AGREEMENT TO PURCHASE LOAN DOCUMENTS
THIS AGREEMENT TO PURCHASE LOAN DOCUMENTS (this "Agreement") is made as of
the 23rd day of April, 1997, by and between BALCOR MORTGAGE ADVISORS, INC.
("Balcor") and XXXXXXX X. XXXXXX, XXXXXX X. XXXXXX, XXXX X. XXXXXX, XX. and XXX
X. XXXXXX, AS TRUSTEES OF THE JKL TRUST and XXXXXXX X. XXXXX (in their capacity
as the makers of the Note and the other Loan Documents defined below,
collectively, the "Borrower" and in their capacity as purchaser of the Note
and the other Loan Documents, collectively, "Purchaser").
R E C I T A L S
A. Balcor is the owner and holder of that certain Secured Promissory Note
Secured By Mortgage and Security Agreement made by Messrs Xxxxxx, Xxxxxx and
Xxxxx and payable to the order of Balcor (as amended, the "Note").
B. The Note is secured, inter alia, by a Mortgage and Security Agreement
(as amended, the "Mortgage") executed by Borrower in favor of Balcor with
respect to real property and improvements commonly known as Whispering Hills
Apartments in Overland Park, Kansas (the "Property"). The Note, the Mortgage
and the other documents, agreements and instruments which evidence and/or
secure the loans evidenced by the Note, including, without limitation, the
documents, agreements and instruments set forth on Exhibit C, are hereinafter
referred to collectively as the "Loan Documents".
C. Borrower is the owner of the Property.
D. Pursuant to the terms of the Agreement dated as of March 15, 1989,
among Balcor, Borrower and Balcor Property Management, Inc., as amended (the
"March 15, 1989 Agreement"), Balcor has proposed to Borrower that Borrower sell
the Property to Equity Residential Properties Trust ("Equity") for a purchase
price of Seventeen Million Two Hundred Thousand and No/100 Dollars
($17,200,000.00).
E. Pursuant to the terms of the March 15, 1989 Agreement, Borrower has
the right to purchase the Loan Documents from Balcor for the same amount as the
purchase price to be paid by Equity (i.e. Seventeen Million Two Hundred
Thousand and No/100 Dollars [$17,200,000.00]).
F. Borrower has elected to purchase the Loan Documents from Balcor for a
purchase price of $17,200,000.
G. Borrower anticipates entering into an Agreement of Contribution and
Sale (the "Sale Agreement") pursuant to which Borrower will sell and contribute
the Property to Whispering Hills Apartments, L.L.C., a Kansas limited liability
company ("Whispering Hills"). Except in the limited circumstances set forth in
Section 5B of this Agreement, the sale and contribution of the Property by
Borrower to Whispering Hills pursuant to the Sale Agreement is not a condition
precedent to Borrower's obligation to perform hereunder and, except in the
limited circumstances set forth in Section 5B of this Agreement, Borrower's
obligation to perform hereunder is not contingent upon the performance by
Whispering Hills of its obligations under the Sale Agreement.
H. Borrower and Balcor desire to enter into this Agreement to set forth,
among other things, the terms and provisions pursuant to which Balcor shall
sell to Purchaser and Purchaser shall purchase from Balcor the Loan Documents.
NOW, THEREFORE, for and in consideration of the foregoing recitals, and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto hereby agree as follows:
1. RECITALS. The foregoing recitals are deemed part of this Agreement
and are incorporated herein by this reference.
2. PURCHASE AND SALE. Purchaser agrees to purchase from Balcor and
Balcor agrees to sell to Purchaser the Loan Documents at the price of
$17,200,000 (the "Purchase Price"). In addition, at "Closing" (as hereinafter
defined), Purchaser shall pay to Seller an amount equal to the "Positive Cash
Flow" (as defined in the March 15, 1989 Agreement) for the period April 1, 1997
through and including April 20, 1997.
3. PURCHASE PRICE. The Purchase Price shall be paid by Purchaser as
follows:
a. On or before April 14, 1997, the sum of Two Hundred Fifty
Thousand and No/100 Dollars ($250,000.00) (said sum together with any interest
earned thereon if and when deposited, and together with the additional $100,000
"Closing Extension Fee" described in Section 4 hereof if and when deposited
shall hereinafter be referred to as the "Xxxxxxx Money") to be held in escrow
by and in accordance with the provisions of the Escrow Agreement ("Escrow
Agreement") attached hereto as Exhibit A;
b. On the "Closing Date" (hereinafter defined), the Purchase Price,
by federally wired "immediately available" funds, on or before 2:00 p.m Chicago
time. Balcor will distribute the Purchase Price in accordance with the terms
of the March 15, 1989 Agreement.
4. CLOSING. The closing (the "Closing") of the sale and delivery of the
Loan Documents from Balcor to Purchaser shall take place at such place as may
be mutually agreed upon by the parties hereto, on April 30, 1997 (the "Closing
Date"). Notwithstanding anything to the contrary contained within this
Xxxxxxxxx 0, Xxxxxxxxx shall have the right to extend the Closing Date until
May 30, 1997 (the "Alternate Closing Date") by the payment of One Hundred
Thousand and No/100 Dollars ($100,000.00) to Escrow Agent prior to the Closing
Date (the "Closing Extension Fee"). The Closing Extension Fee shall be held by
Escrow Agent but shall be credited against the Purchase Price at Closing, so
long as Purchaser has not defaulted in its obligations hereunder. This
transaction shall be closed through an escrow with the Escrow Agent set forth
on Exhibit A in accordance with the general provisions of the usual and
customary form of escrow for similar transactions in Kansas.
5. PURCHASER DEFAULT.
A. All Xxxxxxx Money deposited into the escrow is to secure the
timely performance by Purchaser of its obligations and undertakings under this
Agreement. In the event of a default by Purchaser under the provisions of this
Agreement, Balcor shall retain all of the theretofore deposited Xxxxxxx Money
as Seller's sole right to damages (provided, however, such default by Borrower
hereunder shall also cause an immediate default by Borrower under the Loan
Documents [without any grace or cure periods], unless: (i) Borrower enters
into the Sale Agreement; (ii) such default by Borrower hereunder is as a result
of a default by Whispering Hills under the Sale Agreement; and (iii) Purchaser
is diligently and in good faith exercising its remedies against Whispering
Hills as a consequence of such default). The parties have agreed that Balcor's
actual damages, in the event of a default by Purchaser, would be extremely
difficult or impractical to determine. The parties acknowledge that the
Xxxxxxx Money (to the extent deposited) has been agreed upon, after
negotiation, as the parties' reasonable estimate of Balcor's damages. Except
as set forth in Sections 5B and 5C hereof, the theretofore deposited Xxxxxxx
Money is non-refundable but shall be applied by Balcor against the Purchase
Price at Closing, so long as Purchaser has not defaulted hereunder.
B. Notwithstanding anything contained herein to the contrary, if
Whispering Hills terminates (but does not default under) the Sale Agreement
pursuant to Sections 4, 7A, 7B or 24A, 24B or 24C (but solely with respect to
the representations or warranties contained in Sections 19B(1),(3)(7) and(10))
thereof then, notwithstanding anything in the Sale Agreement to the contrary,
so long as: (i) such termination is solely as a result of an event or condition
first discovered, arising or notice of which was received from and after the
date of the Sale Agreement (except with respect to a termination pursuant to
Section 4 of the Sale Agreement, in which case the applicable date shall be
April 1, 1997 rather the date of the Sale Agreement); and (ii) the election to
terminate by Whispering Hills is neither as a consequence of default by
Borrower under the Sale Agreement nor the result of any willful, intentional or
grossly negligent act (or failure to act) of Borrower, and as a consequence of
such termination by Whispering Hills, Purchaser is unable to perform hereunder,
Purchaser shall not be in "default" hereunder and Purchaser shall have the
right to terminate this Agreement by promptly giving written notice of such
election to terminate to Balcor (and in all events on or before three (3)
business days following the termination of the Sale Agreement). If written
notice is not received by Balcor pursuant to this Section 5B on or before such
date, then the right of Purchaser to terminate this Agreement pursuant to this
Section 5B shall be forever waived. If Purchaser terminates this Agreement by
written notice to Balcor on or before the required date, the Xxxxxxx Money and
Closing Extension Fee, if applicable, paid by Purchaser shall be immediately
returned to Purchaser and, except as set forth in Sections 5C and 6 below,
neither Purchaser nor Balcor shall have any right, obligation or liability
under this Agreement.
C. If Purchaser terminates this Agreement pursuant to Section 5B
above, or otherwise (including, without limitation, a termination as a
consequence of a failure by Purchaser to deposit the Xxxxxxx Money on or before
April 14, 1997), Purchaser shall proceed diligently and in good faith to
finalize a purchase agreement to sell the Property to Equity and shall
thereafter diligently and in good faith perform its obligations under such
purchase agreement.
6. BALCOR'S REMEDIES. Notwithstanding anything to the contrary in this
Agreement, in the event Purchaser commits a default hereunder or defaults under
the purchase agreement with Equity, if applicable, which default is not cured
within any applicable grace or cure period, if any, or in the event of the
occurrence of any default or event of default under any of the Loan Documents
prior to the Closing Date, which is not cured within any applicable cure period
therefor as set forth under the provisions of the Loan Documents, Balcor may,
at its election, in its sole discretion, commence to exercise and enforce all
of its rights and remedies under such Loan Documents, including, without
limitation, the foreclosure of Balcor's interest in the property encumbered by
such Loan Documents and/or terminating this Agreement. In addition, Balcor
shall have the remedies provided for in Section 5A hereof. In no event shall
Balcor's exercise and enforcement of its rights and remedies as aforesaid
extend the Closing Date. In the event of such exercise, Purchaser agrees that
it shall not submit, contend, allege or otherwise rely on the existence of this
Agreement and/or Purchaser's rights hereunder as an affirmative defense in any
foreclosure action brought by Balcor in connection with the Loan Documents.
Notwithstanding the foregoing to the contrary, if: (i) Purchaser is in default
hereunder as a result of a default by Whispering Hills under the Sale Agreement
(if entered into); and (ii) Purchaser is diligently and in good faith
exercising its remedies against Whispering Hills as a consequence of such
default, then the default by Purchaser hereunder shall not constitute a default
by Purchaser under the Loan Documents (but shall constitute a default hereunder
allowing Balcor to retain the Xxxxxxx Money and the Closing Extension Fee, if
applicable).
7. WIRE INSTRUCTIONS. The Purchase Price shall be payable
contemporaneously with the Closing. Purchaser shall pay the Purchase Price to
Balcor, by federal wire funds transfer no later than 2:00 p.m. Chicago time on
the Closing Date. Such wire transfer shall be made to:
The Northern Trust Company of Chicago
ABA #: 071 000 152
Account Name: Balcor Pension Investors VII
Account #: 85030
With a telephone notification of same to Xxxx Xxxxxxx (847-317-4341).
8. BALCOR DELIVERIES. At the Closing, upon Purchaser's payment of the
Purchase Price as aforesaid and in exchange therefor, Balcor shall execute and
deliver to Purchaser, at Purchaser's election, either (i) an Assignment of Loan
Documents substantially in the form annexed hereto as Exhibit B and all other
documents necessary to transfer Balcor's ownership in the Note and the other
Loan Documents to Purchaser including, without limitation, the original note
endorsed without recourse or warranty; or (ii) a satisfaction of mortgage, the
Note marked "paid" and all other documents necessary to cancel the indebtedness
evidenced by the Loan Documents and release or terminate all liens in favor of
Balcor with respect to the Property. In addition, at Closing Balcor will
deliver to Purchaser originals or certified copies of each of the Loan
Documents listed on Exhibit A to the Assignment of Loan Documents attached
hereto as Exhibit B. To the extent not delivered at Closing, following the
Closing, Balcor shall use good faith efforts to deliver to Purchaser all other
material Loan Documents in Balcor's possession.
9. PURCHASER'S DELIVERIES. At the Closing, Purchaser shall deliver to
Lender the Purchase Price. In addition, at the Closing, Purchaser shall pay to
Balcor the portion of the Positive Cash Flow which Purchaser is required to pay
to Balcor as described in Section 2 above.
10. REPRESENTATIONS AND WARRANTIES. The parties hereto hereby represent
and warrant to the other as follows.
A. Each Purchaser represents and warrants to Balcor as of the date
hereof and the Closing Date that it has the legal right to execute, deliver,
perform, enter into and consummate all transactions contemplated by this
Agreement, and (ii) Purchaser or its agents has reviewed the Note and other
Loan Documents to its full satisfaction.
B. Balcor represents and warrants to Purchaser as of the date hereof and
the Closing Date that:
(i) Balcor is a validly existing Illinois corporation in good
standing under the laws of the State of Illinois.
(ii) Balcor has the full power, authority and legal right to execute,
deliver, perform, enter into and consummate all transactions contemplated by
this Agreement.
(iii) Balcor is the owner of record of the Note and other Loan
Documents which Note and other Loan Documents are unencumbered and lien free.
(iv) Balcor is currently in possession of the mortgage file, if any,
for the Note, as such files exist.
(v) To the best of Balcor's knowledge, the Note and other Loan
Documents are in full force and effect and neither Balcor nor Borrower is
currently in default in the performance of its obligations under the Note and
other Loan Documents and there is no uncured breach presently existing by
Balcor under the Note and other Loan Documents.
11. WAIVER.
A. Borrower hereby represents and warrants to, and covenants with,
Balcor that as of the date hereof and as of the Closing Date, or the Alternate
Closing Date, if applicable, (a) Borrower has no defenses, offsets or
counterclaims of any kind or nature whatsoever against Balcor with respect to
the Loan Documents or the transactions contemplated therein, or any action
previously taken or not taken by Balcor with respect thereto or with respect to
any security interest, encumbrance, lien or collateral in connection therewith
to secure the liabilities of Borrower thereunder and (b) Balcor has fully
performed all obligations to Borrower which it may have had or has on and as of
the date hereof. Without limiting the generality of the foregoing, Borrower,
on its own behalf and on the behalf of its past, present and future
representatives, partners, agents, employees, servants, affiliates and related
companies, successors and assigns (hereinafter referred to as the "Borrowing
Group"), effective upon the Closing, hereby waives, releases and forever
discharges Balcor and its past, present and future officers, directors,
subsidiary and affiliated entities or companies, agents, servants, employees,
shareholders, representatives, successors, assigns, attorneys, accountants,
assets and properties, as the case may be (hereinafter referred to as the
"Lender Group") from and against all manner of actions, cause and causes of
action, suits, debts, sums of money, accounts, reckonings, bonds, bills,
specialties, covenants, contracts, controversies, agreements, promises,
obligations, liabilities, costs, expenses, losses, damages, judgments,
executions, claims and demands, of whatever kind and nature, in law or in
equity, whether known or unknown, whether or not concealed or hidden, arising
out of or relating to any matter, cause or thing whatsoever, that any of the
Borrowing Group, jointly or severally, may have had, or now have or that may
subsequently accrue against the Lender Group by reason of any matter or thing
whatsoever, arising out of or in any way connected to the loan contemplated by
or through the Loan Documents. Borrower acknowledges and agrees that Balcor is
specifically relying upon the representations, warranties, covenants and
agreements contained herein and that such representations, warranties,
covenants, and agreements constitute a material inducement to enter into the
transactions contemplated in this Agreement.
B. Effective upon the Closing, Balcor on behalf of itself and the Lender
Group, shall waive, releases and forever discharge the Borrowing Group from and
against all manner of actions, cause and causes of action, suits, debts, sums
of money, accounts, reckonings, bonds, bills, specialties, covenants,
contracts, controversies, agreements, promises, obligations, liabilities,
costs, expenses, losses, damages, judgments, executions, claims and demands, of
whatever kind and nature, in law or in equity, whether known or unknown,
whether or not concealed or hidden, arising out of or relating to any matter,
cause or thing whatsoever, that any of the Lender Group, jointly or severally,
may have had, or now have or that may subsequently accrue against the Borrowing
Group by reason of any matter or thing whatsoever, arising out of or in any way
connected to the loan contemplated by or through the Loan Documents other than
the obligations of Borrower contained in Sections 27 and 30 hereof which shall
survive the Closing. Balcor acknowledges and agrees that Borrower is
specifically relying upon the representations, warranties, covenants and
agreements contained herein and that such representations, warranties,
covenants, and agreements constitute a material inducement to enter into the
transactions contemplated in this Agreement. Nothing in this Section 11.B. is
intended, nor shall it be construed, to release the Borrower's obligations to
pay the Loan, or to perform from and after the date hereof its covenants under
the Loan Documents, which Loan and Loan Documents, as modified herein and in
the Second Modification of Loan Documents attached hereto, remain in full force
and effect.
12. ENVIRONMENTAL. Purchaser acknowledges and agrees that, except as may
hereinafter be specifically set forth in this Agreement, it will be purchasing
the Loan Documents based upon the condition of the Property as of the date of
this Agreement "AS IS" and "WITH ALL FAULTS" 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 or, if applicable, the Alternate Closing Date.
Without limiting the foregoing, Purchaser acknowledges that, except as may
otherwise be specifically set forth elsewhere in this Agreement, neither Balcor
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. Balcor makes no representation that the Property complies with Title
III of the Americans With Disabilities Act and, except as may hereinafter be
specifically set forth in this Agreement, Balcor makes no representation that
the Property complies with any fire codes or building codes. Purchaser hereby
releases Balcor from any and all liability in connection with any claims which
Purchaser may have against Balcor, and Purchaser hereby agrees not to assert
any claims, for damage, loss, compensation, contribution, cost recovery or
otherwise, against Balcor, 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 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. The Borrowing Group hereby waives,
releases and forever discharges the Lender Group from and against all manner of
actions, cause and causes of action, suits, debts, sums of money, accounts,
reckonings, bonds, bills, specialties, covenants, contracts, controversies,
agreements, promises, obligations, liabilities, costs, expenses, losses,
damages, judgments, executions, claims and demands, of whatever kind and
nature, in law or in equity, whether known or unknown, whether or not concealed
or hidden, arising out of or relating to the environmental condition of the
Property, or any Hazardous Materials, Hazardous Substances or Environmental
Laws affecting the Property. The terms of this Paragraph shall survive the
Closing.
13. NO RECOURSE OR WARRANTY. The sale of the Loan Documents shall be
irrevocable and without representation, warranty or recourse to Balcor, except
as expressly set forth in this Agreement. No officer, partner, affiliate,
shareholder, director, agent or employee of Balcor shall have any personal
liability of any kind or nature for or by reason of any matter or thing
whatsoever under or in connection with, arising out of, or in any way related
to this Agreement or the transactions provided for herein and Purchaser, its
affiliates and all persons claiming by, through or under Purchaser or its
affiliates, hereby waive any and all right to xxx or recover on account of any
such personal liability, whether real or claimed.
14. ACKNOWLEDGEMENT. Except as expressly set forth in this Agreement,
Balcor makes no representations concerning the Loan Documents and hereby
disclaims all warranties of any kind or nature whatsoever whether expressed or
implied. Purchaser acknowledges that this is an arms-length transaction and
that Purchaser is not relying upon any representation of any kind or nature
made by Balcor (or any other person or entity on behalf of Balcor) in entering
into and consummating the transactions contemplated under this Agreement other
than those set forth above (provided, however, Purchaser's reliance on said
representations set forth hereinabove shall be subject to the limitations on
recourse set forth in Paragraph 10 above).
15. BROKER. The parties hereto hereby each represent and warrant to the
other that neither has retained the services of a broker in connection with
this transaction except for Insignia Mortgage and Investment Company ("Balcor's
Broker") retained by Balcor and whose commission will be paid by Balcor.
Purchaser and Balcor each will indemnify and hold harmless the other from all
broker's commissions, finder's fees or consultant's fees due on account of the
transactions herein contemplated to any broker, finder or consultant claiming
to have acted on its behalf other than Balcor's Broker. The indemnification
hereunder shall survive the Closing. Balcor represents to Purchaser that no
portion of the commission being paid to Balcor's Broker is being paid to
Balcor.
16. NOTICE. All notices or other communications ("Notices") given under
this Agreement shall be in writing and shall be sent by either (a) registered
or certified mail, return receipt requested, postage prepaid, or (b) overnight
courier service (with receipt requested), postage prepaid, addressed as follows
(or at such other address as a party may have previously specified by Notice to
the other parties):
(a) if to Purchaser, to:
Xxxxxxx X. Xxxxxx, Xxxxxx X. Xxxxxx
Xxxx X. Xxxxxx, Xx. and Xxx X. Xxxxxx,
as Trustees of the JKL Trust and Xxxxxxx X. Xxxxx
c/o ALP Associates
00000 Xxxxxxxx Xxxxxxxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
(000) 000-0000 (FAX)
with a copy to:
Spencer, Fane, Xxxxx & Xxxxxx
000/00 Xxxxxxxxx Xxxxx
Xxxxxxxx Xxxx, Xxxxxx 00000
Attn: Xxxx Xxxxxxxx and Xxxxxxx X. Xxxxxx
(000) 000-0000 (FAX)
(b) if to Balcor, to:
Balcor Mortgage Advisors, Inc.
Bannockburn Lake Office Plaza
0000 Xxxxxxxx Xxxx, Xxxxx X000
Xxxxxxxxxxx, Xxxxxxxx 00000
Attn: Xxxx Xxxxxxxx
(000) 000-0000 (FAX)
and
Xxxxxx Xxxxxx & Xxxxx
000 Xxxx Xxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxxxx X. Small, Esq.
(000) 000-0000 (FAX)
Notice given as provided above shall be deemed given (1) five business
days after the date mailed as aforesaid, or (2) the day delivered by overnight
courier. In addition, a notice of termination of this Agreement pursuant to
Section 5B above may also be delivered by fax so long as such notice of
termination is simultaneously sent by overnight courier in accordance with the
provisions set forth above. A notice given by fax shall be effective as of the
day delivered so long as a notice is simultaneously sent by overnight courier
in accordance with the provisions set forth above.
17. ENTIRE AGREEMENT. This Agreement, together with the exhibits,
contains the entire agreement between the parties respecting the matters herein
set forth and supersedes all prior agreements between the parties hereto about
such matters. Nothing in this Agreement shall be deemed to constitute an
amendment or modification of, and this Agreement shall not in any way amend or
modify, any of the Loan Documents.
18. SUCCESSORS AND ASSIGNS. This Agreement and the terms and provisions
hereof shall inure to the benefit of and be binding on the parties hereto and
their respective successors and assigns, as permitted. This Agreement may be
assigned or transferred at any time by Purchaser or Balcor only with the prior
written consent of the other party, which may be withheld for any reason;
provided, however, Balcor shall be permitted to assign this Agreement at any
time to any person or entity controlled by, controlling or under common control
with, directly or indirectly, Balcor or any successor in interest to the
Balcor, without the prior consent of Purchaser, provided that the Loan
Documents are concurrently therewith assigned to said assignee. Balcor hereby
consents to an assignment by Purchaser of its right to purchase the Loan
Documents for the Purchase Price, and to receive credit at Closing against the
Purchase Price for the Xxxxxxx Money (and Closing Extension Fee, if applicable)
deposited hereunder, and for the closing adjustments and closing costs
described in Section 27 hereof, to: (i) Whispering Hills; (ii) Xxxx Xxxxx
Kansas City Bank; or (iii) Green Park Financial Limited Partnership; provided,
however, that no such assignment shall relieve Purchaser from its obligations
hereunder, including but not limited to its obligations to pay the "Positive
Cash Flow" amount described in Section 2 hereof. Notwithstanding any such
limited assignment, such assignee shall have no liability under this Agreement
to Balcor or Purchaser for any matter or thing whatsoever. Purchaser shall
deliver notice of any such assignment to Balcor immediately following such
assignment.
19. SURVIVAL. Except as otherwise provided in this Agreement to the
contrary, the representations, covenants and agreements of the parties under
this Agreement shall not survive the Closing but shall be merged therein.
20. GOVERNING LAW. This Agreement shall be governed by and construed and
enforced under the laws of the State of Illinois.
21. MODIFICATION. Except as otherwise provided, this Agreement shall not
be modified or amended except by written agreement signed on behalf of both
Balcor and Purchaser by their respective authorized officer.
22. ARM'S LENGTH. This Agreement has been negotiated at arm's length and
between persons sophisticated and knowledgeable in the matters dealt with in
this Agreement.
23. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument. Execution and delivery
of this Agreement by exchange of facsimile copies bearing the facsimile
signature of a party shall constitute a valid and binding execution and
delivery of this Agreement by such party. Such facsimile copies shall
constitute enforceable original documents.
24. HEADINGS. The headings and titles set forth herein are provided for
convenience and reference only and shall not be considered binding with respect
to the intent or content of any section hereof.
25. TIME OF THE ESSENCE. The parties hereto agree and acknowledge that
time is of the essence of this Agreement and the transactions contemplated
herein.
26. MARCH 15, 1989 AGREEMENT/WAIVER OF RIGHT OF FIRST REFUSAL. Except if
this Agreement is terminated pursuant to Section 5B hereof, Borrower does
hereby forever waive its right, as set forth in section 9(g) of the March 15,
1989 Agreement; provided, however, even if this Agreement is terminated
pursuant to Section 5B hereof, Borrower shall forever waive its rights in
Section 9(g) of the March 15, 1989 Agreement with respect to a sale of the
Property to Equity for a purchase price of not less than $17,200,000. In
addition, the March 15, 1989 Agreement shall automatically terminate and be of
no further force and effect immediately following the adjustment to the
estimate of Positive Cash flow required by paragraph 27 below and the
distribution by Balcor of the proceeds of the sale of the Loan Documents
pursuant to the March 15, 1989 Agreement. However, from and after the
Closing, the March 15, 1989 Agreement shall have no effect or impact on: (a)
the Property; (b) any assignee purchasing the Loan Documents as contemplated by
Section 18 hereof; or (c) the Loan Documents
27. PRORATION. Balcor acknowledges that the proceeds to be paid to
Balcor at Closing may be used to pay customary and reasonable title insurance
(commitment and policy), survey and closing and escrow costs, if any, (but
excluding any attorneys' fees) solely to the extent Purchaser is obligated to
pay such items under the Sale Agreement (if executed) as well as a customary
and appropriate proration of real estate taxes and the amount of security
deposits delivered by Purchaser to Balcor.
28. SECOND MODIFICATION. Immediately preceding the Closing, Balcor and
Borrower will execute and deliver a Second Modification of Loan Documents in
the form of Exhibit D hereto.
29. NO MERGER. It is the intent of the parties hereto that, in the event
title to the property vests in the same person or entity which is also the
holder of the Note, Mortgage and the other Loan Documents, the Note, Mortgage
and the other Loan Documents shall remain in full force and effect and the
interest of such person or entity as the holder of the Note, Mortgage and Loan
Documents shall not merge with the interests of such person or entity as the
owner of the Property.
30. CONDITION SUBSEQUENT. Notwithstanding anything contained herein to
the contrary, if Purchaser fails to deposit the Xxxxxxx Money with the Escrow
Agent on or before April 14, 1997, then, subject to Section 5C hereof, this
Agreement shall terminate and be of no force and effect.
31. POSITIVE CASH FLOW. Attached hereto as Exhibit E is a letter (the
"Positive Cash Flow Letter") from Balcor to Borrower establishing the terms and
conditions pursuant to which the Positive Cash Flow shall be paid to Balcor.
Borrower hereby agrees to comply with those terms of the Positive Cash Flow
Letter applicable to the Borrower. The terms of the Positive Cash Flow Letter
applicable to the period following the Closing Date shall survive the Closing
and the delivery of the assignment of the Loan Documents.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
Executed By Balcor BALCOR MORTGAGE ADVISORS, INC.,
May 6, 1997 an Illinois corporation
By: /s/ Xxxxx Xxxxxxxx
---------------------------------
Name: Xxxxx Xxxxxxxx
---------------------------------
Its: Authorized Representative
---------------------------------
/s/ Xxxxxxx X. Xxxxxx
---------------------------------
Xxxxxxx X. Xxxxxx
/s/ Xxxxxx X. Poratch
---------------------------------
Xxxxxx X. Xxxxxx
/s/ Xxxx X. Xxxxxx
---------------------------------
Xxxx X. Xxxxxx, Trustee
/s/ Xxx X. Xxxxxx
---------------------------------
Xxx X. Xxxxxx, Trustee
/s/ Xxxxxxx X. Xxxxx
---------------------------------
Xxxxxxx X. Xxxxx
