EXHIBIT 10
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STATE OF MINNESOTA DISTRICT COURT
COUNTY OF HENNEPIN FOURTH JUDICIAL DISTRICT
Case Type: Other Civil
Teachers Insurance and Annuity ) Case No. _______________
Association of America, a New York)
corporation, )
)
Plaintiff, )
) STIPULATION
vs. )
)
222 South Ninth Street )
Limited Partnership, )
a Minnesota limited )
partnership, et al., )
)
Defendants. )
WHEREAS, plaintiff Teachers Insurance and Annuity Association of
America ("Teachers") is the owner and holder of a first mortgage and
security interest in all those parcels of land situated in the City of
Minneapolis, County of Hennepin, and State of Minnesota, legally described
on Exhibit A to the Verified Complaint in this action (the "Action") and
made a part hereof, together with the buildings and improvements thereon
and all rights, powers, easements, interests and privileges appurtenant
thereto and granted in connection therewith all as more particularly
described in the Mortgage (as defined in the Summons and Verified Complaint
attached as Exhibit 1 to this Stipulation) as the "mortgaged premises"
(hereinafter all referenced as the "Mortgaged Property"); and
WHEREAS, defendants OB Joint Venture, Campbell-Mithun-Esty, L.L.C.,
U.S. Bancorp Piper Jaffray, Inc., and 222 South Ninth Street Limited
Partnership ("222 South Ninth") are the fee owners of the Mortgaged
Property and defendant 222 South Ninth is the borrower under the Mortgage
and Consolidated Note (Exhibit F to the Verified Complaint) secured by the
Mortgaged Property (borrower and fee owners are hereinafter sometimes
collectively referred to as "Mortgagor"); and
WHEREAS, Teachers has not received the June 1, 2000 installment of
principal and fixed interest as required under the Mortgage, thereby
causing a default to occur thereunder, which activates various rights of
Teachers; and
WHEREAS, Teachers has commenced this Action for foreclosure of the
Mortgaged Property and the Secured Property (as defined in the Verified
Complaint); and
WHEREAS, Kennedy-Wilson Minnesota Management, Inc. ("Kennedy-Wilson")
is the manager of the Mortgaged Property as successor to JMB Properties
Company ("JMB") under the a Management Agreement between JMB and 222 South
Ninth dated June 30, 1986, but effective from and after April 1, 1986, as
amended by the First Amendment to Management Agreement dated May 29, 1992
(collectively "Management Agreement"); and
<PAGE>
WHEREAS, Mortgagor and Teachers desire to have Kennedy-Wilson
appointed by the Court in this Action to act as receiver for the Mortgaged
Property during the pendency of the Action and any period of redemption;
and
WHEREAS, under the Cash Escrow and Security Agreement ("Escrow
Agreement") between Teachers, 222 South Ninth, JMB, and Heitman Financial
Services, Ltd., now known as Heitman Financial Services LLC, a Delaware
limited liability company ("Heitman") (Exhibit H to the Verified
Complaint), Heitman was appointed by Teachers to serve as Teachers' Escrow
Agent for the purposes set forth in Paragraph 1 of the Escrow Agreement;
and
WHEREAS, Teachers is entitled to give notice to Heitman pursuant to
Paragraph 8 of the Escrow Agreement that a default exists under the
Mortgage and Consolidated Note, and directing that Heitman, after payment
of certain expenses and its accrued but unpaid fees as escrow agent, pay
all of the remaining funds in the escrow account to Teachers, said funds to
be applied exclusively to the principal balance due and owing to Teachers
by Mortgagor under the Mortgage and Consolidated Note; and
WHEREAS, the Escrow Agreement will terminate immediately upon payment
by Heitman to Teachers of the remaining balance of funds in the escrow
account established thereunder; and
WHEREAS, Teachers may, in its sole discretion, enter into a new
escrow agreement with Heitman, as its escrow agent, and Kennedy-Wilson, as
receiver, pursuant to which Teachers may deposit funds into an escrow
account managed by Heitman. The new escrow agreement will provide that,
upon written approval by Teachers or otherwise in accordance with the terms
and conditions of said escrow agreement, Heitman may disburse funds from
the escrow account upon application by Kennedy-Wilson to cover costs and
expenses of the receivership under Minn. Stat. Sections 559.17 and 576.01
and Paragraphs 8 and 13 of the Order for Appointment of a Receiver attached
to this Stipulation as Exhibit 2. Such sums advanced by Heitman from the
escrow account are deemed to be secured in the same priority with the
indebtedness evidenced by the Consolidated Note and Mortgage, and all sums
so advanced shall bear interest from the date such advances are made at the
same rate of interest borne by the indebtedness, and shall be deemed to be
part of the amount due pursuant to the Consolidated Note and Mortgage. If
such advances are made after the foreclosure sale, they shall, with
interest, be part of the sum required to be paid to redeem from the
foreclosure sale; and
WHEREAS, Mortgagor and Teachers desire that the foreclosure of the
Mortgaged Property and Secured Property as defined in the Verified
Complaint, and all other relief sought by the Verified Complaint in this
Action be granted by the Court without further notice to any of the parties
to this Stipulation; and
WHEREAS, Teachers will move diligently and expeditiously to cause the
foreclosure sale of the Mortgaged Property to be conducted on the earliest
practicable date, and will move diligently and expeditiously after the
foreclosure sale of the Mortgaged Property for an Order by the Court
confirming the foreclosure sale at the earliest practicable date.
NOW, THEREFORE, it is hereby stipulated and agreed by and between the
parties hereto that:
1. The foregoing recitals are hereby incorporated into and made
part of this Stipulation.
<PAGE>
2. All parties signing this Stipulation represent and warrant that
each has the right and power, and is duly authorized and empowered to enter
into, execute and deliver this Stipulation on behalf of the party for whom
they are signing, and to bind that party.
3. Each of OB Joint Venture, OB Joint Venture II and 222 South
Ninth (hereinafter sometimes collectively "the Partnerships") has delivered
Teachers each of the documents listed on Exhibit 3 to this Stipulation (the
"Partnership Documents"). Each of the Partnerships represents and warrants
for itself only that: (1) there have been no amendments or modifications to
the documents included among the Partnership Documents; and (2) except as
set forth in its documents included among the Partnership Documents, there
have been no additions, transfers or assignments of partnership interests
in its Partnerships. Each of the Partnerships acknowledges that Teachers
is relying on the representations and warranties contained in this
Paragraph 3.
4. All parties signing this Stipulation admit that they have been
properly served with the Summons and Verified Complaint in this Action.
All parties signing this Stipulation agree that no answer or other response
to the Verified Complaint need be made by any of them , but instead ask
that the Court immediately enter the "Findings of Fact, Conclusions of Law,
and Order for Judgment" attached to this Stipulation as Exhibit 4.
5. All parties to this Stipulation ask that the "Order for the
Appointment of a Receiver" (Exhibit 2) be entered by the Court immediately
without further notice to any of the parties.
6. The Management Agreement shall terminate upon entry of the
Order for Appointment of a Receiver and Mortgagor and Kennedy-Wilson agree
that they have fulfilled all contractual obligations and duties of care
which they owed one another under the Management Agreement.
7. Upon issuance by the Court of an order confirming the
foreclosure sale and the running of the period of redemption without any
redemption, Defendants or any agent, affiliate, partner, officer, director,
assign, representative, or employee of Defendants ("Defendants'
Affiliates") and excepting the "Excluded Items" defined below, Teachers
shall be deemed to have forever discharged and fully released Defendants,
their general and limited partners, employees, agents, officers, directors,
servants, representatives, assigns, predecessors or successors in interest,
and all other affiliated persons, entities, firms, companies or
corporations, and all of them from any and all loss, damage or liability
related to or arising out of the Mortgage, Security Agreement, Escrow
Agreement, Consolidated Note, First Amended Assignment, and Assignment of
Agreement (all as defined in the Verified Complaint), and all other Loan
Documents. The foregoing notwithstanding, Teachers shall not be deemed to
have released 222 South Ninth or its general partners from any loss, damage
or liability suffered by Teachers arising out of any fraud or willful or
intentional misrepresentation by 222 South Ninth or its general partners in
connection with the execution and delivery of the Loan Documents (as
defined in the Second Amendment to Mortgage) or in connection with
withdrawing any portion of the Escrowed Funds (as defined in the Escrow
Agreement) (collectively the "Excluded Items").
Upon issuance by the Court of an order confirming the foreclosure
sale and the running of the period of redemption without any redemption by
Defendants or Defendants' Affiliates, Defendants shall be deemed to have
forever discharged and fully released Teachers, its employees, agents,
officers, directors, servants, representatives, assigns, predecessors or
successors in interest, and all other affiliated persons, entities, firms,
companies or corporations, and all of them of and from any and all loss,
damage or liability related to or arising out of the Loan Documents or the
loan evidenced by the Consolidated Note.
<PAGE>
8. Upon receipt by Heitman from Teachers of the notice of default
prescribed under Paragraph 8 of the Escrow Agreement, Heitman shall, after
payment of its unpaid fees for serving as escrow agent, pay the balance
remaining in the escrow account to Teachers. All parties hereto agree
that, regardless of the terms of Paragraph 8 of the Escrow Agreement, the
escrowed funds paid by Heitman to Teachers shall be applied exclusively to
the principal balance then due and owing under the Consolidated Note and
Mortgage, and Mortgagor, JMB and Kennedy-Wilson hereby waive any and all
rights they may have under the Escrow Agreement.
9. All parties signing this Stipulation having an interest in the
Mortgaged Property ("Parties in Interest") hereby grant, transfer and
assign to Teachers all of their rights, interests and claims under any and
all pending protests or other proceedings challenging the real property
taxes payable with respect to the Mortgaged Property in the current,
preceding or succeeding calendar years, and any refunds, warrants and
recoveries resulting therefrom (the "Proceedings"), including without
limitation, that certain proceeding filed in Hennepin County District Court
on behalf of O.B. Joint Venture on February 9, 2000, as Court File Number
TC 27869. The Parties in Interest further agree that they shall reasonably
cooperate with and assist Teachers in the prosecution of the Proceedings,
including but not limited to, making available to Teachers, at its request,
any information in their possession relative to the Proceedings,
substituting Teachers as the Petitioner in such Proceedings, permitting
Teachers to prosecute the Proceedings in the name of the Parties in
Interest, and assisting in Teachers' efforts to replace the legal counsel
of the Parties in Interest in the Proceedings with Teachers' legal counsel.
The Parties in Interest agree that any awards resulting from the
Proceedings shall be delivered as follows: (i) if received after
appointment of the receiver but before expiration of the redemption period,
to the receiver; and (ii) if received after the expiration of the
redemption period, to Teachers. Teachers' agrees to reimburse the Parties
in Interest for any of their out-of-pocket costs incurred by them in
connection with satisfying any requests by Teachers for the cooperation or
assistance of the Parties in Interest in the prosecution of the
Proceedings. Teachers agrees to indemnify, defend and hold the Parties in
Interest harmless against any action or claim brought by any of the tenants
of the Mortgaged Property claiming a right under such tenant's lease to a
portion of any real estate tax refund or recovery actually received by
Teachers.
10. The Escrow Agreement shall terminate immediately upon payment
by Heitman to Teachers of the remaining balance of funds in the escrow
account.
11. Teachers agrees to indemnify, defend and hold each party
signing this Stipulation harmless against claims or actions brought by a
tenant of the Mortgaged Property for its security deposit (including
accrued interest thereon, if applicable), but only to the extent that such
tenant's security deposit (including accrued interest thereon, if
applicable) has been received by Teachers.
12. Each party signing this Stipulation shall have no personal
liability for the payment of the Judgment as that term is defined in
paragraph C of the attached Conclusions of Law, or any interest thereon, or
any attorneys' fees and costs incurred by Teachers in connection with this
Action, and no judgment shall be docketed against any such party as a
result of this Action.
<PAGE>
13. This Stipulation may be signed in counterparts and faxed
signatures may be treated as originals.
OB JOINT VENTURE,
a South Dakota general partnership
BY: JMB/PIPER JAFFRAY TOWER ASSOCIATES,
an Illinois general partnership,
Co-Partner
BY: CARLYLE REAL ESTATE LIMITED
PARTNERSHIP-XIV, an Illinois
limited partnership
BY: JMB REALTY CORPORATION,
a Delaware corporation
By:
Its:
BY: JMB/PIPER JAFFRAY TOWER
ASSOCIATES II, an Illinois
general partnership, Co-Partner
BY: CARLYLE REAL ESTATE LIMITED
PARTNERSHIP-XIV, an Illinois
limited partnership,
General Partner
BY: JMB REALTY CORPORATION,
a Delaware corporation,
General Partner
By:
Its:
<PAGE>
CAMPBELL-MITHUN-ESTY, L.L.C.,
a Delaware Limited Liability Company
By:
Its:
U.S. BANCORP PIPER JAFFRAY, INC.,
a Delaware corporation
By:
Its:
222 SOUTH NINTH STREET LIMITED PARTNERSHIP,
a Minnesota limited partnership
BY: OB JOINT VENTURE II, an Illinois
Limited partnership, General Partner
BY: JMB/PIPER JAFFRAY TOWER
ASSOCIATES, an Illinois general
partnership, General Partner
BY: CARLYLE REAL ESTATE LIMITED
PARTNERSHIP-XIV, an Illinois
limited partnership,
General Partner
BY: JMB REALTY CORPORATION,
a Delaware Corporation,
General Partner
By:
Its:
<PAGE>
LIMITED PARTNERS:
U.S. BANCORP PIPER JAFFRAY, INC.,
a Delaware corporation
By:
Its:
SAATCHI & SAATCHI MN, INC.,
a Minnesota corporation
By:
Its:
LHDL REALTY LIMITED PARTNERSHIP,
a Minnesota limited partnership
BY: LARKIN, HOFFMAN, DALY & LINDGREN, LTD.,
its general partner
By:
Its:
JMB PROPERTIES COMPANY,
an Illinois general partnership
Its:
HEITMAN FINANCIAL SERVICES LLC,
Successor by statutory merger to
Heitman Financial Services, Ltd.
By:
Its:
KENNEDY-WILSON MINNESOTA MANAGEMENT, INC.
By:
Its:
TEACHERS INSURANCE AND ANNUITY
ASSOCIATION OF AMERICA, a New York
Corporation
By:
Its:
