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) August 16, 1996
BALCOR REALTY INVESTORS 85 - SERIES II
A REAL ESTATE LIMITED PARTNERSHIP
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Exact Name of Registrant
Illinois 0-14351
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State or other jurisdiction Commission file number
2355 Waukegan Road
Suite A200
Bannockburn, Illinois 36-3327917
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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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Chestnut Ridge Apartments, Phase I
In 1982, the Partnership acquired Chestnut Ridge Apartments, Phase I, Fort
Worth, Texas (formerly known as Cottonwood Apartments, Phase I), utilizing
approximately $3,509,000 in offering proceeds. The property was acquired
subject to first mortgage financing of $5,850,000. An affiliate of the General
Partner (the "Affiliate") purchased the first mortgage loan in 1987. In 1990,
the Partnership obtained a second mortgage loan from the Affiliate to fund
operating deficits at the property. In 1992, the first and second mortgage
loans, which had a total outstanding balance of $6,586,700, including accrued
interest, were refinanced with a new $3,053,400 first mortgage loan from a
third party and a $698,044 second mortgage loan and a $2,835,255 unsecured loan
(together, the "Affiliate Loan") from an affiliate of the General Partner. In
1994, the first mortgage loan was refinanced with a new $3,694,000 first
mortgage loan from a third party. Excess refinancing proceeds of $214,084 were
used to repay a portion of the Affiliate Loan. In addition, $1,646,000 of the
balance of the Affiliate Loan was repaid with funds borrowed from the General
Partner and the remainder was retired and replaced with a subordinate
nonrecourse loan of $1,473,215 and a preferred limited partnership interest
of $200,000, both held by an affiliate of the General Partner.
On September 6, 1996, the Partnership contracted to sell the property for a
sale price of $5,521,500 to an unaffiliated party, TGM Realty Corp. #5, a
Delaware corporation. The purchaser has deposited $150,000 into an escrow
account as earnest money. The remainder of the sale price will be payable in
cash at closing, scheduled for September 30, 1996. From the proceeds of the
sale, the Partnership will pay the outstanding balance of the first mortgage
loan which is expected to be approximately $3,629,000 at closing, a prepayment
penalty of $129,729 and $110,430 to a third party as a brokerage commission.
An affiliate of the third party providing property management services for the
property will receive a fee of $55,215 for services rendered in connection with
the sale of the property. The Partnership will receive the remaining proceeds
of approximately $1,601,000, less closing costs. Of the remaining sale
proceeds, $250,000 will be retained by the Partnership and will not be
available for use or distribution by the Partnership until 90 days after
closing. Neither the General Partner nor any affiliate will receive a
brokerage commission in connection with the sale of the property. The General
Partner will be reimbursed by the Partnership for its actual expenses incurred
in connection with the sale. The subordinate nonrecourse loan and preferred
limited partnership interest will not be repaid and will be written off.
An affiliate of the General Partner has simultaneously contracted to sell
Chestnut Ridge Apartments, Phase II, located adjacent to Phase I, to the
purchaser. In the event that the agreement of sale for Phase I or Phase II is
terminated for any reason, the agreement of sale for the other phase will also
be terminated. In addition, other affiliates of the General Partner have
recently sold or contracted to sell 9 other properties to the purchaser.
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The closing is subject to the satisfaction of numerous terms and conditions,
including the sale of Phase II. There can be no assurance that all of the
terms and conditions will be complied with and, therefore, it is possible the
sale of the property may not occur.
ITEM 5. OTHER EVENTS
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a) Marbrisa Apartments
As previously reported, the joint venture consisting of the Partnership and an
affiliate which owns Marbrisa Apartments, Hillsborough County, Florida,
contracted to sell the property on July 15, 1996 to an unaffiliated party, ERP
Operating Limited Partnership, an Illinois limited partnership, for a sale
price of $8,100,000. Pursuant to the agreement of sale, the purchaser has
deposited an additional $200,000 in earnest money for a total of $500,000. As
of August 16, 1996, the joint venture and the purchaser agreed to reduce the
sale price to $7,800,000. The closing date of the sale has also been extended
from August 30, 1996 to September 20, 1996.
c) Willow Bend Lake Apartments
As previously reported, on June 28, 1996, the Partnership contracted to sell
Willow Bend Lake Apartments, East Baton Rouge, Louisiana, to an unaffiliated
party, BH TFL, Inc., for a sale price of $14,853,000. On August 16, 1996, the
purchaser exercised its option to terminate the agreement of sale.
d) Steeplechase Apartments
As previously reported, on July 15, 1996, the Partnership contracted to sell
Steeplechase Apartments, Lexington-Fayette, Kentucky, to an unaffiliated party,
ERP Operating Limited Partnership, an Illinois limited partnership, for a sale
price of $11,500,000. On August 20, 1996, the purchaser exercised its option
to terminate the agreement of sale. Pursuant to the agreement of sale, the
earnest money previously deposited and interest accrued thereon will be
returned to the purchaser.
e) Hunter's Glen Apartments
As previously reported, on June 30, 1996, the Partnership contracted to sell
Hunter's Glen Apartments, St. Louis County, Missouri, to ERP Operating Limited
Partnership, an Illinois limited partnership, for a sale price of $9,100,000.
On August 22, 1996, the Partnership and the purchaser agreed to extend the
closing date from August 30, 1996 to September 30, 1996.
f) Country Oaks Apartments
As previously reported, on June 25, 1996, the Partnership contracted to sell
Country Oaks Apartments, Memphis, Tennessee, to SCA North Carolina Limited
Partnership, a Delaware limited partnership, for a sale price of $8,250,000.
Pursuant to letter agreements between the Partnership and the purchaser, the
closing was extended and the sale closed on September 5, 1996. SCA North
<PAGE>
Carolina Limited Partnership assigned its rights under the contract to an
affiliate, SCA-Tennessee Limited Partnership, which took title to the property
subject to the existing first mortgage loan. The loan had an outstanding
principal balance of $5,946,892 at closing. From the proceeds of the sale, the
Partnership paid $123,750 as a brokerage commission to an affiliate of the
third party providing property management services for the property and $30,686
in closing costs. The Partnership received the remaining proceeds of
approximately $2,149,000.
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 dated September 3, 1996 relating to the sale
of Chestnut Ridge Apartments, Phase I, Fort Worth, Texas.
(99) (a) (i) First Amendment to Agreement of Sale dated August 16,
1996 relating to the sale of Marbrisa Apartments,
Hillsborough County, Florida.
(ii) Letter Agreement dated August 20, 1996 relating to the
sale of Marbrisa Apartments, Hillsborough County,
Florida.
(b) Letter Agreement dated August 16, 1996 relating to the sale
of Willow Bend Lake Apartments, East Baton Rouge,
Louisiana.
(c) Notice of Disapproval dated August 20, 1996 relating to the
sale of Steeplechase Apartments, Lexington, Kentucky.
(d) Letter Agreement dated August 22, 1996 relating to the
sale of Hunter's Glen Apartments, St. Louis County,
Missouri.
(e) Letter Agreements dated August 7, 1996, August 23, 1996 and
August 27, 1996 relating to the sale of Country Oaks
Apartments, Memphis, Tennessee.
No information is required under Items 1, 3, 4, 6 and 8 and these
items have, therefore, been omitted.
<PAGE>
Signature
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Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this Report to be signed on its behalf by the
undersigned hereunto duly authorized.
BALCOR REALTY INVESTORS 85 -SERIES II
A REAL ESTATE LIMITED PARTNERSHIP
By: Balcor Partners-XVII, an Illinois
general partnership, its general partner
By: The Balcor Company, a Delaware corporation,
a partner
By: /s/ Jerry M. Ogle
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Jerry M. Ogle, Vice President
and Secretary
Dated: September 20, 1996
<PAGE>
AGREEMENT OF SALE
THIS AGREEMENT, entered into as of the 30th day of August, 1996, by and
between TGM Realty Corp. #5, a Delaware corporation ("Purchaser"), and Chestnut
Ridge I Limited Partnership, an Illinois limited partnership ("Seller").
WITNESSETH:
1. PURCHASE AND SALE. Purchaser agrees to purchase and Seller agrees to
sell at the price (the "Purchase Price") of Five Million Five Hundred
Twenty-One Thousand Five Hundred and No/100 ($5,521,500.00), all of the
following property (collectively, the "Property");
A. That certain parcel of real property commonly known as Chestnut
Ridge I Apartments, Fort Worth, Texas, more particularly described on Exhibit A
attached hereto (the "Land");
B. All equipment, furnishings and other tangible personal property
owned by Seller placed or installed on or about the Land or Improvements now or
prior to "Closing" (as such term is defined in Section 8 hereof) and used as
part of or in connection with the Land and Improvements, including, the
personal property set forth on Exhibit B but excluding any computer hardware
and software (other than computer discs containing data files) (collectively,
the "Personal Property"), which Personal Property shall be transferred to
Purchaser at Closing by a Bill of Sale in the form of Exhibit F attached
hereto;
C. All rights and appurtenances pertaining to the Land, including,
without limitation, any and all rights of Seller in and to all oil, gas and
other minerals, mineral and executive rights, air and development rights,
roads, alleys, easements, streets and ways adjacent to the Land, rights of
ingress and egress thereto, any strips and gores within or bounding the Land
and profits or rights or appurtenances pertaining to the Land;
D. The buildings and all other improvements, structures and
fixtures placed, constructed or installed on the Land (collectively, the
"Improvements");
E. All leases, licenses and other occupancy agreements
(collectively, the "Leases") covering space situate at or within the Land and
Improvements and any claim or right to claim against a tenant or occupant
(collectively, the "Tenants") under any existing Lease and all security
deposits paid or deposited by Tenants in respect of the Leases;
F. All of Seller's rights in and contractual rights and intangibles
with respect to the operation, maintenance and repair of the Land and
Improvements, including service and maintenance agreements, construction,
material and labor contracts, utility agreements and other contractual
arrangements, all to the extent designated by the provisions of this Agreement
(collectively, the "Contracts"); assignable governmental permits, licenses,
certificates and approvals in connection with the ownership of the Property
(collectively, the "Licenses") and warranties of any contractor, manufacturer
or materialman;
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G. Seller's right, if any, to the use of the trade names "Chestnut
Ridge Apartments" or "Chestnut Ridge I Apartments" (together, the "Trade Name")
in connection with the Property;
H. The right, if assignable, to the use of all telephone numbers
used by Seller at the Property; and
I. All rights to any award made or to be made or settlement in lieu
thereof for damage to the Land or Improvements by reason of condemnation,
eminent domain, exercise of police power or change of grade of any street in
accordance with the terms herein.
2. PURCHASE PRICE. The Purchase Price shall be paid as follows:
A. Within one (1) "Business Day" (as hereinafter defined) following
the Purchaser's execution of this Agreement, the sum of $150,000 (said sum,
together with all interest accrued thereon, is herein called the "Earnest
Money") payable to the "Escrow Agent" (as defined in the Escrow Agreement) to
be held in escrow 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), the balance of
the Purchase Price, adjusted in accordance with the prorations by federally
wired "immediately available" funds to the Escrow Agent's account prior to
11:00 A.M. Eastern Time.
3. TITLE COMMITMENT AND SURVEY.
A. Seller has delivered to Purchaser a title commitment ("Title
Commitment") for an owners policy of title insurance in the form promulgated by
the Texas State Board of Insurance (the "Title Policy") with deletion of any
exception for discrepancies, shortages, conflicts in boundary lines or any
encroachments, protrusions or overlapping of improvements (but with an
exception for shortages in area) (the "Discrepancy Deletion") issued by Lawyers
Title Insurance Corporation ("Title Insurer"). In addition, Seller has
delivered to Purchaser copies of all items and documents referred to in the
Title Commitment (collectively, the "Backup Documents"). The Title Policy
issued to Purchaser at Closing will be in the amount of the Purchase Price
subject only to the "Permitted Exceptions" (as hereinafter defined). On the
Closing Date, Seller shall cause the Title Insurer to issue to Purchaser the
Title Policy or a "marked up" commitment in conformity with the requirements in
this Agreement for the Title Policy. The costs of the Title Policy will be
paid pursuant to Paragraph 5 of this Agreement.
B. Seller has ordered a survey of the Property (the "Property").
Seller will deliver the Survey to Purchaser promptly following its receipt by
Seller. Prior to the Closing, Seller will have the Survey certified to
Purchaser or its designee and the Title Insurer, which certificate shall be in
a form agreed to by Purchaser and the Surveyor prior to the expiration of the
Inspection Period. All costs relating to the Survey will be paid pursuant to
Paragraph 5 of this Agreement.
<PAGE>
C. Purchaser shall have until the "Inspection Period Expiration
Date" (as hereinafter defined) to examine the condition of title and the Survey
and to approve or disapprove the same, including, without limitation,
determining whether Purchaser is satisfied with: (a) the title endorsements
which the Title Insurer will make available to Purchaser; and (b) the
certificate from the surveyor on the Survey (the "Surveyor"). If Purchaser
shall disapprove the condition of title or the Survey, such disapproval shall
be set forth in one or more notices (each, a "Disapproval Notice") given to
Seller not later than the Inspection Period Expiration Date stating that the
condition of title to the Property or of the Survey or any of the terms,
provisions or contents of the items and documents described in Paragraphs 3A
and 3B hereof are disapproved by Purchaser. If Purchaser fails to deliver a
Disapproval Notice, Purchaser shall be presumed to have accepted the condition
of title and the Survey in the condition set forth in the most recent Title
Commitment and Survey that shall have been delivered to Alan Linder on or
before the date which is three (3) Business Days before the Inspection Period
Expiration Date. Notwithstanding the foregoing, Purchaser may deliver one or
more additional Disapproval Notices after the Inspection Period Expiration
Date, if at any time after the date which is three (3) Business Days prior to
the Inspection Period Expiration Date, Alan Linder receives (i) an amendment or
revision to the Title Commitment or the Survey containing any exception or
Survey item not set forth in a previous Title Commitment or Survey, or (ii) a
Backup Document not previously delivered to Alan Linder, provided that any such
additional Disapproval Notice shall be given, if at all, within three (3)
Business Days after Alan Linder receives such amendment, revision or additional
Backup Document, as the case may be. If necessary, the Closing shall be
adjourned to provide Purchaser such three (3) Business Day period. Seller
shall have until the date which is five (5) Business Days after the date of the
Disapproval Notice (the "Title Cure Expiration Date") in which to cure,
eliminate or agree to cure or eliminate all items which Purchaser disapproves
in the Disapproval Notice, and to furnish evidence satisfactory to Purchaser
and the Title Insurer or the Surveyor, respectively, that all such items have
been cured or eliminated or that arrangements have been made with the Title
Insurer or the Surveyor, respectively, and any parties in interest to cure or
eliminate the same at or prior to the later of: (a) Closing, or (b) five (5)
Business Days following the Title Cure Expiration Date, in which case, if
necessary, the Closing Date shall be extended to the first date on which the
lender financing the Property will accept a prepayment of the loan secured by
the Property, but in no event shall the Closing Date be extended by more than
thirty (30) days therefor. If such evidence is not received by Purchaser and
the Title Insurer or the Surveyor, respectively, on or before the Title Cure
Expiration Date (all exceptions to title or Survey items set forth in any and
all Disapproval Notices are herein called "Unpermitted Exceptions", and all
exceptions to title and all Survey items that are not Unpermitted Exceptions
are herein called "Permitted Exceptions"), then Purchaser shall have the right
to elect to terminate this Agreement, by written notice delivered on or before
the earlier to occur of: (a) the date Seller delivers the aforesaid evidence
and any such agreement to cure or eliminate such disapproved items to Purchaser
and the Title Insurer or the Surveyor, as applicable; or (b) Closing (the
"Termination Notice") and, upon such election, all Earnest Money shall be
immediately refunded to Purchaser, and thereupon the parties hereto shall have
no further obligations one to the other under this Agreement. If Purchaser
fails to deliver the Termination Notice as described above, the Purchaser shall
be deemed to have accepted title and Survey subject to the Unpermitted
Exceptions.
<PAGE>
Notwithstanding anything contained herein to the contrary, if there shall
be any Unpermitted Exceptions which (i) are, or were caused by, resulted from
or arose out of (a) a default by Seller of any of its obligations under this
Agreement, including but not limited to Seller's failure to pay real estate
taxes, or (b) any debt of Seller secured by the Property including, but not
limited to the grant by Seller to any person or entity of a mortgage, deed of
trust or other security interest affecting the Property; (c) any judgments
which are a lien against the Property; (d) any materialman's or mechanic's lien
(or similar lien) recorded against the Property, then, for a period of sixty
(60) days, Seller shall take all such actions as may be necessary (including,
without limitation, the commencement of and the diligent prosecution of legal
proceedings and the payment of money) to remove such Unpermitted Exceptions, or
cause the Title Insurer to issue a title indemnity to Purchaser in form and
substance reasonably satisfactory to Purchaser, insuring against loss or
damage; or (ii) are not of the type described in clause (i) of this sentence,
but are removable by the payment of a definite or ascertainable sum not to
exceed, in the aggregate, $25,000.00 (hereinafter referred to as the "Maximum
Amount"), then Seller shall cause such Unpermitted Exceptions to be removed
from the Title Commitment and the Title Policy, or cause the Title Insurer to
issue a title indemnity to Purchaser in form and substance reasonably
satisfactory to Purchaser, insuring against loss or damage. If Seller fails to
remove any Unpermitted Exceptions in accordance with the provisions of this
paragraph or if there exists any Unpermitted Exception which Seller is not
obligated to remove pursuant to clause (ii) above because payment of funds in
excess of the Maximum Amount would be required to cure the same, Purchaser,
nevertheless, may elect (at or prior to the Closing) to consummate the
transaction provided for herein subject to any such Unpermitted Exception as
may exist as of the Closing with a credit against the Purchase Price equal to
(a) the sum necessary to remove such Unpermitted Exceptions which can be
satisfied by a liquidated amount, and (b) the reasonably estimated reduction in
the fair market value of the Property resulting from any Unpermitted Exceptions
which cannot be satisfied by the payment of a liquidated amount (not to exceed
the Maximum Amount solely for Unpermitted Exceptions of the type described in
clause (ii) above; provided, however, if Purchaser makes such election,
Purchaser shall not be entitled to any other credit, nor shall Seller bear any
further liability, with respect to any Unpermitted Exceptions of the type
described in clause (ii) above). If Purchaser shall not so elect, Purchaser
shall be deemed to have elected to terminate this Agreement, in which case, the
Earnest Money plus all accrued interest shall be delivered to Purchaser and,
subject to the survival provisions of Paragraphs 15 and 16 herein, neither
party shall have any further liability hereunder.
4. CONDITION OF TITLE/CONVEYANCE. Seller agrees to convey fee simple
title to the Property by Special Warranty Deed ("Deed") in the form of Exhibit
D attached hereto and in recordable form subject only to the Permitted
Exceptions.
<PAGE>
5. PAYMENT OF CLOSING COSTS. Purchaser and Seller shall each pay
one-half (1/2) of all costs related to the Title Commitment and the Title
Policy (including without limitation premium, title search fees, the costs of
the Discrepancy Deletion and the costs of those endorsements identified on
Exhibit E attached hereto [Purchaser shall be responsible to pay for any
additional endorsements]), the Survey (including the recertifying of the
Survey), the Title Insurer's escrow fees, transfer taxes, if any, recording
charges for the Deed, and the cost of the "UCC Search" (as hereinafter defined)
(collectively, "Closing Costs"). In addition, Seller shall pay for any
prepayment premium required to be paid to the lender having a loan secured by
the Property. Notwithstanding the aforesaid, each party hereunder shall pay
its own attorneys' fees.
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 for $200,000 or less, then
Purchaser shall accept the Property in its damaged condition together with a
credit at Closing in the amount of the damaged Property. If the Property
suffers damage as a result of any casualty prior to the Closing Date and cannot
be repaired or restored for $200,000 or less, then, at Purchaser's election to
be exercised within ten (10) days after Purchaser is notified of such casualty,
this Agreement shall be terminated.
B. If condemnation proceedings ("Proceedings") have been instituted
against the Property or any governmental authority shall take any steps
preliminary thereto (by the giving of a written notice of intent to institute
such proceedings), 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 Seller within ten (10) days after Seller notifies
Purchaser of the Proceedings.
C. If this Agreement is terminated pursuant to Paragraphs 6a or 6b
hereof, then all Earnest Money plus the interest accrued thereon shall be
returned to Purchaser and, subject to the survival provisions of Paragraphs 15
and 16 herein, neither party shall have any further liability hereunder.
7. AS-IS CONDITION.
A. Except as specifically set forth otherwise in this Agreement,
Purchaser acknowledges and agrees that it will be purchasing the Property based
solely upon its inspection and investigations of the Property and that
Purchaser will be purchasing the Property "AS IS" and "WITH ALL FAULTS" based
upon the condition of the Property as of the last day of Purchaser's inspection
of the Property, subject to reasonable wear and tear from such date 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 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
<PAGE>
condition of the Land or any Improvements, the existence or nonexistence of
asbestos, toxic waste or any hazardous material, the Tenants of the Property or
the Leases affecting the Property, economic projections or market studies
concerning the Property, any development rights, taxes, bonds, covenants,
conditions and restrictions affecting the Property, water or water rights,
topography, drainage, soil, subsoil of the Property, the utilities serving the
Property or any zoning, environmental or building laws, rules or regulations
affecting the Property. Seller makes no representation that the Property
complies with Title III of the Americans With Disabilities Act or any fire
codes or building codes. Purchaser hereby releases Seller from any and all
liability in connection with any claims which Purchaser may have against
Seller, and Purchaser hereby agrees not to assert any claims, for contribution,
cost recovery or otherwise, against Seller, relating directly or indirectly to
the existence of asbestos or hazardous materials or substances on, or
environmental conditions of, the Property, provided that nothing in this
Section 7 shall constitute a release of Seller with respect to any
representations or warranties expressly set forth in this Agreement. As used
herein, the term "Hazardous Materials" or "Hazardous Substances" means (i)
hazardous wastes, 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
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 and (E) asbestos.
B. If the Property suffers damage from a casualty prior to the
Closing Date, but is discovered by Purchaser within 90 days after the Closing
Date, then Seller shall promptly file a claim with its insurance carrier and
will assign the proceeds of that claim to Purchaser and pay Purchaser the
amount of the deductible on its policy.
C. 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
<PAGE>
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 will rely upon its own investigation and inquiry with respect to the
operation of the Property and releases Seller from any liability with respect
to such historical information.
8. CLOSING. The closing ("Closing") of this transaction shall be on
September 30, 1996 or on such other date mutually agreed upon by the parties
("Closing Date"), at which time Seller shall deliver possession of the Property
to Purchaser in accordance with this Agreement. Closing shall occur at the
offices of Purchaser's counsel. The parties acknowledge and agree the Closing
will be a "New York Style" Closing such that Seller will receive the Purchase
Price on the Closing Date upon (i) Seller's unconditional delivery of the
documents set forth in Paragraph 9(b) herein, and (ii) the Title Insurer's
delivery to Purchaser of the Title Policy or a "marked-up" commitment in
conformity with the requirements in this Agreement for the Title Policy.
9. CLOSING DOCUMENTS.
A. On the Closing Date, Purchaser shall deliver to Seller an
executed closing statement prepared by the Title Insurer and approved by
Purchaser, the Assignment and Assumption of Service Contracts in the form of
Exhibit G attached hereto, the Assignment and Assumption of Leases in the form
of Exhibit H attached hereto, the notice to the Tenants in the form of Exhibit
I attached hereto, the Post-Closing Adjustment Letter in the form of Exhibit J
attached hereto, the balance of the Purchase Price (after crediting the Earnest
Money), 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.
B. On the Closing Date, Seller shall deliver to Purchaser
possession of the Property in accordance with this Agreement; and duplicate
originals of all of the following: the Deed (in the form of Exhibit D attached
hereto) subject only to the Permitted Exceptions and those Unpermitted
Exceptions waived in writing by Purchaser, if any, which Deed shall contain the
legal description in conformity with the legal description shown on the final
Survey; an inventory of the Personal Property which shall include all Personal
Property set forth on Exhibit B and a Bill of Sale for the same (in the form of
Exhibit F attached hereto); an executed closing statement prepared by the Title
Insurer and approved by Purchaser; an executed Assignment and Assumption of
Service Contracts (in the form of Exhibit G attached hereto) together with
originals (or copies if originals are not in Seller's possession) of all
instruments evidencing the rights assigned; an executed Assignment and
Assumption of Leases (in the form of Exhibit H attached hereto) together with
originals of all Leases assigned (which Leases will be at the managing agent's
office at the Property); an updated rent roll certified by Seller to be
correct; a notice to the Tenants of the transfer of title (in the form of
<PAGE>
Exhibit I attached hereto, which notice shall be delivered to the Tenants by
Purchaser); a non-foreign affidavit (in the form of Exhibit K attached hereto);
the Post-Closing Adjustment Letter dated as of the Closing Date (in the form of
Exhibit J annexed hereto); an assignment of intangibles (in the form of Exhibit
L annexed hereto); an assignment of the Licenses (in the form of Exhibit M
annexed hereto), together with originals or copies of originals which are not
in Seller's possession, of all instruments evidencing the rights assigned; an
assignment of all existing assignable warranties and guarantees (the
"Assignment of Warranties and Guarantees") relating to the Property dated as of
the Closing Date (in the form of Exhibit N annexed hereto), together with
available originals or copies if originals are not in Seller's possession, of
all instruments evidencing the rights assigned, the Information for Real Estate
1099-S Report Filing (in the form of Exhibit O annexed hereto); an
acknowledgement of receipt of the Information for Real Estate 1099-S Report
Filing by the Title Insurer (in the form of Exhibit P attached hereto);
evidence acceptable to the Title Insurer, authorizing the consummation by
Seller of the transaction which is the subject of this Agreement and the
execution and delivery of all documents on behalf of Seller; all keys and
combinations to all locks on the Improvements which will be at the Property;
all plans, specifications, mechanical, electrical and plumbing layouts,
operating manuals, purchase orders, brochures, marketing materials and
advertisements which are owned by Seller and are located at the Property,
Tenant lease files, and other files and records in the possession of Seller at
the leasing office at the Property and Seller's managing agent (including,
without limitation, hard copy print outs of the information contained on the
computer data discs delivered to Purchaser at Closing) and utilized in
connection with the operation and maintenance of the Land and Improvements;
current tax bills and, if available, to the extent in Seller's possession, tax
bills for each of the years of Seller's ownership of the Property; a
certificate from Seller that no proceeding for the reduction of real or
personal property taxes is ongoing as of the Closing Date; affidavits and
certificates as to facts within the knowledge of Seller as required by the
Title Insurer as to the condition of title or the due performance by Seller of
its obligations under this Agreement, the Title Policy or the "marked-up"
commitment for the Title Policy in conformity with the requirements in this
Agreement; UCC searches conducted by a UCC search company reasonably acceptable
to Purchaser at the County and State level, searching Seller's name, the name
of any other entity which may have owned the Property during the past five (5)
years and the Trade Name, dated to a date not more than thirty (30) days prior
to the Closing evidencing that no portion of the Personal Property is subject
to any UCC filing (the "UCC Search") unless a UCC-3 Termination Statement for
same has been provided for at the Closing; telephone transfer form; 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.
C. Seller shall deliver to Alan Linder, not less than five (5) days
prior to the Closing Date, execution originals of all of the conveyance
documents which are to be executed by Purchaser.
<PAGE>
10. DEFAULT BY PURCHASER. ALL EARNEST MONEY DEPOSITED INTO THE ESCROW IS
TO SECURE THE TIMELY PERFORMANCE BY PURCHASER OF ITS OBLIGATIONS AND
UNDERTAKINGS UNDER THIS AGREEMENT, INCLUDING ITS OBLIGATIONS TO MAKE ALL
DEPOSITS ON OR BEFORE THE DATES PROVIDED FOR HEREIN. IN THE EVENT THE CLOSING
DOES NOT OCCUR AS A RESULT OF ANY DEFAULT OF PURCHASER UNDER THE PROVISIONS OF
THIS AGREEMENT, SELLER SHALL RETAIN ALL OF THE EARNEST MONEY AND THE INTEREST
THEREON AS LIQUIDATED DAMAGES, AND 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
INABILITY TO PERFORM ITS OBLIGATIONS UNDER THIS AGREEMENT, PURCHASER' S SOLE
REMEDY SHALL BE THE RETURN OF ALL EARNEST MONEY TOGETHER WITH ANY INTEREST
ACCRUED THEREON, PLUS ACTUAL DAMAGES NOT TO EXCEED $150,000.00, AND, SUBJECT TO
THE SURVIVAL PROVISIONS OF PARAGRAPHS 15 AND 16 HEREIN, THIS AGREEMENT SHALL
TERMINATE AND THE PARTIES SHALL HAVE NO FURTHER LIABILITY TO EACH OTHER AT LAW
OR IN EQUITY. NOTWITHSTANDING ANYTHING CONTAINED HEREIN TO THE CONTRARY, IF
SELLER'S DEFAULT IS ITS REFUSAL TO DELIVER THE DEED OR ANY OF THE OTHER
DOCUMENTS ENUMERATED IN PARAGRAPH 9(b) OF THIS AGREEMENT, THEN PURCHASER WILL
BE ENTITLED TO SUE FOR SPECIFIC PERFORMANCE.
12. PRORATIONS. The following are to be prorated or adjusted (as
appropriate), as of 11:59 P.M. on the day preceding the Closing Date (the
"Proration Date"):
A. Rents, as and when collected. If as of the Proration Date there
are rents owed by Tenants for the month in which the Closing occurs, then the
first monies received from said Tenant or Tenants shall be received on account
of or in payment of such past due rents and (i) if Purchaser receives said past
due rents, Seller's aforesaid share thereof shall be remitted by Purchaser to
Seller within three (3) Business Days, and (ii) if Seller receives such past
due rents, Purchaser's aforesaid share thereof shall be remitted by Seller to
Purchaser within three (3) Business Days. With respect to any arrears for
periods prior to the month in which the Closing occurs, Purchaser shall pay
such arrears to Seller as and when collected from the monies received from such
Tenant provided such Tenant is otherwise current in its rent. With respect to
rents for any period subsequent to the month in which the Closing occurs that
may be received by Seller, Seller shall promptly remit such rents to Purchaser.
B. Real estate and personal property taxes, if any, on the basis of
the fiscal year for which assessed and in which the Proration Date occurs. If
the Closing shall occur before the tax rate or assessment is fixed for the
fiscal year in which the Closing occurs, then the apportionment of such real
estate and personal property taxes at the Closing shall be upon the basis of an
assessed valuation of $4,716,050 and a tax rate of 101% of the 1995 tax year.
C. Water, sewer charges, electricity and gas on the basis of the
most recent bills available, but if there are meters on the Property, Seller,
to the extent the same is obtainable, shall obtain a reading effective as of
the Proration Date.
<PAGE>
D. Tax and utility company deposits, if any, and if assignable and
assigned.
E. Fuel, if any, based on a fuel company letter showing measurement
no more than two (2) days prior to Closing and valued at current prices.
F. Amounts paid or payable in respect of any Contracts assigned to
Purchaser, including, but not limited to, any up-front "bonus" payments made in
consideration of entering into any Contract, net of any commissions paid by
Seller (which up-front "bonus" payments, if any, shall be prorated based upon
the unexpired term of the Contract; provided, however, such bonus payments
shall only be prorated if actually received by Seller and only to the extent
any fee was not used to improve the applicable facilities at the Property
related to the applicable contract);
G. Purchaser shall receive a credit against the cash due at Closing
in an amount equal to all refundable Tenants security deposits and accrued
interest to which Tenants may be entitled pursuant to the Leases which are to
be assigned to Purchaser at the time of Closing.
H. If, at Closing, the Property or any part thereof shall be or
shall have been affected by an assessment or assessments which are or may
become payable in installments, then for purposes of this Agreement, all unpaid
installments of any such assessment, including those which are to become due
and payable and to be liens upon the Property shall be paid and discharged by
Purchaser. In addition, the parties agree to prorate any prepaid assessments
at Closing.
I. If such prorations result in a payment due Purchaser, then the
portion of the Purchase Price payable at Closing shall be reduced by such sum.
J. If such prorations result in a payment due Seller, then the same
shall be paid to Seller in addition to the portion of the Purchase Price
payable at Closing.
K. The parties hereto shall endeavor to prepare a schedule of
prorations no less than one (1) Business Day prior to Closing.
L. The parties hereto shall correct any arithmetic errors in
prorations as soon after the Closing as amounts are finally determined. The
parties hereto shall enter into the Post-Closing Adjustment Letter at the
Closing in the form of Exhibit J annexed hereto.
M. Except as set forth in Paragraph 12(b) hereof, 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. Except
with reference to arithmetic errors, all prorations will be final.
N. The provisions of this Paragraph 12 shall survive the Closing.
13. RECORDING. This Agreement shall not be recorded and the act of
recording by Purchaser shall be an act of default hereunder by Purchaser and
shall be subject to the provisions of Paragraph 10.
<PAGE>
14. ASSIGNMENT. Purchaser shall have the right to assign its interest in
this Agreement, provided such assignment is effected at least five (5) days
prior to the Closing Date. In the event of any such assignment, Seller agrees
to deliver any documents referred to in this Agreement to Purchaser's designee
and agrees that all surviving representations and warranties of Seller
hereunder shall be deemed to run in favor of, and be enforceable by said
designee as if it were Purchaser hereunder. Upon any assignment, Purchaser
agrees that it shall continue to be bound by all of Purchaser's indemnities
under this Agreement. The provisions of this Paragraph shall survive the
Closing.
15. BROKER. The parties hereto acknowledge that Paine Webber Real Estate
Investments, Incorporated ("Broker") is the only real estate broker involved in
this transaction. Purchaser has not paid and will not pay at any time before,
at or after the Closing, any fee, commission or compensation whatsoever to any
person whomsoever directly or indirectly on account of this Agreement, its
negotiation, or the sale hereby contemplated. Seller agrees to pay Broker a
commission or fee ("Fee") pursuant to a listing agreement between Seller and
Broker. Seller represents that 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 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 (other
than Broker) claiming by or through Purchaser, as a result of Purchaser's
actions, 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 reasonable approval of defense
counsel selected by Purchaser. Seller agrees to indemnify, defend and hold
harmless Purchaser and all shareholders, employees, officers and directors of
Purchaser or Purchaser's parent or affiliate (each of the above is individually
referred to as a "Purchaser Indemnitee") from all claims, including attorneys'
fees and costs incurred by a Purchaser Indemnitee as a result of anyone
claiming by or through Seller, as a result of Seller's actions, including but
not limited to Broker, 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 reasonable selection
of defense counsel. The provisions of this Paragraph will survive the Closing
and delivery of the Deed and any prior termination of this Agreement.
16. INSPECTION OF PROPERTY.
A. During the period (the "Inspection Period") commencing on the
date hereof and ending at 5:00 p.m. Chicago time on the later to occur of: (a)
September 20, 1996; or (b) ten (10) days following Purchaser's receipt of the
Survey (said date of expiration of the Inspection Period being referred to
herein as the "Inspection Period Expiration Date"), 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 at the Property of the
Leases and to conduct and prepare such studies, tests and surveys as Purchaser
<PAGE>
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 and insurance bills,
utility account numbers, service contracts and unaudited year end 1994 and 1995
operating statements. During the Inspection Period, Seller will reasonably
cooperate with Purchaser in its inspection of the Property including, but not
limited to, furnishing (or making available) to Purchaser such information,
materials and documents which Purchaser may reasonably request and which are in
Seller's possession.
B. Except as set forth in Section 5 hereof, all of the foregoing
tests, investigations and studies to be conducted under this Paragraph 16 by
Purchaser shall be at Purchaser's sole cost and expense, and Purchaser shall
restore the Property substantially 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 to the extent caused by Purchaser's
investigations and inspection of the Property. Purchaser shall undertake its
obligation to defend set forth in the preceding sentence using attorneys
selected by Purchaser and reasonably acceptable to Seller.
C. If Purchaser is dissatisfied with the results of the tests,
studies or investigations performed or information received pursuant to this
Paragraph 16, in Purchaser's sole judgment for any reason or for no reason,
Purchaser shall have the right to terminate this Agreement by giving written
notice of such termination to Seller at any time prior to the expiration of the
Inspection Period. If written notice is not given by Purchaser pursuant to
this Paragraph 16 prior to the expiration of the Inspection Period, then the
right of Purchaser to terminate this Agreement pursuant to this Paragraph 16
shall be waived. If Purchaser terminates this Agreement by written notice to
Seller prior to the expiration of the Inspection Period: (i) Purchaser shall
promptly deliver to Seller copies of all studies, reports and other
investigations obtained by Purchaser and prepared by third parties (to the
extent that such delivery shall not constitute a breach of contract) in
connection with its due diligence during the Inspection Period; (ii) the
Earnest Money deposited by Purchaser shall be immediately paid to Purchaser,
together with any interest earned thereon and (iii) this Agreement shall
terminate and neither Purchaser nor Seller shall have any right, obligation or
liability under this Agreement, except for Purchaser's obligation to indemnify
Seller and restore the Property, as more fully set forth in this Paragraph 16.
Notwithstanding anything contained herein to the contrary, Purchaser's
obligation to indemnify Seller and restore the Property, as more fully set
forth in this Paragraph 16, shall survive the Closing, the delivery of the Deed
and the termination of this Agreement.
<PAGE>
17. SELLER'S REPRESENTATIONS AND WARRANTIES AND LIABILITY.
A. Any reference herein to Seller's knowledge or to the best of
Seller's knowledge or to any representation, warranty or notice of any matter
or thing, shall only mean such knowledge or notice that has actually been
received by Phillip Schechter, and any representation or warranty of the Seller
is based upon those matters of which Phillip Schechter has actual knowledge,
provided that the representations and warranties made in (vi) and (vii) of
Paragraph 17B hereof are not so limited to Phillip Schechter's knowledge except
where specifically noted in subsection (vii) of Paragraph 17B. 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 Paragraph 17a above,
Seller hereby makes the following representations and warranties, all of which
are made to the best of Seller's knowledge, each of which shall be deemed
remade as of the Closing and survive the Closing and delivery of the Deed for
ninety (90) days except for subparagraphs (vi) and (vii) which shall survive
for the statutory period:
(i) The present use and occupancy of the Property conform with
applicable building and zoning laws and Seller has received no notice that any
such laws, rules or regulations are being violated.
(ii) The rent rolls which Seller has submitted to Purchaser and
updated as of the Closing Date are true and accurate.
(iii) Except as set forth on Exhibit Q, Seller has no knowledge
of any pending or threatened litigation, claim, cause of action or
administrative proceeding concerning the Property.
(iv) There are no real estate tax protests or proceedings
affecting the Property.
(v) Seller has received no written notice of any pending or
threatened condemnation or similar proceeding or pending public improvements in
or adjoining the Land which will in any manner affect the Property.
(vi) Each person executing and delivering this Agreement and all
documents to be executed and delivered in regard to the consummation of the
transaction which is the subject of this Agreement on behalf of Seller
represents to Purchaser that he has due and proper authority to execute and
deliver same. Seller has the full right, power and authority to sell and
convey the Property to Purchaser as provided herein and to carry out its
obligations hereunder. The consummation by Seller of the transaction which is
the subject of this Agreement will not conflict with or result in a breach of
any of the terms of any agreement or instrument to which Seller is a party or
by which Seller is bound or constitute a default thereunder. No other party
has any right to purchase the Property, or any part thereof.
<PAGE>
(vii) Neither Seller nor any of Seller's general partners is the
subject of any existing or pending or to the actual knowledge of Phillip
Schechter threatened or contemplated bankruptcy, solvency or other debtor's
relief proceeding.
(viii) Seller does not have any employees at the Property.
C. As a condition precedent to Purchaser's obligations at Closing
and regardless of the provisions of Paragraph 17A hereof, all representations
and warranties provided in this Agreement to be made by Seller as of the
Closing shall be true as of the Closing (whether or not Phillip Schechter has
actual knowledge that the representation or warranty is not true).
18. 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 transaction 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. This provision shall not preclude Purchaser from
instituting and maintaining any legal action against Seller; provided, however,
notwithstanding the foregoing to the contrary, the maximum liability of Seller
hereunder is $250,000. Seller shall not distribute $250,000 of the net
proceeds of the Purchase Price to its partners until ninety (90) days after the
Closing Date.
19. TIME OF ESSENCE. Time is of the essence of this Agreement.
20. 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 signed by the party giving the same or by its attorneys 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
Bannockburn Lake Office Plaza
2355 Waukegan Road
Suite A200
Bannockburn, Illinois 60015
Attn: Ilona Adams
847/267-1600
847/317-4462 (FAX)
with copies to: The Balcor Company
Bannockburn Lake Office Plaza
2355 Waukegan Road
Suite A200
Bannockburn, Illinois 60015
Attn: Al Lieberman
847/317-4360
847/317-4462 (FAX)
<PAGE>
and
Andrew D. Small Esq.
Katten Muchin & Zavis
Suite 1600
525 West Monroe Street
Chicago, Illinois 60661
312/902-5489
312/902-1061 (FAX)
TO PURCHASER: Mr. Thomas Gochberg
c/o TGM Associates L.P.
650 Fifth Avenue
28th Floor
New York, New York 10019
212/830-9300
212/399-6310 (FAX)
with a copy to: Alan E. Linder, Esq.
Bachner, Tally, Polevoy & Misher LLP
380 Madison Avenue
New York, New York 10017-2590
212/503-2090
212/682-5729 (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 or on the 4th Business Day after the
same is deposited in the United States Mail as registered or certified mail,
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.
21. EXECUTION OF AGREEMENT AND ESCROW AGREEMENT. Purchaser will execute
three (3) counterparts of this Agreement and three (3) counterparts of the
Escrow Agreement and forward them to Seller for Seller's execution. Seller
will forward one (1) fully executed counterpart of the executed Agreement to
Purchaser's attorneys 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) counterparts of the Escrow Agreement and
deliver a fully executed counterpart to Purchaser's attorneys and Seller.
Purchaser shall deliver the Earnest Money to Escrow Agent on the same day
that Purchaser executes the Escrow Agreement. If Purchaser's attorney has not
received one fully executed counterpart of this Agreement and the Escrow
Agreement within four (4) Business Days after Purchaser delivers the Earnest
Money to Escrow Agent, then at Purchaser's election, the Earnest Money and the
executed counterparts of this Agreement shall be returned to Purchaser.
<PAGE>
22. GOVERNING LAW. The provisions of this Agreement shall be governed by
the laws of the State of Texas.
23. ENTIRE AGREEMENT. This Agreement and the attached Exhibits
constitute the entire agreement between the parties with respect to the subject
matter hereof and supersedes all other negotiations, understandings and
representations made by and between the parties and the agents, servants and
employees.
24. 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.
25. CAPTIONS. Paragraph or Exhibit 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.
26. MODIFICATIONS. This Agreement cannot be changed, modified,
discharged or terminated by any oral agreement or any other agreement and there
cannot be any waiver of the warranties, representations and covenants expressly
contained in this Agreement unless the same is in writing and signed by the
party against whom enforcement of the change, modification, discharge,
termination or waiver is sought.
27. SUCCESSORS AND ASSIGNS. This Agreement shall be binding on, and the
benefits hereof shall inure to, the successors and assigns of the parties
hereto.
28. INVALIDITY. If any term or provision of this Agreement, or any part
of such term or provision, or the application thereof to any person or
circumstance shall to any extent be held invalid or unenforceable, the
remainder of this Agreement or the application of such term or provision or
remainder thereof to persons or circumstances other than those as to which it
is held invalid and unenforceable shall not be affected thereby and each term
and provision of this Agreement shall be valid and enforceable to the fullest
extent permitted by law.
29. EXHIBITS. All Exhibits which are annexed to this Agreement are part
of this Agreement and are incorporated herein by reference.
30. NO THIRD PARTY BENEFICIARY. The provisions of this Agreement are for
the sole benefit of the parties to this Agreement and their successors and
assigns and shall not give rise to any rights by or on behalf of anyone other
than such parties.
31. ATTORNEYS' FEES. In the event that any litigation arises under this
Agreement, the prevailing party shall be entitled to recover, as a part of its
judgment, reasonable attorneys' fees.
<PAGE>
32. CORRECTION DEED. Seller will, whenever reasonably requested so to do
by Purchaser, execute, acknowledge and deliver, or cause to be executed,
acknowledged and delivered, a correction deed as may be reasonably necessary in
order to complete the transaction which is the subject of this Agreement and to
carry out the intent and purposes of this Agreement. Such correction deed
shall be satisfactory to the attorneys for Purchaser. The provisions of this
Paragraph shall survive the Closing.
33. BUSINESS DAYS. If the date for performance of any act pursuant to
the Agreement is not a Business Day, then such act shall be performed on the
next succeeding Business Day. The term "Business Days" shall mean all days,
except Saturdays, Sundays and all days observed by the Federal Government as
legal holidays.
34. OPERATIONS PRIOR TO CLOSING. Seller agrees that between the date
hereof and the Closing Date, Seller will:
A. continue to operate the Property as heretofore operated;
B. afford Purchaser and its representatives full access to the
Property and to Seller's books, records and files relating to and maintained at
the Property, at reasonable times, upon forty-eight (48) hours prior notice and
during normal business hours, including but not limited to the date of the
Closing;
C. not enter into any new Lease, nor amend, modify or terminate
any existing Lease without having obtained the prior written consent of
Purchaser in each such instance; notwithstanding the foregoing, Seller may
enter into Leases of not more than one year upon market rents and upon
commercially reasonable terms;
D. not apply any Tenant's security deposits to the discharge of
such Tenant's obligations unless such Tenant has vacated or been evicted from
such Tenant's demised premises;
E. advise Purchaser promptly of any litigation or governmental
proceeding to which Seller becomes a party affecting the Property (it shall be
a condition precedent to Purchaser's obligation to accept title, that there
shall be no such litigation or proceeding pending at Closing having a potential
adverse effect upon the Property or Seller's ability to convey the Property to
Purchaser);
F. not permit any alteration, structural modification or additions
to the Property;
G. not create (or agree to create) any exception to or covenant,
restriction, easement or other lien on the Property;
H. not enter into any new Contract, nor amend, modify or terminate
any existing Contract; and
I. not grant or transfer any mineral or executive leases or
rights.
<PAGE>
35. CONSIDERATION. On or before the execution of this Agreement,
Purchaser shall deliver to Seller One Hundred And No/100 Dollars ($100.00) cash
(the "Independent Contract Consideration"), which amount has been bargained for
and agreed to as consideration for Purchaser's right to purchase the Property
pursuant to this Agreement including, without limitation, Purchaser's rights
under Paragraphs 3 and 16 and for Seller's execution and delivery of this
Agreement. The Independent Contract Consideration is in addition to and
independent of all other consideration provided in this Agreement, and is
nonrefundable in all events.
36. WAIVER OF DECEPTIVE TRADE PRACTICES-CONSUMER PROTECTION ACT.
Purchaser waives its rights under the Deceptive Trade Practices-Consumer
Protection Act, Section 17.41 et seq., Business & Commerce Code, a law that
gives consumers special rights and protections. After consultation with an
attorney/legal counsel of Purchaser's own selection, Purchaser voluntarily
consents to this waiver. Purchaser covenants, represents and warrants that
such attorney/legal counsel was not directly or indirectly identified,
suggested, or selected by Seller or an agent of Seller.
37. CONDITION PRECEDENT. It is a condition precedent to Seller's and
Purchaser's obligations to close the transaction which is the subject of this
Agreement that 8951 Randol Limited Partnership, an Illinois limited partnership
(the "Other Property Seller") simultaneously therewith convey and Purchaser or
its designee acquire that certain property commonly known as Chestnut Ridge II
Apartments (the "Other Property") in accordance with the terms of the Agreement
of Sale (the "Other Property Contract") between the Other Property Seller and
Purchaser of even date herewith for the sale of the Other Property to
Purchaser. The purchase and sale of the Property and the purchase and sale of
the Other Property shall occur, if at all, simultaneously. Without limitation
to the generality of the foregoing sentence, any extension, delay or
adjournment of or in the closing under the Other Property Contract shall also
cause and constitute a matching extension, delay or adjournment of or in the
Closing under this Agreement.
If the Other Property Seller has the right to, and does, retain the
earnest money under Paragraph 10 of the Other Property Contract because the
closing thereunder has not occurred as the result of a default by Purchaser
thereunder, then Seller shall also have the right to retain the Earnest Money
under Paragraph 10 of this Agreement as if the Closing did not occur hereunder
as the result of a default by Purchaser hereunder.
A termination of the Other Property Contract pursuant to the provisions
thereof or applicable law shall also cause and constitute a termination of this
Agreement under the same provisions or law.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date set forth above.
Executed by Purchaser on PURCHASER:
September 3, 1996.
TGM REALTY CORP. #5, a Delaware corporation
By: /s/ Thomas Gochberg
------------------------------------
Name: Thomas Gochberg
------------------------------------
Title: President
------------------------------------
Executed by Seller on SELLER:
September 6, 1996.
Chestnut Ridge I Limited Partnership, an Illinois
limited partnership
By: Chestnut Ridge of Illinois, Inc., an
Illinois corporation, its general partner
By: /s/ John K. Powell, Jr
-------------------------------------
Name: John K. Powell, Jr.
-------------------------------------
Title: S.V.P.
-------------------------------------
<PAGE>
___________________ of Paine Webber Real Estate Investments, Incorporated
("Broker"), executes this Broker Joinder Agreement in connection with Chestnut
Ridge I Apartments, Fort Worth, Texas, in its capacity as a real estate broker
and acknowledges that the fee or commission ("Fee") due 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. Such Fee and any other amounts
due Broker shall be paid solely by Seller, and Purchaser shall have no
liability whatsoever to Broker under any circumstances, whether or not the
Closing occurs. Broker also acknowledges that payment of the aforesaid Fee is
conditioned upon the Closing and the receipt of the Purchase Price by Seller.
Broker agrees to deliver a receipt to Seller at the Closing for the Fee and a
release stating that no other fees or commissions are due to Listing Broker
from Seller or Purchaser. A copy of broker's receipt and release will be
delivered to Purchaser at the Closing.
PAINE WEBBER REAL ESTATE INVESTMENTS,
INCORPORATED
By:
--------------------------------------
Tax I.D. Number
----------------------------
<PAGE>
EXHIBITS
A - Legal
B - Personal Property
C - Escrow Agreement
D - Deed
E - Endorsements
F - Bill of Sale
G - Assignment of Service Contracts
H - Assignment of Leases and Security Deposits
I - Notice to Tenants
J - Post-Closing Adjustment Letter
K - Non-Foreign Affidavit
L - Assignment of Intangibles
M - Assignment of Licenses and/or Permits
N - Assignment of Warranties and Guarantees
O - Information for Real Estate 1099-S Report Filing
P - Acknowledgment of Title Insurer with regard to Real Estate 1099-S
Report Filing
Q - Litigation
<PAGE>
FIRST AMENDMENT TO
AGREEMENT OF SALE
THIS FIRST AMENDMENT TO AGREEMENT OF SALE (this "Amendment"), is made as
of this 16th day of August, 1996, by and between 4949 MARBRISA LIMITED
PARTNERSHIP, an Illinois limited partnership ("Seller") and ERP OPERATING
LIMITED PARTNERSHIP, an Illinois limited partnership ("Purchaser"). All
initially capitalized terms used herein which are not otherwise defined herein
shall have the meanings ascribed to them in the Agreement (as such term is
defined below).
RECITALS
A. Seller and Purchaser have entered into that certain Agreement of Sale
dated July 16, 1996 (as amended, the "Agreement") for the purchase and sale of
certain real property (the "Property") commonly known as "Marbrisa Apartments"
and located in Tampa, Florida all as more particulary described in the
Agreement.
B. Purchaser and Seller desire to further amend the Agreement for the
purpose of amending the Purchase Price, all in accordance with the terms of
this Amendment.
NOW, THEREFORE, for valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, Seller and Purchaser agree as follows:
1. Amendment of Purchase Price. The Purchase Price referenced under
Paragraph 1 of the Agreement is hereby amended to read Seven Million Eight
Hundred Thousand and No/100 Dollars ($7,800,000.00).
2. Reaffirmation. Except as expressly amended and modified under this
Amendment, the terms and provisions of the Agreement are hereby ratified and
affirmed in their entirety.
3. Governing Law. This Amendment shall be governed by and construed in
accordance with the laws of the State of Florida.
4. Counterparts. This Amendment may be signed in any number of
counterparts each of which shall be deemed to be an original and all of which
taken together shall constitute one and the same instrument.
<PAGE>
In witness whereof, the parties have executed and delivered this Amendment
as of the date first written above.
SELLER:
4949 MARBRISA LIMITED PARTNERSHIP,
an Illinois limited partnership
By: 4949 Marbrisa Inc., an Illinois corporation,
its general partner
By: /s/ James E. Mendelson
----------------------------------
Its: James E. Mendelson
Authorized Representative
PURCHASER:
ERP OPERATING LIMITED PARTNERSHIP,
an Illinois limited partnership
By: Equity Residential Properties Trust,
a Maryland real estate investment trust,
its general partner
By: Equity Residential Properties Trust,
a Maryland real estate investment
trust, its general partner
By: /s/ Linda Mennick
------------------------------------
Its:
------------------------------------
<PAGE>
August 20, 1996
VIA FACSIMILE MAIL
4949 Marbrisa Limited
Partnership The Balcor Company Daniel J. Perlman, Esq.
c/o The Balcor Company 2355 Waukegan Road Katten Muchin & Zavis
2355 Waukegan Road Suite A200 Suite 2100
Suite A200 Bannockburn, IL 60015 525 W. Monroe Street
Bannockburn, IL 60015 Attn.: Al Lieberman Chicago, IL 60661
Attn.: Ilona Adams
Re: Agreement of Sale, dated as of the 16th day of July, 1996
(the "Agreement") between 4949 Marbrisa Limited Partnership,
as Seller, and ERP Operating Limited Partnership, as Purchaser, for
the purchase of Marbrisa Apartments, Tampa, Florida (the
"Property").
Dear Ms. Adams and Messrs. Lieberman and Perlman:
Purchaser hereby requests that the Closing Date, as such term is defined
in Section 9 of the Agreement, be changed from August 30, 1996 to September 19,
1996. Please acknowledge Seller's acceptance of this modification to the
Agreement by executing this letter in the space provided below and returning it
via facsimile mail to Purchaser.
Furthermore, this letter shall serve as the Extension Notice as such term
is defined in the letter agreement, dated July 16, 1996, between Seller and
Purchaser.
ERP OPERATING LIMITED PARTNERSHIP,
an Illinois limited partnership
By: Equity Residential Properties Trust,
a Maryland Real Estate Investment
Trust, its general partner
By: /s/ Shelley L. Dunck
------------------------------------
Shelley L. Dunck
Vice President
Approved and Accepted this 21 day of August, 1996
4949 MARBRISA LIMITED PARTNERSHIP, an Illinois
limited partnership
By: 4949 Marbrisa of Illinois, Inc., an Illinois corporation
By: /s/ Jerry M. Ogle
----------------------------------
Name: Jerry M. Ogle
----------------------------------
Title: Vice President and Secretary
----------------------------------
<PAGE>
August 16, 1996
Mr. Al Liberman
The Balcor Company
Bannockburn Lake Office Plaza
2355 Waukegan Road, Suite A200
Bannockburn, IL 60015
Re: Forest Wood Apartments
Sherwood Apartments
Summit Ridge Apartments
Walnut Ridge Apartments
Willow Bend Lake Apartments
Wood Bridge Apartments
Dear Al:
This letter is confirm that the contracts for the above properties are
terminated and will not be reinstated until which time the non-refundable
earnest money can be wired and we are otherwise in agreement on all terms.
Very truly yours,
/s/ Harry Bookey
Harry Bookey
By:
--------------------------------
For Sellers
<PAGE>
NOTICE OF DISAPPROVAL
August 20, 1996
VIA FACSIMILE AND
CERTIFIED MAIL
Steeplechase Partners L.P. The Balcor Company Daniel J. Perlman, Esq.
c/o The Balcor Company 2355 Waukegan Road Katten Muchin & Zavis
2355 Waukegan Road Suite A200 Suite 2100
Suite A200 Bannockburn, IL 60015 525 W. Monroe Street
Bannockburn, IL 60015 Attn: Alan G. Lieberman Chicago, IL 60661
Attn: Ilona Adams
Re: Agreement of Sale, dated as of the 15th day of July, 1996
(the "Agreement") between Steeplechase Partners Limited Partnership,
as Seller, and ERP Operating Limited Partnership, as Purchaser, for
the purchase of Steeplechase Apartments, Lexington, Kentucky
(the "Property").
Dear Ms. Adams and Messrs. Lieberman and Perlman:
Pursuant to Section 16(C) of the Agreement, we hereby give you notice that
we disapprove the Documents and the condition of the Property and as the
Property is unsuitable for our purposes, we are hereby terminating the
Agreement and all rights and obligations of the Seller and Purchaser
thereunder. By execution of this Notice of Disapproval, we are hereby
authorizing and directing Charter Title Company, as Escrow Agent, to disburse
the Earnest Money, plus all accrued interest, to us via the attached wire
instructions.
ERP OPERATING LIMITED PARTNERSHIP,
an Illinois limited partnership
By: Equity Residential Properties Trust,
a Maryland Real Estate Investment
Trust, its general partner
By: /s/ Shelley L. Dunck
------------------------------------
Shelley L. Dunck
Vice President
<PAGE>
August 22, 1996
VIA FACSIMILE MAIL
Hunters Partners The Balcor Company Daniel J. Perlman, Esq.
Limited Partnership 2355 Waukegan Road Katten Muchin & Zavis
c/o The Balcor Company Suite A200 Suite 2100
2355 Waukegan Road Bannockburn, IL 60015 525 W. Monroe Street
Suite A200 Chicago, IL 60661
Bannockburn, IL 60015 Attn.: Al Lieberman
Attn.: Ilona Adams
Re: Agreement of Sale, dated as of the 25th day of June, 1996
(the "Agreement") between Hunters Partners Limited Partnership,
as Seller, and ERP Operating Limited Partnership, as Purchaser, for
the purchase of Hunter's Glen Apartments, Chesterfield, Missouri
(the "Property").
Dear Ms. Adams and Messrs. Lieberman and Perlman:
Purchaser hereby requests an extension of the Approval Period, as such
term is defined in Section 16(A) of the Agreement, from August 23, 1996 until
5:00 CDT on September 23, 1996. Purchaser further requests that the Closing
Date, as such term is defined in Section 8 of the Agreement, be changed from
August 30, 1996 to September 30, 1996. Please acknowledge Seller's acceptance
of these modifications to the Agreement by executing this letter in the space
provided below and returning it via facsimile mail to Purchaser.
ERP OPERATING LIMITED PARTNERSHIP,
an Illinois limited partnership
By: Equity Residential Properties Trust,
a Maryland Real Estate Investment
Trust, its general partner
By: /s/ Shelley L. Dunck
------------------------------------
Shelley L. Dunck
Vice President
<PAGE>
Approved and Accepted this ____ day of August, 1996
HUNTERS PARTNERS LIMITED PARTNERSHIP, an Illinois
limited partnership
By: Hunters Partners, Inc., an Illinois corporation,
its general partner
By: /s/ Jerry M. Ogle
----------------------------------
Name: Jerry M. Ogle
----------------------------------
Title: Vice President and Secretary
----------------------------------
<PAGE>
August 7, 1996
6555 Country Oaks Circle Limited Partnership
c/o The Balcor Company
Bannockburn Lake Office Plaza
2355 Waukegan Road
Suite A-200
Bannockburn, Illinois 60015
Attention: Ilona Adams
Re: Country Oaks, Memphis, Tennessee
Dear Ms. Adams:
Reference is hereby made to that certain Agreement of Sale dated as of
June 25, 1996, between 6555 Country Oaks Circle Limited Partnership, an
Illinois limited partnership ("Seller"), and SCA North Carolina Limited
Partnership, a Delaware limited partnership ("Purchaser"), as amended by that
certain Letter Agreement dated as of June 25, 1996, between Seller and
Purchaser, and as further amended by that certain Letter Agreement dated as of
July 8, 1996, between Seller and Purchaser, (as amended, the "Agreement"). All
capitalized terms which are used herein but which are not otherwise defined
herein shall have the meanings ascribed to such terms in the Agreement.
Seller and Purchaser agree that the date for the satisfaction of the
Conditions Precedent is extended until August 23, 1996, and the Closing Date is
extended to the date which is five (5) business days after either party
receives notice from the other party of the satisfaction of the Conditions
Precedent, but in no event later than August 29, 1996.
In the event of an inconsistency between the terms of this letter and the
terms of the Agreement, the terms of this letter shall govern and control.
Please acknowledge your agreement to the foregoing by executing a copy of
this letter and returning it to the undersigned.
Sincerely,
SCA NORTH CAROLINA
LIMITED PARTNERSHIP
By: SCA-North Carolina (1) Incorporated, a
Maryland corporation, general partner
By: /s/ Raymond D. Barrows
-----------------------------------
Name: Raymond D. Barrows
-----------------------------------
Title: Vice President
-----------------------------------
<PAGE>
ACCEPTED AND AGREED TO as of
August 7, 1996
6555 COUNTRY OAKS CIRCLE
LIMITED PARTNERSHIP
By: Balcor Partners 85II, Inc., an
Illinois corporation, general partner
By: /s/ James E. Mendelson
-----------------------------------
Name: James E. Mendelson
-----------------------------------
Title: Authorized Representative
-----------------------------------
<PAGE>
August 23, 1996
6555 Country Oaks Circle Limited Partnership
c/o The Balcor Company
Bannockburn Lake Office Plaza
2355 Waukegan Road
Suite A-200
Bannockburn, Illinois 60015
Attention: Ilona Adams
Re: Country Oaks, Memphis, Tennessee
Dear Ms. Adams:
Reference is hereby made to that certain Agreement of Sale dated as of
June 25, 1996, between 6555 Country Oaks Circle Limited Partnership, an
Illinois limited partnership ("Seller"), and SCA North Carolina Limited
Partnership, a Delaware limited partnership ("Purchaser"), as amended by that
certain Letter Agreement dated as of June 25, 1996, between Seller and
Purchaser, and as further amended by that certain Letter Agreement dated as of
July 8, 1996, between Seller and Purchaser, and as further amended by that
certain Letter Agreement dated as of August 7, 1996, between Seller and
Purchaser, (as amended, the "Agreement"). All capitalized terms which are used
herein but which are not otherwise defined herein shall have the meanings
ascribed to such terms in the Agreement.
Seller and Purchaser agree that the date for the satisfaction of the
Conditions Precedent is extended until August 27, 1996, and the Closing Date is
extended to August 29, 1996.
In the event of an inconsistency between the terms of this letter and the
terms of the Agreement, the terms of this letter shall govern and control.
Please acknowledge your agreement to the foregoing by executing a copy of
this letter and returning it to the undersigned.
Sincerely,
SCA NORTH CAROLINA
LIMITED PARTNERSHIP
By: SCA-North Carolina (1) Incorporated, a
Maryland corporation, general partner
By: /s/ Raymond D. Barrows
-------------------------------------
Name: Raymond D. Barrows
-------------------------------------
Title: Vice President
-------------------------------------
<PAGE>
ACCEPTED AND AGREED TO as of
August 23, 1996
6555 COUNTRY OAKS CIRCLE
LIMITED PARTNERSHIP
By: Balcor Partners 85II, Inc., an
Illinois corporation, general partner
By: /s/ Jerry M. Ogle
----------------------------------
Name: Jerry M. Ogle
----------------------------------
Title: Vice President and Secretary
----------------------------------
<PAGE>
August 27, 1996
6555 Country Oaks Circle Limited Partnership
c/o The Balcor Company
Bannockburn Lake Office Plaza
2355 Waukegan Road
Suite A-200
Bannockburn, Illinois 60015
Attention: Ilona Adams
Re: Country Oaks, Memphis, Tennessee
Dear Ms. Adams:
Reference is hereby made to that certain Agreement of Sale dated as of
June 25, 1996, between 6555 Country Oaks Circle Limited Partnership, an
Illinois limited partnership ("Seller"), and SCA North Carolina Limited
Partnership, a Delaware limited partnership ("Purchaser"), as amended by those
certain Letter Agreements dated as of June 25, 1996, July 8, 1996, August 7,
1996, and August 23, 1996 (as amended, the "Agreement"). All capitalized terms
which are used herein but which are not otherwise defined herein shall have the
meanings ascribed to such terms in the Agreement.
Seller and Purchaser agree that the Closing Date is extended to September
5, 1996.
In the event of an inconsistency between the terms of this letter and the
terms of the Agreement, the terms of this letter shall govern and control.
Please acknowledge your agreement to the foregoing by executing a copy of
this letter and returning it to the undersigned.
Sincerely,
SCA NORTH CAROLINA
LIMITED PARTNERSHIP
By: SCA-North Carolina (1) Incorporated, a
Maryland corporation, general partner
By: /s/ Raymond D. Barrows
------------------------------------
Name: Raymond D. Barrows
------------------------------------
Title: Vice President
------------------------------------
<PAGE>
ACCEPTED AND AGREED TO as of
August 27, 1996
6555 COUNTRY OAKS CIRCLE
LIMITED PARTNERSHIP
By: Balcor Partners 85II, Inc., an
Illinois corporation, general partner
By: /s/ James E. Mendelson
--------------------------------
Name: James E. Mendelson
--------------------------------
Title: Authorized Rep.
--------------------------------
<PAGE>
