EXHIBIT 1
---------
OAK VIEW APARTMENTS
AGREEMENT OF SALE AND PURCHASE
THIS AGREEMENT ("Agreement") is made and entered into this 9th day of
March, 1998 by and between The ▇▇▇▇▇▇▇▇▇ Group, Inc. (hereinafter referred
to as "Purchaser") and LincAm Properties Ltd. Series 85, an Illinois
limited partnership (hereinafter referred to as "Seller").
W I T N E S S E T H:
WHEREAS, Seller is the owner of that certain parcel of real property
located in the County of Richmond, State of Georgia, and being more
particularly described on Exhibit "A" attached hereto and made a part
hereof by reference ("Land"), on which Land is located an apartment complex
known as the Oak View Apartments, 3506 Oak View Place, Augusta, Richmond
County, Georgia and the owner of certain furnishings, fixtures, equipment,
tangible personal property and intangible property contained therein and/or
used in connection therewith; and
WHEREAS, Purchaser is desirous of purchasing such Land together with
all furnishings, fixtures, equipment, intangible property, and personal
property contained therein or used in connection therewith (excluding any
of the aforesaid as owned by tenants of the apartment complex) subject to
the conditions and the other agreements hereinafter set forth, and Seller
is agreeable to such sale and to such conditions and agreements.
NOW, THEREFORE, in consideration of the premises and the respective
undertakings of the parties hereinafter set forth, One Hundred and No/100
Dollars each paid to the other, the receipt and sufficiency of which
consideration are hereby acknowledged, it is hereby agreed as follows:
I.
SALE OF PROPERTY
1.1 In consideration of the Purchase Price (as hereinafter defined)
and upon the terms and conditions hereinafter set forth Seller shall sell
to Purchaser and Purchaser shall purchase from Seller;
1.1.1 The Land, together with all rights and appurtenances
pertaining to such real estate including, without limitation, any and all
rights, title and interests of Seller in and to all roads, alleys,
easements, streets and ways adjacent to the Land, strips and gores and
rights of ingress and egress thereto;
1.1.2 All improvements, structures and fixtures placed,
constructed or installed on the Land (the "Improvements");
1.1.3 All equipment, furnishings, materials, inventory,
warranties, guaranties, site plans, surveys, plans and specifications
applicable to the Property, (the "Personal Property") and owned by Seller,
and which is placed or installed on or about the Land or Improvements or
used as part of or in connection therewith, including, without limitation,
keys, permits, leasing materials and forms, marketing material provided
AMLI's name is not printed on such materials, bonds, warranties and
guarantees; and
1.1.4 All leases, occupancy and rental agreements with
tenants or occupants having rights with regard to the use of the Land or
the Improvements and all security deposits or like payments, if any, paid
by tenants or other security provided in connection therewith
(collectively, the "Tenant Leases");
1.1.5 All contracts, maintenance, repair, service and pest
control contracts, architectural, janitorial, elevator and landscaping
contracts and all other contracts pursuant to which services or goods are
provided to any part of the Land, Improvements and/or Personal Property
(collectively, the "Service Contracts");
1.1.6 All right, title and interest of Seller, if any, in and
to all intangible property (collectively, the "Intangible Property") owned
by the Seller, including but not limited to Seller's rights under
governmental permits or approvals, the right to the use of the trade name
of "Oak View Apartments", and goodwill relating thereto, and any other
trademarks and trade names, EXCLUDING THE NAME "AMLI" OR ANY ASSOCIATED
NAME USING "AMLI" THEREIN, together with all telephone exchange numbers
related to the Improvements, to the extent assignable.
1.2 The Land, Improvements, Personal Property, Tenant Leases,
Service Contracts, Intangible Property, and other matters covered hereby
shall be referred to collectively herein as the "Property" or the
"Project."
II.
PURCHASE PRICE AND ▇▇▇▇▇▇▇ MONEY
2.1 The purchase price (the "Purchase Price") for the Property
shall be Three Million One Hundred Thousand and No/100ths Dollars
($3,100,000.00) and shall be payable in the manner set forth in Article III
below.
2.2 ▇▇▇▇▇▇▇ money in the amount of Fifty Thousand and No/100ths
Dollars ($50,000.00) (the "▇▇▇▇▇▇▇ Money") will be deposited in escrow with
Chicago Title Insurance Company, ▇▇▇▇-▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇,
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ (the "Title Company") by Purchaser by the Effective
Date. The ▇▇▇▇▇▇▇ Money shall be non-refundable to Purchaser, provided
that Seller shall fulfill Seller's obligations under this Agreement and the
conditions precedent (as described in Article V hereinafter) are satisfied
or waived by Purchaser within forty-five (45) days of the date of this
Agreement ("Termination Date"). In the event all of the conditions
precedent are not fulfilled or waived by Purchaser prior to the Termination
Date, Purchaser may, in Purchaser's sole discretion deliver written notice
thereof to Seller of the termination of this Agreement, and the ▇▇▇▇▇▇▇
Money, less Twenty Five Thousand and No/100 Dollars ($25,000.00) shall be
promptly returned to Purchaser without any further instructions or delay,
and this Agreement shall be terminated and null and void. If such notice
is not given by Purchaser to Seller on or before said Termination Date
concerning the conditions precedent, then in that event the parties agree
that the conditions precedent shall be deemed satisfied or waived by
Purchaser and this Agreement shall be in full force and effect and the
▇▇▇▇▇▇▇ Money shall be non-refundable except for Seller's failure to
perform Seller's obligations under this Agreement. All ▇▇▇▇▇▇▇ Money
deposited pursuant hereto shall be placed in an interest bearing account,
pursuant to the instructions of Purchaser, with all interest accruing
thereon shall belong to Purchaser. Seller and Purchaser agree to enter
into Title Company's standard escrow agreement concerning the escrow of the
▇▇▇▇▇▇▇ Money, and any expense associated with the escrow agreement shall
be borne by the Purchaser.
Purchaser acknowledges and agrees that from and after the
Effective Date, Twenty-Five Thousand and No/100 Dollars ($25,000.00) of the
▇▇▇▇▇▇▇ Money is non-refundable to Purchaser and shall be paid by Title
Company to Seller even in the event of the Termination of this Agreement by
Purchaser pursuant to Purchaser's right to terminate this Agreement except
for and in the event Purchaser has raised reasonable objections to survey
matters, or title matters, or environmental matters, which are not waived
by Purchaser or not cured by Seller, or Seller fails to perform Seller's
obligations and duties under this Agreement, or a casualty or condemnation
occurs and Purchaser terminates the Agreement pursuant to Article XIII
hereof. Notwithstanding anything contained in this Agreement, except in
the instances stated in the immediate preceding sentence, any reference in
the Agreement to the return of the ▇▇▇▇▇▇▇ Money to the Purchaser or the
return of all ▇▇▇▇▇▇▇ Money to the Purchaser shall mean a return of only
Twenty-Five Thousand and No/100 Dollars ($25,000.00) of the ▇▇▇▇▇▇▇ Money
to the Purchaser and the payment of Twenty-Five Thousand and No/100 Dollars
($25,000.00) of the ▇▇▇▇▇▇▇ Money to the Seller.
III.
PAYMENT OF PURCHASE PRICE
3.1 The Purchase Price shall be payable at Closing in cash, by wire
transfer, cashier's or certified check, subject to the prorations
hereinafter set forth, at the election of the Seller.
3.2 The Seller shall deliver the Property at Closing free of all
liens, security interests, and encumbrances, other than the lien for
current taxes not yet due or payable, and the Permitted Exceptions
(hereinafter defined).
3.3 The ▇▇▇▇▇▇▇ Money shall be applied at Closing to the Purchase
Price, except as may be otherwise provided herein.
IV.
CLOSING
4.1 The closing of the transaction contemplated herein shall be
held not later than seventy-five (75) days from the Effective Date (the
"Closing Date, or the "Closing") the actual date to be designated by
Purchaser upon at least fifteen (15) days prior written notice to Seller at
any time after the expiration of the Review Period. The Closing shall be
held in Atlanta, Georgia. The procedure to be followed by the parties in
connection with the Closing shall be as follows:
4.1.1 At the Closing, the Seller shall cause to be delivered to
the Purchaser the items specified herein and the following items, which
shall be, where appropriate, duly and properly executed and acknowledged,
in recordable form, and in form and substance reasonably satisfactory to
Purchaser;
4.1.1.1 A limited warranty deed (the "Deed") dated as
of the Closing Date, in favor of Purchaser or its Permitted Assignee
(hereinafter defined) subject only to the Permitted Exceptions.
EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT
OR IN THE LIMITED WARRANTY DEED AND THE OTHER SALE DOCUMENTS TO BE EXECUTED
BY SELLER, PURCHASER AGREES TO ACCEPT THE PROPERTY IN "AS-IS" "WHERE-IS"
CONDITION AS OF THE CLOSING DATE (WHICH SHALL BE PROVIDED IN SAID LIMITED
WARRANTY DEED), AND PURCHASER AGREES THAT, EXCEPT AS EXPRESSLY PROVIDED IN
THIS AGREEMENT AND IN THE LIMITED WARRANTY DEED AND THE OTHER SALE
DOCUMENTS TO BE EXECUTED BY SELLER, SELLER HAS NOT MADE ANY REPRESENTATIONS
OR WARRANTIES, EXPRESS OR IMPLIED, TO PURCHASER REGARDING THE PROPERTY,
INCLUDING BUT NOT LIMITED TO MERCHANTABILITY, FITNESS FOR PURPOSE,
ENVIRONMENTAL LAWS, HAZARDOUS MATERIALS, HAZARDOUS MATERIAL CONTAMINATION,
OR PETROLEUM PRODUCTS. SELLER SHALL BE UNDER NO OBLIGATION TO MAKE ANY
PRICE ADJUSTMENTS TO THE PURCHASE PRICE OR ANY REPAIRS TO THE PROPERTY OUT
OF THE ORDINARY COURSE OF BUSINESS;
4.1.1.2 An assignment and assumption of leases (the
"Assignment of Leases") dated as of the Closing Date, in favor of Purchaser
or its Permitted Assignee assigning Tenant Leases;
4.1.1.3 A blanket limited warranty conveyance, ▇▇▇▇ of
sale and assignment (the "▇▇▇▇ of Sale"), conveying and assigning to
Purchaser or its Permitted Assignee all Personal Property, and all
Intangible Property, and assigning to Purchaser or its Permitted Assignee
the Approved Service Contracts (defined in Section 5.2) and the warranties
and guarantees, free and clear of all liens, security interests, and
encumbrances;
4.1.1.4 A certificate (the "Bills Paid Certificate")
executed by the Seller and dated as of the Closing Date certifying that no
bills or obligations are unpaid or outstanding, or so stating otherwise;
4.1.1.5 A certified current rent roll (the "Rent Roll
Certificate") for the Project, certified by the Seller to be true and
correct in all material respects as of the Closing Date;
4.1.1.6 Evidence reasonably acceptable to the Title
Company, authorizing the consummation by Seller of the purchase and sale
transaction contemplated hereby and the execution and delivery of the
closing documents on behalf of Seller, including but not limited to,
current corporate authority, partnership authority;
4.1.1.7 All keys to all locks on the Property and all
documents in the possession of the Seller pertaining to tenants of the
Property, including, but not limited to all original leases, applications,
correspondence, credit reports relating to each such tenant, historical
occupancy reports, rental history, including but not limited to, amounts of
percentage rents to the extent such items are in Seller's or the property
management company's possession or are readily obtainable by them, without
unreasonable cost or undue hardship (the items referred to in this Section
4.1.1.7 may be delivered at the Project rather than at the Closing);
4.1.1.8 To the extent not previously delivered to
Purchaser, to the extent such items are in Seller's or the property
management company's possession, without unreasonable cost or undue
hardship, all necessary permits issued by appropriate governmental
authorities and utility companies when the Improvements were completed;
4.1.1.9 To the extent not previously delivered to
Purchaser, any plans, specifications. mechanical, electrical and plumbing
layouts, operating manuals, leasing information and the like in the
possession of Seller and utilized in connection with the operation of the
Property;
4.1.1.10 To the extent not previously delivered to
Purchaser, current tax statements, if available;
4.1.1.11 The Notice to Tenants (herein so called)
addressed to each tenant of the Project;
4.1.1.12 All original or copies, if originals not in the
physical possession of Seller or property management company, of service
contracts, maintenance agreements, bonds, permits, licenses, utility
agreements, soil reports, environmental reports, certificates of occupancy,
maintenance records, records pertaining to the replacements of equipment or
appliances, and copies of all utility bills in possession or control of
Seller;
4.1.1.13 A current (no older than 90 days) termite
clearance letter;
4.1.1.14 Standard Seller's affidavit presently used in
the Metro Atlanta area;
4.1.1.15 Georgia Residency Affidavit, or in the
alternative an Affidavit of Seller's Gain as required under O.C.G.A.
section 48-7-128;
4.1.1.16 Real Estate Commercial Broker's Affidavit-
Seller;
4.1.1.17 Real Estate Commercial Broker's Affidavit-
Broker, from the Real Estate Broker;
4.1.1.18 1099S Real Estate Form;
4.1.1.19 Acquisition Real Estate Closing Statement, in
triplicate; and
4.1.1.20 Certification as to representations and
warranties being true and correct as of the Closing.
4.1.2 At the Closing, the Purchaser, or its Permitted Assignee,
shall cause to be delivered and executed where applicable, to the Seller
the following documents and instruments:
4.1.2.1 Funds payable to the Seller representing the
Purchase Price due in accordance with Article III hereof, less any ▇▇▇▇▇▇▇
Money already deposited if the same is to be applied to the total cash
payment required and the prorations hereinafter discussed;
4.1.2.2 Evidence reasonably acceptable to Seller and
the Title Company, authorizing the consummation by Purchaser of the
purchase and sale transaction contemplated hereby and the execution and
delivery of the closing documents on behalf of Purchaser;
4.1.2.3 The Assignment of Leases wherein Purchaser or
its Permitted Assignee assumes the lessor's obligations under the Leases;
4.1.2.4 The ▇▇▇▇ of Sale wherein Purchaser or its
Permitted Assignee assumes the Approved Service Contracts;
4.1.2.5 The Notice to Tenants;
4.1.2.6 Real Estate Commercial Broker's Affidavit-
Purchaser; and
4.1.2.7 Acquisition Real Estate Closing Statement.
4.1.3 At the Closing, the Seller and Purchaser shall cause to
be delivered such other instruments and documents as may be reasonably
necessary and appropriate and required hereunder in order to complete the
Closing of the transactions contemplated hereunder.
4.1.4 At the Closing, the Seller shall deliver to the Purchaser
a certificate in such form as may be required by the Internal Revenue
Service pursuant to Section 1445 of the Internal Revenue Code of 1986, as
amended, or the regulations issued pursuant thereto, certifying as to the
nonforeign status of a transferor, or such variation thereof as may be
required by the Internal Revenue Service.
4.2 Upon the completion of the deliveries specified in Section 4.1
above, and consummation of all other agreements herein, the closing
documents shall be delivered by the Seller and Purchaser, as executed, to
each other and the Purchaser shall pay and deliver the Purchase Price to
the Seller.
4.3 Seller shall pay all State of Georgia transfer tax and
brokerage commissions or finders fees. Seller and Purchaser shall each pay
their own respective legal fees. Purchaser shall pay any and all costs
associated with third party financing of the Property obtained by and in
favor of Purchaser, costs of all third-party inspection fees and all
recording costs, survey cost, title examination fees and title insurance
premiums for a base owner's title insurance policy and title premiums for
any specific endorsements to the owner's title insurance policy Purchaser
may request, and any other cost associated with the purchase and sale of
the Property.
4.4 Purchaser shall have a one time right to extend the Closing
Date for thirty (30) days from the Closing Date provided that all of the
following conditions precedent are met: i) Purchaser is not in default
under this Agreement; ii) Purchaser provides written notice to Seller at
least thirty (30) days prior to the Closing Date of its exercise of the
extension of the Closing Date for the single and sole purpose of
consummating a tax deferred exchange pursuant to Section 1031 of the
Internal Revenue Code, as amended; iii) with such written notice of the
exercise of the extension of the Closing Date Purchaser delivers and pays
to Seller Ten Thousand and No/100 Dollars ($10,000.00) as an extension fee
which is non-applicable to the Purchase Price and non refundable to the
Purchaser; and iv) simultaneously with the written notice of the exercise
of the extension of the Closing Date, Purchaser delivers its check in the
amount of Fifteen Thousand and No/100 Dollars ($15,000.00) as additional
▇▇▇▇▇▇▇ Money to the Title Company, which additional ▇▇▇▇▇▇▇ Money of
$15,000.00 shall be non refundable but applicable to the Purchase Price.
In the event all of the aforesaid conditions precedent have been met,
Purchaser shall have the right to exercise the extension of the Closing
Date and the Closing Date shall be extended by the aforesaid 30 days.
V.
REQUIREMENTS AND CONDITIONS
5.1 Upon execution of this Agreement, Purchaser and/or Seller, as
the case may be, shall perform the following within the time stated, each
of which shall be a condition precedent to Closing:
5.1.1 Purchaser at Purchaser's sole cost and expense, may
obtain a Commitment for Title Insurance or a Commitment to Insure (the
"Commitment") proposing to insure Purchaser's purchase of the Property
issued by Title Company showing Seller's title to the Property together
with copies of all recorded documents referenced in the Commitment.
Purchaser, at Purchaser's sole cost and expense, may obtain a survey of the
Property ("Survey"). Purchaser shall have until the end of the Review
Period to examine the condition of title and the Survey and approve or
disapprove the same by written notice to Seller. Those items listed in the
Commitment or shown on the Survey and not disapproved of by Purchaser by
written notice to Seller shall be referred to as the "Permitted
Exceptions." In the event that Purchaser disapproves of all or any item
referred to in the Commitment or as shown on the Survey, Seller shall have
a period of ten (10) business days after receipt of Purchaser's written
notice of title and/or Survey objections within which to advise Purchaser
of which items Seller will cure ("Cure Notice"). Upon receipt of Seller's
notice concerning which item Seller will cure and which items Seller will
not cure, Purchaser shall have the right, exercisable within five (5) days
of the receipt of Seller's Cure Notice, to either: (1) terminate this
Agreement, whereupon the Title Company is hereby authorized to, and shall
upon request of Purchaser, return to Purchaser all ▇▇▇▇▇▇▇ Money that has
been theretofore paid or deposited by Purchaser to it under or in
connection with this Agreement, without reduction or further delay or
instructions, and the parties hereto shall be released from all obligations
hereunder; or (2) waive any such title and/or Survey objections, which
title and/or Survey objections shall become Permitted Exceptions, and close
the purchase and sale of the Property pursuant to this Agreement provided
that Seller has performed its obligations and duties hereunder. If
Purchaser shall not so terminate, Seller shall cure all items which Seller
agreed to cure to Purchaser's reasonable satisfaction ("Cure Items") and
shall deliver the title in its existing condition with the Cure Items
having been cured and Purchaser shall, by acceptance of such title, waive
any objections to such title which have not been cured except as to any
uncured Cure Items and warranties contained in the documents of conveyance.
Notwithstanding the aforesaid, any and all title objections which are
monetary in nature in the form of debt secured by the Property under a
security instrument, and real estate taxes prorated between the Seller and
Purchaser, shall be paid and deducted at Closing from the Purchase Price.
Purchaser reserves the right to waive any and all title objections. Seller
covenants and agrees from and after the date hereof not to further affect,
encumber or restrict the title to the Property in any way. Purchaser shall
have the right to object to any additional and new matters of survey and
new title matters that appear in the public records of Richmond County,
Georgia or are brought to the attention of Purchaser subsequent to the date
of the Commitment and Survey up to the date of the Closing. In the event
there are new matters of survey and/or new matters of title subsequent to
the date of the Commitment and Survey, Purchaser shall have the right to
object thereto and Seller and Purchaser shall have the rights and remedies
as are herein provided in this paragraph 5.1.1, (including without
limitations, the right to terminate this Agreement and receive a refund of
the ▇▇▇▇▇▇▇ Money without reduction or further instruction or delay) except
that the Seller shall have the right to commence the cure within ten (10)
business days and complete the cure by the Closing Date.
For the purposes herein (but reserving all rights by Purchaser to
object to matters of title, including the items set forth in Exhibit "B",
and matters of Survey), the matters set forth in Exhibit "B" attached
hereto and incorporated herein by reference, shall be matters appearing as
"Permitted Exceptions."
5.2 For a period (the "Review Period") of forty-five (45) days
following the Effective Date, Purchaser and its agents, at Purchaser's sole
cost and expense, shall have the right to have performed any and all
inspections or studies of the Property which Purchaser may desire,
including but not limited to:
i) Physical inspections of the Property, unit by unit,
including structural, mechanical, life-safety, engineering, civil,
landscaping, paving, plumbing, electrical and all other detail inspections,
during normal business hours and so as not to interrupt tenants;
ii) Examination of all construction items, including as-built
architectural, civil, electrical, life-safety, mechanical and plumbing
plans and specifications, copies of any available construction reports,
whether internal or external, certificates of completion from the project
architect and inspecting architect, certificates of occupancy, building
permits, evidence of compliance with fire code, building code and other
governmental or regulatory code requirements and all other related use
permits to the extent the same are in Seller's possession;
iii) Examination of all operating statements and supporting
documentation from initial opening of the Property, reflecting all detailed
rental income, operating expense accounts, and the maintenance log
maintained for the Property in Seller's possession;
iv) All documentation maintained in current tenant files,
including leases, security deposit information, credit reviews, and the
like in Seller's possession;
v) An environmental report prepared by a qualified
engineering firm hired by Purchaser; and
vi) Such other review and inspection as Purchaser reasonably
deems necessary.
Seller shall provide access to the Property and copies of or access
to all records noted above or hereafter requested, to Purchaser and
Purchaser's agent(s) during normal business hours. Seller and Purchaser
agree the disclosure requirements contained in the immediately preceding
sentence shall be met and complied with by Seller upon the Seller making
available and providing to Purchaser all of Seller's records dealing with
and concerning the Property. Seller shall in good faith cooperate with
Purchaser and Purchaser's agent(s) during Purchaser's reviews and
inspections, and Seller shall disclose to Purchaser prior to expiration of
the Review Period all physical and financial aspects of the Property of
which Seller has knowledge. Purchaser shall have the right, at its sole
cost and expense, to make and retain copies of any document or item
reviewed by Purchaser during its inspection. If Purchaser terminates this
Agreement for any reason, Purchaser shall return all such copies to Seller.
On or before ten (10) days after commencement of the Review Period, Seller
shall send to Purchaser a notice setting forth all service contracts (the
"Approved Service Contracts") at the Property. Seller agrees to grant
Purchaser reasonable access to the Property and the above-described
information for the purpose of making such inspections. Purchaser shall
indemnify and hold Seller harmless from any reasonable costs (including
reasonable attorneys' fees and court costs), expenses, claims, injuries,
accidents or damage to or on the Property or injury to any person caused by
Purchaser or Purchaser's inspecting agents during Purchaser's inspection or
as the result of Purchaser's inspection hereunder, excluding however, acts
of Seller or Seller's representatives and agents. All activities of
Purchaser during the Review Period shall be at Purchaser's sole expense.
With respect to inspecting individual apartment units, Purchaser shall give
Seller written notice of Purchaser's desire to inspect such units at least
one (1) day in advance of the inspection. The indemnity provision
contained herein shall survive this Agreement.
If Purchaser reasonably finds such inspections or studies to be
unsatisfactory, for any reason, or if Purchaser otherwise determines that
the Property is not suitable for its intended use thereof, in Purchaser's
reasonable discretion, Purchaser shall notify Seller in writing of any such
deficiency, whereby Seller shall have the right to cure such deficiency or
provide reasonable assurances to Purchaser that such deficiency shall be
cured by a date certain agreed to by Seller and Purchaser. If Seller
cannot or elects not to cure such deficiency, Purchaser shall have the
right, at its option, to terminate this Agreement by written notice on or
prior to the expiration of said Review Period, and upon such termination
$25,000.00 of the ▇▇▇▇▇▇▇ Money (except as otherwise provided in Article II
Section 2.2 of this Agreement) previously deposited shall be immediately
refunded to Purchaser, with the remaining $25,000.00 of the ▇▇▇▇▇▇▇ Money
being paid to Seller, and the parties hereto shall have no further
liabilities one to the other. By Purchaser delivering a statement to
Seller and to the Title Company stating "the Agreement is terminated
pursuant to Section 5.2 thereof" on or before the expiration of the Review
Period, Seller hereby directs and authorizes the Title Company, and the
Title Company shall immediately return $25,000.00 of the ▇▇▇▇▇▇▇ Money
(except as otherwise provided in Article II Section 2.2 of this Agreement)
to Purchaser without further inquiry of any sort whatsoever in regard to
the Seller, any broker or any other party in connection with this
Agreement, with the remaining $25,000.00 of the ▇▇▇▇▇▇▇ Money being paid to
Seller, and without requiring the execution of any further release or
consent by any party whatsoever. If Purchaser shall not have terminated
this Agreement on or before the expiration of the Review Period then
Purchaser shall be deemed to have waived its rights to terminate pursuant
to this Section 5.2.
Notwithstanding anything contained herein, in the event the Purchaser
does give written notice to Seller of the termination of this Agreement
prior to the end of the Review Period, Twenty-Five Thousand and No/100
Dollars ($25,000.00) of the ▇▇▇▇▇▇▇ Money shall be paid Seller except as
otherwise provided in Article II, Paragraph 2.2 of this Agreement.
Notwithstanding anything contained herein, in the event Purchaser has not
given Seller written notice of termination of this Agreement prior to the
end of the Review Period, then in that event the ▇▇▇▇▇▇▇ Money shall be
non-refundable (except as otherwise provided in Article II Section 2.2 of
this Agreement), provided, however, the Purchaser shall be entitled to a
refund of the ▇▇▇▇▇▇▇ Money, in the event the Seller fails to perform its
duties and obligations hereunder.
VI.
REPRESENTATIONS, WARRANTIES AND COVENANTS OF SELLER
6.1 Representations and Warranties of Seller. Seller makes the
following representations and warranties, which shall be true and correct
in all material respects as of the Closing Date, but shall not survive the
Closing:
6.1.1 Seller has no notice of existing or pending litigation,
claims, condemnations or sales in lieu thereof, with respect to any aspect
of the Property nor have any such actions, suits, proceedings or claims
been threatened or asserted;
6.1.2 Seller is neither a "foreign" person nor a "foreign
corporation" as those terms are defined in Section 7701 of the Internal
Revenue Service.
6.1.3 There are no attachments, executions, assignments for
the benefit of creditors or voluntary or, to Seller's knowledge,
involuntary proceedings in bankruptcy pending against or contemplated by
Seller, and to the knowledge of Seller, no such actions have been
threatened against it;
6.1.4 Neither the execution and delivery of this Agreement
by Seller nor Seller's performance of its obligations hereunder will result
in a violation or breach of any term or provision or constitute a default
or accelerate the performance required under any other agreement or
document to which Seller is a party or is otherwise bound and will not
constitute a violation of any law, ruling, regulation, or order to which
Seller is subject;
6.1.5 No person, firm or corporation or other entity has
any right or option to acquire the Property, or any part thereof, from
Seller;
6.1.6 Seller has no knowledge of and based upon that
certain environmental assessment dated July 28, 1993, prepared by Atlanta
Testing and Engineering ("Assessment"), the Project does not contain any
hazardous substances other than as disclosed in the Assessment and except
for possible leakage and drippings of gasoline, petroleum products and anti
freeze from motor vehicles onto the parking and drive surfaces, and
cleaning solvents used by tenants and Seller;
6.1.7 To the knowledge of Seller, Seller is in compliance with
any applicable law that is applicable to the Property as of the date of
this Agreement;
6.1.8 As of the date of this Agreement, Seller has not received
any written notice and otherwise has no knowledge of any violation or
claimed violation of any applicable zoning, building, fire, health and
other codes, statutes, ordinances or laws affecting the Property.
6.1.9 Seller has full power and authority to execute this
Agreement and sell the Property as provided in this Agreement, subject to
Seller's limited partner's approval as provided for under Article 15
Section 15.16; and
6.1.10 As of the date of this Agreement and the Closing
Seller has not received any written notice and otherwise has no knowledge
of any violation or claimed violation of any permits and certification
requirements affecting the Property, which violations remain uncured as of
the Closing.
It is agreed that Seller will be transferring the Property at Closing
on an "AS IS, WHERE IS" basis.
PURCHASER ACKNOWLEDGES THAT THE CONVEYANCE OF THE PROJECT IS
SPECIFICALLY MADE "AS-IS", "WHERE-IS", "WITH ALL FAULTS", WITHOUT ANY
REPRESENTATIONS OR WARRANTIES EXPRESS OR IMPLIED (EXCEPT FOR ANY EXPRESS
REPRESENTATIONS AND WARRANTIES SET FORTH IN THIS AGREEMENT), INCLUDING,
WITHOUT LIMITATION, IMPLIED WARRANTIES OF FITNESS FOR ANY PARTICULAR
PURPOSE OR MERCHANTABILITY OR ANY OTHER WARRANTIES WHATSOEVER CONTAINED IN
OR CREATED BY THE OFFICIAL CODE OF GEORGIA OR OTHERWISE. PURCHASER HAS NOT
RELIED AND WILL NOT RELY ON, AND SELLER IS NOT LIABLE FOR OR BOUND BY, ANY
EXPRESS OR IMPLIED WARRANTIES, GUARANTIES, STATEMENTS, REPRESENTATIONS OR
INFORMATION PERTAINING TO THE PROJECT OR RELATING THERETO (INCLUDING
SPECIFICALLY, WITHOUT LIMITATION, PROJECT INFORMATION PACKAGES DISTRIBUTED
WITH RESPECT TO THE PROJECT) MADE OR FURNISHED BY SELLER, THE PROPERTY
MANAGER, OR ANY REAL ESTATE BROKER OR AGENT REPRESENTING OR PURPORTING TO
REPRESENT SELLER, TO WHOMEVER MADE OR GIVEN, DIRECTLY OR INDIRECTLY, ORALLY
OR IN WRITING, UNLESS SPECIFICALLY SET FORTH IN THIS AGREEMENT.
PURCHASER ACKNOWLEDGES THAT, EXCEPT AS EXPRESSLY PROVIDED IN THIS
AGREEMENT, NEITHER SELLER NOR ANY OF ITS AGENTS HAVE MADE, AND SPECIFICALLY
NEGATE AND DISCLAIM, ANY REPRESENTATIONS, WARRANTIES, PROMISES, COVENANTS,
AGREEMENTS OR GUARANTIES OF ANY KIND OR CHARACTER, WHATSOEVER, WHETHER
EXPRESS OR IMPLIED, ORAL OR WRITTEN, OF, AS TO, CONCERNING, OR WITH RESPECT
TO, (i) THE VALUE, NATURE, QUALITY OR CONDITION OF THE PROJECT, INCLUDING,
WITHOUT LIMITATION, THE WATER, SOIL AND GEOLOGY, (ii) THE SUITABILITY OF
THE PROJECT FOR ANY AND ALL ACTIVITIES AND USES WHICH MAY BE CONDUCTED
THEREON, (iii) THE COMPLIANCE OF OR BY THE PROJECT WITH ANY LAWS, RULES,
ORDINANCES OR REGULATIONS OF ANY APPLICABLE GOVERNMENTAL AUTHORITY, (iv)
THE HABITABILITY, MERCHANTABILITY, MARKETABILITY, PROFITABILITY OR FITNESS
FOR A PARTICULAR PURPOSE OF THE PROJECT, (v) TAX CONSEQUENCES, LATENT OR
PATENT PHYSICAL OR ENVIRONMENTAL CONDITION, UTILITIES, OPERATING HISTORY OR
PROJECTIONS OR VALUATION, (vi) THE TRUTH, ACCURACY OR COMPLETENESS OF ANY
DOCUMENTS CONCERNING THE PROJECT OR ANY OTHER INFORMATION PROVIDED BY OR ON
BEHALF OF SELLER TO PURCHASER, OR (vii) ANY OTHER MATTER WITH RESPECT TO
THE PROJECT, AND SPECIFICALLY, THAT SELLER NOR ANY OF ITS AGENTS HAVE MADE,
AND SPECIFICALLY NEGATE AND DISCLAIM, ANY REPRESENTATIONS OR WARRANTIES
REGARDING COMPLIANCE OF THE PROJECT WITH ANY ENVIRONMENTAL PROTECTION,
POLLUTION OR LAND USE LAWS, RULES, REGULATIONS, ORDERS OR REQUIREMENTS,
INCLUDING WITHOUT LIMITATION, THOSE PERTAINING TO SOLID WASTE, AS DEFINED
BY THE U.S. ENVIRONMENTAL PROTECTION AGENCY REGULATIONS AT 40 C.F.R. PART
261, OR THE DISPOSAL OR EXISTENCE, IN OR ON THE PROJECT, OF ANY HAZARDOUS
SUBSTANCES, AS DEFINED BY THE COMPREHENSIVE ENVIRONMENTAL RESPONSE
COMPENSATION AND LIABILITY ACT OF 1980, AS AMENDED, AND THE REGULATIONS
PROMULGATED THEREUNDER, THE RESOURCES CONSERVATION AND RECOVERY ACT OF 1976
(42 U.S.C. SECTION 6901, ET SEC.), THE CLEAN WATER ACT (33 U.S.C. SECTION
1251 ET SEC.), THE SAFE DRINKING WATER ACT (14 U.S.C. SECTION 1401, ET
SEC.), THE HAZARDOUS MATERIALS TRANSPORTATION ACT (49 U.S.C. SECTION 1801,
ET SEC.), AND THE TOXIC SUBSTANCE CONTROL ACT (15 U.S.C. SECTION 2601, ET
SEC.) (COLLECTIVELY, "HAZARDOUS SUBSTANCE LAWS").
PURCHASER REPRESENTS TO SELLER THAT PURCHASER HAS CONDUCTED, OR WILL
CONDUCT PRIOR TO CLOSING, SUCH INVESTIGATIONS OF THE PROJECT, INCLUDING BUT
NOT LIMITED TO, THE PHYSICAL AND ENVIRONMENTAL CONDITIONS THEREOF, AS
PURCHASER DEEMS NECESSARY TO SATISFY ITSELF AS TO THE CONDITION OF THE
PROJECT AND THE EXISTENCE OR NONEXISTENCE OR CURATIVE ACTION TO BE TAKEN
WITH RESPECT TO ANY HAZARDOUS OR TOXIC SUBSTANCES ON OR DISCHARGED FROM THE
PROJECT, AND WILL RELY SOLELY UPON SAME AND NOT UPON ANY INFORMATION
PROVIDED BY OR ON BEHALF OF SELLER OR ITS AGENTS OR EMPLOYEES WITH RESPECT
THERETO, OTHER THAN SUCH REPRESENTATIONS, WARRANTIES AND COVENANTS OF
SELLER AS ARE EXPRESSLY SET FORTH IN THIS AGREEMENT. UPON CLOSING,
PURCHASER SHALL ASSUME THE RISK THAT ADVERSE MATTERS, INCLUDING BUT NOT
LIMITED TO, CONSTRUCTION DEFECTS AND ADVERSE PHYSICAL AND ENVIRONMENTAL
CONDITIONS, MAY NOT HAVE BEEN REVEALED BY PURCHASER'S INVESTIGATIONS.
Seller's representations and warranties shall survive the Closing for
a period of six (6) months from the Closing and such survival shall be
provided for in the Real Estate Acquisition Closing Statement.
6.2 Covenants of Seller. Seller hereby covenants as follows:
6.2.1 From and after the date hereof, and until the Closing or
earlier termination of this Agreement, Seller shall not sell, assign or
create any right, title or interest whatsoever in or to the Property or
create or permit to exist any lien, security interests, encumbrance or
charge thereon, other than liens, security interests, or encumbrances
either noted in the Commitment or those which shall be released at Closing.
6.2.2 From and after the date hereof, and until the Closing or
earlier termination of this Agreement, Seller shall not take any action, or
omit to take any action, which action or omission would have the effect of
violating any of the representations and warranties of Seller contained in
this Agreement.
6.2.3 During the term of this Agreement, and after the date
hereof, Seller shall use all reasonable efforts to provide Purchaser, or
its authorized agents, reasonable access to the Property in order to
prepare for an orderly transition of management thereof.
6.2.4 Seller shall operate the Property until Closing in the
ordinary course of business, maintain all insurance coverage that it
customarily carried, will maintain the Property in a first class condition
and repair following normal maintenance procedure and will not assign any
rents, profits, leases that affect the Property.
6.2.5 Seller shall advise Purchaser of any changes or breaches
of the representations and warranties during the term of this Agreement and
any fact(s) that Seller becomes aware of that Seller reasonably believes
could or would cause the representations and warranties or any of them to
become false.
6.2.6 Seller, during the terms of this Agreement shall only
enter into leases with new tenants of the Project using the form Lease
Agreement currently used by Seller, with a term of not more than one (1)
year and at the present rental rates being charged by Seller to its new
tenants; and Seller, during the terms of this Agreement, shall only enter
into service or maintenance contracts which may be terminated and canceled
by either party thereto upon thirty (30) days written notice.
VII.
REPRESENTATIONS AND WARRANTIES OF PURCHASER
7.1 Purchaser makes the following representations and warranties,
which shall be true and correct in all material respects as of the Closing
Date:
7.1.1 Purchaser has the power and authority to enter into this
Agreement and fulfill Purchaser's obligations and duties hereunder.
7.1.2 There are no attachments, executions, assignments for the
benefit of creditors or voluntary or, to Purchaser's knowledge, involuntary
proceedings in bankruptcy pending against or contemplated by Purchaser, and
to the knowledge of Purchaser, no such actions have been threatened against
it.
7.1.3 Neither the execution and delivery of this Agreement by
Purchaser nor Purchaser's performance of its obligations hereunder will
result in a violation or breach of any term or provision or constitute a
default or accelerate the performance required under any other agreement or
document to which Purchaser is a party or is otherwise bound and will not
constitute a violating of any law, ruling, regulation, or order to which
Purchaser is subject.
VIII.
POSSESSION
8.1 Purchaser shall be entitled to full possession of the Property
at Closing, subject only to Tenant Leases and the Permitted Exceptions and
Approved Service Contracts.
IX.
PRORATIONS AND ADJUSTMENTS
9.1 Collected rents, operating expenses, ad valorem taxes on the
property for the current year, charges under the Approved Service Contracts
and utility charges shall be prorated at the Closing, effective as of the
Closing Date, utilizing the best available computations of such terms. If
current ad valorem tax assessments are unavailable at Closing, said ad
valorem taxes shall be adjusted based upon the taxes paid in the tax year
1997; provided further, all special tax assessments made by any taxing
authority with respect to the Project prior to Closing shall be the sole
responsibility of Seller and shall be paid by Seller at Closing unless
payable (or may be payable) in installments, in which case such installment
payments shall be prorated in the same manner as any other operating
expense. All special tax assessments made by any taxing authority with
respect to the Project subsequent to Closing shall be the sole
responsibility of Purchaser. All such prorations shall be subject to
readjustment in the event it is determined that any prorated item may not
have been prorated correctly and in connection therewith Seller and
Purchaser shall each execute at Closing a copy of the Proration Adjustment
Letters. Purchaser shall receive a credit against the Purchase Price for
all tenant security deposits and prepaid rents in Seller's possession that
are not yet forfeited. Purchaser shall assume responsibility for such
deposits for which Purchaser received a credit against the Purchase Price,
and shall determine the amount of such deposits to refund, and any balance
not refunded shall be retained by Purchaser. Any or all utility deposits
on deposit with utility companies will be retained by the Seller.
With respect to rents which at Closing are thirty (30) days or more
past due ("Delinquent Rents"), Seller shall have no right to initiate any
type of collection proceeding to collect those Delinquent Rents from
tenants of the Property, however such Delinquent Rents shall remain the
property of the Seller and shall be assigned by the Purchaser to Seller at
Closing. If, following the Closing, Purchaser shall receive a rent payment
from a tenant owing Delinquent Rents, then, if such tenant is current in
its obligations under its lease, such rent payment (or the portion thereof
that is attributable to Seller's period of ownership) shall be remitted to
Seller by Purchaser promptly after receipt by Purchaser. Purchaser hereby
agrees to use diligent efforts to collect the Delinquent Rents due and
owing to Seller.
9.2 Seller and Purchaser agree as follows with respect to leasing
fees, leasing commissions, location fees or similar charges payable to any
person or entity in regard to the Property:
9.2.1 As such fees are applicable to any lease(s) under which a
unit(s) was occupied prior to or as of the Closing, Seller shall be totally
responsible for such fees as of the Closing, shall pay such fees and shall
indemnify and hold harmless Purchaser against all losses, including court
costs and attorney fees, arising out of any claims or causes of action for
the non-payment of such fees;
9.2.2 As such fees are applicable to any lease(s) under which a
unit(s) is occupied as of the Closing or after the Closing, Purchaser shall
be totally responsible for all such fees. Purchaser shall indemnify and
hold harmless Seller against all losses, including court costs and attorney
fees, arising out of any claims or causes of action for the non-payment of
such fees by Purchaser; and
9.2.3 Paragraphs 9.2.1, 9.2.2 and 9.2.3 of this section 9.2
shall survive the Closing and the execution and delivery of the limited
warranty deed for a period of six (6) months from the date of Closing.
X.
COMMISSIONS
10.1 Seller shall be solely responsible for the payment of any and
all real estate commissions, claims for such commissions and/or similar
type fees arising, directly or indirectly, out of this transaction. Seller
does hereby agree to indemnify Purchaser against and hold Purchaser
harmless from any and all real estate commissions, claims for such
commissions or similar fees, including attorneys' fees incurred in any
lawsuit regarding such commissions or fees except those arising by, through
or under Purchaser. Purchaser does hereby agree to indemnify Seller
against and hold Seller harmless from any and all real estate commissions,
claims for such commissions or similar commissions or fees arising by,
through or under Purchaser, other than Broker. In connection therewith,
Purchaser and Seller hereby represent and warrant to each other that
neither such party, their officers, employees and agents, have contracted
for any such real estate commissions, nor have they, without knowledge of
the other, contacted real estate agents or brokers, other than the Broker,
nor have they, without the other's knowledge, acted in a manner so as to
give rise to a claim for such real estate commissions or similar fees. In
connection herewith, Seller hereby represents that Seller has dealt only
with CB Commercial Real Estate Group, Inc. ("Broker") and that any real
estate commission due hereunder shall be paid by Seller pursuant to a
separate agreement. Broker acknowledges and agrees no commission is earned
and due and payable by Seller to Broker unless and until the Closing takes
place and the Purchase Price is paid in full to Seller by Purchaser and
only then is Broker entitled to a commission pursuant to the separate
agreement between Seller and Broker.
XI.
FURTHER INSTRUMENTS
11.1 Seller will, whenever and as often as it shall be reasonably
requested so to do by Purchaser, and Purchaser will, whenever and as often
as it shall be reasonably requested so to do by Seller, execute,
acknowledge and deliver, or cause to be executed, acknowledged and
delivered, any and all conveyances, assignment and all other instruments
and documents as may be reasonably necessary in order to complete the
transaction herein provided and to carry out the intent and purposes of
this Agreement.
XII.
TERMINATION AND REMEDIES
12.1 In the event that any of the Seller's representations or
warranties contained herein are untrue in any respect or if Seller shall
have failed to have performed any of the covenants and/or agreements
contained herein which are to be performed by Seller, or if Seller is in
default in any way under this Agreement, Purchaser may, at its option,
either (i) terminate this Agreement by giving written notice of termination
to Seller and receive a refund of the ▇▇▇▇▇▇▇ Money previously deposited;
or (ii) Purchaser may seek specific performance of this Agreement for
Seller's voluntary and intentional acts; however Purchaser shall have no
rights or remedies for damages hereunder, Purchaser specifically waiving
the remedies of damages except as hereinafter provided. In the event that
the remedy of specific performance is unavailable for Seller's voluntary
and intentional actions, then in that event and notwithstanding the
immediate preceding sentence, Purchaser shall have the remedy at law for
actual damages (excluding all other type damages) up to but not to exceed
Twenty Five Thousand and No/100 Dollars ($25,000.00). If any condition
precedent to Purchaser's obligations shall fail to occur, Purchaser may
terminate this Agreement and receive a refund of the ▇▇▇▇▇▇▇ Money (except
as otherwise provided in Article II Section 2.2 of this Agreement)
previously deposited or waive such failed condition precedent. It is
expressly understood and agreed by Seller and Purchaser that the failure by
Purchaser to terminate this Agreement for any reason pursuant to this
Section 12.1 shall in no way waive, alter or modify any rights of Purchaser
in regard to the representations, warranties, covenants and agreements of
Seller herein, except to the extent of representations and warranties, the
breach of which is known to Purchaser at the time of Closing.
12.2 If this Agreement is properly and timely terminated by
Purchaser during the Review Period, Purchaser shall be entitled to the
immediate refund of any and all ▇▇▇▇▇▇▇ Money previously deposited, and
thereafter Seller and Purchaser shall have no further obligation or
liabilities one to the other hereunder.
12.3 If the Purchaser has not terminated this Agreement in a timely
and proper manner pursuant to any of the provisions authorizing such
termination, and Purchaser fails to close the transaction contemplated
hereby, Seller shall be entitled to terminate this Agreement and to receive
the ▇▇▇▇▇▇▇ Money for such failure of Purchaser to fulfill its obligation
hereunder as liquidated damages pursuant to O.C.G.A. section 13-6-7 and not
as a penalty. The parties hereby agree as to the difficulty of
ascertaining the damage suffered by Seller and that the ▇▇▇▇▇▇▇ Money
represents a fair estimate of liquidated damages to Seller.
XIII.
RISK OF LOSS
13.1 Risk of loss until the Closing shall be borne by Seller. In
the event that damage, loss or destruction of the Property or any part
thereof, in an amount equal to $150,000.00 or more, by fire or other
casualty, or through condemnation or sale in lieu thereof, occurs prior to
the actual closing of the transactions contemplated hereby, the Purchaser
shall, at its option, elect one of the following:
13.1.1 To terminate this Agreement and receive an
immediate refund of the amount of the ▇▇▇▇▇▇▇ Money previously deposited.
13.1.2 To close the transaction contemplated hereby and
take an assignment of all insurance or condemnation proceeds payable as a
result of such casualty loss or condemnation, and receive a credit against
the Purchase Price due at Closing in the amount of any deductible
applicable to such insurance coverage, if any, or if such proceeds are not
made available by the holder or holders of any indebtedness secured by
liens against the Property, to receive a credit against the Purchase Price
in the amount of such casualty loss or condemnation proceeds together with
any deductible amount applicable thereto. If the Purchaser elects to
proceed under this Section 13.1.2, then Purchaser, together with Seller,
shall have the right to settle any claim with the applicable insurance
company or condemning authority. Other than receiving a credit against the
Purchase Price due at Closing as provided in this Section 13.1.2, there
shall be no reduction in the Purchase Price by reason of such damage or
condemnation.
13.2 In the event that the damage, loss or destruction shall be in
an amount of less than $150,000.00 and if the damages loss or destruction
(other than a condemnation) is insured against by a carrier who will honor
the assignment rights granted to Purchaser herein, the Purchaser shall be
required to elect option 13.1.2 above.
XIV.
NOTICES
14.1 Any notice, request, demand, instruction or other communication
to be given to either party hereunder except those required to be delivered
at Closing, shall be in writing, and shall be deemed to be given upon
receipt, if hand delivered or delivered by express delivery service, or
three (3) days after deposit of such notice in registered or certified mail
return receipt requested (except as to notices of termination which shall
be deemed delivered upon deposit in registered or certified mail, return
receipt requested so long as Purchaser sends a copy by fax or hand delivery
within twenty-four [24] hours), addressed as follows:
IF TO SELLER: COPY TO:
▇▇. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇., Esq.
Executive Vice President ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇, L.L.C.
Amli Residential Properties, L.P. Suite 700, Overlook I
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
TO PURCHASER: COPY TO:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, President ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
The ▇▇▇▇▇▇▇▇▇ Group, Inc. ▇▇▇▇▇▇▇ and ▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ One Midtown Plaza
Suite 320 ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.,
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
____________________ ________________________
14.2 The addresses and addressees for the purpose of this article
may be changed by either party by giving notice of such change to the other
party in the manner provided herein for giving notice. For the purpose of
changing such addresses or addressees only, unless and until such written
notice is received, the last address and addressee stated herein shall be
deemed to continue in effect for all purposes.
XV.
MISCELLANEOUS
15.1 Entire Agreement. This Agreement and the exhibits attached
hereto contain the entire agreement between the parties, and no promise,
representation, warranty or covenant not included in this Agreement or any
such referenced agreements has been or is relied upon by either party.
This Agreement shall supersede and replace in its entirety that certain
letter of intent (the "Letter of Intent") from the Purchaser dated February
13, 1998, which Letter of Intent, and all provisions thereof, hereby being
declared null and void and without further force or effect.
15.2 Reliance. Neither party has made any representations,
warranties or covenants to the other concerning any tax benefits or tax
treatment in connection with the transactions contemplated hereby. Each
party has relied upon its own examination of the full Agreement and the
provisions thereof, and the counsel of its own advisors, and the
warranties, representations and covenants expressly contained in this
Agreement itself.
15.3 No Oral Modification. No modification or amendment of this
Agreement shall be of any force or affect unless made in writing and
executed by both Purchaser and Seller.
15.4 Choice of Law and Venue. In the event that any litigation
arises hereunder, it is specifically stipulated that this Agreement shall
be interpreted and construed according to the laws of the State of Georgia,
and shall be performable in ▇▇▇▇▇▇ County, Georgia.
15.5 Time of Essence. Time is of the essence in this Agreement.
15.6 Attorneys' Fees. The prevailing party in any litigation
between the parties arising under this Agreement shall be entitled to
recover reasonable attorneys, fees.
15.7 Counterparts/Captions. This Agreement may be executed in any
number of counterparts which together shall constitute the agreement of the
parties. The article headings and captions herein contained are for
purposes of identification only and shall not be considered in construing
this Agreement.
15.8 Assignment. This Agreement and the rights and obligations
hereunder, may be assigned by Purchaser at any time to an entity (a
"Permitted Assignee") which is owned by Purchaser, owns or is under common
ownership with Purchaser or a related entity of Purchaser, or is an entity
which Purchaser manages or controls. In the event of any such Permitted
Assignment (herein so called), the original party designated as the
Purchaser shall be released from all duties or obligations hereunder
(except to the extent of its interest in the ▇▇▇▇▇▇▇ money which is and
shall remain subject to the terms of this Agreement) and the Seller agrees
to close the transaction contemplated hereunder with the Permitted Assignee
of Purchaser.
15.9 Date of Agreement. All references in this Agreement to "the
date hereof" or similar references shall be deemed to refer to the last
date, in point of time, on which all parties hereto have executed and
received via hand delivery or facsimile a fully executed copy of this
Agreement ("Effective Date").
15.10 Parties Bound. This Agreement and the terms and provisions
hereof shall inure to the benefit of and be binding upon the parties hereto
and their respective heirs, executors, personal representatives, successors
and assigns whenever the context so requires or admits.
15.11 Enforceability. If any provisions of this Agreement are held
to be illegal, invalid or unenforceable under present or future laws, such
provisions shall be fully severable, and this Agreement shall be construed
and enforced as if such illegal, invalid or unenforceable provisions had
never comprised a part of this Agreement, and the remaining provisions of
this Agreement shall remain in full force and effect and not be affected by
the illegal, invalid or unenforceable provision or by its severance from
this Agreement, provided that both parties hereto may still effectively
realize the complete benefit of the transaction contemplated hereby.
15.12 Gender; Number. Any references to one gender used herein,
whether masculine, feminine or neuter, shall be deemed to be a reference to
any other gender as may be appropriate under the circumstances; further,
the singular shall include the plural and the plural the singular.
15.13 Construction. The parties hereby acknowledge that the parties
and their respective counsel each reviewed and revised this Agreement, and
that the normal rule of construction to the effect that any ambiguities are
to be resolved against the drafting party shall not be employed in the
interpretation of this Agreement or any amendments or exhibits hereto.
15.14 Business Days. Whenever any determination is to be made or
action to be taken on a date specified in this Agreement, if such date
shall fall upon a Saturday, Sunday or holiday observed by federally insured
banks in the State of Georgia or the United States Postal Service, the date
for such determination or action shall be extended to the first business
day immediately thereafter.
15.15 Reporting Person. Purchaser and Seller hereby designate the
Title Company as the reporting person pursuant to the provisions of Section
6045(e) of the Internal Revenue Code, as amended.
15.16 Tax Deferred 1031 Exchange. Seller agrees that in the event
the Purchaser desires and requests the Seller in writing, Seller shall
participate with Purchaser in a tax deferred exchange pursuant to Section
1031 of the Internal Revenue Code, as amended, provided that such tax
deferred exchange shall be at the total expense of the Purchaser, including
all costs and expenses and attorneys fees that may be incurred by Seller,
that such tax deferred exchange shall in no way affect the terms and
conditions of this Agreement and the covenants, conditions and obligations
of the Seller and Purchaser under this Agreement, and that ample written
notice of Purchaser's desire to consummate a tax deferred exchange is
communicated to the Seller in order that such an exchange can be
consummated.
15.17 Condition Precedent of Seller. Seller's obligations to
perform under this Agreement is conditional upon Seller obtaining the prior
written approval of the terms of this Agreement and the consent to
consummate the sale of the Project to the Purchaser from Seller's limited
partner. In the event Seller is unable to obtain the aforesaid prior
written approval and consent from Seller's limited partner within fifteen
(15) days of the Effective Date of this Agreement, Seller shall have the
right to terminate this Agreement and in such event the parties hereto
shall have no further duties or obligations hereunder to each other, except
the indemnity provision as contained in Article V, Section 5.2 hereof shall
survive such termination, and the ▇▇▇▇▇▇▇ Money shall be returned to
Purchaser without reduction or any further instruction or delay. Seller
shall advise Purchaser of receipt of the aforesaid consent on or before
__________________, 1998.
EXECUTED by Seller this 9th day of March, 1998.
SELLER:
LINCAM PROPERTIES LTD. SERIES 85,
an Illinois limited partnership
By: LincAm Properties, Inc.,
a Delaware corporation,
its managing general partner
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
(CORPORATE SEAL)
[SIGNATURES CONTINUED ON FOLLOWING PAGE]
EXECUTED by Purchaser this 9th day of March, 1998.
PURCHASER:
THE ▇▇▇▇▇▇▇▇▇ GROUP, INC.
By: __________________________________
Title: _______________________________
(CORPORATE SEAL)
[SIGNATURES CONTINUED ON FOLLOWING PAGE]
The Broker joins herein for the purpose of acknowledging and agreeing
to the terms herein contained.
EXECUTED by Broker this 12th day of March, 1998.
CB COMMERCIAL REAL ESTATE
GROUP, INC.
By: __________________________________
Title: _______________________________
(CORPORATE SEAL)
EXHIBIT "A"
ALL that tract or parcel of land with all improvements thereon situate,
lying and being in the State of Georgia, County of Richmond, 121 G.M.D.,
containing 18.67 acres as shown on an as-built survey of Oakview Place
dated June 2, 1986, revised September 15, 1986, prepared by ▇▇▇▇▇ ▇. ▇▇▇▇▇
& Associates, consulting engineers, and certified to by ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇,
Ga. R.L.S. #2258, recorded in the Office of the Clerk of Superior Court of
Richmond County, Georgia in Realty Reel 240 at page 1106, which plat is by
reference incorporated herein for a more complete description as to the
metes, bounds, courses and location of the property.
EXHIBIT "B"
. 1998 and subsequent years Real Estate Taxes and Assessments.
. All easements, restrictions and right-of-way of record which affect
the Property.
. All matters that would be disclosed by a current and accurate survey
of the Property.
. All zoning and land use laws.
. Rights of Tenants in Possession.