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) October 18, 1996
BALCOR REALTY INVESTORS - 84
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Exact Name of Registrant
Illinois 0-13349
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State or other jurisdiction Commission file number
2355 Waukegan Road
Suite A200
Bannockburn, Illinois 36-3215399
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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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a) Chesapeake Apartments
In 1983, Chesapeake Apartments, Harris County, Texas, was acquired by a joint
venture consisting of the Partnership and the seller of the property. Pursuant
to an agreement between the Partnership and the seller, the Partnership
received an assignment of the seller's interest in the joint venture in 1989.
The Partnership contributed approximately $2,656,000 from its offering proceeds
towards the purchase of the property. The property was purchased subject to a
$8,775,000 first mortgage loan funded through the sale of revenue bonds. In
1991, the Partnership obtained the release of $8,530,000 pledged in 1990 as
collateral for the bonds and used these funds to purchase the bonds. In 1993,
the Partnership obtained a new $5,185,000 first mortgage loan from an
unaffiliated party to replace the bonds.
On October 18, 1996, the Partnership contracted to sell the property for a sale
price of $7,950,000 to an unaffiliated party, AIMCO Properties, L.P., a
Delaware limited partnership. The purchaser has deposited $200,000 into an
escrow account as earnest money. The remainder of the sale price will be
payable in cash at closing. The purchaser is expected to assume the existing
first mortgage loan and the closing of the sale is subject to the receipt of
the lender's consent to the assumption of the loan. The closing is scheduled
to occur 10 business days after receipt of the lender's consent and it is
expected that the closing will occur on or about November 25, 1996. The loan
is expected to have an outstanding balance of approximately $5,079,000 at
closing. From the proceeds of the sale, the Partnership will pay $159,000 to
an unaffiliated party as a brokerage commission and up to $79,500 to an
affiliate of the third party providing property management services for the
property as a fee for services rendered in connection with the sale of the
property. The Partnership will receive the remaining proceeds of approximately
$2,633,000, less closing costs.
Affiliates of the General Partner have previously sold or have contracted to
sell other assets to the purchaser.
The closing is subject to the satisfaction of numerous terms and conditions,
including receipt of the lender's consent. There can be no assurance that all
of the terms and conditions will be complied with and, therefore, it is
possible the sale of the property may not occur.
b) Quail Lakes Apartments
In 1983, the Partnership acquired the Quail Lakes Apartments, Oklahoma City,
Oklahoma, utilizing approximately $4,379,820 in offering proceeds. The
property was acquired subject to first mortgage financing of approximately
$10,247,000.
On October 21, 1996, the Partnership contracted to sell the property for a sale
price of $10,500,000 to an unaffiliated party, NCH Corporation, an Arizona
corporation. The purchaser has deposited $250,000 into an escrow account as
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earnest money and will pay the remaining $10,250,000 at closing, which is
scheduled to occur no later than December 2, 1996. From the proceeds of the
sale, the Partnership will pay to an unaffiliated party a brokerage commission
of $210,000 and to the holder of the first mortgage loan the outstanding
balance of the loan, expected to be approximately $6,672,500 at closing.
Additionally, pursuant to a loan modification in 1986, the lender will receive
an equity participation equal to 50% of the net sale proceeds, estimated to be
approximately $1,756,250. An affiliate of the third party providing property
management services for the property will receive a fee of up to $105,000 for
services rendered in connection with the sale. The Partnership will receive
the remaining proceeds of approximately $1,756,250. Neither the General
Partner nor any affiliate will receive a brokerage commission in connection
with the sale of the property. The General Partner will be reimbursed by the
Partnership for its actual expenses incurred in connection with the sale.
The closing is subject to the satisfaction of numerous terms and conditions.
There can be no assurance that all of the terms and conditions will be complied
with and, therefore, it is possible the sale of the property may not occur.
Item 5. Other Information
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a) Chestnut Ridge Apartments, Phase II
As previously reported, on September 6, 1996, the Partnership contracted to
sell Chestnut Ridge Apartments, Phase II, Fort Worth, Texas (the "Property"),
to an unaffiliated party, TGM Realty Corp. #5, a Delaware corporation, for a
sale price of $4,703,500. In addition, an affiliate of the General Partner (the
"Affiliate") contracted to sell Chestnut Ridge Apartments, Phase I ("Phase I"),
located adjacent to the Property, to the purchaser. The sale closed on
September 30, 1996. The sale of Phase I also closed on September 30, 1996.
Pursuant to a letter agreement among the Partnership, Affiliate and purchaser,
the purchaser requested the City of Fort Worth to inspect the Property and
Phase I and to issue new certificates of occupancy. As a result of the
inspection, the purchaser received a $6,900 reduction of the purchase price of
the Property to reimburse the purchaser for the costs of certain repairs. From
the proceeds of the sale, the Partnership paid the outstanding balance of the
first mortgage loan of $3,073,783, a prepayment penalty of $153,689, $93,932 to
an unaffiliated party as a brokerage commission, $46,966 to an affiliate of the
third party providing property management services for the Property for
services rendered in connection with the sale of the Property and $24,515 in
closing costs. The Partnership received the remaining $1,303,715 of sale
proceeds.
b) Courtyards of Kendall Apartments
In 1984, the Partnership acquired the Courtyards of Kendall Apartments, Dade
County, Florida, utilizing approximately $6,313,320 in offering proceeds. The
property was acquired subject to first mortgage financing of approximately
$8,691,260. Pursuant to a 1988 refinancing, the outstanding loan balance was
increased to approximately $10,235,000. The Partnership received excess
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proceeds of approximately $1,241,000. In 1992, the new mortgage loan was
modified, and the Partnership made a principal payment of approximately
$440,000.
On October 24, 1996, the Partnership contracted to sell the property for a sale
price of $11,310,000 to an unaffiliated party, Ceebraid-Signal Corporation, a
Florida corporation. The purchaser has deposited $150,000 into an escrow
account as earnest money and will pay the remaining $11,160,000 at closing,
which is scheduled for December 16, 1996. From the proceeds of the sale, the
Partnership will repay the first mortgage loan which is expected to have an
outstanding balance at closing of approximately $8,824,000. As a part of the
loan modification described above, the lender is also entitled to receive upon
the sale an additional amount equal to 25% of that portion of the value of the
property agreed upon by the lender and the Partnership which exceeds
$10,100,000. The amount to be paid to the lender under this provision is
estimated to be up to $600,000. The Partnership will pay $226,200 to a third
party as a brokerage commission and will receive the remaining proceeds of
approximately $1,660,000, less closing costs. Neither the General Partner nor
any affiliate will receive a brokerage commission in connection with the sale
of the property. The General Partner will be reimbursed by the Partnership for
its actual expenses incurred in connection with the sale.
An affiliate of the General Partner has sold or contracted to sell two other
properties to the purchaser.
The closing is subject to the satisfaction of numerous terms and conditions.
There can be no assurance that all of the terms and conditions will be complied
with and, therefore, it is possible the sale of the property may not occur.
<PAGE>
ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS
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(A) FINANCIAL STATEMENTS AND EXHIBITS:
None
(B) PRO FORMA FINANCIAL INFORMATION:
None
(C) EXHIBITS:
(2) (a) (i) Agreement of Sale and attachments thereto relating to
the sale of the Chesapeake Apartments, Harris County,
Texas.
(ii) First Amendment to Agreement of Sale relating to the
sale of the Chesapeake Apartments, Harris County,
Texas.
(b) Agreement of Sale and attachments thereto relating to the
sale of the Quail Lakes Apartments, Oklahoma City, Oklahoma.
(99) (a) Letter agreement relating to the sale of Chestnut Ridge
Apartments, Phase II, Fort Worth, Texas.
(b) Agreement of Sale and attachments thereto relating to the
sale of the Courtyards of Kendall Apartments, Dade County,
Florida.
No information is required under Items 1, 3, 4, 6 and 8 and these items
have, therefore, been omitted.
<PAGE>
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 REALTY INVESTORS-84
By: Balcor Partners-XV, an IllinoiS general
partnership, its general partner
By: RGF-Balcor Associates-II, an Illinois general
partnership, a partner
By: The Balcor Company, a Delaware corporation,
a partner
By: /s/ Jerry M. Ogle
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Jerry M. Ogle, Vice President
and Secretary
Dated: November 4, 1996
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AGREEMENT OF SALE
THIS AGREEMENT OF SALE (this "Agreement"), is entered into as of the 18th
day of October, 1996 (the "Execution Date"), by and between AIMCO PROPERTIES,
L.P., a Delaware limited partnership ("Purchaser"), and CHESAPEAKE ASSOCIATES,
an Illinois limited partnership ("Seller"). All capitalized terms used and
otherwise defined in the text hereof shall have the meaning ascribed thereto in
Paragraph 28 hereof.
RECITALS
A. Purchaser is the owner of a fee simple interest in that certain real
property located at 8727 Point Park Drive, Houston, Texas, 77095 more
particularly described on Exhibit A attached hereto and made a part hereof (the
"Land"). The Land, together with the Improvements, the balance of the Real
Property, the Personal Property, and the Intangible Property, shall be
collectively referred to herein as the "Property."
B. Seller desires to sell, transfer, convey, and assign the Property to
Purchaser, and Purchaser desires to purchase the Property from Seller, upon and
subject to the terms and conditions set forth in this Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual covenants contained in the
Agreement and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Purchaser and Seller hereby agree
as follows:
1. PURCHASE AND SALE. Upon and subject to all of the terms and conditions of
this Agreement, Purchaser agrees to purchase from Seller and Seller agrees to
sell to Purchaser at the price of Seven Million Nine Hundred Fifty Thousand And
No/100 Dollars ($7,950,000.00) (the "Purchase Price"), subject to adjustments
as hereinafter provided, the Property.
2. PURCHASE PRICE. The Purchase Price shall be paid by Purchaser as follows:
2.1. On or before the date that is three (3) Business Days following the
Execution Date, the sum of Two Hundred Thousand and No/100 Dollars
($200,000.00) (the "Earnest Money") to be held in Escrow by and in accordance
with the provisions of the Escrow Agreement (the "Escrow Agreement") attached
hereto as Exhibit B;
2.2. At the "Closing" (as hereinafter defined), subject to the terms of
Paragraph 20 herein, the assumption by Purchaser of Seller's obligations under
the "Loan Documents" (as hereinafter defined), being an amount equal to the
outstanding principal balance of and all accrued unpaid interest on the "Note"
(as hereinafter defined) as of the "Closing Date" (as hereinafter defined); and
2.3. At the Closing, the balance of the Purchase Price, adjusted for
prorations and Closing costs as hereinafter provided, by federally wired
"immediately available" funds, on or before 11:00 a.m. Chicago time.
<PAGE>
3. TITLE COMMITMENT AND SURVEY.
3.1. Delivery. Seller has previously delivered to Purchaser a title
commitment for an owner's standard title insurance policy issued by Charter
Title Company, as agents for Lawyers Title Insurance Corporation dated August
30, 1996 (hereinafter referred to as "Charter") for the Property. At
Purchaser's sole cost and expense, Purchaser shall obtain a new title
commitment, a copy of which is attached hereto as Exhibit C (the "Title
Commitment"), together with copies of all documents, if any, referenced as
exceptions therein (the "Underlying Documents") issued by Stewart Title
Guaranty Company (hereinafter referred to as "Title Insurer") and shall pay any
costs or penalties associated with Seller's cancellation of Seller's policy
with Charter. In addition, Seller has provided Purchaser with an existing
survey or plat map for the Property (the "Existing Survey"). Purchaser may
obtain, at its sole cost and expense, an update of the Existing Survey for the
Property or a new survey of the Property (either of which shall hereinafter be
referred to as the "Updated Survey". For purposes of this Agreement,
"Permitted Exceptions" shall mean: (a) the general printed exceptions contained
in the standard title policy to be issued by Title Insurer based on the Title
Commitment; (b) general real estate taxes, association assessments, special
assessments, special district taxes, and related charges not yet due and
payable; (c) matters caused by the actions of Purchaser; (d) matters relating
to the liens and security interests granted to secure the loan evidenced by the
Note; and (e) Disapproved Title Exceptions which are waived by Purchaser
pursuant to Paragraph 3.2 below and Minor Unpermitted Exceptions and
Unpermitted Exceptions waived by Purchaser pursuant to Paragraph 3.3 below.
All other exceptions to title shall be referred to as "Unpermitted Exceptions".
3.2. Approval. If the Title Commitment or the Updated Survey discloses
any exceptions to title which are unacceptable to Purchaser (other than those
matters set forth in Paragraph 3.1 (a) through (d) inclusive), Purchaser may
give written notice to Seller (the "Title Notice") of Purchaser's disapproval
of any such exceptions (a "Disapproved Title Exception") on or before 5:00 p.m.
Chicago time on October 21, 1996 (the "Title Approval Period"). Any title
exceptions which are set forth in the Title Commitment or on the Updated Survey
to which Purchaser does not object in accordance with the immediately preceding
sentence shall be deemed additional Permitted Exceptions. With regard to a
Disapproved Title Exception for which Purchaser gives Seller a Title Notice,
Seller may but shall not have the obligation to notify Purchaser within five
(5) Business Days of receipt of the Title Notice whether Seller shall bond
over, cure, or cause the Title Insurer to remove such Disapproved Title
Exception. Any such Disapproved Title Exception which Seller elects to bond
over, cure, or cause the Title Insurer to remove (in each case to the
reasonable satisfaction of Purchaser) shall be so bonded over, cured, or
removed by Seller prior to Closing. If Seller fails to comply with the
preceding sentence with respect to an obligation to pay money, and if such
exception can be cured or removed by the payment of money, then Purchaser shall
have the right to discharge such obligation to pay money and deduct said amount
from the Purchase Price. If Seller does not so notify Purchaser, with respect
to any Disapproved Title Exception from the Title Commitment, Purchaser may
either waive its objection and proceed towards closing or terminate this
Agreement by giving written notice to Purchaser of its election within five (5)
additional Business Days. If Purchaser does not give such written notice
<PAGE>
within such five (5) additional Business Days: (i) Purchaser shall have waived
its right to terminate this Agreement pursuant to this Paragraph 3.2; (ii) such
Disapproved Title Exception shall be deemed an additional Permitted Exception;
and (iii) the parties shall proceed to Closing. If Purchaser terminates this
Agreement by written notice to Seller within such five (5) additional Business
Days: (i) Purchaser shall promptly deliver to Seller copies of all third-party
studies, reports, and other investigations obtained by Purchaser in connection
with its due diligence of the Property; (ii) the Earnest Money deposited by
Purchaser shall be immediately paid to Purchaser, together with any and all
interest earned thereon; and (iii) this Agreement shall be null and void,
leaving neither Purchaser nor Seller any right, obligation, or liability under
this Agreement, except as expressly set forth herein.
3.3. Date-Downs. If, after the expiration of the Title Approval Period
but prior to Closing, a date-down to the Title Commitment discloses any
exception not described in Paragraph 3.1(a) through (e) above, Seller shall
have thirty (30) days from the date of the date-down, at Seller's expense: to
(i) bond over, cure, and/or have any Unpermitted Exceptions which, in the
aggregate, do not exceed $15,000.00 (a "Minor Unpermitted Exception"), removed
from the Title Commitment or to have the Title Insurer commit to insure against
loss or damage that may be occasioned by such Minor Unpermitted Exceptions (in
each case to the reasonable satisfaction of Purchaser); or (ii) have the right,
but not the obligation, to bond over, cure, and/or have any Unpermitted
Exceptions which, in the aggregate, equal or exceed $15,000.00, removed from
the Title Commitment or to have the Title Insurer commit to insure against loss
or damage that may be occasioned by such Unpermitted Exceptions (in each case
to the reasonable satisfaction of Purchaser). In such event, the time of
Closing shall be delayed, if necessary, to give effect to said aforementioned
time periods. If Seller elects not to exercise its rights under (ii) in the
preceding sentence, Purchaser may terminate this Agreement upon notice to
Seller within five (5) Business Days after the expiration of said thirty (30)
day period, in which event the Earnest Money, together with all interest
thereon, shall be returned to Purchaser and this Agreement shall be null and
void, leaving neither Purchaser nor Seller any right or obligation under this
Agreement, except as expressly set forth herein; provided, however, and
notwithstanding anything contained herein to the contrary, if the Unpermitted
Exception which gives rise to Purchaser's right to terminate was recorded
against the Property as a result of the affirmative, willful action of Seller
(and not by any unrelated third party) or if Seller is able to bond over, cure,
or remove a Minor Unpermitted Exception for a cost not to exceed $15,000.00 the
Title Insurer is willing to insure over a Minor Unpermitted Exception for a
cost not to exceed $15,000.00 in accordance with the terms hereof and Seller
fails to expend said funds in either case, then Purchaser shall be entitled to
exercise any and all rights and remedies contained in Paragraph 11 herein.
Absent notice from Purchaser to Seller in accordance with the preceding
sentence, Purchaser shall be deemed to have waived its objection to said
Unpermitted Exception.
3.4. Title Policy. On the Closing Date, Title Insurer shall deliver to
Purchaser a standard title policy in conformance with the previously delivered
Title Commitment, subject only to Permitted Exceptions (including, without
limitation, Disapproved Title Exceptions and Unpermitted Exceptions waived by
Purchaser) (the "Title Policy"). Purchaser and Seller shall each pay for
one-half of the costs of the Title Commitment and Title Policy, except that
Purchaser shall pay for the cost of any endorsements to, or extended coverage
on, the Title Policy (other than endorsements obtained by Seller in order to
<PAGE>
cure or insure over a Disapproved Title Exception or an Unpermitted Exception,
the cost of which shall be paid by Seller).
3.5. Costs. The obligation of Purchaser and Seller to pay various costs
set forth in Paragraphs 3.1 and 3.4 shall survive the Closing or earlier
termination of this Agreement, respectively.
4. PAYMENT OF CLOSING COSTS.
4.1. In addition to the costs set forth in Sections 3.1 and 3.4,
Purchaser and Seller shall each pay for one-half of 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 and all other charges of the Title Insurer in connection with this
transaction.
4.2. Seller and Purchaser shall each pay one-half (1/2) of all closing and
escrow fees of the "Escrow Agent" (as such term is defined in that certain
Escrow Agreement by and between Purchaser and Seller dated as of the date
hereof). The obligation of Purchaser and Seller to pay various costs set forth
in Paragraphs 4.1 and 4.2 shall survive the Closing or earlier termination of
this Agreement, respectively.
5. DEED.
Seller agrees to convey fee simple title to the Real Property to Purchaser
by special warranty deed (the "Deed") in recordable form subject only to the
Permitted Exceptions (including, without limitation, Disapproved Title
Exception and Unpermitted Exceptions waived by Purchaser).
6. CONDEMNATION, EMINENT DOMAIN, DAMAGE AND CASUALTY.
6.1. Except as provided in the indemnity provisions contained in
Paragraph 7.1 of this Agreement, Seller shall bear all risk of loss with
respect to the Property up to the 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 $100,000.00 (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 (in
which case the Closing Date shall be extended until completion of such
restoration) or, if Purchaser consents, 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, in which case Seller shall pay to Purchaser at the Closing the amount
equal to Seller's insurance deductible. Seller shall promptly notify Purchaser
in writing of any such fire or other casualty and Seller's determination of the
cost to repair the damage caused thereby. In the event of damage to the
Property by fire or other casualty prior to the Closing Date, repair of which
would cost in excess of $100,000.00 (as determined by Seller in good faith),
then this Agreement may be terminated at the option of Purchaser, which option
shall be exercised, if at all, by Purchaser's written notice thereof to Seller
within five (5) Business Days after Purchaser receives written notice of such
fire or other casualty and Seller's determination of the amount of such
<PAGE>
damages, and upon the exercise of such option by Purchaser this Agreement shall
become null and void, the Earnest Money deposited by Purchaser shall be
returned to Purchaser together with interest thereon, and neither party shall
have any further liability or obligations hereunder. In the event that
Purchaser does not exercise the option set forth in the preceding sentence, the
Closing shall take place on the Closing Date and Seller shall assign and
transfer to Purchaser on the Closing Date all of Seller's right, title, and
interest in and to all insurance proceeds paid or payable to Seller on account
of the fire or casualty and Seller shall pay to Purchaser at the Closing the
amount equal to Seller's insurance deductible.
6.2. If between the date of this Agreement and the Closing Date, any
condemnation or eminent domain proceedings are initiated which result or 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) materially impair access to the Property; (ii) cause any material
non-compliance with any applicable Law, ordinance, rule, or regulation of any
federal, state, or local authority or governmental agencies having jurisdiction
over the Property or any portion thereof; or (iii) materially and adversely
impair the use of the Property as it is currently being operated, in each case,
as reasonably determined by Purchaser (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 this Agreement shall become null
and void and neither Purchaser nor Seller shall have any further rights or
obligations under this Agreement, except as expressly set forth herein; or
6.2.2. proceed with the Closing, in which event Seller shall assign
to Purchaser all of Seller's right, title, and interest in and to any award
made in connection with such condemnation or eminent domain proceedings.
6.3. Purchaser shall 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 exercise its rights under 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. Seller has provided Purchaser and the agents, engineers, employees,
contractors, and surveyors retained by Purchaser with full and free access to
the Property to inspect the Property, including a review of leases located at
the Property and to conduct and prepare such studies, tests, and surveys as
Purchaser deemed reasonably necessary or appropriate, including, without
<PAGE>
limitation, one or more environmental assessments of the Property
(collectively, the "Environmental Assessments"). Seller shall continue to
provide Purchaser free access to the Property until October 28, 1996 (the
"Inspection Period") for the purpose of obtaining a Phase I environmental
report of the Property. The Environmental Assessments may include any
investigations that Purchaser reasonably finds necessary for assessing the
environmental condition of, and any potential environmental liabilities
associated with, the Property. In addition, Purchaser may, at its own expense,
cause a search for filings pursuant to the Uniform Commercial Code with respect
to the Personal Property (the "UCC Search") to be performed.
In connection with Purchaser's review of the Property, Seller has
delivered to Purchaser copies of the most recent available tax bills, rent
rolls, insurance premiums, the "Service Contracts" (as hereinafter defined),
utility account numbers, and the 1993, 1994, and 1995 Annual Reports with
respect to the Property (collectively, the "Property Documents"). Until the
Closing or earlier termination of this Agreement, Seller shall continue to
allow Purchaser and its Representatives the opportunity to review such other
Contracts, books, records, and other documents and data, including tax returns
(but excluding reports to Seller's Portfolio and Asset Review Committee and
appraisals) as Purchaser reasonably requests. Purchaser and its
Representatives have and shall continue to have the opportunity to make copies
of such Contracts, books and records, tax returns, and other documents and data
(other than computer software, reports to Seller's Portfolio and Asset Review
Committee and appraisals) as they deem advisable. Purchaser acknowledges that
other than Purchaser's right to approve the Title Commitment and Updated Survey
pursuant to Section 3.2 of this Agreement, the Environmental Assessment, the
UCC Search, and the "Property Questionnaire" (as hereinafter defined),
Purchaser has completed its due diligence review of the Property.
All of the foregoing tests, investigations, studies, and Environmental
Assessments to be conducted by Purchaser pursuant to this Paragraph 7 shall be
at Purchaser's sole cost and expense and Purchaser shall restore the Property
to the condition existing prior to the performance of such tests,
investigations, studies and Environmental Assessments. Purchaser agrees to
indemnify, defend, protect, and hold Seller harmless from any and all loss or
costs, including attorneys' fees, liability or damages which Seller may incur
or suffer as a result of Purchaser conducting its inspection and investigation
of the Property (including the entry of Purchaser, its employees, or agents and
its lender onto the Property), including without limitation, liability for
mechanics' lien claims, but excluding losses, costs, liabilities, and damages
arising from pre-existing conditions.
During the Inspection Period, Purchaser shall maintain public liability
insurance insuring the person, firm, or entity performing any tests, studies,
and investigations.
If: (i) the Environmental Assessments show the existence of any Hazardous
Materials at the Property; or (ii) if the UCC Searches disclose any liens on
the Personal Property other than liens in connection with the "First Mortgage
Loan" (as hereinafter defined), 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 such written notice
is not delivered to Seller on or before the expiration of the Inspection
<PAGE>
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 delivered to Seller on or before the expiration of the
Inspection Period, then: (i) Purchaser shall promptly deliver to Seller copies
of all studies, reports, and other investigations obtained by Purchaser in
connection with its due diligence during the Inspection Period; (ii) the
Earnest Money deposited by Purchaser shall be immediately paid to Purchaser,
together with any and all interest earned thereon; and (iii) this Agreement
shall be null and void, and neither Purchaser nor Seller shall have any further
right, obligation, or liability under this Agreement, except as expressly set
forth in this Agreement. Notwithstanding anything contained herein to the
contrary, the terms of this Paragraph 7.1 shall survive the Closing and the
delivery of the Deed or earlier termination of this Agreement.
7.2. To Seller's knowledge, Seller has provided to Purchaser a complete
copy of the Phase I Environmental Site Assessment of Chesapeake Apartments,
dated April 11, 1996 (the "Existing Report"). Seller makes no representation
or warranty concerning the accuracy of the Existing Report. Subject to the
completeness of the Existing Report, Purchaser hereby releases Seller and the
Affiliates of Seller from any liability with respect to the Existing Report,
including, without limitation, the matters set forth in the Existing Report,
and the accuracy of the Existing Report. Furthermore, Purchaser acknowledges
that it will be purchasing the Property with all faults disclosed in the
Existing Report. Notwithstanding anything contained herein to the contrary,
the terms of this Paragraph 7.2 shall survive the Closing and the delivery of
the Deeds and termination of this Agreement.
8. CLOSING; CONDITIONS PRECEDENT
8.1. The closing of this transaction (the "Closing") shall be on the date
(the "Closing Date") ten (10) Business Days following the delivery of the
"Lender Consent" (as hereinafter defined). Unless otherwise mutually agreed to
in writing by the parties, this transaction shall be closed through an escrow
with Title Insurer, in accordance with the general provisions of the usual and
customary form of deed and money escrow for similar transactions in Texas or,
at the option of either party, the Closing shall be a "New York style" closing
at which the Purchaser shall wire the Purchase Price to Title Insurer on the
Closing Date and prior to the release of the Purchase Price to Seller,
Purchaser shall receive the Title Policy or marked up commitment dated the date
of the Closing Date. In the event of a New York style closing, Seller shall
deliver to Title Insurer any customary affidavit in connection with a New York
style closing. All closing and escrow fees shall be divided equally between
the parties hereto.
8.2. The obligation of Purchaser to purchase the Property in accordance
with this Agreement is subject to the following conditions precedent and, with
respect to deliveries to be made at the Closing, conditions concurrent
(collectively, "Purchaser's Closing Conditions"), which conditions may be
waived, or the time for satisfaction thereof extended, by Purchaser only in a
writing executed by Purchaser (provided, however, that any such waiver shall
not affect Purchaser's ability to pursue any remedy it may have with respect to
any breach hereunder by Seller):
(a) all of the representations and warranties of Seller set forth in
this Agreement shall be true, correct and complete in all material respects as
of the Closing Date; and
<PAGE>
(b) Seller, on or prior to the Closing Date, shall have complied
and/or performed all of the obligations, covenants and agreements required on
the part of Seller to be complied with or performed pursuant to the terms of
this Agreement (including, without limitation, all of Seller's covenants and
obligations pursuant to Section 9.2 hereof).
8.3. Subject to Purchaser's rights under Section 11 hereof with respect to
any default by Seller, if any of the Purchaser's Closing Conditions have not
been fulfilled within the applicable time periods, Purchaser may:
(a) waive the Purchaser's Closing Condition and close in accordance
with this Agreement, without adjustment or abatement of the Purchase Price; or
(b) terminate this Agreement by written notice to Seller and to
Escrow Agent, in which event Escrow Agent shall return the Earnest Money,
together with all interest earned thereon, to Purchaser, this Agreement shall
be null and void and neither Purchaser nor Seller shall have any right,
obligation or liability under this Agreement except as expressly set forth
herein.
9. CLOSING DELIVERIES.
9.1. On or prior to the Closing Date, Seller and Purchaser shall execute
and deliver to one another a joint closing statement. In addition, Purchaser
shall deliver to Seller: (i) the balance of the Purchase Price, net of all
prorations and closing costs as provided herein; (ii) an executed counterpart
of the assignment and assumption documents set forth in Paragraph 9.2.3 and
9.2.4; (iii) evidence of the assumption by Purchaser of Seller's obligations
under the Loan Documents and the release of Seller by the "Lender" (as
hereinafter defined) from all liability in connection with the Loan Documents;
and (iv) such other documents as may be reasonably required by the Title
Insurer in order to consummate the transaction as set forth in this Agreement.
9.2. On or before the Closing Date, Seller shall deliver to Purchaser
executed and, if applicable, acknowledged originals of the following:
9.2.1 the Deed (in the form of Exhibit D attached hereto), subject
only to Permitted Exceptions (including, without limitation, those Unpermitted
Exceptions waived by Purchaser);
9.2.2 a special warranty bill of sale conveying the Personal
Property (in the form of Exhibit E attached hereto);
9.2.3 a counterpart of an assignment and assumption of intangible
property (in the form attached hereto as Exhibit F), conveying the Intangible
Personal Property and the Service Contracts;
9.2.4 a counterpart of an assignment and assumption of Tenant Leases
and security deposits (in the form attached hereto as Exhibit G);
9.2.5 a counterpart of an assignment and assumption by Purchaser of
Seller's obligations under the Loan Documents;
<PAGE>
9.2.6. a non-foreign affidavit (in the form of Exhibit H attached
hereto);
9.2.7 originals (or copies, if originals are not in Seller's
possession) of the Tenant Leases;
9.2.8 all documents and instruments reasonably required by the Title
Insurer to issue the Title Policy including, without limitation, the
Certification and Indemnity Agreement in the form of Exhibit O attached hereto;
9.2.9 possession of the Real Property to Purchaser, subject to the
terms of the Tenant Leases;
9.2.10 evidence of the termination of the current management
agreement; and
9.2.11 notice to the tenants of the Property of the transfer of title
and assumption by Purchaser of the landlord's obligation under the Tenant
Leases and the obligation to refund the security deposits (in the form of
Exhibit I).
<PAGE>
10. PURCHASER'S DEFAULT. 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 THAT THIS SALE IS NOT COMPLETED BECAUSE OF
A DEFAULT OF THE PURCHASER UNDER THE PROVISIONS OF THIS AGREEMENT, SELLER SHALL
RETAIN ALL OF THE EARNEST MONEY AND THE INTEREST THEREON AS SELLER'S SOLE RIGHT
TO DAMAGES OR ANY OTHER REMEDY, EXCEPT FOR PURCHASER'S OBLIGATIONS TO INDEMNIFY
SELLER AND RESTORE THE PROPERTY AS SET FORTH IN PARAGRAPH 7 HEREOF. THE
PARTIES HAVE AGREED THAT SELLER'S ACTUAL DAMAGES, IN THE EVENT OF A DEFAULT BY
PURCHASER, WOULD BE EXTREMELY DIFFICULT OR IMPRACTICAL TO DETERMINE.
THEREFORE, BY PLACING THEIR INITIALS BELOW, THE PARTIES ACKNOWLEDGE THAT THE
EARNEST MONEY HAS BEEN AGREED UPON, AFTER NEGOTIATION, AS THE PARTIES'
REASONABLE ESTIMATE OF SELLER'S DAMAGES.
11. SELLER'S DEFAULT. IF THIS SALE IS NOT COMPLETED BECAUSE OF SELLER'S
DEFAULT, PURCHASER'S SOLE REMEDY SHALL BE ACTUAL DAMAGES NOT TO EXCEED, IN THE
AGGREGATE, $200,000.00, PLUS THE RETURN OF ALL EARNEST MONEY TOGETHER WITH ANY
INTEREST ACCRUED THEREON, AND THIS AGREEMENT SHALL THEN BECOME NULL AND VOID
AND OF NO EFFECT AND THE PARTIES SHALL HAVE NO FURTHER LIABILITY TO EACH OTHER
AT LAW OR IN EQUITY, EXCEPT AS EXPRESSLY SET FORTH HEREIN. NOTWITHSTANDING
ANYTHING CONTAINED HEREIN TO THE CONTRARY, IF SELLER'S DEFAULT IS THE RESULT
OF: (A) ANY WILLFUL ACTION WHICH WAS TAKEN WITH THE INTENT TO IMPEDE, DELAY, OR
PREVENT THE SALE OF THE PROPERTY; OR (B) SELLER'S WILLFUL REFUSAL TO DELIVER
THE CLOSING DOCUMENTS DESCRIBED IN SECTION 9.2 OF THIS AGREEMENT, THEN
PURCHASER WILL BE ENTITLED TO SUE FOR SPECIFIC PERFORMANCE.
12. PRORATIONS.
12.1. Rents (exclusive of delinquent rents, but including prepaid rents);
refundable security deposits (which will be assigned to and assumed by
Purchaser and credited to Purchaser at Closing); water and other utility
charges; fuels; prepaid operating expenses; 1995 (if not paid) and 1996 real
and personal property taxes and assessments; accrued but unpaid interest on the
outstanding indebtedness owed to the Lender and other similar items shall be
adjusted ratably as of 12:01 a.m. on the Closing Date. Assessments payable in
installments which are due subsequent to the Closing Date shall be paid by
Purchaser. In addition, Purchaser shall give Seller a credit at Closing for
all escrows, reserves, and holdbacks held by the Lender under the Loan
Documents, including, without limitation, any real estate tax reserves,
insurance reserves, debt service reserves, and capital replacement reserves,
subject to the provisions of Paragraph 12.2 below. After the Closing, the
Seller shall have no right to proceed in any manner or make any claim against
Tenants occupying the Property from and after Closing for rents that were
delinquent as of the Closing Date. Except as otherwise specified in Paragraph
12.2 below, thirty (30) days after the Closing Date, Seller and Purchaser shall
make a final reconciliation of all Closing prorations.
12.2. All basic rent paid to Purchaser, its Affiliates, or their
Representatives on or after the Closing Date by any Tenant of the Property who
is indebted under a lease for basic rent attributable to any period prior to
the Closing Date shall, after payment therefrom to Purchaser of all current
basic rent from such Tenant, be deemed a "Seller Receipt" until such time as
all such indebtedness is paid in full. Within ten (10) days following each
receipt by Purchaser of a Seller Receipt, Purchaser shall pay such Seller
Receipt to Seller. Purchaser shall use all commercially reasonable efforts to
<PAGE>
collect any amounts which, upon collection, would constitute Seller Receipts
hereunder. Within 120 days after the Closing Date, Purchaser shall deliver to
Seller a reconciliation statement of Seller Receipts through the first 90 days
after the Closing Date. Upon the delivery of the Seller Receipts
reconciliation, Purchaser shall deliver to Seller any Seller Receipts owing to
Seller and not previously delivered to Seller in accordance with the terms
hereof. Seller retains the right to conduct an audit, at reasonable times and
upon reasonable notice, of Purchaser's books and records to verify the accuracy
of the Seller Receipts reconciliation statement and upon the verification of
additional funds owing to Seller, Purchaser shall pay to Seller said additional
Seller Receipts and the cost of performing Seller's audit. This Paragraph 12.2
shall survive the Closing.
13. RECORDING. Neither this Agreement nor a memorandum thereof shall be
recorded and the act of recording by Purchaser shall be an act of default
hereunder by Purchaser and subject to the provisions of Paragraph 10 hereof.
14. ASSIGNMENT. 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. Notwithstanding
the foregoing, Purchaser may assign its interest in this Agreement without the
consent of Seller to any entity affiliated with Purchaser, or the principals of
Purchaser, provided that Purchaser remains liable for, and the assignee assumes
the obligations of Purchaser hereunder. If any assignee of Purchaser under
this Agreement petitions or applies for relief in bankruptcy or such assignee
is adjudicated as a bankrupt or insolvent, or such 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 from any encumbrance
resulting from the Bankruptcy Filing.
15. BROKER. The parties hereto represent and warrant that no broker
commission or finder fee is due and payable in connection with this transaction
other than to Sage Properties (to be paid by Seller). Purchaser and Seller
shall indemnify, defend, and hold the other party hereto harmless from and
against any and all claims (including, without limitation, reasonable
attorney's fees, charges and disbursements, court costs, and costs of appeal)
as a result of anyone claiming by or through the Indemnifying Party any fee,
commission, or compensation on account of this Agreement, its negotiation, or
the sale contemplated hereby other than to Sage Properties. The indemnifying
party shall undertake its obligations set forth in this Paragraph 15 using
attorneys selected by the indemnifying party and reasonably acceptable to the
indemnified party. The provisions of this Paragraph 15 will survive the
Closing and delivery of the Deed.
<PAGE>
16. REPRESENTATIONS AND WARRANTIES OF SELLER.
16.1. Organization and Qualification. Seller is a limited partnership
duly organized, validly existing and in good standing under the Laws of the
State of Illinois; and has the requisite power and authority and all necessary
governmental approvals to own, lease and operate its properties and to carry on
its business as it is now being conducted; and is duly qualified or licensed as
a foreign limited partnership in each jurisdiction where the character of the
properties owned, leased, or operated or the nature of the business conducted
by it makes such qualification or licensing necessary.
16.2. Authority Relative to this Agreement. Subject to the
satisfaction of the conditions set forth in Paragraph 20, Seller has all
necessary power and authority to execute and deliver this Agreement, to perform
its obligations hereunder, and to consummate the transactions contemplated
hereby. The execution and delivery of this Agreement by Seller and the
consummation by Seller of the transactions contemplated hereby have been duly
and validly authorized by all necessary action and no other proceedings are
necessary to authorize this Agreement or to consummate the transactions
contemplated hereby. This Agreement has been duly and validly executed and
delivered by Seller and, assuming the due authorization, execution, and
delivery thereof by the other parties hereto, constitutes the legal, valid, and
binding obligation of Seller, enforceable against Seller in accordance with its
terms, except as enforcement may be limited by bankruptcy, insolvency,
moratorium, or other similar Laws relating to creditors' rights generally and
by equitable principles to which the remedies of specific performance and
injunctive and similar forms of relief are subject.
16.3. Consents and Approvals; No Violation. The execution and
delivery by Seller of this Agreement, the consummation by Seller of the
transactions contemplated hereby and compliance by Seller with the provisions
hereof will not: (a) subject to the satisfaction of the conditions set forth
in Paragraph 20, conflict with, result in a breach of, cause a dissolution or
require the consent or approval of any Person under any provision of the
Organizational Documents of Seller; (b) to Seller's knowledge, require any
consent, approval, authorization or permit of, or filing with or notification
to, any Governmental Authority; (c) subject to the satisfaction of the
conditions set forth in Paragraph 20, and to Seller's knowledge, conflict with,
result in a breach or violation of any of the terms or provisions of, or
constitute a default under, any Contract, or give to any third party any right
of termination, cancellation, amendment or acceleration under any Contract or
result in the creation of a Lien on any assets or properties of Seller; or (d)
subject to the satisfaction of the conditions set forth in Paragraph 20, to
Seller's knowledge, violate or conflict with any judgment, order, writ,
injunction or Law applicable to Seller.
16.4. Financial Statements. Seller has previously delivered to
Purchaser, to Seller's knowledge, true, accurate, and complete copies of the
annual report for Seller for each of the years ended December 31, 1993, 1994,
and 1995 (the "Annual Reports"). Seller makes no representation or warranty
that Purchaser will achieve similar financial results with respect to the
operations of the Property, it being acknowledged by Purchaser that Seller's
operation of the Property and allocations of revenue or expenses may be vastly
different than Purchaser may be able to attain. Purchaser hereby releases
<PAGE>
Seller, the Affiliates of Seller, and their respective Representatives from any
liability with respect to such historical information, except with respect to a
breach of a representation or warranty of Seller contained herein. Each of the
financial statements included in the Annual Reports has been prepared in
accordance with accounting principles consistently applied during the periods
involved, except as otherwise noted therein, and each presents fairly the
financial position of Seller as of its date and the results of its operations
and changes in financial position for the period presented therein, as the case
may be.
16.5. Litigation. To Seller's knowledge after consultation with
Seller's legal counsel, except as set forth on Exhibit N: (a) Seller has
received no notice of any action, suit, or proceeding before any judicial or
quasi-judicial body, by any Governmental Authority or other third party,
pending, or overtly threatened against or affecting Seller or all or any
portion of the Property; (b) there are no actions, suits, or proceedings
pending or overtly threatened in connection with Seller or all or any portion
of the Property; and (c) Seller has not received notice of any attachments,
execution proceedings, assignments for the benefit of creditors, insolvency,
bankruptcy, reorganization, or other proceedings pending against the Seller.
To Seller's knowledge, except as set forth on Exhibit N: (a) there is no Order
to which Seller or the Property is subject; and (b) Seller has not received any
written notice from any Governmental Authority regarding any violation of, or
failure to comply with, any term or requirement of any Order to which the
Seller or the Property is subject.
16.6. Employee Matters. Seller does not have and has never had any
employees. Seller: (i) does not have any liability under any past or present
employee benefit plan that has not been paid or assumed by Seller or an ERISA
Affiliate of Seller; (ii) does not have any liability to any employees of
Seller or any employees of any Affiliate of Seller; and (iii) is not a party to
or bound by any collective bargaining or similar labor Contract.
16.7. The Property. The Property constitutes all of the real,
personal, and intangible property currently used in the conduct of the business
of Seller. Seller has not granted any options or rights of first refusal or
rights of first offer to third parties to purchase or otherwise acquire an
interest in the Property. To Seller's knowledge, the Seller owns the Property
free and clear of all Liens, encumbrances, claims, rights, demands, easements,
leases, agreements, covenants, conditions, and restrictions of any kind, except
for: (i) those shown on the Title Commitment; (ii) the Tenant Leases; (iii) the
Contracts; (iv) the Licenses and Permits; and (v) the Loan Documents. To
Seller's knowledge, there are not presently pending: (i) any special
assessments; or (ii) condemnation actions against the Property or any part
thereof, other than those set forth on the Title Commitment, and Seller has not
received written notice of any contemplated special assessments or eminent
domain proceedings that would affect the Property. To Seller's knowledge,
Seller has provided Purchaser with a copy of all certificates of occupancy for
the Property in Seller's possession. Seller has no knowledge of a violation of
any Law applicable to the Property. Except as expressly set forth herein,
Seller does not make any representations or warranties relating to the
condition of the Property. Purchaser acknowledges and agrees that it will be
purchasing the Property based upon its inspections and investigations of the
Property, and that Purchaser is purchasing the Property "AS IS" and "WITH ALL
<PAGE>
FAULTS", based upon the condition of the Property as of the date of this
Agreement. Without limiting the foregoing, Purchaser acknowledges that, except
as may otherwise be specifically set forth in this Agreement, neither Seller
nor any of 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, including, but not limited to: the condition of the
land or any improvements comprising the Property; the existence or
non-existence of "Hazardous Materials" (as defined hereinafter); economic
projections or market studies concerning the Property; any development rights;
taxes; bonds; covenants; conditions and restrictions affecting the Property;
water or water rights; topography; drainage; soil; subsoil of the Property; the
utilities serving the Property or any zoning or building Laws; or rules or
regulations or Environmental Laws affecting the Property. Seller makes no
representation or warranty that the Property complies with Title III of the
Americans with Disabilities Act or any fire code or building code. Purchaser
hereby releases Seller and its Affiliates from any and all liability in
connection with any claims which Purchaser may have against Seller or the
Affiliates of Seller with respect to the condition of the Property, and
Purchaser hereby agrees not to assert any claims for contribution, cost
recovery or otherwise, against Seller or the Affiliates of Seller, relating
directly or indirectly to the existence of asbestos or Hazardous Materials on,
or environmental conditions of, the Property, except for: (i) such matters as
to which Seller has knowledge and which are not disclosed in the Existing
Report; and (ii) third party claims brought against Purchaser and with respect
to which Purchaser names Seller as a third party defendant.
16.8. Tenant Leases. To Seller's knowledge, Exhibit J is a true,
correct, and complete statement of all: (i) apartment leases, tenancies, and
occupancies now in effect in connection with the Property (the "Tenant
Leases"); (ii) the tenants at the Property; (iii) the dates of the expiration
of Tenant Leases; (iv) the base rents payable under the Tenant Leases; and (v)
all security deposits under the Tenant Leases. To Seller's knowledge, no rent
has been prepaid under any Tenant Lease, except as set forth on Exhibit J. To
Seller's knowledge, as of the Closing Date, there will be: (a) no brokerage or
other leasing commissions payable in connection with any of the tenants or the
Tenant Leases or any new leases or amendments of existing Tenant Leases; and
(b) no work specifically required to be performed under the Tenant Leases
(other than work to be performed in the ordinary course of business). To
Seller's knowledge, the Tenant Leases are in full force and effect. Seller has
not received notice of any default by the landlord thereunder. No tenant under
any Tenant Lease has any option or right of first refusal to acquire any
ownership interest in the Property or any right to terminate its lease or is
entitled to any rebate or concession. Seller has not applied any security
deposits towards delinquent rent except for: (i) those tenants who have
vacated their apartments; and (ii) those tenants who are in arrears for rent
for more than thirty (30) days and with respect to whom Seller has commenced
the process of eviction.
16.9. Personal Property. To Seller's knowledge, Exhibit K contains a
list of all personal property owned by the Seller used in connection with the
operation of the Property (the "Personal Property"). To Seller's knowledge,
Seller owns good and indefeasible title to, or has a valid leasehold interest
in or has a valid right under contract to use the Personal Property. The
<PAGE>
Personal Property is owned by Seller free and clear of all Liens, other than
liens for current Taxes not yet due ("Permitted Liens"), and the loan evidenced
by the Note.
16.10. Business of the Partnership. The only business conducted by
Seller at any time since its formation is the ownership, operation, management,
financing, and development of the Property.
16.11. Contracts. Exhibit L sets forth a true and complete list of all
contracts (the "Contracts"). Seller has made available to Purchaser a true
copy of each Contract, as presently in effect, and Seller has not received any
notice from any party to any such Contract of the termination thereof. Neither
Seller nor, to the knowledge of Seller, any other party to any Contract is
currently in material violation or breach of or default under any such Contract
or, with or without notice or lapse of time or both, would be in material
violation or breach of or default under any such Contract.
16.12. Compliance with Law; Permits and Approvals. The business of
Seller has been and is currently being conducted in compliance in all material
respects with all Laws, excluding applicable building and zoning Laws. To
Seller's knowledge, Seller holds, and is in compliance in all material respects
with, all permits, licenses, variances, exemptions, orders and approvals of all
Governmental Authorities necessary for the lawful conduct of its business
(collectively, the "Licenses and Permits").
16.13. Notice of Environmental Violations. Except as set forth in the
Existing Report, Seller has not received written notice from any Governmental
Authority or other Person alleging that the Property presently contains
Hazardous Materials that Seller is in violation of any Law relating to
Hazardous Materials.
16.14. Loan Documents. Seller has previously delivered to Purchaser
copies of all of the material documents in Seller's possession evidencing or
securing the first mortgage loan (the "First Mortgage Loan Documents")
encumbering the Property. Furthermore, except as disclosed by Seller to
Purchaser, Seller has not received notice from any Lender that the First
Mortgage Loan is in default. Seller has not entered into any written
modifications of the First Mortgage Loan which have not been delivered to
Purchaser.
16.15. Responsibilities of Seller's Personnel. James Mendelson,
Vice-President of Balcor, is responsible for financing and disposition of the
Property. The asset manager and the resident manager of the Property are
collectively responsible for the management of the Property on behalf of
Seller.
16.16. Additional Review. A copy of Paragraph 16 shall be delivered to
each of the asset manager and the resident manager of the Property within two
(2) days after the execution by Seller of this Agreement, with a request to
advise Mr. Mendelson within five (5) business days after receipt by the asset
manager and the resident manager, as the case may be, as to the accuracy and
truthfulness of the representations and warranties. Mr. Mendelson shall notify
Purchaser as to the response of each of the asset manager and the resident
<PAGE>
manager within seven (7) business days if the asset manager or the resident
manager indicated that any of the representations or warranties were incorrect,
and the provisions of Paragraph 18.3 shall govern. If Mr. Mendelson fails to
so notify Purchaser, Purchaser shall be entitled to conclude that the asset
manager and the resident manager reviewed the representations and warranties
and that the representations and warranties are correct as of the date of
execution.
17. REPRESENTATIONS AND WARRANTIES OF PURCHASER. Purchaser hereby represents
and warrants to Seller as follows:
17.1.Authority. 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 by this Agreement.
17.2.Compliance with Laws. Except as described on Schedule 17.2,
Purchaser has complied with all Laws applicable to it or to the operation of
its business and has not received any notice of any material alleged claim or
threatened claim, violation of, or liability or potential responsibility under,
any such Law which has not heretofore been cured and for which there is no
remaining liability.
18. PRE-CLOSING COVENANTS.
18.1.Press Releases. Prior to the Closing, no party or Affiliate of a
party will issue or cause publication of any press release or other
announcement or public communication with respect to this Agreement or the
transactions contemplated herein, including without limitation a general
announcement to such party's employees, without the prior consent of the other
party, which consent will not be unreasonably withheld; provided, however, that
nothing herein will prohibit any party (or Affiliate) from issuing or causing
publication of any such press release, announcement or public communication to
the extent that such party (or Affiliate) reasonably determines such action to
be required by Law or the rules of any national stock exchange applicable to
it, in which case the party (or Affiliate) making such determination will use
reasonable efforts to allow the other party reasonable time to comment on such
release or announcement in advance of its issuance or to make any disclosure
necessary to: (i) obtain any consent required under Paragraph 20 below; or
(ii) obtain the Title Commitment, the Updated Survey, or the UCC Search. Upon
the execution of this Agreement and the Closing, Purchaser and Seller shall
agree upon the wording of joint press releases announcing such execution and
Closing, respectively, provided that in no event shall the parties issue any
press release prior to the expiration or waiver of the Inspection Period set
forth in Paragraph 7.
18.2. Conduct Of Business. Except as contemplated herein or otherwise
consented to by Purchaser in writing:
18.2.1. Affirmative Covenants. Seller covenants and agrees that
from the date hereof until the Closing, except for those matters beyond
Seller's Control, Seller will continue to operate the Property in substantially
the same manner as it is presently operated. Seller shall furnish to Purchaser
unaudited operating statements, rent rolls, and a leasing status report on a
monthly basis.
<PAGE>
18.2.2. Negative Covenants. Seller will not, and will not agree
to:
(i) apply security deposits towards delinquent rent except for: (a)
those tenants who have vacated their apartments on the Property; or (b) tenants
who are in arrears for rent for more than thirty (30) days and Seller has
commenced the process of evicting the tenant;
(ii) sell, transfer, pledge, mortgage, hypothecate, or assign, or offer
to sell, transfer, pledge, mortgage, hypothecate, or assign all or any portion
of the Property other than in the ordinary course of business; or
(iii) enter into any Contract which is not terminable by the giving of
thirty (30) days' notice (other than Tenant Leases);
(iv) terminate or modify any Contract, except the termination of any
Contract in the ordinary course of business;
(v) default with respect to the performance of any material obligation
relating to the Property, including, without limitation, the payment of all
amounts due and the performance of all obligations arising under the Loan
Documents;
(vi) enter into any new lease or extend any Lease for a term in
excess of one (1) year; or
(vii) authorize any of, or commit or agree to take any of, the
foregoing actions.
18.3.Additional Information. If at any time after the execution of this
Agreement, any party becomes aware of information which makes a representation
or warranty in this Agreement untrue in any material respect, such party shall
promptly disclose said information to the other parties. Provided the
representation or warranty was true when made and further provided that the
party making such representation or warranty did not take any action or omit to
take any action that caused the representation or warranty in question to
become untrue in any material respect, such party shall not be in default under
this Agreement as a result of a breach of such representation or warranty
arising from such disclosed information, and the sole remedy of the other party
shall be to terminate this Agreement in which event the Earnest Money, together
with interest thereon, shall be returned to Purchaser, this Agreement shall be
null and void, and neither Purchaser nor Seller shall have any further rights,
obligations, or liabilities hereunder, except as expressly set forth herein.
Notwithstanding anything contained herein to the contrary, if the status of any
of the tenancies changes from the date of the rent roll attached hereto on
Exhibit J and the date of the rent roll delivered at Closing, provided the
change in status is not caused by a breach of Seller's covenants contained
herein, then Purchaser shall not have the right to terminate this Agreement or
make any claim for a breach of a representation or warranty hereunder involving
the rent roll or tenancies thereunder. Purchaser and Seller are prohibited
from making any claims against the other party hereto after the Closing with
respect to any breaches of the other party's representations and warranties
contained in this Agreement that the claiming party had actual knowledge of
<PAGE>
prior to Closing. For the purposes of this Paragraph 18.3, the "actual
knowledge" of Purchaser shall mean only the actual knowledge of Terry Considine
and Peter Kompaniez. Notwithstanding the foregoing, prior to Closing, each of
Terry Considine and Peter Kompaniez shall cause the individuals responsible for
the performance of Purchaser's due diligence in connection with the
transactions contemplated herein to advise him of any information discovered in
the performance of such due diligence which makes a representation or warranty
in this Agreement untrue in any material respect.
18.4. No Negotiations. Seller shall use commercially reasonable efforts
to cause its Affiliates and their Representatives or any other Person acting
for or on behalf of any of them to refrain from, soliciting, entertaining
offers from, negotiating with, or in any manner discussing, encouraging,
recommending, agreeing to any proposal, or providing information relating to
the sale of the Property or any interest therein. If Seller, its Affiliates or
any of their Representatives receives from any Person any offer, proposal or
information request that may be subject to this Paragraph, Seller shall
promptly advise such Person, by written notice, of the terms of this Paragraph.
18.5. Property Questionnaire. On or before October 18, 1996, Seller shall
deliver to Purchaser a completed Property Questionnaire, in the form of Exhibit
M attached hereto and made a part hereof (the "Property Questionnaire"). If
Purchaser reasonably determines that the consummation of the transactions
contemplated by the Agreement could jeopardize the status of Apartment
Investment and Management Company, a Maryland corporation, as a real estate
investment trust, as defined in ee 856-860 of the Internal Revenue Code of
1986, as amended, based upon the information contained in the Property
Questionnaire, Purchaser shall have the right, but not the obligation, to
terminate this Agreement by delivery of a written notice of termination to
Seller prior to the expiration of the Inspection Period, in which event the
Earnest Money, together with any and all interest thereon, shall be returned to
Purchaser, this Agreement shall terminate and be null and void, and neither
Seller nor Purchaser shall have any further rights, obligations, or liabilities
hereunder, except as expressly set forth herein.
19. SURVIVAL; LIMITATIONS.
19.1. Survival Of Representations And Warranties. Following Closing,
each of the representations and warranties contained herein will survive and
remain in full force and effect for one hundred eighty (180) days after the
Closing (i.e., the claiming party shall not have the right to make any claims
against the other party for a breach of a representation or warranty after the
expiration of such 180-day period immediately following the Closing).
19.2. Limitation Of Seller's Liability. Neither Seller nor any Affiliate
of Seller nor any of their respective beneficiaries, shareholders, partners,
officers, agents, employees, heirs, successors or assigns shall have any
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 liability,
except for an amount not to exceed $200,000.00, in the aggregate, for a claim
based upon a breach of a representation or warranty of Seller following the
Closing.
<PAGE>
19.3. Distributions. Seller shall not distribute $200,000.00 from the
proceeds of the net cash received from the Purchaser at the Closing prior to
180 days after the Closing. If Purchaser alleges a claim for damages against
Seller after the Closing Date, but prior to 180 days after the Closing (a
"Claim"), then the Seller shall continue to withhold distribution of the funds
in an amount equal to the lesser of: (i) the amount of the Claim; or (ii)
$200,000.00, until the Claim is resolved. The Claim shall specify the exact
representation or warranty which was breached and the amount of damages the
Purchaser alleges it has sustained. Upon written notice from Seller that it
contests the Claim, Seller shall have the right to distribute the $200,000.00
unless Purchaser files a complaint alleging the Claim in a court of competent
jurisdiction with thirty (30) days of Seller's written notice.
20. ASSUMPTION OF LOAN.
20.1 The Property is currently encumbered by that certain First Mortgage
Loan by Seller to USGI, Inc. (the "Lender"), dated June 23, 1993, which secures
that certain Promissory Note (the "Note") made by Seller in favor of Lender in
the original principal amount of $5,185,000.00 (the First Mortgage Loan and the
Note, together with all other documents or instruments entered into by Seller
in connection with the First Mortgage Loan and the Note are hereinafter
referred to as the "Loan Documents" and the loan described in and evidenced by
the Loan Documents is hereinafter referred to as the "First Mortgage Loan").
Purchaser and Seller agree that the obligation of each party to consummate the
transactions contemplated by this Agreement are contingent upon the occurrence
of the following (the "Condition Precedent") on or before the date sixty (60)
days after the date hereof (the "Consent Date"): Lender consenting, in writing,
to: (i) the assumption by Purchaser of Seller's obligations under the Loan
Documents; and (ii) a release by Lender of Seller from any liability under the
Loan Documents (together, the "Lender Consent"). Purchaser will use its
reasonable efforts (without being obligated to pay any amounts to Lender in
excess of the fees or other charges set forth in the Loan Documents in
connection with the assumption of the Loan Documents, but in no event shall
Purchaser be obligated to pay to Lender an amount in excess of one percent (1%)
of the outstanding principal amount of the Note plus an application fee not to
exceed $2,000.00) to obtain the Lender Consent. In connection with Purchaser's
efforts to obtain the Lender Consent: (i) Purchaser agrees to take all actions
and deliver such documents as may be reasonably required by Lender; and (ii)
Purchaser shall pay all fees imposed by Lender as a result of the assumption of
the Loan Documents, but in no event shall Purchaser be obligated to pay to
Lender an amount in excess of one percent (1%) of the outstanding principal
amount of the Note plus an application fee not to exceed $2,000.00.
20.2 If Purchaser is unable to obtain the Lender Consent on or before the
Consent Date, then subject to the provisions of Paragraph 20.3, this Agreement
shall automatically terminate. If this Agreement is terminated in accordance
with the immediately preceding sentence, then the Earnest Money deposited by
Purchaser, together with any interest earned thereon, shall be paid to
Purchaser promptly, this Agreement shall be null and void, and neither
Purchaser nor Seller shall have any right, obligation or liability under this
Agreement, except as expressly set forth herein. Notwithstanding anything
contained herein to the contrary, Purchaser shall have the one-time right upon
written notice to Seller no later than seven (7) days prior to the Consent Date
to extend the Consent Date for up to thirty (30) days upon which the Closing
Date shall correspondingly be extended.
<PAGE>
20.3 Provided the Lender Consent is obtained, then at the Closing: (i)
Purchaser shall assume all of Seller's obligations under the Loan Documents;
and (ii) Seller shall be released from any liability under the Loan Documents
(or Purchaser shall provide to Seller the indemnification identified above).
In connection therewith, Purchaser and Seller agree to execute customary and
necessary documents (the "Assumption Documents") reflecting such assumption and
such release reasonably required by the Lender and reasonably acceptable to
Purchaser and Seller. Notwithstanding the foregoing to the contrary, Purchaser
may elect, in its sole discretion, to cause Seller to use the Purchase Price to
prepay the First Mortgage Loan at Closing, provided that Purchaser shall give
adequate advance notice to Lender of the prepayment in accordance with the Loan
Documents and Purchaser pay all fees and other costs charged by the Lender in
connection with the prepayment of the First Mortgage Loan, including without
limitation all prepayment fees. In the event that Purchaser so elects to
prepay the First Mortgage Loan, Purchaser shall not be obligated to use
reasonable efforts to obtain the Lender Consent and the payment of the Purchase
Price shall be made without a reduction for the assumption of the Loan
Documents as set forth in Paragraph 2.2 herein.
21. TIME OF ESSENCE. Time is of the essence of this Agreement.
22. 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 A-200
Bannockburn, Illinois 60015
Attention: Ilona Adams
with copies to: The Balcor Company
Bannockburn Lake Office Plaza
2355 Waukegan Road
Suite A-200
Bannockburn, Illinois 60015
Attention: James Mendelson
(847) 317-4360
(847) 317-4462 (FAX)
and to: Katten Muchin & Zavis
525 West Monroe Street
Suite 1600
Chicago, Illinois 60661-3693
Attention: Daniel J. Perlman, Esq.
(312) 902-5532
(312) 902-1061 (FAX)
<PAGE>
TO PURCHASER: AIMCO
1873 South Bellaire Street
17th Floor
Denver, Colorado 80221-4348
Attention: Harry Alcock
Peter Kompaniez
(303) 757-8735 (FAX)
with copies to: Skadden, Arps, Slate, Meagher & Flom
300 South Grand Avenue
Los Angeles, California 90071-3144
Attention: Rand S. April
(213) 687-5600 (FAX)
subject to the right of either party to designate a different address for
itself by notice similarly given. Any notice or demand so given shall be
deemed to be delivered or made on the next business day if sent by overnight
courier, or the same day as given if sent by facsimile transmission and
received by 5:00 p.m. Chicago time or on the fourth (4th) business day after
the same is deposited in the United States Mail as registered or certified
matter, addressed as above provided, with postage thereon fully prepaid. Any
such notice, demand or document not given, delivered or made by registered or
certified mail, 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.
23. 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 with 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
the following to the Escrow Agent:
(A) Earnest Money;
(B) One (1) fully executed copy of this Agreement; and
(C) Three (3) copies of the Escrow Agreement signed by the parties with a
direction to execute two (2) copies of the Escrow Agreement and deliver a fully
executed copy to each of the Purchaser and the Seller.
24. GOVERNING LAW. The provisions of this Agreement shall be governed by the
Laws of the State of Texas, except that with respect to the retainage of the
Earnest Money as liquidated damages the Laws of the State of Illinois shall
govern.
25. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement between
the parties and supersedes all prior or contemporaneous negotiations,
understandings and representations made by and between the parties and their
respective Representatives.
26. COUNTERPARTS. This Agreement may be executed in multiple counterparts,
each of which shall be deemed an original but all of which shall constitute one
and the same instrument.
<PAGE>
27. CAPTIONS. Paragraph titles or captions contained herein are inserted as a
matter of convenience and for reference, and in no way define, limit, extend or
describe the scope of this Agreement or any provision hereof.
28. DEFINITIONS. For purposes of this Agreement, the following terms have the
meanings set forth below:
"Affiliate" shall mean, with respect to any Person, any other Person
that directly or indirectly through one or more intermediaries, Controls, is
Controlled by, or is under common Control with such Person.
"Business Day" shall mean a day other than Saturday, Sunday, or any
day on which the principal commercial banks located in Illinois are authorized
or obligated to close under the Laws of Illinois.
"Control" (and its derivative terms "Controlled," "Controls," etc.)
shall mean the power and right to direct the management and policies of another
Person, whether by ownership of voting securities, the ability to elect a
majority of the board of directors or other managing board or committee,
management Contract, or otherwise.
"Environmental Laws" shall mean all federal, state, and local
statutes, codes, regulations, rules, ordinances, orders, standards, permits,
licenses, policies, and requirements, (including consent decrees, judicial
decisions, and administrative orders) relating to the protection, preservation,
remediation, or conservation of the environment or workers health or safety,
all as amended or reauthorized, or as hereafter amended or reauthorized,
including without limitation, the Comprehensive Environmental Response,
Compensation, and Liability Act ("CERCLA"), 42 U.S.C. Section 9601 et seq., the
Resource Conservation and Recovery Act of 1976 ("RCRA"), 42 U.S.C. Section 6901
et seq., the Emergency Planning and Community Right-to-Know Act ("Right-to-Know
Act"), 42 U.S.C. Section 11001 et seq., the Clean Air Act ("CAA"), 42 U.S.C.
Section 7401 et seq., the Federal Water Pollution Control Act ("Clean Water
Act"), 33 U.S.C. Section 1251 et seq., the Toxic Substances Control Act
("TSCA"), 15 U.S.C. Section 2601 et seq., the Safe Drinking Water Act ("Safe
Drinking Water Act"), 42 U.S.C. Section 300f et seq., the Atomic Energy Act
("AEA"), 42 U.S.C. Section 2011 et seq., the Occupational Safety and Health Act
("OSHA"), 29 U.S.C. Section 651 et seq., and the Hazardous Materials
Transportation Act (the "Transportation Act"), 49 U.S.C. Section 1802 et seq.
"Governmental Authority" shall mean any government or any agency,
bureau, board, commission, court, department, official, political subdivision,
tribunal or other instrumentality of any government, whether Federal, state,
local, domestic or foreign.
"Hazardous Materials" means: (1) "hazardous substances," as defined
by CERCLA; (2) "hazardous wastes," as defined by RCRA; (3) any radioactive
material including, without limitation, any source, special nuclear or
by-product material, as defined by AEA; (4) asbestos in any form or condition;
(5) polychlorinated biphenyls; and (6) any other material, substance, or waste
to which liability or standards of conduct are imposed under any Environmental
Laws.
<PAGE>
"Improvements" shall mean, with respect to the Land, all buildings,
improvements, structures and fixtures located on or in the Land.
"Intangible Property" shall mean, with respect to any Real Property,
all intangible property owned by the Seller and used by the Seller in
connection with the Real Property and/or the Personal Property relating
thereto, including, without limitation, all of the Seller's right, title and
interest in, to and under: (i) the Leases, all Contract rights, books, reports,
test results, environmental assessments, as-built plans, specifications and
other similar documents and materials relating to the use, operation,
maintenance, repair, construction or fabrication of the Real Property or the
Personal Property; (ii) all trademarks and trade names, (iii) all transferable
business licenses, architectural, site, landscaping or other permits,
applications, approvals, authorizations and other entitlements affecting the
Real Property; and (iv) all transferable guarantees, warranties and utility
Contracts relating to the Real Property. Notwithstanding the foregoing to the
contrary, computer software shall not be included within the definition of
Intangible Property.
"Law" shall mean all laws, rules, regulations, ordinances, decrees,
and orders of all applicable Federal, state, city, and other Governmental
Authorities.
"Lien" shall mean any mortgage, pledge, assessment, security
interest, lease, sublease, lien, adverse claim, levy, charge, option or other
encumbrance of any kind, whether imposed by agreement, understanding, law or
equity, or any conditional sale contract, title retention contract, or other
contract to give or to refrain from giving any of the foregoing, provided,
however, that "Lien" shall not include Tenant Leases.
"Order" shall mean any order, decree, injunction, judgment, edict,
ruling, assessment, pronouncement, determination, decision, opinion, sentence,
subpoena, writ or award issued, made, entered or rendered by any court,
administrative agency or other Governmental Authority or by any arbitrator.
"Organizational Documents" shall mean (i) with respect to a
corporation, its certificate or articles of incorporation and bylaws, (ii) with
respect to any limited liability company, its certificate of formation,
articles of organization, regulations, operating agreement and limited
liability company agreement, as applicable, (iii) with respect to any limited
partnership, its certificate of limited partnership and limited partnership
agreement, (iv) with respect to any general partnership, its partnership
agreement, and (v) all other similar organizational documents.
"Person" shall mean any natural person, corporation, general
partnership, limited partnership, proprietorship, trust, union, association,
court, tribunal, agency, government, department, commission, self-regulatory
organization, arbitrator, board, bureau, instrumentality, or other entity,
enterprise, authority, or business organization.
"Real Property" shall mean (i) the Land, (ii) the Improvements
thereon, (iii) all apparatus, equipment and appliances affixed to and used in
connection with the operation or occupancy of the Land and the Improvements
(such as heating, air conditioning or mechanical systems and facilities used to
provide any utility services, refrigeration, ventilation, waste disposal or
<PAGE>
other services) and now or hereafter located on or in the Land or the
Improvements, and (ii) all of the Seller's right, title, and interest in and to
all of the rights, privileges and easements appurtenant to or used in
connection with the Land and the Improvements, including, without limitation,
all minerals, oil, gas and other hydrocarbon substances, all development
rights, air rights, water, water rights and water stock relating to the Land,
all strips and gores, any streets, alleys, easements, rights-of-way, public
ways, or other rights appurtenant, adjacent or connected to the Land.
"Representative" shall mean, with respect to any Person, any
director, officer, employee, agent, advisor, counsel, accountant, lender or
other representative of such Person or of any Affiliate of such Person or any
Representative of any of the foregoing.
"Seller's Knowledge" shall mean, and any reference in this Agreement
to "Seller's knowledge" or to "knowledge of Seller" or notice of any matter or
thing, shall only mean the knowledge of, or notice that has actually been
received by, James Mendelson. Except as set forth in the preceding sentence,
any knowledge or notice given, had or received by any of Seller's agents,
servants or employees shall not be imputed to Seller or the individual
shareholders or officers of Seller.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have put their hand and seal as of
the date first set forth above.
SELLER:
CHESAPEAKE ASSOCIATES, an Illinois limited partnership
By: Chesapeake Investors, an Illinois limited
partnership, its general partner
By: Balcor Partners-XV, an Illinois general
partnership, its general partner
By: RGF-Balcor Associates-II, an Illinois
general partnership, a general partner
By: The Balcor Company, a Delaware
corporation, a general partner
By: /s/ James E. Mendelson
-----------------------------
Name: James E. Mendelson
-----------------------------
Title: Authorized Rep
-----------------------------
PURCHASER:
AIMCO PROPERTIES, L.P., a Delaware limited partnership
By: AIMCO-GP, Inc., a Delaware corporation
By: /s/ Harry Alcock
-------------------------------
Name: Harry Alcock
-------------------------------
Title: Vice President
-------------------------------
<PAGE>
[Chesapeake Apartments]
_________________ of Sage Properties ("Seller's Broker") executed this
Agreement in its capacity as a real estate broker and acknowledges that the fee
or commission due it from Seller as a result of the transaction described in
this Agreement is as set forth in that certain Listing Agreement, dated __,
1996 between Seller and Seller's Broker (the "Listing Agreement"). Seller's
Broker also acknowledges that payment of the aforesaid fee or commission is
conditioned upon the Closing and the receipt of the Purchase Price by the
Seller. Seller's Broker agrees to deliver a receipt to the Seller at the
Closing for the fee or commission due Seller's Broker and a release, in the
appropriate form, stating that no other fees or commissions are due to it from
Seller or Purchaser.
SAGE PROPERTIES
By:
-------------------------------
Its:
-------------------------------
<PAGE>
Exhibits
A - Legal Description
B - Escrow Agreement
C - Title Commitment
D - Special Warranty Deed
E - Special Warranty Bill of Sale
F - Assignment and Assumption of Intangible Property
G - Assignment and Assumption of Leases and Security Deposits
H - FIRPTA Statement
I - Notice to Tenants
J - Rent Roll
K - Personal Property
L - Contracts
M - Property Questionnaire
N - Litigation
O - Certification and Indemnity Agreement
<PAGE>
FIRST AMENDMENT TO AGREEMENT OF SALE
THIS FIRST AMENDMENT TO AGREEMENT OF SALE (this "Amendment") is entered
into as of this 22nd day of October, 1996 by and between AIMCO PROPERTIES,
L.P., a Delaware limited partnership ("Purchaser") and CHESAPEAKE ASSOCIATES,
an Illinois limited partnership ("Seller").
RECITALS;
WHEREAS, Purchaser and Seller have entered into an Agreement of Sale dated
October 18, 1996 (the "Original Agreement"), for the property described therein
(the "Property"), commonly known as the Chesapeake Apartments, located at 8727
Point Park Drive, Houston, Texas, 77095; and
WHEREAS, the parties desire to amend the Original Agreement on the terms
and conditions set forth below.
NOW, THEREFORE, in consideration of Ten Dollars ($10.00) and other good
and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree as follows:
AGREEMENT
1. Amendment. The Original Agreement is hereby amended as follows:
a. In the first sentence of Section 3.2, "October 21, 1996" shall be
deleted and replaced by "October 23, 1996".
b. In the first sentence of Section 18.5, "October 18, 1996" shall be
deleted and replaced by "October 23, 1996".
2. No Modification. Except as amended and modified hereby, the Original
Agreement shall be and remain unchanged in full force and effect in accordance
with its terms and it is hereby ratified and confirmed. In the event of any
inconsistency between the terms and conditions of the Original Agreement and
the terms and conditions of this Amendment, the terms and conditions of this
Amendment shall govern and control.
3. Counterparts. This Amendment may be executed in multiple counterparts,
each of which shall be deemed to be an original, but all of which together
shall constitute one and the same agreement.
<PAGE>
IN WITNESS WHEREOF, the parties have executed this Amendment as of the day
and year first written above.
PURCHASER:
AIMCO PROPERTIES, L. P., a Delaware limited
partnership
By: AIMCO-GP, Inc., a Delaware corporation,
its general partner
By: /s/ Harry Alcock
--------------------------------
Name: Harry Alcock
--------------------------------
Its: Vice President
--------------------------------
SELLER:
Chesapeake Associates, an Illinois limited
partnership
By: Chesapeake Investors, an Illinois limited
partnership, its general partner
By: Balcor Partners-XV, an Illinois
general partnership, its general
partner
By: The Balcor Company,
a Delaware corporation,
a general partner
By: /s/ James E. Mendelson
------------------------------
Name: James E. Mendelson
------------------------------
Title: Senior Vice President
------------------------------
<PAGE>
[Quail Lakes]
AGREEMENT OF SALE
THIS AGREEMENT OF SALE (this "Agreement"), is entered into as of the 21st
day of October, 1996, by and between NCH Corporation, an Arizona corporation
("Purchaser"), and Quail Lakes Investors Limited Partnership, 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 Ten Million Five Hundred Thousand and No/100 Dollars
($10,500,000.00) (the "Purchase Price"), that certain property commonly known
as Quail Lakes Apartments Oklahoma City, Oklahoma legally described on
Exhibit A attached hereto (the "Property"). Included in the Purchase Price is
all of the personal property owned by Seller and used in connection with the
ownership, operation or management of the Property (excluding any computer
hardware and software) and including, without limitation, the items set forth
on Exhibit B attached hereto (the "Personal Property").
2. PURCHASE PRICE. The Purchase Price shall be paid by Purchaser as follows:
2.1. Upon the execution of this Agreement, the sum of Two Hundred Fifty
Thousand and No/100 Dollars ($250,000.00) (the "Earnest Money") to be held in
escrow by the escrow agent (the "Escrow Agent") as set forth and in accordance
with the provisions of the Escrow Agreement ("Escrow Agreement") attached
hereto as Exhibit C; and
2.2. On the "Closing Date" (hereinafter defined), the balance of the
Purchase Price, adjusted in accordance with the prorations, by federally wired
"immediately available" funds, on or before 3:00 p.m Chicago time.
3. TITLE COMMITMENT AND SURVEY.
3.1. Attached hereto as Exhibit D is a copy of a title commitment for an
owner's standard title insurance policy issued by First American Title
Insurance Corporation (hereinafter referred to as "Title Insurer") effective
September 4, 1996 at 7:30 a.m. for the Property (the "Title Commitment"). For
purposes of this Agreement, "Permitted Exceptions" shall mean: (a) general real
estate taxes, association assessments, special assessments, special district
taxes and related charges not yet due and payable; (b) matters shown on the
"Survey" (hereinafter defined); (c) matters caused by the actions of Purchaser;
and (d) the special exceptions set forth in Schedule B - Part II of the Title
Commitment as Numbers 2 through 13 inclusive, to the extent that same affect
the Property. All other exceptions to title shall be referred to as
"Unpermitted Exceptions". The Title Commitment shall be conclusive evidence of
good title as therein shown as to all matters to be insured by the title
policy, subject only to the exceptions therein stated. On the Closing Date,
Title Insurer shall deliver to Purchaser a standard title policy in conformance
with the previously delivered Title Commitment, subject only to Permitted
Exceptions and Unpermitted Exceptions waived by Purchaser (the "Title Policy").
<PAGE>
Seller and Purchaser shall each pay for one-half of 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.
3.2. Purchaser has received a survey of the Property prepared by
Smith-Roberts and Associates, Inc. dated April 5, 1984, last updated May 28,
1996 (the "Survey"). Seller and Purchaser shall each pay for one-half of the
costs of any further updating of the Survey. Purchaser hereby acknowledges
that all matters disclosed by the Existing Survey are acceptable to Purchaser.
3.3. The obligations of the Seller and Purchaser to pay various costs set
forth in Paragraphs 3.1 and 3.2 (as modified by Paragraph 5.1 below) 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" (hereinafter defined) and all other stamps, intangible,
transfer, documentary, and recording fees required to be paid in connection
with this transaction. Seller shall not be responsible to pay any mortgage tax
in connection with this transaction. Buyer shall pay any sales tax imposed by
law with reference to the transfer of the Personal Property in connection with
the sale of the Property to Purchaser. The closing fee and other charges of
the Title Insurer shall be paid one-half by Seller and one-half by Buyer. In
addition, Purchaser will pay the cancellation fee, if any, charged by Lawyers
Title Insurance Company.
5. CONDITION OF TITLE.
5.1. If, prior to "Closing" (as hereinafter defined), a date-down to the
Title Commitment discloses any new Unpermitted Exception, Seller shall have
thirty (30) days from the date of the date-down to the Title Commitment at
Seller's expense, to (i) bond over, cure, cause the Title Insurer to insure
over and/or have removed from the Title Commitment any such new Unpermitted
Exceptions which can be bonded over, cured, insured over by the Title Insurer
and/or removed from the Title Commitment for an aggregate cost to Seller not to
exceed $100,000 (a "Minor Unpermitted Exception"), or (ii) have the right, but
not the obligation, to bond over, cure, cause the Title Insurer to insure over
and/or have removed from the Title Commitment any Unpermitted Exceptions which
can be bonded over, cured, insured over by the Title Insurer and/or removed
from the Title Commitment for an aggregate cost to Seller equal to or in excess
of $100,000.00. In such event, the time of Closing shall be delayed, if
necessary, to give effect to said aforementioned time period. If Seller fails
to cure or have said Unpermitted Exception removed or have the Title Insurer
commit to insure as specified above within said thirty (30) day period or if
Seller elects not to exercise its rights under (ii) in the preceding sentence,
Purchaser may, as its sole remedy, elect to terminate this Agreement upon
notice to Seller within five (5) days after the expiration of said thirty (30)
day period, with all expenses of the Title Commitment and Survey to be paid by
Seller regardless of the provisions of Paragraphs 3.1 and 3.2 above; provided,
however, and notwithstanding anything contained herein to the contrary, if the
<PAGE>
new Unpermitted Exception which gives rise to Purchaser's right to terminate
was recorded against the Property as a result of the affirmative, willful
action of Seller (and not by any unrelated third party) with the intention to
prevent the sale of the Property in accordance with the terms hereof or if
Seller fails to bond over, cure, insure over or remove a Minor Unpermitted
Exception in accordance with the terms hereof, then Purchaser shall have the
additional rights contained in Paragraph 11 herein. Absent notice from
Purchaser to Seller in accordance with the preceding sentence, Purchaser shall
be deemed to have elected to take title subject to said new Unpermitted
Exception. If Purchaser terminates this Agreement in accordance with the terms
of this Paragraph 5.1, this Agreement shall become null and void without
further action of the parties and all Earnest Money theretofore deposited into
the escrow by Purchaser together with any interest accrued thereon, shall be
returned to Purchaser, and neither party shall have any further liability to
the other, except for Purchaser's obligation to indemnify Seller and restore
the Property, as more fully set forth in Paragraph 7.
5.2. Seller agrees to convey fee simple title to the Property to
Purchaser by special warranty deed (the "Deed") in recordable form subject only
to the Permitted Exceptions and any Unpermitted Exceptions waived by Purchaser.
6. CONDEMNATION, EMINENT DOMAIN, DAMAGE AND CASUALTY.
6.1. Except as provided in the indemnity provisions contained in
Paragraph 7.1 of this Agreement, Seller shall bear all risk of loss with
respect to the Property up to the earlier of the dates upon which either
possession or title is transferred to Purchaser in accordance with this
Agreement. Notwithstanding the foregoing, in the event of damage to the
Property by fire or other casualty prior to the Closing Date, repair of which
would cost less than or equal to $100,000.00 (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 obligation to
either (i) repair and restore the Property (in which case the Closing Date
shall be extended for a period of time not to exceed ninety (90) days to
complete such restoration) or (ii) 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 and
Seller shall pay to Purchaser at the Closing the amount of Seller's insurance
deductible. Seller shall promptly notify Purchaser in writing of any such fire
or other casualty and Seller's determination of the cost to repair the damage
caused thereby. In the event of damage to the Property by fire or other
casualty prior to the Closing Date, repair of which would cost in excess of
$100,000.00 (as determined by Seller's insurer in good faith), then this
Agreement may be terminated at the option of Purchaser, which option shall be
exercised, if at all, by Purchaser's written notice thereof to Seller within
ten (10) business days after Purchaser receives written notice of such fire or
other casualty and the determination by Seller's insurer of the amount of such
damages, and upon the exercise of such option by Purchaser this Agreement shall
become null and void, the Earnest Money deposited by Purchaser shall be
returned to Purchaser together with interest thereon, and neither party shall
have any further liability or obligations hereunder. In the event that
Purchaser does not exercise the option set forth in the preceding sentence, the
<PAGE>
Closing shall take place on the Closing Date and Seller shall assign and
transfer to Purchaser on the Closing Date all of Seller's right, title and
interest in and to all insurance proceeds paid or payable to Seller on account
of the fire or casualty and Seller shall pay to Purchaser at the Closing the
amount of Seller's insurance deductible. Seller hereby covenants to keep in
effect through Closing the full replacement cost insurance for the Property
currently in effect.
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) materially impair access to the Property; (ii) cause any material
non-compliance with any applicable law, ordinance, rule or regulation of any
federal, state or local authority or governmental agencies having jurisdiction
over the Property or any portion thereof; or (iii) materially and 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;
or
6.2.2. proceed with the Closing, in which event Seller shall assign
to Purchaser all of Seller's right, title and interest in and to any award made
in connection with such condemnation or eminent domain proceedings.
6.3. Purchaser shall then notify Seller, within ten (10) business days
after Purchaser's receipt of Seller's notice, whether Purchaser elects to
exercise its rights under Paragraph 6.2.1 or Paragraph 6.2.2. Closing shall be
delayed, if necessary, until Purchaser makes such election. If Purchaser fails
to make an election within such ten (10) business day period, Purchaser shall
be deemed to have elected to exercise its rights under Paragraph 6.2.2. If
between the 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. Purchaser at Purchaser's sole cost and expense has completed its
inspection of the Property. In that regard, Purchaser shall defend, indemnify
and hold Seller and any affiliate, parent of Seller, and all shareholders,
employees, officers and directors of Seller or Seller's affiliate or parent
(hereinafter collectively referred to as "Affiliate of Seller") harmless from
any and all liability, cost and expense (including without limitation,
reasonable attorney's fees, court costs and costs of appeal) suffered or
<PAGE>
incurred by Seller or Affiliates of Seller for injury to persons or property
caused by Purchaser's investigations and inspection of the Property. Purchaser
shall undertake its obligation to defend set forth in the preceding sentence
using attorneys selected by Purchaser and approved by Seller.
7.2. 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, wear and tear and loss by fire or other casualty
or condemnation excepted. Without limiting the foregoing, Purchaser
acknowledges that, except as may otherwise be specifically set forth elsewhere
in this Agreement, neither Seller nor its consultants, brokers or agents have
made any representations or warranties of any kind upon which Purchaser is
relying as to any matters concerning the Property or the Personal Property,
including, but not limited to, the condition of the land or any improvements
comprising the Property, the existence or non-existence of "Hazardous
Materials" (as hereinafter defined), economic projections or market studies
concerning the Property, any development rights, taxes, bonds, covenants,
conditions and restrictions affecting the Property, water or water rights,
topography, drainage, soil, subsoil of the Property, the utilities serving the
Property or any zoning or building laws, rules or regulations or "Environmental
Laws" (hereinafter defined) affecting the Property. Seller makes no
representation or warranty that the Property complies with Title III of the
Americans with Disabilities Act or any fire code or building code. Purchaser
hereby releases Seller and the Affiliates of Seller from any and all liability
in connection with any claims which Purchaser may have against Seller or the
Affiliates of Seller, and Purchaser hereby agrees not to assert any claims for
contribution, cost recovery or otherwise, against Seller or the Affiliates of
Seller, relating directly or indirectly to the existence of asbestos or
Hazardous Materials on, or environmental conditions of, the Property, whether
known or unknown. As used herein, "Environmental Laws" means all federal,
state and local statutes, codes, regulations, rules, ordinances, orders,
standards, permits, licenses, policies and requirements (including consent
decrees, judicial decisions and administrative orders) relating to the
protection, preservation, remediation or conservation of the environment or
worker health or safety, all as amended or reauthorized, or as hereafter
amended or reauthorized, including without limitation, the Comprehensive
Environmental Response, Compensation and Liability Act ("CERCLA"), 42 U.S.C.
Section 9601 et seq., the Resource Conservation and Recovery Act of 1976
("RCRA"), 42 U.S.C. Section 6901 et seq., the Emergency Planning and Community
Right-to-Know Act ("Right-to-Know Act"), 42 U.S.C. Section 11001 et seq., the
Clean Air Act ("CAA"), 42 U.S.C. Section 7401 et seq., the Federal Water
Pollution Control Act ("Clean Water Act"), 33 U.S.C. Section 1251 et seq., the
Toxic Substances Control Act ("TSCA"), 15 U.S.C. Section 2601 et seq., the Safe
Drinking Water Act ("Safe Drinking Water Act"), 42 U.S.C. Section 300f et seq.,
the Atomic Energy Act ("AEA"), 42 U.S.C. Section 2011 et seq., the Occupational
Safety and Health Act ("OSHA"), 29 U.S.C. Section 651 et seq., and the
Hazardous Materials Transportation Act (the "Transportation Act"), 49 U.S.C.
Section 1802 et seq. As used herein, "Hazardous Materials" means:
<PAGE>
(1) "hazardous substances," as defined by CERCLA; (2) "hazardous wastes," as
defined by RCRA; (3) any radioactive material including, without limitation,
any source, special nuclear or by-product material, as defined by AEA; (4)
asbestos in any form or condition; (5) polychlorinated biphenyls; and (6) any
other material, substance or waste to which liability or standards of conduct
may be imposed under any Environmental Laws. Notwithstanding anything
contained herein to the contrary, the terms of this Paragraph 7.2 shall survive
the Closing and the delivery of the Deed and termination of this Agreement.
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. Seller makes no representation or
warranty that such material is complete or accurate or that Purchaser will
achieve similar financial or other results with respect to the operations of
the Property, it being acknowledged by Purchaser that Seller's operation of the
Property and allocations of revenues or expenses may be vastly different than
Purchaser may be able to attain. Purchaser acknowledges that it is a
sophisticated and experienced purchaser of real estate and further that
Purchaser has relied upon its own investigation and inquiry with respect to the
operation of the Property and releases Seller and the Affiliates of Seller from
any liability with respect to such historical information. Notwithstanding
anything contained herein to the contrary, the terms of this Paragraph 7.3
shall survive the Closing and the delivery of the Deed and termination of this
Agreement.
7.4. Seller has provided to Purchaser the following existing report Phase
I Environmental Site Assessment of Quail Lakes, dated April 12, 1996 under
Project No.: 04501045.96B ("Existing Report"). Seller makes no representation
or warranty concerning the accuracy or completeness of the Existing Report.
Purchaser hereby releases Seller and the Affiliates of Seller from any
liability whatsoever with respect to the Existing Report, or, including,
without limitation, the matters set forth in the Existing Report, and the
accuracy and/or completeness of the Existing Report. Nothing herein is
intended to release the preparer of the Existing Report from any liability it
may have to Purchaser with respect to the preparation and delivery of the
Existing Report. Furthermore, Purchaser acknowledges that it will be
purchasing the Property with all faults disclosed in the Existing Report.
Notwithstanding anything contained herein to the contrary, the terms of this
Paragraph 7.4 shall survive the Closing and the delivery of the Deeds and
termination of this Agreement.
8. CLOSING. The closing of this transaction (the "Closing") shall be on or
before December 2, 1996 (the "Closing Date"), at the office of the Title
Insurer located at 133 Northwest Eight Street, Oklahoma City, Oklahoma 73102.
At the Closing, Seller shall deliver possession of the Property and Personal
Property to Purchaser. This transaction shall be closed by and through an
escrow with Title Insurer, in accordance with the general provisions of the
usual and customary form of deed and money escrow for similar transactions in
Oklahoma, or at the option of either party, the Closing shall be a "New York
<PAGE>
style" closing at which the Purchaser shall wire the Purchase Price to Title
Insurer on the Closing Date and prior to the release of the Purchase Price to
Seller, Purchaser shall receive the Title Policy or marked up Title Commitment
dated the date of the Closing Date. In the event of a New York style closing,
Seller shall deliver to Title Insurer any customary affidavit in connection
with a New York style closing. All closing and escrow fees shall be divided
equally between the parties hereto.
9. CLOSING DOCUMENTS.
9.1. On or prior to 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 and an assumption of
the documents set forth in Paragraphs 9.2.3 and 9.2.4. Seller and Purchaser
shall execute and deliver such other documents as may be reasonably required by
the Title Insurer in order to consummate the transaction as set forth in this
Agreement.
9.2. On the Closing Date, Seller shall deliver to Purchaser the
following:
9.2.1. the Deed (in the form of Exhibit E attached hereto), subject
to Permitted Exceptions and those Unpermitted Exceptions waived by Purchaser;
9.2.2. a special warranty bill of sale conveying the Personal
Property (in the form of Exhibit F attached hereto);
9.2.3. assignment and assumption of intangible property (in the form
attached hereto as Exhibit G), including, without limitation, the service
contracts listed in Exhibit H;
9.2.4. an assignment and assumption of leases and security deposits
(in the form attached hereto as Exhibit I);
9.2.5. non-foreign affidavit (in the form of Exhibit J attached
hereto);
9.2.6. original, and/or copies of, leases affecting the Property in
Seller's possession (which shall be delivered at the Property);
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 terms
of leases;
9.2.9. evidence of the termination of the management agreement;
9.2.10. notice to the tenants of the Property of the transfer of
title and assumption by Purchaser of the landlord's obligation under the leases
and the obligation to refund the security deposits (in the form of Exhibit K);
and
<PAGE>
9.2.11. an updated rent roll certified by Seller as set forth in
Section 16.2 hereof.
10. PURCHASER'S DEFAULT. 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, SELLER SHALL RETAIN ALL OF THE EARNEST MONEY AND
THE INTEREST THEREON AS SELLER'S SOLE RIGHT TO DAMAGES OR ANY OTHER REMEDY,
EXCEPT FOR PURCHASER'S OBLIGATIONS TO INDEMNIFY SELLER AND RESTORE THE PROPERTY
AS SET FORTH IN PARAGRAPH 7.1 HEREOF. THE PARTIES HAVE AGREED THAT SELLER'S
ACTUAL DAMAGES, IN THE EVENT OF A DEFAULT BY PURCHASER, WOULD BE EXTREMELY
DIFFICULT OR IMPRACTICAL TO DETERMINE. THEREFORE, BY PLACING THEIR INITIALS
BELOW, THE PARTIES ACKNOWLEDGE THAT THE EARNEST MONEY HAS BEEN AGREED UPON,
AFTER NEGOTIATION, AS THE PARTIES' REASONABLE ESTIMATE OF SELLER'S DAMAGES.
11. SELLER'S DEFAULT. IF THIS SALE IS NOT COMPLETED BECAUSE OF SELLER'S
DEFAULT, PURCHASER'S SOLE REMEDY SHALL BE THE RETURN OF ALL EARNEST MONEY
TOGETHER WITH ANY INTEREST ACCRUED THEREON, IN WHICH EVENT THIS AGREEMENT SHALL
THEN BECOME NULL AND VOID AND OF NO EFFECT AND THE PARTIES SHALL HAVE NO
FURTHER LIABILITY TO EACH OTHER AT LAW OR IN EQUITY, EXCEPT FOR PURCHASER'S
OBLIGATIONS TO INDEMNIFY SELLER AND RESTORE THE PROPERTY AS SET FORTH MORE
FULLY IN PARAGRAPH 7. NOTWITHSTANDING ANYTHING CONTAINED HEREIN TO THE
CONTRARY, IF SELLER'S DEFAULT IS (i) ITS (AND NOT AN UNRELATED THIRD PARTY'S)
AFFIRMATIVE, WILLFUL ACTION WHICH RESULTS IN THE RECORDING OF AN ENCUMBRANCE
AGAINST THE PROPERTY WITH THE INTENTION TO PREVENT THE SALE OF THE PROPERTY IN
ACCORDANCE WITH THE TERMS HEREOF AND WHICH GIVES RISE TO PURCHASER'S RIGHT TO
TERMINATE THIS AGREEMENT PURSUANT TO PARAGRAPH 5 HEREOF; (ii) ITS FAILURE TO
BOND OVER, CURE, CAUSE THE TITLE INSURER TO INSURE OVER AND/OR REMOVE A MINOR
UNPERMITTED EXCEPTION IN ACCORDANCE WITH THE TERMS OF PARAGRAPH 5 HEREOF OR
(iii) ITS WILLFUL REFUSAL TO DELIVER THE DEED OR ANY OF THE OTHER CONVEYANCE
DOCUMENTS, THEN PURCHASER WILL BE ENTITLED TO SUE FOR SPECIFIC PERFORMANCE.
12. PRORATIONS.
12.1. Rents (exclusive of delinquent rents, but including prepaid rents);
refundable security, pet and other deposits (which will be assigned to and
assumed by Purchaser and credited to Purchaser at Closing); water and other
utility charges; fuels; prepaid on-site operating expenses; real and personal
property taxes; and other similar items shall be adjusted ratably as of 11:59
p.m. on the Closing Date, and credited against the balance of the cash due at
Closing. Assessments payable in installments which are not due until after 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. All prorations will be final
except as to delinquent rent referred to in Paragraph 12.2 below.
12.2. 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
and including the Closing Date shall be deemed a "Post-Closing Receipt" until
such time as all such indebtedness is paid in full. Within thirty (30) days
following each receipt by Purchaser of a Post-Closing Receipt, Purchaser shall
pay such Post-Closing Receipt to Seller. Purchaser shall use its best efforts
<PAGE>
to collect all amounts which, upon collection, would constitute Post-Closing
Receipts hereunder. Within 120 days after the Closing Date, Purchaser shall
deliver to Seller a reconciliation statement of Post-Closing Receipts through
the first 90 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. Seller retains the right to conduct an
audit, at reasonable times and upon reasonable notice, of Purchaser's books and
records to verify the accuracy of the Post-Closing Receipts reconciliation
statement and upon the verification of additional funds owing to Seller,
Purchaser shall pay to Seller said additional Post-Closing Receipts and, if the
additional funds owing to Seller exceed $1,000 the cost of performing Seller's
audit. Paragraph 12.2 of this Agreement shall survive the Closing and the
delivery and recording of the deed.
13. RECORDING. Neither this Agreement nor a memorandum thereof shall be
recorded and the act of recording by Purchaser shall be an act of default
hereunder by Purchaser and subject to the provisions of Paragraph 10 hereof.
14. ASSIGNMENT. The Purchaser shall have the express right to assign its
interest in this Agreement to a limited partnership, limited liability company
or any other entity in which the Purchaser is a general partner, general
manager or otherwise has managing control of said general partner or said
general manager, without the prior written consent of the Seller. In the event
of any such permitted assignment, the Purchaser shall not be relieved of its
obligations herein to the Seller. Except as permitted hereinabove, 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 in violation of
this Paragraph 14 shall be an act of default hereunder by Purchaser and subject
to the provisions of Paragraph 10 hereof.
15. BROKER. The parties hereto represent and warrant that no broker
commission or finder fee is due and payable in connection with this transaction
other than to CB Commercial Real Estate Group (to be paid by Seller). Seller's
commission to CB Commercial Real Estate Group shall only be payable out of the
proceeds of the sale of the Property in the event the transaction set forth
herein closes. Purchaser and Seller shall indemnify, defend and hold the other
party hereto harmless from any claim whatsoever (including without limitation,
reasonable attorney's fees, court costs and costs of appeal) from anyone
claiming by or through the indemnifying party any fee, commission or
compensation on account of this Agreement, its negotiation or the sale hereby
contemplated other than to CB Commercial Real Estate Group. The indemnifying
party shall undertake its obligations set forth in this Paragraph 15 using
attorneys selected by the indemnifying party and reasonably acceptable to the
indemnified party. The provisions of this Paragraph 15 will survive the
Closing and delivery of the Deed.
16. REPRESENTATIONS AND WARRANTIES.
16.1. Any reference herein to Seller's knowledge or notice of any matter
or thing shall only mean such knowledge or notice that has actually been
received by James Mendelson (the "Seller's Representative"), and any
<PAGE>
representation or warranty of the Seller is based upon those matters of which
the Seller's Representative has actual knowledge. Any knowledge or notice
given, had or received by any of Seller's agents, servants or employees shall
not be imputed to Seller, the general partner or limited partners of Seller,
the subpartners of the general partner or limited partners of Seller or
Seller's Representative.
16.2. Subject to the limitations set forth in Paragraph 16.1, Seller
hereby makes the following representations and warranties, which
representations and warranties are made to Seller's knowledge and which shall
not survive Closing: (i) 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 and deliver this Agreement and
consummate the transactions contemplated herein; and (iii) the rent roll
attached hereto as Exhibit L which Seller will update as of the Closing Date is
accurate as of the date set forth thereon.
16.3. Purchaser hereby represents and warrants to Seller that
Purchaser has the full right, power and authority to execute and deliver this
Agreement and consummate the transactions contemplated herein.
17. LIMITATION OF LIABILITY. Neither Seller, nor any Affiliate of Seller, nor
any of their respective beneficiaries, shareholders, partners, officers,
directors, agents or employees, heirs, successors or assigns shall have any
personal liability of any kind or nature for or by reason of any matter or
thing whatsoever under, in connection with, arising out of or in any way
related to this Agreement and the transactions contemplated herein, and
Purchaser hereby waives for itself and anyone who may claim by, through or
under Purchaser any and all rights to sue or recover on account of any such
alleged personal liability.
18. TIME OF ESSENCE. Time is of the essence of this Agreement.
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 A-200
Bannockburn, Illinois 60015
Attention: Ilona Adams
with copies to: The Balcor Company
Bannockburn Lake Office Plaza
2355 Waukegan Road
Suite A-200
Bannockburn, Illinois 60015
Attention: James Mendelson
(847) 317-4360
(847) 317-4462 (FAX)
<PAGE>
and to: Katten Muchin & Zavis
525 West Monroe Street
Suite 1600
Chicago, Illinois 60661-3693
Attention: Daniel J. Perlman, Esq.
(312) 902-5532
(312) 902-1061 (FAX)
TO PURCHASER: NCH Corporation
1037 South Alvernon Way, Suite 150
Tucson, AZ 85711
Attention: Randal G. Dix
(520) 322-6400
(520) 321-1800 (FAX)
and one copy to: Metheny, Mitchell, Davis & Klein
101 Park Avenue, Suite 200
Oklahoma City, OK 73102
Attention: Steven P. Metheny, Esq.
(405) 235-9300
(405) 235-9340 (FAX)
subject to the right of either party to designate a different address for
itself by notice similarly given. Any notice or demand so given shall be
deemed to be delivered or made on the next business day if sent by overnight
courier, or the same day as given if sent by facsimile transmission and
received by 5:00 p.m. Chicago time or on the 4th business day after the same is
deposited in the United States Mail as registered or certified matter,
addressed as above provided, with postage thereon fully prepaid. Any such
notice, demand or document not given, delivered or made by registered or
certified mail, by overnight courier or by facsimile transmission as aforesaid
shall be deemed to be given, delivered or made upon receipt of the same by the
party to whom the same is to be given, delivered or made. Copies of all
notices shall be served upon the Escrow Agent set forth in the Escrow
Agreement.
20. EXECUTION OF AGREEMENT AND ESCROW AGREEMENT. Purchaser will execute three
(3) copies of this Agreement and three (3) copies of the Escrow Agreement and
forward them to Seller for execution, accompanied with the Earnest Money
payable to the Escrow Agent set forth in the Escrow Agreement. Seller will
forward two (2) originals of the fully-executed Agreement and Escrow Agreement
to the Escrow Agent and the Escrow Agent will forward the following to the
Seller and Purchaser:
(A) Receipt for Earnest Money;
(B) One (1) fully executed original of this Agreement; and
(C) One (1) fully-executed copy of the Escrow Agreement.
21. GOVERNING LAW. The provisions of this Agreement shall be governed by the
laws of the State of Oklahoma, except that with respect to the retainage of the
Earnest Money as liquidated damages the laws of the State of Illinois shall
govern.
<PAGE>
22. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement between
the parties and supersedes all other negotiations, understandings and
representations made by and between the parties and the agents, servants and
employees.
23. COUNTERPARTS. This Agreement may be executed in multiple counterparts,
each of which shall be deemed an original but all of which shall constitute one
and the same instrument.
24. CAPTIONS. Paragraph titles or captions contained herein are inserted as a
matter of convenience and for reference, and in no way define, limit, extend or
describe the scope of this Agreement or any provision hereof.
IN WITNESS WHEREOF, the parties hereto have put their hand and seal as of
the date first set forth above.
PURCHASER:
NCH Corporation, an Arizona corporation
By: /s/ Michael J. Hanson
--------------------------------
Name: Michael J. Hanson
--------------------------------
Its: President
--------------------------------
SELLER:
Quail Lakes Investors Limited Partnership, an
Illinois limited partnership
By: Balcor Partners-XV, an Illinois general
partnership, its general partner
By: RGF-Balcor Associates-II, an Illinois
general partnership, a general partner
By: The Balcor Company, a Delaware
corporation, a general partner
By: /s/ James E. Mendelson
-----------------------------
Name: James E. Mendelson
-----------------------------
Its: Authorized Representative
-----------------------------
<PAGE>
[Quail Lakes Apartments]
Jeffery S. Barrett of CB Commercial Real Estate Group ("Seller's Broker")
executed this Agreement in its capacity as a real estate broker and
acknowledges that the fee or commission due it from Seller as a result of the
transaction described in this Agreement is as set forth in that certain Listing
Agreement, dated April 12, 1996 between Seller and Seller's Broker (the
"Listing Agreement"). Seller's Broker also acknowledges that payment of the
aforesaid fee or commission is conditioned upon the Closing and the receipt of
the Purchase Price by the Seller. Seller's Broker agrees to deliver a receipt
to the Seller at the Closing for the fee or commission due Seller's Broker and
a release, in the appropriate form, stating that no other fees or commissions
are due to it from Seller or Purchaser.
CB Commercial Real Estate Group, Inc.
By: /s/ Jeffery S. Barrett
------------------------------------
Senior Vice President
<PAGE>
Exhibits
A - Legal
B - Personal Property
C - Escrow Agreement
D - Title Commitment
E - Deed
F - Bill of Sale
G - Assignment and Assumption of Intangible Property
H - Service Contracts
I - Assignment and Assumption of Leases and Security Deposits
J - Non-Foreign Affidavit
K - Notice to Tenants
L - Rent Roll<PAGE>
TGM REALTY CORP. #5
650 FIFTH AVENUE -- 28TH FLOOR
NEW YORK, NEW YORK 10019
as of September 20, 1996
Chestnut Ridge I Limited Partnership and
8951 Randol Limited Partnership
c/o The Balcor Company
Bannockburn Lake Office Plaza
2355 Waukegan Road
Suite A200
Bannockburn, Illinois 60015
Attn: Ilona Adams
Re: Agreements of Sale dated as of August 30, 1996, as modified to date
(the "Agreements"), between Chestnut Ridge I Limited Partnership or
8951 Randol Limited Partnership, respectively (each, a "Seller" and
collectively, "Sellers"), and TGM Realty Corp. #5 ("Purchaser")
Premises: Chestnut Ridge I Apartments and
Chestnut Ridge II Apartments
Fort Worth, Tarrant County, Texas
- ------------------------------------------------------------------------------
Gentlemen:
Purchaser and each Seller hereby agree that the Agreements are modified as
follows, provided that terms used but not defined in this amendment shall have
the meanings provided in the Agreements.
1. Purchaser has asked the City of Fort Worth (the "City") to inspect
each Property and have certificates of occupancy for each building therein
issued after the Closing, and Sellers have consented thereto. The aggregate
inspection fee (of $2,080 for both Properties) is at Purchaser's cost and
expense.
2. If the City requires that repairs and/or replacements be made
(including without limitation by issuing a report or notices of violations)
then Purchaser and Sellers shall endeavor in good faith to agree in writing
upon the estimated aggregate costs of same. At Closing, Sellers shall pay
Purchaser the following portion of such aggregate agreed-upon costs in the form
of a credit in Purchaser's favor against the aggregate Purchase Prices:
(a) First $10,000 of such aggregate costs: Sellers shall pay none;
(b) Next $15,000 of such aggregate costs: Sellers shall pay all;
and
(c) All aggregate costs after the first $25,000: Sellers shall pay
50%.
<PAGE>
3. Notwithstanding the foregoing provisions to the contrary, if (a)
the total of such aggregate agreed-upon costs shall exceed $100,000 as stated
in such written agreement between Purchaser and Sellers, or (b) Purchaser and
the Sellers shall, notwithstanding their good faith efforts to do so, fail to
agree on the amount of such aggregate costs within ten (10) Business Days after
Purchaser shall have received the City's final report of required repairs and
replacements (or final report or notices of violations), or (c) the City shall
state in a writing received by Purchaser that the City shall not issue
certificates of occupancy for one or more buildings in the Properties, then,
unless Purchaser shall elect, by written notice to Sellers given within ten
(10) Business Days after the occurrence of either case (a), (b) or (c), to
continue the Agreements, the Agreements shall automatically terminate, all
Earnest Moneys shall be immediately refunded to Purchaser, and then Purchaser
and each Seller shall have no further liabilities or obligations one to the
other under the Agreements (including without limitation any and all
liabilities or obligations with respect to such City inspections or resulting
reports or notices of violations). If Purchaser timely gives such notice to
continue the Agreements, then, if the foregoing case (a) has occurred, the
Agreements shall nonetheless remain modified by Sections 1, 2, 4 and 5 of this
amendment; if the foregoing case (b) has occurred, this amendment shall no
longer be applicable except that the Agreements shall be modified solely by
Sections 4 and 5 of the amendment; and if the foregoing case (c) has occurred,
Purchaser shall be deemed to have accepted the consequences of the lack of such
certificates of occupancy and Seller shall have no liability therefor.
Further, if the City gives neither an initial report of required repairs and
replacements nor an initial report or notices of violations on or before
December 2, 1996, then, until the City gives such report or notice to Sellers
or Purchaser, either Purchaser or both Sellers may elect, by notice to the
other, to terminate the Agreements, and, upon such election, all Earnest Moneys
shall be immediately refunded to Purchaser, and then Purchaser and each Seller
shall have no further liabilities or obligations one to the other under the
Agreements (including without limitation any and all liabilities or obligations
with respect to such City inspections or resulting reports or notices of
violations).
4. The Closing Date under each Agreement is hereby extended to be the
date that is seven (7) Business Days after either (a) the date on which both
(i) the City shall have issued its final report of required repairs and
replacements (or final report or notices of violations) and (ii) Purchaser and
both Sellers shall have agreed in writing as to the estimated aggregate costs
of effecting all related repairs and replacements, or (b) the date that
Purchaser gives such notice to continue the Agreements, provided that if both
such dates (a) and (b) occur, then the Closing Date shall be seven (7) Business
Days after the later of such two dates.
5. Section 9B of each Agreement is hereby modified by adding the
following thereto at the end thereof: "; and a release from the Broker stating
that all fees or commissions due Broker have been paid in full by Seller and
that no other fees or commissions are due to the Broker by Purchaser."
<PAGE>
6. Except as modified hereby, the Agreements remain unmodified and in
full force and effect.
7. This amendment may be executed in any number of counterparts, each of
which shall, when executed, be deemed to be an original and all of which shall
be deemed to be one and the same instrument. In addition, the parties may
execute separate signature pages, and such signature pages (and/or signature
pages that have been detached from one or more duplicate original copies of
this amendment) may be combined and attached to one or more copies of this
amendment so that such copies shall contain the signatures of all of the
parties thereto. A party hereto may rely upon a telecopy (fax) of a
counterpart of this amendment that has been executed by any other party, or a
photocopy thereof.
Very truly yours,
TGM REALTY CORP. #5, a Delaware corporation
By:
-------------------------------------------------
Steven C. Macy, Executive Vice President
AGREED:
CHESTNUT RIDGE I LIMITED PARTNERSHIP,
an Illinois limited partnership
By: Chestnut Ridge of Illinois, Inc., an Illinois
corporation, its general partner
By: /s/ James E. Mendelson
-------------------------------------
Name: James E. Mendelson
Title: Authorized Rep.
8951 RANDOL LIMITED PARTNERSHIP, an
Illinois limited partnership
By: 8951 Randol of Illinois, Inc., an Illinois
corporation, its general partner
By: /s/ James E. Mendelson
-----------------------------------
Name: James E. Mendelson
Title: Authorized Rep.
<PAGE>
AGREEMENT OF SALE
THIS AGREEMENT, entered into as of the 24th day of October, 1996, by and
between CEEBRAID-SIGNAL CORPORATION, a Florida corporation ("Purchaser") and
COURTYARDS OF KENDALL LIMITED PARTNERSHIP, an Illinois Limited Partnership
("Seller").
WITNESSETH:
1. PURCHASE AND SALE. Purchaser agrees to purchase and Seller agrees to
sell at the price of Eleven Million Three Hundred Ten Thousand and No/100
Dollars ($11,310,000.00) ("Purchase Price"), that certain real property in Dade
County, Florida, more particularly described on Exhibit A attached hereto,
which Property is known as Courtyards of Kendall Apartments, together with all
easements, permits, development rights, leases, and appurtenances thereto and
improvements thereon (the "Real Property"). Included in the Purchase Price is
all of the personal property set forth on Exhibit B (the "Personal Property"),
which shall be transferred to Purchaser at Closing (as hereinafter defined) by
a Bill of Sale. The Real Property and the Personal Property are hereinafter
collectively referred to as the "Property".
2. PURCHASE PRICE. The Purchase Price shall be paid as follows:
a. Upon the execution of this Agreement, the sum of $150,000.00
("Earnest Money") to be held in escrow by the Escrow Agent (as that term is
defined in the Escrow Agreement), by and in accordance with the provisions of
the Escrow Agreement ("Escrow Agreement") attached hereto as Exhibit C;
b. On the Closing Date (as hereinafter defined), $11,310,000.00
(inclusive of all Earnest Money) adjusted in accordance with the prorations by
federally wired "immediately available" funds delivered to the Title Insurer
(as hereinafter defined) no later than 12:00 Noon Central Time on the Closing
Date. If the funds are not received by 12:00 Noon Central Time, then on the
Closing Date, Purchaser shall pay Seller an amount equal to any additional
mortgage per diem interest costs incurred by the Seller.
3. TITLE COMMITMENT AND SURVEY.
a. Attached hereto as Exhibit D is a title commitment dated
September 17, 1996 ("Title Commitment") for an owner's marketability title
insurance policy ("Title Policy") issued by Chicago Title Insurance Company
("Title Insurer"). The owner's Title Policy issued at Closing will be in the
amount of the Purchase Price subject only to real estate taxes not yet due and
payable, and the special title exceptions set forth in Schedule B-Section 2,
Numbers 5 through 11 inclusive, of the Title Commitment. All of the above are
herein referred to as the "Permitted Exceptions". On the Closing Date, Seller
shall cause the Title Insurer to issue the Title Policy or a "marked up"
commitment in conformity with the Title Commitment. Purchaser and Seller shall
equally share the costs of the Title Policy; however, Purchaser shall pay for
"extended coverage" and any special endorsements which Purchaser requires.
b. Purchaser acknowledges receipt of a survey ("Survey") of the
Property prepared by C.C.L. Consultants, Inc. revised as of April 23, 1996, and
Purchaser approves all of the matters set forth on the Survey. If Purchaser
<PAGE>
requires an updated Survey, Purchaser shall order and pay for same. Purchaser
shall order the updated Survey no later than three days after the execution of
this Agreement. If the updated Survey reflects matters which are not on the
Survey and such matters are encroachments over utility easements or setback
lines or violations of front, rear or sideyard setbacks (collectively, "Survey
Defects"), then Purchaser can elect to terminate this Agreement upon notice to
Seller within five (5) business days after Purchaser's receipt of the updated
Survey. In the event of such termination, then the Earnest Money plus all
accrued interest shall be delivered to the Purchaser.
4. CONDITION OF TITLE/CONVEYANCE. Seller agrees to convey fee simple
title to the Property by Special Warranty Deed ("Deed") in recordable form
subject only to the Permitted Exceptions. If Seller is unable to convey title
to the Property subject only to the Permitted Exceptions because of the
existence of an additional title exception ("Unpermitted Exception"), then
Purchaser can elect to take title to the Property subject to the Unpermitted
Exception or terminate this Agreement. If Purchaser elects to terminate this
Agreement, then the Earnest Money plus all accrued interest shall be delivered
to the Purchaser.
5. PAYMENT OF CLOSING COSTS. Seller shall pay the costs of all
documentary stamps to be paid with reference to the Deed and all other stamps,
intangible, documentary, recording, sales tax and surtax imposed by law with
reference to any other documents delivered in connection with this Agreement.
Seller also shall pay for the recording charges pertaining to any instruments
required to cure title defects. Purchaser shall pay for all recording and
mortgage stamps with reference to any mortgage Purchaser obtains.
6. DAMAGE, CASUALTY AND CONDEMNATION.
a. If the Property suffers damage as a result of any casualty prior
to the Closing Date and can be repaired or restored in the case of real
property for $250,000 or less, or in the case of Personal Property, for $10,000
or less, then Seller shall commence the repair or restoration in an expeditious
manner, in which event the Closing Date will be extended until such date as may
reasonably be required to complete the repair or restoration. Seller shall
retain all insurance proceeds. If the cost of repair or restoration exceeds
that amount, then either party can elect to terminate this Agreement by notice
to the other party within fifteen (15) days after receipt of notice of the
casualty. If neither party elects to terminate, then Purchaser shall elect,
within the aforesaid fifteen (15) day period to either (i) require Seller to
repair and restore same, in which event the Closing Date will be extended until
such date as may reasonably be required to complete the repair or restoration,
but in no event shall the Closing be extended for more than ninety (90) days or
(ii) accept the Property in its damaged condition together with an assignment
from Seller of all insurance proceeds and receive a credit at Closing in the
amount of the deductible.
b. If condemnation proceedings ("Proceedings") are instituted
against the Property, then Purchaser can elect to either take the Property
subject to the Proceedings and an assignment of Seller's interest in the
Proceedings or terminate this Agreement. If Purchaser elects to terminate this
Agreement, it shall be by notice to the Seller within five (5) days after
Seller notifies Purchaser of the Proceedings.
<PAGE>
c. If the Agreement is terminated pursuant to this Paragraph, then
the Earnest Money plus all accrued interest shall be delivered to the
Purchaser.
7. AS-IS CONDITION.
a. Purchaser acknowledges and agrees that it will be purchasing the
Property based solely upon its inspection and investigations of the Property
and that Purchaser will be purchasing the Property "AS IS" and "WITH ALL
FAULTS" based upon the condition of the Property as of the date of this
Agreement, subject to reasonable wear and tear from the date of this Agreement
until the Closing Date. Without limiting the foregoing, Purchaser acknowledges
that, except as may otherwise be specifically set forth elsewhere in this
Agreement, neither Seller nor its consultants, brokers or agents have made any
other representations or warranties of any kind upon which Purchaser is relying
as to any matters concerning the Property, including, but not limited to, the
condition of the land or any improvements, the existence or nonexistence of
asbestos, lead in water, lead in paint, radon, underground or above ground
storage tanks, petroleum, toxic waste or any Hazardous Materials or Hazardous
Substances (as such terms are defined below), the tenants of the Property or
the leases affecting the Property, economic projections or market studies
concerning the Property, any development rights, taxes, bonds, covenants,
conditions and restrictions affecting the Property, water or water rights,
topography, drainage, soil, subsoil of the Property, the utilities serving the
Property or any zoning, environmental or building laws, rules or regulations
affecting the Property. Seller makes no representation that the Property
complies with Title III of the Americans With Disabilities Act or any fire
codes or building codes. Purchaser hereby releases Seller from any and all
liability in connection with any claims which Purchaser may have against
Seller, and Purchaser hereby agrees not to assert any claims, for damage, loss,
compensation, contribution, cost recovery or otherwise, against Seller, whether
in tort, contract, or otherwise, relating directly or indirectly to the
existence of asbestos or Hazardous Materials or Hazardous Substances on, or
environmental conditions of, the Property, or arising under the Environmental
Laws (as such term is hereinafter defined), or relating in any way to the
quality of the indoor or outdoor environment at the Property. This release
shall survive the Closing. As used herein, the term "Hazardous Materials" or
"Hazardous Substances" means (i) hazardous wastes, hazardous materials,
hazardous substances, hazardous constituents, toxic substances or related
materials, whether solids, liquids or gases, including but not limited to
substances defined as "hazardous wastes," "hazardous materials," "hazardous
substances," "toxic substances," "pollutants," "contaminants," "radioactive
materials," or other similar designations in, or otherwise subject to
regulation under, the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended ("CERCLA"), 42 U.S.C. Section 9601 et seq.;
the Toxic Substance Control Act ("TSCA"), 15 U.S.C. Section 2601 et seq.; the
Hazardous Materials Transportation Act, 49 U.S.C. Section 1802; the Emergency
Planning and Community Right-to-Know Act, 42 U.S.C. Section 1101 et seq.; the
Atomic Energy Act ("AEA"), 42 U.S.C. Section 2011 et seq.; the Resource
Conservation and Recovery Act ("RCRA"), 42 U.S.C. Section 9601, et seq.; the
Clean Water Act ("CWA"), 33 U.S.C. Section 1251 et seq.; the Safe Drinking
Water Act, 42 U.S.C. Section 300f et seq.; the Clean Air Act ("CAA"), 42 U.S.C.
Section 7401 et seq.; and in any permits, licenses, approvals, plans, rules,
<PAGE>
regulations or ordinances adopted, or other criteria and guidelines promulgated
pursuant to the preceding laws or other similar federal, state or local laws,
regulations, rules or ordinance now or hereafter in effect relating to
environmental matters (collectively the "Environmental Laws"); and (ii) any
other substances, constituents or wastes subject to any applicable federal,
state or local law, regulation or ordinance, including any Environmental Law,
now or hereafter in effect, including but not limited to (A) petroleum,
(B) refined petroleum products, (C) waste oil, (D) waste aviation or motor
vehicle fuel, (E) asbestos, (F) lead in water, paint or elsewhere, (G) radon,
(H) Polychlorinated Biphenyls (PCB's) and (I) ureaformaldehyde.
b. Seller has provided to Purchaser certain unaudited historical
financial information regarding the Property relating to certain periods of
time in which Seller owned the Property. Seller and Purchaser hereby
acknowledge that such information has been provided to Purchaser at Purchaser's
request solely as illustrative material. Seller makes no representation or
warranty that such material is complete or accurate or that Purchaser will
achieve similar financial or other results with respect to the operations of
the Property, it being acknowledged by Purchaser that Seller's operation of the
Property and allocations of revenues or expenses may be vastly different than
Purchaser may be able to attain. Purchaser acknowledges that it is a
sophisticated and experienced purchaser of real estate and further that
Purchaser has relied upon its own investigation and inquiry with respect to the
operation of the Property and releases Seller from any liability with respect
to such historical information.
8. CLOSING. The closing ("Closing") of this transaction shall be on
December 16, 1996 ("Closing Date"), at the office of the Title Insurer, at
which time Seller shall deliver possession of the Property to Purchaser.
9. CLOSING DOCUMENTS.
a. On the Closing Date, Purchaser shall deliver to Seller an
executed closing statement, the balance of the Purchase Price, and such other
documents as may be reasonably required in order to consummate the transaction
as set forth in this Agreement.
b. On the Closing Date, Seller shall deliver to Purchaser
possession of the Property; the Deed (in the form of Exhibit E attached hereto)
subject to the Permitted Exceptions and those Unpermitted Exceptions waived by
Purchaser; an inventory of the Personal Property and a Bill of Sale for the
same (in the form of Exhibit F attached hereto); an executed closing statement;
an executed assignment and assumption of all service contracts ("Service
Contracts") (in the form of Exhibit G attached hereto); an executed assignment
and assumption of all leases ("Leases") and security deposits (in the form of
Exhibit H attached hereto); updated Rent Roll (as that term is hereinafter
defined); a notice to the tenants of the transfer of title and the assumption
by Purchaser of the landlord's obligations under the leases and the obligation
to refund the security deposits (in the form of Exhibit I attached hereto); a
non-foreign affidavit (in the form of Exhibit J attached hereto) and such other
documents as may be reasonably required by the Title Insurer in order to
consummate the transaction as set forth in this Agreement.
<PAGE>
10. DEFAULT BY PURCHASER. ALL EARNEST MONEY DEPOSITED INTO THE ESCROW IS
TO SECURE THE TIMELY PERFORMANCE BY PURCHASER OF ITS OBLIGATIONS AND
UNDERTAKINGS UNDER THIS AGREEMENT. IN THE EVENT OF ANY DEFAULT OF THE
PURCHASER UNDER THE PROVISIONS OF THIS AGREEMENT, SELLER SHALL RETAIN ALL OF
THE EARNEST MONEY AND THE INTEREST THEREON AS SELLER'S SOLE RIGHT TO DAMAGES OR
ANY OTHER REMEDY. THE PARTIES HAVE AGREED THAT SELLER'S ACTUAL DAMAGES, IN THE
EVENT OF A DEFAULT BY PURCHASER, WOULD BE EXTREMELY DIFFICULT OR IMPRACTICAL TO
DETERMINE. THEREFORE, BY PLACING THEIR INITIALS BELOW, THE PARTIES ACKNOWLEDGE
THAT THE EARNEST MONEY HAS BEEN AGREED UPON, AFTER NEGOTIATION, AS THE PARTIES'
REASONABLE ESTIMATE OF SELLER'S DAMAGES.
11. SELLER'S DEFAULT. IF THIS SALE IS NOT COMPLETED BECAUSE OF SELLER'S
DEFAULT, PURCHASER'S SOLE REMEDY SHALL BE THE RIGHT TO RECOVER ACTUAL THIRD
PARTY COSTS INCURRED IN CONDUCTING ITS INVESTIGATION DURING THE APPROVAL PERIOD
INCLUDING REASONABLE ATTORNEY'S FEES AND COSTS IN AN AMOUNT NOT TO EXCEED
$150,000.00 AND THE RETURN OF ALL EARNEST MONEY TOGETHER WITH ANY INTEREST
ACCRUED THEREON, AND THIS AGREEMENT SHALL TERMINATE AND THE PARTIES SHALL HAVE
NO FURTHER LIABILITY TO EACH OTHER AT LAW OR IN EQUITY. NOTWITHSTANDING
ANYTHING CONTAINED HEREIN TO THE CONTRARY, IF SELLER'S DEFAULT IS ITS REFUSAL
TO DELIVER THE DEED OR THE DOCUMENTS REQUIRED TO BE DELIVERED AT CLOSING, THEN
PURCHASER WILL BE ENTITLED TO SUE FOR SPECIFIC PERFORMANCE.
12. a. PRORATIONS. Rents (exclusive of delinquent rents, but including
prepaid rents); refundable security deposits (which will be assigned to and
assumed by Purchaser and credited to Purchaser at Closing); water and other
utility charges; fuels; prepaid operating expenses; management fees in the
amount of 5% of collections; real and personal property taxes; and other
similar items shall be adjusted ratably as of 12:01 A.M. on the Closing Date
("Proration Date"), and credited or debited to the balance of the cash due at
Closing. If for any reason the Proration Date is earlier than the Closing
Date, then for the period from the Proration Date through the Closing Date,
Purchaser shall be entitled to the benefit of all of the income from the
Property and shall bear the burden of all of the operating expenses of the
Property, including, but not limited to, insurance, service contracts, employee
wages and benefits, management fees, utility costs and interest on the existing
mortgages encumbering the Property (if any). If the amount of any of the items
to be prorated is not then ascertainable, the adjustment thereof shall be on
the basis of the most recent ascertainable data. All prorations will be final
except as to Delinquent Rents referred to in b below. If special assessments
have been levied against the Property for completed improvements, then the
amount of any installments which are due prior to the Closing Date shall be
paid by the Seller; and the amount of installments which are due after the
Closing Date shall be paid by the Purchaser. All assessments for incomplete
improvements shall be paid by Purchaser.
b. DELINQUENT RENTS. If, as of the Closing Date, any rent is in
arrears ("Delinquent Rent") for the calendar month in which the Closing occurs,
then Seller's pro rata share of the first rent collected by Purchaser during
the calendar month in which the Closing occurs will be delivered to Seller for
the Delinquent Rent. If Delinquent Rent is in arrears for a period prior to
the calendar month in which the Closing occurs, then rents collected by
Purchaser shall first be applied to current rent and then to Delinquent Rent.
Purchaser shall deliver Seller's pro rata share within 10 days of Purchaser's
<PAGE>
receipt of that Delinquent Rent. This subparagraph of this Agreement shall
survive the Closing and the delivery and recording of the Deed. Purchaser
shall have no obligation to actively pursue collection of Delinquent Rent which
is in arrears for more than thirty (30) days.
13. RECORDING. This Agreement shall not be recorded and the act of
recording by Purchaser shall be an act of default hereunder by Purchaser and
shall be subject to the provisions of Paragraph.
14. ASSIGNMENT. The Purchaser shall not have the right to assign its
interest in this Agreement without the prior written consent of the Seller.
Any assignment or transfer of, or attempt to assign or transfer, Purchaser's
interest in this Agreement shall be an act of default hereunder by Purchaser
and subject to the provisions of Paragraph 10. Seller hereby consents to an
assignment to an entity in which Purchaser has an interest, provided such
assignment is effected at least ten (10) business days prior to the Closing
Date. However, Purchaser shall remain liable for all of the Purchaser's
obligations and undertakings set forth in this Agreement and the exhibits
attached hereto.
15. BROKER. The parties hereto acknowledge that CB Commercial Real
Estate Group, Inc. ("Broker") is the only real estate broker involved in this
transaction. Seller agrees to pay Broker a commission or fee ("Fee") pursuant
to a listing agreement between Seller and Broker. However, this Fee is due and
payable only from the proceeds of the Purchase Price received by Seller.
Purchaser agrees to indemnify, defend and hold harmless the Seller and any
partner, affiliate, parent of Seller, and all shareholders, employees, officers
and directors of Seller or Seller's partner, parent or affiliate (each of the
above is individually referred to as a "Seller Indemnitee") from all claims,
including attorneys' fees and costs incurred by a Seller Indemnitee as a result
of anyone's claiming by or through Purchaser any fee, commission or
compensation on account of this Agreement, its negotiation or the sale hereby
contemplated. Purchaser does now and shall at all times consent to a Seller
Indemnitee's selection of defense counsel. Seller agrees to indemnify, defend
and hold harmless the Purchaser and all shareholders, employees, officers and
directors of Purchaser or Purchaser's parent or affiliate (each of the above is
individually referred to as a "Purchaser Indemnitee") from all claims,
including attorneys' fees and costs incurred by a Purchaser Indemnitee as a
result of anyone's claiming by or through Seller any fee, commission or
compensation on account of this Agreement, its negotiation or the sale hereby
contemplated. Seller does now and shall at all times consent to a Purchaser
Indemnitee's selection of defense counsel.
16. DOCUMENTS, INSPECTION OF PROPERTY AND APPROVAL PERIOD.
a. Seller has delivered to Purchaser copies of the most recent
available tax bills, rent rolls, insurance premiums, and service contracts
(collectively the "Documents"). All of the Documents shall be subject to
approval by Purchaser by the close of business (5:00 P.M. Central Daylight
Time) on November 11, 1996 ("Approval Period"). During the Approval Period,
upon reasonable notice to the Seller, the Purchaser shall have the right to
inspect and approve the condition of the Property including the interior of the
apartments, during normal business hours. Purchaser, its engineers,
architects, employees, contractors and agents shall maintain public liability
<PAGE>
insurance policies insuring against claims arising as a result of the
inspections of the Property being conducted by Purchaser. Prior to commencing
any tests, studies and investigations, Purchaser shall deliver to Seller a
certificate of insurance evidencing the existence of the aforesaid policies and
naming Seller as an additional insured. Purchaser agrees to indemnify, defend,
protect and hold Seller harmless from any and all loss, costs, including
attorneys' fees, liability or damages which Seller may incur or suffer as a
result of Purchaser's conducting its inspection and investigation of the
Property including the entry of Purchaser, its employees or agents and its
lender onto the Property, including without limitation, liability for
mechanics' lien claims.
b. Purchaser agrees to defend and hold Seller harmless from any
injuries, damages or claims of any nature whatsoever which Purchaser's
servants, agents or employees may have as a result of Purchaser's inspection of
the Property. Purchaser further agrees to restore any damage to the Property
which may arise as a result of Purchaser's inspection of the Property.
c. If Purchaser disapproves the Documents or the condition of the
Property in Purchaser's sole and absolute discretion, it must be by a notice
("Notice of Disapproval") delivered to Seller and the Escrow Agent prior to the
expiration of the Approval Period. Upon receipt of the Notice of Disapproval,
the Earnest Money plus the interest accrued thereon shall be returned to the
Purchaser. If Purchaser does not deliver a Notice of Disapproval to Seller,
then it shall be conclusively presumed that Purchaser has approved the
Documents and the condition of the Property.
17. SURVIVAL OF INDEMNITIES. Notwithstanding anything in this Agreement
to the contrary, each parties' obligation to indemnify, defend and hold the
other party harmless under various provisions of this Agreement shall forever
survive the termination of this Agreement or the Closing and delivery and
recording of the Deed.
18. SELLER'S REPRESENTATIONS, WARRANTIES AND COVENANTS.
a. Any reference herein to Seller's knowledge, representation,
warranty or notice of any matter or thing, shall only mean such knowledge or
notice that has actually been received by Michael Becker, the asset manager of
the Property, and any representation or warranty of the Seller is based upon
those matters of which Michael Becker has actual knowledge. Any knowledge or
notice given, had or received by any of Seller's agents, servants or employees
shall not be imputed to Seller or the individual partners or the general
partner of Seller.
b. Subject to the limitations set forth in subparagraph a above,
Seller hereby makes the following representations, warranties and covenants,
all of which are made to the best of Seller's knowledge, none of which shall
survive the Closing and delivery of the Deed:
i. The present use and occupancy of the Property conform with
applicable building and zoning laws and Seller has received no written notice
that any such laws, rules or regulations are being violated.
ii. The rent roll ("Rent Roll") attached hereto as Exhibit K
which will be updated as of the Closing Date is true and accurate.
<PAGE>
iii. Seller has no knowledge of any pending or threatened
litigation, claim, cause of action or administrative proceeding concerning the
Property.
iv. The Seller is an Illinois limited partnership in good
standing and its general partner is an Illinois corporation in good standing.
v. The execution of this Agreement and completion of the
transaction contemplated herein shall not constitute a default under any other
agreements by which Seller is bound.
vi. Seller has not made any prior assignment of the Service
Contracts. No other third party has a beneficial interest in the Service
Contracts.
vii. The Service Contracts listed on the Assignment of Service
Contracts are the only service contracts affecting the Property.
viii. The Service Contracts are in full force and effect and
Seller does not know of the existence of any default under any of the Service
Contracts.
ix. Seller has not made any prior assignment of the Leases. No
other third party has a beneficial interest in the Leases.
x. The Leases listed on the Rent Roll attached hereto are the
only Leases affecting the Property.
xi. Except as may be set forth on the delinquency report
attached to the Rent Roll to be delivered on the Closing Date, all of the
Leases will be in full force and effect and not in default.
c. Covenants.
i. The management, operation, leasing and maintenance of the
Property, as presently conducted by the Seller, shall continue until the
Closing Date.
ii. Seller shall notify Purchaser of any material change in the
Personal Property after the date of this Agreement.
19. SELLER'S RIGHT TO CURE. If on or prior to the Closing Date,
Purchaser discovers that any representation or warranty of Seller is untrue or
misleading in any material respect or that Seller is in default under this
Agreement or that Seller has failed to perform a required covenant
(individually or collectively, a "Breach"), then Purchaser shall give Seller
notice of such Breach. Upon receipt of notice from Purchaser, Seller shall
have ten (10) days in order to cure such Breach and, if necessary, the Closing
Date shall be extended accordingly. If, after making all reasonable efforts,
Seller is unable to cure the Breach, then Purchaser shall elect by notice to
Seller to either waive the Breach or terminate this Agreement. In the event of
termination, all Earnest Money plus the interest accrued thereon shall be
returned to Purchaser. If Purchaser fails to give Seller notice of a Breach,
then Purchaser shall have waived its rights to assert any claims for such
Breach.
<PAGE>
20. ENVIRONMENTAL REPORT. Attached to this Agreement as Exhibit L is the
following report ("Environmental Report") of the Property, which Seller is
delivering to Purchaser, at Purchaser's request: Phase I Environmental Site
Assessment and Limited Asbestos Survey prepared by Law Associates, Inc. dated
October 21, 1991. Seller makes no representation or warranty that the
Environmental Report is accurate or complete. Purchaser hereby releases Seller
from any liability whatsoever with respect to the Environmental Report,
including, without limitation, the matters set forth in the Environmental
Report or the accuracy and/or completeness of the Environmental Report.
21. LIMITATION OF SELLER'S LIABILITY. No general or limited partner of
Seller, nor any of its respective beneficiaries, shareholders, partners,
officers, agents, employees, heirs, successors or assigns shall have any
personal liability of any kind or nature for or by reason of any matter or
thing whatsoever under, in connection with, arising out of or in any way
related to this Agreement and the transactions contemplated herein, and
Purchaser hereby waives for itself and anyone who may claim by, through or
under Purchaser any and all rights to sue or recover on account of any such
alleged personal liability.
22. PURCHASER'S ORGANIZATIONAL DOCUMENTS. At least ten (10) days prior
to the Closing Date, Purchaser will provide Seller's attorney with copies of
its organizational documents, including a certified copy of its recorded
certificate of limited partnership and a true copy of its Partnership Agreement
or a certified copy of its Articles of Incorporation, corporate resolutions
authorizing the transaction, and an incumbency certificate, whichever is
applicable.
23. TIME OF ESSENCE. Time is of the essence of this Agreement.
24. NOTICES. Any notice or demand which either party hereto is required
or may desire to give or deliver to or make upon the other party shall be in
writing and may be personally delivered or given or made by overnight courier
such as Federal Express or by facsimile or made by United States registered or
certified mail addressed as follows:
TO SELLER: c/o The Balcor Company
2355 Waukegan Road
Suite A200
Bannockburn, Illinois 60015
Attn: Ilona Adams
with copies to: The Balcor Company
2355 Waukegan Road
Suite A200
Bannockburn, Illinois 60015
Attn: James Mendelson
847/267-1600
847/317-4462 (FAX)
<PAGE>
and
Morton M. Poznak
Schwartz & Freeman
Suite 1900
401 North Michigan Avenue
Chicago, Illinois 60611
312/222-0800
312/222-0818 (FAX)
TO PURCHASER: Richard Schlesinger
Ceebraid-Signal Corporation
250 Australian Avenue South
Suite 1003
West Palm Beach, Florida 33401
561/835-4003
561/835-8356 (FAX)
with a copy to: Howard Bregman
David Layman
Greenberg, Traurig
777 S. Flagler Drive
Suite 310 East
West Palm Beach, Florida 33401
561/650-7900
561/655-6222 (FAX)
subject to the right of either party to designate a different address for
itself by notice similarly given. Any notice or demand so given shall be
deemed to be delivered or made on the next business day if sent by overnight
courier, or on the same day if sent by facsimile before the close of business,
or the next day if sent by facsimile after the close of business, or on the 4th
business day after the same is deposited in the United States Mail as
registered or certified matter, addressed as above provided, with postage
thereon fully prepaid. Any such notice, demand or document not given,
delivered or made by registered or certified mail or by overnight courier or by
facsimile as aforesaid shall be deemed to be given, delivered or made upon
receipt of the same by the party to whom the same is to be given, delivered or
made. Copies of all notices shall be served upon the Escrow Agent.
25. EXECUTION OF AGREEMENT AND ESCROW AGREEMENT. Purchaser will execute
three (3) copies of this Agreement and three (3) copies of the Escrow Agreement
and forward them to Seller for execution, accompanied with the Earnest Money
payable to the Escrow Agent. Seller will forward one (1) copy of the executed
Agreement to Purchaser and will forward the following to the Escrow Agent:
a. Earnest Money;
b. One (1) fully executed copy of this Agreement; and
c. Three (3) copies of the Escrow Agreement signed by the parties
with a direction to execute two (2) copies of the Escrow Agreement and deliver
a fully executed copy to the Purchaser and the Seller.
26. GOVERNING LAW. The provisions of this Agreement shall be governed by
the laws of the State of Florida.
<PAGE>
27. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
between the parties and supersedes all other negotiations, understandings and
representations made by and between the parties and the agents, servants and
employees.
28. COUNTERPARTS. This Agreement may be executed in multiple
counterparts, each of which shall be deemed an original but all of which shall
constitute one and the same instrument.
29. CAPTIONS. Paragraph titles or captions contained herein are inserted
as a matter of convenience and for reference, and in no way define, limit,
extend or describe the scope of this Agreement or any provision hereof.
30. RADON GAS. Radon is a naturally occurring radioactive gas that, when
it has accumulated in a building in sufficient quantities, may present health
risks to persons who are exposed to it over time. Levels of radon that exceed
federal and state guidelines have been found in buildings in Florida.
Additional information regarding radon and radon testing may be obtained from
your county public health unit.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have put their hand and seal as of
the date set forth above.
Executed by Purchaser on PURCHASER:
10/21 , 1996.
- ----------------- CEEBRAID-SIGNAL CORPORATION,
a Florida corporation
By: /s/ Richard Schlesingen
-------------------------------
Richard Schlesingen
Managing Director
Executed by Seller on SELLER:
10-24-96 , 1996.
- ---------------- COURTYARDS OF KENDALL LIMITED
PARTNERSHIP, an Illinois limited partnership
By: Balcor Partners-XV, an Illinois general
partnership, its general partner
By: RGF-Balcor Associates-II, an Illinois
general partnership, a general partner
By: The Balcor Company, a Delaware
corporation, a general partner
By: /s/ John K. Powell, Jr.
------------------------------
Courtyards of Kendall
CB Commercial Real Estate Group, Inc. ("Broker") executes this Agreement in its
capacity as a real estate broker and acknowledges that the fee or commission
("Fee") due to it as a result of the transaction described in this Agreement is
the amount as set forth in the listing agreement between Broker and Seller.
Broker also acknowledges that payment of the aforesaid Fee is conditioned upon
the Closing and the receipt of the Purchase Price by the Seller. Broker agrees
to deliver a receipt to the Seller at the Closing for the Fee and a release
stating that no other fees or commissions are due to Broker from Seller or
Purchaser.
CB COMMERCIAL REAL ESTATE GROUP,
INC.
By:
--------------------------------------
<PAGE>
EXHIBITS
A - Legal
B - Personal Property
C - Escrow Agreement
D - Title Commitment
E - Deed
F - Bill of Sale
G - Assignment of Service Contracts
H - Assignment of Leases and Security Deposits
I - Notice to Tenants
J - Non-Foreign Affidavit
K - Rent Roll
L - Environmental Report
<PAGE>
