SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 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): May 30, 1996
JMB MORTGAGE PARTNERS, LTD. - III
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(Exact name of registrant as specified in its charter)
Illinois 0-16253 36-3346551
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(State or other) (Commission (IRS Employer
Jurisdiction of File Number) Identification No.)
Organization
900 N. Michigan Avenue, Chicago, Illinois 60611-1575
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(Address of principal executive office)
Registrant's telephone number, including area code: (312) 915-1987
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CALIBRE POINTE APARTMENTS
Atlanta, Georgia
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ITEM 2. ACQUISITION OR DISPOSITION OF ASSETS. JMB Mortgage Partners, Ltd.
- - III (the "Partnership") together with its affiliated lender, JMB Mortgage
Partners, Ltd. - IV, had acquired title to the Calibre Pointe Apartments
(the "Property"), a 214-unit apartment complex located in Atlanta, Georgia
pursuant to foreclosure action in December 1991 and contributed such
property to Calibre Pointe Associates General Partnership (the "Venture").
On May 30, 1996, the Venture sold the land and related improvements of the
Property pursuant to a purchase agreement reached in April 1996 between the
Venture and purchaser, Security Capital Atlantic Incorporated, a Maryland
corporation. The purchaser is not affiliated with the Partnership or its
General Partners and the sale price was determined by arm's-length
negotiations. The sale price by the Venture of the land and improvements
was $14,450,000 before selling costs and prorations. The sale resulted in
a gain to the Venture of approximately $2,700,000 and $2,200,000 for
financial reporting purposes and Federal income tax purposes in 1996,
respectively, of which approximately $1,681,000 and $1,370,000 was
allocated to the Partnership pursuant to the Venture agreement. Occupancy
at the Property was approximately 99% at the date of sale. The Partnership
expects to distribute its approximate 62.264% share of the net proceeds
from this sale net, of any necessary working capital reserve in 1996.
The Partnership Agreement provides that the General Partners are
entitled to receive 3% of all sale and repayment proceeds and a portion of
the remaining 97% of all sale and repayment proceeds. However, upon
completion of the liquidation of the Partnership and final distribution of
all Partnership funds, all previous distributions of sale and repayment
proceeds to the General Partners shall be recontributed to the Partnership
to the extent that the Limited Partners have not received sale and
repayment proceeds equal to their initial capital investment. Since the
Limited Partners are not projected to receive sale and repayment proceeds
equal to their initial capital investment, the General Partners have
deferred their share of any distributions of proceeds from this sale at
this time.
ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS.
(a) Financial Statements. Not applicable.
(b) Pro Forma Financial Information - Narrative.
As a result of the sale of the Property, beyond May 30, 1996, there
will be no further rental and other income, property operating expenses and
depreciation expense recorded for the Property in the consolidated
financial statements of the Partnership, which for the Partnership's most
recent fiscal year (the year ended December 31, 1995) were approximately
$2,191,000, $877,000 and $378,000, respectively. Rental and other income,
property operating expenses and depreciation expense for the Property were
approximately $576,000, $180,000 and $0 for the three months ended March
31, 1996 as the Property was classified in the Partnership's consolidated
financial statements as held for sale as of January 1, 1996. Also, as a
result of the sale of the Property, there are no further assets and
liabilities related to the Property, which at March 31, 1996 consisted of
land, building and improvements (net of accumulated depreciation and
amortization) of approximately $11,584,000; cash and other current assets
of approximately $1,383,000; other current liabilities of approximately
$76,000; and other long-term liabilities of approximately $20,000. The
remaining operations of the Partnership will consist primarily of the
operations (through joint ventures) of the Partnership's owned investment
properties, North Rivers Market shopping center and Spring Hill Fashion
Center shopping center and the interest payments (and repayment of
principal) on the Partnership's first mortgage loans receivable, which
loans are secured by the Shoppes at Rivergate shopping center, Riverpoint
Center shopping center and the Franklin Farm Village shopping center.
(c) Exhibits
1. Real Property Purchase Agreement between Calibre Pointe
Associates and Security Capital Atlantic Incorporated, dated April 29,
1996.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the Registrant has duly caused this report to be signed on its behalf by
the undersigned thereunto duly authorized.
JMB MORTGAGE PARTNERS, LTD. - III
By: JMB Realty Corporation
Corporate General Partner
By: GAILEN J. HULL
Gailen J. Hull
Senior Vice President
Dated: June 17, 1996
FORM 8K - EXHIBIT
PURCHASE AGREEMENT
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(Calibre Pointe Apartments; Atlanta, Georgia)
THIS AGREEMENT is made and entered into as of April __, 1996 by and
between CALIBRE POINTE ASSOCIATES, an Illinois general partnership
(hereinafter called "SELLER"), and SECURITY CAPITAL ATLANTIC INCORPORATED,
a Maryland corporation (hereinafter called "BUYER").
R E C I T A L S
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A. Seller is the owner of that certain real property located in
the City of Atlanta, County of Fulton, State of Georgia, consisting
primarily of an apartment complex (the "PREMISES") commonly known as
"Calibre Pointe Apartments."
B. Buyer desires to purchase, and Seller desires to sell, such
Premises on the terms and conditions hereinafter documented.
NOW, THEREFORE, in consideration of the mutual undertakings of the
parties hereto, it is hereby agreed as follows:
1. PURCHASE AND SALE. Seller shall sell to Buyer, and Buyer shall
purchase from Seller, the land (the "LAND") described in Exhibit "A"
attached hereto and made a part hereof, together with all right, title and
interest of Seller in and to all improvements (the "IMPROVEMENTS"),
structures, supplies and fixtures located upon the Land, all right, title
and interest of Seller in and to those items of personal property located
upon or about the Land and described in Exhibit "B" attached hereto and
made a part hereof, all right, title and interest of Seller in and to the
name "Calibre Pointe Apartments", the landlord's interest in the "LEASES"
(being all leases of the Improvements, including leases which may be made
by Seller after the date hereof and prior to "Closing Date" defined below,
as permitted by this Agreement), and, to the extent assignable, all right,
title and interest of Seller in and to all contract rights, agreements,
tenant lists, advertising material and telephone exchange numbers
(hereinafter, collectively, the "PROPERTY"), all upon the terms, covenants
and conditions hereinafter set forth.
2. PURCHASE PRICE. The purchase price (the "PURCHASE PRICE") for
the Property shall be the sum of $14,500,000.
3. PAYMENT OF PURCHASE PRICE. The Purchase Price shall be paid to
Seller by Buyer as follows:
A. ESCROW DEPOSIT. Within three (3) days after the execution of
this Agreement, Buyer shall deliver $150,000 (which deposit, together with
all interest thereon earned while such deposit is held by "Escrow Holder",
as hereinafter defined, is herein called the "ESCROW DEPOSIT") to Chicago
Title Insurance Company, at its offices c/o Ticor Title Insurance Company,
203 North LaSalle Street, Suite 1400, Chicago, Illinois 60601, Attention:
Mr. Richard Lucchesi (which company, in its capacity as escrow holder
hereunder, is called "ESCROW HOLDER"). The Escrow Deposit shall be
delivered to Escrow Holder by wire transfer of immediately available
federal funds or by check evidencing good funds. The amounts deposited
hereunder shall be held by Escrow Holder as a deposit against the Purchase
Price in accordance with the terms and provisions of this Agreement. At
all times that the Escrow Deposit is being held by the Escrow Holder, the
Escrow Deposit shall be invested by Escrow Holder in the following
investments ("APPROVED INVESTMENTS"): (i) United States Treasury
obligations, (ii) United States Treasury-backed repurchase agreements
issued by a major money center banking institution reasonably acceptable to
Seller and Buyer, or (iii) such other manner as may be reasonably agreed to
by Seller and Buyer. The Escrow Deposit shall be disbursed by Escrow
Holder only as provided in this Agreement.
B. CLOSING PAYMENT. The Purchase Price, as adjusted by the
application of the Escrow Deposit and by the prorations and credits
specified herein, shall be paid in cash on the Closing Date (the amount to
be paid under this subparagraph B being herein called the "CLOSING
PAYMENT").
4. CONDITIONS PRECEDENT
A. TITLE MATTERS.
(1) TITLE REPORT. Seller has ordered (and upon receipt shall
deliver to Buyer) a copy of a preliminary title report ("PRELIMINARY TITLE
REPORT") covering the Property from Chicago Title Insurance Company (which
company, in its capacity as title insurer hereunder, is herein called the
"TITLE COMPANY"), together with copies of all exceptions to title
referenced thereto. In addition, Seller has ordered (and upon receipt
shall deliver to Buyer) an update of that certain ALTA as-built survey of
the Property last revised June 4, 1987, prepared by Patterson Engineering,
which survey shall be certified to Buyer and Title Company ("SURVEY") in
accordance with the Surveyor's Certificate attached hereto as Exhibit "H".
If Buyer shall fail to deliver written notice ("TITLE OBJECTION NOTICE")
setting forth those title and survey matters to which Seller objects on or
before the date which is seven (7) business days following Buyer's receipt
of the Preliminary Title Report and the Survey (the "TITLE REVIEW PERIOD"),
Buyer shall be deemed to have approved the exceptions to title shown on the
Preliminary Title Report and the matters disclosed on the Survey.
Notwithstanding anything to the contrary contained herein, Seller shall be
obligated to remove (or cause the Title Company to affirmatively insure
over) at Seller's expense (and Buyer shall need not object to): (i) any
mortgages, deeds of trust or other liens securing any financing obtained by
Seller, (ii) any mechanic's or materialmen's liens for work done by or on
behalf of Seller, and (iii) any other monetary liens against Seller
(provided Seller shall not be obligated to expend more than $50,000 in
connection with this clause (iii). Approval by Buyer of any additional
exceptions to title or survey matters disclosed after the end of the Title
Review Period shall be a condition precedent to Buyer's obligation to
purchase the Property; provided, however, such approval shall not be
unreasonably withheld. Unless Buyer gives written notice that it
disapproves any such additional exceptions to title or survey matters,
stating the exceptions so disapproved, on or before the sooner to occur of
five (5) business days after receipt of written notice thereof or the
Closing Date, Buyer shall be deemed to have approved said additional
exceptions or survey matters. If, for any reason, Seller does not cause
such exceptions to title or survey matters which Buyer disapproves (to the
extent Buyer is permitted hereunder to so disapprove) to be removed on or
before the Closing Date at no cost or expense to Buyer (Seller having the
right but not the obligation to do so), the obligation of Seller to sell,
and Buyer to buy, the Property as herein provided shall terminate (and
Seller and Buyer shall have no further obligations in connection herewith).
Buyer shall have the option to waive the condition precedent set forth in
this paragraph 4A(1) by notice to Seller. In the event of such waiver,
such condition shall be deemed satisfied. All matters set forth on the
Preliminary Title Report which are not timely objected to by Buyer, other
than matters which Buyer need not object to pursuant to the terms hereof,
are herein called the "PERMITTED EXCEPTIONS". The term "Permitted
Exceptions" shall additionally include (i) any title matters objected to by
Buyer, which objections are subsequently waived in writing by Buyer, and
(ii) any title matters objected to by Buyer, which objections are cured to
Buyer's satisfaction.
(2) EXCEPTIONS TO TITLE. Buyer shall be obligated to accept title
to the Property, subject to the following exceptions to title:
(a) Real estate taxes and assessments not yet due and payable;
(b) The printed exceptions which appear in the standard form
owner's policy of title insurance issued by Title Company in the State of
Georgia (except for ALTA General Exceptions 1 through 5 which shall be
deleted pursuant to an ALTA extended coverage endorsement to the "Owner's
Policy", as defined below); and
(c) The Permitted Exceptions.
Conclusive evidence of the availability of such title shall be the
willingness of Title Company to issue to Buyer on the Closing Date an
owner's title insurance policy in the standard form issued by Title Company
on the State of Georgia ("OWNER'S POLICY"), in the face amount of the
Purchase Price, which policy shall (i) show title to the Property to be
vested of record in Buyer, and (ii) show the Permitted Exceptions to be the
only exceptions to title.
B. DUE DILIGENCE REVIEWS. Except for title and survey matters
(which shall be subject to the provisions of paragraph 4A above), Buyer
shall have until 5:00 p.m. (Central time) on May 13, 1996 (the "DUE
DILIGENCE PERIOD") within which to complete all of Buyer's due diligence
examinations, reviews and inspections of all matters pertaining to the
purchase of the Property, including all leases, service contracts, and all
physical, environmental and compliance matters and conditions respecting
the Property. During the Due Diligence Period, Seller shall provide Buyer
with reasonable access to the Property upon reasonable advance notice and
either has or within a reasonably prompt period after the date of this
Agreement shall make available to Buyer, to the extent in Seller's
possession, the following items:
(i) RENT ROLL AND APARTMENT MIX LIST. A current rent roll and
delinquency report ("RENT ROLL") for the Property and a list of apartments
sizes and rents (e.g., 1 bedroom, 1 bath: __ units @ $___/mth);
(ii) FINANCIAL INFORMATION. Operating statements of the Property
for the 24 months preceding this Agreement ("OPERATING STATEMENTS") and
financial statements (balance sheet, income, expenses and capital
improvements) for the Property for the two years preceding this Agreement
and year-to-date for the current year;
(iii) TAX STATEMENTS. Copies or a summary of ad valorem tax
statements relating to the Property for the current year or other current
tax period (if available) and for the 24 months preceding this Agreement;
(iv) LEASES. Seller's standard lease form;
(v) SERVICE AGREEMENTS. Copies of all "Service Agreements" (as
defined below);
(vi) MAINTENANCE RECORDS. All available maintenance work orders for
the 12 months preceding this Agreement;
(vii) LIST OF CAPITAL IMPROVEMENTS. A list of all material capital
improvements known to Seller and performed on the Property within the 24
months preceding this Agreement;
(viii) ENVIRONMENTAL REPORTS. Any environmental reports in Seller's
possession related to the Property;
(ix) PLANS AND SPECIFICATIONS. All construction plans and
specifications in Seller's possession relating to the original development
of the Property and any major capital repairs or tenant improvements;
(x) EXISTING TITLE AND SURVEY. Copy of Seller's existing title
insurance policy and any existing ALTA "as-built" survey of the Property;
and
(xi) INSURANCE CLAIMS. Information regarding insurance claims made
by Seller during the 12-month period prior to the date hereof.
Buyer shall promptly commence, and shall diligently and in good faith
pursue, its due diligence review hereunder. Buyer shall at all times
conduct its due diligence review, inspections and examinations in a manner
so as to not cause damage, loss, cost or expense to Seller or the Property
and so as to not interfere with or disturb any tenant at the Property, and
Buyer will indemnify, defend, and hold Seller and the Property harmless
from and against any such damage, loss, cost or expense (the foregoing
obligation surviving any termination of this Agreement). In no event shall
Buyer make any intrusive physical testing (environmental, structural or
otherwise) at the Property (such as soil borings or the like) without
Seller's prior written consent (and shall in all events promptly return the
Property to its prior condition and repair thereafter). Without limitation
on the foregoing, in no event shall Buyer contact any tenant of the
Property without Seller's express written consent. Seller shall have the
right, at its option, to cause a representative of Seller to be present at
all inspections, reviews and examinations conducted hereunder. At the
request of Seller, Buyer shall promptly deliver to Seller true, accurate
and complete copies of any written reports relating to the Property
prepared for or on behalf of Buyer by any third party (such reports shall
be delivered without any representation or warranty by Buyer and Seller
shall not be entitled to rely thereon without the prior written consent of
the party(ies) which prepared such report(s)) and, in the event of
termination hereunder, shall return all documents and other materials
furnished to or on behalf of Buyer by Seller hereunder. Buyer shall keep
all information or data received or discovered in connection with any of
the inspections, reviews or examinations confidential in accordance with
the terms of that certain letter agreement dated as of March 25, 1996
respecting such matters. If, on or before the expiration of the Due
Diligence Period, based upon such review, examination or inspection, Buyer
shall determine, in its sole and absolute discretion, that it no longer
intends to acquire the Property, then Buyer shall promptly notify Seller of
such determination in writing (such notice being herein called the
"TERMINATION NOTICE"), whereupon this Agreement, and the obligations of the
parties hereunder, shall terminate and the Escrow Deposit shall be returned
to Buyer. If Buyer shall fail to deliver the Termination Notice to Seller
on or before the expiration of the Due Diligence Period, Buyer shall be
deemed to have waived its right to terminate this Agreement pursuant to
this paragraph 4B.
C. PERFORMANCE BY SELLER. The performance and observance, in all
material respects, by Seller of all covenants and agreements of this
Agreement to be performed or observed by Seller prior to or on the Closing
Date shall be a condition precedent to Buyer's obligation to purchase the
Property. In addition, in the event that the "Seller Closing Certificate"
(as hereinafter defined) shall disclose any material adverse changes in the
representations and warranties of Seller contained in paragraph 7A below
which are not otherwise permitted or contemplated by the terms of this
Agreement, then Buyer shall have the right to terminate this Agreement.
For purposes of determining compliance with the conditions set forth in
this paragraph 4C only, a representation or warranty that is limited to
Seller's knowledge or notice shall be false if the factual matter that is
the subject of such representation or warranty is false notwithstanding any
lack of knowledge or notice to Seller. Buyer shall have the option to
waive the condition precedent set forth in this paragraph 4C by written
notice to Seller. In the event of such waiver, such condition shall be
deemed satisfied.
D. PERFORMANCE BY BUYER. The performance and observance, in all
material respects, by Buyer of all covenants and agreements of this
Agreement to be performed or observed by it prior to or on the Closing Date
shall be a condition precedent to Seller's obligation to sell the Property.
In addition, in the event that the Buyer Closing Certificate shall disclose
any material adverse changes in the representations and warranties of Buyer
contained in paragraph 7B below which are not permitted or contemplated by
the terms of this Agreement, then Seller shall have the right to terminate
this Agreement. For purposes of determining compliance with the conditions
set forth in this paragraph 4D only, a representation or warranty that is
limited to Buyer's knowledge or notice shall be false if the factual matter
that is the subject of such representation or warranty is false
notwithstanding any lack of knowledge or notice to Buyer. Seller shall
have the option to waive the condition precedent set forth in this
paragraph 4D by written notice to Buyer. In the event of such waiver, such
condition shall be deemed satisfied.
5. CLOSING PROCEDURE TRANSACTIONS. The sale and purchase herein
provided shall be consummated at a closing conference ("CLOSING
CONFERENCE"), which shall be held on the Closing Date at the offices of
Seller, 900 North Michigan Avenue, Chicago, Illinois. As used herein,
"CLOSING DATE" means May 31, 1996, or such earlier date as may be agreed
upon by Buyer and Seller in writing.
A. ESCROW. By the Closing Date, the parties shall deliver to
Title Company, at its office located at Atlanta, Georgia, the following:
(1) by Seller, a duly executed and acknowledged original limited warranty
deed ("DEED") in favor of Buyer, in the form of Exhibit "C" attached hereto
and made a part hereof, and (2) by Buyer, the Closing Payment in
immediately available federal funds. Such deliveries shall be made
pursuant to escrow instructions ("ESCROW INSTRUCTIONS") to be executed
among Buyer, Seller and Title Company in form reasonably acceptable to such
parties in order to effectuate the intent hereof. The conditions to the
closing of such escrow shall include the Title Company's receipt of the
Deed, the Closing Payment, the commitment of the Title Company to issue the
Owner's Policy in the form specified in paragraph 4A(2) hereof, and an
authorization notice from each of Buyer and Seller (and each of Buyer and
Seller shall be obligated to deliver such authorization notice at the
Closing Conference as soon as it is reasonably satisfied that the other
party is in a position to deliver the items to be delivered by such other
party under subparagraph B below).
B. DELIVERY TO PARTIES. Upon the satisfaction of the conditions
set forth in the Escrow Instructions, then on the Closing Date (1) the Deed
shall be delivered to Buyer by Title Company's depositing the same for
recordation, (2) the Closing Payment (and the Escrow Deposit) shall be
delivered to Seller and (3) at the Closing Conference, the following items
shall be delivered:
(1) SELLER DELIVERIES. Seller shall deliver to Buyer the
following:
(a) A duly executed and acknowledged bill of sale, assignment and
assumption agreement ("ASSIGNMENT AND ASSUMPTION AGREEMENT") in the form of
Exhibit "D" attached hereto and made a part hereof;
(b) A certificate of Seller ("SELLER CLOSING CERTIFICATE") updating
the representations and warranties contained in paragraph 7A hereof to the
Closing Date and noting any changes thereto;
(c) Duly executed and acknowledged certificates regarding the "non-
foreign" status of Seller satisfying both federal, state and local law
requirements regarding withholding or other similar matters required in
connection with the sale of Property;
(d) A notice to the tenants of the sale of the Property to Buyer
hereunder in the form of Exhibit "J" attached hereto ("TENANT NOTICES");
(e) To the extent in Seller's possession or control, all of the
original Leases, Service Agreements, plans and specifications, and other
operating agreements respecting the Property, keys tagged for
identification, and other property-specific materials reasonably requested
by Buyer (such delivery being accomplished by Seller either delivering the
same to Buyer at the Closing Conference or by leaving such materials at the
Property).
(f) Evidence reasonably satisfactory to Buyer and Escrow Holder
respecting the due organization of Seller and the due authorization and
execution of this Agreement and the documents required to be delivered
hereunder; and
(g) Such additional documents as may be reasonably required by
Buyer and Title Company in order to consummate the transactions hereunder
(provided the same do not increase the costs to, or liability or
obligations of, Seller in a manner not otherwise provided for herein).
(2) BUYER DELIVERIES. Buyer shall deliver to Seller the following:
(a) A duly executed and acknowledged Assignment and Assumption
Agreement;
(b) A certificate of Buyer ("BUYER CLOSING CERTIFICATE") updating
the representations and warranties contained in paragraph 7B hereof to the
Closing Date and noting any changes thereto;
(c) The Tenant Notices;
(d) Evidence reasonably satisfactory to Seller and Escrow Holder
respecting the due organization of Buyer and the due authorization and
execution of this Agreement and the documents required to be delivered
hereunder; and
(e) Such additional documents as may be reasonably required by
Seller and Title Company in or to consummate the transactions hereunder
(provided the same do not increase the costs to, or liability or
obligations of, Buyer in a manner not otherwise provided for herein).
C. CLOSING COSTS. Seller shall pay (i) the State of Georgia
transfer tax attributable to the Deed, (ii) one-half of the escrow fees of
Escrow Holder, and (iii) the costs of the Survey. Buyer shall pay (i) one-
half of the escrow fees of Escrow Holder, (ii) all costs and premiums
associated with the Owner's Policy (including any title search or
commitment fees), (iii) all charges for recording the Deed or other
documents contemplated herein, and (iv) all costs and expenses related to
Buyer's due diligence examinations, reviews and inspections. Seller and
Buyer shall each pay its respective shares of prorations as hereinafter
provided.
D. PRORATIONS.
(1) ITEMS TO BE PRORATED. The following shall be prorated between
Seller and Buyer as of the Closing Date:
(a) All real estate taxes and assessments on the Property for the
current year or other current tax period not yet due and payable, including
any assessments by private covenant constituting a lien or charge on the
Property. In no event shall Seller be charged with or be responsible for
any increase in the taxes on the Property resulting from the sale of the
Property or from any improvements made or leases entered into on or after
the Closing Date. In the event that any assessments on the Property are
payable in installments, then the installment for the current period shall
be prorated (with Buyer assuming the obligation to pay any installments due
after the Closing Date).
(b) All fixed and additional rentals under the Leases, refundable
security deposits (including interest thereon if required by law or
contract to be paid to the tenant thereunder) and other tenant charges.
Seller shall deliver or provide a credit in an amount equal to all prepaid
rentals for periods after the Closing Date and all refundable security
deposits (to the extent the foregoing were made by tenants under the Leases
and are not applied or forfeited prior to the Closing Date) to Buyer on the
Closing Date. Rents which are delinquent as of the Closing Date shall not
be prorated on the Closing Date. Buyer shall include such delinquencies in
its normal billing and shall diligently pursue the collection thereof in
good faith after the Closing Date (but Buyer shall not be required to
litigate or declare a default in any Lease). To the extent Buyer receives
rents on or after the Closing Date, such payments shall be applied first
toward then current rent owed to Buyer in connection with the applicable
tenant lease for which such payments are received, and any excess monies
received shall be applied toward the payment of any delinquent rents, with
Seller's share thereof being promptly delivered to Seller. Buyer may not
waive any delinquent rents nor modify a tenant lease so as to reduce or
otherwise affect amounts owed thereunder for any period in which Seller is
entitled to receive a share of charges or amounts without first obtaining
Seller's written consent. Seller hereby reserves the right to pursue any
remedy against any tenant owing delinquent rents and any other amounts to
Seller so long as such tenant has vacated the premises under the Lease.
Buyer shall reasonably cooperate with Seller (at Seller's expense) in any
collection efforts hereunder (but shall not be required to litigate or
declare a default in any Lease). With respect to delinquent rents and any
other amounts or other rights of any kind respecting tenants who are no
longer tenants of the Property as of the Closing Date, Seller shall retain
all rights relating thereto.
(c) All other normal and customary operating expenses.
(2) CALCULATION. The prorations and payments shall be made on the
basis of a written statement submitted to Buyer and Seller by Escrow Holder
on or before the Closing Date and approved by Buyer and Seller. In the
event any prorations or apportionments made under this subparagraph D shall
prove to be incorrect for any reason, then any party shall be entitled to
an adjustment to correct the same. Any item which cannot be finally
prorated because of the unavailability of information shall be tentatively
prorated on the basis of the best data then available and reprorated when
the information is available. The obligations of Seller and Buyer under
this paragraph 5D(2) shall survive the closing.
(3) LEASING COMMISSIONS. On or before the Closing Date, Seller
shall pay in full all leasing commissions and locator's and finder's fees
due to leasing or other agents for each Lease entered into prior to the
Closing Date.
6. CONDEMNATION OR DESTRUCTION OF PROPERTY. In the event that,
after the date hereof but prior to the Closing Date, either any portion of
the Property is taken pursuant to eminent domain proceedings or any of the
improvements on the Property are damaged or destroyed by any casualty,
Seller shall have no obligation to repair or replace any such damage or
destruction. Seller shall, upon consummation of the transaction herein
provided, assign to Buyer all claims of Seller respecting any condemnation
or casualty insurance coverage, as applicable, and all condemnation
proceeds or proceeds from any such casualty insurance received by Seller on
account of any casualty (the damage from which shall not have been repaired
by Seller prior to the Closing Date), as applicable. In the event the
condemnation award or the cost of repair of damage to the Property on
account of a casualty, as applicable, shall exceed $100,000 (or if a
casualty is uninsured, and Seller does not elect to credit Buyer with an
amount equal to the cost to repair such uninsured casualty, Seller having
the right, but not the obligation, to do so), Buyer may, at its option,
terminate this Agreement by notice to Seller, given on or before the
Closing Date and receive a refund of the Escrow Deposit.
7. REPRESENTATIONS, WARRANTIES AND COVENANTS.
A. REPRESENTATIONS, WARRANTIES AND COVENANTS OF SELLER.
(1) GENERAL DISCLAIMER. Except as specifically set forth in
paragraph 7A(2) below, the Deed or in the documents delivered by Seller at
closing pursuant to paragraph 5B(1) hereof, the sale of the Property
hereunder is and will be made on an "as is" basis, without representations
and warranties of any kind or nature, express, implied or otherwise,
including, but not limited to, any representation or warranty concerning
title to the Property, the physical condition of the Property (including,
but not limited to, the condition of the soil or the Improvements), the
environmental condition of the Property (including, but not limited to, the
presence or absence of hazardous substances on or respecting the Property),
the compliance of the Property with applicable laws and regulations
(including, but not limited to, zoning and building codes or the status of
development or use rights respecting the Property), the financial condition
of the Property or any other representation or warranty respecting income,
expenses, charges, liens or encumbrances, rights or claims on, affecting or
pertaining to the Property or any part thereof. Buyer acknowledges that,
during the Due Diligence Period, Buyer will examine, review and inspect all
matters which in Buyer's judgment bear upon the Property and its value and
suitability for Buyer's purposes. Except as to matters specifically set
forth in paragraph 7A(2) below, the Deed or in the documents delivered by
Seller at closing pursuant to paragraph 5B(1) hereof, Buyer will acquire
the Property solely on the basis of its own physical and financial
examinations, reviews and inspections and the title insurance protection
afforded by the Owner's Policy.
(2) LIMITED REPRESENTATIONS AND WARRANTIES OF SELLER. Seller
hereby represents and warrants to Buyer that, except as set forth in
Exhibit "E" attached hereto and made a part hereof (it being understood and
agreed that, for the purpose of the representations below, Seller's
knowledge shall mean the present actual knowledge of Julie Walner, the
portfolio manager for JMB Realty Corporation and, as such, is the employee
most involved with the Property in Seller's organization):
(a) RENT ROLL. Attached as Exhibit "F" and made a part hereof is a
true, complete and accurate list, as of the date thereof, of all Leases,
together with a summary of certain information respecting the Leases, which
information, to Seller's knowledge, is true and correct in all material
respects as of the date thereof. Neither Seller, nor to Seller's
knowledge, any tenant (except as may be disclosed in the Rent Roll) is in
default under any of such tenant leases that remains uncured. Seller has
not entered into any contracts with any party requiring the payment of any
leasing commissions or leasing fees regarding future leases or as to the
procuring of tenants.
(b) LITIGATION. There is no pending action, litigation,
condemnation or other proceeding against the Property or against Seller
with respect to the Property, including without limitation, any
condemnation proceedings or actions under the Fair Housing Act, which
challenges Seller's ability to execute or perform its obligations under
this Agreement.
(c) COMPLIANCE. Seller has received no written notice (i) from any
governmental authority or other entity having jurisdiction over the
Property to the effect that the Property or the use thereof is not in
compliance with applicable laws and ordinances or applicable covenants,
(ii) from any insurer mandating any remediation work which has not been
complied with, or (iii) any water, sewer, gas, electric, telephone or
drainage facilities or other utilities required by law for the operation of
the Property are not installed or otherwise available to the Property.
(d) SERVICE AGREEMENTS. Other than those which are cancelable on
30 days' notice without payment of any fees, there are no service
agreements or contracts ("SERVICE AGREEMENTS") or other agreements (other
than as expressly set forth in this Agreement) relating to the Property
which will be in force on the Closing Date, except as described in
Exhibit "G" attached hereto and made a part hereof, and neither Seller nor,
to Seller's knowledge, any other party, is in default thereunder that
remains uncured.
(e) DUE AUTHORITY. This Agreement and all agreements, instruments
and documents herein provided to be executed or to be caused to be executed
by Seller are and on the Closing Date will be duly authorized, executed and
delivered by and are binding upon Seller. Seller is a general partnership,
duly organized and validly existing under the laws of the State of
Illinois, and is duly authorized and qualified to do all things required of
it under this Agreement.
(f) ENVIRONMENTAL MATTERS. Seller has received no written notice
and has no knowledge of the existence, deposit, storage, removal, burial or
discharge of any "Hazardous Material" at, upon, under, within or adjacent
to the Property or of the violation of any Environmental Law, in an amount
which would, as of the date hereof, give rise to an "Environmental
Compliance Cost". To Seller's knowledge, Seller has not manufactured,
introduced, released or discharged from or onto the Property any Hazardous
Material (other than cleaning fluids, lawn maintenance materials and the
like customarily used in the operation and management of properties similar
to the Property). The term "HAZARDOUS MATERIAL" shall mean (i) asbestos
and any chemicals, flammable substances or explosives, any radioactive
materials (including radon), any hazardous wastes or substances which have,
as of the date hereof, been determined by any applicable Federal, State or
local government law to be hazardous or toxic by the U.S. Environmental
Protection Agency, the U.S. Department of Transportation, and/or any
instrumentality now or hereafter authorized to regulate materials and
substances in the environment which has jurisdiction over the Property
("ENVIRONMENTAL AGENCY"), and (ii) any oil, petroleum or petroleum derived
substance, any drilling fluids, produced waters and other wastes associated
with the exploration, development or production of crude oil, which
materials listed under items (i) and (ii) above cause the Property (or any
part thereof) to be in material violation of any applicable environmental
laws or the regulations of any Environmental Agency; provided, however,
that the term "Hazardous Material" shall not include motor oil and gasoline
contained in or discharged from vehicles not used primarily for the
transport of motor oil or gasoline. The term "ENVIRONMENTAL COMPLIANCE
COST" means any reasonable out-of-pocket cost, fee or expense incurred
directly to satisfy any requirement imposed by an Environmental Agency to
bring the Property into compliance with applicable Federal, State and local
laws and regulations directly relating to the existence on the Property of
any Hazardous Material. The term "ENVIRONMENTAL LAWS" includes without
limitation the Resource Conservation and Recovery Act and the Comprehensive
Environmental Response Compensation and Liability Act and other federal
laws governing the environment as in effect on the date of this Agreement
together with their implementing regulations and guidelines as of the date
of this Agreement, and all state, regional, county, municipal and other
local laws, regulations and ordinances that are equivalent or similar to
the federal laws recited above or that purport to regulate Hazardous
Materials.
(g) FINANCIAL INFORMATION. All financial statements prepared by
Seller have been prepared in the usual course of Seller's business.
B. REPRESENTATIONS AND WARRANTIES OF BUYER. Buyer represents and
warrants to Seller as follows: This Agreement and all agreements,
instruments and documents herein provided to be executed or to be caused to
be executed by Buyer are and on the Closing Date will be duly authorized,
executed and delivered by and are binding upon Buyer; and Buyer is a
corporation, duly organized and validly existing and in good standing under
the laws of the State of Maryland, and is duly authorized and qualified to
do all things required of it under this Agreement.
C. SURVIVAL. Any cause of action of a party for a breach of the
foregoing representations and warranties shall survive until the date which
is one (1) year after the Closing Date, at which time such representations
and warranties (and any cause of action resulting from a breach thereof not
then in litigation) shall terminate. Notwithstanding the foregoing, if
Buyer shall have actual knowledge as of the Closing Date that any of the
representations or warranties of Seller contained herein are false or
inaccurate or that Seller is in breach or default of any of its obligations
under this Agreement, and Buyer nonetheless closes the transactions
hereunder and acquires the Property, then Seller shall have no liability or
obligation respecting such false or inaccurate representations or
warranties or other breach or default (and any cause of action resulting
therefrom shall terminate upon such closing hereunder).
D. INTERIM COVENANTS OF SELLER. Until the Closing Date or the
sooner termination of this Agreement:
(1) Seller shall operate (including with respect to its obligations
respecting the Leases, the Service Agreements and other agreements
affecting the Property) and maintain the Property in the same manner as
prior hereto pursuant to its normal course of business (such obligations
not including extraordinary capital expenditures or expenditures not
incurred in such normal course of business), subject to reasonable wear and
tear and further subject to destruction by casualty or other events beyond
the control of Seller.
(2) Seller shall not enter into any additional service contracts or
other similar agreements without the prior consent of Buyer, except those
deemed reasonably necessary by Seller which are cancelable without payment
of any fee on 30 days' notice (and Seller shall promptly provide Buyer with
copies of all such additional service contracts).
(3) Seller shall continue to offer the Property for lease in the
same manner as prior hereto pursuant to its normal course of business and
shall keep Buyer reasonably informed as to the status of leasing prior to
the Closing Date. After the expiration of the Due Diligence Period (unless
Buyer shall have theretofore delivered a Termination Notice hereunder),
Seller shall not enter into any new leases or modifications of existing
leases thereafter without the consent of Buyer (which consent will not be
unreasonably withheld or materially delayed); provided, however, Seller may
continue to enter into leases which are on Seller's standard lease form
(without material modification), are for terms of not more than one year,
and provide for rents of not less than Seller's pro forma rents for the
Property as set forth in Exhibit "I" attached hereto.
(4) Seller shall provide Buyer (or its designated independent
auditor) with access to those operating books and records directly related
to the Property in Seller's possession for the one-year period after the
Closing Date. Seller shall request that Seller's third party manager
reasonably cooperate with Buyer in conjunction with any audit required by
Buyer hereunder and will request that such manager deliver an appropriate
representation letter in conjunction therewith; provided, however, in no
event shall Seller be obligated to obtain any such representation letter
nor shall Seller have any obligation to itself execute such letter or make
any representation in connection therewith (and the same shall not
constitute a condition to the transactions hereunder).
8. INDEMNIFICATION.
A. BY BUYER. Buyer shall hold harmless, indemnify and defend
Seller from and against: (1) any and all third party claims for Buyer's
torts or breaches of contract related to the Property and occurring on or
after the Closing Date, (2) any claim, liability, actual damage or expense
asserted against or suffered by Seller arising out of the breach or
inaccuracy of any representation or warranty contained in paragraph 7B
above (provided any claims by Seller for indemnification hereunder shall be
brought within one (1) year after the Closing Date, at which time any right
to indemnification thereunder with respect to any matters not then in
litigation shall terminate); (3) any and all loss, damage or third party
claims in any way arising from Buyer's inspections or examinations of the
Property prior to the Closing Date, and (4) all costs and expenses,
including reasonable attorney's fees, incurred by Seller as a result of the
foregoing.
B. BY SELLER. Seller shall hold harmless, indemnify and defend
Buyer from and against: (1) any and all third party claims for Seller's
torts or breaches of contract related to the Property and occurring prior
to the Closing Date; and (2) any claim, liability, actual damage or expense
asserted against or suffered by Buyer arising out of the breach or
inaccuracy of any representation or warranty contained in paragraph 7A(2)
above (provided any claims by Buyer for indemnification hereunder shall be
brought within one (1) year after the Closing Date, at which time any right
to indemnification thereunder with respect to any matters not then in
litigation shall terminate); (3) all costs and expenses, including
reasonable attorney's fees, incurred by the Buyer as a result of such
claims. The foregoing indemnity shall not cover any matters relating to
title or marketability of the Property (Buyer relying on the coverage
provided by the Owner's Policy as to such matters).
C. GENERALLY. Each indemnification under this Agreement shall be
subject to the following provisions: The indemnitee shall notify
indemnitor of any such claim against indemnitee within 30 days after it has
notice of such claim, but failure to notify indemnitor shall in no case
prejudice the rights of indemnitee under this Agreement unless indemnitor
shall be prejudiced by such failure and then only to the extent of such
prejudice. Should indemnitor fail to discharge or undertake to defend
indemnitee against such liability within 10 days after the indemnitee gives
the indemnitor written notice of the same, then indemnitee may settle such
liability, and indemnitor's liability to indemnitee shall be conclusively
established by such settlement, the amount of such liability to include
both the settlement consideration and the reasonable costs and expenses,
including attorneys' fees, incurred by indemnitee in effecting such
settlement.
9. DISPOSITION OF DEPOSITS. IF THE TRANSACTION HEREIN PROVIDED
SHALL NOT BE CLOSED BY REASON OF SELLER'S DEFAULT UNDER THIS AGREEMENT OR
THE FAILURE OF SATISFACTION OF THE CONDITIONS DESCRIBED IN PARAGRAPH 4
HEREOF OR THE TERMINATION OF THIS AGREEMENT IN ACCORDANCE WITH PARAGRAPH 6
HEREOF, THEN THE ESCROW DEPOSIT SHALL BE RETURNED TO BUYER, AND NEITHER
PARTY SHALL HAVE ANY FURTHER OBLIGATION OR LIABILITY TO THE OTHER;
PROVIDED, HOWEVER, IF THE TRANSACTIONS HEREUNDER SHALL FAIL TO CLOSE SOLELY
BY REASON OF SELLER'S DEFAULT, AND BUYER SHALL HAVE FULLY PERFORMED ITS
OBLIGATIONS HEREUNDER AND SHALL BE READY, WILLING AND ABLE TO CLOSE, THEN
BUYER SHALL BE ENTITLED TO SPECIFICALLY ENFORCE THIS AGREEMENT (BUT NO
OTHER ACTION, FOR DAMAGES OR OTHERWISE, SHALL BE PERMITTED). IN THE EVENT
THE TRANSACTION HEREIN PROVIDED SHALL NOT CLOSE BY REASON OF BUYER'S
DEFAULT UNDER THIS AGREEMENT, THEN THE ESCROW DEPOSIT SHALL BE DELIVERED TO
SELLER AS FULL COMPENSATION AND LIQUIDATED DAMAGES UNDER AND IN CONNECTION
WITH THIS AGREEMENT. IN THE EVENT THE TRANSACTION HEREIN PROVIDED SHALL
CLOSE, THE ESCROW DEPOSIT SHALL BE APPLIED AS A PARTIAL PAYMENT OF THE
PURCHASE PRICE. IN CONNECTION WITH THE FOREGOING, THE PARTIES RECOGNIZE
THAT SELLER WILL INCUR EXPENSE IN CONNECTION WITH THE TRANSACTION
CONTEMPLATED BY THIS AGREEMENT AND THAT THE PROPERTY WILL BE REMOVED FROM
THE MARKET; FURTHER, THAT IT IS EXTREMELY DIFFICULT AND IMPRACTICABLE TO
ASCERTAIN THE EXTENT OF DETRIMENT TO SELLER CAUSED BY THE BREACH BY BUYER
UNDER THIS AGREEMENT AND THE FAILURE OF THE CONSUMMATION OF THE TRANSACTION
CONTEMPLATED BY THIS AGREEMENT OR THE AMOUNT OF COMPENSATION SELLER SHOULD
RECEIVE AS A RESULT OF BUYER'S BREACH OR DEFAULT. IN THE EVENT THE SALE OF
THE PROPERTY SHALL NOT BE CONSUMMATED ON ACCOUNT OF BUYER'S DEFAULT, THEN
THE RETENTION OF THE ESCROW DEPOSIT SHALL BE SELLER'S SOLE AND EXCLUSIVE
REMEDY UNDER THIS AGREEMENT BY REASON OF SUCH DEFAULT, SUBJECT TO THE
PROVISIONS OF PARAGRAPH 10I HEREOF.
------------------ ----------------
SELLER'S INITIALS BUYER'S INITIALS
10. MISCELLANEOUS.
A. BROKERS.
(1) Except as provided in subparagraph (2) below, Seller represents
and warrants to Buyer, and Buyer represents and warrants to Seller, that no
broker or finder has been engaged by it, respectively, in connection with
any of the transactions contemplated by this Agreement or to its knowledge
is in any way connected with any of such transactions. In the event of a
claim for broker's or finder's fee or commissions in connection herewith,
then Seller shall indemnify and defend Buyer from the same if it shall be
based upon any statement or agreement alleged to have been made by Seller,
and, except for any claims by Broker which are Seller's responsibility
hereunder, Buyer shall indemnify and defend Seller from the same if it
shall be based upon any statement or agreement alleged to have been made by
Buyer. The indemnification obligations under this paragraph 10 A(1) shall
survive the closing of the transactions hereunder or the earlier
termination of this Agreement.
(2) If and only if the sale contemplated herein closes, Seller
agrees to pay a brokerage commission to Richard Ellis, LLC ("BROKER")
pursuant to a separate written agreement.
B. LIMITATION OF LIABILITY.
(1) Notwithstanding anything to the contrary contained
herein, if the closing of the transactions hereunder shall have occurred
(and Buyer shall not have waived, relinquished or released any applicable
rights in further limitation), the aggregate liability of Seller arising
pursuant to or in connection with the representations, warranties,
indemnifications, covenants or other obligations (whether express or
implied) of Seller under this Agreement (or any document executed or
delivered in connection herewith) shall not exceed $1,000,000.
(2) No constituent partner in or agent of Seller (other than
JMB Mortgage Partners, Ltd.-III ("JMB-III") or JMB Mortgage Partners, Ltd.-
IV ("JMB-IV"), the general partners of Seller), nor any advisor, trustee,
director, officer, employee, beneficiary, shareholder, participant,
representative or agent of any corporation or trust that is or becomes a
constituent partner in Seller, JMB-III or JMB-IV (including, but not
limited to, JMB Realty Corporation, and the individual(s) specified in
paragraph 7A(2) above) shall have any personal liability, directly or
indirectly, under or in connection with this Agreement or any agreement
made or entered into under or pursuant to the provisions of this Agreement,
or any amendment or amendments to any of the foregoing made at any time or
times, heretofore or hereafter, and Buyer and its successors and assigns
and, without limitation, all other persons and entities, shall look solely
to Seller's, JMB-III's and JMB-IV's assets for the payment of any
claim or for any performance, and Buyer, on behalf of itself and its
successors and assigns, hereby waives any and all such personal liability.
Notwithstanding anything to the contrary contained in this Agreement,
neither the negative capital account of any constituent partner in Seller,
JMB-III, or JMB-IV (or in any other constituent partner of Seller, JMB-III
or JMB-IV), nor any obligation of any constituent partner in Seller (or in
any other constituent partner of Seller, JMB-III, or JMB-IV) to restore a
negative capital account or to contribute capital to Seller, JMB-III or
JMB-IV (or to any other constituent partner of Seller), shall at any time
be deemed to be the property or an asset of Seller, JMB-III or JMB-IV or
any such other constituent partner (and neither Buyer nor any of its
successors or assigns shall have any right to collect, enforce or proceed
against or with respect to any such negative capital account of partner's
obligation to restore or contribute).
C. ENTIRE AGREEMENT. This Agreement contains the entire agreement
between the parties respecting the matters herein set forth and supersedes
all prior agreements between the parties hereto respecting such matters.
This Agreement may not be modified or amended except by written agreement
signed by both parties.
D. TIME OF THE ESSENCE. Time is of the essence of this Agreement.
E. INTERPRETATION. Paragraph headings shall not be used in
construing this Agreement. Each party acknowledges that such party and its
counsel, after negotiation and consultation, have reviewed and revised this
Agreement. As such, the terms of this Agreement shall be fairly construed
and the usual rule of construction, to the effect that any ambiguities
herein should be resolved against the drafting party, shall not be employed
in the interpretation of this Agreement or any amendments, modifications or
exhibits hereto or thereto.
F. GOVERNING LAW. This Agreement shall be construed and enforced
in accordance with the laws of the State of Georgia.
G. SUCCESSORS AND ASSIGNS. Neither party may assign or transfer
its rights or obligations under this Agreement without the prior written
consent of the other party (in which event such transferee shall assume in
writing all of the transferor's obligations hereunder, but such transferor
shall not be released from its obligations hereunder); provided, however,
Buyer may assign its interest in this Agreement to an Affiliate. For the
purposes of this paragraph 10G, an "AFFILIATE" means an entity that
directly or indirectly controls, is controlled by or is under common
control with Buyer, (and the term "CONTROL" means the power to direct the
management of such entity through voting rights, ownership or contractual
obligations). No consent given by Seller to any transfer or assignment of
Buyer's rights or obligations hereunder shall be construed as a consent to
any other transfer or assignment of Buyer's rights or obligations
hereunder. No transfer or assignment in violation of the provisions hereof
shall be valid or enforceable. Subject to the foregoing, this Agreement
and the terms and provisions hereof shall inure to the benefit of and be
binding upon the successors and assigns of the parties.
H. NOTICES. Any notice which a party is required or may desire to
give the other shall be in writing and shall be sent by personal delivery,
by mail (either [i] by United States registered or certified mail, return
receipt requested, postage prepaid, or [ii] by Federal Express or similar
generally recognized overnight carrier regularly providing proof of
delivery), or by facsimile addressed as follows (subject to the right of a
party to designate a different address for itself by notice similarly
given):
TO BUYER:
Security Capital Atlantic Incorporated
Six Piedmont Center
Suite 600
Atlanta, Georgia 30305
Attention: Mr. Raymond D. Barrows
Facsimile: (404) 233-2379
WITH COPY TO:
Mayer, Brown & Platt
700 Louisiana Street
Suite 3600
Houston, Texas 77002
Attention: Vytas A. Petrulis
Facsimile: (713) 224-6410
TO SELLER:
Calibre Pointe Apartments
c/o JMB Realty Corporation
900 North Michigan Avenue
19th Floor
Chicago, Illinois 60611
Attention: Mr. Glenn E. Emig
Facsimile: (312) 915-2310
WITH COPY TO:
Pircher, Nichols & Meeks
1999 Avenue of the Stars
Suite 2600
Los Angeles, California 90067
Attention: Real Estate Notices (GML)
Facsimile: (310) 201-8922
Any notice so given by mail shall be deemed to have been given as of the
date of delivery (whether accepted or refused) established by U.S. Post
Office return receipt or the overnight carrier's proof of delivery, as the
case may be. Any notice given by facsimile shall be deemed delivered upon
transmission of such notice. Any such notice not so given shall be deemed
given upon receipt of the same by the party to whom the same is to be
given.
I. LEGAL COSTS. The parties hereto agree that they shall pay
directly any and all legal costs which they have incurred on their own
behalf in the preparation of this Agreement, all deeds and other agreements
pertaining to this transaction and that such legal costs shall not be part
of the closing costs. In addition, if either Buyer or Seller brings any
suit or other proceeding with respect to the subject matter or the
enforcement of this Agreement, the prevailing party (as determined by the
court, agency or other authority before which such suit or proceeding is
commenced), in addition to such other relief as may be awarded, shall be
entitled to recover reasonable attorneys' fees, expenses and costs of
investigation actually incurred. The foregoing includes, but is not
limited to, attorneys' fees, expenses and costs of investigation
(including, without limitation, those incurred in appellate proceedings),
costs incurred in establishing the right to indemnification, or in any
action or participation in, or in connection with, any case or proceeding
under Chapter 7, 11 or 13 of the Bankruptcy Code (11 United States Code
Sections 101 et seq.), or any successor statutes.
J. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
shall constitute one and the same document.
K. REPORTING PERSON. Seller and Buyer hereby designate Escrow
Holder as the Real Estate Reporting Person for purposes of Section 6045 of
the Internal Revenue Code; and Escrow Holder, by its execution below,
hereby accepts such appointment.
IN WITNESS WHEREOF, the parties have executed this Agreement as of
the day and year first above written.
CALIBRE POINTE ASSOCIATES,
an Illinois limited partnership
By: JMB MORTGAGE PARTNERS, LTD.-III,
a Illinois limited partnership,
General Partner
By: JMB REALTY CORPORATION,
a Delaware corporation,
Corporate General Partner
By:
--------------------------
Name:
--------------------
Title:
--------------------
By: JMB MORTGAGE PARTNERS, LTD.-IV,
an Illinois limited partnership,
General Partner
By: JMB REALTY CORPORATION,
a Delaware corporation,
Corporate General Partner
By:
--------------------------
Name:
--------------------
Title:
--------------------
"Seller"
SECURITY CAPITAL ATLANTIC INCORPORATED,
a Maryland corporation
By:
-----------------------------------
Name:
------------------------------
Title:
------------------------------
"Buyer"
ESCROW HOLDER'S ACKNOWLEDGEMENT
-------------------------------
The undersigned hereby executes this Agreement to evidence its
agreement to act as Escrow Holder in accordance with the terms of this
Agreement.
Date: ________________CHICAGO TITLE INSURANCE COMPANY,
a ______________________________________
By: ___________________________________
Name: _____________________________
Title: ____________________________
"Escrow Holder"
EXHIBIT LIST
------------
"A" - Property Description
"B" - Personal Property List
"C" - Deed
"D" - Assignment and Assumption Agreement
"E" - Exceptions to Seller's Representations and
Warranties
"F" - Rent Roll
"G" - Service Agreements
"H" - Surveyor's Certificate
"I" - Proforma Rents
"J" - Notice to Tenants
EXHIBIT "A"
Property Description
EXHIBIT "B"
Personal Property List
EXHIBIT "C"
Deed
EXHIBIT "D"
Assignment and Assumption Agreement
EXHIBIT "E"
Exceptions to Seller's Representations and Warranties
NONE
EXHIBIT "F"
Rent Roll
EXHIBIT "G"
Service Agreements
Landscaping - L. Jones Landscape Associates
Pest Control - Atlanta Pest Control
Gate warranty - Riordan Protective Services
Alarm Warranty - X-truder
Patrol Service - Future Security
Copier Lease - Xerox
EXHIBIT "H"
Surveyor's Certificate
EXHIBIT "I"
Proforma Rents
EXHIBIT "J"
Notice to Tenants
