SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15 (d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of Report (date of earliest event reported) June 4, 1996
BALCOR PENSION INVESTORS
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Exact Name of Registrant
Illinois 0-9198
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State or other jurisdiction Commission file number
2355 Waukegan Road
Suite A200
Bannockburn, Illinois 36-2943462
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Address of principal I.R.S. Employer
executive offices Identification
Number
60015
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Zip Code
Registrant's telephone number, including area code:
(847) 267-1600
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ITEM 2. ACQUISITION OR DISPOSITION OF ASSETS
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a) Nob Hill Apartments, Phase I
The Partnership made a $1,507,144 loan collateralized by a wrap-around mortgage
on the Nob Hill Apartments, Phase I, Winter Park, Florida. The loan was funded
in installments during 1979, 1980 and 1981. The Partnership obtained title to
the property through foreclosure in 1992, subject to the existing first
mortgage loan held by an unaffiliated party. In 1994, the Partnership repaid
the first mortgage loan of $216,407.
On June 4, 1996, the Partnership contracted to sell the property for a sale
price of $4,775,000 to an unaffiliated party, Ceebraid-Signal Corporation, a
Florida corporation. The purchaser has deposited $150,000 into an escrow
account as earnest money and will pay the remaining $4,625,000 at closing,
scheduled for July 1, 1996. From the proceeds of the sale, the Partnership
will pay closing costs and $143,250 to an unaffiliated party as a brokerage
commission. Neither the General Partner nor any affiliate will receive a
brokerage commission in connection with the sale of the property. The General
Partner will be reimbursed by the Partnership for its actual expenses in
connection with the sale.
The closing is subject to the satisfaction of numerous terms and conditions.
There can be no assurance that all of the terms and conditions will be complied
with and, therefore, it is possible the sale of the property may not occur.
b) Huntington Plaza Shopping Center
As previously reported, on April 26, 1996, the Partnership contracted to sell
the Huntington Plaza Shopping Center, Huntington, Indiana, to an unaffiliated
party, J. Herzog & Sons, Inc. ("Herzog") for a sale price of $2,400,000.
Herzog subsequently assigned its rights under the contract to an affiliate,
Huntington #1 1996, LLC, a Colorado limited liability company. The sale closed
on May 23, 1996. The Partnership received approximately $306,000 in the form of
a purchase money note (the "Note") collateralized by a junior mortgage on the
property. After payment of sale costs and prorations of approximately $54,000,
the Partnership received cash of approximately $2,040,000. Neither the General
Partner, its affiliates nor any unaffiliated third party received a brokerage
commission in connection with the sale of the property. The General Partner
will be reimbursed by the Partnership for its actual expenses incurred in
connection with the sale.
As previously described, pursuant to an agreement executed in 1993 with the
holder of the second mortgage on the property (the "Second Mortgagee") at the
time the Partnership obtained title to the property, the Second Mortgagee was
entitled to a share of proceeds upon the sale of the property. The Second
Mortgagee has accepted an assignment of the Note as a portion of its share.
The Partnership and Second Mortgagee will receive approximately $1,873,000 and
$167,000, respectively, from the cash portion of the sale, subject to possible
adjustments in accordance with the agreement with the Second Mortgagee.
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ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS
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(a) FINANCIAL STATEMENTS AND EXHIBITS:
None
(B) PRO FORMA FINANCIAL INFORMATION:
None
(C) EXHIBITS:
(2) Agreement of Sale and attachment thereto relating to the sale of
Nob Hill Apartments, Winter Park, Florida.
No information is required under Items 1, 3, 4, 5, 6 and 8 and these
items have, therefore, been omitted.
Signature
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Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this Report to be signed on its behalf by the
undersigned hereunto duly authorized.
BALCOR PENSION INVESTORS
By: Balcor Mortgage Advisors, an Illinois
general partnership, its general
partner
By: RGF-Balcor Associates,
an Illinois general partnership,
a partner
By: The Balcor Company,
a Delaware corporation,
a partner
By: /s/ Jerry M. Ogle
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Jerry M. Ogle, Vice President
and Secretary
Dated: June 18, 1996
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5/22/96
Nob Hill
AGREEMENT OF SALE
THIS AGREEMENT, entered into as of the 30th day of May, 1996, by and
between CEEBRAID-SIGNAL CORPORATION, a Florida corporation ("Purchaser") and
BON HILL LIMITED PARTNERSHIP, an Illinois Limited Partnership ("Seller").
WITNESSETH:
1. PURCHASE AND SALE. Purchaser agrees to purchase and Seller agrees to
sell at the price of Four Million Seven Hundred Seventy-Five Thousand and
No/100 Dollars ($4,775,000.00) ("Purchase Price"), that certain real property
in Orange County, Florida, more particularly described on Exhibit A attached
hereto, which Property is known as Nob Hill Apartments, together with all
easements, permits, development rights, leases, and appurtenances thereto and
improvements thereon (the "Real Property"). Included in the Purchase Price is
all of the personal property set forth on Exhibit B (the "Personal Property"),
which shall be transferred to Purchaser at Closing (as hereinafter defined) by
a Bill of Sale. The Real Property and the Personal Property are hereinafter
collectively referred to as the "Property".
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), $4,775,000.00
(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.
3. TITLE COMMITMENT AND SURVEY.
a. Attached hereto as Exhibit D is a title commitment dated
April 22, 1996 ("Title Commitment") for an owner's marketability title
insurance policy ("Title Policy") issued by Chicago 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, and the special title exceptions set forth in Schedule B, Numbers 4
through 11, 13 and 14, inclusive of the Title Commitment. All of the above are
herein referred to as the "Permitted Exceptions". On the Closing Date, Seller
shall cause the Title Insurer to issue the Title Policy or a "marked up"
commitment in conformity with the Title Commitment. Purchaser shall pay the
costs of the Title Policy, including "extended coverage" and any special
endorsements which Purchaser requires.
b. Purchaser acknowledges receipt of a survey ("Survey") of the
Property prepared by Sears Surveying Company revised as of February 22, 1995,
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and Purchaser approves all of the matters set forth on the Survey. If
Purchaser requires an updated Survey, Purchaser shall order and pay for same.
4. 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.
5. PAYMENT OF CLOSING COSTS. Purchaser shall pay the costs of all
documentary stamps 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.
However, Seller shall pay for the recording charges pertaining to any
instruments required to cure title defects.
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 either party can elect to terminate this Agreement by notice
to the other party within fifteen (15) days after receipt of notice of the
casualty. If neither party elects to terminate, then Purchaser shall elect,
within the aforesaid fifteen (15) day period to either (i) 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,
but in no event shall the Closing be extended for more than ninety (90) days or
(ii) accept the Property in its damaged condition together with an assignment
from Seller of all insurance proceeds and receive a credit at Closing in the
amount of the deductible.
b. If condemnation proceedings ("Proceedings") are instituted
against the Property, 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.
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7. AS-IS CONDITION.
a. Seller acquired title to the Property by virtue of a deed in
lieu of foreclosure, and therefore, Seller cannot make any representations as
to the condition of the Property upon which Purchaser can rely. Any
information which Seller has as to the leases is based solely upon information
which Seller obtained subsequent to its acquisition of the Property. Purchaser
is not relying on Seller having made any inquiry as to the condition of the
Property or the leases. 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 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. e 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. e 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,
<PAGE>
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.
8. CLOSING. The closing ("Closing") of this transaction shall be on
July 1, 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; 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 ("Service
Contracts") (in the form of Exhibit G attached hereto); an executed assignment
and assumption of all leases ("Leases") and security deposits (in the form of
Exhibit H attached hereto); updated Rent Roll (as that term is hereinafter
defined); 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.
<PAGE>
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. 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.
11. SELLER'S DEFAULT. IF THIS SALE IS NOT COMPLETED BECAUSE OF SELLER'S
DEFAULT, PURCHASER'S SOLE REMEDY SHALL BE THE RIGHT TO RECOVER ACTUAL THIRD
PARTY COSTS INCURRED IN CONDUCTING ITS INVESTIGATION DURING THE APPROVAL PERIOD
INCLUDING REASONABLE ATTORNEY'S FEES AND COSTS IN AN AMOUNT NOT TO EXCEED
$150,000.00 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 OR THE DOCUMENTS REQUIRED TO BE DELIVERED 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 12:01 A.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 Seller's pro rata share of the first rent collected by Purchaser during
the calendar month in which the Closing occurs 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. Purchaser
<PAGE>
shall have no obligation to actively pursue collection of Delinquent Rent which
is in arrears for more than thirty (30) days.
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 Approval Period. However, Purchaser shall
remain liable for all of the Purchaser's obligations and undertakings set forth
in this Agreement and the exhibits attached hereto.
15. BROKER. The parties hereto acknowledge that Cushman & Wakefield of
Florida, Inc. ("Broker") is the only real estate broker involved in this
transaction. Seller agrees to pay Broker a commission or fee ("Fee") pursuant
to a listing agreement between Seller and Broker. However, this Fee is due and
payable only from the proceeds of the Purchase Price received by Seller.
Purchaser agrees to indemnify, defend and hold harmless the Seller and any
partner, affiliate, parent of Seller, and all shareholders, employees, officers
and directors of Seller or Seller's partner, parent or affiliate (each of the
above is individually referred to as a "Seller Indemnitee") from all claims,
including attorneys' fees and costs incurred by a Seller Indemnitee as a result
of anyone's claiming by or through Purchaser any fee, commission or
compensation on account of this Agreement, its negotiation or the sale hereby
contemplated. Purchaser does now and shall at all times consent to a Seller
Indemnitee's selection of defense counsel. Seller agrees to indemnify, defend
and hold harmless the Purchaser and all shareholders, employees, officers and
directors of Purchaser or Purchaser's parent or affiliate (each of the above is
individually referred to as a "Purchaser Indemnitee") from all claims,
including attorneys' fees and costs incurred by a Purchaser Indemnitee as a
result of anyone's claiming by or through Seller any fee, commission or
compensation on account of this Agreement, its negotiation or the sale hereby
contemplated. Seller does now and shall at all times consent to a Purchaser
Indemnitee's selection of defense counsel.
16. DOCUMENTS, INSPECTION OF PROPERTY AND APPROVAL PERIOD.
a. Seller has delivered to Purchaser copies of the most recent
available tax bills, rent rolls, insurance premiums, 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 Daylight
Time) on May 29, 1996 ("Approval Period"). During the Approval Period, upon
reasonable notice to the Seller, the Purchaser shall have the right to inspect
and approve the condition of the Property including the interior of the
apartments, during normal business hours. Purchaser, its engineers,
architects, employees, contractors and agents shall maintain public liability
insurance policies insuring against claims arising as a result of the
inspections of the Property being conducted by Purchaser. Prior to commencing
any tests, studies and investigations, Purchaser shall deliver to Seller a
certificate of insurance evidencing the existence of the aforesaid policies and
naming Seller as an additional insured. Purchaser agrees to indemnify, defend,
<PAGE>
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 in Purchaser's sole and absolute discretion, it must be by a notice
("Notice of Disapproval") delivered to Seller and the Escrow Agent prior to the
expiration of the Approval Period. Upon receipt of the Notice of Disapproval,
the Earnest Money plus the interest accrued thereon shall be returned to the
Purchaser. If Purchaser does not deliver a Notice of Disapproval to Seller,
then it shall be conclusively presumed that Purchaser has approved the
Documents and the condition of the Property.
17. SURVIVAL OF INDEMNITIES. Notwithstanding anything in this Agreement
to the contrary, each parties' obligation to indemnify, defend and hold the
other party harmless under various provisions of this Agreement shall forever
survive the termination of this Agreement or the Closing and delivery and
recording of the Deed.
18. SELLER'S REPRESENTATIONS, WARRANTIES AND COVENANTS.
a. Any reference herein to Seller's knowledge, representation,
warranty or notice of any matter or thing, shall only mean such knowledge or
notice that has actually been received by Phillip Schechter and Michael Becker,
the asset manager of the Property, and any representation or warranty of the
Seller is based upon those matters of which Phillip Schechter or Michael Becker
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.
<PAGE>
iv. The Seller is an Illinois limited partnership in good
standing and its general partner is an Illinois corporation in good
standing.
v. The execution of this Agreement and completion of the
transaction contemplated herein shall not constitute a default under
any other agreements by which Seller is bound.
vi. Seller has not made any prior assignment of the Service
Contracts. No other third party has a beneficial interest in the
Service Contracts.
vii. The Service Contracts listed on the Assignment of Service
Contracts are the only service contracts affecting the Property.
viii. The Service Contracts are in full force and effect and
Seller does not know of the existence of any default under any of the
Service Contracts.
ix. Seller has not made any prior assignment of the Leases. No
other third party has a beneficial interest in the Leases.
x. The Leases listed on the Rent Roll attached hereto are the
only Leases affecting the Property.
xi. Except as may be set forth on the delinquency report
attached to the Rent Roll to be delivered on the Closing Date, all of
the Leases will be in full force and effect and not in default.
c. Covenants.
i. The management, operation, leasing and maintenance of the
Property, as presently conducted by the Seller, shall continue until
the Closing Date.
ii. Seller shall notify Purchaser of any material change in the
Personal Property after the date of this Agreement.
19. 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. In the event of
termination, all Earnest Money plus the interest accrued thereon shall be
returned to Purchaser. If Purchaser fails to give Seller notice of a Breach,
then Purchaser shall have waived its rights to assert any claims for such
Breach.
20. ENVIRONMENTAL REPORT. Attached to this Agreement as Exhibit L are
the following reports ("Environmental Reports") of the Property, which Seller
is delivering to Purchaser, at Purchaser's request:
<PAGE>
a. Phase I Environmental Site Assessment prepared by Environmental
Management Group, Inc. dated March 13, 1995; and
b. Phase I Environmental Site Assessment and Limited Asbestos
Survey prepared by Law Associates, Inc. dated December 16, 1991.
Seller makes no representation or warranty that the Environmental Reports
are accurate or complete. Purchaser hereby releases Seller from any
liability whatsoever with respect to the Environmental Reports, including,
without limitation, the matters set forth in the Environmental Reports or
the accuracy and/or completeness of the Environmental Reports.
21. 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.
22. 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.
23. TIME OF ESSENCE. Time is of the essence of this Agreement.
24. 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
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
<PAGE>
Morton M. Poznak
Schwartz & Freeman
Suite 1900
401 North Michigan Avenue
Chicago, Illinois 60611
312/222-0800
312/222-0818 (FAX)
TO PURCHASER: Richard Schlesinger
Ceebraid-Signal Corporation
250 Australian Avenue South
Suite 1003
West Palm Beach, Florida 33401
561/835-4003
561/835-8356 (FAX)
with a copy to: Laurie L. Gildan
Greenberg, Traurig
777 S. Flagler Drive
Suite 310 East
West Palm Beach, Florida 33401
561/650-7924
561/655-6222 (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.
25. 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.
26. GOVERNING LAW. The provisions of this Agreement shall be governed by
the laws of the State of Florida.
27. 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.
<PAGE>
28. 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.
29. 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.
30. RADON GAS. Radon is a naturally occurring radioactive gas that, when
it has accumulated in a building in sufficient quantities, may present health
risks to persons who are exposed to it over time. Levels of radon that exceed
federal and state guidelines have been found in buildings in Florida.
Additional information regarding radon and radon testing may be obtained from
your county public health unit.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have put their hand and seal as of
the date set forth above.
Executed by Purchaser on PURCHASER:
May 30, 1996. CEEBRAID-SIGNAL CORPORATION
By: /s/Richard Schlesinger
----------------------------------
Marketing Director
Executed by Seller on SELLER:
June 4, 1996. BON HILL LIMITED PARTNERSHIP,
an Illinois limited partnership
By: Bon Hill Partners, Inc., an
Illinois corporation, its general
partner
By: /s/Phillip Schechter
------------------------------------
Authorized Agent
<PAGE>
Nob Hill
Cushman & Wakefield of Florida, 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.
CUSHMAN & WAKEFIELD OF FLORIDA,
INC.
By:
--------------------------------------
<PAGE>
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 Reports
<PAGE>
