December 22, 1994
Securities and Exchange Commission
450 Fifth Street, N.W.
Judiciary Plaza
Washington, D.C. 20549
Re: Carlyle Real Estate Limited Partnership - XII
Commission File No. 0-12433
Form 8K
Gentlemen:
Transmitted, for the above-captioned registrant, is the electronically filed
executed copy of registrant's current report on Form 8K dated December 22,
1994.
Thank you.
Very truly yours,
CARLYLE REAL ESTATE LIMITED PARTNERSHIP - XII
By: JMB Realty Corporation
Corporate General Partner
By: GAILEN J. HULL
________________________________
Gailen J. Hull
Senior Vice President
GJH:jo
Enclosures
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): December 8, 1994
CARLYLE REAL ESTATE LIMITED PARTNERSHIP - XII
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(Exact name of registrant as specified in its charter)
Illinois 0-12433 36-3149589
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(State or other (Commission (I.R.S. 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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CARRARA PLACE OFFICE BUILDING
ENGLEWOOD, COLORADO
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ITEM 2. ACQUISITION OR DISPOSITION OF ASSETS. On December 8, 1994, Carlyle
Real Estate Limited Partnership - XII (the "Partnership") sold its interest in
Carrara Place Limited, a Colorado limited partnership, which owns the land,
building and related improvements of the Carrara Place Office Building (the
"Property"), located in Englewood, Colorado. The purchasers, Carrara Place
Investment Partners, Ltd. and F.A. Nemecek, are the Partnership's unaffiliated
venture partners in the Carrara Place Limited Partnership and the sale price
was determined by arm's-length negotiations. The Property is an approximately
231,000 square foot office building and, as the date of this report was
approximately 80% occupied.
The sale price of the Partnership's interest was $750,000 all of which
was received in cash at closing. Additionally, the Partnership's share of
long-term debt, in the amount of approximately $14,600,000 was assumed by the
purchasers. The Partnership estimates that it will recognize a gain of
approximately $5,500,000 for financial reporting purposes and approximately
$13,100,000 for Federal income tax purposes from this transaction.
The Partnership Agreement provides that sale proceeds are to be allocated
99% to the Limited Partners and 1% to the General Partners until receipt by
the Limited Partners of their initial contributed capital plus a stipulated
return thereon. Thereafter, distributions of sale proceeds are to be
allocated to the General Partners until the General Partners have received an
amount equal to 3% of the gross sales prices of any properties sold, then the
balance 85% to the Limited Partners and 15% to the General Partners. The
Limited Partners have not yet received cash distributions of sale or
refinancing proceeds in an amount equal to their initial capital investment in
the Partnership. Therefore, 1% of the initial proceeds of this sale are
distributable to the General Partners.
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 Partnership's interest in Carrara Place
Limited, beyond December 8, 1994, there will be no further rental income,
mortgage and other interest, depreciation, property operating expenses,
amortization of deferred expenses or venture partners' share of venture
operations recorded for the Carrara Place Office Building in the consolidated
financial statements of the Partnership, which for the Partnership's most
recent fiscal year (the year ended December 31, 1993) were approximately,
$1,873,000, $2,235,000, $809,000, $1,134,000, $120,000 and $1,312,000,
respectively. Rental income, mortgage and other interest, depreciation,
property operating expenses, amortization of deferred expenses and venture
partners' share of venture operations for Carrara were approximately $479,000,
$594,000, $210,000, $377,000, $60,000, and none, respectively, for the three
months ended September 30, 1994, and $1,149,000, $1,721,000, $615,000,
$957,000, $104,000 and $743,000, respectively, for the nine months ended
September 30, 1994. Also, as a result of the sale of the Partnership's
interest in Carrara Place Limited, there are no further assets and liabilities
related to Carrara Place Limited, which at September 30, 1994 consisted of
cash and other current assets of approximately $524,000; land and buildings
and improvements (net of accumulated depreciation) of approximately
$17,850,000; deferred expenses of approximately $673,000; venture partner's
deficit in venture of approximately $5,634,000; current liabilities of
$3,860,000; other liabilities of approximately $60,000 and long-term debt,
less current portion of approximately $25,012,000.
(c) Exhibits
10. Partnership Interest Redemption Agreement among Carlyle
Real Estate Limited Partnership - XII, Carrara Place Investment Partners,
Ltd., F.A. Nemecek and Carrara Place Limited dated November 23, 1994.
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.
CARLYLE REAL ESTATE LIMITED PARTNERSHIP - XII
By: JMB Realty Corporation
Corporate General Partner
By: GAILEN J. HULL
-----------------------------------
Gailen J. Hull
Senior Vice President
Dated: December 22, 1994
PARTNERSHIP INTEREST
REDEMPTION AGREEMENT
(Carrara Place Office Building; Englewood, Colorado)
THIS AGREEMENT made and entered into as of the ____ day of November,
1994, by and among CARLYLE REAL ESTATE LIMITED PARTNERSHIP-XII, an Illinois
limited partnership ("Carlyle"), CARRARA PLACE INVESTMENT PARTNERS, LTD., a
Colorado limited partnership ("CPIP"), F.A. NEMECEK, an individual
("Nemecek"), and CARRARA PLACE LIMITED, a Colorado limited partnership (the
"Partnership").
WITNESSETH, THAT WHEREAS:
A. Carlyle, CPIP and Nemecek constitute the sole partners in the
Partnership pursuant to that certain partnership agreement captioned "FIRST
AMENDED AND RESTATED ARTICLES OF LIMITED PARTNERSHIP OF CARRARA PLACE LIMITED"
dated as of September 22, 1993 (this agreement, together with all other
amendments or modifications entered into prior hereto, is herein collectively
called the "Partnership Agreement"). CPIP and Nemecek are individually and
collectively called the "Limited Partners". Except as otherwise set forth
herein, all terms used in a defined manner herein shall have the meanings set
forth for such terms in the Partnership Agreement.
B. The Partnership is the owner of that certain office building
located in Englewood, Colorado and commonly known as the "Carrara Place Office
Building" (the "Business Property").
C. Carlyle desires to tender to the Partnership, and the Limited
Partners desire Carlyle to tender to the Partnership, all of Carlyle's
interest in the Partnership and to have the Partnership redeem such interest
in full liquidation thereof in the manner and for the consideration
hereinafter set forth.
NOW, THEREFORE, in consideration of the premises and the respective
undertakings of the parties hereinafter set forth, it is hereby agreed as
follows:
1. Tender and Redemption of Partnership Interest.
A. For the consideration and on the terms and conditions hereinafter
set forth, Carlyle shall tender to the Partnership and the Partnership shall
redeem from Carlyle in full liquidation thereof, the interest of Carlyle in
the Partnership, as such interest is described in the Partnership Agreement,
including, but not limited to, Carlyle's interest in the capital and profits
and losses of the Partnership. The Partnership interest to be tendered and
redeemed as aforesaid is herein called the "Redemption Partnership Interest".
B. The consideration ("Redemption Consideration") for the Redemption
Partnership Interest shall be $750,000, payable on the "Closing Date" (as
such term is defined in Paragraph 2 below).
2. Closing.
A. Payment of Redemption Consideration. On the Closing Date, the
Partnership (without any payment or contribution obligation by Carlyle or any
negative impact on Carlyle), shall pay the Redemption Consideration to Carlyle
by delivering a bank or cashier's check drawn on a bank reasonably
satisfactory to Carlyle in the amount of $750,000. As used herein, "Closing
Date" means the date the Partnership, the permitted assigns of the Partnership
under the "Loan Sale Agreement" (as such term is defined below), John W.
Madden, Jr., a married individual ("Madden"), the John Madden Company, CPIP,
Nemecek or any affiliate, related party, successor or assign of any of the
foregoing (individually and collectively called a "Loan Buyer") acquires the
Lender's interest in that certain loan (the "Loan") by The Travelers Insurance
Company ("Travelers") to the Partnership that is evidenced and/or secured by,
among other things, that certain promissory note captioned "First Deed of
Trust Note" dated June 30, 1987 by the Partnership, as maker, in favor of
Travelers, as payee, in the stated principal amount of $23,000,000, as amended
by that certain promissory note captioned "Amended and Restated First Deed of
Trust Note" dated as of September 23, 1993 by the Partnership, as maker, in
favor of Travelers, as payee, in the stated principal amount of
$22,613,972.32, as secured by that certain deed of trust captioned "First Deed
of Trust and Security Agreement", by the Partnership, as trustor, to the
Public Trustee of the County of Arapahoe, State of Colorado, as trustee, for
the benefit of Travelers, as beneficiary, dated June 30, 1987, and recorded on
June 30, 1987 in Book 5194, Page 22 of the Arapahoe County Records, Colorado,
as amended by that certain modification agreement captioned "Agreement of
Modification of Note, Deed of Trust and Other Loan Documents" by and between
the Partnership and Travelers, dated as of September 23, 1993 and recorded on
September 30, 1993 in Book 7160, Page 316 of the Arapahoe County Records,
Colorado, and that certain Escrow Agreement dated September 23, 1993, by and
among the Partnership, Travelers, Madden and Land Title Guarantee Company, a
Colorado corporation, as the same have heretofore been amended, modified or
supplemented (the "Loan Documents"), but in no event later than December 29,
1994. The terms and conditions on which the Loan Buyer shall acquire the Loan
and Loan Documents from Travelers shall be memorialized in a binding,
definitive, purchase and sale agreement (the "Loan Sale Agreement") to be
mutually executed and delivered by Travelers and a Loan Buyer on or before the
Closing Date.
B. Delivery of Documents. On the Closing Date, the following
deliveries shall be made:
(1) Delivery by Carlyle. Carlyle shall deliver or cause to be
delivered to the Partnership the following items:
(a) Tender of Partnership Interest. Two counterpart originals of the
Tender and Redemption of Partnership Interest (the "Tender") in favor of the
Partnership, duly executed by Carlyle, and in the form of Exhibit "A",
hereunto annexed and made a part hereof.
(b) Opinion of Counsel for Carlyle. An opinion of the attorneys for
Carlyle (the "Carlyle Opinion"), dated as of the Closing Date, in the form of
Exhibit "B", hereunto annexed and made a part hereof.
(2) Delivery by the Partnership and the Limited Partners. The
Partnership and the Limited Partners shall deliver or cause to be delivered to
Carlyle the following items:
(a) Redemption of Partnership Interest. Two counterpart originals of
the Tender duly executed by the Partnership.
(b) Opinion of Counsel for the Partnership and the Limited Partners.
An opinion of the attorneys for the Limited Partners (the "Limited Partnership
Opinion"), dated as of the Closing Date, in the form of Exhibit "C", hereunto
annexed and made a part hereof.
C. Partnership Amendments. Carlyle and the Limited Partners shall
execute and deliver such amendments to the Partnership Agreement and the
Certificate of Limited Partnership of the Partnership and such other
Partnership documents as may be reasonably required to effectuate the tender
and redemption of Carlyle's interest in the Partnership hereunder. Without
limitation on the foregoing, the parties hereto acknowledge and agree that
concurrently with the tender and redemption of the Redemption Partnership
Interest, the Partnership Agreement will be amended (the "Partnership
Amendment") to reflect such tender and redemption and the admission of CPIP as
the general partner in the Partnership. The Partnership Amendment shall be in
the form of Exhibit "B".
D. No Prorations. The parties acknowledge that there shall be no
prorations at closing or otherwise for income or expenses (including for any
undistributed operating cash flow or other sums held by the Partnership).
E. Closing Costs. The Limited Partners shall pay all closing costs
in connection with the transactions contemplated in this Agreement and the
Loan Sale Agreement, including all documentary, filing, recording, conveyance,
transfer, intangible and other taxes, if any, recording or filing charges for
any instruments or documents which may be recorded or filed, if any,
Traveler's attorneys fees and costs (if provided for in the Loan Sale
Agreement), and all title fees, if any. The Limited Partners shall pay all
attorneys' fees and related expenses reasonably incurred by Carlyle from
November 1, 1994 through and including the Closing Date (whether or not the
transactions contemplated by this Agreement are consummated) in connection
with the preparation, negotiation and execution of this Agreement and the
closing of same.
F. Travelers Loan Documents. Immediately upon the Partnership's or a
Loan Buyer's receipt of any and all originals or copies of the "Carlyle Loan
Documents" or the "Traveler's Release", the Limited Partners shall deliver the
Carlyle Loan Documents and one duplicate original of the Traveler's Release to
Carlyle. As used herein, "Carlyle Loan Documents" means the following loan
documents: (1) that certain security agreement captioned "Security Agreement"
dated September 23, 1993, by Carlyle in favor of Travelers and (2) that
certain indemnification agreement captioned "Indemnification Agreement" dated
September 23, 1993 by Carlyle in favor of Travelers. As used herein,
"Traveler's Release" means that certain release captioned "Release" by
Travelers in favor of Carlyle, Madden, CPIP and Nemecek executed and delivered
by Travelers pursuant to the Loan Sale Agreement.
G. Partnership Books and Records. On or before the date that is
fifteen (15) days after the Closing Date, Carlyle shall deliver or cause to be
delivered to the Limited Partners copies of all of the Partnership's books and
records in its possession as opposed to the books and records in the property
manager's possession.
3. Profits and Losses of the Partnership Prior to Closing; Tax
Returns. Subject to the provisions set forth in paragraph 2C above, the
parties confirm that the profits and losses of the Partnership for the period
from January 1, 1994 through the Closing Date shall be allocated for tax
reporting purposes pursuant to the applicable provisions of the Partnership
Agreement (and in that connection, the profits and losses for such period
shall be calculated separately from the profits and losses for the balance of
1994 with due regard to the proration of any "base amounts" or "expense stops"
under any tenant leases). Carlyle and the Limited Partners will cooperate
with each other in providing and preparing such information and items as may
be required in order to timely prepare and deliver tax returns and other
similar items after the Closing Date. In connection therewith, Carlyle and
the Limited Partners agree that the Limited Partners shall prepare the
applicable 1994 (and subsequent calendar years, if applicable) tax returns of
the Partnership. Any return for the Partnership relating to the period of
time that Carlyle was a partner in the Partnership shall be subject to
Carlyle's prior written approval. In addition, after the Closing Date the
Partnership and the Limited Partners shall continue to provide Carlyle with
full access to all books and records of the Partnership and to all other
financial information as may be reasonably required in connection with such
determinations; provided, however, that Carlyle shall provide reasonable
advance notice to the Partnership and the Limited Partners of its need or
desire for such access and Carlyle shall pay for the cost and expense of any
copies made by it of such information.
4. Representations and Warranties.
A. Representations and Warranties of Carlyle. Carlyle hereby
represents and warrants to the Limited Partners as follows:
(1) General Disclaimer. Except as expressly set forth in
subparagraphs A(2) through A(6) below, the tender and redemption of the
Redemption Partnership Interest 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 the title to or physical or financial condition of the
Business Property or as to any fitness of purpose, merchantability or
habitability with respect to the Business Property or of any income, expenses,
charges, liens or encumbrances, rights or claims on, affecting or pertaining
to the Business Property or any part thereof. Each of the Limited Partners
and the Partnership acknowledges that except as to matters specifically set
forth in subparagraphs A(2) through A(6) below, the Redemption Partnership
Interest will be tendered to the Partnership solely on the basis of (a) the
Limited Partner's own physical and financial examination of the Business
Property and (b) information and knowledge in the Limited Partner's possession
and in the possession of the manager of the Business Property. As a result of
its existing interest in the Partnership and/or its affiliations with entities
or persons having an interest in the Partnership, as applicable, the Limited
Partners are not relying upon, and have no need to rely upon, any knowledge or
information in the possession of Carlyle with respect to any of the foregoing
matters except as set forth herein.
(2) Carlyle is a limited partnership, duly organized, validly and in
good standing existing under the laws of the State of Illinois.
(3) Carlyle is duly authorized, qualified and licensed under any and
all applicable laws, regulations, ordinances and orders to do all things
required of it, under and in connection with this Agreement.
(4) Subject to the representations and warranties of the Limited
Partners set forth in Paragraph 4B(3) below and the consent of Travelers,
Carlyle has the right, power and authority to enter into and perform the terms
of this Agreement and to consummate the transactions contemplated hereby.
(5) This Agreement and all agreements, instruments and documents
herein provided to be executed or to be caused to be executed by Carlyle are
(or, in the case of agreements, instruments and documents executed as of the
Closing Date, will be as of the Closing Date) duly authorized, executed and
delivered by, and binding upon, Carlyle.
(6) Carlyle owns the Redemption Partnership Interest, free and clear
of any and all security interests, liens, encumbrances, rights, options,
claims and demands (other than any security interests, rights and options
granted to CPIP and Nemecek under the Partnership Agreement and to Travelers
under the Loan Documents) of any person claiming by, through or under Carlyle.
B. Representations and Warranties of Limited Partners. Each Limited
Partner hereby represents and warrants to Carlyle as follows:
(1) CPIP is a limited partnership, duly organized and validly existing
under the laws of the State of Colorado.
(2) Each Limited Partner is duly authorized, qualified and licensed
under any and all applicable laws, regulations, ordinances and orders to do
all things required of it, under or in connection with this Agreement.
(3) Subject to the execution and delivery of the Loan Sale Agreement
by the parties thereto, each Limited Partner has the right, power and
authority to enter into and perform the terms of this Agreement and to
consummate the transactions contemplated hereby.
(4) This Agreement and all agreements, instruments and documents
herein provided to be executed or to be caused to be executed by each Limited
Partner is (or, in the case of agreements, instruments and documents executed
as of the Closing Date, will be as of the Closing Date) duly authorized,
executed and delivered by, and binding upon, each Limited Partner.
5. Additional Conditions.
A. Additional Conditions to the Partnership's and the Limited
Partners' Obligations. In addition to the conditions provided in other
provisions of this Agreement, the Partnership's and the Limited Partners'
obligations hereunder are conditioned on the following:
(1) Performance by Carlyle. The due performance by Carlyle of each
and every undertaking and agreement to be performed by it hereunder
(including, but not limited to, the delivery of the items specified in
paragraph 2 hereof) and the truth of each representation and warranty made in
this Agreement by Carlyle at the time as of which the same is made and as of
the Closing Date as if made on and as of the Closing Date.
(2) Absence of Carlyle Bankruptcy/Dissolution Event. That at no time
on or before the Closing Date shall any of the following have been done by,
against or with respect to Carlyle or JMB Realty Corporation in its capacity
as a general partner of Carlyle: (a) the commencement of a case under
Title 11 of the U.S. Code, as now constituted or hereafter amended, or under
any other applicable federal or state bankruptcy law or other similar law, (b)
the appointment of a trustee or receiver of any property interest, (c) an
assignment for the benefit of creditors, (d) an attachment, execution or other
judicial seizure of a substantial property interest, (e) the taking of,
failure to take or submission to any action indicating (after reasonable
investigation) an inability to meet its financial obligations as they accrue,
or (f) a dissolution.
B. Additional Conditions to Carlyle's Obligations. In addition to
the conditions provided in other provisions of this Agreement, Carlyle's
obligations hereunder are conditioned on the following:
(1) Performance by the Limited Partners and the Partnership. The due
performance by each Limited Partner and the Partnership of each and every
undertaking and agreement to be performed by it or any member thereof
(including, but not limited to, the payment of the Redemption Consideration
and the delivery of the items specified in paragraph 2 hereof) and the truth
of each representation and warranty made in this Agreement by the Limited
Partners at the time as of which the same is made and as of the Closing Date
as if made on and as of the Closing Date.
(2) Absence of Limited Partner or Partnership Bankruptcy/Dissolution
Event. That at no time on or before the Closing Date shall any of the
following have been done by, against or with respect to either Limited Partner
or the Partnership: (a) the commencement of a case under Title 11 of the U.S.
Code, as now constituted or hereafter amended, or under any other applicable
federal or state bankruptcy law or other similar law, (b) the appointment of a
trustee or receiver of any property interests, (c) an assignment for the
benefit of creditors, (d) an attachment, execution or other judicial seizure
of a substantial property interest, (e) the taking of, failure to take or
submission to any action indicating (after reasonable investigation) an
inability to meet his or its financial obligations as they accrue, or (f) a
dissolution.
(3) Closing of Loan Sale Date. The sale of Travelers' interest in the
Loan Documents pursuant to the Loan Sale Agreement shall close in accordance
with its terms on the Closing Date.
(4) Travelers' Consent. Travelers shall consent to the terms and
provisions of this Agreement, including, but not limited to, the tender and
redemption of Carlyle's partnership interest.
C. Outside Date. In the event that for any reason the Loan Sale
Agreement shall not be executed, delivered and closed on or before December
29, 1994, then this Agreement shall automatically terminate and except as
otherwise set forth in Paragraphs 2E and 8, the parties shall have not have
any further duties, obligations or liabilities hereunder. Time is of the
essence with respect to the provisions of this paragraph 5C.
6. Indemnification.
A. Indemnification by the Partnership and the Limited Partners. The
Partnership (from and after the Closing Date) and each of the Limited Partners
shall hold harmless, indemnify and defend Carlyle and its constituent partners
from and against (1) all claims, rights, demands, obligations, liabilities,
losses, damages, costs and expenses (including reasonable attorneys' fees) of
any kind or nature arising or accruing at any time on or after the Closing
Date and related to the Business Property or any of the "Collateral
Agreements" and not caused by the actions of Carlyle as the general partner of
the Partnership before the Closing Date such that Carlyle would be liable
under the Partnership Agreement to the Limited Partners for such actions (and
each Limited Partner and the Partnership hereby releases Carlyle from all such
matters), (2) any and all loss, damage, liability, claim, cost and expense
resulting from any inaccuracy in or breach of any representation and warranty
of either Limited Partner under this Agreement (or any agreement executed in
connection herewith) or resulting from any breach or default by the
Partnership or either Limited Partner under this Agreement (or any agreement
executed in connection herewith), or (3) resulting from any breach or default
under the Loan Documents caused by this Agreement or the transactions
contemplated hereunder.
B. Indemnification by Carlyle. Carlyle shall hold harmless,
indemnify and defend the Limited Partners from and against any loss or damage
to a Limited Partner resulting from any inaccuracy in or breach of any
representation and warranty of Carlyle under this Agreement (or any agreement
executed in connection herewith) or resulting from any breach or default by
Carlyle under this Agreement (or any agreement executed in connection
herewith).
C. General Indemnity Provisions. Each indemnity provided for under
this Agreement shall be subject to the following provisions:
(1) The indemnity shall cover the costs and expenses of the
indemnitees, including reasonable attorneys' fees, related to any actions,
suits or judgments incident to any of the matters covered by such indemnity.
(2) The indemnitee shall notify the indemnitor of any claim against
the indemnitee covered by the indemnity within 30 days after it has notice of
such claim, but failure to notify the indemnitor shall in no case prejudice
the rights of the indemnitee under this Agreement unless the indemnitor shall
be prejudiced by such failure and then only to the extent the indemnitor shall
be prejudiced by such failure. Should the indemnitor fail to discharge or
undertake to defend the indemnitee against such liability upon learning of the
same, then the indemnitee may settle such liability to the extent commercially
reasonable, as determined by the indemnitee in its good faith business
judgment, and the liability of the indemnitor hereunder 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
reasonable attorneys' fees, incurred by the indemnitee in effecting such
settlement.
D. Non-Waiver. Except as specifically set forth herein, nothing
contained in this paragraph or any other paragraph of this Agreement shall be
construed or operate as a waiver or release of any obligation or liability
arising or accruing under the Partnership Agreement or any Collateral
Agreement prior to the consummation of the tender and redemption contemplated
hereunder and, except as specifically set forth herein, the parties hereto
agree that they shall retain their respective obligations and liabilities
under the Partnership Agreement and Collateral Agreements accruing prior to
such closing; provided, however, that subject to the indemnity provided for
this Paragraph 6, Carlyle, on the one hand, and each Limited Partner and the
Partnership on the other hand, each releases the other with respect to the
Partnership Agreement and any Collateral Agreement for events or matters first
arising after the Closing Date.
E. Definition. As used herein, "Collateral Agreements" means the
individual and collective agreements, instruments, documents and covenants
entered into under or pursuant to or in connection with or concurrently with
the Partnership Agreement and any amendment or amendments made at any time or
times heretofore to any such agreements, instruments, documents or covenants.
7. Release.
A. Release. As further consideration for Carlyle's execution of this
Agreement, each Limited Partner and the Partnership and their respective
successors and assigns (collectively, the "Redemption Parties"), as of the
Closing Date, hereby absolutely and irrevocably waives, releases, and forever
discharges Carlyle, and its partners, trustees, beneficiaries, officers,
shareholders, directors, agents, servants, contractors, employees, parent and
subsidiary corporations and predecessors-in-interest (collectively the
"Released Parties") from any and all claims, rights, demands, actions, suits,
causes of action, damages, counterclaims, defenses, losses, costs,
obligations, liabilities and expenses of every kind or nature (collectively,
"Claims"), known or unknown, suspected or unsuspected, fixed or contingent,
foreseen or unforeseen, arising out of or relating directly or indirectly to
any circumstances or state of facts pertaining to the Property or the
Partnership; provided, however, that the foregoing shall not constitute a
release of (i) any of Carlyle's obligations under this Agreement, including,
but not limited to, its representations and warranties provided for in
Paragraph 4B above, and (ii) any liability of Carlyle as the general partner
of the Partnership for its actions occurring before the Closing Date such that
Carlyle would be liable to the Limited Partners under the Partnership
Agreement for such actions.
B. Non-Reliance. Each of the Redemption Parties hereby acknowledges
that it has not relied upon any representation of any kind made by Carlyle in
making the foregoing release.
C. No Transfer of Claims. Each of the Redemption Parties represents
and warrants that it has not heretofore assigned, or transferred, or purported
to assign or to transfer, to any person or entity, any Claim released
hereunder or any portion thereof or interest therein, and each of the
Redemption Parties agrees to indemnify, defend and hold the Released Parties
harmless from and against any and all such Claims based on or arising out of
any such assignment or transfer or purported assignment or transfer.
D. No Admission of Liability. It is understood and agreed that this
Paragraph 7 shall not be deemed or construed as an admission by Carlyle of
liability of any nature whatsoever arising from or related to the subject of
this Paragraph 7.
E. Advice of Counsel. Each of the Redemption Parties hereby agrees,
represents and warrants that it has had advice of counsel of its own choosing
in negotiations for and the preparation of this Agreement, including the
foregoing release, that it has read the provisions of this Agreement,
including the foregoing release, and that it is fully aware of its contents
and legal effect.
F. Damages and Attorneys' Fees. Each of the Redemption Parties
agrees that if it hereafter commences, joins in, or in any manner seeks,
relief through any suit arising out of, based upon, or relating to any of the
Claims or in any manner asserts against such Released Parties, or any of them,
any of the Claims, then the undersigned will pay to such Released Parties, and
each of them, in addition to any other damages caused to such Released Parties
thereby, all reasonable attorneys' fees incurred by such Released Parties in
defending or otherwise responding to said suit or claim.
8. Right to Sell Business Property. The Limited Partners agree that
notwithstanding anything to the contrary in the Partnership Agreement,
including but not limited to, Section 6.1(b) of the Partnership Agreement, in
the event that for any reason (other than any breach or default by Carlyle
under this Agreement, which solely prevents the Limited Partners from
acquiring Carlyle's interest in the Partnership) the Limited Partners do not
acquire Carlyle's interest in the Partnership on or before December 29, 1994,
then Carlyle shall have the sole and unrestricted right and discretion to sell
all or any part of the Business Property to any party on any terms without any
consent or approval by the Limited Partners or their respective successors and
assigns. In connection with any sale or contemplated sale of all or any part
of the Business Property, Carlyle shall have the unrestricted right and
discretion to contact, offer all or any part of the Business Property to,
negotiate with, enter into contracts with and to sell all or any part of the
Business Property to any party or entity that the Limited Partners may have
dealt or worked with, contacted, negotiated with or contracted with in
connection with the the Loan Buyer's contemplated acquisition of the Loan and
the Loan Documents and/or their contemplated acquisition of Carlyle's
partnership interest. Without limitation on the foregoing, the Limited
Partners agree that neither Carlyle nor any of its affiliates or related
parties, including but not limited to, JMB Realty Corporation, shall have any
duty, obligation or liability to the Limited Partners in connection with such
sale or any contemplated sale and that no claims or demands shall be made or
any causes of action asserted by the Limited Partners against Carlyle, its
affiliates and related parties in connection with such sale or contemplated
sale. Nothing contained herein shall modify the parties' rights and
obligations under Articles III, IV and VIII of the Partnership Agreement
relating to distributions, allocation of profits and losses and dissolution of
the Partnership.
9. Successors and Assigns. 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 hereto. Notwithstanding the foregoing,
neither the Limited Partners nor the Partnership may assign its rights,
duties, obligations and liabilities under this Agreement without the prior
written consent of Carlyle, which consent shall not be unreasonably withheld
with respect to any assignment by a Limited Partner of its rights, duties,
obligations and liabilities. Such consent shall not release the assignor from
any of its rights, duties, obligations or liabilities under this Agreement.
Any consent to one assignment shall not be deemed to be a consent to any other
assignment. Each Limited Partner or the Partnership, as applicable, shall
give notice of any such transfer as aforesaid to Carlyle not later than five
days prior to the Closing Date.
10. Brokers. Carlyle represents and warrants to each Limited Partner,
and each Limited Partner represents and warrants to Carlyle, that no broker or
finder has been engaged by it, respectively, in connection with this
Agreement. In the event of a claim for a broker's or finder's fee or
commission in connection with this Agreement which claim is based upon any
agreement alleged to have been made by a party hereto, then such party shall
indemnify and defend the other party from and against such claim.
11. Further Instruments. Each party will, whenever and as often as it
shall be requested so to do by the other, cause to be executed, acknowledged
or delivered any and all such further instruments and documents as may be
necessary or proper, in the reasonable opinion of the requesting party, in
order to carry out the intent and purpose of this Agreement or any agreement
executed by all the parties hereto in connection herewith.
12. Limitation of Liability. No constituent partner in or agent of
Carlyle, 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 Carlyle (including, but not
limited to, JMB Realty Corporation) 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 each Limited Partner and the
Partnership and its successors and assigns and, without limitation, all other
persons and entities, shall look solely to Carlyle's assets for the payment of
any claim or for any performance, and each Limited Partner and the
Partnership, 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 Carlyle (or in any other constituent partner of
Carlyle), nor any obligation of any constituent partner in Carlyle (or in any
other constituent partner of Carlyle) to restore a negative capital account or
to contribute capital to Carlyle (or to any other constituent partner of
Carlyle), shall at any time be deemed to be the property or an asset of
Carlyle or any such other constituent partner (and neither the Limited
Partners nor the Partnership nor any of their successors or assigns shall have
any right to collect, enforce or proceed against or with respect to any such
negative capital account or a partner's obligation to restore or contribute).
13. Survival. All warranties, representations, covenants, obligations
and agreements contained in this Agreement shall survive the closing hereunder
and the tender, transfer and conveyance of the Redemption Partnership Interest
hereunder and any and all performances hereunder.
14. Miscellaneous. This Agreement contains the entire agreement
between the parties respecting the matters set forth and supersedes all prior
agreements between the parties hereto respecting such matters. Captions shall
not be used in construing this Agreement. This Agreement shall be construed
in accordance with the laws of the State of Illinois. The termination of this
Agreement pursuant to the terms hereof shall in no event release any party
from liability for any breach hereof by such party.
15. Notices. Any notice which a party is required or may desire to
give any other party shall be in writing and may be personally delivered or
given by United States registered or certified mail, return receipt requested,
or by overnight courier service such as Federal Express, addressed as follows:
to Carlyle, 900 North Michigan Avenue, 19th Floor, Chicago, Illinois 60611,
Attention: Mr. Robert J. Chapman (with a copy to Pircher, Nichols & Meeks,
1999 Avenue of the Stars, Suite 2600, Los Angeles, California 90067,
Attention: Real Estate Notices/JBN); to the Limited Partners or the
Partnership, 6312 South Fiddler's Green Circle, Suite 350N, Englewood,
Colorado 80114, Attention: Mr. John W. Madden, Jr. (with a copy to Sheldon &
Tessler, P.C., 7951 East Maplewood Avenue, Suite 326, Englewood, Colorado
80111, Attention: Carl H. Tessler, Esq. and Michael A. Sheldon, Esq.);
subject to the right of a party to designate a different address for itself by
notice similarly given. Any notice so given by United States mail shall be
deemed to have been given on the second day after the same has been deposited
in the United States mail as registered or certified mail, addressed as above
provided, with postage thereon fully prepaid. Any notice not given by
registered or certified mail as aforesaid shall be deemed to have been given
upon receipt of the same by the party to whom the same is to be given.
16. Counterparts. This Agreement may be executed in any number of
counterparts, provided each of the parties hereto executes at least one
counterpart; each such counterpart hereof shall be deemed to be an original
instrument, but all such counterparts, together, shall constitute but one
agreement.
17. Partnership Liability. Notwithstanding anything to the contrary
in this Agreement or any other agreement, including, but not limited to, the
Partnership Agreement, Carlyle, in its capacity as the general partner in the
Partnership prior to the Closing Date, shall not have any duty, obligation or
liability under this Agreement; provided, however, that the foregoing
provision shall not release Carlyle from any of its duties and obligations
under this Agreement undertaken by Carlyle in its individual capacity.
Without limitation on the foregoing, each Limited Partner shall be jointly and
severally liable for all duties, obligations and liabilities of the
Partnership to Carlyle under the Agreement notwithstanding anything to the
contrary set forth in the Partnership Agreement. In addition, in no event
shall Carlyle, in its capacity as a partner in the Partnership, have any
payment or contribution obligation in connection with any financial
obligations of the Partnership under the Loan Sale Agreement, including, but
not limited to, any payment to extend the date for the purchase and sale of
the Loan Documents thereunder and any payment of Traveler's attorneys' fees
and costs thereunder.
18. Limited Partners' Waiver. Except as otherwise expressly provided
for under this Agreement, each of the Limited Partners waives any and all of
its rights to acquire the Redemption Partnership Interest under the
Partnership Agreement or otherwise, including, but not limited to, Section 7.1
of the Partnership Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day and year first above written.
CARLYLE REAL ESTATE LIMITED PARTNERSHIP-XII
an Illinois limited partnership,
By JMB REALTY CORPORATION,
a Delaware corporation,
General Partner
By:
Name:
Title:
" "Carlyle"
CARRARA PLACE INVESTMENT PARTNERS, LTD.,
a Colorado limited partnership,
By PLAZA DEVELOPERS HOLDINGS, LLC
a Colorado limited liability company,
General Partner
By: JOHN W. MADDEN, JR.
-------------------
John W. Madden, Jr.
Managing Member
" "CPIP"
F.A. NEMECEK
" "Nemecek"
CARRARA PLACE LIMITED,
a Colorado limited partnership,
By CARLYLE REAL ESTATE LIMITED PARTNERSHIP-XII
an Illinois limited partnership,
By JMB REALTY CORPORATION,
a Delaware corporation,
General Partner
By:
Name:
Title:
By CARRARA PLACE INVESTMENT PARTNERS, LTD.,
a Colorado limited partnership,
Limited Partner
By PLAZA DEVELOPERS HOLDINGS, LLC
a Colorado limited liability company,
General Partner
By: JOHN W. MADDEN, JR.
-------------------
John W. Madden, Jr.
Managing Member
By
F.A. NEMECEK
Limited Partner
"Partnership"
<PAGE>
EXHIBIT LIST
(Carrara Place Office Building, Englewood, Colorado)
A - Tender and Redemption of Partnership Interest
B - Opinion of Carlyle's Counsel
C - Opinion of the Limited Partners' and the Partnership's
Counsel
D - Amendment to Partnership Agreement
SECOND AMENDMENT
TO
FIRST AMENDED AND RESTATED
ARTICLES OF LIMITED PARTNERSHIP OF
CARRARA PLACE LIMITED
THIS SECOND AMENDMENT TO FIRST AMENDED AND RESTATED ARTICLES OF
LIMITED PARTNERSHIP OF CARRARA PLACE LIMITED is made and entered as of
December __, 1994 by and between, CARRARA PLACE INVESTMENT PARTNERS, LTD.,
a Colorado limited partnership ("CPIP"), and F.A. NEMECEK, an individual
("Nemecek").
W I T N E S S E T H, T H A T:
A. WHEREAS, Carlyle Real Estate Limited Partnership-XII,
an Illinois limited partnership ("Carlyle"), CPIP and Nemecek are partners
in Carrara Place Limited (the "Partnership") pursuant to that certain
limited partnership agreement (the "Partnership Agreement") captioned
"FIRST AMENDED AND RESTATED ARTICLES OF LIMITED PARTNERSHIP OF CARRARA
PLACE LIMITED", dated as of September 22, 1993, as amended by that certain
First Amendment to First Amended and Restated Articles of Limited
Partnership of Carrara Place Limited dated as of December __, 1994, by and
between Carlyle, CPIP and Nemecek.
B. WHEREAS, pursuant to that certain redemption agreement
captioned "PARTNERSHIP INTEREST REDEMPTION AGREEMENT", dated as of November
23, 1994, by and among Carlyle, CPIP, Nemecek and the Partnership, the
parties hereto desire to modify and amend the Partnership Agreement to
provide for the admission of CPIP as the general partner of the
Partnership, the tender of Carlyle's general partnership interest in the
Partnership, the redemption of Carlyle's interest in the Partnership in
full liquidation thereof and the withdrawal of Carlyle as a partner in the
Partnership, all on the terms and conditions set forth herein.
NOW, THEREFORE, for good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, Carlyle, CPIP and
Nemecek hereby agree as follows:
1. Withdrawal of Carlyle. Effective as of the date hereof,
Carlyle has tendered its interest (the "Interest") in the Partnership back
to the Partnership, including, but not limited to, Carlyle's interest in
the capital and profits and losses of the Partnership. The Partnership has
redeemed the Interest in full liquidation thereof. Concurrently therewith,
Carlyle hereby withdraws as a general partner in the Partnership. From and
after the date herefrom, Carlyle shall not have any interest in the
Partnership, including, but not limited to, any interest in the capital and
profits and losses of the Partnership.
2. Admission of CPIP As General Partner. Concurrently with
Carlyle's withdrawal from the Partnership, CPIP is admitted as the sole
general partner in the Partnership with full power and authority to manage
the business and affairs of the Partnership. The address of CPIP is as
follows:
c/o The John Madden Company
6312 South Fiddler's Green Circle
Suite 350N
Englewood, Colorado 80114
All references to "General Partner" in the Partnership Agreement shall be
deemed to refer to "CPIP", in its capacity as the general partner, and not
Carlyle.
Except as modified and amended by this Agreement, the terms and
provisions of the Partnership Agreement are ratified and confirmed in their
entirety.
<PAGE>
IN WITNESS WHEREOF, the undersigned have executed this
Amendment as of the day and year first above written.
GENERAL PARTNER
CARRARA PLACE INVESTMENT PARTNERS, LTD.,
a Colorado limited partnership
By PLAZA DEVELOPERS HOLDINGS, LLC,
a Colorado limited liability company,
General Partner
By:
_________________________________
Name:
_______________________________
Title:
______________________________
LIMITED PARTNERS
CARRARA PLACE INVESTMENT PARTNERS, LTD.,
a Colorado limited partnership,
By PLAZA DEVELOPERS HOLDINGS, LLC,
a Colorado limited liability company,
General Partner
By:
John W. Madden, Jr.
Managing Member
"CPIP"
F.A. NEMECEK
"Nemecek"
WITHDRAWING PARTNER
Carlyle Real Estate Limited Partnership-XII, an Illinois
limited partnership, joins in the execution of this Amendment to evidence
its withdrawal as a partner in Carrara Place Limited, a Colorado limited
partnership.
CARLYLE REAL ESTATE LIMITED
PARTNERSHIP-XII,
an Illinois limited partnership
By JMB REALTY CORPORATION,
a Delaware corporation,
General Partner
By: ___________________________
Name: _________________________
Title: ________________________
"Carlyle"
TENDER AND REDEMPTION OF PARTNERSHIP INTEREST
FOR GOOD AND VALUABLE CONSIDERATION, the receipt and
sufficiency of which are hereby acknowledged, CARLYLE REAL ESTATE LIMITED
PARTNERSHIP-XII, an Illinois limited partnership ("Carlyle"), hereby
transfers, assigns, conveys and tenders to CARRARA PLACE LIMITED, a
Colorado limited partnership (the "Partnership"), the general partnership
interest (the "Interest") of Carlyle in the Partnership, as such interest
is described in the "Partnership Agreement" including, but not limited to,
Carlyle's interest in the capital and profits and losses of the
Partnership, exclusive of any capital, profits, losses, distributions or
any other sums or proceeds which may have accrued in favor of Carlyle under
the Partnership Agreement prior to the date hereof. As used herein,
"Partnership Agreement" means that certain partnership agreement captioned
"FIRST AMENDED AND RESTATED ARTICLES OF LIMITED PARTNERSHIP OF CARRARA
PLACE LIMITED", dated as of September 22, 1993, by and among Carlyle,
Carrara Place Investment Partners, Ltd., a Colorado limited partnership
("CPIP"), and F.A. Nemecek, an individual ("Nemecek"). This Assignment and
Redemption of Partnership Interest is given pursuant to that certain
agreement captioned "PARTNERSHIP INTEREST REDEMPTION AGREEMENT" (which
agreement, together with any and all amendments thereto, is herein called
the "Agreement"), dated as of November ___, 1994 by and among Carlyle,
CPIP, Nemecek and the Partnership.
Carlyle makes no representations or warranties of any kind or
nature whatsoever hereunder, except as expressly provided for in the
Agreement.
The terms and provisions of paragraph 12 of the Agreement are
incorporated herein by this reference as if herein set out in full.
IN WITNESS WHEREOF, Carlyle has executed this Assignment as
of the ___ day of December, 1994.
CARLYLE REAL ESTATE LIMITED
PARTNERSHIP-XII,
an Illinois limited partnership
By JMB REALTY CORPORATION,
a Delaware corporation,
General Partner
By: ___________________________
Name: _________________________
Title: ________________________
"Carlyle"
REDEMPTION OF PARTNERSHIP INTEREST
The Partnership hereby redeems the Interest in full liquidation
thereof and hereby releases Carlyle from all of the duties, obligations and
liabilities of Carlyle under or pursuant to the Interest arising, occurring
or accruing from and after the date hereof.
IN WITNESS WHEREOF, the Partnership has executed this
Redemption as of the day of December, 1994.
CARRARA PLACE LIMITED,
a Colorado limited partnership
By CARRARA PLACE INVESTMENT PARTNERS, LTD.,
a Colorado limited partnership,
General Partner
By PLAZA DEVELOPERS HOLDINGS, LLC,
a Colorado limited liability company,
General Partner
By:
__________________________
Name:
________________________
Title:
_______________________
"Partnership"
