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) January 20, 1997
BALCOR EQUITY PENSION INVESTORS-II
A REAL ESTATE LIMITED PARTNERSHIP
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Exact Name of Registrant
Illinois 0-13348
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State or other jurisdiction Commission file number
2355 Waukegan Road
Suite A200
Bannockburn, Illinois 36-3314331
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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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100 Ashford Center North Office Building
In 1985, the Partnership funded a $19,700,000 first mortgage loan
collateralized by the 100 Ashford Center North Office Building (formerly known
as the Paragon at Ashford-Dunwoody Office Building), Atlanta, Georgia. The
Partnership obtained title to the property through a deed in lieu of
foreclosure in 1987.
On January 20, 1997, the Partnership contracted to sell the property for a sale
price of $17,746,000 to an unaffiliated party, Acquiport Ashford Center North,
Inc., a Delaware corporation. The purchaser has deposited $178,000 into an
escrow account as earnest money. The remaining portion of the sale price will
be payable in cash at closing, which is scheduled to occur on February 17,
1997. The closing may be extended at the option of the purchaser to a date no
later than February 28, 1997 upon written notice to the Partnership no later
than February 14, 1997. From the proceeds of the sale, the Partnership will
pay $354,920 as a brokerage commission to an affiliate of the third party
providing property management services for the property. The Partnership will
receive the remaining proceeds of approximately $17,391,000, less closing
costs. Of such proceeds, $1,100,000 will be retained by the Partnership and
will not be available for use or distribution by the Partnership for nine
months after the closing. Neither the General Partner nor any affiliate will
receive a brokerage commission in connection with the sale of the property.
The General Partner will be reimbursed by the Partnership for actual expenses
incurred in connection with the sale.
An affiliate of the Partnership has simultaneously contracted to sell a
property to an affiliate of the purchaser.
The closing is subject to the satisfaction of numerous terms and conditions.
There can be no assurance that all of the terms and conditions will be complied
with and, therefore, it is possible the sale of the property may not occur.
ITEM 5. OTHER EVENTS
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Ammendale Technology Park - Phase I
As previously reported, on November 19, 1996, the Partnership contracted to
sell Ammendale Technology Park - Phase I, Prince George's County, Maryland, to
an unaffiliated party, Writ Limited Partnership, for a sale price of
$8,078,000. The Partnership and the purchaser have agreed to reduce the sale
price to $7,732,000. The closing of the sale has been extended from January
13, 1997 to February 19, 1997.
Pursuant to the agreement of sale, as amended, the Partnership is obligated to
provide (i) an environmental report relating to the property which is
acceptable to the purchaser on or before February 13, 1997 and (ii) a
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certificate of occupancy for the property by closing. If the Partnership is
unable to obtain either document prior to the required date, the Partnership
and the purchaser each have the right to request an additional 30 days to
satisfy such obligation and the closing of the sale will occur 10 business days
after the satisfaction of the obligation. If the Partnership fails to
provide the environmental report or if the purchaser exercises its option
to terminate the agreement of sale, the Partnership will be obligated to
reimburse the purchaser for up to $10,000 in third party costs.
ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS
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(A) FINANCIAL STATEMENTS AND EXHIBITS:
None
(B) PRO FORMA FINANCIAL INFORMATION:
None
(C) EXHIBITS:
(2) Agreement of Sale and attachment thereto relating to the sale of
the 100 Ashford Center North Office Building, Atlanta, Georgia.
(99) (a) First Amendment to Agreement of Sale relating to the sale
of the Ammendale Technology Park - Phase I, Prince George's
County, Maryland.
(b) Second Amendment to Agreement of Sale relating to the sale
of the Ammendale Technology Park - Phase I, Prince George's
County, Maryland.
(c) Third Amendment to Agreement of Sale relating to the sale
of the Ammendale Technology Park - Phase I, Prince George's
County, Maryland.
No information is required under Items 1, 3, 4, 6 and 8 and these items
have, therefore, been omitted.
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Signature
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Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this Report to be signed on its behalf by the
undersigned hereunto duly authorized.
BALCOR EQUITY PENSION INVESTORS-II
A REAL ESTATE LIMITED PARTNERSHIP
By: Balcor Equity Partners-II, an Illinois
general partnership, its general partner
By: The Balcor Company, a Delaware corporation,
a partner
By: /s/ Jerry M. Ogle
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Jerry M. Ogle, Managing
Director and General Counsel
Dated: February 4, 1997
<PAGE>
AGREEMENT OF SALE
THIS AGREEMENT OF SALE (this "Agreement"), is entered into as of the20th
day of January, 1997, by and between ACQUIPORT ASHFORD CENTER NORTH, INC., a
Delaware corporation ("Purchaser"), and ASHFORD-DUNWOODY LIMITED PARTNERSHIP,
an Illinois limited partnership ("Seller").
W I T N E S S E T H:
1. PURCHASE AND SALE. Purchaser agrees to purchase and Seller agrees to sell
at the price of Seventeen Million Seven Hundred Forty-Six Thousand And No/100
Dollars ($17,746,000.00) (the "Purchase Price"), that certain property commonly
known as 100 Ashford Center North, Atlanta, Georgia and more particularly
described as follows, subject only to the "Permitted Exceptions" (hereinafter
defined) (collectively, the "Property"):
1.1. that certain tract of real estate on which is situated an office
building, which real estate is legally described in the attached Exhibit A,
together with any and all and singular easements, covenants, agreements,
rights, privileges, tenements, hereditaments, rights of way, licenses,
interests and appurtenances of any kind thereunto now or hereafter owned by
Seller and belonging or appertaining thereto including, but not limited to, all
right, title and interest of Seller in and to any adjacent vaults, alleys,
strips or gores of land, and any air, zoning or development rights appurtenant
thereunto and all right, title and interest of Seller in and to any land lying
in the bed of any street, highway, alley, road access way, easement or avenue
(whether open, closed or proposed) within, in front of, behind, aside or
otherwise adjoining the real estate legally described in Exhibit A or any of
it, and all right, title and interest of Seller in and to any award made or to
be made as a result or in lieu of condemnation (subject to the provisions of
Paragraph 6 hereof) (collectively the "Land"); and
1.2. all right, title and interest of Seller in and to all of the
buildings, structures and other improvements now or hereafter in, on, over or
under the Land and in and to any award for damage to such buildings and
improvements or any part thereof by reason of casualty (subject to the
provisions of Paragraph 6 hereof) (collectively, the "Improvements"; the Land
and Improvements being collectively referred to as the "Premises"); and
1.3. all right, title and interest of Seller in and to all furniture,
furnishings, fixtures, equipment, machinery and other tangible personal
property situated in, on, over and under the Premises or used in connection
therewith, owned or leased by Seller or in which Seller otherwise has an
interest and which is not owned by tenants under the Leases (as such term is
hereinafter defined), together with all replacements and substitutions therefor
(together with the intangible personal property hereinafter identified,
collectively the "Personal Property"), including, without limitation, the items
listed on Exhibit B attached to this Agreement; and
1.4. all right, title and interest of Seller in and to all existing
permits, guarantees, bonds, certificate of occupancies, logos, warranties,
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trademarks, surveys, blue prints, drawings, plans and specifications
(including, without limitation, structural, HVAC, mechanical and plumbing plans
and specifications) to the extent available and in Seller's possession or
control; including, without limitation, all tenant lists and data (excluding
computer software), correspondence with tenants, vendors, and utility companies
concerning the Property or any part thereof, but excluding any internal
memoranda or reports; and
1.5. all right, title and interest of Seller in and to the Leases,
Security Deposits and Service Contracts (as such terms are hereinafter defined)
and the other intangible personal property now or hereafter owned by Seller or
in which Seller otherwise has an interest and used in connection with or
arising from the business now or hereafter conducted on or from the Property
including, without limitation, claims and contract rights.
2. PURCHASE PRICE. The Purchase Price shall be paid by Purchaser as follows:
2.1. Within five (5) business days after Seller's execution of this
Agreement, the sum of One Hundred Seventy-Eight Thousand and No/100 Dollars
($178,000.00) (the "Earnest Money") to be held in escrow by and in accordance
with the provisions of the Escrow Agreement ("Escrow Agreement") in the form
attached hereto as Exhibit C; and
2.2. On the date the "Closing" (hereinafter defined) shall occur, the
balance of the Purchase Price, adjusted in accordance with the prorations, by
federally wired "immediately available" funds, on or before 2:00 p.m. Chicago
time.
3. TITLE COMMITMENT AND SURVEY.
3.1. Attached hereto as Exhibit D is a copy of a title commitment for an
owner's standard title insurance policy issued by Near North National Title
Corporation as agent for First American Title Insurance Company (such company
is hereinafter referred to as "Initial Title Insurer") dated December 11, 1996
for the Property (the "Initial Title Commitment"). For purposes of this
Agreement, "Permitted Exceptions" shall mean: (a) those matters listed on
Exhibit E attached hereto; (b) general real estate taxes, assessments, special
assessments, special district taxes and related charges not yet due and
payable; (c) matters caused by the actions of Purchaser; (d) those third party
construction contracts for tenant improvements to be assumed by Purchaser as
more fully set forth in 12.2.3; and (e) those matters approved by Purchaser and
Seller pursuant to Paragraph 3.3 herein. All other exceptions to title shall
be referred to as "Unpermitted Exceptions." On the Closing Date, as a
condition to Purchaser's obligations hereunder, "Title Insurer" (hereinafter
defined) shall deliver to Purchaser a 1992 ALTA title policy in conformance
with the previously delivered "Title Commitment" (hereinafter defined), subject
to Permitted Exceptions (the "Title Policy"). Purchaser shall pay for the
premiums for the Title Policy and Purchaser shall pay for the premiums for any
endorsements to, or extended coverage on, the Title Policy.
3.2. Purchaser has received a survey of the Property prepared by Civil
Design, Inc. dated November 6, 1996 (the "Updated Survey"). Purchaser shall
pay for the costs of the Updated Survey.
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3.3. Purchaser desires to reserve the right to order a new title
commitment from a different title insurance company. The term "Title
Commitment" shall mean the title commitment obtained by Purchaser and delivered
to Seller on or before January 17, 1997 (unless Purchaser fails to so deliver a
new Title Commitment, in which case "Title Commitment" shall mean the Initial
Title Commitment, and the term "Title Insurer" shall mean the title company
issuing the Title Commitment). If the Title Commitment discloses any
exceptions not set forth on the Initial Title Commitment, then such exceptions
shall be deemed "Permitted Exceptions" unless Purchaser delivers written notice
to the contrary to Seller on or before January 17, 1997. Purchaser and Seller
shall use good faith efforts to determine whether or not said objected
exceptions shall be "Permitted Exceptions" on or before January 22, 1997. If
the parties cannot agree upon whether or not said new exceptions shall be
Permitted Exceptions on or before January 22, 1997, then either party shall
have the right to terminate this Agreement by notice to the other party on or
before January 22, 1997. If either party terminates this Agreement in
accordance with the terms of this Paragraph 3.3, this Agreement shall become
null and void without further action of the parties and all earnest money
theretofore deposited into escrow by Purchaser, together with interest accrued
thereon, shall be returned to Purchaser, and neither party shall have any
further liability to the other, except for those obligations which specifically
survive termination.
3.4. The obligation of Purchaser to pay various costs set forth in
Paragraphs 3.1 and 3.2 shall survive the consummation of the within transaction
(the "Closing") and termination of this Agreement unless this Agreement is
terminated by reason of Seller's default.
4. PAYMENT OF CLOSING COSTS.
4.1. Seller shall pay for the costs of the documentary or transfer stamps
to be paid with reference to the "Deed" (hereinafter defined) and all other
stamps, intangible, transfer, documentary, recording, sales tax and surtax
imposed by law with reference to any other sale documents delivered in
connection with the sale of the Property to Purchaser.
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 $100,000.00 ("Minor Unpermitted Exceptions") removed from the
Title Commitment or to have the Title Insurer commit to insure against loss or
damage that may be occasioned by such Minor Unpermitted Exceptions in a manner
reasonably acceptable to Purchaser, 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 $100,000.00, removed from the Title Commitment.
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 Minor Unpermitted Exception removed or have the Title Insurer commit to
<PAGE>
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, this
Agreement will terminate unless Purchaser delivers notice to Seller in
accordance with the following sentence; provided, however, and notwithstanding
anything contained herein to the contrary, if the Unpermitted Exception which
gives rise to Purchaser's right to terminate is the result of the affirmative
action of Seller (and not by any unrelated third party) or if Seller is able to
bond over, cure or remove the Unpermitted Exceptions for a cost not to exceed
$100,000.00 or the Title Insurer is willing to insure over the Minor
Unpermitted Exceptions for a cost not to exceed $100,000.00 in a manner
reasonably acceptable to Purchaser 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 herein. Subject to the foregoing,
if Purchaser delivers notice to Seller within five (5) days after the
expiration of said thirty (30) day period stating that Purchaser desires to
purchase the Property subject to such Unpermitted Exception, then Purchaser
shall take title subject to said Unpermitted Exception without any offset
against the Purchase Price. 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. Notwithstanding the provisions of Paragraph 5 hereof, Purchaser may at any
time accept the Title Policy in such form as the Title Insurer is willing to
issue, without reduction of the Purchase Price or any credit or allowance on
account thereof or any claims against Seller except that if on the Closing Date
there remain unremoved "Involuntary Monetary and Mechanics' Liens" (as defined
herein) which have neither been removed by Seller nor insured over by the Title
Insurer as provided herein, and Seller has not used the entire sum of $100,000
as provided above (the "Cure Amount") in removing such liens, then Purchaser
may elect to close subject to such unremoved Involuntary Monetary and
Mechanics' Liens and receive the Cure Amount less any amounts previously paid
by Seller or deposited with the Title Insurer to remove or obtain insurance
over any Involuntary Monetary and Mechanics' Liens.
As used herein the term "Involuntary Monetary and Mechanics Liens" shall
mean the existence of one or more (i) liens or encumbrances or (ii) mechanics'
liens created as a result of work performed at the Property which as to (i) and
(ii), are in liquidated amounts and can be removed or discharged by payment of
a sum of money and were not the result of the willful action of Seller.
5.2. Seller agrees to convey fee simple title to the Property to
Purchaser by limited warranty deed (the "Deed") in recordable form subject only
to the Permitted Exceptions and any Unpermitted Exceptions waived by Purchaser.
6. CONDEMNATION, EMINENT DOMAIN, DAMAGE AND CASUALTY.
6.1. Except as provided in the indemnity provisions contained in
Paragraph 7 of this Agreement, Seller shall bear all risk of loss with respect
to the Property up to the time title is transferred to Purchaser in accordance
<PAGE>
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 reasonably 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 shall be adjourned by up to 90 days 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 and allow as a credit
against the Purchase Price an amount equal to the applicable insurance
deductible. 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, repair of which would cost in excess of
$100,000.00 (as reasonably 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
fifteen (15) business days after Purchaser receives written notice of such fire
or other casualty and Seller's determination of the amount of such damages, and
upon the exercise of such option by Purchaser this Agreement shall become null
and void, the Earnest Money deposited by Purchaser shall be returned to
Purchaser together with interest thereon, and neither party shall have any
further liability or obligations hereunder except for those obligations
expressly stated to survive termination. In the event that Purchaser does not
exercise the option set forth in the preceding sentence, the Closing shall take
place on the scheduled Closing Date and Seller shall deliver, assign and
transfer to Purchaser on the Closing Date all insurance proceeds theretofore
received by Seller and all of Seller's right, title and interest in and to all
insurance proceeds payable to Seller on account of the fire or casualty and
allow as a credit against the Purchase Price an amount equal to the applicable
insurance deductible.
6.2. If between the date of this Agreement and the Closing Date, any
condemnation or eminent domain proceedings are initiated or threatened in
writing 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: (i) materially 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)
materially and adversely impair the use or value of the Property (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
deliver, transfer and assign to Purchaser all amounts previously paid to Seller
on account thereof and all of Seller's right, title and interest in and to any
award payable 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, 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 6.2.1. Except
as otherwise provided in this Agreement, 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 deliver, transfer and
assign to Purchaser all of Seller's right, title and interest in and to any
award payable in connection with such condemnation or eminent domain
proceedings.
6.4. No insurance claims or eminent domain award in connection with damage
or destruction or a taking shall be adjusted, settled or compromised without
the consent of Purchaser, which consent shall not be unreasonably withheld or
delayed.
7. INSPECTION AND AS-IS CONDITION.
7.1. During the period commencing on December 1, 1996 and ending on the
Closing, 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, and to conduct and prepare such studies, tests
and surveys as Purchaser may deem necessary and appropriate. In connection
with Purchaser's review of the Property, Seller agrees to deliver to Purchaser
copies of the current rent roll for the Property, the most recent tax and
insurance bills, utility account numbers, service contracts, and unaudited year
end 1995 and year-to-date 1996 operating statements. Furthermore, if the
following are Seller's possession, Seller shall deliver to Purchaser plans and
specifications.
All of the foregoing tests, investigations and studies to be conducted
under 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,
subject to reasonable wear and tear and subject to casualty not occasioned by
Purchaser's acts. 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
<PAGE>
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 (i)
Purchaser's insurer or the third party contractor's insurers, as applicable,
and reasonably approved by Seller, to the extent such approval rights are
available under Purchaser's or the third party contractor's coverage and
provided such approval by Seller is not unreasonably conditioned, delayed or
withheld or (ii) Purchaser and reasonably approved by Seller provided such
approval by Seller is not unreasonably conditioned, delayed or withheld. The
period commencing on December 1, 1996 and ending at 5:00 p.m. Chicago time on
January 22, 1997 shall be referred to as the "Inspection Period."
Prior to commencing any such tests, studies and investigations, Purchaser
shall furnish to Seller a certificate of insurance evidencing comprehensive
general public liability insurance insuring the person, firm or entity
performing such tests, studies and investigations and listing Seller and
Purchaser as additional insureds thereunder.
If Purchaser is dissatisfied in its sole and absolute discretion with the
results of the tests, studies or investigations performed or information
received with respect to the Property, 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 subject to any
conflicting obligations of Purchaser owed to anyone preparing or providing the
same; 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 obligations expressly stated to survive termination.
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. Except as expressly stated herein to the contrary: 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, ordinary wear and tear excepted and subject to
the terms of Paragraph 6; 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
<PAGE>
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; and Seller makes no
representation or warranty that the Property complies with Title III of the
Americans with Disabilities Act or any fire code or building code. Except for
any claim for a breach of a representation or warranty by Seller contained
herein or made pursuant hereto, 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 conditions of, the Property, whether known or unknown.
Notwithstanding the foregoing, to the extent a claim is made against Purchaser
concerning the presence of Hazardous Materials on the Property and to the
extent such Hazardous Materials were in existence during the period of Seller's
ownership of the Property ("Primary Claim"), then Purchaser shall have the
right to file suit, or assert liability, against Seller as a third party
defendant, or to otherwise assert a claim against Seller for contribution, cost
recovery or otherwise, but only as it relates to the Primary Claim. 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.
<PAGE>
7.3. Seller has provided to Purchaser certain unaudited historical
financial information regarding the Property relating to certain periods of
time in which Seller owned the Property. Seller and Purchaser hereby
acknowledge that such information has been provided to Purchaser at Purchaser's
request solely as illustrative material. Except as set forth herein to the
contrary, 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
except as set forth herein to the contrary, 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 report: Phase
I Environmental Site Assessment, prepared by Law Engineering, Inc. as Project
No. 5650407501, dated December 11, 1992 ("Existing Report"). Seller makes no
representation or warranty concerning the accuracy or completeness of the
Existing Report. Purchaser hereby releases Seller and the Affiliates of Seller
from any liability whatsoever with respect to the Existing Report, or,
including, without limitation, the accuracy and/or completeness of the Existing
Report. Furthermore, Purchaser acknowledges that it will be purchasing the
Property with all faults disclosed in the Existing Report. Notwithstanding
anything contained herein to the contrary, the terms of this Paragraph 7.4
shall survive the Closing and the delivery of the Deed and termination of this
Agreement.
8. CLOSING. The Closing shall be on February 17, 1997 (the "Closing Date"),
at the office of Purchaser's local counsel, Atlanta, Georgia, at which time
Seller shall deliver possession of the Property to Purchaser. Notwithstanding
anything contained herein to the contrary, Purchaser shall have the one time
right to extend the Closing Date to a date no later than February 28, 1997 by
delivering written notice of such to Seller on or before 5:00 p.m. Chicago time
on February 14, 1997. The Closing shall be a "New York style" closing at which
the Purchaser shall wire the balance of the Purchase Price (after giving effect
to adjustments) 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. Seller shall deliver
to Title Insurer any customary affidavit required by the Title Insurer in
connection with a New York style closing.
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 (after giving effect
to adjustments), 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.
<PAGE>
9.2. On the Closing Date, Seller shall execute and acknowledge (if
appropriate) and deliver to Purchaser the following:
9.2.1. the Deed (in the form of Exhibit F 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 G attached hereto);
9.2.3. an assignment and assumption of intangible property (in the
form attached hereto as Exhibit H), including, without limitation, the Service
Contracts listed in Exhibit I;
9.2.4. an assignment and assumption of leases and security deposits
(in the form attached hereto as Exhibit J);
9.2.5. a non-foreign affidavit (in the form of Exhibit K attached
hereto);
9.2.6. all original Leases in Seller's possession or control (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 any and all management and
leasing agreements affecting the Property;
9.2.10. notice to the tenants of the Property of the transfer of
title and assumption by Purchaser of the lessor's obligation under the Leases
and the obligation to refund the Security Deposits (in the form of Exhibit L);
9.2.11. an updated rent roll;
9.2.12. plans and specifications of the Improvements within the
possession or control of Seller prepared in connection with the construction,
maintenance, repair, management or operation of the Property;
9.2.13. all lease files and expense records maintained at the
Property by or on behalf of Seller in connection with the Property;
9.2.14. the keys in Seller's possession to all entrance doors,
tenant spaces, offices and store rooms;
9.2.15. an opinion of counsel as to Seller's power and authority to
enter into this Agreement and to consummate the transactions contemplated
herein;
9.2.16. Affidavit of Seller's Gain pursuant to Official Code of
Georgia Annotated ("O.C.G.A.") Section 48-7-128; and
<PAGE>
9.2.17. Unconditional Waiver and Release Upon Final Payment and an
Acknowledgment of Payment pursuant to O.C.G.A. Section 44-14-600, et. seq.
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 AND FOR ANY OTHER OBLIGATION OF PURCHASER
WHICH SPECIFICALLY SURVIVES TERMINATION HEREOF. SELLER SHALL HAVE NO RIGHT TO
SUE PURCHASER FOR SPECIFIC PERFORMANCE UNDER THE TERMS OF THIS AGREEMENT. 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 EXCEPT FOR SELLER'S OBLIGATION TO REIMBURSE PURCHASER FOR ITS
ACTUAL, DOCUMENTED THIRD PARTY EXPENSES INCURRED IN THE PERFORMANCE OF ITS DUE
DILIGENCE HEREUNDER AND THE PREPARATION OF THIS AGREEMENT, NOT TO EXCEED
$100,000.00 IN THE AGGREGATE. NOTWITHSTANDING ANYTHING CONTAINED HEREIN TO THE
CONTRARY, IF SELLER'S DEFAULT IS THE RESULT OF (i) ITS (AND NOT AN UNRELATED
THIRD PARTY'S) AFFIRMATIVE ACTION WHICH GIVES RISE TO PURCHASER'S RIGHT TO
TERMINATE THIS AGREEMENT PURSUANT TO PARAGRAPH 5 HEREOF; (ii) ITS FAILURE TO
EXPEND UP TO $100,000.00 IF (a) SELLER IS ABLE TO BOND OVER, CURE OR REMOVE THE
MINOR UNPERMITTED EXCEPTIONS FOR A COST NOT TO EXCEED $100,000.00 OR (b) THE
TITLE INSURER IS WILLING TO INSURE OVER THE MINOR UNPERMITTED EXCEPTIONS FOR A
COST NOT TO EXCEED $100,000.00 IN ACCORDANCE WITH THE TERMS HEREOF OR (iii) ITS
WILLFUL REFUSAL TO DELIVER THE CONVEYANCE DOCUMENTS SET FORTH IN PARAGRAPHS
9.2.1 THROUGH 9.2.11, INCLUSIVE, AND 9.2.13 AND 9.2.14, 9.2.16, AND 9.2.17,
THEN PURCHASER WILL BE ENTITLED TO OBTAIN SPECIFIC PERFORMANCE IN LIEU OF ITS
OTHER RIGHTS AND REMEDIES HEREIN. IF THIS SALE IS NOT COMPLETED FOR ANY REASON
OTHER THAN PURCHASER'S DEFAULT OR SELLER'S DEFAULT, PURCHASER SHALL BE ENTITLED
TO 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 AND IN EQUITY,
EXCEPT FOR PURCHASER'S OBLIGATION TO INDEMNIFY SELLER AND RESTORE THE PROPERTY
AS SET FORTH MORE FULLY IN PARAGRAPH 7 AND ANY OTHER RIGHTS OF THE PARTIES
WHICH SPECIFICALLY SURVIVE TERMINATION HEREOF.
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 the day preceding the Closing Date shall be allocated to Seller and credits
<PAGE>
and charges for the period after 11:59 P.M. on the day preceding the Closing
Date and all days thereafter shall be allocated to Purchaser. As of June 1,
1997 and June 1, 1998, Seller and Purchaser shall jointly prepare a final
proration statement in accordance with the provisions of this Paragraph 12 and
a final adjusting payment shall then be made, as provided in Paragraph 12.3
hereof.
12.1.1. Real estate taxes (on the basis of allowable discounts for
early payments), general and special assessments and the like ("Taxes") for the
year 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. The parties acknowledge that Seller
has filed an appeal with respect to Taxes affecting the Property for 1996.
Seller currently has paid $178,723.63 on account of 1996 Taxes affecting the
Property. Seller has received notice of a reduction of the 1996 Taxes,
however, such reduction is subject to appeal. Seller agrees to escrow from the
proceeds at Closing an amount equal to the difference between (said amount
being referred to as the "1996 Excess Taxes"): (a) the lower of (i) the Taxes
due and owing for 1996 based on the assessed value sought by DeKalb County
together with all interest due and owing thereon ("Maximum 1996 Taxes") and
(ii) the Taxes due and owing for 1996 based on the assessed value awarded
Seller in connection with the appeal if said appeal becomes final and
non-appealable prior to the Closing Date together with all interest due and
owing thereon ("Reduced 1996 Taxes") and (b) $178,723.63. The aforesaid escrow
(the "Tax Escrow") shall be established with the Atlanta office of the Title
Insurer ("Tax Escrowee") and shall be in form and substance reflecting the
terms herein and otherwise reasonably acceptable to Purchaser and Seller. The
Tax Escrow shall provide that at such time as the 1996 Excess Taxes become due
and payable in accordance with the applicable DeKalb County laws and
ordinances, Purchaser may deliver written notice of such to Seller and Tax
Escrowee. Within fourteen (14) days after receipt of said notice, Tax Escrowee
shall pay to the DeKalb County tax collector the 1996 Excess Taxes with all
interest and penalties imposed thereon, if any. Notwithstanding anything
contained herein to the contrary, the Tax Escrow shall provide that if at any
time prior to the disbursement of the proceeds of the Tax Escrow, Seller
delivers to Purchaser and Tax Escrowee evidence of the final, non-appealable
nature of the 1996 appeal which reduces the 1996 Excess Taxes, Tax Escrowee
shall discharge to Seller within fourteen (14) days after receipt of said
notice an amount equal to the difference between the Maximum 1996 Taxes and the
Reduced 1996 Taxes. Furthermore, the Tax Escrow shall provide that (i)
interest earned on the proceeds shall be disbursed in the same manner as the
proceeds and (ii) and proceeds remaining in the Tax Escrow after the payment of
the 1996 Excess Taxes shall be immediately disbursed to Seller.
Notwithstanding anything contained in the Agreement to the contrary, Seller
shall be entitled to its pro rata share of any refund of Taxes for 1997 and any
such refund received by Purchaser shall be held in trust for Seller. Seller
covenants and agrees to withdraw, and agrees not to file, any appeal for Taxes
for 1997 without the prior consent of Purchaser.
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.
<PAGE>
12.1.3. Certain of the Leases provide for reimbursement to lessor
of maintenance and operation charges, Taxes, insurance and other expenses
(herein collectively referred to as "Maintenance Expenses"). Some Leases
provide for a determination of the tenant's share of Maintenance Expenses on an
annual basis but provide that an estimated amount thereof (either in the
aggregate or for specified components thereof) shall be paid by tenant to
lessor monthly during the course of the year with a final adjustment to be made
after the close of the year when such costs and expenses have been finally
determined. Seller and Purchaser have agreed as follows with respect to
Maintenance Expenses:
(i) Except as hereinafter provided, Seller shall be responsible for
the payment of all Maintenance Expenses attributable to periods of time prior
to the Closing Date (without taking into account "stops" for base years in the
Leases) and Seller shall be entitled to receive and retain all reimbursements
thereof collected from tenants on account thereof with respect to the period
through the Closing Date (taking into account "stops" for base years in the
Leases); and Purchaser shall be responsible for the payment of all Maintenance
Expenses attributable to periods of time from and after the Closing Date
(without taking into account "stops" for base years in the Leases) and
Purchaser shall be entitled to receive and retain from the tenants all
reimbursements thereof collected from tenants on account thereof with respect
to the Closing Date and thereafter (taking into account "stops" for base years
in the Leases).
(ii) 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.
(iii) As a part of the final proration referred to in Section
12.3 hereof:
Maintenance Expenses received from Tenants shall be separately
prorated under each Lease. Upon final determination of Maintenance Expense
owed by a Tenant under its Lease for 1996 and 1997, Seller and Purchaser shall
adjust between themselves amounts owed for such calendar year on account of
Maintenance Expenses, and Seller's allocable share of such Maintenance Expenses
payable by such Tenant shall be equal to an amount determined by multiplying
separately each of the Maintenance Expense received from such Tenant by 100%
for 1996 and by the fraction whose numerator is the number of days in 1997
before the Closing Date, and whose denominator is the total number of days in
1997. Purchaser shall remit to Seller its allocable share, less interim
payments previously retained by Seller, if any, less a pro rata share of costs
of collection paid to third parties, if any. If Seller has retained amounts in
excess of its allocable share, Seller, within fifteen (15) days after notice
from Purchaser of the excess owed Purchaser, shall promptly remit such excess
to Purchaser less a pro rata share of costs of collection, if any paid to third
parties.
<PAGE>
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.
12.1.5. To the extent not covered by Paragraph 12.1.3 annual fees
for those permits and licenses disclosed in Exhibit T 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 cause a reconciliation of the Maintenance
Expenses to occur with the tenants no later than April 15, 1997 (with respect
to 1996) and April 15, 1998 (with respect to 1997) requesting payment in
accordance with the terms of the Lease and shall use reasonable, good faith
efforts in collecting from the tenants any under-payments for Maintenance
Expenses for 1996 and 1997.
12.2. The following adjustments, if any (the "Adjustments"), without
duplication, shall be made:
12.2.1. All security deposits held by Seller as of the Closing Date
shall be paid to Purchaser at the Closing.
12.2.2. All other reasonable expenses normal to the operation and
maintenance of the Property which require payments either in advance or in
arrears for periods which begin prior to the Closing Date or end thereafter
shall be apportioned between Seller and Purchaser as of 11:59 P.M. on the day
preceding the Closing Date.
12.2.3. Purchaser shall receive at Closing a credit equal to the
amount of any unsatisfied obligations for "Outstanding Tenant Improvement and
Commission Obligations" of Seller set forth in Exhibit P. Seller shall receive
a credit, if any, as provided in Paragraphs 25 and 26. 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 P, and (ii) for which Purchaser is assuming the obligations pursuant to
Paragraph 25 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
<PAGE>
of the Prorations and Adjustments, such statements to be delivered three (3)
business days prior to the Closing and adjusted as necessary at the Closing.
The parties shall mutually agree after review thereof by Purchaser that said
closing statement accurately reflects the method of proration set forth in this
Agreement.
12.3.2. Purchaser, in cooperation with Seller, shall prepare, not
later than June 1, 1997 (with respect to 1996) and June 1, 1998 (with respect
to 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. Seller and
Purchaser shall retain such books and records for three (3) years from the
Closing Date.
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 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 June 1, 1997 (with respect to 1996
Maintenance Expenses and delinquent rent and 1997 delinquent rent) and June 1,
1998 (with respect to 1997 Maintenance Expenses), 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 from any tenant
owing Seller an amount equal to or greater than $7,500.00; 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.
<PAGE>
12.5. Paragraph 12 of this Agreement shall survive the Closing and the
delivery and recording of the Deed.
13. RECORDING. Neither this Agreement nor a memorandum thereof shall be
recorded and the act of recording by Purchaser shall be an act of default
hereunder by Purchaser and subject to the provisions of Paragraph 10 hereof.
14. ASSIGNMENT. The Purchaser shall not have the right to assign its interest
in this Agreement without the prior written consent of the Seller. Any
assignment or transfer of, or attempt to assign or transfer, Purchaser's
interest in this Agreement shall be an act of default hereunder by Purchaser
and subject to the provisions of Paragraph 10 hereof. Notwithstanding the
foregoing, Purchaser may assign its interest in this Agreement without the
consent of Seller to any entity in which Purchaser owns a controlling interest
or to an affiliate which is under common control with Purchaser provided that
Purchaser remains liable for and 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, attorneys' 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. Each of the parties hereto represents and warrants that no broker
commission, finder fee or advisory fee is due and payable in connection with
this transaction by reason of any act of the representing party other than a
brokerage fee to Insignia Mortgage and Investment Company (to be paid by
Seller). 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 Mortgage and Investment Company, its
affiliates or subsidiaries. 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 AND WARRANTIES.
16.1. Any reference herein to Seller's knowledge or notice of any matter
or thing shall only mean such knowledge or notice that has actually been
received by James E. Mendelson, senior vice-president of The Balcor Company, or
Tom Molina, the asset manager of the Property (the "Seller's Representatives").
<PAGE>
Tom Molina has been the asset manager of the Property since July 1, 1992. 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 Representatives. A copy of Paragraph 16.2 shall be
delivered to the on-site management of the Property within two (2) days after
the execution by Seller of this Agreement, with a request to advise Tom Molina
within five (5) business days after receipt by the on-site manager as to the
accuracy and truthfulness of the representations and warranties. If the on-site
manager indicates that any of the representations or warranties were incorrect,
Seller shall notify Purchaser as to the response of the on-site manager by ten
(10) business days after the execution by Seller. If the on-site manager
responds that any of the representations or warranties were incorrect then the
terms of Paragraph 16.4 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. Seller hereby represents
and warrants to Purchaser, which representations, warranties and covenants
shall be deemed independently material and relied on by Purchaser and which
shall be deemed repeated and made as of the Closing Date and survive the
Closing for a period of nine (9) months (i.e., the claiming party shall have no
right to make any claims against the other party for a breach of a
representation or warranty after the expiration of nine (9) months immediately
following Closing), as follows:
16.2.1. Power and Authority. Seller is a limited partnership, duly
organized and validly existing under the laws of the State of Illinois. Seller
has the power and authority to enter into this Agreement, to perform its
obligations under this Agreement, and to consummate the transactions
contemplated herein. The execution and delivery hereof and the performance by
Seller of its obligations hereunder will not violate or constitute an event of
default under any material term or material provision of any agreement,
document, instrument, judgment, order or decree to which Seller is a party or
by which Seller is bound. No petition in bankruptcy (voluntary or otherwise),
assignment for the benefit of creditors, or petition seeking reorganization or
arrangement or other action under federal or state bankruptcy laws is pending
against or contemplated by Seller.
16.2.2. Authorization; Valid Obligation. Seller has caused all
actions required to be taken by or on behalf of Seller to authorize Seller to
make, deliver and carry out the terms of this Agreement. No consent to the
execution, delivery and performance of this Agreement by Seller is required
from any partner, board of directors, shareholder, creditor, investor, judicial
or administrative body, government authority (excluding any governmental
authority solely applicable to Purchaser) or other person or entity, other than
any such consent which already has been unconditionally given. This Agreement
is a valid and binding obligation of Seller, enforceable in accordance with its
terms, except as the same may be affected by bankruptcy, insolvency, moratorium
or similar laws, or by legal or equitable principles relating to or limiting
the rights of contracting parties generally.
<PAGE>
16.2.3. Space Leases.
(a) To Seller's knowledge, the rent roll attached hereto as
Exhibit N (the "Rent Roll") contains a true, correct and complete list of all
leases and other agreements in respect thereof, all as amended, renewed and
extended to the date thereof, whether oral or written, specifying correctly and
completely the following as to each Lease:
(i) a description (by rentable square feet and location)
of the leased space;
(ii) the name of the original and current lessee or any
other occupant of the space (each, a "Lessee");
(iii) the commencement and expiration dates of the original
Lease and any renewal terms thereof;
(iv) the basic rent (collectively, "Rents"), and a
specification of the dates on which each payment thereof is due and through
which each has been paid and the extent of any delinquencies thereof;
(v) all Rents prepaid by the Lessee;
(vi) all options which Lessee has, including, without
limitation, options to expand or change space, to extend or renew the term of
the Lease; and
(vii) the security deposit (the "Security Deposit") given by
the Lessee and the interest accrued thereof, if any.
(b) To Seller's knowledge, each Security Deposit has been and
is held by Seller in compliance with the respective Lease and applicable law.
To Seller's knowledge, there are no unfulfilled obligations as to Security
Deposits to Lessees under Leases the terms of which have expired or been
terminated and, to Seller's knowledge, there is no suit, action or other claim
made, pending or threatened with respect to any such Security Deposit.
(c) Except as otherwise noted in the Rent Roll or in the Leases
delivered to Purchaser, to Seller's knowledge, the following is true with
respect to each Lease:
(i) no Lease contains any purchase option;
(ii) no guarantor has been released or discharged,
voluntarily or involuntarily or by operation of law, from any obligation with
respect to the Lease that is guaranteed;
(iii) no Rents have been assigned, pledged or encumbered
except for encumbrances to be extinguished at or prior to Closing; and
(iv) Except as set forth on Exhibit P, all brokerage
commissions, if any, applicable to the Leases have been paid or will be paid by
the Seller on or before Closing Date and all tenant improvement obligations of
Seller as lessor under the Leases have been satisfied.
<PAGE>
(d) To Seller's knowledge, no Security Deposit has been
applied by Seller on account of any actual or purported obligation of any
Lessee except as indicated on the Rent Roll and after the expiration of the
Inspection Period, Seller shall not apply any Security Deposit on account of
any actual or purported obligation of any Lessee prior to the Closing unless
such Lessee has vacated and surrendered its leased premises to Seller prior to
the Closing.
(e) To Seller's knowledge, no Lessee has been given any
concession or consideration for the rental of any portion of its demised
premises which will have any material effect upon the rental income represented
by Seller hereunder (except as set forth in the Leases); and to Seller's
knowledge, no Lessee is entitled hereafter to any concession, rebate, allowance
or free rent for any period on or after the date hereof, except as set forth in
the Leases.
(f) To Seller's knowledge, Seller has not received any notice
of a default on the part of Lessor from any tenant under its Lease which
default remains uncured.
16.2.4. Service Contracts. (a) To Seller's knowledge, there are no
service contracts, landscaping contracts, maintenance agreements or other
contracts for the provision of labor, services, materials or supplies to or for
the benefit of the Property which will affect or be obligations of Purchaser or
of the Property or any portion thereof following the Closing Date, other than
those listed on Exhibit I, (the "Service Contracts"), to Seller's knowledge,
true and complete copies of which have been provided to Purchaser; (b) to
Seller's knowledge, there are no leases, rental or other agreements for the use
of any of the Personal Property which will affect or be obligations of
Purchaser or of the Property or any portion thereof following the Closing Date
except as set forth on Exhibit I attached hereto; (c) to Seller's knowledge,
except as shown on the copies of the Service Contracts heretofore delivered
there are no amendments to said Service Contracts; and (d) to Seller's
knowledge, no material uncured default exists under any Service Contract.
16.2.5. Litigation. There is no pending or, to Seller's knowledge,
threatened litigation which is or could become a liability of the Property or
any portion thereof other than as shown on Exhibit Q hereto, if any.
16.2.6. Government Regulation. Except as set forth on Exhibit R
hereto, to Seller's knowledge, Seller has not received any written notice from
any Governmental Authority that the Property or any portion thereof is in
violation of any law, regulation, ordinance, order or other requirements
materially affecting the Property or any portion thereof, which notice remains
uncured.
16.2.7. Condemnation. To Seller's knowledge, Seller has not
received any written notice that the Property or any portion thereof is or will
be imminently subject to or affected by any condemnation, eminent domain or
similar proceedings.
16.2.8. Options. To Seller's knowledge, there are no options or
rights of first refusal affecting the Property (except as contained in the
Leases) or Seller's right to complete the transactions contemplated by this
Agreement.
<PAGE>
16.2.9. Insurance Company Notices. Seller has not received any
written notice from any insurance company requiring or recommending that Seller
make any repairs or perform any work on or at the Land or the Improvements,
which has not been completed.
16.2.10. Employees. There are no employees of Seller at the
Property who would become employees of Purchaser by virtue of the transactions
contemplated by this Agreement.
16.2.11. Certificates of Occupancy. To Seller's knowledge, annexed
hereto as Exhibit S is a true, accurate and complete copy of all of the
Certificates of Occupancy in Seller's possession for the Improvements.
16.2.12. Permits. To Seller's knowledge, annexed hereto as Exhibit
T is a true, accurate and complete schedule of all of the permits and licenses
(collectively, "Permits") in Seller's possession for the Improvements. To
Seller's knowledge, Seller has received no notice of revocation, which
revocation has not been cured or rescinded, from any issuer of a Permit, except
that the Permits expired on their own terms as a matter of local custom as of
December 31, 1996 and, Seller has no knowledge of any facts which would lead
Seller to believe that said permits will not be re-issued for 1997 in the
ordinary course.
16.2.13. Title to Personal Property. Purchaser shall own on the
Closing Date all items of personal property set forth on Exhibit B.
16.2.14. Seller and Purchaser each hereby represents to the other
party that to the representing party's knowledge, there is no reason to believe
that any representation or warranty made by such party in this Agreement or any
conveyance document delivered by such party pursuant to Paragraphs 9.2.1
through 9.2.7, both inclusive, 9.2.10 and 9.2.11 herein contains an untrue
statement of a material fact or omits to state a material fact necessary in
order to make such representation or warranty, in light of the circumstances
under which they were made, not misleading.
16.3. Purchaser hereby represents and warrants to Seller as follows:
16.3.1. Power and Authority. Purchaser is a corporation, duly
organized, validly existing and in good standing under the laws of the State of
Delaware; Purchaser has the power and authority to enter into this Agreement,
to perform its obligations hereunder and to consummate the transactions
contemplated herein; neither the execution and delivery hereof by Purchaser nor
the performance by Purchaser of Purchaser's obligations hereunder will violate
or constitute an event of default under any material terms or material
provision of any decree to which Purchaser is a party or by which Purchaser is
bound. No petition in bankruptcy (voluntary or otherwise), assignment for the
benefit of creditors, or petition seeking reorganization or arrangement or
other action under federal or state bankruptcy laws is pending against or
contemplated by Purchaser.
16.3.2. Authorization; Valid Obligation. All actions required to be
taken by or on behalf of Purchaser to authorize Purchaser to execute and
deliver this Agreement have been duly taken and all actions required to be
<PAGE>
taken by or on behalf of Purchaser to authorize Purchaser to carry out the
terms of this Agreement will be taken prior to the time such obligation herein
must be performed. No consent to the execution, delivery and performance of
this Agreement by Purchaser is required from any partner, board of directors,
shareholder, creditor, investor, judicial or administrative body, Governmental
Authority or other Person, other than any such consents which already have been
unconditionally given. This Agreement is a valid and binding obligation of
Purchaser, enforceable in accordance with its terms, except as the same may be
affected by bankruptcy, insolvency, moratorium or similar laws, or by legal or
equitable principles relating to or limiting the rights of contracting parties
generally.
16.4. 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 to become 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 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 16.5,
Paragraph 16.6 or Paragraph 25 herein, then Purchaser shall not have the right
to terminate this Agreement or make any claim for a breach of a representation
or warranty hereunder involving the rent roll or tenancies thereunder.
Purchaser and Seller are prohibited from making any claims against the other
party hereto after the Closing with respect to any breaches of the other
party's representations and warranties contained in this Agreement that the
claiming party has actual knowledge of prior to the Closing. For the purpose
of this Paragraph 16.4, Purchaser's knowledge will be limited solely to the
knowledge of Wayne Comer after review of all due diligence materials prepared
by or for Purchaser in connection with the acquisition of the Property.
16.5. On the Closing Date, Seller shall tender possession of the
Property to Purchaser in the same condition the Property was in on the date of
this Agreement, subject to reasonable use, wear and tear and, subject to
Paragraph 6 hereof, but Seller shall not be required to incur any capital
expenses from or after the date hereof unless failure to do so would constitute
a material breach under any of the Leases. Subject to the provisions of
Paragraph 25 hereof, Seller agrees that between the date hereof and the Closing
Date it shall continue to operate the Property in substantially the same manner
it has operated the Property prior to the date hereof, subject to reasonable
wear and tear and casualty.
<PAGE>
16.6. Seller covenants and agrees that from and after the date of this
Agreement until the Closing Date or earlier termination of this Agreement:
16.6.1. 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 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.
16.6.2. No alterations to the physical condition of the Premises
will be made without the prior written consent of Purchaser, except for (a)
work required (if any) to be performed by Seller under an existing Lease, and
(b) restoration work in connection with a casualty.
16.6.3. No refurbishment to the Personal Property costing in excess
of an aggregate amount of Twenty-Five Thousand Dollars ($25,000.00) will be
made without the prior written consent of Purchaser, which approval shall not
be unreasonably withheld, delayed, or conditioned except for (a) work required
to be performed or materials provided by Seller under an existing Lease and (b)
refurbishment in connection with a casualty; provided that all such work can be
completed prior to the Closing Date.
16.6.4. All necessary diligence will be used to keep in full force
and effect (or to renew, when necessary) all Permits.
16.6.5. None of the Personal Property will be repaired, replaced or
removed from the Property except in the ordinary course of business; provided
in the case of such removal, the removed Personal Property shall be replaced
with Personal Property of equivalent value and utility.
16.6.6. Seller shall promptly notify Purchaser of (a) any written
notices received by Seller from any governmental authority regarding violation
of any law relating to the Property, and (b) any written notice received by
Seller of any material default by Seller or by the other party thereto existing
under any Service Contract of any Lease.
17. LIMITATION OF LIABILITY.
17.1. Neither Seller's partners 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
<PAGE>
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
$1,000,000.00. In addition, Seller's maximum aggregate liability shall be
increased by an amount up to $100,000.00 in order to compensate Purchaser
pursuant to Paragraph 37 hereof. Purchaser hereby waives for itself and anyone
who may claim by, through or under Purchaser any and all rights to sue or
recover from Seller any amount greater than said limit.
17.3. Seller further agrees not to distribute $1,100,000.00 of the
proceeds of the Purchase Price to its partners for the longer of (i) nine (9)
months after the Closing and (ii) final resolution of any claims by Purchaser
and asserted in writing against Seller prior to the expiration of the nine (9)
months after the Closing in accordance with the terms of this Agreement
("Claims"); provided, however, that if any Claims are disputed by Seller,
Seller shall have the right, by written notice to Purchaser, to require
Purchaser to file suit in a court of competent jurisdiction within thirty (30)
days after such notice to Purchaser; otherwise said notice with respect to the
Claim in question shall no longer prevent Seller from distributing the
proceeds.
18. TIME OF ESSENCE. Time is of the essence of this Agreement, subject to
Purchaser's right to extend the Closing Date to a date no later than February
28, 1997 as specifically set forth in Paragraph 8 herein.
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 addressed as follows:
TO SELLER: c/o The Balcor Company
Bannockburn Lake Office Plaza
2355 Waukegan Road
Suite A-200
Bannockburn, Illinois 60015
Attention: Ms. Ilona Adams
with copies to: The Balcor Company
Bannockburn Lake Office Plaza
2355 Waukegan Road
Suite A-200
Bannockburn, Illinois 60015
Attention: Mr. James Mendelson
(847) 317-4367
(847) 317-4462 (FAX)
and to: Katten Muchin & Zavis
525 West Monroe Street
Suite 1600
Chicago, Illinois 60661-3693
Attention: Daniel J. Perlman, Esq.
(312) 902-5532
(312) 902-1061 (FAX)
<PAGE>
TO PURCHASER: Acquiport Ashford Center North, Inc.
c/o J.P. Morgan Investment Management Inc.
522 5th Avenue, 9th Floor
New York, New York 10036
Attention: Mr. Wayne A. Comer
(212) 837-1228
(212) 837-2604(FAX)
and one copy to: Willkie Farr & Gallagher
153 E. 53rd Street
New York, New York 10022
Attention: Monty Davis, Esq.
(212) 821-8204
(212) 821-8111 (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 or if sent by overnight
courier, or the same day as given if personally delivered or if sent by
facsimile transmission and received by 5:00 p.m. Chicago time. Any such
notice, demand or document may be given by each party's attorneys.
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. Seller will forward one (1) copy of the
executed Agreement to Purchaser and will forward the following to the Escrow
Agent:
(A) One (1) fully executed copy of this Agreement; and
(B) Three (3) copies of the Escrow Agreement signed by the parties with a
direction to execute two (2) copies of the Escrow Agreement and deliver a fully
executed copy to each of the Purchaser and the Seller.
Purchaser shall deposit by wire transfer of immediately available funds the
Earnest Money to the "Escrow Agent" under the Escrow Agreement within five (5)
business days after Seller's acceptance of this Agreement.
21. GOVERNING LAW. The provisions of this Agreement shall be governed by the
laws of Georgia.
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.
<PAGE>
25. NEW LEASES. Seller agrees to deliver to Purchaser five (5) days prior to
the expiration of the Inspection Period any new leases executed by Seller.
After the expiration of the Inspection Period, Seller shall not execute any new
lease affecting the Property or modify, amend or accept the surrender
(collectively or individually a "Modification Agreement") of any of the Leases
without Purchaser's prior written consent, which consent shall not be
unreasonably withheld. Upon requesting Purchaser's consent, Seller shall
deliver a complete copy of said proposed lease to Purchaser with a copy of any
brokerage commission agreement and statement as to the cost of any tenant
improvement work, contributions, and brokerage commissions due or to become due
in connection therewith (the "Disclosure Documents"). Purchaser's consent
shall be deemed given if Purchaser has not responded to the contrary within
five (5) business days after receipt of Seller's written request and the
complete copy of said lease or Modification Agreement and the Disclosure
Documents. If approved by Purchaser, a complete copy of any such lease or
Modification Agreement shall be delivered to Purchaser within five (5) days of
the full execution thereof. With respect to all new leases or Modification
Agreement executed and delivered to Purchaser five (5) days prior to the
expiration of the Inspection Period and with respect to all other new leases or
Modification Agreement, provided Purchaser has approved the new lease to the
extent said approval is required, leasing costs and commissions, tenant
improvements and contributions, and reasonable attorneys' fees, shall be paid
by Purchaser or credited to Seller at Closing if already paid by Seller
provided such costs and expenses were specifically disclosed to Purchaser in
the Disclosure Documents.
26. TENANT CERTIFICATE CONDITION TO CLOSING.
26.1. 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 M hereto or on such other form as is
substantially consistent with the requirements of the tenant's lease for such
certificates.
(ii) "Qualification" means any assertion in a Tenant Certificate
(whether in the form of Exhibit M or otherwise) of (i) a claim, counterclaim,
offset or defense against the lessor, (ii) a default on the part of the lessor,
(iii) unpaid credits, allowances or other sums due from the lessor prior to the
date of the estoppel (other than expressly disclosed on Exhibit N or Exhibit P
attached hereto or pursuant to a new lease pursuant to Paragraph 25 herein),
(iv) an unfulfilled construction or other obligation on the part of the lessor
prior to the date of estoppel (other than expressly disclosed on Exhibit N or
Exhibit P attached hereto or pursuant to a new lease pursuant to Paragraph 25
herein), or (v) information which is contrary (x) to the information contained
in the rent roll attached hereto as Exhibit N, (y) the information pertaining
to tenant allowances and concessions and leasing commissions contained on
Exhibit P, or (z) the information contained in the prepared Tenant Certificates
attached hereto as Exhibit U (the "Prepared Tenant Certificates").
<PAGE>
(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 N or the schedule attached hereto as Exhibit P
or a Qualification relating to non-payment of December, 1996 or January or
February, 1997 rent, provided the same is not as a result of a default by
Seller; or
(b) a Qualification expressly disclosed in this Agreement or
the Exhibits attached hereto and made a part hereof, such as litigation
disclosed on Exhibit Q.
26.2. 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.
26.3. Seller shall promptly request a Tenant Certificate in the form
of Exhibit M from all tenants, and shall in good faith pursue the collection of
the same. Seller shall deliver to Purchaser, upon Seller's receipt thereof,
all Tenant Certificates which have actually been signed by tenants (whether in
the form of Exhibit M or otherwise).
26.4. 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 February 11, 1997 (i) a Tenant Certificate from each
tenant of the Property occupying or leasing at least 10,000 square feet as
shown on the Rent Roll, in the aggregate, of leasable area of the Property
("Major Tenant"), and (ii) a Tenant Certificate from non-Major Tenants
occupying seventy-five percent (75%) of the leased area of the Property not
occupied by the Major Tenants. Notwithstanding the foregoing to the contrary,
Seller shall not have satisfied the Estoppel Condition if the Tenant
Certificates received by Seller disclose Unacceptable Qualifications other than
Unacceptable Qualifications with an "Estoppel Qualification Sum" (hereinafter
defined) of less than $100,000 in the aggregate for all of the Leases. The
"Estoppel Qualification Sum" shall mean the following:
(i) if the claim asserted arises out of a defect which can be cured,
with the expenditure of money on a one time basis, such as a physical defect,
then such sum shall be calculated by a reasonable estimate of the cost to
repair or remediate said defect; and
(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 (i) determining the amount of the claim on a per annum basis,
(ii) multiplying said amount by the number of years or partial years said claim
would affect the monetary obligations under the lease and (iii) only if such
claim relates to the payment of rent, then discounting said product on a
present value basis using a discount rate of 10% per annum.
If the Unacceptable Qualifications have an Estoppel Qualification Sum of
less than $100,000 in the aggregate for all of the Leases, then Seller shall
<PAGE>
either (i) grant Purchaser a credit at Closing for an amount equal 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 in its sole discretion. Provided Seller
performs its covenant in this Paragraph 26.4, the disclosure of Unacceptable
Qualifications having an Estoppel Qualification Sum of less than $100,000 in
the aggregate shall not affect Purchaser's obligations to close hereunder or
give rise to any additional liability from Seller to Purchaser.
26.5. If Seller has not satisfied the Estoppel Condition on or before
5:00 p.m. Chicago time on February 11, 1997, then Purchaser shall have the
right to terminate this Agreement by delivering written notice to Seller on or
before 5:00 p.m. Chicago time on February 14, 1997. If Purchaser exercises its
rights to terminate in accordance with the terms of this Paragraph 26.5, 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 those obligations which
specifically survive the terms hereof. If Purchaser does not terminate this
Agreement pursuant to the first sentence of this Paragraph 26.5, 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 $100,000 or (ii) Seller shall cure all conditions giving rise to an
Unacceptable Qualification Sum up to an aggregate amount of $100,000. The
determination to perform the covenant contained in subparagraphs (i) or (ii) in
the preceding sentence shall be made by Seller in its sole discretion.
27. PUBLICITY. Neither party shall make any announcements or issue any press
releases which refer to the other party or any affiliate of the other party
without the express written consent of the other party.
28. AMENDMENT. No provision of this Agreement or of any documents or
instruments entered into, given or made pursuant to this Agreement may be
amended, charged, waived, discharged or terminated except by an instrument in
writing signed by the party against whom enforcement of the amendment, change,
waiver, discharge or termination is sought.
29. PARTIES. The covenants and agreements herein contained shall extend to
and be obligatory upon the heirs, executors, administrators, successors and
assigns of the respective parties hereto.
30. NUMBER AND GENDER OF WORDS. Words of any gender used in this Agreement
shall be held and construed to include any other gender, and words of a
singular number shall be held to include the plural and vice versa, unless the
context requires otherwise.
31. THIRD PARTIES. Nothing in this Agreement, express or implied, is intended
to confer upon any person, other than the parties hereto and their respective
heirs, executors, administrators, successors and assigns, any rights or
remedies under or by reason of this Agreement.
<PAGE>
32. FURTHER ASSURANCE. Each of Seller and Purchaser will, at any time and
from time to time after the Closing Date, upon the request of the other,
execute, acknowledge and deliver, or will cause to be done, executed,
acknowledged and delivered all such further acts, deeds, assignments,
transfers, conveyance, and assurance as may reasonably be required to
consummate the transactions described herein. The provisions of this Paragraph
shall survive the Closing.
33. EXHIBITS. All exhibits described in this Agreement and attached hereto
are by this reference incorporated fully herein. The term "this Agreement"
shall be considered to include all such exhibits.
34. INVALID PROVISIONS. If any provision of this Agreement is held to be
illegal, invalid or unenforceable under present or future laws, such provision
shall be fully severable; this Agreement shall be construed and enforced as if
such illegal, invalid or unenforceable provisions had never comprised a part of
this Agreement; and the remaining provisions of this Agreement shall remain in
full force and effect and shall not be affected by the illegal, invalid or
unenforceable provision or buy it severance from this Agreement. Furthermore,
in lieu of such illegal, invalid or unenforceable provision, there shall be
added automatically as a part of this Agreement a provision as similar in terms
to such illegal, invalid or unenforceable provision as may be possible and be
legal, valid and enforceable.
35. INTERPRETATION. The parties agree that each party and its counsel have
reviewed and revised this Agreement and that the normal rule of construction to
the effect that any ambiguities are to be resolved against the drafting party
shall not be employed in the interpretation of this Agreement or any amendments
hereto.
36. NO WAIVER. No failure of any party to exercise any power given such party
hereunder or to insist upon strict compliance by the other party with its
obligations hereunder shall constitute a waiver of such party's right
thereafter to demand strict compliance with the terms of this Agreement.
37. ATTORNEYS' FEES. In the event of a dispute in connection with this
Agreement involving an action for damages in which the prevailing party
recovers a final judgment, the prevailing party shall be entitled to reasonable
attorneys' fees and all other expenses of litigation, up to an aggregate
maximum amount of $100,000.00 for all actions for damages arising under this
Agreement, and the attorneys' fees and all other expenses of litigation shall
be included in and made part of any such judgment.
38. ADVISOR FEE. Purchaser hereby agrees to pay J.P. Morgan Investment
Management, Inc. ("Purchaser's Advisor") a fee for Purchaser's Advisor's
services as a real estate advisor.
[EXECUTION PAGE TO FOLLOW]
<PAGE>
IN WITNESS WHEREOF, the parties hereto have put their hand and seal as of
the date first set forth above.
PURCHASER:
ACQUIPORT ASHFORD CENTER NORTH, INC.,
a Delaware corporation
By: /s/ Wayne A. Comer
--------------------------------------
Name: Wayne A. Comer
--------------------------------------
Its: Vice President
--------------------------------------
SELLER:
ASHFORD-DUNWOODY LIMITED PARTNERSHIP, an
Illinois limited partnership
By: Balcor Equity Partners-II, an Illinois
general partnership, its general partner
By: The Balcor Company, a Delaware corporation,
its general partner
By: /s/ James E. Mendelson
------------------------------------
Name: James E. Mendelson
------------------------------------
Its: Authorized Representative
------------------------------------
<PAGE>
100 Ashford
Atlanta, Georgia
of Insignia Mortgage and 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 9/5, 1996 between Seller and Seller's Broker (the "Listing
Agreement"). Seller's Broker also acknowledges that payment of the aforesaid
fee or commission is conditioned upon the Closing and the receipt of the
Purchase Price by the Seller. Seller's Broker agrees to deliver a receipt to
the Seller at the Closing for the fee or commission due Seller's Broker and a
release, in the appropriate form, stating that no other fees or commissions are
due to it from Seller or Purchaser.
INSIGNIA MORTGAGE AND INVESTMENT COMPANY
By: /s/ Alan G. Lieberman
---------------------------------
Name: Alan G. Lieberman
---------------------------------
Its: Senior Vice President
---------------------------------
<PAGE>
Wayne A. Comer of J.P. Morgan Investment Management, Inc. ("Purchaser's
Advisor") executed this Agreement in its capacity as a real estate advisor and
acknowledges that the fee due it from Purchaser as a result of the transaction
is in Purchaser's Advisor's capacity as a real estate advisor.
J.P. MORGAN INVESTMENT MANAGEMENT, INC.
By: /s/ Wayne A. Comer
---------------------------------
Name: Wayne A. Comer
---------------------------------
Its: Vice President
---------------------------------
<PAGE>
Exhibits
A - Legal
B - Personal Property
C - Escrow Agreement
D - Title Commitment
E - Permitted Exceptions
F - Deed
G - Special Warranty Bill of Sale
H - Assignment and Assumption of Intangible Property
I - Service Contracts
J - Assignment and Assumption of Leases and Security Deposits
K - Non-Foreign Affidavit
L - Notice to Tenants
M - Tenant Estoppel Certificate
N - Rent Roll
O - Intentionally Omitted
P - Leasing Commissions and Tenant Improvements
Q - Litigation
R - Government Notices
S - Certificates of Occupancy
T - Permits and Licenses
U - Prepared Tenant Certificates
<PAGE>
FIRST AMENDMENT TO AGREEMENT OF SALE
(Ammendale I)
THIS FIRST AMENDMENT TO AGREEMENT OF SALE (this "Amendment") is entered
into as of the 27th day of December, 1996, by and between WRIT LIMITED
PARTNERSHIP ("Purchaser") and AMMENDALE LIMITED PARTNERSHIP ("Seller").
W I T N E S S E T H:
A. Purchaser and Seller have heretofore entered into a certain Agreement
of Sale (Ammendale I) dated November 29, 1996 ("Agreement") for the purchase
and sale of the property commonly known as Lot 5, Ammendale Business Campus,
located in Beltsville, Maryland (the "Premises"). Capitalized terms used
herein and not otherwise defined shall have the meanings set forth in the
Agreement.
B. In inspecting the Premises during the Inspection Period, Purchaser
has identified certain hazardous materials or substances (the "Andrulis
Contamination") located in that portion of the Premises commonly known as Suite
113, 11800 Baltimore Avenue (the "Andrulis Premises").
C. Purchaser and Seller now desire to amend the Agreement as follows:
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree
as follows:
1. The end of the Inspection Period shall be 5:00 p.m. Chicago time on
January 16, 1997 (the "Inspection Termination Date").
2. If as of the Inspection Termination Date both (a) Seller has not
delivered to Purchaser a letter from a certified environmental consultant
reasonably acceptable to Purchaser stating that the Andrulis Premises is
environmentally fit for use by a new tenant, and (b) Purchaser has exercised
its right to terminate the Agreement pursuant to Section 7.1 of the Agreement,
then, Seller shall reimburse Purchaser up to an aggregate amount of $10,000 for
all aggregate out-of-pocket costs incurred by Purchaser to independent third
party contractors for work done in connection with Purchaser's inspection of
the Premises and the Premises described in the Ammendale II Contract, provided
such costs are incurred by Purchaser between December 20, 1996 and the
Inspection Termination Date or such sooner date as Purchaser terminates the
Agreement pursuant to the terms of Section 7.1 thereof (the "Inspection
Costs"). Seller shall make such reimbursement to Purchaser within five (5)
days after the Inspection Termination Date provided that Purchaser has
delivered to Seller paid invoices or other reasonable evidence of the
Inspection Costs.
3. Except as specifically modified herein, the terms and conditions of
the Agreement shall remain unchanged and in full force and effect.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of
the date first set forth above.
PURCHASER:
WRIT LIMITED PARTNERSHIP
By: Washington Real Estate Investment Trust,
General Partner
By: /s/ Thomas L Regnell
-----------------------------------
Name: Thomas L. Regnell
-----------------------------------
Its: Vice President
-----------------------------------
SELLER:
AMMENDALE LIMITED PARTNERSHIP
By: Ammendale Partners, Inc.,
its general partner
By: /s/ John K. Powell, Jr.
-------------------------------------
Name: John K. Powell, Jr.
-------------------------------------
Its: Senior Vice President
-------------------------------------
<PAGE>
SECOND AMENDMENT TO AGREEMENT OF SALE
(Ammendale I)
THIS SECOND AMENDMENT TO AGREEMENT OF SALE (this "Amendment") is entered
into as of the 15th day of January, 1997, by and between WRIT LIMITED
PARTNERSHIP ("Purchaser") and AMMENDALE LIMITED PARTNERSHIP ("Seller").
W I T N E S S E T H:
A. Purchaser and Seller have heretofore entered into a certain Agreement
of Sale (Ammendale I) dated November 29, 1996 (as amended, the "Agreement") for
the purchase and sale of the property commonly known as Lot 5, Ammendale
Business Campus, located in Beltsville, Maryland (the "Premises"). Capitalized
terms used herein and not otherwise defined shall have the meanings set forth
in the Agreement.
B. Purchaser and Seller now desire to amend the Agreement as follows:
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree
as follows:
1. The end of the Inspection Period shall be 5:00 p.m. Chicago time on
January 23, 1997.
2. The Closing Date, as defined in Paragraph 8 of the Agreement, shall
be changed to February 19, 1997.
3. The Escrow Agreement is hereby modified to conform with 1 and 2.
4. Except as specifically modified herein, the terms and conditions of
the Agreement shall remain unchanged and in full force and effect.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of
the date first set forth above.
PURCHASER:
WRIT LIMITED PARTNERSHIP
By: Washington Real Estate Investment Trust,
General Partner
By: /s/ Thomas L. Regnell
-------------------------------------
Name: Thomas L. Regnell
-------------------------------------
Its: Vice President
-------------------------------------
SELLER:
AMMENDALE LIMITED PARTNERSHIP
By: Ammendale Partners, Inc.,
its general partner
By: /s/
-------------------------------------
Name:
-------------------------------------
Its:
-------------------------------------
<PAGE>
THIRD AMENDMENT TO AGREEMENT OF SALE
(Ammendale I)
THIS THIRD AMENDMENT TO AGREEMENT OF SALE (this "Amendment") is entered
into as of the 23rd day of January, 1997, by and between WRIT LIMITED
PARTNERSHIP ("Purchaser") and AMMENDALE LIMITED PARTNERSHIP ("Seller").
W I T N E S S E T H:
A. Purchaser and Seller have heretofore entered into a certain Agreement
of Sale (Ammendale I) dated November 29, 1996 (as amended, the "Agreement") for
the purchase and sale of the property commonly known as Lot 5, Ammendale
Business Campus, located in Beltsville, Maryland (the "Premises"). Capitalized
terms used herein and not otherwise defined shall have the meanings set forth
in the Agreement.
B. Purchaser and Seller now desire to amend the Agreement as follows:
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree
as follows:
1. The Purchase Price as defined in Paragraph 1 of the Agreement, is
hereby changed to $7,732,000.
2. The end of the Inspection Period shall be 5:00 p.m. Chicago time on
January 30, 1997.
3. The following terms are added to Paragraph 21 of the Agreement as new
subparagraphs (e) and (f) thereof:
"(e) Seller shall deliver to Purchaser on or before February 13, 1997 a
letter from a certified environmental consultant reasonably acceptable to
Purchaser stating that the portion of the Premises commonly known as Suite 113,
11800 Baltimore Avenue is environmentally clean and fit for use by a tenant.
(f) Seller shall deliver to Purchaser on or before the Closing Date, a
Certificate of Occupancy for the building commonly known as 12240 Baltimore
Avenue."
4. The following provision shall be added as a new last sentence to
Paragraph 21 of the Agreement:
"Notwithstanding anything contained in this Article 21, if (x) the
condition set forth in either subparagraph (e) or subparagraph (f) above is not
satisfied by the date required hereunder and (y) Seller or Purchaser requests
an additional period of thirty (30) days for Seller to satisfy such condition,
Purchaser shall not have the right to terminate this Agreement under this
Section 21 unless such thirty (30) day period passes and such condition remains
unsatisfied. Provided any such condition is satisfied within the thirty (30)
day period, the Closing Date shall occur on the business day which is nearest
the tenth (10th) day after the last of the satisfied of either such condition."
<PAGE>
5. If both (a) Seller has not delivered the letter referenced in
subparagraph 21(e) of the Agreement within the period set forth in Article 21
of the Agreement as such period may be extended as set forth above, and (b)
Purchaser has exercised its right to terminate the Agreement pursuant to
Article 21 of the Agreement, then, Seller shall reimburse Purchaser up to an
aggregate amount of $10,000 for all aggregate out-of-pocket costs incurred by
Purchaser to independent third party contractors for work done in connection
with Purchaser's inspection of the Premises and the Premises described in the
Ammendale II Contract, provided such costs are incurred by Purchaser between
December 20, 1996 and January 30, 1997 (the "Inspection Costs"). Seller shall
make such reimbursement to Purchaser within five (5) days after the Agreement
is terminated provided that Purchaser has delivered to Seller paid invoices or
other reasonable evidence of the Inspection Costs. This paragraph replaces and
supercedes Paragraph 2 of the First Amendment to Agreement and Sale dated
December 23, 1996 which provision is of no further force and effect.
6. The Escrow Agreement is hereby modified to conform with the terms of
this Amendment.
7. Except as specifically modified herein, the terms and conditions of
the Agreement shall remain unchanged and in full force and effect.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of
the date first set forth above.
PURCHASER:
WRIT LIMITED PARTNERSHIP
By: Washington Real Estate Investment Trust,
General Partner
By: /s/ Thomas L. Regnell
---------------------------------------
Name: Thomas L. Regnell
---------------------------------------
Its: Vice President
---------------------------------------
SELLER:
AMMENDALE LIMITED PARTNERSHIP
By: Ammendale Partners, Inc., its general
partner
By: /s/ Jerry M. Ogle
-------------------------------------
Name: Jerry M. Ogle
-------------------------------------
Its: Managing Director and Secretary
-------------------------------------
<PAGE>
