AGREEMENT OF SALE
THIS AGREEMENT, entered into as of the 28th day of January, 1997, by and
between WATERTON ASSOCIATES, LLC, a limited liability company ("Purchaser") and
COURTYARDS OF XXXXXXX LIMITED PARTNERSHIP, an Illinois Limited Partnership
("Seller").
WITNESSETH:
1. PURCHASE AND SALE. Purchaser agrees to purchase and Seller agrees to
sell at the price of Eleven Million Three Hundred Thousand and No/100 Dollars
($11,300,000.00) ("Purchase Price"), that certain property in Miami, Dade
County, Florida, more particularly described on Exhibit A attached hereto,
which Property is known as Courtyards of Kendall Apartments, together with all
fixtures, easements, permits, development rights, air rights, leases,
construction warranties (if any), service and maintenance contracts and
appurtenances thereto and improvements thereon (the "Real Property"). Included
in the Purchase Price is all of the tangible personal property which is owned
by Seller and is located at the Real Property, including without limitation,
all of the personal property set forth on Exhibit B (the "Personal Property"),
which shall be transferred to Purchaser at Closing (as hereinafter defined) by
a Xxxx of Sale as hereinafter provided. The computer hardware and software are
not included in this sale. The Real Property and the Personal Property are
hereinafter collectively referred to as the "Property".
2. PURCHASE PRICE. The Purchase Price shall be paid as follows:
a. Upon the execution of this Agreement, the sum of $50,000.00
("Xxxxxxx Money") to be held in escrow by the Escrow Agent (as that term is
defined in the Escrow Agreement), by and in accordance with the provisions of
the Escrow Agreement ("Escrow Agreement") attached hereto as Exhibit C;
b. On or before January 31, 1997 the sum of $100,000.00 as
additional Xxxxxxx Money to be deposited in escrow by and in accordance with
the Escrow Agreement (the Xxxxxxx Money and the additional Xxxxxxx Money shall
henceforth collectively be referred to as the Xxxxxxx Money);
c. On the Closing Date (as hereinafter defined), $11,300,000.00
(inclusive of all Xxxxxxx Money) adjusted in accordance with the prorations by
federally wired "immediately available" funds delivered to the Title Insurer
(as hereinafter defined) no later than 12:00 Noon Central Time on the Closing
Date. If the funds are not received by 12:00 Noon Central Time, then, on the
Closing Date, Purchaser shall pay Seller an amount equal to any additional
mortgage per diem interest costs incurred by the Seller.
3. TITLE COMMITMENT AND SURVEY.
a. Attached hereto as Exhibit D is a title commitment dated
December 22, 1996 ("Title Commitment") for an owner's standard coverage title
insurance policy ("Title Policy") issued by Chicago Title Insurance Company
("Title Insurer"). The owner's Title Policy issued at Closing will be in the
amount of the Purchase Price subject only to real estate taxes not yet due and
payable and the special title exceptions set forth in Schedule B-Section 2,
Numbers 2f and 5 through 11 inclusive of the Title Commitment. All of the
above are herein referred to as the "Permitted Exceptions". Seller agrees that
on or prior to the Closing, it shall have complied with all of the requirements
of the Seller in the Title Commitment in order to enable the Title Insurer to
delete those requirements from the Owner's Title Policy. On the Closing Date,
Seller shall cause the Title Insurer to issue the Title Policy or a "marked up"
commitment in conformity with the Title Commitment and a simultaneous issue of
a mortgage title policy for an additional premium of $200.00. Purchaser shall
pay the costs of the Title Policy, including "extended coverage" and any
special endorsements which Purchaser requires. The title insurance premiums
shall not exceed the minimum promulgated rate established for the Title Insurer
under Florida law.
b. Purchaser acknowledges receipt of a survey ("Survey") of the
Property prepared by C.C.L. Consultants, Inc. revised as of April 23, 1996 and
Purchaser approves all of the matters set forth on the Survey. If Purchaser
requires an updated Survey, Purchaser shall order same within ten (10) days
after the execution of this Agreement. Purchaser shall confirm the cost
thereof prior to ordering same. Purchaser and Seller shall equally share the
cost of the updated Survey. However, if Purchaser requires any additional
survey work, Purchaser shall pay for the cost of such additional work. If the
updated Survey discloses matters which are not reflected on the original Survey
and such matters are encroachments over utility easements or setback lines or
violations of front, rear or sideyard setbacks or are otherwise material
("Survey Defects"), then Purchaser can elect to terminate this Agreement upon
notice delivered to Seller by Purchaser within five (5) days after Purchaser's
receipt of the updated Survey. If Purchaser fails to make the election within
the aforesaid five (5) days, then it shall be conclusively presumed that
Purchaser has elected to take title to the Property subject to the Survey
Defects. If Purchaser elects to terminate this Agreement pursuant to this
Paragraph, then the Xxxxxxx Money plus all accrued interest shall be delivered
to Purchaser.
4. CONDITION OF TITLE/CONVEYANCE. At Closing, Seller agrees to convey
fee simple title to the Property by Special Warranty Deed ("Deed") and by those
other documents set forth in Paragraph b herein subject only to the Permitted
Exceptions. If Seller is unable to convey title to the Property subject only
to the Permitted Exceptions because of the existence of an additional title
exception ("Unpermitted Exception"), then Purchaser can elect to take title to
the Property subject to the Unpermitted Exception or terminate this Agreement.
If Purchaser elects to terminate this Agreement, then the Xxxxxxx Money plus
all accrued interest shall be delivered to the Purchaser. Notwithstanding the
foregoing, Seller shall be obligated to satisfy mortgages, real estate taxes
and assessments (subject to Paragraph a) and judgments against Seller and
satisfy or obtain a title indemnity over other liens (collectively, the
"Liens") secured by or affecting the Property which can be satisifed by payment
of liquidated amounts which Liens shall not be reflected on the Title Policy.
As of the Closing, if there are any Liens or any other encumbrances which
Seller must pay or discharge in order to convey to Purchaser such title as
herein provided to be conveyed, Seller may use a portion of the Purchase Price
to satisfy the same.
5. PAYMENT OF CLOSING COSTS. Seller shall pay the costs of the
documentary stamps and surtax imposed with reference to the Deed. Purchaser
and Seller shall equally share the recording costs. Purchaser shall pay all
costs with reference to any loan Purchaser obtains, including recording costs
and any intangible tax and documentary stamps with reference to any mortgage.
6. DAMAGE, CASUALTY AND CONDEMNATION.
a. If the Property suffers damage as a result of any casualty prior
to the Closing Date and can be repaired or restored in the case of real
property for $200,000 or less, or in the case of Personal Property, for $10,000
or less, then Seller shall commence the repair or restoration in an expeditious
manner, in which event the Closing Date will be extended until such date as may
reasonably be required to complete the repair or restoration. Seller shall
retain all insurance proceeds. If the cost of repair or restoration exceeds
that amount, then either party may elect to terminate this Agreement by notice
to the other party within fifteen (15) days after receipt of written notice of
the casualty. If neither party elects to terminate, then Purchaser shall elect
within five (5) days following the expiration of the aforesaid fifteen (15) day
period to either (i) require Seller to repair and restore same, in which event
the Closing Date will be extended until such date as may be reasonably required
to complete the repair and restoration (but in no event shall the Closing be
extended for more than sixty (60) days) or (ii) accept the Property in the
damaged condition together with an assignment from Seller of the insurance
proceeds and receive a credit at Closing in the amount of the deductible with
respect to any such casualty. Notwithstanding anything to the contrary
contained herein, in the event that Purchaser is obtaining financing with
respect to the purchase of the Property and the commitment for such financing
expires during any restoration of the Property by Seller, then Purchaser shall
have the right, within five (5) days following the expiration of such
commitment, to terminate this Agreement.
b. If condemnation proceedings ("Proceedings") are instituted
against the Property, then Purchaser can elect to either take the Property
subject to the Proceedings and an assignment of Seller's interest in the
Proceedings or terminate this Agreement. If Purchaser elects to terminate this
Agreement, it shall be by notice to the Seller within five (5) days after
Seller notifies Purchaser in writing of the Proceedings.
c. If the Agreement is terminated pursuant to this Paragraph, then
the Xxxxxxx Money plus all accrued interest shall be delivered to the
Purchaser.
7. AS-IS CONDITION.
a. Purchaser acknowledges and agrees that it will be purchasing the
Property based solely upon its inspection and investigations of the Property
and that Purchaser will be purchasing the Property "AS IS" and "WITH ALL
FAULTS" based upon the condition of the Property as of the date of this
Agreement, subject to reasonable wear and tear and loss by fire or other
casualty or condemnation from the date of this Agreement until the Closing
Date. 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 other
representations or warranties of any kind upon which Purchaser is relying as to
any matters concerning the Property, including, but not limited to, the
condition of the land or any improvements, the existence or nonexistence of
asbestos, lead in water, lead in paint, radon, underground or above ground
storage tanks, petroleum, toxic waste or any Hazardous Materials or Hazardous
Substances (as such terms are defined below), the tenants of the Property or
the leases affecting the Property, 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, environmental or building laws, rules or regulations
affecting the Property. Seller makes no representation that the Property
complies with Title III of the Americans With Disabilities Act or any fire
codes or building codes. Purchaser hereby releases Seller from any and all
liability in connection with any claims which Purchaser may have against
Seller, and Purchaser hereby agrees not to assert any claims, for damage, loss,
compensation, contribution, cost recovery or otherwise, against Seller, whether
in tort, contract, or otherwise, relating directly or indirectly to the
existence of asbestos or Hazardous Materials or Hazardous Substances on, or
environmental conditions of, the Property, or arising under the Environmental
Laws (as such term is hereinafter defined), or relating in any way to the
quality of the indoor or outdoor environment at the Property. This release
shall survive the Closing. As used herein, the term "Hazardous Materials" or
"Hazardous Substances" means (i) hazardous wastes, hazardous materials,
hazardous substances, hazardous constituents, toxic substances or related
materials, whether solids, liquids or gases, including but not limited to
substances defined as "hazardous wastes," "hazardous materials," "hazardous
substances," "toxic substances," "pollutants," "contaminants," "radioactive
materials," or other similar designations in, or otherwise subject to
regulation under, the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended ("CERCLA"), 42 U.S.C. Section 9601 et seq.;
the Toxic Substance Control Act ("TSCA"), 15 U.S.C. Section 2601 et seq.; the
Hazardous Materials Transportation Act, 49 U.S.C. Section 1802; the Emergency
Planning and Community Right-to-Know Act, 42 U.S.C. Section 1101 et seq.; the
Atomic Energy Act ("AEA"), 42 U.S.C. Section 2011 et seq.; the Resource
Conservation and Recovery Act ("RCRA"), 42 U.S.C. Section 9601, et seq.; the
Clean Water Act ("CWA"), 33 U.S.C. Section 1251 et seq.; the Safe Drinking
Water Act, 42 U.S.C. Section 300f et seq.; the Clean Air Act ("CAA"), 42 U.S.C.
Section 7401 et seq.; and in any permits, licenses, approvals, plans, rules,
regulations or ordinances adopted, or other criteria and guidelines promulgated
pursuant to the preceding laws or other similar federal, state or local laws,
regulations, rules or ordinance now or hereafter in effect relating to
environmental matters (collectively the "Environmental Laws"); and (ii) any
other substances, constituents or wastes subject to any applicable federal,
state or local law, regulation or ordinance, including any Environmental Law,
now or hereafter in effect, including but not limited to (A) petroleum,
(B) refined petroleum products, (C) waste oil, (D) waste aviation or motor
vehicle fuel, (E) asbestos, (F) lead in water, paint or elsewhere, (G) radon,
(H) Polychlorinated Biphenyls (PCB's) and (I) ureaformaldehyde.
b. 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. 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 and releases Seller from any liability with respect
to such historical information.
8. CLOSING. The closing ("Closing") of this transaction shall be on
March 3, 1997 ("Closing Date"), at the office of the Title Insurer, at which
xxxx Xxxxxx shall deliver possession of the Property to Purchaser.
9. CLOSING DOCUMENTS.
a. On the Closing Date, Purchaser shall deliver to Seller an
executed closing statement, the balance of the Purchase Price, and such other
documents as may be reasonably required in order to consummate the transaction
as set forth in this Agreement.
b. On the Closing Date, Seller shall deliver to Purchaser
possession of the Property; the Deed (in the form of Exhibit E attached hereto)
subject to the Permitted Exceptions and those Unpermitted Exceptions waived in
writing by Purchaser; an inventory of the Personal Property and a Xxxx of Sale
for the same (in the form of Exhibit F attached hereto); an executed closing
statement; an executed assignment and assumption of all service contracts (in
the form of Exhibit G attached hereto); an executed assignment and assumption
of all leases and security deposits (in the form of Exhibit H attached hereto);
updated rent roll; a notice to the tenants of the transfer of title and the
assumption by Purchaser of the landlord's obligations under the leases and the
obligation to refund the security deposits (in the form of Exhibit I attached
hereto); a non-foreign affidavit (in the form of Exhibit J attached hereto); a
No-Lien/GAP Affidavit in the form of Exhibit M attached hereto; 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.
10. DEFAULT BY PURCHASER. ALL XXXXXXX MONEY DEPOSITED INTO THE ESCROW IS
TO SECURE THE TIMELY PERFORMANCE BY PURCHASER OF ITS OBLIGATIONS AND
UNDERTAKINGS UNDER THIS AGREEMENT, INCLUDING ITS OBLIGATIONS TO MAKE ALL
DEPOSITS ON OR BEFORE THE DATES PROVIDED FOR HEREIN. IF THE PURCHASER FAILS TO
MAKE ITS DEPOSITS INTO THE ESCROW ON OR BEFORE THE DATE SUCH DEPOSIT IS DUE AS
PROVIDED FOR HEREIN, OR IN THE EVENT OF ANY OTHER DEFAULT OF THE PURCHASER
UNDER THE PROVISIONS OF THIS AGREEMENT, THEN SELLER SHALL RETAIN ALL OF THE
XXXXXXX MONEY AND THE INTEREST THEREON AS SELLER'S SOLE RIGHT TO DAMAGES OR ANY
OTHER REMEDY. 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 XXXXXXX MONEY HAS BEEN AGREED UPON, AFTER NEGOTIATION, AS THE PARTIES'
REASONABLE ESTIMATE OF SELLER'S DAMAGES. NOTWITHSTANDING ANYTHING TO THE
CONTRARY CONTAINED HEREIN, EXCEPT FOR A DEFAULT OCCURRING ON THE CLOSING DATE
(I.E. FAILURE TO DELIVER THE CASH DUE AT CLOSING OR THE OTHER DOCUMENTS
REQUIRED TO BE DELIVERED BY PURCHASER AT CLOSING), PURCHASER SHALL NOT BE
DEEMED TO BE IN DEFAULT HEREUNDER UNLESS SELLER SHALL HAVE GIVEN PURCHASER
WRITTEN NOTICE OF THE ALLEGED DEFAULT AND SUCH DEFAULT SHALL NOT HAVE BEEN
CURED WITHIN FIVE (5) DAYS AFTER SUCH NOTICE IS RECEIVED BY PURCHASER.
11. SELLER'S DEFAULT. IF THIS SALE IS NOT COMPLETED BECAUSE OF SELLER'S
DEFAULT, PURCHASER'S SOLE REMEDY SHALL BE THE RIGHT TO RECOVER ACTUAL THIRD
PARTY COSTS INCURRED IN CONDUCTING ITS INVESTIGATION DURING THE APPROVAL PERIOD
AND IN OBTAINING FINANCING FOR THE ACQUISITION OF THE PROPERTY (INCLUDING,
WITHOUT LIMITATION, PAYMENT OF APPLICATION AND/OR COMMITMENT FEES AND
REASONABLE ATTORNEYS' FEES AND COSTS) IN AN AGGREGATE AMOUNT NOT TO EXCEED THE
AMOUNT OF XXXXXXX MONEY THEN ON DEPOSIT WITH THE ESCROW AGENT AND THE RETURN OF
ALL XXXXXXX MONEY TOGETHER WITH ANY INTEREST ACCRUED THEREON, AND THIS
AGREEMENT SHALL TERMINATE AND THE PARTIES SHALL HAVE NO FURTHER LIABILITY TO
EACH OTHER AT LAW OR IN EQUITY. NOTWITHSTANDING ANYTHING TO THE CONTRARY
CONTAINED HEREIN, IF THE SELLER'S DEFAULT IS ITS REFUSAL TO DELIVER THE DEED OR
THE DOCUMENTS REQUIRED TO BE DELIVERED AT CLOSING BY SELLER, THEN PURCHASER
SHALL BE ENTITLED TO XXX FOR SPECIFIC PERFORMANCE.
12. a. PRORATIONS. Rents (exclusive of delinquent rents, but including
prepaid rents); refundable security deposits (which will be assigned to and
assumed by Purchaser and credited to Purchaser at Closing); water and other
utility charges; fuels; prepaid operating expenses relating only to assumed
service contracts; real and personal property taxes; and other similar items
shall be adjusted ratably as of 12:01 A.M. on the Closing Date ("Proration
Date"), and credited or debited to the balance of the cash due at Closing. If
the amount of any of the items to be prorated is not then ascertainable, the
adjustment thereof shall be on the basis of the most recent ascertainable data.
All prorations will be final except as to Delinquent Rents referred to in b
below. If special assessments have been levied against the Property for
completed improvements, then the amount of any installments which are due prior
to the Closing Date shall be paid by the Seller; and the amount of installments
which are due after the Closing Date shall be paid by the Purchaser. All
assessments for incomplete improvements shall be paid by Purchaser.
Notwithstanding anything to the contrary contained herein, if any tenant of the
Property has paid a security deposit prior to Closing and such security deposit
has not been applied by the Seller pursuant to the lease with such tenant or
has not been delivered to Purchaser, then, at Closing, Purchaser shall be
entitled to a credit against the Purchase Price in the amount of any such
security deposit.
b. DELINQUENT RENTS. If, as of the Closing Date, any rent is in
arrears ("Delinquent Rent") for the calendar month in which the Closing occurs,
then Seller's prorata share of the first rent collected by Purchaser minus
Seller's pro rata share of any third party out-of-pocket costs incurred by
Purchaser in collection of same will be delivered to Seller for the Delinquent
Rent. If Delinquent Rent is in arrears for a period prior to the calendar
month in which the Closing occurs, then rents collected by Purchaser shall
first be applied to current rent and then to Delinquent Rent. Purchaser shall
deliver Seller's pro rata share within 10 days of Purchaser's receipt of that
Delinquent Rent. At Closing, Seller shall deliver to Purchaser a list of all
Delinquent Rent which is outstanding as of the Closing. This subparagraph of
this Agreement shall survive the Closing and the delivery and recording of the
Deed. Purchaser shall have no obligation to pursue collection of Delinquent
Rent which is in arrears for more than thirty (30) days. In addition, Seller
acknowledges and agrees that from and after the Closing Date, Seller shall have
no right to independently institute proceedings against any of the tenants to
collect any sums which are payable to Seller and which relate to the period
prior to the Closing.
13. RECORDING. This Agreement shall not be recorded and the act of
recording by Purchaser shall be an act of default hereunder by Purchaser and
shall be subject to the provisions of Paragraph.
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 . Seller hereby consents to an
assignment to an entity whose general partner is an affiliate of or is
controlled by Purchaser or the managing members of Purchaser, provided such
assignment is effected prior to the expiration of the Approval Period.
15. BROKER. The parties hereto acknowledge that Insignia Mortgage and
Investment Company ("Broker") is the only real estate broker involved in this
transaction. Purchaser has not paid and will not pay at any time before, at or
after the Closing, any fee, commission or compensation whatsoever to any person
whomsoever directly or indirectly on account of this Agreement, its
negotiation, or the sale hereby contemplated. Seller agrees to pay Broker a
commission or fee ("Fee") pursuant to a listing agreement between Seller and
Broker. However, this Fee is due and payable only from the proceeds of the
Purchase Price received by Seller. The foregoing does not apply to any fee
which may be paid by Seller to any affiliate of Seller as a result of this
transaction. Purchaser agrees to indemnify, defend and hold harmless the
Seller and any partner, affiliate, parent of Seller, and all shareholders,
employees, officers and directors of Seller or Seller's partner, parent or
affiliate (each of the above is individually referred to as a "Seller
Indemnitee") from all claims, including attorneys' fees and costs incurred by a
Seller Indemnitee as a result of anyone's claiming by or through Purchaser any
fee, commission or compensation on account of this Agreement, its negotiation
or the sale hereby contemplated. Purchaser does now and shall at all times
consent to a Seller Indemnitee's selection of defense counsel. Seller agrees
to indemnify, defend and hold harmless the Purchaser and all shareholders,
employees, officers and directors of Purchaser or Purchaser's partners, parent
or affiliate (each of the above is individually referred to as a "Purchaser
Indemnitee") from all claims, including attorneys' fees and costs incurred by a
Purchaser Indemnitee as a result of anyone's claiming by or through Seller any
fee, commission or compensation on account of this Agreement, its negotiation
or the sale hereby contemplated. Seller does now and shall at all times
consent to a Purchaser Indemnitee's selection of defense counsel.
16. DOCUMENTS, INSPECTION OF PROPERTY AND APPROVAL PERIOD.
a. Seller has delivered or shall deliver to Purchaser copies of
"incident reports", if any, that are in Seller's possession and a history of
reports for losses under Seller's insurance policy for the past three (3) years
that are in Seller's possession and copies of the most recent available tax
bills, rent rolls, insurance premiums, and service contracts (collectively the
"Documents"). All of the Documents shall be subject to approval by Purchaser
in its sole and absolute discretion by the close of business (5:00 P.M. Central
Daylight Time) on January 31, 1997 ("Approval Period"). During the Approval
Period, upon reasonable notice to the Seller, the Purchaser shall have the
right to inspect and approve the condition of the Property including the
interior of the apartments, during normal business hours. Purchaser, its
engineers, architects, employees, contractors and agents shall maintain public
liability insurance policies insuring against claims arising as a result of the
inspections of the Property being conducted by Purchaser. Prior to commencing
any tests, studies and investigations, Purchaser shall deliver to Seller a
certificate of insurance evidencing the existence of the aforesaid policies and
naming Seller as an additional insured. Purchaser agrees to indemnify, defend,
protect and hold Seller harmless from any and all loss, costs, including
attorneys' fees, liability or damages which Seller may incur or suffer as a
result of Purchaser's conducting its inspection and investigation of the
Property including the entry of Purchaser, its employees or agents and its
lender onto the Property, including without limitation, liability for
mechanics' lien claims.
b. Purchaser agrees to defend and hold Seller harmless from any
injuries, damages or claims of any nature whatsoever which Purchaser's
servants, agents or employees may have as a result of Purchaser's inspection of
the Property. Purchaser further agrees to restore any damage to the Property
which may arise as a result of Purchaser's inspection of the Property.
c. If Purchaser disapproves the Documents or the condition of the
Property, it must be by a notice ("Notice of Disapproval") delivered to Seller
and the Escrow Agent prior to the expiration of the Approval Period. Upon
receipt of the Notice of Disapproval, the Xxxxxxx Money plus the interest
accrued thereon shall be returned to the Purchaser. If Purchaser does not
deliver a Notice of Disapproval, then it shall be conclusively presumed that
Purchaser has approved the Documents and the condition of the Property and all
Xxxxxxx Money plus the interest accrued thereon shall belong to Seller unless
Seller is in default hereunder.
17. SURVIVAL OF INDEMNITIES. Notwithstanding anything in this Agreement
to the contrary, Purchaser's and Seller's obligations to indemnify, defend and
hold each other harmless under various provisions of this Agreement shall
forever survive the termination of this Agreement or the Closing and delivery
and recording of the Deed.
18. SELLER'S REPRESENTATIONS, WARRANTIES AND COVENANTS.
a. Any reference herein to Seller's knowledge, representation,
warranty or notice of any matter or thing, shall only mean such knowledge or
notice that has actually been received by Xxxxxxx Xxxxxx, and any
representation or warranty of the Seller is based upon those matters of which
Xxxxxxx Xxxxxx has actual knowledge. Any knowledge or notice given, had or
received by any of Seller's agents, servants or employees shall not be imputed
to Seller or the individual partners or the general partner of Seller.
b. Subject to the limitations set forth in subparagraph a above,
Seller hereby makes the following representations, warranties and covenants,
all of which (except for Seller's representation with respect to the Rent Roll)
are made to the best of Seller's knowledge and which shall survive the Closing
and delivery of the Deed for a period of ninety (90) days:
i. The present use and occupancy of the Property conform with
applicable building and zoning laws and Seller has received no written notice
that any such laws, rules or regulations are being violated.
ii. The rent roll ("Rent Roll") attached hereto as Exhibit K
which will be updated as of the Closing Date is true and accurate. Except as
reflected on the Rent Roll, no tenant has prepaid rent for more than the
current month under its lease and no tenant is entitled to receive any rent
abatement (not already taken) or other concessions (not yet given) in
connection with its tenancy. The leases listed on the Rent Roll are the only
leases affecting the Property. Except for any assignments that will be
released on or prior to the Closing Date, Seller has not made any prior
assignment of the leases (nor any of the rents and other income payable
thereunder). No other third party has any legal or beneficial interest in such
leases (and rents and other income). Except as set forth on the Rent Roll, all
of the leases are in full force and effect and not in default. A list of the
security deposits being held by Seller, with respect to the Property, is
attached to the Rent Roll.
iii. Except as set forth on Exhibit N attached hereto, Seller
has no knowledge of any pending or threatened litigation, claim, cause of
action or administrative proceeding concerning the Property
.
iv. The Seller is an Illinois limited partnership in good
standing.
v. The execution and delivery of this Agreement and the
completion of the transactions contemplated herein shall not constitute a
default under any other agreements by which Seller is bound.
vi. Seller has received no written notices of violation of any
licenses or permits or of other applicable law which have not been cured.
vii. Other than the leases described on the Rent Roll, and the
service contracts (all of which are to be assumed by Purchaser as provided
hereunder and are listed on Exhibit O attached hereto) and any Permitted
Exceptions, there are no written agreements or instruments in force and effect
that grant any person whomsoever or any entity whatsoever any right, title,
interest or benefit in or to all or any part of the Property or any rights to
acquire all or part of the Property which shall survive the Closing.
c. Seller covenants that:
i. The management, operation, leasing and maintenance of the
Property, as presently conducted by the Seller, shall continue until the
Closing Date.
ii. Seller shall not apply any security deposit towards
Delinquent Rent unless Seller is simultaneously terminating the lease or the
tenant is otherwise terminating its lease.
19. ENVIRONMENTAL REPORT. Attached to this Agreement as Exhibit L is a
Phase I Environmental Site Assessment and Limited Asbestos Survey dated
October 21, 1991 prepared by Law Associates, Inc. ("Environmental Report") of
the Property, which Seller is delivering to Purchaser, at Purchaser's request.
Seller makes no representation or warranty that the Environmental Report is
accurate or complete. Purchaser hereby releases Seller from any liability
whatsoever with respect to the Environmental Report, including, without
limitation, the matters set forth in the Environmental Report or the accuracy
and/or completeness of the Environmental Report.
20. LIMITATION OF SELLER'S LIABILITY. No general or limited partner of
Seller, nor any of its respective beneficiaries, shareholders, partners,
officers, agents, 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 xxx or recover on account of any such
alleged personal liability.
21. ORGANIZATIONAL DOCUMENTS. At least ten (10) days prior to the
Closing Date, Purchaser and Seller will provide the other party's attorney with
copies of their organizational documents, including copies of their Partnership
Agreements and authority documents.
22. TIME OF ESSENCE. Time is of the essence of this Agreement.
23. 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 or by facsimile or made by United States registered or
certified mail addressed as follows:
TO SELLER: c/o The Balcor Company
0000 Xxxxxxxx Xxxx
Xxxxx X000
Xxxxxxxxxxx, Xxxxxxxx 00000
Attn: Xxxxx Xxxxx
with copies to: The Balcor Company
0000 Xxxxxxxx Xxxx
Xxxxx X000
Xxxxxxxxxxx, Xxxxxxxx 00000
Attn: Xxxxx Xxxxxxxxx
847/267-1600
847/000-0000 (FAX)
and
Xxxxxx X. Xxxxxx
Xxxxxxxx & Xxxxxxx
Suite 1900
000 Xxxxx Xxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
312/222-0800
312/000-0000 (FAX)
TO PURCHASER: Waterton Associates, LLC
000 X. Xxxxxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxxx X. Xxxxxxxx
312/553-5270
312/000-0000 (FAX)
with a copy to: Xxxxxxx X. Xxxx
Xxxxxxxxx, Xxxxxxx
000 Xxx Xxxx
Xxxx Xxxxxxxxxx, Xxxxxxx 00000
954/768-8257
954/000-0000 (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 or made on the next business day if sent by overnight
courier, or on the same day if sent by facsimile before the close of business,
or the next day if sent by facsimile after the close of business, 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 or by overnight courier or by
facsimile 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.
24. EXECUTION OF AGREEMENT AND ESCROW AGREEMENT. Purchaser will execute
three (3) copies of this Agreement and three (3) copies of the Escrow Agreement
and forward them to Seller for execution, accompanied with the Xxxxxxx Money
payable to the Escrow Agent. Seller will forward one (1) copy of the executed
Agreement to Purchaser and will forward the following to the Escrow Agent:
x. Xxxxxxx Money;
b. One (1) fully executed copy of this Agreement; and
c. 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 the Purchaser and the Seller.
25. GOVERNING LAW. The provision contained herein with reference to
retention of the Xxxxxxx Money in the event of Purchaser's default shall be
governed by the laws of the State of Illinois. The remaining provisions of
this Agreement shall be governed by the laws of the State of Florida.
26. 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.
27. 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.
28. 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.
29. RADON GAS. Radon is a naturally occurring radioactive gas that, when
it has accumulated in a building in sufficient quantities, may present health
risks to persons who are exposed to it over time. Levels of radon that exceed
federal and state guidelines have been found in buildings in Florida.
Additional information regarding radon and radon testing may be obtained from
your county public health unit.
IN WITNESS WHEREOF, the parties hereto have put their hand and seal as of
the date set forth above.
Executed by Purchaser on PURCHASER:
January 28th, 1997.
WATERTON ASSOCIATES, LLC, a
limited liability company
By: /s/ Xxxxx X. Xxxxxxxx
------------------------------------
Executed by Seller on SELLER:
January 30, 1997.
COURTYARDS OF XXXXXXX LIMITED
PARTNERSHIP, an Illinois limited partnership
By: Balcor Partners-XV, an Illinois general
partnership, its general partner
By: RGF-Balcor Associates-II, an Illinois
general partnership, a general partner
By: The Balcor Company, a Delaware
corporation, a general partner
By: /s/ Xxxxx X. Xxxx
-------------------------------------
Xxxxx X. Xxxx
Managing Director and Secretary
Courtyards of Xxxxxxx
Insignia Mortgage and Investment Company ("Broker") executes this Agreement in
its capacity as a real estate broker and acknowledges that the fee or
commission ("Fee") due to it as a result of the transaction described in this
Agreement is the amount as set forth in the listing agreement between Broker
and Seller. Broker also acknowledges that payment of the aforesaid Fee is
conditioned upon the Closing and the receipt of the Purchase Price by the
Seller. Broker agrees to deliver a receipt to the Seller at the Closing for
the Fee and a release stating that no other fees or commissions are due to
Broker from Seller or Purchaser.
INSIGNIA MORTGAGE AND INVESTMENT
COMPANY
By: /s/ Xxxxxxx X. Xxxxxxxxx
-----------------------------------
EXHIBITS
A - Legal
B - Personal Property
C - Escrow Agreement
D - Title Commitment
E - Deed
F - Xxxx of Sale
G - Assignment of Service Contracts
H - Assignment of Leases and Security Deposits
I - Notice to Tenants
J - Non-Foreign Affidavit
K - Rent Roll
L - Environmental Report
M - No-Lien/GAP Affidavit
N - Litigation
O - Service Contracts
