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) September 9, 1996
BALCOR EQUITY PROPERTIES-XII
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Exact Name of Registrant
Illinois 0-11126
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State or other jurisdiction Commission file number
2355 Waukegan Road
Suite A200
Bannockburn, Illinois 36-3169763
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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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DeFoors Creek Apartments
In 1982, the Partnership acquired DeFoors Creek Apartments (formerly Noble
Creek Apartments), Atlanta, Georgia, utilizing approximately $6,986,000 in
offering proceeds. The property was acquired subject to first and second
mortgage financing totaling $10,035,000.
On September 9, 1996, the Partnership contracted to sell the property for a
sale price of $20,000,000 to an unaffiliated party, Lincoln Property Company
Southwest, Inc. The purchaser has deposited $100,000 into an escrow account as
earnest money and is obligated to deposit an additional $150,000 on or before
October 2, 1996. The remainder of the sale price will be payable in cash at
closing, anticipated to be November 1, 1996. From the proceeds of the sale,
the Partnership will pay the outstanding balances of the first and second
mortgage loans which are expected to be approximately $6,124,000 and
$2,641,000, respectively, at closing, and $200,000 to an unaffiliated party as
a brokerage commission. An affiliate of the third party providing property
management services for the property will receive a fee of $150,000 for
services rendered in connection with the sale of the property. The Partnership
will receive the remaining proceeds of approximately $10,885,000, less closing
costs. 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 incurred 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.
ITEM 5. OTHER EVENTS
Somerset Village Apartments
As previously reported, the Partnership has contracted to sell Somerset Village
Apartments, Tempe, Arizona, to TGM Realty Corp. #5, a Delaware corporation, for
a sale price of $11,100,000. The Partnership and the purchaser have agreed to
extend the closing from September 16, 1996 to September 30, 1996.
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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 De Foors Creek Apartments, Atlanta, Georgia.
(99) Letter Agreement relating to the sale of Somerset Village
Apartments, Tempe, Arizona.
.
No information is required under Items 1, 3, 4, 6 and 8 and these items
have, therefore, been omitted.
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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 EQUITY PROPERTIES-XII
By: Balcor Partners-XII, an Illinois general
partnership, its general partner
By: RGF-Balcor Associates-II, 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: September 18, 1996
<PAGE>
AGREEMENT OF SALE
THIS AGREEMENT OF SALE (this "Agreement"), is entered into as of the 9th
day of September, 1996, by and between LINCOLN PROPERTY COMPANY SOUTHWEST, INC.
("Purchaser"), and ROCLAB PARTNERS-I, an Illinois limited partnership
("Seller").
WITNESSETH:
1. PURCHASE AND SALE.
1.1 Purchaser agrees to purchase and Seller agrees to sell at the price
of Twenty Million And No/100 Dollars ($20,000,000.00) (the "Purchase Price"),
all of the following (collectively, the "Property"):
1.1.1 That certain real property (the "Land") located in Cobb
County, Georgia, as more particularly described on Exhibit A attached hereto,
together with all rights, titles, estates and interests of Seller in and to all
rights, benefits, privileges, tenements, hereditaments and appurtenances
thereon or in anywise appertaining to the Land, or owned by Seller and used in
connection with the Land.
1.1.2 An apartment complex building or buildings located upon the
Land and all other structures and improvements on the Land generally known as
the Defoors Creek Apartments (collectively, the "Improvements"), including,
without limitation, all mechanical, electrical, heating, air conditioning and
plumbing fixtures, systems and equipment.
1.1.3 All furniture and other furnishings, maintenance equipment
and tools, and all other machinery, equipment, fixtures, materials, supplies,
replacement parts and personal property of every kind and character, and all
accessories and additions thereto, owned by Seller, and located in or on, or
used or useful in connection with, the Land or the Improvements or the
operations thereon, including, without limitation, all such property listed on
Exhibit B attached hereto (the "Personal Property").
1.1.4 All leases and rental agreements with tenants in the
Improvements (the "Leases"), and all prepaid rentals and unapplied security
deposits paid under the Leases.
1.1.5 All service and utility contracts, maintenance agreements,
warranties, guaranties and bonds relating to the Land, the Improvements or the
Personal Property.
1.1.6 All telephone numbers and exchanges, if any, related to the
ownership, operation and management of the Improvements, and all keys to locks
of the Improvements.
1.1.7 All licenses, permits, governmental approvals or
authorizations and similar items relating to the operation of the Land or the
Improvements to the extent assignable.
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1.1.8 All intangible personal property now or hereafter owned by
Seller and used in the ownership or operation of the Land, Improvements or
Personal Property, including, without limitation the right to use any trade
names, logos or other intellectual property now used in connection with the
Land, Improvements or Personal Property, including, without limitation, the
name "Defoors Creek Apartments".
2. PURCHASE PRICE. The Purchase Price shall be paid by Purchaser as follows:
2.1 Within twenty-four hours after the date this Agreement has been
executed by Purchaser and Seller, Purchaser shall deliver to the Title Insurer
(as hereinafter defined) an earnest money deposit (the "Initial Earnest Money
Deposit") in the amount of One Hundred Thousand and No/100 Dollars
($100,000.00). The Initial Earnest Money Deposit shall be held in escrow by
the Title Insurer in accordance with the terms of the Escrow Agreement (the
"Escrow Agreement") attached hereto as Exhibit C. Any income or interest
earned on the Initial Earnest Money Deposit prior to the Closing shall be held
in the foregoing escrow account and shall be deemed a part of the Initial
Earnest Money Deposit. On or before 3:00 p.m. Eastern Daylight Time on the
last day of the Inspection Period (as hereinafter defined), Purchaser shall
deliver to Title Insurer additional earnest money in the amount of One Hundred
Fifty Thousand and No/100 Dollars ($150,000.00) (the "Additional Earnest Money
Deposit"). The Title Insurer shall hold and distribute the Additional Earnest
Money Deposit in the same manner as the Initial Earnest Money Deposit and
pursuant to the terms of the Escrow Agreement. The Initial Earnest Money
Deposit and the Additional Earnest Money Deposit hereinafter shall be referred
to collectively as the "Earnest Money Deposit."
2.2 On the "Closing Date" (hereinafter defined), the balance of the
Purchase Price, adjusted in accordance with the prorations set forth on the
closing statement, by federally wired "immediately available" funds, on or
before 11:00 a.m Chicago time.
3. INSPECTION DOCUMENTS. The following documents constitute the documents to
be reviewed and approved by Purchaser during the Inspection Period and shall
hereinafter be referred to as the "Inspection Documents".
3.1 Within five (5) days after the full execution of this Agreement,
Seller shall cause Piedmont Title Insurance Agency, Inc., on behalf of
Commonwealth Land Title Insurance Company (the "Title Insurer"), to issue its
Commitment for Title Insurance (the "Title Commitment") in form which contains
the Title Insurer's express commitment to issue a standard ALTA (Form B-1970)
owners policy of title insurance (the "Title Policy") to Purchaser on the
Closing Date, together with true, correct, complete and legible copies of all
recorded documents affecting the Property and listed as title exceptions in the
Title Commitment. The Title Commitment shall be conclusive evidence of good
title as therein shown as to all matters to be insured by the title policy,
subject only to the exceptions therein stated. On the Closing Date, Title
Insurer shall deliver to Purchaser the Title Policy subject only to Permitted
Exceptions (hereinafter defined) and Unpermitted Exceptions (hereinafter
<PAGE>
defined) waived or deemed accepted by Purchaser in accordance with Paragraphs
3.7 and 5.1 hereof. Purchaser shall pay for the costs of the Title Commitment,
the Title Policy, and any endorsements thereto. Seller shall cooperate with
Purchaser and shall deliver to the Title Insurer such documents and
affidavits reasonably required by the Title Insurer to provide extended
coverage over the standard printed title exceptions contained in the Title
Commitment.
3.2 Purchaser has received a survey of the Property prepared by
Construction Engineering Associates, dated December 3, 1980 and last revised
December 12, 1985 (the "Existing Survey"). Seller, as soon as practicable
following the full execution of this Agreement, shall deliver an updated survey
(the "Updated Survey") to Purchaser. If the legal description of the Land
resulting from the Updated Survey is different from any legal description
attached hereto as of the date of this Agreement, or, if no legal description
is available as of the date hereof, then the legal description of the Land as
set forth on the Updated Survey approved by Seller and Purchaser shall be
incorporated herein for all purposes as Exhibit A hereafter and shall
constitute the legal description of the Land being purchased hereunder. If,
but only if the transaction contemplated hereby closes, Purchaser shall pay for
the cost of the Updated Survey.
3.3 Within five (5) days after the full execution of this Agreement,
Seller shall provide Purchaser with copies of all of the following information:
3.3.1 Ad valorem tax and assessment statements relating to the
Property for the year such taxes were last paid to the most recent tax year
and any information regarding any current valuation of the Land for ad valorem
tax and assessment purposes or notices relative to an anticipated change in
valuation for any and all ad valorem taxes and assessments.
3.3.2 Copies of all items listed in Paragraphs 1.1.5 and 1.1.7
above to the extent in Seller's possession.
3.3.3 Copies of operating statements reflecting the income and
expenses for the Property for 1995 and year-to-date 1996.
3.4 Attached hereto as Exhibit K is a certified rent roll (the "Rent
Roll") for the Property, prepared as of the 20th day of the month preceding the
month of delivery of such Rent Roll, reflecting the following with respect to
each Lease: (A) name of tenant; (B) apartment number; (C) monthly rental; (D)
amount of security deposit; and (E) expiration date.
3.5 The obligation of Purchaser to pay various costs set forth in this
Section 3 shall survive the termination of this Agreement.
3.6 If, after the examination of the Inspection Documents, Purchaser
determines that the title to or the condition or operation of the Property as
reflected in the Inspection Documents is unacceptable for any reason, Purchaser
shall notify Seller in writing ("Purchaser's Notice") of such unacceptable
exceptions or conditions (the "Inspection Document Objections") on or prior to
the date (the "Notification Date") that is the fifth (5th) day following the
<PAGE>
date on which Purchaser receives the Updated Survey. The failure of Purchaser
to notify Seller of any Inspection Document Objections relating to any of the
items described in this Section 3 on or before the Notification Date shall be
deemed acceptance by Purchaser of Seller's title to, survey of and operation of
the Property as reflected in the Inspection Documents.
3.7 If Purchaser provides Seller with Purchaser's Notice of any
Inspection Document Objections pursuant to Paragraph 3.6 hereof, Seller may,
but shall not be obligated to, take such actions as are necessary to eliminate
or modify such Inspection Document Objections to the satisfaction of Purchaser.
If Purchaser delivers Purchaser's Notice, Seller shall deliver written notice
to Purchaser within five (5) days thereafter stating whether, prior to Closing,
Seller shall remove at Seller's expense (or otherwise cure in a manner
reasonably satisfactory to Purchaser) such Inspection Document Objections.
Seller's failure timely to deliver notice of its election to remove or cure any
Inspection Document Objections as aforesaid shall be deemed Seller's election
not to remove or cure such Inspection Document Objections. If Seller elects or
is deemed to have elected not to remove or cure any Inspection Document
Objections, Purchaser shall have five (5) days thereafter to elect in writing
to either (a) waive its prior disapproval of such Inspection Document
Objections and proceed to consummate this transaction, in which event any such
Inspection Document Objections not removed or cured shall be deemed acceptable
to Purchaser or, (b) receive a return of the Earnest Money Deposit, following
which this Agreement shall terminate and none of the parties hereto shall have
any further duties, obligations or liabilities to each other hereunder.
Purchaser's failure timely to deliver notice of its election to either waive
its prior disapproval or receive a return of the Earnest Money Deposit as
aforesaid shall be deemed Purchaser's election to waive its prior disapproval
of such Inspection Document Objections. The exceptions to title described in
the Title Commitment that are not objected to by Purchaser or are deemed
accepted by Purchaser are called the "Permitted Exceptions." All other
exceptions to title shall be referred to as "Unpermitted Exceptions."
4. PAYMENT OF CLOSING COSTS. In addition to the costs set forth in Section
3, Seller shall pay the transfer tax associated with the sale, and Purchaser
shall pay all other costs of the documentary stamps to be paid with reference
to the "Deed" (hereinafter defined) and all other stamps, intangible,
documentary, recording, sales tax and surtax imposed by law with reference to
any other sale documents delivered in connection with the sale of the Property
to Purchaser and all other charges of the Title Insurer in connection with this
transaction. Seller and Purchaser each shall pay their respective attorney's
fees.
5. CONDITION OF TITLE.
5.1 If after the determination of the Permitted Exceptions and the
Unpermitted Exceptions pursuant to Paragraph 3.7 hereof, but prior to "Closing"
(as hereinafter defined), a date-down to the Title Commitment discloses any new
Unpermitted Exception, Seller shall have thirty (30) days from the date of the
date-down to the Title Commitment, at Seller's expense, to (i) bond over, cure
and/or have any Unpermitted Exceptions which, in the aggregate, do not exceed
$50,000.00 (a "Minor Unpermitted Exception"), removed from the Title Commitment
<PAGE>
or to have the Title Insurer commit to insure against loss or damage that may
be occasioned by such Unpermitted Exceptions, or (ii) have the right, but not
the obligation, to bond over, cure and/or have any Unpermitted Exceptions
which, in the aggregate, equal or exceed $50,000.00, removed from the Title
Commitment or to have the Title Insurer commit to insure against loss or damage
that may be occasioned by such Unpermitted Exceptions. In such event, the time
of Closing shall be delayed, if necessary, to give effect to said
aforementioned time periods. If Seller fails to cure or have said Unpermitted
Exception removed or have the Title Insurer commit to insure as specified above
within said thirty (30) day period or if Seller elects not to exercise its
rights under (ii) in the preceding sentence, Purchaser may terminate this
Agreement upon notice to Seller within five (5) days after the expiration of
said thirty (30) day period; provided however, and notwithstanding anything
contained herein to the contrary, if the Unpermitted Exception which gives rise
to Purchaser's right to terminate was recorded against the Property as a result
of the affirmative, willful action of Seller (and not by any unrelated third
party) or if Seller is able to bond over, cure or remove a Minor Unpermitted
Exception for a cost not to exceed $50,000 or the Title Insurer is willing to
insure over a Minor Unpermitted Exception for a cost not to exceed $50,000 in
accordance with the terms hereof and Seller fails to expend such funds in
either case, then Purchaser shall have the additional rights contained in
Paragraph 11 herein. Absent notice from Purchaser to Seller in accordance with
the preceding sentence, Purchaser shall be deemed to have elected to take title
subject to said Unpermitted Exception. If Purchaser terminates this Agreement
in accordance with the terms of this Paragraph 5.1, this Agreement shall become
null and void without further action of the parties and all Earnest Money
theretofore deposited into the escrow by Purchaser together with any interest
accrued thereon, shall be returned to Purchaser, and neither party shall have
any further liability to the other, except for Purchaser's obligation to
indemnify Seller and restore the Property, as more fully set forth in
Paragraph 7.
5.2 Seller agrees to convey fee simple title to the Property to Purchaser
by special warranty deed (the "Deed") in recordable form subject only to the
Permitted Exceptions and any Unpermitted Exceptions waived or deemed accepted
by Purchaser in accordance with Paragraphs 3.7 and 5.1 hereof.
6. CONDEMNATION, EMINENT DOMAIN, DAMAGE AND CASUALTY.
6.1 Except as provided in the indemnity provisions contained in
Paragraph 7.1 of this Agreement, Seller shall bear all risk of loss with
respect to the Property up to the earlier of the dates upon which either
possession or title is transferred to Purchaser in accordance with this
Agreement. Notwithstanding the foregoing, in the event of damage to the
Property by fire or other casualty prior to the Closing Date, repair of which
would cost less than or equal to $50,000.00 (as determined by Seller in good
faith and reasonably acceptable to Purchaser in good faith) Purchaser shall not
have the right to terminate its obligations under this Agreement by reason
thereof, but Seller shall have the right to elect to either repair and restore
the Property (in which case the Closing Date shall be extended until completion
of such restoration) or to assign and transfer to Purchaser on the Closing Date
all of Seller's right, title and interest in and to all insurance proceeds paid
<PAGE>
or payable to Seller on account of such fire or casualty, and Seller shall pay
to Purchaser at the Closing the amount of Seller's insurance deductible.
Seller shall promptly notify Purchaser in writing of any such fire or other
casualty and Seller's reasonable determination of the cost to repair the damage
caused thereby. In the event of damage to the Property by fire or other
casualty prior to the Closing Date, repair of which would cost in excess of
$50,000.00 (as determined by Seller in good faith), then this Agreement may be
terminated at the option of Purchaser, which option shall be exercised, if at
all, by Purchaser's written notice thereof to Seller within ten (10) business
days after Purchaser receives written notice of such fire or other casualty and
Seller's reasonable determination of the amount of such damages, and upon the
exercise of such option by Purchaser this Agreement shall become null and void,
the Earnest Money deposited by Purchaser shall be returned to Purchaser
together with interest thereon, and neither party shall have any further
liability or obligations hereunder. In the event that Purchaser does not
exercise the option set forth in the preceding sentence, the Closing shall take
place on the Closing Date and Seller shall assign and transfer to Purchaser on
the Closing Date all of Seller's right, title and interest in and to all
insurance proceeds paid or payable to Seller on account of the fire or
casualty, and Seller shall pay to Purchaser at the Closing the amount of
Seller's insurance deductible.
6.2 If between the date of this Agreement and the Closing Date, Seller
receives written notice of any condemnation or eminent domain proceedings which
are initiated and which might result in the taking of any part of the Property
or the taking or closing of any right of access to the Property, Seller shall
immediately notify Purchaser of such occurrence. In the event that the taking
of any part of the Property shall: (i) impair access to the Property; (ii)
cause any non-compliance with any applicable law, ordinance, rule or regulation
of any federal, state or local authority or governmental agencies having
jurisdiction over the Property or any portion thereof, or (iii) adversely
impair the use of the Property or any portion thereof as it is currently being
operated (hereinafter collectively referred to as a "Material Event"),
Purchaser may:
6.2.1 terminate this Agreement by written notice to Seller, in
which event the Earnest Money deposited by Purchaser, together with interest
thereon, shall be returned to Purchaser and all rights and obligations of the
parties hereunder with respect to the closing of this transaction will cease;
or
6.2.2 proceed with the Closing, in which event Seller shall
assign to Purchaser all of Seller's right, title and interest in and to any
award made in connection with such condemnation or eminent domain proceedings.
6.3 Purchaser shall notify Seller, within ten (10) business days after
Purchaser's receipt of Seller's notice, whether Purchaser elects to exercise
its rights under Paragraph 6.2.1 or Paragraph 6.2.2. Closing shall be delayed,
if necessary, until Purchaser makes such election. If Purchaser fails to make
an election within such ten (10) business day period, Purchaser shall be deemed
to have elected to exercise its rights under Paragraph 6.2.2. If between the
<PAGE>
date of this Agreement and the Closing Date, any condemnation or eminent domain
proceedings are initiated which do not constitute a Material Event, Purchaser
shall be required to proceed with the Closing, in which event Seller shall
assign to Purchaser all of Seller's right, title and interest in and to any
award made in connection with such condemnation or eminent domain proceedings.
7. INSPECTION AND AS-IS CONDITION.
7.1 During the period that commenced on June 28, 1996 and ends at
5:00 p.m. Chicago time on October 2, 1996 (said period being herein referred to
as the "Inspection Period"), Purchaser and the agents, engineers, employees,
contractors and surveyors retained by Purchaser may enter upon the Property, at
any reasonable time and upon reasonable prior notice to Seller, to inspect the
Property, including a review of leases located at the Property, and to conduct
and prepare such studies, tests and surveys as Purchaser may deem necessary and
appropriate. In connection with Purchaser's review of the Property, and in
addition to those documents delivered pursuant to Article 3 hereof, Seller
agrees to deliver to Purchaser, if in Seller's possession, within five (5) days
after the execution of this Agreement, an environmental report for the
Property, plans and specifications, current marketing reports, current list of
employees with salaries, date of hire, and bonus arrangements (if any), pest
control/termite report, certificates of occupancy, and licenses and use
permits.
All of the foregoing tests, investigations and studies to be conducted
under this Paragraph 7.1 by Purchaser shall be at Purchaser's sole cost and
expense and Purchaser shall restore the Property to the condition existing
prior to the performance of such tests or investigations by or on behalf of
Purchaser. Purchaser shall defend, indemnify and hold Seller and any
affiliate, parent of Seller, and all shareholders, employees, officers and
directors of Seller or Seller's affiliate or parent (hereinafter collectively
referred to as "Affiliate of Seller") harmless from any and all liability, cost
and expense (including without limitation, reasonable attorney's fees, court
costs and costs of appeal) suffered or incurred by Seller or Affiliates of
Seller for injury to persons or property caused by Purchaser's investigations
and inspection of the Property. Purchaser shall undertake its obligation to
defend set forth in the preceding sentence using attorneys selected by Seller
and reasonably acceptable to Purchaser.
Prior to commencing any such tests, studies and investigations, Purchaser
shall furnish to Seller a certificate of insurance evidencing comprehensive
general public liability insurance insuring the person, firm or entity
performing such tests, studies and investigations and listing Seller and
Purchaser as additional insureds thereunder.
If Purchaser is dissatisfied (for any reason whatsoever, in Purchaser's
sole and absolute discretion) with the results of the tests, studies or
investigations performed or information received pursuant to this Article 7,
Purchaser shall have the right to terminate this Agreement by giving written
notice of such termination to Seller at any time prior to the expiration of the
Inspection Period. If written notice is not given by Purchaser pursuant to
this Paragraph 7.1 prior to the expiration of the Inspection Period, then the
right of Purchaser to terminate this Agreement pursuant to this Paragraph 7.1
shall be waived. If Purchaser terminates this Agreement by written notice to
Seller prior to the expiration of the Inspection Period: (i) Purchaser shall
promptly deliver to Seller copies of all studies, reports and other
investigations obtained by Purchaser in connection with its due diligence
during the Inspection Period; and (ii) the Earnest Money deposited by Purchaser
shall be immediately paid to Purchaser, together with any interest earned
<PAGE>
thereon, and neither Purchaser nor Seller shall have any right, obligation or
liability under this Agreement, except for Purchaser's obligation to indemnify
Seller and restore the Property, as more fully set forth in this Paragraph 7.1.
Notwithstanding anything contained herein to the contrary, Purchaser's
obligation to indemnify Seller and restore the Property, as more fully set
forth in this Paragraph 7.1, shall survive the Closing and the delivery of the
Deed and termination of this Agreement.
7.2 Except as otherwise provided in Section 16 of this Agreement, Seller
has made no representations or warranties relating to the condition of the
Property or the Personal Property. Purchaser acknowledges and agrees that it
will be purchasing the Property and the Personal Property based solely upon its
inspections and investigations of the Property and the Personal Property, and
that, except for the representations and warranties provided in Section 16 of
this Agreement, Purchaser will be purchasing the Property and the Personal
Property "AS IS" and "WITH ALL FAULTS", based upon the condition of the
Property and the Personal Property as of the date of this Agreement, reasonable
wear and tear and loss by fire or other casualty or condemnation excepted.
Without limiting the foregoing, Purchaser acknowledges that, except as may
otherwise be specifically set forth elsewhere in this Agreement, neither Seller
nor its consultants, brokers or agents have made any representations or
warranties of any kind upon which Purchaser is relying as to any matters
concerning the Property or the Personal Property, including, but not limited
to, the condition of the land or any improvements comprising the Property, the
existence or non-existence of Hazardous Materials (as hereinafter defined),
economic projections or market studies concerning the Property, any development
rights, taxes, bonds, covenants, conditions and restrictions affecting the
Property, water or water rights, topography, drainage, soil, subsoil of the
Property, the utilities serving the Property or any zoning or building laws,
rules or regulations or Environmental Laws (hereinafter defined) affecting the
Property. Seller makes no representation or warranty that the Property
complies with Title III of the Americans with Disabilities Act or any fire code
or building code. Except for a breach by Seller of its representations and
warranties set forth in Section 16 of this Agreement, Purchaser hereby releases
Seller and the Affiliates of Seller from any and all liability in connection
with any claims which Purchaser may have against Seller or the Affiliates of
Seller, and Purchaser hereby agrees not to assert any claims for contribution,
cost recovery or otherwise, against Seller or the Affiliates of Seller,
relating directly or indirectly to the existence of asbestos or Hazardous
Materials on, or environmental conditions of, the Property, whether known or
unknown. As used herein, "Environmental Laws" means all federal, state and
local statutes, codes, regulations, rules, ordinances, orders, standards,
permits, licenses, policies and requirements (including consent decrees,
judicial decisions and administrative orders) relating to the protection,
preservation, remediation or conservation of the environment or worker health
or safety, all as amended or reauthorized, or as hereafter amended or
reauthorized, including without limitation, the Comprehensive Environmental
Response, Compensation and Liability Act ("CERCLA"), 42 U.S.C. Section 9601 et
seq., the Resource Conservation and Recovery Act of 1976 ("RCRA"), 42 U.S.C.
Section 6901 et seq., the Emergency Planning and Community Right-to-Know Act
("Right-to-Know Act"), 42 U.S.C. Section 11001 et seq., the Clean Air Act
<PAGE>
("CAA"), 42 U.S.C. Section 7401 et seq., the Federal Water Pollution Control
Act ("Clean Water Act"), 33 U.S.C. Section 1251 et seq., the Toxic Substances
Control Act ("TSCA"), 15 U.S.C. Section 2601 et seq., the Safe Drinking Water
Act ("Safe Drinking Water Act"), 42 U.S.C. Section 300f et seq., the Atomic
Energy Act ("AEA"), 42 U.S.C. Section 2011 et seq., the Occupational Safety and
Health Act ("OSHA"), 29 U.S.C. Section 651 et seq., and the Hazardous Materials
Transportation Act (the "Transportation Act"), 49 U.S.C. Section 1802 et seq.
As used herein, "Hazardous Materials" means: (1) "hazardous substances," as
defined by CERCLA; (2) "hazardous wastes," as defined by RCRA; (3) any
radioactive material including, without limitation, any source, special nuclear
or by-product material, as defined by AEA; (4) asbestos in any form or
condition; (5) polychlorinated biphenyls; and (6) any other material, substance
or waste to which liability or standards of conduct may be imposed under any
Environmental Laws. Notwithstanding anything contained herein to the contrary,
Purchaser's obligations, as more fully set forth in this Paragraph 7.2 shall
survive the Closing and the delivery of the Deed and termination of this
Agreement.
7.3 Seller has provided or hereafter will provide 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 and
the Affiliates of Seller from any liability with respect to such historical
information. Notwithstanding anything contained herein to the contrary,
Purchaser's obligations, as more fully set forth in this Paragraph 7.3 shall
survive the Closing and the delivery of the Deed and termination of this
Agreement.
7.4 Seller has provided to Purchaser the following existing report:
Phase I Environmental Site Assessment Report, prepared by EMG, dated May 15,
1996 ("Existing Report"). Seller makes no representation or warranty
concerning the accuracy or completeness of the Existing Report. Purchaser
hereby releases Seller and the Affiliates of Seller from any liability
whatsoever with respect to the Existing Report, or, including, without
limitation, the matters set forth in the Existing Report, and the accuracy
and/or completeness of the Existing Report. Furthermore, Purchaser
acknowledges that it will be purchasing the Property with all faults disclosed
in the Existing Report. Notwithstanding anything contained herein to the
contrary, Purchaser's obligations, as more fully set forth in this
Paragraph 7.4 shall survive the Closing and the delivery of the Deeds and
termination of this Agreement.
<PAGE>
8. CLOSING. The closing of this transaction (the "Closing") shall be on the
date (the "Closing Date") which is the later to occur of (a) the thirtieth
(30th) day after the expiration of the Inspection Period, and (b) the twentieth
(20th) day after the Notification Date, at the office of Title Insurer,
Atlanta, Georgia, at which time Seller shall deliver possession of the Property
to Purchaser. This transaction shall be closed through an escrow with Title
Insurer, in accordance with the general provisions of the usual and customary
form of deed and money escrow for similar transactions in Georgia, or at the
option of either party, the Closing shall be a "New York style" closing at
which the Purchaser shall wire the Purchase Price to Title Insurer on the
Closing Date and prior to the release of the Purchase Price to Seller,
Purchaser shall receive the Title Policy or marked up commitment dated the date
of the Closing Date. In the event of a New York style closing, Seller shall
deliver to Title Insurer any customary affidavit in connection with a New York
style closing. All closing and escrow fees shall be paid by Purchaser.
9. CLOSING DOCUMENTS.
9.1 On the Closing Date, Seller and Purchaser shall execute and deliver
to the Title Insurer closing statements in form customarily used by the Title
Insurer. In addition, Purchaser shall deliver to Seller the balance of the
Purchase Price, an assumption of the documents set forth in Paragraph 9.2.3
and 9.2.4 and such other documents as may be reasonably required by the Title
Insurer in order to consummate the transaction as set forth in this Agreement.
9.2 On the Closing Date, Seller shall deliver to Purchaser the following:
9.2.1 the Deed (in the form of Exhibit D attached hereto),
subject to Permitted Exceptions and those Unpermitted Exceptions waived or
deemed accepted by Purchaser in accordance with Paragraph 5.1 hereof, if any;
9.2.2 a quit claim bill of sale conveying the Personal Property
(in the form of Exhibit E attached hereto);
9.2.3 assignment and assumption of intangible property (in the
form attached hereto as Exhibit F including, without limitation, the service
contracts listed in Exhibit G;
9.2.4 an assignment and assumption of leases and security
deposits (in the form attached hereto as Exhibit H);
9.2.5 non-foreign affidavit (in the form of Exhibit I attached
hereto);
9.2.6 original, and/or copies of, leases affecting the Property
in Seller's possession which will be delivered at the Property;
9.2.7 all documents and instruments reasonably required by the
Title Insurer to issue the Title Policy (including such documents and
affidavits reasonably required by the Title Insurer to provide extended
coverage over the standard printed title exceptions contained in the Title
Commitment);
<PAGE>
9.2.8 possession of the Property to Purchaser, effective as of
the Closing Date;
9.2.9 evidence of the termination of the management agreement,
effective as of the Closing Date;
9.2.10 notice to the tenants of the Property of the transfer of
title and assumption by Purchaser of the landlord's obligation under the leases
and the obligation to refund the security deposits (in the form of Exhibit J);
and
9.2.11 a certified updated rent roll in the form of Exhibit K
dated within five (5) days of the Closing.
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 THIS SALE IS NOT COMPLETED BECAUSE OF A
DEFAULT OF THE PURCHASER UNDER THE PROVISIONS OF THIS AGREEMENT AFTER PURCHASER
HAS RECEIVED WRITTEN NOTICE FROM SELLER SPECIFYING SUCH DEFAULT, SELLER SHALL
RETAIN ALL OF THE EARNEST MONEY AND THE INTEREST THEREON AS SELLER'S SOLE AND
EXCLUSIVE RIGHT TO DAMAGES OR ANY OTHER REMEDY, EXCEPT FOR PURCHASER'S
OBLIGATIONS TO INDEMNIFY SELLER AND RESTORE THE PROPERTY AS SET FORTH IN
PARAGRAPH 7.1 HEREOF. THE PARTIES HAVE AGREED THAT SELLER'S ACTUAL DAMAGES, IN
THE EVENT OF A DEFAULT BY PURCHASER, WOULD BE EXTREMELY DIFFICULT OR
IMPRACTICAL TO DETERMINE. THEREFORE, BY PLACING THEIR INITIALS BELOW, THE
PARTIES ACKNOWLEDGE THAT THE 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 RETURN OF ALL EARNEST MONEY
TOGETHER WITH ANY INTEREST ACCRUED THEREON, AND THIS AGREEMENT SHALL THEN
BECOME NULL AND VOID AND OF NO EFFECT AND THE PARTIES SHALL HAVE NO FURTHER
LIABILITY TO EACH OTHER AT LAW OR IN EQUITY, EXCEPT FOR PURCHASER'S OBLIGATIONS
TO INDEMNIFY SELLER AND RESTORE THE PROPERTY AS SET FORTH MORE FULLY IN
PARAGRAPH 7. NOTWITHSTANDING ANYTHING CONTAINED HEREIN TO THE CONTRARY, IF
SELLER'S DEFAULT IS (i) ITS (AND NOT AN UNRELATED THIRD PARTY'S) AFFIRMATIVE,
WILLFUL ACTION WHICH RESULTS IN THE RECORDING OF AN ENCUMBRANCE AGAINST THE
PROPERTY WHICH GIVES RISE TO PURCHASER'S RIGHT TO TERMINATE THIS AGREEMENT
PURSUANT TO PARAGRAPH 5 HEREOF; (ii) ITS FAILURE TO EXPEND UP TO $50,000 IF (A)
SELLER IS ABLE TO BOND OVER, CURE OR REMOVE A MINOR UNPERMITTED EXCEPTION FOR A
COST NOT TO EXCEED $50,000 OR (B) THE TITLE INSURER IS WILLING TO INSURE OVER A
MINOR UNPERMITTED EXCEPTION FOR A COST NOT TO EXCEED $50,000 IN ACCORDANCE WITH
THE TERMS HEREOF, OR (iii) ITS WILLFUL REFUSAL TO PERFORM ITS COVENANTS AND
OBLIGATIONS UNDER THIS AGREEMENT, THEN PURCHASER WILL BE ENTITLED TO SUE FOR
SPECIFIC PERFORMANCE.
12. PRORATIONS.
12.1 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; real and personal property taxes; and other similar items shall
<PAGE>
be adjusted ratably as of 11:59 p.m. on the Closing Date, and credited to the
balance of the cash due at Closing. Assessments payable in installments which
are due subsequent to the Closing Date shall be paid by Purchaser and, if
applicable, adjusted ratably on the Closing Date. If the amount of any of the
items to be prorated is not then ascertainable, the adjustments thereof shall
be on the basis of the most recent ascertainable data. If any of the
prorations provided for in this Paragraph 12.1 are not based upon the actual
amounts of such prorated matters for the calendar year or month, as applicable,
in which the Closing occurs, the parties shall adjust such prorations when the
actual amounts of such prorated matters are known. The terms and provisions of
this Paragraph 12.1 shall survive the Closing for a period of ninety (90) days.
12.2 Seller shall retain title to all delinquent rents existing as of the
Closing Date under the Leases, and shall have the right to collect such
delinquent rents at Seller's sole cost and expense. In pursuance of such
collection efforts, Seller shall have the right to initiate legal proceedings
against any delinquent tenant for such delinquent rents, but, in connection
therewith, Seller in no event shall be permitted to initiate any type of
eviction proceeding or otherwise seek to dispossess any such delinquent tenant
from its leased premises at the Property. Purchaser shall cooperate with
Seller in connection with Seller's collection efforts, and Purchaser shall
promptly remit to Seller all Post-Closing Receipts (hereinafter defined)
received by Purchaser after the Closing. All rents that (i) are received after
the Closing Date from any delinquent tenants, and (ii) are not designated by
such tenants to be an account of their obligations for any period before the
Closing, shall be applied first against the then current portion of such
tenant's rent obligation and then (and only then) the balance thereof (a
"Post-Closing Receipt") against the delinquent portion due to Seller. Seller
retains the right for a period of one hundred twenty (120) days following the
Closing to conduct an audit, at reasonable times and upon reasonable notice, of
Purchaser's books and records to verify the accuracy of the Post-Closing
Receipts and upon the verification of additional funds owing to Seller,
Purchaser shall pay to Seller said additional Post-Closing Receipts.
Paragraph 12.2 of this Agreement shall survive the Closing and the delivery and
recording of the deed.
13. RECORDING. Neither this Agreement nor a memorandum thereof shall be
recorded and the act of recording by Purchaser shall be an act of default
hereunder by Purchaser and subject to the provisions of Paragraph 10 hereof.
14. ASSIGNMENT. 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 10 hereof. Notwithstanding the
foregoing, Purchaser may assign its interest in this Agreement without the
consent of Seller to an entity in which Purchaser owns a controlling interest
or is an affiliate provided that Purchaser remains liable for and the assignee
assumes the obligations of Purchaser hereunder.
<PAGE>
15. BROKER. The parties hereto represent and warrant that no broker
commission or finder fee is due and payable in connection with this transaction
other than to Apartment Realty Advisors (to be paid by Seller). Seller's
commission to Apartment Realty Advisors shall only be payable out of the
proceeds of the sale of the Property in the event the transaction set forth
herein closes. Purchaser and Seller shall indemnify, defend and hold the other
party hereto harmless from any claim whatsoever (including without limitation,
reasonable attorney's fees, court costs and costs of appeal) from anyone
claiming by or through the indemnifying party any fee, commission or
compensation on account of this Agreement, its negotiation or the sale hereby
contemplated other than to Apartment Realty Advisors. The indemnifying party
shall undertake its obligations set forth in this Paragraph 15 using attorneys
selected by the indemnifying party and reasonably acceptable to the indemnified
party. The provisions of this Paragraph 15 will survive the Closing and
delivery of the Deed.
16. REPRESENTATIONS AND WARRANTIES.
16.1 Any reference herein to Seller's knowledge or notice of any matter or
thing shall only mean such knowledge or notice that has actually been received
by Daniel L. Charleston (the "Seller's Representative"), and any representation
or warranty of the Seller is based upon those matters of which the Seller's
Representative has actual knowledge. Any knowledge or notice given, had or
received by any of Seller's agents, servants or employees shall not be imputed
to Seller, the general partner or limited partners of Seller, the subpartners
of the general partner or limited partners of Seller or Seller's
Representative.
16.2 Subject to the limitations set forth in Paragraph 16.1, Seller hereby
makes the following representations and warranties, which representations and
warranties are made to Seller's knowledge and which shall survive Closing for a
period of ninety (90) days:
16.2.1 Seller has no knowledge of any pending or threatened
litigation, claim, cause of action or administrative proceeding concerning the
Property;
16.2.2 Seller has the power to execute this Agreement and
consummate the transactions contemplated herein;
16.2.3 The rent roll attached hereto as Exhibit K which Seller
will update as of the Closing Date is accurate as of the date set forth
thereon.
16.2.4 Other than Seller, Seller's first mortgage lender, cable
and laundry vendors, those parties with rights related to the Property as shown
on the Title Commitment, and the rights of Purchaser under this Agreement, no
person, firm or entity has any right, title, interest or estate in any of the
Property or has any right or option to acquire fee title to any of the Property
or any part thereof.
16.2.5 Seller has not received any written notice of any actual or
proposed pending or threatened zoning or condemnation affecting the Property.
<PAGE>
16.2.6 Seller has not received written notice from the supplier of
water, sewage, electricity, gas or telephone services to the Property stating
that such services will be curtailed in any manner.
16.2.7 There are no service contracts which may affect Purchaser
or the Property subsequent to the Closing Date, except those service contracts,
copies of which shall be provided to Purchaser pursuant to Section 3 hereof,
which are listed on Exhibit G attached hereto and made a part hereof, entitled
"Service Contracts."
16.2.8 The following matters with respect to the Leases, provided,
however, that Seller has no duty to investigate or conduct due inquiry:
(i) Subject to the interests of Seller's first mortgage lender,
Seller is the sole owner of the lessor's interest in all of the Leases and,
except as disclosed on the schedule attached hereto as Exhibit L, Seller has
received no written notice that any of such Leases are not in full force and
effect, or that any defaults by either Seller or tenants exist thereunder.
(ii) No Leases have been modified except as set forth in the
lease files maintained at the Property and which have been made available to
Purchaser.
16.2.9 From and after the date hereof, and with the exception of
the management agreement, Seller will not enter into, modify, amend, extend or
cancel any service, maintenance or management agreement with respect to all or
any portion of the Property, which cannot be terminated upon thirty days'
notice and without premium or penalty, without the prior written consent of
Purchaser which consent shall not be unreasonably delayed or withheld;
provided, however, that Purchaser shall be deemed to have consented to any such
entry, modification, amendment, extension or cancellation if Purchaser has not
responded to Seller's request for consent within two (2) business days after
receiving such request.
16.2.10 All insurance policies covering the Property shall be kept
in full force and effect, at Seller's sole expense, up to and including the
Closing Date.
16.2.11 At the Closing, Seller will terminate the existing
management agreement respecting the Property effective as of the Closing Date.
16.2.12 Seller will continue to operate, manage and maintain the
Property in the same manner as prior to the execution of this Agreement.
16.2.13 Seller will cause to be paid all trade accounts, costs and
expenses of operation of the Property incurred prior to the Closing.
16.2.14 Without obligating Seller to investigate or to conduct any
due inquiry, Seller has received no written notice alleging violation of any
laws, ordinances, fire codes, rules and regulations promulgated by any
government or any agency, body or subdivision thereof bearing on the operation
of the Property.
<PAGE>
16.3 Purchaser hereby represents and warrants to Seller that Purchaser has
the full right, power and authority to execute this Agreement and consummate
the transactions contemplated herein.
17. CONDITIONS TO OBLIGATIONS OF PURCHASER.
17.1 Notwithstanding anything contained to the contrary herein, the
obligations of Purchaser under this Agreement to purchase the Property and
consummate the other transactions contemplated hereby shall be subject to the
satisfaction of the following conditions (the "Conditions Precedent") on the
Closing Date, except to the extent that any of such Conditions Precedent may be
waived by Purchaser in writing at Closing:
17.1.1 All representations and warranties of Seller in this
Agreement shall be true and correct in all material respects, with the same
force and effect as if such representations and warranties were made anew as of
the Closing Date, and except as otherwise expressly provided herein, Seller
shall have performed and complied with all covenants and agreements required by
this Agreement to be performed or complied with by Seller prior to or on the
Closing Date.
17.1.2 No suit or other proceeding before any court or applicable
governmental authority shall be pending or threatened by any third party that
arises out of any acts or omissions of Seller seeking to restrain or prohibit
the transaction contemplated herein.
17.1.3 There shall be no moratorium, of which Seller has received
written notice, affecting Purchaser's operation of the Property as an apartment
complex.
Notwithstanding anything contained herein to the contrary, if all of the
Conditions Precedent contained in this Section shall not have been satisfied as
of the Closing Date (unless waived by Purchaser), Purchaser may elect to (i)
consummate the transaction contemplated in this Agreement, or (ii) receive the
return of the Earnest Money Deposit, following which this Agreement shall
terminate and none of the parties hereto shall have any further duties,
obligations or liabilities hereunder to one another hereunder except for
Purchaser's obligation to indemnify Seller and restore the Property, as more
fully set forth in Paragraph 7.
<PAGE>
18. LIMITATION OF LIABILITY.
18.1 Neither Seller, nor any Affiliate of Seller, nor any of their
respective beneficiaries, shareholders, partners, officers, directors, agents
or employees, heirs, successors or assigns shall have any personal liability of
any kind or nature for or by reason of any matter or thing whatsoever under, in
connection with, arising out of or in any way related to this Agreement and the
transactions contemplated herein, and Purchaser hereby waives for itself and
anyone who may claim by, through or under Purchaser any and all rights to sue
or recover on account of any such alleged personal liability.
18.2 Notwithstanding anything contained herein to the contrary but subject
to Paragraph 22 below, Purchaser hereby agrees that the maximum aggregate
liability of Seller, in connection with, arising out of or in any way related
to the breach by Seller under this Agreement or any document or conveyance
agreement in connection with the transaction set forth herein after the Closing
shall be $250,000. Purchaser hereby waives for itself and anyone who may claim
by, through or under Purchaser any and all rights to sue or recover from Seller
any amount greater than said limit.
19. TIME OF ESSENCE. Time is of the essence of this Agreement.
20. NOTICES. Any notice or demand which either party hereto is required or
may desire to give or deliver to or make upon the other party shall be in
writing and may be personally delivered or given or made by overnight courier
such as Federal Express, by facsimile transmission or made by United States
registered or certified mail addressed as follows:
<PAGE>
TO SELLER: ROCLAB PARTNERS-I
c/o The Balcor Company
Bannockburn Lake Office Plaza
2355 Waukegan Road, Suite A-200
Bannockburn, Illinois 60015
Attention: Ilona Adams
with copies to: The Balcor Company
Bannockburn Lake Office Plaza
2355 Waukegan Road, Suite A-200
Bannockburn, Illinois 60015
Attention: Alan Lieberman
(708) 317-4360
(708) 317-4462 (FAX)
and to: Katten Muchin & Zavis
525 West Monroe Street Suite 1600
Chicago, Illinois 60661-3693
Attention: Daniel J. Perlman, Esq.
(312) 902-5532
(312) 902-1061 (FAX)
TO PURCHASER: Lincoln Property Company Southwest, Inc.
3405 Piedmont Road., N.E., Suite 100
Atlanta, Georgia 30305
Attention: Mr. Charles O. Shallat
(404) 266-7600
(404) 262-3539 (FAX)
with copies to: Lincoln Property Company Southwest, Inc.
Lincoln Plaza
500 North Akard, Suite 3300
Dallas, Texas 75201
Attention: Mr. Dan Jacks
(214) 740-3300
(214) 740-3447 (FAX)
and to: McManemin & Smith, PC
600 North Pearl Street, Suite 1600
Dallas, Texas 75201
Attention: Walter A. Suberg
(214) 953-1321
(214) 953-0695 (FAX)
subject to the right of either party to designate a different address for
itself by notice similarly given. Any notice or demand so given shall be
deemed to be delivered or made on the next business day if sent by overnight
courier, or the same day as given if sent by facsimile transmission and
received by 5:00 p.m. Chicago time 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
<PAGE>
notice, demand or document not given, delivered or made by registered or
certified mail, by overnight courier or by facsimile transmission as aforesaid
shall be deemed to be given, delivered or made upon receipt of the same by the
party to whom the same is to be given, delivered or made. Copies of all
notices shall be served upon the Title Insurer, but failure of same shall not
affect the validity of delivery to the primary recipient.
21. EXECUTION OF AGREEMENT AND ESCROW AGREEMENT. Purchaser will execute five
(5) copies of this Agreement and three (3) copies of the Escrow Agreement and
forward them to Seller for execution. Within twenty-four (24) hours following
execution of this Agreement, Purchaser will deliver the Earnest Money to the
Title Insurer set forth in the Escrow Agreement. Seller will forward two (2)
copies of the executed Agreement to Purchaser and will forward the following to
the Title Insurer:
21.1 One (1) fully executed copy of this Agreement; and
21.2 Three (3) copies of the Escrow Agreement signed by the parties with a
direction to execute two (2) copies of the Escrow Agreement and deliver a fully
executed copy to each of the Purchaser and the Seller.
22. LITIGATION COSTS. In the event of any dispute or disputes arising under
the terms of this Agreement, and in the event the matter is turned over to an
attorney, the party prevailing in such dispute, subject to the immediately
succeeding sentence, shall be entitled, in addition to other damages or costs,
to receive reasonable attorneys' fees from the other party in an aggregate
amount not to exceed $50,000. Notwithstanding the foregoing, with respect to
any litigation or other proceeding arising out of Purchaser's enforcement of
its rights under Paragraph 18.2 of this Agreement, the prevailing party in such
litigation or other proceeding shall be entitled to receive reasonable
attorneys' fees from the other party in an aggregate amount not to exceed
$25,000.
23. GOVERNING LAW. The provisions of this Agreement shall be governed by the
laws of the State of Georgia.
24. 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.
25. 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.
26. 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.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have put their hand and seal as of
the date first set forth above.
PURCHASER:
LINCOLN PROPERTY COMPANY SOUTHWEST, INC.,
a Texas corporation
By: /s/ Tom M. Farrell
-------------------------------
Its: Vice President
-------------------------------
SELLER:
ROCLAB PARTNERS-I, an Illinois limited partnership
By: Balcor Partners-XII, an Illinois general partnership,
its general partner
By: RGF-Balcor Associates-II, an Illinois general
partnership, a general partner
By: The Balcor Company, a Delaware corporation,
its general partner
By: /s/ Daniel L. Charleston
---------------------------------
Name: Daniel L. Charleston
---------------------------------
Its: Authorized Agent
---------------------------------
<PAGE>
___________________________ of Apartment Realty Advisors ("Seller's Broker")
executed this Agreement in its capacity as a real estate broker and
acknowledges that the fee or commission due it from Seller as a result of the
transaction described in this Agreement is as set forth in that certain Listing
Agreement, dated _________, 1996 between Seller and Seller's Broker (the
"Listing Agreement"). Seller's Broker also acknowledges that payment of the
aforesaid fee or commission is conditioned upon the Closing and the receipt of
the Purchase Price by the Seller. Seller's Broker agrees to deliver a receipt
to the Seller at the Closing for the fee or commission due Seller's Broker and
a release stating that no other fees or commissions are due to it from Seller
or Purchaser. Seller's Broker acknowledges that no fees or commissions are or
will be payable to Seller's Broker by Purchaser under this Agreement.
By:
-------------------------------------
<PAGE>
Exhibits
A - Legal Description
B - Personal Property
C - Escrow Agreement
D - Deed
E - Bill of Sale
F - Assignment and Assumption of Intangible Property
G - Service Contracts
H - Assignment and Assumption of Leases and Security Deposits
I - Non-Foreign Affidavit
J - Notice to Tenants
K - Rent Roll
L - Landlord/Tenant Claims
<PAGE>
BALCOR EQUITY PROPERTIES-XII
c/o The Balcor Company
Bannockburn Lake Office Plaza
2355 Waukegan Road
Suite A200
Bannockburn, Illinois 60015
September 9, 1996
VIA FACSIMILE
TGM Realty Corp. #5
c/o TGM Associates L.P.
650 Fifth Avenue
New York, New York 10019
Attention: Mr. Thomas Gochberg
Re: Somerset Village Apartments
Dear Mr. Gochberg:
In connection with the above-captioned matter, this letter will confirm
that the Seller has agreed to extend the Closing until September 30, 1996. If
this extension meets with your approval, please execute a copy of this letter
and fax same directly to Stephen J. Levy, Esq. at (312) 902-1061 with an
original to follow via mail. All capitalized terms used but not defined herein
shall have the meanings ascribed to them in that certain Agreement of Sale by
and between Balcor Equity Properties-XII, an Illinois limited partnership, as
Seller and TGM Realty Corp. #5 for property commonly known as Somerset Village
Apartments, Tempe, Arizona.
Very truly yours,
BALCOR EQUITY PROPERTIES-XXII, an Illinois
limited partnership
By: Balcor Partners-XIII, an Illinois general partnership,
its general partner
By: RGF-Balcor Associates-II, an Illinois
general partnership, a general partner
By: The Balcor Company, a Delaware
Corporation, a general partner
By: /s/ James E. Mendelson
------------------------------
Name: James E. Mendelson
Its: Authorized Rep.
sjl/246743
cc: Mr. Al Lieberman
Andrew D. Small, Esq.
AGREED TO AND ACCEPTED THIS ____ DAY
OF SEPTEMBER, 1996.
By: /s/ Thomas Gochberg
---------------------------
Name: Thomas Gochberg
---------------------------
Its: President
---------------------------
<PAGE>
