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 31, 1998
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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<PAGE>
LONG BEACH PLAZA
LONG BEACH, CALIFORNIA
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ITEM 2. ACQUISITION OR DISPOSITION OF ASSETS. On December 31, 1998,
Carlyle Real Estate Limited Partnership - XIII (the "Partnership") disposed
of the land, building and related improvements of the Long Beach Plaza (the
"Property"), located in Long Beach, California. RVM Long Beach Plaza, LLC.
(the "Purchaser"), a Delaware limited liability company, 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 approximate
679,000 square foot shopping center of which the Partnership owned
approximately 559,000 square feet, and, as of the date of sale was
approximately 60% occupied.
The Partnership had not made the required debt service on the mortgage
note secured by the Property since June 1993. Additionally, such mortgage
note, in the original principal amount of approximately $34,000,000 plus
accrued and deferred interest, matured in June 1994. The Partnership
initiated discussions with the first mortgage lender, Teachers Insurance
and Annuity Association of America (the "Lender") regarding the
modification of its mortgage loan and in December 1994, the Lender agreed
to a short-term loan extension through August 1995. The Partnership had
been unable to secure a modification or further extension of the loan and
the Partnership decided not to commit any significant additional amounts to
the Property. In March 1996, a receiver was appointed for the benefit of
the Lender. During 1998, the Partnership negotiated with the Lender and
the Purchaser to sell the Property to the Purchaser contemporaneously with
the Lender's sale of the mortgage note to an affiliate of the Purchaser.
The Partnership transferred title to the land, building and
improvements, and all other assets and liabilities related to the Property
in consideration of a discharge of the mortgage loan and payment of $10 in
cash on December 31, 1998. The Property was classified as held for sale as
of July 1, 1996 and therefore has not been subject to continued
depreciation from such date for financial reporting purposes. The
Partnership expects to realize a total gain from this transaction in 1998
of approximately $47,000,000 for financial reporting purposes. This amount
represents a gain on sale including the effect of impairment losses
recognized by the Partnership in 1996 aggregating approximately $17,600,000
with the remainder representing an extraordinary gain on forgiveness of
debt, which will be included in the consolidated financial statements of
the Partnership. In addition, the Partnership expects to recognize a gain
of approximately $28,000,000 for Federal income tax purposes, with no
corresponding distributable proceeds. The Partnership has no future
liability for any representations, warranties and covenants as a result of
the sale.
<PAGE>
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 by the Partnership,
beyond the date of sale there will be no further rental income, interest
income, mortgage and other interest, property operating expenses and
amortization of deferred expenses recorded for the Property in the
consolidated financial statements of the Partnership. For the year ended
December 31, 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 $5,429,000, $44,000, $4,552,000, $5,187,000 and $141,000,
respectively. Rental income, interest income, mortgage and other interest,
property operating expenses and amortization of deferred expenses were
approximately $3,080,000, $12,000, $3,428,000, $3,430,000 and $22,000,
respectively, for the nine months ended September 30, 1998 in the
Partnership's consolidated financial statements. Also as a result of the
sale of the Property, there are no further assets and liabilities related
to the Property in the Partnership's consolidated financial statements,
which at September 30, 1998 consisted of restricted funds of approximately
$117,000; rents and other receivables of approximately $152,000; prepaid
expenses of approximately $33,000; investment property held for sale or
disposition of approximately $9,277,000; deferred expenses of approximately
$109,000; current liabilities (including mortgage debt) of approximately
$55,678,000 and tenant security deposits of $165,000.
(c) Exhibits
10.1 Conveyance and Settlement Agreement between RVM Long
Beach Plaza LLC, a Delaware limited liability company, and Carlyle Real
Estate Partnership-XIII, an Illinois limited partnership, dated December
15, 1998.
<PAGE>
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
GAILEN J. HULL
By: Gailen J. Hull
Senior Vice President
Dated: January 12, 1999
EXHIBIT 10.1
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CONVEYANCE AND SETTLEMENT AGREEMENT
THIS CONVEYANCE AND SETTLEMENT AGREEMENT, dated as of
December 15, 1998, is made by and among RVM LONG BEACH PLAZA LLC, a
Delaware limited liability company ("Grantee"), and CARLYLE REAL ESTATE
LIMITED PARTNERSHIP-XIII, an Illinois limited partnership ("Grantor").
Capitalized terms used in this Agreement and not otherwise defined are used
with the meanings set forth in Exhibit C.
PRELIMINARY STATEMENTS. This Agreement is entered into with
reference to the following facts:
(1) Grantor is indebted to Teachers Insurance and Annuity
Association of America ("TIAA") pursuant to that certain California Deed of
Trust Note (the "Note"), in the original principal amount of $34,000,000,
dated June 28, 1984, and secured by that certain Deed of Trust and
Assignment of Rents, Security Agreement and Fixture Filing Statement (the
"Deed of Trust"), dated June 28, 1984, that certain Assignment of Leases
and Rents (the "Assignment of Leases"), dated June 28, 1984 and certain
other instruments, security agreements and UCC financing statements (the
"Other Security Instruments"; the Other Security Instruments, the Deed of
Trust and the Assignment of Leases, collectively, the "Mortgage"). The
outstanding unpaid principal amount under the Note is at least
$30,000,000.00.
(2) The Note is currently in default, and in connection therewith,
TIAA has filed an action for, among other things, judicial foreclosure in
the Los Angeles County Superior Court (the "Superior Court"), as Case No.
NC 018613 (the "Superior Court Proceeding"). Pursuant to a stipulation
between Grantor, JMB Realty Corporation, a Delaware corporation, and TIAA,
approved by the Superior Court on or about March 6, 1996, in the Superior
Court Proceeding, Douglas P. Wilson (the "Receiver") was appointed as
receiver for the Property.
(3) Grantor acknowledges, for purposes of this Settlement Agreement
only, and only for the benefit of Grantee, that (a) a material default has
occurred under the Loan Documents, (b) all notice and cure periods under
the Loan Documents have expired, (c) Grantor has no offsets, defenses or
counterclaims with respect to amounts outstanding under the Loan Documents
or to the Superior Court Proceeding, (d) Grantor is unable to cure its
defaults under the Loan Documents, (e) Grantor does not have any equity in
the Property and (f) Grantor has been unsuccessful in obtaining any offers
to purchase the Property or any commitments to refinance the Loan either of
which would result in the repayment of all amounts owed under the Loan.
(4) Grantee has advised Grantor that TIAA is negotiating a Loan
Purchase and Sale Agreement (the "TIAA/Grantee Agreement") with RVM II Long
Beach Plaza LLC ("RVM"), an affiliate of Grantee, providing for the sale of
the Note and Mortgage, and TIAA and Grantor have agreed that, if Grantee
desires, upon the sale of the Note and Mortgage to RVM, Grantor shall
transfer the Property to Grantee or its designee in lieu of foreclosure of
the Deed of Trust by RVM.
(5) Subject to the terms and conditions set forth in this
Agreement, Grantor desires to convey and transfer to Grantee, and Grantee
desires to receive and accept, Grantor's rights and interests in the
Property.
NOW, THEREFORE, in consideration of the premises, $10 and of
the mutual covenants and agreements hereinafter set forth, all of which
represent a fair and equitable transfer (specifically, with respect to the
benefits transferred to Grantor, Grantor acknowledges that they represent a
reasonably equivalent value for Property, as encumbered) and subject to the
terms and conditions hereof, the parties hereto hereby agree as follows:
<PAGE>
ARTICLE I
TRANSFER AND CONVEYANCE OF PROPERTY
1.01 CONVEYANCE OF REAL PROPERTY. On the Closing Date, Grantor
shall execute and deliver to Grantee a quitclaim deed (the "Deed"), in the
form attached hereto as Exhibit D and acknowledged by a notary, conveying
Grantor's interest in the Real Property to Grantee.
1.02 TRANSFER OF PERSONAL PROPERTY AND PROJECT DOCUMENTS. On the
Closing Date, Grantor will deliver to Grantee a bill of sale (the "Bill of
Sale"), in the form attached hereto as Exhibit E, transferring to Grantee
as of the Closing Date, without any warranties whatsoever, all of Grantor's
interest in and rights under or in connection with the Personal Property,
the Project Documents, the Leases and the Rents, to the extent
transferable, together with such other instruments of transfer,
assignments, consents to transfer and assignment and approvals as Grantee
may reasonably request in order to evidence and effect the sale,
assignment, transfer and delivery thereof to Grantee as of the Closing
Date.
1.03 ASSIGNMENT OF DEVELOPMENT DOCUMENTS. On the Closing Date,
Grantor and Grantee shall execute (a) an Assignment and Assumption (the
"Assignment and Assumption of REA") of Grantor's rights and obligations
under the REA and (b) an Assignment and Assumption of that certain Parking
Sublease between the City of Long Beach, California (the "City") and
Grantor (the "Assignment and Assumption of the Parking Sublease"), which
shall be consented to by the City.
1.04 ACCEPTANCE BY GRANTEE. Effective as of the Closing Date, (a)
Grantee accepts the transfer and conveyance of the Property pursuant to the
Deed and the Bill of Sale and accepts the duties and obligations set forth
in the Assignment and Assumption of REA, the Assignment and Assumption of
the Parking Sublease and the release in Section 2.02 hereof, and (b)
Grantee assumes and agrees to perform Grantor's obligations under the
Project Documents and the Leases which arise from and after the Closing
Date and (c) Grantee and RVM agree that by reason thereof Grantor shall
have no further obligations with respect to the Note and the Mortgage.
1.05 POSSESSION BY GRANTEE. Effective as of the Closing Date,
Grantor shall be deemed to have delivered to Grantee, and Grantee shall
from and after such time have, exclusive possession and control of the
Property.
1.06 GRANTOR COVENANTS. Following the date hereof, Grantor shall,
unless Grantee otherwise consents in writing: (a) terminate all leasing
and sales efforts with respect to the Property, (b) not enter into any
agreement with respect to the Property, including any agreement with
respect to advertising, leasing or sales, or execute any instrument with
respect to the Property (other than as contemplated by this Agreement), or
record, modify or terminate any existing instrument or agreement with
respect to the Property, (c) not transfer, encumber or otherwise dispose of
any interest in the Property, and (d) not take any other action with
respect to the Property except that Grantor shall (to the extent Grantor is
currently permitted to and is currently affecting or performing such
actions given the Receiver's duties with respect to the Property), at all
<PAGE>
times prior to the Closing Date, not commit any waste thereof, maintain and
operate the Real Property in the ordinary course of business and keep and
maintain casualty insurance covering the Property in an amount sufficient
to cover the full replacement value of all improvements on the Real
Property.
1.07 ABSOLUTE CONVEYANCE. This Agreement, the Deed, the Bill of
Sale and any other Documents delivered by Grantor under this Agreement
(collectively, the "Agreement Documents"), when executed and delivered, are
and shall constitute an absolute conveyance to Grantee of title to the
Property, in effect as well as in form, and are not intended to create
security for the payment or repayment of any indebtedness or the
performance of any other obligation of Grantor of any kind or nature
whatsoever. There is no other agreement or understanding, oral or written,
between Grantor and Grantee with respect to the Property or any
reconveyance of the Property to or for the benefit of Grantor. The parties
hereby confirm that on and after the Closing Date, (a) Grantor shall have
no legal or equitable right, title, claim or interest in or to the
Property, and (b) Grantor shall waive any right to take any action with
respect to, or impose or seek to impose any Lien, trust or other interest
or right in or to the Property. If and to the extent that Grantor may
otherwise have any interest in any Property, such interest shall be deemed
to have been transferred and conveyed by Grantor to Grantee on the Closing
Date pursuant to the Agreement Documents.
ARTICLE II
GENERAL RELEASES
2.01 GENERAL RELEASE BY GRANTOR. Effective on the Closing Date,
Grantor hereby releases and discharges TIAA, Grantee, and their respective
subsidiaries and affiliates, and the respective officers, directors,
agents, attorneys and employees of each (collectively, the "Grantee
Parties") from any and all of its or their obligations under the Loan
Documents, and from any and all claims, debts, demands, allegations,
actions, causes of action, suits, duties, controversies, agreements,
promises, omissions, variances, damages, judgments, costs, expenses,
losses, obligations and liabilities whatsoever, whether in law, equity or
otherwise and whether or not presently known (including any unknown or
unsuspected claims within the meaning of 1542 of the California Civil Code)
(collectively, "Grantor Claims") that Grantor may now have, or hereafter
can, shall or may have against any Grantee Party based upon, arising out of
or related to (a) the Property, the Loan Documents and this Agreement
(including the negotiation, execution, delivery, performance,
administration or enforcement thereof), or any of the transactions
contemplated therein, or (b) any act or omission of any Grantee Party or
other Person in connection therewith or relating thereto; provided,
however, that such release shall not apply with respect to (i) any Grantor
Claims arising out of or resulting from the breach of any covenant or
warranty or any misrepresentation of Grantee under or contained in this
Agreement or any other Agreement Document or (ii) any Grantor Claims or
matters with respect to which Grantee has agreed to indemnify Grantor under
this Agreement.
<PAGE>
Grantor understands and agrees that the nature, extent and result of
Grantor Claims hereby released may not now be known or anticipated and
declares that it nevertheless desires, and hereby agrees, to release in
full all possible Grantor Claims against Grantee Parties arising from any
and all acts or omissions of any Grantee Party or other Person or the
transfers and assignments granted or contemplated by the Agreement
Documents or the other matters set forth above. Grantor expressly waives
and relinquishes all rights and benefits under 1542 of the California Civil
Code, which reads as follows:
"A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR
DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE
RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT
WITH THE DEBTOR."
2.02 GENERAL RELEASE BY GRANTEE AND OTHERS. Effective on the
Closing Date, Grantee, TIAA and RVM shall and do hereby release and
discharge Grantor, its respective subsidiaries and affiliates, and the
respective officers, directors, partners, members, agents, attorneys and
employees of each (collectively, the "Grantor Parties") from liability for
any and all of its or their obligations under the Loan Documents, and from
any and all claims, debts, demands, allegations, actions, causes of action,
suits, duties, controversies, agreements, promises, omissions, variances,
damages, judgments, costs, expenses, losses, obligations and liabilities
whatsoever, whether in law, equity or otherwise and whether or not
presently known (including any unknown or unsuspected claims within the
meaning of 1542 of the California Civil Code) (collectively, "Grantee
Claims") that Grantee, TIAA and RVM ever had, may now have, or hereafter
can, shall or may have against any Grantor Party based upon, arising out of
or related to (a) the Property, the Loan Documents, this Agreement
(including the negotiation execution, delivery, performance, administration
or enforcement thereof) or any of the transactions contemplated therein, or
(b) any act or omission of such Grantor Party or other Person prior to the
Closing Date in connection therewith or relating thereto; provided,
however, that such release shall not apply with respect to (i) any Grantee
Claim arising out of or resulting from the breach of any covenant or
warranty or any misrepresentation of Grantor under or contained in this
Agreement or any other Agreement Document or (ii) any Grantee Claims or
matters with respect to which Grantor has agreed to indemnify Grantee under
this Agreement. Anything contained herein to the contrary notwithstanding,
the release and limitation of liability set forth in this Section 2.02 with
respect to Grantor Parties shall be deemed to be void and of no further
force or effect if Grantor shall commence any action to restrain or rescind
the transfer of the Property or any part thereof to Grantee pursuant to
this Agreement, initiate Insolvency Proceedings, transfer title to the
Property to a Person other than Grantee or take any similar action.
<PAGE>
Grantee, TIAA and RVM understand and agree that the nature, extent
and result of Grantee Claims hereby released may not now be known or
anticipated and declares that it nevertheless desires, and hereby agrees,
to release in full (to the extent and subject to the exceptions set forth
herein) all possible Grantee Claims against Grantor Parties arising from
any and all acts or omissions of any Grantor Party prior to the Closing
Date or the other matters set forth above. Grantee, TIAA and RVM expressly
waive and relinquish all rights and benefits under Section 1542 of the
California Civil Code, which reads as follows:
"A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR
DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE
RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT
WITH THE DEBTOR."
The parties hereto acknowledge that the releases set forth in
Sections 2.01 and 2.02 hereof shall only be effective upon the transfer of
the Note and the Mortgage from TIAA to Grantee and the transfer of the
Property from Grantor to Grantee.
ARTICLE III
REPRESENTATIONS
3.01 FORMATION AND QUALIFICATION OF GRANTOR. To induce Grantee to
enter into this Agreement, Grantor represents and warrants to Grantee that
Grantor is a limited partnership duly formed and validly existing under the
Laws of the State of Illinois, is duly registered in Illinois, is in good
standing in Illinois, is qualified to do business in the State of
California, is in good standing in the State of California and has all
requisite power and authority (subject to the effects thereon of the
Superior Court proceeding) to conduct its business and to own and lease its
properties and to enter into this Agreement.
3.02 FORMATION AND QUALIFICATION OF GRANTEE. To induce Grantor to
enter into this Agreement, Grantee represents and warrants to Grantor that
Grantee is a limited liability company duly formed and validly existing
under the Laws of the State of Delaware, is duly registered in Delaware, is
in good standing in Delaware, is (or will be upon the Closing) qualified to
do business in the State of California, is in (or will be upon the Closing)
in good standing in the State of California and has all requisite power and
authority to conduct its business and to own and lease its properties and
to enter into this Agreement.
3.03 REA. To induce Grantee to enter into this Agreement, Grantor
represents and warrants to Grantee the following with respect to the REA:
(a) To the knowledge of Grantor, there are no defaults under
the REA by any party to the REA other than any default which may be related
to the operations of Montgomery Ward;
(b) To the knowledge of Grantor, the REA has not been assigned,
modified or amended in any way except as set forth in the definition of REA
set forth in Exhibit C attached hereto; and
<PAGE>
(c) To the knowledge of Grantor, as of the date set forth
above, the REA is in full force and effect.
(d) As used in this Section 3.03, the term "knowledge" shall
mean to the actual knowledge, without independent investigation of Brian
Ellison, Vice President of JMB Realty Corporation or Glenn Emig, Executive
Vice President of JMB Realty Corporation.
3.04 "AS IS". Except as otherwise specifically set forth herein,
Grantee agrees to accept the Property "AS IS", "WHERE IS" and "WITH ALL
FAULTS" in its present condition, subject to reasonable use, wear, tear and
natural deterioration of the Property between the date hereof and the
Closing.
ARTICLE IV
COVENANTS OF GRANTOR
4.01 CERTAIN LEGAL ACTIONS. Grantor hereby (a) agrees not to take
any action to rescind, set aside or invalidate this transaction, in whole
or in part, (b) disclaims any right, title or interest in any such action
brought by any other Person, and (c) assigns and transfers to Grantee all
of Grantor's right, title, interest and claim in and to the proceeds or
benefits of any such action or any recovery thereunder and agrees to
execute such Documents as Grantee shall reasonably require if any such
action is brought in order to defend or contest the same. This Section
4.01 shall survive Closing.
4.02 DELIVERY OF DOCUMENTS. At the Closing, Grantor shall deliver
to Grantee, without any warranty whatsoever, such Documents in respect of
the Property as are in Grantee's possession and are reasonably requested in
connection with the operation of or ownership of the Property.
4.03 ADDITIONAL AGREEMENTS; FURTHER ACTIONS. Grantor agrees to take
or cause to be taken such further action and execute and deliver or cause
to be executed and delivered such further Documents as Grantee from time to
time may reasonably deem proper or advisable to consummate and make
effective the transactions contemplated in this Agreement or otherwise to
carry out the purposes of this Agreement, provided that Grantor shall incur
no additional liability, cost or risk.
ARTICLE V
CONDITIONS TO EFFECTIVENESS
5.01 CLOSING CONDITIONS. The conveyance of the Property by Grantor
to Grantee pursuant to this Agreement shall occur immediately following the
closing of the sale of the Note and the Mortgage pursuant to the
TIAA/Grantee Agreement, which is anticipated to occur on December 31, 1998,
or such later date as Grantee may determine (but not later than March 20,
1999 without Grantor's consent), subject in each case to the fulfillment of
the following conditions (or the waiver thereof by either party, in whole
or in part, in each party's sole discretion):
<PAGE>
(a) Grantee shall have received each of the following, in
form and substance satisfactory to Grantee:
(i) the Deed executed by Grantor, and evidence of
recordation of the Deed in the Official Records of Los Angeles, California;
(ii) possession by Grantee of the Property;
(iii) the Bill of Sale executed by Grantor and such other
bills of sale, assignments and other instruments of transfer, without
warranty, as Grantee may reasonably request for the purpose of effectively
conveying to Grantee all of Grantor's interest in the Property to be
transferred pursuant to this Agreement;
(iv) the Assignment and Assumption of REA and the
Assignment and Assumption of the Parking Sublease, as consented to by the
City;
(v) the approvals and consents set forth on Exhibit B;
(vi) authorizing Resolutions for Grantor;
(vii) originals, or copies to the extent originals are
not available, of all of the Project Documents;
(viii) a title commitment from a title company
satisfactory to Grantee subject only to Permitted Encumbrances and any
affidavits, mutually acceptable in form and substance, from Grantor
reasonably requested by such title company, including an acceptable
"transferor's affidavit", provided that Grantor's liability shall be
limited to the Real Property in any such affidavits; and
(ix) a FIRPTA certificate and a similar certificate
required by the state of California.
(b) Grantor shall have received each of the following in form
and substance satisfactory to Grantor:
(i) the Assignment and Assumption of REA and the
Assignment and Assumption of the Parking Sublease, as consented to by the
City;
(ii) the approvals and consents set forth on Exhibit B;
(iii) authorizing Resolutions for Grantee; and
(iv) an assignment and assumption of Landlord's interest
in that certain Lease dated January 27, 1981 between Ernest W. Hahn, Inc.,
as landlord, and J.C. Penney Company, Inc., as tenant, recorded on January
29, 1981 as Instrument No. 81-105994, as assigned by landlord to Grantor by
Instrument No. 83-711208, recorded on June 24, 1983, and as modified by
Instrument No. 84-400119, recorded on April 3, 1984, and Instrument No. 94-
784756, recorded on June 29, 1984.
<PAGE>
(c) all declarations or filings with any Governmental Agency
necessary for the consummation of the transactions contemplated in this
Agreement shall have been made or filed;
(d) no breach of any covenant of Grantor or Grantee contained
in this Agreement shall have occurred;
(e) neither Grantor nor Grantee shall be subject to any
Insolvency Proceeding;
(f) each of the representations and warranties made by
Grantor and Grantee in this Agreement shall be true in all respects as if
made on as of the Closing Date; and
(g) each of Grantor and Grantee shall have delivered a
certificate to the other stating that the conditions to effectiveness of
this Agreement have been waived or fulfilled.
5.02 FAILURE OF CONDITIONS. In the event that any of the conditions
set forth in Section 5.01 are not fulfilled or waived by Grantee or
Grantor, as the case maybe, on or before the date set forth in Section 5.01
or, in the case of Grantee, such later date as Grantee may determine
(subject as aforesaid), Grantee or Grantor, as the case maybe, may elect to
terminate any further obligations of Grantee or Grantor, as the case maybe,
under this Agreement and in the event of such termination, this Agreement
or the termination thereof shall not be construed to limit or alter any
rights and obligations of any party under the Loan Documents.
<PAGE>
ARTICLE VI
MISCELLANEOUS
6.01 ENTIRE AGREEMENT. This Agreement and the other Agreement
Documents to be delivered hereunder constitute the entire agreement between
the parties with respect to the matters contained herein, and supersede any
and all prior oral agreements, understandings, arrangements and
representations. There are no formal or informal understandings,
arrangements or agreements with respect to the matters contained herein
other than as expressly set forth herein and in the other Agreement
Documents.
6.02 WAIVERS AND AMENDMENTS. No supplement to, modification or
amendment of, or waiver, consent or approval under, this Agreement shall be
effective unless in writing and signed by Grantee, Grantor and TIAA and any
consent or approval shall be effective only in the specific instance and
for the specific purpose for which given, and no supplement to,
modification or amendment of, or waiver, consent or approval under any
other Agreement Document shall be effective unless in writing and signed by
Grantee and Grantor and any consent or approval shall be effective only in
the specific instance and for the specific purpose for which given.
6.03 SURVIVAL. The attached Insert "Limitation on Rights and
Remedies", sets forth which representations and agreements of Grantor set
forth herein and in the other documents contemplated in this Agreement,
shall survive the Closing Date and the transfer of the Property to Grantee.
6.04 BENEFITS AND ASSIGNMENT. The Agreement Documents are made for
the purpose of defining the rights and obligations of Grantor and Grantee
in connection with the matters set forth therein and are intended for the
sole protection of Grantor and Grantee and their respective successors and
assigns, and no other Person shall have any rights or benefits of any
nature under or by reason of the Agreement Documents. The Agreement
Documents shall be binding on and inure to the benefit of each of Grantor
and Grantee and their respective successors and assigns and, to the extent
set forth in the signature provisions for each such party, RVM and TIAA,
except that Grantor shall have no right to assign any rights or interests
under any Agreement Document without the prior written consent of Grantee.
Grantee may at any time prior or subsequent to the Closing Date transfer
its interest in this Agreement and the Property to an affiliate of Grantee,
and upon such transfer such affiliate shall succeed to all of the rights
and duties of Grantee hereunder, and each reference in this Agreement to
Grantee (other than in the Preliminary Statements and in Article II) shall
mean and refer instead to such affiliate.
6.05 RULES OF CONSTRUCTION. (a) Each party hereto (x) has
cooperated and has been represented by counsel in the drafting and
preparation of this Agreement, (y) understands the implications of the
transaction, including any potentially adverse tax consequences hereof and
(z) is not acting under fraud or duress; accordingly, in any construction
to be made of this Agreement, the same shall not be construed against any
party hereto. (b) For purposes of this Agreement: (i) any reference to
"days" shall mean calendar days, (ii) the word "including" shall mean
"including without limitation", (iii) defined terms shall be equally
applicable to the singular and plural forms, and (iv) all existing and
future exhibits to this Agreement are incorporated in this Agreement by
this reference. (c) The unenforceability or invalidity of any provision of
<PAGE>
this Agreement or any other Agreement Document or any other Document
delivered hereunder shall not render any other provision or provisions
contained herein or therein unenforceable or invalid, and all such
provisions are declared to be severable. (d) Time is of the essence of the
documents contemplated by this Agreement. (e) The Agreement Documents
shall be governed by, and construed and enforced in accordance with, the
Laws of California.
6.06 NOTICES. All notices and other communications provided
hereunder shall be in writing and mailed, personally delivered or
telecommunicated to the appropriate party at the address set forth on the
signature page of this Agreement or, as to any party, at any other address
as shall be designated by it in a written notice sent to the other parties.
Any notice or other communication will be effective (a) if given by mail,
on the earlier of receipt or the third day after deposit in the United
States mails with first-class postage prepaid, (b) if given by personal
delivery or nationally recognized overnight courier, when delivered, or
(c) if by facsimile transmission on the date of confirmation of receipt of
such transmission.
6.07 FEES, COSTS AND EXPENSES. Each party hereto shall bear sole
responsibility for and promptly pay or cause to be paid all costs and
expenses incurred by it in connection with the preparation, negotiation,
execution and delivery of, and the performance of its obligations under,
this Agreement and the other Agreement Documents (including the fees and
disbursements of its legal counsel) or otherwise in connection with this
Agreement or the transactions contemplated herein, and any Taxes payable by
such party as a result of the transactions contemplated herein; provided,
however, that Grantee shall pay all closing costs, including transfer
taxes, recordation costs and title insurance premiums.
6.08 WAIVER OF VENDOR'S LIEN. Grantor hereby expressly waives any
right that it may now have or hereafter acquire under Section 3046 of the
California Civil Code or otherwise to a vendor's lien against the Property.
6.09 WAIVER OF JURY TRIAL. Each of the parties hereto waives trial
by jury in any action or other proceeding (including counterclaims),
whether at law or equity, brought by any party against any other on matters
arising out of or in any way related to or connected with this Agreement or
the other Agreement Documents.
6.10 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall constitute an original, and all of which
together shall constitute one and the same instrument. Delivery of an
executed counterpart of a signature page to this Agreement by telecopier
shall be effective as delivery of a manually executed counterpart of this
Agreement. Any delivery of a counterpart signature by telecopier shall
however, be promptly followed by delivery of a manually executed
counterpart.
6.11 There shall be no discrimination against or segregation of, any
person or group of persons on account of race, color, creed, religion, sex,
marital status, national origin, or ancestry in the sale, lease, sublease,
transfer, use, occupancy, tenure or enjoyment of the land, nor shall the
transferee himself, or any person claiming under or through him, establish
or permit any such practice or practices of discrimination or segregation
with reference to the selection, location, number, use or occupancy of
tenants, lessees, subtenants, sublessees or vendees in the land.
6.12 SEE ATTACHED INSERT - "LIMITATION ON RIGHTS AND REMEDIES"
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed as of the date first written above.
"GRANTEE":
RVM LONG BEACH PLAZA LLC
By: RETAIL VALUE INVESTMENT PROGRAM
LIMITED PARTNERSHIP __, a Delaware
limited partnership
By: COVENTRY REAL ESTATE PARTNERS, LTD.
(f/k/a Retail Value Management, Ltd.),
an Ohio limited liability company
By: __________________________
Name: Peter Henkel
Title: Managing Principal
<PAGE>
"GRANTOR":
CARLYLE REAL ESTATE LIMITED PARTNERSHIP-XIII
By: JMB REALTY CORPORATION,
a Delaware Corporation, its General Partner
By: ________________________________
Name:
Title:
<PAGE>
With respect to Section 1.04 and
Section 2.02 of this Agreement
"RVM":
RVM II LONG BEACH PLAZA LLC
By: RETAIL VALUE INVESTMENT PROGRAM
LIMITED PARTNERSHIP II, a Delaware
limited partnership
By: COVENTRY REAL ESTATE PARTNERS, LTD.
(f/k/a Retail Value Management, Ltd.),
an Ohio limited liability company
By:
------------------------------
Name: Peter Henkel
Title: Managing Principal
<PAGE>
For the purposes of consenting to this transaction and joining in the
release provisions of Section 2.02 of this Agreement.
"TIAA"
TEACHERS INSURANCE AND ANNUITY
ASSOCIATION OF AMERICA
By:
------------------------------
Name: Diane C. Young
Title: Associate Director
<PAGE>
INSERT TO SETTLEMENT AGREEMENT
------------------------------
Limitation on Rights and Remedies. Notwithstanding anything to
the contrary contained in this Agreement or the Agreement Documents
(collectively, the "Documents"):
Grantee's rights and remedies in the event Grantor fails to
comply with any obligation ("Obligation") under any Document arising or
accruing before the Closing, including but not limited to any
representation, warranty, covenant and indemnity, shall be limited to the
right to terminate this Agreement on or before the Closing Date; provided,
however, that if Grantor fails to make the conveyance required by this
Agreement, Grantee shall also be entitled to the remedy of specific
performance.
No obligation of Grantor shall survive the Closing Date except
for the obligation to turn over any rents actually received by Grantor,
Grantor's covenant set forth in Section 4.01 of the Agreement and the
releases set forth in Section 2.01.
Grantor shall not be obligated to perform any act or execute
any document which requires incurring out-of-pocket costs (other than its
own legal fees).
Grantor shall not be required to close the transaction
contemplated by this Agreement unless Grantee, or an affiliate of Grantee,
shall have acquired from TIAA (and given to Grantor evidence thereof
reasonably satisfactory to Grantor) all right, title and interest of TIAA
in and to the Note and Mortgage, including but not limited to any right
which TIAA may have to assert any claim, action or cause of action against
Grantor which is not released pursuant to Section 2.02 of the Agreement.
There shall be no prorations of any kind or obligations to pay
any amounts to Grantee or any other person or entity, whether or not any
such amounts are delinquent, including, but not limited to taxes;
provided, however, Grantor's rights (if any) with respect to all amounts
held by the Receiver on the Closing Date shall be quitclaimed by Grantor to
Grantee or the right to receive the same shall be assigned to Grantee at
the Closing, and any rents actually received after the Closing Date by
Grantor shall be delivered to Grantee promptly after receipt thereof.
Without limitation on the foregoing, but in addition thereto,
no present or future advisor, trustee, director, officer, employee,
beneficiary, shareholder, participant, direct or indirect partner, member
or agent of Grantor shall have any personal liability, directly or
indirectly, under or in connection with the Documents or any instrument or
agreements entered into in connection therewith; and Grantee and its
successors and assigns, and, without limitation, all other persons and
entities shall look solely to Grantor and Grantor's interest in the
Property for the payment of any claim or for any performance; and Grantee
hereby waives any all such personal liability.
<PAGE>
EXHIBIT A
DESCRIPTION OF REAL PROPERTY
<PAGE>
EXHIBIT B
REQUIRED THIRD PARTY CONSENTS
1. Consent of the City to the Assignment and Assumption of the
Parking Sublease, which consent shall expressly provide that the City
approves the financial capability and responsibility of the assignee and
that the assignor is released from all liability under the Parking
Sublease.
2. Consent of the Superior Court to the consummation of this
Agreement by Grantor.
<PAGE>
EXHIBIT C
DEFINITIONS
As used in this Agreement, the following terms shall have the
following meanings:
"Agreement" means this Settlement Agreement, including all exhibits.
"Authorization" means any authorization, consent, approval, order,
license, permit, exemption or other action by or from, or any filing,
registration or qualification with, any Governmental Agency or other
Person.
"Authorizing Resolutions" means (a) in the case of a corporation, a
certified copy of resolutions adopted by its board of directors, (b) in the
case of a partnership (whether general or limited), a certificate signed by
all of its general partners, and (c) in the case of a trust or any other
entity, evidence of such other action as Grantee may require, in each case
authorizing the execution, delivery and performance of all Agreement
Documents to which it is a party or by which it is bound.
"Charter Documents" means (a) in the case of a corporation, its
articles of incorporation and bylaws, (b) in the case of a partnership, its
partnership agreement and any certificate or statement of partnership, (c)
in the case of a limited liability company, its certificate of formation
and operating agreement and (d) in the case of a trust or any other entity,
its formation documents, in each case as amended from time to time.
"Closing Date" means the date of the conveyance of the Property by
Grantor to Grantee pursuant to Section 5.01 of the Agreement.
"Documents" means written documents and materials, including
agreements, approvals, certificates, consents, instruments, financing
statements, reports, budgets, forecasts and opinions.
"Governmental Agency" means (a) any government or municipality or
political subdivision of any government or municipality, (b) any
assessment, improvement, community facilities or other special taxing
district, (c) any governmental or quasi-governmental agency, authority,
board, bureau, commission, corporation, department, instrumentality or
public body, (d) any court, administrative tribunal, arbitrator, public
utility or regulatory body, or (e) any comparable authority.
"Insolvency Proceeding" means, as to any Person, (a) the institution
by or against such Person of any bankruptcy, insolvency, reorganization,
arrangement, readjustment of debt, dissolution, custodianship,
conservatorship, liquidation, rehabilitation or similar proceeding relating
to such Person or all or any part of its property under the Laws of any
jurisdiction, (b) the entry of an order for relief against such Person by
the Bankruptcy court, (c) the making by such Person of an assignment for
the benefit of creditors, or (d) the appointment of a receiver, trustee or
similar official for such Person or all or any part of its property, or the
application of such Person for, or the consent of such Person to, any such
appointment.
<PAGE>
"Laws" means all federal, state and local laws, rules, regulations,
ordinances and codes.
"Lease" means any lease, rental contract, occupancy agreement,
license or other arrangement pursuant to which any Person occupies or has
the right to occupy or use any portion of the Real Property, in each case
as supplemented, modified, amended, renewed and extended from time to time.
"Lien" means any lien, mortgage, deed of trust, pledge, security
interest or other charge or encumbrance.
"Loan Documents" means the Mortgage and the Note.
"Other Requirements" means (a) the terms, conditions and requirements
of all Project Documents, Authorizations and Rights of Others relating to
the Property or the Project and all other Documents, agreements and
restrictions relating to, binding on or affecting the Property, including
covenants, conditions and restrictions, leases, easements, reservations,
rights and rights-of-way, (b) requirements relating to the sale or lease of
any portion of the Real Property or the supply of Utility Services to the
Real Property, (c) requirements and recommendations of the soils report and
any environmental impact report or negative declaration, (d) all building,
zoning, land use, planning and subdivision requirements, and
(e) requirements relating to construction of any offsite improvements.
"Permitted Encumbrances" means, as to any portion of the Property,
the items described on Schedule B on that certain title commitment dated
May 7, 1998 and issued by First American Title Insurance Company.
"Person" means any person or entity, whether an individual, trustee,
corporation, partnership, joint stock company, trust, unincorporated
organization, business association or firm, joint venture, Governmental
Agency or otherwise.
"Personal Property" means all inventory, equipment, fixtures and
other goods (as those terms are defined in Division 9 of the UCC) located
at, upon or about, or affixed or attached to or installed in, the Real
Property, or used or to be used in connection with or otherwise relating to
the Real Property or the ownership, use, development, construction,
maintenance, management, operation, marketing, leasing or occupancy of the
Real Property; if and to the extent owned by Grantor.
"Project Documents" means all Documents of every kind and nature
relating to the Real Property or the ownership, use, development,
construction, maintenance, management, operation, marketing, leasing,
licensing, permitting, occupancy, sale or financing of any part of the
Property.
"Property" means all the property securing repayment of the Note,
including and/or in addition, the Real Property, the Leases, the Rents, the
Personal Property the Project Documents, any warranties, guaranties and
indemnities in favor of Grantor directly relating to the Property, any
claims held by Grantor against any party with respect to the project and
any utility deposits held by third parties.
<PAGE>
"REA" means that certain Construction, Operation and Reciprocal
Easement Agreement (Long Beach Plaza), dated as of January 27, 1981, which
was recorded on January 29, 1981, as instrument No. 81-105995 in the
official Records, modified by Instrument No. 84-400118 recorded on April
3, 1984, modified by Instrument No. 84-784755 recorded on June 29, 1984 and
assigned by an Assignment of REA, recorded on June 24, 1983 as Instrument
No. 83-711206.
"Real Property" means the property described on Exhibit "A" attached
hereto.
"Remedy" means any right, power or remedy.
"Rents" means all rents, issues, income, revenues, royalties and
profits payable under or with respect to or otherwise derived from the Real
Property or any Lease, including (a) any such amounts past due and unpaid,
(b) any security deposits or other sums paid or payable under any Lease,
and (c) all "Rents" as defined in the Deed of Trust.
"Right of Others" means, as to any property in which a Person has an
interest, any legal or equitable claim or other interest (other than a Lien
but including a leasehold interest, a right of first refusal or a right of
repossession or removal) in or with respect to such property held by any
other Person, and any option or right held by any other Person to acquire
any such claim or other interest or any Lien in or with respect to such
property.
"Taxes" means all taxes, assessments, charges, fees and levies
(including interest and penalties) imposed, assessed or collected by any
Governmental Agency.
"Tenant" means, as to any Lease, the tenant, lessee or licensee under
such Lease.
"UCC" means the California Uniform Commercial Code.
"Utility Services" means all utility services, including water, gas,
electricity, telephone, garbage removal and sewer services.
<PAGE>
EXHIBIT D
QUITCLAIM DEED
----------------------------------------
SPACE ABOVE THIS LINE FOR RECORDER'S USE
This instrument prepared by,____________________ Tax bills for the real
property and when recorded, return to:
described herein to be sent to:
[Print/Type Name]
The value of the property in this conveyance, exclusive of liens and
encumbrances, is $100 or less; and there is no additional consideration
received by the grantor, and that this Deed is exempt from the payment of
documentary transfer tax pursuant to Section 11911 of the California
Revenue and Taxation Code. The property conveyed herein is located in Los
Angeles County, California.
THIS QUITCLAIM DEED, dated as of this 31st day of December, 1998, is made
by Carlyle Real Estate Limited Partnership-XIII, an Illinois limited
partnership, having an office at ________________ (the "Grantor").
to RVM Long Beach Plaza LLC, a Delaware limited liability company, having
an office at 888 Seventh Avenue, Suite 888 Seventh Avenue, 12th Floor, New
York, NY 10106 (the "Grantee").
WITNESSETH, that the Grantor, in consideration of the sum of Ten
Dollars ($10.00) and other good and valuable consideration paid by Grantee,
the receipt and sufficiency of which is hereby acknowledged, does hereby
remise, release and forever quitclaim unto Grantee, its successors and
assigns, all of its right, title and interest, if any, in and to that
certain plot, piece or parcel of land (together with the buildings and
improvements thereon erected) described on SCHEDULE "A" hereto (the
"Premises").
TOGETHER WITH all right, title and interest (if any) of Grantor in
and to any streets and roads abutting the Premises to the center line
thereof, as well as any gaps, strips or gores on, around or within the
Premises;
TOGETHER WITH all right, title and interest (if any) of Grantor in
and to any hereditaments and appurtenances, and all of the estate and
rights of Grantor;
TO HAVE AND TO HOLD the Premises herein conveyed unto the Grantee,
its successors and assigns forever;
AND notwithstanding anything to the contrary contained herein, this
conveyance is executed and delivered without warranties of title, express
or implied of any kind whatsoever.
<PAGE>
AND in addition, the Grantee herein covenants by and for itself, its
heirs, executors, administrators, and assigns, and all persons claiming
under or through it, that there shall be no discrimination against or
segregation of, any person or group of persons on account of race, color,
creed, religion, sex, marital status, national origin or ancestry in the
sale, lease, sublease transfer, use, occupancy, tenure or enjoyment of the
land herein conveyed, nor shall Grantee itself or any person claiming under
or through it establish or permit any such practice or practices of
discrimination or segregation with reference to the selection, location,
number, use or occupancy of tenants, lessees, subtenants, sublessees, or
vendees in the land herein conveyed. The foregoing covenants shall run
with the land.
IN WITNESS WHEREOF, the Grantor has duly executed, acknowledged and
delivered this conveyance as of the day and year first above written.
GRANTOR:
CARLYLE REAL ESTATE LIMITED PARTNERSHIP-XIII
By: JMB REALTY CORPORATION,
a Delaware Corporation, its General Partner
By: ________________________________
Name:
Title:
<PAGE>
STATE OF ____________________ )
) ss.:
COUNTY OF ______________________ )
On ____________________, 1998, before me,____________________, the
undersigned Notary Public, personally appeared
__________________________________, personally known to me or proved to me
on the basis of satisfactory evidence to be the person(s) whose name(s)
is/are subscribed to the within instrument and acknowledged to me that
he/she/they executed the same in his/her/their authorized capacity(ies),
and that by his/her/their signature(s) on the instrument the person(s), or
the entity on behalf of which the person(s) acted, executed the instrument.
WITNESS my hand and official seal.
------------------------------
Notary Public
<PAGE>
SCHEDULE A
----------
Premises situate, lying and being in the City of Long Beach, County of Los
Angeles and State of California, being more particularly described as
follows:
[INSERT LEGAL DESCRIPTION]
<PAGE>
EXHIBIT E
BILL OF SALE
KNOW ALL MEN BY THESE PRESENTS, that CARLYLE REAL ESTATE LIMITED
PARTNERSHIP-XIII, an Illinois limited partnership ("Grantor"), for Ten
Dollars ($10.00) and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, and paid by RVM LONG BEACH
PLAZA LLC, a Delaware limited liability company ("Grantee") has bargained
and sold and by these presents does grant and convey unto Grantee, its
successors and assigns, all of Grantor's right, title and interest in and
to the fixtures, equipment and personal property owned by Grantor and
attached to and used in the operation of certain property known as Long
Beach Plaza, Long Beach, California (all of the foregoing being hereinafter
collectively referred to as the "Personal Property").
TO HAVE AND HOLD the Personal Property unto Purchaser, its successors
and assigns, forever, "as is", without any representation or warranty
whatsoever, express or implied, including any representation as to title or
as to merchantability or fitness for a particular purpose.
Without limitation on the foregoing, but in addition thereto, no
present or future advisor, trustee, director, officer, employee,
beneficiary, shareholder, participant, direct or indirect partner, member
or agent of Grantor shall have any personal liability, directly or
indirectly, under or in connection with the Personal Property or any
instrument or agreements entered into in connection therewith; and Grantee
and its successors and assigns, and, without limitation, all other persons
and entities shall look solely to Grantor and Grantor's interest in the
Property for the payment of any claim or for any performance; and Grantee
hereby waives any all such personal liability.
<PAGE>
IN WITNESS WHEREOF, Grantor has duly executed this Bill of Sale as of
the 31st day of December, 1998.
"GRANTOR":
CARLYLE REAL ESTATE LIMITED PARTNERSHIP-XIII
By: JMB REALTY CORPORATION,
a Delaware Corporation, its General Partner
By: ________________________________
Name:
Title:
