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) December 2, 1996
BALCOR EQUITY PENSION INVESTORS-I
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Exact Name of Registrant
Illinois 2-85270
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State or other jurisdiction Commission file number
2355 Waukegan Road
Suite A200
Bannockburn, Illinois 36-3240345
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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
<PAGE>
ITEM 2. ACQUISITION OR DISPOSITION OF ASSETS
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GSB Office Building
In 1984, the Partnership acquired the GSB Office Building, Bala Cynwyd,
Pennsylvania, utilizing approximately $20,695,000 of offering proceeds.
On December 11, 1996, the Partnership contracted to sell the property for a
sale price of $20,500,000 to an unaffiliated party, Berwind Property Group, a
Pennsylvania corporation. The purchaser has deposited $400,000 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 January 23, 1997.
From the proceeds of the sale, the Partnership will pay $410,000 as a brokerage
commission to an affiliate of the third party providing property management
services for the property. The Partnership will receive the remaining proceeds
of approximately $20,090,000, less closing costs. Of such proceeds, $500,000
will be retained by the Partnership and will not be available for use or
distribution by the Partnership until December 1, 1997. 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.
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
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a) Oxford Hills Apartments
As previously reported, on October 16, 1996, the Partnership contracted to sell
Oxford Hills Apartments, St. Louis County, Missouri, for a sale price of
$22,278,500 to an unaffiliated party, Arbor Properties, Inc., a Texas
corporation. The purchaser assigned its rights under the agreement of sale to
its affiliate, Oxford Hill Limited Partnership, and the sale closed on November
25, 1996. From the proceeds of the sale, the Partnership paid $278,481 to an
unaffiliated party as a brokerage commission, $167,089 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 and $29,569
in closing costs. The Partnership received the remaining proceeds of
$21,803,361. Of such proceeds, $250,000 is being retained by the Partnership
and will not be available for use or distribution by the Partnership until 120
days after closing.
b) Park Center Office Building
In 1984, the Partnership funded a $11,000,000 first mortgage loan
collateralized by the Park Center Office Building, Maitland, Florida. The
Partnership obtained title to the property through a deed in lieu of
foreclosure in 1986.
<PAGE>
On December 2, 1996, the Partnership contracted to sell the property for a sale
price of $8,300,000 to an unaffiliated party, CMD Realty Investment Fund II,
L.P., an Illinois limited partnership. The sale closed on December 6, 1996.
From the proceeds of the sale, the Partnership paid $166,000 as a brokerage
commission to an affiliate of the third party providing property management
services for the property and $95,460 in closing costs. The Partnership
received the remaining proceeds of $8,038,540. Of such proceeds, $200,000 is
being held in escrow and will not be released until the later of the resolution
of certain tenant claims or 180 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.
c) Pacific Center Office Buildings
As previously reported, on October 10, 1996, the joint venture consisting of
the Partnership and an affiliate (the "Joint Venture") which owns the Pacific
Center Office Buildings, Dallas, Texas, contracted to sell the property for a
sale price of $16,750,000 to an unaffiliated party, Transwestern Investment
Company, L.L.C. The Joint Venture and the purchaser subsequently agreed to
reduce the sale price to $15,950,000. The purchaser assigned its rights under
the agreement of sale to its affiliate, Transwestern Office Partners I, LLC,
and the sale closed on December 18, 1996. From the proceeds of the sale, the
Joint Venture paid $319,000 as a brokerage commission to an affiliate of the
third party providing property management services for the property and
$122,046 in closing costs. The Joint Venture received the remaining proceeds of
$15,508,954, of which the Partnership's share is $11,955,853.
<PAGE>
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 the GSB Office Building, Bala Cynwyd, Pennsylvania.
(99) (a) (i) Agreement of Sale and attachment thereto relating to
the sale of the Park Center Office Building, Maitland,
Florida.
(ii) Escrow Agreement relating to the sale of the Park
Center Office Building, Maitland, Florida.
(iii)First Amendment to Escrow Agreement relating to the
sale of the Park Center Office Building, Maitland,
Florida.
(b) (i) First Amendment to Agreement of Sale relating to the
sale of the Pacific Center Office Buildings, Dallas,
Texas.
(ii) Second Amendment to Agreement of Sale relating to the
sale of the Pacific Center Office Buildings, Dallas,
Texas.
No information is required under Items 1, 3, 4, 6 and 8 and these items
have, therefore, been omitted.
Signature
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Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this Report to be signed on its behalf by the
undersigned hereunto duly authorized.
BALCOR EQUITY PENSION INVESTORS-I
By: Balcor Equity Partners-I, an Illinois
general partnership, its general 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: December 26, 1996
<PAGE>
AGREEMENT OF SALE
THIS AGREEMENT OF SALE (this "Agreement"), is entered into as of the 11th
day of December, 1996, by and between Berwind Property Group, Inc., a
Pennsylvania corporation ("Purchaser"), and WRGSB Associates, an Illinois
limited partnership ("Seller").
W I T N E S S E T H:
1. PURCHASE AND SALE. Purchaser agrees to purchase and Seller agrees to sell
at the price of Twenty Million, Five Hundred Thousand Dollars ($20,500,000)
("Purchase Price"), and on the terms and conditions hereinafter set forth, the
property commonly known as the GSB Building, One Belmont Avenue, Bala Cynwyd,
Pennsylvania, consisting of the following:
1.1 All of Seller's right, title and interest in the real property
("Land") and all buildings and other improvements ("Improvements") situated on
the Land, as more particularly described on Exhibit A attached hereto and made
a part hereof (the Land and the Improvements are sometimes referred to herein
together as the "Property"), together with all easements and appurtenances
thereunto belonging and all of Seller's right, title and interest in and to all
streets, alleys and public ways adjacent thereto, if any, and together with all
of Seller's right, title and interest in and to all strips and gores located on
or adjacent to the Property or located between any parcels constituting the
Land, if any;
1.2 The personal property set forth on Exhibit B attached hereto
("Personal Property");
1.3 The tenant leases described in the rent roll set forth on Exhibit C
attached hereto and made a part hereof together with such other tenant leases
of the Property as may be made prior to Closing (as hereinafter defined) in
accordance with the terms (including any applicable Purchaser approval rights)
of Paragraph 12 of this Agreement ("Leases"), and all unapplied security
deposits deposited by tenants under the Leases;
1.4 If and to the extent assignable and to the extent of Seller's
interest therein, if any: (a) all guarantees, warranties and indemnifications,
if any, received from suppliers, contractors, materialmen or subcontractors
arising out of, or in connection with, the installation, construction or
maintenance of the Property including, without limitation, the right to sue any
obligor for any breach of any covenant, agreement, representation, warranty or
guarantee contained therein; (b) all licenses, permits, certificates of
occupancy and franchises issued by any federal, state, county or municipal
authority relating to the use, maintenance or operation of the Property running
to or in favor of Seller or pertaining to the Property; (c) all trade styles,
and trade names, including, without limitation, the name "GSB Building", and
all contract rights, brochures, manuals, lists of prospective tenants,
advertising material, books and records, utility contracts and telephone
numbers; (d) the plans and specifications for the Improvements and all
unexpired claims and sureties, if any, received in connection with the
construction, improvement or equipment of the Improvements; and (e) those
service and maintenance contracts set forth in Exhibit D ("Service Contracts")
which are Assumed Contracts (hereafter defined).
<PAGE>
1.5 Notwithstanding anything contained in this Agreement to the contrary,
Seller is not conveying or assigning to Purchaser the items described in
Paragraph 15.3 hereof.
2. PURCHASE PRICE. The Purchase Price shall be paid by Purchaser as follows:
2.1 Upon the execution of this Agreement, the sum of Four Hundred
Thousand Dollars ($400,000) ("Earnest Money"), by check payable to the escrow
agent, to be held in escrow by and in accordance with the provisions of the
Escrow Agreement ("Escrow Agreement") attached hereto as Exhibit E; and
2.2 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, on or before 2:00 p.m. Chicago time. Any
provisions herein providing for the delivery of the Earnest Money to either
party hereof are intended to mean the Earnest Money plus any interest earned
thereon and less all escrow and investment fees.
3. TITLE COMMITMENT AND SURVEY.
3.1 Attached hereto as Exhibit F is a copy of a title commitment for an
owner's standard title insurance policy issued by Charter Title Company, as
agent for Lawyers Title Insurance Corporation, (hereinafter referred to as
"Title Insurer"), dated August 23, 1996 for the Property ("Title Commitment").
For purposes of this Agreement, "Permitted Exceptions" shall mean: (a) general
ad valorem real estate taxes for the year 1996 and subsequent years not yet due
and payable; (b) matters shown on the Survey (as hereinafter defined); (c)
judgments against Purchaser and liens and other matters caused solely by the
affirmative action of Purchaser or the failure of Purchaser to pay for any
services or materials provided to Purchaser; (d) the title exceptions set forth
in Schedule B of the Title Commitment as Numbers 7-12; (e) the rights of
tenants under Leases; and (f) liens or encumbrances of a definite or
ascertainable amount which may be removed or insured over (but with respect to
liens or encumbrances to be insured over, not to exceed $25,000 without
Purchaser's prior consent, which shall not be unreasonably withheld) by the
payment of money or other security at the Closing Date, and which Seller
removes or causes to be insured over at the Closing Date in accordance with
Paragraph 5 hereof. All other exceptions to title shall be referred to as
"Unpermitted Exceptions". On the Closing Date, Title Insurer shall deliver to
Purchaser a standard title policy in conformance with the previously delivered
Title Commitment, together with endorsements requested by Purchaser (to the
extent available) and subject only to Permitted Exceptions (excluding, however,
the Permitted Exceptions described in subclause (f) above) and Unpermitted
Exceptions waived in writing by Purchaser ("Title Policy"). The Title Policy
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 and
requirements therein stated. Purchaser and Seller shall share equally the
costs of the Title Commitment and Title Policy and Purchaser shall pay for the
cost of any endorsements to, or extended coverage on, the Title Policy as
requested by Purchaser or Purchaser's lender.
<PAGE>
3.2 Purchaser has received a survey of the Property dated October 25,
1996 prepared by John B. Yerkes, Jr. under Order Number B4588 ("Survey").
Purchaser and Seller shall share equally the cost of the Survey. Purchaser
hereby acknowledges that all matters disclosed by the Survey are acceptable to
Purchaser and are Permitted Exceptions for purposes of Paragraph 3.1 above.
3.3 The obligations of Purchaser and Seller to pay various costs set
forth in Paragraphs 3.1 and 3.2 shall survive the termination of this
Agreement.
4. PAYMENT OF CLOSING COSTS.
4.1 In addition to the costs set forth in Paragraphs 3.1 and 3.2,
Purchaser and Seller shall share equally the costs of the documentary or
transfer stamps to be paid with reference to the Deed (as hereinafter defined)
and all other stamps, intangible, transfer, 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.
5. CONDITION OF TITLE.
5.1 If, prior to Closing (as hereinafter defined), a date-down to the
Title Commitment discloses any new Unpermitted Exceptions which, in the
aggregate, do not exceed $25,000 (each, a "Minor Unpermitted Exception"),
Seller shall, at Seller's expense, bond over, cure and/or have such Minor
Unpermitted Exceptions removed from the Title Commitment or have the Title
Insurer commit to insure against loss or damage that may be occasioned by such
Minor Unpermitted Exceptions. Notwithstanding the foregoing, if such date down
to the Title Commitment discloses any new Unpermitted Exceptions which, in the
aggregate, equal or exceed $25,000, Seller shall have no obligation to bond
over, cure and/or have such exceptions 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 and Purchaser shall have no
obligation to accept title insurance over such Unpermitted Exception. If
Seller fails to bond over, cure or have any Unpermitted Exception removed or
have the Title Insurer commit to insure as specified above within five (5)
business days from the date of the date down to the Title Commitment, or if
Seller offers to insure over any new Unpermitted Exceptions which, in the
aggregate equal or exceed $25,000 but Purchaser refuses to accept insurance
over such Unpermitted Exception, Purchaser may terminate this Agreement upon
written notice to Seller within three (3) days after the expiration of such
five (5) business 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 action of Seller with the intention of preventing the sale
(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 $25,000 or the
Title Insurer is willing to insure over a Minor Unpermitted Exception for a
cost not to exceed $25,000 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 14 herein. Absent notice from Purchaser to Seller
in accordance with the preceding sentence, Purchaser shall be deemed to have
<PAGE>
elected to take title subject to said Unpermitted Exception, without any
reduction in or setoff against the Purchase Price as a result thereof. If
Purchaser terminates this Agreement in accordance with the terms of this
Paragraph 5.1, this Agreement shall terminate 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 those covenants and obligations that specifically survive
termination of this Agreement.
5.2 Seller agrees to convey fee simple title to the Property to Purchaser
by special warranty deed ("Deed") (in the form attached hereto as Exhibit G) in
recordable form subject only to the Permitted Exceptions and any Unpermitted
Exceptions not objected to by Purchaser in accordance with Paragraph 5.1 above.
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 through the Closing. Seller agrees to maintain its existing "all risk"
replacement cost casualty insurance and rent loss insurance in place until the
Closing Date. 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 $100,000 (as determined by Seller 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 if such repair or restoration may be
completed prior to the Closing Date 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 or payable to Seller on account of such fire or
casualty plus the amount of Seller's insurance deductible. Seller shall
promptly notify Purchaser in writing of any such fire or other casualty and
Seller's estimate 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 $100,000 (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 from Seller and Seller and
Purchaser agree upon the amount of such damages, and upon the exercise of such
option by Purchaser this Agreement shall terminate without further action by
the parties, 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, except for those covenants and
obligations which expressly survive termination of this Agreement. In the
event that Purchaser does not exercise the option to terminate in accordance
with this Paragraph 6.1, 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 shall pay to Purchaser
the amount of Seller's insurance deductible. Notwithstanding anything contained
herein to the contrary, Seller's obligation to transfer all insurance proceeds
paid to Seller as set forth more fully in this Paragraph 6.1 shall survive the
Closing and the recording of the Deed.
<PAGE>
6.2 If between the date of this Agreement and the Closing Date, any
condemnation or eminent domain proceedings are initiated 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) impair access to parking or materially
reduce available parking; (iii) 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 (iv) adversely impair the use of the Property 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,
except for those covenants and obligations hereunder which expressly survive
termination of this Agreement; 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 or to be made in connection with such condemnation or eminent domain
proceedings. Notwithstanding anything contained herein to the contrary,
Seller's obligation to transfer Seller's interest in such award as set forth
more fully in this Paragraph 6.2.2 shall survive the Closing and the recording
of the Deed.
Purchaser shall then notify Seller, within five (5) 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 five (5) business day period, Purchaser shall be deemed
to have elected to proceed with Closing in accordance with Paragraph 6.2.2. If
between the 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 commencing on the date hereof and ending at 5:00
p.m. Chicago time on December 23, 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 to
inspect the Property and to conduct and prepare such studies, tests and surveys
as Purchaser may deem necessary and appropriate, including, without limitation,
a review of the Leases and any additional information reasonably requested by
Purchaser which relates to the Property and is in the possession of Seller or
<PAGE>
Affiliates of Seller (defined below). In connection with Purchaser's review of
the Property, Seller has delivered to Purchaser copies of the current rent roll
for the Property, the most recent tax and insurance bills, copies of the
Leases, utility account numbers, a personal property inventory, the Service
Contracts, unaudited annual operating statements for 1995 and year-to-date
monthly unaudited operating statements for 1996.
All of the foregoing tests, investigations and studies to be conducted
under this Paragraph 7.1 by Purchaser shall be subject to the following:
(i) Such tests, inspections and investigations shall take place
during normal business hours upon reasonable notice to Seller or its designated
agents;
(ii) Except as may be required by Purchaser to complete its due
diligence during the Inspection Period or to obtain financing in order to close
this transaction, all information set forth in the documents to be reviewed
hereunder by Purchaser, its employees and agents shall be held in strict
confidence until Closing and thereafter in the event that the Closing does not
occur;
(iii) In the event the Closing does not occur, Purchaser shall
promptly return to Seller any documents obtained from Seller or Seller's
agents;
(iv) Purchaser shall not suffer or permit any lien, claim or
charge of any kind whatsoever to attach to the Property or any part thereof;
and
(v) such tests, investigations and studies shall be at
Purchaser's sole cost and expense, and in the event of any damage to the
Property caused by Purchaser, its agents, engineers, employees, contractors or
surveyors (including, without limitation, pavement, landscaping and surface
damage), Purchaser shall pay the cost incurred by Seller to restore the
Property to the condition existing prior to the performance of such tests,
investigations or studies.
Purchaser shall defend, indemnify and hold Seller and any affiliate or parent
of Seller, and all shareholders, employees, officers, directors and partners of
Seller or Seller's affiliate or parent (hereinafter collectively referred to as
"Affiliates of Seller") harmless from any and all liability, cost and expense
(including without limitation, reasonable attorneys' 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, tests,
studies and inspections 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. 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.
<PAGE>
If Purchaser, in its sole discretion, is dissatisfied with the results of
the tests, studies or investigations performed or information received pursuant
to this Agreement, or otherwise, 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 the Earnest Money deposited by Purchaser shall be
immediately paid to Purchaser, together with any interest earned thereon, less
the sum of One Hundred and No/100 Dollars ($100.00), which shall be paid to
Seller in consideration for such period of inspection, and neither Purchaser
nor Seller shall have any right, obligation or liability under this Agreement,
except for those covenants and obligations which expressly survive the
termination of this Agreement. Notwithstanding anything contained herein to
the contrary, Purchaser's obligation to indemnify Seller and pay the costs of
restoring the Property, as more fully set forth in this Paragraph 7.1, shall
survive Closing and recording of the Deed and the termination of this
Agreement, as applicable.
7.2 Except for the express representations and warranties of Seller set
forth herein, 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 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, ordinary wear and tear and loss by fire or other
casualty or condemnation (which is governed by Paragraph 6 above) excepted and
that Seller makes no warranty or representation, express or implied, or arising
by operation of law, including, but not limited to, any warranty of condition,
habitability, merchantability or fitness for a particular purpose, in respect
of the Property. 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: (i) the condition of the Land or any improvements comprising
the Property; (ii) the existence or non-existence of any pollutant, toxic waste
and/or any hazardous materials or substances; (iii) economic projections or
market studies concerning the Property, or the income to be derived from the
Property; (iv) any development rights, taxes, bonds, covenants, conditions and
restrictions affecting the Property; (v) the nature and extent of any right of
way, lease, lien, encumbrance, license, reservation or other title matter;
(vi) water or water rights, topography, geology, drainage, soil or subsoil of
the Property; (vii) the utilities serving the Property; (viii) the suitability
of the Property for any and all activities and uses which Purchaser may elect
to conduct thereon; or (ix) the compliance of the Property with any zoning,
environmental, building or other laws, rules or regulations affecting the
Property. Seller makes no representation or warranty that the Property
complies with the Americans with Disabilities Act or any fire code or building
code. Except as expressly set forth below, Seller makes no representations or
<PAGE>
warranties concerning hazardous materials or substances. With the exception of
any liability under any express representation of Seller set forth herein,
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 or substances on, or environmental conditions
of, the Property, whether known or unknown. As used herein, the term
"hazardous materials or 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, 42
U.S.C. Section 9601 et seq.; the Toxic Substance Control Act, 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, 42 U.S.C. Section 9601. et
seq.; the Clean Water Act, 33 U.S.C. Section 1251; the Safe Drinking Water Act,
42 U.S.C. Section 300f et seq; the Clean Air Act, 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, "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. Purchaser acknowledges that having been given the opportunity to
inspect the Property, Purchaser is relying solely on its own investigation of
the Property and not on any information provided or to be provided by Seller.
Purchaser further acknowledges that the information provided and to be provided
with respect to the Property was obtained from a variety of sources, and that
Seller (x) has not made any independent investigation or verification of such
information and (y) makes no representations as to the accuracy or completeness
of such information, except as provided herein.
7.3 Seller has provided to Purchaser certain unaudited historical
financial information regarding the Property relating to certain periods of
time in which Seller owned the Property. Seller and Purchaser hereby
acknowledge that such information has been provided to Purchaser at Purchaser's
request solely as illustrative material. Except for the express representations
and warranties of Seller set forth herein, 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.
<PAGE>
7.4 Seller has provided to Purchaser the reports and materials shown on
Exhibit O attached hereto and made a part hereof ("Existing Reports"). Seller
makes no representation or warranty concerning the accuracy or completeness of
the Existing Reports. Purchaser hereby releases Seller and the Affiliates of
Seller from any liability whatsoever with respect to the Existing Reports,
including, without limitation, the matters set forth in the Existing Reports,
and the accuracy and/or completeness of the Existing Reports. Furthermore,
Purchaser acknowledges that it will be purchasing the Property with all faults
disclosed in the Existing Reports.
7.5 Notwithstanding anything contained herein to the contrary, the
acknowledgements, agreements, waivers and releases of Purchaser set forth in
this Paragraph 7 shall survive Closing and recording of the Deed and the
termination of this Agreement as applicable.
8. CLOSING. The closing of this transaction ("Closing") shall be on
January 23, 1997 ("Closing Date"), at the Philadelphia office of Purchaser's
attorneys, or at Seller's option, at the office of the Title Insurer in
Philadelphia, Pennsylvania, at which time Seller shall deliver possession of
the Property to Purchaser. This transaction shall be closed in accordance with
the provisions of a deed and money escrow agreement to be entered into among
Purchaser, Seller and the Title Insurer. All joint order Earnest Money escrow
fees (exclusive of investment fees which will be paid by Purchaser) and all
deed and money escrow fees (including, so-called "New York style" closing fees)
shall be shared equally by Purchaser and Seller.
9. CLOSING DOCUMENTS.
9.1 On the Closing Date, Seller and Purchaser shall execute and deliver
to one another a joint closing statement. 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, counterparts of any transfer tax
declarations and such other documents as may be reasonably required by the
Title Insurer and not inconsistent with the terms of this Agreement 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, subject to Permitted Exceptions and those Unpermitted
Exceptions waived by Purchaser in writing or not objected to by Purchaser in
accordance with Paragraph 5.1 hereof;
9.2.2 a special warranty bill of sale conveying the Personal Property
(in the form of Exhibit H attached hereto);
9.2.3 assignment and assumption (with respect to periods from and
after the Closing) of intangible property (in the form attached hereto as
Exhibit I);
9.2.4 an assignment and assumption (with respect to periods from and
after the Closing) of Leases and security deposits (in the form attached hereto
as Exhibit J);
<PAGE>
9.2.5 non-foreign affidavit (in the form of Exhibit K attached
hereto);
9.2.6 originals, and/or copies (if originals are not available) of,
the Leases in Seller's possession (unless Seller elects to leave such documents
in the on-site management office);
9.2.7 all documents and instruments reasonably required by the Title
Insurer to issue the Title Policy;
9.2.8 possession of the Property to Purchaser, subject to the Leases
and the Permitted Exceptions;
9.2.9 evidence of the termination of the management agreement between
Seller and Insignia Commercial Group, Inc., along with a lien waiver executed
by the property manager, if applicable;
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 refundable security deposits (in the form of
Exhibit L);
9.2.11 an updated rent roll certified by Seller to be true and
correct, subject to the provisions of Paragraph 17.1 and Paragraph 18 hereof;
9.2.12 a Broker's Lien Waiver signed by Insignia Mortgage and
Investment Company ("Insignia"), if required by the Title Insurer;
9.2.13 an Owner's Title Affidavit or ALTA extended coverage statement
in form reasonably acceptable to Seller and Title Insurer;
9.2.14 such formative and authorization documents of Seller as may be
reasonably required by Title Insurer;
9.2.15 copies of all books and records as may be necessary to
calculate tenant escalations and reconciliations (unless Seller elects to leave
such documents in the on-site management office);
9.2.16 Tenant Certificates as required by Paragraph 10 hereof to the
extent the same have been obtained by Seller;
9.2.17 evidence of Seller's authority to enter into the transactions
contemplated hereby; and
9.2.18 a Certificate of Seller affirming representations and
warranties as of the Closing Date, with appropriate modifications to cover any
matters related to any new Leases entered into after the date hereof in
accordance with Paragraph 12 hereof.
10. ESTOPPEL CERTIFICATES. Seller agrees to use reasonable efforts to obtain
tenant estoppel certificates in the form of Exhibit M ("Tenant Certificates")
from each tenant occupying space within the Property. Purchaser's obligation
to close the transaction contemplated herein is contingent upon the delivery to
<PAGE>
Purchaser without any Qualification (hereafter defined) of (i) a Tenant
Certificate from each Major Tenant (hereinafter defined); and (ii) Tenant
Certificates from tenants occupying at least 50% of the remaining occupied
square footage of the Property (exclusive of the square footage occupied by
Major Tenants). As used herein, "Qualification" means any information which
has a material, adverse effect on (i) the use or value of the Property or (ii)
the obligations of the tenant or the rights of the landlord under any Lease, to
the extent such information is not disclosed on the Rent Roll attached hereto
as Exhibit C or in the copies of the Leases delivered to Purchaser.
Notwithstanding the foregoing, a tenant's deletion or modification of
paragraphs 18 and/or 19 of any Tenant Certificate shall not be deemed a
Qualification.
As used herein, "Major Tenant" means each of Walnut Associates, Levlane
Advertising, Inc., Strategic Marketing Corp., Corestates Bank, N.A., successor
in interest to Germantown Savings Bank, Citybel Corporation and Meredian
Properties.
11. SERVICE CONTRACTS. Prior to the expiration of the Inspection Period,
Purchaser shall notify Seller in writing of all Service Contracts which
Purchaser wishes to assume at Closing ("Assumed Contracts"). All other Service
Contracts shall be terminated by Seller. Seller shall provide notice of such
termination to each contractor under the Service Contracts which are not
Assumed Contracts on the earlier of (i) the waiver by Purchaser of all
conditions to the Purchaser's obligations to close or (ii) the Closing Date.
Seller has advised Purchaser that the Service Contracts are terminable on 30
days prior written notice. With respect to any Service Contracts which are not
Assumed Contracts, Purchaser and Seller shall prorate the payments due under
such Service Contracts as of the Closing Date, with the Purchaser being
responsible for its pro rata share of any payments attributable to the period
after the Closing Date and prior to the termination date of such Service
Contracts. On the Closing Date, Seller shall assign the Assumed Contracts to
Purchaser, and Purchaser shall assume in writing responsibility of the
obligations arising from and after the Closing Date under the Assumed
Contracts. Seller shall use reasonable efforts to obtain any required consent
with respect to the assignment of the Assumed Contracts; provided, however,
that Seller's inability to obtain such approval shall not be a default
hereunder or a condition precedent to Purchaser's obligations to close
hereunder.
12. LEASING OF PROPERTY. Prior to the expiration of the Inspection Period,
Seller shall deliver to Purchaser a copy of any new leases or modifications or
extensions executed by Seller from and including the date hereof through the
end of the Inspection Period, together with information as to any tenant
improvement obligations and leasing commissions, and such other information as
Purchaser may reasonably require. Such new leases or lease modifications and
extensions shall be included in the definition of Leases and Purchaser shall be
responsible to pay for all leasing commissions, tenant improvement costs or
other costs and expenses (including reasonable attorneys' fees) incurred by
Seller with respect to such leases. Notwithstanding anything herein to the
contrary, Purchaser agrees that Purchaser's obligation to pay leasing costs and
expenses as described in the immediately preceeding sentence, shall also apply
<PAGE>
to the leases executed prior to the date hereof to the extent listed on Exhibit
Q hereof. After the expiration of the Inspection Period, Seller shall not
enter into any lease for any portion of the Property or any modification,
extension or amendment to any Lease without first obtaining the prior consent
of Purchaser, which consent shall not be unreasonably withheld. If Purchaser
has not responded within five (5) business days of receipt of a request by
Seller, Purchaser's consent shall be deemed given. If Purchaser closes the
transaction contemplated by this Agreement, Purchaser shall be responsible to
pay for all leasing commission, tenant improvement costs or other costs and
expenses (including reasonable attorneys' fees) incurred by Seller with respect
to any such lease approved by Purchaser. Seller agrees to pay any outstanding
brokerage commissions now or hereafter due or payable with respect to the
existing term of any Lease.
13. DEFAULT BY PURCHASER. ALL EARNEST MONEY DEPOSITED INTO THE ESCROW IS TO
SECURE THE TIMELY PERFORMANCE BY PURCHASER OF ITS OBLIGATIONS AND UNDERTAKINGS
UNDER THIS AGREEMENT. IN THE EVENT OF A DEFAULT OF PURCHASER OF ITS OBLIGATION
TO CLOSE THE TRANSACTION CONTEMPLATED BY THIS AGREEMENT, SELLER SHALL RETAIN
ALL OF THE EARNEST MONEY AND THE INTEREST THEREON AS SELLER'S SOLE RIGHT WITH
RESPECT TO DAMAGES OR ANY OTHER REMEDY, EXCEPT FOR SELLER'S REMEDIES FOR A
BREACH OF THOSE COVENANTS AND OBLIGATIONS OF PURCHASER WHICH EXPRESSLY SURVIVE
TERMINATION OF THIS AGREEMENT. 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 FOR A
BREACH OF PURCHASER'S OBLIGATION TO CLOSE.
14. 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, EXCEPT THAT PURCHASER SHALL ALSO
HAVE THE RIGHT TO REIMBURSEMENT FROM SELLER FOR ITS ACTUAL, DOCUMENTED THIRD
PARTY EXPENSES (NOT TO EXCEED $50,000 IN ANY EVENT) INCURRED IN THE NEGOTIATION
OF THIS AGREEMENT AND THE PERFORMANCE OF ITS DUE DILIGENCE HEREUNDER. UPON THE
RETURN OF THE EARNEST MONEY AND THE REIMBURSEMENT BY SELLER FOR OUT OF POCKET
COSTS AS PROVIDED ABOVE, THIS AGREEMENT SHALL TERMINATE WITHOUT FURTHER ACTION
OF THE PARTIES AND THE PARTIES SHALL HAVE NO FURTHER LIABILITY TO EACH OTHER AT
LAW OR IN EQUITY, EXCEPT FOR THOSE COVENANTS AND OBLIGATIONS WHICH EXPRESSLY
SURVIVE TERMINATION OF THIS AGREEMENT. NOTWITHSTANDING ANYTHING CONTAINED
HEREIN TO THE CONTRARY, IF SELLER'S DEFAULT RESULTS FROM (i) ITS (AND NOT AN
UNRELATED THIRD PARTY'S) AFFIRMATIVE ACTION DONE WITH THE INTENTION OF
PREVENTING THE SALE WHICH RESULTS IN THE RECORDING OF AN ENCUMBRANCE AGAINST
THE PROPERTY AND WHICH GIVES RISE TO PURCHASER'S RIGHT TO TERMINATE THIS
AGREEMENT PURSUANT TO PARAGRAPH 5 HEREOF; (ii) ITS FAILURE TO EXPEND UP TO
$25,000 IF (a) SELLER IS ABLE TO BOND OVER, CURE OR REMOVE A MINOR UNPERMITTED
EXCEPTION FOR A COST NOT TO EXCEED $25,000 OR (b) THE TITLE INSURER IS WILLING
TO INSURE OVER A MINOR UNPERMITTED EXCEPTION FOR A COST NOT TO EXCEED $25,000
IN ACCORDANCE WITH THE TERMS HEREOF OR (iii) ITS REFUSAL TO DELIVER THE DEED,
THEN PURCHASER WILL BE ENTITLED TO SUE FOR SPECIFIC PERFORMANCE. IN NO EVENT
SHALL (i) SELLER BE LIABLE FOR ANY ACTUAL, PUNITIVE, SPECULATIVE OR
CONSEQUENTIAL DAMAGES RESULTING FROM ANY DEFAULT BY SELLER, OR (ii) SELLER'S
LIABILITY UNDER ANY REPRESENTATION, WARRANTY, COVENANT, AGREEMENT, PRORATION,
<PAGE>
REPRORATION OBLIGATION OR INDEMNITY MADE HEREUNDER OR UNDER ANY CLOSING
DOCUMENTS EXCEED $500,000 IN THE AGGREGATE ("SELLER'S MAXIMUM LIABILITY");
PROVIDED, HOWEVER, THAT THE LIMITATIONS ON LIABILITY PROVIDED HEREIN SHALL NOT
APPLY TO ANY DAMAGES INCURRED BY PURCHASER AS A RESULT OF THE ACTUAL FRAUDULENT
CONDUCT OF SELLER.
15. PRORATIONS.
15.1 Water and other utility charges; fuels; prepaid operating expenses;
real and personal property taxes prorated on a "net" basis (i.e. adjusted for
all tenants' liabilities, if any, for such items); tenant reimbursement
obligations for operating expenses paid by Seller for the period prior to the
Closing Date; unpaid operating expenses for the period prior to the Closing
Date prorated on a "net" basis, as set forth above; and all other items of
expense and income shall be adjusted ratably as of 12:01 a.m. on the Closing
Date ("Proration Date"). Seller shall be entitled to a credit for all
transferable utility deposits transferred hereunder, if any, and all other
utility deposits, if any, may be withdrawn by and refunded to Seller and
Purchaser shall make its own replacement deposits for utilities as may be
required by the respective utilities involved. Assessments, excluding regular
ad valorem real estate taxes, payable in installments which are due prior to
the Closing Date shall be paid by Seller. Assessments, excluding regular ad
valorem real estate taxes, payable in installments which are due subsequent to
the Closing Date shall be paid by Purchaser. 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 ongoing real estate
tax contest has not been finalized as of the Closing Date, Purchaser and Seller
agree that the tax bill existing prior to the contest, shall be the most recent
data for the tax year being contested and (i) Purchaser agrees to re-prorate
such amount as it relates to the real estate tax proration for the current tax
year to the extent such tax contest is successful. All other prorations will
be final except as provided in Paragraphs 15.2, 15.3 and 15.4.
15.2 All base rent, percentage rent and other common area maintenance, tax
and insurance charges actually paid by tenants under the Leases and all other
items of income actually received from the operation of the Property (all such
charges other than base rent, "Additional Rent") shall be prorated as of the
Proration Date. To the extent the Leases provide for the adjustment of
previously paid estimates of Additional Rent on a date after the Proration
Date, Seller shall be entitled to receive, or shall be responsible to pay, as
the case may be, its pro rata share of any such adjusted amounts which are
applicable to periods ending prior to the Proration Date. If the Additional
Rent due from tenants for 1996 (exclusive of Additional Rent due from
Corestates Bank) is less than $20,000, Seller shall receive a credit from
Purchaser at Closing for such amount due, and such credit shall be final,
irrespective of the amounts actually collected by Purchaser from tenants). If
the Additional Rent due from tenants for 1996 is greater than $20,000
(exclusive of Additional Rent due from Corestates Bank), Purchaser's credit to
Seller for amounts in excess of $20,000 shall be escrowed at Closing, and
disbursed to Seller based on the amount actually collected from tenants.
Notwithstanding the foregoing, Purchaser shall not be obligated to credit
Seller at Closing for any Additional Rent due from Corestates Bank in excess of
<PAGE>
$20,000 and any amount due from Corestates Bank in excess of $20,000 shall be
escrowed and disbursed in the same manner provided in the foregoing sentence
with respect to Additional Rent due from other tenants. Purchaser shall
deliver to each tenant of the Property (with a copy of each to Seller) a final
reconciliation of Additional Rent due for calendar year 1996 on or before
March 15, 1996. Purchaser shall use reasonable efforts (without any obligation
to terminate leases or initiate lawsuits) to collect such Additional Rent from
such tenants. On or before June 1, 1996, Purchaser shall provide Seller with a
reconciliation of the amount of all Additional Rent collected from tenants for
calendar year 1996, and the amount so collected shall be promptly disbursed
from the aforementioned escrow to Seller (or paid by Purchaser to Seller from
amounts collected, if the escrowed amount is less than the full amount of
Additional Rent collected for calendar year 1996). Notwithstanding anything to
the contrary herein, the provisions of this Paragraph shall survive the
Closing.
15.3 All basic rent paid following the Closing Date by any tenant of the
Property who is indebted under a Lease for basic rent for any period prior to
the Proration Date in an amount greater than the amount of all current basic
rent owed by said tenant to Purchaser shall be deemed a "Post-Closing Receipt"
until such time as all such indebtedness is paid in full. Within ten (10) days
following each receipt by Purchaser of a Post-Closing Receipt, Purchaser shall
pay such Post-Closing Receipt to Seller. Purchaser shall use its reasonable,
good faith efforts, at no additional cost or expense to Purchaser, to collect
all amounts which, upon collection, would constitute Post-Closing Receipts
hereunder. Within 180 days after the Closing Date, Purchaser shall deliver to
Seller a reconciliation statement of Post-Closing Receipts through the first
150 days after the Closing Date. Upon the delivery of the Post-Closing
Receipts reconciliation, Purchaser shall deliver to Seller any Post-Closing
Receipts owing to Seller and not previously delivered to Seller in accordance
with the terms hereof. Purchaser shall provide Seller with any information
reasonably necessary to verify the accuracy of the Post-Closing Receipts
reconciliation statement and upon the verification of additional funds owing to
Seller, Purchaser shall pay to Seller said additional Post-Closing Receipts.
This Paragraph 15.3 of this Agreement shall survive the Closing and the
delivery and recording of the Deed.
15.4 All refunds in connection with any ongoing real estate tax protests
for the Property initiated by Seller prior to the Closing shall remain the
property of Seller and are not being assigned by Seller to Purchaser pursuant
to this Agreement. In the event any such refunds are paid to Purchaser,
Purchaser agrees to promptly remit all such sums to Seller. Purchaser agrees,
at no cost or expense to Purchaser, to execute any documents reasonably
requested by Seller in connection with such tax protests.
16. BROKER. The parties hereto represent and warrant that no broker commission
or finder fee is due and payable in connection with this transaction, by reason
of their respective actions, other than to Insignia (to be paid by Seller).
Seller's commission to Insignia 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
<PAGE>
attorneys' 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 Insignia. Seller shall indemnify, defend and hold Purchaser harmless from
any claim (including, without limitation, reasonable attorneys' fees, court
costs and costs of appeal) for any claim by Insignia for any fee, commission or
compensation on account of this Agreement, its negotiation or the sale hereby
contemplated, other than any claim by Insignia on account of any agreement or
negotiations between Insignia and Purchaser. The indemnifying party shall
undertake its obligations set forth in this Paragraph 16 using attorneys
selected by the indemnifying party and reasonably acceptable to the indemnified
party. The provisions of this Paragraph 16 will survive the Closing and
delivery of the Deed.
17. REPRESENTATIONS, WARRANTIES AND COVENANTS.
17.1 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 James Mendelson or Thomas Molina ("Seller's Representatives"), and any
representation or warranty of Seller is based upon those matters of which
Seller's Representatives have actual knowledge. Prior to the execution of this
Agreement by Seller, Seller's Representatives shall provide a copy of this
Agreement to Terri Breslin, Seller's on-site property manager, and Seller shall
review with Ms. Breslin the accuracy of each of the representations and
warranties made herein by Seller. 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
Representatives.
17.2 Subject to the limitations set forth in Paragraph 17.1, Seller hereby
makes the following representations and warranties, which representations and
warranties are made to Seller's knowledge and which shall survive Closing until
December 1, 1997:
(a) Except as listed on Exhibit N, Seller has no knowledge of any
pending or threatened litigation, claim, condemnation, cause of action or
administrative proceeding concerning the Property and Seller has received no
governmental notice, not heretofore corrected, alleging that the Property or
its current uses are in violation of any zoning, building, health, traffic,
environmental, flood control or other applicable rules, regulations, codes,
ordinances, or statutes of any local, state and federal authorities and any
other governmental authority asserting jurisdiction over the Property.
(b) Seller has the power to execute this Agreement and consummate
the transactions contemplated herein.
(c) The rent rolls attached hereto as Exhibit C and updated as of
the Closing Date are accurate in all material respects as of the date set forth
therein.
(d) Seller has not given or suffered any assignment, pledge or
encumbrance with respect to any of the Leases or its interests thereunder.
<PAGE>
(e) The list of Service Contracts attached hereto as Exhibit D is
accurate as of the date hereof and to Seller's knowledge, except as disclosed
to Purchaser in writing, there are no agreements or contracts affecting the
Property (including, without limitation, any management, leasing, services or
maintenance agreements), which are not terminable by the Seller without further
liability, upon not more than 30 days' prior written notice.
(f) Except as listed on Exhibit N, Seller has received no written
notice or claim from any governmental authority having jurisdiction over the
Property relating to an uncured breach or violation of any Environmental Laws
or any other laws in connection with the Property.
(g) Except as disclosed on Exhibit N, Seller has received no notice
of any uncured landlord default from any tenant in connection with any Lease.
(h) Seller is not a "foreign person" within the meaning of Section
1445(f)(3) of the Internal Revenue Code of 1986, as amended, and Seller will
furnish to Purchaser, at Closing, an affidavit in form satisfactory to
Purchaser confirming the same.
(i) The execution and delivery of this Agreement, and consummation
of the transaction described in this Agreement, does not and will not
constitute a default under any contract, lease, or agreement to which Seller is
a party.
(j) Seller has received no notice of violation or notice of
revocation of any licenses, permits, variances, approvals, authorizations,
easements, and rights of way required for the use and operation of the Property
or for vehicular and pedestrian ingress and egress to the Property.
(k) Seller has entered into no outstanding written or oral contracts
with regard to construction of improvements on the Property, which will not be
fully paid for as of Closing.
(l) There are no options or rights of first refusal to acquire any
interest in the Property not set forth in the Leases delivered to Purchaser or
in documents of record disclosed in the title commitment.
(m) Seller has no knowledge that any tenant is currently the subject
of any bankruptcy or insolvency proceeding under state or federal law, or that
any tenant has notified Seller of its intent to terminate its lease prior to
expiration of the term of such lease.
(n) With the exception of any commission costs which are the
responsibility of Purchaser in accordance with Paragraph 12 hereof, all leasing
commissions due and payable as of the date hereof under existing Leases
(exclusive of commissions related to any unexercised options to extend, expand
or renew or related to other events which have not occurred prior to the date
hereof) have been paid or will have been paid on or before Closing. Attached
hereto as Exhibit P is a schedule listing all leasing and brokerage agreements
relating to the Property entered into by Seller (copies of which shall be
delivered to Purchaser prior to the expiration of the Inspection Period).
<PAGE>
17.3 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.
17.4 Seller covenants to (a) operate, maintain and manage the Property in
the same manner that it has managed, maintained and operated the Property
during the period of Seller's ownership, subject to reasonable wear and tear
and casualty (b) to reserve from any distribution of net proceeds of sale to
its partners an amount equal to Seller's Maximum Liability until the expiration
of the Survival Period (hereafter defined). Seller shall remain liable for any
liability related to the existing claim filed by John Sbarbaro in the
proceedings pending in the Court of Common Pleas as disclosed on Exhibit N
attached hereto.
17.5 The representations, warranties and covenants of Seller set forth
herein and in any Closing Document shall survive Closing until December 1, 1997
("Survival Period"). All rights of Purchaser hereunder with respect to any
such surviving representation, warranty or covenant shall be deemed waived if
Purchaser does not, by notice to Seller, advise Seller of any alleged breach
of representation, warranty or covenant prior to the expiration of the Survival
Period. Notwithstanding anything herein to the contrary, Seller's liability
under any representation, warranty or covenant made hereunder or in any Closing
Document shall in no event exceed Seller's Maximum Liability.
18. LIMITATION OF LIABILITY. None of Seller's beneficiaries, shareholders,
partners, officers, agents, employees, heirs, successors or assigns shall have
any personal liability of any kind or nature for or by reason of any matter or
thing whatsoever under, in connection with, arising out of or in any way
related to this Agreement and the transactions contemplated herein, and
Purchaser hereby waives for itself and anyone who may claim by, through or
under Purchaser any and all rights to sue or recover on account of any such
alleged personal liability.
19. 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:
TO SELLER: WRGSB Associates
c/o The Balcor Company
Bannockburn Lake Office Plaza
2355 Waukegan Road
Suite A200
Bannockburn, Illinois 60015
Attention: Ilona Adams
with copies to: The Balcor Company
Bannockburn Lake Office Plaza
2355 Waukegan Road
Suite A200
Bannockburn, Illinois 60015
Attention: James Mendelson
(847) 267-1600
(847) 317-4462 (FAX)<PAGE>
TO PURCHASER: Berwind Property Group, Inc.
1500 Market Street
3000 Centre Square West
Philadelphia, Pennsylvania 19102
Attention: Roy C. Perry
with copies to: Berwind Property Group, Inc.
1500 Market Street
3000 Centre Square West
Philadelphia, Pennsylvania 19102
Attention: Joan H. Pederson, Esq.
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 via facsimile transmission and received by
5:00 p.m. Chicago time, or on the fourth (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 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 Escrow Agent. All time periods for responses by either party set forth
in this Agreement shall commence upon the receipt of notice as set forth
hereinabove.
20. EXECUTION OF AGREEMENT AND ESCROW AGREEMENT. Purchaser will execute two
(2) copies of this Agreement and three (3) copies of the Escrow Agreement and
forward them to Seller for execution, accompanied by the Earnest Money payable
to the escrow agent set forth in the Escrow Agreement. Seller will forward one
(1) copy of the executed Agreement to Purchaser and will forward to the escrow
agent the Earnest Money, along with 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 Purchaser and Seller.
21. MISCELLANEOUS
(a) Time is of the essence of each provision of this Agreement.
(b) This Agreement and all provisions hereof shall extend to and be
obligatory upon and inure to the benefit of the respective heirs, legatees,
legal representatives, successors and assigns of the parties hereto.
(c) The section and paragraph headings of this Agreement are for
convenience only and in no way define, limit or enlarge the scope or meaning of
the language hereof. The terms "hereby," "herein," "hereof," "hereto,"
"hereunder" and any similar terms used in this Agreement refer to this
Agreement. The term "including" shall not be construed in a limiting nature,
but shall be construed to mean "including, without limitation." Words
importing persons shall include firms, associations, partnerships, trusts,
corporations and other legal entities, including public bodies, as well as
natural persons. Words importing the singular shall include the plural and
vice versa. Words of the masculine gender shall be deemed to include
correlative words of the feminine and neuter genders.
<PAGE>
(d) This Agreement contains the entire agreement between the parties
relating to the transactions contemplated hereby, and all prior or
contemporaneous agreements, understandings, representations and statements,
oral or written, are merged herein. No representations, warranties,
undertakings or promises (whether oral or written, express or implied), can be
made or have been made by Seller or its agents, representatives or brokers to
Purchaser or any other person unless expressly stated herein. No modification
or amendment of this Agreement or any waiver of any provision hereof shall be
effective unless the same is in writing signed by the party against whom
enforcement of such modification, amendment or waiver is sought.
(e) This Agreement shall be governed by and construed in accordance
with the laws of the State of Pennsylvania. If any of the provisions of this
Agreement or the application thereof to any persons or circumstances shall, to
any extent, be deemed invalid or unenforceable, the remainder of this Agreement
and the application of such provisions to persons or circumstances other than
those as to whom or which it is held invalid or unenforceable shall not be
affected thereby, and every provision of this Agreement shall be valid and
enforceable to the fullest extent permitted by law.
(f) This Agreement and any document or instrument executed pursuant
hereto may be executed in any number of counterparts, each of which shall be
deemed an original, but all of which together shall constitute one and the same
instrument.
(g) The submission by Seller of this Agreement to Purchaser for
examination does not constitute an offer by Seller to sell, or a reservation of
or option to purchase the Property. This Agreement shall not become a contract
until executed and delivered by Purchaser and Seller in the manner set forth
herein.
(h) If Purchaser consists of more than one person or entity, then
each such person or entity executing this Agreement as Purchaser shall be
jointly and severally liable for the obligations of Purchaser hereunder.
(i) Purchaser shall not record this Agreement or any memorandum
hereof, and any such recording shall be a default hereunder.
(j) Prior to Closing, Purchaser and Seller shall jointly prepare and
issue all releases of information relating to the sale of the Property, and any
inquiries regarding the transaction contemplated hereby shall be responded to
only after consultation with the other party hereto.
(k) If either party institutes a legal action against the other
relating to this Agreement or any default hereunder, the unsuccessful party to
such action will reimburse the successful party for the reasonable expenses of
prosecuting or defending such action, including without limitation, attorneys
fees and disbursements and court costs.
(l) This Agreement shall not be construed more strictly against one
party than against the other merely by virtue of the fact that the Agreement
may have been prepared primarily by counsel for one of the parties, it being
recognized that both Purchaser and Seller have contributed substantially and
materially to the preparation of this Agreement.
<PAGE>
(m) Purchaser shall not have the right to assign its interest in
this Agreement without the prior written consent of 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 13 hereof. Notwithstanding the foregoing, Purchaser
may make one (1) assignment of its interest in this Agreement without the
consent of Seller to any entity affiliated with or controlled by Purchaser
("Assignee"), provided that Purchaser remains liable for and the Assignee
assumes the obligations of Purchaser hereunder. If the Assignee petitions or
applies for relief under any bankruptcy laws or is adjudicated as a bankrupt or
insolvent, or if Assignee files any petition, application for relief or
answer-seeking or acquiescing in any reorganization, arrangement, composition,
readjustment, liquidation, dissolution or similar relief for itself under any
present or future federal, state or other statute, law, code or regulation
relating to bankruptcy, insolvency, or other relief for debtors (collectively,
a "Bankruptcy Filing") on or before the Closing Date, said Bankruptcy Filing
shall be a default under this Agreement and Purchaser shall indemnify Seller
for all costs, attorney's fees and expenses of Seller resulting from Seller's
efforts to obtain the Earnest Money as liquidated damages and to clear title to
the Property with respect to any encumbrance resulting from the Bankruptcy
Filing.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first set forth above.
PURCHASER:
BERWIND PROPERTY GROUP, INC.,
a Pennsylvania corporation
By: /s/ Roy C. Perry
---------------------------------
Name: Roy C. Perry
---------------------------------
Its: Vice President
---------------------------------
SELLER:
WRGSB ASSOCIATES, an Illinois limited
partnership
By: Balcor Equity Partners-I, an Illinois
general partnership, its general
partner
By: The Balcor Company, a Delaware
corporation, a partner
By: /s/ James E. Mendelson
----------------------------------
Name: James E. Mendelson
----------------------------------
Its: Authorized Representative
----------------------------------
<PAGE>
Insignia Mortgage & Investment Company ("Broker") executes this Agreement in
its capacity as a real estate broker and acknowledges that the fee or
commission ("Fee") due to it as a result of the transaction described in this
Agreement is the amount as set forth in the listing agreement between Broker
and Seller. Broker also acknowledges that payment of the aforesaid Fee is
conditioned upon the Closing and the receipt of the Purchase Price by 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 Broker from Seller
or Purchaser.
INSIGNIA MORTGAGE & INVESTMENT COMPANY
By: /s/ Al Lieberman
----------------------------------
<PAGE>
LIST OF EXHIBITS
A. Legal Description
B. Personal Property
C. Leases/Rent Roll
D. Service and Maintenance Contracts
E. Escrow Agreement
F. Copy of Title Commitment
G. Limited Warranty Deed
H. Special Warranty Bill of Sale
I. Assignment and Assumption of Intangible Property
J. Assignment and Assumption of Leases and Security Deposits
K. FIRPTA
L. Tenant Notice Letter
M. Tenant Estoppel Certificate
N. Disclosures
O. Existing Reports
P. Leasing and Brokerage Agreements
Q. Paragraph 12 Leases
<PAGE>
AGREEMENT OF SALE
THIS AGREEMENT OF SALE (this "Agreement"), is entered into as of the 2nd
day of December, 1996 by and between CMD Realty Investment Fund II, L.P.
("Purchaser"), and Roclab-C Investors, an Illinois limited partnership
("Seller").
W I T N E S S E T H:
1. PURCHASE AND SALE. Purchaser agrees to purchase and Seller agrees to sell
at the price of Eight Million Three Hundred Thousand Dollars ($8,300,000)
("Purchase Price"), and on the terms and conditions hereinafter set forth, the
property commonly known as Park Center, Maitland, Florida, consisting of the
following (the "Property"):
1.1 The real property ("Land") and all buildings and other improvements
("Improvements") situated on the Land, as more particularly described on
Exhibit A attached hereto and made a part hereof (the Land and the Improvements
are sometimes referred to herein together as the "Real Property"), together
with all easements and appurtenances thereunto belonging and all of Seller's
right, title and interest in and to all streets, alleys and public ways
adjacent thereto, if any, and together with all of Seller's right, title and
interest in and to all strips and gores located on or adjacent to the Property
or located between any parcels constituting the Land, if any;
1.2 The personal property set forth on Exhibit B attached hereto
("Personal Property");
1.3 The tenant leases described in the rent roll set forth on Exhibit C
attached hereto and made a part hereof together with such other tenant leases
of the Property as may be made prior to Closing (as hereinafter defined) in
accordance with the terms of this Agreement ("Leases");
1.4 If and to the extent assignable and to the extent of Seller's
interest therein, if any: (a) all guarantees, warranties and indemnifications,
if any, received from suppliers, contractors, materialmen or subcontractors
arising out of, or in connection with, the installation, construction or
maintenance of the Property including, without limitation, the right to sue any
obligor for any breach of any covenant, agreement, representation, warranty or
guarantee contained therein; (b) all licenses, permits, certificates of
occupancy and franchises issued by any federal, state, county or municipal
authority relating to the use, maintenance or operation of the Property running
to or in favor of Seller or pertaining to the Property; (c) all trade styles,
and trade names, including, without limitation, the name "Park Center", and all
contract rights, brochures, manuals, lists of prospective tenants, advertising
material, books and records, utility contracts and telephone numbers; (d) the
plans and specifications for the Improvements and all unexpired claims and
sureties, if any, received in connection with the construction, improvement or
equipment of the Improvements; and (e) those of the service and maintenance
contracts set forth in Exhibit D ("Service Contracts") which are Assumed
Contracts (as hereinafter defined).
1.5 Notwithstanding anything contained in this Agreement to the contrary,
Seller is not conveying or assigning to Purchaser the items described in
Paragraph 15.3 hereof.
<PAGE>
2. PURCHASE PRICE. The Purchase Price shall be paid by Purchaser as follows:
2.1 Within two business days after the execution of this Agreement and
the Escrow Agreement by all parties hereto and thereto, the sum of Two Hundred
Thousand Dollars ($200,000) ("Earnest Money"), by check payable to the escrow
agent, to be held in escrow by and in accordance with the provisions of the
Escrow Agreement ("Escrow Agreement") attached hereto as Exhibit E; and
2.2 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, on or before 2:00 p.m. Chicago time. Any
provisions herein providing for the delivery of the Earnest Money to either
party hereof are intended to mean the Earnest Money plus any interest earned
thereon and less all escrow and investment fees; provided, however, that if the
transaction contemplated by this Agreement closes, Purchaser and Seller shall
each pay one-half of the joint order Earnest Money escrow fee, and Purchaser
shall pay any investment fees incurred in investing the Earnest Money.
3. TITLE COMMITMENT AND SURVEY.
3.1 Attached hereto as Exhibit F is a copy of a title commitment for an
owner's standard title insurance policy issued by Charter Title Company, as
agent for Lawyers Title Insurance Corporation, (hereinafter referred to as
"Title Insurer"), dated November 7, 1996 for the Property ("Title
Commitment"). For purposes of this Agreement, "Permitted Exceptions" shall
mean: (a) general ad valorem real estate taxes for the year 1997 and
subsequent years not yet due and payable; (b) Maitland Center Property Owner's
Association, Inc. assessments and/or maintenance fees not yet due and payable;
(c) matters caused by the action or inaction of Purchaser or its agents (and
Purchaser hereby agrees to amend the Escrow Agreement, if necessary, to reflect
as a Permitted Exception any such matter which may be raised by the Title
Insurer); (d) the title exceptions set forth in Schedule B of the Title
Commitment as Numbers 4-12; (e) the rights of tenants under Leases; and
(f) liens or encumbrances of a definite or ascertainable amount which may be
removed or insured over by the payment of money or other security at the
Closing Date, and which Seller removes or causes to be insured over at the
Closing Date in accordance with Paragraph 5 hereof. All other exceptions to
title shall be referred to as "Unpermitted Exceptions". On the Closing Date,
Title Insurer shall deliver to Purchaser a standard ALTA Form B (1992 with
Florida modifications) title policy insuring Purchaser's fee simple title to
the Property, in the full amount of the Purchase Price, dated no earlier than
the date and time of recording of the Deed, with full extended coverage, a
survey endorsement and a PUD Endorsement, and otherwise in conformance with the
proforma title policy attached as Exhibit B to the Escrow Agreement attached
hereto as Exhibit E ("Title Policy"). The Title Policy 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 and requirements therein stated.
Seller shall pay the costs of the Title Commitment and Title Policy (exclusive
of costs for extended coverage and endorsements) and Purchaser shall pay for
the cost of the survey endorsement, any other endorsements to, and extended
coverage on, the Title Policy as requested by Purchaser or Purchaser's lender.
<PAGE>
3.2 Purchaser has received a survey of the Property dated November 11,
1996 prepared by Post, Buckley, Schuk & Jernigan, Inc. under Job Number
07-899.22 ("Survey"). Purchaser hereby acknowledges that all matters disclosed
by the Survey are acceptable to Purchaser and are Permitted Exceptions for
purposes of Paragraph 3.1 above, except to the extent such matters which are
not currently raised on the Title Commitment are hereafter raised as exceptions
on the Title Commitment or Title Policy. Purchaser shall pay the cost (not to
exceed $5,500) of the Survey. The Survey shall be certified to CMD Realty
Investment Fund II, L.P. and Lawyers Title Insurance Corporation. The Survey
shall be an "urban survey" of the Land and Improvements prepared in accordance
with the most recent "Minimum Standard Detail Requirements for Land Title
Surveys" jointly established by ALTA and ACSM and shall include items 1, 2, 3,
4, 7, 8, 9, 10 and 11 from Table A thereof. The flood hazard certification on
the Survey shall reference the most current Flood Insurance Rate Map available.
3.3 The obligations of Purchaser and Seller to pay various costs set
forth in Paragraphs 3.1 and 3.2 shall survive the termination of this
Agreement.
4. PAYMENT OF CLOSING COSTS.
4.1 In addition to the costs set forth in Paragraphs 3.1 and 3.2, Seller
shall pay the costs of the documentary or transfer stamps to be paid with
reference to the Deed (as hereinafter defined) and all other stamps,
intangible, transfer, 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.
5. CONDITION OF TITLE.
5.1 If, prior to Closing (as hereinafter defined), a date-down to the
Title Commitment or any other title search discloses any new Unpermitted
Exceptions which, in the aggregate, do not exceed $25,000 (each, a "Minor
Unpermitted Exception"), Seller shall, at Seller's expense, bond over, cure
and/or have such Minor Unpermitted Exceptions removed from the Title Commitment
or have the Title Insurer commit to insure against loss or damage that may be
occasioned by such Minor Unpermitted Exceptions. Notwithstanding the
foregoing, if such date down to the Title Commitment or any other title search
discloses any new Unpermitted Exceptions which, in the aggregate, equal or
exceed $25,000, Seller shall have the right, but not the obligation, to bond
over, cure and/or have such exceptions 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. If Seller fails to bond over, cure
or have any Unpermitted Exception removed or have the Title Insurer commit to
insure as specified above and provide reasonably satisfactory evidence of such
action to Purchaser within five (5) business days from the date of the date
down to the Title Commitment or any other title search, Purchaser may terminate
this Agreement upon written notice to Seller within three (3) business days
after the expiration of such five (5) business 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 action of Seller
or if Seller is able to bond over, cure or remove a Minor Unpermitted Exception
for a cost not to exceed $25,000 or the Title Insurer is willing to insure over
a Minor Unpermitted Exception for a cost not to exceed $25,000 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 14
<PAGE>
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, without any reduction in or setoff against the
Purchase Price as a result thereof. If Purchaser terminates this Agreement in
accordance with the terms of this Paragraph 5.1, this Agreement shall terminate
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 those covenants and obligations that
specifically survive termination of this Agreement.
5.2 Seller agrees to convey fee simple title to the Property to Purchaser
by special warranty deed ("Deed") (in the form attached hereto as Exhibit G) in
recordable form subject only to the Permitted Exceptions and any Unpermitted
Exceptions not objected to by Purchaser in accordance with Paragraph 5.1 above.
5.3 Notwithstanding anything to the contrary set forth herein, (i) in all
events, Seller agrees to discharge at or prior to Closing all liens or
encumbrances created with the consent or agreement of Seller, of a definite or
ascertainable amount and no such lien or encumbrance shall be deemed a
"Permitted Exception," and, in the event Seller fails to discharge said liens
or encumbrances, Purchaser shall have the right to deduct from the Purchase
Price at Closing the amount of any such liens or encumbrances, and (ii) if any
title or survey matters which are unacceptable to Purchaser and which are not
Permitted Exceptions ("Unpermitted Matters") are the result of or constitute a
default hereunder by Seller, or if Seller has created any Unpermitted Matters
between the date of this Agreement and the Closing Date, then whether or not
this Agreement was terminated pursuant to Paragraph 7.1, Purchaser shall have
the rights and remedies provided for in Paragraph 14 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 through the Closing. Seller agrees to maintain its existing "all risk"
replacement cost casualty insurance and rent loss insurance in place until the
Closing Date. Notwithstanding the foregoing, in the event of damage to the
Property by fire or other insured casualty prior to the Closing Date, repair of
which would cost less than or equal to $100,000 (as reasonably determined by
Seller in good faith), and which would not entitle any Major Tenant
(hereinafter defined) to terminate its lease, 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
if such repair or restoration may be completed prior to the Closing Date 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 or payable to Seller
on account of such fire or casualty plus the amount of Seller's insurance
deductible. As used herein, "Major Tenant" means any of EBP Healthplans, Inc.,
Paxson Broadcasting of Orland or Vitas Healthcare Corporation. Seller shall
promptly notify Purchaser in writing of any such fire or other casualty and
Seller's estimate 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 $100,000 (as reasonably determined by
Seller in good faith), or would cost in excess of the sum of any insurance
proceeds to become available and any deductible amount to be paid to Purchaser
by Seller, or would allow any Major Tenant to terminate its lease, then this
Agreement may be terminated at the option of Purchaser, which option shall be
<PAGE>
exercised, if at all, by Purchaser's written notice thereof to Seller within
twenty (20) days after Purchaser receives written notice of such fire or other
casualty from Seller and Seller and Purchaser agree upon the amount of such
damages, and upon the exercise of such option by Purchaser this Agreement shall
terminate without further action by the parties, 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, except
for those covenants and obligations which expressly survive termination of this
Agreement. In the event that Purchaser does not exercise the option to
terminate in accordance with this Paragraph 6.1, 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 shall
pay to Purchaser the amount of Seller's insurance deductible. Notwithstanding
anything contained herein to the contrary, Seller's obligation to transfer all
insurance proceeds paid to Seller as set forth more fully in this Paragraph 6.1
shall survive the Closing and the recording of the Deed.
6.2 If between the date of this Agreement and the Closing Date, any
condemnation or eminent domain proceedings are initiated 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; (iii) adversely impair the use of the Property as it is
currently being operated, or (iv) allow any Major Tenant to terminate its lease
(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,
except for those covenants and obligations hereunder which expressly survive
termination of this Agreement; 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 or to be made in connection with such condemnation or eminent domain
proceedings. Notwithstanding anything contained herein to the contrary,
Seller's obligation to transfer Seller's interest in such award as set forth
more fully in this Paragraph 6.2.2 shall survive the Closing and the recording
of the Deed.
Purchaser shall then notify Seller, within twenty (20) 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 twenty (20) day period, Purchaser shall be deemed to have
elected to proceed with Closing in accordance with Paragraph 6.2.2. If between
the 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.
<PAGE>
7. INSPECTION AND AS-IS CONDITION.
7.1 Purchaser acknowledges that Purchaser has, prior to the date hereof,
been provided with access to the Property in order to inspect the Property and
to conduct and prepare such studies, tests and surveys as Purchaser desired,
including, without limitation, a review of Seller's files relating to the
Property, including, without limitation, the following materials to the extent
the same were in Seller's or Seller's agents' possession: (i) any schedule
setting forth all presently effective insurance policies (of whatever nature)
carried by the Seller and relating to the Property, and certificates of
insurance thereon; (ii) copies of any as-built plans and specifications for the
Property; (iii) copies of assignable warranties and guarantees issued in
connection with the Property; (iv) reports, tests and studies relating to the
Property, including copies of site plans, building plans and specifications,
engineering plans, architectural plans, environmental reports, geological
reports, maintenance reports, certificate of occupancy, certificates of
compliance and other permits and licenses affecting the Property or its
operation; and (v) such other information and materials as has been requested
by Purchaser. In connection with Purchaser's review of the Property, Seller
has delivered to Purchaser copies of the current rent roll for the Property,
the tax and insurance bills and assessments for 1995 and 1996, copies of the
Leases, utility account numbers, a personal property inventory, the Service
Contracts, unaudited annual operating statements for 1992 through 1995 and
monthly unaudited operating statements from January 1996 through the last full
calendar month prior to the date hereof.
Seller has also delivered to Purchaser the following: (i) a list, if any,
of proposed leases, renewals and/or expansions currently being negotiated with
the proposed effective dates and expiration dates, rental rates, expense stops,
rent concessions or abatements, tenant improvements and expected completion
date and commissions; (ii) a schedule as of a date subsequent to the date of
this Agreement, describing all service, and other presently effective
agreements and warranties relating to the operation and/or maintenance of the
Property, together with complete and correct copies thereof; (iii) all existing
licenses and permits, and any letters from any governmental authorities
concerning uncured violations or code issues relating to the Building; and
(iv) a schedule listing all leasing commission and brokerage agreements
relating to the Property entered into by Seller, along with copies of each such
agreement.
Purchaser acknowledges that, to the extent performed, all of the foregoing
tests, investigations and studies conducted under this Paragraph 7.1 by
Purchaser were performed subject to the following:
(i) Except as may be required by law or by Purchaser to obtain
financing in order to close this transaction, all information set forth in the
documents to be reviewed hereunder by Purchaser, its employees, agents,
contractors and consultants shall be held in strict confidence until Closing
and thereafter in the event that the Closing does not occur;
(ii) In the event the Closing does not occur, Purchaser shall
promptly return to Seller any documents obtained from Seller or Seller's
agents;
(iii) Neither Purchaser nor any of its employees, agents,
contractors or consultants shall have caused any lien, claim or charge of any
kind whatsoever to attach to the Property or any part thereof; and
<PAGE>
(iv) such tests, investigations and studies, to the extent
conducted, were conducted at Purchaser's sole cost and expense, and in the
event of any damage to the Property caused by Purchaser, its agents, engineers,
employees, contractors or surveyors (including, without limitation, pavement,
landscaping and surface damage), Purchaser shall pay the cost incurred by
Seller to restore the Property to the condition existing prior to the
performance of such tests, investigations or studies.
Purchaser shall defend, indemnify and hold Seller and any affiliate or parent
of Seller, and all shareholders, employees, officers, directors and partners of
Seller or Seller's affiliate or parent (hereinafter collectively referred to as
"Affiliates of Seller") harmless from any and all liability, cost and expense
(including without limitation, reasonable attorneys' fees, court costs and
costs of appeal) suffered or incurred by Seller or Affiliates of Seller for
physical injury to persons or property caused by Purchaser's investigations,
tests, studies and inspections 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. Purchaser shall
furnish to Seller a certificate of insurance evidencing comprehensive general
public liability insurance insuring the person, firm or entity performing any
further such tests, studies and investigations.
7.2 Except for the express representations, warranties and covenants of
Seller set forth herein or in any closing document, 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 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, ordinary
wear and tear and loss by fire or other casualty or condemnation excepted and
that Seller makes no warranty or representation, express or implied, or arising
by operation of law, including, but not limited to, any warranty of condition,
habitability, merchantability or fitness for a particular purpose, in respect
of the Property. Without limiting the foregoing, Purchaser acknowledges that,
except as may otherwise be specifically set forth elsewhere in this Agreement
or in any closing document, 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: (i) the condition of the Land or any
improvements comprising the Property; (ii) the existence or non-existence of
any pollutant, toxic waste and/or any hazardous materials or substances;
(iii) economic projections or market studies concerning the Property, or the
income to be derived from the Property; (iv) any development rights, taxes,
bonds, covenants, conditions and restrictions affecting the Property; (v) the
nature and extent of any right of way, lease, lien, encumbrance, license,
reservation or other title matter; (vi) water or water rights, topography,
geology, drainage, soil or subsoil of the Property; (vii) the utilities serving
the Property; (viii) the suitability of the Property for any and all activities
and uses which Purchaser may elect to conduct thereon; or (ix) the compliance
of the Property with any zoning, environmental, building or other laws, rules
or regulations affecting the Property. Seller makes no representation or
warranty that the Property complies with the Americans with Disabilities Act or
any fire code or building code. 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
<PAGE>
recovery or otherwise, against Seller or the Affiliates of Seller, relating
directly or indirectly to the existence of asbestos or hazardous materials or
substances on, or environmental conditions of, the Property, whether known or
unknown. As used herein, the term "hazardous materials or 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, 42 U.S.C. Section 9601 et seq.; the Toxic
Substance Control Act, 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, 42 U.S.C. Section 9601. et seq.; the Clean Water Act, 33 U.S.C.
Section 1251; the Safe Drinking Water Act, 42 U.S.C. Section 30Of et seq; the
Clean Air Act, 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, "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. Purchaser acknowledges that having been
given the opportunity to inspect the Property, except to the extent covered by
a representation, warranty or covenant set forth herein or in any closing
document, Purchaser is relying solely on its own investigation of the Property
and not on any information provided or to be provided by Seller. Purchaser
further acknowledges that the information provided and to be provided with
respect to the Property was obtained from a variety of sources, and that Seller
(x) has not made any independent investigation or verification of such
information and (y) makes no representations as to the accuracy or completeness
of such information, except as provided herein or in any closing document.
7.3 Seller has provided to Purchaser certain unaudited historical
financial information regarding the Property relating to certain periods of
time in which Seller owned the Property. Seller and Purchaser hereby
acknowledge that such information has been provided to Purchaser at Purchaser's
request solely as illustrative material. Except for the express
representations, warranties and covenants of Seller set forth herein, 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.
7.4 Seller has provided to Purchaser (i) an ACM Survey dated September 2,
1992 prepared by Law Engineering and (ii) an Operations and Maintenance Program
for Asbestos-Containing Materials dated February 2, 1993 prepared by Law
Engineering under Project No. 548-80354 (collectively, the "Existing Reports").
Seller makes no representation or warranty concerning the accuracy or
<PAGE>
completeness of the Existing Reports. Purchaser hereby releases Seller and the
Affiliates of Seller from any liability whatsoever with respect to the Existing
Reports, including, without limitation, the matters disclosed by the Existing
Reports, and the accuracy and/or completeness of the Existing Reports.
Furthermore, Purchaser acknowledges that it will be purchasing the Property
with all faults disclosed in the Existing Reports.
7.5 Notwithstanding anything contained herein to the contrary, the
acknowledgements, agreements, waivers and releases of Purchaser set forth in
this Paragraph 7 shall survive Closing and recording of the Deed and the
termination of this Agreement as applicable.
8. CLOSING.
8.1 The closing of this transaction ("Closing") shall be on the date
which is December 6, 1996 ("Closing Date"), at the office of Seller's
attorneys, Hopkins & Sutter, Three First National Plaza, Suite 4300, Chicago,
Illinois 60602, or at Seller's option, at the office of the Title Insurer in
Chicago, Illinois, at which time Seller shall deliver possession of the
Property to Purchaser. This transaction shall be closed in accordance with the
provisions of the Escrow Agreement. All deed and money escrow fees (including,
so-called "New York style" closing fees) shall be paid one-half by Purchaser
and one-half by Seller.
8.2 The following shall be conditions precedent to Purchaser's obligation
to close ("Purchaser Conditions"), including, without limitation, Purchaser's
obligations under Paragraphs 2.2 and 9.1:
(a) the Title Insurer shall be irrevocably committed to issue the
Title Policy in the form set forth in Paragraph 3.1;
(b) No material adverse change in any zoning regulations since the
date of this Agreement shall have occurred prior to the Closing Date;
(c) Seller shall be irrevocably committed to perform its obligations
under Paragraph 9.2;
(d) Seller shall have performed all of its obligations and covenants
under this Agreement; and
(e) all of Seller's representations and warranties in this Agreement
shall be true as of the Closing.
(f) Seller shall deliver an estoppel certificate from Insignia
Commercial Group, Inc. ("Manager") stating that it is not entitled to any
commissions relating to any lease at the Property, including any renewals,
expansions or extensions (whether heretofore or hereafter exercised) of any
Lease or leasing of additional space.
(g) Seller shall either (i) deliver a written acknowledgment
executed by Orix Credit Alliance, Inc. ("Orix") irrevocably and unconditionally
waiving any claim (the "Orix Claim") of Orix that Orix was overcharged rent in
connection with the alleged overstatment of rentable square footage, usable
square footage or other measurement of the premises leased by Orix pursuant to
the December 8, 1992 lease with Orix and the premises currently leased by Orix
pursuant to the First Amendment to Lease Agreement dated November 1994, or
(ii) deposit into escrow at Closing, pursuant to an escrow agreement
<PAGE>
satisfactory to Purchaser, an amount reasonably determined by Purchaser to be
the amount in dispute with Orix, pending the settlement of the dispute with
Orix and deliver to Purchaser an indemnity in form and substance acceptable to
Purchaser in its sole and absolute discretion indemnifying Purchaser against
any loss incurred by Purchaser in connection with the Orix Claim. Purchaser
acknowledges that, subject to the satisfaction of the condition precedent set
forth in this Paragraph 8.2(g), the estoppel letter executed by Orix dated
November 20, 1996 is satisfactory to Purchaser.
(h) Seller shall deliver a written acknowledgment from First Health
Strategies, Inc., (successor in interest to EBP Healthplans, Inc.) in form and
substance as attached as Exhibit P hereto that all improvements required to be
made by Seller to its premises have been completed and that all other
allowances, reimbursements or other obligations of Seller for the payment of
monies to such tenant have been paid, with the exception of an outstanding
tenant allowance in the amount of $34,224.
If any of the Purchaser Conditions have not occurred or been satisfied
within the time periods and strictly in accordance with the terms set forth
herein then, Purchaser shall so notify Seller and Seller shall have 30 days
from the date of such notice to satisfy any Purchaser Conditions. If Seller
fails to satisfy all the Purchaser Conditions within such 30 day period,
Purchaser shall have the right (without limitation of any other remedies
provided herein), to terminate this Agreement by written notice to Seller, in
which event the Earnest Money and all interest earned thereon shall be returned
to Purchaser, all other obligations of the parties hereto shall thereupon cease
(with the exception of any obligations which expressly survive the termination
of this Agreement) and this Agreement shall thereafter be of no further force
and effect.
9. CLOSING DOCUMENTS.
9.1 On the Closing Date, Seller and Purchaser shall execute and deliver
to one another a joint closing statement and shall deliver the Earnest Money
from the joint order escrow. In addition, Purchaser shall deliver to Seller
the balance of the Purchase Price, subject to any prorations and adjustments as
provided in this Agreement, an assumption of the documents set forth in
Paragraph 9.2.3 and 9.2.4, counterparts of any transfer tax declarations and
such other documents as may be reasonably required by the Title Insurer and not
inconsistent with the terms of this Agreement 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, subject to Permitted Exceptions and those Unpermitted
Exceptions waived by Purchaser in writing or not objected to by Purchaser in
accordance with Paragraph 5.1 hereof;
9.2.2 a special warranty bill of sale conveying the Personal Property
(in the form of Exhibit H attached hereto);
9.2.3 assignment and assumption (with respect to periods from and
after the Closing) of intangible property (in the form attached hereto as
Exhibit I) including the Assumed Contracts, but excluding Service Contracts
which are not Assumed Contracts;
<PAGE>
9.2.4 an assignment and assumption (with respect to periods from and
after the Closing) of Leases and security deposits (in the form attached hereto
as Exhibit J);
9.2.5 non-foreign affidavit (in the form of Exhibit K attached
hereto);
9.2.6 originals, and/or copies of, the Leases in Seller's possession
or control (unless Seller elects to leave such documents in the on-site
management office);
9.2.7 all documents and instruments reasonably required by the Title
Insurer to issue the Title Policy;
9.2.8 possession of the Property to Purchaser, subject to the Leases
and the Permitted Exceptions;
9.2.9 evidence of the termination of the management agreement, and
those Service Contracts which are not Assumed Contracts along with a lien
waiver executed by the property manager, if applicable;
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 the extent credit is given to Purchaser at Closing for the
applicable security deposit) to refund the refundable security deposits (in the
form of Exhibit L);
9.2.11 an updated rent roll certified by Seller to be true and
correct, subject to the provisions of Paragraph 17.1 and Paragraph 19 hereof;
9.2.12 Broker's Lien Waivers signed by Manager and Insignia
Mortgage & Investment Company ("Insignia");
9.2.13 an Owner's Title Affidavit or ALTA extended coverage statement
in form reasonably acceptable to Seller and Title Insurer;
9.2.14 such formative and authorization documents of Seller as may be
reasonably required by Title Insurer;
9.2.15 copies of all books and records as may be necessary to
calculate tenant escalations and reconciliations (unless Seller elects to leave
such documents in the on-site management office);
9.2.16 to the extent in Seller's possession or control, all
warranties and guarantees as to the Property, the complete tenant files,
including, without limitation, records of rental payments, correspondence and
escalation letters, service contracts and plans and specifications for the
Property, if any and such other papers or documents requested by Purchaser as
may be useful to Purchaser as the new owner and operator of the Property.
9.2.17 the Tenant Certificates and, if applicable, the Seller
Certificates (as hereinafter defined); and
9.2.18 all keys to the Improvements.
<PAGE>
10. ESTOPPEL CERTIFICATES.
10.1 Seller shall use reasonable efforts to obtain, at least five (5) days
prior to Closing, tenant estoppel certificates in the form attached hereto as
Exhibit M ("Tenant Certificates") from each tenant occupying space within the
Property. Purchaser's obligation to close the transaction contemplated herein
is contingent upon the delivery to Purchaser without any Qualification
(hereafter defined) of (i) a Tenant Certificate from each Major Tenant (but
with respect to the Paxson lease, in the form attached hereto as Exhibit M-1);
(ii) Tenant Certificates from tenants occupying at least 50% of the remaining
occupied square footage of the Premises (exclusive of the square footage
occupied by Major Tenants); and (iii) a Seller Certificate in the form attached
hereto as Exhibit N ("Seller Certificate") from every other tenant occupying
space in the Property as of the Closing Date that has not provided a Tenant
Certificate. As used herein, "Qualification" means any information which
adversely affects the use or value of the Property or the obligations of the
tenant or adversely affects the rights of the landlord (i) under any lease
which is not disclosed on the Rent Roll attached hereto as Exhibit C or in the
copies of the Leases delivered to Purchaser or (ii) which relates to the rent
payable under the Paxson lease.
10.2 Notwithstanding anything contained herein to the contrary, the
representations and warranties contained in any Seller Certificate executed by
Seller shall be subject to the provisions of Paragraph 18 hereof and the
limitations on the survival of such representations and warranties as set forth
in Paragraph 17.10 hereof.
10.3 Upon receipt after Closing by Purchaser of a Tenant Certificate
containing the information herein required from a tenant under a lease for whom
Seller has executed and delivered a Seller Certificate at Closing, the related
Seller Certificate executed and delivered by Seller at Closing shall become
null and void, and the Tenant Certificate received from the tenant or tenants
shall be substituted therefor.
11. SERVICE CONTRACTS. At Closing, Purchaser shall assume the contract dated
October_12, 1987 with Central Florida Sound (the "Assumed Contract"). Except
as provided below, all other Service Contracts, and any management and leasing
brokerage agreements, shall be terminated by Seller. Seller shall provide
notice of such termination to each contractor under the Service Contracts which
is not an Assumed Contract on the earlier of (i) the waiver by Purchaser of all
of the Purchaser's Conditions or (ii) the Closing Date. Seller has advised
Purchaser that the Service Contracts are terminable on 30 days prior written
notice. With respect to any Service Contracts which is not an Assumed
Contract, Purchaser and Seller shall prorate the payments due under such
Service Contracts as of the Closing Date, with the Purchaser being responsible
for its pro rata share of any payments attributable to the period after the
Closing Date and prior to the termination date of such Service Contracts. On
the Closing Date, Seller shall assign the Assumed Contract to Purchaser, and
Purchaser shall assume in writing responsibility of the obligations arising
from and after the Closing Date under the Assumed Contract. Seller shall use
reasonable efforts to obtain any required consent with respect to the
assignment of the Assumed Contract; provided, however, that Seller's inability
to obtain such approval shall not be a default hereunder or a condition
precedent to Purchaser's obligations to close hereunder.
<PAGE>
12. LEASING OF PROPERTY.
12.1 Seller shall not enter into any lease or third-party contract or any
modification or termination of any lease or third party contract which does not
expire prior to Closing (collectively "New Agreements") relating to the
Property (including any leasing commission agreements) without prior written
notification to and approval by Purchaser. Nothing herein shall obligate
Purchaser to assume any third-party contract which Purchaser has not elected to
assume pursuant to Paragraph 11. Any New Agreement so approved by Purchaser
shall be a "Lease" or a "Service Contract," as applicable.
12.2 The termination of any Lease prior to Closing by reason of a tenant's
default will not affect the obligations of Purchaser under this Agreement in
any manner, or entitle Purchaser to an abatement of or credit against the
Purchase Price, or give rise to any other claim by Purchaser, and if any space
in the Improvements is vacant on the Closing Date, Purchaser will accept the
Property subject to the vacancy.
13. DEFAULT BY PURCHASER. ALL EARNEST MONEY DEPOSITED INTO THE ESCROW IS TO
SECURE THE TIMELY PERFORMANCE BY PURCHASER OF ITS OBLIGATIONS AND UNDERTAKINGS
UNDER THIS AGREEMENT. IN THE EVENT OF A DEFAULT OF THE PURCHASER UNDER THE
PROVISIONS OF THIS AGREEMENT AND THE FAILURE OF PURCHASER TO CLOSE THE
TRANSACTION CONTEMPLATED HEREBY AT THE TIME AND IN THE MANNER PROVIDED HEREIN,
SELLER SHALL RETAIN ALL OF THE EARNEST MONEY AND THE INTEREST THEREON AS
SELLER'S SOLE RIGHT WITH RESPECT TO DAMAGES OR ANY OTHER REMEDY, EXCEPT FOR
SELLER'S REMEDIES FOR A BREACH OF THOSE COVENANTS AND OBLIGATIONS OF PURCHASER
WHICH EXPRESSLY SURVIVE TERMINATION OF THIS AGREEMENT. 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.
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, BUT SUBJECT TO THE
LIMITATIONS ON LIABILITY PROVIDED IN SECTION 18, IN THE EVENT THE CLOSING
OCCURS AND IN THE EVENT OF A BREACH BY PURCHASER OF ANY REPRESENTATION,
WARRANTY, COVENANT, AGREEMENT, PRORATION OR REPRORATION OBLIGATION OR INDEMNITY
WHICH SURVIVES CLOSING, SELLER SHALL HAVE ALL RIGHTS AND REMEDIES AT LAW OR AT
EQUITY, WITHOUT LIMITATION.
14. 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, EXCEPT THAT PURCHASER SHALL ALSO
HAVE THE RIGHT TO REIMBURSEMENT FROM SELLER FOR ITS ACTUAL, DOCUMENTED THIRD
PARTY EXPENSES (NOT TO EXCEED $100,000 IN ANY EVENT) INCURRED IN THE
NEGOTIATION OF THIS AGREEMENT AND THE PERFORMANCE OF ITS DUE DILIGENCE
HEREUNDER. UPON THE RETURN OF THE EARNEST MONEY AND THE REIMBURSEMENT BY
SELLER FOR OUT OF POCKET COSTS AS PROVIDED ABOVE, THE PARTIES SHALL HAVE NO
FURTHER LIABILITY TO EACH OTHER AT LAW OR IN EQUITY, EXCEPT FOR THOSE COVENANTS
AND OBLIGATIONS WHICH EXPRESSLY SURVIVE TERMINATION OF THIS AGREEMENT.
NOTWITHSTANDING ANYTHING CONTAINED HEREIN TO THE CONTRARY, IF SELLER'S DEFAULT
RESULTS FROM (i) ITS (AND NOT AN UNRELATED THIRD PARTY'S) AFFIRMATIVE ACTION
WHICH RESULTS IN THE RECORDING OF AN ENCUMBRANCE AGAINST THE PROPERTY AND WHICH
GIVES RISE TO PURCHASER'S RIGHT TO TERMINATE THIS AGREEMENT PURSUANT TO
PARAGRAPH 5 HEREOF; OR (ii) SELLER'S FAILURE TO EXPEND UP TO $25,000 IF (a)
SELLER IS ABLE TO BOND OVER, CURE OR REMOVE A MINOR UNPERMITTED EXCEPTION FOR A
COST NOT TO EXCEED $25,000 OR (b) THE TITLE INSURER IS WILLING TO INSURE OVER A
<PAGE>
MINOR UNPERMITTED EXCEPTION FOR A COST NOT TO EXCEED $25,000 IN ACCORDANCE WITH
THE TERMS HEREOF OR (iii) SELLER'S REFUSAL TO DELIVER THE DEED OR THE OTHER
CONVEYANCE DOCUMENTS DESCRIBED IN PARAGRAPHS 9.2.1-9.2.7, 9.2.10-9.2.11 and
9.2.13-9.2.16 OF THIS AGREEMENT, PURCHASER SHALL BE ENTITLED TO SUE FOR
SPECIFIC PERFORMANCE. IN NO EVENT SHALL SELLER BE LIABLE FOR ANY ACTUAL,
PUNITIVE, SPECULATIVE OR CONSEQUENTIAL DAMAGES RESULTING FROM ANY DEFAULT BY
SELLER. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, BUT SUBJECT
TO THE LIMITATIONS ON LIABILITY PROVIDED IN SECTION 18, IN THE EVENT THE
CLOSING OCCURS AND IN THE EVENT OF A BREACH BY SELLER OF ANY REPRESENTATION,
WARRANTY, COVENANT, AGREEMENT, PRORATION OR REPRORATION OBLIGATION OR INDEMNITY
WHICH SURVIVES CLOSING, THE PURCHASER SHALL HAVE ALL RIGHTS AND REMEDIES AT LAW
OR AT EQUITY, WITHOUT LIMITATION; PROVIDED, HOWEVER, THAT IN NO EVENT SHALL
SELLER'S LIABILITY UNDER ANY REPRESENTATION, WARRANTY, COVENANT, AGREEMENT,
PRORATION, REPRORATION OBLIGATION OR INDEMNITY MADE HEREUNDER OR UNDER ANY
CLOSING DOCUMENTS EXCEED $200,000 IN THE AGGREGATE ("SELLER'S MAXIMUM
LIABILITY").
15. PRORATIONS.
15.1 Water and other utility charges due for the period prior to 12:01
a.m. on the Closing Date ("Proration Date") shall be paid by Seller. Regular
ad valorem real estate taxes shall be prorated as of the Proration Date. Real
Estate tax prorations shall be based on the maximum discounted rate available
at Closing. Prior to Closing, Purchaser and Seller shall notify all utilities
providing service to the Property of the prospective change in ownership and
that all bills for the period from and after the Proration Date shall be paid
by Purchaser, with no interruption in service. All utility deposits, if any,
may be withdrawn by and refunded to Seller and Purchaser shall make its own
replacement deposits for utilities as may be required by the respective
utilities involved. Assessments, excluding regular ad valorem real estate
taxes, which are due prior to the Closing Date shall be paid by Seller.
Assessments, excluding regular ad valorem real estate taxes, which are due
subsequent to the Closing Date shall be paid by Purchaser. 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
ongoing real estate tax contest has not been finalized as of the Closing Date,
Purchaser and Seller agree that the tax bill existing prior to the contest,
shall be the most recent data for the tax year being contested and (i)
Purchaser agrees to re-prorate such amount as it relates to the real estate tax
proration for the current tax year to the extent such tax contest is
successful. All other prorations will be final except as to rent
reconciliations referred to in Paragraphs 15.2 and 15.3 below and as provided
in Paragraph 15.4.
15.2 All base rent, percentage rent and other common area maintenance, tax
and insurance charges actually paid by tenants under the Leases and all other
items of income actually received from the operation of the Property (all such
charges other than base rent, "Additional Rent") shall be prorated as of the
Proration Date. Purchaser shall receive a credit at Closing for all prepaid
rent. To the extent the Leases provide for the adjustment of previously paid
estimates of Additional Rent on a date after the Proration Date, Seller shall
be entitled to receive, or shall be responsible to pay, as the case may be, its
pro rata share of any such adjusted amounts which are applicable to periods
ending prior to the Proration Date. Seller agrees that Seller shall promptly
remit to Purchaser any rental or other payments that Seller, or any of its
affiliates or agents, may receive post-Closing, except that Seller need not
remit payments attributable to periods prior to the Proration Date if the
<PAGE>
tenant making such payment to Seller is current in all payments due to
Purchaser for periods after the Proration Date. Purchaser shall deliver to
each tenant of the Property (with a copy of each to Seller) a final
reconciliation of Additional Rent due for calendar year 1996 on or before
March 1, 1996. Purchaser shall use reasonable efforts (without any obligation
to terminate leases or initiate lawsuits) to collect such Additional Rent from
such tenants. On May 1, 1996, Purchaser shall provide Seller with a
reconciliation of the amount of all Additional Rent collected from or refunded
to tenants for calendar year 1996, and Purchaser and Seller shall reprorate
such Additional Rent as of the Proration Date, within 10 days after Purchaser's
delivery to Seller of such reconciliation. Notwithstanding anything to the
contrary herein, the provisions of this Paragraph shall survive the Closing.
15.3 There shall be no credit to Seller for rent or other amounts
delinquent as of the Closing Date. All basic rent paid following the Closing
Date by any tenant of the Property who is indebted under a Lease for basic rent
for any period prior to the Proration Date in an amount greater than the amount
of all current basic rent owed by said tenant to Purchaser for periods on or
after the Closing Date shall be deemed a "Post-Closing Receipt" until such time
as all such indebtedness is paid in full. Within ten (10) days following each
receipt by Purchaser of a Post-Closing Receipt, Purchaser shall pay such
Post-Closing Receipt to Seller. Purchaser shall use its reasonable, good faith
efforts, at no additional cost or expense to Purchaser, and without any
obligation to terminate leases or initiate lawsuits, to collect all amounts
which, upon collection, would constitute Post-Closing Receipts hereunder.
Within 180 days after the Closing Date, Purchaser shall deliver to Seller a
reconciliation statement of Post-Closing Receipts through the first 150 days
after the Closing Date. Upon the delivery of the Post-Closing Receipts
reconciliation, Purchaser shall deliver to Seller any Post-Closing Receipts
owing to Seller and not previously delivered to Seller in accordance with the
terms hereof. Purchaser shall provide Seller with any information reasonably
necessary to verify the accuracy of the Post-Closing Receipts reconciliation
statement and upon the verification of additional funds owing to Seller,
Purchaser shall pay to Seller said additional Post-Closing Receipts. This
Paragraph 15.3 of this Agreement shall survive the Closing and the delivery and
recording of the Deed.
15.4 All refunds for time periods prior to the Proration Date in
connection with any ongoing real estate tax protests for the Property initiated
by Seller prior to the Closing shall remain the property of Seller (except to
the extent required to be refunded to tenants under such tenants' leases) and
are not being assigned by Seller to Purchaser pursuant to this Agreement. In
the event any such refunds are paid to Purchaser, Purchaser agrees to promptly
remit all such sums to Seller subject to the rights, if any, of any existing
tenant of the Real Property to receive any pro rata share of such refund under
such tenant's lease. Purchaser agrees, at no cost, expense, liability or
potential liability to Purchaser, to execute any documents reasonably requested
by Seller in connection with such tax protests.
15.5 In addition to the foregoing prorations and credits, Landlord shall
provide Purchaser at Closing with a credit of $139,192.75 (calculated as
follows) in connection with certain tenant improvement costs to be assumed by
Purchaser with respect to the Lease with EBP Healthplans, Inc. ("EBP") and the
Lease with Paxson Broadcasting of Orlando ("Paxson"):
<PAGE>
Paxson tenant improvement allowances
assumed by Purchaser:
2nd Amendment $ 45,018.75
3rd Amendment 177,186.00
Subtotal $222,204.75
Payment made by Seller ($2,100.00)
Purchaser's agreed share of
Paxson improvement allowance ($80,136.00)
Purchaser credit to Seller for leasing
commission paid for Paxson amendment ($35,000.00)
Outstanding EBP tenant improvement
balance under August 2, 1994 Lease $ 34,224.00
-----------
Net closing credit to Purchaser $139,192.75
===========
16. BROKER. The parties hereto represent and warrant that no broker commission
or finder fee is due and payable in connection with this transaction, by reason
of their respective actions, other than to Insignia. All amounts owing to
Insignia shall be paid by Seller. Seller's commission to Insignia 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 attorneys' 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 Insignia. Seller shall
indemnify, defend and hold Purchaser harmless from any claim (including,
without limitation, reasonable attorneys' fees, court costs and costs of
appeal) for any claim by Insignia for any fee, commission or compensation on
account of this Agreement, its negotiation or the sale hereby contemplated,
other than any claim by Insignia on account of any agreement or negotiations
between Insignia and Purchaser. The indemnifying party shall undertake its
obligations set forth in this Paragraph 16 using attorneys selected by the
indemnifying party and reasonably acceptable to the indemnified party. The
provisions of this Paragraph 16 will survive the Closing and delivery of the
Deed.
17. REPRESENTATIONS, WARRANTIES AND COVENANTS.
17.1 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 James Mendelson or Thomas Molina ("Seller's Representatives"), and any
representation or warranty of the Seller is based upon those matters of which
the Seller's Representatives have actual knowledge. Seller's Representatives
are the executive officers within Seller's organization who are primarily
responsible for the management and operation of the Property. Prior to the
execution of this Agreement by Seller, Seller's Representatives shall provide a
copy of this Agreement to Len McKee, Seller's on-site property manager, and
review with Ms. McKee the accuracy of each of the representations and
warranties made herein by Seller. Except to the extent disclosed to Seller's<PAGE>
Representatives by Ms. McKee as provided above, 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
Representatives.
17.2 Subject to the limitations set forth in Paragraph 17.1, Seller hereby
makes the following representations and warranties, which representations and
warranties shall be deemed remade as of the Closing and except as to (ii)
below, are made to Seller's knowledge and all of which shall survive Closing
for a period of 180 days: (i) except as listed on Exhibit O, Seller has no
knowledge of any pending or threatened litigation, claim, cause of action or
administrative proceeding concerning the Property; (ii) Seller has the power to
execute this Agreement and consummate the transactions contemplated herein;
(iii) the rent rolls attached hereto as Exhibit C and updated as of the Closing
Date are accurate and complete (with respect to the categories of information
included therein) in all material respects as of the date set forth therein;
(iv) the Seller has not given or suffered any assignment, pledge or encumbrance
with respect to any of the Leases or its interests thereunder; (v) the list of
Service Contracts attached hereto as Exhibit D is accurate as of the date
hereof and comprises all service and maintenance contracts relating to the
Property; (vi) except as listed on Exhibit O, Seller has received no written
notice or claim relating to an uncured breach or violation of any Environmental
Laws or any other laws, regulations, ordinances or covenants, conditions and
restrictions in connection with the Property; (vii) except as listed on Exhibit
O, Seller has received no notice of any uncured landlord default from any
tenant in connection with any Lease; (viii) the execution of this Agreement by
Seller and Seller's observance and performance of all of its covenants and
obligations hereunder do not contravene any judgment or order binding on Seller
or make inoperative or result in any material adverse affect on any lease,
easement, right or interest binding upon Seller or any of the Property;
(ix) Seller has not entered into any contracts for the sale of any option or
any other rights to purchase all of any portion of the Property; and (x) the
leasing commission and brokerage agreements delivered to Purchaser by Seller in
accordance with Paragraph 7.1 hereof constitute all of the leasing commission
and brokerage agreements for the Property entered into by Seller, and Seller
has paid all commissions (i) due under such agreements as of the date hereof
with respect to events occurring prior to the date hereof and (ii) now or
hereafter due or owing in connection with the Second and Third Amendment to the
Lease with Paxson.
17.3 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.
17.4 Seller covenants to operate, maintain and manage the Property in the
same manner that it has managed, maintained and operated the Property during
the period of Seller's ownership, subject to reasonable wear and tear and
casualty.
17.5 Any document or instrument which Seller has executed or, subject to
Section 5.1 hereof, which has been recorded or filed (between the date of this
Agreement and the Closing Date) as the case may be, which document or
instrument grants or conveys a lien, security interest, encumbrance or other
interest in or against the Property, shall be terminated and removed from
public records by Seller at or prior to the Closing.
<PAGE>
17.6 Seller shall not (except for alterations that are required by any
governmental authority or are specifically required under any of the Leases)
make any alterations to the Property which adversely affect the Property
without obtaining the prior written consent of Purchaser (which consent shall
not be unreasonably withheld).
17.7 Prior to Closing, Seller shall (i) timely perform and comply with all
of its obligations under the Leases and the Assumed Contracts, (ii) deliver to
Purchaser copies of all notices, correspondence, demands and other written
documents delivered or received by Seller or its agents under or in connection
with any of the Leases or the Service Contracts or otherwise relating to the
Property, and (iii) not terminate any of the Leases without Purchaser's prior
written consent.
17.8 Seller shall not initiate, consent to, approve or otherwise take any
action with respect to zoning or any other governmental rules or regulations
presently applicable to any part of the Property (other than compliance with
the requirements of any applicable laws, rules and regulations) without the
prior written consent of Purchaser (which consent shall not be unreasonably
withheld).
17.9 Seller shall, at Seller's sole cost and expense, terminate any lease
or occupancy agreement with Manager as of the Closing Date.
17.10 The representations, warranties and covenants set forth herein
and in any Seller Certificate or Closing Document shall survive Closing for a
period of 180 days after the Closing Date ("Survival Period"). All rights of
Purchaser or Seller hereunder with respect to any such surviving
representation, warranty or covenant shall be deemed waived if Purchaser or
Seller, as the case may be, do not, by notice to the other, advise the other of
any alleged breach of representation, warranty or covenant prior to the
expiration of the Survival Period. Notwithstanding anything herein to the
contrary, Seller's liability under any representation, warranty or covenant
made hereunder or in any Seller Certificate or any Closing Document shall in no
event exceed Seller's Maximum Liability.
On the Closing Date, Seller shall deposit the sum of $200,000 into escrow
in accordance with an escrow agreement to be executed by the parties hereto, in
order to secure Seller's obligations under any such surviving representations,
warranties or covenants. The escrow shall provide that the escrowed funds
shall be disbursed to Seller automatically without notice to or consent from
either party hereto unless Purchaser makes a claim against Seller in accordance
with this Paragraph 17.10 prior to the expiration of the Survival Period and so
notifies the escrowee within such time period.
18. LIMITATION OF LIABILITY. None of Seller's or Purchaser's beneficiaries,
shareholders, partners, officers, agents, employees or heirs or any of the
successors or assigns of such beneficiaries, shareholders, partners, officers,
agents, employees or heirs, 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 each of the parties hereto hereby waives
for itself and anyone who may claim by, through or under such party any and all
rights to sue or recover from any of the foregoing on account of any such
alleged personal liability.
<PAGE>
19. 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:
TO SELLER: c/o The Balcor Company
Bannockburn Lake Office Plaza
2355 Waukegan Road
Suite A200
Bannockburn, Illinois 60015
Attention: Ilona Adams
(847) 317-4462 (FAX)
with copies to:The Balcor Company
Bannockburn Lake Office Plaza
2355 Waukegan Road
Suite A200
Bannockburn, Illinois 60015
Attention: James Mendelson
(847) 317-4462 (FAX)
and to: Hopkins & Sutter
Three First National Plaza
Suite 4100
Chicago, Illinois 60602
Attention: Wayne F. Osoba
(312) 558-6538 (FAX)
TO PURCHASER: CMD Realty Investment Fund II, L.P.
c/o CMD Realty Investments, Inc.
800 West Cypress Creek Road
Fort Lauderdale, Florida 33309-2046
Attention: Paul Kilgallon
(954) 776-6099 (FAX)
with copies to:CMD Realty Investment Fund II, L.P.
227 W. Monroe
Suite 3400
Chicago, Illinois 60602
Attention: Randal J. Selig, Esq.
(312) 726-9473 (FAX)
and to: Barack, Ferrazzano, Kirschbaum & Perlman
333 W. Wacker Drive
Suite 2700
Chicago, Illinois 60606
Attention: Howard J. Kirschbaum, Esq.
(312) 984-3150 (FAX)
<PAGE>
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 when received (or upon refusal to accept receipt) or
the same day as given if sent via facsimile transmission and received by 5:00
p.m. Chicago time, or on receipt or refusal to accept, if sent by 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 transmission as
aforesaid shall be deemed to be given, delivered or made only 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 at the address
specified in the Escrow Agreement. All time periods for responses by either
party set forth in this Agreement shall commence upon the receipt of notice as
set forth hereinabove.
20. EXECUTION OF AGREEMENT AND ESCROW AGREEMENT. Purchaser will execute two
(2) copies of this Agreement and three (3) copies of the Escrow Agreement and
forward them to Seller for execution. Seller will forward one (1) copy of the
executed Agreement to Purchaser and will forward to the escrow agent 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.
21. JURISDICTION AND VENUE. Seller and Purchaser each hereby irrevocably
submits to the jurisdiction of any State or Federal court sitting in the County
of Cook and State of Illinois over any action or proceeding arising out of or
relating to this Agreement, and Seller and Purchaser each hereby irrevocably
agrees that all claims in respect of such action or proceeding may be heard or
determined in any such State or Federal court. Seller and Purchaser each
hereby irrevocably waives, to the fullest extent it may effectively do so, the
defense of an inconvenient forum to the maintenance of such action or
proceeding. Seller and Purchaser each irrevocably consents to the service of
any and all process in any such action or proceeding by the mailing of copies
of such process to Seller or Purchaser, as the case may be, at its respective
address specified in Paragraph 19 hereof. Seller and Purchaser each hereby
agrees that the final judgment in any such action or proceeding shall be
conclusive and may be enforced in any other jurisdiction by suit on the
judgment or in any other matter provided by law. Nothing in this paragraph
shall affect the right of Seller or Purchaser, as the case may be, to serve
legal process in any other manner permitted by law or affect the right of
Seller or Purchaser, the case may be, to bring any action or proceeding against
the other in the courts of any other jurisdiction.
22. MISCELLANEOUS
(a) Time is of the essence of each provision of this Agreement.
(b) This Agreement and all provisions hereof shall extend to and be
obligatory upon and inure to the benefit of the respective heirs, legatees,
legal representatives, successors and assigns of the parties hereto.
(c) The section and paragraph headings of this Agreement are for
convenience only and in no way define, limit or enlarge the scope or meaning of
the language hereof. The terms "hereby," "herein," "hereof," "hereto,"
"hereunder" and any similar terms used in this Agreement refer to this
Agreement. The term "including" shall not be construed in a limiting nature,
but shall be construed to mean "including, without limitation." Words
<PAGE>
importing persons shall include firms, associations, partnerships, trusts,
corporations and other legal entities, including public bodies, as well as
natural persons. Words importing the singular shall include the plural and
vice versa. Words of the masculine gender shall be deemed to include
correlative words of the feminine and neuter genders.
(d) This Agreement and the Escrow Agreement and the closing
documents contain the entire agreement between the parties relating to the
transactions contemplated hereby, and all prior or contemporaneous agreements,
understandings, representations and statements, oral or written, are merged
herein. No representations, warranties, undertakings or promises (whether oral
or written, express or implied), can be made or have been made by Seller or its
agents, representatives or brokers to Purchaser or any other person unless
expressly stated herein or in the closing documents. No modification or
amendment of this Agreement or any waiver of any provision hereof shall be
effective unless the same is in writing signed by the party against whom
enforcement of such modification, amendment or waiver is sought.
(e) This Agreement shall be governed by and construed in accordance
with the laws of the State of Florida. If any of the provisions of this
Agreement or the application thereof to any persons or circumstances shall, to
any extent, be deemed invalid or unenforceable, the remainder of this Agreement
and the application of such provisions to persons or circumstances other than
those as to whom or which it is held invalid or unenforceable shall not be
affected thereby, and every provision of this Agreement shall be valid and
enforceable to the fullest extent permitted by law.
(f) This Agreement and any document or instrument executed pursuant
hereto may be executed in any number of counterparts, each of which shall be
deemed an original, but all of which together shall constitute one and the same
instrument.
(g) The submission by Seller of this Agreement to Purchaser for
examination does not constitute an offer by Seller to sell, or a reservation of
or option to purchase the Property. This Agreement shall not become a contract
until executed and delivered by Purchaser and Seller in the manner set forth
herein.
(h) If Purchaser or Seller consist of more than one entity, then
each such person or entity executing this Agreement as Purchaser or Seller
shall be jointly and severally liable for the obligations of Purchaser or
Seller hereunder.
(i) Purchaser shall not record this Agreement or any memorandum
hereof, and any such recording shall be a default hereunder.
(j) Prior to Closing, Purchaser and Seller shall jointly prepare and
issue all releases of information relating to the sale of the Property, and any
inquiries regarding the transaction contemplated hereby shall be responded to
only after consultation with the other party hereto.
(k) If either party institutes a legal action against the other
relating to this Agreement or any default hereunder, the unsuccessful party to
such action will reimburse the successful party for the reasonable expenses of
prosecuting or defending such action, including without limitation, attorneys
fees and disbursements and court costs.
<PAGE>
(l) This Agreement shall not be construed more strictly against one
party than against the other merely by virtue of the fact that the Agreement
may have been prepared primarily by counsel for one of the parties, it being
recognized that both Purchaser and Seller have contributed substantially and
materially to the preparation of this Agreement.
(m) 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 13 hereof. Notwithstanding the foregoing, Purchaser
may assign its interest in this Agreement without the consent of Seller to any
entity affiliated with, controlling, or controlled by or under common control
with Purchaser, CMD Corporation, CMD REIM II, or CMD Realty Investors, Inc.
(each, an "Assignee"), provided that Purchaser remains liable for and the
Assignee assumes the obligations of Purchaser hereunder. If the Assignee
petitions or applies for relief under any bankruptcy laws or is adjudicated as
a bankrupt or insolvent, or if Assignee files any petition, application for
relief or answer-seeking or acquiescing in any reorganization, arrangement,
composition, readjustment, liquidation, dissolution or similar relief for
itself under any present or future federal, state or other statute, law, code
or regulation relating to bankruptcy, insolvency, or other relief for debtors
(collectively, a "Bankruptcy Filing") on or before the Closing Date, said
Bankruptcy Filing shall be a default under this Agreement and Purchaser shall
indemnify Seller for all costs, attorney's fees and expenses of Seller
resulting from Seller's efforts to obtain the Earnest Money as liquidated
damage and to clear title to the Property with respect to any encumbrance
resulting from the Bankruptcy Filing.
23. PROPERTY EXCHANGE. In the event Purchaser desires to designate the
Property as replacement property, in an exchange under Section 1031 of the
Internal Revenue Code, for any property which Purchaser has owned or currently
owns (the "Relinquished Property"), Seller will cooperate with Purchaser (at no
cost, expense, liability or potential liability to Seller) in effecting such an
exchange in compliance with the Internal Revenue Code and applicable treasury
regulations, including the assignment of this Agreement, if necessary. Seller
will not be responsible for the tax consequences to Purchaser of the
transactions contemplated under this Agreement or under the agreement to sell
the Relinquished Property. Seller will not be required to accept title to the
Relinquished Property and will have no obligations whatsoever to the owner of
the Relinquished Property. Under no circumstances will Purchaser be relieved
of any of its obligations under this Agreement as a result of the contemplated
exchange. Purchaser shall defend, indemnify and hold Seller and any Affiliates
or Seller harmless from any and all liability, cost and expense (including,
without limitation, reasonable attorneys' fees, court costs and costs of
appeal) suffered or incurred by Seller or Affiliates of Seller in connection
with any such exchange.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first set forth above.
PURCHASER:
CMD REALTY INVESTMENT FUND II, L.P.
By: CMD REIM II, Inc., its general partner
By: /s/Randal J. Selig
-------------------------------
Name: Randal J. Selig
-------------------------------
Its: Vice President
-------------------------------
SELLER:
ROCLAB-C INVESTORS, an Illinois limited partnership
By: Balcor Equity Partners-I, an Illinois general
partnership, its general partner
By: The Balcor Company, a Delaware corporation,
general partner
By: /s/John K. Powell
------------------------------
Name: John K. Powell, Jr.
------------------------------
Its: Senior Vice President
------------------------------
<PAGE>
Insignia Mortgage_& Investment Company ("Broker") executes this Agreement in
its capacity as a real estate broker and acknowledges that the fee or
commission ("Fee") due to it as a result of the transaction described in this
Agreement is the amount as set forth in the listing agreement between Broker
and Seller. Broker also acknowledges that payment of the aforesaid Fee is
conditioned upon the Closing and the receipt of the Purchase Price by the
Seller. Broker agrees to deliver a receipt to the Seller at the Closing for
the Fee and a release stating that no other fees or commissions are due to
Broker from Seller or Purchaser.
INSIGNIA MORTGAGE & INVESTMENT COMPANY
By: /s/Al Lieberman
------------------------
<PAGE>
LIST OF EXHIBITS
A. Legal Description
B. Personal Property
C. Leases/Rent Roll
D. Service and Maintenance Contracts
E. Escrow Agreement
F. Copy of Title Commitment
G. Limited Warranty Deed
H. Special Warranty Bill of Sale
I. Assignment and Assumption of Intangible Property
J. Assignment and Assumption of Leases and Security Deposits
K. FIRPTA
L. Tenant Notice Letter
M. Tenant Certificate
N. Seller Certificate
O. Disclosure
P. EBP Acknowledgement
<PAGE>
ESCROW AGREEMENT
THIS ESCROW AGREEMENT is made and entered into on this 2nd day of
December, 1996, by and among Roclab-C Investors ("Seller"), CMD Realty
Investment Fund II, L.P. ("Purchaser") and Charter Title Company ("Escrow
Agent").
RECITALS
A. Seller and Purchaser have entered into that certain Agreement of Sale
dated December 2, 1996, ("Agreement"), providing for the sale by Seller of
property commonly known as Park Center in Maitland, Florida ("Property").
B. The parties wish to enter into this Escrow Agreement to provide for (1)
the holding and disposition of the earnest money under the Agreement, and (2)
the closing of the transaction contemplated by the Agreement.
NOW, THEREFORE, the parties hereto agree as follows:
1. Following the execution of this Escrow Agreement, Purchaser will deliver
to Escrow Agent funds in the amount of $200,000 ("Earnest Money"). Escrow
Agent shall acknowledge in writing to Purchaser and Seller receipt of a check
or funds representing the Earnest Money.
2. Unless terminated in accordance with this Agreement on or before
December 6, 1996 ("Closing Date"):
a. Seller's attorneys, Hopkins & Sutter, (312) 558-6600, by Wayne_F.
Osoba or Thomas Buranosky, will deposit the following documents:
(1) Special Warranty Deed executed by Seller;
(2) Special Warranty Bill of Sale executed by Seller;
(3) Assignment and Assumption of Intangible Property executed by
Seller;
(4) Assignment and Assumption of Leases and Security Deposits
executed by Seller;
(5) Non-Foreign Affidavit executed by Seller;
(6) Originals and/or copies of leases in the Seller's possession;
(7) ALTA Extended Coverage Statement executed by Seller;
(8) GAP Undertaking executed by Seller;
(9) Evidence of termination of management agreement executed by
Seller;
(10) Notice to the tenants of the Property regarding the transfer of
title to the Property and the assumption by Purchaser of the landlord's
obligations under the leases;
(11) Updated rent roll certified by Seller;
<PAGE>
(12) Broker's Lien Waivers executed by Insignia Commercial Group,
Inc. ("Manager") and Insignia Mortgage & Investment Company;
(13) Property Manager's Lien Waiver executed by Manager;
(14) A certified copy of Seller's partnership agreement; and
(15) Manager estoppel relating to lease commissions.
b. Purchaser's Attorneys, Barack, Ferrazzano, Kirschbaum & Pearlman,
(312) 984-3139, by Douglas W. Anderson, will deposit the following documents:
(1) Purchaser's counterpart of the Assignment and Assumption of the
Intangible Property executed by Purchaser;
(2) Purchaser's counterpart of the Assignment and Assumption of
Leases executed by Purchaser;
c. Purchaser and Seller (or their respective attorneys) will jointly
deposit the following:
(1) Any real estate transfer tax declarations which may be required
to effectuate the transaction contemplated hereby; and
(2) Closing Statement (five originals).
3. When you have received all of the deposits listed in Section 3 above and
when you are irrevocably committed to issue a Lawyers Title Insurance
Corporation ("Lawyers Title") Owner's Policy of Title Insurance ("Title
Policy") having an effective date as of the date the Deed is recorded, in the
amount of $8,300,000 and insuring the title of Purchaser in the Property, in
the form of the Pro Forma Title Policy attached hereto as Exhibit B, you are to
notify Purchaser and Seller, whereupon Purchaser will deposit, pursuant to the
wire transfer instructions shown on Exhibit A, the amount required to close as
shown on the Closing Statement, and upon receipt of such funds from Purchaser
you are then authorized and instructed to proceed as follows:
a. Purchase and affix transfer stamps to the Deed, if any, and record
the Deed.
b. Pay the disbursements as shown on the Closing Statement from the
funds deposited by Purchaser.
c. Deliver to Purchaser the Title Policy, the recorded Deed, the Bill of
Sale, one original of the Assignment and Assumption of Intangible Property, one
original of the Assignment and Assumption of Lease, the original leases, the
tenant notice letters, a copy of the FIRPTA Affidavit, the certified rent roll,
copies of the transfer declarations, two originals of the Closing Statement,
and copies of all other documents deposited by Seller hereunder.
d. Deliver to Seller one original of the Assignment and Assumption of
Intangible Property, one original of the Assignment and Assumption of Lease,
copies of the transfer declarations, two originals of the Closing Statement,
and copies of all other documents deposited by Purchaser hereunder.
<PAGE>
4. In the event all escrow deposits have not been received herein on or
before 5:00 p.m. on December 6, 1996 or if Lawyer's Title is not prepared to
issue the Title Policy or to comply with the other instructions contained
herein on or before 5:00 p.m. on December 6, 1996, you are hereby authorized
and directed to continue to comply with this Escrow Agreement until you have
received a written demand from any party hereto for the return of the deposits
made hereunder by said party. Upon receipt of such demand, you are hereby
authorized and directed to return to the party making such demand the deposits
made by such party without notice to any other party and you may return all
remaining deposits to the respective depositors thereof, except that,
notwithstanding the terms hereof, (A) joint deposits shall be destroyed, and
(B) the Earnest Money, together with interest earned thereon, shall be retained
by you, until you receive a joint instruction executed by Purchaser and Seller.
Notwithstanding the foregoing, if the Deed has been recorded, then prior to
returning any deposits to Purchaser, you must receive and record a quit claim
deed of reconveyance reconveying the Property to the grantor in the Deed
deposited by Seller and Lawyer's Title must be prepared to issue an owner's
policy of title insurance in the amount stated herein insuring the title of
Seller, free and clear of acts done or suffered by or judgments against
Purchaser. The Seller shall pay for the recording of the reconveyance deeds
and the title policy.
5. Escrow Agent shall invest all funds held hereunder in such investments, or
types thereof, as shall be designated in writing by Seller and Purchaser. If
Seller does not designate any investments, then the funds shall be held by
Escrow Agent in an interest bearing account, in a financial institution which
has FDIC insurance covering up to $100,000 of such funds. Interest shall accrue
to the benefit of Purchaser.
6. With respect to the Earnest Money, it is agreed that the Escrow Agent
shall have no obligation or liability hereunder except as a depositary to
retain the cash which may be deposited with it hereunder and to dispose of the
same in accordance with the terms hereof. With respect to the Earnest Money,
the Escrow Agent shall be entitled to rely and act upon any written instrument
received by it from either party, and if a corporation, purporting to be
executed by an officer thereof, and if a partnership, purporting to be executed
by a general partner thereof and shall not be required to inquire into the
authority of such officer or partner or the correctness of the facts stated in
said instrument. With respect to the Earnest Money, by acceptance of this
agreement, Escrow Agent agrees to use its best judgment and good faith in the
performance of any of its obligations and duties under this Agreement and shall
incur no liability to any person for its acts or omissions hereunder, except
for those acts or omissions which may result from its gross negligence or
willful misconduct. With respect to the Earnest Money, upon disposition by the
Escrow Agent, in accordance with the terms hereof, of the cash deposited with
the Escrow Agent hereunder, the Escrow Agent shall be fully and finally
released and discharged from any and all duties, obligations, and liabilities
hereunder.
7. With respect to the Earnest Money, the Escrow Agent shall be reimbursed
for any reasonable expenses incurred by it hereunder, including the reasonable
fees of any attorneys which it may wish to consult in connection with the
performance of its duties hereunder. Such compensation and expenses shall be
paid and reimbursed to the Escrow Agent one-half by Purchaser and one-half by
Seller.
<PAGE>
8. In the event of a dispute between any of the parties hereto as to their
respective rights and interests hereunder, the Escrow Agent shall be entitled
to hold any and all cash then in its possession hereunder until such dispute
shall have been resolved by the parties in dispute and the Escrow Agent shall
have been notified by instrument jointly signed by all of the parties in
dispute, or until such dispute shall have been finally adjudicated by a court
of competent jurisdiction.
9. Any notice which any party may be required or may desire to give hereunder
shall be deemed to have been duly given when personally delivered, against
receipt therefor signed by the party to whom the notice is given, or with
respect to any party other than the Escrow Agent, on the next business day if
sent by overnight courier, or on the fourth business day after mailing by
certified or registered mail, postage prepaid, addressed as set forth below, or
to such other address as a party hereto may designate by a notice to the other
parties. Any notice mailed, sent by facsimile transmission, or given to the
Escrow Agent shall be deemed given only when received.
<PAGE>
Purchaser: CMD Realty Investment Fund II, L.P.
c/o CMD Realty Investments, Inc.
800 West Cypress Creek Road
Fort Lauderdale, Florida 33309-2046
Attention: Paul Kilgallon
(954) 776-6099 (FAX)
Seller: Roclab-C Investors
c/o The Balcor Company
Bannockburn Lake Office Plaza
Suite A200
2355 Waukegan Road
Bannockburn, Illinois 60015
Attention:
James Mendelson
Fax: (847) 317-4462
Escrow Agent: Charter Title Company
4655 Sweetwater Blvd.
Suite 200
Sugar Land, Texas 77479
Attention:
Frances A. Chetta
Fax: (713) 242-1144
10. The Escrow Agent hereby consents and agrees to all of the provisions
hereof, and agrees to accept, as Escrow Agent hereunder, all cash deposited
hereunder, and agrees to hold and dispose of said cash deposited hereunder in
accordance with the terms and provisions hereof.
11. This Escrow Agreement and all of the provisions hereof shall be binding
upon and shall inure to the benefit of the parties hereto and their respective
legal representatives, successors and assigns.
12. This Escrow Agreement may be executed in one or more counterparts, each of
which shall be deemed an original, but all of which shall constitute one and
the same instrument.
[Signature Page Follows]
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this instrument to be duly
executed the day and year first above written.
SELLER:
ROCLAB-C INVESTORS, an Illinois limited partnership
By: Balcor Equity Partners-I, an Illinois general partnership,
its general partner
By: The Balcor Company, a Delaware corporation, general
partner
By: /s/John K. Powell
-----------------------------
Name: John K. Powell, Jr.
-----------------------------
Its: Senior Vice President
-----------------------------
PURCHASER:
CMD REALTY INVESTMENT FUND II, L.P.
By: CMD REIM II, Inc., its general partner
By: /s/Randal J. Selig
-----------------------
Name: Randal J. Selig
-----------------------
Its: Vice President
-----------------------
ESCROW AGENT:
CHARTER TITLE COMPANY
By
-------------------------------
Name:
-----------------------
Its: Authorized Agent
<PAGE>
FIRST AMENDMENT TO ESCROW AGREEMENT
THIS FIRST AMENDMENT TO ESCROW AGREEMENT is made and entered into on this
6th day of December, 1996, by and among Roclab-C Investors ("Seller"), CMD
Realty Investment Fund II, L.P. ("Purchaser") and Charter Title Company
("Escrow Agent").
RECITALS
A. Seller and Purchaser have entered into that certain Agreement of Sale
dated December 2, 1996 ("Agreement"), providing for the sale by Seller of
property commonly known as Park Center in Maitland, Florida ("Property").
Terms not defined herein shall have the meanings provided in the Agreement.
B. The parties wish to enter into this First Amendment to Escrow
Agreement to provide an escrow holdback of a certain portion of the Purchase
Price, to be held by Escrow Agent and disbursed in accordance with the terms
hereof.
NOW, THEREFORE, the parties hereto agree as follows:
1. On the Closing Date, out of the net proceeds of sale, Purchaser and
Seller shall deposit with Escrow Agent the sum of $200,000 ("Indemnity
Deposit"). The Indemnity Deposit may be invested by Escrow Agent in a Fidelity
Money Market Account or such other investment as may be acceptable to Seller
and Purchaser. All earnings on the Indemnity Deposit shall be deemed a part of
the Indemnity Deposit.
2. Upon receipt by Purchaser of written acknowledgment from Orix
irrevocably and unconditionally waiving the Orix Claim and if Purchaser has no
outstanding claims under the Indemnity Agreement (the "Indemnity Agreement") of
even date herewith between Seller and Purchaser (collectively, the "Orix
Condition"), Purchaser shall promptly provide written notice to Escrow Agent
that the Orix Condition has been satisfied. If Escrow Agent receives such
notice from Purchaser prior to June 6, 1997, the Indemnity Deposit shall be
disbursed to Seller pursuant to the wire transfer instructions shown on
Exhibit A hereto on June 6, 1997 without notice to or consent from Purchaser,
unless Purchaser has made a claim against Seller in accordance with Paragraph
17.10 of the Agreement and so notifies Escrow Agent of such claim in writing on
or before 5:00 p.m. Central Time on June 5, 1997. If Escrow Agent receives
timely written notice of a claim by Purchaser as provided in the immediately
preceding sentence or under the Indemnity Agreement, Escrow Agent shall notify
Seller by telephone and in writing at the address provided in the Escrow
Agreement, with a copy of such notice to Seller's attorney as shown in the
Escrow Agreement. Seller shall, within 10 days after receipt of such notice,
either authorize Escrow Agent in writing (with a copy of such authorization
being sent to Purchaser) to disburse the amount stated in Purchaser's claim, or
provide a written objection to Purchaser and Escrow Agent stating why Purchaser
may not draw the amount stated in its claim. If Seller fails to provide such
notice within such 10-day period, Escrow Agent shall continue to hold the
Indemnity Deposit until receipt of further written instructions jointly
provided by Seller and Purchaser. If the Orix Condition is satisfied after
June 5, 1997, and Purchaser has not notified Escrow Agent of a claim against
Seller in accordance with Paragraph 17.10 of the Agreement on or before 5:00
p.m. Central Time on June 4, 1997, then the Indemnity Deposit shall be
disbursed to Seller immediately upon Escrow Agent's receipt from Purchaser of
written notice that the Orix Condition has been satisfied.
<PAGE>
3. Escrow Agent is hereby expressly authorized to disregard in its sole
discretion any and all conflicting notices or warnings given by any of the
parties hereto or by any other person or corporation. Escrow Agent is hereby
expressly authorized to regard and to comply with and obey any and all orders,
judgments or decrees entered or issued by any court with jurisdiction over the
subject matter hereof, and in case Escrow Agent obeys or complies with any such
order, judgment or decree of any court it shall not be liable to any of the
parties hereto or any other person, firm or corporation by reason of such
compliance.
4. Except as amended hereby, the terms of the Escrow Agreement shall
remain unchanged and in full force and effect.
5. Any notices required hereunder may be sent by facsimile and shall be
effective upon receipt of electronic confirmation.
6. This First Amendment to Escrow Agreement may be executed in one or
more counterparts, each of which shall be deemed an original, but all of which
shall constitute one and the same instrument.
7. If either party institutes a legal action against the other relating
to this Agreement or any default hereunder, the unsuccessful party to such
action will reimburse the successful party for the reasonable expenses of
prosecuting or defending such action, including without limitation, attorneys
fees and disbursements and court costs.
[Signature Page Follows]
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this instrument to be
duly executed the day and year first above written.
SELLER:
ROCLAB-C INVESTORS, an Illinois limited partnership
By: Balcor Equity Partners-I, an Illinois general partnership, its general
partner
By: The Balcor Company, a Delaware corporation, general partner
By: /s/James E. Mendelson
----------------------------
Name: James E. Mendelson
----------------------------
Its: Senior Vice President
----------------------------
PURCHASER:
CMD REALTY INVESTMENT FUND II, L.P.
By: CMD REIM II, Inc., its general partner
By: /s/Randal J. Selig
--------------------------------
Name: Randal J. Selig
--------------------------------
Its: Vice President
--------------------------------
ESCROW AGENT:
CHARTER TITLE COMPANY
By:
---------------------------
Name:
---------------------------
Its: Authorized Agent
<PAGE>
FIRST AMENDMENT TO AGREEMENT OF SALE
THIS FIRST AMENDMENT TO AGREEMENT OF SALE (this "Amendment"), is entered
into as of the 8th day of November, 1996, by and between Transwestern
Investment Company, L.L.C., ("Purchaser"), and Pacific Center Investors, a
joint venture ("Seller").
WITNESSETH:
A. Purchaser and Seller have heretofore entered into a certain Agreement
of Sale dated October 10, 1996 ("Agreement") for the purchase and sale of the
property commonly known as Pacific Center I and Pacific Center II, located in
Dallas, Texas.
B. Purchaser and Seller now desire to amend the Agreement to change the
Closing Date and extend the Inspection Period (as those terms are defined in
the Agreement).
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree
as follows:
1. The Closing Date, as defined in Paragraph 8 of the Agreement, is
hereby changed to December 16, 1996.
2. The expiration of the Insepction Period (as defined in Paragraph 7.1
of the Agreement) is hereby extended to 2:00 p.m. Chicago time on November 15,
1996.
3. Except as specifically modified herein, the terms and conditions of
the Agreement shall remain unchanged and in full force and effect.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of
the date first set forth above.
PURCHASER:
TRANSWESTERN INVESTMENT COMPANY, L.L.C.
By: /s/ Stephen R. Quazzo
--------------------------------------
Name: Stephen R. Quazzo
--------------------------------------
Its: Managing Director
--------------------------------------
SELLER:
PACIFIC CENTER INVESTORS, a joint venture
By: Labroc I Limited Partnership, an Illinois
limited partnership
By: Balcor Equity Partners-I, an Illinois
general partnership, its general partner
By: The Balcor Company, a Delaware
corporation, a partner
By: /s/ James E. Mendelson
-------------------------------
Name: James E. Mendelson
-------------------------------
Its: Authorized Representative
-------------------------------
By: Labroc II Limited Partnership, an Illinois
limited partnership
By: Balcor Equity Partners-II, an Illinois
general partnership, its general partner
By: The Balcor Company, a Delaware
corporation, a partner
By: /s/ James E. Mendelson
--------------------------------
Name: James E. Mendelson
--------------------------------
Its: Authorized Representative
--------------------------------
<PAGE>
SECOND AMENDMENT TO AGREEMENT OF SALE
THIS SECOND AMENDMENT TO AGREEMENT OF SALE (this "Amendment"), is entered
into as of the 15th day of November, 1996, by and between Transwestern
Investment Company, L.L.C., ("Purchaser"), and Pacific Center Investors, a
joint venture ("Seller").
WITNESSETH:
A. Purchaser and Seller have heretofore entered into a certain Agreement
of Sale dated October 10, 1996 as amended by a First Amendment thereto dated
November 8, 1996 ("Agreement") for the purchase and sale of the property
commonly known as Pacific Center I and Pacific Center II, located in Dallas,
Texas.
B. Purchaser and Seller now desire to amend the Agreement as provided
herein.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree
as follows:
1. The Purchase Price as defined in Paragraph 1 of the Agreement, is
hereby changed to $15,950,000.
2. Notwithstanding anything in Paragraph 15 of the Agreement to the
contrary, in the event that the final real estate tax bill for 1996 is not
available at closing, Purchaser and Seller agree to reprorate real estate taxes
based on the actual tax bill for 1996 within 10 days after the final bill for
1996 has been issued and made available to the parties.
3. Except as specifically modified herein, the terms and conditions of
the Agreement shall remain unchanged and in full force and effect.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of
the date first set forth above.
PURCHASER:
TRANSWESTERN INVESTMENT COMPANY, L.L.C.
By: /s/ Stephen R. Quazzo
--------------------------------------
Name: Stephen R. Quazzo
--------------------------------------
Its: Managing Director
--------------------------------------
SELLER:
PACIFIC CENTER INVESTORS, a joint venture
By: Labroc I Limited Partnership, an Illinois
limited partnership
By: Balcor Equity Partners-I, an Illinois
general partnership, its general partner
By: The Balcor Company, a Delaware
corporation, a partner
By: /s/ James E. Mendelson
------------------------------------
Name: James E. Mendelson
------------------------------------
Its: Authorized Representative
------------------------------------
By: Labroc II Limited Partnership, an Illinois
limited partnership
By: Balcor Equity Partners-II, an Illinois
general partnership, its general partner
By: The Balcor Company, a Delaware
corporation, a partner
By: /s/ James E. Mendelson
--------------------------------
Name: James E. Mendelson
--------------------------------
Its: Managing Representative
--------------------------------
