SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15 (d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of Report (date of earliest event reported) August 25, 1997
OUTLET CENTRE PARTNERS
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Exact Name of Registrant
Illinois 0-16717
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State or other jurisdiction Commission file number
2355 Waukegan Road
Suite A200
Bannockburn, Illinois 36-3498737
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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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In December 1986, the Partnership, through a limited partnership, acquired the
Factory Outlet Centre (the "Centre"), Bristol, Wisconsin. The Partnership also
acquired a 3-acre parcel and a 6-acre parcel located adjacent to the Centre
which were subsequently developed for additional parking and another phase of
the Centre, respectively (together with the Centre, the "Property"). In 1987,
the Partnership raised $30,000,000 from Limited Partners and utilized
approximately $26,550,000 from these offering proceeds towards the acquisition
of the Property. In 1987, the Partnership obtained a first mortgage loan
collateralized by the Property from an unaffiliated party, $4,000,000 of which
was funded in 1987 and $8,000,000 of which was funded in 1989. Of the
$8,000,000 funded in 1989, $7,400,100 was distributed to Limited Partners as
Net Cash Proceeds. In 1994, the mortgage loan was refinanced with a new
$12,750,000 first mortgage loan from an unaffiliated party. The loan matures
in July 1999. Based upon the current operations of the Property, the General
Partner believes it is unlikely that the full amount of the loan can be
refinanced at maturity.
On August 25, 1997, the Partnership contracted to sell the Property to Insignia
Commercial Investments Group Inc., a Delaware corporation (the "Purchaser"),
for a sale price of $17,000,000. This price exceeds the current appraised
value of the Property. The Purchaser is an affiliate of Insignia Management
Group, L.P. which has provided property management services for the Property.
In addition, in November 1996, Insignia Capital Advisors, Inc., another
affiliate of the Purchaser, executed a broker listing agreement with the
Partnership and will receive a commission in connection with the sale of the
Property as described below.
The Purchaser is obligated to deposit $150,000 into an escrow account as
earnest money. The remainder of the sale price will be payable in cash at
closing, scheduled for October 16, 1997. The closing may be accelerated upon
three days' prior notice from the Purchaser to the Partnership and upon the
consent of the Partnership. From the proceeds of the sale, the Limited
Partnership will repay the outstanding balance of the first mortgage loan of
approximately $12,319,000 and will pay $425,000 as a brokerage fee to an
affiliate of the Purchaser. The Partnership will receive the remaining
proceeds of approximately $4,256,000, less closing costs.
Insignia Management Group, L.P. has provided property management and asset
disposition services to other properties owned by affiliates of the Partnership
and Insignia Capital Advisors, Inc. has provided brokerage services for in
excess of 30 other properties owned by affiliates of the Partnership. In
addition, affiliates of the Purchaser have purchased two properties owned by
affiliates of the Partnership.
The closing is subject to the satisfaction of numerous terms and conditions.
There can be no assurance that all of the terms and conditions will be complied
with and, therefore, it is possible the sale of the Property may not occur.
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ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS
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(A) FINANCIAL STATEMENTS AND EXHIBITS:
None
(B) PRO FORMA FINANCIAL INFORMATION:
None
(C) EXHIBITS:
(2) (i) Agreement of Sale and attachment thereto relating to the
sale of Factory Outlet Centre, Bristol, Wisconsin.
(ii) Letter Agreement relating to the sale of Factory Outlet
Centre, Bristol, Wisconsin.
No information is required under Items 1, 3, 4, 5, 6 and 8 and these items
have, therefore, been omitted.
Signature
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Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this Report to be signed on its behalf by the
undersigned hereunto duly authorized.
OUTLET CENTRE PARTNERS
By: Balcor Partners-XXII, an Illinois general
partnership, its general partner
By: The Balcor Company, a Delaware corporation,
a partner
By: /s/ John K. Powell, Jr
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John K. Powell, Jr.
Senior Vice President
Dated: August 29, 1997
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<PAGE>
AGREEMENT OF SALE
THIS AGREEMENT OF SALE (this "Agreement"), is entered into as of the 25th
day of August, 1997, by and between INSIGNIA COMMERCIAL INVESTMENTS GROUP INC.,
a Delaware corporation ("Purchaser"), and FACTORY OUTLET CENTRE LIMITED
LIABILITY COMPANY, an Illinois limited liability company ("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 Seventeen Million and No/100 Dollars ($17,000,000.00) (the
"Purchase Price").
(a) the land in Kenosha, Wisconsin, 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 "Factory Outlet
Center", 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 Fifty Thousand and No/100 Dollars
($150,000.00) (the "Earnest Money") to be held in escrow by and in accordance
with the provisions of the Escrow Agreement ("Escrow Agreement") attached
hereto as Exhibit C. 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 Chicago Title Insurance
Company (hereinafter referred to as "Title Insurer") with an effective date of
July 22, 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. Seller, at Seller's cost, shall obtain an ALTA
survey for the Property (the "Updated Survey") and deliver 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. 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 caused by the actions of Purchaser; and
(c) the title exceptions deemed "Permitted Exceptions" pursuant to Paragraph
3.2 below. All other exceptions to title shall be referred to as "Unpermitted
Exceptions".
3.2. If the Title Commitment or the Updated Survey discloses any
exceptions to title other than the Permitted Exceptions, Purchaser may give
written notice to Seller (the "Title Notice") of Purchaser's disapproval of any
such exceptions (a "Disapproved Title Exception") on or before the date five
(5) business days after the date Purchaser's counsel receives the Updated
Survey. Any title exceptions which are set forth in the Title Commitment or on
the Updated Survey to which Purchaser does not object in accordance with the
immediately preceding sentence shall be deemed additional Permitted Exceptions.
With regard to a Disapproved Title Exception for which Purchaser gives Seller a
Title Notice, Seller may but shall not have the obligation to notify Purchaser
(the "Response Notice") within three (3) business days of receipt of the Title
<PAGE>
Notice whether Seller shall bond over, cure or cause the Title Insurer to
remove such Disapproved Title Exception from the Title Commitment. Any such
Disapproved Title Exception which Seller elects to bond over, cure or cause the
Title Insurer to remove shall be additional Permitted Exceptions. If Seller
does not so notify Purchaser, with respect to any Disapproved Title Exception,
Purchaser may either waive its objection and proceed towards closing or
terminate this Agreement by giving written notice to Seller of its election
within three (3) additional business days of the earlier to occur of (a)
receipt by Purchaser of the Response Notice and (b) expiration of the three (3)
business day period in which Seller may deliver the Response Notice. If
Purchaser does not give such written notice within such three (3) additional
business days, (i) Purchaser shall have waived its right to terminate this
Agreement pursuant to this Paragraph 3.2; (ii) such Disapproved Title Exception
shall be deemed an additional Permitted Exception; and (iii) the parties shall
proceed to Closing. If Purchaser terminates this Agreement by written notice
to Seller within such three (3) additional business days: (i) Purchaser shall
promptly deliver to Seller copies of all studies, reports and other
investigations obtained by Purchaser in connection with its due diligence of
the Property, (ii) the Earnest Money deposited by Purchaser shall be
immediately paid to Purchaser, together with any interest earned thereon and
(iii) 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 Paragraph 7.
3.3. The Title Commitment and the Updated Survey 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 an ALTA 1992 Form Title Policy
in conformance with the previously delivered Title Commitment, subject to only
the Permitted Exceptions, Disapproved Title Exceptions waived by Purchaser and
Unpermitted Exceptions waived by Purchaser (the "Title Policy"). Seller and
Purchase shall each pay for one half of the costs of the Title Commitment and
Title Policy. Purchaser shall pay for 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.
3.4. The obligations of Purchaser and Seller to pay various costs set
forth in Paragraphs 3.1 and 3.3 shall survive the termination of this
Agreement.
4. PAYMENT OF CLOSING COSTS. Purchaser and Seller shall each pay one half of
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.
<PAGE>
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.
5.2. Seller agrees to convey fee simple title to the Property to
Purchaser by a Special Warranty Deed (the "Deed") in recordable form subject
only to the Permitted Exceptions, Disapproved Title Exceptions waived by
Purchaser, and Unpermitted Exceptions waived by Purchaser.
<PAGE>
6. CONDEMNATION, EMINENT DOMAIN, DAMAGE AND CASUALTY.
6.1. Except as provided in the indemnity provisions contained in
Paragraph 7.1 of this Agreement, Seller shall bear all risk of loss with
respect to the Property up to the earlier of the dates upon which either
possession or title is transferred to Purchaser in accordance with this
Agreement. Notwithstanding the foregoing, in the event of damage to the
Property by fire or other casualty prior to the Closing Date, repair of which
would cost less than or equal to $100,000.00 (as determined by Seller in good
faith) Purchaser shall not have the right to terminate its obligations under
this Agreement by reason thereof, but Seller shall have the right to elect to
either repair and restore the Property (in which case the Closing Date shall be
extended until completion of such restoration) or to assign and transfer to
Purchaser on the Closing Date all of Seller's right, title and interest in and
to all insurance proceeds paid or payable to Seller on account of such fire or
casualty. Seller shall promptly notify Purchaser in writing of any such fire
or other casualty and Seller's determination of the cost to repair the damage
caused thereby. In the event of damage to the Property by fire or other
casualty prior to the Closing Date, repair of which would cost in excess of
$100,000.00 (as determined by Seller in good faith), then this Agreement may be
terminated at the option of Purchaser, which option shall be exercised, if at
all, by Purchaser's written notice thereof to Seller within 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) impair access to the Property; (ii) cause
any non-compliance with any applicable law, ordinance, rule or regulation of
any federal, state or local authority or governmental agencies having
jurisdiction over the Property or any portion thereof; or (iii) adversely
impair the use of the Property as it is currently being operated (hereinafter
collectively referred to as a "Material Event"), Purchaser may:
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
<PAGE>
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 the date hereof and ending at 5:00
p.m. Chicago time on September 2, 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 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.
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.
<PAGE>
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, including matters related to title or
survey, 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
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
<PAGE>
conditions of, the Property, whether known or unknown. As used herein,
"Environmental Laws" means all federal, state and local statutes, codes,
regulations, rules, ordinances, orders, standards, permits, licenses, policies
and requirements (including consent decrees, judicial decisions and
administrative orders) relating to the protection, preservation, remediation or
conservation of the environment or worker health or safety, all as amended or
reauthorized, or as hereafter amended or reauthorized, including without
limitation, the Comprehensive Environmental Response, Compensation and
Liability Act ("CERCLA"), 42 U.S.C. Section 9601 et seq., the Resource
Conservation and Recovery Act of 1976 ("RCRA"), 42 U.S.C. Section 6901 et seq.,
the Emergency Planning and Community Right-to-Know Act ("Right-to-Know Act"),
42 U.S.C. Section 11001 et seq., the Clean Air Act ("CAA"), 42 U.S.C. Section
7401 et seq., the Federal Water Pollution Control Act ("Clean Water Act"), 33
U.S.C. Section 1251 et seq., the Toxic Substances Control Act ("TSCA"), 15
U.S.C. Section 2601 et seq., the Safe Drinking Water Act ("Safe Drinking Water
Act"), 42 U.S.C. Section 300f et seq., the Atomic Energy Act ("AEA"), 42 U.S.C.
Section 2011 et seq., the Occupational Safety and Health Act ("OSHA"),
29 U.S.C. Section 651 et seq., and the Hazardous Materials Transportation Act
(the "Transportation Act"), 49 U.S.C. Section 1802 et seq. As used herein,
"Hazardous Materials" means: (1) "hazardous substances," as defined by CERCLA;
(2) "hazardous wastes," as defined by RCRA; (3) any radioactive material
including, without limitation, any source, special nuclear or by-product
material, as defined by AEA; (4) asbestos in any form or condition; (5)
polychlorinated biphenyls; and (6) any other material, substance or waste to
which liability or standards of conduct may be imposed under any Environmental
Laws. 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.
7.4. Seller has provided to Purchaser the following existing reports: Law
Engineering and Environmental Services report of Phase I Environmental Site
Assessment and Limited Asbestos Survey (Draft) of the Factory Outlet Center,
dated May 4, 1994 (Project No. 274-4087-000) and Nova Environmental Services,
Inc. Phase I Environmental Assessment of the Factory Outlet Center, dated May
19, 1993 (Project No. C93-133) (together, the "Existing Reports"). Seller
<PAGE>
makes no representation or warranty concerning the accuracy or completeness of
the Existing Reports. Purchaser hereby releases Seller and the Affiliates of
Seller from any liability whatsoever with respect to the Existing Reports, or,
including, without limitation, the matters set forth in the Existing Reports,
and the accuracy and/or completeness of the Existing Reports. 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
October 16, 1997 (the "Closing Date"), at the office of Title Insurer, Kenosha,
Wisconsin, 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 October 16, 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
and such accelerated Closing Date shall be acceptable to Seller in its sole
discretion. 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 Wisconsin, 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);
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;
<PAGE>
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, including but not limited to
mechanics lien affidavits and indemnities 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 and personal property taxes, if any (on
the basis of allowable discounts for early payments) prorated on a "net" basis
(i.e. adjusted for all tenants' liability, if any, for such items), 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 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; 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.
12.1.8. Percentage rent payable under the leases shall be prorated
as of the Closing Date as follows:
12.1.8.1. Any percentage rent attributable to a specified
period ("Percentage Rent Period") ending prior to the Closing Date shall be
promptly paid over to the Seller if and when collected. Seller shall be
entitled to all percentage rent attributable to the period prior to Closing
Date for any Percentage Rent Period ending prior to Closing Date.
12.1.8.2. Percentage rent payable with respect to a Percentage
Rent Period a portion of which occurs prior to the Closing Date and a portion
of which occurs subsequent to the Closing Date shall be apportioned between
Purchaser and Seller on the basis of their respective period of ownership
during the applicable Percentage Rent Period. Seller shall be entitled to
percentage rent determined by multiplying the total percentage rent for such
Percentage Rent Period by a fraction, the numerator of which shall be the total
number of days in such Percentage Rent Period prior to the Closing Date and the
denominator of which shall be the total number of days in the Percentage Rent
Period. Purchaser shall be entitled to the remainder of such percentage rent.
The amount of such percentage rent allocated to Seller shall be adjusted by the
parties and paid by Purchaser or Seller to the other, as appropriate, on the
Closing Date based upon ninety-five percent (95%) of the percentage rent
payable by the applicable tenants for the most recently completed Percentage
Rent Period less any percentage rent, if any, collected by Seller for the
current Percentage Rent Period. Within 120 days after the Closing Date,
<PAGE>
Purchaser shall deliver to Seller a reconciliation statement of percentage rent
through the first 90 days after the Closing Date. Upon the delivery of the
percentage rent reconciliation, Purchaser shall deliver to Seller any unpaid
percentage rent 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 percentage rent reconciliation statement
and upon the verification of additional funds owing to Seller, Purchaser shall
pay to Seller said additional percentage rent and, if Seller's audit has
disclosed an inaccuracy in the percentage rent reconciliation statement which
is greater than ten percent (10%) of the proper percentage rent due to Seller,
the cost of performing Seller's audit. Paragraph 12.1.8.2 of this Agreement
shall survive the Closing and the delivery and recording of the deed.
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 agrees to assume the payment of the remaining
"Tenant Improvement and Leasing Commissions" as shown on Exhibit O (with 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.
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.
<PAGE>
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 December 15,
1997, or sixty (60) calendar days following Closing (whichever occurs later),
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, 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 the date which is one hundred eighty
(180) days following Closing.
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.
<PAGE>
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 or to any partnership in which Purchaser or its
affiliate is a general partner or a limited partner or a limited liability
company in which Purchaser or its affiliate is a member, 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.
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 Michael Contor, 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 Michael
<PAGE>
Contor 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 six (6) months after the
Closing Date (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. 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.
(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.
<PAGE>
(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 free and clear of all liens and encumbrances by Seller and used or useful
in connection with the maintenance, repair or operation of the Property.
(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.
<PAGE>
(m) Seller has received no written notice from any governmental
entity relating to violations of environmental laws, rules or regulations
applicable to the Property.
(n) The Property has a joint promotional program and Seller shall
deliver documents related thereto to Purchaser during the Inspection Period.
(o) The Property is not subject to any unrecorded reciprocal
easement agreements.
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
corporation 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 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: Jerry Ogle, Esq.
(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 Investment Group Inc.
3100 Monticello, Suite 400
Dallas, Texas 75205
Attention: Mr. Michael Horowitz
(214) 525-2000
(214) 525-2022 (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 Wisconsin, 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 Wisconsin, 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
this transaction. Notwithstanding the foregoing, Purchaser or Seller shall
<PAGE>
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:
(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
<PAGE>
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 ten (10) 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 ten (10) 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 consent shall not be unreasonably withheld or delayed.
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. 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.
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;
(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 that (a)
a Seller Tenant Certificate shall in all cases be limited to Seller's knowledge
as defined in Paragraph 16.1 hereof, and (b) Seller shall be entitled to
deliver Seller Tenant Certificates for no more than 20% of the square footage
of the occupied leasable area of the Property;
(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
<PAGE>
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
August, 1997 or September, 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.
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 the date which is ten (10) days prior to Closing,
either a Tenant Certificate or Seller Certificate from (i) all tenants
occupying 2500 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 (85%) 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 $25,000 in the aggregate. The "Estoppel
Qualification Sum" shall mean the following:
<PAGE>
(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 $25,000 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
$25,000 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 the date which is ten (10) days prior to Closing,
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 the date which
is seven (7) days prior to Closing. 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.
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 $25,000 or (ii) Seller shall cure
all conditions giving rise to an Unacceptable Qualification Sum up to an
aggregate amount of $25,000. 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 $25,000 and Purchaser has terminated the Agreement
pursuant to Paragraph 33.5, Seller shall have the right to vitiate Purchaser's
<PAGE>
termination by written notice on or before 5:00 p.m. Chicago time on the date
which is five (5) days prior to Closing 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.
THIS SPACE INTENTIONALLY LEFT BLANK - EXECUTION PAGE FOLLOWS
<PAGE>
IN WITNESS WHEREOF, the parties hereto have put their hand and seal as of
the date first set forth above.
PURCHASER:
Insignia Commercial Investments Group Inc.,
a Delaware corporation
By: /s/ Michael R. Horowitz
--------------------------------------
Name: Michael R. Horowitz
--------------------------------------
Its: President
--------------------------------------
SELLER:
FACTORY OUTLET CENTRE LIMITED LIABILITY COMPANY,
an Illinois limited liability company
By: Outlet Centre Investors, an Illinois
limited partnership, a member
By: Balcor Partners-XXI, an Illinois
general partnership, its general
partner
By: The Balcor Company, a Delaware
corporation, its general partner
By: /s/ Beth Goldstein
----------------------------------
Name: Beth Goldstein
----------------------------------
Its: Authorized Representative
----------------------------------
<PAGE>
[Factory Outlet Center]
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 , 1997 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:
--------------------------------------
<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>
August 25, 1997
VIA FEDERAL EXPRESS
Mr. Gary Goodman
Akin, Gump, Strauss,
Hauer & Feld, L.L.P.
590 Madison Avenue
New York, New York 10022
Re: Factory Outlet Center, Kenosha, Wisconsin
Dear Gary:
In connection with the above-referenced property, I have enclosed two
executed copies of the Agreement of Sale. I have also enclosed, for your
review, two updated Service Contract lists and two updated Personal Property
lists. If these revised exhibits meet with your approval, please remove the
Service Contract and Personal Property exhibits from the Agreements and
substitute the updated exhibits in their place. Additionally, please note that
I have made a change on page six of the Agreement to reflect that the due
diligence period has been extended from September 2, 1997 until September 15,
1997. Finally, as I believe you and Kyle discussed in my absence, the bold
parentheticals previously located on pages 17 and 18 have been deleted and the
representation regarding the "Merchants Association" has been revised to
reflect that there is a joint promotional program rather than an Association.
If the above changes meet with your approval, please execute the
acknowledgment block below and return a copy of this letter to me via facsimile
with an original to follow via overnight courier. I will forward the exhibit
regarding tenant improvements and a revised rent roll shortly. If you have any
questions regarding the enclosed, please feel free to call me.
Very truly yours,
/s/ Stephen J. Levy
Stephen J. Levy
sjl/291950
Enclosures
cc: Mr. Alan Lieberman (w/o enclosures via facsimile)
Daniel J. Perlman, Esq. (w/o enclosures)
AGREED TO AND ACKNOWLEDGED THIS
DAY OF AUGUST, 1997
By:
Name:
Its:
