SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-Q
(Mark One)
X QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
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EXCHANGE ACT OF 1934.
For the quarterly period ended June 30, 1996
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OR
TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
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EXCHANGE ACT OF 1934.
For the transition period from to
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Commission file number 0-11126
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BALCOR EQUITY PROPERTIES-XII
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(Exact name of registrant as specified in its charter)
Illinois 36-3169763
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(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
2355 Waukegan Road
Bannockburn, Illinois 60015
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(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code (847) 267-1600
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Indicate by check mark whether the Registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
Registrant was required to file such reports), and (2) has been subject to such
filing requirements for the past 90 days.
Yes X No
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<PAGE>
BALCOR EQUITY PROPERTIES - XII
(An Illinois Limited Partnership)
BALANCE SHEETS
June 30, 1996 and December 31, 1995
(Unaudited)
ASSETS
1996 1995
---------------- ---------------
Cash and cash equivalents $ 345,312 $ 146,052
Escrow deposits 1,487,622 1,626,624
Accounts and accrued interest receivable 183,830 87,969
Prepaid expenses 244,038 95,080
Deferred expenses, net of accumulated
amortization of $187,527 in 1996 and
$157,220 in 1995 400,851 431,158
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2,661,653 2,386,883
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Investment in real estate:
Land 4,359,906 4,359,906
Buildings and improvements 39,176,170 39,176,170
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43,536,076 43,536,076
Less accumulated depreciation 20,620,404 19,982,851
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Investment in real estate, net of
accumulated depreciation 22,915,672 23,553,225
---------------- ---------------
$ 25,577,325 $ 25,940,108
================ ===============
LIABILITIES AND PARTNERS' DEFICIT
Loan payable - affiliate $ 440,724 $ 705,724
Accounts payable 148,967 127,828
Due to affiliates 38,157 21,406
Accrued real estate taxes 433,909 516,588
Security deposits 159,158 157,920
Mortgage notes payable 29,866,060 30,082,916
---------------- ---------------
Total liabilities 31,086,975 31,612,382
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Limited Partners' deficit (37,447
Interests issued and outstanding) (4,910,503) (5,071,501)
General Partner's deficit (599,147) (600,773)
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Total partners' deficit (5,509,650) (5,672,274)
---------------- ---------------
$ 25,577,325 $ 25,940,108
================ ===============
The accompanying notes are an integral part of the financial statements.
<PAGE>
BALCOR EQUITY PROPERTIES - XII
(An Illinois Limited Partnership)
STATEMENTS OF INCOME AND EXPENSES
for the six months ended June 30, 1996 and 1995
(Unaudited)
1996 1995
---------------- ---------------
Income:
Rental and service $ 4,869,608 $ 4,549,357
Interest on short-term investments 71,000 20,854
---------------- ---------------
Total income 4,940,608 4,570,211
---------------- ---------------
Expenses:
Interest on mortgage notes payable 1,437,836 1,447,482
Interest on short-term loan - affiliate 16,981 28,396
Depreciation 637,553 634,095
Amortization of deferred expenses 30,307 30,308
Property operating 1,874,136 1,689,430
Real estate taxes 345,436 420,795
Property management fees 240,367 225,375
Administrative 195,368 202,295
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Total expenses 4,777,984 4,678,176
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Net income (loss) $ 162,624 $ (107,965)
================ ===============
Net income (loss) allocated to
General Partner $ 1,626 $ (1,080)
================ ===============
Net income (loss) allocated to
Limited Partners $ 160,998 $ (106,885)
================ ===============
Net income (loss) per Limited Partnership
Interest (37,447 issued and outstanding)$ 4.30 $ (2.85)
================ ===============
The accompanying notes are an integral part of the financial statements.
<PAGE>
BALCOR EQUITY PROPERTIES - XII
(An Illinois Limited Partnership)
STATEMENTS OF INCOME AND EXPENSES
for the quarters ended June 30, 1996 and 1995
(Unaudited)
1996 1995
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Income:
Rental and service $ 2,431,345 $ 2,297,072
Interest on short-term investments 29,875 6,965
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Total income 2,461,220 2,304,037
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Expenses:
Interest on mortgage notes payable 717,672 722,606
Interest on short-term loan - affiliate 8,028 14,798
Depreciation 318,776 317,048
Amortization of deferred expenses 15,153 15,154
Property operating 983,822 930,582
Real estate taxes 161,317 212,455
Property management fees 121,659 113,775
Administrative 113,367 112,795
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Total expenses 2,439,794 2,439,213
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Net income (loss) $ 21,426 $ (135,176)
================ ===============
Net income (loss) allocated to General
Partner $ 214 $ (1,352)
================ ===============
Net income (loss) allocated to Limited
Partners $ 21,212 $ (133,824)
================ ===============
Net income (loss) per Limited Partnership
Interest (37,447 issued and outstanding)$ 0.57 $ (3.57)
================ ===============
The accompanying notes are an integral part of the financial statements.
<PAGE>
BALCOR EQUITY PROPERTIES - XII
(An Illinois Limited Partnership)
STATEMENTS OF CASH FLOWS
for the six months ended June 30, 1996 and 1995
(Unaudited)
1996 1995
---------------- ---------------
Operating activities:
Net income (loss) $ 162,624 $ (107,965)
Adjustments to reconcile net income
(loss) to net cash provided by
operating activities:
Depreciation of properties 637,553 634,095
Amortization of deferred expenses 30,307 30,308
Net change in:
Escrow deposits 86,108 (137,872)
Accounts and accrued interest
receivable (95,861) 10,546
Prepaid expenses (148,958) (235,831)
Accounts payable 21,139 (28,369)
Due to affiliates 16,751 (82,525)
Accrued liabilities (82,679) (11,403)
Security deposits 1,238 5,026
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Net cash provided by operating activities 628,222 76,010
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Financing activities:
Proceeds from loan payable - affiliate 195,000
Repayment of loan payable - affiliate (265,000) (250,000)
Proceeds from the release of capital
improvement escrows 52,894 245,056
Principal payments on mortgage notes
payable (216,856) (197,824)
---------------- ---------------
Net cash used in financing
activities (428,962) (7,768)
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Net change in cash and cash equivalents 199,260 68,242
Cash and cash equivalents at beginning
of period 146,052 203,497
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Cash and cash equivalents at end of period $ 345,312 $ 271,739
================ ===============
The accompanying notes are an integral part of the financial statements.
<PAGE>
BALCOR EQUITY PROPERTIES-XII
(An Illinois Limited Partnership)
NOTES TO FINANCIAL STATEMENTS
1. Accounting Policies:
In the opinion of management, all adjustments necessary for a fair presentation
have been made to the accompanying statements for the six months and quarter
ended June 30, 1996, and all such adjustments are of a normal and recurring
nature.
2. Interest Expense:
During the six months and quarters ended June 30, 1996 and 1995, the
Partnership incurred and paid interest expense on mortgage notes payable of
$1,437,836 and $1,447,482, respectively.
3. Transactions with Affiliates:
Fees and expenses paid and payable by the Partnership to affiliates during the
six months and quarter ended June 30, 1996 were:
Paid
---------------------
Six Months Quarter Payable
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Reimbursement of expenses to
the General Partner, at cost $45,229 $28,841 $35,339
During the six months ended June 30, 1996, the Partnership made repayments
totaling $265,000 on the loan from the General Partner. The Partnership
incurred interest expense of $16,981 and paid interest expense of $17,050 on
the loan during this period. As of June 30, 1996, the loan had a balance of
$440,724, with accrued interest payable thereon of $2,818. Interest expense on
the General Partner loan is computed at the American Express Company cost of
funds rate plus a spread to cover administrative costs. As of June 30, 1996,
this rate was 5.911%.
<PAGE>
BALCOR EQUITY PROPERTIES-XII
(An Illinois Limited Partnership)
MANAGEMENT'S DISCUSSION AND ANALYSIS
Balcor Equity Properties-XII (the "Partnership") was formed in 1981 to invest
in and operate income-producing real property. The Partnership raised
$37,447,000 through the sale of Limited Partnership Interests and utilized
these proceeds to acquire seven real property investments and a minority joint
venture interest in one additional real property. Three properties have been
disposed of, including the property in which the Partnership held a minority
joint venture interest. The Partnership continues to operate its five remaining
properties.
Inasmuch as the management's discussion and analysis below relates primarily to
the time period since the end of the last fiscal year, investors are encouraged
to review the financial statements and the management's discussion and analysis
contained in the annual report for 1995 for a more complete understanding of
the Partnership's financial position.
Operations
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Summary of Operations
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Increased rental income at several of the properties due to higher rental rates
resulted in the recognition of net income for the Partnership during the six
months and quarter ended June 30, 1996 as compared to a net loss during the
same periods in 1995. Further discussion of the Partnership's operations is
summarized below.
1996 Compared to 1995
- ---------------------
Unless otherwise noted, discussion of fluctuations between 1996 and 1995 refer
to both the six months and quarter ended June 30, 1996 and 1995.
Primarily as a result of higher rental rates at the Brierwood, Cedar Ridge,
DeFoors Creek and Somerset Village apartment complexes, rental income increased
for 1996 when compared to 1995.
As a result of interest earned on escrow deposits, interest income on
short-term investments increased for 1996 when compared to 1995.
The repayment of a portion of the General Partner loan resulted in a decrease
in interest on short-term loan - affiliate for 1996 when compared to 1995.
A refund received for a portion of the 1994 real estate taxes for the Somerset
Village Apartments and lower real estate assessment at the Brierwood Apartments
caused real estate tax expense to decrease during 1996 when compared to 1995.
This decrease was partially offset by an increase in the assessed value at the
Defoors Creek Apartments.
<PAGE>
Higher repair and maintenance expenditures which included painting at Somerset
Village Apartments and higher utility expenses at Brierwood Apartments were the
primary reasons property operating expenses increased during the six months
ended June 30, 1996 when compared to the same period in 1995.
Liquidity and Capital Resources
- -------------------------------
The cash position of the Partnership increased by approximately $199,000 as of
June 30, 1996 when compared to December 31, 1995. The Partnership generated
cash flow totaling approximately $628,000 from its operating activities which
primarily represented the operations of its properties, net of the payment of
administrative expenses. The Partnership's financing activities consisted of
the repayment of a portion of loan payable - affiliate of $265,000, principal
payments on mortgage notes payable of approximately $217,000 and proceeds from
the release of capital improvement escrows of $53,000.
The Partnership owes $440,724 to the General Partner at June 30, 1996. This
loan is expected to be repaid from available cash flow from future property
operations, and from proceeds received from the disposition of the
Partnership's real estate investments prior to any distributions to Limited
Partners.
The Partnership defines cash flow generated from its properties as an amount
equal to the property's revenue receipts less property related expenditures,
which include debt service payments. For the six months ended June 30, 1996 and
1995, all five of the Partnership's properties generated positive cash flow. As
of June 30, 1996, the occupancy rates of the Partnership's properties ranged
from 92% to 98%.
While the cash flow of certain of the Partnership's properties has improved,
the General Partner continues to pursue a number of actions aimed at improving
the cash flow of the Partnership's properties, including improving property
performance and seeking rent increases where market conditions allow.
The General Partner believes that the market for multifamily housing properties
is favorable to sellers of these properties. Currently, the Partnership has
entered into contracts to sell the Brierwood and Somerset Village apartment
complexes for sale prices of $5,250,000 and $11,100,00, respectively.
Additionally, the Partnership is actively marketing the remaining properties in
its portfolio. If current market conditions remain favorable and the General
Partner can obtain appropriate sale prices, the Partnership's liquidation
strategy will be accelerated.
Each of the Partnership's properties is owned through the use of third-party
mortgage loan financing and, therefore, the Partnership is subject to the
financial obligations required by such loans. The Partnership has no third
party financing which matures prior to 1998.
<PAGE>
To date, investors have received distributions of Net Cash Receipts of $70 and
Net Cash Proceeds of $60.50 totaling $130.50 per $1,000 Interest, as well as
certain tax benefits. Future distributions will depend on improved cash flow
from the Partnership's remaining properties, the repayment of the General
Partner loan, and proceeds from future property sales, as to all of which there
can be no assurances. The General Partner does not anticipate that investors
will recover all of their original investment.
Inflation has several types of potentially conflicting impacts on real estate
investments. Short-term inflation can increase real estate operating costs
which may or may not be recovered through increased rents and/or sales prices,
depending on general or local economic conditions. In the long-term, inflation
can be expected to increase operating costs and replacement costs and may lead
to increased rental revenues and real estate values.
<PAGE>
BALCOR EQUITY PROPERTIES-XII
(An Illinois Limited Partnership)
PART II - OTHER INFORMATION
Item 5. Other Information
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Brierwood Apartments
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As previously reported, on April 23, 1996, the Partnership contracted to sell
Brierwood Apartments, Jacksonville, Florida, to an unaffiliated party, ERP
Operating Limited Partnership. The closing of the sale has been extended to
September 3, 1996, and the sale price has been reduced from $5,400,000 to
$5,250,000.
Somerset Village Apartments
- ---------------------------
In 1983, the Partnership acquired the Somerset Village Apartments utilizing
$3,470,645 in offering proceeds. The property was purchased subject to an
existing first mortgage loan in the amount of approximately $7,191,000 and a
$200,000 purchase money note collateralized by a second mortgage on the
property. The second mortgage was repaid from Partnership funds in 1988.
On August 8, 1996, the Partnership contracted to sell the property for a sale
price of $11,100,000 to an unaffiliated party, TGM Realty Corp. #5, a Delaware
corporation. The purchaser has deposited $300,000 into an escrow account as
earnest money. The remaining portion of the sale price will be payable in cash
at closing, which is scheduled to occur on September 16, 1996. From the
proceeds of the sale, the Partnership will pay the outstanding balance of the
first mortgage loan which is expected to be approximately $6,333,000 at
closing, $166,500 to an unaffiliated party as a brokerage commission and
$111,000 to an affiliate of the third party providing property management
services for the property as a fee for services rendered in connection with the
sale of the property. The Partnership will receive the remaining proceeds of
approximately $4,489,500, less closing costs. Of such proceeds, an amount not
to exceed $250,000 will be retained by the Partnership and will not be
available for use or distribution by the Partnership until 90 days after
closing. 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 actual expenses incurred in
connection with the sale.
Affiliates of the General Partner have recently contracted to sell five other
properties to the purchaser.
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.
<PAGE>
Item 6. Exhibits and Reports on Form 8-K
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(a) Exhibits:
(4) Certificate of Limited Partnership set forth as Exhibit 4.1 to the
Registrant's Registration Statement on Form S-11 dated July 2, 1982
(Registration No. 2-76947) and Form of Confirmation regarding Interests in the
Registrant set forth as Exhibit 4.2 to the Registrant's Report on Form 10-Q for
the quarter ended June 30, 1992 (Commission File No. 0-11126) are hereby
incorporated herein by reference.
(10) Material Contracts:
The Agreement of Sale relating to the sale of Somerset Village Apartments,
Tempe, Arizona, is attached thereto.
(27) Financial Data Schedule of the Registrant for the six month period ending
June 30, 1996 is attached hereto.
(99)(i) Master Amendment and Agreement dated May 22, 1996 relating to the sale
of Brierwood Apartments, Jacksonville, Florida.
(ii) Master Amendment and Agreement #2 dated May 22, 1996 relating to the sale
of Brierwood Apartments, Jacksonville, Florida.
(iii) Letter agreements dated May 24, 1996 and July 8, 1996 relating to the
sale of Brierwood Apartments, Jacksonville, Florida.
(b) Reports on Form 8-K: A Current Report on Form 8-K dated April 23, 1996,
was filed reporting a contract to sell Brierwood Apartments located in
Jacksonville, Florida.
<PAGE>
SIGNATURES
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, thereunto duly authorized.
BALCOR EQUITY PROPERTIES-XII
By: /s/ Thomas E. Meador
-----------------------------
Thomas E. Meador
President and Chief Executive Officer
(Principal Executive Officer) of Balcor
Partners-XII, the General Partner
By: /s/ Brian D. Parker
------------------------------
Brian D. Parker
Senior Vice President, and Chief Financial
Officer (Principal Accounting and Financial
Officer) of Balcor Partners-XII, the General
Partner
Date: August 13, 1996
--------------------------
<PAGE>
AGREEMENT OF SALE
THIS AGREEMENT, entered into as of the 6th day of August, 1996, by and
between TGM Realty Corp. #5, a Delaware corporation ("Purchaser"), and Balcor
Equity Properties-XII, an Illinois limited partnership ("Seller").
WITNESSETH:
1. PURCHASE AND SALE. Purchaser agrees to purchase and Seller agrees to
sell at the price (the "Purchase Price") of Eleven Million One Hundred Thousand
and No/100 Dollars ($11,100,000.00), all of the following property
(collectively, the "Property"):
A. That certain parcel of real property commonly known as Somerset
Village Apartments, Tempe, Arizona, more particularly described on Exhibit A
attached hereto (the "Land");
B. All equipment, furnishings and other tangible personal property
owned by Seller placed or installed on or about the Land or Improvements now or
prior to "Closing" (as such term is defined in Section 8 hereof) and used as
part of or in connection with the Land and Improvements, including, the
personal property set forth on Exhibit B but excluding any computer hardware
and software (other than computer discs containing data files) (collectively,
the "Personal Property"), which Personal Property shall be transferred to
Purchaser at Closing by a Bill of Sale in the form of Exhibit F attached
hereto;
C. All rights and appurtenances pertaining to the Land, including,
without limitation, any and all rights of Seller in and to all water rights,
water capacity and reservations, air and development rights, roads, alleys,
easements, streets and ways adjacent to the Land, rights of ingress and egress
thereto, any strips and gores within or bounding the Land and profits or rights
or appurtenances pertaining to the Land;
D. The buildings and all other improvements, structures and
fixtures placed, constructed or installed on the Land (collectively, the
"Improvements");
E. All leases, licenses and other occupancy agreements
(collectively, the "Leases") covering space situate at or within the Land and
Improvements and any claim or right to claim against a tenant or occupant
(collectively, the "Tenants") under any existing Lease and all security
deposits paid or deposited by Tenants in respect of the Leases;
F. All of Seller's rights in and contractual rights and intangibles
with respect to the operation, maintenance and repair of the Land and
Improvements, including service and maintenance agreements, construction,
material and labor contracts, utility agreements and other contractual
arrangements, all to the extent designated by the provisions of this Agreement
<PAGE>
(collectively, the "Contracts"); assignable governmental permits, licenses,
certificates and approvals in connection with the ownership of the Property
(collectively, the "Licenses") and warranties of any contractor, manufacturer
or materialman;
G. Seller's right, if any, to the use of the trade name "Somerset
Village Apartments" (the "Trade Name") in connection with the Property;
H. The right, if assignable, to the use of all telephone numbers
used by Seller at the Property; and
I. All rights to any award made or to be made or settlement in lieu
thereof for damage to the Land or Improvements by reason of condemnation,
eminent domain, exercise of police power or change of grade of any street in
accordance with the terms herein.
2. PURCHASE PRICE. The Purchase Price shall be paid as follows:
A. Within one (1) "Business Day" (as hereinafter defined) following
the Purchaser's execution of this Agreement, the sum of $300,000 (said sum,
together with all interest accrued thereon, is herein called the "Earnest
Money") payable to the "Escrow Agent" (as defined in the Escrow Agreement) to
be held in escrow 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), the balance of
the Purchase Price, adjusted in accordance with the prorations by federally
wired "immediately available" funds to the Escrow Agent's account prior to
11:00 A.M. Eastern Time.
3. TITLE COMMITMENT AND SURVEY.
A. Seller has delivered to Purchaser a title commitment ("Title
Commitment") for an ALTA Owner's Policy (10/17/92) with extended coverage
("Title Policy") issued by Lawyers Title Insurance Corporation ("Title
Insurer"). In addition, Seller has delivered to Purchaser copies of all items
and documents referred to in the Title Commitment (collectively, the "Backup
Documents"). The Title Policy issued to Purchaser at Closing will be in the
amount of the Purchase Price subject only to the "Permitted Exceptions" (as
hereinafter defined). On the Closing Date, Seller shall cause the Title
Insurer to issue to Purchaser the Title Policy or a "marked up" commitment in
conformity with the requirements in this Agreement for the Title Policy. The
costs of the Title Policy will be paid pursuant to Paragraph 5 of this
Agreement.
B. Seller has ordered a survey of the Property (the "Property").
Seller will deliver the Survey to Purchaser promptly following its receipt by
Seller. Prior to the Closing, Seller will have the Survey certified to
Purchaser or its designee and the Title Insurer, which certificate shall be in
a form agreed to by Purchaser and the Surveyor prior to the expiration of the
Inspection Period. All costs relating to the Survey will be paid pursuant to
Paragraph 5 of this Agreement.
<PAGE>
C. Purchaser shall have until the "Inspection Period Expiration
Date" (as hereinafter defined) to examine the condition of title and the Survey
and to approve or disapprove the same, including, without limitation,
determining whether Purchaser is satisfied with: (a) the title endorsements
which the Title Insurer will make available to Purchaser; and (b) the
certificate from the surveyor on the Survey (the "Surveyor"). If Purchaser
shall disapprove the condition of title or the Survey, such disapproval shall
be set forth in one or more notices (each, a "Disapproval Notice") given to
Seller not later than the Inspection Period Expiration Date stating that the
condition of title to the Property or of the Survey or any of the terms,
provisions or contents of the items and documents described in Paragraphs 3A
and 3B hereof are disapproved by Purchaser. If Purchaser fails to deliver a
Disapproval Notice, Purchaser shall be presumed to have accepted the condition
of title and the Survey in the condition set forth in the most recent Title
Commitment and Survey that shall have been delivered to Alan Linder on or
before the date which is three (3) Business Days before the Inspection Period
Expiration Date. Notwithstanding the foregoing, Purchaser may deliver one or
more additional Disapproval Notices after the Inspection Period Expiration
Date, if at any time after the date which is three (3) Business Days prior to
the Inspection Period Expiration Date, Alan Linder receives (i) an amendment or
revision to the Title Commitment or the Survey containing any exception or
Survey item not set forth in a previous Title Commitment or Survey, or (ii) a
Backup Document not previously delivered to Alan Linder, provided that any such
additional Disapproval Notice shall be given, if at all, within three (3)
Business Days after Alan Linder receives such amendment, revision or additional
Backup Document, as the case may be. If necessary, the Closing shall be
adjourned to provide Purchaser such three (3) Business Day period. Seller
shall have until the date which is five (5) Business Days after the date of the
Disapproval Notice (the "Title Cure Expiration Date") in which to cure,
eliminate or agree to cure or eliminate all items which Purchaser disapproves
in the Disapproval Notice, and to furnish evidence satisfactory to Purchaser
and the Title Insurer or the Surveyor, respectively, that all such items have
been cured or eliminated or that arrangements have been made with the Title
Insurer or the Surveyor, respectively, and any parties in interest to cure or
eliminate the same at or prior to the later of: (a) Closing, or (b) five (5)
Business Days following the Title Cure Expiration Date, in which case, if
necessary, the Closing Date shall be extended to the first date on which the
lender financing the Property will accept a prepayment of the loan secured by
the Property, but in no event shall the Closing Date be extended by more than
thirty (30) days therefor. If such evidence is not received by Purchaser and
the Title Insurer or the Surveyor, respectively, on or before the Title Cure
Expiration Date (all exceptions to title or Survey items set forth in any and
all Disapproval Notices are herein called "Unpermitted Exceptions", and all
exceptions to title and all Survey items that are not Unpermitted Exceptions
are herein called "Permitted Exceptions"), then Purchaser shall have the right
to elect to terminate this Agreement, by written notice delivered on or before
the Closing (the "Termination Notice") and, upon such election, all Earnest
Money shall be immediately refunded to Purchaser, and thereupon the parties
hereto shall have no further obligations one to the other under this Agreement.
If Purchaser fails to deliver the Termination Notice as described above, the
Purchaser shall be deemed to have accepted title and Survey subject to the
Unpermitted Exceptions.
<PAGE>
Notwithstanding anything contained herein to the contrary, if there shall
be any Unpermitted Exceptions which (i) are, or were caused by, resulted from
or arose out of (a) a default by Seller of any of its obligations under this
Agreement, including but not limited to Seller's failure to pay real estate
taxes, or (b) any debt of Seller secured by the Property including, but not
limited to the grant by Seller to any person or entity of a mortgage, deed of
trust or other security interest affecting the Property; (c) any judgments
which are a lien against the Property; (d) any materialman's or mechanic's lien
(or similar lien) recorded against the Property, then, for a period of sixty
(60) days, Seller shall take all such actions as may be necessary (including,
without limitation, the commencement of and the diligent prosecution of legal
proceedings and the payment of money) to remove such Unpermitted Exceptions, or
cause the Title Insurer to issue a title indemnity to Purchaser in form and
substance reasonably satisfactory to Purchaser, insuring against loss or
damage; or (ii) are not of the type described in clause (i) of this sentence,
but are removable by the payment of a definite or ascertainable sum not to
exceed, in the aggregate, $25,000.00 (hereinafter referred to as the "Maximum
Amount"), then Seller shall cause such Unpermitted Exceptions to be removed
from the Title Commitment and the Title Policy, or cause the Title Insurer to
issue a title indemnity to Purchaser in form and substance reasonably
satisfactory to Purchaser, insuring against loss or damage. If Seller fails to
remove any Unpermitted Exceptions in accordance with the provisions of this
paragraph or if there exists any Unpermitted Exception which Seller is not
obligated to remove pursuant to clause (ii) above because payment of funds in
excess of the Maximum Amount would be required to cure the same, Purchaser,
nevertheless, may elect (at or prior to the Closing) to consummate the
transaction provided for herein subject to any such Unpermitted Exception as
may exist as of the Closing with a credit against the Purchase Price equal to
(a) the sum necessary to remove such Unpermitted Exceptions which can be
satisfied by a liquidated amount, and (b) the reasonably estimated reduction in
the fair market value of the Property resulting from any Unpermitted Exceptions
which cannot be satisfied by the payment of a liquidated amount (not to exceed
the Maximum Amount solely for Unpermitted Exceptions of the type described in
clause (ii) above; provided, however, if Purchaser makes such election,
Purchaser shall not be entitled to any other credit, nor shall Seller bear any
further liability, with respect to any Unpermitted Exceptions of the type
described in clause (ii) above). If Purchaser shall not so elect, Purchaser
shall be deemed to have elected to terminate this Agreement, in which case, the
Earnest Money plus all accrued interest shall be delivered to Purchaser and,
subject to the survival provisions of Paragraphs 15 and 16 herein, neither
party shall have any further liability hereunder.
4. CONDITION OF TITLE/CONVEYANCE. Seller agrees to convey fee simple
title to the Property by Special Warranty Deed ("Deed") in the form of Exhibit
D attached hereto and in recordable form subject only to the Permitted
Exceptions.
5. PAYMENT OF CLOSING COSTS. Purchaser and Seller shall each pay
one-half (1/2) of all costs related to the Title Commitment and the Title
Policy (including without limitation premium, title search fees, the costs of
extended coverage on the Title Policy and the costs of those endorsements
identified on Exhibit E attached hereto [Purchaser shall be responsible to pay\
<PAGE>
for any additional endorsements]), the Survey (including the recertifying of
the Survey), the Title Insurer's escrow fees not to exceed $550, transfer
taxes, if any, recording charges for the Deed, and the cost of the "UCC Search"
(as hereinafter defined) (collectively, "Closing Costs"). Notwithstanding the
aforesaid, each party hereunder shall pay its own attorneys' fees.
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 for $200,000 or less, then
Purchaser shall accept the Property in its damaged condition together with a
credit at Closing in the amount of the damaged Property. If the Property
suffers damage as a result of any casualty prior to the Closing Date and cannot
be repaired or restored for $200,000 or less, then, at Purchaser's election to
be exercised within ten (10) days after Purchaser is notified of such casualty,
this Agreement shall be terminated.
B. If condemnation proceedings ("Proceedings") have been instituted
against the Property or any governmental authority shall take any steps
preliminary thereto (by the giving of a written notice of intent to institute
such proceedings), 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 Seller within ten (10) days after Seller notifies
Purchaser of the Proceedings.
C. If this Agreement is terminated pursuant to Paragraphs 6a or 6b
hereof, then all Earnest Money plus the interest accrued thereon shall be
returned to Purchaser and, subject to the survival provisions of Paragraphs 15
and 16 herein, neither party shall have any further liability hereunder.
7. AS-IS CONDITION.
A. Except as specifically set forth otherwise in this Agreement,
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 last day of Purchaser's inspection
of the Property, subject to reasonable wear and tear from such date 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 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, toxic waste or any hazardous material, 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
<PAGE>
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 contribution,
cost recovery or otherwise, against Seller, relating directly or indirectly to
the existence of asbestos or hazardous materials or substances on, or
environmental conditions of, the Property, provided that nothing in this
Section 7 shall constitute a release of Seller with respect to any
representations or warranties expressly set forth in this Agreement. As used
herein, the term "Hazardous Materials" or "Hazardous Substances" means (i)
hazardous wastes, 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
substances," "toxic substances," "pollutants," "contaminants," "radioactive
materials," or other similar designations in, or otherwise subject to
regulation under, the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended ("CERCLA"), 42 U.S.C. Section 9601 et seq.;
the Toxic Substance Control Act ("TSCA"), 15 U.S.C. Section 2601 et seq.; the
Hazardous Materials Transportation Act, 49 U.S.C. Section 1802; the Resource
Conservation and Recovery Act ("RCRA"), 42 U.S.C. Section 9601, et seq.; the
Clean Water Act ("CWA"), 33 U.S.C. Section 1251 et seq.; the Safe Drinking
Water Act, 42 U.S.C. Section 300f et seq.; the Clean Air Act ("CAA"), 42 U.S.C.
Section 7401 et seq.; and in any permits, licenses, approvals, plans, rules,
regulations or ordinances adopted, or other criteria and guidelines promulgated
pursuant to the preceding laws or other similar federal, state or local laws,
regulations, rules or ordinance now or hereafter in effect relating to
environmental matters (collectively the "Environmental Laws"); and (ii) any
other substances, constituents or wastes subject to any applicable federal,
state or local law, regulation or ordinance, including any Environmental Law,
now or hereafter in effect, including but not limited to (A) petroleum, (B)
refined petroleum products, (C) waste oil, (D) waste aviation or motor vehicle
fuel and (E) asbestos.
B. If the Property suffers damage from a casualty prior to the
Closing Date, but is discovered by Purchaser within 90 days after the Closing
Date, then Seller shall promptly file a claim with its insurance carrier and
will assign the proceeds of that claim to Purchaser and pay Purchaser the
amount of the deductible on its policy.
C. 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 will rely 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.
<PAGE>
8. CLOSING. The closing ("Closing") of this transaction shall be on
September 16, 1996 or on such other date mutually agreed upon by the parties
("Closing Date"), at which time Seller shall deliver possession of the Property
to Purchaser in accordance with this Agreement. Closing shall occur at the
offices of Purchaser's counsel. The parties acknowledge and agree the Closing
will be a "New York Style" Closing such that Seller will receive the Purchase
Price on the Closing Date upon (i) Seller's unconditional delivery of the
documents set forth in Paragraph 9(b) herein, and (ii) the Title Insurer's
delivery to Purchaser of the Title Policy or a "marked-up" commitment in
conformity with the requirements in this Agreement for the Title Policy.
9. CLOSING DOCUMENTS.
A. On the Closing Date, Purchaser shall deliver to Seller an
executed closing statement prepared by the Title Insurer and approved by
Purchaser, the Assignment and Assumption of Service Contracts in the form of
Exhibit G attached hereto, the Assignment and Assumption of Leases in the form
of Exhibit H attached hereto, the notice to the Tenants in the form of Exhibit
I attached hereto, the Post-Closing Adjustment Letter in the form of Exhibit J
attached hereto, the balance of the Purchase Price (after crediting the Earnest
Money), 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.
B. On the Closing Date, Seller shall deliver to Purchaser
possession of the Property in accordance with this Agreement; and duplicate
originals of all of the following: the Deed (in the form of Exhibit D attached
hereto) subject only to the Permitted Exceptions and those Unpermitted
Exceptions waived in writing by Purchaser, if any, which Deed shall contain the
legal description in conformity with the legal description shown on the final
Survey; an inventory of the Personal Property which shall include all Personal
Property set forth on Exhibit B and a Bill of Sale for the same (in the form of
Exhibit F attached hereto); an executed closing statement prepared by the Title
Insurer and approved by Purchaser; an executed Assignment and Assumption of
Service Contracts (in the form of Exhibit G attached hereto) together with
originals (or copies if originals are not in Seller's possession) of all
instruments evidencing the rights assigned; an executed Assignment and
Assumption of Leases (in the form of Exhibit H attached hereto) together with
originals of all Leases assigned (which Leases will be at the managing agent's
office at the Property); an updated rent roll certified by Seller to be
correct; a notice to the Tenants of the transfer of title (in the form of
Exhibit I attached hereto, which notice shall be delivered to the Tenants by
Purchaser); a non-foreign affidavit (in the form of Exhibit K attached hereto);
the Post-Closing Adjustment Letter dated as of the Closing Date (in the form of
Exhibit J annexed hereto); an assignment of intangibles (in the form of Exhibit
L annexed hereto); an assignment of the Licenses (in the form of Exhibit M
annexed hereto), together with originals or copies of originals which are not
in Seller's possession, of all instruments evidencing the rights assigned; an
assignment of all existing assignable warranties and guarantees (the
"Assignment of Warranties and Guarantees") relating to the Property dated as of
the Closing Date (in the form of Exhibit N annexed hereto), together with
available originals or copies if originals are not in Seller's possession, of
all instruments evidencing the rights assigned, the Information for Real Estate
<PAGE>
1099-S Report Filing (in the form of Exhibit O annexed hereto); an
acknowledgement of receipt of the Information for Real Estate 1099-S Report
Filing by the Title Insurer (in the form of Exhibit P attached hereto);
evidence acceptable to the Title Insurer, authorizing the consummation by
Seller of the transaction which is the subject of this Agreement and the
execution and delivery of all documents on behalf of Seller; all keys and
combinations to all locks on the Improvements which will be at the Property;
all plans, specifications, mechanical, electrical and plumbing layouts,
operating manuals, purchase orders, brochures, marketing materials and
advertisements which are owned by Seller and are located at the Property,
Tenant lease files, and other files and records in the possession of Seller at
the leasing office at the Property and Seller's managing agent (including,
without limitation, hard copy print outs of the information contained on the
computer data discs delivered to Purchaser at Closing) and utilized in
connection with the operation and maintenance of the Land and Improvements;
current tax bills and, if available, to the extent in Seller's possession, tax
bills for each of the years of Seller's ownership of the Property; a
certificate from Seller that no proceeding for the reduction of real or
personal property taxes is ongoing as of the Closing Date; affidavits and
certificates as to facts within the knowledge of Seller as required by the
Title Insurer as to the condition of title or the due performance by Seller of
its obligations under this Agreement, the Title Policy or the "marked-up"
commitment for the Title Policy in conformity with the requirements in this
Agreement; UCC searches conducted by a UCC search company reasonably acceptable
to Purchaser at the County and State level, searching Seller's name, the name
of any other entity which may have owned the Property during the past five (5)
years and the Trade Name, dated to a date not more than thirty (30) days prior
to the Closing evidencing that no portion of the Personal Property is subject
to any UCC filing (the "UCC Search") unless a UCC-3 Termination Statement for
same has been provided for at the Closing; telephone transfer form; 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.
C. Seller shall deliver to Alan Linder, not less than five (5) days
prior to the Closing Date, execution originals of all of the conveyance
documents which are to be executed by Purchaser.
10. DEFAULT BY PURCHASER. ALL EARNEST MONEY DEPOSITED INTO THE ESCROW IS
TO SECURE THE TIMELY PERFORMANCE BY PURCHASER OF ITS OBLIGATIONS AND
UNDERTAKINGS UNDER THIS AGREEMENT, INCLUDING ITS OBLIGATIONS TO MAKE ALL
DEPOSITS ON OR BEFORE THE DATES PROVIDED FOR HEREIN. IN THE EVENT THE CLOSING
DOES NOT OCCUR AS A RESULT OF ANY DEFAULT OF PURCHASER UNDER THE PROVISIONS OF
THIS AGREEMENT, SELLER SHALL RETAIN ALL OF THE EARNEST MONEY AND THE INTEREST
THEREON AS LIQUIDATED DAMAGES, AND 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.
<PAGE>
11. SELLER'S DEFAULT. IF THIS SALE IS NOT COMPLETED BECAUSE OF SELLER'S
INABILITY TO PERFORM ITS OBLIGATIONS UNDER THIS AGREEMENT, PURCHASER' S SOLE
REMEDY SHALL BE THE RETURN OF ALL EARNEST MONEY TOGETHER WITH ANY INTEREST
ACCRUED THEREON, PLUS ACTUAL DAMAGES NOT TO EXCEED $150,000.00, AND, SUBJECT TO
THE SURVIVAL PROVISIONS OF PARAGRAPHS 15 AND 16 HEREIN, 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 ANY OF THE OTHER
DOCUMENTS ENUMERATED IN PARAGRAPH 9(b) OF THIS AGREEMENT, THEN PURCHASER WILL
BE ENTITLED TO SUE FOR SPECIFIC PERFORMANCE.
12. PRORATIONS. The following are to be prorated or adjusted (as
appropriate), as of 11:59 P.M. on the day preceding the Closing Date (the
"Proration Date"):
A. Rents, as and when collected. If as of the Proration Date there
are rents owed by Tenants for the month in which the Closing occurs, then the
first monies received from said Tenant or Tenants shall be received on account
of or in payment of such past due rents and (i) if Purchaser receives said past
due rents, Seller's aforesaid share thereof shall be remitted by Purchaser to
Seller within three (3) Business Days, and (ii) if Seller receives such past
due rents, Purchaser's aforesaid share thereof shall be remitted by Seller to
Purchaser within three (3) Business Days. With respect to any arrears for
periods prior to the month in which the Closing occurs, Purchaser shall pay
such arrears to Seller as and when collected from the monies received from such
Tenant provided such Tenant is otherwise current in its rent. With respect to
rents for any period subsequent to the month in which the Closing occurs that
may be received by Seller, Seller shall promptly remit such rents to Purchaser.
B. Real estate and personal property taxes, if any, on the basis of
the fiscal year for which assessed and in which the Proration Date occurs. If
the Closing shall occur before the tax rate or assessment is fixed for the
fiscal year in which the Closing occurs, then the apportionment of such real
estate and personal property taxes at the Closing shall be upon the basis of
105% of the most recent available tax bill.
C. Water, sewer charges, electricity and gas on the basis of the
most recent bills available, but if there are meters on the Property, Seller,
to the extent the same is obtainable, shall obtain a reading effective as of
the Proration Date.
D. Tax and utility company deposits, if any, and if assignable and
assigned.
E. Fuel, if any, based on a fuel company letter showing measurement
no more than two (2) days prior to Closing and valued at current prices.
F. Amounts paid or payable in respect of any Contracts assigned to
Purchaser, including, but not limited to, any up-front "bonus" payments made in
consideration of entering into any Contract, net of any commissions paid by
Seller (which up-front "bonus" payments, if any, shall be prorated based upon
the unexpired term of the Contract; provided, however, such bonus payments
shall only be prorated if actually received by Seller and only to the extent
any fee was not used to improve the applicable facilities at the Property
related to the applicable contract);
<PAGE>
G. Purchaser shall receive a credit against the cash due at Closing
in an amount equal to all refundable Tenants security deposits and accrued
interest to which Tenants may be entitled pursuant to the Leases which are to
be assigned to Purchaser at the time of Closing.
H. If, at Closing, the Property or any part thereof shall be or
shall have been affected by an assessment or assessments which are or may
become payable in installments, then for purposes of this Agreement, all unpaid
installments of any such assessment, including those which are to become due
and payable and to be liens upon the Property shall be paid and discharged by
Purchaser. In addition, the parties agree to prorate any prepaid assessments
at Closing.
I. If such prorations result in a payment due Purchaser, then the
portion of the Purchase Price payable at Closing shall be reduced by such sum.
J. If such prorations result in a payment due Seller, then the same
shall be paid to Seller in addition to the portion of the Purchase Price
payable at Closing.
K. The parties hereto shall endeavor to prepare a schedule of
prorations no less than one (1) Business Day prior to Closing.
L. The parties hereto shall correct any arithmetic errors in
prorations as soon after the Closing as amounts are finally determined. The
parties hereto shall enter into the Post-Closing Adjustment Letter at the
Closing in the form of Exhibit J annexed hereto.
M. Except as set forth in Paragraph 12(b) hereof, 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. Except
with reference to arithmetic errors, all prorations will be final.
N. The provisions of this Paragraph 12 shall survive the Closing.
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 10.
14. ASSIGNMENT. Purchaser shall have the right to assign its interest in
this Agreement, provided such assignment is effected at least five (5) days
prior to the Closing Date. In the event of any such assignment, Seller agrees
to deliver any documents referred to in this Agreement to Purchaser's designee
and agrees that all surviving representations and warranties of Seller
hereunder shall be deemed to run in favor of, and be enforceable by said
designee as if it were Purchaser hereunder. Upon any assignment, Purchaser
agrees that it shall continue to be bound by all of Purchaser's indemnities
under this Agreement. The provisions of this Paragraph shall survive the
Closing.
<PAGE>
15. BROKER. The parties hereto acknowledge that Pinnacle Realty
Management Company ("Broker") is the only real estate broker involved in this
transaction. Purchaser has not paid and will not pay at any time before, at or
after the Closing, any fee, commission or compensation whatsoever to any person
whomsoever directly or indirectly on account of this Agreement, its
negotiation, or the sale hereby contemplated. Seller agrees to pay Broker a
commission or fee ("Fee") pursuant to a listing agreement between Seller and
Broker. Seller represents that 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 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 (other
than Broker) claiming by or through Purchaser, as a result of Purchaser's
actions, 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 reasonable approval of defense
counsel selected by Purchaser. Seller agrees to indemnify, defend and hold
harmless 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
claiming by or through Seller, as a result of Seller's actions, including but
not limited to Broker, 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 reasonable selection
of defense counsel. The provisions of this Paragraph will survive the Closing
and delivery of the Deed and any prior termination of this Agreement.
16. INSPECTION OF PROPERTY.
A. During the period (the "Inspection Period") commencing on the
date hereof and ending at 5:00 p.m. Chicago time on the later to occur of: (a)
August 30, 1996; or (b) ten (10) days following Purchaser's receipt of the
Survey (said date of expiration of the Inspection Period being referred to
herein as the "Inspection Period Expiration Date"), 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 at the Property of the
Leases and to conduct and prepare such studies, tests and surveys as Purchaser
may deem reasonably necessary and appropriate. In connection with Purchaser's
review of the Property, Seller agrees to deliver to Purchaser copies of the
current rent roll for the Property, the most recent tax and insurance bills,
utility account numbers, service contracts and unaudited year end 1994 and 1995
operating statements. During the Inspection Period, Seller will reasonably
cooperate with Purchaser in its inspection of the Property including, but not
limited to, furnishing (or making available) to Purchaser such information,
materials and documents which Purchaser may reasonably request and which are in
Seller's possession.
<PAGE>
B. Except as set forth in Section 5 hereof, all of the foregoing
tests, investigations and studies to be conducted under this Paragraph 16 by
Purchaser shall be at Purchaser's sole cost and expense, and Purchaser shall
restore the Property substantially 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 to the extent 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 Purchaser and reasonably acceptable to Seller.
C. If Purchaser is dissatisfied with the results of the tests,
studies or investigations performed or information received pursuant to this
Paragraph 16, in Purchaser's sole judgment for any reason or for no reason,
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 16 prior to the expiration of the Inspection Period, then the
right of Purchaser to terminate this Agreement pursuant to this Paragraph 16
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 and prepared by third parties (to the
extent that such delivery shall not constitute a breach of contract) in
connection with its due diligence during the Inspection Period; (ii) the
Earnest Money deposited by Purchaser shall be immediately paid to Purchaser,
together with any interest earned thereon and (iii) this Agreement shall
terminate 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 16.
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 16, shall survive the Closing, the delivery of the Deed
and the termination of this Agreement.
17. SELLER'S REPRESENTATIONS AND WARRANTIES AND LIABILITY.
A. Any reference herein to Seller's knowledge or to the best of
Seller's knowledge or to any representation, warranty or notice of any matter
or thing, shall only mean such knowledge or notice that has actually been
received by Phillip Schechter, and any representation or warranty of the Seller
is based upon those matters of which Phillip Schechter has actual knowledge,
provided that the representations and warranties made in (vi) and (vii) of
Paragraph 17B hereof are not so limited to Phillip Schechter's knowledge except
where specifically noted in subsection (vii) of Paragraph 17B. 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.
<PAGE>
B. Subject to the limitations set forth in Paragraph 17a above,
Seller hereby makes the following representations and warranties, all of which
are made to the best of Seller's knowledge, each of which shall be deemed made
as of the Closing and survive the Closing and delivery of the Deed for ninety
(90) days except for subparagraphs (vi) and (vii) which shall survive for the
statutory period:
(i) The present use and occupancy of the Property conform with
applicable building and zoning laws and Seller has received no notice that
any such laws, rules or regulations are being violated.
(ii) The rent rolls which Seller has submitted to Purchaser and
updated as of the Closing Date are true and accurate.
(iii) Except as set forth on Exhibit Q, Seller has no knowledge
of any pending or threatened litigation, claim, cause of action or
administrative proceeding concerning the Property.
(iv) There are no real estate tax protests or proceedings
affecting the Property.
(v) Seller has received no written notice of any pending or
threatened condemnation or similar proceeding or pending public
improvements in or adjoining the Land which will in any manner affect the
Property.
(vi) Each person executing and delivering this Agreement and all
documents to be executed and delivered in regard to the consummation of
the transaction which is the subject of this Agreement on behalf of
Seller represents to Purchaser that he has due and proper authority to
execute and deliver same. Seller has the full right, power and authority
to sell and convey the Property to Purchaser as provided herein and to
carry out its obligations hereunder. The consummation by Seller of the
transaction which is the subject of this Agreement will not conflict with
or result in a breach of any of the terms of any agreement or instrument
to which Seller is a party or by which Seller is bound or constitute a
default thereunder. No other party has any right to purchase the
Property, or any part thereof.
(vii) Neither Seller nor any of Seller's general partners is the
subject of any existing or pending or to the actual knowledge of Phillip
Schechter threatened or contemplated bankruptcy, solvency or other
debtor's relief proceeding.
(viii) Seller does not have any employees at the Property.
C. As a condition precedent to Purchaser's obligations at Closing
and regardless of the provisions of Paragraph 17A hereof , all representations
and warranties provided in this Agreement to be made by Seller as of the
Closing shall be true as of the Closing, whether or not Phillip Schechter has
actual knowledge that representation or warranty is not true.
<PAGE>
18. 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 transaction 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. This provision shall not preclude Purchaser from
instituting and maintaining any legal action against Seller; provided, however,
notwithstanding the foregoing to the contrary, the maximum liability of Seller
hereunder is $250,000. Seller shall not distribute $250,000 of the net
proceeds of the Purchase Price to its partners until ninety (90) days after the
Closing Date.
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 signed by the party giving the same or by its attorneys 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
Bannockburn Lake Office Plaza
2355 Waukegan Road
Suite A200
Bannockburn, Illinois 60015
Attn: Ilona Adams
847/267-1600
847/317-4462 (FAX)
with copies to: The Balcor Company
Bannockburn Lake Office Plaza
2355 Waukegan Road
Suite A200
Bannockburn, Illinois 60015
Attn: Al Lieberman
847/317-4360
847/317-4462 (FAX)
and
Andrew D. Small Esq.
Katten Muchin & Zavis
Suite 1600
525 West Monroe Street
Chicago, Illinois 60661
312/902-5489
312/902-1061 (FAX)
<PAGE>
TO PURCHASER: Mr. Thomas Gochberg
c/o TGM Associates L.P.
650 Fifth Avenue
28th Floor
New York, New York 10019
212/830-9300
212/399-6310 (FAX)
with a copy to: Alan E. Linder, Esq.
Bachner, Tally, Polevoy & Misher LLP
380 Madison Avenue
New York, New York 10017-2590
212/503-2090
212/682-5729 (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 or on the 4th Business Day after the
same is deposited in the United States Mail as registered or certified mail,
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.
21. EXECUTION OF AGREEMENT AND ESCROW AGREEMENT. Purchaser will execute
three (3) counterparts of this Agreement and three (3) counterparts of the
Escrow Agreement and forward them to Seller for Seller's execution. Seller
will forward one (1) fully executed counterpart of the executed Agreement to
Purchaser's attorneys and will forward the following to the Escrow Agent:
A. One (1) fully executed copy of this Agreement; and
B. Three (3) copies of the Escrow Agreement signed by the parties
with a direction to execute two (2) counterparts of the Escrow Agreement and
deliver a fully executed counterpart to Purchaser's attorneys and Seller.
Purchaser shall deliver the Earnest Money to Escrow Agent on the same day
that Purchaser executes the Escrow Agreement. If Purchaser's attorney has not
received one fully executed counterpart of this Agreement and the Escrow
Agreement within four (4) Business Days after Purchaser delivers the Earnest
Money to Escrow Agent, then at Purchaser's election, the Earnest Money and the
executed counterparts of this Agreement shall be returned to Purchaser.
22. GOVERNING LAW. The provisions of this Agreement shall be governed by
the laws of the State of Arizona.
23. ENTIRE AGREEMENT. This Agreement and the attached Exhibits
constitute the entire agreement between the parties with respect to the subject
matter hereof and supersedes all other negotiations, understandings and
representations made by and between the parties and the agents, servants and
employees.
<PAGE>
24. 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.
25. CAPTIONS. Paragraph or Exhibit 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.
26. MODIFICATIONS. This Agreement cannot be changed, modified,
discharged or terminated by any oral agreement or any other agreement and there
cannot be any waiver of the warranties, representations and covenants expressly
contained in this Agreement unless the same is in writing and signed by the
party against whom enforcement of the change, modification, discharge,
termination or waiver is sought.
27. SUCCESSORS AND ASSIGNS. This Agreement shall be binding on, and the
benefits hereof shall inure to, the successors and assigns of the parties
hereto.
28. INVALIDITY. If any term or provision of this Agreement, or any part
of such term or provision, or the application thereof to any person or
circumstance shall to any extent be held invalid or unenforceable, the
remainder of this Agreement or the application of such term or provision or
remainder thereof to persons or circumstances other than those as to which it
is held invalid and unenforceable shall not be affected thereby and each term
and provision of this Agreement shall be valid and enforceable to the fullest
extent permitted by law.
29. EXHIBITS. All Exhibits which are annexed to this Agreement are part
of this Agreement and are incorporated herein by reference.
30. NO THIRD PARTY BENEFICIARY. The provisions of this Agreement are for
the sole benefit of the parties to this Agreement and their successors and
assigns and shall not give rise to any rights by or on behalf of anyone other
than such parties.
31. ATTORNEYS' FEES. In the event that any litigation arises under this
Agreement, the prevailing party shall be entitled to recover, as a part of its
judgment, reasonable attorneys' fees.
32. CORRECTION DEED. Seller will, whenever reasonably requested so to do
by Purchaser, execute, acknowledge and deliver, or cause to be executed,
acknowledged and delivered, a correction deed as may be reasonably necessary in
order to complete the transaction which is the subject of this Agreement and to
carry out the intent and purposes of this Agreement. Such correction deed
shall be satisfactory to the attorneys for Purchaser. The provisions of this
Paragraph shall survive the Closing.
33. BUSINESS DAYS. If the date for performance of any act pursuant to
the Agreement is not a Business Day, then such act shall be performed on the
next succeeding Business Day. The term "Business Days" shall mean all days,
except Saturdays, Sundays and all days observed by the Federal Government as
legal holidays.
<PAGE>
34. OPERATIONS PRIOR TO CLOSING. Seller agrees that between the date
hereof and the Closing Date, Seller will:
A. continue to operate the Property as heretofore operated;
B. afford Purchaser and its representatives full access to the
Property and to Seller's books, records and files relating to and maintained at
the Property, at reasonable times, upon forty- eight (48) hours prior notice
and during normal business hours, including but not limited to the date of the
Closing;
C. not enter into any new Lease, nor amend, modify or terminate
any existing Lease without having obtained the prior written consent of
Purchaser in each such instance; notwithstanding the foregoing, Seller may
enter into Leases of not more than one year upon market rents and upon
commercially reasonable terms;
D. not apply any Tenant's security deposits to the discharge of
such Tenant's obligations unless such Tenant has vacated or been evicted from
such Tenant's demised premises;
E. advise Purchaser promptly of any litigation or governmental
proceeding to which Seller becomes a party affecting the Property (it shall be
a condition precedent to Purchaser's obligation to accept title, that there
shall be no such litigation or proceeding pending at Closing having a potential
adverse effect upon the Property or Seller's ability to convey the Property to
Purchaser);
F. not permit any alteration, structural modification or additions
to the Property;
G. not create (or agree to create) any exception to or covenant,
restriction, easement or other lien on the Property; and
H. not enter into any new Contract, nor amend, modify or terminate
any existing Contract.
[this space intentionally left blank]
<PAGE>
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date set forth above.
Executed by Purchaser on PURCHASER:
August 6, 1996.
TGM REALTY CORP. #5, a Delaware corporation
By: /s/ Steven C. Macy
----------------------------------
Name: Steven C. Macy
----------------------------------
Title: Executive Vice President
Executed by Seller on SELLER:
August 8, 1996.
BALCOR EQUITY PROPERTIES-XII, 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
-----------------------------
Title: Authorzied Representative
-----------------------------
<PAGE>
of Pinnacle Realty Management Company ("Broker"),
executes this Agreement in its capacity as a real estate broker and
acknowledges that the fee or commission ("Fee") due 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. Such Fee and any other amounts
due Broker shall be paid solely by Seller, and Purchaser shall have no
liability whatsoever to Broker under any circumstances, whether or not the
Closing occurs. Broker also acknowledges that payment of the aforesaid Fee is
conditioned upon the Closing and the receipt of the Purchase Price by Seller.
Broker agrees to deliver a receipt to Seller at the Closing for the Fee and a
release stating that no other fees or commissions are due to Listing Broker
from Seller or Purchaser. A copy of broker's receipt and release will be
delivered to Purchaser at the Closing.
PINNACLE REALTY MANAGEMENT COMPANY
By:
----------------------------------------
Tax I.D. Number
------------------------------
<PAGE>
EXHIBITS
A - Legal
B - Personal Property
C - Escrow Agreement
D - Deed
E - Endorsements
F - Bill of Sale
G - Assignment of Service Contracts
H - Assignment of Leases and Security Deposits
I - Notice to Tenants
J - Post-Closing Adjustment Letter
K - Non-Foreign Affidavit
L - Assignment of Intangibles
M - Assignment of Licenses and/or Permits
N - Assignment of Warranties and Guarantees
O - Information for Real Estate 1099-S Report Filing
P - Acknowledgment of Title Insurer with regard to Real Estate 1099-S
Report Filing
Q - Litigation
<PAGE>
MASTER AMENDMENT AND AGREEMENT
This Master Amendment and Agreement (this "Agreement") is entered into as
of this 22nd day of May, 1996 by and among the selling entities set forth on
the signature pages attached hereto (each entity being referred to herein as a
"Seller" and collectively as the "Sellers") and ERP Operating Limited
Partnership, an Illinois limited partnership ("Purchaser").
R E C I T A L S
A. Each Seller and the Purchaser have entered into an Agreement of Sale
dated as of April 23, 1996 (herein called the "Purchase Agreement") for the
sale by such Seller to Purchaser of certain property described therein. All
capitalized terms which are used herein but which are not otherwise defined
herein shall have the meaning ascribed to such term in the applicable Purchase
Agreement.
B. Each Purchase Agreement provides that during the Approval Period,
Purchaser shall have the right to review the status of title of the Property
(including, determining what endorsements, if any, the Title Insurer will make
available to Purchaser).
C. Each Purchase Agreement further provides that each Seller will
deliver to Purchaser an Updated Survey and Purchaser shall have ten (10) days
from the date of receipt of the Updated Survey to approve the Updated Survey.
D. Purchaser has reviewed the status of title for each Property and has
reviewed certain of the Updated Surveys; provided, however, Purchaser and
Seller have not yet agreed upon "Permitted Exceptions" for each Property.
E. Purchaser and Seller desire to amend each Purchase Agreement to give
Purchaser and Seller until May 23, 1996 to agree upon Permitted Exceptions for
each Property.
NOW, THEREFORE, for and in consideration of the sum of Ten Dollars
($10.00) and other good and valuable consideration, the receipt and sufficiency
of which is hereby acknowledged, each Seller (with respect to the Purchase
Agreement to which such Seller is a party) and the Purchaser, hereby agree as
follows:
<PAGE>
A G R E E M E N T
1. RECITALS. The recitals set forth above are hereby incorporated
herein by reference as if same were fully set forth herein.
2. AMENDMENT. Purchaser and Seller hereby agree that Purchaser and
Seller shall have until the later of: (i) the expiration of the Approval Period
(as same may have been extended) or (ii) May 23, 1996 (the "Deadline Date") to
agree upon Permitted Exceptions for each Purchase Agreement (subject to
Purchaser's additional right to have 10 days to review Updated Surveys). If
Purchaser and Seller are unable to agree upon Permitted Exceptions on or prior
to the Deadline Date, then Seller shall have the right to elect to either
terminate the applicable Purchase Agreement, in which case the applicable
Earnest Money, including interest thereon, shall be returned to Purchaser
immediately following the applicable Seller's receipt of the Reports or (ii)
agree to cure the title objections identified by Purchaser as being
problematic, which cure may be effectuated by causing the Title Insurer, at
such Seller's expense, to insure over any objection, if applicable.
3. Miscellaneous
A. Except as modified herein, each Purchase Agreement shall remain
unmodified and in full force and effect.
B. This Amendment may be executed in any number of counterparts,
each of which shall be deemed an original but all of which shall constitute one
and the same instrument.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the
date and year first above written.
[See Attached Signature Blocks]
<PAGE>
PURCHASER
ERP OPERATING LIMITED PARTNERSHIP,
an Illinois limited partnership
By: Equity Residential Properties Trust,
a Maryland real estate investment
trust
By: /s/Daniel L. Baskes
----------------------------------
Name: Daniel L. Baskes
--------------------------------
Title: Attorney
-------------------------------
<PAGE>
Brierwood Apartments
Brierwood Partners Limited Partnership, 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, a general partner
By: /s/ Alan Lieberman
----------------------------
Name: Alan Lieberman
Its: Senior Vice President
<PAGE>
MASTER AMENDMENT AND AGREEMENT #2
This Amendment and Agreement #2 (this "Agreement") is entered into as of
this 22nd day of May, 1996 by and among the selling entities set forth on the
signature pages attached hereto (each entity being referred to herein as a
"Seller" and collectively as the "Sellers") and ERP Operating Limited
Partnership, an Illinois limited partnership ("Purchaser").
R E C I T A L S
A. Each Seller and the Purchaser have entered into an Agreement of Sale
dated as of April 23, 1996 (herein called the "Purchase Agreement") for the
sale by such Seller to Purchaser of certain property described therein. All
capitalized terms which are used herein but which are not otherwise defined
herein shall have the meaning ascribed to such terms in the applicable Purchase
Agreement.
B. Each Purchase Agreement provides that during the Approval Period,
Purchaser shall have the right to review the status of title of the Property
(including, determining what endorsements, if any, the Title Insurer will make
available to Purchaser).
C. Each Purchase Agreement further provides that each Seller will
deliver to Purchaser an Updated Survey and Purchaser shall have ten (10) days
from the date of receipt of the Updated Survey to approve the Updated Survey.
D. Purchaser has reviewed the status of title for each Property and has
reviewed certain of the Updated Surveys.
E. The Purchase Agreements further provide that promptly following the
Approval Period, Purchaser and each Seller will identify the exceptions to
title which have been agreed to by Purchaser and such Seller.
F. The parties desire to enter into this Agreement to identify the
"Permitted Exceptions" for each Property and to set forth the parties agreement
with respect to title and survey matters as of the date hereof and to also set
forth certain additional agreements of the parties.
NOW, THEREFORE, for and in consideration of the sum of Ten Dollars
($10.00) and other good and valuable consideration, the receipt and sufficiency
of which is hereby acknowledged, each Seller (with respect to the Purchase
Agreement to which such Seller is a party) and the Purchaser, hereby agree as
follows:
<PAGE>
A G R E E M E N T
1. Surveys.
A. As of the date hereof, Purchaser has not yet received and/or
reviewed the Updated Surveys for the following properties:
(1) Briarwood Place
(2) Canyon Sands
(3) Desert Sands
(4) Sunnyoak Village
(5) Rosehill Pointe
(6) Post Place
In accordance with each Purchase Agreement, Purchaser shall have ten (10)
days following Purchaser's receipt of each Updated Survey to approve or
disapprove of the applicable Updated Survey, all as more specifically set forth
in each Purchase Agreement. If the Updated Survey is approved by Purchaser,
all items disclosed by the Updated Survey shall be "Permitted Exceptions".
B. In addition, Purchaser has reviewed and approved of the Updated
Surveys for the following properties.
(1) Brierwood Apts.
(2) Country Ridge
(3) Forest Ridge I
(4) Forest Ridge II
(5) Lakeville
(6) Mallard Cove
(7) Park Place I
(8) Park Place II
(9) Ridgetree I
(10) Ridgetree II
Each Seller (solely with respect to the Property owned by such Seller)
hereby agrees to reasonably assist Purchaser in causing the surveyor to correct
certain clean up items identified by Purchaser during its review of the Survey.
2. Title Matters. Purchaser has reviewed the title commitments for all
of the properties. Attached hereto as Exhibit A is a list of "Permitted
Exceptions" for each Property. Notwithstanding anything contained in this
Agreement or the exhibits hereto to the contrary, any Permitted Exceptions set
forth on Exhibit A which have the notation "awaiting survey" written next to
the applicable Permitted Exception (herein called "Survey Based Exceptions")
have not been agreed to by Purchaser because Purchaser has not yet reviewed the
Updated Survey which identifies the location of the applicable Permitted
Exception. Purchaser shall have until 10 days following Purchaser's receipt of
the Updated Survey to advise the applicable Seller, in writing, whether any
Survey Based Exception is or is not reasonably acceptable to Purchaser. If
Purchaser advises the applicable Seller that any Survey Based Exception is not
reasonably acceptable to Purchaser, then the applicable Seller shall have five
(5) business days following receipt of such notice, to elect to either
terminate the applicable Purchase Agreement, in which case the applicable
Earnest Money, including interest thereon, shall be returned to Purchaser
immediately following the applicable Seller's receipt of the Reports or (ii)
<PAGE>
agree to cure the title objections identified by Purchaser, which cure may be
effectuated by causing the Title Insurer, at such Seller's expense, to insure
over any objection, if applicable.
3. Assignment of Partnership Interests. If requested to do so by
Purchaser, each Seller hereby agrees, at no cost or expense to such Seller, to
cooperate in good faith with Purchaser in structuring the conveyance of
Property by the applicable Seller to Purchaser as a conveyance of title to such
Property by the applicable Seller into a partnership or limited liability
company having the applicable Seller and/or affiliates of the applicable Seller
as its sole partners (or members) and then, at closing, assigning to Purchaser
the partnership (or membership) interests in the partnership (or limited
liability company). In such case, the Purchaser hereby agrees to indemnify and
hold the applicable Seller harmless from and against any and all loss, cost,
expense, liability or damage (including reasonable attorneys fees) incurred by
such Seller arising out of Seller's conveyance in and out of such partnership
(or limited liability company) provided that such loss, cost, expense,
liability or damage (including reasonable attorneys fees) would not have been
suffered or incurred by such Seller if such Property had been conveyed directly
by such Seller to Purchaser.
4. Miscellaneous
A. Except as modified herein, each Purchase Agreement shall remain
unmodified and in full force and effect.
B. This Amendment may be executed in any number of counterparts,
each of which shall be deemed an original but all of which shall constitute one
and the same instrument.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the
date and year first above written.
[See Attached Signature Blocks]
<PAGE>
PURCHASER
ERP OPERATING LIMITED PARTNERSHIP,
an Illinois limited partnership
By: Equity Residential Properties Trust,
a Maryland real estate investment
trust
By: /s/Linda A. Menich
------------------------------------
Name: Linda A. Menich
------------------------------------
Title: Assistant Vice President
------------------------------------
<PAGE>
Brierwood Apartments
Brierwood Partners Limited Partnership, 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, a general partner
By: /s/Alan Lieberman
----------------------------
Name: Alan Lieberman
Its: Senior Vice President
<PAGE>
May 24, 1996
VIA FACSIMILE MAIL
Brierwood Partners The Balcor Company Daniel J. Perlman, Esq.
Limited Partnership 2355 Waukegan Road Katten Muchin & Zavis
c/o The Balcor Company Suite A200 Suite 2100
2355 Waukegan Road Bannockburn, IL 60015 525 W. Monroe Street
Suite A200 Attn: Al Lieberman Chicago, IL 60661
Bannockburn, IL 60015
Attn: Ilona Adams
Re: Agreement of Sale, dated as of the 23rd day of April, 1996 (the
"Agreement") between Brierwood Partners Limited Partnership, as
Seller, and ERP Operating Limited Partnership, as Purchaser, for the
purchase of Brierwood Apartments, Jacksonville, Florida (the
"Property").
Dear Ms. Adams and Messrs. Lieberman and Perlman:
Purchaser hereby requests that the Agreement be modified to change "Five
Million Four Hundred Thousand ($5,400,000.00)" to "Five Million Two Hundred
Fifty Thousand ($5,250,000.00)" in the second line of Section 1 thereof.
Purchaser further requests that the Agreement be modified to change "July 19,
1995" in the seventh line of Section 9 thereof to "August 3, 1996". Please
acknowledge Seller's acceptance of these modifications to the Agreement by
executing this letter in the space provided below and returning it via
facsimile mail to Purchaser.
This letter will serve as notice to Seller, as required by Section 2(B) of
the Agreement, that Purchaser intends to assume the existing debt on the
Property, and the additional Earnest Money required under such Section will be
deposited with Escrow Agent on May 28, 1996.
ERP OPERATING LIMITED PARTNERSHIP,
an Illinois limited partnership
By: Equity Residential Properties Trust,
a Maryland Real Estate Investment
Trust, its general partner
By: /s/ Bruce C. Strohm
----------------------------------
Bruce C. Strohm
Executive Vice President
<PAGE>
Approved and Accepted this 24th day of May, 1996
BRIERWOOD PARTNERS LIMITED PARTNERSHIP,
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, a general partner
By: /s/ Alan Lieberman
-----------------------------
Alan Lieberman
Senior Vice President
<PAGE>
July 8, 1996
VIA FACSIMILE MAIL
Briarwood Partners The Balcor Company Daniel J. Perlman, Esq.
Limited Partnership 2355 Waukegan Road Katten Muchin & Zavis
c/o The Balcor Company Suite A200 Suite 2100
2355 Waukegan Road Bannockburn, IL 60015 525 W. Monroe Street
Suite A200 Attn: Al Lieberman Chicago, IL 60661
Bannockburn, IL 60015
Attn: Ilona Adams
Re: Agreement of Sale, dated as of the 23rd day of April, 1996 (the
"Agreement") between Brierwood Partners Limited Partnership, as
Seller, and ERP Operating Limited Partnership, as Purchaser, for the
purchase of Brierwood Apartments, Jacksonville, Florida (the
"Property").
Dear Ms. Adams and Messrs. Lieberman and Perlman:
Purchaser hereby requests that the Agreement be modified to change "August
3, 1996" in the seventh line of Section 9 thereof to "September 3, 1996".
Please acknowledge Seller's acceptance of this modification to the Agreement by
executing this letter in the space provided below and returning it via
facsimile mail to Purchaser.
ERP OPERATING LIMITED PARTNERSHIP,
an Illinois limited partnership
By: Equity Residential Properties Trust,
a Maryland Real Estate Investment
Trust, its general partner
By: /s/ Shelley L. Dunck
----------------------------------
Shelley L. Dunck
Vice President
<PAGE>
Approved and Accepted this 8th day of July, 1996
BRIERWOOD PARTNERS LIMITED PARTNERSHIP,
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, a general partner
By: /s/ Alan Lieberman
------------------------------
Alan Lieberman
Senior Vice President
<PAGE>
<TABLE> <S> <C>
<ARTICLE> 5
<MULTIPLIER> 1000
<S> <C>
<PERIOD-TYPE> 6-MOS
<FISCAL-YEAR-END> DEC-31-1996
<PERIOD-END> JUN-30-1996
<CASH> 345
<SECURITIES> 0
<RECEIVABLES> 184
<ALLOWANCES> 0
<INVENTORY> 0
<CURRENT-ASSETS> 2662
<PP&E> 43536
<DEPRECIATION> 20620
<TOTAL-ASSETS> 25577
<CURRENT-LIABILITIES> 1221
<BONDS> 29866
0
0
<COMMON> 0
<OTHER-SE> (5510)
<TOTAL-LIABILITY-AND-EQUITY> 25577
<SALES> 0
<TOTAL-REVENUES> 4941
<CGS> 0
<TOTAL-COSTS> 2460
<OTHER-EXPENSES> 863
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 1455
<INCOME-PRETAX> 163
<INCOME-TAX> 0
<INCOME-CONTINUING> 163
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 163
<EPS-PRIMARY> 4.30
<EPS-DILUTED> 4.30
</TABLE>
