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) April 2, 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
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ITEM 2. ACQUISITION OR DISPOSITION OF ASSETS
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Antlers Apartments
In 1983, the Partnership acquired the Antlers Apartments, Jacksonville,
Florida, utilizing approximately $6,219,720 in offering proceeds. The property
was acquired subject to first mortgage financing of approximately $11,683,000.
Pursuant to a 1993 modification, the outstanding loan balance was increased to
approximately $11,915,000.
On April 2, 1996, the Partnership contracted to sell the property for a sale
price of $15,000,000 to an unaffiliated party, United Dominion Realty Trust,
Inc., a Virginia corporation (the "Purchaser"). The Purchaser has deposited
$200,000 into an escrow account as earnest money. The Purchaser is expected to
take title to the property subject to the existing first mortgage loan which is
expected to have an outstanding balance of approximately $10,108,860 at
closing. The remaining portion of the sale price will be payable in cash at
closing, scheduled to be held on May 7, 1996. Neither the General Partner, its
affiliates nor any unaffiliated party will receive a commission in connection
with the sale of the property. The General Partner will be reimbursed by the
Partnership for actual expenses incurred in connection with the sale.
The closing is subject to the satisfaction of numerous terms and conditions,
including the consent of the first mortgage holder. 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.
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ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS
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(a) FINANCIAL STATEMENTS AND EXHIBITS:
None
(B) PRO FORMA FINANCIAL INFORMATION:
None
(C) EXHIBITS:
(2) (a) Agreement of Sale relating to the sale of the
Antlers apartment complex.
No information is required under Items 1, 3, 4, 5, 6 and 8 and these items
have, therefore, been omitted.
Signature
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Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this Report to be signed on its behalf by the
undersigned hereunto duly authorized.
BALCOR 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: April 16, 1996
<PAGE>
AGREEMENT OF SALE
THIS AGREEMENT, entered into as of the 29th day of March, 1996, by and between
UNITED DOMINION REALTY TRUST, INC., a Virginia corporation ("Purchaser") and
ANTLER INVESTORS, an Illinois Limited Partnership, beneficiary under Land Trust
No. 21-00201-5 a/k/a 2401-0091-00 held by City National Bank of Florida, a
national banking association ("Seller").
WITNESSETH:
1. PURCHASE AND SALE. Purchaser agrees to purchase and Seller agrees to sell
at the price of Fifteen Million and No/100 Dollars ($15,000,000.00) ("Purchase
Price"), that certain property ("Property") in Jacksonville, Florida, more
particularly described on Exhibit A attached hereto, which Property is known as
Antlers Apartments. Included in the Purchase Price is all of the personal
property set forth on Exhibit B, which shall be transferred to Purchaser at
Closing (as hereinafter defined) by a Bill of Sale.
2. PURCHASE PRICE. The Purchase Price shall be paid as follows:
a. Within one (1) business day after Purchaser receives a fully executed
Agreement, the sum of $200,000.00 ("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. By taking title to the Property subject to the existing first
mortgage ("First Mortgage") for the benefit of John Hancock Mutual Life
Insurance Company ("Lender"), which secures a note to the benefit of Lender in
the amended principal amount of $10,500,000.00 and a note in the amount of
$232,334.23 (collectively, "First Note"). The unpaid principal balance on the
First Note as of the Closing Date (as hereinafter defined) will be
approximately $10,108,860.00 (after the May 1, 1995 payment); and
c. On the Closing Date (as hereinafter defined), $4,891,140.00
(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 on the Closing Date. If the
funds are not received by 12:00 Noon, then, on the Closing Date, Purchaser
shall pay Seller an amount equal to any additional mortgage per diem interest
costs incurred by the Seller. If the balance of the First Note as of the
Closing Date is different from the amount set forth in Paragraph b above, then
the cash due at Closing will be adjusted accordingly.
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3. UNDERLYING OBLIGATIONS. A list of the First Note and First Mortgage
Documents is attached hereto as Exhibit S. The First Note and First Mortgage
Documents are sometimes hereinafter referred to as the "Existing Note" and
"Existing Encumbrance". If the First Mortgage Documents require that the
Lender consent to the conveyance provided for in this Agreement, then Seller's
and Purchaser's obligations hereunder are subject to receipt of the consent
("Consent"). The Seller and the Purchaser agree to execute the documents
required by the Lender in order to obtain Lender's Consent, provided that
Purchaser will not assume any personal liability for the indebtedness. If the
Consent is not received by Seller within five (5) days prior to the Closing
Date, then either party shall have the right upon notice to the other party
delivered not less than three (3) days prior to the Closing Date to terminate
this Agreement. In the event of termination of this Agreement, all the Earnest
Money plus all accrued interest shall be delivered to the Purchaser.
4. TITLE COMMITMENT AND SURVEY.
a. Attached hereto as Exhibit C is a title commitment with an effective
date of March 11, 1996 ("Title Commitment") for an owner's standard coverage
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
approved by Purchaser in writing prior to the expiration of the Approval
Period. All of the above are herein referred to as the "Permitted Exceptions".
The Title Commitment shall be conclusive evidence of good title as therein
shown as to all matters insured by the policy, subject only to the exceptions
therein stated. 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 and the Permitted Exceptions. Seller and Purchaser shall equally
share the costs of the Title Policy; however, Purchaser shall pay the costs of
"extended coverage" or any special endorsements which Purchaser requires.
b. Purchaser acknowledges receipt of a survey ("Survey") of the Property
prepared by Robert M. Angas Associates dated December 15, 1986. Seller has
ordered an updated Survey. Purchaser will approve or disapprove the updated
Survey and advise Seller of any objections prior to the expiration of the
Approval Period. Purchaser and Seller shall equally share the cost of the
udpated Survey.
5. 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. Notwithstanding the aforesaid, Seller shall remove all liens of a
definite ascertainable amount, and Seller shall not create any new encumbrances
against the Property.
6. PAYMENT OF CLOSING COSTS. Seller and Purchaser shall equally share the
costs of the 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.
<PAGE>
7. DAMAGE, CASUALTY AND CONDEMNATION.
a. If the Property suffers damage as a result of any casualty prior to
the Closing Date and can be repaired or restored in the case of real property
for $100,000 or less, or in the case of Personal Property, for $10,000 or less,
then Purchaser shall 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. If the cost of repair or restoration
exceeds those amounts, then Purchaser can elect to either: (a) 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; or (b) terminate this Agreement upon notice to Seller served within
twenty (20) business days of receipt of notice of such casualty.
b. If between the date of this Agreement and the Closing Date, any
condemnation or eminent domain proceedings are initiated which might result in
the taking of any part of the Property or the taking or closing of any right of
access to the Property, Seller shall immediately notify Purchaser of such
occurrence. In the event that the taking of any part of the Property shall:
(i) impair access to the Property; (ii) cause any non-compliance with any
applicable law, ordinance, rule or regulation of any federal, state or local
authority or governmental agencies having jurisdiction over the Property or any
portion thereof; or (iii) adversely impair the use of the Property as it is
currently being operated (hereinafter collectively referred to as a "Material
Event"), Purchaser may:
i. terminate this Agreement by written notice to Seller, in which event
the Earnest Money deposited by Purchaser, together with interest thereon,
shall be returned to Purchaser and all rights and obligations of the
parties hereunder with respect to the closing of this transaction will
cease, except for Purchaser's obligations to indemnify Seller and restore
the Property, as set forth more fully in Paragraph 17; or
ii. 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.
Purchaser shall notify Seller within five (5) business days after
Purchaser's receipt of Seller's notice whether Purchaser elects to
exercise its rights under subparagraph (i) or subparagraph (ii) of this
Paragraph b. The 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
terminate this Agreement.
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.
c. If the Agreement is terminated pursuant to this Paragraph, then the
Earnest Money plus all accrued interest shall be delivered to the Purchaser.
<PAGE>
8. 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 and loss by fire or other
casualty or condemnation 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. Except for any breach of the representations set
forth in Paragraph b.vi. and vii., 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 Resource
Conservation and Recovery Act ("RCRA"), 42 U.S.C. Section 9601, et seq.; the
Clean Water Act ("CWA"), 33 U.S.C. Section 1251 et seq.; the Safe Drinking
Water Act, 42 U.S.C. Section 300f et seq.; the Clean Air Act ("CAA"), 42 U.S.C.
Section 7401 et seq.; and in any permits, licenses, approvals, plans, rules,
regulations or ordinances adopted, or other criteria and guidelines promulgated
pursuant to the preceding laws or other similar federal, state or local laws,
regulations, rules or ordinance now or hereafter in effect relating to
environmental matters (collectively the "Environmental Laws"); and (ii) any
other substances, constituents or wastes subject to any applicable federal,
state or local law, regulation or ordinance, including any Environmental Law,
now or hereafter in effect, including but not limited to (A) petroleum,
(B) refined petroleum products, (C) waste oil, (D) waste aviation or motor
<PAGE>
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. Except as may otherwise be
specifically set forth elsewhere in this Agreement, 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, except as may otherwise be specifically set
forth elsewhere in this Agreement, releases Seller from any liability with
respect to such historical information.
9. CLOSING. The closing ("Closing") of this transaction shall be five (5)
days after the expiration of the Approval Period ("Closing Date"), at the
office of the Purchaser's attorney in Tampa, Florida, at which time Seller
shall deliver possession of the Property to Purchaser.
10. 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; a quitclaim deed conveying all of Seller's right,
title and interest, if any, in and to any strips, gores, hiatuses and/or other
property discrepancies reflected on the Survey which are not included within
the legal description of the Property; an assignment of any termite bond that
Seller has, provided such bond is assignable; 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 to be assumed by Purchaser (in the form of Exhibit G
attached hereto); an executed assignment and assumption of all leases and
security deposits (in the form of Exhibit H attached hereto); updated rent roll
(to be delivered two days prior to the Closing Date); 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); an affidavit (in the form of Exhibit L
attached hereto) stating Purchaser's right to audit Seller's books and records
relating to the Property, at Purchaser's expense, at a time reasonably
convenient to Seller, but before March 31, 1997, if Purchaser is required to
submit to the Securities and Exchange Commission or any other regulatory body;
an executed assignment of intangible property (in the form of Exhibit M
attached hereto); an executed certificate as to representations and warranties
(in the form of Exhibit P attached hereto); an opinion letter from the in-house
counsel of The Balcor Company substantially in the form of Exhibit Q attached
hereto; an Estoppel Certificate (reasonably acceptable to Purchaser) and the
Consent from the Lender; an executed assignment of escrows, if any (in the form
<PAGE>
of Exhibit R 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.
11. DEFAULT BY PURCHASER. ALL EARNEST MONEY DEPOSITED INTO THE ESCROW IS TO
SECURE THE TIMELY PERFORMANCE BY PURCHASER OF ITS OBLIGATIONS AND UNDERTAKINGS
UNDER THIS AGREEMENT, INCLUDING ITS OBLIGATIONS TO MAKE ALL DEPOSITS ON OR
BEFORE THE DATES PROVIDED FOR HEREIN. IF THE PURCHASER FAILS TO MAKE ITS
DEPOSITS INTO THE ESCROW ON OR BEFORE THE DATE SUCH DEPOSIT IS DUE AS PROVIDED
FOR HEREIN, OR IN THE EVENT OF ANY OTHER DEFAULT OF THE PURCHASER UNDER THE
PROVISIONS OF THIS AGREEMENT, THEN 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.
12. SELLER'S DEFAULT. IF THIS SALE IS NOT COMPLETED BECAUSE OF SELLER'S
DEFAULT, PURCHASER'S SOLE REMEDY SHALL BE THE RIGHT TO RECOVER FROM THE SELLER
ACTUAL DAMAGES IN AN AMOUNT NOT TO EXCEED $100,000.00 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, THEN
PURCHASER WILL BE ENTITLED TO SUE FOR SPECIFIC PERFORMANCE, PROVIDED THAT AT
THE TIME OF THE FILING OF THE COMPLAINT, PURCHASER SHALL DEPOSIT WITH THE
ESCROW AGENT THE AMOUNT OF THE PURCHASE PRICE INCLUSIVE OF THE EARNEST MONEY.
13. a. PRORATIONS. Rents (exclusive of delinquent rents, but including
prepaid rents); all security deposits and interest thereon if required by law
or under the leases (which will be assigned to and assumed by Purchaser and
credited to Purchaser at Closing); escrow and/or impounds held by the Lender
(which will be assigned to Purchaser and credited to Seller); interest on the
First Note; water and other utility charges; fuels; service contracts; real and
personal property taxes; and other similar items shall be adjusted ratably as
of 11:59 P.M. on the day prior to the Closing Date ("Proration Date"), and
credited or debited to the balance of the cash due at Closing. 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. Post-closing
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
the first rent collected by Purchaser 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 60 days after the Closing Date.
This subparagraph of this Agreement shall survive the Closing and the delivery
and recording of the Deed.
<PAGE>
14. RECORDING. This Agreement shall not be recorded and the act of recording
by Purchaser or Seller shall be an act of default hereunder by such party and
shall be subject to the provisions of Paragraph 11 or 12, as applicable.
15. ASSIGNMENT. Purchaser reserves the right to assign its rights under this
Agreement (but without release of its obligations herein) to a third party who
may purchase or sell and thereafter exchange the Property in accordance with
the provisions of Section 1031 of the Internal Revenue Code of 1986. Such
exchange shall be accomplished at no additional expense or delay to Seller and
Purchaser agrees to indemnify Seller against any claims or liabilities
resulting solely from structuring the transaction as an exchange, rather than a
direct purchase.
16. BROKER. The parties hereto acknowledge that they have not engaged the
services of a real estate broker. Purchaser has not paid and will not pay at
any time before, at or after the Closing, any fee, commission or compensation
whatsoever to any person whomsoever directly or indirectly on account of this
Agreement, its negotiation, or the sale hereby contemplated. The foregoing
does not apply to any fee which may be paid to any affiliate of Seller as a
result of this transaction. 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. This
Paragraph shall survive the Closing and the delivery and recording of the Deed.
<PAGE>
17. 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 Time) on May 2, 1996
("Approval Period"). During the Approval Period, upon reasonable notice to the
Seller, the Purchaser shall have the right, during normal business hours, to
inspect and approve the condition of the Property including the interior of the
apartments and review all files and leases located at the Property and related
locations. Purchaser, its engineers, architects, employees, contractors and
agents shall maintain public liability insurance policies insuring against
claims arising as a result of the inspections of the Property being conducted
by Purchaser. 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, for any reason or no reason, it must be by a notice ("Notice of
Disapproval") delivered to Seller and the Escrow Agent on or prior to the first
business day after 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, then it shall be conclusively presumed that Purchaser has approved
the Documents and the condition of the Property and all Earnest Money plus the
interest accrued thereon shall belong to Seller unless Seller is in default
hereunder. Upon receipt by Seller of a Notice of Disapproval from Purchaser,
Seller shall instruct Escrow Agent to return the Earnest Money plus all accrued
interest thereon to Purchaser.
18. SURVIVAL OF PURCHASER'S INDEMNITY. Notwithstanding anything in this
Agreement to the contrary, Purchaser's obligation to indemnify, defend and hold
Seller 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.
19. SELLER'S REPRESENTATIONS, WARRANTIES AND COVENANTS.
a. Any reference herein to Seller's knowledge, representation, warranty
or notice of any matter or thing, shall only mean such knowledge or notice that
has actually been received by Phillip Schechter or Michael Becker (the asset
manager of the Property), and any representation or warranty of the Seller is
based upon those matters of which Phillip Schechter or Michael Becker has
actual knowledge. Any knowledge or notice given, had or received by any of
Seller's agents, servants or employees shall not be imputed to Seller or the
individual partners or the general partner of Seller.
<PAGE>
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, which shall survive the
Closing and delivery of the Deed for a period of one hundred eighty (180) days:
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 attached hereto as Exhibit N which will be updated as
of the Closing Date is true and accurate.
iii. Seller has no knowledge of any pending or threatened litigation,
claim, cause of action or administrative proceeding concerning the
Property.
iv. Seller has the power and authority to execute and deliver this
Agreement, the Deed and the other conveyance documents; the persons
executing the documents are duly authorized to do so, without further
consent of any other party and upon their execution, the documents shall
be binding upon Seller;
v. The management, operation, leasing and maintenance of the Property,
as presently conducted by the Seller, shall continue until the Closing
Date.
vi. Seller has not received written notice from any governmental
authorities that the Property contains Hazardous Materials or Hazardous
Substances or that the Property violates any Environmental Laws.
vii. Seller has no knowledge of the existence of Hazardous Materials or
Hazardous Substances on the Property.
viii. Except as otherwise set forth on the list of Service Contracts
attached hereto as Exhibit O, all of the Service Contracts are terminable
on thirty days' prior notice without premium or penalty.
ix. Seller has made available or will make available to the Purchaser, at
Purchaser's request, during the Approval Period, the books and records
concerning the Property which books and records are located at various
locations.
x. All loan documents evidencing the Existing Encumbrance are in full
force and effect, have not been amended and no fact or circumstance has
occurred that, by itself or with the giving of notice or the passage of
time or both, would constitute a default under any such loan documents.
xi. All representations and warranties made by Seller under this
Paragraph will be reviewed by Michael Becker (the asset manager), Susan
Miller (the district manager of the management company) after inquiry of
the on-site manager and Jerry Ogle, the in-house counsel of The Balcor
Company, with a requirement that they respond in writing to Michael Becker
as to whether or not to the best of their knowledge any of the
representations and warranties is false or misleading.
<PAGE>
c. If on or prior to the Closing Date, Seller discovers that a
representation or warranty is untrue, then upon notice to Purchaser, Purchaser
can elect to terminate this Agreement or take title to the Property subject to
the untrue representation or warranty.
20. ENVIRONMENTAL REPORT. Attached to this Agreement as Exhibit K is a
Preliminary Environmental Site Assessment dated May 12, 1993 prepared by
Environmental Risk Consultants, Inc. ("Environmental Report") of the Property,
which Seller is delivering to Purchaser, at Purchaser's request. 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 and Seller will provide the other party's attorney with
copies of their organizational documents, including a certified copy of the
recorded certificate of limited partnership and a true copy of its Partnership
Agreement or a certified copy of its Articles of Incorporation and corporate
resolutions authorizing the transaction, whichever is applicable.
23. TIME OF ESSENCE. Time is of the essence of this Agreement.
<PAGE>
24. NOTICES. Any notice or demand which either party hereto is required or
may desire to give or deliver to or make upon the other party shall be in
writing and may be personally delivered or given or made by overnight courier
such as Federal Express or by facsimile or made by United States registered or
certified mail addressed as follows:
TO SELLER: c/o The Balcor Company
2355 Waukegan Road
Suite A200
Bannockburn, Illinois 60015
Attn: Ilona Adams
with copies to: The Balcor Company
2355 Waukegan Road
Suite A200
Bannockburn, Illinois 60015
Attn: Al Lieberman
847/267-1600
847/317-4462 (FAX)
and
Morton M. Poznak
Schwartz & Freeman
Suite 1900
401 North Michigan Avenue
Chicago, Illinois 60611
312/222-0800
312/222-0818 (FAX)
TO PURCHASER: United Dominion Realty Trust, Inc.
7800 South Land Blvd.
Suite 154
Orlando, Florida 32809
Attention: Harold S. Warren
407/856-0338
407/856-0523 (FAX)
with a copy to: United Dominion Realty Trust, Inc.
10 S. Sixth Street
Suite 203
Richmond, Virginia 23219
Attention: Sarah S. Schimmels, Esq. and
Robert M. Weber, Asst. V.P.
Acquisitions
804/780-2691
804/788-4607 (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,
<PAGE>
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. Hard
copies of all facsimiles will be sent by overnight courier no later than the
next business day after the facsimiles are sent.
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. Seller will forward one (1) copy of the
executed Agreement to Purchaser and will forward the following to the Escrow
Agent:
a. One (1) fully executed copy of this Agreement; and
b. Three (3) copies of the Escrow Agreement signed by the parties with a
direction to execute two (2) copies of the Escrow Agreement and deliver a fully
executed copy to the Purchaser and the Seller upon receipt of the Earnest
Money.
Purchaser will wire transfer the Earnest Money to the Escrow Agent within
one (1) business day after Purchaser receives a fully executed Agreement of
Sale.
26. GOVERNING LAW. The provisions of this Agreement shall be governed by the
laws of the State of Florida.
27. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement between
the parties and supersedes all other negotiations, understandings and
representations made by and between the parties and the agents, servants and
employees.
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.
31. CONFIDENTIALITY. Purchaser and Seller each hereby agree to reasonably
endeavor to keep the terms and conditions of this Agreement confidential,
provided that either party may reveal such information regarding the terms and
provisions of this Agreement as may be necessary in their reasonable discretion
to comply with the provisions of this Agreement, the reasonable operation and
conduct of their respective businesses or any provision of any law, ordinance
or governmental regulation.
<PAGE>
32. VACANT APARTMENTS. If, as of the Closing Date, any of the apartment units
has been vacant for more than five (5) days, then Purchaser shall receive a
credit of $200.00 for each of those vacant units which is not in a "rent ready
condition".
33. MISCELLANEOUS.
a. Seller agrees that it will not terminate its partnership agreement
prior to a date which is 180 days after the Closing Date and it will withhold
$250,000.00 from its distribution of the net proceeds of this sale to its
partners until a date which is 180 days after the Closing Date.
b. Attached hereto as Exhibit T is a copy of a Contract ("Paint
Contract") which Seller has entered into with Michael D. Ferguson Painting and
Waterproofing for the painting of the exterior of the apartment project. If
the painting has not been completed by the Closing Date, then Seller shall
assign the Painting Contract to the Purchaser and give the Purchaser a credit
in the amount of the unpaid balance due on the Painting Contract.
IN WITNESS WHEREOF, the parties hereto have put their hand and seal as of
the date set forth above.
Executed by Purchaser on PURCHASER:
March 29, 1996.
UNITED DOMINION REALTY TRUST, INC.,
a Virginia corporation
By: R.M. Weber
--------------------------------
Asst. Vice President
Executed by Seller on SELLER:
April 2, 1996.
ANTLER INVESTORS, an Illinois limited
partnership
By: Balcor Partners-XV, an Illinois general
partnership, its sole general partner
By: RGF-Balcor Associates-II, an Illinois
general partnership, general partner
By: The Balcor Company, a Delaware
corporation, a general partner
By: Philip Schechter
---------------------------------
Authorized Agent
<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 - Environmental Report
L - Affidavit As To Audit
M - Assignment of Intangible Property
N - Rent Roll
O - List of Service Contracts
P - Certificate as to Representations and Warranties
Q - Opinion Letter
R - Assignment of Escrows
S - First Note and First Mortgage Documents
T - Paint Contract
