AGREEMENT OF SALE
THIS AGREEMENT OF SALE (this "Agreement"), is entered into as of the 28th
day of June 1996, by and between RREEF AMERICA L.L.C., a Delaware limited
liability company ("Purchaser"), and 3957 PIERCE LIMITED PARTNERSHIP, an
Illinois limited partnership ("Seller").
W I T N E S S E T H:
1. PURCHASE AND SALE. Purchaser agrees to purchase and Seller agrees to sell
at the price of Twelve Million Eighty-Eight Thousand Two Hundred Thirty-Five
And No/100 Dollars ($12,088,235.00) (the "Purchase Price"), that certain
property commonly known as Sand Pebble Village II Apartments, Riverside,
California, legally described on Exhibit A attached hereto (the "Property").
Included in the Purchase Price is all of the personal property set forth on
Exhibit B attached hereto (the "Personal Property"), all of the buildings
located on the Property, all right, title and interest of Seller, if any, in
and to (a) all open or proposed highways, streets, roads, avenues, alleys,
easements, strips, gores and rights-of-way in, on, across, in front of,
contiguous to, abutting or adjoining the Property, (b) the name "Sand Pebble
Village II Apartments", (c) all plans and specifications, (c) all transferable
licenses, permits, guaranties and warranties relating to the zoning, land use,
ownership, operation, occupancy, construction or maintenance of the Premises
and buildings thereon, (d) all fixtures, equipment and supplies owned by Seller
located on the Property, and (e) all Leases (hereinafter defined), rights and
privileges of Seller pertaining to the Property.
2. PURCHASE PRICE. The Purchase Price shall be paid by Purchaser as follows:
2.1. No later than one business day following the execution of this
Agreement by both parties, the sum of One Hundred Fifty Thousand and No/100
Dollars ($150,000.00) (the "Earnest Money") to be held in escrow by and in
accordance with the provisions of the Escrow Agreement ("Escrow Agreement")
attached hereto as Exhibit C; and
2.2. On the "Closing Date" (hereinafter defined), the balance of the
Purchase Price, adjusted in accordance with the prorations, by federally wired
"immediately available" funds, on or before 11:00 a.m Chicago time.
3. TITLE COMMITMENT AND SURVEY.
3.1. Seller has ordered, and will deliver to Purchaser promptly following
Seller's receipt of a title commitment for an owner's standard title insurance
policy issued by an agent for Lawyer's Title Insurance Corporation (hereinafter
referred to as "Title Insurer") for the Property (the "Title Commitment"). The
Title Commitment shall be conclusive evidence of good title as therein shown as
to all matters to be insured by the title policy, subject only to the
exceptions therein stated. On the Closing Date, Title Insurer shall deliver to
Purchaser a standard title policy in conformance with the previously delivered
Title Commitment, subject to Permitted Exceptions and Unpermitted Exceptions
(as said terms are defined below) waived by Purchaser (the "Title Policy").
Seller and Purchaser shall each pay for one-half of the costs of the Title
Commitment and Title Policy and Purchaser shall pay for the cost of any
endorsements (other than endorsements obtained by Seller in order to insure
over Unpermitted Exceptions) to, or extended coverage on, the Title Policy.
3.2. Seller has ordered, and will deliver to Purchaser promptly following
Seller's receipt of a survey of the Property (the "Survey"). Seller and
Purchaser shall each pay for one-half of the costs of the Survey. The Survey
shall be made in accordance with Purchaser's survey standards furnished to
Seller.
3.3. The obligation of Purchaser to pay various costs set forth in
Paragraphs 3.1 and 3.2 shall survive the termination of this Agreement.
3.4. On or before the later to occur of (a) July 11, 1996; or (b) five (5)
business days following Purchaser's receipt of the Title Commitment, the
Schedule B documents referenced in the Title Commitment, and the Survey (the
"Title/Survey Review Deadline Date"), Purchaser shall advise Seller in writing
if any exceptions to title shown on the Title Commitment are disapproved by
Purchaser or any matters on the Survey are unacceptable to Purchaser. If
Purchaser does not so advise Seller on or before the Title/Survey Review
Deadline Date, all exceptions to title shown on the Title Commitment shall be
deemed Permitted Exceptions and all matters shown on the Survey shall be deemed
acceptable to Purchaser. For purposes of this Agreement, "Permitted
Exceptions" shall mean: (a) general real estate taxes, association assessments,
special assessments, special district taxes and related charges not yet due and
payable; (b) matters shown on the Survey not disapproved by Purchaser in
writing as provided above; (c) matters caused by the actions of Purchaser; and
(d) the title exceptions set forth in the Title Commitment not disapproved in
writing by Purchaser as provided above, to the extent that same affect the
Property. Purchaser agrees to use diligent efforts to cause the Title Insurer
to remove the general printed exceptions contained in the standard title policy
to be issued by Title Insurer, including, without limitation, paying the cost
thereof, and Seller agrees to execute standard Lawyer's Title "ALTA" statements
in the form customarily used in California in order to assist Purchaser in
obtaining extended coverage but shall not be obligated to incur any cost or
liability (other than on account of the ALTA statement) in providing such
assistance. If Purchaser fails to use such diligent efforts, the general
printed exceptions will constitute Permitted Exceptions. All exceptions to
title other than those described above in this Paragraph shall be referred to
as "Unpermitted Exceptions". With respect to Unpermitted Exceptions for liens
and encumbrances of a definite or ascertainable amount securing borrowed money,
mechanics liens or for unpaid real estate taxes and assessments ("Monetary
Unpermitted Exceptions"), the indebtedness giving rise to such Monetary
Unpermitted Exceptions will be paid at the Closing and the lien thereby
released and removed. Seller's obligations under the preceding sentence shall
be limited to Monetary Unpermitted Exceptions arising out of an affirmative
action of Seller (such as execution of a mortgage, entering into a contract for
construction work on the Property or non-payment of real estate taxes). Any
Unpermitted Exceptions to title which are insured over by the Title Insurer and
reasonably approved as such by Purchaser, as provided herein, shall be deemed
Permitted Exceptions. If Seller fails to have any Unpermitted Exceptions
(other than a Monetary Unpermitted Exception) removed or insured over prior to
ten (10) business days following the Title/Survey Review Deadline Date (the
"Seller Response Date"), Purchaser may elect, by written notice to Seller given
within five (5) business days following the Seller Response Date, (i) to accept
title as it then is (in which case such exceptions shall be deemed "Permitted
Exceptions"), or (ii) to terminate this Agreement, in which case this Agreement
shall become null and void without further action of the parties and all
Earnest Money theretofore deposited into the escrow by Purchaser together with
any interest accrued thereon, shall be returned to Purchaser, and neither party
shall have any further liability to the other, except for Purchaser's
obligation to indemnify Seller and restore the Property, as more fully set
forth in Paragraph 7. Purchaser shall have the right to pay Monetary
Unpermitted Exceptions at Closing, if Seller fails to do so, at no liability or
cost to Seller and no adjustment to the Purchase Price.
4. PAYMENT OF CLOSING COSTS.
In addition to the costs set forth in Paragraphs 3.1 and 3.2, Purchaser
and Seller shall each pay for one-half of the costs of the documentary or
transfer stamps to be paid with reference to the "Deed" (hereinafter defined)
and all other stamps, intangible, transfer, documentary, recording, sales tax
and surtax imposed by law with reference to any other sale documents delivered
in connection with the sale of the Property to Purchaser and all other charges
of the Title Insurer in connection with this transaction. Purchaser shall not
be required to incur title charges or escrow fees on account of using Charter
Title Company which exceed those that would normally be charged by the Title
Insurer.
5. CONDITION OF TITLE.
5.1. If, prior to "Closing" (as hereinafter defined), a date-down to the
Title Commitment discloses any new Unpermitted Exception, Seller shall have
thirty (30) days from the date of Purchaser's notification to Seller of such
new Unpermitted Exception (which will be given by Purchaser, if at all, not
later than five (5) business days after Purchaser's receipt of the date-down to
the Title Commitment), at Seller's expense, to (i) bond over with a bonding
company reasonably satisfactory to Purchaser, cure and/or have any Unpermitted
Exceptions which, in the aggregate, do not exceed $25,000.00, removed from the
Title Commitment or to have the Title Insurer commit to insure against loss or
damage that may be occasioned by such Unpermitted Exceptions on the condition
that the form of endorsement shall be reasonably satisfactory to Purchaser, or
(ii) have the right, but not the obligation, to bond over (with a bonding
company reasonably satisfactory to Purchaser), cure and/or have any Unpermitted
Exceptions which, in the aggregate, equal or exceed $25,000.00, removed from
the Title Commitment or to have the Title Insurer commit to insure against loss
or damage that may be occasioned by such Unpermitted Exceptions on the
condition that the form of endorsement shall be reasonably satisfactory to
Purchaser. In such event, the time of Closing shall be delayed, if necessary,
to give effect to said aforementioned time periods. If Seller fails to cure or
have said Unpermitted Exception removed or have the Title Insurer commit to
insure as specified above within said thirty (30) day period or if Seller
elects not to exercise its rights under (ii) in the preceding sentence,
Purchaser may terminate this Agreement upon notice to Seller within five (5)
days after the expiration of said thirty (30) day period. Absent notice from
Purchaser to Seller in accordance with the preceding sentence, Purchaser shall
be deemed to have elected to take title subject to said Unpermitted Exception.
Purchaser may, at Purchaser's sole cost and expense, and without any liability
to Seller, bond over any Unpermitted Exception. If Purchaser terminates this
Agreement in accordance with the terms of this Paragraph 5.1, this Agreement
shall become null and void without further action of the parties and all
Earnest Money theretofore deposited into the escrow by Purchaser together with
any interest accrued thereon, shall be returned to Purchaser, and neither party
shall have any further liability to the other, except for Purchaser's
obligation to indemnify Seller and restore the Property, as more fully set
forth in Paragraph 7.
5.2. Seller agrees to convey fee simple title to the Property to
Purchaser by grant deed (the "Deed") in recordable form subject only to the
Permitted Exceptions and any Unpermitted Exceptions waived by Purchaser.
5.3. Seller agrees that if a special assessment is enacted prior to the
Closing Date, notwithstanding Section 3.4(a), Purchaser shall have the right to
terminate this Agreement by written notice to Seller within five (5) days after
Purchaser has actual notice of such enactment.
6. CONDEMNATION, EMINENT DOMAIN, DAMAGE AND CASUALTY.
6.1. Except as provided in the indemnity provisions contained in
Paragraph 7.1 of this Agreement, Seller shall bear all risk of loss with
respect to the Property up to the earlier of the dates upon which either
possession or title is transferred to Purchaser in accordance with this
Agreement. Notwithstanding the foregoing, in the event of damage to the
Property by fire or other casualty prior to the Closing Date, repair of which
would cost less than or equal to $100,000.00 (as determined by Seller in good
faith) Purchaser shall not have the right to terminate its obligations under
this Agreement by reason thereof, but Seller shall have the right to elect to
either repair and restore the Property to Purchaser's reasonable satisfaction
(in which case the Closing Date shall be extended until completion of such
restoration, which restoring shall be pursued diligently) or to assign and
transfer to Purchaser on the Closing Date all of Seller's right, title and
interest in and to all insurance proceeds paid or payable to Seller on account
of such fire or casualty, and Seller shall pay to Purchaser at the Closing the
amount of Seller's insurance deductible. Seller shall promptly notify
Purchaser in writing of any such fire or other casualty and Seller's
determination of the cost to repair the damage caused thereby. In the event of
damage to the Property by fire or other casualty prior to the Closing Date,
repair of which would cost in excess of $100,000.00 (as determined by Seller in
good faith), then this Agreement may be terminated at the option of Purchaser,
which option shall be exercised, if at all, by Purchaser's written notice
thereof to Seller within five (5) business days after Purchaser receives
written notice of such fire or other casualty and Seller's determination of the
amount of such damages, and upon the exercise of such option by Purchaser this
Agreement shall become null and void, the Earnest Money deposited by Purchaser
shall be returned to Purchaser together with interest thereon, and neither
party shall have any further liability or obligations hereunder. In the event
that Purchaser does not exercise the option set forth in the preceding
sentence, the Closing shall take place on the Closing Date and Seller shall
assign and transfer to Purchaser on the Closing Date all of Seller's right,
title and interest in and to all insurance proceeds paid or payable to Seller
on account of the fire or casualty, and Seller shall pay to Purchaser at the
Closing the amount of Seller's insurance deductible.
6.2. If between the date of this Agreement and the Closing Date, any
condemnation or eminent domain proceedings are initiated or threatened by a
notice to Seller from a governmental authority which might result in the taking
of any part of the Property or the taking or closing of any right of access to
the Property, Seller shall immediately notify Purchaser of such occurrence. In
the event that the taking of any part of the Property shall: (i) materially
impair access to the Property; (ii) cause any material non-compliance with any
applicable law, ordinance, rule or regulation of any federal, state or local
authority or governmental agencies having jurisdiction over the Property or any
portion thereof or cause the property to be a non-conforming use or structure;
(iii) materially and adversely impair the use of the Property as it is
currently being operated, or (iv) result in the loss of a portion of a
building, parking spaces or improvements constituting an amenity (hereinafter
collectively referred to as a "Material Event"), Purchaser may:
6.2.1. terminate this Agreement by written notice to Seller, in
which event the Earnest Money deposited by Purchaser, together with interest
thereon, shall be returned to Purchaser and all rights and obligations of the
parties hereunder with respect to the closing of this transaction will cease;
or
6.2.2. proceed with the Closing, in which event Seller shall assign
to Purchaser all of Seller's right, title and interest in and to any award made
in connection with such condemnation or eminent domain proceedings.
6.3. Purchaser shall then notify Seller, within five (5) business days
after Purchaser's receipt of Seller's notice, whether Purchaser elects to
exercise its rights under Paragraph 6.2.1 or Paragraph 6.2.2. Closing shall be
delayed, if necessary, until Purchaser makes such election. If Purchaser fails
to make an election within such five (5) business day period, Purchaser shall
be deemed to have elected to exercise its rights under Paragraph 6.2.2. If
between the date of this Agreement and the Closing Date, any condemnation or
eminent domain proceedings are initiated which do not constitute a Material
Event, Purchaser shall be required to proceed with the Closing, in which event
Seller shall assign to Purchaser all of Seller's right, title and interest in
and to any award made in connection with such condemnation or eminent domain
proceedings.
7. INSPECTION AND AS-IS CONDITION.
7.1. During the period commencing on June 17, 1996 and ending at 5:00
p.m. Chicago time on July 17, 1996 (said period being herein referred to as the
"Inspection Period"), Purchaser and the agents, engineers, employees,
contractors and surveyors retained by Purchaser may enter upon the Property, at
any reasonable time and upon reasonable prior notice to Seller, to inspect the
Property, including a review of leases located at the Property, and to conduct
and prepare such studies, tests and surveys as Purchaser may deem reasonably
necessary and appropriate. In connection with Purchaser's review of the
Property, Seller agrees to deliver to Purchaser copies of the current rent roll
for the Property, the current delinquency report for the Property, the most
recent real estate tax and insurance bills, utility account numbers, service
contracts, and unaudited year end 1995 and year-to-date (through April 30,
1996) operating statements.
All of the foregoing tests, investigations and studies to be conducted
under this Paragraph 7.1 by Purchaser shall be at Purchaser's sole cost and
expense, and if as a result of Purchaser's investigations and inspections of
the Property there is damage or injury to persons or property, Purchaser shall
restore the Property to the condition existing prior to the performance of such
tests or investigations by or on behalf of Purchaser. Purchaser shall not
allow or permit any liens or encumbrances to arise or exist against the
Property or any part thereof as a result of its inspections. Purchaser shall
defend, protect, indemnify and hold Seller and any affiliate, parent of Seller,
and all shareholders, employees, officers and directors of Seller or Seller's
affiliate or parent (hereinafter collectively referred to as "Affiliate of
Seller") harmless from any and all actual loss, liability or damages (including
without limitation, reasonable attorney's fees, court costs and costs of appeal
but excluding consequential damages) suffered or incurred by Seller or
Affiliates of Seller for injury to persons or property caused by Purchaser or
Purchaser's agents entry on the Property in the course of performing any test
or inspection on the Property, including, without limitation, mechanics liens,
provided that Purchaser also agrees to defend and hold Seller harmless from any
injuries, damages or claims of any nature which Purchaser's servants, agents or
employees may have suffered as a result of Purchaser's inspection of the
Property. Purchaser shall undertake its obligation to defend set forth in the
preceding sentence using attorneys selected by Seller, in Seller's sole
discretion.
Prior to commencing any such tests, studies and investigations, Purchaser
shall furnish to Seller a certificate of insurance evidencing not less than
$1,000,000 of comprehensive general public liability insurance insuring the
person, firm or entity performing such tests, studies and investigations and
listing Seller and Purchaser as additional insureds thereunder.
If Purchaser is dissatisfied with the results of the tests, studies or
investigations performed or information received pursuant to this Paragraph
7.1, Purchaser shall have the right to terminate this Agreement by giving
written notice of such termination to Seller at any time prior to the
expiration of the Inspection Period. If written notice is not received by
Seller pursuant to this Paragraph 7.1 prior to the expiration of the Inspection
Period, then the right of Purchaser to terminate this Agreement pursuant to
this Paragraph 7.1 shall be waived. If Purchaser terminates this Agreement by
written notice to Seller prior to the expiration of the Inspection Period: (i)
Purchaser shall promptly deliver to Seller copies of all studies, reports and
other investigations obtained by Purchaser in connection with its due diligence
during the Inspection Period; and (ii) the Earnest Money deposited by Purchaser
shall be immediately paid to Purchaser, together with any interest earned
thereon, and neither Purchaser nor Seller shall have any right, obligation or
liability under this Agreement, except for Purchaser's obligation to indemnify
Seller and restore the Property, as more fully set forth in this Paragraph 7.1.
Notwithstanding anything contained herein to the contrary, the terms of this
Paragraph 7.1, shall survive the Closing and the delivery of the Deed and
termination of this Agreement.
7.2. Except with respect to the representations and warranties contained
herein, Purchaser acknowledges and agrees (a) that it will be purchasing the
Property and the Personal Property based solely upon its inspections and
investigations of the Property and the Personal Property, and (b) that
Purchaser will be purchasing the Property and the Personal Property "AS IS" and
"WITH ALL FAULTS", based upon the condition of the Property and the Personal
Property as of the date of this Agreement, wear and tear and loss by fire or
other casualty or condemnation excepted. Without limiting the foregoing,
Purchaser acknowledges that, except as may otherwise be specifically set forth
elsewhere in this Agreement, neither Seller nor its consultants, brokers or
agents have made any representations or warranties of any kind upon which
Purchaser is relying as to any matters concerning the Property or the Personal
Property, including, but not limited to, the condition of the land or any
improvements comprising the Property, the existence or non-existence of
"Hazardous Materials" (as hereinafter defined), economic projections or market
studies concerning the Property, any development rights, taxes, bonds,
covenants, conditions and restrictions affecting the Property, water or water
rights, topography, drainage, soil, subsoil of the Property, the utilities
serving the Property or any zoning or building laws, rules or regulations or
"Environmental Laws" (hereinafter defined) affecting the Property. Seller
makes no representation or warranty that the Property complies with Title III
of the Americans with Disabilities Act or any fire code or building code.
Except with respect to a breach by Seller of any representation or warranty
expressly contained herein relating to Environmental Laws or Hazardous
Materials, Purchaser hereby releases Seller and the Affiliates of Seller from
any and all liability in connection with any claims which Purchaser may have
against Seller or the Affiliates of Seller, and Purchaser hereby agrees not to
assert any claims for contribution, cost recovery or otherwise, against Seller
or the Affiliates of Seller, relating directly or indirectly to the existence
of asbestos or Hazardous Materials on, or environmental conditions of, the
Property, whether known or unknown. As used herein, "Environmental Laws" means
all federal, state and local statutes, codes, regulations, rules, ordinances,
orders, standards, permits, licenses, policies and requirements (including
consent decrees, judicial decisions and administrative orders) relating to the
protection, preservation, remediation or conservation of the environment or
worker health or safety, all as amended or reauthorized, or as hereafter
amended or reauthorized, including without limitation, the Comprehensive
Environmental Response, Compensation and Liability Act ("CERCLA"), 42 U.S.C.
Section 9601 et seq., the Resource Conservation and Recovery Act of 1976
("RCRA"), 42 U.S.C. Section 6901 et seq., the Emergency Planning and Community
Right-to-Know Act ("Right-to-Know Act"), 42 U.S.C. Section 11001 et seq., the
Clean Air Act ("CAA"), 42 U.S.C. Section 7401 et seq., the Federal Water
Pollution Control Act ("Clean Water Act"), 33 U.S.C. Section 1251 et seq., the
Toxic Substances Control Act ("TSCA"), 15 U.S.C. Section 2601 et seq., the Safe
Drinking Water Act ("Safe Drinking Water Act"), 42 U.S.C. Section 300f et seq.,
the Atomic Energy Act ("AEA"), 42 U.S.C. Section 2011 et seq., the Occupational
Safety and Health Act ("OSHA"), 29 U.S.C. Section 651 et seq., and the
Hazardous Materials Transportation Act (the "Transportation Act"), 49 U.S.C.
Section 1802 et seq. As used herein, "Hazardous Materials" means:
(1) "hazardous substances," as defined by CERCLA; (2) "hazardous wastes," as
defined by RCRA; (3) any radioactive material including, without limitation,
any source, special nuclear or by-product material, as defined by AEA; (4)
asbestos in any form or condition; (5) polychlorinated biphenyls; (6)
petroleum, crude oil or any fraction or derivative of petroleum or crude oil;
and (7) any other material, substance or waste to which liability or standards
of conduct may be imposed under any Environmental Laws. Notwithstanding
anything contained herein to the contrary, the terms of this Paragraph 7.2
shall survive the Closing and the delivery of the Deed and termination of this
Agreement.
7.3. Seller has provided to Purchaser certain unaudited historical
financial information regarding the Property relating to certain periods of
time in which Seller owned the Property. Seller and Purchaser hereby
acknowledge that such information has been provided to Purchaser at Purchaser's
request solely as illustrative material. Except as expressly set forth herein,
Seller makes no representation or warranty that such material is complete or
accurate or that Purchaser will achieve similar financial or other results with
respect to the operations of the Property, it being acknowledged by Purchaser
that Seller's operation of the Property and allocations of revenues or expenses
may be vastly different than Purchaser may be able to attain. Purchaser
acknowledges that it is a sophisticated and experienced purchaser of real
estate and further that Purchaser has relied upon its own investigation and
inquiry with respect to the operation of the Property, except with respect to
the representations and warranties of Seller expressly contained herein and
releases Seller and the Affiliates of Seller from any liability with respect to
such historical information, except with respect to a breach of a
representation or warranty of Seller contained herein. Notwithstanding
anything contained herein to the contrary, the terms of this Paragraph 7.3
shall survive the Closing and the delivery of the Deed and termination of this
Agreement.
7.4. Seller has provided to Purchaser the following existing reports:
Phase I Environmental Site Assessment and Limited Asbestos Survey prepared by
Law Associates, Inc. dated March 16, 1992 under Project No. 58-2510,
Environmental Soil Investigative Report dated October 4, 1993 under Project No.
50011.05, Phase I Environmental Site Assessment Report dated August 31, 1993
under Project No. 50011.04, and Phase I Environmental Site Assessment Report
dated November 1, 1993 under Project No. 50011.04 ("Existing Reports"). Seller
makes no representation or warranty concerning the accuracy or completeness of
the Existing Reports. Purchaser hereby releases Seller and the Affiliates of
Seller from any liability whatsoever with respect to the Existing Reports, or,
including, without limitation, the matters set forth in the Existing Reports,
and the accuracy and/or completeness of the Existing Reports. Furthermore,
Purchaser acknowledges that it will be purchasing the Property with all faults
disclosed in the Existing Reports. Notwithstanding anything contained herein
to the contrary, the terms of this Paragraph 7.4 shall survive the Closing and
the delivery of the Deed and termination of this Agreement.
8. CLOSING. The closing of this transaction (the "Closing") shall be on
August 1, 1996 (the "Closing Date"), at the local California office of the
Title Insurer, which time Seller shall deliver possession of the Property to
Purchaser. This transaction shall be closed through an escrow with Title
Insurer, in accordance with the general provisions of the usual and customary
form of deed and money escrow for similar transactions in California, or at the
option of either party, the Closing shall be a "New York style" closing at
which the Purchaser shall wire the Purchase Price to Title Insurer on the
Closing Date and prior to the release of the Purchase Price to Seller,
Purchaser shall receive the Title Policy or marked up commitment dated the date
of the Closing Date. In the event of a New York style closing, Seller shall
deliver to Title Insurer any customary affidavit in connection with a New York
style closing. All closing and escrow fees shall be divided equally between
the parties hereto.
9. CLOSING DOCUMENTS.
9.1. On or prior to the Closing Date, Seller and Purchaser shall execute
a joint closing statement. Purchaser and Seller shall also execute (and cause
the Title Insurer to execute) a designation agreement with respect to reporting
requirements under IRC 1099. In addition, Purchaser shall deliver to Seller
the balance of the Purchase Price, an assumption of the documents set forth in
Paragraph 9.2.3 and 9.2.4 and such other documents as may be reasonably
required by the Title Insurer in order to consummate the transaction as set
forth in this Agreement.
9.2. On the Closing Date, Seller shall deliver to Purchaser the
following:
9.2.1. the Deed (in the form of Exhibit D attached hereto),
subject to Permitted Exceptions and those Unpermitted Exceptions waived by
Purchaser;
9.2.2. a bill of sale conveying the Personal Property (in the
form of Exhibit E attached hereto);
9.2.3. assignment and assumption of intangible property (in the form
attached hereto as Exhibit F), including, without limitation, the service
contracts listed in Exhibit G (the "Service Contracts");
9.2.4. an assignment and assumption of leases and security deposits
and pet deposits (in the form attached hereto as Exhibit H);
9.2.5. non-foreign affidavit (in the form of Exhibit I attached
hereto);
9.2.6. California Form 590 (California FIRPTA affidavit);
9.2.7. original, and/or copies of, leases and service contracts
affecting the Property in Seller's possession or in the possession of the
current manager of the Property;
9.2.8. all documents and instruments reasonably required by the
Title Insurer to issue the Title Policy;
9.2.9. possession of the Property to Purchaser, subject to the terms
of leases;
9.2.10. evidence of the termination of the management agreement;
9.2.11. notice to the tenants of the Property of the transfer of
title and assumption by Purchaser of the landlord's obligation under the leases
and the obligation to refund the security deposits (in the form of Exhibit J);
9.2.12. an updated rent roll;
9.2.13. a letter indicating payment of all association dues due
under recorded declarations or covenants and the amount thereof; and
9.2.14. an insured closing letter.
10. PURCHASER'S DEFAULT. ALL EARNEST MONEY DEPOSITED INTO THE ESCROW IS TO
SECURE THE TIMELY PERFORMANCE BY PURCHASER OF ITS OBLIGATIONS AND UNDERTAKINGS
UNDER THIS AGREEMENT. IN THE EVENT OF A DEFAULT OF THE PURCHASER UNDER THE
PROVISIONS OF THIS AGREEMENT, SELLER SHALL RETAIN ALL OF THE EARNEST MONEY AND
THE INTEREST THEREON AS SELLER'S SOLE RIGHT TO DAMAGES OR ANY OTHER REMEDY,
EXCEPT FOR PURCHASER'S OBLIGATIONS TO INDEMNIFY SELLER AND RESTORE THE PROPERTY
AS SET FORTH IN PARAGRAPH 7.1 HEREOF. THE PARTIES HAVE AGREED THAT SELLER'S
ACTUAL DAMAGES, IN THE EVENT OF A DEFAULT BY PURCHASER, WOULD BE EXTREMELY
DIFFICULT OR IMPRACTICAL TO DETERMINE. THEREFORE, BY PLACING THEIR INITIALS
BELOW, THE PARTIES ACKNOWLEDGE THAT THE EARNEST MONEY HAS BEEN AGREED UPON,
AFTER NEGOTIATION, AS THE PARTIES' REASONABLE ESTIMATE OF SELLER'S DAMAGES.
11. SELLER'S DEFAULT. IF THIS SALE IS NOT COMPLETED BECAUSE OF SELLER'S
DEFAULT, PURCHASER'S SOLE REMEDY SHALL BE THE RETURN OF ALL EARNEST MONEY
TOGETHER WITH ANY INTEREST ACCRUED THEREON, AND THIS AGREEMENT SHALL THEN
BECOME NULL AND VOID AND OF NO EFFECT AND THE PARTIES SHALL HAVE NO FURTHER
LIABILITY TO EACH OTHER AT LAW OR IN EQUITY, EXCEPT FOR PURCHASER'S OBLIGATIONS
TO INDEMNIFY SELLER AND RESTORE THE PROPERTY AS SET FORTH MORE FULLY IN
PARAGRAPH 7. NOTWITHSTANDING ANYTHING CONTAINED HEREIN TO THE CONTRARY, IF
SELLER'S DEFAULT IS ITS WILLFUL REFUSAL TO DELIVER THE DEED, THEN PURCHASER
WILL BE ENTITLED TO SUE FOR SPECIFIC PERFORMANCE.
12. PRORATIONS.
12.1. Rents (exclusive of delinquent rents [i.e. unpaid on the Closing
Date], but including prepaid rents); prepaid associations dues, refundable
security and pet deposits, if any (which will be assigned to and assumed by
Purchaser and credited to Purchaser at Closing); water and other utility
charges; fuels; prepaid operating expenses; real and personal property taxes;
and other similar items shall be adjusted ratably as of 12:01 a.m. on the
Closing Date, and credited against the balance of the cash due at Closing.
Assessments payable in installments which are due subsequent to the Closing
Date shall be paid by Purchaser. If the amount of any of the items to be
prorated is not then ascertainable, the adjustments thereof shall be on the
basis of the most recent ascertainable data. All prorations will be final
except as to delinquent rent referred to in Paragraph 12.2 below and except as
provided in the last sentence of this section. All refunds of real estate
taxes relating to periods prior to the Closing Date shall be the property of,
and shall be paid to, Seller. The parties agree to make such post-closing and
readjustments as may be required due to errors and omissions in the prorations
or due to obtaining actual amounts for items which were prorated based on
estimates within thirty (30) days after the Closing Date.
12.2. All rent paid following the Closing Date by any tenant of the
Property who is indebted under a lease for basic rent for any period prior to
and including the Closing Date after the payment to Purchaser of all current
rent and any past due rent owed to Purchaser shall be deemed a "Post-Closing
Receipt" until such time as all such indebtedness is paid in full. Within ten
(10) days following each receipt by Purchaser of a Post-Closing Receipt,
Purchaser shall pay such Post-Closing Receipt to Seller. Purchaser shall use
its best efforts to collect all amounts which, upon collection, would
constitute Post-Closing Receipts hereunder but shall have no obligation to
bring legal action. Within 120 days after the Closing Date, Purchaser shall
deliver to Seller a reconciliation statement of Post-Closing Receipts through
the first 90 days after the Closing Date. Upon the delivery of the
Post-Closing Receipts reconciliation, Purchaser shall deliver to Seller any
Post-Closing Receipts owing to Seller and not previously delivered to Seller in
accordance with the terms hereof. Seller retains the right to conduct an
audit, at reasonable times and upon reasonable notice, of Purchaser's books and
records to verify the accuracy of the Post-Closing Receipts reconciliation
statement and upon the verification of additional funds owing to Seller,
Purchaser shall pay to Seller said additional Post-Closing Receipts and the
cost of performing Seller's audit. Paragraph 12.2 of this Agreement shall
survive the Closing and the delivery and recording of the deed.
13. RECORDING. Neither this Agreement nor a memorandum thereof shall be
recorded and the act of recording by Purchaser shall be an act of default
hereunder by Purchaser and subject to the provisions of Paragraph 10 hereof.
14. ASSIGNMENT. The Purchaser shall not have the right to assign its interest
in this Agreement without the prior written consent of the Seller. Any
assignment or transfer of, or attempt to assign or transfer, Purchaser's
interest in this Agreement shall be an act of default hereunder by Purchaser
and subject to the provisions of Paragraph 10 hereof. Notwithstanding the
foregoing, Purchaser may assign its interest in this Agreement without the
consent of Seller to any entity in which Purchaser owns a controlling interest
or for which Purchaser is the investment advisor provided that Purchaser
remains liable for and the assignee assumes the obligations of Purchaser
hereunder with respect to indemnifications and amounts payable in the event of
a termination of this Agreement, including, without limitation, damages. Upon
such assignment, Purchaser (but not the assignee) shall be released from all
other liabilities and obligations hereunder.
15. BROKER. The parties hereto represent and warrant that no broker
commission or finder fee is due and payable in connection with this transaction
other than to CB Commercial Real Estate Group, Inc. ("Seller's Broker") (to be
paid by Seller). Seller's commission to Seller's Broker shall only be payable
out of the proceeds of the sale of the Property in the event the transaction
set forth herein closes. Purchaser and Seller shall indemnify, defend and hold
the other party hereto harmless from any claim whatsoever (including without
limitation, reasonable attorney's fees, court costs and costs of appeal) from
anyone claiming by or through the indemnifying party any fee, commission or
compensation on account of this Agreement, its negotiation or the sale hereby
contemplated other than to Seller's Broker. The indemnifying party shall
undertake its obligations set forth in this Paragraph 15 using attorneys
selected by the indemnifying party and reasonably acceptable to the indemnified
party. The provisions of this Paragraph 15 will survive the Closing and
delivery of the Deed.
16. REPRESENTATIONS AND WARRANTIES.
16.1. Any reference herein to Seller's knowledge or notice of any matter
or thing shall only mean such actual knowledge of Mark Saturno or Reid Reynolds
(asset manager) ("Seller's Representatives") or notice that has actually been
received or sent by Seller's Representatives, and any representation or
warranty of the Seller is based upon those matters of which the Seller's
Representatives has actual knowledge or receipt. Seller's Representatives
shall deliver a copy of the representations and warranties contained in
Paragraph 16.2 below to the existing property manager, Darlene Molner, for its
review and request the property manager inform Seller's Representative of any
inaccuracies contained in such representations and warranties. Except as set
forth in the previous two sentences, any knowledge or notice given, had or
received by any of Seller's agents, servants or employees shall not be imputed
to Seller, the general partner or limited partners of Seller, the subpartners
of the general partner or limited partners of Seller or Seller's
Representatives.
16.2. Subject to the limitations set forth in Paragraph 16.1, Seller
hereby makes the following representations and warranties, which
representations and warranties are made to Seller's knowledge and which shall,
subject to Paragraph 16.4, be remade at Closing, and shall survive Closing to
the extent set forth in Paragraph 16.5:
(i) Seller has no knowledge of any pending or threatened litigation,
claim, cause of action or administrative proceeding concerning the Property,
including, without limitation, against Seller under the Fair Housing Act (42
U.S.C. Sec. 3601 et.seq., as amended);
(ii) Seller has the full right, power and authority to execute and deliver
this Agreement (and the documents and instruments to be executed and delivered
by Seller pursuant hereto) and consummate the transactions contemplated herein,
and this Agreement (and the documents and instruments to be executed and
delivered by Seller pursuant hereto) is the legal, valid and binding obligation
of Seller, enforceable in accordance with its terms, and does not and will not
at Closing violate or conflict with any provisions of any agreement to which
Seller is a party;
(iii) the rent roll attached hereto as Exhibit K (the "Rent Roll")
which Seller will update as of the Closing Date is accurate and complete (but
only as to the information contained thereon) as of the date set forth thereon;
(iv) Seller has not received written notice of any material default or
material breach on the part of the landlord under any lease shown on the Rent
Roll;
(v) Seller has not received written notice from any governmental
authority that the use and operation of the Property is in violation of
applicable building codes, zoning or land use laws which has not previously
been corrected;
(vi) Seller is not a "foreign person" within the meaning of section
1445(f)(3) of the Internal Revenue Code of 1986, as amended and that Seller
will furnish to Purchaser, at or prior to Closing, an affidavit in form
satisfactory to Purchaser confirming the same;
(vii) Seller has no employees working at the Property;
(viii) There are no service contracts affecting the Property, other
than the Service Contracts listed in Exhibit G and Seller has received no
written notice of default with respect to any of the Service Contracts;
(ix) Except as may be set forth in the Existing Reports, Seller has not
received any written notice from any governmental authority having jurisdiction
over the Property of any uncured violation of any Environmental Law with
respect to the Property; and
(x) The Existing Reports are the only environmental report of the
Property provided to or obtained by Seller since November, 1993.
16.3. Purchaser hereby represents and warrants to Seller that Purchaser
has the full right, power and authority to execute and deliver this Agreement
and consummate the transactions contemplated herein (and the documents and
instruments to be executed and delivered by Purchaser pursuant hereto), and
this Agreement is the legal, valid and binding obligation of Purchaser,
enforceable with its terms, and does not and will not at Closing violate or
conflict with any provisions of any agreement to which Purchaser is a party.
16.4. If at any time after the execution of this Agreement, either
Purchaser or Seller become aware of information which makes a representation
and warranty contained in this Agreement to become untrue in any material
respect, said party shall promptly disclose said information to the other party
hereto. Provided the party making the representation or warranty did not take
any deliberate actions to cause the representation or warranty in question to
become untrue in any material respect, said party shall not be in default under
this Agreement and the sole remedy of the other party shall be to terminate
this Agreement, except for Purchaser's obligation to indemnify Seller and
restore the Property, as more fully set forth in Paragraph 7. Notwithstanding
anything contained herein to the contrary, if the status of any of the
tenancies changes from the date of the rent roll attached hereto and the date
of the rent roll delivered at Closing, provided the change in status is not
caused by a breach of Seller's covenants contained in Paragraph 16.6 herein,
then Purchaser shall not have the right to terminate this Agreement or make any
claim for a breach of a representation or warranty hereunder involving the rent
roll or tenancies thereunder. Purchaser and Seller are prohibited from making
any claims against the other party hereto after the Closing with respect to any
breaches of the other party's representations and warranties contained in this
Agreement that the claiming party has actual knowledge of prior to the Closing.
16.5. The parties agree that the representations contained herein
shall survive Closing for a period of four (4) months (i.e., the claiming party
shall have no right to make any claims against the other party for a breach of
a representation or warranty after the expiration of four (4) months
immediately following Closing).
16.6. Seller covenants to operate, lease, maintain and manage the
Property in the same manner that it has managed, maintained, leased and
operated the Property during the period of Seller's ownership, subject to
reasonable wear and tear and casualty. Without limitation of the foregoing, so
long as this Agreement shall remain in effect: Seller shall maintain Seller's
current insurance coverage presently in effect; Seller shall not enter into any
letter of intent or contract to sell the Property with any third party; Seller
shall furnish Purchaser with monthly rent rolls, delinquency reports and
operating statements as they become available; Seller agrees not to enter into
any other service contracts affecting the Property which cannot be terminated
without cause on 30 days notice, without penalty; commencing five (5) days
prior to Closing, Seller shall cooperate with Purchaser's management personnel
in arranging for a management transition; and Seller agrees to terminate any
and all management agreements affecting the Property as of the Closing Date.
16.7. The continued accuracy in all material respects of the aforesaid
representations and warranties shall be a condition precedent to Purchaser's
obligation to close. If at Closing any of said representations and warranties
shall not be correct at the time the same is made in any material respect,
Purchaser may, as its sole and exclusive remedy, terminate this Agreement in
which event the earnest money shall be returned to Purchaser, including all
interest earned thereon, and there shall be no further liability of either
party to the other, except for Purchaser's obligation to indemnify Seller and
restore the Property, as more fully set forth in Paragraph 7.
17. LIMITATION OF LIABILITY. None of any partners of Seller, Affiliate of
Seller or any of their respective beneficiaries, shareholders, partners,
officers, directors, agents or employees, heirs, successors or assigns shall
have any personal liability of any kind or nature for or by reason of any
matter or thing whatsoever under, in connection with, arising out of or in any
way related to this Agreement and the transactions contemplated herein, and
Purchaser hereby waives for itself and anyone who may claim by, through or
under Purchaser any and all rights to sue or recover on account of any such
alleged personal liability.
Notwithstanding anything contained herein to the contrary, Purchaser
hereby agrees that the maximum aggregate liability of Seller, in connection
with, arising out of or in any way related to a breach by Seller under this
Agreement or any document or conveyance agreement in connection with the
transaction set forth herein after the Closing shall be $200,000. Purchaser
hereby waives for itself and anyone who may claim by, through or under
Purchaser any and all rights to sue or recover from Seller any amount greater
than said limit.
18. TIME OF ESSENCE. Time is of the essence of this Agreement.
19. NOTICES. Any notice or demand which either party hereto is required or
may desire to give or deliver to or make upon the other party shall be in
writing and may be personally delivered or given or made by overnight courier
such as Federal Express, by facsimile transmission or made by United States
registered or certified mail addressed as follows:
TO SELLER: c/o The Balcor Company
Bannockburn Lake Office Plaza
2355 Waukegan Road
Suite A-200
Bannockburn, Illinois 60015
Attention: Ilona Adams
with copies to: The Balcor Company
Bannockburn Lake Office Plaza
2355 Waukegan Road
Suite A-200
Bannockburn, Illinois 60015
Attention: Alan Lieberman
(708) 317-4360
(708) 317-4462 (FAX)
and to: Katten Muchin & Zavis
525 West Monroe Street
Suite 1600
Chicago, Illinois 60661-3693
Attention: Daniel J. Perlman, Esq.
(312) 902-5532
(312) 902-1061 (FAX)
TO PURCHASER: RREEF Funds
650 California Street
Suite 1800
San Francisco, California 94109
Attention: Scott M. Stuckman and Tracy DeMay
(415) 781-3300
(415) 781-2229 (FAX)
and one copy to: Orrick, Herrington & Sutcliffe
777 South Figueroa Street
Los Angeles, California 90017
Attention: Sara H. Reynolds, Esq.
(213) 612-2479
(213) 612-2499 (FAX)
subject to the right of either party to designate a different address for
itself by notice similarly given. Any notice or demand so given shall be
deemed to be delivered, received or made on the next business day if sent by
overnight courier, or the same day as given if sent by facsimile transmission
and received by 5:00 p.m. Chicago time or on the 4th business day after the
same is deposited in the United States Mail as registered or certified matter,
addressed as above provided, with postage thereon fully prepaid. Any such
notice, demand or document not given, delivered or made by registered or
certified mail, by overnight courier or by facsimile transmission as aforesaid
shall be deemed to be given, delivered or made upon receipt of the same by the
party to whom the same is to be given, delivered or made. Copies of all
notices shall be served upon the Escrow Agent.
20. EXECUTION OF AGREEMENT AND ESCROW AGREEMENT. Purchaser will execute two
(2) copies of this Agreement and three (3) copies of the Escrow Agreement and
forward them to Seller for execution. Within one (1) business day of receipt
of a fully executed copy (which may be transmitted by telecopy or to
Purchaser's attorney) of this Agreement, Purchaser shall wire transfer the
Earnest Money to the Escrow Agent set forth in the Escrow Agreement. Seller
will forward one (1) copy of the executed Agreement to Purchaser and will
forward the following to the Escrow Agent:
(A) One (1) fully executed copy of this Agreement; and
(B) Three (3) copies of the Escrow Agreement signed by the parties with a
direction to execute two (2) copies of the Escrow Agreement and deliver a fully
executed copy to each of the Purchaser and the Seller.
21. GOVERNING LAW. The provisions of this Agreement shall be governed by the
laws of the California, except that with respect to the retainage of the
Earnest Money as liquidated damages the laws of the State of Illinois shall
govern.
22. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement between
the parties and supersedes all other negotiations, understandings and
representations made by and between the parties and the agents, servants and
employees.
23. COUNTERPARTS. This Agreement may be executed in multiple counterparts,
each of which shall be deemed an original but all of which shall constitute one
and the same instrument.
24. CAPTIONS. Paragraph titles or captions contained herein are inserted as a
matter of convenience and for reference, and in no way define, limit, extend or
describe the scope of this Agreement or any provision hereof.
25. CONDITION PRECEDENT. Subject to the remedies available to the parties
hereunder in the event of a default, it is a condition precedent to Seller's
and Purchaser's obligations to perform under this Agreement that Purchaser
acquire that certain property commonly known as Sand Pebble Village I
Apartments (the "Other Property") in accordance with the terms of the Agreement
of Sale (the "Other Property Contract") between Pebble Sand Limited Partnership
("Other Property Seller") and Purchaser of even date herewith for the sale of
the Other Property to Purchaser. The purchase and sale of the Property and the
purchase and sale of the Other Property shall occur simultaneously.
The occurrence of a default by Purchaser under the Other Property Contract
shall constitute an event of default by Purchaser under this Agreement and the
occurrence of a default by Purchaser under this Agreement shall constitute an
event of default by Purchaser under the Other Property Contract. If Seller
defaults under this Agreement, Purchaser shall have the right to elect to
terminate the Other Property Contract and in such event Purchaser shall be
entitled to receive all earnest money deposited pursuant to the Other Property
Contract and all interest earned thereon. If Seller defaults under the Other
Property Contract, Purchaser shall have the right to elect to terminate the
Contract and in such event Purchaser shall be entitled to receive all earnest
money deposited pursuant hereto and all interest earned thereon.
If Purchaser terminates this Agreement pursuant to Section 7 hereof, or
pursuant to any other section of this Agreement, the Purchaser shall also be
deemed to have terminated the Other Property Contract. Similarly, if Purchaser
terminates the Other Property Contract pursuant to Paragraph 7 thereof or any
other section of the Other Property Contract, Purchaser shall also be deemed to
have terminated this Agreement.
IN WITNESS WHEREOF, the parties hereto have put their hand and seal as of
the date first set forth above.
PURCHASER:
RREEF AMERICA L.L.C., a Delaware limited
liability company
By: /s/Scott M. Stuckman
------------------------------
Name: Scott M. Stuckman
----------------------------
Its: Authorized Representative
-----------------------------
SELLER:
3957 PIERCE LIMITED PARTNERSHIP, an Illinois
limited partnership
By: 3957 Pierce, Inc., an Illinois corporation,
its general partner
By: /s/Alan G. Lieberman
-------------------------------
Name: Alan G. Lieberman
-----------------------------
Its: Senior Vice President
------------------------------
of CB Commercial Real Estate Group, Inc. ("Seller's Broker")
executed this Agreement in its capacity as a real estate broker and
acknowledges that the fee or commission due it from Seller as a result of the
transaction described in this Agreement is as set forth in that certain Listing
Agreement, dated __, 199_ between Seller and Seller's Broker (the "Listing
Agreement"). Seller's Broker also acknowledges that payment of the aforesaid
fee or commission is conditioned upon the Closing and the receipt of the
Purchase Price by the Seller. Seller's Broker agrees to deliver a receipt to
the Seller at the Closing for the fee or commission due Seller's Broker and a
release, in the appropriate form, stating that no other fees or commissions are
due to it from Seller or Purchaser.
CB Commercial Real Estate Group, Inc.
By:__________________________________
Exhibits
A - Legal
B - Personal Property
C - Escrow Agreement
D - Deed
E - Bill of Sale
F - Assignment and Assumption of Intangible Property
G - Service Contracts
H - Assignment and Assumption of Leases and Security Deposits
I - Non-Foreign Affidavit
J - Notice to Tenants
K - Rent Roll