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) May 22, 1997
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 36-3244978
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Address of principal I.R.S. Employer
executive offices Identification
Number
60015
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Zip Code
Registrant's telephone number, including area code:
(847) 267-1600
<PAGE>
Item 2. Acquisition or Disposition of Assets
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North Hill Apartments
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In 1985, North Hill Apartments, DeKalb County, Georgia, was acquired by a
limited partnership (the "Joint Venture") the general partner of which was a
joint venture between the Partnership and an affiliate (the "Affiliate"). The
limited partner of the Joint Venture was an affiliate of the seller. The
Partnership contributed approximately $1,924,275 and the Affiliate contributed
approximately $5,772,000 from their respective offering proceeds towards the
purchase of the property. The property was purchased subject to $18,700,000 of
first mortgage financing. In 1986, the unaffiliated limited partner assigned
its interest in the Joint Venture to the Partnership and the Affiliate, which
hold interests of 25% and 75%, respectively, in the Joint Venture. In 1994,
the Joint Venture repaid the first mortgage loan with proceeds from a new first
mortgage loan of $16,795,600, proceeds of a $1,350,000 note (the "Note") from
two unaffiliated parties, and Joint Venture cash reserves of approximately
$554,400. The Note is non-interest bearing and will be repaid only to the
extent that the net proceeds from the sale of the property exceed a certain
predetermined level.
On May 22, 1997, the Joint Venture contracted to sell the property for a sale
price of $22,500,000 to an unaffiliated party, ERP Operating Limited
Partnership, an Illinois limited partnership. The purchaser has deposited
$300,000 into an escrow account as earnest money. The purchaser will assume the
existing first mortgage loan which is expected to have an outstanding principal
balance of approximately $16,414,000 at closing, scheduled to occur on July 7,
1997. The first mortgage loan described above was funded through the sale of
tax-exempt bonds. If certain conditions described in the agreement of sale
relating to the assumption of the loan, including the consents of the lender
and the issuer of the bonds, have not been satisfied by June 30, 1997, the
Joint Venture and the purchaser each have the right to extend the date by which
such obligations must be met to July 28, 1997, in which event the closing will
be held five days after the conditions are satisfied, in no event later than
August 4, 1997.
The remaining portion of the sale price will be payable in cash at closing.
From the proceeds of the sale, the Joint Venture will pay $450,000 as a
brokerage commission to an affiliate of the third party providing property
management services for the property. The net proceeds from the sale will not
exceed the predetermined level requiring repayment of the Note. Therefore, no
portion of the sale proceeds will be utilized towards the repayment of the
Note, and the Note will be forgiven. The Joint Venture will receive the
remaining proceeds of approximately $5,636,000, less closing costs. Of such
proceeds, $500,000 will be retained by the Joint Venture and will not be
available for use or distribution by the Joint Venture until 120 days after
closing. The Partnership's share of the total net proceeds will be
approximately $1,409,000, less the Partnership's share of closing costs.
Neither the General Partner nor any affiliate will receive a brokerage
commission in connection with the sale of the property. The General Partner
will be reimbursed by the Joint Venture for actual expenses incurred in
connection with the sale.
The Partnership and affiliates of the Partnership sold more than 20 properties
to the purchaser during 1996 and 1997.
<PAGE>
The closing is subject to the satisfaction of numerous terms and conditions,
including conditions relating to the assumption of the mortgage loan by the
purchaser. 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) Agreement of Sale relating to the sale of North Hill
Apartments, Atlanta, Georgia.
No information is required under Items 1, 3, 4, 5, 6 and 8 and these items
have, therefore, been omitted.
Signature
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Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this Report to be signed on its behalf by the
undersigned hereunto duly authorized.
BALCOR REALTY INVESTORS 85 - SERIES I
A REAL ESTATE LIMITED PARTNERSHIP
By: Balcor Partners-XVI, 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: June 2, 1997
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<PAGE>
North Hill Apartments
Atlanta, Georgia
AGREEMENT OF SALE
THIS AGREEMENT, entered into as of the 16th day of May, 1997, by and
between ERP OPERATING LIMITED PARTNERSHIP, an Illinois limited partnership
("Purchaser") and N.H. ASSOCIATES, an Illinois limited partnership ("Seller").
WITNESSETH:
1. PURCHASE AND SALE. Purchaser agrees to purchase and Seller agrees to
sell at the price of Twenty-Two Million Five Hundred Thousand and No/100
Dollars ($22,500,000.00), that certain property ("Property") in Atlanta,
Georgia, more particularly described on Exhibit A attached hereto, which
Property is known as North Hill Apartments and contains 420 units and
approximately 30.35 acres. Included in the "Purchase Price" (as hereinafter
defined) is all of Seller's right, title and interest in the personal property
set forth on Exhibit B, which shall be transferred to Purchaser at "Closing"
(as hereinafter defined) by a Bill of Sale; and all right, title and interest
of Seller (whether now or hereafter existing) in and to any land lying in the
bed of any street, alley, road or avenue (whether open, closed or proposed)
within, in front of, behind or otherwise adjoining the Property or any of it;
and all right, title and interest of Seller (whether now or hereafter existing)
in and to any award made or to be made as a result of or in lieu of
condemnation, and in and to any award for damage to the Property or any part
thereof by reason of casualty (all of the foregoing being included within the
term "Property"); and all of the building, structures, fixtures, facilities,
installations and all of Seller's right, title and interest in other
improvements of every kind and description now or hereafter in, on, over and
under the land, including, without limitation, any and all recreational
buildings, structures and facilities, plumbing, air conditioning, heating,
ventilating, mechanical, electrical and other utility systems, parking lots,
landscaping, sidewalks, swimming pools, signs and light fixtures which are not
owned by tenants under leases (all of the foregoing being included within the
term "Property"); and all of Seller's right, title and interest in all of the
following which are in Seller's possession: existing surveys, blue prints,
drawings, plans and specifications (including, without limitation, structural,
HVAC, mechanical and plumbing, water and sewer plans and specifications); all
available tenant lists and data, correspondence with present and prospective
tenants, vendors, suppliers, utility companies and other third parties,
booklets, manuals and promotional and advertising materials concerning the
Property or any part thereof (all of the foregoing being included within the
term "Property"); and all right, title and interest of Seller in and to the
intangible personal property now or hereafter owned by Seller and used in
connection with or arising from the business now or hereafter conducted on or
from the Property or any part thereof, including, without limitation, claims,
choses in action, lease and other contract rights, names and telephone exchange
numbers (all of the foregoing being included within the term "Property"). The
computer software located at the Property is not included in the conveyance to
Purchaser.
<PAGE>
2. PURCHASE PRICE. The purchase price (the "Purchase Price") shall be
paid as follows:
A. Upon the execution of this Agreement, the sum of $300,000.00
("Earnest Money") to be held in escrow by the Escrow Agent (as that term is
defined in the "Escrow Agreement" [as hereinafter defined]) by and in
accordance with the provisions of the Escrow Agreement ("Escrow Agreement")
attached hereto as Exhibit C;
B. The assumption by Purchaser of the obligations of Seller, as
"Owner" (as hereinafter defined) and borrower under the "Loan Documents" (as
hereinafter defined); and
C. On the "Closing Date" (as hereinafter defined), the balance of
the Purchase Price (i.e $22,500,000 less the outstanding principal amount of
the "Bonds" (as hereinafter defined) 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 D is a copy of a title commitment for
an owner's standard title insurance policy issued by Near North National Title
Corporation as agent for First American Title Insurance Company (hereinafter
referred to as "Title Insurer") dated April 4, 1997, as updated by datedown
endorsement dated April 30, 1997 for the Property (the "Title Commitment").
During the Approval Period Purchaser shall have the right to review the status
of title of the Property (including, determining what endorsements, if any, the
Title Insurer will make available to Purchaser). If, prior to the expiration
of the Approval Period, Purchaser notifies Seller that Purchaser objects to the
status of title, then Seller shall have five (5) business days thereafter to
elect to (i) terminate this Agreement, in which case the Earnest Money,
including interest thereon, shall be returned to Purchaser immediately
following Seller's receipt of the "Reports" (as hereinafter defined) or (ii)
agree to cure the title objections identified by Purchaser, which cure may be
effectuated by causing the Title Insurer, at Seller's expense, to insure over
any title objection, if applicable. If this Agreement has not been theretofore
terminated, then promptly following the Approval Period, Purchaser and Seller
will identify the exceptions to title which have been agreed to by Purchaser
and Seller. Said exceptions to title are hereinafter referred to as the
"Permitted Exceptions". On the Closing Date, Seller shall cause the Title
Insurer to issue a standard title policy in conformance with the previously
delivered Title Commitment or a "marked up" commitment in conformity with the
Title Commitment, in either case, subject only to Permitted Exceptions or
"Unpermitted Exceptions" (as hereinafter defined) which have been waived by
Purchaser (the "Title Policy"). If the Title Policy or marked-up commitment
delivered at Closing discloses exceptions to title other than Permitted
Exceptions, then Purchaser may terminate this Agreement and obtain a return of
its Earnest Money, including interest thereon. Seller and Purchaser shall each
pay for one-half of the costs of the Title Commitment and Title Policy
(including the costs of any endorsements to, or extended coverage on, the Title
Policy).
<PAGE>
B. Purchaser acknowledges receipt of a survey ("Survey") of the
Property prepared by Construction Engineering Associates recertified March 21,
1997. Purchaser shall have until the end of the Approval Period to approve the
Survey. If Purchaser disapproves the Survey because it contains matters which
are not acceptable to Purchaser ("Survey Defects"), then upon notice delivered
to Seller by Purchaser prior to the expiration of the Approval Period, Seller
shall have five (5) days to either: (i) cause the Survey Defects to be removed
from the Updated Survey or (ii) cause the Title Insurer to insure against loss
or damage resulting from the Survey Defects ("Title Indemnity"). If Seller is
unwilling to do either (i) or (ii) above, then Purchaser shall have the right
to elect to terminate this Agreement. Purchaser shall notify Seller of its
election within five (5) days after receipt of notice from Seller that the
Survey Defects will not be removed or that the Title Insurer will not issue the
Title Indemnity. If Purchaser fails to make the election within the aforesaid
five (5) days, then it shall be conclusively presumed that Purchaser has
elected to take title to the Property subject to the Survey Defects. If
Purchaser elects to terminate this Agreement pursuant to this Paragraph, then
the Earnest Money plus all accrued interest shall be delivered to Purchaser
immediately following Seller's receipt of the Reports. Purchaser and Seller
shall evenly divide the costs of the Survey (including any modifications
thereto made at the request of Purchaser).
4. CONDITION OF TITLE/CONVEYANCE. Seller agrees to convey fee simple
title to the Property by Special Warranty Deed in the form of Exhibit E
attached hereto (the "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.
Notwithstanding the aforesaid, Seller shall be required to remove all
Unpermitted Exceptions which are liens of a definite or ascertainable amount.
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. Purchaser and Seller shall evenly divide
the costs of the documentary stamps (if any) 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, all costs of the Title Commitment, Title
Policy, modifications to the Survey, escrow charges and all other charges of
the Title Insurer in connection with this transaction. Seller and Purchaser
agree to evenly divide and pay for any and all fees and charges required by the
"Lender Entities" (as said term is hereinafter defined) and any other
applicable third party in connection with the assumption of the Bonds and the
Loan Documents, including, without limitation, non-refundable application fees,
transfer or assumption fees, the costs of any necessary opinion of bond counsel
retained by Purchaser in connection with the assumption of the Bonds and the
Loan Documents and recording and title insurance costs and expenses. Purchaser
and Seller shall be responsible for the costs of their respective attorneys
(except to the extent that Purchaser's bond counsel prepares any necessary
legal opinion in connection with the assumption of the Bonds, in which case, as
provided above, the cost of preparing such opinion shall be evenly divided
between Purchaser and Seller).
<PAGE>
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 $225,000 or less, or in the case of Personal Property, for
$25,000.00 or less, as determined by Seller in good faith, then Seller shall
either repair such damage prior to Closing or, at Purchaser's option (which
shall be exercised by Purchaser within ten (10) days after notice of such
casualty), allow Purchaser a credit against the Purchase Price in an amount
equal to the reasonably estimated cost of repair. Seller shall retain all
insurance proceeds. If the cost of repair or restoration exceeds the aforesaid
amounts (as determined by Seller in good faith), then Purchaser can, upon
notice to Seller within ten (10) days after notice of such casualty, elect to
either: (a) cause Seller to repair and restore same, in which event the Closing
Date will be extended until such date as may reasonably be required to complete
the repair or restoration; or (b) terminate this Agreement upon notice to
Seller served within ten (10) days of notice of such casualty or (c) accept the
Property in its damaged condition together with an assignment from Seller of
all insurance proceeds and receive a credit at Closing in the amount of the
deductible.
B. If condemnation proceedings ("Proceedings") have been instituted
against the Property and such Proceedings are in an amount less than $100,000,
then Purchaser shall take the Property subject to the Proceedings and an
assignment of Seller's interest in the Proceedings. If the Proceedings are 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 as may hereinafter be specifically set forth in this
Agreement, Purchaser is not relying on Seller having made any inquiry as to the
condition of the Property or the leases. Purchaser acknowledges and agrees
that, except as may hereinafter be specifically set forth in this Agreement, 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
<PAGE>
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 and,
except as may hereinafter be specifically set forth in this Agreement, Seller
makes no representation that the Property complies with any fire codes or
building codes. Purchaser hereby releases Seller from any and all liability in
connection with any claims which Purchaser may have against Seller, and
Purchaser hereby agrees not to assert any claims, for damage, loss,
compensation, contribution, cost recovery or otherwise, against Seller, whether
in tort, contract, or otherwise, relating directly or indirectly to the
existence of asbestos or Hazardous Materials or Hazardous Substances on, or
environmental conditions of, the Property, or arising under the "Environmental
Laws" (as such term is hereinafter defined), or relating in any way to the
quality of the indoor or outdoor environment at the Property. This release
shall survive the Closing. As used herein, the term "Hazardous Materials" or
"Hazardous Substances" means (i) hazardous wastes, hazardous materials,
hazardous substances, hazardous constituents, toxic substances or related
materials, whether solids, liquids or gases, including but not limited to
substances defined as "hazardous wastes," "hazardous materials," "hazardous
substances," "toxic substances," "pollutants," "contaminants," "radioactive
materials," or other similar designations in, or otherwise subject to
regulation under, the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended ("CERCLA"), 42 U.S.C. Section 9601 et seq.;
the Toxic Substance Control Act ("TSCA"), 15 U.S.C. Section 2601 et seq.; the
Hazardous Materials Transportation Act, 49 U.S.C. Section 1802; the 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. Seller and Purchaser hereby
acknowledge that such information has been provided to Purchaser at Purchaser's
request solely as illustrative material. Except as may hereinafter be
<PAGE>
specifically set forth 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 releases Seller from any liability with respect
to such historical information.
8. ASSUMPTION OF BONDS AND LOAN DOCUMENTS/CONDITION PRECEDENT.
A. The Property is currently encumbered by those certain
Multifamily Housing Revenue Refunding Bonds, (North Hill Apartments Project)
Series 1994 in the original aggregate principal amount of $16,880,000.00 (the
"Bonds") as evidenced and/or secured by, among other items, the following
documents (together with any amendments, modifications or supplements thereof
or thereto, collectively, the "Loan Documents"): (a) the Multifamily Note (the
"Note") made by Seller for the benefit of Issuer, endorsed by Issuer to Lender,
and endorsed by Lender to the Federal National Mortgage Association ("Fannie
Mae"); (b) that certain Indenture of Trust dated as of December 1, 1994 (the
"Indenture") between the Housing Authority of the County of DeKalb, Georgia, a
public body corporate and politic of the State of Georgia (the "Issuer") and
Bank South N.A., Atlanta, Georgia, a national banking association (the
"Trustee"); (c) the Financing Agreement dated as of December 1, 1994 (the
"Financing Agreement") pursuant to which the proceeds of the Bonds were loaned
to Seller, by and among the Issuer, the Trustee, the Seller and Washington DUS,
Inc., a Delaware corporation (the "Lender"; Fannie May, the Issuer, the Trustee
and the Lender are sometimes hereinafter referred to collectively as the
"Lender Entities"); (d) the Second Amended and Restated Land Use Restriction
Agreement dated as of December 1, 1994 (the "Regulatory Agreement") by and
among the Issuer, the Seller and the Trustee; (e) the Multifamily Deed to
Secure Debt, Assignment of Rents and Security Agreement made by Seller for the
benefit of Issuer ("Deed to Secure Debt"); (f) the Replacement Reserve and
Security Agreement dated December 1, 1994 (the "Replacement Reserve") by and
between Seller and Lender; and (g) the Guaranty Agreement dated December 1,
1994 (the "Guaranty") by and between Balcor Realty Investors 85-Series III, a
Real Estate Limited Partnership, an Illinois limited partnership, and the
Issuer; and (h) those documents listed on Exhibit O attached hereto.
B. Seller agrees that Purchaser's obligation to close the
transaction contemplated by this Agreement, in addition to any other conditions
or contingencies set forth in this Agreement, shall be subject to the
satisfaction of the following conditions and contingencies on or before June
30, 1997: (i) Purchaser shall be satisfied, in its sole discretion, with the
tax exempt status of the Bonds; (ii) Purchaser shall have obtained (and
Purchaser covenants and agrees to use good faith efforts to so obtain) any
written consents required by the Lender Entities to affect an assignment and
assumption of the Loan Documents and a transfer of the Property to Purchaser,
<PAGE>
subject only to such conditions as Purchaser deems acceptable in its sole
discretion; and (iii) Purchaser and the acceptable Lender Entities shall have
agreed upon the form of documentation required to effect the assignment and
assumption of the Loan Documents and transfer of the Property (the "Transfer
Documents"), the form of which Transfer Documents shall be acceptable to
Purchaser in its sole discretion and the applicable Lender Entities shall have
committed in writing to execute and deliver the Transfer Documents at Closing.
However, Purchaser hereby agrees that if the Transfer Documents do not contain
a complete release of Seller for any and all liability arising after the
Closing Date under the Bonds and the Loan Documents, then Purchaser shall
provide, and Seller will accept in lieu of such a release, an indemnification
by Purchaser of Seller for all liability under the Bonds and the Loan Documents
arising after the Closing Date. The condition contained in this subsection B
is hereinafter referred to as the "Condition Precedent").
C. If the Condition Precedent has not been satisfied in accordance
with the terms above, then Seller or Purchaser may deliver notice ("Extension
Notice") to the other party on or before June 30, 1997 extending the date for
the satisfaction of the Conditions Precedent until July 28 1997, in which event
the Closing of this transaction shall be extended to the date which is five (5)
business days after the satisfaction of the Condition Precedent, but in no
event later than August 4, 1997. The receiving party shall acknowledge the
Extension Notice and forward a copy of the acknowledged Extension Notice to the
Title Insurer as evidence of the parties' intent to extend the Closing Date.
In the event any of the Conditions Precedent are not satisfied on or before
June 30, 1997, and Seller or Purchaser does not deliver an Extension Notice in
accordance with the terms hereof, then the Agreement shall be terminated, and
the Earnest Money shall be immediately paid to Purchaser, together with any
interest earned thereon, and neither Seller nor Purchaser shall have any right,
obligation or liability under the Agreement except for the indemnities set
forth in Paragraph 7A of this Agreement. In the event Seller or Purchaser
elects to extend the date for satisfying the Condition Precedent in accordance
with the terms of this Paragraph 8 and the Condition Precedent has not been
satisfied on or before July 28, 1997, then this Agreement shall be terminated,
and the Earnest Money shall be immediately paid to Purchaser, together with any
interest earned thereon, and neither Seller nor Purchaser shall have any right,
obligation or liability under the Agreement, except for the indemnity set forth
herein in Paragraph 7A of this Agreement.
D. In the event the Condition Precedent has been satisfied, then on
the Closing Date, the Purchaser shall assume all obligations of the Seller
under the Loan Documents. In addition, Purchaser or Purchaser's affiliate
shall assume all obligations of the "Key Principal" under the terms of the
Multifamily Note and the Deed to Secure Debt. Seller hereby authorizes
Purchaser to discuss any and all issues relating to the Bonds and the Loan
Documents with Fannie Mae, the Issuer, the Trustee, the Lender and any other
interested parties. Seller will reasonably cooperate with Purchaser in
facilitating such discussions.
9. CLOSING. The closing ("Closing") of this transaction shall be on
July 7, 1997 unless extended as provided in Paragraph 8 hereof ("Closing
Date"), at the office of the Seller's attorney, at which time Seller shall
deliver possession of the Property to Purchaser.
<PAGE>
10. CLOSING DOCUMENTS.
A. On the Closing Date, Purchaser shall deliver to Seller an
executed closing statement, the balance of the Purchase Price, and such other
documents as may be reasonably required in order to consummate the transaction
as set forth in this Agreement.
B. On the Closing Date, Seller shall deliver to Purchaser
possession of the Property; the Deed subject to the Permitted Exceptions and
those Unpermitted Exceptions waived by Purchaser; a UCC search from appropriate
jurisdictions reflecting no liens against Seller, or a termination statement as
to any lien secured by a UCC filing; 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 (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), the original leases to be delivered to
Purchaser at the Property; a non-foreign affidavit (in the form of Exhibit J
attached hereto) and such other documents as may be reasonably required by the
Title Insurer in order to consummate the transaction as set forth in this
Agreement and shall cause the Title Company to deliver the Title Policy subject
only to Permitted Exceptions and Unpermitted Exceptions waived by Purchaser.
11. DEFAULT BY PURCHASER. ALL EARNEST MONEY DEPOSITED INTO THE ESCROW IS
TO SECURE THE TIMELY PERFORMANCE BY PURCHASER OF ITS OBLIGATIONS AND
UNDERTAKINGS UNDER THIS AGREEMENT. IN THE EVENT THIS TRANSACTION FAILS TO
CLOSE DUE TO THE 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.
12. SELLER'S DEFAULT. IF THIS SALE IS NOT COMPLETED BECAUSE OF SELLER'S
DEFAULT, PURCHASER'S SOLE REMEDY SHALL BE ACTUAL DAMAGES NOT TO EXCEED THE
AMOUNT OF THE EARNEST MONEY THEN ON DEPOSIT WITH THE ESCROW AGENT, PLUS 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.
<PAGE>
13.
A. PRORATIONS. Prepaid or accrued (as the case may be) interest on
the Loan Documents, rents for the month of the Closing (exclusive of delinquent
rents, but including prepaid rents); any previously paid signing bonus or
similar payment relating to any laundry room, cable, telephone or similar
agreement in effect as of the Closing, refundable security deposits with
interest if required by local law (which will be assigned to and assumed by
Purchaser and credited to Purchaser at Closing); refundable and non-refundable
pet and cleaning fees and deposits, water and other utility charges; fuels;
prepaid operating expenses; real and personal property taxes (as provided for
in the next following sentence); 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. Real property taxes
shall be prorated based on the following information in the following
circumstances: (i) if the current tax bill is available, real property taxes
shall be prorated based on that tax bill; (ii) if the tax bill for the current
tax year is not available and the assessed valuation for the Property for the
current tax year is not available, real property taxes shall be prorated based
on 106% of the most recently available tax bill; and (iii) if the tax bill for
the current tax bill is not available but the assessed valuation for the
Property for the current tax year is available, real property taxes shall be
prorated based on 101% of the tax rate for the prior tax year multiplied by the
equalization factor for the prior tax year, if applicable, multiplied by the
current assessed valuation for the Property. In addition, Seller shall
receive as a credit from Purchaser the amount of any escrow and reserve
accounts relating to the Bonds and/or the Loan Documents (including, without
limitation, debt service escrow accounts, tax escrow accounts, replacement
reserves, repair reserves and insurance escrow accounts). Finally, Purchaser
shall receive as a credit at Closing any amounts, if any, then owing by the
Seller to the Lender which are unrelated to the assumption of the Bonders by
the Purchaser or the release of Seller under the Bonds. 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 13B below, and
errors in calculation on the closing statement. 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 thirty (30) days or less, then the first rent
collected by Purchaser will be delivered to Seller for the Delinquent Rent. If
Delinquent Rent is in arrears for more than thirty (30) days, then rents
collected by Purchaser shall first be applied to current rent and then to
Delinquent Rent. Purchaser shall deliver Seller's pro rata share within 10
days of Purchaser's receipt of that Delinquent Rent. Within 120 days after the
Closing Date, Purchaser shall deliver to Seller a reconciliation statement of
rents collected by Purchaser through the first 90 days after the Closing Date.
<PAGE>
Seller retains the right to conduct an audit, at reasonable times and upon
reasonable notice, of Purchaser's books and records to verify the accuracy of
the reconciliation statement and if such audit discloses that additional funds
are owing , then the party owing such funds shall promptly pay such sums to the
party so owed. This subparagraph of this Agreement shall survive the Closing
and the delivery and recording of the Deed.
14. 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 11.
15. ASSIGNMENT. The Purchaser shall not have the right to assign its
interest in this Agreement without the prior written consent of the Seller,
except to an entity directly or indirectly controlled by Purchaser. Any
non-permitted 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 11. Seller hereby
consents to an assignment to an entity which is an affiliate of Purchaser,
provided Purchaser notifies Seller of the assignment at least five (5) business
days prior to the Closing Date.
16. BROKER. Seller hereby represents and warrants to Purchaser that no
broker commission or finder fee is required to be paid by Seller in connection
with this transaction other than to Insignia Mortgage & Investment Company
(hereinafter referred to as the "Broker"), which commission shall be paid by
Seller. Seller's commission to Broker shall only be payable out of the
proceeds of the sale of the Property in the event the transaction set forth
herein closes and shall be payable as set forth in the Broker Joinder attached
hereto. Purchaser hereby represents and warrants to Seller that no broker
commission or finder fee is required to be paid by Purchaser in connection with
this transaction. Seller shall indemnify, defend and hold the Purchaser and
any partner, affiliate, parent of 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 "Purchaser Indemnitee") 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 Seller
for any fee, commission or compensation on account of this Agreement, its
negotiation or the sale hereby contemplated. Purchaser shall indemnify, defend
and hold the Seller and any partner, affiliate, parent of Seller and all
shareholders, employees, officers and directors of Seller or Seller's parent or
affiliate (each of the above is individually referred to as "Seller
Indemnitee") 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 Purchaser for any fee, commission or compensation on
account of this Agreement, its negotiation or the sale hereby contemplated
other than any claim of Broker, which commission shall be paid by Seller. The
provisions of this Paragraph 15 will survive the Closing and delivery of the
Deed.
<PAGE>
17. DOCUMENTS, INSPECTION OF PROPERTY AND APPROVAL PERIOD.
A. Seller has delivered to Purchaser copies of the most recent
available tax bills, rent rolls, insurance premiums, service contracts, utility
account numbers, year-end 1995 and year-to-date 1996 and 1997 operating
statements (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 June 4, 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 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, in its sole and absolute discretion, it must be by a notice ("Notice
of Disapproval") delivered to Seller and the Escrow Agent prior to the
expiration of the Approval Period. The Notice of Disapproval delivered to
Seller shall be accompanied by copies of all third-party reports ("Reports")
which Purchaser has received during the Approval Period. Upon receipt of the
Notice of Disapproval and copies of the Reports, the Earnest Money plus the
interest accrued thereon shall be returned to the Purchaser. If Purchaser does
not timely deliver a Notice of Disapproval and copies of the Reports 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.
18. SURVIVAL OF INDEMNITY. Notwithstanding anything in this Agreement to
the contrary, the parties' obligations to indemnify, defend and hold each other
harmless under various provisions of this Agreement shall forever survive the
termination of this Agreement or the Closing and delivery and recording of the
Deed.
19. SELLER'S REPRESENTATIONS, WARRANTIES AND COVENANTS.
A. Any reference herein to Seller's knowledge, representation,
warranty or notice of any matter or thing, shall only mean such knowledge or
notice that has actually been received by Mike Becker, and any representation
or warranty of the Seller is based upon those matters of which Mike Becker has
<PAGE>
actual knowledge. A copy of this Paragraph 19 shall be delivered to the
resident manager of the Property within two (2) days after the execution by
Seller of this Agreement, with a request to advise Mike Becker within five (5)
business days after receipt by the resident manager as to the accuracy and
truthfulness of the representations and warranties. Mike Becker shall notify
Purchaser as to the response of the resident manager by May 19, 1997 if the
resident manager indicated that any of the representations or warranties were
incorrect. If Mr. Becker fails to so notify Purchaser, Purchaser shall be
entitled to conclude that the resident manager reviewed the representations and
warranties and that they are correct. 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 and warranties, all of which
are made to the Seller's knowledge. The parties agree that the representations
contained herein shall survive Closing for a period of 120 days (i.e. the
claiming party shall have no right to make any claims against the other party
for a breach of a representation or warranty after the expiration of 120 days
immediately following Closing.)
(1) Except as set forth on Exhibit K attached hereto, 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.
(2) The rent roll attached hereto as Exhibit L and which shall
be updated as of the Closing Date is true and accurate. No tenant under any
lease has any option or right of first refusal to acquire any ownership
interest in the Property or any right to terminate its lease or is entitled to
any rebate or concession except as set forth in its lease or on Exhibit L.
(3) Except as set forth on Exhibit K attached hereto, Seller
has no knowledge of any pending or threatened litigation, claim, cause of
action or administrative proceeding concerning the Property.
(4) Attached hereto as Exhibit M are copies of all licenses and
permits which are in Seller's possession and all service contracts affecting
the Property (none of which is in default), except for the management agreement
which shall be terminated as of the Closing Date; and Seller shall not enter
into any new service contracts which cannot be terminated within 30 days
written notice or modify or extend any existing service contracts without the
prior consent of Purchaser which consent shall not be unreasonably withheld or
delayed.
(5) Seller has not received any written notice from any tenant
occupying the Property that Seller is in default under that tenant's lease.
(6) Except as set forth on Exhibit K attached hereto, Seller
has not received from any governmental authority, any written notice of zoning,
building, fire, health code or other violations with respect to the Property,
or any part thereof, that will not have been corrected prior to Closing solely
at Seller's expense.
<PAGE>
(7) Seller is duly organized, validly existing, qualified and
empowered to conduct its business, and has full power and authority to perform
and comply with the terms of this Agreement. Neither the execution and
delivery of this Agreement nor its performance will conflict with or result in
the breach of Seller's partnership agreement or any contract or agreement to
which Seller is a party or by which Seller is bound.
(8) This Agreement is valid and enforceable against Seller in
accordance with its terms and each instrument to be executed by Seller pursuant
to this Agreement or in connection herewith will, when executed and delivered,
be valid and enforceable against Seller in accordance with its terms.
(9) Seller has not received written notice from any
governmental authority alleging that the Property presently contains Hazardous
Materials or Hazardous Substances.
(10) As of the Closing Date, no leasing commissions will be due
subsequent to the Closing Date.
(11) None of the on-site employees is employed by the Seller.
(12) Through the Closing Date, Seller shall continue to operate,
manage and maintain the Property in the same manner as prior to the execution
of this Agreement.
(13) Seller shall not extend or otherwise renew any lease
without the prior written consent of Purchaser, except for any renewal or other
extension of a lease providing for a monthly rental of not less than the
monthly rental being presently charged for a similar apartment and for a period
of time not to exceed twelve (12) months.
(14) Seller agrees not to distribute the net proceeds of the
Purchase Price up to a maximum amount of $500,000 to its partners for one
hundred twenty (120) days after the Closing Date.
(15) Exhibit B attached hereto is a list of all the personal
property owned by Seller and used in the operation of the Property. The
computer software used at the Property will not be transferred to the
Purchaser.
(16) The unaudited operating statements heretofore or hereafter
delivered to Purchaser by Seller are and shall be true, complete and correct in
all material respects.
(17) Seller has previously delivered to Purchaser or will
deliver to Purchaser during the Approval Period a true, correct and complete
copy of the Loan Documents specifically set forth in Section 12 hereof and
copies of any other Loan Documents requested by Purchaser which are in Seller's
possession. Furthermore, except as disclosed by Seller to Purchaser in
writing: (a) Seller has not received notice from any of the Lender Entities of
any default under the Bonds or the Loan Documents; and (b) Seller has not
received any written inquiries or notices from the U.S. Internal Revenue
Service or the U.S. Securities and Exchange Commission alleging a default under
the Bonds or the Loan Documents or any failure of Seller to perform under the
Bonds or Loan Documents which has not been cured.
<PAGE>
C. For the period commencing with the execution of this Agreement,
and expiring at the earlier of a termination of this Agreement or the Closing
Date, Seller will not offer the Property for sale to any other third party.
D. Seller shall furnish to Purchaser unaudited operating
statements, rent rolls and a leasing status report on a monthly basis.
E. Upon at least two (2) days' prior notice, Purchaser shall have
the right, during normal business hours, to visit the Property and the
interiors of the apartments.
F. Seller shall not apply security deposits towards delinquent rent
except for (i) those tenants who have vacated their apartments or (ii) tenants
who are in arrears for rent for more than thirty (30) days and Seller has
commenced the process of evicting the tenant.
G. Seller hereby agrees to remake the aforesaid representations and
warranties at Closing. If at any time after the execution of this Agreement,
Seller becomes aware of information which makes a representation or warranty
contained in this Agreement to become untrue in any material respect, Seller
shall promptly disclose said information to Purchaser. Provided the
representation or warranty was true when made and further provided that Seller
did not take any deliberate actions to cause the representation or warranty in
question to become untrue in any material respect, Seller shall not be in
default under this Agreement and the sole remedy of Purchaser shall be to
terminate this Agreement. Notwithstanding anything contained herein to the
contrary, if the status of any of the tenancies changes from the date of the
rent roll attached hereto and the date of the rent roll delivered at Closing,
provided the change in status is not caused by a breach of Seller's covenants
contained herein, then Purchaser shall not have the right to terminate this
Agreement or make any claim for a breach of a representation or warranty
hereunder involving the rent roll or tenancies thereunder. Purchaser and
Seller are prohibited from making any claims against the other party hereto
after the Closing with respect to any breaches of the other party's
representations and warranties contained in this Agreement that the claiming
party had actual knowledge of prior to Closing.
20. PURCHASER'S REPRESENTATIONS AND WARRANTIES. 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.
21. ENVIRONMENTAL REPORT. Attached to this Agreement as Exhibit N is the
following report (the "Report") of the Property, which Seller is delivering to
Purchaser, at Purchaser's request: (i) Report of Phase I Environmental Site
Assessment and Limited Asbestos Survey prepared by Law Engineering under
Project No. 5650402801 dated December 1, 1992 and (ii) Environmental/Industrial
Hygiene Assessment Report prepared by Comprehensive Environmental Assessment,
Inc. for the Lender dated July 11, 1994. Seller makes no representation or
warranty that the Report is accurate or complete. Purchaser hereby releases
Seller from any liability whatsoever with respect to the Report or, including,
without limitation, the matters set forth in the Report, the accuracy and/or
completeness of the Report.
<PAGE>
22. 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. Notwithstanding the foregoing to the contrary, for
any claims against Seller following Closing, if Seller fails to retain the net
proceeds of the Purchase Price up to a maximum amount of $500,000 (the "Cap")
for 120 days after the Closing Date, then the general partner of Seller shall
be liable for actual damages sustained by Purchaser as a result of Seller's
breach of a representation or warranty contained in Paragraph 19 of this
Agreement in an amount not to exceed the Cap. The foregoing Cap on liability
for a claim against the Seller following Closing shall not apply, and Seller's
general partner shall be liable, if Seller has entered into leases at the
Property for more than one year in breach of the representation identified in
Paragraph 19(B)(ii) hereof and Purchaser makes a claim against Seller for a
breach of said representation within 120 days immediately following Closing.
23. ORGANIZATIONAL DOCUMENTS.
A. On or before 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.
B. On or before the Closing Date, Seller will deliver copies of its
partnership agreement and appropriate certificates of authority to the
Purchaser.
24. TIME OF ESSENCE. Time is of the essence of this Agreement.
25. 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
<PAGE>
with copies to: The Balcor Company
2355 Waukegan Road
Suite A200
Bannockburn, Illinois 60015
Attn: John Powell
708/267-1600
708/317-4461 (FAX)
and
Daniel J. Perlman, Esq.
Katten Muchin & Zavis
Suite 2100
525 W. Monroe Street
Chicago, Illinois 60661
312/902-5532
312/222-1061 (FAX)
TO PURCHASER: Alan George
c/o Equity Residential Properties Trust
Two North Riverside Plaza
Suite 450
Chicago, Illinois 60606-2639
312/466-3932
312/454-9678 (FAX)
with a copy to: Bruce Strohm
c/o Equity Residential Properties Trust
Two North Riverside Plaza
Suite 450
Chicago, Illinois 60606-2639
312/466-3624
312/454-0434 (FAX)
and with a copy to: Kelly Stonebreaker, Esq.
Rosenberg & Liebentritt, P.C.
Two North Riverside Plaza
Suite 1515
Chicago, Illinois 60606
312/466-3456
312/454-0335 (FAX)
subject to the right of either party to designate a different address for
itself by notice similarly given. Any notice or demand so given shall be
deemed to be delivered or made on the next business day if sent by overnight
courier, or on the same day if sent by facsimile before the close of business,
or the next day if sent by facsimile after the close of business, or on the 4th
business day after the same is deposited in the United States Mail as
registered or certified matter, addressed as above provided, with postage
thereon fully prepaid. Any such notice, demand or document not given,
delivered or made by registered or certified mail or by overnight courier or by
facsimile as aforesaid shall be deemed to be given, delivered or made upon
receipt of the same by the party to whom the same is to be given, delivered or
made. Copies of all notices shall be served upon the Escrow Agent.
<PAGE>
26. 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. Purchaser shall deposit
the initial $300,000 of Earnest Money immediately following receipt by
Purchaser of a fully executed Purchase Agreement and Escrow Agreement.
27. GOVERNING LAW. The provision contained herein with reference to
retention of the Earnest Money in the event of Purchaser's default shall be
governed by the laws of the State of Illinois. The remaining provisions of
this Agreement shall be governed by the laws of the State of Georgia.
28. 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.
29. 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.
30. 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.
31. FINANCIAL STATEMENTS. Seller acknowledges that audited financial
statements pertaining to the Property for one prior calendar year of operation
and the portion of the calendar year in which the Closing occurs up to the
Closing Date are required to be filed by the Purchaser with the Securities and
Exchange Commission after the Closing. Accordingly, Seller agrees that for a
period of six (6) months after the Closing Date it shall provide Purchaser and
its representatives with access to Seller's books and records after the Closing
upon reasonable advance notice in order to conduct the required audit, which
shall be done at Purchaser's cost and expense.
<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:
May 19, 1997.
ERP OPERATING LIMITED PARTNERSHIP, an Illinois
limited partnership
By: Equity Residential Properties Trust,
a Maryland real estate investment trust
By: /s/ Christopher J. Beda
---------------------------------
Name: Christopher J. Beda
---------------------------------
Title: A.V.P.
---------------------------------
Executed by Seller on SELLER:
May 22, 1997
N.H. ASSOCIATES, an Illinois limited partnership
By: North Hill Partners, an Illinois joint
venture, its general partner
By: Thornhill Limited Partnership,
an Illinois limited partnership,
a joint venture partner
By: Balcor Partners-XVI, 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
general partner
By: /s/ John K. Powell, Jr.
----------------------------
Name: John K. Powell, Jr.
----------------------------
Title: Senior Vice President
----------------------------
<PAGE>
of Insignia Mortgage & Investment Company ("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 $ . Seller's Broker also
acknowledges that payment of the aforesaid fee or commission is conditioned
upon the Closing and the receipt of the Purchase Price by the Seller. Seller's
Broker agrees to deliver a receipt to the Seller at the Closing for the fee or
commission due Seller's Broker and a release in the appropriate form stating
that no other fees or commissions are due to it from Seller or Purchaser.
INSIGNIA MORTGAGE & INVESTMENT COMPANY
By:
--------------------------------------
<PAGE>
EXHIBITS
A - Legal
B - Personal Property
C - Escrow Agreement
D - Title Commitment
E - Deed
F - Bill of Sale
G - Assignment of Service Contracts
H - Assignment of Leases and Security Deposits
I - Notice to Tenants
J - Non-Foreign Affidavit
K - Compliance with Laws and Notice of Litigation
L - Rent Roll
M - Licenses, Permits and Service Contracts
N - Environmental Report
O - Additional Loan Documents
