<PAGE> 1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-K
FOR ANNUAL AND TRANSITION REPORTS
PURSUANT TO SECTIONS 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
(Mark One)
[x] ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934 [NO FEE REQUIRED, EFFECTIVE OCTOBER 7, 1996].
For the fiscal year ended December 31, 1996;
OR
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934 FOR THE TRANSITION PERIOD FROM ____________ TO
_____________
Commission File No. 0-11538
OVERSEAS PARTNERS LTD.
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(Exact name of registrant as specified in its charter)
Islands of Bermuda N/A
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(State or other jurisdiction of incorporation (I.R.S. Employer Id. No.)
or organization)
Craig Appin House, Wesley Street, Hamilton 5, Bermuda
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(Address of principal executive offices)
441-295-0788
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(Registrant's telephone number, including
area code)
Securities registered pursuant to Section 12(b) of the Act:
<TABLE>
<S> <C>
Name of Each Exchange
Title of Each Class On Which Registered
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None None
</TABLE>
Securities registered pursuant to Section 12(g) of the Act:
Capital Stock, par value $.10 per share
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(Title of Class)
Indicate by check mark whether the Registrant (1) has filed all
reports required to be filed by Section 13 or 15(d) of the Securities Exchange
Act of 1934 during the preceding 12 months (or for such shorter period that the
Registrant was required to file such reports), and (2) has been subject to such
filing requirements for the past 90 days. YES X . NO ___.
Indicate by check mark if disclosure of delinquent filers pursuant
to Item 405 of Regulation S-K (#299.405 of this chapter) is not contained
herein, and will not be contained, to the best of registrant's knowledge, in
definitive proxy or information statements incorporated by reference in Part
III of this Form 10-K or any amendment to this Form 10-K. [X]
The aggregate market value of the Common Stock held by
non-affiliates of the Registrant, based on a price per share of $14.24, the
price per share as of January 9, 1997, at which the Registrant has rights of
first refusal for the purchase of its shares offered for sale by shareowners,
was $1,840,110,258 as of February 28, 1997.
The number of shares of Registrant's Common Stock outstanding as of
February 28, 1997 was 135,000,000.
DOCUMENTS INCORPORATED BY REFERENCE
Portions of the registrant's definitive proxy statement for
its annual meeting of shareowners scheduled for May 28, 1997 are incorporated
by reference in answer to Part III of this Report.
<PAGE> 2
PART I
Item 1. Business
Overseas Partners Ltd. ("OPL") was incorporated in Bermuda
in June 1983 by United Parcel Service of America, Inc. ("UPS"). On December
31, 1983, prior to commencing operations, OPL was spun off when UPS paid a
special dividend of one share of Overseas Common Stock for each share of UPS
Common Stock then outstanding. Since commencement of operations on January 1,
1984, OPL and its wholly-owned subsidiaries (collectively "Overseas") have been
engaged in the reinsurance business and in the leasing, real estate and hotel
businesses. Overseas' headquarters is located in Bermuda and its stewardship
and reinsurance activities are conducted from Bermuda, one of the world's
foremost reinsurance markets.
Overseas' primary source of business is reinsurance. Its
largest reinsurance program is the reinsurance of Shippers' Risk
insurance issued by United States based insurance companies covering loss or
damage to packages carried by subsidiaries of UPS. In addition, Overseas
offers various types of reinsurance to a number of insurers. Currently,
Overseas has treaty relationships with Hannover Re, Lincoln National
Reassurance Company, Liberty Mutual Fire Insurance Company, Prudential Property
and Casualty Insurance Co., American International Specialty Lines Insurance
Co., New Hampshire Insurance Co., Motors Insurance Corporation, Associated
Industries Insurance Company, Inc. (formerly Associated Industries of Florida),
and Equitable Life Insurance Company. Overseas reinsurance business is carried
on by OPL and by Overseas Partners Re Ltd. (OP Re), a wholly-owned subsidiary.
Both OPL and OP Re are Class III reinsurers under the laws of Bermuda.
OPL's United States based subsidiary, Overseas Partners
Capital Corp. ("OPCC"), is engaged in the leasing and real estate & hotel
businesses. See Leasing, Real Estate and Hotel Activities at page 7 hereof.
Information concerning Overseas' identifiable assets, revenues and
operating income relating to Overseas' reinsurance and leasing and real estate
activities is set forth in Note 9 in the Notes to Consolidated Financial
Statements. See "Item 8 -- Financial Statements and Supplementary Data" below.
<PAGE> 3
REINSURANCE ACTIVITIES
Reinsurance of Shippers' Risk Insurance
Generally, UPS customers who wish to insure their packages
for amounts greater than $100 may do so by paying a premium of 35 cents per
$100 of declared value (or their equivalents in non-US currencies) with similar
arrangements internationally. Shippers' Risk insurance premiums on packages
carried in the United States are remitted on the shippers' behalf to United
States based insurance companies who provide the primary insurance against the
risks of loss or damage in excess of $100 to the shippers' packages, unless the
shippers direct otherwise. Similar arrangements are in effect for
international origins and destinations.
This insurance is reinsured by OPL, for which it receives
premiums equal to the excess value charges received by the primary insurer less
a ceding commission and certain taxes and expenses. OPL reimburses the primary
property and casualty insurer for the losses it pays on the Shippers' Risk
insurance. Earned premiums from Shippers' Risk reinsurance constituted 71.8%,
77.6% and 78.0% of Overseas' reinsurance premiums earned in 1996, 1995 and
1994, respectively.
The reinsurance of Shippers' Risk insurance does not
involve transactions between UPS and OPL. National Union Fire Insurance
Company, New Hampshire Insurance Company, Abeille General Insurance Company
and Nichido Fire and Marine Insurance Company, subsidiaries of American
International Group, Inc. ("AIG"), insure customer packages in return for
premiums paid by the customers. All of the primary insurers have been assigned
ratings of A++ (superior) by A. M. Best Company, Inc., a leading analyst of
insurance companies.
Other Reinsurance
Overseas' other reinsurance business is substantial and
growing. 1996 reinsurance premiums written for Other Reinsurance amounted to
over $180 million, an increase of 27.3% over 1995. The types of Other
Reinsurance OPL and OP Re provide include workers' compensation, property and
casualty and specialty reinsurance.
OPL reinsures workers' compensation insurance for employees of a UPS
subsidiary located in the State of California. The primary insurer is Liberty
Mutual Fire Insurance Company, an affiliate of the Liberty Mutual Group, which
was assigned a rating of A (excellent) by A. M. Best Company, Inc. OPL's
liability is limited to $500,000 per occurrence. In 1996, workers'
compensation reinsurance premiums written decreased $19.1 million primarily due
to a change in the program's coverage period and renewal date from May 1, 1997
to December 31, 1996.
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Overseas reinsures homeowners' insurance written by
Prudential Property and Casualty Co. in California, Oregon and Washington.
Overseas also reinsures worldwide coverage of commercial property underwritten
by Hannover Re and automobile extended warranties offered by American
International Specialty Lines Insurance Co. Overseas also participates in the
life policies underwritten by Equitable Variable Life and others through treaty
relationships with Lincoln National.
Four new reinsurance arrangements were added to Overseas
Other Reinsurance portfolio in 1996. A personal lines automobile property and
liability cover with Motors Insurance Corporation was added, which provides
reinsurance for automobiles insured in the State of New York. Overseas also
reinsured workers' compensation insurance underwritten by Associated Industries
Insurance Company, Inc. The existing program with Hannover Re covering
commercial property worldwide was renewed and expanded and a new program was
added where Overseas reinsures the credit performance of a portfolio of loans
made by the Bank of Boston which are secured by thinly or privately traded
stock.
All of the above companies were assigned, where available,
a rating of A- (excellent) to A++ (superior) by A. M. Best Company, Inc.
Information concerning reinsurance premiums written, earned
premiums and net underwriting income for the years ended 1996, 1995 and 1994
can be found in Overseas' Statement of Consolidated Income and in Note 9 in the
notes to the Financial Statements included in "Item 8 -- Financial Statements
and Supplementary Data".
Factors Affecting Overseas' Reinsurance Business
An important aspect of Overseas' Shippers' Risk reinsurance
business is that it does not expose Overseas in any material way to
unanticipated sources of liability because Overseas' liability is limited, like
the primary coverage, to the declared value of a lost or damaged package. In
its other lines of reinsurance, Overseas seeks highly predictable underwriting
results or purchases excess coverage that will limit losses to acceptable
amounts. The primary insurers whose business OPL reinsures are major
international insurance companies which are highly rated by leading analysts of
insurance companies and are unaffiliated with Overseas.
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Overseas expects to continue to participate in other areas
of reinsurance and will continue to offer reinsurance for risks if appropriate
opportunities arise. Overseas believes, however, that the Shippers' Risk
reinsurance described above, which contributed over 45.0% of Overseas' revenues
in 1996, will continue to be its largest source of revenue. There can be no
assurance that UPS or its subsidiaries will continue to offer the Shippers'
Risk insurance to its customers or continue to use workers' compensation
insurance arrangements for which Overseas provides reinsurance.
In common with industry practice, Overseas establishes
estimates of ultimate losses in connection with its reinsurance obligations and
periodically reviews those estimates. To date, Overseas has not experienced
any material adjustments to reserve estimates for prior periods. However, it
should be noted that Overseas' liability in respect of its reinsurance business
is subject to the effects of catastrophic events.
The Property and Casualty Reinsurance Industry and
Overseas' Position Therein
Property and casualty insurance companies provide
protection for insureds against the risks of damage or loss to property or
legal liability to third parties. In consideration of the payment of premiums
by the insureds, the insurance company provides the specified indemnity.
Usually, significant periods elapse between the receipt of premiums and the
payment of losses, during which time the insurance company invests the funds
held for the payment of losses. The insurance company's ability to achieve
earnings is thus based on the amount by which the total of its earned premiums
and investment income exceeds its provisions for losses and costs of
operations.
The international property and casualty insurance markets
are highly competitive, and in those markets, there are many insurance
companies, none of which dominates the industry. Competition has been
especially intense in the international reinsurance markets and as a result,
premium rates on certain reinsurance lines of business have fallen
significantly over the past two years. These markets have suffered in previous
years due to the high incidence of catastrophic events.
Treaty reinsurers rely on the underwriting standards of the
primary insurers which they select to reinsure and bear the risk of loss if the
primary insurer writes the insurance at inadequate prices. In addition, the
reinsurer is obligated to pay the primary insurer the amount at which claims
are settled by the primary insurer without participating in the settlement
process.
Most of Overseas' reinsurance agreements call for
reinsurance premiums and settlements to be paid in United States dollars. In
addition, its investments are primarily made in United States dollar
denominated securities. OPL and OP Re are exempt from Bermuda's currency
exchange controls. Their assets are located and their operations are conducted
in countries in which, in their opinion, the risks of expropriation are not
substantial.
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Regulation
Insurance companies are generally regulated by the
jurisdictions in which they operate. OPL and OP Re do not operate as insurance
companies within or subject to the insurance laws of any jurisdiction of the
United States or of any foreign jurisdiction other than the Islands of Bermuda.
OPL and OP Re are subject to regulation under Bermuda law
which, among other things, requires them to register and comply with certain
requirements as to capitalization. For purposes of Bermuda insurance law and
regulation, OPL and OP Re are considered to be engaged in both long-term
business and general business. The minimum paid up share capital required to
be maintained by OPL and OP Re under Bermuda insurance law and regulations is
$370,000. Moreover, OPL and OP Re must prepare an annual statutory financial
return and statutory financial statements in accordance with the requirements
of the Bermuda Insurance Act of 1978, amendments thereto and related
Regulations, and an annual audit is also required. Since OP Re was incorporated
at the end of 1995 the first statutory financial statements for OP Re were only
required at December 31, 1996.
In addition, OPL and OP Re are individually required to
maintain a minimum solvency margin at least equal to $250,000 plus the greater
of: (i) the aggregate of $1.2 million and 15% of the amount by which net
premium income from general business exceeds $6 million; or (ii) 15% of the
aggregate of loss expense provisions and other general business insurance
reserves. As of December 31, 1996, OPL and OP Re had more than $1.4 billion
and $480 million, respectively, of statutory capital and surplus in excess of
these requirements.
Bermuda insurance law and regulations do not limit the
categories of assets in which an insurance company may invest. However,
certain categories of assets, such as unquoted equities, investments in and
advances to affiliates, real estate and collateral loans, are not "relevant
assets" for purposes of complying with the minimum liquidity ratio with respect
to OPL's and OP Re's general business activities. The exclusion of these
types of assets from the definition of relevant assets does not materially
affect their ability to satisfy the minimum liquidity ratio. OPL met these
requirements for the years ended December 31, 1996, 1995 and 1994, and OP Re
met these requirements for the year ended December 31, 1996.
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Although the extent of regulation varies among
jurisdictions within the United States, an insurance company doing business in
the United States must comply with a more extensive array of laws and
regulations than do OPL and OP Re. In the United States, insurers and their
agents usually must be licensed, and the policy forms used by an insurer
usually must be approved. Laws and regulations in most states also govern
rates, solvency and standards of business conduct. Most United States
jurisdictions require insurance companies to file detailed annual financial
statements with supervisory agencies, and their operations and accounts are
subject to examination by such agencies. Such jurisdictions also regulate the
form and content of statutory financial statements and the type and
concentration of investments. Furthermore, most states and the District of
Columbia require insurance companies to support guaranty associations, which
are organized to pay claims against insolvent insurance companies. Finally,
state regulated property and casualty insurers are required to participate in
assigned risk pools to write coverages on risks not acceptable under normal
underwriting standards.
Because OPL and OP Re conduct their businesses as
reinsurers in Bermuda, they are not subject to the insurance regulatory
requirements of jurisdictions other than Bermuda. However, the statutory
accounting standards adopted by the jurisdictions which regulate the companies
to which OPL and OP Re provide life, property and casualty and other
reinsurance indirectly affect OPL and OP Re. OPL and OP Re record such
transactions on their statutory accounts in a manner which complies with
statutory accounting principles applicable to the reinsured company.
In connection with OPL's reinsurance activities, Lincoln
National Intermediaries, Inc. ("LNII"), an unaffiliated United States based
company, provides insurance underwriting advisory services, primarily with
regard to life reinsurance, pursuant to an Insurance Underwriting Adviser
Agreement entered into in 1992.
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LEASING, REAL ESTATE & HOTEL ACTIVITIES
OPCC is engaged in the leasing, real estate & hotel
businesses and has offices in Bermuda and the United States. OPCC continued to
expand its operations in 1996, and maintains its United States headquarters in
Atlanta, Georgia to assist in the management of its business affairs. OPCC's
leasing, real estate & hotel assets exceeded $1.3 billion at December 31, 1996,
a growth of approximately 84% over 1995 levels.
In a finance lease transaction held in partnership with
GATX Capital, OPCC purchased a 50% interest in 493 hopper rail cars ("Hopper
Cars") and the lease thereon in 1993, for a purchase price of approximately
$4.5 million in cash and the assumption of a proportionate amount of
non-recourse indebtedness of approximately $606,000, which amount was paid off
in 1994. The Hopper Cars are currently leased to Bessemer & Lake Erie Railroad
Company ("Bessemer & Lake Erie"). The lease expires in 2001 and annual rentals
under the lease are approximately $909,000.
In another finance lease transaction in 1994, OPCC
purchased all of the limited partnership interests, and all stock of the
corporate general partner, of KMS II Realty Limited Partnership, a Delaware
Limited Partnership ("KMS II"). KMS II owns a 1.5 million square foot regional
distribution facility in Manteno, Illinois (the "KMart Facility"), which it
leases to KMart Corporation. OPCC purchased the interests in KMS II for
approximately $6.7 million in cash and the assumption of approximately $40.3
million in non-recourse debt, which was approximately $36.4 million as of
December 31, 1996. The initial term of the KMart lease expires in 2020 and
yearly lease payments are approximately $4.2 million. After the initial term,
KMart has the option to extend the lease for ten consecutive terms of five
years each. KMart has the option to purchase the KMart Facility at the end of
the initial term of the lease for a price equal to the fair market value of the
KMart Facility on that date.
OPCC leases to UPS five Boeing 757 air package freighters
and a 435,000 square foot facility located on approximately 39 acres of land in
Mahwah, New Jersey (the "Ramapo Ridge Facility"), which UPS is using as a data
processing, telecommunications and operations facility.
The five Boeing 757 aircraft were delivered to OPCC in 1990
pursuant to a purchase agreement with the manufacturer which had been assigned
for fair market value by UPS to OPCC in 1989. The aircraft are leased to a UPS
subsidiary for a term ending in 2012.
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United Parcel Service Co. ("UPS Co."), a certificated air
carrier subsidiary of UPS, is responsible for all ground facilities, certain
aircraft maintenance, and air transportation safety and standards for all of
the aircraft leased from OPCC. OPCC is responsible, at its own expense, for the
performance of certain periodic heavy maintenance. The payments due under the
lease are then adjusted every three years to reflect the actual maintenance
costs, so that OPCC receives the same net economic return over the life of the
lease, and each year the payments for maintenance costs are adjusted to reflect
increases or decreases in the inflation rate (as measured by the United States
Gross National Product Implicit Price Deflator). Additionally, OPCC is
responsible for the payment of all costs over $50,000 of corrective work
undertaken to comply with FAA Airworthiness Directives and mandatory notes and
bulletins. OPCC also pays the cost of insurance for each of the aircraft.
In 1991, the Ramapo Ridge Facility (the "Facility") was
completed and placed in operation by UPS. The Facility is leased to United
Parcel Service General Services Co. ("GSC"), a subsidiary of UPS, and the
initial term of the lease expires in 2019. OPCC is responsible, at its own
cost and expense, for the maintenance of the grounds on which the Facility is
located and of the outside walls, roof and structural components of all
buildings comprising the Facility. GSC is responsible for all other
maintenance at the Facility. OPCC is responsible, at its own expense, for
maintaining insurance on the Facility and certain types of liability insurance.
OPCC completed construction on an addition to the Ramapo
Ridge Facility in 1995. The project scope included the construction of a
27,000 square foot addition with space available for future expansions of up to
54,000 square feet. GSC began operations on the addition during the first
quarter of 1996. The financing of the Ramapo Ridge Facility appears in "Item 2
- -- Properties."
Rent on the five Boeing 757 aircraft and the Ramapo Ridge
Facility has a fixed component and a variable component, based on the extent to
which the assets are utilized by UPS's subsidiaries. The total rent from
aircraft leases between OPCC and UPS Co. in 1994, 1995 and 1996 was $24.6
million, $24.1 million and $23.3 million, and the total rent from the Facility
lease in 1994, 1995 and 1996 was $15.3 million, $16.3 million and $20.0
million. The fixed and variable components of the aircraft leases and Ramapo
Ridge Facility lease for 1996 are set forth below. For further information
regarding the fixed component of rent see Note 5 to the Consolidated Financial
Statements included in "Item 8 -- Financial Statements and Supplementary Data."
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<TABLE>
<CAPTION>
1996 Lease Revenues
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(amounts in millions)
Fixed Variable
Component Component
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<S> <C> <C>
Aircraft $17.1 $ 6.2
Facility $ 7.3 $12.7
</TABLE>
For further information concerning the acquisition and
lease of the aircraft and the Ramapo Ridge Facility see "Item 13 -- Certain
Relationships and Related Transactions."
The acquisition of the Boeing 757 aircraft and the Ramapo
Ridge Facility were financed by two series of privately-placed, fixed rate,
non-callable bonds issued by OPL Funding Corp. ("OPL Funding"), a United States
special purpose subsidiary of OPCC incorporated in Delaware. One series, in
the principal amount of $171.6 million, is due in 2012; the other, in the
principal amount of $73.4 million, is due in 2019. The fixed component of the
rentals for these assets has been irrevocably assigned to OPL Funding and is
used by it to collateralize a portion of the obligation on the bonds. The
principal of these bonds is guaranteed by Overseas Partners Credit, Inc.
("Overseas Credit"), another special purpose subsidiary of OPL incorporated in
the Cayman Islands. Overseas Credit's obligations are secured by zero coupon
U.S. Treasury bonds owned by it and pledged as security to the Trustee for the
bondholders. On or prior to the scheduled maturity date of each series of
bonds, the zero coupon U.S. Treasury bonds will mature in amounts equal to or
exceeding the principal amount of the bonds in that series. In connection with
the foregoing, OPCC pledged its interest in the aircraft and the facility and
the related leases to OPL Funding, which in turn pledged its interest therein
to further secure the bonds.
Effective December 31, 1993, OPCC acquired the Marriott
Copley Place Hotel in Boston, Massachusetts (the "Hotel"). This is a full
service, luxury, convention hotel with 1,139 rooms and 44,000 square feet of
meeting and convention space. In 1996, the existing indebtedness on the Hotel
was refinanced with a 10-year, non-recourse loan in a principal amount of $110
million with Metropolitan Life Insurance Company which was approximately $109.3
million as of December 31, 1996.
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On November 15, 1995, OPCC acquired One Buckhead Plaza
("OBP"), a 20-story office and specialty retail tower located in the heart of
Buckhead, the geographic center of Atlanta, Georgia. OBP is approximately 96%
leased. The purchase price has been allocated to the various asset categories,
following an independent appraisal. OPCC also has a purchase option on
adjacent tracts of land totaling almost 14 acres for five years and a right of
first refusal for ten years. The OBP purchase was financed, in part, with a
$35 million, 10-year, non-recourse loan with Metropolitan Life Insurance
Company which was approximately $34.5 million as of December 31, 1996.
During 1996, OPCC acquired three (3) additional real estate
assets:
Acquired August 30, 1996, the Atlanta Financial Center is a
three-tower office complex in Atlanta's prestigious Buckhead community with
over 885,000 square feet of rentable office space and a nine-level parking
structure. The complex is currently 96% leased to a variety of tenants. Some
of Atlanta's prominent retail and hotel facilities are within easy walking
distance and easy access to primary roadways is nearby. Indebtedness of this
property is a $79.9 million, 10-year, non-recourse loan with New York Life
which was approximately $79.7 million as of December 31, 1996.
In December 1996, OPCC, through a subsidiary, acquired 333
West Wacker Drive situated in the heart of Chicago's West Loop. This 36-story
tower with 826,632 square feet is a defining feature of the Chicago skyline.
The curved facade of the building and green tint curtainwall have earned the
property numerous awards. The property was over 90% leased at the time of
purchase. It was acquired for cash although OPCC intends to finance the
property in 1997.
Also in December 1996, OPCC purchased a two-third
partnership interest in a regional retail and office complex, Copley Place,
located in the Back Bay area of Boston. The four seven-story towers have
368,894 square feet of retail space beneath four office towers with a total of
842,460 square feet and two parking garages. The retail and office space were
99% and 92% occupied at the time of acquisition. The property is currently
subject to non-recourse mortgage indebtedness to Aetna Casualty and Surety
Company in the amount of $210 million as of December 31, 1996, including
accrued but deferred interest. Under the terms of the mortgage loan, cash flow
from the Property is required to be escrowed in a separate account to be used
for capital and leasing requirements. Any excess in the escrow account above
certain limits is required to be paid over to the lender in reduction of the
outstanding accrued but deferred interest. The mortgage loan also requires
that payment of management fees to related parties be fully subordinated to the
mortgage debt. The mortgage loan also provides that in the event of prepayment
before maturity, certain yield maintenance payments become due to the lender
and provides for the possible payment of contingent equity, determined by
formula, to the lender upon the sale or refinancing of the Property. Under the
terms of the operating agreement for Copley Place Associates, LLC, JMB
(one-third partner) has agreed to put OPCC in the same economic and cash flow
position it would have been in had the foregoing provisions of the mortgage
loan not been in effect. OPCC expects to refinance the property in 1997.
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Revenues for the leasing and real estate business (which
includes the hotel) constituted 17.8%, 17.0% and 22.1% of OPL's consolidated
revenues in 1996, 1995 and 1994. Information regarding leasing and real estate
operating income for the years ended 1996, 1995 and 1994 is set forth in
Overseas' Statement of Consolidated Income and in Note 9 to the notes to the
Consolidated Financial Statements included in "Item 8 - Financial Statement and
Supplementary Data".
Leasing and Real Estate Industry
The leasing industry offers users an alternative to the
purchase of nearly every type of property and equipment, with varying payment
conditions, depending on the type of property and the nature of the user.
Depending upon the extent and segment of the leasing market OPCC determines to
enter, OPCC may become subject to intense competition. Manufacturers and other
leasing companies may provide certain ancillary services which OPCC cannot
offer or may offer lease terms which OPCC is unwilling to offer. In addition,
in the aircraft leasing industry, there are numerous other entities which lease
aircraft, including distributors, manufacturers, airlines, equipment managers,
leasing companies, financial institutions and public and private limited
partnerships, some of which have greater financial resources and more
experience than OPCC. Demand for leasing also depends upon the availability of
and terms by which the acquisition of property can be financed through other
means.
The commercial real estate industry offers an interested
purchaser a wide array of opportunities depending on the location and type of
property they are interested in. OPCC's credit standing and today's attractive
interest rates permit OPCC to approach numerous sources for competitive
financing. As with many industries affected by market trends, depending on
market conditions and the property type OPCC chooses to acquire or dispose of,
OPCC may become subject to strong competition when demonstrating an interest in
a property or risk devaluation of real estate held if the market takes a sudden
turn downward. In consideration of the foregoing, OPCC, through in-house
personnel and outside consultants, monitors the real estate market closely to
ensure that all acquisitions continue to meet OPCC's investment criteria.
Regulation
The Federal Aviation Administration ("FAA") regulates air
transportation services, but does not directly regulate the leasing business of
OPCC. The FAA's authority relates primarily to safety aspects of air
transportation, including aircraft standards and maintenance, personnel and
ground facilities. Thus, in connection with OPCC's aircraft leases, the FAA
regulates the lessee of the aircraft but not the lease itself. Similarly,
where maintenance is provided under a contract, the maintenance provider must
be certified by the FAA. All aircraft leased by OPCC are leased to a certified
air carrier.
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INVESTMENTS AND INVESTMENT POLICY
OPL's investment policies are designed to achieve high
levels of total return while maintaining liquidity and preserving principal.
OPL primarily invests in highly liquid debt securities of investment grade
standard such as governments, government agencies, financial institutions and
utilities in its fixed income portfolio and in stocks drawn mainly from within
the S&P 500 Index for its equity portfolio as determined by one or more
recognized ratings agencies or our investment managers. In November 1995, OPL
took steps to increase the diversification of its investments and restructured
its portfolio across a broader range of asset classes that included both fixed
income and equity securities. OPL's investments are managed by unaffiliated
investment managers based in London as follows: NatWest Investment Management
Ltd., Morgan Grenfell International Funds Management Ltd., Wells Fargo Nikko
Investment Advisors Ltd., BankAmerica Trust Company (Jersey) Ltd., IBJ
International plc, Bermuda Asset Management Ltd., HSBC Asset Management Bahamas
Ltd., State Street Global Advisors U.K. Ltd. and AON Advisors (U.K.) Ltd.
OPL has standardized investment management agreements an
example of which is attached as Exhibit 10(hh). All managed portfolios are held
in custody by State Street Trust Company Canada.
OPL's investment portfolio as of December 31, 1996,
consisted of the following (000's omitted):
<TABLE>
<CAPTION>
COST VALUE AMOUNT
SHOWN IN
BALANCE
SHEET
---------------------------------------------------------
<S> <C> <C> <C>
FIXED MATURITIES:
Bonds
U.S. Government and government agencies
and authorities (including Tresury notes) $233,028 $249,031 $230,641
Foreign governments 41,656 41,873 41,873
All other corporate bonds 311,926 311,170 311,170
---------------------------------------------------------
TOTAL FIXED MATURITIES 586,610 602,074 583,683
---------------------------------------------------------
EQUITY SECURITIES
Common Stocks
Public utilities 53,818 57,716 57,716
Banks, trust and insurance companies 119,263 146,647 146,641
Industrial, miscellaneous and all other 549,294 665,186 665,186
---------------------------------------------------------
TOTAL EQUITY SECURITIES 722,375 869,549 869,549
---------------------------------------------------------
---------------------------------------------------------
SHORT TERM INVESTMENTS 25,333 25,452 25,452
---------------------------------------------------------
=========================================================
TOTAL INVESTMENTS $1,334,318 $1,497,075 $1,478,685
=========================================================
</TABLE>
12
<PAGE> 14
All investments, except for certain U.S. Treasury notes,
are recorded at fair value with any change in unrealized gains and losses
included in net income. Certain U.S. Treasury Notes classified as
held-to-maturity securities are carried at amortized cost, as OPL has the
ability and intent to hold them to maturity.
Effective December 31, 1995, Overseas adopted FASB's Guide
to Implementation of Statement 115 on Accounting for Certain Investments in
Debt and Equity Securities and reclassified its available-for-sale securities
as trading securities. Trading securities are carried at fair value.
Available-for-sale securities were carried at fair value, with unrealized gains
and losses, net of applicable income taxes, excluded from net income and
reported as a separate component of members' equity.
For a further discussion of investment results, see "Item 7
- --Management's Discussion and Analysis of Financial Conditions and Results of
Operations," and Note 3 in notes to the Consolidated Financial Statements
included in "Item 8 -- Financial Statements and Supplementary Data."
TAXATION
OPL is incorporated under the laws of the Islands of
Bermuda and does not consider itself to be engaged in a trade or business in
the United States and, therefore, does not expect to be subject to U.S. income
taxes. Certain of OPL's subsidiaries engage in business in the United States,
primarily OPCC, and as a result it, but not OPL, is subject to U.S. income
taxes. Under current Bermuda law, OPL is not obligated to pay any tax in
Bermuda based upon income or capital gains.
Agents for the United States Internal Revenue Service (the
"IRS") have asserted that OPL is subject to U.S. taxation and have proposed an
assessment of approximately $293 million of tax for the years 1984 through
1987, plus penalties and interest. The IRS has issued a Notice of Deficiency
for 1984 which OPL is contesting through litigation. OPL has filed a Protest
against the proposed assessment with the Appellate Division of the IRS with
respect to the years 1985 through 1987. The IRS has not proposed assessments
for years subsequent to 1987. However, pending resolution of the matter, the
IRS may take similar positions for all subsequent years. OPL believes that it
has no tax liability, that it is not subject to U.S. taxation, and that there
is substantial authority for its position. It will vigorously contest any
assessment.
13
<PAGE> 15
OPL and its subsidiaries, other than OPCC and its
subsidiaries, conduct, and intend to conduct their activities so that they will
not do business in the United States or otherwise cause any portion of their
undistributed earnings and profits to be subject to United States federal and
state taxation of income under present law. If OPL were, nevertheless,
determined to be engaged in business in the United States, it would be subject
to United States corporate taxes on income considered to be derived from that
portion of its trade or business deemed to be conducted in the United States.
Various provisions of the Internal Revenue Code of 1986
(the "Code") provide for current taxation at the shareholder level of certain
kinds of income earned by foreign enterprises owned in whole or part by United
States residents. Among such provisions are those in Subpart F of the Code,
concerned with "controlled foreign corporations," and those concerned with
"passive foreign investment companies." If OPL were to be subject to one or
more of these provisions, some or all, depending upon the applicable
provisions, of the United States shareowners of OPL would be liable for federal
income taxes with respect to certain of the earnings of OPL, whether or not an
amount equal to such earnings was distributed to such shareowners as a
dividend. Such liability is referred to herein as "current taxation."
Under Subpart F of the Code, the United States shareowners
of OPL would be subject to current taxation on income of OPL derived from
insuring or reinsuring the risks of its United States shareowners and persons
related thereto, but only if (i) such insured or reinsured United States
shareowners and related persons were to own at least 20% of the common stock of
OPL and (ii) such income from the insurance or reinsurance of the risks of its
United States shareowners and related persons were to represent at least 20% of
OPL's reinsurance income. The reinsurance underwritten by OPL does not now
exceed these limits and management does not expect that these limits will be
exceeded in the future. Furthermore, any United States person owning directly
or indirectly 10% of the common stock of OPL (a "United States 10%
Shareholder") would be subject to current taxation on their proportionate share
of the Subpart F insurance income of OPL if United States 10% Shareholders were
to own, in the aggregate, more than 25% of the common stock of OPL. Finally, a
United States 10% Shareholder would be subject to current taxation on his
proportionate share of all Subpart F income of OPL, and of certain other items,
if United States 10% Shareholders were to own, in the aggregate, more than 50%
of the common stock of OPL. OPL does not believe that any OPL shareholder is
currently subject to any of the tax provisions described in this paragraph.
Under the passive foreign investment company rules, all
United States shareowners of OPL would be subject to rules designed to
approximate current taxation of the earnings of OPL if at least 75% of the
gross income of OPL were "passive income," or if at least 50% by value of the
average assets of OPL were to produce, or were held for the production of,
"passive income." Except as may be provided in future regulations promulgated
by the Secretary of the Treasury, income derived by OPL in the active conduct
of its reinsurance business does not constitute "passive income," and assets
held by OPL that produce solely or are held solely for the production of such
income do not constitute "passive assets". Further, under the Subsidiary
Look-Through Rules, because OPL owns 100% of the stock of OPCC, OPL is treated
as if it held the assets of OPCC and received directly the income of OPCC
earned from those assets. Consistent with OPL's income from its reinsurance
business, however, the income derived by
14
<PAGE> 16
OPCC in the active conduct of its real estate, leasing and hotel business does
not constitute "passive income", and assets held by OPCC that produce solely or
are held solely for the production of such income do not constitute "passive
assets".
It should be noted that Congress has historically sought to
broaden the taxation of foreign enterprises owned by United States residents,
and future legislation could affect the United States federal tax treatment of
OPL and its shareowners.
There is imposed on foreign insurers a United States
federal excise tax on the reinsurance of United States risks equal to 1% of the
reinsurance premiums, payable by the United States company ceding the
reinsurance. Under OPL's reinsurance agreements, OPL reimburses the ceding
company for such tax, as well as for premium taxes payable under state law, if
any.
Bermuda does not have a corporate income tax or a tax on
insurance premiums.
EMPLOYEES
Overseas has 11 employees in Bermuda and 13 employees in
Atlanta.
The Company purchases administrative and other services
from a number of suppliers both in the United States and Bermuda. The
individuals who provide these outsourced services are not included as
employees.
See "Item 10 - Directors and Executive Officers of the
Registrant" below. Directors and officers of OPL's subsidiaries are generally
also officers of OPL except where local or independent directors are required
or desirable under local laws or for other legal reasons.
15
<PAGE> 17
EXECUTIVE OFFICERS
Listed below is certain information relating to the
executive officers of OPL.
<TABLE>
<CAPTION>
Name Age Officers
- ----------------------------- --- ---------------------------------------------------------
<S> <C> <C>
Bruce M. Barone 48 President and Chief Executive Officer
Thomas E. Butler 52 Vice President and Secretary
Leopold A. Schmidt 53 Vice President and Treasurer
</TABLE>
Mr. Barone has been President and Chief Executive Officer
of Overseas since December 20, 1995. Previously, he served as Senior Vice
President and Chief Operating Officer since 1991, and as Vice President and a
member of the Executive Committee since before 1990. Mr. Barone has been
associated with Overseas since its incorporation in 1983. He became a
full-time employee of Overseas on January 1, 1995. Previously, he was Vice
President - Financial Planning of United Parcel Service of America, Inc. since
before 1990. He holds an MBA from the Graduate school of Business of Columbia
University and is a Certified Public Accountant.
Mr. Butler serves as Vice President and Secretary of OPL.
Mr. Butler has served as Vice President since June 1990 and Secretary of OPL
since August 1994. Mr. Butler also served as Vice President-Law and Secretary
of OPCC since 1995 as well as a director. Prior to his Overseas service, Mr.
Butler was a member of the UPS Legal Department since before 1990.
Mr. Schmidt serves as Vice President and Treasurer of OPL.
He also serves as Vice President-Finance and director of OPCC. Prior to Mr.
Schmidt's Overseas duties, he was a member of the UPS Financial Planning
Department since before 1990.
The executive officers of Overseas serve at the pleasure of
the Board of Directors.
16
<PAGE> 18
Item 2. Properties
The Marriott Copley Place Hotel (the "Hotel") is a 38-story
full-service, luxury, convention hotel located in the prominent Back Bay
section of Boston, Massachusetts. The Hotel is owned by Marriott Urban Boston
Venture, a Massachusetts general partnership, all of whose partnership
interests are owned by OPCC and Overseas Partners Capital (Massachusetts),
Inc., OPCC's wholly owned subsidiary. The Hotel has 1,139 guest rooms, 44,000
square feet of meeting and convention facilities (including the largest hotel
exhibit hall in Boston), three restaurants, a gift shop and concierge level and
a parking garage that can accommodate 265 automobiles.
The KMart Facility consists of an approximately 1.5 million
square foot warehouse building, including parking areas and drives, located on
approximately 113 acres of land in Manteno, Illinois. In addition, OPCC also
owns a 50% interest in 493 Hopper Cars. This rolling stock is leased to
Bessemer & Lake Erie Railroad Company and is used to transport a wide variety
of commodities, primarily coal.
Sitting on 39 acres in Mahwah, New Jersey, OPCC owns and
maintains a 435,000 square foot facility which has been leased to UPS through
2019. This facility, known as Ramapo Ridge, is being used by a UPS subsidiary
as a data processing, telecommunications and operations facility. The entire
facility consists of an office building, computer center, a central service
structure and a parking garage with an area of approximately 562,000 square
feet. UPS has an option to purchase the Ramapo Ridge Facility at the end of
the lease term. It also has an option to purchase the land, but not the
buildings, from OPCC in 2050. OPCC recently completed construction of a 27,000
square foot addition to the Ramapo Ridge Facility which accommodates future
expansions of up to 54,000 square feet. See "Item 13 -- Certain Relationships
and Related Transactions."
OPCC owns five Boeing 757 aircraft which have been leased
to UPS for a term ending in 2012. See "Item 13 -- Certain Relationships and
Related Transactions."
OPCC purchased One Buckhead Plaza ("OBP") in November 1995.
OBP is a 20-story office and specialty retail tower located in the heart of
Buckhead, a prestigious business and residential community of Atlanta, Georgia.
The building has 400,000 square feet of rentable office space, 40,000 square
feet of rentable retail space, 1,229 parking spaces and 14,000 square feet of
storage. It is approximately 96% leased and has generated operating income of
nearly $5.0 million since its acquisition.
17
<PAGE> 19
OPCC acquired the Atlanta Financial Center on August 30,
1996. The complex is currently 96% leased to a variety of high quality firms.
Some of Atlanta's prominent retail and hotel facilities are within easy walking
distance and easy access to primary roadways is nearby. This office building
has over 885,000 square feet of rentable office space and includes a nine level
parking structure.
In December 1996, OPCC acquired 333 West Wacker Drive
situated in the heart of Chicago's West Loop in the downtown market. This
36-story tower with 826,632 square feet is a defining feature of the Chicago
skyline. The property was over 90% leased at the time of purchase and is
occupied by a nationally known single tenant and multitenants.
Also in December 1996, OPCC purchased a two-third
partnership interest in a regional retail and office complex, Copley Place,
located in the Back Bay area of Boston, Massachusetts. The four seven-story
towers, adjacent to the Marriott Hotel have 368,894 square feet of retail
space developed beneath four office towers with a total of 842,460 square feet
and two parking garages. The retail and office space were 99% and 92% occupied
at the time of acquisition. The space is occupied by strong creditworthy
tenants and retailers.
The Boeing 757 aircraft and the related lease are subject
to a security interest, the Ramapo Ridge Facility, the related lease, certain
buildings and the Hotel are subject to mortgages. See "Item 1 -- Business --
Leasing & Real Estate Activities."
Item 3. Legal Proceedings
OPL was subject to a tax audit by the United States
Internal Revenue Service for the years 1984 through 1987. Information
regarding the tax audit is incorporated herein by reference from Note 2 of the
Notes to Consolidated Financial Statements. See "Item 8 -- Financial
Statements and Supplementing Data" below. See also "Item 1 -- Taxation".
Item 4. Submission of Matters to a Vote of Security Holders
No matters were submitted to a vote of security holders
during the quarter ended December 31, 1996.
18
<PAGE> 20
PART II
Item 5. Market for the Registrant's
Common Equity and Related Stockholder Matters
(a) OPL Common Stock
OPL is authorized to issue 900,000,000 shares of Capital
Stock, $.10 par value per share ("Common Stock"), of which 135,000,000 were
issued and outstanding as of February 28, 1997. It is also authorized to issue
200,000,000 shares of Preference Stock, $.10 par value per share. At present
no shares of Preference Stock have been issued or are outstanding nor are there
any plans to issue any such shares.
Each share of Common Stock is entitled to one vote in the
election of directors and other matters except that any "Substantial
Shareholder," as defined in OPL's Bye-Laws, is entitled to only one
one-hundredth of a vote with respect to each share held by such shareholder
which is in excess of 10 percent of OPL's outstanding voting stock. The term
Substantial Shareholder is defined to mean any shareholder, other than UPS or
any employee benefit plan of OPL or UPS, who is the beneficial owner of more
than 10 percent of the voting power of the outstanding shares of OPL entitled
to vote generally in the election of directors. There are no limitations
imposed by foreign law, or by OPL's Memorandum of Association and Bye-Laws, or
by any agreement or other instrument to which OPL is a party or to which it is
subject, on the right of shareowners, solely by reason of their citizenship or
domicile, to vote Common Stock. Owners of Common Stock are entitled to receive
ratably such dividends as are declared by the Board of Directors. Upon
liquidation, OPL's shareowners are entitled to share on a pro rata basis in the
assets of OPL legally available for distribution to shareowners.
(b) Market for OPL's Common Stock
OPL's Common Stock is not listed on a securities exchange
and is not sold in the organized over-the-counter markets. Prior to August
7, 1996, UPS was the principal purchaser of shares of Common Stock. Common
Stock purchased by UPS was used primarily for awards to employees under its
stock-based employee compensation plans and purchases by its employees or has
been sold to OPL and constructively retired. Since August 7, 1996, OPL has
assumed responsibility for stock purchases under the Company's Bye-Laws.
19
<PAGE> 21
OPL's Bye-Laws provide that no outstanding shares of Common Stock
may be transferred, except by a bona fide gift or inheritance, unless such
shares shall have first been offered, by written notice, for sale to OPL at the
lower of their net book value or the price at which they are to be offered to
the proposed transferee and on the same terms upon which they are to be offered
to the proposed transferee. Notices of proposed transfers must be sent to the
Treasurer of OPL, must set forth the number of shares proposed to be sold, the
proposed price per share, the name and address of the proposed transferee, the
terms of the proposed sale and must contain a statement by the proposed
transferee that the information contained in the notice is true and correct.
OPL has the option, within 30 days after receipt of the notice, to purchase all
or a portion of the shares. If OPL chooses to exercise its right of first
refusal with respect to only a portion of the shares designated for sale, the
shareowner may sell the remaining portion of such shares for the price and on
the terms described in the notice. If OPL fails to exercise or waives the
option, the shareowner may, within a period of 20 days thereafter, sell to the
proposed transferee all, but not part, of the shares which were previously
offered to OPL, and not purchased by it pursuant to its option, for the price
and on the terms described in the notice. All transferees of shares hold their
shares subject to the same restrictions. Shares previously offered to OPL but
not transferred within the 20 day period remain subject to the initial
restrictions. Shares of Common Stock may be pledged but they may not be
transferred upon foreclosure unless they have first been offered to OPL in the
manner described above.
OPL also has the right under its Bye-Laws to purchase
shares of Common Stock distributed as incentive awards (including awards under
the UPS Managers Incentive Plan and shares distributed pursuant to certain UPS
Stock Option Plans) to employees of UPS and its subsidiaries following the
recipient's retirement, death or other termination of employment. OPL may
exercise this right to purchase all or a portion of such shares of a former
employee at any time within a period of three years following such termination
(if the shareowner owns less than 500 shares of UPS's common stock) or thirteen
years (if the shareowner owns 500 or more shares of UPS's common stock). The
purchase price will be the net book value of the shares at the time of purchase
as described below. Any transferee of shares of Common Stock owned by
recipients of incentive awards of OPL shares will hold the shares subject to
this right of purchase by OPL.
OPL also has a right to repurchase shares of Common Stock
sold by UPS prior to August 7,1996, in a continuing offering of UPS and OPL's
shares, which commenced in June of 1986. This repurchase right, which is
contained in the Subscription Agreement executed by each purchaser in that
offering, is similar to the right which OPL has to repurchase shares
distributed as incentive awards.
Under OPL's Bye-Laws, OPL has the right to purchase shares
of Common Stock which may be issued as stock dividends, or in stock splits,
recapitalizations or reorganizations of OPL similar to the rights that it has
to purchase the shares on which the dividend, split, recapitalization or
reorganization shares were issued. OPL also has the right to purchase Common
Stock in a number of other circumstances under OPL's Bye-Laws.
20
<PAGE> 22
Although UPS and OPL, each individually, has indicated that
they intend to continue their policies of purchasing shares of Common Stock,
there can be no assurance of the continuation of that policy. The feasibility
of purchases is subject to continued maintenance by UPS and OPL, each
individually, of satisfactory earnings and financial condition and UPS's need
for OPL shares for awards under its compensation plans.
For the purposes of fixing the price at which OPL will
purchase shares of Common Stock upon exercise of its rights described above,
book value per share is determined from OPL's audited balance sheet as reported
in its most recently published Annual Report to Shareowners and mailed to its
shareowners or otherwise generally made available. Book value per share since
January 11,1994 has been as follows:
<TABLE>
<CAPTION>
Date Price
------------ -----
<S> <C>
January 11, 1994 to January 8, 1995 $ 8.80
January 9, 1995 to January 8, 1996 $ 9.88
January 9, 1996 to January 8, 1997 $ 12.00
</TABLE>
On January 9, 1997, OPL announced that according to OPL's
most recent audited balance sheet, book value per share was $14.24. Under the
Bye-Laws, OPL has the rights to purchase its shares at $14.24 per share.
As of December 31, 1993, UPS held 1,519,775 shares of
Common Stock. From January 1 to January 10, 1994, UPS purchased 5,355 shares
of Common Stock at a price of $7.40 per share. From January 11 to February 28,
1994, UPS purchased 5,768,631 shares of Common Stock and sold 362,081 shares to
eligible employees pursuant to its continuous offering of UPS and OPL shares at
a price of $8.80 per share. UPS distributed 1,604,901 shares pursuant to the
Managers Incentive Plan in February 1994. Effective February 11, 1994, OPL
purchased 4 million shares from UPS at $8.80 per share and constructively
retired them.
From March 1, 1994 to January 9, 1995, UPS purchased
1,077,260 shares of Common Stock and sold 1,286,963 shares to eligible
employees pursuant to its continuous offering of UPS and OPL shares at a price
of $8.80 per share. From January 10, 1995 to February 28, 1995, UPS purchased
4,826,482 shares of Common Stock at a price of $9.88 per share and sold 199,084
shares to eligible employees pursuant to its continuous offering of UPS and OPL
shares. In February 1995 UPS distributed 1,645,602 shares pursuant to awards
under the Managers Incentive Plan. On February 17, 1995, OPL purchased from
UPS 3 million shares of Common Stock at $9.88 per share. As of February 28,
1995, UPS held 1,098,872 shares of Common Stock.
21
<PAGE> 23
From March 1, 1995 to January 8, 1996, UPS purchased
1,282,427 shares of Common Stock at a price of $9.88 per share and sold
2,083,492 shares to eligible employees pursuant to its continuous offering of
UPS and Overseas shares. Between January 9, 1996 and February 29, 1996 UPS
purchased 5,970,983 shares of Common Stock at a price of $12.00 per share and
sold 340,497 shares to eligible employees pursuant to its continuous offering
of UPS and Overseas shares. In January 1996, UPS distributed 1,594,762 shares
pursuant to awards under the Managers Incentive Plan. As of February 29, 1996,
UPS held 4,333,531 shares of Common Stock.
From March 1, 1996 to August 7, 1996, UPS purchased
814,034 shares of Common Stock at a price of $12.00 per share and sold
3,408,147 shares to eligible employees pursuant to its continuous offering of
UPS and Overseas shares. On September 26, 1996, OPL purchased from UPS one
million shares of Common Stock at $12.00 per share. Between January 9, 1997 and
February 28, 1997 UPS sold 279,639 shares of Common Stock at a price of $14.24
per share. As of February 28, 1997, UPS held 459,779 shares of Common Stock.
Since August 7,1996, OPL has assumed responsibility for
stock purchases under the Company's Bye-Laws. From August 7, 1996 to January
8, 1997, OPL purchased 587,178 shares of Common Stock at a price of $12.00 per
share. From January 9, 1997 to February 28, 1997, OPL purchased 5,520,015
shares of Common Stock at a price of $14.24 per share and sold 1,583,792 shares
pursuant to awards under the UPS Managers Incentive Plan. As of February 28,
1997, OPL held 4,523,401 shares of Common Stock in Treasury.
There were approximately 73,000 holders of Common Stock as
of February 28, 1997.
(c) Dividend Policy
Declarations of dividends are at the discretion of the
Board of Directors in light of all relevant facts, including general business
conditions and OPL's earnings and capital requirements. It is the intent of
the Board to consider the payment of an annual dividend in an amount to be
determined on the basis of OPL's earnings, financial condition and capital
needs. OPL declared and paid cash dividends in 1996, 1995 and 1994 of $0.72,
$0.60 and $0.48 per share, respectively.
Dividends paid by OPL on shares of Common Stock to persons
residing in the United States will be subject to United States federal income
taxes to the same extent that such dividends would be taxable to such persons
if paid by a domestic corporation, but without the dividend received deduction
available to corporations. Similar treatment is likely to be accorded under
applicable state law.
22
<PAGE> 24
There are no applicable tax treaties or Bermuda laws,
decrees or regulations which would impact on payment or remittance of
dividends, require withholding for tax purposes or restrict the export or
import of capital.
(d) Custody Arrangements For Certificates
For Common Stock
Each shareowner may elect to have First Union National Bank
("First Union") hold his or her certificates as custodian without cost to the
shareowner.
If the shareowner elects to have First Union hold the
shares of Common Stock in custody, First Union will have the shares registered
in its name and will sell or otherwise dispose of the shares only upon the
shareowner's instruction and in conformity with OPL's Bye-Laws. Dividends and
other distributions on Common Stock held in custody will be promptly remitted
by First Union to the shareowner. Shareowners will receive periodic statements
of the number of shares held by First Union for their account and of dividends
paid on those shares. Notice of any regular or special meeting of shareowners
of OPL will be forwarded to shareowners by First Union, which will vote the
shares as directed by the shareowner or, on request, furnish the shareowner
with a proxy thus permitting the shareowner to vote the number of shares of
Common Stock held for him or her at the meeting.
23
<PAGE> 25
Item 6. Selected Financial Data
The following selected financial information should be read in
conjunction with Overseas' consolidated financial statements and "Management's
Discussion and Analysis of Financial Condition and Results of Operations" which
follow this section. All currency amounts herein are transacted and expressed
in U.S. dollars.
Five-Year Selected Financial Data
(in thousands, except per share amounts)
<TABLE>
<CAPTION>
Income Statement Data:
---------------------
Years Ended December 31,
1996 1995 1994 1993 1992
---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C>
Reinsurance:
Premiums written $560,561 $500,652 $449,577 $347,906 $330,067
Premiums earned $531,088 $463,910 $432,323 $345,770 $329,455
Underwriting income $244,489 $237,221 $223,113 $176,792 $176,275
Leasing and Real Estate:
Revenue $150,741 $125,450 $121,758 $ 49,686 $ 47,781
Operating income $ 57,466 $ 47,910 $ 46,743 $ 34,180 $ 31,600
Investments:
Interest Income $ 55,538 $ 87,361 $ 43,731 $ 52,921 $ 46,612
Net holding gain on trading
securities $ 91,758 $ 48,636 - - -
Net gain (loss) on sale of
investments - $ 8,520 $ (54,269) $ 26,813 $ (4,730)
Investment income (loss) $165,981 $150,700 $ (5,138) $ 83,561 $ 44,062
Interest expense, Net $ 42,156 $ 38,341 $ 32,069 $ 24,298 $ 24,194
Administrative Expenses $ 13,753 $ 8,882 $ 5,743 $ 5,363 $ 5,040
Net Income $401,225 $370,799 $ 222,444 $260,658 $219,574
Net Income per share $ 2.97 $ 2.73 $ 1.60 $ 1.82 $ 1.50
Cash dividends per share $ .72 $ .60 $ .48 $ .45 $ .41
</TABLE>
<TABLE>
<CAPTION>
Balance Sheet Data:
- ------------------
As of December 31,
1996 1995 1994 1993 1992
---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C>
Cash and Investments $1,873,028 $1,650,291 $1,388,697 $1,166,423 $1,053,574
Total Assets:
Reinsurance $1,864,360 $1,699,035 $1,417,013 $1,331,892 $1,223,031
Leasing and Real Estate $1,327,809 $720,276 $668,877 $600,584 $387,439
---------- -------- -------- -------- --------
$3,192,169 $2,419,311 $2,085,890 $1,932,476 $1,610,470
---------- ---------- --------- --------- ---------
Debt $713,790 $436,674 $402,943 $385,077 $243,764
Members' Equity $1,922,797 $1,631,492 $1,373,931 $1,257,765 $1,079,728
Book value per share $14.24 $12.00 $9.88 $8.80 $7.40
</TABLE>
24
<PAGE> 26
Item 7 Management's Discussion and Analysis of
Financial Condition and Results of Operations
RESULTS OF OPERATIONS
1996 Compared to 1995
Reinsurance:
Reinsurance premiums written increased to $560.6 million in the year ended
December 31, 1996, from $500.7 million in 1995. The increase of $59.9 million
was due to growth in excess value premiums of $21.5 million, decreased workers'
compensation reinsurance premiums written of $19.1 million and an increase in
other reinsurance premiums written of $57.5 million. Excess value reinsurance
premiums increased due to a 6% increase in excess value units over 1995.
Workers' compensation reinsurance premiums written decreased $19.1 million due
to a change in the program's coverage period and renewal date from May 1, 1997
to December 31, 1996. The increase in other reinsurance premiums written was
primarily the result of four new treaties which contributed $68.4 million in
premiums written in 1996, and increased premiums of $11.3 million on the
renewal of existing programs. This premium increase was offset by reduced
premiums of $22.2 million from four reinsurance programs which were
discontinued and are currently in run-off. The increase in reinsurance
underwriting income of $7.3 million is primarily due to excess value
reinsurance.
Leasing and Real Estate:
Leasing and real estate revenue increased by $25.3 million over 1995. OPCC
purchased office buildings in November 1995 and August 1996, which generated
rents of $17.1 million for 1996 compared to $1.7 million in 1995. The two
properties acquired in December 1996 did not contribute to revenues in 1996.
Hotel sales increased $7.2 million due to higher occupancy and higher room
rates. Operating lease rents with UPS increased $2.9 million due to increased
rents resulting from the expansion of the data processing facility. Operating
expenses increased due to increased hotel operating expenses, increased costs
at the data processing facility due to its expansion and increased operating
costs for new buildings. Leasing and real estate operating income increased
from $47.9 million to $57.5 million in 1996.
Investment Income:
The investment results for the year ended December 31,1996, reflect the effects
of the diversification steps taken in November 1995 and the reclassification of
our investments as trading securities with the corresponding reporting of
unrealized gains and losses as income instead of as a separate component of
Members' Equity. Investment income increased by $15.2 million over 1995
primarily due to increased net holding gains on investments of $34.6 million,
25
<PAGE> 27
increased dividends on real estate investment trust securities and equity
securities of $12.1 million offset by a decline in interest income of $31.8
million. Net holding gains on the equity portfolio increased $78.3 million and
were partially offset by increased holding losses in the fixed income portfolio
of $43.7 million due to declines in carrying values resulting from increases in
interest rates during the year. Interest from debt securities declined $31.8
million, primarily due to a lower allocation of investments in fixed income
securities of 53% in 1996 instead of almost 100% during 1995.
Interest Expense:
Interest expense increased from $38.3 million to $42.2 million in 1996
primarily due to the assumption of additional debt in connection with the
acquisition of office buildings and amortization of hedging costs on the
refinancing of the hotel debt.
Administrative Expenses:
General and administrative expenses increased from $8.9 million to $13.8
million in 1996 primarily due to increased investment fees associated with the
diversification of the investment portfolio and added fees for shareowners
services.
Net Income:
Net income increased by $30.4 million over 1995 due to improved earnings in all
segments, with the greatest improvement reported in our investment activities.
Net income per share was $2.97, a 24 cent per share increase over 1995.
1995 Compared to 1994
Reinsurance:
Reinsurance premiums earned increased from $432.3 million in the year ended
1994 to $463.9 million in the year ended 1995, due to increased excess value
reinsurance premiums of $22.8 million and higher premiums from other
reinsurance of $25.8 million, partially offset by reduced premiums from
workers' compensation reinsurance of $17.0 million. The growth in excess value
reinsurance premiums is primarily the result of a 5.3% increase in excess value
units over 1994. The increase in other reinsurance premiums earned is
primarily due to new 1995 treaties and growth in existing business. Workers'
compensation reinsurance premiums decreased primarily as a result of rate
reductions in California in 1995. The increase in reinsurance underwriting
income of $14.1 million is primarily due to improved results from excess value
reinsurance.
26
<PAGE> 28
Leasing and Real Estate:
Leasing and real estate operating income increased from $46.7 million to $47.9
million, primarily due to hotel operations and an office building acquired in
November 1995. Operating lease income increased $1.2 million due to improved
results from the data processing facility and aircraft leases after adjustment
for a $2.6 million non-recurring gain from the sale of aircraft in 1994.
Finance lease income decreased $0.9 million from 1994, primarily due to the
termination of a finance lease in January 1995 when the lessee exercised its
purchase option on underlying equipment. Hotel income increased by $2.7
million due to higher average room rates, offset in part by reduced room
availability due to planned room renovations completed in the first quarter of
1995. In November 1995, Overseas acquired an office building which generated
net rental property income of $0.8 million with no results of operations
applicable for 1994.
Investment Income:
Investment income increased from a loss of $5.1 million in 1994 to a gain of
$150.7 million in 1995, primarily as a result of increased interest income,
reduced realized losses incurred on the Company's investment portfolio and the
change in unrealized gains on investments we own. The realized losses in 1994
were the result of increases in interest rates in the U.S. and in Europe which
reduced the market value of longer maturity bonds owned by Overseas. In
response to the uncertainty experienced in 1994, a significant part of 1995 saw
the investment portfolio in a cautious but profitable position in the fixed
income markets, as duration was reduced from levels of the prior year.
Following an extensive study aimed at improving future investment returns, the
Company repositioned its portfolio in November 1995, which now has a
substantial allocation to equity investments, both in the U.S. and other
regions. Effective December 31, 1995, Overseas adopted FASB's Guide to
Implementation of Statement 115 on Accounting for Certain Investments in Debt
and Equity Securities, reclassified its available-for-sale portfolio as trading
securities and caused changes in unrealized gains and losses to be reported as
income and not as a separate component of members' equity. As a result, gain
or loss on sale of investments was reduced from a $54 million loss to an $8.5
million gain; interest income increased $43.6 million and unrealized gains
contributed an additional $48.6 million of investment income. The allocation
to equities effective November 1995 contributed over $20 million of the $48.6
million increase in unrealized gains.
Interest Expense:
Interest expense increased from $32.1 million in 1994 to $38.3 million in 1995
as a result of increases in interest rates and the assumption of additional
debt in connection with the hotel and the acquisition of the office building in
1995.
Net Income:
Net income for 1995 increased by $148.4 million over 1994 due to improved
earnings in all of our operating activities, but primarily in our investment
activities. Net income per share was $2.73, a $1.13 per share increase over
1994.
27
<PAGE> 29
LIQUIDITY AND CAPITAL RESOURCES
Overseas believes that its investments and cash flow
from operations are adequate sources of capital and liquidity for the payment
of claims and the conduct of its existing leasing, and real estate operations.
Overseas further believes that its strong capital position will permit
continued expansion of its reinsurance business should appropriate
opportunities arise. In the event Overseas decides to purchase additional
capital assets, it may, as demonstrated by its existing portfolio of assets,
finance such purchases from internally generated funds or by outside borrowing
which Overseas believes would be readily available to it.
Overseas' investment policies are designed to achieve
enhanced returns to shareowners measured over conventional medium to long-term
market cycle periods. Overseas primarily invests in highly liquid debt
securities of governments, government agencies, financial institutions and
utilities in its fixed income portfolio and in stocks drawn mainly from the S&P
500 Index for its equity portfolio. Increases in interest rates could have a
negative effect on the value of the bonds and equities comprised within its
investment portfolio. However, Overseas expects that an increase in interest
rates will have no material adverse effect on overall liquidity.
Because the liquidity of Overseas' investments
permits Overseas to respond quickly to changing market conditions, Overseas'
investments are not significantly affected by inflation. Inflation, including
inflation in damage awards and costs, can substantially increase the ultimate
cost of settlement in certain types of insurance. This is because the actual
payment of claims may take place a number of years after the provisions for
losses are reflected in the financial statements. Overseas will, on the other
hand, earn income on the funds retained for a period of time until eventual
payment of a claim.
OPL and OP Re participate in reinsurance of life, and
other property policies, which is referred to as "other reinsurance", with
their activities to date centered mainly on treaty relationships with major
insurance and reinsurance companies. As of December 31, 1996, $28 million of
life reinsurance had been assumed, a net decrease of $29 million from 1995,due
to the cancellation of a treaty with Norwich Life, carrying reserves of $20
million and to existing programs being amortized by approximately $9 million.
OPL and OP Re expanded their other property reinsurance business through
participation in additional reinsurance arrangements covering property ,
workers' compensation , automobile liability risks and the credit performance
of a loan portfolio. Premiums from other reinsurance programs increased by
over $57 million over 1995. OPL and OP Re anticipate continued growth in this
challenging area of their reinsurance operations.
In their life, property and casualty and other reinsurance
businesses, OPL and OP Re reinsure through treaty relationships risks of The
Equitable Life Assurance Society, Liberty Mutual Fire Insurance Company,
Lincoln National Reassurance Company of Fort Wayne, Indiana, Prudential
Property and Casualty Insurance Co., American International Specialty Lines
Insurance Co., New Hampshire Insurance Co., Hannover Re, Motor Insurance
Corporation, Associated Industries Insurance Company, Inc. and The Bank of
Boston. In accordance with normal business
28
<PAGE> 30
practice, letters of credit in favor of certain insurance companies reinsured
by OPL and OP Re are established and amended periodically based upon the
insurance companies' actual loss experience.
OPL Funding issued $245 million of its bonds in two series
to permanently finance the acquisition of the facility and the five Boeing
757's in November 1990. Fixed rentals on these assets (which will be $24.4
million per year until the maturity of the first series of bonds in 2012 and
$7.3 million per year thereafter until the maturity of the second series in
2019) approximate the interest payments on the bonds and have been committed to
that purpose. Variable rentals, based on usage of these assets, were $18.9
million in 1996, $16.0 million in 1995 and $15.1 million in 1994. For further
information regarding lease payments see Note 5 of the Notes to Consolidated
Financial Statements included in "Item 8 -- Financial Statements and
Supplementary Data."
OPCC conducted its seventh full year of operations in the
leasing and real estate business in 1996. It leases five Boeing 757's and a
data processing facility to subsidiaries of UPS. Additionally, OPCC has
invested in finance leases with two different lessees for hopper cars and a
distribution facility in Illinois. In December 1993, it purchased a prominent
hotel in Boston, Massachusetts. In November 1995, OPCC acquired an office
building in Atlanta, Georgia. There were three new additions to the real
estate and leasing portfolio in 1996. In August 1996, OPCC purchased the
Atlanta Financial Center in Atlanta, Georgia and in December 1996 it acquired
another office building in Chicago, Illinois. Also in December 1996, OPCC
purchased a two-third partnership interest in a retail and office complex
adjacent to the hotel in Boston. In connection with the acquisition of leased
assets and real estate assets, OPCC has issued or assumed certain debt
obligations. For further information, see Notes to Consolidated Financial
Statements included in "Item 8 -- Financial Statements and Supplementary Data".
OPCC continues to actively seek additional investment opportunities.
The United States Internal Revenue Service ("IRS")
has issued a Notice of Deficiency with respect to the year 1984 in which it
asserted that OPL is subject to U.S. tax in the amount of $53 million for the
year 1984, plus penalties and interest. OPL contested the proposed assessment
of tax in the Notice of Deficiency on August 18, 1995 by filing a Petition in
the United States Tax Court. The IRS has also asserted that OPL is subject to
U.S. taxation and has proposed an assessment of $240 million of tax for the
years 1985 through 1987, plus penalties and interest. The Company has filed a
Protest against the proposed assessment with the Appellate Division of the IRS
with respect to the years 1985 through 1987; however pending resolution of the
matter, the IRS may take similar positions for all subsequent years. OPL
believes that it has no tax liability, that it is not subject to U.S. taxation,
and that there is substantial authority for its position. It will vigorously
contest the Notice of Deficiency for 1984, the proposed assessment for the
years 1985 through 1987 and any future assessments.
Overseas believes that its borrowing capabilities and cash
flows from reinsurance, investments and leasing and real estate operations will
be a sufficient source of capital for its ongoing operations. On a long-term
basis, Overseas believes that its resources and available credit capacity will
continue to be adequate to meet any obligations likely to arise under its
existing lines of business, and that its resources are sufficient to allow it
to underwrite additional reinsurance business as well as to acquire additional
capital assets in the future.
29
<PAGE> 31
Item 8. Financial Statements and Supplementary Data
The Financial Statements of Overseas are filed together
with this Report: see pages [F-1 to F-14] which are incorporated herein by
reference.
Item 9. Changes in and Disagreements with Accountants
on Accounting and Financial Disclosure
Not applicable.
PART III
Item 10. Directors and Executive Officers of the Registrant
Information regarding the Directors and Executive Officers
of OPL presented under the captions "Election of Directors" and "Executive
Officers" in OPL's definitive Proxy Statement for the Annual Meeting of
Shareowners to be held on May 28, 1997, which will be filed with the Securities
and Exchange Commission (the "SEC") by April 29, 1997, is incorporated herein
by reference. See "Item 1 -- Executive Officers".
Item 11. Executive Compensation
Information in answer to this Item 11 is presented under
the caption "Compensation of Executive Officers and Other Information" and
"Compensation of Directors" in OPL's definitive Proxy Statement for the Annual
Meeting of Shareowners to be held on May 28, 1997, which will be filed with the
SEC by April 29, 1997, is incorporated herein by reference.
Item 12. Security Ownership of Certain Beneficial Owners and Management
Information in answer to this Item 12 is presented under
the caption "Stock Ownership of Certain Beneficial Owners and Management" in
OPL's definitive Proxy Statement for the Annual Meeting of Shareowners to be
held on May 28, 1997, which will be filed with the SEC by April 29, 1997, is
incorporated herein by reference.
Item 13. Certain Relationships and Related Transactions
Information in answer to this Item 13 is presented under
the caption "Certain Relationships and Related Transactions" in OPL's
definitive Proxy Statement for the Annual Meeting of Shareowners to be held on
May 28, 1997, which will be filed with the SEC by April 29, 1997, is
incorporated herein by reference.
30
<PAGE> 32
PART IV
Item 14. Exhibits, Financial Statement
Schedules and Reports on Form 8-K
(a) 1. Financial Statements.
- See Index to Financial Statements and Financial
Statement Schedules at page F-1, which is incorporated herein by reference.
2. Financial Statement Schedules.
- See Index to Financial Statements and Financial
Statement Schedules at page F-1, which is incorporated herein by reference.
3. List of Exhibits.
- See Exhibit Index at page E-1, which is incorporated herein by reference.
(b) Reports on Form 8-K.
- No reports on Form 8-K were filed during the quarter
ended December 31, 1996.
(c) Exhibits required by Item 601 of Regulation S-K.
- See Exhibit Index at page E-1, which is incorporated
herein by reference.
31
<PAGE> 33
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities
Exchange Act of 1934, Overseas Partners Ltd. has duly caused this Report to be
signed on its behalf by the undersigned, thereunto duly authorized, in
Hamilton, Bermuda.
OVERSEAS PARTNERS LTD.
Date: March 17, 1997 By: /s/ Bruce M. Barone
-------------------
Bruce M. Barone
President, Chief Executive Officer
and Principal Financial Officer
Pursuant to the requirements of the Securities Exchange Act of 1934, this
Report has been signed below by the following persons in the capacities and on
the dates indicated:
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ Bruce M. Barone President, Chief Executive Officer March 17, 1997
------------------- (Principal Financial Officer) and
(Bruce M. Barone) Director
/s/ Robert J. Clanin Director March 17, 1997
--------------------
(Robert J. Clanin)
/s/ Joseph M. Pyne Director March 17, 1997
------------------
(Joseph M. Pyne)
/s/ Cyril E. Rance Director March 17, 1997
------------------
(Cyril E. Rance)
/s/ Edwin H. Reitman Chairman March 17, 1997
-------------------- of the Board of Directors and
(Edwin H. Reitman) Director
/s/ Leopold A. Schmidt Vice President and Treasurer March 17, 1997
---------------------- (Principal Accounting Officer)
(Leopold A. Schmidt)
/s/ Walter A. Scott Director March 17, 1997
-------------------
(Walter A. Scott)
/s/ Michael J. Moletta Authorized Representative in the March 17, 1997
---------------------- United States
(Michael J. Molletta)
</TABLE>
<PAGE> 34
OVERSEAS PARTNERS LTD.
AND SUBSIDIARIES
CONSOLIDATED FINANCIAL STATEMENTS
AND SCHEDULES COMPRISING ITEMS 8
AND 14(a) OF THE ANNUAL REPORT
ON FORM 10-K TO THE SECURITIES
AND EXCHANGE COMMISSION
<PAGE> 35
OVERSEAS PARTNERS LTD. AND SUBSIDIARIES
INDEX TO FINANCIAL STATEMENTS AND
FINANCIAL STATEMENT SCHEDULES
<TABLE>
<CAPTION>
Item 8. Financial Statements Page Number
- ------- -------------------- -----------
<S> <C> <C>
Independent Auditors' Report F - 2
Consolidated Balance Sheet December 31, 1996 and 1995 F - 3
Statement of Consolidated Income years ended December 31, F - 4
1996,1995, and 1994
Statement of Consolidated Members' Equity years ended F - 5
December 31, 1996, 1995 and 1994
Statement of Consolidated Cash Flows years ended December F - 6
31, 1996, 1995 and 1994
Notes to Consolidated Financial Statements years ended F - 7
December 31, 1996, 1995 and 1994 to
F - 14
</TABLE>
Item 14(a). Financial Statement Schedules
All schedules are omitted because they are not applicable,
or not required, or because the required information is
included in the consolidated financial statements or notes
thereto, with the exception of the Summary of Investment
Schedule which is included in the text of this Form
10-K, page 12.
F-1
<PAGE> 36
INDEPENDENT AUDITORS' REPORT
To the Board of Directors and Members
of Overseas Partners Ltd.
Hamilton, Bermuda
We have audited the accompanying consolidated balance sheets of Overseas
Partners Ltd. and its Subsidiaries as of December 31, 1996 and 1995, and the
related statements of consolidated income, members' equity, and cash flows for
each of the three years in the period ended December 31, 1996. These financial
statements are the responsibility of the Company's management. Our
responsibility is to express an opinion on these financial statements based on
our audits.
We conducted our audits in accordance with auditing standards generally
accepted in the United States of America. Those standards require that we plan
and perform the audit to obtain reasonable assurance about whether the
financial statements are free of material misstatement. An audit includes
examining, on a test basis, evidence supporting the amounts and disclosures in
the financial statements. An audit also includes assessing the accounting
principles used and significant estimates made by management, as well as
evaluating the overall financial statement presentation. We believe that our
audits provide a reasonable basis for our opinion.
In our opinion, such consolidated financial statements present fairly, in all
material respects, the financial position of Overseas Partners Ltd. and its
Subsidiaries as of December 31, 1996 and 1995, and the results of their
operations and their cash flows for each of the three years in the period ended
December 31, 1996 in conformity with accounting principles generally accepted
in the United States of America.
/s/ DELOITTE & TOUCHE
Hamilton, Bermuda
January 9, 1997
F-2
<PAGE> 37
OVERSEAS PARTNERS LTD. AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEET
DECEMBER 31, 1996 AND 1995
(U.S.$ IN THOUSANDS, EXCEPT SHARE AND PER SHARE AMOUNTS)
<TABLE>
<CAPTION>
1996 1995
---- ----
<S> <C> <C>
ASSETS:
Cash and cash equivalents $ 394,343 $ 327,259
Investments (principally at fair value) 1,478,685 1,323,032
Receivables:
Interest, premiums and other 80,313 76,776
Rentals 5,857 4,147
Deposits with insurers 34,989 63,092
Deferred acquisition costs 27,104 16,332
Leasing :
Operating leases with UPS 306,141 314,733
Finance leases 49,201 50,294
Hotel 169,624 173,817
Office buildings 618,157 61,776
Other assets 27,755 8,053
- -----------------------------------------------------------------------------------------------------
Total Assets $3,192,169 $2,419,311
- -----------------------------------------------------------------------------------------------------
LIABILITIES & MEMBERS' EQUITY:
LIABILITIES:
Accrued losses and loss expenses $ 265,166 $ 214,207
Accounts payable and other accruals 100,036 25,133
Unearned premiums 104,412 74,939
Deferred income taxes 47,668 36,866
Debt 713,790 436,674
Minority interest 38,300 --
- -----------------------------------------------------------------------------------------------------
Total Liabilities $1,269,372 $ 787,819
- -----------------------------------------------------------------------------------------------------
MEMBERS' EQUITY:
Preference stock, par value $.10 per share;
authorized 200,000,000 shares; none issued -- --
Common stock, par value, $.10 per share;
authorized 900,000,000 shares; issued and
outstanding, 135,000,000 shares in 1996 and
136,000,000 shares in 1995 13,500 13,600
Contributed surplus 25,331 25,331
Retained earnings 1,883,966 1,592,561
Total Members' Equity 1,922,797 1,631,492
- -----------------------------------------------------------------------------------------------------
Total Liabilities & Members' Equity $3,192,169 $2,419,311
- -----------------------------------------------------------------------------------------------------
BOOK VALUE PER SHARE $ 14.24 $ 12.00
- -----------------------------------------------------------------------------------------------------
</TABLE>
See notes to consolidated financial statements.
F-3
<PAGE> 38
OVERSEAS PARTNERS LTD. AND SUBSIDIARIES
STATEMENT OF CONSOLIDATED INCOME
YEARS ENDED DECEMBER 31, 1996, 1995 AND 1994
(U.S.$ IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
<TABLE>
<CAPTION>
1996 1995 1994
---- ---- ----
<S> <C> <C> <C>
REVENUES:
Reinsurance premiums written $560,561 $500,652 $ 449,577
Change in unearned premiums (29,473) (36,742) (17,254)
- ----------------------------------------------------------------------------------------------------------
Reinsurance premiums earned 531,088 463,910 432,323
Operating leases with UPS 43,359 40,456 42,572
Finance leases 4,092 4,256 5,185
Hotel 86,175 79,012 74,001
Office buildings 17,115 1,726 ---
Interest from debt securities 55,538 87,361 43,731
Net holding gain on trading securities 91,758 48,636 ---
Net gain (loss) on investments available-for- --- 8,520 (54,269)
sale
Amortization of held-to-maturity securities 4,483 4,112 3,772
Dividends 14,202 2,071 1,628
- ----------------------------------------------------------------------------------------------------------
847,810 740,060 548,943
- ----------------------------------------------------------------------------------------------------------
EXPENSES:
Reinsurance losses and loss expenses 236,293 189,373 175,090
Reinsurance commissions and taxes 50,306 37,316 34,120
Depreciation 17,497 13,512 13,005
Leasing & real estate operating expenses 75,778 64,028 62,010
Interest 42,156 38,341 32,069
Administrative 13,753 8,882 5,743
- ----------------------------------------------------------------------------------------------------------
435,783 351,452 322,037
- ----------------------------------------------------------------------------------------------------------
Income before income taxes 412,027 388,608 226,906
Income taxes - deferred (10,802) (17,809) (4,462)
- ----------------------------------------------------------------------------------------------------------
NET INCOME $401,225 $370,799 $ 222,444
- ----------------------------------------------------------------------------------------------------------
NET INCOME PER SHARE $ 2.97 $ 2.73 $ 1.60
- ----------------------------------------------------------------------------------------------------------
</TABLE>
See notes to consolidated financial statements.
F-4
<PAGE> 39
OVERSEAS PARTNERS LTD. AND SUBSIDIARIES
STATEMENT OF CONSOLIDATED MEMBERS' EQUITY
YEARS ENDED DECEMBER 31, 1996, 1995 AND 1994
(U.S.$ IN THOUSANDS, EXCEPT FOR PER SHARE AMOUNTS)
<TABLE>
<CAPTION>
Common Stock Unrealized Total
Preference ------------ Contributed Retained Gain on Members'
Stock Shares Amount Surplus Earnings Investments Equity
----- --------- ------- ------- -------- ----------- ------
<S> <C> <C> <C> <C> <C> <C> <C>
BALANCE, JANUARY 1, 1994 $ - 143,000 $14,300 $25,331 $1,211,778 $ 6,356 $1,257,765
Net income - - - - 222,444 - 222,444
Dividends paid ($.48 per share) - - - - (66,720) - (66,720)
Retirement of common stock - (4,000) (400) - (34,800) - (35,200)
Change in unrealized gain on
investments - - - - - (4,358) (4,358)
-------------------------------------------------------------------------------------------------------------------------
BALANCE, DECEMBER 31, 1994 $ - 139,000 $13,900 $25,331 $1,332,702 $ 1,998 $1,373,931
Net income - - - - 370,799 - 370,799
Dividends paid ($.60 per share) - - - - (81,600) - (81,600)
Retirement of common stock - (3,000) (300) - (29,340) - (29,640)
Change in unrealized gain on
investments - - - - - 38,668 38,668
Transfer of unrealized gain to
income - - - - - (40,666) (40,666)
- --------------------------------------------------------------------------------------------------------------------------
BALANCE, DECEMBER 31, 1995 $ - $136,000 $13,600 $25,331 $1,592,561 $ - $1,631,492
Net income - - - - 401,225 - 401,225
Dividends paid ($.72 per share) - - - - (97,920) - (97,920)
Retirement of common stock - (1,000) (100) - (11,900) - (12,000)
- --------------------------------------------------------------------------------------------------------------------------
BALANCE, DECEMBER 31, 1996 $ - $135,000 $13,500 $25,331 $1,883,966 $ - $1,922,797
- --------------------------------------------------------------------------------------------------------------------------
</TABLE>
See notes to consolidated financial statements.
F-5
<PAGE> 40
OVERSEAS PARTNERS LTD. AND SUBSIDIARIES
STATEMENT OF CONSOLIDATED CASH FLOWS
YEARS ENDED DECEMBER 31, 1996, 1995 AND 1994
(U.S.$ IN THOUSANDS)
<TABLE>
<CAPTION>
1996 1995 1994
---- ---- ----
<S> <C> <C> <C>
Cash flow from operating activities:
Net income $ 401,225 $ 370,799 $ 224,444
Adjustments to reconcile net income to net cash provided by
operating activities:
Depreciation 17,497 13,512 13,005
Income taxes - deferred 10,802 17,809 4,462
Net holding gain on trading securities (91,758) (48,636) ----
Net loss (gain) on investments available-for-sale ---- (8,520) 54,269
Proceeds from sale of investments 1,153,594 ---- ----
Purchase of investments (1,209,433) ---- ----
Net gain on sale of Boeing 727 Aircraft ---- ---- (2,623)
Other (7,905) (2,853) (5,666)
Changes in Assets and Liabilities:
Interest, premiums and other receivables (3,537) (18,481) 2,322
Rentals receivable (1,710) (3,857) 6,306
Deposits with insurers 28,103 14,389 49,777
Deferred acquisition costs (10,772) (6,668) (7,593)
Other assets (19,702) (593) (2,383)
Accrued losses and loss expenses 50,959 (5,104)
Accounts payable and other accruals (1,697) (2,061) 23,734
Unearned premiums 29,473 36,742 17,254
- ----------------------------------------------------------------------------------------------------------------
Net cash flow provided by operating activities 345,139 356,478 344,294
- ----------------------------------------------------------------------------------------------------------------
Cash flow from investing activities:
Proceeds from maturities and sale of investments ---- 2,334,180 2,943,344
Proceeds from sale of Boeing 727 aircraft ---- ---- 16,928
Purchases of investments ---- (2,634,850) (2,954,254)
Proceeds from termination of finance leases ---- 14,541 ----
Acquisition of office buildings (232,969) (62,131) ----
Additions to fixed assets (2,225) (23,445) (4,580)
- ----------------------------------------------------------------------------------------------------------------
Net cash flow provided (used) by investing activities (235,194) (371,705) 1,438
- ----------------------------------------------------------------------------------------------------------------
Cash flow from financing activities:
Retirement of common stock (12,000) (29,640) (35,200)
Dividends paid (97,920) (81,600) (66,720)
Repayment of debt (122,641) (1,325) (102,190)
Borrowings 189,700 35,000 120,000
- ----------------------------------------------------------------------------------------------------------------
Net cash flow used by financing activities (42,861) (77,565) (84,110)
- ----------------------------------------------------------------------------------------------------------------
Net increase (decrease) in cash and cash equivalents 67,084 (92,792) 261,622
Cash and cash equivalents:
Beginning of year 327,259 420,051 158,429
- ----------------------------------------------------------------------------------------------------------------
End of year $ 394,343 $ 327,259 $ 420,051
- ----------------------------------------------------------------------------------------------------------------
Amounts paid for:
U.S. income taxes $ 168 $ 619 $ 25
- ----------------------------------------------------------------------------------------------------------------
Interest $ 49,923 $ 38,284 $ 19,923
- ----------------------------------------------------------------------------------------------------------------
</TABLE>
See notes to consolidated financial statements.
F-6
<PAGE> 41
OVERSEAS PARTNERS LTD. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
YEARS ENDED DECEMBER 31, 1996, 1995 AND 1994
1. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
The accompanying consolidated financial statements include the accounts of
Overseas Partners Ltd. ("OPL") and its subsidiaries (collectively "Overseas").
Intercompany balances and transactions have been eliminated in consolidation.
The accounts have been prepared in accordance with accounting principles
generally accepted in the United States of America.
The preparation of financial statements in conformity with generally
accepted accounting principles requires management to make estimates and
assumptions that affect the reported amount of assets and liabilities,
disclosure of contingent assets and liabilities at the date of the financial
statements, and the reported amounts of revenues and expenses during the
reporting period. Actual results could differ from those estimates.
Overseas is engaged in the property, casualty and life reinsurance business
and in the leasing and real estate business. A major source of its reinsurance
business is the reinsurance of shipper's insurance issued by U.S. based
insurance companies covering loss or damage to shippers' packages carried by
subsidiaries of United Parcel Service (UPS). OPL expects that package
reinsurance will continue to be a significant part of its business. However,
there can be no assurance that UPS or its subsidiaries will continue to utilize
the insurance arrangements for which OPL provides reinsurance.
For its property and casualty reinsurance business, premiums written are
recognized as earned on a pro-rata basis over the periods of the respective
policies. Unearned premiums and acquisition costs, primarily commissions and
taxes applicable to the unexpired periods of the policies in force, are
deferred.
Reinsurance premiums which are subject to adjustments are estimated based
upon available information. Any variances from the estimates are recorded in
the periods in which they become known.
Losses and loss expenses on property and casualty business include
outstanding losses, as reported, and a provision for losses incurred but not
reported which is based on estimates of the ultimate liability for losses.
Although Overseas believes this provision is adequate, actual losses may vary
from such estimates. Any such variances will be recorded in periods in which
they become known.
For its life reinsurance business, Overseas includes the full amount of
reinsurance provided as a liability in accrued losses and loss expenses and as
an asset in deposits with insurers. Premiums and related liabilities for
future policy benefits are recognized when premiums are due.
Letters of credit of $357 million and $149 million at December 31, 1996 and
1995 in favor of certain reinsureds were established and are amended annually
based upon the reinsureds' actual experience.
All highly liquid debt instruments with maturities of three months or less
at the date of acquisition are considered cash equivalents.
Debt issuance expenses, included in other assets, and original issue
discounts are amortized over the term of the related debt.
F-7
<PAGE> 42
OVERSEAS PARTNERS LTD. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
YEARS ENDED DECEMBER 31, 1996, 1995 AND 1994
Leasing and real estate activities include finance leases, operating leases
with UPS and the operation of a hotel and four office buildings. Income from
finance leases is recognized by a method which produces a constant periodic
rate of return on the outstanding investment in the lease. Income from
operating leases is recognized as rentals and becomes receivable according to
the provisions of the leases. The hotel air rights lease is prepaid through
the year 2077 (the expiration date of the lease) and is amortized under the
straight-line method over the life of the lease. Equipment under operating
leases, the hotel and the office building are recorded at cost less accumulated
depreciation, which is provided under the straight-line method over the
estimated useful lives as follows:
<TABLE>
<S> <C>
Operating Leases with UPS
- -------------------------
Facility 40 years
Aircraft 35 years
Hotel
- -----
Building and improvements 40 years
Furniture, fixtures and equipment 10 years
Office Buildings
- ----------------
Building, improvements and options 40 years
Furniture, fixtures and equipment 7 years
</TABLE>
Effective December 31, 1995, Overseas adopted FASB's Guide to
Implementation of Statement 115 on Accounting for Certain Investments in Debt
and Equity Securities and reclassified its available-for-sale securities as
trading securities. Trading securities are carried at fair value.
Available-for-sale securities were carried at fair value, with unrealized gains
and losses, net of applicable income taxes, excluded from net income and
reported as a separate component of Members' Equity. In conjunction with this
transfer, Overseas recognized in income in 1995 an unrealized gain of $48.6
million and related taxes of $7.9 million, of which $7.0 million of gains and
$5.0 million of taxes are from prior periods that were previously included in a
separate component of Members' Equity. Non-U.S. dollar securities are
translated into U.S. dollars at year end rates. Overseas classifies certain
U.S. Treasury notes as held-to-maturity securities carried at amortized cost,
as Overseas has the ability and intent to hold them to maturity. Realized
gains and losses on sales of available-for-sale investments are recognized in
net income on the specific identification basis.
Estimated fair value of investments, including forward exchange contracts
and options, is based on market quotations and estimated fair value of debt is
based on dealer supplied quotations.
Net income and book value per share are based on 135 million shares in
1996, 136 million shares in 1995 and 139 million shares in 1994.
2. TAXES
OPL is incorporated under the laws of the Islands of Bermuda and does not
consider itself to be engaged in a trade or business in the United States and,
therefore, does not expect to be subject to U.S. income taxes. Certain of
OPL's subsidiaries engage in business in the U.S., primarily Overseas Partners
Capital Corp. ("OPCC"), and as a result, it, but not OPL, is subject to U.S.
income taxes. Under current Bermuda law, OPL is not obligated to pay any tax
in Bermuda based upon income or capital gains.
F-8
<PAGE> 43
OVERSEAS PARTNERS LTD. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
YEARS ENDED DECEMBER 31, 1996, 1995 AND 1994
The United States Internal Revenue Service ("IRS") has issued a Notice of
Deficiency with respect to the year 1984 in which it asserted that OPL is
subject to U.S. tax in the amount of $53 million for the year 1984, plus
penalties and interest. OPL contested the proposed assessment of tax in the
Notice of Deficiency on August 18, 1995 by filing a Petition in the United
States Tax Court. The IRS has also asserted that OPL is subject to U.S.
taxation and has proposed an assessment of $240 million of tax for the years
1985 through 1987, plus penalties and interest. The Company has filed a Protest
against the proposed assessment with the Appellate Division of the IRS with
respect to the years 1985 through 1987. Pending resolution of the matter, the
IRS may take similar positions for all subsequent years. OPL believes that it
has no tax liability, that it is not subject to U.S. taxation, and that there
is substantial authority for its position. It will vigorously contest the
Notice of Deficiency for 1984, the proposed assessment for the years 1985
through 1987 and any future assessments.
Deferred income taxes calculated at the U.S. Federal statutory rate of 35%
plus appropriate state income taxes on the income of those subsidiaries engaged
in business in the United States result from temporary differences in the
recognition of revenues and expenses for financial statement and income tax
purposes. The tax effects of those temporary differences are as follows:
(000's omitted)
<TABLE>
<CAPTION>
1996 1995 1994
---- ---- ----
<S> <C> <C>
Excess of tax over book depreciation $ 8,149 $ 6,152 $ 4,494
Benefit of net operating loss carryovers 96 (930) 2,400
Other accrued expenses not currently
deductible (195) 4,617 (2,432)
Unrealized securities holding gain 2,752 7,970 ----
- ------------------------------------------------------------------------
U.S. income taxes - deferred $ 10,802 $ 17,809 $ 4,462
- ------------------------------------------------------------------------
</TABLE>
Overseas has unused net operating loss carryovers which expire as follows:
(000's omitted)
<TABLE>
<CAPTION>
Year
----
<S> <C>
2006 $45,323
2007 $32,584
2008 $15,572
</TABLE>
Overseas also has alternative minimum tax credits which have no expiration
date.
The components of deferred income taxes at December 31, 1996 and 1995 are as
follows: (000's omitted)
<TABLE>
<CAPTION>
1996 1995
---- ----
<S> <C> <C>
Benefit of operating loss carryovers $37,392 $39,310
Other accrued expenses not currently
deductible 2,938 659
Other - net (34) 319
- ------------------------------------------------------------------------------
Total deferred tax assets 40,296 40,288
- ------------------------------------------------------------------------------
Excess of tax over book depreciation 77,551 69,184
Unrealized securities holding gain 10,413 7,970
- ------------------------------------------------------------------------------
Total deferred tax liabilities 87,964 77,154
- ------------------------------------------------------------------------------
Net deferred taxes $47,668 $36,866
- ------------------------------------------------------------------------------
</TABLE>
F-9
<PAGE> 44
OVERSEAS PARTNERS LTD. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
YEARS ENDED DECEMBER 31, 1996, 1995 AND 1994
3. INVESTMENTS
Investments consist of: (000's omitted)
<TABLE>
<CAPTION>
1996 1995
---- ----
<S> <C> <C>
Trading $1,424,491 $1,273,321
Held-to-maturity 54,194 49,711
- ----------------------------------------------------------
$1,478,685 $1,323,032
- ----------------------------------------------------------
</TABLE>
Held-to-maturity securities, which are comprised of zero coupon U.S. Treasury
notes, are carried at amortized cost and have an estimated fair value of $72.6
million at December 31, 1996 and $78.1 million at December 31, 1995.
Amortized cost and estimated fair value of investments in trading securities
are as follows: (000's omitted)
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------------------------------------
AMORTIZED COST UNREALIZED UNREALIZED ESTIMATED FAIR
GAINS LOSSES VALUE
- --------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
December 31, 1996:
Short-term Investments $ 25,333 $ 218 $ (99) $ 25,452
Bonds 532,657 2,012 (5,181) 524,488
Equities 675,030 134,758 (16,097) 793,691
Real estate investment trust certificates 47,104 28,756 ---- 75,860
- --------------------------------------------------------------------------------------------------------------
$ 1,280,124 $ 165,744 $ ( 21,377) $ 1,424,491
- --------------------------------------------------------------------------------------------------------------
December 31, 1995:
Short-term investments $ 64,209 $ 39 $ (61) $ 64,187
Bonds 540,018 6,798 (257) 546,559
Equities 588,734 31,456 (9,217) 610,973
Real estate investment 32,163 19,439 ---- 51,602
trust certificates
- --------------------------------------------------------------------------------------------------------------
$ 1,225,124 $ 57,732 $ (9,535) $ 1,273,321
- --------------------------------------------------------------------------------------------------------------
</TABLE>
The components of gain (loss) on sale of investments available-for-sale were as
follows: (000's omitted)
<TABLE>
<CAPTION>
1995 1994
---- ----
<S> <C> <C>
Gains $ 21,014 $ 13,719
Losses (12,494) (67,988)
----------------------------------------------------------
$ 8,520 $ (54,269)
----------------------------------------------------------
</TABLE>
Included in net holding gain on trading securities of $91.7 million and
$48.6 million in 1996 and 1995, were $100.8 million and $48.6 million of
unrealized holding gains, respectively.
The maturities of fixed income securities held-to-maturity at December
31, 1996, are in excess of ten years.
F-10
<PAGE> 45
OVERSEAS PARTNERS LTD. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
YEARS ENDED DECEMBER 31, 1996, 1995 AND 1994
4. FAIR VALUE OF FINANCIAL INSTRUMENTS
Fair value of financial instruments is as follows:(000's omitted)
<TABLE>
<CAPTION>
1996 1995
-----------------------------------------------------------------------
Carrying Value Fair Value Carrying Value Fair Value
------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Investments: (Note 3)
U.S. dollar denominated $1,305,921 $1,324,307 $1,230,389 $1,258,771
Non-U.S. dollar denominated 172,764 172,764 90,094 90,094
Purchased Options ---- ---- 2,549 1,926
------------------------------------------------------------------------------------------------------
1,478,685 1,497,071 1,323,032 1,350,791
------------------------------------------------------------------------------------------------------
Debt: (Note 7) 713,790 699,352 436,674 526,402
</TABLE>
Purchased options were used to hedge against the impact of unfavorable interest
rate movements on the hotel debt prior to the refinancing of that debt and to
protect the investment in equities against a severe market decline, and were
with parties that Overseas believes are creditworthy. The net carrying value of
these options was included in investments. The premium on the interest rate
option was amortized over the term of the option. The equity index were carried
at fair value and any unrealized gains or losses included in net income.
5. LEASING & REAL ESTATE
Overseas acquired the Atlanta Financial Center in August 1996, and in December
1996, the 333 West Wacker building. The purchase prices of these buildings have
been allocated to the various asset categories in 1996, following independent
appraisals. Also in December 1996, Overseas acquired a two-third interest in
the retail center and office complex, Copley Place. The purchase price will be
allocated to the various asset categories following an independent appraisal in
1997. In November 1995, Overseas purchased One Buckhead Plaza.
F-11
<PAGE> 46
OVERSEAS PARTNERS LTD. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
YEARS ENDED DECEMBER 31, 1996, 1995 AND 1994
Leasing & real assets consist of the following: (000's omitted)
<TABLE>
<CAPTION>
1996 1995
- -----------------------------------------------------------------------------------
<S> <C> <C>
Operating Leases with UPS:
Boeing 757 aircraft $ 237,543 $ 237,543
Data processing facility 117,841 117,841
- -----------------------------------------------------------------------------------
355,384 355,384
Accumulated depreciation (49,243) (40,651)
- -----------------------------------------------------------------------------------
306,141 314,733
- -----------------------------------------------------------------------------------
Finance leases:
Lease rents receivable 103,701 108,887
Estimated residual value 6,744 6,744
Unearned and deferred income (61,244) (65,337)
- -----------------------------------------------------------------------------------
49,201 50,294
- -----------------------------------------------------------------------------------
Hotel:
Building and improvements 152,076 152,076
Furniture, fixtures and equipment 14,605 13,335
Air rights, leasehold interest 18,128 18,128
- -----------------------------------------------------------------------------------
184,809 183,539
- -----------------------------------------------------------------------------------
Accumulated depreciation (15,185) (9,722)
- -----------------------------------------------------------------------------------
169,624 173,817
- -----------------------------------------------------------------------------------
Office buildings:
Building, improvements and options 596,084 56,297
Furniture, fixtures and equipment 3,961 2,334
Land 21,900 3,500
- -----------------------------------------------------------------------------------
621,945 62,131
- -----------------------------------------------------------------------------------
Accumulated depreciation (3,788) (355)
- -----------------------------------------------------------------------------------
618,157 61,776
- -----------------------------------------------------------------------------------
Total $ 1,143,123 $ 600,620
- -----------------------------------------------------------------------------------
</TABLE>
The operating lease agreements require fixed annual minimum rentals and
variable additional rentals based upon usage for certain of the leases.
Variable additional rentals in 1996, 1995 and 1994 were $18.9 million, $16.0
million and $15.1 million, respectively. Total aggregate fixed minimum rentals
are as follows: (000's omitted)
<TABLE>
<CAPTION>
OPERATING FINANCE OFFICE
LEASES LEASES BUILDINGS TOTAL
- -----------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
1997 $ 24,436 $ 5,157 $ 36,501 $ 66,094
1998 24,436 5,157 59,259 88,852
1999 24,436 5,157 54,486 84,079
2000 24,436 5,157 42,928 72,521
2001 24,436 4,476 33,509 62,421
After 2001 320,038 78,597 97,759 496,394
- -----------------------------------------------------------------------------------
$ 442,218 $ 103,701 $ 324,442 $ 870,361
- -----------------------------------------------------------------------------------
</TABLE>
F-12
<PAGE> 47
OVERSEAS PARTNERS LTD. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
YEARS ENDED DECEMBER 31, 1996, 1995 AND 1994
6. ACCRUED LOSSES AND LOSS EXPENSES
Activity in accrued losses and loss expenses is summarized as follows: (000's
omitted)
<TABLE>
<CAPTION>
1996 1995 1994
- ------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Balance at January 1, $214,207 $219,311 $250,325
- ------------------------------------------------------------------------------------------------------
Incurred related to:
Current year 304,756 184,535 174,806
Prior years 2,374 4,838 284
- ------------------------------------------------------------------------------------------------------
Total incurred 307,130 189,373 175,090
- ------------------------------------------------------------------------------------------------------
Paid related to:
Current year (132,480) (104,681) (77,222)
Prior years (94,811) (75,836) (81,059)
- ------------------------------------------------------------------------------------------------------
Total Paid (227,291) (180,517) (158,281)
- ------------------------------------------------------------------------------------------------------
Amortization of life and annuity reserve - net (28,880) (13,960) (47,823)
- ------------------------------------------------------------------------------------------------------
Balance at December 31, $265,166 $214,207 $219,311
- ------------------------------------------------------------------------------------------------------
</TABLE>
7. DEBT
In connection with the acquisition of leasing and real estate assets, Overseas
has issued or assumed certain debt obligations, as follows: (000's omitted)
<TABLE>
<CAPTION>
1996 1995
- ------------------------------------------------------------------------------------------------------
<S> <C> <C>
Operating Leases:
9 7/8% Series A Bonds due 2012 $171,600 $171,600
9 7/8% Series B Bonds due 2019 73,400 73,400
- ------------------------------------------------------------------------------------------------------
245,000 245,000
Unamortized discount (1,011) (1,068)
- ------------------------------------------------------------------------------------------------------
243,989 243,932
- ------------------------------------------------------------------------------------------------------
Finance leases:
7.53% non-recourse note due 1997 through 2008 26,331 27,714
8.1% non-recourse note due 1997 through 2011 10,070 10,070
- ------------------------------------------------------------------------------------------------------
36,401 37,784
- ------------------------------------------------------------------------------------------------------
Hotel:
8.39% non-recourse note due through 2006 109,272 120,000
- ------------------------------------------------------------------------------------------------------
Office buildings:
7.246% non-recourse note due 2005 34,484 34,958
7.8% non-recourse note due through 2006 79,644 ----
8.5% non-recourse note due 1998 210,000 ----
- ------------------------------------------------------------------------------------------------------
324,128 34,958
- ------------------------------------------------------------------------------------------------------
Total debt $713,790 $436,674
- ------------------------------------------------------------------------------------------------------
</TABLE>
Overseas assumed debt of $210 million on the acquisition of the Copley Place.
The debt on the hotel was refinanced in 1996.
F-13
<PAGE> 48
OVERSEAS PARTNERS LTD. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
YEARS ENDED DECEMBER 31, 1996, 1995 AND 1994
Principal payments under debt obligations are as follows: (000's omitted)
<TABLE>
<S> <C>
1997 $ 4,618
1998 214,996
1999 5,404
2000 5,846
2001 6,325
Thereafter 477,612
- -----------------------------------------
714,801
Unamortized discount (1,011)
- -----------------------------------------
$713,790
========
</TABLE>
The right to receive fixed minimum rentals on the Boeing 757 aircraft and data
processing facility is used to collateralize and service the debt interest on
the Series A and Series B bonds. The principal of these bonds is guaranteed by
an OPL wholly-owned subsidiary, Overseas Partners Credit, Inc. Its obligations
are secured by zero-coupon U.S. Treasury notes owned by that subsidiary. On or
prior to the scheduled maturity of each series of the bonds, the U.S. Treasury
notes which secure the guarantee of that series will mature in an amount equal
to or exceeding the principal amount of that series.
8. COMMON STOCK
OPL has the right of first refusal and the right to purchase its shares in
certain circumstances. Prior to August 7, 1996, these rights were enjoyed by
UPS. In 1996, 1995 and 1994, OPL purchased for cancellation, at book value per
share, one million, three million and four million shares, respectively, of its
common stock.
9. BUSINESS SEGMENTS
Overseas is engaged in the reinsurance and leasing and real estate business.
All capital expenditures are associated with the leasing real estate business
segment. Identifiable assets, revenues and operating income are as follows:
(000's omitted)
<TABLE>
<CAPTION>
1996 1995 1994
- ------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Assets:
Reinsurance $1,864,360 $1,699,035 $1,417,013
Leasing and real estate 1,327,809 720,276 668,877
- ------------------------------------------------------------------------------------------------------
Revenues:
Reinsurance premiums written 561,386 502,527 450,627
Reinsurance premiums ceded (825) (1,875) (1,050)
------------------------------------------------
Net reinsurance premiums written 560,561 500,652 449,577
- ------------------------------------------------------------------------------------------------------
Leasing and real estate 150,741 125,450 121,758
- ------------------------------------------------------------------------------------------------------
Operating income:
Reinsurance 244,489 237,221 223,113
Leasing and real estate 57,466 47,910 46,743
- ------------------------------------------------------------------------------------------------------
</TABLE>
10. THE BERMUDA INSURANCE REGULATIONS
The Bermuda Insurance Act of 1978 and related regulations require OPL and OP Re
to each maintain a minimum solvency margin and a liquidity ratio. For the years
ended December 31, 1996 and 1995, OPL and OP Re each met these requirements.
F-14
<PAGE> 49
EXHIBITS
TO
OVERSEAS PARTNERS LTD.
REPORT ON FORM 10-K
FOR FISCAL YEAR ENDED DECEMBER 31, 1996
<PAGE> 50
EXHIBIT INDEX
(3) Articles of Incorporation and Bye-Laws.
<TABLE>
<S> <C> <C>
3(a) Certificate of Incorporation Incorporated by Reference to
Exhibit 3(a) to Registration
Statement (on Form S-l), No.
2-95460.
3(b) Bye-Laws as amended Incorporated by Reference to
Exhibit 3(c) of OPL's Annual
Report on Form l 0-K
for the Year Ended December 3l,
1990.
</TABLE>
(4) Instruments defining the rights of security holders, including indentures.
<TABLE>
<S> <C> <C>
4(a) Copy of specimen stock Incorporated by Reference
certificate to Exhibit 4(a) Registration Statement
(on Form S-1), No.2-95460.
4(b) Agreement accepting restrictions Incorporated by Reference to Exhibit 4(b)
on transfer and rights to purchase to Registration Statement
executed by recipients of shares (on Form S-1), No. 2-95460.
4(c) Subscription Agreement Incorporated by Reference to Exhibit 4(c)
to Registration Statement (on Form S-1),
No. 33-0009.
4(d) Subscription Agreement Incorporated by Reference to Exhibit 4(d)
of OPL's Annual Report on Form 10-K
for the year ended December 31, 1990.
</TABLE>
(l0) Material Contracts.
<TABLE>
<S> <C> <C>
10(a) Facultative Reinsurance Agreement Incorporated by Reference to Exhibit 10(b) of
between OPL and Liberty Mutual Fire OPL's Registration Statement (on Form S-1)
Insurance Company and Amendments. No. 2-95460.
10(b) Facultative Reinsurance Agreement Incorporated by Reference to Exhibit 10(g) of
with New Hampshire Insurance Company OPL's Registration Statement (on Form S-2)
of Manchester, New Hampshire. No. 33-19672.
</TABLE>
E-1
<PAGE> 51
<TABLE>
<S> <C> <C>
10(c) Facultative Reinsurance Incorporated by reference to Exhibit 10(a) to
Agreement among OPL and OPL's Post-Effective Amendment No. 1 to
National Union Fire Registration Statement (on Form S-2) No. 33-30944.
Insurance Company of
Pittsburgh, PA and New
Hampshire Insurance
Company.
10(d) Facultative Reinsurance Incorporated by Reference to Exhibit 10(d) of
Agreement Federal OPL's Registration Statement (on Form S-2)
Insurance Company. No. 33-43869.
10(e) Management Services Incorporated by reference to Exhibit 10(c) of
Agreement between OPL Registration Statement (on Form S-1) No.
and Rollins Hudig Hall 2-95460.
(Bermuda) Ltd. (successor
to Parker & Co. Interocean
Ltd.)
10(f) Investment Management Incorporated by Reference to Exhibit 10(d) of
Agreement with Citibank Registration Statement (on Form S-1) No.
N.A. 2-95460.
10(g) Investment Management Incorporated by Reference to Exhibit 10(e) of
Agreement with County Amendment No. 1 to Registration Statement
Bank Limited. (on Form S-1) No. 2-95460.
10(h) Investment Management Incorporated by Reference to Exhibit 10(f) of
Agreement with Morgan Registration Statement (on Form S-2) No. 33-
Grenfell & Co. Limited 11379.
10(i) Aircraft Lease Agreement Incorporated by Reference to Exhibit 10(f) of
between OPCC, Inc. OPL's Post-Effective Amendment No. 1 to
("OPCC") and United Parcel Registration Statement (on Form S-2) No. 33-
Service Co. ("UPS co.") 30944.
dated May 31, 1990.
10(j) Aircraft Lease Agreement Incorporated by Reference to Exhibit 10(g) of
between OPCC and UPS OPL's Post-Effective Amendment No. 1 to
Co. dated May 31, 1990. Registration Statement (on Form S-2) No. 33-30944
10(k) Aircraft Lease Agreement Incorporated by Reference to Exhibit 10(h) of
between OPCC and UPS OPL's Post-Effective Amendment No. 1 to
Co. dated May 31, 1990. Registration Statement (on Form S-2) No. 33-30944
</TABLE>
E-2
<PAGE> 52
<TABLE>
<S> <C> <C>
10(1) Aircraft Lease Agreement Incorporated by Reference to Exhibit 10(i) of
between OPCC and UPS OPL's Post-Effective Amendment No. 1 to
Co. dated August 31, 1990. Registration Statement (on Form S-2) No. 33-30944.
10(m) Amended and Restated Incorporated by Reference to Exhibit 10(l) of
Aircraft Lease Agreement OPL's Post-Effective Amendment No. 1 to
among OPCC, UPS Co. and Registration Statement (on Form S-2) No. 33-30944.
United Parcel Service of
America, Inc. ("UPS") dated
November 6, 1990.
10(n) Purchase Agreement Incorporated by Reference to Exhibit 10(m) of
Assignment between OPCC, OPL's Form 10-K Annual Report for the Year
UPS Co. and UPS dated ended December 31, 1989.
December 28, 1989.
10(o) Engine Support Contract Incorporated by Reference to Exhibit 10(n) of
Agreement between UPS OPL's
Co. and OPCC dated
December 28, 1989.
10(p) Guaranty Agreement from Incorporated by Reference to Exhibit 10(m) of
OPL in favor of UPS Co. OPL's Post-Effective Amendment No. 1 to
dated November 6, 1990. Registration Statement (on Form S-2)
No. 33-30944.
10(q) Instrument of Conveyance Incorporated by Reference to Exhibit 10(n) of
of Basic Tolls (Series A) OPL's Post-Effective Amendment No. 1 to
among OPCC, UPS, UPS Registration Statement (on Form S-2)
Co., Continental Bank, No. 33-30944.
N.A. as Trustee
("Continental Bank") and
OPL Funding Corp. ("OPL
Funding") dated November
6, 1990.
10(r) Series A Loan Agreement Incorporated by Reference to Exhibit 10(o) of
and Note between OPL OPL's Post-Effective Amendment No. 1 to
Funding and OPCC dated Registration Statement (on Form S-2) No. 33-3094.
November 6, 1990.
</TABLE>
E-3
<PAGE> 53
<TABLE>
<S> <C> <C>
10(s) Security Agreement Incorporated by Reference to Exhibit 10(p) of
between OPL Funding and OPL's Post-Effective Amendment No. 1 to
OPCC dated November 6, Registration Statement (on Form S-2) No. 33-30944.
1990.
10(t) Amended and Restated Incorporated by Reference to Exhibit 10(s) of
Facility Lease Agreement OPL's Post-Effective Amendment No. 1 to
among OPCC, United Registration Statement (on Form S-2) No. 33-30944.
Parcel Service General
Services Co., ("GSC") and
UPS dated November 6,
1990.
10(u) Agreement of Sale between Incorporated by Reference to Exhibit 10(p) of
Edison Corp. and OPCC OPL's Annual Report on Form 10-K for the
dated December 28, 1989. year ended December 31, 1989.
10(v) Assignment and Assumption Incorporated by Reference to Exhibit 10(q) of
Agreement among Edison OPL's Annual Report on Form 10-K for the
Corp., OPCC, McBride year ended December 31, 1989.
Enterprises, Inc. and Ramapo
Ridge-McBride Office Park
dated December 28, 1989.
10(w) Guaranty Agreement from Incorporated by Reference to Exhibit 10(t) of
OPL in favor of GSC dated OPL's Post-Effective Amendment No. 1 to
November 6, 1990. Registration Statement (on Form S-2) No. 33-30944.
10(x) Instrument of Conveyance Incorporated by Reference to Exhibit 10(u) of
of Basic Tolls (Series B) OPL's Post-Effective Amendment No. 1 to
among OPCC, UPS, UPS Co., Registration Statement (on Form S-2) No. 33-30944.
Continental Bank and OPL
Funding dated November 6,
1990.
10(y) Series B Loan Agreement Incorporated by Reference to Exhibit 10(v) of
and Note between OPL OPL's Post-Effective Amendment No. 1 to
Funding and OPCC dated Registration Statement (on Form S-2) No. 33-30944.
November 6, 1990.
10(z) Mortgage and Security Incorporated by Reference to Exhibit 10(w) of
Agreement between OPL OPL's Post-Effective Amendment No. 1 to
Funding and OPCC dated Registration Statement (on Form S-2) No. 33-30944.
November 6, 1990.
</TABLE>
E-4
<PAGE> 54
<TABLE>
<S> <C> <C>
10(aa) Amended and Restated Incorporated by Reference to Exhibit 10(x) of
Trust Indenture and OPL's Post-Effective Amendment No. 1 to
Security Agreement among Registration Statement (on Form S-2) No. 33-30944.
OPL Funding, Overseas
Partners Credit, Inc.("OPL
Credit") and Continental
Bank N.A. as trustee, dated
November 6, 1990.
10(bb) Bond Purchase Agreement Incorporated by Reference to Exhibit 10(y) of
among OPL Funding, UPS, OPL's Post-Effective Amendment No. 1 to
OPL and Salomon Brothers Registration Statement (on Form S-2) No. 33-30944.
Inc. dated November 6,
1990.
10(cc) Letter Agreement from OPL Incorporated by Reference to Exhibit 10(z) of
Funding, UPS and OPL to OPL's Post-Effective Amendment No. 1 to
each Purchaser of the Bonds Registration Statement (on Form S-2) No. 33-30944.
dated November 9, 1990.
10(dd) Indemnification Agreement Incorporated by Reference to Exhibit 10(aa)
among OPL, OPL Funding, of OPL's Post-Effective Amendment No. 1 to
OPCC and Continental Registration Statement (on Form S-2) No. 33-30944.
Bank N.A., as Trustee,
dated November 6, 1990.
10(ee) Investment Management Incorporated by Reference to Exhibit 10(ee)
Agreement with Rothschild of OPL's Annual Report on Form 10-K for the
Asset Management Limited Year Ended December 31, 1992.
10(ff) Insurance Underwriting Incorporated by Reference to Exhibit 10(ff) of
Adviser Agreement between OPL's Annual Report on Form 10-K for the
OPL and Lincoln National Year Ended December 31, 1992.
Intermediaries, Inc. dated
September 3, 1993.
10(gg) Agreement dated as of Incorporated by Reference to Exhibit 99.1 of
December 22, 1993, among OPL's Current Report on Form 8-K dated
Host Marriott Corporation, January 12, 1994.
Urban Investment and
Development Co. and OPCC.
</TABLE>
E-5
<PAGE> 55
<TABLE>
<S> <C> <C>
10(hh) Agreement dated as of Incorporated by Reference to Exhibit 99.2 of
December 31, 1993, between OPL's Current Report on Form 8-K dated
Mascester Company and OPCC. January 12, 1994.
10(ii) Amendment dated Incorporated by Reference to Exhibit 10(ll) of
December 31, 1993 to OPL's Annual Report on Form 10-K for the
Aircraft Lease Agreement Year Ended December 31, 1993.
between OPCC and UPS
Co. dated May 31, 1990.
10(jj) Term Loan Agreement Incorporated by Reference to Exhibit 10(ll) of
dated as of December 30, OPL's Annual Report on Form 10-K for the
1994 between Bank of Year Ended December 31, 1994.
America Illinois and
Marriott Urban Boston
Venture ("MUBV").
10(kk) Guaranty dated as of Incorporated by Reference to Exhibit 10(ll) of
December 30, 1994 of OPL's Annual Report on Form 10-K for the
OPCC. Year Ended December 31, 1994
10(11) Guaranty dated as of Incorporated by Reference to Exhibit 10(ll) of
December 30, 1994 of OPL. OPL's Annual Report on Form 10-K for the
Year Ended December 31, 1994
10(mm) Investment Management Incorporated by Reference to Exhibit 10(ll) of
Agreement with INVESCO OPL's Annual Report on Form 10-K for the
Asset Management Limited. Year Ended December 31, 1994
10(nn) Investment Management Incorporated by Reference to Exhibit 10(ll) of
Agreement with Barings OPL's Annual Report on Form 10-K for the
International Investment Year Ended December 31, 1994
Management Limited.
10(oo) OPCC 1995 Stock Incorporated by Reference to Exhibit 10(ll) of
Appreciation Rights Plan. OPL's Annual Report on Form 10-K for the
Year Ended December 31, 1994
10(pp) Purchase and Sale Agreement Filed herewith.
between OPCC and The Mutual
Life Insurance Company of New
York dated August 9, 1996.
</TABLE>
E-6
<PAGE> 56
<TABLE>
<S> <C> <C>
10(qq) Bill of Sale and Assignment by and Filed herewith.
between The Mutual Life Insurance
Company of New York and
Overseas Partners (AFC), Inc.
dated August 30, 1996.
10(rr) Assignment and Assumption of Filed herewith.
Leases by and between The Mutual
Life Insurance Company of New
York and Overseas Partners (AFC),
Inc. dated August 30, 1996.
1O(ss) Assignment and Assumption of Filed herewith.
Contracts by and between The
Mutual Life Insurance Company of
New York and Overseas Partners
(AFC), Inc. dated August 30, 1996.
10(tt) Promissory Note from Overseas Filed herewith.
Partners (AFC), Inc. to The Mutual
Life Insurance Company of New
York dated October 23, 1996.
10(uu) Deed to Secure Debt, Assignment Filed herewith.
of Leases and Rents and Security
Agreement from Overseas Partners
(AFC), Inc. to The Mutual Life
Insurance Company of New York
dated October 23, 1996.
10(vv) Reserve Account Agreement from Filed herewith.
Overseas Partners (AFC), Inc. and
The Mutual Life Insurance
Company of New York dated
October 23, 1996.
10(ww) Side Letter Agreement Waiving Filed herewith.
Tax and Insurance Deposits from
The Mutual Life Insurance
Company of New York to Overseas
Partners (AFC), Inc. dated October
23, 1996.
</TABLE>
E-7
<PAGE> 57
<TABLE>
<S> <C> <C>
10(xx) Side Letter Agreement Regarding Filed herewith.
Audit Certification from The
Mutual Life Insurance Company of
New York to Overseas Partners
(AFC), Inc. dated October 23,
1996.
10(yy) One Time Transfer Letter from The Filed herewith.
Mutual Life Insurance Company of
New York to Overseas Partners
(AFC), Inc. dated October 23,
1996.
10(zz) Guarantee of Payment Related to Filed herewith.
Leasing between The Mutual Life
Insurance Company of New York
to Overseas Partners (AFC), Inc.
dated October 23, 1996.
10(aaa) Purchase and Sale Agreement Filed herewith.
between OPCC and 333 Wacker
Drive Limited Partnership dated
December 24, 1996.
10(bbb) Assignment and Assumption of Filed herewith.
Leases between Overseas Partners
(333), Inc. and 333 Wacker Drive
Limited Partnership dated
December 31, 1996.
10(ccc) Assignment and Assumption of Filed herewith.
Contracts between Overseas
Partners (333), Inc. and 333
Wacker Drive Limited Partnership
dated December 31, 1996.
10(ddd) Bill of Sale and Assignment by 333 Filed herewith.
Wacker Drive Limited Partnership
for benefit of Overseas Partners
(333), Inc. dated December 31, 1996.
</TABLE>
E-8
<PAGE> 58
<TABLE>
<S> <C> <C>
10(eee) Purchase and Sale Agreement by Filed herewith.
and among JMB Realty
Corporation, Carlyle Real Estate
Limited Partnership - XIII, Urban
Investment and Development Co.
and OPCC dated December 31,
1996.
10(fff) First Amendment to Purchase and Filed herewith.
Sale Agreement by and among JMB
Realty Corporation, Carlyle Real
First Estate Limited Partnership - XIII,
Urban Investment and
Development Co. and OPCC dated
January 23, 1997.
10(ggg) Assignment and Assumption of Filed herewith.
Membership Interest by JMB
Realty Corporation to OPCC dated
January 23, 1997.
10(hhh) Assignment and Assumption of Filed herewith.
Membership Interest by Urban
Investment and Development Co.
to OPCC dated January 23, 1997.
10(iii) Assignment and Assumption of Filed herewith.
Membership Interest by Carlyle
Real Estate Limited Partnership -
XIII to OPCC dated January 23,
1997.
10(jjj) Confirmatory Assumption and Filed herewith
Reaffirmation Agreement by and
among Copley Place Associates,
LLC, Copley Place Associates
Nominee Corporation, Copley
Funding Corporation, Copley
Financing Corporation and The
Aetna Casualty and Surety
Company dated January 23, 1997.
</TABLE>
E-9
<PAGE> 59
<TABLE>
<S> <C> <C>
10(kkk) Certificate of Borrower dated Filed herewith.
January 23, 1997.
10(111) Central Area Bill of Sale, Filed herewith.
Assignment and Assumption
Agreement by JMB Realty
Corporation, Carlyle Real
Estate Limited Partnership -
XIII, Urban Investment and
Development Co. to Copley
Place Associates LLC dated
January 23, 1997.
10(mmm) Amended and Restated Limited Filed herewith.
Liability Company Agreement
of Copley Place Associates,
LLC dated January 23, 1997.
10(nnn) Agreement of Merger between Filed herewith.
Copley Place Associates and
Copley Place Associates, LLC
dated January 23, 1997.
10(ooo) Management Agreement by and Filed herewith.
between Copley Place Associates,
LLC and Overseas Management,
Inc. dated January 23, 1997.
10(ppp) Management and Leasing Fee Filed herewith.
Subordination Agreement by and
among Copley Place Associates,
LLC, Copley Funding Corporation,
Copley Financing Corporation, The
Aetna Casualty and Surety
Company and Overseas
Management, Inc. dated January
23, 1997.
10(qqq) Agreement for Purchase of Filed herewith.
Consulting and Other Services by
and between Overseas
Management, Inc. and Urban Retail
Property Co. dated January 23,
1997.
</TABLE>
E-10
<PAGE> 60
<TABLE>
<S> <C> <C>
10(rrr) Consulting Subordination Filed herewith.
Agreement by and among Copley
Place Associates, LLC, Copley
Funding Corporation, Copley
Financing Corporation, The Aetna
Casualty and Surety Company and
Urban Retail Properties Co. dated
January 23, 1997.
(21) Subsidiaries. Filed herewith.
(23) Consent of Deloitte & Touche. Filed herewith.
(27) Financial Data Schedule. Filed herewith.
(99) Additional Exhibits.
99(a) UPS Custody Arrangements Incorporated by Reference to Exhibit 28(c) of
for OPL Common Stock. OPL's Registration Statement (on Form S-1)
No. 2-95460.
99(b) Amendment to OPL's By- Incorporated by Reference to OPL's Proxy
Laws. statement filed July 3, 1996.
99(c) OPL's Specimen Stock Filed herewith.
Certificate.
</TABLE>
E-11
<PAGE> 1
EXHIBIT 10.pp
PURCHASE AND SALE AGREEMENT
BETWEEN
THE MUTUAL LIFE INSURANCE COMPANY OF NEW YORK
AS "SELLER"
AND
OVERSEAS PARTNERS CAPITAL CORP.
AS "PURCHASER"
AUGUST 9, 1996
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
Page
<S> <C> <C>
1. Definitions ......................................................... 1
2. Purchase and Sale ................................................... 5
3. Earnest Money ....................................................... 5
3.1 Deposit of Earnest Money ...................................... 5
3.2 Release of Earnest Money ...................................... 5
4. Purchase Price ...................................................... 5
5. Closing ............................................................. 5
6. Representations and Warranties ...................................... 6
6.1 Seller's Representations and Warranties ....................... 6
6.2 Limited Scope of Seller's Representations and Warranties ...... 9
6.3 Purchaser's Representations and Warranties .................... 10
6.4 Review Period ................................................. 11
6.5 Purchaser's Indemnification ................................... 11
6.6 Service Contracts ............................................. 11
7. [INTENTIONALLY OMITTED]............................................... 12
8. Title................................................................ 12
9. Covenants of Seller ................................................. 12
10. Obligations at Closing .............................................. 14
10.1 Seller's Obligations at Closing ............................... 14
10.2 Purchaser's Obligations at Closing ............................ 15
10.3 Additional Documents .......................................... 16
11. Prorations .......................................................... 16
11.1 General ....................................................... 16
11.2 Impositions ................................................... 17
11.3 Utilities ..................................................... 17
11.4 Rents ......................................................... 18
11.5 Security Deposits ............................................. 19
11.6 Service Contracts ............................................. 19
11.7 Leasing Commissions and Tenant Improvement Costs .............. 19
11.8 Other Expenses ................................................ 19
11.9 Ad Valorem Tax Appeals ........................................ 20
</TABLE>
(i)
<PAGE> 3
<TABLE>
<S> <C> <C>
12. Conditions to Closing ............................................... 20
12.1 Purchaser's Conditions ........................................ 20
12.2 Seller's Conditions ........................................... 23
13. Fire, Casualty and Condemnation ..................................... 24
14. Remedies ............................................................ 25
14.1 Purchaser's Remedies .......................................... 25
14.2 Seller's Remedies ............................................ 25
15. Brokers ............................................................. 25
15.1 Seller's Responsibility ....................................... 25
15.2 Purchaser's Responsibility .................................... 26
15.3 Survival of Indemnity ......................................... 26
16. Miscellaneous ....................................................... 26
16.1 Modifications: Waiver ......................................... 26
16.2 Entire Agreement .............................................. 26
16.3 Notices ....................................................... 26
16.4 Governing Law ................................................. 28
16.5 Counterparts .................................................. 28
16.6 Interpretation ................................................ 28
16.7 Assignability ................................................. 28
16.8 Binding Effect ................................................ 29
16.9 Time of Essence ............................................... 29
16.10 Invalid Provisions ............................................ 29
16.11 Business Days ................................................. 29
16.12 Confidentiality ............................................... 29
16.13 Return of Documents ........................................... 29
16.14 Recording is Prohibited ...................................... 29
</TABLE>
EXHIBIT "A" - Schedule of Commission Agreements
EXHIBIT "B" - Schedule of Existing Leases
EXHIBIT "C" - Legal Description of Land
EXHIBIT "D" - Schedule of Permitted Title Exceptions
EXHIBIT "E" - Schedule of Service Contracts
EXHIBIT "F" - Schedule of Requirement Violations
EXHIBIT "G" - Schedule of Pending or Threatened Litigation
EXHIBIT "H" - Schedule of Unpaid Contractors
(ii)
<PAGE> 4
EXHIBIT "I" - Schedule of Environmental Reports
EXHIBIT "J" - Title Commitment
EXHIBIT "K" - Form of Limited Warranty Deed
EXHIBIT "L" - Form of Bill of Sale and Assignment
EXHIBIT "M" - Form of Assignment and Assumption of Leases
EXHIBIT "N" - Form of Assignment and Assumption of Contracts
EXHIBIT "O" - Form of Management Agreement
EXHIBIT "P" - Tenants From Whom Tenant Estoppels Are Required
EXHIBIT "Q" - Estoppel Letter of Department of Transportation
(iii)
<PAGE> 5
PURCHASE SALE AGREEMENT
THIS PURCHASE AND SALE AGREEMENT, made as of the 9th day of August, 1996
(hereinafter referred to as the "EFFECTIVE DATE"), by and between THE MUTUAL
LIFE INSURANCE COMPANY OF NEW YORK, a New York corporation (hereinafter referred
to as "SELLER"), and OVERSEAS PARTNERS CAPITAL CORP., a Delaware corporation
(hereinafter referred to as "PURCHASER"),
WITNESSETH:
THAT FOR AND IN CONSIDERATION of the covenants and agreements
hereinafter set forth, and for other good and valuable consideration in hand
paid, the receipt and sufficiency whereof are hereby acknowledged, the parties
hereto hereby covenant and agree as follows:
1. DEFINITIONS. In addition to the other terms defined in this Agreement,
the following terms shall have the meanings ascribed thereto in this Section 1.
"ADDITIONAL RENT" shall have the meaning ascribed thereto in Section
11.4.
"AGREEMENT" means this Purchase and Sale Agreement and any amendments
hereto made in accordance with the provisions of Section 16.1.
"ARES" means ARES, Inc., a Connecticut corporation.
"AUTHORITY" means any and all courts, boards, agencies or commissions
of any governmental unit, federal state, county, district, municipal, city
or otherwise.
"BROKER" shall mean Eastdil Realty Company, L.L.C.
"CASUALTY" shall have the meaning ascribed thereto in Section 13.
"CLOSING" means the act of consummating on the Closing Date the sale
and purchase of the Property in accordance with the requirements of this
Agreement.
"CLOSING DATE" means the date whereon the Closing occurs or would have
occurred but for the default of either of the parties to this Agreement.
"CLOSING STATEMENT" shall have the meaning ascribed thereto in Section
10.1.
<PAGE> 6
"COMMISSION AGREEMENTS" means all agreements (including any amendments
thereto) creating any obligations of Seller or any other owner of the
Property for rental, lease or other commissions payable with respect to the
Leases, as more fully described (as to the Existing Leases) in EXHIBIT "A"
attached hereto and by this reference made a part hereof.
"DAMAGE NOTICE" shall have the meaning ascribed thereto in Section 13.
"EARNEST MONEY" means the deposit made by Purchaser to Title Company
as earnest money, as more particularly provided in Section 3.1.
"EFFECTIVE DATE" shall have the meaning ascribed thereto in the first
paragraph of this Agreement.
"ENVIRONMENTAL REPORT" shall have the meaning ascribed thereto in
Section 6.2.
"ERISA" shall have the meaning ascribed thereto in Section 6.3.
"ESCROW AGREEMENT". means the Escrow Agreement entered into among
Seller, Purchaser and Title Company, dated as of the Effective Date,
pursuant to which Purchaser has placed the Earnest Money in escrow.
"ESTIMATE" shall have the meaning ascribed thereto in Section 13.
"EXISTING LEASES" means all lease, rental and occupancy agreements
(including any amendments, commencement letters and guaranties with respect
thereto) in effect as of the Effective Date with respect to any portion of
the Property, as more fully described on EXHIBIT "B" attached hereto and by
this reference made a part hereof.
"IMPOSITIONS" means all real estate and personal property taxes,
assessments, charges, excises and levies, general and special, ordinary and
extraordinary, foreseen and unforeseen of any kind and nature whatsoever
which shall be assessed, levied, charged or imposed upon or with respect to
the Property, or any portion thereof.
"IMPROVEMENTS" means all buildings, structures, fixtures and other
improvements attached to, located on or used in connection with the land,
and all appurtenances thereof (excluding however, any such items owned by
any tenants under any of the Leases and any such items owned by any public
utility or Authority pursuant to the Permitted Title Exceptions).
"INTANGIBLES" means, if and to the extent assignable, any rights which
Seller may have in any intangible assets relating to the Land, the
Improvements or the Personalty, including, without limitation, the name
"Atlanta Financial Center" (excluding, however, (a) the Leases, (b) the
Service Contracts, (c) all rights of
2
<PAGE> 7
Seller under or pursuant to this Agreement, and (d) any claims or causes of
action Seller may have against (i) any prior direct or indirect owner of
all or any portion of the Property, (ii) any prior tenants of the Property,
(iii) any current or prior manager or leasing agent of the Property, and
(iv) PPG Industries, Inc., Sunbelt Glass & Aluminum, Inc., The Beck
Company and Pace Construction Company and their affiliates relating in any
way to the spandrel glass in the portion of the Improvements known as the
"North Tower").
"LAND" means those parcels of land and appurtenances more particularly
described on EXHIBIT "C" attached hereto and by this reference made a part
hereof, together with all of Seller's right, title and interest in and to
all easements, rights-of-way, strips and gores of land, vaults, streets,
ways, alleys, passages, sewer rights, waters, water courses and water
rights, minerals, flowers, shrubs, trees, timber and other emblements now
or hereafter located on such parcel of land or under or above the same or
any part or parcel thereof or appurtenant to the title thereto, and all
estates, rights, titles, interests, privileges, tenements, hereditaments,
appurtenances, reversions and remainders whatsoever, in any way belonging,
relating or appertaining thereto.
"LEASES" means all Existing Leases (together with any modifications
thereto hereafter entered into by Seller with the approval or deemed
approval of Purchaser pursuant to Section 9, and excluding any Existing
Lease hereafter terminated by Seller with the approval or deemed approval
of Purchaser pursuant to Section 9, if such approval is required pursuant
to Section 9) and all New Leases.
"LEASING COSTS" shall have the meaning ascribed thereto in Section
11.7.
"NEW LEASES" means any lease, rental and occupancy agreement
(including any amendments, commencement letters and guaranties with respect
thereto) entered into by Seller after the Effective Date with respect to
any portion of the Property with the approval or deemed approval of
Purchaser pursuant to Section 9.
"PERMITTED TITLE EXCEPTIONS" means those matters encumbering Seller's
title to all or any portion of the Property which are set forth on EXHIBIT
"D" attached hereto and by this reference made a part hereof.
"PERSONALTY" means, if and to the extent assignable, all personal
tangible property owned by Seller and which is located on and relates to
the design, construction, ownership, use, management, leasing, maintenance,
service or operation of the Land or the Improvements, including, without
limitation, any plans, specifications, drawings, books, records, lease
files, licenses, permits, certificates of occupancy, keys, office
furniture, equipment and supplies, and janitorial service, repair,
maintenance equipment, machinery and supplies.
3
<PAGE> 8
"PLAN" shall have the meaning ascribed thereto in Section 6.3.
"PROPERTY" means the Land, the Improvements, the Intangibles, the
Leases, the Service Contracts and the Personalty, and comprises the project
commonly known as Atlanta Financial Center, consisting of approximately 9.5
acres improved with a three (3) tower office complex containing
approximately 885,889 square feet of rentable space and a multi-level
parking garage, located at 3333, 3343 and 3353 Peachtree Road, Atlanta,
Georgia 30326.
"PURCHASE PRICE" means the consideration to be paid by Purchaser to
Seller for the purchase of the Property as more fully set forth in Section
4.
"PURCHASER" shall have the meaning ascribed thereto in the first
paragraph of this Agreement.
"PURCHASER'S ACTUAL KNOWLEDGE" shall have the meaning ascribed thereto
in Section 12.1.
"REQUIREMENTS" means any and all judicial decisions, orders,
injunctions, writs, statutes, rulings, rules, regulations, permits,
certificates or ordinances of any Authority in any way applicable to Seller
or the Property.
"SELLER" shall have the meaning ascribed thereto in the first
paragraph of this Agreement.
"SELLER'S BEST KNOWLEDGE" shall have the meaning ascribed thereto in
Section 6.1.
"SERVICE CONTRACTS" means any and all existing contracts, agreements
and arrangements entered into by or on behalf of Seller (or by which Seller
or the Property is bound) for the provision of services or supplies to,
relating to or in connection with the ownership use, maintenance, operation
or leasing of the Land, the Improvements or the Personalty, as more
particularly described on EXHIBIT "E" attached hereto and by this reference
made a part hereof (excluding, however, the existing management and leasing
agreements between Seller and ARES).
"TAKING" shall have the meaning ascribed thereto to Section 13.
"TITLE COMMITMENT" shall have the meaning ascribed thereto in Section
8.
"TITLE COMPANY" means Chicago Title Insurance Company, a Missouri
corporation.
4
<PAGE> 9
2. PURCHASE AND SALE. Seller agrees to sell and convey the Property to
Purchaser, and Purchaser agrees to purchase the Property from Seller, for the
Purchase Price and on the terms and conditions hereinafter set forth.
3. EARNEST MONEY.
3.1 DEPOSIT OF EARNEST MONEY. Earnest Money of an amount equal to Five
Million and No/100 Dollars ($5,000,000.00)(hereinafter referred to as the
"EARNEST MONEY") has been deposited on or before the Effective Date in cash or
its equivalent by Purchaser with Title Company in escrow pursuant to the Escrow
Agreement. Any interest earned on the Earnest Money shall be added to and deemed
a portion of the Earnest Money and shall belong to the party ultimately entitled
to the Earnest Money as provided in this Agreement and in the Escrow Agreement.
3.2 RELEASE OF EARNEST MONEY. In the event the Closing occurs in
accordance with the terms of this Agreement, the Earnest Money shall be credited
to the Purchase Price and the Title Company shall transfer the Earnest Money to
Seller by wire transfer of immediately available U.S. Federal Funds to a bank
account in New York City to be designated by Seller, which funds shall be
received by Seller prior to 2:00 P.M. (E.D.T.) on the Closing Date. If the
Closing does not occur, the Earnest Money shall be disposed of by Title Company
pursuant to the terms of this Agreement and the Escrow Agreement.
4. PURCHASE PRICE. The purchase price to be paid to Seller by Purchaser
for the Property is One Hundred Twenty Two Million Seven Hundred Thousand
Dollars ($122,700,000.00) (hereinafter referred to as the "PURCHASE PRICE"). The
Purchase Price, less the Earnest Money and subject to prorations and adjustments
provided for in Section 11, shall be paid by Purchaser to Seller by wire
transfer of immediately available U.S. Federal Funds to a bank account in New
York City to be designated by Seller, which funds shall be received by Seller
prior to 2:00 P.M. (E.D.T.) on the Closing Date.
5. CLOSING. Provided all conditions precedent to Seller's and Purchaser's
respective obligations under this Agreement have been satisfied or waived in
writing by the party entitled to the benefit thereof, the purchase and sale of
the Property contemplated by this Agreement shall be consummated at the Closing
to take place at the offices of Jones, Day, Reavis & Pogue, Suite 3500, 303
Peachtree Street, Atlanta, Georgia 30308, or at the election of Purchaser at the
offices of Troutman Sanders LLP, Suite 5200, 600 Peachtree Street, N.E.,
Atlanta, Georgia 30308-2216, at 10:00 A.M. (E.D.T.) on September 4, 1996, or on
such earlier date and at such time on such earlier date as to which Purchaser
and Seller may hereafter agree. Seller shall deliver possession of the Property
to Purchaser at Closing, subject only to the Permitted Title Exceptions.
5
<PAGE> 10
6. REPRESENTATIONS AND WARRANTIES.
6.1 SELLER'S REPRESENTATIONS AND WARRANTIES. Wherever in this Section
6.1 a representation or warranty is qualified as being made only to
"SELLER'S BEST KNOWLEDGE", such words mean the actual current knowledge,
without investigation or inquiry (except as hereinafter expressly provided
in Section 6.1(s)), of John A. Crean, a Senior Real Estate Counsel of
Seller. Subject to such qualification, Seller represents and warrants to
Purchaser as follows:
(a) AUTHORIZATION OF AGREEMENT. The execution and delivery of
this Agreement by the signatory hereto on behalf of Seller and the
performance of this Agreement by Seller have been duly authorized by
Seller.
(b) NO VIOLATION OF REQUIREMENTS. Unless and except as set forth
on EXHIBIT "F" attached hereto and by this reference made a part
hereof, to Seller's Best Knowledge (i) there are no actions, suits, or
proceedings pending or threatened, relating to or arising out of any
actual or alleged violation or breach of any Requirement, (ii) Seller
has not received any written notice that the Property or the
development and operation thereof is in violation of any Requirement,
and (iii) the Property and the development and operation thereof are
not in violation of any Requirement; provided, however, Seller makes
no representation or warranty concerning compliance by the Property
with either (x) the Americans with Disabilities Act and the
regulations promulgated with regard thereto or (y) any Requirements
relating to hazardous or toxic substances.
(c) NO TAKING. To Seller's Best Knowledge, there are no Takings
pending or threatened with respect to the Property or any portion
thereof.
(d) REQUIREMENTS OF FIRE UNDERWRITERS. To Seller's Best
Knowledge, (i) Seller has not received any written notice of violation
from any municipal department or board of fire underwriters (or
organization exercising functions similar thereto) requiring the
performance of any work or alteration with respect to the Property
which has not been satisfied; and (ii) the Property is not in
violation of the requirements or policies of any municipal department
or board of fire underwriters (or organization exercising functions
similar thereto); provided, however, Seller makes no representation or
warranty concerning compliance by the Property with either (x) the
Americans with Disabilities Act and the regulations promulgated with
regard thereto or (y) any Requirements relating to hazardous or toxic
substances.
(e) LITIGATION. To Seller's Best Knowledge, there are no actions,
suits or proceedings of any kind or nature whatsoever, legal or
equitable, pending or threatened against or affecting Seller or the
Property, or any portion thereof, or any interest therein, relating to
or arising out of or affecting the title, ownership, management,
maintenance or operation of the Property, unless and
6
<PAGE> 11
except for matters set forth on EXHIBIT "G" attached hereto and by
this reference made a part hereof.
(f) TAX STATUS. Seller is not a "foreign person", as that term is
defined in Section 1445 of the Internal Revenue Code.
(g) LEASES. To Seller's Best Knowledge (i) Seller has delivered
to Purchaser (or offered to Purchaser for examination and copy) true
and complete copies of all of the Existing Leases, and (ii) Seller is
the current "landlord" or "lessor" under all of the Existing Leases
and owns unencumbered legal and beneficial title to the landlord's
interest in all of the Existing Leases and the landlord's interest in
the rents and income thereunder, except as may be encumbered by the
Permitted Title Exceptions.
(h) COMMISSION AGREEMENTS. To Seller's Best Knowledge, (i) Seller
has delivered to Purchaser (or offered to Purchaser for examination
and copy) true and complete copies of all of the Commission
Agreements, and (ii) all payments due by Seller under the Commission
Agreements as of the Effective Date have been paid in full or (as to
several commissions for which invoices have not yet been received)
will be paid in full by Seller prior to the Closing Date.
(i) SERVICE CONTRACTS. To Seller's Best Knowledge, (i) Seller has
delivered to Purchaser (or offered to Purchaser for examination and
copy) true and complete copies of all the Service Contracts, (ii) none
of the Service Contracts has been terminated, and (iii) Seller has
received no written claim of default, or written claim of any event
which with the passage of time or notice, or both, would constitute a
default on the part of any party to the Service Contracts.
(j) UTILITIES. To Seller's Best Knowledge, water, sanitary sewer,
storm sewer, natural gas (as to one tenant only), electricity and
telephone utilities are installed and operational to the extent
necessary for the use of the Property as office buildings of the size
and nature situated on the Land.
(k) PROCEEDINGS AFFECTING ACCESS. To Seller's Best Knowledge and
except for the Permitted Title Exceptions, there are no pending or
threatened proceedings that could reasonably be expected to have the
effect of materially impairing or restricting access between the
Property And Peachtree Road as such access currently exists.
(l) NO DEFERRED TAXES. To Seller's Best Knowledge, the Property
has not been classified under any designation authorized by law to
obtain a special low ad valorem tax rate or to receive a reduction,
abatement or deferment of ad valorem taxes which, in such case, will
result in additional or catch-up ad valorem taxes in the future in
order to recover the amounts previously reduced, abated or deferred.
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(m) CONDITION OF IMPROVEMENTS. To Seller's Best Knowledge, Seller
has received no notice from any insurance company or underwriter of
any defect that would in any way materially adversely affect the
insurability of the Property or cause an increase in insurance
premiums
(n) NO LIENS. Unless and except as set forth on EXHIBIT "H"
attached hereto and by this reference made a part hereof, to Seller's
Best Knowledge, (i) all contractors, subcontractors and other person
or entities furnishing work, labor, materials or supplies by or at the
instance of Seller for the Property have been or will be paid in full
on or before the Closing Date, and (ii) other than routine ongoing
charges pursuant to the Service Contracts, there are no claims against
the Property or Seller arising under or by virtue of the Service
Contracts.
(o) EMPLOYEES. There are no employment, collective bargaining or
similar agreements or arrangements between Seller and any of its
employees or others which will be binding on Purchaser.
(p) BANKRUPTCY. Seller is solvent and has not made a general
assignment for the benefit of creditors or been adjudicated a bankrupt
or insolvent, nor has a receiver, liquidator or trustee been appointed
or a petition filed by or against Seller for bankruptcy,
reorganization or arrangement pursuant to the Federal Bankruptcy Act
or any similar federal or state statute, or any proceedings instituted
for the dissolution or liquidation of any of them.
(q) ERISA. Seller is not a Plan.
(r) OTHER OFFERS. During the pendency of this Agreement, Seller
will not solicit or make or accept any offers to sell the Property or
any part thereof, engage in any discussions or negotiations with any
third party with respect to the sale or other disposition of the
Property or any part thereof, or enter into any contracts or
agreements (whether or not binding) regarding any disposition of the
Property or any part thereof (except, however, for New Leases or
modifications of Leases hereafter entered into pursuant to Section
9(d)).
(s) STATUS OF PERSONS WITH KNOWLEDGE. As to each matter warranted
or represented herein which is limited to Seller's Best Knowledge,
John A. Crean shall have inquired of and received responses from James
J. Mazzarelli, vice-president of ARES and the asset manager for the
Property, and Marti Blackstock vice-president of ARES and the senior
property manager for the Property, both of whom are involved in the
management of the Property, as to both such ARES employees' actual
knowledge of the accuracy of such warranties and representations (as
if such warranties and representations were being made without
qualification by "Seller's Best Knowledge").
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6.2 LIMITED SCOPE OF SELLERS REPRESENTATIONS AND WARRANTIES. Except as
expressly set forth in this Agreement or in a document or instrument
executed and delivered by Seller to Purchaser in connection with the
Closing, Purchaser acknowledges and agrees that Seller has made no
representation, warranty, or promise to Purchaser concerning:
(a) PHYSICAL CONDITION. The physical condition of the Property.
(b) FEASIBILITY. The feasibility or desirability of the purchase
of the Property.
(c) AGREEMENTS AFFECTING THE PROPERTY. The Leases, the Contracts,
the Permitted Title Exceptions and any other agreements affecting the
Property.
(d) FINANCIAL PERFORMANCE. The market status, the actual income
and operating expenses for the Property or the projected income from
or operating expenses for the Property.
(e) REQUIREMENTS. Any Requirements affecting the Property.
(f) HAZARDOUS SUBSTANCES. The presence or absence of any
hazardous or toxic substances in, on or about the Property, including
but not limited to asbestos in the Improvements.
(g) IMPLIED WARRANTIES. Any other matter whatsoever with respect
to the Property, express or implied, including, without limitation,
representations, warranties or promises regarding habitability or
merchantability or fitness for a particular purpose, or tenantability
or use.
Further, Purchaser acknowledges that (i) it has received copies of the
environmental reports, documentation and correspondence relating to the
Property which are described on EXHIBIT "I" attached hereto and by this
reference made a part hereof (hereinafter referred to collectively as the
"ENVIRONMENTAL REPORT"); (ii) it is accepting title to the Property subject
to the matters reflected in the Environmental Report; (iii) prior to the
Closing it will treat as confidential all matters reflected in the
Environmental Report; (iv) Seller has made no representation, warranty or
covenant of any nature whatsoever with respect to the Environmental Report,
including but not limited to, the completeness or accuracy of the
Environmental Report; (v) Seller shall have no liability whatsoever with
respect to the Environmental Report; (vi) the Environmental Report has been
received by Purchaser for informational purposes only, Purchaser having had
full opportunity to undertake any and all environmental reports, tests and
studies as it deems appropriate, prior to its execution of this Agreement;
and (vii) it has no right to rely upon the Environmental Report or any
portion thereof. Purchaser has undertaken such environmental reports, tests
and studies as it has deemed appropriate, and based thereon (and not on the
Environmental Report) has decided to proceed with the purchase of the
Property.
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The representations and warranties set forth in Section 6.1 and the
provisions of this Section 6.2 shall survive Closing; provided, however,
Seller shall have no liability for any breach of a representation or a
warranty given Purchaser under this Agreement, unless written notice of a
claim specifying in reasonable detail the basis therefor is given by
Purchaser to Seller within one (1) year after the Closing Date, and
further, Seller shall have no liability for any such representation or
warranty if and to the extent that Purchaser has actual knowledge of the
inaccuracy of any such representation or warranty (as if such
representation or warranty had been made without qualification by "Seller's
Best Knowledge") prior to the Closing.
6.3 PURCHASER'S REPRESENTATIONS AND WARRANTIES. Purchaser hereby
represents and warrants to Seller that:
(a) AUTHORIZATION. The execution and delivery of this Agreement
by the signatory hereto on behalf of Purchaser and the performance of
this Agreement by Purchaser have been duly authorized by Purchaser.
(b) NOT RELATED TO SELLER. Neither Purchaser, nor any partner or
stockholder of Purchaser, is an officer or director of Seller or is a
relative of an officer or director of Seller (for these purposes,
"relative" shall mean a spouse, parent or child).
(c) AS IS, WHERE IS. Subject to the representations and
warranties contained in Section 6.1 and made again on the Closing
Date, and further subject to the provisions of Section 6.2, Purchaser
is purchasing, and is willing to accept the conveyance of, the
Property on an "AS IS," "WHERE IS" basis (i.e., in the condition
existing on the Effective Date).
(d) ERISA. As of the Closing Date, (i) Purchaser will not be an
employee benefit plan as defined in Section 3(3) of the Employee
Retirement Income Security Act of 1974, as amended (hereinafter
referred to as ERISA), which is subject to Title I of ERISA, nor a
plan as defined in Section 4975(e)(1) of the Internal Revenue Code
(each of the foregoing hereinafter referred to collectively as a
"PLAN"), and the assets of the Purchaser will not constitute "plan
assets" of one or more such Plans within the meaning of Department of
Labor Regulation Section 25103-101, and (ii) if Purchaser is a
"governmental plan" as defined in Section 3(32) of ERISA, the Closing
of the sale will not constitute or result in a violation of state or
local statutes regulating investments of and fiduciary obligations
with respect to governmental plans. Purchaser has no present intent to
transfer the Property to any entity, person or Plan which will cause a
violation of ERISA Purchaser shall not assign its interest under this
Agreement to any entity, person, or Plan which will cause a violation
of ERISA.
The representations and warranties set forth in Section 6.3 shall
survive Closing; provided, however, Purchaser shall have no liability for
any breach of a representation or a warranty given Seller under this
Agreement, unless written notice of a claim specifying
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<PAGE> 15
in reasonable detail the basis therefor is given to Purchaser by Seller
within one (1) year after the Closing Date and further Purchaser shall have
no liability for any such representation or warranty if and to the extent
that Seller has actual knowledge of the inaccuracy of any such
representation or warranty prior to the Closing.
6.4 REVIEW PERIOD. Purchaser acknowledges and agrees that during the
time that this Agreement was being negotiated, it has been given full
opportunity to conduct such reviews, examinations, analyses and inspections
of the Property, the Leases, the Permitted Title Exceptions, the Service
Contracts, the Requirements and all other aspects of the Property as
Purchaser has deemed necessary or appropriate, including but not limited
to, inspections by architects, engineers and contractors. Purchaser
acknowledges and agrees that it is fully satisfied with the results of such
due diligence investigations, reviews, examinations, analyses and
inspections and that it shall have no right to terminate this Agreement
based on the results of said due diligence reviews, examinations, analyses
and inspections. Purchaser is satisfied with its reviews, examinations,
analyses and inspections and has accepted the Property in its existing
condition.
Any written reports, analyses and studies generated by third parties
retained by or on behalf of Purchaser in connection with its due diligence
reviews, analyses, investigations or examinations of the Property will be
made available to Seller without cost of Seller. This information shall be
provided upon request by Seller. Seller acknowledges that Purchaser has not
made and will not make any representation, warranty or covenant of any
nature whatsoever with respect to any such reports, analyses and studies
made available to Seller, including, but not limited to, the completeness
or accuracy of any such materials, and all such reports, analyses and
studies will be delivered to Seller without any such representation,
warranty or covenant of any nature, Purchaser shall have no liability
whatsoever with respect to any such reports, analyses and studies delivered
to Seller, and Seller will have no right to rely upon any such reports,
analyses and studies. This paragraph shall survive the termination or
expiration of this Agreement as well as the Closing.
6.5 PURCHASES INDEMNIFICATION. Purchaser shall and hereby agrees to
indemnify, defend and hold Seller free and harmless from and against all
liability, loss, cost, damage and expense (including reasonable attorneys'
fees and costs) which Seller may incur by reason of property damage,
personal injury or death, business interruption or other loss resulting
from any entry upon, or examination or investigation of, the Property made
by Purchaser (or its employees, agents, independent contractors, or any
person for whom Purchaser is legally responsible) prior to Closing, or the
filing of any mechanics' or materialmen's liens against the Property as a
result of any services performed for Purchaser prior to the Closing.
Notwithstanding any provision of this Agreement to the contrary, the
obligations of Purchaser under this Section 6.5 shall survive the Closing
and any termination of this Agreement.
6.6 SERVICE CONTRACTS. Seller, at Seller's cost and expense, shall
take whatever action is necessary to terminate as of the Closing Date (i)
those Service Contracts identified on said EXHIBIT "E" attached hereto, as
those which Purchaser desires
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to have terminated, and (ii) the existing management and leasing agreements
between Seller and ARES. All references hereinafter to Service Contracts
shall be deemed not to include those Service Contracts to be so terminated
by Seller.
7. [INTENTIONALLY OMITTED]
8. TITLE. Title Company has issued its title insurance commitment
(hereinafter referred to as the "TITLE COMMITMENT"), a copy whereof is attached
hereto as EXHIBIT "J", and by this reference made a part hereof, whereby Title
Company has committed to issue to Purchaser with regard to the Property an
owners title insurance policy in the amount of the Purchase Price, subject to
compliance with all of the requirements set forth in the Title Commitment and
subject to the Permitted Title Exceptions. Any other provision of this Agreement
to the contrary notwithstanding, Seller and Purchaser agree that those existing
deeds to secure debt, lease assignments and UCC financing statements referenced
in Item 4 of Part I Schedule B of the Title Commitment constitute Permitted
Title Exceptions as of the Effective Date, but that it shall be Seller's
obligation at its sole expense to have each of said items cancelled and released
of record on or before the Closing Date.
9. COVENANTS OF SELLER. Between the Effective Date and the Closing Date,
Seller shall:
(a) MAINTENANCE OF PROPERTY. Maintain (or cause the maintenance of)
the Property in its current condition, ordinary wear and tear and Casualty
or Taking excepted.
(b) INSURANCE. Maintain (or cause the maintenance of) all casualty,
liability and hazard insurance substantially similar to that currently in
force with respect to the Property.
(c) TITLE ENCUMBRANCES. Not cause the Property, or any interest
therein, to be alienated, encumbered (other than by mechanics' or
materialmen's liens or claims which Seller shall promptly pay or bond off)
or otherwise transferred except as expressly provided in this Agreement;
nor create or consent to the creation of any easement, restrictive covenant
or other matter affecting title to the Property (other than New Leases or
modifications of Existing Leases entered into pursuant to Section 9(d)),
without the prior written consent of Purchaser, which consent shall not be
unreasonably withheld or delayed.
(d) LEASING ACTIVITY. Not, except where required of the landlord
pursuant to the terms of any Leases, terminate or modify any of the Leases
or extend the term of any of the Leases or enter into any New Leases except
with the written consent of Purchaser, which consent Purchaser agrees not
to unreasonably withhold or delay. However, Seller shall have the right, in
Seller's sole discretion and without Purchaser's consent, to terminate any
Lease of less than 2,500 rentable square feet as to which the tenant under
such Lease is in default of
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<PAGE> 17
its rent or other monetary obligation under such Lease for more than sixty
(60) days. If Seller desires to modify any Lease (including extending the
term of any Lease or expanding the demised premises, in each case unless
pursuant to a right of the tenant contained in the Lease) or to enter into
a New Lease, Seller shall provide Purchaser with written notice thereof,
which notice shall include a copy of the proposed modification or New Lease
and the terms of any brokerage commissions payable in connection therewith.
Purchaser shall have five (5) business days after receipt of such written
notice and a copy of the proposed modification or New Lease to either
approve or disapprove the proposed modification or New Lease. If such
response from Purchaser is not received by Seller within the aforesaid
period, then Purchaser shall be deemed to have approved the proposed
modification or New Lease and the terms of any brokerage commissions
payable in connection therewith. Approval or deemed approval by Purchaser
of a New Lease shall constitute approval of any subsequent commencement
letter which is consistent with the terms of such New Lease.
(e) TENANT ESTOPPELS. Make reasonable good faith efforts to obtain on
or before the Closing Date from each tenant under each Lease, tenant
estoppel certificates in the form referred to in Section 12.1(f).
(f) NEW CONTRACTS. Except for New Leases entered into pursuant to
Section 9(d), contracts for the construction of tenant improvements under
the Leases and contracts for emergency repairs, not enter into any
contract, or modify, amend, renew or extend any existing contract, that is
or will be an obligation affecting the Property or any part thereof
subsequent to the Closing without Purchaser's prior written consent in each
instance (which Purchaser agrees not to withhold or delay unreasonably),
except contracts entered into in the ordinary course of business that are
terminable without cause (and without penalty or premium) on thirty (30)
days or less notice.
(g) ALTERATION OF PROPERTY. Except for any Casualty or Taking, not,
without the prior written consent of Purchaser, change or alter the
physical condition of the Property except for repairs in the ordinary
course of business, build-out of tenant improvements, and other changes and
alterations required by the terms of the Leases.
(h) REMOVAL AND REPLACEMENT OF PERSONALTY. Not remove from the land
and Improvements any personally owned by Seller without the prior written
consent of Purchaser, which consent will not be unreasonably withheld or
delayed, except as may be required for necessary repair or replacement, in
which case any such replacement shall be of substantially equal quality and
quantity as existed at the time of removal.
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(i) INDEMNITY RE: PERSONAL INJURY. Seller shall and hereby agrees to
indemnify, defend and hold Purchaser free and harmless from and against all
liability, loss, cost, damage and expense (including reasonable attorneys'
fees and costs) which Purchaser may incur by reason of the possible claims
for alleged personal injures described on said EXHIBIT "G" attached hereto.
The obligations of Seller under this Section 9(i) shall survive the
Closing.
10. OBLIGATIONS AT CLOSING
10.1 SELLER'S OBLIGATIONS AT CLOSING. At or prior to the Closing,
Seller shall deliver to Purchaser the following documents:
(a) DEED. Duly executed and acknowledged limited warranty deed in
the form attached hereto as EXHIBIT "K" and by this reference made a
part hereof, conveying to Purchaser marketable fee simple title to all
of the Land and the Improvements, subject to only the Permitted Title
Exceptions.
(b) BILL OF SALE AND ASSIGNMENT. Duly executed and acknowledged
limited warranty bin of sale and assignment in the form attached
hereto as EXHIBIT "L" and by this reference made a part hereof,
conveying to Purchaser Seller's interest in the Personalty.
(c) ASSIGNMENT AND ASSUMPTION OF LEASES. Duly executed and
acknowledged assignment and assumption of leases in the form attached
hereto as EXHIBIT "M" and by this reference made a part hereof,
assigning to Purchaser the landlord's interest in, to and under the
Leases, and containing an assumption by Purchaser of the landlord's
obligations under the Leases and the Commission Agreements on account
of matters first occurring or arising from and after the Closing Date.
(d) ASSIGNMENT AND ASSUMPTION OF SERVICE CONTRACTS. Duly executed
and acknowledged assignment and assumption of contracts in the form
attached- hereto as EXHIBIT "N" and by this reference made a part
hereof, assigning to Purchaser Seller's interest in, to and under the
Service Contracts and containing an assumption by Purchaser of
Seller's obligations under the Service Contracts on account of matters
first occurring or arising from and after the Closing Date.
(e) AFFIDAVIT. A sworn affidavit from an authorized officer of
Seller to the effect that Seller is not a "foreign person" as that
term is defined in Section 1445(f)(3) of the Internal Revenue Code of
1986. The form of such affidavit shall be such as may be prescribed by
federal regulation.
(f) TRANSFER TAX DECLARATION. A transfer tax declaration in the
form required of Seller by law in connection with the conveyance of
the Property to Purchaser.
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(g) LEASES AND SERVICE CONTRACTS. Original executed counterparts
of the Leases and the Service Contracts, to the extent Seller has such
original executed counterparts in its actual possession or under its
control as of the Closing Date.
(h) CLOSING STATEMENT. A statement setting forth the Purchase
Price with all adjustments shown and including a proration statement
(hereinafter referred to as the "Closing Statement").
(i) SELLER'S CERTIFICATE. A duly executed certificate of an
authorized representative of Seller indicating that all of Seller's
representations and warranties made in this Agreement are true and
correct as of the Closing Date (subject to any changes therein
expressly permitted by this Agreement) as if then made.
(j) TENANT LETTERS. Letters (in form and content reasonably
acceptable to both Seller and Purchaser) signed by Seller and
addressed to each tenant of the Property, stating that the Property
has been sold to Purchaser and that all rents should be paid to
Purchaser after the Closing Date.
(k) EVIDENCE OF AUTHORITY AND TITLE AFFIDAVIT. Evidence
acceptable to Title Company of Seller's authority to enter into the
transaction contemplated by this Agreement, and an owner's affidavit,
in form mutually acceptable to Seller and Title Company and sufficient
for Title Company to delete any exceptions for (i) mechanics' or
materialmen's liens arising from work at the Property which is the
responsibility of Seller hereunder, (ii) broker's liens arising from
brokers engaged by Seller, (iii) parties in possession, other than
tenants as tenants only, (iv) easements or claims of easements not
shown by the public records, and (v) taxes or special assessments,
including water bills, which are not shown as existing liens on the
public records.
(l) GEORGIA WITHHOLDING TAX AFFIDAVIT. An affidavit certifying
that Seller is not subject to State of Georgia withholding tax.
(m) FILES. Seller's working files with respect to matters
respecting building operations and tenant correspondence.
(n) TENANT ESTOPPEL CERTIFICATES. All tenant estoppel
certificates received by seller pursuant to Section 9.
10.2 PURCHASER'S OBLIGATIONS AT CLOSING. At the Closing, Purchaser
shall deliver to Seller the Purchase Price in the manner required by this
Agreement and shall deliver to Seller the following documents executed by
Purchaser:
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(a) TRADER TAX DECLARATION. A transfer tax declaration in the
form required of Purchaser by law in connection with the acquisition
of the Property by Purchaser.
(b) ASSIGNMENT AND ASSUMPTION OF LEASES. The assignment and
assumption of leases referenced in Section 10.1.
(c) ASSIGNMENT AND ASSUMPTION OF SERVICE CONTRACTS. The
assignment and assumption of contracts referenced in Section 10.1.
(d) THE CLOSING STATEMENT. The Closing Statement.
(e) PURCHASER'S CERTIFICATE. A duly executed certificate of
Purchaser indicating that all of Purchaser's representations and
warranties made in this Agreement are true and correct as of the
Closing Date as if then made.
(f) EVIDENCE OF AUTHORITY. Evidence acceptable to the Title
Company of Purchasers authority to enter into the transaction
contemplated by this Agreement.
(g) TENANT LETTERS. Letters from Purchaser to tenants, giving
notice of Purchaser's assumption of all of landlord's obligations
under the Leases from and after the Closing Date including all
obligations with respect to security deposits received by Purchaser
from Seller, or credited to Purchaser as an adjustment to the Purchase
Price on the Closing Statement.
(h) MANAGEMENT AGREEMENT. A management agreement between
Purchaser as owner and ARIES as manager for the leasing and management
of the Property for a period of at least twelve (12) months
immediately following the Closing Date, in the form attached hereto as
EXHIBIT "O". and by this reference made a part hereof.
10.3 ADDITIONAL DOCUMENTS. Both parties agree that they will execute
and deliver to each other such additional documents, certificates and other
matters as may be reasonably requested by either party, whether before or
subsequent to the Closing, in order to effectuate the transactions contemplated
by this Agreement and carry out the parties' intent as expressed in this
Agreement, provided that such additional documents, certificates and other
matters shall be provided without material expense to the party so providing
such items (other than the cost related to preparing or reviewing such items)
and without further liability or risk to either party.
11. PRORATIONS.
11.1 GENERAL. All prorations between the Seller and Purchaser will be
effected in accordance with the provisions of this Section 11. If the proration
of an item subject to proration is not specifically provided for herein, it is
the intention of Seller
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and Purchaser that at Closing, all income and expenses with respect to the
Property, and applicable to the periods of time before and after the Closing
Date, determined in accordance with generally accepted accounting principles
consistently applied, shall be allocated between Seller and Purchaser
respectively as of the close of the day immediately preceding the Closing Date.
Except as otherwise provided in this Agreement, Seller shall be entitled to all
income from the Property and shall be responsible for all expenses of the
Property for the period up to the close of the day immediately preceding the
Closing Date, and Purchaser shall be entitled to all income from the Property
and responsible for all expenses of the Property for the period of time after
the close of the day immediately preceding the Closing Date. Such adjustments
shall be shown on the Closing Statement (with such supporting documentation as
the parties hereto may require being attached as exhibits to the Closing
Statement) and shall increase or decrease (as the case may be) the Purchase
Price. If accurate allocations cannot be made at Closing because current bills
are not obtainable (as, for example, in the case of utility bills), Seller and
Purchaser shall allocate such income or expenses at Closing on the best
available information, subject to adjustment upon receipt of the final bill or
other evidence of the applicable income or expense. Any income received or
expense incurred by Seller or Purchaser with respect to the Property after the
Closing Date shall be promptly allocated in the manner described herein and
Seller and/or Purchaser shall promptly pay or reimburse any amount due.
Notwithstanding anything contained in any other provision of this Section 11 to
the contrary, base rent, Additional Rent (as hereinafter defined) and other
items of income from the Property shall be prorated only to the extent that the
same have actually been collected (or, as to delinquent rent, are actually
collected subsequent to Closing).
11.2 IMPOSITIONS. Impositions shall be prorated as of the close of the
day immediately preceding the Closing Date. If any Impositions for the calendar
year in which the Closing occurs have not been determined on the Closing Date,
the proration of Impositions shall be based upon the Impositions assessed
againstthe Property for the calendar year immediately preceding the calendar
year in which the Closing occurs. After the actual amount of Impositions for the
year of the Closing is known, Seller and Purchaser shall readjust the amount of
the Impositions to be paid by each party so that Seller shall pay only the
actual amount of Impositions attributable to the period occurring prior to and
including the Closing Date and Purchaser shall pay only the actual Impositions
attributable to the period subsequent to the Closing Date. Any Impositions
imposed after the Closing Date which are attributable to periods prior to and
including the Closing Date, including, but not by way of limitation, any
incurred taxes resulting from the resolution of pending tax disputes, shall be
paid by Seller and any refunds or rebates which are attributable to periods
prior to the Closing Date shall be paid to seller.
11.3 UTILITIES. Amounts due for all electric, gas, sewer, water,
telephone and other utilities, and for all Service Contracts for the period
prior to and including the Closing Date shall be determined when the actual
bills have been received by Purchaser. The bills and amounts shall be prorated
as of the close of the day immediately preceding the Closing Date. Seller's
pro-rata share of these expenses will be paid to Purchaser
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within ten days after receiving notice of the amounts due. Prior to or at the
Closing, Purchaser and Seller shall notify all public and private utilities
providing services to the Property of the change in ownership, and direct that
all future billings be made to Purchaser or its designee, at a specified
address, with no interruption of service. Seller and Purchaser shall cooperate
in taking whatever action is necessary to insure that any and all prepaid
deposits or rents on all public and private utilities or services which serve
the Property are refunded to Seller by the utility company. If such refunds are
not made prior to Closing, the applicable deposits or rents shall be assigned to
Purchaser at Closing and Seller shall receive a credit to the Purchase Price for
the amount thereof.
11.4 RENTS. All base rent under the Leases, any percentage rent under
retail leases, and other charges under the Leases, including, without
limitation, payments by tenants for amortization of tenant improvements costs,
all tenant contributions relating to Impositions, operating expenses, insurance
premiums, common area maintenance charges and similar "pass-through" items and
cost-of-living or other adjustments based on the Consumer Price Index or similar
statistics, and all other items of income derived from the operation of the
Property (all such charges other than base rent are herein referred to as
"ADDITIONAL RENT") shall be prorated as of the close of the day immediately
preceding the Closing Date. Rentals are "delinquents" when payment thereof is
due prior to the Closing Date but has not been made by the Closing Date. Seller
shall have no right to collect delinquent rentals directly from Tenants, and
Purchaser shall have no obligation to evict or otherwise exercise any remedies
against any tenants owing delinquent rentals. Seller shall not be entitled to
any of the rentals received by Purchaser on and after the Closing Date from
tenants owing delinquent rentals unless such tenants shall be current in their
rental obligations for periods occurring from and after the Closing Date. In
that case, Purchaser shall deliver to Seller any rentals, net of the costs of
collection, received by Purchaser which are designated by the tenant as payment
for or are attributable to delinquent rentals for rental periods occurring prior
to the Closing Date. If, however, delinquent rentals are not collected from the
tenants owing such delinquent rentals, Purchaser shall not be liable to Seller
for such delinquent rentals. Purchaser shall be solely responsible for the
collection of delinquent rents, but shall not be required to take any action for
the collection of such delinquent rents other than billing for the same and
employing such other efforts as are consistent with the ordinary and customary
conduct of Purchaser's business (but without any requirement to employ a
collection agency or to institute legal proceedings of any sort), and shall not
be liable to Seller for any failure to collect delinquent rents. All rentals
received after the Closing Date shall be applied after payment of collection
costs, first to rentals attributable to the period beginning on the Closing Date
and thereafter, and subsequently, to the period prior to the Closing Date. To
the extent that the Leases provide for the adjustment of previously paid
estimated amounts of Additional Rent for the period prior to Closing on a date
subsequent to the Closing Date, Seller shall be entitled to receive, or shall be
responsible to pay, as the case may be, its pro-rata share of any such adjusted
amounts which are applicable to periods ending prior to the Closing Date.
Purchaser shall be solely responsible for the collection of such adjustments,
but shall not be liable to Seller for its failure to do so.
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Seller shall have access to the books and records of Purchaser (as
they relate to the Property only) at reasonable times during normal business
hours for the period from the Closing Date through March 31, 1997, solely for
purposes of verifying and/or auditing proration amounts payable to or payable by
Seller for base rent, and/or other items of Additional Rent in accordance with
the provisions of this Section 11. The provisions of this Section 11 having to
do with post-closing adjustments and the payment of any deficiencies in
prorations effected at Closing, including without limitation the provisions of
this paragraph, shall survive the Closing for twelve (12) months.
11.5 SECURITY DEPOSITS. All security deposits (including, without
limitation, all rent deposits, cleaning deposits, utility deposits and damage
deposits) deposited by tenants under the Leases, together with such interest
accrued thereon as may be required by law or agreement or otherwise, shall, to
the extent not previously applied by Seller in accordance with the Leases, be
credited to Purchaser as an adjustment to the Purchase Price on the Closing
Statement or transferred by Seller to Purchaser upon Closing.
11.6 SERVICE CONTRACTS. All amounts due or payable under the Service
Contracts shall be prorated as of the close of the day immediately preceding the
Closing Date.
11.7 LEASING COMMISSIONS AND TENANT IMPROVEMENT COSTS. The cost of
all leasing commissions and tenant finish work (hereinafter referred to as
"LEASING COSTS") which are due and payable as of the close of the day
immediately preceding the Closing Date, attributable only to the current
non-cancelable terms under Existing Leases as of the date hereof (and not to any
future extensions, renewals or expansions thereof) shall be the sole and
exclusive obligation of Seller. Purchaser shall pay Leasing Costs and be
responsible for all other expenditures, leasing concessions, etc. under
modifications of Existing Leases and under New Leases which have been approved
by Purchaser during the period from the Effective Date until the Closing Date
and for any renewal or extension thereof (including an extension resulting from
a tenant's failure to exercise a right under its Lease to cancel a portion of
the term of such Lease) or expansion thereof or entered into, and/or approved by
Purchaser subsequent to the Effective Date. Purchaser shall be entitled to
receive, as a credit on the Closing Statement, all payments received by Seller
after the Effective Date (i) from tenants under New Leases, (ii) from tenants
under Existing Leases which are renewed after the Effective Date, as to payments
which relate to a period from and after the commencement of the renewal term,
and (iii) from tenants under Existing Leases which are expanded after the
Effective Date, as to payments which relate to the expansion portion of the
demised premises.
11.8 OTHER EXPENSES. Seller shall be responsible for and shall pay all
transfer and recording taxes due in connection with the recording of the limited
warranty deed. Purchaser shall pay all charges for title examination and
certification, all charges of Title Company for the title insurance policy to be
issued at Closing, all recording fees for all documentation to be recorded at
Closing, all costs for updating the Survey, the
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costs of all appraisal, engineering and environmental reports which Purchaser
may have ordered, and all costs relative to any financing Purchaser may have
arranged, including, without limitation, any intangible recording taxes. Except
as otherwise provided in this Section 11, each party shall be responsible for
all fees, costs and expenses incurred by it in connection with this transaction,
including expenses for legal and accounting services.
11.9 AD VALOREM TAX APPEALS. The parties acknowledge (i) that Seller
is currently appealing the ad valorem tax assessments for the Property for both
1995 and 1996 and has employed The Stallings Group to assist in prosecuting such
appeal, and (ii) that it is in the best interest of Seller and Purchaser to
continue such appeal. Accordingly, Purchaser and Seller agree (i) that both
Seller and Purchaser will cooperate in good faith in prosecuting such appeal,
(ii) that ARES, as property manager, shall have primary responsibility for
coordinating the work of The Stallings Group, (iii) that the cost of utilizing
The Stallings Group with regard to the appeal of 1995 taxes shall be borne
solely by Seller and any ad valorem tax adjustment for 1995 shall belong solely
to Seller, and (iv) that the cost of utilizing The Stallings Group with regard
to the appeal of 1996 taxes as well as any ad valorem tax adjustment for 1996
shall be prorated between Seller and Purchaser as of the close of the day
immediately preceding the Closing Date.
Purchaser and Seller shall, on the Closing Date, execute and deliver the
Closing Statement with prorations shown thereon for the Property. The Closing
Statement shall be in form reasonably acceptable to Purchaser and Seller. Any
net proration due to Purchaser shall be a credit against the Purchase Price. Any
net proration due to Seller shall be paid to Seller by Purchaser at Closing by
wire transfer as herein provided. Notwithstanding anything in this Agreement to
the contrary, all obligations with respect to the payment and adjustment after
Closing of prorated items shall survive the Closing for a period of twelve (12)
months.
12. CONDITIONS TO CLOSING.
12.1 PURCHASER'S CONDITIONS The obligation of Purchaser to
consummate the transaction contemplated by this Agreement is conditioned upon
full satisfaction by Seller or written waiver by Purchaser of the following
conditions precedent as of the Closing Date:
(A) SELLER'S REPRESENTATIONS AND WARRANTIES. Other than as
expressly provided in this Agreement, all representations and
warranties of Seller made herein remain true and correct (without such
representations and warranties being limited to Seller's Best
Knowledge);
(B) SELLER'S OBLIGATIONS AND COVENANTS. Seller shall have
performed all of the obligations and covenants undertaken by Seller in
this Agreement to be performed by Seller at or prior to the Closing.
(C) SELLER'S CLOSING DOCUMENT. Seller shall have delivered
to Purchaser all of the documents enumerated in Section 10.1.
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(D) CONDITION OF IMPROVEMENTS. The Improvements (including
but not limited to the mechanical systems, plumbing, electrical,
wiring, appliances, fixtures, heating, air conditioning and
ventilating equipment, elevators, boilers, equipment, roofs,
structural members and furnaces) shall be at Closing in substantially
the same condition as on the Effective Date except for normal wear and
tear and such damage from Casualty or Taking as is waived or accepted
under Section 13.
(E) STATUS OF ZONING. The status of the zoning of the
Property shall be the same in all material respects as on the
Effective Date; there shall not be pending at Closing with any
Authority, an application (filed by someone other than Seller or any
prior owner of the Property), ordinance or similar matter to effect a
material adverse change in the zoning of any of the Property; and
there shall not be pending at Closing with any Authority, an
application filed by Seller or any prior owner of the Property to
effect any change (whether or not material or adverse) in the zoning
of any of the Property.
(F) TENANT ESTOPPELS. Seller shall have delivered to
Purchaser estoppel certificates in the form as to each tenant agreed
to between Seller and Purchaser simultaneously herewith, without
material variation, executed by tenants for Leases which in the
aggregate comprise at least 80% of the leased square footage of the
Improvements and which must include estoppel certificates from those
tenants listed on Exhibit "P" attached hereto and by this reference
made a part hereof (excluding for the purposes of the calculation of
such percentages any estoppel certificate received from a tenant that
is in default by thirty (30) days or more in the payment of rent or
otherwise in material default under its Lease or that discloses that
such tenant is, or is discovered to be, in bankruptcy, whether
voluntary or involuntary), provided, however, that Seller may at its
option substitute an estoppel certificate from Seller for any estoppel
certificate not obtained from any tenant (in which event Seller will
warrant the accuracy of the information contained in such Seller's
estoppel certificates, which warranty shall survive the Closing for a
period of twelve (12) months thereafter), provided that in any event
Seller's estoppel certificates shall comprise no more than 25% of the
leased square footage of the Improvements. With respect to any
Seller's estoppel certificate given pursuant to this paragraph, Seller
may replace such estoppel certificate (and warranty with respect
thereto) with a tenant estoppel certificate obtained after Closing,
provided such tenant estoppel certificate is effective to a date not
more than fifteen (15) days prior to delivery to Purchaser.
(G) ENVIRONMENTAL. From and after the Effective Date and
prior to the Closing, there shall not have been (i) a release of a
hazardous or toxic substance on or from the Property in violation of
any applicable Requirements which has not been fully remediated, (ii)
the issuance by any applicable Authority of any clean-up, remediation,
monitoring or similar order with respect to the Property, or (iii) the
occurrence of any other state of facts or condition at or near
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the Property which, in Purchaser's reasonable determination, creates
an imminent threat to the environmental condition of the Property
(H) COMMISSION AGREEMENTS. There shall be no agreements
creating obligations of the owner of the Property to pay rental, lease
or other commissions with respect to the Existing Leases other than as
set forth in the Commission Agreements.
(I) NO OTHER AGREEMENTS. The Leases shall be the only leases
affecting the Property, and except for the Leases, the Service
Contracts and the Permitted Exceptions, there shall be no service
contracts, management agreements or other agreements or instruments in
force and effect, oral or written, that grant to any person whomsoever
or any entity whatsoever any right, title, interest or benefit in or
to all or any part of the Property or any rights relating to the use,
operation, management, maintenance or repair of all or any part of the
Property which will survive the Closing or be binding upon Purchaser
and which could reasonably be expected to have a material adverse
effect upon the use or value of the Property.
(J) NO ASSESSMENTS. From and after the Effective Date and
prior to the Closing, no assessments (other than ad valorem taxes)
shall have been made against the Property that remain unpaid, whether
or not constituting liens.
(K) LEASE DEFAULTS. None of the tenants listed on said
Exhibit "P" attached hereto shall be in default by thirty (30) days or
more in the payment of rent or otherwise in material default under the
applicable Leases, tenants under Leases which in the aggregate
comprise 90% of the leased square footage of the Improvements shall
not be in default by thirty (30) days or more in the payment of rent
or otherwise in material default under the applicable Leases, and no
tenant shall have claimed or asserted any material default by the
landlord under any Lease.
(1) DECLARATIONS. There shall exist no material default, or
claim of material default, or any event which with the passage of time
or notice, or both, would constitute a material default or material
breach on the part of Seller under any declaration of easements and/or
restrictive covenants affecting the Property or under any other
Permitted Title Exception; and there shall exist no material default,
or claim of material default, or any event which with the passage of
time or notice, or both, would constitute a material default or
material breach thereunder on the part of any other party whose
property is encumbered or benefited by any such Permitted Title
Exception.
(m) DOT ESTOPPEL. Seller shall have obtained from the
Department of Transportation of the State of Georgia and shall have
delivered to Purchaser an estoppel letter in the form attached hereto
as Exhibit "Q" and by this reference made a part hereof, without
material variation from such form.
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If any of the above conditions precedent is not satisfied as of the Closing
Date, Purchaser in its sole discretion and as its sole remedy (except as to any
condition which is not satisfied as a result of any default hereunder by Seller,
in which event Purchaser shall also have the remedies specified in Section 14.1)
may terminate this Agreement by written notice to Seller, and the Earnest Money
shall be promptly returned to Purchaser. Notwithstanding the foregoing, if and
to the extent there is within Purchaser's Actual Knowledge on the Effective Date
any fact or circumstance with regard to paragraphs (a), (e), (h), (i), (k) or
(l) which, if unchanged on the Closing Date would entitle Purchaser to terminate
this Agreement, Purchaser hereby waives its right to terminate this Agreement as
a result of any such fact or circumstance. Further, if from and after the
Effective Date and prior to the Closing Date Purchaser's Actual Knowledge
expands to include any fact or circumstance which if unchanged by the Closing
Date would permit Purchaser to terminate this Agreement pursuant to this Section
12.1, Purchaser shall be deemed to have waived such termination right as to such
fact or circumstance unless Purchaser gives written notice of such fact or
circumstance to Seller within five (5) business days after Purchaser first
develops such actual knowledge of such fact or circumstance.
For purposes of this Agreement, "PURCHASER'S ACTUAL KNOWLEDGE" shall be
deemed to mean in the aggregate (i) any fact or circumstance within the actual
knowledge of either Leopold A. Schmidt or Thomas E. Butler, both officers of
Purchaser, (ii) any fact or circumstance within the actual knowledge of either
James W. Addison, A. Michelle Willis or Wendelin W. Silliman, all of Troutman
Sanders LLP, counsel for Purchaser, (iii) any fact or circumstance reflected in
any written report furnished to Purchaser by Deloitte & Touche LLP in connection
with Purchaser's purchase of the Property, (iv) any fact or circumstance
reflected in any written report furnished to Purchaser by Wilson & Strickland,
Inc. in connection with Purchaser's purchase of the Property, and (v) any fact
or circumstance reflected in any written report furnished to Purchaser by ATC
Environmental, Inc. in connection with Purchaser's purchase of the Property.
12.2 SELLER'S CONDITIONS. The obligations of Seller to consummate
the transaction contemplated by this Agreement are conditioned upon satisfaction
or written waiver by Seller of the following conditions precedent as of the
Closing Date:
(A) PURCHASER'S REPRESENTATIONS AND WARRANTIES. All
representations and warranties of Purchaser made herein remain true
and correct.
(B) PURCHASER'S OBLIGATIONS AND COVENANTS. Purchaser shall
have performed all of the obligations and covenants undertaken by
Purchaser in this Agreement to be performed by Purchaser at or prior
to the Closing.
(C) PURCHASER'S CLOSING DOCUMENTS. Purchaser shall have
delivered to Seller all of the documents enumerated in Section 10.2.
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(D) PAYMENT OF PURCHASE PRICE. Purchaser (and Title Company,
as to the Earnest Money) shall have wire transferred to Seller the
Purchase Price (as adjusted pursuant to this Agreement) in accordance
with this Agreement.
13. FIRE, CASUALTY AND CONDEMNATION. The risk of loss, damage or
destruction to the Property by fire or other casualty until the Closing is
retained by Seller, but without any obligation or liability by Seller to repair
or restore the Property. If at any time between the Effective Date and the
Closing Date, any portion of the Property is destroyed or damaged as a result of
fire or any other casualty (hereinafter collectively referred to as a
"CASUALTY"), Seller shall promptly give written notice thereof (hereinafter
referred to as a "DAMAGE NOTICE") to Purchaser, including as soon thereafter as
is feasible a statement by an independent third party acceptable to Purchaser
and Seller of its estimate (hereinafter referred to as an "ESTIMATE") of the
cost of fully repairing and restoring the Property (to the extent practicable)
to the condition which existed prior to the Casualty. If the Estimate is for
less than One Million Dollars ($1,000,000), then neither party shall be entitled
to terminate this Agreement as a result of such Casualty except that Purchaser
shall be entitled at its sole option to terminate this Agreement upon written
notice to Seller, if such Casualty is so extensive as to allow any tenants of
the Property to terminate their Leases on account of such damage or destruction
(and, as a result, tenants with an aggregate of 25,000 or more rentable square
feet actually terminate or have the right to terminate as of or subsequent to
Closing and do not waive such right in writing prior to Closing) or if tenants
of 25,000 rentable square feet or more in the aggregate are entitled to an
abatement of rent under their Leases and Seller's rights under any rent loss
insurance policy covering the Property are not assignable to Purchaser or will
not result in payment of proceeds equal to or greater than such rent abated
throughout the period of restoration and repair of the Casualty. If the Estimate
is for One Million Dollars ($1,000,000) or more, then Purchaser shall be
entitled at its sole option to terminate this Agreement upon written notice to
Seller given by Purchaser within ten (10) days after Purchaser receives the
Estimate; and if Purchaser fails to give such termination notice, then neither
party shall be entitled to terminate this Agreement as a result of such
Casualty. If at any time prior to Closing, all or any material part of the
Property is subjected to a bona fide threat of condemnation by a body having the
power of eminent domain or is taken by eminent domain or condemnation (or sale
in lieu thereof), or if Seller receives notice that any condemnation, action or
proceeding with respect to any material portion of the Property is contemplated
by a body having the power of eminent domain (hereinafter collectively referred
to as a "TAKING"), Seller shall give Purchaser immediate written notice of such
Taking, and Purchaser may, by written notice to Seller at any time prior to
Closing, terminate this Agreement. If this Agreement is terminated by Purchaser
as above provided as a result of a Casualty or Taking, the Earnest Money shall
be refunded to Purchaser and neither party shall have any further liability
under this Agreement except for matters expressly stated in this Agreement to
survive termination of this Agreement. If this Agreement shall not be terminated
following a Casualty or Taking, then there shall be no abatement in the Purchase
Price, and in lieu of any such abatement, (i) Seller shall execute, acknowledge
and deliver to Purchaser at the Closing, an assignment, expressly made without
representation or warranty by Seller and without recourse to Seller, of Seller's
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interest in any net insurance (including rent loss insurance) or condemnation
proceeds (that is, after expense of collection) which may be payable to Seller
as a result of such Casualty or Taking, subject, however to Seller's right to
receive reimbursement therefrom of any amounts paid or incurred by Seller for or
on account of repairs and/or restoration of the Property prior to the Closing
and (ii) Purchaser shall be entitled to a credit against the Purchase Price in
the amount of any deductible or uninsured amount applicable to the proceeds of
insurance with respect to such damage.
14. REMEDIES.
14.1 PURCHASER'S REMEDIES. If Seller should breach, or be in
default under, this Agreement and Purchaser is not in default in the
performance of its obligations under this Agreement, and if Seller
shall fail to cure such breach or default within five (5) days after
receipt from Purchaser of written notice thereof, Purchaser shall be
limited to the right to (whichever Purchaser elects and as its sole
and exclusive remedy):
(a) seek specific performance of this Agreement;
(b) terminate this Agreement and receive its Earnest
Money from Seller as its sole and exclusive remedy; or
(c) waive such breach or default and proceed to
Closing.
In no event shall Purchaser be entitled to bring an action for damages against
Seller as a result of such breach or default.
14.2 SELLER'S REMEDIES. If Purchaser should breach, or be in
default under, this Agreement and Seller is not in default in the performance of
its obligations under this Agreement, and if Purchaser shall fail to cure such
breach or default within five (5) days after receipt from Seller of written
notice thereof, Seller's sole remedy shall be to receive from Title Company the
Earnest Money as liquidated damages occasioned by such breach, such amount
having been agreed to by the parties as a good faith estimate of Seller's actual
damages, which damages are difficult to ascertain, as its sole and exclusive
remedy. Seller hereby waives and releases any right to (and covenants that
Seller shall not) sue Purchaser for specific performance of this Agreement or to
recover actual or other damages in excess of the Earnest Money.
15. BROKERS.
15.1 SELLER'S RESPONSIBILITY. Seller warrants to Purchaser
that Seller has dealt with no broker, salesperson or finder with respect to this
Agreement or the transactions contemplated herein, other than Broker, for which
Seller shall be responsible. Seller shall indemnify, protect, defend and hold
Purchaser harmless from and against all claims, losses, costs, expenses and
damages (including attorneys' fees and costs) resulting from a breach of the
foregoing warranty.
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15.2 PURCHASER'S RESPONSIBILITY. Purchaser warrants to Seller
that Purchaser has dealt with no broker, salesperson or finder with respect to
this Agreement or the transactions contemplated herein, other than Broker.
Purchaser shall indemnify, protect, defend and hold Seller harmless from and
against all claims, losses, costs, expenses and damages (including attorneys'
fees and costs) resulting from a breach of the foregoing warranty.
15.3 SURVIVAL OF INDEMNITY. Notwithstanding any provision of this
Agreement to the contrary, the obligations of the parties under this Section 15
shall survive the Closing or any termination of this Agreement. At the Closing
each party shall provide Title Company with an affidavit confirming its
representations under this Section 15.
16. MISCELLANEOUS.
16.1 MODIFICATIONS: WAIVER. No waiver, modification, amendment,
discharge, termination or change of this Agreement shall be valid unless the
same is in writing and signed by the party against whom the enforcement of such
waiver, modification, amendment, discharge, termination or change is sought.
16.2 ENTIRE AGREEMENT. This Agreement and the Escrow Agreement
constitute the entire understanding between the parties with respect to the
transactions contemplated herein, and all prior or contemporaneous oral
agreements, understandings, representations and statements, and all prior
written agreements, understandings, representations, statements, letters of
intent and summaries of terms are merged into this Agreement and the Escrow
Agreement. Without limiting the foregoing, this Agreement expressly supersedes
and replaces that certain letter of intent dated June 28, 1996 entered into
between Seller and Purchaser.
16.3 NOTICES. Any notice, demand or request which may be
permitted, required or desired to be given in connection with this Agreement
shall be given in writing and directed to Seller and Purchaser as follows:
IF INTENDED FOR SELLER:
ARES Realty Capital, Inc.
5775-E Glenridge Drive Suite 100
Atlanta, Georgia 30328
Attn: Senior Vice President - Regional Head
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with a copy to:
The Mutual Life Insurance Company
of New York
c/o ARES Realty Capital, Inc.
One Atlantic Street
Stamford, Connecticut 06901
Attn: Stephen DeNardo
with a copy to
The Mutual Life Insurance Company
of New York
c/o ARES Realty Capital, Inc.
5775-E Glenridge Drive Suite 100
Atlanta, Georgia 30328
Attn: John A. Crean, Esq.
with a copy to:
Alvis E. Campbell, Esq.
Jones, Day, Reavis & Pogue
Suite 3500
303 Peachtree Street, N.E.
Atlanta, Georgia 30308-3242
IF INTENDED FOR PURCHASER:
Overseas Partners Capital Corp.
115 Perimeter Center Place
Suite 940
Atlanta, Georgia 30346
Attn: Bruce M. Barone
President
WITH A COPY TO:
Overseas Partners Capital Corp.
115 Perimeter Center Place
Suite 940
Atlanta, Georgia 30346
ATTN: Thomas E. Butler, Esq.
Vice President
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and with a copy to:
James W. Addison, Esq.
Troutman Sanders LLP
600 Peachtree Street, N.E.
Suite 5200
Atlanta, Georgia 30308-2216
or at such other address or to such other party which any party entitled to
receive notice hereunder designates to the other in writing from time to time.
Notices shall be sent by nationally recognized overnight courier, for next
business day delivery, and shall be deemed delivered on the date shown on the
receipt unless delivery is refused or delayed by the addressee, in which event
delivery shall be deemed to occur on the date of refusal.
16.4 GOVERNING LAW. The validity, meaning and effect of this
Agreement shall be determined in accordance with and governed by the laws of the
State of Georgia, without giving effect to the principles of conflict of laws
thereof.
16.5 COUNTERPARTS. This Agreement may be executed in two or more
counterparts, and so long as each party has signed at least one counterpart,
each counterpart shall be deemed an original, but all of which together shall
constitute one and the same instrument.
16.6 INTERPRETATION.This Agreement shall not be construed more
strictly against one party than against the other merely by virtue of the fact
that it may have been prepared by counsel for one of the parties, it being
recognized that both Seller and Purchaser have contributed substantially and
materially to the preparation of this Agreement. The captions in this Agreement
are inserted for convenience and reference only and shall in no way affect,
define, describe or limit the scope or intent of this Agreement or any of the
provisions hereof. Unless the context otherwise requires, (i) "or" is
disjunctive but not necessarily exclusive, (ii) words in the singular include
the plural and vice versa- and (iii) the word "including" and similar terms
following any statement will not be construed to limit the statement to the
matters listed after such word or term, whether a phrase of nonlimitation such
as "without limitations" is used. All references to "$" or dollar amounts are to
lawful currency of the United States of America.
16.7 ASSIGNABILITY. Neither Seller nor Purchaser shall have the
right, without the other party's prior written consent, which consent may be
withheld in such other party's sole discretion, to assign or transfer any of the
rights, obligations and interests under this Agreement prior to the Closing.
Notwithstanding the foregoing, (a) Seller shall not unreasonably withhold its
consent to an assignment by Purchaser of its interest under this Agreement to a
wholly owned subsidiary of Purchaser, (i) provided Purchaser provides Seller
with reasonably satisfactory evidence that the net worth of such
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<PAGE> 33
subsidiary will be sufficient on the Closing Date to enable it to perform its
obligations under this Agreement, and (ii) provided it is not necessary to
extend the Closing Date in order to accommodate such assignment to Purchaser's
subsidiary, and (b) Purchaser shall be entitled to assign its interest under
this Agreement to a wholly owned subsidiary of Purchaser, provided such
assignment is made effective as of the Closing Date and will be effective only
if the Closing is effected.
16.8 BINDING EFFECT. Subject to the limitations of Section 16.7,
this Agreement shall be binding upon and inure to the benefit of the parties
hereto and their respective legal representatives, successors and permitted
assigns.
16.9 TIME OF ESSENCE. Seller and Purchaser agree that time shall
be of the essence of this Agreement, and of every obligation and undertaking
under this Agreement.
16.10 INVALID PROVISIONS. In the event any term or provision of
this Agreement shall be held illegal, unenforceable or inoperative as a matter
of law, the remaining terms and provisions of this Agreement shall not be
affected thereby, but each such remaining term and provision shall be valid and
shall remain in full force and effect, unless the intent of the parties
hereunder cannot reasonably be accomplished under the resulting agreement.
16.11 BUSINESS DAYS. If any date herein set forth for the
performance of any obligations by Seller or Purchaser or for the delivery of any
instrument or notice as herein provided should be on a Saturday, Sunday or legal
holiday, the compliance with such obligations or delivery shall be deemed
acceptable on the next business day following such Saturday, Sunday or legal
holiday. As used herein, the term "LEGAL HOLIDAY" means any state or federal
holiday for which financial institutions or post offices are generally closed in
the State of Georgia
16.12 CONFIDENTIALITY. No press release or other disclosure
(except to the extent required by law or necessary to complete the transaction
contemplated hereby) regarding the purchase and sale contemplated hereby will be
issued or made by either party without the prior written consent of both
parties.
16.13 RETURN OF DOCUMENTS. In the event the transaction
contemplated hereby fails to close for any reason, all documents provided to
Purchaser by Seller shall be promptly returned to Seller.
16.14 RECORDING IS PROHIBITED. The parties agree that recording
this Agreement or a memorandum or notice thereof is prohibited and will not be
undertaken by either party.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the Effective Date.
SELLER:
THE MUTUAL LIFE INSURANCE COMPANY
OF NEW YORK, a New York corporation
By: /s/ Bruce C. Fernald
----------------------------
Bruce C. Fernald,
ARES Realty Capital, Inc.
Authorized Showy
PURCHASER:
OVERSEAS PARTNERS CAPITAL CORP., a
Delaware corporation
By: /s/ Bruce M. Barone
----------------------------
Name: Bruce M. Barone
Title: President & CEO
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EXHIBIT "A"
SCHEDULE OF COMMISSION AGREEMENTS
SOUTH TOWER
1. Registration and Commission Agreement between Atlanta Financial Center
Associates and Davidson Associates Inc. dated January 4, 1993 for Fellows,
Johnson, Davis & Labriola lease.
2. Registration and Commission Agreement between Atlanta Financial Center
Associates and The Sharp Boylston Companies dated June 28, 1993 for
Sedgwick James of Georgia, Inc. lease.
3. Registration and Commission Agreement between Two Atlanta Financial Center
Associates and Cauble and Company dated August 23, 1991 for The Gallup
Organization, Inc. lease.
4. Registration and Commission Agreement between Atlanta Financial Center
Associates and Richard Bowers & Company dated May 29, 1992 for Higgins &
Dubner lease.
5. Registration and Commission Agreement between Atlanta Financial Center
Associates and William Leonard & Co. dated March 13, 1990 for Hughes
Advertising lease.
6. Commission Agreement between The Mutual Life Insurance Company of New York
and Carter & Associates, L.L.C. dated December 21, 1995 for MCIMetro Access
Transmission Services, Inc. lease.
7. Registration and Commission Agreement between Two Atlanta Financial Center
Associates and Meridian Property Group, Ltd. dated July 10, 1989 for Martin
Rubin and Robert Wildau lease.
8. Registration and Commission Agreement between Atlanta Financial Center
Associates and Cushman & Wakefield of Georgia, Inc. dated June 30, 1993 for
Ruys & Company lease.
9. Registration and Commission Agreement between The Mutual Life Insurance
Company of New York and Jenny Pruitt & Associates dated March 15, 1994 for
Titus & Donnelly lease.
10. Registration and Commission Agreement between The Mutual Life Insurance
Company of New York and Bryant & Associates dated June 23, 1994 for Todays
Temporary, Inc. lease.
<PAGE> 36
11. Registration and Commission Agreement between Atlanta Financial Center
Associates and Carter & Associates, Ltd. dated May 28, 1993 for White,
Smith, Howard & Ajax lease.
12. Commission Agreement between The Mutual Life Insurance Company of New York
and Richard Bowers & Company dated __________ , 199__ for Teknion, Inc.
lease [Note: unsigned by Landlord].
EAST TOWER
1. Commission Agreement between The Mutual Life Insurance Company of New York
and The Wesley Company dated August 29, 1995 for Joseph G. Davis d/b/a
Davis & Doster lease.
2. Commission Agreement between The Mutual Life Insurance Company of New York
and Executive Realty dated December 1, 1995 for Worldwide Notifications
Systems lease.
3. Commission Agreement between The Mutual Life Insurance Company of New York
and Ackerman & Company dated June 29, 1995 for Weissmann & Robinson lease.
[Note: A second copy of this agreement is dated August 2, 1995, but Seller
represents and warrants that both copies constitute one and the same
agreement.]
4. Commission Agreement between The Mutual Life Insurance Company of New York
and Arnold J. Heflin dated March 6, 1995 for Paul J. Wagner, Jr., P.C.
lease.
5. Commission Agreement between The Mutual Life Insurance Company of New York
and The Galbreath Company dated December 20, 1994 for Van Munching & Co.,
Inc. lease.
6. Commission Agreement between The Mutual Life Insurance Company of New York
and Office Associates, Inc. dated October 31, 1995 for Universal Diamonds,
Inc. lease.
7. Commission agreement letter between Robinson-Humphrey Properties,
Incorporated and Cushman & Wakefield of Georgia, Inc. dated August 7, 1986
for Smith, Gambrell & Russell lease.
8. Registration and Commission Agreement between Two Atlanta Financial Center
Associates and COMSTAR Real Estate Services, Inc. dated November 2, 1992
for Small, White & Marani lease.
9. Registration and Commission Agreement between R-H Associates Bldg. II Corp.
and Penso Realty dated June 5, 1987 for Robert Wayne's for Hair lease.
2
<PAGE> 37
10. Registration and Commission Agreement between Two Atlanta Financial Center
Associates and Richard Bowers & Company dated January 4, 1993 for Plaza
Hotel Management lease.
11. Registration and Commission Agreement between Two Atlanta Financial Center
Associates and CB Commercial dated October 16, 1992 for Mutual of America
lease.
12. Registration and Commission Agreement between Two Atlanta Financial Center
Associates and Akin Properties, Inc. dated October 8, 1991 for Montag &
Caldwell, Inc. lease.
13. Registration and Commission Agreement between Two Atlanta Financial Center
Associates and AFCO Realty Associates, Inc. dated October 11, 1989 for
Milliman & Robertson, Inc. lease.
14. Registration and Commission Agreement between Atlanta Financial Center
Associates and Adams-Cates/Grubbs & Ellis dated October 20, 1989 for
Midwest Employers Casualty Company lease.
15. Commission Agreement between The Mutual Life Insurance Company of New York
and Cott & Lambert, Inc. dated April 12, 1996 for Main America Capital,
Inc. lease.
16. Commission Agreement between The Mutual Life Insurance Company of New York
and CB Commercial Real Estate Group, Inc. dated March 20, 1995 for
Lamberth, Bonapfel, Cifelli & Willson lease.
17. Registration and Commission Agreement between Two Atlanta Financial Center
Associates and Grubb & Ellis dated March 24, 1992 for Amalia Moretti, Inc.
d/b/a La Gioiosa USA lease.
18. Registration and Commission Agreement between Two Atlanta Financial Center
Associates and Frank M. Darby Company dated November 14, 1992 for S.M.M.
Corporation d/b/a Joe May Valet lease.
19. Registration and Commission Agreement between Two Atlanta Financial Center
Associates and Carter and Associates, Ltd. dated December 24, 1991 for
Industrial Developments International, Inc. lease.
20. Registration and Commission Agreement between Two Atlanta Financial Center
Associates and Akin Properties, Inc. dated November 6, 1991 for Wayne
Helms, P.C. lease.
21. Commission Agreement between The Mutual Life Insurance Company of New York
and The Sharp-Boylston Companies dated September 28, 1995 for Haworth
Commercial Furniture lease.
3
<PAGE> 38
22. Registration and Commission Agreement between Two Atlanta Financial Center
Associates and Cauble and Company dated February 18, 1994 for Holcomb T.
Green lease.
23. Commission Agreement between The Mutual Life Insurance Company of New York
and Grubb & Ellis dated October 25, 1995 for Gaiatech, Inc. lease.
24. Commission Agreement between The Mutual Life Insurance Company of New York
and Office Associates, Inc. dated September 28, 1995 for Freebairn & Co.
lease.
25. Commission Agreement between The Mutual Life Insurance Company of New York
and Kercher & Associates dated September 5, 1995 for Duncanson & Holt, Inc.
lease.
26. Registration and Commission Agreement between The Mutual Life Insurance
Company of New York and The Wesley Company dated August 29, 1994 for
Enterprise Capital Management, Inc. lease.
27. Registration and Commission Agreement between Two Atlanta Financial Center
Associates and CB Commercial Real Estate Group, Inc. dated March 5, 1992
for The Disney Channel lease and Amendment to Registration and Commission
Agreement dated July 23, 1992.
28. Commission Agreement between The Mutual Life Insurance Company of New York
and The LeCraw Company dated November 8, 1995 for Denon Corp. (USA) lease.
29. Registration and Commission Agreement between Two Atlanta Financial Center
Associates and The Miller-Richmond Company dated December 7, 1993 for
Coleman Management Consultants lease.
30. Commission Agreement between The Mutual Life Insurance Company of New York
and The Wesley Company dated March 15, 1996 for California Compensation
Insurance Company d/b/a Business Insurance Company, Inc. lease.
31. Registration and Commission Agreement between The Mutual Life Insurance
Company of New York and Brookdale Realty Services dated October 4, 1994
for Brookdale Realty Services lease.
32. Registration and Commission Agreement between The Mutual Life Insurance
Company of New York and Carter & Associates, Ltd. dated March 28, 1994 for
Alliance Technology Management Company lease.
33. Registration and Commission Agreement between Two Atlanta Financial Center
Associates and Peachtree Brokers dated August 19, 1993 for Robert J. Allio
& Associates, Inc. lease.
4
<PAGE> 39
34. Registration and Commission Agreement between Two Atlanta Financial Center
Associates and Rubloff, Inc. dated May 11, 1990 for Air One, Inc. lease.
35. Registration and Commission between Two Atlanta Financial Center
Associates and Cushman & Wakefield of Georgia, Inc. dated September 2,
1993 for Howard Weil Labouisse Friedrichs, Inc. lease.
36. Registration and Commission Agreement between Two Atlanta Financial Center
Associates and Bryant & Associates dated September 3, 1993 for Morris and
Webster lease.
37. Commission Agreement between The Mutual Life Insurance Company of New York
and Brannen/Goddard Company dated June 28, 1996 for Starbucks Corporation
lease.
NORTH TOWER
1. Commission Agreement between The Mutual Life Insurance Company of New York
and The Wesley Company dated May 4, 1995 for Robert D. Wildstein, P.C.
lease.
2. Commission Agreement (undated) between The Mutual Life Insurance Company
of New York and Richard Bowers & Company for The Watkins Insurance Group
lease. [Note: Broker refused to execute standard agreement and Landlord
refused to approve changes requested.]
3. Registration and Commission Agreement between R-H Associates Bldg. III
Corp. and Merrill Lynch Realty dated November 8, 1989 for Walton C. Bryde
& Associates, P.C. lease.
4. Commission Agreement between The Mutual Life Insurance Company of New York
and Richard Bowers & Company dated May 5, 1995 for Transcend Services,
Inc. lease.
5. Registration and Commission Agreement between R-H Associates Bldg. III
Corp. and Cushman & Wakefield of Georgia, Inc. dated November 22, 1989 for
The Thomas Financial Group lease.
6. Registration and Commission Agreement between R-H Associates Bldg. III
Corp. and Royal LePage Real Estate Services dated March 25, 1991 for Shore
& Azimov, P.C. lease.
7. Commission Agreement between The Mutual Life Insurance Company of New York
and Bryant & Associates dated April 3, 1995 for Spix, Krupp & Reece lease.
5
<PAGE> 40
8. Registration and Commission Agreement between R-H Associates Bldg. III
Corp. and Real Estate Specialist, Inc. dated August 9, 1994 for The
Prudential Insurance Company of America lease.
9. Registration and Commission Agreement between R-H Associates Bldg. III
Corp. and Ben Carter Properties dated February 25, 1994 for Fisher
Transportation, Ltd. lease.
10. Commission Agreement between The Mutual Life Insurance Company of New York
and The Wesley Company dated March 20, 1996 for Interim Accounting
Professionals of Atlanta, Inc. lease.
11. Registration and Commission Agreement between R-H Associates Bldg. III
Corp. and Kercher & Associates dated December 21, 1993 for Christian Dior
Perfumes lease.
12. Commission Agreement between The Mutual Life Insurance Company of New York
and The Wesley Company dated July 27, 1995 for City Capital Corporation
lease. [Note: A second copy of this agreement is dated July 24, 1995, but
Seller represents and warrants that both copies constitute one and the
same agreement.]
13. Registration and Commission Agreement between R-H Associates Bldg. III
Corp. and Selig Realty, Inc. dated February 2, 1994 for Chambers & Asher
lease.
14. Registration and Commission Agreement between R-H Associates Bldg. III
Corp. and Richard Bowers & Company dated August 9, 1994 for E. R. Squibb &
Sons, Inc. lease.
15. Commission Agreement between The Mutual Life Insurance Company of New York
and Sunlink dated April 7, 1996 for BellSouth Communications, Inc. lease.
16. Registration and Commission Agreement between R-H Associates Bldg. III
Corp. and The Staubach Company-Southeast, Inc. dated July 11, 1991 for
KnowledgeWare, Inc. lease.
17. Commission Agreement between The Mutual Life Insurance Company of New York
and Carter & Associates, L.L.C. dated June 7, 1996 for Rowland & Company
lease
18. Commission Agreement between The Mutual Life Insurance Company of New York
and Wilson Properties, Inc dated October 6, 1995 for BellSouth
Telecommunications, Inc. Lease.
19. Registration and Commission Agreement between The Mutual Life Insurance
Company of New York and Cushman & Wakefield of Georgia dated December 12,
1994 for PeopleSoft lease.
6
<PAGE> 41
20. Registration and Commission Agreement between R-H Associates Bldg. III
Corp. and Cushman & Wakefield of Georgia dated June 10, 1992 for
Yankelovich, Skelly & White/Clancy Shulman, Inc. d/b/a Yankelovich Clancy
Shulman lease. [Note: unsigned by Landlord].
21. Registration and Commission Agreement between R-H Associates Bldg. III
Corp. and Group VI Real Estate dated December 11, 1992 for Beckman
Instruments, Inc. lease.
7
<PAGE> 42
EXHIBIT "B"
SCHEDULE OF EXISTING LEASES
SOUTH TOWER:
1. Restaurant Management Agreement between The Mutual Life Insurance Company
of New York (as Owner) and American Food Management, Inc. (as Manager)
dated November 27, 1995.
2. Lease Agreement (South Tower) between The Mutual Life Insurance Company of
New York and Patricia Moscoso and Olga Papandrea d/b/a Atlanta's Flower
Mart dated August 26, 1994; Unconditional Guaranty of Lease by Patricia
Moscoso and Olga Papandreou d/b/a Atlanta's Flower Mart dated March 6,
1995; as assigned by Assignment of Lease to Buckhead Florist, Inc. dated
March 7, 1995; Certificate as to Term of Lease dated April 5, 1995,
amended by First Amendment to Lease between The Mutual Life Insurance
Company of New York as Landlord and Buckhead Florist, Inc. dated February
11, 1996.
3. Lease Agreement (South Tower) between Atlanta Financial Center Associates
and Fellows, Johnson, Davis & Labriola dated January 4, 1993; Certificate
as to Term of Lease dated March 18, 1993.
4. Lease Agreement (South Tower) between Atlanta Financial Center Associates
and Gallup, Inc. dated October 12, 1992; Certificate as to Term of Lease
dated November 23, 1992.
5. Lease Agreement (South Tower) between Atlanta Financial Center Associates
and Higgins & Dubner dated April 29, 1992; Certificate as to Term of Lease
dated June 19, 1992; amended by First Amendment between The Mutual Life
Insurance Company of New York and Higgins & Dubner dated January 24, 1995.
6. Lease Agreement (South Tower) between Atlanta Financial Center Associates
and Hughes Advertising, Inc. dated November 30, 1993.
7. Lease Agreement (South Tower) between The Mutual Life Insurance Company of
New York and Edward Strickland d/b/a Image Shine dated August 10, 1995;
Certificate as to Term of Lease dated December 21, 1995.
8. Lease Agreement (South Tower) between The Mutual Life Insurance Company of
New York and R.E. Kendrick & Associates, Inc. dated July 13, 1995;
Certificate as to Term of Lease dated August 28, 1995.
9. Lease Agreement between The Mutual Life Insurance Company of New York and
Metrex Corporation d/b/a Metropolitan Fiber Systems of Atlanta, Inc. dated
December 8, 1994.
<PAGE> 43
10. Lease Agreement (South Tower) between The Mutual Life Insurance
Company of New York and MCImetro Access Transmission Services, Inc.
dated December 21, 1995.
11. Amended and Restated Lease Agreement between The Mutual Life
Insurance Company of New York and The Robinson-Humphrey Company,
Inc. dated November 15, 1994; amended by Modification to Amended and
Restated Lease Agreement dated November 30, 1994.
12. Lease Agreement (South Tower) between Atlanta Financial Center
Associates and Martin Rubin and Robert Waldo dated July 10, 1989;
amended by First Amendment to Lease Agreement and Lease Extension
Agreement dated August 31, 1993; Certificate as to Term of Lease
dated_______,19______.
13. Lease Agreement between Atlanta Financial Center Associates and Rays
& Company dated March 9, 1984; amended by First Amendment to Lease
Agreement dated July 7, 1986; further amended by Second Amendment to
Lease Agreement dated March 22, 1988; as further amended by Third
Amendment to Lease Agreement dated September 23, 1988; as further
amended by Fourth Amendment to Lease Agreement dated February 6,
1988 [sic]; as further amended by Fourth Amendment [sic] to Lease
Agreement dated November 16, 1988; Certificate as to Term of Lease
dated February 6, 1989; as amended by Fifth Amendment to Lease
Agreement dated April 6, 1993; Storage Space Rental Agreement
between Two Atlanta Financial Center Associates and Ruys & Company
dated May 17, 1989; as amended by Amendment to Storage Space Rental
Agreement dated August 2, 1990.
14. Amendment to and Restatement of Lease Agreement between The Mutual
Life Insurance Company of New York and Sedgewick James of Georgia,
Inc. dated January 1, 1995.
15. Lease Agreement between Atlanta Financial Center Associates and
Ackerman & Co. dated November 8, 1983; amended by First Amendment
and Substitution of Undisclosed Principals between Atlanta Financial
Center Associates and Forts on and White dated December 19, 1983;
further amended by Second Amendment to Lease Agreement dated
November 11, 1985; further amended by Third Amendment to Lease
Agreement dated April 28, 1988; further amended by Fourth Amendment
to Lease Agreement dated December 1, 1989; further amended by Fifth
Amendment to Lease Agreement and Lease Extension and Expansion
Agreement with White, Smith, Howard & Ajax (f/k/a Forts on & White),
as Tenant, dated June 8, 1993; further amended by Sixth Amendment to
Lease Agreement between The Mutual Life Insurance Company of New
York as Landlord and Smith, Howard and Ajax dated March 7, 1995;
Certificate as to Term of Lease [undated]; Storage Space Rental
Agreement between The Mutual Life Insurance Company of New York and
Smith, Howard & Ajax dated February 1, 1996.
2
<PAGE> 44
16. Lease Agreement between The Mutual Life Insurance Company of New
York and Teknion, Inc. dated March 29, 1996; Certificate as to Term
of Lease dated July 1, 1996.
17. Lease Agreement (South Tower) between The Mutual Life Insurance
Company of New York and Titus & Donnelly, Inc. dated April 6, 1994.
18. Lease Agreement (South Tower) between The Mutual Life Insurance
Company of New York and Today's Temporary, Inc. dated June 16, 1994;
Certificate as to Term of Lease dated August 25, 1994.
North Tower:
1. Lease Agreement between The Mutual Life Insurance Company of New
York and ARES, Inc. dated February 1, 1996.
2. Lease Agreement (North Tower) between R-H Associates Bldg. III Corp,
and Bankers Trust Company dated June 28, 1990; Certificate as to
Term of Lease dated September 17, 1990; Sublease between Bankers
Trust Company and Bottomley & Associates, Inc. dated September 30,
1993 with Consent to Sublease by R-H Associates Bldg III Corp. dated
November 3, 1993.
3. Lease Agreement (North Tower) between R-H Associates Bldg III Corp
and Beckman Instruments, Inc. dated June 3, 1993; Certificate as to
Term of Lease dated November 23, 1993.
4. Lease Agreement between The Mutual Life Insurance Company of New
York and BellSouth Personal Communications, Inc. dated April 7,
1996.
5. Lease Agreement (North Tower) between The Mutual Life Insurance
Company of New York and BellSouth Telecommunications, Inc. dated
September 12, 1995.
6. Lease Agreement (North Tower) between R-H Associates Bldg. III Corp.
and Bleke & Boyd, P.C, dated September 9, 1992; Certificate as to
Term of Lease dated January 18, 1993.
7. Lease Agreement (North Tower) between R-H Associates Bldg. III
Corp. and Walton C. Bryde & Associates, P.C, dated October 10, 1989;
Certificate as to Term of Lease dated December 15, 1990; amended by
Amendment and Extension of Lease Agreement dated March 11, 1992;
Unconditional Guaranty of Lease by Walton C. Bryde dated April 7,
1992; Sublease Agreement to John T. Clegg dated December 1, 1995
with Consent to Sublease by The Mutual Life Insurance Company of New
York dated November 30, 1995.
3
<PAGE> 45
8. Agreement between The Mutual Life Insurance Company of New York and
Corporate Sports Unlimited, Inc. dated January 1, 1995.
9. Lease Agreement (North Tower) between R-H Associates Bldg. III Corp.
and Business Telecom, Inc. dated August 19, 1994 [Suite 1160];
amended by First Amendment to Lease Agreement dated December 8,
1994; Certificate as to Term of Lease dated March 13, 1995; Sublease
to Commodity Marketing Company, Inc. dated April 5, 1996 with
Consent to Sublease by The Mutual Life Insurance Company of New York
dated May 20, 1996.
10. Lease Agreement (North Tower) between R-H Associates Bldg. III Corp.
and Business Telecom, Inc. dated August 19, 1994 [Suite 530];
Certificate as to Term of Lease dated March 13, 1995; Sublease to
American Management Institute dated July 30, 1996 with Consent to
Sublease by The Mutual Life Insurance Company of New York dated July
30, 1996.
11. Lease Agreement (North Tower) between R-H Associates Bldg. III.
Corp. and Chase Communications, Inc. d/b/a Chambers & Asher
SPEECHWORKS dated April 26, 1990; Certificate as to Term of Lease
dated July 12, 1990; amended by First Amendment to Lease Agreement
dated January 7, 1994.
12. Lease Agreement (North Tower) between R-H Associates Bldg. III Corp.
and Christian Dior Perfumes, Inc. dated January 3, 1991; Certificate
as to Term of Lease dated January 31, 1991; Lease amended by First
Amendment to Lease Agreement and Lease Extension Agreement dated
December 31, 1993.
13. Lease Agreement (North Tower) between The Mutual Life Insurance
Company of New York and City Capital Corporation dated July 24,
1995; Certificate as to Term of Lease dated September 12, 1995.
14. Lease Agreement (North Tower) between The Mutual Life Insurance
Company of New York and Wayne Helms, P.C. dated January 30, 1995;
Certificate as to Term of Lease dated March 7, 1995.
15. Lease Agreement (North Tower) between R-H Associates Bldg. III.
Corp. and Gerdes Huff Investments dated August 14, 1991; Certificate
as to Term of Lease dated ; Lease amended by First Amendment to
Lease with The Mutual Life Insurance Company of New York, as
Landlord, dated November 14, 1994; Certificate as to Term of Lease
dated April 10, 1995.
16. Lease Agreement between The Mutual Life Insurance Company of New
York and Interim Accounting Professionals of Atlanta, Inc. dated
March 26, 1996; Guaranty by Ronald Ramsey dated February 28, 1996;
Certificate as to Term of Lease dated May 14, 1996.
4
<PAGE> 46
17. Lease Agreement between R-H Associates Bldg. III Corp. and
Knowledgeware, Inc. dated July 26, 1991; Certificate as to Term of
Lease dated January 10, 1992; amended by First Amendment to Lease
Agreement between The Mutual Life Insurance Company of New York and
Sterling Software (Southern), Inc. dated December 31, 1994; Sublease
Agreement to Columbia/HCA Healthcare Corporation dated October 24,
1994 and Consent to Sublease by The Mutual Life Insurance Company of
New York dated October 24, 1994; Sublease Agreement to BellSouth
Personal Communications, Inc. dated September 20, 1994 and Consent
to Sublease by The Mutual Life Insurance Company of New York dated
September 30, 1994; Substitute Lease Agreement (North Tower) between
The Mutual Life Insurance Company of New York and BellSouth Personal
Communications, Inc., dated September 20, 1994 as affected by
Landlord Non-Disturbance and Attornment Agreement between
Knowledgeware, Inc., The Mutual Life Insurance Company of New York
and BellSouth Personal Communications, Inc., dated September 20,
1994; Guaranty of Substitute Lease Agreement by BellSouth
Enterprises, Inc., dated September 20, 1994; First Amendment to
Substitute Lease Agreement dated October 21, 1994.
18. Lease Agreement (North Tower) between R-H Associates Bldg. III Corp.
and Fisher Transportation, Ltd. d/b/a London Livery, Ltd. dated
March 11, 1994; Certificate as to Term of Lease dated June 2, 1994.
19. Lease Agreement (North Tower) between R-H Associates Bldg. III.
Corp. and Mutual of America Life Insurance dated May 23, 1994;
Certificate as to Term of Lease dated , 1994.
20. Lease Agreement (North Tower) between The Mutual Life Insurance
Company of New York and Peoplesoft, Inc. dated December 30, 1994.
21. Lease Agreement (North Tower) between R-H Associates Bldg. III Corp.
and The Prudential Insurance Company of America dated July 25, 1994;
Certificate as to Term of Lease with The Mutual Life Insurance
Company of New York as Landlord dated October 17, 1994.
22. Lease Agreement (North Tower) between The Mutual Life Insurance
Company of New York and Robert D. Wildstein, P.C. dated April 25,
1995; Unconditional Guaranty of Lease by Robert D. Wildstein dated
April 25, 1995; Certificate as to Term of Lease dated July 14, 1995.
23. Lease Agreement between The Mutual Life Insurance Company of New
York and Mark Rowland, an individual d/b/a Rowland & Company, dated
June 3, 1996.
24. Lease Agreement (North Tower) between R-H Associates Bldg. III Corp.
and Shore & Azimov, P.C. dated March 12, 1991; Certificate as to
Term of Lease dated August 28, 1991; Sublease to Technical Products
Group Inc. dated June_, 1995 with
5
<PAGE> 47
Consent to Sublease by The Mutual Life Insurance Company of New York
dated July 19, 1995.
25. Lease Agreement (North Tower) between R-H Associates Bldg. III Corp.
and Spix, Krupp & Reese, P.C. dated November 22, 1989; Certificate
as to Term of Lease dated December 27, 1989(?); Certificate as to
Term of Lease dated January 2, 1991; amended by First Amendment to
Lease Agreement with The Mutual Life Insurance Company of New York
as Landlord dated March 1, 1995.
26. Lease Agreement (North Tower) between R-H Associates Bldg. III Corp.
and E.R. Squibb & Sons, Inc. dated August 26, 1994; Certificate as
to Term of Lease with The Mutual Life Insurance Company of New York
as Landlord dated November 10, 1994.
27. Lease Agreement (North Tower) between The Mutual Life Insurance
Company of New York and Transcend Services, Inc. dated April 10,
1995.
28. Lease Agreement (North Tower) between R-H Associates Bldg. III Corp.
and The Thomas Financial Group dated November 9, 1989; amended by
First Amendment to Lease Agreement dated December 4, 1989;
Certificate as to Term of Lease dated February 27, 1990; further
amended by Second Amendment to Lease Agreement dated March 9, 1990;
further amended by Third Amendment to Lease Agreement dated March
20, 1991; Certificate as to Term of Lease dated July 11, 1991;
further amended by Fourth Amendment to Lease Agreement dated
September 1, 1994; further amended by Fifth Amendment to Lease
Agreement with The Mutual Life Insurance Company of New York as
landlord dated October 21, 1995.
29. Lease Agreement (North Tower) between R-H Associates Bldg. III.
Corp. and The Watkins Insurance Group, Inc. dated August 14, 1991;
Certificate as to Term of Lease dated June 17, 1992; Storage Space
Rental Agreement [East Tower] dated May 1, 1993; amended by First
Amendment to Lease Agreement with The Mutual Life Insurance Company
of New York as Landlord dated December 21, 1995; Certificate as to
Term of Lease dated January 26, 1996.
30. Lease Agreement (North Tower) between The Mutual Life Insurance
Company of New York and The Wilson Law Firm, P.C. dated December 1,
1994; Unconditional Guaranty of Lease by L. Matt Wilson dated
December 1, 1994.
31. Lease Agreement (North Tower) between R-H Associates Bldg. III Corp.
and Yankelovich, Skelly & White/Clancy, Shulman Inc. d/b/a
Yankelovich Clancy Shulman dated May 18, 1992; amended by First
Amendment to Lease Agreement dated July 9, 1992; Certificate as to
Term of Lease dated November 23, 1992; further amended by Second
Amendment to Lease Agreement with The Mutual life Insurance Company
of New York as Landlord dated May 31, 1995.
East Tower:
6
<PAGE> 48
1. Lease Agreement (East Tower) between Two Atlanta Financial Center
Associates and Air One, Inc. dated April 20, 1990; amended by First
Amendment to Lease Agreement dated May 8, 1990; further amended by
Second Amendment to Lease Agreement and Extension of Lease Term
dated February 1, 1993; Storage Space Rental Agreement with The
Mutual Life Insurance Company of New York as Landlord dated November
6, 1995; further amended by Third Amendment to Lease Agreement with
The Mutual Life Insurance Company of New York as Landlord dated
March 19, 1996; further amended by Fourth Amendment to Lease
Agreement dated May 22, 1996; Sublease Agreement to Fellows,
Johnson, Davis & LaBriola dated May 6, 1996 with Consent to Sublease
by The Mutual Life Insurance Company of New York dated May 20, 1996;
Certificate as to Term of Lease dated June 17, 1996.
2. Lease Agreement (East Tower) between The Mutual Life Insurance
Company of New York and Alliance Technology Management Company dated
March 28, 1994; amended by First Amendment to Lease Agreement dated
April 28, 1994; Certificate as to Term of Lease dated June 2, 1994.
3. Lease Agreement (East Tower) between Two Atlanta Financial Center
Associates and Robert J. Allio & Associates, Inc. dated August 16,
1993; Certificate as to Term of Lease dated January 23, 1994.
4. Lease Agreement (East Tower) between Two Atlanta Financial Center
Associates and AREL Group, Inc. dated December 9, 1993; Storage
Space Rental Agreement with The Mutual Life Insurance Company of New
York as Landlord dated July 12, 1995.
5. Lease Agreement between The Mutual Life Insurance Company of New
York and Rosemary S. Armstrong and Michael W. Broadbear dated April
3, 1996; Certificate as to Term of Lease dated May 21, 1996.
6. Lease Agreement between The Mutual Life Insurance Company of New
York and Paula Lorenz d/b/a Atlanta Auto Salon dated December 20,
1995; Certificate as to Term of Lease dated January 15, 1996.
7. Lease Agreement between The Mutual Life Insurance Company of New
York and The Atlanta Committee for the Olympic Games, Inc. dated
November 15, 1995.
8. Lease Agreement (East Tower) between The Mutual Life Insurance
Company of New York and Brookdale Realty Services dated October 3,
1994; amended by First Amendment to Lease Agreement dated November
11, 1994; Certificate as to Term of Lease dated February 3, 1995;
further amended by Second Amendment to Lease Agreement with
Brookdale Realty Services, LLC as Tenant dated May 29, 1996.
9. Lease Agreement (East Tower) between R-H Associates Bldg. II Corp.
and Buckhead Management Corporation dated September 19, 1986;
Private Club
7
<PAGE> 49
Consulting Agreement between Buckhead Management Corporation and
Club Corporation of America dated September 19, 1986; Lease amended
by First Amendment to Lease Agreement dated November 26, 1986;
further amended by Second Amendment to Lease Agreement dated
September 7, 1988; further amended by Third Amendment to Lease
Agreement with Two Atlanta Financial Center Associates as Landlord
and The Buckhead Club, Inc. as Tenant dated July 29, 1989; Letter
Agreement dated February 21, 1990.
10. Storage Space Rental Agreement between The Mutual Life Insurance
Company of New York and Patricia Moscoso and Olga Papandreou d/b/a
Buckhead Florist, Inc. f/k/a Atlanta Flower Mart dated January 1,
1995.
11. Lease Agreement between The Mutual Life Insurance Company of New
York and California Compensation Insurance Company d/b/a Business
Insurance Company, Inc. dated March 7, 1996; amended by First
Amendment to Lease Agreement dated April 25, 1996.
12. Lease Agreement (East Tower) between Two Atlanta Financial Center
Associates and Coleman Management Consultants, Inc. dated October
18, 1993; Storage Space Rental Agreement with The Mutual Life
Insurance Company of New York as Landlord dated October______, 1994.
13. Lease Agreement (East Tower) between The Mutual Life Insurance
Company of New York and Joseph G. Davis, Jr. d/b/a Davis & Doster
dated July 24, 1995; Unconditional Guaranty of Lease by Joseph G.
Davis, Jr. dated June 13, 1995; Certificate as to Term of Lease
dated November 8, 1995.
14. Lease Agreement (East Tower) between The Mutual Life Insurance
Company of New York and Denon Corp. (USA) dated November 8, 1995;
Certificate as to Term of Lease dated February 14, 1996.
15. Lease Agreement (East Tower) between Two Atlanta Financial Center
Associates and The Disney Channel d/b/a The Disney Channel Company
dated October 28, 1987; Certificate as to Term of Lease dated
January 22, 1988; amended by Modification to Lease and Extension
Agreement dated February 1, 1992; further amended by Second
Amendment to Lease Agreement dated October 16, 1992.
16. Lease Agreement (East Tower) between Two Atlanta Financial Center
Associates and Duncanson & Holt, Inc. dated January 29, 1991;
Certificate as to Term of Lease dated October 23, 1995; amended by
First Amendment To Lease Agreement with The Mutual Life Insurance
Company of New York as Landlord dated September 6, 1995.
17. Lease Agreement (East Tower) between Two Atlanta Financial Center
Associates and EBC Enterprise AFC, Inc. dated August 27, 1991;
Certificate as to Term of Lease dated ______, 19___; amended by
First Amendment to Lease Agreement with The Mutual Life Insurance
Company of New York as Landlord dated April 14, 1994.
8
<PAGE> 50
18. Lease Agreement (East Tower) between The Mutual Life Insurance
Company of New York and Enterprise Capital Management, Inc. dated
August 18, 1994; Certificate as to Term of Lease dated October 23,
1995; First Amendment to Lease dated July 18, 1996.
19. Lease Agreement (East Tower) between The Mutual Life Insurance
Company of New York and Federal Express Corporation dated October
12, 1994; Certificate as to Term of Lease dated August 28, 1995.
20. Lease Agreement (East Tower) between Two Atlanta Financial Center
Associates and Cascino & Purcell, Inc. dated February 4, 1988;
amended by First Amendment to Lease Agreement dated July 16, 1990;
further amended by Second Amendment to Lease Agreement and Lease
Extension and Expansion Agreement with Cascino Purcell & Freebairn,
Inc. f/k/a Cascino & Purcell, Inc. as Tenant dated April 10, 1992;
further amended by Third Amendment to Lease Agreement with Freebairn
& Company as Tenant and The Mutual Life Insurance Company of New
York as Landlord dated January 1, 1995; further amended by Fourth
Amendment to Lease Agreement with Freebairn and Company [f/k/a
Casino, Purcell & Freebairn, Inc.] dated September 12, 1995; Storage
Space Rental Agreement with R-H Associates Bldg. III Corp. as
Landlord and Freebairn and Company dated November 24, 1993; Storage
Space Rental Agreement with Freebairn and Company as Tenant dated
March 31, 1994; Certificate as to Term of Lease dated October 23,
1995.
21. Lease Agreement (East Tower) between The Mutual Life Insurance
Company of New York and Gaiatech, Inc. dated November 1, 1995;
Certificate as to Term of Lease dated January 2, 1996.
22. Storage Space Rental Agreement between The Mutual Life Insurance
Company of New York and Gallup, Inc. dated January 4, 1996.
23. Lease Agreement (East Tower) between The Mutual Life Insurance
Company of New York and Haworth, Inc. dated September 25, 1995;
Certificate as to Term of Lease dated February 22, 1996.
24. Lease Agreement (East Tower) between Two Atlanta Financial Center
Associates and Wayne Helms, P.C. dated November 21, 1991;
Certificate as to Term of Lease dated April 10, 1992; Storage Space
Rental Agreement between The Mutual Life Insurance Company of New
York and Wayne Helms, P.C dated October 1, 1994.
25. Lease Agreement between The Mutual Life Insurance Company of New
York and The Hogan Group, Inc. dated January 24, 1996; Certificate
as to Term of Lease dated February 28, 1996.
26. Lease Agreement (East Tower) between Two Atlanta Financial Center
Associates and HTG Corp. dated December 15, 1987; Lease Guaranty by
Holcombe T. Green dated January 5, 1988; amended by First Amendment
to Lease Agreement with
9
<PAGE> 51
H.T.G. Corp. as Tenant dated May 9, 1988; further amended by Second
Amendment to Lease Agreement dated November 2, 1989; assigned by
Assignment of Lease by H.T.G. Corp. to Holcomb T. Green dated March
7, 1994; further amended by Third Amendment to Lease Agreement with
Holcombe T. Green as Tenant and The Mutual Life Insurance Company of
New York as Landlord dated March 7, 1994; Storage Space Rental
Agreement dated March 31, 1994; further amended by Fourth Amendment
to Lease Agreement dated February 9, 1995; Certificate as to Term of
Lease dated April 10, 1995.
27. Lease Agreement (East Tower) between Two Atlanta Financial Center
Associates and Industrial Developments International, Inc. dated
January 9, 1992; Certificate as to Term of Lease dated April 10,
1992; amended by First Amendment to Lease Agreement with The Mutual
Life Insurance Company of New York as Landlord dated July 19, 1995;
further amended by Second Amendment to Lease dated March 23, 1996.
28. Lease Agreement (East Tower) between Two Atlanta Financial Center
and Associates and S.M.M. Corporation d/b/a Joe May Valet dated
September 22, 1992; amended by First Amendment to Lease Agreement
with The Mutual Life Insurance Company of New York as Landlord dated
November 7, 1995; Certificate as to Term of Lease dated December 11,
1995; Certificate as to Term of Lease dated April 23, 1996.
29. Lease Agreement (East Tower) between Two Atlanta Financial Center
Associates and Amalia Moretti, Inc. d/b/a LaGioiosa USA dated
January 17, 1992; Certificate as to Term of Lease dated February 4,
1992; amended by First Modification to Lease and Extension Agreement
dated September 22, 1992; further amended by Second Amendment to
Lease Agreement with The Mutual Life Insurance Company of New York
as Landlord dated February 14, 1995; Storage Space Rental Agreement
dated March 17, 1994.
30. Lease Agreement (East Tower) between Two Atlanta Financial Center
Associates and Lamberth, Bonapfel, Cifelli & Willson, P.A. dated
December 29, 1989; amended by First Amendment to Lease Agreement
with The Mutual Life Insurance Company of New York as Landlord and
Lamberth Bonapfel Cifelli, Willson & Stokes, PA as Tenant dated
October 17, 1994; Certificate as to Term of Lease dated August 8,
1995.
31. Lease Agreement (East Tower) between Two Atlanta Financial Center
Associates and Howard Well Labouisse of Friedrichs, Inc. dated
August 31, 1993; Certificate as to Term of Lease dated January 23,
1994; assigned by Assignment of Lease to Legg Mason Wood Walker, Inc
dated March 7, 1995 With Consent by The Mutual Life Insurance
Company of New York dated March 7, 1995; Sublease to J.P. Carey
Enterprises, Inc. dated October 24, 1995 with Consent to Sublease
dated November 30, 1995.
10
<PAGE> 52
32. Lease Agreement between The Mutual Life Insurance Company of New
York and Main America Capital, L.C. dated April 12, 1996;
Certificate as to Term of Lease dated May 14, 1996.
33. Lease Agreement (East Tower) between Two Atlanta Financial Center
Associates and MidWest Employers Casualty Company dated July 29,
1992; Certificate as to Term of Lease dated December 17, 1992.
34. Lease Agreement (East Tower) between Two Atlanta Financial Center
Associates and Milliman & Robertson, Inc. dated October 11, 1989;
amended by First Amendment to Lease Agreement with The Mutual Life
Insurance Company of New York as Landlord dated June 19, 1995;
Certificate as to Term of Lease dated November 2, 1995.
35. Lease Agreement (East Tower) between Two Atlanta Financial Center
Associates and Montag & Caldwell, Inc. dated December 9, 1991;
amended by First Amendment to Lease Agreement dated May 4, 1992;
further amended by Second Amendment to Lease Agreement with The
Mutual Life Insurance Company of New York as Landlord dated August
1, 1995; Certificate as to Term of Lease dated September 13, 1995.
36. Lease Agreement (East Tower) between Two Atlanta Financial Center
Associates and Moore Copies, Inc. dated July 6, 1993; Certificate as
to Term of Lease dated January 17, 1994; Verbal Storage Space Rental
Agreement dated ____; Storage Space Rental Agreement with The Mutual
Life Insurance Company of New York as Landlord dated February 3,
1995.
37. Lease Agreement (East Tower) between Two Atlanta Financial Center
Associates and Morris, Manning & Martin dated August 6, 1987;
amended by Modification to Lease dated January 1, 1993.
38. Lease Agreement (East Tower) between Two Atlanta Financial Center
Associates and Morris and Webster dated September 24. 1993.
39. Lease Agreement (East Tower) between Two Atlanta Financial Center
Associates and Mutual of America dated April 4, 1988; amended by
Amendment to Lease and Extension Agreement dated June 8, 1992;
Certificate as to Term of Lease dated August 27, 1992; further
amended by Second Amendment to Lease Agreement with The Mutual Life
Insurance Company of New York as Landlord and Mutual of America
Life Insurance as Tenant dated May 19, 1994.
40. Lease Agreement (East Tower) between Two Atlanta Financial Center
Associates and The Mutual Life Insurance Company of New York dated
May 3, 1992.
41. Lease Agreement (East Tower) between Two Atlanta Financial Center
Associates and Newsweek, Inc. dated January 30, 1989; Certificate as
to Term of Lease dated
11
<PAGE> 53
March 15, 1989; amended by First Amendment to Lease Agreement and
Lease Extension Agreement dated September 20, 1993; further amended
by Second Amendment to Lease Agreement with The Mutual Life
Insurance Company of New York as Landlord dated March 8, 1995.
42. Lease Agreement (East Tower) between Two Atlanta Financial Center
Associates and James O. Patterson dated August 23, 1988; amended by
First Amendment to Lease Agreement dated December 18, 1990;
Certificate as to Term of Lease dated May 3, 1991; Storage Space
Rental Agreement dated May 6, 1991; further amended by Second
Amendment to Lease Agreement dated June 6, 1991; further amended by
Third Amendment to Lease Agreement dated July 9, 1992; further
amended by Fourth Amendment to Lease Agreement dated November 23,
1992.
43. Lease Agreement (East Tower) between R-H Associates Bldg. II Corp.
and W.H. Smith Hotel Services, Inc. dated July 22, 1987; Certificate
as to Term of Lease dated _____ , 198___. Certificate as to
Preliminary Term of Lease dated January 6, 1988; amended by First
Amendment to Lease Agreement with Two Atlanta Financial Center
Associates Landlord dated August 14, 1989; assigned by Assignment
and Assumption of Lease to An Gil Lee d/b/a Peachtree News Stand
dated May 29, 1990; amended by Amendment to Assigned Lease dated May
29, 1990; further assigned by Second Assignment and Assumption of
Lease to Charles Jung and Yang Jin Jung dated August 17, 1992;
further amended by Third Amendment to Lease Agreement with Two
Atlanta Financial Center Associates as Landlord dated August 17,
1992; further amended by Fourth Amendment to Lease Agreement dated
May 17, 1993; further amended by Fifth Amendment to Lease Agreement
with The Mutual Life Insurance Company of New York as Landlord dated
November 11, 1994; Certificate as to Term of Lease dated April 5,
1995.
44. Lease Agreement (East Tower) between Two Atlanta Financial Center
Associates and The Plaza Hotel Company, dated February 10, 1993;
Certificate as to Term of Lease dated April 30, 1993.
45. Lease Agreement (East Tower) between R-H Associates Bldg. II Corp.
and BellSouth System Technology, Inc. dated April 1, 1987;
Certificate as to Term of Lease dated October 14, 1987; assigned by
Assignment of Lease to Shared Technologies, Inc dated September 28,
1989; amended by First Amendment to Lease Agreement with Two Atlanta
Financial Center Associates as Landlord dated July 25, 1989; further
amended by Second Amendment to Lease Agreement dated May 11, 1992.
46. Lease Agreement (East Tower) between Two Atlanta Financial Center
Associates and Small, White & Marani dated November 4, 1992.
47. Lease Agreement (East Tower) between R-H Associates Bldg. II Corp.
and Smith, Gambrell & Russell dated March 24, 1987.
12
<PAGE> 54
48. Lease Agreement (East Tower) between Two Atlanta Financial Center
Associates and SouthTrust of Alabama dated June 21, 1991; amended by
First Amendment to Lease Agreement with The Mutual Life Insurance
Company of New York as Landlord dated March 7, 1994; Sublease to
Realtec, Incorporated dated July 13, 1993.
49. Lease Agreement (East Tower) between Two Atlanta Financial Center
Associates and Liberty Savings Bank, FSB dated September 25, 1987;
assigned by Assignment of Lease to SouthTrust Bank Federal Savings
Bank (SouthTrust) dated September 28, 1990; amended by Modification
to Lease with SouthTrust Bank Federal Savings Bank as Tenant dated
May 1, 1993;
50. Lease Agreement (East Tower) between Two Atlanta Financial Center
Associates and Liberty Savings Bank, FSB dated September 25, 1987;
assigned by Assignment of Lease to Liberty Savings Bank of South
Georgia, F.S.B. dated August ___, 1990 with Consent of Landlord;
amended by First Amendment to Lease Agreement with SouthTrust Bank
FSB as Tenant dated December 12, 1991; further amended by First
Amendment to Lease Agreement with The Mutual Life Insurance Company
of New York as landlord and SouthTrust Bank of Georgia, NA as Tenant
dated March 7, 1994; Sublease to Wagner & Johnston, P.C, dated
August 5, 1993; Letter Agreement [for sublease of space] between
Wagner & Johnston, P.C and Providence Capital Inc. and Westside
Investors, Inc. dated September 30, 1994 with consent to sublease by
The Mutual Life Insurance Company of New York dated December 7,
1994; Letter Agreement [for sublease of space] between Wagner &
Johnston, P.C. and Nobel Investment Group dated August 17, 1995 with
consent to sublease by The Mutual Life Insurance Company of New York
dated October 23, 1995.
51. Lease Agreement between The Mutual Life Insurance Company of New
York and Starbucks Corporation dated June 26, 1996.
52. Lease Agreement between R-H Associates Bldg. II Corp. and Universal
Diamond Corporation dated July 13, 1987; amended by First Amendment
to Lease Agreement with The Mutual Life Insurance Company of New
York as Landlord dated November 14, 1994; further amended by Second
Amendment to Lease Agreement dated October 2, 1995; Certificate as
to Term of Lease dated November 10, 1995.
53. Lease Agreement (East Tower) between The Mutual Life Insurance
Company of New York and Van Munching & Co., Inc dated October 3,
1994; Certificate as to Term of Lease dated January , 1995.
54. Lease Agreement (East Tower) between Two Atlanta Financial Center
Associates and Paul J. Wagner, Jr., P.C dated March 31, 1989;
Certificate as to Term of Lease dated December 11, 1989; amended by
First Amendment to Lease Agreement with The Mutual Life Insurance
Company of New York as Landlord dated January 17, 1995.
13
<PAGE> 55
55. Lease Agreement (East Tower) between R-H Associates Bldg. II Corp.
and Robert Wayne's for Hair dated June 5, 1987; Certificate as to
Term of Lease dated September 8, 1987; amended by First Amendment to
Lease Agreement with Robert L. Betts, Jr. d/b/a Robert Wayne's for
Hair with Two Atlanta Financial Center Associates as Landlord dated
September 22, 1992; further amended by Second Amendment to Lease
Agreement with The Mutual Life Insurance Company of New York as
Landlord dated July 16, 1996.
56. Lease Agreement (East Tower) between The Mutual Life Insurance
Company of New York and Weissman, Robinson & Italiaander, P.C. dated
August 2, [1995]; Unconditional Guaranty of Lease by David A.
Weissman, Debra Robinson and Scott Italiaander dated June 30, 1995;
Certificate as to Term of Lease dated March 27, 1996; First
Amendment to Lease dated August 8, 1996.
57. Lease Agreement between The Mutual Life Insurance Company of New
York and Worldwide Notification Systems, Inc. dated December 1,
1995; Certificate as to Term of Lease dated April 3, 1996.
The following tenants have agreements regarding antennas on the roofs of
the buildings:
1. Freebairn and Company
2. The Robinson-Humphrey Company, Inc.
14
<PAGE> 56
EXHIBIT "C"
LEGAL DESCRIPTION OF LAND
PHASE I
ALL THAT TRACT OR PARCEL OF LAND lying and being in Land Lots 45 and 62,
17th District, City of Atlanta, Fulton County, Georgia and being more
particularly described as follows:
TO FIND THE TRUE POINT OF BEGINNING, begin at the point formed by the
intersection of the northernmost right-of-way line of Highland Drive (a
50-foot right-of-way) with the easternmost right-of-way line of Peachtree
Road (a variable right-of-way being 80 feet at this point) and proceed
thence in a northerly direction along the aforesaid easternmost
right-of-way line, following the curvature thereof, a distance of 365.1
feet to an iron pin which is THE TRUE POINT OF BEGINNING.
FROM THE TRUE POINT OF BEGINNING THUS ESTABLISHED proceed thence along the
aforesaid easternmost right-of-way line north 13(degree)43'08" east a
distance of 37.39 feet to a point on the aforesaid easternmost right-of-way
line; proceed thence along the aforesaid easternmost right-of-way line
along an arc of a curve to the right, an arc distance of 179.12 feet to a
point, said arc being subtended by a chord 178.99 feet in length and
bearing north 20(degree)26'46" east; proceed thence along the aforesaid
easternmost right-of-way line north 26(degree)16'11" east a distance of
48.21 feet to a point on the aforesaid easternmost right-of-way line;
proceed thence along the aforesaid easternmost right-of-way line north
28(degree)17'14" east 48.18 feet to a point on the aforesaid easternmost
right-of-way line; proceed thence along the aforesaid easternmost
right-of-way line north 30(degree)11'09" east a distance of 48.15 feet to a
point on the aforesaid easternmost right-of-way line; proceed thence north
32(degree)20'44~ east a distance of 57.74 feet to a point on the aforesaid
easternmost right-of-way line; proceed thence along the aforesaid
easternmost right-of-way line north 32(degree)20'44" east a distance of
8.44 feet to a point on the aforesaid easternmost right-of-way line;
proceed thence along an arc of a curve to the left, departing from the
aforesaid easternmost right-of-way line, an arc distance of 178.88 feet,
said arc being subtended by a chord 178.87 feet in length and bearing south
32(degree)44'02" east; proceed thence along an arc of a curve to the left,
an arc distance of 23.09 feet to a point, said arc being subtended by a
chord 23.09 feet in length and bearing south 31(degree)15'01" east;
proceed thence south 31(degree)11'25" west, a distance of 26.49 feet to a
point; proceed thence south 81(degree)18'35" east, a distance of 35.04 feet
to a point; proceed thence south 14(degree)08'05" east, a distance of
140.56 feet to a point; proceed thence south 81(degree)21'18" east, a
distance of 036 feet to a point; proceed thence north 31(degree)11'25"
east, a distance of 366.62 feet to a point; proceed thence south
74(degree)31'03" east, a distance of 10.04 feet to a point; proceed thence
north 13(degree)51'45" west, a distance of 261.95 feet to a point; proceed
thence north 48(degree)03'44" west, a distance of 95.71 feet to a point
located on the aforesaid easternmost right-of-way line of Peachtree Road;
proceed thence along the aforesaid easternmost right-of-way line north
39(degree)15'08" east, a distance of 142.28 feet to a point; proceed thence
south 13(degree)51'45" east, a distance of 1,104.35 feet to a point located
<PAGE> 57
on the Land Lot line common to Land Lots 45 and 46 of the 17th District of
Fulton County, Georgia; proceed thence along the said common Land Lot line
north 89(degree)37'06" west, a distance of 363.25 feet; proceed thence,
departing from said common Land Lot line, north 12(degree)49'09" west, a
distance of 218.41 feet to a point; proceed thence north 79(degree)10'45"
west, a distance of 356.72 feet to a point located on the aforesaid
easternmost right-of-way line of Peachtree Road, said point being the, TRUE
POINT OF BEGINNING, said tract or parcel of land being more particularly
shown as "Phase I" on that certain survey by Mallett & Associates bearing
the seal and certification of Michael F. Lawler, Georgia Registered Land
Surveyor No. 1946, prepared for Overseas Partners Capital Corp., dated
December 20, 1993, last revised August 7, 1996, and bearing file no. 93153,
which survey is incorporated herein by this reference.
LESS AND EXCEPT that portion of the above property conveyed by the
following:
(1) Limited Warranty Deed from R-H Building Partners, Ltd., a Georgia
limited partnership, as to an undivided 50% interest and The Mutual Life
Insurance Company of New York a New York corporation, as to an undivided
50% interest, together doing business as Atlanta Financial Center
Associates, a Georgia Joint Venture to The Department of Transportation of
the State of Georgia dated December 22, 1986, filed for record December 23,
1986 at 1:41 p.m., recorded in Deed Book 10513, Page 108, Records of Fulton
County, Georgia
(2) Limited Warranty Deed from Atlanta Financial Center Associates, a
Georgia joint venture composed of The Mutual Life Insurance Company of New
York and R-H Building Partners, Ltd., to the Department of Transportation
of the State of Georgia, dated April 4, 1989, filed for record July 19,
1989 at 9:30 am., recorded in Deed Book 12667, Page 115, aforesaid Records.
TOGETHER WITH all easements appurtenant to the above property created by
the following:
(a) Parking Deck and Easement Agreement by and among Michael C. Carlos,
George C. Carlos, Andrew C. Carlos, and R-H Building Partners, Ltd., dated
July 15, 1981, recorded in Deed Book 7903, Page 165, aforesaid Records; as
amended by that certain Amendment of Parking Deck and Easement Agreement,
dated July 15, 1981, recorded in Deed Book 7903, Page 385, aforesaid
Records (said Amendment having been terminated by Agreement dated September
20, 1982, recorded in Deed Book 8255, Page 475, aforesaid Records); as
further amended by Second Amendment to Parking Deck and Easement Agreement,
dated July 18, 1985, recorded in Deed Book 9618, Page 37, aforesaid
Records; as further amended by that certain Third Amendment to Parking Deck
and Easement Agreement, dated as of July 18, 1985, recorded in Deed Book
10290, Page 389, aforesaid Records; as further amended by that certain
Declaration of Release dated December 22, 1986, recorded in Deed Book
10561, Page 358, aforesaid Records; as further amended by that certain
Fourth Amendment to Parking Deck and Easement Agreement, dated as of August
11, 1988, recorded in Deed Book 11790, Page 76, aforesaid Records.
2
<PAGE> 58
(b) Reciprocal Easement Agreement by and among Robinson-Humphrey
Properties, Inc., R-H Associates Bldg. II Corp. and Atlanta Financial
Center Associates, dated July 18, 1985, recorded in Deed Book 9618, Page
68, aforesaid Records; as amended by that certain First Amendment to
Reciprocal Easement Agreement, dated as of July 18, 1985, recorded in Deed
Book 10290, Page 411, aforesaid Records; as further amended by that certain
Declaration of Release, dated December 22, 1986, recorded in Deed Book
10561, Page 358, aforesaid Records; as further amended by that certain
Second Amendment to Reciprocal Easement Agreement, dated as of August 11,
1988, recorded in Deed Book 11790, Page 69, aforesaid Records.
(c) Agreement by and among R-H Associates Bldg. II Corp., Atlanta Financial
Center Associates, Robinson-Humphrey Properties, Inc. and the Department of
Transportation of the State of Georgia, dated July 18, 1985, recorded in
Deed Book 9618, Page 145, aforesaid Records; as amended by that certain
Amendment to Agreement dated as of July 18, 1985, recorded in Deed Book
10290, page 289, aforesaid Records; the interest of R-H Associates Bldg. II
Corp. thereunder having been assigned to Two Atlanta Financial Center
Associates by that certain Assignment and Assumption (DOT Agreements),
dated July 28, 1987, recorded in Deed Book 10973, Page 179, aforesaid
Records.
(d) Agreement Regarding Georgia 400 Extension, by and among R-H Associates
Bldg. II Corp., Robinson-Humphrey Properties, Inc., Atlanta Financial
Center Associates, MONY Mortgage Investors, and The Mutual Life Insurance
Company of New York dated July 18, 1985, recorded in Deed Book 9623, Page
75, aforesaid Records; as amended by that certain First Amendment to
Agreement Regarding Georgia Highway 400 Extension, dated as of July 18,
1985, recorded in Deed Book 10290, Page 419, aforesaid Records; the
interest of R-H Associates Bldg. II Corp. thereunder having been assigned
to Two Atlanta Financial Center Associates by that certain Assignment and
Assumption (DOT Agreements) dated July 28, 1987, recorded in Deed Book
10973, Page 179, aforesaid Records.
(e) Limited Warranty Deed from R-H Building Partners, Ltd., a Georgia
limited partnership, as to an undivided 50% interest and The Mutual Life
Insurance Company of New York a New York corporation, as to an undivided
50% interest, together doing business as Atlanta Financial Center
Associates, a Georgia Joint Venture to The Department of Transportation of
the State of Georgia, Dated December 22, 1986, filed for record December
23, 1986 at 1:41 p.m., recorded in Deed Book 10513, Page 108, aforesaid
Records.
(f) Limited Warranty Deed from Atlanta Financial Center Associates, a
Georgia joint venture composed of The Mutual Life Insurance Company of New
York and R-H Building Partners, Ltd., to the Department of Transportation
of the State of Georgia, dated April 4, 1989, filed for record July 19,
1989 at 9:30 a.m., recorded in Deed Book 12667, Page 115, aforesaid
Records.
3
<PAGE> 59
PHASE II
ALL THAT TRACT OR PARCEL OF LAND lying and being in Land Lot 45, 17th
District, City of Atlanta, Fulton County, Georgia and being more
particularly described as follows:
TO FIND THE TRUE POINT OF BEGINNING begin at a point formed by the
intersection of the easternmost right-of-way line of Peachtree Road (a
variable right-of-way being 80 feet at this point) with the northernmost
right-of-way line of Highland Drive (a 50-foot right-of-way) and proceed
thence in a northeasterly direction along the aforesaid easternmost
right-of-way line of Peachtree Road a distance of 365.1 feet to a point;
proceed thence in a northeasterly direction along the aforesaid easternmost
right-of-way line north 13(degree)43'08. east a distance of 3739 feet to a
point; proceed thence along the aforesaid easternmost right-of-way line,
following the curvature thereof to the right, an arc distance of 179.12
feet to a point, said arc being subtended by a chord 178.99 feet in length
and bearing north 20(degree)26'46" east; proceed thence in a northeasterly
direction along the aforesaid easternmost right-of-way line north
26(degree)16'11 east a distance of 48.21 feet to a point; proceed thence in
a northeasterly direction along the aforesaid easternmost right-of-way line
north 28(degree)17'14" east a distance of 48.18 feet to a point; proceed
thence in a northeasterly direction along the aforesaid easternmost
right-of-way line north 30(degree)11'09" east a distance of 48.15 feet to a
point; proceed thence in a northeasterly direction along the aforesaid
easternmost right-of-way line north 32(degree)20'44" east a distance of
57.74 feet to a point; proceed thence in a northeasterly direction along
the aforesaid easternmost right-of-way line north 55(degree)03'02" east a
distance of 8.44 feet to a point, said point being THE TRUE POINT OF
BEGINNING.
FROM THE TRUE POINT OF BEGINNING THUS ESTABLISHED proceed thence along the
aforesaid easternmost right-of-way line north 55(degree)32'07" east a
distance of 18.02 feet to a point; proceed thence in a southeasterly
direction along the aforesaid easterly right-of-way line, following the
curvature thereof to the right, an arc distance of 7.77 feet to a point,
said arc being subtended by a chord 7.77 feet in length and bearing south
31(degree)52'33. east; thence leave said right-of-way line and proceed in a
southeasterly direction along the arc of a curve to the left, an arc
distance of 171.77 feet to a point, said arc being subtended by a chord
171.77 feet in length and bearing south 32(degree)46'15" east; proceed
thence in a southeasterly direction along the arc of a curve to the left,
an arc distance of 14.05 feet to a point, said arc being subtended by a
chord 14.05 feet in length and bearing south 31(degree)08'45" east; proceed
thence north 31(degree)11'25" east a distance of 193.49 feet to a point;
proceed thence north 31(degree)11'25" east a distance of 3.77 feet to a
point; proceed thence south 74(degree)31'03" east a distance of 62.79 feet
to a point; proceed thence north 76(degree)11'25" east a distance of 74.14
feet to a point; proceed thence south 13(degree)51'45" east a distance of
41.61 feet; proceed thence north 74(degree)31'03" west a distance of 10.04
feet to a point; proceed thence south 31(degree)11'25" west a distance of
366.62 feet to a point; proceed thence north 81(degree)21'18" west a
distance of 036 feet to a point; proceed thence north 14(degree)08'05" west
a distance of 140.56 feet to a point; proceed thence north 81(degree)18'35"
west a distance of 35.04 feet to a point; proceed thence north
31(degree)11'25" east a distance of 26.49 feet to a point; proceed thence
along the arc of a curve to the right an arc distance of 23.09 feet to a
point, said arc being subtended by a chord 23.09 feet in length and bearing
north 31 (degree) 15'01" west; proceed thence
4
<PAGE> 60
along an arc of a curve to the right an arc distance of 178.88 feet to a
point, said arc being subtended by a chord 178.87 feet in length and
bearing north 32(degree)44'02" west, said point being THE TRUE POINT OF
BEGINNING, said tract or parcel of land being more particularly shown as
"Phase II" on that certain survey by Mallett & Associates, bearing the seal
and certification of Michael F. Lawler, Georgia Registered L and Surveyor
No. 1946, prepared for Overseas Partners Capital Corp., dated December 20,
1993, last revised August 7, 1996, and bearing file no. 93153, which survey
is incorporated herein by this reference.
LESS AND EXCEPT that portion of the above property conveyed by the
following:
(1) Limited Warranty Deed from R-H Associates Bldg. II Corp. to the
Department of Transportation, dated December 22, 1986, recorded in Deed
Book 10513, Page 127, aforesaid Records.
(2) Limited Warranty Deed from Two Atlanta Financial Center Associates, a
Georgia joint venture composed of The Mutual Life Insurance Company of New
York and R-H Associates Bldg. II Corp., to the Department of Transportation
of the State of Georgia dated April 4, 1989, filed for record July 19, 1989
at 9:30 arm, recorded in Deed Book 12667, Page 141, aforesaid Records.
TOGETHER WITH all easements appurtenant to the above property created by
the following:
(a) Parking Deck and Easement Agreement by and among Michael C. Carlos,
George C. Carlos, Andrew C. Carlos, and R-H Building Partners, Ltd., dated
July 15, 1981, recorded in Deed Book 7903, Page 165, aforesaid Records; as
amended by that certain Amendment of Parking Deck and Easement Agreement,
dated July 15, 1981, recorded in Deed Book 7903, Page 385, aforesaid
Records (said Amendment having been terminated by Agreement dated September
20, 1982, recorded in Deed Book 8255, Page 475, aforesaid Records); as
further amended by Second Amendment to Parking Deck and Easement Agreement,
dated July 18, 1985, recorded in Deed Book 9618, Page 37, aforesaid
Records; as further amended by that certain Third Amendment to Parking Deck
and Easement Agreement, dated as of July 18, 1985, recorded in Deed Book
10290, Page 389, aforesaid Records; as further amended by that certain
Declaration of Release dated December 22, 1986, recorded in Deed Book
10561, Page 358, aforesaid Records; as further amended by that certain
Fourth Amendment to Parking Deck and Easement Agreement, dated as of August
11, 1988, recorded in Deed Book 11790, Page 76, aforesaid Records.
(b) Reciprocal Easement Agreement by and among Robinson-Humphrey
Properties, Inc., R-H Associates Bldg. II Corp. and Atlanta Financial
Center Associates, dated July 18, 1985, recorded in Deed Book 9618, Page
68, aforesaid Records; as amended by that certain First Amendment to
Reciprocal Easement Agreement, dated as of July 18, 1985, recorded in Deed
Book 10290, Page 411, aforesaid Records; as further amended by that certain
Declaration of Release, dated December 22, 1986, recorded in Deed Book
10561, Page 358, aforesaid Records; as further amended by that certain
Second Amendment to Reciprocal
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Easement Agreement, dated as of August 11, 1988, recorded in Deed Book
11790, Page 69, aforesaid Records.
(c) Agreement by and among R-H Associates Bldg. II Corp., Atlanta Financial
Center Associates, Robinson-Humphrey Properties, Inc. and the Department of
Transportation of the State of Georgia, dated July 18, 1985, recorded in
Deed Book 9618, Page 145, aforesaid Records; as amended by that certain
Amendment to Agreement dated as of July 18, 1985, recorded in Deed Book
10290, Page 289, aforesaid Records; the interest of R-H Associates Bldg. II
Corp. thereunder having been assigned to Two Atlanta Financial Center
Associates by that certain Assignment and Assumption (DOT Agreements),
dated July 28, 1987, recorded in Deed Book 10973, Page 179, aforesaid
Records.
(d) Agreement Regarding Georgia 400 Extension, by and among R-H Associates
Bldg. II Corp., Robinson-Humphrey Properties, Inc., Atlanta Financial
Center Associates, MONY Mortgage Investors, and The Mutual Life Insurance
Company of New York, dated July 18, 1985, recorded in Deed Book 9623, Page
75, aforesaid Records; as amended by that certain First Amendment to
Agreement Regarding Georgia Highway 400 Extension, dated as of July 18,
1985, recorded in Deed Book 10290, Page 419, aforesaid Records; the
interest of R-H Associates Bldg. II Corp. thereunder having been assigned
to Two Atlanta Financial Center Associates by that certain Assignment and
Assumption (DOT Agreements) dated July 28, 1987, recorded in Deed Book
10973, Page 179, aforesaid Records.
(e) Limited Warranty Deed from Atlanta Financial Center Associates, a
Georgia joint venture composed of The Mutual Life Insurance Company of New
York and R-H Building Partners, Ltd., to the Department of Transportation
of the State of Georgia, dated April 4, 1989, filed for record July 19,
1989 at 9:30 a.m., recorded in Deed Book 12667, Page 127, aforesaid
Records.
(f) Limited Warranty Deed from Two Atlanta Financial Center Associates, a
Georgia joint venture composed of The Mutual Life Insurance Company of New
York and R-H Associates Bldg. II Corp., to the Department of Transportation
of the State of Georgia, dated April 4, 1989, filed for record July 19,
1989 at 9:30 a.m., recorded in Deed Book 12667, Page 141, aforesaid
Records.
PHASE III
All that tract or parcel of land lying and being in Land Lot 45, 17th
District, City of Atlanta, Fulton County, Georgia and being more
particularly described as follows:
TO FIND THE TRUE POINT OF BEGINNING begin at a point formed by the
intersection of the easternmost right-of-way line of Peachtree Road (a
variable right-of-way being 80 feet at this point) with the northernmost
right-of-way line of Highland Drive (a 50-foot right-of-way); proceed
thence in a northeasterly direction along the aforesaid easternmost
right-of-way line a distance of 365.1 feet to a point; proceed thence along
the aforesaid easternmost right-of-way line north 13(degree)43'08" east a
distance of 37.39 feet to a point; proceed thence
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along the aforesaid easternmost right-of-way line, following the curvature
thereof to the right, an arc distance of 179.12 feet to a point, said arc
being subtended by a chord 178.99 feet in length and bearing north
20(degree)26'46" east; proceed thence in a northeasterly direction along
the aforesaid easternmost right-of-way line north 26(degree)16'11" east a
distance of 48.21 feet to a point; proceed thence in a northeasterly
direction along the aforesaid easternmost right-of-way line north
28(degree)17'14" east a distance of 48.18 feet to a point; proceed thence
in a northeasterly direction along the aforesaid easternmost right-of-way
line north 30(degree)11'09" east a distance of 48.15 feet to a point;
proceed thence in a northeasterly direction along the aforesaid easternmost
right-of-way line north 32(degree)20'44" east a distance of 57.74 feet to a
point; proceed thence in a northeasterly direction along the aforesaid
easternmost right-of-way line north 55(degree)03'02" east a distance of
8.44 feet to a point; proceed thence in a northeasterly direction along the
aforesaid easternmost right-of-way line north 55(degree)32'07" east a
distance of 18.02 feet to a point; proceed thence in a southeasterly
direction along the aforesaid easternmost right-of-way line, following the
curvature thereof to the left, an arc distance of 7.77 feet to a point,
said arc being subtended by a chord 7.77 feet in length and bearing south
31(degree)52'33" east; proceed thence in a northeasterly direction along
the aforesaid easternmost right-of-way line north 35(degree)10'06" east a
distance of 74.16 feet to a point; proceed thence in a southeasterly
direction along the aforesaid easternmost right-of-way line south
58(degree)48'33" east a distance of 6.36 feet to a point; proceed thence in
a northeasterly direction along the aforesaid easternmost right-of-way line
north 31(degree)11'26" east a distance of 10.05 feet to a point; proceed
thence in a southeasterly direction along the aforesaid easternmost
right-of-way line south 58(degree)48'29" east a distance of 19 feet to a
point; proceed thence in a northeasterly direction along the aforesaid
easternmost right-of-way line north 31(degree)11'26" east a distance of
24.83 feet to a point; proceed thence in a northwesterly direction along
the aforesaid easternmost right-of-way line north 58(degree)48'44" west a
distance of 19 feet to a point; proceed thence in a northeasterly direction
along the aforesaid easterly right-of-way line north 31(degree)11'23" east
a distance of 22.01 feet to a point; proceed thence in a northeasterly
direction along the aforesaid easterly right-of-way line north
40(degree)58'56" east a distance of 74.76 feet to a point, said point
being THE TRUE POINT OF BEGINNING.
FROM THE TRUE POINT OF BEGINNING THUS ESTABLISHED proceed thence in a
northeasterly direction along the aforesaid easternmost right-of-way line
north 21(degree)19'11" west a distance of 7.91 feet to a point; proceed
thence in a northeasterly direction along the aforesaid easternmost
right-of-way line north 23(degree)34'11" east a distance of 38.38 feet to a
point; proceed thence in a northeasterly direction along the aforesaid
easternmost right-of-way line north 40(degree)15'17" east a distance of
62.82 feet to a point; proceed thence in a northeasterly direction along
the aforesaid easternmost right-of-way line north 39(degree)15'08" east a
distance OF 49.32 FEET TO A point; thence leave said right-of-way line and
proceed thence south 48(degree)03'44" east a diSTAnce of 95.71 feet to a
point; proceed thence south 13(degree)51'45" east a distance of 220.34 feet
to a POInt; proceed thence south 76(degree)11'25" west a distance of 74.14
feet to a point; proceed thence nortH 74(degree)31'03" west a distance of
62.79 feet to a point; proceed thence south 31(degree)11'25" west a
distance of 3.77 feet to a point; proceed thence in a northwesterly
direction along the arc of a curve to the right, an arc distance of 131.99
feet to a point, said arc being subtended by a chord 131.97 feet in length
and bearing north 26(degree)58'00" west to a point; proceed thence north
21(degree)19'11" west a
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distance of 38.37 feet to a point; said point being THE TRUE POINT OF
BEGINNING, said tract or parcel of land being more particularly shown as
"Phase III" on that certain survey prepared by Michael F. Lawler, Georgia
Registered Land Surveyor no. 1946, prepared for Overseas Partners Capital
Corp., dated December 20, 1993, last revised August 7, 1996, and bearing
file no. 93153, which survey is incorporated herein by this reference.
LESS AND EXCEPT that portion of the above property conveyed by that certain
Limited Warranty Deed from R-H Associates Bldg. III Corp., a Georgia
corporation to the Department of Transportation of the State of Georgia,
dated April 4, 1989, filed for record July 19, 1989 at 9:30 a.m., recorded
in Deed Book 12667, Page 222, aforesaid Records.
TOGETHER WITH all easements appurtenant to the above property created by
the following:
(a) Parking Deck and Easement Agreement among Michael G. Carlos, George C.
Carlos, Andrew C. Carlos and R-H Building Partners, Ltd., dated July 15,
1981, recorded at Deed Book 7903, page 165, Fulton County Records, as
amended by Amendment of Parking Deck and Easement Agreement dated July 15,
1981, recorded at Deed Book 7903, page 385, said Amendment having been
terminated by Agreement dated September 20, 1982, recorded at Deed Book
8255, page 475, as further amended by Second Amendment to Parking Deck and
Easement Agreement dated July 18, 1985, recorded at Deed Book 9618, page
37, and Third Amendment to Parking Deck and Easement Agreement dated as of
July 18, 1985, recorded in Deed Book 10290, page 389 and Declaration of
Release dated December 22, 1986, recorded at Deed Book 10561, page 358,
aforesaid records, as further amended by Fourth Amendment to Parking Deck
and Easement Agreement dated as of August 11, 1988, recorded in Deed Book
11790, page 76, aforesaid records.
(b) Reciprocal Easement Agreement among Atlanta Financial Center
Associates, R-H Associates Bldg. II Corp. and Robinson-Humphrey Properties,
Inc., dated July 18, 1985, recorded in Deed Book 9618, page 68, aforesaid
records, as amended by First Amendment to Reciprocal Easement Agreement
dated as of July 18, 1985, recorded at Deed Book 10290, page 411, as
further amended by Declaration of Release dated December 22, 1986, recorded
at Deed Book 10561, page 358, aforesaid records, as amended by Second
Amendment to Reciprocal Easement Agreement dated as of August 11, 1988,
recorded in Deed Book 11790, page 69, aforesaid records.
(c) Agreement among R-H Associates Bldg. II Corp., Atlanta Financial Center
Associates, Robinson-Humphrey Properties, Inc. and Department of
Transportation of State of Georgia, dated July 18, 1985, recorded at Deed
Book 9618, page 145, aforesaid records, as amended by Agreement dated as of
July 18, 1985, recorded at Deed Book 10290, page 289; the interest of R-H
Associates Bldg. II Corp. thereunder having been assigned to Two Atlanta
Financial Center Associates by that certain Assignment and Assumption (DOT
Agreements), dated July 28, 1987, recorded in Deed Book 10973, page 179,
aforesaid records.
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<PAGE> 64
(d) Encroachment Easement Agreement by and between Robinson-Humphrey
Properties, Inc. and Two Atlanta Financial Center Associates dated December
24, 1987, recorded at Deed Book 11269, page 265, aforesaid records.
(e) Agreement Regarding Georgia 400 Highway Extension among R-H Associates
Bldg. II Corp., Robinson-Humphrey Properties, Inc., Atlanta Financial
Center Associates, Trustees of Mony Mortgage Investors and The Mutual Life
Insurance Company of New York dated as of July 18, 1985, recorded at Deed
Book 9623, page 75, aforesaid records, as amended by First Amendment to
Agreement Regarding Georgia 400 Highway Extension dated as of July 18,
1985, recorded at Deed Book 10290, page 419, aforesaid records; the
interest of R-H Associates Bldg. II Corp. thereunder having been assigned
to Two Atlanta Financial Center Associates by that certain Assignment and
Assumption (DOT Agreements), dated July 28, 1987, recorded in Deed Book
10973, page 179, aforesaid records.
(f) Limited Warranty Deed from Robinson-Humphrey Properties, Inc. to
Department of Transportation of State of Georgia, dated July 18, 1985,
recorded at Deed Book 9618, page 288, aforesaid records, as corrected by
Corrective Limited Warranty Deed dated as of July 18, 1985, recorded at
Deed Book 10290, page 372, aforesaid records.
(g) Limited Warranty Deed from R-H Associates Bldg. III. Corp., a
Georgia corporation to the Department of Transportation of the State of
Georgia, dated April 4, 1989, filed for record July 19, 1989 at 9:30 am.,
recorded in Deed Book 12667, page 222, aforesaid records.
PHASE IV
All that tract or parcel of land lying and being in Land Lot 45, 17th
District, City of Atlanta, Fulton County, Georgia and being more
particularly described as follows:
TO FIND THE TRUE POINT OF BEGINNING begin at a point formed by the
intersection of the easternmost right-of-way line of Peachtree Road (a
variable right-of-way being 80 feet at this point) with the northernmost
right-of-way line of Highland Drive (a 50-foot right-of-way) and proceed
thence in a northeasterly direction along the aforesaid easternmost
right-of-way line a distance-of 365.1 feet; proceed thence along the
aforesaid easternmost right-of-way line, north 13(degree)43'08" east a
distance of 37.39 feet to a point; proceed thence in a northeasterly
direction along the aforesaid easternmost right-of-way line, following the
curvature thereof to the right, an arc distance of 179.12 feet to a point,
said arc being subtended by a chord 178.99 feet in length and bearing north
20(degree)26'46" east; proceed thence in a northeasterly direction along
the aforesaid easternmost right-of-way line north 26(degree)16'11" east a
distance of 48.21 feet to a point; proceed thence in a northeasterly
direction along the aforesaid easternmost right-of-way line north
28(degree)17'14" east a distance of 48.18 feet to a point; proceed thence
in a northeasterly direction along the aforesaid easternmost right-of-way
line north 30(degree)11'09" east a distance of 48.15 feet to a point;
proceed thence in a northeasterly direction along the aforesaid easternmost
right-of-way line north 32(degree)20'44" east a distance of 57.74 feet to a
point; proceed thence in a northeasterly direction along the aforesaid
easternmost right-of-way line north 55(degree)03'02" east a distance
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<PAGE> 65
of 8.44 feet to a point; proceed thence in a northeasterly direction along
the aforesaid easternmost right-of-way line north 55(degree)32'07" east a
distance of 18.02 feet to a point; proceed thence in a southeasterly
direction along the aforesaid easternmost right-of-way line, following the
curvature thereof to the left, an arc distance of 7.77 feet to a point,
said arc being subtended by a chord 7.77 feet in length and bearing south
31(degree)52'33" east, said point being THE TRUE POINT OF BEGINNING.
FROM THE TRUE POINT OF BEGINNING THUS ESTABLISHED proceed thence in a
northeasterly direction along the aforesaid easternmost right-of-way line
north 35(degree)10'06" east a distance of 74.16 feet to a point; proceed
thence in a southeasterly direction along the aforesaid easternmost
right-of-way line south 58(degree)48'33" east a distance of 6.36 feet to a
point; proceed thence in a northeasterly direction along the aforesaid
easternmost right-of-way line north 31(degree)11'26" east a distance of
10.05 feet to a point; proceed thence in a southeasterly direction along
the aforesaid easternmost right-of-way line south 58(degree)48'29" east a
distance of 19 feet to a point; proceed thence in a northeasterly direction
along the aforesaid easternmost right-of-way line north 31(degree)11'26"
east a distance of 24.83 feet to a point; proceed thence in a northwesterly
direction along the aforesaid easternmost right-of-way line north
58(degree)48'44" west a distance of 19 feet to a point; proceed thence in a
northeasterly direction along the aforesaid easternmost right-of-way line
north 31(degree)11'23" east a distance of 22.01 feet to a point; proceed
thence in a northeasterly direction along the aforesaid easternmost
right-of-way line north 40(degree)58'56" east a distance of 74.76 feet to a
point; thence leave said right-of-way line and proceed thence south
21(degree)19'11" east a distance of 3837 feet to a point; proceed thence in
a southeasterly direction along the arc of a curve to the left, an arc
distance of 131.99 feet to a point, said arc being subtended by a chord
131.97 feet in length and bearing south 26(degree)58'00" east; proceed
thence south 31(degree)11'25" west a distance of 193.49 feet to a point;
proceed thence in a northwesterly direction along the arc of a curve to the
right, an arc distance of 14.05 feet to a point, said arc being subtended
by a chord 14.05 feet in length and bearing north 31(degree)08'45" west,
proceed thence in a northwesterly direction along the arc of a curve to the
right, an arc distance of 171.77 feet to a point, said arc being subtended
by a chord 171.77 feet in length and bearing north 32(degree)46'15" west,
said point being located on the aforesaid easternmost right-of-way LINE AND
BEING THE TRUE POINT OF BEGINNING, Said Tract or Parcel of land being more
particularly shown as "Phase IV" on that certain survey by Mallett &
Associates bearing the seal and certification of Michael F. Lawler, Georgia
Registered Land Surveyor No. 1946, prepared for overseas partners Capital
Corp., dated December 20, 1993, last revised August 7, 1996, and bearing
file no. 93153, which survey is incorporated herein by this reference.
LESS AND EXCEPT that portion of the above property conveyed by the
following:
(1) Limited Warranty Deed from Robinson-Humphrey Properties, Inc. to the
Department of Transportation of the State of Georgia, dated July 18, 1985,
recorded in Deed Book 9618, Page 288, aforesaid Records; as corrected by
that certain Corrective Warranty Deed recorded in Deed Book 10290, Page
372, aforesaid Records.
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<PAGE> 66
(2) Limited Warranty Deed from Robinson-Humphrey Properties, Inc., a
Georgia corporation to the Department of Transportation of the State of
Georgia, dated April 4, 1989, filed for record July 19, 1989 at 9:30 a.m.,
recorded in Deed Book 12667, page 163, aforesaid records.
(3) Limited Warranty Deed from Robinson-Humphrey Properties, Inc, a Georgia
corporation to the Department of Transportation of the State of Georgia,
dated April 4, 1989, filed for record July 19, 1989 at 9:30 a.m., recorded
in Deed Book 12667, Page 192, aforesaid Records.
TOGETHER WITH all easements appurtenant to the above property created by
the following:
(a) Parking Deck and Easement Agreement by and among Michael C. Carlos,
George C. Carlos, Andrew C. Carlos, and R-H Building Partners, Ltd., dated
July 15, 1981, recorded in Deed Book 7903, Page 165, aforesaid Records; as
amended by that certain Amendment of Parking Deck and Easement Agreement,
dated July 15, 1981, recorded in Deed Book 7903, Page 385, aforesaid
Records (said Amendment having been terminated by Agreement dated September
20, 1982, recorded in Deed Book 8255, Page 475, aforesaid Records); as
further amended by Second Amendment to Parking Deck and Easement Agreement,
dated July 18, 1985, recorded in Deed Book 9618, Page 37, aforesaid
Records; as further amended by that certain Third Amendment to Parking Deck
and Easement Agreement, dated as of July 18, 1985, recorded in Deed Book
10290, Page 389, aforesaid Records; as further amended by that certain
Declaration of Release dated December 22, 1986, recorded in Deed Book
10561, Page 358, aforesaid Records; as further amended by that certain
Fourth Amendment to Parking Deck and Easement Agreement, dated as of August
11, 1988, recorded in Deed Book 11790, Page 76, aforesaid Records.
(b) Reciprocal Easement Agreement by and among Robinson-Humphrey
Properties, Inc., R-H Associates Bldg. II Corp. and Atlanta Financial
Center Associates, dated July 18, 1985, recorded in Deed Book 9618, Page
68, aforesaid Records; as amended by that certain First Amendment to
Reciprocal Easement Agreement, dated as of July 18, 1985, recorded in Deed
Book 10290, Page 411, aforesaid Records; as further amended by that certain
Declaration of Release, dated December 22, 1986, recorded in Deed Book
10561, Page 358, aforesaid Records; as further amended by that certain
Second Amendment to Reciprocal Easement Agreement, dated as of August 11,
1988, recorded in Deed Book 11790, Page 69, aforesaid Records.
(c) Agreement by and among R-H Associates Bldg. II Corp., Atlanta Financial
Center Associates, Robinson-Humphrey Properties, Inc. and the Department of
Transportation of the State of Georgia, dated July 18, 1985, recorded in
Deed Book 9618, Page 145, aforesaid Records; as amended by that certain
Amendment to Agreement dated as of July 18, 1985, recorded in Deed Book
10290, Page 289, aforesaid Records; the interest of R-H Associates Bldg. II
Corp. thereunder having been assigned to Two Atlanta Financial Center
Associates by that certain Assignment and Assumption (DOT Agreements),
dated July 28, 1987, recorded in Deed Book 10973, Page 179, aforesaid
Records.
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<PAGE> 67
(d) Agreement Regarding Georgia 400 Extension, by and among R-H Associates
Bldg. II Corp., Robinson-Humphrey Properties, Inc., Atlanta Financial
Center Associates, MONY Mortgage Investors, and The Mutual Life Insurance
Company of New York dated July 18, 1985, recorded in Deed Book 9623, Page
75, aforesaid Records; as amended by that certain First Amendment to
Agreement Regarding Georgia Highway 400 Extension, dated as of July 18,
1985, recorded in Deed Book 10290, Page 419, aforesaid Records; the
interest of R-H Associates Bldg. II Corp. thereunder having been assigned
to Two Atlanta Financial Center Associates by that certain Assignment and
Assumption (DOT Agreements) dated July 28, 1987, recorded in Deed Book
10973, Page 179, aforesaid Records.
(e) Limited Warranty Deed from Robinson-Humphrey Properties, Inc. to the
Department of Transportation of the State of Georgia, dated July 18, 1985,
recorded in Deed Book 9618, Page 288, aforesaid Records; as corrected by
that certain Corrective Warranty Deed recorded in Deed Book 10290, Page
372, aforesaid Records.
(f) Limited Warranty Deed from Robinson-Humphrey Properties, Inc., a
Georgia corporation to the Department of Transportation of the State of
Georgia, dated April 4, 1989, filed for record July 19, 1989 at 9:30 a.m.,
recorded in Deed Book 12667, Page 163, aforesaid Records.
(g) Limited Warranty Deed from Robinson-Humphrey Properties, Inc., a
Georgia corporation to the Department of Transportation of the State of
Georgia, dated April 4, 1989, filed for record July 19, 1989 at 9:30 a.m.,
recorded in Deed Book 12667, Page 192, aforesaid Records.
12
<PAGE> 68
EXHIBIT "D"
PERMITTED TITLE EXCEPTIONS
1. All City of Atlanta ad valorem taxes subsequent to the year 1996 and
all state and county ad valorem taxes subsequent to the year 1995.
2. Rights of tenants in possession pursuant to leases specifically assigned
by the Mutual Life Insurance Company of New York to Overseas Partners
Capital Corp.
3. All matters disclosed by the survey of the Property prepared by Michael
E. Lawler, Georgia Registered Land Surveyor No. 1946, dated December 20,
1993 and last revised August 7, 1996.
4. Indenture from J.W. Walters to Stratford Arms Apartments, Inc., dated
October 29, 1958, recorded in Deed Book 3389, Page 525, Records of Fulton
County, Georgia.
5. Sewer Easement from Beverly M. DuBose to Julian C. Jett and Julia G. Jett,
dated June 20, 1951, recorded in Deed Book 2661, Page 43, aforesaid Records.
6. General Utility Easement from B.M. DuBose to Georgia Power Company, dated
December 27, 1949, recorded in Deed Book 2498, page 464, aforesaid Records.
7. Easement from Atlanta Financial Center Associates to Georgia Power Company,
dated January 20, 1986, recorded in Deed Book 9948, Page 54, aforesaid
Records.
8. Easement from Atlanta Financial Center Associates to Georgia Power Company,
dated February 1, 1991, filed for record February 1, 1991 at 12:37 p.m.,
recorded in Deed Book 14030, Page 167, aforesaid Records.
9. Parking Deck and Easement Agreement by and among Michael C. Carlos, George
C. Carlos, Andrew C. Carlos, and R-H Building Partners, Ltd., dated July 15,
1981, recorded in Deed Book 7903, Page 165, aforesaid Records; as amended by
that certain Amendment of Parking Deck and Easement Agreement, dated
July 15, 1981, recorded in Deed Book 7903, Page 385, aforesaid Records
(said Amendment having been terminated by Agreement dated September 20,
1982, recorded in Deed Book 8255, Page 475, aforesaid Records); as further
amended by Second Amendment to Parking Deck and Easement Agreement, dated
July 18, 1985, recorded in Deed Book 9618, Page 37, aforesaid Records; as
further amended by that certain Third Amendment to Parking Deck and
Easement Agreement, dated as of July 18, 1985, recorded in Deed Book 10290,
Page 389, aforesaid Records; as further amended by that certain Declaration
of Release dated December 22, 1986, recorded in Deed Book 10561, Page 358,
aforesaid Records; as further amended by that certain Fourth Amendment to
Parking Deck and Easement Agreement, dated as of August 11, 1988, recorded
in Deed Book 11790, Page 76, aforesaid Records.
<PAGE> 69
10. Reciprocal Easement Agreement by and among Robinson-Humphrey Properties,
Inc., R-H Associates Bldg. II Corp. and Atlanta Financial Center
Associates, dated July 18, 1985, recorded in Deed Book 9618, Page 68,
aforesaid Records; as amended by that certain First Amendment to Reciprocal
Easement Agreement, dated as of July 18, 1985, recorded in Deed Book 10290,
Page 411, aforesaid Records; as further amended by that certain Declaration
of Release, dated December 22, 1986, recorded in Deed Book 10561, Page 358,
aforesaid Records; as further amended by that certain Second Amendment to
Reciprocal Easement Agreement, dated as of August 11, 1988, recorded in
Deed Book 11790, Page 69, aforesaid Records.
11. Agreement by and among R-H Associates Bldg II Corp., Atlanta Financial
Center Associates, Robinson-Humphrey Properties, Inc. and the Department of
Transportation of the State of Georgia, dated July 18, 1985, recorded in
Deed Book 9618, Page 145, aforesaid Records; as amended by that certain
Amendment to Agreement dated as of July 18, 1985, recorded in Deed Book
10290, Page 289, aforesaid Records; the interest of R-H Associates Bldg. II
Corp. thereunder having been assigned to Two Atlanta Financial Center
Associates by that certain Assignment and Assumption (DOT Agreements),
dated July 28, 1987, recorded in Deed Book 10973, Page 179, aforesaid
Records.
12. Easement Agreement by and between R-H Associates Bldg. II Corp. and the
Department of Transportation of the State of Georgia, dated July 18, 1985,
recorded in Deed Book 9618, Page 301, aforesaid Records; as amended by that
certain First Amendment to Easement Agreement, dated as of July 18, 1985,
recorded in Deed Book 10290, Page 383, aforesaid Records.
13. Agreement Regarding Georgia 400 Extension, by and among R-H Associates
Bldg. II Corp., Robinson-Humphrey Properties, Inc., Atlanta Financial
Center Associates, MONY Mortgage Investors, and The Mutual Life Insurance
Company of New York dated July 18, 1985, recorded in Deed Book 9623, Page
75, aforesaid Records; as amended by that certain First Amendment to
Agreement Regarding Georgia Highway 400 Extension, dated as of July 18,
1985, recorded in Deed Book 10290, Page 419, aforesaid Records; the
interest of R-H Associates Bldg. II Corp. thereunder having been assigned
to Two Atlanta Financial Center Associates by that certain Assignment and
Assumption (DOT Agreements) dated July 28, 1987, recorded in Deed Book
10973, Page 179, aforesaid Records.
14. Encroachment Easement Agreement by and between Robinson-Humphrey
Properties, Inc, a Georgia corporation and Two Atlanta Financial Center
Associates, a Georgia general partnership, dated December 24, 1987, filed
for record January 13, 1988 at 11:50 a.m., recorded in Deed Book 11269,
Page 265, aforesaid Records.
15. Easements contained in and limitations, restrictions and other matters
pertaining to the use and enjoyment of the easements reserved in that
certain Limited Warranty Deed from R-H Building Partners, Ltd., a Georgia
limited partnership, as to an undivided 50% interest and The Mutual Life
Insurance Company of New York, a
2
<PAGE> 70
New York corporation, as to an undivided 50% interest, together doing
business as Atlanta Financial Center Associates, a Georgia Joint Venture to
The Department of Transportation of the State of Georgia, dated December
22, 1986, filed for record December 23, 1986 at 1:41 p.m., recorded in Deed
Book 10513, Page 108, aforesaid Records.
16. Easements contained in and limitations, restrictions and other matters
pertaining to the use and enjoyment of the easements reserved in that
certain Limited Warranty Deed from R-H Associates Bldg. II Corp. to the
Department of Transportation, dated December 22, 1986, recorded in Deed
Book 10513, Page 127, aforesaid Records.
17. Easements contained in and limitations, restrictions and other matters
pertaining to the use and enjoyment of the easements reserved in that
certain Limited Warranty Deed from Atlanta Financial Center Associates, a
Georgia joint venture composed of The Mutual Life Insurance Company of New
York and R-H Building Partners, Ltd., to the Department of Transportation
of the State of Georgia, dated April 4, 1989, filed for record July 19,
1989 at 9:30 a.m., recorded in Deed Book 12667, Page 115, aforesaid
Records.
18. Easements contained in and limitations, restrictions and other matters
pertaining to the use and enjoyment of the easements reserved in that
certain Limited Warranty Deed from Two Atlanta Financial Center Associates,
a Georgia joint venture composed of The Mutual Life Insurance Company of
New York and R-H Associates Bldg. II Corp., to the Department of
Transportation of the State of Georgia, dated April 4, 1989, filed for
record July 19, 1989 at 9:30 a.m., recorded in Deed Book 12667, Page 141,
aforesaid Records.
19. Easements contained in and limitations, restrictions and other matters
pertaining to the use and enjoyment of the easements reserved in that
certain limited Warranty Deed from R-H Associates Bldg. Corp., a Georgia
corporation to the Department of Transportation of the State of Georgia,
dated April 4, 1989, filed for record July 19, 1989 at 9:30 a.m., recorded
in Deed Book 12667, Page 222, aforesaid Records.
20. Easement contained in and limitations, restrictions and other matters
pertaining to the use and enjoyment of the easements reserved in that
certain Limited Warranty Deed from Robinson-Humphrey Properties, Inc. to
the Department of Transportation of the State of Georgia, dated July 18,
1985, recorded in Deed Book 9618, Page 288, aforesaid Records; as corrected
by that certain Corrective Warranty Deed recorded in Deed Book 10290, Page
372, aforesaid Records.
21. Access Easement Agreement from Robinson-Humphrey Properties, Inc., to the
Department of Transportation of the State of Georgia, dated April 4, 1989,
recorded in Deed Book 12667, Page 100, aforesaid Records.
3
<PAGE> 71
22. Easements contained in and limitations, restrictions and other matters
pertaining to the use and enjoyment of the easements reserved in that
certain limited Warranty Deed from Robinson-Humphrey Properties, Inc., a
Georgia corporation to the Department of Transportation of the State of
Georgia, dated April 4, 1989, filed for record July 19, 1989 at 9:30 a.m.,
recorded in Deed Book 12667, Page 163, aforesaid Records.
23. Easements contained in and limitations, restrictions and other matters
pertaining to the use and enjoyment of the easements reserved in that
certain Limited Warranty Deed from Robinson-Humphrey Properties, Inc., a
Georgia corporation to the Department of Transportation of the State of
Georgia, dated April 4, 1989, filed for record July 19, 1989 at 9:30 a.m.,
recorded in Deed Book 12667, Page 192, aforesaid Records.
24. Easement from R-H Bldg. Partners, Ltd. to Georgia Power Company dated May
24, 1982 and recorded in Deed Book 8163, Page 272, aforesaid Records.
4
<PAGE> 72
EXHIBIT "E"
SCHEDULE OF SERVICE CONTRACTS
1. Management Agreement between Balcor Property Management, Inc. as Agent for
Atlanta Financial Center Associates, as Owner, and APCOA, Inc., as
Operator, dated September 21, 1993; as amended by Amendment to Management
Agreement, with Allegiance Realty Group, Inc. as Agent for The Mutual Life
Insurance Company of New York, as Owner and APCOA, Inc. as Operator, dated
October 12, 1994.
2. Memorandum dated February 7, 1996 from Terry McDurmon to Bert S. Calvert
and Libby McClay (all of ARES) regarding Cellular Phone, Pagers and Radios.
Cellular Phone with AirTouch Cellular; and Pagers with AirTouch Paging and
Mobilecomm.
3. Lease Agreement No. 80956 between Alco Capital Resource, Inc. and
Allegiance Realty Group, Inc. as agent for Mutual of New York, dated
September 20, 1994 for fax machine.
4. Drop Box Agreement between Airborne Express and ARES, Inc. dated December
27, 1995.
5. Letter Agreement from Robinson-Humphrey Properties, Inc. to Barkin-Leeds
Ltd. dated February 13, 1990 regarding rotating art exhibit.
6. Service Contract between Allegiance Realty Group, Inc. as Agent and Barton
Protective Services, Inc., dated March 30, 1994 for contract security.
7. Memorandum dated January 1, 1996 from Whitney L. Shepherd [of ARES] to
Buckhead Florist file regarding verbal agreement to provide weekly flower
arrangements in the lobbies of the buildings and management and accounting
offices.
8. P.M. Agreement between Cummins-Onan South and Two Atlanta Financial Center
Associates, dated March 8, 1993 for emergency generator in East Tower.
9. P.M. Agreement between Cummins-Onan South and Atlanta Financial Center
Associates, dated March 8, 1993 for emergency generator in South Tower.
10. P.M. Agreement between Cummins-Onan South and R-H Assoc. Bldg. III Corp.,
dated March 8, 1993 for emergency generator in North Tower.
11. Chiller Operation Assurance Program Service Agreement between Allegiance
Realty Group as Managing Agents for MONY and Building Systems and Services
Division [of] Carrier Corporation, dated May 10, 1994 (South Tower).
<PAGE> 73
12. Carrier Operation Assurance Program Service Agreement between Allegiance
Realty Group as Managing Agents for RH Associates Building III Corporation
and Building Systems and Services Division [of] Carrier Corporation, dated
May 10, 1994 (North Tower).
13. Carrier Operation Assurance Program between Allegiance Realty Group as
Managing Agents for MONY and Building Systems and Services Division [of]
Carrier Corporation, dated May 10, 1994 (East Tower).
14. Service Contract between The Mutual Life Insurance Company of New York by
ARES, Inc. and Distribution Associates South, Inc., dated January 1, 1995
for card access equipment maintenance.
15. Lighting Retrofit Proposal and Agreement of Purchase between E. Sam Jones
Distributor, Inc. and Allegiance Realty Group, Inc. as Agent for The Mutual
Life Insurance Company of New York, dated April 18, 1994.
16. Correspondence and Invoice Re: Service Contract between Facility Management
Systems, Inc. and Ares, Inc., dated November 8, 1995 for Tour Watch
maintenance.
17. Customer Convenience Network Placement Agreement between Federal Express
Corporation and ARES, Inc., dated January 24, 1996.
18. Delivery and Acceptance Notice between First United Leasing Corp. and The
Mutual Life Insurance Company of New York, dated October 4, 1995 for fax
machine.
19. Contract for Electric Power Service between R-H Associates Bldg. III Corp.
and Georgia Power Company dated September 20, 1989.
20. Contract for Electric Power Service between Two Atlanta Financial Center
Assoc. and Georgia Power Company dated January 6, 1992.
21. Contract for Electric Power Service between R-H Associates Bldg. III Corp.
and Georgia Power Company dated July 9, 1991.
22. Contract for Electric Power Service and Schedule TOU-1 between R-H Bldg.
Partners Ltd. and Georgia Power Company dated March 15, 1988.
23. Demand Control-Meter Contract between Georgia Power Company and R-H
Associates Bldg. III Corp., dated September 19, 1991 for electric load
equipment.
24. Master Contract for Electric Power Service between Georgia Power Company
and Allegiance Realty Group, Inc. as agent for The Mutual Life Insurance
Company of New York dated August 23, 1994 for electrical energy.
2
<PAGE> 74
25. Service Contract between ARES, Inc., as Agent, for The Mutual Life
Insurance Company of New York and Gibbs Landscape Company, dated January
23, 1996 for exterior landscape.
26. Service Contract between The Mutual Life Insurance Company of New York by
ARES, Inc., as Agent, and Gibbs Landscape Company, dated April 1, 1995 for
interior plant maintenance.
27. Fire Protection System Inspection Agreement between R-H Assoc. Bldg. III
Corp. and Automatic Sprinkler Corporation of America (as assigned to
Grinnell Corporation), dated October 27, 1992 (North Tower).
28. Fire Protection System Inspection Agreement between Atlanta Financial
Center Assoc. and Automatic Sprinkler Corporation of America (as assigned
to Grinnell Corporation), dated October 27, 1992 (South Tower).
29. Fire Protection System Inspection Agreement between Robinson Humphrey
Properties, Inc., as Agent for Two Atlanta Financial Center Associates and
Automatic Sprinkler Corporation of America (as assigned to Grinnell
Corporation), dated May 18, 1989 (East Tower).
30. Agreement between ARES, Inc. as agent for The Mutual Life Insurance Company
of New York and Instant Color, Inc., dated February 22, 1996 for seasonal
color beds around property.
31. Service Contract between Allegiance Realty Group, Inc. as Agent, and I&S
Operations, Inc., dated May 9, 1994 for co-generation gear maintenance.
32. Open-End Finance Lease Agreement between Leased Vehicles Company, Inc. and
Allegiance Realty Group, Inc. as agent for The Mutual Life Insurance
Company of New York and R-H Associates Building III Corp., dated December
15, 1986 for pickup truck and 20-foot bus.
33. [Elevator Maintenance Agreement] between Millar Elevator Service Company
and Atlanta Financial Center Associates, Two Atlanta Financial Center
Associates [and] R-H Associates Bldg. III Corp. dated April 1, 1993 (South
and East Towers) with Amendment dated September 24, 1993 (adding North
Tower) and Amendment dated March 28, 1994 (adding parking garage).
34. Agreement between National Utility Service, Inc. and Robinson-Humphrey
Properties, Inc. dated November 29, 1988, for energy cost control program.
35. Memorandum dated January 1, 1996 from Whitney L. Shepherd [of ARES] to
Northlake Industries File regarding verbal agreement for quarterly carpet
cleaning.
3
<PAGE> 75
36. Contract between Atlanta Financial Center and Atlanta/Fulton County
Emergency Management Agency dated December 15, 1993 for NovAlert Emergency
Contact.
37. Pest Control Service Agreement between Atlanta Fin. Center Associates and
Orkin Exterminating Co., Inc., dated December 21, 1982.
38. Pest Control Service Agreement between R-H Associates Bldg. III Corp. and
Orkin Exterminating Company, Inc., dated September 19, 1989.
39. Pest Control Service Agreement between Two Atlanta Financial Center
Associates and Orkin Exterminating Company, Inc., dated June 12, 1987.
40. Agreement between ARES and Robbie R. Gring, Inc., dated February 23, 1996
for marketing services.
41. Letter Agreement between Balcor Property Management, Inc. and Shumaker
Furniture, dated March 12, 1993 for mill work.
42. Agreement between Simplex Time Recorder Co. and R-H Associates Building III
Corporation, dated May 6, 1993 for life safety fire alarm system testing
and maintenance (North Tower).
43. Agreement between Simplex Time Recorder Co. and Two Atlanta Financial
Center Associates, dated May 14, 1993 for life safety fire alarm system
testing and maintenance (East Tower).
44. Agreement between Simplex Time Recorder Co. and Atlanta Financial Center
Associates, dated May 14, 1993 for life safety fire alarm system testing
and maintenance (South Tower).
45. Agreement between Simplex Time Recorder Co. and Allegiance Realty Group,
Inc., as Agent for Atlanta Financial Center Owners, dated November 16, 1993
for life safety fire alarm system testing and maintenance (Parking Deck).
46. Total Copy Coverage Maintenance Agreement between Standard Office Systems
and ARES, Inc. as Agent for The Mutual Life Insurance Company of New York,
dated March 15, 1995.
47. Equipment Lease Agreement between Standard Office Systems and ARES, Inc. as
Agent for The Mutual Life Insurance Company of New York, dated March 15,
1995 for mita copier.
48. [Pager Contract] between MobileComm and R.H. Building 3 Corp. [and]
ARES,Inc., dated April 18, 1996.
4
<PAGE> 76
49. Master Lease Purchase Equipment Agreement between UT Leasing Services, Inc.
and Two Atlanta Financial Center Associates, dated _______________, 1991
for demand equipment purchase leases.
50. Service Contract between The Mutual Life Insurance Company of New York by
ARES, Inc. and United Waste Service, Inc., dated June 1, 1995 for waste
removal services for one (1) recycling compactor.
51. Service Contract between The Mutual Life Insurance Company of New York by
ARES, Inc. and United Waste Service, Inc., dated May 22, 1995 for waste
removal services for two (2) waste compactors.
52. Agreement between United Parcel Service, Inc. and Atlanta Financial Center,
dated June 30, 1995 (South Tower).
53. Agreement between United Parcel Service, Inc. and Two Atlanta Financial
Center Assoc., dated January 1, 1993 (East Tower).
54. Service Contract between The Mutual Life Insurance Company of New York by
ARES, Inc. and Valcourt Building Services of Georgia, Inc., dated March 29,
1995 for window washing.
55. Postage Stamp Vending Agreement between Wooten Postage Stamp Vending, Inc.
and Two Atlanta Financial Center Associates, dated January 14, 1991.
56. Service Contract between The Mutual Life Insurance Company of New York by
ARES, Inc. and Perimeter Maintenance Corporation, dated September 22, 1995
for janitorial and day porter services.
57. Property Tax Consulting Agreement between ARES, Inc. and Southern Tax
Consultants, d/b/a The Stallings Group dated June 6, 1996 for the 1996 ad
valorem tax program.
5
<PAGE> 77
EXHIBIT "F"
SCHEDULE OF REQUIREMENT VIOLATIONS
NONE
<PAGE> 78
EXHIBIT "G"
SCHEDULE OF PENDING OR THREATENED LITIGATION
1. Possible claim of C. Cooper in connection with alleged personal injury
resulting from fall in parking deck on or about March 28, 1996.
2. Possible claim of Michelle Davis in connection with alleged personal injury
resulting from fall on parking deck ramp on or about November 3, 1995.
3. Possible claim of Pam Game in connection with alleged personal injury
resulting from fall on parking deck ramp on or about January 11, 1995.
4. Possible claim of Dewey Jones in connection with alleged personal injury
resulting from bicycle fall on or about August 8, 1996.
5. Possible claim of Ronald Amerson in connection with alleged personal injury
resulting from alleged elevator malfunction on or about January 12, 1993.
6. Possible claim of Carolyn Rand in connection with alleged personal injury
resulting from fall in the Terrace Level of the North Tower on or about
August 30, 1993.
7. Possible claim of Becky ________________ of Morris, Manning & Martin
resulting from fall in parking garage on or about September 1, 1993.
8. Possible claim of Laurie Pierce in connection with alleged personal injury
resulting from fall in East Tower on or about February 2, 1996.
9. Possible claim of Ann Schildhammer in connection with alleged personal
injury resulting from fall in East Tower on or about February 2, 1996.
<PAGE> 79
EXHIBIT "H"
SCHEDULE OF UNPAID CONTRACTORS
<TABLE>
<CAPTION>
CONTRACTOR PROJECT Amt. of Amt. Paid as Est. to be pd. Est.Amt.
Obligation of 08/08/96 Prior to Close at Close
<S> <C> <C> <C> <C> <C> <C>
E. Sam Jones Exterior light fixtures $550.00 $0.00 $0.00 $550.00 *
Allison Smith Install exterior light fixtures $1,000.00 $0.00 $0.00 $1,000.00 *
Millar Elevator Services ADA Telephones - Deck 2,200.00 $0.00 $0.00 $2,200.00 *
Western Waterproofing Column repair in deck $3,621.00 $0.00 $0.00 $3,821.00 *
Asphalt Doctor Concrete and asphalt repairs $6,534.00 $0.00 $0.00 $6,534.00 *
Envirocare Pressure wash GA 400 facade $4,000.00 $0.00 $0.00 $4,000.00 *
Arbor Guard Mature tree prunning $3,558.00 $0.00 $0.00 $3,556.00 *
American Food Management Tenant Event - July 16 Olympic kick-off $12,918.00 $0.00 $12,918.00 $0.00 *
breakfast
Fletcher Barnhardt Tenant Event - 16 Olympic shirt give-away $8,064.00 $0.00 $0.00 $8,064.00 *
Premium Distributors Tenant Event - July 24 Olympic popsicles $456.00 $0.00 $456.00 $0.00 *
Partnership Design fees - graphics $3,382.41 $0.00 $0.00 $3,382.41 *
Stallings Group 1996 ad valorem consultant fees $6,500.00 $687.50 $0.00 $5,812.50 **
Sky Design ADA signage $1,600.00 $0.00 $0.00 $1,600.00 *
Operational Security Systems GA 400 security cameras $32,577.91 $0.00 $32,577.91 $0.00 *
Custom Plastics Condiment fixtures $1,790.00 $0.00 $0.00 $1,790.00 *
Craftmark Relaminating of trash unit $2,850.00 $0.00 $0.00 $2,850.00 *
Northside Cabinets Tray slide modification $650.00 $0.00 $0.00 $850.00 *
Jove Daniels Busby Design fees - common area projects $27,680.00 $0.00 $0.00 $27,680.00 *
Dell Corporation Computerized work order system $6,000.00 $855.00 $5,145.00 $0.00 *
E. Sam Jones Replace light switches $5,400.00 $500.00 $0.00 $4,900.00 *
Millar Elevator ADA elevator upgrades $25,000.00 $0.00 $25,000.00 $0.00 *
Millar Elevator ADA elevator upgrades - telephones $3,300.00 $0.00 $0.00 $3,300.00 *
Griffin Construction Terrace level finishes $13,000.00 $0.00 $13,000.00 $0.00 *
Carrier Air filter racks $1,100.00 $0.00 $0.00 $1,100.00 *
Specialty Finishes Deferred Maintenance $38,113.00 $35,613.00 $0.00 $2,500.00 *
J.A. Sexton Pipes in restrooms to ADA $2,160.00 $33.00 $0.00 $2,217.00 *
Millar Elevator ADA telephones in elevators $5,500.00 $0.00 $0.00 $5,500.00 *
McKenney's Install VAV boxes in restrooms $11,550.00 $7,000.00 $4,550.00 $0.00 *
McKenney's Upsize AHU's on floors 1 1 & 15 $17,000.00 $7,308.00 $9,692.00 $0.00 *
Millar Elevator ADA telephones in elevators $2,750.00 $0.00 $0.00 $2,750.00 *
McKenney's BAC - increase venitilation in womens room $1,925.00 $0.00 $0.00 $1,925.00 *
Mosaic Tile BAC - Replace wooden benches in womens room $1,200.00 $0.00 $0.00 $1,200.00 *
Bell Man BAC - tile in sink area $3,100.00 $0.00 $0.00 3,100.00 *
G.F. Richardson BAC - replace sheet rock ceiling in $2,160.00 $0.00 $0.00 $2,160.00 *
womens room
Shumaker BAC - furniture $345.00 $0.00 $345.00 $0.00 *
Arc Com BAC - furniture $364.00 $0.00 $364.00 $0.00 *
Carnegie BAC - furniture $174.00 $0.00 $174.00 $0.00 *
Claudia's BAC - furniture $875.00 $0.00 $875.00 $0.00 *
Sedgwick James Sedgwick James remaining T1 $55,794.00 $0.00 $0.00 $55,794.00 *
H. & D. (Contractor TBD) Higgins and Dubner T1 $6,300.00 $0.00 $0.00 $8,300.00 *
Starbuck's Starbuck's T1 $43,080.00 $0.00 $0.00 $43,080.00 *
Nova Business Insurance Suite 400 T1 $58,140.00 $9,273.00 $0.00 $46,867.00 *
B. Insurance (Contractor TBD)Business Insurance Suite 430 T1 $58,425.00 $0.00 $0.00 $58,425.00 *
Haworth Haworth T1 $51,970.00 $137.00 $51,833.00 $0.00 *
Nova Hogan T1 $8,553.00 $7,943.00 $0.00 $610.00 *
Griffin Main America T1 $8,923.00 $7,912.00 $0.00 $1,011.00 *
Benise Dowling Armstrong T1 $8,480.00 $5,400.00 $0.00 $1,080.00 *
Nova Air One T1 $20,062.00 $16,359.00 $0.00 $3,703.00 *
Enterprise (Contractor TBD) Enterprise T1 $8,995.00 $0.00 $0.00 $8,995.00 *
R. Wayne (Contractor TBD) Robert Wayne's renewal T1 $2,290.00 $0.00 $0.00 $2,290.00 *
- renewal effective 1/1/97
</TABLE>
<PAGE> 80
EXHIBIT "H"
SCHEDULE OF UNPAID CONTRACTORS
<TABLE>
<CAPTION>
CONTRACTOR PROJECT Amt. of Amt. Paid as Est. to be pd. Est. Amt.
Obligation of 08/08/96 Prior to Close at Close
<S> <C> <C> <C> <C> <C> <C>
ARES, Inc. Commission on Enterprise expansion $489.95 $0.00 $989.95 $0.00 *
Wesley Corporation Commission on Enterprise expansion $979.89 $0.00 $979.89 $0.00 *
ARES, Inc. Commission on Robert Wayne renewal $1,173.63 $0.00 $1,173.83 $0.00 *
Nova Rowland T1 $58,620.00 $0.00 $0.00 $58,820.00 *
Griffin Interim Accounting T1 $7,425.00 $8,588.00 $0.00 $837.00 *
BellSouth (Contractor TBD) BellSouth T1 - renewal effective 11/17/96 $231,730.00 $0.00 $0.00 $231,730.00
Watkins (Contractor TBD) Watkins renewal T1 $13,920.00 $10,351.00 $0.00 $3,569.00 *
T. Financial (Contract TBD) Thomas Financial T1 $6,000.00 $0.00 $0.00 $6,000.00 *
ARES, Inc. Commission for Beckman renewal $2,929.00 $0.00 $2,329.02 $0.00 *
Group VI Commission for Beckman renewal $4,658.04 $0.00 $4,858.04 $0.00 *
</TABLE>
* These items shall be the responsibility of Seller. The remaining items
shall be the responsibility of Purchaser.
** The 1996 ad valorem consultant fees shall be prorated pursuant to the
Purchase and Sale Agreement.
Filer: exhibh.wk4
Timer: 11:01:41 AM
Date: 09-Aug-95
<PAGE> 81
EXHIBIT "I"
SCHEDULE OF ENVIRONMENTAL REPORTS
1. Phase One Indoor Air Quality Report for Atlanta Financial Center, dated
June 10, 1996, prepared by Environmental Design International, Ltd.
2. Letter re: Results of Indoor Air Quality Survey, dated September 9, 1993,
prepared by Law Engineering, Inc., Project No. 5560545901
3. Report of Phase I Environmental Assessment, dated August 8, 1995, prepared
by Law Engineering, Inc., Project No. 579-09058.01
4. Phase I Environmental Site Assessment, Atlanta Financial Center, North
Tower, dated October 10, 1994, prepared by SES Environmental Services,
Inc., Project No. 94-50022
5. Asbestos Inspection, dated September 20, 1993, prepared by EMCON
Southeast, Project No. 2027.001.93
6. State of Georgia Annual Underground Storage Tank Registration Form dated
May 13, 1996. Facility I.D. No. 9060438, Owner I.D. No. 7075 (2 diesel
tanks)
<PAGE> 82
EXHIBIT "J"
AMERICAN LAND TITLE ASSOCIATION COMMITMENT - 1966
CHICAGO TITLE INSURANCE COMPANY
COMMITMENT FOR TITLE INSURANCE
CHICAGO TITLE INSURANCE COMPANY, a corporation of Missouri, herein called
the Company, for a valuable consideration, hereby commits to issue its policy or
policies of title insurance, as identified in Schedule A, in favor of the
proposed Insured named in Schedule A, as owner or mortgagee of the estate or
interest covered hereby in the land described or referred to in Schedule A, upon
payment of the premiums and charges therefor; a11 subject to the provisions of
Schedules A and B and to the Conditions and Stipulations hereof.
This Commitment shall be effective only when the identity of the proposed
Insured and the amount of the policy or policies committed for have been
inserted in Schedule A hereof by the Company, either at the time of the issuance
of this Commitment or by subsequent endorsement.
This Commitment is preliminary to the issuance of such policy or policies
of title insurance and all liability and obligations hereunder shall cease and
terminate six months after the effective date hereof or when the policy or
policies committed for shall issue, whichever first occurs, provided that the
failure to issue such policy or policies is not the fault of the Company.
IN WITNESS WHEREOF, Chicago Title Insurance Company has caused this
Commitment to be signed and sealed as of the effective date of Commitment shown
in Schedule A, the Commitment to become valid when countersigned by an
authorized signatory.
CHICAGO TITLE INSURANCE COMPANY
By:
Issued by:
RAMSAY & CALLOWAY Title /s/
SERVICES, INC.
56 PERIMETER CENTER EAST, N.E. President.
SUITE 400
ATLANTA, GA 30346
(770) 698-7960 ATTEST:
/s/ [SEAL] /s/ Thomas J. Adams
- ----------------------------- ----------------------------------
Authorized Signatory Secretary.
<PAGE> 83
ALTA COMMITMENT FOR TITLE INSURANCE-cmb-7/22/96-CHICAGO TITLE INSURANCE COMPANY
SCHEDULE A
- --------------------------------------------------------------------------------
COMMITMENT NO. EFFECTIVE DATE OF COMMITMENT
2-08478 May 17, 1996 at 5:00 p.m.
- --------------------------------------------------------------------------------
YOUR NO.
1677.010/ECR
- --------------------------------------------------------------------------------
PREPARED FOR: James W. Addison, Esquire
TROUTMAN SANDERS, L.L.P.
INQUIRIES SHOULD BE DIRECTED TO: RAMSAY & CALLOWAY TITLE SERVICES, INC.
56 PERIMETER CENTER EAST, N.E.
SUITE 400
ATLANTA, GEORGIA 30346
(770) 698-7960
1. POLICY OR POLICIES TO BE ISSUED: AMOUNT
*ALTA OWNERS POLICY (1992) $125,500,000.00
PROPOSED INSURED:
Overseas Partners Capital Corp., a Delaware corporation
2. The estate or interest in the land described or referred to in this
Commitment and covered herein is a Fee Simple and Easement
3. Title to said estate or interest in said land is at the effective date
hereof vested in:
The Mutual Life Insurance Company of New York, a New York corporation
4. The land referred to in this Commitment is located in the County of
Fulton, State of Georgia, and described as follows:
ALL THAT TRACT or parcel of land lying and being in Land Lots 45 and 62 of
the 17th District of Fulton County, Georgia, being more particularly
described on Exhibit "A" attached hereto and by this reference
incorporated herein.
1
<PAGE> 84
- --------------------------------------------------------------------------------
COMMITMENT NO. PART I, SCHEDULE B
2-08478
- --------------------------------------------------------------------------------
I. THE FOLLOWING ARE REQUIREMENTS TO BE COMPLIED WITH:
1. Instruments necessary to create the estate or interest to be insured must
be properly executed, delivered and duly filed for record; to wit:
LIMITED WARRANTY DEED from The Mutual Life Insurance Company of New York,
a New York corporation to Overseas Partners Capital Corp., a Delaware
corporation, conveying title to subject property.
This deed must be executed pursuant to proper corporate authority, and the
Company must be furnished satisfactory documentary proof thereof.
2. Payment to or for the grantor of the full consideration for the estate or
interest to be insured.
3. Payment of taxes as follows:
(a) (Phrase I, etal) State and County Taxes for the year 1996 are open
to pay in the amount of $129,801.66 {Due October 15, 1996) under May
Reference No. 17-45-LL-56-4; City of Atlanta Taxes for the year 1996
are open to pay in the amount of $335,334.40 (Due August 15, 1996)
under Map Reference No. 17-45-LL-56-4.
(b) (Phase II) State and County Taxes for the year 1996 are open to pay
in the amount of $154,463.89 (Due October 15,1996) under Map
Reference No. 17-45-LL-67-1; City of Atlanta Taxes for the year 1996
are open to pay in the amount of $397,136.43 (Due October 15, 1996)
under Map Reference No. 17-46-LL-67-1.
NOTE: 1995 and 1996 taxes are under appeal. Amounts are subject to
change.
(c) (Phase III) State and County Taxes for the year 1996 are open to pay
in the amount of $92,678.31 (Due October 15,1996) under Map
Reference No. 17-45-LL-68-9; City of Atlanta Taxes for the year 1996
are open to pay in the amount of $239,063.33 (Due October 15,1996)
under Map Reference No.17-45-LL-68-9.
NOTE: 1995 and 1996 taxes are under appeal. Amounts are subject to
change.
2
<PAGE> 85
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COMMITMENT NO. PART I, SCHEDULE B (CONTINUED)
2-08478
- --------------------------------------------------------------------------------
(d) (Phase IV Air Rights) State and County Taxes for the year 1996 are
open to pay in the amount of $3,611.63 (Due October 15, 1996) under
Map Reference No. 17-45-LL-71-3; City of Atlanta Taxes for the year
1996 are to pay in the amount of $9,282.35 (Due October 15,1996)
under Map Reference No. 17-45-LL-71-3.
NOTE: 1995 and 1996 taxes are under appeal. Amounts are subject to
change.
(e) (Parking Deck) State and County Taxes for the year 1996 are open to
pay in the amount of $79,438.61 (Due August 15, 1996) under Map
Reference No.17-45-LL-55-6; City of Atlanta Taxes for the year 1996
are open to pay in the amount of $204,167.26 (Due August 15,1996)
under Map Reference No. 17-6-LL-55-6.
NOTE: 1995 and 1996 taxes are under appeal. Amounts are subject to
change.
(f) (Driveway etal) State and County Taxes for the year 1996 are open to
pay in the amount of $1,763.82 (Due October 15, 1996) under Map
Reference No. 17-45-LL-69-7; City of Atlanta Taxes in the amount of
$5,980.54 for the year 1996 are open to pay (Due August 15, 1996)
under Map Reference No. 17-45-LL-69-7.
NOTE: 1995 and 1996 taxes are under appeal. Amounts are subject to
change. All prior years' taxes marked paid.
4. Payment, Cancellation and Satisfaction of record of the following:
(a) Deed to Secure Debt and Security Agreement from R-H Building
Partners, Ltd. to The First National Bank of Atlanta, dated July 15,
1981, recorded in Deed Book 7903, Page 406, Records of Fulton
County, Georgia; as assigned by that Transfer and Assignment from
The First National Bank of Atlanta to The Mutual Life Insurance
Company of New York, dated September 20, 1982, recorded in Deed Book
8241, Page 97, aforesaid Records; as modified by that certain First
Modification Agreement dated July 18,1985, recorded in Deed Book
9618, Page 24, aforesaid Records; as further modified by that
certain Second Modification Agreement, dated July 18, 1985, recorded
in Deed Book 10290, Page 433, aforesaid Records; as further modified
by that certain Third Modification Agreement and Partial Release of
Mortgage by and between The Mutual Life Insurance Company of New
York, a New York corporation, R-H Building Partners,
3
<PAGE> 86
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COMMITMENT NO. PART I, SCHEDULE B (CONTINUED)
2-08478
- --------------------------------------------------------------------------------
Ltd., a Georgia limited partnership and The Mutual Life Insurance
Company of New York, a New York corporation, dated December 22,
1986, filed for record January 7, 1987 at 10:57 a.m., recorded in
Deed Book 10561, Page 378, aforesaid Records. (Affecting Phase I)
(b) Assignment of Leases and Rents from R-H Building Partners, Ltd. to
The First National Bank of Atlanta, dated July 15, 1981, recorded in
Deed Book 7903, Page 433, aforesaid Records; as assigned by that
Transfer and Assignment from The First National Bank of Atlanta to
The Mutual Life Insurance Company of New York, dated September 20,
1982, recorded in deed Book 8241, Page 98, aforesaid Records; as
amended by that certain First Modification Agreement dated July
18, 1985, recorded in Deed Book 9618, Page 24, aforesaid Records; as
further amended by that certain Second Modification Agreement, dated
July 18, 1985, recorded in Deed Book 10290, Page 433, aforesaid
Records; as further modified by that certain Third Modification
Agreement and Partial Release of Mortgage by and between The Mutual
Life Insurance Company of New York, a New York corporation, R-H
Building Partners, Ltd., a Georgia limited partnership and The
Mutual Life Insurance Company of New York, a New York corporation,
dated December 22, 1986, filed for record January 7, 1987 at 10:57
a.m., recorded in Deed Book 10561, Page 378, aforesaid Records.
(Affecting Phase I)
(c) U.C.C. Financing Statement No. 561471 showing R-H Building Partners,
Ltd. as Debtor and The First National Bank of Atlanta as Secured
Party, entered of record July 21, 1981, aforesaid Records; as
assigned by that certain Assignment from The First National Bank of
Atlanta to The Mutual Life Insurance Company of New York, entered of
record September 21, 1982, aforesaid Records; as amended by that
certain Amendment entered of record July 19, 1986, aforesaid
Records; as continued by that certain Continuation entered of record
July 3, 1986, aforesaid Records; as further amended by that certain
Amendment entered of record August 25, 1986, aforesaid Records; as
continued by that certain Continuation entered of record July 6,
1990, aforesaid Records; as further continued by that certain
Continuation entered of record April 3, 1991, aforesaid Records.
(Affecting Phase I)
(d) Deed to Secure Debt and Security Agreement from R-H Associates
Bldg. II Corp. to David S. Cook, Floyd L. Smith, Allan H. Glidden,
H. Donald Harvey, Jr., James V. Tomai, Jr., Donald S. Myers, Rodger
P. Nordblom, John B. Rogers, Henry S. Romaine and Norcross Teel,
Jr., and their successors in office, as Trustees of MONY Mortgage
Investors, a Massachusetts business trust (now known as
4
<PAGE> 87
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COMMITMENT NO. PART I, SCHEDULE B (CONTINUED)
2-08478
- --------------------------------------------------------------------------------
MONY Real Estate Investors; see fact affidavit in Deed Book 10290,
Page 288, aforesaid Records) dated July 18, 1985, recorded in Deed
Book 9618, Page 304, aforesaid Records; as amended by that certain
First Amendment to Deed to Secure Debt and Security Agreement, dated
as of July 18, 1985, recorded in Deed Book 10290, Page 447,
aforesaid Records; as further amended by that certain Second
Modification Agreement and Partial Release of Mortgage, dated as of
December 22, 1986, recorded in Deed Book 10561, Page 331, aforesaid
Records; as assigned by that certain Assignment of Deed to Secure
Debt and Security Agreement from MONY Real Estate Investors to The
Mutual Life Insurance Company of New York, dated July 28, 1987,
recorded in Deed Book 10973, Page 191, aforesaid Records. (Affecting
Phase II)
(e) Assignment of Leases and Rents from R-H Associates Bldg. II Corp. to
David S. Cook, Floyd L. Smith, Allan H. Glidden, H. Donald Harvey,
Jr., James V. Tomai, Jr., Donald S. Myers, Rodger P. Nordblom, John
B. Rogers, Henry S. Romaine and Norcross Teel, Jr., and their
successors in office, as Trustees of MONY Mortgage Investors, dated
July 18, 1985, recorded in Deed Book 9618, Page 332, aforesaid
Records; as amended by that certain First Amendment to Deed to
Secure Debt and Security Agreement, dated as of July 18,1985,
recorded in Deed Book 10290, Page 443, aforesaid Records; as further
amended by that certain Second Modification Agreement and Partial
Release of Mortgage, dated as of December 22, 1986, recorded in Deed
Book 10561, Page 331, aforesaid Records; as assigned by that certain
Assignment of Deed to Secure Debt and Security Agreement from MONY
Real Estate Investors to The Mutual Life Insurance Company of New
York, dated July 28, 1987, recorded in Deed Book 10973, Page 192,
aforesaid Records. (Affecting Phase II)
(f) U.C.C. Financing Statement No. 763302 showing Two Financial Center
Associates as Debtor and UT Leasing Services, Inc. as Secured Party,
entered of record August 28, 1991, aforesaid Records.
5. The Company must be furnished proof in affidavit form as to who is in
possession of the subject property and under what claim. Upon receipt of
such proof, Item 2(a) of Part II below will be deleted or amended in
accordance with the facts revealed thereby.
6. The Company must be furnished a current accurate survey and surveyor's
inspection report on the subject property. Upon receipt of same, Items
2(b) and 2(c) of Part II below will be deleted or amended in accordance
with facts shown thereby.
5
<PAGE> 88
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COMMITMENT NO. PART I, SCHEDULE B (CONTINUED)
2-08478
- --------------------------------------------------------------------------------
7. The Company must be furnished satisfactory proof in affidavit form that
improvements and/or repairs or alterations to the property are completed;
that contractor, sub-contractors, laborers and materialmen are all paid,
and have released of record all liens or notice of intent to perfect a
lien for labor and material; or receipt of proof satisfactory to the
Company that no improvements or repairs were made on the property within
95 days preceding the filing for record of the instruments required at
Item 1 above. Upon receipt of this proof, Item 2(d) of Part II below will
be deleted or amended in accordance with the facts shown thereby.
8. Proof, satisfactory to the Company, that all taxes or special assessments,
including water bills, which are not shown as existing liens on the public
records are paid in full at the time of closing. Upon receipt of such
proof, Item 2(e) of the standard exceptions in Schedule B, Part II below
will be deleted or amended in accordance with the facts shown thereby.
9. Unless this transaction involves only real estate containing one to four
residential units as shown on a current plat of survey, the Company must
be furnished with
a.) satisfactory proof that the land in this transaction is not
"commercial real estate" as defined in sec. 44-14-601 O.C.G.A., or
b.) satisfactory proof in affidavit form from both the Seller and from
the Buyer (or Borrower if there is no sale involved) i.) that no
Broker's services have been engaged with regard to the management,
sale, purchase, lease, option or other conveyance of any interest in
the subject commercial real estate and ii.) that no notice(s) of
lien for any such services has been received. In the event that said
affidavit(s) contain any qualification with respect to any such
services, proof of payment in full for all such services, together
with a lien waiver or estoppel letter from such identified Broker(s)
must be obtained.
NOTE: Where the possibility of a right to file a Broker's Lien(s) is
determined and no lien waiver(s) nor Estoppel Letter(s) is
furnished to the Company, an exception as follows will be
taken in the final policy:
"Any Broker's lien, or right to a Broker's lien, imposed by
law."
10. Proof satisfactory to the Company of the acceptance by other title
insurance companies designated by the Proposed Insured of reinsurance
required.
6
<PAGE> 89
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COMMITMENT NO. PART II, SCHEDULE B
2-08478
- --------------------------------------------------------------------------------
II. Schedule B of the policy or policies to be issued will contain exceptions
to the following matters unless the same are disposed of to the
satisfaction of the Company:
1. Defects, liens, encumbrances, adverse claims, or other matters, if
any, created, first appearing in the public records or attaching
subsequent to the effective date hereof but prior to the date the
proposed Insured acquires for value of record the estate or interest
or mortgage thereon covered by this Commitment.
2. Standard Exceptions:
(a) Rights or claims of parties in possession not shown by the
public records.
(b) Easements, or claims of easements, not shown by the public
records.
(c) Encroachments, overlaps, boundary line disputes, or other
matters which would be disclosed by an accurate survey or
inspector of the premises.
(d) Any lien, or right to a lien, for services, labor, or material
heretofore or hereafter furnished, imposed by law and not
shown by the public records. (e) Taxes or special assessments
which are not shown as existing liens by the public records.
(e) Taxes or special assessments which are not shown as existing
liens by the public records.
3. Special Exceptions:
(a) All taxes subsequent to the year 1996 not Yet due or payable
and any additional taxes resulting from reassessment of
subject property.
(b) This policy of title insurance affords assurance as to the
location of the boundary lines of subject property, but does
not insure the engineering calculations in computing the exact
amount of acreage contained therein.
(c) Rights of tenants in possession.
(d) Attention is directed to the fact that captioned property
adjoins George Highway No. 400 which is a limited access way
with rights of access limited to those points designated by
the Department of Transportation of Georgia.
(e) All matters disclosed by the survey referred to in Exhibit "A"
hereto, dated December 20, 1993, last revised ______________ ,
1996.
(f) Indenture from J. W. Walters to Stratford Arms Apartments,
Inc., dated October 29, 1958, recorded in Deed Book 3389, Page
525, aforesaid Records; located as shown on that certain
survey referred to in Exhibit "A" attached hereto.
(g) Sewer Easement from Beverly M. DuBose to Julian C. Jett and
Julia G. Jett, dated June 20, 1951, recorded in Deed Book
2661, Page 43, aforesaid Records; located as shown on that
certain survey referred to in Exhibit "A" attached hereto.
7
<PAGE> 90
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COMMITMENT NO. PART II, SCHEDULE B (CONTINUED)
2-08478
- --------------------------------------------------------------------------------
(h) General Utility Easement from B. M. DuBose to Georgia Power Company,
dated December 27, 1949, recorded in Deed Book 2498, page 464,
aforesaid Records; located as shown on that certain survey referred
to in Exhibit "A" attached hereto.
(i) Easement from Atlanta Financial Center Associates to Georgia Power
Company, dated January 20, 1986, recorded in Deed Book 9948, Page
54, aforesaid Records; located as shown on that certain survey
referred to in Exhibit "A" attached hereto.
(j) Easement from Atlanta Financial Center Associates to Georgia Power
Company, dated February 1, 1991, filed for record February 1, 1991
at 12:37 p.m., recorded in Deed Book 14030, Page 167, aforesaid
Records; located as shown on that certain survey referred to in
Exhibit "A" attached hereto.
(k) Parking Deck and Easement Agreement by and among Michael C. Carlos,
George C. Carlos, Andrew C. Carlos, and R-H Building Partners, Ltd.,
dated July 15, 1981, recorded in Deed Book 7903, Page 165, aforesaid
Records: as amended by that certain Amendment of Parking Deck and
Easement Agreement, dated July 15, 1981, recorded in Deed Book 7903,
Page 385, aforesaid Records (said Amendment having been terminated
by Agreement dated September 20, 1982, recorded in Deed Book 8255,
Page 475, aforesaid Records); as further amended by Second Amendment
to Parking Deck and Easement Agreement, dated July 18, 1985,
recorded in Deed Book 9618, Page 37, aforesaid Records; as further
amended by that certain Third Amendment to Parking Deck and Easement
Agreement, dated as of July 18, 1985, recorded in Deed Book 10290,
Page 389, aforesaid Records; as further amended by that certain
Declaration of Release dated December 22, 1986, recorded in Deed
Book 10561, Page 358, aforesaid Records; as further amended by that
certain Fourth Amendment to Parking Deck and Easement Agreement
dated as of August 11, 1986, recorded in Deed Book 11790, Page 76,
aforesaid Records.
(l) Reciprocal Easement Agreement by and among Robinson-Humphrey
Properties, Inc., R-H Associates Bldg. II Corp. and Atlanta
Financial Center Associates, dated July 18, 1985, recorded in Deed
Book 9618, Page 68, aforesaid Records; as amended by that certain
First Amendment to Reciprocal Easement Agreement, dated as of July
18, 1985, recorded in Deed Book 10290, Page 411, aforesaid Records;
as further amended by that certain Declaration of Release, dated
December 22, 1986, recorded in Deed Book 10561, Page 358, aforesaid
Records; as further amended by that certain Second Amendment to
Reciprocal Easement Agreement, dated as of August 11, 1988, recorded
in Deed Book 11790, Page 69, aforesaid Records.
8
<PAGE> 91
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COMMITMENT NO. PART II, SCHEDULE B (CONTINUED)
2-08478
- --------------------------------------------------------------------------------
(m) Agreement by and among R-H Associates Bldg II Corp., Atlanta
Financial Center Associates, Robinson-Humphrey Properties, Inc. and
the Department of Transportation of the State of Georgia, dated July
18, 1985, recorded in Deed Book 9618, Page 145, aforesaid Records;
as amended by that certain Amendment to Agreement dated as of July
18, 1985, recorded in Deed Book 10290, Page 289, aforesaid Records;
the interest of R-H Associates Bldg. II Corp. thereunder having been
assigned to Two Atlanta Financial Center Associates by that certain
Assignment and Assumption (DOT Agreements), dated July 28, 1987,
recorded in Deed Book 10973, Page 179, aforesaid Records.
(n) Easement Agreement by and between R-H Associates Bldg. II Corp. and
the Department of Transportation of the State of Georgia, dated July
18, 1985, recorded in Deed Book 9618, Page 301, aforesaid Records;
as amended by that certain First Amendment to Easement Agreement,
dated as of July 18, 1985, recorded in Deed Book 10290, Page 383,
aforesaid Records.
(o) Agreement Regarding Georgia 400 Extension, by and among R-H
Associates Bldg. II Corp., Robinson-Humphrey Properties, Inc.,
Atlanta Financial Center Associates, MONY Mortgage Investors, and
The Mutual Life Insurance Company of New York, dated July 18, 1985,
recorded in Deed Book 9623, Page 75, aforesaid Records; as amended
by that certain First Amendment to Agreement Regarding Georgia
Highway 400 Extension, dated as of July 18, 1985, recorded in Deed
Book 10290, Page 419, aforesaid Records; the interest of R-H
Associates Bldg. II Corp. thereunder having been assigned to Two
Atlanta Financial Center Associates by that certain Assignment and
Assumption (DOT Agreements) dated July 28, 1987, recorded in Deed
Book 10973, Page 179, aforesaid Records.
(p) Encroachment Easement Agreement by and between Robinson-Humphrey
Properties, Inc., a Georgia corporation and Two Atlanta Financial
Center Associates, a Georgia general partnership, dated December 24,
1987, filed for record January 13, 1988 at 11:50 a.m., recorded in
Deed Book 11269, Page 265, aforesaid Records.
(q) Easements contained in and limitations, restrictions and other
matters pertaining to the use and enjoyment of the easements
reserved in that certain Limited Warranty Deed from R-H Building
Partners, Ltd., a Georgia limited partnership, as to an undivided
50% interest and The Mutual Life Insurance Company of New York, a
New York corporation, as to an undivided 50% interest, together
doing business as Atlanta Financial Center Associates, a Georgia
Joint Venture to The
9
<PAGE> 92
- --------------------------------------------------------------------------------
COMMITMENT NO. PART II, SCHEDULE B (CONTINUED)
2-08478
- --------------------------------------------------------------------------------
Department of Transportation of the State of Georgia, dated December
22, 1986, filed for record December 23, 1986 at 1:41 p.m., recorded
in Deed Book 10513, Page 108, aforesaid Records.
(r) Easements contained in and limitations, restrictions and other
matters pertaining to the use and enjoyment of the easements
reserved in that certain Limited Warranty Deed from R-H Associates
Bldg. II Corp. to the Department of Transportation, dated December
22, 1986, recorded in Deed Book 10513, Page 127, aforesaid Records.
(s) Easements contained in and limitations, restrictions and other
matters pertaining to the use and enjoyment of the easements
reserved in that certain Limited Warranty Deed from Atlanta
Financial Center Associates, a Georgia joint venture composed of The
Mutual Life Insurance Company of New York and R-H Building Partners,
Ltd., to the Department of Transportation of the State of Georgia,
dated April 4, 1989, filed for record July 19, 1989 at 9:30 a.m.,
recorded in Deed Book 12667, Page 115, aforesaid Records.
(t) Easements contained in and limitations, restrictions and other
matters pertaining to the use and enjoyment of the easements
reserved in that certain Limited Warranty Deed from Two Atlanta
Financial Center Associates, a Georgia joint venture composed of The
Mutual Life Insurance Company of New York and R-H Associates Bldg.
II Corp., to the Department of Transportation of the State of
Georgia, dated April 4, 1989, filed for record July 19, 1989 at 9:30
a.m., recorded in Deed Book 12667, Page 141, aforesaid Records.
(u) Easements contained in and limitations, restrictions and other
matters pertaining to the use and enjoyment of the easements
reserved in that certain limited Warranty Deed from R-H Associates
Bldg. III Corp., a Georgia corporation to the Department of
Transportation of the State of Georgia, dated April 4, 1989, filed
for record July 19, 1989 at 9:30 a.m., recorded in Deed Book 12667,
Page 222, aforesaid Records.
(v) Easement contained in and limitations, restrictions and other
matters pertaining to the use and enjoyment of the easements
reserved in that certain Limited Warranty Deed from
Robinson-Humphrey Properties, Inc. to the Department of
Transportation of the State of Georgia, dated July 18, 1985,
recorded in Deed Book 9618, Page 288, aforesaid Records; as
corrected by that certain Corrective Warranty Deed recorded in Deed
Book 10290, Page 372, aforesaid Records.
10
<PAGE> 93
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COMMITMENT NO. PART II, SCHEDULE B (CONTINUED)
2-08478
- --------------------------------------------------------------------------------
(w) Access Easement Agreement from Robinson-Humphrey Properties, Inc.,
to the Department of Transportation of the State of Georgia, dated
April 4, 1989, recorded in Deed Book 12667, Page 100, aforesaid
Records.
(x) Easements contained in and limitations, restrictions and other
matters pertaining to the use and enjoyment of the easements
reserved in that certain Limited Warranty Deed from
Robinson-Humphrey Properties, Inc., a Georgia corporation to the
Department of Transportation of the State of Georgia, dated April
4, 1989, filed for record July 19, 1989 at 9:30 a.m., recorded in
Deed Book 12667, Page 163, aforesaid Records.
(y) Easements contained in and limitations, restrictions and other
matters pertaining to the use and enjoyment of the easements
reserved in that certain Limited Warranty Deed from Robinson
Humphrey Properties, Inc., a Georgia corporation to the Department
of Transportation of the State of Georgia, dated April 4, 1989,
filed for record July 19, 1989 at 9:30 a.m., recorded in Deed Book
12667, Page 192, aforesaid Records.
(z) Agreement Regarding Parking and Rezoning by and between R-H
Associates Bldg. III Corp., Robinson-Humphrey Properties, Inc. and
The First National Bank of Chicago, dated February 28, 1989, filed
for record March 7, 1989 at 9:24 a.m., recorded in Deed Book 12323,
Page 194, aforesaid Records.
(aa) Any security interest created at closing.
11
<PAGE> 94
EXHIBIT "A"
PHASE I
ALL THAT TRACT OR PARCEL OF LAND lying and being in Land Lots 45 and 62, 17th
District, City of Atlanta, Fulton County, Georgia and being more particularly
described as follows:
TO FIND THE TRUE POINT OF BEGINNING, begin at the point formed by the
intersection of the northernmost right-of-way line of Highland Drive (a 50-foot
right-of-way) with the easternmost right-of-way line of Peachtree Road (a
variable right-of-way being 80 feet at this point) and proceed thence in a
northerly direction along the aforesaid easternmost right-of-way line, following
the curvature thereof, a distance of 365.1 feet to an iron pin which is THE TRUE
POINT OF BEGINNING.
FROM THE TRUE POINT OF BEGINNING THUS ESTABLISHED proceed thence along the
aforesaid easternmost right-of-way line north 13(degree)43'08" east a distance
of 37.39 feet to a point on the aforesaid easternmost right-of-way line; proceed
thence along the aforesaid easternmost right-of-way line along an arc of a curve
to the right, an arc distance of 179.12 feet to a point, said arc being
subtended by a chord 178.99 feet in length and bearing north 20(degree)26'46"
east; proceed thence along the aforesaid easternmost right-of-way line north
26(degree)16'11" east a distance of 48.21 feet to a point on the aforesaid
easternmost right-of-way line; proceed thence along the aforesaid easternmost
right-of-way line north 28(degree)17'14" east 48.18 feet to a point on the
aforesaid easternmost right-of-way line; proceed thence along the aforesaid
eaternmost right-of-way line north 30(degree)11'09" east a distance of 48.15
feet to a point on the aforesaid easternmost right-of-way line; proceed thence
north 32(degree)20'44" east a distance of 57.74 feet to a point on the aforesaid
eaternmost right-of-way line; proceed thence along the aforesaid easternmost
right-of-way line north 55(degree)03'02" east a distance of 8.44 feet to a point
on the aforesaid easternmost right-of-way line; proceed thence along an arc of a
curve to the left, departing from the aforesaid easternmost right-of-way line,
an arc distance of 178.88 feet, said arc being subtended by a chord 178.87 feet
in length and bearing south 32(degree)44'02" east; proceed thence along an arc
of a curve to the left, an arc distance of 23.09 feet to a point, said arc being
subtended by a chord 23.09 feet in length and bearing south 31(degree)15'01"
east; proceed thence south 31(degree)11'25" west, a distance of 26.49 feet to a
point; proceed thence south 81(degree)18'35" east, a distance of 35.04 feet to a
point; proceed thence south 14(degree)08'05" east, a distance of 140.56 feet to
a point; proceed thence south 81(degree)21'18" east, a distance of 0.36 feet to
a point; proceed thence north 31(degree)11'25" east, a distance of 366.62 feet
to a point; proceed thence south 74 (degree)31'03" east, a distance of 10.04
feet to a point; proceed thence north 13 (degree)51'45" west, a distance of
261.95 feet to a point; proceed thence north 48(degree)03'44" west, a distance
of 95.71 feet to a point located on the aforesaid easternmost right-of-way line
of Peachtree Road; proceed thence along the aforesaid easternmost right-of-way
line north 39(degree)15'08" east, a distance of 142.28 feet to a point; proceed
thence south 13(degree)51'45" east, a distance of 1,104.35 feet to a point
located on the Land Lot line common to Land Lots 45 and 46 of the 17th District
of Fulton County, Georgia; proceed thence along the said common Land Lot line
north 89 (degree)37'06" west, a distance of 363.25 feet; proceed thence,
departing from said common Land Lot line, north 12(degree)49'09" west, a
distance of 218.41 feet to a point; proceed thence north 79(degree)10'45"
Page 1 of 13
<PAGE> 95
EXHIBIT "A"
west, a distance of 356.72 feet to a point located on the aforesaid easternmost
right-of-way line of Peachtree Road, said point being the TRUE POINT OF
BEGINNING, said tract or parcel of land being more particularly shown as "Phase
I" on that Survey by Mallett & Associates bearing the seal and certification of
Michael F. Lawler, Georgia Registered Land Surveyor No. 1946, prepared for The
Mutual Life Insurance Company of New York and Chicago Title Insurance Company,
dated December 20, 1993, last revised December 23, 1993, and being file no.
93153, which Survey is incorporated herein by this reference.
LESS AND EXCEPT that portion of the above property conveyed by the following:
(1) Limited Warranty Deed from R-H Building Partners, Ltd., a Georgia limited
partnership, as to an undivided 50% interest and The Mutual Life Insurance
Company of New York, a New York corporation, as to an undivided 50% interest,
together doing business as Atlanta Financial Center Associates, a Georgia Joint
Venture to The Department of Transportation of the State of Georgia, dated
December 22, 1986, filed for record December 23, 1986 at 1:41 p.m., recorded in
Deed Book 10513, Page 108, aforesaid Records.
(1) Limited Warranty Deed from Atlanta Financial Center Associates, a Georgia
joint venture composed of The Mutual Life Insurance Company of New York and R-H
Building Partners, Ltd., to the Department of Transportation of the State of
Georgia, dated April 4, 1989, filed for record July 19, 1989 at 9:30 a.m.,
recorded in Deed Book 12667, Page 115, aforesaid Records.
TOGETHER WITH all easements appurtenant to the above property created by the
following:
(a) Parking Deck and Easement Agreement by and among Michael C. Carlos, George
C Carlos, Andrew C. Carlos, and R-H Building Partners, Ltd., dated July 15,1981,
recorded in Deed Book 7903, Page 165, aforesaid Records; as amended by that
certain Amendment of Parking Deck and Easement Agreement, dated July 15, 1981,
recorded in Deed Book 7903, Page 385, aforesaid Records (said Amendment having
been terminated by Agreement dated September 20, 1982, recorded in Deed Book
8255, Page 475, aforesaid Records); as further amended by Second Amendment to
Parking Deck and Easement Agreement, dated July 18, 1985, recorded in Deed Book
9618, Page 37, aforesaid Records; as further amended by that certain Third
Amendment to Parking Deck and Easement Agreement, dated as of July 18, 1985,
recorded in Deed Book 10290, Page 389, aforesaid Records; as further amended by
that certain Declaration of Release dated December 22, 1986, recorded in Deed
Book 10561, Page 358, aforesaid Records; as further amended by that certain
Fourth Amendment to Parking Deck and Easement Agreement, dated as of August 11,
1986, recorded in Deed Book 11790, Page 76, aforesaid Records.
Page 2 of 13
<PAGE> 96
EXHIBIT "A"
(b) Reciprocal Easement Agreement by and among Robinson-Humphrey Properties,
Inc., R-H Associates Bldg. II Corp. and Atlanta Financial Center Associates,
dated July 18, 1985, recorded in Deed Book 9618, Page 68, aforesaid Records; as
amended by that certain First Amendment to Reciprocal Easement Agreement, dated
as of July 18, 1985, recorded in Deed Book 10290, Page 411, aforesaid Records;
as further amended by that certain Declaration of Release, dated December 22,
1986, recorded in Deed Book 10561, Page 358, aforesaid Records; as further
amended by that certain Second Amendment to Reciprocal Easement Agreement, dated
as of August 11, 1988, recorded in Deed Book 11790, Page 69, aforesaid Records.
(c) Agreement by and among R-H Associates Bldg II Corp., Atlanta Financial
Center Associates, Robinson-Humphrey Properties, Inc. and the Department of
Transportation of the State of Georgia, dated July 18, 1985, recorded in Deed
Book 9618, Page 145, aforesaid Records; as amended by that certain Amendment to
Agreement dated as of July 18, 1985, recorded in Deed Book 10290, page 289,
aforesaid Records; the interest of R-H Associates Bldg. II Corp. thereunder
having been assigned to Two Atlanta Financial Center Associates by that certain
Assignment and Assumption (DOT Agreements), dated July 28, 1987, recorded in
Deed Book 10973, Page 179, aforesaid Records.
(d) Agreement Regarding Georgia 400 Extension, by and among R-H Associates
Bldg. II Corp., Robinson-Humphrey Properties, Inc., Atlanta Financial Center
Associates, MONY Mortgage Investors, and The Mutual Life insurance Company of
New York, dated July 18, 1985, recorded in Deed Book 9623, Page 75, aforesaid
Records; as amended by that certain First Amendment to Agreement Regarding
Georgia Highway 400 Extension, dated as of July 18, 1985, recorded in Deed Book
10290, Page 419, aforesaid Records; the interest of R-H Associates Bldg. II
Corp. thereunder having been assigned to Two Atlanta Financial Center Associates
by that certain Assignment and Assumption (DOT Agreements) dated July 28, 1987,
recorded in Deed Book 10973, Page 179, aforesaid Records.
(e) Limited Warranty Deed from R-H Building Partners, Ltd., a Georgia limited
partnership, as to an undivided 50% interest and The Mutual Life Insurance
Company of New York, a New York corporation, as to an undivided 50% interest,
together doing business as Atlanta Financial Center Associates, a Georgia Joint
Venture to The Department of Transportation of the State of Georgia, dated
December 22, 1986, filed for record December 23, 1986 at 1:41 p.m., recorded in
Deed Book 10513, Page 108, aforesaid Records.
(f) Limited Warranty Deed from Atlanta Financial Center Associates, a Georgia
joint venture composed of The Mutual Life Insurance Company of New York and R-H
Building Partners, Ltd., to the Department of Transportation of the State of
Georgia, dated April 4, 1989, filed for record July 19, 1989 at 9:30 a.m.,
recorded in Deed Book 12667, Page 115, aforesaid Records.
Page 3 of 13
<PAGE> 97
EXHIBIT "A"
PHASE II
ALL THAT TRACT OR PARCEL OF LAND lying and being in Land Lot 45, 17th District,
City of Atlanta, Fulton County, Georgia and being more particularly described as
follows:
TO FIND THE TRUE POINT OF BEGINNING begin at a point formed by the intersection
of the easternmost right-of-way line of Peachtree Road (a variable right-of-way
being 80 feet at this point) with the northernmost right-of-way line of Highland
Drive (a 50-foot right-of-way) and proceed thence in a northeasterly direction
along the aforesaid easternmost right-of-way line of Peachtree Road a distance
of 365.1 feet to a point; proceed thence in a northeasterly direction along the
aforesaid easternmost right-of-way line north 13(degree)43'08" east a distance
of 37.39 feet to a point; proceed thence along the aforesaid easternmost
right-of-way line, following the curvature thereof to the right, an arc distance
of 179.12 feet to a point, said arc being subtended by a chord 178.99 feet in
length and bearing north 20(degree)26'46" east; proceed thence in a
northeasterly direction along the aforesaid easternmost right-of-way line north
26(degree)16'11" east a distance of 48.21 feet to a point; proceed thence in a
northeasterly direction along the aforesaid easternmost right-of-way line north
28(degree)17'14" east a distance of 48.18 feet to a point; proceed thence in a
northeasterly direction along the aforesaid easternmost right-of-way line north
30(degree)11'09" east a distance of 48.15 feet to a point; proceed thence in a
northeasterly direction along the aforesaid easternmost right-of-way line north
32(degree)20'44" east a distance of 57.74 feet to a point; proceed thence in a
northeasterly direction along the aforesaid easternmost right-of-way line north
55(degree)03'02" east a distance of 8.44 feet to a point, said point being THE
TRUE POINT OF BEGINNING.
FROM THE TRUE POINT OF BEGINNING THUS ESTABLISHED proceed thence along the
aforesaid easternmost right-of-way line north 55(degree)32'07" east a distance
of 18.02 feet to a point; proceed thence in a southeasterly direction along the
aforesaid easterly right-of-way line, following the curvature thereof to the
right, an arc distance of 7.77 feet to a point, said arc being subtended by a
chord 7.77 feet in length and bearing south 31(degree)52'33" east; thence leave
said right-of-way line and proceed in a southeasterly direction along the arc of
a curve to the left, an arc distance of 171.77 feet to a point, said arc being
subtended by a chord 171.77 feet in length and bearing south 32(degree)46'15"
east; proceed thence in a southeasterly direction along the arc of a curve to
the left, an arc distance of 14.05 feet to a point, said arc being subtended by
a chord 14.05 feet in length and bearing south 31(degree)08'45" east; proceed
thence north 31(degree)11'25" east a distance of 193.49 feet to a point;
proceed thence north 31(degree)11'25" east a distance of 3.77 feet to a point;
proceed thence south 74(degree)31'03" east a distance of 62.79 feet to a point;
proceed thence north 76(degree)11'25" east a distance of 74.14 feet to a point;
proceed thence south 13(degree)51'45" east a distance of 41.61 feet; proceed
thence north 74(degree)31'03" west a distance of 10.04 feet to a point; proceed
thence south 31(degree)11'25" west a distance of 366.62 feet to a point; proceed
thence north 81(degree)21'18" west a distance of 0.36 feet to a point; proceed
thence north 14(degree)08'05" west a distance of 140.56 feet to a point; proceed
thence north 81(degree)18'35" west a distance of 35.04 feet to a point; proceed
thence north 31(degree)11'25" east a distance of 26.49 feet to a point; proceed
thence along the arc of a curve to the right an
Pago 4 of 13
<PAGE> 98
EXHIBIT "A"
arc distance of 23.09 feet to a point, said arc being subtended by a chord 23.09
feet in length and bearing north 31(degree)15'01" west; proceed thence along
an arc of a curve to the right an arc distance of 178.88 feet to a point, said
arc being subtended by a chord 178.87 feet in length and bearing north
32(degree)44'02" west, said point being THE TRUE POINT OF BEGINNING, said
tract or parcel of land being more particularly shown as "Phase II" on that
Survey by Mallett & Associates, bearing the seal and certification of Michael F.
Lawler, Georgia Registered Land Surveyor No. 1946, prepared for The Mutual Life
Insurance Company of New York and Chicago Title Insurance Company dated December
20, 1993, last revised December 23, 1993, and being file no. 93153, which survey
is incorporated herein by this reference.
LESS AND EXCEPT that portion of the above property conveyed by the following:
(1) Limited Warranty Deed from R-H Associates Bldg. II Corp. to the Department
of Transportation, dated December 22, 1986, recorded in Deed Book 10513, Page
127, aforesaid Records.
(2) Limited Warranty Deed from Two Atlanta Financial Center Associates, a
Georgia joint venture composed of The Mutual Life Insurance Company of New York
and R-H Associates Bldg. II Corp., to the Department of Transportation of the
State of Georgia, dated April 4, 1989, filed for record July 19, 1989 at 9:30
a.m., recorded in Deed Book 12667, Page 141, aforesaid Records.
TOGETHER WITH all easements appurtenant to the above property created by the
following:
(a) Parking Deck and Easement Agreement by and among Michael C. Carlos, George
C. Carlos, Andrew C. Carlos, and R-H Building Partners, Ltd., dated July 15,
1981, recorded in Deed Book 7903, Page 165, aforesaid Records; as amended by
that certain Amendment of Parking Deck and Easement Agreement, dated July 15,
1981, recorded in Deed Book 7903, Page 385, aforesaid records (said Amendment
having been terminated by Agreement dated September 20, 1982, recorded in Deed
Book 8255, Page 475, aforesaid Records); as further amended by Second Amendment
to Parking Deck and Easement Agreement, dated July 18, 1985, recorded in Deed
Book 9618, Page 37, aforesaid Records; as further amended by that certain Third
Amendment to Parking Deck and Easement Agreement, Dated as of July 18, 1985,
recorded in Deed Book 10290, Page 389, aforesaid Records; as further amended by
that certain Declaration of Release dated December 22, 1986, recorded in Deed
Book 10561, Page 358, aforesaid Records; as further amended by that certain
Fourth Amendment to Parking Deck and Easement Agreement, dated as of August 11,
1986, recorded in Deed Book 11790, Page 76, aforesaid Records.
(b) Reciprocal Easement Agreement by and among Robinson-Humphrey Properties,
Inc., R-H Associates Bldg. II Corp. and Atlanta Financial Center Associates,
dated July 18, 1985, recorded in Deed Book 9618, Page 68, aforesaid Records; as
amended by that
Page 5 of 13
<PAGE> 99
EXHIBIT "A"
certain First Amendment to Reciprocal Easement Agreement, dated as of July 18,
1985, recorded in Deed Book 10290, Page 411, aforesaid Records; as further
amended by that certain Declaration of Release, dated December 22. 1986,
recorded in Deed Book 10561, Page 358, aforesaid Records; as further amended by
that certain Second Amendment to Reciprocal Easement Agreement, dated as of
August 11, 1988, recorded in Deed Book 11790, Page 69, aforesaid Records.
(c) Agreement by and among R-H Associates Bldg. II Corp., Atlanta Financial
Center Associates, Robinson-Humphrey Properties, Inc. and the Department of
Transportation of the State of Georgia, dated July 18, 1985, recorded in Deed
Book 9618, Page 145, aforesaid Records; as amended by that certain Amendment to
Agreement dated as of July 18, 1985, recorded in Deed Book 10290, Page 289,
aforesaid Records; the interest of R-H Associates Bldg. II Corp. thereunder
having been assigned to Two Atlanta Financial Center Associates by that certain
Assignment and Assumption (DOT Agreements), dated July 28, 1987, recorded in
Deed Book 10973, Page 179, aforesaid Records.
(d) Agreement Regarding Georgia 400 Extension, by and among R-H Associates
Bldg.II Corp., Robinson-Humphrey Properties, Inc., Atlanta Financial Center
Associates, MONY Mortgage Investors, and The Mutual Life Insurance Company of
New York, dated July 18, 1985, recorded in Deed Book 9623, Page 75, aforesaid
Records; as amended by that certain First Amendment to Agreement Regarding
Georgia Highway 400 Extension, dated as of July 18, 1985, recorded in Deed Book
10290, Page 419, aforesaid Records; the interest of R-H Associates Bldg. II
Corp. thereunder having been assigned to Two Atlanta Financial Center Associates
by that certain Assignment and Assumption (DOT Agreements) dated July 28, 1987,
recorded in Deed Book 10973, Page 179, aforesaid Records.
(e) Limited Warranty Deed from Atlanta Financial Center Associates, a Georgia
joint venture composed of The Mutual Life Insurance Company of New York and R-H
Building Partners, Ltd., to the Department of Transportation of the State of
Georgia, dated April 4, 1989, filed for record July 19, 1989 at 9:30 a m.,
recorded in Deed Book 12667, Page 127, aforesaid Records.
(f) LIMITED WARRANTY DEED FROM Two Atlanta Financial Center Associates, a
Georgia joint venture composed of The Mutual Life Insurance Company of New York
and R-H Associates Bldg. II Corp., to the Department of Transportation of the
State of Georgia, dated April 4, 1989, filed for record July 19, 1989 at 9:30
a.m., recorded in Deed Book 12667, Page 141, aforesaid Records.
Page 6 of 13
<PAGE> 100
EXHIBIT "A"
PHASE III
All that tract or parcel of land lying and being in Land Lot 45, 17th District,
City of Atlanta, Fulton County, Georgia and being more particularly described as
follows:
TO FIND THE TRUE POINT OF BEGINNING begin at a point formed by the intersection
of the easternmost right-of-way line of Peachtree Road (a variable right-of-way
being 80 feet at this point) with the northernmost right-of-way line of Highland
Drive (a 50-foot right-of-way); proceed thence in a northeasterly direction
along the aforesaid easternmost right-of-way line a distance of 365.1 feet to a
point; proceed thence along the aforesaid easternmost right-of-way line north 13
(degree)43'08" east a distance of 37.39 feet to a point; proceed thence along
the aforesaid easternmost right-of-way line, following the curvature thereof to
the right, an arc distance of 179.12 feet to a point, said arc being subtended
by a chord 178.99 feet in length and bearing north 20(degree)26'46" east;
proceed thence in a northeasterly direction along the aforesaid easternmost
right-of-way line north 26(degree)16'11" east a distance of 48.21 feet to a
point; proceed thence in a northeasterly direction along the aforesaid
easternmost right-of-way line north 28(degree)17'14" east a distance of 48.18
feet to a point; proceed thence in a northeasterly direction along the aforesaid
easternmost right-of-way line north 30(degree)11'09" east a distance of 48.15
feet to a point; proceed thence in a northeasterly direction along the aforesaid
easternmost right-of-way line north 32(degree)20'44" east a distance of 57.74
feet to a point; proceed thence in a northeasterly direction along the aforesaid
easternmost right-of-way line north 55(degree)03'02" east a distance of 8.44
feet to a point; proceed thence a northeasterly direction along the aforesaid
easternmost right-of-way line north 55(degree)32'07" east a distance of 18.02
feet to a point; proceed thence in a southeasterly direction along the aforesaid
easternmost right-of-way line, following the curvature thereof to the left, an
arc distance of 7.77 feet to a point, said arc being subtended by a chord 7.77
feet in length and bearing south 31(degree)52'33" east; proceed thence in a
northeasterly direction along the aforesaid easternmost right-of-way line north
35(degree)10'06" east a distance of 74.16 feet to a point; proceed thence in a
southeasterly direction along the aforesaid easternmost right-of way line south
58(degree)48'33" east a distance of 6.36 feet to a point; proceed thence in a
northeasterly direction along the aforesaid easternmost right-of-way line north
31(degree)11'26" east a distance of 10.05 feet to a point; proceed thence in a
southeasterly direction along the aforesaid easternmost right-of-way line south
58(degree)48'29" east a distance of 19 feet to a point; proceed thence in a
northeasterly direction along aforesaid easternmost right-of-way line north
31(degree)11'26" east a distance of 24.83 feet to a point; proceed thence in a
northwesterly direction along the aforesaid easternmost right-of-way line
58(degree) 48'44" west a distance of 19 feet to a point; proceed thence
northeasterly direction along the aforesaid easterly right-of-way line north
31(degree)11'23" a distance of 22.01 feet to a point; proceed thence in a
northeasterly direction along the aforesaid easterly right-of-way line north
40(degree)58'56" east a distance of 74.76 feet to a point, said point being THE
TRUE POINT OF BEGINNING.
Page 7 of 13
<PAGE> 101
FROM THE TRUE POINT OF BEGINNING THUS ESTABLISHED proceed proceed thence a
northeasterly direction along the aforesaid easternmost right-of-way line north
21(degree) 19'11" west a distance of 7.91 feet to a point; proceed thence in a
northeasterly direction along the aforesaid easternmost right-of-way line north
23(degree)34'11" east a distance of 38.38 feet to a point; proceed thence in a
northeasterly direction along the aforesaid easternmost right-of-way line north
40(degree)15'17" east a distance of 62.82 feet to a point; proceed thence in a
northeasterly direction along the aforesaid easternmost right-of-way line north
39(degree)15'08" east a distance of 49.32 feet to a point; thence leave said
right-of-way line and proceed thence south 48(degree)03'44" east a distance of
95.71 feet to a point; proceed thence south 13(degree)51'45" east a distance of
220.34 feet to a point; proceed thence south 76(degree)11'25" west a distance
of 74.14 feet to a point; proceed thence north 74(degree)31'03" west a distance
of 62.79 feet to a point; proceed thence south 31(degree)11'25" west a distance
of 3.77 feet to a point; proceed thence in a northwesterly direction along the
arc of a curve to the right, an arc distance of 131.99 feet to a point, said arc
being subtended by a chord 131.97 feet in length and bearing north 26(degree)
58'00" west to a point; proceed thence north 21(degree)19'11" west a distance of
38.37 feet to a point; said point being THE TRUE POINT OF BEGINNING,said tract
or parcel of land being more particularly shown as "Phase III" on that survey
prepared by Michael F. Lawler, Georgia Registered Land Surveyor no. 1946,
prepared for The Mutual life Insurance Company and Chicago Title Insurance
Company, dated December 20, 1993, last revised December 23, 1993, and being file
no. 93153, which survey is incorporated herein by this reference.
LESS AND EXCEPT that portion of the above property conveyed by that certain
Limited Warranty Deed from R-H Associates Bldg. III Corp., a Georgia corporation
to the Department of Transportation of the State of Georgia, dated April 4,
1989, filed for record July 19, 1989 at 9:30 a.m., recorded in Deed Book 12667,
Page 222, aforesaid Records.
TOGETHER WITH all easements appurtenant to the above property created by the
following:
1. Parking Deck and Easement Agreement among Michael G. Carlos, George
C. Carlos, Andrew C. Carlos, and R-H Building Partners, Ltd., dated July 15,
1981, recorded as Deed Book 7903, page 165, Fulton County Records, as amended by
Amendment of Parking Deck and Easement Agreement dated July 15, 1981, recorded
at Deed Book 7903, page 385, said Amendment having been terminated by Agreement
dated September 20, 1982, recorded at Deed Book 8255, page 475, as further
amended by Second Amendment to Parking Deck and Easement Agreement dated July
18, 1985, recorded at Deed Book 9618, page 37, and Third Amendment to Parking
Deck and Easement Agreement dated as of July 18, 1985, recorded in Deed Book
10290, page 389 and Declaration of Release dated December 22, 1986, recorded at
Deed Book 10561, page 358, aforesaid records, as further amended by Fourth
Amendment to Parking Deck and Easement Agreement dated as of August 11, 1988,
recorded in Deed Book 11790, page 76, aforesaid records.
Page 8 of 13
<PAGE> 102
2. Reciprocal Easement Agreement among Atlanta Financial Center
Associates, R-H Associates Bldg. II Corp. and Robinson-Humphrey Properties,
Inc., dated July 18, 1985, recorded in Deed Book 9618, page 68, aforesaid
records, as amended by First Amendment to Reciprocal Easement Agreement dated as
of July 18, 1985, recorded at Deed Book 10290, page 411, as further amended by
Declaration of Release dated December 22, 1986, recorded at Deed Book 10561,
page 358, aforesaid records, as amended by Second Amendment to Reciprocal
Easement Agreement dated as of August 11, 1988, recorded in Deed Book 11790,
page 69, aforesaid records.
3. Agreement among R-H Associates Bldg. II Corp., Atlanta Financial
Center Associates, Robinson-Humphrey Properties, Inc. and Department of
Transportation of State of Georgia, dated July 18, 1985, recorded at Deed Book
9618, page 145, aforesaid records, as amended by Agreement dated as of July 18,
1985, recorded at Deed Book 10290, page 289; the interest of R-H Associates
Bldg. II Corp. thereunder having been assigned to Two Atlanta Financial Center
Associates by that certain Assignment and Assumption (DOT Agreements), dated
July 28, 1987, recorded in Deed Book 10973, page 179, aforesaid records.
4. Encroachment Easement Agreement by and between Robinson-Humphrey
Properties, Inc and Two Atlanta Financial Center Associates dated December 24,
1987, recorded at Deed Book 11269, page 265, aforesaid records.
5. Agreement Regarding Georgia 400 Highway Extension among R-H
Associates Bldg. II Corp., Robinson-Humphrey Properties, Inc., Atlanta
Financial Center Associates, Trustees of Mony Mortgage Investors and The Mutual
Life Insurance Company of New York, dated as of July 18, 1985, recorded at Deed
Book 9623, page 75, aforesaid records, as amended by First Amendment to
Agreement Regarding Georgia 400 Highway Extension dated as of July 18, 1985,
recorded at Deed Book 10290, page 419, aforesaid records; the interest of R-H
Associates Bldg. II Corp. thereunder having been assigned to Two Atlanta
Financial Center Associates by that certain Assignment and Assumption (DOT
Agreements), dated July 28, 1987, recorded in Deed Book 10973, page 179,
aforesaid records.
6. Limited Warranty Deed from Robinson-Humphrey Properties, Inc. to
Department of Transportation of State of Georgia, dated July 18, 1985, recorded
at Deed Book 9618, page 288, aforesaid records, as corrected by Corrective
Limited Warranty Deed dated as of July 18, 1985, recorded at Deed Book 10290,
page 372, aforesaid records.
7. Limited Warranty Deed from R-H Associates Bldg. III Corp., Georgia
corporation to the Department of Transportation of the State of Georgia, dated
April 4, 1989, filed for record July 19, 1989 at 9:30 a.m., recorded in Deed
Book 12667, page 222, aforesaid records.
9 of 13
<PAGE> 103
EXHIBIT "A"'
PHASE IV
All that tract or parcel of land lying and being in Land Lot 45, 17th District,
City of Atlanta, Fulton County, Georgia and being more particularly described as
follows:
TO FIND THE TRUE POINT OF BEGINNING begin at a point formed by the intersection
of the easternmost right-of-way line of Peachtree Road (a variable right-of way
being 80 feet at this point) with the northernmost right-of-way line of Highland
Drive (a 50-foot right-of-way) and proceed thence in a northeasterly direction
along the aforesaid easternmost right-of-way line a distance of 365.1 feet;
proceed thence along the aforesaid easternmost right-of-way line, north
13(degree)43'08" east a distance of 37.39 feet to a point; proceed thence in a
northeasterly direction along the aforesaid easternmost right-of-way line,
following the curvature thereof to the right, an arc distance of 179.12 feet to
a point, said arc being subtended by a chord 178.99 feet in length and bearing
north 20(degree)26'46" east; proceed thence in a northeasterly direction along
the aforesaid easternmost right-of-way line north 26(degree)16'11" east a
distance of 48.21 feet to a point; proceed thence in a northeasterly direction
along the aforesaid easternmost right-of-way line north 28(degree)17'14" east a
distance of 48.18 feet to a point; proceed thence in a northeasterly direction
along the aforesaid easternmost right-of-way line north 30(degree)11'09" east a
distance of 48.15 feet to a point; proceed thence in a northeasterly direction
along the aforesaid easternmost right-of-way line north 32(degree)20'44" east a
distance of 57.74 feet to a point; proceed thence in a northeasterly direction
along the aforesaid easternmost right-of-way line north 55(degree)03'02" east a
distance of 8.44 feet to a point; proceed thence in a northeasterly direction
along the aforesaid easternmost right-of-way line north 55(degree)32'07" east a
distance of 18.02 feet to a point; proceed thence in a southeasterly direction
along the aforesaid easternmost right-of-way line, following the curvature
thereof to the left, an arc distance of 7.77 feet to a point, said arc being
subtended by a chord 7.77 feet in length and bearing south 31(degree)52'33"
east, said point being THE TRUE POINT OF BEGINNING.
FROM THE TRUE POINT OF BEGINNING THUS ESTABLISHED proceed thence in a
northeasterly direction along the aforesaid easternmost right-of-way line north
35(degree)10'06" east a distance of 74.16 feet to a point; proceed thence in a
southeasterly direction along the aforesaid easternmost right-of-way line south
58(degree)48'33" east a distance of 6.36 feet to a point; proceed thence in a
northeasterly direction along the aforesaid easternmost right-of-way line north
31(degree)11'26" east a distance of 10.05 feet to a point; proceed thence in a
southeasterly direction along the aforesaid easternmost right-of-way line south
58(degree)48'29" east a distance of 19 feet to a point; proceed thence in a
northeasterly direction along the aforesaid easternmost right-of-way line north
31(degree)11'26 east a distance of 24.83 feet to a point; proceed thence in a
northwesterly direction along the aforesaid easternmost right-of-way line north
58(degree)48'44" west a distance of 19 feet to a point; proceed thence in a
northeasterly direction along the aforesaid easternmost right-of-way line north
31(degree)11'23" east a distance of 22.01 feet to a point; proceed thence in a
northeasterly direction along the aforesaid easternmost right-of-way line north
40(degree)58'56" east a distance of 74.76 feet to a point; thence leave said
right-of-way line and
Page 10 of 13
<PAGE> 104
EXHIBIT "A"
proceed thence south 21 (degree) 19'11" east a distance of 38.37 feet to a
point, proceed thence in a southeasterly direction along the arc of a curve to
the left, an arc distance of 131.99 feet to a point, said arc being subtended by
a chord 131.97 feet in length and bearing south 26(degree)58'00" east; proceed
thence south 31(degree)11'25" west a distance of 193.49 feet to a point; proceed
thence in a northwesterly direction along the arc of a curve to the right, an
arc distance of 14.05 feet to a point, said arc being subtended by a chord 14.05
feet in length and bearing north 31(degree)09'15" west, proceed thence in a
northwesterly direction along the arc of a curve to the right, an arc distance
of 171.77 feet to a point, said arc being subtended by a chord 171.77 feet in
length and bearing north 32(degree)46'15" west, said point being located on the
aforesaid easternmost right-of-way line and being THE TRUE POINT OF BEGINNING,
said tract or parcel of land being more particularly shown as 'Phase IV" on that
Survey by Mallett & Associates bearing the seal and certification of Michael F.
Lawler, Georgia Registered Land Surveyor No. 1946, prepared for The Mutual Life
Insurance Company of New York and Chicago Title Insurance Company, dated
December 20, 1993, last revised December 23, 1993, and being file no. 93153,
which survey is incorporated herein by this reference.
LESS AND EXCEPT that portion of the above property conveyed by the following:
(1) Limited Warranty Deed from Robinson-Humphrey Properties, Inc. to the
Department of Transportation of the State of Georgia, dated July 18, 1985,
recorded in Deed Book 9618, Page 288, aforesaid Records; as corrected by that
certain Corrective Warranty Deed recorded in Deed Book 10290, Page 372,
aforesaid Records.
(2) Limited Warranty Deed from Robinson-Humphrey Properties, Inc., a Georgia
corporation to the Department of Transportation of the State of Georgia, dated
April 4. 1989, filed for record July 19, 1989 at 9:30 a.m., recorded in Deed
Book 12667, page 163, aforesaid records.
(3) Limited Warranty Deed from Robinson-Humphrey Properties, Inc, a Georgia
corporation to the Department of Transportation of the State of Georgia, dated
April 4, 1989, filed for record July 19, 1989 at 9:30 a.m., recorded in Deed
Book 12667; Page 192, aforesaid Records.
TOGETHER WITH all easements appurtenant to the above property created by the
following:
(a) PARKING DECK AND EASEMENT Agreement by and among MICHAEL C CARLOS, George C
Carlos, Andrew C. Carlos, and R-H Building Partners, Ltd., dated July 15, 1981,
recorded in Deed Book 7903, Page 165, aforesaid Records; as amended by that
certain Amendment of Parking Deck and Easement Agreement, dated July 15, 1981,
recorded in Deed Book 7903, Page 385, aforesaid Records (said Amendment having
been terminated by Agreement dated September 20, 1982, recorded in Deed Book
8255, Page 475, aforesaid Records); as further amended by Second Amendment to
Parking Deck and Easement Agreement, dated July 18, 1985, recorded in Deed Book
9618, Page 37,
Page 11 of 13
<PAGE> 105
EXHIBIT "A"
aforesaid Records; as further amended by that certain Third Amendment to Parking
Deck and Easement Agreement, dated as of July 18, 1985, recorded in Deed Book
10290, Page 389, aforesaid Records; as further amended by that certain
Declaration of Release dated December 22, 1986, recorded in Deed Book 10561,
Page 358, aforesaid Records; as further amended by that certain Fourth Amendment
to Parking Deck and Easement Agreement, dated as of August 11, 1986, recorded in
Deed Book 11790, Page 76, aforesaid Records.
(b) Reciprocal Easement Agreement by and among Robinson-Humphrey Properties,
Inc., R-H Associates Bldg. II Corp. and Atlanta Financial Center Associates,
dated July 18, 1985, recorded in Deed Book 9618, Page 68, aforesaid Records; as
amended by that certain First Amendment to Reciprocal Easement Agreement, dated
as of July 18; 1985, recorded in Deed Book 10290, Page 411, aforesaid Records;
as further amended by that certain Declaration of Release, dated December 22,
1986, recorded in Deed Book 10561, Page 358, aforesaid Records; as further
amended by that certain Second Amendment to Reciprocal Easement Agreement, dated
as of August 11, 1988, recorded in Deed Book 11790, Page 69, aforesaid Records.
(c) Agreement by and among R-H Associates Bldg. II Corp., Atlanta Financial
Center Associates, Robinson-Humphrey Properties, Inc. and the Department of
Transportation of the State of Georgia, dated July 18, 1985, recorded in Deed
Book 9618, Page 145, aforesaid Records; as amended by that certain Amendment to
Agreement dated as of July 18, 1985, recorded in Deed Book 10290, Page 289,
aforesaid Records; the interest of R-H Associates Bldg. II Corp. thereunder
having been assigned to Two Atlanta Financial Center Associates by that certain
Assignment and Assumption (DOT Agreements), dated July 28, 1987, recorded in
Deed Book 10973, Page 179, aforesaid Records.
(d) Agreement Regarding Georgia 400 Extension, by and among R-H Associates Bldg.
II Corp., Robinson-Humphrey Properties, Inc., Atlanta Financial Center
Associates MONY Mortgage Investors, and The Mutual Life Insurance Company of New
York, dated July 18, 1985, recorded in Deed Book 9623, Page 75, aforesaid
Records; as amended by that certain First Amendment to Agreement Regarding
Georgia Highway 400 Extension, dated as of July 18, 1985, recorded in Deed Book
10290, Page 419, aforesaid Records; the interest of R-H Associates Bldg. II
Corp. thereunder having been assigned to Two Atlanta Financial Center Associates
by that certain Assignment and Assumption (DOT Agreements) dated July 28, 1987,
recorded in Deed Book 10973, Page 179, aforesaid Records.
(e) Limited Warranty Deed from Robinson-Humphrey Porperties, Inc. to the
Department of Transportation of the State of Georgia, dated July 18, 1985,
recorded in Deed Book 9618, Page 288, aforesaid Records; as corrected by that
certain Corrective Warranty Deed recorded in Deed Book 10290, Page 372,
aforesaid Records.
(f) Limited Warranty Deed from Robinson-Humphrey Properties, Inc., a Georgia
corporation to the Department of Transportation of the State of Georgia, dated
April 4,
Page 12 of 13
<PAGE> 106
EXHIBIT "A"
1989, filed for record July 19, 1989 at 9:30 a.m., recorded in Deed Book 12667,
Page 163, aforesaid Records.
(g) Limited Warranty Deed from Robinson-Humphrey Properties, Inc., a Georgia
corporation to the Department of Transportation of the State of Georgia, dated
April 4, 1989, filed for record July 19, 1989 at 9:30 a.m., recorded in Deed
Book 12667, Page 192, aforesaid Records.
Page 13 of 13
<PAGE> 107
ENDORSEMENT
No. 1 OWNERS [X]
Attached to and forming a part of LOAN [ ]
Commitment No. 2-08478
Issued by
CHICAGO TITLE INSURANCE COMPANY
Said Commitment is amended as follows:
1. By deleting Special Exception 3(z), Part II, Schedule B thereof.
2. By adding to Part II, Schedule B as a Special Exception, the following:
"(bb) Easement from R-H Building Partners, Ltd. to Georgia Power Company,
dated May 24, 1982, recorded in Deed Book 8163, Page 272, aforesaid
Records, located shown on that survey referred to in Exhibit "A"
attached as hereto."
3. All other terms and conditions of said commitment shall remain unchanged.
This endorsement is made a part of the policy or commitment and is subject to
all the terms and provisions thereof and of any endorsements thereto. Except to
the extent expressly stated, it neither modifies any of the terms and provisions
of the policy or commitment and prior endoresements, if any, nor does it extend
the effective date of the policy or commitment and prior endorsements or
increase the face amount thereof.
CHICAGO TITLE INSURANCE COMPANY
Dated: August 9, 1996 By:
RAMSAY & CALLOWAY TITLE SERVICES, INC. /s/
/s/ [Seal}
- ------------------------------- ATTEST:
Authorized Signatory President
Note: This endorsement shall not be
valid or binding until countersigned
by an authorized signatory. /s/
Secretary
<PAGE> 108
EXHIBIT "K"
AFTER RECORDING RETURN TO:
James W. Addison, Esq.
Troutman Sanders LLP
600 Peachtree Street, N.E.
Suite 5200
Atlanta, Georgia 30308 2216
LIMITED WARRANTY DEED
THIS LIMITED WARRANTY DEED, made as of the day of , 1996, by and
---- ------
between THE MUTUAL LIFE INSURANCE COMPANY OF NEW YORK, a New York corporation
(hereinafter referred to as "Grantor"), and
-----------------------------------
(hereinafter referred to as
- -------------------------------------------
"Grantee")("Grantor" and "Grantee" to include their respective successors,
legal representatives and assigns where the content requires or permits),
WITNESSETH
THAT FOR AND IN CONSIDERATION of the sum of Ten and No/100 Dollars ($10.00)
and other good and valuable consideration, the receipt and sufficient of which
are hereby acknowledged, Grantor has granted, bargained, sold, conveyed and
confirmed, and does hereby grant, bargain sell convey and confirm unto Grantee
certain improved real property (hereinafter referred to as the "Property")
located in the City of Atlanta, County of Fulton, State of Georgia, as more
particularly described in Exhibit "A" attached hereto and by this reference made
a part hereof
TO HAVE AND TO HOLD the Property, together with all and singular the
rights, members and appurtenances thereof, to the same being, belonging, or in
anywise appertaining, to the only proper use, benefit and behoof of Grantee
forever in fee simple; subject however, to the matters (hereinafter referred to
as the "PERMITTED TITLE EXCEPTIONS") set forth in EXHIBIT "B" attached hereto
and by this reference made a part hereof.
GRANTOR HEREBY WARRANTS and will forever defend the right and title to the
Property unto Grantee against, but only against, the lawful claims of all
persons owning, holding or claiming by, through or under Grantor, except for
claims arising under or by virtue of the Permitted Title Exceptions
<PAGE> 109
IN WITNESS WHEREOF, Grantor has executed and delivered this deed under seal
as of the date first above written.
Signed, sealed and delivered in THE MUTUAL LIFE INSURANCE COMPANY
the presence of: OF NEW YORK, a New York corporation
- --------------------------
Unofficial Witness
By:
--------------------------------
- -------------------------- --------------------------------
Notary Public ARES Realty Capital, Inc.
Authorized Signatory
Commission Expiration Date: [CORPORATE SEAL]
[NOTARIAL SEAL]
2
<PAGE> 110
EXHIBIT "A"
[LEGAL DESCRIPTION OF PROPERTY]
<PAGE> 111
EXHIBIT "B"
PERMITTED TITLE EXCEPTIONS
<PAGE> 112
EXHIBIT "L"
BILL OF SALE AND ASSIGNMENT
THIS BILL OF SALE AND ASSIGNMENT (hereinafter referred to as this
"AGREEMENT"), made and entered into as of the day of , 1996, by
---- ------
and between THE MUTUAL LIFE INSURANCE COMPANY OF NEW YORK, a New York
corporation (hereinafter referred to as "SELLER") and (hereinafter referred to
as "PURCHASER"),
WITNESSETH
WHEREAS, Seller is the owner of certain improved real property (hereinafter
referred to as the "PROPERTY") located in the City of Atlanta, County of
Fulton, State of Georgia, as more particularly described in EXHIBIT "A"
attached hereto and by this reference made a part hereof; and
WHEREAS, Seller has on even date conveyed the Property to Purchaser, and in
connection therewith Seller wishes hereby to transfer and assign to Purchaser
all of Seller's right, title and interest in and to certain personal property
related to the Property as more particularly described below.
NOW, THEREFORE, in consideration of the sum of Ten Dollars ($10.00) and
other good and valuable consideration, in hand paid by Purchaser to Seller, the
receipt and sufficiency of which are hereby acknowledged, Seller and Purchaser
hereby covenant and agree as follows:
1. PERSONALTY. Seller hereby grants, bargains, sells, conveys, transfers
and delivers to Purchaser, if and to the extent transferable, all personal
tangible property owned by Seller and which is located on and relates to the
design, construction, ownership, use, management, leasing, maintenance, service
or operation of the Property, including, without limitation, any plans,
specifications, drawings, books, records, lease files, licenses, permits,
certificates of occupancy, keys, office furniture, equipment and supplies, and
janitorial service, repair, maintenance equipment, machinery and supplies
(hereinafter referred to collectively as the "PERSONALTY").
2. INTANGILBLES. Seller hereby grants, bargains sells, conveys, transfers
and delivers to Purchaser, if and to the extent transferable, any rights which
Seller may have in the following (hereinafter referred to collectively as the
"INTANGIBLES"): any intangible assets relating to the Property or the
Personality, including, without limitation, the name "Atlanta Financial Center"
(excluding, however, (a) any tenant leases for space in the Property (which
tenant leases are being assigned by Seller to Purchaser by separate instrument
of even date herewith), (b) all rights of Seller under or pursuant to that
certain Purchase and Sale
<PAGE> 113
Agreement entered into between Seller and Purchaser dated August _______ , 1996,
oncerning the purchase and sale of the Property, and (c) any claims or causes
of action Seller may have against (i) any prior direct or indirect owner of all
or any portion of the Property or the Personalty, (ii) any prior tenants of the
Property, (iii) any current or prior manager or leasing agent of the Property,
and (iv) PPG Industries, Inc., Sunbelt Glass & Aluminum, Inc., The Beck Company
and Pace Construction Company, and their affiliates, relating in any way to the
spandrel glass in the portion of the Property known as the "North Tower").
3. WARRANTY OF TITLE. Seller hereby warrants and will forever defend the
right and title to the Personalty and the Intangibles against, but only against,
the lawful claims of all persons owning, holding or claiming by, through or
under Seller, except for claims arising under or by virtue of the matters
described on Exhibit "B" attached hereto and by this reference made a part
hereof.
4. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and inure
to the benefit of Purchaser and Seller and their respective heirs, legal
representatives, successors and assigns.
IN WITNESS WHEREOF, Seller has executed this Agreement under seal as of the
date first above written.
THE MUTUAL LIFE INSURANCE COMPANY
OF NEW YORK, a New York corporation
By:
--------------------------------
------------------------------,
ARES Realty Capital, Inc.
Authorized Signatory
[CORPORATE SEAL]
2
<PAGE> 114
EXHIBIT "A"
LEGAL DESCRIPTION OF PROPERTY
<PAGE> 115
EXHIBIT "B"
PERMITTED TITLE EXCEPTIONS
<PAGE> 116
EXHIBIT "M"
ASSIGNMENT AND ASSUMPTION OF LEASES
THIS ASSIGNMENT AND ASSUMPTION OF LEASES (hereinafter referred to as this
"AGREEMENT"), made and entered into as of the day of , 1996, by and
_____ _____
between THE MUTUAL LIFE INSURANCE COMPANY OF NEW YORK, a New York corporation
(hereinafter referred to as "SELLER"), and
-------------------------------------
(hereinafter referred to as
- ------------------------------------------
"PURCHASER"),
WITNESSETH
WHEREAS, Seller is the owner of certain improved real property (hereinafter
referred to as the "PROPERTY") located in the City of Atlanta, County of
Fulton, State of Georgia, as more particularly described in EXHIBIT "A"
attached hereto and by this reference made a part hereof; and
WHEREAS, Seller has on even date conveyed the Property to Purchaser, and in
connection therewith Seller wishes hereby to transfer and assign to Purchaser
all of Seller's right, title and interest in and to certain leases related to
the Property as more particularly described below
NOW, THEREFORE, in consideration of the sum of Ten Dollars ($10.00) and
other good and valuable consideration, in hand paid by Purchaser to Seller, the
receipt and sufficiency of which are hereby acknowledged, Seller and Purchaser
hereby covenant and agree as follows:
1. ASSIGNMENT AND ASSUMPTION. Seller hereby transfers and assigns to
Purchaser all of Seller's right, title and interest in and to (i) the lease,
rental and occupancy agreements (hereinafter referred to collectively as the
"Leases") described in EXHIBIT "B" attached hereto and by this reference made a
part hereof, and (ii) the leasing commission agreements (hereinafter referred to
collectively as the "COMMISSION AGREEMENTS") described in EXHIBIT "C" attached
hereto and by this reference made a part hereof Purchaser hereby assumes
Seller's obligations and liabilities arising from and after the date of this
Agreement under both the Leases, and the Commission Agreements. Further,
Purchaser hereby agrees to indemnify Seller and hold Seller harmless from any
loss, damage, liability, cost or expense (including, without limitation, court
costs and attorney's fees) which Seller shall hereafter incur or have asserted
against it with regard to said obligations and liabilities assumed by Purchaser
in connection with the Leases and the Commission Agreements.
2. SELLER'S INDEMNITY. Seller hereby agrees to indemnify Purchaser and hold
Purchaser harmless from any loss, damage, liability, cost or expense (including,
without limitation, court costs and attorney's fees) which Purchaser shall
hereafter incur or have
<PAGE> 117
asserted against it in connection with obligations and liabilities under the
Leases and the Commission Agreements to the extent performance or payment of
such obligations and liabilities was due prior to the date of this Agreement.
3. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and inure
to the benefit of Purchaser and Seller and their respective heirs, legal
representatives, successors and assigns.
IN WITNESS WHEREOF, Seller and Purchaser have executed this Agreement under
seal as of the date first above written.
SELLER:
THE MUTUAL LIFE INSURANCE COMPANY
OF NEW YORK, a New York corporation
By:
-------------------------------
----------------------------,
ARES Realty Capital, Inc.
Authorized Signatory
[CORPORATE SEAL]
PURCHASER:
2
<PAGE> 118
EXHIBIT "A"
LEGAL DESCRIPTION OF PROPERTY
<PAGE> 119
EXHIBIT "B"
SCHEDULE OF LEASES
<PAGE> 120
EXHIBIT "C"
SCHEDULE OF LEASE COMMISSION AGREEMENTS
<PAGE> 121
EXHIBIT "N"
ASSIGNMENT AND ASSUMPTION OF CONTRACTS
THIS ASSIGNMENT AND ASSUMPTION OF CONTRACTS (hereinafter referred to as
this "AGREEMENT"), made and entered into as of the day of , 1996,
---- ------
by and between THE MUTUAL LIFE INSURANCE COMPANY OF NEW YORK, a New York
corporation (hereinafter referred to as "SELLER"), and
-------------------------
(hereinafter referred to
- -------------------------------------------------------
as "PURCHASER"),
WITNESSETH
WHEREAS, Seller is the owner of certain improved real property (hereinafter
referred to as the "PROPERTY") located in the City of Atlanta, County of
Fulton,, State a Georgia, as more particularly described in EXHIBIT "A" attached
hereto and by this reference made a part hereof; and
WHEREAS, Seller has on even date conveyed the Property to Purchaser, and is
connection therewith Seller wishes hereby to transfer and assign to Purchaser
all of Seller' right, title and interest in and to certain service contracts
related to the Property as more particularly described below.
NOW, THEREFORE, in consideration of the sum of Ten Dollars ($10.00) and
other good and valuable consideration, in hand paid by Purchaser to Seller, the
receipt and sufficiency of which are hereby acknowledged, Seller and Purchaser
hereby covenant and agree as follows:
1. ASSIGNMENT AND ASSUMPTION. Seller hereby transfers and assigns to
Purchaser if and to the extent assignable, all of Seller's right, title and
interest in and to the contract' and agreements (hereinafter referred to
collectively as the "SERVICE CONTRACTS") described in EXHIBIT "B" attached
hereto and by this reference made a part hereof. Purchaser hereby assumes
Seller's obligations and liabilities arising from and after the date of this
Agreement under the Service Contracts. Further, Purchaser hereby agrees to
indemnify Seller and hold Seller harmless from any loss, damage, liability, cost
or expense (including, without limitation, court costs and attorney's fees)
which Seller shall hereafter incur or have asserted against it with regard to
said obligations and liabilities assumed by Purchaser in connection with the
Service Contracts.
2. SELLER'S INDEMNITY. Seller hereby agrees to indemnify Purchaser and hold
Purchaser harmless from any loss, damage, liability, cost or expense (including,
without limitation, court costs and attorneys fees) which Purchaser shall
hereafter incur or have asserted against it in connection with obligations and
liabilities under the Service Contracts
<PAGE> 122
to the extent performance or payment of such obligations and liabilities was due
prior to the date of this Agreement.
3. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and inure
to the benefit of Purchaser and Seller and their respective heirs, legal
representatives, successors and assigns.
IN WITNESS WHEREOF, Seller and Purchaser have executed this Agreement under
seal as of the date first above written.
SELLER:
THE MUTUAL LIFE INSURANCE COMPANY
OF NEW YORK, a New York corporation
By:
-------------------------------
----------------------------,
ARES Realty Capital, Inc
Authorized Signatory
[CORPORATE SEAL]
PURCHASER:
2
<PAGE> 123
EXHIBIT "A"
LEGAL DESCRIPTION OF PROPERTY
<PAGE> 124
EXHIBIT "B"
SCHEDULE OF SERVICE CONTRACTS
<PAGE> 125
EXHIBIT "O"
-----------
FORM OF MANAGEMENT AGREEMENT
----------------------------
COMMERCIAL MANAGEMENT AND LEASING AGREEMENT
BETWEEN
_________________________________
AS OWNER
AND
ARES, INC.
AS MANAGER
PROPERTY: ATLANTA FINANCIAL CENTER, ATLANTA, GEORGIA
SEPTEMBER ______, 1996
<PAGE> 126
<TABLE>
<CAPTION>
TABLE OF CONTENTS
<S> <C> <C>
ARTICLE 1. TERM ...........................................................1
1.1 Term of Agreement ..............................................1
ARTICLE 2. MANAGER'S RESPONSIBILITIES .....................................1
2.1 Management .....................................................1
2.2 Employees ......................................................2
2.3 Compliance with Laws, Mortgages, etc............................3
2.4 Approved Budget ................................................4
2.5 Collection of Rents and Other Income ...........................5
2.6 Repairs and Maintenance ........................................6
2.7 Capital Expenditures ...........................................6
2.8 Service Contracts ..............................................7
2.9 Taxes, Mortgages and Ground Rent ...............................7
2.10 Miscellaneous Duties ...........................................8
2.11 Onsite Office ..................................................9
2.12 Certain Limitations on Authority ...............................9
ARTICLE 3. CONSTRUCTION SUPERVISORY SERVICES .............................10
3.1 Construction Supervisory Services .............................10
ARTICLE 4. EXCLUSIVE LEASING AGENT FOR PROPERTY ..........................10
4.1 Leasing........................................................10
4.2 Leasing Guidelines ............................................11
4.3 Approved Forms of Leases ......................................11
4.4 Leasing Commission ............................................11
4.5 Co-Brokerage ..................................................12
4.6 Indemnity .....................................................12
ARTICLE 5. INSURANCE .....................................................13
5.1 Owner's Insurance .............................................13
5.2 Manager's Insurance............................................13
5.3 Contractor's and Subcontractor's Insurance ....................14
ARTICLE 6. FINANCIAL, REPORTING AND RECORD KEEPING .......................15
6.1 Books of Accounts .............................................15
6.2 Account Classification ........................................15
6.3 Financial Reports .............................................15
6.4 Supporting Documentation ......................................16
6.5 Accounting Principles .........................................16
6.6 Other Reporting ...............................................16
</TABLE>
-i-
<PAGE> 127
<TABLE>
<S> <C> <C>
ARTICLE 7. OWNER'S RIGHT TO AUDIT.........................................16
7.1 Owner's Right to Audit.........................................16
ARTICLE 8. BANK ACCOUNT ..................................................17
8.1 Accounts ......................................................17
8.2 Security Deposit Account.......................................17
8.3 Change of Banks................................................17
8.4 Access of Account..............................................17
8.5 Sweeping Accounts .............................................18
ARTICLE 9. CONSTRUCTION SUPERVISORY SERVICES .............................18
9.1 Payment .......................................................18
9.2 Additional Services............................................18
ARTICLE 10.MANAGER'S COSTS TO BE REIMBURSED ..............................18
10.1 Reimbursable Costs.............................................18
10.2 Non-Reimbursable Costs ........................................19
ARTICLE 11.INSUFFICIENT GROSS INCOME .....................................20
11.1 Priorities ....................................................20
11.2 Funding of Shortfalls by Owner.................................20
ARTICLE 12.SALE OF THE PROPERTY ..........................................20
12.1 Cooperation with Sales Broker .................................20
ARTICLE 13.COOPERATION....................................................21
13.1 Cooperation ...................................................21
ARTICLE 14.COMPENSATION ..................................................21
14.1 Compensation ..................................................21
ARTICLE 15.RENEWAL; TERMINATION ..........................................21
15.1 Renewal .......................................................21
15.2 Termination on Sale ...........................................21
15.3 Termination for Cause .........................................21
15.4 Termination Without Cause .....................................23
15.5 Final Accounting; Cooperation .................................24
ARTICLE 16.NOTICES .......................................................24
16.1 Notices .......................................................24
ARTICLE 17.NON-ASSIGNABLE, ETC. ..........................................25
17.1 No Assignment; Successor Owner Liability ......................25
17.2 Pronouns ......................................................26
17.3 Amendments ....................................................26
</TABLE>
-ii-
<PAGE> 128
<TABLE>
<S> <C> <C>
17.4 Heading ......................................................26
17.5 Severability .................................................26
17.6 Complete Agreement ...........................................26
17.7 Status of Manager ............................................26
17.8 No Waiver ....................................................26
17.9 Governing Laws ...............................................27
17.10 Indemnity by Manager .........................................27
17.11 Indemnity by Owner ...........................................27
17.12 Survival .....................................................27
17.13 Renegotiation ................................................27
17.14 Assistance with and Subordination to Financing ...............28
</TABLE>
Schedule A - Property
Schedule B - Gross Collections Definition
Schedule C - Leasing Commission Schedule
Schedule D - Manager's Employees
Schedule E - Compensation for Construction Management and Project Management
Services
-iii-
<PAGE> 129
COMMERCIAL MANAGEMENT AND LEASING AGREEMENT
THIS COMMERCIAL MANAGEMENT AND LEASING AGREEMENT (hereinfter referred to as
this "Agreement"), made as of the_________day of September, 1996 by and between
_____________________________________________________________________________
having an office at 115 Perimeter Center Place, Suite 940, Atlanta, Georgia
30346 (hereinafter referred to as "Owner"), and ARES, INC., a Connecticut
corporation having an office at One Atlantic Street, Stamford, Connecticut 06901
(hereinafter referred to as "Manager"),
WITNESSETH:
WHEREAS, Owner is the owner of the fee estate in and to that certain
property described on Schedule A annexed hereto (hereinafter referred to as the
"Property"), and desires to engage Manager to manage, operate and lease the
Property in accordance with the terms and provisions of this Agreement.
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and sufficiency whereof are hereby
acknowledged, the parties hereto hereby covenant and agree as follows:
ARTICLE 1. TERM
1.1 TERM OF AGREEMENT. Manager's duties and responsibilities under this
Agreement with respect to the Property shall begin as of the date of this
Agreement (hereinafter referred to as the "Commencement Date"), and shall extend
for a term of 12 months therefrom unless renewed or earlier terminated as
provided in Article 15.
ARTICLE 2. MANAGER'S RESPONSIBILITIES
2.1 MANAGEMENT. Manager shall manage, operate and lease the Property and
shall arrange for the performance of any and all services required to be
performed by Owner for the benefit of the Tenants (as hereinafter defined)
pursuant to the Leases (as hereinafter defined), subject to (a) the limitations
imposed by this Agreement, and (b) applicable law and applicable rulings and
orders of governmental authorities having jurisdiction. In performing its
obligations hereunder, Manager shall perform all services with respect to the
Property in a diligent, efficient and professional manner in accordance with the
management standards of professional first-class management companies providing
the same or similar supervisory services to other owners of comparable
properties in the locale in which the Property is located, and shall act in good
faith and in Owner's best
<PAGE> 130
interests and use its best efforts to carry out Manager's obligations under this
Agreement in consideration of the interests and goals of Owner from time to time
disclosed by Owner to Manager, all in accordance with such management standards
(the foregoing is referred to herein as the "Management Standard").
Notwithstanding anything to the contrary contained in this Agreement, Manager's
use of its best efforts in the performance of Manager's obligations under this
Agreement shall not require (i) the commencement of any litigation, arbitration
or other proceeding unless specifically authorized by Owner or (ii) the
expenditure of any of Manager's funds for costs which are Owner's responsibility
hereunder. Manager shall, with respect to the Property, perform such duties as
are customarily performed in accordance with the Management Standard and are
consistent with the scope of this Agreement. Manager shall act in a fiduciary
capacity with respect to the proper protection of and accounting for Owner's
assets. In this capacity, Manager shall deal at arm's length with all third
parties, including, without limitation, any of its affiliates.
2.2 EMPLOYEES. Manager shall employ at all times a sufficient number of
employees to enable Manager to properly manage, operate and lease the Property.
All matters pertaining to the employment, supervision, compensation, promotion
and discharge of such employees shall be the responsibility of Manager;
provided, however, that Owner shall have the right, exercised in Owner's
reasonable discretion, to disapprove any employees selected by Manager to carry
out Manager's obligations under this Agreement, and Manager shall not so utilize
any such disapproved employees. If Owner determines, in its reasonable
discretion, that Manager's employee(s) are not adequately performing the duties
or fulfilling the responsibilities of Manager under this Agreement, Owner
reserves the right to require Manager to substitute other employees of Manager
to assume Manager's duties hereunder, subject to the provisions of any
applicable collective bargaining agreements or labor contracts governing the
employment of such employees. Manager shall execute, to the extent required,
collective bargaining agreements or labor contracts with respect to such
employment; provided, however, the foregoing shall not be deemed to require
Manager to use any union labor or services in the performance of its duties
under this Agreement, and provided, further, that any such agreements or
contracts shall be executed in the name of Manager, not Owner. Manager shall
fully comply with all applicable laws and regulations relating to workers'
compensation, social security, unemployment insurance, hours of labor, wages,
working conditions, and other employer-employee related subjects. Manager shall
execute and file all returns and other instruments and do and perform all acts
required with regard to Manager's employees under the Federal Insurance
Contribution Act, the Federal Unemployment Tax Act, and Subtitle C of the
Internal Revenue Code with respect to wages paid by Manager and under any
similar federal and state laws now or hereafter in force. This agreement is not
one of agency by the Manager for the owner but one with the Manager engaged
independently in the business of managing properties on its own behalf, as an
independent contractor. All employment arrangements are therefore the sole
responsibility of the Manager, and the Owner shall have no liability with
respect thereto, except as expressly provided in this Agreement.
Attached hereto as Schedule D is a schedule of all employees to be employed
by Manager initially in the direct management of the Property (the entire
expense of which
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employees is to be charged directly to the Property). Manager shall update
Schedule D during the term of this Agreement within 30 days following any
changes to the information set forth therein. Except as set forth on Schedule
D, no employees' salaries may be charged to the Property without Owner's prior
approval which may be withheld in Owner's discretion.
2.3 COMPLIANCE WITH LAWS, MORTGAGES, etc. Manager shall promptly notify
Owner of any violation of any federal state and municipal laws, ordinances,
rules, regulations and orders relative to the leasing, use, operation, repair
and maintenance of the Property and of any rules, regulations or orders of the
local Board of Fire Underwriters or other similar body relative to the leasing,
use, operation, repair and maintenance of the Property (hereinafter collectively
referred to as the "Requirements") of which Manager has actual knowledge or of
any occurrence of which Manager has actual knowledge which could reasonably be
expected to cause a violation of any Requirement at a future date with respect
to the Property. Manager shall promptly forward to Owner any written notice
received by Manager asserting a violation of any Requirements at the Property.
Manager shall not take any action with respect to any violation of any
Requirements except to notify Owner and await Owner's instructions (unless,
except and to the extent either (i) Manager is obligated by law to take any
remedial action with regard to such violation, or (ii) Manager in its good faith
discretion determines that immediate remedial action is advisable in order to
prevent personal injury or material damage to the Property). Manager shall use
reasonable efforts in accordance with the terms of this Agreement to prevent any
violation of any Requirements respecting the Property, but Manager shall not be
required to make any payment from its own funds or incur any liability in order
to prevent any such violation.
Manager shall not in the performance of its services under this Agreement
violate the terms of any mortgage, deed of trust, deed to secure debt or other
security instrument (each hereinafter referred to as a "Mortgage") binding on or
affecting the Property provided that a copy of such Mortgage has been provided
to Manager by Owner, but Manager shall not be required to make any payment from
its own funds or incur any liability in order to comply with the terms or
conditions of any such Mortgage. As to any such Mortgage presented by Owner to
Manager, Manager shall prepare or cause to be prepared and submit to Owner a
summary of the obligations thereunder with regard to which Manager is
responsible for compliance on Owner's behalf; and Owner will promptly approve
such summary with such amendments or corrections thereto as Owner deems
reasonably appropriate and consistent with this Agreement.
Manager shall furnish to Owner, promptly upon receipt by Manager, any and
all written notices or orders affecting the Property, including, without
limitation, any summons or complaint, any notice from any taxing or other
governmental authority, any notice of default or otherwise from the holder of
any Mortgage, any notice of default by landlord under a Lease or any notice of
renewal, termination or cancellation of any insurance policy insuring the
Property. Manager shall not take any action with respect to any such notice or
order except to notify Owner and await Owner's instructions (unless, except and
to the extent either (i) Manager is obligated by law to take any remedial action
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with regard to such matter, or (ii) Manager in its good faith discretion
determines that immediate remedial action is advisable in order to prevent
personal injury or material damage to the Property).
Expenses to remedy violations of any Requirements or to comply with the
terms of any Mortgage shall be solely the obligation of Owner except to the
extent same is both caused by the negligence or willful misfeasance of Manager
and not covered by Owner's insurance (or if any insurance required hereby to be
carried by Owner is not so carried, then to the extent such expenses would have
been covered by such insurance if it had been covered with a $0.00 deductible).
2.4 APPROVED BUDGET. Manager shall prepare and submit to Owner a proposed
operating budget and capital budget (hereinafter referred to as the "Operating
Budget and Capital Budget") for the management, operation and leasing of the
Property for each calendar year. Each Operating Budget and Capital Budget
prepared by Manager shall be in a format reasonably approved by Owner and
Manager. The Operating Budget and Capital Budget shall include a detailed
statement of (a) Manager's annual marketing plan (including, without limitation,
proposed advertising, brochures and special events); (b) the space Manager
expects to be leased or renewed during such year; (c) the rent Manager expects
to obtain for such space; and (d) leasing guidelines, including free rent,
rebates and other concessions, any improvement allowances, brokerage commissions
(including any payable to Manager hereunder), and payments by tenants toward
operating expenses and taxes. Prior to the Commencement Date, Owner with
Manager's assistance shall establish the Operating Budget and Capital Budget to
be used for the period commencing on the Commencement Date and ending on
December 31, 1996 (such Operating Budget and Capital Budget shall be deemed to
be the Approved Operating Budget and Capital Budget (as hereinafter defined) for
such period). A draft proposed Operating Budget and Capital Budget for each
subsequent calendar year shall be delivered by Manager to Owner no later than
September 30 of the calendar year prior to such budget year. After consultation
with Owner, Manager will submit a proposed final Operating Budget and Capital
Budget no later than October 31 of the calendar year prior to such budget year.
Notwithstanding the foregoing, as to the Operating Budget and Capital Budget for
the year 1997, the initial draft proposed by Manager shall be delivered to Owner
within 30 days after the Commencement Date and the final Operating Budget and
Capital Budget shall be delivered by Manager to Owner within 60 days after the
Commencement Date.
Owner will consider the proposed Operating Budget and Capital Budget and
will consult with Manager in connection therewith during the ensuing period
prior to the commencement of the forthcoming calendar year. Owner may determine,
in its sole discretion, the content of the Operating Budget and Capital Budget.
Owner will notify Manager when the proposed Operating Budget and Capital Budget
has been approved specifying any changes therein required by Owner. The approved
Operating Budget and Capital Budget (hereinafter referred to as the "Approved
Operating Budget and Capital Budget") shall not be modified without Owner's
consent. Owner reserves the right to modify the Approved Operating and Capital
Budget from time to time in Owner's sole and absolute
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discretion. Owner will notify Manager of any modifications to the Approved
Operating Budget and Capital Budget. Owner's right to approve and modify the
Operating Budget and Capital Budget shall in no way entitle Owner to modify the
basis for compensation to, and reimbursement of, Manager as set forth in this
Agreement.
If all or any portion of a proposed Operating Budget and Capital Budget is
disapproved or deemed disapproved by Owner as of the commencement of the
relevant year or period covered by such proposed Operating Budget and Capital
Budget, then the prior Approved Operating Budget and Capital Budget or the
applicable portion thereof shall be deemed to constitute the Approved Operating
Budget and Capital Budget or portion thereof for the relevant year or period
until such time as the proposed Operating Budget and Capital Budget or portion
thereof is approved by Owner with, however, an increase in each applicable line
item of whatever additional amount is necessary to cover non-discretionary
increases in the costs and expenses which are the subject of such line item.
Non-discretionary increases shall include increases in required debt service,
ground rents, taxes, utilities, obligations imposed by Requirements (to the
extent failure to comply with which Requirements subjects Owner or Manager to
liability, penalty or criminal prosecution), insurance, contractual obligations
incurred under contracts (including, without limitation, Leases and co-brokerage
agreements entered into in accordance with this Agreement) executed in a
preceding period, and any sums due Manager under this Agreement.
Manager shall use its best efforts in accordance with the Management
Standard to ensure that the actual costs of maintaining and operating the
Property shall not exceed the Approved Operating Budget and Capital Budget in
total or in any one accounting category. All expenses shall be charged to the
property account as specified in a chart of accounts approved by Owner and,
unless expressly approved by Owner, no expense shall be classified or
reclassified for the purpose of avoiding an excess in the annual budgeted amount
in an accounting or operating category. Except as otherwise provided in Section
2.6 as a result of emergencies, Manager shall obtain Owner's prior written
approval for any expenditure which at any point in time would cause the
cumulative amount of any line item in the Approved Operating Budget and Capital
Budget as of such point in time to be exceeded by more than the greater of
$5,000 or 5% of the cumulative amount of such line item as of said point in
time.
Notwithstanding anything to the contrary contained in this Agreement,
Manager shall have the authority to expend funds from the Disbursement Account
(as hereinafter defined) for expenses which (a) were approved in the Operating
Budget portion of the Approved Operating Budget and Capital Budget, (b) are for
leasing commissions, tenant improvements and landlord's work applicable to
Leases approved by Owner, or (c) are due to Manager by Owner under this
Agreement, in each case without any subsequent requirement of approval by Owner.
2.5 COLLECTION OF RENTS AND OTHER INCOME. Manager shall bill all Tenants
and use best reasonable efforts to collect all rents (including escalation
billings resulting from increases in expenses or taxes or pursuant to any other
rent escalation provision) and
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other charges which may become due to Owner at any time from any Tenant or from
others in connection with or for the use of the Property or any portion thereof.
Manager shall use best reasonable efforts to collect and identify all income due
Owner for miscellaneous services provided to Tenants and other occupants of the
Property (including, without limitation, parking income, Tenant storage and coin
operated machines of all types). All amounts so collected shall be the property
of the Owner and shall be deposited in the Receipts Account. Manager shall not
terminate any Lease, lock out a Tenant, or institute suit for rent or for
recovery of possession, or institute any other similar remedial measures against
a tenant, without in each instance the prior written approval of Owner. In
connection with such suits or proceedings, only legal counsel designated by
Owner shall be retained. Manager shall not write off any income items without
the prior written approval of Owner in each instance.
2.6 REPAIRS AND MAINTENANCE. Manager shall supervise the performance of
all ordinary repairs and maintenance, and all cleaning, painting, decorations
and alterations including without limitation, electrical landscaping, plumbing,
carpentry, masonry, elevators and such other repairs as may be required of Owner
in the normal course of maintenance of the Property. Subject to Owner making
funds available as provided in this Agreement, Manager shall cause the Property
to be maintained at a standard acceptable to Owner. Except as provided in this
Section 2.6, no expenditure for any repair not provided for in the Approved
Operating Budget and Capital Budget shall be made without Owner's prior written
approval.
In cases of emergency, Manager may make expenditures from Owner's funds,
not to exceed $100,000 per emergency, for repairs without prior approval (but
with such notice, telephone or otherwise, as may be practicable in light of the
circumstances) if necessary to prevent material damage or injury or immediately
necessary to comply with Requirements (to the extent failure to comply with
which Requirements subjects Owner or Manager to liability, penalty or criminal
prosecution), or required to avoid the suspension of any necessary service to
the Property.
2.7 CAPITAL EXPENDITURES. The Approved Operating Budget and Capital
Budget shall not constitute an authorization for Manager to make any capital
expenditures (except with respect to Tenant improvements and landlord's work as
otherwise permitted under this Agreement) and all capital expenditures (except
such tenant improvements and such land lord's work) shall be specifically
authorized by Owner. With respect to the purchase and installation of major
items of new or replacement equipment (including, without limitation, elevators,
heating or air-conditioning equipment, incinerators, rugs, carpets or other
floor covering), Owner may arrange to purchase and install the same itself or
may authorize Manager to do so subject to prescribed supervision and
specification requirements and conditions.
Unless Owner specifically waives such requirements, either by notice or by
an amendment to this Agreement, all new or replacement equipment, or any
contract or
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subcontract for the performance of construction exceeding $10,000 shall be
awarded on the basis of competitive bidding, solicited in the following manner:
(a) a minimum of 3 written bids (inclusive of any bid submitted by or
on behalf of Manager or any affiliate of Manager) shall be
obtained for each purchase or contract and Manager will request
bids from any parties specifically requested by Owner;
(b) each bid shall be solicited in a form prescribed or agreed to by
Owner so that uniformity will exist in the bids;
(c) Manager shall provide Owner with all bids accompanied by
Manager's recommendations as to the most acceptable bid; and
(d) Owner shall be free to accept or reject any and all bids.
Owner will communicate to Manager its acceptance or rejection of bids.
Owner may authorize payment by Manager out of the Disbursement Account or may
pay for capital expenses from Owner's other resources.
2.8 SERVICE CONTRACTS. Manager shall arrange on behalf of Owner for the
cleaning, maintenance, repair and other services necessary for the proper
operation of the Property, but Manager shall not enter into any contract for
cleaning, maintaining, repairing or servicing the Property which has not been
budgeted for in the Approved Operating Budget and Capital Budget or otherwise
approved by Owner. As a condition to obtaining Owner's consent, Manager shall
supply Owner with a copy of the proposed contract. Each service contract shall:
(a) be in the name of Manager, as agent for Owner, (b) include a provision
permitting cancellation thereof by Owner or Manager upon not less than 30 days
written notice and (c) require that all contractors provide evidence of
insurance as set forth in Section 5.3. Unless Owner specifically waives such
requirements, either by notice or an amendment to this Agreement, all service
contracts having an annual cost in excess of $25,000 with respect to any
Property shall be subject to bid under the procedure as specified in Section
2.7.
When accepting bids or issuing purchase orders, Manager shall use its best
efforts in accordance with the Management Standard to secure for, and to credit
to, Owner any discounts, commissions or rebates obtainable as a result of any
such purchases.
2.9 TAXES, MORTGAGES AND GROUND RENT. Manager shall obtain and verify
bills for ground rent, real estate and personal property taxes, improvement
assessments and other like charges which are or may become liens against the
Property and recommend payment or appeal based upon Manager's best judgment.
Manager shall arrange for the payment of such bills on behalf of Owner in such
time so as to permit Owner to avoid any penalties for late payment or to permit
Owner to take advantage of discounts. Manager shall process such bills for
payment from the Disbursement Account. Manager shall not
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make any payments for the benefit of the Property on account of any ground lease
or Mortgage unless requested to do so by Owner. Manager will, if requested by
Owner, cooperate with and assist counsel or other party designated by Owner in
the preparation of an application for correction of the assessed valuation to be
filed with the appropriate governmental agency and in the negotiation and
prosecution of all claims for the abatement or reduction of property taxes and
other taxes affecting the Property and awards or takings by eminent domain
affecting the Property.
2.10 MISCELLANEOUS DUTIES.
Manager shall:
(a) maintain orderly files containing rent records, insurance
policies, Leases and subleases, correspondence, receipted bills
and vouchers and all other documents and papers pertaining to the
Property or the operation thereof and such records, documents
and papers shall at all times remain the property of Owner;
(b) cooperate with and provide information requested by Owner's
accountants in regard to the preparation by such accountants and
filing by Owner of federal, state, city and any other income or
to other tax returns required by any governmental authority;
(c) cause to be timely prepared and filed all necessary forms for
unemployment insurance, withholding and social security taxes and
all other tax and other forms relating to the employment of
Manager's employees at the Property as required by federal, state
or city authorities;
(d) consider Tenant service requests and complaints and record such
requests or complaints in accordance with a procedure reasonably
acceptable to Owner, showing the action taken with respect to
each; thoroughly investigate and report to Owner in a timely
fashion, with appropriate recommendations, all complaints of a
material nature; administer a Tenant relations program and
maintain a highly visible management presence;
(e) supervise the moving in and out of Tenants and subtenants and
arrange, to the extent possible, the dates thereof so that there
shall be minimum disturbance to the operation of the Property and
the conduct of business by other tenants and render an inspection
of the applicable premises and recommendation on the disposition
of any deposit held as security for the performance by any Tenant
under its Lease;
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(f) check all bills received for the services, work and supplies
ordered in connection with maintaining and operating the Property
and, except as otherwise herein provided, pay such bills when due
and payable;
(g) obtain from each Tenant certificates of insurance as required by
the Tenant's Lease; such certificate to be obtained prior to the
commencement of the Lease and thereafter annually prior to
expiration of the Tenant's insurance policies; and obtain from
all service providers and contractors evidence of insurance as
set forth in Section 5.3: and
(h) investigate and report in writing the Owner all accidents
occurring at the Property (which might reasonably be expected to
result in any claim against or damage to Owner or Manager) and
any material damage to or destruction of any portion of the
Property. For claims involving injury or damage of property,
Manager will promptly notify Owner and Owner's liability
insurance carrier. Manager shall coordinate and process all
insurance claims. Manager shall prepare any reports or
information required by Owner's insurance companies.
2.11 ONSITE OFFICE. Owner shall provide Manager's on-site personnel with
adequate office space and services related thereto at the Property pursuant to
the existing Lease Agreement between The Mutual Life Insurance Company of New
York, as landlord, and Manager, as tenant, dated February 1, 1996, or in such
other appropriate on-site location and at such other charges as shall be agreed
upon by Owner and Manager. All furniture and equipment commonly used and
reasonably required by Manager in the operation of such office shall be provided
by Manager at Owner's expense, subject to Owner's approval of such expenditures
in the Approved Operating Budget and Capital Budget or otherwise. All expenses
incurred by Manager pursuant to this Section 2.11 shall be pre-approved by Owner
pursuant to an Approved Operating Budget and Capital Budget or otherwise and
shall be reimbursed by Owner to Manager.
2.12 CERTAIN LIMITATIONS ON AUTHORITY. Owner expressly withholds from
Manager any power or authority to convey or otherwise transfer, pledge or lease
the Property, pledge the credit of Owner, or execute any promissory note,
mortgage, deed of trust, deed to secure debt, or security agreement or Lease in
the name of or on behalf of Owner. Except as otherwise provided in this
Agreement, Owner expressly withholds from Manager any power or authority to: (a)
incur any monetary or other obligation or execute any contract or other
agreement in the name of or on behalf of Owner, or (b) make any structural
changes in any building or make any other alterations or additions in or to any
such building or equipment therein, or incur any expense chargeable to Owner
other than expenses (i) included in the Approved Operating Budget and Capital
Budget, (ii) provided for in Leases approved by Owner, (iii) for which Manager
is permitted under the terms of
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this Agreement to incur without Owner's prior consent, or (iv) otherwise
approved in writing by Owner.
ARTICLE 3. CONSTRUCTION SUPERVISORY SERVICES
3.1 CONSTRUCTION SUPERVISORY SERVICES. Manager shall perform
the customary supervisory duties of a manager with respect to repairs and
maintenance and may be authorized to perform additional construction and project
supervisory services as well in connection with (a) non-routine extraordinary
repairs and maintenance (to the extent not included in Section 2.6 duties of
Manager), (b) capital expenditures (to the extent not included in Section 2.6
duties of Manager) and (c) Tenant improvements and landlord's work. All
construction and project management services to be provided by Manager pursuant
to clauses (a), (b) and (c) above shall be approved by Owner in advance and
shall be evidenced by an agreement between Owner and Manager reasonably
satisfactory to the parties. The compensation to be paid to Manager for
construction management and project management services shall be as set forth on
Schedule E annexed hereto.
ARTICLE 4. EXCLUSIVE LEASING AGENT FOR PROPERTY
4.1 LEASING. (a) Owner hereby engages Manager, on the terms
and conditions hereinafter provided, to act as the exclusive leasing agent for
the Property (all space leased or available for lease in the Property is
hereinafter referred to as the "Space") during the term of this Agreement.
Manager represents that Manager is duly qualified to act in such capacity and
that Manager has satisfied all Requirements with respect thereto. Manager shall
use its best efforts to lease the Space in accordance with the provisions of
this Agreement. Manager shall not incur any expenses on behalf of Owner in
connection with such leasing unless such costs and expenses are approved by
Owner pursuant to the Approved Operating Budget and Capital Budget, by approving
a Lease or otherwise in writing. Manager does not guarantee that it will be able
to lease the Space or any portion thereof, although Manager does agree that it
will use its best efforts to do so in accordance with the terms of this
Agreement.
(b) During the term of this Agreement, Manager shall have
the exclusive right on behalf of Owner to procure tenants to lease the Space,
including the renewal, extension, modification, amendment and restatement of
presently existing leases, licenses and occupancy agreements (all existing and
future leases (including leases of additional space), licenses and other
occupancy agreements, and all renewals, extensions, modifications, amendments
and restatements thereof (including pursuant to extension, expansion, offer,
refusal and other options), are hereinafter referred to as "LEASES" and all
existing and future tenants, licensees and occupants under Leases are
hereinafter referred to as "TENANTS"). Manager shall use its best efforts to
have the Space continuously rented to Tenants satisfactory to Owner, at monthly
rentals approved by Owner. All proposed Leases and all of the terms thereof
shall be subject to prior review and approval by Owner,
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including, without limitation, all Tenant improvements, work letters, abatement
programs, rent reductions and rebate programs. All Leases in effect on the
Commencement Date shall be deemed to have been approved by Owner for all
purposes of this Agreement, provided that Owner shall not be deemed to have
approved any expansion or extension of any such Leases except as expressly
provided therein or to have approved the terms and provisions of any Leases as
being applicable or acceptable to any Tenant other than the Tenants thereof.
Owner shall refer to Manager all offers and inquiries by prospective Tenants,
including those from other real estate brokers, with respect to renting Space
received by Owner. If Owner shall enter into a Lease during the term of this
Agreement, Manager shall be entitled to a Leasing Commission (as hereinafter
defined) in accordance with Section 4.4 whether or not Manager was involved in
the negotiation of such Lease.
4.2 LEASING GUIDELINES. At the request of Owner and at the
expense of Owner, Manager shall advertise the Space for rent, in accordance with
the marketing plan suggested by Manager and approved by Owner and by means of
periodicals, signs, plans, brochures and other means and media reasonably
appropriate and customary for the type of space that is being offered for lease,
including listing such Space at such listing prices as Owner shall direct from
time to time in leasing guidelines proposed from time to time by Manager as
requested by Owner and approved by the Owner (as in effect from time to time,
hereinafter referred to as the "Leasing Guidelines"); provided, however, all
written materials and advertisements and the cost thereof shall be subject to
the prior written approval of Owner. The cost of all marketing materials and
advertisements shall be paid by Owner.
4.3 APPROVED FORMS OF LEASES. Manager shall prepare, or cause
to be prepared, all Leases on the form or forms of lease suggested or prepared
by Manager and approved by Owner (hereinafter referred to as the "Approved
Form"). All terms and conditions of all Leases and all renewals of Leases, and
any amendments thereof, shall be approved by Owner. Unless otherwise directed by
Owner or specified in such leasing procedures, Manager shall conduct all
negotiations relating to Leases and shall prepare, or cause to be prepared,
Leases and other documents in accordance with the procedures specified by Owner.
Manager shall not submit any Lease to a Tenant without having received the prior
consent of Owner unless otherwise permitted to do so in accordance with the
leasing procedures specified by Owner. Manager is not authorized to execute any
Lease or any renewal, expansion or termination of or amendment to any Lease on
behalf of Owner, but rather Owner reserves the sole right and authority to
execute any such documents.
4.4 LEASING COMMISSION. (a) As compensation for acting as
exclusive leasing agent for the Space and for overseeing the administration of
the leasing (whether leased by Manager or a co-broker pursuant to an approved
co-brokerage agreement), Manager shall be paid the leasing commission
(hereinafter referred to as the "Leasing Commission") in accordance with the
commission schedule annexed to this Agreement as Schedule C. The Leasing
Commission shall be deemed earned and be paid as provided in Schedule C. Manager
shall be paid the Leasing Commission from the Disbursement Account; provided,
however, to the extent that amounts available in the Disbursement
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Account are inadequate to pay the entire Leasing Commission, if, as and when
earned, Owner shall promptly deposit adequate additional funds in the
Disbursement Account. The obligation of Owner to pay Leasing Commissions if, as
and when earned, shall survive the expiration or earlier termination of this
Agreement.
(b) Within 15 days after the expiration or earlier termination
of this Agreement, Manager shall furnish Owner with a written list (hereinafter
referred to as the "Pending Negotiation Lists") of any and all Tenants and
prospective Tenants who, within the 90 day period ending at such expiration or
receipt of any notice of termination (hereinafter referred to as the
"Pre-Termination Period"), either (i) directly or through an agent have during
the Pre-Termination Period made a written offer to lease Space (including,
without limitation, the submission of a proposed letter of intent or a proposed
Lease or of proposed modifications to such letter of intent or Lease), or (ii)
directly or through an agent have received from Manager during the
Pre-Termination Period a written proposal to lease Space (including, without
limitation, the submission of a proposed letter of intent or a proposed Lease or
of proposed modifications to such letter of intent or Lease). After the
effective date of the expiration or termination of this Agreement, Owner shall
continue to recognize Manager's compensation rights in connection with any Lease
of Space to a Tenant or a prospective Tenant validly named on the Pending
Negotiations List or to any affiliate of a Tenant or a prospective Tenant
validly named on the Pending Negotiations List, which is consummated within 6
months following the effective date of such expiration or termination, and shall
pay to Manager the Leasing Commission with respect to such Lease in accordance
with the applicable terms and conditions of this Agreement. In addition, the
expiration or termination of this Agreement shall not affect Manager's right to
collect or Owner's obligation to pay Leasing Commissions for transactions
consummated prior to the effective date of such expiration or termination and
with respect to which Leasing Commissions are to become due thereafter. Any
successor owner of the Property shall be deemed to have assumed the Owner's
obligations to pay the Leasing Commissions described in this Agreement, without
releasing the Owner; provided, however, if Owner provides Manager with a written
assumption agreement from the successor Owner in form and content reasonably
acceptable to Manager, Owner shall thereupon be released.
4.5 CO-BROKERAGE. Owner shall not authorize or permit any other
person, firm or corporation other than Manager to act as leasing agent for the
Property unless agreed to by Manager. Manager shall have the right to enter into
Brokerage agreements on behalf of and as the agent of (or otherwise in the name
of) Owner, in connection with the leasing of Space, but only with the prior
written approval of Owner. All leasing commissions which may be payable in
connection with any co-brokerage agreements entered into by Owner pursuant to
this Section 4.5 shall be paid by or on behalf of Owner.
4.6 INDEMNITY. Notwithstanding anything to the contrary contained in
this Agreement, if a claim is asserted against Manager and/or Owner by any
person or entity other than Manager for the payment of a broker or finder's fee
or commission in connection with the leasing of Space, Owner shall indemnity,
defend and hold Manager, its direct and indirect partners, shareholders and
members, and their respective directors, officers,
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managers and employees harmless from and against any such claim if such claim is
based upon an alleged contract, agreement or negotiation entered into by or
which is alleged to have taken place with Owner and not Manager.
ARTICLE 5. INSURANCE
5.1 OWNER'S INSURANCE. Owner shall maintain or cause to be
maintained the following types of insurance:
(a) all-risk property insurance in an amount equal to
100% of the full replacement cost of the Property,
with a commercially reasonable deductible, such
policy to contain a waiver of subrogation clause
in favor of Manager;
(b) commercial general liability insurance with a
limit of $2,000,000 per occurrence, covering
claims arising from bodily injury, property damage
and personal injury and including Manager as an
insured (Owner's commercial general liability
policy shall be considered primary and not excess
of any commercial general liability insurance
carried by Manager); and
(c) any other insurance which Owner deems necessary
and appropriate or which may be required to comply
with any Requirements.
Certificates of Insurance evidencing the above insurance shall be
delivered to Manager on the Commencement Date and annually thereafter upon the
expiration of the policies.
All policies of insurance required by this Section 5.1 shall
(i) be issued by insurers having a Bests rating of A:XII or better and
(ii) provide that such policies shall not be modified (so as to either drop
Owner as a named insured or drop below the specified coverage required) or
terminated without 30 days prior written notice to Manager.
5.2 MANAGERS INSURANCE. Manager shall maintain the following
types of insurance at Manager's expense:
(a) comprehensive crime policy covering Manager's employees
with a limit of not less than $1,000,000;
(b) worker's compensation insurance with coverages and
limits necessary to meet the requirements of the laws
of the states in which the employees are employed;
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(c) employers liability covering bodily injury:
by accident - $500,000 each accident; by disease -
$500,000 policy limit; by disease - $500,000 each
employee;
(d) commercial general liability insurance with a limit of
$2,000,000 per occurrence and $2,000,000 general
aggregate including coverage for bodily injury,
property damage and completed operations;
(e) comprehensive automobile liability covering all owned,
and hired vehicles with a combined single limit of
$1,000,000; and
(f) any other insurance which may be required to comply
with any Requirements applicable to Manager.
Evidence of such insurance in a form reasonably satisfactory to Owner will be
provided to Owner by Manager on the Commencement Date and annually thereafter.
All policies of insurance required by this Section 5.2 shall (i) be issued by
insurers having a Bests rating of A:X1I or better and (ii) provide that such
policies shall not be modified (so as to either drop Owner as a named insured or
drop below the specified coverage required) or terminated without 30 days prior
written notice to Owner.
5.3 CONTRACTOR'S AND SUBCONTRACTOR'S INSURANCE. Manager shall
require that all contractors and subcontractors performing work upon or
providing services to the Property at the direction of Manager have insurance
coverage, at their expense, in the following minimum amounts:
(a) worker's compensation as required by the law of the
state in which the Property is located;
(b) employers liability covering bodily injury:
by accident -$500,000 each accident;
by disease - $500,000 policy limit;
by disease - $500,000 each employee;
(c) commercial general liability insurance with a limit of
$1,000,000 per occurrence and $1,000,000 general
aggregate, including coverage for bodily injury,
property damage and completed operations; and
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(d) comprehensive automobile covering all owned, and
non-owned and hired vehicles with a combined single
limit of $1,000,000.
Owner, Manager and the holder of any Mortgage encumbering the
Property shall be added as additional insureds to the above policies (except for
worker's compensation). Certificates of insurance evidencing the above will be
delivered to Manager before any work is done or services provided.
Manager shall obtain Owner's written permission prior to amending
any of the above requirements.
ARTICLE 6. FINANCIAL, REPORTING AND RECORD KEEPING
6.1 BOOKS OF ACCOUNTS. Manager shall maintain adequate and
separate books and records of income and expense for the Property, the entries
to which shall be supported by sufficient documentation to ascertain that said
entries are properly and accurately recorded. Such books and records shall be
the property of Owner (subject to the right of Manager to retain copies
thereof), and shall be maintained by Manager at Manager's address stated in
Section 17.1, at the Property or at such other location as may be designated by
Manager by notice to Owner. Owner shall have access to such books and records at
all times, provided such access shall be exercised so as to avoid undue
interference with Manager's operations. Manager shall use reasonable efforts to
maintain reasonable control over accounting and financial transactions to
protect Owner's assets from error or fraudulent activity on the part of
Manager's officers or employees. Manager shall reimburse Owner for any uninsured
losses which may occur through the fraud, gross negligence or willful
misfeasance of Manager.
6.2 ACCOUNT CLASSIFICATION. Manager shall adopt a system of
classification of accounting entries (Chart of Accounts) reasonably satisfactory
to Owner.
6.3 FINANCIAL REPORTS. Manager shall furnish monthly reports of
all financial transactions occurring with respect to the Property during monthly
reporting periods ending on the 25th day of each month. These reports are to be
sent to Owner no later than the 7th calendar day of each month for the reporting
period ending on the 25th day of the immediately preceding month, and shall show
all collections, delinquencies, uncollectible items, vacancies and other matters
pertaining to the management, operation, maintenance and leasing of the Property
during the month. If the 7th day of any month is not a business day, then the
report shall be due on the next succeeding business day. The monthly reports
shall be in a format reasonably acceptable to Owner and Manager and shall also
include a comparison of monthly and year-to-date actual income and expenses with
the Approved Operating Budget and Capital Budget for the Property.
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6.4 SUPPORTING DOCUMENTATION. As additional support to the
monthly financial statements, if requested by Owner, Manager shall provide
copies of the following:
(a) all bank statements, bank deposit slips and bank
reconciliations;
(b) detailed cash receipts and disbursement records;
(c) detailed trial balance (if available);
(d) paid invoices; and
(e) supporting documentation for payroll, payroll taxes and
employee benefits.
6.5 ACCOUNTING PRINCIPLES. All financial statements and reports
required by Owner will be prepared on an accrual basis of accounting in
accordance with Generally Accepted Accounting Principles, unless otherwise
directed by Owner. Owner shall provide Manager with 30 days prior notice of any
decision of Owner to change the accounting basis on which the statements and
reports are to be prepared.
6.6 OTHER REPORTING. Manager shall maintain records reflecting
the progress of implementing the Leasing Guidelines, which records shall reflect
all executed Leases and all expenditures made by Manager on behalf of Owner in
the implementation of the Leasing Guidelines. Manager shall also deliver to
Owner monthly reports on the same dates as the monthly reports under Section 6.3
are due, reflecting all leasing activities for the same monthly reporting period
and, when requested by Owner, cumulative leasing activity for the calendar year
to date, which shall include an outline of all economic and other pertinent
business terms of each Lease signed with new Tenants and renewal Tenants
identified separately, a summary of all Lease expirations which were not renewed
(with a brief explanation of the reason not renewed), a summary of any
abandonments, Lease buyouts or sublease activity, and a brief explanation of the
status of all potential renewals for the next 12 months, as well as the status
of negotiations with all prospective new Tenants and any other information
reasonably requested by Owner. Manager shall also furnish such other reports and
statements as Owner may reasonably request.
ARTICLE 7. OWNER'S RIGHT TO AUDIT
7.1 OWNER'S RIGHT TO AUDIT. Owner reserves the right for
Owner's employees or others appointed by Owner to conduct examinations, and make
abstracts from or copies of the books and records maintained for Owner by
Manager at all times, provided such activities shall be undertaken in a manner
so as to avoid undue interference with Manager's operations. Owner also reserves
the right upon 30 days prior notice to Manager to perform any and all additional
audits relating to Manager's activities either at the property or at any office
of Manager; provided such audits are related to those activities performed by
Manager for Owner. Any such audit by Owner shall be scheduled so as not
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to interfere with Manager's efforts to assist in the preparation of the annual
audit for the Property. The cost of any such audit undertaken at the direction
of Owner shall be paid by Owner; provided, however, should any such audit
discover any discrepancies in such books and records in an aggregate amount in
excess of $150,000, the Manager shall reimburse Owner for the reasonable cost of
such audit.
Should Owner's employees or appointees discover defects in
internal bookkeeping control or errors in record keeping, Manager shall correct
such discrepancies at its own cost promptly following the discovery of such
defect. Manager shall promptly notify Owner of the action taken to correct such
defects or errors.
Any and all audits conducted by Owner's employees or
appointees will be at the sole expense of Owner (except as above expressly
provided).
ARTICLE 8. BANK ACCOUNTS
8.1 ACCOUNTS. Manager shall deposit all rents and other funds,
including any and all advance funds collected from the operation of the
Property, in any bank selected by Owner. The funds will be placed in one account
(hereinafter referred to as the "Receipts Account") for the Property in the name
of "_________________" or in such other name as Owner may designate, no later
than the next business day after receipt. Owner shall, or if requested by Owner,
Manager shall establish another account (hereinafter referred to as the
"Disbursement Account") in the name of "_________________" or in such other name
as Owner may designate from which Manager shall pay the operating expenses of
the Property and any other payments relative to the Property as required by the
terms of this Agreement.
8.2 SECURITY DEPOSIT ACCOUNT. Where Requirements require that
security deposits be separately maintained, or if Owner requires, Manager shall
open a separate account in the name of Owner or otherwise as Owner directs.
Manager shall be authorized to withdraw monies from security deposit funds at
such time as the security deposits are returnable to tenants or in the event of
a tenant default or other occurrence permitting application thereof under the
tenant's Lease. Manager shall maintain detailed records of all security deposits
deposited, and such records will be available for inspection by Owner's
employees or appointees upon reasonable prior notice.
8.3 CHANGE OF BANKS. At any time and from time to time, Owner
may direct Manager to change a bank or the depository arrangements
8.4 ACCESS OF ACCOUNT. Upon direction from Owner, Manager shall
cause any funds of Owner held by Manager to be transferred to Owner by federal
wire transfer. Through the use of signature cards, authorized representatives of
Owner shall be permitted access to any and all funds in the bank accounts
described in Sections 8.1 and 8.2. Manager
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shall not have any authority to withdraw sums from the Receipts Account except
as expressly provided in Section 8.5.
8.5 SWEEPING ACCOUNTS. All costs, expenses, fees, commissions,
and other payments with respect to the Property that are properly payable
pursuant to the terms of this Agreement shall be paid by Manager from time to
time from the Disbursement Account without any prior approval by or notice to
Owner. Manager shall remit to Owner on a bi-weekly basis, all amounts in the
Receipts Account in excess of the working capital reserve hereinafter set forth
and amounts transferred by Manager to the Disbursement Account in order to have
adequate funds available pursuant to the immediately preceding sentence. A
working capital reserve shall be maintained for the Property of $20,000 or such
greater amount as agreed upon by Owner and Manager which reserve shall be held
in the Receipts Account). Any provision hereof to the contrary notwithstanding,
if at any time funds in the Receipts Account available for transfer by Manager
to the Disbursement Account are insufficient to enable Manager to make all
disbursements from the Disbursement Account authorized by this Agreement, it
shall be Owner's responsibility within 5 business days after written request
from Manager to deposit additional funds in the Disbursement Account to cover
such deficit.
ARTICLE 9. PAYMENTS OF EXPENSES
9.1 PAYMENT. Manager shall make or cause to be made (but only
to the extent cash receipts from the Property are available therefor in the
Disbursement Account (from transfer from the Receipts Account or otherwise) or
to the extent Owner provides the funds therefor) the payment when due of all
obligations of Owner, the existence of which were (i) set forth in the Approved
Operating Budget and Capital Budget, (ii) provided for in approved Leases, or
(iii) otherwise permitted to be expended by Manager by the terms of this
Agreement or approved by Owner.
9.2 ADDITIONAL SERVICES. If Manager provides a Tenant with any
service which Manager is not required to provide such Tenant hereunder (e.g.,
leasing services in connection with the assignment of a Tenant's Lease or the
sublease of its premises and construction management services for tenant
construction work other than tenant improvements and landlord's work in
connection with new Leases), and for which such Tenant pays Manager a fee
pursuant to a separate agreement (oral or written) between Manager and such
Tenant, then said fee shall be paid to and retained by Manager for its own
account, provided Owner shall have previously approved Manager providing each
such service, which consent shall not be unreasonably withheld.
ARTICLE 10. MANAGER'S COSTS TO BE REIMBURSED
10.1 REIMBURSABLE COSTS. All expenses or costs incurred by
Manager in connection with the performance of its duties under this Agreement
and contained within
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an Approved Operating Budget and Capital Budget or otherwise expressly approved
by Owner in writing shall be at the sole cost and expenses of Owner except as
specifically provided in Section 10.2.
10.2 NON-REIMBURSABLE COSTS. The following expenses or costs
incurred on behalf of the Property shall be at the sole cost and expense of
Manager and shall not be reimbursed by Owner to Manager:
(a) cost of gross salaries, wages, payroll taxes, insurance,
workers' compensation, and other benefits of Manager's
office personnel or of Manager's other personnel, except as
provided in Section 2.2 and Schedule D;
(b) general accounting and reporting services unless otherwise
authorized by Owner;
(c) the Owner shall not be required to reimburse the Manager
for, and the Manager shall not be permitted to withdraw from
the Disbursement Account to pay, any costs (except, however,
if and to the extent such costs are covered by Owner's
insurance or would have been covered by Owner's insurance
had Owner been carrying all insurance required by Owner
under this Agreement) arising out of the fraud, negligence
or willful misfeasance of Manager or otherwise incurred by
Manager in violation of the terms and provisions of this
Agreement;
(d) cost of forms, papers ledgers and other supplies and
equipment used in Manager's non-Property offices;
(e) cost of electronic data processing equipment, or any pro
rata charge thereon, located at non-Property offices,
including but not limited to, computers, adding machines and
other equipment;
(f) cost of electronic data processing provided by computer
service companies;
(g) costs and expenses incurred by Manager for the purpose of
adopting Owner's required reporting system;
(h) cost of comprehensive crime insurance or fidelity bond or
other insurance purchased by Manager for its own account;
(i) rent and utilities for any off-site office of Manager,
unless otherwise authorized by Owner; and
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(j) costs of local travel.
ARTICLE 11. INSUFFICIENT GROSS INCOME
11.1 PRIORITIES. If at any time the gross income for the Property shall not
be sufficient (or Manager reasonably anticipates that such gross income will not
be sufficient) to pay all the bills, charges and Mortgage payments which may be
incurred with respect to the Property (including all fees and expenses payable
to Manager hereunder), the funds available will be paid out of the Disbursement
Account in the following order of priority:
(a) first, Mortgage payments;
(b) second, bills and charges of third parties;
(C) third, bills and charges incurred by Manager and fees due Manager
for Manager's services provided to Owner.
11.2 FUNDING OF SHORTFALLS BY OWNER. If at any time the gross income for
the Property shall not be sufficient (or Manager reasonably anticipates that
such gross income will not be sufficient) to pay all bills, charges and Mortgage
payments which may be incurred with respect to the Property (including all fees
and expenses payable to Manager hereunder), Manager shall promptly notify Owner
of such shortfall. Owner shall advance sufficient funds within 5 days to the
Disbursement Account either (whichever Owner elects) (i) to cover such entire
shortfall or (ii) to cover at least all sums then due Manager under this
Agreement (to which sums Manager shall be entitled notwithstanding the
disbursement priorities set forth in Section 11.1).
ARTICLE 12. SALE OF THE PROPERTY
12.1 COOPERATION WITH SALES BROKER. If Owner executes a listing agreement
with a broker (other than Manager) for the sale or other disposition of all or
any portion of the Property, Manager shall work with such broker so that the
respective activities of Manager and broker shall be carried on with cooperation
and without undue interference with Tenants and occupants. Manager will assist
and cooperate with the broker to exhibit the Property during reasonable business
hours, subject to the rights of Tenants. Manager shall promptly refer to Owner
all inquiries and offers to purchase the Property and shall, upon direction from
Owner, promptly turn over to a purchaser all books, records, statements, reports
and other documentation maintained pursuant to this Agreement at the closing of
such purchase or at such other time as Owner may direct (subject to Manager's
right to retain copies of such materials as Manager reasonably requires).
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ARTICLE 13. COOPERATION
13.1 COOPERATION. Should any claims, demands, suits or other legal
proceedings be made or instituted by any person (other than Manager) against
Owner which arise out of any of the matters relating to this Agreement, Manager
promptly shall provide to Owner all pertinent information in Manager's
possession or control and reasonable assistance (not to include the incurrence
of any expenses by Manager or the expenditure of any funds of Manager, except as
provided in Section 17.11) in the defense or other disposition thereof. Should
any claims, demands, suits or other legal proceedings be made or instituted by
any person (other than Owner) against Manager or any affiliate of Manager which
arise out of any of the matters relating to this Agreement, Owner promptly shall
provide to Manager all pertinent information in Owner's possession or control
and reasonable assistance (not to include the incurrence of any expenses by
Owner or the expenditures of any funds of Owner, except as provided in Section,
17.10) in the defense or other disposition thereof.
ARTICLE 14. COMPENSATION
14.1 COMPENSATION. Owner agrees to pay Manager for all services performed
under this Agreement, with the exception of those services described in Articles
3 and 4, an annual fee computed and payable monthly, in arrears, within 5
business days after the end of each month, in an amount equal to 3% of Gross
Collections (as defined in Schedule B) for such prior month (except, however, as
to that portion of Gross Collections consisting of income from the parking deck
facility and income from The Buckhead Athletic Club, the fee payable to Manager
shall be 2% rather than 3%).
In the event of cancellation or termination of this Agreement, the
management fee will be prorated on a daily basis to the effective date of such
cancellation or termination.
ARTICLE 15. RENEWAL; TERMINATION
15.1 RENEWAL. Unless expressly renewed by a writing signed by both Owner
and Manager, this Agreement shall, if not sooner terminated pursuant to this
Article 15. automatically terminate upon the expiration of the initial term or
any renewed term.
15.2 TERMINATION ON SALE. This Agreement shall terminate immediately upon
the bona fide sale by Owner of all of its interest in the Property to an
unaffiliated third party. In such event, all management fees due Manager shall
be prorated through the date of dosing of such sale.
15.3 TERMINATION FOR CAUSE. (a) Owner may terminate this Agreement by
notice to Manager at any tune following the occurrence of a Manager Event of
Default and
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the failure of Manager to cure such Manager Event of Default within the grace
periods, if any, provided pursuant to Section 15.3(c). As used herein, the term
"Manager Event of Default" shall mean the occurrence of one or more of the
following:
(i) the failure by Manager to perform any of its obligations in
accordance with this Agreement;
(ii) the filing by Manager of a petition in bankruptcy, or for an
arrangement or for reorganization of Manager pursuant to the Federal
Bankruptcy Act or any similar law, federal or state, or the adjudication by
decree of a court of competent jurisdiction that Manager is a bankrupt, or
is declared insolvent, or if Manager shall make an assignment for the
benefit of creditors generally, or shall admit in writing its inability to
pay its debts generally as they become due, or shall consent to the
appointment of a receiver or receivers of all or any substantial part of
its property;
(iii) the filing of a petition in bankruptcy against Manager or for
reorganization of Manager pursuant to the Federal Bankruptcy Act or any
similar law, federal or state, and if such petition shall not be discharged
or dismissed within 90 days after the date on which such petition was
filed;
(iv) the loss of any license necessary for Manager to carry out its
obligations under this Agreement; or
(v) as to the Purchase and Sale Agreement made between The Mutual Life
Insurance Company of New York (hereinafter referred to as "Sellers") and
Owner dated August______, 1996 (hereinafter referred to as the "Purchase
Agreement"), either (x) Seller defaults under any of its obligations under
the Purchase Agreement which survive the Closing or (y) any of Seller's
representations and warranties under the Purchase Agreement (without such
representations and warranties being limited to Seller's Best Knowledge.)
prove to be untrue or misleading in any material respect (in a manner that
would have entitled Owner to terminate the Purchase Agreement had Owner
been aware of such untrue or misleading representation or warranty prior to
the closing of the sale), and in either instance same results in material
adverse consequences to Owner.
(b) Manager may terminate this Agreement at any time following the
occurrence of an Owner Event of Default and the failure of Owner to cure such
Owner Event Of Default within the grace period provided pursuant to Section
15.3(c). As used herein, the term "Owner Event of Default" shall mean the
occurrence of one or more of the following:
(i) the failure by Owner to perform any of its obligations in
accordance with this Agreement;
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(ii) the filing by Owner of a petition in bankruptcy, or for an
arrangement or for reorganization of Owner pursuant to the Federal
Bankruptcy Act or any similar law, federal or state, or the adjudication by
decree of a court of competent jurisdiction that Owner is a bankrupt, or is
declared insolvent, or if Owner shall make an assignment for the benefit of
creditors generally, or shall admit in writing its inability to pay its
debts generally as they become due, or shall consent to the appointment of
a receiver of receivers of all or any substantial part of its property;
(iii) the filing of a petition in bankruptcy against Owner or for
reorganization of Owner pursuant to the Federal Bankruptcy Act or any
similar law, federal or state, and if such petition shall not be discharged
or dismissed within 90 days after the date on which such petition was
filed;
(c) In the event of the occurrence of a Manager Event of Default or
an Owner Event of Default, the non-defaulting party shall provide the other
party notice setting forth the nature of such Event of Default, and the
defaulting party shall have (i) 5 days to cure a monetary of Default or (ii) 30
days to cure a non-monetary Event of Default (or in the case of clauses 15.3(a)
(i) and 15.3(b)(i), such longer period, not to exceed 90 days, if the default,
with due diligence cannot be cured within 30 days and the defaulting party has
commenced and is diligently prosecuting the cure to completion). Notwithstanding
the foregoing, Manager shall not be entitled to any cure period and Owner shall
be entitled to immediately terminate this Agreement if either (i) Manager has
acted in a felonious manner in connection with this Agreement or the Property or
(ii) Manager has refused or failed to comply with Owner's written directions to
Manager with regard to this Agreement or the Property (provided such written
directions are not inconsistent with the terms of this Agreement and would not,
if complied with, cause Manager to violate any applicable law).
(d) If the defaulting party fails to cure the Event of Default within
the foregoing time periods, the other party may terminate this Agreement by
notice, which termination shall be effective upon receipt of the notice or upon
the date specified in the notice. Such right of termination shall be in addition
to, and not in lieu of, all other rights and remedies of the non-defaulting
party at law or in equity, including, without limitation, an action for damages.
15.4 TERMINATION WITHOUT CAUSE. From and after the date that is 12 months
following the Commencement Date (and effective, at the earliest, on the date
which is the first anniversary of the Commencement Date), Owner may cancel this
Agreement at any time upon one month's notice to Manager or Manager may cancel
this Agreement without cause upon one month's notice to Owner. Such notice may
be given by Owner or Manager, as the case may be, at any time after the 11th
month following the Commencement Date. In such event, all management fees due
Manager shall be prorated through the date of termination.
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15.5 FINAL ACCOUNTING: COOPERATION. Upon termination of this Agreement for
any reason, Manager shall deliver to Owner the following:
(a) a final accounting reflecting the balance of income and expenses
on the Property as of the date of termination, to be delivered
within 30 days after such termination;
(b) any balance or moneys of Owner, or tenant security deposits, or
both, held by Manager with respect to the Property, to be
delivered promptly following termination, but no later than 30
days after termination; and
(c) all materials, supplies, keys, records, contracts, leases,
receipts for deposits, unpaid bills and other papers or documents
which pertain to the Property, to be delivered promptly following
termination, but no later than 30 days after termination.
Manager shall fully cooperate with Owner and any new manager in connection with
the orderly transfer of Manager's duties to such new manager, in order to
minimize as much as possible any inconvenience to Tenants and any impairment of
the operation and marketing of the Property.
ARTICLE 16. NOTICES
16.1 NOTICES. All notices, demands, consents, approvals, requests,
authorizations and reports provided for in this Agreement shall be in writing
and shall be given to Owner or Manager at their respective address set forth
below or at such other address as they may specify hereafter in accordance with
the provisions of this Section 16.1:
OWNER:
__________________________
115 Perimeter Center Place
Suite 940
Atlanta, Georgia 30346
Attn: Michael J. Molletta
Vice President
with copies to:
Bruce M. Barone, President
Overseas Partners Capital Corp.
Craig Appin House
8 Wesley Street
Hamilton HM GX Bermuda
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and:
Thomas E. Butler
Vice President-Law
Overseas Partners Capital Corp.
Craig Appin House
8 Wesley Street
Hamilton HM GX Bermuda
MANAGER: ARES, Inc.
5775-E Glenridge Drive
Suite 100 Atlanta, Georgia 30328
Attn:.: Mr. Bert Sanders Calvert
with copies to:
ARES, Inc.
One Atlantic Street
Stamford, Connecticut 06901
Attn: President
and:
ARES, Inc
One Atlantic Street
Stamford, Connecticut 06901
Attn: Victoria F. Smith, Esq.
Such notice or other communication shall be mailed either (a) by United
States registered or certified mail, return receipt requested, postage prepaid,
deposited in a United States Post Office or a depository for the receipt of mail
regularly maintained by the post office; (b) by nationally recognized overnight
courier which furnishes written evidence of receipt of delivery; or (C) by hand
against a signed receipt. Notices shall be deemed given on the date receipt is
acknowledged in the case of clause (a) above and upon receipt in the case of
clauses (b) and (C) above, or upon the first date that delivery was attempted to
be made and was refused or was unable to be delivered due to a change in
address.
ARTICLE 17. NON-ASSIGNABLE, ETC.
17.1 NO ASSIGNMENT: SUCCESSOR OWNER LIABILITY. (a) This Agreement may not
be assigned by Manager without the prior consent of Owner; provided, however,
Manager shall have the right to assign this Agreement to an affiliate of Manager
so long as Manager remains liable for the performance of all of Manager's
obligations under this Agreement. In addition, Manager may not delegate to any
third party any responsibility for
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the performance of its obligations under this Agreement without the prior
consent of Owner in each instance.
(b) This Agreement may not be assigned by Owner without the prior
consent of Manager; provided, however, Owner shall have the right to assign this
Agreement to an affiliate of Owner in conjunction with a transfer of title to
the Property to such affiliate.
17.2 PRONOUNS. The pronouns used in this Agreement referring to Owner or
Manager shall be understood and construed to apply whether Owner or Manager be
an individual copartnership, corporation or any individual or individuals doing
business under a firm or trade name.
17.3 AMENDMENTS. Except as otherwise herein provided, any and all
amendments, additions or deletions to this Agreement shall be null and void
unless approved by both parties in writing.
17.4 HEADING. All headings herein are inserted only for convenience and
ease of reference and are not to be considered in the construction or
interpretation of any provision of this Agreement.
17.5 SEVERABILITY. If any provisions of this Agreement or application to
any party or circumstances shall be determined by any court of competent
jurisdiction to be invalid and unenforceable to any extent, the remainder of
this Agreement shall not be affected thereby, and each provision hereof shall be
valid and shall be enforced to the fullest extent permitted by law.
17.6 COMPLETE AGREEMENT. This Agreement and the Schedules attached hereto
and made a part hereof shall supersede and take the place of any and all
previous agreements entered into between the parties hereto with regard to the
management and leasing of the Property.
17.7 STATUS OF MANAGER. Nothing contained herein shall be deemed to render
Manager and Owner as joint venturers or partners of each other, and neither
shall have the power to bind or obligate the other party by virtue of this
Agreement, except in accordance WITH THE TERMS OF this Agreement. Nothing
contained herein shall preclude or limit either party in connection with any
business activities which compete with the business of the Property. Manager and
Owner agree that Manager is an independent contractor; provided, however, where
Manager is expressly permitted herein to act or contract on behalf of Owner with
a third party, Manager shall do so as an agent of Owner and shall represent the
same to any such third party.
17.8 NO WAIVER. The failure by Owner or Manager to insist upon the strict
performance of any one of the terms or conditions of this Agreement or to
exercise any right, remedy, or election herein contained or permitted by law
shall not constitute or be
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construed as a waiver or relinquishment for the future of such term, condition,
right, remedy or election, but the same shall continue and remain in full force
and effect. The failure of Owner or Manager to seek redress for any violation,
or to insist upon the strict performance, of any term or condition of this
Agreement shall not prevent a subsequent act by the other party which would have
originally constituted a violation of this Agreement by such other party from
having all the force and effect of an original violation. Owner or Manager may
restrain any breach or threatened breach by the other party of any term or
condition herein contained, but the mention herein of any particular remedy
shall not preclude Owner or Manager from exercising any other remedy that it
might have against the other either at law or in equity. No term or condition of
this Agreement shall be deemed to have been waived by Owner or Manager unless
such waiver is in writing and signed by such party.
17.9 GOVERNING LAWS. This Agreement shall be governed in all respects by
the laws of the State of Georgia without giving effect to conflict of law
provisions.
17.10 INDEMNITY BY MANAGER. Except to the extent Owner is covered under any
insurance policy insuring against such risks or liabilities (or would have been
covered by an insurance policy had Owner maintained the insurance required to be
maintained by Owner under this Agreement) in either event as if such insurance
policy had a $0.00 deductible, Manager shall indemnify and hold harmless Owner
against all reasonable costs and expenses, including, without limitation,
reasonable attorneys' fees actually incurred resulting from any claims which may
be made against Owner arising out of (I) any failure of Manager to perform all
of its obligations under this Agreement, but only to the extent such failure was
caused by Manager's negligence or Manager's willful breach of any obligation
under this Agreement, (ii) any acts of Manager beyond the scope of Manager's
authority hereunder not authorized or ratified by Owner, and (iii) any
negligence or willful misconduct of Manager, its agents or employees. This
Section shall survive expiration or termination of this Agreement.
17.11 INDEMNITY BY OWNER. Except to the extent that Manager is obligated to
indemnify Owner as set forth in Section 17.10. Owner shall indemnify and hold
harmless Manager against all resonable costs and expenses, including, without
limitation, resonable attorneys' fees actually incurred resulting from any and
all claims made against manager arising out of or in connection with the
Property and its services performed under this Agreement. This Section shall
survive expiration or termination of this Agreement.
17.12 SURVIVAL The covenants contained in this Agreement which, by their
terms, require their performance after the expiration or termination of this
Agreement shall be enforceable notwithstanding the expiration or other
termination of this Agreement.
17.13 RENEGOTIATION. Owner and Manager acknowledge and agree that Owner
desires to take a more active role in day-to-day operations of its real estate
holdings, but at the time of Owner's entry into this Agreement, Owner is not in
a position to reflect in this Agreement its desired more active participation in
day-to-day real estate operations. Accordingly, Manager agrees that upon Owner's
notice that Owner desires to restructure
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this Agreement so that Owner and its employees will become more actively
involved in day-to-day operations of the Property (and, in connection therewith,
to assume some of the duties currently provided herein to be performed by
Manager), Manager agrees to cooperate with such proposed restructuring and to
negotiate the terms and conditions of such proposed restructuring in good faith.
Owner agrees that any such restructuring (including any assumption by Owner of
duties required hereunder to be performed by Manager) (i) shall not result in
reduction of the aggregate income realized by Manager under this Agreement or in
the scope of expense reimbursement provided herein to be paid to Manager, (ii)
shall not materially expand the responsibilities of Manager under this
Agreement, (iii) shall not shorten the term of this Agreement, and (iv) shall
not affect Manager's right to receive leasing commissions even if Owner becomes
directly involved in negotiating Leases.
17.14 ASSISTANCE WITH AND SUBORDINATION TO FINANCING. Manager will
cooperate with and assist Owner in the closing of any project financing obtained
by Owner, including, without limitation, the coordination of tenant estoppels
and subordination, non-disturbance and attornment agreements. At the request of
Owner, Manager will from time to time execute appropriate documentation
sufficient to subordinate this Agreement, and the rights of Manager hereunder,
to any bonafide third party mortgage financing now or hereafter obtained by
Owner with regard to the Property.
IN WITNESS WHEREOF, the parties hereby have executed this Agreement as of
the day and year first above written.
OWNER:
MANAGER: ARES, INC., a Connecticut corporation
By:
__________________________________________________
Title:
[CORPORATE SEAL]
-28-
<PAGE> 157
SCHEDULE A
PROPERTY
<PAGE> 158
SCHEDULE B
GROSS COLLECTIONS DEFINITION
As used in this Agreement, the term "Gross Collections" shall mean the
gross amount of all cash payments received by Manager or Owner for or with
respect to the use or occupancy of space in the Property, including, without
limitation, all rent, parking or garage receipts, receipts arising out of common
area maintenance charges, escalations, Tenant reimbursements for operating
expenses, and percentage or overage rent; provided, however, Gross Collections
shall not include the following:
(a) any amounts received as security deposits (except to the extent
applied to a Tenant's obligations);
(b) any amounts received in the nature of real estate or other tax
refunds;
(c) any amounts paid by any Tenant representing;
(i) proceeds from fire or other casualty losses;
(ii) amounts separately enumerated in a Lease or Tenant work letter
reimbursing landlord for the cost of capital improvements,
remodeling, and Tenant changes, including any overhead or
interest factor payable by Tenants in connection with such
reimbursement;
(iii)amortization of above-standard Tenant work and Tenant
allowances;
(iv) any reimbursement of expenses incurred by landlord on behalf of
Tenant in enforcing Lease provisions that permit landlord to
correct conditions at Tenants expense; and
(v) payments in consideration of the termination or cancellation of a
Lease, unless otherwise agreed to in writing by Owner.
(d) any condemnation or insurance proceeds;
(e) proceeds of any sale or financing of the Property or any portion
thereof;
(f) amounts rebated or refunded due to overpayments by Tenants; and
(g) any amounts which otherwise would be included in Gross Collections but
which constitute sums to which Seller is entitled pursuant to the
proration provisions of the Purchase Agreement (as defined in Section
15.3(a)(v)).
B-1
<PAGE> 159
SCHEDULE C
LEASING COMMISSION SCHEDULE
1. Leasing Commissions with Manager as Sole Procuring Broker. In
circumstances, from and after the Commencement Date and prior to the
expiration or termination of this Agreement, in which Manager is the sole
procuring broker, Owner shall pay to Manager leasing commissions in
accordance with the following schedule:
A. For Leases to Tenants who are not in occupancy at the Property at the
time the Lease is executed ("New Tenants"), Manager shall be paid (I)
as to Leases having a term of 3 years or more (without regard to
renewal or extension options and as to Leases with early termination
provisions, treating such Leases as if they expire on the date whereon
early termination is permitted), a procurement fee equal to one
average month's Base Rent, and (ii) a commission equal to 4% of the
Base Rent less the procurement fee. For purposes hereof "one average
month's Base Rent" shall be determined by dividing the aggregate Base
Rent for the entire term of the Lease by the number of months in such
term.
B. For expansion or additional Space leased to existing Tenants
regardless of whether such Space is taken pursuant to an option
contained in the Lease, Manager shall be paid a commission equal to 2%
of the Base Rent.
C. For extension or renewal of an existing Lease regardless of whether
such extension or renewal has been effected in accordance with an
option contained in the Lease, Manager shall be paid a commission
equal to 2% of the Base Rent.
2. Leasing Commissions with Manager Not as Sole Procuring Broker. In
circumstances, from and after the Commencement Date and prior to the
expiration or termination of this Agreement, in which there is a procuring
broker other than or in addition to Manager, Owner shall pay to Manager
leasing commissions in accordance with the following schedule (in addition
to the commission due from Owner to such other broker):
A. For leases to New Tenants, Manager shall be paid (i) as to Leases
having a term of 3 years or more (without regard to renewal or
extension options and as to Leases with early termination provisions,
treating such Leases as if they expire on the date whereon early
termination is permitted), a procurement fee equal to one-half of one
average month's Base Rent, and (ii) a commission equal to 2% of the
Base Rent less the procurement fee.
C-1
<PAGE> 160
B. For expansion or additional Space leased to existing Tenants
regardless of whether such Space is taken pursuant to an option
contained in the Lease, Manager shall be paid a commission equal to 1%
of the Base Rent applicable to such expansion or additional space.
C. For extension or renewal of an existing Lease regardless of whether
such extension or renewal has been effected in accordance with an
option contained in the Lease, Manager shall be paid a commission
equal to 150 of the Base Rent for the term of such extension or
renewal.
The compensation due the procuring broker will be made pursuant to a
separate agreement between Owner and the procuring broker. Owner shall be
presented with the procuring broker's invoice and shall pay procuring
broker directly. Unless otherwise authorized by Owner, such compensation
shall not exceed the market commission which would be payable to a
procuring broker with respect to such Lease in the geographic area in which
the Property is located. Notwithstanding the foregoing, in the event Owner
elects to participate in the ARES exclusive program, it will pay the full
broker's commission on the first business day following the execution of a
new Lease provided that the Owner has received a fullyexecuted commission
agreement and an invoice for the commission.
Notwithstanding any other provision hereof to the contrary, no commission
shall be due or payable pursuant to Section 1.B. or C or Section 2.B. or C
above unless the extension, renewal expansion or leasing of additional
space is exercised or effected during the period from and after the
Commencement Date and prior to the expiration or termination of this
Agreement.
3. Definitions.
A. "Base Rent" shall mean the amount payable to Owner by a Tenant,
including automatic increases and payments on account of utilities,
taxes, insurance premiums and operating expenses that are fixed in a
dollar amount or that are capable of being calculated to an exact
dollar amount at the time the lease is executed, but excluding (i)
other increases such as cost of living and CPI adjustment which cannot
be so calculated, (ii) any amounts for or attributable to
reimbursables, percentage rents, security deposits, insurance premiums
parking lot or garage income and items of a similar nature, and (iii)
the amount, if any, of any amortized expense contained in a Tenant's
rental payment.
B. "Term" shall mean the length of time over a Lease a Tenant is
contractually obligated to make payments where there is no unilateral
right to terminate on the part of a Tenant; provided, however, that
for purposes of calculating commissions and procurement fees under
Sections 1 and 2 above, any Lease having a term in excess of 10 years
shall be deemed to have a term of only 10
C-2
<PAGE> 161
years. For example, a 5-year Lease in which the Tenant may exercise a
termination right after the third year shall be considered a 3-year
Term for the purposes of calculating a leasing commission. However, if
the Tenant does not elect to so terminate such Lease, a leasing
commission covering such post-termination period shall be due and paid
to Manager as and when such right to terminate expires or is waived by
the Tenant, but only as if the failure to terminate constituted a
renewal and extension for the balance of the initial term for purposes
of calculating the amount of the commission due. If a Tenant
compensates Owner monetarily for the exercise of a termination right
(by way of example, a termination payment), then the leasing
commission shall be adjusted based on the amount of monetary
compensation so received by Owner using the same rates set forth above
and same shall be deemed earned by Manager.
4. Payment Schedule. Except as specifically provided in this Agreement to the
contrary, Manager shall earn a leasing commission on any and all Leases
consummated for Space in accordance with this leasing commission schedule.
Leasing commissions shall be deemed earned under this Agreement and Owner
shall pay leasing commissions for executed Leases (or exercised options) as
follows:
A. 50% of the leasing commission for a New Lease shall be paid upon
execution of a Lease by Owner and Tenant, and the remaining 50% of the
leasing commission for a New Lease earned shall be paid upon the
earliest to occur of the following (i) the commencement of the Term of
the Lease, (ii) the payment to Owner of fixed or Base Rent for the
first month of the Term, and (iii) the taking of occupancy of the
Space by the Tenant.
B. 100% of the leasing commission for the leasing of expansion or
additional Space to an existing Tenant or the extension or renewal of
an existing Lease shall be paid after the fixed or Base Rent for the
first month of the Term of the leasing of the expansion or additional
Space or the Term of the extension or renewal is paid to Owner.
C-3
<PAGE> 162
SCHEDULE D
MANAGER'S EMPLOYEES
<TABLE>
<CAPTION>
TITLE EMPLOYEE
----- --------
<S> <C> <C>
1. Property Manager Blackstock, Marti
2. Asst. Prop. Mgr. Shepherd, Whitney
3. Asst. Prop. Mgr. Huber, Lillian
4. AA - Jr (A/P, Filing) Vollnad, Dawn
5. AA - Jr (Recep.) Open - to be filled
6. AA - Sr (Off. Mgr.) Hawkes, Jean
7. AA - Sr Rudder, Lisa
8. Acct. Palmer, Dianne
9 Eng. - Sr Broscoe, Larry
10. Eng. - Sr Wallace, Preston
11. Eng. - Sr Payne, Mike
12. Eng. - Sr Sellers, Thomas
13. Eng. - Exp Blackwell, Andrea
14. Eng. - Exp Johnson, Howard
15. Eng. - Exp Donald, Michael
16. Eng. - Jr Harlan, Sandra
17. Eng. - Jr Allen, Bertie
18. Eng. - JR - Maint King, Michael
</TABLE>
D-1
<PAGE> 163
SCHEDULE E
COMPENSATION FOR CONSTRUCTION MANAGEMENT AND
PROJECT MANAGEMENT SERVICES
A. Construction Supervisory Services with Manager Acting as Construction
Manager. In circumstances in which Manager is acting as the construction
manager (i.e., acting as an agent on behalf of Owner in the selection,
negotiation and procurement of all professions, trades and miscellaneous
services in order to professionally plan, implement and execute a Property
construction project (hereinafter referred to as a CM Project")), Manager
shall be compensated by Owner as follows:
1. Manager shall receive a fee of 5% of all CM Project hard and soft
costs.
2. Manager's Project Manager shall be billed to the project for
hours directly spent on the project at the rate of $60.00/hour.
Manager's Project Superintendent and other approved project staff
shall be billed at a billing rate established in the Approved
Operating Budget and Capital Budget then in effect.
3. Billing rates for project staff shall include direct payroll
expense, standard fringe benefits and payroll taxes, local travel
and tolls, usual and customary local phone charges.
4. Owner shall reimburse Manager for all construction management
reimbursable expenses, which may include, but are not limited to,
the following items:
a. the proportion of reasonable transportation (other than
normal commutation), traveling, automobiles and automobile
allowances, and hotel expenses of Manager or of its
employees incurred in the discharge of duties connected with
the CM Project;
b. direct net cost of all materials, supplies and equipment
incorporated in the CM Project, including costs of
transportation and storage thereof;
c. direct net cost, including transportation and maintenance
and exclusive of refundable deposits, of all materials,
supplies, equipment, temporary facilities and hand tools not
owned by the workmen, which are employed or consigned in the
E-1
<PAGE> 164
performance of the CM Project, and cost less salvage value
or reasonable rental value, if less, on such items used but
not consumed which remain the property of Manager;
d. rental charges of all necessary machinery and equipment used
at the Property in connection with the CM Project, including
installation, repairs and replacements, dismantling, removal
costs of lubrication, transportation and delivery costs
thereof;
e. sales, use, gross receipts or similar taxes related to the
CM Project imposed by any governmental authority, and for
which Manager is liable as the Owner's agent;
f. any permit fees, licenses, tests, royalties, damages for
infringement of patents and costs of defending suits
therefor;
g. losses, expenses or damages to the extent not compensated by
insurance or otherwise (including settlement made with the
approval of Owner) actually sustained or incurred by the
Manager in connection with the CM Project, excluding losses,
expenses or damages caused by the gross negligence or
willful misconduct of Manager,
h. the cost of corrective work;
i. expenses such as telegrams, long-distance telephone calls,
telephone service, expressage and similar petty cash items
in connection with the CM Project which are reasonably
incurred in connection with Manager's performance of
construction management services;
j. cost of removal of all debris;
k. costs incurred due to an emergency affecting the safety of
persons and property;
l. all reasonable out-of-pocket costs directly and necessarily
incurred in the performance of the CM Project and not
included in the construction management fee as provided
above;
m. the cost of the insurance required to be carried by Manager
in connection with the CM Project;
E-2
<PAGE> 165
n. the cost of payment and/or performance bonds required to be
carried by Manager; and
o. the costs associated with elevator operators, operating
engineers, teamsters and all other standby trades.
B. Construction Supervisory Services with Manager acting as Project Manager.
In circumstances in which Manager is acting as the Project Manager (i.e.,
acting as the representative of Owner in the selection, negotiation and
procurement of the professionals and of the general contractor or
construction manager in order to professionally plan, implement and execute
a Property construction project (hereinafter referred to as a "PM
Project.)), Manager shall be compensated by Owner as follows:
1. Manager shall receive a fee in the amount of 5% of all PM Project
hard and soft costs.
2. Owner shall reimburse Manager for all project management
reimbursable expenses which may include, but are not limited to
(1) the proportion of reasonable transportation (other than
normal commutation), traveling, automobiles and automobile
allowances, and hotel expenses of Manager or of its employees
incurred in the discharge of duties connected with the PM
Project; (2) expenses such as telegrams, long distance telephone
calls, telephone service expressage and similar petty cash items
in connection with the PM Project which are reasonably incurred
in connection with Manager's performance of project management
services; (3) all reasonable out of pocket costs directly and
necessarily incurred by Manager in the performance of the PM
Project; and (4) any consulting fees which may be required to be
paid relative to any special or unique situations which are
beyond the scope of customary project management services.
Notwithstanding the above, Construction Management and project management
fees for any project with an estimated value in excess of $1,000,000 will
be negotiated in advance in good faith and shall be at market rates.
E-3
<PAGE> 166
EXHIBIT "P"
TENANTS FROM WHOM TENANT ESTOPPELS ARE REQUIRED
I. Each of the following tenants:
<TABLE>
<CAPTION>
TENANT BUILDING
------ --------
<S> <C>
KW BellSouth(1) North
PeopleSoft, Inc. North
Columbia/HCA(2) North
Industrial Developments East, South
Morris Manning East
Smith Gambrell East
Robinson-Humphrey East, South
Smith, Howard, Ajax South
Sedgwick James South
The Buckhead Club East
Sterling Software
(Southern) Inc. North
</TABLE>
II. From among the following tenants, Estoppel Certificates totaling a minimum
of 80% of the rentable square footage leased by the following tenants
<TABLE>
<CAPTION>
TENANT BUILDING
------ --------
<S> <C>
Beckman Instruments North
Bankers Trust North
Moore Copies East
EBC Enterprises East
Lamberth Bonapfel East
MONY East
Small White & Marani East
SouthTrust of Georgia East
Montage & Caldwell North,East
Freebairn East
Milliman & Robertson East
Gallup, Inc. South
</TABLE>
- ----------
(1) Two estoppels: one as a tenant and one as a subtenant
(2) A subtenant only
<PAGE> 167
EXHIBIT "O"
ESTOPPEL LETTER OF DEPARTMENT OF TRANSPORTATION
ESTOPPEL STATEMENT
TO: The Mutual Life Insurance Company of New York and its successors in title
to the property affected by a certain Agreement by and between R-H
Associates Bldg. II Corp., Atlanta Financial Center Associates,
Robinson-Humphrey Properties, Inc. and Department of Transportation of
State of Georgia dated July 18, 1985, and recorded in Deed Book 9618, page
145, Fulton County, Georgia Records, as amended by a certain Amendment to
Agreement dated as of July 18, 1985, by and between the same parties, and
recorded in Deed Book 10290, page 289, Fulton County, Georgia Records
(collectively, the "Agreement")
The undersigned, pursuant to Section 9.17 of the Agreement, hereby
certifies as follows:
1. The Agreement has not been amended except as set forth above, and the
Agreement is in full force and effect.
2. The undersigned has not given any notice of any default by any other
party under this Agreement which has not been cured, and, to the best
of the undersigned's knowledge and belief, no default exists under the
Agreement, and no circumstance exists which, but for the giving of
notice or the passage of time, or both, would constitute a default
under the Agreement.
3. All "Work", as defined in the Agreement, has been completed
satisfactorily, the undersigned has no outstanding claims with respect
to any of such Work and the undersigned has no knowledge of any
deficiencies or defects in such WORK.
4. All gifts required to be made by Article m of the Agreement have been
made.
The foregoing may be relied upon by, and shall inure to the benefit of, the
addressees set forth above and their successors, assigns and successors in title
and any
<PAGE> 168
mortgagees of any of the foregoing, and shall be binding upon the undersigned
and its successors and assigns.
Dated this____________ day of ___________, 1996.
DEPARTMENT OF TRANSPORTATION
OF STATE OF GEORGIA
By:
----------------------------------------------
Name:
--------------------------------------------
Title:
-------------------------------------------
-2-
<PAGE> 1
EXHIBIT 10.qq
BILL OF SALE AND ASSIGNMENT
THIS BILL OF SALE AND ASSIGNMENT (hereinafter referred to as this
"AGREEMENT"), made and entered into as of the 30th day of August, 1996, by and
between THE MUTUAL LIFE INSURANCE COMPANY OF NEW YORK, a New York corporation
(hereinafter referred to as "SELLER"), and OVERSEAS PARTNERS (AFC), INC., a
Georgia corporation (hereinafter referred to as "PURCHASER"),
WITNESSETH:
WHEREAS, Seller is the owner of certain improved real property (hereinafter
referred to as the "PROPERTY") located in the City of Atlanta, County of
Fulton, State of Georgia, as more particularly described in EXHIBIT "A"
attached hereto and by this reference made a part hereof; and
WHEREAS, Seller has on even date conveyed the Property to Purchaser, and in
connection therewith Seller wishes hereby to transfer and assign to Purchaser
all of Seller's right, title and interest in and to certain personal property
related to the Property as more particularly described below.
NOW, THEREFORE, in consideration of the sum of Ten Dollars ($10.00) and
other good and valuable consideration, in hand paid by Purchaser to Seller, the
receipt and sufficiency of which are hereby acknowledged, Seller and Purchaser
hereby covenant and agree as follows:
1. PERSONALTY. Seller hereby grants, bargains, sells, conveys, transfers
and delivers to Purchaser, if and to the extent transferable, all personal
tangible property owned by Seller and which is located on and relates to the
design, construction, ownership, use, management, leasing, maintenance, service
or operation of the Property, including, without limitation, any plans,
specifications, drawings, books, records, lease files, licenses, permits,
certificates of occupancy, keys, office furniture, equipment and supplies, and
janitorial, service, repair, maintenance equipment, machinery and supplies
(hereinafter referred to collectively as the "PERSONALTY").
2. INTANGIBLES. Seller hereby grants, bargains, sells, conveys, transfers
and delivers to Purchaser, if and to the extent transferable, any rights which
Seller may have in the following (hereinafter referred to collectively as the
"INTANGIBLES"): any intangible assets relating to the Property or the
Personalty,, including, without limitation, the name "Atlanta Financial Center"
(excluding, however, (a) any tenant leases for space in the Property (which
tenant leases are being assigned by Seller to Purchaser by separate instrument
of even date herewith), (b) all rights of Seller under or pursuant to that
<PAGE> 2
certain Purchase and Sale Agreement entered into between Seller and Overseas
Partners Capital Corp. dated August 9, 1996, as assigned by Overseas Partners
Capital Corp. to Purchaser by instrument dated of even date herewith, concerning
the purchase and sale of the Property, and (c) any claims or causes of action
Seller may have against (i) any prior direct or indirect owner of all or any
portion of the Property or the Personalty, (ii) any prior tenants of the
Property, (iii) any current or prior manager or leasing agent of the Property,
and (iv) PPG Industries, Inc., Sunbelt Glass & Aluminum, Inc., The Beck Company
and Pace Construction Company, and their affiliates, relating in any way to the
spandrel glass in the portion of the Property known as the "North Tower").
3. WARRANTY OF TITLE. Seller hereby warrants and will forever defend the
right and title to the Personalty and the Intangibles against, but only against,
the lawful claims of all persons owning, holding or claiming by, through or
under Seller, except for claims arising under or by virtue of the matters
described on EXHIBIT "B" attached hereto and by this reference made a part
hereof.
4. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and inure
to the benefit of Purchaser and Seller and their respective heirs, legal
representatives, successors and assigns.
IN WITNESS WHEREOF, Seller has executed this Agreement under seal as of the
date first above written.
THE MUTUAL LIFE INSURANCE COMPANY
OF NEW YORK, a New York corporation
By:/s/ Bruce C. Fernald
--------------------------------
Bruce C. Fernald
Senior Vice President
ARES Realty Capital, Inc.
Authorized Signatory
[CORPORATE SEAL]
2
<PAGE> 3
LEGAL DESCRIPTION OF LAND
PHASE I
ALL THAT TRACT OR PARCEL OF LAND lying and being in Land Lots 45 and 62, 17th
District, City of Atlanta, Fulton County, Georgia and being more particularly
described as follows:
TO FIND THE TRUE POINT OF BEGINNING, begin at the point formed by the
intersection of the northernmost right-of-way line of Highland Drive (a 50-foot
right-of-way) with the easternmost right-of-way line of Peachtree Road (a
variable right-of-way being 80 feet at this point) and proceed thence in a
northerly direction along the aforesaid easternmost right-of-way line, following
the curvature thereof, a distance of 365.1 feet to an iron pin which is THE TRUE
POINT OF BEGINNING.
FROM THE TRUE POINT OF BEGINNING THUS ESTABLISHED proceed thence along the
aforesaid easternmost right-of-way line north 13(degree)43'08" east a distance
of 37.39 feet to a point on the aforesaid easternmost right-of-way line; proceed
thence along the aforesaid easternmost right-of-way line along an arc of a curve
to the right, an arc distance of 179.12 feet to a point, said arc being
subtended by a chord 178.99 feet in length and bearing north 20(degree)26'46"
east; proceed thence along the aforesaid easternmost right-of-way line north
26(degree)16'11" east a distance of 48.21 feet to a point on the aforesaid
easternmost right-of-way line; proceed thence along the aforesaid easternmost
right-of-way line north 28(degree)17'14" east 48.18 feet to a point on the
aforesaid easternmost right-of-way line; proceed thence along the aforesaid
easternmost right-of-way line north 30(degree)11'09" east a distance of 48.15
feet to a point on the aforesaid easternmost right-of-way line; proceed thence
north 32(degree)20'44" east a distance of 57.74 feet to a point on the aforesaid
easternmost right-of-way line; proceed thence along the aforesaid easternmost
right-of-way line north 55(degree)03'02" east a distance of 8.44 feet to a point
on the aforesaid easternmost right-of-way line; proceed thence along an arc of a
curve to the left, departing from the aforesaid easternmost right-of-way line,
an arc distance of 178.88 feet, said arc being subtended by a chord 178.87 feet
in length and bearing south 32(degree)44'02" east; proceed thence along an arc
of a curve to the left, an arc distance of 23.09 feet to a point, said arc being
subtended by a chord 23.09 feet in length and bearing south 31(degree)15'01"
east; proceed thence south 31(degree)11'25" west, a distance of 26.49 feet to a
point; proceed thence south 81(degree)18'35" east, a distance of 35.04 feet to a
point; proceed thence south 14(degree)08'05" east, a distance of 140.56 feet to
a point; proceed thence south 81(degree)21'18" east, a distance of 0.36 feet to
a point; proceed thence north 31(degree)11'25" east, a distance of 366.62 feet
to a point; proceed thence south 74(degree)31'03" east, a distance of 10.04 feet
to a point; proceed thence north 13(degree)51'45" west, a distance of 261.95
feet to a point; proceed thence north 48(degree)03'44" west, a distance of 95.71
feet to a point located on the aforesaid easternmost right-of-way line of
Peachtree Road; proceed thence along the aforesaid easternmost right-of-way line
north 39(degree)15'08" east, a distance of 142.28 feet to a point; proceed
thence south 13(degree)51'45" east, a distance of 1,104.35 feet to a point
located
EXHIBIT 'A'
<PAGE> 4
on the Land Lot line common to Land Lots 45 and 46 of the 17th District of
Fulton County, Georgia; proceed thence along the said common Land Lot line north
89(degree)37'06" west, a distance of 363.25 feet; proceed thence, departing from
said common Land Lot line, north 12(degree)49'09" west, a distance of 218.41
feet to a point; proceed thence north 79(degree)10'45" west, a distance of
356.72 feet to a point located on the aforesaid easternmost right-of-way line of
Peachtree Road, said point being the TRUE POINT OF BEGINNING, said tract or
parcel of land being more particularly shown as "Phase I" on that certain survey
by Mallett & Associates bearing the seal and certification of Michael F. Lawler,
Georgia Registered Land Surveyor No. 1946, prepared for Overseas Partners
Capital Corp., dated December 20, 1993, last revised August 27, 1996, and
bearing file no. 93153, which survey is incorporated herein by this reference.
LESS AND EXCEPT that portion of the above property conveyed by the following:
(1) Limited Warranty Deed from R-H Building Partners, Ltd., a Georgia limited
partnership, as to an undivided 50% interest and The Mutual Life Insurance
Company of New York, a New York corporation, as to an undivided 50% interest,
together doing business as Atlanta Financial Center Associates, a Georgia Joint
Venture to The Department of Transportation of the State of Georgia, dated
December 22, 1986, filed for record December 23, 1986 at 1:41 p.m., recorded in
Deed Book 10513, Page 108, Records of Fulton County, Georgia
(2) Limited Warranty Deed from Atlanta Financial Center Associates, a Georgia
joint venture composed of The Mutual Life Insurance Company of New York and R-H
Building Partners, Ltd., to the Department of Transportation of the State of
Georgia, dated April 4, 1989, filed for record July 19, 1989 at 9:30 a.m.,
recorded in Deed Book 12667, Page 115, aforesaid Records.
TOGETHER WITH all easements appurtenant to the above property created by the
following:
(a) Parking Deck and Easement Agreement by and among Michael C. Carlos, George
C. Carlos, Andrew C. Carlos, and R-H Building Partners, Ltd., dated July 15,
1981, recorded in Deed Book 7903, Page 165, aforesaid Records; as amended by
that certain Amendment of Parking Deck and Easement Agreement, dated July 15,
1981, recorded in Deed Book 7903, Page 385, aforesaid Records (said Amendment
having been terminated by Agreement dated September 20, 1982, recorded in Deed
Book 8255, Page 475, aforesaid Records); as further amended by Second Amendment
to Parking Deck and Easement Agreement, dated July 18, 1985, recorded in Deed
Book 9618, Page 37, aforesaid Records; as further amended by that certain Third
Amendment to Parking Deck and Easement Agreement, dated as of July 18, 1985,
recorded in Deed Book 10290, Page 389, aforesaid Records; as further amended by
that certain Declaration of Release dated December 22, 1986, recorded in Deed
Book 10561, Page 358, aforesaid Records; as further amended by that certain
Fourth Amendment to Parking Deck and Easement Agreement, dated as of August 11,
1988, recorded in Deed Book 11790, Page 76, aforesaid Records.
2
EXHIBIT 'A'
<PAGE> 5
(b) Reciprocal Easement Agreement by and among Robinson-Humphrey Properties,
Inc., R-H Associates Bldg. II Corp. and Atlanta Financial Center Associates,
dated July 18, 1985, recorded in Deed Book 9618, Page 68, aforesaid Records; as
amended by that certain First Amendment to Reciprocal Easement Agreement, dated
as of July 18, 1985, recorded in Deed Book 10290, Page 411, aforesaid Records;
as further amended by that certain Declaration of Release, dated December 22,
1986, recorded in Deed Book 10561, Page 358, aforesaid Records; as further
amended by that certain Second Amendment to Reciprocal Easement Agreement, dated
as of August 11, 1988, recorded in Deed Book 11790, Page 69, aforesaid Records.
(c) Agreement by and among R-H Associates Bldg. II Corp., Atlanta Financial
Center Associates, Robinson-Humphrey Properties, Inc. and the Department of
Transportation of the State of Georgia, dated July 18, 1985, recorded in Deed
Book 9618, Page 145, aforesaid Records; as amended by that certain Amendment to
Agreement dated as of July 18, 1985, recorded in Deed Book 10290, page 289,
aforesaid Records; the interest of R-H Associates Bldg. II Corp. thereunder
having been assigned to Two Atlanta Financial Center Associates by that certain
Assignment and Assumption (DOT Agreements), dated July 28, 1987, recorded in
Deed Book 10973, Page 179, aforesaid Records.
(d) Agreement Regarding Georgia 400 Extension, by and among R-H Associates Bldg.
II Corp., Robinson-Humphrey Properties, Inc., Atlanta Financial Center
Associates, MONY Mortgage Investors, and The Mutual Life Insurance Company of
New York dated July 18, 1985, recorded in Deed Book 9623, Page 75, aforesaid
Records; as amended by that certain First Amendment to Agreement Regarding
Georgia Highway 400 Extension, dated as of July 18, 1985, recorded in Deed Book
10290, Page 419, aforesaid Records; the interest of R-H Associates Bldg. II
Corp. thereunder having been assigned to Two Atlanta Financial Center Associates
by that certain Assignment and Assumption (DOT Agreements) dated July 28, 1987,
recorded in Deed Book 10973, Page 179, aforesaid Records.
(e) Limited Warranty Deed from R-H Building Partners, Ltd. a Georgia limited
partnership, as to an undivided 50% interest and The Mutual Life Insurance
Company of New York a New York corporation, as to an undivided 50% interest,
together doing business as Atlanta Financial Center Associates, a Georgia Joint
Venture to The Department of Transportation of the State of Georgia, dated
December 22, 1986, filed for record December 23, 1986 at 1:41 p.m., recorded in
Deed Book 10513, Page 108, aforesaid Records.
(f) Limited Warranty Deed from Atlanta Financial Center Associates, a Georgia
joint venture composed of The Mutual Life Insurance Company of New York and R-H
Building Partners, Ltd., to the Department of Transportation of the State of
Georgia, dated April 4, 1989, filed for record July 19, 1989 at 9:30 a.m.,
recorded in Deed Book 12667, Page 115, aforesaid Records.
3
EXHIBIT 'A'
<PAGE> 6
PHASE II
ALL THAT TRACT OR PARCEL OF LAND lying and being in Land Lot 45, 17th District,
City of Atlanta, Fulton County, Georgia and being more particularly described as
follows:
TO FIND THE TRUE POINT OF BEGINNING begin at a point formed by the intersection
of the easternmost right-of-way line of Peachtree Road (a variable right-of-way
being 80 feet at this point) with the northernmost right-of-way line of Highland
Drive (a 50-foot right-of-way) and proceed thence in a northeasterly direction
along the aforesaid easternmost right-of-way line of Peachtree Road a distance
of 365.1 feet to a point; proceed thence in a northeasterly direction along the
aforesaid easternmost right-of-way line north 13(degree)43'08" east a distance
of 37.39 feet to a point; proceed thence along the aforesaid easternmost
right-of-way line, following the curvature thereof to the right, an arc distance
of 179.12 feet to a point, said arc being subtended by a chord 178.99 feet in
length and bearing north 20(degree)26'46" east; proceed thence in a
northeasterly direction along the aforesaid easternmost right-of-way line north
26(degree)16'11" east a distance of 48.21 feet to a point; proceed thence in a
northeasterly direction along the aforesaid easternmost right-of-way line north
28(degree)17'14" east a distance of 48.18 feet to a point; proceed thence in a
northeasterly direction along the aforesaid easternmost right-of-way line north
30(degree)11'09" east a distance of 48.15 feet to a point; proceed thence in a
northeasterly direction along the aforesaid easternmost right-of-way line north
32(degree)20'44" east a distance of 57.74 feet to a point; proceed thence in a
northeasterly direction along the aforesaid easternmost right-of-way line north
55(degree)03'02" east a distance of 8.44 feet to a point, said point being THE
TRUE POINT OF BEGINNING.
FROM THE TRUE POINT OF BEGINNING THUS ESTABLISHED proceed thence along the
aforesaid easternmost right-of-way line north 55(degree)32'07" east a distance
of 18.02 feet to a point; proceed thence in a southeasterly direction along the
aforesaid easterly right-of-way line, following the curvature thereof to the
right, an arc distance of 7.77 feet to a point, said arc being subtended by a
chord 7.77 feet in length and bearing south 31(degree)52'33" east; thence leave
said right-of-way line and proceed in a southeasterly direction along the arc of
a curve to the left, an arc distance of 171.77 feet to a point, said arc being
subtended by a chord 171.77 feet in length and bearing south 32(degree)46'15"
east; proceed thence in a southeasterly direction along the arc of a curve to
the left, an arc distance of 14.05 feet to a point, said arc being subtended-by
a chord 14.05 feet in length and bearing south 31(degree)08'45" east; proceed
thence north 31(degree)11'25" east a distance of 193.49 feet to a point; proceed
thence north 31(degree)11'25" east a distance of 3.77 feet to a point; proceed
thence south 74(degree)31'03" east a distance of 62.79 feet to a point; proceed
thence north 76(degree)11'25" east a distance of 74.14 feet to a point; proceed
thence south 13(degree)51'45" east a distance of 41.61 feet; proceed thence
north 74(degree)31'03" west a distance of 10.04 feet to a point; proceed thence
south 31(degree)11'25" west a distance of 366.62 feet to a point; proceed
thence north 81(degree)21'18" west a distance of 0.36 feet to a point; proceed
thence north 14(degree)08'05" west a distance of 140.56 feet to a point;
proceed thence north 81(degree)18'35" west a distance of 35.04 feet to a point;
proceed thence north 31(degree)11'25" east a distance of 26.49 feet to a point;
proceed thence along the arc of a curve to the right an arc distance of 23.09
feet to a point, said arc being subtended by a chord 23.09 feet in length and
bearing north 31(degree)15'01" west; proceed thence
4
EXHIBIT 'A'
<PAGE> 7
along an arc of a curve to the right an arc distance of 178.88 feet to a point,
said arc being subtended by a chord 178.87 feet in length and bearing north
32(degree)44'02" west, said point being THE TRUE POINT OF BEGINNING, said tract
or parcel of Land being more particularly shown as "Phase II" on that certain
survey by Mallett & Associates, bearing the seal and certification of Michael F.
Lawler, Georgia Registered Land Surveyor No. 1946, prepared for Overseas
Partners Capital Corp., dated December 20, 1993, last revised August 27, 1996,
and bearing file no. 93153, which survey is incorporated herein by this
reference.
LESS AND EXCEPT that portion of the above property conveyed by the following:
(1) Limited Warranty Deed from R-H Associates Bldg. II Corp. to the Department
of Transportation, dated December 22, 1986, recorded in Deed Book 10513, Page
127, aforesaid Records.
(2) Limited Warranty Deed from Two Atlanta Financial Center Associates, a
Georgia joint venture composed of The Mutual Life Insurance Company of New York
and R-H Associates Bldg. II Corp., to the Department of Transportation of the
State of Georgia, dated April 4, 1989, filed for record July 19, 1989 at 9:30
a.m., recorded in Deed Book 12667, Page 141, aforesaid Records.
TOGETHER WITH all easements appurtenant to the above property created by the
following:
(a) Parking Deck and Easement Agreement by and among Michael C Carlos, George C.
Carlos, Andrew C. Carlos, and R-H Building Partners, Ltd., dated July 15, 1981,
recorded in Deed Book 7903, Page 165, aforesaid Records; as amended by that
certain Amendment of Parking Deck and Easement Agreement, dated July 15, 1981,
recorded in Deed Book 7903, Page 385, aforesaid Records (said Amendment having
been terminated by Agreement dated September 20, 1982, recorded in Deed Book
8255, Page 475, aforesaid Records); as further amended by Second Amendment to
Parking Deck and Easement Agreement, dated July 18, 1985, recorded in Deed Book
9618, Page 37, aforesaid Records; as further amended by that certain Third
Amendment to Parking Deck and Easement Agreement, dated as of July 18, 1985,
recorded in Deed Book 10290, Page 389, aforesaid Records; as further amended by
that certain Declaration of Release dated December 22, 1986, recorded in Deed
Book 10561, Page 358, aforesaid Records; as further amended by that certain
Fourth Amendment to Parking Deck and Easement Agreement, dated as of August 11,
1988, recorded in Deed Book 11790, Page 76, aforesaid Records.
(b) Reciprocal Easement Agreement by and among Robinson-Humphrey Properties,
Inc., R-H Associates Bldg. II Corp. and Atlanta Financial Center Associates,
dated July 18, 1985, recorded in Deed Book 9618, Page 68, aforesaid Records; as
amended by that certain First Amendment to Reciprocal Easement Agreement, dated
as of July 18, 1985, recorded in Deed Book 10290, Page 411, aforesaid Records;
as further amended by that certain Declaration of Release, dated December 22,
1986, recorded in Deed Book 10561, Page 358, aforesaid Records; as further
amended by that certain Second Amendment to Reciprocal
5
EXHIBIT 'A'
<PAGE> 8
Easement Agreement, dated as of August 11, 1988, recorded in Deed Book 11790,
Page 69, aforesaid Records.
(c) Agreement by and among R-H Associates Bldg. II Corp., Atlanta Financial
Center Associates, Robinson-Humphrey Properties, Inc. and the Department of
Transportation of the State of Georgia dated July 18, 1985, recorded in Deed
Book 9618, Page 145, aforesaid Records; as amended by that certain Amendment to
Agreement dated as of July 18, 1985, recorded in Deed Book 10290, Page 289,
aforesaid Records; the interest of R-H Associates Bldg. II Corp. thereunder
having been assigned to Two Atlanta Financial Center Associates by that certain
Assignment and Assumption (DOT Agreements), dated July 28, 1987, recorded in
Deed Book 10973, Page 179, aforesaid Records.
(d) Agreement Regarding Georgia 400 Extension, by and among R-H Associates Bldg.
II Corp., Robinson-Humphrey Properties, Inc., Atlanta Financial Center
Associates, MONY Mortgage Investors, and The Mutual Life Insurance Company of
New York dated July 18, 1985, recorded in Deed Book 9623, Page 75, aforesaid
Records; as amended by that certain First Amendment to Agreement Regarding
Georgia Highway 400 Extension, dated as of July 18, 1985, recorded in Deed Book
10290, Page 419, aforesaid Records; the interest of R-H Associates Bldg. II
Corp. thereunder having been assigned to Two Atlanta Financial Center Associates
by that certain Assignment and Assumption (DOT Agreements) dated July 28, 1987,
recorded in Deed Book 10973, Page 179, aforesaid Records.
(e) Limited Warranty Deed from Atlanta Financial Center Associates, a Georgia
joint venture composed of The Mutual Life Insurance Company of New York and R-H
Building Partners, Ltd., to the Department of Transportation of the State of
Georgia, dated April 4, 1989, filed for record July 19, 1989 at 9:30 a.m.,
recorded in Deed Book 12667, Page 127, aforesaid Records.
(f) Limited Warranty Deed from Two Atlanta Financial Center Associates, a
Georgia joint venture composed of The Mutual Life Insurance Company of New York
and R-H Associates Bldg. II Corp., to the Department of Transportation of the
State of Georgia dated April 4, 1989, filed for record July 19, 1989 at 9:30
a.m., recorded in Deed Book 12667, Page 141, aforesaid Records.
PHASE III
All that tract or parcel of land lying and being in Land Lot 45, 17th District,
City of Atlanta, Fulton County, Georgia and being more particularly described as
follows:
TO FIND THE TRUE POINT OF BEGINNING begin at a point formed by the intersection
of the easternmost right-of-way line of Peachtree Road (a variable right-of-way
being 80 feet at this point) with the northernmost right-of-way line of Highland
Drive (a 50-foot right-of-way); proceed thence in a northeasterly direction
along the aforesaid easternmost right-of-way line a distance of 365.1 feet to a
point; proceed thence along the aforesaid easternmost right-of-way line north
13(degree)43'08" east a distance of 37.39 feet to a point; proceed thence
6
EXHIBIT 'A'
<PAGE> 9
along the aforesaid easternmost right-of-way line, following the curvature
thereof to the right, an arc distance of 179.12 feet to a point, said arc being
subtended by a chord 178.99 feet in length and bearing north 20(degree)26'46"
east; proceed thence in a northeasterly direction along the aforesaid
easternmost right-of-way line north 26(degree)16'11" east a distance of 48.21
feet to a point; proceed thence in a northeasterly direction along the aforesaid
easternmost right-of-way line north 28(degree)17'14" east a distance of 48.18
feet to a point; proceed thence in a northeasterly direction along the aforesaid
easternmost right-of-way line north 30(degree)11'09" east a distance of 48.15
feet to a point; proceed thence in a northeasterly direction along the aforesaid
easternmost right-of-way line north 32(degree)20'44" east a distance of 57.74
feet to a point; proceed thence in a northeasterly direction along the aforesaid
easternmost right-of-way line north 55(degree)03'02" east a distance of 8.44
feet to a point; proceed thence in a northeasterly direction along the aforesaid
easternmost right-of-way line north 55(degree)32'07" east a distance of 18.02
feet to a point; proceed thence in a southeasterly direction along the aforesaid
easternmost right-of-way line, following the curvature thereof to the left, an
arc distance of 7.77 feet to a point, said arc being subtended by a chord 7.77
feet in length and bearing south 31(degree)52'33" east; proceed thence in a
northeasterly direction along the aforesaid easternmost right-of-way line north
35(degree)10'06" east a distance of 74.16 feet to a point; proceed thence in a
southeasterly direction along the aforesaid easternmost right-of-way line south
58(degree)48'33" east a distance of 6.36 feet to a point; proceed thence in a
northeasterly direction along the aforesaid easternmost right-of-way line north
31(degree)11'26" east a distance of 10.05 feet to a point; proceed thence in a
southeasterly direction along the aforesaid easternmost right-of-way line south
58(degree)48'29" east a distance of 19 feet to a point; proceed thence in a
northeasterly direction along the aforesaid easternmost right-of-way line north
31(degree)11'26" east a distance of 24.83 feet to a point; proceed thence in a
northwesterly direction along the aforesaid easternmost right-of-way line north
58(degree)48'44" west a distance of 19 feet to a point; proceed thence in a
northeasterly direction along the aforesaid easterly right-of-way line north
31(degree)11'23" east a distance of 22.01 feet to a point; proceed thence in a
northeasterly direction along the aforesaid easterly right-of-way line north
40(degree)58'56" east a distance of 74.76 feet to a point, said point being THE
TRUE POINT OF BEGINNING.
FROM THE TRUE POINT OF BEGINNING THUS ESTABLISHED proceed thence in a
northeasterly direction along the aforesaid easternmost right-of-way line north
21(degree)19'11" west a distance of 7.91 feet to a point; proceed thence in a
northeasterly direction along the aforesaid easternmost right-of-way line north
23(degree)34'11" east a distance of 38.38 feet to a point; proceed thence in a
northeasterly direction along the aforesaid easternmost right-of-way line north
40(degree)15'17" east a distance of 62.82 feet to a point; proceed thence in a
northeastern direction along the aforesaid easternmost right-of-way line north
39(degree)15'08" east a distance of 49.32 feet to a point; thence leave said
right-of-way line and proceed thence south 48(degree)03'44" east a distance of
95.71 feet to a point; proceed thence south 13(degree)51'45" east a distance of
220.34 feet to a point; proceed thence south 76(degree)11'25" west a distance of
74.14 feet to a point; proceed thence north 74(degree)31'03" west a distance of
62.79 feet to a point; proceed thence south 31(degree)11'25" west a distance of
3.77 feet to a point; proceed thence in a northwesterly direction along the arc
of a curve to the right, an arc distance of 131.99 feet to a point, said arc
being subtended by a chord 131.97 feet in length and bearing north
26(degree)58'00" west to a point; proceed thence north 21(degree)19'11" west a
7
EXHIBIT 'A'
<PAGE> 10
distance of 38.37 feet to a point; said point being THE TRUE POINT OF BEGINNING,
said tract or parcel of land being more particularly shown as "Phase III" on
that certain survey prepared by Michael F. Lawler, Georgia Registered Land
Surveyor no. 1946, prepared for Overseas Partners Capital Corp., dated December
20, 1993, last revised August 27, 1996, and bearing file no. 93153, which survey
is incorporated herein by this reference.
LESS AND EXCEPT that portion of the above property conveyed by that certain
Limited Warranty Deed from R-H Associates Bldg. III Corp., a Georgia corporation
to the Department of Transportation of the State of Georgia, dated April 4,
1989, filed for record July 19, 1989 at 9:30 a.m., recorded in Deed Book 12667,
Page 222, aforesaid Records.
TOGETHER WITH all easements appurtenant to the above property created by
the following:
(a) Parking Deck and Easement Agreement among Michael G. Carlos, George C.
Carlos, Andrew C. Carlos and R-H Building Partners, Ltd., dated July 15, 1981,
recorded at Deed Book 7903, page 165, Fulton County Records, as amended by
Amendment of Parking Deck and Easement Agreement dated July 15, 1981, recorded
at Deed Book 7903, page 385, said Amendment having been terminated by Agreement
dated September 20, 1982, recorded at Deed Book 8255, page 475, as further
amended by Second Amendment to Parking Deck and Easement Agreement dated July
18, 1985, recorded at Deed Book 9618, page 37, and Third Amendment to Parking
Deck and Easement Agreement dated as of July 18, 1985, recorded in Deed Book
10290, page 389 and Declaration of Release dated December 22, 1986, recorded at
Deed Book 10561, page 358, aforesaid records, as further amended by Fourth
Amendment to Parking Deck and Easement Agreement dated as of August 11, 1988,
recorded in Deed Book 11790, page 76, aforesaid Records.
(b) Reciprocal Easement Agreement among Atlanta Financial Center Associates, R-H
Associates Bldg. II Corp. and Robinson-Humphrey Properties, Inc., dated July 18,
1985, recorded in Deed Book 9618, page 68, aforesaid records, as amended by
First Amendment to Reciprocal Easement Agreement dated as of July 18, 1985,
recorded at Deed Book 10290, page 411, as further amended by Declaration of
Release dated December 22, 1986, recorded at Deed Book 10561, page 358,
aforesaid Records, as amended by Second Amendment to Reciprocal Easement
Agreement dated as of August 11, 1988, recorded in Deed Book 11790, page 69,
aforesaid Records.
(c) Agreement among R-H Associates Bldg. II Corp., Atlanta Financial Center
Associates, RobinsonHumphrey Properties, Inc. and Department of Transportation
of State of Georgia, dated July 18, 1985, recorded at Deed Book 9618, page 145,
aforesaid records, as amended by Agreement dated as of July 18, 1985, recorded
at Deed Book 10290, page 289; the interest of R-H Associates Bldg. II Corp.
thereunder having been assigned to Two Atlanta Financial Center Associates by
that certain Assignment and Assumption (DOT Agreements), dated July 28, 1987,
recorded in Deed Book 10973, page 179, aforesaid records.
8
EXHIBIT 'A'
<PAGE> 11
(d) Encroachment Easement Agreement by and between Robinson-Humphrey Properties,
Inc. and Two Atlanta Financial Center Associates dated December 24, 1987,
recorded at Deed Book 11269, page 265, aforesaid records.
(e) Agreement Regarding Georgia 400 Highway Extension among R-H Associates Bldg.
II Corp., Robinson-Humphrey Properties, Inc., Atlanta Financial Center
Associates, Trustees of Mony Mortgage Investors and The Mutual Life Insurance
Company of New York, dated as of July 18, 1985, recorded at Deed Book 9623, page
75, aforesaid records, as amended by First Amendment to Agreement Regarding
Georgia 400 Highway Extension dated as of July 18, 1985, recorded at Deed Book
10290, page 419, aforesaid records; the interest of R-H Associates Bldg. II
Corp. thereunder having been assigned to Two Atlanta Financial Center Associates
by that certain Assignment and Assumption (DOT Agreements), dated July 28, 1987,
recorded in Deed Book 10973, page 179, aforesaid records.
(f) Limited Warranty Deed from Robinson-Humphrey Properties, Inc. to Department
of Transportation of State of Georgia, dated July 18, 1985, recorded at Deed
Book 9618, page 288, aforesaid records, as corrected by Corrective Limited
Warranty Deed dated as of July 18, 1985, recorded at Deed Book 10290, page 372,
aforesaid records.
(g) Limited Warranty Deed from R-H Associates Bldg. III Corp., a Georgia
corporation to the Department of Transportation of the State of Georgia, dated
April 4, 1989, filed for record July 19, 1989 at 9:30 a.m., recorded in Deed
Book 12667, page 222, aforesaid records.
PHASE IV
All that tract or parcel of land lying and being in Land Lot 45, 17th District,
City of Atlanta, Fulton County, Georgia and being more particularly described as
follows:
TO FIND THE TRUE POINT OF BEGINNING begin at a point formed by the intersection
of the easternmost right-of-way line of Peachtree Road (a variable right-of-way
being 80 feet at this point) with the northernmost right-of-way line of Highland
Drive (a 50-foot right-of-way) and proceed thence in a northeasterly direction
along the aforesaid easternmost right-of-way line a distance of 365.1 feet;
proceed thence along the aforesaid easternmost right-of-way line, north
13(degree)43'08" east a distance of 37.39 feet to a point; proceed thence in a
northeasterly direction along the aforesaid easternmost right-of-way line,
following the curvature thereof to the right, an arc distance of 179.12 feet to
a point, said arc being subtended by a chord 178.99 feet in length and bearing
north 20(degree)26'46" east; proceed thence in a northeasterly direction along
the aforesaid easternmost right-of-way line north 26(degree)16'11" east a
distance of 48.21 feet to a point; proceed thence in a northeasterly direction
along the aforesaid easternmost right-of-way line north 28(degree)17'14" east a
distance of 48.18 feet to a point; proceed thence in a northeasterly direction
along the aforesaid easternmost right-of-way line north 30(degree)11'09" east a
distance of 48.15 feet to a point; proceed thence in a northeasterly direction
along the aforesaid easternmost right-of-way line north 32(degree)20'44" east a
distance of 57.74 feet to a point; proceed thence in a northeasterly direction
along the aforesaid easternmost right-of-way line north 55(degree)03'02" east a
distance
9
EXHIBIT 'A'
<PAGE> 12
of 8.44 feet to a point; proceed thence in a northeasterly direction along the
aforesaid easternmost right-of-way line north 55(degree)32'07" east a distance
of 18.02 feet to a point; proceed thence in a southeasterly direction along the
aforesaid easternmost right-of-way line, following the curvature thereof to the
left, an arc distance of 7.77 feet to a point, said arc being subtended by a
chord 7.77 feet in length and bearing south 31(degree)52'33" east, said point
being THE TRUE POINT OF BEGINNING.
FROM THE TRUE POINT OF BEGINNING THUS ESTABLISHED proceed thence in a
northeasterly direction along the aforesaid easternmost right-of-way line north
35(degree)10'06" east a distance of 74.16 feet to a point; proceed thence in a
southeasterly direction along the aforesaid easternmost right-of-way line south
58(degree)48'33" east a distance of 6.36 feet to a point; proceed thence in a
northeasterly direction along the aforesaid easternmost right-of-way line north
31(degree)11'26" east a distance of 10.05 feet to a point; proceed thence in a
southeasterly direction along the aforesaid easternmost right-of-way line south
58(degree)48'29" east a distance of 19 feet to a point; proceed thence in a
northeasterly direction along the aforesaid easternmost right-of-way line north
31(degree)11'26" east a distance of 24.83 feet to a point; proceed thence in a
northwesterly direction along the aforesaid easternmost right-of-way line north
58(degree)48'44" west a distance of 19 feet to a point; proceed thence in a
northeasterly direction along the aforesaid easternmost right-of-way line north
31(degree)11'23" east a distance of 22.01 feet to a point; proceed thence in a
northeasterly direction along the aforesaid easternmost right-of-way line north
40(degree)58'56" east a distance of 74.76 feet to a point; thence leave said
right-of-way line and proceed thence south 21(degree)19'11" east a distance of
38.37 feet to a point; proceed thence in a southeasterly direction along the arc
of a curve to the left, an arc distance of 131.99 feet to a point, said arc
being subtended by a chord 131.97 feet in length and bearing south
26(degree)58'00" east; proceed thence south 31(degree)11'25" west a distance of
193.49 feet to a point; proceed thence in a northwesterly direction along the
arc of a curve to the right, an arc distance of 14.05 feet to a point, said arc
being subtended by a chord 14.05 feet in length and bearing north
31(degree)08'45" west, proceed thence in a northwesterly direction along the arc
of a curve to the right, an arc distance of 171.77 feet to a point, said arc
being subtended by a chord 171.77 feet in length and bearing north
32(degree)46'15" west, said point being located on the aforesaid easternmost
right-of-way line and being THE TRUE POINT OF BEGINNING, said tract or parcel of
land being more particularly shown as "Phase IV" on that certain survey by
Mallett & Associates bearing the seal and certification of Michael F. Lawler,
Georgia Registered Land Surveyor No. 1946, prepared for Overseas Partners
Capital Corp., dated December 20, 1993, last revised August 27, 1996, and
bearing file no. 93153, which survey is incorporated herein by this reference.
LESS AND EXCEPT that portion of the above property conveyed by the following:
(1) Limited Warranty Deed from Robinson-Humphrey Properties, Inc to the
Department of Transportation of the State of Georgia, dated July 18, 1985,
recorded in Deed Book 9618, Page 288, aforesaid Records; as corrected by that
certain Corrective Warranty Deed recorded in Deed Book 10290, Page 372,
aforesaid Records.
10
EXHIBIT 'A'
<PAGE> 13
(2) Limited Warranty Deed from Robinson-Humphrey Properties, Inc., a Georgia
corporation to the Department of Transportation of the State of Georgia, dated
April 4, 1989, filed for record July 19, 1989 at 9:30 a.m., recorded in Deed
Book 12667, page 163, aforesaid records.
(3) Limited Warranty Deed from Robinson-Humphrey Properties, Inc., a Georgia
corporation to the Department of Transportation of the State of Georgia, dated
April 4, 1989, filed for record July 19, 1989 at 9:30 a.m., recorded in Deed
Book 12667, Page 192, aforesaid Records.
TOGETHER WITH all easements appurtenant to the above property created by the
following:
(a) Parking Deck and Easement Agreement by and among Michael C. Carlos, George
C. Carlos, Andrew C. Carlos, and R-H Building Partners, Ltd., dated July 15,
1981, recorded in Deed Book 7903, Page 165, aforesaid Records; as amended by
that certain Amendment of Parking Deck and Easement Agreement, dated July 15,
1981, recorded in Deed Book 7903, Page 385, aforesaid Records (said Amendment
having been terminated by Agreement dated September 20, 1982, recorded in Deed
Book 8255, Page 475, aforesaid Records); as further amended by Second Amendment
to Parking Deck and Easement Agreement, dated July 18, 1985, recorded in Deed
Book 9618, Page 37, aforesaid Records; as further amended by that certain Third
Amendment to Parking Deck and Easement Agreement, dated as of July 18, 1985,
recorded in Deed Book 10290, Page 389, aforesaid Records; as further amended by
that certain Declaration of Release dated December 22, 1986, recorded in Deed
Book 10561, Page 358, aforesaid Records; as further amended by that certain
Fourth Amendment to Parking Deck and Easement Agreement, dated as of August 11,
1988, recorded in Deed Book 11790, Page 76, aforesaid Records.
(b) Reciprocal Easement Agreement by and among Robinson-Humphrey Properties,
Inc., R-H Associates Bldg. II Corp. and Atlanta Financial Center Associates,
dated July 18, 1985, recorded in Deed Book 9618, Page 68, aforesaid Records; as
amended by that certain First Amendment to Reciprocal Easement Agreement, dated
as of July 18, 1985, recorded in Deed Book 10290, Page 411, aforesaid Records;
as further amended by that certain Declaration of Release, dated December 22,
1986, recorded in Deed Book 10561, Page 358, aforesaid Records; as further
amended by that certain Second Amendment to Reciprocal Easement Agreement, dated
as of August 11, 1988, recorded in Deed Book 11790, Page 69, aforesaid Records.
(c) Agreement by and among R-H Associates Bldg. II Corp., Atlanta Financial
Center Associates, Robinson-Humphrey Properties, Inc. and the Department of
Transportation of the State of Georgia, dated July 18, 1985, recorded in Deed
Book 9618, Page 145, aforesaid Records; as amended by that certain Amendment to
Agreement dated as of July 18, 1985, recorded in Deed Book 10290, Page 289,
aforesaid Records; the interest of R-H Associates Bldg. II Corp. thereunder
having been assigned to Two Atlanta Financial Center Associates by that certain
Assignment and Assumption (DOT Agreements), dated July 28, 1987, recorded in
Deed Book 10973, Page 179, aforesaid Records.
11
EXHIBIT 'A'
<PAGE> 14
(d) Agreement Regarding Georgia 400 Extension, by and among R-H Associates Bldg.
II Corp., Robinson-Humphrey Properties, Inc., Atlanta Financial Center
Associates, MONY Mortgage Investors, and The Mutual Life Insurance Company of
New York dated July 18, 1985, recorded in Deed Book 9623, Page 75, aforesaid
Records; as amended by that certain First Amendment to Agreement Regarding
Georgia Highway 400 Extension, dated as of July 18, 1985, recorded in Deed Book
10290, Page 419, aforesaid Records; the interest of R-H Associates Bldg. II
Corp. thereunder having been assigned to Two Atlanta Financial Center Associates
by that certain Assignment and Assumption (DOT Agreements) dated July 28, 1987,
recorded in Deed Book 10973, Page 179, aforesaid Records.
(e) Limited Warranty Deed from Robinson-Humphrey Properties, Inc. to the
Department of Transportation of the State of Georgia, dated July 18, 1985,
recorded in Deed Book 9618, Page 288, aforesaid Records; as corrected by that
certain Corrective Warranty Deed recorded in Deed Book 10290, Page 372,
aforesaid Records.
(f) Limited Warranty Deed from Robinson-Humphrey Properties, Inc., a Georgia
corporation to the Department of Transportation of the State of Georgia, dated
April 4, 1989, filed for record July 19, 1989 at 9:30 a.m., recorded in Deed
Book 12667, Page 163, aforesaid Records.
(g) Limited Warranty Deed from Robinson-Humphrey Properties, Inc., a Georgia
corporation to the Department of Transportation of the State of Georgia, dated
April 4, 1989, filed for record July 19, 1989 at 9:30 a.m., recorded in Deed
Book 12667, Page 192, aforesaid Records
12
EXHIBIT 'A'
<PAGE> 15
PERMITTED TITLE EXCEPTIONS
1. All City of Atlanta ad valorem taxes subsequent to the year 1996 and all
state and county ad valorem taxes subsequent to the year 1995.
2. Rights of tenants in possession pursuant to leases specifically assigned by
The Mutual Life Insurance Company of New York to Overseas Partners Capital
Corp.
3. All matters disclosed by the survey of the Property prepared by Michael E.
Lawler, Georgia Registered Land Surveyor No. 1946, dated December 20, 1993
and last revised August 27, 1996.
4. Indenture from J. W. Walters to Stratford Arms Apartments, Inc, dated
October 29, 1958, recorded in Deed Book 3389, Page 525, Records of Fulton
County, Georgia
5. Sewer Easement from Beverly M. DuBose to Julian C Jett and Julia G. Jett,
dated June 20, 1951, recorded in Deed Book 2661, Page 43, aforesaid
Records.
6. General Utility Easement from B. M. DuBose to Georgia Power Company, dated
December 27, 1949, recorded in Deed Book 2498, page 464, aforesaid Records.
7. Easement from Atlanta Financial Center Associates to Georgia Power Company,
dated January 20, 1986, recorded in Deed Book 9948, Page 54, aforesaid
Records.
8. Easement from Atlanta Financial Center Associates to Georgia Power Company,
dated February 1, 1991, filed for record February 1, 1991 at 12:37 p.m.,
recorded in Deed Book 14030, Page 167, aforesaid Records.
9. Parking Deck and Easement Agreement by and among Michael C Carlos, George
C. Carlos, Andrew C Carlos, and R-H Building Partners, Ltd., dated July 15,
1981, recorded in Deed Book 7903, Page 165, aforesaid Records; as amended
by that certain Amendment of Parking Deck and Easement Agreement, dated
July 15, 1981, recorded in Deed Book 7903, Page 385, aforesaid Records
(said Amendment having been terminated by Agreement dated September 20,
1982, recorded in Deed Book 8255, Page 475, aforesaid Records); as further
amended by Second Amendment to Parking Deck and Easement Agreement, dated
July 18, 1985, recorded in Deed Book 9618, Page 37, aforesaid Records; as
further amended by that certain Third Amendment to Parking Deck and
Easement Agreement, dated as of July 18, 1985, recorded in Deed Book 10290,
Page 389, aforesaid Records; as further amended by that certain Declaration
of Release dated December 22, 1986, recorded in Deed Book 10561, Page 358,
aforesaid Records; as further amended by that certain Fourth Amendment to
Parking Deck
EXHIBIT 'B'
<PAGE> 16
and Easement Agreement, dated as of August 11, 1988, recorded in Deed Book
11790, Page 76, aforesaid Records.
10. Reciprocal Easement Agreement by and among Robinson-Humphrey Properties,
Inc., R-H Associates Bldg. II Corp. and Atlanta Financial Center
Associates, dated July 18, 1985, recorded in Deed Book 9618, Page 68,
aforesaid Records; as amended by that certain First Amendment to Reciprocal
Easement Agreement, dated as of July 18, 1985, recorded in Deed Book 10290,
Page 411, aforesaid Records; as further amended by that certain Declaration
of Release, dated December 22, 1986, recorded in Deed Book 10561, Page 358,
aforesaid Records; as further amended by that certain Second Amendment to
Reciprocal Easement Agreement, dated as of August 11, 1988, recorded in
Deed Book 11790, Page 69, aforesaid Records.
11. Agreement by and among R-H Associates Bldg. II Corp., Atlanta Financial
Center Associates, Robinson-Humphrey Properties, Inc. and the Department of
Transportation of the State of Georgia, dated July 18, 1985, recorded in
Deed Book 9618, Page 145, aforesaid Records; as amended by that certain
Amendment to Agreement dated as of July 18, 1985, recorded in Deed Book
10290, Page 289, aforesaid Records; the interest of R-H Associates Bldg. II
Corp. thereunder having been assigned to Two Atlanta Financial Center
Associates by that certain Assignment and Assumption (DOT Agreements),
dated July 28, 1987, recorded in Deed Book 10973, Page 179, aforesaid
Records.
12. Easement Agreement by and between R-H Associates Bldg. II Corp. and the
Department of Transportation of the State of Georgia, dated July 18, 1985,
recorded in Deed Book 9618, Page 301, aforesaid Records; as amended by that
certain First Amendment to Easement Agreement, dated as of July 18, 1985,
recorded in Deed Book 10290, Page 383, aforesaid Records.
13. Agreement Regarding Georgia 400 Extension, by and among R-H Associates
Bldg. II Corp., Robinson-Humphrey Properties, Inc., Atlanta Financial
Center Associates, MONY Mortgage Investors, and The Mutual Life Insurance
Company of New York, dated July 18, 1985, recorded in Deed Book 9623, Page
75, aforesaid Records; as amended by that certain First Amendment to
Agreement Regarding Georgia Highway 400 Extension, dated as of July 18,
1985, recorded in Deed Book 10290, Page 419, aforesaid Records; the
interest of R-H Associates Bldg. II Corp. thereunder having been assigned
to Two Atlanta Financial Center Associates by that certain Assignment and
Assumption (DOT Agreements) dated July 28, 1987, recorded in Deed Book
10973, Page 179, aforesaid Records.
14. Encroachment Easement Agreement by and between Robinson-Humphrey
Properties, Inc., a Georgia corporation and Two Atlanta Financial Center
Associates, a Georgia general partnership, dated December 24, 1987, filed
for record January 13, 1988 at 11:50 a m., recorded in Deed Book 11269,
Page 265, aforesaid Records.
2
EXHIBIT 'B'
<PAGE> 17
15. Easements contained in and limitations, restrictions and other matters
pertaining to the use and enjoyment of the easements reserved in that
certain Limited Warranty Deed from R-H Building Partners, Ltd., a Georgia
limited partnership, as to an undivided 50% interest and The Mutual Life
Insurance Company of New York a New York corporation, as to an undivided
50% interest, together doing business as Atlanta Financial Center
Associates, a Georgia Joint Venture to The Department of Transportation of
the State of Georgia, dated December 22, 1986, filed for record December
23, 1986 at 1:41 p.m., recorded in Deed Book 10513, Page 108, aforesaid
Records.
16. Easements contained in and limitations, restrictions and other matters
pertaining to the use and enjoyment of the easements reserved in that
certain Limited Warranty Deed from R-H Associates Bldg. II Corp. to the
Department of Transportation, dated December 22, 1986, recorded in Deed
Book 10513, Page 127, aforesaid Records.
17. Easements contained in and limitations, restrictions and other matters
pertaining to the use and enjoyment of the easements reserved in that
certain Limited Warranty Deed from Atlanta Financial Center Associates, a
Georgia joint venture composed of The Mutual Life Insurance Company of New
York and R-H Building Partners, Ltd., to the Department of Transportation
of the State of Georgia, dated April 4, 1989, filed for record July 19,
1989 at 9:30 am., recorded in Deed Book 12667, Page 115, aforesaid Records.
18. Easements contained in and limitations, restrictions and other matters
pertaining to the use and enjoyment of the easements reserved in that
certain Limited Warranty Deed from Two Atlanta Financial Center
Associates, a Georgia joint venture composed of The Mutual Life Insurance
Company of New York and R-H Associates Bldg. II Corp., to the Department of
Transportation of the State of Georgia, dated April 4, 1989, filed for
record July 19, 1989 at 9:30 a.m., recorded in Deed Book 12667, Page 141,
aforesaid Records.
19. Easements contained in and limitations, restrictions and other matters
pertaining to the use and enjoyment of the easements reserved in that
certain limited Warranty Deed from R-H Associates Bldg. III Corp., a
Georgia corporation to the Department of Transportation of the State of
Georgia, dated April 4, 1989, filed for record July 19, 1989 at 9:30 a.m.,
recorded in Deed Book 12667, Page 222, aforesaid Records.
20. Easement contained in and limitations, restrictions and other matters
pertaining to the use and enjoyment of the easements reserved in that
certain Limited Warranty Deed from Robinson-Humphrey Properties, Inc. to
the Department of Transportation of the State of Georgia, dated July 18,
1985, recorded in Deed Book 9618, Page 288, aforesaid Records; as corrected
by that certain Corrective Warranty Deed recorded in Deed Book 10290, Page
372, aforesaid Records.
3
EXHIBIT 'B'
<PAGE> 18
21. Access Easement Agreement from Robinson-Humphrey Properties, Inc., to the
Department of Transportation of the State of Georgia, dated April 4, 1989,
recorded in Deed Book 12667, Page 100, aforesaid Records.
22. Easements contained in and limitations, restrictions and other matters
pertaining to the use and enjoyment of the easements reserved in that
certain Limited Warranty Deed from Robinson-Humphrey Properties, Inc., a
Georgia corporation to the Department of Transportation of the State of
Georgia, dated April 4, 1989, filed for record July 19, 1989 at 9:30 a.m.,
recorded in Deed Book 12667, Page 163, aforesaid Records.
23. Easements contained in and limitations, restrictions and other matters
pertaining to the use and enjoyment of the easements reserved in that
certain Limited Warranty Deed from Robinson-Humphrey Properties, Inc., a
Georgia corporation to the Department of Transportation of the State of
Georgia, dated April 4, 1989, filed for record July 19, 1989 at 9:30 a.m.,
recorded in Deed Book 12667, Page 192, aforesaid Records.
24. Easement from R-H Bldg. Partners, Ltd. to Georgia Power Company dated May
24, 1982 and recorded in Deed Book 8163, Page 272, aforesaid Records.
4
EXHIBIT 'B'
<PAGE> 1
EXHIBIT 10.rr
ASSIGNMENT AND ASSUMPTION OF LEASES
THIS ASSIGNMENT AND ASSUMPTION OF LEASES (hereinafter referred to as this
"AGREEMENT"), made and entered into as of the 30th day of August, 1996, by and
between THE MUTUAL LIFE INSURANCE COMPANY OF NEW YORK, a New York corporation
(hereinafter referred to as "SELLER"), and OVERSEAS PARTNERS (AFC), INC., a
Georgia corporation (hereinafter referred TO AS "PURCHASER"),
WITNESSETH:
WHEREAS, Seller is the owner of certain improved real property (hereinafter
referred to as the "PROPERTY") located in the City of Atlanta, County of Fulton,
State of Georgia, as more particularly described in EXHIBIT "A" attached hereto
and by this reference made a part hereof; and
WHEREAS, Seller has on even date conveyed the Property to Purchaser, and in
connection therewith Seller wishes hereby to transfer and assign to Purchaser
all of Seller's right, title and interest in and to certain leases related to
the Property as more particularly described below.
NOW, THEREFORE, in consideration of the sum of Ten Dollars ($10.00) and
other good and valuable consideration, in hand paid by Purchaser to Seller, the
receipt and sufficiency of which are hereby acknowledged, Seller and Purchaser
hereby covenant and agree as follows:
1. ASSIGNMENT AND ASSUMPTION. Seller hereby transfers and assigns to
Purchaser all of Seller's right, title and interest in and to (i) the lease,
rental and occupancy agreements (hereinafter referred to collectively as the
"LEASES") described in EXHIBIT "B" attached hereto and by this reference made a
part hereof, and (ii) the leasing commission agreements (hereinafter referred to
collectively as the "COMMISSION AGREEMENTS") described in EXHIBIT "C" attached
hereto and by this reference made a part hereof. Purchaser hereby assumes
Seller's obligations and liabilities arising from and after the date of this
Agreement under both the Leases, and the Commission Agreements. Further,
Purchaser hereby agrees to indemnify Seller and hold Seller harmless from any
loss, damage, liability, cost or expense (including, without limitation, court
costs and attorney's fees) which Seller shall hereafter incur or have asserted
against it with regard to said obligations and liabilities assumed by Purchaser
in connection with the Leases and the Commission Agreements.
2. SELLER'S INDEMNITY. Seller hereby agrees to indemnify Purchaser and hold
Purchaser harmless from any loss, damage, liability, cost or expense (including,
without
<PAGE> 2
limitation, court costs and attorney's fees) which Purchaser shall hereafter
incur or have asserted against it in connection with obligations and liabilities
under the Leases and the Commission Agreements to the extent performance or
payment of such obligations and liabilities was due prior to the date of this
Agreement.
3. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and inure
to the benefit of Purchaser and Seller and their respective heirs, legal
representatives, successors and assigns.
IN WITNESS WHEREOF, Seller and Purchaser have executed this Agreement under
seal as of the date first above written.
SELLER:
THE MUTUAL LIFE INSURANCE COMPANY
OF NEW YORK, a New York corporation
By:/s/Bruce C. Fernald
--------------------------------
Bruce C. Fernald
Senior Vice President
ARES Realty Capital, Inc.
Authorized Signatory
[CORPORATE SEAL]
2
<PAGE> 3
[EXECUTION PAGE FOR ASSIGNMENT AND ASSUMPTION OF LEASES]
PURCHASER:
OVERSEAS PARTNERS (AFC), INC.,
a Georgia corporation
By:/s/ Bruce M. Barone
---------------------------------------
Name: Bruce M. Barone
Title: President
[CORPORATE SEAL]
<PAGE> 4
LEGAL DESCRIPTION OF LAND
PHASE I
ALL THAT TRACT OR PARCEL OF LAND lying and being in Land Lots 45 and 62, 17th
District, City of Atlanta, Fulton County, Georgia and being more particularly
described as follows:
TO FIND THE TRUE POINT OF BEGINNING, begin at the point formed by the
intersection of the northernmost right-of-way line of Highland Drive (a 50-foot
right-of-way with the easternmost right-of-way line of Peachtree Road (a
variable right-of-way being 80 feet at this point) and proceed thence in a
northerly direction along the aforesaid easternmost right-of-way line, following
the curvature thereof, a distance of 365.1 feet to an iron pin which is THE TRUE
POINT OF BEGINNING.
FROM THE TRUE POINT OF BEGINNING THUS ESTABLISHED proceed thence along the
aforesaid easternmost right-of-way line north 13(degree)43'08" east a distance
of 37.39 feet to a point on the aforesaid easternmost right-of-way line; proceed
thence along the aforesaid easternmost right-of-way line along an arc of a curve
to the right, an arc distance of 179.12 feet to a point, said arc being
subtended by a chord 178.99 feet in length and bearing north 20(degree)26'46"
east; proceed thence along the aforesaid easternmost right-of-way line north
26(degree)16'11" east a distance of 48.21 feet to a point on the aforesaid
easternmost right-of-way line; proceed thence along the aforesaid easternmost
right-of-way line north 28(degree)17'14" east 48.18 feet to a point on the
aforesaid easternmost right-of-way line; proceed thence along the aforesaid
easternmost right-of-way line north 30(degree)11'09" east a distance of 48.15
feet to a point on the aforesaid easternmost right-of-way line; proceed thence
north 32(degree)20'44" east a distance of 57.74 feet to a point on the aforesaid
easternmost right-of-way line; proceed thence along the aforesaid easternmost
right-of-way line north 55(degree)03'02" east a distance of 8.44 feet to a point
on the aforesaid easternmost right-of-way line; proceed thence along an arc of a
curve to the left, departing from the aforesaid easternmost right-of-way line,
an arc distance of 178.88 feet, said arc being subtended by a chord 178.87 feet
in length and bearing south 32(degree)44'02" east; proceed thence along an arc
of a curve to the left, an arc distance of 23.09 feet to a point, said arc being
subtended by a chord 23.09 feet in length and bearing south 31(degree)15'01"
east; proceed thence south 31(degree)11'25" west, a distance of 26.49 feet to a
point; proceed thence south 81(degree)18'35" east, a distance of 35.04 feet to a
point; proceed thence south 14(degree)08'05" east, a distance of 140.56 feet to
a point; proceed thence south 81(degree)21'18" east, a distance of 0.36 feet to
a point; proceed thence north 31(degree)11'25" east, a distance of 366.62 feet
to a point; proceed thence south 74(degree)31'03" east, a distance of 10.04 feet
to a point; proceed thence north 13(degree)51'45" west, a distance of 261.95
feet to a point; proceed thence north 48(degree)03'44" west, a distance of 95.71
feet to a point located on the aforesaid easternmost right-of-way line of
Peachtree Road; proceed thence along the aforesaid easternmost right-of-way line
north 39(degree)15'08" east, a distance of 142.28 feet to a point; proceed
thence south 13(degree)51'45" east, a distance of 1,104.35 feet to a point
located
EXHIBIT 'A'
<PAGE> 5
on the Land Lot line common to Land Lots 45 and 46 of the 17th District of
Fulton County, Georgia; proceed thence along the said common Land Lot line north
89(degree)37'06" west, a distance of 363.25 feet; proceed thence, departing from
said common Land Lot line, north 12(degree)49'09" west, a distance of 218.41
feet to a point; proceed thence north 79(degree)10'45" west, a distance of
356.72 feet to a point located on the aforesaid easternmost right-of-way line of
Peachtree Road, said point being the TRUE POINT OF BEGINNING, said tract or
parcel of land being more particularly shown as "Phase I" on that certain survey
by Mallett & Associates bearing the seal and certification of Michael F. Lawler,
Georgia Registered Land Surveyor No. 1946, prepared for Overseas Partners
Capital Corp., dated December 20, 1993, last revised August 27, 1996, and
bearing file no. 93153, which survey is incorporated herein by this reference.
LESS AND EXCEPT that portion of the above property conveyed by the following:
(1) Limited Warranty Deed from R-H Building Partners, Ltd., a Georgia limited
partnership, as to an undivided 50% interest and The Mutual Life Insurance
Company of New York a New York corporation, as to an undivided 50% interest,
together doing business as Atlanta Financial Center Associates, a Georgia Joint
Venture to The Department of Transportation of the State of Georgia, dated
December 22, 1986, filed for record December 23, 1986 at 1:41 p.m., recorded in
Deed Book 10513, Page 108, Records of Fulton County, Georgia
(2) Limited Warranty Deed from Atlanta Financial Center Associates, a Georgia
joint venture composed of The Mutual Life Insurance Company of New York and R-H
Building Partners, Ltd., to the Department of Transportation of the State of
Georgia dated April 4, 1989, filed for record July 19, 1989 at 9:30 a.m.,
recorded in Deed Book 12667, Page 115, aforesaid Records.
TOGETHER WITH all easements appurtenant to the above property created by the
following:
(a) Parking Deck and Easement Agreement by and among Michael C. Carlos, George
C. Carlos, Andrew C. Carlos, and R-H Building Partners, Ltd., dated July 15,
1981, recorded in Deed Book 7903, Page 165, aforesaid Records; as amended by
that certain Amendment of Parking Deck and Easement Agreement, dated July 15,
1981, recorded in Deed Book 7903, Page 385, aforesaid Records (said Amendment
having been terminated by Agreement dated September 20, 1982, recorded in Deed
Book 8255, Page 475, aforesaid Records); as further amended by Second Amendment
to Parking Deck and Easement Agreement, dated July 18, 1985, recorded in Deed
Book 9618, Page 37, aforesaid Records; as further amended by that certain Third
Amendment to Parking Deck and Easement Agreement, dated as of July 18, 1985,
recorded in Deed Book 10290, Page 389, aforesaid Records; as further amended by
that certain Declaration of Release dated December 22, 1986, recorded Deed Book
10561, Page 358, aforesaid Records; as further amended by that certain Fourth
Amendment to Parking Deck and Easement Agreement, dated as of August 11, 1988,
recorded in Deed Book 11790, Page 76, aforesaid Records.
2
EXHIBIT 'A'
<PAGE> 6
(b) Reciprocal Easement Agreement by and among Robinson-Humphrey Properties,
Inc., R-H Associates Bldg. II Corp. and Atlanta Financial Center Associates,
dated July 18, 1985, recorded in Deed Book 9618, Page 68, aforesaid Records; as
amended by that certain First Amendment to Reciprocal Easement Agreement, dated
as of July 18, 1985, recorded in Deed Book 10290, Page 411, aforesaid Records;
as further amended by that certain Declaration of Release, dated December 22,
1986, recorded in Deed Book 10561, Page 358, aforesaid Records; as further
amended by that certain Second Amendment to Reciprocal Easement Agreement, dated
as of August 11, 1988, recorded in Deed Book 11790, Page 69, aforesaid Records.
(c) Agreement by and among R-H Associates Bldg. II Corp., Atlanta Financial
Center Associates, Robinson-Humphrey Properties, Inc. and the Department of
Transportation of the State of Georgia, dated July 18, 1985, recorded in Deed
Book 9618, Page 145, aforesaid Records; as amended by that certain Amendment to
Agreement dated as of July 18, 1985, recorded in Deed Book 10290, page 289,
aforesaid Records; the interest of R-H Associates Bldg. II Corp. thereunder
having been assigned to Two Atlanta Financial Center Associates by that certain
Assignment and Assumption (DOT Agreements), dated July 28, 1987, recorded in
Deed Book 10973, Page 179, aforesaid Records.
(d) Agreement Regarding Georgia 400 Extension, by and among R-H Associates Bldg.
II Corp., Robinson-Humphrey Properties, Inc., Atlanta Financial Center
Associates, MONY Mortgage Investors, and The Mutual Life Insurance Company of
New York dated July 18, 1985, recorded in Deed Book 9623, Page 75, aforesaid
Records; as amended by that certain First Amendment to Agreement Regarding
Georgia Highway 400 Extension, dated as of July 18, 1985, recorded in Deed Book
10290, Page 419, aforesaid Records; the interest of R-H Associates Bldg. II
Corp. thereunder having been assigned to Two Atlanta Financial Center Associates
by that certain Assignment and Assumption (DOT Agreements) dated July 28, 1987,
recorded in Deed Book 10973, Page 179, aforesaid Records.
(e) Limited Warranty Deed from R-H Building Partners, Ltd., a Georgia limited
partnership, as to an undivided 50% interest and The Mutual Life Insurance
Company of New York, a New York corporation, as to an undivided 50% interest,
together doing business as Atlanta Financial Center Associates, a Georgia Joint
Venture to the Department of Transportation of the State of Georgia, dated
December 22, 1986, filed for record December 23, 1986 at 1:41 p.m., recorded in
Deed Book 10513, Page 108, aforesaid Records.
(f) Limited Warranty Deed from Atlanta Financial Center Associates, a Georgia
joint venture composed of The Mutual Life Insurance Company of New York and R-H
Building Partners, Ltd., to the Department of Transportation of the State of
Georgia, dated April 4, 1989, filed for record July 19, 1989 at 9:30 a.m.,
recorded in Deed Book 12667, Page 115, aforesaid Records.
3
EXHIBIT 'A'
<PAGE> 7
PHASE II
ALL THAT TRACT OR PARCEL OF LAND lying and being in Land Lot 45, 17th District,
City of Atlanta, Fulton County, Georgia and being more particularly described as
follows:
TO FIND THE TRUE POINT OF BEGINNING begin at a point formed by the intersection
of the easternmost right-of-way line of Peachtree Road (a variable right-of-way
being 80 feet at this point) with the northernmost right-of-way line of Highland
Drive (a 50-foot right-of-way) and proceed thence in a northeasterly direction
along the aforesaid easternmost right-of-way line of Peachtree Road a distance
of 365.1 feet to a point; proceed thence in a northeasterly direction along the
aforesaid easternmost right-of-way line north 13(degree)43'08" east a distance
of 37.39 feet to a point; proceed thence along the aforesaid easternmost
right-of-way line, following the curvature thereof to the right, an arc distance
of 179.12 feet to a point, said arc being subtended by a chord 178.99 feet in
length and bearing north 20(degree)26'46" east; proceed thence in a
northeasterly direction along the aforesaid easternmost right-of-way line north
26(degree)16'11" east a distance of 48.21 feet to a point; proceed thence in a
northeasterly direction along the aforesaid easternmost right-of-way line north
28(degree)17'14" east a distance of 48.18 feet to a point; proceed thence in a
northeasterly direction along the aforesaid easternmost right-of-way line north
30(degree)11'09" east a distance of 48.15 feet to a point; proceed thence in a
northeasterly direction along the aforesaid easternmost right-of-way line north
32(degree)20'44" east a distance of 57.74 feet to a point; proceed thence in a
northeasterly direction along the aforesaid easternmost right-of-way line north
55(degree) 03'02" east a distance of 8.44 feet to a point, said point being THE
TRUE POINT OF BEGINNING.
FROM THE TRUE POINT OF BEGINNING THUS ESTABLISHED proceed thence along the
aforesaid easternmost right-of-way line north 55(degree)03'07" east a distance
of 18.02 feet to a point; proceed thence in a southeasterly direction along the
aforesaid easterly right-of-way line, following the curvature thereof to the
right, an arc distance of 7.77 feet to a point, said arc being subtended by a
chord 7.77 feet in length and bearing south 31(degree)52'33" east; thence leave
said right-of-way line and proceed in a southeasterly direction along the arc of
a curve to the left, an arc distance of 171.77 feet to a point, said arc being
subtended by a chord 171.77 feet in length and bearing south 32(degree)46'15"
east; proceed thence in a southeasterly direction along the arc of a curve to
the left, an arc distance of 14.05 feet to a point, said arc being subtended by
a chord 14.05 feet in length and bearing south 31(degree)08'45" east; proceed
thence north 31(degree)11'25" east a distance of 193.49 feet to a point; proceed
thence north 31(degree)11'25" east a distance of 3.77 feet to a point; proceed
thence south 74(degree)31'03" east a distance of 62.79 feet to a point; proceed
thence north 76(degree)11'25" east a distance of 74.14 feet to a point; proceed
thence south 13(degree)51'45" east a distance of 41.61 feet; proceed thence
north 74(degree)31'03" west a distance of 10.04 feet to a point; proceed thence
south 31(degree)11'25" west a distance of 366.62 feet to a point; proceed thence
north 81(degree)21'18" west a distance of 0.36 feet to a point; proceed thence
north 14(degree)08'05" west a distance of 14056 feet to a point; proceed thence
north 81(degree)18'35" west a distance of 35.04 feet to a point; proceed thence
north 31(degree)11'25" east a distance of 26.49 feet to a point; proceed thence
along the arc of a curve to the right an arc distance of 23.09 feet to a point,
said arc being subtended by a chord 23.09 feet in length and bearing north
31(degree)15'01" west; proceed thence
4
EXHIBIT 'A'
<PAGE> 8
along an arc of a curve to the right an arc distance of 178.88 feet to a point,
said arc being subtended by a chord 178.87 feet in length and bearing north
32(degree)44'02" west, said point being THE TRUE POINT OF BEGINNING, said tract
or parcel of land being more particularly shown as "Phase II" on that certain
survey by Mallett & Associates, bearing the seal and certification of Michael F.
Lawler, Georgia Registered Land Surveyor No. 1946, prepared for Overseas
Partners Capital Corp., dated December 20, 1993, last revised August 27, 1996,
and bearing file no. 93153, which survey is incorporated herein by this
reference.
LESS AND EXCEPT that portion of the above property conveyed by the following:
(1) Limited Warranty Deed from R-H Associates Bldg. II Corp. to the Department
of Transportation, dated December 22, 1986, recorded in Deed Book 10513, Page
127, aforesaid Records.
(2) Limited Warranty Deed from Two Atlanta Financial Center Associates, a
Georgia joint venture composed of The Mutual Life Insurance Company of New York
and R-H Associates Bldg. II Corp., to the Department of Transportation of the
State of Georgia, dated April 4, 1989, filed for record July 19, 1989 at 9:30
a.m., recorded in Deed Book 12667, Page 141, aforesaid Records.
TOGETHER WITH all easements appurtenant to the above property created by the
following:
(a) Parking Deck and Easement Agreement by and among Michael C Carlos, George C.
Carlos, Andrew C. Carlos, and R-H Building Partners, Ltd., dated July 15, 1981,
recorded in Deed Book 7903, Page 165, aforesaid Records; as amended by that
certain Amendment of Parking Deck and Easement Agreement, dated July 15, 1981,
recorded in Deed Book 7903, Page 385, aforesaid Records (said Amendment having
been terminated by Agreement dated September 20, 1982, recorded in Deed Book
8255, Page 475, aforesaid Records); as further amended by Second Amendment to
Parking Deck and Easement Agreement, dated July 18, 1985, recorded in Deed Book
9618, Page 37, aforesaid Records; as further amended by that certain Third
Amendment to Parking Deck and Easement Agreement, dated as of July 18, 1985,
recorded in Deed Book 10290, Page 389, aforesaid Records; as further amended by
that certain Declaration of Release dated December 22, 1986, recorded in Deed
book 10561, PAGE 358, aforesaid Records; as further amended by that certain
Fourth Amendment to Parking Deck and Easement Agreement, dated as of August 11,
1988, recorded in Deed Book 11790, Page 76, aforesaid Records.
(b) Reciprocal Easement Agreement by and among Robinson-Humphrey Properties,
Inc., R-H Associates Bldg. II Corp. and Atlanta Financial Center Associates,
dated July 18, 1985, recorded in Deed Book 9618, Page 68, aforesaid Records; as
amended by that certain First Amendment to Reciprocal Easement Agreement, dated
as of July 18, 1985, recorded in Deed Book 10290, Page 411, aforesaid Records;
as further amended by that certain Declaration of Release, dated December 22,
1986, recorded in Deed Book 10561, Page 358, aforesaid Records; as further
amended by that certain Second Amendment to Reciprocal
5
EXHIBIT 'A'
<PAGE> 9
Easement Agreement, dated as of August 11, 1988, recorded in Deed Book 11790,
Page 69, aforesaid Records.
(c) Agreement by and among R-H Associates Bldg. II Corp., Atlanta Financial
Center Associates, Robinson-Humphrey Properties, Inc. and the Department of
Transportation of the State of Georgia, dated July 18, 1985, recorded in Deed
Book 9618, Page 145, aforesaid Records; as amended by that certain Amendment to
Agreement dated as of July 18, 1985, recorded in Deed Book 10290, Page 289,
aforesaid Records; the interest of R-H Associates Bldg. II Corp. thereunder
having been assigned to Two Atlanta Financial Center Associates by that certain
Assignment and Assumption (DOT Agreements), dated July 28, 1987, recorded in
Deed Book 10973, Page 179, aforesaid Records.
(d) Agreement Regarding Georgia 400 Extension, by and among R-H Associates Bldg.
II Corp., Robinson-Humphrey Properties, Inc., Atlanta Financial Center
Associates, MONY Mortgage Investors, and The Mutual Life Insurance Company of
New York dated July 18, 1985, recorded in Deed Book 9623, Page 75, aforesaid
Records; as amended by that certain First Amendment to Agreement Regarding
Georgia Highway 400 Extension, dated as of July 18, 1985, recorded in Deed Book
10290, Page 419, aforesaid Records; the interest of R-H Associates Bldg. II
Corp. thereunder having been assigned to Two Atlanta Financial Center Associates
by that certain Assignment and Assumption (DOT Agreements) dated July 28, 1987,
recorded in Deed Book 10973, Page 179, aforesaid Records.
(e) Limited Warranty Deed from Atlanta Financial Center Associates, a Georgia
joint venture composed of The Mutual Life Insurance Company of New York and R-H
Building Partners, Ltd., to the Department of Transportation of the State of
Georgia dated April 4, 1989, filed for record July 19, 1989 at 9:30 am.,
recorded in Deed Book 12667, Page 127, aforesaid Records.
(f) Limited Warranty Deed from Two Atlanta Financial Center Associates, a
Georgia joint venture composed of The Mutual Life Insurance Company of New York
and R-H Associates Bldg. II Corp., to the Department of Transportation of the
State of Georgia, dated April 4, 1989, filed for record July 19, 1989 at 9:30
a.m., recorded in Deed Book 12667, Page 141, aforesaid Records.
PHASE III
All that tract or parcel of land lying and being in Land Lot 45, 17th District,
City of Atlanta, Fulton County, Georgia and being more particularly described as
follows:
TO FIND THE TRUE POINT OF BEGINNING begin at a point formed by the intersection
of the easternmost right-of-way line of Peachtree Road (a variable right-of-way
being 80 feet at this point) with the northernmost right-of-way line of Highland
Drive (a 50-foot right-of-way proceed thence in a northeasterly direction along
the aforesaid easternmost right-of-way line a distance of 365.1 feet to a point;
proceed thence along the aforesaid easternmost right-of-way line north
13(degree)43'08" east a distance of 37.39 feet to a point; proceed thence
6
EXHIBIT 'A'
<PAGE> 10
along the aforesaid easternmost right-of-way line, following the curvature
thereof to the right, an arc distance of 179.12 feet to a point, said arc being
subtended by a chord 178.99 feet in length and bearing north 20(degree)26'46"
east; proceed thence in a northeasterly direction along the aforesaid
easternmost right-of-way line north 26(degree)16'11" east a distance of 48.21
feet to a point; proceed thence in a northeasterly direction along the aforesaid
easternmost right-of-way line north 28(degree)17'14" east a distance of 48.18
feet to a point; proceed thence in a northeasterly direction along the aforesaid
easternmost right-of-way line north 30(degree)11'09" east a distance of 48.15
feet to a point; proceed thence in a northeasterly direction along the aforesaid
easternmost right-of-way line north 32(degree)20'44" east a distance of 57.74
feet to a point; proceed thence in a northeasterly direction along the aforesaid
easternmost right-of-way line north 55(degree)03'02" east a distance of 8.44
feet to a point; proceed thence in a northeasterly direction along the aforesaid
easternmost right-of-way line north 55(degree)32'07" east a distance of 18.02
feet to a point; proceed thence in a southeasterly direction along the aforesaid
easternmost right-of-way line, following the curvature thereof to the left, an
arc distance of 7.77 feet to a point, said arc being subtended by a chord 7.77
feet in length and bearing south 31(degree)52'33" east; proceed thence in a
northeasterly direction along the aforesaid easternmost right-of-way line north
35(degree)10'06" east a distance of 74.16 feet to a point; proceed thence in a
southeasterly direction along the aforesaid easternmost right-of-way line south
58(degree)48'33" east a distance of 6.36 feet to a point; proceed thence in a
northeasterly direction along the aforesaid easternmost right-of-way line north
31(degree)11'26" east a distance of 10.05 feet to a point; proceed thence in a
southeasterly direction along the aforesaid easternmost right-of-way line south
58(degree)48'29" east a distance of 19 feet to a point; proceed thence in a
northeasterly direction along the aforesaid easternmost right-of-way line north
31(degree)11'26" east a distance of 24.83 feet to a point; proceed thence in a
northwesterly direction along the aforesaid easternmost right-of-way line north
58(degree)48'44" west a distance of 19 feet to a point; proceed thence in a
northeasterly direction along the aforesaid easterly right-of-way line north
31(degree)11'23" east a distance of 22.01 feet to a point; proceed thence in a
northeasterly direction along the aforesaid easterly right-of-way line north
40(degree)58'56" east a distance of 74.76 feet to a point, said point being THE
TRUE POINT OF BEGINNING.
FROM THE TRUE POINT OF BEGINNING THUS ESTABLISHED proceed thence in a
northeasterly direction along the aforesaid easternmost right-of-way line north
21(degree)19'11" west a distance of 7.91 feet to a point; proceed thence in a
northeasterly direction along the aforesaid easternmost right-of-way line north
23(degree)34'11" east a distance of 38.38 feet to a point; proceed thence in a
northeasterly direction along the aforesaid easternmost right-of-way line north
40(degree)15'17" east a distance of 62.82 feet to a point; proceed thence in a
northeasterly direction along the aforesaid easternmost right-of-way line north
39(degree)15'08" east a distance of 49.32 feet to a point; thence leave said
right-of-way line and proceed thence south 48(degree)03'44" east a distance of
95.71 feet to a point; proceed thence south 13(degree)51'45" east a distance of
220.34 feet to a point; proceed thence south 76(degree)11'25" west a distance of
74.14 feet to a point; proceed thence north 74(degree)31'03" west a distance of
62.79 feet to a point; proceed thence south 31(degree)11'25" west a distance of
3.77 feet to a point; proceed thence in a northwesterly direction along the arc
of a curve to the right, an arc distance of 131.99 feet to a point, said arc
being subtended by a chord 131.97 feet in length and bearing north
26(degree)58'00" west to a point; proceed thence north 21(degree)19'11" west a
7
EXHIBIT 'A'
<PAGE> 11
distance of 38.37 feet to a point; said point being THE TRUE POINT OF BEGINNING,
said tract or parcel of land being more particularly shown as "Phase III" on
that certain survey prepared by Michael F. Lawler, Georgia Registered Land
Surveyor no. 1946, prepared for Overseas Partners Capital Corp., dated December
20, 1993, last revised August 27, 1996, and bearing file no. 93153, which survey
is incorporated herein by this reference.
LESS AND EXCEPT that portion of the above property conveyed by that certain
Limited Warranty Deed from R-H Associates Bldg. III Corp., a Georgia corporation
to the Department of Transportation of the State of Georgia, dated April 4,
1989, filed for record July 19, 1989 at 9:30 a.m., recorded in Deed Book 12667,
Page 222, aforesaid Records.
TOGETHER WITH all easements appurtenant to the above property created by
the following:
(a) Parking Deck and Easement Agreement among Michael G. Carlos, George C.
Carlos, Andrew C. Carlos and R-H Building Partners, Ltd., dated July 15, 1981,
recorded at Deed Book 7903, page 165, Fulton County Records, as amended by
Amendment of Parking Deck and Easement Agreement dated July 15, 1981, recorded
at Deed Book 7903, page 385, said Amendment having been terminated by Agreement
dated September 20, 1982, recorded at Deed Book 8255, page 475, as further
amended by Second Amendment to Parking Deck and Easement Agreement dated July
18, 1985, recorded at Deed Book 9618, page 37, and Third Amendment to Parking
Deck and Easement Agreement dated as of July 18, 1985, recorded in Deed Book
10290, page 389 and Declaration of Release dated December 22, 1986, recorded at
Deed Book 10561, page 358, aforesaid records, as further amended by Fourth
Amendment to Parking Deck and Easement Agreement dated a of August 11, 1988,
recorded in Deed Book 11790, page 76, aforesaid records.
(b) Reciprocal Easement Agreement among Atlanta Financial Center Associates, R-H
Associates Bldg. II Corp. and Robinson-Humphrey Properties, Inc., dated July 18,
1985, recorded in Deed Book 9618, page 68, aforesaid records, as amended by
First Amendment to Reciprocal Easement Agreement dated as of July 18, 1985,
recorded at Deed Book 10290, page 411, as further amended by Declaration of
Release dated December 22, 1986, recorded at Deed Book 10561, page 358,
aforesaid records, as amended by Second Amendment to Reciprocal Easement
Agreement dated as of August 11, 1988, recorded in Deed Book 11790, page 69,
aforesaid records.
(c) Agreement among R-H Associates Bldg. II Corp., Atlanta Financial Center
Associates, Robinson-Humphrey Properties, Inc. and Department of Transportation
of State of Georgia, dated July 18, 1985, recorded at Deed Book 9618, page 145,
aforesaid records, as amended by Agreement dated as of July 18, 1985, recorded
at Deed Book 10290, page 289; the interest of R-H Associates Bldg. II Corp.
thereunder having been assigned to Two Atlanta Financial Center Associates by
that certain Assignment and Assumption (DOT Agreements), dated July 28, 1987,
recorded in Deed Book 10973, page 179, aforesaid records.
8
EXHIBIT 'A'
<PAGE> 12
(d) Encroachment Easement Agreement by and between Robinson-Humphrey Properties,
Inc. and Two Atlanta Financial Center Associates dated December 24, 1987,
recorded at Deed Book 11269, page 265, aforesaid records.
(e) Agreement Regarding Georgia 400 Highway Extension among R-H Associates Bldg.
II Corp., Robinson-Humphrey Properties, Inc., Atlanta Financial Center
Associates, Trustees of Mony Mortgage Investors and The Mutual Life Insurance
Company of New York, dated as of July 18, 1985, recorded at Deed Book 9623, page
75, aforesaid records, as amended by First Amendment to Agreement Regarding
Georgia 400 Highway Extension dated as of July 18, 1985, recorded at Deed Book
10290, page 419, aforesaid records; the interest of RH Associates Bldg. II Corp.
thereunder having been assigned to Two Atlanta Financial Center Associates by
that certain Assign ment and Assumption (DOT Agreements), dated July 28, 1987,
recorded in Deed Book 10973, page 179, aforesaid records.
(f) Limited Warranty Deed from Robinson-Humphrey Properties, Inc. to Department
of Transportation of State of Georgia, dated July 18, 1985, recorded at Deed
Book 9618, page 288, aforesaid records, as corrected by Corrective Limited
Warranty Deed dated as of July 18, 1985, recorded at Deed Book 10290, page 372,
aforesaid records.
(g) Limited Warranty Deed from R-H Associates Bldg. III Corp., a Georgia
corporation to the Department of Transportation of the State of Georgia, dated
April 4, 1989, filed for record July 19, 1989 at 9:30 am., recorded in Deed Book
12667, page 222, aforesaid records.
PHASE IV
All that tract or parcel of land lying and being in Land Lot 45, 17th District,
City of Atlanta, Fulton County, Georgia and being more particularly described as
follows:
TO FIND THE TRUE POINT OF BEGINNING begin at a point formed by the intersection
of the easternmost right-of-way line of Peachtree Road (a variable right-of-way
being 80 feet at this point) with the northernmost right-of-way line of Highland
Drive (a 50-foot right-of-way and proceed thence in a northeasterly direction
along the aforesaid easternmost right-of-way line a distance of 365.1 feet;
proceed thence along the aforesaid easternmost right-of-way line, north
13(degree)43'08" east a distance of 37.39 feet to a point; proceed thence in a
northeasterly direction along the aforesaid easternmost right-of-way line,
following the curvature thereof to the right, an arc distance of 179.12 feet to
a point, said arc being subtended by a chord 178.99 feet in length and bearing
north 20(degree)26'46" east; proceed thence in a northeasterly direction along
the aforesaid easternmost right-of-way line north 26(degree)16'11" east a
distance of 48.21 feet to a point; proceed thence in a northeasterly direction
along the aforesaid easternmost right-of-way line north 28(degree)17'14" east a
distance of 48.18 feet to a point; proceed thence in a northeasterly direction
along the aforesaid easternmost right-of-way line north 30(degree)11'09" east a
distance of 48.15 feet to a point; proceed thence in a northeasterly direction
along the aforesaid easternmost right-of-way line north 32(degree)20'44" east a
distance of 57.74 feet to a point; proceed thence in a northeasterly direction
along the aforesaid easternmost right-of-way line north 55(degree)03'02" east a
distance
9
EXHIBIT 'A'
<PAGE> 13
of 8.44 feet to a point; proceed thence in a northeasterly direction along the
aforesaid easternmost right-of-way line north 55(degree)32'07" east a distance
of 18.02 feet to a point; proceed thence in a southeasterly direction along the
aforesaid easternmost right-of-way line, following the curvature thereof to the
left, an arc distance of 7.77 feet to a point, said arc being subtended by a
chord 7.77 feet in length and bearing south 31(degree)52'33" east, said point
being THE TRUE POINT OF BEGINNING.
FROM THE TRUE POINT OF BEGINNING THUS ESTABLISHED proceed thence in a
northeasterly direction along the aforesaid easternmost right-of-way line north
35(degree)10'06" east a distance of 74.16 feet to a point; proceed thence in a
southeasterly direction along the aforesaid easternmost right-of-way line south
58(degree)48'33" east a distance of 6.36 feet to a point; proceed thence in a
northeasterly direction along the aforesaid easternmost right-of-way line north
31(degree)11'26" east a distance of 10.05 feet to a point; proceed thence in a
southeasterly direction along the aforesaid easternmost right-of-way line
south 58(degree)48'29" east a distance of 19 feet to a point; proceed thence in
a northeasterly direction along the aforesaid easternmost right-of-way line
north 31(degree)11'26" east a distance of 24.83 feet to a point; proceed thence
in a northwesterly direction along the aforesaid easternmost right-of-way line
north 58(degree)48'44" west a distance of 19 feet to a point; proceed thence in
a northeasterly direction along the aforesaid easternmost right-of-way line
north 31(degree)11'23" east a distance of 22.01 feet to a point; proceed thence
in a northeasterly direction along the aforesaid easternmost right-of-way line
north 40(degree)58'56" east a distance of 74.76 feet to a point; thence leave
said right-of-way line and proceed thence south 21(degree)19'11" east a distance
of 38.37 feet to a point; proceed thence in a southeasterly direction along the
arc of a curve to the left, an arc distance of 131.99 feet to a point, said arc
being subtended by a chord 131.97 feet in length and bearing south
26(degree)58'00" east; proceed thence south 31(degree)11'25" west a distance of
193.49 feet to a point; proceed thence in a northwesterly direction along the
arc of a curve to the right, an arc distance of 14.05 feet to a point, said arc
being subtended by a chord 14.05 feet in length and bearing north
31(degree)08'45" west, proceed thence in a northwesterly direction along the arc
of a curve to the right, an arc distance of 171.77 feet to a point, said arc
being subtended by a chord 171.77 feet in length and bearing north
32(degree)46'15" west, said point being located on the aforesaid easternmost
right-of-way line and being THE TRUE POINT OF BEGINNING, said tract or parcel of
land being more particularly shown as "Phase IV" on that certain survey by
Mallett & Associates bearing the seal and certification of Michael F. Lawler,
Georgia Registered Land Surveyor No. 1946, prepared for Overseas Partners
Capital Corp., dated December 20, 1993, last revised August 27, 1996, and
bearing file no. 93153, which survey is incorporated herein by this reference.
LESS AND EXCEPT that portion of the above property conveyed by the following:
(1) Limited Warranty Deed from Robinson-Humphrey Properties, Inc. to the
Department of Transportation of the State of Georgia, dated July 18, 1985,
recorded in Deed Book 9618, Page 288, aforesaid Records; as corrected by that
certain Corrective Warranty Deed recorded in Deed Book 10290, Page 372,
aforesaid Records.
10
EXHIBIT 'A'
<PAGE> 14
(2) Limited Warranty Deed from Robinson-Humphrey Properties, Inc., a Georgia
corporation to the Department of Transportation of the State of Georgia, dated
April 4, 1989, filed for record July 19, 1989 at 9:30 a.m., recorded in Deed
Book 12667, page 163, aforesaid records.
(3) Limited Warranty Deed from Robinson-Humphrey Properties, Inc., a Georgia
corporation to the Department of Transportation of the State of Georgia, dated
April 4, 1989, filed for record July 19, 1989 at 9:30 a.m., recorded in Deed
Book 12667, Page 192, aforesaid Records.
TOGETHER WITH all easements appurtenant to the above property created by the
following:
(a) Parking Deck and Easement Agreement by and among Michael C. Carlos, George
C. Carlos, Andrew C. Carlos, and R-H Building Partners, Ltd., dated July 15,
1981, recorded in Deed Book 7903, Page 165, aforesaid Records; as amended by
that certain Amendment of Parking Deck and Easement Agreement, dated July 15,
1981, recorded in Deed Book 7903, Page 385, aforesaid Records (said Amendment
having been terminated by Agreement dated September 20, 1982, recorded in Deed
Book 8255, Page 475, aforesaid Records); as further amended by Second Amendment
to Parking Deck and Easement Agreement, dated July 18, 1985, recorded in Deed
Book 9618, Page 37, aforesaid Records; as further amended by that certain Third
Amendment to Parking Deck and Easement Agreement, dated as of July 18, 1985,
recorded in Deed Book 10290, Page 389, aforesaid Records; as further amended by
that certain Declaration of Release dated December 22, 1986, recorded in Deed
Book 10561, Page 358, aforesaid Records; as further amended by that certain
Fourth Amendment to Parking Deck and Easement Agreement, dated as of August 11,
1988, recorded in Deed Book 11790, Page 76, aforesaid Records.
(b) Reciprocal Easement Agreement by and among Robinson-Humphrey Properties,
Inc., R-H Associates Bldg. II Corp. and Atlanta Financial Center Associates,
dated July 18, 1985, recorded in Deed Book 9618, Page 68, aforesaid Records; as
amended by that certain First Amendment to reciprocal easement Agreement, dated
as of July 18, 1985, recorded in Deed Book 10290, Page 411, aforesaid Records;
as further amended by that certain Declaration of Release, dated December 22,
1986, recorded in Deed Book 10561, Page 358, aforesaid Records; as further
amended by that certain Second Amendment to Reciprocal Easement agreement, dated
as of August 11, 1988, recorded in Deed Book 11790, Page 69, aforesaid Records.
(c) Agreement by and among R-H Associates Bldg. II Corp., Atlanta Financial
Center Associates, Robinson-Humphrey Properties, Inc. and the Department of
Transportation of the State of Georgia, dated July 18, 1985, recorded in Deed
Book 9618, Page 145, aforesaid Records; as amended by that certain Amendment to
Agreement dated as of July 18, 1985, recorded in Deed Book 10290, Page 289,
aforesaid Records; the interest of R-H Associates Bldg. II Corp. thereunder
having been assigned to Two Atlanta Financial Center Associates by that certain
Assignment and Assumption (DOT Agreements), dated July 28, 1987, recorded in
Deed Book 10973, Page 179, aforesaid Records.
11
EXHIBIT 'A'
<PAGE> 15
(d) Agreement Regarding Georgia 400 Extension, by and among R-H Associates Bldg.
II Corp., Robinson-Humphrey Properties, Inc., Atlanta Financial Center
Associates, MONY Mortgage Investors, and The Mutual Life Insurance Company of
New York, dated July 18, 1985, recorded in Deed Book 9623, Page 75, aforesaid
Records; as amended by that certain First Amendment to Agreement Regarding
Georgia Highway 400 Extension, dated as of July 18, 1985, recorded in Deed Book
10290, Page 419, aforesaid Records; the interest of R-H Associates Bldg. II
Corp. thereunder having been assigned to Two Atlanta Financial Center Associates
by that certain Assignment and Assumption (DOT Agreements) dated July 28, 1987,
recorded in Deed Book 10973, Page 179, aforesaid Records.
(e) Limited Warranty Deed from Robinson-Humphrey Properties, Inc. to the
Department of Transportation of the State of Georgia, dated July 18, 1985,
recorded in Deed Book 9618, Page 288, aforesaid Records; as corrected by that
certain Corrective Warranty Deed recorded in Deed Book 10290, Page 372,
aforesaid Records.
(f) Limited Warranty Deed from Robinson-Humphrey Properties, Inc., a Georgia
corporation to the Department of Transportation of the State of Georgia, dated
April 4, 1989, filed for record July 19, 1989 at 9:30 a.m., recorded in Deed
Book 12667, Page 163, aforesaid Records.
(g) Limited Warranty Deed from Robinson-Humphrey Properties, Inc., a Georgia
corporation to the Department of Transportation of the State of Georgia, dated
April 4, 1989, filed for record July 19, 1989 at 9:30 a.m., recorded in Deed
Book 12667, Page 192, aforesaid Records.
12
EXHIBIT 'A'
<PAGE> 16
SCHEDULE OF EXISTING LEASES
South Tower:
1. Restaurant Management Agreement between The Mutual Life Insurance
Company of New York (as Owner) and American Food Management, Inc. (as
Manager) dated November 27, 1995.
2. Lease Agreement (South Tower) between The Mutual Life Insurance Company
of New York and Patricia Moscoso and Olga Papandrea d/b/a Atlanta's
Flower Mart dated August 26, 1994; Unconditional Guaranty of Lease by
Patricia Moscoso and Olga Papandrea d/b/a Atlanta's Flower Mart dated
March 6, 1995; as assigned by Assignment of Lease to Buckhead Florist,
Inc. dated March 7, 1995; Certificate as to Term of Lease dated April
5, 1995, amended by First Amendment to Lease between The Mutual Life
Insurance Company of New York as Landlord and Buckhead Florist, Inc.
dated February 11, 1996.
3. Lease Agreement (South Tower) between Atlanta Financial Center
Associates and Fellows, Johnson, Davis & Labriola dated January 4,
1993; Certificate as to Term of Lease dated March 18, 1993.
4. Lease Agreement (South Tower) between Atlanta Financial Center
Associates and Gallup, Inc. dated October 12, 1992; Certificate as to
Term of Lease dated November 23, 1992.
5. Lease Agreement (South Tower) between Atlanta Financial Center
Associates and Higgins & Dubner dated April 29, 1992; Certificate as to
Term of Lease dated June 19, 1992; amended by First Amendment between
The Mutual Life Insurance Company of New York and Higgins & Dubner
dated January 24, 1995.
6. Lease Agreement (South Tower) between Atlanta Financial Center
Associates and Hughes Advertising, Inc. dated November 30, 1993.
7. Lease Agreement (South Tower) between The Mutual Life Insurance Company
of New York and Edward Strickland d/b/a Image Shine dated August 10,
1995; Certificate as to Term of Lease dated December 21, 1995.
8. Lease Agreement (South Tower) between The Mutual Life Insurance Company
of New York and R.E. Kendrick & Associates, Inc. dated July 13, 1995;
Certificate as to Term of Lease dated August 28, 1995.
9. Lease Agreement between The Mutual Life Insurance Company of New York
and Metrex Corporation d/b/a Metropolitan Fiber Systems of Atlanta,
Inc. dated December 8, 1994.
EXHIBIT 'B'
<PAGE> 17
10. Lease Agreement (South Tower) between The Mutual Life Insurance Company
of New York and MCImetro Access Transmission Services, Inc. dated
December 21, 1995.
11. Amended and Restated Lease Agreement between The Mutual Life Insurance
Company of New York and The Robinson-Humphrey Company, Inc. dated
November 15, 1994; amended by Modification to Amended and Restated
Lease Agreement dated November 30, 1994.
12. Lease Agreement (South Tower) between Atlanta Financial Center
Associates and Martin Rubin and Robert Wildau dated July 10, 1989;
amended by First Amendment to Lease Agreement and Lease Extension
Agreement dated August 31, 1993; Certificate as to Term of Lease
(undated).
13. Lease Agreement between Atlanta Financial Center Associates and Ruys &
Company dated March 9, 1984; amended by First Amendment to Lease
Agreement dated July 7, 1986; further amended by Second Amendment to
Lease Agreement dated March 22, 1988; as further amended by Third
Amendment to Lease Agreement dated September 23, 1988; as further
amended by Fourth Amendment to Lease Agreement dated February 6, 1988
[sic]; as further amended by Fourth Amendment [sic] to Lease Agreement
dated November 16, 1988; Certificate as to Term of Lease dated February
6, 1989; as amended by Fifth Amendment to Lease Agreement dated April
6, 1993; Storage Space Rental Agreement between Two Atlanta Financial
Center Associates and Ruys & Company dated May 17, 1989; as amended by
Amendment to Storage Space Rental Agreement dated August 2, 1990.
14. Amendment to and Restatement of Lease Agreement between The Mutual Life
Insurance Company of New York and Sedgwick James of Georgia, Inc. dated
January 1, 1995; Storage Space Rental Agreement dated June 15, 1993.
15. Lease Agreement between Atlanta Financial Center Associates and
Ackerman & dated November 8, 1983; amended by First Amendment and
Substitution of Undisclosed Principals between Atlanta Financial Center
Associates and Fortson and White dated December 19, 1983; further
amended by Second Amendment to Lease Agreement dated November 11, 1985;
further amended by Third Amendment to Lease Agreement dated April 28,
1988; further amended by Fourth Amendment to Lease Agreement dated
December 1, 1989; further amended by Fifth Amendment to Lease Agreement
and Lease Extension and Expansion Agreement with White, Smith, Howard &
Ajax (f/k/a Fortson & White), as Tenant, dated June 8, 1993; further
amended by Sixth Amendment to Lease Agreement between The Mutual Life
Insurance Company of New York as Landlord and Smith, Howard & Ajax
dated March 7, 1995; Certificate as to Term of Lease [undated]; Storage
Space Rental Agreement between The Mutual Life Insurance Company of New
York and Smith, Howard & Ajax dated February 1, 1996
2
EXHIBIT 'B'
<PAGE> 18
16. Lease Agreement between The Mutual Life Insurance Company of New York
and Teknion, Inc. dated March 29, 1996; Certificate as to Term of Lease
dated July 1, 1996.
17. Lease Agreement (South Tower) between The Mutual Life Insurance Company
of New York and Titus & Donnelly, Inc. dated April 6, 1994.
18. Lease Agreement (South Tower) between The Mutual Life Insurance Company
of New York and Today's Temporary, Inc. dated June 16, 1994;
Certificate as to Term of Lease dated August 25, 1994.
North Tower:
1. Lease Agreement between The Mutual Life Insurance Company of New York
and ARES, Inc. dated February 1, 1996.
2. Lease Agreement (North Tower) between R-H Associates Bldg. III Corp.
and Bankers Trust Company dated June 28, 1990; Certificate as to Term
of Lease dated September 17, 1990; Sublease between Bankers Trust
Company and Bottomley & Associates, Inc. dated September 30, 1993 with
Consent to Sublease by R-H Associates Bldg. III Corp. dated November 3,
1993.
3. Lease Agreement (North Tower) between R-H Associates Bldg. III Corp.
and Beckman Instruments, Inc. dated June 3, 1993; Certificate as to
Term of Lease dated November 23, 1993.
4. Lease Agreement between The Mutual Life Insurance Company of New York
and BellSouth Personal Communications, Inc. dated April 7, 1996.
5. Lease Agreement (North Tower) between The Mutual Life Insurance Company
of New York and BellSouth Telecommunications, Inc. dated September 12,
1995.
6. Lease Agreement (North Tower) between R-H Associates Bldg. III Corp.
and Bleke & Boyd, P.C., dated September 9, 1992; Certificate as to Term
of Lease dated January 18, 1993.
7. Lease Agreement (North Tower) between R-H Associates Bldg. III Corp.
and Walton C. Bryde & Associates, P.C., dated October 10, 1989;
Certificate as to Term of Lease dated December 15, 1990; amended by
Amendment and Extension of Lease Agreement dated March 11, 1992;
Unconditional Guaranty of Lease by Walton C. Bryde dated April 7, 1992;
Sublease Agreement to John T. Clegg dated December 1, 1995 with Consent
to Sublease by The Mutual Life Insurance Company of New York dated
November 30, 1995.
3
EXHIBIT 'B'
<PAGE> 19
8. Agreement between The Mutual Life Insurance Company of New York and
Corporate Sports Unlimited, Inc. dated January 1, 1995.
9. Lease Agreement (North Tower) between R-H Associates Bldg. III Corp.
and Business Telecom, Inc. dated August 19, 1994 [Suite 1160]; amended
by First Amendment to Lease Agreement dated December 8, 1994;
Certificate as to Term of Lease dated March 13, 1995; Sublease to
Commodity Marketing Company, Inc. dated April 5, 1996 with Consent to
Sublease by The Mutual Life Insurance Company of New York dated May 20,
1996.
10. Lease Agreement (North Tower) between R-H Associates Bldg. III Corp.
and Business Telecom, Inc. dated August 19, 1994 [Suite 530];
Certificate as to Term of Lease dated March 13, 1995; Sublease to
American Management Institute dated July 30, 1996 with Consent to
Sublease by The Mutual Life Insurance Company of New York dated July
30, 1996.
11. Lease Agreement (North Tower) between R-H Associates Bldg. III Corp.
and Chase Communications, Inc. d/b/a Chambers & Asher SPEECHWORKS dated
April 26, 1990; Certificate as to Term of Lease dated July 12, 1990;
amended by First Amendment to Lease Agreement dated January 7, 1994.
12. Lease Agreement (North Tower) between R-H Associates Bldg. III Corp.
and Christian Dior Perfumes, Inc. dated January 3, 1991; Certificate as
to Term of Lease dated January 31, 1991; Lease amended by First
Amendment to Lease Agreement and Lease Extension Agreement dated
December 31, 1993. Lease Agreement (North Tower) between The Mutual
Life Insurance Company of New York and City Capital Corporation dated
July 24, 1995; Certificate as to Term of Lease dated September 12,
1995.
14. Lease Agreement (North Tower) between The Mutual Life Insurance Company
of New York and Wayne Helms, P.C. dated January 30, 1995; Certificate
as to Term of Lease dated March 7, 1995.
15. Lease Agreement (North Tower) between R-H Associates Bldg. III Corp.
and Gerdes Huff Investments dated August 14, 1991; Certificate as to
Term of Lease dated ________________; Lease amended by First Amendment
to Lease with The Mutual Life Insurance Company of New York, as
Landlord, dated November 14, 1994; Certificate as to Term of Lease
dated April 10, 1995.
16. Lease Agreement between The Mutual Life Insurance Company of New York
and Interim Accounting Professionals of Atlanta, Inc. dated March 26,
1996; Guaranty by Ronald Ramsey dated February 28, 1996; Certificate as
to Term of Lease dated May 14, 1996.
4
EXHIBIT 'B'
<PAGE> 20
17. Lease Agreement between R-H Associates Bldg. III Corp. and
KnowledgeWare, Inc. dated July 26, 1991; Certificate as to Term of
Lease dated January 10, 1992; amended by First Amendment to Lease
Agreement between The Mutual Life Insurance Company of New York and
Sterling Software (Southern), Inc. dated December 31, 1994; Sublease
Agreement to Columbia/HCA Healthcare Corporation dated October 24,
1994 and Consent to Sublease by The Mutual Life Insurance Company of
New York dated October 24, 1994; Sublease Agreement to BellSouth
Personal Communications, Inc. dated September 20, 1994 and Consent to
Sublease by The Mutual Life Insurance Company of New York dated
September 20, 1994; Substitute Lease Agreement (North Tower) between
The Mutual Life Insurance Company of New York and BellSouth Personal
Communications, Inc., dated September 20, 1994 a affected by Landlord
Non-Disturbance and Attornment Agreement between Knowledgeware, Inc.,
The Mutual Life Insurance Company of New York and BellSouth Personal
Communications, Inc. dated September 20, 1994; Guaranty of Substitute
Lease Agreement by BellSouth Enterprises, Inc., dated September 20,
1994; First Amendment to Substitute Lease Agreement dated October 21,
1994.
18. Lease Agreement (North Tower) between R-H Associates Bldg. III Corp.
and Fisher Transportation, Ltd. d/b/a London Livery, Ltd. dated March
11, 1994; Certificate as to Term of Lease dated June 2, 1994.
19. Lease Agreement (North Tower) between R-H Associates Bldg. III Corp.
and Mutual of America Life Insurance dated May 23, 1994; Certificate as
to Term of Lease dated , 1994.
20. Lease Agreement (North Tower) between The Mutual Life Insurance Company
of New York and Peoplesoft, Inc. dated December 30, 1994.
21. Lease Agreement (North Tower) between R-H Associates Bldg. III Corp.
and The Prudential Insurance Company of America dated July 25, 1994;
Certificate as to Term of Lease with The Mutual Life Insurance Company
of New York as Landlord dated October 17, 1994.
22. Lease Agreement (North Tower) between The Mutual Life Insurance Company
of New York and Robert D. Wildstein, P.C. dated April 25, 1995;
Unconditional Guaranty of Lease by Robert D. Wildstein dated April 25,
1995; Certificate as to Term of Lease dated July 14, 1995.
23. Lease Agreement between The Mutual Life Insurance Company of New York
and Mark Rowland, an individual d/b/a Rowland & Company, dated June 3,
1996.
24. Lease Agreement (North Tower) between R-H Associates Bldg. III Corp.
and Shore & Azimov, P.C. dated March 12, 1991; Certificate as to Term
of Lease dated August 28, 1991; Sublease to Technical Products Group
Inc. dated June ___, 1995 with Consent to Sublease by The Mutual Life
Insurance Company of New York dated July 19, 1995.
5
EXHIBIT 'B'
<PAGE> 21
25. Lease Agreement (North Tower) between R-H Associates Bldg. III Corp.
and Spix, Krupp & Reece, P.C. dated November 22, 1989; Certificate as
to Term of Lease dated December 27, 1990; Certificate as to Term of
Lease dated January 2, 1991; amended by First Amendment to Lease
Agreement with The Mutual Life Insurance Company of New York as
Landlord dated March 1, 1995.
26. Lease Agreement (North Tower) between R-H Associates Bldg. III Corp.
and E.R. Squibb & Sons, Inc. dated August 26, 1994; Certificate as to
Term of Lease with The Mutual Life Insurance Company of New York as
Landlord dated November 10, 1994.
27. Lease Agreement (North Tower) between The Mutual Life Insurance Company
of New York and Transcend Services, Inc. dated April 10, 1995.
28. Lease Agreement (North Tower) between R-H Associates Bldg. III Corp.
and The Thomas Financial Group dated November 9, 1989; amended by First
Amendment to Lease Agreement dated December 4, 1989; Certificate as to
Term of Lease dated February 27, 1990; further amended by Second
Amendment to Lease Agreement dated March 9, 1990; further amended by
Third Amendment to Lease Agreement dated March 20, 1991; Certificate as
to Term of Lease dated July 11, 1991; further amended by Fourth
Amendment to Lease Agreement dated September 1, 1994; further amended
by Fifth Amendment to Lease Agreement with The Mutual Life Insurance
Company of New York as Landlord dated October 21, 1995.
29. Lease Agreement (North Tower) between R-H Associates Bldg. III Corp.
and The Watkins Insurance Group, Inc. dated August 14, 1991;
Certificate as to Term of Lease dated June 17, 1992; Storage Space
Rental Agreement [East Tower] dated May 1, 1993; amended by First
Amendment to Lease Agreement with The Mutual Life Insurance Company of
New York as Landlord dated December 21, 1995; Certificate as to Term of
Lease dated January 26, 1996.
30. Lease Agreement (North Tower) between The Mutual Life Insurance Company
of New York and The Wilson Law Firm, P.C. dated December 1, 1994;
Unconditional Guaranty of Lease by L. Matt Wilson dated December 1,
1994.
31. Lease Agreement (North Tower) between R-H Associates Bldg. III Corp.
and Yankelovich, Skelly & White/Clancy, Shulman, Inc. d/b/a Yankelovich
Clancy Shulman dated May 18, 1992; amended by First Amendment to Lease
Agreement dated July 9, 1992; Certificate as to Term of Lease dated
November 23, 1992; further amended by Second Amendment to Lease
Agreement with The Mutual Life Insurance Company of New York as
Landlord dated May 31, 1995.
East Tower:
1. Lease Agreement (East Tower) between Two Atlanta Financial Center
Associates and Air One, Inc. dated April 20, 1990; amended by First
Amendment to Lease Agreement
6
EXHIBIT 'B'
<PAGE> 22
dated May 8, 1990; further amended by Second Amendment to Lease
Agreement and Extension of Lease Term dated February 1, 1993; Storage
Space Rental Agreement with The Mutual Life Insurance Company of New
York as Landlord dated November 6, 1995; further amended by Third
Amendment to Lease Agreement with The Mutual Life insurance Company of
New York as Landlord dated March 19, 1996; further amended by Fourth
Amendment to Lease Agreement dated May 22, 1996; Sublease Agreement to
Fellows, Johnson, Davis & LaBriola dated May 6, 1996 with Consent to
Sublease by The Mutual Life Insurance Company of New York dated May 20,
1996; Certificate as to Term of Lease dated June 17, 1996.
2. Lease Agreement (East Tower) between The Mutual Life Insurance Company
of New York and Alliance Technology Management Company dated March 28,
1994; amended by First Amendment to Lease Agreement dated April 28,
1994; Certificate as to Term of Lease dated June 2, 1994.
3. Lease Agreement (East Tower) between Two Atlanta Financial Center
Associates and Robert J. Allio & Associates, Inc. dated August 16,
1993; Certificate as to Term of Lease dated January 23, 1994.
4. Lease Agreement (East Tower) between Two Atlanta Financial Center
Associates and AREL Group, Inc. dated December 9, 1993; Storage Space
Rental Agreement with The Mutual Life Insurance Company of New York as
Landlord dated July 12, 1995.
5. Lease Agreement between The Mutual Life Insurance Company of New York
and Rosemary S. Armstrong and Michael W. Broadbear dated April 3, 1996;
Certificate as to Term of Lease dated May 21, 1996.
6. Lease Agreement between The Mutual Life Insurance Company of New York
and Paula Lorenz d/b/a Atlanta Auto Salon dated December 20, 1995;
Certificate as to Term of Lease dated January 15, 1996.
7. [Intentionally omitted]
8. Lease Agreement (East Tower) between The Mutual Life Insurance Company
of New York and Brookdale Realty Services dated October 3, 1994;
amended by First Amendment to Lease Agreement dated November 11, 1994;
Certificate as to Term of Lease dated February 3, 1995; further amended
by Second Amendment to Lease Agreement with Brookdale Realty Services,
LLC as Tenant dated May 29, 1996; Third Amendment to Lease, undated,
executed by Tenant only.
9. Lease Agreement (East Tower) between R-H Associates Bldg. II Corp. and
Buckhead Management Corporation dated September 19, 1986; Private Club
Consulting Agreement between Buckhead Management Corporation and Club
Corporation of America dated September 19, 1986; Lease amended by First
Amendment to Lease Agreement dated November 26, 1986; further amended
by Second Amendment to Lease Agreement dated September 7, 1988; further
amended by Third Amendment to
7
EXHIBIT 'B'
<PAGE> 23
Lease Agreement with Two Atlanta Financial Center Associates as
Landlord and The Buckhead Club, inc. as Tenant dated July 29, 1989;
Letter Agreement dated February 20, 1990; Storage Space Rental
Agreement dated January 1, 1993.
10. Storage Space Rental Agreement between The Mutual Life Insurance
Company of New York and Patricia Moscoso and Olga Papandreou d/b/a
Buckhead Florist, Inc. f/k/a Atlanta Flower Mart dated January 1, 1995.
11. Lease Agreement between The Mutual Life Insurance Company of New York
and California Compensation Insurance Company d/b/a Business Insurance
Company, Inc. dated March 7, 1996; amended by First Amendment to Lease
Agreement dated April 25, 1996.
12. Lease Agreement (East Tower) between Two Atlanta Financial Center
Associates and Coleman Management Consultants, Inc. dated October 18,
1993; Storage Space Rental Agreement with The Mutual Life Insurance
Company of New York as Landlord dated October ____, 1994.
13. Lease Agreement (East Tower) between The Mutual Life Insurance Company
of New York and Joseph G. Davis, Jr. d/b/a Davis & Doster dated July
24, 1995; Unconditional Guaranty of Lease by Joseph G. Davis, Jr. dated
June 13, 1995; Certificate as to Term of Lease dated November 8, 1995.
14. Lease Agreement (East Tower) between The Mutual Life Insurance Company
of New York and Denon Corp. (USA) dated November 8, 1995; Certificate
as to Term of Lease dated February 14, 1996.
15. Lease Agreement (East Tower) between Two Atlanta Financial Center
Associates and The Disney Channel d/b/a The Disney Channel Company
dated October 28, 1987; Certificate as to Term of Lease dated January
22, 1988; amended by Modification to Lease and Extension Agreement
dated February 1, 1992; further amended by Second Amendment to Lease
Agreement dated October 16, 1992; Guaranty of Lease by The Walt Disney
Company, dated October 29, 1987.
16. Lease Agreement (East Tower) between Two Atlanta Financial Center
Associates and Duncanson & Holt, Inc. dated January 29, 1991;
Certificate as to Term of Lease dated October 23, 1995; amended by
First Amendment to Lease Agreement with The Mutual Life Insurance
Company of New York as Landlord dated September 6, 1995.
17. Lease Agreement (East Tower) between Two Atlanta Financial Center
Associates and EBC Enterprise AFC, Inc. dated August 27, 1991;
Unconditional Guaranty of Lease by Executive Business Centers, Inc.
dated August 21, 1991; Certificate as to Term of Lease, undated;
amended by First Amendment to Lease Agreement with The Mutual Life
Insurance Company of New York as Landlord dated April 14, 1994.
8
EXHIBIT 'B'
<PAGE> 24
18. Lease Agreement (East Tower) between The Mutual Life Insurance Company
of New York and Enterprise Capital Management, Inc. dated August 18,
1994; Certificate as Term of Lease dated October 23, 1995; First
Amendment to Lease dated July 18, 1996.
19. Lease Agreement (East Tower) between The Mutual Life Insurance Company
of New York and Federal Express Corporation dated October 12, 1994;
Certificate as to Term of Lease dated August 28, 1995.
20. Lease Agreement (East Tower) between Two Atlanta Financial Center
Associates and Cascino & Purcell, Inc. dated February 4, 1988; amended
by First Amendment to Lease Agreement dated July 16, 1990; further
amended by Second Amendment to Lease Agreement and Lease Extension and
Expansion Agreement with Cascino Purcell & Freebairn, Inc. f/k/a
Cascino & Purcell, Inc. as Tenant dated April 10, 1992; further amended
by Third Amendment to Lease Agreement with Freebairn & Company as
Tenant and The Mutual Life Insurance Company of New York as Landlord
dated January 1, 1995; further amended by Fourth Amendment to Lease
Agreement with Freebairn and Company [f/k/a Casino, Purcell & Freebairn
Inc.] dated September 12, 1995; Storage Space Rental Agreement with R-H
Associates Bldg. III Corp. as Landlord and Freebairn and Company dated
November 24, 1993; Storage Space Rental Agreement with Freebairn and
Company as Tenant dated March 31, 1994; Certificate as to Term of Lease
dated October 23, 1995.
21. Lease Agreement (East Tower) between The Mutual Life Insurance Company
of New York and Gaiatech, Inc. dated November 1, 1995; Certificate as
to Term of Lease dated January 2, 1996.
22. Storage Space Rental Agreement between The Mutual Life Insurance
Company of New York and Gallup, Inc. dated January 4, 1996.
23. Lease Agreement (East Tower) between The Mutual Life Insurance Company
of New York and Haworth, Inc. dated September 25, 1995; Certificate as
to Term of Lease dated February 22, 1996.
24. Lease Agreement (East Tower) between Two Atlanta Financial Center
Associates and Wayne Helms, P.C. dated November 21, 1991; Certificate
as to Term of Lease dated April 10, 1992; Storage Space Rental
Agreement between The Mutual Life Insurance Company of New York and
Wayne Helms, P.C. dated October 1, 1994.
25. Lease Agreement between The Mutual Life Insurance Company of New York
and The Hogan Group, Inc. dated January 24, 1996; Certificate as to
Term of Lease dated February 28, 1996.
26. Lease Agreement (East Tower) between Two Atlanta Financial Center
Associates and HTG Corp. dated December 15, 1987; Lease Guaranty by
Holcombe T. Green dated January 5, 1988; amended by First Amendment to
Lease Agreement with H.T.G. Corp.
9
EXHIBIT 'B'
<PAGE> 25
as Tenant dated May 9, 1988; further amended by Second Amendment to
Lease Agreement dated November 2, 1989; assigned by Assignment of Lease
by H.T.G. Corp. to Holcombe T. Green dated March 7, 1994; further
amended by Third Amendment to Lease Agreement with Holcombe T. Green as
Tenant and The Mutual Life Insurance Company of New York as Landlord
dated March 7, 1994; Storage Space Rental Agreement dated March 31,
1994; further amended by Fourth Amendment to Lease Agreement dated
February 9, 1995; Certificate as to Term of Lease dated April 10, 1995.
27. Lease Agreement (East Tower) between Two Atlanta Financial Center
Associates and Industrial Developments International, Inc. dated
January 9, 1992; Certificate as to Term of Lease dated April 10, 1992;
amended by First Amendment to Lease Agreement with The Mutual Life
Insurance Company of New York as Landlord dated July 19, 1995; further
amended by Second Amendment to Lease dated March 23, 1996.
28. Lease Agreement (East Tower) between Two Atlanta Financial Center
Associates and S.M.M. Corporation d/b/a Joe May Valet dated September
22, 1992; amended by First Amendment to Lease Agreement with The Mutual
Life Insurance Company of New York as Landlord dated November 7, 1995;
Certificate as to Term of Lease dated December 11, 1995; Certificate as
to Term of Lease dated April 23, 1996.
29. Lease Agreement (East Tower) between Two Atlanta Financial Center
Associates and Amalia Moretti, Inc. d/b/a LaGioiosa USA dated January
17, 1992; Certificate as to Term of Lease dated February 4, 1992;
amended by First Modification to Lease and Extension Agreement dated
September 22, 1992; further amended by Second Amendment to Lease
Agreement with The Mutual Life Insurance Company of New York as
Landlord dated February 14, 1995; Storage Space Rental Agreement dated
March 17, 1994.
30. Lease Agreement (East Tower) between Two Atlanta Financial Center
Associates and Lamberth, Bonapfel, Cifelli & Willson, P.A. dated
December 29, 1989; amended by First Amendment to Lease Agreement with
The Mutual Life Insurance Company of New York as Landlord and Lamberth,
Bonapfel, Cifelli, Willson & Stokes, P.A. as Tenant dated October 17,
1994; Certificate as to Term of Lease dated August 8, 1995.
31. Lease Agreement (East Tower) between Two Atlanta Financial Center
Associates and Howard Weil Labouisse of Friedrichs, Inc. dated August
31, 1993; Certificate as to Term of Lease dated January 23, 1994;
assigned by Assignment of Lease to Legg Mason Wood Walker, Inc. dated
March 7, 1995 with Consent by The Mutual Life Insurance Company of New
York dated March 7, 1995; Sublease to J.P. Carey Enterprises, Inc.
dated October 24, 1995 with Consent to Sublease dated November 30,
1995.
10
EXHIBIT 'B'
<PAGE> 26
32. Lease Agreement between The Mutual Life Insurance Company of New York
and Main America Capital, L.C. dated April 12, 1996; Certificate as to
Term of Lease dated May 14, 1996.
33. Lease Agreement (East Tower) between Two Atlanta Financial Center
Associates and MidWest Employers Casualty Company dated July 29, 1992;
Certificate as to Term of Lease dated December 17, 1992.
34. Lease Agreement (East Tower) between Two Atlanta Financial Center
Associates and Milliman & Robertson, Inc. dated October 11, 1989;
amended by First Amendment to Lease Agreement with The Mutual Life
Insurance Company of New York as Landlord dated June 19, 1995;
Certificate as to Term of Lease dated November 2, 1995.
35. Lease Agreement (East Tower) between Two Atlanta Financial Center
Associates and Montag & Caldwell, Inc. dated December 9, 1991; amended
by First Amendment to Lease Agreement dated May 4, 1992; further
amended by Second Amendment to Lease Agreement with The Mutual Life
Insurance Company of New York as Landlord dated August 1, 1995;
Certificate as to Term of Lease dated September 13, 1995.
36. Lease Agreement (East Tower) between Two Atlanta Financial Center
Associates and Moore Copies, Inc. dated July 6, 1993; Certificate as to
Term of Lease dated January 17, 1994; Verbal Storage Space Rental
Agreement dated; Storage Space Rental Agreement with The Mutual Life
Insurance Company of New York as Landlord dated February 3, 1995.
37. Lease Agreement (East Tower) between Two Atlanta Financial Center
Associates and Morris, Manning & Martin dated August 6, 1987; amended
by Modification to Lease dated January 1, 1993.
38. Lease Agreement (East Tower) between Two Atlanta Financial Center
Associates and Morris and Webster dated September 24. 1993.
39. Lease Agreement (East Tower) between Two Atlanta Financial Center
Associates and Mutual of America dated April 4, 1988; amended by
Amendment to Lease and Extension Agreement dated June 8, 1992;
Certificate as to Term of Lease dated August 27, 1992; further amended
by Second Amendment to Lease Agreement with The Mutual Life Insurance
Company of New York as Landlord and Mutual of America Life Insurance as
Tenant dated May 19, 1994.
40. Lease Agreement (East Tower) between Two Atlanta Financial Center
Associates and The Mutual Life Insurance Company of New York dated
November 3, 1992.
41. Lease Agreement (East Tower) between Two Atlanta Financial Center
Associates and Newsweek, Inc. dated January 30, 1989; Certificate as to
Term of Lease dated March 15, 1989; amended by First Amendment to Lease
Agreement and Lease Extension Agreement dated September 20, 1993;
further amended by Second Amendment to
11
EXHIBIT 'B'
<PAGE> 27
Lease Agreement with The Mutual Life Insurance Company of New York as
Landlord dated March 8, 1995.
42. Lease Agreement (East Tower) between Two Atlanta Financial Center
Associates and James O. Patterson dated August 23, 1988; amended by
First Amendment to Lease Agreement dated December 18, 1990; Certificate
as to Term of Lease dated May 3, 1991; Storage Space Rental Agreement
dated May 6, 1991; further amended by Second Amendment to Lease
Agreement dated June 6, 1991; further amended by Third Amendment to
Lease Agreement dated July 9, 1992; further amended by Fourth Amendment
to Lease Agreement dated November 23, 1992.
43. Lease Agreement (East Tower) between R-H Associates Bldg. II Corp. and
W.H. Smith Hotel Services, Inc. dated July 22, 1987; Certificate as to
Term of Lease dated__________________ , 198_. Certificate as to
Preliminary Term of Lease dated January 6, 1988; amended by First
Amendment to Lease Agreement with Two Atlanta Financial Center
Associates as Landlord dated August 14, 1989; assigned by Assignment
and Assumption of Lease to An Gil Lee d/b/a Peachtree News Stand dated
May 29, 1990; amended by Amendment to Assigned Lease dated May 29,
1990; further assigned by Second Assignment and Assumption of Lease to
Charles Jung and Yang Jin Jung dated August 17, 1992; further amended
by Third Amendment to Lease Agreement with Two Atlanta Financial Center
Associates as Landlord dated August 17, 1992; further amended by Fourth
Amendment to Lease Agreement dated May 17, 1993; further amended by
Fifth Amendment to Lease Agreement with The Mutual Life Insurance
Company of New York as Landlord dated November 11, 1994; Certificate as
to Term of Lease dated April 5, 1995.
44. Lease Agreement (East Tower) between Two Atlanta Financial Center
Associates and The Plaza Hotel Company, dated February 10, 1993;
Certificate as to Term of Lease dated April 30, 1993.
45. Lease Agreement (East Tower) between R-H Associates Bldg. II Corp. and
BellSouth Systems Technology, Inc. dated April 1, 1987; Certificate as
to Term of Lease dated October 14, 1987; assigned by Assignment of
Lease to Shared Technologies, Inc. dated September 28, 1989; amended by
First Amendment to Lease Agreement with Two Atlanta Financial Center
Associates as Landlord dated July 25, 1989; further amended by Second
Amendment to Lease Agreement dated May 11, 1992; Storage Space Rental
Agreement dated June 1, 1988.
46. Lease Agreement (East Tower) between Two Atlanta Financial Center
Associates and Small, White & Marani dated November 4, 1992.
47. Lease Agreement (East Tower) between R-H Associates Bldg. II Corp. and
Smith, Gambrell & Russell dated March 24, 1987; as amended by First
Amendment with R-H Associates Bldg. II Corp. as Landlord dated June 6,
1987.
12
EXHIBIT 'B'
<PAGE> 28
48. Lease Agreement (East Tower) between Two Atlanta Financial Center
Associates and SouthTrust of Alabama dated June 21, 1991; amended by
First Amendment to Lease Agreement with The Mutual Life Insurance
Company of New York as Landlord dated March 7, 1994; Sublease to
Realtec, Incorporated dated July 13, 1993.
49. Lease Agreement (East Tower) between Two Atlanta Financial Center
Associates and Liberty Savings Bank, FSB dated September 25, 1987;
assigned by Assignment of Lease to SouthTrust Bank, Federal Savings
Bank (SouthTrust) dated September 28, 1990; amended by Modification to
Lease with SouthTrust Bank, Federal Savings Bank as Tenant dated May 1,
1993;
50. Lease Agreement (East Tower) between Two Atlanta Financial Center
Associates and Liberty Savings Bank, FSB dated September 25, 1987;
assigned by Assignment of Lease to Liberty Savings Bank of South
Georgia, F.S.B. dated August ___, 1990 with Consent of Landlord;
amended by First Amendment to Lease Agreement with SouthTrust Bank, FSB
as Tenant dated December 12, 1991; further amended by First Amendment
to Lease Agreement with The Mutual Life Insurance Company of New York
as Landlord and SouthTrust Bank of Georgia, N.A. as Tenant dated March
7, 1994; Sublease to Wagner & Johnston, P.C. dated August 5, 1993;
Letter Agreement [for sublease of space] between Wagner & Johnston,
P.C. and Providence Capital, Inc. and Westside Investors, Inc. dated
September 30, 1994 with consent to sublease by The Mutual Life
Insurance Company of New York dated December 7, 1994; Letter Agreement
[for sublease of space] between Wagner & Johnston, P.C. and Nobel
Investment Group dated August 17, 1995 with consent to sublease by The
Mutual Life Insurance Company of New York dated October 23, 1995.
51. Lease Agreement between The Mutual Life Insurance Company of New York
and Starbucks Corporation dated June 26, 1996; First Amendment to
Lease, unexecuted but pending.
52. Lease Agreement between R-H Associates Bldg. II Corp. and Universal
Diamond Corporation dated July 13, 1987; amended by First Amendment to
Lease Agreement with The Mutual Life Insurance Company of New York as
Landlord dated November 14, 1994; further amended by Second Amendment
to Lease Agreement dated October 2, 1995; Certificate as to Term of
Lease dated November 10, 1995.
53. Lease Agreement (East Tower) between The Mutual Life Insurance Company
of New York and Van Munching & Co., Inc. dated October 3, 1994;
Certificate as to Term of Lease dated January ____, 1995.
54. Lease Agreement (East Tower) between Two Atlanta Financial Center
Associates and Paul J. Wagner, Jr., P.C. dated March 31, 1989;
Certificate as to Term of Lease dated December 11, 1989; amended by
First Amendment to Lease Agreement with The Mutual Life Insurance
Company of New York as Landlord dated January 17, 1995
13
EXHIBIT 'B'
<PAGE> 29
55. Lease Agreement (East Tower) between R-H Associates Bldg. II Corp. and
Robert Wayne's for Hair dated June 5, 1987; Certificate as to Term of
Lease dated September 8, 1987; amended by First Amendment to Lease
Agreement with Robert L. Betts, Jr. d/b/a Robert Wayne's for Hair with
Two Atlanta Financial Center Associates as Landlord dated September 22,
1992; further amended by Second Amendment to Lease Agreement with The
Mutual Life Insurance Company of New York as Landlord dated July 16,
1996.
56. Lease Agreement (East Tower) between The Mutual Life Insurance Company
of New York and Weissman, Robinson & Italiaander, P.C. dated August
2, [1995]; Unconditional Guaranty of Lease by David A. Weissman, Debra
Robinson and Scott Italiaander dated June 30, 1995; Certificate as to
Term of Lease dated March 27, 1996; First Amendment to Lease dated
August 8, 1996.
57. Lease Agreement between The Mutual Life Insurance Company of New York
and Worldwide Notification Systems, Inc. dated December 1, 1995;
Certificate as to Term of Lease dated April 3, 1996.
The following tenants have agreements regarding antennas on the roofs of the
buildings:
1. Freebairn and Company
2. The Robinson-Humphrey Company, Inc.
14
EXHIBIT 'B'
<PAGE> 30
SCHEDULE OF COMMISSION AGREEMENTS
South Tower
1. Registration and Commission Agreement between Atlanta Financial Center
Associates and Davidson Associates Inc. dated January 4, 1993 for
Fellows, Johnson, Davis & Labriola lease.
2. Registration and Commission Agreement between Atlanta Financial Center
Associates and The Sharp Boylston Companies dated June 28, 1993 for
Sedgwick James of Georgia, Inc. lease.
3. Registration and Commission Agreement between Two Atlanta Financial
Center Associates and Cauble and Company dated August 23, 1991 for The
Gallup Organization, Inc. lease.
4. Registration and Commission Agreement between Atlanta Financial Center
Associates and Richard Bowers & Company dated May 29, 1992 for Higgins
Dubner lease.
5. Registration and Commission Agreement between Atlanta Financial Center
Associates and William Leonard & Co. dated March 13, 1990 for Hughes
Advertising lease.
6. Commission Agreement between The Mutual Life Insurance Company of New
York and Carter & Associates, L.L.C. dated December 21, 1995 for
MCIMetro Access Transmission Services, Inc. lease.
7. Registration and Commission Agreement between Two Atlanta Financial
Center Associates and Meridian Property Group, Ltd. dated July 10, 1989
for Martin Rubin and Robert Wildau lease.
8. Registration and Commission Agreement between Atlanta Financial Center
Associates and Cushman & Wakefield of Georgia, Inc. dated June 30, 1993
for Ruys & Company lease.
9. Registration and Commission Agreement between The Mutual Life Insurance
Company of New York and Jenny Pruitt & Associates dated March 15, 1994
for Titus & Donnelly lease.
10. Registration and Commission Agreement between The Mutual Life Insurance
Company of New York and Bryant & Associates dated June 23, 1994 for
Todays Temporary, Inc. lease.
EXHIBIT 'C'
<PAGE> 31
11. Registration and Commission Agreement between Atlanta Financial Center
Associates and Carter & Associates, Ltd. dated May 28, 1993 for White,
Smith, Howard & Ajax lease.
12. Commission Agreement between The Mutual Life Insurance Company of New
York and Richard Bowers & Company dated ______________ , 199___ for
Teknion,Inc. lease [Note: unsigned by Landlord].
East Tower
1. Commission Agreement between The Mutual Life Insurance Company of New
York and The Wesley Company dated August 29, 1995 for Joseph G. Davis
d/b/a Davis & Doster lease.
2. Commission Agreement between The Mutual Life Insurance Company of New
York and Executive Realty dated December 1, 1995 for Worldwide
Notifications Systems lease.
3. Commission Agreement between The Mutual Life Insurance Company of New
York and Ackerman & Company dated June 29, 1995 for Weissmann &
Robinson lease. [Note: A second copy of this agreement is dated August
2, 1995, but Seller represents and warrants that both copies constitute
one and the same agreement.]
4. Commission Agreement between The Mutual Life Insurance Company of New
York and Arnold J. Heflin dated March 6, 1995 for Paul J. Wagner, Jr.,
P.C. lease.
5. Commission Agreement between The Mutual Life Insurance Company of New
York and The Galbreath Company dated December 20, 1994 for Van Munching
& Co., Inc. lease.
6. Commission Agreement between The Mutual Life Insurance Company of New
York and Office Associates, Inc dated October 31, 1995 for Universal
Diamonds, Inc. lease.
7. Commission agreement letter between Robinson-Humphrey Properties,
Incorporated and Cushman & Wakefield of Georgia, Inc. dated August 7,
1986 for Smith, Gambrell & Russell lease.
8. Registration and Commission Agreement between Two Atlanta Financial
Center Associates and COMSTAR Real Estate Services, Inc. dated November
2, 1992 for Small, White & Marani lease.
9. Registration and Commission Agreement between R-H Associates Bldg. II
Corp. and Penso Realty dated June 5, 1987 for Robert Wayne's for Hair
lease.
2
EXHIBIT 'C'
<PAGE> 32
10. Registration and Commission Agreement between Two Atlanta Financial
Center Associates and Richard Bowers & Company dated January 4, 1993
for Plaza Hotel Management lease.
11. Registration and Commission Agreement between Two Atlanta Financial
Center Associates and CB Commercial dated October 16, 1992 for Mutual
of America lease.
12. Registration and Commission Agreement between Two Atlanta Financial
Center Associates and Akin Properties, Inc. dated October 8, 1991 for
Montag & Caldwell, Inc. lease.
13. Registration and Commission Agreement between Two Atlanta Financial
Center Associates and AFCO Realty Associates, Inc. dated October 11,
1989 for Milliman & Robertson, Inc. lease.
14. Registration and Commission Agreement between Atlanta Financial Center
Associates and Adams-Cates/Grubbs & Ellis dated October 20, 1989 for
Midwest Employers Casualty Company lease.
15. Commission Agreement between The Mutual Life Insurance Company of New
York and Cott & Lambert, Inc. dated April 12, 1996 for Main America
Capital, Inc. lease.
16. Commission Agreement between The Mutual Life Insurance Company of New
York and CB Commercial Real Estate Group, Inc. dated March 20, 1995 for
Lamberth, Bonapfel, Cifelli & Willson lease.
17. Registration and Commission Agreement between Two Atlanta Financial
Center Associates and Grubb & Ellis dated March 24, 1992 for Amalia
Moretti, Inc. d/b/a La Gioiosa USA lease.
18. Registration and Commission Agreement between Two Atlanta Financial
Center Associates and Frank M. Darby Company dated November 14, 1992
for S.M.M. Corporation d/b/a Joe May Valet lease.
19. Registration and Commission Agreement between Two Atlanta Financial
Center Associates and Carter and Associates, Ltd. dated December 24,
1991 for Industrial Developments International, Inc. lease.
20. Registration and Commission Agreement between Two Atlanta Financial
Center Associates and Akin Properties, Inc. dated November 6, 1991 for
Wayne Helms, P.C. lease.
21. Commission Agreement between The Mutual Life Insurance Company of New
York and The Sharp-Boylston Companies dated September 28, 1995 for
Haworth Commercial Furniture lease.
3
EXHIBIT 'C'
<PAGE> 33
22. Registration and Commission Agreement between Two Atlanta Financial
Center Associates and Cauble and Company dated February 18, 1994 for
Holcomb T. Green lease.
23. Commission Agreement between The Mutual Life Insurance Company of New
York and Grubb & Ellis dated October 25, 1995 for Gaiatech, Inc. lease.
24. Commission Agreement between The Mutual Life Insurance Company of New
York and Office Associates, Inc. dated September 28, 1995 for Freebairn
& Co. lease.
25. Commission Agreement between The Mutual Life Insurance Company of New
York and Kercher & Associates dated September 5, 1995 for Duncanson &
Holt, Inc. lease.
26. Registration and Commission Agreement between The Mutual Life Insurance
Company of New York and The Wesley Company dated August 29, 1994 for
Enterprise Capital Management, Inc. lease.
27. Registration and Commission Agreement between Two Atlanta Financial
Center Associates and CB Commercial Real Estate Group, Inc. dated March
5, 1992 for The Disney Channel lease and Amendment to Registration and
Commission Agreement dated July 23, 1992.
28. Commission Agreement between The Mutual Life Insurance Company of New
York and The LeCraw Company dated November 8, 1995 for Denon Corp.
(USA) lease.
29. Registration and Commission Agreement between Two Atlanta Financial
Center Associates and The Miller-Richmond Company dated December 7,
1993 for Coleman Management Consultants lease.
30. Commission Agreement between The Mutual Life Insurance Company of New
York and The Wesley Company dated March 15, 1996 for California
Compensation Insurance Company d/b/a Business Insurance Company, Inc.
lease.
31. Registration and Commission Agreement between The Mutual Life Insurance
Company of New York and Brookdale Realty Services dated October 4, 1994
for Brookdale Realty Services lease.
32. Registration and Commission Agreement between The Mutual Life Insurance
Company of New York and Carter & Associates, Ltd. dated March 28, 1994
for Alliance Technology Management Company lease.
33. Registration and Commission Agreement between Two Atlanta Financial
Center Associates and Peachtree Brokers dated August 19, 1993 for
Robert J. Allio Associates, Inc. lease.
4
EXHIBIT 'C'
<PAGE> 34
34. Registration and Commission between Two Atlanta Financial
Associates and Rubloff, Inc. dated May 11, 1990 for Air One, Inc.
lease.
35. Registration and Commission Agreement between Two Atlanta Financial
Center Associates and Cushman & Wakefield of Georgia, Inc. dated
September 2, 1993 for Howard Well Labouisse Friedrichs, Inc. lease.
36. Registration and Commission Agreement between Two Atlanta Financial
Center Associates and Bryant & Associates dated September 3, 1993 for
Morris and Webster lease.
37. Commission Agreement between The Mutual Life Insurance Company of New
York and Brannen/Goddard Company dated June 28, 1996 for Starbucks
Corporation lease.
North Tower
1. Commission Agreement between The Mutual Life Insurance Company of New
York and The Wesley Company dated May 4, 1995 for Robert D. Wildstein,
P.C. lease.
2. Commission Agreement (undated) between The Mutual Life Insurance
Company of New York and Richard Bowers & Company for The Watkins
Insurance Group lease. [Note: Broker refused to execute standard
agreement and Landlord refused to approve changes requested.]
3. Registration and Commission Agreement between R-H Associates Bldg. III
Corp. and Merrill Lynch Realty dated November 8, 1989 for Walton C.
Bryde & Associates, P.C. lease.
4. Commission Agreement between The Mutual Life Insurance Company of New
York and Richard Bowers & Company dated May 5, 1995 for Transcend
Services, Inc. lease.
5. Registration and Commission Agreement between R-H Associates Bldg. III
Corp. and Cushman & Wakefield of Georgia, Inc. dated November 22, 1989
for The Thomas Financial Group lease.
6. Registration and Commission Agreement between R-H Associates Bldg. m
Corp. and Royal LePage Real Estate Services dated March 25, 1991 for
Shore & Azimov, P.C. lease.
7. Commission Agreement between The Mutual Life Insurance Company of New
York and Bryant & Associates dated April 3, 1995 for Spix, Krupp &
Reece lease.
5
EXHIBIT "C"
<PAGE> 35
8. Registration and Commission Agreement between R-H Associates Bldg. III
Corp. and Real Estate Specialist, Inc. dated August 9, 1994 for The
Prudential Insurance Company of America lease.
9. Registration and Commission between R-H Associates Bldg. III Corp. and
Ben Carter Properties dated February 25, 1994 for Fisher
Transportation, Ltd. lease.
10. Commission Agreement between The Mutual Life Insurance Company of New
York and The Wesley Company dated March 20, 1996 for Interim Accounting
Professionals of Atlanta, Inc. lease.
11. Registration and Commission Agreement between R-H Associates Bldg. III
Corp. and Kercher & Associates dated December 21, 1993 for Christian
Dior Perfumes lease.
12. Commission Agreement between The Mutual Life Insurance Company of New
York and The Wesley Company dated July 27, 1995 for City Capital
Corporation lease. [Note: A second copy of this agreement is dated July
24, 1995, but Seller represents and warrants that both copies
constitute one and the same agreement.]
13. Registration and Commission Agreement between R-H Associates
Bldg. III Corp. and Selig Realty, Inc. dated February 2, 1994 for
Chambers & Asher lease.
14. Registration and Commission Agreement between R-H Associates Bldg. III
Corp. and Richard Bowers & Company dated August 9, 1994 for E. R.
Squibb & Sons, Inc. lease.
15. Commission Agreement between The Mutual Life Insurance Company of New
York and Sunlink dated April 7, 1996 for BellSouth Communications, Inc.
lease.
16. Registration and Commission Agreement between R-H Associates Bldg.
III Corp. and The Staubach Company-Southeast, Inc. dated July 11, 1991
for KnowledgeWare, Inc. lease.
17. Commission Agreement between The Mutual Life Insurance Company of New
York and Carter & Associates, L.L.C. dated June 7, 1996 for Rowland &
Company lease.
18. Commission Agreement between The Mutual Life Insurance Company of New
York and Wilson Properties, Inc. dated October 6, 1995 for BellSouth
Telecommunications, Inc. lease.
19. Registration and Commission Agreement between The Mutual Life Insurance
Company of New York and Cushman & Wakefield of Georgia dated December
12, 1994 for PeopleSoft lease.
6
EXHIBIT 'C'
<PAGE> 36
20. Registration and Commission Agreement between R-H Associates Bldg.III
Corp. and Cushman & Wakefield of Georgia dated June 10, 1992 for
Yankelovich Skelly & White/Clancy, Shulman, Inc. d/b/a Yankelovich,
Clancy Shulman lease. [Note: unsigned by Landlord].
21. Registration and Commission Agreement between R-H Associates
Bldg. III Corp. and Group VI Real Estate dated December 11, 1992 for
Beckman Instruments, Inc. lease.
<PAGE> 1
EXHIBIT 10.ss
ASSIGNMENT AND ASSUMPTION OF CONTRACTS
THIS ASSIGNMENT AND ASSUMPTION OF CONTRACTS (hereinafter referred to as
this "AGREEMENT"), made and entered into as of the 30th day of August, 1996, by
and between THE MUTUAL LIFE INSURANCE COMPANY OF NEW YORK, a New York
corporation (hereinafter referred to as "SELLER"), and OVERSEAS PARTNERS
(AFC), INC., a Georgia corporation (hereinafter referred to as "Purchaser"),
WITNESSETH:
WHEREAS, Seller is the owner of certain improved real property
(hereinafter referred to as the "PROPERTY") located in the City of Atlanta
County of Fulton, State of Georgia, as more particularly described in EXHIBIT
"A" attached hereto and by this reference made a part hereof; and
WHEREAS, Seller has on even date conveyed the Property to Purchaser,
and in connection therewith Seller wishes hereby to transfer and assign to
Purchaser all of Seller's right, title and interest in and to certain service
contracts related to the Property as more particularly described below.
NOW, THEREFORE, in consideration of the sum of Ten Dollars ($10.00) and
other good and valuable consideration, in hand paid by Purchaser to Seller, the
receipt and sufficiency of which are hereby acknowledged, Seller and Purchaser
hereby covenant and agree as follows:
1. ASSIGNMENT AND ASSUMPTION. Seller hereby transfers and assigns
to Purchaser, if and to the extent assignable, all of Seller's right, title and
interest in and to the contracts and agreements (hereinafter referred to
collectively as the "SERVICE CONTRACTS") described in EXHIBIT "B" attached
hereto and by this reference made a part hereof. Purchaser hereby assumes
Seller's obligations and liabilities arising from and after the date of this
Agreement under the Service Contracts. Further, Purchaser hereby agrees to
indemnify Seller and hold Seller harmless from any loss, damage, liability, cost
or expense (including, without limitation, court costs and attorney's fees)
which Seller shall hereafter incur or have asserted against it with regard to
said obligations and liabilities assumed by Purchaser in connection with the
Service Contracts.
2. SELLER'S INDEMNITY. Seller hereby agrees to indemnify
Purchaser and hold Purchaser harmless from any loss, damage, liability, cost or
expense (including, without limitation, court costs and attorney's fees) which
Purchaser shall hereafter incur or have asserted against it in connection with
obligations and liabilities under the Service
<PAGE> 2
Contracts to the extent performance or payment of such obligations and
liabilities was due prior to the date of this Agreement.
3. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon
and inure to the benefit of Purchaser and Seller and their respective heirs,
legal representatives, successors and assigns.
IN WITNESS WHEREOF, Seller and Purchaser have executed this Agreement
under seal as of the date first above written.
SELLER
THE MUTUAL LIFE INSURANCE COMPANY
OF NEW YORK, a New York corporation
By:/s/Bruce C. Fernald
---------------------------------
Bruce C. Fernald,
Senior Vice President
ARES Realty Capital, Inc.
Authorized Signatory
[CORPORATE SEAL]
2
<PAGE> 3
[EXECUTION PAGE FOR ASSIGNMENT AND ASSUMPTION OF CONTRACTS]
PURCHASER:
OVERSEAS PARTNERS (AFC), INC.,
a Georgia corporation
By:/s/Bruce M. Barone
---------------------------
NAME: Bruce M. Barone
TITLE: President
[CORPORATE SEAL]
<PAGE> 4
LEGAL DESCRIPTION OF LAND
PHASE I
ALL THAT TRACT OR PARCEL OF LAND lying and being in Land Lots 45 and 62, 17th
District, City of Atlanta, Fulton County, Georgia and being more particularly
described as follows:
TO FIND THE TRUE POINT OF BEGINNING, begin at the point formed by the
intersection of the northernmost right-of-way line of Highland Drive (a 50-foot
right-of-way) with the easternmost right-of-way line of Peachtree Road (a
variable right-of-way being 80 feet at this point) and proceed thence in a
northerly direction along the aforesaid easternmost right-of-way line, following
the curvature thereof, a distance of 365.1 feet to an iron pin which is THE TRUE
POINT OF BEGINNING.
FROM THE TRUE POINT OF BEGINNING THUS ESTABLISHED proceed thence along the
aforesaid easternmost right-of-way line north 13(degree)43'08" east a distance
of 37.39 feet to a point on the aforesaid easternmost right-of-way line; proceed
thence along the aforesaid easternmost right-of-way line along an arc of a curve
to the right, an arc distance of 179.12 feet to a point, said arc being
subtended by a chord 178.99 feet in length and bearing north 20(degree)26'46"
east; proceed thence along the aforesaid easternmost right-of-way line north
26(degree)16'11" east a distance of 48.21 feet to a point on the aforesaid
easternmost right-of-way line; proceed thence along the aforesaid easternmost
right-of-way line north 28(degree)17'14" east 48.18 feet to a point on the
aforesaid easternmost right-of-way line; proceed thence along the aforesaid
easternmost right-of-way line north 30(degree)11'09" east a distance of 48.15
feet to a point on the aforesaid easternmost right-of-way line; proceed thence
north 32(degree)20'44" east a distance of 57.74 feet to a point on the aforesaid
easternmost right-of-way line; proceed thence along the aforesaid easternmost
right-of-way line north 55(degree)03'02" east a distance of 8.44 feet to a point
on the aforesaid easternmost right-of-way line; proceed thence along an arc of a
curve to the left, departing from the aforesaid easternmost right-of-way line,
an arc distance of 178.88 feet, said arc being subtended by a chord 178.87 feet
in length and bearing south 32(degree)44'02" east; proceed thence along an arc
of a curve to the left, an arc distance of 23.09 feet to a point, said arc being
subtended by a chord 23.09 feet in length and bearing south 31(degree)15'01"
east; proceed thence south 31(degree)11'25" west, a distance of 26.49 feet to a
point; proceed thence south 81(degree)18'35" east, a distance of 35.04 feet to a
point; proceed thence south 14(degree)08'05" east, a distance of 140.56 feet to
a point; proceed thence south 81(degree)21'18" east, a distance of 0.36 feet to
a point; proceed thence north 31(degree)11'25" east, a distance of 366.62 feet
to a point; proceed thence south 74(degree)31'03" east, a distance of 10.04 feet
to a point; proceed thence north 13(degree)51'45" west, a distance of 261.95
feet to a point; proceed thence north 48(degree)03'44" west, a distance of 95.71
feet to a point located on the aforesaid easternmost right-of-way line of
Peachtree Road; proceed thence along the aforesaid easternmost right-of-way line
north 39(degree)15'08" east, a distance of 142.28 feet to a point; proceed
thence south 13(degree)51'45" east, a distance of 1,104.35 feet to a point
located
EXHIBIT 'A'
<PAGE> 5
on the Land Lot line common to Land Lots 45 and 46 of the 17th District of
Fulton County, Georgia; proceed thence along the said common Land Lot line north
89(degree)37'06" west, a distance of 363.25 feet; proceed thence, departing from
said common Land and Lot line, north 12(degree)49'09" west, a distance of 218.41
feet to a point; proceed thence north 79(degree)10'45" west, a distance of
356.72 feet to a point located on the aforesaid easternmost right-of-way line of
Peachtree Road, said point being the TRUE POINT OF BEGINNING, said tract or
parcel of land being more particularly shown as "Phase I" on that certain survey
by Mallett & Associates bearing the seal and certification of Michael F. Lawler,
Georgia Registered Land Surveyor No. 1946, prepared for Overseas Partners
Capital Corp., dated December 20, 1993, last revised August 27, 1996, and
bearing file no. 93153, which survey is incorporated herein by this reference.
LESS AND EXCEPT that portion of the above property conveyed by the following:
(1) Limited Warranty Deed from R-H Building Partners, Ltd., a Georgia
limited partnership, as to an undivided 50% interest and The Mutual Life
Insurance Company of New York, a New York corporation, as to an undivided 50%
interest, together doing business as Atlanta Financial Center Associates, a
Georgia Joint Venture to The Department of Transportation of the State of
Georgia, dated December 22, 1986, filed for record December 23, 1986 at 1:41
p.m., recorded in Deed Book 10513, Page 108, Records of Fulton County, Georgia
(2) Limited Warranty Deed from Atlanta Financial Center
Associates, a Georgia joint venture composed of The Mutual Life Insurance
Company of New York and R-H Building Partners, Ltd., to the Department of
Transportation of the State of Georgia, dated April 4, 1989, filed for record
July 19, 1989 at 9:30 am., recorded in Deed Book 12667, Page 115, aforesaid
Records.
TOGETHER WITH all easements appurtenant to the above property created by the
following:
(a) Parking Deck and Easement Agreement by and among Michael C.
Carlos, George C. Carlos, Andrew C. Carlos, and R-H Building Partners, Ltd.,
dated July 15, 1981, recorded in Deed Book 7903, PAGE 165, aforesaid Records; as
amended by that certain amendment of Parking Deck and Easement Agreement, dated
July 15, 1981, recorded in Deed Book 7903, Page 385, aforesaid Records (said
Amendment having been terminated by Agreement dated September 20, 1982, recorded
in Deed Book 8255, Page 475, aforesaid Records); as further amended by Second
Amendment to Parking Deck and Easement Agreement, dated July 18, 1985, recorded
in Deed Book 9618, Page 37, aforesaid Records; as further amended by that
certain Third Amendment to Parking Deck and Easement Agreement, dated as of July
18, 1985, recorded in Deed Book 10290, Page 389, aforesaid Records; as further
amended by that certain Declaration of Release dated December 22, 1986, recorded
Deed Book 10561, Page 358, aforesaid Records; as further amended by that certain
Fourth Amendment to Parking Deck and Easement Agreement, dated as of August 11,
1988, recorded in Deed Book 11790, Page 76, aforesaid Records.
2
EXHIBIT 'A'
<PAGE> 6
(b) Reciprocal Easement Agreement by and among Robinson-Humphrey
Properties, Inc., R-H Associates Bldg. II Corp. and Atlanta Financial Center
Associates, dated July 18, 1985, recorded in Deed Book 9618, Page 68, aforesaid
Records; as amended by that certain First Amendment to Reciprocal Easement
Agreement, dated as of July 18, 1985, recorded in Deed Book 10290, Page 411,
aforesaid Records; as further amended by that certain Declaration of Release,
dated December 22, 1986, recorded in Deed Book 10561, Page 358, aforesaid
Records; as further amended by that certain Second Amendment to Reciprocal
Easement Agreement, dated as of August 11, 1988, recorded in Deed Book 11790,
Page 69, aforesaid Records.
(c) Agreement by and among R-H Associates Bldg. II Corp.,
Atlanta Financial Center Associates, Robinson-Humphrey Properties, Inc. and the
Department of Transportation of the State of Georgia, dated July 18, 1985,
recorded in Deed Book 9618, Page 145, aforesaid Records; as amended by that
certain Amendment to Agreement dated as of July 18, 1985, recorded in Deed Book
10290, page 289, aforesaid Records; the interest of R-H Associates Bldg. II
Corp. thereunder having been assigned to Two Atlanta Financial Center Associates
by that certain Assignment and Assumption (DOT Agreements), dated July 28, 1987,
recorded in Deed Book 10973, Page 179, aforesaid Records.
(d) Agreement Regarding Georgia 400 Extension, by and among R-H Associates
Bldg. II Corp., Robinson-Humphrey Properties, Inc., Atlanta Financial Center
Associates, MONY Mortgage Investors, and The Mutual Life Insurance Company of
New York dated July 18, 1985, recorded in Deed Book 9623, Page 75, aforesaid
Records; as amended by that certain First Amendment to Agreement Regarding
Georgia Highway 400 Extension, dated as of July 18, 1985, recorded in Deed Book
10290, Page 419, aforesaid Records; the interest of R-H Associates Bldg. II
Corp. thereunder having been assigned to Two Atlanta Financial Center Associates
by that certain Assignment and Assumption (DOT Agreements) dated July 28, 1987,
recorded in Deed Book 10973, Page 179, aforesaid Records.
(e) Limited Warranty Deed from R-H Building Partners, Ltd., a Georgia
limited partnership, as to an undivided 50% interest and The Mutual Life
Insurance Company of New York a New York corporation, as to an undivided 50%
interest, together doing business as Atlanta Financial Center Associates, a
Georgia Joint Venture to The Department of Transportation of the State of
Georgia, dated December 22, 1986, filed for record December 23, 1986 at 1:41
p.m., recorded in Deed Book 10513, Page 108, aforesaid Records.
(f) Limited Warranty Deed from Atlanta Financial Center Associates, a
Georgia joint venture composed of The Mutual Life Insurance Company of New York
and R-H Building Partners, Ltd., to the Department of Transportation of the
State of Georgia, dated April 4, 1989, filed for record July 19, 1989 at 9:30
am., recorded in Deed Book 12667, Page 115, aforesaid Records.
3
EXHIBIT 'A'
<PAGE> 7
PHASE II
ALL THAT TRACT OR PARCEL OF LAND lying and being in Land Lot 45, 17th District,
City of Atlanta, Fulton County, Georgia and being more particularly described as
follows:
TO FIND THE TRUE POINT OF BEGINNING begin at a point formed by the intersection
of the easternmost right-of-way line of Peachtree Road (a variable right-of-way
being 80 feet at this point) with the northernmost right-of-way line of Highland
Drive (a 50-foot right-of-way) and proceed thence in a northeasterly direction
along the aforesaid easternmost right-of-way line of Peachtree Road a distance
of 365.1 feet to a point; proceed thence in a northeasterly direction along the
aforesaid easternmost right-of-way line north 13(degree)43'08" east a distance
of 37.39 feet to a point; proceed thence along the aforesaid easternmost
right-of-way line, following the curvature thereof to the right, an arc distance
of 179.12 feet to a point, said arc being subtended by a chord 178.99 feet in
length and bearing north 20(degree)26'46" east; proceed thence in a
northeasterly direction along the aforesaid easternmost right-of-way line north
26(degree)16'11" east a distance of 48.21 feet to a point; proceed thence in a
northeasterly direction along the aforesaid easternmost right-of-way line north
28(degree)17'14" east a distance of 48.18 feet to a point; proceed thence in a
northeasterly direction along the aforesaid easternmost right-of-way line north
30(degree)11'09" east a distance of 48.15 feet to a point; proceed thence in a
northeasterly direction along the aforesaid easternmost right-of-way line north
32(degree)20'44" east a distance of 57.74 feet to a point; proceed thence in a
northeasterly direction along the aforesaid easternmost right-of-way line north
55(degree)03'02" east a distance of 8.44 feet to a point, said point being THE
TRUE POINT OF BEGINNING.
FROM THE TRUE POINT OF BEGINNING THUS ESTABLISHED proceed thence along the
aforesaid easternmost right-of-way line north 55(degree)32'07"" east a distance
of 18.02 feet to a point; proceed thence in a southeasterly direction along the
aforesaid easterly right-of-way line, following the curvature thereof to the
right, an arc distance of 7.77 feet to a point, said arc being subtended by a
chord 7.77 feet in length and bearing south 31(degree)52'33" east; thence leave
said right-of-way line and proceed in a southeasterly direction along the arc of
a curve to the left, an arc distance of 171.77 feet to a point, said arc being
subtended by a chord 171.77 feet in length and bearing south 32(degree)46'15"
east; proceed thence in a southeasterly direction along the arc of a curve to
the left, an arc distance of 14.05 feet to a point, said arc being subtended by
a chord 14.05 feet in length and bearing south 31(degree)08'45" east; proceed
thence north 31(degree)11'25" east a distance of 193.49 feet to a point; proceed
thence north 31(degree)11'25". east a distance of 3.77 feet to a point; proceed
thence south 74(degree)31'03" east a distance of 62.79 feet to a point; proceed
thence north 76(degree)11'25" east a distance of 74.14 feet to a point; proceed
thence south 13(degree)51'45" east a distance of 41.61 feet; proceed thence
north 74(degree)31'03" west a distance of 10.04 feet to a point; proceed thence
south 31(degree)11'25" west a distance of 366.62 feet to a point; proceed
thence north 81(degree)21'18" west a distance of 0.36 feet to a point; proceed
thence north 14(degree)08'05" west a distance of 140.56 feet to a point;
proceed thence north 81(degree)18'35" west a distance of 35.04 feet to a point;
proceed thence north 31(degree)11'25" east a distance of 26.49 feet to a point;
proceed thence along the arc of a curve to the right an arc distance of 23.09
feet to a point, said arc being subtended by a chord 23.09 feet in length and
bearing north 31(degree)15'01" west; proceed thence
4
EXHIBIT 'A'
<PAGE> 8
along an arc of a curve to the right an arc distance of 178.88 feet to a point,
said arc being subtended by a chord 178.87 feet in length and bearing north
32(degree)44'02" west, said point being THE TRUE POINT OF BEGINNING, said tract
or parcel of land being more particularly shown as "Phase II" on that certain
survey by Mallett & Associates, bearing the seal and certification of Michael F.
Lawler, Georgia Registered Land and Surveyor No. 1946 prepared for Overseas
Partners Capital Corp., dated December 20, 1993, last revised August 27, 1996,
and bearing file no. 93153, which survey is incorporated herein by this
reference.
LESS AND EXCEPT that portion of the above property conveyed by the following:
(1) Limited Warranty Deed from R-H Associates Bldg. II Corp. to the
Department of Transportation, dated December 22, 1986, recorded in Deed Book
10513, Page 127, aforesaid Records.
(2) Limited Warranty Deed from Two Atlanta Financial Center Associates, a
Georgia joint venture composed of The Mutual Life Insurance Company of New York
and R-H Associates Bldg. II Corp., to the Department of Transportation of the
State of Georgia, dated April 4, 1989, filed for record July 19, 1989 at 9:30
am., recorded in Deed Book 12667, Page 141, aforesaid Records.
TOGETHER WITH all easements appurtenant to the above property created by the
following:
(a) Parking Deck and Easement Agreement by and among Michael C.
Carlos, George C. Carlos, Andrew C. Carlos, and R-H Building Partners, Ltd.,
dated July 15, 1981, recorded in Deed Book 7903, Page 165, aforesaid Records; as
amended by that certain Amendment of Parking Deck and Easement Agreement, dated
July 15, 1981, recorded in Deed Book 7903, Page 385, aforesaid Records (said
Amendment having been terminated by Agreement dated September 20, 1982, recorded
in Deed Book 8255, Page 475, aforesaid Records); as further amended by Second
Amendment to Parking Deck and Easement Agreement, dated July 18, 1985, recorded
in Deed Book 9618, Page 37, aforesaid Records; as further amended by that
certain Third Amendment to Parking Deck and Easement Agreement, dated as of July
18, 1985, recorded in Deed Book 10290, Page 389, aforesaid Records; as further
amended by that certain Declaration of Release dated December 22, 1986, recorded
in Deed Book 10561, Page 358, aforesaid Records; as further amended by that
certain Fourth Amendment to Parking Deck and Easement Agreement, dated as of
August 11, 1988, recorded in Deed Book 11790, Page 76, aforesaid Records.
(b) Reciprocal Easement Agreement by and among Robinson-Humphrey
Properties, Inc., R-H Associates Bldg. II Corp. and Atlanta Financial Center
Associates, dated July 18, 1985, recorded in Deed Book 9618, Page 68, aforesaid
Records; as amended by that certain First Amendment to Reciprocal Easement
Agreement, dated as of July 18, 1985, recorded in Deed Book 10290, Page 411,
aforesaid Records; as further amended by that certain Declaration of Release,
dated December 22, 1986, recorded in Deed Book 10561, Page 358, aforesaid
Records; as further amended by that certain Second Amendment to Reciprocal
5
EXHIBIT 'A'
<PAGE> 9
Easement Agreement, dated as of August 11, 1988, recorded in Deed Book 11790,
Page 69, aforesaid Records.
(c) Agreement by and among R-H Associates Bldg. II Corp., Atlanta
Financial Center Associates, Robinson-Humphrey Properties, Inc. and the
Department of Transportation the State of Georgia, dated July 18, 1985, recorded
in Deed Book 9618, Page 145, aforesaid Records; as amended by that certain
Amendment to Agreement dated as of July 18, 1985 recorded in Deed Book 10290,
Page 289, aforesaid Records; the interest of R-H Associates Bldg. II Corp.
thereunder having been assigned to Two Atlanta Financial Center Associates by
that certain Assignment and Assumption (DOT Agreements), dated July 28, 1987
recorded in Deed Book 10973, Page 179, aforesaid Records.
(d) Agreement Regarding Georgia 400 Extension, by and among R-H
Associates Bldg. II Corp., Robinson-Humphrey Properties, Inc., Atlanta Financial
Center Associates, MONY Mortgage Investors, and The Mutual Life Insurance
Company of New York dated July 18, 1985, recorded in Deed Book 9623, Page 75,
aforesaid Records; as amended by that certain First Amendment to Agreement
Regarding Georgia Highway 400 Extension, dated as of July 18, 1985, recorded in
Deed Book 10290, Page 419, aforesaid Records; the interest of R-H Associates
Bldg. II Corp. thereunder having been assigned to Two Atlanta Financial Center
Associates by that certain Assignment and Assumption (DOT Agreements) dated July
28, 1987, recorded in Deed Book 10973, Page 179, aforesaid Records.
(e) Limited Warranty Deed from Atlanta Financial Center Associates, a Georgia
joint venture composed of The Mutual Life Insurance Company of New York and R-H
Building Partners, Ltd., to the Department of Transportation of the State of
Georgia dated April 4, 1989, filed for record July 19, 1989 at 9:30 a.m.,
recorded in Deed Book 12667, Page 127 aforesaid Records.
(f) Limited Warranty Deed from Two Atlanta Financial Center Associates,
a Georgia joint venture composed of The Mutual Life Insurance Company of New
York and R-H Associates Bldg. II Corp., to the Department of Transportation of
the State of Georgia, dated April 4, 1989, filed for record July 19, 1989 at
9:30 am., recorded in Deed Book 12667, Page 141, aforesaid Records.
PHASE III
All that tract or parcel of land lying and being in Land Lot 45, 17th District,
City of Atlanta, Fulton County, Georgia and being more particularly described as
follows:
TO FIND THE TRUE POINT OF BEGINNING begin at a point formed by the intersection
of the easternmost right-of-way line of Peachtree Road (a variable right-of-way
being 80 feet at this point) with the northernmost right-of-way line of Highland
Drive (a 50-foot right-of-way proceed thence in a northeasterly direction along
the aforesaid easternmost right-of-way line a distance of 365.1 feet to a point;
proceed thence along the aforesaid easternmost right-of-way line north
13(degree)43'08" east a distance of 37.39 feet to a point; proceed thence
6
EXHIBIT 'A'
<PAGE> 10
along the aforesaid easternmost right-of-way line, following the curvature
thereof to the right, an arc distance of 179.12 feet to a point, said arc being
subtended by a chord 178.99 feet in length and bearing north 20(degree)26'46"
east; proceed thence in a northeasterly direction along the aforesaid
easternmost right-of-way line north 26(degree)16'11" east a distance of 48.21
feet to a point; proceed thence in a northeasterly direction along the aforesaid
eastern most right-of-way line north 28(degree)17'14" east a distance of 48.18
feet to a point; proceed thence in a northeasterly direction along the aforesaid
easternmost right-of-way line north 30(degree)11'09" east a distance of 48.15
feet to a point; proceed thence in a northeastern direction along the aforesaid
easternmost right-of-way line north 32(degree)20'44" east a distance of 57.74
feet to a point; proceed thence in a northeasterly direction along the aforesaid
easternmost right-of-way line north 55(degree)03'02" east a distance of 8.44
feet to a point proceed thence in a northeasterly direction along the aforesaid
easternmost right-of-way line north 55(degree)32'07" east a distance of 18.02
feet to a point; proceed thence in a southeasterly direction along the aforesaid
easternmost right-of-way line, following the curvature thereof to the left, an
arc distance of 7.77 feet to a point, said arc being subtended by a chord 7.77
feet in length and bearing south 31(degree)52'33" east; proceed thence in a
northeasterly direction along the aforesaid easternmost right-of-way line north
35(degree)10'06" east a distance of 74.16 feet to a point; proceed thence in a
southeasterly direction along the aforesaid easternmost right-of-way line south
58(degree)48'33" east a distance of 6.36 feet to a point; proceed thence in a
northeasterly direction along the aforesaid easternmost right-of-way line north
31(degree)11'26" east a distance of 10.05 feet to a point; proceed thence in a
southeasterly direction along the aforesaid easternmost right-of-way line south
58(degree)48'29" east a distance of 19 feet to a point; proceed thence in a
northeasterly direction along the aforesaid easternmost right-of-way line north
31(degree)11'26" east a distance of 24.83 feet to a point; proceed thence in a
northwesterly direction along the aforesaid easternmost right-of-way line north
58(degree)48'44" west a distance of 19 feet to a point; proceed thence in a
northeasterly direction along the aforesaid easterly right-of-way line north
31(degree)11'23" east a distance of 22.01 feet to a point; proceed thence in a
northeasterly direction along the aforesaid easterly right-of-way line north
40(degree)58'56" east a distance of 74.76 feet to a point, said point being THE
TRUE POINT OF BEGINNING.
FROM THE TRUE POINT OF BEGINNING THUS ESTABLISHED proceed thence in a
northeasterly direction along the aforesaid easternmost right-of-way line north
21(degree)19'11" west a distance of 7.91 feet to a point; proceed thence in a
northeasterly direction along the aforesaid easternmost right-of-way line north
23(degree)34'11" east a distance of 38.38 feet to a point; proceed thence in a
northeasterly direction along the aforesaid easternmost right-of-way line north
40(degree)15'17" east a distance of 62.82 feet to a point; proceed thence in a
northeasterly direction along the aforesaid easternmost right-of-way line north
39(degree)15'08" east a distance of 49.32 feet to a point; thence leave said
right-of-way line and proceed thence south 48(degree)03'44" East a distance of
95.71 feet to a point; proceed thence south 13(degree)51'45" east a distance of
220.34 feet to a point; proceed thence south 76(degree)11'25" west a distance of
74.14 feet to a point; proceed thence north 74(degree)31'03" west a distance of
62.79 feet to a point; proceed thence south 31(degree)11'25" west a distance of
3.77 feet to a point; proceed thence in a northwesterly direction along the arc
of a curve to the right, an arc distance of 131.99 feet to a point, said arc
being subtended by a chord 131.97 feet in length and bearing north
26(degree)58'00" west to a point; proceed thence north 21(degree)19'11" west a
7
EXHIBIT 'A'
<PAGE> 11
distance of 38.37 feet to a point; said point being THE TRUE POINT OF BEGINNING,
said tract or parcel of land being more particularly shown as "Phase III" on
that certain survey prepared by Michael F. Lawler, Georgia Registered Land
Surveyor no. 1946, prepared for Overseas Partners Capital Corp., dated December
20, 1993, last revised August 27, 1996, and bearing file no. 93153, which survey
is incorporated herein by this reference.
LESS AND EXCEPT that portion of the above property conveyed by that certain I
Limited Warranty Deed from R-H Associates Bldg III.Corp., a Georgia corporation
to the Department of Transportation of the State of Georgia, dated April 4,
1989, filed for record July 19, 1989 at 9:30 a.m., recorded in Deed Book 12667,
Page 222, aforesaid Records.
TOGETHER WITH all easements appurtenant to the above property created
by the following:
(a) Parking Deck and Easement Agreement among Michael G. Carlos, George C.
Carlos, Andrew C. Carlos and R-H Building Partners, Ltd., dated July 15, 1981,
recorded at Deed Book 7903, page 165, Fulton County Records, as amended by
Amendment of Parking Deck and Easement Agreement dated July 15, 1981, recorded
at Deed Book 7903, page 385, said Amendment having been terminated by Agreement
dated September 20, 1982, recorded at Deed Book 8255, page 475, as further
amended by Second Amendment to Parking Deck and Easement Agreement dated July
18, 1985, recorded at Deed Book 9618, page 37, and Third Amendment to Parking
Deck and Easement Agreement dated as of July 18, 1985, recorded in Deed Book
10290, page 389 and Declaration of Release dated December 22, 1986, recorded at
Deed Book 10561, page 358, aforesaid records, as further amended by Fourth
Amendment to Parking Deck and Easement Agreement dated as of August 11, 1988,
recorded in Deed Book 11790, page 76, aforesaid records.
(b) Reciprocal Easement Agreement among Atlanta Financial Center
Associates, R-H Associates Bldg. II Corp. and Robinson-Humphrey Properties,
Inc., dated July 18, 1985, recorded in Deed Book 9618, page 68, aforesaid
records, as amended by First Amendment to Reciprocal Easement Agreement dated as
of July 18, 1985, recorded at Deed Book 10290, page 411, as further amended by
Declaration of Release dated December 22, 1986, recorded at Deed Book 10561,
page 358, aforesaid records, as amended by Second Amendment to Reciprocal
Easement Agreement dated as of August 11, 1988, recorded in Deed Book 11790,
page 69, aforesaid records.
(c) Agreement among R-H Associates Bldg. II Corp., Atlanta Financial Center
Associates, Robinson-Humphrey Properties, Inc. and Department of Transportation
of State of Georgia, dated July 18, 1985, recorded at Deed Book 9618, page 145,
aforesaid records, as amended by Agreement dated as of July 18, 1985, recorded
at Deed Book 10290, page 289; the interest of R-H Associates Bldg. II Corp.
thereunder having been assigned to Two Atlanta Financial Center Associates by
that certain Assignment and Assumption (DOT Agreements), dated July 28, 1987,
recorded in Deed Book 10973, page 179, aforesaid records.
8
EXHIBIT 'A'
<PAGE> 12
(d) Encroachment Easement Agreement by and between Robinson-Humphrey
Properties, Inc. and Two Atlanta Financial Center Associates dated December 24,
1987, recorded at Deed Book 11269, page 265, aforesaid records.
(e) Agreement Regarding Georgia 400 Highway Extension among R-H Associates
Bldg. II Corp., Robinson-Humphrey Properties, Inc., Atlanta Financial
Center Associates, Trustees of Mony Mortgage Investors and The Mutual Life
Insurance Company of New York dated as of July 18, 1985, recorded at Deed Book
9623, page 75, aforesaid records, as amended by First Amendment to Agreement
Regarding Georgia 400 Highway Extension dated as of July 18, 1985, recorded at
Deed Book 10290, page 419, aforesaid records; the interest of R-H Associates
Bldg. II Corp. thereunder having been assigned to Two Atlanta Financial Center
Associates by that certain Assignment and Assumption (DOT Agreements), dated
July 28, 1987, recorded in Deed Book 10973, page 179, aforesaid records.
(f) Limited Warranty Deed from Robinson-Humphrey Properties, Inc. to
Department of Transportation of State of Georgia, dated July 18, 1985, recorded
at Deed Book 9618, page 288, aforesaid records, as corrected by Corrective
Limited Warranty Deed dated as of July 18, 1985, recorded at Deed Book 10290,
page 372, aforesaid records.
(g) Limited Warranty Deed from R-H Associates Bldg. III Corp., a Georgia
corporation to the Department of Transportation of the State of Georgia, dated
April 4, 1989, filed for record July 19, 1989 at 9:30 am., recorded in Deed Book
12667, page 222, aforesaid records.
PHASE IV
All that tract or parcel of land lying and being in Land Lot 45, 17th District,
City of Atlanta, Fulton County, Georgia and being more particularly described as
follows:
TO FIND THE TRUE POINT OF BEGINNING begin at a point formed by the intersection
of the easternmost right-of-way line of Peachtree Road (a variable right-of-way
being 80 feet at this point) with the northernmost right-of-way line of Highland
Drive (a 50-foot right-of-way) and proceed thence in a northeasterly direction
along the aforesaid easternmost right-of-way line a distance of 365.1 feet;
proceed thence along the aforesaid easternmost right-of-way line, north
13(degree)43'08" east a distance of 37.39 feet to a point; proceed thence in a
northeasterly direction along the aforesaid easternmost right-of-way line,
following the curvature thereof to the right, an arc distance of 179.12 feet to
a point, said arc being subtended by a chord 178.99 feet in length and bearing
north 20(degree)26'46" east; proceed thence in a northeasterly direction along
the aforesaid easternmost right-of-way line north 26(degree)16'11" east a
distance of 48.21 feet to a point; proceed thence in a northeasterly direction
along the aforesaid easternmost right-of-way line north 28(degree)17'14" east a
distance of 48.18 feet to a point; proceed thence in a northeasterly direction
along the aforesaid easternmost right-of-way line north 30(degree)11'09" east a
distance of 48.15 feet to a point; proceed thence in a northeasterly direction
along the aforesaid easternmost right-of-way line north 32(degree)20'44" east a
distance of 57.74 feet to a point; proceed thence in a northeasterly direction
along the aforesaid easternmost right-of-way line north 55(degree)03'02" east a
distance
9
EXHIBIT 'A'
<PAGE> 13
of 8.44 feet to a point; proceed thence in a northeasterly direction along the
aforesaid easternmost right-of-way line north 55(degree)32'07" east a distance
of 18.02 feet to a point; proceed thence in a southeasterly direction along the
aforesaid easternmost right-of-way line, following the curvature thereof to the
left, an arc distance of 7.77 feet to a point, said arc being subtended by a
chord 7.77 feet in length and bearing south 31(degree)52'33" east, said point
being THE TRUE POINT OF BEGINNING.
FROM THE TRUE POINT OF BEGINNING THUS ESTABLISHED proceed thence in a
northeasterly direction along the aforesaid easternmost right-of-way line north
35(degree)10'06" east a distance of 74.16 feet to a point; proceed thence in a
southeasterly direction along the aforesaid easternmost right-of-way line south
58 (degree)48'33" east a distance of 6.36 feet to a point; proceed thence in a
northeasterly direction along the aforesaid easternmost right-of-way Line north
31(degree)11'26" east a distance of 10.05 feet to a point; proceed thence in a
southeasterly direction along the aforesaid easternmost right-of-way line south
58(degree)48'29" east a distance of 19 feet to a point; proceed thence in a
northeasterly direction along the aforesaid easternmost right-of-way line north
31(degree)11'26" east a distance of 24.83 feet to a point; proceed thence in a
northwesterly direction along the aforesaid easternmost right-of-way Line north
58(degree)48'44" west a distance of 19 feet to a point; proceed thence in a
northeasterly direction along the aforesaid easternmost right-of-way Line north
31(degree)11'23" east a distance of 22.01 feet to a point; proceed thence in a
northeasterly direction along the aforesaid easternmost right-of-way Line north
40(degree)58'56" east a distance of 74.76 feet to a point; thence leave said
right-of-way line and proceed thence south 21(degree)19'11" east a distance of
3837 feet to a point; proceed thence in a southeasterly direction along the arc
of a curve to the left, an arc distance of 131.99 feet to a point, said arc
being subtended by a chord 131.97 feet in length and bearing south
26(degree)58'00" east; proceed thence south 31(degree)11'25" west a distance of
193.49 feet to a point; proceed thence in a northwesterly direction along the
arc of a curve to the right, an arc distance of 14.05 feet to a point, said arc
being subtended by a chord 14.05 feet in length and bearing north 31(degree)
08'45" west, proceed thence in a northwesterly direction along the arc of a
curve to the right, an arc distance of 171.77 feet to a point, said arc being
subtended by a chord 171.77 feet in length and bearing north 32(degree)46'15"
west, said point being located on the aforesaid easternmost right-of-way line
and BEING THE TRUE POINT OF BEGINNING, SAID TRACT OR parcel of land being more
particularly shown as "Phase IV" on that certain survey by Mallett & Associates
bearing the seal and certification of Michael F. Lawler, Georgia Registered Land
and Surveyor No. 1946, prepared for Overseas Partners Capital Corp., dated
December 20, 1993, last revised August 27, 1996, and bearing file no. 93153,
which survey is incorporated herein by this reference.
LESS AND EXCEPT that portion of the above property conveyed by the following:
(1) Limited Warranty Deed from Robinson-Humphrey Properties, Inc. to the
Department of Transportation of the State of Georgia, dated July 18, 1985,
recorded in Deed Book 9618, Page 288, aforesaid Records; as corrected by that
certain Corrective Warranty Deed recorded in Deed Book 10290, Page 372,
aforesaid Records.
10
EXHIBIT 'A'
<PAGE> 14
(2) Limited Warranty Deed from Robinson-Humphrey Properties, Inc., a
Georgia corporation to the Department of Transportation of the State of Georgia,
dated April 4, 1989, filed for record July 19, 1989 at 9:30 a.m., recorded in
Deed Book 12667, page 163, aforesaid Records.
(3) Limited Warranty Deed from Robinson-Humphrey Properties, Inc., a
Georgia corporation to the Department of Transportation of the State of Georgia,
dated April 4, 1989, filed for record July 19, 1989 at 9:30 a.m., recorded in
Deed Book 12667, Page 192, aforesaid Records.
TOGETHER WITH all easements appurtenant to the above property created by the
following:
(a) Parking Deck and Easement Agreement by and among Michael C. Carlos,
George C. Carlos, Andrew C. Carlos, and R-H Building Partners, Ltd., dated July
15, 1981, recorded in Deed Book 7903, Page 165, aforesaid Records; as amended by
that certain Amendment of Parking Deck and Easement Agreement, dated July 15,
1981, recorded in Deed Book 7903, Page 385, aforesaid Records (said Amendment
having been terminated by Agreement dated September 20, 1982, recorded in Deed
Book 8255, Page 475, aforesaid Records); as further amended by Second Amendment
to Parking Deck and Easement Agreement, dated July 18, 1985, recorded in Deed
Book 9618, Page 37, aforesaid Records; as further amended by that certain Third
Amendment to Parking Deck and Easement Agreement, dated as of July 18, 1985,
recorded in Deed Book 10290, Page 389, aforesaid Records; as further amended by
that certain Declaration of Release dated December 22, 1986, recorded in Deed
Book 10561, Page 358, aforesaid Records; as further amended by that certain
Fourth Amendment to Parking Deck and Easement Agreement, dated as of August 11,
1988, recorded in Deed Book 11790, Page 76, aforesaid Records.
(b) Reciprocal Easement Agreement by and among Robinson-Humphrey Properties,
Inc., R-H Associates Bldg. II Corp. and Atlanta Financial Center Associates,
dated July 18, 1985, recorded in Deed Book 9618, Page 68, aforesaid Records; as
amended by that certain First Amendment to Reciprocal Easement Agreement, dated
as of July 18, 1985, recorded in Deed Book 10290, Page 411, aforesaid Records;
as further amended by that certain Declaration of Release, dated December 22,
1986, recorded in Deed Book 10561, Page 358, aforesaid Records; as further
amended by that certain Second Amendment to Reciprocal Easement Agreement, dated
as of August 11, 1988, recorded in Deed Book 11790, Page 69, aforesaid Records.
(c) Agreement by and among R-H Associates Bldg. II Corp., Atlanta Financial
Center Associates, Robinson-Humphrey Properties, Inc. and the Department of
Transportation of the State of Georgia, dated July 18, 1985, recorded in Deed
Book 9618, Page 145, aforesaid Records; as amended by that certain Amendment to
Agreement dated as of July 18, 1985, recorded in Deed Book 10290, Page 289,
aforesaid Records; the interest of R-H Associates Bldg. II Corp. thereunder
having been assigned to Two Atlanta Financial Center Associates by that certain
Assignment and Assumption (DOT Agreements), dated July 28, 1987, recorded in
Deed Book 10973, Page 179, aforesaid Records.
11
EXHIBIT 'A'
<PAGE> 15
(d) Agreement Regarding Georgia 400 Extension, by and among R-H Associates
Bldg. II Corp., Robinson-Humphrey Properties, Inc., Atlanta Financial Center
Associates, MONY Mortgage Investors, and The Mutual Life Insurance Company of
New York dated July 18, 1985, recorded in Deed Book 9623, Page 75, aforesaid
Records; as amended by that certain First Amendment to Agreement Regarding
Georgia Highway 400 Extension, dated as of July 18, 1985, recorded in Deed Book
10290, Page 419, aforesaid Records; the interest of R-H Associates Bldg. II
Corp. thereunder having been assigned to Two Atlanta Financial Center Associates
by that certain Assignment and Assumption (DOT Agreements) dated July 28, 1987,
recorded in Deed Book 10973, Page 179, aforesaid Records.
(e) Limited Warranty Deed from Robinson-Humphrey Properties, Inc. to the
Department of Transportation of the State of Georgia, dated July 18, 1985,
recorded in Deed Book 9618, Page 288, aforesaid Records; as corrected by that
certain Corrective Warranty Deed recorded in Deed Book 10290, Page 372,
aforesaid Records.
(f) Limited Warranty Deed from Robinson-Humphrey Properties, Inc., a
Georgia corporation to the Department of Transportation of the State of Georgia,
dated April 4, 1989, filed for record July 19, 1989 at 9:30 a.m., recorded in
Deed Book 12667, Page 163, aforesaid Records.
(g) Limited Warranty Deed from Robinson-Humphrey Properties, Inc., a
Georgia corporation to the Department of Transportation of the State of Georgia,
dated April 4, 1989, filed for record July 19, 1989 at 9:30 a.m., recorded in
Deed Book 12667, Page 192, aforesaid Records.
12
EXHIBIT 'A'
<PAGE> 16
SCHEDULE OF SERVICE CONTRACTS
1. Management Agreement between Balcor Property Management, Inc. as Agent
for Atlanta Financial Center Associates, as Owner, and APCOA, Inc., as
Operator, dated September 21, 1993; as amended by Amendment to
Management Agreement, with Allegiance Realty Group, Inc. as Agent for
The Mutual Life Insurance Company of New York as Owner, and APCOA, Inc.
as Operator, dated October 12, 1994.
2. Memorandum dated February 7, 1996 from Terry McDurmon to Bert S.
Calvert and Libby McClay (all of ARES) regarding Cellular Phone, Pagers
and Radios. Cellular Phone with AirTouch Cellular; and Pagers with
AirTouch Paging and Mobilecomm.
3. Lease Agreement No. 80956 between Alco Capital Resource, Inc. and
Allegiance Realty Group, Inc. as agent for Mutual of New York dated
September 20, 1994 for fax machine.
4. Drop Box Agreement between Airborne Express and ARES, Inc. dated
December 27, 1995.
5. Letter Agreement from Robinson-Humphrey Properties, Inc. to
Barkin-Leeds Ltd. dated February 13, 1990 regarding rotating art
exhibit.
6. Service Contract between Allegiance Realty Group, Inc. as Agent and
Barton Protective Services, Inc., dated March 30, 1994 for contract
security.
7. Memorandum dated January 1, 1996 from Whitney L. Shepherd [of ARES] to
Buckhead Florist file regarding verbal agreement to provide weekly
flower arrangements in the lobbies of the buildings and management and
accounting offices.
8. P.M. Agreement between Cummins-Onan South and Two Atlanta Financial
Center Associates, dated March 8, 1993 for emergency generator in East
Tower.
9. P.M. Agreement between Cummins-Onan South and Atlanta Financial Center
Associates, dated March 8, 1993 for emergency generator in South Tower.
10. P.M. Agreement between Cummins-Onan South and R-H Assoc. Bldg.III
Corp., dated March 8, 1993 for emergency generator in North Tower.
11. Chiller Operation Assurance Program Service Agreement between
Allegiance Realty Group as Managing Agents for MONY and Building
Systems and Services Division [off] Carrier Corporation, dated May 10,
1994 (South Tower).
EXHIBIT 'B'
<PAGE> 17
12. Carrier Operation Assurance Program Service Agreement between
Allegiance Realty Group as Managing Agents for R-H Associates Building
III Corporation and Building Systems and Services Division [of] Carrier
Corporation, dated May 10, 1994 (North Tower).
13. Carrier Operation Assurance Program between Allegiance Realty Group as
Managing Agents for MONY and Building Systems and Services Division
(of] Carrier Corporation, dated May 10, 1994 (East Tower).
14. Service Contract between The Mutual Life Insurance Company of New York
by ARES, Inc. and Distribution Associates South, Inc., dated January 1,
1995 for card access equipment maintenance.
15. Lighting Retrofit Proposal and Agreement of Purchase between E. Sam
Jones Distributor, Inc. and Allegiance Realty Group, Inc. as Agent for
The Mutual Life Insurance Company of New York dated April 18, 1994.
16. Correspondence and Invoice Re: Service Contract between Facility
Management Systems, Inc. and Ares, Inc., dated November 8, 1995 for
Tour Watch maintenance.
17. Customer Convenience Network Placement Agreement between Federal
Express Corporation and ARES, Inc., dated January 24, 1996.
18. Delivery and Acceptance Notice between First United Leasing Corp. and
The Mutual Life Insurance Company of New York, dated October 4, 1995
for fax machine.
19. Contract for Electric Power Service between R-H Associates Bldg. III
Corp. and Georgia Power Company dated September 20, 1989.
20. Contract for Electric Power Service between Two Atlanta Financial
Center Assoc. and Georgia Power Company dated January 6, 1992.
21. Contract for Electric Power Service between R-H Associates Bldg. III
Corp. and Georgia Power Company dated July 9, 1991.
22. Contract for Electric Power Service and Schedule TOU-1 between R-H
Bldg. Partners Ltd. and Georgia Power Company dated March 15, 1988.
23. Demand Control-Meter Contract between Georgia Power Company and R-H
Associates Bldg. III Corp., dated September 19, 1991 for electric load
equipment.
24. Master Contract for Electric Power Service between Georgia Power
Company and Allegiance Realty Group, Inc. as agent for The Mutual Life
Insurance Company of New York dated August 23, 1994 for electrical
energy.
2
EXHIBIT 'B'
<PAGE> 18
25. Service Contract between ARES, Inc., as Agent, for The Mutual Life
Insurance Company of New York and Gibbs Landscape Company, dated
January 23, 1996 for exterior landscape.
26. Service Contract between The Mutual Life Insurance Company of New York
by ARES, Inc., as Agent, and Gibbs Landscape Company, dated April 1,
1995 for interior plant maintenance.
27. Fire Protection System Inspection Agreement between R-H Assoc. Bldg.III
Corp. and Automatic Sprinkler Corporation of America (as assigned to
Grinnell Corporation), dated October 27, 1992 (North Tower).
28. Fire Protection System Inspection Agreement between Atlanta Financial
Center Assoc. and Automatic Sprinkler Corporation of America (as
assigned to Grinnell Corporation), dated October 27, 1992 (South
Tower).
29. Fire Protection System Inspection Agreement between Robinson Humphrey
Properties, Inc., as Agent for Two Atlanta Financial Center Associates
and Automatic Sprinkler Corporation of America (as assigned to
Grinnell Corporation), dated May 18, 1989 (East Tower).
30. Agreement between ARES, Inc. as agent for The Mutual Life Insurance
Company of New York and Instant Color, Inc., dated February 22, 1996
for seasonal color beds around property.
31. Service Contract between Allegiance Realty Group, Inc. as Agent, and
I&S Operations, Inc., dated May 9, 1994 for co-generation gear
maintenance.
32. Open-End Finance Lease Agreement between Leased Vehicles Company, Inc.
and Allegiance Realty Group, Inc. as agent for The Mutual Life
Insurance Company of New York and R-H Associates Building III Corp.,
dated December 15, 1986 for pick up truck and 20-foot bus.
33. [Elevator Maintenance Agreement] between Millar Elevator Service
Company and Atlanta Financial Center Associates, Two Atlanta Financial
Center Associates [and] R-H Associates Bldg. III Corp. dated April 1,
1993 (South and East Towers) with Amendment dated September 24, 1993
(adding North Tower) and Amendment dated March 28, 1994 (adding parking
garage).
34. Agreement between National Utility Service, Inc. and Robinson-Humphrey
Properties, Inc. dated November 29, 1988, for energy cost control
program.
35. Memorandum dated January 1, 1996 from Whitney L. Shepherd [of ARES] to
Northlake Industries File regarding verbal agreement for quarterly
carpet cleaning.
3
EXHIBIT 'B'
<PAGE> 19
36. Contract between Atlanta Financial Center and Atlanta/Fulton County
Emergency Management Agency dated December 15, 1993 for NovAlert
Emergency Contact
37. Pest Control Service Agreement between Atlanta Fin Center Associates
and Orkin Exterminating Co., Inc., dated December 21, 1982.
38. Pest Control Service Agreement between R-H Associates Bldg. III Corp.
and Orkin Exterminating Company, Inc., dated September 19, 1989.
39. Pest Control Service Agreement between Two Atlanta Financial Center
Associates and Orkin Exterminating Company, Inc., dated June 12, 1987.
40. Agreement between ARES and Robbie R. Gring, Inc., dated February 23,
1996 for marketing services.
41. Letter Agreement between Balcor Property Management, Inc. and Shoemaker
Furniture, dated March 12, 1993 for mill work
42. Agreement between Simplex Time Recorder Co. and R-H Associates Building
III Corporation, dated May 6, 1993 for life safety fire alarm system
testing and maintenance (North Tower).
43. Agreement between Simplex Time Recorder Co. and Two Atlanta Financial
Center Associates, dated May 14, 1993 for life safety fire alarm system
testing and maintenance (East Tower).
44. Agreement between Simplex Time Recorder Co. and Atlanta Financial
Center Associates, dated May 14, 1993 for life safety fire alarm system
testing and maintenance (South Tower).
45. Agreement between Simplex Time Recorder Co. and Allegiance Realty
Group, Inc., as Agent For Atlanta Financial Center Owners, dated
November 16, 1993 for life safety fire alarm system testing and
maintenance (Parking Deck).
46. Total Copy Coverage Maintenance Agreement between Standard Office
Systems and ARES, Inc. as Agent for The Mutual Life Insurance Company
of New York dated March 15, 1995.
47. Equipment Lease Agreement between Standard Office Systems and ACES,
Inc. as Agent for The Mutual Life Insurance Company of New York dated
March 15, 1995 for mita copier.
48. [Pager Contract] between MobileComm and R.H. Building 3 Corp. [and]
ARES, Inc. dated April 18, 1996.
4
EXHIBIT 'B'
<PAGE> 20
49. Master Lease Purchase Equipment Agreement between UT Leasing Services,
Inc. and Two Atlanta Financial Center Associates, dated ______ , 1991
for demand equipment purchase leases.
50. Service Contract between The Mutual Life Insurance Company of New York
by ARES, Inc. and United Waste Service, Inc., dated June 1, 1995 for
waste removal services for one (1) recycling compactor.
51. Service Contract between The Mutual Life Insurance Company of New York
by ARES, Inc. and United Waste Service, Inc., dated May 22, 1995 for
waste removal services for two (2) waste compactors.
52. Agreement between United Parcel Service, Inc. and Atlanta Financial
Center, dated June 30, 1995 (South Tower).
53. Agreement between United Parcel Service, Inc. and Two Atlanta Financial
Center Assoc., dated January 1, 1993 (East Tower).
54. Service Contract between The Mutual Life Insurance Company of New York
by ARES, Inc. and Valcourt Building Services of Georgia, Inc., dated
March 29, 1995 for window washing.
55. Postage Stamp Vending Agreement between Wooten Postage Stamp Vending,
Inc. and Two Atlanta Financial Center Associates, dated January 14,
1991.
56. Service Contract between The Mutual Life Insurance Company of New York
by ARES, Inc. and Perimeter Maintenance Corporation, dated September
22, 1995 for janitorial and day porter services.
57. Property Tax Consulting Agreement between ARES, Inc. and Southern Tax
Consultants, d/b/a The Stallings Group dated June 6, 1996 for the 1996
ad valorem tax program.
5
EXHIBIT 'B'
<PAGE> 1
EXHIBIT 10.tt
PROMISSORY NOTE
$79,700,000.00 Atlanta, Georgia October 23, 1996
FOR VALUE RECEIVED, OVERSEAS PARTNERS (AFC), INC., a Georgia corporation,
having an office at 115 Perimeter Center Place, Suite 940, Atlanta, Georgia
30346 ("Maker"), promises to pay to NEW YORK LIFE INSURANCE COMPANY, a New York
mutual insurance company, having its principal office at 51 Madison Avenue, New
York, New York 10010 ("Holder"), or order, at its principal office in New York
City, New York, or at such other place as may be designated in writing by
Holder, the principal sum of SEVENTY-NINE MILLION SEVEN HUNDRED THOUSAND AND
NO/100 DOLLARS ($79,700,000.00) (the "Principal Indebtedness"), lawful money of
the United States, together with interest thereon at the rate of Seven and
Eighty Hundredths percent (7.80%) per annum, payable in monthly installments of
principal and interest in the sum of Five Hundred Seventy-Three Thousand Seven
Hundred Thirty-Seven and no/100 Dollars ($575,737.00), commencing on the tenth
(10th) day of December, 1996, and payable on the tenth day (10th) of each and
every month thereafter for one hundred nineteen (119) months, with the last
installment being due and payable on November 10, 2006 (the "Maturity Date"), at
which time the entire unpaid balance together with accrued interest shall be due
and payable. Such monthly installments shall be applied first to the payment of
interest and the balance to the reduction of principal. Maker shall also pay one
(1) installment of interest only which shall be due and payable on the date of
disbursement hereunder, and represents interest from the date of disbursement
through and including November 9, 1996.
This Note is secured by, among other things, (i) a Deed to Secure Debt,
Assignment of Leases and Rents and Security Agreement (the "Security Deed")
dated as of the date hereof made by Maker to Holder and encumbering certain
premises situate in Fulton County, Georgia, known as Atlanta Financial Center
and the improvements thereon, along with other property more particularly
described in the Security Deed (collectively the "Secured Property"), and (ii)
an Assignment of Leases, Rents, Income and Cash Collateral dated as of the date
hereof from Maker to Holder. Each of the documents mentioned in this paragraph
and all other documents either evidencing or further securing the Principal
Indebtedness are collectively referred to herein as the "Loan Documents," and
the terms and provisions of the Loan Documents are hereby fully incorporated
into this Note by this reference.
From and after the earlier to occur of (i) an Event of Default (as defined
in the Security Deed) or (ii) maturity of this Note, either according to its
terms or as the result of a declaration of maturity made by Holder in accordance
with the terms hereof, the entire principal balance remaining unpaid hereunder
shall automatically bear an annual interest rate (in place of the rate
hereinabove specified) equal to the rate of five percent (5%) per annum greater
than the interest rate set forth above (the "Increased Rate") unless applicable
law requires a lesser such rate, in which event the maximum rate permitted by
law may be charged by Holder.
<PAGE> 2
No privilege is reserved to prepay the Principal Indebtedness prior to
December 10, 1999 (the "Closed Period"). Beginning on December 10, 1999,
privilege is reserved by Maker to prepay the entire principal balance together
with accrued interest thereon to the date of payment on such date or any
subsequent monthly installment date upon not less than ninety (90) days' prior
written notice to Holder of Maker's intention to make such prepayment, provided
there is paid, in addition to interest accrued to the date of such prepayment, a
prepayment charge which shall be equal to the greater of (a) one percent (1%)
of the principal balance prepaid, or (b) the amount computed by multiplying the
principal balance prepaid by the percentage derived by multiplying (i) the
amount by which 7.80% exceeds the yield-to-maturity percentage for the U.S.
Treasury Note closest in maturity to the then remaining term of the loan
evidenced hereby as reported in The Wall Street Journal (or, if The Wall Street
Journal is no longer published, some other daily financial publication of
national circulation as selected by Holder) on the fifth (5th) business day
preceding the date of prepayment, by (ii) the quotient (rounded to the nearest
one-hundredth) derived by dividing the number of days from and including the
date of prepayment, to the Maturity Date by 365, discounted to present value at
the time of prepayment, as determined by discounting same at the U.S. Treasury
Note rate described above. In the event that full prepayment is made within
ninety (90) days of the Maturity Date and after not less than thirty (30) days'
prior written notice to Holder, there shall be no prepayment charge.
In the event the outstanding principal balance hereof shall become due and
payable as a result of (a) an Event of Default (as such term is defined in the
Security Deed) causing acceleration under this Note or the Loan Documents, which
Event of Default shall be conclusively deemed to be a willful default for
purposes of avoiding the prepayment charges to which Holder is entitled; (b) the
exercise by Maker of any right of redemption or other action to prevent a
foreclosure of the Secured Property; or (c) an acceleration by Holder as a
result of the sale or further encumbrance of the Secured Property in violation
of the applicable provisions of the Security Deed; then, in such event, Maker
shall pay the prepayment charge which would otherwise be applicable hereunder;
or if at that time there is no such privilege of prepayment (e.g., during the
Closed Period), then, to the extent permitted by law, such prepayment charge
shall be calculated in the same manner as specified above.
Upon breach of any promise made or condition set forth in this Note or in
any of the other Loan Documents, including, without limitation, a failure to
make any payment of any installment of interest and/or principal as and when the
same becomes due and payable (whether by extension, acceleration, or otherwise)
and Maker's failure to cure such breach within the applicable grace period
provided in the Security Deed, if any, or if Maker should make an assignment for
the benefit of creditors, become insolvent, or be adjudged a bankrupt, or a
receiver, trustee, custodian, liquidator or like officer is appointed to take
custody, control or possession of any property subject to any lien, encumbrance
or security interest securing payment of this Note, or upon the occurrence of
any other Event of Default, then and in any such events, Holder may at its
option, declare this Note and
-2-
<PAGE> 3
the entire Principal Indebtedness to be immediately due and payable and
collectible then or thereafter as Holder may elect, regardless of the stated
Maturity Date.
Should the Principal Indebtedness or any part thereof be collected at law
or in equity, or in bankruptcy, receivership, or any other court proceeding
(whether at the trial or appellate level), or should this Note be placed in the
hands of attorneys for collection upon default, Maker agrees to pay, in addition
to the principal, prepayment charge, interest and any other outstanding amounts
due and payable hereon, all costs of collecting or attempting to collect this
Note and enforcing Holder's remedies under the Loan Documents, including
reasonable attorneys' fees actually incurred, at the normal and customary hourly
billing rates of the attorneys actually performing services, and expenses, and
the same shall constitute additional indebtedness secured by the Loan Documents.
Maker recognizes that any default in the payment of any installment of
principal and/or interest due hereunder on the date the same is due will result
in loss and additional expense to Holder in servicing the Principal
Indebtedness, handling such delinquent payments and meeting its other financial
obligations, and that the extent of such loss and additional expenses is
extremely difficult and impractical to ascertain. Maker therefore agrees that in
the event any installment of principal and/or interest due hereunder is not paid
on the date the same is due and payable, without regard to any grace periods, a
late charge of four percent (4%) of the overdue installment of principal and/or
interest shall be paid by Maker and that such amount is a reasonable estimate of
such loss and expense and may be charged by Holder, at its option, for the
purpose of defraying such loss and expense, unless applicable law requires a
lesser such charge, in which event the maximum rate permitted by such law may be
charged by Holder for said purposes.
The failure of Holder to exercise the option for acceleration of maturity,
foreclosure or any other remedies provided in the Loan Documents following any
Event of Default as aforesaid or to exercise any other option granted to it
hereunder, under the Security Deed or under any of the other Loan Documents, in
any one or more instances, or the acceptance by Holder of partial payments or
partial performance, shall not constitute a waiver of any such Event of Default,
but such option shall remain continuously in force. Acceleration of maturity,
once claimed hereunder by Holder, may at its option be rescinded by written
acknowledgment to such effect, but the tender and acceptance of partial payment
or partial performance alone shall not in any way affect or rescind such
acceleration of maturity.
Maker hereby covenants and agrees that, together with and in addition to
the monthly payments of principal and/or interest payable under the terms of
this Note, Maker will deposit with Holder of this Note or its agent, as directed
by Holder, until this Note is fully paid, installments of insurance premiums and
Impositions (as defined and required in the Security Deed). Amounts held
hereunder shall not be deemed to be trust funds, but may be commingled with the
general funds of Holder.
-3-
<PAGE> 4
It is the intention of Maker and Holder to conform strictly to the usury
laws now or hereafter in force in the State of Georgia, and any interest payable
under this Note, the Security Deed, the other Loan Documents, and/or any of the
other documents or instruments executed by Maker in connection with the loan
made or to be made hereunder shall be subject to reduction to the amount not in
excess of the maximum non-usurious amount allowed under the usury laws of the
State of Georgia as now or hereafter construed by the courts having jurisdiction
over such matters. If the aggregate of all interest (whether designated as
interest, service charges, points or otherwise) contracted for, chargeable or
receivable under this Note, the Security Deed and any other Loan Document should
exceed the maximum legal rate, it shall be deemed a mistake and such excess
shall be canceled automatically and, if theretofore paid, shall at the option of
Holder either be rebated to Maker or credited on the principal amount of this
Note, or, if the Note has been repaid, such excess shall be rebated to Maker. In
the event the Maturity Date is accelerated by reason of any provision of this
Note or by reason of an election by Holder resulting from an Event of Default
under the Loan Documents voluntary prepayment by Maker, or otherwise, then
earned interest may never include more than the maximum amount permitted by law,
computed from the dates of each advance of loan proceeds hereunder until
payment, and any interest in excess of the maximum amount permitted by law shall
be canceled automatically and, if theretofore paid, shall at the option of
Holder either be rebated to Maker or credited on the principal amount of this
Note or, if the Note has been repaid, the excess shall be rebated to the Maker.
This provision shall control every other provision of all agreements between
Maker and Holder.
Maker hereby waives presentment, protest, notice of protest, notice of
dishonor and diligence in collection, and any and all other notices and matters
of a like nature, except for those expressly required by the Security Deed or
this Note. Maker consents to any extension of time (whether one or more) of
payment hereof, release of all or any part of the security for the payment of
this obligation or release of any person or entity liable for payment of this
Note. Any such extension or release may be made without notice to any such party
and without discharging said party's liability hereunder.
This Note may not be changed orally, but only by an agreement in writing,
signed by the party against whom enforcement of any waiver, change, modification
or discharge s sought.
Maker agrees hereby to waive and renounce any and all homestead exemption
rights against debt evidenced hereby or any renewal or extension thereof.
No failure or delay on the part of Holder in exercising any right, power or
privilege under this Note and no course of dealing between Maker and Holder
shall operate as a waiver thereof; nor shall any single or partial exercise of
any right, power or privilege hereunder preclude any other or further exercise
thereof or the exercise of any other right power or privilege. The rights and
remedies herein expressly provided are cumulative and not exclusive of any
rights or remedies which Holder would otherwise have at law or
-4-
<PAGE> 5
equity. No notice to or demand on Maker in any case shall entitle Maker as a
result thereof to any other or further notice or demand in similar or other
circumstances or constitute a waiver of the right of Holder to any other or
further action in an circumstances without notice or demand except as expressly
provided in the Loan Documents.
Whenever in this Note one of the parties hereto is named or referred to,
the heirs legal representatives, successors and assigns of such party shall be
included and all covenants and agreements contained in this Note by or on behalf
of Maker or by behalf of Holder shall bind and inure to the benefit of such
party's heirs, legal representatives, successors and assigns, whether so
expressed or not.
The obligations of each person and entity comprising Maker shall be joint
and several.
The unenforceability or invalidity of any provision or provisions of this
Note as to any persons or entities or circumstances shall not render that
provision or those provisions unenforceable or invalid as to any other persons
or entities or circumstances, and all provisions hereof, in all other respects,
shall remain valid and enforceable.
Maker acknowledges that the ownership (and the continuation thereof) of the
Secured Property by Maker is of a material nature to the loan and the making of
the loan evidenced by this Note. Therefore, Maker agrees that in the event of
any transfer of all or any part of the Secured Property that is prohibited by
the terms of the Security Deed or any other Loan Document, howsoever evidenced
or occasioned, then, at the option of Holder, the entire Principal Indebtedness
along with all accrued interest thereon shall immediately become due and
payable.
In the event of any default by Maker under this Note, the Security Deed or
any other Loan Document, Holder shall have all rights reserved in this Note, the
Security Deed and every other Loan Document and shall have full recourse to the
Secured Property and to the other collateral given by Maker to secure this Note,
provided, however, that any judgment obtained by Holder in any proceeding to
enforce such rights shall be enforced only against the Secured Property and such
other collateral and Maker shall have no personal liability under any Loan
Document except as hereinafter expressly provided. Notwithstanding the
foregoing, Holder shall not in any way be prohibited from naming Maker or any of
its successors or assigns or any person holding under or through them as parties
to any actions, suits or other proceedings initiated by Holder to enforce such
rights or to foreclose its mortgage lien or otherwise realize upon any other
lien or security interest created in any other collateral given to secure the
payment of this Note. The foregoing restriction shall not apply to, and Maker
shall be personally liable for, any losses, damages, costs and expenses incurred
by Holder as a result of (i) any material misstatement of fact (A) by Maker or
any person or entity constituting Maker to induce Holder to advance the
principal amount evidenced hereby or (B) contained in any Loan Document, (ii)
fraud committed by Maker or any person or entity constituting Maker, (iii)
-5-
<PAGE> 6
application of any insurance proceeds, condemnation awards, trust funds, or
Rents (as defined in the Security Deed) by Maker or Maker's agents or Maker's
authorized representatives in a manner which is not in accordance with the
provisions of the Security Deed, (iv) breach of any representation or warranty
contained in subsections 2.03C or D of the Security Deed, (v) default with
respect to any covenant contained in subsection 1.05F of the Security Deed, (vi)
any default with respect to Maker's obligations to pay real estate taxes
assessed against the Secured Property and to pay insurance premiums pursuant to
Section 1.03 of the Security Deed or (vii) any loss, damage, expense or
liability on the part of Holder (including, without limitation, reasonable
attorneys' fees actually incurred at the normal and customary hourly billing
rates of the attorneys actually performing services, and disbursements) arising
from, in respect of, as a consequence of or in connection with any of the
following: (A) the existence of any circumstance or the occurrence of any action
described in clause (i) of subsection 1.05F(1) of the Security Deed; (B) claims
asserted by any person or entity (including, without limitation, any
governmental agency or quasi-governmental authority, board, bureau, commission,
department, instrumentality or public body, court, or administrative tribunal)
in connection with or in any way arising out of the presence, storage, use,
disposal, generation, transportation, or treatment of any Hazardous Material (as
defined in the Security Deed) on, in or under the Secured Property; (C) the
violation or claimed violation of any Hazardous Materials Laws (as defined in
the Security Deed) in regard to the Secured Property, whether such violation or
claimed violation occurred prior to or after the date of this Note and
regardless of whether such violation occurred prior to or after the time that
Maker became owner of the Secured Property, but only to the extent such
violation or claimed violation relates to or arises or occurs prior to or during
ownership or operation of the Secured Property by Maker or as a result of the
acts or omissions of Maker, Maker's affiliates, Maker's agents, or authorized
representatives of Maker or Maker's affiliates; (D) the preparation of an
environmental audit on the Secured Property, whether conducted or authorized by
Maker, Holder or a third party or the implementation of any environmental
audit's recommendations; or (E) all agreements and indemnification obligations
of Maker under that certain Environmental Indemnity Agreement of even date
herewith in favor of Holder.
Whenever used, the words "Maker" and "Holder" shall be deemed to include
the respective heirs, successors, assigns and legal representatives of Maker and
Holder.
This Note is to be construed and enforced according to and governed by the
laws of the State of Georgia.
Maker agrees that where, by the terms of this Note, a day is named or a
time is fixed for the payment of any sum of money or the performance of any
agreement, the day and/or time stated enters into the consideration and is of
the essence of the whole contract.
(Signature Begins on Next Page)
-6-
<PAGE> 7
[SIGNATURE PAGE TO $79,700,000.00 PROMISSORY NOTE PAYABLE TO NEW YORK LIFE
INSURANCE COMPANY OR ORDER]
IN WITNESS WHEREOF, Maker has executed this Note as of the date first above
written.
MAKER:
OVERSEAS PARTNERS (AFC), INC.,
a Georgia corporation
By:/s/ Bruce M. Barone
---------------------------
Title:President & CEO
------------------------
Attest:/s/ Elise R. Kitchens
-----------------------
Title: Paralegal
------------------------
(Corporate Seal)
<PAGE> 1
EXHIBIT 10.uu
DEED TO SECURE DEBT, ASSIGNMENT OF LEASES AND RENTS
AND SECURITY AGREEMENT
OVERSEAS PARTNERS (AFC), INC.,
Borrower
with
NEW YORK LIFE INSURANCE COMPANY,
Lender
DATED: October 23 , 1996
PREMISES: Atlanta Financial Center, Fulton County, Georgia
RECORD AND RETURN TO:
Alston & Bird
1201 West Peachtree Street
Atlanta, Georgia 30309
Attn: Glenda Gail Bugg, Esq.
<PAGE> 2
UPON RECORDING RETURN TO:
Alston & Bird
One Atlantic Center
1201 West Peachtree Street
Atlanta, Georgia 30309-3424
Attention: Glenda Gail Bugg, Esq.
DEED TO SECURE DEBT, ASSIGNMENT OF LEASES AND RENTS
AND SECURITY AGREEMENT
DEED TO SECURE DEBT, ASSIGNMENT OF LEASES AND RENTS AND SECURITY
AGREEMENT (this "Instrument") made as of October 23, 1996 by OVERSEAS PARTNERS
(AFC), INC., a Georgia corporation, having an office at 115 Perimeter Center
Place, Suite 940, Atlanta, Georgia 30346 ("Borrower"), by and between NEW YORK
LIFE INSURANCE COMPANY, a New York mutual insurance company, having an office at
51 Madison Avenue, New York, New York 10010 ("Lender").
WITNESSETH:
WHEREAS, Borrower has executed and delivered to Lender that certain
Promissory Note (the "Note") dated the date hereof made by Borrower and payable
to Lender in the original principal amount of Seventy-Nine Million Seven Hundred
Thousand and no/100 Dollars ($79,700,000.00) lawful money of the United States,
the final payment of which, if not sooner paid, is due and payable on November
10, 2006, which Note is secured by this Instrument and the terms, covenants and
conditions of which Note are hereby incorporated herein and made a part hereof;
NOW, THEREFORE, WITNESSETH, that in consideration of the sum of One
Dollar ($1.00) this day paid and other good and lawful consideration, the
receipt and sufficiency of which are hereby acknowledged, Borrower hereby
grants, bargains, sells, assigns, releases, transfers, pledges, warrants,
conveys and sets over unto Lender, and grants to Lender a security interest in,
all of Borrower's right, title and interest in and to the property described in
the Granting Clauses below, and confirms that this Instrument constitutes a
valid first priority security title upon and security interest in, the property
described in the Granting Clauses below in order to secure the following
obligations (collectively, the "Indebtedness"): the full and prompt payment and
performance of all of the indebtedness, obligations, covenants, agreements and
liabilities of Borrower to Lender, together with all interest and other charges
thereon, whether direct or indirect, existing, future, contingent or otherwise,
due or to become due, under or arising out of or in connection with the Note,
this Instrument, the Assignment of Rents, Income and Cash
<PAGE> 3
Collateral dated the date hereof from Borrower, as assignor, to Lender, as
assignee (the "Assignment"), and any other instrument now or hereafter given to
evidence or secure or guaranty Borrower's obligations hereunder (the Note, this
Instrument, the Assignment and such other instruments are herein collectively
called the "Loan Documents"); any and all modifications, extensions and renewals
of any of the foregoing; and any and all expenses and costs of collection or
enforcement, including, without limitation, reasonable attorneys' fees actually
incurred at the normal and customary hourly billing rates of the attorneys
actually performing services and expenses incurred by Lender in the collection
or enforcement of any of the foregoing, or in the exercise of any of the rights
or remedies under the Loan Documents or applicable law.
GRANTING CLAUSE ONE
All that tract or parcel of land more particularly described in Exhibit
A attached hereto and made a part hereof (the "Land").
GRANTING CLAUSE TWO
TOGETHER WITH, any and all buildings and improvements now or hereafter
located or erected on the Land, including, without limitation, any and all
machinery, apparatus, equipment and fixtures now or hereafter attached to,
and/or used or procured for use in connection with the operation and/or
maintenance of any building, structure or other improvement (including, without
limitation, all refrigerators, shades, awnings, venetian blinds, screens, screen
doors, storm doors and windows, stoves and ranges, curtain fixtures, partitians,
attached floor coverings and fixtures, apparatus, equipment or articles used to
supply sprinkler protection and waste removal, laundry equipment, furniture,
furnishings, appliances, office equipment, elevators, escalators, tanks,
dynamos, motors, generators, switchboards, communications equipment, electrical
equipment, television and radio systems, heating, plumbing, lifting and
ventilating apparatus, air-cooling and air conditioning apparatus, gas and
electric fixtures, fittings and machinery and all other equipment of every kind
and description, but excluding trade fixtures and personal property of tenants
under Leases (as hereinafter defined) which do not become the property of
Borrower upon expiration or termination of the term of such Leases), and all
renewals and replacements thereof and articles in substitution therefor used or
procured for use in the operation of any and all such buildings, structures and
improvements, provided, in all cases, that, whether or not any of the foregoing
are attached to said buildings, structures and improvements buildings,
structures or other improvements in any manner, all such items shall be deemed
to be fixtures, part of the real estate and security for the Indebtedness
(collectively, the "Improvements", and the Land and Improvements are herein
collectively called the "Premises"). To the extent any of the Improvements are
not deemed real estate under the laws of the State of Georgia they shall be
deemed personal property ("Personal Property") and this Instrument is and shall
be deemed to be a Security Agreement for the purposes of creating hereby a
security interest under the Uniform Commercial Code as adopted in the State of
Georgia in Lender as Secured Party in the Personal Property as hereinafter
provided.
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<PAGE> 4
GRANTING CLAUSE THREE
TOGETHER WITH, all easements, rights-of-way, strips and gores of land.
streets, ways, alleys, passages, sewer rights, waters, water courses, water
rights and powers, and all estates, rights, titles, interests, privileges.
liberties, tenements, hereditaments, air rights, development rights and credits
and appurtenances of any nature whatsoever, in any way belonging, relating or
pertaining to, or above or below the Premises.
GRANTING CLAUSE FOUR
TOGETHER WITH, all right, title and interest of Borrower, now owned or
hereafter acquired, in and to any land lying within the right-of-way of any
street, opened or proposed, adjoining the Premises, and any and all sidewalks,
alleys and strips and gores of land adjacent to or used in connection with the
Premises.
GRANTING CLAUSE FIVE
TOGETHER WITH, all right, title and interest of Borrower in and to all
options to purchase or lease the Premises or any portion thereof or interest
therein, and any greater estate in the Premises owned or hereafter acquired by
Borrower.
GRANTING CLAUSE SIX
TOGETHER WITH, all accounts receivable, insurance policies, licences,
franchises, permits, service contracts, management agreements, trade names
(including without limitation all right, title and interest of Borrower in the
name "Atlanta Financial Center"), trademarks, servicemarks, logos, general
intangilbes, contract rights, interests, estates and othe claims, both in law
and in equity, which Borrower now has or may hereafter acquire the Premises
GRANTING CLAUSE SEVEN
TOGETHER WITH, all the estate, interest, right, title and other claim
or demand which Borrower now has or may hereafter acquire in any and all awards
or payments made for the taking by eminent domain, or by any proceeding or
purchase in lieu thereof, of the whole or any part of the Premises, including,
without limitation, any awards resulting from a change or grade of streets and
awards for severance damages together, in all cases, with any interest thereon.
GRANTING CLAUSE EIGHT
TOGETHER WITH, all proceeds of and any unearned premiums on any
insurance policies covering the Premises, including, without limitation, the
right to receive and apply
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<PAGE> 5
the proceeds of any insurance or judgments, or settlements made in lieu thereof,
for damage to the Premises.
GRANTING CLAUSE NINE
TOGETHER WITH, all the estate, interest, right, title and other claim
or demand which Borrower now has or may hereafter acquire against anyone with
respect to any damage to all or any part of the Premises, including, without
limitation, damage arising or resulting from any defect in or with respect to
the design or construction of all or any part of the Improvements.
GRANTING CLAUSE TEN
TOGETHER WITH, all deposits or other security or advance payments,
including rental payments, made by or on behalf of Borrower to others in
connection with the ownership or operation of all or any part of the Premises
including, without limitation, any such deposits or payments made with respect
to (i) insurance policies, (ii) utility service, (iii) cleaning, maintenance,
repair or similar services, (iv) refuse removal or sewer service, (v) rental of
equipment, if any, used by or on behalf of Borrower, and (vi) parking or similar
services or rights.
GRANTING CLAUSE ELEVEN
TOGETHER WITH all remainders, reversions, leasehold estate, other
estate, right, title, interest and other claim or demand of Borrower in and to
all leases or subleases covering the Premises or any portion thereof now or
hereafter existing or entered into, and all right, title and interest of
Borrower thereunder, including, without limitation, all cash or security
deposits, advance rentals and deposits or payments of similar nature.
The foregoing Premises, Personal Property and rights therein, hereinabove
described or mentioned are hereinafter collectively referred to as the "Secured
Property".
TO HAVE AND TO HOLD all the Secured Property to the use, benefit and
behoof of Lender, forever, in FEE SIMPLE.
Borrower warrants that Borrower has good title to the Secured Property,
and is lawfully seized and possessed of the Secured Property and every part
thereof, and has the right to convey same; that the Secured Property is
unencumbered except as described in Section 2.01; and that Borrower will forever
warrant and defend the title to the Secured Property unto Lender against the
claims of all persons whomsoever, subject to the matters described in Section
2.01.
This instrument is a deed passing legal title pursuant to the laws of
the State of Georgia governing deeds to secure debt, and is also a security
agreement granting a present and continuing security interest in and security
title to the Personal Property and
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<PAGE> 6
fixtures, and is not a mortgage. This Instrument is made and intended to secure
the payment of the indebtedness evidenced by the Note, in accordance with the
terms thereof, advances by Lender or any transferee of Lender made to pay taxes
on the Secured Property, to pay premiums on insurance on the Secured Property,
to repair, maintain or preserve the Secured Property, or to complete
improvements on the Secured Property (whether or not Borrower is at that time
the owner of the Secured Property); any and all other Indebtedness now owing or
which may hereafter be owing by Borrower to Lender, however incurred, direct or
indirect; and any and all renewals, substitutions, modifications and extensions
of the Note or any other Indebtedness secured hereby, either in whole or in
Should the Indebtedness be paid according to the tenor and effect
thereof when the same shall become due and payable. and should Borrower perform
ail covenants contained herein in a timely manner, then this Instrument shall be
canceled and surrendered.
ARTICLE I
COVENANTS AND AGREEMENTS
Borrower hereby covenants and agrees as follows:
1.01 Payment of Indebtedness. Borrower shall pay when due and shall
perform the Indebtedness, as provided in the Loan Documents.
1.02 Payment of Taxes, Assessments, Etc.
A. Impositions. Borrower shall pay when due and payable,
before any fine, penalty, interest or cost for the non-payment thereof may be
added thereto, and without any right of offset or credit against any interest or
other amounts payable to Lender under this Instrument or on the Note, all taxes,
assessments, water and sewer rents, rates and charges, transit taxes, county
taxes, charges for public utilities, excises, levies, vault and all other
license and permit fees and other governmental charges, general and special,
ordinary and extraordinary, unforeseen and foreseen, of any kind and nature
whatsoever (including penalties, interest, costs and charges accrued or
accumulated thereon) which at any time prior to or during the term of this
Instrument may be assessed, levied, confirmed, imposed upon or become due and
payable out of or in respect to, or become a lien on, the Secured Property or
any part thereof or any appurtenance thereto, as the case may be (all such
taxes, assessments, water and sewer rents, rates and charges, transit taxes,
county taxes, charges for public utilities, excises, levies, vault and all other
license and permit fees and other governmental charges including all interest,
penalties, costs and charges accrued or accumulated thereof, are herein
collectively called as "Impositions", and individually, an "Imposition").
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<PAGE> 7
B. Installments. Notwithstanding anything to the contrary
contained in subsection A above, if by law any Impositions may at the option of
the taxpayer be paid in installments (whether or not interest shall accrue on
the unpaid balance of such Impositions), Borrower may exercise the option to pay
the same (and any accrued interest on the unpaid balance of such Impositions) in
installments and, in such event, shall pay such installments as the same
respectively become due and before any fine, penalty, further interest or cost
may be added thereto.
C. Receipts. Borrower, upon request of lender, will furnish to
Lender within five (5) days before the date when any Imposition would become
delinquent, official receipts of the appropriate taxing authority, or other
evidence reasonably satisfactory to Lender evidencing the payment thereof.
D. Evidence of Payment. The certificate, advice or bill issued
by the appropriate official (designated by law either to make or issue the same
or to receive payment of any Imposition) of non-payment of an Imposition shall
be prima facie evidence that such imposition is due and unpaid at the time of
the making or issuance of such certificate, advice or bill. Borrower agrees to
pay Lender, on demand, all reasonable charges, costs and expenses of every kind
incurred by Lender in connection with obtaining evidence satisfactory to Lender
that the payment of all Impositions is current and that there is no Imposition
due and owing or which has become or given rise to a lien on the Secured
Property or any part thereof or any appurtenance thereto.
E. Payment by Lender. If Borrower shall fail to pay any
Imposition in accordance with the provisions of this Section 1.02, Lender may,
at its option (but shall be under no obligation to do so), pay such Imposition
and Borrower will repay to Lender on demand any amount so paid by Lender, with
interest thereon at the rate of five percent (5%) per annum Greater than the
interest rate set forth in the Note (the "Increased Rate") to the date of
repayment and ail such amounts shall be secured by this Instrument. In no event
shall the Increased Rate be greater than the highest interest rate permissible
by law.
F. Change in Law. In the event of the passage after the date
of this Instrument of any law of the State of Georgia deducting the Indebtedness
from the value of the Secured Property or any part thereof for the purpose or
with the result of taxes being assessed against the Indebtedness which are
payable by the holder thereof or resulting in any lien theron, or changing in
any way the laws now in force for the taration of this Instrument or the
Indebtedness for state or local purposes with the result that new taxes (other
than income taxes), rather than new tax rates, are imposed on the holder of this
Instrument or the Indebtedness as a result of such Instrument or Indebtedness,
or the manner of the operation of any such taxes so as to effect any such
result, then, and in such event, Borrower shall bear and pay the full amount of
such taxes, provided that if for any reason payment by Borrower of any such new
or additional taxes would be unlawful or if the payment thereof would constitute
usury or render the loan or Indebtedness wholly or partially usurious under any
of the terms or provisions of the Note, this Instrument or otherwise, Lender
may, at its option, declare the whole sum secured by this Instrument
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<PAGE> 8
with interest thereon to be immediately due and payable without a prepayment
premium, or Lender may, at its option, pay that amount or portion of such taxes
as renders the loan or Indebtedness unlawful or usurious, in which event
Borrower shall concurrently therewith pay the remaining lawful and non-usurious
portion or balance of said taxes.
G. Reserved.
H. Reserved.
I. Joint Assessment. Borrower covenants and agrees, to the
extent permitted by applicable law, not to suffer permit or initiate the joint
assessment of the Premises and Personal Property, or any other procedure whereby
the lien of the personal property taxes shall be assessed or levied or charged
to the Secured Property together with real property taxes.
J. Tax Service fee. Borrower covenants and agrees to pay to
Lender on demand all reasonable charges, costs and expenses of every kind
including, without limitation, a tax service search fee or charge, incurred by
Lender at any time or times during the term of this Instrument in connection
with obtaining evidence satisfactory to Lender that the payment of any and all
real estate, ad valorem, and other taxes and/or assessments is current and that
there are no such taxes or assessments due or owing which have become or given
rise to a lien on the Premises or any part thereof. The tax service fee paid by
Borrower at the closing of the loan is intended as a one-time charge for such
tax service search fee for the term of the loan secured hereby; provided that if
the tax service provider to whom such fee was paid is no longer capable of
providing such tax service, Borrower will pay a reasonable and customary tax
service search charge to a new tax search firm selected by Lender.
1.03 Insurance.
A. Extended Coverage. Borrower, at its sole cost and expense,
shall keep the Personal Property and the Improvements insured during the term of
this Instrument against loss or damage by fire and against loss or damage by
other risks now embraced by "All Risk Replacement Cost Coverage," so called,
with an agreed amount endorsement, in amounts, and from carriers acceptable to
Lender which have a minimum A.M. rating of B+, or comparable, and otherwise in
forms and substance satisfactory to Lender, in the exercise of its sole
discretion. It is stipulated that as of the date of this Instrument, and without
limiting Lender's right to impose different requirements from time to time, fire
and extended coverage shall be required in the amount equal to the greater of
(i) 100% of the full replacement cost of the personal property, fixtures and
improvements appurtenant to the Premises including work performed for tenants,
without deduction for depreciation, (ii) the amount required to prevent any
insured from becoming a co-insurer under the terms of such insurance or
(iii)$79,700,000.00.
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<PAGE> 9
B. Additional Coverage. Borrower, at its sole cost and expense, shall
also maintain:
(1) Personal injury and property damage liability insurance
against claims for bodily injury, death or property damage, occurring on, in or
about the Secured Property or in or about the adjoining streets, sidewalks and
passageways; such insurance to afford protection, during the term of this
Instrument, in amounts and in form and substance satisfactory to Lender;
(2) Rent or business interruption insurance in an amount not
less than the greater of (a) $14,030,000.00, or (b) one year's aggregate rentals
(including, without limitation, minimum rentals, escalation charges, percentage
rents, based on sales projections acceptable to Lender, and other additional
rentals, and any other amounts payable by tenants or other occupants under
Leases or otherwise) payable by all tenants and other occupants at the Premises,
which amount shall be increased from time to time upon the leasing of space at
the Premises or upon the increase in aggregate rentals (including the other
items referred to above);
(3) War risk insurance upon the building and other
Improvements as and when such insurance is obtainable from the United States of
America or any agency or instrumentality thereof for the maximum amount of
insurance obtainable not to exceed the outstanding principal amount of the Note;
(4) Such other insurance, including, without limitation, all
risk in such amounts and in form and substance as may from time to time be
required by Lender against other insurable hazards, including, but not limited
to, malicious mischief, vandalism, windstorm, earthquake, nuclear reaction or
radioactive contamination, which at the time are commonly insured against and
generally available in the case of premises similarly situated, due regard being
or to be given to the height and type of Improvement, its location,
construction, use and occupancy;
(5) If the Improvements are located in a flood hazard area,
flood insurance on the Improvements in an amount equal to the lesser of "full
replacement cost" thereof or the maximum amount of insurance obtainable; and
(6) Insurance against loss or damage from (a) leakage of
sprinkler systems and (b) explosion of steam boilers, air conditioning
equipment, pressure vessels or similar apparatus now or hereafter installed in
or on the Premises in such amounts as Lender shall from time to time require.
Borrower shall also pay all premiums and other charges required to maintain
Lender's title insurance policy insuring the lien of this Instrument in an
amount equal to the Indebtedness.
C. Separate Insurance. Borrower shall not carry separate insurance,
concurrent in kind or form, and contributing, in the event of loss, with any
insurance required hereunder. Borrower may, however, effect for its own account
any insurance not
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<PAGE> 10
required under the provisions of this Instrument but any such insurance effected
by Borrower on the Secured Property whether or not required under this Section
1.03 shall be for the mutual benefit of Borrower and Lender, as their respective
interests may appear, and shall be subject to all other provisions of this
Section 1.03.
D. Insurers: Policies. All insurance provided for in this Section 1.03
shall be effected under valid and enforceable policies issued by financially
responsible insurers authorized to do business in the State of Georgia, which
are approved in writing by Lender and its authorized representative. All such
policies shall be deposited with and held by Lender or its authorized
representative or copies of the policies certified as true and correct by the
issuer shall be delivered in lieu of originals. All casualty insurance policies
and rent insurance policies shall be payable to Lender and its authorized
representative pursuant to a standard non-contributory first mortgage
endorsement in favor of Lender, and such policies shall contain a waiver of
subrogation endorsement, and shall name Lender as loss payee or mortgagee (and
additional insured, as appropriate) all in form and content satisfactory to
Lender and its authorized representative. All original policies shall contain a
provision that such policies will not be canceled or materially amended, which
term shall include any reduction in the scope or limits of coverage, without at
least thirty (30) days' prior written notice to Lender or its authorized
representative. Not less than thirty (30) days prior to the expiration dates of
the policies theretofore furnished pursuant to this Instrument, originals or
copies certified as true and correct from the issuer of the policies bearing
notations evidencing the payment of premiums or accompanied by other evidence
satisfactory to Lender and its authorized representative of such payment, shall
be delivered by Borrower to Lender or its authorized representative. In the
event of a change in ownership of the Secured Property immediate notice thereof
shall be delivered to all insurers by Borrower.
E. Lender's Right to Provide Coverage. In the event Borrower fails to
provide, maintain, keep in force or deliver and furnish to Lender or its
authorized representative the original, or certified copies, of policies of
insurance required by this Section 1.03, Lender or its authorized representative
may, at its sole option, procure such insurance and Borrower will pay all
premiums thereon promptly upon demand by Lender or its authorized representative
with interest thereon at the Increased Rate to the date of repayment and all
such amounts shall be secured by this Instrument.
F. Damage or Destruction. After the happening of any casualty to the
Secured Property or any part thereof, Borrower shall give prompt written notice
thereof to Lender or its authorized representative and the following shall
apply:
(1) In the event of any damage or destruction of all or any
part of the Secured Property, all proceeds of insurance shall be payable to
Lender, and Borrower hereby authorizes and directs any affected insurance
company to make payment of such proceeds directly to Lender. Insurance proceeds
held by Lender may be commingled with other funds in Lender's or its authorized
representative's possession, shall constitute additional security for the
Indebtedness and Borrower shall not be entitled
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<PAGE> 11
to the payment of interest thereon; provided, however, that in the event such
insurance proceeds exceed $100,000.00 and such funds will be used for
restoration or repair as provided below, such funds shall constitute additional
security for the Indebtedness, but at Borrower's written request, such proceeds
shall be deposited into an interest-bearing account at a bank or other financial
institution satisfactory to Lender, and held in accordance with a written escrow
agreement satisfactory to Lender and its legal counsel. Interest on such
escrowed funds shall be added to, become a part of, and be disbursed as part of
such insurance proceeds. Until said escrow agreement is executed and delivered.
such monthly deposits shall not be held in an interest bearing account and shall
be held by Lender as provided above. Any and all escrow fees and other costs
associated with establishing such third-party escrow shall be borne by Borrower.
Lender by itself or through its authorized representative is hereby authorized
and empowered by Borrower to participate in any settlement, adjustment or
compromise of any claims for loss, damage or destruction under any policy or
policies of insurance. Borrower may not settle, adjust or compromise any claim
without Lender's consent, not to be unreasonably withheld; provided, however,
that Borrower may, without Lender's consent, settle, adjust or compromise any
claim if the resulting settlement, adjustment or compromise is in amount
sufficient to satisfy the Indebtedness in full.
(2) In the event of any such damage or destruction, subject to
subsection 1.03G, Lender shall have the option in its sole and absolute
discretion and without regard to the adequacy of its security hereunder, of
applying all or part of the insurance proceeds (a) to the Indebtedness, whether
or not then due, in the inverse order of maturity, or (b) to the repair or
restoration of the Secured Property, or (c) to cure any then current default
under any of the Loan Documents, or (d) to reimburse the Lender and its
authorized representative for its reasonable costs and expenses in connection
with the recovery of such insurance proceeds, or (e) any combination of the
foregoing.
(3) Nothing herein contained shall be deemed to excuse
Borrower from repairing or maintaining the Secured Property as provided in
Section 1.05 hereof or restoring all damage or destruction to the Secured
Property, regardless of whether there are insurance proceeds available or
whether such proceeds are sufficient in amount, and the application or release
by Lender of any insurance proceeds shall not cure or waive any Event of Default
(as hereinafter defined) or notice of default under this Instrument or
invalidate any act done pursuant to such notice.
G. Borrower's Use of Proceeds
(1) Notwithstanding any provision herein to the contrary, in
the event of any destruction to the Premises by fire or other casualty, the
insurance proceeds shall be made available to Borrower for repair and
restoration of the property so damaged or destroyed, after deducting and payment
to Lender of Lender's reasonable costs of collection and disbursement of such
proceeds, subject to each and all of the following conditions:
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<PAGE> 12
(a) that Borrower is not then in default under any of
the terms, covenants and conditions of the Note, this Instrument, any other
agreement securing repayment of the indebtedness evidenced by the Note, and at
all times while restoration work progresses no such default shall occur;
(b) that, except as provided in (h) below, Lender
shall be satisfied that by the expenditure of such proceeds the improvements
will be fully restored within a reasonable period of time to their value
immediately preceding the loss or damage, free and clear of all liens, except
the lien and security title of this Instrument, a lien for property taxes and
such other liens as are specifically approved by Lender in writing or otherwise
permitted under the terms of this Instrument;
(c) that in the event such proceeds shall be
insufficient to restore or rebuild the improvements, Borrower shall deposit
promptly with Lender funds which, together with such proceeds, shall be
sufficient in Lender's reasonable judgment to restore and rebuild the Secured
Property;
(d) that Borrower shall use it best efforts to obtain
a waiver of the right of subrogation from any insurer under such policies of
insurance who, at that time, claims that no liability exists as to Borrower or
the then owner or the assured under such policies;
(e) that the excess of the proceeds above the amount
necessary to complete such restoration and compensate Borrower for all other
losses shall be applied at Lender's option on account of the indebtedness or
obligation hereby secured (in inverse order of maturity and without payment of
any prepayment premium);
(f) Borrower shall have delivered to Lender and
Lender shall have reviewed and approved in writing the plans and specifications
for the restoration work signed by Borrower and describing the nature and type
of expenses and amounts thereof estimated by Borrower for said restoration work,
including, but not limited to, the cost of material and supplies, architect and
designer fees, general contractor's fees and the anticipated monthly
disbursement schedule, and Lender shall have given to Borrower written approval
of such budget and the cost breakdown (if Borrower determines that its actual
expenses do or will differ from its estimated budget, it will so advise Lender
promptly) which approval will not be unreasonably withheld, delayed or
conditioned;
(g) Borrower has delivered to Lender evidence
reasonably satisfactory to Lender, and Lender has determined in its sole
reasonable discretion, that sufficient leases of the property existing at the
time of the loss or damage will remain in full force and effect through the
projected period of repair and restoration, without abatement of rent during
such period (except for rent during the period of repair and restoration for
which rental loss insurance proceeds are available), which, together with rental
loss insurance proceeds available due to the casualty, produce rental income to
Borrower of at least 110% of the debt service on the Indebtedness for such
period; and
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<PAGE> 13
(h) in Lender's reasonable judgment, such restoration
work can be completed prior to the maturity of the Note.
In the event any of the conditions described and proceeds shall be disposed of
as otherwise provided in this subparagraph G. Under no circumstances shall
Lender become obligated to take any action to restore the premises.
H. Transfer of Interest in Policies. In the event of foreclosure of
this Instrument or other transfer of title or assignment of the Secured property
in extinguishment, in whole or in part, of the Indebtedness, all right, title
and interest of Borrower in and to all policies of insurance required by this
Section 1.03 shall inure to the benefit of and pass to the successor in interest
to Borrower or the purchaser or grantee of the Secured Property. If any claim
under any insurance policy shall be paid after the extinguishment of the
Indebtedness, and if such foreclosure of this Instrument, or other transfer of
title to or assignment of the Secured Property, shall have resulted in
extinguishing the indebtedness for an amount less than the total of the amount
of the unpaid Indebtedness, with interest thereon at the Increased Rate, plus
counsel fees, costs and other disbursements incurred by Lender at the time of
the extinguishment of the Indebtedness, then the portion of the payment in
satisfaction of the claim which is equal to the difference between the total
amount above referred to and the amount theretofore paid to Lender shall belong
to and be the property of Lender and shall be paid to said Lender, and Borrower
hereby assigns, transfers and sets over to Lender all of Borrower's right, title
and interest in and to said sum. The balance, if any, shall be paid to Borrower.
Notwithstanding the above, Borrower shall retain an interest in the insurance
policies above-described during any redemption period.
1.04 Escrow Deposits. To further secure the payment of the Impositions
and the premiums for the insurance required by this Instrument, the Borrower
will deposit with Lender, or its designee, on the due date of each monthly
installment of principal and interest under the Note, a sum which shall be equal
to one-twelfth (1/12) of the annual total of the Impositions and such insurance
premiums required to pay the next installment of Impositions or insurance
premiums, as estimated by Lender or its authorized representative, one month
prior to the date when such Impositions and insurance premiums shall become due
and payable. Such deposits shall be held by Lender, or its designee, without
obligation for the payment of interest thereon to Borrower, free of any liens or
claims on the part of creditors of Borrower and as a part of the security of
Lender, and shall be used by Lender, or its designee, to pay current Impositions
and insurance premiums as the same shall become payable. Said deposits shall not
be, nor be deemed to be, trust funds but may be commingled with general funds of
Lender, or its designee. If at any time and for any reason Lender determines
that said deposits are insufficient to pay the Impositions and insurance
premiums in full as they become payable, Borrower will deposit with Lender, or
its designee, within ten (10) days after demand therefor, such additional sum or
sums as may be required in order for Lender, or its designee, to pay such
Impositions and insurance premiums in fuel. It shall be the responsibility of
Borrower to
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furnish bills to Lender or its authorized representatives in sufficient time
for Lender to pay the Impositions and insurance premiums before any penalty
attaches and before the policies lapse. Upon any Event of Default in the
provisions of this Instrument or the Note, Lender may, at its option, in its
sole and absolute discretion and without regard to the adequacy of its security
hereunder, apply any such deposits to the payment of the Indebtedness in such
manner as it may elect. Transfer of legal title to the Secured Property shall
automatically transfer to the new owner the beneficial interest in all sums
deposited under the provisions of this Section 1.04.
1.05 Care and Use of Premises
A. Maintenance and Repairs. Borrower, at its sole cost
and expense, will take good care of the Secured Property and the sidewalks and
curbs adjoining the Secured Property and will keep the same in good order and
condition, and make all necessary repairs thereto, interior and exterior,
structural and nonstructural, ordinary and extraordinary, unforeseen and
foreseen, and will not commit or suffer to be committed any waste of the
Secured Property and will not do or suffer to be done anything which will
increase the risk of fire or other hazard to the Secured Property or any part
thereof.
B. Standard of Repairs. The necessity for and adequacy
of repairs to the Improvements pursuant to subsection 1.05A shall be measured
by the standard which is appropriate for a first-class, provided that Borrower
shall in any event make all repairs necessary to avoid any structural damage to
the Improvements in a proper condition for their intended use. When used in
this Section 1.05, the terms "repair" and "repairs" shall include all necessary
renewals and replacements. All repairs made by Borrower shall be made with
first-class materials and in a good, substantial and workmanlike manner and
shall be equal or better in quality and class to the original work.
C. Notice to Borrower. Borrower will notify Lender or
its authorized representative promptly of any damage to the Secured Property,
the cost of which to repair is in excess of $100,000.00.
D. Removal of Equipment. Borrower shall have the right,
at any time and from time to time, to remove and dispose of equipment which may
have become obsolete or unfit for use or which in no longer useful in the
operation of the Secured Property. Borrower will promptly replace any such
equipment so disposed of or removed with other equipment of a value and
serviceability equal to or greater than the original value and serviceability
of the equipment so disposed of or removed, free of superior title, liens and
claims; except that, if by reasons of technological or other developments in
the operation and maintenance of buildings of the general character of the
Improvements, no replacement of the building equipment so removed or disposed
of is necessary or desirable in the proper operation or maintenance of said
Improvements, Borrower shall not be
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<PAGE> 15
required to replace same. All such replacements or additional equipment shall be
covered by the security interest herein granted.
E. Compliance With Laws and Insurance. Borrower shall promptly comply
with all present and future laws, ordinances, orders, rules, regulations and
requirements of all federal, state and municipal governments, courts,
departments, commissions, boards and officers, any national or local Board of
Fire Underwriters, including without limitation, all zoning, building code,
environmental protection and equal employment opportunity statutes, ordinances,
regulations, orders and restrictions, foreseen or unforeseen, ordinary as well
as extraordinary, which may be applicable to the Secured Property and the
sidewalks and curbs adjoining the Secured Property or to the use or manner of
use of the Secured Property whether or not such law, ordinance, order, rule,
regulation or requirement shall necessitate structural changes or improvements.
Borrower shall not bring or keep any article upon any of the Secured Property or
cause or permit any condition to exist thereon which would be prohibited by or
could invalidate any insurance coverage maintained, or required hereunder to be
maintained, by Borrower on or with respect to any part of the Secured Property,
and further shall do all other acts which from the character or use of the
Secured Property may be necessary to protect the security hereof, the specific
enumerations herein not excluding the general. Borrower covenants and agrees to
take all reasonable steps necessary to cause the Improvements to comply with the
Americans with Disabilities Act of 1990, as amended (42 U.S.C. section 12101, et
seq.) and regulations promulgated thereunder; Borrower shall commence such
actions within a year from the date hereof and shall diligently pursue the same,
except that as to tenant spaces occupied by tenants, Borrower shall bring such
spaces into compliance after vacation by the tenant.
F. Hazardous Materials.
(1) For purposes herein, the term "Hazardous Material" means
and includes any flammable explosives, radioactive materials, asbestos,
underground fuel tanks, hazardous, toxic or dangerous waste, substance or
related material, including, but not limited to, substances defined as such in
(or for purposes of) or which may give rise to liability under (a) the
Comprehensive Environmental Response, Compensation, and Liability Act, as
amended, 42 U.S.C. Section 9601, et seq., (b) the Hazardous Materials
Transportation Act, 49 U.S.C. Section 1801, et seq.; (c) the Resource
Conservation and Recovery Act, as amended, 42 U.S.C. Section 6901, et seq.; (d)
the Clean Water Act of 1977, 33 U.S.C. Sections 1251, et seq.; (e) the Federal
Safe Drinking Water Act, 42 U.S.C. Sections 300(f), et seq., (f) the Federal
Toxic Substances Control Act, 15 U.S.C. Sections 2601, et seq., the Federal
Clean Air Act, 42. U.S.C. Section 7401 et sea.; the Federal Insecticide,
Fungicide and Rodenticide Act, 7 U.S.C. Section 136, et seq.; the Georgia Air
Quality Act; the Georgia Underground Storage Tank Act; the Georgia Water Quality
Control Act; the Georgia Comprehensive Solid Waste Management Act; the Georgia
Oil or Hazardous Material Spill or Release Act; the Georgia Hazardous Waste
Management Act; the Georgia Hazardous Site Response Act and all regulations
issued pursuant thereto and any so-called "Superfund" or "Superlien" law, or any
other federal,
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<PAGE> 16
state or local statute, law, ordinance, code, rule, regulation, order or decree
regulating, relating to, or imposing liability or standards of conduct
concerning, any hazardous, toxic or dangerous waste, substance or material, as
now or at any time hereafter in effect ("Hazardous Materials Laws").
(2) Borrower hereby indemnifies and agrees to defend, protect
and hold Lender, its authorized representatives, its directors, officers,
employees or agents, and any successor or successors to Lender's interest in the
chain of title to the Secured Property, harmless from and against any and all
losses, liabilities, fines, charges, damages, injuries, penalties, response
costs, costs, expenses and claims of any and every kind whatsoever paid,
incurred or suffered by, or asserted against, Lender or its authorized
representative, including, without limitation:
(a) all foreseeable consequential damages;
(b) the costs of any required or necessary repair,
cleanup or detoxification of the Secured Property, and the preparation and
implementation of any closure, remedial or other required plans; and
(c) all reasonable costs and expenses incurred by
Lender and its authorized representative in connection with clauses (a) and (b)
above, including, but not limited to, attorneys' fees and expenses,
(i) for, with respect to, or as a direct or
indirect result of (A) the presence on or under, or the escape, seepage,
leakage, spillage, discharge, emission, discharge or release from, the Secured
Property or any other property legally or beneficially owned (or any interest or
estate which is owned) by Borrower of any Hazardous Material (including, without
limitation, any losses, liabilities, damages, injuries, costs, expenses or
claims asserted or arising under Hazardous Materials Laws to the extent such
Hazardous Materials were present, escaped, seeped, leaked, spilled, discharged,
emitted, or released during or prior to Borrower's ownership of the Secured
Property, but regardless of whether or not caused by, or within the control of,
Borrower or any predecessor in title or any employees, agents, contractors or
subcontractors of Borrower, or any third persons at any time, occupying or
present on or otherwise affecting the Secured Property; or (B) the transport,
treatment, storage or disposal of Hazardous Materials to or at any location by
Borrower or by any other party directly or indirectly affiliated with it, or at
the direction or on behalf of any of them; or
(ii) arising out of or related to any breach
of Borrower's obligations under this subsection 1.05F or any inaccuracy,
incompleteness or misrepresentation under subsections 2.03C and D below,
irrespective of whether any of such actions or circumstances were or will be in
compliance with applicable laws, regulations, codes or ordinances.
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<PAGE> 17
Such indemnification and hold harmless agreement shall survive the repayment of
all sums due under the Note and the release or reconveyance of or foreclosure
under this Instrument.
(3) Borrower shall keep and maintain the Secured
Property in compliance with, and shall not cause or permit the Secured Property
to be in violation of any federal, state or local laws, ordinances or
regulations relating to industrial hygiene or to the environmental conditions
on, under or about the Secured Property including, but not limited to, soil and
ground water conditions. Borrower shall not use, generate, manufacture, store,
dispose of or permit to exist in, on, under or about the Secured Property any
Hazardous Material except in such quantities or concentrations as would not
constitute a violation of any Hazardous Materials Laws and which would not
otherwise create an environmentally unsafe or unsound condition. Borrower hereby
agrees at all times to comply fully and in a timely manner with, and to cause
all of its employees, agents, contractors and subcontractors and any other
persons occupying or present on the Secured Property to so comply with all
Hazardous Materials Laws.
(4) Borrower represents and warrants that, to the
best of its knowledge, (a) no enforcement, cleanup, removal or other
governmental or regulatory actions have, at any time, been instituted,
contemplated or threatened against the Secured Property, or against Borrower
with respect to the Secured Property, pursuant to any Hazardous Materials Laws;
(b) no violation or non-compliance with Hazardous Materials Laws has occurred
with respect to the Secured Property at any time; and (c) no claims have, at any
time, been made or threatened by any third party against the Secured Property
or against Borrower with respect to the Secured Property, relating to damage,
contribution, cost recovery, compensation, loss or injury resulting from any
Hazardous Materials (the matters set forth in clauses (a), (b) and (c) above are
hereinafter referred to as "Hazardous Materials Claims"). Borrower shall
promptly advise Lender or its authorized representative in writing if any
Hazardous Materials Claims asserted, or if Borrower obtains knowledge of any
discharge, release, or disposal of any Hazardous Materials in, on, under or
about the Property.
(5) Without Lender's prior written consent, Borrower
shall not take any remedial action in response to the presence of any Hazardous
Materials on, under or about the Secured Property, nor enter into any settlement
agreement, consent decree, or other compromise in respect to any Hazardous
Materials Claims, which remedial action, settlement, consent or compromise
might, in Lender's reasonable judgment, impair the value of Lender's security
hereunder; provided, however, that Lender's prior consent shall not be necessary
in the event that the presence of any Hazardous Material on, under, or about the
Secured Property either poses an immediate threat to the health, safety or
welfare of any individual or is of such a nature that an immediate remedial
response is necessary and it is not possible to obtain Lender's consent before
taking such action, provided that in such event Borrower shall notify Lender as
soon as practicable of any action so taken. Lender agrees not to withhold its
consent, where such consent is required hereunder, if either (i) a particular
remedial action is ordered by a court of competent
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<PAGE> 18
jurisdiction, or (ii) Borrower establishes to the reasonable satisfaction of
Lender that there is no reasonable alternative to such remedial action which
would result in less impairment of Lender's security hereunder.
(6) Lender or its authorized representative shall
have the right to join and participate in, as a party if it so elects, any legal
proceedings or actions initiated by any person or entity in connection with any
Hazardous Materials Claims and, in such case, to have its reasonable attorneys'
fees and costs actually incurred in connection therewith paid by Borrower.
G. Reserved.
H. Compliance With Instruments of Record. Borrower will promptly
perform and observe, or cause to be performed and observed, all of the terms,
covenants and conditions of all instruments of record affecting the Secured
Property, non-compliance with which may affect the priority of the lien of this
Instrument, or which may impose any duty or obligation upon Borrower or any
lessee or other occupant of the Secured Property or any part thereof, and
Borrower shall do or cause to be done ail things necessary to preserve intact
and unimpaired any and ail easements, appurtenances and other interests and
rights in favor of or constituting any portion of the Secured Property.
I. Alteration of Secured Property. Borrower will not demolish, remove,
construct, restore, add to or alter any Improvement or any extension thereof,
nor consent to or permit any such demolition, removal, construction,
restoration, addition or alteration without Lender's prior written consent,
which consent will not be unreasonably withheld, delayed or conditioned, except
for (1) tenant improvement work and tenant alterations provided for in any Lease
in effect on the date hereof and any other Lease approved by Lender in writing
or for which Lender's approval is not required or as to which Lender is deemed
to have given its approval under the provisions of Section 1.08)(E), but such
deemed approval shall be sufficient for purposes of this Section I.O5(I) ONLY if
the written request for approval of such Lease specifies that the request
includes a request for approval of alterations of the Secured Property not
otherwise permitted and describes the estimated cost thereof and attaches the
work letter or refers to the work letter attached to the lease, and (2)
ordinary, non-structural maintenance work, and (3) structural repairs and
restorations having a cost of less than $100,000.
J. Parking. Mortgagor will grant no parking rights in the Secured
Property other than those provided for in existing Leases, and Leases otherwise
approved by Lender or Leases otherwise permitted without Lender's consent,
except with Lender's or its authorized representative's prior written consent.
Subject to casualty and condemnation the Secured Property shall contain at all
times not less than 2,350 on-site parking spaces for standard-size American
automobiles, said parking spaces to be located upon the Land primarily within a
nine-level parking garage. If any part of the automobile parking areas included
within said Secured Property is taken by condemnation or said areas are
otherwise reduced, Borrower will provide parking facilities in kind, size and
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<PAGE> 19
location to comply with all Leases, and before making any contract therefor will
furnish to Lender or its authorized representative satisfactory assurance of
completion thereof free of liens and in conformity with all governmental zoning
ordinances and regulations.
K. Entry on Secured Property. Lender and its authorized representative
or their representatives are hereby authorized, subject to the rights of tenants
at the Secured Property, to enter upon and inspect the Secured Property at all
reasonable times and as often as Lender or its authorized representative deem
necessary or appropriate.
L. No Consent to Alterations or Repairs. Nothing contained in this
Instrument shall be deemed or construed in any way as constituting the consent
or request of Lender, express or implied by inference or otherwise to any
contractor, subcontractor, laborer or materialman for the performance of any
labor or the furnishing of any materials for any specific improvement,
alteration to or repair of the Secured Property or any part thereof.
M. Mechanics Liens. Borrower will discharge, pay, or bond, or cause to
be discharged, paid or bonded, from time to time when the same shall become due,
all lawful claims and demands of mechanics, materialmen, laborers and others
which, if unpaid, will result in, or permit the creation of a lien on the
Secured Property or any part thereof, or on the revenues, rents, issues, income
and profits arising therefrom, and Borrower will do or cause to be done
everything necessary so that the lien of this Instrument shall be fully
preserved, at the cost of Borrower without expense to Lender.
N. Use of Secured Property by Borrower. Borrower will use, or cause to
be used, the Secured Property principally and continuously as and for a
first-class office development with related commercial facilities, if any.
Borrower shall not use, or permit the use of the Secured Property or any part
thereof for any other principal use without the prior written consent of Lender.
0. Use of Secured Property by Public. Borrower shall not suffer or
permit the Secured Property, or any portion thereof, to be used by the public as
such, without restriction or in such manner as might impair Borrower's title to
the Secured Property or any portion thereof, or in such manner as might make
possible a claim or claims of adverse usage or adverse possession by the public,
or of implied dedication of the Secured Property or any portion thereof.
P. Management. Management of the Premises shall be satisfactory to
Lender (and shall be deemed satisfactory if same is in compliance with Section
1.08(D) hereof) and shall be performed by Borrower or a mamangement company
approved in writing by Lender and under a management contract satisfactory to
Lender (approval of such management company and/or management contract not to be
unreasonably withheld, delayed or conditioned by Lender), which management
contract shall be subject and subordinate to the rights and title of lender
under this Instrument.
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<PAGE> 20
1.06 Financial Information.
A. Audit. Borrower will keep and maintain complete and accurate books
and records of the earnings and expenses of the Secured Property and, without
expense to Lender, furnish to Lender or its authorized representative, within
one hundred twenty (120) days after the end of each fiscal year of Borrower, an
annual audit prepared and certified by an independent certified public
accountant reasonably satisfactory to Lender, in accordance with generally
accepted accounting principles relating to real estate consistently applied,
which shall include: (1) a statement of financial position and liabilities of
Borrower with respect to the Secured Property, (2) a statement of cash flows by
Borrower with respect to the Secured Property, (3) a detailed summary of
operations relating to the ownership and operation of the Secured Property,
including, without limitation, all rents and other income derived therefrom and
all expenses paid or incurred in connection therewith, and (4) such interim
statements of financial position and summaries of operations or loss statements
and income and expense reports as may be required by Lender.
B. Right to Inspect Books and Records. Lender or its representative
shall have the right to examine and make copies of such books and records and
all supporting vouchers and data at the Premises or at Borrower's principal
place of business at Borrower's expense (excluding the cost of travel, lodging
and meals); provided that Lender shall exercise such rights no more often than
one (1) time per calendar year.
1.07 Condemnation.
A. Lender's Right to Participate in Proceedings. If the Secured
Property, or any part thereof, shall be taken in condemnation proceedings or by
exercise of any right of eminent domain (collectively, "Condemnation
Proceedings"), Lender by itself or through its authorized representative shall
have the right to participate in any such Condemnation Proceedings and the award
or payment that may be made in any such Condemnation Proceedings is hereby
assigned to Lender and shall be deposited with Lender and disbursed in the
manner set forth in this Section 1.07. Borrower will give Lender or its
authorized representative immediate notice of the actual or threatened
commencement of any Condemnation Proceedings affecting all or any part of the
Secured Property, including severance and consequential damage and change in
grade in streets, and will deliver to Lender or its authorized representative
copies of any and all papers served in connection with any such proceedings.
Notwithstanding the foregoing, Lender or its authorized
representative is hereby authorized, at its option, to commence, appear in and
prosecute with Borrower, in its own or Borrower's name, any action or proceeding
relating to any such condemnation. No settlement for the damages sustained
thereby shall be made by Borrower without Lender's or its authorized
representative's prior written approval thereof, which approval will not be
unreasonably withheld, delayed or conditioned.
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<PAGE> 21
Borrower may not settle for the damages sustained thereby without Lender's
consent, not to be unreasonably withheld; provided, however, that Borrower may,
without Lender's consent, settle for the damages sustained thereby if the
resulting settlement is in an amount sufficient to satisfy the Indebtedness in
full. Borrower agrees to execute any and all further documents that may be
required in order to facilitate the collection of any award or awards and the
making of any such deposit.
B. Application of Condemnation Award. If at any time title or temporary
title to the whole or any part of the Secured Property shall be taken in
Condemnation Proceedings or pursuant to any agreement between Borrower, Lender
and those authorized to exercise the right to condemnation, Lender by itself or
through its authorized representative, at its option in its sole and absolute
discretion and without regard to the adequacy of its security hereunder, shall
have the right to apply such award or proceeds which it receives to payment of
the Indebtedness in inverse order of maturity. In the event that all or
substantially all of the Secured Property is taken and the amount of the award
or proceeds received by Lender shall not be sufficient to pay the then unpaid
balance of the Indebtedness, then the balance of the Indebtedness shall, at the
option of Lender or its authorized representative, become immediately due and
payable and Borrower shall, within thirty (30) days after the application of the
award or proceeds as aforesaid, pay such deficiency to Lender. "Substantially
all of the Secured Property" shall be deemed to have been taken if the remainder
of the Secured Property (1) in the sole opinion of Lender's Architect, cannot be
capable of being restored to a self-contained and architecturally complete unit
or units or (2) in the sole reasonable opinion of Lender or its authorized
representative, the balance of the Secured Property as restored will not be
economically viable and capable of supporting all carrying charges and operation
and maintenance expenses.
C. Reimbursement of Costs. In the case of any taking covered by the
provisions of this Section 1.07, Lender or its authorized representative (to the
extent that it has not been reimbursed therefor by Borrower) shall be entitled,
as a first priority, to the reimbursement out of any award or awards for all
reasonable costs, fees, reimbursements to Lender and its authorized
representative and expenses incurred in the determination and collection of any
such awards.
D. Existing Obligations. Notwithstanding any taking by Condemnation
Proceedings, Borrower shall continue to pay the monthly installments due under
the Note as well as all other sums secured by this Instrument at the rate
provided therein until any such award or payment shall have been actually
received by Lender and applied to the Indebtedness. Any reduction in the
Indebtedness resulting from Lender's application of such award or payment as
hereinabove set forth shall be deemed to take effect only on the date of receipt
by Lender. If prior to Lender's receipt of such award or payment the Secured
Property shall have been sold on foreclosure of this Instrument, Lender shall
have the right to receive said award or payment to the extent of any portion of
the Indebtedness still unpaid after application of the proceeds of the
foreclosure sale,
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<PAGE> 22
with interest thereon at the Increased Rate, plus reasonable attorneys' fees and
other costs and disbursements actually incurred by Lender in connection with the
collection of such award or payment and in establishing the deficiency. The
application of condemnation proceeds to the obligations secured by this
Instrument, whether or not then due or not then due or payable, shall not
postpone, abate or reduce any of the periodic installments of principal and/or
interest thereafter to become due under this Instrument until the Indebtedness
is paid in full.
E. Application of Award. Notwithstanding any provision contained herein
to the contrary, if all or any part of the Premises shall be taken in a
Condemnation Proceeding (except for a taking which occurs during the last six
months of the loan term), Lender shall, after deducting Lender's reasonable
costs in connection with the disbursement of funds, apply the award or payment
to the cost to restore, repair or alter the remaining portion of the Secured
Property, subject to the provisions of subsection 1.03G (which shall apply in
all respects except that any reference therein to insurance proceeds shall be
deemed to refer to the award or payment in the taking, and Borrower shall
likewise have the right to request that the award be deposited in an
interest-bearing account if the award is in excess of $100,000.00, in accordance
with the provisions of Section 1.03F(1)), and Borrower will promptly restore,
repair or alter the remaining Secured Property. The provisions of this
subsection 1.07E shall not apply unless (1) the balance of the Improvements
shall, in the opinion of Lender's Architect, be capable of being restored to a
self-contained and architecturally complete unit or units, (2) the balance of
the Improvements after restoration to a self-contained and architecturally
complete unit or units shall, in the reasonable opinion of Lender, be
economically viable and capable of supporting all carrying charges and operating
and maintenance expenses of the Secured Property, after reduction, if any, of
the Indebtedness in accordance with the following sentence, and (3) Borrower
shall furnish to Lender evidence satisfactory to Lender that the Improvements so
restored or reconstructed and their use would fully comply with all zoning and
building laws, ordinances and regulations, and with all other applicable
federal, state and municipal laws and requirements. The balance of the
condemnation award or payment so deposited with Lender, after disbursement in
accordance with this subsection 1.07E sall be applied to the Indebtedness in
inverse order of maturity, whether or not the same shall then be due and
payable. all awards and payments and other sums deposited with Lender, until
expended or applied as provided in this subsection, may be commingled with the
general funds of Lender and shall constitute additional security for the
Indebtedness and shall not bear interest: In all cases where a taking occurs
during the last six months of the loan term, or if Lender has determined in its
sole reasonable discretion that leases remaining in effect after the taking do
not produce rental income of at least 110% of the debt service on the
Indebtedness for such period (taking into account any rent loss insurance
proceeds available with respect to such taking), or where any of the conditions
set forth in Section 1.03G(l)(a), (b) (c), (e) and (f) are not satisfied, or in
Lender's sole reasonable judgment Borrower is not proceeding with the repair or
restoration in a manner that would entitle Borrower to have the awards or
payments disbursed to it, Lender, at its option in its sole and absolute
discretion and without regard to the adequacy of its security hereunder, shall
have the right to apply such
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award or proceeds which it receives to payment of the Indebtedness in the
inverse order of maturity, whether or not the same shall then be due and
payable.
1.08 Leases.
A. Performance of Lessor's Covenants. Borrower, as lessor, has entered
and will enter into leases with space tenants, as lessees, for parts or all of
the Secured Property (all such ]eases for parts or all of the Secured Property
are hereinafter referred to individually as a "Lease" and collectively as
"Leases" and the lessees under such Leases are hereinafter referred to
individually as a "Lessee" and collectively as "Lessees"). Borrower shall
faithfully perform the lessor's covenants under any subsisting and future Leases
affecting the Secured Property or any part thereof, and neither do, nor neglect
to do, nor permit to be done (other than enforce the terms of such Leases and
exercise the lessor's remedies thereunder following a default or event of
default on the part of any Lessee in the performance of its prescribed
obligations), anything which may cause the modification or termination of any of
said Leases, or of the obligations of any Lessee or any other person claiming
through such Lessee, or which may diminish or impair the value of any Lease or
the rents provided for therein, or the interest of the lessor or of Lender
therein or thereunder.
B. Notice of Default. Borrower will give Lender or its authorized
representative immediate notice, by certified mail, of any notice of default,
event of default or cancellation given to or received from (i) any Lessee having
a Lease of more than 5,000 square feet, (ii) all Lessees having a Lease of 5,000
square feet or less, when in any six month period such notices are given by
Lessees having Leases of 40,000 square feet or more in the aggregate, and (iii)
Lessees under any Lease having a remaining term of 1 year or more.
C. Representations Regarding Leases. Borrower hereby represents and
warrants that to the knowledge and belief of Borrower, upon due inquiry, (1) all
representations made by it in the Leases are true; (2) all Improvements and the
leased space demised and let pursuant to each Lease have been completed to the
satisfaction of Lessee; (3) each Lessee has accepted possession of its leased
space and has opened for business and commenced payment of rent under its Lease;
(4) each Lessee is in occupancy; (5)all rents and other charges due and payable
under the Leases have been paid except as disclosed in writing to Lender; (6) no
rent has been prepaid, except as expressly described under such Lease; (7) there
is no existing default or breach of any covenant or condition on the part of any
Lessee or Lessor under any Lease except as disclosed in writing to Lender and no
Lessee has any rights to any offsets or concessions, claims or defenses to the
enforcement of such Lease except as disclosed in writing to Lender; (8) there
are no options to purchase all or any portion of the Secured Property contained
in any Lease; (9) there are no options to renew by any Lessee except as stated
in the Leases; (10) there are no amendments of or modifications to any Leases
except as disclosed in writing to Lender; and (11) no leasing brokerage
commissions are due or payable or to come due and payable with respect to the
Leases (except for one $10,000.00
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<PAGE> 24
commission due in January, 1997 with respect to one Lessee, and commissions due
upon renewals, extensions and expansions with respect to such Lessees as have
been disclosed in writing to Lender).
D. Manager. The manager of the Secured Property shall be of good
reputation and be generally recognized as experienced in the management of
properties of size and type similar to the Secured Property. The manager or
management may not be changed without first having obtained Lender's or its
authorized representative's prior written consent, which consent shall not be
unreasonably withheld, delayed or conditioned.
E. Covenants Regarding Leases. Borrower covenants it will not, without
the prior written consent of the Lender obtained in each instance, which consent
shall not be unreasonably withheld, delayed or conditioned:
(1) lease to any person, firm or corporation, except for actual
occupancy by such person, firm or corporation, all or any part of the space in
any of the Improvements;
(2) cancel, terminate or accept a surrender or suffer or permit any
cancellation, termination or surrender of any Lease (except in each case in
accordance with the terms thereof) other than any Lease having a remaining term
of less than six (6) months;
(3) modify any Lease so as to reduce the term thereof or the
rent payable thereunder, or to change any renewal provision contained therein;
(4) commence any summary proceeding or other action to recover
possession of any space demised pursuant to any Lease, other than a proceeding
brought in good faith by reason of a default of any Lessee;
(5) receive or collect or permit the receipt or collection of any
rental payments of more than one monthly installment of rent under any Lease
in advance of the due dates of such rental payments;
(6) take any other action with respect to any Lease which
would tend to impair materially the security of the Lender under this
Instrument;
(7) extend any present Lease other than in the manner presently
provided for therein, except on the best terms reasonably obtainable, and on
Borrower's standard form without material variance in comparison to the terms
afforded other Lessees;
(8) execute an agreement or create or permit a lien which may be or
become superior to any existing Leases affecting the Secured Property;
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(9) sell, assign, transfer, mortgage, pledge or otherwise dispose of
or encumber, whether by operation of law or otherwise, any Lease or any rentals
under any Lease or any rents, income, profits or cash collateral issuing from
the Secured Property;
(10) request, consent, or agree to or accept the subordination
of any Lease to any mortgage, deed to secure debt, deed of trust or other
encumbrance now or hereafter affecting the Premises other than this instrument;
(11) fail to perform any material covenant or agreement to be
performed by Borrower, as lessor under any of the leases; or
(12) suffer or permit to occur any release of liability of any
Lessee or the accrual of any right in any Lessee to withhold payment of Rents
(as hereinafter defined);
(13) enter into any new Lease of all or any portion of the
Premises except as provided herein, provided, however, that Borrower may enter
into new Leases of less than 10,000 rentable square feet or having a term of
less than two (2) years, in either case without Lender's prior written approval,
provided such lease is on Borrower's standard lease form as approved by Lender
without material variance in comparison to the terms afforded other Lessees.
Lender will not unreasonably withhold its consent to any Lease submitted to
Lender as to which Lender's consent or approval is required or as to matters set
forth in Section 1.08(E)(1), (2), (3), (7), (11) and (12). Any Lease or written
request under 1.08(E)(1), (2), (3), (7), (11) or (12) submitted to Lender for
its approval which is not approved or disapproved by Lender within ten (10)
business days after Lender's receipt thereof shall be deemed approved by Lender,
provided it is specified on the Lease (or such other request for approval) so
submitted or the accompanying cover letter that the Lease will be deemed
approved by Lender if Lender does not disapprove such Lease (or such other
matter, as applicable) within ten (10) business days after Lender's receipt
thereof. Except in instances where Lender's approval is deemed to have been
given as provided in the immediately preceding sentence, all consents, approvals
or disapprovals of Lender as may be given or required hereunder shall only be
valid if given in writing.
F. Application of Rents. Borrower shall use and apply all rents, income and
profits from the Secured Property first to the payment of the Indebtedness in
accordance with the terms of the Loan Documents, and then to the payment of all
Impositions and costs and expenses of management, operation, repair,
maintenance, preservation, reconstruction and restoration of the Secured
Property in accordance with the requirements of this instrument and the
obligations of Borrower as the lessor under any Lease, and shall not use such
rents, income or profits for purposes unrelated to the Secured Property unless
and until all current payments on the Indebtedness, Impositions,
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and such costs and expenses have been paid or provided for and adequate cash
reserves have been set aside on a monthly basis to ensure the timely payment of
Impositions and Indebtedness next coming due.
1.09 Assignment of Leases, Rents, Income, Profits and Cash Collateral.
A. Assignment; Discharge of Obligations. Borrower does hereby
absolutely and presently bargain, sell, assign and set over unto Lender, all
Leases, rents, income, profits, royalties, income, tax refunds, other refunds
and other benefits. including, without limitation, benefits accruing from all
present and future oil, gas and mineral leases and agreements derived from the
Premises and any and all cash collateral (all of the foregoing, the "Rents"),
which, whether before or after foreclosure or during the full period of
redemption, shall be made upon or accrue and be owing for the use or occupation
of the Secured Property and of the buildings and fixtures thereon, or any part
thereof. For the aforesaid purpose, Borrower does hereby constitute and appoint
Lender its attorney-in-fact, irrevocably in its name, to receive, collect and
receipt all sums due or owing for such use and occupation, as the same accrue,
and, out of the amount so collected, Lender, its successors and assigns, are
hereby authorized (but not obligated) to pay and discharge all obligations of
Borrower hereunder, including, but not being limited to, the obligation to pay
the Indebtedness (and including any accelerated Indebtedness) in such order as
Lender, its successors or assigns, may determine and whether due or not, and to
pay the remainder, if any, to Borrower, but neither this assignment nor any such
action shall constitute Lender as a "mortgagee in possession". The assignments
of Leases, rents, income, profits and any and all cash collateral of the Secured
Property in this Section 1.09 is intended to be an absolute and present
assignment from Borrower to Lender and not merely the passing of a security
interest. Borrower shall, at any time or from time to time, upon request of
lender, execute and deliver any instrument as may be requested by Lender to
further evidence the assignment and transfer to Lender of Borrower's interest in
any Lease. Nothing herein shall in any way limit Lender's remedies or Borrower's
obligations under the Assignment to Lender. It is the intent of the parties that
the terms of this Instrument and the terms of the Assignment shall be
cumulative, but to the extent of any contradictions between the terms of the
Assignment and the terms of this Instrument as to the Leases and the Rents, the
terms of the Assignment shall control.
B. Entry Onto Secured Property; Lease of Secured Property. Upon the
occurrence of an Event of Default (as hereinafter defined), Lender at its sole
option shall have the right by itself or through its authorized representative,
to enter and take possession of the Secured Property and manage and operate the
same as further provided in subsection 4.01C, including, without limitation, the
right to enter into Leases and new agreements extending said termination dates
beyond the maturity set forth in the Note and take any action which, in Lender's
judgment, is necessary or proper to conserve the value of the Secured Property.
The expense (including any receiver's fees, attorneys' fees, costs and agent's
compensation) incurred pursuant to the powers herein contained shall be secured
hereby. Lender shall not be liable to account to Borrower for any action taken
pursuant hereto other than to account for any rents actually received by Lender.
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C. License to Manage Secured Property. Notwithstanding anything to
the contrary contained in subsection 1.09A above, so long as there shall exist
no Event of Default hereunder, Borrower shall have the license to manage and
operate the Secured Property, subject to Section 1.08 herein including without
limitation, the right to enter into Leases, and collect, as they accrue, all
such rents, income, profits and cash collateral.
D. Delivery of Assignments. Borrower will, as requested from time to
time by Lender, execute such additional documents as are reasonably requested by
Lender, to evidence the assignment to Lender or its nominee of any Leases now or
hereafter made upon said Secured Property, such assignment documents to be in
form and content acceptable to Lender. For the aforesaid purposes, Borrower
agrees to deliver to Lender or its authorized representative within thirty (30)
days after Lender's request, a duplicate original (or copy certified by Borrower
to be accurate and complete) of every Lease which is at the time of such request
outstanding upon the said Secured Property and in addition thereto shall supply
Lender or its authorized representative at its request a complete list of each
and every Lease certified by (l) an officer of Borrower, if Borrower is a
corporation, or (2) a general partner of Borrower (or an officer of any such
general partner which is a corporation) if Borrower is a partnership or (3) a
trustee of Borrower (or an officer of any such trustee which is a corporation)
if Borrower is a trust, or (4) Borrower if Borrower is an individual or
individuals, showing unit number, type, name of each Lessee, monthly rental,
date to which rents have been paid, term of Lease, date of occupancy, date of
expiration and any and every special concession or inducement granted to Lessee.
E. Indemnity. Notwithstanding anything to the contrary set forth in
this Section 1.09, Borrower agrees that in the exercise of the rights of Lender
contained in this Section 1.09, no liability shall be asserted by Borrower
against Lender or its authorized representative, all such liability being
expressly waived and released by Borrower. Borrower hereby holds Lender and its
authorized representative harmless time and against any and all claims,
liabilities and expenses of any kind or nature against or incurred by Lender and
its authorized representative arising out of such management, operation or
maintenance of the Secured Property or the collection and disposition of rents,
income, profits or cash collateral therefrom, except for Lender's gross
negligence or willful misconduct.
1.10 Further Assurances.
A. General; Appointment of Attorney-in-Fact. At any time, and from
time to time, upon request by Lender, Borrower will make, execute, and deliver
or cause to be made, executed and delivered to Lender or its authorized
representative, any and all other instruments, certificates and other documents
as may, in the reasonable opinion of Lender or its authorized representative,
be necessary or desirable in order to effectuate, complete, perfect or continue
and preserve the obligations of Borrower under the Note and the Loan Documents.
Upon any failure by Borrower to do so, Lender may make, execute and record any
and all such instruments, certificates and documents for and in the
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name of Borrower and Borrower hereby irrevocably appoints Lender the agent and
attorney-in-fact of Borrower for such purposes. Such power of attorney is
coupled with an interest and is irrevocable by death or otherwise. Borrower will
reimburse Lender and its authorized representative for any reasonable or
customary sums expended by them in making, executing and recording such
instruments, certificates and documents and such sums shall be secured by this
Instrument.
B. Statement Regarding Indebtedness. Borrower from time to time,
within ten (10) days after request by Lender, shall furnish Lender or its
designee with a written statement, duly acknowledged, setting forth the unpaid
principal of, and interest on, the Indebtedness secured hereby and whether or
not any set-offs or defenses exist against such principal and interest, and, if
so, the particulars thereof. Lender shall, no more often than one (l) time per
calendar year and at Borrower's expense, within ten (10) days after request by
Borrower, furnish Borrower or its designee with a written statement, duly
acknowledged, setting forth the unpaid principal of, and interest on, the
Indebtedness secured hereby and whether or not any setoffs or defenses exist
against such principal and interest, and, if so, the particulars thereof.
C. Additional Security Instruments. Borrower shall from time to
time, within fifteen (15) days after request by Lender or its authorized
representative, execute, acknowledge and deliver to Lender or its authorized
representative such chattel mortgages, security agreements or other similar
security instruments in favor of Lender, in form and substance satisfactory to
Lender or its authorized representative, covering all property of any kind
whatsoever owned by Borrower or in which Borrower may have any interest which,
in the sole opinion of lender or its authorized representative, is essential to
the operation and maintenance of the Secured Property. Borrower shall further
from time to time within fifteen (15) days after request by Lender or its
authorized representative, execute, acknowledge and deliver any financing
statement, renewal, affidavit, certificate, continuation statement or other
document as Lender or its authorized representative may request in order to
perfect, preserve, continue, extend or maintain the security interest under, and
the priority of, this Instrument or such chattel Instrument or other security
instrument as a first priority security title, lien and security interest.
Borrower further agrees to pay to Lender or its authorized representative on
demand all costs and expenses incurred by Lender and its authorized
representative in connection with the preparation, execution, recording. filing
and refiling of any such instrument or document, including the charges for
examining title and the attorneys' fee for rendering an opinion as to the
priority of this Instrument and of such chattel Instrument or other security
instrument as a valid first and subsisting security title, lien and security
interest. However, neither a request so made by Lender or its authorized
representative nor the failure of Lender or its authorized representative to
make such a request shall be construed as a release of such property, or any
part thereof, From the lien of this Instrument, it being understood and agreed
that this covenant and any such chattel Instrument, security agreement or other
similar security instrument, delivered in favor of Lender, are cumulative and
given as additional security. Borrower shall also pay all actual premiums and
related costs in connection with any title
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insurance policy or policies in full or partial replacement of the title policy
now insuring or which will insure the security title and lien of this
Instrument.
D. Security Agreement.
(1) This Instrument shall constitute a security agreement
under Article 9 of the Uniform Commercial Code as adopted in the State of
Georgia (the "Code") with respect to the Personal Property covered by this
Agreement. Borrower hereby appoints Lender as its attorney-in-fact to execute
and file on its behalf any financing statements, continuation statements or
other statements in connection therewith which Lender deems necessary or
reasonably advisable to preserve and maintain the Priority of the lien hereof,
or to extend the effectiveness thereof, under the Code or any other laws which
may hereafter become applicable. This power, being coupled with an interest,
shall be irrevocable so long as any part of the Indebtedness remains unpaid.
Borrower shall pay to Lender or its authorized representative, from time to
time, upon demand, any and all costs and expenses incurred by Lender and its
authorized representative in connection with the filing of any such statements
including, without limitation reasonable attorneys' fees and all disbursements
and such amounts shall be part of the indebtedness secured by this Instrument.
(2) Borrower represents and warrants that:
(i) Borrower's chief executive office is located at 115
Perimeter Center Place, Suite 940, Atlanta, Georgia 30346.
(ii) Borrower's only places of business in the State of
Georgia is the Land and as set forth in (i) above, and the only location where
any of the Personal Property is located, is the Land.
(iii) All tangible Personal Property shall be located at the
Premises.
(iv) The Personal Property shall be used solely for business
purposes.
Borrower shall furnish Lender with notice of any changes in the matters
addressed by clauses (i) through (iv) above within thirty (30) days after the
effective date of any such change, and Borrower will promptly execute any
financing statements or other instruments deemed necessary by Lender to prevent
any filed financing statement from becoming misleading or to continue the
perfection of the security interest granted hereby.
(3) Upon the occurrence of an Event of Default, Lender shall
have the remedies of a secured party under the Code including, without
limitation, the right to take immediate and exclusive possession of the Personal
Property or any part thereof, and for that purpose may enter upon any place
where the Personal Property or
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any part thereof may be situated and remove the same therefrom, and Lender shall
be entitled to hold, maintain, preserve and prepare the Personal Property for
sale until disposed of, or may retain such property subject to the right of
redemption of Borrower, if any, in satisfaction of the obligations of Borrower,
all as provided in the Code. Lender. without removal, may dispose of the
Personal Property at the Premises. Lender may require Borrower to assemble the
Personal Property and make it available to Lender for its possession at a place
to be designated by Lender which is reasonably convenient to the parties. Lender
will give Borrower at least twenty (20) days prior notice of the time and place
of any public sale thereof or of the time after which any private sale or any
other intended disposition thereof is to be made. The requirements of reasonable
notice shall be met if such notice is provided in accordance with the provisions
hereof at least twenty (20) days before the time of the sale of disposition.
Lender or Borrower may buy at any public sale and if the Personal Property is of
a type customarily sold in a recognized market or is of a type which is the
subject of widely distributed standard price quotations, Lender may buy at
private sale and may credit the Indebtedness in satisfaction of its bid. Any
such sale may be held as part of and in conjunction with any judicial or
non-judicial foreclosure sales of the real estate comprising the Secured
Property, and the Personal Property and any remaining Secured Property may be
sold as one lot if Lender so elects. The net proceeds realized upon any such
disposition after deduction for the expenses of retaking, holding, preparing for
sale, selling and the like and the reasonable attorneys' fees and legal expenses
incurred by Lender shall be applied in satisfaction of the Indebtedness hereby
secured. Lender will account to Borrower for any surplus realized on such
disposition. The remedies of Lender hereunder are cumulative and the exercise of
any one or more of the remedies provided herein or under the Code shall not be
construed as a waiver of any other remedies of Lender.
E. Preservation of Borrower's Existence. If Borrower is a
partnership or a corporation, it shall do all things necessary to preserve and
keep in full force and effect its existence, franchise, rights and privileges
under the laws of the state of its formation or incorporation and the state in
which the Secured Property is located, if required by the laws of such state,
and shall comply with all regulations, rules, ordinances, statutes, orders and
decrees of any governmental or quasi-governmental authority or court applicable
to it.
F. Further Indemnities. In addition to any other indemnities to
Lender specifically provided for in this Instrument, Borrower hereby indemnifies
and saves Lender and its authorized representative harmless from and against any
and all losses, liabilities, suits, obligations, fines, damages, penalties,
claims, costs, charges, and expenses, including, without limitation, reasonable
architects', engineers' and attorneys' fees and all disbursements which may be
imposed upon, incurred or asserted against Lender and its authorized
representative prior to any entry by Lender or its authorized representative
onto the Premises and taking of possession of the Premises or any part thereof
by reason of: (1) the construction of the Improvements, (2) any capital
improvements, other work or things, done in, on or about the Secured Property or
any part thereof, (3) any use, non-use, misuse, possession, occupation,
alteration, repair, condition, operation,
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maintenance or management of the Secured Property or any pan thereof or any
street. drive, sidewalk, curb, passageway or space comprising a part thereof or
adjacent thereto. (4) any negligence or willful act or omission on the part of
Borrower, any Lessee under a Lease or their property managers, agents,
contractors, servants, employees, licensees or invitees, (5) any accident,
injury (including death) or damage to any person or property occurring in, on or
about the Secured Property or any part thereof or in, on or about any street,
drive, sidewalk, curb, passageway or space adjacent thereto, (6) any default or
Event of Default (as herein defined), (7) any lien or claim which may be alleged
to have arisen on or against the Secured Property or any part thereof under the
laws of the local or state government or any other governmental or
quasi-governmental authority or any liability asserted against Lender or its
authorized representative with respect thereto, (8) any tax attributable to the
execution, delivery, filing or recording of this Instrument, the Note, any
Lease, or any other Loan Documents, (9) any contest permitted pursuant to the
provisions of this Instrument, and (10) the presence of any Hazardous Materials
(as such term is defined in subsection 1.05F herein) in or about the Secured
Property which was initially on or about the Secured Property during or prior to
Borrower's legal or beneficial ownership of the Secured Property.
G. Absence of Insurance. The obligations of Borrower under this
Section 1.10 shall not in any way be affected by the absence in any case of
covering insurance, by the amount of the insurance or by the failure or refusal
of any insurance carrier to perform any obligation on its part under insurance
policies affecting the Secured Property. If any claim, action or proceeding is
made or brought against Lender and/or its authorized representative by reason of
any event as to which Borrower is obligated to indemnify Lender, then, upon
demand by Lender and/or its authorized representative, Borrower, at its sole
cost and expense, shall resist or defend such claim, action or proceeding in
Lender's or its authorized representative's name, if necessary, by the attorneys
for Borrower's insurance carrier, if such claim, action or proceeding is covered
by insurance, otherwise by such attorneys as Lender or its authorized
representative shall approve. Notwithstanding the foregoing, Lender or its
authorized representative may engage its own attorneys in its reasonable
discretion to defend it or to assist in its defense and Borrower shall pay the
reasonable fees and disbursements of such attorneys and such amounts shall bear
interest at the Increased Rate and shall be secured by this Instrument.
1.11 Further Sales or Encumbrances.
A. Continuing Ownership and Management. Borrower acknowledges
that the continuous ownership of the Secured Property and the continuous
management and/or control of the operation of same by Borrower is of a material
nature to the transaction and the making of the loan evidenced by the Note and
secured by this Instrument.
B. Transfer or Encumbrance of Secured Property. Borrower shall not,
without the prior written consent of Lender or its authorized representative
being first had and obtained (which consent may be granted or denied in Lender's
or its authorized
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representative's sole discretion), voluntarily or involuntarily, by operation of
law or otherwise, transfer or dispose of, or suffer any third party to transfer
or dispose of, all or any portion of the Secured Property or any interest
therein or the management and/or operation by Borrower of the Secured Property.
For purposes of this Section 1.11, a transfer or disposition of the Secured
Property or any part thereof or interest therein shall include, without
limitation the sale of the Secured Property or any portion thereof to a
residential cooperative corporation, conversion of all or any part of the
Secured Property to a condominium form of ownership, execution of a contract to
sell or option to purchase all or any portion of the Secured Property or any
interest therein (other than a contract or agreement which provides for a
purchase price in excess of the amount necessary to satisfy the Indebtedness in
full, or a contract or agreement which by its terms provides that Borrower's
obligations thereunder are subject to Lender's approval), any lease for space in
any Improvements on the Secured Property for purposes other than occupancy by
the tenant, any lease for space in Improvements containing an option to
purchase, or any direct or indirect sale, assignment, conveyance, transfer
(excluding a transfer as a result of or in lieu of condemnation, except for a
voluntary conveyance by Borrower not permitted under Section 1.07A), or other
alienation of all or any portion of the Secured Property or any interest
therein, including, but not limited to, the creation of a lien or other
encumbrance on the Secured Property or any part thereof or interest therein, and
further including any assignment, pledge, grant of security interest in,
conditional sale, or the execution of a title retention agreement with regard to
any personality included in the Secured Property. For purposes of this Section
1.11, a transfer or disposition shall not include any Lease entered into in
accordance with subsection 1.08E or any easement for the provision of utilities
or other services to any portion of the Secured Property. Any such action
described in this subsection 1.11B is herein called a "Transfer." A Transfer
shall also include, without limitation, any of the following events, whether
made directly or through an intermediary, and whether made in one transaction or
effected in more than one transaction:
(1) If Borrower or any general partner of Borrower is a corporation,
a transfer or disposition of more than 25% of the outstanding voting stock of
Borrower or such general partner of Borrower or of any other corporation
directly or indirectly owning or controlling 25% or more of the voting stock of
Borrower or such general partner;
(2) If Borrower or any general partner of Borrower is a partnership,
a transfer or disposition of any interest of any general partner in Borrower or
such general partner of Borrower; or
(3) If Borrower or any general partner of Borrower is a trust or
other entity, a transfer or disposition of more than 25% of the beneficial
interests in Borrower or such general partner of Borrower.
For purposes of the foregoing, a "transfer or disposition" of such stock or
interests shall include, without limitation, any direct or indirect sale
thereof, any execution of a contract
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or other agreement to sell or option to purchase such stock or interests (other
than a contract or agreement which provides for a purchase price in excess of
the amount necessary to satisfy, the Indebtedness in full, or a contract or
agreement which by its terms provides that Borrower's obligations thereunder are
subject to Lender's approval), or any assignment of such stock or interests,
including any assignment for security purposes, but shall exclude any transfer
by devise or operation of law.
C. Acceleration of Indebtedness. In the event of a Transfer without
the prior written consent of Lender or its authorized representative, Lender
may, without limiting any other right or remedy available to Lender at law, in
equity or by agreement with Borrower and in Lender's or its authorized
representative's absolute discretion and without regard to the adequacy of its
security, accelerate the maturity of the Note and require the payment of the
then existing outstanding principal balance and all other sums due under the
Note and under this Instrument, including, but not limited to, the prepayment
charge provided in Section 4.06 herein. The giving of consent by Lender or its
authorized representative to a Transfer in any one or more instances shall not
limit or waive the need for such consent in any other or subsequent instances.
D. Wrap-Around Financing. Should the Secured Property at any time be
or become subject to the lien of any agreement, deed of trust, deed to secure
debt or mortgage or similar instrument in connection with which payments on
account of the Indebtedness secured hereby are to be made directly or indirectly
by or through a mortgagee, grantee or beneficiary thereunder, regardless of
whether or not payment of the indebtedness secured hereby is assumed by such
mortgagee, grantee or beneficiary, the whole of the principal sum and interest
and other sums hereby secured, at the option of Lender, shall immediately become
due and payable.
1.12 Reserved.
1.13 Expenses. Borrower will pay or reimburse Lender and its authorized
representative for all reasonable attorneys' fees, costs and expenses actually
incurred by Lender and its authorized representative in any proceedings
affecting the Indebtedness or the Secured Property, (A) involving the estate of
a decedent or an insolvent, or (B) in any action, legal proceeding or dispute of
any kind in which Lender and/or its authorized representative is made a party,
or appears as party plaintiff or defendant, including, but not limited to, any
exercise of the power of sale or judicial foreclosure as set forth in this
Instrument, any bankruptcy, receivership or other insolvency under any chapter
of the Bankruptcy Code (Title 11 of the United States Code), as amended, or in
any other Property or any action to protect the security hereof or upon the
reasonable concern of Lender or its authorized representative with the condition
of the Secured Property, and any such amounts paid by Lender and its authorized
representative shall be added to the any condemnation action involving the rents
for collection, foreclosure or for any cause set forth in Article III hereof,
Borrower shall pay all expenses incurred by Lender and its authorized
representative, including reasonable
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attorneys' fees actually incurred at the normal and customary hourly billing
rates of the attorneys actually performing services and disbursements, all costs
of collection, litigation costs, and costs (which may be estimated as to items
to be expended after entry of the decree) of procuring title insurance policies,
whether or not obtained, Torrens certificates. and similar assurances with
respect to title and value as Lender may deem reasonably necessary together with
all statutory costs, with or without the institution of an action or proceeding.
all such costs and expenses with interest thereon at the Increased Rate shall be
deemed to be secured by this Instrument.
ARTICLE II
WARRANTIES AND REPRESENTATIONS
Borrower makes the following warranties and representations:
2.01 Warranty of Title. Borrower (A) is lawfully seized and possessed
of the Secured Property, in fee simple, subject to no mortgage, deed to secure
debt, lien, charge or encumbrance, except for Permitted Encumbrances described
in Exhibit B attached hereto and made a part hereof, (B) has full power and
lawful authority to grant, bargain, sell, convey, assign, release, pledge,
warrant, set over and transfer the Secured Property in the manner and form
hereby conveyed, (C) is the fee owner of the Land and the Improvements, (D) is
the owner of the Personal Property, (E) does warrant and will defend the title
to the Secured Property against all claims and demands whatsoever, subject to
the Permitted Encumbrances described in Exhibit B attached hereto and made a
part hereof, and (F) except as expressly permitted herein, the Secured Property
is free, and will be kept free of any and all Hazardous Materials (as such term
is defined in subsection 1.05F herein).
2.02 Ownership Of Improvements And Personal Property. All Improvements
and Personal Property now or hereafter affixed, placed or used by Borrower are
and will hereafter be owned by Borrower free from any prior liens or
encumbrances, provided, however, that if any of the foregoing Improvements or
Personal Property shall be subject to a conditional bill of sale, chattel
mortgage or other agreement creating a security interest, then all of the right,
title and interest of Borrower in and to such Improvements and Personal Property
together with the benefits of any deposits or payments now or hereafter made
thereon shall be covered by and subject to this Instrument.
2.03 No Pending Material Litigation or Proceeding; No Hazardous
Materials.
A. Proceedings Affecting Borrower. There are no actions, suits
or proceedings pending, and, to the best knowledge and belief of Borrower, there
are no actions, suits, investigations or proceedings threatened, against or
affecting Borrower, or the business, operations, properties or assets of
Borrower, or before or by any governmental department, commission, board.
regulatory authority, bureau, agency or instrumentality, domestic, foreign,
federal, state or municipal (collectively, "Governmental
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Agency"), or any court, arbitrator or grand jury, which may result in any
maternal adverse change in the business, operations, properties or assets or in
the condition, financial or otherwise, of Borrower, and the Secured Property or
in the ability of Borrower to perform its obligations under the Note or this
Instrument. To the best knowledge and belief of Borrower, Borrower is not in
default, and there is no other default, with respect to any judgment, order,
writ, injunction, decree, demand, rule or regulation of any court, arbitrator,
grand jury or of any Governmental Agency, default under which might have
consequences which would materially and adversely affect the business,
operations, properties or assets or the condition, financial or otherwise, of
Borrower and the Secured Property or the ability of Borrower to perform its
obligations under the Note or this Instrument.
B. Proceedings Affecting Secured Property. There are no proceedings
of any kind pending, or, to the best knowledge and belief of Borrower,
threatened against or affecting Borrower, the Secured Property (including any
attempt or threat by any Governmental Agency to condemn or rezone all or any
portion of the Secured Property), any party constituting Borrower or any general
partner in any such party, or involving the validity, enforceability or priority
of this Instrument, the Note or any of the other Loan Documents or enjoining or
preventing or threatening to enjoin or prevent the use and occupancy of the
Secured Property or the performance by Lender or of its obligations hereunder,
and there are no rent controls, governmental moratoria or environmental controls
(other than those generally imposed by federal or state law upon property in the
State of Georgia) presently in existence, or to the best knowledge of Borrower,
threatened, affecting the Secured Property, except as identified in writing to,
and approved by, Lender.
C. No Hazardous Materials. Neither the Borrower nor, to the best
knowledge and belief of the Borrower, any other person has ever caused or
knowingly permitted, in violation of law, any Hazardous Material to be placed,
held, located or disposed of, on, under or at the Secured Property or any part
thereof, or any other real property legally or beneficially owned (or any
interest or estate which is owned) by the Borrower in any state now or hereafter
having in effect a so-called "Superlien" law or ordinance or any part thereof
(the effect of which would be to create a lien on the Secured Property to secure
any obligation in connection with the real property in such state), and neither
the Secured Property, nor any pan thereof, nor any other real property legally
or beneficially owned (or any interest or estate therein which is owned) by the
Borrower in any state now or hereafter having in effect a so-called "Superlien"
law or ordinance or any part thereof, has ever been used (whether by the
Borrower or, to the best knowledge of the Borrower, by any other person) as a
dump site or storage (whether permanent or temporary) site for any Hazardous
Material. Borrower further represents and warrants that neither Borrower nor, to
the best knowledge and belief of Borrower, any other person has ever caused or
knowingly permitted any asbestos or underground fuel storage facility to be
located on the Secured Property except as set forth in the following reports,
copies of which have been provided to Lender:
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1. Phase One Indoor Air Quality Report for Atlanta Financial Center.
dated June 10, 1996, prepared by Environmental Design
International, Ltd.
2. Letter re: Results of Indoor Air Quality Survey, dated September
9. 1993, prepared by Law Engineering, Inc., Project No.
5560545901.
3. Report of Phase I Environmental Assessment, dated August 8, 1995,
prepared by Law Engineering, Inc., Project No. 579- 09058.01.
4. Phase I Environmental Site Assessment, Atlanta Financial Center,
North Tower, dated October 10, 1994, prepared by SES
Environmental Services, Inc., project No. 94-50022.
5. Asbestos Inspection, dated September 20, 1993, prepared by EMCON
Southeast, Project No. 2027.001.93.
6. State of Georgia Annual Underground Storage Tank Registration
Form, dated May 13, 1996, Facility ID No. 9060438, Owner I.D. No.
7075 (2 diesel tanks).
7. Environmental Site Assessment for Overseas Partners Capital Corp.
of Atlanta Financial Center, dated July 12, 1996, prepared by ATC
Environmental, Inc., as supplemented by letter dated October 4,
1996, to Overseas Partners Capital Corp. and dated October 11,
1996, to New York Life Insurance Company.
Borrower Further represents and warrants that neither Borrower nor, to the best
knowledge or belief of Borrower, any other person has discovered any occurrence
or condition on any real property adjoining or in the vicinity of the Secured
Property that could cause the Secured Property or any part thereof to be subject
to any restrictions on the ownership, occupancy, transferability or use of the
Secured Property under any federal, state or local law, ordinance or regulation
relating to Hazardous Materials.
D. No Litigation Regarding Hazardous Materials. No litigation,
administrative enforcement actions or proceedings have been brought, or to
Borrower's best knowledge and belief, threatened nor have any settlements been
reached by or with any party or parties, public or private, in disputes in which
the presence, disposal, release or threatened release of any Hazardous Material
on, from, or under any of the Secured Property had been alleged.
2.04 Valid Organization. Good Standing and Qualification of Borrower.
Borrower is a duly and validly organized and existing corporation in good
standing under the laws of the State of Georgia and is duly licensed or
qualified and in good standing as a
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foreign corporation in all other jurisdictions where the ownership or leasing of
property or the nature of business transacted makes such qualification
necessary, and is entitled to own its properties and assets, and to carry on its
business, all as, and in the places where, such properties and assets are now
owned or operated or such business is now conducted or presently proposed to be
conducted. Borrower does not own any real property located outside of the
jurisdictions in which it is duly qualified to do business as a foreign
corporation and it is not doing business outside of such jurisdictions of a
character which would require such qualification. Borrower has made payment of
all franchise and similar taxes in the State of Georgia and in all of the
jurisdictions in which it is qualified as a foreign corporation, insofar as such
taxes are due and payable at the date of this Instrument, except for any such
taxes the validity of which is being contested in good faith and for which
proper reserves have been set aside on the books of Borrower.
2.05 Authorization: No Real Restrictions on Performance. The execution
and delivery by Borrower of this instrument and the other Loan Documents and its
compliance with the terms and conditions hereof and thereof have been duly and
validly authorized by ail necessary corporate action and the Loan Documents are
valid and enforceable obligations of Borrower in accordance with the terms
hereof and thereof. Neither the execution and delivery by Borrower of this
Instrument or any of the other Loan Documents to which it is a party nor the
consummation of the transactions contemplated herein or therein, nor compliance
with the terms and conditions hereof or thereof will, to the best of Borrower's
knowledge, (A) conflict with or result in a breach of, or constitute a default
under, any of the terms, obligations, covenants, conditions or provisions of (1)
any corporate restriction or indenture, mortgage, deed of trust, deed to secure
debt, pledge, bank loan or credit agreement, corporate charter, by-law or any
other agreement or instrument to which Borrower is now a party or by which its
properties may be bound or affected, or (2) any judgment, order, writ,
injunction, decree or demand of any court, arbitrator, grand jury or
Governmental Agency, or (B) result in the creation or imposition of any lien,
charge or encumbrance of any nature whatsoever upon any property or asset of
Borrower under the terms or provisions of any of the foregoing. Borrower is not
in default in the performance, observance or fulfillment of any of the terms,
obligations, covenants, conditions or provisions contained in any indenture or
other agreement creating, evidencing or securing indebtedness of Borrower or
pursuant to which Borrower is a party or by which Borrower or its properties may
be bound or affected.
2.06 Compliance With Laws. Borrower has, to the best of its knowledge
and belief, complied with all applicable statutes, rules, regulations, orders
and restrictions of any domestic or foreign government or any instrumentality or
agency thereof, in respect of the conduct of its business and ownership of its
properties (including, without limitation, applicable statutes, rules,
regulations, orders and restrictions relating to equal employment opportunities
or environmental standards or controls). No governmental orders, permissions,
consents, approvals or authorizations are required to be obtained and no
registrations or declarations are required to be filed in connection with the
execution and delivery or performance of this Instrument or any of the other
Loan Documents. Borrower has received no notice of violation of any applicable
zoning, land use,
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subdivision or other law applicable to the Secured Property To the best of
Borrower's knowledge and belief, there is no violation of law as to the Secured
Property, except that Borrower makes no representation as to compliance with the
Americans with Disabilities Act of 1990, as amended, or with respect to the
presence of asbestos or asbestos-containing materials in the Improvements.
2.07. Tax Status. Borrower has filed all United States income tau
returns and all state and municipal tax returns which are required to be filed,
and has paid, or made provision for the payment of, all taxes which have become
due pursuant to said returns or pursuant to any assessment received by Borrower,
except such filings and taxes, if any, as are being contested in good faith and
as to which adequate reserves have been provided. The United States income tax
liability of Borrower has been finally determined by the Internal Revenue
Service and satisfied for all taxable years up to and including the taxable year
ending December 31, 1995.
2.08 Absence of Foreign or Enemy Status. Borrower is not a "national"
of a "designated foreign country" (or a person defined as a "designated foreign
country") within the definitions in the Foreign or Cuban Assets Control
Regulations of the United States Treasury Department, 31 CFR, Subtitle B,
Chapter V, as amended, or any regulation or ruling issued thereunder.
2.09 Federal Reserve Board Regulations. Borrower does not own any
"margin security" as such term is defined in Regulation G of the Board of
Governors of the Federal Reserve System (12 CFR Part 207), as amended, except
margin securities owned or which may be acquired by Borrower which do not and
would not in the aggregate constitute a substantial part of the assets of
Borrower within the meaning of Section 207.2(i) of the aforesaid Regulation G,
and Borrower will not use any part of the proceeds from the loans to be made
under this Agreement (A) directly or indirectly, to purchase or carry any such
security or to reduce or retire any indebtedness originally incurred to purchase
any such security within the meaning of such Regulation, (B) so as to involve
Borrower in a violation of Regulation T, U or X of such Board (12 CFR Parts 220,
22 1 and 224), or (C) for any other purpose not permitted by Section 7 of the
Securities Exchange Act of 1934, as amended, or any of the rules and regulations
respecting the extension of credit promulgated thereunder.
2.10 Investment Company Act and Public Utility Holding Company Act.
Borrower is not an "investment company" or a company "controlled" by an
"investment company," within the meaning of the Investment Company Act of 1940,
as amended, and Borrower is not a "holding company" or a "subsidiary company" of
a "holding company," or an "affiliate" of a "holding company" or of a
"subsidiary company" of a "holding company," as such terms are defined in the
Public Utility Holding Company Act of 193 5, as amended.
2.11 Exempt Status of Transactions Under Securities Act and
Representations Relating Thereto. Borrower has not, either directly or through
any agent, offered all or
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any part of the loan made or to be made by Lender and secured by this Instrument
to, or solicited any offers to make all or any part of such loan from, or
otherwise approached or negotiated or communicated in respect of all or any part
of such loan with anyone other than Lender. Neither Borrower nor any agent on
its behalf will offer to obtain all or any part of such loan from, or solicit
any offers to make all or any part of such loan from, or otherwise approach or
negotiate or communicate in respect of all or any part of such loan with, any
person or persons so as thereby to bring the obtaining of such loan by Borrower
and the delivery of the Note within the registration provisions of the
Securities Act of 1933, as amended.
2.12 Employee Benefit Plans.
A. None of the employee benefit plans maintained at any time by
Borrower (herein called "Employee Benefit Plans") or the trusts created
thereunder has engaged in a prohibited transaction which could subject any such
Employee Benefit Plan or trust to a tax or penalty on prohibited transactions
imposed under internal Revenue Code Section 4975 or the Employee Retirement
Income Security Act of 1974 and the regulations thereunder (herein called
"ERISA").
B. None of the Employee Benefit Plans which are employee pension
benefit plans or the trusts created thereunder has been terminated since
September 2, 1974; nor has any such Employee Benefit Plan incurred any liability
to the Pension Benefit Guaranty Corporation established pursuant to ERISA which
would be material to Borrower, other than for required insurance premiums which
have been paid when due, or incurred any accumulated funding deficiency which
would be material to Borrower, whether or not waived; nor has there been any
reportable event, or other event or condition, which presents a risk of
termination of any such Employee Benefit Plan by such Pension Benefit Guaranty
Corporation which termination would be material to Borrower.
C. The present value of all benefits vested under the Employee
Benefit Plans which are employee pension benefit plans did not, as of the most
recent valuation date, exceed the then current value of the assets of such
Employee Benefit Plans allocable to such vested benefits by an amount that would
materially affect the financial condition of Borrower or the ability of Borrower
to perform under the Loan Documents.
D. The consummation of the loan from Lender referred to in this
Instrument, and the execution and delivery of the Note hereunder and the
performance by Borrower of its obligations under the Loan Documents, will not
involve any prohibited transaction.
E. As used in this Section 2.11, the terms "employee benefit
plans," "employee pension benefit plans," "accumulated funding deficiency,"
"reportable event," "accrued benefits," "separate account" and "multiemployer
plan" shall have the respective meanings assigned to them in ERISA, and the term
"prohibited transaction" shall have the meaning assigned to it in Internal
Revenue Code Section 4975 and ERISA.
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ARTICLE III
DEFAULTS
3.01 Events of Default. Any of the following events shall be deemed an
"Event of Default" hereunder:
A. if borrower shall fail, refuse or neglect to pay any installment of
the principal of, or interest on the Indebtedness or any other sum which is
payable hereunder as and when the same shall become due and payable as in the
Note or herein provided, within three (3) business days after Lender has given
written notice to Borrower of such default; provided, however, that Borrower
will not be entitled to any notice of default under this clause more than four
(4) times during the term of the loan secured hereby; or
B. except as provided in subparagraphs 3.01C, D, E, F, G, H and I
below, if Borrower fails to perform or observe any term, provision, covenant or
agreement in the Note, this Instrument or in any other Loan Documents (other
than those relating to satisfaction of monetary obligations) beyond the
applicable grace period therefor, or if no such grace period is applicable, if
such default has not been remedied within thirty (30) calendar days after
written notice thereof has been given by Lender to Borrower; provided, however,
that if the default is curable but is not reasonably susceptible of cure within
said thirty (30) day period, Borrower shall have ninety (90) days from the date
Lender gave such notice within which to effect a cure if Borrower commences cure
activities within such thirty (30) day period and thereafter diligently and
continuously prosecutes the same to completion and completes same within said
ninety (90) day period;
C. if any warranty, representation, certification, financial statement
or other information made or furnished at any time pursuant to the terms of this
Instrument or otherwise, by Borrower, or by any person or entity liable for the
Indebtedness in connection with the loan transaction, shall prove to be
materially false and to have been made or furnished with knowledge of the false
nature thereof or
D. if Borrower shall:
(1) apply for, consent to or acquiesce in the appointment of a
receiver, trustee or liquidator of it or of all or a substantial part of its
assets, or the Secured Property or any interest in any part thereof (the term
"acquiesce" includes, but is not limited to, the failure to file a petition or
motion to vacate or discharge any order, judgment or decree providing for such
appointment within ten (10) days after the appointment); or
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(2) commence a voluntary case or other proceeding in bankruptcy,
or admit in writing its inability to pay its debts as they come due; or
(3) make a general assignment for the benefit of creditors; or
(4) file a petition or an answer seeking reorganization,
arrangement, composition, readjustment, liquidation, dissolution, or similar
relief for itself under the present or any future federal bankruptcy act or any
other statute or law relative to bankruptcy, insolvency, or other relief for
debtors; or
(5) file an answer consent to, or default in answering, a
petition filed against reorganization or insolvency case or proceeding; or
admitting the material allegations of, or it in any bankruptcy,
E. if an order for relief shall be entered against Borrower by a court
of competent jurisdiction under any present or future bankruptcy law, which
order shall continue unstayed and in effect for any period of sixty (60)
consecutive days; or
F. if an order, judgment or decree shall be entered by any court of
competent jurisdiction, adjudicating Borrower insolvent, approving a petition
seeking reorganization or arrangement of Borrower or appointing a receiver,
trustee or liquidator of it or of all or a substantial part of its assets, and
such order, judgment or decree shall continue unstayed and in effect for any
period of sixty (60) consecutive days; or
G. if Borrower has assigned or purports to assign the whole or any
part of the rents, income or profits arising from the Secured Property, without
the prior written consent of Lender; or
H. if a Transfer not consented to by Lender shall have occurred; or
I. if any mechanic's, laborer's or materialman's lien, federal tax
lien, broker's lien or other lien not permitted hereunder and affecting the
Secured Property or any part thereof is not discharged, by payment, bonding,
order of a court of competent jurisdiction or otherwise, within twenty (20) days
after Borrower receives notice thereof from the lien or from Lender.
ARTICLE IV
REMEDIES
4.01 Acceleration. Foreclosure. etc. Upon the happening of any one or more
of the Events of Default, the entire unpaid principal balance of the
Indebtedness, interest accrued thereon, and all of the sums secured by this
Instrument, including, without limitation, the prepayment charge as provided in
Section 4.06 herein and in the Note, at
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the sole option of Lender, shall become immediately due and payable without
notice or demand, and Lender may forthwith, without further delay, undertake any
one or more of the following by itself or through its authorized representative:
A. Foreclosure. Lender shall have the right to institute an action to
foreclose this Instrument, or take such other action as may be allowed at law or
in equity, for the enforcement hereof and realization on the Secured Property or
any other security which is herein or elsewhere provided for, or proceed thereon
through power of sale or to final judgment and execution thereon for the entire
Indebtedness, with interest, at the rate specified in this Instrument to the
date of such Event of Default and thereafter at the Increased Rate, together
with all other sums secured by this Instrument, including, without limitation,
ail costs of suit, interest at the Increased Rate on any judgment obtained by
Lender from and after the date of any sale of the Secured Property (which may be
sold in one parcel or in such parcels, manner or order as Lender shall elect)
until actual payment is made of the full amount due Lender, and any reasonable
attorneys' fees for collection actually incurred at the normal and customary
hourly billing rates of the attorneys actually performing services and
disbursements, without further stay, any law, usage orcustom to the contrary
notwithstanding.
B. Partial Foreclosure. Lender shall have the right to foreclose the
lien hereof for the Indebtedness or any part thereof. It is Further agreed that
if an Event of Default shall have occurred and Lender shall not have accelerated
the Indebtedness, as an alternative to the right of foreclosure for the full
Indebtedness after acceleration thereof, Lender shall have the right to
institute partial foreclosure proceedings with respect to the portion of said
Indebtedness so in default, as if under a full foreclosure, and without
declaring the entire Indebtedness due (such proceeding being hereinafter
referred to as a "partial foreclosure"), and provided that if foreclosure sale
is made because of default of a part of the Indebtedness, such sale may be made
subject to the continuing lien of this Instrument for the unmatured part of the
Indebtedness; and it is agreed that such sale pursuant to a partial foreclosure,
if so made, shall not in any manner affect the unmatured part of the
Indebtedness, but as to such unmatured part, this Instrument and the lien hereof
shall remain in full force and effect just as though no foreclosure sale had
been made under the provisions of this subsection. Notwithstanding the filing of
any partial foreclosure or entry of a decree of sale therein, Lender may elect
at any time prior to a foreclosure sale pursuant to such decree, to discontinue
such partial foreclosure and to accelerate the Indebtedness by reason of any
uncured Event of Default(s) upon which such partial foreclosure was predicated
or by reason of any other Events of Default, and proceed with full foreclosure
proceedings. It is further agreed that several foreclosure sales may be made
pursuant to partial foreclosures without exhausting the right of full or partial
foreclosure sale for any unmatured part of the Indebtedness, it being the
purpose to provide for a partial foreclosure sale of the Indebtedness for any
matured portion of the Indebtedness without exhausting the power to foreclose
and to sell the Secured Property pursuant to any such partial foreclosure for
any other part of the Indebtedness, whether matured at the time or subsequently
maturing, and without exhausting any right of acceleration and full foreclosure.
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C. Entry. Lender personally, or by its agents or attorneys, may enter
into and upon all or any part of the Secured Property, and each and every part
thereof, and may exclude Borrower, its agents and servants wholly therefrom
without liability for trespass, damages or otherwise and Borrower agrees to
surrender possession to Lender on demand after the happening of any Event of
Default; and having and holding the same, Lender may use, operate, manage and
control the Secured Property and conduct the business thereof, either personally
or by its superintendents, managers, agents, servants, attorneys or receivers;
and upon each such entry, Lender, at the expense of Borrower from time to time,
either by purchase, repairs or construction, may maintain and restore the
Secured Property, may complete the construction of the Improvements and in the
course of such completion may make such changes in the contemplated or completed
buildings, structures and improvements as it may deem desirable and may insure
the same; and likewise, from time to time, at the expense of Borrower, Lender
may make all necessary or proper repairs, renewals and replacements and such
alterations, additions, betterments and improvements thereto and thereon as it
may deem advisable; and in every such case Lender shall have the right to manage
and operate the Secured Property and to carry on the business thereof and
exercise all rights and powers of Borrower with respect thereto either in the
name of Borrower or otherwise as it shall deem best.
D. Collection of Rents, Etc. Lender shall be entitled to collect and
receive all earnings, revenues, rents, issues, profits and income derived from
the Secured Property and every part thereof, and after deducting the expenses of
conducting the business thereof and of all maintenance, repairs, renewals,
replacements, alterations, additions, betterments and improvements and amounts
necessary to pay for taxes, assessments, insurance and liens or other charges
upon the Secured Property or any part thereof, as well as just and reasonable
compensation for the services of Lender and its authorized representative and
for all attorneys, counsel, agents, clerks, servants, and other employees by it
properly engaged and employed, Lender shall apply the moneys arising as
aforesaid, first, to the payment of the unpaid Indebtedness in inverse order of
maturity and then to the payment of any other sums required to be paid by
Borrower hereunder.
E. Receivership. Lender shall have the right to have a receiver
appointed to enter into possession of the Secured Property, collect the
earnings, revenues, rents, issues, profits and income therefrom and apply the
same as the court may direct. Lender shall benefited to the appointment of a
receiver as a matter of right without notice and without the necessity of
proving either the inadequacy of the security or the insolvency of Borrower or
any other person who may be legally or equitably liable to pay money secured by
this Instrument and Borrower and each such person shall be deemed to have waived
such proof and to have consented to the appointment of such receiver. Should
Lender, its authorized representative or any receiver collect earnings,
revenues, rents, issues, profits or income from the Secured Property, the moneys
so collected shall not be substituted for payment of the Indebtedness nor can
they be used to cure an Event of Default, without the prior written consent of
Lender. Lender shall be Liable to account only for earnings, revenues, rents,
issues, profits and income actually received by Lender.
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F. Specific Performance. Lender may institute an action for specific
performance of any covenant contained herein or in aid of the execution of any
power herein granted.
G. Non-Judicial Sale. Lender may declare the entire Indebtedness
immediately due, payable and collectible, WITHOUT NOTICE TO BORROWER regardless
of stated maturity, and, in that event, the entire Indebtedness shall become
immediately due, payable and collectible; and, thereupon, Lender may sell and
dispose of the Secured Property at public auction, at the usual place for
conducting sales at the courthouse in the county where the Secured Property or
any part thereof may be, to the highest bidder for cash, first advertising the
date, terms and place of such sale by publishing a notice thereof once a week
for four consecutive weeks in a newspaper in which sheriffs advertisements are
published in said county, ALL OTHER NOTICE AND RIGHT TO HEARING BEING HEREBY
WAIVED BY BORROWER; and Lender may thereupon execute and deliver to the
purchaser at said sale a sufficient conveyance of the Secured Property in fee
simple, which conveyance may contain recitals as to the happening of the default
upon which the execution of the power of sale herein granted depends, and said
recitals shall be presumptive evidence that all preliminary acts prerequisite to
said sale and deed were in all things duly complied with; and Lender, its
agents, representatives, successors or assigns, may bid and purchase at such
sale, and Borrower hereby constitutes and appoints Lender, or its assigns, agent
and attorney-in-fact to make such recitals, sale and conveyance, and all of the
acts of such attorney-in-fact are hereby ratified, and Borrower agrees that such
recitals shall be binding and conclusive upon Borrower and that the conveyance
to be made by Lender, or its assigns (and in the event of a deed in lieu of
foreclosure, then as to such conveyance, shall be effectual to bar all right,
title and interest, equity of redemption, including all statutory redemption,
homestead, dower, courtesy and all other exemptions of Borrower, or its
successors in interest, in and to the Secured Property; and Lender, or its
assigns, shall collect the proceeds of such sale, reserving therefrom all unpaid
Indebtedness with interest then due thereon, and all amounts advanced by Lender
for taxes, assessments, fire insurance premiums and other charges, with interest
at the Increased Rate thereon from date of payment, together with all costs and
charges for advertising, and commissions for selling the Secured Property, and
reasonable attorneys' fees, and pay over any surplus to Borrower (in the event
of deficiency, Borrower shall immediately on demand from Lender pay over to
Lender, or its nominee, such deficiency, to the extent provided herein); and
Borrower agrees that possession of the Secured Property during the existence of
the Indebtedness by Borrower, or any person claiming under Borrower, shall be
that of tenant under Lender, or its assigns, and, in case of a sale, as herein
provided, Borrower or any person in possession under Borrower shall then become
and be tenants holding over, and shall forthwith deliver possession to the
purchaser at such sale, or be summarily dispossessed in accordance with the
provisions of law applicable to tenants holding over; the power and agency
hereby granted are coupled with an interest and are irrevocable by death or
otherwise, and are in addition to any and all other remedies which Lender may
have at law or in equity.
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In case of any sale under this Instrument by virtue of the exercise of
the power herein granted, or pursuant to any order in any judicial proceedings
or otherwise, at the election of Lender, the Premises or any part thereof may be
sold in one parcel and as an entirety, or in such parcels, manner or order as
Lender in its sole discretion may elect, and one or more exercises of the powers
herein granted shall not extinguish or exhaust the power unless the entire
Premises are sold or the Indebtedness paid in full. Lender may bid at any such
sale and if lender is the successful bidder, Lender may credit the Indebtedness
in satisfaction of the amount of such bid.
BORROWER HEREBY WAIVES ANY RIGHT BORROWER MAY HAVE UNDER THE CONSTITUTION OR THE
LAWS OF THE STATE OF GEORGIA OR THE CONSTITUTION OR THE LAWS OF THE UNITED
STATES OF AMERICA TO NOTICE, OTHER THAN EXPRESSLY PROVIDED FOR IN THIS
INSTRUMENT, OR TO A JUDICIAL HEARING PRIOR TO THE EXERCISE OF ANY RIGHT OR
REMEDY PROVIDED BY THIS INSTRUMENT TO LENDER AND BORROWER WAIVES BORROWER'S
RIGHTS, IF ANY, TO SET ASIDE OR INVALIDATE ANY SALE DULY CONSUMMATED IN
ACCORDANCE WITH THE PROVISIONS OF THIS INSTRUMENT ON THE GROUND (IF SUCH BE THE
CASE) THAT THE SALE WAS CONSUMMATED WITHOUT A PRIOR JUDICIAL HEARING. ALL
WAIVERS BY BORROWER IN THIS PARAGRAPH HAVE BEEN MADE VOLUNTARILY, INTELLIGENTLY
AND KNOWINGLY, AFTER BORROWER HAS BY BORROWER'S ATTORNEY BEEN FIRST APPRISED OF
AND COUNSELED WITH RESPECT TO BORROWER'S POSSIBLE ALTERNATIVE RIGHTS.
-------------------
Borrower's Initials
H. UCC Remedies. Lender may exercise the remedies as set forth in
Section 1.10D(3) hereof.
4.02 No Election of Remedies. Lender by itself or through its authorized
representative shall be entitled in its sole discretion to exercise all or any
of the rights and remedies herein or in the Loan Documents provided, or which
may be provided by statute, law, equity, or otherwise in such order and manner
as Lender shall elect without impairing Lender's lien in, or rights to, any of
such Loan Documents and without affecting the liability of any person, firm,
corporation or other entity for the sums secured by the Loan Documents.
4.03 Lender's Right to Release. Etc.. Lender, in its sole discretion, shall
have the right to release for such consideration as Lender may require, any
portion of the Secured Property without, as to the remainder of the Secured
Property, in any way
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impairing or affecting the lien of this Instrument, or the priority thereof, or
improving the position of any subordinate lienholder with respect thereto,
except to the extent that the Indebtedness shall have been reduced by the actual
monetary consideration, if any, received by Lender for such release; and Lender
shall have the right to accept by assignment or pledge any other property in
place thereof as Lender may require without being accountable for so doing to
any other lien or. To the extent permitted by law, neither Borrower nor the
holder of any lien or encumbrance affecting the Secured Property or any part
thereof shall have the right to require Lender to marshal assets.
4.04 Lender's Right to Remedy Defaults, Etc.. Lender shall, by itself or
through its authorized representative have the right to remedy any Event of
Default or appear in, defend or bring any action or proceeding to protect its
interest in the Secured Property or to foreclose this Instrument or collect the
Indebtedness and the costs and expenses thereof (including reasonable attorneys'
fees actually incurred at the normal and customary hourly billing rates of the
attorneys actually performing services, to the extent permitted by law), which
shall be paid by Borrower to Lender upon demand with interest at the Increased
Rate. All such costs and expenses incurred by Lender and its authorized
representative, and any other costs incurred by Lender and it authorized
representatives pursuant to this Instrument, with interest as provided in this
Instrument, shall be secured by this Instrument.
4.05 Waivers. Borrower hereby waives and releases (A) all benefits that
might accrue to Borrower by virtue of any present or future laws excepting the
Secured Property, or any part of the proceeds arising from any sale thereof,
from attachment, levy or sale under execution from civil process, or extension
of time for payment; (B) ail benefits that might accrue to Borrower from
requiring valuation or appraisal of any part of the Secured Property levied or
sold on execution of any judgment recovered for the Indebtedness; (C) all
notices not herein or elsewhere specifically required of Borrower's default or
of Lender's exercise, or election to exercise, any option under any of the Loan
Documents; and (D) any right of redemption to the extent that Borrower may
lawfully waive same. At no time will Borrower insist upon, or plead, or in any
manner whatever, claim or take any benefit or advantage of any stay or extension
or moratorium law and any exemption from execution or sale of the Secured
Property or any part thereof, whenever enacted, now or at any time hereafter in
force, which may affect the covenants and terms of performance of this
Instrument; nor claim, take or insist upon any benefit or advantage of any law
now or hereafter in force providing for the valuation or appraisal of the
Secured Property or any part thereof, prior to any sale or sales thereof which
may be made pursuant to any provision herein, or pursuant to the decree,
judgment or order of any court of competent jurisdiction; nor after any such
sale or sales, and to the extent permitted by law, claim or exercise any right
under any statute heretofore or hereafter enacted to redeem the property so
sold, or any part thereof, and Borrower hereby expressly waives all benefits or
advantages of any such law or laws, and covenants not to hinder, delay or impede
the execution of any power herein granted or delegated to Lender, but to suffer
and permit the execution of every power as though no such law or laws had been
made or enacted. In case of a sale of the Secured Property, the same may be sold
in
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one parcel, as an entirety, or in such parcels, manner or order as Lender in its
sole discretion may decide, any provision of law to the contrary
notwithstanding.
4.06 Prepayment Charge. Borrower hereby agrees to pay the charge provided
in the Note for prepayment of the Indebtedness, if for any reason any of said
Indebtedness shall be paid prior to the stated maturity date thereof, even if
and notwithstanding that an Event of Default shall have occurred and Lender, by
reason thereof, shall have declared said Indebtedness due and payable, and
whether or not said payment is made prior to or at any sale held under or by
virtue of this Article IV. Borrower acknowledges that Lender, in making the loan
evidenced by the Note and entering into this Instrument, is relying on
Borrower's credit worthiness and its agreement to repay the Indebtedness in
strict accordance with the terms set forth in the Note. Borrower acknowledges
that Lender would not make the loan without full and complete assurance by
Borrower of its agreement to make regular payments of principal and interest
under the Note and its further agreement not to prepay all or any part of the
principal of the Note prior to the final maturity date thereof, except on the
terms expressly set forth herein and in the Note. Therefore, any prepayment of
the Note, whether occurring as a voluntary prepayment by Borrower or occurring
upon an acceleration of the principal balance of the Note by Lender on account
of any default by Borrower (including, but not limited to, the making or
suffering by Borrower, of any transfer or disposition of all or any portion of
the Secured Property or any interest therein as prohibited by Section 1.11 of
this Instrument) will prejudice Lender's ability to meet its obligations and to
earn the return on the funds advanced to Borrower, which Lender intended and
expected to earn when it agreed to make the subject loan and will also result in
other loss and additional expenses to Lender. Accordingly, in recognition of the
foregoing and in consideration of Lender making the loan secured by this
Instrument at the interest rate and for the term set forth in the Note, Borrower
hereby expressly (A) waives any and all rights it may have under applicable law
to prepay without charge or premium all or any part of the Note, either
voluntarily or upon an acceleration of the maturity date of the Note on account
of any default of Borrower (including, but not limited to, the making or
suffering by Borrower of any transfer or disposition prohibited by Section 1.11
of this Instrument) and (B) agrees that if, for any reason, whether due to the
voluntary acceptance by Lender of a prepayment tendered by Borrower or the
acceleration by Lender of the maturity date of the Note, as aforesaid, on
account of any such default by Borrower, a prepayment of all or any part of the
principal of the Note is made by or on behalf of Borrower, or is otherwise made
or occurs in connection with any reinstatement of the Loan Documents under any
foreclosure proceedings, or any right of redemption exercised by Borrower or any
other party having the right to redeem or to prevent any foreclosure of this
Instrument, or upon the consummation of any foreclosure sale, then Borrower or
any other party making any such prepayment shall be obligated to pay,
concurrently therewith, the prepayment charge set forth in the Note, and the
payment of such premium shall be a condition to the making of such prepayment
and shall be secured by this Instrument. Such prepayment charge shall be paid
without prejudice to the right of Lender to collect any other amounts provided
to be paid or to declare a default hereunder. Nothing herein shall be construed
as permitting any partial prepayment except with Lender's prior written consent
thereto obtained in each
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instance. Notwithstanding anything contained in this Section 4.06 to the
contrary, no prepayment charge or other fee shall be payable if the entire
outstanding principal balance of the Note is paid (i) within ninety (90) days
prior to the end of the term of the Loan as provided in the Note, or (ii) as a
result of application of proceeds of a condemnation or destruction of the
Secured Property, or (iii) as a result of an acceleration of the indebtedness
pursuant to Section 1.02(F).
ARTICLE V
MISCELLANEOUS
5.01 Non-Waiver. The failure of Lender to insist upon strict performance of
any term of this Instrument shall not be deemed to be a waiver of any term of
this Instrument. Borrower shall not be relieved of its obligation to pay the
Indebtedness at any time and in the manner provided for its payment in the Note
and this Instrument by reason of (A) a failure by Lender to comply with any
request of Borrower to take any action to foreclose this Instrument or otherwise
enforce any of the provisions of this Instrument or of the Note or any other
Loan Document, (B) the release, regardless of consideration, of the whole or any
part of the Secured Property or any other security for the Indebtedness, or (C)
any agreement or stipulation between Lender and any subsequent owner or owners
of the Secured Property or other person extending the time of payment or
otherwise modifying or supplementing the terms of the Note, this Instrument or
any Loan Document securing or guaranteeing the Indebtedness or any portion
thereof, without first having obtained the consent of Borrower and, in the
latter event, Borrower shall continue to be obligated to pay the Indebtedness at
the time and in the manner provided in the Note and this Instrument, as so
extended, modified and supplemented, unless expressly released and discharged by
Lender. Regardless of consideration, and without the necessity for any notice to
or consent by the holder of any subordinate lien, encumbrance, right, title or
interest in or to the Secured Property, Lender may release any person at any
time liable for the payment of the Indebtedness or any portion thereof or any
part of the security held for the Indebtedness and may extend the time of
payment or otherwise modify the terms of any Loan Documents, including without
limitation, a modification of the interest rate payable on the principal balance
of the Note, without in any manner impairing or affecting any of the Loan
Documents or the lien thereof or the priority of this Instrument, as so extended
and modified, as security for the Indebtedness over any such subordinate lien,
encumbrance, right, title or interest. Lender may resort for the payment of the
Indebtedness to any other security held by Lender in such order and manner as
Lender or its authorized representative, in its discretion, may elect. Lender
may take action to recover the Indebtedness, or any portion thereof, or to
enforce any covenant of this Instrument without prejudice to the right of Lender
thereafter to foreclose this Instrument. Lender shall not be limited exclusively
to the rights and remedies stated in this instrument but shall be entitled to
every additional right and remedy now or hereafter afforded by law. The rights
of Lender under this Instrument shall be separate, distinct and cumulative and
none shall be given effect to the exclusion of the others. No act of Lender
shall be
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construed as an election to proceed under any one provision of this instrument
to the exclusion of any other provision.
5.02 Sole Discretion of Lender.
A. Wherever, pursuant to this Instrument, Lender's consent or approval
is required, the decision as to whether or not to consent or approve shall be in
the sole discretion of Lender and Lender's decision shall be final and
conclusive, except where this Instrument expressly provides to the contrary. If
Borrower shall seek the approval by or consent of Lender under this Instrument
and Lender shall fail or refuse to give such consent or approval, Borrower shall
not be entitled to any damages for any withholding of such approval or consent
by Lender, it being intended that Borrower's sole remedy shall be for injunctive
or declaratory relief, which remedy shall be available only in those cases where
Lender has expressly agreed not to unreasonably withhold its consent or
approval, which shall be determined by binding arbitration as provided in
Section 5.02(B) below.
B. Under circumstances for which arbitration is specifically provided
for under the terms of Section 5.02A of this Instrument, the party desiring
arbitration shall give notice to that effect to the other party and shall in
such notice appoint a person as arbitrator on its behalf. Within ten (10) days
after its receipt of such notice, the other party by notice to the original
party shall appoint a second person as arbitrator on its behalf. The arbitrators
thus appointed shall appoint a third person, and the three arbitrators shall, as
promptly as reasonably possible (but in no event later than thirty (30) days
after their appointment) determine the matter in dispute, provided, however,
that: (i) if the second arbitrator shall not have been appointed within the ten
(10) day period, as aforesaid, the first arbitrator shall proceed to determine
the matter in dispute and shall render his or her decision and award in writing
within thirty (30) days after the expiration of said ten (10) day period; and
(ii) if the two arbitrators appointed by the parties shall be unable to agree,
within ten (10) days after the appointment of the second arbitrator, upon the
appointment of a third arbitrator, they shall give written notice to the parties
of such failure to agree, and if the parties fail to agree upon the selection of
the third arbitrator within ten (10) days after receipt of the notice of such
failure from the two appointed arbitrators, then within ten (10) days thereafter
either of the parties, upon notice to the other party, may request such
appointment by the American Arbitration Association (or any successor
organization) or in its absence, refusal, failure or inability to act, may apply
to the Chief Judge of the Fulton County Superior Court for a Court appointment
of such arbitrator. Each arbitrator shall be a qualified and impartial person
who shall have had at least five (5) years experience in a real estate
professional capacity in the metropolitan Atlanta, Georgia area in a calling
directly connected with the matter in dispute. The arbitration shall be
conducted, to the extent consistent with this Section, in accordance with the
then prevailing rules of the American Arbitration Association (or any successor
organization). The arbitrators, if more than one, shall render their decision in
writing, upon the concurrence of at least two of their number, within thirty
(30) days after the appointment of the third arbitrator. Such decision (or the
decision of the single arbitrator
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as provided above) shall be final, conclusive and binding on the parties, and
counterpart copies thereof shall be delivered to each of the parties. In
rendering such decision, (I) the arbitrator(s) shall have the right to award the
costs of such arbitration, including reasonable attorney's fees, to either
party, and (ii) the arbitrator(s) shall not add to. subtract from or otherwise
modify the provisions of this Instrument. Judgment may be had on the decision of
the arbitrator(s) so rendered in any court of competent jurisdiction.
5.03 Recovery of Sums Required To Be Paid. Lender shall have the right from
time to time to take action to recover any sum or sums which constitute a part
of the Indebtedness as such sums shall become due, without regard to whether or
not the balance of the Indebtedness shall be due, and without prejudice to the
right of lender thereafter to bring an action of foreclosure or any other action
for an Event of Default(s) by Borrower existing at the time such earlier action
was commenced.
5.04 Legal Tender. All payments of principal, interest and any and all
other payments required or provided herein shall be paid in lawful money of the
United States of America which shall be legal tender in payment of all debts and
dues, public and private, at the time of payment, at the office of Lender or its
authorized representative or at such other place either within or without the
State of Georgia as Lender may from time to time designate.
5.05 No Merger. If both the Lessor's and Lessee's estates under any Lease
or any portion thereof which constitutes a part of the Secured Property shall at
any time become vested in one owner, this Instrument and the security title
conveyed hereby shall not be destroyed or terminated by the application of the
doctrine of merger and in such event, Lender shall continue to have and enjoy
all of the rights and privileges of lender as to the separate estates. In
addition, upon the foreclosure of the security title conveyed by this Instrument
on the Secured Property pursuant to the provisions hereof, any Leases or
subleases then existing and created by Borrower shall not be destroyed or
terminated by application of the law of merger or as a matter of law or as a
result of such foreclosure unless Lender or any purchaser at any such
foreclosure sale shall so elect. No act by or on behalf of Lender or any such
purchaser shall constitute a termination of any Lease or sublease unless Lender
or such purchaser shall give written notice thereof to such lessee or sublessee.
5.06 Discontinuance of Actions. In case Lender shall have proceeded to
enforce any right under this Instrument by foreclosure, sale or entry or
otherwise, and such proceedings shall have been discontinued or abandoned for
any reason or shall have been determined adversely, then, in every such case,
Borrower and Lender shall be restored to their former positions and rights
hereunder with respect to the Secured Property which shall remain subject to the
security title, lien and security interest of this Instrument.
5.07 Headings. The headings of the sections, paragraphs and subdivisions of
this Instrument are for the convenience of reference only, are not to be
considered a part hereof and shall not limit or otherwise affect any of the
terms hereof.
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5.08 Notice to Parties. All notices and demands hereunder shall be in
writing and shall be deemed to have been sufficiently given or served for all
purposes when presented personally or sent by certified or registered mail with
return receipt requested or generally recognized overnight delivery service,
addressed to the parties at the addresses stated below, or to such other party
or at such other address as either party may hereafter notify the other in
writing as aforesaid:
Borrower: OVERSEAS PARTNERS (AFC), INC.
115 Perimeter Center Place, Suite 940
Atlanta, Georgia 30346
Attn: Legal Department
with a copy to: Troutman Sanders, LLP
NationsBank Plaza, 600 Peachtree Street, N.E.,
Suite 5200
Atlanta, Georgia 30308-2216
Attn: James W. Addison, Esq.
with a courtesy copy to: Overseas Partners Capital Corp.
Craig Appin House
P.O. Box HM1581
8 Wesley Street
Hamilton HM GX
Bermuda
Attn: Thomas E. Butler, Esq.
Lender: NEW YORK LIFE INSURANCE COMPANY
51 Madison Avenue
New York, New York 10010
Attn: Senior Vice President
Mortgage Finance Dept.
with a copy to: Alston & Bird
One Atlantic Center
1201 West Peachtree Street
Atlanta, Georgia 30309-3424
Attn: Glenda Gall Bugg, Esq.
Service of any such notice or demand so made shall be deemed effective on the
day of actual delivery as shown by the addressee's return receipt or the
expiration of forty-eight (48) hours after the date sent by generally recognized
overnight delivery service or mailed, whichever is the earlier in time, except
that service of any notice of default or notice of sale provided or required by
law shall, if mailed, be deemed effective on the date of mailing.
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5.09 Non-Recourse. If an Event of Default has occurred, Lender or its
authorized representative shall have all rights reserved in the Note, this
Instrument and every other Loan Document and shall have full recourse to the
Secured Property and to the other collateral given by Borrower to secure the
Note, provided, however, that any judgment obtained by Lender in any proceeding
to enforce such rights shall be enforced only against the Secured Property and
such other collateral and Borrower shall have no personal liability under any
Loan Document except as hereinafter expressly provided. Notwithstanding the
foregoing, Lender or its authorized representative shall not in any way be
prohibited from naming Borrower or any of its successors or assigns or any
person holding under or through them as parties to any actions, suits or other
proceedings initiated by Lender or its authorized representative to enforce such
rights or to foreclose its security title and lien or otherwise realize upon any
other lien or security interest created in any other collateral given to secure
the payment of the Indebtedness. The foregoing restriction shall not apply to,
and Borrower shall be personally liable for, any losses, damages, costs and
expenses incurred by Lender and its authorized representative as a result of (A)
any material misstatement of fact (1) made by Borrower or any person or entity
constituting Borrower to induce Lender to advance the principal amount evidenced
hereby or (2) contained in any Loan Document, (B) fraud committed by Borrower or
any person or entity constituting Borrower, (C) misapplication of insurance
proceeds, condemnation awards, trust funds or Rents by Borrower or Borrower's
agents or Borrower's authorized representatives, (D) breach of any
representation or warranty contained in subsections 2.03C and D hereof, (E)
default with respect to any covenant contained in Section 1.05 hereof, (F) any
default with respect to Borrower's obligations to pay taxes and insurance
premiums pursuant to Section 1.02 hereof, or (G) any loss, damage, expense or
liability on the part of Lender and its authorized representative (including
without limitation, reasonable attorneys fees actually incurred at the normal
and customary hourly billing rates of the attorneys actually performing
services, and disbursements) arising from, in respect of, as a consequence of,
or in connection with any of the following: (1) the existence of any
circumstance or the occurrence of any action described in clause (I) of
subsection 1.05 hereof (2) claims asserted by any person or entity (including,
without limitation, any governmental agency or quasi-governmental authority,
board, bureau, commission, department, instrumentality or public body, court, or
administrative tribunal), in connection with or in any way arising out of the
presence, storage, use disposal, generation, transportation, or treatment of any
Hazardous Material on, in or under the Secured Property; (3) the violation or
claimed violation of any Hazardous Materials Laws in regard to the Secured
Property, whether such violation or claimed violation occurred prior to or after
the date of this Instrument and regardless of whether such violation occurred
prior to or after the time that Borrower became owner of the Secured Property,
but only to the extent such violation or claimed violation relates to or arises
or occurs prior to or during ownership or operation of the Secured Property by
Borrower or as a result of the acts or omissions of Borrower, Borrower's
affiliates, Borrower's agents, or the authorized representatives of Borrower or
Borrower's affiliates; (4) the preparation of an environmental audit on the
Secured Property, whether conducted or authorized by Borrower, Lender, or a
third party or the implementation or any
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environmental audit's recommendations or (5) all agreements and indemnification
obligations of Borrower under that certain Environmental Indemnity Agreement of
even date herewith in favor of Lender.
5.10 Suuccessors and Assigns Included In Parties. Subject to the provisions
of Section 1.11, whenever in the Instrument one of the parties hereto is named
or referred to, the heirs, legal representatives, successors and assigns of such
party shall be included and all covenants and agreements contained in this
Instrument by or on behalf of Borrower or by or on behalf of Lender shall bind
and inure to the benefit of their respective heirs, legal representatives,
successors and assigns, whether so expressed or not. Lender shall have the right
at any time and without requiring the consent of the Borrower to appoint and
utilize a "servicing agent" or "loan correspondent" for purpose of servicing
this Loan. Lender agrees to so notify Borrower of the appointment of any such
directives and requests of such authorized representative as though promulgated
directly by Lender.
5.11 Number and Gender. Whenever the singular or plural number, masculine
or feminine or neuter gender is used herein, it shall equally include the other.
5.12 Changes and Modifications. This instrument cannot be changed except by
an agreement in writing, signed by the party against whom enforcement of any
change or modification is sought.
5.13 Applicable Law. This Instrument according to the laws of the State of
Georgia.
5.14 Invalid Provisions to Affect No Others. The unenforceability or
invalidity of any provision or provisions of this Instrument as to any persons
or circumstances shall not render that provision or those provisions
unenforceable or invalid as to any other persons or circumstances, and all
provisions hereof, in all other respects, shall remain valid and enforceable.
5.15 Usury Savings Clause. It is the intention of Borrower and Lender to
conform strictly to the usury laws now or hereafter in force in the State of
Georgia and any interest payable under the Note, this Instrument, or any of the
other Loan Documents executed by Borrower, to the extent that any sums secured
hereby or the advancing of such sums by Lender shall not be exempt from such
laws, shall be subject to reduction to the amount equal to the maximum
non-usurious amount allowed under the usury laws of Georgia as now or hereafter
construed by the courts having jurisdiction over such matters. In the event the
maturity of the Note is accelerated by reason of any provision of this
Instrument including, without limitation, an election by Lender resulting from
an Event of Default (or an event permitting acceleration) under this Instrument
or any other Loan Documents, voluntary prepayment of the Note, or otherwise,
then earned interest may never include more than the maximum amount permitted by
law, computed from the dates of each advance of the Indebtedness until payment,
and any interest in excess of the maximum amount permitted by law shall be
canceled automatically and, if theretofore
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paid, shall at the option of Lender either be rebated to Borrower or credited on
the principal amount of the Note or if all principal has been repaid, then the
excess shall be rebated to Borrower. The aggregate of all interest (whether
designated as interest, service charges, points or otherwise) contracted for,
chargeable, or receivable under the Note, this Instrument, or any other Loan
Document shall under no circumstances exceed the maximum legal rates upon the
unpaid principal balance of the Note remaining unpaid From time to time. In the
event such interest does exceed the maximum legal rate, it shall be deemed a
mistake and such excess shall be canceled automatically and if theretofore paid.
rebated to Borrower or credited on the principal amount of the Note, or if the
Note has been repaid, then such excess shall be rebated to Borrower.
5.16 No Statute of Limitations The pleadings of any statute of limitations
as a defense to any and all obligations secured by this Instrument are hereby
waived to the full extent permissible by law.
5.17 Late Charges. In the event that any installment of principal,
interest or escrow deposit shall become overdue, a "late charge" of four cents
($.04) for each dollar ($1.00), or part thereof so overdue, may be charged to
Borrower by Lender for the purpose of defraying Lender's expenses incident to
handling such delinquent payment. This charge shall be in addition to, and not
in lieu of, any other remedy Lender may have and is in addition to any
reasonable fees and charges of any agents or attorneys which Lender is entitled
to employ on any default hereunder whether authorized herein or by law Such
"late charges", if not previously paid, shall, at the option offender, be added
to and become part of the succeeding monthly payment to be made under the Note
and secured by this Instrument.
5.18 Time of Essence. Borrower agrees that where, by the terms of this
Instrument, the Note or any other Loan Documents, a day is named or a time is
fixed for the payment of any sum of money or the performance of any agreement,
the day and/or time stated enters into the consideration and is of the essence
of the whole contract. Time shall be of the essence with respect to Lender's
obligations under Section 1.08(E) hereof as to approval rights and with respect
to the arbitration provisions section 5.02.
5.19 Continuing Effectiveness. This Instrument shall cover any and all
advances made pursuant to the Loan Documents, rearrangements and renewals of the
Indebtedness and all extensions in the time of payment thereof, whether such
advances, extensions or renewals are evidenced by new promissory notes or other
instruments hereafter executed and irrespective of whether filed or recorded.
Likewise, the execution of this Instrument shall not impair or affect any other
security which may be given to secure the payment of the Indebtedness, and all
such additional security shall be considered as cumulative. The taking of
additional security, execution of partial releases of the security, or any
extension of time of payment of the Indebtedness shall not diminish the force,
effect or lien of this Instrument and shall not affect or impair the liability
of any maker, surety or endorser for the payment of the Indebtedness.
[Signatures Begin on Next Page]
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[SIGNATURE PAGE TO DEED TO SECURE DEBT, ASSIGNMENT OF LEASES AND RENTS AND
SECURITY AGREEMENT]
IN WITNESS WHEREOF, Borrower has executed this Instrument under seal as of
the date and year first above written.
BORROWER:
OVERSEAS PARTNERS (AFC), INC.
Signed, sealed and delivered a Georgia corporation
in the presence of:
/s/ By: /s/ Bruce M. Barone
- --------------------------- ---------------------------
Unofficial Witness
Title: President & CEO
/s/ ------------------------
- ---------------------------
Notary Public
Attest: /s/ Elise R. Kitchens
(NOTARY SEAL) -----------------------
Title: Paralegal
My Commission Expires: ------------------------
(Corporate Seal)
Aug. 2000
- ---------------------------
<PAGE> 56
LEGAL DESCRIPTION OF LAND
PHASE I
ALL THAT TRACT OR PARCEL OF LAND lying and being in Land Lots 45 and 62, 17th
District, City of Atlanta, Fulton County, Georgia and being more particularly
described as follows:
TO FIND THE TRUE POINT OF BEGINNING, begin at the point formed by the
intersection of the northernmost right-of-way line of Highland Drive (a 50-foot
right-of-way with the easternmost right-of-way line of Peachtree Road (a
variable right-of-way being 80 feet at this point) and proceed thence in a
northerly direction along the aforesaid easternmost right-of-way line, following
the curvature thereof, a distance of 365.1 feet to an iron pin which is THE TRUE
POINT OF BEGINNING.
FROM THE TRUE POINT OF BEGINNING THUS ESTABLISHED proceed thence along the
aforesaid easternmost right-of-way line north 13(degree)43'08" east a distance
of 37.39 feet to a point on the aforesaid easternmost right-of-way line; proceed
thence along the aforesaid easternmost right-of-way line along an arc of a curve
to the right, an arc distance of 179.12 feet to a point, said arc being
subtended by a chord 178.99 feet in length and bearing north 20(degree)26'46"
east; proceed thence along the aforesaid easternmost right-of-way line north
26(degree)16'11" east a distance of 48.21 feet to a point on the aforesaid
easternmost right-of-way line; proceed thence along the aforesaid easternmost
right-of-way line north 28(degree)17'14" east 48.18 feet to a point on the
aforesaid easternmost right-of-way line; proceed thence along the aforesaid
easternmost right-of-way line north 30(degree)11'09" east a distance of 48.15
feet to a point on the aforesaid easternmost right-of-way line; proceed thence
north 32(degree)20'44" east a distance of 57.74 feet to a point on the aforesaid
easternmost right-of-way line; proceed thence along the aforesaid easternmost
right-of-way line north 55(degree)03'02" east a distance of 8.44 feet to a point
on the aforesaid easternmost right-of-way line; proceed thence along an arc of a
curve to the left, departing from the aforesaid easternmost right-of-way line,
an arc distance of 178.88 feet, said arc being subtended by a chord 178.87 feet
in length and bearing south 32(degree)44'02" east; proceed thence along an arc
of a curve to the left, an arc distance of 23.09 feet to a point, said arc being
subtended by a chord 23.09 feet in length and bearing south 31(degree)15'01"
east; proceed thence south 31(degree)11'25" west, a distance of 26.49 feet to a
point; proceed thence south 81(degree)18'35" east, a distance of 35.04 feet to a
point; proceed thence south 14(degree)08'05" east, a distance of 140.56 feet to
a point; proceed thence south 81(degree)21'18" east, a distance of 0.36 feet to
a point; proceed thence north 31(degree)11'25" east, a distance of 366.62 feet
to a point; proceed thence south 74(degree)31'03" east, a distance of 10.04 feet
to a point; proceed thence north 13(degree)51'45" west, a distance of 261.95
feet to a point; proceed thence north 48(degree)03'44" west, a distance of 95.71
feet to a point located on the aforesaid easternmost right-of-way line of
Peachtree Road; proceed thence along the aforesaid easternmost right-of-way line
north 39(degree)15'08" east, a distance of 142.28 feet to a point; proceed
thence south 13(degree)51'45" east, a distance of 1,104.35 feet to a point
located on the Land Lot line common to Land Lots 45 and 46 of the 17th District
of Fulton County, Georgia; proceed thence along the said common Land
<PAGE> 57
Lot line north 89(degree)37'06" west, a distance of 363.25 feet; proceed
thence, departing from said common Land Lot line, north
12(degree)49'09" west, a distance of 218.41 feet to a point; proceed thence
north 79(degree)10'45" west, a distance of 356.72 feet to a point located on
the aforesaid easternmost right-of-way line of Peachtree Road, said point being
the TRUE POINT OF BEGINNING, said tract or parcel of land being more
particularly shown as "Phase I" on that certain survey by ALTA Surveying
bearing the seal and certification of Michael F. Lawler, Georgia Registered
Land Surveyor No. 1946, prepared for Overseas Partners (APC), Inc., New York
Life Insurance Company, California Public Employee Retirement System and
Chicago Title Insurance Company, dated August 5, 1995, last revised October 14,
1996, and bearing file no. 96144, which survey is incorporated herein by this
reference.
LESS AND EXCEPT that portion of the above property conveyed by the following:
(1) Limited Warranty Deed from R-H Building Partners, Ltd., a Georgia limited
partnership, as to an undivided 50% interest and The Mutual Life Insurance
Company of New York a New York corporation, as to an undivided 50% interest,
together doing business as Atlanta Financial Center Associates, a Georgia Joint
Venture to The Department of Transportation of the State of Georgia, dated
December 22, 1986, filed for record December 23, 1986 at 1:41 p.m., recorded in
Deed Book 10513, Page 108, Records of Fulton County, Georgia
TOGETHER WITH all easements appurtenant to the above property created by the
following:
(a) Parking Deck and Easement Agreement by and among Michael C. Carlos, George
C. Carlos, Andrew C. Carlos, and R-H Building Partners, Ltd., dated July 15,
1981, recorded in Deed Book 7903, Page 165, aforesaid Records; as amended by
that certain Amendment of Parking Deck and Easement Agreement, dated July 15,
1981, recorded in Deed Book 7903, Page 385, aforesaid Records (said Amendment
having been terminated by Agreement dated September 20, 1982, recorded in Deed
Book 8255, Page 475, aforesaid Records); as further amended by Second Amendment
to Parking Deck and Easement Agreement, dated July 18, 1985, recorded in Deed
Book 9618, Page 37, aforesaid Records; as further amended by that certain Third
Amendment to Parking Deck and Easement Agreement, dated as of July 18, 1985,
recorded in Deed Book 10290, Page 389, aforesaid Records; as further amended by
that certain Declaration of Release dated December 22, 1986, recorded Deed Book
10561, Page 358, aforesaid Records; as further amended by that certain Fourth
Amendment to Parking Deck and Easement Agreement, dated as of August 11, 1988,
recorded in Deed Book 11790, Page 76, aforesaid Records.
(b) Reciprocal Easement Agreement by and among Robinson-Humphrey Properties,
Inc., R-H Associates Bldg. II Corp. and Atlanta Financial Center Associates,
dated July 18, 1985, recorded in Deed Book 9618, Page 68, aforesaid Records; as
amended by that certain First Amendment to Reciprocal Easement Agreement, dated
as of July 18, 1985, recorded in Deed Book 10290, Page 411, aforesaid Records;
as further amended by that certain Declaration of Release, dated December 22,
1986, recorded in Deed Book 10561, Page 358, aforesaid Records; as further
amended by that certain Second Amendment to Reciprocal Easement Agreement, dated
as of August 11, 1988, recorded in Deed Book 11790, Page 69, aforesaid Records.
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(c) Agreement by and among R-H Associates Bldg. II Corp., Atlanta Financial
Center Associates, Robinson-Humphrey Properties, Inc. and the Department of
Transportation of the State of Georgia, dated July 18, 1985, recorded in Deed
Book 9618, Page 145, aforesaid Records; as amended by that certain Amendment to
Agreement dated as of July 18, 1985, recorded in Deed Book 10290, page 289,
aforesaid Records; the interest of R-H Associates Bldg. II Corp. thereunder
having been assigned to Two Atlanta Financial Center Associates by that certain
Assignment and Assumption (DOT Agreements), dated July 28, 1987, recorded in
Deed Book 10973, Page 179, aforesaid Records.
(d) Agreement Regarding Georgia 400 Extension, by and among R-H Associates Bldg.
II Corp., Robinson-Humphrey Properties, Inc., Atlanta Financial Center
Associates, MONY Mortgage Investors, and The Mutual Life Insurance Company of
New York dated July 18, 1985, recorded in Deed Book 9623, Page 75, aforesaid
Records; as amended by that certain First Amendment to Agreement Regarding
Georgia Highway 400 Extension, dated as of July 18, 1985, recorded in Deed Book
10290, Page 419, aforesaid Records; the interest of R-H Associates Bldg. II
Corp. thereunder having been assigned to Two Atlanta Financial Center Associates
by that certain Assignment and Assumption (DOT Agreements) dated July 28, 1987,
recorded in Deed Book 10973, Page 179, aforesaid Records.
(e) Limited Warranty Deed from R-H Building Partners, Ltd., a Georgia limited
partnership, as to an undivided 50% interest and The Mutual Life Insurance
Company of New York, a New York corporation, as to an undivided 50% interest,
together doing business as Atlanta Financial Center Associates, a Georgia Joint
Venture to the Department of Transportation of the State of Georgia, dated
December 22, 1986, filed for record December 23, 1986 at 1:41 p.m., recorded in
Deed Book 10513, Page 108, aforesaid Records.
(f) Limited Warranty Deed from Atlanta Financial Center Associates, a Georgia
joint venture composed of The Mutual Life Insurance Company of New York and R-H
Building Partners, Ltd., to the Department of Transportation of the State of
Georgia, dated April 4, 1989, filed for record July 19, 1989 at 9:30 a.m.,
recorded in Deed Book 12667, Page 115, aforesaid Records.
PHASE II
ALL THAT TRACT OR PARCEL OF LAND lying and being in Land Lot 45, 17th District,
City of Atlanta, Fulton County, Georgia and being more particularly described as
follows:
TO FIND THE TRUE POINT OF BEGINNING begin at a point formed by the intersection
of the easternmost right-of-way line of Peachtree Road (a variable right-of-way
being 80 feet at this point) with the northernmost right-of-way line of Highland
Drive (a 50-foot right-of-way) and proceed thence in a northeasterly direction
along the aforesaid easternmost right-of-way line of Peachtree Road a distance
of 365.1 feet to a point; proceed thence in a northeasterly direction along the
aforesaid easternmost right-of-way line north 13(degree)43'08" east a distance
of 37.39 feet to a point; proceed thence along the aforesaid easternmost
right-of-way line, following the curvature thereof to the right, an arc distance
of 179.12 feet to a point, said arc being subtended by a chord 178.99 feet in
length and bearing north 20(degree)26'46" east; proceed thence in a
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<PAGE> 59
northeasterly direction along the aforesaid easternmost right-of-way line north
26(degree)16'11" east a distance of 48.21 feet to a point; proceed thence in a
northeasterly direction along the aforesaid easternmost right-of-way line north
28(degree)17'14" east a distance of 48.18 feet to a point; proceed thence in a
northeasterly direction along the aforesaid easternmost right-of-way line north
30(degree)11'09" east a distance of 48.15 feet to a point; proceed thence in a
northeasterly direction along the aforesaid easternmost right-of-way line north
32(degree)20'44" east a distance of 57.74 feet to a point; proceed thence in a
northeasterly direction along the aforesaid easternmost right-of-way line north
55(degree) 03'02" east a distance of 8.44 feet to a point, said point being THE
TRUE POINT OF BEGINNING.
FROM THE TRUE POINT OF BEGINNING THUS ESTABLISHED proceed thence along
the aforesaid easternmost right-of-way line north 55(degree)03'07" east a
distance of 18.02 feet to a point; proceed thence in a southeasterly direction
along the aforesaid easterly right-of-way line, following the curvature thereof
to the right, an arc distance of 7.77 feet to a point, said arc being subtended
by a chord 7.77 feet in length and bearing south 31(degree)52'33" east; thence
leave said right-of-way line and proceed in a southeasterly direction along the
arc of a curve to the left, an arc distance of 171.77 feet to a point, said arc
being subtended by a chord 171.77 feet in length and bearing south
32(degree)46'15" east; proceed thence in a southeasterly direction along the
arc of a curve to the left, an arc distance of 14.05 feet to a point, said arc
being subtended by a chord 14.05 feet in length and bearing south
31(degree)08'45" east; proceed thence north 31(degree)11'25" east a distance of
193.49 feet to a point; proceed thence north 31(degree)11'25" east a distance
of 3.77 feet to a point; proceed thence south 74(degree)31'03" east a distance
of 62.79 feet to a point; proceed thence north 76(degree)11'25" east a distance
of 74.14 feet to a point; proceed thence south 13(degree)51'45" east a distance
of 41.61 feet; proceed thence north 74(degree)31'03" west a distance of 10.04
feet to a point; proceed thence south 31(degree)11'25" west a distance of
366.62 feet to a point; proceed thence north 81(degree)21'18" west a distance
of 0.36 feet to a point; proceed thence north 14(degree)08'05" west a distance
of 140.56 feet to a point; proceed thence north 81(degree)18'35" west a
distance of 35.04 feet to a point; proceed thence north 31(degree)11'25" east a
distance of 26.49 feet to a point; proceed thence along the arc of a curve to
the right an arc distance of 23.09 feet to a point, said arc being subtended by
a chord 23.09 feet in length and bearing north 31(degree)15'01" west; proceed
thence along an arc of a curve to the right an arc distance of 178.88 feet to
a point, said arc being subtended by a chord 178.87 feet in length and bearing
north 32(degree)44'02" west, said poin being THE TRUE POINT OF BEGINNING,
said tract or parcel of land being more particularly shown as "Phase II" on
that certain survey by ALTA Surveying, bearing the seal and certification of
Michael F. Lawler, Georgia Registered Land Surveyor No. 1946, prepared for
Overseas Partners (APC), Inc., New York Life Insurance Company, California
Public Employee Retirement System and Chicago Title Insurance Company, dated
August 5, 1996, last revised October 14, 1996, and bearing file no. 96144,
which survey is incorporated herein by this reference.
LESS AND EXCEPT that portion of the above property conveyed by the following:
(1) Limited Warranty Deed from R-H Associates Bldg. II Corp. to the Department
of Transportation, dated December 22, 1986, recorded in Deed Book 10513, Page
127, aforesaid Records.
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<PAGE> 60
TOGETHER WITH all easements appurtenant to the above property created by the
following:
(a) Parking Deck and Easement Agreement by and among Michael C Carlos, George C.
Carlos, Andrew C. Carlos, and R-H Building Partners, Ltd., dated July 15, 1981,
recorded in Deed Book 7903, Page 165, aforesaid Records; as amended by that
certain Amendment of Parking Deck and Easement Agreement, dated July 15, 1981,
recorded in Deed Book 7903, Page 385, aforesaid Records (said Amendment having
been terminated by Agreement dated September 20, 1982, recorded in Deed Book
8255, Page 475, aforesaid Records); as further amended by Second Amendment to
Parking Deck and Easement Agreement, dated July 18, 1985, recorded in Deed Book
9618, Page 37, aforesaid Records; as further amended by that certain Third
Amendment to Parking Deck and Easement Agreement, dated as of July 18, 1985,
recorded in Deed Book 10290, Page 389, aforesaid Records; as further amended by
that certain Declaration of Release dated December 22, 1986, recorded in Deed
book 10561, PAGE 358, aforesaid Records; as further amended by that certain
Fourth Amendment to Parking Deck and Easement Agreement, dated as of August 11,
1988, recorded in Deed Book 11790, Page 76, aforesaid Records.
(b) Reciprocal Easement Agreement by and among Robinson-Humphrey Properties,
Inc., R-H Associates Bldg. II Corp. and Atlanta Financial Center Associates,
dated July 18, 1985, recorded in Deed Book 9618, Page 68, aforesaid Records; as
amended by that certain First Amendment to Reciprocal Easement Agreement, dated
as of July 18, 1985, recorded in Deed Book 10290, Page 411, aforesaid Records;
as further amended by that certain Declaration of Release, dated December 22,
1986, recorded in Deed Book 10561, Page 358, aforesaid Records; as further
amended by that certain Second Amendment to Reciprocal Easement Agreement,
dated as of August 11, 1988, recorded in Deed Book 11790, Page 69, aforesaid
Records.
(c) Agreement by and among R-H Associates Bldg. II Corp., Atlanta Financial
Center Associates, Robinson-Humphrey Properties, Inc. and the Department of
Transportation of the State of Georgia, dated July 18, 1985, recorded in Deed
Book 9618, Page 145, aforesaid Records; as amended by that certain Amendment to
Agreement dated as of July 18, 1985, recorded in Deed Book 10290, Page 289,
aforesaid Records; the interest of R-H Associates Bldg. II Corp. thereunder
having been assigned to Two Atlanta Financial Center Associates by that certain
Assignment and Assumption (DOT Agreements), dated July 28, 1987, recorded in
Deed Book 10973, Page 179, aforesaid Records.
(d) Agreement Regarding Georgia 400 Extension, by and among R-H Associates Bldg.
II Corp., Robinson-Humphrey Properties, Inc., Atlanta Financial Center
Associates, MONY Mortgage Investors, and The Mutual Life Insurance Company of
New York dated July 18, 1985, recorded in Deed Book 9623, Page 75, aforesaid
Records; as amended by that certain First Amendment to Agreement Regarding
Georgia Highway 400 Extension, dated as of July 18, 1985, recorded in Deed Book
10290, Page 419, aforesaid Records; the interest of R-H Associates Bldg. II
Corp. thereunder having been assigned to Two Atlanta Financial Center Associates
by that certain Assignment and Assumption (DOT Agreements) dated July 28, 1987,
recorded in Deed Book 10973, Page 179, aforesaid Records.
5
<PAGE> 61
(e) Limited Warranty Deed from R-H Associates Bldg. II Corp.
to the Department of Transportation of the State of Georgia dated
December 22, 1986, recorded in Deed Book 10513, Page 127, aforesaid Records.
(f) Limited Warranty Deed from Two Atlanta Financial Center Associates, a
Georgia joint venture composed of The Mutual Life Insurance Company of New York
and R-H Associates Bldg. II Corp., to the Department of Transportation of the
State of Georgia, dated April 4, 1989, filed for record July 19, 1989 at 9:30
a.m., recorded in Deed Book 12667, Page 141, aforesaid Records.
PHASE III
All that tract or parcel of land lying and being in Land Lot 45, 17th District,
City of Atlanta, Fulton County, Georgia and being more particularly described as
follows:
TO FIND THE TRUE POINT OF BEGINNING begin at a point formed by the intersection
of the easternmost right-of-way line of Peachtree Road (a variable right-of-way
being 80 feet at this point) with the northernmost right-of-way line of Highland
Drive (a 50-foot right-of-way proceed thence in a northeasterly direction along
the aforesaid easternmost right-of-way line a distance of 365.1 feet to a point;
proceed thence along the aforesaid easternmost right-of-way line north
13(degree)43'08" east a distance of 37.39 feet to a point; proceed thence
along the aforesaid easternmost right-of-way line, following the curvature
thereof to the right, an arc distance of 179.12 feet to a point, said arc being
subtended by a chord 178.99 feet in length and bearing north 20(degree)26'46"
east; proceed thence in a northeasterly direction along the aforesaid
easternmost right-of-way line north 26(degree)16'11" east a distance of 48.21
feet to a point; proceed thence in a northeasterly direction along the aforesaid
easternmost right-of-way line north 28(degree)17'14" east a distance of 48.18
feet to a point; proceed thence in a northeasterly direction along the aforesaid
easternmost right-of-way line north 30(degree)11'09" east a distance of 48.15
feet to a point; proceed thence in a northeasterly direction along the aforesaid
easternmost right-of-way line north 32(degree)20'44" east a distance of 57.74
feet to a point; proceed thence in a northeasterly direction along the aforesaid
easternmost right-of-way line north 55(degree)03'02" east a distance of 8.44
feet to a point; proceed thence in a northeasterly direction along the aforesaid
easternmost right-of-way line north 55(degree)32'07" east a distance of 18.02
feet to a point; proceed thence in a southeasterly direction along the aforesaid
easternmost right-of-way line, following the curvature thereof to the left, an
arc distance of 7.77 feet to a point, said arc being subtended by a chord 7.77
feet in length and bearing south 31(degree)52'33" east; proceed thence in a
northeasterly direction along the aforesaid easternmost right-of-way line north
35(degree)10'06" east a distance of 74.16 feet to a point; proceed thence in a
southeasterly direction along the aforesaid easternmost right-of-way line south
58(degree)48'33" east a distance of 6.36 feet to a point; proceed thence in a
northeasterly direction along the aforesaid easternmost right-of-way line north
31(degree)11'26" east a distance of 10.05 feet to a point; proceed thence in a
southeasterly direction along the aforesaid easternmost right-of-way line south
58(degree)48'29" east a distance of 19 feet to a point; proceed thence in a
northeasterly direction along the aforesaid easternmost right-of-way line north
31(degree)11'26" east a distance of 24.83 feet to a point; proceed thence in a
northwesterly direction along the aforesaid easternmost
6
<PAGE> 62
right-of-way line north 58(degree)48'44" west a distance of 19 feet to a
point; proceed thence in a northeasterly direction along the aforesaid
easterly right-of-way line north 31(degree)11'23" east a distance of 22.01 feet
to a point; proceed thence in a northeasterly direction along the aforesaid
easterly right-of-way line north 40(degree)58'56" east a distance of 74.76 feet
to a point, said point being THE TRUE POINT OF BEGINNING.
FROM THE TRUE POINT OF BEGINNING THUS ESTABLISHED proceed thence in a
northeasterly direction along the aforesaid easternmost right-of-way line north
21(degree)19'11" west a distance of 7.91 feet to a point; proceed thence in a
northeasterly direction along the aforesaid easternmost right-of-way line north
23(degree)34'11" east a distance of 38.38 feet to a point; proceed thence in a
northeasterly direction along the aforesaid easternmost right-of-way line north
40(degree)15'17" east a distance of 62.82 feet to a point; proceed thence in a
northeasterly direction along the aforesaid easternmost right-of-way line north
39(degree)15'08" east a distance of 49.32 feet to a point; thence leave said
right-of-way line and proceed thence south 48(degree)03'44" east a distance of
95.71 feet to a point; proceed thence south 13(degree)51'45" east a distance of
220.34 feet to a point; proceed thence south 76(degree)11'25" west a distance of
74.14 feet to a point; proceed thence north 74(degree)31'03" west a distance of
62.79 feet to a point; proceed thence south 31(degree)11'25" west a distance of
3.77 feet to a point; proceed thence in a northwesterly direction along the arc
of a curve to the right, an arc distance of 131.99 feet to a point, said arc
being subtended by a chord 131.97 feet in length and bearing north
26(degree)58'00" west to a point; proceed thence north 21(degree)19'11" west a
distance of 38.37 feet to a point; said point being THE TRUE POINT OF BEGINNING,
said tract or parcel of land being more particularly shown as "Phase III" on
that certain survey prepared by ALTA Surveying, bearing the seal and
certification of Michael F. Lawler, Georgia Registered Land Surveyor no. 1946,
prepared for Overseas Partners (AFC), Inc., New York Life Insurance Company,
California Public Employee Retirement System and Chicago Title Insurance
Company, dated August 5, 1996 last revised October 14, 1996 and bearing file
no. 96144, which survey is incorporated herein by this reference.
TOGETHER WITH all easements appurtenant to the above property created by
the following:
(a) Parking Deck and Easement Agreement among Michael G. Carlos, George C.
Carlos, Andrew C. Carlos and R-H Building Partners, Ltd., dated July 15, 1981,
recorded at Deed Book 7903, page 165, Fulton County Records, as amended by
Amendment of Parking Deck and Easement Agreement dated July 15, 1981, recorded
at Deed Book 7903, page 385, said Amendment having been terminated by Agreement
dated September 20, 1982, recorded at Deed Book 8255, page 475, as further
amended by Second Amendment to Parking Deck and Easement Agreement dated July
18, 1985, recorded at Deed Book 9618, page 37, and Third Amendment to Parking
Deck and Easement Agreement dated as of July 18, 1985, recorded in Deed Book
10290, page 389 and Declaration of Release dated December 22, 1986, recorded at
Deed Book 10561, page 358, aforesaid records, as further amended by Fourth
Amendment to Parking Deck and Easement Agreement dated a of August 11, 1988,
recorded in Deed Book 11790, page 76, aforesaid records.
(b) Reciprocal Easement Agreement among Atlanta Financial Center Associates, R-H
Associates Bldg. II Corp. and Robinson-Humphrey Properties, Inc., dated July 18,
1985, recorded
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<PAGE> 63
in Deed Book 9618, page 68, aforesaid records, as amended by First Amendment
to Reciprocal Easement Agreement dated as of July 18, 1985, recorded at Deed
Book 10290, page 411, as further amended by Declaration of Release dated
December 22, 1986, recorded at Deed Book 10561, page 358, aforesaid records,
as amended by Second Amendment to Reciprocal Easement Agreement dated as of
August 11, 1988, recorded in Deed Book 11790, page 69, aforesaid records.
(c) Agreement among R-H Associates Bldg. II Corp., Atlanta Financial Center
Associates, Robinson-Humphrey Properties, Inc. and Department of Transportation
of State of Georgia, dated July 18, 1985, recorded at Deed Book 9618, page 145,
aforesaid records, as amended by Agreement dated as of July 18, 1985, recorded
at Deed Book 10290, page 289; the interest of R-H Associates Bldg. II Corp.
thereunder having been assigned to Two Atlanta Financial Center Associates by
that certain Assignment and Assumption (DOT Agreements), dated July 28, 1987,
recorded in Deed Book 10973, page 179, aforesaid records.
(d) Encroachment Easement Agreement by and between Robinson-Humphrey Properties,
Inc. and Two Atlanta Financial Center Associates dated December 24, 1987,
recorded at Deed Book 11269, page 265, aforesaid records.
(e) Agreement Regarding Georgia 400 Highway Extension among R-H Associates Bldg.
II Corp., Robinson-Humphrey Properties, Inc., Atlanta Financial Center
Associates, Trustees of Mony Mortgage Investors and The Mutual Life Insurance
Company of New York, dated as of July 18, 1985, recorded at Deed Book 9623, page
75, aforesaid records, as amended by First Amendment to Agreement Regarding
Georgia 400 Highway Extension dated as of July 18, 1985, recorded at Deed Book
10290, page 419, aforesaid records; the interest of RH Associates Bldg. II Corp.
thereunder having been assigned to Two Atlanta Financial Center Associates by
that certain Assign ment and Assumption (DOT Agreements), dated July 28, 1987,
recorded in Deed Book 10973, page 179, aforesaid records.
(f) Limited Warranty Deed from Robinson-Humphrey Properties, Inc. to Department
of Transportation of State of Georgia, dated July 18, 1985, recorded at Deed
Book 9618, page 288, aforesaid records, as corrected by Corrective Limited
Warranty Deed dated as of July 18, 1985, recorded at Deed Book 10290, page 372,
aforesaid records.
(g) Limited Warranty Deed from R-H Associates Bldg. III Corp., a Georgia
corporation to the Department of Transportation of the State of Georgia, dated
April 4, 1989, filed for record July 19, 1989 at 9:30 am., recorded in Deed Book
12667, page 222, aforesaid records.
PHASE IV
All that tract or parcel of land lying and being in Land Lot 45, 17th District,
City of Atlanta, Fulton County, Georgia and being more particularly described as
follows:
TO FIND THE TRUE POINT OF BEGINNING begin at a point formed by the intersection
of the easternmost right-of-way line of Peachtree Road (a variable right-of-way
being 80 feet at
8
<PAGE> 64
this point) with the northernmost right-of-way line of Highland Drive
(a 50-foot right-of-way and proceed thence in a northeasterly direction
along the aforesaid easternmost right-of-way line a distance of 365.1 feet;
proceed thence along the aforesaid easternmost right-of-way line, north
13(degree)43'08" east a distance of 37.39 feet to a point; proceed thence in a
northeasterly direction along the aforesaid easternmost right-of-way line,
following the curvature thereof to the right, an arc distance of 179.12 feet to
a point, said arc being subtended by a chord 178.99 feet in length and bearing
north 20(degree)26'46" east; proceed thence in a northeasterly direction along
the aforesaid easternmost right-of-way line north 26(degree)16'11" east a
distance of 48.21 feet to a point; proceed thence in a northeasterly direction
along the aforesaid easternmost right-of-way line north 28(degree)17'14" east a
distance of 48.18 feet to a point; proceed thence in a northeasterly direction
along the aforesaid easternmost right-of-way line north 30(degree)11'09" east a
distance of 48.15 feet to a point; proceed thence in a northeasterly direction
along the aforesaid easternmost right-of-way line north 32(degree)20'44" east a
distance of 57.74 feet to a point; proceed thence in a northeasterly direction
along the aforesaid easternmost right-of-way line north 55(degree)03'02" east a
distance of 8.44 feet to a point; proceed thence in a northeasterly
direction along the aforesaid easternmost right-of-way line north
55(degree)32'07" east a distance of 18.02 feet to a point; proceed thence in a
southeasterly direction along the aforesaid easternmost right-of-way line,
following the curvature thereof to the left, an arc distance of 7.77 feet to a
point, said arc being subtended by a chord 7.77 feet in length and bearing
south 31(degree)52'33" east, said point being THE TRUE POINT OF BEGINNING.
FROM THE TRUE POINT OF BEGINNING THUS ESTABLISHED proceed thence in a
northeasterly direction along the aforesaid easternmost right-of-way line north
35(degree)10'06" east a distance of 74.16 feet to a point; proceed thence in a
southeasterly direction along the aforesaid easternmost right-of-way line south
58(degree)48'33" east a distance of 6.36 feet to a point; proceed thence in a
northeasterly direction along the aforesaid easternmost right-of-way line north
31(degree)11'26" east a distance of 10.05 feet to a point; proceed thence in a
southeasterly direction along the aforesaid easternmost right-of-way line
south 58(degree)48'29" east a distance of 19 feet to a point; proceed thence in
a northeasterly direction along the aforesaid easternmost right-of-way line
north 31(degree)11'26" east a distance of 24.83 feet to a point; proceed thence
in a northwesterly direction along the aforesaid easternmost right-of-way line
north 58(degree)48'44" west a distance of 19 feet to a point; proceed thence in
a northeasterly direction along the aforesaid easternmost right-of-way line
north 31(degree)11'23" east a distance of 22.01 feet to a point; proceed thence
in a northeasterly direction along the aforesaid easternmost right-of-way line
north 40(degree)58'56" east a distance of 74.76 feet to a point; thence leave
said right-of-way line and proceed thence south 21(degree)19'11" east a distance
of 38.37 feet to a point; proceed thence in a southeasterly direction along the
arc of a curve to the left, an arc distance of 131.99 feet to a point, said arc
being subtended by a chord 131.97 feet in length and bearing south
26(degree)58'00" east; proceed thence south 31(degree)11'25" west a distance of
193.49 feet to a point; proceed thence in a northwesterly direction along the
arc of a curve to the right, an arc distance of 14.05 feet to a point, said arc
being subtended by a chord 14.05 feet in length and bearing north
31(degree)08'45" west, proceed thence in a northwesterly direction along the arc
of a curve to the right, an arc distance of 171.77 feet to a point, said arc
being subtended by a chord 171.77 feet in length and bearing north
32(degree)46'15" west, said point being located on the aforesaid easternmost
right-of-way line and being THE TRUE POINT OF BEGINNING, said tract or parcel of
land being more particularly shown as "Phase IV" on that certain survey by
ALTA Surveying, bearing the seal and certification of
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Michael F. Lawler, Georgia Registered Land Surveyor No. 1946, prepared
for Overseas Partners (AFC) Inc., New York Life Insurance Company, California
Public Employee Retirement System and Chicago Title Insurance Company, dated
August 5, 1996, last revised October 14, 1996, and bearing file no.
96144, which survey is incorporated herein by this reference.
LESS AND EXCEPT that portion of the above property conveyed by the following:
(1) Limited Warranty Deed from Robinson-Humphrey Properties, Inc. to the
Department of Transportation of the State of Georgia, dated July 18, 1985,
recorded in Deed Book 9618, Page 288, aforesaid Records; as corrected by that
certain Corrective Warranty Deed recorded in Deed Book 10290, Page 372,
aforesaid Records.
TOGETHER WITH all easements appurtenant to the above property created by the
following:
(a) Parking Deck and Easement Agreement by and among Michael C. Carlos, George
C. Carlos, Andrew C. Carlos, and R-H Building Partners, Ltd., dated July 15,
1981, recorded in Deed Book 7903, Page 165, aforesaid Records; as amended by
that certain Amendment of Parking Deck and Easement Agreement, dated July 15,
1981, recorded in Deed Book 7903, Page 385, aforesaid Records (said Amendment
having been terminated by Agreement dated September 20, 1982, recorded in Deed
Book 8255, Page 475, aforesaid Records); as further amended by Second Amendment
to Parking Deck and Easement Agreement, dated July 18, 1985, recorded in Deed
Book 9618, Page 37, aforesaid Records; as further amended by that certain Third
Amendment to Parking Deck and Easement Agreement, dated as of July 18, 1985,
recorded in Deed Book 10290, Page 389, aforesaid Records; as further amended by
that certain Declaration of Release dated December 22, 1986, recorded in Deed
Book 10561, Page 358, aforesaid Records; as further amended by that certain
Fourth Amendment to Parking Deck and Easement Agreement, dated as of August 11,
1988, recorded in Deed Book 11790, Page 76, aforesaid Records.
(b) Reciprocal Easement Agreement by and among Robinson-Humphrey Properties,
Inc., R-H Associates Bldg. II Corp. and Atlanta Financial Center Associates,
dated July 18, 1985, recorded in Deed Book 9618, Page 68, aforesaid Records; as
amended by that certain First Amendment to reciprocal easement Agreement, dated
as of July 18, 1985, recorded in Deed Book 10290, Page 411, aforesaid Records;
as further amended by that certain Declaration of Release, dated December 22,
1986, recorded in Deed Book 10561, Page 358, aforesaid Records; as further
amended by that certain Second Amendment to Reciprocal Easement agreement, dated
as of August 11, 1988, recorded in Deed Book 11790, Page 69, aforesaid Records.
(c) Agreement by and among R-H Associates Bldg. II Corp., Atlanta Financial
Center Associates, Robinson-Humphrey Properties, Inc. and the Department of
Transportation of the State of Georgia, dated July 18, 1985, recorded in Deed
Book 9618, Page 145, aforesaid Records; as amended by that certain Amendment to
Agreement dated as of July 18, 1985, recorded in Deed Book 10290, Page 289,
aforesaid Records; the interest of R-H Associates Bldg. II Corp. thereunder
having been assigned to Two Atlanta Financial Center Associates by that certain
Assignment and Assumption (DOT Agreements), dated July 28, 1987, recorded in
Deed Book 10973, Page 179, aforesaid Records.
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<PAGE> 66
(d) Agreement Regarding Georgia 400 Extension, by and among R-H Associates Bldg.
II Corp., Robinson-Humphrey Properties, Inc., Atlanta Financial Center
Associates, MONY Mortgage Investors, and The Mutual Life Insurance Company of
New York, dated July 18, 1985, recorded in Deed Book 9623, Page 75, aforesaid
Records; as amended by that certain First Amendment to Agreement Regarding
Georgia Highway 400 Extension, dated as of July 18, 1985, recorded in Deed Book
10290, Page 419, aforesaid Records; the interest of R-H Associates Bldg. II
Corp. thereunder having been assigned to Two Atlanta Financial Center Associates
by that certain Assignment and Assumption (DOT Agreements) dated July 28, 1987,
recorded in Deed Book 10973, Page 179, aforesaid Records.
(e) Limited Warranty Deed from Robinson-Humphrey Properties, Inc. to the
Department of Transportation of the State of Georgia, dated July 18, 1985,
recorded in Deed Book 9618, Page 288, aforesaid Records; as corrected by that
certain Corrective Warranty Deed recorded in Deed Book 10290, Page 372,
aforesaid Records.
(f) Limited Warranty Deed from Robinson-Humphrey Properties, Inc., a Georgia
corporation to the Department of Transportation of the State of Georgia, dated
April 4, 1989, filed for record July 19, 1989 at 9:30 a.m., recorded in Deed
Book 12667, Page 163, aforesaid Records.
(g) Limited Warranty Deed from Robinson-Humphrey Properties, Inc., a Georgia
corporation to the Department of Transportation of the State of Georgia, dated
April 4, 1989, filed for record July 19, 1989 at 9:30 a.m., recorded in Deed
Book 12667, Page 192, aforesaid Records.
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EXHIBIT B
PERMITTED TITLE EXCEPTIONS
(a) City of Atlanta taxes subsequent to the year 1996, not yet due or payable,
State and County taxes for the year 1996, not yet past due, and any
additional taxes resulting from reassessment of the 1995 and 1996 taxes.
(b) Indenture from J. W. Walters to Stratford Arms Apartments, Inc., dated
October 29, 1958, recorded in Deed Book 3389, Page 525, aforesaid Records,
located as shown on that certain survey referred to in Exhibit "A"
attached hereto. (Affects only Phase I)
(c) Sewer Easement from Beverly M. DuBose to Julian C. Jett and Julia G. Jett.
dated June 20, 1951, recorded in Deed Book 2661, Page 43, aforesaid
Records; located as shown on that certain survey referred to in Exhibit "A"
attached hereto. (Affects only Phase I and Phase II)
(d) General Utility Easement from B. M. DuBose to Georgia Power Company, dated
December 27, 1949, recorded in Deed Book 2498, page 464, aforesaid Records;
located as shown on that certain survey referred to in Exhibit "A" attached
hereto.
(e) Easement from R-H Building Partners, Ltd. to Georgia Power Company, dated
May 24, 1982, recorded in Deed Book 8163, Page 272, aforesaid Records;
located as shown on the certain survey referred to in Exhibit "A" attached
hereto. (Affects only Phase I)
(f) Easement from Atlanta Financial Center Associates to Georgia Power Company,
dated January 20, 1986, recorded in Deed Book 9948, Page 54, aforesaid
Records; located as shown on that certain survey referred to in Exhibit "A"
attached hereto. (Affects only Phase I)
(g) Easement from Atlanta Financial Center Associates to Georgia Power Company,
dated February 1, 1991, filed for record February 1, 1991 at 12:37 p.m.,
recorded in Deed Book 14030, Page 167, aforesaid Records; located as shown
on that certain survey referred to in Exhibit "A" attached hereto. Affects
only Phase I)
(h) Parking Deck and Easement Agreement by and among Michael C. Carlos, George
C. Carlos, Andrew C. Carlos, and R-H Building Partners, Ltd., dated July
15, 1981, recorded in Deed Book 7903, Page 165, aforesaid Records; as
amended by that certain Amendment of Parking Deck and Easement Agreement,
dated July 15, 1981, recorded in Deed Book 7903, Page 385, aforesaid
Records (said Amendment having been terminated by Agreement dated September
20, 1982, recorded in Deed Book 8255, Page 475, aforesaid Records); as
further amended by Second Amendment to Parking Deck and Easement Agreement,
dated July 18, 1985, recorded in Deed Book 9618, Page 37, aforesaid
Records, as further amended by that certain Third Amendment to Parking Deck
and Easement Agreement, dated as of July 18, 1985, recorded in Deed Book
10290, Page 389, aforesaid Records; as further amended by that certain
Declaration of Release dated December 22, 1986, recorded in Deed Book
10561, Page 358, aforesaid Records; as further amended by that certain
Fourth Amendment to Parking Deck and Easement Agreement, dated as of August
11, 1986, recorded in Deed Book 11790, Page 76, aforesaid Records.
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<PAGE> 68
(i) Reciprocal Easement Agreement by and among Robinson-Humphrey Properties,
Inc., R-H Associates Bldg. II Corp. and Atlanta Financial Center
Associates, dated July 18. 1985, recorded in Deed Book 9618, Page 68,
aforesaid Records: as amended by that certain First Amendment to Reciprocal
Easement Agreement, dated as of July 18. 1985, recorded in Deed Book 10290,
Page 411, aforesaid Records; as further amended by that certain Declaration
of Release, dated December 22, 1986, recorded in Deed Book 10561, Page 358,
aforesaid Records; as further amended by that certain Second Amendment to
Reciprocal Easement Agreement, dated as of August 11, 1988, recorded in
Deed Book 11790, Page 69, aforesaid Records.
(j) Agreement by and among R-H Associates Bldg II Corp., Atlanta Financial
Center Associates, Robinson-Humphrey Properties, Inc. and the Department of
Transportation of the State of Georgia, dated July 18, 1985, recorded in
Deed Book 9618, Page 145, aforesaid Records; as amended by that certain
Amendment to Agreement dated as of July 18, 1985, recorded in Deed Book
10290, Page 289, aforesaid Records: the interest of R-H Associates Bldg. II
Corp. thereunder having been assigned to Two Atlanta Financial Center
Associates by that certain Assignment and Assumption (DOT Agreements),
dated July 28, 1987, recorded in Deed Book 10973, Page 179, aforesaid
Records.
(k) Easement Agreement by and between R-H Associates Bldg. II Corp. and the
Department of Transportation of the State of Georgia, dated July 18, 1985,
recorded in Deed Book 9618, Page 30l, aforesaid Records; as amended by that
certain First Amendment to Easement Agreement, dated as of July 18. 1985,
recorded in Deed Book 10290, Page 383, aforesaid Records.
(1) Agreement Regarding Georgia 400 Extension, by and among R-H Associates
Bldg. II Corp., Robinson-Humphrey Properties, Inc., Atlanta Financial
Center Associates, MONY Mortgage Investors, and The Mutual Life Insurance
Company of New York, dated July 18, 1985, recorded in Deed Book 9623, Page
75, aforesaid Records; as amended by that certain First Amendment to
Agreement Regarding Georgia Highway 400 Extension, dated as of July 18,
1985, recorded in Deed Book 10290, Page 419, aforesaid Records; the
interest of R-H Associates Bldg. II Corp. thereunder having been assigned
to Two Atlanta Financial Center Associates by that certain Assignment and
Assumption (DOT Agreements) dated July 28, 1987, recorded in Deed Book
10973, Page 179, aforesaid Records.
(m) Encroachment Easement Agreement by and between Robinson-Humphrey
Properties, Inc., a Georgia corporation and Two Atlanta Financial Center
Associates, a Georgia general partnership, dated December 24, 1987, filed
for record January 13, 1988 at 11:50 a.m., recorded in Deed Book 11269,
Page 265, aforesaid Records. (Affects only Phase II and Phase III)
(n) Easements contained in and limitations, restrictions and other matters
pertaining to the use and enjoyment of the easements reserved in that
certain Limited Warranty Deed from R-H Building Partners, Ltd., a Georgia
limited partnership, as to an undivided 50% interest and The Mutual Life
Insurance Company of New York, a New York corporation, as to an undivided
50% interest, together doing business as Atlanta Financial Center
Associates, a Georgia Joint Venture to The Department of Transportation of
the State of Georgia, dated December 22, 1986, filed for record December
23, 1986 at 1:41 p.m., recorded in Deed Book 10513, Page 108 aforesaid
Records. (Affects only Phase I and Phase II)
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<PAGE> 69
(o) Easements contained in and limitations, restrictions and other matters
pertaining to the use and enjoyment of the easements reserved in that
certain Limited Warranty Deed from R-H Associates Bldg. II Corp. to the
Department of Transportation, dated December 22, 1986, recorded in Deed
Book 10513, Page 127, aforesaid Records. (Affects only Phase II)
(p) Easements contained in and limitations, restrictions and other matters
pertaining to the use and enjoyment of the easements reserved in that
certain Limited Warranty Deed from Atlanta Financial Center Associates, a
Georgia joints venture composed of The Mutual Life Insurance Company of New
York and R-H Building Partners, Ltd., to the Department of Transportation
of the State of Georgia, dated April 4, 1989, filed for record July 19,
1989 at 9:30 a.m., recorded in Deed Book 12667, Page 115, aforesaid
Records.
(q) Easements contained in and limitations, restrictions and other matters
pertaining to the use and enjoyment of the easements reserved in that
certain Limited Warranty Deed from Two Atlanta Financial Center Associates,
a Georgia joint venture composed of The Mutual Life Insurance Company of
New York and R-H Associates Bldg. II Corp., to the Department of
Transportation of the State of Georgia, dated April 4, 1989, filed for
record July 19, 1989 at 9:30 a.m., recorded in Deed Book 12667. Page 141,
aforesaid Records. (Affects only Phase II)
(r) Easements contained in and limitations, restrictions and other matters
pertaining to the use and enjoyment of the easements reserved in that
certain limited Warranty Deed from R-H Associates Bldg. III Corp., a
Georgia corporation to the Department of Transportation of the State of
Georgia, dated April 4, 1989, filed for record July 19, 1989 at 9:30 a.m.,
recorded in Deed Book 12667, Page 222, aforesaid Records. (Affects only
Phase III)
(s) Easement contained in and limitations, restrictions and other matters
pertaining to the use and enjoyment of the easements reserved in that
certain Limited Warranty Dead from Robinson-Humphrey Properties, Inc. to
the Department of Transportation of the State of Georgia, dated July 18,
1985, recorded in Deed Book 9618, Page 288, aforesaid Records; as corrected
by that certain Corrective Warranty Deed recorded in Deed Book 10290, Page
372, aforesaid Records. (Affects only Phase IV)
(t) Access Easement Agreement from Robinson-Humphrey Properties, Inc., to the
Department of Transportation of the State of Georgia, dated April 4, 1989,
recorded in Deed Book 12667. Page 100, aforesaid Records. (Affects only
Phase IV)
(u) Easements contained in and limitations, restrictions and other matters
pertaining to the use and enjoyment of the easements reserved in that
certain Limited Warranty Deed from Robinson-Humphrey Properties, Inc., a
Georgia corporation to the Department of Transportation of the State of
Georgia, dated April 4, 1989, filed for record July 19, 1989 at 9:30
a.m., recorded in Deed Book 12667, Page 163, aforesaid Records. (Affects
only Phase I, Phase II and Phase IV)
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(v) Easements contained in and limitation, restrictions and other matters
pertaining to the use and enjoyment of the easements reserved in that
certain Limited Warranty Deed from Robinson-Humphrey Properties, Inc., a
Georgia corporation to the Department of Transportation of the State of
Georgia, dated April 4, 1989, filed for record July 19, 1989 at 9:30 a.m.,
recorded in Deed Book 12667, Page 192, aforesaid Records. (Affects only
Phase I, Phase II and Phase IV)
(w) Rights of tenants in possession under written leases, as tenants only.
SEE NEXT PAGE FOR ITEM (x)
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<PAGE> 71
(x) The following matters shown on that certain as-built survey entitled :
"As Built Survey of Atlanta Financial Center," prepared by ALTA Surveying,
dated August 5, 1996, last revised October 14, 1996, certified by Michael
F. Lawler, Georgia Registered Land Surveyor No. 1946:
1. Sanitary sewer line with manholes running along and across a
southerly property line and along a southwesterly property line, being
designated on said survey as an easement recorded at Deed Book 2661, Page
43, Fulton County, Georgia records.
2. A transformer located near a southerly property line with utility
lines running along a southerly property line and along and across a
northwesterly property line, being designated on said survey as an
approximate Georgia Power Company easement recorded at Deed Book 8163,
Page 272, aforesaid records.
3. Pavement encroachment onto neighboring property across the
southwesterly and southerly property lines.
4. Five foot sanitary Sewer easement running along the easterly
property fine, being designated on said survey as an easement recorded
in Deed Book 3389, Page 225, aforesaid records.
5. Transformer enclosure, fan and generator located near the easterly
property line, being designated on said survey as a Georgia Power Company
easement recorded in Deed Book 14030, Page 167, aforesaid records.
6. Twelve foot easement and manhole located along the easterly property
line, being designated on said survey as a Georgia Power Company easement
recorded in Deed Book 9948, Page 54, aforesaid records.
7. Georgia 400 Right of Way running through center of property, with a
reference on said survey to Agreement with the Georgia Department of
Transportation, recorded in Deed Book 9618, Page 145, aforesaid records.
8. Fifty foot buffer along a southerly property line.
9. MARTA shelter located on and across a northwesterly property line.
10. Eighteen foot construction easement extending into the property
from the northwesterly property line, being designated on said survey as
the easement recorded in Deed Book 9618, Page 145, Deed Book 9618, Page
301, aforesaid records
11. Eighteen foot construction easement extending into the property
from the northwesterly property line, being designated on said survey as
the easement recorded in Deed Book 9618, Page 145, Deed Book 9618, Page
288, and Deed 10290, Page 372, aforesaid records.
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<PAGE> 72
12. Concrete Deck Over Georgia 400, located on "Phase IV."
13. Access Easement located along a portion of the northwesterly property
line, being designated on said survey as the easement recorded in Deed Book
12667, Page 100, aforesaid records.
14. One sign located near a southwesterly corner of the property and one
sign located near a southerly property line.
15. Service Drive located near the easterly property line.
16. Encroachment of Building III pursuant to Encroachment Agreement
recorded in Deed Book 11269, Page 265, aforesaid records.
17. Power poles and one signal pole located along southwesterly property
line.
18. Water line extending into the property from the northwesterly property
line (with a reference on said survey to an instrument recorded in Deed Book
9618, Page 68, aforesaid records).
19. A fire hydrant located between the northwesterly property line and
Building I, a fire hydrant located in or adjacent to the Parking Deck near a
southerly property line, two fire hydrants located in or on that Parking Deck,
two fire hydrants located on or near the northwesterly side of the Parking Deck,
a headwall located northerly of Building I near the northwesterly property line,
and drop inlets, trench drains, light poles and planters located throughout the
property.
20. Concrete encroachment located across the northwesterly property line.
6
<PAGE> 1
EXHIBIT 10.vv
RESERVE ACCOUNT AGREEMENT
THIS RESERVE ACCOUNT AGREEMENT (this "Agreement") is made as of October 23,
1996 from OVERSEAS PARTNERS (AFC), INC., Georgia corporation, having an office
at 115 Perimeter Center Place, Suite 940, Atlanta, Georgia 30346 ("Borrower"),
to NEW YORK LIFE INSURANCE COMPANY, a New York mutual insurance company, having
an office at 51 Madison Avenue, New York, New York 10010 ("Lender").
WITNESSETH:
WHEREAS, Lender made a loan (the "Loan") to Borrower evidenced by a
Promissory Note in the original principal amount of $79,700,000.00, of even date
herewith, executed and delivered by Borrower to Lender (the "Note"); and
WHEREAS, the Note is secured by certain other documents including, without
limitation, that certain Deed to Secure Debt, Assignment of leases and Rents and
Security Agreement of even date herewith and recorded on or about the date
hereof (the "Security Deed"; the Note, the Security Deed and all other documents
executed and delivered in connection therewith, as the same may be amended from
time to time, being hereinafter referred to collectively as the "Loan
Documents"); and
WHEREAS, the Security Deed encumbers the land described therein (the
"Land") and the improvements located thereon (the "Improvements"; the Land and
the Improvements being hereinafter collectively described as the "Property");
and
WHEREAS, Borrower and Lender have agreed that upon written notice from
Lender, Borrower will establish an escrow deposit account (a) to provide a
source of funds for payment of tenant improvements and leasing costs associated
with new leases of the Property and rollover of existing tenants at the
Property, equal to $118,100.00 per month during the-term of the Loan (in the
aggregate, together with interest thereon, the "Reserve Amount"), and (b) to
provide additional security to Lender and to mitigate Lender's loss in the event
of Borrower's default under the Loan Documents, the funds in such escrow deposit
account to be held, disbursed and released as provided in this Agreement;
NOW, THEREFORE, in consideration of Lender's making of the Loan and the
covenants and agreements contained herein and in the other Loan Documents, and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged by Borrower and Lender, Borrower and Lender hereby agree as
follows:
<PAGE> 2
1. ESTABLISHMENT OF RESERVE ACCOUNT; DEPOSITS OF RESERVE AMOUNT. Upon
written notice from Lender, Borrower shall promptly (i) establish with a bank,
title insurance company or other financial institution (the "Reserve Agent")
acceptable to Lender and its assignee an interest-bearing government-insured (to
the extent insurable) deposit account (the "Reserve Account") solely for deposit
of the Reserve Amount, including interest thereon, and (ii) commence making
monthly deposits upon establishment of the Reserve Account, and thereafter
during the term of the Loan on the tenth (1Oth) day of each succeeding calendar
month, in the amount of One Hundred Eighteen Thousand One Hundred and no/100
Dollars ($118,100.00) (the "Monthly Deposit"). All interest or other amounts
earned on the Reserve Amount shall be added to and become part of the Reserve
Amount, shall be credited to Borrower, and shall be held, applied and disbursed
in accordance herewith. Upon deposit of the Monthly Deposit, evidence thereof
shall immediately be forwarded to Lender as directed by Lender, and thereafter,
throughout the term of this Agreement, monthly bank statements shall be
delivered to both Borrower and Lender as the named parties to the account.
2. ADMINISTRATION OF RESERVE ACCOUNT. Lender and Borrower each shall be a
signatory to the Reserve Account, and each shall have the right to withdraw
funds from the Reserve Account without the signature of the other only as
provided in the Blocked Account Letter (hereinafter defined). Upon establishment
of the Reserve Account, Borrower shall sign a "blocked account" letter in the
form attached hereto as Exhibit A (the "Blocked Account Letter") for delivery to
the Reserve Agent directing the Reserve Agent to disburse funds from the Reserve
Account as provided therein and in the Acknowledgment and Authorization which is
a part of the Block Agreement Letter. Lender may at its election require that
the Reserve Account be held by the Reserve Agent pursuant to a written escrow
agreement satisfactory to Lender, Borrower and their respective legal counsel.
Borrower shall be responsible for all costs and expenses of the Reserve Account,
including, without limitation, all tax filings and payments required with
respect to the Reserve Amount and any and all escrow fees and other costs
associated with establishing such third-party escrow. Borrower, in connection
therewith, hereby represents and warrants that its taxpayer identification
number is 58-2262719.
3. DISBURSEMENTS FROM RESERVE ACCOUNT. Upon ten (10) days' prior written
request from Borrower, Lender shall consent to a disbursement of funds from the
Reserve Amount to Borrower solely for payment of the costs and expenses of
tenant improvements and leasing costs associated with new leases of the Property
and rollover of then-existing tenants at the Property (collectively, the "Lease
Expenses"), provided that:
(i) no Event of Default (as such term is defined in the Security Deed)
has occurred and is continuing, and no event has occurred which, with the giving
of notice or lapse of time, or both, would constitute an Event of Default;
(ii) together with such written request, Borrower delivers to Lender
evidence that the work giving rise to Lease Expenses or the Lease Expenses for
which
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<PAGE> 3
payment is sought has been completed or paid for, together with satisfactory
copies of invoices or other evidence of the cost thereof, copies of new leases,
renewal leases or lease renewal letters, as the case may be, tenant estoppels
and attornment agreements and such other evidence as Lender may reasonably
require that the amounts requested to be paid (or reimbursed) are equal to the
amounts which have in fact been paid or incurred, and that the same are indeed
Lease Expenses;
(iii) together with such written request, Borrower delivers to Lender
evidence that all sums due and owing to contractors, subcontractors and
materialmen who have done work giving rise to Lease Expenses have been paid,
including, without limitation, lien waivers from such contractors,
subcontractors and materialmen; and
(iv) Lender's shall have confirmed to its satisfaction that the work
giving rise to such Lease Expenses to be paid has been completed and is
satisfactory.
Notwithstanding anything to the contrary contained herein, it is agreed that
Lender will not consent to disbursements from the Reserve Account more often
than once a month or for amounts of less than $100,000.00 per disbursement
request. Nothing contained herein shall, or shall be deemed to, waive any of
Borrower's obligations to pay the amounts due pursuant to the Loan Documents or
constitute a defense for Borrower's failure to make such payments, and Lender
shall have no obligation whatsoever to agree to any disbursement from the
Reserve Account to cure any of Borrower's defaults pursuant to the Loan
Documents.
4. ANNUAL BUDGET AND RECONCILIATIONS. During the term of the Loan,
regardless of whether Lender has sent notice requiring Borrower to establish the
Reserve Account and commence monthly deposits of the Reserve Amount, Borrower
shall submit to Lender no later than December 15 of each calendar year an annual
budget for tenant improvements and leasing commissions and costs for the
forthcoming year, and no later than March 30 of each year Borrower shall deliver
a statement to Lender certifying as to the amounts actually paid for tenant
improvements and leasing commissions for the preceding year, together with a
written explanation and description reconciling any discrepancies between the
proposed budget and actual expenditures.
5. LENDER'S SECURITY. The Reserve Account and the Reserve Amount are being
provided (a) to provide funds for payment of the Lease Expenses, as provided
herein, and (b) to provide Lender with additional security for the Loan and to
mitigate Lender's loss in the event of Borrower's default under the Loan
Documents. In no event shall Lender be obligated, for any reason whatsoever, to
consent to any withdrawal for or to apply all or any portion of the Reserve
Amount to cure any default of Borrower under the Loan Documents, including,
without limitation, the payment of any amounts due pursuant to the Loan
Documents. No delay on the part of Lender in exercising the rights described
herein shall constitute a waiver thereof. Borrower agrees to execute and deliver
to Lender any further assurances requested by Lender to evidence Lender's
interest in the
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<PAGE> 4
Reserve Account and the Reserve Amount. Upon any default by Borrower under this
Agreement as provided in Paragraph 6 hereof, beyond any notice and applicable
grace period, Lender shall have the right, in its sole absolute discretion, in
addition to all the rights and remedies which Lender may have under the Loan
Documents or at law or in equity, to draw down the full amount of the Reserve
Account and apply the amount so drawn down toward the Lease Expenses, the
payment of interest on the Loan and/or the repayment of the principal balance of
the Loan in the inverse order of maturity, at Lender's option.
6. DEFAULT. It shall be an "Event of Default" hereunder if (a) Borrower
fails to make the deposits into the Reserve Account as provided herein within
three (3) business days of the due date therefor, (b) upon the occurrence of an
Event of Default by Borrower under the Loan Documents as provided and described
therein, or (c) the breach by Borrower of any other term or condition of this
Agreement, subject to Borrower's right to the notice and the opportunity to cure
set forth in Section 3.01B of the Security Deed. Lender agrees that it will not
give a "Default Notice", as defined in the Blocked Account Letter, until an
Event of Default has occurred.
7. BANKRUPTCY. In the event that Borrower files for relief under Title 11
of the United States Code, as amended (the "Bankruptcy Code"), or an order of
relief is granted under the Bankruptcy Code, the following provisions shall be
applicable. Borrower enters into the following provisions in consideration of
the procedures provided in this Agreement and other good and valuable
consideration, the receipt and sufficiency of which Borrower acknowledges and,
in consideration, specifically agrees that:
(a) in the event Borrower files a petition for relief under the
Bankruptcy Code with any bankruptcy court, or is subjected to any petition under
the Bankruptcy Code which results in any order of relief under the Bankruptcy
Code, and the debtor in the proceeding wishes to use "cash collateral" as
defined in the Bankruptcy Code, then this Agreement shall, without modification,
be deemed to be a stipulation between Lender and Borrower for a "cash collateral
order" pursuant to Section 363 of the Bankruptcy Code. Borrower and Lender
hereby agree that they shall cooperate in and shall not in any way resist having
this Agreement become and be fully incorporated in, without change or
modification, a cash collateral order or stipulation immediately entered subject
to court approval, by a bankruptcy court under Section 363 of the Bankruptcy
Code and before any use of cash collateral as defined in Section 363 of the
Bankruptcy Code and that cash collateral shall only be used as provided in this
Agreement. Such order shall permit the use under Section 1121(b) of the
Bankruptcy Code, and shall incorporate all of the other terms provided by this
Agreement; provided, however, that nothing herein shall be deemed to restrict
Lender's absolute right, at any time, to seek to limit or terminate the
exclusive period under Section 112l(b) of the Bankruptcy Code or any of
Lender's other rights or remedies under the Loan Documents, the Bankruptcy Code,
this Agreement or otherwise. Borrower also agrees and acknowledges that the
-4-
<PAGE> 5
Rents and other assigned payments are and shall be deemed to be in any such
proceeding "cash collateral" as that term is defined in Section 363 of the
Bankruptcy Code.
(b) as adequate protection for the use of cash collateral, Borrower
agrees that Lender shall be deemed in the proceeding, to the extent it is
determined that Section 552(a) of the Bankruptcy Code applies to limit Lender's
interest under the Loan Documents and this Agreement, to have a continuing
security interest in the Rents and other assigned payments. As further adequate
protection for Borrower's use of the Rents and the other assigned payments,
Borrower agrees to maintain at all times an adequate and appropriate amount and
coverage of insurance covering its assets, in amounts not less than that
required under the Loan Documents, naming Lender as a loss payee as its
interests may appear.
(c) The Reserve Amount is cash collateral, and to the extent it is
used and consumed after filing or entry of any cash collateral order, Borrower
specifically agrees that it shall be collateral for a secured claim under
Section 506 of the Bankruptcy Code in the amount so used. To the extent that the
collateral securing Lender's claim in the bankruptcy proceeding is thereafter
deemed or proves to be insufficient to pay Lender's claim in full, Lender's
secured claim shall be deemed to have been inadequately protected by the
provisions of the cash collateral order, and it shall therefore have an
administrative expense claim in the proceeding with superior priority over any
and all administrative expenses of the kind specified in Sections 503(b) and
507(b) of the Bankruptcy Code which superior priority shall be equal to the
priority provided under the provisions of section 364(c)(1) of the Bankruptcy
Code over all other costs and administrative expenses incurred in the case of
the kind specified in or ordered pursuant to Sections 105, 326, 330, 331,
503(b), 506(c), 507(b), or 726 of the Bankruptcy Code and shall at all times be
senior to the rights of Borrower or any successor trustee in the resulting
bankruptcy proceeding or any subsequent proceeding under the Bankruptcy Code.
(d) If Borrower is a debtor in a proceeding under the Bankruptcy
Code, and the bankruptcy court enters a cash collateral order, then, subject to
the approval of the bankruptcy court, such cash collateral order shall provide
that if Borrower does not file a plan within the exclusive period provided by
the Bankruptcy Code, Lender shall, without the necessity of any additional
notice to the debtor or to other creditors, or any hearing or any further order
of the bankruptcy court, have immediate relief from stay under the Bankruptcy
Code Section 362 to commence or continue and complete foreclosure on the
Property, conduct and complete sale thereunder, and either purchase itself or
sell to a third party under the provisions of the Loan Documents and according
to applicable nonbankruptcy laws, and to take any other action permitted under
the Loan Documents and applicable non-bankruptcy law. Nothing contained in this
Agreement shall be deemed to in any way limit Lender's right, at any time, to
seek to limit or terminate the exclusive period under Section 1121(b) of the
Bankruptcy Code.
-5-
<PAGE> 6
(e) subject to bankruptcy court approval, Lender shall be deemed to
have the relief from the automatic stay under section 362 of the Bankruptcy Code
in order to effectuate the provisions of this Paragraph 15. As an alternative,
if Lender requests such relief, Borrower shall not object to or oppose Lender
from having immediate relief, subject to bankruptcy court approval, from
automatic stay under Section 362 of the Bankruptcy Code, such relief being
limited to modification of the stay (i) to implement the provisions of this
Agreement permitting the use of cash collateral, (ii) to permit the filing of
financing statements or other instruments and documents evidencing or continuing
Lender's interests in the Rents, and other payments assigned to Lender, and the
Leases after filing of financing statements or other instruments and documents
evidencing or continuing Lender's interests in the Rents, the other payments
assigned to Lender and the Leases or after the filing of the petition order for
relief, whichever is later, (iii) to permit Lender's application of the Rents as
provided herein, and (iv) to permit the relief provided for in clause (iii)
hereof.
(f) during the pendency of the case, any of the rights granted
hereunder or by the Loan Documents shall be confirmed as security interests or
liens, and shall be deemed present, "choate", fully-perfected and presently
fully enforceable, without the necessity of the filing of any additional
documents or commencement of proceedings otherwise required under non-bankruptcy
laws for the perfection or enforcement of security interests, with such
perfection and enforcement being binding upon Borrower and any subsequently
appointed trustee, either in Chapter 11 or under any other chapter of the
Bankruptcy Code and upon other creditors of Borrower who have or who may
hereafter extend secured or unsecured credit to Borrower.
8. NOTICES. All notices and communications required or permitted hereunder
shall be given in accordance with the Security Deed.
9. TRANSFER OF PROPERTY. Transfer of Borrower's interest in the Property
prior to the full repayment of the Loan or its satisfaction at the time of
transfer shall automatically transfer to the new owner the interest of Borrower
in the Reserve Account and the obligations of Borrower thereunder.
10. AMENDMENT. This Agreement may be amended only by a written instrument
executed by the parties hereto.
11. SUCCESSORS AND ASSIGNS; COUNTERPARTS; GOVERNING LAW. This Agreement
shall be binding upon and shall inure to the benefit of the parties hereto and
their respective successors and assigns. This Agreement may be signed in
counterparts. The provisions of this Agreement shall be governed and construed
in accordance with the laws of the State of Georgia.
12. BORROWER'S OBLIGATIONS NOT MODIFIED. Nothing contained in this
Agreement shall be deemed to be in substitution for Borrower's
performance of any of the
-6-
<PAGE> 7
terms and conditions of the Loan Documents or be deemed to reduce, diminish or
be in lieu of any of the right, remedies or privileges of Lender pursuant to the
Loan Documents and/or at law or in equity, all of which are hereby expressly
reserved.
13. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original, and all such
counterparts together shall constitute but one and the same Agreement.
(Signatures Begin on Next Page)
-7-
<PAGE> 8
[SIGNATURE PAGE TO RESERVE ACCOUNT AGREEMENT WITH NEW YORK LIFE INSURANCE
COMPANY]
IN WITNESS WHEREOF, this Agreement has been executed on behalf of Borrower and
Lender as of the date first above written.
BORROWER:
OVERSEAS PARTNERS (AFC), INC.,
a Georgia corporation
By:/s/ Michael J. Molletta
---------------------------
Title: VP
------------------------
Attest:/s/ Elise R. Kitchens
-----------------------
Title: Paralegal
------------------------
(Corporate Seal)
[SIGNATURES CONTINUED ON NEXT PAGE]
<PAGE> 9
LENDER:
NEW YORK LIFE INSURANCE
COMPANY, a New York mutual
insurance company
By: /s/ Patricia J. Hudson
------------------------------
Title: Real Estate Vice President
---------------------------
-9-
<PAGE> 10
EXHIBIT A
FORM OF BLOCKED ACCOUNT LETTER
-10-
<PAGE> 11
[Letterhead of Borrower]
Bank
Bank Address
Re: Account No.
------------------
Ladies and Gentlemen:
Reference is made to that certain Reserve Account Agreement dated as of
October ,1996, as amended from time to time (the "Reserve Account
Agreement"), by and between the undersigned, as Borrower thereunder, and New
York Life Insurance Company (the "Lender").
Please be advised that effective the date hereof, we have transferred to
the Lender exclusive dominion and control of our account No.
(the "Account") maintained with you, whether pursuant to the terms of a separate
blocked account agreement between you and the undersigned, or otherwise.
We irrevocably instruct you to make all payments or investments to be made
by you out of or in connection with the Account solely in accordance with the
instructions of the Lender given in accordance with the attached Acknowledgment
and Authorization Letter. In this regard, we wish to note that the Lender in the
accompanying Acknowledgment and Authorization has authorized you to continue to
accept instructions from us with Lender's consent, until the Lender sends you a
Default Notice, as that term is defined in said Acknowledgment and
Authorization.
Please be further advised that, subject to the immediately preceding
paragraph, the Lender shall be irrevocably entitled to exercise any and all
rights in respect of or in connection with the Account, including, without
limitation, the right to specified when withdrawals, transfers and payments are
to be made out of or in connection with, or investments are to be made in
connection with, the Account, all to the complete and absolute exclusion of us.
All funds deposited into or securities or other investments held in the
Account will not be subject to deduction, set-off, banker's lien or any other
right in favor of you or any other person other than the Lender, except that you
may (i) set-off against the Account the face amount of any check deposited in
and credited to such Account which is subsequently returned for any reason, and
(ii) debit or otherwise deduct from the Account the face amount of any check
paid by you prior to your receipt from the Lender of the revocation of the
Acknowledgment and Authorization that had not yet been so debited or deducted.
Your compensation for providing the
-1-
<PAGE> 12
services contemplated herein shall be as mutually agreed between you and us from
time to time, and we will continue to pay such compensation.
Please acknowledge your agreement to the terms of this letter by signing in
the space provided below on the two duplicate originals enclosed herewith and
send one such copy to the Lender at New York Life Insurance Company, 51 Madison
Avenue, New York, New York, 10010, Attention: Senior Vice President, Mortgage
Finance Department, Loan No. 371-9901 and send the other signed copy to the
undersigned, addressed to Overseas Partners Capital Corp., 115 Perimeter Center
Place, Suite 940, Atlanta, Georgia 30346-1223.
Thank you for your assistance in this matter.
Very truly yours,
BORROWER:
OVERSEAS PARTNERS (AFC), INC.,
a Georgia corporation
By:
---------------------------
Name:
----------------------
Title:
---------------------
Acknowledged and agreed
to as of this day of
---
, .
- --------------------- -----
[Bank]
By:
------------------------
Title:
------------------
-2-
<PAGE> 13
ACKNOWLEDGMENT AND AUTHORIZATION
TO BLOCKED ACCOUNT LETTER
Reference is made to the foregoing blocked account letter dated ,
(the "Blocked Account Letter") from Overseas Partners (AFC), Inc. (the
"Borrower") to (the "Depository Institution"), and accepted by
the Depository Institution on ,19 .
New York Life Insurance Company (the "Lender") hereby acknowledges the
transfer to the Lender by the Borrower of exclusive dominion and control of the
Account. Pursuant to the third paragraph of the Blocked Account Letter, the
Lender hereby authorizes the Depository Institution to continue to accept
instructions from the Borrower, with Lender's written consent, for the
withdrawals, transfer or payment of funds from, or investments with respect to,
the Account unless and until the Lender notifies the Depository Institution in
writing (each such notice being sometimes referred to as a "Default Notice")
that (a) an Event of Default (as defined in the Reserve Account Agreement dated
October , 1996 between Borrower and Lender), and (b) the Lender is terminating
or suspending the Borrower's rights with respect to the Account. Upon receipt
and effectiveness of the Default Notice (as described in the following
sentence), the Depository Institution shall cease taking instructions from the
Borrower with respect to the Account, and shall take instructions only from the
Lender with respect thereto, until written notice from the Lender to the
contrary. Any Default Notice shall be effective as of the opening of business on
the next succeeding business day if received by Depository Institution before
2:00 p.m. (local time), and if not received by such time, as of the opening of
business on the second business day following the date of receipt. The Lender
agrees to reimburse the Depository Institution for all reasonable costs and
expenses incurred by Depository Institution in connection with the performance
of the terms of the Blocked Account Letter after the date on which the Lender
gives the Depository Institution the written notice described in the preceding
sentence, if such costs and expenses are not paid or reimbursed by the Borrower
(although any such payment by the Lender shall not diminish or impair any rights
of the Lender to recover such sums from the Borrower).
Given this day of , .
Very truly yours,
NEW YORK LIFE INSURANCE COMPANY
By:
----------------------------
Title:
----------------------
Acknowledged and agreed
to as of this day of
----
, .
- ------------------- ------
[Bank]
By:
------------------------
Title:
------------------
-3-
<PAGE> 1
EXHIBIT 10.ww
SIDE LETTER AGREEMENT
WAIVING TAX AND INSURANCE DEPOSITS
October 23, 1996
RE: Loan No. 371-9901
Property: Atlanta Financial Center
3333, 3343 and 3353 Peachtree Road, N.E.
Atlanta, Fulton County, Georgia
Dear Overseas Partners (AFC), Inc.:
With reference to the captioned First Mortgage Loan in the principal amount
of $79,700,000.00 made by this Company to OVERSEAS PARTNERS (AFC), INC.
(Borrower) on October 23, 1996 and, in accordance with your request, this is to
advise, subject to the conditions set forth below, that this Company ("Lender")
agrees to waive the obligations and requirements imposed upon Borrower, pursuant
to section 1.04 Escrow Deposits of the Deed to Secure Debt, Assignment of Leases
and Rents and Security Agreement (the "Security Deed") securing the loan, for
the payment to Lender each month of tax and insurance deposits. This waiver
shall continue in effect until (1) an Event of Default (as defined in the
Security Deed) has occurred under the Promissory Note, the Security Deed, or any
other loan instrument, or (2) the property covered by the Security Deed has been
conveyed or alienated by you contrary to the terms of the Security Deed (other
than a transfer of all the outstanding voting stock of Borrower to a wholly
owned direct subsidiary of Overseas Partners Capital Corp., a Delaware
corporation), it being acknowledged by you that this consent and waiver is
"personal" to Overseas Partners (AFC), Inc.
Further, the within consent and waiver is also expressly conditioned that
(1) you shall pay all real-estate taxes, assessments and similar charges as they
become due and before they become delinquent, and (2) you pay all insurance
premiums at least ten (10) days before the expiration date of said policy or
policies, and (3) at least ten (10) days before delinquency or expiration dates,
as the case may be, you submit to the Real Estate Department of this Company
official receipts evidencing the payment of such real estate taxes, assessments
and similar charges and receipts for payment of insurance premiums.
Upon an Event of Default, Lender, in its sole discretion, may revoke the
waiver hereby granted and thereafter require that said monthly deposits be
deposited in an interest bearing escrow account at a bank or financial
institution satisfactory to Lender (with interest credited to Borrower and added
to and becoming a part of such escrow deposits),
<PAGE> 2
and held in accordance with a written escrow agreement satisfactory to Lender
and its legal counsel. Until said escrow agreement is executed and delivered,
such monthly deposits shall not be held in an interest bearing account and shall
be held by Lender in accordance with the provisions of the Security Deed. Any
and all escrow fees and other costs associated with establishing such
third-party escrow shall be borne by Borrower and shall be deducted from the
interest earned on the FUNDS in such escrow account.
The waivers and consents hereby granted extend only to the matters set
forth and under the conditions and limitations herein stated, and such waivers
and consents are not intended to affect the rights of the undersigned to
exercise any power or right it may have under the Security Deed or the other
loan instruments with respect to any of the other provisions contained therein.
Prior to any sale or transfer by Lender of the captioned loan or any
interest therein, Lender will disclose to such transferee the terms and
provisions of this letter, and any such sale or transfer shall be made subject
to the terms and provisions of this letter.
Please acknowledge your receipt and agreement to the foregoing by signing a
copy hereof in the space provided and returning the same to the undersigned.
Very truly yours,
NEW YORK LIFE INSURANCE COMPANY
By: PATRICIA J HUDSON
---------------------------------
Name: PATRICIA J HUDSON
----------------------------
Title: Real Estate Vice President
---------------------------
-2-
<PAGE> 3
[ACKNOWLEDGEMENT PAGE TO SIDE LETTER AGREEMENT WAIVING TAX AND INSURANCE
DEPOSITS]
Receipt and Agreement Hereby
Acknowledged as of the 23rd day
of October, 1996.
OVERSEAS PARTNERS (AFC), INC.,
a Georgia corporation
By: /s/ Michael J. Molletta
---------------------------
Title: VP
------------------------
-3-
<PAGE> 1
EXHIBIT 10.xx
SIDE LETTER AGREEMENT
REGARDING AUDIT CERTIFICATION
October 23, 1996
RE: Loan No. 371-9901
Property: Atlanta Financial Center
3333, 3343 and 3353 Peachtree Road, N.E.
Atlanta, Fulton County, Georgia
Dear Overseas Partners (AFC), Inc.:
With reference to the captioned First Mortgage Loan in the principal amount
of $79,700,000.00 made by this Company to OVERSEAS PARTNERS (AFC), INC.
(Borrower) on October 23, 1996 and, in accordance with your request, this is to
advise, subject to the conditions set forth below, that this Company ("Lender")
agrees to waive in part the obligations and requirements imposed upon Borrower
pursuant to section 1.06.A Financial information/Audit of the Deed to Secure
Debt, Assignment of Leases and Rents and Security Agreement (the "Security
Deed") securing the loan, for the periodic delivery to Lender of an audit (as
described in said section section 1.06.A) certified by an independent certified
public accountant, so long as, in exchange for such waiver, the chief financial
officer of Borrower shall so certify such audit(s) as would otherwise be
required to be certified by an independent certified public accountant. This
waiver shall continue in effect until (1) an Event of Default (as defined in the
Security Deed) has occurred under the Promissory Note, the Security Deed, or any
other loan instrument, or (2) the property covered by the Security Deed has been
conveyed or alienated by you contrary to the terms of the Security Deed (other
than a transfer of all the outstanding voting stock of Borrower to a wholly
owned direct subsidiary of Overseas Partners Capital Corp., a Delaware
corporation), it being acknowledged by you that this consent and waiver is
"personal" to Overseas Partners (AFC), Inc.
Further, the within consent and waiver is also expressly conditioned that
the required audit(s) are in fact so certified by the chief financial officer OF
Borrower.
The waivers and consents hereby granted extend only to the matters set
forth and under the conditions and limitations herein stated, and such waivers
and consents are not intended to affect the rights of the undersigned to
exercise any power or right it may have under the Security Deed or the other
loan instruments with respect to any of the other provisions contained therein.
<PAGE> 2
Prior to any sale or transfer by Lender of the captioned loan or any
interest therein, Lender will disclose to such transferee the terms and
provisions of this letter, and any such sale or transfer shall be made subject
to the terms and provisions of this letter.
Please acknowledge your receipt and agreement to the foregoing by signing a
copy hereof in the space provided and returning the same to the undersigned.
Very truly yours,
NEW YORK LIFE INSURANCE COMPANY
By: PATRICIA J HUDSON
---------------------------------
Name: PATRICIA J HUDSON
----------------------------
Title: Real Estate Vice President
---------------------------
-2-
<PAGE> 3
[ACKNOWLEDGEMENT PAGE TO SIDE LETTER AGREEMENT REGARDING AUDIT CERTIFICATION]
Receipt and Agreement Hereby
Acknowledged as of the 23rd day
of October, 1996.
OVERSEAS PARTNERS (AFC), INC.,
a Georgia corporation
By: /s/ Michael J. Molletta
---------------------------
Title: VP
------------------------
<PAGE> 1
EXHIBIT 10.yy
ONE TIME TRANSFER LETTER
October 23, 1996
OVERSEAS PARTNERS (AFC), INC.
115 Perimeter Center Place, Suite 940
Atlanta, Georgia 30346
RE: Loan no. 371-9901("Loan")
Property: Atlanta Financial Center
3333, 3343 and 3353 Peachtree Road, N.E.
Atlanta, Fulton County, Georgia
Gentlemen and Ladies:
With reference to the Loan in the principal amount of $79,700,000.00 made
by New York Life Insurance Company ("Lender") to OVERSEAS PARTNERS (AFC), INC.
("Borrower") on October 23, 1996 and in accordance with your request, this is to
advise, that subject to the conditions set forth below and notwithstanding the
restriction in section 1.11 of the Deed to Secure Debt, Assignment of Leases and
Rents and Security Agreement (the "Security Deed") regarding what constitutes a
transfer of the Secured Property (as such term is defined in the Security Deed),
Lender shall permit Borrower to transfer or sell the Secured Property one time,
and one time only, subject to Lender's or Lender's successor's or assign's prior
written consent, to an entity whose financial condition, office building
ownership, management and investment experience and business integrity are
acceptable to Lender or Lender's successor(s) or assign(s) in its sole
discretion and provided that at the time of such transfer:
(i) no event has occurred which, with the giving of notice or lapse of
time, or both, would constitute an Event of Default (as such term is defined in
the Security Deed);
(ii) at the time of the conveyance a fee equal to one percent (1%) of the
then outstanding principal balance of the Loan is paid to Lender;
(iii) the proposed purchaser's equity in the Secured Property must at the
time of its acquisition of the Secured Property be no less than thirty-five
percent of the then-current value of the Secured Property; and
(iv) all costs and expenses incurred by Lender (including reasonable legal
fees) in connection with this transaction shall be paid by Borrower.
<PAGE> 2
Further, in addition to the foregoing and also in accordance with your
request, this is to advise, that subject to the conditions set forth
below and notwithstanding the restriction in Section 1.11.B(1) of the Security
Deed regarding what constitutes a transfer of the Secured Property, a transfer
of all of the outstanding voting stock of Borrower to a wholly owned direct
subsidiary of Overseas Partners Capital Corp., a Delaware corporation, shall
not be deemed a Transfer (as defined in the Security Deed).
At our sole option, the Loan will become immediately due and payable upon
transfer as provided in the Security Deed, except as provided in this letter.
Borrower hereby acknowledges that this consent and waiver is non-transferable
and non-assignable and therefore, "personal" to OVERSEAS PARTNERS (AFC), INC.
The consent hereby granted extends only to the matters set forth herein and
under the conditions and limitations herein stated, and such consent is not
intended to affect the rights of the Lender to exercise any power or right it
may have under the Security Deed or the other loan documents with respect to any
of the other provisions contained therein.
Prior to any sale or transfer by Lender of the Loan or any interest
therein, Lender will disclose to such transferee the terms and provisions of
this letter, and any such sale or transfer shall be made subject to the terms
and provisions of this letter.
Please acknowledge your receipt and agreement to the foregoing by signing a
copy hereof in the space provided and returning the same to the undersigned.
Very truly yours,
NEW YORK LIFE INSURANCE COMPANY
By: PATRICIA J. HUDSON
------------------------------
Name: PATRICIA J. HUDSON
----------------------------
Title: Real Estate Vice President
---------------------------
<PAGE> 3
[ACKNOWLEDGEMENT PAGE TO ONE TIME TRANSFER LETTER]
Receipt and Agreement
hereby acknowledged
as of the 23rd day
of October, 1996.
OVERSEAS PARTNERS (AFC), INC.,
a Georgia corporation
By: /s/ Michael J. Molletta
---------------------------
Title: VP
------------------------
-3-
<PAGE> 1
EXHIBIT 10.zz
GUARANTY OF PAYMENT
RELATING TO LEASING
October 23, 1996
WHEREAS, NEW YORK LIFE INSURANCE COMPANY,a New York mutual insurance
company (the "Lender") has agreed to make a loan to OVERSEAS PARTNERS (AFC),
INC., a Georgia corporation (the "Borrower") in the principal sum of
SEVENTY-NINE MILLION SEVEN HUNDRED THOUSAND and NO/100 DOLLARS ($79,700,000.00)
(the "Loan"), which Loan will be (a) evidenced by and payable in accordance with
the provisions of that certain promissory note dated of even date herewith in
the principal sum of $79,700,000.00 given by the Borrower to the Lender (as the
same may be from time to time amended, the "Note") and (b) secured by that
certain Deed to Secure Debt, Assignment of leases and Rents and Security
Agreement dated of even date herewith given by the Borrower to Lender with
respect to certain premises located in Fulton County, Georgia, as more
particularly described therein (the "Premises"), and intended to be duly
recorded in Fulton County, Georgia (as the same may be from time to time
amended, the "Security Deed"); and
WHEREAS, the Lender is willing to make the Loan only if the undersigned
party or parties (hereinafter referred to, jointly and severally, as the
"Guarantor") executes and delivers this Guaranty and guarantees payment to the
Lender of the Debt (as herein defined) in the manner hereinafter provided;
WHEREAS, Guarantor will directly benefit from the making of the Loan by the
Lender to the Borrower;
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and legal sufficiency of which are hereby
acknowledged, and in order to induce the Lender to make the Loan to the
Borrower, Guarantor hereby acknowledges, agrees and confirms that all of the
above recitals are true, correct and complete and hereby guarantees, absolutely,
irrevocably and unconditionally, to the Lender the full and timely payment of
the Debt and covenants and agrees with the Lender as follows:
1. DEFINITIONS. The term "Debt" as used in this Guaranty shall mean the
following:
(a) any and all costs, expenses and fees for the following matters
relating to leases of all or any portion of the Premises (even though the
actual payment of such amounts may occur or be due and payable after
Borrower no longer holds legal or beneficial title to the Premises), after
deduction for the
<PAGE> 2
amount of any monies held pursuant to the Reserve Account Agreement between
Borrower and Lender of even date herewith or otherwise realized by Lender
From funds held pursuant to such Reserve Account Agreement:
(i) all initial tenant improvements required by leases to be paid for
by landlord to prepare initial space for new occupancy by tenants
pursuant to leases entered into before or during Borrower's
ownership of legal or beneficial title to the Premises;
(ii) all leasing commissions required to be paid by landlord with
respect to the initial term (but not any renewal, extension or
expansion thereof) of new leases entered into before or during
Borrower's ownership of legal or beneficial title to the
Premises;
(iii) all tenant improvements required by leases to be paid for by
landlord as the result of any lease extension or renewal which is
exercised by, or effected with respect to, any tenant during
Borrower's ownership of legal or beneficial title to the
Premises, but only such tenant improvements as are required to be
paid for by landlord prior to the expiration of the then-existing
term or with respect to the applicable extension or renewal term;
(iv) all leasing commissions required to be paid by landlord as a
result of any lease extension or renewal which is exercised by,
or effected with respect to, any tenant during Borrower's
ownership of legal or beneficial title to the Premises, but only
such commissions as are payable with respect to the time periods
for which such leases are extended or renewed (and not any
further extension, renewal or expansion not exercised during
Borrower's ownership);
(v) all initial tenant improvements required by leases to be paid for
by landlord to prepare initial expansion space for new occupancy
by tenants as a result of any lease expansion which is exercised
by, or - effected with respect to, any tenant during Borrower's
ownership of legal or beneficial title to the Premises;
(vi) all leasing commissions required to be paid by landlord with
respect to the term of any lease expansion which is exercised by,
or effected with respect to, any tenant during Borrower's
ownership of legal or beneficial title to the Premises (but not
any further renewal, extension or expansion thereof not exercised
during Borrower's ownership); and
(b) any and all costs and expenses, including without limitation
reasonable attorneys' fees, incurred by Lender in enforcing, defending or
protecting
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its rights, remedies and recourses hereunder, whether or not suit is filed
in connection with same, or in connection with Guarantor or any party
comprising Guaranty becoming a party to a voluntary or involuntary federal
or state bankruptcy, insolvency or other proceeding.
2. GUARANTY. Guarantor hereby absolutely and unconditionally guarantees
unto Lender the full and prompt payment when due, and agrees to pay to Lender
immediately upon demand after Borrower's failure to pay all or any portion of
the Debt.
3. FINANCIAL CONDITION AND INFORMATION. Guarantor hereby represents and
warrants that all financial statements of Guarantor heretofore delivered to the
Lender by or on behalf of Guarantor are true and correct in all material
respects and fairly present the financial condition of Guarantor as of the
respective dates thereof, and no material adverse change has occurred in the
financial conditions reflected therein since the respective dates thereof. In
addition, Guarantor covenants that so long as any portion of the Debt remains
outstanding and unpaid, Guarantor will furnish Lender annually, within one
hundred twenty (120) days next following the fiscal year of the Guarantor, with
a complete copy of an annual financial statement with respect to Guarantor
prepared in accordance with generally accepted accounting principles
consistently applied and certified by the chief financial officer of Guarantor
to be true, correct and complete, and otherwise in form and substance reasonably
satisfactory to Lender. Together with each such financial statement, Guarantor
shall furnish to Lender a certificate signed by a duly authorized representative
of such Guarantor certifying on the date thereof that to the best of such
representative's knowledge either that there does or does not exist an event
which constitutes, or which upon notice or lapse of time or both would
constitute, an Event of Default under this Agreement and, if a default or Event
of Default exists, the nature thereof and the period of time it has existed (a
"Certification"). Guarantor shall furnish to Lender, within ten (10) days after
request, such further detailed financial and other information (including, but
not limited to, financial statements) as may be requested by Lender with respect
to Guarantor, as of a date not earlier than that specified by Lender in such
request, together with a Certification with respect thereto.
4. SEPARATE OBLIGATION. Guarantor hereby expressly agrees that this
Guaranty is independent of, and in addition to, all collateral granted, pledged
or assigned under the Note, Security Deed and other documents and instruments
given to evidence or secure the Loan, and Guarantor hereby consents that from
time to time, before or after any default by the Borrower, with or without
further notice to or assent from Guarantor:
(a) any security at any time held by or available to the Lender for
any obligation of the Borrower, or any security at any time held by or
available to the Lender for any obligation of any other person or party
secondarily or otherwise liable for all or any portion of the Debt,
including any guarantor of the Debt, or any obligations of Guarantor
hereunder, may be settled, exchanged, surrendered or released and the
Lender may fail to set off and may release, in whole or in part, any
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balance of any deposit account or credit on its books in favor of the
Borrower, or any such other person or party;
(b) any obligation of the Borrower, or of any such other person or
party, may be changed, altered, renewed, extended, continued, accelerated,
surrendered, compromised, settled, waived or released in whole or in part,
or any default with respect thereto waived; and
(c) the Lender may extend further credit in any manner whatsoever to
the Borrower, and generally deal with the Borrower or any of the above
mentioned security, deposit account, credit on its books or other person or
party as the Lender may see fit;
and Guarantor shall remain bound under this Guaranty, without any loss of rights
by the Lender and without affecting the liability of Guarantor, notwithstanding
any such exchange, surrender, release, change, alteration, renewal, extension,
continuance, compromise, waiver, inaction, extension of further credit or other
dealing.
5. WAIVER. Guarantor hereby waives:
(a) notice of acceptance of this Guaranty and of the making of the
Loan or any advance thereof by the Lender to the Borrower;
(b) presentment and demand for payment of the Debt or any portion
thereof
(c) protest and notice of dishonor or default to Guarantor or to any
other person or party with respect to the Debt or any- portion thereof
(d) all other notices to which Guarantor might otherwise be entitled
except as specified in this Guaranty; and
(e) any demand under this Guaranty.
In addition, Guarantor hereby waives, and agrees to waive, the benefits of any
provision of law requiring that Lender exhaust any right or remedy, or take any
action, against the Borrower, any Guarantor, any other person and/or property
including but not limited to the provisions of the Official Code of Georgia
Section 10-7-24 and Official Code of Georgia Section 11-3-601, as amended, or
otherwise.
6. EVENT OF DEFAULT. If Guarantor violates any provision of this Guaranty
(and such violation is not cured within five (5) business days after notice from
Lender to Guarantor thereof provided that Guarantor will not be entitled to any
notice of default under this clause more than four (4) times during the term
hereof); then, and in such event,
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the Lender may exercise any and all rights and remedies it may have at law, in
equity or as provided herein.
7. GUARANTY OF PAYMENT. This is a Guaranty of payment and not of collection
and Guarantor further waives any right to require that any action be brought
against the Borrower or any other person or party or to require that resort be
had to any security or to any balance of any deposit account or credit on the
books of the Lender in favor of the Borrower or any other person or party. Any
payment on account of or reacknowledgment of the Debt by the Borrower, or any
other party liable therefor shall be deemed to be taken or made on behalf of
Guarantor and shall serve to start anew the statutory period of limitations
applicable to the Debt.
8. SUCCESSORS AND ASSIGNS. Each reference herein to the Lender shall be
deemed to include its successors and assigns, in whose favor the provisions of
this Guaranty shall also inure. Each reference herein to Guarantor shall be
deemed to include the heirs, executors, administrators, legal representatives,
successors and assigns (as applicable) of Guarantor, all of whom shall be bound
by the provisions of this Guaranty, provided, however, that Guarantor shall in
no event nor under any circumstance have the right, without obtaining the prior
written consent of the Lender, to assign or transfer Guarantor's obligations and
liabilities under this Guaranty, in whole or in part, to any other person, party
or entity.
9. MISCELLANEOUS. The term "Guarantor" as used herein shall, if this
Guaranty is signed by more than one party, unless otherwise stated herein, mean
the "Guarantor and, if Guarantor consists of more than one party, each of them"
and each undertaking herein contained shall be their joint and several
undertaking. If there is more than one party comprising Guarantor, the Lender
may proceed against none, one or more of Guarantor at one time or from time to
time as it sees fit in its sole and absolute discretion. If any party hereto
shall be a partnership, the agreements and obligations on the part of Guarantor
herein contained shall remain in force and application notwithstanding any
changes in the individuals composing the partnership and the term "undersigned"
shall include any altered or successive partnerships but the predecessor
partnerships and their partners shall not thereby be released from any
obligations or liability hereunder_ If any party hereto shall be a corporation,
the agreements and obligations on the part of Guarantor herein contained shall
remain in force and application notwithstanding the merger, consolidation,
reorganization or absorption thereof, and the term "undersigned" shall include
such new entity, but the old entity shall not thereby be released from any
obligations or liabilities hereunder.
10. DELAY NOT WAIVER. No delay on the part of the Lender in exercising any
right or remedy under this Guaranty or failure to exercise the same shall
operate as a waiver in whole or in part of any such right or remedy. No notice
to or demand on Guarantor shall be deemed to be a waiver of the obligation of
Guarantor or of the right of the Lender to take further action without notice or
demand as provided in this Guaranty.
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<PAGE> 6
No course of dealing between Guarantor and the Lender shall change, modify or
discharge, in whole or in part, this Guaranty or any obligations of Guarantor
hereunder.
11. MODIFICATION IN WRITING ONLY. This Guaranty may only be modified,
amended, changed or terminated by an agreement in writing signed by the Lender
and Guarantor. No waiver of any term, covenant or provision of this Guaranty
shall be effective unless given in writing by the Lender and if so given by the
Lender shall only be effective in the specific instance in which given. The
execution and delivery hereafter to the Lender by Guarantor of a new instrument
of guaranty or any reaffirmation of guaranty, of whatever nature, shall not
terminate, supersede or cancel this instrument, unless expressly so provided
therein, and all rights and remedies of the Lender hereunder or under any
instrument of guaranty hereafter executed and delivered to the Lender by
Guarantor shall be cumulative and may be exercised singly or concurrently.
12. ABSOLUTE AND UNCONDITIONAL OBLIGATIONS. Guarantor acknowledges that
this Guaranty and Guarantor's obligations under this Guaranty are and shall at
all times continue to be absolute, irrevocable and unconditional in all
respects, and shall at all times be valid and enforceable irrespective of any
other agreements or circumstances of any nature whatsoever which might otherwise
constitute a defense to this Guaranty and the obligations of Guarantor under
this Guaranty or the obligations of any other person or party (including,
without limitation, the Borrower) relating to this Guaranty or the obligations
of Guarantor hereunder or otherwise with respect to the Debt, including bur not
limited to, a foreclosure of the Security Deed or the realization upon any other
collateral given, pledged or assigned as security for all or any portion of the
Debt, or the filing of a petition under Title 11 of the United States Code with
regard to the Borrower or Guarantor, or the commencement of an action or
proceeding for the benefit of the creditors of the Borrower or Guarantor, or the
obtaining by the Lender of title to, respectively, the Premises or to any
collateral given, pledged or assigned as security for the Debt by reason of the
foreclosure or enforcement of the Security Deed or any other pledge or security
agreement, the acceptance of a deed or assignment in lieu of foreclosure or
sale, or otherwise. This Guaranty sets forth the entire agreement and
understanding of the Lender and Guarantor with respect to the matters covered by
this Guaranty, and Guarantor acknowledges that no oral or other agreements,
understandings, representations or warranties exist with respect to this
Guaranty or with respect to the obligations of Guarantor under this Guaranty,
except those specifically set forth in this Guaranty.
13. CONSENT, CAPACITY AND AUTHORITY. If Guarantor or any party comprising
Guarantor is a corporation, partnership or association, as to such entity, this
Guaranty has been validly authorized, executed and delivered by such entity.
Such entity represents and warrants to the Lender that it has the corporate or
partnership, as applicable, power to do so and to perform its obligations under
this Guaranty and this Guaranty constitutes the legally binding obligation of
Guarantor fully enforceable against such entity in accordance with the terms
hereof. Guarantor further represents and warrants to the Lender that:
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(a) neither the execution and delivery of this Guaranty nor the
consummation of the transactions contemplated hereby nor compliance with the
terms and provisions hereof will violate any applicable provision of law or any
applicable regulation or other manifestation of governmental action; and
(b) all necessary approvals, consents, licenses, registrations and
validations of any governmental regulatory body, including, without limitation,
approvals required to permit Guarantor to execute and carry out the provisions
of this Guaranty, for the validity of the obligations of Guarantor hereunder and
for the making of any payment or remittance of any funds required to be made by
Guarantor under this Guaranty, have been obtained and are in full force and
effect.
14. NO CONTRIBUTION RIGHT. Notwithstanding any payments made by Guarantor
pursuant to the provisions of this Guaranty, Guarantor shall not seek to enforce
or collect upon any rights which it now has or may acquire against the Borrower
either by way of subrogation, indemnity, reimbursement or contribution for any
amount paid under this Guaranty or by way of any other obligations whatsoever of
the Borrower to Guarantor, until the entire Debt and expenses in connection
therewith shall have been paid in full, nor file, assert or receive payment on
any claim, whether now existing or hereafter arising; against the Borrower in
the event of the commencement of a case by or against the Borrower under Title
11 of the United States Code. In the event either a petition is filed under said
Title 11 of the United States Code with regard to the Borrower or an action or
proceeding is commenced for the benefit of the creditors of the Borrower, this
Guaranty shall at all times thereafter remain effective in regard to any
payments or other transfers of assets to the Lender received from or on behalf
of the Borrower prior to notice of termination of this Guaranty and which are or
may be held violable on the grounds of preference or fraud, whether or not the
Debt has been paid in full.
15. NOTICE TO PARTIES. All notices and demands hereunder shall be in
writing and shall be deemed to have been sufficiently given or served for all
purposes when presented personally or sent by certified or registered mail with
return receipt requested or by generally recognized overnight delivery service,
addressed to the parties at the addresses stated below, or at such other address
as either party may hereafter notify the other in writing as aforesaid:
Guarantor: OVERSEAS PARTNERS CAPITAL CORP.
115 Perimeter Center Place, Suite 940
Atlanta, Georgia 30346
Attn: Legal Department
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with a courtesy copy to: OVERSEAS PARTNERS CAPITAL CORP.
Craig Appin House
P.O. Box HM1581
8 Wesley Street
Hamilton HM GX
Bermuda
Att.: Thomas E. Butler, Esq.
Lender: NEW YORK LIFE INSURANCE.
COMPANY
51 Madison Avenue
New York, New York 10010
Attn: Senior Vice President
Mortgage Finance Department
Service of any such notice or demand so made shall be deemed effective on the
day of actual delivery as shown by the addressee's return receipt or the
expiration of forty-eight (48) hours after the date sent by generally recognized
overnight delivery service or mailed, whichever is the earlier in time, except
that service of any notice of default or notice of sale provided or required by
law shall, if mailed, be deemed effective on the date of mailing.
16. GOVERNING LAW. This Guaranty is, and shall be deemed to be, a contract
entered into under and pursuant to the laws of the State of Georgia.
17. JURISDICTION. Guarantor hereby agrees that the venue of any litigation
arising in connection with the Debt or in respect of any of the obligations of
Guarantor under this Guaranty, to the extent permitted by law, may at the
election of lender be in Fulton County, Georgia, Guarantor hereby waiving all
objections thereto. Guarantor agrees to submit to personal jurisdiction in the
State of Georgia in any action or proceeding arising out of this Guaranty.
Guarantor hereby agrees and consents that without limiting other methods of
obtaining jurisdiction, personal jurisdiction over Guarantor in any such action
or proceeding may be obtained within or without the jurisdiction of any court
located in Georgia and that any process or notice of motion or other application
to any such court in connection with any such action or proceeding may be served
upon Guarantor by registered or certified mail to or by personal service at the
last known address of Guarantor, whether such address be within or without the
jurisdiction of any such court.
18. WAIVER OF SET OFF, ETC. Guarantor absolutely, unconditionally and
irrevocably waives any and all right to assert or interpose any defense, setoff,
counterclaim or crossclaim of any nature whatsoever with respect to this
Guaranty of the obligations of Guarantor hereunder otherwise with respect to the
Loan in any action or preceding brought by
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the Lender to collect the Debt, or any portion thereof, or to enforce the
obligations of Guarantor under this Guaranty.
19. RECOURSE OBLIGATION. No exculpatory provisions which may be contained
in the Note or in any other document evidencing or securing the Note shall in
any event or under any circumstances be deemed or construed to modify, qualify,
or affect in any manner whatsoever the obligations and liabilities of Guarantor
under this Guaranty.
20. UNCONDITIONAL LIABILITY. The liability of Guarantor shall. not be
released, diminished, impaired, reduced or adversely affected by the invalidity,
illegality or unenforceability of all or part of the Loan, or any document or
agreement executed in connection with the Loan, for any reason whatsoever,
including without limitation the fact that (I) the Loan, or any part thereof,
exceeds the amount permitted by law, (ii) the act of creating the Loan or any
part thereof is ultra vires, (iii) the officers or representatives executing the
Note or the other documents evidencing or securing the Loan or otherwise
creating the Loan acted in excess of their authority, (iv) the Loan violates
appli cable usury laws, (v) the Borrower has valid defenses, claims or offsets
(whether at law, in equity or by agreement) which render the Debt or the Loan
wholly or partially uncollectable from the Borrower, (vi) the creation,
performance or repayment of the Loan (or the execution, delivery and performance
of any document or instrument representing part of the Loan or executed in
connection with the Loan, or given to secure the repayment of the Loan) is
illegal, uncollectable or unenforceable, or (vii) the Note or any of the other
documents evidencing or securing the Loan have been forged or otherwise are
irregular or not genuine or authentic, it being agreed that Guarantor shall
remain liable hereon regardless of whether the Borrower or any other person be
found not liable on the Loan or any part thereof for any reason.
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[SIGNATURE PAGE TO GUARANTY OF PAYMENT RELATING TO LEASING]
IN WITNESS WHEREOF, Guarantor has duly executed this Guaranty under seal
the day and year first above set forth.
GUARANTOR:
OVERSEAS PARTNERS CAPITAL
CORP., a Delaware corporation
By: /s/ Bruce M. Barone
--------------------------
Title: President & CEO
-----------------------
Attest:/s/ Elise R. Kitchens
----------------------
Title: Paralegal
-----------------------
(Corporate Seal)
<PAGE> 1
EXHIBIT 10.aaa
PURCHASE AND SALE AGREEMENT
THIS PURCHASE AND SALE AGREEMENT (the "Agreement") is made as of the 24th
day of December, 1996 (the "Effective Date"), by and between 333 WACKER DRIVE
LIMITED PARTNERSHIP, an Illinois limited partnership ("Seller"), having its
principal office at 455 North Cityfront Plaza Drive, Chicago, Illinois 60611 and
OVERSEAS PARTNERS CAPITAL CORP., a Delaware corporation ("Purchaser"), having an
office at 115 Perimeter Center Place, Atlanta, Georgia 30346.
WITNESSETH:
ARTICLE I
PURCHASE AND SALE
1.1 Agreement of Purchase and Sale. Subject to the terms and conditions
hereinafter set forth, Seller agrees to sell and convey and Purchaser agrees to
purchase the following:
(a) that certain tract or parcel of land situated in Cook County,
Illinois, more particularly described on EXHIBIT 1.1(a) attached hereto and
made a part hereof, together with all and singular the rights and
appurtenances pertaining to such property, including any right, title and
interest of Seller in and to adjacent streets, alleys or rights-of-way (the
property described in clause (a) of this Section 1.1 being herein referred
to collectively as the "Land");
(b) the buildings, structures, fixtures and other improvements on the
Land, including specifically, without limitation, that certain office
building located thereon having a street address of 333 West Wacker Drive,
Chicago, Illinois (the property described in clause (b) of this Section 1.1
being herein referred to collectively as the "Improvements");
(c) all of Seller's right, title and interest in and to all tangible
personal property upon the Land or within the Improvements, including
specifically, without limitation, appliances, furniture, carpeting,
draperies and curtains, tools and supplies, and other items of personal
property (excluding cash and proprietary software and electronic work
product) used exclusively in connection with the operation of the Land and
the Improvements including those items listed On EXHIBIT 1.1(c) hereto (the
property described in clause (C) of this Section 1.1 being herein referred
to collectively as the "Personal Property");
(d) all of Seller's right, title and interest, as lessor, in and to
all agreements listed and described on EXHIBIT 1.1(d) (the "Lease
Schedule") attached hereto and made a part hereof, pursuant to which any
portion of the Land or Improvement; is used or occupied by anyone other
than Seller (the property described in clause (d) of this Section 1.1 being
herein referred to collectively as the "Leases"); and
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(e) all of Seller's right, title and interest in and to (i) all
assignable contracts and agreements (collectively, the 'Operating
Agreements") listed and described on EXHIBIT 1.1(e) (the "Operating
Agreements Schedule") attached hereto and made a part hereof, relating to
the upkeep, repair, maintenance or operation of the Land, Improvements or
Personal Property which will extend beyond the date of Closing (as such
term is defined in Section 4.1 hereof), (ii) all assignable existing
warranties and guaranties (expressed or implied) issued to Seller in
connection with the Improvements or the Personal Property, (iii) any
refunds of real estate taxes on the Property to the extent such refunds are
payable to tenants under the Leases, and (iv) any tradenames, tradenames,
copyrights and similar intellectual property relating to the Land,
Improvements and the business conducted thereon by Seller (other than
proprietary software and electronic work product) (the property described
in this Section 1.1(e) being sometimes herein referred to collectively as
the "Intangibles").
1.2 Property Defined. The Land, the Improvements, the Personal Property,
the Leases and the Intangibles are hereinafter sometimes referred to
collectively as the "Property.
1.3. Permitted Exceptions. The Property shall be conveyed subject to the
matter which are, or are deemed to be, Permitted Exceptions pursuant to Article
II hereof (herein referred to collectively as the "Permitted Exceptions").
1.4 Purchase Price. Seller is to sell and Purchaser is to purchase the
Property for a total of ONE HUNDRED NINE MILLION TWO HUNDRED FIFTY THOUSAND AND
N0/100 DOLLARS ($109,250,000.00) (the "Purchase Price").
1.5 Payment of Purchase Price. The Purchase Price, as increased or
decreased by prorations and adjustments as herein provided, shall be payable in
full at Closing in cash by wire transfer of immediately available federal funds
to a bank account designated by Seller in writing to Purchaser prior to the
Closing.
1.6 Earnest Money. Simultaneously with the execution and delivery of this
Agreement, Purchaser is depositing with Commonwealth Land Title Insurance
Company (the "Escrow Agent"), having its office at 30 North LaSalle Street,
Chicago, Illinois, the sum of One Million and No/100 Dollars ($1,000,000.00)
(the "Earnest Money") in good funds, either by certified bank or cashier's check
or by federal wire transfer. The Escrow Agent shall hold the Earnest Money in an
interest-bearing account mutually acceptable to Purchaser and Seller in
accordance with the terms and conditions of an escrow agreement entered into
among Seller, Purchaser and Escrow Agent simultaneously with the execution of
this Agreement. All interest accruing on such sum shall become a part of the
Earnest Money and shall be distributed as Earnest Money in accordance with the
terms of this Agreement.
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ARTICLE II
TITLE AND SURVEY
2.1 Title Examination: Commitment for Title Insurance. Seller has delivered
to Purchaser a commitment to issue an ALTA Form B (1992) Owner's Title Insurance
Policy identified as File No. H455-0827 with an effective date of November 21,
1996 (the "Title Commitment") covering the Land and Improvements from
Commonwealth Land Title Insurance Company (the "Title Company"), showing all
matters affecting title to the Property and binding the Title Company to issue
at Closing an Owner's policy of Title Insurance in the full amount of the
Purchase Price pursuant to and with such endorsements as provided in Section 2.4
hereof. The Title Company has delivered to Purchaser copies of all instruments
referenced in Schedule B and Schedule C thereof.
2.2 Survey. Seller has delivered to Purchaser and the Title Company an ALTA
Urban survey of the Property (the "Survey") prepared by Haeger and Associates,
Inc. (the "Surveyor"), certified on November 26, 1996 to Seller, Purchaser and
the Title Company.
2.3 Intentionally Omitted.
2.4 Conveyance of Title. At Closing, Seller shall convey and transfer to
Purchaser fee simple title to the Property as will enable the Title Company to
issue to Purchaser an ALTA Owner's Policy of Title Insurance, Form B-1992 (the
"Title Policy") covering the Land and Improvements, in the full: amount of the
Purchase Price with "extended coverage", the endorsements described in Exhibit
2.4 hereto and such other endorsements as Purchaser may reasonably require. The
Title Company shall also obtain reinsurance agreements with direct access rights
in such amounts and with such companies as may be reasonably satisfactory to
Purchaser, provided the Title Company shall retain at least $30,000,000 of
liability. Notwithstanding anything contained herein to the contrary, the
Property shall be conveyed subject to the following matters, which shall be
deemed to be Permitted Exceptions:
(a) the rights of tenants, as tenants only, under the Leases and any
new Leases entered into between the Effective Date and Closing and approved
by Purchaser in accordance with the terms of this Agreement; payable as of
the date of Closing;
(b) the lien of all ad valorem real estate taxes and assessments not
yet due and payable as of the date of closing;
(c) local, state and federal laws, ordinances or governmental
regulations, including but not limited to, building and zoning laws,
ordinances and regulations, now or hereafter in effect relating to the
Property,
(d) the items listed on Exhibit 2,4(d) hereto;
(e) items appearing in any later date to the Title Commitment or show
later revision of the Survey and, in either case, not objected to by
Purchaser or waived or deemed waived by Purchaser in accordance with
Section 2.5 hereof; and
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<PAGE> 4
(f) acts of Purchaser and parties acting by or through Purchaser.
2.5 Pre-Closing "Gap" Title Defects. Purchaser may, at or prior to Closing,
notify Seller in writing of any objections to title first raised by the Title
Company or the Surveyor between (a) the effective date of the Title Commitment
referred to above, and (b) the date on which the transaction contemplated herein
is scheduled to close. With respect to any objections to title set forth in such
notice, except any New Exceptions (as hereinafter defined), Seller shall have
the right to cure such objections but shall not be obligated to cure any such
objections unless any such objection is a New Exception. The term "New
Exception" shall mean any exceptions to title arising after the effective date
of the Title Commitment which resulted from the intentional act or omission of
Seller. Within three (3) days after receipt of Purchaser's notice of such
objections, Seller shall notify Purchaser in writing whether Seller elects to
attempt to cure such objections. If Seller elects to attempt to cure, Seller
shall have until the date of Closing to use reasonable commercial efforts to
attempt to remove, satisfy or cure the same or cause the Title Company to
provide affirmative insurance reasonably satisfactory to Purchaser, over same,
in any event, in a manner reasonably satisfactory to Purchaser and for this
purpose Seller shall be entitled to a reasonable adjournment of the Closing if
additional time is required to a date mutually satisfactory to Seller and
Purchaser, but in no event shall the adjournment exceed thirty (30) days after
the date for Closing set forth in Section 4.1 hereof. If any such objection is
the result of a New Exception Seller shall remove, satisfy or cure the same or
cause the Title Company to provide affirmative insurance reasonably satisfactory
to Purchaser over same, and for this purpose Seller shall be entitled to a
reasonable adjournment of the Closing if additional time is required to a date
mutually satisfactory to Seller and Purchaser, but in no event shall the
adjournment exceed thirty (30) days after the date for Closing set forth in
Section 4.1 hereof. If Seller elects not to cure any objections, except a New
Exception, specified in Purchaser's notice, or if Seller is unable to effect a
cure of same prior to the Closing (or any date to which the Closing has been
adjourned), Purchaser shall have the following options: (I) to accept a
conveyance of the Property subject to the Permitted Exceptions, specifically
including any matter objected to by Purchaser which Seller is unwilling or
unable to cure, and without reduction of the Purchase Price, or (ii) terminate
this Agreement by sending written notice thereof to Seller, and upon delivery of
such notice of termination, this Agreement shall terminate and the Earnest Money
shall be returned to Purchaser, and thereafter neither party hereto shall have
any further rights, obligations or liabilities hereunder except to the extent
that any right, obligation or liability set forth herein expressly survives
termination of this Agreement. If Seller notifies Purchaser that Seller does not
intend to attempt to cure any such title objection; or if, having commenced a
cure thereof; Purchaser shall, within three (3) business days after such notice
has been given, notify Seller in writing whether Purchaser shall elect to accept
the conveyance under clause (I) or to terminate this Agreement under clause
(ii).
ARTICLE III
INSPECTION
3.1 Right of Inspection. During the period beginning on November 6,
1996 and ending at the Closing, Purchaser shall have the right to make a
physical inspection of the Property, to perform tests on the Property and to
examine at such place or places at the
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Property, in the offices of the property manager or elsewhere as the same may be
located. any operating files maintained by Seller or its property manager in
connection with the leasing, maintenance and/or management of the Property,
including, without limitation, the Leases, lease files, Operating Agreements,
insurance policies, bills, invoices, receipts and other general records relating
to the income and expenses of the Property, correspondence, surveys,
governmental permits and consents, plans and specifications, warranties for
services and materials provided to the Property, any engineering reports, indoor
air quality reports, environmental audits and similar materials, litigation and
claims files and materials, but excluding materials not directly related to the
leasing, maintenance and/or management of the Property such as Seller's internal
memoranda, appraisals and similar proprietary or confidential information. At
Purchaser's request, Seller shall afford Purchaser the opportunity to discuss
the Property with Seller's property manager, leasing agent and real estate tax
consultant, at such reasonable times as Purchaser may from time to time request.
Purchaser understands and agrees that any on-site inspections or testing of the
Property shall be conducted upon at least twenty-four (24) hours' prior notice
to Seller and, if Seller elects to be present, in the presence of Seller or its
representative. Any such inspections and testing shall be performed by companies
selected by Purchaser and approved by Seller, which approval shall not be
unreasonably withheld or delayed. Purchaser agrees to repair any damage to the
Property and to indemnify Seller against and hold Seller harmless from any claim
for liabilities, costs, expenses (including reasonable attorneys' fees actually
incurred) damages or injuries to property or to any person arising out of or
resulting from the inspection or tearing of the Property by Purchaser or its
consultants or agents, and notwithstanding anything to the contrary in this
Agreement, such obligation to repair and to indemnify and hold harmless Seller
shall survive Closing or any termination of this Agreement. Purchaser shall
maintain and shall ensure that Purchaser's consultants involved in any such
inspection maintain public liability and property damage insurance in the amount
of $1,000,000 and in form and substance adequate to insure against all liability
of Purchaser and its consultants, respectively, and each of its agents,
employees or contractors, arising out of the inspections or testing. All
inspections and testing shall occur at reasonable times agreed upon by Seller
and Purchaser and shall be conducted so as not to interfere unreasonably with
use of the Property by Seller or its tenants.
ARTICLE IV
CLOSING
4.1 Time and Place. The consummation of the transaction contemplated
hereby ("Closing") shall be held at the offices of Seller's counsel, Katten
Muchin & Zavis, 525 West Monroe Street, Suite 1600, Chicago, Illinois, at
9:00 a.m. on December 31, 1996 (the "Closing Date"). At Closing, Seller and
Purchaser shall perform the obligations set forth in, respectively,
Section 4.2 and Section 4.3, the performance of which obligations shall be
concurrent conditions.
4.2 Seller's Obligations at Closing. At Closing, Seller shall:
(a) deliver to Purchaser a duly executed special warranty deed (the
"Deed") in recordable form reasonably satisfactorily to Seller and
Purchaser, conveying the Land
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and Improvements to Purchaser, or Purchaser's designee, subject only
the Permitted Exceptions; the warranty of title in the Deed will be
only as to claims made by, through or under Seller and not otherwise;
(b) deliver to Purchaser a duly executed bill of sale in form
reasonably satisfactory to Seller and Purchaser conveying the Personal
Property with warranty of title and without warranty, expressed or
implied, as to merchantability and fitness for any purpose;
(c) assign to Purchaser, and Purchaser shall assume, the
landlord/lessor interest in and to the Leases by duly executed assignment
and assumption agreement in form reasonably satisfactory to Seller and
Purchaser pursuant to which (i) Seller shall indemnify Purchaser and hold
Purchaser harmless from and against any and all claims pertaining to the
Leases arising from acts or a failure of Seller to act occurring prior to
Closing and (ii) Purchaser shall indemnify Seller and hold Seller harmless
from and against any and all claims pertaining to the Leases arising from
acts or a failure of Purchaser to act occurring from and after the
Closing, including without limitation, claims made by tenants with respect
to tenants' security deposits to the extent paid, credited or assigned to
Purchaser;
(d) assign to Purchaser, and Purchaser shall assume, Seller's
interest in the Operating Agreements and the other Intangibles by duly
executed assignment and assumption agreement in form reasonably
satisfactory to Seller and Purchaser pursuant to which (i) Seller shall
indemnify Purchaser and hold Purchaser harmless from and against any and
all claims pertaining to such Operating Agreements or the other
Intangibles arising from acts or a failure to Seller to act occurring
prior to Closing and (ii) Purchaser shall indemnify Seller and hold Seller
harmless from and against any and all claims pertaining to such Operating
Agreements or the other Intangibles arising from acts or a failure of
Purchaser to act occurring from and after the Closing;
(e) deliver to Purchaser such Tenant Estoppels (as defined in
Section 5.4(b) hereof) as are in Seller's possession and such Seller
Estoppels (as defined in Section 5.4(b) as Seller elects to deliver;
(f) join with Purchaser to execute a notice in form and content
reasonably satisfactory to Purchaser and Seller which Purchaser shall send
to each tenant under each of the Leases informing such tenant of the sale
of the Property and of the assignment to Purchaser of Seller's interest
in, and obligations under, the Leases (including, if applicable any
security deposits) and directing that all rent and other sums payable
after the Closing under each such Lease shall be paid as set forth in the
notice;
(g) deliver to the Purchaser a certificate, dated as of the date of
Closing and executed on behalf of Seller by a duly authorized officer of
the general partner of Seller, stating that the representations and
warranties of Seller contained in this Agreement are true and correct in
all material respects as of the date of Closing (with appropriate
modifications of those representations and warranties made in Section 5.1
hereof to reflect any changes therein including without limitation any
changes resulting from
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actions in accordance with Section 5.4 hereof) or identifying any
representation or warranty which is not, or no longer is, true and correct
and explaining the state of facts giving rise to the change. In no event
shall Seller be liable to Purchaser for, or be deemed to be in default
hereunder by reason of, any breach of representation or warranty which
results from any change that (I) occurs between the Effective Date and the
date of Closing, and (ii) is expressly permitted under the terms of this
Agreement or is beyond the reasonable control of Seller to prevent;
provided, however, that the occurrence of a material change in the
representations and warranties which is not expressly permitted hereunder
or is beyond the reasonable control of Seller to prevent shall constitute
the non-fulfillment of the condition set forth in Section 4.6(b) and if,
despite changes or other matters described in such certificate, the Closing
occurs, Seller's representations and warranties set forth in this Agreement
shall be deemed to have been modified by all statements made in such
certificate;
(h) deliver to Purchaser such evidence as Purchaser's counsel and/or
the Title Company may reasonably require as to the authority of the person
or persons executing documents on behalf of Seller;
(i) deliver to Purchaser an affidavit duly executed by Seller stating
that Seller is not a "foreign person" as defined in the Federal Foreign
Investment in Real Property Tax Act of 1980 and the 1984 Tax Reform Act;
(j) deliver to Purchaser the Leases, Operating Agreements and licenses
and permits, if any, in the possession of Seller or Seller's agents,
together with all leasing and property files and records regarding the
operation, ]casing and maintenance of the Property. Purchaser shall
cooperate with Seller for a period of seven (7) years after Closing in case
of Seller's need in response to any legal requirement, a tax audit, tax
return preparation or litigation threatened or brought against Seller, by
allowing Seller and its agents or representatives access, upon reasonable
advance written notice (which notice shall identify the nature of the
information sought by Seller), at all reasonable times to examine and make
copies of any and all instruments, files and records which were in Seller's
possession prior to Closing, which right shall survive the Closing provided
that Seller reimburses Purchaser for its reasonable out-of-pocket costs and
expenses in connection therewith;
(k) deliver to Purchaser possession and occupancy of the Property,
subject to the Permitted Exceptions;
(l) deliver to Purchaser evidence of the termination of the management
and leasing agreement with COMPASS;
(m) join with Purchaser in the execution of a closing statement
reflecting all prorations, credits and charges provided herein in a form
reasonably satisfactory to Seller and Purchaser;
(n) join with Purchaser in the execution of closing escrow
instructions in customary form reasonably acceptable to Seller and
Purchaser; and
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(o) deliver such additional documents as shall be reasonably required
to consummate the transaction contemplated by this Agreement.
4.3 Purchaser's Obligations at Closing. At Closing, Purchaser shall:
(a) pay to Seller the full amount of the Purchase Price, as increased
or decreased by prorations and adjustments as herein provided, in
immediately available wire transferred funds pursuant to Section 1.5 above,
it being agreed that at Closing the Earnest Money shall be delivered to
Seller and applied towards payment of the Purchase Price;
(b) join Seller in execution of the instruments described in Sections
4.2(c), 4.2(d), 4.2(f), 4.2(m) and 4.2(n) above;
(c) deliver to Seller such evidence as Seller's counsel and/or the
Title Company may reasonably require as to the authority of the person or
persons executing documents on behalf of Purchaser; and
(d) deliver such additional documents as shall be reasonably required
to consummate the transaction contemplated by this Agreement.
4.4 Credits and Prorations.
(a) The following shall be apportioned with respect to the Property as
of 12:01 a.m., on January 1, 1997 (the "Proration Date"):
(i) rents, if any, as and when collected (the term "rents" as
used in this Agreement includes all payments due and payable by
tenants under the Leases, including, without limitation, any deposits
of estimated amounts of operating expenses, but not estimated amounts
of 1995 real estate taxes and 1996 operating expenses for which Seller
is entitled to all payments);
(ii) payments under the Operating Agreements;
(iii) gas, electricity and other utility charges for which
Seller is liable, if any, such charges to be apportioned at Closing on
the basis of the most recent meter reading occurring prior to Closing;
and
(iv) any other operating expenses or other items pertaining to
the Property which are customarily prorated between a purchaser and a
seller in the area in which the Property is located, other than
general real estate taxes and assessments levied against the Property
for the year 1996 (the "Taxes").
(b) Notwithstanding anything contained in the foregoing provisions:
(i) At Closing, (A) Seller shall, at Seller's option either
deliver to Purchaser any security deposits pursuant to the Leases or
credit to the account of
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Purchaser the amount of such security deposits (to the extent such
security deposits are not applied against delinquent rents or otherwise as
provided in and in accordance with the Leases), and (B) Purchaser shall credit
to the account of Seller all refundable cash or other deposits posted with
utility companies serving the Property that are effectively assigned to
Purchaser.
(ii) Purchaser shall pay the Taxes prior to their becoming delinquent.
(iii) As to gas, electricity and other utility charges referred to in
Section 4.4(a)(iv) above, Seller may on notice to Purchaser elect to pay one or
more of all of said items accrued to the date hereinabove fixed for
apportionment directly to the person or entity entitled thereto, and to the
extent Seller so elects, such item shall not be apportioned hereunder, and
Seller's obligation to pay such item directly in such case shall survive the
Closing.
(iv) Purchaser shall be responsible for the payment of (A) all Tenant
Inducement Costs (as hereinafter defined) and leasing commissions, including
those payable to COMPASS Management and Leasing, Inc. ("COMPASS"), which become
due and payable (whether before or after Closing) as a result of any new Leases
or renewals or expansions of existing Leases described on EXHIBIT 4.4(b)(iv)(A)
hereto entered into between November 4, 1996 and the date of closing, (B) all
Tenant Inducement Costs arising from Leases in existence prior to November 4,
1996 with respect to work or improvements to be performed pursuant to such
Leases after the date of Closing which are not described on EXHIBIT
4.4(b)(iv)(B) hereto, and (C) all Tenant Inducement Costs and leasing
commissions with respect to new leases or renewals or expansions of existing
Leases entered into by Purchaser after Closing, including any leasing
commissions payable to COMPASS or cooperating broker in accordance with the
terms of the Management and Leasing Agreement dated October 1, 1993 between
Seller and COMPASS and any agreement described on EXHIBIT 1.1(e), or as may
otherwise be agreed or by COMPASS, the cooperating broker and Purchaser, with
respect to new leases or renewals or expansions of existing Leases entered into
by Purchaser within ninety (90) days of Closing with the parties listed on
EXHIBIT 4.4(b)(iv)(C) hereto. Seller shall be responsible for the cost to
complete the voice evacuation system and for all Tenant Inducement Costs and
leasing commissions which become due and payable (whether before or after
Closing) with respect to the Leases, renewals or expansions described on EXHIBIT
4.4(b)(iv)(b) hereto. If, as of the date of Closing, Seller shall have paid any
Tenant Inducement Costs or leasing commissions for which Purchaser is
responsible pursuant to the foregoing provisions, Purchaser shall reimburse
Seller therefor at Closing. If after the date of Closing, Purchaser pays any
costs of completing the voice evacuation system or any Tenant Inducement Costs
or leasing commissions for which Seller is responsible pursuant to the foregoing
provisions, Seller shall reimburse Purchaser therefor within fifteen (15) days
of Purchaser's request accompanied by applicable invoices. For purposes hereof,
the term "Tenant Inducement Costs" shall mean any out-of-pocket payments
required under a Lease to be paid by the landlord thereunder to or for the
benefit
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of the tenant thereunder which is in the nature of a tenant inducement,
including specifically, without limitation, tenant improvement costs,
construction management fees (including those payable to COMPASS while it was
property manager), lease buyout costs, and moving, design and refurbishment
allowances, in each case as, set forth in the Lease, the management agreement
with COMPASS or otherwise disclosed to Purchaser in writing. The term "Tenant
Inducement Costs" shall not include loss of income resulting from any free
rental period, it being agreed that Seller shall bear the loss resulting from
any free rental period until the date of Closing and that Purchaser shall bear
such loss from and after the date of Closing. Purchaser shall have no obligation
for and shall not assume or be responsible for any leasing commissions other
than those described in this SECTION 4.4(b)(iv).
(v) Unpaid and delinquent rent collected by Seller and Purchaser after the
date of Closing shall be delivered as follows: (a) if Seller collects any unpaid
or delinquent rent for the Property, Seller shall, within fifteen (15) days
after the receipt thereof, deliver to Purchaser any such rent which Purchaser is
entitled to hereunder relating to the Proration Date and any period thereafter,
and (b) if Purchaser collects any unpaid or delinquent rent from the Property,
Purchaser shall, within fifteen (15) days after the receipt thereof, deliver to
Seller any such rent which Seller is entitled to hereunder relating to the
period prior to the Proration Date. Seller and Purchaser agree that all rent
received by Seller or Purchaser after the date of Closing shall be applied first
to current rentals and then to delinquent rentals, if any, in inverse order of
maturity. Purchaser will make a good faith effort after Closing to collect all
rents in the usual course of Purchaser's operation of the Property, but
Purchaser will not be obligated to institute any lawsuit or other collection
procedures to collect delinquent rents. Reasonable collection costs with respect
to delinquent rents shall be apportioned equitably to pre and post closing
delinquent rents. In the event that there shall be any rents or other charges
under any Leases which, although relating to a period prior to the Proration
Date, do not become due and payable until after Closing or are paid prior to
Closing but are subject to adjustment after Closing (such as reimbursements for
1995 real estate taxes and year end operating expense reimbursements and the
like), then any rents or charges of such type received by Purchaser or its
agents or Seller or its agents subsequent to Closing shall, to the extent
applicable to a period extending through the Proration Date, be prorated between
Seller and Purchaser's of the Proration Date and Seller's portion thereof shall
be remitted promptly to Seller by Purchaser.
(vi) Seller shall pay all Operating expenses incurred prior to the
Proration Date and Purchaser shall pay all operating expenses incurred on and
after the Proration Date. A final statement shall be prepared by Seller and
Purchaser indicating Operating expenses for the Property for the year 1996 and
real estate taxes paid in 1996 and setting forth the payments made by each
tenant with respect thereto. Any underpayments Of operating expenses and real
estate taxes paid in 1996 by tenants shall be billed to tenant and paid to
Seller. Any overpayments of operating expenses and real estate taxes paid in
1996 by tenants
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shall be paid to tenants by Seller. At Seller's option, Seller may
credit Purchaser at Closing for the estimate of any such overpayments
and the parties shall make an appropriate adjustment at such time as
the actual amount of such overpayment is determined.
(c) To the extent any prorations are based upon estimated amounts,
such prorations shall be adjusted when actual amounts are finally
determined.
(d) The provisions of this Section 4.4 shall survive Closing.
4.5 Closing Costs. Seller shall pay (a) the fees of any counsel
representing it in connection with this transaction, (b) the fee for the title
examination and the Title Commitment and the premium for the Owner's Policy of
Title Insurance (with the endorsements described on EXHIBIT 2.4) to be issued to
Purchaser by the Title Company at Closing, (c) the cost of the Survey, (d) the
transfer tax imposed by the State of Illinois and the County of Cook, and (e)
one-half (1/2) of any escrow fees and closing fees which may be charged by the
Escrow Agent or Title Company. Purchaser shall pay (v) the transfer tax imposed
by the City of Chicago; (w) the fees of any counsel representing Purchaser in
connection with this transaction; (x) fees for recording the deed conveying the
Property to Purchaser; the fee for any other endorsements required by Purchaser
to the Owner's Policy of Title Insurance to be issued to Purchaser by the Title
Company at Closing; and (z) one-half (1/2) of any escrow fees and closing fees
charged by the Escrow Agent or Title Company. All other costs and expenses
incident to this transaction and the closing thereof shall be paid by the party
incurring same.
4.6 Conditions Precedent to Obligation of Purchaser. The obligation of
Purchaser to consummate the transaction hereunder shall be subject to the
fulfillment on or before the date of Closing of all of the following conditions,
any or all of which may be waived in writing by Purchaser in its sole
discretion:
(a) Seller shall have delivered to Purchaser all of the items required
to be delivered to Purchaser pursuant to the terms of this Agreement,
including but not limited to, those provided for in Section 4.2.
(b) All of the representations and warranties of Seller contained in
this Agreement shall be true and correct in all material respects as of the
date of Closing (with appropriate modifications permitted under this
Agreement).
(c) Seller shall have performed and observed, in all material
respects, all covenants and agreements of this Agreement to be performed
and observed by Seller as of the date of Closing.
(d) Purchaser shall have received a Tenant Estoppel from or a Seller
Estoppel with respect to (i) each tenant leasing in excess of 15,000
rentable square feet (together, the "Major Tenants"), and (ii) such other
tenants under Leases so that Purchaser shall receive Tenant Estoppels or
Seller Estoppels from or with respect to tenants (including the Major
Tenants) leasing at least 570,000 rentable square feet.
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In the event any of the foregoing conditions are not fulfilled or waived in
writing by Purchaser by Closing, this Agreement shall terminate and the Earnest
Money shall be returned to Purchaser.
4.7 Conditions Precedent to Obligation of Seller. The obligation of
Seller to consummate the transaction hereunder shall be subject to the
fulfillment on or before the date of Closing of all of the following conditions,
any or all of which may be waived in writing by Seller in its sole discretion:
(a) Seller shall have received the Purchase Price as adjusted pursuant
to and payable in the manner provided for in this Agreement.
(b) Purchaser shall have delivered to Seller all of the items required
to be delivered to Seller pursuant to the terms of this Agreement,
including but not limited to, those provided for in Section 4.3.
(c) All of the representations and warranties of Purchaser contained
in this Agreement shall be true and correct in all material respects as of
the date of Closing.
(d) Purchaser shall have performed and observed, in all material
respects, all covenants and agreements of this Agreement to be performed
and observed by Purchaser as of the date of Closing.
In the event any of the foregoing conditions are not fulfilled or waived in
writing by Seller by Closing, this Agreement shall terminate and the Earnest
Money shall be returned to Purchaser.
ARTICLE V
REPRESENTATIONS, WARRANTIES AND COVENANTS
5.1 Representations and Warranties of Seller. Seller hereby makes the
following representations and warranties to Purchaser as of the Effective Date:
(a) Organization and Authority.Seller has been duly organized and is
validly existing under the laws of the State of Illinois. Seller has the
full right and authority to enter into this Agreement and to transfer all
of the Property to be conveyed by Seller pursuant hereto and to consummate
or cause to be consummated the transactions contemplated herein to be made
by Seller. The person signing this Agreement on behalf of Seller is
authorized to do so.
(b) Pending Actions. There is no action, suit, arbitration,
unsatisfied order or judgment, governmental investigation or proceeding
pending or threatened against Seller, the Property or the transactions
contemplated by this Agreement, which, if adversely determined, could
individually or in the aggregate have a material adverse effect on title to
the Property or any portion thereof or which could in any material way
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interfere with the consummation by Seller of the transaction contemplated
by this Agreement.
(c) Leases. Seller is the lessor or landlord or the successor lessor
or landlord under the Leases. Except as set forth in the Lease Schedule,
there are no other leases or occupancy agreements to which Seller is a
party affecting the Property. Except as otherwise set forth in the Leases,
no presently effective rent concessions have been given to any tenants and
no rent has been paid more than thirty (30) days in advance by any tenants
respecting a period subsequent to the Closing. Except as forth in EXHIBIT
5.1(c) hereto or as otherwise disclosed to Purchaser, no tenants have
asserted in writing any claims, defenses or offsets to rent. To Seller's
knowledge, except as set forth in EXHIBIT 5.1(c) hereto or as otherwise
disclosed to Purchaser, no material default, delinquency or breach exists
on the part of any tenant. There are no material defaults or breaches on
the part of the landlord under any Lease. In the event that any Tenant
Estoppel delivered to Purchaser with respect of any Lease shall contain any
statement of fact, information or other matter which is inconsistent with
the matters stated in Seller's representations in this Section 5.l(c), the
Tenant estoppel shall control and Seller shall have no liability for any
claim based upon a breach of representation regarding such statement of
fact, information or other matter contained in the Tenant Estoppel unless
such claim arises out of an intentional misrepresentation of Seller.
Notwithstanding anything to the contrary contained in this Agreement, but
without limiting any of Seller's other representations and warranties
contained in this Agreement, Seller does not represent or warrant that any
particular Lease will be in force or effect at Closing or that the tenants
under the Leases will have performed their obligations thereunder. Except
as disclosed to Purchaser, Landlord has received no written notice of any
tenant's intent to terminate its Lease. The termination of any Lease prior
to Closing by reason of the tenant's default shall nor entitle Purchaser to
an abatement of or credit against the Purchase Price or give rise to any
other claim on the part of Purchaser.
(d) Lease Brokerage. There are no lease brokerage agreements, leasing
commission agreements or other agreement providing for payments of any
amounts for leasing activities or procuring tenants with respect to the
Property other than as disclosed in EXHIBIT 1.1(e) or EXHIBIT 4.4(b)(iv)
(C).
(e) No Violations. Except as described on EXHIBIT 5.1(e) hereto,
Seller has not received prior to the Effective Date any written
notification from any governmental or public authority and has "no
knowledge (i) that the Property is in violation of any applicable fire,
health, building, use, "occupancy or zoning laws, other than ADA (as
hereinafter defined), where such violation remains outstanding or (ii) that
any work is required to be done upon or in connection with the Property in
order to comply with said laws, where such work remains outstanding.
(f) Taxes and Assessments. True and complete copies of the most recent
real estate tax bills for the Property have been delivered to Purchaser.
(g) Condemnation. To Seller's knowledge, no condemnation proceedings
relating to the Property are pending or threatened.
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(h) Insurance. Seller has not received any written notice from any
insurance company or board of fire underwriters of any defects or
inadequacies in or on the Property or any part or component thereof that
would materially and adversely affect the insurability of the Property or
cause any material increase in the premiums for insurance for the Property
that have not been cured or repaired.
(i) Environmental Matters. Except as set forth in any environmental
assessment reports in Seller's possession and disclosed to Purchaser or as
otherwise disclosed to Purchaser, Seller has no knowledge of any releases
of Hazardous Substances affecting the Property in violation of
environmental statutes, ordinances or regulations affecting the Property
and Seller has received no written notification that any governmental or
quasi-governmental authority has determined that there are any violations
of environmental statutes, ordinances or regulations affecting the
Property. As used herein, "Hazardous Substances" means all hazardous
materials, substances, pollutants, contaminants, or wastes (including
asbestos, petroleum, formaldehyde and polychlorinated biphenyls) currently
identified as a hazardous substance or waste in the Comprehensive
Environmental Response, Compensation and Liability Act of 1980 (commonly
known as "CERCLA"), as amended, the Superfund Amendments and
Reauthorization Act (commonly known as "SARA"), the Resource Conservation
and Recovery Act (commonly known as "RCRA"), or any other federal, state or
local legislation, ordinances or regulations applicable to the Property.
(j) Taxes. Seller has paid and shall pay all income taxes and other
taxes that are or could become a lien or charge upon the Property (except
for Taxes that are Permitted Exceptions as herein provided) and shall
indemnify and hold harmless Purchaser and the Property hereunder from any
claims, demands, liabilities or obligations in connection therewith.
(k) Options, Etc. Except for the right of first offer granted to the
limited partner in Seller pursuant to the partnership agreement of Seller
pursuant to which said limited partner made an offer to purchase the
Property on terms less favorable than the terms of this Agreement and which
offer has been rejected by the general partner in Seller, Seller has not
granted and there does not exist any option, first refusal right or other
first opportunity right to purchase the Property.
(l) Personal Property. To Seller's knowledge, Seller owns the Personal
Property described on EXHIBIT 1.1(c) hereto.
(m) Leases, Operating Agreements and Environmental Reports. To
Seller's knowledge, Seller has delivered to Purchaser or made available to
Purchaser, true and complete copies of the Leases, the Operating Agreements
and that certain Phase I Environment Report prepared by Hygienetics
Environmental Services, Inc. and dated March 18, 1996.
(n) ERISA. Seller is not an employee benefit plan as defined in
Section 3(3) of ERISA.
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5.2 Knowledge Defined. References to the "knowledge" of Seller shall refer
only to the actual knowledge of the Designated Employees (as hereinafter
defined) of Equitable Real Estate Investment Management, Inc. ("EREIM"), a
subsidiary of the general partner of Seller, and COMPASS and shall not be
construed, by imputation or otherwise, to refer to the knowledge of Seller, any
partner of Seller, EREIM, COMPASS or any affiliate of either of them, to any
property manager, or to any other officer, agent, manager, representative or
employee of Seller, any partner of Seller, EREIM or COMPASS or any affiliate
thereof or to impose upon such Designated Employees any duty to investigate the
matter to which such actual knowledge, or the absence thereof, pertains. As used
herein, the term "Designated Employees" shall refer to Michael A. Lunder of
EREIM and Lloyd E. Berry and Karin Kraai of COMPASS.
5.3 Survival of Seller's Representations and Warranties. The
representations and warranties of Seller set forth in Section 5.1 as updated by
the certificate of Seller to be delivered to Purchaser at Closing in accordance
with Section 4.2(g) hereof, shall survive Closing for a period of one year.
No claim for a breach of any representation or warranty of Seller shall be
actionable or payable (a) if the breach in question results from or is based on
a condition, state of facts or other matter which was known to Purchaser prior
to Closing, (b) unless the valid claims for all such breaches collectively
aggregate more than Two Hundred Fifty Thousand Dollars ($250,000), in which
event the full amount of such claims shall be actionable, and (c) unless
written notice containing a description of the specific nature of such breach
shall have been given by Purchaser to Seller prior to the expiration of said
one year period and an action shall have been commenced by Purchaser against
Seller within eighteen months of Closing. Notwithstanding the foregoing, the
limitations set forth in clause (b) above shall not apply to a breach of the
representation and warranty contained in Section 5.1(j) or to any claim under a
Seller Estoppel.
5.4 Covenants of Seller. Seller hereby covenants with Purchaser as
follows:
(a) From the Effective Date hereof until the Closing or earlier
termination of this Agreement, Seller shall use reasonable efforts to
operate and maintain the Property in a manner generally consistent with the
manner in which Seller has operated and maintained the Property prior to
the date hereof.
(b) Seller shall use reasonable efforts but without obligation to
incur any cost or expense) to obtain and deliver to Purchaser prior to
Closing, a written estoppel certificate in the form of EXHIBIT 5.4(b)(1)
attached hereto and made a part hereof signed by each tenant occupying
space in the Improvements. The signed certificates are referred to herein
as the "Tenant Estoppels". In the event that any such Tenant Estoppels are
not so obtained and delivered, Seller shall have the right to execute and
deliver to Purchaser at the Closing a certificate (hereinafter referred to
as a "Seller Estoppel") in favor of Purchaser in the form of EXHIBIT
5.4(b)(2) attached hereto and made a part hereof with respect to tenants
under Leases for which a Tenant Estoppel has not been obtained; provided,
however, Seller shall be obligated to deliver Seller Estoppels to the
extent required so that Purchaser shall have received Tenant Estoppels and
Seller Estoppels with respect to an aggregate of 500,000 rentable square
feet.
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<PAGE> 16
(c) A copy of any renewal or expansion of an existing Lease or of any
new Lease which Seller wishes to execute between the Effective Date and the
date of Closing will be submitted to Purchaser prior to execution by
Seller. Seller will not execute any such renewal or expansion of any
existing Lease or any such new Lease without the prior written consent of
Purchaser.
(d) In the event of loss or damage to the Property or any portion
thereof occurring between the Effective Date and the date of Closing,
Seller agrees to maintain its business interruption insurance covering the
Property after Closing until the repairs have been completed.
5.5 Representations and Warranties of Purchaser. Purchaser hereby
represents and warrants to Seller:
(a) Purchaser is not acquiring the Property with the assets of an
employee benefit plan as defined in Section 3(3) Of the Employee
Retirement Income Security Act of 1974, as amended ("ERISA").
(b) Purchaser has the full right, power and authority to purchase the
Property as provided in this Agreement and to carry out Purchaser's
obligations hereunder, and all requisite action necessary to authorize
Purchaser to enter into this Agreement and to carry out its obligations
hereunder have been, or by the Closing will have been, taken. The person
signing this Agreement on behalf of Purchaser is authorized to do so.
(c) There is no action, suit, arbitration, unsatisfied order or
judgment, government investigation or proceeding pending against Purchaser
which, if adversely determined, could individually or in the aggregate
materially interfere with the consummation of the transaction contemplated
by this Agreement.
5.6 Survival of Purchaser's Representations and Warranties. The
representation and warranties of Purchaser set forth in Section 5.5(a) shall
survive Closing and shall be a continuing representation and warranty without
limitation; Purchaser shall survive Closing for a period of one year.
5.7 Covenants of Purchaser. Purchaser hereby covenants with Seller that
Purchaser shall, in connection with its investigation of the Property during the
Inspection Period, inspect the Property for the presence of Hazardous Substances
(as defined in Section 5.l(i) hereof), and shall furnish to Seller copies of any
reports received by Purchaser in connection with any such inspection. Purchaser
hereby assumes full responsibility for such inspections and, except for claims
based on representations or warranties contained in Section 5.l(i), irrevocably
waives any claim against Seller arising from the presence of Hazardous
Substances on the Property. Purchaser shall also furnish to Seller copies of any
other reports received by Purchaser relating to any other inspections of the
Property conducted on Purchaser's behalf, if any (including, specifically,
without limitation, any reports analyzing compliance of the Property with the
provisions of the Americans with Disabilities Act ("ADA"), 42 U.S.C. section
12101, et Seq., if applicable).
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<PAGE> 17
5.8 CAISSONS LICENSE FEES. The parties acknowledge that certain
caissons comprising the foundation of the Improvements encroach into the public
way. In the event the City of Chicago requires a permit or license for the
maintenance of said encroachment and the City of Chicago imposes a fee in
connection therewith, Seller agrees to pay any portion of such fee which may be
imposed for the period prior to Closing. Purchaser agrees that it will not
initiate any action to obtain such permit or license and will keep Seller
apprised of any actions by the City of Chicago to require such permit or
license and to impose any fee in connection therewith. The parties will
cooperate in opposing any attempts by the City of Chicago to impose any fee for
the maintenance of said encroachments.
ARTICLE VI
DEFAULT
6.1 DEFAULT BY PURCHASER. If Purchaser defaults in the performance
of any material obligation hereunder for any reason other than Seller's
default, or the representation and warranty of Purchaser set forth in Section
5.5(a) is not true at Closing. Seller shall be entitled, as its sole remedy,
to terminate this Agreement and receive the Earnest Money as liquidated damages
for the breach of this Agreement, it being agreed between the parties hereto
that the actual damages to Seller in the event of such breach are impractical
to ascertain and the amount of the Earnest Money is a reasonable estimate
thereof.
6.2 DEFAULT BY SELLER. In the event that Seller fails to consummate
the transaction contemplated by this Agreement for any reason other than
Purchaser's default or the permitted termination of this Agreement by Seller or
Purchaser as herein expressly provided, Purchaser shall be entitled, as its
sole remedy, either (a) to receive the return of the Earnest Money and the
payment by Seller for all out-of-pocket costs and expenses incurred by Purchaser
in connection with this Agreement up to a maximum amount of $300,000, which
return and payment shall operate to terminate this Agreement and release Seller
from any and all liability hereunder, or (b) to enforce specific performance of
Seller's obligations hereunder. Purchaser expressly waives its rights to seek
additional damages in the event of Seller's default hereunder. Purchaser shall
be deemed to have elected to terminate this Agreement and receive back the
Earnest Money if Purchaser fails to file suit for specific performance against
Seller in a court having jurisdiction in the county and state in which the
Property is located, on or before ninety (90) days following the date upon
which Closing was to have occurred.
ARTICLE VII
RISK OF LOSS
7.1 MINOR DAMAGE. In the event of loss or damage to the Property or
any portion thereof which is not "major" (as hereinafter defined), this
Agreement shall remain in full force and effect provided Seller assigns to
Purchaser all of Seller's right, title and interest to any claims and proceeds
Seller may have with respect to any casualty insurance policies, business
interruption insurance policies (for the period following Closing) or
condemnation awards
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<PAGE> 18
relating to the premises in question. The Purchase Price shall be reduced by
an amount equal to the deductible amount under Seller's insurance policy. Upon
Closing, full risk of loss with respect to the Property shall pass to
Purchaser.
7.2 MAJOR DAMAGE. In the event of a "major" loss or damage, either
Seller or Purchaser may terminate this Agreement by written notice to the other
party, in which event the Earnest Money shall be returned to Purchaser. If
neither Seller nor Purchaser elects to terminate this Agreement within three
(3) days after Seller sends Purchaser written notice of the occurrence of major
loss or damage, then Seller and Purchaser shall be deemed to have elected to
proceed with Closing, in which event Seller shall assign to Purchaser all of
Seller's right, title and interest to any claims and proceeds Seller may have
with respect to any casualty insurance policies, business interruption
insurance policies (for the period following Closing) or condemnation awards
relating to the premises in question. The Purchase Price shall be reduced by
an amount equal to the deductible amount under Seller's insurance policy. Upon
Closing, full risk of loss with respect to the Property shall pass to
Purchaser.
7.3 DEFINITION OF "MAJOR" LOSS OR DAMAGE. For purposes of Section 7.1
and 7.2, "major" loss or damage refers to the following: (i) loss or damage to
the Property or any portion thereof such that the cost of repairing or
restoring the premises in question to a condition substantially identical to
that of the premises in question prior to the event of damage would be, in the
opinion of an architect selected by Seller and reasonably approved by
Purchaser, equal to or greater than One Hundred Thousand and No/100 Dollars
($100,000.00), and (ii) any loss due to a condemnation which permanently and
materially impairs the current use of the Property. If Purchaser does not give
notice to Seller of Purchaser's reasons for disapproving an architect within
two (2) days after receipt of notice of the proposed architect, Purchaser shall
be deemed to have approved the architect selected by Seller.
ARTICLE VIII
COMMISSIONS
8.1 BROKERAGE COMMISSIONS. Each party represents to the other that
there has been no broker or finder engaged in connection with the sale of the
Property other than Morgan Stanley & Co., Incorporated and Frain Camins &
Swartchild (the "Brokers"). Seller agrees to pay the fee payable to Morgan
Stanley & Co., Incorporated and Purchaser agrees to pay any fee payable to Frain
Camins & Swartchild in connection with the transaction contemplated hereby.
Each party agrees that should any claim be made for brokerage commissions or
finder's fees by any broker or finder other than the Brokers by, through or on
account of any acts of said party or its representatives, said party will
indemnify and hold the other party free and harmless from and against any and
all loss, liability, cost, damage and expense in connection therewith. The
provisions of this paragraph shall survive Closing.
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<PAGE> 19
ARTICLE IX
DISCLAIMERS AND WAIVERS
9.1 No Reliance on Documents. Except as expressly stated herein or in
documents or certificates delivered pursuant hereto at Closing, Seller makes no
representation or warranty as to the accuracy or completeness of any materials,
data or information delivered by Seller to Purchaser in connection with the
transaction contemplated hereby. Purchaser acknowledges and agrees that all
materials, data and information delivered by Seller to Purchaser in connection
with the transaction contemplated hereby are provided to Purchaser as a
convenience only and that any reliance on or use of such materials, data or
information by Purchaser shall be at the sole risk of Purchaser, except as
otherwise expressly stated herein or in documents or certificates delivered
pursuant hereto at Closing. Without limiting the generality of the foregoing
provisions, Purchaser acknowledges and agrees that (a) any environmental or
other report with respect to the Property which is delivered by Seller to
Purchaser shall be for general informational purposes only, (b) Purchaser shall
not have any right to rely on any such report delivered by Seller to Purchaser,
but rather will rely on its own inspections and investigations of the Property
and any reports commissioned by Purchaser with respect thereto, and (c) absent a
breach of representation or warranty, neither Seller, any affiliate of Seller
nor the person or entity which prepared any such report delivered by Seller to
Purchaser shall have any liability to Purchaser for any inaccuracy in or
omission from any such report.
9.2 DISCLAIMERS. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT OR IN
DOCUMENTS OR CERTIFICATES DELIVERED PURSUANT HERETO AT CLOSING, IT IS
UNDERSTOOD AND AGREED THAT SELLER IS NOT MAKING AND HAS NOT AT ANY TIME MADE
ANY WARRANTIES OR REPRESENTATIONS OF ANY KIND OR CHARACTER, EXPRESSED OR
IMPLIED, WITH RESPECT TO PROPERTY, INCLUDING, BUT NOT LIMITED TO, ANY
WARRANTIES REPRESENTATIONS AS TO HABITABILITY, MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE, TITLE (OTHER THAN SELLER'S LIMITED WARRANTY OF TITLE TO BE
SET FORTH IN THE DEED AND THE BILL OF SALE), ZONING, TAX CONSEQUENCES LATENT OR
PATENT PHYSICAL OR ENVIRONMENTAL CONDITION, UTILITIES, OPERATING HISTORY OR
PROJECTIONS, VALUATION, GOVERNMENTAL APPROVALS, THE COMPLIANCE OF THE PROPERTY
WITH GOVERNMENTAL LAWS, THE TRUTH ACCURACY OR COMPLETENESS OF THE PROPERTY
DOCUMENTS OR ANY OTHER INFORMATION PROVIDED BY OR ON BEHALF OF SELLER TO
PURCHASER, OR ANY OTHER MATTER OR THING REGARDING THE PROPERTY. PURCHASER
ACKNOWLEDGES AND AGREES THAT UPON CLOSING SELLER SHALL SELL AND CONVEY TO
PURCHASER AND PURCHASER SHALL ACCEPT THE PROPERTY "AS IS, WHERE IS, WITH ALL
FAULTS", EXCEPT TO THE EXTENT EXPRESSLY PROVIDED OTHERWISE IN THIS AGREEMENT OR
IN DOCUMENTS OR CERTIFICATES DELIVERED PURSUANT HERETO AT CLOSING. SELLER IS
NOT LIABLE FOR OR BOUND BY, ANY EXPRESSED IMPLIED WARRANTIES, GUARANTIES,
STATEMENTS, REPRESENTATIONS OR INFORMATION PERTAINING TO THE PROPERTY OR
RELATING THERETO (INCLUDING SPECIFICALLY, WITHOUT LIMITATION, PROPERTY
INFORMATION PACKAGES DISTRIBUTED WITH RESPECT TO THE
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<PAGE> 20
PROPERTY) MADE OR FURNISHED BY SELLER, THE MANAGER OF THE PROPERTY, OR ANY
REAL ESTATE BROKER OR AGENT REPRESENTING OR PURPORTING TO REPRESENT SELLER, TO
WHOMEVER MADE OR GIVEN, DIRECTLY OR INDIRECTLY, ORALLY OR IN WRITING, UNLESS
SPECIFICALLY SET FORTH IN THIS AGREEMENT OR IN DOCUMENTS OR CERTIFICATES
DELIVERED PURSUANT HERETO AT CLOSING. PURCHASER REPRESENTS TO SELLER THAT
PURCHASER HAS CONDUCTED, OR WILL CONDUCT PRIOR TO CLOSING, SUCH INVESTIGATIONS
OF THE PROPERTY, INCLUDING BUT NOT LIMITED TO, THE PHYSICAL AND ENVIRONMENTAL
CONDITIONS THEREOF, AS PURCHASER DEEMS NECESSARY TO SATISFY ITSELF AS TO THE
CONDITION OF THE PROPERTY AND THE EXISTENCE OR NONEXISTENCE OR CURATIVE ACTION
TO BE TAKEN WITH RESPECT TO ANY HAZARDOUS OR TOXIC SUBSTANCES ON OR DISCHARGED
FROM THE PROPERTY, AND WILL RELY SOLELY UPON SAME AND NOT UPON ANY INFORMATION
PROVIDED BY OR ON BEHALF OF SELLER OR ITS AGENTS OR EMPLOYEES WITH RESPECT
THERETO, OTHER THAN SUCH REPRESENTATIONS, WARRANTIES AND COVENANTS OF SELLER AS
ARE EXPRESSLY SET FORTH IN THIS AGREEMENT OR IN DOCUMENTS OR CERTIFICATES
DELIVERED PURSUANT HERETO AT ClOSING. UPON CLOSING, PURCHASER SHALL ASSUME THE
RISK THAT ADVERSE MATTERS, INCLUDING BUT NOT LIMITED TO, CONSTRUCTION DEFECTS
AND ADVERSE PHYSICAL AND ENVIRONMENTAL CONDITIONS, MAY NOT HAVE BEEN REVEALED BY
PURCHASER'S INVESTIGATIONS, AND PURCHASER, UPON CLOSING, SHALL BE DEEMED TO HAVE
WAIVED, RELINQUISHED AND RELEASED SELLER (AND SELLER'S PARTNERS AND THEIR
RESPECTIVE OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES AND AGENTS) FROM AND
AGAINST ANY AND ALL CLAIMS, DEMANDS, CAUSES OF ACTION (INCLUDING CAUSES OF
ACTION IN TORT), LOSSES, DAMAGES, LIABILITIES, COSTS AND EXPENSES (INCLUDING
ATTORNEYS' FEES AND COURT COSTS) OF ANY AND EVERY KIND OR CHARACTER, KNOWN OR
UNKNOWN, WHICH PURCHASER MIGHT HAVE ASSERTED OR ALLEGED AGAINST SELLER (AND
SELLER'S PARTNERS AND THEIR RESPECTIVE OFFICERS, DIRECTORS, SHAREHOLDERS,
EMPLOYEES AND AGENTS) AT ANY TIME BY REASON OF OR ARISING OUT OF ANY LATENT OR
PATENT CONSTRUCTION DEFECTS OR PHYSICAL CONDITIONS, VIOLATIONS OF ANY APPLICABLE
LAWS (INCLUDING, WITHOUT LIMITATION, ANY ENVIRONMENTAL LAWS) AND ANY AND ALL
OTHER ACTS, OMISSIONS, EVENTS. CIRCUMSTANCES OR MATTERS REGARDING THE PROPERTY
UNLESS SUCH CLAIM RESULTS FROM A BREACH OF ANY APPLICABLE REPRESENTATION OR
WARRANTY OF SELLER HEREUNDER OR IN ANY DOCUMENT OR CERTIFICATE DELIVERED
PURSUANT HERETO AT CLOSING, SUBJECT TO THE PROVISIONS OF SECTION 5.3. PURCHASER
AGREES THAT SHOULD ANY CLEANUP, REMEDIATION OR REMOVAL OF HAZARDOUS SUBSTANCES
OR OTHER ENVIRONMENTAL CONDITIONS ON THE PROPERTY BE REQUIRED AFTER THE DATE OF
CLOSING, PURCHASER SHALL MAKE NO CLAIM OR DEMAND AGAINST SELLER TO PROVIDE OR
PAY FOR ALL OR ANY PART OF SUCH CLEAN-UP, REMOVAL OR REMEDIATTON UNLESS SUCH
CLAIM RESULTS FROM A BREACH OF ANY APPLICABLE REPRESENTATION OR WARRANTY
HEREUNDER OR IN ANY DOCUMENT OR CERTIFICATE DELIVERED PURSUANT HERETO AT
CLOSING, SUBJECT TO THE PROVISIONS OF SECTION 5.3.
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<PAGE> 21
9.3 Effect and Survival of Disclaimers. Seller and Purchaser agree that
the provisions of this Article IX shall survive Closing.
ARTICLE X
MISCELLANEOUS
10.1 Intentionally Omitted.
10.2 Public Disclosure. Any release to the public of information with
respect to the sale contemplated herein or any matters set forth in this
Agreement prior to Closing or during the first four months following Closing,
other than as may be required or desirable under applicable law, will be made
only in the form approved by Purchaser and Seller and their respective counsel.
10.3 Discharge of Obligations. The acceptance of the Deed by Purchaser
shall be deemed to be a full performance and discharge of every representation
and warranty made by Seller herein and every agreement and obligation on the
part of Seller to be performed pursuant to the provisions of this Agreement,
except those which are herein specifically stated to survive Closing.
10.4 Assignment. Purchaser may not assign its rights under this Agreement
without first obtaining Seller's written approval, which approval may be given
or withheld in Seller's sole discretion. Under no circumstances shall Purchaser
have the right to assign this Agreement to any person or entity owned or
controlled by an employee benefit plan if Seller's sale of the Property to such
person or entity would, in the reasonable opinion of Seller's ERISA advisor,
create or otherwise cause a "prohibited transaction" under ERISA. In the event
Purchaser assigns this Agreement or transfers any ownership interest in
Purchaser, and such assignment or transfer would make the consummation of the
transaction hereunder a "prohibited transaction" under ERISA and necessitate the
termination of this Agreement then Purchaser shall be in default hereunder.
10.5 Notices. Any notice pursuant to this Agreement shall be given in
writing by (a) personal delivery, or (b) reputable overnight delivery service
with proof of delivery, or (c) United States Mail, postage prepaid, registered
or certified mail, return receipt requested, sent to the intended addressee at
the address set forth below, or to such other address or to the attention of
such other person as the addressee shall have designated by written notice sent
in accordance herewith, and shall be deemed to have been given either at the
time of personal delivery, or, in the case of expedited delivery service or
mail, as of the date of first attempted delivery during normal business hours at
the address and in the manner provided herein. Unless changed in accordance with
the preceding sentence, the addresses for notices given pursuant to this
Agreement shall be as follows:
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<PAGE> 22
If to Seller:
333 Wacker Drive Limited Partnership
c/o Equitable Real Estate Investment
Management, Inc.
455 North Cityfront Plaza Drive
Suite 3200
Chicago, Illinois 60611-5555
Attn.: Michael A. Lunder
TELECOPY: (312) 527-5172
with a copy to: Equitable Real Estate Investment Management, Inc.
1150 Lake Hearn Drive
Atlanta, Georgia 30342
Attn.: Michael J. McNamara
TELECOPY: (404) 848-8902
and to: The Equitable Life Assurance Society of the United
States
787 Seventh Avenue
New York, New York 10019
Attn.: Robert Colan
TELECOPY: (212) 554-1030
and to: Katten Muchin & Zavis
525 West Monroe Street
Suite 1600
Chicago, Illinois 60661
Attn.: Ira J. Swindler, Esq.
TELECOPY: (312) 902-1061
If to Purchaser: Overseas Partners Capital Corp.
115 Perimeter Center Place
Suite 940
Atlanta, Georgia 30346
Attn.: Legal Department
TELECOPY: (770) 913-6756
with a copy to: Overseas Partners Ltd.
Craig Appin House
8 Wesley Street
Hamilton HM GX Bermuda
Attn.: Bruce M. Barone
TELECOPY: (441) 292-9142
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<PAGE> 23
and: Keck, Mahin & Cate
77 West Wacker Drive
Suite 4200
Chicago, Illinois 60601
Attn.: Minard E. Hulse, Esq.
TELECOPY: (312) 634-5000
10.6 Intentionally Omitted.
10.7 Modifications. This Agreement cannot be changed orally, and no
executory agreement shall be effective to waive, change, modify or discharge it
in whole or in part unless such executory agreement is in writing and is signed
by the parties against whom enforcement of any waiver, change, modification or
discharge is sought.
10.8 Tenant Notification Letters. Purchaser shall deliver to each and every
tenant of the Property under a Lease thereof a signed statement acknowledging
Purchaser's receipt and responsibility for each tenant's security deposit to the
extent and in accordance with the Lease (to the extent delivered by Seller to
Purchaser at Closing), if any, all in compliance with and pursuant to the
applicable provisions of applicable law. The provisions of this paragraph shall
survive Closing.
10.9 Calculation of Time Periods. Unless otherwise specified, in computing
any period of time described in this Agreement, the day of the act or event
after which the designated period of time begins to run is not to be included
and the last day of the period so computed is to be included, unless such last
day is a Saturday, Sunday or legal holiday under the laws of the State in which
the Property is located, in which event the period shall run until the end of
the next day which is neither a Saturday, Sunday or legal holiday. The final day
of any such period shall be deemed to end at 5 p.m., Central Standard time.
10.10 Successors and Assigns. The terms and provisions of this Agreement
are to apply to and bind the permitted successors and assigns of the parties
hereto.
10.11 Entire Agreement. This Agreement, including the Exhibits, contains
the entire agreement between the parties pertaining to the subject matter hereof
and fully supersedes all prior written or oral agreements and understandings
between the parties pertaining to such subject matter.
10.12 Further Assurances. Each party agrees that it will without further
consideration execute and deliver such other documents and take such other
action, whether prior or subsequent to Closing, as may be reasonably requested
by the other party to consummate more effectively the purposes or subject matter
of this Agreement. Without limiting the generality of the foregoing, Purchaser
shall, if requested by Seller, execute acknowledgments of receipt with respect
to any materials delivered by Seller to Purchaser with respect to the Property.
The provisions of this Section 10.12 shall survive Closing.
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<PAGE> 24
10.13 Counterparts. This Agreement may be executed in counterparts, and all
such executed counterparts shall constitute the same agreement. It shall be
necessary to account for only one such counterpart in proving this Agreement.
10.14 Severability. If any provision of this Agreement is determined by a
court of competent jurisdiction to be invalid or unenforceable, the remainder of
this Agreement shall nonetheless remain in full force and effect.
10.15 Applicable Law. This Agreement is performable in the start in which
the Property is located and shall in all respects be governed by, and construed
in accordance with, the substantive federal laws of the United States and the
laws of such state. Seller and Purchaser hereby irrevocably submit to the
jurisdiction of any state or federal court sitting in the state in which the
Property is located in any action or proceeding arising out of or relating to
this Agreement and hereby irrevocably agree that all claims in respect of such
action or proceeding shall be heard and determined in a state or federal court
sitting in the state in which the Property is located. Purchaser and Seller
agree that the provisions of this section 10.15 shall survive the Closing of the
transaction contemplated by this Agreement.
10.16 No Third Party Beneficiary. The provisions of this Agreement and of
the documents to be executed and delivered at Closing are and will be for the
benefit of Seller and Purchaser only and are not for the benefit of any third
party, and accordingly, no third party shall have the right to enforce the
provisions of this Agreement or of the documents to be executed and delivered at
Closing.
10.17 Exhibits. The exhibits attached hereto shall be deemed to be an
integral part of this Agreement.
10.18 Captions. The section headings appearing in this Agreement are for
convenience of reference only and are not intended, to any extent and for any
purpose, to limit or define the text of any section or any subsection hereof.
10.19 Construction. The parties acknowledge that the parties and their
counsel have reviewed and revised this Agreement and that the normal rule of
construction to the effect that any ambiguities are to be resolved against the
drafting party shall not be employed in the interpretation of this Agreement or
any exhibits or amendments hereto.
10.20 Termination of Agreement. It is understood and agreed that if either
Purchaser or Seller terminates this Agreement pursuant to a right of termination
granted hereunder, such termination shall operate to relieve Seller and
Purchaser from all obligations under this Agreement, except for such obligations
as are specifically stated herein to survive the termination of this Agreement.
10.21 Survival. The provisions of the following Sections of this Agreement
shall survive Closing and shall not be merged into the execution and delivery of
the Deed: 3.1; 4.2(j);4.4;5.3;5.6;5.8;8.1;9.3;10.2;10.8;10.12; and 10.15.
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<PAGE> 25
IN WITNESS WHEREOF. the parties hereto have duly executed this Agreement as
of the Effective Date.
SELLER:
333 WACKER DRIVE LIMITED PARTNERSHIP an Illinois limited
partnership
By: The Equitable Life Assurance Society of the United States.
its general partner
By: /s/ Michael Lunder
------------------
Name: Michael A. Lunder
-------------------
Title: Investment Officer
-------------------
PURCHASER:
OVERSEAS PARTNERS CAPITAL CORP., a Delaware
corporation
By: /s/ Bruce M. Barone
--------------------
Name: Bruce M. Barone
--------------------
Title: President
--------------------
<PAGE> 26
Exhibit 1.1(a)
LEGAL DESCRIPTION OF THE LAND
PARCEL 1:
LOTS 7, 8 AND 9 IN ASSESSOR'S DIVISION OF LOTS 1, 2, 3, 7 AND 8 AND THE EAST
20 FEET OF LOT 6 IN BLOCK 21 IN ORIGINAL TOWN OF CHICAGO IN SECTION 9, TOWNSHIP
39 NORTH, RANGE 14, EAST OF THE THIRD PRINCIPAL MERIDIAN, IN COOK COUNTY,
ILLINOIS.
PARCEL 2:
THE EAST 1/4 OF LOT 6 AND THE WEST 1/4 OF LOT 7 IN BLOCK 21 IN ORIGINAL TOWN OF
CHICAGO, OTHERWISE KNOWN AS LOTS 10 AND 11 IN ASSESSOR'S DIVISION OF LOTS 1, 2,
3, 7 AND 8 AND THE EAST 20 FEET OF LOT 6, ALL IN SAID BLOCK 21 IN ORIGINAL TOWN
OF CHICAGO, IN THE CITY OF CHICAGO, IN COOK COUNTY, ILLINOIS.
PARCEL 3:
ALL OF LOT 5 AND THE WEST 1/2 OF LOT 6 AND THE WEST 1/2 OF THE EAST 1/2 OF LOT
6, ALL IN BLOCK 21 IN THE ORIGINAL TOWN OF CHICAGO, IN COOK COUNTY, ILLINOIS.
PARCEL 4:
THE EAST 1/4 OF LOT 1 AND THAT PART OF THE VACATED ALLEY LYING SOUTH AND
ADJOINING SAID LAND IN BLOCK 21 IN THE ORIGINAL TOWN OF CHICAGO IN SECTION 9,
TOWNSHIP 39 NORTH, RANGE 14, EAST OF THE THIRD PRINCIPAL MERIDIAN, IN COOK
COUNTY, ILLINOIS.
PARCEL 5:
THE WEST 1/2 OF THE EAST 1/2 OF LOT 1 AND THAT PART OF THE VACATED ALLEY LYING
SOUTH AND ADJOINING SAID LAND IN BLOCK 21 IN ORIGINAL TOWN OF CHICAGO IN THE
SOUTH FRACTIONAL 1/2 OF SECTION 9 TOWNSHIP 39 NORTH, RANGE 14, EAST OF THE THIRD
PRINCIPAL MERIDIAN, IN COOK COUNTY, ILLINOIS.
<PAGE> 27
PARCEL 6:
LOTS 3, 5 AND 6 IN ASSESSOR'S DIVISION OF LOTS 1, 2, 3, 7 AND 8 AND THE EAST 20
FEET OF LOT 6 IN BLOCK 21 IN ORIGINAL TOWN OF CHICAGO IN SECTION 9, TOWNSHIP 39
NORTH, RANGE 14, EAST OF THE THIRD PRINCIPAL MERIDIAN, IN COOK COUNTY, ILLINOIS.
PARCEL 7:
THE EAST 1/2 OF ORIGINAL LOT 8 IN BLOCK 21 IN THE ORIGINAL TOWN OF CHICAGO IN
THE SOUTH EAST 1/4 OF SECTION 9, TOWNSHIP 39 NORTH, RANGE 14, EAST OF THE THIRD
PRINCIPAL MERIDIAN, SOMETIMES ALSO DESCRIBED AS:
LOT 4 IN ASSESSOR'S DIVISION OF LOTS 1, 2, 3, 7 AND 8 AND THE EAST 20 FEET OF
LOT 6 IN BLOCK 21 IN ORIGINAL TOWN OF CHICAGO IN THE SOUTH EAST 1/4 OF SECTION
9, TOWNSHIP 39 NORTH, RANGE 14, EAST OF THE THIRD PRINCIPAL MERIDIAN, IN COOK
COUNTY, ILLINOIS.
<PAGE> 28
Exhibit 1.1(c)
OFFICE OF THE BUILDING
PERSONAL PROPERTY LIST
<TABLE>
<CAPTION>
===============================================
TYPE OF FURNITURE NUMBER
- -----------------------------------------------
<S> <C>
Computer Stand 1
- -----------------------------------------------
Tables:
Conference (Large) 1
Conference (Small) 1
Kitchen (Small) 1
Reception (Small) 2
- -----------------------------------------------
Chairs:
Conference Room 10
Executive High Back 3
Kitchen 3
Reception 4
Secretarial 3
Visitors 11
- -----------------------------------------------
Desks:
3
Executive 3
Secretarial
- -----------------------------------------------
Credenzas 5
- -----------------------------------------------
Ice Makers 1
- -----------------------------------------------
Bookshelves:
Lateral 4
Vertical 4
- -----------------------------------------------
IBM Series II Typewriter 1
- -----------------------------------------------
(Spiral) Binding Machine 1
- -----------------------------------------------
MIRTECH Security System 1
- -----------------------------------------------
Minolta Fax Machine 1
- -----------------------------------------------
Pitney Bowes Postage Meter 1
- -----------------------------------------------
Postage Scale 1
- -----------------------------------------------
Microwave Ovens 1
- -----------------------------------------------
Refrigerators 1
===============================================
</TABLE>
<PAGE> 29
ENGINEERING DEPARTMENT
Personal Property List
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------
ITEM QUANTITY ITEM QUANTITY
- --------------------------------------------------------------------------------
<S> <C> <C> <C>
Drill Presses 2 Screw Drivers 20
Bench Grinders 3 Desks 3
Horizontal Bandsaw 1 Credenza's 3
Bearing Press 1 File Cabinets 8
Wet/Dry Vacs 4 Chairs 10
Refrigerant Recovery Machines 3 Roll Around Tool Box 1
Hood Volumeter 1 Tap & Die Set 1
Compac PC w/Monitor 1 3/4" Drive Socket Set 1
Laser Jet Printer 1 1/2" Drive Socket Set 1
Walkie Talkies & Charger 6 3/8" Drive Socket Set 1
Toshiba Lap-Top 1 Electric Drill Sharpener 1
Wire Cart 1 Electric Router 1
Self-Contained Breathing 2 Router Bit Kit 1
Bench Vises 2 Hole Saw Kit 1
Pipe Treading Machine 1 Glue Gun 1
Tri-Pod Pipe Vise 1 Combination Wrench 24
Cordless Drill 3/8" 2 Wood Chisel Set 1
Cordless Screwdriver 1 Electric Drills 4
Portable Band Saw 1 Electric Shears 2
Table Saw 1 Megger 1
Jig Saw 1 Multimeters 2
Circular Saw 1 Amphrobe 1
Sawzall 1 Electronic Circuit Locator 1
Hand Saw 2 Kilowatt Hour Meter 1
Hack Saw 2 Charging Sensor 1
Hammers 5 Electronic Scale 1
Manometers 2 Chart Recorders 2
Fire Extinguisher's 100 Maghelic 3
CO2 Manlift 35 Oxygen First Aid Kit 1
Electric Manlift 1 Code Key Machine 1
House Fans 1 Key Duplicative Machine 2
Parts Cabinet 3 Lock Pin Kit 1
Metal Files 8 Crow Bar 3
Metal Cabinets 10 Pinch Bar 2
Electric Welders 6 Engine Hoist 1
Scaffold Set 2 Battery Charger 1
Pipe Wrenches 1 100 h.p. Electric Motor 1
Oxy-Acet Torch Sets 12 75 h.p. Electric Motor 2
Gantry Set 2 40 h.p. Electric Motor 1
2 Ton Electric Hoist 1 30 h.p. Electric Motor 2
Chain Falls 1 25 h.p. Electric Motor 1
Vacuum Pumps 2 15 h.p. Electric Motor 1
Bottle Jack 2 Garage Sweeper 1
Pallet Jack 1
First Aid Kit 1
</TABLE>
<PAGE> 30
SECURITY DEPARTMENT
Personal Property List
<TABLE>
<CAPTION>
=========================================================
RADIO NUMBER TYPE QUANTITY
- ---------------------------------------------------------
<S> <C> <C>
02 P-100 01
- ---------------------------------------------------------
04 P-100 01
- ---------------------------------------------------------
06 P-100 01
- ---------------------------------------------------------
07 P-100 01
- ---------------------------------------------------------
08 P-100 01
- ---------------------------------------------------------
10 P-100 01
- ---------------------------------------------------------
11 P-100 01
- ---------------------------------------------------------
12 P-100 01
- ---------------------------------------------------------
13 P-100 01
- ---------------------------------------------------------
- ---------------------------------------------------------
TOTAL: 09 Radios
- ---------------------------------------------------------
- ---------------------------------------------------------
- ---------------------------------------------------------
RADIO NUMBER TYPE QUALITY
- ---------------------------------------------------------
14 P-50 01
- ---------------------------------------------------------
05 P-50 01
- ---------------------------------------------------------
15 P-50 01
- ---------------------------------------------------------
01 SP-50 01
- ---------------------------------------------------------
02 SP-50 01
- ---------------------------------------------------------
03 SP-50 01
- ---------------------------------------------------------
17 SP-50 01
- ---------------------------------------------------------
09 SP-50 01
- ---------------------------------------------------------
16 SP-50 01
- ---------------------------------------------------------
- ---------------------------------------------------------
TOTAL: 09 Radios
- ---------------------------------------------------------
- ---------------------------------------------------------
TOTAL RADIOS: 18 Radios
- ---------------------------------------------------------
- ---------------------------------------------------------
06 Unit Charging Station 02
- ---------------------------------------------------------
P-50 Charges Single Unit 06
- ---------------------------------------------------------
P-100 Charges Single Unit 02
- ---------------------------------------------------------
- ---------------------------------------------------------
TOTAL CHARGERS: 10
- ---------------------------------------------------------
- ---------------------------------------------------------
- ---------------------------------------------------------
Revised: 11/26/96
- ---------------------------------------------------------
- ---------------------------------------------------------
</TABLE>
<PAGE> 31
EXHIBIT 1.1(d)
333 WACKER DRIVE
LEASE SUMMARY
<TABLE>
<CAPTION>
TENANT SUITE DOCUMENT DATE
- -----------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Ameritech Health Connections, Inc. 2900 Lease 05/12/93
Arbor Office Suites 700 Lease 12/10/84
Arbor Office Suites 700 Agreement 11/29/89
Arbor Office Suites 700 Storage Agreement 07/30/96
Arbor Office Suites 700 Amendment to Lease 08/31/92
Bain & Company, Inc. 3000 First Amendment to Lease 10/16/94
Bain & Company, Inc. 3000 Lease 08/25/94
Bain & Company, Inc. 3000 Storage Agreement Not Dated
Bain & Company, Inc. 3000 Subordination, Non-Disturbance Agreement 03/08/95
Barack, Ferrazzano, Kirchbaum & Perlman 2700 Lease 12/01/87
Barack, Ferrazzano, Kirchbaum & Perlman 2700 First Amendment to Lease 02/05/92
Barack, Ferrazzano, Kirchbaum & Perlman 2700 Second Amendment to Lease 07/16/93
Barack, Ferrazzano, Kirchbaum & Perlman 2700 Third Amendment to Lease 11/30/94
Barack, Ferrazzano, Kirchbaum & Perlman 2700 Storage Agreement 03/08/95
Bard, Rao & Athanas Consulting Engineers 420 Lease 06/06/94
Bayerische Vereinbank AG 680 Lease 05/13/87
Bjork Group 620 Letter Agreement 01/03/94
Bjork Group 620 Extension Agreement 01/26/96
Bjork Group 620 Extension Agreement 11/26/96
Bjork Group 620 Guaranty 01/31/91
Bjork Group 620 First Amendment 01/31/94
Bjork Group 620 Lease 02/26/86
Boker Investment Management, Inc. 1410 Extension Agreement 02/26/86
Boker Investment Management, Inc. 1410 Second Amendment to Lease 12/19/90
Boker Investment Management, Inc. 1410 Amendment to Lease 05/04/87
Boker Investment Management, Inc. 1410 Lease 09/05/86
Bulgarian American Enterprise Fund 2080 First Amendment to Lease 08/22/95
Bulgarian American Enterprise Fund 2080 Lease 03/31/92
Burditt & Radzius, Chartered 2600 Lease 11/16/84
Burditt & Radzius, Chartered 2600 Amendment to Lease 07/26/87
Burditt & Radzius, Chartered 2600 Second Amendment to Lease 04/27/88
Burditt & Radzius, Chartered 2600 Third Amendment to Lease 02/28/91
Burditt & Radzius, Chartered 2600 Fourth Amendment to Lease 08/30/91
Carnow, Conibear & Associates, Ltd. 1400 Letter of Agreement 09/20/90
</TABLE>
<PAGE> 32
<TABLE>
<CAPTION>
TENANT SUITE DOCUMENT DATE
- -----------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Carnow, Conibear & Associates, Ltd. 1400 Guaranty 06/12/85
Carnow, Conibear & Associates, Ltd. 1400 First Amendment to Lease 12/07/93
Carnow, Conibear & Associates, Ltd. 1400 Lease Not Dated
Cassiday, Schade & Cloor 1100 & 1200 Fourth Amendment to Lease 12/01/92
Cassiday, Schade & Cloor 1100 & 1200 Third Amendment to Lease 08/01/85
Cassiday, Schade & Cloor 1100 & 1200 Letter Agreement 10/20/94
Cassiday, Schade & Cloor 1100 & 1200 Amendment to Lease 10/31/85
Cassiday, Schade & Cloor 1100 & 1200 Addendum to Lease 05/01/85
Cassiday, Schade & Cloor 1100 & 1200 Lease 08/04/81
Cassiday, Schade & Cloor 1100 & 1200 Second Amendment to Lease 05/14/86
Cassiday, Schade & Cloor 1100 & 1200 Storage Agreement 10/16/96
Chicago Title & Trust Company 2020 Lease 03/30/94
Daniel S. Hefter & Associates 1650 First Amendment to Lease 04/11/90
Daniel S. Hefter & Associates 1650 Lease 3/89
Daniel S. Hefter & Associates 1650 Third Amendment to Lease 9/95
Daniel S. Hefter & Associates 1650 Assignment of Lease 02/07/92
Daniel S. Hefter & Associates 1650 Second Amendment to Lease 11/29/93
Digital Services Corporation Roof Lease 08/01/96
Digital Services Corporation Roof Assignment and Assumption 09/30/96
Digital Services Corporation Roof Landlord's Consent of Assignment 11/21/96
Facilities Capital Corporation 1750 Lease 08/10/93
Facilities Capital Corporation 1750 First Amendment to Lease 04/21/94
Facilities Capital Corporation 1750 Guaranty 08/10/93
Facilities Capital Corporation 1750 Settlement Agreement and Release 08/28/96
Fallon McElligot Incorporated 1430 Lease 9/94
Federal Home Loan Mortgage Corporation 210 & 2500 Amendment to Lease 09/30/86
Federal Home Loan Mortgage Corporation 210 & 2500 Second Amendment to Lease 08/29/89
Federal Home Loan Mortgage Corporation 210 & 2500 Fourth Amendment to Lease 12/31/92
Federal Home Loan Mortgage Corporation 210 & 2500 Third Amendment to Lease 01/27/92
Federal Home Loan Mortgage Corporation 210 & 2500 Fifth Amendment to Lease 01/31/95
Federal Home Loan Mortgage Corporation 210 & 2500 Lease 10/30/85
Fist Portland Corporation 240 Lease 12/04/96
Federal Home Loan Mortgage Corporation 210 & 2500 Addendum to Lease 02/08/86
Forensic Technologies International, Inc. 600 Lease 06/16/93
</TABLE>
<PAGE> 33
333 WACKER DRIVE
LEASE SUMMARY
<TABLE>
<CAPTION>
TENANT SUITE DOCUMENT DATE
- -----------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Grayrock Capital Group, Inc. 1450 Lease 03/27/95
Grayrock Capital Group, Inc. 1860 First Amendment to Lease 11/10/96
Grosvenor Capital Management, L.P. 1600 Third Amendment to Lease 05/23/96
Grosvenor Capital Management, L.P. 1600 Lease 11/02/92
Grosvenor Capital Management, L.P. 1600 First Amendment to Lease 05/14/94
Grosvenor Capital Management, L.P. 1600 Second Amendment to Lease 05/23/95
Haggerty, Koenig & Hill 510 Lease 07/22/92
Harris, Rothenberg International 820 Lease Not Dated
Harris, Rothenberg International 810 First Amendment to Lease 02/27/95
Horwood, Marcus & Braun 2800 Lease 03/01/89
Horwood, Marcus & Braun 2800 Addendum to Lease 05/07/89
Horwood, Marcus & Braun 2800 First Lease Agreement 07/01/91
Horwood, Marcus & Braun 2800 Second Lease Agreement 04/30/92
James Layton International, Inc. 1050 Lease 04/08/93
John Nuveen & Company, Incorporated 31-36 Flrs. First Amendment to Lease 02/27/86
John Nuveen & Company, Incorporated 31-36 Flrs. Lease 08/10/84
John Nuveen & Company, Incorporated 31-36 Flrs. Second Amendment to Lease 01/29/88
John Nuveen & Company, Incorporated 31-36 Flrs. Fourth Amendment to Lease 02/28/92
John Nuveen & Company, Incorporated 31-36 Flrs. Fifth Amendment to Lease 01/01/93
John Nuveen & Company, Incorporated 31-36 Flrs. Third Amendment to Lease 10/30/89
Karad Drug Company, Inc. Lobby Lease 9/94
Karad Drug Company, Inc. Lobby First Amendment to Lease 08/31/95
Katz Randall & Weinberg 1700 & 1800 Agreement 11/10/95
Katz Randall & Weinberg 1700 & 1800 Lease 04/30/95
Kensington International 610 Lease 08/30/94
Kenwood Associates, Inc. 400 Lease 02/01/96
Linda's Magic Nails ML100 Lease 01/02/96
MacKelvie & Associates 830 First Amendment to Lease 08/07/95
MacKelvie & Associates 830 Lease 09/94
National Equity Advisors, Inc. 2070 Lease 09/22/94
Nythan, Pfister, Bambrick & Kinzie, P.C. 810 Lease 01/24/92
Pepi Corporation Lobby Lease Not Dated
Performance Analytics, Inc. 1010 Lease 05/04/92
Performance Analytics, Inc. 1010 First Amendment to Lease 07/31/96
</TABLE>
<PAGE> 34
333 WACKER DRIVE
LEASE SUMMARY
<TABLE>
<CAPTION>
TENANT SUITE DOCUMENT DATE
- -----------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Physician Advisors to Disability Managers 470 Lease 10/28/95
Rose & Associates 1710 Letter of Agreement 11/10/95
Rose & Associates 1710 Lease 10/18/95
Sanchez & Daniels 500 First Amendment to Lease 10/31/95
Sanchez & Daniels 500 Lease 12/12/91
Sheldon F. Good Realty, Inc. 450 Lease 10/31/96
Sheldon F. Good Realty, Inc. 450 First Amendment to Lease 09/13/96
Sheldon F. Good Realty, Inc. 450 Storage Agreement 02/01/87
Skadden, Arps, Slate, Meagher & Flom 21-23 Flrs. Storage Agreement 02/17/94
Skadden, Arps, Slate, Meagher & Flom 21-23 Flrs. Lease 08/30/88
Spectra Marketing Systems, Inc. 900 Lease 05/96
Tetra Pak Inc. 1500 & 1620 First Amendment to Lease 03/14/94
Tetra Pak Inc. 1500 & 1620 Lease Not Dated
Tetra Pak Inc. 1500 & 1620 Addendum to Lease 05/91
Tilton & Lewis Associates, Inc. 200 First Amendment to Lease 09/30/93
Tilton & Lewis Associates, Inc. 200 Lease 03/10/86
AAR/RAILINC 2950 Third Amendment to Sublease 05/30/96
AAR/RAILINC 2950 Assumption and Consent 12/15/93
AAR/RAILINC 2950 Second Amendment to Sublease 02/23/94
AAR/RAILINC 2950 Lease 12/02/87
AAR/RAILINC 2950 First Amendment to Sublease 01/31/91
AAR/RAILINC 2950 Assumption and Consent 08/01/93
Urban Investment and Development 2100 Fourth Amendment to Lease 01/24/86
Urban Investment and Development 2100 Second Amendment to Lease 01/30/94
Urban Investment and Development 2100 Third Amendment to Lease 05/01/85
Urban Investment and Development 2100 Amendment to Lease 05/01/93
Urban Investment and Development 2100 Fifth Amendment to Lease 01/29/87
Urban Investment and Development 2100 Sixth Amendment to Lease 06/30/88
Urban Investment and Development 2100 Lease 05/01/83
VTEL Corporation 1060 Lease 05/96
</TABLE>
<PAGE> 35
Exhibit 1.1(e)
OPERATING AGREEMENT SCHEDULE
Janitorial Service Agreement with Admiral Maintenance Service, L.P. dated
September 1, 1995.
Security Office Contract with ABM Security Services dated October 1, 1996.
Elevator Maintenance Agreement with Otis Elevator dated January 1, 1996.
Exterior Landscaping and Plant Maintenance Service Agreement with Brickman
Landscape dated April 1, 1995.
Interior Landscaping and Plant Maintenance Service Agreement with Interior
Garden Services, Inc. dated April 1, 1995.
Maintenance, Mechanical and Electrical Operations Management Agreement with
Unicco Services Company dated August 15, 1996.
Fire Alarm System Test and Inspection with Advanced Fire dated September 1,
1994.
Parking Facility Management Agreement with General Parking, L.P. dated January
1, 1995.
Maintenance Service Agreement with Metal Maintenance, Inc. dated November 1,
1995.
Waste Removal Service Agreement with Browning-Ferris Industries dated June 1,
1993.
Energy Management Agreement with Landis & Gyr dated January 1, 1994.
Window Cleaning Agreement with BSS Services, Inc. dated October 1, 1994.
Window Equipment Maintenance Agreement with Skyline Maintenance dated March 1,
1993.
Revolving Door Maintenance Agreement with Midwest Door Services dated November
1, 1993.
Energycheck Services with Servidyne dated January 1, 1994.
Pest Control Service Agreement with C&C Pest Control dated August 1, 1996.
Copy Machine Maintenance Agreement with Minolta/Copelco Leasing dated February
26, 1994.
<PAGE> 36
OPERATING AGREEMENT SCHEDULE
Computer Software Service/Maintenance Agreement with Sanwa Leasing dated
February 28, 1996.
Laptop Computer Service/Maintenance Agreement with Sanwa Leasing dated February
28, 1996.
Conference Room Furniture lease with Bankers Leasing dated November 1, 1996.
Communications Service Agreement with MFS/Realcom dated July 31, 1996.
Tenant Work Order Software Service/Maintenance Agreement with American Computer
Company dated November 18, 1996.
Security Card Access Service/Maintenance Agreement with Mirtech International
Security dated January 1, 1994.
Lease Commission Agreement between COMPASS Management & Leasing, Inc. and CB
Commercial Real Estate Group, Inc. dated December 6, 1996 for Nyhan, Pfister,
Bambrick & Kinzie.
Lease Commission Agreement between COMPASS Management & Leasing, Inc. and
Frederick J. Panici, broker, dated November 15, 1996 for The Bjork Group.
Lease Commission Agreement between COMPASS Management & Leasing, Inc. and CB
Commercial Real Estate Group, Inc. dated December 6, 1996 for FTI Corporation.
Lease Commission Agreement between COMPASS Management & Leasing, Inc. and Frain
Camins & Swartchild dated November 29, 1996 for Kensington International.
Lease Commission Agreement between COMPASS Management & Leasing, Inc. and Frain
Camins & Swartchild dated October 16, 1996 for Cassiday, Schade & Gloor.
Service Agreement with Ballost and Lamp Recycling, Inc.
Maintenance Agreement/Mail Machine with Pitney Bowes.
Lease Agreement with Mister Leasing Corporation dated September, 1992.
<PAGE> 37
Exhibit 2.4
1. Zoning 3.1 (with parking and loading)
2. Owners Comprehensive
3. Survey
4. Access
5. Deletion of Creditors' Rights Exclusion
6. Tax Parcel
7. Location
8. Contiguity
9. Encroachment Endorsement for Caisson Bells
<PAGE> 38
Exhibit 2.4(d)
PERMITTED EXCEPTIONS
1. Permanent, perpetual and exclusive easement and right of way of the
construction, maintenance, and operation of subways and tunnels, as
condemned by the City of Chicago, a municipal corporation, in case
number 39C11577, Circuit Court of Cook County, Illinois, in, through
and under part of the land.
2. Encroachments of the caissons located mainly on the land over the
Southerly line of the land onto Lake Street by up to 4.86 feet, over the
Easterly line of the land onto Franklin Street by up to 3.55 feet, and
over the Northwesterly line of the land onto Wacker Drive by up to 5.20
feet.
<PAGE> 39
Exhibit 4.4(b)(iv)(A)
Tenant Inducement Costs & Leasing Commissions
<TABLE>
<CAPTION>
Base-
Base- Bldg. Leasing
Square Alterations Bldg. Capital Leasing Commissions Total Purchaser Seller
Project/Tenant Feet Alterations Expended Capital Expended Commissions Expended Expended Credit Credit
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
First Portland Corporation 1,127 $7,384.10 $6,119.00 $0.00 $0.00 $4,189.44 $0.00 $6,119.00 $0.00 $6,119.00
Totals $7,384.10 $6,119.00 $0.00 $0.00 $4,189.44 $0.00 $6,119.00 $0.00 $6,119.00
</TABLE>
<PAGE> 40
EXHIBIT 4.4(b)(iv)(B)
TENANT INDUCEMENT COSTS & LEASING COMMISSIONS
<TABLE>
<CAPTION>
Base-Bldg. Leasing
Alterations Base-Bldg. Capital Leasing Commissions Total
Project/Tenant Square Feet Alterations Expended Capital Expended Commissions Expended Expended
-------------- ----------- ----------- -------- ------- -------- ----------- -------- --------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Performance Analytics 10,199 $ 35,695.00 $ 11,100.36 $ 7,578.00 $ 7,758.00 $ 81,989.82 $ 81,989.82 $ 100,666.18
Spectra Marketing 14,875 $383,750.00 $302.886.81 $ 0.00 $ 0.00 $111,318.34 $111,318.34 $ 414,205.15
Kenwood Associates 10,991 $ 29,126.00 $ 0.00 $ 0.00 $ 0.00 $ 70,069.10 $ 70,069.10 $ 70,069.10
Facility Capital Corporation 3,479 $ 50,000.00 $ 32,141.00 $ 0.00 $ 0.00 $ 0.00 $ 0.00 $ 32,141.00
Sheldon Good Realty 7,182 $ 6,486.00 $ 6,486.00 $ 0.00 $ 0.00 $ 22,587.39 $ 22,587.39 $ 29,073.39
Nations Credit 3,702 $ 65,748.00 $ 5,775.00 $ 0.00 $ 0.00 $ 10,841.35 $ 10,841.35 $ 16,616.35
Voice Evacuation System(1) $ 0.00 $ 0.00 $640,000.00 $560,000.00 $ 0.00 $ 0.00 $ 560,000.00
Totals $573,805.00 $358,389.17 $647,578.00 $567,576.00 $296,806.00 $296,806.00 $1,222,771.17
</TABLE>
(1) Completion of the Voice Evacuation System is anticipated for first quarter
1997 at an additional cost of $80,000.
<PAGE> 41
EXHIBIT 4.4(b)(iv)(C)
December 20, 1996
Protected Transactions for Compass Management and Leasing, Inc.
<TABLE>
<CAPTION>
Transaction Name Square Footage/Floor Cooperating Broker
- ---------------- -------------------- ------------------
<S> <C> <C>
1. Harris Rothenberg International 1,111 rsf/9 or 18 None.
2. MacKelvie and Associates 3,924 rsf/9 None.
3. Nyhan, Pfister, Bambrick and Kinzie 10,497 rsf/8 CB Commercial.
4. FTI International 7,899 rsf/6 CB Commercial.
5. The Bjork Group 1,300/9,2 or 18 Frederick J. Panici.
6. John Nuveen & Company, Inc. 4,833 rsf/30 None. Nuveen compensating
John Buck Company.
7. Bain & Company 3,600 rsf/30 None.
8. Spectra Marketing 2,045 rsf/9 None.
9. Bayerische Vereinsbank 6,500 rsf/6 Galbreath.
10. Ameritech 16,000 rsf/3 Equis
11. Fallon McElligott 3,500 rsf/14 or 6 None.
12. Kensington International 1,929 rsf/6 Frain, Carrins & Swartchild.
13. KSM Associates, Inc. 1,781 rsf/16 None.
14. Cassiday, Schade & Gloor 49,516 rsf/10, 11 and 12 Frain, Carrins & Swartchild.
15. John Nuveen & Company, Inc. 116,722 rsf/30-36 John Buck Company.
16. Skadden, Arps, Slate, Meagher & Flom 126,235 rsf/19-24 LaSalle Partners.
17. Bain & Company 10,285 rsf/29 None.
18. Lanier Worldwide Inc. 7,572 rsf/17 Equity Resources.
19. Blatt, Hammesfahr & Eaton 5,000 rsf/20 Julien J. Studley
20. 2020 Associates 4,500 rsf/20 or 6 None.
21. Fakhra Travel 1,000/2 None.
22. United Advertising 3,000 rsf/9 or 2 Frain Carrins & Swartchild.
23. Richard Michael Group 7,572 rsf/17 Grubb & Ellis.
24. CMW Mortgage 2,500 rsf/2 U.S. Equities Realty.
25. Harris 16,000 rsf/3 Bennett & Kahnweiler.
26. Pencor Marketing and Publications 5,000 rsf/2,6, or 9 Bennett & Kahnweiler.
27. Fisher & Fisher 6,000 rsf/6 JP Commercial.
28. Physician Advisors Group 3,525 rsf/4 Equity Resources.
29. Kenwood Associates 3,525 rsf/4 Equity Resources.
30. Sheldon Good & Company 1,991 rsf/4 Goldie B. Wolfe & Company.
31. Bard, Rao & Athanas 4,500 rsf/2, 6, 9 or 18 Rose and Associates.
32. Archer Management 3,600 rsf/2, 6 or 10 None.
33. Barack, Ferrazzano, Kirschbaum
and Perlman. 3,189/28 None.
</TABLE>
<PAGE> 42
EXHIBIT 5.1(c)
EXCEPTIONS TO LEASE REPRESENTATIONS
1. An audit of operating expenses and real estate taxes is being conducted by
Cassiday, Schade & Gloor.
<PAGE> 43
EXHIBIT 5.1(e)
[COMPASS MANAGEMENT AND LEASING, INC. LETTERHEAD]
MEMORANDUM
TO: Ira Swidler
Michael Lunder
FROM: Lloyd Berry
DATE: December 19, 1996
SUBJECT: 333 West Wacker Drive
Notice from the Chicago Bureau of Fire Prevention
- --------------------------------------------------------------------------------
COMPASS was notified by the City of Chicago Bureau of Fire Prevention of certain
violations of the Municipal Code related to two particular issues:
1. Test of the fire alarm and evacuation system and submittal of final results
to the Bureau. We have tested the fire alarm and submitted final results. We
have not tested the voice evacuation system as a result of our replacement of
the system. We will test the system and submit results upon completion of the
capital project. The delay in fulfilling this violation is a direct result of
delays caused by the City of Chicago Bureau of Fire Prevention in approving our
final plans for the new system.
2. As a result of changes to the Municipal Code in 1996, tenants with
electro-magnetic locks must submit plans to the Bureau of Fire Prevention for
approval of their existing system. This condition exists with nine tenants.
We will work with the nine affected tenants to correct these violations. These
actions are the direct result of changes to the Municipal Code.
I am attaching a copy of the notice we received from the City of Chicago Bureau
of Fire Prevention for your review.
Please contact me if you have any questions.
/s/ Lloyd
- --------------------
Lloyd
attachments
<PAGE> 44
EXHIBIT 5.1(e)
AREA C01 CITY OF CHICAGO ICN 3045231
------- BUREAU OF FIRE PREVENTION -----------
444 NO. DEARBORN ST.
CHICAGO, IL 60610
RAYMOND E. OROZCO [SEAL]
Fire Commissioner
JOHN T. ORMOND
Deputy Fire Commissioner
COMPASS MANAGEMENT DATE OF INSPECTION 11/01/96
T.J. BROOKOVER, MGR. --------------------
333 W. WACKER DATE OF NOTICE 11/18/96
ROOM 880 ------------------------
CHICAGO IL 60606 WIDTH 00720 LENGTH 00360 HEIGHT 036 04
------- ------- -------
BLDG NO 00000 TENANT NO.
--------- ------------
FLOOR 000 ROOM TYPE AN
----- --------- -----------
CONS'T R BADGE NO. 124
-------- ---------------
OCCUP CLASS E100 M001
---------------------------
You are hereby notified as owner, agent, lessee or occupant of the structure
located at 00333 W. WACKER
---------------------------------------------------------------------
0095 001449
SEC. 13-160-269 PROVIDE APPROVED ELECTRO-MAGNETIC LOCKING DEVICES ON
EXIT DOOR(S). SUBMIT THREE (3) SETS OF PLANS TO THE BUREAU OF FIRE
PREVENTION AND OBTAIN APPROVAL BEFORE STARTING WORK.
33RD FLOOR EAST (SENSOR)
0096 001451
SEC. 13-160-269 REMOVED UNAPPROVED ELECTRO-MAGNETIC LOCKING DEVICE(S).
33RD FLOOR WEST (SENSOR)
0097 001449
SEC. 13-160-269 PROVIDE APPROVED ELECTRO-MAGNETIC LOCKING DEVICES ON
EXIT DOORS(S). SUBMIT THREE (3) SETS OF PLANS TO THE BUREAU OF FIRE
PREVENTION AND OBTAIN APPROVAL BEFORE STARTING WORK.
33RD FLOOR WEST (SENSOR)
<PAGE> 45
AREA C01 CITY OF CHICAGO ICN 3045231
------- BUREAU OF FIRE PREVENTION -----------
444 NO. DEARBORN ST.
CHICAGO, IL 60610
RAYMOND E. OROZCO [SEAL]
Fire Commissioner
JOHN T. ORMOND
Deputy Fire Commissioner
COMPASS MANAGEMENT DATE OF INSPECTION 11/01/96
T.J. BROOKOVER, MGR. --------------------
333 W. WACKER DATE OF NOTICE 11/18/96
ROOM 880 ------------------------
CHICAGO IL 60606 WIDTH 00720 LENGTH 00360 HEIGHT 036 04
------- ------- -------
BLDG NO 00000 TENANT NO.
--------- ------------
FLOOR 000 ROOM TYPE AN
----- --------- -----------
CONS'T R BADGE NO. 124
-------- ---------------
OCCUP CLASS E100 M001
---------------------------
You are hereby notified as owner, agent, lessee or occupant of the structure
located at 00333 W. WACKER
---------------------------------------------------------------------
to report to a Compliance Board Hearing to be held on
December 10, 1996 9:00 A.M. at 558 W. DEKOVEN
A recent reinspection of the above premises indicates that
notices previously sent by the City of Chicago concerning
violations of the Municipal Code have apparently been
disregarded.
You are hereby given an opportunity to explain the failure to
comply with the Municipal Code. Failure to respond will result
in a lawsuit being initiated against you.
0013 001295
SECTION 13-76-030, 13-76-040, 13-76-050, 13-76-060, 13-76-070,
13-76-080, 13-76-100, 13-76-120 PROVIDE FOR A TEST OF THE FIRE ALARM AND
EVACUATION SYSTEM. THE TEST PROCEDURE, THE INDIVIDUALS OR ORGANIZATION
CONDUCTING SAID TEST, AND THE FINAL RESULTS MUST BE APPROVED BY THE FIRE
PREVENTION BUREAU.
0093 001451
SEC. 13-160-269 REMOVED UNAPPROVED ELECTRO-MAGNETIC LOCKING DEVICE(S).
34TH FLOOR HUMAN RESOURCES
0094 001451
SEC. 13-160-269 REMOVED UNAPPROVED ELECTRO-MAGNETIC LOCKING DEVICE(S).
33RD FLOOR EAST (SENSOR)
<PAGE> 46
AREA C01 CITY OF CHICAGO ICN 3045231
------- BUREAU OF FIRE PREVENTION -----------
444 NO. DEARBORN ST.
CHICAGO, IL 60610
RAYMOND E. OROZCO [SEAL]
Fire Commissioner
JOHN T. ORMOND
Deputy Fire Commissioner
COMPASS MANAGEMENT DATE OF INSPECTION 11/01/96
T.J. BROOKOVER, MGR. --------------------
333 W. WACKER DATE OF NOTICE 11/18/96
ROOM 880 ------------------------
CHICAGO IL 60606 WIDTH 00720 LENGTH 00360 HEIGHT 036 04
------- ------- -------
BLDG NO 00000 TENANT NO.
--------- ------------
FLOOR 000 ROOM TYPE AN
----- --------- -----------
CONS'T R BADGE NO. 124
-------- ---------------
OCCUP CLASS E100 M001
---------------------------
You are hereby notified as owner, agent, lessee or occupant of the structure
located at 00333 W. WACKER
---------------------------------------------------------------------
0098 001870
SEC. 15-4-870, 13-160-260, 2-36-280 KEEP ALL EXIT DOORS SO THAT THEY
CAN BE EASILY OPENED FROM THE INSIDE WITHOUT THE USE OF A KEY OR ANY
SPECIAL KNOWLEDGE.
33RD FLOOR
0099 001451
SEC. 13-160-269 REMOVED UNAPPROVED ELECTRO-MAGNETIC LOCKING DEVICE(S).
32ND FLOOR RECEPTION NORTH
0100 001449
SEC. 13-160-269 PROVIDE APPROVED ELECTRO-MAGNETIC LOCKING DEVICES ON
EXIT DOOR(S). SUBMIT THREE (3) SETS OF PLANS TO THE BUREAU OF FIRE
PREVENTION AND OBTAIN APPROVAL BEFORE STARTING WORK.
32ND FLOOR RECEPTION NORTH
<PAGE> 47
AREA C01 CITY OF CHICAGO ICN 3045231
------- BUREAU OF FIRE PREVENTION -----------
444 NO. DEARBORN ST.
CHICAGO, IL 60610
RAYMOND E. OROZCO [SEAL]
Fire Commissioner
JOHN T. ORMOND
Deputy Fire Commissioner
COMPASS MANAGEMENT DATE OF INSPECTION 11/01/96
T.J. BROOKOVER, MGR. --------------------
333 W. WACKER DATE OF NOTICE 11/18/96
ROOM 880 ------------------------
CHICAGO IL 60606 WIDTH 00720 LENGTH 00360 HEIGHT 036 04
------- ------- -------
BLDG NO 00000 TENANT NO.
--------- ------------
FLOOR 000 ROOM TYPE AN
----- --------- -----------
CONS'T R BADGE NO. 124
-------- ---------------
OCCUP CLASS E100 M001
---------------------------
You are hereby notified as owner, agent, lessee or occupant of the structure
located at 00333 W. WACKER
---------------------------------------------------------------------
0101 001451
SEC. 13-160-269 REMOVED UNAPPROVED ELECTRO-MAGNETIC LOCKING DEVICE(S).
32ND FLOOR ADVISORY CORP
0102 001449
SEC. 13-160-269 PROVIDE APPROVED ELECTRO-MAGNETIC LOCKING DEVICES ON
EXIT DOOR(S). SUBMIT THREE (3) SETS OF PLANS TO THE BUREAU OF FIRE
PREVENTION AND OBTAIN APPROVAL BEFORE STARTING WORK.
32ND FLOOR ADVISORY CORP
0103 001451
SEC. 13-160-269 REMOVED UNAPPROVED ELECTRO-MAGNETIC LOCKING DEVICE(S).
32ND FLOOR EAST SIDE
0104 001449
SEC. 13-160-269 PROVIDE APPROVED ELECTRO-MAGNETIC LOCKING DEVICES ON
EXIT DOOR(S). SUBMIT THREE (3) SETS OF PLANS TO THE BUREAU OF FIRE
PREVENTION AND OBTAIN APPROVAL BEFORE STARTING WORK.
32ND FLOOR EAST SIDE
<PAGE> 48
AREA C01 CITY OF CHICAGO ICN 3045231
------- BUREAU OF FIRE PREVENTION -----------
444 NO. DEARBORN ST.
CHICAGO, IL 60610
RAYMOND E. OROZCO [SEAL]
Fire Commissioner
JOHN T. ORMOND
Deputy Fire Commissioner
COMPASS MANAGEMENT DATE OF INSPECTION 11/01/96
T.J. BROOKOVER, MGR. --------------------
333 W. WACKER DATE OF NOTICE 11/18/96
ROOM 880 ------------------------
CHICAGO IL 60606 WIDTH 00720 LENGTH 00360 HEIGHT 036 04
------- ------- -------
BLDG NO 00000 TENANT NO.
--------- ------------
FLOOR 000 ROOM TYPE AN
----- --------- -----------
CONS'T R BADGE NO. 124
-------- ---------------
OCCUP CLASS E100 M001
---------------------------
You are hereby notified as owner, agent, lessee or occupant of the structure
located at 00333 W. WACKER
---------------------------------------------------------------------
0105 001451
SEC. 13-160-269 REMOVED UNAPPROVED ELECTRO-MAGNETIC LOCKING DEVICE(S).
32ND FLOOR WEST SIDE
0106 001449
SEC. 13-160-269 PROVIDE APPROVED ELECTRO-MAGNETIC LOCKING DEVICES ON
EXIT DOOR(S). SUBMIT THREE (3) SETS OF PLANS TO THE BUREAU OF FIRE
PREVENTION AND OBTAIN APPROVAL BEFORE STARTING WORK.
32ND FLOOR WEST SIDE
0107 001451
SEC. 13-160-269 REMOVED UNAPPROVED ELECTRO-MAGNETIC LOCKING DEVICE(S).
31ST FLOOR PRESENTATION ROOM
0108 001449
SEC. 13-160-269 PROVIDE APPROVED ELECTRO-MAGNETIC LOCKING DEVICES ON
EXIT DOORS(S). SUBMIT THREE (3) SETS OF PLANS TO THE BUREAU OF FIRE
PREVENTION AND OBTAIN APPROVAL BEFORE STARTING WORK.
31ST FLOOR PRESENTATION ROOM
<PAGE> 49
AREA C01 CITY OF CHICAGO ICN 3045231
------- BUREAU OF FIRE PREVENTION -----------
444 NO. DEARBORN ST.
CHICAGO, IL 60610
RAYMOND E. OROZCO [SEAL]
Fire Commissioner
JOHN T. ORMOND
Deputy Fire Commissioner
COMPASS MANAGEMENT DATE OF INSPECTION 11/01/96
T.J. BROOKOVER, MGR. --------------------
333 W. WACKER DATE OF NOTICE 11/18/96
ROOM 880 ------------------------
CHICAGO IL 60606 WIDTH 00720 LENGTH 00360 HEIGHT 036 04
------- ------- -------
BLDG NO 00000 TENANT NO.
--------- ------------
FLOOR 000 ROOM TYPE AN
----- --------- -----------
CONS'T R BADGE NO. 124
-------- ---------------
OCCUP CLASS E100 M001
---------------------------
You are hereby notified as owner, agent, lessee or occupant of the structure
located at 00333 W. WACKER
---------------------------------------------------------------------
0109 001451
SEC. 13-160-269 REMOVED UNAPPROVED ELECTRO-MAGNETIC LOCKING DEVICE(S).
30TH FLOOR RECEPTION (SENSOR)
0110 001449
SEC. 13-160-269 PROVIDE APPROVED ELECTRO-MAGNETIC LOCKING DEVICES ON
EXIT DOOR(S). SUBMIT THREE (3) SETS OF PLANS TO THE BUREAU OF FIRE
PREVENTION AND OBTAIN APPROVAL BEFORE STARTING WORK.
30TH FLOOR RECEPTION (SENSOR)
0111 001451
SEC. 13-160-269 REMOVED UNAPPROVED ELECTRO-MAGNETIC LOCKING DEVICE(S).
29TH FLOOR AMERITECH SOUTH
0112 001449
SEC. 13-160-269 PROVIDE APPROVED ELECTRO-MAGNETIC LOCKING DEVICES ON
EXIT DOOR(S). SUBMIT THREE (3) SETS OF PLANS TO THE BUREAU OF FIRE
PREVENTION AND OBTAIN APPROVAL BEFORE STARTING WORK.
29TH FLOOR AMERITECH SOUTH
<PAGE> 50
AREA C01 CITY OF CHICAGO ICN 3045231
------- BUREAU OF FIRE PREVENTION -----------
444 NO. DEARBORN ST.
CHICAGO, IL 60610
RAYMOND E. OROZCO [SEAL]
Fire Commissioner
JOHN T. ORMOND
Deputy Fire Commissioner
COMPASS MANAGEMENT DATE OF INSPECTION 11/01/96
T.J. BROOKOVER, MGR. --------------------
333 W. WACKER DATE OF NOTICE 11/18/96
ROOM 880 ------------------------
CHICAGO IL 60606 WIDTH 00720 LENGTH 00360 HEIGHT 036 04
------- ------- -------
BLDG NO 00000 TENANT NO.
--------- ------------
FLOOR 000 ROOM TYPE AN
----- --------- -----------
CONS'T R BADGE NO. 124
-------- ---------------
OCCUP CLASS E100 M001
---------------------------
You are hereby notified as owner, agent, lessee or occupant of the structure
located at 00333 W. WACKER
---------------------------------------------------------------------
0114 001449
SEC. 13-160-269 PROVIDE APPROVED ELECTRO-MAGNETIC LOCKING DEVICES ON
EXIT DOOR(S). SUBMIT THREE (3) SETS OF PLANS TO THE BUREAU OF FIRE
PREVENTION AND OBTAIN APPROVAL BEFORE STARTING WORK.
28TH FLOOR RECEPTION AREA NORTH
0115 001451
SEC. 13-160-269 REMOVED UNAPPROVED ELECTRO-MAGNETIC LOCKING DEVICE(S).
27TH FLOOR RECEPTION SOUTH
0116 001449
SEC. 13-160-269 PROVIDE APPROVED ELECTRO-MAGNETIC LOCKING DEVICES ON
EXIT DOOR(S). SUBMIT THREE (3) SETS OF PLANS TO THE BUREAU OF FIRE
PREVENTION AND OBTAIN APPROVAL BEFORE STARTING WORK.
27TH FLOOR RECEPTION SOUTH
<PAGE> 51
AREA C01 CITY OF CHICAGO ICN 3045231
------- BUREAU OF FIRE PREVENTION -----------
444 NO. DEARBORN ST.
CHICAGO, IL 60610
RAYMOND E. OROZCO [SEAL]
Fire Commissioner
JOHN T. ORMOND
Deputy Fire Commissioner
COMPASS MANAGEMENT DATE OF INSPECTION 11/01/96
T.J. BROOKOVER, MGR. --------------------
333 W. WACKER DATE OF NOTICE 11/18/96
ROOM 880 ------------------------
CHICAGO IL 60606 WIDTH 00720 LENGTH 00360 HEIGHT 036 04
------- ------- -------
BLDG NO 00000 TENANT NO.
--------- ------------
FLOOR 000 ROOM TYPE AN
----- --------- -----------
CONS'T R BADGE NO. 124
-------- ---------------
OCCUP CLASS E100 M001
---------------------------
You are hereby notified as owner, agent, lessee or occupant of the structure
located at 00333 W. WACKER
---------------------------------------------------------------------
0117 001451
SEC. 13-160-269 REMOVED UNAPPROVED ELECTRO-MAGNETIC LOCKING DEVICE(S).
26TH FLOOR SOUTH
0118 001449
SEC. 13-160-269 PROVIDE APPROVED ELECTRO-MAGNETIC LOCKING DEVICES ON
EXIT DOOR(S). SUBMIT THREE (3) SETS OF PLANS TO THE BUREAU OF FIRE
PREVENTION AND OBTAIN APPROVAL BEFORE STARTING WORK.
26TH FLOOR SOUTH
0119 001870
SEC. 15-4-870, 13-160-260, 2-36-280 KEEP ALL EXIT DOORS SO THAT THEY
CAN BE EASILY OPENED FROM THE INSIDE WITHOUT THE USE OF A KEY OR ANY
SPECIAL KNOWLEDGE.
26TH FLOOR
<PAGE> 52
AREA C01 CITY OF CHICAGO ICN 3045231
------- BUREAU OF FIRE PREVENTION -----------
444 NO. DEARBORN ST.
CHICAGO, IL 60610
RAYMOND E. OROZCO [SEAL]
Fire Commissioner
JOHN T. ORMOND
Deputy Fire Commissioner
COMPASS MANAGEMENT DATE OF INSPECTION 11/01/96
T.J. BROOKOVER, MGR. --------------------
333 W. WACKER DATE OF NOTICE 11/18/96
ROOM 880 ------------------------
CHICAGO IL 60606 WIDTH 00720 LENGTH 00360 HEIGHT 036 04
------- ------- -------
BLDG NO 00000 TENANT NO.
--------- ------------
FLOOR 000 ROOM TYPE AN
----- --------- -----------
CONS'T R BADGE NO. 124
-------- ---------------
OCCUP CLASS E100 M001
---------------------------
You are hereby notified as owner, agent, lessee or occupant of the structure
located at 00333 W. WACKER
---------------------------------------------------------------------
0120 001451
SEC. 13-160-269 REMOVED UNAPPROVED ELECTRO-MAGNETIC LOCKING DEVICE(S).
17TH FIDELITY CAPITAL
0121 001449
SEC. 13-160-269 PROVIDE APPROVED ELECTRO-MAGNETIC LOCKING DEVICES ON
EXIT DOOR(S). SUBMIT THREE (3) SETS OF PLANS TO THE BUREAU OF FIRE
PREVENTION AND OBTAIN APPROVAL BEFORE STARTING WORK.
17TH FIDELITY CAPITAL
0122 001451
SEC. 13-160-269 REMOVED UNAPPROVED ELECTRO-MAGNETIC LOCKING DEVICE(S).
16TH FLOOR GOVERNOR CAPITAL
0123 001449
SEC. 13-160-269 PROVIDE APPROVED ELECTRO-MAGNETIC LOCKING DEVICES ON
EXIT DOOR(S). SUBMIT THREE (3) SETS OF PLANS TO THE BUREAU OF FIRE
PREVENTION AND OBTAIN APPROVAL BEFORE STARTING WORK.
16TH FLOOR GOVERNOR CAPITAL
<PAGE> 53
AREA C01 CITY OF CHICAGO ICN 3045231
------- BUREAU OF FIRE PREVENTION -----------
444 NO. DEARBORN ST.
CHICAGO, IL 60610
RAYMOND E. OROZCO [SEAL]
Fire Commissioner
JOHN T. ORMOND
Deputy Fire Commissioner
COMPASS MANAGEMENT DATE OF INSPECTION 11/01/96
T.J. BROOKOVER, MGR. --------------------
333 W. WACKER DATE OF NOTICE 11/18/96
ROOM 880 ------------------------
CHICAGO IL 60606 WIDTH 00720 LENGTH 00360 HEIGHT 036 04
------- ------- -------
BLDG NO 00000 TENANT NO.
--------- ------------
FLOOR 000 ROOM TYPE AN
----- --------- -----------
CONS'T R BADGE NO. 124
-------- ---------------
OCCUP CLASS E100 M001
---------------------------
You are hereby notified as owner, agent, lessee or occupant of the structure
located at 00333 W. WACKER
---------------------------------------------------------------------
0124 001451
SEC. 13-160-269 REMOVED UNAPPROVED ELECTRO-MAGNETIC LOCKING DEVICE(S).
15TH FLOOR TEKRA PAK
0125 001449
SEC. 13-160-269 PROVIDE APPROVED ELECTRO-MAGNETIC LOCKING DEVICES ON
EXIT DOOR(S). SUBMIT THREE (3) SETS OF PLANS TO THE BUREAU OF FIRE
PREVENTION AND OBTAIN APPROVAL BEFORE STARTING WORK.
15TH FLOOR TEKRA PAK
0126 001870
SEC. 15-4-870, 13-160-260, 2-36-280 KEEP ALL EXIT DOORS SO THAT THEY
CAN BE EASILY OPENED FROM THE INSIDE WITHOUT THE USE OF A KEY OR ANY
SPECIAL KNOWLEDGE.
15TH FLOOR
<PAGE> 54
AREA C01 CITY OF CHICAGO ICN 3045231
------- BUREAU OF FIRE PREVENTION -----------
444 NO. DEARBORN ST.
CHICAGO, IL 60610
RAYMOND E. OROZCO [SEAL]
Fire Commissioner
JOHN T. ORMOND
Deputy Fire Commissioner
COMPASS MANAGEMENT DATE OF INSPECTION 11/01/96
T.J. BROOKOVER, MGR. --------------------
333 W. WACKER DATE OF NOTICE 11/18/96
ROOM 880 ------------------------
CHICAGO IL 60606 WIDTH 00720 LENGTH 00360 HEIGHT 036 04
------- ------- -------
BLDG NO 00000 TENANT NO.
--------- ------------
FLOOR 000 ROOM TYPE AN
----- --------- -----------
CONS'T R BADGE NO. 124
-------- ---------------
OCCUP CLASS E100 M001
---------------------------
You are hereby notified as owner, agent, lessee or occupant of the structure
located at 00333 W. WACKER
---------------------------------------------------------------------
0127 001451
SEC. 13-160-269 REMOVED UNAPPROVED ELECTRO-MAGNETIC LOCKING DEVICE(S).
14TH FLOOR CCA (SENSOR)
0128 001449
SEC. 13-160-269 PROVIDE APPROVED ELECTRO-MAGNETIC LOCKING DEVICES ON
EXIT DOOR(S). SUBMIT THREE (3) SETS OF PLANS TO THE BUREAU OF FIRE
PREVENTION AND OBTAIN APPROVAL BEFORE STARTING WORK.
14TH FLOOR CCA (SENSOR)
0129 001451
SEC. 13-160-269 REMOVED UNAPPROVED ELECTRO-MAGNETIC LOCKING DEVICE(S).
12TH FLOOR CASSIDY SHADE
0130 001449
SEC. 13-160-269 PROVIDE APPROVED ELECTRO-MAGNETIC LOCKING DEVICES ON
EXIT DOOR(S). SUBMIT THREE (3) SETS OF PLANS TO THE BUREAU OF FIRE
PREVENTION AND OBTAIN APPROVAL BEFORE STARTING WORK.
12TH FLOOR CASSIDY SHADE
<PAGE> 55
AREA C01 CITY OF CHICAGO ICN 3045231
------- BUREAU OF FIRE PREVENTION -----------
444 NO. DEARBORN ST.
CHICAGO, IL 60610
RAYMOND E. OROZCO [SEAL]
Fire Commissioner
JOHN T. ORMOND
Deputy Fire Commissioner
COMPASS MANAGEMENT DATE OF INSPECTION 11/01/96
T.J. BROOKOVER, MGR. --------------------
333 W. WACKER DATE OF NOTICE 11/18/96
ROOM 880 ------------------------
CHICAGO IL 60606 WIDTH 00720 LENGTH 00360 HEIGHT 036 04
------- ------- -------
BLDG NO 00000 TENANT NO.
--------- ------------
FLOOR 000 ROOM TYPE AN
----- --------- -----------
CONS'T R BADGE NO. 124
-------- ---------------
OCCUP CLASS E100 M001
---------------------------
You are hereby notified as owner, agent, lessee or occupant of the structure
located at 00333 W. WACKER
---------------------------------------------------------------------
0131 001870
SEC. 15-4-870, 13-160-260, 2-36-280 KEEP ALL EXIT DOORS SO THAT THEY
CAN BE EASILY OPENED FROM THE INSIDE WITHOUT THE USE OF A KEY OR ANY
SPECIAL KNOWLEDGE.
7TH FLOOR
Questions regarding this notice can be answered by calling 744-4716
****** Remember Smoke Detectors save lives ******
PLEASE NOTE: NO PARKING ON FIRE DEPARTMENT PROPERTY
<PAGE> 56
Exhibit 5.4(b)(1)
TENANT ESTOPPEL FORM
Overseas Partners Capital Corp.
c/o COMPASS Management and Leasing, Inc.
333 West Wacker Drive, Suite 880
Chicago, Illinois 60606
Re: Lease dated , 199 __ (the "Lease") between 333 Wacker Drive
Limited Partnership ("Landlord"), and ________________________("Tenant")
Gentlemen:
The undersigned Tenant understands that you or your assigns intend to
acquire that property located at 333 West Wacker Drive, Chicago, Illinois (the
"Property") from 333 Wacker Drive Limited Partnership. The undersigned Tenant
does hereby certify to you as follows:
A. A true and correct copy of the Lease along with all amendments,
modifications and supplements (other than parking agreements)
with respect thereto is attached hereto as Exhibit A.
B. The Lease is in full force and effect and has not been
modified, supplemented, or amended except as follows:
_______________________________________________________________
_______________________________________________________________
______________________________________________________________.
C. Tenant has not given Landlord written notice of any dispute
between Landlord and Tenant and no dispute which would serve as
a basis for any such notice exists. To the best of Tenant's
knowledge, Landlord is not in default under the Lease.
D. Tenant does not claim any offsets or credits against rents
payable under the Lease.
E. Tenant has not paid a security or other deposit with respect to
the Lease, except as follows: ________________________________.
<PAGE> 57
F. Tenant has fully paid rent on account of the month of
______________.
G. Tenant has not paid any rentals in advance except for the
current month of _____________, 199__.
H. The current monthly base rent payable under the Lease is
$____________.
I. The Lease shall remain in full force and effect through
_________________, and the Tenant has no options to renew or
extend the term of the Lease except as expressly provided in
the Lease.
J. All improvements, additions and alterations required to be made
by Landlord as of the date hereof with respect to the Premises
have been fully completed by Landlord and are acceptable to
Tenant except for _________________________.
Tenant makes the above statements for the benefit and protection of
Purchaser with the intent and understanding that they will be relied upon by
Purchaser and its successors and assigns.
Date: _____________________
TENANT: ________________________
By: ____________________
<PAGE> 58
Exhibit 5.4(b)(2)
SELLER ESTOPPEL FORM
Overseas Partners Capital Corp.
115 Perimeter Center Place
Suite 940
Atlanta, Georgia 30346
Re: Lease dated ___________, 199__ (the "Lease") between 333 Wacker Drive
Limited Partnership ("Seller"), and _____________________ ("Tenant"),
for those premises known as Suite ______ ("Premises") located at 333
West Wacker Drive, Chicago, Illinois (the "Property")
Gentlemen:
In connection with your acquisition of the Property pursuant to that
certain Purchase and Sale Agreement dated as of December __, 1996 between
Seller and Overseas Partners Capital Corp. (the "Agreement"), the undersigned
does hereby certify to you as follows:
A. A true and correct copy of the Lease along with all amendments,
modifications and supplements (other than parking agreements)
with respect thereto is attached hereto as Exhibit A.
B. The Lease is in full force and effect and has not been
modified, supplemented, or amended except as follows:
_______________________________________________________________
______________________________________________________________.
C. Seller has not received written notice of any dispute between
Seller and Tenant, and, to Seller's knowledge, no dispute which
would serve as a basis for any such notice exists.
D. To Seller's knowledge, Tenant does not claim any offsets or
credits against rents payable under the Lease. Seller is not
in material default under the Lease.
E. Tenant has not paid a security or other deposit with respect
to the Lease, except as follows: ____________________________.
F. Tenant has fully paid rent on account of the month of
_____________________.
G. Tenant has not paid any rentals in advance except for the
current month of ___________, 199__.
H. The current monthly base rent payable under the Lease is
$____________.
<PAGE> 59
I. All improvements, additions, and alterations required to be
made by Seller as of the date hereof with respect to the
Premises have been fully completed by Seller and, to Seller's
knowledge, are acceptable to Tenant except for ________________
____________________________________.
J. The Lease shall remain in full force and effect through
__________________, and the Tenant has no options to renew or
extend the term of the Lease except as expressly provided in
the Lease.
References to the "knowledge" of Seller shall have the meaning
specified in the Agreement.
The certifications set forth herein shall survive the closing of the
sale of the Property (the "Closing") and shall automatically expire and
terminate on the earlier to occur of (a) the first anniversary of the Closing
if no claim has theretofore been made hereunder, and (b) the receipt by you of
an estoppel certificate from Tenant confirming in all material respects the
matters set forth herein.
Dated: ____________________.
SELLER:
333 WACKER DRIVE LIMITED PARTNERSHIP, an
Illinois limited partnership
By: The Equitable Life Assurance Society of
the United States, its general partner
By: ______________________________
Name: ______________________________
Title: ______________________________
<PAGE> 1
EXHIBIT 10.bbb
ASSIGNMENT AND ASSUMPTION OF LEASES
THIS ASSIGNMENT AND ASSUMPTION OF LEASES (hereinafter referred to as
this "Agreement"), made and entered into as of the 31st day of December, 1996,
by and between 333 WACKER DRIVE LIMITED PARTNERSHIP, an Illinois limited
partnership (hereinafter referred to as "Seller"), and OVERSEAS PARTNERS (333),
INC., an Illinois corporation (hereinafter referred to as "Purchaser").
WITNESSETH:
WHEREAS, Seller is the owner of certain improved real property
(hereinafter referred to as the "Property") located in the City of Chicago,
County of Cook, State of Illinois, as more particularly described in Exhibit
"A" attached hereto and by this reference made a part hereof; and
WHEREAS, Seller has on even date conveyed the Property to Purchase, and
in connection therewith Seller wishes hereby to transfer and assign to
Purchaser all of Seller's right, title and interest in and to certain leases
related to the Property as more particularly described below.
NOW, THEREFORE, in consideration of the sum of Ten Dollars ($10.00) and
other good and valuable consideration, in hand paid by Purchaser to Seller, the
receipt and sufficiency of which are hereby acknowledged, Seller and Purchaser
here covenant and agree as follows:
1. ASSIGNMENT AND ASSUMPTION. Seller hereby transfers and assigns
to Purchaser all of Seller's right, title and interest in and to the lease,
rental and occupancy agreements (hereinafter referred to collectively as the
"Leases") described in Exhibit "B" attached hereto and by this reference made a
part hereof. Purchaser hereby assumes Seller's obligations and liabilities
arising on or after the date of this Agreement under the Leases. Further,
Purchaser hereby agrees to indemnify Seller and hold Seller harmless from any
claims, loss, damage, liability, cost or expense (including, without
limitation, reasonable attorney's fees) which Seller shall hereafter incur or
have asserted against in with regard to said obligations and liabilities
arising on or after the date of this Agreement assumed by Purchaser in
connection with the Leases, and with regard to acts of Purchaser or a failure
of Purchaser to act in connection with the Leases, which acts or failure to act
occur on or after the date of this Agreement.
2. SELLER'S INDEMNITY. Seller hereby agrees to indemnify
Purchaser and hold Purchaser harmless from any claims, loss, damage, liability,
cost or expense (including without limitation, reasonable attorney's fees)
which Purchaser shall hereafter incur or have asserted against it in connection
with obligations and liabilities under the Leases to the extent performance
or payment of such obligations and liabilities was due prior to the date of
this Agreement, and in connection with acts of Seller or a failure of Seller to
act with respect to the Leases, which acts or failure to act occurred prior to
the date of this Agreement. Notwithstanding the foregoing indemnity from
Seller to Purchaser, Purchaser hereby agrees to reimburse Seller for $7,384.10
in alterations and $4,189.44 in leasing commissions as and when expended by
Seller pursuant to a lease dated December 4, 1996 between Seller as Lessor and
First Portland Corporation as Lessee.
3. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon
and inure to the benefit of Purchaser and Seller and their respective heirs,
legal representatives, successors and assigns.
<PAGE> 2
IN WITNESS WHEREOF, Seller and Purchaser have executed this Agreement
as of the date first above written.
SELLER:
333 WACKER DRIVE LIMITED PARTNERSHIP,
an Illinois limited partnership
By: The Equitable Life Assurance
Society of the United States, general
partner
By: /s/ Michael A. Lunder
___________________________
Name: Michael A. Lunder
Title: Investment Officer
PURCHASER:
OVERSEAS PARTNERS (333), INC., an
Illinois corporation
By: /s/ Bruce M. Barone
___________________________
Name: Bruce M. Barone
Title: President
<PAGE> 3
EXHIBIT B
333 WACKER DRIVE
LEASE SUMMARY
<TABLE>
<CAPTION>
TENANT SUITE DOCUMENT DATE
- ------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Ameritech Health Connections, Inc. 2900 Lease 05/12/93
Arbor Office Suites 700 Lease 12/10/84
Arbor Office Suites 700 Agreement 11/29/89
Arbor Office Suites 700 Storage Agreement 07/30/96
Arbor Office Suites 700 Amendment to Lease 06/31/92
Bain & Company, Inc. 3000 First Amendment to Lease 10/16/94
Bain & Company, Inc. 3000 Lease 08/25/94
Bain & Company, Inc. 3000 Storage Agreement Not Dated
Bain & Company, Inc. 3000 Subordination, Non-Disturbance Agreement 03/08/95
Barack, Ferrazzano, Kirchbaum & Perlman 2700 Lease 12/01/87
Barack, Ferrazzano, Kirchbaum & Perlman 2700 First Amendment to Lease 02/05/92
Barack, Ferrazzano, Kirchbaum & Perlman 2700 Second Amendment to Lease 07/16/93
Barack, Ferrazzano, Kirchbaum & Perlman 2700 Third Amendment to Lease 11/30/94
Barack, Ferrazzano, Kirchbaum & Perlman 2700 Storage Agreement 03/08/95
Bard, Rao & Athenas Consulting Engineers 420 Lease 06/06/94
Bayerische Vareinsbank AG 680 Lease 05/13/87
Bjork Group 620 Letter Agreement 01/03/94
Bjork Group 620 Extension Agreement 01/26/86
Bjork Group 620 Extension Agreement 11/26/96
Bjork Group 620 Guaranty 01/31/91
Bjork Group 620 First Amendment 01/31/91
Bjork Group 620 Lease 02/25/86
Bokar Investment Management, Inc. 1410 Extension Agreement 02/26/96
Bokar Investment Management, Inc. 1410 Second Amendment to Lease 12/19/90
Bokar Investment Management, Inc. 1410 Amendment to Lease 05/04/87
Boker Investment Management, Inc. 1410 Lease 09/05/86
Bulgarian American Enterprise Fund 2080 First Amendment to Lease 08/22/95
Bulgarian American Enterprise Fund 2080 Lease 03/31/92
Burditt & Radzius, Chartered 2600 Lease 11/16/84
Burditt & Radzius, Chartered 2600 Amendment to Lease 07/28/87
Burditt & Radzius, Chartered 2600 Second Amendment to Lease 04/27/88
Burditt & Radzius, Chartered 2600 Third Amendment to Lease 02/28/91
Burditt & Radzius, Chartered 2600 Fourth Amendment to Lease 08/30/91
Carnow, Conibear & Associates, Ltd. 1400 Letter of Agreement 09/20/90
</TABLE>
<PAGE> 4
EXHIBIT "A"
LEGAL DESCRIPTION OF PROPERTY
PARCEL 1:
LOTS 7, 8 AND 9 IN ASSESSOR'S DIVISION OF LOTS 1, 2, 3, 7 AND 8 AND THE EAST
20 FEET OF LOT 6 IN BLOCK 21 IN ORIGINAL TOWN OF CHICAGO IN SECTION 9, TOWNSHIP
39 NORTH, RANGE 14, EAST OF THE THIRD PRINCIPAL MERIDIAN, IN COOK COUNTY,
ILLINOIS.
PARCEL 2:
THE EAST 1/4 OF LOT 6 AND THE WEST 1/4 OF LOT 7 IN BLOCK 21 IN ORIGINAL TOWN OF
CHICAGO, OTHERWISE KNOWN AS LOTS 10 AND 11 IN ASSESSOR'S DIVISION OF LOTS 1, 2,
3, 7 AND 8 AND THE EAST 20 FEET OF LOT 6, ALL IN SAID BLOCK 21 IN ORIGINAL TOWN
OF CHICAGO, IN THE CITY OF CHICAGO, IN COOK COUNTY, ILLINOIS.
PARCEL 3:
ALL OF LOT 5 AND THE WEST 1/2 OF LOT 6 AND THE WEST 1/2 OF THE EAST 1/2 OF LOT
6, ALL IN BLOCK 21 IN THE ORIGINAL TOWN OF CHICAGO, IN COOK COUNTY, ILLINOIS.
PARCEL 4:
THE EAST 1/4 OF LOT 1 AND THAT PART OF THE VACATED ALLEY LYING SOUTH AND
ADJOINING SAID LAND IN BLOCK 21 IN THE ORIGINAL TOWN OF CHICAGO IN SECTION 9,
TOWNSHIP 39 NORTH, RANGE 14, EAST OF THE THIRD PRINCIPAL MERIDIAN, IN COOK
COUNTY, ILLINOIS.
PARCEL 5:
THE WEST 1/2 OF THE EAST 1/2 OF LOT 1 AND THAT PART OF THE VACATED ALLEY LYING
SOUTH AND ADJOINING SAID LAND IN BLOCK 21 IN ORIGINAL TOWN OF CHICAGO IN THE
SOUTH FRACTIONAL 1/2 OF SECTION 9, TOWNSHIP 39 NORTH, RANGE 14, EAST OF THE
THIRD PRINCIPAL MERIDIAN, IN COOK COUNTY, ILLINOIS.
PARCEL 6:
LOTS 3, 5 AND 6 IN ASSESSOR'S DIVISION OF LOTS 1, 2, 3, 7 AND 8 AND THE EAST
20 FEET OF LOT 6 IN BLOCK 21 IN ORIGINAL TOWN OF CHICAGO IN SECTION 9, TOWNSHIP
39 NORTH, RANGE 14, EAST OF THE THIRD PRINCIPAL MERIDIAN, IN COOK COUNTY,
ILLINOIS.
PARCEL 7:
THE EAST 1/2 OF ORIGINAL LOT 8 IN BLOCK 21 IN THE ORIGINAL TOWN OF CHICAGO IN
THE SOUTH EAST 1/4 OF SECTION 9, TOWNSHIP 39 NORTH, RANGE 14, EAST OF THE THIRD
PRINCIPAL MERIDIAN, SOMETIMES ALSO DESCRIBED AS:
LOT 4 IN ASSESSOR'S DIVISION OF LOTS 1, 2, 3, 7, 8 AND THE EAST 20 FEET OF LOT
6 IN BLOCK 21 IN ORIGINAL TOWN OF CHICAGO, IN THE SOUTH EAST 1/4 OF SECTION 9,
TOWNSHIP 39 NORTH, RANGE 14, EAST OF THE THIRD PRINCIPAL MERIDIAN, IN COOK
COUNTY, ILLINOIS.
3
<PAGE> 5
333 WACKER DRIVE
LEASE SUMMARY
<TABLE>
<CAPTION>
TENANT SUITE DOCUMENT DATE
- -------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Carnow, Conibear & Associates, Ltd. 1400 Guaranty 06/12/85
Carnow, Conibear & Associates, Ltd. 1400 First Amendment to Lease 12/07/93
Carnow, Conibear & Associates, Ltd. 1400 Lease Not Dated
Cassiday, Schade & Gloor 1100 & 1200 Fourth Amendment to Lease 12/01/92
Cassiday, Schade & Gloor 1100 & 1200 Third Amendment to Lease 08/01/86
Cassiday, Schade & Gloor 1100 & 1200 Letter Agreement 10/20/94
Cassiday, Schade & Gloor 1100 & 1200 Amendment to Lease 10/31/85
Cassiday, Schade & Gloor 1100 & 1200 Addendum to Lease 05/01/85
Cassiday, Schade & Gloor 1100 & 1200 Lease 08/04/81
Cassiday, Schade & Gloor 1100 & 1200 Second Amendment to Lease 05/14/85
Cassiday, Schade & Gloor 1100 & 1200 Storage Agreement 10/16/95
Chicago Title & Trust Company 2020 Lease 03/30/94
Daniel S. Hefter & Associates 1650 First Amendment to Lease 04/11/90
Daniel S. Hefter & Associates 1650 Lease 3/89
Daniel S. Hefter & Associates 1650 Third Amendment to Lease 9/95
Daniel S. Hefter & Associates 1650 Assignment of Lease 02/07/92
Daniel S. Hefter & Associates 1650 Second Amendment to Lease 11/29/93
Digital Services Corporation Roof Lease 08/01/95
Digital Services Corporation Roof Assignment and Assumption 09/30/96
Digital Services Corporation Roof Landlord's Consent of Assignment 11/21/96
Facilities Capital Corporation 1750 Lease 08/10/93
Facilities Capital Corporation 1750 First Amendment to Lease 04/21/94
Facilities Capital Corporation 1750 Guaranty 08/10/93
Facilities Capital Corporation 1750 Settlement Agreement and Release 08/28/96
Fallon McEligott Incorporated 1430 Lease 9/94
Federal Home Loan Mortgage Corporation 210 & 2500 Amendment to Lease 09/30/86
Federal Home Loan Mortgage Corporation 210 & 2500 Second Amendment to Lease 09/29/89
Federal Home Loan Mortgage Corporation 210 & 2500 Fourth Amendment to Lease 12/31/92
Federal Home Loan Mortgage Corporation 210 & 2500 Third Amendment to Lease 01/27/92
Federal Home Loan Mortgage Corporation 210 & 2500 Fifth Amendment to Lease 01/31/95
Federal Home Loan Mortgage Corporation 210 & 2500 Lease 10/30/85
First Portland Corporation 240 Lease 12/04/96
Federal Home Loan Mortgage Corporation 210 & 2500 Addendum to Lease 02/08/86
Forensic Technologies International, Inc. 600 Lease 06/16/93
</TABLE>
<PAGE> 6
333 WACKER DRIVE
LEASE SUMMARY
<TABLE>
<CAPTION>
TENANT SUITE DOCUMENT DATE
- -------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Greyrock Capital Group, Inc. 1450 Lease 03/27/95
Greyrock Capital Group, Inc. 1850 First Amendment to Lease 11/10/96
Grosvenor Capital Management, L.P. 1600 Third Amendment to Lease 05/23/96
Grosvenor Capital Management, L.P. 1600 Lease 11/02/92
Grosvenor Capital Management, L.P. 1600 First Amendment to Lease 05/14/94
Grosvenor Capital Management, L.P. 1600 Second Amendment to Lease 05/23/95
Haggerty, Koenig & Hill 510 Lease 07/22/92
Harris, Rothenberg International 820 Lease Not Dated
Harris, Rothenberg International 810 First Amendment to Lease 02/27/95
Horwood, Marcus & Braun 2800 Lease 03/01/89
Horwood, Marcus & Braun 2800 Addendum to Lease 05/07/89
Horwood, Marcus & Braun 2800 First Lease Amendment 07/01/91
Horwood, Marcus & Braun 2800 Second Lease Amendment 04/30/92
James Layton International, Inc. 1050 Lease 04/09/93
John Nuveen & Company, Incorporated 31-36 Flrs. First Amendment to Lease 02/27/86
John Nuveen & Company, Incorporated 31-36 Flrs. Lease 08/10/84
John Nuveen & Company, Incorporated 31-36 Flrs. Second Amendment to Lease 01/29/88
John Nuveen & Company, Incorporated 31-36 Flrs. Fourth Amendment to Lease 02/28/92
John Nuveen & Company, Incorporated 31-36 Flrs. Fifth Amendment to Lease 01/01/93
John Nuveen & Company, Incorporated 31-36 Flrs. Third Amendment to Lease 10/30/89
Karad Drug Company, Inc. Lobby Lease 9/94
Karad Drug Company, Inc. Lobby First Amendment to Lease 08/31/95
Katz Randall & Weinberg 1700 & 1800 Agreement 11/10/95
Katz Randall & Weinberg 1700 & 1800 Lease 04/30/95
Kensington International 610 Lease 08/30/94
Kenwood Associates, Inc. 400 Lease 02/01/96
Linda's Magic Nails ML 100 Lease 01/02/96
MacKelvie & Associates 830 First Amendment to Lease 08/07/95
MacKelvie & Associates 830 Lease 09/94
National Equity Advisors, Inc. 2070 Lease 09/22/94
Nythan, Pfister, Barnbrick & Kinzie, P.C. 810 Lease 01/24/92
Pepi Corporation Lobby Lease Not Dated
Performance Analytics, Inc. 1010 Lease 05/04/94
Performance Analytics, Inc. 1010 First Amendment to Lease 07/31/96
</TABLE>
<PAGE> 7
333 WACKER DRIVE
LEASE SUMMARY
<TABLE>
<CAPTION>
TENANT SUITE DOCUMENT DATE
- -------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Physician Advisors to Disability Managers 470 Lease 10/28/95
Rose & Associates 1710 Letter of Agreement 11/10/95
Rose & Associates 1710 Lease 10/18/95
Sanchez & Daniels 500 First Amendment to Lease 10/31/95
Sanchez & Daniels 500 Lease 12/12/91
Sheldon F. Good Realty, Inc. 450 Lease 10/31/96
Sheldon F. Good Realty, Inc. 450 First Amendment to Lease 09/13/96
Sheldon F. Good Realty, Inc. 450 Storage Agreement 02/01/87
Skadden, Arps, Slate, Meagher & Flom 21-23 Flrs. Storage Agreement 02/17/94
Skadden, Arps, Slate, Meagher & Flom 21-23 Flrs. Lease 05/30/88
Spectra Marketing Systems, Inc. 900 Lease 05/96
Tetra Pak Inc. 1500 & 1520 First Amendment to Lease 03/14/94
Tetra Pak Inc. 1500 & 1520 Lease Not Dated
Tetra Pak Inc. 1500 & 1520 Addendum to Lease 05/91
Tilton & Lewis Associates, Inc. 200 First Amendment to Lease 09/30/93
Tilton & Lewis Associates, Inc. 200 Lease 03/10/85
AAR/RAILINC 2950 Third Amendment to Sublease 05/30/96
AAR/RAILINC 2950 Assumption and Consent 12/15/93
AAR/RAILINC 2950 Second Amendment to Sublease 02/23/94
AAR/RAILINC 2950 Lease 12/02/87
AAR/RAILINC 2950 First Amendment to Sublease 01/31/91
AAR/RAILINC 2950 Assumption and Consent 08/01/93
Urban Investment and Development 2100 Fourth Amendment to Lease 01/24/86
Urban Investment and Development 2100 Second Amendment to Lease 01/30/94
Urban Investment and Development 2100 Third Amendment to Lease 05/01/85
Urban Investment and Development 2100 Amendment to Lease 05/01/85
Urban Investment and Development 2100 Fifth Amendment to Lease 01/29/87
Urban Investment and Development 2100 Sixth Amendment to Lease 06/30/88
Urban Investment and Development 2100 Lease 05/01/83
VTEL Corporation 1060 Lease 05/96
</TABLE>
<PAGE> 1
EXHIBIT 10.ccc
ASSIGNMENT AND ASSUMPTION OF CONTRACTS
THIS ASSIGNMENT AND ASSUMPTION OF CONTRACTS (hereinafter referred to as
this "Agreement"), made and entered into as of the 31st day of December, 1996,
by and between 333 WACKER DRIVE LIMITED PARTNERSHIP, an Illinois limited
partnership (hereinafter referred to as "Seller"), and OVERSEAS PARTNERS (333),
INC., an Illinois corporation (hereinafter referred to as "Purchaser").
WITNESSETH:
WHEREAS, Seller is the owner of certain improved real property
(hereinafter referred to as the "Property") located in the City of Chicago,
County of Cook, State of Illinois, as more particularly described in Exhibit
"A" attached hereto and by this reference made a part hereof; and
WHEREAS, Seller has on even date conveyed the Property to Purchase, and
in connection therewith Seller wishes hereby to transfer and assign to
Purchaser all of Seller's right, title and interest in and to certain contracts
related to the Property as more particularly described below.
NOW, THEREFORE, in consideration of the sum of Ten Dollars ($10.00) and
other good and valuable consideration, in hand paid by Purchaser to Seller, the
receipt and sufficiency of which are hereby acknowledged, Seller and Purchaser
here covenant and agree as follows:
1. ASSIGNMENT AND ASSUMPTION. Seller hereby transfers and assigns
to Purchaser, if and to the extent assignable, all of Seller's right, title and
interest in and to the contracts (hereinafter referred to collectively as the
"SERVICE CONTRACTS") described in Exhibit "B" attached hereto and by this
reference made a part hereof. Purchaser hereby assumes Seller's obligations
and liabilities arising from and after the date of this Agreement under the
Service Contracts. Further, Purchaser hereby agrees to indemnify Seller and
hold Seller harmless from any claims, loss, damage, liability, cost or expense
(including, without limitation, reasonable attorney's fees) which Seller shall
hereafter incur or have asserted against in with regard to said obligations and
liabilities assumed by Purchaser in connection with the Service Contracts, and
with regard to acts of Purchaser or a failure of Purchaser to act in connection
with the Service Contracts, which acts or failure to act occur on or after the
date of this Agreement.
2. SELLER'S INDEMNITY. Seller hereby agrees to indemnify
Purchaser and hold Purchaser harmless from claims any loss, damage, liability,
cost or expense (including without limitation, reasonable attorney's fees)
which Purchaser shall hereafter incur or have asserted against it in
connection with obligations and liabilities under the Service Contracts to the
extent performance or payment of such obligations and liabilities was due
prior to the date of this Agreement, and in connection with acts of Seller or a
failure of Seller to act with respect to the Service Contracts, which acts of
Seller or a failure of Seller to act with respect to the Service Contracts,
which acts or failure to act occurred prior to the date of this Agreement.
3. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon
and inure to the benefit of Purchaser and Seller and their respective heirs,
legal representatives, successors and assigns.
<PAGE> 2
IN WITNESS WHEREOF, Seller and Purchaser have executed this Agreement
as of the date first above written.
SELLER:
333 WACKER DRIVE LIMITED PARTNERSHIP,
an Illinois limited partnership
By: The Equitable Life Assurance
Society of the United States, general
partner
By: /s/ Michael A. Lunder
---------------------------
Name: Michael A. Lunder
Title: Investment Officer
PURCHASER:
OVERSEAS PARTNERS (333), INC., an
Delaware corporation
By: /s/ Bruce M. Barone
---------------------------
Name: Bruce M. Barone
Title: President
2
<PAGE> 3
EXHIBIT "A"
LEGAL DESCRIPTION OF PROPERTY
PARCEL 1:
LOTS 7, 8 AND 9 IN ASSESSOR'S DIVISION OF LOTS 1, 2, 3, 7 AND 8 AND THE EAST 20
FEET OF LOT 6 IN BLOCK 21 IN ORIGINAL TOWN OF CHICAGO IN SECTION 9, TOWNSHIP 39
NORTH, RANGE 14, EAST OF THE THIRD PRINCIPAL MERIDIAN, IN COOK COUNTY,
ILLINOIS.
PARCEL 2:
THE EAST 1/4 OF LOT 6 AND THE WEST 1/4 OF LOT 7 IN BLOCK 21 IN ORIGINAL TOWN OF
CHICAGO, OTHERWISE KNOWN AS LOTS 10 AND 11 IN ASSESSOR'S DIVISION OF LOTS 1, 2,
3, 7 AND 8 AND THE EAST 20 FEET OF LOT 6, ALL IN SAID BLOCK 21 IN ORIGINAL TOWN
OF CHICAGO, IN THE CITY OF CHICAGO, IN COOK COUNTY, ILLINOIS.
PARCEL 3:
ALL OF LOT 5 AND THE WEST 1/2 OF LOT 6 AND THE WEST 1/2 OF THE EAST 1/2 OF LOT
6, ALL IN BLOCK 21 IN THE ORIGINAL TOWN OF CHICAGO, IN COOK COUNTY, ILLINOIS.
PARCEL 4:
THE EAST 1/4 OF LOT 1 AND THAT PART OF THE VACATED ALLEY LYING SOUTH AND
ADJOINING SAID LAND IN BLOCK 21 IN THE ORIGINAL TOWN OF CHICAGO IN SECTION 9,
TOWNSHIP 39 NORTH, RANGE 14, EAST OF THE THIRD PRINCIPAL MERIDIAN, IN COOK
COUNTY, ILLINOIS.
PARCEL 5:
THE WEST 1/2 OF THE EAST 1/2 OF LOT 1 AND THAT PART OF THE VACATED ALLEY LYING
SOUTH AND ADJOINING SAID LAND IN BLOCK 21 IN ORIGINAL TOWN OF CHICAGO IN THE
SOUTH FRANCTIONAL 1/2 OF SECTION 9, TOWNSHIP 39 NORTH, RANGE 14, EAST OF THE
THIRD PRINCIPAL MERIDIAN, IN COOK COUNTY, ILLINOIS.
PARCEL 6:
LOTS 3, 5 AND 6 IN ASSESSOR'S DIVISION OF LOTS 1, 2, 3, 7 AND 8 AND THE EAST 20
FEET OF LOT 6 IN BLOCK 21 IN ORIGINAL TOWN OF CHICAGO IN SECTION 9, TOWNSHIP 39
NORTH, RANGE 14, EAST OF THE THIRD PRINCIPAL MERIDIAN, IN COOK COUNTY, ILLINOIS.
PARCEL 7:
THE EAST 1/2 OF ORIGINAL LOT 8 IN BLOCK 21 IN THE ORIGINAL TOWN OF CHICAGO IN
THE SOUTH EAST 1/4 OF SECTION 9, TOWNSHIP 39 NORTH, RANGE 14, EAST OF THE THIRD
PRINCIPAL MERIDIAN, SOMETIMES ALSO DESCRIBED AS:
LOT 4 IN ASSESSOR'S DIVISION OF LOTS 1, 2, 3, 7, 8 AND THE EAST 20 FEET OF LOT
6 IN BLOCK 21 IN ORIGINAL TOWN OF CHICAGO, IN THE SOUTH EAST 1/4 OF SECTION 9,
TOWNSHIP 39 NORTH, RANGE 14, EAST OF THE THIRD PRINCIPAL MERIDIAN, IN COOK
COUNTY, ILLINOIS.
3
<PAGE> 4
EXHIBIT B
OPERATING AGREEMENT SCHEDULE
Janitorial Service Agreement with Admiral Maintenance Service, L.P. dated
September 1, 1995.
Security Office Contract with ABM Security Services dated October 1, 1996.
Elevator Maintenance Agreement with Otis Elevator dated January 1, 1996.
Exterior Landscaping and Plant Maintenance Service Agreement with Brickman
Landscape dated April 1, 1995.
Interior Landscaping and Plant Maintenance Service Agreement with Interior
Garden Services, Inc. dated April 1, 1995.
Maintenance, Mechanical and Electrical Operations Management Agreement with
Unicco Services Company dated August 15, 1996.
Fire Alarm System Test and Inspection with Advanced Fire dated September 1,
1994.
Parking Facility Management Agreement with General Parking, L.P. dated January
1, 1995.
Maintenance Service Agreement with Metal Maintenance, Inc. dated November 1,
1995.
Waste Removal Service Agreement with Browning-Ferris Industries dated June 1,
1993.
Energy Management Agreement with Landis & Gyr dated January 1, 1994.
Window Cleaning Agreement with BSS Service, Inc. dated October 1, 1994.
Window Equipment Maintenance Agreement with Skyline Maintenance dated March 1,
1993.
Revolving Door Maintenance Agreement with Midwest Door Services dated November
1, 1993.
Energycheck Services with Servidyne dated January 1, 1994.
Pest Control Service Agreement with C&C Pest Control dated August 1, 1996.
Copy Machine Maintenance Agreement with Minolta Copelco Leasing dated February
26, 1994.
<PAGE> 5
OPERATING AGREEMENT SCHEDULE
Computer Software Service/Maintenance Agreement with Sanwa Leasing dated
February 28, 1996.
Laptop Computer Service/Maintenance Agreement with Sanwa Leasing dated February
28, 1996.
Conference Room Furniture lease with Bankers Leasing dated November 1, 1996.
Communications Service Agreement with MFS/Realcom dated July 31, 1996.
Tenant Work Order Software Service/Maintenance Agreement with American Computer
Company dated November 18, 1996.
Security Card Access Service/Maintenance Agreement with Mirtech International
Security dated January 1, 1994.
Lease Commission Agreement between COMPASS Management & Leasing, Inc. and CB
Commercial Real Estate Group, Inc. dated December 6, 1996 for Nyhan, Pfister,
Bambrick & Kinzie.
Lease Commission Agreement between COMPASS Management & Leasing, Inc. and
Frederick J. Panici, broker, dated November 15, 1996 for The Bjork Group.
Lease Commission Agreement between COMPASS Management & Leasing, Inc. and CB
Commercial Real Estate Group, Inc. Dated December 6, 1996 for FTI Corporation.
Lease Commission Agreement between COMPASS Management & Leasing, Inc. and Frain
Camins & Swartchild dated November 29, 1996 for Kensington International.
Lease Commission Agreement between COMPASS Management & Leasing, Inc. and Frain
Camins & Swartchild dated October 16, 1996 for Cassiday, Schade & Gloor.
Service Agreement with Ballost and Lamp Recycling, Inc.
Maintenance Agreement/Mail Machine with Pitney Bowes.
Lease Agreement with Mister Leasing Corporation dated September, 1992.
<PAGE> 1
EXHIBIT 10.ddd
BILL OF SALE AND ASSIGNMENT
THIS BILL OF SALE AND ASSIGNMENT (hereinafter referred to as this
"AGREEMENT"), made and entered into as of the 31st day of December, 1996, by
333 WACKER DRIVE LIMITED PARTNERSHIP, an Illinois limited partnership
(hereinafter referred to as "Seller"), for the benefit of OVERSEAS PARTNERS
(333), INC., an Illinois corporation, its successors and assigns (hereinafter
referred to as "PURCHASER").
WITNESSETH:
WHEREAS, Seller is the owner of certain improved real property
(hereinafter referred to as the "PROPERTY") located in the City of Chicago,
County of Cook, State of Illinois, as more particularly described in Exhibit
"A" attached hereto and by this reference made a part hereof; and
WHEREAS, pursuant to that certain Purchase and Sale Agreement dated
December 24, 1996 between Seller and Overseas Partners Capital Corp., a
Delaware corporation (the "Purchase Agreement"), Seller has on even date
conveyed the Property to Purchaser, and in connection therewith Seller wishes
hereby to transfer and assign to Purchaser all of Seller's right, title and
interest in and to certain personal property related to the Property as more
particularly described below.
NOW THEREFORE, in consideration of the sum of Ten Dollar ($10.00) and
other good and valuable consideration, in hand paid by Purchaser to Seller, the
receipt and sufficiency of which are hereby acknowledged, Seller and Purchaser
hereby covenant and agree as follows:
1. PERSONALTY. Seller hereby grants, bargains, sells, conveys,
transfers and delivers to Purchaser, if and to the extent transferable, all of
Seller's right, title and interest in the Personal Property as defined in the
Purchase Agreement, including those items set forth in Exhibit "B" attached
hereto and by this reference made a part hereof.
2. INTANGIBLES. Seller hereby grants, bargains, sells, conveys,
transfers and delivers to Purchaser, if and to the extent transferable, any
right which Seller may have in the Intangibles, other than the Operating
Agreements, both as defined in the Purchase Agreement.
3. WAIVER OF WARRANTIES. Purchaser hereby waives any and all
warranties of merchantability or warranties of fitness for a particular purpose
with respect to the Personal Property being transferred by this Instrument.
4. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon
and insure to the benefit of Purchaser and Seller and their respective heirs,
legal representatives, successors and assigns.
<PAGE> 2
IN WITNESS WHEREOF, Seller has executed this Agreement as of the date
first above written.
333 WACKER DRIVE LIMITED PARTNERSHIP,
an Illinois limited partnership
By: The Equitable Life Assurance
Society of the United States, general
partner
By: /s/ Michael A. Lunder
---------------------------
Name: Michael A. Lunder
Title: Investment Officer
2
<PAGE> 3
EXHIBIT "A"
LEGAL DESCRIPTION OF PROPERTY
PARCEL 1:
LOTS 7, 8 AND 9 IN ASSESSOR'S DIVISION OF LOTS 1, 2, 3, 7 AND 8 AND THE EAST 20
FEET OF LOT 6 IN BLOCK 21 IN ORIGINAL TOWN OF CHICAGO IN SECTION 9, TOWNSHIP 39
NORTH, RANGE 14, EAST OF THE THIRD PRINCIPAL MERIDIAN, IN COOK COUNTY,
ILLINOIS.
PARCEL 2:
THE EAST 1/4 OF LOT 6 AND THE WEST 1/4 OF LOT 7 IN BLOCK 21 IN ORIGINAL TOWN OF
CHICAGO, OTHERWISE KNOWN AS LOTS 10 AND 11 IN ASSESSOR'S DIVISION OF LOTS 1, 2,
3, 7 AND 8 AND THE EAST 20 FEET OF LOT 6, ALL IN SAID BLOCK 21 IN ORIGINAL TOWN
OF CHICAGO, IN THE CITY OF CHICAGO, IN COOK COUNTY, ILLINOIS.
PARCEL 3:
ALL OF LOTS 5 AND THE WEST 1/2 OF LOT 6 AND THE WEST 1/2 OF THE EAST 1/2 OF LOT
6, ALL IN BLOCK 21 IN THE ORIGINAL TOWN OF CHICAGO, IN COOK COUNTY, ILLINOIS.
PARCEL 4:
THE EAST 1/4 OF LOT 1 AND THAT PART OF THE VACATED ALLEY LYING SOUTH AND
ADJOINING SAID LAND IN BLOCK 21 IN THE ORIGINAL TOWN OF CHICAGO IN SECTION 9,
TOWNSHIP 39 NORTH, RANGE 14, EAST OF THE THIRD PRINCIPAL MERIDIAN, IN COOK
COUNTY, ILLINOIS.
PARCEL 5:
THE WEST 1/2 OF THE EAST 1/2 OF LOT 1 AND THAT PART OF THE VACATED ALLEY LYING
SOUTH AND ADJOINING SAID LAND IN BLOCK 21 IN ORIGINAL TOWN OF CHICAGO IN THE
SOUTH FRACTIONAL 1/2 OF SECTION 9, TOWNSHIP 39 NORTH, RANGE 14, EAST OF THE
THIRD PRINCIPAL MERIDIAN, IN COOK COUNTY, ILLINOIS.
PARCEL 6:
LOTS 3, 5 AND 6 IN ASSESSOR'S DIVISION OF LOTS 1, 2, 3, 7 AND 8 AND THE EAST
20 FEET OF LOT 6 IN BLOCK 21 IN ORIGINAL TOWN OF CHICAGO IN SECTION 9, TOWNSHIP
39 NORTH, RANGE 14, EAST OF THE THIRD PRINCIPAL MERIDIAN, IN COOK COUNTY,
ILLINOIS.
PARCEL 7:
THE EAST 1/2 OF ORIGINAL LOT 8 IN BLOCK 21 IN THE ORIGINAL TOWN OF CHICAGO IN
THE SOUTH EAST 1/4 OF SECTION 9, TOWNSHIP 39 NORTH, RANGE 14, EAST OF THE THIRD
PRINCIPAL MERIDIAN, SOMETIMES ALSO DESCRIBED AS:
LOT 4 IN ASSESSOR'S DIVISION OF LOTS 1, 2, 3, 7, 8 AND THE EAST 20 FEET OF LOT
6 IN BLOCK 21 IN ORIGINAL TOWN OF CHICAGO, IN THE SOUTH EAST 1/4 OF SECTION 9,
TOWNSHIP 39 NORTH, RANGE 14, EAST OF THE THIRD PRINCIPAL MERIDIAN, IN COOK
COUNTY, ILLINOIS.
3
<PAGE> 4
EXHIBIT "B"
SCHEDULE OF PERSONAL PROPERTY
4
<PAGE> 5
Office of The Building
Personal Property List
Type of Furniture Number
Computer Stand 1
Tables:
Conference (Large) 1
Conference (Small) 1
Kitchen (Small) 1
Reception (Small) 2
Chairs:
Conference Room 10
Executive High Back 3
Kitchen 3
Reception 4
Secretarial 3
Visitors 11
Desks:
Executive 3
Secretarial 3
Credenzas 5
Ice Makers 1
Bookshelves
Lateral 4
Vertical 4
IBM Series II Typewriter 1
(Spiral) Binding Machine 1
MIRTECH Security System 1
Minolta Fax Machine 1
Pitney Bowes Postage Meter 1
Postage Scale 1
Microwave Ovens 1
Refrigerators 1
<PAGE> 6
ENGINEERING DEPARTMENT
Personal Property List
ITEM QUANTITY ITEM QUANTITY
Drill Presses 2 Screw Drivers 20
Bench Grinders 3 Desks 3
Horizontal Bandsaw 1 Credenza's 3
Bearing Press 1 File Cabinets 8
Wet/Dry Vacs 4 Chairs 10
Refrigerant Recover 3 Roll Around 1
Machines Tool Box 1
Hood Volumeter 1 Tap & Die Set 1
Compac PC w/Monitor 1 3/4" Drive Socket Set 1
Laser Jet Printer 1 1/2" Drive Socket Set 1
Walkie Talkies & 6 3/8" Drive Socket Set 1
Charger Electric Drill Sharpener 1
Toshiba Lap-Top 1 Electric Router 1
Wire Cart 1 Router Bit Kit 1
Self-Contained Breathing 2 Hole Saw Kit 1
Bench Vises 2 Glue Gun 1
Pipe Threading Machine 1 Combination Wrench 24
Tri-Pod Pipe Vise 1 Wood Chisel Set 1
Cordless Drill 3/8" 2 Electric Drills 4
Cordless Screwdriver 1 Electric Shears 2
Portable Band Saw 1 Megger 1
Table Saw 1 Multimeters 2
Jig Saw 1 Amphrobe 1
Circular Saw 1 Electronic Circuit Locator 1
Sawzall 1 Kilowatt Hour Meter 1
Hand Saw 2 Charging Sensor 1
Hack Saw 2 Electronic Scale 1
Hammers 5 Chart Recorders 2
Manometers 2 Maghelic 3
Fire Extinguisher's 100 Oxygen First Aid Kit 1
CO2 Manlift 35 Code Key Machine 1
Electric Manlift 1 Key Duplicative Machine 2
House Fans 1 Lock Pin Kit 1
Parts Cabinet 3 Crow Bar 3
Metal Files 8 Pinch Bar 2
Metal Cabinets 10 Engine Hoist 1
Electric Welders 6 Battery Charger 1
Scaffold Set 2 100 h.p. Electric Motor 1
Pipe Wrenches 1 75 h.p. Electric Motor 2
Oxy-Acet Torch Sets 12 40 h.p. Electric Motor 1
Gantry Set 2 30 h.p. Electric Motor 2
2 Ton Electric Hoist 1 25 h.p. Electric Motor 1
Chain Falls 1 15 h.p. Electric Motor 1
Vacuum Pumps 2 Garage Sweeper 1
Bottle Jack 2
Pallet Jack 1
First Aid Kit 1
<PAGE> 7
SECURITY DEPARTMENT
Personal Property List
<TABLE>
<CAPTION>
=========================================================
RADIO NUMBER TYPE QUANTITY
- ---------------------------------------------------------
<S> <C> <C>
02 P-100 01
- ---------------------------------------------------------
04 P-100 01
- ---------------------------------------------------------
06 P-100 01
- ---------------------------------------------------------
07 P-100 01
- ---------------------------------------------------------
08 P-100 01
- ---------------------------------------------------------
10 P-100 01
- ---------------------------------------------------------
11 P-100 01
- ---------------------------------------------------------
12 P-100 01
- ---------------------------------------------------------
13 P-100 01
- ---------------------------------------------------------
TOTAL: 09 Radios
- ---------------------------------------------------------
- ---------------------------------------------------------
RADIO NUMBER TYPE QUANTITY
- ---------------------------------------------------------
14 P-50 01
- ---------------------------------------------------------
05 P-50 01
- ---------------------------------------------------------
15 P-50 01
- ---------------------------------------------------------
01 SP-50 01
- ---------------------------------------------------------
02 SP-50 01
- ---------------------------------------------------------
03 SP-50 01
- ---------------------------------------------------------
17 SP-50 01
- ---------------------------------------------------------
09 SP-50 01
- ---------------------------------------------------------
16 SP-50 01
- ---------------------------------------------------------
- ---------------------------------------------------------
TOTAL: 09 Radios
- ---------------------------------------------------------
- ---------------------------------------------------------
TOTAL RADIOS: 18 Radios
- ---------------------------------------------------------
- ---------------------------------------------------------
06 Unit Charging Station 02
- ---------------------------------------------------------
P-50 Charges Single Unit 06
- ---------------------------------------------------------
P-100 Charges Single Unit 02
- ---------------------------------------------------------
- ---------------------------------------------------------
TOTAL CHARGERS: 10
- ---------------------------------------------------------
- ---------------------------------------------------------
- ---------------------------------------------------------
Revised: 11/26/96
- ---------------------------------------------------------
- ---------------------------------------------------------
</TABLE>
<PAGE> 1
EXHIBIT 10.eee
================================================================================
PURCHASE AND SALE AGREEMENT
COPLEY PLACE CENTRAL AREA AND
DARTMOUTH STREET GARAGE
SELLER:
JMB REALTY CORPORATION,
a Delaware corporation
CARLYLE REAL ESTATE LIMITED PARTNERSHIP - XIII,
an Illinois limited partnership
URBAN INVESTMENT AND DEVELOPMENT CO.,
an Illinois general partnership
BUYER:
OVERSEAS PARTNERS CAPITAL CORP.,
a Delaware corporation
- --------------------------------------------------------------------------------
Dated as of December 31, 1996
<PAGE> 2
PURCHASE AND SALE AGREEMENT
COPLEY PLACE CENTRAL AREA AND DARTMOUTH STREET GARAGE
THIS AGREEMENT ("AGREEMENT") is made as of December 31 , 1996 (the
"EFFECTIVE DATE"), by and among CARLYLE REAL ESTATE LIMITED PARTNERSHIP XIII, an
Illinois limited partnership ("CARLYLE"), URBAN INVESTMENT AND DEVELOPMENT CO.,
an Illinois general partnership ("Urban"), and JMB REALTY CORPORATION, a
Delaware corporation ("JMB", and collectively with Urban and Carlyle, "SELLER"),
and OVERSEAS PARTNERS CAPITAL CORP., a Delaware corporation ("BUYER").
RECITALS
WHEREAS, Carlyle, Urban and JMB are the sole partners of Copley Place
Associates, an Illinois general partnership ("CPA"); and
WHEREAS, CPA is the owner of 100% of the issued and outstanding common
stock (the "Nominee Stock") of Copley Place Associates Nominee Corporation, a
Delaware corporation ("Nominee"); and
WHEREAS, The Massachusetts Turnpike Authority ("MTA") is the owner of a
certain parcel of land in Boston, Massachusetts, containing approximately 9.5
acres upon which has been constructed a mixed-use development commonly known as
Copley Place (the "PROJECT"); and
WHEREAS, to facilitate the construction of the Project, the MTA entered
into a certain Amended and Restated Lease, dated as of January 31, 1980, with
Urban Investment and Development Co., a Delaware corporation ("UIDC") and
predecessor-in-interest to Urban (as the same has been amended, the "MASTER
LEASE"), whereby the MTA leased certain air rights consisting of the Project to
Urban; and
WHEREAS, UIDC entered into a sublease of a portion of the premises demised
by the Master Lease with UIDC of Massachusetts, Inc. ("UIDC-MA"), predecessor in
interest to CPA (such sublease, as the same has been amended, the "CENTRAL AREA
SUBLEASE"); and
WHEREAS, Nominee is the record owner, as nominee for CPA pursuant to a
certain Nominee Agreement dated as of July 18, 1989, between CPA and Nominee
(the "NOMINEE AGREEMENT"), of the subleasehold interest created by the Central
Area Sublease and the owner of the improvements constructed on the premises
demised by the Central Area Sublease (collectively, the "CENTRAL AREA"); and
- 1 -
<PAGE> 3
WHEREAS, CPA is the record owner of the leasehold interest created by that
certain Sublease Agreement for Garage Facilities, dated February 22, 1982,
between UIDC-MA and Marriott Urban Boston Venture (the "MARRIOTT GARAGE
SUBLEASE")
WHEREAS, Urban is the record owner of the leasehold interest created by
that certain Indenture of Lease, dated as of March 7, 1986 (the "DARTMOUTH
GARAGE LEASE") and is the owner of the improvements constructed on the premises
demised thereby commonly known as the Dartmouth Street Garage (such leasehold
interest and improvements being collectively referred to herein as the
"DARTMOUTH GARAGE"); and
WHEREAS, each of Carlyle, Urban and JMB desire to form Copley Place
Associates, LLC, a Delaware limited liability company (the "COMPANY"), the
membership interests in which shall be owned by Carlyle, Urban and JMB in the
same proportion as their respective interests in CPA, and in which JMB will be
the managing member pursuant to an agreement by and between Carlyle, Urban and
JMB; and
WHEREAS, immediately after the formation of the Company, Carlyle, Urban and
JMB desire to merge CPA into the Company by the execution of the certificate of
merger in the form of Exhibit "A" (the "CERTIFICATE OF MERGER") and filing of
the same with the Secretary of State of the State of Delaware, with the result
that the Company will be the owner of 100% of the Nominee Stock and all of CPA's
right, title and interest in and to the "Personal Property", "Property
Agreements" and "Intangible Property" (each as defined below) related to the
Central Area; and
WHEREAS, immediately after the execution and filing of the Certificate of
Merger, Urban wishes to contribute its interest in the Dartmouth Garage to the
Company in return for an increased membership interest in the Company; and
WHEREAS, immediately after the contribution by Urban of its interest in the
Dartmouth Garage to the Company, Buyer wishes to purchase the "Buyer Percentage"
(as defined below) of the membership interests in the Company (the "SUBJECT
INTERESTS"), subject to the Property Agreements in which Buyer shall cause the
Company to join for certain limited purposes as set forth therein; and
WHEREAS, the Subject Interests shall consist of the entire membership
interest of Carlyle in the Company (the "CARLYLE INTEREST"), the entire
membership interest of Urban in the Company after taking into account the effect
of the contribution by Urban to the Company of its interest in the Dartmouth
Garage (the "URBAN INTEREST") and that portion of the membership interest of JMB
in the Company which, when taken together with the Carlyle Interest and the
Urban Interest, will result in Buyer owning the Buyer Percentage of the
membership interests in the Company (the "SUBJECT JMB INTEREST"); and
- 2 -
<PAGE> 4
WHEREAS, in consideration of the "Purchase Price" (as defined below) and
the various covenants and promises of the parties hereto, each of Carlyle, Urban
and JMB desire to sell the Carlyle Interest, the Urban Interest, and the Subject
JMB Interest, respectively, to Buyer, subject to the Property Agreements, and
admit Buyer as an additional member in the Company; and
WHEREAS, immediately after the admission of Buyer as a member in the
Company, Carlyle and Urban desire to withdraw from the Company; and
WHEREAS, immediately after the withdrawal of Carlyle and Urban from the
Company, JMB and Buyer desire to enter into the written limited liability
company agreement for the Company in the form of Exhibit "B" (the "LLC
AGREEMENT"), which will amend and restate in their entirety all prior agreements
and understandings with respect to the Company, and which will reflect the
foregoing transactions (and Carlyle and Urban desire to enter into a joinder to
such LLC Agreement from the Company solely to confirm the assignment of the
Carlyle Interest and the Urban Interest to Buyer and their withdrawal from the
Company); and
WHEREAS, immediately after the execution of the LLC Agreement, Seller
shall cause the termination of the "Existing Management Agreements" (as defined
below); and
WHEREAS, immediately after the termination of the Existing Management
Agreements, the Company, as owner, and Overseas Management, Inc., a Delaware
corporation ("MANAGER"), as manager, shall execute the management agreement in
the form of Exhibit "C" (the "MANAGEMENT AGREEMENT"); and
WHEREAS, immediately after the execution of the Management Agreement,
Manager, as manager, and Urban Retail Properties Co., a Delaware corporation
("URPC"), as consultant, shall execute the consulting agreement in the form of
Exhibit "D" (the "CONSULTING AGREEMENT") in which buyer shall cause the Company
to join for certain limited purposes as set forth therein; and
WHEREAS, the parties intend that all of the foregoing transactions
(collectively, the "CLOSING TRANSACTIONS") shall occur in the order listed above
on the "Closing Date" (as defined below), subject to the terms and conditions of
this Agreement.
NOW, THEREFORE, in consideration of the respective promises contained in
this Agreement, the parties agree as follows:
1. Certain Definitions. The following terms shall have the meaning set
forth in this Agreement.
"BUYER PERCENTAGE" means Sixty Six and Two-Thirds Percent (66 2/3%).
- 3 -
<PAGE> 5
"CENTRAL AREA SUBLEASE DOCUMENTS" means the documents evidencing the
Central Area Sublease which are described in Exhibit "E.
"CLAIM" means any claim, loss, damage, liability, tax, fee, charge, fine,
interest, penalty, cost, suit, proceeding, judgment, order, lien, encumbrance,
obligation or expense whether administrative, judicial or otherwise (including,
but not limited to, court costs and reasonable attorneys', consultants',
accountants' and expert witness fees), whether or not suit is brought,
including, without limitation, any claim for damage to property or injury or
death of any persons.
"CLOSING DATE" means January 10, 1997, subject to extension as provided in
Paragraph 10C.
"DARTMOUTH GARAGE LEASE DOCUMENTS" means the documents evidencing the
Dartmouth Garage Lease which are described in Exhibit "F".
"DUE DILIGENCE MATERIALS" means the materials regarding the Property
previously delivered to Buyer and more particularly described in Exhibit "G".
"EXISTING LENDER" means Aetna Casualty and Surety Company, a Connecticut
corporation.
"EXISTING LOAN" means that certain loan encumbering the Central Area in the
original principal amount of $230,000,000, the lender's interest in which is
currently held by Existing Lender.
"EXISTING LOAN DOCUMENTS" means the documents evidencing and securing the
Existing Loan as described in Exhibit "H".
"EXISTING MANAGEMENT AGREEMENTS" means the following, collectively: (1)
that certain Management Agreement, dated as of September 1, 1983, by and between
CPA, as owner, and UIDC, as manager, with respect to the Central Area; and (2)
that certain management agreement by and between Urban, as owner, and UIDC, as
manager, with respect to the Dartmouth Garage. The manager's interest under the
Existing Management Agreements is currently held by URPC.
"MAJOR TENANTS" means the following tenants of the Property: (1) each
tenant under a Tenant Lease for the office portion of the Property, the demised
premises of which is equal to or more than 50,000 rentable square feet; and (2)
each tenant under a Tenant Lease for the retail portion of the Property, the
demised premises of which is equal to or more than 7,000 rentable square feet.
- 4 -
<PAGE> 6
"MARRIOTT GARAGE SUBLEASE DOCUMENTS" means the documents evidencing the
Marriott Garage Sublease described in Exhibit "I".
"MASTER LEASE DOCUMENTS" means the documents evidencing the Master Lease
which are described in Exhibit "J".
"PARKING AGREEMENTS" means the agreements respecting the leasing and
operation of the Dartmouth Garage and the garage facilities servicing the
Central Area by Standard Parking Corporation ("STANDARD PARKING"), together with
certain other parking license agreements as more particularly described in
Exhibit "K".
"PERMITTED EXCEPTIONS" means the following, as applicable to the Central
Area or the Dartmouth Garage: (1) the lien of any real estate taxes and
assessments not yet due and payable (subject to the prorations provided for in
this Agreement); (2) present and future zoning laws, ordinances, codes,
resolutions, orders and regulations of all municipal, county, state or federal
governments having jurisdiction over the Property and the use of Improvements
thereon; (3) all matters caused directly or indirectly by Buyer, its agents,
employees or contractors; (4) the printed exceptions which appear in the ALTA
standard form leasehold policy of title insurance issued by Title Company in the
State of Massachusetts; (5) all non-material and adverse (in Buyer's reasonable
opinion) matters indicated by the "Updated Surveys" (as defined below) but not
disclosed by the Cullinan Engineering co., Inc. Survey for Copley Place dated
December 23, 1996 and stamped "Preliminary", or the "As-built" Plan for the Tent
City Garage dated January 29, 1987; (6) the Property Agreements; and (7) the
title matters identified in Exhibit "L".
"PROPERTY" means all of the following: (1) the leasehold estates created by
each of the Central Area Sublease, the Marriott Garage Sublease and the
Dartmouth Garage Lease and the premises demised thereunder, and the improvements
structures and fixtures other than trade fixtures owned by tenants under the
Tenant Leases (the "IMPROVEMENTS") located on such premises (collectively, the
"PREMISES"); (2) all of the right, title and interest of CPA and Nominee in and
to the tangible personal property ("PERSONAL PROPERTY") located on and used
solely in connection with all or any portion of the Premises, including the
items of tangible personal property listed in Exhibit "M"; (3) all of the right,
title and interest of CPA and Nominee on the Closing Date in and to the Property
Agreements; and (4) all of the right, title and interest of CPA and Nominee on
the Closing Date in and to all other contracts, agreements, permits, licenses
and warranties held solely for use in connection with all or any portion of the
Premises, Improvements or Personal Property, and the rights, if any, to the name
"Copley Place" ("INTANGIBLE PROPERTY").
"PROPERTY AGREEMENTS" means the "Tenant Leases" (as defined below), the
Existing Loan Documents, the Master Lease Documents, the Central Area Sublease
Documents, the Dartmouth Garage Lease Documents, the Marriott Garage Sublease
Documents, the "Service
- 5 -
<PAGE> 7
Contracts" (as defined below), the Parking Agreements, the Nominee Agreement,
the Permitted Exceptions, the documents delivered on the Closing Date pursuant
to this Agreement, and the documents described in Exhibit "N", collectively.
"PURCHASE PRICE" means the excess of (1) Two Hundred Sixteen Million Six
Hundred Thousand and No/100 Dollars ($216,600,000); over (2) the product of (a)
the Buyer Percentage, and (b) the outstanding principal balance and accrued but
unpaid interest under the "Note" (as defined in Exhibit "H") as of 11:59 p.m. on
December 31, 1996, subject to Paragraph 6D(3) and Paragraph 6D(9). The Purchase
Price is based upon Buyer's Percentage of a total value for the Property equal
to Three Hundred Twenty Four Million Nine Hundred Thousand Dollars
($324,900,000) of which Three Hundred Twelve Million Dollars ($312,000,000) is
allocated to the Central Area (including the Marriott Garage Sublease) and
Twelve Million Nine Hundred Thousand Dollars ($12,900,000) is allocated to the
Dartmouth Garage.
"SERVICE CONTRACTS" means the service, maintenance and operating contracts
and equipment leases described in Exhibit "O".
"TENANT LEASES" means the tenant leases described in Exhibit "P".
"TITLE COMPANY" means Ticor Title Insurance Company.
"UPDATED SURVEYS" means those certain ALTA surveys (with accompanying
surveyor's reports) of the Central Area and Dartmouth Street Garage, prepared by
Cullinan Engineering and dated as of December, 1996.
2. Consummation of Transactions Contemplated by the Recitals. Subject to
the term and conditions of this Agreement (including the payment to Seller of
the Purchase Price in consideration of the sale of the Subject Interests), the
parties agree to consummate the Closing Transactions on the Closing Date in the
order indicated by the Recitals.
3. Payment and Allocation of Purchase Prices Deposits; Liquidated-Damages.
The Purchase Price shall be paid to Seller by Buyer as follows:
A. Deposit. Concurrently with the execution of this Agreement by
Seller and Buyer and as a condition to its effectiveness, Buyer shall deliver to
Title Company, at its address indicated in Paragraph 11D, a cashier's check or
wire transfer of immediately available federal funds, in the amount of Three
Million and No/100 Dollars ($3,000,000) (together with any interest actually
earned thereon while in the possession of Title Company, the "Deposit"). The
Deposit shall be held and applied by Title Company in accordance with Paragraph
3C and a deposit escrow agreement executed by the parties and Title Company as
of the date hereof (the "DEPOSIT ESCROW AGREEMENT"). At Buyer's option, the
Deposit may be in the form of a clean, unconditional and irrevocable letter of
credit in the amount of Three
- 6 -
<PAGE> 8
Million and No/100 Dollars ($3,000,000) in favor of Title Company, in a form
and from a major United States money center bank reasonably approved by Seller,
providing for a term of not less than 120 days from the date hereof (the
"LETTER OF CREDIT"); provided, however, that unless Title Company receives an
amendment to the Letter of Credit extending its term (or a replacement for the
Letter of Credit meeting the requirements of this Paragraph) at least ten (10)
business days prior to its then expiration date, Title Company shall draw upon
the Letter of Credit for the full amount of the Deposit and hold the proceeds
thereof pursuant to the terms of Paragraph 3C and the Escrow Agreement
(regardless of any contrary instruction by any party). If the Deposit is in
the form of the Letter of Credit and Buyer is entitled to a return of the
Deposit pursuant to Paragraph 3C, then the Title Company shall return the
Letter of Credit to Buyer; and if Seller is entitled to the Deposit pursuant to
Paragraph 3C, then Title Company shall draw upon the Letter of Credit in the
full amount of the Deposit in order to deliver the Deposit to Seller in cash.
B. Closing Payment. The balance of the Purchase Price, as adjusted by
the prorations and credits specified in this Agreement (including credit for the
Deposit, unless the same is in the form of the Letter of Credit), shall be paid
by wire transfer of immediately available federal funds on or before 10:00 a.m.
Eastern Time on the Closing Date. The amount to be paid under this subparagraph
B is referred to in this Agreement as the "CLOSING PAYMENT".
C. LIQUIDATED DAMAGES. IF THE CLOSING TRANSACTIONS DO NOT OCCUR DUE SOLELY TO
BUYER'S DEFAULT UNDER THIS AGREEMENT, IT WOULD BE IMPRACTICAL AND EXTREMELY
DIFFICULT TO ESTIMATE THE DAMAGES WHICH SELLER MAY SUFFER. THEREFORE, THE
PARTIES HAVE AGREED THAT A REASONABLE ESTIMATE OF THE TOTAL NET DETRIMENT THAT
SELLER WOULD SUFFER IN SUCH EVENT IS AND SHALL BE THE RIGHT TO RECEIVE THE
DEPOSIT FROM TITLE COMPANY AS LIQUIDATED DAMAGES, AS SELLER'S SOLE AND
EXCLUSIVE REMEDY UNDER THIS AGREEMENT (SUBJECT TO THOSE PROVISIONS OF THIS
AGREEMENT WHICH, BY THEIR EXPRESS TERMS, SURVIVE A TERMINATION OF THIS
AGREEMENT). SUCH LIQUIDATED DAMAGES ARE NOT INTENDED AS A FORFEITURE OR PENALTY
WITHIN THE MEANING OF APPLICABLE LAW. IF THE CLOSING TRANSACTIONS DO NOT OCCUR
FOR ANY REASON OTHER THAN BUYER'S DEFAULT UNDER THIS AGREEMENT, THEN THIS
AGREEMENT SHALL TERMINATE AND NEITHER PARTY SHALL HAVE ANY FURTHER RIGHTS OR
OBLIGATIONS TO EACH OTHER HEREUNDER, EXCEPT FOR (1) THE RIGHT OF BUYER TO THE
RETURN OF THE DEPOSIT, (2) THOSE PROVISIONS OF THIS AGREEMENT WHICH, BY THEIR
EXPRESS TERMS, SURVIVE A TERMINATION OF THIS AGREEMENT, AND (3) IF THE" CLOSING
TRANSACTIONS FAIL TO OCCUR SOLELY BECAUSE OF SELLER'S FAILURE TO CLOSE
CONSTITUTING A DEFAULT BY SELLER HEREUNDER, BUYER, AS ITS SOLE AND EXCLUSIVE
REMEDY MAY EITHER (A) SEEK THE SPECIFIC PERFORMANCE OF THIS AGREEMENT, OR (B)
BRING A CAUSE OF ACTION AGAINST SELLER FOR DAMAGES TO RECOVER BUYER'S
REASONABLE OUT-OF-POCKET EXPENDITURES DIRECTLY RELATED TO THIS AGREEMENT UP TO
A MAXIMUM AGGREGATE AMOUNT OF ONE MILLION DOLLARS ($1,000,000). IF THE
CLOSING TRANSACTIONS OCCUR IN ACCORDANCE WITH THE TERMS
- 7 -
<PAGE> 9
OF THIS AGREEMENT, TITLE COMPANY SHALL APPLY THE DEPOSIT AS A CREDIT TOWARD THE
PURCHASE PRICE (UNLESS THE DEPOSIT IS IN THE FORM OF THE LETTER OF CREDIT, IN
WHICH CASE THE LETTER OF CREDIT SHALL BE RETURNED TO BUYER). THIS PARAGRAPH 3C
SHALL SURVIVE THE TERMINATION OF THIS AGREEMENT.
/s/ BMB
------------------------- ----------------------------
BUYER'S INITIALS SELLER'S INITIALS
4. Title Contingency. A condition precedent to Buyer's obligation to
purchase the Property shall be the willingness of Title Company to issue the
following leasehold title Insurance policies (the "Title Policies") on the
Closing Date: (1) an ALTA leasehold policy in favor of Nominee, in the amount of
$311,400,000, which shall show title to the Central Area to be vested of record
in Nominee, subject to the Permitted Exceptions; (2) an ALTA leasehold policy in
favor of the Company, in the amount of $13,500,000, which shall show title to
the Dartmouth Garage to be vested of record in the Company, subject to the
Permitted Exceptions; and (3) an ALTA leasehold policy in favor of the Company,
in the amount of an allocated value from the limit described in clause (1) above
reasonably satisfactory to Buyer, which shall show title to the premises demised
by the Marriott Garage Sublease to be vested of record in the Company, subject
to the Permitted Exceptions.
5. Existing Lender Approval Contingency. The respective obligations of each of
the parties to consummate the Closing Transactions are conditioned upon
obtaining the written approval of Existing Lender to the Closing Transactions,
which shall be evidenced by the "EXISTING LENDER'S ESTOPPEL" (as defined
below). Buyer and Seller shall use good faith efforts to cooperate and obtain
the Existing Lender's Estoppel prior to the Closing Date. Seller shall keep
Buyer reasonably informed of the status of the Existing Lender's Estoppel. As
used herein, the "EXISTING LENDER'S ESTOPPEL" shall mean a statement to Seller,
Buyer, the Company and Nominee duly executed by Existing Lender and dated after
the date of this Agreement, containing the approval of existing Lender of the
Closing Transactions and certifying as to matters regarding the status of the
Existing Loan substantially in the form attached as Exhibit "Q" or otherwise
meeting the requirements within the Existing Loan Documents for such estoppel.
6. Closing. The closing ("Closing") of the Closing Transaction's shall be
consummated in the order specified in the Recitals on the Closing Date through a
closing conference held on the Closing Date at the offices of Buyer's counsel at
its address specified in Paragraph 11D or such other place agreed upon by the
parties (the "Closing Conference") with all deliveries required hereunder being
made at the Closing Conference.
A. Escrow. At the Closing Conference on the Closing Date, the parties
shall deliver or cause to be delivered to Title Company the following documents
and funds (all
- 8 -
<PAGE> 10
deliveries of a document to be made by four duly executed and delivered [and
where appropriate, notarized] originals or counterpart originals such
document):
(1) By Seller. Each of Carlyle, Urban and JMB shall deliver (in its
individual capacity or in its capacity as a partner in CPA or a member in the
Company, as the case may be and as more particularly indicated in the applicable
document, or in the case of clauses (k) and (1) below, cause to be delivered)
the following documents: (a) the agreement of merger in the form of Exhibit "R"
(the "AGREEMENT OF MERGER"); (b) the certificate of formation of the Company in
the form of Exhibit "S" ("CERTIFICATE OF FORMATION"); (c) a short form limited
liability company agreement for the Company (to be effective for the interim
period on the Closing Date commencing on the filing of the Certificate of
Formation and ending on the delivery of the LLC Agreement), in a form reasonably
agreed upon by Seller and Buyer providing, without limitation, that the managing
member (or member(s) possessing a majority interest) shall have the authority to
make all elections pursuant to Section 754 of the Internal Revenue Code of 1986,
as amended in order to effectuate the Closing Transactions and the intent of
this Agreement; (d) the bill of sale, assignment and assumption agreement with
respect to the confirmation of the assignment of CPA's interest in the Personal
Property and Property Agreements applicable to the Central Area to the Company
by operation of the Certificate of Merger in the form of Exhibit "T" (the
"CENTRAL AREA BILL OF SALE, ASSIGNMENT AND ASSUMPTION"); (e) the assignment and
assumption of the Dartmouth Garage Lease from Urban to the Company in the form
of Exhibit "U" (the "DARTMOUTH GARAGE LEASE ASSIGNMENT AND ASSUMPTION"); (f) the
bill of sale, assignment and assumption agreement with respect to the assignment
of Urban's interest in the Personal Property and Property Agreements applicable
to the Dartmouth Garage to the Company in the form of Exhibit "V" (the
"DARTMOUTH GARAGE BILL OF SALE, ASSIGNMENT AND ASSUMPTION"); (g) the assignment
and assumption of the membership interest in the Company to be conveyed by each
of Seller to Buyer form of Exhibit "W" (the "MEMBERSHIP ASSIGNMENT AND
ASSUMPTION"); (h) the LLC Agreement; (i) a certificate of Seller respecting the
"non-foreign" status of Seller in the form of Exhibit "X"; j) a certificate in
favor of Buyer and dated as of the Closing Date, representing that each of the
representations and warranties made by it under this Agreement is true and
correct in all material respects as of the Closing Date as if made on and as of
the Closing Date; (k) evidence of termination of the Existing Management
Agreements; (1) the Consulting Agreement executed by URPC; and (m) to the extent
not previously delivered to Buyer, the originals of the Property Agreements and
the Due Diligence Materials, together with the tenant correspondence files, to
the extent in the possession or control of Seller (such delivery to be
accomplished by leaving the same at the management office located at the
Property).
(2) By Buyer. Buyer shall deliver (in its individual capacity or in
its capacity as a member in the Company, as the case may be and as more
particularly indicated in the applicable document) the following funds and
documents: (a) the Closing Payment by wire transfer of immediately available
federal funds; (b) the LLC Agreement; (c) the Membership Assignments and
Assumptions; (d) the Management Agreement and Consulting Agreement (and shall
cause Manager to execute the same); and (e) a certificate in favor of Seller and
dated as of the Closing Date, representing that each of the representations and
warranties made by Buyer under this Agreement is true and correct in all
material respects as of the Closing Date as if made on and as of the Closing
Date.
- 9 -
<PAGE> 11
(3) By the Company. The parties shall cause the Company to deliver (a)
a duly executed counterpart of the Management Agreement; (b) a joinder to the
Consulting Agreement; and (c) an amendment to the Nominee Agreement in a form
reasonably satisfactory to Buyer and Seller, to the extent necessary to reflect
the occurrence of the Closing Transactions (the "NOMINEE AGREEMENT AMENDMENT").
(4) Other Deliveries. Each party shall deliver (and Seller shall cause
URPC to deliver and Buyer shall cause Manager to deliver) evidence reasonably
satisfactory to Title Company that it is duly formed, validly existing and in
good standing in the state of its formation, and that all necessary corporate,
company or partnership authorizations of the Closing Transactions have been
obtained, together with such other documents and instruments as may be
reasonably requested by Title Company in order to consummate the transaction
contemplated hereby and issue the Title Policies (including applicable transfer
affidavits; provided that the same do not materially decrease such party's
rights or materially increase such party's obligations hereunder). Each party
shall deliver to each of the other parties an opinion of counsel, dated as of
the Closing Date and in a form and from counsel reasonably satisfactory to each
of the other parties, regarding the valid existence and good standing of such
party, and the due authorization, execution and delivery by such party of this
Agreement and the documents to be executed by such party pursuant to this
Agreement.
B. Conditions to Closing: Delivery to Parties. The conditions to the
closing of such escrow shall be: (1) Title Company's receipt of funds and fully
executed originals of each of the documents described in Paragraph 6A and the
"Closing Statement" (as defined below); and (2) satisfaction of each of the
closing conditions in favor each party under Paragraph 10 (or written waiver
by such party, subject to the terms and conditions of Paragraph 10). Upon the
satisfaction of the above conditions, then Title Company shall be authorized to
perform the following tasks in the order indicated (and Title Company's
performance of any of the following tasks shall be deemed to constitute its
agreement to perform all of the following tasks; (a) file the Certificate of
Formation with the Delaware Secretary of State; (b) file the Certificate of
Merger with the Delaware Secretary of State; (c) record the Dartmouth Garage
Lease Assignment and Assumption in the land records of Suffolk County; (d)
deliver the Purchase Price to Seller (as adjusted by the credits and prorations
described herein as indicated on the Closing Statement); (e) deliver the funds
to third parties as indicated on the Closing Statement; and (f) deliver two
fully executed originals of each of the documents delivered pursuant to
Paragraph 6A above to each of Buyer and JMB on behalf of Seller. The parties
shall execute and deliver escrow instructions to Title Company in a form
reasonably approved by the parties in order to effectuate the intent of this
Agreement.
C. Closing Costs. Buyer shall pay (1) 50% of all costs and expenses of the
escrow arrangements; (2) all costs and expenses and premiums in connection with
the Title Policies, including the issuance of any extended coverage and any
endorsements required by Buyer, if any, to supplement or modify the Title
Policies; (3) 80% the cost of the Updated Surveys; and (4) the cost of any of
its examinations and inspections and audits of the Property, including the cost
of any of its appraisals, environmental, physical and financial audits). Seller
shall pay (a) all city, county or state transfer taxes payable in connection
with the Closing Transactions related to the Dartmouth Garage; (b) 50% of the
cost of the escrow arrangements;
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(c) 20% of the cost of the Updated Surveys; (d) the recording fees for the
Assignment of Garage Lease and any instrument in connection with the release of
any existing liens; (e) any fees charged by landlord under the Dartmouth Garage
Lease Documents in connection with its consent to the assignment of the
Dartmouth Garage Lease; and (f) the $500,000 transfer fee charged by Existing
Lender in connection with the Existing Lender's Estoppel, together with any
required reimbursement of Existing Lender's attorneys' fees. All other closing
costs not specifically allocated herein shall be paid by the parties as is
customary in the county in which the Property is located. Although the parties
believe that no city, county or state transfer taxes will be payable in
connection with the Closing Transactions related to the Central Area, the
parties have agreed that the risk that any governmental or taxing authority
will claim such taxes are due in connection with the Closing Transactions are
due shall be borne solely by Seller (and in the event that it is determined by
any governmental authority that such taxes are due, then subject to Seller's
right to contest the same, Seller shall be solely responsible for the payment
of such taxes). Buyer agrees to cooperate with Seller in connection with any
contest by Seller of the payment of such taxes (and to cause the Company to
cooperate with Seller), provided that such cooperation shall be at no expense
to Buyer or the Company. Nothing in this Agreement shall be deemed an
admission by any party, CPA or the Company that any city, county or state
transfer taxes will be payable in connection with the Closing Transactions
related to the Central Area. Seller and Buyer shall each pay their respective
(i) legal fees and expenses, (ii) share of prorations (as provided below), and
(iii) cost of all opinions, certificates, instruments, documents and papers
required to be delivered, or caused to be delivered, by it hereunder and the
cost of all its performances under this Agreement.
D. Prorations.
(1) Items to be Prorated. If the Closing Transactions shall occur on
the Closing Date, the following shall be prorated between CPA (with respect to
the Central Area) and Urban (with respect to the Dartmouth Garage), on one hand,
and the Company on the other hand as of 11:59 p.m. December 31, 1996, with all
income and expenses of the Property for December 31, 1996 and prior periods
being allocated to CPA, and all income and expenses of the Property for January
1, 1997 (the "PRORATION DATE") and subsequent periods being allocated to the
Company, subject to re-proration as provided in subparagraph (4) below, and
adjustments shall be made between Seller and Buyer based upon such prorations in
the manner provided for in this subparagraph (5) below:
(a) All real estate taxes and assessments on the Premises
payable in respect to the current fiscal year of the applicable taxing
authority in which the Proration Date occurs (the "CURRENT TAX YEAR"). Such
real estate taxes and assessments shall be prorated on a per diem basis based
upon the number of days in the Current Tax Year prior to the Proration Date
(which shall be allocated to and Urban to the extent applicable to the Central
Area and Dartmouth Garage, respectively) and the number of days in the Current
Tax Year on and after the Proration Date (which shall be allocated to the
Company). Upon the Closing Date and subject to the adjustment provided for
above, the Company shall be responsible for real estate taxes and assessments
on the Property payable in respect to the Current Tax Year and all periods
after the Current Tax Year (and CPA shall be responsible for all periods prior
to the Current Tax Year). In the event that any assessments on the Property
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are payable in installments, then the installment for the Current Tax Year
shall be prorated in the manner set forth above (with the Company assuming the
obligation to pay any installments due after the Proration Date).
(b) All rentals and other tenant charges and reimbursements
received in respect to the month in which the Proration Date occurs (the
"CURRENT MONTH"). Such rentals and other tenant charges and "Additional Rents"
(as defined below) for the Current Month which have been received as of the
Proration Date shall be prorated on a per them basis based upon the number of
days in the Current Month prior to the Proration Date (which shall be allocated
to CPA and Urban to the extent applicable to the Central Area and Dartmouth
Garage, respectively) and the number of days in the Current Month on and after
the Proration Date (which shall be allocated to the Company). All rentals and
other tenant charges and Additional Rents received by the Company from a tenant
after the Proration Date shall first be applied to the most recently accrued
obligation of such tenant. After application as set forth above, the Company
shall promptly remit to CPA and Urban (as applicable): (i) that portion of
rentals and other tenant charges and Additional Rents received after the
Proration Date which is attributable to periods prior to the Current Month; and
(ii) its share as calculated above of rentals and other tenant charges and
Additional Rents received after the Proration Date which are attributable to the
Current Month. Each of CPA and Urban shall have the right to institute an action
against any tenant for delinquent rentals and other tenant charges and
Additional Rents attributable to periods prior to the Current Month, and the
Company shall cooperate in such proceedings at no cost or expense to the
Company. Tenants of the Premises may be obligated to pay, as additional rent,
certain percentage rent, escalations in base rent and pass-throughs of
operating and similar expenses pursuant to the terms of the Tenant Leases
(collectively, "ADDITIONAL RENTS"). As to any Additional Rents that are based on
estimates and that are subject to adjustment or reconciliation pursuant to the
Tenant Leases after the Proration Date, CPA, Urban and the Company shall
"re-prorate" such Additional Rents (including any portions thereof that may be
required to be refunded to tenants) at the time that such estimates are actually
adjusted or reconciled pursuant to the terms of such Tenant Leases. Any amounts
that may be due the landlord as a result of such re-prorations shall be paid by
the Company to CPA or Urban (as applicable) promptly after the Company collects
such amounts from the tenants, and any amounts that may be due the tenants from
the Company as a result of such re-prorations shall be paid by CPA or Urban (as
applicable) to the Company promptly after written request therefor is delivered
by the Company (together with reasonably satisfactory evidence of the amount due
the tenants).
(c) All operating expenses (including all charges under any
Service Contracts, any utility charges and insurance premiums). As to each
service provider, utility or insurer, charges or premiums payable or paid to
such service provider, utility or insurer in respect to the billing period of
such service provider, utility or insurer in which the Proration Date occurs
(the "CURRENT BILLING PERIOD"), shall be prorated on a per diem basis based upon
the number of days in the Current Billing Period prior to the Proration Date
(which shall be allocated to CPA and Urban to the extent applicable to the
Central Area and Dartmouth Garage, respectively) and the number of days in the
Current Billing Period on and after the Proration Date (which shall be allocated
to the Company), and assuming that all charges are incurred uniformly during the
Current Billing Period. If actual bills for the Current Billing
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<PAGE> 14
Period are unavailable as of the Proration Date, then such proration shall be
made on an estimated basis based upon the most recently issued bills, subject
to readjustment upon receipt of actual bills.
(d) The cost of all compensation (including salary, bonus, and
payroll taxes and benefits including retirement benefits and insurance) for the
employees of the Property or URPC who are specifically listed in Exhibit "Y"
(the "EXISTING PROPERTY EMPLOYEES") or persons who succeed such employees. As
to each Existing Property Employee, CPA or Urban (allocated to the extent
applicable to the Central Area and Dartmouth Garage, respectively) shall be
responsible for such costs and Claims for the period ending on the Proration
Date (whether directly or through required reimbursements to URPC under the
Existing Management Agreements), and the Company shall be responsible for such
costs for the period commencing on the Proration Date (through reimbursement to
Manager under the Management Agreement). Seller shall be solely responsible for
the payment of all compensation (including salary, bonus and payroll taxes and
benefits (including retirement benefits and insurance) for all prior employees
of CPA or Nominee, other than the Existing Property Employees (whose
compensation and benefits are being prorated pursuant to this Paragraph).
(2) Security Deposits Prepaid Rents. Prepaid rentals and other tenant
charges and Additional Rents for periods after the Proration Date, and the
current balance of the security deposits (including any portion thereof which
may be designated as prepaid rent) under Tenant Leases (but only to the extent
that such deposits have not been otherwise applied to any obligations of any
tenants under the Tenant Leases and such application is not subject to dispute
by such tenant), together with any interest required to be earned thereon
pursuant to the requirements of any Tenant Lease, shall be credited to the
Company by CPA, and upon the closing of the transaction contemplated hereby. The
Company shall assume full responsibility for all security deposits to be
refunded to the tenants under the Tenant Leases. (to the extent the same are
required to be refunded by the terms of such Tenant Leases or applicable law,
whether or not the Company received credit for the same pursuant to this
subparagraph).
(3) Existing Loan Adjustments.
(a) CPA has been making certain cash flow payments under the
Existing Loan Documents pursuant to that certain "Security Agreement" (as
defined in Exhibit "H"), into the "Account" (as defined in the Security
Agreement). Seller shall calculate the amount required to be deposited into the
Account with respect to the period ending on the Proration Date pursuant to the
Security Agreement (and Buyer shall have the opportunity to review such
calculation, but Seller shall be responsible for any deficiency in the amount
required to be deposited in the Account for the period ending on the Proration
Date), Seller shall cause CPA to transfer such amount from the "Operating
Account" (as defined below) to the Account on the Closing Date, and Seller shall
make arrangements to transfer CPA's interest in the Account to the Company on
the Proration Date. If the maximum amount required to be held in the Account
pursuant to the Security Agreement of $10,000,000 would be exceeded as a result
of such transfer, then the excess shall be paid to Existing Lender for
application to the outstanding indebtedness under the Existing Loan Documents in
accordance with the terms
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<PAGE> 15
thereof (and such payment to Existing Lender shall be taken into account in the
calculation of the Purchase Price pursuant to this Agreement). In all events,
for purposes of the calculation of the Purchase Price pursuant to this
Agreement, the outstanding principal balance of the Existing Loan shall be
deemed to have been prepaid by the then current balance of the Account as of
the Proration Date (immediately following the transfer made into the Account
pursuant to this subparagraph as described above and immediately following the
payment by Seller of the $500,000 transfer fee to Existing Lender from the
Account, but immediately preceding the payment of the "Prepayment Deposit" [as
defined below] to Existing Lender). Seller shall be responsible for any
payments required to be made in connection with any subsequent adjustments to
or reconciliations of the amounts required to be deposited into the Account
under the Security Agreement for the period ending on the Proration Date.
The parties acknowledge that, in addition to the payment of a $500,000 transfer
fee to be paid by Seller to Existing Lender if the Closing Transactions shall
occur, Existing Lender is requiring as a condition to its delivery of the
Existing Lender's Estoppel the payment of the sum of $750,000, which shall be
paid to Existing Lender if the Closing Transactions shall occur on the Closing
Date from the balance of the Account (the "PREPAYMENT DEPOSIT"). The
Prepayment Deposit shall be held by Existing Lender and shall be applied as a
credit by Existing Lender toward any prepayment premium which may be payable by
the Company to Existing Lender under the Existing Loan Documents pursuant to
any sale or refinancing which may occur after the Closing Date; provided
however, that if the amount of the Prepayment Deposit exceeds such prepayment
premium (or if no prepayment premium is payable under the Existing Loan
Documents), Existing Lender shall be entitled to retain the excess Prepayment
Deposit and shall not be required to apply such excess Prepayment Deposit to
the indebtedness under the Existing Loan Documents, and Seller shall pay an
amount equal to Buyer's Percentage of such excess to Buyer on the earlier of
(i) the date such prepayment premium is paid by the Company; or (ii) the
maturity date under the Existing Loan Documents.
(b) Pursuant to the Security Agreement, CPA has established an
operating account in its name with Bank of America (the "OPERATING ACCOUNT").
Seller shall make arrangements to transfer CPA's interest in the Operating
Account to the Company on the Closing Date, it being understood that,
immediately after the transfers described in subparagraph (a) above, the balance
of the Operating Account shall be equal to the sum of (i) the $750,000 working
capital reserve contemplated by the Security Agreement (the "WORKING CAPITAL
RESERVE"), (ii) the tax and insurance impound balance required to be maintained
as of the Proration Date under the Existing Loan Documents (the "IMPOUND
BALANCE"); and (iii) the amount necessary to satisfy outstanding checks or other
items which have not yet posted to the Operating Account as indicated by an
account reconciliation to be made as of the Proration Date). In all events, for
purposes of the calculation of the Purchase Price pursuant to this Agreement,
the outstanding principal balance of the Existing Loan shall be deemed to have
been prepaid by the Impound Balance, but there shall be no adjustment to the
Purchase Price as a result of the Working Capital Reserve.
(c) As the calculation of the Purchase Price is based upon all
outstanding principal and accrued interest under the Note as of 11:59 p.m. on
December 31, 1996, the Company shall be responsible for all interest accruing
under the Note on and after the Proration Date.
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<PAGE> 16
(4) Calculation. The prorations and payments shall be made on the
basis of a written statement (the "CLOSING STATEMENT") submitted by Title
Company to the parties (based upon information to be provided by URPC) prior to
the Proration Date, which shall also provide for the payment of the closing
costs to be paid by the parties pursuant to this Agreement and which shall be
approved and executed by the parties (such approval not to be unreasonably
withheld if such statement has been prepared in accordance with this Agreement).
In the event any prorations or apportionments made under this subparagraph D
shall prove to be incorrect for any reason, then any party shall be entitled to
an adjustment to correct the same. Any item which cannot be finally prorated
because of the unavailability of information shall be tentatively prorated on
the basis of the best data then available and re-prorated when the information
is available.
(5) Adjustments. All amounts payable by CPA or credited to the Company as a
result of the adjustments provided for in this Paragraph 6D for the Central
Area shall be paid by Carlyle, Urban and JMB (in accordance with their
respective interests in CPA, or on such other basis as they may agree) to Buyer
and JMB (in accordance with their respective interests in the Company under the
LLC Agreement). All amounts payable by the Company or credited to CPA as a
result of the adjustments provided for in this Paragraph 6D for the Central
Area shall be paid by Buyer and JMB (in accordance with their respective
interests in the Company under the LLC Agreement) to Carlyle, Urban and JMB (in
accordance with their respective interests in CPA, or on such other basis as
they may agree). All amounts payable by Urban or credited to the Company as a
result of the adjustments provided for in this Paragraph 6D for the Dartmouth
Garage shall be paid by Urban to Buyer and JMB (in accordance with their
respective interests in the Company under the LLC Agreement). All amounts
payable by the Company or credited to Urban as a result of the adjustments
provided for in this Paragraph 6D for the Dartmouth Garage shall be paid by
Buyer and JMB (in accordance with their respective interests in the Company
under the LLC Agreement) to Urban.
(6) Certain Leasing Costs. On the Closing Date, the Company shall be
responsible for the payment of the leasing costs required to be paid in
connection with the renewals and new Tenant Leases and modifications to existing
Tenant Leases which are more particularly identified in Exhibit "Z", which is a
description of such transactions which have been entered into with the approval
of Buyer after October 31, 1996 (such leasing costs, together with leasing costs
in connection with the renewals or new Tenant Leases or modifications to
existing Tenant Leases which are entered into after the date hereof and prior to
the Closing Date with the consent of Buyer as provided herein shall be referred
to herein collectively as the "ASSUMED LEASING COSTS"), without adjustment to
the Purchase Price, and the Company shall reimburse Seller for any Assumed
Leasing Costs paid by Seller prior to the Closing. Seller shall be solely
responsible for any other unpaid leasing costs with respect to the Tenant Leases
which are not Assumed Leasing Costs.
(7) Items Not Prorated. The parties agree that, other than the
Existing Property Employees none of the individuals performing services at or
related to the Property are employees of CPA or Nominee, nor shall any of them
become the employee of the Company (such individuals being employees of URPC or
of independent contractors
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<PAGE> 17
performing services at the Property pursuant to the Property Agreements).
Accordingly, there will be no prorations for payroll (including salaries,
accrued vacation or sick time, pensions or other employee benefits), for any
individuals performing services at the Property other than the Existing
Property Employees except to the extent that reimbursements of such items are
payable to URPC pursuant to the Existing Management Agreement and the
Consulting Agreement.
(8) Company Capital Reserve. A reserve in the amount of $900,000 shall
be established by the Company in the Operating Account on the Closing Date in
accordance with this subparagraph (the "COMPANY CAPITAL RESERVE"). The Company
Capital Reserve shall be funded on the Closing Date in the following manner: (a)
Buyer shall receive a credit against the Purchase Price equal to $600,000, which
shall be immediately contributed by Buyer to the Company; and (b) JMB shall
contribute an amount equal to $300,000 to the Company. The Company Reserve shall
be property of the Company and shall be available to be spent by the Company for
capital improvements and leasing costs associated with the Property in
accordance with the LLC Agreement.
(9) Interest Adjustment to Purchase Price. The parties acknowledge
that they have chosen 11:59 p.m. on December 31, 1996 as the time of the
calculation of the Purchase Price and the transfer of the economic incidents of
ownership of the Property for prorations purposes, with all income and expenses
of the Property for December 31, 1996 and prior periods being allocated to CPA,
and all income and expenses of the Property for January 1, 1997 and subsequent
periods being allocated to the Company, and that the Closing Statement shall
reflect the Purchase Price and such prorations on such basis. The parties also
recognize that the Purchase Price payable to Seller, after adjustment for the
prorations, credits, expenses and other amounts payable by Seller pursuant to
this Agreement as reflected on the Closing Statement (the "NET PROCEEDS"), shall
not actually be received by Seller until the Closing Date. Accordingly, the
Closing Statement shall reflect that Seller shall receive an additional payment
from Buyer on the Closing Date equal to the amount of interest which would have
accrued on the Net Proceeds from the Proration Date until the Closing Date at
the "Applicable Rate" (as defined below), but such payment shall not be taken
into account in the calculation of Net Proceeds. As used herein, the "Applicable
Rate" shall be equal to the sum of (a) One Percent (1 %) per annum; and (b) the
quoted rate of interest on United States Treasury obligations having a maturity
date closest to the date which is one (1) year after the Proration Date (as
indicated in the edition of the Wall Street Journal published on the Proration
Date).
(10) Survival. This Paragraph 6D shall survive the Closing Date.
Notwithstanding the foregoing, Buyer and Seller shall ensure that any
re-proration required pursuant to subparagraph (4) above shall be made within 90
days after the Closing Date (except with respect to taxes and assessments and
Additional Rents, in which case such re-proration shall be made within 60 days
after the information necessary to perform such re-proration is available).
7. Destruction/Condemnation of Property. In the event that all or any
portion of the Premises is damaged or destroyed by any casualty or is lost by a
taking or condemnation
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<PAGE> 18
under the provisions of eminent domain law after the Effective Date but prior
to the Closing Date, Seller, CPA or Nominee shall have no obligation to repair
or replace any damage or destruction caused by the foregoing. CPA shall, upon
consummation of the transaction herein provided, assign to the Company all
claims of CPA under or pursuant to any casualty insurance coverage, or under
the provisions of eminent domain law, as applicable, and all proceeds from any
such casualty insurance or condemnation awards received by CPA on account of
any such casualty or condemnation, as the case may be (to the extent the same
have not been applied prior to the Closing Date to repair the resulting
damage), and there shall be no reduction of the Purchase Price (except that in
connection with a casualty covered by insurance, the Company shall be credited
with the lesser of the remaining cost to repair the damage or destruction
caused by such casualty or the amount of the deductible under CPA's casualty
insurance policy [except to the extent such deductible was expended to repair
the resulting damage]). In the event the cost of repair or restoration of the
damage to such improvements on account of such casualty shall exceed an amount
equal to $500,000, take longer than one hundred and twenty (120) days to
repair, or in the event of any condemnation, then Buyer may, at its option,
terminate this Agreement by written notice to Seller, given on or before the
Closing Date, in which case the parties shall have no further obligation or
liability hereunder (except for those provisions which, by their terms,
expressly survive such termination), and the Deposit shall be returned to
Buyer.
8. Representations and Warranties Certain Covenants. The parties hereby
make the following representations and warranties, which shall survive for the
period indicated in Paragraph 8G:
A. Representations and Warranties of Seller. Seller hereby represents
and warrants the following to Buyer:
(1) Due Organization. On the Closing Date, the Company will be a
limited liability company, duly organized, validly existing and in good standing
under the laws of Delaware and duly qualified to do business in the
Commonwealth of Massachusetts. The sole members of the Company immediately prior
to the transfer to Buyer of the Subject Interests are Carlyle, Urban and JMB.
(2) Tile. Each of CPA and Urban has not assigned or transferred any
of its rights under any of the Property Agreements except (1) CPA may have
assigned certain of the Property Agreements to Nominee; (2) CPA may have
collaterally assigned certain Property Agreements pursuant to the Existing Loan
Documents; and (3) as contemplated by this Agreement. On the Closing Date, the
Company will own all of the Personal Property described in Exhibit "M", free and
clear of all liens, encumbrances, claims, rights, judgments, leases, easements,
restrictions and other matters affecting title, except the Property Agreements,
and all of such Personal Property is located at the Premises, except that
certain of the equipment described on Exhibit "M" is leased from third parties
as described therein.
(3) Obligations and Liabilities. On the Closing Date, the Company
will have full power and authority to own the Property (either directly or
through its interest in Nominee). To the actual knowledge of Seller, on the
Closing Date the Company and Nominee
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<PAGE> 19
will have no material obligations or material liabilities of any kind or nature
whatsoever, accrued, absolute, contingent or otherwise (other than any of the
same covered by valid liability insurance with customary deductibles in force),
except for those expressly described in the Due Diligence Materials or in this
Agreement and its Exhibits, those incurred in the ordinary course of ownership
of the Property, those created by the Property Agreements, and those created
pursuant to this Agreement.
(4) Compliance. Seller has no actual knowledge of and has not
received written notice of any existing material violation of any applicable
federal, state, or local laws, regulation, ordinances or directives relating to
the Property, including, without limitation those relating to:
(a) the construction, development and use of the Property such
as subdivision, land development and zoning;
(b) building, fire and safety codes;
(c) the operation of elevators, escalators, boilers and other
machinery and equipment; and
(d) they physical and environmental condition of the Property,
including, without limitation, emissions into the air and discharges, into any
body of water or into any sewage system.
(5) Permits. To the actual knowledge of Seller, all business
licenses and permits and, without limitation, all other notices, licenses,
permits, certificates, authorizations and approvals required in connection with
the use, occupancy or operation of the Property have been obtained as of the
date hereof and true and complete list of the same is attached as Exhibit "AA".
To Seller's actual knowledge, the same are presently in full force and effect
and in good standing.
(6) No Proceedings. Seller has no actual knowledge of and has not
received or been served with any notice of any pending or threatened action,
suit or proceeding against CPA, Nominee, the Company or the Property before any
court or governmental agency or body, except as disclosed on Exhibit "BB".
Seller has no actual knowledge of and has not received or been served with any
notice of any pending or threatened action, suit or proceeding against Urban,
Carlyle or JMB which would have a material and adverse effect upon its ability
to consummate the transactions contemplated by this Agreement. In no event will
the Company's obligations with respect to the replacement or retrofitting of the
lighting fixtures on the portion of the Massachusetts Turnpike tunnel and ramps
as more particularly described in the correspondence attached to Exhibit "BB"
under Copley Place exceed $2,640,000. Seller's obligations with respect to this
representation and warranty shall survive the Closing.
(7) Eminent Domain. There are no pending or, to the actual knowledge
of Seller, threatened, condemnation, eminent domain or similar proceedings
relating
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<PAGE> 20
to the Property or any portion thereof or any interest (whether legal,
beneficial or otherwise) or estate therein.
(8) Zoning Taxes. There are no pending or, to the actual knowledge of
Seller, threatened, zoning changes or variances with respect to the Property or
any part thereof, nor, to the actual knowledge of Seller, has there been any
request or application for a zoning change or variance. Seller has no actual
knowledge of any special assessments which constitute a lien or encumbrance
against the Premises or of any such special assessments threatened, whether or
not relative to or resulting from work performed or materials provided with
respect to the Premises. A true, correct and complete copy of the most recent
tax bill for the Property was delivered to Buyer within the Due Diligence
Materials.
(9) Property Agreements. Seller has delivered to Buyer true, correct
and complete copies of all Property Agreements. Those Property Agreements
executed by Nominee, CPA, Urban, UIDC, UIDC-MA, URPC or Seller (as the case may
be), are in full force and effect and unmodified and are free of material
default. Other than the Property Agreements, there are no material contracts or
agreements relating to the Property to which Nominee, CPA, Urban, UIDC, UIDC-MA,
URPC or Seller (as the case may be) is a party.
(10) Tenant Leases. The Tenant Leases described in Exhibit "P"
constitute all outstanding material leases or agreements entered into by
Nominee, CPA, Urban, UIDC, UIDC-MA, URPC or Seller (as the case may be) pursuant
to which any person occupies, or has the right to occupy, space in the Property,
including (without limitation) all amendments and modifications thereto and
assignments and guaranties thereof. Except as shown on Exhibit "P": (i) true,
correct and complete copies of the Tenant Leases have been delivered to Buyer,
(ii) to the actual knowledge of Seller, there are no material defaults,
disputes, claims or rights of setoff under any of the Tenant Leases, and the
Tenant Leases are in good standing and full force and effect, unmodified and
unwaived, (iii) to the actual knowledge of Seller, except as provided in the
Tenant Leases or on Exhibit "P", there are no delinquencies in the payment of
rent under any of the Tenant Leases, no security deposits nor any rights to
refunds or rent-free periods under the Tenant Leases, (iv) to the actual
knowledge of Seller, except as provided in the Tenant Leases, the landlord under
the Tenant Leases has no obligations to make improvements, alterations, repairs
or decorations, or to make any payments for any thereof, which have not been
satisfied in full (except as disclosed in Exhibit "Z"), (v) except as set forth
in the Tenant Leases, no person has any options or rights to lease space in the
Property or extend any Tenant Leases or rights of first refusal for space in the
Property granted by Nominee, CPA, Urban, UIDC, UIDC-MA, URPC or Seller (as the
case may be), and (vi) no person has any contract, agreement, option or right of
first refusal to purchase the Property or any portion thereof or interest
(whether legal, beneficial or otherwise) or estate therein granted by Nominee,
CPA, Urban, UIDC, UIDC-MA, URPC or Seller (as the case may be), except for the
rights of Buyer under this Agreement.
(11) Central Area Sublease Documents. The Central Area Sublease
Documents have not been amended, modified, terminated or assigned. To the actual
knowledge of Seller, there are no material defaults, disputes, claims or rights
of set-off under the Central Area Sublease Documents, and there are no
delinquencies in the payment of rent
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under the Central Area Sublease Documents. To the actual knowledge of Seller,
the Central Area Sublease Documents are in full force and effect.
(12) Master Lease Documents. The Master Lease Documents have not been
amended, modified, terminated or assigned. To the actual knowledge of Seller,
there are no material defaults, disputes, claims or rights of set-off under the
Master Lease Documents, and there are no delinquencies in the payment of rent
under the Master Lease Documents. To the actual knowledge of Seller, the Master
Lease Documents are in full force and effect.
(13) Dartmouth Garage Lease Documents. The Dartmouth Garage Lease
Documents have not been amended, modified, terminated or assigned. To the actual
knowledge of Seller, there are no material defaults, disputes, claims or rights
of set-off under the Dartmouth Garage Lease Documents, and there are no
delinquencies in the payment of rent under the Dartmouth Garage Lease Documents.
To the actual knowledge of Seller, the Dartmouth Garage Lease Documents are in
full force and effect.
(14) Marriott Garage Sublease Documents. The Marriott Garage Sublease
Documents have not been amended, modified, terminated or assigned. To the actual
knowledge of Seller, there are no material defaults, disputes, claims or rights
of set-off under the Marriott Garage Sublease Documents, and there are no
delinquencies in the payment of rent under the Marriott Garage Sublease
Documents. To the actual knowledge of Seller, the Marriott Garage Sublease
Documents are in full force and effect.
(15) Labor Contracts. There are no labor contracts or employee
agreements (whether written or oral) to which CPA, Nominee, the Company or
Seller is a party relating to the Property, other than in connection with the
Existing Property Employees. Other than the Existing Property Employees, each of
CPA, Nominee and the Company currently has no employees, all individuals
performing services at or related to the Property other than the Existing
Property Employees being employees of URPC or independent contractors pursuant
to the Property Agreements.
(16) Financial Information. Attached hereto as Exhibit "CC" and made
a part hereof is certain financial information for the Property previously
supplied to Buyer. To the actual knowledge of Seller, such financial information
is true and correct in all material respects.
(17) Americans with Disabilities Act. None of Seller, CPA, Nominee or
URPC has received any written notice from any applicable governmental authority
requiring any alterations to be made to the Premises in order to comply with the
Americans with Disabilities Act, 42 U.S.C. Section 12101-12213 (the "ADA"); and
Seller has no actual knowledge that any material alterations to the Premises are
presently required in order to comply with the ADA.
(18) Insurance. To the actual knowledge of Seller, Seller has
delivered to Buyer within the Due Diligence Materials a true, correct and
complete list of all policies of insurance affecting the Premises. To the actual
knowledge of Seller, each such policy is in full
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<PAGE> 22
force and effect, all premiums have been paid in full through May 31, 1997, and
none of Seller, CPA, Nominee or URPC has received any notice or request from
any insurance company or Board of First Underwriters (or organization
exercising functions similar thereto) requiring the performance of any work or
alteration in respect of the Property, or any part thereof, or canceling or
threatening to cancel any of said policies, and such policies, taken together,
satisfy all insurance requirements under the Property Agreements.
(19) Environmental Matters. To the actual knowledge of Seller (which
knowledge is based solely on the environmental reports listed on Exhibit "G"
(the "ENVIRONMENTAL REPORTS"), with no other investigation having been taken):
(a) Except as disclosed in any Environmental Reports, the
Premises presently are free of unlawful contamination from any substance of
material presently identified to be toxic or hazardous according to any federal,
state, local or municipal law, statute, ordinance, regulation, directive or
order of any applicable governmental, entity relating to the physical or
environmental condition of the Premises, including, without limitation, 42
U.S.C. Section 9601, et seq., as amended (collectively, the "ENVIRONMENTAL
LAWS") including, without limitation, any asbestos, polychlorinated biphenyls,
radioactive substance, methane, volatile hydrocarbons, industrial solvents or
any other material or substance which has in the past or could presently or at
any time in the future pose, cause or constitute a health, safety or hazard to
the environment, public health, any person or property.
(b) Except as disclosed in any Environmental Reports, none of
Seller, CPA, or Nominee has caused or suffered to occur an unlawful and material
discharge, disposal, spillage, loss, seepage or filtration of oil or petroleum,
chemical liquids or solids, liquid or gaseous products, hazardous waste,
hazardous substance of material at, upon, under or within the Premises or any
portion thereof or any contiguous real estate;
(c) Except as disclosed in any Environmental Reports, none of
Seller, CPA or Nominee has been and is not involved in operations at or near the
Premises which violate Environmental Laws and which could lead to the imposition
on the Company of liability or the creation of a lien on the Premises of any
portion thereof, under the Environmental Laws.
(20) Nominee Stock. On the Closing Date, the Company shall be the
sole owner of 100% of the Nominee Stock, free and clear of all liens,
encumbrances, claims, rights, judgments, leases, easements, restrictions and
other matters affecting title, except for the Property Agreements.
(21) Nominee, CPA and Company. Each of Nominee and CPA (and upon
consummation of the Closing Transactions, the Company): (a) is duly formed,
validly existing and in good standing under the laws of the state of its
formation; and (b) has the authority to consummate the Closing Transactions
(including compliance with applicable doing business laws).
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<PAGE> 23
B. Representations and Warranties of Carlyle. Carlyle hereby represents and
warrants the following to Buyer:
(1) Authority. Carlyle has all requisite partnership power and
authority to execute and deliver, and to perform all of its obligations under,
this Agreement.
(2) Due Execution. The execution, delivery and performance of this
Agreement has been duly authorized by all necessary partnership action on the
part of Carlyle and does not and will not (a) require any consent or approval
that has not been obtained (except to the extent provided for in this
Agreement); or (b) violate any provision of Carlyle's organizational documents.
(3) Enforceability. This Agreement constitutes a legal, valid and
binding obligation of Carlyle enforceable against Carlyle in accordance with its
terms, except as limited by bankruptcy, insolvency, reorganization, moratorium
and other similar laws of general applicability relating to or affecting the
enforcement of creditors' rights and general equitable principles.
(4) No Bankruptcy or Dissolution. No "Bankruptcy/Dissolution Event" (as
defined below) has occurred with respect to Carlyle. As used herein, a
"BANKRUPTCY/DISSOLUTION EVENT" means any of the following: (a) the commencement
of a case under Title 11 of the U.S. Code, as now constituted or hereafter
amended, or under any other applicable federal or state bankruptcy law or other
similar law; (b) the appointment of a trustee or receiver of any property
interest; (c) an assignment for the benefit of creditors; (d) an attachment,
execution or other judicial seizure of a substantial property interest; (e) the
taking of, failure to take, or submission to any action indicating an inability
to meet its financial obligations as they accrue; or (t) a dissolution or
liquidation, death or incapacity.
(5) Ownership of Membership Interest. Except for the assignment to Buyer
on the Closing Date as provided in this Agreement, Carlyle has not assigned or
transferred the Carlyle Interest or any portion thereof, and Carlyle owns the
Carlyle Interest free and clear of all liens, encumbrances, claims, rights,
judgments, leases, easements, restrictions and other matters affecting title,
except for the Property Agreements.
(6) Tax Matters. It represents and warrants to Buyer that it is not a
"foreign person" within the meaning of Section 1445 of the Code and the
regulations issued thereunder.
C. Representations and Warranties of Urban. Urban hereby represents and
warrants the following to Buyer:
(1) Authority. Urban has all requisite partnership power and authority
to execute and deliver, and to perform all of its obligations under, this
Agreement.
(2) Due Execution. The execution, delivery and performance of this
Agreement has been duly authorized by all necessary partnership action on the
part of Urban
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<PAGE> 24
and does not and will not (a) require any consent or approval that has not been
obtained (except to the extent provided for in this Agreement); or (b) violate
any provision of Urban's organizational documents.
(3) Enforceability. This Agreement constitutes a legal, valid and
binding obligation of Urban enforceable against Urban in accordance with its
terms, except as limited by bankruptcy, insolvency, reorganization, moratorium
and other similar laws of general applicability relating to or affecting the
enforcement of creditors, rights and general equitable principles.
(4) No Bankruptcy or Dissolution. No Bankruptcy/Dissolution Event has
occurred with respect to Urban.
(5) Ownership of Membership Interest. Except for the assignment to
Buyer on the Closing Date as provided in this Agreement, Urban has not assigned
or transferred the Urban Interest or any portion thereof, and Urban owns the
Urban Interest free and clear of all liens, encumbrances, claims, rights,
judgments, leases, easements, restrictions and other matters affecting title,
except for the Property Agreements.
(6) Tax Matters. It represents and warrants to Buyer that it is not a
"foreign person" within the meaning of Section 1445 of the Code and the
regulations issued thereunder.
D. Representations and Warranties of JMB. JBM hereby represents and
warrants the following to Buyer:
(1) Authority. JMB has all requisite corporate power and authority to
execute and deliver, and to perform all of its obligations under, this
Agreement.
(2) Due Execution. The execution, delivery and performance of this
Agreement has been duly authorized by all necessary corporate action on the part
of JMB and does not and will not (a) require any consent or approval that has
not been obtained (except to the extent provided for in this Agreement); or (b)
violate any provision of JMB's organizational documents.
(3) Enforceability. This Agreement constitutes a legal, valid and
binding obligation of JMB enforceable against JMB in accordance with its terms,
except as limited by bankruptcy, insolvency, reorganization, moratorium and
other similar laws of general applicability relating to or affecting the
enforcement of creditors' rights and general equitable principles.
(4) No Bankruptcy or Dissolution. No Bankruptcy/Dissolution Event has
occurred with respect to JBM.
(5) Ownership of Membership Interest. Except for the assignment to
Buyer on the Closing Date as provided in this Agreement, JMB has not assigned or
transferred
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<PAGE> 25
the JMB Interest or any portion thereof, and JMB owns the JMB Interest free and
clear of all liens, encumbrances, claims, rights, judgments, leases, easements,
restrictions and other matters affecting title, except for the Property
Agreements.
(6) Tax Matters. It represents and warrants to Buyer that it is not a
"foreign person" within the meaning of Section 1445 of the Code and the
regulations issued thereunder.
E. Representations and Warranties of Buyer. Buyer hereby represents and
warrants the following to Seller:
(1) Authority. Buyer has all requisite power and authority to execute
and deliver, and to perform all its obligations under this Agreement.
(2) Due Execution. The execution, delivery and performance of this
Agreement has been duly authorized by all necessary action on the part of Buyer
and does not and will not (a) require any consent or approval that has not been
obtained or (b) violate any provision of Buyer's organizational documents.
(3) Enforceability. This Agreement constitutes a legal, valid and
binding obligation of Buyer enforceable against Buyer in accordance with its
terms, except as limited by bankruptcy, insolvency, reorganization, moratorium
and other similar laws of general applicability relating to or affecting the
enforcement of creditors' rights and general equitable principles.
(4) No Bankruptcy or Dissolution Event. No Bankruptcy/Dissolution
Event has occurred with respect to Buyer, or if Buyer is a partnership, any of
the general partners in Buyer. Buyer has sufficient capital or net worth to meet
its obligations, including payment of the Purchase Price, under this Agreement.
F. Survival. Except as otherwise provided, any cause of action with
respect to a breach of the representations and warranties set forth in this
Paragraph 8 shall survive until December 31, 1997, at which time such
representations and warranties (and any cause of action resulting from a breach
thereof not then in litigation) shall terminate.
G. Knowledge as a Defense. Seller shall have no liability with respect
to a breach of the representations and warranties set forth in this Agreement
to the extent that Buyer proceeds with the Closing with actual knowledge of such
breach.
H. Certain Limitations. As used in this Agreement, "the actual
knowledge of Seller" or words of similar import, shall mean the present actual
knowledge of any or all of H. Rigel Barber, Julia A. Stibolt and Paul J. Grant
without any duty to make inquiry and excluding any constructive or imputed
knowledge from any other person; provided, however, that nothing in this
Agreement shall be deemed to create or impose any personal liability of any
kind on H. Rigel Barber, Julia A. Stibolt and Paul J. Grant. Seller shall have
no further liability under this Agreement in connection with any representation
or warranty to the extent
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<PAGE> 26
the accuracy of the same is confirmed by an estoppel certificate delivered to
Buyer pursuant to this Agreement. Notwithstanding anything to the contrary in
this Agreement and without limitation upon the limitations elsewhere in this
Agreement: (1) neither Seller nor Buyer ("BENEFITTING PARTY") shall make a
Claim against the other (the "NON-BENEFITTING PARTY") for damages for breach or
default of any representation or warranty under this Paragraph 8 or any other
breach hereof, unless the amount of such Claim, in the Benefitting Party's
reasonable opinion, exceeds, in the aggregate, an amount equal to $225,000; and
(2) under no circumstances shall Seller be liable to Buyer on account of this
Agreement, any covenant, representation, warranty, or indemnification
obligation herein, any document executed in connection with this Agreement or
any transaction or matter contemplated hereby, in an aggregate amount in excess
of an amount equal to $8,000,000. In the event of a breach of this Agreement,
the Benefitting Party shall not be entitled to recover consequential damages.
I. Certain Interim Covenants of Seller. Until the Closing Date or the
sooner termination of this Agreement:
(1) Seller shall cause the Property to be operated and maintained in
the same manner as prior hereto pursuant to its normal course of business (such
maintenance obligation 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
eminent domain or other events beyond the control of Seller, including changes
in laws, rules, ordinances and regulations.
(2) Seller shall not permit any additional service contracts or other
similar agreements affecting the Property to be entered into or renewed without
the prior consent of Buyer, except service contracts deemed reasonably necessary
by Seller which are cancelable on 30 days' notice.
(3) Seller shall cause the Property to be offered for lease in the
same manner as prior hereto pursuant to its normal course of business and shall
keep Buyer reasonably informed as to the status of leasing prior to the Closing
Date. Seller shall not permit any new Tenant Leases or material modifications of
existing Tenant Leases without the consent of Buyer. In no event shall Seller
have any obligation to cause any new Tenant Lease to be entered into or permit
the modification of any existing Tenant Lease unless Buyer shall agree in
writing to cause the Company to pay or reimburse Seller on the Closing Date for
all tenant improvement costs and leasing commissions incurred under or in
connection therewith.
(4) Subject to the terms of the Tenant Leases, Seller shall provide
Buyer with reasonable access to the Premises through the Closing Date. Buyer's
activities at the Premises shall at all times be conducted in compliance with
applicable laws and the terms of the Property Agreements, and in a manner so as
to not cause damage, loss, cost or expense to Urban, CPA, Nominee, the Premises
or the tenants of the Premises (and without unreasonably interfering with or
disturbing any tenant at the Premises), and Buyer shall promptly restore the
Premises to its condition immediately preceding such access and shall keep the
Premises free and clear of any mechanic's liens or materialmen's liens in
connection with such access. In no event shall Buyer contact the Massachusetts
Transportation Authority, Existing Lender or the
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<PAGE> 27
Boston Redevelopment Authority or any tenant of the Premises nor shall Buyer
contact any government authority having jurisdiction over the Property without
Seller's express written consent, which shall not be unreasonably withheld or
delayed, but may be conditioned upon making arrangements for a representative of
Seller to be present during any such communications. Buyer shall provide Seller
with copies of the comprehensive general liability insurance policies which
shall be maintained by Buyer and each consultant which Buyer will have present
on the Premises prior to the date of entry upon the Premises, with the limits,
coverage and insurer under such policies being reasonably satisfactory to
Seller. Buyer shall inform Seller at least 24 hours in advance of each intended
entry onto the Premises and Seller shall have the right, at its option, to cause
a representative of Seller to accompany Buyer or its representatives during such
entry. Any intrusive physical testing (environmental, structural or otherwise)
at the Premises (such as soil borings or the like) shall be conducted by Buyer
only after obtaining Seller's prior written consent to such testing, which
consent shall be conditioned upon, among other things, Seller's reasonable
approval of the following: (a) the contractor who will be conducting such
testing; (b) such contractor's insurance coverage as provided above; (c) the
scope and nature of the testing to be performed by such contractor; and (d) the
written agreement by such contractor to be bound by the confidentiality
provisions of Paragraph 11F. Buyer shall indemnify, protect, defend and hold
Seller, CPA, Nominee and their respective partners, members, shareholders,
officers, directors, employees, members, managers, trustees, beneficiaries,
contractors, agents and advisors harmless from and against any Claim in any way
arising from the inspections or examinations of the Premises by Buyer or its
agents or contractors. Nothing in this subparagraph shall be construed as
granting Buyer any due diligence contingency, Buyer acknowledging that Buyer is
fully satisfied with its due diligence investigation of the Property and the Due
Diligence Materials.
9. DISCLAIMER. AS AN ESSENTIAL INDUCEMENT TO SELLER TO ENTER INTO THIS
AGREEMENT, BUYER ACKNOWLEDGES, UNDERSTANDS AND AGREES AS OF THE DATE HEREOF AND
AS OF THE CLOSING DATE AS FOLLOWS:
A. DISCLAIMER.
(1) AS-IS, WHERE-IS. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS
AGREEMENT, THE SALE OF THE SUBJECT
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<PAGE> 28
INTEREST HEREUNDER IS AND WILL BE MADE ON AN "AS IS, WHERE IS" BASIS AND SELLER
HAS NOT MADE, DOES NOT MAKE AND SPECIFICALLY NEGATES AND DISCLAIMS ANY
REPRESENTATIONS, WARRANTIES OR GUARANTIES OF ANY KIND OR CHARACTER WHATSOEVER,
WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, PAST, PRESENT OR FUTURE OF, AS TO,
CONCERNING OR WITH RESPECT TO THE SUBJECT INTERESTS, THE COMPANY, THE PROPERTY
OR ANY OTHER MATTER WHATSOEVER.
(2) SOPHISTICATION OF BUYER. BUYER IS A SOPHISTICATED BUYER WHO IS
FAMILIAR WITH THE OWNERSHIP AND OPERATION OF REAL ESTATE PROJECTS SIMILAR TO THE
PROPERTY AND BUYER HAS COMPLETED ALL PHYSICAL AND FINANCIAL EXAMINATIONS
RELATING TO THE ACQUISITION OF THE SUBJECT INTERESTS HEREUNDER IT DEEMS
NECESSARY, AND WILL ACQUIRE THE SAME SOLELY ON THE BASIS OF A SUCH EXAMINATIONS
AND THE TITLE INSURANCE PROTECTION AFFORDED BY THE TITLE POLICIES AND NOT ON ANY
INFORMATION PROVIDED OR TO BE PROVIDED BY SELLER (OTHER THAN AS EXPRESSLY
PROVIDED IN THIS AGREEMENT).
(3) DUE DILIGENCE MATERIALS. ANY INFORMATION PROVIDED OR TO BE
PROVIDED WITH RESPECT TO THE PROPERTY, THE COMPANY OR THE SUBJECT INTEREST IS
SOLELY FOR BUYER'S CONVENIENCE AND WAS OR WILL BE OBTAINED FROM A VARIETY OF
SOURCE AND SELLER HAS NOT MADE AN INDEPENDENT INVESTIGATION OR VERIFICATION OF
SUCH INFORMATION AND MAKES NO REPRESENTATIONS AS TO THE ACCURACY OR COMPLETENESS
OF SUCH INFORMATION (EXCEPT TO THE EXTENT PROVIDED IN THE AGREEMENT).
B. SURVIVAL. THIS PARAGRAPH 9 SHALL SURVIVE THE TERMINATION OF THIS
AGREEMENT OR THE CLOSING DATE AND SHALL NOT BE DEEMED TO HAVE MERGED INTO ANY OF
THE DOCUMENTS EXECUTED OR DELIVERED AT CLOSING. TO THE EXTENT REQUIRED TO BE
OPERATIVE, THE DISCLAIMERS OR WARRANTIES CONTAINED HEREIN ARE "CONSPICUOUS"
DISCLAIMERS FOR PURPOSES OF ANY APPLICABLE LAW, RULE, REGULATION
OR ORDER.
/S/ BMB
------------------
INITIALS OF BUYER
10. Conditions to Closing.
A. Seller's Conditions to Closing. In addition to the conditions
provided in other provisions of this Agreement, Seller's obligations to perform
its undertakings provided in this Agreement (including its obligation to sell
the Property) are conditioned on the following:
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<PAGE> 29
(1) Performance by Buyer. The due performance by Buyer of each and
every undertaking and agreement to be performed by it hereunder (including the
delivery to Seller of the items specified to be delivered by Buyer in Paragraph
6 hereof) and the material truth of each representation and warranty made by
Buyer in this Agreement at the time as of which the same is made and as of the
Closing Date as if made on and as of the Closing Date.
(2) No Bankruptcy or Dissolution. That at no time on or before the
Closing Date shall any Bankruptcy/Dissolution Event have occurred with respect
to Buyer.
(3) Certain Property-Agreement Estoppels. Seller shall have
received an estoppel certificate from each party to the REA, the Development
Agreement, the Chilled Water Agreements and certain other agreements affecting
title to the Central Area substantially in the forms of Exhibit "DD" (or such
other form which is required by the applicable agreement), and indicating no
material and adverse matters. Buyer shall provide the estoppel to be provided by
the owner of the Marriott hotel as indicated.
(4) Landlord Estoppels. Seller shall have received an estoppel
certificate from the landlord under each of the Central Area Sublease Documents,
the Master Lease Documents, the Dartmouth Garage Lease Documents and the
Marriott Garage Sublease Documents, substantially in the forms of "EE" (or such
other form which is required of the landlord under the applicable lease), and
indicating no material and adverse matters. Urban shall provide the estoppel to
be provided by the landlord under the Central Area Sublease Documents, and Buyer
shall cause the estoppel to be provided by the owner of the Marriott Hotel.
(5) Existing Lender's Estoppel. Seller shall have received the
Existing Lender's Estoppel.
B. Buyer's Conditions to Closing. In addition to the conditions
provided in other provisions of this Agreement, Buyer's obligations to perform
its undertakings provided in this Agreement (including its obligation to
purchase the Property) are conditioned on the following:
(1) Performance by Seller. The due performance by Seller of each
and every undertaking and agreement to be performed by it hereunder (including
the delivery to Buyer of the items specified to be delivered by Seller in
Paragraph 6) and the material truth of each representation and warranty made by
Buyer in this Agreement at the time as of which the same is made and as of the
Closing Date as if made on and as of the Closing Date.
(2) No Bankruptcy or Dissolution. That at no time on or before the
Closing Date shall a Bankruptcy/Dissolution Event have occurred with respect to
any of (a) CPA, Carlyle, Urban, JMB or tenants under Tenant Leases demising in
excess of 25,000 rentable square feet within the Central Area.
(3) Certain Project Agreement Estoppels. Buyer shall have received
an estoppel certificate from each party to the REA, the Development Agreement,
the Chilled Water Agreements and certain other agreements affecting title to the
Central Area substantially in the forms of Exhibit "DD" (or such other form
which is required by the applicable agreement), and indicating no material and
adverse matters.
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<PAGE> 30
(4) Landlord Estoppels. Buyer shall have received an estoppel
certificate from the landlord under each of the Central Area Sublease Documents,
the Master Lease Documents, the Dartmouth Garage Lease Documents and the
Marriott Garage Sublease Documents, substantially in the forms of Exhibit "EE"
(or such other form which is required of the landlord under the applicable
lease), and indicating no material and adverse matters.
(5) Tenant Estoppels. Buyer shall have received on or before the
Closing Date, estoppel certificates from tenants under the Tenant Leases
occupying at least 80% of the net leased, rentable square footage of each of the
retail and office components of the Central Area demised by the Tenant Leases
described in Exhibit "P" (excluding those Tenant Leases which have a term
expiring prior to the Closing Date), including each Major Tenant, in
substantially the form attached as Exhibit "FF or otherwise in the form required
by the applicable Tenant, and containing no material and adverse modifications
or material and adverse additional matters.
(6) Existing Lender's Estoppel. Buyer shall have received the
Existing Lender's Estoppel.
C. Failure of Certain Conditions. Notwithstanding subparagraph B
above, in the event that any of the conditions set forth in subparagraphs (3),
(4) or (5) of subparagraph B above are not satisfied as of January 10, 1997,
then the Closing Date shall be extended to January 17, 1997. If the Closing
Date is extended to January 17, 1997 and any of the conditions set forth in
subparagraphs: (3), (4) or (5) of subparagraph B above are not satisfied as of
January 17, 1997, then Buyer shall have the election at the Closing Conference
to either (a) terminate this Agreement, or (b) extend the Closing Date to
January 24, 1997; provided, however, that if Buyer elects option (a) above,
then Seller, at its option, may void such termination and Buyer shall be
obligated to consummate the Closing Transactions in accordance with this
Agreement at the Closing Conference if Seller agrees in a written notice
delivered to Buyer at the Closing Conference to be responsible for the "Missing
Required Estoppel Indemnification Obligation" (as defined below). If the
Closing Date is extended to January 24, 1997 and any of the conditions set
forth in subparagraphs (3), (4) or (5) of subparagraph B above are not
satisfied as of January 24, 1997, then Buyer shall have the election at the
Closing Conference to terminate this Agreement; provided, however, that Seller,
at its option, may void such termination and Buyer shall be obligated to
consummate the Closing Transactions in accordance with this Agreement at the
Closing Conference if Seller agrees in a written notice delivered to Buyer at
the Closing Conference to be responsible for the Missing Required Estoppel
Indemnification Obligation. If this Agreement is terminated by operation of
this subparagraph C, the Deposit shall be returned to Buyer, and neither party
shall have any further rights or obligations to each other hereunder (except
for those provisions under this Agreement which, by their express terms,
survive such termination). If the Closing Date is extended to January 24, 1997,
and Buyer and Seller shall not have received the estoppel from the Boston
Redevelopment Authority meeting the requirements of Paragraph 1OA(4) (the "BRA
Estoppel"), then at Buyer's option (i) Seller and Buyer shall consummate the
Closing Transactions, except that the Dartmouth Garage and the Personal
Property, Intangible Property and Property Agreements related to the Dartmouth
Garage (collectively, the "Dartmouth Property") shall not be assigned to the
Company and shall be retained by Urban (and there shall be no reduction in the
Purchase Price as a result of failure by Urban to assign the Dartmouth Property
to the Company); (ii) Seller shall continue to use diligent efforts to obtain
the BRA Estoppel, and upon the receipt by the parties of the BRA Estoppel, the
Dartmouth Property shall be transferred to the Company as contemplated by this
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<PAGE> 31
Agreement; and (iii) prior to the date of the transfer of the Dartmouth
Property to the Company, Seller (other than Carlyle) shall indemnify and make
Buyer whole from all economic consequences of the failure to transfer the
Dartmouth Property on the Closing Date. The obligations set forth in clauses
(ii) and (iii) shall survive the Closing Date. The obligation set forth in
clause (iii) shall mean, that for the period commencing on the Proration Date
and ending immediately prior to the transfer of the Dartmouth Property as
contemplated in clause (ii), Seller (other than Carlyle) shall pay to Buyer on
a quarterly basis in arrears (within 20 days after the end of each quarter), an
amount equal to that portion of net cash flow from the Dartmouth Property which
Buyer would have received under the LLC Agreement had the Dartmouth Property
been transferred under this Agreement to the Company on the Closing Date (the
amount payable with respect to the first quarter being adjusted by the
prorations provided for in Paragraph 6D assuming income and expenses for the
Dartmouth Garage had been prorated as of the Proration Date in the manner
provided for in such Paragraph 6D). In no event prior to the transfer of the
Dartmouth Garage as contemplated by clause (ii) above shall Urban transfer or
assign all or any portion of its interest in the Dartmouth Property (whether by
assignment sublease or hypothecation, or otherwise),without the prior written
consent of Buyer. Except as expressly provided in this Paragraph 10C, if the
Closing has not occurred by January 24, 1997 due to the non-satisfaction of any
of the conditions set forth in Paragraph 10, then either of Buyer or Seller may
terminate this Agreement by written notice to the other party, and upon such
termination, the Deposit shall be returned to Buyer, and neither party shall
have any further rights or obligations to each other hereunder (except for
those provisions under this Agreement which, by their express terms, survive
such termination). As used herein, the "MISSING REQUIRED ESTOPPEL
INDEMNIFICATION OBLIGATION" means Seller's obligation to indemnify, protect,
defend and hold the Company, Nominee and Buyer harmless from and against any
and all third party Claims to the extent arising from facts or circumstances
that are inconsistent with the statements set forth in the forms of the
estoppels which are attached as Exhibits "DD", "EE" and "FF" which are needed
to satisfy the conditions set forth in subparagraphs (3), (4) and (5) of
subparagraph B above as of the Closing but which have not been received by
Buyer as of the Closing. In no event shall Seller have any liability or
obligation in connection with the Missing Required Estoppel Indemnification
Obligation unless: (i) Seller elects to assume the Estoppel Indemnification
Obligation pursuant to this subparagraph C; and (ii) the facts and
circumstances giving rise to Seller's indemnification obligation relate to the
period prior to the Closing Date.
11. Miscellaneous.
A. Brokerage Issues.
(1) Except as provided in subparagraph (2) below, Seller
represents and warrants to Buyer, and Buyer represents and warrants to Seller,
that no broker or finder has been engaged by it, respectively, in connection
with any of the transactions contemplated by this Agreement or to its knowledge
is in any way connected with any of such transactions. In the event of a claim
for broker's or finder's fee or commissions in connection herewith, then Seller
shall indemnify, protect, defend and hold Buyer harmless from and against the
same if it shall be based upon any statement or agreement alleged to have been
made by Seller, and Buyer shall indemnify, protect, defend and hold Seller
harmless from and against the same if it shall be based upon any statement or
agreement alleged to have been made by Buyer.
- 30 -
<PAGE> 32
(2) Richard Ellis, LLC ("RELLC") has been engaged by Seller in
connection with the transaction contemplated by this Agreement, and without
limitation on the foregoing provisions of this Paragraph, if and only if the
transaction contemplated hereby shall close in accordance with the terms of this
Agreement, Seller shall pay RELLC a fee pursuant to a separate agreement between
Seller and RELLC.
B. Limitations of Liability. The liability of Carlyle under or in
connection with any required payment or performance by Seller under this
Agreement to the extent related to the Central Area shall be several, and
Carlyle's responsibility for any payment by Seller or liability or obligation of
Seller under this Agreement shall be limited to 50% of such payment, liability
or obligation. JMB and Urban shall be jointly and severally liable for any
payment by Seller or liability or obligation of Seller under this Agreement.
Without limitation on the foregoing: (1) Urban (and not JMB or Carlyle) shall be
solely liable for the obligations, representations, warranties, indemnities and
liability of Seller under this Agreement to the extent the same relate solely to
the Dartmouth Garage; and (2) no present or future partner, member, manager,
director, officer, shareholder, employee, advisor, affiliate or agent of or in
Seller or any affiliate of Seller shall have any personal liability, directly or
indirectly, under or in connection with this Agreement or any agreement made or
entered into under or in connection with 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
respective assets for the payment of any claim or for any performance, and Buyer
hereby waives any and all such personal liability. For purposes of this
subparagraph B, no negative capital account or any contribution or payment
obligation of any partner in Seller shall constitute an asset of Seller. The
limitations of liability contained in this Paragraph shall survive the
termination of this Agreement or the Closing Date, as applicable, and are in
addition to, and not in limitation of, any limitation on liability provided
elsewhere in this Agreement or by law or by any other contract, agreement or
instrument.
C. Successors and Assigns. No party may assign or transfer its rights
or obligations under this Agreement without the prior written consent of the
other parties (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). Notwithstanding the foregoing, Buyer may assign
its rights under this Agreement at any time prior to five (5) business days
prior to the Closing Date to a wholly owned subsidiary of Buyer or of Overseas
Property Leasing Corp. with the consent of Seller (such consent not to be
unreasonably withheld if such assignee executes a written assumption of all of
Buyer's obligations under this Agreement in the form reasonably approved by
Seller and the Letter of Credit is not adversely affected by such assignment),
provided, however, that no such assignment shall operate to release Buyer from
its obligations under this Agreement unless such release is consented to by
Seller in writing. No consent given to any transfer or assignment of a party's
rights or obligations hereunder shall be construed as a consent to any other
transfer or assignment of such party'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 shall be binding upon the
successors and assigns of the parties.
- 31 -
<PAGE> 33
D. 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 United Parcel Service Next Day Air 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 at least five (5) days in
advance):
To Buyer:
Overseas Partners Capital Corp.
115 Perimeter Center Place, Suite 940
Atlanta, Georgia 30346-1223
Attention: Michael J. Molletta,
Office: Vice President/Controller
Telecopier: (770) 913-6756
With Copy To:
Hutchins, Wheeler & Dittmar
101 Federal Street
Boston, Massachusetts 02110
Attention: John C. Thomson, Esq.
Office: (617) 951-6600
Telecopier: (617) 951-1295
To Seller:
c/o JMB Realty Corporation
900 North Michigan Avenue
Chicago, Illinois 60611
Attention: H. Rigel Barber
Office: (312) 440-4800
Telecopier: (312) 915-1970
With Copy To:
c/o JMB Realty Corporation
900 North Michigan Avenue
Chicago, Illinois 60611
Attention: Glenn Emig
Office: (312) 440-4800
Telecopier: (312) 915-1970
- 32 -
<PAGE> 34
With Copy To:
c/o JMB Realty Corporation
900 North Michigan Avenue
Chicago, Illinois 60611
Attention: General Counsel
Office: (312) 440-4800
Telecopier (312) 915-1970
With Copy To:
Pircher, Nichols & Meeks
1999 Avenue of the Stars
Suite 2600
Los Angeles, California 90067
Attention: Real Estate Notices (PGN/RCS)
Office: (310) 201-8900
Telecopier: (310) 201-8922
To Title Company:
Ticor Title Insurance Company
101 Federal Street, 21st Floor
Boston, Massachusetts 02110
Attention: Mr. Robert Capozzi
Office: (617) 737-6061
Telecopier: (617) 261-7641
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 actual receipt
of the same by the party to whom the same is to be given. Notices may be given
by facsimile transmission and shall be deemed given upon the actual receipt of
the same by the individual to which they are addressed, and shall be promptly
followed by a hard copy notice by mail as provided above.
E. Legal Cost. In the event any action be instituted by a party to
enforce this Agreement, the prevailing party in such action (as determined by
the court, agency or other authority before which such suit or proceeding is
commenced), shall be entitled to such reasonable attorneys' fees, costs and
expenses as may be fixed by the decision maker. The foregoing includes, but is
not limited to, reasonable attorneys' fees, expenses and costs of investigation
incurred in (1) appellate proceedings; (2) in any post-judgement proceedings to
collect or enforce the judgement; (3) establishing the right to indemnification;
and (4) any
- 33 -
<PAGE> 35
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: This provision is separate and several and
shall survive the consummation of the transaction contemplated by Agreement or
the earlier termination of this Agreement.
F. Confidentiality. The Closing Transactions and the
terms thereof contemplated in this Agreement, including the Purchase Price and
all other financial terms, as well as the information discovered by Buyer and
its agents in connection with its due diligence investigation of the Property
(including the Due Diligence Materials) shall remain confidential and shall not
be disclosed by either party hereto without the written consent of the other
except (1) to such party's directors, officers, partners, employees, legal
counsel, accountants, lenders engineers, architects, financial advisors and
similar professionals and consultants (including Broker, in the case of Seller)
to the extent such party deems it necessary or appropriate in connection with
the transaction contemplated hereunder (and such party shall inform each of the
foregoing parties of such party's obligations under this Paragraph and shall
secure the agreement of such parties to be bound by the terms hereof); (2) as
otherwise required by law or regulation; (3) to Existing Lender, for the
purposes set forth in Paragraph 5; and (4) to Title Company, in connection with
its services rendered in connection with this Agreement. Each party shall
indemnify, defend and hold the other party harmless from and against any Claims
arising from a breach by it of this Paragraph. The restrictions in this
Paragraph shall survive for a period of one year after the Closing or the
termination of this Agreement.
G. Further Instruments. Each party will, whenever and
as often as it shall be requested so to do by the other, cause to be executed,
acknowledged or delivered any and all such further instruments and documents as
may be necessary or proper, in the reasonable opinion of the requesting party,
in order to carry out the intent and purpose of this Agreement.
H. Matters of Construction.
(1) Incorporation of Exhibits. All exhibits
attached and referred to in this Agreement are hereby incorporated herein as
fully set forth in (and shall be deemed to be a part of) this Agreement.
(2) 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 except the Deposit Escrow Agreement.
(3) Time of the Essence. Subject to subparagraph
(4) below, time is of the essence of this Agreement.
(4) Non-Business Days. Whenever action must be
taken (including the giving of notice or the delivery of documents) under this
Agreement during a certain period of time (or by a particular date) that ends
(or occurs) on a non-business day, then such period
- 34 -
<PAGE> 36
(or date) shall be extended until the immediately following business day. As
used herein, "business day" means any day other than a Saturday, Sunday or
federal or Massachusetts state holiday.
(5) Severability. If any term or provision of
this Agreement or the application thereof to any person or circumstance shall,
to any extent, be invalid or unenforceable, the remainder of this Agreement, or
the application of such term or provision to persons or circumstances other
than those as to which it is held invalid or unenforceable, shall not be
affected thereby, and each such term and provision of this Agreement shall be
valid and be enforced to the fullest extent permitted by law.
(6) Interpretation. Words used in the singular
shall include the plural, and vice-versa, and any gender shall be deemed to
include the other. Whenever the words "including", "include" or "includes" are
used in this Agreement, they should be interpreted in a non-exclusive manner.
The captions and headings of the Paragraphs of this Agreement are for
convenience of reference only, and shall not be deemed to define or limit the
provisions hereof. Except as otherwise indicated, all Exhibit and Paragraph
references in this Agreement shall be deemed to refer to the Exhibits and
Paragraphs in this Agreement. Each party acknowledges and agrees that this
Agreement (a) has been reviewed by it and its counsel; (b) is the product of
negotiations between the parties, and (c) shall not be deemed prepared or
drafted by any one party. In the event of any dispute between the parties
concerning this Agreement, the parties agree that any ambiguity in the
language of the Agreement is to not to be resolved against Seller or Buyer,
but-shall be given a reasonable interpretation in accordance with the plain
meaning of the terms of this Agreement and the intent of the parties as
manifested hereby.
(7) No Waiver. Waiver by one party of the
performance of any covenant, condition or promise of the other party shall not
invalidate this Agreement, nor shall it be deemed to be a waiver by such party
of any other breach by such other party (whether preceding or succeeding and
whether or not of the same or similar nature). No failure or delay by one
party to exercise any right it may have by reason of the default of the other
party shall operate as a waiver of default or modification of this Agreement or
shall prevent the exercise of any right by such party while the other party
continues to be so in default.
(8) Consents and Approvals. Except as otherwise
expressly provided herein, any approval or consent provided to be given by a
party hereunder may be given or withheld in the absolute discretion of such
party.
(9) Governing Law. THIS AGREEMENT SHALL BE
CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE COMMONWEALTH
OF MASSACHUSETTS (WITHOUT REGARD TO CONFLICTS OF LAW).
- 35 -
<PAGE> 37
(10) Third Party Beneficiaries. Except as
otherwise expressly provided in this Agreement, Seller and Buyer do not intend
by any provision of this Agreement to confer any right, remedy or benefit upon
any third party (express or implied), and no third party shall be entitled to
enforce or otherwise shall acquire any right, remedy or benefit by reason of
any provision of this Agreement.
(11) Amendments. This Agreement may be amended by
written agreement of amendment executed by all parties, but not otherwise.
(12) Survival. Unless otherwise expressly
provided for in this Agreement, the representations, warranties, covenants and
conditions of the parties set forth in this Agreement shall not survive the
Closing. Notwithstanding the foregoing (a) all indemnification obligations in
this Agreement shall survive the Closing (except that any indemnification
obligation based upon a breach of a representation or warranty shall survive
only for so long as such representation or warranty survives pursuant to this
Agreement); and (b) the indemnification obligations set forth in Paragraphs
8I(4), 11A and 11F shall survive the termination of this Agreement for a period
of one year.
I. Buyer's Delivery of Certain Information. In the event
the transaction contemplated hereby shall fail to close for any reason other
than a default by Seller hereunder, Buyer shall, at its expense, promptly
deliver to Seller all existing originals and copies of the written information
and materials supplied to Buyer by Seller, URPC or their respective agents.
J. Post Closing Access. For a period of five (5) years
subsequent to the Closing Date, Seller and its employees, agents and
representatives shall be entitled to access during business hours to all
documents, books and records given to Buyer by Seller at the Closing for tax
and audit purposes, regulatory compliance, and cooperation with governmental
investigations upon reasonable prior notice to Buyer, and shall have the right
to make copies of such documents, books and records at Seller's expense.
K. Indemnification. If the Closing shall occur, then
the parties shall have the following indemnification obligations:
(1) Company. JMB and Buyer shall cause the
Company to indemnify, protect, defend and hold Seller and CPA harmless from
and against the following: (a) any and all third party Claims for torts or
breaches of contract to the extent related to the Property (including failure
to perform obligations arising under any Property Agreement), which result
from, or relate solely to, actions or events which first occur or arise on or
after the Closing Date; and (b) any Claims arising by reason of the failure to
pay any expense or obligation for which the Company receives a proration
credit pursuant to Paragraph 6D (including failure to return security deposits
credited to the Company).
- 36 -
<PAGE> 38
(2) Seller. Seller shall indemnify, protect,
defend and hold the Company, Nominee and Buyer harmless from and against the
following: (a) any and all third party Claims for the torts or breaches of
contract to the extent related to the Property, which result from, or relate
solely to, actions or events which occur prior to the Closing Date (including
failure to perform obligations arising under any Property Agreement and
relating to the period prior to the Closing Date but excluding obligations or
liabilities which are expressly assumed by the Company pursuant to this
Agreement); (b) any Claims arising by reason of the failure to pay any expense
or obligation for which CPA receives a proration credit pursuant to Paragraph
6D; (c) any Claims arising from a breach by Seller of its representations and
warranties contained in this Agreement or Seller's default under this Agreement
(including failure to perform any of its indemnification obligations under this
Agreement), subject to the limitations set forth in Paragraph 8F, G and H of
this Agreement; (d) any third party Claims arising from any obligation or
liability of CPA or Seller which is not related to or arising from the
Property; and (e) any third party Claims related to the organization, operation
or taxation, of JMB, Carlyle, Urban or CPA but excluding obligations or
liabilities expressly assumed by the Company pursuant to this Agreement.
(3) Buyer. Buyer shall indemnify, protect,
defend and hold CPA and Seller harmless from and against any Claims arising
from a breach by Buyer of its representations and warranties contained in this
Agreement or Buyer's default under this Agreement (including failure to perform
any of its indemnification obligations under this Agreement) subject to the
limitations set forth in Paragraphs 8F, G and H of this Agreement.
L. Indemnification Obligations. The indemnification
obligations under this Agreement shall be subject to the following provisions:
(1) The party seeking indemnification
("INDEMNITEE") shall notify the other party ("INDEMNITOR") of any Claim against
Indemnitee within forty-five (45) days after it has notice of such Claim, but
failure to notify Indemnitor shall in no case prejudice the rights of
Indemnitee under this Agreement unless Indemnitor shall be prejudiced by such
failure and then only to the extent of such prejudice. Should Indemnitor fail
to discharge or undertake to defend Indemnitee against such liability (with
counsel approved by Indemnitee), within thirty (30) days after Indemnitee gives
Indemnitor written notice of the same, then Indemnitee may settle or defend
such Claim, and Indemnitor's liability to Indemnitee shall be conclusively
established by such settlement, the amount of such liability to include both
defense costs and any settlement consideration and the reasonable costs and
expenses, including attorneys' fees, incurred by Indemnitee in effecting such
settlement or judgement. Indemnitee shall have the right to employ its own
counsel in any such case, but the fees and expenses of such counsel shall be at
the expense of Indemnitee unless: (a) the employment of such counsel shall have
been authorized in writing by Indemnitor in connection with the defense of such
action, (b) Indemnitor shall not have employed counsel to direct the defense of
such action, or (c) Indemnitee shall have reasonably concluded that there may
be defenses available to it which are different from or additional to those
available to Indemnitor (in which case Indemnitor shall not have the right to
- 37 -
<PAGE> 39
direct the defense of such action or of Indemnitee), in any of which events
such fees and expenses shall be borne by Indemnitor.
(2) The indemnification obligations under this
Agreement shall cover the costs and expenses of Indemnitee, including
reasonable attorneys' fees, related to any actions, suits or judgments incident
to any of the matters covered by such indemnities.
(3) The indemnification obligations under this
Agreement shall also extend to any present or future advisor, trustee,
director, officer, partner, employee, beneficiary, shareholder, participant or
agent of or in Indemnitee or any entity now or hereafter having a direct or
indirect ownership interest in Indemnitee.
M. Jurisdiction: Venue. Each party hereby consents to
the jurisdiction of any state or federal court located within Suffolk County,
Massachusetts, waives personal service of any and all process upon it, consents
to service of process by registered mail directed to each party at the address
for notices herein, and acknowledges that service so made shall be deemed to be
completed upon actual delivery thereof (whether accepted or refused). Each
party further consents and agrees that venue of any action instituted under
this Agreement shall be proper in Suffolk County, Massachusetts, and hereby
waives any objection to such venue.
N. Waiver of Trial by Jury. The parties hereby
irrevocably waive their respective rights to a jury trial of any claim or cause
of action based upon or arising out of this Agreement. This waiver shall apply
to any subsequent amendments, renewals, supplements or modifications to this
Agreement. In the event of litigation, this Agreement may be filed as a written
consent to a trial by the court.
O. No Recordation. In no event shall this Agreement or
any document or other memorandum related to the subject matter of this
Agreement be recorded without the consent of Buyer and Seller.
P. Counterparts. This Agreement may be executed in one
or more counterparts, each of which shall be deemed to constitute an original,
but all of which, when taken together, shall constitute one and the same
instrument, with the same effect as if all of the parties to this Agreement had
executed the same counterpart.
THE SUBMISSION OF THIS AGREEMENT FOR EXAMINATION IS NOT INTENDED TO AND
SHALL NOT CONSTITUTE AN OFFER TO SELL, OR A RESERVATION OF, OR OPTION OR
PROPOSAL OF ANY KIND FOR THE PURCHASE OF THE SUBJECT INTERESTS. 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
- 38 -
<PAGE> 40
CARLYLE:
CARLYLE REAL ESTATE LIMITED PARTNERSHIP - XIII
an Illinois limited partnership
By: JMB REALTY CORPORATION,
a Delaware corporation
Its General Partner
By: /s/ Glenn E. Emig
----------------------------
Name: Glenn E. Emig
--------------------------
Title: EVP
-------------------------
URBAN:
URBAN INVESTMENT AND DEVELOPMENT CO.
an Illinois general partnership
By: JMB REALTY CORPORATION,
a Delaware corporation
Its Managing General Partner
By: /s/ H. Rigel Barber
---------------------------
Name: H. Rigel Barber
-------------------------
Title: EVP - CEO
------------------------
JMB:
JMB REALTY CORPORATION,
a Delaware corporation
By: /s/ H. Rigel Barber
-------------------------------
Name: H. Rigel Barber
-------------------------------
Name: EVP - CEO
-------------------------------
- 39 -
<PAGE> 41
BUYER:
OVERSEAS PARTNERS CAPITAL CORP.,
a Delaware corporation
By: /s/ Bruce M. Barone
-------------------------------
Name: Bruce M. Barone
Title: President
- 40 -
<PAGE> 42
EXHIBIT LIST
<TABLE>
<S> <C>
Exhibit "A" - Form of Certificate of Merger
Exhibit "B" - Form of LLC Agreement
Exhibit "C" - Form of Management Agreement
Exhibit "D" - Form of Consulting Agreement
Exhibit "E" - List of Central Area Sublease Documents
Exhibit "F" - List of Dartmouth Garage Lease Documents
Exhibit "G" - List of Due Diligence Materials
EXHIBIT "H" - List of Existing Loan Documents
Exhibit "I" - List of Marriott Garage Sublease Documents
Exhibit "J" - List of Master Lease Documents
Exhibit "K" - List of Parking Agreements
Exhibit "L" - List of Certain Permitted Exceptions
Exhibit "M" - List of Certain Personal Property
Exhibit "N" - List of Certain Property Agreements
Exhibit "O" - List of Service Contracts
Exhibit "P" - List of Tenant Leases
Exhibit "Q" - Form of Existing Lender's Estoppel
Exhibit "R" - Form of Agreement of Merger
Exhibit "S" - Form of Certificate of Formation
Exhibit "T" - Form of Central Area Bill of Sale, Assignment and
Assumption
Exhibit "U" - Form of Dartmouth Garage Lease Assignment
Exhibit "V" - Form of Dartmouth Garage Bill of Sale, Assignment
Assumption
Exhibit "W" - Form of Membership Assignment and Assumption
Exhibit "X" - Form of Non-Foreign Status Certificate
Exhibit "Y" - List of Existing Property Employees
Exhibit "Z" - Certain Assumed Leasing Costs
Exhibit "AA" - List of Permits and Approvals
Exhibit "BB" - List of Pending Disputes
Exhibit "CC" - Certain Financial Information
Exhibit "DD" - Forms of Certain Property Agreement Estoppels
Exhibit "EE" - Forms of Landlord Estoppels
Exhibit "FF" - Form of Tenant Estoppel
</TABLE>
- 41 -
<PAGE> 1
EXHIBIT 10.fff
FIRST AMENDMENT TO PURCHASE AND SALE AGREEMENT
THIS FIRST AMENDMENT TO PURCHASE AND SALE AGREEMENT (this "AMENDMENT") is
made and entered into as of January 23, 1997, by and among OVERSEAS PARTNERS
CAPITAL CORP., a Delaware corporation ("BUYER"), CARLYLE REAL ESTATE LIMITED
PARTNERSHIP - XIII, an Illinois limited partnership ("CARLYLE"), URBAN
INVESTMENT AND DEVELOPMENT CO., an Illinois general partnership ("URBAN"), and
JMB REALTY CORPORATION, a Delaware corporation ("JMB").
RECITALS
WHEREAS, Buyer, Carlyle, Urban and JMB are parties to that certain
agreement (the "PURCHASE AGREEMENT") captioned "PURCHASE AND SALE AGREEMENT",
dated as of December 31, 1996.
WHEREAS, the parties desire to make certain amendments to the Purchase
Agreement.
NOW, THEREFORE the parties hereby amend the Purchase Agreement as follows:
Section 1. Definition of Purchase Price. The definition of "Purchase
Price" set forth in Section 1 of the Purchase Agreement is hereby modified
replaced with the following:
"PURCHASE PRICE" means the sum of Seventy One Million Nine Hundred Eighty
Nine Thousand One Hundred Sixty and 50/100 Dollars ($71,989,160.50).
Section 2. Acknowledgement. The parties hereby acknowledge and agree that
the amended definition of the Purchase Price provided for in Section 1 of this
Amendment reflects the adjustments required by Section 6D(3) of the Purchase
Agreement and certain other adjustments agreed upon by the parties, subject to
the last two sentences of Section 6D(4) of the Purchase Agreement. The Purchase
Price remains subject to the adjustments and prorations provided for in Section
6D of the Purchase Agreement (other than Section 6D(3) of the Purchase
Agreement), which are reflected on the Closing Statement executed by the parties
on the date hereof, but such adjustments and prorations remain subject to the
last two sentences of Section 6D(4) of the Purchase Agreement.
Section 3. LLC Agreement and Consulting Agreement. The forms of the LLC
Agreement and Consulting Agreement attached as Exhibits "B" and "D" to
1
<PAGE> 2
the Purchase Agreement, respectively, are hereby replaced with the forms of the
LLC Agreement and Consulting Agreement attached hereto.
Section 4. Entire Agreement. The Purchase Agreement as amended by this
Amendment constitutes the entire agreement between the parties regarding the
subject matter thereof.
Section 5. Counterparts. This Amendment may be executed in several
counterparts, each of which shall be deemed an original, but all of which shall
constitute one and the same document.
IN WITNESS WHEREOF, the undersigned have executed this Amendment as of the
date first above written.
Buyer:
OVERSEAS PARTNERS CAPITAL CORP.,
a Delaware corporation
By: /s/ Bruce M. Barone
--------------------------------
Name: Bruce M. Barone
------------------------------
Title: President
-----------------------------
Carlyle:
CARLYLE REAL ESTATE LIMITED PARTNERSHIP - XIII,
an Illinois limited partnership
By: JMB REALTY CORPORATION,
a Delaware corporation
Its General Partner
By: /s/ Paul C. Nielsen
---------------------------
Name: Paul C. Nielsen
-------------------------
Title: SVP
------------------------
2
<PAGE> 3
Urban:
URBAN INVESTMENT AND DEVELOPMENT CO.,
an Illinois general partnership
By: JMB REALTY CORPORATION,
a Delaware corporation
Its Managing General Partner
By: /s/ Paul C. Nielsen
-------------------------
Name: Paul C. Nielsen
-------------------------
Title: SVP
-------------------------
JMB:
JMB REALTY CORPORATION,
a Delaware corporation
By: /s/ Paul C. Nielsen
----------------------------
Name: Paul C. Nielsen
----------------------------
Title: SVP
----------------------------
3
<PAGE> 4
20. Successors and Assigns. All provisions of this Agreement shall be
effective on the date hereof, and shall be binding upon and inure to the
benefit of the respective heirs, legal representatives, successors and assigns
of the parties hereto.
COPLEY FUNDING CORPORATION
By: Paul C. Nielsen
-----------------------
Name: Paul C. Nielsen
Title: Vice President
COPLEY FINANCING CORPORATION
By: /s/
-----------------------
Name: /s/
Title: President
COPLEY PLACE ASSOCIATES NOMINEE CORPORATION
By: Paul C. Nielsen
-----------------------
Name: Paul C. Nielsen
Title: Vice President
THE AETNA CASUALTY AND SURETY COMPANY
By: Susan W. Lewis
-----------------------
Name: Susan W. Lewis
Title: Vice President
COPLEY PLACE ASSOCIATES, L.L.C., A DELAWARE LIMITED LIABILITY COMPANY
By: JMB Realty Corporation, a Delaware corporation, Member
By: Paul C. Nielsen
-------------------
Name: Paul C. Nielsen
Title: Senior Vice President
By: Overseas Partners Capital Corp., a Delaware corporation, Member
By: Bruce M. Barone
-------------------
Name: Bruce M. Barone
Title: President
6
<PAGE> 1
EXHIBIT 10.ggg
ASSIGNMENT AND ASSUMPTION
OF MEMBERSHIP INTEREST
THIS ASSIGNMENT AND ASSUMPTION OF MEMBERSHIP INTEREST (this "ASSIGNMENT
AND ASSUMPTION") is made as of the 23 day of January, 1997, by JMB REALTY
CORPORATION, a Delaware corporation ("ASSIGNOR"), to OVERSEAS PARTNERS CAPITAL
CORP., a Delaware corporation ("ASSIGNEE").
RECITALS:
A. Assignor is a Member in that certain limited liability company known as
Copley Place Associates, LLC, a Delaware limited liability company (the
"COMPANY").
B. Assignor desires to transfer to Assignee that portion of the membership
interest of Assignor in the Company (the "SUBJECT INTEREST"), which, when taken
together with the interests being contemporaneously transferred to Assignee by
Carlyle Real Estate Limited Partnership - XIII, an Illinois limited partnership,
and Urban Investment and Development Co., an Illinois general partnership, will
result in Assignee owning 66 2/3% of the membership interests in the Company and
JMB owning the remaining 33 1/3% of the membership interests in the Company, and
Assignee desires to assume such Subject Interest, subject to the terms of this
Assignment and Assumption.
NOW, THEREFORE, THESE PRESENTS WITNESS, that for good and valuable
consideration, the receipt and adequacy of which are hereby acknowledged,
Assignor and Assignee hereby agree as follows:
1 . Assignment. Assignee unconditionally assigns, conveys, transfers and
sets over the Subject Interest to Assignee.
2. Assumption. Assignee hereby accepts the assignment of the Subject
Interest, and assumes the performance of the obligations attendant to the
Subject Interest to the extent first arising from and after the delivery of this
Assignment and Assumption.
3. Binding Effect. This Assignment and Assumption shall be binding upon
and shall inure to the benefit of the respective parties hereto and their
respective legal representatives, successors and assigns.
4. Governing Law. This Assignment and Assumption shall be construed and
enforced in accordance with the internal laws of the State of Delaware (without
regard to conflicts of law).
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<PAGE> 2
5. No Third Party Beneficiaries. Nothing in this Assignment and
Assumption, expressed or implied, is intended to confer any rights or remedies
upon any person, other than the parties hereto and their respective successors
and assigns.
6. Counterparts. This Assignment and Assumption may be executed in
multiple counterparts, all of which when taken together shall deem to constitute
one instrument.
IN WITNESS WHEREOF, Assignor and Assignee have executed and delivered this
Assignment and Assumption as of the day, month and year first above written.
ASSIGNOR:
JMB REALTY CORPORATION,
a Delaware corporation
By: /s/ H. Rigel Barber
---------------------------------
Name: H. Rigel Barber
-------------------------------
Title: EVP
------------------------------
ASSIGNEE:
OVERSEAS PARTNERS CAPITAL CORP.,
a Delaware corporation
By: /s/ Bruce M. Barone
---------------------------------
Name: Bruce M. Barone
-------------------------------
Title: President & CEO
------------------------------
2
<PAGE> 1
EXHIBIT 10.hhh
ASSIGNMENT AND ASSUMPTION
OF MEMBERSHIP INTEREST
THIS ASSIGNMENT AND ASSUMPTION OF MEMBERSHIP INTEREST (this "ASSIGNMENT
AND ASSUMPTION") is made as of the 23 day of January, 1997, by URBAN INVESTMENT
AND DEVELOPMENT CO., an Illinois general partnership ("ASSIGNOR"), to OVERSEAS
PARTNERS CAPITAL CORP., a Delaware corporation ("ASSIGNEE").
RECITALS:
A. Assignor is a Member in that certain limited liability company known as
Copley Place Associates, LLC, a Delaware limited liability company (the
"COMPANY").
B. Assignor desires to transfer its entire membership interest in the
Company (the "SUBJECT INTEREST") to Assignee, and Assignee desires to assume
such Subject Interest, subject to the terms of this Assignment and Assumption.
NOW, THEREFORE, THESE PRESENTS WITNESS, that for good and valuable
consideration, the receipt and adequacy of which are hereby acknowledged,
Assignor and Assignee hereby agree as follows:
1. Assignment. Assignee unconditionally assigns, conveys, transfers and
sets over the Subject Interest to Assignee.
2. Assumption. Assignee hereby accepts the assignment of the Subject
Interest, and assumes the performance of the obligations attendant to the
Subject Interest to the extent first arising from and after the delivery of this
Assignment and Assumption.
3. Binding Effect. This Assignment and Assumption shall be binding upon
and shall inure to the benefit of the respective parties hereto and their
respective legal representatives, successors and assigns.
4. Governing Law. This Assignment and Assumption shall be construed and
enforced in accordance with the internal laws of the State of Delaware (without
regard to conflicts of law).
5. No Third Party Beneficiaries. Nothing in this Assignment and
Assumption, expressed or implied, is intended to confer any rights or remedies
upon any person, other than the parties hereto and their respective successors
and assigns.
1
<PAGE> 2
6. Counterparts. This Assignment and Assumption may be executed in
multiple counterparts, all of which when taken together shall deem to constitute
one instrument.
IN WITNESS WHEREOF, Assignor and Assignee have executed and delivered this
Assignment and Assumption as of the day, month and year first above written.
ASSIGNOR:
URBAN INVESTMENT AND DEVELOPMENT CO.,
an Illinois general partnership
By: JMB REALTY CORPORATION,
a Delaware corporation
By: /s/ Paul C. Nielsen
----------------------------------
Name: Paul C. Nielsen
--------------------------------
Title: SVP
-------------------------------
ASSIGNEE:
OVERSEAS PARTNERS CAPITAL CORP.,
a Delaware corporation
By: /s/ Bruce M. Barone
----------------------------------
Name: Bruce M. Barone
--------------------------------
Title: President & CEO
-------------------------------
2
<PAGE> 1
EXHIBIT 10.iii
ASSIGNMENT AND ASSUMPTION
OF MEMBERSHIP INTEREST
THIS ASSIGNMENT AND ASSUMPTION OF MEMBERSHIP INTEREST (this "ASSIGNMENT
AND ASSUMPTION") is made as of the 23 day of January, 1997, by CARLYLE REAL
ESTATE LIMITED PARTNERSHIP - XIII, an Illinois limited partnership ("ASSIGNOR"),
to OVERSEAS PARTNERS CAPITAL CORP., a Delaware corporation ("ASSIGNEE").
RECITALS:
A. Assignor is a Member in that certain limited liability company known AS
Copley Place Associates, LLC, a Delaware limited liability company (the
"COMPANY").
B. Assignor desires to transfer its entire membership interest in the
Company (the "SUBJECT INTEREST") to Assignee, and Assignee desires to assume
such Subject Interest, subject to the terms of this Assignment and Assumption.
NOW, THEREFORE, THESE PRESENTS WITNESS, that for good and valuable
consideration, the receipt and adequacy of which are hereby acknowledged,
Assignor and Assignee hereby agree as follows:
1 . Assignment. Assignee unconditionally assigns, conveys, transfers and
sets over the Subject Interest to Assignee.
2. Assumption. Assignee hereby accepts the assignment of the Subject
Interest, and assumes the performance of the obligations attendant to the
Subject Interest to the extent first arising from and after the delivery of this
Assignment and Assumption.
3. Binding Effect. This Assignment and Assumption shall be binding upon
and shall inure to the benefit of the respective parties hereto and their
respective legal representatives, successors and assigns.
4. Governing Law. This Assignment and Assumption shall be construed and
enforced in accordance with the internal laws of the State of Delaware (without
regard to conflicts of law).
1
<PAGE> 2
5. No Third Party Beneficiaries. Nothing in this Assignment and
Assumption, expressed or implied, is intended to confer any rights or remedies
upon any person, other than the parties hereto and their respective successors
and assigns.
6. Counterparts. This Assignment and Assumption may be executed in
multiple counterparts, all of which when taken together shall deem to constitute
one instrument.
IN WITNESS WHEREOF, Assignor and Assignee have executed and delivered this
Assignment and Assumption as of the day, month and year first above written.
ASSIGNOR:
CARLYLE REAL ESTATE LIMITED PARTNERSHIP - XIII,
an Illinois limited partnership
By: JMB REALTY CORPORATION,
a Delaware corporation,
its General Partner
By: /s/ Glenn E. Emig
-----------------------------
Name: Glenn E. Emig
-----------------------------
Title: EVP
-----------------------------
ASSIGNEE:
OVERSEAS PARTNERS CAPITAL CORP.,
a Delaware corporation
By: /s/ Bruce M. Barone
------------------------------
Name: Bruce M. Barone
------------------------------
Title: President & CEO
------------------------------
2
<PAGE> 1
EXHIBIT 10.jjj
CONFIRMATORY ASSUMPTION AND REAFFIRMATION AGREEMENT
This Confirmatory Assumption and Reaffirmation Agreement is entered into
as of this 23rd day of January, 1997 by and among COPLEY PLACE ASSOCIATES, LLC.,
a Delaware limited liability company ("Copley"), COPLEY PLACE ASSOCIATES NOMINEE
CORPORATION, a Delaware corporation ("Nominee"), COPLEY FUNDING CORPORATION, a
Delaware corporation ("Funding"), COPLEY FINANCING CORPORATION, a Delaware
corporation ("financing"), and THE AETNA CASUALTY AND SURETY COMPANY, a
Connecticut corporation ("Aetna").
WITNESSETH:
WHEREAS, Copley Place Associates, an Illinois general partnership ("CPA"),
executed and delivered that certain Purchase Money Wrap-Around Installment Note
Secured by Mortgage dated as of September 1, 1983, as amended by that certain
First Amendment to Purchase Money Wrap-Around Installment Note Secured by
Mortgage dated as of March 1, 1992 (as so amended, the "Copley Mortgage Note");
WHEREAS, the Copley Mortgage Note, together -with the security instruments
related thereto, was absolutely assigned by the original holder thereof to
Funding;
WHEREAS, Funding executed and delivered a series of notes to the order of
Financing, and assigned to Funding as collateral for said notes, among other
instruments, the Copley Mortgage Note together with the security instruments
related thereto;
WHEREAS, Financing entered into that certain Financial Guaranty Agreement
dated as of March 11, 1985 for the benefit of Aetna (as amended, the "Financial
Guaranty Agreement"), and as security for, among other things, Financing's
obligations to Aetna pursuant to the Financial Guaranty Agreement, Financing
collaterally assigned to Aetna certain instruments including, without
limitation, the notes issued from Funding to Financing and the pledge of the
Copley Mortgage Note and the security instruments related thereto, all as more
particularly set forth in that certain Assignment and Security Agreement dated
as of December 21, 1984, as amended;
WHEREAS, in connection with A 1992 modification of the terms of the Copley
Mortgage Note, each of CPA, Funding, Financing, Aetna and certain related
parties executed and delivered a series of modifications to the Copley Mortgage
Note, the security therefor, the notes payable from Funding to Financing and the
security therefor, and the obligations of Financing to Aetna and the security
therefor, all as more particularly described in that certain Omnibus Amendment
Agreement dated as of March 1, 1992 by and among Funding, Financing, Aetna and
Aetna Capital Management, Inc. (the "1992 Omnibus Agreement");
<PAGE> 2
WHEREAS, CPA has requested Aetna's consent to a transaction pursuant to
which CPA will be merged into Copley, a newly formed Delaware limited liability
company, and immediately subsequent to such merger certain interests in Copley
will be transferred to a new entity which will become the majority owner of
interests in Copley; and
WHEREAS, it is a condition to Aetna's consent to the proposed transaction
that Copley confirm as successor to CPA all obligations under the instruments
and documentation previously executed by CPA, and Copley and the parties hereto
have agreed to such confirmation and to certain other amendments to such
instruments and documentation as more particularly herein set forth.
NOW THEREFORE, for and in consideration of the foregoing provisions, of
the agreements herein contained, and for other good and valuable consideration,
the receipt and sufficiency of which is hereby acknowledged, the parties hereto
agree as follows:
1. Incorporation of Recitals, All of the foregoing recitals are hereby
incorporated herein and made a art of this Agreement.
2. Definitions. Each capitalized term used in this Agreement and not
herein defined shall have the meaning for such capitalized term set forth in the
1992 Omnibus Agreement. All of the documents executed and delivered by any of
the parties hereto, including, without limitation, the Copley Funding Notes, the
Copley Funding/Copley Financing Collateral Agreements, the Existing Repledge
Documents, the Existing Collateral Documents, the Collateral Amendments, the
Copley Deposit Agreement (as modified by this Agreement), the Copley Equity
Agreement, the 1992 Omnibus Agreement and any and all other instruments or
documents executed by any of the parties hereto in connection with this
transaction being herein referred to individually as a "Document" and
collectively as the "Documents."
3. Confirmation of Release of Texas Mortgage. The parties hereto
acknowledge and agree that the UIDC Deed of Trust Note #1, as modified by the
UIDC Deed of Trust Note #1 Amendment, and the UIDC Deed of Trust Note #2, as
modified by the UIDC Deed of Trust Note #2 Amendment, have been deemed
satisfied, and the UIDC Deed of Trust, as modified by the UIDC Deed of Trust
Modification, has been released from the land records of Harris County, Texas by
Release of Lien dated as of December 19, 1994. Accordingly, notwithstanding
anything to the contrary contained herein, the assumptions and reaffirmations of
the Documents as herein set forth shall not be deemed to refer or apply to any
of the UIDC Deed of Trust Note #1, as modified, the UIDC Deed of Trust Note #2,
as modified, the UIDC Deed of Trust, as modified, the Copley Funding #2 Note, as
modified by the Copley Funding #2 Note Amendment or the Copley Funding #3 Note,
as amended by the Copley Funding #3 Note Amendment. All other Documents remain
in full force and effect as herein provided, with the exception that all
references therein to the UIDC Deed of Trust Note #1, as modified by the UIDC
Deed of Trust Note #1 Amendment, the UIDC Deed of Trust Note
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<PAGE> 3
#2, as modified by the UIDC Deed of Trust Note #2 Amendment the UIDC Deed of
Trust as modified by the UIDC Deed of Trust Modification, the Copley Funding #2
Note, as modified by the Copley Funding #2 Note Amendment, or the Copley Funding
#3 Note, as amended by the Copley Funding #3 Note Amendment shall be deleted to
the extent appropriate to reflect that said instruments have been deemed
satisfied by all parties hereto with an interest therein.
4. Assumption and Reaffirmation by Copley. Copley hereby expressly assumes
and agrees to pay, perform and be bound by all obligations under, arising from
or related to, and all terms and conditions of each of the Documents previously
executed by CPA and the indebtedness evidenced and secured thereby, specifically
including, without limitation, the Existing Collateral Documents, as amended by
the Collateral Amendments, the Copley Deposit Agreement (as modified hereby),
the Copley Equity Agreement, and the mortgage securing the Copley Equity
Agreement, in each case as if Copley had been the original signatory thereof.
This Agreement shall confirm the assumption by Copley of all of CPA's duties and
obligations which assumption also occurred by operation of law in connection
with the merger of CPA into Copley.
5. Reaffirmation by Nominee. Nominee hereby reaffirms all terms and
conditions of each of the Documents previously executed by Nominee and the
indebtedness evidenced and secured thereby, including, without limitation, the
Existing Collateral Documents, as amended by the Collateral Amendments, the
Copley Equity Agreement, and the mortgage securing the Copley Equity Agreement.
6. Reaffirmation by Funding. Funding hereby reaffirms all terms and
conditions of each of the Documents previously executed by Funding and the
indebtedness evidenced and secured thereby, including, without limitation, each
of the Existing Repledge Agreements and the 1992 Omnibus Agreement.
7. Reaffirmation by Financing. Financing hereby. reaffirms all terms and
conditions of each of the Documents previously executed by Financing and the
indebtedness evidenced and secured thereby, including, without limitation, each
of the Existing Repledge Agreements and the 1992 Omnibus Agreement.
8. References. All references in the Documents to CPA shall hereafter be
deemed to refer to and describe Copley. All representations, covenants and
warranties of CPA set forth in any of the Documents are reaffirmed by Copley by
its execution hereof, except to the extent modified by this Agreement.
9. Security Agreement. Copley (as Debtor) hereby grants to Aetna (as
Creditor) a security interest in all personal property and fixtures described in
the Copley Mortgage, and in any other personal property or fixtures constituting
part of the Project.
10. Amendment to Transfer Restrictions in the Documents and Confirmation
Control Provisions, The Documents, and specifically the terms of Paragraph 20 of
the
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<PAGE> 4
Copley Mortgage, as amended by the Copley Mortgage Modification, are hereby
amended to provide that the consent of Aetna to any transfers of the Project (as
such term is defined in the Copley Mortgage) or of any transfers of interests in
Mortgagor (as defined in the Copley Mortgage, referring individually and
collectively to Copley and Nominee) shall continue to be required in accordance
with each of the terms of said Paragraph 20, with the sole exception that the
requirement that JMB Realty Corporation, a Delaware corporation ("JMB") or an
"affiliate" thereof retain at least a fifty-one percent (51%) direct or
indirect interest in and "control" of the Project is hereby amended to provide
that JMB or an "affiliate" thereof must retain at least a one-third interest
(33.33%) in Mortgagor and must continue to manage the Project in accordance with
the terms of that certain "Agreement for Purchase of Consulting and other
Services" by and between Urban Retail Properties Co., a Delaware corporation, as
Consultant, and Overseas Management, Inc., as manager, in the form previously
provided to Aetna (the "Consulting Agreement"), provided, however, that any
termination of such Consulting Agreement or any material change thereto which
occurs without the prior written consent of Aetna may, at Aetna's sole
discretion, constitute an Event of Default under the Copley Mortgage. Copley's
agreement to the terms of this paragraph 10 is a condition to Aetna's consent to
the reduction of JMB's interests in Copley below the 51% threshold currently
in the Copley Mortgage, as modified, and Copley by its execution hereof
specifically acknowledges the terms and conditions of this paragraph 10. The
term "affiliate" as used in this paragraph 10 shall have the identical meaning
for such term used in said Paragraph 20 of the Copley Mortgage, as modified.
11. Amendment to Copley Deposit Agreement. The "Maximum Account Balance,"
as such term is defined in the Copley Deposit Agreement, is hereafter
established at $8,750,000.00, subject to further modification in writing agreed
to by each of the parties to this Agreement.
12. Notices. The Documents are hereby further modified to provide that the
address of Aetna is c/o The Aetna Casualty and Surety Company, Travelers
Insurance, One Tower Square, Hartford, Connecticut 06183-2030, Attention: Real
Estate Investments, and that a copy of all notices given or furnished thereunder
shall be delivered to Ruben, Johnson & Morgan, P.C., City place II, Hartford,
Connecticut 06103, Attention: Marshall S. Ruben, Esq.
13. Waiver of Claims or Defenses. Each of the Documents, as modified, and
every provision, covenant, condition, obligation, right and power contained in
and under each of the Documents, as modified, shall continue in full force and
effect. As a material inducement to Aetna to enter into this Agreement, the
parties hereto other than Aetna each hereby acknowledge, admit, and agree that,
as of the date hereof, there exist no rights of offset, defense, counterclaim,
claim, or objection in favor of any of such parties against Aetna with respect
to any of the Documents, or, in the alternative, that any such defense,
counterclaim, claim, or objection which any or all of them may have or claim, of
any nature whatsoever, whether known or unknown, is hereby expressly and
irrevocably waived and released. Each of the parties hereto other than Aetna
hereby releases and forever discharges Aetna, its directors, officers,
employees, administrators, subsidiaries,
4
<PAGE> 5
affiliates, attorneys, agents, successors, and assigns from any and all rights,
claims, demands, actions, causes of action, suits, proceedings, agreements,
contracts, judgments, damages, debts, costs, expenses, promises, agreements,
duties, liabilities, or obligations, whether in law or in equity, known or
unknown, choate or inchoate, which they have had, now have, or hereafter may
have, arising under or in any manner relating to, whether directly or
indirectly, the Project, any Document or any transaction contemplated by any
Document or this Agreement, from the beginning of time until the date of full
execution and delivery hereof.
14. Costs and Expenses. Copley shall pay all costs, expenses and fees of
Aetna in connection with the negotiation, preparation and execution of this
Agreement Amendment Agreement including, without limitation, all reasonable
attorneys' fees and disbursements.
15. Counterparts. This Agreement may be executed in one or more
counterparts, all of which taken together shall constitute a single instrument.
16. Governing Law. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of New York, provided, however, all
matters related to the Copley Mortgage or the mortgage securing the Copley
Equity Agreement shall be governed by the law of the Commonwealth of
Massachusetts.
17. Headings, etc. All headings and captions preceding the text of the
several paragraphs of this Agreement are intended solely for convenience of
reference and shall not constitute a part of this Agreement nor shall they
affect its meaning, construction or effect.
18. Scope of Modification. Except as expressly provided herein, 'no other
terms and provisions of the Documents shall be modified or changed by this
Agreement, and the terms and provisions of the Existing Repledge Documents (as
amended by this Agreement) and the Existing Collateral Documents (as amended by
this Agreement) shall continue in full force and effect.
19. Exculpation. Any obligations and liabilities of Copley hereunder shall
be subject to the exculpatory provisions set forth in paragraph 43 of the Copley
Mortgage, which exculpatory provisions shall be deemed for all purposes to
apply, in accordance with their terms, to Copley as a limited liability company
and to the members thereof.
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<PAGE> 6
20. Successors and Assigns. All provisions of this Agreement
shall be effective on the date hereof, and shall be binding upon and inure to
the benefit of the respective heirs, legal representatives, successors and
assigns of the parties hereto.
COPLEY FUNDING CORPORATION
By: /s/ Paul C. Nielsen
--------------------------
Name: Paul C. Nielsen
Title: Vice President
COPLEY FINANCING CORPORATION
By: /s/ Alan Meadelson
--------------------------
Name: Alan Meadelson
Title: President
COPLEY PLACE ASSOCIATES NOMINEE CORPORATION
By: /s/ Paul C. Nielsen
--------------------------
Name: Paul C. Nielsen
Title: Vice President
THE AETNA CASUALTY AND SURETY COMPANY
By: /s/ Susan W. Lewis
--------------------------
Name: Susan W. Lewis
Title: Vice President
COPLEY PLACE ASSOCIATES, L.L.C., a Delaware limited liability company
By: JMB Realty Corporation, a Delaware corporation, Member
By: /s/ Paul C. Nielsen
------------------------------
Name: Paul C. Nielsen
Title: Senior Vice President
By: Overseas Partners Capital Corp., a Delaware corporation, Member
By: Bruce M. Barone
------------------------------
Name: Bruce M. Barone
Title: President
6
<PAGE> 1
EXHIBIT 10.kkk
CERTIFICATE OF BORROWER
January 23, 1997
The Aetna Casualty and Surety Company
One Tower Square
Hartford, Connecticut 06183-2020
Copley Financing Corporation
One Tower Square
Hartford, Connecticut 06183-2020
Re: Copley Place Central Area
Boston, Massachusetts
Ladies and Gentlemen:
This Certificate is given by the undersigned with reference to the
following transactions (collectively, the "Transactions"):
A. Carlyle Real Estate Limited Partnership - XIII, an Illinois limited
partnership ("Carlyle"), Urban Investment and Development Co., an Illinois
general partnership ("Urban"), and JMB Realty Corporation, a Delaware
corporation ("JMB"), were, immediately prior to the closing of the Transactions
as of the date hereof (the "Closing"), the sole partners of Copley Place
Associates, an Illinois general partnership ("CPA").
B. CPA was, immediately prior to the Closing, the owner of 1 00% of the
issued and outstanding common stock (the "Nominee Stock") of Copley Place
Associates Nominee Corporation, a Delaware corporation ("Nominee").
C. The Massachusetts Turnpike Authority ("MTA") is the owner of a certain
parcel of land in Boston, Massachusetts, containing approximately 9.5 acres upon
which has been constructed a mixed-use development commonly known as "Copley
Place" (the "Project").
D. To facilitate the construction of the Project, the MTA entered into a
certain Amended and Restated Lease, dated as of January 31, 1980, with Urban
Investment and Development Co., a Delaware corporation ("UIDC"), and
predecessor-in-interest to Urban (as the same has been amended, the "Master
Lease"), whereby the MTA leased certain air rights consisting of the Project to
Urban.
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<PAGE> 2
E. Urban entered into a sublease of a portion of the premises demised by
the Master Lease with UIDC of Massachusetts, Inc., predecessor in interest to
CPA (such sublease, as the same has been amended, the "Central Area Sublease").
F. Nominee, as nominee for CPA pursuant to a certain Nominee Agreement,
dated as of July 18, 1989, between CPA and Nominee (the "Nominee Agreement"), is
the record owner of the sublease hold interest created by the Central Area
Sublease, and the owner of the improvements constructed on the premises demised
by the Central Area Sublease; and CPA was, immediately prior to the Closing, the
record owner of the leasehold interest created by that certain Sublease
Agreement for Garage Facilities, dated February 22, 1982, between UIDC and
Marriott Urban Boston Venture (collectively, the "Central Area").
G. Urban was, immediately prior to the Closing, the record owner of the
leasehold interest created by that certain Indenture of Lease, dated as of March
7, 1986 (the "Dartmouth Garage Lease") and the owner of the improvements
constructed on the premised demised thereby commonly known as the Dartmouth
Street Garage (such leasehold interest and improvements being collectively
referred to herein as the "Dartmouth Garage").
H. Immediately prior to the Closing, Carlyle, Urban and JMB formed Copley
Place Associates, LLC, a Delaware limited liability company (the "Company"), the
membership interests in which were owned by Carlyle, Urban and JMB in the same
proportion as their respective interests in CPA, and in which JMB was the
managing member pursuant to an oral agreement by and between Carlyle, Urban and
JMB.
I. Immediately after the formation of the Company, Carlyle, Urban and JMB
merged CPA into the Company by the execution of a certificate of merger (the
"Certificate of Merger") and filing of the same with the Secretary of State of
the State of Delaware, with the result that the Company was the owner of 100%
of the Nominee Stock and all of CPA's right, title and interest in and to the
Central Area.
J. Immediately after the execution and filing of the Certificate of
Merger, Urban contributed its interest in the Dartmouth Garage to the Company in
return for an increased membership interest in the Company.
K. Immediately after the contribution by Urban of its interest in the
Dartmouth Garage to the Company, Overseas Partners Capital Corp., a Delaware
corporation, or such other entity ("Buyer") as was approved by The Aetna
Casualty and Surety Company, a Connecticut corporation ("Lender"), purchased
66-2/3%
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<PAGE> 3
(the "Buyer Percentage") of the membership interests in the Company (the
"Subject Interests").
L. The Subject Interests consist of the entire membership interest of
Carlyle in the Company (the "Carlyle Interest"), the entire membership interest
of Urban in the Company after taking into account the effect of the contribution
by Urban to the Company of its interest in the Dartmouth Garage (the "Urban
Interest") and that portion of the membership interest of JMB in the Company
which, when taken together with the Carlyle Interest and the Urban Interest,
resulted in Buyer owning the Buyer Percentage of the membership interests in the
Company (the "Subject JMB Interest").
M. Each of Carlyle, Urban and JMB sold the Carlyle Interest, the Urban
Interest, and the Subject JMB Interest, respectively, to Buyer and admitted
Buyer as the managing member in the Company.
N. Immediately after the admission of Buyer as a member in the Company,
Carlyle and Urban withdrew from the Company.
0. Immediately after the withdrawal of Carlyle and Urban from the Company,
JMB and Buyer entered into a written limited liability company agreement for the
Company, the form of which was submitted to Lender (the "LLC Agreement"), which
amended and restated in their entirety all prior agreements and understandings
with respect to the Company, and which reflects the foregoing transactions (and
Carlyle and Urban entered into a joinder to such limited liability agreement
from the Company solely to confirm the assignment of the Carlyle Interest and
the Urban Interest to Buyer and their withdrawal from the Company).
P. Immediately after the execution and delivery of the LLC Agreement, the
parties terminated that certain Management Agreement, dated as of September 1,
1983, by and between CPA, as owner, and UIDC, as manager (the "Existing
Management Agreement"). The manager's interest under the Existing Management
Agreement was, immediately prior to the Closing, held by Urban Retail Properties
Co., a Delaware corporation ("URPC").
Q. Immediately after the termination of the Existing Management Agreement,
the Company, as owner, and Overseas Management, Inc., a Delaware corporation
("Manager"), as manager, executed a management agreement, the form of which was
submitted to Lender (the "Management Agreement").
R. Immediately after the execution of the Management Agreement, Manager,
as manager, and URPC, as consultant, executed a consulting agreement, the form
of which was submitted to Lender (the "Consulting Agreement").
3
<PAGE> 4
S. Lender is relying on this Certificate in connection with the
Transactions.
T. Nominee's interest in the Central Area is presently encumbered by the
loan documents described in Exhibit "A" attached hereto (the "Loan Documents").
Unless otherwise defined herein, all capitalized terms used herein shall have
the meaning set forth in Exhibit "A".
With such understanding, the undersigned hereby represents, warrants,
confirms and agrees, on behalf of itself and its successors and assigns, for the
benefit of Lender, and its respective successors and assigns, as follows:
1 . The Closing of the Transactions occurred on the date hereof.
2. As of December 31, 1996, the outstanding principal balance under the
Note and secured by the Loan Documents is $220,464,529.74.
3. Interest on the Note has been paid through December 31, 1996 and there
is no accrued but unpaid interest as of December 31, 1996. The "Deferred Amount"
(as defined in the Note), which constitutes a portion of the outstanding
principal balance set forth in paragraph 2 above, is $11,453,131.40 as of
December 31, 1996. Except for the outstanding principal balance set forth in
paragraph 2 above which is currently not payable, there are no amounts or
charges currently accrued, outstanding or payable under the Loan Documents as of
December 31, 1996.
4. The amount of the most recent payment made on the. Note is
$1,562,214.97.
5. The balance of the "Account" (as defined in the Security Agreement)
held in connection with the Loan is $9,610,968.27 as of December 31, 1996.
6. The balance of the "Operating Account" (as defined in the Security
Agreement) held in connection with the Loan includes a tax impound reserve of
$1,402,621.00, and a working capital reserve of $750,000 as of December 31,
1996.
7. To the best knowledge of the undersigned, there is no default under the
Loan Documents, nor does any state of facts exist which, with the passage of
time or the giving of notice, or both, would ripen into any such default.
8. The information set forth in Exhibit "A" is true and correct.
4
<PAGE> 5
9. The undersigned and the person or persons executing this certificate
on behalf of the undersigned have the power and authority to render this
certificate.
10. Any obligations and liabilities of the undersigned hereunder shall be
subject to the exculpatory provisions set forth in paragraph 43 of the Mortgage.
Very truly yours,
COPLEY PLACE ASSOCIATES, LLC,
a Delaware limited liability company
By: JMB Realty Corporation,
a Delaware corporation
Member
By: /s/ Paul C. Nielsen
--------------------------
Name: Paul C. Nielsen
--------------------------
Title: SVP
--------------------------
5
<PAGE> 6
CERTIFICATE OF BORROWER
EXHIBIT "A"
I. DESCRIPTION OF LOAN DOCUMENTS:
The "Loan Documents" consist of the following:
i. That certain Purchase Money Wrap Around Installment Note Secured by
Mortgage, dated September 1, 1983, in the original principal amount of
$230,000,000, by CPA in favor of UIDC, as amended by that certain First
Amendment to Purchase Money Wrap Around Installment Note Secured by Mortgage,
dated March 1, 1992, by and between CPA, Nominee, Copley Funding Corporation, a
Delaware corporation ("Funding"), Copley Financing Corporation, a Delaware
corporation ("Financing") and Lender (collectively, the "Note").
ii. Purchase Money Wrap Around Mortgage Deed and Security Agreement,
dated September 1, 1983, by CPA in favor of UIDC, as amended by that certain,
Modification Agreement, dated March 1, 1992, by and between CPA, Nominee,
Funding, Financing and Lender (the "Mortgage").
iii. Equity Payment Agreement, dated March 1, 1992, by and between
CPA, Nominee, Funding, Financing and Lender (the "Equity Payment Agreement").
iv. Mortgage Securing Equity Payment Agreement, dated March 1, 1992,
by CPA in favor of Lender.
v. Security Agreement (Deposit Account), dated March 1, 1992, by and
between CPA, Nominee, Funding, Financing and Lender (the "Security Agreement").
vi. Instructions Re Deposit Account from CPA, Nominee and Lender to
State Street Bank and Trust Company, dated as of March 1, 1992.
vii. Loan Reinstatement Letter from Lender dated March 31, 1992.
viii. Closing Certificate dated, March 1, 1992, by CPA and Nominee in
favor of Funding, Financing and Lender.
ix. Management and Leasing Fee Subordination Agreement, dated as of
the date hereof, by and between Company, Nominee, Funding, Financing, Lender and
Manager.
6
<PAGE> 7
x. Consulting Subordination Agreement, dated as of the date hereof, by
and between Company, Nominee, Funding, Financing, Lender and URPC.
xi. Confirmatory Assumption and Reaffirmation Agreement, dated as of
the date hereof, by and among the Company, Nominee, Funding, Financing, Lender
and URPC.
xii. Certificate of Borrower, date as of the date hereof, by Borrower
in favor of Aetna and Financing.
7
<PAGE> 1
EXHIBIT 10.lll
CENTRAL AREA BILL OF SALE,
ASSIGNMENT AND ASSUMPTION AGREEMENT
FOR VALUABLE CONSIDERATION, the receipt and adequacy of which are hereby
acknowledged, the undersigned, COPLEY PLACE ASSOCIATES, an Illinois general
partnership ("ASSIGNOR"), hereby sells, transfers, assigns and conveys to COPLEY
PLACE ASSOCIATES, LLC, a Delaware limited liability company ("ASSIGNEE"), all
right, title and interest of Assignor in and to the "Personal Property',
'Property Agreements' and the 'Intangible Property', as each of the foregoing is
defined in that certain Agreement of Purchase and Sale, dated as of December 31,
1996 (the "PURCHASE AGREEMENT"), by and among Carlyle Real Estate Limited
Partnership - XIII, an Illinois limited partnership, Urban Investment and
Development Co., an Illinois general partnership, JMB Realty Corporation, a
Delaware corporation, and Overseas Partners Capital Corp., a Delaware
corporation, which provides for, among other things, the merger of Assignor into
Assignee. This Bill of Sale, Assignment and Assumption Agreement confirms the
transfer of Assignee's right, title and interest in and to the Personal
Property, the Property Agreements and the Intangible Property by operation of
law through the filing of that certain Certificate of Merger, which was filed
with the Secretary of State of the State of Delaware on the date hereof
evidencing the merger of Assignor into Assignee which was contemplated by the
Purchase Agreement.
The property conveyed hereunder is conveyed by Assignor and accepted BY
Assignee AS IS, WHERE IS, AND WITHOUT ANY REPRESENTATIONS AND WARRANTIES OF ANY
KIND, CHARACTER OR NATURE, EXPRESS, IMPLIED OR OTHERWISE, IT BEING THE INTENTION
OF ASSIGNOR AND ASSIGNEE EXPRESSLY TO NEGATE AND EXCLUDE ALL REPRESENTATIONS AND
WARRANTIES, INCLUDING WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR ANY PARTICULAR PURPOSE, WARRANTIES CREATED BY
ANY AFFIRMATION OF FACT OR PROMISE OR BY ANY DESCRIPTION OF THE PROPERTY
CONVEYED HEREUNDER, OR BY ANY SAMPLE OR MODEL THEREOF, AND ALL OTHER WARRANTIES
WHATSOEVER CONTAINED IN OR CREATED BY THE MASSACHUSETTS UNIFORM COMMERCIAL CODE,
EXCEPT TO THE EXTENT EXPRESSLY CONTAINED IN THE PURCHASE AGREEMENT.
1
<PAGE> 2
This Bill of Sale, Assignment and Assumption may be executed in one or
more identical counterparts, each of which such counterpart shall be deemed an
original for all purposes and all such counterparts collectively consisting of
one such Bill of Sale, Assignment and Assumption.
IN WITNESS WHEREOF, Assignor has executed this Bill of Sale, Assignment
and Assumption as of January 23, 1997.
ASSIGNOR:
COPLEY PLACE ASSOCIATES,
an Illinois general partnership
By: JMB Realty Corporation,
a Delaware corporation,
Its General Partner
By: /s/ Paul C. Nielsen
---------------------
Name: Paul C. Nielsen
---------------------
Title: Senior Vice President
---------------------
2
<PAGE> 3
ASSUMPTION
As of the date above written, Assignee hereby accepts the foregoing Bill
of Sale, Assignment and Assumption and hereby agrees to assume and discharge, in
accordance with the terms thereof, all of the burdens and obligations of
Assignor relating to the Property Agreements first arising or accruing from and
after the date hereof.
ASSIGNEE:
COPLEY PLACE ASSOCIATES, LLC,
a Delaware limited liability company
By: JMB REALTY CORPORATION,
a Delaware corporation
Managing Member
By: /s/ Paul C. Nielsen
----------------------
Name: Paul C. Nielsen
----------------------
Title: Senior Vice President
----------------------
3
<PAGE> 1
EXHIBIT 10.mmm
THE LIMITED LIABILITY COMPANY INTERESTS DESCRIBED HEREIN (THE "INTERESTS") HAVE
BEEN ACQUIRED FOR INVESTMENT AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED. (THE "SECURITIES ACT"), OR UNDER THE SECURITIES LAWS OF
ANY STATE, NOR IS ANY SUCH REGISTRATION CONTEMPLATED. THE INTERESTS MAY NOT BE
SOLD, PLEDGED, HYPOTHECATED OR OTHERWISE TRANSFERRED AT ANY TIME WHATSOEVER
EXCEPT UPON SUCH REGISTRATION, UPON DELIVERY TO THE LIMITED LIABILITY COMPANY OF
AN OPINION OF COUNSEL SATISFACTORY TO THE MANAGER OF THE LIMITED LIABILITY
COMPANY THAT REGISTRATION IS NOT REQUIRED FOR SUCH TRANSFER, AND/OR UPON THE
SUBMISSION TO THE MANAGER OF THE LIMITED LIABILITY COMPANY OF SUCH OTHER
EVIDENCE AS MAY BE SATISFACTORY TO THE MANAGER TO THE EFFECT THAT ANY SUCH
TRANSFER SHALL NOT BE IN VIOLATION OF THE SECURITIES ACT, AND/OR APPLICABLE
STATE SECURITIES LAWS AND/OR ANY RULE OR REGULATIONS PROMULGATED THEREUNDER. THE
INTERESTS ARE ALSO SUBJECT TO OTHER RESTRICTIONS ON TRANSFER, AS SET FORTH IN
THIS AGREEMENT.
AMENDED AND RESTATED
LIMITED LIABILITY COMPANY AGREEMENT
OF
COPLEY PLACE ASSOCIATES, LLC
(A DELAWARE LIMITED LIABILITY COMPANY)
DATED AS OF JANUARY 23, 1997
<PAGE> 2
AMENDED AND RESTATED
LIMITED LIABILITY COMPANY AGREEMENT
OF
COPLEY PLACE ASSOCIATES, LLC
THIS AGREEMENT is made and entered into as of the 23rd day of January,
1997, by and between OVERSEAS PARTNERS CAPITAL CORP., a Delaware corporation
("Overseas"), and JMB REALTY CORPORATION, a Delaware corporation ("JMB").
RECITALS
WHEREAS, COPLEY PLACE ASSOCIATES, LLC (the "Company"), was organized as a
limited liability company under the laws of the State of Delaware on January 23,
1997, pursuant to agreement (the "Original Company Agreement") by and among JMB,
CARLYLE REAL ESTATE LIMITED PARTNERSHIP XIII, an Illinois limited partnership
("Carlyle"), and URBAN INVESTMENT AND DEVELOPMENT CO., an Illinois general
partnership ("Urban").
WHEREAS, as of the date hereof, and immediately prior to the execution of
this Agreement, Overseas acquired 66 2/3% of the interests in the Company, with
JMB retaining 33 1/3% of the interests in the Company.
WHEREAS, JMB and Overseas, as the sole members in the Company, desire to
amend, restate and supersede the Original Company Agreement in its entirety.
IN VIEW OF THE FOREGOING FACTS, and in consideration of the respective
undertakings of the parties hereto, it is hereby agreed as follows:
A. Amendment and Restatement of Company Agreement. JMB and Overseas, as the
sole members in the Company, hereby amend and restate the Original Company
Agreement of the Company in its entirety as follows:
ARTICLE I CONTINUATION OF COMPANY: BASIC INFORMATION.
Section 1.1. Continuation. This Amended and Restated Limited Liability
Company Agreement (sometimes referred to herein as this "Agreement") amends,
restates and supersedes the Original Company Agreement in its entirety. As of
the date of this Agreement, the sole and only rights of the "Members" (as
defined below) as members in the Company shall be as set forth in this
Agreement. The Company shall continue to exist and operate without interruption
as a limited liability company under the laws of the State of Delaware in
accordance with the Delaware Limited Liability Company Act (6 Del. C. section
18-101 et seq., as amended from time to time (the "ACT")).
Section 1.2. Name. The business of the Company shall continue to be
conducted under the name of "Copley Place Associates, LLC," or such other name
as the Managing Member may hereafter determine in compliance with applicable
law; provided that, any such other name shall not
<PAGE> 3
refer to or incorporate the name of any business entity affiliated with any
Member (e.g. the name shall not include the word "Overseas").
Section 1.3. Term. The Company shall continue in full force and effect
until terminated pursuant to Section 8.1 hereof. As used herein, "Company Year"
means (a) the remaining portion of the current calendar year (i.e., the calendar
year in which the date hereof occurs), (b) each full calendar year prior to the
termination of this Company pursuant to Section 8.1 hereof, and (C) that portion
of the calendar year in which this Company terminates pursuant to Section 8.1
hereof.
Section 1.4. Character of Business. The character of the business of the
Company is to continue to own, develop, improve, maintain, market, sell and
otherwise use the "Business Property" (as hereinafter defined) for profit and to
engage in all activities related thereto. All or any portion of the "Company
Property" (as hereinafter defined) may be owned directly by the Company or
through one or more wholly-owned entities acting as nominee (each such entity
being referred to hereinafter as a "Nominee") on behalf of the Company. As of
the date of this Agreement, the Central Area is owned in the name of Copley
Place Associates Nominee Corporation, a Delaware corporation, as nominee for the
Company.
Section 1.5. Names and Addresses of Members. The names and addresses of the
Members are as follows:
Overseas
Overseas Partners Capital Corp.
115 Perimeter Center Place, Suite 940
Atlanta, Georgia 30346
JMB
JMB Realty Corporation
900 North Michigan Avenue
Suite 1900
Chicago, Illinois 60611
Section 1.6. Principal Place of Business: Registered Office and Agent. The
principal place of business of the Company shall be located at 115 Perimeter
Center Place, Suite 940, Atlanta, Georgia 30346, or such other place in the
United States as the Managing Member may designate. The Company may maintain
other offices at such other locations in the United States as the Members shall
determine from time to time. The registered office and registered agent for
service of process of the Company shall be CT Corporation System, 1201 Peachtree
Street, N.E., Atlanta, Georgia 30361, or such other place as the Managing Member
may from time to time designate.
Section 1.7. Company Filings.
- 2 -
<PAGE> 4
A. The Managing Member shall cause any filing to be made, from time to
time, as required by applicable law, whenever there is any change in the
Managing Member, the Company's name, registered office, agent for service of
process, or any existing filing required under the Act or in any jurisdiction in
which the Company engages in business, or an amendment under applicable law.
B. Upon the dissolution of the Company, the Managing Member shall promptly
execute and cause to be filed any certificate of cancellation required by the
Act and any other filings required under applicable laws.
C. The Managing Member shall, from time to time, execute and deliver. any
assumed or fictitious or business name statement or certificate or any similar
document required by applicable law to be filed in connection with the continued
operation of the Company.
D. Each Member shall promptly deliver to the other Member copies of all
filings made on behalf of the Company in accordance with this Section.
Section 1.8. Certain Definitions. As used herein, the following terms have
the following meanings:
"AFFILIATE" means, as to any Member (including Urban Shopping Centers, as
defined below, if it becomes a Member), any parent entity of the Member
(provided such parent entity owns and so long as it continues to own at least
eighty percent [80%] of the Member) or any entity at least eighty percent (80%)
of the ownership interests in which are held and continue to be held directly or
indirectly by the Member or such parent, but shall not include any one or more
individuals, except that "AFFILIATE" shall include (as to JMB only) (i) Urban
Shopping Centers, L.P., Urban Shopping Centers, Inc. or any entity into which
either of the same shall be merged (individually and collectively, "URBAN
SHOPPING CENTERS"), or (ii) any entity at least eighty percent (80%) of the
ownership interests in which are held directly or indirectly and continue to be
held by the shareholders of JMB.
"AGREEMENT," or the "COMPANY AGREEMENT," means this Amended and Restated Limited
Liability Company Agreement, as amended, modified or supplemented from time to
time.
"BANKRUPTCY" of a Member shall be deemed to have occurred upon the commencement
of a case with respect to such Member under Title I I of the United States Code
(as now constituted or hereafter amended) or under any other applicable federal
or state bankruptcy law or other similar law, or if any court enters a decree or
order appointing a receiver, liquidator, assignee, trustee, sequestrator (or
other similar official) of such Member or of any substantial portion of such
Member's property (but only if, in the case of an involuntary proceeding or
appointment, such proceeding or appointment is not dismissed or discharged
within 180 days after its commencement).
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<PAGE> 5
"BUDGET" is defined in Section 5.12.
"BUSINESS PROPERTY" means, collectively, (I) the Central Area, and (ii) the
Dartmouth Garage.
"CAPITAL CONTRIBUTION" means, with respect to any Member as of any time of
determination, the sum of (I) the amount of money that such Member has
contributed to the Company, (ii) the fair market value, as agreed by the
Members, of any property that such Member has contributed, or is deemed to have
contributed pursuant to Section 708 of the Code, to the Company (net of any
liabilities that the Company has assumed or taken subject to, under Section 752
of the Code of 1986 (as amended) (the "CODE") in connection with acquiring such
property from such Member), and (iii) the amount of any Company liabilities that
such Member has assumed, within the meaning of Section 1.704-1 (b)(2)(iv)(c) of
the Income Tax Regulations, other than in connection with receiving one or more
distributions from the Company. As of the date hereof, the amounts of the
Member's. respective Capital Contributions to the Company have been agreed to by
the Members and are set forth on Exhibit "A" attached hereto.
"CASH EXPENDITURES" for the applicable period means cash expenditures made by
the Company or which the Company is obligated to make or which any lender
requires to be escrowed or impounded for or during such period in the operation
of or in connection with the "Company Property," including, without limitation,
payroll, business taxes and real and personal property taxes and assessments,
insurance premiums, leasing commissions and fees, tenant improvements and other
capital costs, all expenditures made or required to be made by the Manager on
behalf of the Company under the Management Agreement or by the Purchased
Services Provider under the Purchased Services Agreement, and all management
fees and expenses, but excluding Debt Service Payments and expenditures to the
extent the same are paid for with Reserve Additions, financing proceeds or sale
proceeds.
"CASH INCOME" for the applicable period means the gross cash revenues and funds
received by the Company in such period or applicable to such period (prepaid
rents, prepaid payments and security deposits and any other items received in
one period and applicable to a later period to be included in Cash Income only
as earned, applied or forfeited), other than funds received as loans from the
Members, Capital Contributions (other than the initial Capital Contributions as
set forth in Exhibit "A" hereto) or financing proceeds or sale proceeds. In
addition, any distribution to the Members from the Company's reserves shall
constitute Cash Income for the period in which such distribution is made.
"CENTRAL AREA" means that certain land described in Exhibit "B," hereunto
annexed and made a part hereof, and the improvements thereon, and all easements
and appurtenances thereto (the Company's interest in said land being a
subleasehold estate pursuant to the Central Area Sublease, which sublease is
subject to the Master Lease).
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<PAGE> 6
"CENTRAL AREA SUBLEASE" means that certain sublease with respect to the Business
Property, captioned "Sublease," dated as of August 31, 1982. by and between
Urban and UIDC of Massachusetts, Inc., a Delaware corporation ("UIDC-MA"), as
predecessor-in-interest to Company Predecessor, as amended.
"CODE" means the Internal Revenue Code of 1986, as amended.
"COMPANY PERCENTAGES" mean the following respective percentages for each of the
Members (as the same may be adjusted by the express provisions elsewhere in this
Agreement), which reflect the Capital Contributions made by the Members to the
Company on or prior to the date hereof:
<TABLE>
<CAPTION>
Company
Member Percentage
------ ----------
<S> <C>
Overseas 66-2/3%
JMB 33-1/3%
</TABLE>
The making of additional Capital Contributions (including, without limitation,
any "Discretionary Capital Contribution" as such term is defined below) by the
Members as provided herein shall not affect the Members' respective Company
Percentages.
"COMPANY PREDECESSOR" means Copley Place Associates, an Illinois general
partnership, as predecessor-in-interest to the Company.
"COMPANY PROPERTY" means all property, of whatever kind or nature, owned by the
Company from time to time, including, without limitation, the Business Property.
"DARTMOUTH GARAGE" means that certain real property and improvements, and
easements and appurtenances thereto, commonly known as the "Dartmouth Street
Garage" located at 128 Dartmouth Street in Boston, Massachusetts (the Company's
interest in such land being a leasehold estate pursuant to the Dartmouth Garage
Lease).
"DARTMOUTH GARAGE LEASE" means that certain lease agreement, captioned "LEASE
BOSTON REDEVELOPMENT AUTHORITY TO URBAN INVESTMENT AND DEVELOPMENT COMPANY OF
PARCELS 11A AND B SOUTH END URBAN RENEWAL AREA BOSTON, MASSACHUSETTS," dated
March 7,1986, by and between Boston Redevelopment Authority, a public body
politic and corporate, organized under the laws of the Commonwealth of
Massachusetts, and Urban Investment and Development Co., a Delaware corporation,
as amended by amendment, captioned "AMENDMENT TO LEASE BOSTON REDEVELOPMENT
AUTHORITY TO URBAN INVESTMENT AND DEVELOPMENT COMPANY OF PARCELS 11A AND B SOUTH
END URBAN RENEWAL AREA BOSTON, MASSACHUSETTS," dated December 30, 1986, with
respect to the Company's leasing of the Dartmouth Garage.
- 5 -
<PAGE> 7
"DEBT SERVICE PAYMENTS" for the applicable period means all installments and
payments of principal and interest and other sums and amounts paid or payable
for or during such period on or in connection with any secured or unsecured
indebtedness of the Company.
"DIRECT LEASE AGREEMENT" means that certain agreement, captioned
"NONDISTURBANCE, RECOGNITION AND DIRECT LEASING AGREEMENT," dated as of August
31, 1982, by and among the Massachusetts Turnpike Authority ("MTA"), Urban
Investment and Development Co., a Delaware corporation, and UIDC-MA, as recorded
in the Suffolk County Registry in Book 10056, Page 242.
"DISCRETIONARY CAPITAL CONTRIBUTION" is as defined in Section 3.4.
"DISTRIBUTABLE CASH" means, collectively, Net Cash Receipts, Net Financing
Proceeds and Net Sales Proceeds.
"EQUITY PAYMENT AGREEMENT" means that certain agreement, captioned "EQUITY
PAYMENT AGREEMENT," dated as of March 1, 1992, by and among Company predecessor,
Copley Place Associates Nominee Corporation, a Delaware corporation, Copley
Funding Corporation, a Delaware corporation, Copley Financing Corporation, a
Delaware corporation, and Aetna Casualty and Surety Company, a Connecticut
corporation, as predecessors-in-interest to Existing Lender, which agreement is
secured by that certain non-recourse second mortgage, dated March 1, 1992.
"EXISTING LENDER" means Travelers Insurance Company, a Connecticut corporation,
as assignee of the interests of Copley Funding Corporation, a Delaware
corporation, Copley Financing Corporation, a Delaware corporation, and Aetna
Casualty and Surety Company, a Connecticut corporation, in and to the "Existing
Loan" (as defined below).
"EXISTING LOAN" means that certain loan encumbering the Central Area in the
original principal amount of $230,000,000 which is held by Existing Lender.
"EXISTING LOAN DOCUMENTS" means all documents, instruments and agreements
evidencing, securing or governing the Existing Loan, including, without
limitation, the Equity Payment Agreement.
"INCOME TAX REGULATIONS" means those regulations covered under the Code, as the
same may be amended from time to time.
"MANAGEMENT AGREEMENT" means that certain management agreement dated as of the
date hereof, by and between Overseas Management, Inc. ("MANAGER"), as manager,
and Company, as owner, pursuant to which Manager is engaged to provide certain
management and leasing services to the Business Property.
"MANAGING MEMBER" means Overseas, and its permitted successors and assigns, as
managing member in the Company.
- 6 -
<PAGE> 8
"MASTER LEASE" means that certain Amended and Restated Lease, dated as of
January 31, 1980, by and among Urban (or its predecessor-in-interest) and MTA as
amended.
"MEMBERS" means the Managing Member and the Non-Managing Member.
"NET CASH RECEIPTS" for the applicable period means the amount, if any, by which
(x) the Cash Income for such period-exceeds (y) the sum of the Cash Expenditures
for such period, the Debt Service Payments for such period, and the Reserve
Additions for such period.
"NET FINANCING PROCEEDS" and "NET SALE PROCEEDS" mean, respectively, the net
proceeds from (1) any financing or refinancing of the Company Property or any
part thereof, and (2) any sale, disposition, taking or loss (including the
proceeds from any eminent domain proceeding or conveyance in lieu thereof or
from casualty insurance [other than rental income insurance] or title insurance)
of the Company Property or any part thereof. In the computation of Net Financing
Proceeds and Net Sale Proceeds there shall be deducted the payment of all costs
and other expenses related thereto (including, but not limited to, brokerage
costs, prepayment penalties, attorneys' and consultants' fees and closing costs)
approved by the Managing Member and the satisfaction of any debt being
refinanced or discharged and any other debts or liabilities of the Company for
which the Managing Member decides to use the same and the setting aside of any
reserves therefrom reasonably deemed proper by the Managing Member.
"NON-MANAGING MEMBER" means JMB, and its permitted successors and assigns, as a
nonmanaging member in the Company.
"RESERVE ADDITIONS" for the applicable period means all reserves taken by the
Company during such period or projected for the balance of the same fiscal year
in amounts determined by the Managing Member.
"PURCHASED SERVICES AGREEMENT" means that certain agreement, captioned
"Agreement for Purchase of Consulting and Other Services", dated as of the date
hereof, by and between Urban Retail Properties Co. a Delaware corporation
("Purchased Services Provider"), and Manager, pursuant to which Purchased
Services Provider is engaged to provide certain management, consultation and
advisory services to Manager and joined in by the Company for certain limited
purposes. The Purchased Services Agreement is subject and subordinate to the
Management Agreement.
"PRIOR MANAGEMENT AGREEMENT" means that certain management agreement dated
September 1, 1983, by and between Purchased Services Provider and Company
Predecessor pursuant to which Purchased Services Provider was, for a period
prior to the date hereof, engaged to provide certain management and leasing
services to the Business Property. The Prior Management Agreement has heretofore
been, or shall concurrently herewith be, terminated.
ARTICLE II CERTAIN INCORPORATED MATTERS.
- 7 -
<PAGE> 9
Section 2. 1. Tax and Accounting. Each and all of the provisions of Exhibit
"C" are incorporated herein and shall constitute part of this Agreement. Exhibit
"C" provides for, among other matters, the maintenance of capital accounts, the
allocation of profits and losses, and the maintenance of books and records.
Section 2.2. Existing Loan. Each and all of the provisions of Exhibit "E"
are incorporated herein and shall constitute part of this Agreement. Exhibit "E"
imposes certain obligations on the Non-Managing Member, and grants certain
rights to and imposes certain obligations upon Managing Member, in connection
with the Existing Loan.
ARTICLE III CONTRIBUTIONS AND LOANS BY MEMBERS.
Section 3. 1. Contributions By Members. The Members acknowledge and agree
that certain Capital Contributions have heretofore been made, or are being made
concurrently herewith, by the Members or their predecessors-in-interest, as set
forth in Exhibit "A" attached hereto. Except as expressly provided in this
Article III, no additional capital contributions shall be required under this
Agreement.
Section 3.2. Recoupment for Capital Contributions. No Member shall receive
any recoupment or payment on account of or with respect to the Capital
Contributions made by it (or by its predecessors-in-interest) except as and to
the extent expressly provided in this Agreement.
Section 3.3. Member Loans. Except as otherwise expressly provided under
this Agreement (including the provisions of Exhibit "E" attached hereto), either
Member making a loan to the Company shall be entitled to interest thereon at the
"APPLICABLE RATE," and the same, together with interest as aforesaid, shall be
repaid before any distribution shall be made under Article IV hereof. However,
no such loan to the Company shall be made without the prior written consent of
the Managing Member. The "APPLICABLE RATE" shall be the lesser of (A) two
percentage points over the prime rate announced from time to time by The First
National Bank of Chicago during the period such loans shall be outstanding, and
(B) the maximum interest that may be charged by such Member on such loans under
any applicable usury law.
Section 3.4. Managing Member's Right to Require Addition Capital
Contributions for Capital Expenditures. Notwithstanding Section 3.1 above, the
Managing Member may from time to time require the Members (subject to the right
of a Member to make a "Non-Contribution Election" [as defined below]) to make
additional Capital Contributions for the purpose of making capital expenditures
deemed by the Managing Member to be in the best interest of the Company or the
Company Property. No such capital expenditure may be made which constitutes a
breach of the Managing Member's fiduciary duties to the Non-Managing Member or
which causes "Economic Injury" (as defined in Section 5.1). In addition, if the
proposed capital expenditure or related series of capital expenditures would
exceed $5,000,000, then such capital expenditure may be disputed by the
Non-Managing Member pursuant to the arbitration provisions of Sections 5.1B(l)
and 7.7 hereof
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<PAGE> 10
The Managing Member shall give the Non-Managing Member thirty (30) days'
notice of any required Capital Contribution under this Section 3.4, and (subject
to the right of a Member to make a "Non-Contribution Election" as defined
below) the Member shall contribute the required additional capital in proportion
to their respective Company Percentages.
Any Member (a "Non-Contributing Member") may elect not to make such capital
contribution as provided in this Section 3.4, in which case the other Member
(the "Contributing Member") shall either (a) contribute 100% (but not less than
100%) of the total capital required within thirty (30) days after the date of
the proposed contribution thereof, or (b) make no contribution whatsoever. Any
contribution made by the Contributing Member pursuant to clause (a) above shall
be hereinafter referred to as a "Discretionary Capital Contribution". A separate
"Memorandum Account" shall be maintained and reflected in the books of the
Company for each Member that makes a Discretionary Capital Contribution in
accordance with the provisions of this Section 3.4. The positive balance in any
Members' Memorandum Account shall be increased from time to time as if the same
bears interest per annum equal to the sum of (i) the yield on the one-year U.S.
Treasury issue, plus (ii) one percent (1%) (compounded annually if not paid), to
the extent the same is not repaid from time to time. Such positive balance in
any Member's Memorandum Account is referred to hereinafter as a "Positive
Memorandum Account Balance"). Neither Discretionary Capital Contributions nor a
Positive Memorandum Account Balance hereunder shall affect the Members'
respective Company Percentages. The Members' Positive Memorandum Account
Balances shall be repaid in accordance with Section 4.3 below.
Section 3.5. Certain Additional Capital Contributions. Section 3.6 and
Exhibit "E" attached hereto set forth certain additional provisions governing
additional Capital Contributions and are hereby incorporated by reference into
this Article III.
Section 3.6. Capital Contributions to Enable Refinancing, At the time of
formation of the Company, in anticipation of the refinancing of the Company
Property in the near future, the Managing Member shall contribute to the Company
as an additional Capital Contribution the amount of $15,110,840.00 in order to
retire the outstanding indebtedness under the Existing Loan. Such amount shall
be deposited in a bank account in the name of the Company and shall be used only
for the purpose of retiring such indebtedness at the time of initial
refinancing, and any withdrawals or transfers from such account shall require
the joint signatures of the Members. Any excess in such account after initial
refinancing shall promptly be distributed to the Members in accordance with
their respective Percentage Interests. The provisions of this Section 3.6 shall
not relieve any Members of any obligation it would otherwise have under this
Agreement to contribute the amounts needed to retire such indebtedness at the
time of the initial refinancing in excess of such $15,110,840.00. The Capital
Contribution by the Managing Member under this Section 3.6 shall not create a
Memorandum Account balance or otherwise create a priority of distribution.
ARTICLE IV DISTRIBUTIONS.
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Section 4.1. Distributions of Distributable Cash. Subject to the
provisions of Sections 3.4 and 4.3), Net Cash Receipts, Net Sale Proceeds and
Net Financing Proceeds (together "Distributable Cash") shall be distributed not
less frequently than once quarterly to the Members in accordance with their
respective Company Percentages.
Section 4.2. Distributions of Capital. Except as expressly provided in this
Agreement or as otherwise agreed by the Members, no Member shall be entitled to
withdraw capital or to receive distributions of or against capital without the
prior written consent of, and upon the terms and conditions agreed upon by, each
other Member.
Section 4.3. Positive Memorandum Account Balance Distributions.
A. One Positive Memorandum Account Balance' Subject to Section 4.3B below,
one-half (1/2) of all Distributable Cash shall first be distributed, in
preference and priority to any other distribution of Distributable Cash to a
Member having a Positive Memorandum Account Balance, until the Memorandum
Account of such Member shall no longer have a Positive Memorandum Account
Balance.
B. Two Positive Memorandum Account Balances. If at any time there shall
exist a Positive Memorandum Account Balance with respect to a Member, and the
other Member then makes a Discretionary Capital Contribution such that the
second Member would also have a Positive Memorandum Account Balance, then the
following clauses (1) through (3) shall apply, and the Positive Memorandum
Account Balances of all Members shall be deemed netted out in accordance
therewith. For purposes of the following, the Positive Memorandum Account
Balances shall be deemed netted out in accordance with clauses (1) through (3)
below immediately following creation of the Positive Memorandum Account Balance
for the second Member:
(1) First: The Positive Memorandum Account Balance for each Member
shall be multiplied by the Company Percentage of the other Member. The product
derived therefrom is hereinafter referred to as the "MEMORANDUM ACCOUNT
PRODUCT." The Member with the greater Memorandum Account Product, if any, is
hereinafter referred to as the "REMAINING MEMORANDUM ACCOUNT MEMBER," and the
Member with the lesser Memorandum Account Product, if any, is hereinafter
referred to as the "ELIMINATED MEMORANDUM ACCOUNT MEMBER." The positive
difference, if any, between the Members' respective Memorandum Account Products
is hereinafter referred to as the "REMAINING MEMORANDUM ACCOUNT BALANCE."
(2) Second: If, at any given time the Members' respective Memorandum
Account Products are equal, then each Member shall as of such time be deemed to
have a zero balance in its Memorandum Account.
(3) Third: If at any given time the Members' respective Memorandum
Account Products are not equal, then (a) the Remaining Memorandum Account Member
shall be deemed as of such time to have a Positive Memorandum Account Balance
equal to the quotient of the
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<PAGE> 12
Remaining Memorandum Account Balance divided by the Company Percentage of the
Eliminated Memorandum Account Member, and (b) the Eliminated Memorandum Account
Member shall be deemed as of such time to have a Memorandum Account balance of
zero. Thereafter, one-half (1/2) of all Distributable Cash shall first be
distributed, in preference and priority to any other distribution of
Distributable Cash, to the Member having a Positive Memorandum Account Balance,
until the Memorandum Account of such Member shall no longer have a Positive
Memorandum Account Balance.
Without limitation of the foregoing, the following examples illustrate
application of the formula set forth in Section 4.3B above:
Example #1
The Managing Member makes a Deficiency Contribution of $ 1,000,000, and the
Non-Managing Member immediately thereafter makes a Deficiency Contribution of
$500,000. The Managing Member therefore has a Positive Memorandum Account
Balance of $1,000,000, and the Non-Managing Member has a Positive Memorandum
Account Balance of $500,000. The Management Member's Memorandum Account Product
is therefore equal to $333,333.33 (i.e., $ 1,000,000 x 1/3), and the
Non-Managing Member's Memorandum Account Product is therefore also equal to
$333,333.33 (i.e., $500,000 x 2/3). Because the Members' respective Memorandum
Account Products are equal, each Member shall be deemed to have a zero balance
in its Memorandum Account as of such time.
Example #2
The Managing Member makes a Deficiency Contribution of $ 1,000,000, and the
Non-Managing Member immediately thereafter also makes a Deficiency Contribution
of $1,000,000. The Managing Member therefore has a Positive Memorandum Account
Balance of $1,000,000, and the Non-Managing Member also has a Positive
Memorandum Account Balance of $1,000,000. The Managing Member's Memorandum
Account Product is therefore equal to $333,333.33 (i.e., $ 1,000,000 x 1/3), and
the Non-Managing Member's Memorandum Account Product is therefore equal to
$666,666.66 (i.e., $1,000,000 x 2/3). The "Remaining Memorandum Account Balance"
is therefore $333,333.33 (i.e., the positive difference between $666,666.66 and
$333,333.33). The Non-Managing Member is the Member with the greater Memorandum
Account Product, and is therefore the "Remaining Memorandum Account Member." The
Managing Member is the Member with the lesser Memorandum Account Product and is
therefore the "Eliminated Memorandum Account Member." Thus, the Non-Managing
Member shall be deemed as of such time to have a Positive Memorandum Account
Balance equal to $500,000 (i.e., the Remaining Memorandum Account Balance of
$333,333.33, divided by 2/3) (the Company Percentage of the Eliminated
Memorandum Account Member]), and the Managing Member shall be deemed to have a
Memorandum Account balance of zero.
ARTICLE V POWERS. RIGHTS AND DUTIES OF MEMBERS.
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Section 5.1. Authority of Members.
A. Authority of Managing Member. Except as specifically otherwise provided
in this Agreement, Managing Member shall act as the managing member, and shall
have the full and sole power and authority to manage the operations and affairs
of the Company. Neither the Company nor the Managing Member shall appoint
managers or elect officers for the management of the Company.
B. Non-Unanimous Decisions, The Managing Member shall regularly consult
with the Non-Managing Member on all matters other than day-to-day operations,
including specifically the matters enumerated below in this Subsection 5. LB
("Non-Unanimous Decisions"), but no prior approval by the Non-Managing Member
of the Managing Member's proposed action with respect to any such matter shall
be required, except in the case of a matter hereinafter designated as an
"Arbitration Non-Unanimous Decision." However, in the event of a dispute as to
any Arbitration Non-Unanimous Decision, the sole remedy of the parties shall be
to invoke the arbitration provisions of Section 7.7 of this Agreement, and
provided the Non-Managing Member has received a written statement of the
proposed action and the Non-Managing Member fails to invoke arbitration as
provided in Section 7.7 hereof, the Managing Member may proceed without the
agreement of the Non-Managing Member. Except with the consent of the
Non-Managing Member in each instance, the Managing Member shall not exercise its
authority under this Subsection 5.1.B so as to cause Economic Injury to the
Non-Managing Member or breach the Managing Member's fiduciary duties.
(1) Any capital expenditure or any related series of capital
expenditures, or act which would commit the Company to make any capital
expenditure (or any related series of capital expenditures), of $5,000,000
or more (an "Extraordinary Capital Expenditure"), regardless of whether or
not the same shall be included in an approved annual Budget. Any
Extraordinary Capital Expenditure shall be funded from contributions by the
Members in accordance with, and subject to the provisions of, Section 3.4
above. The making of an Extraordinary Capital Expenditure shall be an
Arbitration Non-Unanimous Decision.
(2) The acquisition of any additional real property and the terms of
such acquisition.
(3) The engagement and retention of the leasing agents or other
equivalent level personnel.
(4) The termination of the Purchased Services Agreement other than in
accordance with the terms of the Purchased Services Agreement.
(5) The design of any construction at the Business Property, including
product types, architectural and engineering drawings, and plans and
specifications.
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<PAGE> 14
(6) Any concessions by the Company or restrictions on the Company or
the Business Property in connection with obtaining zoning, variances, map
approval. entitlements, permits or other governmental approvals.
(7) Any deviation of greater than ten percent (1O%) from the expense
portion of the applicable Budget other than in relation to debt service,
taxes or utilities shall constitute an Arbitration Non-Unanimous Decision
unless the Managing Member shall effect such deviation through an amendment
to the Budget under the collaborative process set forth in Section 5.10
of this Agreement.
(8) Lease forms and leasing parameters for the office, retail and
Dartmouth Garage components of the Business Property for each calendar year
(once approved in writing by the Members or the Managing Member, herein
called the "Approved Lease Forms" and the "Approved Leasing Parameters" for
the year in question). However, the adoption of leasing parameters by the
Managing Member having a net differential greater than $5,000,000 with
respect to leasing parameters proposed by the Non-Managing Member shall
constitute an Arbitration Non-Unanimous Decision.
(9) Any agreement with a tenant or prospective tenant providing for
gross rents of $5,000,000 or more over the entire term of the lease,
including any possible extension or option periods thereunder but excluding
extension or option periods of office leases which provide for rental at
the higher of fair market rent or the rent in effect prior to such
extension or option periods. The decision to enter into such an agreement
shall be an Arbitration Non-Unanimous Decision. At the request of either
Member, the Company will enter into a lease with a third party with respect
to the Dartmouth Garage and other garage facilities of the Company (which
third party may be the present operator of the garage facilities) for a
term of one year or more under which the payments by the tenant would
constitute "rents from real property" within the meaning of Section 856(d)
of the Internal Revenue Code. Prior to the expiration of such lease, a new
lease shall be entered into by the Company, at the request of either
Member, such that the Dartmouth Garage and other garage facilities of the
Company remain at all times subject to leases under which the payments by
the tenant constitute "rents from real property." Notwithstanding the
foregoing, any such lease shall (I) be on economic terms which are no less
favorable to the Company, the Manager, or the Purchased Services Provider,
than the parking/garage agreement(s) in effect at the time of such request,
(ii) provide for a rental which is based on the gross revenue from the
Garage and/or garage facilities, and (iii) not alter the Company's
responsibilities with respect to the upkeep and real estate asset
management (as opposed to day to day operational management) of the Garage
and/or garage facilities.
(10) The institution, prosecution, defense, dismissal or settlement of
any litigation, arbitration or mediation (other than with a Member)
involving the Company or its assets. Any such matter which involves an
expense to or actual or potential liability of the Company in excess of
$5,000,000 shall constitute an Arbitration Non-Unanimous Decision.
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<PAGE> 15
C. Unanimous Approval Major Decisions. The following matters in this
Subsection 5.1.C shall require the prior written approval of both the Managing
Member and the Non-Managing Member before action binding on the Company may be
taken by the Managing Member with respect to such matter.
(1) Any sale or other transfer, by the Company involving all or any
significant portion of the Company Property, and the terms of and parties
to the documentation relating to the same.
(2) Any financing or refinancing including any modification or
amendment of the terms of the Existing Loan and the terms relating to the
same by the Company involving all or any portion of the Company Property,
and the terms of and parties to the documentation relating to the same. The
Members acknowledge and agree that the Company (a) shall pay monthly
installments of interest hereafter coming due with respect to the Existing
Loan in an amount sufficient to repay interest calculated at the "CONTRACT
RATE" in lieu of payment of interest calculated at the "PAY RATE" (as such
terms are defined in the Existing Loan Documents), and (b) may continue to
negotiate with Existing Lender concerning elimination of provisions in the
Existing Loan Documents relating to (I) the "LOAN ESCROW ACCOUNT" (as
defined in Exhibit "E" attached hereto), (ii) subordination of compensation
under the Management Agreement and the Purchased Services Agreement, and
(iii) the "CONTINGENT EQUITY" rights (as described in the Equity Payment
Agreement), as the same are more particularly described in Exhibit "E," and
that upon refinancing of the Existing Loan, the principal amount of the new
mortgage loan shall be $195,000,000 (any balance due with respect to the
Existing Loan above such amount, to the extent in excess of the
$15,110,840.00 being contributed by the Managing Member pursuant to Section
3.6 hereof, shall be funded by the Members by capital contributions in
proportion to their Company Percentages).
(3) The selection and terms of engagement of any entity as the manager
or as a major provider of consulting or similar services to those provided
under the Purchased Services Agreement or the Management Agreement,
including a submanager but excluding leasing agents, provided that the
Non-Managing Member shall not unreasonably withhold or delay its consent to
such selection and engagement by the Managing Member following the
termination of the Management Agreement or of the Purchased Services
Agreement. Notwithstanding the foregoing, Manager has heretofore been
engaged as the manager of the Business Property pursuant to the Management
Agreement, and Purchased Services Provider has heretofore been engaged to
provide financial, consulting and operational services to the Business
Property pursuant to the Purchased Services Agreement. Notwithstanding the
foregoing, in the event that an "Overseas Exit" (as defined in the
Purchased Services Agreement) shall occur and the Purchased Services
Agreement is terminated, the Managing Member shall propose not less than 5
alternative qualified management companies to provide the services
described in the Purchased Services Agreement, and the Non-Managing Member
shall have the right to select one of the
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5 as the successor provider. Anything herein to the contrary
notwithstanding, (I) in the event the Purchased Services Agreement is
terminated pursuant to Section 2.2.4 of the Purchased Services Agreement
(i.e. the Section thereof with respect to the ownership by the "JMB Group"
of the "Required Minimum Number" of "Adjusted Shares", as such terms are
defined in the Purchased Services Agreement), any cost savings from any
reduction in fees or sums paid to the provider's replacement for the first
18 months of such replacement (or such portion thereof as JMB or an
Affiliate of JMB remains a Member), shall be distributed entirely to JMB
(without reducing any other amounts distributable to JMB), and (ii) in the
event the Purchased Services Agreement is terminated for any reason, and
the same is replaced with an agreement at lower fees or other sums,
Overseas shall cause the Management Agreement to be amended to provide for
a corresponding reduction in the fees and sums payable by the Company. In
addition, following an Overseas Exit, the successor to Overseas as Managing
Member shall not, without the prior written consent of the Non-Managing
Member, become (directly or indirectly) the Manager under the Management
Agreement and the Purchased Services Agreement. If the Management Agreement
shall be terminated for any reason, the Purchased Services Provider shall
become the Manager under the Management Agreement unless at the time of
such termination Purchased Services Provider shall be in default under the
Purchased Services Agreement.
(4) The acquisition of any additional real property unless both the
following criteria are met: (i) the property is either functionally or
geographically related to the Business Property, and (ii) the purchase
price thereof is $1 million or less.
(5) Any concessions by the Company or restrictions on the Company or
the Business Property, in connection with obtaining zoning, variances, map
approval, entitlements, permits or other governmental approvals where any
of the foregoing relates to a major portion of the Business Property.
(6) Any transaction with a party related to or affiliated with a
Member or any compensation or reimbursement to, or other transaction with,
a Member or any party related to or affiliated with a Member except payment
or compensation under or pursuant to within the Management Agreement or
other Purchased Services Agreement; provided that the Non-Managing Member
shall not unreasonably withhold or delay its consent to such a transaction
if it is upon economic terms customary in similar transactions with
non-related or nonaffiliated parties and is not otherwise a Unanimous
Approval Major Decision. Similarly, if the Non-Managing Member proposes
that the Company engage a party related to or affiliated with the
Non-Managing Member, the Managing Member shall not reject such proposal
solely on the grounds of such relationship or affiliation.
(7) Permit the Company to merge or consolidate with any other entity.
(8) Make, execute or deliver on behalf of the Company any assignment
for the benefit of creditors or any guarantee, indemnity bond or surety
bond, other than
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reasonable and customary bonds and assurances to governmental agencies in
connection with the obtaining of entitlements and other governmental
approvals or to lenders in connection with development or construction
financing; or obligate the Company or any Member as a surety, guarantor or
accommodation party to any obligation.
(9) File any petition, or consent to the appointment of a trustee or
receiver or any judgment or order, under the federal bankruptcy laws.
(10) Any transaction or action which could not reasonably be construed
by the Managing Member as being within the scope of the purposes of the
Company as set forth in Section 1.4.
(11) Any revaluation of the Company Property and increase or decrease
in the Book Capital Account of the Members pursuant to Section 1.2C of
Exhibit "C" attached hereto.
As used herein, "ECONOMIC INJURY" means any action which, in the judgment
of a reasonable business person, with knowledge of the then available facts,
would create a reasonable likelihood that the action will deprive the Company of
an otherwise reasonably expected material economic benefit or inflict an
otherwise reasonably avoidable material economic injury upon the Company or any
Member's economic interest in the Company.
In the event that either Member makes a proposal as to a Unanimous Approval
Major Decision, and the other Member fails to agree thereto, such proposal shall
not be implemented, and there shall be no means (through arbitration or
otherwise) for such proposal to be implemented. Without limitation of the
foregoing or the provisions of Sub-Section 5.1 C(1) above, the Members
acknowledge that there shall be no means (through arbitration or otherwise) for
the implementation of any proposal by either Member to sell the Business
Property if any other Member fails to agree thereto (each Member recognizing
that its sole means of realizing upon the value of its interest in the Company
is through a sale of its interest pursuant to the provisions of Article VI
below).
D. Prohibited Acts. No Member shall have any authority to:
(1) Amend this Agreement, except as expressly permitted herein.
(2) Extend the term of the Company.
(3) Do any act in contravention of this Agreement or which would make
it impossible to carry on the business of the Company.
(4) Except as a result of the liquidation of the Company, possess any
Company Property or assign the rights of the Company in specific Company
Property for other than a Company purpose.
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<PAGE> 18
(5) Admit a person or entity as a Member except as expressly
provided in this Agreement.
(6) Lend funds belonging to the Company or any Member to any Member
or third party or extend to any person, firm or corporation, credit on
behalf of the company, except for extensions of credit to purchasers of
parcels of the Project in the ordinary course of business in accordance
with the sale terms approved by the Managing Member in accordance with
subsection B above.
E. Certain Affiliate Transactions. The terms of the Management Agreement
and the Purchased Services Agreement are hereby approved.
Section 5.2 Certain Obligations of Managing Member.
A. Generally. Managing Member shall at all times act in a fiduciary
capacity in exercising its power and authority, shall fully and faithfully
discharge its obligations and responsibilities, and shall devote such time and
attention to Company affairs as may be reasonably necessary for the proper
management and supervision of the Company's business and the discharge of its
duties under this Agreement. Managing Member shall diligently and continuously
pursue the operation of the Business Property, and shall make its personnel or
the personnel of its affiliates available to the Company to the extent necessary
in order that its obligations may be adequately discharged.
B. Administration of Company. Managing Member shall cause to be kept proper
and complete records and books of account in which shall be entered fully and
accurately all transactions and other matters relating to the Company's business
as are usually entered into such records and books of account kept for business
of a like character. The Company's records and books shall be kept on a cash
basis, except as the Managing Member may otherwise determine. At all times, such
books and records shall be available at the Company's principal place of
business for inspection, examination and photocopying by any other Member, or
the duly authorized representative thereof, during reasonable business hours.
Any expense for such inspection shall be borne by the respective Member causing
the inspection.
C. Reports. Managing Member shall provide the Non-Managing Member with
reports as follows:
(a) An annual report of all income and all expenses within 120 days
of the end of the calendar year, audited by an independent nationally recognized
"Big Six" accounting firm reasonably satisfactory to the Non-Managing Member.
(b) Monthly operating statements and reports of financial condition
of the Company for each calendar month submitted to the Members within 15 days
of the end of each such month.
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<PAGE> 19
(c) Such information as is necessary for the preparation by each
Member of its federal, state and local income tax returns.
(d) Such other reports as may be reasonably requested by the
Non-Managing Member.
D. Tax Matters. As further set forth in Exhibit "C" attached hereto, the
Managing Member shall be the "Tax Matters Partner" and shall be responsible for
preparing the federal and state tax returns of the Company.
E. Notice of Direct Lease. Managing Member shall, within one hundred eighty
(180) days after the date of this Agreement, cause to be delivered to Urban and
MTA a written notice of the Company's and Nominee's election to convert the
Central Area Sublease to a direct lease with MTA (upon the terms of the Central
Area Sublease), in accordance with Section 6 of the Direct Lease Agreement.
Section 5.3. Other Activities. Except as otherwise provided in this
Agreement or in any agreement among the Members: (1) each Member recognizes that
each other Member has an interest in investing in, developing, constructing,
operating, transferring, leasing and otherwise using real property and interests
therein for profit, and engaging in any and all activities related or incidental
thereto and that each will make other investments consistent with such
interests; (2) neither the Company nor any Member shall have any right by virtue
of this Agreement or the limited liability company Membership relationship
created hereby in or to any other ventures or activities in which any Member is
involved or to the income or proceeds derived therefrom; (3) the pursuit of
other ventures and activities by each Member, even if competitive with the
business of the Company, is hereby consented to by such other Member and shall
not be deemed wrongful or improper; (4) no Member and no affiliate of a Member
shall be obligated to present any particular investment opportunity to the
Company, even if such opportunity is of a character which, if presented to the
Company, could be taken by the Company; and (5) each Member and each affiliate
of a Member shall have the right to take for its own account, or to recommend to
others, any such particular investment opportunity.
Section 5.4. Liability of Members. Subject to the provisions of any other
agreement to which the Members are parties, and except for the obligations to a
Member or Members of the Company imposed under such other agreement, no Member
shall be liable, responsible or accountable in damages or otherwise to the
Company or the Members for any action taken or failure to act by such Member on
behalf of the Company within the scope of the authority conferred on it by this
Agreement unless such action or omission constituted a material breach or
material default under this Agreement, a breach of fiduciary duty, gross
negligence or willful misconduct. Each Member shall act as a fiduciary with
respect to the other Member in all matters relating to Company.
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Section 5.5. Indemnity of Members. The Company shall indemnify, defend and
hold each Member harmless from and against any loss, expense, damage or injury
suffered or sustained by it by reason of any acts, omissions or alleged acts or
omissions by such Member on behalf of the Company within the scope of authority
conferred on it by this Agreement, including, any judgment. award, settlement,
reasonable attorneys' fees and other costs and expenses incurred in connection
with the defense of any actual or threatened action, proceeding or claim;
provided that the acts or omissions or alleged acts or omissions upon which such
actual or threatened action, proceeding or claim is based were in good faith and
did not constitute a breach or default under this Agreement, a breach of
fiduciary duty, gross negligence or willful misconduct.
Section 5.6. Compensation. No Member shall be entitled to any payment or
compensation for the performance of its obligations under this Agreement except
as expressly provided in this Agreement, the Management Agreement and the
Purchased Services Agreement.
Section 5.7. Company Not Manager Managed. Notwithstanding the foregoing,
Managing Member shall not constitute a "manager" within the meaning of Section
18-1 01 of the Act.
Section 5.8. Property Supervisors. The Members agree that Managing Member
shall cause Manager to employ for the duration of the term of the Management
Agreement the following four (4) individuals to be selected by the "Personnel
Committee' (as defined below): (1) the first individual (the "PROPERTY
SUPERVISOR") shall be responsible for general supervision of all property
management and leasing activities at the Business Property, including
supervision of the performance by Purchased Services Provider of its obligations
under the Purchased Services Agreement; (2) the second individual (the "RETAIL
SUPERVISOR") shall be responsible, under the Property Supervisor, for
supervision of retail property management and leasing activities at the Business
Property, including supervision of the performance by Purchased Services
Provider of its obligations under the Purchased Services Agreement with respect
to the leasing of the retail portion of the Business Property; (3) the third
individual (the "OFFICE SUPERVISOR") shall be responsible, under the Property
Supervisor, for supervision of office property management and leasing activities
at the Business Property; and (4) the fourth individual (the "ACCOUNTING
SUPERVISOR") shall be responsible, under the Property Supervisor, for the
supervision of all accounting services to the Company, including supervision of
the performance by Purchased Services Provider of its obligations under the
Purchased Services Agreement with respect to the accounting services to be
performed by it under the Purchased Services Agreement. The Property Supervisor,
the Retail Supervisor, the Office Supervisor and the Accounting Supervisor are
hereinafter collectively referred to as the "SUPERVISORS". The Personnel
Committee shall have sole authority and responsibility for making all decisions
concerning the hiring, termination, compensation, and other terms of employment
of the Supervisors, and Managing Member shall cause Manager to implement the
decisions of the Personnel Committee regarding the Supervisors. Pursuant to the
Management Agreement, Manager shall be solely responsible for supervision and
control of the Supervisors, and shall be responsible for compliance with all
laws and regulations affecting employment of the Supervisors, including the
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provisions of any benefits or compensation required by statute or future
contract in connection with the Supervisors.
Section 5.9. Personnel Committee. A personnel committee shall be
established within the Company (the "PERSONNEL COMMITTEE"), which shall be
comprised initially of two (2) individual members designated by the Managing
Member, and one (1) individual member designated by the Non-Managing Member and
such Personnel Committee shall have sole authority and responsibility for making
all decisions concerning the hiring, termination, compensation, and other terms
of employment of the Supervisors. Each of the Non-Managing Member and the
Managing Member shall have the right from time to time to replace any member of
the Personnel Committee designated by it as provided above as it deems
appropriate by written notice to the other party. Managing Member hereby
designates each of Bruce M. Barone and Michael Molletta as its initial members
of the Personnel Committee, and Non-Managing Member hereby appoints H. Rigel
Barber as its initial member of the Personnel Committee. In no event shall any
member of the Personnel Committee have any personal liability in. connection
with its membership and activities of the Personnel Committee. The Personnel
Committee shall have exclusive authority for ensuring compliance with all laws
and regulations affecting employment of all employees of the Company, including
the provisions of Any benefits or compensation required by statute or future
contract. The Personnel Committee shall meet telephonically or in person at
least once each calendar year in order to discharge its duties (or within ten
(10) days after the written request of any member of the Personnel Committee).
Subject to the last sentence of this Section, all actions and decisions of the
Personnel Committee shall require the approval of at least the majority of the
members of the Personnel Committee, and each Member shall cause each member of
the Personnel Committee designated by it to act with reasonable care in
connection its activities in connection with the Personnel Committee (including
any proposals, approvals or disapprovals made by such member in connection with
the Personnel Committee). The Personnel Committee has determined that the
initial Supervisors to be hired by Manager on the date hereof are the following
individuals (the "INITIAL SUPERVISORS"): (1) Paul C. Grant shall be the Property
Supervisor; (2) Robert Prendergast shall be the Retail Supervisor; (3) Peter J.
Dominski shall be the Office Supervisor; and (4) an individual to be designated
by the Personnel Committee within thirty (30) days after the date hereof shall
be the Accounting Supervisor. The termination and any changes to the
compensation and other terms of employment of any of the Initial Supervisors
shall require the unanimous approval of the members of the Personnel Committee
and the member designated by Non-Managing Member may act as he deems best, in
his sole and absolute discretion.
Section 5.10. Annual Budget. The Manager shall, within ninety (90) days
prior to the commencement of each calendar year, submit to each of the Members a
proposed annual budget with respect to the operations of the Company and the
Business Property for the upcoming calendar year. The final budget for such
calendar year (each such budget being referred to herein as a "BUDGET") shall be
determined by Managing Member only after a collaborative and advisory process
involving both the Managing Member and the Non-Managing Member. and shall
contain a comprehensive projection of all proposed cash expenditures. capital
expenditures and Company
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<PAGE> 22
reserves; provided that, the Managing Member shall not include in any Budget
reserves or expenditures that, in nature or amount, would constitute a breach of
the Managing Member's fiduciary duties to the Non-Managing Member or would
result in an Economic Injury to the Non-Managing Member.
ARTICLE VI TRANSFER OF COMPANY INTERESTS.
Section 6.1. Restrictions on Transfer.
A. Except as otherwise expressly provided in this Section 6. 1, no sale,
assignment, transfer, encumbrance or hypothecation shall be made by a Member of
the whole or any part of its Company interest (including its interest in the
capital or profits of the Company) without the prior written consent of the
other Member.
B. No sale, assignment, transfer, encumbrance, hypothecation or issuance in
violation of the provisions hereof shall be valid or effective for any purpose,
and no consent to one or more of the same shall be deemed consent to any other
of the same.
Section 6.2. Effect of Assignment: Documents. In the event of any sale,
assignment or transfer permitted hereunder, the Company shall not be dissolved
or wound up but instead shall continue as before, with, however, the addition or
substitution of such new Member. No such sale, assignment or transfer shall
relieve the assignor from any of its obligations under this Agreement without
the prior written consent of all Members (which consent shall not be
unreasonably withheld as to obligations assumed by an assignee provided, among
other matters, the assignment is permitted hereunder and the Managing Member are
reasonably satisfied that the assignee is sufficiently creditworthy to timely
satisfy such obligation). Notwithstanding the foregoing, as a condition to any
sale or assignment by a Member, the transferee or assignee must execute and
deliver to the other Member an assumption (in form reasonably satisfactory to
all Members) of all the obligations of the assignee under this Agreement arising
from and after the date of such assignment.
Section 6.3. Permitted Assignments. Notwithstanding the provisions of
Section 6.1 hereof, either Member may, with the consent of the other Member
(such consent not to be unreasonably withheld or delayed), assign or transfer in
whole (but not in part) its Company interest (including, but not limited to, its
interest in the capital or profits of the Company), at any time to an Affiliate
of a Member (and in the event of such assignment, the transferor shall remain
liable for the obligations and liabilities hereunder in the same manner and to
the same extent as if such assignment had not been made). Overseas hereby
consents to the transfer of JMB's interest to Urban Shopping Centers, L.P. or to
a limited partnership of which the sole general partner is and shall remain
Urban Shopping Centers, Inc. (or its wholly owned subsidiary) and the sole
limited partner in which is and shall remain Urban Shopping Centers, L.P. In
addition. either Member may assign or transfer its Company Membership interest
in whole (but not in part) to an entity which is not an Affiliate of such
Member, provided all of the following conditions are met: (i) the non-
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<PAGE> 23
transferring Member must have approved of the transferee. (ii) the transferor
must have complied with the provisions of Section 6.4 below (the right of first
refusal therein set forth), (iii) the purchase price payable for the interest
must be payable entirely in cash or in cash and promissory notes which are not
secured by such interest, (iv) any consent or approval required under any loan
documents to which the Company is a party or to which the Company Property is
subject has been obtained at the sole cost and expense of the transferring
Member, and (v) the transferee must be of good business reputation and
character.. Anything herein to the contrary notwithstanding, no transfer by a
Member (whether direct or indirect) shall be effective if it would or may cause
the Company to be treated as an association taxable as a corporation, or if such
transfer is effected through an "established securities market" or a "secondary
market (or the substantial equivalent thereof)," within the meaning of Section
7704 of the Code.
Section 6.4. Right of First Refusal on Sale of Company Interests. Before
either Member (the selling member herein called the "Selling Member") actually
concludes a sale of its Company interest permitted hereunder to a person or
entity other than an Affiliate of the Selling Member, and after the requirements
of Section 6.3 have been satisfied, the Selling Member shall give notice (the
"SALE NOTICE") to the other Member (the "NON-SELLING MEMBER") setting forth the
identity of the proposed purchaser, the purchase price and the terms of payment
of the proposed sale. The Non-Selling Member will have 30 days after the giving
of such notice to elect, by giving written notice (the "PURCHASE NOTICE") to the
Selling Member, to acquire the Selling Member's interest in the Company for the
purchase price and terms therein specified in the Sale Notice, and 90 days after
the making of such election to close such sale. If such election shall not be
made, then the Selling Member may conclude a sale to the proposed purchaser at
any time or times within 180 days after the giving of the Sale Notice for a
purchase price and on terms which are at least as favorable to the Selling
Member as those contained in the Sale Notice; but if a sale is not consummated
within such period, then the rights of the Non-Selling Member to notice and
purchase as aforesaid shall continue as to any new sale. If, on the other hand,
the Non-Selling Member make such election to acquire such interest from the
Selling Member but fails to consummate the purchase, then without limitation on
the rights and remedies of the Selling Member, the rights of such Non-Selling
Member under this Section 6.4 shall be permanently lost.
Section 6.5 Withdrawal. Except as set forth in this Agreement, neither
Member may resign, retire or otherwise withdraw from the Company.
ARTICLE VII CERTAIN REMEDIES.
Section 7.1 [Intentionally Omitted]
Section 7.2. No Partition. Each Member hereby irrevocably waives any and
all rights that it may have to maintain any action for partition of any of the
Company Property.
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<PAGE> 24
Section 7.3. Litigation Without Termination. Either Member shall be
entitled to maintain, on its own behalf or on behalf of the Company, any action
or proceeding against the other Member or the Company (including, without
limitation, any action for damages, specific performance or declaratory relief)
for or by reason of breach by such party of this Agreement or any other
agreement entered into in connection with the same, notwithstanding the fact
that any or all of the parties to such proceeding may then be Members in the
Company, and without dissolving the Company as a limited-liability company.
Section 7.4. Attorneys' Fees. If the Company or any Member obtains a
judgment against any other Member by reason of breach of this Agreement or
failure to comply with the provisions hereof, a reasonable attorneys' fee plus
other costs and expenses as fixed by the court shall be included in such
judgment.
Section 7.5. Cumulative Remedies. Except for arbitration as provided in
Section 7.7 (which shall permit the judicial enforcement of any decision by
arbitration under Section 7.7), no remedy conferred upon the Company or any
Member in this Agreement is intended to be exclusive of any other remedy herein
or by law provided or permitted, but each shall be cumulative and shall be in
addition to every other remedy given hereunder or now or hereafter existing at
law, in equity or by statute (subject, however, to the limitations expressly
herein set forth).
Section 7.6. No Waiver. No waiver by a Member or the Company of any breach
of this Agreement shall be deemed to be a waiver of any other breach of any kind
or nature, and no acceptance of payment or performance by a Member or the
Company after any such breach shall be deemed to be a waiver of any breach of
this Agreement, whether or not such Member or the Company knows of such breach
at the time it accepts such payment or performance. No failure or delay on the
part of a Member or the Company to exercise any right it may have shall prevent
the exercise thereof by such Member or the Company at any time such other may
continue to be so in default, and no such failure or delay shall operate as a
waiver of any default.
Section 7.7. Arbitration.
ARBITRATION OF DISPUTES
A. SUBJECT TO THE PROVISIONS OF THIS SECTION 7.7, ANY DISPUTE AS TO AN
ARBITRATION NON-UNANIMOUS DECISION SHALL BE RESOLVED SOLELY BY ARBITRATION IN
BOSTON, MASSACHUSETTS, IN ACCORDANCE WITH THE FOLLOWING:
(1) A DISPUTE AS TO AN ARBITRATION NON-UNANIMOUS DECISION FOR PURPOSES
OF THIS SECTION 7.7 SHALL ONLY BE DEEMED TO OCCUR IF (A) THE NON-MANAGING MEMBER
RECEIVES A WRITTEN STATEMENT FROM THE MANAGING MEMBER OF A PROPOSED DECISION OR
ACTION AND THE NON-MANAGING MEMBER GIVES WRITTEN NOTICE TO THE MANAGING MEMBER
OF A
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<PAGE> 25
DIFFERENT OR CONTRARY POSITION AND IN SUCH NOTICE DESIGNATES SUCH POSITION AS AN
"ARBITRATION TRIGGER" OR (13) IF EITHER MEMBER MAKES A WRITTEN PROPOSAL TO THE
OTHER AND THE OTHER MEMBER GIVES WRITTEN NOTICE TO THE FIRST MEMBER OF A
COUNTER-PROPOSAL AND DESIGNATES SUCH COUNTER-PROPOSAL AS AN "ARBITRATION
TRIGGER." IN THE EVENT OF SUCH A DISPUTE, EITHER MEMBER MAY (BUT IN ALL EVENTS
IN ORDER TO BRING THE DISPUTE UNDER ARBITRATION, ONE OF THE MEMBERS MUST) CLAIM
ARBITRATION BY NOTICE TO THE OTHER WITHIN 15 DAYS AFTER THE GIVING OF A NOTICE
DESIGNATING AN ARBITRATION TRIGGER. THE MANAGING MEMBER SHALL NOT IMPLEMENT AN
ARBITRATION NON-UNANIMOUS DECISION UNLESS AT LEAST 15 DAYS (60 DAYS IN THE CASE
OF A PROPOSED CAPITAL EXPENDITURE) HAVE EXPIRED AFTER NON-MANAGING MEMBER'S
RECEIPT OF THE MANAGING MEMBER'S WRITTEN PROPOSAL WITHOUT THE DELIVERY TO
MANAGING MEMBER OF AN ARBITRATION TRIGGER NOTICE, OR IF SUCH AN ARBITRATION
TRIGGER NOTICE IS SO DELIVERED, FOR AN ADDITIONAL PERIOD OF 15 DAYS WITHOUT
DELIVERY TO MANAGING MEMBER OF A CLAIM OF ARBITRATION. IF ARBITRATION IS TIMELY
CLAIMED, THE MANAGING MEMBER SHALL NOT IMPLEMENT ITS PROPOSAL UNTIL THE DECISION
OF THE ARBITRATOR IS RENDERED, AND THEN SHALL DO SO IN ACCORDANCE WITH SUCH
DECISION. IF NEITHER PARTY MAKES SUCH CLAIM IN TIMELY FASHION, MANAGING MEMBER
SHALL BE FREE TO ACT AS IT HAS PROPOSED TO DO.
(2) THE PARTY CLAIMING ARBITRATION SHALL GIVE WRITTEN NOTICE OF THAT
FACT TO THE OTHER, ACCOMPANIED BY A DESIGNATION OF AN ARBITRATOR; IF THE OTHER
PARTY FAILS TO DESIGNATE ANOTHER ARBITRATOR BY WRITTEN NOTICE TO THE FIRST PARTY
WITHIN THE TIME PERIOD DESCRIBED BELOW, THE ARBITRATOR SHALL BE THE PERSON
DESIGNATED BY THE FIRST PARTY; IF THE OTHER PARTY DESIGNATES ANOTHER ARBITRATOR
WITHIN SUCH PERIOD, THEN THE TWO ARBITRATORS SO DESIGNATED SHALL SELECT A THIRD
ARBITRATOR AS SOON AS PRACTICABLE THEREAFTER, AND THE ARBITRATION SHALL BE
CONDUCTED BY THE THIRD ARBITRATOR. FOR PURPOSES OF THE PRECEDING SENTENCE, THE
REQUIRED TIME PERIODS SHALL EACH BE 15 DAYS AFTER THE RESPECTIVE DESIGNATION.
(3) THE MEMBERS AND THE ARBITRATORS SHALL USE THEIR MUTUAL DILIGENT
EFFORTS TO CAUSE THE ARBITRATION TO BE CONDUCTED AND A DECISION RENDERED WITHIN
60 DAYS THEREAFTER.
(4) THE ARBITRATOR SHALL CONDUCT THE ARBITRATION GENERALLY IN
ACCORDANCE WITH THE RULES OF THE AMERICAN ARBITRATION ASSOCIATION, WITH SUCH
MODIFICATIONS THEREOF AS THE ARBITRATOR MAY DEEM APPROPRIATE.
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<PAGE> 26
(5) THE ARBITRATOR MAY RETAIN COUNSEL (UNRELATED TO ANY MEMBER) TO
ADVISE THEM AS TO THE INTERPRETATION OF THE COMPANY AGREEMENT OR OTHER LEGAL
MATTERS, THE COST OF WHICH SHALL BE A COST OF THE ARBITRATION.
(6) THE ARBITRATION SHALL BE ENTITLED TO REASONABLE COMPENSATION AND
REIMBURSEMENT OF EXPENSES AS MUTUALLY AGREED WITH THE MEMBERS, OR IF THEY ARE
UNABLE TO AGREE THEN AS REASONABLY DETERMINED BY THE ARBITRATOR.
(7) THE COMPENSATION OF THE ARBITRATOR AND OTHER COSTS OF THE
ARBITRATION SHALL BE BORNE BY THE MEMBER WHOSE PROPOSAL OR POSITION IS NOT
SELECTED AS PROVIDED IN SUBSECTION 7.7B BELOW.
(8) THE AWARD AND ALL OTHER DECISIONS OF THE ARBITRATOR SHALL BE FINAL
AND BINDING UPON THE MEMBERS AND THE COMPANY, AND A JUDGMENT MAY BE RENDERED
THEREON IN ANY COURT OF RECORD, EXCEPT THAT ANY MEMBER MAY CONTEST AND OBTAIN
JUDICIAL REVIEW OF THE REASONABLENESS OF THE ARBITRATOR'S DETERMINATION OF
COMPENSATION PURSUANT TO CLAUSE (5) ABOVE.
B. THE ONLY ISSUE TO BE DETERMINED BY THE ARBITRATOR SHALL BE WHETHER,
BASED ON THEIR RELATIVE MERITS, THE PROPOSAL OR POSITION OF THE MANAGING MEMBER
OR THE PROPOSAL OR POSITION OF THE NON-MANAGING MEMBER IS TO BE SELECTED, AND
THE ARBITRATOR SHALL CHOOSE BETWEEN THE TWO PROPOSALS OR POSITIONS WITHOUT
ALTERATION OR COMPROMISE OF THE CHOSEN PROPOSAL OR POSITION.
C. DISPUTES UNDER PROVISIONS OF THIS AGREEMENT OTHER THAN AS TO ARBITRATION
NON-UNANIMOUS DECISIONS SHALL NOT BE RESOLVED BY ARBITRATION UNLESS THE PARTIES
OTHERWISE AGREE IN WRITING IN THEIR SOLE AND ABSOLUTE DISCRETION, EXCEPT THAT
THE ARBITRATOR SHALL HAVE THE AUTHORITY TO DETERMINE ISSUES UNDER OTHER
PROVISIONS OF THIS AGREEMENT TO THE EXTENT NECESSARY TO ACHIEVE A DECISION.
ASSENT TO ARBITRATION PROVISION
NOTICE: BY INITIALING IN THE SPACE BELOW YOU ARE AGREEING TO HAVE ANY
DISPUTE ARISING OUT OF THE MATTERS INCLUDED IN THE "ARBITRATION OF DISPUTES"
PROVISION DECIDED BY NEUTRAL ARBITRATION AND YOU ARE GIVING UP ANY RIGHTS YOU
MIGHT POSSESS TO HAVE THE DISPUTE LITIGATED IN A COURT OR JURY TRIAL. BY
INITIALING IN THE SPACE BELOW YOU ARE GIVING UP YOUR JUDICIAL RIGHTS TO
DISCOVERY AND
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<PAGE> 27
APPEAL, UNLESS THOSE RIGHTS ARE SPECIFICALLY INCLUDED IN THE "ARBITRATION OF
DISPUTES" PROVISION. YOUR AGREEMENT TO THIS ARBITRATION PROVISION IS VOLUNTARY.
WE HAVE READ AND UNDERSTAND THE FOREGOING AND AGREE TO SUBMIT DISPUTES
ARISING OUT OF THE MATTERS INCLUDED IN THE "ARBITRATION OF DISPUTES" PROVISION
TO NEUTRAL ARBITRATION.
/s/ Bruce M. Barone /s/
------------------- ----------------
OVERSEAS JMB
ARTICLE VIII. DISSOLUTION OF THE COMPANY.
Section 8. 1. Events Giving Rise to Dissolution. No act, thing, occurrence,
event or circumstance shall cause or result in the dissolution of the Company,
except that, subject to the provisions of Section 8.2 hereof, the happening of
any one of the following events shall result in a dissolution of the Company
upon the occurrence thereof:
A. The Bankruptcy of a Member.
B. The sale of all of the real estate assets of the Company (provided,
however, that if a portion of the purchase price of such sale is evidenced by a
promissory note, the Company shall not be dissolved by reason of such sale so
long as the Company is the holder of such promissory note).
C. The unanimous agreement in writing by the Members to dissolve the
Company.
Notwithstanding anything in this Agreement or in the Act to the contrary,
neither the death, retirement, resignation, expulsion nor dissolution of a
Member, nor (subject to Section 8. 1 A above) any other event which terminates
the continued membership of any Member in this Company, shall result in the
dissolution of the Company, and the Company shall continue in existence
notwithstanding the occurrence thereof
Without limitation on the other provisions hereof, neither the assignment of all
or any part of a Member's interest in the Company permitted hereunder nor the
admission of a new member shall result in the dissolution of the Company. Except
as otherwise provided in this Agreement, each Member agrees that, without the
consent of the other Member, a Member may not withdraw from or cause a voluntary
dissolution of the Company.
Section 8.2. Purchase Options. In the event of the Bankruptcy of a Member
(such event being herein called the "DISSOLUTION EVENT" and such Member being
herein called the "DISSOLUTION MEMBER"), then the other Member shall have the
option, exercisable by written
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<PAGE> 28
notice (the "DISSOLUTION/PURCHASE ELECTION Notice") to the Dissolution Member
or its personal representative, successor or assign at any time within 2 1 0
days after it learns of the Dissolution Event, to purchase the Company interest
of the Dissolution Member (any such Member being herein collectively called the
"ELECTING MEMBER") on the terms hereinafter set forth (such option being herein
called the "COMPANY PURCHASE OPTION"). Nothing herein shall be deemed to require
any Member to exercise such Company Purchase Option.
In the event of the exercise of the Company Purchase Option, the
consideration for the purchase of the Dissolution Member's Company interest
shall be the amount (if any) that will produce for the Dissolution Member the
same amount in cash as it would have received if the Business Property owned by
the Company at the date on which the Dissolution Event occurs had been sold at
its then fair market value ("Fair Market Value"), after deducting all closing
costs (including attorneys' fees, title insurance costs, brokers' fees and
recordation costs) that would customarily be paid by the seller of properties
of, like kind and stature, and the Company had been dissolved and wound up
following such sale.
(1) The Fair Market Value of such Business Property shall be as agreed upon
by the Electing Member and the Dissolution Member, or if they fail to agree upon
such value within 45 days after the giving of the Dissolution/Purchase Election
Notice, then as determined by appraisal, in accordance with procedure set forth
in Exhibit "D." The electing Member may rescind its Dissolution/Purchase
Election Notice at any time up until the date which is 30 days after the Fair
Market Value of the Business Property has been determined.
(2) Any sum payable for the Dissolution Member's Company interest as
hereinabove determined must be paid in cash within 60 days after the
determination of the amount of the same as aforesaid. Concurrently with the
payment of such sum (or if no amount shall be payable for such interest, then
upon demand of the assignee), the assignor of such interest shall deliver or
cause to be delivered to such assignee such assignments of Company interest and
other instruments and documents confirming the assignment and transfer as such
assignee shall reasonably request. The acquisition of such Company interest as
aforesaid shall be deemed effective as of the date on which the Dissolution
Event occurred ("DISSOLUTION EVENT DATE"), and, accordingly, the assignee shall
be entitled to all profits and losses and distributions of Distributable Cash
for any period after the Dissolution Event Date.
(3) Each Electing Member may assign its rights under this Section 8.2 to
purchase the Dissolution Member's Company interest.
Section 8.3 [Intentionally Omitted]
Section 8.4. Dissolution Procedure.
A. In the event of the dissolution of the Company for any reason, the
Managing Member (or, if the Managing Member is Bankrupt or dissolved, then the
Non-Managing
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<PAGE> 29
Member) shall commence to wind up the affairs of the Company and to liquidate
its investments. The Member obligated to wind up the affairs of the Company as
aforesaid is herein called the "Winding-Up Member." The Members shall continue
to share profits, losses, gain or loss on sale or disposition, and
Distributable Cash during the period of liquidation in the same manner and
proportion as though the Company had not dissolved.
B. Following the payment of all debts and liabilities of the Company and
all expenses of liquidation, and subject to the right of the Winding-Up Member
to set up such cash reserves as and for so long as it may deem reasonably
necessary in good faith for any contingent or unforeseen liabilities or
obligations of the Company, the proceeds of the liquidation and any other funds
of the Company shall be distributed in accordance with the positive balance in
each Member's "Book Capital Account" (as defined in Exhibit "C" hereto) and, in
the event of any excess proceeds, in accordance with the Member's respective
Company Percentages after deducting from the distributive share of a Member any
sum such Member owes the Company, together with accrued and unpaid interest
thereon.
C. Each Member shall look solely to the assets of the Company for all
distributions with respect to the Company and its Capital Contribution thereto
and share of Profits or Losses thereof and shall have no recourse therefor (in
the event of any deficit in a Member's Capital Account or otherwise) against the
other Member; provided that nothing herein contained shall relieve any Member of
such Member's obligation to make any Capital Contribution herein provided or to
pay any liability or indebtedness owing the Company by such Member, and the
Company and the other Member shall be entitled at all times to enforce such
obligations of such Member. No holder of a Company interest shall have any right
to demand or receive property other than cash upon dissolution and termination
of the Company; provided that, the Company may distribute all or any portion of
the Company Property in kind with the written consent of all Members, which
consent may be withheld in the sole and absolute discretion of any Member.
D. Upon the completion of the liquidation of the Company and the
distribution of all Company Property and funds, the Company shall terminate and
the Winding-Up Member shall have the authority to execute and record a
certificate of cancellation of the Company, as well as any and all other
documents required to effectuate the dissolution and termination of the Company.
Section 8.5. Certain Matters as to Non-Association Status. In the event
that under both Federal and Massachusetts income tax law, the elimination of
Section 8. 1 A will not cause the Company to be treated as an association taxed
as if it were a corporation, then, notwithstanding any other provisions of this
Agreement to the contrary, neither the Bankruptcy of a Member nor any other
event which terminates a Member's continued membership in the Company will be a
Dissolution Event, and accordingly, the provisions of Sections 8.1, 8.2 and 8.4
will not apply to such Member.
ARTICLE IX MISCELLANEOUS.
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Section 9.1. Notices. Any notice which a party is required or may desire to
give the other party shall be in writing and may be delivered (1) personally,
(2) by United States registered or certified mail, postage prepaid, or (3) by
United Parcel Service or other reputable courier service regularly providing
evidence of delivery (with charges paid by the party sending the notice). Any
such notice shall be addressed as follows (subject to the right of a party to
designate a different address for itself by notice similarly given):
To Overseas:
Overseas Partners Capital Corp.
115 Perimeter Center Place, Suite 940
Atlanta, GA 30346
Attention: Bruce M. Barone, President
with a copy to:
Overseas Partners Ltd.
Craig Appin House
P.O. Box HM1581
8 Wesley Street
Hamilton HM GX BERMUDA
Attention: Bruce M. Barone, President
with copy to:
Overseas Partners Capital Corp.
115 Perimeter Center Place, Suite 940
Atlanta, GA 30346
Attention: Legal Department
with copy to:
Hutchins, Wheeler & Dittmar
101 Federal Street
Boston, Massachusetts 021 10
Attention: John C. Thomson, Esq.
To JMB:
JMB Realty Corporation
900 North Michigan Avenue, Suite 1900
Chicago, Illinois 60611
Attention: Rigel Barber
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<PAGE> 31
with copy to:
JMB Realty Corporation
900 North Michigan Avenue, Suite 1900
Chicago, Illinois 60611
Attention: General Counsel
and with copy to:
Pircher, Nichols & Meeks
1999 Avenue of the Stars, 26th Floor
Los Angeles, California 90067
Attention: Real Estate Notices (PGN)
Any notice so given by United States mail or courier service shall be deemed to
have been given on the date delivered (whether accepted or refused) as evidenced
by the return receipt or other proof of delivery. Any notice not so given by
U.S. mail or courier service shall be deemed to be given upon receipt of the
same by the party to whom the same is to be given.
Section 9.2. Entire Agreement. This Agreement constitutes the entire
agreement between the parties. This Agreement supersedes any prior agreement or
understandings between the parties.
Section 9.3. Amendments. This Agreement may be amended by written agreement
of amendment executed by all Members, but not otherwise.
Section 9.4. Governing-Law. This Agreement and the rights of the parties
under it shall be interpreted, construed and enforced in accordance with the
internal laws of the State of Delaware without regard to principles of conflicts
of laws.
Section 9.5. Successors and Assigns. Except as herein otherwise
specifically provided, this Agreement shall be binding upon and inure to the
benefit of the parties and their legal representatives, successors and assigns.
Section 9.6. Captions. Captions contained in this Agreement in no way
define, limit or extend the scope or intent of this Agreement.
Section 9.7. Severability. If any provision of this Agreement, or the
application of such provision to any person or circumstance, shall be held
invalid, the remainder of this Agreement, or the application of such provision
to the persons or circumstances, shall not be affected thereby.
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<PAGE> 32
Section 9.8. Counterparts. This Agreement may be executed in several
counterparts, each of which shall be deemed an original, but all of which shall
constitute one and the same document.
Section 9.9. No Third Party Beneficiaries. Nothing in this Agreement,
expressed or implied, is intended to confer any rights or remedies upon any
person, other than the parties hereto and, subject to the restrictions on
assignment herein contained, their respective successors and assigns.
Section 9.10. Certain Terminology.
(1) Whenever the words "including," "include" or "includes" are used in
this Agreement, they should be interpreted in a non-exclusive manner as though
the words," without limitation," immediately followed the same.
(2) Except as otherwise indicated, all Article, Section and Exhibit
references in this Agreement shall be deemed to refer to the Sections and
Articles in, and the Exhibits to, this Agreement.
Section 9.11 Limitation of Liability. No present or future partner,
member, officer, director, shareholder, employee, affiliate, advisor or agent of
either Member shall have any personal liability, directly or indirectly, under
or in connection with this Agreement.
Section 9.12. Incorporation of Exhibits. All exhibits attached and
referred to in this Agreement are hereby incorporated herein as fully set forth
in (and shall be deemed to be a part of) this Agreement.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the
date first above written.
Managing Member
OVERSEAS PARTNERS CAPITAL CORP.,
a Delaware corporation
By: /s/ Bruce M. Barone
--------------------
Name: Bruce M. Barone
Title: President
"Managing Member"
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<PAGE> 33
JMB REALTY CORPORATION,
a Delaware corporation
By: /s/ H. Rigel Barber
-------------------------
Name: H. Rigel Barber
-------------------------
Title: Executive Vice President
-------------------------
"Non-Managing Member"
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<PAGE> 34
COMPANY AGREEMENT EXHIBITS
A - Members' Capital Contributions
B - Business Property-Legal Description
C - Certain Tax and Accounting Matters
D - Method of Determining Fair Market Value
E - Provisions Concerning Existing Loan
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<PAGE> 35
EXHIBIT "'A"
MEMBERS" CAPITAL CONTRIBUTIONS
OVERSEAS $15,110,840.00
JMB $0.00
A-1
<PAGE> 36
EXHIBIT "B"
BUSINESS PROPERTY LEGAL DESCRIPTION
[TO BE ADDED]
B-1
<PAGE> 37
EXHIBIT "C"
CERTAIN TAX AND ACCOUNTING MATTERS
COPLEY PLACE ASSOCIATES, LLC
The following provisions set forth the rules governing, among other
matters, the maintenance of capital accounts, the allocation of profits and
losses, and the maintenance of books and records of Copley Place Associates, LLC
(the "Company") pursuant to Section 2.1 of the Amended and Restated Limited
Liability Company Agreement (the "Agreement") to which this Exhibit 'IC" is
attached and of which this Exhibit "C" is a part. Except as otherwise indicated,
each capitalized term used herein shall have the meaning set forth for the same
in the Agreement.
ARTICLE 1. CAPITAL ACCOUNTS.
Section 1.1. Maintenance of Capital Accounts: General Rules. A separate
"Book Capital Account" (as defined in Section 1.2 of this Exhibit "C") shall be
maintained for each Member in accordance with the provisions of this Article 1.
Section 1.2. Book Capital Accounts. A capital account (the "BOOK CAPITAL
ACCOUNT") for each Member shall be established and maintained at all times
during the term of the Company in accordance with this Section 1.2 and the
capital account maintenance rules set forth in Sections 1.704-1 (b)(2)(iv) and
1.704-2 of the Income Tax Regulations, as the same may be amended from time to
time ("INCOME TAX REGULATIONS"). In the event that at any time during the term
of the Company it shall be determined that the Book Capital Accounts shall not
have been maintained as required by this Section 1.2, then said accounts shall
be retroactively adjusted so that the same shall conform to this Section 1.2.
A. Initial Book Basis of Business Property. The Members agree that the
aggregate "Book Basis" (as hereinafter defined) as of the date hereof but
following the making of the contributions required as described in Section 3.1
of the Operating Agreement, of the Business Property is $324,900,000.00. As used
herein, "BOOK BASIS" of an item of Company Property means the adjusted basis of
such item as reflected in the books of the Company, determined and maintained in
accordance with the capital accounting rules contained in Section
1.7804-1(b)(2)(iv) of the Income Tax Regulations.
B. Initial Book Capital Accounts. As used herein, the "INITIAL BOOK
CAPITAL ACCOUNT" of each Member means the Book Capital Account as of the date
hereof but following the making of the contributions required as described in
Section 3.1 of the Operating Agreement. The Initial Book Capital Account of each
Member shall be as follows:
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Overseas $79,697,540.00
JMB $39,848,770.00
C. Optional Revaluations of Company Property. The Company may make the
election to revalue Company Property and to increase or decrease the Book
Capital Accounts of the Members as permitted under Section 1.704-1 (b)(2)(iv)(f)
of the Income Tax Regulations as determined by the approval of both of the
Members. Any action taken pursuant to this Section 1.2C shall constitute a
Unanimous Approval Major Decision as set forth in Section 5.IC of the Agreement
D. Determination of Book Items. The book values of Company Property
shall be increased or decreased, as the case may be, to reflect any adjustments
to the adjusted tax basis of such properties pursuant to Section 734(b) or
Section 74(b) of the Code to the extent that such basis adjustments (i) are
taken into account in determining Book Capital Account balances pursuant to
Section 1.704-1(b)(2)(iv)(m) of the Income Tax Regulations and (ii) have not
been reflected in adjustments to the book values of such properties pursuant to
Section 1.2C. If an item of Company Property has an adjusted tax basis equal to
zero, adjustment to the book value of such property shall be determined under
any reasonable method selected by Managing Member.
E. Book Adjustments on Distributions. With respect to all
distributions of Company Property to the Members, the Company shall comply with
the provisions contained in Section 1.704-1(b)(2)(iv)(e) of the Income Tax
Regulations (relating to adjustments to the Members' Book Capital Accounts in
connection with such distributions) and all allocations and adjustments made in
connection therewith shall be in accordance with Article II of this Exhibit "C".
ARTICLE 11. ALLOCATION OF INCOME, LOSSES AND DEDUCTIONS FOR BOOK AND TAX
PURPOSES.
Section 2.1. Profits and Losses. The "Profits" or "Losses" of the Company
(which are defined at the end of this Section 2.1) for each fiscal year of the
Company, shall be allocated to the Members in the following order and priority.
A. Profits. Profits shall be allocated among the Members as follows:
(1) First, to the Members, in proportion to their respective
Company Percentages, until there shall have been allocated to each Member
Profits equal to the excess, if any, of (x) the cumulative amount of Losses
allocated to such Member pursuant to Section 2.1 B(4) hereof through and
including such fiscal year; over (y) the cumulative amount of Profits allocated
to such Member pursuant to this Section 2.1 A(l) through and including such
fiscal year;
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(2) next, to the Member receiving distributions pursuant to
Section 4.3 of the Agreement until there shall have been allocated to such
member cumulative Profits through and including such fiscal year equal to the
amount, if any, by which: (x) the distributions made to such Member in
accordance with such Section 4.3; exceed (y) A less B plus C where: A = the
amount of the Discretionary Capital Contributions, if any, made by such Member
pursuant to Section 3.4 of the Agreement; B = the cumulative amount of Losses
allocated to such member pursuant to Section 2-1B(3) through and including such
fiscal year; and C = the cumulative amount of Profits allocated to such Member
pursuant to this Section 2.1 A(2) through and including such fiscal year; and
(3) next, to the Members, in proportion to their respective
Company Percentages.
B. Losses. Losses shall be allocated among the Members as follows:
(1) First, to the Members, in proportion to their respective
Company Percentages, until there shall have been allocated to each Member Losses
equal to the excess, if any, of (x) the cumulative amount of Profits allocated
to such Member pursuant to Section 2.1 A(3) hereof through and including such
fiscal year: and (y) the cumulative amount of Losses allocated to such Member
pursuant to this Section 2.1 B(l) through and including such fiscal year;
(2) next, to the Members, in proportion to their respective
Company Percentages, until there shall have been allocated to each Member Losses
equal to the excess, if any, of (x) an amount of Losses equal to such Member's
Initial Book Capital Account balance, as set forth in Section 1.2B of this
Exhibit "C" of ; over (y) the cumulative amount of Losses allocated to such
Member pursuant to this Section 2.1 B(2), through and including such fiscal
year;
(3) next, to the Members, in proportion to their relative Company
Percentages and then as appropriate, until there shall have been allocated to
each Member Losses equal to the excess, if any, of (x) an amount of
Discretionary Capital Contributions made by such Member pursuant to Section 3.4
of the Agreement; over (y) the cumulative amount of Losses allocated to such
Member pursuant to this Section 2.1 B(3), net of the cumulative amount of
Profits allocated to such Member pursuant to Section 2.1 A(2) through and
including such fiscal year;
(4) next, to the Members, in proportion to their respective
relative Company Percentages.
For purposes of this Exhibit "C" and elsewhere in the Operating Agreement,
"Profit" (or "Loss") means, for each fiscal year of the Company, an amount, if
any, by which the Company's gross taxable income and gains exceed (or are
exceeded by) the Company's gross taxable
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deductions and losses arising in connection therewith. Calculations of Profit
(and Loss) shall be consistent with calculations made for Federal income tax
purposes except that:
(i) income of the Company that is exempt from federal income tax and
that is not otherwise taken in account in computing Profit (or Loss) shall be
added to such taxable income;
(ii) expenditures of the Company that are described in Section 70
5(a)(2)(B) of the Code (or that are treated as described in such Section
pursuant to Section 1. 704-1 (b)(2)(iv)(i) of the Income Tax Regulations) and
that are not otherwise taken in account in computing Profit (or Loss) shall be
subtracted from such taxable income;
(iii) if the book values of Company assets are adjusted pursuant to
Section 1.2, such adjustments shall be treated as gains or losses, as the case
may be, from dispositions of those assets in accordance with Section 1.704-1
(b)(2)(iv)(f) of the Income Tax Regulations;
(iv) gains, losses and cost recovery deductions with respect to
Company properties that are properly reflected, under Section 1.704-1(b)(2)(iv)
of the Income Tax Regulations, on the Company's books at values that differ from
the Company's tax bases in those properties shall be determined with reference
to the book values of those properties in accordance with Sections
1.704-1(b)(2)(iv)(f), 1.704-1(b)(2)(iv)(g) and 1.704-1(b)(4)(i) of the Income
Tax Regulations; and
(v) items that are specially allocated pursuant to Section 2.4 shall
not be taken into account in computing a Profit (or Loss) for any year or other
period.
Section 2.2. Tax Allocations.
A. Tax Allocations. Tax allocations for each fiscal year of the
Company shall be made consistent with the allocations of Profit and Loss and
items specially allocated pursuant to Section 2.4 for such fiscal year, except
that, solely for tax purposes, (i) items of income, gain, loss and deduction
with respect to Company assets reflected hereunder in the Members' Book Capital
Accounts and on the books of the Company at values that differ from the
Company's adjusted tax bases in such assets shall be allocated among the Members
so as to take account of those differences in such manner as the Managing Member
reasonably determines is in accordance with the "traditional method" provided
for in the Regulations under Section 704(c) of the Code and with Sections
1.704-1(b)(2)(iv)(f),1.704-1(b)(2)(iv)(g),1.704-1(b)(4)(i) and 1.704 of the
Income Tax Regulations, and (ii) adjustments made pursuant to Section 734(b) or
Section 743(b) of the Code shall be taken into account.
B. Recapture Income. If, in the event of a gain on any sale, exchange
or other disposition of Company Property, all or a portion of such gain is
characterized as ordinary income by virtue of the recapture rules of Section
1250, Section 1245 or otherwise then such
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<PAGE> 41
ordinary income shall be %allocated between or among the Members in the same
manner that deductions from depreciation with respect to such Company Property
had been allocated between or among them; provided, however, that under no
circumstances shall there be allocated to any Member such ordinary income in
excess of the gain allocated to such Member under subsection A above (and such
excess shall be allocated instead between or among the Members as to which this
proviso does not apply, in proportion to the gain allocated between or among
them). Consistent with the foregoing provisions of this Section 2.2.B, the
parties hereto intend that the allocation of income recharacterized pursuant to
the recapture rules of Section 1250, Section 1245, or otherwise, shall be
governed generally by Section 1. 1245-1(e) of the proposed Income Tax
Regulations.
Section 2.3. Exceptions.
(1) General Limitation. Notwithstanding anything to the contrary
contained in this Article II, no allocation shall be made to a Member which
would cause such Member to have a deficit balance in its "adjusted Book Capital
Account" (defined as the Book Capital Account of a Member reduced by any
adjustments, allocations or distributions described in Section
1.704-1(b)(2)(ii)(d)(4),(5) or (6) of the Income Tax Regulations) which exceeds
the sum of such Member's share of Company "minimum gain" (as defined in Section
1.704-2(d) of the Income Tax Regulations) and such Member's share of Member
"nonrecourse debt minimum gain" (as defined in Section 1.704-2(i) of the Income
Tax Regulations). If the limitation contained in the preceding sentence would
apply to cause an item of loss or deduction to be unavailable for allocation to
all Members, then such item of loss or deduction shall be allocated between or
among the Members in accordance with the Members' respective Company
Percentages.
(2) Allocation Relating to Nonrecourse Borrowing. The Company (i)
shall allocate any "nonrecourse deductions," computed and determined in
accordance -with Section 1.704-2(b)(1), 1.704-2(c) and 1.704-2(j) of the Income
Tax Regulations. it may have to the Members in proportion to their respective
Company Percentages, (ii) shall allocate any " partner nonrecourse deductions,"
computed and determined in accordance with Sections 1.7042(i) and 1.704-2(j) of
the Income Tax Regulations, it may have so as to comply with Section 1.704(i) of
the Income Tax Regulations and (iii) shall make such allocations as are
necessary to comply with the "minimum gain chargeback provisions of Sections
1.704-2(f), 1.704-2(i) and 1.704-2(j) of the Income Tax Regulations, taking into
account all exceptions provided by such provisions to the applicability of this
clause (iii).
Section 2.4. Qualified Income Offset. Notwithstanding anything to the
contrary in this Exhibit "C," in the event any Member unexpectedly receives any
adjustments, allocations or distributions described in Section
1.704-1(b)(2)(ii)(d)(4), (5), or (6) of the Income Tax Regulations, there shall
be specialty allocated to such Member such items of Company income and gain, at
such times and in such amounts as will eliminate as quickly as possible the
deficit balance (if any) in its Book Capital Account (in excess of the sum of
such Member's share of
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<PAGE> 42
Member "minimum gain" and such Member's share of "nonrecourse debt minimum
gain") created by such adjustments, allocations or distributions. To the extent
permitted by the Code and the Income Tax Regulations, any special allocations of
items of income or gain pursuant to this Section 2.4 shall be taken into account
in computing subsequent allocations of Profits or Losses pursuant to this
Article II, so that the net amount of any items so allocated and the subsequent
Profits or Losses allocated to the Members pursuant to this Article II shall, to
the extent possible, be equal to the net amounts that would have been allocated
to each such Member pursuant to the provisions of this Article II if such
unexpected adjustments, allocations or distributions had not occurred.
Section 2.5. Members' Interests for Purposes of Section 752. The Members
agree and confirm that the provisions of Section 1.752-3 of the Income Tax
Regulations apply to all non-recourse liabilities of the Company. As
permitted by Section 1.752-3(a)(3)of the Income Tax Regulations, the Members
hereby specify that for purposes of determining their respective shares of
excess nonrecourse liabilities of the Company, the Members' respective shares of
Company profits shall be equal to their respective Company Percentages.
ARTICLE III. TAX AND ACCOUNTING MATTERS.
A. The Company will be on the cash basis for tax purposes and in
accordance with Generally Accepted Accounting Principles (as applied in the
United States) for accounting purposes unless the Code requires otherwise.
B. The Company books and records shall be prepared in accordance with
tax accounting principles, consistently applied. Such books and records shall be
audited by such certified public accountants as selected by the Members, at
least annually and at such other times as are determined by Members.
C. The fiscal year of the Company shall end on the 31st day of
December in each year.
D. Managing Member shall comply with the requirements contained in
Section 1446 of the Code and comparable tax laws of any other State in which the
Company is engaged in business (regarding income tax withholding on certain
income that is allocated to Members who are non-U.S. persons) and any successor
or replacement provision or provisions of law or administrative guidance (the
"FOREIGN MEMBER WITHHOLDING LAW"). Managing Member is hereby authorized and
directed by each Member to withhold from the distributions or other amounts
payable to such Member under the Operating Agreement such amount or amounts
("REQUIRED FOREIGN MEMBER WITHHOLDING") as the Managing Member reasonably
determines are required by the Foreign Member Withholding Law, and to remit the
Required Foreign Member Withholding to the Internal Revenue Service and/or such
other applicable State taxing agency at such time or times as may from time to
time be required by the relevant taxing authority. If the Managing Member
determines at any time that the Required Foreign Member
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<PAGE> 43
Withholding with respect to a particular Member exceeds the amount of
distributions or other amounts payable to such Member at such time (a "Cash
Shortfall"), the Member in question shall immediately make a cash contribution
to the Company equal to the amount of such Cash Shortfall, which the Managing
Member shall use to effectuate the Required Foreign Member Withholding. When
remitting the Required Foreign Member Withholding, the Managing Member shall
inform the relevant taxing authority of the name and tax identification number
of the Member for whose account such Required Foreign Member Withholding is
being made. In complying with the provisions of this paragraph, the Managing
Member shall be entitled to presume irrebuttably that a Member is subject to the
Foreign Member Withholding Law unless: (i) such Member shall have previously
provided the Managing Member with a completed and signed certificate of
non-foreign status, in the Form attached as Schedule "l," such certificate was
furnished to the Managing Member not earlier than during the third taxable year
of the Company preceding the taxable year under consideration, the Managing
Member has not been notified by such partner that its status under such
certificate has changed, and the Managing Member does not have actual knowledge
that the status of such Member under such certificate has changed; or (ii) the
Managing Member reasonably determines, based upon all facts and circumstances
(including, without limitation, the provisions contained in Revenue Procedure
8931, 1989-1 Cum. Bull. 895, or any successor Revenue Procedure, guideline or
administrative pronouncement), that the Foreign Member Withholding Law does not
apply in a particular instance.
E. The Managing Member shall cause the Company to make, or not to
make, the election permitted by Section 754 of the Code and comparable
provisions of relevant state income tax law, as it shall determine in its sole
discretion.
ARTICLE E. NO DEFICIT FUNDING OBLIGATION.
Notwithstanding anything to the contrary contained in this Exhibit "C"
or in the Operating Agreement, no Member shall be at any time obligated to
restore all or any portion of a deficit balance in such Member's Book Capital
Account.
ARTICLE IV. ORDER OF APPLICATION.
For purposes of this Exhibit "C," the following provisions set forth
in the Operating Agreement and this Exhibit "C" shall be applied in the
following order:
A. Article IV of the Operating Agreement relating to distributions.
B. Section 2.3(1) of this Exhibit "C" relating to general limitations.
C. Section 2.3(2) of this Exhibit "C" relating to Nonrecourse
Deductions.
D. Section 2.4 of this Exhibit "C" relating to qualified income
offset.
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<PAGE> 44
E. Section 2.1 of this Exhibit "C" relating to allocations of Profits
and Losses.
These provisions shall be applied as if all contributions, distributions
and allocations with respect to a given fiscal year were made at the end of the
Company's fiscal year. Where any provision depends on the Book Capital Account
of any Member, such Book Capital Account shall be determined after the
application of all preceding provisions for the year.
ARTICLE VI. CLOSING OF COMPANY BOOKS IN CONNECTION WITH ADMISSION OF NEW
MEMBER OR TRANSFER OF MEMBER'S INTEREST.
Upon the effective date (the "Effective Date") of the admission of a new
Member into the Company or of a valid transfer of all or part of a Member's
interest in the Company pursuant to Article VI of the Operating Agreement, the
books of the Company shall be closed in accordance with Section 706(d) of the
Code, and consistent therewith: (X) items of income, deduction, gain, loss
and/or credit of the Company that are recognized prior to the Effective Date
shall be allocated among those persons or entities who were Members in the
Company prior to the Effective Date; and (Y) items of income, deduction, gain,
loss and/or credit of the Company that are recognized after the Effective Date
shall be allocated among the persons or entities who were Members after the
Effective Date.
ARTICLE VII. TAX MATTERS PARTNER.
Managing Member shall be the "tax matters partner" of the Company as such
term is defined in Section 6231(a)(7) of Code (the "Tax Matters Partner"), and
it shall serve as such at the expense of the Company with all powers granted to
a tax matters partner under the Code. Managing Member shall use its best efforts
to cause the Company's accountants to prepare and file on a timely basis, with
due regard to extensions, all tax and information returns that the Company may
be required to file, all at Company expense. The Company's accountants are (i)
to deliver all tax and information returns to the Members for their review,
comment and reasonable approval at least thirty (30) days in advance of the
required filing date therefor (taking into account any extensions approved by
the Members), and (ii) to furnish the Members with a projection of the Company's
taxable income or loss for each fiscal and tax year of the Company by December 1
of each such year to assist in year-end tax planning, all at Company expense.
Each Member shall give prompt notice to each other Member of any and all notices
it receives from the Internal Revenue Service concerning the Company, including
any notice of audit, any notice of action with respect to a revenue agent's
report, any notice of a thirty (30) day appeal letter and any notice of a
deficiency in tax concerning the Company's federal income tax return. The Tax
Matters Member shall at Company expense finish each Member with status reports
regarding any negotiation between the Internal Revenue Service and the Company,
and each such Member, if it so requests, may participate in such negotiation.
The Tax Matters Member shall use its best efforts to cause the Company's
accountants to prepare and deliver to each
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Member an information reporting return (Schedule K-1) reflecting each Member's
distributive share of all income, gain, loss, deductions, allowances or credits
of the Company for each fiscal year, and will provide the information necessary
for such accountants to do so and to issue the other reports required hereunder
on a timely basis.
ARTICLE VIII. OUTSIDE ACCOUNTANT.
The Members hereby approve, but the Managing Member shall not be required
to use, Deloitte & Touche, LLP as outside accountant for the Company.
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<PAGE> 46
SCHEDULE "1" TO EXHIBIT "C"
[INDIVIDUAL]
CERTIFICATION OF NON-FOREIGN STATUTE
Section 1446 of the Internal Revenue Code provides that a company must pay
a withholding tax to the Internal Revenue Service with respect to a member's
allocable share of the company's effectively connected taxable income. To inform
Copley Place Associates, LLC (the "COMPANY") that the provisions of Section 1446
do not apply, I hereby certify the following:
_______________________
1. I am not a nonresident alien for purposes of U.S. income taxation.
2. My U.S. taxpayer identification number (social security number) is
_______________.
3. My home address is:
_______________________
_______________________
_______________________
_______________________
I hereby agree that if I become a nonresident alien, I will notify the
Company within sixty (60) days of doing so. I understand that this certification
may be disclosed to the Internal Revenue Service by the Company and that any
false statement contained herein could be punished by fine, imprisonment, or
both.
Under penalties of perjury , I declare that I have examined this
certification and to the best of my knowledge and belief it is true, correct and
complete.
Executed as of the day of , 19 , at .
____ _________ ___ ________
_________________________________________
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<PAGE> 47
OVERSEAS PARTNERS CAPITAL CORP.
CERTIFICATION OF NON-FOREIGN STATUS
Section 1446 of the Internal Revenue Code provides that a company must pay
a withholding tax to the Internal Revenue Service with respect to a member's
allocable share of the company's effectively connected taxable income. To inform
Copley Place Associates, LLC (the "Company") that the provisions of Section 1446
do not apply, the undersigned hereby certifies on behalf of the following:
1. Overseas Partners Capital Corp. is not a foreign corporation, foreign
company, foreign trust, or foreign estate (as those terms are defined in the
Internal Revenue Code and Income Tax Regulations);
2. Overseas Partners Capital Corp.'s U.S. taxpayer identification number is
________________.
3. Overseas Partners Capital Corp.'s office address is:
Overseas Partners Capital Corp.
115 Perimeter Center Place, Suite 940
Atlanta, Georgia 30346-1223)
Overseas Partners Capital Corp. hereby agrees to notify, the Company within
sixty (60) days of the date Overseas Partners Capital Corp. becomes a foreign
person. Overseas Partners Capital Corp. understands that this certification may
be disclosed to the Internal Revenue Service by the Company and that any false
statement contained herein could be punished by fine, imprisonment, or both.
Under penalties of perjury, I declare that I have examined this
certification and to the best of my knowledge and belief it is true, correct and
complete, and I further declare that I have authority to sign this document on
behalf of Overseas Partners Capital Corp.
Executed as of the day of January, 1997, at .
______ ________
______________________________
Bruce M. Barone
President
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<PAGE> 48
EXHIBIT "D"
PROCEDURE FOR DETERMINING FMV
The following provisions set forth the procedure for determining "Fair
Market Value" as referred to in Section 8.2 of the Amended and Restated Limited
Liability Company Agreement (this "AGREEMENT") to which this Exhibit is attached
and of which this Exhibit is a part. Except as otherwise indicated, each
capitalized term used herein shall have the meaning set forth for the same
elsewhere in the Agreement.
A. Definition. "Fair Market Value" means the price (as determined pursuant
to this Exhibit) at which the property (the "SUBJECT PROPERTY") to be appraised
would be sold for cash by a willing seller, not compelled to sell, to a willing
buyer, not compelled to buy, on a free and clear basis, unencumbered by any
financing (including, without limitation, any deeds of trust, mortgages, ground
leases (in connection with sale/leaseback financing only) or other security
instruments securing any financing) other than prepayment penalties except to
the extent such penalties are applicable to the transaction giving rise to the
need to determine Fair Market Value. However, the determination of the Fair
Market Value of the Subject Property shall take into account (and be reduced by)
the total closing costs (including attorneys' fees, title insurance costs,
brokers' fees and recordation costs) that would customarily be paid by the
seller of properties of like kind and stature.
B. Agreement Procedure. First, the parties shall attempt to determine the
Fair Market Value of the Subject Property by agreement in accordance with this
subsection B.
(1) Proposal. On (or within 15 days before or after) the date (the
"DETERMINATION DATE") as of which the determination of Fair Market Value is to
be made, the Electing Member ("First MEMBER") (upon agreement of all parties
comprising First Member) may give the Dissolution Member ("SECOND MEMBER")
written notice of its proposed Fair Market Value of the Subject Property. If
Second Member disagrees with any such proposed Fair Market Value, Second Member
shall notify First Member in writing, within 10 business days after First
Member's proposal is delivered, of its disagreement and its counterproposal (and
failure to do so within such 10 business day period shall be deemed to
constitute Second Member's agreement with First Member's proposal). Such IO
business day period is herein called the "Proposal Period."
(2) Supplemental Discussion. If First Member and Second Member fail to
reach actual (or deemed) agreement during the Proposal Period (or if the
proposal described above is not given), then the parties shall use good faith
efforts to reach agreement on the Fair Market Value of the Subject Property on
or before the "OUTSIDE NEGOTIATION DATE" (which, as used herein, means the date
that is 20 business days after the Determination Date or, if later, 10 business
days after the Proposal Period, if any).
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C. Appraisal Procedure. If agreement is not reached (or deemed reached) on
or before the Outside Negotiation Date, then the Fair Market Value of the
Subject Property shall be determined by an appraisal made by a single appraiser
or by a board of three appraisers as hereinafter provided in this subsection C.
(1) Appointment of Appraisers.
(a) Appraiser Qualifications. Each appraiser selected under this
Exhibit must (I) be a reputable real estate appraiser, (ii) be a member of the
American Institute of Real Estate Appraisers or a successor body hereinafter
constituted exercising a similar function, (iii) have at least five (5) years
experience in appraising major institutional quality properties, and (iv) have
no direct or indirect financial or other business interests in or with any party
to this Agreement.
(b) Selection Process. During the 15-day period immediately
following the Outside Negotiation Date, the parties will endeavor jointly to
select, approve and appoint an appraiser to appraise the Subject Property for
the purposes of this Exhibit. If the parties have not jointly appointed an
appraiser by the date which is 15 days after the Outside Negotiation Date, the
appraisal of the Subject Property for the purposes of this Exhibit will be
conducted by a board of three appraisers, one appointed by First Member, one
appointed by Second Member and the third appointed by the first two appraisers.
In the event that the Parties have not jointly appointed an appraiser by the
date Much is 15 days after the Outside Negotiation Date, the first two
appraisers shall be appointed by the parties by a date which is not later than
30 days after the Outside Negotiation Date, and the third appraiser shall be
appointed by the first two appraisers within 15 days after the appointment of
the first two appraisers. If the first two appraisers are unable to agree on a
third appraiser, such third appraiser shall be appointed by the senior federal
district court judge, or such other federal district court judge as he may
designate, for the district in which the Subject Property is located, acting in
his non-judicial capacity. If such federal district court judge refuses to act
within 15 days after such request, such third appraiser shall be appointed
pursuant to the rules of the American Arbitration Association. If the parties
have not jointly appointed an appraiser by the date which is 15 days after the
Outside Negotiation Date, and one Member appoints an appraiser within the time
period specified above and the other Member fails to appoint another negotiator
within the time period specified above the appraiser shall be the appraiser
appointed by the first party.
(c) Costs. The costs and expenses of each of the first two
appraisers shall be paid by the party appointing such appraiser, and the costs
and expenses of the third appraiser (or the single appraiser, if one appraiser,
instead of three appraisers, is used) shall be shared 50% by the First Member
and 50% by the Second Member.
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(2) Determination by Appraisers.
(a) Appraisal by One Appraiser. If the appraisal is to be
conducted by a single appraiser appointed jointly by the parties, the appraiser
appointed shall proceed to appraise the Subject Property and notify the parties
by written notice of the amount of the Fair Market Value of the Subject
Property, which notice shall be accompanied by a copy of his appraisal report,
not-later than the earlier to occur of the date which is 30 days after the
appointment of such appraiser and the date which is 45 days after the Outside
Negotiation Date, and such appraiser's determination of the Fair Market Value of
the Subject Property shall be deemed to be the Fair Market Value of the Subject
Property.
(b) Appraisal by Three Appraisers. If the appraisal is to be
conducted by a board of three appraisers, the appraisers shall proceed to
appraise the Subject Property and notify the parties by written notice of the
amount of their determinations of the Fair Market Value of the Subject Property,
which notices shall be accompanied by copies of their appraisal reports and be
given not later than 30 days after the appointment of the third appraiser. If
the determinations of the Fair Market Value of the Subject Property of any two
or all three of the appraisers shall be identical in amount, such amount shall
be deemed to be the Fair Market Value of the Subject Property, but if such
determinations of all three appraisers shall be different in amount, then the
Fair Market Value of the Subject Property shall be determined as follows:
(i) If neither the highest nor the lowest appraised value
differs from the middle appraised value by more than 10% of the middle appraised
value or if highest and lowest appraised values each differ from the middle
appraised value by the same amount, then the Fair Market Value of the Subject
Property shall be deemed to be the average of the three appraised values; and
(ii) Otherwise, the Fair Market Value of the Subject
Property shall be deemed to be the average of the middle appraised value and the
appraised value closer in amount to the middle appraised value.
D. Conclusive Determination. The Fair Market Value of the Subject Property
determined in accordance with the provisions of this Exhibit shall be binding
and conclusive on the parties.
D-3
<PAGE> 51
EXHIBIT "E"
PROVISIONS CONCERNING EXISTING LOAN
Capitalized terms used but not otherwise defined in this Exhibit "E" shall have
the meanings ascribed thereto in the Amended and Restated Limited Liability
Company Agreement (the "Agreement") to which this Exhibit "E" is attached.
1. Loan Escrow Account. The Managing Member shall cause the Company to
make, as and when required by the Existing Loan Documents, all deposits into
that certain interest bearing account (the "Loan Escrow Account") established
under the "Security Agreement" (as defined below) and defined therein as the
"Account" (any such deposit being referred to as a "Loan Escrow Deposit",
whether such deposit increases the balance of the Loan Escrow Account or is used
and applied to principal or deferred interest). The parties also acknowledge
that the calculation of the Loan Escrow Deposit is impacted by the fact that
fees payable with respect to the Management Agreement (some of which are in turn
used to pay fees re owing under the Purchase Service Agreement) are not to be
paid out of cash flow, the by increasing the cash flow available to be applied
to the Loan Escrow Account.
2. Contributions for Management Fees. To the extent that, prior to the
refinancing of the Existing Loan, the compensation and reimbursements to Manager
provided in the Management Agreement or to the Purchased Services Provider under
the Purchased Services Agreement cannot be paid from cash flow from the property
securing the Existing Loan on account of restrictions in the Existing Loan
Documents, Non-Managing Member shall provide the funds to the Company in order
to make such payment Such funds shall be deemed to be (I) a contribution (as to
one-third of such funds) by the Non-Managing Member to the Company, and (ii) a
loan (as to two-thirds of such funds) from the Non-Managing Member to the
Managing Member and the making by the Managing Member of a corresponding
contribution to the Company.
3. Loan to Non-Managing Member of 2/3rds of Debt Service Differential. As
used herein, "Debt Service Differential" means the amount, if any, by which the
Escrow Deposits and payments of interest to the Existing Lender are greater than
the sum of (i) 8.5% per annum of the outstanding balance of principal and
deferred interest on the Existing Loan on January 1, 1997 plus (ii) the amount
paid to Manager and to Purchased Services Provider from the contributions of the
Members described in paragraph 2 above. Immediately following each Escrow
Deposit (commencing with the first Escrow Deposit for the period after December
31, 1996), and continuing until the refinancing of the Existing Loan,
Non-Managing Member shall lend the Managing Member two-thirds of the amount of
the Debt Service Differential for the period since the most recent prior Escrow
Deposit.
4. Repayment of Loans. Concurrently with the refinancing of the Existing
Loan, Managing Member shall repay to Non-Managing Member the entire amount of
the loans to
E-1
<PAGE> 52
Managing Member made pursuant to paragraph 2 and 3 of this Exhibit "E", together
with interest thereon of 8.5% per annum of the amount of the principal
outstanding from time to time of such loans. Notwithstanding the foregoing, to
the extent the Loan Escrow Deposits which correspond to the loans to Managing
Member made pursuant to paragraphs 2 and 3 of this Exhibit "E" are simply used
to increase the balance of the Loan Escrow Account instead of being applied to
principal or deferred interest under the Existing Loan, the interest applicable
to such portion of the loans to Managing Partner shall be the same interest rate
earned on funds in the Loan Escrow Account.
5. Certain Definition. As used herein, the term "Security Agreement" means
that certain Security Agreement (Deposit Account), dated as of March 1, 1992,
executed by Copley Place Associates, Copley Place Associates Nominee
Corporation, Copley Funding Corporation, Copley Financing Corporation and The
Aetna Casualty & Surety Company.
6. Contingent Equity. All sums, if any, that are to be paid to Existing
Lender with respect to the Existing Lender's rights in "Contingent Equity" (as
defined in the Equity Payment Agreement) shall be paid solely by the Non
Managing Member, and Non-Managing Member shall indemnify the Managing Member and
hold the Managing Member harmless therefrom.
7. Intent of Provisions. It is the intent of the provisions of paragraphs I
through 6 above that Managing Member be put in the same economic position as it
would have been if, at all times from the inception of its Memberships in the
Company through the date of repayment (or prepayment) of the Existing Loan in
its entirety, the Escrow Loan Documents (i) did not require additional payments
to be made to the Loan Escrow Account, (ii) did not require payment of
Contingent Equity, (iii) did not prohibit payments from cash flow to pay amounts
payable under the Management Agreement and the Purchased Services Agreement and
(iv) did require that payments be made each month on the Existing Loan equal to
interest accruing at. 8.5% per annum on the outstanding balance, as of date of
Managing Member's admission to the Company, of principal and deferred interest
on the Existing Loan (and that, accordingly, the balance of principal and
deferred interest on the Existing Loan did not decrease between Managing
Member's admission to the Company and the date on which the Existing Loan is
repaid (or prepaid) in its entirety). The provisions of paragraphs I through 6
above shall be deemed to operate, and shall be construed in accordance with,
such intent.
8. Assignment and Security Agreement. Each Member ("Pledging Member")
hereby pledges to the other Member, and assigns to the other Member ("Secured
Member") for security purposes, all of the Pledging Member's interest in the
Company to secure the payment obligations of the Pledging Member under the
provisions of this Exhibit "E," and agrees to execute and deliver any and all
further instruments as the Secured Member may from time to time request in order
to further evidence or to perfect the security interest hereby granted, hereby
irrevocably appointing the Secured Member and its successors as its
attorney-in-fact, as a power coupled with an interest, to execute and deliver
all such instruments in the name and on behalf of the Pledging Member if it
shall fail to promptly execute and deliver same when requested to do
E-2
<PAGE> 53
so. The Secured Member hereby authorizes the Pledging Member to receive
distributions with respect to its interest in the Company until such time as the
Pledging Member shall fail to pay any amount to the Secured Member which becomes
due under this Exhibit "E", whereupon all such distributions shall be paid
directly to the Secured Member until the delinquent amounts have been paid in
full together with interest at the Applicable Rate (as defined in Section 3.3).
E-3
<PAGE> 54
JOINDER
THIS JOINDER ("JOINDER") is attached to that certain limited liability
company agreement captioned "AMENDED AND RESTATED LIMITED LIABILITY AGREEMENT OF
COPLEY PLACE ASSOCIATES, LLC" dated as of January 23, 1997 (the "LLC
AGREEMENT"), and is executed by each of CARLYLE REAL ESTATE LIMITED PARTNERSHIP
- - XIII, an Illinois limited partnership ("CARLYLE"), and URBAN INVESTMENT AND
DEVELOPMENT CO., an Illinois general partnership ("URBAN") as of the date of
such LLC Agreement, solely for the purposes set forth in this Joinder. Unless
otherwise defined in this Joinder, all capitalized terms will have the meaning
set forth in the LLC Agreement.
Each of Carlyle and Urban hereby executes this Joinder in order to confirm
that it has assigned its entire interest in the Company to Overseas immediately
prior to the execution and delivery of the LLC Agreement; and that effective
immediately after such assignment on the date hereof and the admission of
Overseas as a member in the Company, but immediately prior to the execution and
delivery of the LLC Agreement, each of Carlyle and Urban hereby withdraws as a
member of the Company.
IN WITNESS WHEREOF, each of Carlyle and Urban has executed this Joinder as
of the date first above written.
Carlyle:
CARLYLE REAL ESTATE LIMITED PARTNERSHIP - XIII,
an Illinois limited partnership
By: JMB REALTY CORPORATION,
a Delaware corporation
Its General Partner
By: /s/ Glenn E. Emig
-------------------------
Name: Glenn E. Emig
-------------------------
Title: Executive Vice President
-------------------------
<PAGE> 55
Urban:
URBAN INVESTMENT AND DEVELOPMENT CO.,
an Illinois general partnership
By: JMB REALTY CORPORATION,
a Delaware corporation
Its Managing General Partner
By: /s/ Paul C. Nielsen
------------------------
Name: Paul C. Nielsen
------------------------
Title: SVP
------------------------
<PAGE> 1
EXHIBIT 10.nnn
AGREEMENT OF MERGER
THIS AGREEMENT OF MERGER (the "AGREEMENT"), dated as of January 23, 1997,
is made between Copley Place Associates, an Illinois general partnership (the
"PARTNERSHIP"), and Copley Place Associates, LLC, a Delaware limited liability
company (the "COMPANY") (each of which is hereinafter sometimes referred to
individually as a "CONSTITUENT ENTITY", and both of which are hereinafter
sometimes referred to collectively as the "CONSTITUENT ENTITIES").
WITNESSETH:
WHEREAS, the Partnership is a general partnership, duly formed under the
laws of the State of Illinois, whose partners are Carlyle Real Estate Limited
Partnership-XIII, an Illinois limited partnership, Urban Investment and
Development Co., an Illinois general partnership, and JMB Realty Corporation, a
Delaware corporation; and
WHEREAS, the Company is a limited liability company, duly formed under the
laws of the State of Delaware, whose members are Carlyle Real Estate Limited
Partnership-XIII, an Illinois limited partnership, Urban Investment and
Development Co., an Illinois general partnership, and JMB Realty Corporation, a
Delaware corporation; and
WHEREAS, the Company desires, among other things, to acquire all assets,
subject to any liabilities, of the Partnership through the merger of the
Partnership into the Company; and
WHEREAS, the Constituent Entities deem it advisable and in their
respective best interests that the Partnership be merged into the Company on the
terms set forth herein (the "MERGER") and that the Company be the surviving
Constituent Entity (hereinafter sometimes referred to as the "SURVIVING
ENTITY"); and
WHEREAS, all of the partners of the Partnership and all of the members of
the Company have duly approved this Agreement and the Merger; and
WHEREAS, all other conditions precedent to the Merger and the consummation
of the transactions contemplated by this Agreement have been fulfilled in all
material respects or have been waived.
NOW, THEREFORE, the Constituent Entities hereby agree as follows:
1. Merger.
(a) Upon the date of the execution and delivery of this Agreement by
the Constituent Entities, a certificate of merger complying with the provisions
of 6 Del.C. Section 18-209 shall be prepared, executed and filed in the Office
of the
<PAGE> 2
Secretary of State of the State of Delaware (the "Secretary of State") for the
purpose of effecting the Merger. The Merger shall be effective at the time (the
"EFFECTIVE TIME") of filing of such certificate, JMB Realty Corporation hereby
is authorized to prepare, execute and file such certificate of merger, and for
purposes of executing such certificate JMB Realty Corporation is and shall be
deemed to be an "authorized person' (as such term is used in the Delaware
Limited Liability Company Act, 6 Del.C. Section 18-101, et seq.).
(b) At the Effective Time, the Partnership shall be merged with and
into the Company, and the separate existence of the Partnership shall cease, and
the effect of the Merger shall be as provided in 6 Del.C. Section 18-209. The
Company shall be the Surviving Entity in the Merger and shall continue its
separate existence as a limited liability company under the laws of the State of
Delaware.
(c) At the Effective Time, the partnership interest in the
Partnership of each partner, and all rights in respect of such partnership
interest, shall be converted into a membership interest in the Company, and each
such partner of the Partnership shall receive a membership interest in the
Company which corresponds with such partner's interest in the Partnership
immediately before the Effective Date.
2. Miscellaneous.
(a) The name of the Surviving Entity shall be Copley Place
Associates, LLC.
(b) The limited liability company agreement of the Company in effect
on the date of this Agreement, shall, from the Effective Time, constitute the
limited liability company agreement of the Surviving Entity, unless and until
amended as provided by such agreement, by subsequent agreement of the members of
the Company or the laws of the State of Delaware.
(c) All prior and contemporaneous agreements, contracts, promises,
representations and statements, if any, among the parties hereto, or their
representatives, regarding the Merger are merged into this Agreement, and this
Agreement shall constitute the entire understanding among the parties regarding
the Merger and no subsequent waiver or modification of the terms hereof shall be
valid unless in writing signed by the party to be charged and then only to the
extent therein set forth.
(d) This Agreement shall be binding upon and inure to the benefit of
the parties hereto, their representatives, successors and assigns. The captions
appearing in this Agreement are inserted only as a matter of convenience and for
reference and in no way define, limit or describe the scope or intent of this
Agreement or any of the provisions hereof,
2
<PAGE> 3
(e) This Agreement may be executed in any number of counterparts,
each of which, when executed, shall be deemed an original, and all such
counterparts together shall constitute one and the same instrument.
(f) This Agreement shall be governed by and construed in accordance
with the laws of the State of Delaware (without regard to any conflict of laws
rules thereof).
IN WITNESS WHEREOF, the Constituent Entities have caused this Agreement of
Merger to be executed by all of their partners or the managing member, as the
case may be, as of the date above written.
COPLEY PLACE ASSOCIATES,
an Illinois general partnership
By: CARLYLE REAL ESTATE LIMITED
PARTNERSHIP - XIII,
an Illinois limited partnership
General Partner
By: JMB REALTY CORPORATION,
a Delaware corporation
Its General Partner
By: /s/ Glenn E. Emig
-------------------------
Name: Glenn E. Emig
-------------------------
Title: Executive Vice President
-------------------------
By: URBAN INVESTMENT AND
DEVELOPMENT CO.,
an Illinois general partnership
General Partner
By: JMB REALTY CORPORATION,
a Delaware corporation
Its General Partner
By: /s/ Paul C. Nielsen
------------------------
Name: Paul C. Nielsen
------------------------
Title: Senior Vice President
------------------------
By: JMB REALTY CORPORATION,
a Delaware corporation
Its General Partner
By: /s/ H. Rigel Barker
--------------------------------
Name: H. Rigel Barker
--------------------------------
Title: Executive Vice President
--------------------------------
3
<PAGE> 4
COPLEY PLACE ASSOCIATES, LLC,
a Delaware limited liability compnay
By: JMB REALTY CORPORATION,
a Delaware corporation
Its Managing Member
By: /s/ H. Rigel Barber
----------------------------
Name: H. Rigel Barber
----------------------------
Title: Executive Vice President
----------------------------
4
<PAGE> 1
EXHIBIT 10.ooo
MANAGEMENT AGREEMENT
THIS MANAGEMENT AGREEMENT made as of the 23 day of January, 1997, by and
between COPLEY PLACE ASSOCIATES, LLC, a Delaware limited liability company, (the
"Owner"), and OVERSEAS MANAGEMENT, INC., a Delaware corporation (the "Manager")
a wholly owned subsidiary of Overseas Partners Capital Corp., a Delaware
corporation, ("OPCC"):
WITNESSETH THAT:
WHEREAS, Owner is the owner of the "Center" (as hereinafter defined).
WHEREAS, Owner wishes to employ Manager for the purpose of managing and
operating the Center.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
hereinafter set forth, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
ARTICLE I
CERTAIN DEFINITIONS
For purposes of this Agreement, the following terms have the following
meanings:
Section 1.1 "Central Property" means that certain subleasehold interest in
real estate and the retail shopping and office complex with associated parking
located thereon, and easements and appurtenances thereto, commonly known as
"COPLEY Place" and situated at the intersection of Dartmouth Street and Stuart
Street, in Boston, Massachusetts.
Section 1.2 The "Dartmouth Street Garage" means that certain leasehold
interest in real estate and the improvements located thereon, and easements and
appurtenances thereto,
<PAGE> 2
commonly known as the "Darmouth Street Garage" located at 128 Dartmouth Street
Boston, Massachusetts in Boston, Massachusetts.
Section 1.3 The "Center" means the Central Property and the Dartmouth
Street property, improvements, personal property or intangible property now
owned or hereafter acquired by the Owner or any nominee of the Owner, which
relates to the Center.
Section 1.4 "LLC Agreement" means that certain agreement captioned Amended
and Restated Limited Liability Company Agreement of Copley Place Associates,
LLC, dated as of January _____, 1997, between OPCC and JMB Realty Corporation, a
Delaware corporation ("JMB").
Section 1.5. "Nominee" means Copley Place Associates Nominee Corporation,
a Delaware corporation, which is the holder, as nominee Owner, of legal title to
the Central Property.
ARTICLE II
TERM
Section 2.1 Duration. Unless earlier terminated as set forth herein, the
term (the "TERM") of this Agreement shall be for a period commencing on the date
hereof and shall continue indefinitely unless terminated as provided herein,
except that if under applicable law a maximum term is required, the term shall
be the maximum term allowed by law.
Section 2.2 Termination by the Owner. Owner may terminate this Agreement
(by written notice to Manager) as provided in this Section 2.2. This Section 2.2
sets forth the sole and only rights of Owner to terminate this Agreement.
2
<PAGE> 3
(a) Certain Default. Owner may terminate this Agreement by 30 days'
written notice to Manager at any time within one year after the occurrence of a
"Termination Default Event." As used herein, "Termination Default Event" means
the material fraudulent conduct by the Manager resulting in material damage to
Owner (but unauthorized acts of employees of Manager, such as employee theft,
will not constitute fraud by the Manager), (ii) willful breach of fiduciary duty
resulting in material damage to Owner, or (iii) the occurrence during any two
calendar year period of three or more Untimely Cured Notice Defaults which
cover similar defaults by Manager. As used herein, "Untimely Cured Notice
Default means the occurrence of a material default by Manager hereunder and the
failure of Manager to cure the same within thirty (30) days after written notice
of such default by Owner (unless the same is a nonmonetary default which cannot
be cured within such thirty (30) day period, in which event such default will
not be an Untimely Cured Notice Default if Manager promptly commences and
diligently and continuously pursues to completion for the cure of same).
(b) Casually or Condemnation. Owner may terminate this Agreement by
written notice to Manager in the event that Owner permanently discontinues the
operation of the Center on account of damage to or destruction of, or a taking
by (or a sale under threat of) eminent domain of, a substantial part of the
Center.
(c) Sale of Center. Owner may terminate this Agreement by written
notice to Manager in the event that all or substantially all of the Center is
sold or disposed of.
(d) Transfer to Non-Affiliate. This Agreement shall terminate
(without the requirement of such notice) at such time as the interest of OPCC in
Owner has been transferred
3
<PAGE> 4
to an entity which is not an "Affiliate" (with the meaning given to such term in
the LLC Agreement) of OPCC.
Section 2.3 Termination by Manager. At any time Manager may elect to
terminate this Agreement by giving at least 120 days prior written notice to
Owner, in which event this Agreement shall terminate on the date for termination
specified in such notice.
Section 2.4 Effect of Termination. Termination of this Agreement
shall terminate all rights and obligations of the parties hereunder (except that
such termination shall not affect the rights and obligations of the parties
arising prior to the effective date of such termination and shall not prejudice
the rights of either party against the other for any prior breach of this
Agreement). Without limitation on the generality of the foregoing:
2.4.1 Termination of this Agreement shall terminate an and all
rights of the any Manager to act in such capacity on behalf of or with respect
to the Center (and Manager shall, if Owner so requests, execute a notice to
third parties that such rights of Manager have been so terminated).
2.4.2 Owner's termination of this Agreement pursuant to Section 2.2
hereof or the termination of this Agreement by Manger pursuant to Section 2.3
hereof shall in no way preclude Owner from recovering hereunder for its loss or
damage resulting from the default or breach of Manager, or from recovering from
Manager any sums due hereunder to Owner with respect to the period prior to the
effective date of termination or assignment.
Section 2.5 Final Accounting. Upon the termination of this
Agreement (whether upon expiration of the Term or an earlier termination as
herein provided), Manager shall within fifteen (15) business days provide or
deliver to Owner (a) a final accounting of the operations of the
4
<PAGE> 5
Center for the period since the most recent previous accounting so provided by
Manager; (b) all monies of Owner held or controlled by Manager with respect to
the Center which Manager is not entitled by this Agreement to disburse to
itself; (c) as received, any monies due Owner under this Agreement with respect
to the Center, but received by Manager after such termination; (d) all
materials, supplies, keys, contracts, leases, documents, and accounting papers,
(other than those relating solely to Manager's own business and affairs)
possessed by Manager with respect to the Center; and (e) a duly executed and
acknowledged assignment of all rights Manager may have in and to any existing
contracts relating to the operation and maintenance of the Center, and Owner
shall assume and agree to hold Manager harmless from all of Manager's
obligations thereunder, except to the extent that the existence thereof is
contrary to any provision of this Agreement or the same are expressly required
to be borne by Manager under the provisions of this Agreement prior to the date
of such termination. Owner shall pay to Manager, within ten (10) business days
of receipt of reasonable evidence thereof, for any other costs and expenses
(including, without limitation, Reimbursable Costs, as defined in Schedule 7.1)
which were properly incurred by Manager on behalf of Owner prior to the date of
termination and not reimbursed to Manager.
ARTICLE III
APPOINTMENT AND AUTHORITY OF THE MANAGER
Section 3.1 Appointment and Authority of the Manager: Delegation. On
and subject to the terms and. conditions herein set forth, Owner hereby appoints
Manager as the exclusive leasing and managing agent for the Center and as the
operator of all parking facilities therein and hereby authorizes Manager, as
agent for Owner, subject to the limitations herein set forth, to exercise such
powers and to have such authority with respect to the Center as are customary
for a
5
<PAGE> 6
manager and leasing agent and operator of properties of like size and quality
and, in addition. all such powers and authority as may be reasonably necessary
for the performance of Manager's duties set forth herein, including the right to
delegate some or all of such powers and authority to one or more sub-managers,
consultants and other service providers (individually each "Contractor," and
collectively "Contractors") as Manager may determine in its sole discretion to
be necessary or desirable, provided every contract with each such Contractor
shall be subject to the prior reasonable approval of Owner. Manager hereby
accepts such appointment. Except as otherwise specifically provided in this
Agreement, any action taken or duty performed by a Contractor shall fulfill the
obligation of Manager with respect to such action or duty subject always to the
standard of performance set forth in Section 5.1 hereof.
Section 3.2 Action of Owner. For purposes of this Agreement, all
actions taken by any person having the title of Vice President or higher in the
Managing Member of Owner shall be conclusively deemed to be the authorized
action of the Owner, except as otherwise provided in the LLC Agreement.
Section 3.3 Subject to LLC Agreement. Owner has provided Manager
with a true and correct copy of the LLC Agreement and shall promptly provide
Manager with all amendments and modifications thereto which hereafter become
effective. Nothing in this Agreement shall authorize or require Manager to take
(or cause any of its Contractors to take) any action on behalf of Owner which
would constitute a default by either member of Owner under the LLC Agreement,
without the prior written consent of Owner.
6
<PAGE> 7
ARTICLE IV
ANNUAL BUDGET
Section 4.1 Preparation of Budget: Contents. At least 45 days prior to
the first day of each calendar year during the Term, Manager shall prepare and
submit to Owner a budget (the "Annual Budget") for the Center (other than 1997,
as to which such budget shall be prepared and submitted as soon as practicable
after the date hereof). The Annual Budget shall include, among other matters:
4.1.1 Operating Budget. An operating budget which shall set forth,
among other matters, anticipated operating income, expenses and reserve
requirements for such year. The Annual Budget shall not contain provisions for
costs or expenses required by Schedule 7.1 hereof to be paid by Manager without
reimbursement hereunder. The Annual Budget shall provide for a contingency
amount of at least 5% of the total operating expenditures (exclusive of 'Fixed
Obligations' and any non-cash items) set forth in the "Approved Annual Budget'
(as hereinafter defined) in the aggregate which may be disbursed by Manager to
the extent otherwise permitted hereunder. Obligations (other than "Fixed
Obligations") so incurred by Manager on behalf of Owner in excess of the amount
of such obligations provided for in the Approved Annual Budget and not
specifically otherwise approved by the Owner (except for costs of emergency
matters referred to in Section 5.4) shall be applied against the contingency
amount, and the balance from time to time of such contingency amount is
hereinafter sometimes referred to as the uncommitted portion of the contingency
amount. The term "Fixed Obligations" shall mean obligations for real estate
taxes, debt service and utilities.
7
<PAGE> 8
4.1.2 Capital Budget. A capital budget which shall set forth,
among other matters, anticipated and proposed capital expenditures for such year
and the source of funds in respect thereto.
4.1.3 Leasing Plan. A statement of the space Manager
projects to be leased during such year, the minimum rent and percentage rent it
projects to obtain for such space and the other material economic provisions of
the tenant leases (including, but not limited to, the contributions to ad
valorem taxes, common area expenses and the escalation provisions and any
commissions or similar fees payable by reason of new or existing leases, and all
tenant improvement costs and expenses to be borne by Owner in connection with
tenant leases).
4.1.4 Staffing Plan. A statement of the number, identity and
categories of staffing proposed to be employed on-site by Manager and all
Contractors (either in their own capacity or as agent for Owner), including
salary levels and benefits for each.
Section 4.2 Budget Updates. The Annual Budget for a year shall be
updated on or about the first day of July of such year by Manager to reflect any
changes indicated by the actual results of operations, and such update shall be
submitted to Owner promptly thereafter.
Section 4.3 Approval of Budget. The term "Approved Annual Budget"
shall mean the Annual Budget (as revised by revisions thereof) approved by Owner
and Manager in accordance with the provisions hereof, the Management Agreement
and, to the extent applicable, the LLC Agreement. An Annual Budget or a revision
thereof shall be deemed approved by Manager and Owner only if it is approved in
writing by each of Manager and Owner. Nothing in the Annual Budget submitted by
Manager hereunder shall be binding upon Owner (or any member of Owner) until the
Annual Budget is approved by Owner as aforesaid.
8
<PAGE> 9
Section 4.4 Obligation and Authority to Implement Budget. Manager
shall be authorized, without the need for further approval from either Owner, to
make the expenditures and incur the obligations (other than debt service)
provided for in the most recent Approved Annual Budget for the areas of
responsibility included, as agent for Owner (but only if the Manager acts
substantially in conformance with the Approved Annual Budget, including any
contingency amount provided therein, except relative to emergency work required
under Section 5.4) and to make all expenditures required with respect to real
estate taxes, utilities and debt service (hereinafter "Fixed Obligations").
Manager shall have no authority to, and shall not, make any expenditure or incur
any obligation in excess of the amount set forth in the Approved Annual Budget
for such item (or any uncommitted portion of the contingency amount or relative
to emergency work under Section 5.4) without the prior written approval of Owner
in each instance. It is understood that non-cash items, such as depreciation and
amortization, may be reflected in the Approved Annual Budget and that variances
between the amounts so reflected in the Approved Annual Budget and the actual
amounts of such items shall not affect or limit the amounts of other liabilities
and obligations which Manager may incur and pay on behalf of Owner hereunder
Owner acknowledges and agrees that a portion of the Manager's duties hereunder
shall be delegated to Contractors under one or more separate agreements. Nothing
in this Article IV shall in any manner serve to limit the compensation to which
Manager is entitled pursuant to Article VII of this Agreement.
9
<PAGE> 10
ARTICLE V
THE MANAGER'S SERVICES
Section 5.1 Standard of Performance. Manager agrees, in performing
its duties hereunder directly or indirectly (through one or more Contractors),
to use that level of skill, competence and diligence as is used by first-class
management and leasing firms in the Boston, Massachusetts area with respect to
similar properties. Manager shall, with respect to the Center, perform or cause
to be performed such duties as are customarily performed with respect to similar
properties by such management and leasing firms and, without limitation on the
foregoing, shall perform or cause to be performed those duties set forth in this
Article V.
Section 5.2 Property Accounting: Books and Records. Manager shall
perform, or cause to be performed, customary property accounting services and
shall maintain at the Center or at such other location as Owner shall approve,
the records, books and accounts of Owner with respect to the management and
operation of the Center in accordance with generally accepted accounting
principles and shall retain those records during the Term and, to the extent
Owner does not elect to take possession of the same upon termination of the
Term, for a reasonable period thereafter. Owner shall have the rights set forth
in Section 7.5 with respect to such books and records. The performance of the
duties set forth herein shall be under the direction and control of the
Accounting Supervisor employed by Manager.
Section 5.3 Employment of On-Site Personnel. In addition to a
Property Supervisor, two Property Managers and an Accounting Supervisor, all of
whom shall be employees of Manager, Manager shall engage or shall cause to be
engaged by others , such on-site personnel as may be required for the proper
operation and maintenance of the Center and said parking
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facilities, including, but not limited to, clerical, grounds keeping,
janitorial, parking, maintenance, custodial and management personnel, all of
which shall be employees of the Owner or of Contractors and not employees of
Manager. The Manager or such Contractors shall select, hire, pay (or cause to be
paid), supervise, direct and discharge all such employees and approve and keep
in force workers' compensation insurance (and, when required by law, compulsory
non-occupational disability insurance) covering such employees, subject to any
prior approval by Owner required under the LLC Agreement. The costs of such
personnel shall be reimbursed to Manager by the Owner to the extent provided in
the Approved Annual Budget. At the request of Owner, all employees of Owner or
Manager as hereintofore provided, or of permitted Contractors, charged with the
handling of funds of Owner, shall be covered by fidelity bonds in amounts
reasonably acceptable to Owner.
Section 5.4 Maintenance and Repairs. Manager shall, on behalf of
Owner, maintain the Center in a good, orderly, clean, sanitary and sightly
condition and perform all repairs, maintenance and decorating, and purchase all
supplies necessary for the proper operation of the Center. Without in each
instance obtaining the prior approval of Owner, Manager shall not make any
purchase or do any work, the cost of which is not provided for in the Approved
Annual Budget and which exceeds the then uncommitted contingency amount in the
Approved Annual Budget. Notwithstanding any other provision hereof, and whether
or not the same is provided for in the Approved Annual Budget, Manager may, on
behalf of Owner, make any purchase or do any work in circumstances which Manager
shall in its reasonable judgment deem to constitute an emergency requiring
immediate action for the protection of the Center or of tenants or other persons
or to avoid the suspension of necessary services. and the cost thereof may be
paid from
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the Operating Account and shall not be deemed to commit any portion of said
contingency amount. Manager, in its capacity as such, shall not be required
(without additional compensation satisfactory to the Manager) to undertake the
making or supervision of extensive construction or reconstruction of the Center
or any part thereof.
Section 5.5 Insurance. Manager shall procure and maintain insurance
(in form and with coverages, limits, endorsements, waivers and deductibles and
with insurance companies designated or approved by the Owner, and to the extent
required by any mortgagee of the Center), naming the Owner, the Manager, the
members of the Owner, and and (where appropriate in Manager's discretion or at
Owner's direction, any Contractors), as named insureds thereunder, provided,
that, such insurance shall at a minimum include the following:
(a) All-Risk Insurance. Insurance against loss or damage to the
Center by fire and any of the risks covered by insurance of the type now known
as broad from "all risk" coverage (including theft coverage) in an amount not
less than the full replacement cost of the Center, without deducting for
physical depreciation; such insurance to include a "Replacement Cost
Endorsement," together with (i) a stipulated value or agreed amount endorsement
deleting the coinsurance provision of such policy or policies of insurance, (ii)
a waiver of subrogation endorsement, (iii) coverage for demolition, (iv) an
endorsement for increased cost of construction, occasioned by operation of any
law or ordinance regulating the construction, use or repair of the Center, and
(v) if such insurance is not part of a blanket program, such other endorsements
as may be requested by Owner.
(b) Public Liability Insurance. Automobile liability insurance
covering owned, hired and non-owned vehicles, with separate coverage and with
liability limits of not less than
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$5,000,000 combined single limit. Commercial General Liability Insurance
coverage with a minimum combined single limit of at least Five Million Dollars
($5,000,000) and a general aggregate limit of Fifteen Million Dollars
($15,000,000), with broad form property damage coverage.
(c) Rental Income Insurance. Business interruption and/or loss of
rental value insurance in an amount not less than 100% of the projected rental
income from the Center for 12 months. The perils insured against under such
insurance shall be the same as provided in subsection (a) above, and such
insurance shall not have a co-insurance or contribution clause.
(d) Mandatory Insurance. Workers' compensation, including employer's
liability, with a limit of not less than One Million Dollars ($1,000,000) and
all other insurance required by any ordinance, law or governmental regulation or
by any of Owner's lenders.
(e) Boiler and Machinery Insurance. Mechanical breakdown insurance
(also known as "boiler and machinery" insurance) covering pressure vessels, air
tanks, boilers, machinery, pressure piping, heating, air conditioning and
elevator equipment and escalator equipment and insurance against loss of
occupancy or use arising from any such breakdown, in such amounts and with such
deductibles as are reasonably satisfactory to Manager.
All insurance coverage required to be provided by the foregoing
provisions of this Section 5.5 shall provide for thirty (30) days' notice of
cancellation or material change and be placed with such carriers and through
such insurance broker or agency as Owner or Manager may from time to time
hereafter designate; provided, however, that such insurance shall continue to be
carried under the existing blanket coverage policies in which the Center
currently participates, through May 31, 1997.
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Section 5.6 Collection and Disbursement of Revenue. Manager shall
collect rent and all other revenue from the Center and deposit the same (other
than security deposits) promptly in an interest-bearing bank account (the
"Operating Account") established by Manager, which account shall be maintained
by Manager in trust for the Owner. As further set forth elsewhere in this
Agreement, Owner and Manager (and, to the extent agreed by Owner and Manager,
one or more Contractors) shall be entitled to draw upon such Operating Account,
but all such money shall be deemed to be the property of Owner. Such monies of
Owner shall not be commingled with the funds of Manager. Manager may withdraw
from the Operating Account (subject to the limitations set forth in this
Agreement) disbursements required or permitted to be made under this Agreement;
provided, however, that except as otherwise agreed in writing by Owner,
disbursements by Manager out of the Operating Account shall be limited (subject
to the emergency expenditures provision in Section 5.4 hereof, and except for
the uncommitted portion of the contingency amount and except as otherwise
provided for herein) to the purposes set forth in the Approved Annual Budget and
to the amounts for such purposes which do not exceed the corresponding sums
allocated to the same in the Approved Annual Budget and to the payment of Fixed
Obligations. Notwithstanding anything in this Agreement to the contrary, to the
extent payment for any capital expenditures out of the Operating Account would
violate the provisions of the LLC Agreement, Manager shall not expend the sums
required therefor without the prior written consent of Owner, and to the extent
applicable, unless Owner has provided Manager with any necessary additional
funds therefor. Manager shall render monthly reports to the Owner, in such form
as is reasonably acceptable to Owner, showing all receipts and disbursements for
the preceding calendar month (and, if requested by Owner, will make available to
Owner for its
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inspection, and will permit Owner to make copies of, bills, invoices and other
information in connection therewith), on or before the 25th day of each month,
and remit to Owner, with such monthly reports, all amounts in the Operating
Account, except a reasonable working capital balance not to exceed $750,000 (or
any greater amount determined by Owner).
Section 5.7 Security Deposits. Manager shall deposit, or cause to be
deposited, all security deposits for the Center in a separate interest-bearing
project account (the "Security Account") in the name of Owner on which any of
Owner and Manager (and, to the extent agreed by Owner and Manager, one or more
Contractors) may draw. Manager shall be authorized to withdraw monies from the
Security Account at such time as the security deposits are returnable to tenants
or in the event of a tenant default (in which case such monies shall be
deposited by Manager into the Operating Account). It is expressly understood and
agreed that all disbursements, transfers and refunds made by Manager from the
Security Account shall be made by a check drawn on the Security Account or
appropriate journal or bookkeeping entries and shall be substantiated by
appropriate records and accounting procedures. The funds in the Security
Account, or the amount thereof requested by Owner, shall be delivered to Owner
upon Owner's request.
Section 5.8 Payments. Except as otherwise directed from time to time
by Owner, Manager shall make or cause to be made (but only to the extent of
funds in the Operating Account or to the extent Owner otherwise provides to
Manager the funds therefor) the payment when due of all obligations, the
existence of which was approved by the Owner or which was incurred in accordance
with the provisions hereof, including, without limitation, (a) all taxes,
assessments and other levies imposed in connection with the Center or the
operation thereof, (b)
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all debt service payments, (c) all charges (other than those for which the
tenants under leases shall be directly responsible to the utility company) for
or related to water, electricity, telephone service or other commodities or
services furnished to the Center or any part thereof during the Term, and (d)
all charges for insurance required to be maintained hereunder, and (e) all fees
and reimbursable expenses of Contractors duly incurred.
Section 5.9 Compliance
5.9.1 In General. Manager shall use reasonable efforts at the
cost of Owner to cause Owner and the Center to be in compliance with all laws
applicable to the Center or any part thereof and to cause tenants of the Center
to comply with all material covenants, conditions, restrictions, limitations and
requirements of every kind or nature which relate to the Center or any part
thereof or which are imposed by any lease, contract or instrument to which the
Center or Owner is now subject or hereafter becomes subject. Manager shall
promptly notify Owner of any failure to so comply, including violations relative
to the leasing, use, repair and maintenance of the Center under governmental
laws, rules, regulations, ordinances or like provisions, of which Manager
receives notice or knowledge. Section
5.10 Contracts and Leases.
5.10.1 Service Contracts. Manager may, as agent for Owner,
without the prior written consent of the Owner, to the extent the obligations of
Owner thereunder do not exceed the amounts provided for in the Approved Annual
Budget or the then uncommitted portion of the contingency amount (or for
emergency work under Section 5.4), negotiate and enter into (or cause to be
entered into) contracts for electricity, gas, fuel, water, telephone, window
cleaning, ash or rubbish hauling, parking services, vermin extermination,
maintenance and engineering
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services, janitorial and custodial services, landscape maintenance and such
other supplies. services and other matters for the Center as Manager shall
reasonably determine to be advisable, each for terms no longer than one year,
and for escalator and elevator maintenance services and for equipment leases
each for terms no longer than five years, provided that the obligations of Owner
under all of the foregoing during the then-current year do not exceed the
amounts contemplated therefor in the Approved Annual Budget and the obligations
of Owner thereunder for subsequent periods do not, in Manager's good faith
judgment, exceed the fair market value of the services to be provided to Owner
pursuant to such contracts.
5.10.2 Leases. Subject to the subsequent provisions of this
Section, Manager shall use diligent efforts to market for lease and rent, and
keep rented, by actively seeking out on both a national and local basis, and
procuring, tenants for the rentable space at the Center in accordance with the
Approved Annual Budget (including the Leasing Plan which is a part thereof).
Without limitation on the foregoing, Manager shall negotiate, on behalf of
Owner, in accordance with the Approved Annual Budget (or otherwise approved by
Owner in writing), all leases and other agreements for space in the Center,
together with any amendments, cancellations, renewals or extensions thereof (all
such leases, agreements, amendments, cancellations, renewals or extensions now
existing or hereafter entered into being herein individually and collectively
referred to as a "Lease" or "Leases"). Manager shall, without the prior written
consent of Owner, have the right to execute, on behalf of the Owner and in the
name of Nominee (or as directed by Owner), any Lease (other than an amendment or
cancellation), provided such Lease (a) shall be on the most recent standard form
approved by Owner (with only immaterial changes thereto), (b) shall be no less
favorable in any material
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respect to the Owner than a lease which was within the parameters set forth in
Leasing Plan included with the Approved Annual Budget, as the same may be
amended or supplemented, so long as the execution of such lease shall not
require the prior consent of the Non-Managing Member of Owner pursuant to
Section 5.1 B(9) of the LLC Agreement, and (c) shall otherwise comply with the
requirements hereof, if any. Manager shall have the right, without the prior
written consent of Owner, to execute, on behalf of Owner and in the name of
Nominee (or as directed by Owner), a cancellation of any Lease, provided that
Manager, at or about the time of such cancellation, executes (as permitted by
the provisions hereof [including, without limitation, compliance with the
Leasing Plan included with the Approved Annual Budget]) one or more new Leases
for substantially all of the space which was subject to such canceled Lease.
Manager shall, without the prior written consent of Owner, have the right to
execute on behalf of Owner and in the name of Nominee (or as directed by Owner),
an amendment to any Lease which, if such Lease, as amended, were anew Lease,
Manager could execute on behalf of Owner without the prior written consent of
Owner. Copies of each Lease shall be delivered to Owner by the Manager within 10
days after its execution. If any Lease, operating agreement or other document or
instrument affecting the Center requires the consent of a third party to a
proposed Lease, Manager will not, without Owner's prior written consent, in each
instance, execute such proposed Lease without obtaining such third-party
consent. Each Lease will set forth expressly any provision required to be set
forth in the same under the provisions of the air rights or other leases or
subleases governing, from time to time, the Center or any part thereof. Manager
shall perform, or cause to be performed, any necessary tenant coordination
services with respect to any such lease. Without Owner's prior written consent,
Manager may hire brokers and other
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representatives for the leasing of space in the other portions of the Center, as
agent for Owner. as Manager determines to be in the best interest of Owner, so
long as the expected cost thereof is included in the Approved Annual Budget.
5.10.3 Other Contracts. Manager, in its capacity as such,
shall not enter into any other contract or agreement on behalf of Owner, unless
the same is consented to in writing in advance by Owner or unless the contract
or agreement is in the ordinary course of business and the amount of Owner's
obligations incurred thereunder do not exceed the amounts therefor in the
Approved Annual Budget, or the then uncommitted portion of the contingency
amount.
Section 5.11 Legal Action. Manager shall, on behalf of and at
the cost of Owner, institute (or cause to be instituted) all necessary legal
action or proceedings for the collection of rent or other income from the
Center, or for the ousting or dispossessing of tenants or other persons
therefrom so long as the subject matter of such legal action or proceeding does
not involve an expense to or actual or potential liability of Owner in excess of
$5,000,000, and, to the extent directed by Owner in writing, for all other
matters requiring legal attention. Notwithstanding the foregoing, Manager shall
give Owner written notice of its intention to file any lawsuit for any of the
foregoing matters other than for the collection of rent, at least five days
before it files such lawsuit. In addition, Manager shall promptly notify Owner
of any lawsuit or threat thereof involving or affecting the Center of which
Manager receives notice or knowledge.
Section 5.12 Tenant Requests. Manager shall receive and
respond to complaints and requests of tenants. Systematic records shall be
maintained showing the action taken with respect to each complaint or request.
Complaints or requests of a material nature shall, after investigation of such
complaints by Manager, be promptly reported in writing by Manager to
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Owner. Manager shall include in such written report to Owner all relevant
details and appropriate recommendations.
Section 5.13 Impounds and Capital Reserves. In the event that under
the terms or provisions of any mortgage to which the Center is subject, the
mortgagor is required to deposit in installments an amount against or based upon
taxes, insurance premiums or other sums, then, to the extent Owner provides the
funds therefor, Manager shall make such deposits.
Section 5.14 Security. Manager shall provide, or cause to be
provided security personnel and services for the Center (either directly or on
through approved Contractors), and such devices and programs with respect
thereto, as Manager reasonably believes is necessary for the safety of visitors
to the Center and to the extent provided for in the Approved Annual Budget. Such
services shall not include any responsibility for the protection of property.
Manager and Owner hereby each acknowledge and agree that such safety or security
services, devices and programs provided by Manager or any Contractor, while
intended to deter crime and enhance safety, may not in given instances prevent
theft or other injurious acts or ensure safety of parties or property and that
Manager assumes no liability to Owner or any other person or entity for the
failure or circumvention thereof. Owner agrees to cooperate in any safety or
security program developed or implemented by Manager or any Contractor
hereunder.
Section 5.15 Marketing: Customer and Visitor Services: Public
Relations. To the extent provided for in the Approved Annual Budget, Manager
shall provide marketing, customer service, concierge information, public
relations, advertising and promotional services for the retail portion of the
Center.
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ARTICLE VI
BEARING OF EXPENSES: PAYMENT OF COMPENSATION
Section 6.1 Use of Operating Account. To the extent there are
adequate funds' available therein, the Operating Account shall be used to pay
any and all direct or indirect expenses or Reimbursable Costs (as defined in
Schedule 7.1) of Owner relative to the operation of the Center. This shall
include, without limitation, those costs and expenses incurred by Manager on
behalf of Owner hereunder to the extent authorized herein. The right of Manager
to withdraw funds from the Operating Account for the purposes set forth herein
IS a material inducement to Manager to enter into this Agreement, and is a
material factor in Manager's ability to perform hereunder. Therefore, Owner
hereby agrees that, until the termination of this Agreement as set forth herein,
appropriate representatives of Manager shall have authority to withdraw funds
from the Operating Account for the payment of such direct expenses and
Reimbursable Costs. Manager hereby acknowledges and agrees that Owner shall also
have concurrent authority to withdraw funds from the Operating Account for
similar purposes. Owner and Manager may also agree to give such concurrent
authority to one or more Contractors.
Section 6.2 Payment of Manager's Compensation. The compensation
of Manager provided in Article VII hereof shall be payable as follows. On or
before the fifth day of each calendar month, Manager shall be entitled to the
compensation determined under Article VII with respect to the payments received
by or on behalf of the Owner during the preceding calendar month. In addition,
the Manager shall be entitled to reimbursement for any Reimbursable Costs
immediately upon incurring them on behalf of Owner. Owner hereby
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agrees that Manager may disburse such compensation and Reimbursable Costs to
itself during the term hereof, net of any credits against such compensation to
which Owner is then entitled.
Section 6.3 No Obligation To Advance Funds. Owner hereby agrees that
any excess of the compensation, Reimbursable Costs and other costs and expenses
payable to, or incurred by Manager, on behalf of Owner in discharging its
obligations and duties hereunder; over the balance available in the Operating
Account for the satisfaction thereof shall be borne solely by Owner, and Manager
shall not be obligated to advance its funds therefor, except for those expenses
which are to be borne solely by Manager as set forth in Schedule 7.1. To the
extent Owner fails to make funds available to Manager for the payment of such
items, Manager shall be excused from such performance. hereunder as relates to
such failure, provided that the foregoing shall in no event excuse Owner from
its obligation to pay Manager the compensation set forth in Article VII hereof
ARTICLE VII
COMPENSATION
Section 7.1 Basic Compensation. As compensation for performing the
Services described herein during the entire term, Owner shall pay Manager a fee
as set forth in Schedule 7.1 hereof, herein incorporated by this reference, as
it may be amended by the written agreement of the parties from time to time.
Section 7.2 The Manager's Office. Manager shall rent not less than
3000 rentable square feet of space in the Center to serve as the on-site
management office (the "Center Office"). The reasonable cost of furnishing and
equipping, and the direct costs (other than compensation of employees of the
Manager) of operating the Center Office, including, without
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limitation, utilities, telephone and office supplies, shall be borne solely by
Owner, and shall be limited to the extent provided for in the Approved Annual
Budget except as otherwise approved by Owner. Manager shall pay Owner rent for
such Center Office in a monthly amount which is equivalent to the rent which
would be reasonably expected to be paid to Owner therefor by an unrelated third
party for the space in question as such amount increases or decreases from time
to time. Subject to the foregoing, at Owner's election, Manager shall execute
and deliver to Owner a lease on Owner's standard lease form, and Manager shall
be entitled to no rent concessions or tenant improvement allowance with respect
thereto. Manager may not terminate any such lease (whether written or oral) or
cease to pay rent in accordance herewith except upon the termination of this
Agreement. Manager may cause the Center Office to be relocated within the Center
from time to time, at Owner's sole cost and expense, as reasonably necessary to
accommodate the leasing and business requirements of the Center. The rent is
payable by Manager hereunder as agent for Owner and shall be an operating
expense of the Center.
Section 7.3 Reimbursement Costs. Manager may pay directly out of the
Operating Account, or shall be reimbursed by Owner for the Reimbursable Costs
set forth in Schedule 7.1 and other direct and indirect costs and expenses of
Owner, to the extent such costs are authorized to be incurred by Manager
hereunder, such payment or reimbursement to be made as set forth in Section 6.2
above.
Section 7.4 No Other Compensation. Manager shall receive no
compensation or reimbursement of any kind or nature for or during the Term for
services performed under this Agreement, except as otherwise expressly provided
in this Agreement. Without limitation on the generality of the foregoing, (1) no
leasing commissions shall be payable to Manager, and (2) if
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Manager, in its capacity as such, performs any special service or work for a
tenant not required hereunder, Manager's profit shall belong to Owner.
Section 7.5 Audit. Notwithstanding anything in this Agreement to the
contrary, Owner and its respective representatives shall have the right at any
time, upon three (3) days prior written notice to Manager, to audit any of the
books and records of Owner maintained by or for Manager, including any expenses
or payments made or revenue or other payments received by or on behalf of Owner
with respect to this Agreement or the Center, and Manager agrees to surrender
such books and records to Owner upon the termination hereof; provided, however,
that Manager shall be entitled to retain a copy thereof.
ARTICLE VIII
MISCELLANEOUS
Section 8.1 No Joint Venture. This Agreement shall not be construed
as effecting a partnership or joint venture between Owner and Manager.
Section 8.2 Successors and Assigns. This Agreement shall be binding
upon and inure to the benefit of the parties hereto and their respective
successors and assigns, provided that Manager shall not be entitled to assign
this Agreement without the prior written consent of Owner, except to an
Affiliate (as defined in Schedule 7.1) or to the extent permitted under Section
3.1 or Schedule 7.1.
Section 8.3 Owner Indemnity. Owner shall protect, defend, indemnify
and hold Manager harmless from and against any and all loss, cost, damage,
liability and expense (including court costs and reasonable attorneys' fees)
arising out of the performance by Manager of its obligations and duties
hereunder, it being expressly understood that Owner does not hereby
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agree to, and shall not, so indemnify Manager from any such loss, cost, damage,
liability or expense arising out of the act or omission of Manager or any of its
agents, employees or other representatives which is grossly negligent, tortious
(excluding ordinary negligence), in breach of this Agreement or outside the
scope of Manager's authority as provided herein.
Section 8.4 Manager Indemnity. To the extent they shall not be
compensated for the same by insurance proceeds, Manager shall protect, defend,
indemnify and hold Owner, the members of Owner and the Center harmless from and
against any and all loss, cost, damage, liability and expense (including court
costs and reasonable attorneys' fees) arising out of the failure of Manager or
any of its agents, officers, employees or representatives to comply with or
perform Manager's duties and obligations under this Agreement in accordance with
the terms hereof or by reason of any act or omission of Manager or any of its
agents, officers, employees or representatives which is grossly negligent,
tortious (excluding ordinary negligence) or outside the scope of Manager's
authority as provided herein.
Section 8.5 Cumulative Remedies. The rights and remedies of the
parties hereto shall not be mutually exclusive, i.e., the exercise of one or
more of the provisions hereof shall not preclude the exercise of any other
provision hereof. However, Manager shall not be liable to Owner hereunder for
ordinary negligence.
Section 8.6 Attorneys' Fees. If either party obtains a judgment
against the other party by reason of breach of this Agreement, a reasonable
attorneys' fee, as fixed by the court, shall be' included in such judgment.
Section 8.7 No Waiver. Time is of the essence of this Agreement. No
waiver by either party of any default of the other party or of any event,
circumstance or condition
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permitting a party to terminate this Agreement shall constitute a waiver of any
other default of the other party or of any other event, circumstance or
condition permitting such termination, whether of the same or of any other
nature or type and whether preceding, concurrent or succeeding; and no failure
on the part of either party to exercise any right it may have by the terms
hereof or by law upon the default of the other party and no delay in the
exercise of such right shall prevent the exercise thereof by the nondefaulting
party at any time when the other party may continue to be so in default, and no
such failure or delay and no waiver of default shall operate as a waiver of any
other default, or as a modification in any respect of the provisions of this
Agreement. The subsequent acceptance of any payment or performance pursuant to
this Agreement shall not constitute a waiver of any preceding default by a
defaulting party or of any preceding event, circumstance or condition permitting
termination hereunder, other than default in the payment of the particular
payment or the performance of the particular matter so accepted, regardless of
the nondefaulting party's knowledge of the preceding default or the preceding
event, circumstance or condition, at the time of accepting such payment or
performance, nor shall the nondefaulting party's acceptance of such payment or
performance after termination constitutes a reinstatement, extension or renewal
of this Agreement or revocation of any notice or other act by the nondefaulting
party.
Section 8.8 Integration: Amendment. This Agreement, including the
exhibits attached hereto, constitutes the entire agreement between the parties
hereto relative to the subject matter hereof. Any prior negotiations,
correspondence or understandings relative to the subject matter hereof shall be
deemed to be merged in this Agreement. This Agreement may not be amended or
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modified except in writing, executed by each of the parties hereto. No waiver of
any provision of this Agreement shall be effective unless signed by the party
against whom the waiver is asserted.
Section 8.9 Governing Law. This Agreement shall be governed by, and
construed in accordance with, the laws of the Commonwealth of Massachusetts.
Section 8.10 Notices. All notices and other communications
provided for in this Agreement shall be in writing and may be personally
delivered or mailed by certified or registered United States mail, return
receipt requested, postage prepaid and addressed as follows:
(a) If to the Owner, to:
Copley Place Associates LLC
c/o Overseas Partners Capital
Corp. 115 Perimeter Center Place
Suite 940
Atlanta, GA 30346-1223
Attn: Legal Department
with a copy to:
Overseas Partners, Ltd.
Craig Appin House
P.O. Box HM 1581
8 Wesley Street
Hamilton HM GX Bermuda
Attn: Bruce M. Barone, President
with a copy to:
JMB Realty Corporation
900 North Michigan Avenue
Chicago, IL 60611, Suite 1900
Attn: Legal Department
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(b) If to the Manager, to:
Overseas Management, Inc.
115 Perimeter Center Place
Suite 940
Atlanta, GA 30346-1223
Attn: Legal Department
with a copy to:
Overseas Partners, Ltd.
Craig Appin House
P.O. Box HM 1581 8
Wesley Street
Hamilton HM GX Bermuda
Attn: Bruce M. Barone, President
or to such other address as any party shall hereafter designate by notice to the
others as herein provided. Any notice, demand or request shall be effective upon
receipt.
Section 8.11 Captions. The paragraph headings herein contained are
for purposes of identification only and shall not be considered in construing
this Agreement.
Section 8.12 Limitation of Liability. No present or future member of
Owner shall have any personal liability, directly or indirectly, under or in
connection with this Agreement or any agreement made or entered into under or in
connection with 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
Manager hereby waives any and all such personal liability. The limitations of
liability provided in this paragraph are in addition to, and not in limitation
of, any limitation on liability applicable to Owner provided by law or by any
other contract, agreement or instrument.
Section 8.13 Inspection by the Owner. Neither this Agreement nor
anything contained herein shall be deemed to limit Owner's right to enter upon
or inspect the Center or to perform
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any repair or maintenance or to do or perform any matter or thing required
of Manager hereunder in the event of Manager's failure to do so, and,
without limitation of Owner's other rights as owner of the Center, Owner
shall have the right to do any or all of the foregoing in the event of
such failure.
Section 8.14 Counterparts. This Agreement may be executed in several
counterparts, each of which shall be deemed an original, but all of which
shall constitute one and the same document.
IN WITNESS WHEREOF, the parties hereto have duty executed this
Agreement on the day and year first above written.
COPLEY PLACE ASSOCIATES, LLC
a Delaware limited liability company
By: Overseas Partners Capital Corp.
a Delaware corporation,
Managing Member
By: /s/ Bruce M. Barone
----------------------------
Its President
----------------------------
"Owner"
OVERSEAS MANAGEMENT, INC.,
a Delaware corporation,
By Bruce M. Barone
---------------------------------
Its President
---------------------------------
"Manager"
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Schedule 7.1
Compensation
As compensation for the Services provided under that certain Management
Agreement (the "Agreement") to which this schedule is attached, Manager shall be
entitled to receive a percentage fee (the "Percentage Fee"). In addition,
without limiting Manager's rights, duties and obligations to incur and to pay
other costs and expenses of Owner from the Operating Account as provided in the
Agreement, the Manager shall be entitled to pay directly from the Operating
Account (or to the extent paid out of the Manager's own funds, to reimburse
itself directly from the Operating Account) for certain costs incurred by
Manager on behalf of the Owner (the "Reimbursable Costs').
Percentage Fee
The Percentage Fee shall be equal to the sum of the following with respect to
the revenues derived by Owner with respect to the Center:
(i) Six percent of gross revenues derived from the operation of, or
received pursuant to rent or business interruption insurance with
respect to, parking facilities in the Center leased or operated by
the Owner; plus
(ii) Two and one-half percent of all amounts paid by tenants under, or
received pursuant to rent or business interruption insurance with
respect to, leases relating primarily to office space, including,
without limitation, base rent, escalated rent based upon the
Consumer Price Index or any other standard, payments to amortize
tenant work, and payments with respect to real estate taxes,
insurance, repairs, maintenance, utilities and other operating
expenses and payments for special services; plus
(iii) (a) Three percent of all amounts paid by tenants under, or received
pursuant to rent or business interruption insurance with
respect to, all other leases, including, without limitation,
base or minimum rent, escalated rent, rent based upon sales or
receipts, and payments to amortize tenant work; plus
(b) Fifteen percent of all amounts collected under such other
leases as common area charges (including, without limitation,
charges for common area heating, ventilating and air
conditioning), including in such common area charges amounts
charged to tenants for managing and supervising the common
area and of amounts collected from third parties as
reimbursement for costs of maintaining and operating
facilities shared with such third parties.
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Reimbursable Costs
Reimbursable Costs are the following costs, to the extent such costs are
provided for in the Approved Annual Budget, are allocable to the Center (such
allocation being determined on a reasonable and fair basis) and are incurred as
the Manager hereunder rather than in any other capacity (such as, for example, a
member of Owner): (a) the cost of the Manager's on-site computer/word processing
facilities; (b) the compensation and fringe benefits of the secretaries in said
on-site office; (c) travel (including transportation, lodging and meals) and
entertainment costs; (d) the "Allocated Overhead Compensation Cost" (as defined
below) of the Manager's and its Affiliates' officers and employees incurred in
connection with the Manager's leasing activities hereunder or in working with or
developing relationships with governmental or quasi-governmental authorities and
personnel or tenants or department stores; (e) the Allocated Overhead
Compensation Cost of the Manager's and its Affiliates' officers and employees
and all amounts paid to third parties in connection with architectural and
engineering design, plan review, supervision and inspection, both on- and
off-site, relating to tenant spaces in the Center and on-site review and
supervision of construction of landlord's and tenant's work relating to tenant
spaces; (f) the Allocated Overhead Compensation Cost of the Manager's and its
Affiliates' officers and employees, and all amounts paid to third parties in
connection with legal assistance, in drafting, negotiating and executing leases
for space in the Center and for development of form leases, criteria and manuals
for the Center; (g) expenses incurred in connection with real estate or property
tax consulting (including preparation of documents related thereto), in effort
to maintain or reduce taxes applicable to or against the Center or the Owner;
and (h) the Allocated Overhead Compensation Cost of the Manager's and its
Affiliates' officers and employees, and the expenses, both direct and indirect,
incurred relative to on- and off-site marketing and promotional services
rendered or contracted for by the Manager for the Center. As used in this
Schedule 7.1, "Allocated Overhead Compensation Cost' shall mean that percentage
of the compensation of an employee which the Manager customarily charges to
projects to reflect the compensation and benefits of such employee and the
overhead attributable to such employee [as of the date hereof, such percentage
is approximately 260%]. As used in this Schedule 7.1, "Affiliate" shall mean
any entity or individual controlling, controlled by or under common control with
Manager. Except as expressly provided above, in no event shall the Owner be
required to pay, or shall the Manager be entitled to any reimbursement for:
(i) the Manager's off-site overhead, office or administrative expenses;
(ii) the cost of gross salary and wages and other compensation, payroll
taxes, insurance, workers' compensation, pension benefits and any
other benefits of the Manager's home office personnel; and
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(iii) the cost of general accounting and reporting services provided by
the Manager from any off-site office, it being further understood
that the fees and expenses of any independents accountable shall be
borne by Owner.
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EXHIBIT 10.ppp
MANAGEMENT AND LEASING FEE SUBORDINATION AGREEMENT
THIS MANAGEMENT AND LEASING FEE SUBORDINATION AGREEMENT ("Agreement") is
dated as of the 23 day of January, 1997, by and among COPLEY PLACE ASSOCIATES,
LLC, a Delaware limited liability company ("Copley"), COPLEY PLACE ASSOCIATES
NOMINEE CORPORATION, a Delaware corporation, the sole shareholder of which is
Copley ("Nominee"; Copley and Nominee are hereinafter referred to individually
and collectively as "Owner"), COPLEY FUNDING CORPORATION, a Delaware corporation
("Funding"), COPLEY FINANCING CORPORATION, a Delaware corporation ("Financing"),
THE AETNA CASUALTY AND SURETY COMPANY, a Connecticut corporation ("Aetna"), and
OVERSEAS MANAGEMENT, INC., a Delaware corporation ("Manager").
RECITALS
WHEREAS, Owner is the owner of a leasehold interest in the property and
all improvements thereon encumbered by the "Loan Documents" (as defined below)
(collectively, the "Property"); and
WHEREAS, Copley Place Associates, an Illinois general partnership ("Copley
Partnership"), as predecessor-in-interest to Copley, executed and delivered the
loan documents described in "A" attached hereto (collectively, the "Loan
Documents"). Unless otherwise defined herein, all capitalized terms used in this
Agreement shall have the meaning set forth in Exhibit "A". The loan evidenced
and secured by the Loan Documents being hereinafter referred to as the "Loan";
and Aetna, as holder of the Loan Documents, and any and all subsequent holders
of the Loan Documents shall be referred to herein as the "Holder"; and
WHEREAS, Urban Retail Properties, Co., a Delaware corporation ("URPC"), as
successor in interest to JMB Properties Urban Company, an Illinois general
partnership ("JMB Properties") and Copley Partnership have terminated that
certain Management Agreement, dated as of September 1, 1983 (the "Prior
Management Agreement"); which such termination was made with the consent of
Aetna and which such termination is effective as of the date hereof; and
WHEREAS, after the termination of the Prior Management Agreement, Copley
Partnership was merged into Copley on the date hereof with the consent of Aetna.
WHEREAS, after the merger of Copley Partnership into Copley, Overseas
Partners Capital Corp., a Delaware corporation ("Overseas"), purchased 66-2/3%
of the membership interests in Copley, and Overseas was admitted as the managing
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member of Copley with the consent of Aetna (the "Purchase Transaction"); and
WHEREAS, immediately after the Purchase Transaction and with the consent
of Aetna, Owner and Manager entered into that certain Management Agreement dated
as of the date hereof, a copy of which is attached hereto as Exhibit "B" (as
renewed, extended, amended or delegated in accordance with the terms hereof, the
"Management Agreement"), to provide for the management of the Property, which
Management Agreement provides for the payment of certain fees to Manager for the
management of the Property; and
WHEREAS, it was a condition to Aetna's consent to the foregoing
transactions that Manager, as an affiliate of Overseas, agree to accept payment
of management fees and leasing commissions under the Management Agreement as set
forth herein, and Owner and Manager agree to the payment and acceptance of
management fees and leasing commissions under the Management Agreement as set
forth herein.
NOW, THEREFORE, in consideration of the foregoing recitals and for other
good and valuable consideration, the receipt and adequacy of which are hereby
acknowledged, Owner, Funding, Financing, Manager and Aetna hereby agree as
follows:
1. Management Fee Deferral and Payment Subordination. No 'Percentage Fee"
(as defined in Schedule 7.1 of the Management Agreement) payable pursuant to
Section 7.1 of the Management Agreement (collectively, the "Management Fees")
nor any leasing commissions payable to Owner, Manager or any affiliate thereof
relating to leases of space in the Property ("Leasing Commissions") shall be
paid to Owner, Manager or any affiliate thereof out of Proceeds (as hereinafter
defined) until Holder has received all amounts due Holder under the Loan
Documents and the rights of Owner, Manager or any affiliate thereof to payment
of such Management Fees or Leasing Commissions shall be subject and subordinate
to Holder's rights to payment under the Loan Documents as provided herein. All
Management Fees and Leasing Commissions shall be deferred and shall be payable
to Manager as provided in Section 10 hereof. In addition, until Holder has
received all amounts due to Holder under the Loan Documents, no costs and
expenses incurred by Manager under the Management Agreement which are
reimbursable by Owner thereunder (including "Reimbursable Costs", as defined in
Schedule 7.1 of the Management Agreement) shall be paid by Owner to Manager out
of the Proceeds unless such payments or reimbursements are in accordance with
the Budget (as such term is defined in the Loan Documents), and Manager's rights
to reimbursement of such costs and expenses shall be subject and subordinate to
Holder's rights to payment under the Loan Documents except to the extent such
payments or reimbursements are in accordance with the Budget.
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Payment of Management Fees and Leasing Commissions and reimbursement of such
costs and expenses from sources other than the Proceeds is not restricted. This
Agreement shall not be deemed to prohibit the hiring by Owner or Manager of
non-affiliated third party leasing agents with regard to leasing the Property,
or the payment of market rate fees or commissions to such leasing agents from
the Proceeds. The term "Proceeds" shall mean and refer to total income,
revenues, rentals, proceeds from sale or refinance, and other consideration
received by or for the account of Owner or any affiliate thereof relating to the
Property (which shall include income from any source, including proceeds of
casualty insurance not used to make repairs to the Property and not applied in
reduction of the outstanding principal balance of the Loan, but which shall
exclude the capital contributions made by the members in Owner).
2. Performance by Manager. Subject to paragraph 11 hereof, until the
earlier of (a) payment of the Loan in full, or (b) six (6) months after Owner
ceases to pay the scheduled payments under the Note (but in no event later than
one hundred and twenty (120) days after maturity of the Loan (whether by
acceleration or otherwise), Manager agrees to continue to perform all of its
obligations under the Management Agreement in accordance with its terms and
subject to all rights (including termination rights) of Manager thereunder,
notwithstanding that the provisions of this Agreement may prohibit or restrict
the payment of any Management Fees or Leasing Commissions thereunder. Subject to
the foregoing, no election by Owner or Manager to terminate the Management
Agreement shall become effective unless and until Owner has obtained Holder's
prior written consent to undertake Manager's property management functions or a
replacement manager has been appointed by Owner with Holder's prior written
consent, which consent may be withheld in Holder's sole and absolute discretion.
3. Trust for Prohibited Payments. Neither Manager nor any affiliate
thereof shall accept or receive any Management Fees or Leasing Commissions, nor
any reimbursement of costs and expenses from Owner if the payment of such
Management Fees or Leasing Commissions, or reimbursements of costs or expenses,
is prohibited by this Agreement. If Manager accepts or receives any payment of
Management Fees or Leasing Commissions, or reimbursements of costs or expenses,
which is prohibited under this Agreement, Manager shall segregate such
Management Fees, Leasing Commissions, or reimbursements of costs and expenses
from all other funds and shall hold such Management Fees, Leasing Commissions,
or reimbursements of costs or expenses in trust for the benefit of Holder and
immediately pay such amounts to Holder at its address indicated by the Loan
Documents.
4. Rights of Holder. Without limiting Holder's rights and remedies at law
or in equity, Holder may enforce this Agreement against Owner, Manager and any
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affiliate thereof, by injunction or action for specific performance. No right or
remedy of Holder in connection with this Agreement shall be prejudiced or
impaired in any way by any act or failure to act by Holder and, without limiting
the foregoing, Holder may, at any time and from time to time, without the
consent of or notice to Manager or any affiliate thereof and without impairing
or releasing the subordinations described herein, do any one or more of the
following: (a) change the manner, place or terms of payment of, or renew or
alter the Loan; (b) sell, exchange, release or otherwise deal with any property
pledged, mortgaged or otherwise securing the Loan; (c) release any person or
entity liable for the Loan; or (d) exercise or refrain from exercising any
rights or remedies against Owner or the Property under the Loan.
5. Representations and Warranties. Owner hereby represents and warrants to
Holder that the Management Agreement is the only agreement entered into by Owner
which provides for the management of all or any part of the Property, other than
the Agreement for Purchase of Consulting and Other Services, dated as of the
date hereof, by and between Manager and URPC (the "Consulting Agreement"), and
contracts for management of the parking facility which is a portion of the
Property with unaffiliated third parties ("Parking Management Agreements"), and
that no fees or charges are payable by Owner relating to the management of the
Property other than as required by the Management Agreement, the Consulting
Agreement or the Parking Management Agreements. Manager hereby represents and
warrants to Holder that the Management Agreement is the only agreement entered
into by Manager (other than the Consulting Agreement and the Parking Agreements)
which provides for the management of all or any part of the Property and that no
fees or charges are due to Manager relating to management of the Property other
than as described in the Management Agreement. Owner and Manager hereby
represent and warrant to Holder M that Manager has received, reviewed and
approved all of the Loan Documents, and 00 that no Management Fees or Leasing
Commissions have been paid to Manager or any affiliate thereof out of Proceeds.
6. Restrictive Covenants. None of Owner, Manager or any affiliate thereof
shall enter into any agreements other than the Management Agreement which
provide for the management of all or any part of the Property other than the
Consulting Agreement and the Parking Management Agreements, without Holder's
prior written consent, which Holder may not unreasonably withhold but Holder may
condition its consent to any such agreement upon the execution by the parties
thereto and the delivery to Holder of an agreement acceptable to Holder that is
substantially in the form of this Agreement. None of Owner, Manager or any
affiliate thereof shall enter into any modifications, amendments or supplements
to the Management Agreement that would have a material adverse effect upon
Holder's rights under the Loan Documents, or that would violate or conflict with
the
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provisions of this Agreement without Holder's prior written consent, which
consent Holder may withhold in its sole and absolute discretion and Holder may
condition its consent to any such modification, amendment, or supplement upon
the reaffirmation by Owner and Manager of this Agreement in form and substance
acceptable to Holder.
7. Events of Default. Default by any or all of Owner, Manager or any
affiliate thereof in the performance of any obligation contained herein or the
violation by any or all of Owner, Manager or any affiliate thereof of any
restriction contained herein shall constitute an Event of Default hereunder.
Notwithstanding the foregoing, provided that no event requiring consent of
Holder under the Loan Documents has occurred without Holder's consent first
having been obtained, a default in an obligation other than either an obligation
to pay money or a covenant which restricts Owner, Manager or any affiliate
thereof from making any payment of money to any person (a "Non Monetary
Default") shall not constitute an Event of Default unless and until the "Notice
Period" (as hereinafter defined) for such Non Monetary Default shall have
expired without the default having been cured. The Notice Period for a Non
Monetary Default shall commence when notice thereof has been delivered to Owner
and Manager, and shall end thirty (30) days later, provided, however, that in
the case of a Non Monetary Default not capable of being cured within thirty (30)
days, the Notice Period shall be extended for as long as necessary to complete
such cure provided that Owner or Manager, as applicable, is proceeding
continuously with due diligence to complete such cure. Notwithstanding said
qualification on the definition of an Event of Default, Owner and Manager shall
not be entitled to notice or an opportunity to cure any Non Monetary Default
which occurs after, and within twelve consecutive months of, Owner's or
Manager's receipt of notices from Holder concerning two prior Non Monetary
Defaults.
8. Accounting. Owner and Manager shall provide Holder on or before each
May 15, August 15, November 15 and February 15 during the term hereof with an
accounting (each, an "Accounting"), in form and substance acceptable to Holder
and including the calculations by which the amount of Management Fees and
Leasing Commissions were determined, setting forth the amount of Management Fees
and the amount of Leasing Commissions which would have been paid to Manager by
Owner but for the terms of this Agreement. Each Accounting shall specify all
Management Fees and all Leasing Commissions earned during the immediately
preceding calendar quarter, the date each such Management Fee or Leasing
Commission would have been paid but for the terms of this Agreement, and the
cumulative amount of Management Fees and Leasing Commissions owing to Manager
since the delivery of the Management Agreement, together with the cumulative six
percent (6.0%) non-compounded return on any such amount
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described in paragraph 1 0 hereof. Each Accounting shall be certified by Owner
and Manager to have been prepared in accordance with the terms of this
Agreement and to be true, accurate and complete in all material respects.
9. Holder's Audit Rights.
(a) Holder may notify Owner within sixty (60) days after receipt of any
Accounting that Holder disputes or questions any computation or item contained
in such Accounting. If Holder so notifies Owner, the parties shall meet in good
faith within twenty (20) days after Holder's notice to Owner to resolve such
disputed items among themselves. If, despite such good faith efforts, the
parties are Unable to resolve the dispute at such meeting or within ten (10)
days thereafter, the items shall be resolved by an independent certified public
accountant who shall be designated by Holder (and reasonably approved by Owner
and Manager) within fifteen (15) days after such ten (10) day period. The
determination of such accountant shall be final, and such accountant shall
endeavor to render a determination within twenty (20) days after appointment.
The fees of such accountant shall be paid by Holder unless such review shall
indicate that the disputed Accounting set forth Management Fees and/or Leasing
Commissions in excess of actual Management Fees and/or Leasing Commissions by
four percent (4%) or more, in which case Owner shall pay all such fees. Any
adjustment in the amount of Management Fees and/or Leasing Commissions shall be
reflected in the Accounting immediately following such disputed Accounting.
(b) Owner and Manager shall keep and maintain at all times full and
accurate books of account and records adequate to correctly reflect all items
required in order to calculate Management Fees and Leasing Commissions. All such
books and records shall be kept at Overseas Management, Inc., 115 Perimeter
Center Place, Suite 940, Atlanta, Georgia 30346-1223, or at such office in the
Commonwealth of Massachusetts as Owner may reasonably select, provided Owner
gives Holder prior written notice thereof. Such books and records shall be
available until at least five (5) years after repayment in full of the Loan.
Holder shall have the right to inspect, copy and audit such books of account and
records at Holder's expense, during reasonable business hours, and upon
reasonable notice to Owner whether such books and records are in the possession
of Owner or any agent of Owner, for the purpose of verifying the accuracy of any
Accounting. All statements required under this Agreement shall be in addition to
any other financial or operating statements required by Holder from Owner
pursuant to the Loan Documents.
10. Payment of Management Fees and Leasing Commissions. All Management
Fees and Leasing Commissions, together with a six percent (6%) noncompounded
return thereon (calculated for each unpaid amount of Management
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Fees or Leasing Commissions from the date such Management Fees would have been
paid pursuant to the Management Agreement or the date such leasing commissions
were earned, as applicable, but for the terms of this Agreement), may be paid by
Owner to Manager from Proceeds only after repayment in full of the Loan,
provided, however, that Leasing Commissions considered in calculation of the
Copley Return (as defined in that certain Equity Payment Agreement dated as of
March 1, 1992, by,and among Copley Partnership, Aetna, Funding and Financing)
shall not exceed five dollars ($5.00) per leased square foot.
11. Successors and Assigns. This Agreement shall be binding upon and shall
inure to the benefit of Owner, Manager and Holder and their respective
successors, assigns and transferees; provided, however, that notwithstanding
anything to the contrary contained in the Management Agreement or Section 2
hereof, the Management Agreement and Section 2 hereof and all of Owner's and
Manager's rights and interests thereunder may not be assigned without the
Holder's prior written consent other than pursuant to the Consulting
Agreement, and shall automatically terminate upon any judicial or nonjudicial
foreclosure of the Mortgage or the acceptance of a deed in lieu of foreclosure
by the Holder or the appointment of a receiver to manage the Property (except
for rights and obligations relating to acts or events occurring prior to such
termination).
12. Governing Law. This Agreement shall be governed by and construed and
enforced in accordance with the laws of the Commonwealth of Massachusetts.
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13. Notices. All notices hereunder shall be in writing and shall be given
personally or by United States certified or registered mail (return receipt
requested) addressed as follows:
Owner and Funding:
Copley Place Associates, LLC
c/o Overseas Partners Capital Corp.
115 Perimeter Center Place Suite 940
Atlanta, Georgia 30346-1223
Attention: Legal Department
with a copy to:
Overseas Partners Capital Corp., Craig Appin House
P.O. Box HM 1581
8 Wesley Street
Hamilton HM GX Bermuda
Attention: Bruce M. Barone, President
with a copy to:
JMB Realty Corporation
900 North Michigan Avenue
Suite 1900
Chicago, Illinois 60611
Attention: Legal Department
Aetna and Financing:
The Aetna Casualty and Surety Company
One Tower Square
Hartford, Connecticut 06183-2020
Attention: Robert P. Scoville
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Manager:
Overseas Management, Inc.
115 Perimeter Center Place Suite 940
Atlanta, Georgia 30346-1223
Attention: Legal Department
with a copy to:
Overseas Partners Capital Corp. Craig Appin House
P.O. Box HM 1581
8 Wesley Street
Hamilton HM GX Bermuda
Attention: Bruce M. Barone, President
Notices given in accordance herewith shall be deemed delivered upon personal
delivery or on the date of delivery shown on the return receipt, as applicable.
Any party may change its address for notices by a notice given in accordance
with this Section 13.
14. Termination. This Agreement shall terminate upon the full payment of
the outstanding principal balance of the Loan, all accrued interest thereon and
all other amounts payable under the Loan Documents.
15. Severability. If any of the provisions of this Agreement are held by
a court of competent jurisdiction to be unenforceable as applied to particular
facts, then all of the other provisions of this Agreement (and said provision as
applied to other facts) shall remain in full force and effect.
16. No Waiver. No party shall be deemed to have waived any of its rights
hereunder unless the waiver is express and is contained in a writing signed by
the waiving party.
17. Acknowledgement. Owner and Manager hereby acknowledge that Holder,
Funding and Financing would not consent to the transactions contemplated by the
Recitals without this Agreement and that Holder, Funding and Financing are
relying upon this Agreement in executing and delivering their written consent to
the Purchase Transaction.
18. Limitations on Liability. The obligations and liabilities of Copley
and the present or future members in Copley and the present or future
shareholders,
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officers and directors of Nominee hereunder are subject to the exculpatory
provisions and exceptions therefrom contained in Paragraph 43 of the Mortgage.
In the case of any default by Manager, the damages recoverable by Holder against
Manager shall be limited to the aggregate Management Fees paid to Manager after
the date of this Agreement, plus all costs and expenses paid to or accepted by
Manager in violation of Section 3 hereof, respectively, but there shall be no
other limitation on the equitable or legal rights or remedies of Holder.
19. Counterpart Originals. This Agreement may be executed in
counterparts, each of which shall be deemed to constitute the same agreement.
20. Consent of Funding, Financing and Aetna. Funding, as owner of the
Note and Mortgage, and Financing and Aetna, as collateral assignees of the Note
and the Mortgage, execute this Agreement to acknowledge, consent and agree to
the terms of this Agreement.
21. Termination of Prior Subordination Agreement. The parties agree that
the Prior Subordination Agreement shall be superseded and replaced in its
entirety by this Agreement effective as of the date hereof, and that the parties
to such Prior Subordination Agreement shall have no further rights or
obligations thereunder, except for rights and obligations accruing with respect
to the period prior to such termination. Notwithstanding such termination,
Owner's rights under the Equity Payment Agreement to take into account all
amounts deferred by URPC or its predecessors or paid by Owner, COPLEY
Partnership or its affiliates from sources other than Proceeds to URPC or its
predecessors in connection with the Prior Management Agreement by reason of the
Prior Subordination Agreement into the calculation of the Copley Return pursuant
to the terms of the Prior Subordination Agreement and the Equity Payment
Agreement shall not be affected by such termination; provided, however, that for
purposes of the Equity Payment Agreement, the amounts taken into account for
purposes of the calculation of the Copley Return as a result of this Agreement
and the 'Consulting Subordination" (as defined below) shall not be counted twice
if they represent amounts paid to Manager by Copley under the Management
Agreement and then paid by Manager to URPC under the Consulting Agreement. As
used herein, the "CONSULTING SUBORDINATION" means that certain Consulting
Subordination Agreement, dated as of the date hereof, by and among Copley,
Nominee, Funding, Financing, Aetna, Manager and URPC.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
Copley:
COPLEY PLACE ASSOCIATES, LLC,
a Delaware limited liability company
By: OVERSEAS PARTNERS CAPITAL CORP.,
a Delaware corporation
By: /s/ Bruce M. Barone
--------------------
Name: Bruce M. Barone
------------------
Title: President
-----------------
Nominee:
COPLEY PLACE ASSOCIATES NOMINEE CORPORATION,
a Delaware corporation
By: /s/ Paul C. Nielsen
--------------------
Name: Paul C. Nielsen
-------------------
Title: Vice President
------------------
Funding:
COPLEY FUNDING CORPORATION,
a Delaware corporation
By:/s/Paul C. Nielsen
------------------
Name: Paul C. Nielsen
-----------------
Title: Vice President
----------------
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Financing:
COPLEY FINANCING CORPORATION,
a Delaware corporation
By: /s/ Alan Mendelson
---------------------------
Name:Alan Mendelson
---------------------------
Title: President
---------------------------
Aetna:
THE AETNA CASUALTY AND SURETY COMPANY,
a Connecticut corporation
By: /s/John H. Motley
---------------------------
Name: John H. Motley
---------------------------
Title: Vice President
---------------------------
Manager:
OVERSEAS MANAGEMENT, INC.,
a Delaware corporation
By: /s/Bruce M. Barone
---------------------------
Name: Bruce M. Barone
---------------------------
Title: President
---------------------------
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EXHIBIT 10.qqq
AGREEMENT FOR PURCHASE OF
CONSULTING AND OTHER SERVICES
THIS AGREEMENT made as of the 23 day of January, 1997, by and between
OVERSEAS MANAGEMENT, INC., a Delaware corporation (the "Manager"), and URBAN
RETAIL PROPERTIES CO., a Delaware corporation (the "Consultant"):
WITNESSETH, THAT:
WHEREAS, Manager is the manager of the "Center" (as hereinafter defined)
under the terms of a Management Agreement with Copley Place Associates, LLC
("Owner") dated as of the date hereof (the "Management Agreement").
WHEREAS, Consultant has prior experience with the operation and management
of the Center, and
WHEREAS, Manager wishes to engage Consultant for the purpose of providing
certain consulting and other services with respect to the management and
operation of the Center.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
hereinafter set forth, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
ARTICLE I
CERTAIN DEFINITIONS
For purposes of this Agreement, the following terms have the
following meanings:
<PAGE> 2
Section 1.1 "Central Property" means that certain subleasehold interest
in real estate and the retail shopping and office complex with associated
parking located thereon, and easements and appurtenances thereto, commonly known
as "Copley Place" and situated at the intersection of Dartmouth Street and
Stuart Street, in Boston, Massachusetts.
Section 1.2 The "Dartmouth Street Garage means that certain leasehold
interest in real estate and the improvements located thereon, and easements and
appurtenances thereto, commonly known as the "Dartmouth Street Garage" located
at 128 Dartmouth Street in Boston, Massachusetts.
Section 1.3 The "Center" means the Central Property and the Dartmouth
Street Garage, together with any real property, improvements, personal property
or intangible property now owned or hereafter acquired by Owner or any nominee
of Owner, which relates to the Center.
Section 1.4 "LLC Agreement" means that certain agreement captioned Amended
and Restated Limited Liability Company Agreement of Copley Place Associates,
LLC, dated as of January _______, 1997, between OPCC (as defined in Section
2.2.5 hereof) and JMB Realty Corporation, a Delaware corporation ("JMB").
ARTICLE II
TERM
Section 2. 1 Duration. Unless earlier terminated as set forth herein, the
term (the "Term") of this Agreement shall commence on the date hereof and shall
continue indefinitely unless terminated as provided herein, except that if under
applicable law a maximum term is required, the Term shall be the maximum term
allowed by law.
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Section 2.2. Termination by Manager. Manager may terminate this Agreement
as provided in this Section 2.2. This Section 2.2 sets forth the sole and only
rights of Manager to terminate this Agreement.
2.2.1. Certain Defaults. Manager may terminate this Agreement by 30
days written notice to Consultant at any time within one year after the
occurrence of a 'Termination Default Event." As used herein, "Termination
Default Event" means (i) the material fraudulent conduct by the Consultant
resulting in material damage to Owner (but unauthorized acts of employees of
Consultant, such as employee theft, will not constitute fraud by the
Consultant), (ii) willful breach of fiduciary duty resulting in material damage
to Owner or Manager, or (iii) the occurrence during any two calendar year
period of three or more Untimely Cured Notice Defaults which cover similar
defaults by the Consultant. As used herein, "Untimely Cured Notice Default'
means the occurrence of a material default by Consultant hereunder and the
failure of Consultant to the cure the same within thirty (30) days after
written notice of such default by Manager (unless the same is a nonmonetary
default which cannot be cured within such thirty (30) day period, in which
event such default will not be an Untimely Cured Notice Default if the
Consultant promptly commences and diligently and continuously pursues to
completion the cure of the same).
2.2.2. Casualty or Condemnation. Manager may terminate this Agreement by
written notice to Consultant in the event that Owner permanently discontinues
the operation of the Center on account of damage to or destruction of, or a
taking by (or a sale under threat of) eminent domain of, a substantial part of
the Center.
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2.2.3. Sale of Center. Manager may terminate this Agreement by written
notice to Consultant in the event that all or substantially all of the Center is
sold or disposed of.
2.2.4. Change in Ownership of Consultant. Manager may terminate this
Agreement by 90 days written notice to Consultant at any time when either (i)
Consultant ceases at any time during the period from January 1, 1997 through
December 31, 1999 to be controlled, directly or indirectly by either JMB Group
(as defined below) or by the REIT (as defined below) or (ii) JMB Group ceases to
own at least the Required Minimum Number of Adjusted Shares. Consultant shall
deliver to Owner a semi-annual certification on or before April 30 (for each of
the quarters ending on December 31 and March 31) and on or before October 31
(for each of the quarters ending on September 30 and June 30) of each year,
certifying that the JMB Group owned, or did not own, at least the Required
Minimum Number of Adjusted Shares, in each case as of March 31, June 30,
September 30 and December 31 of each year and shall deliver a certification on
or before April 30 of each year as to the matters described in (i) above. In
addition, within 30 days after request by Owner from time to time, Consultant
shall provide such certification to Owner and, if requested, such reasonable
evidence verifying such ownership. Owner agrees to keep all such information
received from Consultant hereunder strictly confidential, and shall promptly
return or destroy such information upon Consultant's written request.
(a) "Required Minimum Number" means the lesser of (i) 5,400,000,
which number shall be adjusted to reflect any stock splits or mergers with
respect to the, "REIT" (as hereinafter defined) which occur on or after
December 22, 1996, or (ii) $150,000,000 divided by the then publicly
traded price per share of the common stock of the REIT.
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(b) "Adjusted Shares" means (i) shares of common stock of Urban
Shopping Centers, Inc. or any entity into which Urban Shopping Centers,
Inc. is merged or consolidated (collectively, the "REIT"), (ii) shares of
any other class of stock convertible into shares of common stock of
the REIT (calculated based on the number of shares of common stock of the
REIT into which such other class of stock is convertible), (iii) debt
convertible into shares of common stock of the REIT (calculated based on
the number of shares of common stock of the REIT into which such debt is
convertible), and (iv) any other interest (including, but not limited to,
partnership interests in Urban Shopping Centers, L.P.) which can be
converted into shares of common stock of the REIT (calculated based on the
number of shares of common stock of the REIT into which such interest can
be converted).
(c) "JMB Group" means (i) JMB Realty Corporation, (ii) the present
direct or indirect shareholders of JMB Realty Corporation, (iii) the
parents, siblings, spouses, children, grandchildren and other descendants
of any of the persons described in clause (ii), trusts of which any of the
persons described in clauses (i) and (ii) above are the grantor or a
principal beneficiary, and (iv) any corporation, partnership, limited
liability company or other entity controlled by, under common control
with, or controlling, any of persons or entities described in clauses (i),
(ii), (iii) or (iv) above.
2.2.5. 5-Year Notice if Overseas Exit Occurs. In the event that
there is an "Overseas Exit," Manager may at any time thereafter terminate
this agreement on 5 years notice to Consultant (in which event the term of
this Agreement shall end on the date which is the fifth anniversary of
the date on which such notice is received by Consultant). As used herein,
"Overseas Exit" means the transfer by Overseas Partners Capital Corp., a
Delaware
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corporation ("OPCC"), of its entire interest in Owner to an entity in
which neither OPCC no any "Affiliate" thereof (as defined with respect to
OPCC in the LLC Agreement) own an interest.
2.2.6. 30-Day Notice if Overseas Exit Occurs. In the event there is
an Overseas Exit Manager may at any time thereafter terminate this
agreement on 30 days written notice to Consultant. If Manager gives such
notice, Manager shall pay to Consultant (from its own resources or from
funds supplied by OPCC's successor, and not from funds of Owner) a
termination fee equal to all compensation and reimbursements due to
Consultant hereunder through the date of termination plus 5 times the "Net
Economics' payable to Consultant for the calendar year immediately
preceding the calendar year in which such notice is given. Such
termination fee shall be paid within 30 days after the notice of
termination is given (and the termination shall not be effective unless
Manager pays such termination fee to Consultant). A used herein, "Net
Economics", for a calendar year means the Percentage Fee (as defined in
Schedule 7. 1) required to paid to Consultant hereunder for such year.
2.2.7. Occurrence Of Major Non-Performance Event. Manager may
terminate this Agreement on 30-days written notice ("Major Non-Performance
Termination Notice") to Consultant at any time after the occurrence of a
Major Non-Performance Event, provided however no such termination notice
may be given under this Section 2.2.7 prior to the date which is three
years after the date hereof or after the date on which an Overseas Exit
occurs. If Manager gives such notice, Manager shall pay to Consultant
(from its own resources or from funds supplied by OPCC's successor, and
not from funds of Owner) a termination fee
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equal to all compensation and reimbursements due to Consultant hereunder
through the date of termination plus 3 times the Net Economics paid to
Consultant for the calendar year immediately preceding the calendar year
in which the Major Non-Performance Termination Notice is given. Such
termination fee shall be paid within 15 days after the date on which the
Major NonPerformance Termination Notice is given (and, subject to
Consultant's right to contest same as set forth below, the termination
shall not be effective unless Manager pays such termination fee to
Consultant). As used herein, a 'Major Non-Performance Event" will only be
deemed to occur if all of the following are true: (i) Manager gave a
written notice specifying in detail the failure by Consultant to perform
its obligations hereunder, setting forth the steps Consultant would need
to cure such failure, and stating that such notice is a "Major
Non-Performance Default Notice' given under this Section 2.2.7; (ii) such
failure of performance was believed in good faith by Manager to constitute
a material detriment to Owner; (iii) Consultant failed to take the steps
needed to cure such failure in a manner reasonably satisfactory to Manager
within 30 days after such notice or, if longer, within the time reasonably
needed to achieve such cure (but not in excess of six months unless
impossible to achieve such cure within such six months), and (iv) Manager
has concluded in good faith that its relationship with Consultant is
strained and that the performance of the Center would be substantially
enhanced (for reasons other than a reduction in management fees) by the
termination of Consultant. In the event Consultant accepts the payment of
the Major Non-Performance Termination Fee, (evidenced by Consultant's
failure to return or repay same within 15 days after the date Consultant
receives same) the same shall constitute (i) waiver of an right of
Consultant to dispute whether the alleged Major Non-Performance Event
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occurred, (ii) waiver by Manager and Owner of any right to make a claim
for damages against Consultant on account of this Agreement, including,
without limitation, any of the matters specified in the Major
NonPerformance Default Notice, and (iii) acceptance by Consultant of
liquidated damages for. any claim Consultant may have against Manager or
Owner on account of this Agreement, including, without limitation, any
wrongful termination hereof. Without limitation on the foregoing, the
acceptance of the Major Non-Performance Termination Fee will not
constitute an admission by Consultant of any matter or thing.
2.2.8 Occurrence of Transfer to Non-JMB Affiliate. Manager may
terminate this Agreement on 30 days' written notice to Consultant at any
time after the interest of JMB in Owner has been transferred to an entity
which is not an "Affiliate" of JMB or of "Urban Shopping Centers" (such
quoted terms as defined in the LLC Agreement).
2.2.9 Certain Consequences of Termination. In the event of the
termination of the Management Agreement pursuant to Sections 2.2. 1 (a) or
2.2. 1 (d) thereof, and if immediately prior to such termination this
Agreement is still in effect, then Owner and Consultant shall immediately
enter into a new Management Agreement (the "New Agreement"), identical to
the Management Agreement (except as provided in the next sentence), and
this Agreement shall continue in full force and effect. The New Agreement
shall provide that (i) the New Agreement shall continue until, but shall
terminate on, the date on which this Agreement is terminated in accordance
with the terms hereof (and, accordingly, there shall be no termination
right by Owner as to the New Agreement other than the termination of this
Agreement in accordance with the terms hereof, (ii) in the event that
under the terms of this Agreement, the manager under the New Agreement (in
its capacity as manager) has the right to terminate this Agreement, such
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termination right may be exercised by Owner (with the Managing Member of
Owner responsible to pay all sums owing to Consultant with respect to such
termination of this Agreement), (iii) this Agreement and the New Agreement
shall, at the election of either Owner or Consultant, be consolidated into
a single agreement (but if Owner and Consultant are unable to agree upon
the form of such consolidated agreement, then such agreements will not be
consolidated but rather shall each remain in full force and effect).
2.2.10 Termination of Management Agreement by Manager. In the event
that at the time of termination of the Management Agreement by Manager
under Section 2.3 thereof this Agreement has not theretofore terminated,
Owner shall promptly give Consultant notice. of Manager's election to so
terminate, and Consultant shall have the right to elect, by giving written
notice to Owner and Manager at least 30 days prior to such specified date
for termination, to cause Manager to assign Manager's right, title and
interest in the Management Agreement to Consultant on the date which
Manager otherwise proposed for termination, in which event the Management
Agreement shall not terminate on such date but rather shall continue
thereafter with Consultant acting as Manager thereunder (as well as acting
as Consultant under this Agreement). In the event of such assignment (i)
the Management Agreement shall continue until, but shall terminate on, the
date on which this Agreement is terminated in accordance with the terms
hereof (and, accordingly, there shall be no termination right by Owner as
to the Management Agreement other than the termination of this Agreement
in accordance with the terms hereof), (ii) in the event that under the
terms of this Agreement, Manager (in its capacity as Manager) has the
right to terminate this Agreement, such termination right may be exercised
by Owner (with the Managing Member of Owner responsible to pay all sums
owing to Consultant with respect to
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such termination of this Agreement), and (iii) the Management Agreement
and this Agreement shall, at the election of either Owner or Consultant,
be consolidated into a single agreement (but if Owner and Consultant are
unable to agree upon the form of such consolidated agreement, then such
agreements will not be consolidated but rather shall each remain in full
force and effect).
Section 2.3 Termination by Consultant. At any time Consultant may
elect to terminate this Agreement by giving at least 120 days' prior
written notice to Manager, in which event this Agreement shall terminate
on the date for termination specified in such notice.
Section 2.4 Effect of Termination. Termination of this Agreement
shall terminate all rights and obligations of the parties hereunder
(except that such termination shall not affect the rights and obligations
of the parties arising prior to the effective date of such termination and
shall not prejudice the rights of either party against the other for any
prior breach of this Agreement, except to the extent set forth in Section
2.2.7 above). Without limitation on the generality of the foregoing:
2.4.1 Termination of this Agreement shall terminate any and all
rights of Consultant to act in such capacity on behalf of or with respect
to the Center (and Consultant shall, if Manager so requests, execute a
notice to third parties that such rights of Consultant have been so
terminated).
2.4.2 Manager's termination of this Agreement pursuant to Section
2.2. (other than a termination under Section 2.2.7) or the termination of
this Agreement by Consultant pursuant to Section 2.3 hereof shall in no
way preclude Manager from recovering hereunder for its loss or damage
resulting from the default or breach of Consultant, or from recovering
from
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Consultant any sums due hereunder to Owner or Manager with respect to the
period prior to the effective date of termination.
Section 2.5 Final Accounting. Upon the termination of this Agreement
(whether upon expiration of the. Term or an earlier termination as herein
provided), Consultant shall within ten (1O) business days provide or
deliver to Owner and Manager (a) to the extent Consultant is then
responsible for providing property accounting services hereunder, a final
accounting of the operations of the Center for the period since the
most-recent previous accounting so provided by Consultant; (b) all monies
of Owner or Manager held or controlled by Consultant with respect to the
Center which Consultant is not entitled by this Agreement to disburse to
itself; (c) as received, any monies due Owner or Manager under this
Agreement with respect to the Center, but received by Consultant after
such termination; (d) all materials, supplies, keys, contracts, leases,
documents and accounting papers (other than those relating solely to
Consultant's own business and affairs) possessed by Consultant with
respect to the Center; and (e) a duly executed and acknowledged assignment
of all rights Consultant may have in and to any existing assignable
contracts relating to the operation and maintenance of the Center, and
Manager shall assume and agree to hold Consultant harmless from all of
Consultant's obligations thereunder, except to the extent that the
existence thereof is contrary to any provision of this Agreement or the
same are expressly required to be retained by Consultant under the
provisions of this Agreement. To the extent not previously paid by Manager
or Owner, or disbursed by Consultant to itself as herein provided, Manager
shall pay all compensation due to Consultant hereunder though the date of
termination within ten (1O) business days thereafter. Manager shall also
thereafter cause Owner to pay Consultant, within ten (1O) business days of
receipt of reasonable
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evidence thereof, for any other costs and expenses (including, without
limitation, Reimbursable Costs, as defined in Schedule 7.1) which were
properly incurred by Consultant on behalf of Owner prior to the date of
termination and not reimbursed to Consultant.
ARTICLE III
SCOPE OF SERVICES
Section 3. 1 Scope of Services. On and subject to the terms hereof
and subject always to the supervision and control of Manager, Consultant
shall perform or cause to be performed the services and functions
described in this Agreement (the "Services"), as agent on behalf of Owner
and Manager. Consultant may subcontract any of such Services to Affiliates
of Consultant (as defined in Schedule 7.1 hereof), or, subject to the
prior written approval of Manager, to other entities. Without limitation
on the general nature of the foregoing, subject to the supervision and
control of Manager, Manager hereby appoints Consultant as the exclusive
leasing agent for the retail space in the Center, to act in such capacity
as agent for Owner and Manager as further set forth herein.
Section 3.2 Amendments. The scope of Services and the fees and
charges payable therefor may not be amended except by the written
agreement of Manager and Consultant.
Section 3.3 Subject to Management Agreement. Manager has provided
Consultant with a true and correct copy of the Management Agreement and
shall promptly provide Consultant with all amendments and modifications
thereto which hereafter become effective. Nothing in this Agreement shall
authorize or require Consultant to take any action on behalf of Owner or
Manager which would constitute a default by Manager under the Management
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Agreement if performed by Manager, without the prior written consent of
both Owner and Manager.
Section 3.4 Action By Owner and Manager. For purposes of this
Agreement, all (respecting Manager only) or Property Manager (respecting
Manager only) of Manager or of the Managing Member of Owner shall be
conclusively deemed to be the authorized action of Owner or Manager, as
applicable.
ARTICLE IV
ANNUAL BUDGET
Section 4.1 Preparation of Budget: Contents. At least 90 days prior
to the first day of each calendar year during the Term, Consultant shall
prepare and submit to the Manager and Owner a budget (the "Annual Budget)
substantially in the form and with such detail as Consultant customarily
provides for its third-party clients (other than 1997, as to which such
budget shall be prepared and submitted as soon as practicable after the
date hereof). With respect to matters which are not within the scope of
Consultant's duties and obligations hereunder, Manager agrees to cooperate
with Consultant to provide the information necessary to complete the
Annual Budget on a timely basis. The Annual Budget shall include, among
other matters:
4.1.1 Operating Budget. An operating budget which shall set forth,
among other matters, anticipated operating income, expenses and reserve
requirements for such year. The Annual Budget shall not contain provisions
for costs or expenses required by Schedule 7.1 hereof to be paid by
Consultant without reimbursement hereunder. The Annual Budget shall
provide for a contingency amount of at least 5 % of the total operating
expenditures (other than
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"Fixed Obligations," as defined below and non-cash items) set forth in
the "Approved Annual Budget" (as hereinafter defined) in the aggregate
which may be disbursed by Consultant to the extent otherwise permitted
hereunder. Obligations (other than Fixed Obligations) so incurred by
Consultant on behalf of Owner in excess of the amount of such obligations
provided for in the Approved Annual Budget and not specifically otherwise
approved by Owner shall be applied against the contingency amount, and the
balance from time to time of such contingency amount is hereinafter
sometimes referred to as the uncommitted portion of the contingency
amount. Manager and Consultant shall consult and cooperate in good faith
to determine which expenditures of Consultant hereunder or by Manager
under the Management Agreement shall be applied against the uncommitted
contingency amount. The term "Fixed Obligations" shall mean obligations
for real estate taxes, debt service and utilities.
4.1.2 Capital Budget. A capital budget which shall set forth, among
other matters, anticipated and proposed capital expenditures for such year
and the source of funds in respect thereto.
4.1.3 Leasing Plan. A statement of the retail space Consultant
projects to be leased during such year, the minimum rent and percentage
rent it projects to obtain for such space and the other material economic
provisions of the tenant leases (including, but not limited to, the
contributions to ad valorem taxes, common area expenses and the escalation
provisions and any commissions or similar fees payable by reason of new or
existing leases, and all tenant improvement costs and expenses to be borne
by Owner in connection with tenant leases).
4.1.4 Staffing Plan. A statement of the number, identity and
categories of staffing to be employed on-site by Consultant (either in its
capacity as Consultant or as agent
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for Owner) and the Manager, including salary levels and benefits for each.
To the extent Consultant or Manager employ subcontractors to perform any
of their respective duties and obligations, the staffing plan shall also
include an estimate of the number and categories of staffing to be
employed on-site by each such subcontractor.
Section 4.2 Budget Updates. The Annual Budget for a year shall be
updated on or about the first day of July of such year by Consultant to
reflect any changes indicated by the actual results of operations, and
such update shall be submitted to the Manager promptly thereafter. Manager
shall provide Consultant with such information as Consultant reasonably
requires concerning Manager's operations in order to satisfy Consultant's
obligations under this Section 4.2.
Section 4.3 Approval of Budget. The term "Approved Annual Budget"
shall mean the Annual Budget (as revised by revisions thereof approved by
Owner and Manager in accordance with the provisions hereof, the Management
Agreement and, to the extent applicable, the LLC Agreement. An Annual
Budget or a revision thereof shall be deemed approved by Manager and Owner
only if it is approved in writing by each of Manager and Owner. Nothing in
the Annual Budget submitted by Consultant to Manager hereunder shall be
binding upon Owner (or any member of Owner) until the Annual Budget is
approved by Owner as aforesaid.
Section 4.4 Obligation and Authority to Implement Budget. Consultant
shall be authorized, without the need for further approval from either
Owner or Manager, to make the expenditures and incur the obligations
(other than debt service) provided for in the most recent Approved Annual
Budget for the areas of responsibility included within the Services, as
agent for the Manager and Owner (but only if the Consultant acts
substantially in conformance with the
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Approved Annual Budget, including any contingency amount provided therein)
and to make all expenditures required with respect to real estate taxes,
utilities and debt service (hereinafter "Fixed Obligations"). The
Consultant shall have no authority to, and shall not, make any expenditure
or incur any obligation in excess of the amount set forth in the Approved
Annual Budget for such item (or any uncommitted portion of the contingency
amount) without the prior written approval of the Manager or Owner in each
instance. It is understood that non-cash items, such as depreciation and
amortization, may be reflected in the Approved Annual Budget and that
variances between the amounts so reflected in the Approved Annual Budget
and the actual amounts of such items shall not affect or limit the amounts
of other liabilities and obligations which Consultant may incur and pay on
behalf of Owner hereunder. Nothing in this Article IV shall in any manner
serve to limit the compensation to which Consultant is entitled pursuant
to Article VII of this Agreement.
ARTICLE V
THE CONSULTANT'S SERVICES
Section 5.1 Standard of Performance. Subject to Manager's
supervision and control, Consultant agrees, in performing the Services
hereunder, directly or indirectly through permitted subcontractors, to use
that level of skill, competence and diligence as is used by first class
management and leasing firms in the Boston, Massachusetts area with
respect to similar properties, except to the extent such performance IS
impeded by the failure of Manager to perform under the Management
Agreement. Subject to and in furtherance of the foregoing, and except with
respect to these services to be performed by Manager under the Management
Agreement, the Consultant shall, with respect to the Center, perform or
cause to be performed
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such services as are customarily performed with respect to similar
properties by such management and leasing firms in connection with the
services set forth in this Article V.
Section 5.2 Property Accounting: Books and Records. Except to the
extent performed and maintained by Manager pursuant to the Management
Agreement, Consultant shall perform customary property accounting services
and shall maintain at the Center or at such other location as the Manager
shall approve and for so long as the Manager shall require during the term
hereof, the records, books and accounts of Owner with respect to the
management and operation of the Center. Owner and Manager shall have the
rights set forth in Section 7.5 with respect to such books and records.
Section 5.3 Employment of On-Site Personnel. Except for those
persons employed by Manager pursuant to the Management Agreement (or
persons employed by permitted subcontractors of either Manager or
Consultant), all on-site personnel as may be required for the proposed
operation and maintenance of the Center, including, but not limited to,
clerical, and management personnel, and grounds keeping, janitorial,
parking, maintenance, and custodial employees shall be employees of Owner;
provided, however, that subject to Owner's prior approval, Consultant may
in its reasonable discretion, employ and/or provide payroll and benefits
services with respect to such employees, as agent for Owner, so long as
Owner pays the full cost to Consultant therefor, with respect to the
operations of the Center. Regardless of whether such persons shall be
employees of Owner or Consultant, Consultant shall in those areas within
its scope of services hereunder, as agent for Owner and Manager, select,
hire, pay (or cause to be paid), supervise, direct and discharge all such
employees and procure and keep in force workers' compensation insurance
(and, when required by law, compulsory
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nonoccupational disability insurance) covering such employees. At the
request of Owner, all employees of Owner or Consultant as hereinbefore
provided, or of permitted subcontractors of Consultant, charged with the
handling of funds of Owner, shall be covered by fidelity bonds in amounts
reasonably acceptable to Manager.
Section 5.4 Maintenance and Rel2airs. Manager shall be responsible
pursuant to the Management Agreement to maintain the Center in a good,
condition and to perform all repairs, maintenance and decorating with
respect thereto. Consultant shall have no responsibility for any of the
foregoing; provided, however, that one of the employees employed pursuant
to Section 5.3 shall be a maintenance supervisor who, subject to the
direction and control of Manager, shall use reasonable efforts to monitor,
supervise and cooperate with Manager concerning the maintenance and repair
responsibilities of Manager's subcontractors. Consultant shall have no
obligation to perform emergency work but shall use reasonable efforts to
inform Manager of any circumstances of which Manager may not be aware
which may require such emergency work to be performed.
Section 5.5 Insurance. If and so long as the Manager so elects, the
Consultant shall (and, if Manager does not so elect, Manager shall)
procure and maintain insurance (in form and with coverages, limits,
endorsements, waivers and deductibles and with insurance companies
designated or Approved by the Owner, and to the extent required by any
mortgagee of the Center), naming the Owner, the Manager, the members of
the Owner, and the Consultant as named insureds thereunder, provided,
that, such insurance shall at a minimum include the following (whether
procured by Manager or Consultant):
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(a) All-Risk Insurance. Insurance against loss or damage to the
Center by fire and any of the risks covered by insurance of the type now
known as broad from "all risk" coverage (including theft coverage) in an
amount not less than the full replacement cost of the Center, without
deducting for physical depreciation; such insurance to include a
"Replacement Cost Endorsement," together with (i) a stipulated value or
agreed amount endorsement deleting the coinsurance provision of such
policy or policies of insurance, (ii) a waiver of subrogation endorsement,
(iii) coverage for demolition, (iv) an endorsement for increased cost of
construction, occasioned by operation of any law or ordinance regulating,
the construction, use or repair of the Center, and (v) if such insurance
is not part of a blanket program, such other endorsements as may be
requested by Owner.
(b) Public Liability Insurance. Automobile liability insurance
covering owned, hired and non-owned vehicles, with separate coverage and
with liability limits of not less than $5,000,000 combined single limit.
Commercial General Liability Insurance coverage with a minimum combined
single limit of at least Five Million Dollars ($5,000,000) and a general
aggregate limit of Fifteen Million Dollars ($15,000,000), with broad form
property damage coverage.
(c) Rental Income Insurance. Business interruption and/or loss of
rental value insurance in an amount not less than 100% of the projected
rental income from the Center for 12 months. The perils insured against
under such insurance shall be the same as provided in subsection (a)
above, and such insurance shall not have a co-insurance or contribution
clause.
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(d) Mandatory Insurance. Workers' compensation, including employer's
liability, with a limit of not less than One Million Dollars ($ 1,000,000)
and all other insurance required by any ordinance, law or governmental
regulation or by any of Owner's lenders.
(e) Boiler and Machinery Insurance. Mechanical breakdown insurance
(also known as "boiler and machinery insurance) covering pressure vessels,
air tanks, boilers, machinery, pressure piping, heating, air conditioning
and elevator equipment and escalator equipment and insurance against loss
of occupancy or use arising from any such breakdown, in such amounts and
with such deductibles as are reasonably satisfactory to Consultant.
All insurance coverage required to be provided by the foregoing
provisions of this Section 5.5 shall provide for thirty (30) days' notice
of cancellation or material change and be placed with such carriers and
through such insurance broker or agency as the Owner or the Manager may
from time to time hereafter designate by written notice to the Consultant;
provided, however, that such insurance shall continue to be carried under
the existing blanket coverage policies in which the Center currently
participates, through May 31, 1997.
Section 5.6 Collection and Disbursement of Revenue. If and so long
as Manager shall so elect, Consultant shall collect rent and all other
revenue from the Center and deposit the same (other than security
deposits) promptly in an interest-bearing bank account (the "Operating
Account") established by Manager, which account shall be maintained by
Manager in trust for Owner. As further set forth elsewhere in this
Agreement, Consultant, Manager and Owner shall each be authorized and
entitled to withdraw funds from the Operating Account, but all such money
shall be deemed to be the property of Owner. Such monies of Owner shall
not be commingled with the funds of Consultant. Consultant may withdraw
from the Operating
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Account (subject to the limitations set forth in this Agreement)
disbursements required or permitted to be made under this Agreement;
provided, however, that except as otherwise agreed in writing by Manager
or as expressly provided herein, disbursements by Consultant out of the
Operating Account shall be limited to the purposes set forth in the
Approved Annual Budget (including any contingency amount applicable
thereto) and to the amounts for such purposes which do not exceed the
corresponding sums allocated to the same in the Approved Annual Budget and
to the payment of Fixed Obligations. At Manager's election (provided that
Manager provides Consultant with any information in Manager's possession
necessary to do so), Consultant shall render monthly reports to the Owner
and Manager, in such form as is reasonably acceptable to Manager, showing
all receipts and disbursements, received or made by Consultant and Manager
on behalf of Owner for the preceding calendar month (and, if requested by
Manager, will make available to Owner or Manager for its inspection, and
will permit Owner or Manager to make copies of, bills, invoices and other
information in Consultant's possession or control in connection therewith)
on or before the 20th day of each month.
Section 5.7 Security Deposits. Unless Manager elects by written
notice to Consultant to perform such duties, Consultant shall deposit all
security deposits for the Center in a separate interest-bearing project
account (the "Security Account") in the name of the Manager on which any
of Owner, Manager or Consultant may draw. Consultant shall be authorized
to withdraw monies from the Security Account at such time as the security
deposits are returnable to tenants or in the event of a t6nant default (in
which case such monies shall be deposited by Consultant into the Operating
Account). It is expressly understood and agreed that all disbursements,
transfers and refunds made by Consultant from the Security Account shall
be
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made by a check drawn on the Security Account or appropriate journal or
bookkeeping entries and shall be substantiated by appropriate records and
accounting procedures. The funds in the Security Account, or the amount
thereof requested by Owner, shall be delivered to Owner upon Owner's
request.
Section 5.8 Payments. Except as otherwise directed from time to time
by Owner or Manager, Consultant shall make or cause to be made (but, only
to the extent of funds in the Operating Account or to the extent Owner
provides to Consultant the funds therefor) the payment when due of all
obligations of Owner incurred by Consultant on Owner's behalf hereunder,
the existence of which were approved by Owner or which were incurred in
accordance with the provisions hereof
Section 5.9 Compliance.
5.9.1 In General. Consultant shall use reasonable efforts at
the cost of Owner to cause Owner and the Center to be in compliance
with all laws applicable to the Center or any part thereof with
respect to the Services provided by Consultant hereunder, and
subject to the supervision and control of Manager, to cause tenants
of the Center to comply with all material covenants, conditions,
restrictions, limitations and requirements of every kind or nature
which relate to the Center or any part thereof or which are imposed
by any lease, contract or instrument to which the Center or Owner is
now subject or hereafter becomes subject. Manager and Consultant
shall promptly notify one another of any failure to so comply,
including violations relative to the leasing, use, repair and
maintenance of the Center under governmental laws, rules,
regulations, ordinances or like provisions, of which either of them
receives notice or knowledge.
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Section 5.10 Contracts and Leases.
5.10.1 Service Contracts. Consultant may, as agent for Owner, with
the prior written consent of the Manager, to the extent the obligations of the
Owner thereunder do not exceed the amounts provided for in the Approved Annual
Budget (plus any uncommitted contingency amount), negotiate and enter into
service contracts for the operation of the Center respecting those functions
which are not listed above and are not expressly the responsibility of Manager
pursuant to Section 5.1.0 of the Management Agreement, for terms no longer than
one year including, without limitation, for electricity, gas, fuel, water,
telephone, window cleaning, ash or rubbish hauling, vermin extermination,
security and such other supplies, services and other matters for the Center as
Consultant shall reasonably deem to be advisable.
5.10.2 Leases. Subject to the supervision and control of Manager,
and subject to subsequent provisions of this Section, Consultant shall use
diligent efforts to market for lease and to rent and keep rented the retail
portions of the Center by actively seeking out, on both a national and local
basis, and procuring, tenants in accordance with the Approved Annual Budget
(including the Leasing Plan set forth therein), or as otherwise approved by
Manager in writing. Without limitation on the foregoing, Consultant shall
negotiate, on behalf of Owner, in accordance with the Approved Annual Budget (or
as otherwise approved by Owner or Manager in writing), all retail leases and
related agreements for space in the retail areas of the Center, together with
any amendments, cancellations, renewals or extensions thereof (all such leases,
agreements, amendments, cancellations, renewals or extensions now existing or
hereafter entered into being herein individually and collectively referred to as
a "Lease" or "Leases"). Consultant shall have no right to execute on behalf of
Owner any Lease, amendment of Lease or
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cancellation of Lease, and shall at no time represent or hold itself out
as having such authority. Each proposed Lease shall be delivered by
Consultant to Manager for review and for execution by or on behalf of
Owner. If any Lease, operating agreement or other document or instrument
affecting the Center requires the consent of a third party to a proposed
Lease, Consultant will not, without Manager's prior written consent, in
each instance, attempt to obtain such third-party consent. Each Lease will
set forth expressly any provision required to be set forth in the same
under the provisions of the air rights or other leases or subleases
governing, from time to time, the Center or any part thereof. Upon
execution of any such Lease, Manager shall deliver to Consultant a
fully-executed copy thereof. To the extent requested by Manager,
Consultant shall perform any necessary tenant coordination services with
respect to any such Lease.
5.10.3 Other Contracts. Consultant, in its capacity as such, shall
not enter into any other contract or agreement on behalf of Owner, unless
the same is consented to in writing in advance by Owner or Manager or is
otherwise expressly authorized hereby.
Section 5.11 Legal Action. Consultant shall, on behalf of and at the
cost of Owner and subject to the supervision and control of Manager,
institute all necessary legal action or proceedings for the collection of
rent from the Center, for the ousting or dispossessing of tenants or other
persons therefrom or for other matters related to tenants, or respecting
service contracts entered into by Consultant on Owner's behalf hereunder.
Notwithstanding the foregoing, Consultant shall give Manager written
notice of its intention to file any lawsuit for any of the foregoing
matters, other than for the collection of rent, at least ten (1O) days
before it files such lawsuit and shall not institute such lawsuit if
Manager objects thereto. In addition, Consultant shall promptly notify
Manager of any lawsuit or threat thereof involving or affecting the Center
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of which Consultant receives notice or knowledge. Except with respect to
the collection of rent, Consultant shall not (without the prior written
consent of Manager) threaten to (a) institute a lawsuit, (b) refer any
matter to a collection agency, or (c) report any delinquency to a credit
reporting entity (Consultant agreeing to request Manager's consent that
such action be taken when the Consultant determines that such action is
appropriate).
Section 5.12 Tenant Requests. Consultant shall receive and promptly
respond to complaints: and requests of tenants, keeping Manager
reasonably informed at all times. To the extent any such complaints or
requests relate to services which are provided by Manager under the
Management Agreement, Consultant shall refer such complaint or request to
Manager for action. Systematic records shall be maintained by Manager or
Consultant@ as applicable, showing the action taken with respect to each
complaint or request. Complaints or requests of a material nature shall be
promptly reported in writing by Consultant and Manager to the other.
Consultant or Manager, as applicable, shall include in such written report
to the Manager all relevant details and appropriate recommendations.
Section 5.13 Impounds and Capital Reserves. In the event that under
the terms or provisions of any mortgage to which the Center is subject,
the mortgagor is required to deposit in installments an amount against or
based upon taxes, insurance premiums or other sums, then, to the extent
Owner provides the funds therefor, Consultant shall open appropriate
impound accounts in the name of Owner or lender (if required under such
mortgage) and make such deposits unless Manager notifies Consultant that
Manager shall perform such function.
Section 5.14 Security. Consultant shall provide security personnel
and services for the Center (either directly or on through approved
subcontractors), and such devices and programs
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with respect thereto, as Consultant reasonably believes is necessary for
the safety of visitors to the Center. Such services shall not include any
responsibility for the protection of property. Manager and Owner hereby
each acknowledge and agree that such safety or security services, devices
and programs-provided by Consultant, while intended to deter crime and
enhance safety, may not in given instances prevent theft or other
injurious acts or ensure safety of parties or property and that consultant
assumes no liability to Owner, Manager or any other person or entity
for the failure or circumvention thereof. Manager and Owner each agree to
cooperate in any safety or security program developed or implemented by
Consultant hereunder.
Section 5.15 Marketing: Customer and Visitor Services: Public
Relations. To the extent provided for in the Approved Annual Budget,
Consultant shall, as agent for Manager and Owner, provide marketing,
customer service, concierge information, public relations, advertising and
promotional services for the retail portion of the Center and otherwise as
requested by Manager.'
Section 5.16 Periodic Reporting. Consultant shall make such further
periodic reports of its doings to Manager as Manager and Consultant shall
agree from time to time to provide Manager with current and updated
information on the operation of the Center as to those areas within the
scope of this Agreement.
ARTICLE VI
BEARING OF EXPENSES: PAYMENT OF COMPENSATION
Section 6.1 Use of Operating Account. To the extent there are
adequate funds available therein, the Operating Account shall be used to
pay any and all direct or indirect expenses or Reimbursable Costs (as
defined in Schedule 7. 1) of the Owner relative to the
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operation of the Center. This shall include, without limitation, those
costs and expenses incurred by Consultant on behalf of Owner hereunder and
those costs and expenses incurred by Manager on behalf of Owner as set
forth in the Management Agreement, in each case to the extent authorized
herein and therein. The right of Consultant to withdraw funds from the
Operating Account for the purposes set forth herein is a material
inducement to Consultant to enter into this Agreement, and is a material
factor in Consultant's ability to perform hereunder. Therefore, Manager
and Owner hereby each agree that, until the termination of this Agreement
as set forth herein, appropriate representatives of Consultant shall have
authority to withdraw funds from the Operating Account for the payment of
such direct expenses and Reimbursable Costs, and Manager and Consultant
agree to coordinate with each other and keep each other reasonably
informed with respect to their activities relative to the Operating
Account. Consultant hereby acknowledges and agrees that Manager, pursuant
to the Management Agreement, and Owner shall also have concurrent
authority to withdraw funds from the Operating Account for similar
purposes.
Section 6.2 Payment of Consultant's Compensation. The compensation
of Consultant provided in Article VII hereof shall be payable as follows.
On or before the fifth day of each calendar month, Consultant shall be
entitled to the compensation determined under Article VII with respect to
the payments received by or on behalf of the Owner during the preceding
calendar month. In addition, the Consultant shall be entitled to
reimbursement for any Reimbursable Costs immediately upon incurring them
on behalf of Owner. Manager and Owner each hereby agree that Consultant
may disburse such compensation and Reimbursable Costs to itself during the
term hereof, and that to the extent such compensation is payable by
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Manager rather than Owner, such disbursements shall serve as a credit for
owner against the fees payable by Owner under the Management Agreement. To
the extent Manager has insufficient funds (or receivables from Owner
subject to credit as aforesaid) to cover the amounts payable to Consultant
hereunder, Owner agrees that it shall be responsible for the payment of
any remaining amounts so due to Consultant, immediately upon demand, with
a right of contribution against Manager with respect thereto.
Section 6.3 No Obligation To Advance Funds. Owner and Manager hereby
agree that any excess of the compensation, Reimbursable Costs and other
costs and expenses payable to or incurred by Consultant, on behalf of
Owner in' discharging its obligations and duties hereunder, over the
balance available in the Operating Account for the satisfaction thereof
shall be borne solely by Owner, and Consultant shall not be obligated to
advance its funds therefor, except for those expenses which are to be
borne solely by Consultant as set forth in Schedule 7. 1. To the extent
Owner fails to make funds available to Consultant for the payment of such
items, Consultant shall be excused from such performance hereunder as
relates to such failure, provided that the foregoing shall in no event
excuse Manager from its obligation to pay Consultant the compensation set
forth in Article VII hereof.
ARTICLE VII
COMPENSATION
Section 7.1 Basic Compensation. As compensation for performing the
Services described herein during the entire Tenn, Manager shall pay
Consultant a fee, consisting of the Percentage Fee as set forth in
Schedule 7.1 hereof, hereby incorporated herein by this reference, as it
may be amended by the written agreement of the parties from time to time.
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Section 7.2 Office Space, Furniture and Equipment. Manager shall
provide no less than 2300 square feet of office space for Consultant
within the Center, rent free, to serve as Consultant's on-site office for
the performance of Consultant's duties and obligations hereunder, which
shall be contiguous to Manager's on-site office. The reasonable cost of
furnishing and equipping, and the direct costs of operating, such office,
including, without limitation, utilities, telephone and office supplies,
shall be borne solely by Owner, and shall be limited to the extent
provided in the Approved Annual Budget except as otherwise approved by
Owner.
Section 7.3 Reimbursable Costs. Consultant may pay directly out of
the Operating Account, or shall be reimbursed by Owner for, the
Reimbursable Costs set forth in Schedule 7.1 and other direct or indirect
costs and expenses, to the extent such costs are authorized to be incurred
by Consultant hereunder, such payment or reimbursement to be made as set
forth in Section 6.2 above.
Section 7.4 No Other Compensation. Consultant shall receive no
compensation or reimbursement of any kind or nature for or during the Term
for services performed under this Agreement, except as otherwise expressly
provided in this Agreement. Without limitation on the generality of the
foregoing, (1) no leasing commissions shall be payable to Consultant, and
(2) if Consultant, in its capacity as such, performs any special service
or work for a tenant not required hereunder, Consultant's profit therefor
shall belong to the Owner.
Section 7.5 Audit. Notwithstanding anything in this Agreement to the
contrary, Manager and Owner and their respective representatives shall
each have the right at any time, upon three (3) days prior written notice
to Consultant, to audit any of the books and records of
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Owner maintained by Consultant, including any expenses or payments made or
revenue or other payments received by or on behalf of Owner with respect to this
Agreement or the Center, and Consultant agrees to surrender such books and
records to Manager upon the termination hereof, provided, however, that
Consultant shall be entitled to retain a copy thereof.
ARTICLE VIII
MISCELLANEOUS
Section 8.1 No Joint Venture. This Agreement shall not be construed as
effecting a partnership or joint venture between either Owner or Manager, on the
one hand, and Consultant on the other hand.
Section 8.2 Successors and Assigns. This Agreement shall be binding upon
and inure to the benefit of the parties hereto and their respective successors
and assigns, provided that Consultant shall not be entitled to assign this
Agreement without the prior written consent of Manager, except to an Affiliate
(as defined in Schedule 7.1) or to the extent permitted under Section 3.1 or
Schedule 7.1.
Section 8.3 Owner Indemnity. Owner shall protect, defend, indemnify and
hold Consultant harmless from and against any and all loss, cost, damage,
liability and expense (including court costs and reasonable attorneys' fees)
arising out of the performance by Consultant of its obligations and duties
hereunder, it being expressly understood that Owner does not hereby agree to,
and shall not, so indemnify Consultant from any such loss, cost, damage,
liability or expense arising out of the act or omission of Consultant or any of
its agents, employees or other representatives which is grossly negligent,
tortious (excluding
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ordinary negligence) in breach of this Agreement or outside the scope of
Manager's authority as provided herein.
Section 8.4 Consultant Indemnity. To the extent they shall not be
compensated for the same by insurance proceeds, Consultant shall protect,
defend, indemnify and hold Owner, Manager, the members of Owner and the Center
harmless from and against any and all loss, cost, damage, liability and expense
(including court costs and reasonable attorneys' fees) arising out of the
failure of Consultant or any of its agents, officers, employees or
representatives to comply with or perform Consultant's duties and obligations
under this Agreement in accordance with the terms hereof or by reason of any act
or omission of Consultant or any of its agents, officers, employees or
representatives which is grossly negligent, tortious (excluding ordinary
negligence) or outside the scope of Consultant's authority as provided herein.
Section 8.5 Cumulative Remedies. The rights and remedies of the parties
hereto shall not be mutually exclusive, i.e., the exercise of one or more of the
provisions hereof shall not preclude the exercise of any other provision hereof.
However, Consultant shall not be liable to Manager hereunder for ordinary
negligence.
Section 8.6 Attorney's Fees. If either party obtains a judgment against
the other party by reason of breach of this Agreement, a reasonable attorneys'
fee, as fixed by the court, shall be included in such judgment.
Section 8.7 No Waiver. Time is of the essence of this Agreement. No waiver
by either party of any default of the other party or of any event, circumstance
or condition permitting a party to terminate this Agreement shall constitute a
waiver of any other default of the other party or of any other event,
circumstance or condition permitting such termination,
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whether of the same or of any other nature or type and whether preceding,
concurrent or succeeding; and no failure on the part of either party to exercise
any right it may have by the terms hereof or by law upon the default of the
other party and no delay in the exercise of such right shall prevent the
exercise thereof by the nondefaulting party at any time when the other party may
continue to be so in default, and no such failure or delay and no waiver of
default shall operate as a waiver of any other default, or as a modification in
any respect of the provisions of this Agreement. The subsequent acceptance of
any payment or performance pursuant to this Agreement shall not constitute a
waiver of any preceding default by a defaulting party or of any preceding event,
circumstance or condition permitting termination hereunder, other than default
in the payment of the particular payment or the performance of the particular
matter so accepted, regardless of the nondefaulting party's knowledge of the
preceding default or the preceding event, circumstance or condition, at the time
of accepting such payment or performance, nor shall the nondefaulting party's
acceptance of such payment or performance after termination constitute a
reinstatement, extension or renewal of this Agreement or revocation of any
notice or other act by the nondefaulting party.
Section 8.8 Integration: Amendment. This Agreement, including the exhibits
attached hereto, constitutes the entire agreement between the parties hereto
relative to the subject matter hereof. Any prior negotiations, correspondence or
understandings relative to the subject matter hereof shall be deemed to be
merged in this Agreement. This Agreement may not be amended or modified except
in writing, executed by each of the parties hereto. No waiver of any provision
of this Agreement shall be effective unless signed by the party against whom the
waiver is asserted.
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Section 8.9 Governing Law. This Agreement shall be governed by, and
construed in accordance with, the laws of the Commonwealth of Massachusetts.
Section 8.10 Notices. All notices and other communications provided for in
this Agreement shall be in writing and may be sent by telephone facsimile or may
be personally delivered or mailed by certified or registered United States mail,
return receipt requested, postage prepaid and addressed as follows:
(a) If to the Manager, to:
Overseas Management, Inc.
115 Perimeter Center Place
Suite 940
Atlanta, GA 30346-1223
Attn: Legal Department
(Facsimile No: 770-913-6756)
with a copy to:
Overseas Partners, Ltd.
Craig Appin House
P.O. Box HM 1581
8 Wesley Street
Hamilton HM GX Bermuda
Attn: Bruce M. Barone, President
(b) If to the Consultant, to:
Urban Retail Properties Co.
900 N. Michigan Avenue
Suite 1300
Chicago, IL 60611
Attn: Legal Department
(Facsimile No: (312) 915-3180)
with a copy to:
Urban Retail Properties Co.
900 N. Michigan Avenue
Suite 1300
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Chicago, IL 60611
Attn: Robert Powell
(Facsimile No: (312) 915-3180)
or to such other address as any party shall hereafter designate by notice to the
others as herein provided. Any notice, demand or request shall be effective upon
receipt.
Section 8.11 Captions. The paragraph headings herein contained are for
purposes of identification only and shall not be considered in construing this
Agreement.
Section 8.12 Limitation of Liability. No present or future member in Owner
shall have any personal liability, directly or indirectly, under or in
connection with this Agreement or any agreement made or entered into under or in
connection with 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
Consultant hereby waives any and all such personal liability. The limitations of
liability provided in this paragraph are in addition to, and not in limitation
of, any limitation on liability applicable to Owner provided by law or by any
other contract, agreement or instrument.
Section 8.13 Inspection by the Owner or Manager. Neither this Agreement
nor anything contained herein shall be deemed to limit Owner's and Manager's
right to enter upon or inspect the Center or to perform any repair or
maintenance or to do or perform any matter or thing required of Consultant
hereunder in the event of Consultant's failure to do so, and, without limitation
of their respective other rights concerning the Center, Owner and Manager shall
each have the right to do any or all of the foregoing in the event of such
failure.
Section 8.14 Joinder by Owner. Owner hereby joins in this Agreement for
the sole purposes of:
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(i) acknowledging and agreeing to the appointment of Consultant as
agent for Owner and Manager with respect to the duties and
obligations assumed by Consultant hereunder;
(ii) acknowledging and agreeing to the rights of the Consultant in
the event of a termination or proposed termination of the
Management Agreement as provided herein;
(iii) agreeing to maintain the minimum insurance set forth in
Section 5.5 and acknowledging and agreeing to the rights of
Consultant with respect to the Operating Account, the
duties and obligations of the Owner with respect to the
payment of costs and expenses incurred by Consultant on behalf
on Owner hereunder and the payment of Consultant's
compensation hereunder to the extent Manager is unable to do
so;
(iv) providing the indemnity set forth in Section 8.3 hereof, and
(v) acknowledging the rights, duties and obligations of Owner to
give notice or consent to, or waive obligations of,
Consultant, and perform such other express covenants of Owner,
as are provided herein.
Section 8.14 Counterparts. This Agreement may be executed in several
counterparts, each of which shall be deemed an original, but all of which shall
constitute one and the same document.
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IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement
on the day and year first above written.
OVERSEAS MANAGEMENT, INC..,
a Delaware corporation
By:/s/ Bruce M. Barone
--------------------------
Its: President
---------------------
"Manager"
URBAN RETAIL PROPERTIES CO.,
a Delaware corporation
By /s/
--------------------------
Its Senior Vice President
-----------------------
"Consultant"
Owner hereby joins in this Agreement for
the purposes set forth in Section 8.14 hereof.
COPLEY PLACE ASSOCIATES, LLC,
a Delaware limited liability company
By: OVERSEAS PARTNERS CAPITAL CORP.,
a Delaware corporation,
Managing Member
By:/s/ Bruce M. Barone
----------------------------
Its: President
---------------------------
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Schedule 7.1
COMPENSATION
As compensation for the Services provided under that certain Agreement for
Purchase of Consulting and Other Services (the "Agreement") to which this
schedule is attached, Consultant shall be entitled to receive a percentage fee
(the "Percentage Fee"). In addition, without limiting Consultant's rights,
duties's and obligations to incur and to pay other costs and expenses of Owner
from the Operating Account as provided in the Agreement, including without
limitation the provisions of Section 6.1 thereof, Consultant shall be entitled
to pay directly from the Operating Account (or to the extent paid out of the
Consultant's own funds, to reimburse itself directly from the Operating Account)
for certain costs incurred by Consultant on behalf of the Owner (the
"Reimbursable Costs").
PERCENTAGE FEE
The Percentage Fee shall be equal to the sum of the following with respect to
the revenues derived by Owner with respect to the Center:
(i) Four and one-half percent of gross revenues derived from the
operation of, or received pursuant to rent or business interruption
insurance with respect to, parking facilities in the Center leased
or operated by Owner; plus
(ii) Two and two-tenths percent of all amounts paid by tenants under, or
received pursuant to rent or business interruption insurance with
respect to, leases relating primarily to office space, including,
without limitation, base rent, escalated rent based upon the
Consumer Price Index or any other standard, payments to amortize
tenant work, and payments with respect to real estate taxes,
insurance, repairs, maintenance, utilities and other operating
expenses and payments for special services; plus
(iii) (a) Two and seven-tenths percent of all amounts paid by tenants
under, or received pursuant to rent or business interruption
insurance with respect to, all other leases, including,
without limitation, base or minimum rent, escalated rent, rent
based upon sales or receipts, and payments to amortize tenant
work; plus
(b) Nine percent of all amounts collected under such other leases
as common area charges (including, without limitation, charges
for common area heating, ventilating and air conditioning),
including in such common area charges amounts charged to
tenants for managing and supervising the common area and of
amounts collected from third parties as
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reimbursement for costs of maintaining and operating
facilities shared with such third parties.
Reimbursable Costs
Reimbursable Costs are the following costs, to the extent such costs are
provided for in the Approved Annual Budget (or any uncommitted contingency
amount) and subject to the provisions of Section 6.1 of the Agreement, are
allocable to the Center (such allocation being determined on a reasonable and
fair basis) and are incurred as Consultant hereunder rather than any other
capacity (such as, for example, a member of Owner): (a) the cost of Consultant's
on-site computer/word processing facilities; (b) the compensation and fringe
benefits of the secretaries in said on-site office; (c) travel (including
transportation, lodging and meals) and entertainment costs; (d) the "Allocated
Overhead Compensation Cost" (as defined below) of Consultant's and its
Affiliates' officers and employees incurred in connection with the Consultant's
leasing activities hereunder or in working with or developing relationships with
governmental or quasi-governmental authorities and personnel or tenants or
department stores; (e) the Allocated Overhead Compensation Cost of Consultant's
and its Affiliates' officers and employees and all amounts paid to third parties
in connection with architectural and engineering design, plan review,
supervision and inspection, both on- and off-site, relating to tenant spaces in
the Center and on-site review and supervision construction of landlord's and
tenant's work relating to tenant spaces; (f) the Allocated Overhead Compensation
Cost of Consultant's and its Affiliates' officers and employees, and all amounts
paid to third parties in connection with legal assistance, in drafting,
negotiating and executing leases for space in the Center; (g) expenses incurred
in connection with real estate or property tax consulting (including preparation
of documents related thereto), in effort to maintain or reduce taxes applicable
to or against the Center or Owner; and (h) the Allocated Overhead Compensation
Cost of the Consultant's and its Affiliates' officers and employees, and the
expenses, both direct and indirect, incurred relative to on- and off-site
marketing and promotional services rendered or contracted for by the Consultant
for the Center. As used in this Schedule 7.1, "Allocated Overhead Compensation
Cost" shall mean that percentage of an employee which the Consultant customarily
charges to projects to reflect the compensation and benefits of such employee
and the overhead attributable to such employee [as of the date hereof, such
percentage is approximately 260%]. As used in this Schedule 7.1, "Affiliate"
shall mean any entity or individual controlling, controlled by or under common
control with Consultant or JMB. Except as expressly provided above, in no event
shall Owner be required to pay, or shall the Consultant be entitled to any
reimbursement for:
(i) Consultant's off-site overhead, office or administrative expenses;
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(ii) the cost of gross salary and wages and other compensation,
payroll taxes, insurance, worker's compensation, pension
benefits and any other benefits of Consultant's home office
personnel; and
(iii) the cost of general accounting and reporting services provided
by the Consultant from any off-site office (except for a
reasonable allocation of the Allocated Overhead Compensation
Cost of the regional accounting manager who performs property
accounting services for the Center), it being further
understood that the fees and expenses of any independent
accountants shall be borne by the Owner.
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EXHIBIT 10.rrr
CONSULTING SUBORDINATION AGREEMENT
THIS CONSULTING SUBORDINATION AGREEMENT ("Agreement") is dated as of the
23rd day of January, 1997, by and among COPLEY PLACE ASSOCIATES, LLC, a Delaware
limited liability company ("Copley"), COPLEY PLACE ASSOCIATES NOMINEE
CORPORATION, a Delaware corporation, the sole shareholder of which is Copley
('Nominee"; Copley and Nominee are hereinafter referred to individually and
collectively as "Owner"), COPLEY FUNDING CORPORATION, a Delaware corporation
("Funding"), COPLEY FINANCING CORPORATION, a Delaware corporation ("Financing"),
THE AETNA CASUALTY AND SURETY COMPANY, a Connecticut corporation ("Aetna"),
OVERSEAS MANAGEMENT, INC., a Delaware corporation ("Manager"), and URBAN RETAIL
PROPERTIES CO., a Delaware corporation ("Consultant").
RECITALS
WHEREAS, Owner is the owner of a leasehold interest in the property and
all improvements thereon encumbered by the "Loan Documents" (as defined below)
(collectively, the "Property"); and
WHEREAS, Copley Place Associates, an Illinois general partnership ("Copley
Partnership"), as predecessor-in-interest to Copley, executed and delivered the
loan documents described in "A" attached hereto (collectively, the "Loan
Documents"). Unless otherwise defined herein, all capitalized terms used in this
Agreement shall have the meaning set forth in Exhibit "A". The loan evidenced
and secured by the Loan Documents being hereinafter referred to as the "Loan";
and Aetna, as holder of the Loan Documents, and any and all subsequent holders
of the Loan Documents shall be referred to herein as the "Holder and
WHEREAS, Consultant, as successor in interest to JMB Properties Urban
Company, an Illinois general partnership ("JMB Properties") and Copley
Partnership have terminated that certain Management Agreement, dated as of
September 1, 1983 (the "Prior Management Agreement"); which such termination was
made with the consent of Aetna and which such termination is effective as of the
date hereof; and
WHEREAS, after the termination of the Prior Management Agreement, Copley
Partnership was merged into Copley on the date hereof with the consent of Aetna.
WHEREAS, after the merger of Copley Partnership into Copley, Overseas
Partners Capital Corp., a Delaware corporation ("Overseas"), purchased 66-2/3%
of
1
<PAGE> 2
the membership interests in Copley, and Overseas was admitted as the managing
member of Copley with the consent of Aetna (the "Purchase & Transaction"); and
WHEREAS, immediately after the Purchase Transaction and with the consent
of Aetna, Owner and Manager entered into that certain Management Agreement dated
as of the date hereof, a copy of which is attached hereto as Exhibit "B" (as
renewed, extended, amended or delegated in accordance with the terms hereof, the
"Management Agreement"), to provide for the management of the Property, which
Management Agreement provides for the payment of certain fees to Manager for the
management of the Property; and
WHEREAS, immediately after the execution of the Management Agreement and
with the consent of Aetna, Manager and Consultant entered into that certain
Agreement for Purchase of Consulting and Other Services dated as of the date
hereof, a copy of which is attached hereto as Exhibit "B" (as renewed, extended,
amended or delegated in accordance with the terms hereof, the "Consulting
Agreement"), to provide for the performance by consultant of certain consulting,
retail leasing and other services for the Property, which Consulting Agreement
provides for the payment of certain fees by Manager to Consultant for the
services rendered by Consultant thereunder; and
WHEREAS, it was a condition to Aetna's consent to the foregoing
transactions that Consultant, as an affiliate of JMB Realty Corporation, a
member of Owner, agree to accept payment of the amounts due to it under the
Consulting Agreement as set forth herein, and Owner, Manager and Consultant
agree to the payment and acceptance of the amounts due to Consultant under the
Consulting Agreement as set forth herein.
NOW, THEREFORE, in consideration of the foregoing recitals and for other
good and valuable consideration, the receipt and adequacy of which are hereby
acknowledged, Owner, Funding, Financing, Aetna, Manager and Consultant hereby
agree as follows:
1. Fee Deferral and Payment Subordination. No "Percentage Fee" (as defined
in Schedule 7.1 of the Consulting Agreement.) payable pursuant to Section 7.1 of
the Consulting Agreement (collectively, the "CONSULTANT FEES") nor any leasing
commissions payable to Consultant or any affiliate thereof relating to leases of
space in the Property ("Leasing Commissions") shall be paid to Consultant or any
affiliate thereof out of Proceeds (as hereinafter defined) until Holder has
received all amounts due Holder under the Loan Documents and the rights of
Consultant or any affiliate thereof to payment of such Consultant Fees or
Leasing Commissions shall be subject and subordinate to Holder's rights to
payment under the Loan Documents as provided herein. All Consultant Fees and
Leasing
2
<PAGE> 3
Commissions shall be deferred and shall be payable to Consultant as provided in
Section 10 hereof. In addition, until Holder has received all amounts due to
Holder under the Loan Documents, no costs and expenses incurred by Consultant
under the Consulting Agreement which are reimbursable by Manager or Owner
thereunder (including "Reimbursable Costs", as defined in Schedule 7.1 of the
Consulting Agreement) shall be paid by Owner or Manager to Consultant out of the
Proceeds unless such payments or reimbursements are in accordance with the
Budget (as such term is defined in the Loan Documents), and Consultant's rights
to reimbursement of such costs and expenses shall be subject and subordinate to
Holder's rights to payment under the Loan Documents except to the extent such
payments or reimbursements are in accordance with the Budget. Payment of
Consultant Fees and Leasing Commissions and reimbursement of such costs and
expenses from sources other than the Proceeds is not restricted. This Agreement
shall not be deemed to prohibit the hiring by Owner, Manager or Consultant of
non-affiliated third party leasing agents with regard to leasing the Property,
or the payment of market rate fees or commissions to such leasing agents from
the Proceeds. The term "Proceeds" shall mean and refer to total income,
revenues, rentals, proceeds from sale or refinance, and other consideration
received by or for the account of Owner or any affiliate thereof relating to the
Property (which shall include income from any source, including proceeds of
casualty insurance not used to make repairs to the Property and not applied in
reduction of the outstanding principal balance of the Loan, but which shall
exclude the capital contributions made by the members in Owner).
2. Performance by Consultant. Subject to paragraph 11 hereof, until the
earlier of (a) payment of the Loan in full, or (b) six (6) months after Owner
ceases to pay the scheduled payments under the Note (but in no event later than
one hundred and twenty (120) days after maturity of the Loan (whether by
acceleration or otherwise)), Consultant agrees to continue to perform all of its
obligations under the Consulting Agreement in accordance with its terms and
subject to all rights (including termination rights) of Consultant thereunder,
notwithstanding that the provisions of this Agreement may prohibit or restrict
the payment of any Consultant Fees or Leasing Commissions thereunder. Subject to
the foregoing, no election by Manager or Consultant to terminate the Consulting
Agreement shall become effective unless and until Manager has obtained Holder's
prior written consent to undertake Consultant's functions or a replacement has
been appointed by Manager with Holder's prior written consent, which consent may
be withheld in Holder's sole and absolute discretion.
3. Trust for Prohibited Payments. Neither Consultant nor any affiliate
thereof shall accept or receive any Consultant Fees or Leasing Commissions, nor
any reimbursement of costs and expenses from Owner or Manager if the payment of
such Consultant Fees or Leasing Commissions, or reimbursements of costs or
3
<PAGE> 4
expenses, is prohibited by this Agreement. If Consultant accepts or receives any
payment of Consultant Fees or Leasing Commissions, or reimbursements of costs or
expenses, which is prohibited under this Agreement, Consultant shall segregate
such Consultant Fees, Leasing Commissions, or reimbursements of costs and
expenses from all other funds and shall hold such Consultant Fees, Leasing
Commissions, or reimbursements of costs or expenses in trust for the benefit of
Holder and immediately pay such amounts to Holder at its address indicated by
the Loan Documents.
4. Rights of Holder. Without limiting Holder's rights and remedies at law
or in equity, Holder may enforce this Agreement against Owner, Manager,
Consultant and any affiliate thereof, by injunction or action for specific
performance. No right or remedy of Holder in connection with this Agreement
shall be prejudiced or impaired in any way by any act or failure to act by
Holder and, without limiting the foregoing, Holder may, at any time and from
time to time, without the consent of or notice to Owner, Manager and Consultant
and without impairing or releasing the subordinations described herein, do any
one or more of the following: (a) change the manner, place or terms of payment
of, or renew or alter the Loan; (b) sell, exchange, release or otherwise deal
with any property pledged, mortgaged or otherwise securing the Loan; (c) release
any person or entity liable for the Loan; or (d) exercise or refrain from
exercising any rights or remedies against Owner or the Property under the Loan.
5. Representations and Warranties. Consultant hereby represents and
warrants to Holder that no agreements have been entered into by Consultant which
provide for the management of all or any part of the Property. Consultant hereby
represents and warrants to Holder (i) that Consultant has received, reviewed and
approved all of the Loan Documents, and (ii) that no Consultant Fees or Leasing
Commissions have been paid to Manager or any affiliate thereof out of Proceeds.
6. Restrictive Covenants. Consultant nor any affiliate thereof shall enter
into any agreements which provide for the management of all or any part of the
Property, without Holder's prior written consent, which Holder may not
unreasonably withhold but Holder may condition its consent to any such agreement
upon the execution by the parties thereto and the delivery to Holder of an
agreement acceptable to Holder that is substantially in the form of this
Agreement. Consultant nor or any affiliate thereof shall not enter into any
modifications, amendments or supplements to the Consulting Agreement that would
have a material adverse effect upon Holder's rights under the Loan Documents, or
that would violate or conflict with the provisions of this Agreement without
Holder's prior written consent, which consent Holder may withhold in its sole
and absolute discretion and Holder may condition its consent to any such
modification, amendment, or supplement upon the reaffirmation by Owner, Manager
and
4
<PAGE> 5
Consultant of this Agreement in form and substance acceptable to Holder.
7. Events of Default. Default by any or all of Owner, Manager, Consultant
or any affiliate thereof in the performance of any obligation contained herein
or the violation by any or ail of Owner, Manager, Consultant or any affiliate
thereof of any restriction contained herein shall constitute an Event of Default
hereunder.
Notwithstanding the foregoing, provided that no event requiring consent
of Holder under the Loan Documents has occurred without Holder's consent first
having been obtained, a default in an obligation other than either an obligation
to pay money or a covenant which restricts Owner, Manager, Consultant or any
affiliate thereof from making any payment of money to any person (a "Non
Monetary Default") shall not constitute an Event of Default unless and until the
"Notice Period" (as hereinafter defined) for such Non Monetary Default shall
have expired without the default having been cured. The Notice Period for a Non
Monetary Default shall commence when notice thereof has been delivered to Owner,
Manager and Consultant, and shall end thirty (30) days later, provided, however,
that in the case of a Non Monetary Default not capable of being cured within
thirty (30) days, the Notice Period shall be extended for as long as necessary
to complete such cure provided that Owner, Manager or Consultant, as applicable,
is proceeding continuously with due diligence to complete such cure.
Notwithstanding said qualification on the definition of an Event of Default,
Owner, Manager and Consultant shall not be entitled to notice or an opportunity
to cure any Non Monetary Default which occurs after, and within twelve
consecutive months of, Owner's, Manager or Consultant's receipt of notices from
Holder concerning two prior Non Monetary Defaults.
8. Accounting. Owner, Manager and Consultant shall provide Holder on or
before each May 15, August 15, November 15 and February 15 during the term
hereof with an accounting (each, an "Accounting"), in form and substance
acceptable to Holder and including the calculations by which the amount of
Consultant Fees and Leasing Commissions were determined, setting forth the
amount of Consultant Fees and the amount of Leasing Commissions which would have
been paid to Consultant by Manager or Owner but for the terms of this Agreement.
Each Accounting shall specify all Consultant Fees and all Leasing Commissions
earned during the immediately preceding calendar quarter, the date each such
Management Fee or Leasing Commission would have been paid but for the terms of
this Agreement, and the cumulative amount of Consultant Fees and Leasing
Commissions owing to Consultant since the delivery of the Consulting Agreement,
together with the cumulative six percent (6.0%) non-compounded return on any
such amount described in paragraph 10 hereof. Each Accounting shall be certified
by Owner, Manager and Consultant to have been prepared in
5
<PAGE> 6
accordance with the terms of this Agreement and to be true, accurate and
complete in all material respects.
9. Holder's Audit Rights.
(a) Holder may notify Owner, Manager and Consultant within sixty
(60) days after receipt of any Accounting that Holder disputes or questions any
computation or item contained in such Accounting. If Holder makes such
notification, the parties shall meet in good faith within twenty (20) days after
Holder's notice to resolve such disputed items among themselves. If, despite
such good faith efforts, the parties are unable to resolve the dispute at such
meeting or within ten (10) days thereafter, the items shall be resolved by an
independent certified public accountant who shall be designated by Holder (and
reasonably approved by Owner, Manager and Consultant) within fifteen (15) days
after such ten (10) day period. The determination of such accountant shall be
final, and such accountant shall endeavor to render a determination within
twenty (20) days after appointment. The fees of such accountant shall be paid by
Holder unless such review shall indicate that the disputed Accounting set forth
Consultant Fees and/or Leasing Commissions in excess of actual Consultant Fees
and/or Leasing Commissions by four percent (4%) or more, in which case Owner
shall pay all such fees, Any adjustment in the amount of Consultant Fees
and/or Leasing Commissions shall be reflected in the Accounting immediately
following such disputed Accounting.
(b) Owner, Manager and Consultant shall keep and maintain at all
times full and accurate books of account and records adequate to correctly
reflect all items required in order to calculate Consultant Fees and Leasing
Commissions. All such books and records shall be kept at Overseas Management,
Inc., 115 Perimeter Center Place, Suite 940, Atlanta, Georgia 30346-1223, or
at such office in the Commonwealth of Massachusetts as Owner may reasonably
select, provided Owner gives Holder prior written notice thereof. Such books and
records shall be available until at least five (5) years after repayment in full
of the Loan. Holder shall have the right to inspect, copy and audit such books
of account and records at Holder's expense, during reasonable business hours,
and upon reasonable notice to Owner whether such books and records are in the
possession of Owner or any agent of Owner, for the purpose of verifying the
accuracy of any Accounting. All statements required under this Agreement shall
be in addition to any other financial or operating statements required by Holder
from Owner pursuant to the Loan Documents.
10. Payment of Consultant Fees and Leasing Commissions. All Consultant
Fees and Leasing Commissions, together with a six percent (6%) non-compounded
return thereon (calculated for each unpaid amount of Consultant Fees or Leasing
6
<PAGE> 7
Commissions from the date such Consultant Fees would have been paid pursuant to
the Consulting Agreement or the date such Leasing Commissions were earned, as
applicable, but for the terms of this Agreement), may be paid by Owner or
Manager to Consultant from Proceeds only after repayment in full of the Loan,
provided, however, that Leasing Commissions considered in calculation of the
Copley Return (as defined in that certain Equity Payment Agreement dated as of
March 1, 1992, by and among Copley Partnership, Aetna, Funding and Financing)
shall not exceed five dollars ($5.00) per leased square foot. Notwithstanding
the foregoing, for purposes of the Equity Payment Agreement, the amounts taken
into account for purposes of the calculation of the Copley Return as a result of
this Agreement and the "Management Subordination" (as defined below) shall not
be counted twice if they represent amounts paid to Manager by Copley under the
Management Agreement and then paid by Manager to Consultant under the Consulting
Agreement. As used herein, the "MANAGEMENT SUBORDINATION" means that certain
Management and Leasing Fee Subordination Agreement, dated as of the date hereof,
by and among Copley, Nominee, Funding, Financing, Aetna and Manager.
11. Successors and Assigns. This Agreement shall be binding upon and
shall inure to the benefit of the parties and their respective successors,
assigns and transferees; provided, however, that notwithstanding anything to the
contrary contained in the Consulting Agreement or Section 2 hereof, the
Consulting Agreement and Section 2 hereof and all of Owner's, Manager's and
Consultant's rights and interests thereunder may not be assigned without the
Holder's prior written consent other than pursuant to the Consulting Agreement,
and shall automatically terminate upon any judicial or nonjudicial foreclosure
of the Mortgage or the acceptance of a deed in lieu of foreclosure by the Holder
or the appointment of a receiver to manage the Property (except for rights and
obligations relating to acts or events occurring prior to such termination).
12. Governing Law. This Agreement shall be governed by and construed and
enforced in accordance with the laws of the Commonwealth of Massachusetts.
7
<PAGE> 8
13. Notices. All notices hereunder shall be in writing and shall be
given personally or by United States certified or registered mail (return
receipt requested) addressed as follows:
Owner and Funding:
Copley Place Associates, LLC
c/o Overseas Partners Capital Corp.
115 Perimeter Center Place Suite 940
Atlanta, Georgia 30346-1223
Attention: Legal Department
with a copy to:
Overseas Partners Capital Corp.
Craig Appin House
P.O. Box HM 1581
8 Wesley Street
Hamilton HM GX Bermuda
Attention: Bruce M. Barone, President
with a copy to:
JMB Realty Corporation
900 North Michigan Avenue Suite 1900
Chicago, Illinois 60611
Attention: Legal Department
Aetna and Financing:
The Aetna Casualty and Surety Company
One Tower Square
Hartford, Connecticut 06183-2020
Attention: Robert P. Scoville
8
<PAGE> 9
Manager:
Overseas Management, Inc.
115 Perimeter Center Place
Suite 940
Atlanta, Georgia 30346-1223
Attention: Legal Department
with a copy to:
Overseas Partners Capital Corp.
Craig Appin House
P.O. Box HM 1581
8 Wesley Street
Hamilton HM GX Bermuda
Attention: Bruce M. Barone, President
Consultant:
Urban Retail Properties Co.
900 North Michigan Avenue
Suite 1300
Chicago, Illinois 60611
Attention: Legal Department
Notices given in accordance herewith shall be deemed delivered upon personal
delivery or on the date of delivery shown on the return receipt, as applicable.
Any party may change its address for notices by a notice given in accordance
with this Section 13.
14. Termination. This Agreement shall terminate upon the full payment of
the outstanding principal balance of the Loan, all accrued interest thereon and
all other amounts payable under the Loan Documents.
15. Severability. If any of the provisions of this Agreement are held by
a court of competent jurisdiction to be unenforceable as applied to particular
facts, then all of the other provisions of this Agreement (and said provision as
applied to other facts) shall remain in full force and effect.
16. No Waiver. No party shall be deemed to have waived any of its
rights hereunder unless the waiver is express and is contained in a writing
signed by the waiving party.
9
<PAGE> 10
17. Acknowledgement. Owner, Manager and Consultant hereby acknowledge that
Holder, Funding and Financing would not consent to the transactions contemplated
by the Recitals without this Agreement and that Holder, Funding and Financing
are relying upon this Agreement in executing and delivering their written
consent to the Purchase Transaction.
18. Limitations on Liability. The obligations and liabilities of Copley
and the present or future members in Copley and the present or future
shareholders, officers and directors of Nominee hereunder are subject to the
exculpatory provisions and exceptions therefrom contained in Paragraph 43 of the
Mortgage. In the case of any default by Consultant, the damages recoverable by
Holder against Consultant shall be limited to the aggregate Consultant Fees paid
to Consultant after the date of this Agreement, plus all costs and expenses paid
to or accepted by Consultant in violation of Section 3 hereof, respectively, but
there shall be no other limitation on the equitable or legal rights or remedies
of Holder.
19. Counterpart Originals. This Agreement may be executed in
counterparts, each of which shall be deemed to constitute the same agreement.
20. Consent of Funding, Financing and Aetna. Funding, as owner of the Note
and Mortgage, and Financing and Aetna, as collateral assignees of the Note and
the Mortgage, execute this Agreement to acknowledge, consent and agree to the
terms of this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
Copley:
COPLEY PLACE ASSOCIATES, LLC,
a Delaware limited liability company
By: OVERSEAS PARTNERS CAPITAL CORP.,
a Delaware corporation
By: /s/ Bruce M. Barone
--------------------
Name: Bruce M. Barone
------------------
Title: President
-----------------
10
<PAGE> 11
Nominee:
COPLEY PLACE ASSOCIATES NOMINEE CORPORATION,
a Delaware corporation
By: /s/ Paul C. Nielsen
-------------------
Name: Paul C. Nielsen
------------------
Title: Vice President
-----------------
Funding:
COPLEY FUNDING CORPORATION,
a Delaware corporation
By: /s/ Paul C. Nielsen
--------------------
Name: Paul C. Nielsen
------------------
Title: Vice President
-----------------
11
<PAGE> 12
Financing:
COPLEY FINANCING CORPORATION,
a Delaware corporation
By:/s/ Alan Meadelson
--------------------------------
Name: /s/ Alan Meadelson
------------------------------
Title: President
-----------------------------
Aetna:
THE AETNA CASUALTY AND SURETY COMPANY,
a Connecticut corporation
By: /s/ John H. Mottey
-------------------------------
Name: John H. Mottey
------------------------------
Title: Vice President
-----------------------------
Manager:
OVERSEAS MANAGEMENT, INC.,
a Delaware corporation
By: /s/ Bruce M. Barone
--------------------------------
Name: Bruce M. Barone
------------------------------
Title: President
-----------------------------
Consultant:
URBAN RETAIL PROPERTIES CO.,
a Delaware corporation
By: /s/ Michael Hilborn
-------------------------------
Name: Michael Hilborn
------------------------------
Title: SR. V. P.
-----------------------------
12
<PAGE> 1
EXHIBIT 21
SUBSIDIARIES OF OVERSEAS PARTNERS LTD.
Corporation Jurisdiction of Incorporation
Overseas Partners Re, Ltd. Bermuda
Overseas Partners Capital Corp. Delaware
OPL Funding Corp. Delaware
Overseas Partners Credit, Inc. Cayman Islands
Overseas Partners Capital (Massachusetts), Inc. Massachusetts
Overseas Partners Capital (Illinois), Inc. Delaware
Overseas Management, Inc. Massachusetts
Overseas Partners (AFC), Inc. Georgia
Overseas Partners (333), Inc. Illinois
Copley One LLC. Massachusetts
Copley Place Associates, LLC. Massachusetts
<PAGE> 1
EXHIBIT 23
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in Registration Statement Nos.
33-5581 (on Form S-3) and 33-72102 (on Form S-3) of Overseas Partners Ltd. of
our report dated January 9, 1997 appearing in this Annual Report on Form 10-K
of Overseas Partners Ltd. for the year ended December 31, 1996.
DELOITTE & TOUCHE
Hamilton, Bermuda
March 17, 1997
<TABLE> <S> <C>
<ARTICLE> 7
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM OVERSEAS'
CONSOLIDATED BALANCE SHEETS AND THE STATEMENTS OF CONSOLIDATED INCOME AND IS
QUALIFIED IN ITS ENTIRETY BY REFERENCE TO SUCH FINANCIAL STATEMENTS.
</LEGEND>
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> YEAR
<FISCAL-YEAR-END> DEC-31-1996
<PERIOD-START> JAN-01-1996
<PERIOD-END> DEC-31-1996
<DEBT-HELD-FOR-SALE> 0
<DEBT-CARRYING-VALUE> 54,194
<DEBT-MARKET-VALUE> 72,585
<EQUITIES> 869,549
<MORTGAGE> 0
<REAL-ESTATE> 0
<TOTAL-INVEST> 1,478,685
<CASH> 394,343
<RECOVER-REINSURE> 0
<DEFERRED-ACQUISITION> 27,104
<TOTAL-ASSETS> 3,192,169
<POLICY-LOSSES> 265,166
<UNEARNED-PREMIUMS> 104,412
<POLICY-OTHER> 0
<POLICY-HOLDER-FUNDS> 0
<NOTES-PAYABLE> 713,790
0
0
<COMMON> 13,500
<OTHER-SE> 1,948,128
<TOTAL-LIABILITY-AND-EQUITY> 3,192,169
531,088
<INVESTMENT-INCOME> 74,223
<INVESTMENT-GAINS> 91,758
<OTHER-INCOME> 150,741
<BENEFITS> 236,293
<UNDERWRITING-AMORTIZATION> 50,306
<UNDERWRITING-OTHER> 0
<INCOME-PRETAX> 412,027
<INCOME-TAX> 10,802
<INCOME-CONTINUING> 401,225
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 401,225
<EPS-PRIMARY> 2.97
<EPS-DILUTED> 0
<RESERVE-OPEN> 214,207
<PROVISION-CURRENT> 275,876
<PROVISION-PRIOR> 2,374
<PAYMENTS-CURRENT> 132,480
<PAYMENTS-PRIOR> 94,811
<RESERVE-CLOSE> 265,166
<CUMULATIVE-DEFICIENCY> 0
</TABLE>
<PAGE> 1
EXHIBIT 99.c
<TABLE>
<CAPTION>
OPL
[LOGO]
<S> <C> <C>
OVERSEAS PARTNERS LTD.
NUMBER SHARES
INCORPORATED IN THE
ISLANDS OF BERMUDA UNDER THE
COMMON STOCK COMPANIES (INCORPORATION BY REGISTRATION) ACT, 1970 SEE REVERSE FOR CERTAIN
DEFINITIONS
THIS CERTIFIES THAT
- VOID -
IS THE OWNER OF
FULLY PAID AND NON-ASSESSABLE SHARES OF THE PAR VALUE OF $.10 EACH OF THE COMMON STOCK OF
OVERSEAS PARTNERS LTD.,
transferable only in accordance with the Memorandum of Association and the Bye-laws of the said Company. Given under the
Common Seal of the Company as of the date of this Certificate.
Witness the facsimile seal of the Corporation and the facsimile signatures of its duly authorized officer.
Dated:
SECRETARY PRESIDENT AND CHIEF EXECUTIVE OFFICER
OVERSEAS PARTNERS LTD.
CORPORATE
[SEAL]
1983
BERMUDA
COUNTERSIGNED AND REGISTERED:
FIRST UNION NATIONAL BANK
(PHILADELPHIA, PA.)
TRANSFER AGENT AND REGISTRAR
BY
AUTHORIZED SIGNATURE
</TABLE>
