AGREEMENT OF SALE
THIS AGREEMENT, entered into as of the 5th day of November, 1996, by and
between DKS ASSOCIATES ("Purchaser") and WESTWOOD INVESTORS, an Illinois
Limited Partnership ("Seller").
WITNESSETH:
1. PURCHASE AND SALE. Purchaser agrees to purchase and Seller agrees to
sell at the price of Eighteen Million Eight Hundred Thirty-Three Thousand Three
Hundred Thirty-Three and No/100 Dollars ($18,833,333.00) ("Purchase Price"),
that certain property consisting of 452 condominium apartment units located at
0000 Xxxxxx Xxxxx Xxxxx, Xxx Xxxxx, Xxxxxx, more particularly described on
Exhibit A attached hereto ("Property"), which Property is known as Somerset
Pointe Apartments. Included in the Purchase Price is all of the personal
property set forth on Exhibit B, which shall be transferred to Purchaser at
Closing (as hereinafter defined) by a Xxxx of Sale. Computer hardware and
software are not included in the personal property.
2. PURCHASE PRICE. The Purchase Price shall be paid as follows:
a. Upon the execution of this Agreement, the sum of $321,937.00
("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 the Closing Date (as hereinafter defined), $18,833,333.00
(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
Pacific Time on the Closing Date. If the funds are not received by 12:00
Noon Pacific 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 and prorations shall be as of 11:59 P.M. on the
Closing Date.
3. TITLE COMMITMENT AND SURVEY.
a. Attached hereto as Exhibit D is a title commitment with an
effective date of July 26, 1996 ("Title Commitment") for an owner's standard
coverage title insurance policy ("Title Policy") issued by First American Title
Company of Nevada, agent for First American Title Insurance Company ("Title
Insurer"). The owner's Title Policy issued at Closing will be an ALTA policy
in the amount of the Purchase Price subject only to real estate taxes not yet
due and payable, the general printed exceptions set forth in Schedule B-Section
2 (Part I) as Numbers 7, 8 and 9 and the special title exceptions set forth in
Schedule B-Section 2 (Part II) Numbers 4 through 16, 21, 22 and 23 (modified as
to tenants only, as shown on the rent roll) of the Title Commitment. All of
the above are herein referred to as the "Permitted Exceptions". 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, subject only to
the Permitted Exceptions. Seller shall pay the costs of the Title Policy;
including the costs of "extended coverage". Purchaser shall pay for any
special endorsements which Purchaser requires.
b. Purchaser acknowledges receipt of a survey ("Survey") of the
Property prepared by SEA Incorporated and dated January 25, 1996, and Purchaser
approves all of the matters set forth on the Survey. Prior to the Closing,
Seller (at Seller's cost) will have the Survey updated and re-certified to the
Purchaser, the Title Insurer and Purchaser's lender (if any). However, if
Purchaser requires any additional survey work, Purchaser shall pay for the cost
of such additional work.
4. CONDITION OF TITLE/CONVEYANCE. Seller agrees to convey fee simple
title to the Property by Grant, Bargain, Sale Deed ("Deed") in recordable form
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. Seller shall be obligated to remove all
liens, judgments and encumbrances of a definite and ascertainable amount. If
Purchaser elects to terminate this Agreement in accordance with the provisions
of this Paragraph, then the Xxxxxxx Money plus all accrued interest shall be
delivered to the Purchaser, and Purchaser shall be entitled to recover its
actual non-reimbursed third party expenses in an amount not to exceed the
amount of Xxxxxxx Money then on deposit with the Escrow Agent.
5. PAYMENT OF CLOSING COSTS. Purchaser and Seller shall equally share
the costs of the documentary stamps to be paid with reference to the Deed and
all recording costs.
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 $250,000 or less, or in the case of Personal Property, for $25,000
or less, then Purchaser can elect (upon notice to Seller served within 20
business days of such casualty) to either: (i) require Seller to 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 (in which case, Seller shall retain all insurance
proceeds); or (ii) accept the Property in its damaged condition together with
an assignment from Seller of all insurance proceeds and receive a credit at
Closing in the amount of the deductible. If the cost of repair or restoration
exceeds that amount, then Purchaser can elect to either: (i) require the Seller
to repair and restore same, in which event the Closing Date will be extended
until such date as may reasonably be required to complete the repair or
restoration; or (ii) accept the Property in its damaged condition together with
an assignment from Seller of all insurance proceeds and receive a credit at
Closing in the amount of the deductible; or (iii) terminate this Agreement upon
notice to Seller served within twenty (20) business days of such casualty. If
Seller repairs or restores the Property in accordance with the provisions of
this Paragraph, then Seller agrees to consult with Purchaser and comply with
any reasonable requests of Purchaser, provided that they do not unduly delay
the completion of the repair or restoration, and provided that they do not
increase the cost of the repair or restoration.
b. If condemnation proceedings ("Proceedings") are instituted
against the Property and the parties reasonably believe that such Proceedings
will result in an award in excess of $100,000.00, 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 the
parties reasonably believe that the Proceedings will result in an award less
than $100,000.00, then Seller will assign to Purchaser all of its right, title
and interest in the Proceedings, and Purchaser shall take the Property subject
to the Proceedings. If Purchaser elects to terminate this Agreement, it shall
be by notice to the Seller within five (5) days after Seller notifies Purchaser
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 except as may otherwise
be specifically set forth elsewhere in this Agreement with reference to a
representation, warranty or covenant made by the Seller, Purchaser 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 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 with reference to a representation, warranty or covenant made
by the Seller, 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. Except as may otherwise be specifically set forth elsewhere in this
Agreement with reference to a representation, warranty or covenant made by the
Seller, 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.
a. The closing ("Closing") of this transaction shall be on December
16, 1996 ("Closing Date"), at the office of the Purchaser's attorney, at which
xxxx Xxxxxx shall deliver possession of the Property to Purchaser.
b. Purchaser shall have the right to take an inventory of the
Personal Property (other than the Personal Property located in the interior of
the apartments) on the Closing Date. Seller may have its agent accompany the
Purchaser while the inventory is being taken. Purchaser shall receive a credit
for missing items of Personal Property.
c. Upon Notice delivered to the other party no later than
December 9, 1996, Purchaser or Seller shall have the right to extend the
Closing Date to January 9, 1997 ("Extended Closing Date"). Thereafter, all
references herein to the Closing Date shall mean the Extended Closing Date.
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 by
Purchaser; an assignment to Purchaser's designee executed by X.X. Xxxxxx and
Xxxx Xxxxxx of Declarant's rights under the condominium documents (in the form
of Exhibit M attached hereto); a quitclaim assignment executed by Seller of
Declarant's rights under the condominium documents (in the form of Exhibit M-1
attached hereto); 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);
the leases (to be delivered at the Property); updated rent roll (certified by
Seller to be true and correct to the best of Seller's knowledge); 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); an executed assignment of
intangibles which assignment shall include all assignable warranties and
guarantees and Seller's right, title and interest, if any, in the use of the
name Somerset Pointe Apartments and Seller's assignable rights to the telephone
number of the Property (in the form of Exhibit N attached hereto); an executed
assignment of guarantees, warranties, permits, licenses and approvals (in the
form of Exhibit N-1 attached hereto); the written appointment (in the form of
Exhibit O attached hereto) by X.X. Xxxxxx and Xxxx Xxxxxx of all new members to
the Architectural Committee, which new members will be designated by the
Purchaser; a quit-claim deed from X.X. Xxxxxx and Xxxx Xxxxxx conveying to
Purchaser all of their right, title and interest in the mineral rights; the
original tenant lease files (to be delivered at the Property); 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.
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 UNREIMBURSED COSTS IN AN AMOUNT NOT TO EXCEED THE AMOUNT OF XXXXXXX MONEY
THEN ON DEPOSIT WITH THE ESCROW AGENT, PLUS 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 CONTAINED HEREIN TO THE CONTRARY, IF SELLER'S
DEFAULT IS ITS REFUSAL TO DELIVER THE DEED AND THE DOCUMENTS WHICH SELLER IS
REQUIRED TO DELIVER ON THE CLOSING DATE, THEN PURCHASER WILL BE ENTITLED TO XXX
FOR SPECIFIC PERFORMANCE, PROVIDED THAT AT THE TIME OF THE FILING OF THE
COMPLAINT, PURCHASER SHALL DEPOSIT WITH THE ESCROW AGENT THE AMOUNT OF THE
PURCHASE PRICE INCLUSIVE OF THE XXXXXXX MONEY.
12. a. PRORATIONS. Rents (exclusive of delinquent rents, but including
prepaid rents); security and cleaning 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; 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. The parties shall reprorate for omissions or
errors in calculation thirty (30) days after the Closing Date. 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.
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 the first rent collected by Purchaser 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 30 days after the Closing. Any
Delinquent Rent received subsequent to thirty (30) days after the Closing shall
be remitted to Seller within ten (10) days after receipt thereof. This
subparagraph of this Agreement shall survive the Closing and the delivery and
recording of the Deed.
13. RECORDING. Except as may be required by Nevada law in order to
enable Purchaser to exercise its remedies under Paragraph herein, 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, the ownership or control of which is held by Xxx X.
Xxxx and/or Xxx Xxxxxxx, provided such assignment is effected no later than ten
(10) business days prior to the Closing Date. However, Purchaser shall remain
liable for all of the Purchaser's obligations and undertakings set forth in
this Agreement and the exhibits attached hereto.
15. BROKER. The parties hereto acknowledge that CB Commercial Real
Estate Group, Inc. ("Broker") is the only real estate broker involved in this
transaction. 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.
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 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 to Purchaser copies of the most recent
available tax bills, rent rolls, insurance premiums, service contracts and
other documents (collectively the "Documents"). All of the Documents shall be
subject to approval by Purchaser by the close of business (5:00 P.M. Central
Time) on November 29, 1996 ("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 or the transaction for any reason whatsoever, it must be by a notice
("Notice of Disapproval") delivered to Seller and the Escrow Agent prior to the
expiration of the Approval Period. The Notice of Disapproval delivered to
Seller shall be accompanied with copies of all reports ("Reports") which
Purchaser has received during the Approval Period. Upon receipt of the Notice
of Disapproval and copies of the Reports, the Xxxxxxx Money plus the interest
accrued thereon shall be returned to the Purchaser. If Purchaser does not
deliver a Notice of Disapproval and copies of the Reports to Seller, 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.
d. If at any time prior to the Closing Date, Purchaser discovers
any fact or circumstance which would cause a representation or warranty of
Seller to be untrue or misleading, or with the passage of time would become
untrue or misleading and Purchaser fails to notify Seller of such fact or
circumstance, then Purchaser shall be deemed to have waived its right to seek
damages or termination of this Agreement.
17. SURVIVAL OF INDEMNITIES. Notwithstanding anything in this Agreement
to the contrary, the parties' 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 Xxxx Van De Hey, and any
representation or warranty of the Seller is based upon those matters of which
Xxxx Van De Hey 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 (unless otherwise indicated thereon) 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. (a) The present use and occupancy of the Property conform
with applicable building and zoning laws.
(b) Seller has actual knowledge that it has not received
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.
iii. Except as set forth on Exhibit P attached hereto, Seller
has no knowledge of any pending or threatened litigation, claim, cause of
action or administrative proceeding concerning the Property.
iv. The general partner of Seller has the authority to convey
the Property without first obtaining the consent of any other party.
(This representation is based on actual knowledge and not to the best of
Seller's knowledge.)
v. Seller has not received written notice from any
governmental authority that the Property contains Hazardous Materials or
Hazardous Substances. This representation is based on actual knowledge.
vi. The financial information which Seller has provided to
Purchaser is the same information which Seller relies upon when it issues
reports to its investors and when Seller files its tax returns. This
representation is based on actual knowledge.
vii. Seller has no employees at the Property. This
representation is based on actual knowledge.
viii. Except as may be set forth on the Rent Roll, no tenant
is entitled to free rent after the Closing Date.
c. Seller's Covenants:
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 cause the present management agreement to be
terminated as of the Closing Date.
iii. On the Closing Date, Seller will assign to Purchaser all of
Seller's right, title and interest, if any, in all warranties and
guaranties which are assignable by Seller.
iv. Seller shall request the utility company to read all of the
meters on the Closing Date. To the extent that any of the meters has not
been read on the Closing Date, then those utilities will be prorated based
upon the amount of the meter reading for that particular meter for the
prior billing period.
v. Immediately after the expiration of the Approval Period,
Seller shall send out notices of termination with reference to all of the
service contracts listed on Exhibit Q except Prime Cable. Seller shall
send copies of the notices of termination to Purchaser.
19. ENVIRONMENTAL REPORT. Attached to this Agreement as Exhibit L are
the following reports (collectively, "Environmental Report") of the Property,
which Seller is delivering to Purchaser, at Purchaser's request:
a. Phase I Environmental Site Assessment dated October 16, 1995
prepared by Western Technologies Inc.;
b. Letters from Nevada Power Company dated October 13, 1995 and
October 26, 1995.
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. On the Closing Date, Purchaser and Seller
will provide each other's attorney with copies of its organizational documents,
including a certified copy of its recorded certificate of limited partnership
and a true copy of its Partnership Agreement or a certified copy of its
Articles of Incorporation, corporate resolutions authorizing the transaction,
and an incumbency certificate, whichever is applicable. No later than ten (10)
business days prior to the Closing Date, Purchaser shall deliver to the Seller
a copy of its signature block.
22. TIME OF ESSENCE. Time is of the essence of this Agreement.
23. CROSS DEFAULT/OTHER AGREEMENTS. Simultaneously with the execution of
this Agreement, the Purchaser has entered into two other agreements ("Other
Agreements") with Westwood Pointe Associates and Springs Pointe Investors to
acquire Westwood Pointe Apartments, Las Vegas, Nevada and Springs Pointe
Apartments, Las Vegas, Nevada, respectively. Each party hereto acknowledges
that it would not have entered into this Agreement if Purchaser and the sellers
under the Other Agreements had not executed the Other Agreements. A default by
the Purchaser under either of the Other Agreements shall be a default by
Purchaser under this Agreement. A default by a seller under either of the
Other Agreements shall be a default by Seller under this Agreement. If
Purchaser exercises its right of termination under this Agreement, then the
Other Agreements shall automatically be terminated without further action by
either party. In such event, unless this Agreement is terminated because of a
default by Purchaser, the Xxxxxxx Money plus the interest accrued thereon shall
be returned to Purchaser. If there is a termination of this Agreement and the
Other Agreements because of a default by a seller, then any cost recoverable by
Purchaser which was incurred for all of the properties shall be prorated among
all of them.
24. DISTRIBUTIONS. For a period of ninety (90) days after the Closing
Date, Seller shall not distribute $321,937.00 to its partners from the proceeds
of the net cash received from the Purchaser. If Purchaser alleges a claim for
damage against Seller after the Closing Date but prior to the expiration of the
aforesaid ninety (90) day period ("Claim"), then the Seller shall continue to
withhold distribution of the funds in an amount equal to the lesser of (i) the
amount of the Claim, or (ii) $321,937.00, until the Claim is resolved. The
Claim shall specify the exact representation, warranty or covenant which was
breached and the amount of damages the Purchaser alleges it has sustained. If
Seller fails to withhold the amount of the distribution of the funds in
accordance with the provisions of this Agreement, then the general partner
shall have personal liability in an amount equal to the lesser of (i) the
amount of the Claim or (ii) $321,937.00.
25. 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: Xxx X. Xxxx
DKS Associates
0000 X. Xxxxxxx Xxxxxx
Xxx Xxxxx, Xxxxxx 00000
702/737-7166
702/000-0000 (FAX)
with copy to: Xxxxx Xxxxx
Goold, Patterson, XxXxxx & Xxxxxxx
0000 Xxxxx Xxxxx Xxxx
Xxx Xxxxx, Xxxxxx 00000
702/436-2600
702/000-0000 (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.
26. Intentionally Deleted.
27. LAUNDRY LEASE. As of the Closing Date, Seller will have cancelled
the Web laundry lease.
28. 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.
29. Intentionally Deleted.
30. GOVERNING LAW. The provisions of this Agreement shall be governed by
the laws of the State of Nevada.
31. 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.
32. 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.
33. 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.
IN WITNESS WHEREOF, the parties hereto have put their hand and seal as of
the date set forth above.
Executed by Purchaser on PURCHASER:
November 5, 1996.
DKS ASSOCIATES
By: /s/ Xxx X. Xxxx
----------------------------------
Executed by Seller on SELLER:
_______________, 1996.
WESTWOOD INVESTORS, an Illinois
limited partnership
By: BALCOR PARTNERS-XV, an Illinois
general partnership, a general partner
By: RGF-BALCOR ASSOCIATES-II, an
Illinois general partnership, a partner
By: THE BALCOR COMPANY, a Delaware
corporation, a partner
By: /s/ Xxxxx X. Xxxxxxxxx
----------------------------------
Somerset Pointe
CB Commercial Real Estate Group ("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.
CB COMMERCIAL REAL ESTATE GROUP
By:
------------------------------------
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 - Assignment of Declarant's Rights
M-1 - Quitclaim Assignment of Declarant's Rights
N - Assignment of Intangibles
N-1 - Assignment of Guarantees, Warranties, Permits, Licenses and Approvals
O - Appointment of Members to Architectural Committee
P - Litigation
Q - Service Contracts
