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): July 7, 1997
CARLYLE REAL ESTATE LIMITED PARTNERSHIP - XIII
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(Exact name of registrant as specified in its charter)
Illinois 0-12791 36-3207212
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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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SHERRYLANE PLACE OFFICE BUILDING
Dallas, Texas
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ITEM 2. ACQUISITION OR DISPOSITION OF ASSETS. Carlyle Real Estate Limited
Partnership-XIII (the "Partnership"), has an effective 99.99% interest in
Sherry Lane Associates. On September 12, 1997, Carlyle Real Estate Limited
Partnership - XIII through Sherry Lane Associates sold the land, related
improvements, and personal property (collectively, the "Property") of the
Sherry Lane Place office building located in Dallas, Texas. The Purchaser,
Cottonwood Realty Services, L.L.C., is not affiliated with the Partnership
or its General Partners and the sale price was determined by arm's-length
negotiations. The Property is an approximately 286,000 square foot office
building and, as of the date of the sale, was approximately 94% occupied.
The sale price of the Sherry Lane Place office building (pursuant to a
contract entered into in July, 1997) was $44,000,000 (before selling costs
and prorations of approximately $200,000) which was paid in cash at
closing. Sherry Lane Associates used a portion of the proceeds to repay
the existing mortgage notes including accrued and contingent interest (as
defined), of approximately $41,200,000. The sale is expected to result in
a gain in 1997 to Sherry Lane Associates of approximately $18,500,000 for
financial reporting purposes, all of which would be allocated to the
Partnership, and approximately $29,900,000 for Federal income tax purposes,
substantially all of which would be allocated to the Partnership. Pursuant
to the Sherry Lane Associates venture agreement, substantially all of the
net proceeds from the sale will be distributed to the Partnership. In
addition, in connection with the sale of this property and as is customary
in such transactions, Sherry Lane Associates agreed to certain
representations and warranties, with a stipulated survival period which
expires December 15, 1997. Although it is not expected, Sherry Lane
Associates may ultimately have some liability under such representations
and warranties.
The Partnership Agreement provides that the General Partners shall
receive as a distribution of the proceeds (net after expenses and
liabilities and retained working capital) from the sale or refinancing of a
real property of up to 3% of the selling price of a property, and that the
remaining net proceeds for any property sold be distributed 85% to the
Holders of Interests and 15% to the General Partners. However, prior to
such distributions being made, the Holders of Interests are entitled to
receive 99% of net sale or refinancing proceeds and the General Partners
are entitled to receive 1% until the Holders of Interests (i) have received
cumulative cash distributions from the Partnership's operations which, when
combined with net sale or refinancing proceeds previously distributed,
equal a 6% annual return on the Holders' average capital investment for
each year (their initial capital investment as reduced by net sale or
refinancing proceeds previously distributed) and (ii) have received cash
distributions of net sale or refinancing proceeds in an amount equal to the
Holders' aggregate initial capital investment in the Partnership. If upon
the completion of the liquidation of the Partnership and the distribution
of all Partnership funds, the Holders of Interests have not received the
amounts in (i) and (ii) above, the General Partners will be required to
return all or a portion of the 1% distribution of net sale or refinancing
proceeds described above in an amount equal to such deficiency in payments
to the Holders of Interests pursuant to (i) and (ii) above. The Holders of
Interests have not received and are not expected to receive distributions
to the levels of (i) and (ii) above. Therefore, no portion of the sale
proceeds will be distributed to the General Partners at this time.
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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 September
12, 1997, there will be no further rental income, interest income, mortgage
and other interest, property operating expenses or amortization of deferred
expenses recorded for Sherry Lane Place in the consolidated financial
statements of the Partnership. For the six months ended June 30, 1997, the
Partnership's consolidated financial statements reflected rental income,
interest income, mortgage and other interest, property operating expenses
and amortization of deferred expenses of approximately $10,844,000,
$202,000 $5,311,000, $6,344,000 and $457,000, respectively. Rental income,
interest income, mortgage and other interest, property operating expenses
and amortization of deferred expenses included for the six months ended
June 30, 1997 consolidated financial statements relating to Sherry Lane
Place were approximately $2,820,000, $9,000, $1,242,000, $1,362,000 and
$247,000, respectively. Such operating results reflected the classi-
fication of Sherry Lane Place as held for sale or disposition as of
December 31, 1996, and therefore, not subject to continued depreciation as
of such date. Also, as a result of the sale of the Property, there are no
further assets and liabilities related to Sherry Lane Place, which at June
30, 1997 consisted of cash and other current assets of approximately
$542,000; land, building and improvements (net of accumulated depreciation)
of approximately $24,406,000; accrued rents receivable of approximately
$326,000; deferred expenses of approximately $817,000; current liabilities
of approximately $40,800,000 and non-current liabilities of approximately
$366,000.
(c) Exhibit
10.1. Purchase Agreement between Sherry Lane Associates and
Cottonwood Realty Services, L.L.C. dated July 7, 1997.
10.2. First Amendment to Purchase Agreement between Sherry
Lane Associates and Cottonwood Realty Services, L.L.C. dated August 6,
1997.
10.3 Request for Extension of Due Diligence Period related
to the Purchase Agreement between Sherry Lane Associates and Cottonwood
Realty Services, L.L.C. dated August 8, 1997.
10.4. Extension of Due Diligence period related to the
Purchase Agreement between Sherry Lane Associates and Cottonwood Realty
Services, L.L.C. dated August 12, 1997.
10.5. Second Amendment to Purchase Agreement between Sherry
Lane Associates and Cottonwood Realty Services, L.L.C., dated August 13,
1997.
10.6. Extension of closing date related to the Purchase
Agreement between Sherry Lane Associates and Cottonwood Realty Services,
Ltd. dated September 10, 1997.
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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 - XIII
BY: JMB Realty Corporation
(Corporate General Partner)
By: GAILEN J. HULL
Gailen J. Hull
Senior Vice President
Principal Accounting Officer
Dated: September 26, 1997
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EXHIBIT INDEX
Exhibit
Number Description
_______ ___________
10.1. Purchase Agreement between Sherry Lane Associates
and Cottonwood Realty Services, L.L.C. dated July 7, 1997.
10.2. First Amendment to Purchase Agreement between
Sherry Lane Associates and Cottonwood Realty Services, L.L.C. dated August
6, 1997.
10.3 Request for Extension of Due Diligence Period
related to the Purchase Agreement between Sherry Lane Associates and
Cottonwood Realty Services, L.L.C. dated August 8, 1997.
10.4. Extension of Due Diligence period related to the
Purchase Agreement between Sherry Lane Associates and Cottonwood Realty
Services, L.L.C. dated August 12, 1997.
10.5. Second Amendment to Purchase Agreement between
Sherry Lane Associates and Cottonwood Realty Services, L.L.C., dated August
13, 1997.
10.6. Extension of closing date related to the Purchase
Agreement between Sherry Lane Associates and Cottonwood Realty Services,
Ltd. dated September 10, 1997.
EXHIBIT 10.1
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PURCHASE AGREEMENT
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(5956 Sherry Lane; Dallas, Texas)
THIS AGREEMENT is made and entered into as of July 7, 1997 (the
"Effective Date") by and between SHERRY LANE ASSOCIATES, a Texas general
partnership (hereinafter called "Seller"), and COTTONWOOD REALTY SERVICES,
L.L.C., a Texas limited liability company (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 at
5956 Sherry Lane, in the City of Dallas, County of Dallas, State of Texas,
consisting primarily of an office building (the "Building") sometimes known
as "5956 Sherry Lane".
B. Buyer desires to purchase 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, structures and fixtures
located upon the Land, all right, title and interest of Seller in and to
those items of personal property described in Exhibit "B" attached hereto
and made a part hereof, all right, title and interest of Seller in and to
the name "5956 Sherry Lane", and, to the extent assignable, all right,
title and interest of Seller in and to all leases, contract rights,
agreements, tenant lists, advertising material and telephone exchange
numbers relating solely to the Property (hereinafter, collectively, the
"Property"), all upon the terms, covenants and conditions hereinafter set
forth.
2. PURCHASE PRICE.
A. The purchase price (the "Purchase Price") for the
Property shall be the sum of Forty-Four Million Dollars ($44,000,000.00).
3. PAYMENT OF PURCHASE PRICE. The Purchase Price shall be paid to
Seller by Buyer as follows:
A. ESCROW DEPOSIT. Concurrently herewith, Buyer shall
deliver $100,000 (together with all interest thereon, the "Initial Escrow
Deposit") to Commonwealth Land Title Company, First City Center, 1700
Pacific, Suite 4740, Dallas, Texas, 75201, Attention: David Payne (which
company, in its capacity as escrow holder hereunder, is called "Escrow
Holder").
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In addition, if Buyer shall deliver the "Approval Notice" prior to the
expiration of the "Due Diligence Period", as provided (and defined) in
paragraph 4B hereof, Buyer shall concurrently therewith deliver an
additional deposit of $300,000 (the "Additional Escrow Deposit") to Escrow
Holder. Each deposit to be made hereunder shall be made by a bank or
cashier's check drawn on a major national money center banking institution
reasonably acceptable to Seller (or by other delivery of good funds
reasonably acceptable to Seller), and the amounts so deposited shall be
held by Escrow Holder as a deposit against the Purchase Price in accordance
with the terms and provisions of this Agreement. As used herein, the term
"Escrow Deposit" means the Initial Escrow Deposit and, from and after the
deposit thereof, the Additional Escrow Deposit, together with all interest
earned on such deposits while the same are held in escrow hereunder. At
all times in which 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 national 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
disposed of 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", as
hereinafter defined (the amount to be paid under this subparagraph B being
herein called the "Closing Payment").
4. CONDITIONS PRECEDENT
A. TITLE MATTERS.
(1) TITLE REPORT. Buyer will order a copy of a
preliminary title report ("Preliminary Title Report") covering the Property
from Commonwealth Title Insurance Company (which company, in its capacity
as title insurer hereunder, is herein called the "Title Company"). In
addition, Seller has ordered (and upon receipt shall deliver to Buyer) an
update of that certain survey of the Property dated December 10, 1983, and
last revised December 19, 1983, prepared by Brockette/Davis/Drake, Inc.,
2902 Carlisle Street, Dallas, Texas 75201, which survey shall be certified
to Buyer and Title Company ("Survey"). If Buyer shall deliver the Approval
Notice on or before the end of the Due Diligence 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. Approval by Buyer of
any additional exceptions to title or survey matters disclosed after the
end of the Due Diligence Period shall be a condition precedent to Buyer's
obligation to purchase the Property (Buyer hereby agreeing that its
approval of such additional exceptions to title or survey matters 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
5 days after receipt of written notice thereof or the Closing Date, Buyer
shall be deemed to have approved
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said exceptions. If, for any reason, on or before the Closing Date, Seller
does not cause any exceptions to title or survey matters which Buyer
disapproves (to the extent Buyer is permitted hereunder to so disapprove)
either to be removed or to obtain a title endorsement (if available)
insuring over such disapproved matter 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.
(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 Texas; provided, however, at Buyer's expense, Buyer may
require the Title Company to amend the survey exception to read "Shortages
in Area" only; and
(c) Such exceptions to title as may be approved
or deemed approval by Buyer pursuant to the provisions of subparagraph A(1)
above.
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 TLTA form issued in the
State of Texas ("Owner's Policy"), in the face amount of the Purchase
Price, which policy shows (i) title to the Property to be vested of record
in Buyer, and (ii) the above exceptions to be the only exceptions to title.
B. DUE DILIGENCE REVIEWS. Buyer shall have until 5:00 p.m.
(Central time) on the date which is 30 days after the Effective Date (the
"Due Diligence Period") within which to perform and 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, survey and title matters, 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 shall also make available to
Buyer, upon reasonable advance notice, such leases, service contracts and
other contracts respecting the Property as Buyer shall reasonably request
(to the extent the same are in Seller's possession). 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
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such damage, loss, cost or expense (the foregoing obligation surviving any
termination of this Agreement). Without limitation on the foregoing, in no
event shall Buyer (a) make any intrusive physical testing (environmental,
structural or otherwise) at the Property (such as soil borings, water
samplings or the like) without Seller's express written consent;
(b) contact any tenant of the Property without Seller's express written
consent; and (c) contact any governmental authority having jurisdiction
over the Property without Seller's express written consent (which consent
as to governmental authorities shall not be unreasonably withheld). 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. 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 and in the event of
termination hereunder, shall return all documents and other materials
furnished by Seller hereunder. Buyer shall keep all information or data
received or discovered in connection with any of the inspections, reviews
or examinations strictly confidential. If, on or before the expiration of
the Due Diligence Period, based upon such review, examination or
inspection, Buyer shall determine that it intends to proceed with the
acquisition of the Property, then Buyer shall promptly notify Seller and
Escrow Holder of such determination in writing (such notice being herein
called the "Approval Notice") and concurrently therewith Buyer shall
deliver the Additional Escrow Deposit to Escrow Holder (and thereafter,
Buyer shall have no further right to terminate this Agreement pursuant to
this paragraph 4B). If, however, 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 the Escrow Deposit shall be returned to
Buyer and this Agreement, and the obligations of the parties hereunder,
shall terminate. In the event that, on or before the expiration of the Due
Diligence Period, Buyer shall fail to have delivered the Approval Notice to
Seller (and concurrently therewith deposit the Additional Escrow Deposit
with Escrow Holder as provided for in this Agreement), Buyer shall be
deemed to have elected not to proceed with the acquisition of the Property
whereupon the Escrow Deposit shall be returned to Buyer and this Agreement,
and the obligations of the parties hereunder, shall terminate.
C. ESTOPPEL CERTIFICATES. It shall be a condition precedent
to Buyer's obligation to purchase the Property that Buyer shall receive
estoppel certificates ("TENANT ESTOPPEL CERTIFICATES"), from all tenants
leasing, in the aggregate, 8,000 square feet of space or more at the
Property, together with Tenant Estoppel Certificates from a sufficient
number of additional tenants at the Property so that, overall, Tenant
Estoppel Certificates shall be received with respect to not less than 75%
of the net rentable square feet of space covered by leases in effect as of
the date hereof, and with respect to those tenants not providing estoppel
certificates, Seller shall update the representations and warranties
contained in paragraph 7(A)(2)(a) of this Agreement with respect to such
tenants leases. Each Tenant Estoppel Certificate shall either be
substantially in the form provided in Exhibit "C" attached hereto and made
a part hereof or in the form, if any, prescribed in the applicable tenant
lease. Seller's sole obligation hereunder shall be to utilize commercially
reasonable efforts to obtain a Tenant Estoppel Certificate from
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each tenant at the Property (such reasonable efforts obligations not
including any obligation to institute legal proceedings or to expend monies
therefor), but such obligation shall not affect the provision of such
Tenant Estoppel Certificates as a condition precedent to closing.
5. CLOSING PROCEDURE. The sale and purchase herein provided shall
be consummated at a closing conference ("Closing Conference"), which shall
be held on the Closing Date at Seller's offices at 900 North Michigan
Avenue, Chicago, Illinois. As used herein, "Closing Date" means the date
which is 15 days after the end of the Due Diligence Period, or such earlier
date as may be agreed upon by Buyer and Seller.
A. ESCROW. On or before the Closing Date, the parties shall
deliver to Title Company the following: (1) by Seller, a duly executed and
acknowledged original special warranty deed ("Deed") in the form of Exhibit
"D" 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 and a notice from each of Buyer and Seller
authorizing Title Company to close the transactions as contemplated herein
(each of Buyer and Seller being 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 (x) the Deed shall be
delivered to Buyer by Title Company's depositing the same for recordation,
(y) the Closing Payment (and the Escrow Deposit) shall be delivered by
Title Company to Seller and (z) 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 "E" attached hereto and made a part
hereof;
(b) Duly executed and acknowledged certificates
regarding the "non-foreign" status of Seller;
(c) Evidence reasonably satisfactory to Buyer and
Title Company respecting the due organization of Seller and the due
authorization and execution of this Agreement and the documents required to
be delivered hereunder; and
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(d) 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 materially 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) Evidence reasonably satisfactory to Seller
and Title Company respecting the due organization of Buyer and the due
authorization and execution of this Agreement and the documents required to
be delivered hereunder; and
(c) 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 materially 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 title insurance
premium for the Owner's Policy at a rate not in excess of standard issue
rates, (ii) the costs to update the Survey, (iii) one-half of any escrow
charges, and (iv) any recording fees attributable to the documents
releasing the Loan. Buyer shall pay (i) all sales and use taxes, if any,
payable in connection with the transfers contemplated in this Agreement,
(ii) one-half of any escrow charges, (iii) the title premium associated
with amendment of the survey exception, and (iv) all fees, costs or
expenses incurred by Buyer in connection with Buyer's due diligence reviews
hereunder. Each of Seller and Buyer shall pay its own attorneys' fees and
its respective share of prorations as hereinafter provided.
Notwithstanding the foregoing, in the event the sale contemplated hereby
does not close on the Closing Date, then each party shall pay all costs
incurred by it.
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 on a per diem basis. 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. If
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).
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(b) All fixed and additional rentals under the
leases, security deposits 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 are held by Seller 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 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 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. Buyer shall reasonably cooperate with Seller 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 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 prior to the Close of Escrow 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 provided written
notice of such inaccuracy and request for correction is given within six
months after the date hereof. 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, but not later than six months after the date
hereof.
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; provided, however,
that Seller shall retain any proceeds received (and the right to receive
any proceeds) of rental income insurance or a temporary taking
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award that are attributable to a period prior to the Closing Date. 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,
Buyer may, at its option, terminate this Agreement by notice to Seller,
given on or before the Closing Date.
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 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 any
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, 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. Without limitation thereon, Buyer hereby
waives any and all rights of contribution or other rights or remedies
against Seller under the Commercial Environmental Responsibility
Compensation and Liability Act or any other applicable environmental laws,
rules or regulations.
(2) LIMITED REPRESENTATIONS AND WARRANTIES OF SELLER.
Subject to the provisions of Paragraph 7A(1) above, Seller hereby
represents and warrants that, except as set forth in Exhibit "F" attached
hereto and made a part hereof, Seller has no knowledge that any of the
following statements is untrue (and, for this purpose, Seller's knowledge
shall mean only the present actual knowledge of Glenn Emig, after having
Seller's third party property manager and Julia Strocchia, Seller's prior
portfolio manager for the Property, review the representations and
warranties contained herein, but otherwise without any duty to investigate
and with any imputed or constructive knowledge being excluded):
(a) RENT ROLL. Attached as Exhibit "G" and made
a part hereof is a true, complete and accurate list, as of the date
thereof, of all tenant leases respecting the Property, and Seller has not
received any written notice of a material default under any of such tenant
leases that remains uncured. Notwithstanding anything to the contrary
contained herein,
8
<PAGE>
Seller shall have no obligation or liability to Buyer with respect to any
of the foregoing matters which shall be confirmed as correct in any Tenant
Estoppel Certificate which may be delivered hereunder.
(b) LITIGATION. There is no pending action,
litigation, condemnation or other proceeding against the Property or
against Seller with respect to the Property.
(c) COMPLIANCE. Seller has received no written
notice from any governmental authority having jurisdiction over the
Property to the effect that the Property is not in compliance with
applicable laws and ordinances.
(d) SERVICE AGREEMENTS. Other than those which
are cancelable on 90 days' notice, Seller has not entered into any service
agreements or contracts ("Service Agreements") or other agreements (other
than as set forth in this Agreement) relating to the Property which will be
in force on the Closing Date, except as described in Exhibit "H" attached
hereto, and Seller has not received any written notice of any material
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 partnership, duly organized and validly existing under the laws of the
State of Texas, and is duly authorized and qualified to do all things
required of it under this Agreement. Seller has the capacity and authority
to enter into this Agreement and consummate the transactions herein
provided.
(f) ENVIRONMENTAL MATTERS. Except as set forth
in the reports described in Exhibit "I" attached hereto and made a part
hereof (the "Environmental Reports"), Seller has received no written notice
of the existence, deposit, storage, removal, burial or discharge of any
material known to Seller to be a "Hazardous Material" at, upon, under,
within or adjacent to the Property, in an amount which, in Seller's
reasonable judgment, would, as of the date hereof, give rise to an
"Environmental Compliance Cost". 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
9
<PAGE>
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.
B. REPRESENTATIONS AND WARRANTIES OF BUYER. Buyer hereby
represents and warrants that 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; Buyer is a limited liability
company, duly organized and validly existing and in good standing under the
laws of the State of Texas, and is duly authorized and qualified to do all
things required of it under this Agreement; and Buyer has the capacity and
authority to enter into this Agreement and consummate the transactions
herein provided.
C. SURVIVAL. Any cause of action of a party for a breach of
the foregoing representations and warranties shall survive until December
15, 1997, 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 maintain the Property in the same
manner as prior hereto pursuant to its normal course of business (such
maintenance 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 on
90 days' notice.
(3) Seller shall have the right to continue to offer
the Property for lease in the same manner as prior hereto pursuant to its
normal course of business and, upon request,
10
<PAGE>
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 material modifications of
existing leases thereafter without the consent of Buyer (which consent will
not be unreasonably withheld or materially delayed). In no event shall
Seller have any obligation to enter into any new lease or modify any
existing lease unless Buyer shall agree to pay or reimburse Seller on the
Closing Date for all tenant improvement costs and leasing commissions
incurred by Seller from and after the date hereof under or in connection
therewith (Buyer's agreement to pay or reimburse for such amounts not to be
unreasonably withheld).
8. TEXAS WAIVERS. WITHOUT LIMITATION ON ANY OTHER LIMITATION OF
SELLER'S LIABILITY HEREUNDER, IT IS THE INTENT OF SELLER AND BUYER TO WAIVE
ALL OF THE PROVISIONS (OTHER THAN SECTION 17.555) OF THE TEXAS DECEPTIVE
TRADE PRACTICES -- CONSUMER PROTECTION ACT, SUBCHAPTER E OF CHAPTER 17 OF
THE TEXAS BUSINESS AND COMMERCE CODE (THE "DTPA") AS SUCH PROVISIONS ARE OR
MAY BE APPLICABLE TO THIS AGREEMENT AND THE TRANSACTION EVIDENCED HEREBY.
ACCORDINGLY, SELLER AND BUYER HEREBY REPRESENT AND AGREE AS FOLLOWS:
(1) BUYER REPRESENTS TO SELLER THAT, WITH RESPECT TO THIS
AGREEMENT, BUYER IS A BUSINESS CONSUMER AS THAT TERM IS USED IN THE DTPA
(I.E., BUYER IS AN INDIVIDUAL, PARTNERSHIP OR CORPORATION WHO SEEKS OR
ACQUIRES BY PURCHASE OR LEASE, ANY GOODS OR SERVICES FOR COMMERCIAL OR
BUSINESS USE), THAT BUYER HAS ASSETS OF $5 MILLION OR MORE ACCORDING TO THE
MOST RECENT FINANCIAL STATEMENT OF BUYER PREPARED IN ACCORDANCE WITH
GENERALLY ACCEPTED ACCOUNTING PRINCIPLES, THAT BUYER HAS KNOWLEDGE AND
EXPERIENCE IN FINANCIAL AND BUSINESS MATTERS THAT ENABLE IT TO EVALUATE THE
MERITS AND RISKS OF A TRANSACTION AND THAT BUYER IS NOT IN A SIGNIFICANTLY
DISPARATE BARGAINING POSITION WITH RESPECT TO THIS AGREEMENT AND THE
TRANSACTION EVIDENCED HEREBY.
(2) SELLER AND BUYER HEREBY AGREE, FOR THEMSELVES AND THEIR
RESPECTIVE HEIRS, PERSONAL REPRESENTATIVES, SUCCESSORS AND ASSIGNS, THAT
ALL OF THE PROVISIONS OF THE DTPA (EXCEPT FOR SECTION 17.555 THEREOF) WHICH
ARE OR MAY BE APPLICABLE TO THIS AGREEMENT AND THE TRANSACTION EVIDENCED
HEREBY ARE HEREBY WAIVED, INCLUDING SPECIFICALLY, WITHOUT LIMITATION, ALL
RIGHTS AND REMEDIES RESULTING FROM OR ARISING OUT OF ANY AND ALL ACTS OR
11
<PAGE>
PRACTICES OF THE OTHER PARTY IN CONNECTION WITH THIS AGREEMENT AND THE
TRANSACTION EVIDENCED HEREBY, REGARDLESS OF WHETHER SUCH ACTS OR PRACTICES
OCCURRED BEFORE OR AFTER THE EXECUTION OF THIS AGREEMENT. THE PROVISIONS
OF THIS PARAGRAPH SHALL SURVIVE THE CLOSING OR ANY TERMINATION OF THIS
AGREEMENT.
executed initials
-----------------
INITIALS OF BUYER
9. DISPOSITION OF DEPOSIT. 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, AND BUYER SHALL NOT HAVE DEFAULTED UNDER THIS AGREEMENT, 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 FOR ANY REASON OTHER THAN THE FAILURE OF
SATISFACTION OF THE CONDITIONS DESCRIBED IN PARAGRAPH 4 HEREOF OR THE
TERMINATION OF THIS AGREEMENT IN ACCORDANCE WITH PARAGRAPH 6 HEREOF OR THE
DEFAULT OF SELLER, 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
12
<PAGE>
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.
executed initials executed initials
----------------- ----------------
Seller's Initials Buyer's Initials
10. MISCELLANEOUS.
A. BROKERS.
(1) Except as may be 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 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 10A(1) shall survive the closing of the transactions
hereunder or the earlier termination of this Agreement.
(2) IF BUYER HAS ENGAGED A BROKER, THE FOLLOWING
INFORMATION MUST BE COMPLETED AND SIGNED BY THE BROKER (FAILURE TO COMPLETE
AND SIGN CONSTITUTES BUYER'S REPRESENTATION AND WARRANTY THAT NO BROKER HAS
BEEN ENGAGED). Buyer has engaged Presidio Realty Advisors, Inc. ("Broker")
in connection with the sale of the Property hereunder and Buyer shall be
solely responsible for any and all fees, commissions or payments which may
be payable to Broker. Broker hereby joins in the execution of this
Agreement to evidence its agreement to look solely to Buyer for any and all
fees, commissions or payments which may be due Broker.
Date: July 3, 1997 Presidio Realty Advisors, Inc.
a Texas corporation
By: /s/ KENNETH A. KLAVENESS
Name: Kenneth A. Klaveness
Title: President
"Broker"
13
<PAGE>
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 $500,000.
(2) No constituent partner in or agent 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 (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 Buyer and its successors
and assigns and, without limitation, all other persons and entities, shall
look solely to Seller'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 (or in any other
constituent partner of Seller), nor any obligation of any constituent
partner in Seller (or in any other constituent partner of Seller) to
restore a negative capital account or to contribute capital to Seller (or
to any other constituent partner of Seller), shall at any time be deemed to
be the property or an asset of Seller 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
14
<PAGE>
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 Texas.
G. SUCCESSORS AND ASSIGNS. Buyer may not assign or transfer
its rights or obligations under this Agreement without the prior written
consent of Seller (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 a limited partnership in which
Buyer is the managing general partner and has not less than a 20% interest
in capital and profits in such limited partnership. 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 or 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), addressed as follows (subject to the right of a party to
designate a different address for itself by notice similarly given):
TO BUYER:
--------
Cottonwood Realty Services, L.L.C.
7557 Rambler Road, Suite 932
Dallas, Texas 75231
Attention: Robert J. Axley
Facsimile: (214) 691-5691
Telephone: (214) 691-8500
15
<PAGE>
WITH COPY TO:
------------
Liechty & McGinnis, P.C.
10440 North Central Expressway, Suite 1100
Dallas, Texas 75231
Attention: Kevin McGinnis
Facsimile: (214) 265-0615
Telephone: (214) 265-0008
TO SELLER:
---------
c/o JMB Realty Corporation
900 North Michigan Avenue
12th Floor
Chicago, Illinois 60611
Attention: Mr. Brian Ellison
Facsimile: (312) 915-2399
Telephone: (312) 915-2343
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
Telephone: (310) 201-8900
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 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
16
<PAGE>
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.
THE SUBMISSION OF THIS AGREEMENT FOR EXAMINATION IS NOT INTENDED TO
NOR SHALL CONSTITUTE AN OFFER TO SELL, OR A RESERVATION OF, OR OPTION OR
PROPOSAL OF ANY KIND FOR THE PURCHASE OF THE PROPERTY. IN NO EVENT SHALL
ANY DRAFT OF THIS AGREEMENT CREATE ANY OBLIGATION OR LIABILITY, IT BEING
UNDERSTOOD THAT THIS AGREEMENT SHALL BE EFFECTIVE AND BINDING ONLY WHEN A
COUNTERPART HEREOF HAS BEEN EXECUTED AND DELIVERED BY EACH PARTY HERETO TO
ESCROW HOLDER. ESCROW HOLDER SHALL DATE THIS AGREEMENT WITH THE DATE ON
WHICH ESCROW HOLDER SHALL HAVE RECEIVED THIS AGREEMENT EXECUTED BY
17
<PAGE>
BOTH BUYER AND SELLER (AND SUCH DATE SHALL BE THE "EFFECTIVE DATE" FOR
PURPOSES HEREOF).
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
as of the Effective Date.
SELLER:
SHERRY LANE ASSOCIATES,
a Texas general partnership
By: CARLYLE REAL ESTATE LIMITED
PARTNERSHIP-XIII,
an Illinois limited partnership,
General Partner
By: JMB REALTY CORPORATION,
a Delaware corporation,
General Partner
By: /S/ BRIAN K. ELLISON
------------------------------
Name: Brian K. Ellison
------------------------------
Title: Vice President
------------------------------
BUYER:
COTTONWOOD REALTY SERVICES, L.L.C.,
a Texas limited liability company,
By: /S/ ROBERT J. AXLEY
------------------------------
Name: Robert J. Axley
Title: Managing Director
18
<PAGE>
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.
Effective Date: July 7, 1997 COMMONWEALTH TITLE INSURANCE COMPANY
By: /S/ LISA PROCHNOW
------------------------------
Name: Lisa Prochnow
------------------------------
Title: Assistant Vice President
------------------------------
"Escrow Holder"
19
<PAGE>
EXHIBIT LIST
------------
"A" - Property Description
"B" - Personal Property
"C" - Form of Tenant Estoppel Certificate
"D" - Special Warranty Deed
"E" - Bill of Sale, Assignment and Assumption Agreement
"F" - Exceptions to Seller's Representations
and Warranties
"G" - Rent Roll
"H" - Service Agreements
"I" - Environmental Reports
<PAGE>
EXHIBIT "A"
PROPERTY DESCRIPTION
BEING a Tract of land situated in the Andrew J. Mannin Survey, Abstract No.
948 and being part of Lot 2A, Block 4/5625 of 5956 Sherry Lane, an addition
to the City of Dallas according to the plat thereof recorded in Volume
82167, Page 288, Map Records of Dallas County, Texas, and being more
particularly described as follows:
BEGINNING at an iron rod set for corner in the South Right-of-Way line of
Sherry Lane as dedicated by the plat of 5956 Sherry Lane Addition (a 56'
Right-of-Way at this point), said corner being S 00 degree 03' 27" West,
3.00 feet from the Northeast corner of said 5956 Sherry Lane Addition;
THENCE S 00 degree 03' 27" West, departing the Southerly line of said
Sherry Lane, a distance of 192.58 feet to an iron rod found for corner in
the Northerly line of a 20' alley;
THENCE S 89 degree 48' 00" West, with the North line of said 20' alley, a
distance of 474.79 feet to an iron rod set for corner;
THENCE N 00 degree 03' 27" E, departing the North line of said 20' alley, a
distance of 192.58 feet to an iron rod set for corner in the South line of
the aforementioned Sherry Lane (a 53' Right-of-Way at this point), as
dedicated by the plat of 5956 Sherry Lane;
THENCE N 89 degree 48' 00" East with the South line of said Sherry Lane, a
distance of 474.79 feet to the POINT OF BEGINNING and CONTAINING 2.099
acres of land, more or less.
<PAGE>
EXHIBIT "B"
PERSONAL PROPERTY
ACCOUNTANTS OFFICE SECURITY ROOM
Desk Wooden 2 drawer file cabinet
Credenza Credenza
Computer printer desk with drawer Office chair
Office chair Pentium computer
Swivel arm chair Typewriter
Metal 4 drawer file cabinet HP LaserJet IIP Printer
Computer stand
Compaq Pentium Computer
View Sonic Monitor/Color
HP LaserJet 4 Plus Printer ADMIN. ASST. AREA
Office chair
LEASING/MGR OFFICE Xerox 6020 Memorywriter
Pentium Computer
Desk Addonics Monitor/Color
Office chair HP LaserJet 4 Plus Printer
Executive chair
2 Side chairs
Credenza
Computer stand KITCHEN
Wooden 4 drawer file cabinet
Wooden 2 drawer file cabinet Hotpoint Refrigerator
Wooden bookshelf Panasonic Microwave
Dart 486 Computer Storage cabinet
Mag Monitor/Color
HP LaserJet 5 Printer
RECEPTION AREA
Desk Radio System
Office chair Phone System
Credenza
3 Arm chairs
2 End tables
Advanced Logic 486 Computer
Mag Monitor/Color
HP LaserJet II Printer
<PAGE>
FILE ROOM CONFERENCE ROOM
3 - Metal 4 drawer file cabinets Conference table
Plan Rack 6 Arm chairs
Credenza
CHIEF ENGINEER OFFICE CONCIERGE
Desk Desk
Metal 2 drawer file cabinet Credenza
2 office chairs Carpet
Table 2 Arm chairs
Computer stand 2 Leather swivel arm chairs
486 Computer Compaq 286 computer with monitor
Mag Monitor/Color\ LaserJet II Printer
HP LaserJet 4L Printer Folding table
MISC
Desk
Computer printer desk with drawer
Metal 2 drawer file cabinet
3 Cubicle station each with:
Table, Desk with Side drawers and
Computer tabletop, 1 closed shelving unit
and 1 open shelving unit
<PAGE>
EXHIBIT "C"
FORM OF TENANT ESTOPPEL CERTIFICATE
________ ___, 1997
SHERRY LANE ASSOCIATES
c/o JMB Realty Corporation
900 North Michigan Avenue
12th Floor
Chicago, Illinois 60611
Attention: Mr. Brian Ellison
COTTONWOOD REALTY SERVICES, L.L.C.
7557 Rambler Road
Suite 932
Dallas, Texas 75231
Attention: Mr. Robert J. Axley
Re: 5956 Sherry Lane
Dallas, Texas
----------------
Ladies and Gentlemen:
You have informed the undersigned that Sherry Land Associates
("Landlord"), the current landlord under the "Lease" (as hereinafter
defined), is engaged in negotiations with Cottonwood Realty Services,
L.L.C. ("ALTA"), respecting the possible purchase and sale of the office
building located at 5956 Sherry Lane, Dallas, Texas ("Property").
This letter is to confirm that the undersigned is currently the
tenant under that certain lease originally dated
______________________________, between _________________________________,
as landlord, and __________________, as tenant, as amended by that certain
_________________________ dated _______________, between
______________________, as landlord, and ________________________, as
tenant (collectively, the "Lease"). The Lease covers our premises located
at the Property (as more particularly described in the Lease), and is, on
the date of this letter, in full force and effect. The term of the Lease
has commenced and rent has commenced to accrue.
<PAGE>
SHERRY LANE ASSOCIATES
COTTONWOOD REALTY SERVICES, L.L.C.
__________ ____, 1997
Page 2
Further, except as expressly noted in this letter or on Schedule A
attached hereto, to the best knowledge of the undersigned, (1) there are no
other agreements or amendments and no subleases, assignments or
modifications of the Lease, (2) there are no defaults that now exist under
the terms of the Lease, whether on the part of landlord or tenant, (3) any
improvements required under the Lease to be constructed by the landlord
under the Lease have been completed to our satisfaction, (4) we have
accepted possession of and are currently occupying the premises under the
Lease, (5) we currently have no defenses, offsets or abatements under the
Lease, (6) we have paid no rent or other sums more than 30 days in advance
to you (other than security deposit described in Schedule A, and (7) our
current rental obligations are as described in Schedule A and we have made
all payments through the monthly payment set forth in Schedule A.
On behalf of ourselves and our successors and assigns, we hereby
authorize each of you to forward or otherwise deliver this letter, or a
copy hereof, to any third party with which you are dealing in connection
with any sale, joint venture, financing or other transaction involving the
Property, and each such party and its successors and assigns will be
entitled to rely on this letter in connection with such transaction.
[TENANT'S NAME]
By: ________________________________
Name: __________________________
Title: _________________________
2
<PAGE>
SCHEDULE A
----------
Security Deposit, if any: _____________________
Monthly Fixed Rental Obligations: _____________________
Monthly Estimated Tax and/or
Operating Expense Payment: _____________________
Monthly Payments made through: _____________________
Additional Matters, if any:
___________________________________________________
_____________________________________________
<PAGE>
EXHIBIT "D"
SPECIAL WARRANTY DEED
STATE OF TEXAS ]
] KNOW ALL MEN BY THESE PRESENTS
COUNTY OF DALLAS ] THAT:
SHERRY LANE ASSOCIATES, a Texas general partnership ("Grantor"), for
and in consideration of the sum of TEN AND NO/100 DOLLARS ($10.00), and
other good and valuable consideration paid by COTTONWOOD REALTY SERVICES,
L.L.C., a Texas limited liability company ("Grantee"), the receipt and
sufficiency of which are hereby acknowledged and confessed, subject to the
exceptions, liens, encumbrances, terms and provisions hereinafter set forth
and described, has GRANTED, BARGAINED, SOLD and CONVEYED, and by these
presents does hereby GRANT, BARGAIN, SELL and CONVEY, unto Grantee all of
that certain lot, tract or parcel of land situated in the City of Dallas,
Dallas County, Texas, and being more particularly described in Exhibit "A"
attached hereto and incorporated herein by reference, together with all
improvements located on such land (such land and improvements being
collectively referred to as the "Property").
The Property is conveyed to Grantee subject to: (a) all taxes
and assessments, both general and special, not now due and payable; (b)
building and zoning ordinances, laws, regulations and restrictions by
municipal or other governmental authority; (c) any and all leases,
easements, rights-of-way, encumbrances, conditions, covenants,
restrictions, reservations and exceptions of record; (d) all matters,
including, but not limited to, road, highway, pipeline, railroad and
utility easements which would be disclosed by a survey and inspection of
the Property; (e) all rights of tenants in possession; and (f) all other
matters of record.
TO HAVE AND TO HOLD the Property, together with all rights and
appurtenances pertaining thereto, including all of Grantor's right, title
and interest in and to adjoining streets, alleys and rights-of-way, unto
Grantee and Grantee's successors, heirs and assigns forever; and Grantor
does hereby bind itself and its successors and heirs to warrant and forever
defend the Property unto Grantee and Grantee's successors, heirs and
assigns, against every person whomsoever lawfully claiming or to claim the
same or any part thereof by, through or under Grantor, but not otherwise.
1
<PAGE>
The Property is conveyed "As Is, Where Is, With All Faults" and,
except as specifically set forth in this Deed, Grantor hereby expressly
disclaims and excludes all covenants and warranties of title of every
nature and kind whatsoever (express, implied, statutory or otherwise).
EXECUTED as of the ___ day of _____________, 1997
GRANTOR:
SHERRY LANE ASSOCIATES,
a Texas general partnership
By: CARLYLE REAL ESTATE LIMITED
PARTNERSHIP-XIII,
an Illinois limited partnership,
General Partner
By: JMB REALTY CORPORATION,
a Delaware corporation
General Partner
By: _____________________
Name: ___________________
Title: __________________
2
<PAGE>
EXHIBIT "A"
LEGAL DESCRIPTION
BEING a Tract of land situated in the Andrew J. Mannin Survey, Abstract No.
948 and being part of Lot 2A, Block 4/5625 of 5956 Sherry Lane, an addition
to the City of Dallas according to the plat thereof recorded in Volume
82167, Page 288, Map Records of Dallas County, Texas, and being more
particularly described as follows:
BEGINNING at an iron rod set for corner in the South Right-of-Way line of
Sherry Lane as dedicated by the plat of 5956 Sherry Lane Addition (a 56'
Right-of-Way at this point), said corner being S 00 degree 03' 27" West,
3.00 feet from the Northeast corner of said 5956 Sherry Lane Addition;
THENCE S 00degree 03' 27" West, departing the Southerly line of said Sherry
Lane, a distance of 192.58 feet to an iron rod found for corner in the
Northerly line of a 20' alley;
THENCE S 89 degree 48' 00" West, with the North line of said 20' alley, a
distance of 474.79 feet to an iron rod set for corner;
THENCE N 00 degree 03' 27" E, departing the North line of said 20' alley, a
distance of 192.58 feet to an iron rod set for corner in the South line of
the aforementioned Sherry Lane (a 53' Right-of-Way at this point), as
dedicated by the plat of 5956 Sherry Lane;
THENCE N 89 degree 48' 00" East with the South line of said Sherry Lane, a
distance of 474.79 feet to the POINT OF BEGINNING and CONTAINING 2.099
acres of land, more or less.
<PAGE>
EXHIBIT "E"
BILL OF SALE, ASSIGNMENT AND ASSUMPTION AGREEMENT
(5956 Sherry Lane; Dallas, Texas)
FOR VALUABLE CONSIDERATION, receipt of which is hereby acknowledged,
the undersigned, SHERRY LANE ASSOCIATES, a Texas general partnership
("Seller"), hereby sells, transfers, assigns and conveys to COTTONWOOD
REALTY SERVICES, L.L.C., a Texas limited liability company ("Buyer"), the
following:
1. PERSONAL PROPERTY. All right, title and interest of Seller in
and to those items of tangible personal property described in Exhibit "A"
attached hereto and made a part hereof ("Personal Property"), located upon,
and used in the operation of, that certain office building, located at 5956
Sherry Lane in the City of Dallas, County of Dallas, State of California
(collectively, the "Property").
2. LEASES. All right, title and interest of Seller in and to all
leases ("Leases") relating to the Property and described in Exhibit "B"
attached hereto.
3. SERVICE AGREEMENTS. All right, title and interest of Seller in
and to all service agreements ("Service Agreements") relating to the
Property, or any part of the same and described in Exhibit "C" attached
hereto.
4. INTANGIBLE PROPERTY. All right, title and interest of Seller,
to the extent assignable, in and to all contract rights, agreements, tenant
lists, governmental permits, licenses and approvals, advertising material
and telephone exchange numbers (collectively, the "Intangible Property")
directly relating to the Property.
This Bill of Sale, Assignment and Assumption is given pursuant to
that certain agreement ("Agreement") captioned "PURCHASE AGREEMENT", dated
as of _______ ___, 1997, between the Seller and Buyer, providing for, among
other things, the assignment of the Personal Property, Tenant Leases,
Service Agreements and Intangible Property. The covenants, agreements, and
limitations (including, but not limited to, the limitations of liability
provided in paragraph 10B of the Agreement) provided in the Agreement with
respect to the property conveyed hereunder are hereby incorporated herein
by this reference as if herein set out in full and shall inure to the
benefit of and shall be binding upon Seller and
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<PAGE>
Buyer, and their respective successors and assigns. Said property is
conveyed "as is" without warranty or representation, except as expressly
provided in (and subject to the limitations of) the Agreement.
DATED: As of _____________ ___, 1997.
SELLER:
SHERRY LANE ASSOCIATES,
a Texas general partnership
By: CARLYLE REAL ESTATE LIMITED
PARTNERSHIP-XIII,
an Illinois limited partnership,
General Partner
By: JMB REALTY CORPORATION,
a Delaware corporation
General Partner
By: _____________________
Name: ___________________
Title: __________________
3
<PAGE>
ASSUMPTION BY BUYER
- - - -------------------
As of this ____ day of _____________, 1997, Buyer hereby
accepts the foregoing assignment of Leases, Service Agreements and other
contracts, agreements assigned hereby and agrees to assume and discharge,
in accordance with the terms thereof, all of the burdens and obligations of
Seller thereunder, to the extent the same arise from and after the date
hereof.
BUYER:
COTTONWOOD REALTY SERVICES, L.L.C.,
a Texas limited liability company
By: _______________________
Name: ______________________
Title: _____________________
3
<PAGE>
EXHIBIT "A"
LIST OF PERSONAL PROPERTY
<PAGE>
EXHIBIT "B"
LIST OF LEASES
<PAGE>
EXHIBIT "C"
LIST OF SERVICE AGREEMENTS
<PAGE>
EXHIBIT "F"
EXCEPTIONS TO SELLER'S REPRESENTATIONS AND WARRANTIES
<PAGE>
EXHIBIT "G"
RENT ROLL
<PAGE>
EXHIBIT "H"
SERVICE AGREEMENTS
<PAGE>
EXHIBIT "I"
ENVIRONMENTAL REPORTS
EXHIBIT 10.2
- - - ------------
FIRST AMENDMENT TO PURCHASE AGREEMENT
This First Amendment to Purchase Agreements is entered into
effective as of August 6, 1997 (the "Amendment"), by and between Sherry
Lane Associates ("Seller"), and Cottonwood Realty Services, L.L.C.
("Buyer").
WHEREAS, Seller and Buyer entered into that certain Purchase
Agreement dated effective as of July 7, 1997 (as amended, the "Contract"),
pursuant to which Seller has agreed to sell, and Buyer has agreed to
purchase from Seller, Seller's rights, titles and interests in and to the
property more particularly described in the Contract (collectively, the
"Property"); and
WHEREAS, Seller and Buyer mutually desire to modify the Contract to
reflect an extension in the Due Diligence Period (as defined in the
Contract).
NOW, THEREFORE, for and in consideration of the recitals contained
above, the agreements set forth below, and other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, Seller and Buyer do hereby agree as follows:
1. Unless otherwise defined in this Amendment or the context
otherwise requires, each term used in this Amendment with its initial
letter capitalized, which has been defined in the Contract, shall have the
same meaning as given to such term in the Contract.
2. Section 4B of the Contract is hereby amended such that the
first sentence of that Section shall be deleted and shall be replaced with
the following initial sentence:
"B. DUE DILIGENCE REVIEWS. Buyer shall have until
5:00 p.m. (Central time) on August 8, 1997 (the "Due Diligence Period"),
within which to perform and complete all of Buyer's due diligence
examinations, review and inspections of all matters pertaining to the
purchase of the Property, including all leases, service contracts, survey
and title matters, and all physical, environmental and compliance matters
and conditions respecting the Property."
3. Except as expressly modified in this Amendment, no term or
provision of the Contract is or shall be amended, modified or supplemented,
and the Contract, as hereby amended, is hereby acknowledged and affirmed.
4. This Amendment may be executed in any number of identical
counterparts. If so executed, then each of such counterparts is deemed to
be an original and all such counterparts shall, collectively, constitute
one agreement, but in making proof of this Amendment, it shall not be
necessary to produce or account for more than one such fully executed
counterpart.
- 1 -
<PAGE>
IN WITNESS WHEREOF, Buyer and Seller have executed this Amendment
to be effective as of the date first set first above.
SELLER:
------
SHERRY LANE ASSOCIATES,
a Texas general partnership
By: CARLYLE REAL ESTATE LIMITED PARTNERSHIP-XIII,
an Illinois limited partnership,
its general partner
By: JMB REALTY CORPORATION,
a Delaware corporation,
its general partner
By: /s/ BRIAN K. ELLISON
------------------------------
Name: Brian K. Ellison
------------------------------
Title: Vice President
------------------------------
BUYER:
-----
COTTONWOOD REALTY SERVICES, L.L.C.,
a Texas limited liability company,
By: /s/ ROBERT J. AXLEY
------------------------------
Robert J. Axley
Managing Director
- 2 -
EXHIBIT 10.3
- - - ------------
August 8, 1997
Sherry Lane Associates
JMB Realty Corporation
900 North Michigan Avenue
Chicago, Ill 60611
Attention: Mr. Brian Ellison
Re: Sherry Lane Office Building
Dallas, Texas
Ladies and Gentlemen:
Reference is made to that certain Purchase Agreement dated effective
as of July 7, 1997 between Sherry Lane Associates ("Seller") and Cottonwood
Realty Services, L.L.C. ("Buyer"), as amended by that certain First
Amendment dated effective as of August 6, 1997, between Seller and Buyer
(collectively, the "Purchase Agreement"), respecting the purchase and sale
of the above premises. Except as otherwise specifically set forth in this
letter agreement, each term which is used in a defined manner herein (and
the initial letter of which is capitalized) shall have the meaning set
forth for such term in the Purchase Agreement.
Buyer has completed its due diligence reviews but has requested an
extension of the Due Diligence Period for the sole purpose of obtaining
financing commitments for its acquisition of the Property, and Seller is
agreeable to an extension for such purpose, on the terms hereinafter set
forth.
In that connection, in consideration of the premises, the mutual
undertakings of the parties and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, Seller and
Buyer hereby agree as follows:
1. APPROVAL OF DUE DILIGENCE REVIEWS. Buyer has completed,
and approved the results of, its due diligence examinations, reviews and
inspections of all matters pertaining to the purchase of the Property,
including all leases, service contracts, survey and title matters, and all
physical, environmental and compliance matters and conditions respecting
the Property.
2. FINANCING MATTERS. Notwithstanding the foregoing, Buyer
has not yet obtained a financing commitment satisfactory to Buyer. In that
connection, the Due Diligence Period is hereby extended until 5:00 p.m.
(Central Time) on Tuesday, August 12, 1997 SOLELY for the purpose of giving
Buyer additional time to obtain such financing commitment. Buyer shall
diligently and in good faith continue to pursue such financing commitment
during such extension period.
Except as expressly modified in this letter agreement the
Purchase Agreement is unmodified and remains in full force and effect.
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<PAGE>
This letter agreement may be executed in any number of
identical counterparts. If so executed, then each of such counterparts is
deemed to be an original and all such counterparts shall, collectively,
constitute one agreement. The parties hereto agree that facsimile copies
of signatures shall be acceptable and shall be deemed original signatures
(provided, however, each party will send the other an executed counterpart
original if requested).
Please indicate your consent to the foregoing by signing where
noted below.
COTTONWOOD REALTY SERVICES, L.L.C.,
a Texas limited liability company,
By:
------------------------------
Name:
------------------------------
Title:
------------------------------
AGREED TO AS OF THIS
8th DAY OF AUGUST, 1997
SHERRY LAND ASSOCIATES,
a Texas general partnership
By: CARLYLE REAL ESTATE LIMITED PARTNERSHIP-XIII,
an Illinois limited partnership,
its general partner
By: JMB REALTY CORPORATION,
a Delaware corporation,
its general partner
By:
------------------------------
Name:
------------------------------
Title:
------------------------------
2
EXHIBIT 10.4
- - - ------------
August 12, 1997
Sherry Lane Associates
JMB Realty Corporation
900 North Michigan Avenue
Chicago, Ill 60611
Attention: Mr. Brian Ellison
Re: Sherry Lane Office Building
Dallas, Texas
Ladies and Gentlemen:
Reference is made to that certain Purchase Agreement dated effective
as of July 7, 1997 between Sherry Lane Associates ("Seller") and Cottonwood
Realty Services, L.L.C. ("Buyer"), as amended by that certain First
Amendment dated effective as of August 6, 1997, between Seller and Buyer
and as amended by that certain letter agreement dated August 8, 1997
between Seller and Buyer (Collectively, the "Purchase Agreement"),
respecting the purchase and sale of the above premises. Except as
otherwise specifically set forth in this letter agreement, each term which
if used in a defined manner herein (and the initial letter of which is
capitalized) shall have the meaning set forth for such term in the Purchase
Agreement.
Buyer completed its due diligence reviews but has requested an
extension of the Due Diligence Period for the sole purpose of obtaining
financing commitments for its acquisition of the Property, and Seller is
agreeable to an extension for such purpose, on the terms hereinafter set
forth.
In that connection, in consideration of the premises, the mutual
undertakings of the parties and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, Seller and
Buyer hereby agree as follows:
1. FINANCING MATTERS. Buyer has not yet obtained a
financing commitment satisfactory to Buyer. In that connection, the Due
Diligence Period is hereby extended until 5:00 p.m. (Central Time) on
Wednesday, August 13, 1997 SOLELY for the purpose of giving Buyer
additional time to obtain such financing commitment. Buyer shall
diligently and in good faith continue to pursue such financing commitment
during such extension period.
Except as expressly modified in this letter agreement the Purchase
Agreement is unmodified and remains in full force and effect.
<PAGE>
This letter agreement may be executed in any number of identical
counterparts. If so executed, then each of such counterparts is deemed to
be an original and all such counterparts shall, collectively, constitute
one agreement. The parties hereto agree that facsimile copies of
signatures shall be acceptable and shall be deemed original signatures
(provided, however, each party will send the other an executed counterpart
original if requested).
Please indicate your consent to the foregoing by signing where noted
below.
COTTONWOOD REALTY SERVICES, L.L.C.,
a Texas limited liability company,
By: /s/ ROBERT J. AXLEY
------------------------------
Name:Robert J. Axley
------------------------------
Title: Managing Director
------------------------------
AGREED TO AS OF THIS
12th DAY OF AUGUST, 1997
SHERRY LANE ASSOCIATES,
a Texas general partnership
By: CARLYLE REAL ESTATE LIMITED PARTNERSHIP - XIII
an Illinois limited partnership,
its general partner
By: JMB REALTY CORPORATION,
a Delaware corporation,
its general partner
By: /s/ BRIAN K. ELLISON
------------------------------
Name: Brian K. Ellison
------------------------------
Title: Vice President
------------------------------
<PAGE>
PIRCHER, NICHOLS & MEEKS
Attorneys at Law
August 12, 1997
VIA TELECOPY [214-691-8500]
Mr. Robert J. Axley
Cottonwood Realty Services, L.L.C.
7557 Rambler Road, Suite 932
Dallas, Texas 75231
Re: Sherry Lane
Dear Mr. Axley:
Attached is a letter agreement extending the Due Diligence Period
until Wednesday, August 13, 1997 in order for you to obtain a financing
commitment. We will prepare an amendment to the Purchase Agreement
tomorrow which will (i) extend the Due Diligence Period until Friday,
August 15, 1997, (ii) make any additional extensions of the Due Diligence
Period available only upon payment to Seller by Buyer of the sum of $25,000
per day and in the Seller's sole discretion, (iii) extend the closing date
and (iv) address the closing conditions (i.e. the completion of the
requirements set forth in the title commitment). Please return the
attached letter agreement today by telecopy to Brian Ellison for signature.
Very truly yours,
/s/ SUSAN HORN
Susan A. Horn
Enclosure
cc: Susan C. Baldwin, Esq. (via telecopy 214-265-0615)
Mr. Brian Ellison (via telecopy 312-915-2399)
Gary Laughlin, Esq. (w/encl.)
EXHIBIT 10.5
- - - ------------
SECOND AMENDMENT TO PURCHASE AGREEMENT
--------------------------------------
THIS SECOND AMENDMENT TO PURCHASE AGREEMENT ("Amendment") is
made as of this 13th day of August, 1997, by and between SHERRY LANE
ASSOCIATES, a Texas general partnership ("Seller"), and COTTONWOOD REALTY
SERVICES, L.L.C., a Texas limited liability company ("Buyer").
R E C I T A L S
---------------
A. Buyer and Seller are parties to that certain Purchase Agreement
dated effective July 7, 1997, as amended by (i) that certain First
Amendment to Purchase Agreement dated effective as of August 6, 1997, (ii)
that certain letter agreement dated August 8, 1997, and (iii) that certain
letter agreement dated August 12, 1997 (collectively, the "Purchase
Agreement") with respect to that certain real property located at 5956
Sherry Lane located in Dallas, Texas and more specifically described in the
Purchase Agreement.
B. Buyer and Seller wish to modify the Purchase Agreement in the
manner set forth below.
NOW, THEREFORE, in consideration of the mutual covenants, promises
and undertakings set forth herein, Buyer and Seller hereby agree as
follows:
1. DUE DILIGENCE PERIOD. The "Due Diligence Period" as defined in
Paragraph 4(B) of the Purchase Agreement is hereby extended to Friday,
August 15, 1997. In the event that Seller agrees, in its sole and absolute
discretion, to any additional extensions of the Due Diligence Period, Buyer
shall pay to Seller an extension fee (the "Extension Fee") equal to the sum
of $25,000 for each calendar day that Seller agrees that the Due Diligence
Period shall be extended past August 15, 1997. The entire Extension Fee
shall be paid by Buyer directly to Seller (and not through escrow) upon
Seller's written agreement to the additional extension of the Due Diligence
Period by wire transfer of immediately available funds in accordance with
Seller's written wire instructions. Receipt of such payment prior to the
expiration of the then current Due Diligence Period shall, at Seller's
option, be a condition to such additional extension. The Extension Fee
shall be in addition to, and not in lieu of, the Initial Escrow Deposit,
the Additional Escrow Deposit and the Purchase Price (each as defined in
the Purchase Agreement) to be paid pursuant to the Purchase Agreement and
shall not be applied to the Purchase Price or be refunded to Buyer under
any circumstances whatsoever.
<PAGE>
2. CLOSING DATE. The "Closing Date" as defined in Paragraph 5 of
the Purchase Agreement is hereby extended to Wednesday, September 10, 1997.
3. SATISFACTION OF TITLE REQUIREMENTS. Notwithstanding anything
to the contrary contained in the Purchase Agreement, it shall be a
condition precedent to Buyer's obligation to purchase the Property that, on
or before the Closing Date, the title requirements numbered 1, 2, 5, 6, 7,
8 and 9 in Schedule C of the Preliminary Title Report (as defined in the
Purchase Agreement) shall have been satisfied, a copy of which Schedule C
is attached hereto and made a part hereof.
4. FULL FORCE AND EFFECT. Except as modified herein, Buyer and
Seller acknowledge and agree that the Purchase Agreement remains in full
force and effect.
5. COUNTERPARTS. This Amendment may be signed by the parties in
different counterparts and the signature pages combined to create a
document binding on all parties. The parties hereto agree that facsimile
copies of signatures shall be acceptable and shall be deemed original
signatures (provided, however, each party will send the other an executed
counterpart original, if requested).
6. DEFINED TERMS. Except as otherwise specifically set forth in
this Amendment, each term which is used in a defined manner herein (and the
initial letter of which is capitalized) shall have the meaning set forth
for such term in the Purchase Agreement.
<PAGE>
IN WITNESS WHEREOF, the parties have executed this Amendment as of
the date first above written.
SELLER:
COTTONWOOD REALTY SERVICES, L.L.C.,
a Texas limited liability company,
By:
------------------------------
Name:
------------------------------
Title:
------------------------------
BUYER:
SHERRY LANE ASSOCIATES,
a Texas general partnership
By: CARLYLE REAL ESTATE LIMITED PARTNERSHIP-XIII,
an Illinois limited partnership,
its general partner
By: JMB REALTY CORPORATION,
a Delaware corporation,
its general partner
By:
------------------------------
Name:
------------------------------
Title:
------------------------------
EXHIBIT 10.6
- - - ------------
September 10, 1997
Sherry Lane Associates
JMB Realty Corporation
900 North Michigan Avenue
Chicago, Ill 60611
Attention: Mr. Brian Ellison
Re: Sherry Lane Office Building
Dallas, Texas
Ladies and Gentlemen:
Reference is made to that certain Purchase Agreement dated effective
as of July 7, 1997 between Sherry Lane Associates ("Seller") and Cottonwood
Realty Services, L.L.C. ("Buyer") (which agreement, together with all
amendments thereto previously entered into, are collectively called the
"Purchase Agreement"), respecting the purchase and sale of the above
premises. Except as otherwise specifically set forth in this letter
agreement, each term which is used in a defined manner herein (and the
initial letter of which is capitalized) shall have the meaning set forth
for such term in the Purchase Agreement.
In that connection, in consideration of the premises, the mutual
undertakings of the parties and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, Seller and
Buyer hereby agree that the Closing Date is hereby extended to September
11, 1997.
Except as expressly modified in this letter agreement the
Purchase Agreement is unmodified and remains in full force and effect.
This letter agreement may be executed in any number of
identical counterparts. If so executed, then each of such counterparts is
deemed to be an original and all such counterparts shall, collectively,
constitute one agreement. The parties hereto agree that facsimile copies
of signatures shall be acceptable and shall be deemed original signatures
(provided, however, each party will send the other an executed counterpart
original if requested).
<PAGE>
Please indicate your consent to the foregoing by signing where
noted below.
COTTONWOOD REALTY SERVICES, L.L.C.,
a Texas limited liability company,
By:
------------------------------
Name:
------------------------------
Title:
------------------------------
AGREED TO AS OF THIS
10th DAY OF SEPTEMBER, 1997
SHERRY LANE ASSOCIATES,
a Texas general partnership
By: CARLYLE REAL ESTATE LIMITED PARTNERSHIP-XIII,
an Illinois limited partnership,
its general partner
By: JMB REALTY CORPORATION,
a Delaware corporation,
its general partner
By:
------------------------------
Name:
------------------------------
Title:
------------------------------
