AGREEMENT OF SALE
THIS AGREEMENT OF SALE (this "Agreement"), is entered into as of the 16th
day of October, 1996, by and between ARBOR PROPERTIES, INC., a Texas
corporation ("Purchaser"), and LABROC I LIMITED PARTNERSHIP, an Illinois
limited partnership ("Seller").
W I T N E S S E T H:
1. PURCHASE AND SALE. Purchaser agrees to purchase and Seller agrees to sell
at the price (the "Purchase Price") of Twenty-Two Million Two Hundred
Seventy-Eight Thousand Five Hundred and No/100 Dollars ($22,278,500.00), the
following property (collectively referred to herein as the "Property"):
(a) that certain property commonly known as Oxford Hill Apartments,
St. Louis, Missouri, legally described on Exhibit A attached hereto (the
"Land") and all buildings, structures and improvements currently located on the
Land (the "Improvements") or added prior to the Closing Date (hereinafter
defined);
(b) all of the personal property set forth on Exhibit B attached
hereto (the "Personal Property");
(c) all right, title and interest of Seller now owned or acquired by
Seller prior to the Closing Date in and to (i) all public and xxxxxxx xxxxxxx,
xxxxx, xxxxxxx, alleys and passageways, opened or proposed, in front of or
abutting the Land, (ii) any award made or to be made and any unpaid award for
damage to the Land by reason of any change of grade of any such street, road,
avenue, alley or passageway, and (iii) any strips or gores of land adjoining
the Land; and
(d) all right, title and interest of Seller in and to, all and
singular, the estates, rights, privileges, easements and appurtenances
belonging or in any way appertaining to the Land and the Improvements.
2. PURCHASE PRICE. The Purchase Price shall be paid by Purchaser as follows:
2.1. Upon the execution of this Agreement, the sum of Two Hundred Fifty
Thousand and No/100 Dollars ($250,000.00) (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 C; and
2.2. On the "Closing Date" (hereinafter defined), the balance of the
Purchase Price, adjusted in accordance with the prorations, by federally wired
"immediately available" funds, on or before 11:00 a.m Chicago time.
3. TITLE COMMITMENT AND SURVEY.
3.1. Attached hereto as Exhibit D is a copy of a title commitment for an
owner's standard title insurance policy issued by Near North National Title
Corporation on behalf of First American Title Insurance Company (hereinafter
referred to as "Title Insurer") dated June 12, 1996 for the Property (the
"Title Commitment"). For purposes of this Agreement, "Permitted Exceptions"
shall mean: (a) general real estate taxes, association assessments, special
assessments, special district taxes and related charges not yet due and
payable; (b) matters shown on the "Existing Survey" (hereinafter defined); (c)
matters caused by the actions of Purchaser; and (d) the title exceptions set
forth in Schedule B of the Title Commitment as Numbers 10 through 23 inclusive,
to the extent that same affect the Property. All other exceptions to title
shall be referred to as "Unpermitted Exceptions". The Title Commitment shall
be conclusive evidence of good title as therein shown as to all matters to be
insured by the title policy, subject only to the exceptions therein stated. On
the Closing Date, Title Insurer shall deliver to Purchaser a standard title
policy in conformance with the previously delivered Title Commitment, subject
to Permitted Exceptions and Unpermitted Exceptions waived by Purchaser (the
"Title Policy"). Seller and Purchaser shall each pay for one-half (p) of the
costs of the Title Commitment and Title Policy and Purchaser shall pay for the
cost of any endorsements to, or extended coverage on, the Title Policy.
3.2. Purchaser has received a survey of the Property prepared by The
Sterling Company dated April 26, 1984 and revised June 8, 1984 (the "Existing
Survey"). Seller and Purchaser shall each pay for one-half (p) of the costs of
updating the Existing Survey and Seller shall deliver the updated survey (the
"Updated Survey") to Purchaser within 15 days after the date hereof. The
Updated Survey will meet the requirements for an "urban" ALTA/ACSM Land Title
Survey made in accordance with the minimum standard detail requirements for
ALTA/ACSM Land Title Surveys, as adopted in 1992 by the American Land Title
Association and American Congress on Surveying and Mapping, including item
numbers 1, 2 3 and 4 and the size and location of item numbers 6, 7, 8, 9, 10,
11 and 13 from Table A thereof. The Updated Survey shall be certified to
Purchaser (and any other party reasonably designated by Purchaser) and the
legal description of the Land contained in the Updated Survey shall conform to
the legal description of the Land set forth in the Deed (hereinafter defined).
Purchaser hereby acknowledges that all matters disclosed by the Existing Survey
are acceptable to Purchaser.
3.3. The obligation of Purchaser to pay various costs set forth in
Paragraphs 3.1 and 3.2 shall survive the termination of this Agreement.
4. PAYMENT OF CLOSING COSTS.
In addition to the costs set forth in Paragraphs 3.1 and 3.2, Purchaser
and Seller shall each pay for one-half (p) of the costs of the documentary or
transfer stamps to be paid with reference to the Deed (hereinafter defined) and
all other stamps, intangible, transfer, documentary, recording, sales tax and
surtax imposed by law with reference to any other sale documents delivered in
connection with the sale of the Property to Purchaser and all other charges of
the Title Insurer in connection with this transaction. Purchaser and Seller
each shall pay its own attorneys fees in connection with the closing of this
transaction.
5. CONDITION OF TITLE.
5.1. If, prior to "Closing" (as hereinafter defined), a date-down to the
Title Commitment or the Updated Survey discloses any new Unpermitted Exception,
Seller shall have thirty (30) days from the date of the date-down to the Title
Commitment or the Updated Survey, as applicable, at Seller's expense, to (i)
bond over, cure and/or have any Unpermitted Exceptions which, in the aggregate,
do not exceed $100,000.00 (a "Minor Unpermitted Exception"), removed from the
Title Commitment or to have the Title Insurer commit to insure against loss or
damage that may be occasioned by such Unpermitted Exceptions, or (ii) have the
right, but not the obligation, to bond over, cure and/or have any Unpermitted
Exceptions which, in the aggregate, equal or exceed $100,000.00, removed from
the Title Commitment or to have the Title Insurer commit to insure against loss
or damage that may be occasioned by such Unpermitted Exceptions. In such
event, the time of Closing shall be delayed, if necessary, to give effect to
said aforementioned time periods. If Seller fails to cure or have said
Unpermitted Exception removed or have the Title Insurer commit to insure as
specified above within said thirty (30) day period or if Seller elects not to
exercise its rights under (ii) in the preceding sentence, Purchaser may
terminate this Agreement upon notice to Seller within five (5) days after the
expiration of said thirty (30) day period; provided, however, and
notwithstanding anything contained herein to the contrary, if the Unpermitted
Exception which gives rise to Purchaser's right to terminate was recorded
against the Property as a result of the affirmative, willful action of Seller
(and not by any unrelated third party), or if Seller is able to bond over, cure
or remove a Minor Unpermitted Exception for a cost not to exceed $200,000 or
the Title Insurer is willing to insure over a Minor Unpermitted Exception for a
cost not to exceed $200,000 in accordance with the terms hereof and Seller
fails to expend said funds in either case, then Purchaser shall have the
additional rights contained in Paragraph 11 herein. Absent notice from
Purchaser to Seller in accordance with the preceding sentence, Purchaser shall
be deemed to have elected to terminate this Agreement as a result of said
Unpermitted Exception. If Purchaser terminates this Agreement in accordance
with the terms of this Paragraph 5.1, this Agreement shall become null and void
without further action of the parties and all Xxxxxxx Money theretofore
deposited into the escrow by Purchaser together with any interest accrued
thereon, shall be returned to Purchaser, and neither party shall have any
further liability to the other, except for Purchaser's obligation to indemnify
Seller and restore the Property, as more fully set forth in Paragraph 7.
5.2. Seller agrees to convey marketable fee simple title to the Property
to Purchaser by special warranty deed (the "Deed") in recordable form subject
only to the Permitted Exceptions and any Unpermitted Exceptions waived by
Purchaser.
6. CONDEMNATION, EMINENT DOMAIN, DAMAGE AND CASUALTY.
6.1. Except as provided in the indemnity provisions contained in
Paragraph 7.1 of this Agreement, Seller shall bear all risk of loss with
respect to the Property up to the earlier of the dates upon which either
possession or title is transferred to Purchaser in accordance with this
Agreement. Notwithstanding the foregoing, in the event of damage to the
Property by fire or other casualty prior to the Closing Date, repair of which
would cost less than or equal to $50,000.00 (as determined by Seller in good
faith) Purchaser shall not have the right to terminate its obligations under
this Agreement by reason thereof, but Seller shall have the right to elect to
either repair and restore the Property (in which case the Closing Date shall be
extended until completion of such restoration) or to assign and transfer to
Purchaser on the Closing Date all of Seller's right, title and interest in and
to all insurance proceeds paid or payable to Seller on account of such fire or
casualty, and Seller shall pay to Purchaser at the Closing the amount of
Seller's insurance deductible. Seller shall promptly notify Purchaser in
writing of any such fire or other casualty and Seller's determination of the
cost to repair the damage caused thereby. In the event of damage to the
Property by fire or other casualty prior to the Closing Date, repair of which
would cost in excess of $50,000.00 (as determined by Seller in good faith),
then this Agreement may be terminated at the option of Purchaser, which option
shall be exercised, if at all, by Purchaser's written notice thereof to Seller
within five (5) business days after Purchaser receives written notice of such
fire or other casualty and Seller's determination of the amount of such
damages, and upon the exercise of such option by Purchaser this Agreement shall
become null and void, the Xxxxxxx Money deposited by Purchaser shall be
returned to Purchaser together with interest thereon, and neither party shall
have any further liability or obligations hereunder. In the event that
Purchaser does not exercise the option set forth in the preceding sentence, the
Closing shall take place on the Closing Date and Seller shall assign and
transfer to Purchaser on the Closing Date all of Seller's right, title and
interest in and to all insurance proceeds paid or payable to Seller on account
of the fire or casualty, and Seller shall pay to Purchaser at the Closing the
amount of Seller's insurance deductible.
6.2. If between the date of this Agreement and the Closing Date, any
condemnation or eminent domain proceedings are initiated which might result in
the taking of any part of the Property or the taking or closing of any right of
access to the Property, Seller shall immediately notify Purchaser of such
occurrence. In the event that the taking of any part of the Property, in the
reasonable judgment of Purchaser, shall: (i) materially impair access to the
Property; (ii) cause any material non-compliance with any applicable law,
ordinance, rule or regulation of any federal, state or local authority or
governmental agencies having jurisdiction over the Property or any portion
thereof; or (iii) materially and adversely impair the use of the Property as it
is currently being operated (hereinafter collectively referred to as a
"Material Event"), Purchaser may:
6.2.1. terminate this Agreement by written notice to Seller, in
which event the Xxxxxxx Money deposited by Purchaser, together with interest
thereon, shall be returned to Purchaser and all rights and obligations of the
parties hereunder with respect to the closing of this transaction will cease;
or
6.2.2. proceed with the Closing, in which event Seller shall assign
to Purchaser all of Seller's right, title and interest in and to any award made
in connection with such condemnation or eminent domain proceedings.
Purchaser shall then notify Seller, within five (5) business days after
Purchaser's receipt of Seller's notice, whether Purchaser elects to exercise
its rights under Paragraph 6.2.1 or Paragraph 6.2.2. Closing shall be delayed,
if necessary, until Purchaser makes such election. If Purchaser fails to make
an election within such five (5) business day period, Purchaser shall be deemed
to have elected to terminate this Agreement, in which event the Xxxxxxx Money
deposited by Purchaser, together with interest thereon, shall be returned to
Purchaser and all rights and obligations of the parties hereunder with respect
to the closing of this transaction will cease. If between the date of this
Agreement and the Closing Date, any condemnation or eminent domain proceedings
are initiated which do not constitute a Material Event, Purchaser shall be
required to proceed with the Closing, in which event Seller shall assign to
Purchaser all of Seller's right, title and interest in and to any award made in
connection with such condemnation or eminent domain proceedings.
7. INSPECTION AND AS-IS CONDITION.
7.1. Purchaser acknowledges and agrees that prior to the execution and
delivery of this Agreement, Purchaser and agents, engineers, employees,
contractors and surveyors retained by Purchaser were permitted to enter upon
the Property to inspect the Property, including, without limitation, a review
of leases located at the Property, and to conduct and prepare such studies,
tests and surveys as Purchaser deemed necessary and appropriate, and that in
connection with Purchaser's review of the Property, Seller delivered to
Purchaser copies of the current rent roll for the Property, the most recent tax
and insurance bills, utility account numbers, service contracts, and unaudited
year-end 1995 and the most recent 1996 operating statements. Purchaser, by its
execution of this Agreement but subject to the representations and warranties
of Seller contained in Section 16 below, approves the condition of the Property
and the documents received from Seller as described in this paragraph.
All of the foregoing tests, investigations and studies conducted under
this Paragraph 7.1 by Purchaser shall be at Purchaser's sole cost and expense
and Purchaser shall restore the Property to the condition existing prior to the
performance of such tests or investigations by or on behalf of Purchaser.
Purchaser shall defend, indemnify and hold Seller and any affiliate, parent of
Seller, and all shareholders, employees, officers and directors of Seller or
Seller's affiliate or parent (hereinafter collectively referred to as
"Affiliate of Seller") harmless from any and all liability, cost and expense
(including without limitation, reasonable attorney's fees, court costs and
costs of appeal) suffered or incurred by Seller or Affiliates of Seller for
injury to persons or property caused by Purchaser's investigations and
inspection of the Property. Purchaser shall undertake its obligation to defend
set forth in the preceding sentence using attorneys selected by Seller, in
Seller's sole discretion. Purchaser's obligation to defend, indemnify and hold
harmless, as set forth in this paragraph, shall apply only to claims against
Seller or Affiliates of Seller of which Purchaser receives written notice
within the two (2) year period immediately following the Closing.
Notwithstanding anything contained herein to the contrary, the terms of
this Paragraph 7.1, shall survive the Closing and the delivery of the Deed and
termination of this Agreement.
7.2. Purchaser acknowledges and agrees that, except with respect to the
representations and warranties contained herein, it will be purchasing the
Property and the Personal Property based solely upon its inspections and
investigations of the Property and the Personal Property, and that Purchaser
will be purchasing the Property and the Personal Property "AS IS" and "WITH ALL
FAULTS", based upon the condition of the Property and the Personal Property as
of the date of this Agreement, normal and reasonable wear and tear and loss by
fire or other casualty or condemnation excepted. Without limiting the
foregoing, Purchaser acknowledges that, except as may otherwise be specifically
set forth elsewhere in this Agreement, neither Seller nor its consultants,
brokers or agents have made any representations or warranties of any kind upon
which Purchaser is relying as to any matters concerning the Property or the
Personal Property, including, but not limited to, the condition of the land or
any improvements comprising the Property, the existence or non-existence of
"Hazardous Materials" (as hereinafter defined), economic projections or market
studies concerning the Property, any development rights, taxes, bonds,
covenants, conditions and restrictions affecting the Property, water or water
rights, topography, drainage, soil, subsoil of the Property, the utilities
serving the Property or any zoning or building laws, rules or regulations or
"Environmental Laws" (hereinafter defined) affecting the Property. Seller
makes no representation or warranty that the Property complies with Title III
of the Americans with Disabilities Act or any fire code or building code.
Except with respect to a breach by Seller of any representation or warranty
expressly contained herein, Purchaser hereby releases Seller and the Affiliates
of Seller from any and all liability in connection with any claims which
Purchaser may have against Seller or the Affiliates of Seller, and, except with
respect to a breach by Seller of any representation or warranty expressly
contained herein, Purchaser hereby agrees not to assert any claims for
contribution, cost recovery or otherwise, against Seller or the Affiliates of
Seller, relating directly or indirectly to the existence of asbestos or
Hazardous Materials on, or environmental conditions of, the Property, whether
known or unknown. As used herein, "Environmental Laws" means all federal,
state and local statutes, codes, regulations, rules, ordinances, orders,
standards, permits, licenses, policies and requirements (including consent
decrees, judicial decisions and administrative orders) relating to the
protection, preservation, remediation or conservation of the environment or
worker health or safety, all as amended or reauthorized, or as hereafter
amended or reauthorized, including without limitation, the Comprehensive
Environmental Response, Compensation and Liability Act ("CERCLA"), 42 U.S.C.
Section 9601 et seq., the Resource Conservation and Recovery Act of 1976
("RCRA"), 42 U.S.C. Section 6901 et seq., the Emergency Planning and Community
Right-to-Know Act ("Right-to-Know Act"), 42 U.S.C. Section 11001 et seq., the
Clean Air Act ("CAA"), 42 U.S.C. Section 7401 et seq., the Federal Water
Pollution Control Act ("Clean Water Act"), 33 U.S.C. Section 1251 et seq., the
Toxic Substances Control Act ("TSCA"), 15 U.S.C. Section 2601 et seq., the Safe
Drinking Water Act ("Safe Drinking Water Act"), 42 U.S.C. Section 300f et seq.,
the Atomic Energy Act ("AEA"), 42 U.S.C. Section 2011 et seq., the Occupational
Safety and Health Act ("OSHA"), 29 U.S.C. Section 651 et seq., and the
Hazardous Materials Transportation Act (the "Transportation Act"), 49 U.S.C.
Section 1802 et seq. As used herein, "Hazardous Materials" means:
(1) "hazardous substances," as defined by CERCLA; (2) "hazardous wastes," as
defined by RCRA; (3) any radioactive material including, without limitation,
any source, special nuclear or by-product material, as defined by AEA; (4)
asbestos in any form or condition; (5) polychlorinated biphenyls; and (6) any
other material, substance or waste to which liability or standards of conduct
may be imposed under any Environmental Laws. Notwithstanding anything
contained herein to the contrary, the terms of this Paragraph 7.2 shall survive
the Closing and the delivery of the Deed and termination of this Agreement.
7.3. Seller has provided to Purchaser certain unaudited historical
financial information regarding the Property relating to certain periods of
time in which Seller owned the Property. Seller and Purchaser hereby
acknowledge that such information has been provided to Purchaser at Purchaser's
request solely as illustrative material. Seller makes no representation or
warranty 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 and
the Affiliates of Seller from any liability with respect to such historical
information. Notwithstanding anything contained herein to the contrary, the
terms of this Paragraph 7.3 shall survive the Closing and the delivery of the
Deed and termination of this Agreement.
7.4. Seller has provided to Purchaser the following existing report:
Report of Phase I Environmental Site Assessment and Limited Asbestos Survey,
dated April 27, 1993, prepared by Law Engineering, Inc. ("Existing Report").
Seller makes no representation or warranty concerning the accuracy or
completeness of the Existing Report. Purchaser hereby releases Seller and the
Affiliates of Seller from any liability whatsoever with respect to the Existing
Report, or, including, without limitation, the matters set forth in the
Existing Report, and the accuracy and/or completeness of the Existing Report.
Furthermore, Purchaser acknowledges that it will be purchasing the Property
with all faults disclosed in the Existing Report. Notwithstanding anything
contained herein to the contrary, the terms of this Paragraph 7.4 shall survive
the Closing and the delivery of the Deeds and termination of this Agreement.
8. CLOSING.
8.1. The closing of this transaction (the "Closing"), subject to Paragraph
8.2 below, shall be on September 25, 1996 (the "Closing Date"), at the office
of either the Title Insurer in St. Louis, Missouri or Xxxxxx Xxxxxx & Xxxxx,
000 Xxxx Xxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx, at which xxxx Xxxxxx
shall deliver possession of the Property to Purchaser. This transaction shall
be closed through an escrow with Title Insurer, in accordance with the general
provisions of the usual and customary form of deed and money escrow for similar
transactions in Missouri, or at the option of either party, the Closing shall
be a "New York style" closing at which the Purchaser shall wire the Purchase
Price to Title Insurer on the Closing Date and prior to the release of the
Purchase Price to Seller, Purchaser shall receive the Title Policy or marked up
commitment dated the date of the Closing Date. In the event of a New York
style closing, Seller shall deliver to Title Insurer any customary affidavit in
connection with a New York style closing. All closing and escrow fees shall be
divided equally between the parties hereto.
8.2. Notwithstanding anything to the contrary herein contained, provided
Purchaser is not then in default in the performance of its obligations
contained herein, Purchaser shall have the right to postpone the Closing for
two (2) consecutive thirty (30) day periods by delivering written notice of its
election to so postpone the Closing to Seller on or prior to the tenth (10th)
day preceding the Closing Date (as same may have previously been extended
hereby). As a condition precedent to its right to postpone the Closing as
herein set forth, Purchaser, not later than five (5) days following its
delivery of written notice to Seller exercising each of its rights to postpone
the Closing, shall deposit into the escrow established pursuant to the Escrow
Agreement, as additional xxxxxxx money, the sum of $100,000. If Purchaser
timely exercises its right to postpone the Closing as herein set forth, all
references in this Agreement to the Closing Date shall be deemed to refer to
the Closing Date as extended hereby, and all references to the Xxxxxxx Money
shall be deemed to refer to the xxxxxxx money deposited into escrow pursuant to
Paragraph 2.1 plus the xxxxxxx money deposited into escrow pursuant to this
Paragraph.
9. CLOSING DOCUMENTS.
9.1. On or prior to the Closing Date, Seller and Purchaser shall execute
and deliver to one another a joint closing statement. In addition, Purchaser
shall deposit into the deed and money escrow the balance of the Purchase Price,
an assumption of the documents set forth in Paragraph 9.2.3 and 9.2.4 and such
other documents as may be reasonably required by the Title Insurer in order to
consummate the transaction as set forth in this Agreement.
9.2. On the Closing Date, Seller shall execute and deliver to Purchaser
the following:
9.2.1. the Deed (in the form of Exhibit E attached hereto), subject
to Permitted Exceptions and those Unpermitted Exceptions waived by Purchaser;
9.2.2. a quit claim xxxx of sale conveying the Personal Property (in
the form of Exhibit F attached hereto);
9.2.3. assignment and assumption of intangible property (in the form
attached hereto as Exhibit G), including, without limitation, the service
contracts listed in Exhibit H;
9.2.4. an assignment and assumption of leases and security deposits
(in the form attached hereto as Exhibit I);
9.2.5. non-foreign affidavit (in the form of Exhibit J attached
hereto);
9.2.6. original, and/or copies of, leases affecting the Property in
Seller's possession (which shall be delivered to Purchaser at the Property);
9.2.7. all documents and instruments reasonably required by the
Title Insurer to issue the Title Policy (including a so-called "gap
undertaking" in favor of the Title Company to permit the Title Company to issue
the Title Policy to Purchaser on the Closing Date and such other documents
reasonably required by the Title Insurer to issue extended coverage);
9.2.8. possession of the Property to Purchaser, subject to the terms
of leases;
9.2.9. notice to the tenants of the Property of the transfer of
title and assumption by Purchaser of the landlord's obligation under the leases
and the obligation to refund the security deposits (in the form of Exhibit K);
and
9.2.10. a rent roll dated as of the Closing Date.
10. PURCHASER'S DEFAULT. 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 OF THE PURCHASER UNDER THE
PROVISIONS OF THIS AGREEMENT, SELLER SHALL RETAIN ALL OF THE XXXXXXX MONEY AND
THE INTEREST THEREON AS SELLER'S SOLE RIGHT TO DAMAGES OR ANY OTHER REMEDY,
EXCEPT FOR PURCHASER'S OBLIGATIONS TO INDEMNIFY SELLER AND RESTORE THE PROPERTY
AS SET FORTH IN PARAGRAPH 7.1 HEREOF. THE PARTIES HAVE AGREED THAT SELLER'S
ACTUAL DAMAGES, IN THE EVENT OF A DEFAULT BY PURCHASER, WOULD BE EXTREMELY
DIFFICULT OR IMPRACTICAL TO DETERMINE. THEREFORE, BY PLACING THEIR INITIALS
BELOW, THE PARTIES ACKNOWLEDGE THAT THE 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, INCLUDING A BREACH OF ANY REPRESENTATION OR WARRANTY MADE HEREIN BY
SELLER, PURCHASER'S SOLE REMEDY SHALL BE THE RETURN OF ALL XXXXXXX MONEY
TOGETHER WITH ANY INTEREST ACCRUED THEREON, AND THIS AGREEMENT SHALL THEN
BECOME NULL AND VOID AND OF NO EFFECT AND THE PARTIES SHALL HAVE NO FURTHER
LIABILITY TO EACH OTHER AT LAW OR IN EQUITY, EXCEPT FOR PURCHASER'S OBLIGATIONS
TO INDEMNIFY SELLER AND RESTORE THE PROPERTY AS SET FORTH MORE FULLY IN
PARAGRAPH 7 AND PURCHASER'S RIGHT TO RECEIVE FROM SELLER ITS ACTUAL, DOCUMENTED
THIRD PARTY EXPENSES INCURRED IN THE PERFORMANCE OF ITS DUE DILIGENCE HEREUNDER
AND THE PREPARATION OF THIS AGREEMENT, NOT TO EXCEED $200,000 IN THE AGGREGATE.
NOTWITHSTANDING ANYTHING CONTAINED HEREIN TO THE CONTRARY, IF SELLER'S DEFAULT
IS (i) ITS (AND NOT AN UNRELATED THIRD PARTY'S) AFFIRMATIVE, WILLFUL ACTION
WHICH RESULTS IN THE RECORDING OF AN ENCUMBRANCE AGAINST THE PROPERTY WHICH
GIVES RISE TO PURCHASER'S RIGHT TO TERMINATE THIS AGREEMENT PURSUANT TO
PARAGRAPH 5 HEREOF; (ii) ITS FAILURE TO EXPEND UP TO $200,000 IF (A) SELLER IS
ABLE TO BOND OVER, CURE OR REMOVE A MINOR UNPERMITTED EXCEPTION FOR A COST NOT
TO EXCEED $200,000 OR (B) THE TITLE INSURER IS WILLING TO INSURE OVER A MINOR
UNPERMITTED EXCEPTION FOR A COST NOT TO EXCEED $200,000 IN ACCORDANCE WITH THE
TERMS HEREOF WITH THE TERMS HEREOF OR (iii) ITS WILLFUL REFUSAL TO DELIVER THE
DEED, THEN PURCHASER ALTERNATIVELY WILL BE ENTITLED TO XXX FOR SPECIFIC
PERFORMANCE.
12. PRORATIONS.
12.1. Rents (exclusive of delinquent rents, but including prepaid rents);
prepaid associations dues, if any; water and other utility charges; fuels;
prepaid operating expenses; real and personal property taxes and installments
of special assessments which are due in the year in which the Closing Date
occurs; and other similar items shall be adjusted ratably as of 11:59 p.m. on
the Closing Date, and credited against the balance of the cash due at Closing.
Assessments payable in installments which are due in years subsequent to the
year in which the Closing Date occurs shall be paid by Purchaser. If the
amount of any of the items to be prorated is not then ascertainable, the
adjustments thereof shall be on the basis of the most recent ascertainable
data. All prorations will be final except as to delinquent rent referred to in
Paragraph 12.2 below. Refundable security deposits will be assigned to and
assumed by Purchaser and credited to Purchaser at Closing.
12.2. All rent paid following the Closing Date by any tenant of the
Property who is indebted under a lease for basic rent for any period prior to
and including the Closing Date, after the payment to Purchaser of all current
basic rent, shall be deemed a "Post-Closing Receipt" until such time as all
such indebtedness is paid in full. Within ten (10) business days following
each receipt by Purchaser of a Post-Closing Receipt, Purchaser shall pay such
Post-Closing Receipt to Seller. Purchaser shall use commercially reasonable
efforts to collect all amounts which, upon collection, would constitute
Post-Closing Receipts hereunder (but in no event will be obligated to retain
legal counsel or the services of an outside collection agency or to initiate
legal proceedings in furtherance thereof) and may deduct from such Post-Closing
Receipts so collected its reasonable out-of-pocket costs incurred in so
collecting such Post-Closing Receipts. Within 120 days after the Closing Date,
Purchaser shall deliver to Seller a reconciliation statement of Post-Closing
Receipts through the first 90 days after the Closing Date. Upon the delivery
of the Post-Closing Receipts reconciliation, Purchaser shall deliver to Seller
any Post-Closing Receipts owing to Seller and not previously delivered to
Seller in accordance with the terms hereof. Seller retains the right to
conduct an audit, at reasonable times and upon reasonable notice, of
Purchaser's books and records to verify the accuracy of the Post-Closing
Receipts reconciliation statement and upon the verification of additional funds
owing to Seller and the confirmation thereof by Purchaser, Purchaser shall pay
to Seller said additional Post-Closing Receipts. Paragraph 12.2 of this
Agreement shall survive the Closing and the delivery and recording of the Deed.
13. RECORDING. Neither this Agreement nor a memorandum thereof shall be
recorded and the act of recording by Purchaser shall be an act of default
hereunder by Purchaser and subject to the provisions of Paragraph 10 hereof.
14. ASSIGNMENT. Neither Purchaser nor Seller may assign or transfer its
rights or obligations under this Agreement without the prior written consent of
the other party. Purchaser, however, may assign its interest in this Agreement
without the consent of Seller to (i) any entity which is a parent, subsidiary
or affiliate entity of Purchaser, or (ii) any joint venture entity of which
Purchaser (or any parent, subsidiary or affiliate of Purchaser) is a party,
provided that Purchaser remains liable, and the assignee assumes, the
obligations of Purchaser hereunder. No consent given to any transfer or
assignment of rights or obligations hereunder shall be construed as a consent
to any other transfer or assignment of rights or obligations hereunder. No
transfer or assignment in violation in the provisions hereof shall be valid or
enforceable. Subject to the foregoing, this Agreement shall inure to the
benefit of and be binding upon the successors and assigns of the parties.
15. BROKER. The parties hereto represent and warrant that no broker
commission or finder fee is due and payable in connection with this transaction
other than to CB Commercial Real Estate Group, Inc. (to be paid by Seller).
Seller's commission to CB Commercial Real Estate Group, Inc. shall only be
payable out of the proceeds of the sale of the Property in the event the
transaction set forth herein closes. Purchaser and Seller shall indemnify,
defend and hold the other party hereto harmless from any claim whatsoever
(including without limitation, reasonable attorney's fees, court costs and
costs of appeal) from anyone claiming by or through the indemnifying party any
fee, commission or compensation on account of this Agreement, its negotiation
or the sale hereby contemplated other than to CB Commercial Real Estate Group,
Inc. The indemnifying party shall undertake its obligations set forth in this
Paragraph 15 using attorneys selected by the indemnifying party and reasonably
acceptable to the indemnified party. The provisions of this Paragraph 15 will
survive the Closing and delivery of the Deed.
16. REPRESENTATIONS AND WARRANTIES.
16.1. Any reference herein to Seller's knowledge or notice of any matter
or thing shall only mean such knowledge or notice that has actually been
received by Xxxxxxx X. Xxxxxxxxx and Xxxxxxx Xxxxxx (together referred to as
the "Seller's Representative"), and any representation or warranty of the
Seller is based upon those matters of which the Seller's Representative has
actual knowledge. Seller, promptly after its execution of this Agreement,
shall deliver a copy of this Paragraph 16 to the resident manager of the
Property, together with a request to advise Xxxxxxx X. Xxxxxxxxx within five
(5) business days after receipt by such resident manager as to the accuracy and
truthfulness of the representations and warranties contained herein. Xxxxxxx
X. Xxxxxxxxx thereafter shall notify Purchaser as to the response of the
resident manager on or prior to September 23, 1996 if in his advise the
resident manager indicates that any of such representations or warranties are
incorrect. If Xxxxxxx X. Xxxxxxxxx fails to so notify Purchaser, Purchaser
shall be entitled to conclude that the resident manager reviewed such
representations and warranties contained herein and that such resident manager
deemed such representations and warranties to be correct. Any knowledge or
notice given, had or received by any of Seller's agents, servants or employees
shall not be imputed to Seller, the general partner or limited partners of
Seller, the subpartners of the general partner or limited partners of Seller or
Seller's Representative.
16.2. Subject to the limitations set forth in Paragraph 16.1, Seller
hereby makes the following representations and warranties, which
representations and warranties are made to Seller's knowledge: (i) Seller has
no knowledge of any pending or threatened litigation, claim, cause of action or
administrative proceeding concerning the Property except as set forth on the
schedule attached hereto as Exhibit L; (ii) Seller has the power, right and
authority to execute and deliver this Agreement and consummate the transactions
contemplated herein; and (iii) the rent roll attached hereto as Exhibit M which
Seller will update as of the Closing Date is accurate as of the date set forth
thereon; (iv) there are not special assessments, fees or charges (including any
"impact fees" or charges in the nature thereof) of any kind or nature
whatsoever levied or assessed or pending or contemplated against the Property
by any governmental authority having jurisdiction of the Property, except as
set forth in the Permitted Exceptions; (v) Seller is not a "foreign
corporation," "foreign partnership" or "foreign estate" as those terms are
defined in the Internal Revenue Code of 1986, as amended, and Seller will
furnish to Purchaser such further assurance with respect to this representation
and warranty as Purchaser shall reasonably acquire; (vi) except as may be set
forth in the Existing Report, Seller has not received any notice or request for
specific information from any governmental authority having jurisdiction over
the Property regarding any uncured violation or potential uncured violation of
any Environmental Law with respect to the Property; (vi) Seller has no
knowledge that any of the historical financial information provided to
Purchaser pursuant to Paragraph 7.3 above is inaccurate in any material
respect; and (vii) Seller has no environmental reports in its possession
relating to the existence of Hazardous Materials on the Property other than the
Existing Report.
16.3. Purchaser hereby represents and warrants to Seller that Purchaser
has the full right, power and authority to execute and deliver this Agreement
and consummate the transactions contemplated herein.
16.4. Seller covenants to operate, maintain and manage the Property in
the same manner that it has operated, maintained and managed the Property
during the period of Seller's ownership, subject to reasonable wear and tear
and casualty.
16.5. The parties agree that the representations contained herein shall
survive Closing for a period of one hundred twenty (120) days (i.e., the
claiming party shall have no right to make any claims against the other party
for a breach of a representation or warranty after the expiration of the one
hundred twenty (120) day period immediately following Closing).
17. LIMITATION OF LIABILITY.
17.1. Neither Seller, nor any Affiliate of Seller, nor any of their
respective beneficiaries, shareholders, partners, officers, directors, agents
or employees, heirs, successors or assigns shall have any personal liability of
any kind or nature for or by reason of any matter or thing whatsoever under, in
connection with, arising out of or in any way related to this Agreement and the
transactions contemplated herein, and Purchaser hereby waives for itself and
anyone who may claim by, through or under Purchaser any and all rights to xxx
or recover on account of any such alleged personal liability.
17.2. Notwithstanding anything contained herein to the contrary,
Purchaser hereby agrees that the maximum aggregate liability of Seller in
connection with, arising out of or in any way related to a breach by Seller
under this Agreement or any document or conveyance agreement in connection with
the transaction set forth herein after the Closing shall be $250,000.
Purchaser hereby waives for itself and anyone who may claim by, through or
under Purchaser, any and all rights to xxx or recover from Seller any amount
greater than said limit.
17.3. Seller further agrees not to distribute $250,000 of the proceeds of
the Purchase Price to its partners until the later of (i) one hundred twenty
(120) days after the Closing, and (ii) final resolution of any claims by
Purchaser asserted in writing against Seller prior to the expiration of the one
hundred twenty (120) day period after the Closing in accordance with the terms
of this Agreement ("Claims"). If, however, any Claims are disputed by Seller,
Seller shall have the right, by delivery of written notice to Purchaser, to
require Purchaser to file suit in a court of competent jurisdiction in
furtherance of the resolution of such disputed Claims within thirty (30) days
after such written notice to Purchaser. If Purchaser thereafter fails to file
suit as aforesaid within such thirty (30) day period (or the aggregate amount
of such disputed Claims alleged in such lawsuit(s) is less than $250,000),
Seller shall no longer be prevented from distributing the proceeds (or the
portion thereof not the subject of any such Claim(s) for which Purchaser has
filed suit).
18. TIME OF ESSENCE. Time is of the essence of this Agreement.
19. NOTICES. Any notice or demand which either party hereto is required or
may desire to give or deliver to or make upon the other party shall be in
writing and may be personally delivered or given or made by overnight courier
such as Federal Express, by facsimile transmission or made by United States
registered or certified mail addressed as follows:
TO SELLER: x/x Xxx Xxxxxx Xxxxxxx
Xxxxxxxxxxx Xxxx Xxxxxx Xxxxx
0000 Xxxxxxxx Xxxx, Xxxxx X-000
Xxxxxxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx Xxxxx
with copies to: The Balcor Company
Bannockburn Lake Office Plaza
0000 Xxxxxxxx Xxxx, Xxxxx X-000
Xxxxxxxxxxx, Xxxxxxxx 00000
Attention: Xxxx Xxxxxxxxx
(000) 000-0000
(000) 000-0000 (FAX)
and to: Xxxxxx Xxxxxx & Xxxxx
000 Xxxx Xxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000-0000
Attention: Xxxxxx X. Xxxxxxx, Esq.
(000) 000-0000
(000) 000-0000 (FAX)
TO PURCHASER: Arbor Properties, Inc.
000 X. Xxxxxxxxxxx Xxxx
Xxxxx 000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxx
(000) 000-0000
(000) 000-0000 (FAX)
with a copy to: Xxxxxxx & Xxxx X.X.
0000 Xxxxx Xxxxxxxxx
Xxxxxx Xxxx, Xxxxxxxx 00000
Attention: E. T. Xxxxxxx, Esq.
(000) 000-0000
(000) 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 the same day as given if sent by facsimile transmission and
received by 5:00 p.m. Chicago time (if followed on the same day of facsimile
transmission by delivery to an overnight courier for overnight delivery
service) or on the 4th business day after the same is deposited in the United
States Mail as registered or certified matter, addressed as above provided,
with postage thereon fully prepaid. Any such notice, demand or document not
given, delivered or made by registered or certified mail, by overnight courier
or by facsimile transmission as aforesaid shall be deemed to be given,
delivered or made upon receipt of the same by the party to whom the same is to
be given, delivered or made. Copies of all notices shall be served upon the
Escrow Agent.
20. EXECUTION OF AGREEMENT AND ESCROW AGREEMENT. Purchaser will execute 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 set forth in the Escrow Agreement. Seller will
forward one (1) copy of the executed Agreement to Purchaser and will forward
the following to the Escrow Agent:
(A) 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 each of Purchaser and Seller.
21. GOVERNING LAW. The provisions of this Agreement shall be governed by the
laws of the State of Missouri.
22. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement between
the parties and supersedes all other negotiations, understandings and
representations made by and between the parties and the agents, servants and
employees.
23. COUNTERPARTS. This Agreement may be executed in multiple counterparts,
each of which shall be deemed an original but all of which shall constitute one
and the same instrument.
24. CAPTIONS. Paragraph titles or captions contained herein are inserted as a
matter of convenience and for reference, and in no way define, limit, extend or
describe the scope of this Agreement or any provision hereof.
25. LEAD-BASED PAINT.
25.1. EVERY PURCHASER OF ANY INTEREST IN RESIDENTIAL REAL PROPERTY ON
WHICH A RESIDENTIAL DWELLING WAS BUILT PRIOR TO 1978 IS NOTIFIED THAT SUCH
PROPERTY MAY PRESENT EXPOSURE TO LEAD FROM LEAD-BASED PAINT THAT MAY PLACE
YOUNG CHILDREN AT RISK OF DEVELOPING LEAD POISONING. LEAD POISONING IN YOUNG
CHILDREN MAY PRODUCE PERMANENT NEUROLOGICAL DAMAGE, INCLUDING LEARNING
DISABILITIES, REDUCED INTELLIGENCE QUOTIENT, BEHAVIORAL PROBLEMS, AND IMPAIRED
MEMORY. LEAD POISONING ALSO POSES A PARTICULAR RISK TO PREGNANT WOMEN. THE
SELLER OF ANY INTEREST IN RESIDENTIAL REAL PROPERTY IS REQUIRED TO PROVIDE THE
BUYER WITH ANY INFORMATION ON LEAD-BASED PAINT HAZARDS FROM RISK ASSESSMENTS OR
INSPECTIONS IN THE SELLER'S POSSESSION AND NOTIFY THE BUYER OF ANY KNOWN
LEAD-BASED PAINT HAZARDS. A RISK ASSESSMENT OR INSPECTION FOR POSSIBLE
LEAD-BASED PAINT HAZARDS IS RECOMMENDED PRIOR TO PURCHASE.
25.2. To Seller's knowledge (which, for purposes of this Paragraph 25
only, shall include such knowledge or notice that has actually been received by
Xxxxxx X. X'Xxxxx as well as by Seller's Representative) there is no presence
of lead-based paint or lead-based paint hazards in the apartments located on
the Property. To Seller's knowledge there are no records or reports available
to Seller pertaining to lead-based paint. By providing the above information
to Purchaser, Seller intends to comply with the requirements of 24 CFR Part 35
and 40 CFR Part 745. Purchaser hereby affirms receipt of the information set
forth in this Paragraph 25 and receipt of the lead hazard information pamphlet
as required under section 15 U.S.C. 2696. Purchaser hereby acknowledges that
it has been provided an opportunity pursuant to Paragraph 7 above to conduct a
risk assessment or inspection of the Property for the presence of lead-based
paint and/or lead based paint hazards.
IN WITNESS WHEREOF, the parties hereto have put their hand and seal as of
the date first set forth above.
PURCHASER:
ARBOR PROPERTIES, INC., a Texas corporation
By: /s/ Xxxxxx X. Xxxxxxx
---------------------------------
Name: Xxxxxx X. Xxxxxxx
---------------------------------
Its: President
---------------------------------
SELLER:
LABROC I LIMITED PARTNERSHIP, an Illinois limited
partnership
By: Balcor Equity Partners-I, an Illinois
general partnership, its general partner
By: The Balcor Company, a Delaware
corporation, a general partner
By: /s/ Xxxxx X. Xxxxxxxxx
-----------------------------------
Its: Sr. VP
-----------------------------------
BROKER'S AFFIDAVIT
of CB Commercial Real Estate Group, Inc. ("Seller's
Broker") executed this Agreement in its capacity as a real estate broker and
acknowledges that the fee or commission due it from Seller as a result of the
transaction described in this Agreement is as set forth in that certain Listing
Agreement, dated __, 199_ between Seller and Seller's Broker (the "Listing
Agreement"). Seller's Broker also acknowledges that payment of the aforesaid
fee or commission is conditioned upon the Closing and the receipt of the
Purchase Price by the Seller. Seller's Broker agrees to deliver a receipt to
the Seller at the Closing for the fee or commission due Seller's Broker and a
release, in the appropriate form, stating that no other fees or commissions are
due to it from Seller or Purchaser.
By:
----------------------------------
Exhibits
A - Legal
B - Personal Property
C - Escrow Agreement
D - Title Commitment
E - Deed
F - Xxxx of Sale
G - Assignment and Assumption of Intangible Property
H - Service Contracts
I - Assignment and Assumption of Leases and Security Deposits
J - Non-Foreign Affidavit
K - Notice to Tenants
L - Litigation Schedule
M - Rent Roll
October 15, 1996 VIA MESSENGER
The Balcor Company
Attn: Xxxx Xxxxxxxxx
Bannockburn Lake Office Plaza
0000 Xxxxxxxx Xxxx, Xxxxx X-000
Xxxxxxxxxxx, XX 00000
RE: Oxford Hill Apartments
St. Louis, Missouri
Dear Xx. Xxxxxxxxx:
Pursuant to Section 8.2 of the agreement signed by Arbor Properties on October
15, 1996 between LABROC I LIMITED PARTNERSHIP as Seller and ARBOR PROPERTIES,
INC., as Buyer concerning the sale and purchase of the above-referenced
property, Arbor Properties hereby elects to extend the Closing Date for a
period of thirty (30) days to November 24, 1996.
In accordance with Section 8.2, additional Xxxxxxx Money in the amount of One
Hundred Thousand and 00/100 Dollars ($100,000.00) shall be paid to First
American Title Insurance Company for receipt on or before October 20, 1996
being within five (5) days following the date of delivery of this notice.
If you have any questions concerning this extension of the closing date, please
feel free to call me or Xxx Xxxxxxx.
Sincerely,
ARBOR PROPERTIES, INC.
/s/ Xxxxx X. Xxxxxxx
Xxxxx X. Xxxxxxx
President
cc: Xxxxxxx Xxxxxx, CB Commercial
Xxxx Xxxxxxxx, Esq., Xxxxxx Xxxxxx & Zavis
Xxxxxx Xxxxxxx, Esq. Xxxxxxx & Xxxx
