITED PARTNERSHIP
By: Decade Companies, General Partner
By: Decade 80, Inc., General Partner
By:__________________________
By:________________________________
Jeffrey Keierleber, General Partner
ASSOCIATED BANK MILWAUKEE
By:
Print Name:
Title:
EXHIBIT F
, 2002
[Seller]
Re: Notice of Assignment and Letter of Direction for Direct
Transfer of Replacement Property
Dear [Seller] :
The purpose of this letter is to give you notice that the interest
of Decade Companies Income Properties, a Limited Partnership in
that certain Purchase and Sale Agreement executed by
______________________________ and _________________________, dated
________________ (the "Agreement") with respect to the purchase by
Decade Companies Income Properties, a Limited Partnership of
certain real property more particularly described on Exhibit A
attached hereto, a copy of which Agreement is attached hereto as
Exhibit B, has been assigned to ASSOCIATED BANK MILWAUKEE, and
ASSOCIATED BANK MILWAUKEE has agreed to facilitate a like-kind
exchange with respect to such property under Section 1031 of the
Internal Revenue Code for the benefit of Decade Companies Income
Properties, a Limited Partnership; provided that Facilitator incurs
no liability by virtue of such assignment other than the obligation
to receive and deliver the Net Exchange Property Proceeds and
documents in accordance with the Exchange Agreement and that all
representations, warranties and obligations of the Exchangor under
the Agreement remain the sole obligation of the Exchangor and
further provided that the seller under the Agreement acknowledges
in writing this limitation on Facilitator's liability thereunder.
Notwithstanding such assignment, in order to reduce closing
expenses, this letter hereby directs you to transfer the above-
referenced property by executing a Warranty Deed and other
customary closing documents in the name of Decade Companies Income
Properties, a Limited Partnership pursuant to the terms of the
Agreement, and by delivering the executed Warranty Deed and other
customary closing documents to ASSOCIATED BANK MILWAUKEE which
shall deliver them to Decade Companies Income Properties, a Limited
Partnership.
ASSOCIATED BANK MILWAUKEE
By:
Print Name:
Title:
DECADE COMPANIES INCOME PROPERTIES, A LIMITED PARTNERSHIP
By: Decade Companies, General Partner
By: Decade 80, Inc., General Partner
By:
By:
Jeffrey Keierleber, General Partner
The foregoing is acknowledged and agreed to this ______ day of
_______________, 2002.
[Seller]
Print Name:
Title:
EXHIBIT A
[Insert Legal Description]
EXHIBIT G
COPY OF PURCHASE AND SALE AGREEMENT
EXHIBIT 10.34
January __, 2002
T.P. Meadows Apartments, LLC
c/o Comprehensive Management Services, Inc.
1996 S. Kirk Road Suite 320
Geneva, IL 60134
Re: Notice of Assignment of Purchase and Sale Agreement relating
to real estate in the City of Madison, Wisconsin legally described
on attached Exhibit A
Gentlemen:
The purpose of this letter is to give you notice that the interest
of Decade Companies Income Properties, a Limited Partnership in
that certain Purchase and Sale Agreement consisting of an Option to
Purchase dated September 10, 2001, which option was exercised by
Notice dated September 28, 2001 and assigned by Buyer to T.P.
Meadows Apartments, LLC, with respect to that certain real property
referenced above, a copy of which agreement is attached hereto as
Exhibit A (the "Sale Agreement"), has been assigned to ASSOCIATED
BANK MILWAUKEE and ASSOCIATED BANK MILWAUKEE has agreed to
facilitate a like-kind exchange with respect to such real property
under Section 1031 of the Internal Revenue Code for the benefit of
Decade Companies Income Properties, a Limited Partnership, provided
that Facilitator incurs no liability by virtue of such assignment
other than the obligation to receive and deliver the Net Exchange
Property Proceeds and documents in accordance with the Exchange
Agreement and that all representations, warranties and obligations
of the Exchangor under the Sale Agreement remain the sole
obligation of the Exchangor.
Sincerely,
ASSOCIATED BANK MILWAUKEE
By:
John Hoffman, Vice President
EXCHANGOR:
DECADE COMPANIES INCOME PROPERTIES, A LIMITED PARTNERSHIP
By: Decade Companies, General Partner
By: Decade 80, Inc., General Partner
By:
By:
Jeffrey Keierleber, General Partner
The foregoing is acknowledged and agreed to this 30th day of
January, 2002.
BUYER:
T.P. MEADOWS APARTMENTS, LLC
By: Taylor Place, LLC, its Managing Member
By: Kollinger Management Corporation, its Manager
By:/s/ Hebert H. Kollinger
Hebert H. Kollinger, its President
EXHIBIT A
PARCEL A:
Lot One (1) of Certified Survey Map No. 2982 recorded in the Dane
County Register of Deeds Office in Volume 11 of Certified Survey
Maps, page 399, as Document No. 1593404, in the City of Madison,
Dane County, Wisconsin.
PARCEL B:
Lot Two (2) of Certified Survey Map No. 1872 recorded in the Dane
County Register of Deeds Office in Volume 7 of Certified Survey
Maps, page 312, as Document No. 1450832, in the City of Madison,
Dane County, Wisconsin.
PARCEL C:
Lots Two (2) and Three (3) of Certified Survey Map No. 2982
recorded in the Dane County Register of Deeds Office in Volume 11
of Certified Survey Maps, page 399, as Document No. 1593404, in the
City of Madison, Dane County, Wisconsin.
EXHIBIT 10.35
January 29, 2002
Decade Companies Income Properties, a Limited Partnership
250 Patrick Boulevard
Suite 140
Brookfield, WI 53045
Attn: Mr. Jeffrey Keierleber
Re: Letter of Direction for Direct Transfer of real estate in the
City of Madison, Wisconsin legally described on attached Exhibit A
Dear Mr. Keierleber:
It is understood that on January 28, 2002, Decade Companies Income
Properties, a Limited Partnership and the undersigned entered into
an Exchange Agreement, wherein the undersigned agreed to facilitate
the exchange of certain real property referenced above, more
particularly described on Exhibit A to the Exchange Agreement
(hereinafter the "Exchange Property") for one or more replacement
properties to be identified by Decade Companies Income Properties,
a Limited Partnership, and wherein Decade Companies Income
Properties, a Limited Partnership assigned to the undersigned its
interest in a Purchase and Sale Agreement, consisting of an Option
to Purchase executed by Decade Companies Income Properties, a
Limited Partnership, as Seller, and Comprehensive Management
Services, Inc., as Buyer, relating to the Exchange Property, which
option was exercised by Notice dated September 28, 2001, and
assigned by Buyer to T.P. Meadows Apartments, LLC.
In order to reduce closing expenses, and pursuant to the Exchange
Agreement, this letter hereby directs you to transfer the Exchange
Property to the buyer specified in the Purchase and Sale Agreement,
by executing a Warranty Deed and other customary closing documents
in the name of such buyer, pursuant to the terms of said Purchase
and Sale Agreement, and by delivering the executed Warranty Deed
and other customary closing documents to Associated Bank Milwaukee,
which shall deliver them to the buyer.
ASSOCIATED BANK MILWAUKEE
By:
John Hoffman, Vice President
EXHIBIT A
PARCEL A:
Lot One (1) of Certified Survey Map No. 2982 recorded in the Dane
County Register of Deeds Office in Volume 11 of Certified Survey
Maps, page 399, as Document No. 1593404, in the City of Madison,
Dane County, Wisconsin.
PARCEL B:
Lot Two (2) of Certified Survey Map No. 1872 recorded in the Dane
County Register of Deeds Office in Volume 7 of Certified Survey
Maps, page 312, as Document No. 1450832, in the City of Madison,
Dane County, Wisconsin.
PARCEL C:
Lots Two (2) and Three (3) of Certified Survey Map No. 2982
recorded in the Dane County Register of Deeds Office in Volume 11
of Certified Survey Maps, page 399, as Document No. 1593404, in the
City of Madison, Dane County, Wisconsin.
EXHIBIT 10.36
BILL OF SALE
DECADE COMPANIES INCOME PROPERTIES, A LIMITED PARTNERSHIP, a
Limited Partnership ("Seller") hereby conveys to T.P. MEADOWS
APARTMENTS, LLC ("Buyer") for good and valuable consideration all
of Seller's interest in the personal property described on attached
Exhibit A (the "Personal Property") as such Personal Property is
owned by the Seller and located at that certain property known as
Meadows II, Phases II, III & IV, 225 Thompson Drive, Madison,
Wisconsin.
Seller warrants and represents that Seller owns the Personal
Property free and clear of liens and encumbrances and that Seller
has good right to sell same. This warranty applies to title only
and no warranty is made as to physical condition or fitness for any
particular purpose as all Personal Property is conveyed "AS-IS,
WHERE-IS, AND WITH ALL FAULTS."
This Bill of Sale may be executed in counterparts.
Dated this 31st day of January, 2002.
SELLER:
DECADE COMPANIES INCOME PROPERTIES, A LIMITED PARTNERSHIP
By: Decade Companies, General Partner
By: Decade 80, Inc., General Partner
By:___________________________
By:_________________________________
Jeffrey Keierleber, General Partner
BUYER:
T.P. MEADOWS APARTMENTS, LLC
By: Taylor Place, LLC, its Managing Member
By: Kollinger Management Corporation, its Manager
By:
Hebert H. Kollinger, its President
EXHIBIT A
LIST OF PERSONAL PROPERTY
MEADOWS II
Model
1 sofa
1 love seat
1 area rug
1 glass coffee table
1 tv stand
1 fica plant
1 wire sack chair/hassock
1 bamboo floor lamp
1 bamboo table lamp
5 pictures
1 sofa table
1 small radio
1 dining room table with 4 metal chairs
miscellaneous kitchen items (decorative)
miscellaneous bathroom items including decorative towels
1 metal bed
1 metal bedside table
2 high boys
assorted bedding
1 platform bed
1 dresser
1 chest
2 bed tables
2 lamps
miscellaneous closet items
assorted bedding
Appliances
315 stoves (electric) (no stove in office)
316 refrigerators
316 a/c wall
315 hood fans (no hood fan in office)
310 dishwashers (no dishwashers in handicap apartments)
Columbia Par Cart (golf cart)
MEADOWS II
Office
1 oak desk (L-shaped)
2 mahogany desks (L-shaped)
1 metal desk (L-shaped)
5 desk chairs
1 round table
6 file cabinets
1 lateral file cabinet
11 armed guest chairs
1 computer table
2 sofa tables
1 artist rendering of site
1 clock
4 desk lamps
2 larger chairs
2 wicker chairs
1 wicker end table
1 mahogany end table
1 small file
1 copier
1 fax machine
1 computer
1 printer
1 scanner
1 TV
1 phone system
1 microwave
1 coffee maker
2 vacuums
1 stool
2 typewriters (1 broken)
MEADOWS II
Maintenance/Grounds
1 4 gallon air compressor
1 50" hose
1 Paslode air nailer
1 Echo hedge trimmer
1 Echo pole saw and trimmer
1 Sthil backpack blower
1 Van Guard power washer
1 Ilco key machine
1 appliance dolly
1 Echo weed eater
1 Simplex time clock
1 Toro wheel horse tractor
1 blower for wheel horse
1 8-horse 924 Ariens snow blower
1 10-horse Ariens snow blower
1 salt spreader
assorted shovels, broom and rakes
1 wind screen for tennis court
1 volleyball net
1 tennis net
1 pager
1 Oreck vacuum cleaner
1 small Oreck hand vacuum cleaner
Pool
4 picnic tables
16 pool chairs
1 table
1 umbrella for table
EXHIBIT 10.37
ASSIGNMENT OF LEASES AND SECURITY DEPOSITS
THIS ASSIGNMENT OF LEASES AND SECURITY DEPOSITS, made as of this
31ST day of January, 2002 by and between DECADE COMPANIES INCOME
PROPERTIES, A LIMITED PARTNERSHIP (hereinafter "Assignor") and T.P.
MEADOWS APARTMENTS, LLC (hereinafter "Assignee").
WITNESSETH:
WHEREAS, Assignor is the owner of certain real property legally
described on attached Exhibit A known as Meadows II, Phases II, III
& IV, 225 Thompson Drive, Madison, Wisconsin (hereinafter the
"Property");
WHEREAS, the Property is subject to certain leases set forth on
attached Exhibit B (the "Leases") with tenants (individually the
"Tenant" and collectively the "Tenants"); and
WHEREAS, the Assignor is holding security deposits paid by the
Tenants (hereinafter the "Security Deposits") in the amount of
$54,338.50 as set forth on Exhibit B attached hereto.
NOW, THEREFORE, FOR GOOD AND VALUABLE CONSIDERATION, the receipt
and sufficiency of which is hereby acknowledged, the Assignor and
the Assignee hereby agree as follows:
1. Assignment. The Assignor hereby assigns and transfers to the
Assignee all of its right, title and interest in the Leases and
Security Deposits, and delivers to the Assignee all of the original
Leases and Security Deposits.
2. Acceptance and Assumption. The Assignee accepts the assignment
made hereby, acknowledges receipt of the Security Deposits and
assumes and agrees to perform, as a direct obligation to the
Tenants, all duties and obligations arising on and after the date
hereof, required to be performed by the Assignor under the Leases
to the same extent as if the Assignee had been an original party
thereto and Assignor shall have no liability with respect to duties
and obligations arising on and after the date hereof. The Assignee
shall indemnify and hold the Assignor harmless with respect to
claims asserted by Tenants on and after the date hereof. The
Assignor shall indemnify and hold the Assignee harmless with
respect to claims asserted by Tenants prior to the date hereof.
3. Successors and Assigns. This Assignment of Leases and
Security Deposits shall be binding upon and inure to the benefit of
the parties and their respective successors and assigns.
4. Counterparts. This Assignment of Leases and Security Deposits
may be executed in counterparts.
IN WITNESS WHEREOF, the parties have executed this Assignment on
the date first above written.
ASSIGNOR:
DECADE COMPANIES INCOME PROPERTIES, A LIMITED PARTNERSHIP
By: Decade Companies, General Partner
By: Decade 80, Inc., General Partner
By:/s/ Jeffrey Keierleber
By:/s/ Jeffrey Keierleber
Jeffrey Keierleber, General Partner
ASSIGNEE:
T.P. MEADOWS APARTMENTS, LLC
By: Taylor Place, LLC, its Managing Member
By: Kollinger Management Corporation, its Manager
By:/s/ Hebert H. Kollinger
Hebert H. Kollinger, its President
EXHIBIT A
LEGAL DESCRIPTION
PARCEL A:
Lot One (1) of Certified Survey Map No. 2982 recorded in the Dane
County Register of Deeds Office in Volume 11 of Certified Survey
Maps, page 399, as Document No. 1593404, in the City of Madison,
Dane County, Wisconsin.
PARCEL B:
Lot Two (2) of Certified Survey Map No. 1872 recorded in the Dane
County Register of Deeds Office in Volume 7 of Certified Survey
Maps, page 312, as Document No. 1450832, in the City of Madison,
Dane County, Wisconsin.
PARCEL C:
Lots Two (2) and Three (3) of Certified Survey Map No. 2982
recorded in the Dane County Register of Deeds Office in Volume 11
of Certified Survey Maps, page 399, as Document No. 1593404, in the
City of Madison, Dane County, Wisconsin.
EXHIBIT B
TENANT LIST AND SECURITY DEPOSIT LIST
EXHIBIT 10.38
ASSIGNMENT OF CONTRACTS
THIS ASSIGNMENT OF CONTRACTS, made as of this 31st day of January,
2002 by and between DECADE COMPANIES INCOME PROPERTIES, A LIMITED
PARTNERSHIP (hereinafter "Assignor") and T.P. MEADOWS APARTMENTS,
LLC (hereinafter "Assignee").
WITNESSETH:
WHEREAS, Assignor is the owner of certain real property legally
described on attached Exhibit A known as Meadows II, Phases II, III
& IV, 225 Thompson Drive, Madison, Wisconsin (hereinafter the
"Property"); and
WHEREAS, the Property is subject to certain Contracts (the
"Contracts"), which Contracts are set forth on attached Exhibit B.
NOW, THEREFORE, FOR GOOD AND VALUABLE CONSIDERATION, the receipt
and sufficiency of which is hereby acknowledged, the Assignor and
the Assignee hereby agree as follows:
1. Assignment. The Assignor hereby assigns and transfers to the
Assignee all of its right, title and interest in the Contracts and
the Assignor acknowledges receipt of copies thereof.
2. Acceptance and Assumption. The Assignee accepts the
assignment made hereby, and assumes and agrees to perform, as a
direct obligation all obligations on and after the date hereof
required to be performed by the Assignor under the Contracts, to
the same extent as if the Assignee had been an original party
thereto and Assignor shall have no liability with respect to duties
and obligations arising on and after the date hereof. The Assignee
shall indemnify and hold the Assignor harmless with respect to all
duties and obligations of the Assignee under the Contracts arising
on and after the date hereof. The Assignor shall indemnify and
hold the Assignee harmless with respect to all duties and
obligations of the Assignor under the Contracts arising prior to
the date hereof.
3. Successors and Assigns. This Assignment of Contracts shall be
binding upon and inure to the benefit of the parties and their
respective successors and assigns.
4. Counterparts. This Assignment of Contracts may be executed in
counterparts.
IN WITNESS WHEREOF, the parties have executed this Assignment on
the date first above written.
ASSIGNOR:
DECADE COMPANIES INCOME PROPERTIES, A LIMITED PARTNERSHIP
By: Decade Companies, General Partner
By: Decade 80, Inc., General Partner
By:/s/ Jeffrey Keierleber
By:/s/ Jeffrey Keierleber
Jeffrey Keierleber, General Partner
ASSIGNEE:
T.P. MEADOWS APARTMENTS, LLC
By: Taylor Place, LLC, its Managing Member
By: Kollinger Management Corporation, its Manager
By:/s/Hebert H. Kollinger
Hebert H. Kollinger, its President
EXHIBIT A
LEGAL DESCRIPTION
PARCEL A:
Lot One (1) of Certified Survey Map No. 2982 recorded in the Dane
County Register of Deeds Office in Volume 11 of Certified Survey
Maps, page 399, as Document No. 1593404, in the City of Madison,
Dane County, Wisconsin.
PARCEL B:
Lot Two (2) of Certified Survey Map No. 1872 recorded in the Dane
County Register of Deeds Office in Volume 7 of Certified Survey
Maps, page 312, as Document No. 1450832, in the City of Madison,
Dane County, Wisconsin.
PARCEL C:
Lots Two (2) and Three (3) of Certified Survey Map No. 2982
recorded in the Dane County Register of Deeds Office in Volume 11
of Certified Survey Maps, page 399, as Document No. 1593404, in the
City of Madison, Dane County, Wisconsin.
EXHIBIT B
LIST OF CONTRACTS
SERVICE CONTRACTS
THE MEADOWS II APARTMENTS
MADISON, WISCONSIN
JANUARY 17, 2002
SERVICE CONTRACTOR
Lawn Service Eric's Lawn Maintenance
Weed and Feed Tru-Green Chemlawn
Snow Removal Midthun Company, Inc.
Pest Control Wil-Kil Pest Control
Laundry Commercial Laundry Corp.
Waste Removal Green Valley Disposal
Water Softner Rental Fox Water (Do not have a copy
of contract to send)
Advertising Start Renting
Advertising Ameritech (Directory Advertising)
Advertising Madison Newspapers
Advertising The Apartment Showcase
Security JBM Patrol & Protection
Cleaning Service Statewide Building Services
Credit Checks CSC Credit Services