Exhibit 2
04/13/95
North Cove
AGREEMENT OF SALE
THIS AGREEMENT, entered into as of the 19th day of April, 1995, by and between
PACIFIC AMERICAN ADVISORS COMPANY, a Nevada corporation ("Purchaser") and NORTH
COVE INVESTORS, an Illinois Limited Partnership ("Seller").
WITNESSETH:
1. PURCHASE AND SALE. Purchaser agrees to purchase and Seller agrees to sell
at the price of Ten Million Seven Hundred Fifty Thousand and No/100 Dollars
($10,750,000.00) ("Purchase Price"), that certain property ("Property") in
Houston, Texas, more particularly described on Exhibit A attached hereto, which
Property is known as North Cove 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 Bill of Sale.
2. PURCHASE PRICE. The Purchase Price shall be paid as follows:
a. Upon the execution of this Agreement, the sum of $100,000.00 ("Earnest
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. By taking title to the Property subject to the existing first mortgage
("First Mortgage") to the benefit of University Savings Association, which
secures a note to the benefit of University Savings Association in the
original principal amount of $12,150,000.00 ("First Note"). The First
Mortgage and First Note and all other documents securing the First Note
are presently held by State Street Bank and Trust Company ("Lender"). The
unpaid principal balance on the First Note as of the Closing Date (as
hereinafter defined) will be approximately $9,800,000.00; and
c. On the Closing Date (as hereinafter defined), $10,750,000.00 (inclusive
of all Earnest Money) less the outstanding principal balance of the First
Note as of the Closing Date, adjusted in accordance with the prorations by
federally wired "immediately available" funds delivered to the Title
Insurer (as hereinafter defined) no later than 12:00 Noon Central Time on
the Closing Date.
3. UNDERLYING OBLIGATIONS. Copies of the First Note and First Mortgage
documents are attached hereto as Exhibit D and are sometimes hereinafter
referred to as the "First Mortgage Documents". If the First Mortgage Documents
require that the Lender consent to the conveyance provided for in this
Agreement, then Seller's and Purchaser's obligations hereunder are subject to
receipt of the consent ("Consent"). The Purchaser agrees to execute the
documents required by the Lender in order to obtain Lender's Consent, provided
that (1) Purchaser will not assume any personal liability for the indebtedness
and (2) there will be no modifications or material changes in the First
Mortgage Documents. If the Consent is not received by Seller within five (5)
days prior to the Closing Date, then either party shall have the right upon
notice to the other party delivered not less than three (3) days prior to the
Closing Date to terminate this Agreement. In the event of termination of this
Agreement, all the Earnest Money plus all accrued interest shall be delivered
to the Purchaser.
4. TITLE COMMITMENT AND SURVEY.
a. Attached hereto as Exhibit E is a title commitment dated April 6, 1995
("Title Commitment") for an owner's standard coverage title insurance
policy ("Title Policy") issued by Lawyers Title Insurance Company ("Title
Insurer"). The owner's Title Policy issued at Closing will be in the
amount of the Purchase Price subject only to real estate taxes not yet due
and payable, the general printed exceptions contained in the policy and
the special title exceptions set forth in Schedule B, Numbers 1, 2, 4 and
10 through 22, inclusive, and in Schedule C, Numbers 5 and 6 of the Title
Commitment. All of the above are herein referred to as the "Permitted
Exceptions". The Title Commitment shall be conclusive evidence of good
title as therein shown as to all matters insured by the policy, subject
only to the exceptions therein stated. 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. Seller shall pay the
costs of the Title Policy. Purchaser shall pay the costs of the survey
deletion and any other special endorsements which Purchaser requires.
b. Purchaser acknowledges receipt of a survey ("Survey") of the Property
dated February 22, 1983, prepared by Powers Engineering, and Purchaser
approves all of the matters set forth on the Survey. Prior to the
Closing, Seller will have the Survey updated and certified to the
Purchaser, Purchaser's lender (if any), and the Title Insurer. Seller
shall pay the cost of the updated Survey. However, if Purchaser
terminates this Agreement prior to the expiration of the Approval Period
through no fault of Seller, then Purchaser shall reimburse Seller for the
cost of the updated Survey. The reimbursement shall be deducted from the
Earnest Money returned to Purchaser. If the updated Survey discloses
matters which are not reflected on the original Survey and which would
prevent the Title Insurer from deleting the survey exception (except as to
"shortages in area") from the Title Policy ("Survey Defects"), then upon
notice delivered to Seller by Purchaser within ten (10) days after receipt
of the updated Survey, Seller shall have the option to cause the Survey
Defects to be removed from the updated Survey. If Seller is unwilling to
have the Survey Defects removed from the updated Survey, then Purchaser
shall have the right to elect to terminate this Agreement. Purchaser
shall notify Seller of its election within three (3) days after receipt of
notice from Seller that the Survey Defects will not be removed. If
Purchaser fails to make the election within the aforesaid three (3) days,
then it shall be conclusively presumed that Purchaser has elected to take
title to the Property subject to the Survey Defects. If Purchaser elects
to terminate this Agreement pursuant to this Paragraph, then the Earnest
Money plus all accrued interest shall be delivered to Purchaser.
5. CONDITION OF TITLE/CONVEYANCE. Seller agrees to convey fee simple title
to the Property by Special Warranty 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. If Purchaser elects to terminate this Agreement,
then the Earnest Money plus all accrued interest shall be delivered to the
Purchaser.
6. PAYMENT OF CLOSING COSTS. Seller shall pay the recording costs of the
Deed. Purchaser shall pay any costs in connection with the assumption of the
First Mortgage Documents.
7. DAMAGE, CASUALTY AND CONDEMNATION.
a. If the Property suffers damage as a result of any casualty prior to the
Closing Date and can be repaired or restored in the case of real property
for $200,000 or less, or in the case of Personal Property, for $25,000 or
less, then Seller shall commence the repair or restoration in an
expeditious manner, in which event the Closing Date will be extended until
such date as may reasonably be required to complete the repair or
restoration. Seller shall retain all insurance proceeds. If the cost of
repair or restoration exceeds that amount, then either party can elect to
terminate, or Purchaser can elect to require 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. If
Seller elects to terminate this Agreement pursuant to this Paragraph, then
Purchaser will have the option to 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,
provided Purchaser notifies Seller by notice served within twenty (20)
days after receipt of Seller's notice of election to terminate.
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 $200,000.00, 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
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
Earnest Money plus all accrued interest shall be delivered to the
Purchaser.
8. AS-IS CONDITION.
a. Purchaser acknowledges and agrees that it will be purchasing the
Property based solely upon its inspection and investigations of the
Property and that Purchaser will be purchasing the Property "AS IS" and
"WITH ALL FAULTS" based upon the condition of the Property as of the date
of this Agreement, subject to reasonable wear and tear and loss by fire or
other casualty or condemnation from the date of this Agreement until the
Closing Date. Without limiting the foregoing, Purchaser acknowledges
that, except as may otherwise be specifically set forth elsewhere in this
Agreement, neither Seller nor its consultants, brokers or agents have made
any other representations or warranties of any kind upon which Purchaser
is relying as to any matters concerning the Property, including, but not
limited to, the condition of the land or any improvements, the existence
or nonexistence of asbestos, lead in water, lead in paint, radon,
underground or above ground storage tanks, petroleum, toxic waste or any
Hazardous Materials or Hazardous Substances (as such terms are defined
below), the tenants of the Property or the leases affecting the Property,
economic projections or market studies concerning the Property, any
development rights, taxes, bonds, covenants, conditions and restrictions
affecting the Property, water or water rights, topography, drainage, soil,
subsoil of the Property, the utilities serving the Property or any zoning,
environmental or building laws, rules or regulations affecting the
Property. Seller makes no representation that the Property complies with
Title III of the Americans With Disabilities Act or any fire codes or
building codes. Purchaser hereby releases Seller from any and all
liability in connection with any claims which Purchaser may have against
Seller, and Purchaser hereby agrees not to assert any claims, for damage,
loss, compensation, contribution, cost recovery or otherwise, against
Seller, whether in tort, contract, or otherwise, relating directly or
indirectly to the existence of asbestos or Hazardous Materials or
Hazardous Substances on, or environmental conditions of, the Property, or
arising under the Environmental Laws (as such term is hereinafter
defined), or relating in any way to the quality of the indoor or outdoor
environment at the Property. This release shall survive the Closing. As
used herein, the term "Hazardous Materials" or "Hazardous Substances"
means (i) hazardous wastes, hazardous materials, hazardous substances,
hazardous constituents, toxic substances or related materials, whether
solids, liquids or gases, including but not limited to substances defined
as "hazardous wastes," "hazardous materials," "hazardous substances,"
"toxic substances," "pollutants," "contaminants," "radioactive materials,"
or other similar designations in, or otherwise subject to regulation
under, the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended ("CERCLA"), 42 U.S.C. Section 9601
et seq.; the Toxic Substance Control Act ("TSCA"), 15 U.S.C. Section 2601
et seq.; the Hazardous Materials Transportation Act, 49 U.S.C.
Section 1802; the Resource Conservation and Recovery Act ("RCRA"), 42
U.S.C. Section 9601, et seq.; the Clean Water Act ("CWA"), 33 U.S.C.
Section 1251 et seq.; the Safe Drinking Water Act, 42 U.S.C. Section 300f
et seq.; the Clean Air Act ("CAA"), 42 U.S.C. Section 7401 et seq.; and in
any permits, licenses, approvals, plans, rules, regulations or ordinances
adopted, or other criteria and guidelines promulgated pursuant to the
preceding laws or other similar federal, state or local laws, regulations,
rules or ordinance now or hereafter in effect relating to environmental
matters (collectively the "Environmental Laws"); and (ii) any other
substances, constituents or wastes subject to any applicable federal,
state or local law, regulation or ordinance, including any Environmental
Law, now or hereafter in effect, including but not limited to
(A) petroleum, (B) refined petroleum products, (C) waste oil, (D) waste
aviation or motor vehicle fuel, (E) asbestos, (F) lead in water, paint or
elsewhere, (G) radon, (H) Polychlorinated Biphenyls (PCB's) and
(I) ureaformaldehyde.
b. Seller has provided to Purchaser certain unaudited historical financial
information regarding the Property relating to certain periods of time in
which Seller owned the Property. Seller and Purchaser hereby acknowledge
that such information has been provided to Purchaser at Purchaser's
request solely as illustrative material. Seller makes no representation
or warranty that such material is complete or accurate or that Purchaser
will achieve similar financial or other results with respect to the
operations of the Property, it being acknowledged by Purchaser that
Seller's operation of the Property and allocations of revenues or expenses
may be vastly different than Purchaser may be able to attain. Purchaser
acknowledges that it is a sophisticated and experienced purchaser of real
estate and further that Purchaser has relied upon its own investigation
and inquiry with respect to the operation of the Property and releases
Seller from any liability with respect to such historical information.
9. CLOSING. The closing ("Closing") of this transaction shall be on June 15,
1995 ("Closing Date"), at the office of the Title Insurer, at which time Seller
shall deliver possession of the Property to Purchaser.
10. 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 F attached hereto) subject
to the Permitted Exceptions and those Unpermitted Exceptions waived by
Purchaser; an inventory of the Personal Property and a Bill of Sale for
the same (in the form of Exhibit G attached hereto); a Beneficiary
Statement ("Estoppel Certificate") and the Consent from the Lender; an
executed closing statement; an executed assignment and assumption of all
service contracts (in the form of Exhibit H attached hereto); an executed
assignment and assumption of all leases and security deposits (in the form
of Exhibit I attached hereto); an executed assignment of escrows, if any,
(in the form of Exhibit J attached hereto), held by the Lender (which will
be credited to Seller at Closing); updated rent roll; a notice to the
tenants of the transfer of title and the assumption by Purchaser of the
landlord's obligations under the leases and the obligation to refund the
security deposits (in the form of Exhibit K attached hereto); a
non-foreign affidavit (in the form of Exhibit L attached hereto); a notice
to Purchaser (in the form of Exhibit M attached hereto); an assignment and
assumption of intangible property (in the form of Exhibit N attached
hereto); and such other documents as may be reasonably required by the
Title Insurer in order to consummate the transaction as set forth in this
Agreement.
11. DEFAULT BY PURCHASER. ALL EARNEST 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 ANY DEFAULT OF THE PURCHASER UNDER THE
PROVISIONS OF THIS AGREEMENT, SELLER SHALL RETAIN ALL OF THE EARNEST 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
EARNEST MONEY HAS BEEN AGREED UPON, AFTER NEGOTIATION, AS THE PARTIES'
REASONABLE ESTIMATE OF SELLER'S DAMAGES.
12. SELLER'S DEFAULT. IF THIS SALE IS NOT COMPLETED BECAUSE OF SELLER'S
DEFAULT, PURCHASER'S SOLE REMEDY SHALL BE THE RETURN OF ALL EARNEST 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 OTHER DOCUMENTS WHICH SELLER
IS REQUIRED TO DELIVER PURSUANT TO PARAGRAPH 10b HEREIN, THEN PURCHASER WILL BE
ENTITLED TO SUE FOR SPECIFIC PERFORMANCE.
13. a. PRORATIONS. Rents (exclusive of delinquent rents, but including
prepaid rents); refundable security deposits (which will be assigned to
and assumed by Purchaser and credited to Purchaser at Closing); escrow
and/or impounds held by the Lender (which will be assigned to Purchaser
and credited to Seller); interest on the First Note; water and other
utility charges; fuels; prepaid operating expenses; real and personal
property taxes; and other similar items shall be adjusted ratably as of
11:59 P.M. on the Closing Date ("Proration Date"), and credited or debited
to the balance of the cash due at Closing. If the amount of any of the
items to be prorated is not then ascertainable, the adjustment thereof
shall be on the basis of the most recent ascertainable data. All
prorations will be final except as to Delinquent Rents referred to in 13b
below. If special assessments have been levied against the Property for
completed improvements, then the amount of any installments which are due
prior to the Closing Date shall be paid by the Seller; and the amount of
installments which are due after the Closing Date shall be paid by the
Purchaser. All assessments for incomplete improvements shall be paid by
Purchaser.
b. DELINQUENT RENTS. If, as of the Closing Date, any rent is in arrears
for the calendar month in which the Closing occurs, then such rent will be
adjusted ratably as of the Proration Date. If any rent is in arrears for
a period prior to the calendar month in which the Closing occurs
("Delinquent Rent"), then rents collected by Purchaser shall first be
applied to current rent and then to Delinquent Rent. Purchaser shall
deliver Seller's pro rata share within 10 days of Purchaser's receipt of
that Delinquent Rent. This subparagraph of this Agreement shall survive
the Closing and the delivery and recording of the Deed.
14. RECORDING. This Agreement shall not be recorded and the act of recording
by Purchaser shall be an act of default hereunder by Purchaser and shall be
subject to the provisions of Paragraph 11.
15. 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 11. Seller hereby consents to an
assignment to an entity, the ownership and control of which is held by the same
persons owning and controlling Purchaser, provided such assignment is effected
prior to the expiration of the Approval Period and is approved by the Lender.
However, Purchaser shall remain liable for all of the Purchaser's obligations
and undertakings set forth in this Agreement and the exhibits attached hereto.
16. BROKER. The parties hereto acknowledge that Sage Properties ("Broker") is
the only real estate broker involved in this transaction. Purchaser has not
paid and will not pay at any time before, at or after the Closing, any fee,
commission or compensation whatsoever to any person whomsoever directly or
indirectly on account of this Agreement, its negotiation, or the sale hereby
contemplated. Seller agrees to pay Broker a commission or fee ("Fee") pursuant
to a listing agreement between Seller and Broker. However, this Fee is due and
payable only from the proceeds of the Purchase Price received by Seller. The
foregoing does not apply to any fee which may be paid by Seller to any
affiliate of Seller as a result of this transaction. Purchaser agrees to
indemnify, defend and hold harmless the Seller and any partner, affiliate,
parent of Seller, and all shareholders, employees, officers and directors of
Seller or Seller's partner, parent or affiliate (each of the above is
individually referred to as a "Seller Indemnitee") from all claims, including
attorneys' fees and costs incurred by a Seller Indemnitee as a result of
anyone's claiming by or through Purchaser any fee, commission or compensation
on account of this Agreement, its negotiation or the sale hereby contemplated.
Purchaser does now and shall at all times consent to a Seller Indemnitee's
selection of defense counsel. Seller agrees to indemnify, defend and hold
harmless the Purchaser and all shareholders, employees, officers and directors
of Purchaser or Purchaser's 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.
17. 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, and service contracts
(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
May 15, 1995 ("Approval Period"). During the Approval Period, upon
reasonable notice to the Seller, the Purchaser shall have the right to
inspect and approve the condition of the Property including the interior
of the apartments, during normal business hours. Purchaser, its
engineers, architects, employees, contractors and agents shall maintain
public liability insurance policies insuring against claims arising as a
result of the inspections of the Property being conducted by Purchaser.
Prior to commencing any tests, studies and investigations, Purchaser shall
deliver to Seller a certificate of insurance evidencing the existence of
the aforesaid policies and naming Seller as an additional insured.
Purchaser agrees to indemnify, defend, protect and hold Seller harmless
from any and all loss, costs, including attorneys' fees, liability or
damages which Seller may incur or suffer as a result of Purchaser's
conducting its inspection and investigation of the Property including the
entry of Purchaser, its employees or agents and its lender onto the
Property, including without limitation, liability for mechanics' lien
claims.
b. Purchaser agrees to defend and hold Seller harmless from any injuries,
damages or claims of any nature whatsoever which Purchaser's servants,
agents or employees may have as a result of Purchaser's inspection of the
Property. Purchaser further agrees to restore any damage to the Property
which may arise as a result of Purchaser's inspection of the Property.
c. If Purchaser disapproves the Documents or the condition of the
Property, it must be by a notice ("Notice of Disapproval") delivered to
Seller and the Escrow Agent prior to the expiration of the Approval
Period. 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 Earnest 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 Earnest Money plus the
interest accrued thereon shall belong to Seller unless Seller is in
default hereunder.
18. SURVIVAL OF PURCHASER'S INDEMNITY. Notwithstanding anything in this
Agreement to the contrary, Purchaser's obligation to indemnify, defend and hold
Seller 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.
19. 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 Phillip Schechter, and any
representation or warranty of the Seller is based upon those matters of
which Phillip Schechter 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 are made to the best of Seller's knowledge, none of which shall
survive the Closing and delivery of the Deed:
i. The present use and occupancy of the Property conform with applicable
building and zoning laws and Seller has received no written notice that any
such laws, rules or regulations are being violated.
ii. The rent rolls which Seller has submitted to the Purchaser and updated as
of the Closing Date are true and accurate.
iii. Seller has no knowledge of any pending or threatened litigation, claim,
cause of action or administrative proceeding concerning the Property which will
not be removed on the Closing Date.
iv. Seller has not, by any act of omission or commission, caused the Lender to
accelerate the indebtedness and this shall be true on and as of the Closing
Date.
v. The management, operation, leasing and maintenance of the Property, as
presently conducted by the Seller, shall continue until the Closing Date.
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 sue or recover on account of any such
alleged personal liability.
21. PURCHASER'S ORGANIZATIONAL DOCUMENTS AND FINANCIAL STATEMENTS.
a. At least ten (10) days prior to the Closing Date, Purchaser will
provide Seller'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.
b. Within five (5) days after the execution of this Agreement, Purchaser
shall deliver to the Seller, his (its) current financial statements,
signed by Purchaser. Seller will forward the financial statements to
Lender for Lender's approval. If Seller or Lender disapproves the
financial statements within five (5) business days after receipt thereof,
then this Agreement shall be terminated and all Earnest Money deposited
hereunder shall be returned to the Purchaser, together with any interest,
earned thereon.
22. TIME OF ESSENCE. Time is of the essence of this Agreement.
23. NOTICES. Any notice or demand which either party hereto is required or
may desire to give or deliver to or make upon the other party shall be in
writing and may be personally delivered or given or made by overnight courier
such as Federal Express or by facsimile or made by United States registered or
certified mail addressed as follows:
TO SELLER: c/o The Balcor Company
4849 Golf Road
Skokie, Illinois 60077
Attn: Ilona Adams
with copies to: The Balcor Company
4849 Golf Road
Skokie, Illinois 60077
Attn: Al Lieberman
708/677-2900
708/982-4027 (FAX)
Effective May 22, 1995,
Seller's address will be:
Bannockburn Lake Office Complex
2355 Waukegan Road
Suite A-200
Bannockburn, Illinois 60015
and
Morton M. Poznak
Schwartz & Freeman
Suite 1900
401 North Michigan Avenue
Chicago, Illinois 60611
312/222-0800
312/222-0818 (FAX)
TO PURCHASER: David B. Hendricks
Pacific American Advisors, Inc.
5206 FM 1960
Suite 101
Houston, Texas 77069
713/580-0188
713/893-6525 (FAX)
with a copy to: Margaret L. Marter
Pacific American Advisors, Inc.
5206 FM 1960
Suite 101
Houston, Texas 77069
713/580-1247
713/893-6528 (FAX)
subject to the right of either party to designate a different address for
itself by notice similarly given. Any notice or demand so given shall be
deemed to be delivered or made on the next business day if sent by overnight
courier, or on the same day if sent by facsimile before the close of business,
or the next day if sent by facsimile after the close of business, or on the 4th
business day after the same is deposited in the United States Mail as
registered or certified matter, addressed as above provided, with postage
thereon fully prepaid. Any such notice, demand or document not given,
delivered or made by registered or certified mail or by overnight courier or by
facsimile as aforesaid shall be deemed to be given, delivered or made upon
receipt of the same by the party to whom the same is to be given, delivered or
made. Copies of all notices shall be served upon the Escrow Agent.
24. EXECUTION OF AGREEMENT AND ESCROW AGREEMENT. Purchaser will execute three
(3) copies of this Agreement and three (3) copies of the Escrow Agreement and
forward them to Seller for execution, accompanied with the Earnest 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:
a. Earnest Money;
b. One (1) fully executed copy of this Agreement; and
c. Three (3) copies of the Escrow Agreement signed by the parties with a
direction to execute two (2) copies of the Escrow Agreement and deliver a
fully executed copy to the Purchaser and the Seller.
25. GOVERNING LAW. The provisions of this Agreement shall be governed by the
laws of the State of Texas.
26. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement between
the parties and supersedes all other negotiations, understandings and
representations made by and between the parties and the agents, servants and
employees.
27. COUNTERPARTS. This Agreement may be executed in multiple counterparts,
each of which shall be deemed an original but all of which shall constitute one
and the same instrument.
28. CAPTIONS. Paragraph titles or captions contained herein are inserted as a
matter of convenience and for reference, and in no way define, limit, extend or
describe the scope of this Agreement or any provision hereof.
29. WAIVER OF TEXAS DECEPTIVE TRADE PRACTICES ACT. It is the intent of Seller
and Purchaser to waive all of the provisions (other than Section 17.555) of the
Texas Deceptive Trade Practices - Consumer Protection Act, Subchapter E of
Chapter 17 of the Texas Business and Commerce Code (the "DTPA") as such
provisions are or may be applicable to this Agreement and the transaction
evidenced hereby. Accordingly, Seller and Purchaser hereby represent and agree
as follows:
a. Purchaser represents to Seller that Purchaser is not in a significantly
disparate bargaining position with respect to this Agreement and the
transaction evidenced hereby.
b. Purchaser represents to Seller that Purchaser is represented by legal
counsel in connection with this Agreement. Purchaser's legal counsel is
executing this Agreement to confirm that she has advised Purchaser of the
provisions of the Texas Deceptive Trade Practices Act and Purchaser's
waiver thereof.
c. Purchaser represents to Seller that this Agreement does not involve a
purchase or lease of a family residence occupied or to be occupied as
Purchaser's residence.
d. Seller and Purchaser agree that the total consideration paid or to be
paid by Purchaser for the acquisition of the Property exceeds $500,000.
e. Seller and Purchaser hereby agree, for themselves and their respective
heirs, personal representatives, successors and assigns, that all of the
provisions of the DTPA (except for Section 17.555 thereof) which are or
may be applicable to this Agreement and the transaction evidenced hereby
are hereby waived, including specifically, without limitation, all rights
and remedies resulting from or arising out of any and all acts or
practices of the other party in connection with this Agreement and the
transaction evidenced hereby, regardless of whether such acts or practices
occurred before or after the execution of this Agreement.
f. The provisions of this Paragraph shall survive the Closing or any
termination of this Agreement.
IN WITNESS WHEREOF, the parties hereto have put their hand and seal as of the
date set forth above.
Executed by Purchaser on PURCHASER:
April 19, 1995.
PACIFIC AMERICAN ADVISORS
COMPANY, a Nevada corporation
By: /s/David B. Hendricks
-------------------------------
CEO
Executed by Seller on SELLER:
April 24, 1995.
NORTH COVE INVESTORS, an Illinois
limited partnership
By: Balcor Partners-XIII, an Illinois
general partnership, the general partner
By: RGF-Balcor Associates-II, an
Illinois general partnership,
a partner
By: The Balcor Company, a Delaware
corporation, a partner
By: /s/Philip Schechter
--------------------------------
Authorized Agent
Purchaser's attorney executes this Agreement solely for the purpose of
confirming its representation of Purchaser in connection with Purchaser's
waivers set forth in Paragraph 29 and for no other purpose.
PURCHASER'S ATTORNEY:
-----------------------------------
Margaret L. Marter
North Cove
SAGE PROPERTIES ("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.
SAGE PROPERTIES
By: ___________________________________
EXHIBITS
A - Legal
B - Personal Property
C - Escrow Agreement
D - First Note and First Mortgage Documents
E - Title Commitment
F - Deed
G - Bill of Sale
H - Assignment of Service Contracts
I - Assignment of Leases and Security Deposits
J - Assignment of Escrows
K - Notice to Tenants
L - Non-Foreign Affidavit
M - Notice to Purchaser
N - Assignment of Intangible Property