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) March 31, 1997
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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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
proceeds of approximately $1,241,000. In 1992, the new mortgage loan was
modified, and, as part of the modification, the Partnership made a principal
payment of approximately $440,000 on the loan.
On March 31, 1997, the Partnership contracted to sell the property to an
unaffiliated party, Harbour Realty Advisors, Inc. The sale price is
$11,000,000. The purchaser has deposited $100,000 into an escrow account as
earnest money and is required to deposit an additional $100,000 by April 15,
1997. The remaining $10,800,000 will be paid at closing, which is scheduled
for May 15, 1997. 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 $8,752,538. As a part of the 1992 loan modification
described above, the lender is also entitled to receive upon the sale an amount
equal to 25% of that portion of the sale price of the property which exceeds
$10,100,000. The amount to be paid to the lender under this provision is
$225,000, based on the purchase price above. The Partnership will pay $220,000
as a brokerage commission to an affiliate of the third party which manages the
property in connection with the sale of the property, and will receive the
remaining proceeds of approximately $1,802,000, less closing costs. 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 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 and attachment thereto relating to the
sale of Courtyards of Kendall Apartments, Dade County,
Florida.
(b) First Amendment to Agreement of Sale relating to the sale of
Courtyards of Kendall Apartments, Dade County, Florida.
No information is required under Items 1, 3, 4, 5, 6 and 8 and these items
have, therefore, been omitted.
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Signature
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Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this Report to be signed on its behalf by the
undersigned hereunto duly authorized.
BALCOR 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, Managing Director
and Secretary
Dated: April 11, 1997
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AGREEMENT OF SALE
THIS AGREEMENT, entered into as of the 26 day of March, 1997, by and
between HARBOUR REALTY ADVISORS, INC. ("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 Thousand and No/100 Dollars
($11,300,000.00) ("Purchase Price"), that certain property ("Property") in
Miami, Dade County, Florida, more particularly described on Exhibit A attached
hereto, which Property is known as Courtyards of Kendall 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. Upon the execution of this Agreement, the sum of $100,000.00
("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 or before April 15, 1997 the sum of $100,000.00 as additional
Earnest Money to be deposited in escrow by and in accordance with the Escrow
Agreement (the Earnest Money and the additional Earnest Money shall henceforth
collectively be referred to as the Earnest Money);
c. On the Closing Date (as hereinafter defined), $11,300,000.00
(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 with an
effective date of February 6, 1997 (revised February 14, 1997) ("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-Section 2, Numbers 2f and 5 through 11
inclusive of the Title Commitment. 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
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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. Seller shall pay 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 C.C.L. Consultants, Inc. revised as of February 26, 1997
and Purchaser approves all of the matters set forth on the Survey. Prior to
the Closing, Seller will have the Survey certified to the Purchaser and the
Title Insurer. However, if Purchaser requires any additional survey work,
Purchaser shall pay for the cost of such additional work.
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 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.
Purchaser shall pay all costs in connection with any mortgage loan 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 $200,000.00 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 Seller or Purchaser can elect
to terminate this Agreement upon notice to the other served within twenty (20)
business days of such casualty. If neither Seller nor Purchaser shall elect to
terminate this Agreement, Seller shall 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. If Seller elects to terminate this
Agreement pursuant to this Paragraph, then Purchaser will have the option to
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, provided Purchaser notifies Seller by notice served within
twenty (20) days after receipt of Seller's notice of election to terminate.
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b. If condemnation proceedings ("Proceedings") are instituted
against the Property and the parties reasonably believe that such Proceedings
will result in an award in excess of $100,000.00, 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.
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. Except with respect to Seller's representations and warranties
of Seller set forth in Paragraph of this Agreement, Purchaser acknowledges and
agrees that it will be purchasing the Property based solely upon its inspection
and investigations of the Property and that Purchaser will be purchasing the
Property "AS IS" and "WITH ALL FAULTS" based upon the condition of the Property
as of the 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 in Paragraph and 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
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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,
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. Except as set forth in Paragraph of
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 releases Seller from any liability with respect to such historical
information.
8. CLOSING. The closing ("Closing") of this transaction shall be on
May 15, 1997 ("Closing Date"), at the office of the Title Insurer in Miami,
Florida, 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
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same (in the form of Exhibit F attached hereto); an executed closing statement;
an executed assignment and assumption of all service contracts (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; 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 and the State of
Florida in order to consummate the transaction as set forth in this Agreement.
10. DEFAULT BY PURCHASER. ALL EARNEST MONEY DEPOSITED INTO THE ESCROW IS
TO SECURE THE TIMELY PERFORMANCE BY PURCHASER OF ITS OBLIGATIONS AND
UNDERTAKINGS UNDER THIS AGREEMENT, INCLUDING ITS OBLIGATIONS TO MAKE ALL
DEPOSITS ON OR BEFORE THE DATES PROVIDED FOR HEREIN. IN THE EVENT 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 RETURN OF ALL EARNEST MONEY
TOGETHER WITH ANY INTEREST ACCRUED THEREON AND PAYMENT BY SELLER OF PURCHASER'S
EXPENSES IN CONNECTION WITH THIS TRANSACTION IN AN AMOUNT NOT TO EXCEED THE
AMOUNT OF EARNEST MONEY THEN ON DEPOSIT WITH THE ESCROW AGENT, 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 OR
PROVIDE ESCROW AGENT WITH A COPY OF A COMMITMENT FROM PURCHASER'S LENDER TO
LEND THE AMOUNT NECESSARY FOR PURCHASER TO CLOSE THE ACQUISITION OF THE
PROPERTY.
12. a. PRORATIONS. Rents (exclusive of delinquent rents, but including
prepaid rents); refundable security deposits plus interest payable to tenants
on security deposit if any (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
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(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 share of the first rent collected by Purchaser based upon the
prorations established at the Closing less any costs of collection 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
cost of collection and then to Delinquent Rent. Purchaser shall deliver
Seller's pro rata share within 10 days of Purchaser's receipt of that
Delinquent Rent. This subparagraph of this Agreement shall survive the Closing
and the delivery and recording of the Deed.
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 . Seller hereby consents to an
assignment to an entity, the ownership and control of which is held by the same
persons owning and controlling Purchaser, provided such assignment is effected
at least ten (10) 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. Seller represents to Purchaser that Insignia Mortgage and
Investment Company ("Broker") is the only real estate broker involved in this
transaction. Purchaser represents to Seller that it has not paid and will not
pay at any time before, at or after the Closing, any fee, commission or
compensation whatsoever for brokerage services to any person whomsoever
directly or indirectly on account of this Agreement, its negotiation, or the
sale hereby contemplated. Seller agrees to pay Broker a commission or fee
("Fee") pursuant to a listing agreement between Seller and Broker. However,
this Fee is due and payable only from the proceeds of the Purchase Price
received by Seller. The foregoing does not apply to any fee which may be paid
by Seller 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
<PAGE>
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 partners, 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 April 15, 1997 ("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
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, 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 and all Earnest Money plus the interest accrued thereon shall belong
to Seller unless Seller is in default hereunder.
<PAGE>
d. If at any time prior to the Closing Date, Purchaser discovers
any fact or circumstance which would cause a representation or warranty of
Seller to be untrue or misleading, or with the passage of time would become
untrue or misleading and Purchaser fails to notify Seller of such fact or
circumstance, then Purchaser shall be deemed to have waived its right to seek
damages or termination of this Agreement by reason of the breach of that
representation or warranty.
17. SURVIVAL OF PURCHASER'S INDEMNITY. Notwithstanding anything in this
Agreement to the contrary, Purchaser's and Seller's obligations to indemnify,
defend and hold each other and any other party related to each of them 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 in this Paragraph , 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, all of which shall
survive the Closing and delivery of the Deed for a period of six (6) months:
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 law, rule or regulation affecting the Property is being violated.
ii. The rent roll ("Rent Roll") attached hereto as Exhibit K
which will be updated as of the Closing Date is true, accurate and complete.
iii. Seller has no knowledge of any pending or threatened
litigation, claim, cause of action or administrative proceeding concerning the
Property.
iv. The Service Contracts listed on Exhibit L attached hereto
are all of the service contracts affecting the Property and will be assumed by
Purchaser at Closing. To the best of Seller's knowledge there are no other
unrecorded contracts or agreements affecting the Property which are not
cancelable on thirty (30) days written notice.
v. Seller has not knowingly failed to deliver to Purchaser any
environmental reports other than those described in Paragraph of this
Agreement.
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vi. Seller is not knowingly withholding from Purchaser any
engineering reports with reference to the structural condition of the Property.
c. Seller hereby covenants the following: (i) that the management,
operation, leasing and maintenance of the Property, as presently conducted by
the Seller, shall continue until the Closing Date, (ii) that Seller shall
deliver to the on-site property manager a copy of the representations and
warranties set forth in this Paragraph with a request to advise Seller whether
or not any of the representations or warranties is false or misleading, and
(iii) after the Approval Period shall not lease apartment units other than as
set forth on the Attached Exhibit N.
d. If on or prior to the Closing Date, Seller discovers that a
representation or warranty is untrue, then upon receipt of notice from Seller,
Purchaser can elect to terminate this Agreement or take title to the Property
subject to the untrue representation or warranty.
19. ENVIRONMENTAL REPORT. Attached to this Agreement as Exhibit M is a
Phase I Environmental Site Assessment and Limited Asbestos Survey dated
October 21, 1991 prepared by Law Associates, 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.
20. 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.
21. 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.
22. TIME OF ESSENCE. Time is of the essence of this Agreement.
23. 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 (receipt of which is confirmed) or made
by United States registered or certified mail addressed as follows:
<PAGE>
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)
and
Morton M. Poznak
Schwartz & Freeman
401 North Michigan Avenue
Suite 1900
Chicago, Illinois 60611
312/222-0800
312/222-0818 (FAX)
TO PURCHASER: Carol MacKinnon
Harbour Realty Advisors, Inc.
1177 Kane Concourse
Bay Harbor, Florida 33154
305/865-8011
305/866-8014 (FAX)
with a copy to: John D'Amico
Reid & Reiger
One State Street
Hartford, Connecticut 06103
860/278-1150
860/240-1002 (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 confirmed facsimile before the close of
business, or the next day if sent by confirmed 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.
<PAGE>
24. 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.
25. GOVERNING LAW. The provisions of this Agreement shall be governed by
the laws of the State of Florida.
26. 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.
27. 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.
28. 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.
29. 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:
March 26, 1997.
HARBOUR REALTY ADVISORS, INC.
By: /s/ Bob Dorf, Vice-President
----------------------------------
Executed by Seller on SELLER:
March 31, 1997.
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.
--------------------------------
John K. Powell, Jr.
Senior Vice President
<PAGE>
Courtyards of Kendall
Insignia Mortgage and Investment Company ("Broker") executes this Agreement in
its capacity as a real estate broker and acknowledges that the fee or
commission ("Fee") due to it as a result of the transaction described in this
Agreement is the amount as set forth in the listing agreement between Broker
and Seller. Broker also acknowledges that payment of the aforesaid Fee is
conditioned upon the Closing and the receipt of the Purchase Price by the
Seller. Broker agrees to deliver a receipt to the Seller at the Closing for
the Fee and a release stating that no other fees or commissions are due to
Broker from Seller or Purchaser.
INSIGNIA MORTGAGE AND INVESTMENT
COMPANY
By: /s/ Al Lieberman
-------------------------------
<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 - Service Contracts
M - Environmental Report
N - Leasing Guidelines
<PAGE>
FIRST AMENDMENT TO AGREEMENT OF SALE
This First Amendment ("First Amendment") to Agreement of Sale is entered
into as of April 10, 1997, by and between HARBOUR REALTY ADVISORS, INC., as
Purchaser, and COURTYARDS OF KENDALL LIMITED PARTNERSHIP, an Illinois Limited
Partnership, as Seller.
RECITALS
A. Purchaser and Seller hereto have entered into an Agreement of Sale
dated March 26, 1997 ("Agreement") for the purchase and sale of the apartment
project known as Courtyards of Kendall Apartments.
B. Purchaser and Seller now wish to amend the Agreement.
NOW, THEREFORE, the Agreement is amended as follows:
1. The Purchase Price of $11,300,000 as referenced in Paragraphs 1 and 2c
is hereby changed to $11,000,000.00. All references to Purchase Price shall
mean $11,000,000.
2. Except as modified herein, all other terms and conditions of the
Agreement remain in full force and effect.
3. All capitalized terms used herein shall have the same meaning as in
the Agreement.
4. This First Amendment may be executed in multiple facsimile
counterparts, each of which shall be deemed an original, but all of which shall
constitute one and the same instrument.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have put their hand and seal as of
the date set forth above.
PURCHASER:
HARBOUR REALTY ADVISORS, INC.
By: /s/ Carol MacKinnon
--------------------------------
SELLER:
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/ James E. Mendelson
-------------------------------
<PAGE>
