SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15 (d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of Report (date of earliest event reported) September 6, 1996
BALCOR GROWTH FUND
A REAL ESTATE INVESTMENT FOR CAPITAL APPRECIATION
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Exact Name of Registrant
Illinois 0-15646
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State or other jurisdiction Commission file number
2355 Waukegan Road
Suite A200
Bannockburn, Illinois 36-3378299
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Address of principal I.R.S. Employer
executive offices Identification
Number
60015
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Zip Code
Registrant's telephone number, including area code:
(847) 267-1600
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ITEM 2. ACQUISITION OR DISPOSITION OF ASSETS
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Post Lake Apartments
In 1986, through two joint ventures, the Partnership obtained approximately a
37% interest in Post Lake Apartments, Cobb County, Georgia. An affiliate of the
General Partner and an entity managed by an affiliate of the General Partner
also hold interests in the property (together with the Partnership, the "Joint
Venture Partners"). The Joint Venture Partners made total capital
contributions of approximately $10,323,000 towards the purchase of the
property, of which the Partnership's share was approximately $3,828,000. The
property was acquired subject to first mortgage financing in the amount of
$16,575,000.
On September 6, 1996, the joint venture which owns the property (the "Joint
Venture") contracted to sell the property for a sale price of $26,600,000 to an
unaffiliated party, RJR Properties, Inc., a Florida corporation. The purchaser
has deposited $500,000 into an escrow account as earnest money. The remaining
portion of the sale price will be payable in cash at closing, scheduled for
September 19, 1996. From the proceeds of the sale, the Joint Venture will pay
the outstanding balance of the first mortgage loan which is expected to be
approximately $15,036,000 at closing, approximately $353,000 as a prepayment
penalty and $266,000 to an unaffiliated party as a brokerage commission. The
Joint Venture will receive the remaining proceeds of approximately $10,945,000,
less closing costs, of which the Partnership's share is expected to be
$4,059,000, less the Partnership's share of closing costs. Neither the General
Partner nor any affiliate will receive a brokerage commission in connection
with the sale of the property. The General Partner will be reimbursed by the
Joint Venture for actual expenses incurred in connection with the sale.
The 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 5. OTHER EVENTS
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Redwood Shores Apartments
The Partnership holds, through two joint ventures, an interest in Redwood
Shores Apartments, Redwood City, California. As previously reported, on June
12, 1996, the joint venture which owns the property contracted to sell the
property for a sale price of $37,000,000 to an unaffiliated party, Security
Capital Pacific Trust, a Maryland real estate investment trust. The purchaser
has exercised its option under the agreement of sale and extended the closing
to September 23, 1996.
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ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS
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(A) FINANCIAL STATEMENTS AND EXHIBITS:
None
(B) PRO FORMA FINANCIAL INFORMATION:
None
(C) EXHIBITS:
(2) Agreement of Sale and attachment thereto relating to the sale
of Post Lake Apartments, Cobb County, Georgia.
(99) Letter Agreements dated July 12, 1996 and August 9, 1996 related
to the sale of Redwood Shores Apartments, Redwood City,
California.
No information is required under Items 1, 3, 4, 6 and 8 and these items
have, therefore, been omitted.
<PAGE>
Signature
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Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this Report to be signed on its behalf by the
undersigned hereunto duly authorized.
BALCOR GROWTH FUND
A REAL ESTATE INVESTMENT FOR CAPITAL
APPRECIATION
By: Balcor Partners-XX, an Illinois general
partnership, its general partner
By: The Balcor Company, a Delaware corporation,
a partner
By: /s/ Jerry M. Ogle
------------------------------------
Jerry M. Ogle, Vice President
and Secretary
Dated: September 18, 1996
<PAGE>
AGREEMENT OF SALE
THIS AGREEMENT OF SALE (this "Agreement"), is entered into as of the 6th
day of September, 1996, by and between RJ PROPERTIES, INC., a Florida
corporation ("Purchaser"), and ATLANTA LAKES JOINT VENTURE, an Illinois general
partnership ("Seller").
W I T N E S S E T H:
1. PURCHASE AND SALE. Purchaser agrees to purchase and Seller agrees to sell
at the price of Twenty-Six Million Six Hundred Thousand and No/100 Dollars
($26,600,000.00) (the "Purchase Price"), that certain property commonly known
as Post Lake Apartments, Smyrna, Georgia legally described on Exhibit A
attached hereto (the "Property"). Included in the Purchase Price is all of the
personal property set forth on Exhibit B attached hereto (the "Personal
Property").
2. PURCHASE PRICE. The Purchase Price shall be paid by Purchaser as follows:
2.1. Upon the execution of this Agreement, the sum of Five Hundred
Thousand and No/100 Dollars ($500,000.00) (the "Initial Earnest Money") to
Chicago Title Insurance Company ("Escrow Agent") to be held in escrow by and in
accordance with the provisions of the Escrow Agreement ("Escrow Agreement")
attached hereto as Exhibit C; and
2.2. On the "Closing Date" (hereinafter defined), the balance of the
Purchase Price, adjusted in accordance with the prorations, by federally wired
"immediately available" funds, on or before 11:00 a.m Chicago time. At
closing, Purchaser shall receive a credit against the Purchase Price in the
amount of $50,000.00 in full satisfaction of any and all claims with regard to
any (i) fire code violations alleged or in existence relating to the Property
or (ii) with respect to any signs relating to the Property or the business
conducted thereon not located on the Property.
Except as expressly set forth herein or in the event of Seller's
default hereunder, upon expiration of the Inspection Period, all of the Earnest
Money and the interest thereon shall be nonrefundable.
3. TITLE COMMITMENT AND SURVEY.
3.1. Attached hereto as Exhibit D is a copy of a pro forma owner's ALTA
(1992 Form B) standard title insurance policy to be issued by Chicago Title
Insurance Company (hereinafter referred to as "Title Insurer") for the Property
(the "Title Commitment"). For purposes of this Agreement, "Permitted
Exceptions" shall mean: (a) general real estate taxes and assessments,
association assessments, special district taxes and related charges not yet due
and payable; (b) possible set back line violations shown on the Existing Survey
(hereinafter defined) to the extent that Title Insurer will affirmatively
insure Purchaser for violations and encroachments as shown thereon and as
described in Exhibit D hereto, and to the extent that such violations and
encroachments do not violate applicable zoning for the Property; (c) matters
caused by the actions of Purchaser; and (d) the title exceptions set forth in
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Schedule B of the Title Commitment attached hereto as Exhibit D as Numbers 2
through 15(k) inclusive, to the extent that same affect the Property. All
other exceptions to title shall be referred to as "Unpermitted Exceptions".
Except as set forth in the Deed (hereinafter defined) to be delivered to
Purchaser, 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 only to Permitted Exceptions and
Unpermitted Exceptions waived by Purchaser (the "Title Policy"). Subject to
Paragraph 4 hereof, Purchaser shall pay for all of the costs of the Title
Commitment and Title Policy, including the cost of any endorsements to, or
extended coverage on, the Title Policy.
3.2. Purchaser has received a survey of the Property prepared by Planners
and Engineers Collaborative (the "Existing Survey"). Purchaser shall
immediately order an updated survey (the "Updated Survey") and shall pay for
all of the costs of updating the Existing Survey and shall obtain the Updated
Survey within twenty (20) days after the date hereof. Purchaser shall deliver
a copy of the Updated Survey to Seller.
3.3. The obligation of Purchaser to pay various costs set forth in
Paragraphs 3.1 and 3.2 shall survive the termination of this Agreement.
4. PAYMENT OF CLOSING COSTS. Seller shall pay for any and all release fees
and costs necessary to release of record any liens or encumbrances affecting
the Property which were created solely by or at the express written direction
of Seller (and not by any agent of Seller) and which are Unpermitted
Exceptions, and all of the costs of the transfer taxes, if any, to be paid with
reference to the "Deed" (hereinafter defined). In addition to the costs set
forth in Paragraphs 3.1 and 3.2, Purchaser shall pay all other closing costs,
including all other stamps, intangible, recording and surtax imposed by law
with reference to any other sale documents delivered in connection with the
sale of the Property to Purchaser and, except for those release fees and costs
of Title Insurer which are specifically the obligation of Seller as set forth
in this Agreement, all other charges of the Title Insurer in connection with
this transaction. Each party shall pay its respective attorneys' fees and any
other costs and expenses actually incurred by it to comply with this Agreement.
The obligations of the parties to pay various costs set forth in this Paragraph
4 shall survive the termination of this Agreement.
5. CONDITION OF TITLE.
5.1. If, prior to "Closing" (as hereinafter defined), the Title Commitment
or the Updated Survey, or any down-date thereto, discloses any Unpermitted
Exception, Seller shall have thirty (30) days from the date of the Title
Commitment or the Updated Survey or the date-down thereto, as applicable, at
Seller's expense, to (i) bond over, cure and/or have any Unpermitted Exceptions
which, in the aggregate, do not exceed $25,000.00, removed from the Title
Commitment or to have the Title Insurer commit to insure against loss or damage
that may be occasioned by such Unpermitted Exceptions, or (ii) have the right,
but not the obligation, to bond over, cure and/or have any Unpermitted
<PAGE>
Exceptions which, in the aggregate, equal or exceed $25,000.00, removed from
the Title Commitment or to have the Title Insurer commit to insure against loss
or damage that may be occasioned by such Unpermitted Exceptions. In such
event, the time of Closing shall be delayed, if necessary, to give effect to
said aforementioned time periods. If Seller fails to cure or have said
Unpermitted Exception removed or have the Title Insurer commit to insure as
specified above within said thirty (30) day period or if Seller elects not to
exercise its rights under (ii) in the preceding sentence, Purchaser may
terminate this Agreement upon notice to Seller within five (5) days after the
expiration of said thirty (30) day period or, in the alternative, within the
same time period, Purchaser shall have the right to sue Seller for specific
performance of Seller's obligation to deliver title in accordance with the
terms hereof, but shall have no other remedy. 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; provided,
however, that with respect to any monetary charge, deed of trust, deed to
secure debt, mortgage or lien, or any other Unpermitted Exceptions arising in
breach of Seller's covenants hereunder, but only if created solely by, or at
the express written direction of, or with the prior knowledge (as defined in
Section 16.1 of this Agreement) of, Seller (and not by any agent of Seller) and
which are Unpermitted Exceptions, Purchaser will be entitled to cure and remove
such Unpermitted Exceptions, and Purchaser's reasonable costs and expenses
incurred in connection with such cure shall be deducted from and credited
against the Purchase Price. If Purchaser terminates this Agreement or does not
commence a suit for specific performance 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 7.1 and the obligation of the parties to
pay various costs as set forth in Paragraphs 3.1, 3.2 and 4 (collectively, the
"Surviving Obligations").
5.2. Seller agrees to convey fee simple title to the Property to Purchaser
by limited warranty deed (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
<PAGE>
or payable to Seller on account of such fire or casualty plus the amount of any
deductible or self-retention amount payable in connection therewith. Seller
shall promptly notify Purchaser in writing of any such fire or other casualty
and Seller's determination of the cost to repair the damage caused thereby. In
the event of damage to the Property by fire or other casualty prior to the
Closing Date, repair of which would cost in excess of $100,000.00 (as
determined by Seller in good faith), then this Agreement may be terminated at
the option of Purchaser, which option shall be exercised, if at all, by
Purchaser's written notice thereof to Seller within five (5) business days
after Purchaser receives written notice of such fire or other casualty and
Seller's determination of the amount of such damages, and upon the exercise of
such option by Purchaser this Agreement shall become null and void, the Earnest
Money deposited by Purchaser shall be returned to Purchaser together with
interest thereon, and neither party shall have any further liability or
obligations hereunder, except with regard to the Surviving Obligations. 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 plus the amount of any deductible or
self-retention amount payable in connection therewith.
6.2. If prior to the Closing Date all of the Property is taken by
condemnation or eminent domain this Agreement will be automatically terminated,
the Earnest Money, together with all interest accrued thereon, will be returned
to Purchaser, and thereupon this Agreement will be null and void and of no
further force or effect, and neither Purchaser nor Seller will have any further
rights, duties, liabilities and obligations to the other by reason thereof,
except with regard to the Surviving Obligations. If between the date of this
Agreement and the Closing Date, any condemnation or eminent domain proceedings
are initiated, or Seller has received written notice of any such proceeding
being threatened, 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. If prior to the Closing Date
there is in Purchaser's reasonable judgment a threat that (a) all of the
Property will be taken by condemnation or eminent domain, or (b) the taking of
any part of the Property shall: (i) materially impair access to the Property;
(ii) cause any material non-compliance with any applicable law, ordinance, rule
or regulation of any federal, state or local authority or governmental agencies
having jurisdiction over the Property or any portion thereof; or (iii)
materially and adversely impair the use of the Property as it is currently
being operated; or (c) land lying in the bed of any street, road, highway or
avenue, open or proposed, in front of or adjoining all or any part of the
Property may be taken, or (d) that there will be a change of grade of any such
street, road, highway or avenue, then Purchaser may, at its option, terminate
this Agreement, in which event the Earnest Money, together with all interest
accrued thereon, will be returned to Purchaser and thereupon this Agreement
will be null and void and of no further force or effect, and neither Purchaser
nor Seller will have any further rights, duties, liabilities and obligations to
the other by reason thereof, except with regard to the Surviving Obligations.
If this Agreement is not terminated, Purchaser will accept title to the
<PAGE>
Property subject to the taking or change of grade, in which event at the
Closing Seller will assign to Purchaser all of its right, title and interest in
and to the proceeds of any such award or payment and any moneys therefore
received by Seller in connection with such taking or change in grade will be
paid over to Purchaser.
6.3. Purchaser shall notify in writing Seller, within five (5) business
days after Purchaser's receipt of Seller's notice pursuant to Paragraph 6.2,
whether Purchaser elects to exercise its right to terminate this Agreement.
Closing shall be delayed, if necessary, until Purchaser makes such election.
If Purchaser fails to make an election within such five (5) business day
period, Purchaser shall be deemed to have elected to proceed with Closing.
7. INSPECTION AND AS-IS CONDITION.
7.1. Purchaser acknowledges that during the period commencing on June 28,
1996 and ending at 5:00 p.m. Chicago time on September 3, 1996 (said period
being herein referred to as the "Inspection Period"), Purchaser and the agents,
engineers, employees, contractors and surveyors retained by Purchaser were
given the right to enter upon the Property 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 deemed reasonably necessary and
appropriate. In connection with Purchaser's review of the Property, Seller
delivered to Purchaser copies of the current rent roll for the Property, the
most recent tax and insurance bills, utility account numbers, service
contracts, and unaudited year end 1994, 1995 and year-to-date 1996 operating
statements, list of all resident concessions, corporate units and two-year
leases and payroll schedule for onsite employees. After the expiration of the
Inspection Period, Purchaser, upon reasonable notice, will have the right to
make continuing inspections of the Property until Closing to ascertain the
Property's conditions and operations.
All of the foregoing tests, investigations and studies conducted under
this Paragraph 7.1 by Purchaser were at Purchaser's sole cost and expense and
Purchaser shall restore the Property to the condition existing prior to the
performance of such tests or investigations by or on behalf of Purchaser.
Purchaser shall defend, indemnify and hold Seller and any affiliate, parent of
Seller, and all shareholders, employees, officers and directors of Seller or
Seller's affiliate or parent (hereinafter collectively referred to as
"Affiliate of Seller") harmless from any and all liability, cost and expense
(including without limitation, reasonable attorney's fees, court costs and
costs of appeal) suffered or incurred by Seller or Affiliates of Seller for
injury to persons or property caused by Purchaser's investigations and
inspection of the Property. Purchaser shall undertake its obligation to defend
set forth in the preceding sentence using attorneys selected by Seller, in
Seller's reasonable discretion.
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.
<PAGE>
7.2. Except as otherwise specifically set forth in this Agreement, 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,
except to the extent set forth in Section 16.2. Seller has advised Purchaser
that certain alleged fire code violations exist with regard to the Property.
Purchaser acknowledges receipt of such notice, that there has been an
adjustment made in the Purchase Price with regard thereto and that it is
purchasing the Property subject thereto. The Purchaser, any affiliate, parent
of Purchaser, all shareholders, employees, officers and directors of Purchaser
or Purchaser's affiliate or parent, and their respective successors and assigns
("Purchaser Group"), except with regard to a breach of the representation
contained in Section 16.2(m), hereby covenant not to sue the Seller or any
Affiliate of the Seller for, and shall not enforce any liability or obligation
of the Seller or Affiliates of the Seller for, and hereby agree not to bring,
assert or maintain any action or claim for contribution, cost recovery or
otherwise, including for injunctive relief, relating directly or indirectly to
the violation of Environmental Laws regarding the existence of asbestos or
Hazardous Materials on, or environmental conditions of, the Property, whether
known or unknown, by any action or proceeding wherein a money or other personal
judgment, including injunctive relief, is sought by Purchaser Group against the
Seller or Affiliates of the Seller; provided, however, that the Purchaser Group
and their successors or assigns may bring any action or proceeding to enforce
and realize rights and claims under such Environmental Laws for contribution,
cost recovery or otherwise against third parties, including but not limited to
Seller's predecessors' in title to the Property and in such action name Seller
and Seller's Affiliates in such action or proceeding to the extent they, or any
of them, are necessary parties to such action or proceeding; further provided,
however, that any judgment in any such action or proceeding in favor of
Purchaser Group or their successors or assigns shall not be enforced by
Purchaser Group or any such successor or assign against the Seller or Seller's
Affiliates. As used herein, "Environmental Laws" means all federal, state and
<PAGE>
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. e 9601 et seq.,
the Resource Conservation and Recovery Act of 1976 ("RCRA"), 42 U.S.C.
Section 6901 et seq., the Emergency Planning and Community Right-to-Know Act
("Right-to-Know Act"), 42 U.S.C. Section 11001 et seq., the Clean Air Act
("CAA"), 42 U.S.C. Section 7401 et seq., the Federal Water Pollution Control
Act ("Clean Water Act"), 33 U.S.C. Section 1251 et seq., the Toxic Substances
Control Act ("TSCA"), 15 U.S.C. Section 2601 et seq., the Safe Drinking Water
Act ("Safe Drinking Water Act"), 42 U.S.C. Section 300f et seq., the Atomic
Energy Act ("AEA"), 42 U.S.C. Section 2011 et seq., the Occupational Safety and
Health Act ("OSHA"), 29 U.S.C. Section 651 et seq., and the Hazardous Materials
Transportation Act (the "Transportation Act"), 49 U.S.C. Section 1802 et seq.
As used herein, "Hazardous Materials" means: (1) "hazardous substances," as
defined by CERCLA; (2) "hazardous wastes," as defined by RCRA; (3) any
radioactive material including, without limitation, any source, special nuclear
or by-product material, as defined by AEA; (4) asbestos in any form or
condition; (5) polychlorinated biphenyls; and (6) any other material, substance
or waste to which liability or standards of conduct may be imposed under any
Environmental Laws. 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 and Purchaser hereby
acknowledge that such information has been provided to Purchaser at Purchaser's
request solely as illustrative material, Seller represents only that such
information is the same information provided to Seller by the property manager
and prepared by the property manager and except as specifically set forth in
Section 16.2(j), makes no representation or warranty that such material is
complete or accurate or that Purchaser will achieve similar financial or other
results with respect to the operations of the Property, it being acknowledged
by Purchaser that Seller's operation of the Property and allocations of
revenues or expenses may be vastly different than Purchaser may be able to
attain. Purchaser acknowledges that it is a sophisticated and experienced
purchaser of real estate and further that Purchaser has relied upon its own
investigation and inquiry with respect to the operation of the Property and,
except with regard to a breach of the representation contained in Section
16.2(j), releases and covenants not to sue Seller and the Affiliates of Seller
from or with regard to 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.
7.4. Seller has provided to Purchaser the following existing report:
Phase I Environmental Site Assessment, dated May 15, 1996 prepared by EMG
("Existing Report"). Seller makes no representation or warranty concerning
<PAGE>
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 or
before September 25, 1996 (the "Closing Date"), at the office of Roberts, Isaf
& Summers, Atlanta, Georgia, at which time Seller shall deliver possession of
the Property to Purchaser. This transaction shall be closed through an escrow
with Title Insurer, in accordance with the general provisions of the usual and
customary form of deed and money escrow for similar transactions in Georgia 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, as well as a so-called Gap Indemnity. All closing and escrow
fees shall be paid by Purchaser.
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 in
writing by Purchaser, together with the transfer declaration therefor;
9.2.2. a limited warranty bill of sale conveying the Personal
Property (in the form of Exhibit F attached hereto);
9.2.3. assignment and assumption of intangible property (in the
form attached hereto as Exhibit G), including, without limitation, the service
contracts listed in Exhibit H;
9.2.4. an assignment and assumption of leases and tenant deposits,
including all refundable security, cleaning, pet and redecorating fees and
deposits received by Seller under the terms of any leases outstanding at
Closing and not forfeited to Seller, whether or not previously included in
income (collectively, the "Tenant Deposits") (in the form attached hereto as
Exhibit I);
<PAGE>
9.2.5. non-foreign affidavit (in the form of Exhibit J attached
hereto);
9.2.6. original, and/or copies of, leases affecting the Property
in Seller's possession, to 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. an updated rent roll, as to which Seller will make a good
faith effort to obtain a certification thereto from the property manager to the
effect that such rent roll is true, complete and correct; and
9.2.12. certified copies of resolutions authorizing the entry into
of this Agreement by Seller and the sale and conveyance by Seller to Purchaser
of the Property, including certificates of existence for Seller in the state of
its creation and in the State of Georgia.
<PAGE>
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 THE SURVIVING OBLIGATIONS. 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 HEREUNDER, PURCHASER'S SOLE REMEDY SHALL BE THE RETURN ON DEMAND 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 THE SURVIVING
OBLIGATIONS. NOTWITHSTANDING ANYTHING CONTAINED HEREIN TO THE CONTRARY, IF
SELLER'S DEFAULT IS ITS WILLFUL REFUSAL TO DELIVER TITLE IN ACCORDANCE WITH THE
TERMS HEREOF, THEN PURCHASER WILL BE ENTITLED TO SUE FOR SPECIFIC PERFORMANCE,
BUT SHALL HAVE NO OTHER REMEDY.
12. PRORATIONS.
12.1. Rents (exclusive of delinquent rents, but including prepaid
rents); 100% of refundable Tenant Deposits (which refundable Tenant Deposits
will be assigned to and assumed by Purchaser and credited to Purchaser at
Closing); 50% of Non-Refundable Tenant Deposits; water and other utility
charges; fuels; operating expenses; real and personal property taxes prorated
on a "net" basis (i.e. adjusted for all tenants' liability, if any, for such
items); operating expenses which are reimbursable by the tenants for the period
prior to the Closing Date less any amount previously paid by the Tenants shall
be credited to Seller; and other similar items shall be adjusted ratably as of
11:59 p.m. on the Closing Date, and credited against the balance of the cash
due at Closing. Assessments payable in installments which are due subsequent
to the Closing Date shall be paid by Purchaser. For purposes of this
paragraph, "Non-Refundable Tenant Deposits" shall mean all non-refundable
deposits and fees, including pet fees or deposits, redecorating and move out
fees (but not including application fees) made by tenants with respect to
executory leases shown on the rent roll delivered to Purchaser at closing,
whether or not such deposits have previously been included as income by Seller.
If the amount of any of the items to be prorated is not then ascertainable, the
adjustments thereof shall be on the basis of the most recent ascertainable
data. Should any proration prove to be inaccurate upon receipt of the actual
bills for the Property, then either Seller or Purchaser may demand within
thirty (30) days after the Closing Date a payment from the other party
correcting such malapportionment, at which time the prorations shall be final.
12.2. Rents collected after Closing from each tenant ("Post-Closing
Receipts") shall be successively applied to the payment of:
(i) Rents due and payable in the month in which payment is made;
(ii) Rents due and payable in the month in which Closing occurs;
<PAGE>
(iii) Rents due and payable in months preceding the month in
which Closing occurred, up to and including the month in which payment is made;
and
(iv) Rents due and payable in months succeeding the month in which
Closing occurs, other than applied above, if any. Purchaser shall collect and
remit to Seller its prorated share of any delinquent rents paid to Purchaser
after Closing, but Purchaser does not guarantee any such collections.
Purchaser shall use its best efforts to collect all amounts which, upon
collection, would constitute Post-Closing Receipts hereunder. Within one
hundred twenty (120) days after the Closing Date, Purchaser shall deliver to
Seller a reconciliation statement of Post-Closing Receipts through the first
ninety (90) days after the Closing Date. Upon the delivery of the Post-Closing
Receipts reconciliation, Purchaser shall deliver to Seller any Post-Closing
Receipts owing to Seller and not previously delivered to Seller in accordance
with the terms hereof. Seller retains the right to conduct an audit, at
reasonable times and upon reasonable notice, of Purchaser's books and records
to verify the accuracy of the Post-Closing Receipts reconciliation statement
and if the audit verifies additional funds owing to Seller, Purchaser shall pay
to Seller said additional Post-Closing Receipts and the cost of performing
Seller's audit. Paragraph 12.2 of this Agreement shall survive the Closing and
the delivery and recording of the deed.
13. RECORDING. Neither this Agreement nor a memorandum thereof shall be
recorded and the act of recording by Purchaser shall be an act of default
hereunder by Purchaser and subject to the provisions of Paragraph 10 hereof.
14. ASSIGNMENT. This Agreement is not assignable by Seller. This Agreement
and the rights, duties, interests and obligations of Purchaser hereunder may be
assigned by Purchaser to (i) any general or limited partnership, trust,
corporation or limited liability company (including a partnership, trust,
corporation or limited liability company to be formed hereafter) of which RJ
Properties, Inc. or Raymond James Realty Advisors, Inc. is a general partner,
trustee, shareholder, managing member or manager, or (ii) a trust of which an
affiliate controlled by RJ Properties, Inc. is asset manager. If such
assignment is made, then the sale of the Property contemplated by this
agreement will be consummated in the name of any such assignee, provided,
however, after any such assignment, assignor shall remain liable, jointly and
severally, with assignee for the performance and discharge of all the
obligations and liabilities of Purchaser hereunder. If this Agreement is
assigned to a trust, each document signed by the trust or trustee thereof to
effectuate the transactions contemplated by this Agreement shall contain the
following or similar language acceptable to Purchaser's counsel:
"All obligations required to be performed by, and liability of,
Purchaser under the [add reference to the document being signed], and each
other document evidencing the [Transaction], are the obligations of the
Purchaser trust only, and neither Purchaser's trustee nor any beneficiary of
Purchaser shall have any personal liability therefor. Seller agrees that it
will make no claim against Purchaser's trustee of any beneficiary and will seek
recourse only against the assets of Purchaser trust."
<PAGE>
An assignment or transfer of, or attempt to assign or transfer, Purchaser's
interest in this Agreement other than as expressly set forth in this Paragraph
shall be an act of default hereunder by Purchaser and subject to the provisions
of Paragraph 10 hereof.
15. BROKER. The parties hereto represent and warrant that no broker
commission or finder fee is due and payable in connection with this transaction
other than to Apartment Realty Advisors (to be paid by Seller). Seller's
commission to Apartment Realty Advisors 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 Apartment Realty Advisors. 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. Seller and Purchaser acknowledge that some or all of the
officers of Purchaser are licensed as real estate brokers and/or real estate
salesmen under the laws of the State of Georgia. In such capacities, such
officers are acting as principals and not as brokers or salesmen in this
transaction, which disclosure is made pursuant to Rule 520-1-08 of the Rules
and Substantive Regulations of the Georgia Real Estate Commission.
16. REPRESENTATIONS AND WARRANTIES.
16.1. Any reference herein to Seller's knowledge or notice of any
matter or thing shall only mean such knowledge or notice that has actually been
received by Dan Charleston and Michael Becker (together referred to as 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, property manager or employees shall not be imputed to Seller,
any general partner of Seller, the subpartners of the general partners of
Seller or Seller's Representative.
16.2. Subject to the limitations set forth in Paragraph 16.1, Seller
hereby makes the following representations and warranties, which
representations and warranties are made only to Seller's knowledge and which
shall survive Closing for a period ending December 27, 1996, at which time such
representations and warranties (and any cause of action resulting from a breach
thereof not then in litigation) shall terminate:
(a) Title. Seller has fee simple title to the Real Estate and owns the
Personal Property, and has the right, power and authority to enter into this
Agreement and the right, power and authority to convey the Property in
accordance with the terms and conditions of this Agreement.
<PAGE>
(b) Authority: Seller: (i) is a general partnership duly organized,
validly existing and in good standing under the laws of the State of Illinois
and is qualified to do business in the State of Georgia; (ii) is duly bound by
the actions and execution hereof by the authorized signatory who has executed
this Agreement for and on behalf of Seller; and (iii) has the authority and
power to enter into this Agreement and to consummate the transaction
contemplated herein. Atlanta Lakes, Inc., an Illinois corporation, and The
Balcor Company, a Delaware corporation, as a partner of Balcor Partners$XX, an
Illinois general partnership, as general partner of Atlanta Lakes Investors, an
Illinois limited partnership, the sole general partners of Seller, (i) are
qualified to act as such; and (ii) have the authority to execute and deliver
this Agreement and all documents in connection with the purchase and sale of
the Property as contemplated herein and to convey the Property. There are no
other general partners of Seller.
(c) Conflicts. The execution and entry into this Agreement, the
execution and delivery of the documents and instruments to be executed and
delivered by Seller on the Closing Date and the performance by Seller of
Seller's duties and obligations under this Agreement and of all other acts
necessary and appropriate for the full consummation of the purchase and sale of
the Property as contemplated herein, are consistent with and not in violation
of, and will not create any adverse condition under, any contract, agreement or
other instrument to which Seller is a party, or any judicial order or judgment
of any nature by which Seller is bound. On the Closing Date, all necessary and
appropriate action will have been taken by Seller authorizing and approving the
execution of and entry into this Agreement, the execution and delivery by
Seller of the documents and instruments to be executed by Seller on the Closing
Date and the performance by Seller of Seller's duties and obligations under
this Agreement and of all other acts necessary and appropriate for the
consummation of the purchase and sale of the Property as contemplated herein.
(d) Condemnation. Seller has received no written notice of any pending
action by any governmental authority or agency having the power of eminent
domain, which might result in any part of the Property being taken by
condemnation or conveyed in lieu thereof. Seller will, promptly upon receiving
any such notice, give Purchaser written notice thereof.
(e) Litigation. Except for routine rent collection matters arising under
any tenant leases (which in the aggregate are not material), or as otherwise
disclosed in writing to Purchaser, Seller has no knowledge that there is any
action, suit or proceeding pending by or against or affecting Seller or the
Property which does or will involve or affect the Property, the title thereto
or the operation thereof.
(f) Assessments and Taxes. True and correct copies of all real and
personal property tax bills for the year 1996, and copies of all bills for real
and personal property taxes which to Seller's knowledge have not been paid,
have been or will be delivered to Purchaser.
<PAGE>
(g) No Violations. Except with regard to certain alleged fire code
violations which have been disclosed to Purchaser, Seller has received no
written notice that any municipality or governmental or quasi-Governmental
Authority has determined that there are any violations of law, municipal or
county ordinances or any legal requirements with respect to the use, occupancy
and construction of the Property, including fire, health, environmental,
building and safety codes and requirements, relating and/or applicable to the
ownership, use and operation of the Property as a residential apartment
complex. In the event Seller receives notice prior to the Closing Date of any
such violations affecting the Property, Seller shall promptly notify Purchaser
thereof.
(h) Employees. Seller has no employees on the site of the Property
engaged in the management, leasing, operation or maintenance of the Property.
(i) Service Contracts. The Service Contracts as set forth and scheduled
on Exhibit H are the only management, maintenance, service or other contracts
and agreements which affect the use, operation, ownership or management of the
Property (other than tenant leases). There is no union contract to which
Seller is a party affecting the Property or the employees thereof.
(j) Rent Roll. To Seller's knowledge the information set forth on the
rent roll attached hereto as Exhibit M (the "Rent Roll") is current, true and
accurate in all material respects with regard to the information for each
apartment. Seller will cause to be provided to Purchaser a separate report of
current delinquencies and of deposits, if not reflected on the Rent Roll, which
report(s) will be attached to and become a part of the Rent Roll.
(k) Foreign Ownership. Seller is not a "foreign person" as that term is
defined in the U.S. Internal Revenue Code of 1986, as amended, and the
regulations promulgated pursuant thereto, and Purchaser has no obligation under
Section 1445 of the U.S. Internal Revenue Code of 1986, as amended, to withhold
and pay over to the U.S. Internal Revenue Service any part of the "amount
realized" by Seller in the transaction contemplated hereby (as such term is
defined in the regulations issued under said Section 1445).
(l) Prior Options. No unexercised options or rights of first refusal
have been granted by Seller to purchase any interest in the Property, or any
part thereof.
(m) Hazardous Substances. Except as set forth in any environmental
reports delivered to Purchaser pursuant to Subsection 7.4 hereof, Seller has
received no written notice of the existence, deposit, storage, removal, burial
or discharge of any Hazardous Material at, upon, under or within the Property,
in an amount which would, as of the date hereof, give rise to any
"Environmental Compliance Cost". For purposes of this Paragraph,
"Environmental Compliance Cost" means any out of pocket cost, fee or expense
incurred to satisfy any requirement of, or to bring the Property into
compliance with, all Environmental Laws.
<PAGE>
(n) Liquidation. Seller agrees that it will retain $250,000 of the
proceeds of the sale of the Property and will not liquidate or distribute such
portion of the proceeds of the sale of the Property to its partners prior to
December 27, 1996.
16.3. Purchaser hereby represents and warrants that:
(a) Authority. Purchaser (i) is a corporation, or trust, duly organized
and validly existing under the laws of the State of Florida, and is duly
authorized and qualified to do all things required of it under this Agreement;
(ii) has authority and power to enter into this Agreement and consummate the
transaction contemplated herein; and (iii) has the authority to execute and
deliver this Agreement and all documents in connection with the purchase and
sale of the Property as contemplated herein.
(b) Conflicts. The execution and entry into this Agreement, the
execution and delivery of the documents and instruments to be executed and
delivered by Purchaser on the Closing Date and the performance by Purchaser of
Purchaser's duties and obligations under this Agreement and of all other acts
necessary and appropriate for the full consummation of the purchase and sale of
the Property as contemplated herein, are consistent with and not in violation
of, and will not create any adverse condition under, any contract, agreement or
other instrument to which Purchaser is a party, or any judicial order or
judgment of any nature by which Purchaser is bound. On the Closing Date, all
necessary and appropriate action will have been taken by Purchaser authorizing
and approving the execution of and entry into this Agreement, the execution and
delivery by Purchaser of the documents and instruments to be executed by
Purchaser on the Closing Date and the performance by Purchaser of Purchaser's
duties and obligations under this Agreement and of all other acts necessary and
appropriate for the consummation of the purchase and sale of the Property as
contemplated herein.
17. RENTAL ACTIVITY, OPERATIONS AND MAINTENANCE PRIOR TO CLOSING.
17.1. So long as this Agreement remains in effect, Seller will not
sell, assign, convey (absolutely or as security), grant a security interest in
or otherwise encumber or dispose of, the Property (or any interest or estate
therein), except for operating and maintaining the Property in the ordinary
course of business as set forth in Section 17.2, enter into any contract or
agreement regarding any of the foregoing or change the property manager;
provided, however, that Seller may, in its reasonable discretion, enter into a
contract or agreement regarding the Property if an emergency or other
extraordinary condition makes it appropriate to do so.
17.2. Seller shall use its best efforts to cause the property manager
to operate and maintain the Property from and after the date hereof until
Closing in the ordinary course of business consistent with prior practices,
including routine maintenance and repairs of the Property (provided that such
maintenance and repair obligations will not include extraordinary capital
expenditures).
<PAGE>
17.3. Seller shall not enter into any additional service contracts or
other similar agreements without the prior consent of Purchaser, except those
deemed reasonably necessary by Seller and which are cancelable on thirty (30)
days' notice at no cost or expense to Purchaser or Seller.
17.4. All vacant apartment units at Closing, other than apartment
units vacated within ten (10) business days prior to Closing, must be
rent-ready in accordance with Seller's ordinary course of business, consistent
with Seller's prior practices.
17.5. All contracts and agreements of Seller with the property manager
will be terminated effective the Closing Date.
18. LIMITATION OF LIABILITY.
18.1. Subject only to Seller's limited liability after the Closing as
set forth in Section 18.2, 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 nor shall Purchaser have the right to receive
any judgment in or otherwise recover against the assets of the aforesaid 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 or to receive any judgment in or
otherwise recover against the assets of Seller, the Affiliates of Seller or
their respective beneficiaries, affiliates, shareholders, partners, officers,
agents or employees, heirs, successors or assigns, except to the extent
necessary to sue Seller solely for specific performance of Seller's obligation
to deliver title in accordance with the terms hereof in the event of a default
by Seller hereunder prior to closing, but shall commence or pursue no other
remedy.
18.2. Notwithstanding anything contained herein to the contrary, after
the Closing Seller, and Seller only, shall be liable only for breaches of
representations and warranties contained in Section 16.2 and for the Surviving
Obligations; provided, however, Purchaser hereby agrees that its sole remedy
for Seller's default prior to Closing is for a return of its Earnest Money and
interest thereon or specific performance as set forth in Section 11 and that
after the Closing or to the extent the provisions of Section 11 are held not
enforceable, the maximum aggregate liability of Seller in connection with,
arising out of or in any way related to a breach or default by Seller under
this Agreement shall be $250,000. Purchaser hereby waives for itself and
anyone who may claim by, through or under Purchaser any and all rights to sue
or recover from Seller any amount greater than said limit.
19. TIME OF ESSENCE. Time is of the essence of this Agreement.
20. NOTICES. Any notice or demand which either party hereto is required or
may desire to give or deliver to or make upon the other party shall be in
writing 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:
<PAGE>
TO SELLER: c/o The Balcor Company
Bannockburn Lake Office Plaza
2355 Waukegan Road
Suite A-200
Bannockburn, Illinois 60015
Attention: Ilona Adams
(847) 267-1600
with copies to: The Balcor Company
Bannockburn Lake Office Plaza
2355 Waukegan Road
Suite A-200
Bannockburn, Illinois 60015
Attention: Alan Lieberman
(847) 317-4360
(847) 317-4462 (FAX)
and to: Katten Muchin & Zavis
525 West Monroe Street
Suite 1600
Chicago, Illinois 60661-3693
Attention: Daniel J. Perlman, Esq.
(312) 902-5532
(312) 902-1061 (FAX)
TO PURCHASER: c/o Raymond James Realty Advisors, Inc.
7000 Central Parkway
Suite 1500
Atlanta, Georgia 30328
Attention: Robert L. Morris, Vice President
(770) 551-0007
(770) 551-0480 (FAX)
and one copy to: Roberts, Isaf & Summers
500 Northpark Town Center
1100 Abernathy Road, N.E.
Suite 1100
Atlanta, Georgia 30328
Attention: Fred T. Isaf, Esq.
(770) 551-9800
(770) 393-1741 (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 confirmed 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
<PAGE>
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. Rejection or other refusal to
accept or inability to deliver because of changed address of which no notice
was given shall be deemed to be receipt of the notice, request or other
communication.
21. 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.
22. GOVERNING LAW. The provisions of this Agreement shall be governed by and
construed, interpreted and enforced in accordance with the laws of the State of
Georgia except that with respect to the retainage of the Earnest Money as
liquidated damages the laws of the State of Illinois shall govern.
23. 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. All promises, inducements, offers, letters of intent,
solicitations, agreements, commitments, representations and warranties
heretofore made between such parties are merged into this Agreement. This
Agreement cannot be modified or amended in any respect except by a written
instrument executed by or on behalf of each of the parties to this Agreement.
24. COUNTERPARTS. This Agreement may be executed in multiple counterparts,
each of which shall be deemed an original but all of which shall constitute one
and the same instrument.
25. CAPTIONS. Paragraph titles or captions contained herein are inserted as a
matter of convenience and for reference, and in no way define, limit, extend or
describe the scope of this Agreement or any provision hereof.
26. EXHIBITS. Each and every exhibit referred to or otherwise mentioned in
this Agreement is attached to this Agreement and is and shall be construed to
be made a part of this Agreement by such reference, in the same manner and with
the same effect as if each exhibit were set forth in full and at length every
time it is referred to or otherwise mentioned.
<PAGE>
27. REFERENCES. All references to Paragraphs will be deemed to refer to the
appropriate Paragraph of this Agreement. Unless otherwise specified in this
Agreement, the terms "herein", "hereof", "hereunder" and other terms of like or
similar import, will be deemed to refer to this Agreement as a whole, and not
to any particular Paragraphs hereof. Words of any gender used in this
Agreement will be held and construed to include any other gender, and words of
a singular number shall be held to include plural, and vice versa, unless the
context requires otherwise.
28. WAIVER. Any condition or right of termination, cancellation or rescission
granted by this Agreement to Purchaser or Seller may be waived, but only in
writing, by such party. No such waiver shall be deemed to constitute a waiver
of any subsequent condition or right of termination, cancellation or
rescission.
29. RIGHTS CUMULATIVE. Except as expressly limited by the terms of this
Agreement, all rights, powers and privileges conferred hereunder are cumulative
and not restrictive of those given by law.
30. SUCCESSORS AND ASSIGNS. This Agreement will be binding upon and inure to
the benefit of the parties hereto and their respective heirs, successors and
permitted assigns.
31. DATE FOR PERFORMANCE. If the time period by which any right, option or
election provided under this Agreement must be exercised, or by which any act
required hereunder must be performed, or by which the Closing must be held,
expires on a Saturday, Sunday or legal or national bank holiday, then such time
period will be automatically extended through the close of business on the next
regularly scheduled business day.
32. FURTHER ASSURANCES. The parties hereto agree that they will each take
such steps and execute such documents as may be reasonably required by the
other party or parties to carry out the intents and purposes of this Agreement.
33. VALIDITY OF AGREEMENT. The validity of this Agreement between Seller and
Purchaser will not be affected by whether or not any Broker or any party other
than Seller and Purchaser has signed this Agreement or any amendments thereto.
34. SEVERABILITY. In the event any provision or portion of this Agreement is
held by any court of competent jurisdiction to be invalid or unenforceable,
such holding will not affect the remainder hereof, and the remaining provisions
shall continue in full force and effect at the same extent as would have been
the case had such invalid or unenforceable provision or portion never been a
part hereof.
35. AUTHORITY. The undersigned officers of Seller and Purchaser hereby
represent, covenant and warrant that all actions necessary by their respective
boards of directors, directors, shareholders and partners will have been
obtained and that they will have been specifically authorized to enter into
this Agreement and that no additional action will be necessary by them in order
to make this Agreement legally binding upon them in all respects. Purchaser
and Seller covenant to provide written evidence of compliance with this
Paragraph prior to the end of the Inspection Period.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have put their hand and seal as of
the date first set forth above.
PURCHASER:
RJ PROPERTIES, INC., a Florida corporation
By: /s/ Robert L. Morris
-------------------------------------
Name: Robert L. Morris
-------------------------------------
Its: Sr. V.P.
-------------------------------------
SELLER:
ATLANTA LAKES JOINT VENTURE, an Illinois
general partnership
By: Atlanta Lakes, Inc., an Illinois corporation,
a general partner
By: /s/ Daniel L. Charleston
--------------------------------------
Name: Daniel L. Charleston
--------------------------------------
Its: Authorized Agent
--------------------------------------
By: Atlanta Lakes Investors, an Illinois
limited partnership, a general partner
By: Balcor Partners-XX, an Illinois general
partnership, its general partner
By: The Balcor Company, a Delaware
corporation, a partner
By: /s/ Daniel L. Charleston
---------------------------------
Name: Daniel L. Charleston
---------------------------------
Its: Authorized Agent
---------------------------------
<PAGE>
Post Lake Apartments
Smyrna, Georgia
Jay Clark of Apartment Realty Advisors ("Seller's Broker") executed this
Agreement in its capacity as a real estate broker and acknowledges that the fee
or commission due it from Seller as a result of the transaction described in
this Agreement is as set forth in that certain Listing Agreement, dated __,
199_ between Seller and Seller's Broker (the "Listing Agreement"). Seller's
Broker also acknowledges that payment of the aforesaid fee or commission is
conditioned upon the Closing and the receipt of the Purchase Price by the
Seller. Seller's Broker agrees to deliver a receipt to the Seller at the
Closing for the fee or commission due Seller's Broker and a release, in the
appropriate form, stating that no other fees or commissions are due to it from
Seller or Purchaser.
Apartment Realty Advisors
By:
-----------------------------------
Jay Clark
<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 - Rent Roll
<PAGE>
SECURITY CAPITAL PACIFIC TRUST
July 12, 1996
VIA FACSIMILE
Redwood Shores Apartment Associates, Ltd.
c/o The Balcor Company
Bannockburn Lake Office Plaza
2335 Waukegan Road, Suite A-200
Bannockburn, Illinois 60015
Attention: Ilona Adams
Re: SECURITY CAPITAL PACIFIC TRUST
Redwood Shores Apartments
Ladies and Gentlemen:
Reference is made to that certain Agreement of Sale (the "Purchase
Agreement) dated June 12, 1996, by and between Redwood Shores Apartment
Associates, Ltd. ("Seller") and Security Capital Pacific Trust ("Buyer"). The
undersigned is delivering this letter to you pursuant and in accordance with
Paragraph 10 of the Purchase Agreement and this letter shall serve as Buyer's
election to extend the Closing Date from July 21, 1996 to August 21, 1996.
Sincerely,
SECURITY CAPITAL PACIFIC TRUST
By: /s/ Anthony R. Arnest
--------------------------------------
Name: Anthony R. Arnest
Title: V.P.
cc: Mr. Mark Peppercorn
Ms. Lynn Caldwell
Mr. Scott A. Drain
<PAGE>
SECURITY CAPITAL PACIFIC TRUST
August 9, 1996
VIA FACSIMILE
Redwood Shores Apartment Associates, ltd.
c/o The Balcor Company
Bannockburn Lake Office Plaza
2335 Waukegan Road, Suite A-200
Bannockburn, Illinois 60015
Attention: Ilona Adams
Re: Redwood Shores Apartments
Redwood City, California
Ladies and Gentlemen:
Reference is made to that certain Agreement of Sale (the "Purchase
Agreement") dated June 12, 1996, by and between Redwood Shores Apartment
Associates, Ltd. ("Seller") and Security Capital Pacific Trust ("Buyer"). The
undersigned is delivering this letter to you pursuant and in accordance with
Paragraph 10 of the Purchase Agreement and this letter shall serve as Buyer's
election to extend the Closing Date from August 21, 1996 to September 23, 1996.
Sincerely,
SECURITY CAPITAL PACIFIC TRUST
By: /s/ Toni K. Beldock
Toni K. Beldock
cc: (Via Facsimile)
Mr. Dan Charleston
Mr. Scott A. Drane
Ms. Lynn Caldwell
Mr. L. Bruce Fischer, Esq.
Ms. Francis Chetta
Mr. Jim Norris
Mr. Mark Peppercorn
<PAGE>
