Shadow Ridge
AGREEMENT OF SALE
THIS AGREEMENT, entered into as of the 5th day of July, 1996, by and
between SHERMAN OAKS LIMITED PARTNERSHIP ("Purchaser") and SHADOWRIDGE
INVESTORS, an Illinois Joint Venture ("Seller").
WITNESSETH:
1. PURCHASE AND SALE. Purchaser agrees to purchase and Seller agrees to
sell at the price of Twelve Million Seven Hundred Fifty Thousand and No/100
Dollars ($12,750,000.00) ("Purchase Price"), that certain property ("Property")
in Las Vegas, Nevada, more particularly described on Exhibit A attached hereto,
which Property is known as Shadow Ridge 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 $150,000.00
("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. On the Closing Date (as hereinafter defined), $12,750,000.00
(inclusive of all Earnest Money) adjusted in accordance with the
prorations by federally wired "immediately available" funds delivered to
the Title Insurer (as hereinafter defined) no later than 12:00 Noon
Central Time on the Closing Date. If the funds are not received by 12:00
Noon, then, on the Closing Date, Purchaser shall pay Seller an amount
equal to any additional mortgage per diem interest costs incurred by the
Seller.
3. TITLE COMMITMENT AND SURVEY.
a. Attached hereto as Exhibit D is a title commitment dated
March 20, 1996 ("Title Commitment") for an owner's standard coverage title
insurance policy ("Title Policy") issued by First American 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-Section 2-Part I, Numbers 7, 8 and 9 and Schedule B-Section
2-Part II, Numbers 3 through 13, 18 through 21, 23 and 24 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; however, Purchaser shall pay the costs of
"extended coverage" or any special endorsements which Purchaser requires.
b. Purchaser acknowledges receipt of a survey ("Survey") of the
Property prepared by SEA Inc. dated July, 1983. Prior to the Closing,
Seller will have the Survey updated and certified to the Purchaser and the
Title Insurer. Seller shall pay for the cost of the updated Survey
(approximately $9,800.00), but Purchaser shall pay for the cost of the
additional requirements requested by Purchaser (approximately $2,000.00).
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 from the Title Policy ("Survey Defects"), then upon
notice delivered to Seller by Purchaser within seven (7) days after
Purchaser's execution of this Agreement, Seller shall either cause the
Survey Defects to be removed from the updated Survey or cause the Title
Insurer to insure against loss or damage resulting from the Survey
Defects ("Title Indemnity"). If Seller is unwilling to (i) have the
Survey Defects removed from the updated Survey or (ii) cause the Title
Insurer to issue a Title Indemnity to Purchaser within five (5) days
after receipt of notice from Purchaser of the Survey Defects, 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 or that the Title Insurer will not issue the Title Indemnity.
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.
4. CONDITION OF TITLE/CONVEYANCE. Seller agrees to convey fee simple
title to the Property by Grant, Bargain and Sale Deed ("Deed") in recordable
form subject only to the Permitted Exceptions. If Seller is unable to convey
title to the Property subject only to the Permitted Exceptions because of the
existence of an additional title exception ("Unpermitted Exception"), then, if
Seller cannot obtain a title indemnity insuring over such 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.
5. PAYMENT OF CLOSING COSTS. Seller shall pay the costs of the
documentary stamps (if any) to be paid with reference to the Deed and all other
stamps, intangible, documentary, recording, sales tax and surtax imposed by law
with reference to any other documents delivered in connection with this
Agreement. Purchaser shall pay all costs related to any mortgage that
Purchaser causes to be recorded against the Property.
6. DAMAGE, CASUALTY AND CONDEMNATION.
a. If the Property suffers damage as a result of any casualty prior
to the Closing Date and can be repaired or restored in the case of real
property for $100,000 or less, or in the case of Personal Property, for
$10,000 or less, then Seller shall commence the repair or restoration in
an expeditious manner, in which event the Closing Date will be extended
until such date as may reasonably be required to complete the repair or
restoration. Seller shall retain all insurance proceeds. If the cost of
repair or restoration exceeds that amount, then Seller can elect to
either: (a) repair and restore same, in which event the Closing Date will
be extended until such date as may reasonably be required to complete the
repair or restoration; or (b) terminate this Agreement upon notice to
Purchaser served within twenty (20) business days of such casualty. 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 $100,000.00, then
Purchaser can elect to either take the Property subject to the Proceedings
and an assignment of Seller's interest in the Proceedings or terminate
this Agreement. If 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.
7. AS-IS CONDITION.
a. Purchaser acknowledges and agrees that it will be purchasing the
Property based solely upon its inspection and investigations of the
Property and that Purchaser will be purchasing the Property "AS IS" and
"WITH ALL FAULTS" based upon the condition of the Property as of the date
of this Agreement, subject to reasonable wear and tear and loss by fire or
other casualty or condemnation from the date of this Agreement until the
Closing Date. Without limiting the foregoing, Purchaser acknowledges
that, except as may otherwise be specifically set forth elsewhere in this
Agreement, neither Seller nor its consultants, brokers or agents have made
any other representations or warranties of any kind upon which Purchaser
is relying as to any matters concerning the Property, including, but not
limited to, the condition of the land or any improvements, the existence
or nonexistence of asbestos, lead in water, lead in paint, radon,
underground or above ground storage tanks, petroleum, toxic waste or any
Hazardous Materials or Hazardous Substances (as such terms are defined
below), the tenants of the Property or the leases affecting the Property,
economic projections or market studies concerning the Property, any
development rights, taxes, bonds, covenants, conditions and restrictions
affecting the Property, water or water rights, topography, drainage, soil,
subsoil of the Property, the utilities serving the Property or any zoning,
environmental or building laws, rules or regulations affecting the
Property. Seller makes no representation that the Property complies with
Title III of the Americans With Disabilities Act or any fire codes or
building codes. Purchaser hereby releases Seller from any and all
liability in connection with any claims which Purchaser may have against
Seller, and Purchaser hereby agrees not to assert any claims, for damage,
loss, compensation, contribution, cost recovery or otherwise, against
Seller, whether in tort, contract, or otherwise, relating directly or
indirectly to the existence of asbestos or Hazardous Materials or
Hazardous Substances on, or environmental conditions of, the Property, or
arising under the Environmental Laws (as such term is hereinafter
defined), or relating in any way to the quality of the indoor or outdoor
environment at the Property. This release shall survive the Closing. As
used herein, the term "Hazardous Materials" or "Hazardous Substances"
means (i) hazardous wastes, hazardous materials, hazardous substances,
hazardous constituents, toxic substances or related materials, whether
solids, liquids or gases, including but not limited to substances defined
as "hazardous wastes," "hazardous materials," "hazardous substances,"
"toxic substances," "pollutants," "contaminants," "radioactive materials,"
or other similar designations in, or otherwise subject to regulation
under, the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended ("CERCLA"), 42 U.S.C. Section 9601
et seq.; the Toxic Substance Control Act ("TSCA"), 15 U.S.C. Section 2601
et seq.; the Hazardous Materials Transportation Act, 49 U.S.C.
Section 1802; the Emergency Planning and Community Right-to-Know Act, 42
U.S.C. e1101 et seq.; the Atomic Energy Act ("AEA"), 42 U.S.C. Section
2011 et seq.; the Resource Conservation and Recovery Act ("RCRA"), 42
U.S.C. Section 9601, et seq.; the Clean Water Act ("CWA"), 33 U.S.C.
Section 1251 et seq.; the Safe Drinking Water Act, 42 U.S.C. Section 300f
et seq.; the Clean Air Act ("CAA"), 42 U.S.C. Section 7401 et seq.; and in
any permits, licenses, approvals, plans, rules, regulations or ordinances
adopted, or other criteria and guidelines promulgated pursuant to the
preceding laws or other similar federal, state or local laws, regulations,
rules or ordinance now or hereafter in effect relating to environmental
matters (collectively the "Environmental Laws"); and (ii) any other
substances, constituents or wastes subject to any applicable federal,
state or local law, regulation or ordinance, including any Environmental
Law, now or hereafter in effect, including but not limited to
(A) petroleum, (B) refined petroleum products, (C) waste oil, (D) waste
aviation or motor vehicle fuel, (E) asbestos, (F) lead in water, paint or
elsewhere, (G) radon, (H) Polychlorinated Biphenyls (PCB's) and
(I) ureaformaldehyde.
b. Seller has provided to Purchaser certain unaudited historical
financial information regarding the Property relating to certain periods
of time in which Seller owned the Property. Seller and Purchaser hereby
acknowledge that such information has been provided to Purchaser at
Purchaser's request solely as illustrative material. Except as may be
specifically set forth elsewhere in this Agreement, 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, except as may be specifically
set forth elsewhere in this Agreement, Purchaser has relied upon its own
investigation and inquiry with respect to the operation of the Property
and, except for any representation of Seller with reference to the
historical information, Purchaser releases Seller from any liability with
respect to such historical information.
8. CLOSING.
a. The closing ("Closing") of this transaction shall be on
August 23, 1996 ("Closing Date"), at the office of the Title Insurer, at
which time Seller shall deliver possession of the Property to Purchaser.
9. CLOSING DOCUMENTS.
a. On the Closing Date, Purchaser shall deliver to Seller an
executed closing statement, the balance of the Purchase Price, and such
other documents as may be reasonably required in order to consummate the
transaction as set forth in this Agreement.
b. On the Closing Date, Seller shall deliver to Purchaser
possession of the Property; the Deed (in the form of Exhibit E attached
hereto) subject to the Permitted Exceptions and those Unpermitted
Exceptions waived by Purchaser, if any; an inventory of the Personal
Property and a Bill of Sale for the same (in the form of Exhibit F
attached hereto); an executed closing statement; an executed assignment
and assumption of all service contracts (in the form of Exhibit G attached
hereto); an executed assignment and assumption of all leases and security
deposits (in the form of Exhibit H attached hereto); updated rent roll; a
notice to the tenants of the transfer of title and the assumption by
Purchaser of the landlord's obligations under the leases and the
obligation to refund the security deposits (in the form of Exhibit I
attached hereto); a non-foreign affidavit (in the form of Exhibit J
attached hereto) and such other documents as may be reasonably required by
the Title Insurer in order to consummate the transaction as set forth in
this Agreement.
10. DEFAULT BY PURCHASER. ALL EARNEST MONEY DEPOSITED INTO THE ESCROW IS
TO SECURE THE TIMELY PERFORMANCE BY PURCHASER OF ITS OBLIGATIONS AND
UNDERTAKINGS UNDER THIS AGREEMENT, INCLUDING ITS OBLIGATIONS TO MAKE ALL
DEPOSITS ON OR BEFORE THE DATES PROVIDED FOR HEREIN. IF THE PURCHASER FAILS TO
MAKE ITS ADDITIONAL EARNEST MONEY INTO THE ESCROW ON OR BEFORE THE DATE SUCH
DEPOSIT IS DUE AS PROVIDED FOR HEREIN, OR IN THE EVENT OF ANY OTHER DEFAULT OF
THE PURCHASER UNDER THE PROVISIONS OF THIS AGREEMENT, THEN SELLER SHALL RETAIN
ALL OF THE 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.
11. SELLER'S DEFAULT. IF THIS SALE IS NOT COMPLETED BECAUSE OF SELLER'S
DEFAULT, PURCHASER'S SOLE REMEDY SHALL BE THE RIGHT TO SEEK RECOVERY OF ACTUAL
DAMAGES NOT TO EXCEED THE AMOUNT OF EARNEST MONEY THEN ON DEPOSIT, AND 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
DOCUMENTS SELLER IS REQUIRED TO DELIVER AT CLOSING, THEN PURCHASER WILL BE
ENTITLED TO SUE FOR SPECIFIC PERFORMANCE.
12. a. PRORATIONS. Rents (exclusive of delinquent rents, but including
prepaid rents); refundable security deposits (which will be assigned to and
assumed by Purchaser and credited to Purchaser at Closing); water and other
utility charges; fuels; prepaid operating expenses; management fees in the
amount of 5% of collections; 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 for any reason the Proration Date is earlier than the Closing
Date, then for the period from the Proration Date through the Closing Date,
Purchaser shall be entitled to the benefit of all of the income from the
Property and shall bear the burden of all of the operating expenses of the
Property, including, but not limited to, insurance, service contracts, employee
wages and benefits, management fees, utility costs and interest on the existing
mortgages encumbering the Property (if any). If the amount of any of the items
to be prorated is not then ascertainable, the adjustment thereof shall be on
the basis of the most recent ascertainable data. All prorations will be final
except as to Delinquent Rents referred to in b below. If special assessments
have been levied against the Property for completed improvements, then the
amount of any installments which are due prior to the Closing Date shall be
paid by the Seller; and the amount of installments which are due after the
Closing Date shall be paid by the Purchaser. All assessments for incomplete
improvements shall be paid by Purchaser.
b. DELINQUENT RENTS. If, as of the Closing Date, any rent is in
arrears ("Delinquent Rent") for the calendar month in which the Closing occurs,
then the first rent collected by Purchaser will be delivered to Seller for the
Delinquent Rent. If Delinquent Rent is in arrears for a period prior to the
calendar month in which the Closing occurs, then rents collected by Purchaser
shall first be applied to current rent and then to Delinquent Rent. Purchaser
shall deliver Seller's pro rata share within 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.
13. RECORDING. This Agreement shall not be recorded and the act of
recording by Purchaser shall be an act of default hereunder by Purchaser and
shall be subject to the provisions of Paragraph.
14. ASSIGNMENT. The Purchaser shall not have the right to assign its
interest in this Agreement without the prior written consent of the Seller.
Any assignment or transfer of, or attempt to assign or transfer, Purchaser's
interest in this Agreement shall be an act of default hereunder by Purchaser
and subject to the provisions of Paragraph. Seller hereby consents to an
assignment to an entity, 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 Mortgage Contingency Date.
15. BROKER. The parties hereto acknowledge that CB Commercial Real
Estate Group Inc. ("Broker") is the only real estate broker involved in this
transaction. Seller agrees to pay Broker a commission or fee ("Fee") pursuant
to a listing agreement between Seller and Broker. However, this Fee is due and
payable only from the proceeds of the Purchase Price received by Seller.
Purchaser agrees to indemnify, defend and hold harmless the Seller and any
partner, affiliate, parent of Seller, and all shareholders, employees, officers
and directors of Seller or Seller's partner, parent or affiliate (each of the
above is individually referred to as a "Seller Indemnitee") from all claims,
including attorneys' fees and costs incurred by a Seller Indemnitee as a result
of anyone's claiming by or through Purchaser any fee, commission or
compensation on account of this Agreement, its negotiation or the sale hereby
contemplated. Purchaser does now and shall at all times consent to a Seller
Indemnitee's selection of defense counsel. Seller agrees to indemnify, defend
and hold harmless the Purchaser and all shareholders, employees, officers and
directors of Purchaser or Purchaser's parent or affiliate (each of the above is
individually referred to as a "Purchaser Indemnitee") from all claims,
including attorneys' fees and costs incurred by a Purchaser Indemnitee as a
result of anyone's claiming by or through Seller any fee, commission or
compensation on account of this Agreement, its negotiation or the sale hereby
contemplated. Seller does now and shall at all times consent to a Purchaser
Indemnitee's selection of defense counsel.
16. DOCUMENTS AND INSPECTION OF PROPERTY.
a. Seller has delivered to Purchaser copies of the most recent
available tax bills, rent rolls, insurance premiums, and service contracts
(collectively the "Documents").
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 prior to Purchaser's execution of this
Agreement. Purchaser further agrees to restore any damage to the Property
which may arise as a result of Purchaser's inspection of the Property.
17. MORTGAGE CONTINGENCY. Purchaser's obligations to consummate the
acquisition of the Property is subject to and conditioned upon Purchaser's
obtaining, in Purchaser's sole and reasonable discretion, a non-recourse
mortgage loan in the amount of $8,925,000 at market rates and terms. Purchaser
has applied for the loan and Purchaser shall deliver a copy of the
application(s) to the Seller. Upon receipt of a written response to any
application for a mortgage, Purchaser shall deliver a copy of that response to
Seller. If on or before July 10, 1996, Purchaser does not deliver to Seller a
copy of Purchaser's application for a mortgage loan and a copy of Purchaser's
check for the mortgage commitment fee in an amount equal to one-half of one
percent (1/2%) of the amount of the mortgage loan, then this Agreement shall be
terminated. If Purchaser is unable to obtain a satisfactory mortgage loan
commitment on or before August 7, 1996 ("Mortgage Contingency Date"), then upon
a Mortgage Contingency Notice (Exhibit A in the Escrow Agreement) delivered to
Seller and Escrow Agent no later than 5:00 P.M. Central Time on August 7, 1996,
Purchaser can elect to terminate this Agreement. In the event of termination
pursuant to this Paragraph, the Earnest Money plus all accrued interest thereon
shall be returned to Purchaser without further notification to or involvement
from seller and neither party shall have any further liability under this
Agreement.
18. SURVIVAL OF INDEMNITIES. Notwithstanding anything in this Agreement
to the contrary, the parties' obligations to indemnify, defend and hold each
other harmless under various provisions of this Agreement shall forever survive
the termination of this Agreement or the Closing and delivery and recording of
the Deed.
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 or Mark Van
De Hey, the asset manager of the Property, and any representation or
warranty of the Seller is based upon those matters of which Phillip
Schechter or Mark Van De Hey has actual knowledge. Any knowledge or
notice given, had or received by any of Seller's agents, servants or
employees shall not be imputed to Seller or the individual partners or the
general partner of Seller.
b. Subject to the limitations set forth in subparagraph a above,
Seller hereby makes the following representations, warranties and
covenants, all of which 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 roll ("Rent Roll") attached hereto as Exhibit K
which will be updated as of the Closing Date is true and accurate.
iii. Seller has no knowledge of any pending or threatened
litigation, claim, cause of action or administrative proceeding
concerning the Property.
iv. The financial information which Seller has provided to
Purchaser, as required elsewhere in this Agreement, is the same
information which Seller relies upon when making reports to its
investors and when Seller files its tax returns. Seller has not
intentionally withheld any financial information of a material
nature.
c. The management, operation, leasing and maintenance of the
Property, as presently conducted by the Seller, shall continue until the
Closing Date.
d. If on or prior to the Closing Date, Seller discovers that a
representation or warranty is untrue, then upon receipt of notice from
Seller, Purchaser can elect to terminate this Agreement or take title to
the Property subject to the untrue representation or warranty.
e. For the period commencing with the execution of this Agreement
until the Closing Date, Seller shall deliver to the Purchaser a monthly
rent roll and each week a copy of an occupancy report.
20. SELLER'S RIGHT TO CURE. If on or prior to the Closing Date,
Purchaser discovers that any representation or warranty of Seller is untrue or
misleading in any material respect or that Seller is in default under this
Agreement or that Seller has failed to perform a required covenant
(individually or collectively, a "Breach"), then Purchaser shall give Seller
notice of such Breach. Upon receipt of notice from Purchaser, Seller shall
have ten (10) days in order to cure such Breach and, if necessary, the Closing
Date shall be extended accordingly. If, after making all reasonable efforts,
Seller is unable to cure the Breach, then Purchaser shall elect by notice to
Seller to either waive the Breach or terminate this Agreement. If Purchaser
fails to give Seller notice of a Breach, then Purchaser shall have waived its
rights to assert any claims for such Breach.
21. ENVIRONMENTAL REPORT. Attached to this Agreement as Exhibit M is a
Phase I Environmental Site Assessment dated April 8, 1996 prepared by EMG
("Environmental Report") of the Property, which Seller is delivering to
Purchaser at Purchaser's request. Seller makes no representation or warranty
that the Environmental Report is accurate or complete. Purchaser hereby
releases Seller from any liability whatsoever with respect to the Environmental
Report, including, without limitation, the matters set forth in the
Environmental Report or the accuracy and/or completeness of the Environmental
Report.
22. 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.
23. PURCHASER'S ORGANIZATIONAL DOCUMENTS. 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.
24. TERMINATION. If Purchaser elects to terminate this Agreement
pursuant to any right of termination that Purchaser may have under the
applicable provisions of this Agreement, then upon delivery of a notice to
Seller and the Escrow Agent by Purchaser, the Earnest Money plus all accrued
interest thereon shall immediately be returned to Purchaser.
25. TAX DEFERRED EXCHANGE. Seller will cooperate with Purchaser in order
to enable Purchaser to obtain 1033 tax deferred exchanges; and multiple
forward and reverse 1031 tax deferred exchanges: provided, however, Seller
shall assume no liability with reference to exchanges or any obligation
pertaining to the transfer being made within the time periods required in order
to effectuate the aforesaid exchange.
26. REVIEW OF PERSONAL PROPERTY. On or before the Closing Date,
Purchaser shall have the right to review the inventory of the personal property
to determine whether or not there has been a material change, and if so,
Purchaser shall receive a credit for the missing items.
27. TIME OF ESSENCE. Time is of the essence of this Agreement.
28. 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 addressed as follows:
TO SELLER: c/o The Balcor Company
2355 Waukegan Road
Suite A200
Bannockburn, Illinois 60015
Attn: Ilona Adams
with copies to: The Balcor Company
2355 Waukegan Road
Suite A200
Bannockburn, Illinois 60015
Attn: Al Lieberman
847/267-1600
847/317-4462 (FAX)
and
Morton M. Poznak
Schwartz & Freeman
Suite 1900
401 North Michigan Avenue
Chicago, Illinois 60611
312/222-0800
312/222-0818 (FAX)
TO PURCHASER: Stanley Canter
2120 Plaza Del Dios
Las Vegas, Nevada 89102
619/753-5055
619/753-2339 (FAX)
with a copy to: David Johnson
Woodburn & Wedge
300 S. Fourth Street
Suite 620
Las Vegas, Nevada 89101
702/387-1000
702/387-0024 (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.
29. 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.
30. GOVERNING LAW. The provisions of this Agreement shall be governed by
the laws of the State of Nevada.
31. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
between the parties and supersedes all other negotiations, understandings and
representations made by and between the parties and the agents, servants and
employees.
32. COUNTERPARTS. This Agreement may be executed in multiple
counterparts, each of which shall be deemed an original but all of which shall
constitute one and the same instrument.
33. CAPTIONS. Paragraph titles or captions contained herein are inserted
as a matter of convenience and for reference, and in no way define, limit,
extend or describe the scope of this Agreement or any provision hereof.
IN WITNESS WHEREOF, the parties hereto have put their hand and seal as of
the date set forth above.
Executed by Purchaser on PURCHASER:
June 30, 1996.
SHERMAN OAKS LIMITED PARTNERSHIP
By: /s/Sherman Oaks Limited Partnership
by Stanley Canter, G.P.
------------------------------------
Executed by Seller on SELLER:
July 5, 1996.
SHADOWRIDGE INVESTORS, an Illinois
Joint Venture
By: Shadowridge Associates, an Illinois
limited partnership, a joint venture partner
By: Balcor Realty Associates-VI,
an Illinois general partnership
By: The Balcor Company, a
Delaware corporation
By: /s/Phillip A. Schechter
-------------------------
Authorized Agent
By: S-R Investors, an Illinois limited
partnership, a joint venture partner
By: Balcor Partners-XVIII, an Illinois
general partnership
By: The Balcor Company, a
Delaware corporation
By: /s/Phillip A. Schechter
-------------------------
Authorized Agent
Shadow Ridge
CB Commercial Real Estate Group Inc. ("Broker") executes this Agreement in its
capacity as a real estate broker and acknowledges that the fee or commission
("Fee") due to it as a result of the transaction described in this Agreement is
the amount as set forth in the listing agreement between Broker and Seller.
Broker also acknowledges that payment of the aforesaid Fee is conditioned upon
the Closing and the receipt of the Purchase Price by the Seller. Broker agrees
to deliver a receipt to the Seller at the Closing for the Fee and a release
stating that no other fees or commissions are due to Broker from Seller or
Purchaser.
CB COMMERCIAL REAL ESTATE GROUP
INC.
By:
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EXHIBITS
A - Legal
B - Personal Property
C - Escrow Agreement
D - Title Commitment
E - Deed
F - Bill of Sale
G - Assignment of Service Contracts
H - Assignment of Leases and Security Deposits
I - Notice to Tenants
J - Non-Foreign Affidavit
K - Rent Roll
L - Environmental Report