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) February 22, 1996
BALCOR REALTY INVESTORS 85 - SERIES I
A REAL ESTATE LIMITED PARTNERSHIP
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Exact Name of Registrant
Illinois 0-14353
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State or other jurisdiction Commission file number
2355 Waukegan Road
Suite A200
Bannockburn, Illinois 36-3244987
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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 5. OTHER MATTERS
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a) Seabrook Apartments
In 1984, Seabrook Apartments, Orange County, Florida, was acquired by a limited
partnership (the "Limited Partnership") in which the Partnership and an
affiliate of the Partnership (the "Affiliate") held joint venture interests of
approximately 15.43% and 84.57%, respectively. The Partnership contributed
$492,480 and the Affiliate contributed $2,700,000 from their respective
offering proceeds towards the purchase of the property. The property was
acquired subject to first mortgage financing of $5,950,000.
On February 20, 1996, the Limited Partnership sold the property to an
unaffiliated party, United Dominion Realty Trust, Inc., a Virginia corporation,
for a sale price of $5,915,000. From the proceeds of the sale, the Limited
Partnership paid the $5,081,898 outstanding balance of the first mortgage loan
collateralized by the property, a brokerage commission of $147,875 to an
unaffiliated party, closing and other sale costs of $42,642 and will receive
the remaining proceeds of $642,585. Pursuant to the terms of the sale, $250,000
of the proceeds will be retained by the Limited Partnership until August 1996.
The Partnership's share of the net sale proceeds will be $99,151. The General
Partner was reimbursed by the Partnership for its actual expenses incurred in
connection with the sale.
b) Willow Bend Apartments
In 1985, the Partnership acquired the Willow Bend Apartments, St. Louis,
Missouri, utilizing approximately $3,924,720 in offering proceeds. The
property was acquired subject to first mortgage financing of approximately
$7,062,000.
On February 22, 1996, the Partnership contracted to sell the property for a
sale price of $9,985,000 to unafiiliated parties, Mary Camenzind Boland
Revocable Trust and John Hazzard Camenzind Trust (together, the "Purchaser").
The Purchaser has deposited $200,000 into an escrow account as earnest money.
The remaining $9,785,000 of the sale price will be paid in cash by the
Purchaser at closing, scheduled to be held on March 29, 1996. From the
proceeds of the sale, the Partnership will pay to an unaffiliated party a
brokerage commission of $199,700 and to the holder of the first mortgage loan
the outstanding balance of the loan, expected to be approximately $5,794,000 at
closing. The General Partner will be reimbursed by the Partnership for actual
expenses incurred in connection with the sale.
The closing is subject to the satisfaction of numerous terms and conditions.
There can be no assurance that all of the terms and conditions will be complied
with and, therefore, it is possible the sale of the property may not occur.
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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:
(99) (a) Agreement of Sale and attachment thereto relating
to the sale of the Seabrook apartment complex.
(b) Agreement of Sale and attachment thereto relating
to the sale of the Willow Bend apartment complex.
No information is required under Items 1, 2, 3, 4, 6 and 8 and these items
have, therefore, been omitted.
Signature
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Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this Report to be signed on its behalf by the
undersigned hereunto duly authorized.
BALCOR REALTY INVESTORS 85 - SERIES I
A REAL ESTATE LIMITED PARTNERSHIP
By: Balcor Partners-XVI, an Illinois
general partnership, its general
partner
By: The Balcor Company,
a Delaware corporation,
a partner
By: /s/ Jerry M. Ogle
------------------------------------
Jerry M. Ogle, Vice President
and Secretary
Dated: March 8, 1996
<PAGE>
AGREEMENT OF SALE
THIS AGREEMENT, entered into as of the 15 day of December, 1995, by and
between UNITED DOMINION REALTY TRUST, INC., a Virginia corporation
("Purchaser") and BROOKSEA ASSOCIATES, an Illinois Limited Partnership
("Seller").
WITNESSETH:
1. PURCHASE AND SALE. Purchaser agrees to purchase and Seller agrees to sell
at the price of Six Million Two Hundred Fifty Thousand and No/100 Dollars
($6,250,000.00) ("Purchase Price"), that certain property ("Property") in
Winter Park, Florida, more particularly described on Exhibit A attached hereto,
which Property is known as Seabrook 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 $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 the Closing Date (as hereinafter defined), $6,250,000.00
(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 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.
3. TITLE COMMITMENT AND SURVEY.
a. Attached hereto as Exhibit C is a title commitment with an effective
date of September 6, 1995 ("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, the general printed exceptions contained in the policy 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.
<PAGE>
b. Purchaser acknowledges receipt of a survey ("Survey") of the Property
prepared by Sears Surveying Company dated July 7, 1995, and Purchaser will
approve or disapprove the Survey and advise Seller of any objections prior to
the expiration of the Approval Period. 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. Notwithstanding the aforesaid, Seller shall remove all liens of a
definite ascertainable amount, and Seller shall not create any new encumbrances
against the Property.
5. 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.
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 $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 ; or
<PAGE>
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.
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 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
<PAGE>
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
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.
8. CLOSING. The closing ("Closing") of this transaction shall be within
fifteen(15) days after the end of the Approval Period, prvided, however, in no
eventshall Seller be obligated to close earlier than (4) four business days
after Purchaser's ("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.
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.
<PAGE>
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, 1996, 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; 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.
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. 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.
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 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.
<PAGE>
12. 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); 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.
13. 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 or , as applicable.
14. 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.
15. BROKER. The parties hereto acknowledge that Cushman & Wakefield of
Florida, 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,
<PAGE>
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.
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 Time) on January 25, 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.
17. 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.
<PAGE>
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 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.
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.
<PAGE>
x. All representations and warranties made by Seller under this
Paragraph will be reviewed by Michael Becker (the asset manager), Jan
Mason (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.
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.
19. ENVIRONMENTAL REPORT. Attached to this Agreement as Exhibit K is a Phase
I Environmental Site Assessment dated March 13, 1995 prepared by Environmental
Management Group, 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 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.
22. TIME OF ESSENCE. Time is of the essence of this Agreement.
<PAGE>
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 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
708/267-1600
708/317-4462 (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
M.A. "Buddy" Scott, Asst. V.P.
Acquisitions
804/780-2691
804/788-4607 (FAX)
<PAGE>
subject to the right of either party to designate a different address for
itself by notice similarly given. Any notice or demand so given shall be
deemed to be delivered or made 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. Hard
copies of all facsimiles will be sent by overnight courier no later than the
next business day after the facsimiles are sent.
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. 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.
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>
30. 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.
31. 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".
32. MISCELLANEOUS. 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.
IN WITNESS WHEREOF, the parties hereto have put their hand and seal as of the
date set forth above.
Executed by Purchaser on PURCHASER:
15 December, 1995.
UNITED DOMINION REALTY TRUST, INC.,
a Virginia corporation
By: /s/Richard Chess
--------------------------------
Executed by Seller on SELLER:
December 19, 1995.
BROOKSEA ASSOCIATES, an Illinois
limited partnership
By: Seabrook Associates, an Illinois
limited partnership, its sole
general partner
By: Balcor Realty Associates VIII, an
Illinois general partnership, general
partner
By: The Balcor Company, a Delaware
corporation, a general partner
By: /s/Phillip Schechter
--------------------------------
Authorized Agent
<PAGE>
Seabrook
Cushman & Wakefield of Florida, 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.
CUSHMAN & WAKEFIELD OF FLORIDA,
INC.
By: /s/Marsha Stinson
----------------------------
Associate Director
<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
<PAGE>
AGREEMENT OF SALE
THIS AGREEMENT OF SALE (this "Agreement"), is entered into as of the 22
day of February, 1996, by and between the Mary Camenzind Boland Revocable Trust
U/I dtd. September 12, 1994 ("Mary Trust") and the John Hazzard Camenzind Trust
created under will dated July 13, 1967 ("John Trust") (the Mary Trust and the
John Trust are referred to herein, together, as the "Purchaser"), and Willow
Bend Investors, an Illinois limited partnership ("Seller").
W I T N E S S E T H:
1. PURCHASE AND SALE. Purchaser agrees to purchase and Seller agrees to sell
at the price of Nine Million Nine Hundred Eighty-Five Thousand And No/100
Dollars ($9,985,000.00) (the "Purchase Price"), that certain property commonly
known as Willow Bend Apartments, St. Louis, Missouri legally described on
Exhibit A attached hereto (the "Property"). Included in the Purchase Price is
all of the personal property 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
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
("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 11:00 a.m Chicago time.
3. TITLE COMMITMENT AND SURVEY.
3.1. Within ten (10) days after the date hereof, Seller shall deliver to
Purchaser a copy of a title commitment for an owner's standard title insurance
policy issued by Lawyers Title Insurance Corporation (hereinafter referred to
as "Title Insurer") for the Property (the "Title Commitment"). 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 district taxes and related charges not yet due and
payable; (c) matters shown on the "Survey" (hereinafter defined) which do not
affect marketability of title; (d) matters caused by the actions of Purchaser;
and (e) covenants, conditions and restrictions of record, public and utility
easements, and roads and highways, which do not interfere with the use of the
Property as it is being used on the date hereof, to the extent that same effect
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 to Permitted Exceptions
and Unpermitted Exceptions waived by Purchaser (the "Title Policy"). 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.
<PAGE>
3.2. Within fifteen (15) days after the date hereof, Seller shall deliver
to Purchaser a survey of the Property (the "Survey"). Seller and Purchaser
shall each pay for one-half of the costs of the Survey.
3.3. The obligation of Purchaser to pay various costs set forth in
Paragraphs 3.1 and 3.2 shall survive the termination of this Agreement.
4. PAYMENT OF CLOSING COSTS. In addition to the costs set forth in
Paragraphs 3.1 and 3.2, 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" (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.
5. CONDITION OF TITLE.
5.1. If, prior to "Closing" (as hereinafter defined), the Title
Commitment or the Survey discloses any Unpermitted Exception, Seller shall have
thirty (30) days from the date of the Title Commitment or the Survey, as
applicable, at Seller's expense, to (i) bond over, cure and/or have any
Unpermitted Exceptions which, in the aggregate, do not exceed $25,000.00,
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,
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 $25,000.00,
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 such event, the time of Closing shall be delayed, if necessary, to give
effect to said aforementioned time periods. 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
terminate this Agreement upon notice to Seller within five (5) days after the
expiration of said thirty (30) day period. Absent notice from Purchaser to
Seller in accordance with the preceding sentence, Purchaser shall be deemed to
have elected to take title subject to said Unpermitted Exception. 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.
<PAGE>
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 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 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. 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 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.
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.
<PAGE>
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. During the period commencing on the date hereof and ending at 5:00
p.m. Chicago time on February 29, 1996 (said period being herein referred to as
the "Inspection Period"), Purchaser and the agents, engineers, employees,
contractors and surveyors retained by Purchaser may enter upon the Property, at
any reasonable time and upon reasonable prior notice to Seller, 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 may deem reasonably
necessary and appropriate. In connection with Purchaser's review of the
Property, Seller agrees to deliver to Purchaser copies of the current rent roll
for the Property, the most recent tax bills, utility account numbers, service
contracts, and unaudited year end 1994 and 1995 operating statements.
Furthermore, if the following are reasonably available to Seller, Seller shall
deliver to Purchaser plans and specifications.
All of the foregoing tests, investigations and studies to be conducted under
this Paragraph 7.1 by Purchaser 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 or investigations by or on behalf of Purchaser.
Purchaser shall defend, indemnify and hold Seller and any affiliate, parent of
Seller, and all shareholders, employees, officers and directors of Seller or
Seller's affiliate or parent (hereinafter collectively referred to as
"Affiliate of Seller") harmless from any and all liability, cost and expense
(including without limitation, reasonable attorney's fees, court costs and
costs of appeal) suffered or incurred by Seller or Affiliates of Seller for
injury to persons or property 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 Seller, in
Seller's sole discretion.
Prior to commencing any such tests, studies and investigations, Purchaser shall
furnish to Seller a certificate of insurance evidencing comprehensive general
public liability insurance insuring the person, firm or entity performing such
tests, studies and investigations and listing Seller and Purchaser as
additional insureds thereunder.
7.2. If on or prior to the expiration of the Inspection Period, Purchaser
establishes a Structural Material Defect (hereinafter defined), and the Cost
(hereinafter defined) of remedying the Structural Material Defect is less than
or equal to $100,000.00, then Purchaser shall be obligated to purchase the
Property subject to such Structural Material Defect and any and all other
defects without any credit to the Purchase Price.
<PAGE>
7.3. If on or prior to the expiration of the Inspection Period, Purchaser
delivers to Seller the Notice (hereinafter defined) establishing in accordance
with Paragraph 7.5 or 7.6, as applicable, either or both of the following: (i)
a Structural Material Defect for which the Cost of remedying such Structural
Material Defect is greater than $100,000.00 (a "Structural Substantial
Defect"), or (ii) an Environmental Material Defect (hereinafter defined), then
Seller shall have the right to elect, by written notice within fifteen (15)
business days after receipt of the Notice, to either (a) terminate this
Agreement (the "Termination Notice") in which case the Earnest Money deposited
by Purchaser shall be immediately returned to Purchaser together with all
interest earned thereon and thereupon neither party shall have any rights
against the other or any further liability to the other, except for Purchaser's
obligations pursuant to Paragraph .1 hereof and as otherwise specifically set
forth in this Agreement to survive the termination hereof, or (b) give
Purchaser a credit, at Closing, to the Purchase Price equal to the sum of the
following, each if applicable: (i) the difference between the Costs for the
Structural Substantial Defect and $100,000.00, and (ii) the Costs for the
Environmental Material Defect (the "Credit Notice"), and Purchaser shall
purchase the Property subject to all Structural Material Defects, Structural
Substantial Defects, and Environmental Material Defects. Failure of Seller to
deliver a Credit Notice to Purchaser within the time period above provided
shall be deemed delivery of a Termination Notice. If Seller delivers the
Termination Notice, then Purchaser shall have the right to negate the
Termination Notice (in which case the Termination Notice shall be null and void
and this Agreement shall remain in full force and effect), by delivering to
Seller, on or before ten (10) business days after receipt of the Termination
Notice, a statement agreeing to purchase the Property with no credit to the
Purchase Price and Purchaser shall purchase the Property subject to all
Structural Material Defects, Structural Substantial Defects, and Environmental
Material Defects.
7.4. In order to establish a Structural Material Defect or an
Environmental Material Defect, Purchaser shall be required to deliver to Seller
prior to the expiration of the Inspection Period the following with respect to
each Defect: (a) a copy of the inspection report(s) reflecting the particular
defect(s) (collectively, the "Inspection Report"), and (b) a written proposal
from a responsible licensed contractor selected by Purchaser setting forth the
cost (and not a range of costs) of remedying the particular defect (the "Cost")
reflected in the Inspection Report (the "Purchaser Estimate"). The Inspection
Report and the Purchaser Estimate shall be referred to collectively hereinafter
as the "Notice". If Seller agrees with the Purchaser Estimate then the Cost
shall equal the amount of the Purchaser Estimate. If Seller does not agree
with the Purchaser Estimate, then Seller shall deliver to Purchaser, within ten
(10) business days after receipt of the Notice, a binding written proposal from
a responsible licensed contractor selected by Seller setting forth the costs
such Contractor will charge for remedying the applicable Defect(s) (the "Seller
Estimate"), and the Cost shall equal the average of the Purchaser Estimate and
the Seller Estimate.
7.5. The term "Structural Material Defect" shall mean defects in the
roof, structure, electrical, site drainage, mechanical or plumbing system of
the Improvements. The word "defect" in the preceding sentence shall mean the
system's or component's failure to be in good working order, but shall not take
into account the scope of the design specifications or capacity of the system
or component. Notwithstanding anything to the contrary contained herein, the
Property's failure to comply with applicable building codes, other applicable
<PAGE>
laws, and/or the Americans With Disabilities Act, shall not count toward or
constitute a Structural Material Defect.
7.6. The term "Environmental Material Defect" shall mean the existence of
"Hazardous Materials" (hereinafter defined) located in, on or under the
Property in violation of any Environmental Laws (hereinafter defined), except
that notwithstanding anything to the contrary contained herein, nothing
disclosed in the Existing Report (hereinafter defined) shall count toward or
constitute an Environmental Material Defect, and the cost to remedy all
conditions disclosed in the Existing Report shall not count toward nor
constitute an Environmental Material Defect.
7.7. If this Agreement is terminated in accordance with this Paragraph ,
the Earnest Money together with all interest earned thereon shall be
immediately returned to Purchaser and thereupon neither party shall have any
rights against the other or any further liability to the other, except for
Purchaser's obligations pursuant to Paragraph hereof and except as otherwise
specifically set forth in this Agreement to survive the termination hereof.
Purchaser's obligation to indemnify Seller and restore the Property, as more
fully set forth in Paragraph , shall survive the termination of this Agreement,
the Closing, and the delivery of the Deed.
7.8. To the extent there exists an Environmental Material Defect for which
a third party (other than Purchaser or Seller) is liable and Seller elects to
give a credit to Purchaser pursuant to Paragraph 7.3, Seller shall retain all
rights to pursue a claim against such liable third party to receive
compensation for such credit and any other damages suffered by Seller as a
result thereof.
7.9. Seller acquired title to the Property by foreclosure (or
deed-in-lieu thereof) and, therefore, Seller can make no representations or
warranties relating to the condition of the Property or the Personal Property.
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,
<PAGE>
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: (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.
7.10. 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.
7.11. Seller has provided to Purchaser the following existing report:
Phase I Environmental Report prepared by ATC Environmental, dated April 24,
1992 ("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. Furthermore, Purchaser
acknowledges that it will be purchasing the Property with all faults disclosed
in the Existing Report.
<PAGE>
8. CLOSING. The closing of this transaction (the "Closing") shall be on
March 29, 1996 (the "Closing Date"), at the office of Title Insurer, St. Louis,
Missouri at which time Seller shall deliver possession of the Property to
Purchaser. 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 Missouri, 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.
9. CLOSING DOCUMENTS.
9.1. On the Closing Date, Seller and Purchaser shall execute and deliver
to one another a joint closing statement. In addition, Purchaser shall deliver
to Seller the balance of the Purchase Price, an assumption of the documents set
forth in Paragraph 9.2.3 and 9.2.4 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.
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 quit claim 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;
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;
9.2.9. evidence of the termination of the management agreement;
<PAGE>
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
9.2.11. an updated rent roll.
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 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, 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 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 ITS WILLFUL REFUSAL TO DELIVER THE DEED, 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; management fees in the amount of
5%; 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 to the balance of
the cash due at Closing. Assessments payable in installments which are due
subsequent to the Closing Date shall be paid by Purchaser. If the amount of
any of the items to be prorated is not then ascertainable, the adjustments
thereof shall be on the basis of the most recent ascertainable data. 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 ten (10) days
following each receipt by Purchaser of a Post-Closing Receipt, Purchaser shall
pay such Post-Closing Receipt to Seller. Purchaser shall use its best efforts
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
<PAGE>
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 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 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 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, Inc. (to be paid by Seller) and
Mills Realty, Inc. (to be paid by Purchaser). Seller's commission to CB
Commercial Real Estate Group, Inc. shall only be payable out of the proceeds of
the sale of the Property in the event the transaction set forth herein closes.
Purchaser shall be responsible for all commissions payable to Mills Realty,
Inc. 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, Inc. 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 Al Lieberman (the "Seller's Representative"), and any
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 this Agreement and consummate
the transactions contemplated herein; (iii) the rent rolls which Seller has
submitted to the Purchaser and updated as of the Closing Date are accurate as
of the date set forth thereon; and (iv) the Personal Property is and will be,
<PAGE>
as of Closing, free and clear of all liens which may have attached during
Seller's ownership of the Personal Property.
16.3. Purchaser hereby represents and warrants to Seller that
Purchaser has the full right, power and authority to execute this Agreement and
consummate the transactions contemplated herein.
17. LIMITATION OF LIABILITY. Neither Seller, nor any of its respective
beneficiaries, shareholders, partners, officers, 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: Alan Lieberman
(708) 317-4360
(708) 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)
TO PURCHASER: The Mary Camenzind Boland Trust
The John Camenzind Trust
c/o RCI Management
439 S. Kirkwood
Suite 209
St. Louis, Missouri 63122
Attention: Robert Camenzind
(314) 966-2211
(314) 966-5441 (FAX)
<PAGE>
and one copy to: Suelthaus & Walsh, P.C.
7733 Forsyth Boulevard
Suite 1200
St. Louis, Missouri 63105
Attention: Stuart H. Zimbalist, Esq.
(314) 727-7676
(314) 727-7166 (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.
20. EXECUTION OF AGREEMENT AND ESCROW AGREEMENT. Purchaser will execute two
(2) copies of this Agreement and three (3) copies of the Escrow Agreement and
forward them to Seller for execution, accompanied 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.
21. GOVERNING LAW. The provisions of this Agreement shall be governed by the
laws of the State of Missouri, except that with respect to the retainage of the
Earnest Money as liquidated damages the laws of the State of Illinois shall
govern.
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.
<PAGE>
25. 1031 EXCHANGE. Seller agrees to cooperate with Purchaser to assist
Purchaser to qualify this sale and purchase of the Property as part of a
like-kind exchange under Section 1031 of the Internal Revenue Code. Purchaser
shall be responsible for all costs related to such like-kind exchange.
IN WITNESS WHEREOF, the parties hereto have put their hand and seal as of
the date first set forth above.
PURCHASER:
/s/Mary Camenzind Boland, Trustee
----------------------------------------
Mary Camenzind Boland as Trustee of the Mary
Camenzind Boland Revocable Living Trust U/I
dated September 12, 1994
The John Hazzard Camenzind Trust created under
will dated July 13, 1967
By: South Side National Bank, as Trustee
By: /s/Steven L. Ray
-------------------------------------
Name: Steven L. Ray
-------------------------------------
Its: Vice President & Senior Trust Officer
-------------------------------------
SELLER:
Willow Bend Investors, an Illinois
limited partnership
By:Balcor Partners - XVI, an Illinois general
partnership, a 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/Al Lieberman
-----------------------------------
Name: Al Lieberman
-----------------------------------
Its: Senior V.P.
-----------------------------------
<PAGE>
of CB Commercial Real Estate Group, Inc. ("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 __, 199_ 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
stating that no other fees or commissions are due to it from Seller or
Purchaser.
CB Commercial Real Estate Group, Inc.
By:
----------------------------
Name:
----------------------------
Its:
----------------------------
<PAGE>
Kenneth P. Aston, JR. of Mills Realty, Inc. ("Purchaser's Broker") executed
this Agreement in its capacity as a real estate broker and acknowledges that
the fee or commission due it from Purchaser as a result of the transaction
described in this Agreement is as set forth in an agreement between Purchaser
and Purchaser's Broker, and said fee or commission is payable solely by
Purchaser. Purchaser'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. Purchaser's Broker agrees to deliver a receipt
to the Seller at the Closing for the fee or commission due Purchaser's Broker
and a release stating that no other fees or commissions are due to it from
Seller or Purchaser.
Mills Realty, Inc.
By: /s/Kenneth P. Aston, JR.
-------------------------------
Name: Kenneth P. Aston, JR.
-----------------------------
Its: President
-----------------------------
<PAGE>
Exhibits
A - Legal
B - Personal Property
C - Escrow Agreement
D - Intentionally Omitted
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
