SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-Q
(Mark One)
X QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
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EXCHANGE ACT OF 1934.
For the quarterly period ended March 31, 1997
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OR
TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
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EXCHANGE ACT OF 1934.
For the transition period from to
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Commission file number 0-14348
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BALCOR EQUITY PENSION INVESTORS-III
A REAL ESTATE LIMITED PARTNERSHIP
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(Exact name of registrant as specified in its charter)
Illinois 36-3354308
- ------------------------------- -------------------
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
2355 Waukegan Road
Bannockburn, Illinois 60015
- ---------------------------------------- -------------------
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code (847) 267-1600
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Indicate by check mark whether the Registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
Registrant was required to file such reports), and (2) has been subject to such
filing requirements for the past 90 days.
Yes X No
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<PAGE>
BALCOR EQUITY PENSION INVESTORS - III
A REAL ESTATE LIMITED PARTNERSHIP
(An Illinois Limited Partnership)
BALANCE SHEETS
March 31, 1997 and December 31, 1996
(Unaudited)
ASSETS
1997 1996
-------------- --------------
Cash and cash equivalents $ 15,799,761 $ 35,523,271
Accounts and accrued interest receivable 1,088,234 1,202,372
Prepaid expenses, principally real
estate taxes and insurance 273,869 469,833
Deferred expenses, net of accumulated
amortization of $371,348 in 1997 and
$384,914 in 1996 84,863 131,377
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17,246,727 37,326,853
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Investment in real estate:
Land 4,996,045 7,925,685
Buildings and improvements 47,543,526 49,748,165
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52,539,571 57,673,850
Less accumulated depreciation 25,622,005 25,600,858
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Investment in real estate, net of
accumulated depreciation 26,917,566 32,072,992
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Investment in joint ventures with
affiliates 1,891,266 2,072,443
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$ 46,055,559 $ 71,472,288
============== ==============
LIABILITIES AND PARTNERS' CAPITAL
Accounts payable $ 263,030 $ 389,388
Due to affiliates 120,439 119,215
Accrued liabilities 337,450 106,625
Security deposits 148,686 175,080
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Total liabilities 869,605 790,308
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<PAGE>
BALCOR EQUITY PENSION INVESTORS - III
A REAL ESTATE LIMITED PARTNERSHIP
(An Illinois Limited Partnership)
BALANCE SHEETS
March 31, 1997 and December 31, 1996
(Unaudited)
Commitments and contingencies
Limited Partners' capital (683,204
Interests issued and outstanding) 45,962,876 71,279,934
General Partner's deficit (776,922) (597,954)
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Total partners' capital 45,185,954 70,681,980
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$ 46,055,559 $ 71,472,288
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The accompanying notes are an integral part of the financial statements.
<PAGE>
BALCOR EQUITY PENSION INVESTORS - III
A REAL ESTATE LIMITED PARTNERSHIP
(An Illinois Limited Partnership)
STATEMENTS OF INCOME AND EXPENSES
for the quarters ended March 31, 1997 and 1996
(Unaudited)
1997 1996
-------------- --------------
Income:
Rental $ 1,780,110 $ 3,306,814
Service 607,000 546,788
Participation in income of joint
ventures with affiliates 496,138
Interest on short-term investments 208,098 144,575
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Total income 2,595,208 4,494,315
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Expenses:
Depreciation 447,188 746,163
Amortization of deferred expenses 46,514 18,265
Property operating 1,028,265 1,323,492
Real estate taxes 282,607 406,811
Property management fees 106,088 176,359
Administrative 221,901 130,591
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Total expenses 2,132,563 2,801,681
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Income before gain on sale of
property 462,645 1,692,634
Gain on sale of property 770,345
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Net income $ 1,232,990 $ 1,692,634
============== ==============
Net income allocated to General Partner $ 98,401 $ 250,391
============== ==============
Net income allocated to Limited Partners $ 1,134,589 $ 1,442,243
============== ==============
Net income per Limited Partnership Interest
(683,204 issued and outstanding) $ 1.66 $ 2.11
============== ==============
Distribution to General Partner $ 277,369 $ 173,708
============== ==============
Distribution to Limited Partners $ 26,451,647 $ 1,563,370
============== ==============
Distribution per Limited Partnership
Interest:
Taxable $ 2.80 $ 1.75
============== ==============
Tax-Exempt $ 41.50 $ 2.33
============== ==============
The accompanying notes are an integral part of the financial statements.
<PAGE>
BALCOR EQUITY PENSION INVESTORS - III
A REAL ESTATE LIMITED PARTNERSHIP
(An Illinois Limited Partnership)
STATEMENTS OF CASH FLOWS
for the quarters ended March 31, 1997 and 1996
(Unaudited)
1997 1996
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Operating activities:
Net income $ 1,232,990 $ 1,692,634
Adjustments to reconcile net income to
net cash provided by operating
activities:
Gain on sale of property (770,345)
Participation in income of joint
ventures with affiliates (496,138)
Depreciation of properties 447,188 746,163
Amortization of deferred expenses 46,514 18,265
Net change in:
Accounts and accrued interest
receivable 114,138 401,124
Prepaid expenses 195,964 227,691
Accounts payable (126,358) (76,331)
Due to affiliates 1,224 18,519
Accrued liabilities 230,825 106,067
Security deposits (26,394) (4,758)
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Net cash provided by operating activities 1,345,746 2,633,236
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Investing activities:
Proceeds from sale of property 5,768,000
Payment of selling costs (289,417)
Capital contribution to joint venture
with affiliate (39,705)
Distributions from joint ventures with
affiliates 220,882 411,097
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Net cash provided by investing
activities 5,659,760 411,097
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Financing activities:
Distribution to Limited Partners (26,451,647) (1,563,370)
Distribution to General Partner (277,369) (173,708)
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Cash used in financing activities (26,729,016) (1,737,078)
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Net change in cash and cash equivalents (19,723,510) 1,307,255
Cash and cash equivalents at beginning
of period 35,523,271 11,280,395
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Cash and cash equivalents at end of period $ 15,799,761 $ 12,587,650
============== ==============
The accompanying notes are an integral part of the financial statements.
<PAGE>
BALCOR EQUITY PENSION INVESTORS-III
A REAL ESTATE LIMITED PARTNERSHIP
(An Illinois Limited Partnership)
NOTES TO FINANCIAL STATEMENTS
1. Accounting Policy:
In the opinion of management, all adjustments necessary for a fair presentation
have been made to the accompanying statements for the quarter ended March 31,
1997, and all such adjustments are of a normal and recurring nature.
2. Partnership Termination:
The Partnership Agreement provides for the dissolution of the Partnership upon
the occurrence of certain events, including the disposition of all interests in
real estate. During 1996, the Partnership sold two properties and the three
properties in which the Partnership held minority joint venture interests. The
majority of the proceeds from the sales of these properties were distributed to
Tax-Exempt Limited Partners in October 1996 and January 1997. During February
1997, the Partnership sold the Ammendale Technology Park - Phase II office
buildings. The available proceeds from the sale of this property were
distributed to Tax-Exempt Limited Partners in April 1997. The Partnership has
entered into a contract to sell the Bingham Farms Office Plaza - Phase IV. The
Partnership is actively marketing for sale the remaining three properties in
its portfolio. The timing of the termination of the Partnership and final
distribution of cash will depend upon the nature and extent of liabilities and
contingencies which exist or may arise. Such contingencies may include legal
and other fees stemming from litigation involving the Partnership including,
but not limited to, the lawsuits discussed in Note 5 of Notes to Financial
Statements. In the absence of any contingency, the reserves will be paid within
twelve months of the last property being sold. In the event a contingency
exists or arises, reserves may be held by the Partnership for a longer period
of time.
3. Transactions with Affiliates:
Fees and expenses paid and payable by the Partnership to affiliates during the
quarter ended March 31, 1997 are:
Paid Payable
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Reimbursement of expenses to
the General Partner, at cost $ 39,990 $ 120,439
4. Property Sale:
In February 1997, the Partnership sold the Ammendale Technology Park - Phase II
office building in an all cash sale for $5,768,000. From the proceeds of the
sale, the Partnership paid $289,417 in selling costs. The basis of the property
was $4,708,238 which is net of accumulated depreciation of $426,041. For
financial statement purposes, the Partnership recognized a gain of $770,345
from the sale of the property.
<PAGE>
5. Contingencies:
(a) The Partnership is currently involved in a lawsuit whereby the Partnership,
the General Partner and certain third parties have been named as defendants
seeking damages relating to tender offers to purchase interests in the
Partnership and nine affiliated partnerships initiated by the third party
defendants in 1996. The defendants continue to vigorously contest this action.
The action has been dismissed with prejudice and plaintiffs have filed an
appeal. It is not determinable at this time whether or not an unfavorable
decision in this action would have a material adverse impact on the financial
position, operations, and liquidity of the Partnership. The Partnership
believes it has meritorious defenses to contest the claims.
(b) The Partnership is currently involved in a lawsuit whereby the Partnership
and certain affiliates have been named as defendants alleging certain federal
securities law violations with regard to the adequacy and accuracy of
disclosures of information concerning, as well as the marketing efforts related
to, the offering of the Limited Partnership Interests of the Partnership. The
defendants continue to vigorously contest this action. A plaintiff class has
not yet been certified, and no determination of the merits have been made. It
is not determinable at this time whether or not an unfavorable decision in this
action would have a material adverse impact on the financial position,
operations, and liquidity of the Partnership. The Partnership believes it has
meritorious defenses to contest the claims.
6. Subsequent Event:
In April 1997, the Partnership paid $11,832,749 ($2.60 per Taxable Interest and
$18.46 per Tax-Exempt Interest) to Limited Partners representing the regular
quarterly distribution of available Net Cash Receipts of $2.60 per Taxable
Interest and $3.46 per Tax-exempt Interest for the first quarter of 1997, and a
special distribution of $15.00 per Tax-exempt Interest from Net Cash Proceeds
available from the sale of the Ammendale Technology Park - Phase II office
buildings and from the remaining available proceeds from the 1996 property
sales.
<PAGE>
BALCOR EQUITY PENSION INVESTORS-III
A REAL ESTATE LIMITED PARTNERSHIP
(An Illinois Limited Partnership)
MANAGEMENT'S DISCUSSION AND ANALYSIS
Balcor Equity Pension Investors-III A Real Estate Limited Partnership (the
"Partnership") is a limited partnership formed in 1985 to make first mortgage
loans and to invest in and operate income-producing real property. The
Partnership raised $170,801,000 through the sale of Limited Partnership
Interests. The Partnership funded four first mortgage loans, two of which were
jointly funded with affiliates, and acquired five real property investments and
a minority joint venture interest with an affiliate in another real property
investment. All four properties collateralized by the Partnership's mortgage
loans were acquired through foreclosure, including the loans funded jointly
with affiliates, which were reclassified to investment in joint ventures with
affiliates. During 1996, the Partnership sold two properties and the three
properties in which the Partnership held a minority joint venture interest.
During February 1997, the Partnership sold one additional property. As of March
31, 1997, the Partnership is operating its remaining four properties.
Inasmuch as the management's discussion and analysis below relates primarily to
the time period since the end of the last fiscal year, investors are encouraged
to review the financial statements and the management's discussion and analysis
contained in the annual report for 1996 for a more complete understanding of
the Partnership's financial position.
Operations
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Summary of Operations
- ---------------------
During 1996, the Partnership sold the Green Trails and Westlake Meadows
apartment complexes and the three properties in which the Partnership held a
minority joint venture interest, all of which were generating income. In
February 1997, the Partnership sold the Ammendale Technology Park - Phase II
office buildings. As a result of these sales, net income decreased during the
quarter ended March 31, 1997, as compared to the same period in 1996. This
decrease was partially offset by a gain recognized on the sale of the Ammendale
Technology Park - Phase II office buildings in 1997. Further discussion of the
Partnership's operations is summarized below.
1997 Compared to 1996
- ---------------------
Unless otherwise noted, discussions of fluctuations between 1997 and 1996 refer
to the quarters ended March 31, 1997 and 1996.
The Partnership sold the Westlake Meadows and Green Trails apartment complexes
during 1996. In addition, the Partnership sold the Ammendale Technology Park -
Phase II office buildings in February 1997. As a result, rental income,
depreciation, real estate taxes, and property management fees decreased during
1997 when compared to 1996.
<PAGE>
Increased operating expense reimbursements at the Arborland Consumer Mall and
the Erindale Centre shopping center of approximately $108,000 caused service
income to increase in 1997 when compared to 1996. This increase was partially
offset by a decrease of approximately $51,000 due to the property sales.
The Partnership participated in the income generated by the operations of the
1275 K Street, Westech 360 and Perimeter 400 office buildings, in which it held
joint venture interests, prior to their sales in 1996. As a result of these
sales, the Partnership's participation in income of joint ventures with
affiliates ceased during 1996.
Higher average cash balances due to the investment of the proceeds received
from the sale of the Ammendale Technology Park - Phase II office buildings
resulted in an increase in interest income on short-term investments during
1997 as compared to 1996.
In connection with the sale of the Ammendale Technology Park - Phase II office
buildings, the Partnership wrote-off the remaining deferred leasing commissions
on the property. As a result, amortization of deferred expenses increased
during 1997 as compared to 1996.
Property operating expense decreased approximately $323,000 during 1997 as
compared to 1996 primarily due to the sales of the Westlake Meadows and Green
Trails apartment complexes. In addition, leasing costs decreased at the
Erindale Centre shopping center by approximately $51,000 in 1997. These
decreases were partially offset by an increase in leasing costs at the
Ammendale Technology Park - Phase II office buildings of approximately $100,000
prior to its sale in 1997.
The Partnership incurred higher printing and postage costs in connection with
its response to two tender offers during 1997. As a result, administrative
expenses increased during 1997 as compared to 1996.
The Partnership sold the Ammendale Technology Park - Phase II office buildings
in February 1997, and recognized a gain of $770,345 on the property sale. See
Note 4 of Notes to Financial Statements for additional information.
Liquidity and Capital Resources
- -------------------------------
The cash position of the Partnership decreased by approximately $19,724,000 as
of March 31, 1997 as compared to December 31, 1996 primarily due to a special
distribution of Net Cash Proceeds to Tax-exempt Limited Partners in January
1997 from proceeds received in connection with the 1996 sales of the three
properties in which the Partnership held minority joint venture interests.
This decrease was partially offset by the proceeds received in connection with
the February 1997 sale of the Ammendale Technology Park - Phase II office
buildings. The Partnership generated cash flow of approximately $1,346,000
from operating activities which represents the operations of the Partnership's
properties and interest income on short-term investments, which were partially
offset by the payment of administrative expenses. Investing activities
<PAGE>
consisted of net proceeds received from the sale of the Ammendale Technology
Park - Phase II office buildings of approximately $5,479,000, and net
distributions received from joint ventures with affiliates of approximately
$181,000. Financing activities consisted of distributions to the Partners of
approximately $26,729,000. In April 1997, the Partnership made a special Net
Cash Proceeds distribution to Tax-Exempt Limited Partners of approximately
$9,511,000.
The Partnership classifies the cash flow performance of its properties as
either positive, a marginal deficit or a significant deficit. A deficit is
considered to be significant if it exceeds $250,000 annually or 20% of the
property's rental and service income. The Partnership defines cash flow
generated from its properties as an amount equal to the property's revenue
receipts less property related expenditures. During 1997 and 1996, all the
Partnership's remaining properties as of March 31, 1997 generated positive
cash flow. The Ammendale Technology Park - Phase II office buildings generated
positive cash flow during 1997 prior to its sale and during 1996; however,
significant leasing costs were incurred at this property in 1997. These costs
were not included in classifying the cash flow performance of the property
because they are non-recurring expenditures. Had these non-recurring
expenditures been included, the property would have generated a marginal cash
flow deficit in 1997, prior to its sale. The two properties sold in 1996 and
the three properties in which the Partnership held minority joint venture
interests, which were also sold in 1996, all generated positive cash flow prior
to their sales. As of March 31, 1997, the occupancy rate of the Belmont
Apartments was 95% and the occupancy rates of the Erindale Centre shopping
center, Bingham Farms Office Plaza - Phase IV and the Arborland Consumer Mall
were 93%, 94% and 76%, respectively.
The Partnership sold two properties and the three properties in which the
Partnership held minority joint venture interests in 1996, and the Partnership
sold one additional property in February 1997. The Partnership has entered
into a contract to sell the Bingham Farms Office Plaza - Phase IV for
$13,800,000. The Partnership is actively marketing for sale the remaining
three properties in its portfolio. The timing of the termination of the
Partnership and final distribution of cash will depend upon the nature and
extent of liabilities and contingencies which exist or may arise. Such
contingencies may include legal and other fees stemming from litigation
involving the Partnership including, but not limited to, the lawsuits discussed
in Note 5 of Notes to Financial Statements. In the absence of any contingency,
the reserves will be paid within twelve months of the last property being sold.
In the event a contingency exists, reserves may be held by the Partnership for
a longer period of time.
In February 1997, the Partnership sold the Ammendale Technology Park - Phase II
office buildings in an all cash sale for $5,768,000. From the proceeds of the
sale, the Partnership paid $289,417 in selling costs. Pursuant to the terms of
the sale, $170,904 of the proceeds will be held in escrow until November 1997.
In accordance with the Partnership Agreement, the Partnership distributed the
remaining available proceeds to the Tax-Exempt Limited Partners in April 1997.
<PAGE>
In April 1997, the Partnership made a distribution of $11,832,749 ($2.60 per
Taxable Interest and $18.46 per Tax-Exempt Interest) to the holders of Limited
Partnership Interests for the first quarter of 1997. This distribution includes
a regular quarterly distribution of $2.60 per Taxable Interest and $3.46 per
Tax-Exempt Interest, and a special distribution of $15.00 per Tax-Exempt
Interest from Net Cash Proceeds available from the sale of the Ammendale
Technology Park - Phase II office buildings and from the remaining available
proceeds from the 1996 property sales. In accordance with the Partnership
Agreement, Net Cash Proceeds are allocated first to the Tax-exempt Limited
Partners. The level of the regular quarterly distribution was lower than the
amount distributed for the fourth quarter of 1996 due to the 1996 property
sales. Including the April 1997 distribution, Limited Partners have received
Net Cash Receipts distributions of $103.20 per $250 Taxable Interest and
$137.32 per Tax-Exempt Interest, and Net Cash Proceeds of $109.28 per $250
Tax-Exempt Interest. In April 1997, the Partnership also paid $194,288 to the
General Partner as its distributive share of Net Cash Receipts distributed for
the first quarter of 1997 and made a contribution to the Repurchase Fund of
$64,763. Future regular quarterly distributions will be contingent upon cash
flow generated from property operations from the remaining properties.
Available Net Cash Proceeds will be distributed to Tax-Exempt Limited Partners
as future sales occur. In light of results to date, the General Partner does
not anticipate that Taxable Limited Partners will recover all of their original
investment. However, Taxable Limited Partners will share in amounts allocated
to the Repurchase Fund.
In February 1997, the Partnership discontinued the repurchase of Interests from
Limited Partners.
Changing interest rates can impact real estate values in several ways.
Generally, declining interest rates may lower the cost of capital allowing
buyers to pay more for a property whereas rising interest rates may increase
the cost of capital and lower the price of real estate.
Inflation has several types of potentially conflicting impacts on real estate
investments. Short-term inflation can increase real estate operating costs
which may or may not be recovered through increased rents and/or sales prices,
depending on general or local economic conditions. In the long-term, inflation
can be expected to increase operating costs and replacement costs and may lead
to increased rental revenues and real estate values.
<PAGE>
BALCOR EQUITY PENSION INVESTORS-III
A REAL ESTATE LIMITED PARTNERSHIP
(An Illinois Limited Partnership)
PART II - OTHER INFORMATION
Item 5. Other Information
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Arborland Consumer Mall
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As previously reported, on March 18, 1997, the Partnership contracted to sell
the Arborland Consumer Mall, Ann Arbor, Michigan, to an unaffiliated party,
Crosstown Asset Corp. I, a Delaware corporation, for a sale price of
$7,750,000. On April 7, 1997, the purchaser exercised its option to terminate
the agreement of sale. Subsequently, on April 15, 1997, the Partnership and
the purchaser reinstated the agreement. On May 1, 1997, the purchaser again
exercised its option to terminate the agreement of sale. Pursuant to the
agreement, the earnest money previously deposited by the purchaser and interest
accrued thereon has been returned to the purchaser.
Erindale Centre
- ---------------
As previously reported, on March 18, 1997, the Partnership contracted to sell
the Erindale Centre, Colorado Springs, Colorado, to an unaffiliated party,
Crosstown Asset Corp. I, a Delaware corporation, for a sale price of
$7,600,000. On April 7, 1997, the purchaser exercised its option to terminate
the agreement of sale. Pursuant to the agreement, the earnest money previously
deposited by the purchaser and interest accrued thereon has been returned to
the purchaser.
Bingham Farms Office Plaza - Phase IV
- ------------------------------------
In 1986, the Partnership acquired the Bingham Farms Office Plaza - Phase IV,
Bingham Farms, Michigan, utilizing approximately $18,181,000 of offering
proceeds.
On May 2, 1997, the Partnership contracted to sell the property for a sale
price of $13,800,000 to an unaffiliated party, Bingham Partners, L.P., a
Delaware limited partnership (the "Purchaser"). The Purchaser is an affiliate
of Insignia Management Group, L.P. ("Insignia") which is providing property
management services for the property. The Partnership commenced marketing the
property for sale in January 1997. As a result of its marketing efforts,
including sending information books to over 50 prospective purchasers, the
Partnership received five bids from qualified unaffiliated parties to purchase
the property, including that of the Purchaser. The Purchaser's bid was the
highest of those received by the Partnership and, subsequently, the Partnership
and the Purchaser negotiated the agreement of sale.
<PAGE>
The purchaser has deposited $160,465 into an escrow account as earnest money.
The remaining portion of the sale price will be payable in cash at closing,
which is scheduled to occur on July 7, 1997. From the proceeds of the sale, the
Partnership will pay $276,000 as a brokerage commission to another affiliate of
the Purchaser. The Purchaser will not pay any of its affiliates a commission
pursuant to its purchase of the property. The Partnership will receive the
remaining proceeds of approximately $13,524,000, less 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 Partnership for actual expenses incurred in connection with
the sale.
An affiliate of the Partnership has simultaneously contracted to sell an
adjacent phase of the property to the Purchaser.
The closing is subject to the satisfaction of numerous terms and conditions.
There can be no assurance that all of the terms and conditions will be complied
with and, therefore, it is possible the sale of the property may not occur.
Item 6. Exhibits and Reports on Form 8-K
- -----------------------------------------
(a) Exhibits:
(4) Form of Subscription Agreement set forth as Exhibit 4.1 to Amendment No. 3
to the Registrant's Registration Statement on Form S-11 dated September 25,
1985 (Registration Statement No. 2-97579) and Form of Confirmation regarding
Interests in the Registrant set forth as Exhibit 4.2 to the Registrant's Report
on Form 10-Q for the quarter ended June 30, 1992 (Commission File No. 0-14348)
are incorporated herein by reference.
(10) Material Contracts:
(a) Agreement of Sale and attachment thereto relating to the sale of the Green
Trails Apartment, Lisle, Illinois previously filed as Exhibit (2) to the
Registrant's Report on Form 8-K dated June 28, 1996 is incorporated herein by
reference.
(b) Agreement of Sale and attachment thereto relating to the sale of the 1275
K Street Office Building, Washington, D.C., previously filed as Exhibit (2) to
the Registrant's Report on Form 8-K dated November 29, 1996 is incorporated
herein by reference.
(c)(i) Agreement of Sale and attachment thereto relating to the sale of the
Arborland Consumer Mall, Ann Arbor, Michigan previously filed as Exhibit
(10)(c) to the Registrant's Report on Form 10-K dated December 31, 1996 is
incorporated herein by reference.
(c)(ii) Due Diligence Termination Notice dated April 7, 1997 relating to the
sale of the Arborland Consumer Mall, Ann Arbor, Michigan, is attached hereto.
(c)(iii) Ratification and Amendment of Agreement of Sale relating to the sale
of the Arborland Consumer Mall, Ann Arbor, Michigan, is attached hereto.
<PAGE>
(c)(iv) Second Amendment to Agreement of Sale and Escrow Agreement relating to
the sale of the Arborland Consumer Mall, Ann Arbor, Michigan, is attached
hereto.
(c)(v) Due Diligence Termination Notice dated May 1, 1997 relating to the sale
of the Arborland Consumer Mall, Ann Arbor, Michigan, is attached hereto.
(d) Agreement of Sale and attachment thereto relating to the sale of Bingham
Farms Office Plaza - Phase IV, Bingham Farms, Michigan, is attached hereto.
(27) Financial Data Schedule of the Registrant for the three month period
ending March 31, 1997 is attached hereto.
(99) Additional Exhibits:
Due Diligence Termination Notice relating to the sale of the Erindale Centre,
Colorado Springs, Colorado, is attached hereto.
(b) Reports on Form 8-K: No Reports on Form 8-K were filed during the quarter
ended March 31, 1997.
<PAGE>
SIGNATURES
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, thereunto duly authorized.
BALCOR EQUITY PENSION INVESTORS-III
A REAL ESTATE LIMITED PARTNERSHIP
By: /s/ Thomas E. Meador
---------------------------------
Thomas E. Meador
President and Chief Executive Officer (Principal
Executive Officer) of Balcor Equity Partners -
III, the General Partner
By: /s/ Jayne A. Kosik
-----------------------------------
Jayne A. Kosik
Managing Director and Chief Financial Officer
(Principal Accounting Officer) of Balcor Equity
Partners - III, the General Partner
Date: May 15, 1997
-----------------
<PAGE>
April 7, 1997
Arborland Associates Limited Partnership ("Seller")
c/o The Balcor Company
Bannockburn Lake Office Plaza
2355 Waukegan Road
Suite A-200
Bannockburn, Illinois 60015
Attention: Ilona Adams
Near North National Title Corporation ("Escrow Agent")
222 North LaSalle Street
First Floor
Chicago, Illinois 60601
Attention: Lou Cohen
Re: Purchase Agreement dated March 18, 1997 (the "Purchase Agreement")
between Seller and Crosstown Asset Corp. I ("Purchaser") for
Arborland Consumer Mall, Ann Arbor, MI
Ladies and Gentlemen:
Purchaser hereby terminates the Purchase Agreement pursuant to Section 7.1
thereof. Attached is the required Due Diligence Termination Notice. Escrow
Agent is hereby directed to return the earnest money together with all interest
accrued thereon to Purchaser in accordance with the attached wiring
instructions.
Sincerely,
CROSSTOWN ASSET CORP. I, a Delaware corporation
By: /s/ Timothy Scott Clark
----------------------------------
Name: Timothy Scott Clark
----------------------------------
Its: Asst. Vice President
----------------------------------
cc: The Balcor Company
Bannockburn Lake Office Plaza
2355 Waukegan Road
Suite A-200
Bannockburn, Illinois 60015
Attention: James Mendelson
Katten Muchin & Zavis
525 West Monroe Street
Suite 1600
Chicago, Illinois 60661-3693
Attention: Daniel J. Perlman, Esq.
<PAGE>
DUE DILIGENCE TERMINATION NOTICE
April 7, 1997
Crosstown Asset Corp. I, a Delaware corporation, as Purchaser under that
certain Agreement of Sale dated March 18, 1997, providing for the sale of
property located in Ann Arbor, Michigan, and known as Arborland Consumer Mall
has terminated the Agreement of Sale pursuant to Paragraph 7.1 thereof.
The undersigned demands return of all earnest money deposited under the
Agreement of Sale pursuant to its right therein.
CROSSTOWN ASSET CORP. I, a Delaware corporation
By: /s/ Timothy Scott Clark
--------------------------------
Name: Timothy Scott Clark
--------------------------------
Its: Asst. Vice President
--------------------------------
<PAGE>
RATIFICATION AND AMENDMENT OF AGREEMENT OF SALE
THIS RATIFICATION AND AMENDMENT OF AGREEMENT OF SALE (this "Amendment"),
is entered into as of the 15th day of April, 1997, by and between CROSSTOWN
ASSET CORP. I, a Delaware corporation ("Purchaser"), and ARBORLAND ASSOCIATES
LIMITED PARTNERSHIP, a Michigan limited partnership ("Seller").
RECITALS
A. Purchaser and Seller entered into that certain Agreement of Sale dated
March 18, 1997 (the "Agreement") pursuant to which Purchaser agreed to purchase
and Seller agreed to sell the property commonly known as Arborland Consumer
Mall, Ann Arbor, Michigan and more particularly described in the Agreement (as
defined in the Agreement, the "Property").
B. Purchaser subsequently terminated the Agreement by providing Seller
with the notice required under the Agreement.
C. Purchaser now desires to purchase and Seller now desires to sell the
Property on the same terms and conditions set forth in the Agreement, except as
amended by this Amendment.
NOW THEREFORE, Purchaser and Seller hereby agree as follows:
1. Ratification of Agreement. Purchaser agrees to purchase and Seller
agrees to sell the Property on the terms and conditions set forth in the
Agreement, except as expressly modified by this Amendment. Purchaser hereby
directs Escrow Agent to hold the Deposit (as defined in Section 2.1 of the
Agreement) in accordance with the provisions of the Escrow Agreement (as
defined in Section 2.1 of the Agreement).
2. Inspection Period. The Inspection Period (as defined in Section 7.1
of the Agreement) is hereby extended and will end at 5:00 p.m. Chicago time on
April 30, 1997.
3. Closing Date. The Closing Date (as defined in Section 8 of the
Agreement) is hereby changed to Friday, May 30, 1997.
4. Environmental Testing. Purchaser has requested that additional Phase
II environmental testing (the "Phase II Testing") of the Property be done.
Purchaser and Seller agree to jointly review the proposal from the
environmental consultant selected by Purchaser and reasonably acceptable to
Seller to determine the scope and cost of the Phase II Testing. As soon as
reasonably practical following Purchaser's and Seller's approval of the scope
and cost of the Phase II Testing, Purchaser shall engage the environmental
consultant to perform the approved Phase II Testing. If Purchaser does not
purchase the Property pursuant to the Agreement, Seller agrees to pay the cost
of the approved Phase II Testing (or reimburse Purchaser, within two business
days following a termination of the Agreement, in the event Purchaser has
already paid such costs). Any changes to the scope or cost of the Phase II
Testing must be approved by both Purchaser and Seller in writing. Upon
completion of the Phase II Testing, both Purchaser and Seller shall be provided
with copies of any report or data issued by the environmental consultant.
<PAGE>
5. Agreement in Full Force and Effect. Except as set forth in this
Amendment, the terms, covenants, conditions and agreements of the Agreement
shall remain unmodified and otherwise in full force and effect. In the event
of any inconsistency between the terms of the Agreement and the terms of this
Amendment, the terms of this Amendment shall control. The term, _Agreement_
shall now mean the Agreement as modified by this Amendment.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed and delivered as of the date first set forth above.
PURCHASER:
CROSSTOWN ASSET CORP. I, a Delaware corporation
By: /s/ Jeffrey A. Parker
--------------------------------
Name: Jeffrey A. Parker
--------------------------------
Its: Vice President
--------------------------------
SELLER:
ARBORLAND ASSOCIATES LIMITED PARTNERSHIP,
an Illinois limited partnership
By: Balcor Equity Pension Investors-III,
a Real Estate Limited Partnership,
a co-general partner
By: Balcor Equity Partners-III, an
Illinois general partnership
By: The Balcor Company,
a Delaware corporation
By: /s/ John K. Powell, Jr.
---------------------------------
Name: John K. Powell, Jr.
---------------------------------
Its: Senior Vice President
---------------------------------
<PAGE>
JOINDER
The undersigned executes this joinder solely for the purposes of
effectuating its obligations arising under Paragraph 28 of the Agreement.
THE BALCOR COMPANY, a Delaware corporation
By: /s/ John K. Powell, Jr.
----------------------------
Name: John K. Powell, Jr.
----------------------------
Its: Senior Vice President
----------------------------
ACKNOWLEDGMENT BY ESCROW AGENT
Escrow Agent hereby acknowledges that Escrow Agent is holding the Earnest
Money (as defined in Section 2.1 of the Agreement) pursuant to the terms of the
Escrow Agreement (as defined in the Section 2.1 of the Agreement).
ESCROW AGENT:
NEAR NORTH NATIONAL TITLE CORPORATION,
as agent for First American Title
Insurance Company
By: /s/ Mike Bench
-------------------------------
Its: Authorized Representative
<PAGE>
SECOND AMENDMENT TO
AGREEMENT OF SALE AND ESCROW AGREEMENT
THIS SECOND AMENDMENT TO AGREEMENT OF SALE AND ESCROW AGREEMENT (this
"Second Amendment") is made and entered into as of this 30th day of April,
1997, by and among ARBORLAND ASSOCIATES LIMITED PARTNERSHIP, a Michigan limited
partnership ("Seller"), CROSSTOWN ASSET CORP. I, a Delaware corporation
("Purchaser"), and NEAR NORTH TITLE CORPORATION ("Escrow Agent").
RECITALS:
A. Seller and Purchaser are parties to that certain Amendment of Sale,
dated March 18, 1997, as amended by that certain Ratification and Amendment of
Agreement of Sale dated April 15, 1997 (together, the "Agreement"), pursuant to
which Purchaser has agreed to purchase and Seller has agreed to sell certain
Property (as defined in the Agreement) legally described and depicted on
Exhibit A attached to the Agreement.
B. Seller, Purchaser and Escrow Agent are parties to that certain Escrow
Agreement, dated March 18, 1997, as amended by that certain First Amendment to
Escrow Agreement dated April 18, 1997 (together, the "Escrow Agreement"),
pursuant to which Purchaser has deposited funds in escrow to be held by Escrow
Agent in accordance with the terms of the Escrow Agreement.
C. Seller and Purchaser desire to amend the Agreement and the Escrow
Agreement in accordance with the terms of this Second Amendment.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual covenants and agreements
hereinafter set forth and other good and valuable consideration, the receipt
and sufficiency of which is hereby acknowledged, the parties hereby agree as
follows:
1. Defined Terms. All terms not otherwise defined herein shall have the
meanings ascribed to each in the Agreement.
2. Inspection Period. The Inspection Period (as defined and described in
Section 7.1 of the Agreement) is hereby extended and will end at 5:00 p.m.
Chicago time on May 1, 1997.
3. Closing Date. The Closing Date (as defined in Section 8 of the Agreement
is hereby changed to Monday, June 2, 1997.
4. Escrow Agreement Dates. Paragraph 2 of the Escrow Agreement is hereby
amended by deleting each instance of "April 30, 1997" and inserting in its
place "May 1, 1997".
Paragraph 3 of the Escrow Agreement is hereby amended by deleting "May 30,
1997" and inserting in its place "June 2, 1997".
5. Inconsistency; Agreement in Full Force and Effect. In the event of any
inconsistency between this Second Amendment and the Escrow Agreement and/or the
Agreement, the terms of this Second Amendment shall control. Except as amended
hereby, the Agreement and the Escrow Agreement shall be and remained unchanged
and in full force and effect in accordance with their respective terms.
<PAGE>
6. Multiple Counterparts. This Second Amendment may be executed in
counterparts each of which shall be deemed an original, but all of which, when
taken together shall constitute one and the same instrument. To facilitate the
execution of this Second Amendment, Seller, Purchaser and Escrow Agent may
execute and exchange by telephone facsimile counterparts of the signature
pages, with each facsimile being deemed an "original" for all purposes. The
terms "Agreement" shall now mean the Agreement as modified by this Second
Amendment. The term "Escrow Agreement" shall now mean the Escrow Agreement as
modified by this Second Amendment.
IN WITNESS WHEREOF, the parties have executed and delivered this Second
Amendment as of the date first set forth above.
PURCHASER:
CROSSTOWN ASSET CORP. I, a Delaware corporation
By: /s/ Thomas F. Haller, Jr.
-------------------------------
Name: Thomas F. Haller, Jr.
-------------------------------
Its: Vice President
-------------------------------
SELLER:
ARBORLAND ASSOCIATES LIMITED PARTNERSHIP,
a Michigan limited partnership
By: Balcor Equity Pension Investors-III, a Real
Estate Limited Partnership, a co-general
partner
By: Balcor Equity Partners-III, an Illinois
general partnership, its general partner
By: The Balcor Company, a Delaware
corporation, its general partner
By: /s/ Jerry M. Ogle
------------------------------
Name: Jerry M. Ogle
------------------------------
Its:
------------------------------
ESCROW AGENT:
NEAR NORTH NATIONAL TITLE CORPORATION
By:
----------------------------
Name:
----------------------------
Its: Authorized Agent
<PAGE>
May 1, 1997
Arborland Associates Limited Partnership ("Seller")
c/o The Balcor Company
Bannockburn Lake Office Plaza
2355 Waukegan Road
Suite A-200
Bannockburn, Illinois 60015
Attention: Ilona Adams
Near North National Title Corporation ("Escrow Agent")
222 North LaSalle Street
First Floor
Chicago, Illinois 60601
Attention: Lou Cohen
Re: Purchase Agreement dated March 18, 1997, as amended, (the "Purchase
Agreement") between Seller and Crosstown Asset Corp. I ("Purchaser")
for Arborland Consumer Mall, Ann Arbor, MI
Ladies and Gentlemen:
Purchaser hereby terminates the Purchase Agreement pursuant to Section 7.1
thereof. Attached is the required Due Diligence Termination Notice. Escrow
Agent is hereby directed to return the earnest money together with all interest
accrued thereon to Purchaser in accordance with the attached wiring
instructions.
Sincerely,
CROSSTOWN ASSET CORP. I, a Delaware corporation
By: /s/ Thomas Haller
-----------------------------------
Name: Thomas Haller
-----------------------------------
Its: Vice President
-----------------------------------
cc: The Balcor Company
Bannockburn Lake Office Plaza
2355 Waukegan Road
Suite A-200
Bannockburn, Illinois 60015
Attention: James Mendelson
Katten Muchin & Zavis
525 West Monroe Street
Suite 1600
Chicago, Illinois 60661-3693
Attention: Daniel J. Perlman, Esq.
<PAGE>
DUE DILIGENCE TERMINATION NOTICE
May 1, 1997
Crosstown Asset Corp. I, a Delaware corporation, as Purchaser under that
certain Agreement of Sale dated March 18, 1997, as amended, providing for the
sale of property located in Ann Arbor, Michigan, and known as Arborland
Consumer Mall has terminated the Agreement of Sale pursuant to Paragraph 7.1
thereof.
The undersigned demands return of all earnest money deposited under the
Agreement of Sale pursuant to its right therein.
CROSSTOWN ASSET CORP. I, a Delaware corporation
By: /s/ Thomas Haller
--------------------------------
Name: Thomas Haller
--------------------------------
Its: Vice President
--------------------------------
<PAGE>
AGREEMENT OF SALE
THIS AGREEMENT OF SALE (this "Agreement"), is entered into as of the 2nd
day of May, 1997, by and between BINGHAM PARTNERS, L.P., a Delaware limited
partnership ("Purchaser"), and LABROC III LIMITED PARTNERSHIP, an Illinois
limited partnership ("Seller").
W I T N E S S E T H:
For and in consideration of the mutual covenants contained herein and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, Purchaser and Seller hereby agree as follows:
1. PURCHASE AND SALE. Purchaser agrees to purchase and Seller agrees to sell
at the price of Thirteen Million Eight Hundred Thousand and No/100 Dollars
($13,800,000.00) (the "Purchase Price").
(a) the land in Bingham Farms, Oakland County, Michigan, which is
described on Exhibit A attached hereto (the "Land"), together with all rights,
benefits, privileges, easements, tenements, hereditaments, remainders,
reversions, and appurtenances pertaining or belonging to the Land and/or the
Improvements (hereinafter defined), including without limitation any and all
right, title, and interest of Seller in and to adjacent roads, alleys,
easements, streets and ways;
(b) all buildings and other improvements located on the Land,
including, without limitation, the building commonly known as "Stone Tower
Office Building", and all fixtures (other than those owned by tenants) and
other items of real estate attached thereto (collectively, the "Improvements")
(the property described in Paragraphs 1 (a) and (b) above being hereinafter
collectively referred to as the "Property");
(c) all of the personal property set forth on Exhibit B attached
hereto (the "Personal Property");
(d) to the extent Seller has rights to transfer such property, all
right, title and interest of Seller in and to any and all site plans, surveys,
drawings, plans and specifications, floor plans, art work, brochures, and
tenant histories in Seller's possession or in the possession of Seller's
leasing and management agents for the Property and which relate to the Land,
the Improvements, the tenant leases or the Personal Property; and
(e) all the property to be conveyed pursuant to the assignment and
assumption of intangible property (in the form of Exhibit G) and the assignment
and assumption of leases and security deposits (in the form of Exhibit I).
Notwithstanding the foregoing, the "Property" shall not include any deposits of
Seller held by utility companies with respect to utilities furnished to the
Property, which deposits Seller may withdraw immediately after Closing and
Purchaser shall replace as required by the applicable utility companies.
<PAGE>
2. PURCHASE PRICE. The Purchase Price shall be paid by Purchaser as follows:
2.1. Within three (3) business days after the execution of this
Agreement, the sum of One Hundred Sixty Thousand Four Hundred Sixty-Five and
11/100 Dollars ($160,465.11) (the "Earnest Money") to be held in escrow by and
in accordance with the provisions of the Escrow Agreement ("Escrow Agreement")
attached hereto as Exhibit C. Notwithstanding anything contained in this
Agreement to the contrary, upon any return of the Earnest Money to Purchaser,
$50.00 out of the Earnest Money shall be delivered to Seller by the Title
Company as the bargained for and agreed independent contract consideration for
the agreements of Seller hereunder; and
2.2. On the "Closing Date" (hereinafter defined), the balance of the
Purchase Price, adjusted in accordance with the prorations, by federally wired
"immediately available" funds, on or before 1:00 p.m Chicago time.
3. TITLE COMMITMENT AND SURVEY.
3.1. 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 Company (hereinafter referred to
as "Title Insurer") dated March 24, 1997 for the Property (the "Title
Commitment") together with legible copies of all exception matters set forth
therein and the deed conveying title to the Property to Seller. For purposes
of this Agreement, "Permitted Exceptions" shall mean: (a) general real estate
taxes, association assessments, special assessments, special district taxes and
related charges not yet due and payable; (b) matters shown on the "Existing
Survey" (hereinafter defined); (c) matters caused by the actions of Purchaser;
and (d) the title exceptions set forth in Schedule B of the Title Commitment as
Numbers 5 (open) and 6 through 14, inclusive, to the extent that same affect
the Property. All other exceptions to title shall be referred to as
"Unpermitted Exceptions". The Title Commitment shall be conclusive evidence of
good title as therein shown as to all matters to be insured by the title
policy, subject only to the exceptions therein stated. On the Closing Date,
Title Insurer shall deliver to Purchaser a standard title policy in conformance
with the previously delivered Title Commitment, subject to Permitted Exceptions
and Unpermitted Exceptions waived by Purchaser (the "Title Policy"). Seller
shall pay for all the costs of the Title Commitment and Title Policy, including
the cost of any endorsements to, or extended coverage on, the Title Policy,
should the Purchaser elect that the Title Policy include such endorsements and
extended coverage.
3.2. Purchaser has received a survey of the Property prepared by Orchard,
Papke, Hiltz & McCliment, Inc. dated June 23, 1981, revised to July 20, 1981,
(the "Existing Survey"). Seller shall pay the costs of updating the Existing
Survey and Seller shall deliver the updated survey (the "Updated Survey") to
Purchaser within 20 days after the Seller's date of execution hereof, (i)
bearing a certification dated after the date of this Agreement in the form set
forth on Exhibit N hereto, (ii) prepared in a manner sufficient to permit the
Title Company to modify the standard printed exception in the Title Policy
pertaining to discrepancies in area or boundary lines, encroachments,
overlapping of improvements, or similar matters, and (iii) indicating on the
Survey the location of all title exceptions which can be located thereon and
which have been identified for the surveyor.
<PAGE>
3.3. The obligations of Purchaser and Seller to pay various costs set
forth in Paragraphs 3.1 and 3.2 shall survive the termination of this
Agreement.
4. PAYMENT OF CLOSING COSTS. Seller shall pay all stamp, intangible,
transfer, documentary, recording, sales tax and surtax imposed by law with
reference to the "Deed" (hereinafter defined) and other sale documents
delivered in connection with the sale of the Property to Purchaser. Purchaser
shall pay the recording fee, if any, imposed by the applicable recording
office, to record the Deed. Seller and Purchaser shall each pay their
respective attorneys' fees.
5. CONDITION OF TITLE.
5.1. If, prior to "Closing" (as hereinafter defined), a date-down to the
Title Commitment or the Updated Survey discloses any new Unpermitted Exception,
Seller shall have thirty (30) days from the date of the date-down to the Title
Commitment or the Updated Survey, as applicable, at Seller's expense, to (i)
bond over, cure and/or have any Unpermitted Exceptions which, in the aggregate,
do not exceed $250,000.00 (a "Minor Unpermitted Exception"), removed from the
Title Commitment or to have the Title Insurer commit to insure against loss or
damage that may be occasioned by such Unpermitted Exceptions, or (ii) have the
right, but not the obligation, to bond over, cure and/or have any Unpermitted
Exceptions which, in the aggregate, equal or exceed $250,000.00, removed from
the Title Commitment or to have the Title Insurer commit to insure against loss
or damage that may be occasioned by such Unpermitted Exceptions. In such
event, the time of Closing shall be delayed, if necessary, to give effect to
said aforementioned time periods. If Seller fails to cure or have said
Unpermitted Exception removed or have the Title Insurer commit to insure as
specified above within said thirty (30) day period or if Seller elects not to
exercise its rights under (ii) in the preceding sentence, Purchaser may
terminate this Agreement upon notice to Seller within five (5) days after the
expiration of said thirty (30) day period; provided, however, and
notwithstanding anything contained herein to the contrary, if the Unpermitted
Exception which gives rise to Purchaser's right to terminate was recorded
against the Property as a result of the affirmative, willful action of Seller
(and not by any unrelated third party) or if Seller is able to bond over, cure
or remove a Minor Unpermitted Exception for a cost not to exceed $250,000 or
the Title Insurer is willing to insure over a Minor Unpermitted Exception for a
cost not to exceed $250,000 in accordance with the terms hereof and Seller
fails to expend said funds in either case, then Purchaser shall have the
additional rights contained in Paragraph 11 hereof. Absent notice from
Purchaser to Seller in accordance with the preceding sentence, Purchaser shall
be deemed to have elected to take title subject to said Unpermitted Exception.
If Purchaser terminates this Agreement in accordance with the terms of this
Paragraph 5.1, this Agreement shall become null and void without further action
of the parties and all Earnest Money theretofore deposited into the escrow by
Purchaser together with any interest accrued thereon, shall be returned to
Purchaser, and neither party shall have any further liability to the other,
except for Purchaser's obligation to indemnify Seller and restore the Property,
as more fully set forth in Paragraph 7.
<PAGE>
5.2. Seller agrees to convey fee simple title to the Property to
Purchaser by a Deed C (the "Deed") in recordable form subject only to the
Permitted Exceptions and any Unpermitted Exceptions waived by Purchaser.
6. CONDEMNATION, EMINENT DOMAIN, DAMAGE AND CASUALTY.
6.1. Except as provided in the indemnity provisions contained in
Paragraph 7.1 of this Agreement, Seller shall bear all risk of loss with
respect to the Property up to the earlier of the dates upon which either
possession or title is transferred to Purchaser in accordance with this
Agreement. Notwithstanding the foregoing, in the event of damage to the
Property by fire or other casualty prior to the Closing Date, repair of which
would cost less than or equal to $100,000.00 (as determined by Seller in good
faith) Purchaser shall not have the right to terminate its obligations under
this Agreement by reason thereof, but Seller shall have the right to elect to
either repair and restore the Property (in which case the Closing Date shall be
extended until completion of such restoration) or to assign and transfer to
Purchaser on the Closing Date all of Seller's right, title and interest in and
to all insurance proceeds paid or payable to Seller on account of such fire or
casualty. Seller shall promptly notify Purchaser in writing of any such fire
or other casualty and Seller's determination of the cost to repair the damage
caused thereby. In the event of damage to the Property by fire or other
casualty prior to the Closing Date, repair of which would cost in excess of
$100,000.00 (as determined by Seller in good faith), then this Agreement may be
terminated at the option of Purchaser, which option shall be exercised, if at
all, by Purchaser's written notice thereof to Seller within ten (10) business
days after Purchaser receives written notice of such fire or other casualty and
Seller's determination of the amount of such damages, or prior to expiration of
the Due Diligence Period, whichever is later and upon the exercise of such
option by Purchaser this Agreement shall become null and void, the Earnest
Money deposited by Purchaser shall be returned to Purchaser together with
interest thereon, and neither party shall have any further liability or
obligations hereunder. In the event that Purchaser does not exercise the
option set forth in the preceding sentence, the Closing shall take place on the
Closing Date and Seller shall assign and transfer to Purchaser on the Closing
Date all of Seller's right, title and interest in and to all insurance proceeds
paid or payable to Seller on account of the fire or casualty, and Purchaser
shall receive a credit against the Purchase Price equal to the amount of any
applicable deductible.
6.2. If between the date of this Agreement and the Closing Date, any
condemnation or eminent domain proceedings are initiated which might result in
the taking of any part of the Property or the taking or closing of any right of
access to the Property, Seller shall immediately notify Purchaser of such
occurrence. In the event that the taking of any part of the Property shall, in
Purchaser's reasonable opinion: (i) materially impair access to the Property;
(ii) cause any material non-compliance with any applicable law, ordinance, rule
or regulation of any federal, state or local authority or governmental agencies
having jurisdiction over the Property or any portion thereof; or (iii)
materially and adversely impair the use of the Property as it is currently
being operated (hereinafter collectively referred to as a "Material Event"),
Purchaser may:
<PAGE>
6.2.1. terminate this Agreement by written notice to Seller, in
which event the Earnest Money deposited by Purchaser, together with interest
thereon, shall be returned to Purchaser and all rights and obligations of the
parties hereunder with respect to the closing of this transaction will cease;
or
6.2.2. proceed with the Closing, in which event Seller shall assign
to Purchaser all of Seller's right, title and interest in and to any award made
in connection with such condemnation or eminent domain proceedings.
6.3. Purchaser shall then notify Seller, within ten (10) business days
after Purchaser's receipt of Seller's notice or prior to expiration of the Due
Diligence Period, whichever is later, whether Purchaser elects to exercise its
rights under Paragraph 6.2.1 or Paragraph 6.2.2. Closing shall be delayed, if
necessary, until Purchaser makes such election. If Purchaser fails to make an
election within such ten (10) business day period, Purchaser shall be deemed to
have elected to exercise its rights under Paragraph 6.2.2. If between the date
of this Agreement and the Closing Date, any condemnation or eminent domain
proceedings are initiated which do not constitute a Material Event, Purchaser
shall be required to proceed with the Closing, in which event Seller shall
assign to Purchaser all of Seller's right, title and interest in and to any
award made in connection with such condemnation or eminent domain proceedings.
7. INSPECTION AND AS-IS CONDITION.
7.1. During the period commencing on May 5, 1997 and ending at 5:00 p.m.
Chicago time on June 4, 1997 (said period being herein referred to as the
"Inspection Period"), Purchaser and the agents, engineers, employees,
contractors and surveyors retained by Purchaser may enter upon the Property, at
any reasonable time and upon reasonable prior notice to Seller, to inspect the
Property, including a review of leases located at the Property, and to conduct
and prepare such studies, tests and surveys as Purchaser may deem reasonably
necessary and appropriate. In connection with Purchaser's review of the
Property, during the Due Diligence Period and thereafter if this Agreement is
not terminated by Purchaser in accordance with the terms hereof, Seller agrees
to deliver to Purchaser, copies of the current rent roll for the Property,
copies of leases affecting the Property, the most recent tax and insurance
bills, utility account numbers, service contracts, and unaudited year end 1995,
1996 and 1997 year-to-date operating statements.
All of the foregoing tests, investigations and studies to be conducted
under this Paragraph 7.1 by Purchaser shall be at Purchaser's sole cost and
expense and Purchaser shall restore the Property to the condition existing
prior to the performance of such tests or investigations by or on behalf of
Purchaser. Purchaser shall defend, indemnify and hold Seller and any
affiliate, parent of Seller, and all shareholders, employees, officers and
directors of Seller or Seller's affiliate or parent (hereinafter collectively
referred to as "Affiliate of Seller") harmless from any and all liability, cost
and expense (including without limitation, reasonable attorney's fees, court
costs and costs of appeal) suffered or incurred by Seller or Affiliates of
Seller for injury to persons or property caused by Purchaser's investigations
and inspection of the Property. Purchaser shall undertake its obligation to
defend set forth in the preceding sentence using attorneys selected by
Purchaser who are reasonably acceptable to Seller.
<PAGE>
Prior to commencing any such tests, studies and investigations, Purchaser
shall furnish to Seller a certificate of insurance evidencing comprehensive
general public liability insurance insuring the person, firm or entity
performing such tests, studies and investigations and listing Seller and
Purchaser as additional insureds thereunder.
If Purchaser is dissatisfied with the results of the tests, studies or
investigations performed or information received pursuant to this Paragraph
7.1, or if Purchaser, in its sole discretion, elects not to purchase the
Property for any reason whatsoever, 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 received by Seller pursuant to this Paragraph 7.1 prior to the expiration
of the Inspection Period, then the right of Purchaser to terminate this
Agreement pursuant to this Paragraph 7.1 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 in
connection with its due diligence during the Inspection Period; and (ii) the
Earnest Money deposited by Purchaser shall be immediately paid to Purchaser,
together with any interest earned thereon, 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 7.1. Notwithstanding anything contained
herein to the contrary, the terms of this Paragraph 7.1, shall survive the
Closing and the delivery of the Deed and termination of this Agreement.
7.2. Seller makes no representations or warranties relating to the
condition of the Property or the Personal Property. Purchaser acknowledges and
agrees that it will be purchasing the Property and the Personal Property based
solely upon its inspections and investigations of the Property and the Personal
Property, and that Purchaser will be purchasing the Property and the Personal
Property "AS IS" and "WITH ALL FAULTS", based upon the condition of the
Property and the Personal Property as of the date of this Agreement, wear and
tear and loss by fire or other casualty or condemnation excepted. Without
limiting the foregoing, Purchaser acknowledges that, except as may otherwise be
specifically set forth elsewhere in this Agreement, neither Seller nor its
consultants, brokers or agents have made any representations or warranties of
any kind upon which Purchaser is relying as to any matters concerning the
Property or the Personal Property, including, but not limited to, the condition
of the land or any improvements comprising the Property, the existence or
non-existence of "Hazardous Materials" (as hereinafter defined), economic
projections or market studies concerning the Property, any development rights,
taxes, bonds, covenants, conditions and restrictions affecting the Property,
water or water rights, topography, drainage, soil, subsoil of the Property, the
utilities serving the Property or any zoning or building laws, rules or
regulations or "Environmental Laws" (hereinafter defined) affecting the
Property. Seller makes no representation or warranty that the Property
complies with Title III of the Americans with Disabilities Act or any fire code
or building code. Purchaser hereby releases Seller and the Affiliates of
<PAGE>
Seller from any and all liability in connection with any claims which Purchaser
may have against Seller or the Affiliates of Seller, and Purchaser hereby
agrees not to assert any claims for contribution, cost recovery or otherwise,
against Seller or the Affiliates of Seller, relating directly or indirectly to
the existence of asbestos or Hazardous Materials on, or environmental
conditions of, the Property, whether known or unknown. As used herein,
"Environmental Laws" means all federal, state and local statutes, codes,
regulations, rules, ordinances, orders, standards, permits, licenses, policies
and requirements (including consent decrees, judicial decisions and
administrative orders) relating to the protection, preservation, remediation or
conservation of the environment or worker health or safety, all as amended or
reauthorized, or as hereafter amended or reauthorized, including without
limitation, the Comprehensive Environmental Response, Compensation and
Liability Act ("CERCLA"), 42 U.S.C. Section 9601 et seq., the Resource
Conservation and Recovery Act of 1976 ("RCRA"), 42 U.S.C. Section 6901 et seq.,
the Emergency Planning and Community Right-to-Know Act ("Right-to-Know Act"),
42 U.S.C. Seciton 11001 et seq., the Clean Air Act ("CAA"), 42 U.S.C. Section
7401 et seq., the Federal Water Pollution Control Act ("Clean Water Act"), 33
U.S.C. Section 1251 et seq., the Toxic Substances Control Act ("TSCA"), 15
U.S.C. Section 2601 et seq., the Safe Drinking Water Act ("Safe Drinking Water
Act"), 42 U.S.C. Section 300f et seq., the Atomic Energy Act ("AEA"), 42 U.S.C.
Section 2011 et seq., the Occupational Safety and Health Act ("OSHA"),
29 U.S.C. Section 651 et seq., and the Hazardous Materials Transportation Act
(the "Transportation Act"), 49 U.S.C. Section 1802 et seq. As used herein,
"Hazardous Materials" means: (1) "hazardous substances," as defined by CERCLA;
(2) "hazardous wastes," as defined by RCRA; (3) any radioactive material
including, without limitation, any source, special nuclear or by-product
material, as defined by AEA; (4) asbestos in any form or condition; (5)
polychlorinated biphenyls; and (6) any other material, substance or waste to
which liability or standards of conduct may be imposed under any Environmental
Laws. Notwithstanding anything contained herein to the contrary, the terms of
this Paragraph 7.2 shall survive the Closing and the delivery of the Deed and
termination of this Agreement.
7.3. 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 makes no representation or
warranty that such material is complete or accurate or that Purchaser will
achieve similar financial or other results with respect to the operations of
the Property, it being acknowledged by Purchaser that Seller's operation of the
Property and allocations of revenues or expenses may be vastly different than
Purchaser may be able to attain. Purchaser acknowledges that it is a
sophisticated and experienced purchaser of real estate and further that
Purchaser has relied upon its own investigation and inquiry with respect to the
operation of the Property and releases Seller and the Affiliates of Seller from
any liability with respect to such historical information. Notwithstanding
anything contained herein to the contrary, the terms of this Paragraph 7.3
shall survive the Closing and the delivery of the Deed and termination of this
Agreement.
<PAGE>
7.4. Seller has provided to Purchaser the following existing report:
Report of Phase I Environmental Site Assessment and Limited Asbestos Survey
prepared by Law Engineering and Environmental Services dated September 24, 1993
("Existing Report"). Seller makes no representation or warranty concerning
the accuracy or completeness of the Existing Report. Purchaser hereby releases
Seller and the Affiliates of Seller from any liability whatsoever with respect
to the Existing Report, or, including, without limitation, the matters set
forth in the Existing Report, and the accuracy and/or completeness of the
Existing Report. Furthermore, Purchaser acknowledges that it will be
purchasing the Property with all faults disclosed in the Existing Report.
Notwithstanding anything contained herein to the contrary, the terms of this
Paragraph 7.4 shall survive the Closing and the delivery of the Deeds and
termination of this Agreement.
8. CLOSING. The closing of this transaction (the "Closing") shall be on July
7, 1997 (the "Closing Date"), at the office of Title Insurer, Chicago, Illinois
at which time Seller shall deliver possession of the Property to Purchaser.
Purchaser may elect to accelerate the Closing Date to a day prior to July 7,
1997 by notice to Seller designating an accelerated Closing Date, but such
accelerated Closing Date shall not occur sooner than three (3) business days
after Seller's receipt of such notice of accelerated Closing Date. This
transaction shall be closed through an escrow with Title Insurer, in accordance
with the general provisions of the usual and customary form of deed and money
escrow for similar transactions in Michigan, or at the option of either party,
the Closing shall be a "New York style" closing at which the Purchaser shall
wire the Purchase Price to Title Insurer on the Closing Date and prior to the
release of the Purchase Price to Seller, Purchaser shall receive the Title
Policy or marked up commitment dated the date of the Closing Date. In the
event of a New York style closing, Seller shall deliver to Title Insurer any
customary affidavit in connection with a New York style closing. Except as
provided in Paragraph 3 and Paragraph 4, all closing and escrow fees shall be
divided equally between the parties hereto.
9. CLOSING DOCUMENTS.
9.1. On or prior to the Closing Date, Seller and Purchaser shall execute
and deliver to one another a joint closing statement. In addition, Purchaser
shall deliver to Seller the balance of the Purchase Price, an assumption of the
documents set forth in Paragraph 9.2.3 and 9.2.4 and such other documents as
may be reasonably required by the Title Insurer in order to consummate the
transaction as set forth in this Agreement.
9.2. On the Closing Date, Seller shall deliver to Purchaser the
following:
9.2.1. the Deed (in the form of Exhibit E attached hereto),
subject to Permitted Exceptions and those Unpermitted Exceptions waived by
Purchaser;
9.2.2. a special warranty bill of sale conveying the Personal
Property (in the form of Exhibit F attached hereto);
<PAGE>
9.2.3. assignment and assumption of intangible property (in the form
attached hereto as Exhibit G), including, without limitation, the service
contracts listed in Exhibit H;
9.2.4. an assignment and assumption of leases and security deposits
(in the form attached hereto as Exhibit I);
9.2.5. non-foreign affidavit (in the form of Exhibit J attached
hereto);
9.2.6. original, and/or, to the extent originals are not reasonably
available, copies of, leases, operating agreements, service contracts and files
thereof affecting the Property in Seller's possession (which shall be delivered
at the Property);
9.2.7. all documents and instruments reasonably required by the
Title Insurer to issue the Title Policy;
9.2.8. possession of the Property to Purchaser, subject to the terms
of leases;
9.2.9. evidence of the termination of the management agreement;
9.2.10. notice to the tenants of the Property of the transfer of
title and assumption by Purchaser of the landlord's obligation under the leases
and the obligation to refund the security deposits (in the form of Exhibit K);
9.2.11. a certified rent roll (in the form of Exhibit P);
9.2.12. a recertification certificate in the form of Exhibit N
executed by Seller which shall certify, represent and warrant, as of the date
of Closing, each and every representation and warranty made by Seller in this
Agreement;
9.2.13. such agreements, affidavits or other documents as may be
reasonably required by the Title Insurer to issue the Title Policy subject only
to the Permitted Title Exceptions and waived Unpermitted Exceptions and to
eliminate such standard exceptions;
9.2.14. an updated Title Commitment issued by the Title Insurer,
dated as of the date and time of Closing, subject only to the Permitted
Exceptions and waived Unpermitted Exceptions;
9.2.15. certified copies of Seller's organizational documents as
required by title insurer;
9.2.16. an opinion from Seller's counsel stating that Seller has
duly authorized, executed and delivered to Purchaser this Agreement and all of
the conveyance documents to be delivered by Seller hereunder;
<PAGE>
9.2.17. to the extent in Seller's possession or reasonably available
to Seller, originals of the following items (to be delivered at the Property):
(1) complete sets of all architectural, mechanical, structural and/or
electrical plans and specifications used in connection with the construction of
or alterations or repairs to the Property; (2) as-built plans and
specifications for the Property; (3) any warranties and guaranties with respect
to any of the Property; (4) current real estate and personal property tax
bills; (5) surveys and plot plans of the Property; and (6) permits and other
authorizations;
9.2.18. all books, records, operating reports, appraisal reports,
files and other materials in Seller's possession or control which are necessary
in Purchaser's discretion to maintain continuity of operation of the Property,
including, without limitation, all applications, correspondence and credit
reports relating to tenants of the Property to be delivered at the Property;
and
9.2.19. an executed copy of Internal Revenue Service Form 1099 as
required by the Tax Reform Act of 1986, and all regulations applicable thereto.
10. PURCHASER'S DEFAULT. ALL EARNEST MONEY DEPOSITED INTO THE ESCROW IS TO
SECURE THE TIMELY PERFORMANCE BY PURCHASER OF ITS OBLIGATIONS AND UNDERTAKINGS
UNDER THIS AGREEMENT. IN THE EVENT OF A DEFAULT OF THE PURCHASER UNDER THE
PROVISIONS OF THIS AGREEMENT, SELLER SHALL RETAIN ALL OF THE EARNEST MONEY AND
THE INTEREST THEREON AS SELLER'S SOLE RIGHT TO DAMAGES OR ANY OTHER REMEDY,
EXCEPT FOR PURCHASER'S OBLIGATIONS TO INDEMNIFY SELLER AND RESTORE THE PROPERTY
AS SET FORTH IN PARAGRAPH 7.1 HEREOF. THE PARTIES HAVE AGREED THAT SELLER'S
ACTUAL DAMAGES, IN THE EVENT OF A DEFAULT BY PURCHASER, WOULD BE EXTREMELY
DIFFICULT OR IMPRACTICAL TO DETERMINE. THEREFORE, BY PLACING THEIR INITIALS
BELOW, THE PARTIES ACKNOWLEDGE THAT THE EARNEST MONEY HAS BEEN AGREED UPON,
AFTER NEGOTIATION, AS THE PARTIES' REASONABLE ESTIMATE OF SELLER'S DAMAGES.
11. SELLER'S DEFAULT. IF THIS SALE IS NOT COMPLETED BECAUSE OF SELLER'S
DEFAULT, PURCHASER'S SOLE REMEDY SHALL BE THE RETURN OF ALL EARNEST MONEY
TOGETHER WITH ANY INTEREST ACCRUED THEREON, AND THIS AGREEMENT SHALL THEN
BECOME NULL AND VOID AND OF NO EFFECT AND THE PARTIES SHALL HAVE NO FURTHER
LIABILITY TO EACH OTHER AT LAW OR IN EQUITY, EXCEPT FOR PURCHASER'S OBLIGATIONS
TO INDEMNIFY SELLER AND RESTORE THE PROPERTY AS SET FORTH MORE FULLY IN
PARAGRAPH 7 AND PURCHASER'S RIGHT TO RECEIVE FROM SELLER ITS ACTUAL, DOCUMENTED
THIRD PARTY EXPENSES INCURRED IN THE PERFORMANCE OF ITS DUE DILIGENCE HEREUNDER
OF THIS AGREEMENT, NOT TO EXCEED $75,000 IN THE AGGREGATE. NOTWITHSTANDING
ANYTHING CONTAINED HEREIN TO THE CONTRARY, IF SELLER'S DEFAULT IS (I) ITS (AND
NOT AN UNRELATED THIRD PARTY'S) AFFIRMATIVE, WILLFUL ACTION WHICH RESULTS IN
THE RECORDING OF AN ENCUMBRANCE AGAINST THE PROPERTY WHICH GIVES RISE TO
PURCHASER'S RIGHT TO TERMINATE THIS AGREEMENT PURSUANT TO PARAGRAPH 5 HEREOF;
(II) ITS FAILURE TO EXPEND UP TO $250,000 IF (A) SELLER IS ABLE TO BOND OVER,
CURE OR REMOVE A MINOR UNPERMITTED EXCEPTION FOR A COST NOT TO EXCEED $250,000
OR (B) THE TITLE INSURER IS WILLING TO INSURE OVER A MINOR UNPERMITTED
EXCEPTION FOR A COST NOT TO EXCEED $250,000 IN ACCORDANCE WITH THE TERMS
HEREOF; OR (III) ITS WILLFUL REFUSAL TO DELIVER THE DEED, THEN PURCHASER WILL
BE ENTITLED TO SUE FOR SPECIFIC PERFORMANCE.
<PAGE>
12. PRORATIONS.
12.1. The items described in this Paragraph shall be prorated between
the parties on a per diem basis (on the basis of actual calendar days in the
relevant calendar year) so that credits and charges preceding or on 11:59 P.M.
on day proceeding the Closing Date shall be allocated to Seller and credits and
charges for the period after 11:59 P.M. on the day proceeding the Closing Date
and all days thereafter shall be allocated to Purchaser. As of December 1,
1997, Seller and Purchaser shall jointly prepare a final proration statement in
accordance with the provisions of this Paragraph 12 and a final adjusting
payment shall then be made, as provided in Paragraph 12.3 hereof.
12.1.1. Real estate taxes (on the basis of allowable discounts for
early payments), general and special assessments and the like ("Taxes") for the
tax period of the Closing Date, as such Taxes may be increased or decreased
after the Closing, shall be prorated as of the Closing Date based on the most
recent ascertainable amount as part of the proration of "Maintenance Expenses"
(hereinafter defined) in Paragraph 12.1.3.
12.1.2. Minimum rent (exclusive of delinquent or unpaid rents, but
including prepaid rents) paid under the Leases shall be prorated as of the
Closing Date. Percentage Rent, if any, shall be prorated in connection with
the final adjustment set forth in Paragraph 12.3 herein.
12.1.3. Certain of the Leases provide for reimbursement to lessor
of maintenance and operation charges, Taxes, insurance and other expenses
(herein collectively referred to as "Maintenance Expenses"). Some Leases
provide for a determination of the tenant's share of Maintenance Expenses on an
annual basis but provide that an estimated amount thereof (either in the
aggregate or for specified components thereof) shall be paid by tenant to
lessor monthly during the course of the year with a final adjustment to be made
after the close of the year when such costs and expenses have been finally
determined. Seller and Purchaser have agreed as follows with respect to
Maintenance Expenses:
(i) Except as hereinafter provided, Seller shall be responsible for
the payment of all Maintenance Expenses attributable to periods of time prior
to the Closing Date (without taking into account "stops" for base years in the
Leases) and Seller shall be entitled to receive and retain all reimbursements
thereof collected from tenants on account thereof with respect to the period
through the Closing Date (taking into account "stops" for base years in the
Leases); and Purchaser shall be responsible for the payment of all Maintenance
Expenses attributable to periods of time from and after the Closing Date
(without taking into account "stops" for base years in the Leases) and
Purchaser shall be entitled to receive and retain from the tenants all
reimbursements thereof collected from tenants on account thereof with respect
to the Closing Date and thereafter (taking into account "stops" for base years
in the Leases). Purchaser shall be entitled to a credit against the Purchase
Price for sums that are due (or accrued) and unpaid as of the Closing Date
under any Service Contracts which have been assigned to Purchaser, and Seller
shall be entitled to a credit to the extent that sums have been paid under any
Service Contracts which have been assigned to Purchaser for services to be
performed or goods to be delivered after the Closing Date.
<PAGE>
(ii) As a part of the final proration referred to in Section 12.3
hereof all Maintenance Expenses received from Tenants for the period of time
prior to the Closing Date shall be delivered to Seller.
12.1.4. To the extent not covered by Paragraph 12.1.3, utility and
fuel charges, including, without limitation, charges for water, electricity,
gas, gasoline, steam, oil and telephones used in connection with the heating,
cooling, lighting, maintenance and operation of the Property and any personal
property included therein or used in connection therewith shall be prorated as
of the Closing Date. Seller shall obtain readings of all utility meters no
earlier than 30 days prior to the Closing Date. As a part of the final
proration referred to in Section 12.3 hereof, prorations under this Section
12.1.4 shall be based upon the actual bills received for the month of Closing.
12.1.5. To the extent not covered by Paragraph 12.1.3 annual fees
for the permits and licenses shall be prorated as of the Closing Date.
12.1.6. Personal property taxes, if any, for any personal property
transferred to Purchaser shall be prorated as of the Closing Date.
12.1.7. Purchaser shall use reasonable, good faith efforts in
collecting from the tenants any under-payments for Maintenance Expenses for
1996 and 1997; provided, however, Purchaser shall have no obligation to enter
into litigation to collect such Maintenance Expenses for 1996 and 1997.
12.2. The following amounts, if any (the "Adjustments"), without
duplication, shall be made:
12.2.1. All security deposits held by Seller as of the Closing Date
shall be paid to Purchaser at the Closing.
12.2.2. All other reasonable expenses normal to the operation and
maintenance of the Property which require payments either in advance or in
arrears for periods which begin prior to the Closing Date or end thereafter
shall be apportioned between Seller and Purchaser as of 11:59 P.M. on the day
preceding the Closing Date.
12.2.3. Purchaser shall receive at Closing a credit equal to the
amount of any unsatisfied obligations for "Tenant Improvement and Leasing
Commissions" of Seller for the Frontier Lease (as hereinafter defined) set
forth in Exhibit O. Purchaser agrees to assume the payment of the remaining
"Tenant Improvement and Leasing Commissions" as shown on Exhibit O (without a
credit from Seller) and to the extent Seller pays any amounts toward the
remaining "Tenant Improvement and Leasing Commissions" obligation prior to
Closing then Seller shall receive a credit from Purchaser therefor. Seller
shall receive a credit, if any, as provided in Paragraph 32. Purchaser shall
assume at Closing all third party construction contracts for the performance of
tenant improvement work and leasing commission agreements in connection with
those leases (i) for which Seller is giving to Purchaser a credit as set forth
on Exhibit O, (ii) for which Purchaser is assuming the obligations without a
credit set forth on Exhibit O and (iii) for which Purchaser is assuming the
obligations pursuant to Paragraph 32 herein.
<PAGE>
12.3. In connection with the Prorations and the Adjustments herein and
as provided, there shall be prepared the following statements, schedules and
certificate:
12.3.1. Seller shall prepare or cause to be prepared statements in
reasonable detail showing separately each item prorated or adjusted pursuant to
this Agreement and a detailed reconciliation showing separately each item
prorated or adjusted pursuant to this Agreement and a detailed reconciliation
of the Prorations and Adjustments, such statements to be delivered at least
three (3) business days prior to the Closing and adjusted as necessary at the
Closing. The parties shall mutually agree after review thereof by Purchaser
that said closing statement accurately reflects the method of proration set
forth in this Agreement.
12.3.2. Purchaser, in cooperation with Seller, shall prepare, not
later than December 1, 1997, a final proration statement presenting correctly
the Prorations and Adjustments in accordance with the terms of this Agreement
and a statement of "Post-Closing Receipts" (hereinafter defined). Upon
issuance of such proration statement the parties shall make a proration payment
as appropriate (including, without limitation, a settlement of Post-Closing
Receipts). For purposes of preparation of the foregoing statements and at all
reasonable times thereafter, the parties agree to allow the other party and the
other party's accountants and representatives, to examine so much of the books
and records in the possession and control of the other party as relate to such
statements and final reconciliations with tenants on Maintenance Expenses and
other charges at the place or places where they are then regularly maintained.
12.4. All sums paid following the Closing Date by any tenant of the
Property who is indebted to Seller for rent, additional rent or any other sum
due under its Lease for any period prior to and including the Closing Date,
after receipt by Purchaser of all then currently due amounts by said tenant and
any reasonable actual out-of-pocket collection costs of Purchaser shall be
deemed a "Post-Closing Receipt" until such time as all such indebtedness to
Seller is paid in full. Within ten (10) days following each receipt by
Purchaser of a Post-Closing Receipt (other than with respect to a Maintenance
Expense received from a Tenant which will be adjusted as provided in Paragraphs
12.1 and 12.3), Purchaser shall pay such Post-Closing Receipt to Seller.
Purchaser shall use reasonable efforts to collect all amounts which, upon
collection, would constitute Post-Closing Receipts hereunder, but Purchaser
shall not be required to institute legal action on account thereof nor to
engage attorneys or other professionals in such efforts. If by November 15,
1997 Purchaser has not collected all amounts due Seller and shall not have
commenced litigation to collect such Post-Closing Receipts, Seller, after
notice to Purchaser, may, at Seller's expense, commence litigation to collect
such unpaid arrearage; provided, however, that Seller shall have no right to
commence any proceeding to evict the tenant or recover possession of any
tenant's space or interfere with the tenant's or Purchaser's ability (other
than financial impact resulting from such litigation) to conduct business or
take any action which would limit Purchaser's rights to pursue any remedy
Purchaser may have for a default under any Lease. Purchaser may, by written
notice to Seller within twenty (20) days of receipt of Seller's notice,
<PAGE>
restrict Seller from collecting such unpaid arrearage, but only if Purchaser
first pays Seller such unpaid arrearage, in exchange for Seller's assignment to
Purchaser of all of Seller's rights and causes of action with respect thereto.
Purchaser shall cooperate fully with Seller, at no expense to Purchaser, in
this regard and shall execute such instruments, if any, as Seller may require
in order for Seller to commence and prosecute any such litigation.
12.5. Paragraph 12 of this Agreement shall survive the Closing and the
delivery and recording of the Deed until December 31, 1997.
13. RECORDING. Neither this Agreement nor a memorandum thereof shall be
recorded and the act of recording by Purchaser shall be an act of default
hereunder by Purchaser and subject to the provisions of Paragraph 10 hereof.
14. ASSIGNMENT. The Purchaser shall not have the right to assign its interest
in this Agreement without the prior written consent of the Seller.
Notwithstanding the foregoing, Purchaser may assign its interest in this
Agreement without the consent of Seller to any entity affiliated with
Purchaser, or the principals of Purchaser, or to any fund sponsored by
Purchaser or its affiliate, provided that the assignee assumes the obligations
of Purchaser hereunder. If any assignee of Purchaser under this Agreement
petitions or applies for relief in bankruptcy or Assignee is adjudicated as a
bankrupt or insolvent, or Assignee files any petition, application for relief
or answer-seeking or acquiescing in any reorganization, arrangement,
composition, readjustment, liquidation, dissolution or similar relief for
itself under any present or future federal, state or other statute, law, code
or regulation relating to bankruptcy, insolvency, or other relief for debtors
(collectively, a "Bankruptcy Filing") on or before the Closing Date, said
Bankruptcy Filing shall be a default under this Agreement and Purchaser shall
indemnify Seller for all costs, attorney's fees and expenses of Seller
resulting from Seller's efforts to obtain the Earnest Money as liquidated
damages and to clear title to the Property from any encumbrance resulting from
the Bankruptcy Filing.
15. BROKER. The parties hereto represent and warrant that no broker
commission or finder fee is due and payable in connection with this transaction
other than to Insignia Mortgage & Investment Company ("Insignia") (to be paid
by Seller). Seller's commission to Insignia shall only be payable out of the
proceeds of the sale of the Property in the event the transaction set forth
herein closes. Purchaser and Seller shall indemnify, defend and hold the other
party hereto harmless from any claim whatsoever (including without limitation,
reasonable attorney's fees, court costs and costs of appeal) from anyone
claiming by or through the indemnifying party any fee, commission or
compensation on account of this Agreement, its negotiation or the sale hereby
contemplated other than to Insignia. The indemnifying party shall undertake
its obligations set forth in this Paragraph 15 using attorneys selected by the
indemnifying party and reasonably acceptable to the indemnified party. The
provisions of this Paragraph 15 will survive the Closing and delivery of the
Deed.
<PAGE>
16. REPRESENTATIONS, WARRANTIES AND COVENANTS.
16.1. Any reference herein to Seller's knowledge or notice of any matter
or thing shall only mean such knowledge or notice that has actually been
received by Tom Molina, the asset manager of the Property (the "Seller's
Representative") and any representation or warranty of the Seller is based upon
those matters of which the Seller's Representative has actual knowledge. Any
knowledge or notice given, had or received by any of Seller's agents, servants
or employees shall not be imputed to Seller, the general partner or limited
partners of Seller, the subpartners of the general partner or limited partners
of Seller or Seller's Representative. A copy of Paragraph 16.2 shall be
delivered to the on-site management of the Property within two (2) days after
the execution by Seller of this Agreement, with a request to advise Tom Molina
within five (5) business days after receipt by the on-site manager as to the
accuracy and truthfulness of the representations and warranties. If the on-site
manager indicates that any of the representations or warranties were incorrect,
Seller shall notify Purchaser as to the response of the on-site manager by ten
(10) business days after the execution by Seller. If the on-site manager
responds that any of the representations or warranties were incorrect then the
terms of Paragraph 16.5 herein shall apply. If Seller fails to so notify
Purchaser, Purchaser shall be entitled to conclude that the on-site manager
reviewed the representations and warranties and that they are correct.
16.2. Seller's Representations and Warranties. Subject to the
limitations set forth in Paragraph 16.1, Seller hereby represents and warrants
to Purchaser, which representations, warranties and covenants are made to
Seller's knowledge and which shall be deemed repeated and made as of the
Closing Date and survive the Closing for a period of the earlier of (i) six (6)
months after the Closing Date and (ii) December 31, 1997 (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 earlier of the preceding
dates), as follows:
(a) Seller is duly organized and legally existing and in good
standing as a limited partnership under the laws of Illinois. Seller is
registered as a foreign limited partnership under the laws of Michigan. The
execution and delivery of, and performance under, this Agreement are within
Seller's powers and have been duly authorized by all requisite partnership
action. The person executing this Agreement on behalf of Seller has the
authority to do so. This Agreement constitutes the legal, valid and binding
obligation of Seller enforceable in accordance with its terms, subject to
equitable principles and laws applicable generally to creditor's rights.
Performance of this Agreement will not result in any breach of, or constitute
any default under, or result in the imposition of a lien or encumbrance on the
Property under, any agreement or other instrument to which Seller is a party or
by which Seller or the Property might be bound. To Seller's knowledge, there
is no other person or entity who has an ownership interest in the Property or
whose consent is required in connection with Seller's performance of its
obligations hereunder which consent has not been obtained.
<PAGE>
(b) There is no pending or threatened litigation or administrative
proceedings which would adversely affect the ability of Seller to perform any
of its obligations hereunder. No consent or approval of any person or entity
or of any governmental authority is required with respect to the execution and
delivery of this Agreement by Seller or the consummation by Seller of the
transactions contemplated hereby or the performance by Seller of its
obligations hereunder.
(c) There are no parties in possession of any of the Property other
than tenants pursuant to the Rent Roll listed on Exhibit M hereto.
(d) There is no pending or threatened condemnation or similar
proceeding affecting any of the Property or interest therein.
(e) There is no proceeding or threatened action or proceeding which
could result in a modification or termination of the present zoning of the
Property.
(f) There is no action, suit or proceeding pending or threatened
against or affecting Seller in any court, before any arbitrator or before or by
any Governmental Authority which (a) could adversely affect title to the
Property or any part thereof or the use of the Property by Purchaser or
otherwise affect the Property in any way, (b) in any manner raises any question
affecting the validity or enforceability of this Agreement or any other
agreement or instrument to which Seller is a party or by which it is bound and
that is or is to be used in connection with, or is contemplated by, this
Agreement, or (c) could materially and adversely affect the business, financial
position or results of operations of Seller or the Property.
(g) Except as shown on the Rent Roll attached hereto as Exhibit M or
the Tenant Leases delivered by Seller to Purchaser in connection with
Purchaser's review pursuant to Section 7.1, (i) neither Seller nor the tenant
is in default any of the Tenant Leases; (ii) each tenant has accepted the
premises covered by its Tenant Lease and is in possession of such premises in
accordance with its Lease, and (iii) no tenant or any other person or entity
has any interest in the Property, or right or option to acquire any interest in
the Property, other than the leasehold possessory interest set forth in the
respective tenants' Tenant Leases. No tenant has given written notice to
Seller of its intention to institute litigation with respect to any Tenant
Lease or terminating its tenancy.
(h) No brokerage commissions or compensation of any kind shall be
due in connection with the Tenant Leases or any extensions or renewals thereof
or the income derived therefrom except as set forth in Paragraph 15 hereof.
(i) Exhibit H attached hereto is a complete and correct list of all
management, service, supply, maintenance and other contracts and agreements
(other than Tenant Leases) in effect which affect the Property or are otherwise
related to the construction, ownership, operation, occupancy or maintenance
thereof (collectively, the "Service Contracts").
(j) Exhibit B attached hereto is a list of all the personal property
owned by Seller and used or useful in connection with the maintenance, repair
or operation of the Property.
<PAGE>
(k) All insurance policies maintained by or on behalf of Seller
pertaining to any of the Property or the operation thereof are valid and in
full force and effect and Seller has complied with all requirements or
recommendations of the insurance carriers of such policies. Seller has
received no notice from any insurance company or rating organization to the
effect that the physical condition of the Property would prevent obtaining new
insurance policies at present rates.
(l) There are no property interests, buildings, structures or other
improvements or personal property located on the Property that are owned by
Seller which are necessary for the operation of the Property that are not being
conveyed pursuant to this Agreement.
16.3. Purchaser's Representations. As of the date of this Agreement,
Purchaser represents to Seller that:
(a) Purchaser is duly organized and legally existing as a limited
partnership under the laws of Delaware. The execution and delivery of, and
performance under, this Agreement are within Purchaser's powers and have been
duly authorized by all requisite corporate action. The person executing this
Agreement on behalf of Purchaser has the authority to do so. This Agreement
constitutes the legal, valid and binding obligation of Purchaser enforceable in
accordance with its terms. Performance of this Agreement will not result in
any breach of, or constitute any default under, any material agreement or other
instrument to which Purchaser is a party or by which Purchaser or the Property
might be bound.
(b) There is no pending or, to Purchaser's knowledge, threatened
litigation or administrative proceedings which would adversely affect the
ability of Purchaser to perform any of its obligations hereunder. No consent
or approval of any person or entity or of any governmental authority is
required with respect to the execution and delivery of this Agreement by
Purchaser or the consummation by Purchaser of the transactions contemplated
hereby or the performance by Purchaser of its obligations hereunder.
16.4. Seller's Covenants. Seller hereby covenants and agrees with
Purchaser that, after the date of this Agreement, and prior to Closing (or any
earlier termination of this Agreement pursuant to its terms):
(a) Seller will cause the Property to be maintained and operated in
a good and workmanlike manner and in accordance with all applicable laws,
Seller will not use or occupy, or allow the use or occupancy of, the Property
in any manner which violates any applicable laws. Seller will continue to
maintain and operate the Property as a first class office building in
accordance with the practices of a prudent real estate operator and shall
continue to offer services and amenities in accordance with past practices,
subject to the restrictions contained in this Agreement.
(b) Seller will not remove or cause or permit to be removed any
equipment, fixtures or personal property forming part of the Property unless
the same is replaced, prior to Closing, with similar items of at least equal
suitability, quality and value, free and clear of any liens or security
interests.
<PAGE>
(c) Seller will pay all premiums on, and will not cancel or
voluntarily allow to expire, any of Seller's insurance policies with respect to
any of the Property unless such policy is replaced, without any lapse of
coverage, by another policy or policies providing coverage at least as
extensive as the policy or policies being replaced.
(d) Seller will not seek any zoning changes without Purchaser's
prior written consent.
(e) Seller will maintain its books of account and records in the
usual, regular and ordinary manner, in accordance with sound accounting
principles applied on a basis consistent with the basis used in keeping its
books in prior years.
(f) Seller will not, without the prior written consent of Purchaser,
enter into any new employment, management, service, maintenance or union
agreements relating to the Property or modify, renew or extend any contracts,
unless such new agreements and such contracts, as renewed or extended, will be
cancelable by Purchaser on not more than thirty (30) days prior notice without
any costs for such cancellation.
16.5. If at any time after the execution of this Agreement, either
Purchaser or Seller become aware of information (a "Change") which makes a
representation and warranty contained in this Agreement untrue in any material
respect without regard to limitation based upon personal knowledge, said party
shall promptly disclose said information to the other party hereto. Provided
the party making the representation or warranty did not take any deliberate
actions to cause the representation or warranty in question to become untrue in
any material respect and did not intentionally make a material false
representation or warranty, said party shall not be in default under this
Agreement and the sole remedy of the other party shall be to terminate this
Agreement, in which case Purchaser will receive a refund of the Earnest Money
with any accrued interest thereon and neither party will have any further
liability under this Agreement except to the extent it specifically survives
the termination hereof. Purchaser, provided that it notifies Seller within ten
(10) days after receiving notice from Seller of a Change, may elect to close
subject to such Change and then both parties hereto will be deemed to have
waived their right to terminate this Agreement with respect to such Change.
Notwithstanding anything contained herein to the contrary, if the status of any
of the tenancies changes as a result of the actions of a tenant 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 in Paragraph 16.4, 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 has actual knowledge of prior to the Closing.
<PAGE>
17. LIMITATION OF LIABILITY.
17.1. Neither Seller, nor any Affiliate of Seller, nor any of their
respective beneficiaries, shareholders, partners, officers, directors, agents
or employees, heirs, successors or assigns shall have any personal liability of
any kind or nature for or by reason of any matter or thing whatsoever under, in
connection with, arising out of or in any way related to this Agreement and the
transactions contemplated herein, and Purchaser hereby waives for itself and
anyone who may claim by, through or under Purchaser any and all rights to sue
or recover on account of any such alleged personal liability.
17.2. Notwithstanding anything contained herein to the contrary,
Purchaser hereby agrees that the maximum aggregate liability of Seller for
actual damages (Purchaser hereby waiving any claim for consequential or
punitive damages), in connection with, arising out of or in any way related to
a breach by Seller under this Agreement or any document or conveyance agreement
in connection with the transaction set forth herein after the Closing shall be
$400,000.00.
17.3. Except for Purchaser's obligation to deposit the Earnest Money
and indemnify Seller pursuant to the terms of this Agreement, neither
Purchaser, nor any Affiliate of Purchaser, nor any of their respective
beneficiaries, shareholders, partners, officers, directors, agents or
employees, heirs, successors or assigns shall have any personal liability of
any kind or nature for or by reason of any matter or thing whatsoever under, in
connection with, arising out of or in any way related to this Agreement and the
transactions contemplated herein, and Seller hereby waives for itself and
anyone who may claim by, through or under Seller any and all rights to sue or
recover on account of any such alleged personal liability.
18. TIME OF ESSENCE. Time is of the essence of this Agreement.
19. NOTICES. Any notice or demand which either party hereto is required or
may desire to give or deliver to or make upon the other party shall be in
writing and may be personally delivered or given or made by overnight courier
such as Federal Express, by facsimile transmission or made by United States
registered or certified mail addressed as follows:
TO SELLER: c/o The Balcor Company
Bannockburn Lake Office Plaza
2355 Waukegan Road
Suite A-200
Bannockburn, Illinois 60015
Attention: Ilona Adams
with copies to: The Balcor Company
Bannockburn Lake Office Plaza
2355 Waukegan Road
Suite A-200
Bannockburn, Illinois 60015
Attention: James Mendelson
(847) 317-4367
(847) 317-4462 (FAX)
<PAGE>
and to: Katten Muchin & Zavis
525 West Monroe Street
Suite 1600
Chicago, Illinois 60661-3693
Attention: Daniel J. Perlman, Esq.
(312) 902-5532
(312) 902-1061 (FAX)
TO PURCHASER: c/o Insignia Commercial Group, Inc.
1501 M. Street NW, Ste. 550
Washington, D.C. 20005
Attention: David Fitch
(202) 296-1808
(202) 296-5251 (FAX)
and one copy to: Akin, Gump, Strauss, Hauer & Feld, L.L.P.
590 Madison Avenue
New York, New York 10022
Attention: Robert G. Koen, Esq. or
Gary A. Goodman, Esq.
(212) 872-1000
(212) 872-1002 (FAX)
subject to the right of either party to designate a different address for
itself by notice similarly given. Any notice or demand so given shall be
deemed to be delivered or made on the next business day if sent by overnight
courier, or the same day as given if sent by facsimile transmission and
received by 5:00 p.m. Chicago time or on the 4th business day after the same is
deposited in the United States Mail as registered or certified matter,
addressed as above provided, with postage thereon fully prepaid. Any such
notice, demand or document not given, delivered or made by registered or
certified mail, by overnight courier or by facsimile transmission as aforesaid
shall be deemed to be given, delivered or made upon receipt of the same by the
party to whom the same is to be given, delivered or made. Copies of all
notices shall be served upon the Escrow Agent.
20. EXECUTION OF AGREEMENT AND ESCROW AGREEMENT. Purchaser will execute two
(2) copies of this Agreement and three (3) copies of the Escrow Agreement and
forward them to Seller for execution, accompanied with the Earnest Money
payable to the Escrow Agent set forth in the Escrow Agreement. Seller will
forward one (1) copy of the executed Agreement to Purchaser and will forward
the following to the Escrow Agent:
(A) Earnest Money;
(B) One (1) fully executed copy of this Agreement; and
(C) Three (3) copies of the Escrow Agreement signed by the parties with a
direction to execute two (2) copies of the Escrow Agreement and deliver a fully
executed copy to each of the Purchaser and the Seller.
<PAGE>
21. GOVERNING LAW. The provisions of this Agreement shall be governed by the
laws of the Michigan, except that with respect to the retainage of the Earnest
Money as liquidated damages the laws of the State of Illinois shall govern.
22. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement between
the parties and supersedes all other negotiations, understandings and
representations made by and between the parties and the agents, servants and
employees.
23. COUNTERPARTS. This Agreement may be executed in multiple counterparts,
each of which shall be deemed an original but all of which shall constitute one
and the same instrument.
24. CAPTIONS. Paragraph titles or captions contained herein are inserted as a
matter of convenience and for reference, and in no way define, limit, extend or
describe the scope of this Agreement or any provision hereof.
25. DATES. Whenever any determination is to be made or action is to be taken
on a date specified in this Agreement, if such date shall fall on Saturday,
Sunday or legal holiday under the laws of the State of Michigan, then in such
event said date shall be extended to the next day which is not a Saturday,
Sunday or legal holiday. All references in this Agreement to "the date hereof,"
the date of this Agreement" or similar references shall be deemed to refer to
the later of the two (2) dates on which this Agreement has been signed by the
Seller and Purchaser as indicated by their signatures below, which date shall
be the date of final execution and agreement by the parties hereto.
26. BINDING ON SUCCESSORS AND ASSIGNS. Pursuant to Paragraph 14, this
Agreement and the terms and provisions hereof shall inure to the benefit of and
be binding upon the parties hereto and their respective successors and assigns
whenever the context so requires or admits.
27. RECORDS. Purchaser shall not file this Agreement, nor any memorandum
hereof, in any public records without the prior written consent of Seller, and
any such memorandum which is filed without such consent shall be a material
breach of this Agreement by Purchaser.
28. SECTION HEADINGS. The section headings contained in this Agreement are
for convenience only and shall in no way enlarge or limit the scope or meaning
of the various and several sections hereof.
29. CONFIDENTIALITY. Except as hereinafter provided, from and after the
execution of this Agreement, Purchaser and Seller shall keep the terms,
conditions and provisions of this Agreement confidential and neither shall make
any public announcements hereof unless the other first approves of same in
writing, nor shall either disclose the terms, conditions and provisions hereof,
except to persons who "need to know", such as their respective officers,
directors, employees, attorneys, accountants, engineers, surveyors,
consultants, financiers, partners, investors and bankers, and such other third
parties whose assistance is required in connection with the consummation of
<PAGE>
this transaction. Notwithstanding the foregoing, Purchaser or Seller shall
have the absolute and unbridled right to disclose any information regarding the
transaction contemplated by this Agreement required by law or as determined to
be necessary or appropriate by such party or such party's attorneys to satisfy
disclosure and reporting obligations of Purchaser or Seller or its affiliates.
After Closing, Purchaser and Seller shall be free to disclose previously
confidential information in its sole, unfettered discretion.
30. SEVERABILITY. If any term, covenant or condition of this Agreement, or
the application thereof to any person or circumstance, shall to any extent be
invalid or unenforceable, the remainder of this Agreement, or the application
of such term, covenant or condition to other persons or circumstances, shall
not be affected thereby, and each term, covenant or condition of this Agreement
shall be valid and enforceable to the fullest extent permitted by law.
31. CONDITIONS
31.1. CONDITIONS FOR SELLER'S BENEFIT. The obligations of Seller to
consummate the transaction contemplated hereby are subject to the following
conditions, any of which, if not fulfilled as provided in Paragraph 10, shall
entitle Seller, at its option, to terminate the Agreement by written notice to
Purchaser:
(a) The transactions contemplated under this Agreement to be
effected on the Closing Date shall not have been restrained or prohibited by
any injunction or order or judgment rendered by any court or other governmental
agency of competent jurisdiction in an action brought by or on behalf of
Purchaser or any creditor of Purchaser and no proceeding shall have been
instituted and be pending in which any creditor of Purchaser or any other party
acting on behalf of Purchaser seeks to restrain such transactions.
(b) On the Closing Date, Purchaser shall not have filed a petition
for relief under the Federal Bankruptcy Code or any other present or future
federal or state insolvency, bankruptcy or similar law (all of the foregoing
hereinafter collectively called "applicable Bankruptcy Law") nor shall an
involuntary petition for relief have been filed against Purchaser under any
applicable Bankruptcy Law and not been dismissed, nor shall any order for
relief naming Purchaser have been entered under any applicable Bankruptcy Law,
nor shall any composition, rearrangement, extension, reorganization or other
relief of debtors now or hereafter existing have been requested or consented to
by Purchaser.
31.2. CONDITIONS FOR PURCHASER'S BENEFIT. The obligations of
Purchaser to consummate the transaction contemplated hereby are subject to the
following conditions, any of which, if not fulfilled by Closing or as otherwise
provided herein, shall entitle Purchaser (at its option) to terminate this
Agreement by written notice to Seller:
<PAGE>
(a) The transactions contemplated under this Agreement to be
effected on the Closing Date shall not have been restrained or prohibited by
any injunction or order or judgment rendered by any court or other governmental
agency of competent jurisdiction and no proceeding shall have been instituted
and be pending in which any creditor of Seller or any other person seeks to
restrain such transactions or otherwise to attach any of the Property, provided
that any such proceeding or action contemplated by this Paragraph 31.2(a) shall
not be deemed to include any proceeding or action brought by, through or under
Purchaser.
(b) On the Closing Date, there shall be no judicial, quasi-judicial,
administrative or other proceeding pending or threatened, (i) to recover title
to the Property, or any part thereof or any interest therein, (ii) to cancel or
terminate any Tenant Lease, or (iii) to increase substantially ad valorem taxes
theretofore or thereafter assessed against the Property.
(c) On the Closing Date, neither a receiver nor a trustee nor a
custodian shall have been appointed for, or shall have taken possession of, all
or substantially all of the assets of Seller or any of the Property, either in
a proceeding brought by Seller or in a proceeding brought against Seller.
(d) On the Closing Date, Seller shall not have filed a petition for
relief under the Federal Bankruptcy Code or any other present or future federal
or state insolvency, bankruptcy or similar law (all of the foregoing
hereinafter collectively called "applicable Bankruptcy Law") nor shall an
involuntary petition for relief have been filed against Seller under any
applicable Bankruptcy Law and not been dismissed, nor shall nay order for
relief naming Seller have been entered under any applicable Bankruptcy Law, nor
shall any composition, rearrangement, extension, reorganization or other relief
of debtors now or hereafter existing have been requested or consented to by
Seller.
32. NEW LEASES. On or before five (5) business days prior to the expiration
of the Inspection Period, Seller may execute any new lease or modify or renew
any existing lease affecting the Property without Purchaser's consent, provided
the terms of such new lease or modification or extension to existing lease are
commercially reasonable. Seller shall deliver a copy of any such new lease or
existing lease modification or renewal (together with an estimation of the "New
Lease Costs" (as hereinafter defined)), as applicable, to Purchaser within
three (3) business days of execution by the new tenant or existing tenant, as
applicable, but in any event on or before four (4) business days prior to the
expiration of the Inspection Period. In the event Purchaser disapproves of
such new lease or existing lease modification or renewal, within three (3)
business days of the receipt of such new lease or existing lease modification
or renewal, Purchaser shall either (i) terminate this Agreement in accordance
with Paragraph 7 hereof or (ii) direct Seller to not execute such new lease or
existing lease modification or renewal and waive Purchaser's right to terminate
this Agreement in accordance with Paragraph 7. In the event that Purchaser
does not terminate this Agreement as aforesaid, Purchaser shall be responsible
for the costs of all tenant improvements, leasing costs and commissions and
reasonable attorney's fees associated with the negotiation and execution of any
such new lease or existing lease modification or renewal ("New Lease Costs").
Seller shall receive a credit at Closing for any New Lease Cost incurred by
Seller prior to Closing.
<PAGE>
After the date five (5) business days prior to the expiration of the
Inspection Period, Seller shall not execute any new lease or existing lease
modification or renewal affecting the Property without Purchaser's prior
written consent, which shall not be unreasonably withheld. Purchaser's consent
shall be deemed given if Purchaser has not responded to the contrary within
five (5) business days after Seller's written request and Purchaser's receipt
of such new lease or existing lease modification or renewal (together with an
estimation of the New Lease Costs). If approved by Purchaser, a complete copy
of any such new lease or existing lease modification or renewal shall be
delivered to Purchaser within ten (10) days of the full execution thereof. All
New Lease Costs shall be paid by Purchaser and Seller shall receive a credit at
Closing for any New Lease Costs incurred by Seller prior to Closing.
Purchaser acknowledges that there currently exists the unsatisfied tenant
improvement obligations and leasing commissions set forth on Exhibit O attached
hereto. With respect to all tenant improvements and leasing commission
obligations set forth on Exhibit O, Purchaser shall assume the obligations for
the payment thereof and credit Seller at Closing for any amounts paid toward
the aforesaid tenant improvements or leasing commission obligations set forth
on Exhibit O, except for the payment of the tenant improvements and leasing
commissions for the Frontier Lease (defined below). In the event the current
leases for the Property include unsatisfied tenant improvement obligations or
leasing commissions not listed on Exhibit O, Seller shall be solely responsible
for such tenant improvement obligations and leasing commissions.
Purchaser's obligation to acquire the Property is subject to execution by
Seller and Frontier ("Frontier") of a lease pursuant to which Frontier will
lease approximately 130,000 square feet ("Frontier Lease") prior to the end of
the Inspection Period for a term until March 31, 2004 and with minimum
effective base rent as follows: $17.75 per square foot the first lease year,
increased by $.25 per square foot each subsequent lease year. In the event
that (a) Seller and Frontier do not execute the Frontier Lease prior to the end
of the Inspection Period and (b) Purchaser does not terminate this Agreement
pursuant to Paragraph 7.1, Purchaser will not be entitled to terminate this
Agreement by reason of the failure of Seller and Frontier to execute the
Frontier Lease. Seller shall not be liable under the Agreement if Seller and
Frontier do not execute and deliver the Frontier Lease. Seller shall pay the
New Lease Costs (including free rent credits) for the Frontier Lease, for which
Seller shall not be entitled to a credit at Closing. To the extent the New
Lease Costs for the Frontier Lease have not been paid as of the Closing Date,
Seller will provide Purchaser with a credit at the Closing for such unpaid New
Lease Costs of the Frontier Lease.
33. TENANT CERTIFICATE CONDITION TO CLOSING.
33.1. The following terms have been defined as follows for convenience
of reference:
(i) "Tenant Certificate" means a certificate, commonly known as an
estoppel certificate, signed by a tenant with respect to its Lease, either in
the form set forth on Exhibit L hereto or on such other form as is
substantially consistent with the requirements of the tenant's lease for such
certificates;
<PAGE>
(ii) "Seller Tenant Certificate" means a Tenant Certificate signed by
the Seller with respect to a particular Lease for which the Tenant in question
has failed to execute and deliver a Tenant Certificate, in which case the
Seller Tenant Certificate shall be in the form of Exhibit L; provided further
that a Seller Tenant Certificate shall in all cases be limited to Seller's
knowledge as defined in Paragraph 16.1 hereof;
(iii) "Qualification" means any assertion in a Tenant Certificate
(whether in the form of Exhibit L or otherwise) of (i) a claim, counterclaim,
offset or defense against the landlord, (ii) a default on the part of the
landlord, (iii) unpaid credits, allowances or other sums due from the landlord
prior to the date of the estoppel (other than disclosed in Paragraph 12.1
herein or pursuant to a new lease pursuant to Paragraph 32 herein), (iv) an
unfulfilled construction or other obligation on the part of the landlord prior
to the date of estoppel (other than disclosed in Paragraph 12.1 herein or
pursuant to a new lease pursuant to Paragraph 32 herein), or (v) information
which is contrary (in an adverse respect to the landlord) (x) to the
information contained in the rent roll attached hereto as Exhibit M, or (y) the
information pertaining to tenant allowances and concessions and leasing
commissions contained in Paragraph 12.1;
(iii) "Unacceptable Qualification" means any Qualification other
than the following:
(a) a Qualification which is expressly disclosed on the rent
roll attached hereto as Exhibit M or a Qualification relating to non-payment of
April, 1997 or May, 1997 rent, provided the same is not as a result of a
default by Landlord;
(b) a Qualification which is specifically and clearly disclosed
in the Lease of the Tenant in question which was delivered or made available to
Purchaser prior to the expiration of the Inspection Period;
(c) a Qualification expressly disclosed in this Agreement or
the Exhibits hereto; or
(d) a disclosure by a Tenant of physical defects to the portion
of the Property generally known as the common area.
33.2. If a Qualification is not an Unacceptable Qualification, it
shall not affect Purchaser's obligations to close hereunder or give rise to any
liability from Seller to Purchaser.
33.3. Seller shall promptly request a Tenant Certificate in the form
of Exhibit L from all tenants, and shall vigorously, in good faith, pursue the
collection of the same. Seller shall deliver to Purchaser, upon Seller's
receipt thereof, all Tenant Certificates signed by tenants (whether in the form
of Exhibit L or otherwise). Purchaser shall have the right to assist Seller in
obtaining the Tenant Certificates.
<PAGE>
33.4. It shall be a condition to Purchaser's obligations hereunder
(the "Estoppel Condition") that Seller deliver to Purchaser, at or prior to
5:00 p.m. Chicago time on June 13, 1997, either a Tenant Certificate or Seller
Certificate from (i) all tenants occupying 5000 square feet or more of the
gross leasable area of the Property and (ii) such additional tenants with
leases occupying an aggregate of eighty percent (80%) of the occupied leasable
area of the Property. Seller shall be required to deliver to Purchaser all
Tenant Certificates received by Seller from the tenants at the Property.
Notwithstanding the foregoing to the contrary, Seller shall not have satisfied
the Estoppel Condition if any of the Tenant Certificates received by Seller,
disclose Unacceptable Qualifications other than Unacceptable Qualifications
with an "Estoppel Qualification Sum" (hereinafter defined) of less than $50,000
in the aggregate. The "Estoppel Qualification Sum" shall mean the following:
(i) if the claim asserted arises out of a defect which can be cured,
with the expenditure of money on a one time basis, such as a physical defect,
then such sum shall be calculated by a reasonable estimate of the cost to
repair or remediate said defect;
(ii) if the claim asserted affects a continuing obligation of a
tenant under the lease, such as the payment of rent, then the claim shall be
calculated by (a) determining the amount of the claim on a per annum basis, (b)
multiplying said amount by the number of years or partial years said claim
would affect the monetary obligations under the lease and (c) discounting said
product on a present value basis using a discount rate of 10% per annum; and
(iii) if the claim asserted is of a nature with which a monetary
value is not customarily associated, the parties agree to negotiate in good
faith to agree upon an appropriate monetary value for such claim.
If the Unacceptable Qualifications have an Estoppel Qualification Sum of
less than $50,000 in the aggregate, then Seller shall either (x) grant
Purchaser a credit at Closing for an amount equal to the Estoppel Qualification
Sum, or (y) cure all conditions giving rise to an Unacceptable Qualification on
or before the Closing. The determination to perform the covenant contained in
subparagraphs (x) or (y) in the preceding sentence shall be made by Seller.
Provided Seller performs its covenant in this Paragraph 33.4, the disclosure of
Unacceptable Qualifications having an Estoppel Qualification Sum of less than
$50,000 in the aggregate shall not affect Purchaser's obligations to close
hereunder or give rise to any additional liability from Seller to Purchaser.
33.5. If Seller has not satisfied the Estoppel Condition on or before
5:00 p.m. Chicago time on June 13, 1997, then Purchaser shall have the right to
terminate this Agreement by delivering written notice to Seller on or before
5:00 p.m. Chicago time on June 16, 1997. If Purchaser exercises its rights to
terminate in accordance with the terms of this Paragraph 33.5, this Agreement
shall be null and void without further action of the parties and all Earnest
Money theretofore deposited by Purchaser together with any interest accrued
thereon, shall be returned to Purchaser, and neither party shall have any
further liability to the other, except for Purchaser's obligation to indemnify
Seller and restore the Property, as more fully set forth in Paragraph 7 hereof.
<PAGE>
If Purchaser does not terminate this Agreement pursuant to the first sentence
of this Paragraph 33.5, the parties shall proceed to Closing and (i) Purchaser
shall receive a credit at Closing equal to the amount of the Estoppel
Qualification Sum of the Unacceptable Qualifications contained in the Tenant
Certificates, up to an aggregate amount of $50,000 or (ii) Seller shall cure
all conditions giving rise to an Unacceptable Qualification Sum up to an
aggregate amount of $50,000. The determination to perform the covenant
contained in subparagraphs (i) or (ii) in the preceding sentence shall be made
by Seller.
33.6. Notwithstanding anything contained herein to the contrary, if
Seller does not satisfy the Estoppel Condition because the estoppel
qualification sum exceeds $50,000 and Purchaser has terminated the Agreement
pursuant to Paragraph 33.5, Seller shall have the right to vitiate Purchaser's
termination by written notice on or before 5:00 p.m. Chicago time on June 18,
1997 in which case the parties shall proceed to Closing and Seller shall either
(i) grant Purchaser at Closing for an amount to the Estoppel Qualification Sum
or (ii) cure all conditions giving rise to an Unacceptable Qualification on or
before the Closing. The determination to perform the covenant contained in
subparagraphs (i) or (ii) in the preceding sentence shall be made by Seller.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have put their hand and seal as of
the date first set forth above.
PURCHASER:
BINGHAM PARTNERS, L.P., a Delaware
limited partnership
By: ICIG Bingham, LLC, a Delaware limited
liability company, its general partner
By: Insignia Commercial Investments Group,
Inc., a Delaware corporation,
its manager
By: /s/ Jeffery Goldberg
------------------------------
Name: Jeffery Goldberg
------------------------------
Its: Vice President
------------------------------
SELLER:
LABROC III LIMITED PARTNERSHIP,
an Illinois limited partnership
By: Balcor Equity Partners-III, an Illinois
general partnership, its general partner
By: The Balcor Company, a Delaware
corporation, its general partner
By: /s/ James E. Mendelson
--------------------------------
Name: James E. Mendelson
--------------------------------
Its: Authorized Representative
--------------------------------
<PAGE>
[Bingham IV]
Phillip Schechter 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 as set forth in that certain Listing
Agreement, dated November 20, 1996 between Seller and Seller's Broker (the
"Listing Agreement"). Seller's Broker also acknowledges that payment of the
aforesaid fee or commission is conditioned upon the Closing and the receipt of
the Purchase Price by the Seller. Seller's Broker agrees to deliver a receipt
to the Seller at the Closing for the fee or commission due Seller's Broker and
a release, in the appropriate form, stating that no other fees or commissions
are due to it from Seller or Purchaser.
Insignia Mortgage & Investment Company
By: /s/ Phillip Schechter
---------------------------------
Vice President
<PAGE>
Exhibits
A - Legal
B - Personal Property
C - Escrow Agreement
D - Title Commitment
E - Deed
F - Bill of Sale
G - Assignment and Assumption of Intangible Property
H - Service Contracts
I - Assignment and Assumption of Leases and Security Deposits
J - Non-Foreign Affidavit
K - Notice to Tenants
L - Tenant Certificate
M - Rent Roll
N - Recertification Certificate
O - Tenant Improvements and Leasing Commissions
P - Certificate of Rent Roll
<PAGE>
April 7, 1997
Erindale Investors ("Seller")
c/o The Balcor Company
Bannockburn Lake Office Plaza
2355 Waukegan Road
Suite A-200
Bannockburn, Illinois 60015
Attention: Ilona Adams
Near North National Title Corporation ("Escrow Agent")
222 North LaSalle Street
First Floor
Chicago, Illinois 60601
Attention: Lou Cohen
Re: Purchase Agreement dated March 18, 1997 (the "Purchase Agreement")
between Seller and Crosstown Asset Corp. I ("Purchaser") for
Erindale Center, Colorado Springs, Colorado
Ladies and Gentlemen:
Purchaser hereby terminates the Purchase Agreement pursuant to Section 7.1
thereof. Attached is the required Due Diligence Termination Notice. Escrow
Agent is hereby directed to return the earnest money together with all interest
accrued thereon to Purchaser in accordance with the attached wiring
instructions.
Sincerely,
CROSSTOWN ASSET CORP. I, a Delaware corporation
By: /s/ Timothy Scott Clark
-------------------------------
Name: Timothy Scott Clark
-------------------------------
Its: Asst. Vice President
-------------------------------
cc: The Balcor Company
Bannockburn Lake Office Plaza
2355 Waukegan Road
Suite A-200
Bannockburn, Illinois 60015
Attention: James Mendelson
Katten Muchin & Zavis
525 West Monroe Street
Suite 1600
Chicago, Illinois 60661-3693
Attention: Daniel J. Perlman, Esq.
<PAGE>
DUE DILIGENCE TERMINATION NOTICE
April 7, 1997
Crosstown Asset Corp. I, a Delaware corporation, as Purchaser under that
certain Agreement of Sale dated March 18, 1997, providing for the sale of
property located in Colorado Springs, Colorado, and known as Erindale Center
has terminated the Agreement of Sale pursuant to Paragraph 7.1 thereof.
The undersigned demands return of all earnest money deposited under the
Agreement of Sale pursuant to its right therein.
CROSSTOWN ASSET CORP. I, a Delaware corporation
By: /s/ Timothy Scott Clark
--------------------------------
Name: Timothy Scott Clark
--------------------------------
Its: Asst. Vice President
--------------------------------
<PAGE>
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<ARTICLE> 5
<MULTIPLIER> 1000
<S> <C>
<PERIOD-TYPE> 3-MOS
<FISCAL-YEAR-END> DEC-31-1997
<PERIOD-END> MAR-31-1997
<CASH> 15800
<SECURITIES> 0
<RECEIVABLES> 1088
<ALLOWANCES> 0
<INVENTORY> 0
<CURRENT-ASSETS> 17162
<PP&E> 52540
<DEPRECIATION> 25622
<TOTAL-ASSETS> 46056
<CURRENT-LIABILITIES> 870
<BONDS> 0
0
0
<COMMON> 0
<OTHER-SE> 45186
<TOTAL-LIABILITY-AND-EQUITY> 46056
<SALES> 0
<TOTAL-REVENUES> 3366
<CGS> 0
<TOTAL-COSTS> 1417
<OTHER-EXPENSES> 716
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 0
<INCOME-PRETAX> 1233
<INCOME-TAX> 0
<INCOME-CONTINUING> 1233
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 1233
<EPS-PRIMARY> 1.66
<EPS-DILUTED> 1.66
</TABLE>
