<PAGE>
UNITED STATES OF AMERICA
------------------------
SECURITIES AND EXCHANGE COMMISSION
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WASHINGTON, D.C. 20549
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FORM 10 - Q
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QUARTERLY REPORT UNDER SECTION 13 OR 15 (D)
OF THE SECURITIES EXCHANGE ACT OF 1934
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For the Quarter Ended September 30, 1998 Commission file Number 0-11538
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Overseas Partners Ltd.
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(Exact name of registrant as specified in its charter)
Islands of Bermuda N/A
- ------------------------------------------------------------------------------
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
Mintflower Place, 8 Par-la-Ville Road, Hamilton HM 08, Bermuda
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(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code (441) 295-0788
--------------------
Not Applicable
-------------------------------------
Former name, former address and former fiscal year, if changed since last report
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, and (2) has been subject to such filing
requirements for the past 90 days.
YES X NO
--- ---
Common Stock, par value $.10 per share
--------------------------------------
(Title of Class)
127,000,000 Shares
------------------------------
Outstanding at November 13, 1998
<PAGE>
PART I. FINANCIAL INFORMATION
-----------------------------
OVERSEAS PARTNERS LTD. AND SUBSIDIARIES
---------------------------------------
CONSOLIDATED BALANCE SHEETS
---------------------------
(U.S.$ IN THOUSANDS, EXCEPT SHARE AND PER SHARE AMOUNTS)
---------------------------------------------------------
September 30, December 31,
-------------- ------------
1998 1997
-------------- ------------
(Unaudited)
--------------
ASSETS:
Cash and cash equivalents $ 135,228 $ 355,056
Investments (principally at fair value) 2,169,168 1,821,837
Receivables:
Interest, premiums and other 326,868 144,869
Rentals 29,367 14,929
Deposits with insurers 118,817 74,162
Deferred acquisition costs 79,194 47,701
Real Estate & Leasing:
Operating leases with UPS 101,963 297,708
Finance leases 47,104 48,035
Hotel 165,720 167,333
Office buildings 808,607 621,346
Other assets
Common Stock held for stock plans 20,661 24,859
Goodwill 22,811 24,756
Other 28,342 25,078
---------- ----------
Total Assets $4,053,850 $3,667,669
========== ==========
LIABILITIES & MEMBERS' EQUITY:
Liabilities:
Accrued losses and loss expenses $ 427,564 $ 338,425
Accounts payable and other accruals 74,286 48,225
Unearned premiums 331,420 185,425
Deferred income taxes 70,076 64,478
Debt 852,673 758,416
Minority interest 46,124 45,538
---------- ----------
Total Liabilities 1,802,143 1,440,507
---------- ----------
Members' Equity:
Preference stock, par value $0.10 per share;
authorized 200,000,000 shares; none issued --- ---
Common Stock, par value $0.10 per share;
authorized 900,000,000 shares; issued and
outstanding, 127,000,000 shares in 1998 and
131,000,000 shares in 1997 12,700 13,100
Contributed surplus 31,307 26,642
Retained earnings 2,207,700 2,187,420
---------- ----------
Total Members' Equity 2,251,707 2,227,162
---------- ----------
Total Liabilities & Members' Equity $4,053,850 $3,667,669
========== ==========
See notes to consolidated financial statements
<PAGE>
OVERSEAS PARTNERS LTD. AND SUBSIDIARIES
---------------------------------------
CONSOLIDATED STATEMENTS OF INCOME
----------------------------------
(U.S.$ IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
-----------------------------------------------
(UNAUDITED)
-----------
<TABLE>
<CAPTION>
Three Months Ended September 30, Nine Months Ended September 30,
----------------------------------- --------------------------------
1998 1997 1998 1997
---- ---- ---- ----
<S> <C> <C> <C> <C>
REVENUES:
Reinsurance premiums written $ 255,461 $113,103 $ 684,720 $ 572,615
Change in unearned premiums (57,403) 31,128 (145,995) (128,212)
--------- -------- --------- ---------
Reinsurance premiums earned 198,058 144,231 538,725 444,403
Commission income 1,500 --- 4,569 ---
Operating leases with UPS 7,009 10,127 27,271 30,414
Finance leases 972 998 2,937 3,021
Hotel 25,747 22,121 69,656 62,751
Office buildings 35,592 28,634 94,111 80,556
Gain on sale of Boeing 757 aircraft 11,794 --- 11,794 ---
Interest income 8,965 14,551 40,786 41,923
Net holding gain (loss) on trading securities (135,348) 57,705 (40,388) 190,081
Amortization of held-to-maturity securities 3,204 1,235 5,811 3,626
Dividends 3,103 778 12,211 7,471
--------- -------- --------- ---------
160,596 280,380 767,483 864,246
--------- -------- --------- ---------
EXPENSES:
Losses and loss expenses 104,249 71,496 277,020 220,454
Commissions, taxes and other 28,445 16,191 79,120 51,131
Depreciation 9,064 7,554 26,235 22,467
Real estate and leasing operating and
maintenance expenses 37,516 28,108 101,360 90,293
Interest expense, net 14,453 16,824 45,964 48,232
Minority interest in earnings 707 862 1,867 218
Other 2,246 1,589 6,656 4,653
--------- -------- --------- ---------
196,680 142,624 538,222 437,448
--------- -------- --------- ---------
INCOME (LOSS) BEFORE INCOME TAXES (36,084) 137,756 229,261 426,798
INCOME TAXES (3,041) (7,539) (10,129) (10,952)
--------- -------- --------- ---------
NET INCOME (LOSS) $ (39,125) $130,217 $ 219,132 $ 415,846
========= ======== ========= =========
NET INCOME (LOSS) PER SHARE $ (0.31) $ 0.99 $ 1.73 $ 3.17
========= ======== ========= =========
</TABLE>
See notes to consolidated financial statements.
<PAGE>
OVERSEAS PARTNERS LTD. AND SUBSIDIARIES
---------------------------------------
CONSOLIDATED STATEMENTS OF MEMBERS' EQUITY
------------------------------------------
NINE MONTHS ENDED SEPTEMBER 30, 1998 AND 1997
---------------------------------------------
(U.S.$ IN THOUSANDS)
--------------------
(UNAUDITED)
-----------
<TABLE>
<CAPTION>
Preference Common Stock Contributed Retained Total
Stock Shares Amount Surplus Earnings Members' Equity
---------- -------------------------------- ----------- ----------- ---------------
<S> <C> <C> <C> <C> <C> <C>
Balance - January 1, 1997 $ --- 135,000 $13,500 $25,331 $1,883,966 $1,922,797
Net Income --- --- --- --- 415,847 415,847
Dividend declared ($.90 per share) --- --- --- --- (117,101) (117,101)
Gain on issuance of Common Stock held for --- --- --- 1,311 --- 1,311
stock plans
Retirement of Common Stock --- (4,000) (400) --- (56,560) (56,960)
---------- ------- ------- ------- ---------- ----------
Balance - September 30, 1997 $ --- 131,000 $13,100 $26,642 $2,126,152 $2,165,894
========== ======= ======= ======= ========== ==========
Balance - January 1, 1998 $ --- 131,000 $13,100 $26,642 $2,187,420 $2,227,162
Net Income --- --- --- --- 219,132 219,132
Dividend declared ($1.04 per share) --- --- --- --- (131,252) (131,252)
Gain on issuance of Common Stock held for --- --- --- 4,665 --- 4,665
stock plans
Retirement of Common Stock --- (4,000) (400) --- (67,600) (68,000)
---------- ------- ------- ------- ---------- ----------
Balance - September 30, 1998 $ --- 127,000 $12,700 $31,307 $2,207,700 $2,251,707
========== ======= ======= ======= ========== ==========
</TABLE>
See notes to consolidated financial statements.
<PAGE>
OVERSEAS PARTNERS LTD. AND SUBSIDIARIES
---------------------------------------
CONSOLIDATED STATEMENTS OF CASH FLOWS
-------------------------------------
(U.S.$ IN THOUSANDS)
--------------------
(UNAUDITED)
-----------
<TABLE>
<CAPTION>
Nine Months Ended September 30,
--------------------------------
1998 1997
---- ----
<S> <C> <C>
CASH FLOW FROM OPERATING ACTIVITIES:
Net income $ 219,132 $ 415,846
Adjustments to reconcile net income to net cash provided by operating activities:
Depreciation 26,235 22,467
Income taxes 10,129 9,999
Minority interest in earnings 1,867 218
Net holding (gain) loss on trading securities 40,388 (190,081)
Amortization of held-to-maturity securities (5,811) (3,626)
Gain on sale of Boeing 757 aircraft (11,794) ---
Other (2,894) 2,759
Changes in assets and liabilities:
Interest, premiums and other receivables (181,999) (122,976)
Rentals receivable (14,438) (17,063)
Deposits with insurers (44,655) 5,096
Deferred acquisition costs (31,493) (28,068)
Other assets (3,264) (18,745)
Accrued losses and loss expenses 89,139 36,317
Accounts payable and other accruals 26,061 (51,253)
Unearned premiums 145,995 128,211
Proceeds from sale of investments 832,125 855,077
Purchases of investments (1,214,034) (795,412)
----------- ---------
NET CASH FLOW PROVIDED (USED) BY OPERATING ACTIVITIES (119,311) 248,766
----------- ---------
CASH FLOW FROM INVESTING ACTIVITIES:
Proceeds on sale of Boeing 757 aircraft 202,220 ---
Acquisition of office building (196,337) ---
Additions to fixed assets (10,227) (10,605)
----------- ---------
NET CASH FLOW USED BY INVESTING ACTIVITIES (4,344) (10,605)
----------- ---------
CASH FLOW FROM FINANCING ACTIVITIES:
Proceeds from sale of Common Stock held for stock plans 64,390 15,876
Purchases of Common Stock (123,527) (89,626)
Borrowings 100,000 260,000
Repayment of debt (5,784) (213,492)
Dividends paid (131,252) (117,101)
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NET CASH FLOW USED BY FINANCING ACTIVITIES (96,173) (144,343)
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NET INCREASE (DECREASE) IN CASH AND CASH EQUIVALENTS (219,828) 93,818
CASH AND CASH EQUIVALENTS:
BEGINNING OF PERIOD 355,056 394,343
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END OF PERIOD $ 135,228 $ 488,161
=========== =========
AMOUNTS PAID FOR:
U.S. income taxes $ 4,189 $ 953
=========== =========
Interest $ 43,284 $ 27,513
=========== =========
</TABLE>
See notes to consolidated financial statements.
<PAGE>
OVERSEAS PARTNERS LTD. AND SUBSIDIARIES
---------------------------------------
NOTES TO UNAUDITED CONSOLIDATED FINANCIAL STATEMENTS
----------------------------------------------------
SEPTEMBER 30, 1998
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(UNAUDITED)
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1. GENERAL
-------
Overseas Partners Ltd. ("OPL") and its subsidiaries (collectively "Overseas") is
engaged in the property and casualty reinsurance business and in the real estate
and leasing business.
The accompanying unaudited interim consolidated financial statements have been
prepared pursuant to the rules and regulations for reporting on Form 10-Q.
Accordingly, certain information and footnotes required by generally accepted
accounting principles for complete financial statements are not included herein.
The interim financial statements should be read in conjunction with the Overseas
Partners Ltd. Annual Report on Form 10-K for the fiscal year ended December 31,
1997.
Interim financial statements are subject to possible adjustments in connection
with the annual audit of the Company's financial statements for the full year;
in the Company's opinion, all adjustments necessary for a fair presentation of
these interim statements have been included and are of a normal and recurring
nature.
The results of operations for the nine-month and three-month periods ended
September 30, 1998 and 1997 are not necessarily indicative of the results to be
expected for the full year.
2. SIGNIFICANT ACCOUNTING POLICIES
-------------------------------
The financial statements have been prepared in accordance with accounting
principles generally accepted in the United States of America. The accompanying
consolidated financial statements include the accounts of Overseas. Inter-
company balances and transactions have been eliminated in consolidation.
The operating leases are with subsidiaries of United Parcel Service of America
Inc. ("UPS").
Net income per share is based on 127,000,000 shares at September 30, 1998 and
131,000,000 shares at September 30, 1997.
Certain prior year amounts have been reclassified to conform to the current year
presentation.
3. TAXES
-----
OPL is incorporated under the laws of the Islands of Bermuda and does not
consider the Company 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 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.
The United States Internal Revenue Service (IRS) has issued a Notice of
Deficiency with respect to the Company's 1984 taxable year in which it asserted
that the Company is subject to U.S. federal income taxation in the amount of $53
million, plus penalties and interest for that year. On August 18, 1995, the
Company filed a petition in the United States Tax Court contesting the proposed
assessment of tax in the Notice of Deficiency. A trial was held before the
United States Tax Court in two sessions during the fall of 1997, the second of
which ended on November 7, 1997. An additional trial session previously
scheduled for the week of December 8, 1997 was cancelled by agreement of the
Company and the IRS. The Company filed its trial brief on February 13, 1998.
By letter dated February 13, 1998 the IRS informed the court that it was
conceding the case. On July 9, 1998, the IRS filed a Motion for Entry of
Decision for the year 1984. The IRS has also asserted that OPL is subject to
U.S. federal income taxation for its 1985 through 1987 taxable years and has
proposed an aggregate assessment of $240 million of tax, plus penalties and
interest, for those years. The Company has also 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 further asserted that OPL is subject to
U.S. federal income taxation for the years 1988 through 1990 and has proposed an
aggregate assessment of $170 million of tax, plus penalties and interest, for
those years. The Company has filed a Protest against the proposed assessment
with the Appellate Division of the IRS with respect to the years 1988 through
1990. The Company believes that the IRS's concession for the year 1984 should
include the period through December 11, 1988, and has so informed the Court.
The period within which the IRS must determine whether to assess additional tax
for the years 1985 through 1990 will expire on December 31, 1998. The IRS has
not proposed an assessment for years subsequent to 1990. However, the IRS may
take similar positions for subsequent years pending resolution of the years
currently in dispute. OPL believes that it has no tax liability, that it is not
subject to U.S. federal income taxation, and that there is substantial authority
for its position. It has vigorously contested the Notice of Deficiency for 1984
and will, if necessary, vigorously contest the proposed assessments for the
years 1985 through 1990 and any future assessments.
<PAGE>
OVERSEAS PARTNERS LTD. AND SUBSIDIARIES
---------------------------------------
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
------------------------------------------
SEPTEMBER 30, 1998
------------------
(UNAUDITED)
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4. COMMON STOCK
------------
OPL Common Stock is subject, on certain dispositions, to its right of first
refusal and to a right of OPL to purchase its shares in certain circumstances.
In 1998 and 1997, OPL purchased for cancellation, at opening book value per
share, 4 million shares of its Common Stock.
5. INVESTMENTS
-----------
Investments consist of: (000s omitted)
September 30, December 31,
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1998 1997
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Trading $1,919,468 $1,762,755
Held-to-maturity 249,700 59,082
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$2,169,168 $1,821,837
============= ============
6. BERMUDA INSURANCE REGULATION
----------------------------
The Bermuda Insurance Act of 1978, Amendments thereto and related Regulations
require OPL and its reinsurance subsidiary, each to maintain a minimum solvency
margin and a liquidity ratio. For the nine months ended September 30, 1998 and
1997, they each met these requirements.
7. GAIN ON SALE OF BOEING 757 AIRCRAFT
-----------------------------------
In July, 1998, the Company sold its five Boeing 757 aircraft to United Parcel
Service Co. pursuant to the terms of a purchase option granted to United Parcel
Service Co. in a May 31, 1990 Aircraft Lease Agreement between the parties.
Proceeds from the sale were approximately $202 million, yielding a gain on sale
before income taxes of approximately $11 million. Approximately $186 million of
the proceeds are held in restricted accounts in investments as substitute
collateral for the interest obligations associated with $171.6 million of Series
A Bonds due 2012, issued in connection with the original acquisition of the
aircraft.
8. ACQUISITION OF OFFICE BUILDING
------------------------------
In July 1998, the Company purchased 200 West Madison Plaza, a 45-story class A
office building located in Chicago's Central Business District. The purchase
price of $196.3 million was financed out of the Company's working capital and a
six-month bridge loan of $100 million. The bridge loan bears interest at 0.9%
over LIBOR and is expected to be refinanced with long-term debt prior to
December 31, 1998.
<PAGE>
OVERSEAS PARTNERS LTD. AND SUBSIDIARIES
---------------------------------------
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF
------------------------------------------------
FINANCIAL CONDITION AND RESULTS OF OPERATIONS
---------------------------------------------
(TRANSACTED IN U.S. DOLLARS)
----------------------------
OPERATIONS
- ----------
THREE MONTHS ENDED SEPTEMBER 30, 1998 AND 1997
- ----------------------------------------------
UNDERWRITING:
- -------------
Reinsurance premiums written increased to $255.5 million for the quarter ended
September 30, 1998 from $113.1 million in the same period of 1997. This
increase of $142.4 million is attributed to an increase of $14.7 million in
excess value and increases in other lines due to nine new programs with total
premiums written of $120.0 million being added in the quarter. The increase of
$14.7 million in excess value premiums over the same period last year is
attributed to the 15-day strike against UPS in August 1997.
Reinsurance premiums earned increased by $53.9 million to $198.1 million for the
quarter ended September 30, 1998, from $144.2 million in 1997. The overall
increase in premiums earned is primarily due to programs written in late 1997
and the first quarter in 1998 earning premium in this period. Premiums earned
increased by $20.6 million for marine, $14.7 million for excess value, $8.8
million for property, $8.2 million for aviation and $1.6 million for accident
and health, auto and other.
Net underwriting income increased by 18.2% to $66.9 million for the quarter
ended September 30, 1998 from $56.5 million in 1997. While the company's
premiums earned has increased by 37.3%, the overall combined ratio has also
increased from 60.8% to 67.0% as a result of the introduction and expansion of
its new lines of business.
REAL ESTATE AND LEASING:
- ------------------------
Operating leases with UPS have decreased from $10.1 million in 1997 to $7.0
million in 1998 due to the sale of five Boeing 757 aircraft to United Parcel
Service Co. in July 1998. Office building revenue increased by 24.3% to $35.6
million for the quarter ended September 30, 1998 from $28.6 million for the same
period of 1997. This increase of $7.0 million was primarily due to the purchase
of 200 West Madison Plaza, a 45-story class A office building located in
Chicago's Central Business District in July 1998. Hotel revenue increased $3.6
million due to higher room rates while occupancy rates for the three-month
period remained similar to 1997. Operating expenses for the quarter have
increased by $9.4 million due to the purchase of Madison Plaza and an increase
in operating costs at the hotel and Copley Place. Real estate and leasing
operating income for the third quarter 1998 increased by $10.8 million over the
same period in 1997.
INVESTMENTS:
- ------------
Investment income for the three months ended September 30, 1998 decreased by
$195.0 million over the same period in 1997. Unprecedented downturns in global
equity markets were the primary reason for this decrease. During the three
months, the S&P 500 index declined in excess of 10%, and the emerging markets
declined by 22%. In August, the emerging markets IFC Investible Index dropped
by 30%, nearly twice the decline of any previous month in the IFC's nine-year
history. In August, the S&P 500 dropped by 15%, one of its worst performing
months in its history.
The continuing effects of the economic crisis in both Asia and Russia led to a
loss of $46.1 million on our emerging markets portfolio for the quarter ended
September 30, 1998. Developed countries' equity markets reacted to these events
accordingly, causing our U.S. equities portfolio to suffer losses of $95.2
million for the quarter. Other investments, including Real Estate Investment
Trusts and an international fixed income bond portfolio were also impacted with
losses for the quarter of $21.0 million. The Company's global bond portfolio
benefited from investors' shift to government based fixed income securities by
generating $42.2 million in income for the quarter.
NET INCOME:
- -----------
Net income for the third quarter of 1998 decreased by $169.3 million over 1997
primarily due to the decline in investment income. The overall decline in
investment income was offset by growth in underwriting income and the gain on
sale of the 757s. Net income (loss) per share was $(0.31), a $1.30 per share
decrease over 1997 due to the aforementioned factors.
<PAGE>
OVERSEAS PARTNERS LTD. AND SUBSIDIARIES
---------------------------------------
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF
------------------------------------------------
FINANCIAL CONDITION AND RESULTS OF OPERATIONS
---------------------------------------------
(TRANSACTED IN U.S. DOLLARS)
----------------------------
OPERATIONS
- ----------
NINE MONTHS ENDED SEPTEMBER 30, 1998 AND 1997
- ---------------------------------------------
UNDERWRITING:
- -------------
Gross reinsurance premiums written increased to $684.7 million for the nine
month period ended September 30, 1998 from $572.6 million for the same period of
1997. A $7.4 million increase in excess value premiums over the same period last
year is primarily due to the 15-day strike against UPS in August 1997. However,
the strike continues to have an impact on premium volume for the excess value
program. Premiums written increased by a total of $208.2 million from the
Company's accident and health, aviation, marine, property, workers compensation
and automobile programs, whilst automobile warranty premiums decreased by $103.5
million due to the cancellation of the program in 1997. Premiums from new
programs written since September 30, 1997 total $261.0 million. Premiums on
renewed programs decreased by $31.4 million while programs in run-off
contributed $21.4 million less premium than in 1997.
Reinsurance premiums earned increased by $94.3 million to $538.7 million for the
nine-month period ended September 30, 1998, from $444.4 million in 1997. Of
this increase $126.3 million is attributed to forty-one new programs written
since September 30, 1997 offset by a $3.0 million decrease in earned premium on
renewals and a $36.4 million decrease on programs in run-off. An increase of
$7.4 million in excess value premiums also contributed to the increase in
premiums earned for the period.
Net underwriting income increased by 8.3% to $187.2 million for the nine-month
period ended September 30, 1998 from $172.8 million in 1997. While the
Company's premiums earned increased by 21.2%, the overall combined ratio has
also increased from 61.1% to 66.1% as a result of the introduction and expansion
of its new lines of business.
REAL ESTATE AND LEASING:
- ------------------------
Operating leases with UPS have decreased from $30.4 million in 1997 to $27.3
million in 1998 due to the sale of five Boeing 757 aircraft to United Parcel
Service Co. in July 1998. Office building revenue increased by 16.8% to $94.1
million for the nine-months ended September 30, 1998 from $80.6 million for the
same period of 1997. This increase of $13.5 million was primarily due to the
purchase of 200 West Madison Plaza, a 45-story class A office building located
in Chicago's Central Business District in July 1998. Improvements over 1997
occupancy rates at Copley Place also contributed to the increase in office
building revenue. Hotel revenue increased $6.9 million due to an increase in
room rates and occupancy rates over 1997. Operating expenses for the quarter
have increased by $11.1 million due to the purchase of Madison Plaza and an
increase in operating costs at the hotel and Copley Place. Real estate and
leasing operating income for the nine-months ended September 30, 1998 increased
by $14.8 million over the same period in 1997, primarily as a result of a gain
on the sale of the 757s. Improved profitability on the hotel and Copley Place
have also contributed to real estate and leasing operating income.
INVESTMENTS:
- ------------
Investment income for the nine-month period ended September 30, 1998 decreased
by $226.7 million to $11.8 million for the nine-month period ended September 30,
1998 from $148.7 million for the same period in 1997. Unprecedented downturns in
global equity markets led to decreased investment income of $130.0 million from
the U.S. equity portfolio compared to the corresponding period in the prior
year. Similarly, investment income on the emerging markets portfolio fell by
$101.7 million. Other investments including Real Estate Investment Trusts and
an international fixed income bond portfolio followed suit with a decrease in
income of $28.9 million. Global bonds, however, generated $35.9 million more
income than the same period in 1997 as investors shifted to government based
fixed income securities such as those held by the Company. The subsequent
equity market turnaround in October 1998 has allowed us to quickly recover a
portion of the losses experienced in the third quarter of 1998, with investment
income for the month of approximately $75.0 million. However, there is no
assurance that these gains will be sustained or increase in the fourth quarter.
NET INCOME:
- -----------
Net income for the nine-month period ended September 30, 1998 decreased by
$196.7 million over 1997 primarily due to the performance of investment
portfolio. Underwriting income continues to show modest growth, as does the
operating income from real estate and leasing. Net income per share was $1.73,
a $1.44 per share decrease over 1997.
<PAGE>
OVERSEAS PARTNERS LTD. AND SUBSIDIARIES
---------------------------------------
MANAGEMENT'S DISCUSSION AND ANALYSIS OF
---------------------------------------
FINANCIAL CONDITION AND RESULTS OF OPERATIONS
---------------------------------------------
(TRANSACTED IN U.S. DOLLARS)
----------------------------
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 from 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' fixed income portfolio comprises highly liquid debt
securities of governments, government agencies, financial institutions and
utilities. Overseas' U.S. and emerging markets equity portfolios are comprised
of stocks drawn mainly from within the S&P 500 Index and the IFC Investible
Index. 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.
Overseas believes that its borrowing capabilities and cash flows from
reinsurance, investments and real estate and leasing 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 capability will
continue to be adequate to meet any obligations likely to arise under its
existing lines of business. Overseas also believes that its resources are
sufficient to allow it to underwrite additional reinsurance business as well as
to acquire additional capital assets in the future.
IMPACT OF THE YEAR 2000 ISSUE
- -----------------------------
The Year 2000 issue is the result of the inability of computers, software and
other equipment utilizing microprocessors to recognize and properly process data
fields using two digits rather than four to define the applicable year. Time-
sensitive systems and software may recognize a date using "00" as the year 1900
rather than the year 2000.
Overseas formed a Year 2000 Committee in May 1998 to evaluate the potential
effects of this issue and to ensure that the Company is Year 2000 ready. The
Committee is led by a senior member of management and comprises representatives
from each of the Company's locations and functional areas. The Committee has
developed a formal, written plan, which outlines the required action steps that
must be completed prior to the Company's targeted project completion date of
June 30, 1999. The Committee makes periodic reports of progress against the
plan to the Chief Executive Officer and the Board of Directors.
The Company has completed inventories of its information technology assets such
as computers and software and assessed each item for Year 2000 compliance (that
is, the ability of software, systems and equipment to properly handle date data
within and between the twentieth and twenty-first centuries). The Company does
not believe that it has significant exposure to non-compliant information
technology systems or assets. The Company has minimal exposure to legacy systems
and most hardware and software has either been purchased or upgraded within the
last year. A small number of non-critical systems and assets will be replaced,
repaired or retired as part of the Year 2000 initiative.
The Company's real estate properties and office premises include systems that
rely on date sensitive computer programs or embedded chip microprocessors.
These systems include controlled access to the premises, elevators and
escalators, fire detection and safety systems and telecommunication systems. The
Company's worst case scenario is widespread disruption in building operations
should programmed systems not correctly recognize the Year 2000. In addition to
the potential for lost productivity, any failure of such systems could result in
additional claims against the Company from its tenants and other third parties.
The Company has identified and contacted all key equipment manufacturers and
service providers to assess whether such systems and equipment are Year 2000
compliant. Some assurances have been received from these manufacturers and
service providers. The Company expects to finalize in the fourth quarter of
1998, the identification of those items that require repair, remediation or
replacement.
The Company has significant business relationships with investment managers,
banks, custodians, reinsurance companies, reinsurance intermediaries and utility
companies that provide services and financial reports that are critical to the
Company operations. Enquiries have been made, and in some cases assurances
received, of the Company's significant business partners to determine their
state of readiness for the Year 2000. The Company has not yet received a
significant number of responses from its business partners. The Company will
continue to follow up and ensure that responses are received by December 31,
1998. The Company intends to have additional communication with its key
business partners in the 1st quarter of 1999. There is no assurance that such
business partners will not suffer a year 2000 business disruption. Such
failures could have a material adverse affect on the Company's financial
condition and results of operations.
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OVERSEAS PARTNERS LTD. AND SUBSIDIARIES
---------------------------------------
MANAGEMENT'S DISCUSSION AND ANALYSIS OF
---------------------------------------
FINANCIAL CONDITION AND RESULTS OF OPERATIONS
---------------------------------------------
(TRANSACTED IN U.S. DOLLARS)
----------------------------
IMPACT OF THE YEAR 2000 ISSUE (CONTINUED)
- -----------------------------
The Company's investment portfolio also has exposure to the impact of Year 2000
failures. Overseas' fixed income portfolio comprises highly liquid debt
securities of governments, government agencies, financial institutions and
utilities. Overseas' U.S. and emerging markets equity portfolios are comprised
of stocks drawn mainly from within the S&P 500 Index and the IFC Investible
Index. A global economic crisis could have a material impact on the Company's
earnings, however, the likelihood or magnitude of such an event cannot be
determined at this point.
Reinsurance contracts that commence in 1999 may expose the Company to increases
in the frequency and severity of claims as a direct result of Year 2000 failures
relating to the insureds. Unfavorable outcomes to these claims, particularly
for property, aviation and marine exposures, could have a material impact on the
Company's financial condition and operations. It is not possible at this time
to determine how the Year 2000 issue will impact future claim experience. The
Company will continue to exercise underwriting discretion and explore
opportunities that may help to reduce this exposure, including the use of policy
exclusions.
The Company has begun to develop contingency plans and believes that the
assessment and remediation phases of its project will be completed by December
31, 1998. The Company also expects to complete the preparation of contingency
plans for each of its mission critical systems and functions by that date.
Notwithstanding the inherent difficulties of testing embedded chip
microprocessors, the Company has not commenced significant testing activity but
expects testing of mission critical systems to be completed by June 1999.
The Company retained an independent legal firm to assess whether the Company's
Year 2000 plan, if appropriately administered, can result in year 2000
readiness. The legal firm continues to monitor the Company's progress with
respect to the plan. The legal firm will provide recommendations for
appropriately adjusting the plan if it determines that the plan will not
adequately lead to Year 2000 readiness.
Any costs incurred by the Company's business partners in connection with their
Year 2000 efforts will be borne by those business partners. Any costs incurred
in preparing Overseas' internal systems and equipment for Year 2000 Compliance
are not expected to be material. The costs are not expected to exceed $100,000
by the end of the year.
SAFE HARBOR DISCLOSURE
- ----------------------
The Private Securities Litigation Reform Act of 1995 provides a "safe harbor"
for forward-looking statements. The Management's Discussion and Analysis of
Financial Condition and Results of Operations within this 10-Q document contain
forward-looking statements made by management that reflect the views and beliefs
of the Company with respect to future events and financial performance. These
forward-looking statements are subject to uncertainties and factors, which could
cause actual results to differ materially from such statements made.
Such forward-looking statements involve risks and uncertainties that may affect
future developments such as, for example, the ability to deal with the year 2000
issue, including problems that may arise on the part of third parties. If the
remediation plans required to make OPL year 2000 Compliant are not made or
completed on a timely basis, the resulting problems could have a material impact
on the operations of the Company. This impact could, in turn have a material
adverse effect on the Company's results of operations and financial condition.
<PAGE>
OVERSEAS PARTNERS LTD. AND SUBSIDIARIES
---------------------------------------
PART II, OTHER INFORMATION
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ITEM 6 EXHIBITS AND REPORTS ON FORM 8-K
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a) Exhibits:
(3) Articles of Incorporation and Bye-Laws.
3(a) Certificate of Incorporation Incorporated by Reference to Exhibit 3(a) to Registration
Statement (on Form S-1), No. 2-95460.
3(b) Bye-Laws as amended Incorporated by Reference to Exhibit 3(c) of OPL's Annual
Report on Form 10-K for the Year Ended December 31, 1990.
(4) Instruments defining the rights of security holders, including
indentures.
4(a) Copy of specimen stock certificate Incorporated by Reference to Exhibit 4(a) Registration
Statement (on Form S-1), No. 2-95460.
4(b) Agreement accepting restrictions on Incorporated by Reference to Exhibit 4(b) to Registration Statement
on transfer and rights to purchase (on Form S-1), No. 2-95460.
executed by recipients of shares
transfer and rights to purchase
executed by recipients of shares
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.
(10) Material Contracts.
10(a) Facultative Reinsurance Agreement Incorporated by Reference to (on Form S-1) No. 2-95460.
between OPL and Liberty Mutual Fire
Insurance Company and Amendments.
10(b) Facultative Reinsurance Agreement with New Incorporated by Reference to Exhibit 10(g) of OPL's Registration Statement
Hampshire Insurance Company of Manchester, (on Form S-2) No. 33-19672.
New Hampshire.
10(c) Facultative Reinsurance Agreement among OPL Incorporated by Reference to Exhibit 10(a) to OPL's Post-Effective
and National Union Fire Insurance Company Amendment No. 1 to Registration Statement (on Form S-2) No. 33-30944.
of Pittsburgh, PA and New Hampshire
Insurance Company.
10(d) Facultative Reinsurance Agreement Federal Incorporated by Reference to Exhibit 10(d) of OPL's Registration Statement
Insurance Company. (on Form S-2) No. 33-43869.
10(e) Management Services Agreement between OPL Incorporated by Reference to Exhibit 10(c) of Registration Statement (on
and Rollins Hudig Hall (Bermuda) Ltd. Form S-1) No. 2-95460.
(successor to Parker & Co. Interocean Ltd.)
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10(f) Investment Management Agreement with Incorporated by Reference to Exhibit 10(d) of Registration Statement (on
Citibank N.A. Form S-1) No. 2-95460.
10(g) Investment Management Agreement with County Incorporated by Reference to Exhibit 10(e) of Amendment No. 1 to
Bank Limited. Registration Statement (on Form S-1) No. 2-95460.
10(h) Investment Management Agreement with Morgan Incorporated by Reference to Exhibit 10(f) of Registration Statement (on
Grenfell & Co. Limited. Form S-2) No. 33-11379.
10(i) Aircraft Lease Agreement between OPCC, Inc. Incorporated by Reference to Exhibit 10(f) of OPL's Post-Effective
("OPCC") and United Parcel Service Co. Amendment No. 1 to Registration Statement (on Form S-2) No. 33-30944.
("UPS Co.") dated May 31, 1990.
10(j) Aircraft Lease Agreement between OPCC and Incorporated by Reference to Exhibit 10(g) of OPL's Post-Effective
UPS Co. dated May 31, 1990. Amendment No. 1 to Registration Statement (on Form S-2) No. 33-30944.
10(k) Aircraft Lease Agreement between OPCC and Incorporated by Reference to Exhibit 10(h) of OPL's Post-Effective
UPS Co. dated May 31, 1990. Amendment No. 1 to Registration Statement (on Form S-2) No. 33-30944.
10(l) Aircraft Lease Agreement between OPCC and Incorporated by Reference to Exhibit 10(i) of OPL's Post-Effective
UPS Co. dated August 31, 1990. Amendment No. 1 to Registration Statement (on Form S-2) No. 33-30944.
10(m) Amended and Restated Aircraft Lease Incorporated by Reference to Exhibit 10(l) of OPL's Post-Effective
Agreement among OPCC, UPS Co. and United Amendment No. 1 to Registration Statement (on Form S-2) No. 33-30944.
Parcel Service of America, Inc. ("UPS")
dated November 6, 1990.
10(n) Purchase Agreement Assignment between OPCC, Incorporated by Reference to Exhibit 10(m) of OPL's Form 10-K Annual
UPS Co. and UPS dated December 28, 1989. Report for the Year ended December 31, 1989.
10(o) Engine Support Contract Agreement between Incorporated by Reference to Exhibit 10(n) of OPL's Annual report on Form
UPS Co. and OPCC dated December 28, 1989. 10-K for the year ended December 31, 1989.
10(p) Guaranty Agreement from OPL in favor of UPS Incorporated by Reference to Exhibit 10(m) of OPL's Post-Effective
Co. dated November 6, 1990. Amendment No. 1 to Registration Statement (on Form S-2) No. 33-30944.
10(q) Instrument of Conveyance of Basic Tolls Incorporated by Reference to Exhibit 10(n) of OPL's Post-Effective
(Series A) among OPCC, UPS, UPS Co., Amendment No. 1 to Registration Statement (on Form S-2) No. 33-30944.
Continental Bank, N.A., as Trustee
("Continental Bank") and OPL Funding Corp.
("OPL Funding") dated November 6, 1990.
10(r) Series A Loan Agreement and Note between Incorporated by Reference to Exhibit 10(o) of OPL's Post-Effective
OPL Funding and OPCC dated November 6, 1990. Amendment No. 1 to Registration Statement (on Form S-2) No. 33-30944.
10(s) Security Agreement between OPL Funding and Incorporated by Reference to Exhibit 10(p) of OPL's Post Effective
OPCC dated November 6, 1990. Amendment No. 1 to Registration Statement (on Form S-2) No. 33-30944.
10(t) Amended and Restated Facility Lease Incorporated by Reference to Exhibit 10(s) of OPL's Post-Effective
Agreement among OPCC, United Parcel Service Amendment No. 1 to Registration Statement (on Form S-2) No. 33-30944.
General Services Co., ("GSC") and UPS dated
November 6, 1990.
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10(u) Agreement of Sale between Edison Corp. and Incorporated by Reference to Exhibit 10(p) of OPL's Annual Report on Form
OPCC dated December 28, 1989. 10-K for the year ended December 31, 1989.
10(v) Assignment and Assumption Agreement among Incorporated by Reference to Exhibit 10(q) of OPL's Annual Report on Form
Edison Corp., OPCC, McBride Enterprises, 10-K for the year ended December 31, 1989.
Inc. and Ramapo Ridge-McBride Office Park
dated December 28, 1989.
10(w) Guaranty Agreement from OPL in favor of Incorporated by Reference to Exhibit 10(t) of OPL's Post-Effective
GSC dated November 6, 1990. Amendment No. 1 to Registration Statement (on Form S-2) No. 33-30944.
10(x) Instrument of Conveyance of Basic Tolls Incorporated by Reference to Exhibit 10(u) of OPL's Post-Effective
(Series B) among OPCC, UPS, UPS Co., Amendment No. 1 to Registration Statement (on Form S-2) No. 33-30944.
Continental Bank and OPL Funding dated
November 6, 1990.
10(y) Series B Loan Agreement and Note between Incorporated by Reference to Exhibit 10(v) of OPL's Post-Effective
OPL Funding and OPCC dated November 6, Amendment No. 1 to Registration Statement (on Form S-2) No. 33-30944.
1990.
10(z) Mortgage and Security Agreement between Incorporated by Reference to Exhibit 10(w) of OPL's Post-Effective
OPL Funding and OPCC dated November 6, Amendment No. 1 to Registration Statement (on Form S-2) No. 33-30944.
1990.
10(aa) Amended and Restated Trust Indenture and Incorporated by Reference to Exhibit 10(x) of OPL's Post-Effective
Security Agreement among OPL Funding, Amendment No. 1 to Registration Statement (on Form S-2) No. 33-30944.
Overseas Partners Credit, Inc. ("OPL
Credit") and Continental Bank N.A. as
trustee, dated November 6, 1990.
10(bb) Bond Purchase Agreement among OPL Funding, Incorporated by Reference to Exhibit 10(y) of OPL's Post-Effective
UPS, OPL and Salomon Brothers Inc. dated Amendment No. 1 to Registration Statement (on Form S-2) No. 33-30944.
November 6, 1990.
10(cc) Letter Agreement from OPL Funding, UPS and Incorporated by Reference to Exhibit 10(z) of OPL's Post-Effective
OPL to each Purchaser of the Bonds dated Amendment No. 1 to Registration Statement (on Form S-2) No. 33-30944.
November 9, 1990.
10(dd) Indemnification Agreement among OPL, OPL Incorporated by Reference to Exhibit 10(aa) of OPL's Post-Effective
Funding, OPCC and Continental Bank N.A., Amendment No. 1 to Registration Statement (on Form S-2) No. 33-30944.
as Trustee, dated November 6, 1990.
10(ee) Investment Management Agreement with Incorporated by Reference to Exhibit 10(ee) of OPL's Annual Report on Form
Rothschild Asset Management Limited 10-K for the Year Ended December 31, 1992.
10(ff) Insurance Underwriting Adviser Agreement Incorporated by Reference to Exhibit 10(ff) of OPL's Annual Report on Form
between OPL and Lincoln National 10-K for the Year Ended December 31, 1992.
Intermediaries, Inc. dated September 3,
1993.
10(gg) Agreement dated as of December 22, 1993, Incorporated by Reference to Exhibit 99.1 of OPL's Current Report on Form
among Host Marriott Corporation, Urban 8-K dated January 12, 1994.
Investment and Development Co. and OPCC.
10(hh) Agreement dated as of December 31, 1993, Incorporated by Reference to Exhibit 99.2 of OPL's Current Report on Form
between Mascester Company and OPCC. 8-K dated January 12, 1994.
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10(ii) Amendment dated December 31, 1993 to Incorporated by Reference to Exhibit 10 (ll) of OPL's Annual Report on
Aircraft Lease Agreement between OPCC and Form 10-K for the Year Ended December 31, 1993.
UPS Co. dated May 31, 1990.
10(jj) Term Loan Agreement dated as of December Incorporated by Reference to Exhibit 10 (ll) of OPL's Annual Report on
30, 1994 between Bank of America Illinois Form 10-K for the Year Ended December 31, 1994.
and Marriott Urban Boston Venture ("MUBV").
10(kk) Guaranty dated as of December 30, 1994 of Incorporated by Reference to Exhibit 10 (ll) of OPL's Annual Report on
OPCC. Form 10-K for the Year Ended December 31, 1994
10(ll) Guaranty dated as of December 30, 1994 of Incorporated by Reference to Exhibit 10 (ll) of OPL's Annual Report on
OPL. Form 10-K for the Year Ended December 31, 1994
10(mm) Investment Management Agreement with Incorporated by Reference to Exhibit 10 (ll) of OPL's Annual Report on
INVESCO Asset Management Limited. Form 10-K for the Year Ended December 31, 1994
10(nn) Investment Management Agreement with Incorporated by Reference to Exhibit 10 (ll) of OPL's Annual Report on
Barings International Investment Form 10-K for the Year Ended December 31, 1994
Management Limited.
10(oo) OPCC 1995 Stock Appreciation Rights Plan. Incorporated by Reference to Exhibit 10 (ll) of OPL's Annual Report on
Form 10-K for the Year Ended December 31, 1994
10(pp) Purchase and Sale Agreement between OPCC Incorporated by Reference to Exhibit 10 (pp) of OPL's Annual Report on
and The Mutual Life Insurance Company of Form 10-K for the Year Ended December 31, 1996
New York dated August 9, 1996.
10(qq) Bill of Sale and Assignment by and between Incorporated by Reference to Exhibit 10 (qq) of OPL's Annual Report on
The Mutual Life Insurance Company of New Form 10-K for the Year Ended December 31, 1996
York and Overseas Partners (AFC), Inc.
dated August 30, 1996.
10(rr) Assignment and Assumption of Leases by and Incorporated by Reference to Exhibit 10 (rr) of OPL's Annual Report on
between The Mutual Life Insurance Company Form 10-K for the Year Ended December 31, 1996
of New York and Overseas Partners (AFC),
Inc. dated August 30, 1996.
10(ss) Assignment and Assumption of Contracts by Incorporated by Reference to Exhibit 10 (ss) of OPL's Annual Report on
and between The Mutual Life Insurance Form 10-K for the Year Ended December 31, 1996
Company of New York and Overseas Partners
(AFC), Inc. dated August 30, 1996.
10(tt) Promissory Note from Overseas Partners Incorporated by Reference to Exhibit 10 (tt) of OPL's Annual Report on
(AFC), Inc. to The Mutual Life Insurance Form 10-K for the Year Ended December 31, 1996
Company of New York dated October 23, 1996.
10(uu) Deed to Secure Debt, Assignment of Leases Incorporated by Reference to Exhibit 10 (uu) of OPL's Annual Report on
and Rents and Security Agreement from Form 10-K for the Year Ended December 31, 1996
Overseas Partners (AFC), Inc. to The
Mutual Life Insurance Company of New York
dated October 23, 1996.
10(vv) Reserve Account Agreement from Overseas Incorporated by Reference to Exhibit 10 (vv) of OPL's Annual Report on
Partners (AFC), Inc. and The Mutual Life Form 10-K for the Year Ended December 31, 1996
Insurance Company of New York dated
October 23, 1996.
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10(ww) Side Letter Agreement Waiving Tax and Incorporated by Reference to Exhibit 10 (ww) of OPL's Annual Report on
Insurance Deposits from The Mutual Life Form 10-K for the Year Ended December 31, 1996
Insurance Company of New York to Overseas
Partners (AFC), Inc. dated October 23,
1996.
10(xx) Side Letter Agreement Regarding Audit Incorporated by Reference to Exhibit 10 (xx) of OPL's Annual Report on
Certification from The Mutual Life Form 10-K for the Year Ended December 31, 1996
Insurance Company of New York to Overseas
Partners (AFC), Inc. dated October 23,
1996.
10(yy) One Time Transfer Letter from The Mutual Incorporated by Reference to Exhibit 10 (yy) of OPL's Annual Report on
Life Insurance Company of New York to Form 10-K for the Year Ended December 31, 1996
Overseas Partners (AFC), Inc. dated
October 23, 1996.
10(zz) Guarantee of Payment Related to Leasing Incorporated by Reference to Exhibit 10 (zz) of OPL's Annual Report on
between The Mutual Life Insurance Company Form 10-K for the Year Ended December 31, 1996
of New York to Overseas Partners (AFC),
Inc. dated October 23, 1996.
10(aaa) Purchase and Sale Agreement between OPCC Incorporated by Reference to Exhibit 10 (aaa) of OPL's Annual Report on
and 333 Wacker Drive Limited Partnership Form 10-K for the Year Ended December 31, 1996
dated December 24, 1996.
10(bbb) Assignment and Assumption of Leases Incorporated by Reference to Exhibit 10 (bbb) of OPL's Annual Report on
between Overseas Partners (333), Inc. and Form 10-K for the Year Ended December 31, 1996
333 Wacker Drive Limited Partnership dated
December 31, 1996.
10(ccc) Assignment and Assumption of Contracts Incorporated by Reference to Exhibit 10 (ccc) of OPL's Annual Report on
between Overseas Partners (333), Inc. and Form 10-K for the Year Ended December 31, 1996
333 Wacker Drive Limited Partnership dated
December 31, 1996.
10(ddd) Bill of Sale and Assignment by 333 Wacker Incorporated by Reference to Exhibit 10 (ddd) of OPL's Annual Report on
Drive Limited Partnership for benefit of Form 10-K for the Year Ended December 31, 1996
Overseas Partners (333), Inc. dated
December 31, 1996.
10(eee) Purchase and Sale Agreement by and among Incorporated by Reference to Exhibit 10 (eee) of OPL's Annual Report on
JMB Realty Corporation, Carlyle Real Form 10-K for the Year Ended December 31, 1996
Estate Limited Partnership - XIII, Urban
Investment and Development Co. and OPCC
dated December 31, 1996.
10(fff) First Amendment to Purchase and Sale Incorporated by Reference to Exhibit 10 (fff) of OPL's Annual Report on
Agreement by and among JMB Realty Form 10-K for the Year Ended December 31, 1996
Corporation, Carlyle Real Estate Limited
Partnership - XIII, Urban Investment and
Development Co. and OPCC dated January 23,
1997.
10(ggg) Assignment and Assumption of Membership Incorporated by Reference to Exhibit 10 (ggg) of OPL's Annual Report on
Interest by JMB Realty Corporation to OPCC Form 10-K for the Year Ended December 31, 1996
dated January 23, 1997.
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10(hhh) Assignment and Assumption of Membership Incorporated by Reference to Exhibit 10 (hhh) of OPL's Annual Report on
Interest by Urban Investment and Form 10-K for the Year Ended December 31, 1996
Development Co. to OPCC dated January 23,
1997.
10(iii) Assignment and Assumption of Membership Incorporated by Reference to Exhibit 10 (iii) of OPL's Annual Report on
Interest by Carlyle Real Estate Limited Form 10-K for the Year Ended December 31, 1996
Partnership - XIII to OPCC dated January
23, 1997.
10(jjj) Confirmatory Assumption and Reaffirmation Incorporated by Reference to Exhibit 10 (jjj) of OPL's Annual Report on
Agreement by and among Copley Place Form 10-K for the Year Ended December 31, 1996
Associates, LLC, Copley Place Associates
Nominee Corporation, Copley Funding
Corporation, Copley Financing Corporation
and The Aetna Casualty and Surety Company
dated January 23, 1997.
10(kkk) Certificate of Borrower dated January 23, Incorporated by Reference to Exhibit 10 (kkk) of OPL's Annual Report on
1997. Form 10-K for the Year Ended December 31, 1996
10(lll) Central Area Bill of Sale, Assignment and Incorporated by Reference to Exhibit 10 (lll) of OPL's Annual Report on
Assumption Agreement by JMB Realty Form 10-K for the Year Ended December 31, 1996
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 Liability Incorporated by Reference to Exhibit 10 (mmm) of OPL's Annual Report on
Company Agreement of Copley Place Form 10-K for the Year Ended December 31, 1996
Associates, LLC dated January 23, 1997.
10(nnn) Agreement of Merger between Copley Place Incorporated by Reference to Exhibit 10 (nnn) of OPL's Annual Report on
Associates and Copley Place Associates, Form 10-K for the Year Ended December 31, 1996
LLC dated January 23, 1997.
10(ooo) Management Agreement by and between Copley Incorporated by Reference to Exhibit 10 (ooo) of OPL's Annual Report on
Place Associates, LLC and Overseas Form 10-K for the Year Ended December 31, 1996
Management, Inc. dated January 23, 1997.
10(ppp) Management and Leasing Fee Subordination Incorporated by Reference to Exhibit 10 (ppp) of OPL's Annual Report on
Agreement by and among Copley Place Form 10-K for the Year Ended December 31, 1996
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 Consulting and Incorporated by Reference to Exhibit 10 (qqq) of OPL's Annual Report on
Other Services by and between Overseas Form 10-K for the Year Ended December 31, 1996
Management, Inc. and Urban Retail Property
Co. dated January 23, 1997.
10(rrr) Consulting Subordination Agreement by and Incorporated by Reference to Exhibit 10 (rrr) of OPL's Annual Report on
among Copley Place Associates, LLC, Copley Form 10-K for the Year Ended December 31, 1996
Funding Corporation, Copley Financing
Corporation, The Aetna Casualty and Surety
Company and Urban Retail Properties Co.
dated January 23, 1997.
10(sss) Class A Promissory Note from Copley Place Incorporated by Reference to Exhibit 10 (sss) of OPL's Annual Report on
Associates, LLC and Urban Investment and Form 10-K for the Year Ended December 31, 1997
Development Co. to the Metropolitan Life
Insurance Company dated July 30, 1997.
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10(ttt) Class B Promissory Note from Copley Place Incorporated by Reference to Exhibit 10 (ttt) of OPL's Annual Report on
Associates, LLC and Urban Investment and Form 10-K for the Year Ended December 31, 1997
Development Co. to the Metropolitan Life
Insurance Company dated July 30, 1997.
10(uuu) Leasehold Mortgage, Security Agreement and Incorporated by Reference to Exhibit 10 (uuu) of OPL's Annual Report on
Fixture Financing Statement by Copley Form 10-K for the Year Ended December 31, 1997
Place Associates, LLC and Urban Investment
and Development Co. to Metropolitan Life
Insurance Company dated July 30, 1997.
10(vvv) Assignment of Lessor's Interest in Leases Incorporated by Reference to Exhibit 10 (vvv) of OPL's Annual Report on
by Copley Place Associates, LLC to Form 10-K for the Year Ended December 31, 1997
Metropolitan Life Insurance Company dated
July 30, 1997.
10(www) Collateral Assignment and Security Incorporated by Reference to Exhibit 10 (www) of OPL's Annual Report on
Agreement in regard to Contracts, Form 10-K for the Year Ended December 31, 1997
Licenses, Permits, Agreements, Warranties
and Approvals, to Metropolitan Life
Insurance Company dated July 30, 1997.
10(xxx) Guaranty Agreement made by Overseas Incorporated by Reference to Exhibit 10 (xxx) of OPL's Annual Report on
Partners Capital Corp. and JMB Realty Form 10-K for the Year Ended December 31, 1997
Corporation in favor of Metropolitan Life
Insurance Company dated July 30, 1997.
10(yyy) Second Amended and Restated Limited Incorporated by Reference to Exhibit 10 (yyy) of OPL's Annual Report on
Liability Company Agreement of Copley Form 10-K for the Year Ended December 31, 1997
Place Associates, LLC by Overseas Partners
Capital Corp., JMB Realty Corporation and
Copley Place Corp., Inc. dated July 30,
1997.
10(zzz) Notice of Direct Lease by Copley Place Incorporated by Reference to Exhibit 10 (zzz) of OPL's Annual Report on
Associates, LLC to Urban Investment and Form 10-K for the Year Ended December 31, 1997
Development Co. and Massachusetts Turnpike
Authority dated July 30, 1997.
10(aaaa) Confirmation of Direct Lease and Leasehold Incorporated by Reference to Exhibit 10 (aaaa) of OPL's Annual Report on
Mortgage by Copley Place Associates, LLC, Form 10-K for the Year Ended December 31, 1997
Urban Investment and Development Co. and
Metropolitan Life Insurance Company dated
July 30, 1997.
10(bbbb) Second Amendment to Amended and Restated Incorporated by Reference to Exhibit 10 (bbbb) of OPL's Annual Report on
Facility Lease Agreement among Overseas Form 10-K for the Year Ended December 31, 1997
Partners Leasing, Inc., United Parcel
Services General Services Co. and United
Parcel Service of America, Inc. Affecting
340 MacArthur Boulevard.
10(cccc) Mortgage, Security Agreement and Fixture Incorporated by Reference to Exhibit 10 (cccc) of OPL's Annual Report on
Filing by Overseas Partners (333), Inc. Form 10-K for the Year Ended December 31, 1997
and The Prudential Insurance Company of
America, Inc. dated August 27, 1997.
10(dddd) Promissory Note from Overseas Partners Incorporated by Reference to Exhibit 10 (dddd) of OPL's Annual Report on
(333), Inc. to The Prudential Insurance Form 10-K for the Year Ended December 31, 1997
Company of America, Inc. dated August 28,
1997.
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10(eeee) Dartmouth Street Garage Assignment and Incorporated by Reference to Exhibit 10 (dddd) of OPL's Annual Report on
Assumption of Ground Lease by and between Form 10-K for the Year Ended December 31, 1997
Urban Investment and Development Co. and
Copley Place Associates, LLC dated January
23, 1997.
10(ffff) Assignment of Agreements by Overseas Incorporated by Reference to Exhibit 10 (ffff) of OPL's Annual Report on
Partners (333), Inc. to The Prudential Form 10-K for the Year Ended December 31, 1997
Insurance Company of America, Inc. dated
August 28, 1997.
10(gggg) Assignment of Leases and Rents by and from Incorporated by Reference to Exhibit 10 (gggg) of OPL's Annual Report on
Overseas Partners (333), Inc. to The Form 10-K for the Year Ended December 31, 1997
Prudential Insurance Company of America,
Inc. dated August 27, 1997.
10(hhhh) The Overseas Partners Ltd. and Incorporated by Reference to Exhibit 10 (hhhh) of OPL's Annual Report on
Subsidiaries Retirement Plan As Amended Form 10-K for the Year Ended December 31, 1997
and Restated Generally Effective January
1, 1997
10(iiii) Agreement of General Partnership of OPL Incorporated by Reference to Exhibit 10 (iiii) of OPL's Annual Report on
Group Investment Partnership dated as of Form 10-K for the Year Ended December 31, 1997
December 1, 1997.
10(jjjj) Purchase and Sale Agreement by and between Filed herewith.
Madison Plaza Venture and OPCC dated June
30, 1998
10(kkkk) Assignment and Assumption of Contract Filed herewith
Rights by and between OPCC and Overseas
Partners (Madison Plaza) LLC
10(llll) Deed and Money Escrow Trust Agreement from Filed herewith
Overseas Partners (Madison Plaza) LLC
10(mmmm) Bill of Sale and Assignment by and between Filed herewith
Madison Plaza Venture and Overseas
Partners (Madison Plaza) LLC
10(nnnn) Assignment and Assumption of Leases by and Filed herewith
between Madison Plaza Venture and Overseas
Partners (Madison Plaza) LLC
10(oooo) Assignment and Assumption of Contracts by Filed herewith
and between Madison Plaza Venture and
Overseas Partners (Madison Plaza) LLC
10(pppp) Certificate of Seller by Madison Plaza Filed herewith
Venture in favor of Overseas Partners
(Madison Plaza) LLC
10(qqqq) Purchaser's Certificate Regarding Filed herewith
Representations and Warranties made by
Overseas Partners (Madison Plaza) LLC to
and for the benefit of Madison Plaza
Venture
10(rrrr) Term Loan Promissory Note by Overseas Filed herewith
Partners (Madison Plaza) LLC and Bank of
America National Trust and Savings
Association
10(ssss) Guaranty made by Overseas Partners Ltd. Filed herewith
and OPCC in favor of Bank of America
National Trust and Savings Association
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
<S> <C> <C>
10(tttt) Aircraft Purchase Agreement dated as of Filed herewith
July 6, 1998 between OPCC and United
Parcel Service Co.
10(uuuu) Investment Manager Agreement by and Filed herewith
between Oxford Advisors Ltd. and Overseas
Partners Ltd.
(27) Financial Data Schedule (For SEC use only)
(99) Additional Exhibits
99(a) UPS Custody Arrangements for OPL Common Incorporated by Reference to Exhibit 28(c) of OPL's Registration
Stock. Statement (on Form S-1) No. 2-95460.
99(b) Amendment to OPL's Bye-Laws. Incorporated by Reference to OPL's Proxy statement filed July 3,
1996.
99(c) OPL's Specimen Stock Certificate Incorporated by Reference to Exhibit 99 (c) of OPL's Annual Report
on Form 10-K for the Year Ended December 31, 1996
</TABLE>
b) Reports on Form 8-K: No reports on Form 8-K were filed during the quarter
ended September 30, 1998.
<PAGE>
SIGNATURES
----------
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on behalf by the
undersigned, thereunto duly authorized, in the city of Hamilton, Bermuda.
Date: November 13, 1998 OVERSEAS PARTNERS LTD.
Signed in Hamilton, Bermuda
By: /S/ BRUCE M. BARONE
-----------------------
BRUCE M. BARONE
CHIEF EXECUTIVE OFFICER AND PRESIDENT
<PAGE>
Exhibit 10(jjj)
PURCHASE AND SALE AGREEMENT
THIS PURCHASE AND SALE AGREEMENT (the "Agreement") is made as of the 30th
day of June, 1998 (the "Effective Date"), by and between MADISON PLAZA VENTURE,
an Illinois general partnership ("Seller"), having its principal office at 455
North Cityfront Plaza Drive, Suite 3200, 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 200 West Madison Street, Chicago,
Illinois and commonly known as "Madison Plaza" (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
<PAGE>
work product) used exclusively in connection with the operation of the Land and
the Improvements, including, without limitation, the items listed on
Exhibit 1.1 (c) attached hereto and made a part hereof (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 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
Improvements 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
(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. I (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), including specifically, without limitation, all assignable equipment
leases, and (ii) all assignable existing warranties and guaranties (expressed or
implied) issued to Seller in connection with the Improvements or the Personal
Property (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 matters 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 NINETY-SIX MILLION ONE HUNDRED EIGHTY-
NINE THOUSAND AND N01100 DOLLARS ($196,189,000.00) (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. Wiring instructions shall be delivered to Purchaser in writing not less
than three (3) days prior to the Closing.
1.6 Earnest Money. Upon the execution and delivery of this
-------------
Agreement, Purchaser shall deposit with Commonwealth Land Title Insurance
Company (the "Escrow Agent"), the sum of Two Million and no/100 Dollars
($2,000,000.00) (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 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
2
<PAGE>
of this Agreement. At Purchaser's option, Purchaser may substitute an
irrevocable, unconditional letter of credit for the benefit of the Escrow Agent
in the amount of $2,000,000.00 (the issuer and the form and substance of which
letter of credit must be acceptable to Seller in all respects) for the good
funds Earnest Money deposit required above.
ARTICLE II
TITLE AND SURVEY
2.1 Commitment for Title Insurance. Seller has delivered to
------------------------------
Purchaser, a commitment to issue an ALTA Owner's Policy - 1992 identified as
File No. H455-1295 with an effective date of April 2, 1998, First Revision (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 Section 2.4 hereof, together with copies of all instruments
referenced in Schedule B thereof.
2.2 Survey. Seller has delivered to Purchaser and the Title Company
------
an ALTA survey of the Property (the "Survey") prepared by Chicago Guarantee
Survey Company ("Surveyor") dated May 7, 1998 which is certified 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 such title to the Property as will enable the Title Company to
issue to Purchaser an ALTA Owner's Policy of Title Insurance - 1992 (the "Title
Policy") covering the Land and Improvements, in the full amount of the Purchase
Price with "extended coverage". ALTA Form 3.1 zoning endorsement and such other
endorsements as Purchaser may reasonably require, subject only to the Permitted
Exceptions. The Title Company will retain $50,000,000 of liability and cede
$30,000,000 to Transnation Title Insurance Company, $80,000,000 to Lawyers Title
Insurance Corporation and the balance to First American Title Insurance Company.
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 in
accordance with the terms of this Agreement;
(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; and
(d) matters appearing in the Survey;
3
<PAGE>
(e) items appearing in any later date to the Title Commitment or
shown on any later version 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
(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, or at or prior to the expiration of the Inspection Period (with regard
to any objections raised in any later date of the Title Commitment delivered to
Purchaser no later than three (3) business days prior to the expiration of the
Inspection Period), 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 Exception (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) business 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
attempt to remove, satisfy or cure the 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 sixty (60) 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, with respect to
those New Exceptions that can be satisfied by paying determinable sums of money
such as mortgages, judgment liens and mechanics' liens, to 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 sixty (60) days after the date for Closing set forth in Section 4. 1
hereof, provided that Seller shall not be entitled to an adjournment of Closing
as a result of a New Exception that can be satisfied by paying determinable sums
of money. 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 (other than a New
Exception), Purchaser shall, within five (5) 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).
If the objection to title is the result of a New Exception, and Seller is unable
to cure such objection in the matter described above, then Purchaser shall have
4
<PAGE>
the right to attempt to effect a cure within a reasonable period of time (and
for this purpose Purchaser shall be entitled to a reasonable adjournment of the
Closing if additional time is required. but in no event shall the adjournment
exceed 60 days after the date for Closing set forth in Section 4.1 hereof) and
upon effecting a cure, to offset the costs of such cure against the Purchase
Price due at Closing. If Purchaser elects to exercise its right to effect such
cure and fails to effect a cure, then Purchaser shall have the option afforded
under clauses (i) and (ii) above.
ARTICLE III
INSPECTION PERIOD
3.1 Right of Inspection. During the period beginning on May 4, 1998 and
-------------------
ending at 5:00 p.m. (local time at the Property) on June 18, 1998 (hereinafter
referred to as the "Inspection Period"), and thereafter until Closing, Purchaser
shall have the right to make a non-intrusive physical inspection of the
Property, to perform non-intrusive tests on the Property and to examine at such
place or places at the Property, in the offices of the property manager or
elsewhere as the same may be located, and to make copies of, 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 books and records relating to the income
and expenses of the Property, real estate tax records, correspondence, budgets
(for 1998 and prior years), surveys, plans and specifications, warranties for
services and materials provided to the Property, engineering reports,
environmental audits and similar materials, but excluding materials not directly
related to the leasing, maintenance and/or management of the Property such as
Seller's partnership agreement, internal memoranda, financial projections,
appraisals, partnership accounting and income tax records and similar
proprietary or confidential information. At Purchaser's request, Seller shall
deliver to Purchaser copies of the Leases and the Operating Agreements.
Intrusive inspections or tests of the Property, including, without limitation,
Phase II environmental tests, which Purchaser may desire to perform, may only be
performed with Seller's prior consent, which consent will not be unreasonably
withheld or delayed, and upon such conditions as Seller may impose, including,
without limitation, the furnishing of additional insurance and the required
presence of Seller or its representatives. 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 and, in the presence of Seller or its
representatives if Seller elects to be present. provided that nothing discussed
with said parties' shall be deemed to be a representation or warranty of Seller
hereunder. 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 at the time scheduled
for inspection or testing by Purchaser, 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, delayed or conditioned. 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 arising out of or
resulting from the inspection or testing
5
<PAGE>
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, provided. however, that the foregoing indemnity shall not apply
to any damages which Seller may incur, merely from the fact that such
inspections or tests show that Hazardous Substances or adverse or undesirable
environmental conditions exist at the Property or that result from the release
of existing Hazardous Substances not brought onto the Property by Purchaser or
its agents or consultants and not resulting from the negligent acts or omissions
of Purchaser or its agents or consultants. Purchaser shall maintain and shall
ensure that Purchaser's consultants maintain public liability and property
damage insurance in the amount of $2,000,000 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 10:00
a.m. on July 8, 1998 or such earlier date mutually agreed to by Seller and
Purchaser. 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 trustee's deed (the "Deed") in
recordable form, conveying the Land and Improvements. subject only to the
Permitted Exceptions:
(b) deliver to Purchaser a duly executed bill of sale conveying the
Personal Property without warranty of title or use 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 pursuant to which (i) Seller shall indemnify Purchaser and hold
Purchaser harmless from and against any and all claims pertaining to the Leases
arising 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 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;
6
<PAGE>
(d) to the extent assignable, 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 pursuant to which (i)
Seller shall indemnify Purchaser and hold Purchaser harmless from and against
any and all claims pertaining to the Operating Agreements arising prior to
Closing and (ii) Purchaser shall indemnify Seller and hold Seller harmless from
and against any and all claims pertaining to the Operating Agreements arising
from and after the Closing;
(e) deliver to Purchaser such Tenant Estoppels (as defined in Section
4.6(d) hereof) as are in Seller's possession and such Seller Estoppels (as
defined in Section 4.6(d) hereof) as Seller may elect 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 Purchaser a certificate, dated as of the date of Closing
and executed on behalf of Seller by a duly authorized officer thereof, 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 actions under 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 change which is not permitted hereunder or is beyond the reasonable control
of Seller to prevent shall, if materially adverse to Purchaser, constitute the
non-fulfillment of the condition set forth in Section 4.6(b); 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;
7
<PAGE>
(j) deliver to Purchaser the Leases, Operating Agreements and
licenses and permits, if any, in the possession of Seller or Seller's agents
(including Miglin-Beitler Management Co. ("Manager"), the on-site manager of the
Property), together with the leasing and property files and records currently
maintained in the management office (without removal from such files of
materials which were contained therein during Purchaser's inspection of same
during the Inspection Period, other than Manager's proprietary materials) and
such other leasing and property files and records as are material in connection
with the continued operation, leasing and maintenance of the Property. Purchaser
shall cooperate with Seller for a period of seven (7) years after Closing (or
such shorter period that Purchaser owns the Property unless Purchaser has
retained such files and records following its sale of the Property) 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 notice
(which notice shall identify the nature of the information sought by Seller), at
all reasonable times and at Seller's cost and expense, to examine and make
copies of any and all such instruments, files and records delivered by Seller to
Purchaser, which right shall survive the Closing;
(k) deliver to Purchaser possession and occupancy of the Property,
subject only to the Permitted Exceptions;
(l) deliver to the Title Company such documents as are required by the
Title Company to issue the Title Policy and the endorsements thereto required
hereby, including a "gap undertaking", ALTA Statement and any required lien
waivers; and
(m) deliver to Purchaser the disclosure documentation, if any,
required pursuant to the Illinois Responsible Property Transfer Act.
(n) deliver to Purchaser an indemnity agreement in form reasonably
acceptable to Purchaser relating to amounts. if any, which may be payable by
Seller to the Illinois Department of Revenue pursuant to the provisions of
Section 902(d) of the Illinois Income Tax Act or to the City of Chicago pursuant
to the provisions of Section 3-4-140 of the Uniform Revenue Procedures Act.
(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), and 4.2(f) above;
8
<PAGE>
(c) deliver to Seller a certificate executed by Purchaser confirming
that the representations and warranties of Purchaser set forth in Section 5.5
are true and correct in all material respects on the date of Closing;
(d) 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
(e) 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 the day of Closing, as if Purchaser were vested with title to
the Property during the entire day upon which Closing occurs:
(i) rents, if any, paid and collected as of the Closing (the term
"rents" as used in this Agreement includes all payments due and payable
by tenants under the Leases whether characterized as "rent" under the
Leases, or otherwise);
(ii) general real estate taxes and assessments ("Taxes") levied
against the Property which are payable in the year 1998 in accordance
with Section 4.4(b)(ii) below;
(iii) payments under the Operating Agreements;
(iv) 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
(v) 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.
(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 actually held by Seller pursuant to
the Leases or credit to the account of Purchaser the amount of such
security deposits (to the extent such security deposits are not applied
against delinquent rents or otherwise as provided in 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 (if
the same are assignable and are assigned by Seller to Purchaser), or, at
Seller's option, Seller shall be entitled to receive and retain such
refundable cash and deposits.
9
<PAGE>
(ii) Purchaser acknowledges that in Cook County, Illinois, Taxes for
calendar year 1997 are payable in calendar year 1998 in two installments,
the first of which has been paid. Purchaser further acknowledges that 1998
Taxes are payable in 1999. With respect to that portion of Taxes payable
in 1998 allocable to the period prior to the date of Closing, Seller shall
give a credit to Purchaser at Closing based on the amount of such Taxes as
estimated by Seller for purposes of monthly tax escalation billings to
tenants in 1998, less the amount of such Taxes previously paid by Seller
(or if the amount paid by Seller is greater than the amount allocable to
such period, Seller shall receive a credit in the amount of such excess).
Purchaser shall be responsible for the payment of the second installment of
Taxes for the year 1997 together with all Taxes for the year 1998 which are
payable in 1999. To the extent that the actual Taxes payable in calendar
year 1998 differs from the amount on which the proration was based, the
parties agree to reprorate such Taxes within thirty (30) days of receipt of
the final tax bill.
(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 which
become due and payable (whether before or after Closing) (1) as a result of
any renewals or expansions of existing Leases entered into between April 3,
1998 and the date of Closing, and (2) under any new Leases entered into
between April 3, 1998 and the date of Closing (provided such renewal,
expansion or new Lease entered into after the Effective Date is entered
into in accordance with this Agreement), (B) all Tenant Inducement Costs
arising from Leases in existence prior to April 3, 1998 with respect to
work or improvements to be performed pursuant to such Leases after the date
of Closing, (C) the unused portion of the tenant improvement allowance
payable to National Futures Association in the amount of $162,450, (D) the
leasing commission in the amount of $7,862 which is payable to Manager if
Chicago Capital fails to deliver a notice of termination in accordance with
its Lease, and (E) 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, without limitation, any
leasing commissions payable to Manager pursuant to the leasing agreement
between Seller and Manager with respect only to leases entered into by
Purchaser within ninety (90) days after Closing with tenants listed on
Exhibit 4.4(b)(iv)(A). Attached hereto as Exhibit 4.4(b)(iv)(B) is list of
---------------------
all Leases, renewals or expansions entered into between April 3, 1998 and
the Effective Date, which list includes the amount (or estimated amount) of
all Tenant Inducement Costs and leasing commissions payable in connection
therewith. If, as of the date of Closing, Seller shall have paid any
Tenant Inducement Costs or leasing
10
<PAGE>
commissions for which Purchaser is responsible pursuant to the foregoing
provisions, Purchaser shall reimburse Seller therefor at Closing. Except as
provided above. Seller shall be responsible for the payment of all Tenant
Inducement Costs and leasing commissions which become due and payable with
regard to renewals, expansions and new Leases entered into prior to April 3,
1998, including, without limitation, the Donaldson, Lufkin & Jenrette
expansion. For purposes hereof, the term "Tenant Inducement Costs" shall
mean reasonable attorneys' fees and costs incurred in connection with the
preparation and negotiation of a new Lease or a renewal or expansion of an
existing Lease and any out-of-pocket payments required under a Lease to be
paid by the landlord thereunder to or for the benefit of the tenant
thereunder which is in the nature of a tenant inducement, including
specifically, without limitation, tenant improvement costs or allowances,
space planning costs, construction management fees, lease buyout costs, and
moving, design and refurbishment allowances, and any unused allowances for
such items which are to be applied after Closing against rent. The term
"Tenant Inducement Costs" shall not include any mid-term decorating or
carpeting allowances or the 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 thirty (30)
days after the receipt thereof, deliver to Purchaser any such rent which
Purchaser is entitled to hereunder relating to the date of Closing and any
period thereafter, and (b) if Purchaser collects any unpaid or delinquent
rent from the Property, Purchaser shall, within thirty (30) days after the
receipt thereof, deliver to Seller any such rent which Seller is entitled to
hereunder relating to the period prior to the date of Closing. 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 (Seller's share not to be in excess of
the amount of delinquent rents recovered by Purchaser) 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
Closing, do not become due and payable until after Closing or are paid prior
to Closing but are subject to adjustment after Closing (such as real estate
tax escalations, 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 (or any amounts overpaid by
11
<PAGE>
tenants) shall, to the extent applicable to a period extending through the
Closing, be prorated between Seller and Purchaser as of Closing and
Seller's portion thereof shall be remitted promptly to Seller by Purchaser
or to Purchaser by Seller, as applicable. Seller shall have no right to
seek to collect any delinquent rents directly from tenants during the
period commencing at Closing and ending on the date any such tenant is no
longer a tenant in the Improvements.
(c) To the extent any prorations are based upon estimated amounts,
such prorations shall be adjusted within 30 days of 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 extended coverage and ALTA 3. 1 zoning endorsement) to be
issued to Purchaser by the Title Company at Closing, (c) the cost of the Survey,
(d) all transfer taxes payable in connection with this transaction, including
the transfer taxes imposed by the State of Illinois, the County of Cook and the
City of Chicago, and (e) one-half (1/2) of any escrow or closing fees which may
be charged by the Escrow Agent or Title Company. Purchaser shall pay (w) the
fees of any counsel representing Purchaser in connection with this transaction;
(x) the fees for recording the deed conveying the Property to Purchaser; (y) 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 or 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 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 or not
adverse to Purchaser).
(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.
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<PAGE>
(d) Seller shall have received and provided to Purchaser estoppel
certificates. substantially in the form attached hereto as Exhibit 4.6(d)(i) (a
-----------------
"Tenant Estoppel") from Hyatt Corporation, Pritzker & Pritzker, Towers Perrin,
Hartford Insurance, Donaldson Lufkin & Jenrette, and National Futures
Association (collectively, the "Major Tenants") and from other tenants which,
together with the Major Tenants, lease at least seventy-seven and five tenths
percent (77.5 %) of the rentable square footage of the Improvements which is
leased as of the Effective Date. In the event that Seller is unable to deliver
the applicable percentage of Tenant Estoppels as provided above, at Seller's
option, this condition shall be deemed satisfied by Seller executing and
delivering at Closing in favor of Purchaser, on behalf of any one or more
tenants, other than the Major Tenants, which shall have failed to provide the
required Tenant Estoppel an estoppel certificate in substantially the form
attached hereto as Exhibit 4.6(d)(ii) (a "Seller Estoppel") (provided that
------------------
Seller Estoppels cannot be delivered with respect to more than 15% of the
rentable square footage of the Improvements which is leased as of the Effective
Date); provided, that Seller's liability under any such Seller Estoppel so
executed and delivered by Seller shall cease and terminate upon the receipt by
Purchaser following the Closing of a duly executed Tenant Estoppel from the
applicable tenant. To qualify as a Tenant Estoppel or Seller Estoppel for the
purposes of this Section 4.6(d), such Tenant Estoppel or Seller Estoppel must be
given by or with respect to a tenant which is not in bankruptcy; must be
substantially in the form of Exhibit 4.6(d)(i) or Exhibit 4.6(d)(ii), as
----------------- ----------
applicable, without material modification to paragraphs C or D thereof; must
confirm that the documents comprising the applicable Lease are as listed on
--
Exhibit 1. 1 (d) hereto; must confirm that the monthly base rent currently
- ----------------
payable by the tenant is as set forth in the Lease; must confirm the monthly
amount currently payable by the tenant as its estimated monthly rent adjustment
deposit (to the extent applicable under said tenant's Lease); and must confirm
that rent payments are not more than fifteen (15) days delinquent.
Notwithstanding the foregoing, if a Tenant Estoppel indicates that rent payments
are more than fifteen (15) days delinquent, said Tenant Estoppel will qualify as
a Tenant Estoppel hereunder if Seller provides Purchaser with evidence
reasonably acceptable to Purchaser that rent payments are not more than fifteen
(15) days delinquent.
(e) No condemnation proceeding against the Property or any part thereof
shall have been filed, nor shall Seller have received written notice from a
governmental authority that such a proceeding will be commenced, which, in
either case, would result in a permanent and material impairment of the current
use of the Property.
In the event any of the foregoing conditions are not fulfilled or waived 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 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.
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<PAGE>
(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 by
Seller by Closing, this Agreement shall terminate and the Earnest Money shall be
retained by Seller.
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. To Seller's knowledge, there is no action, suit,
---------------
arbitration, unsatisfied order or judgment, governmental investigation or
proceeding pending against the Property or the transaction 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 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 the landlord is a
party affecting the Property other than subleases or other occupancy
agreements between tenants and third parties. Except as otherwise set forth
in the Leases, to Seller's knowledge, no presently effective rent
concessions have been given to any tenants and no rent has been paid in
advance by any tenants respecting a period subsequent to the Closing. Except
as set forth in Exhibit 5. 1 (c) hereto, no tenants have asserted in writing
any claims, defenses or offsets to rent accruing from and after the date of
Closing. To Seller's knowledge, except as set forth in Exhibit 5.1(c)
-----------------
hereto, no material default, delinquency or breach exists on the part of
14
<PAGE>
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 to 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. Notwithstanding anything to
the contrary 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. The termination of any Lease prior to Closing by reason of the
tenant's default shall not entitle Purchaser to an abatement of or credit
against the Purchase Price or give rise to any other claim on the part of
Purchaser. Seller has received no written notice of any termination of any
Lease.
(d) Lease Brokerage. There are no lease brokerage agreements, leasing
---------------
commission agreements or other agreements 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).
--------
(e) No Violations. Except as disclosed in Exhibit 5.1(e) hereto,
------------- --------------
Seller has not received prior to the Effective Date any written
notification from any governmental or public authority (i) that the
Property is in violation of any applicable fire, health, building, use,
occupancy or zoning laws where such violation remains outstanding or (ii)
that any work is required to be done upon or in connection with the
Property, 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. Seller has not received written notice that any
------------
condemnation proceeding relating to the Property has been commenced or is
threatened. and to Seller's knowledge, no condemnation proceedings relating
to the Property are pending or threatened.
(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 regarding Hazardous
15
<PAGE>
Substances at the Property. As used herein, "Hazardous Substances" means
all hazardous or toxic 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 or ordinances applicable to the Property.
(j) Management and Leasing Agreements. The management agreement and
---------------------------------
leasing agreement between Seller and Manager will terminate upon Closing
and Purchaser shall have no obligations thereunder except with respect to
the payment of any leasing commissions payable to Manager pursuant to the
terms of the leasing agreement for which Purchaser is responsible pursuant
to Section 4.4(b)(iv) hereof.
(k) Options, Etc. Seller has not granted and there does not exist any
-------------
option, first refusal right or other first opportunity right to purchase
the Property which is currently in effect.
(1) Land Trust. Title to the Land and Improvements is held in an
----------
Illinois land trust, the sole beneficiary of which is Seller. Seller has
full power and authority to direct the trustee to convey the Land and
Improvements.
5.2 Knowledge Defined. References to the "knowledge" of Seller shall
-----------------
refer only to the actual knowledge of the Designated Employee (as hereinafter
defined) of ERE Yarmouth, and shall not be construed, by imputation or
otherwise, to refer to the knowledge of Seller, ERE Yarmouth, or any affiliate
of either of them. to any property manager, or to any other officer, agent,
manager, representative or employee of Seller or ERE Yarmouth or any affiliate
thereof or to impose upon such Designated Employee any duty to investigate the
matter to which such actual knowledge, or the absence thereof, pertains, except
that the Designated Employee has discussed such matters with J. Michael Reilly
(the property manager) and Gary Denenberg (the leasing manager). As used herein,
the term "Designated Employee" shall refer to Michael A. Lunder.
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 (1) 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 (subject to the following limitation) 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 (1) year period and an action shall have
been commenced by Purchaser against Seller within eighteen (18) months of
Closing.
16
<PAGE>
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 Tenant Estoppel from each tenant occupying space in the
Improvements.
(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 together with a statement of all Tenant Inducement
Costs and leasing commissions to be incurred or estimated to be
incurred in connection therewith. Purchaser agrees to notify Seller in
writing within five (5) business days after its receipt thereof of
either its approval (which approval will not be unreasonably withheld)
or disapproval, provided, however, that Purchaser shall be deemed to
have approved any extension of a lease term or expansion of premises
demised under a Lease which expansion or extension is required by the
terms of such Lease. In the event Purchaser informs Seller that
Purchaser does not approve the renewal or expansion of the existing
Lease or the new Lease, Seller shall not effect such renewal,
expansion or new Lease except upon terms and conditions approved by
Purchaser. In the event Purchaser fails to notify Seller in writing of
its approval or disapproval within the five (5) day time period for
such purpose set forth above, such failure shall be deemed the
approval by Purchaser.
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") and
Purchaser is not a "party-in-interest" (within the meaning of Section
3(14) of ERISA) to any of the pension or profit sharing plans of
International Business Machines.
(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.
17
<PAGE>
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. All other representations and warranties of Purchaser shall survive
Closing for a period of ninety (90) days.
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. Except for claims based on representations or warranties contained
in Section 5. l(i), Purchaser 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. (S)12101, et M., if applicable,). All
--
reports forwarded by Purchaser to Seller pursuant to this Agreement shall be as
furnished without warranty or representation of any kind with respect thereto,
including, without limitation, any warranty or representation of accuracy,
completeness or methodology.
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 permitted termination of this Agreement by either Seller or Purchaser as
herein expressly provided, 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.
Except as otherwise provided in this Agreement, Seller expressly waives its
rights to seek additional damages in the event of Purchaser's default hereunder.
6.2 Default by Seller. If Seller defaults in the performance of any
-----------------
material obligation hereunder 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 of all out-
of-pocket third-party costs and expenses incurred by Purchaser in connection
with this Agreement (including, without limitation, costs incurred in the
performance of tests, inspections and other due diligence and the procurement of
financing for the acquisition of the Property) up to a maximum amount of
$600,000, 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. Except as otherwise provided in
this Agreement, 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
18
<PAGE>
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 (a) Seller performs any necessary
repairs or, (b) at Seller's option, provided the insurance proceeds (together
with the deductible amount) or the condemnation awards are sufficient to make
the necessary repairs, 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 relating to the premises in
question. In the event that Seller elects to per-form repairs upon the
Property, Seller shall use reasonable efforts to complete such repairs promptly
and the date of Closing shall be extended a reasonable time in order to allow
for the completion of such repairs. If Seller elects to assign a casualty claim
to Purchaser, 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, Purchaser may
------------
terminate this Agreement by written notice delivered to Seller within ten (10)
business days after Seller sends Purchaser written notice of the occurrence of a
major loss or damage, in which event the Earnest Money shall be returned to
Purchaser. Failure of Purchaser to timely deliver to Seller a notice that it
elects to proceed with Closing shall be deemed an election to terminate this
Agreement. If Purchaser timely elects to proceed to Closing, then 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 and the Purchase Price
shall be reduced by an amount equal to the deductible amount under Seller's
insurance policy. Upon Closing, MI risk of loss with respect to the Property
shall pass to Purchaser.
7.3 Definition of "Major" Loss or Damage. For purposes of Sections 7.1
------------------------------------
and 7.2, "major" loss or damage refers to the following: (i) loss or damage to
the Property or any portion thereof, whether by casualty or condemnation, 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 Two Million and
No/100 Dollars ($2,000,000.00), or (ii) any loss due to a condemnation which
permanently and materially impairs the current use of the Property, or (iii) any
loss or damage to the Property, whether by casualty or condemnation, which
results in the right of a tenant under a Major Lease to terminate its Lease
(unless such right is waived in writing within ten (10) business days after
Seller's notice to Purchaser of such loss or damage) or results in the right of
tenants under Leases aggregating 15,000 square feet or more of space in the
Property to terminate such Leases
19
<PAGE>
(exclusive of such rights which have been waived in writing within ten (10)
business days after Seller's notice to Purchaser of such loss or damage). If
Purchaser does not give notice to Seller of Purchaser's reasons for disapproving
an architect within five (5) business 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 Eastdil Realty, Inc. (the "Broker"). Seller agrees to pay any fee
payable to Broker pursuant to a separate written agreement between Seller and
Broker. Each party agrees that should any claim be made for brokerage
commissions or finder's fees by any broker or finder other than the Broker 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 or the termination of
this Agreement and shall not be subject to any limitation on damages contained
in any other provision of this Agreement.
ARTICLE IX
DISCLAIMERS AND WAIVERS
9.1 No Reliance on Documents. Except as expressly stated herein, 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. 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) 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, 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 THE
20
<PAGE>
PROPERTY, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OR REPRESENTATIONS AS TO
HABITABILITY. MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, 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 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 EXECUTED AND DELIVERED AT CLOSING. PURCHASER HAS NOT
RELIED AND WILL NOT RELY ON, AND SELLER IS NOT LIABLE FOR OR BOUND BY, ANY
EXPRESSED OR 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 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
EXECUTED AND DELIVERED 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 EXECUTED AND DELIVERED
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 PURCHASER9S
INVESTIGATIONS, AND PURCHASER, UPON CLOSING, SHALL BE DEEMED TO HAVE WAIVED,
RELINQUISHED AND RELEASED SELLER (AND SELLERS, 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
21
<PAGE>
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 UNDER ANY DOCUMENT EXECUTED
AND DELIVERED AT CLOSING. 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 REMEDIATION UNLESS SUCH CLAIM RESULTS FROM A BREACH OF ANY APPLICABLE
REPRESENTATION OR WARRANTY OF SELLER HEREUNDER OR UNDER ANY DOCUMENT EXECUTED
AND DELIVERED AT CLOSING.
9.3 Survival of Disclaimers. Seller and Purchaser agree that the
-----------------------
provisions of this Article IX shall survive Closing.
ARTICLE X
MISCELLANEOUS
10.1 Confidentiality. Purchaser and Seller, and their respective
---------------
representatives, shall hold in strictest confidence all data and information
obtained with respect to the other party or its business, whether obtained
before or after the execution and delivery of this Agreement (excluding any
information which is a matter of public record), and shall not disclose the same
to others, provided, however, that it is understood and agreed that each party
may disclose such data and information to the employees, consultants, lenders,
accountants and attorneys of such party provided that such persons agree to
treat such data and information confidentially, to others as required by law and
in connection with any legal proceeding against the other party. In the event
this Agreement is terminated or Purchaser fails to perform hereunder, Purchaser
shall promptly return to Seller any statements, documents, schedules, exhibits
or other written information obtained from Seller in connection with this
Agreement or the transaction contemplated herein. In the event of a breach or
threatened breach by Purchaser or Seller, or their respective agents or
representatives, of this Section 10.1, the other party shall be entitled to an
injunction restraining the breaching party or its agents or representatives from
disclosing, in whole or in part, such confidential information. Nothing herein
shall be construed as prohibiting a party from pursuing any other available
remedy at law or in equity for such breach or threatened breach. The provisions
of this Section 10.1 shall terminate as of Closing but shall, if no Closing
occurs, survive the termination of this Agreement. Notwithstanding the
foregoing, no disclosure of the parties comprising Seller shall be made by
Purchaser at any time without the consent of Seller. The parties acknowledge
that newspaper items regarding the sale of the
22
<PAGE>
Property appeared in Chicago newspapers and that neither party shall have any
liability therefor under this Section 10.1 or Section 10.2.
10.2 Public Disclosure. Prior to Closing and until four (4) months after
-----------------
Closing, any release to the public of information with respect to the sale
contemplated herein or any matters set forth in this Agreement (other than
matters which are of public record or are required by law to be disclosed) will
be made only in the form approved by Purchaser and Seller and their respective
counsel. Notwithstanding the foregoing, no disclosure of the parties comprising
Seller shall be made by Purchaser at any time without the consent of Seller.
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, except that Purchaser may assign this
Agreement to an entity controlled by Purchaser. Any assignment by Purchaser
shall not release Purchaser from the performance of its obligations hereunder.
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,
notwithstanding any contrary provision which may be contained herein, Seller
shall have the right to pursue any remedy available at law or in equity as a
result of such assignment or transfer.
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, or (d) legible facsimile
transmission 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 receipt (provided
that refusal to accept delivery shall be deemed receipt) or, in the case of
facsimile transmission, as of the date of the facsimile transmission provided
that for informational purposes only and not for determining the effective date
or effectiveness of any notice an original of such facsimile shall also be sent
to the intended addressee by means described in clauses (a), (b) or (c) above.
Unless changed in accordance with the preceding sentence, the addresses for
notices given pursuant to this Agreement shall be as follows:
23
<PAGE>
If to Seller:
c/o ERE Yarmouth 455 North Cityfront Plaza Drive
Suite 3200
Chicago, Illinois 60611-5555
Attn.: Michael A. Lunder
TELECOPY: (312) 527-5172
with a copy to: The Equitable Life Assurance Society of the United States
1290 Avenue of the Americas
New York, New York 10104
Attn.: Corporate and Investments -- Law Department
TELECOPY: (212) 314-3963
and to: UBS Asset Management
1345 Avenue of the Americas
New York, New York 10105
Attn.: David Flynn
TELECOPY: (212) 698-6546
and to: Reid & Priest
40 West 57th Street
New York, New York 10019
Attn.: Richard Kane, Esq.
TELECOPY: (212) 603-2001
and to: Katten Muchin & Zavis
525 West Monroe Street
Suite 1600
Chicago, Illinois 60661
Attn.: Ira J. Swidler, 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
24
<PAGE>
with a copy to: Overseas Partners, Ltd.
Mintflower Place
P.O. Box HM1581
8 Par-La-Ville Road
Hamilton HM GX
Bermuda
Attn.: Legal Department
TELECOPY: (441) 292-7240
and with a copy to: Troutman Sanders LLP
NationsBank Plaza
Suite 5200
600 Peachtree Street, N.E.
Atlanta, Georgia 30308-2216
Attn.: James W. Addison, Esq.
TELECOPY: (404) 885-3995
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 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 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.
25
<PAGE>
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.
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 state 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 (and its permitted or approved assignees) only
and are not for the benefit of any third party, and accordingly, no third party,
other than a permitted or approved assignee of Purchaser, 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 and Schedules. 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
26
<PAGE>
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; 4.20); 4.4; 5.3, 5.6; 8.1; 9.3; 10.2; 10.8; 10.12; 10.15; and
10.16. The provisions of the following Sections of this Agreement shall survive
the termination of this Agreement: 3.1; 8.1; 1 0.1; 10.2; 10.15: and 10. 16.
27
<PAGE>
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as
of the Effective Date.
SELLER:
MADISON PLAZA VENTURE, an Illinois general partnership
By: MW Associates, an Illinois general partnership, its Managing Venturer
By: The Equitable Life Assurance Society of the United States, its Managing
Venturer
By: /s/ Michael Lunder
Name: Michael Lunder
Title: Investment Officer
PURCHASER:
OVERSEAS PARTNERS CAPITAL CORP., a Delaware corporation
By:
Name:
Title:
28
<PAGE>
IN WITNESS WHEREOF. the parties hereto have duly executed this Agreement as
of the Effective Date.
SELLER:
MADISON PLAZA VENTURE. an Illinois general partnership
By: MW Associates. an Illinois general partnership, its Managing Venturer
By: The Equitable Life Assurance Society of the United States, its Managing
Venturer
By:
Name:
Title:
PURCHASER:
OVERSEAS PARTNERS CAPITAL CORP., a Delaware corporation
By: /s/ Bruce M. Barone
Name: Bruce Barone
Title: President, CEO
29
<PAGE>
Exhibit 1. 1 (a)
----------------
LEGAL DESCRIPTION OF THE LAND
THE EAST 1/2 OF LOT 6 AND ALL OF LOTS 7 AND 8 (ALL TAKEN AS A TRACT) EXCEPTING
FROM SAID TRACT THAT PART TAKEN FOR WIDENING OF MADISON STREET IN BLOCK 54 IN
ORIGINAL TOWN OF CHICAGO IN SECTION 9. TOWNSHIP 39 NORTH, RANGE 14 EAST OF THE
THIRD PRINCIPAL MERIDIAN, IN COOK COUNTY, ILLINOIS.
<PAGE>
Exhibit 1.1(c)
--------------
PERSONAL PROPERTY
<PAGE>
200 West Madison
Furniture Inventory
Management Office
- -----------------
Desks - mahogony 4
Credenza Tops - mahogony 5
L-shape Reception desk - mahogony 1
Executive Chairs - black leather 4
Conference Room Table 1
Mahogony tables - desk extensions 3
Glass lamp tables 5
Mahogony lamp tables 3
Reception area - mahogony table 1
Guest Chairs - grey fabric 5
Guest Chairs - buff leather 2
Conference room chairs - buff leather 8
Couches - fabric 2
Steno chair 1
2-drawer lateral files 15
5-drawer lateral files 5
Supply cabinet 1
Wall hangings (pictures) 13
Madison Plaza Sign (reception) 1
Microwave 1
First Aid Kit 1
Safe 1
Refrigerator 1
Security Office / Control Room
- ------------------------------
Double pedestal desk-formica 1
Work surface - formica 1
2-drawer file cabinets - black 3
2-drawer lateral file cabinet 1
Metal work station table 1
Executive Chair - red cloth 1
Steno chair 1
typing stand 1
NOTE: refrigerator in security office is
personal property of staff
<PAGE>
200 West Madison
Furniture Inventory
Engineering Office
Metal desks 2
Executive Chairs - cloth 2
Side chair 1
2-drawer lateral file cabinets - black 3
4-drawer file cabinet 1
cabinets (low profile) 5
Wood credenza top 1
Conference Room
- ---------------
cloth chairs 40
podium 1
flip chart 1
tables - formica (rectangle) 16
tables - formica (corner) 6
metal planters 2
<PAGE>
200 West Madison
Equipment Inventory
Management Office
- -----------------
HP LaserJet 4 Plus 1
HP LaserJet III D 1
Epson Stylus Color 600 1
Compaq Deskpro 486 w/
Magnavox monitor 3
AST Bravo LC 486/66DX
w/ Zeos monitor 1
AST Bravo MS 486/66DX w/
Samsung monitor 1
Typewriter 1
Security Office
Building Automation:
Compaq Deskpro 486 w/
Viewsonic monitor 1
Okidata, microline 320 printer 1
Security Computer:
Digital - drive & monitor 1
Digital LA75 printer 1
Monitors 4
Typewriter 1
Radios - Motorola/GE 24
Repeater & charger for radios
<PAGE>
200 West Madison
Equipment Inventory
Engineering Office
Building Automation:
Compaq Deskpro Pentium
w/ Viewsonic monitor 1
Maintenance Computer:
IBM 286 1
HP 820 C LaserJet 1
HP LaserJet 11 1
Gateway 2000 w/ HP
Deskjet 680 owned by
Commonwealth Edison 1
Conference Room
Slide projector & cart 1
Mitsubishi TV (approx. 25") 1
Mitsubishi VCR & cart 1
Overhead projectors 2
one w/ cart 1
<PAGE>
200 West Madison
Engineering/Attic Stock Inventory
200 West Madison
Engineering/Attic Stock Inventory
E-4 Storage
Granite curtainwall 77 pieces
E-6 Storage
Misc. Pavers 236 pieces
S-50 Storage
Marble (misc) 92 pieces
Marble (small pieces) 378 pieces
Glass Attic Stock
Double Pane - various sizes 30 pieces
Single Pane 10 pieces
Equipment
Gravely M-12 Snowbrush 12 H 1
Genie Hi-Lift 1
Hydraulic Hand Jack 1
House Window Rig 45-FL 1
<PAGE>
Exhibit 1. 1 (d)
- ----------------
LEASE SCHEDULE
<PAGE>
<TABLE>
<CAPTION>
MADISON PLAZA LEASE FILE AUDIT
27-Jun-98
10:08 AM
SUITE TENANT DOCUMENT DOCUMENT DATE
- -----------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
2800 3077 W. Jefferson Corp. Lease Agreement August 4, 1993
- -----------------------------------------------------------------------------------------------------------------------
1835 Accuword International of Illinois, Inc. Lease Agreement March 2, 1992
First Amendment December 10, 1993
Termination Agreement March 19, 1998
- -----------------------------------------------------------------------------------------------------------------------
220 Acculingua of Illinois, Inc. Lease Agreement March 19, 1998
- -----------------------------------------------------------------------------------------------------------------------
230 Accuworld, LLC Lease Agreement March 19, 1998
- -----------------------------------------------------------------------------------------------------------------------
520 Addeco Employment Services, Inc. Lease Agreement May 29, 1997
- -----------------------------------------------------------------------------------------------------------------------
2400 & 2500 Baird & Warner, Inc. Lease Agreement July 25, 1984
Lease Amendment Undated
Settlement Agreement July 20, 1994
Second Amendment July 20, 1994
- -----------------------------------------------------------------------------------------------------------------------
3510 Baker, Fentress & Company Lease Agreement July 1, 1983
Lease Amendment July 1, 1983
First Amendment July 25, 1989
Second Amendment October, 1991
Third Amendment September 5, 1995
- -----------------------------------------------------------------------------------------------------------------------
2610 Barnes & Thornburg Lease Agreement August 31, 1994
First Amendment May 23, 1995
Second Amendment June 9, 1995
Third Amendment January 22, 1996
Fourth Amendment October 25, 1996
Fifth Amendment January 15, 1997
Sixth Amendment September 8, 1997
Seventh Amendment October 14, 1997
- -----------------------------------------------------------------------------------------------------------------------
1020 Bear Stearns & Co., Inc. Lease Agreement December 12, 1997
First Amendment February 27, 1998
- -----------------------------------------------------------------------------------------------------------------------
2670 Benefits Communication Corporation Lease Agreement March 2, 1995
First Amendment December 18, 1995
- -----------------------------------------------------------------------------------------------------------------------
2040 Birndorf & Birndorf, P.C. Lease Agreement May 30, 1995
- -----------------------------------------------------------------------------------------------------------------------
460 Bradley University Lease Agreement July 18, 1995
- -----------------------------------------------------------------------------------------------------------------------
1910 James Brown & Associates, Ltd. Lease Agreement February 18, 1993
James Brown & Associates, Ltd. Storage Agreement July 6, 1995
- -----------------------------------------------------------------------------------------------------------------------
3540 Donald Brenner/dba The Brenner Group Lease Agreement July 1, 1993
- -----------------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
MADISON PLAZA LEASE FILE AUDIT
27-Jun-98
10:08 AM
SUITE TENANT DOCUMENT DOCUMENT DATE
- ------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Letter Agreement June 11, 1998
2300 Canadian Imperial Bank of Commerce Lease Agreement September 14, 1984
First Amendment September 14, 1984
Second Amendment May, 1990
Third Amendment February 2, 1995
- ------------------------------------------------------------------------------------------------------------------------------
1950 Canmann Chaiken Rosenblum Vandenberg & Smith Lease Agreement October 20, 1992
- ------------------------------------------------------------------------------------------------------------------------------
2010 The Carson Group, Inc. Lease Agreement August 5, 1997
First Amendment January 29, 1998
- ------------------------------------------------------------------------------------------------------------------------------
2175 Cernek, Thomas P. & Cernek, Jeffrey T. Lease Agreement March 26, 1996
- ------------------------------------------------------------------------------------------------------------------------------
3440 Centura Software Corporation Lease Agreement July 15, 1996
First Amendment August 1, 1996
- ------------------------------------------------------------------------------------------------------------------------------
2000 Chicago Capital, Inc Lease Agreement September 1, 1995
Parking Agreement January 24, 1996
- ------------------------------------------------------------------------------------------------------------------------------
3660 Thomas R. Cirignani & Associates Lease Agreement June 9, 1994
Parking Agreement October 9, 1996
- ------------------------------------------------------------------------------------------------------------------------------
716 Column financial, Inc. Lease Agreement July 9, 1997
- ------------------------------------------------------------------------------------------------------------------------------
2180 Corporate Real Estate Solutions, Inc. Lease Agreement July 16, 1996
- ------------------------------------------------------------------------------------------------------------------------------
470 CPC Electrical Supply Company Lease Agreement September 1, 1996
First Amendment September 1, 1997
- ------------------------------------------------------------------------------------------------------------------------------
600 Dearborn Partners, LLC Lease Agreement June 10, 1997
- ------------------------------------------------------------------------------------------------------------------------------
3550 Decision Quest, Inc. Lease Agreement December 15, 1995
- ------------------------------------------------------------------------------------------------------------------------------
1700 Donaldson Lufkin & Jenrette, Inc. License/Indemnification June 22, 1992
Agreement
Lease Agreement December 29, 1992
First Amendment June 7, 1996
Parking Agreement November 1, 1993
Parking Agreement February 1, 1996
Storage Agreement (6) December 4, 1996
Parking Agreement October 24, 1996
Second Amendment March 30, 1998
- ------------------------------------------------------------------------------------------------------------------------------
1010 DLJ Long Term Investment Corporation Lease Agreement August 8, 1997
- ------------------------------------------------------------------------------------------------------------------------------
2850 Fact Finders, Inc/dba Loggans & Cox Lease Agreement May 28, 1993
First Amendment July 1, 1993
Second Amendment April 27, 1994
- ------------------------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
MADISON PLAZA LEASE FILE AUDIT
27-Jun-98
10:08 AM
SUITE TENANT DOCUMENT DOCUMENT DATE
- ------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
3500 Ferguson Partners LLP Lease Agreement September 9, 1994
Storage Agreement April 15, 1997
- ------------------------------------------------------------------------------------------------------------------------
2100 FMC Corporation Lease Agreement March 3, 1995
FMC Corporation Parking Agreement May 1, 1995
- ------------------------------------------------------------------------------------------------------------------------
472 Richard L. Gerber Lease Agreement December 20, 1993
- ------------------------------------------------------------------------------------------------------------------------
2250 The Grabscheid Group, Ltd. Lease Agreement January 28, 1992
First Amendment February 1, 1997
Second Amendment January 27, 1997
Parking Agreement March 19, 1993
- ------------------------------------------------------------------------------------------------------------------------
900, 1100 The Hartford Fire Insurance Company Lease Agreement February 2, 1984
Letter February 15, 1984
Letter June 19, 1984
Letter June 27, 1984
Exapansion Amendment February 15, 1985
Letter April 29, 1985
Second Amendment February 13, 1987
Third Amendment June 18, 1987
The Hartford Fire Insurance Company Fourth Amendment November 9, 1987
Fifth Amendment January 21, 1991
Sixth Amendment March 19, 1992
Parking Agreement April 30, 1987
Letter February 22, 1993
Letter June 15, 1994
Letter June 20, 1995
Amendment to 6/20/95 Letter Undated
- ------------------------------------------------------------------------------------------------------------------------
2450 The Hunter Group, Inc. Lease Agreement March 19, 1997
- ------------------------------------------------------------------------------------------------------------------------
Floors 39-44 Hyatt Corporation Lease Agreement August 4, 1983
First Amendment August 4, 1983
Sign Amendment January 22, 1985
- ------------------------------------------------------------------------------------------------------------------------
3000 Exapansion Amendment May 25, 1988
Letter Agreement February 11, 1998
- ------------------------------------------------------------------------------------------------------------------------
2900 Second Expansion Amendment October, 1998
- ------------------------------------------------------------------------------------------------------------------------
2700 Third Expansion Amendment May 20, 1998
- ------------------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
MADISON PLAZA LEASE FILE AUDIT
27-Jun-98
10:08 AM
SUITE TENANT DOCUMENT DOCUMENT DATE
<S> <C> <C> <C>
- ---------------------------------------------------------------------------------------------------------------------------
510 Innovative Network Solutions Corp. Lease Agreement June 1, 1996
Parking Agreement January 2, 1996
- ---------------------------------------------------------------------------------------------------------------------------
Lobby Karad Drug Company, Inc. Lease Agreement March 27, 1997
- ---------------------------------------------------------------------------------------------------------------------------
1970 Kelley, Drye, & Warren Lease Agreement February 28, 1995
First Amendment April 24, 1998
- ---------------------------------------------------------------------------------------------------------------------------
475 Lisa A. Kotrba/DBA Lisa Kotrba & Assoc. Ltd. Lease Agreement February 27, 1996
- ---------------------------------------------------------------------------------------------------------------------------
490 Lake Shore Asset Management Lease Agreement January 17, 1997
- ---------------------------------------------------------------------------------------------------------------------------
2200 Lazard Freres & Co. Lease Agreement March 31, 1993
Lazard Freres & Co. First Amendment March 28, 1997
Second Amendment August 20, 1997
Assignment of Parking February 20, 1998
- ---------------------------------------------------------------------------------------------------------------------------
2780 LSV Asset Management Lease Agreement January 1, 2698
- ---------------------------------------------------------------------------------------------------------------------------
2120 Law Offices of Kurt D. Lloyd Lease Agreement November 11, 1996
- ---------------------------------------------------------------------------------------------------------------------------
Lobby Madison Group Lease Agreement June 13, 1984
d/b/a Lloyd's Restaurant Lease Amendment June 13, 1984
Second Amendment April 1, 1993
- ---------------------------------------------------------------------------------------------------------------------------
760 Mantiss Information Group Lease Agreement January 29, 1998
- ---------------------------------------------------------------------------------------------------------------------------
1860 Metropolitan Fiber Systems of Chicago, Inc. Lease Agreement January 15, 1992
First Amendment January 1, 1997
- ---------------------------------------------------------------------------------------------------------------------------
410 Mercantile Capital Markets Lease Agreement April 3, 1996
First Amendment December 18, 1996
Second Amendment December 12, 1997
- ---------------------------------------------------------------------------------------------------------------------------
2420 MG Metals Corp. Lease Agreement July 17, 1992
First Amendment November 1, 1995
- ---------------------------------------------------------------------------------------------------------------------------
3630 Midwest Mortgage Management Co. Lease Agreement May 31, 1996
First Amendment May 20, 1997
- ---------------------------------------------------------------------------------------------------------------------------
2050 Miglin-Beitler Management Corp. Lease Agreement December 28, 1987
First Amendment February 28, 1991
Second Amendment July 1, 1994
- ---------------------------------------------------------------------------------------------------------------------------
2700 Moran & Company Lease Agreement September 13, 1985
First Amendment September 13, 1985
Second Amendment July 27, 1990
Third Amendment June 12, 1992
- ---------------------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
MADISON PLAZA LEASE FILE AUDIT
27-Jun-98
10:08 AM
SUITE TENANT DOCUMENT DOCUMENT DATE
- ------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Parking Agreement January 7, 1993
- -------------------------------------------------------------------------------------------------------------------------
14-16 National Futures Association Lease Agreement August 30, 1982
First Amendment August 30, 1982
Option Amendment July 25, 1983
Second Option Amendment June 27, 1984
Second Amendment May 6, 1991
Third Amendment May 31, 1996
- -------------------------------------------------------------------------------------------------------------------------
2805 O'Brien-Frietzberg, Inc. Lease Agreement May 6, 1993
Storage Agreement September 9, 1993
First Amendment January 5, 1996
Second Amendment January 31, 1997
- -------------------------------------------------------------------------------------------------------------------------
1300 Office of Thrift Supervision Lease Agreement March 29, 1995
First Amendment March 30, 1998
- -------------------------------------------------------------------------------------------------------------------------
630 Pacific Advisory Services, Inc. Lease Agreement February 22, 1994
- -------------------------------------------------------------------------------------------------------------------------
420 Price & Associates, Inc. Lease Agreement December 8, 1995
Pritzker & Pritzker Lease Agreement January 27, 1982
Lease Amendment January 27, 1982
- -------------------------------------------------------------------------------------------------------------------------
Floors 37 & 38 Lease Assignment July 31, 1986
Letter Agreement November 1986
Agreement November 17, 1988
- -------------------------------------------------------------------------------------------------------------------------
2240 Second Amendment March 20, 1998
Third Amendment February 1, 1993
Fourth Amendment April 8, 1994
- -------------------------------------------------------------------------------------------------------------------------
36th Fifth Amendment August 1, 1994
- -------------------------------------------------------------------------------------------------------------------------
2240 Sixth Amendment December 19, 1995
- -------------------------------------------------------------------------------------------------------------------------
34th Seventh Amendment March 20, 1996
- -------------------------------------------------------------------------------------------------------------------------
Floors 34, 37, 38 Eighth Amendment September 16, 1996
- -------------------------------------------------------------------------------------------------------------------------
3700 Ninth Amendment February 28, 1997
- -------------------------------------------------------------------------------------------------------------------------
Floors 34 * 37 Tenth Amendment March 14, 1997
- -------------------------------------------------------------------------------------------------------------------------
36th Eleventh Amendment April 30, 1997
Parking Agreement July 16, 1997
- -------------------------------------------------------------------------------------------------------------------------
36th Twelfth Amendment September 5, 1997
- -------------------------------------------------------------------------------------------------------------------------
36th Thirteenth Amendment October 28, 1997
- -------------------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
MADISON PLAZA LEASE FILE AUDIT
27-Jun-98
10:08 AM
SUITE TENANT DOCUMENT DOCUMENT DATE
- --------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Parking Agreement March 1, 1995
Parking Assignment February 20, 1998
- --------------------------------------------------------------------------------------------------------------------------
400 Professional Market Brokerage, Inc. Lease Agreement January 15, 1997
- --------------------------------------------------------------------------------------------------------------------------
1940 Project Management Associates, Inc. Lease Agreement September 12, 1995
First Amendment May 29, 1998
- --------------------------------------------------------------------------------------------------------------------------
2810 Protocol International, Inc. Lease Agreement June 5, 1997
- --------------------------------------------------------------------------------------------------------------------------
300 Publishers Credit Services, Inc. Lease Agreement March 30, 1998
- --------------------------------------------------------------------------------------------------------------------------
505 RBZ/dba Levin & Greenfield Lease Agreement February 15, 1996
- --------------------------------------------------------------------------------------------------------------------------
3450 Renaissance Capital Group, Inc. Lease Agreement July 11, 1995
- --------------------------------------------------------------------------------------------------------------------------
500 Risch Darlington Associates, Inc. Lease Agreement April 30, 1994
Amendment May 13, 1997
- --------------------------------------------------------------------------------------------------------------------------
3660 River West Consultants Lease Agreement September 24, 1993
Lease Amendment September 2, 1997
- --------------------------------------------------------------------------------------------------------------------------
770 Robbins & Associates Lease Agreement May 23, 1994
First Amendment September 24, 1996
Second Amendment November 15, 1996
- --------------------------------------------------------------------------------------------------------------------------
685 Robbins & Robins, Ltd. Lease Agreement November 24, 1992
- --------------------------------------------------------------------------------------------------------------------------
450 Rub, Peter M. Lease Agreement April 26, 1996
- --------------------------------------------------------------------------------------------------------------------------
3640 Ryan Beck & Co. Lease Agreement May 5, 1997
- --------------------------------------------------------------------------------------------------------------------------
1900 SCA Consulting Lease Agreement August 31, 1996
- --------------------------------------------------------------------------------------------------------------------------
2150 SLP Infoware Lease Agreement October 28, 1996
First Amendment November 1, 1996
- --------------------------------------------------------------------------------------------------------------------------
1975 Sato Travel Lease Agreement February 1, 1995
Parking Agreement December 29, 1995
Shared Technology Fairchild Telecom Lease Agreement September 1, 1996
- --------------------------------------------------------------------------------------------------------------------------
2110 Smith Hanley Associates Lease Agreement June 6, 1996
- --------------------------------------------------------------------------------------------------------------------------
2600 Sprint Communications Co., LLP Lease Agreement August 20, 1984
Lease Amendment August 20, 1984
Second Amendment September 27, 1989
Third Amendment February 1, 1994
- --------------------------------------------------------------------------------------------------------------------------
2260 Sullivan, Cotter & Associates, Inc. Lease Agreement March 13, 1992
First Amendment May 1, 1994
Second Amendment February 28, 1997
- --------------------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
MADISON PLAZA LEASE FILE AUDIT
27-Jun-98
10:08 AM
SUITE TENANT DOCUMENT DOCUMENT DATE
- ---------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
31-34 Towers Perrin, Inc. Lease Agreement August 30, 1994
Letter Agreement September 27, 1996
First Amendment October 1, 1996
Second Amendment January 6, 1997
Third Amendment September 29, 1997
Fourth Amendment June 1998
- ---------------------------------------------------------------------------------------------------------------------------
590 Trust Consultants, Inc. Lease Agreement October 24, 1997
- ---------------------------------------------------------------------------------------------------------------------------
440 Turner, Phillip A. Lease Agreement March 1, 1996
- ---------------------------------------------------------------------------------------------------------------------------
Lobby United Airlines, Inc. Lease Agreement November 1, 1996
- ---------------------------------------------------------------------------------------------------------------------------
620 Urlaub, Bowen & Associates, Inc. Lease Agreement August 13, 1992
- ---------------------------------------------------------------------------------------------------------------------------
200 Vela Insurance Services, Inc. Lease Agreement June 24, 1996
Parking Agreement July 9, 1996
- ---------------------------------------------------------------------------------------------------------------------------
2210 Verio Midwest, Inc. Lease Agreement September 30, 1997
- ---------------------------------------------------------------------------------------------------------------------------
480 Wong & Knowles, C.P.A., P.C. Lease Agreement February 23, 1996
- ---------------------------------------------------------------------------------------------------------------------------
7 Zell Partners, Ltd. Lease Agreement August 12, 1996
- ---------------------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
Exhibit 1. 1 (e)
----------------
OPERATING AGREEMENTS SCHEDULE
<PAGE>
MADISON PLAZA
SERVICE CONTRACTS
<TABLE>
<CAPTION>
- -------------------------------------------------------------------------------------------------------------------------
CONTRACT MP DATE
TYPE OF WORK CONTRACTOR TERM AMOUNT AG BLD REMARKS
- -------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
Building Siebe UNDER WARRANTY No 3/97 System still under warranty
Automation System 950 Business Contract will be made in
Center Drive fall 1998.
Mount Prospect, IL
60056
Phone: 847.803.2345
Fax: 847.803.2898
- -------------------------------------------------------------------------------------------------------------------------
Chiller Carrier Corporation 8/1/95-7/31/98 Cost:
Maintenance 8350 Madison Street Renewal: =$3,604/month Yes * Contract is Madison
Suite 5 M-T-M Plaza's Continuing
Burr Ridge, IL Cancellation Service Agreement.
60521 Option: *Contractor is the
Contact: Hank Witek Cancellation manufacturer of the
Phone: 630.986.4265 w/cause, equipment. We are
Fax: 630.986.4271 30 days prior reviewing our option
written notice. relating to CFCs and this
notice. contract will be reviewed
at that time.
- -------------------------------------------------------------------------------------------------------------------------
Elevator Otis Elevator 3/1/95-2/28/00 Cost:
Maintenance Company Renewal: =$26,036/month No 1/95 *Contract is Otis'
700 S. Clinton auto one year (paid quarterly) Extended Term
Chicago, IL 60607 renewals Coverage with Madison
Contact: Scott Cancellation Plaza's
McGuire Option: Maintenance Agreement as an
Phone: 312.454.1616 60 days written Addendum.
Fax: 312.939.5624 notice prior to
end of term, or 15
days notice with
cause.
- -------------------------------------------------------------------------------------------------------------------------
Elevator Package Siebe 8/1/94-7/31/95 Cost:
Units 950 Business Renewal: =$2,001 quarterly Yes 7/94 Contract is Madison
Center Dr. M-T-M Plaza's Continuing
Mount Prospect, IL Cancellation Service Agreement.
60056 Option:
Contact: Ralph Cancellable w/10 Seven days prior written
Pfiefer days prior notice in event
Phone: 708.803.2345 written notice. a sale.
Fax: 708.803.2898
- -------------------------------------------------------------------------------------------------------------------------
Copier (Lease) Modern Business 3/4/96-3/3/99 Cost:
Systems Renewal: $408.94 monthly No 3/96
P.O. Box 1144 None
Jefferson City, MO Cancellation
65102 Option:
Contact: Sheri None
Daneshmand
Phone: 314.634.1800
- -------------------------------------------------------------------------------------------------------------------------
Fax Machine Danka Omnifax 2/1/96-present Cost:
(Maintenance) 1105 Remington Road Renewal: $252.00/annum No 2/96
Schaumburg, IL M-T-M
60173 Cancellation
Contact: Doug Option:
Taylor Cancellable w/30
days prior written
notice.
- -------------------------------------------------------------------------------------------------------------------------
Fire/Life Safety Securitylink from 1/1/94-12/31/99 Cost:
Equip. Ameritech Renewal: =$582.32 No 12/93 Due to the sensitive
Monitoring 7280 W. Devon Ave. 5-year term quarterly nature of this contra
Chicago, IL 60631 unless we we are using the
Contact: Thomas notify vendor contractor's form.
Warha w/in 30 days
Phone: 773.775.8600 of the term exp.
Fax: 773.775.6869 Cancellation
Option:
None
- -------------------------------------------------------------------------------------------------------------------------
Fire/Life Safety Edwards 10/1/95-9/30/96 Cost:
Equip. 18W 100 22nd St. Renewal: =$8,500 annually Yes 10/95 New contract to comply
Testing Suite 102 M-T-M $708.33/month with City code.
Oak Brook Terrace, Cancellation
IL 60181 Option:
Contact: Tom Lai Cancellable w/30 Seven day termination in
Phone: 800.873.3392 days prior event of sale.
Fax: 708.916.1289 written notice.
- -------------------------------------------------------------------------------------------------------------------------
HVAC-Pneumatic Siebe 1/12/90-MTM Cost:
Control 950 Business Renewal: =$3,250 quarterly No 7/94 New contract in process to
Center Dr. M-T-M cover new
Mount Prospect, IL Cancellation building automation system.
60056 Option:
Contact: Brad Smith Cancellable w/60
Phone: 708.803.2345 days prior
Fax: 708.803.2898 written notice
- -------------------------------------------------------------------------------------------------------------------------
Janitorial Lakeside Building 12/9/96-12/8/97 Cost:
Services Maint. Renewal: =contractor's Yes 10/96 Contract includes labor +
155 N. Wacker Dr. M-T-M cost plus payroll costs. Maintenance
Chicago, IL 60606 Cancellation $3,000/mo. Fee and supply of equipment
Contact : Nick Option: and tenant services to be
Baker Cancellable w/10 billed through the
Phone: 312.541.0050 days prior building.
Fax: 312.541.0307 written notice
during MTM term.
- -------------------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
MADISON PLAZA
SERVICE CONTRACTS
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------
CONTRACT MP DATE
TYPE OF WORK CONTRACTOR TERM AMOUNT AG BLD REMARKS
- ------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
Landscaping The Brickman Group 4/15/98-10/15/98 Cost:
Exterior 2745 N. Elston Ave. Renewal: =$2,150/year Yes 11/97 Contract is Madison
Chicago, IL 60647 M-T-M Plaza's Continuing
Contact: Doug Cancellation Service Agreement.
Krause Option:
Phone: 773.252.7980 Cancellable w/30
Fax: 773.252.8026 days prior
written notice.
- ------------------------------------------------------------------------------------------------------------------------
Landscaping Rentokil 4/29/98-4/30/99 Yes 1/97 Contract is Madison
Interior 203 N. Wabash, #400 Renewal: Plaza's Continuing
Chicago, IL M-T-M Lobby & OOB: Service Agreement.
60601-2410 Cancellation =$1084.89/month
Contact: Jill Option: AWAITING FINAL EXECUTION OF
Veech Cancellable w/30 AGREEMENT.
Phone: 312-704-2100 days prior
Fax: 312-782-0356 written notice.
- ------------------------------------------------------------------------------------------------------------------------
Metal Maintenance Program Metal 6/1/97-5/31/2000 Cost:
Maintenance Renewal: $601.84/month Yes 4/98 Contract is Madison
2850 W. Fulton M-T-M extra services Plaza's Continuing
Chicago, IL Cancellation billed Service Agreement.
60612-1706 Option: at $36/hour
Contact: Al Cancellable w/30
Schlegel days prior
Phone: 773-533-5100 written notice.
Fax: 773-533-3088
- ------------------------------------------------------------------------------------------------------------------------
Mobile Phone Cellular One 9/30/96-9/29/98 Cost:
Area Wide Cellular Renewal: $11.75 + charges No 9/96
930 National M-T-M based
Parkway Cancellation on usage.
Schaumburg, IL Option:
60173 None.
Phone: 800.CELLONE
- ------------------------------------------------------------------------------------------------------------------------
Pagers Paging Network of 4/4/97-1/26/97 Cost:
Illinois Renewal: $100.50 monthly No n/a
3 Westbrook M-T-M
Corporate Ctr. Cancellation
Suite 300 Option:
Westchester, IL Yes, after
60154 expiration date.
Phone: 708.409.1100
- ------------------------------------------------------------------------------------------------------------------------
Pay Phone Sprint/PublicFON 1/27/97-1/26/97 Cost:
P.O. Box 569700 Renewal: LL to receive No 1/97
Dallas, Texas 75356 Auto one year commissions on
Phone: 800-326-2580 terms. pay
Cancellation phone.
Option:
30 days prior to
end of term.
- ------------------------------------------------------------------------------------------------------------------------
Pest Control C&C Pest Control 9/15/96-9/14/97 Cost:
348 E. North Ave. Renewal: $1,950/year Yes 8/96 Contractor sprays every 14
Northlake, IL 60164 M-T-M days on W/F
Contact: Tom Cancellation Tenant minimum is $25 per
Martinico Option: call
Phone: 708.562.3535 Cancellable w/10
Fax: 708.562.3755 days prior
written notice
during MTM term.
- ------------------------------------------------------------------------------------------------------------------------
Postage Meter Pitney & Bowes 11/1/96-4/30/01 Cost:
201 Merritt Seven Renewal: $327 per quarter No n/a
Norwalk, CT 06856 None
Contact: S.J. Cancellation
Bellofatto Option:
Phone: 800.451.0412 None
- ------------------------------------------------------------------------------------------------------------------------
Portable Radios United Radio 5/1/95-present Cost:
Comm., Inc. Renewal: =$363.60 Yes 5/95
317 West Illinois M-T-M quarterly
St. Ste. A Cancellation Equipment:
St. Charles, IL Option: 21 Motorola
60174 Cancellable w/30 radios.
Contact: Gary Kuzel days prior 3 GE radios.
Phone: 708.430.5800 written notice. Repeater &
Fax: 708.233.5820 chargers
on T&M basis.
- ------------------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
MADISON PLAZA
SERVICE CONTRACTS
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------
CONTRACT MP DATE
TYPE OF WORK CONTRACTOR TERM AMOUNT AG BLD REMARKS
- ------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
Security Cameras Phoenix Systems &
Service SECURITY CAMERAS ARE
722 Foster Avenue CURRENTLY UNDER WARRANTY.
Bensenville, IL NEGOTIATING SERVICE
60106 CONTRACT FOR NEW AND
Contact: Ken Rupp EXISTING EQUIP.
Phone: 630.860.9501
Fax: 630.860.8905
- ------------------------------------------------------------------------------------------------------------------------
Security Card Phoenix Systems 5/1/97-4/30/98
Access 722 Foster Ave. Renewal: Cost:
Bensenville, IL M-T-M $8,500 annually, Yes Madison Plaza Continuing
60106 Cancellation $2,125/qtr. Service
Contact: Ken Rupp Option: Agreement
Phone: 630.860.9501 10 days written
Fax: 630.860.8905 notice during
MTM term.
- ------------------------------------------------------------------------------------------------------------------------
Security Guards The Kane Service 4/23/92-4/22/93
6325 N. Avondale Renewal: Cost:
Corporate Chicago, IL 60631 M-T-M Varies by No 3/92 Contract is a corporate
Agreement Contact: Mark Baker Cancellation officer but agreement
Phone: 312.775.1118 Option: approximately Through Miglin-Beitler.
Fax: 312.775.3526 Cancellable w/30 $3,500
days prior per week.
written notice. Five full-time
guards.
- ------------------------------------------------------------------------------------------------------------------------
Riser Maintenance Facilities Mgmt. 9/1/96-8/31/97
Co. Renewal: Cost:
26 N. Hillside Ave. MTM One time fee of Yes 7/96 Actual service began
Hillside, IL 60162 Cancellation: $4,000 9/16/96.
Contact: Mike Cancellable w/30 No annual maint. Hourly billing at $48/hr.
Curtin Jr. days prior Fees for as long
Phone: 708/449-2201 written notice. FMC provides svc
Fax: 708/449-2608 to the building.
- ------------------------------------------------------------------------------------------------------------------------
Telecommunications Fairchild Telecom 9/1/96-8/31/01 License Agreement between
Shared Tenant 300 West Service Renewal: Cost: Building
Services Road As agreed $1,000/monthly and Shared
Chantilly, Cancellation: Technologies/Fairchild to
Virginia 22021 Only upon default provide shared telephone
facilities for
Metropolitan Fiber tenants of 200 West
Systems Madison.
One Tower Lane,
Suite 1600 Telecommunications Services
Oakbrook Terrace, Agreement between
IL 60181 Fairchild Comm.
and Metropolitan Fiber
Systems to
provide fiber-optics.
- ------------------------------------------------------------------------------------------------------------------------
Telephones Fairchild Telecom 10/28/91-present
300 W. Service Road Renewal: Cost: No 8/91
PO Box 10804 MTM Varies upon
Chantilly, VA 22021 Cancellation: usages and
Contact: Stuart Anytime distances.
Meister
Phone: 800.800.7466
- ------------------------------------------------------------------------------------------------------------------------
Uniform Rental A.W. Zengler 4/28/97-4/27/98
5427 N. Broadway Renewal: Cost: Yes Contract is Madison
Chicago, IL MTM $79.05/biweekly Plaza's Continuing
60640-1799 Cancellation Service Agreement.
Contact: Larry Option:
Kulik Cancellable w/10
Phone: 312.561.1000 days prior
Fax: 312.561.2542 written notice
during MTM term.
- ------------------------------------------------------------------------------------------------------------------------
Waste BFI/Hoving & Sons 4/22/96-4/21/97 Compactor rental: Yes 4/95 Contract is Madison
Removal/Recycling 1152 West Carroll Renewal: =$135.00/month Plaza's Continuing
Chicago, IL 60607 M-T-M Compactor pulls: Service Agreement.
Contact: David Cancellation =$70.00 each
DeRousse Option: 30 yard roll-off:
Phone: 312.738.5850 Cancellable w/10 =$260.00 each
Phone: 312.829.5758 days prior 25 yard roll-off:
written notice =$210.00 each
during MTM term.
- ------------------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
MADISON PLAZA
SERVICE CONTRACTS
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------------------------------------------------
CONTRACT MG DATE
TYPE OF WORK CONTRACTOR TERM AMOUNT AG BLD REMARKS
- --------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
Window Washing Program Service 3/21/97-3/20/98 Cost:
Exterior Group Renewal: =$12,110/cleaning Yes 3/97 Next year we need to
2850 West Fulton M-T-M 2-44 budget cleaning
Chicago, IL 60612 Cancellation (performed 3x/year) for floors 45 & up twice.
Contact: Tim Trinen Option: =$3,700/cleaning
Phone: 773.533.5100 Cancellable w/10 for 45-up (1x/year) 1st cleaning of 1997
Pager: 773.533.3088 days. Prior =$840/cleaning started 3/24/97
written notice for sloped glass
during MTM term. (3x/year) Madison Plaza's Continuing
Service Agreement.
- --------------------------------------------------------------------------------------------------------------------------
Window Washing Corporate Cleaning 4/3/97-4/2/98
Interior glass Svcs. Renewal: Cost: Yes 3/97 Next year we need to
(Including 21 W. Elm St. M-T-M =$4,200/cleaning budget washing
interior and Chicago, IL 60610 Cancellation =$450.00/quarterly the interior of the
exterior of Lobby) Contact: Neal Option: (lobby windows) windows twice.
Zucker Cancellable w/10 -$300.00/9 months
Phone: 312.573.3333 days prior (high plates) Madison Plaza's Continuing
Fax: 312.573.5730 written notice Service
during MTM term. Agreement.
- --------------------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
Exhibit 4.6(d)(i)
TENANT ESTOPPEL FORM
Overseas Partners Capital Corp. TENANT ESTOPPEL FORM
Overseas Partners Capital Corp. Madison Plaza Venture
115 Perimeter Center Place 455 N. Cityfront Plaza Drive
Suite 940 Suite 3200
Atlanta, Georgia 30346 Chicago, Illinois 60611
Re: Lease dated _________ , 199_ (the "Lease") between Cole Taylor Bank, as
Trustee under Trust No. 40649 ("Landlord"), and _________________________
("Tenant")
Gentlemen:
The undersigned Tenant understands that Overseas Partners Capital Corp. or
its assigns intend to acquire from Madison Plaza Venture ("Seller") the property
located at 200 West Madison Street, Chicago, Illinois (the "Property"). 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 attached.
C. Tenant has not given Landlord written notice of any dispute between Landlord
and Tenant and, to Tenant's knowledge, no dispute or circumstances which
would serve as a basis for any dispute exists. To the best of Tenant's
knowledge, Landlord is not in default under the Lease.
D. Except as may be set forth below, (i) Tenant does not claim any offsets or
credits against rents payable under the Lease, (ii) there are no unused
tenant allowances due or to become due from Landlord under the Lease, and
(iii) no reimbursements are currently due from Landlord: ______
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__
<PAGE>
H. The current monthly base rent payable under the Lease is $________. The
monthly installment of Rent Adjustment Deposit currently being paid is
$________.
I. The term of the Lease expires on ____________________, and the Tenant
has no options to renew or extend the term of the Lease except as expressly
provided in the Lease.
J. Landlord has completed all improvements to the Premises required under the
terms of the Lease to be performed by Landlord as of the date hereof.
K. The rentable square footage of the Premises, as provided in the Lease, is
________ square feet.
Tenant makes the above statements for the benefit and protection of Seller
and Overseas Partners Capital Corp., and its successors and assigns and the
mortgagees thereof (collectively, the "Purchaser Parties") with the intent and
understanding that they will be relied upon by Seller and the Purchaser Parties.
Dated:
-------------------------
TENANT:
-----------------------
<PAGE>
Exhibit 4.6(d)(ii)
------------------
SELLER ESTOPPEL FORM
Overseas Partners Capital Corp.
115 Perimeter Center Place
Suite 940
Atlanta, Georgia 30346
Re: Lease dated ________, 199_ (the "Lease") between Cole Taylor Bank, as
Trustee under Trust No. 40649 ("Landlord"), and _______________
("Tenant"), for those premises known as Suite _____ ("Premises") located
at 200 West Madison Street, Chicago, Illinois (the "Property")
Gentlemen:
In connection with your acquisition of the Property pursuant to that
certain Purchase and Sale Agreement dated as of ______, 1998 (the
"Agreement") between Madison Plaza Venture ("Seller") and Overseas Partners
Capital Corp. ("Purchaser"), the undersigned does hereby warrant 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 attached:
C. Seller has not received written notice of any dispute between Landlord and
I Tenant, and to Seller's knowledge, no dispute or circumstances which
would serve as a basis for any dispute exists.
D. Landlord is not in default under the Lease. Except as may be set forth
below, (i) Tenant does not claim any offsets or credits against rents
payable under the Lease, (ii) there are no unused tenant allowances due or
to become due from Landlord to Tenant under the Lease, and (iii) no
reimbursements are currently due from Landlord to Tenant except:
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 _______________.
<PAGE>
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 $_________. The
monthly installment of Rent Adjustment Deposit currently being paid is
$__________.
I. The term of the Lease expires on _______________, and the Tenant has no
options to renew or extend the term of the Lease except as expressly
provided in the Lease.
J. Landlord has completed all improvements to the Premises required under the
terms of the Lease to be performed by Landlord as of the date hereof.
K. The rentable square footage of the Premises, as provided in this Lease, is
________ square feet.
References to the "knowledge" of Seller shall have the meaning specified in
the Agreement.
The warranties 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) one year after 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. The
warranties herein made shall not be subject to any limitations on the amount of
claims or damages which can be claimed or collected as a result of the
inaccuracy of any statement herein, including without limitation, any
requirement that claims aggregate a minimum amount before any claim can be
actionable.
Dated: .
-----------------
SELLER:
MADISON PLAZA VENTURE, an Illinois general
partnership
By: MW Associates, an Illinois general partnership,
its Managing Venturer
By: The Equitable Life Assurance Society of the
United States, its managing venturer
By:
Name:
Title:
<PAGE>
Exhibit 5. 1 (c)
----------------
LEASE EXCEPTIONS
1. See attached rent delinquency report.
<PAGE>
<TABLE>
<CAPTION>
AGED DELINQUENT AND PREPAID BALANCES
EQUITABLE REAL ESTATE MGMT.
- ----------------------------------------------------------------------------------------------------------------------------
Invoice Date Category Source Amount Current 30 60 90 120
- ----------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
269301-0002 000002 UNITED PARCEL SERVICE, INC. Occupied Day Due: 1 Delq. Day: 0
DAVE SMACIARZ 0002 Last Payment: 10/28/97 900.00
(312) 990-2900
- ----------------------------------------------------------------------------------------------------------------------------
01/01/97 BR Base Rent CH 50.00 50.00
AUTOCHRG
11/01/97 BR Base Rent CH 100.00 100.00
AUTOCHRG
12/01/97 BR Base Rent CH 100.00 100.00
AUTOCHRG
01/01/98 BR Base Rent CH 100.00 100.00
AUTOCHRG
02/01/98 BR Base Rent CH 100.00 100.00
AUTOCHRG
03/01/98 BR Base Rent CH 100.00 100.00
AUTOCHRG
04/01/98 BR Base Rent CH 100.00 100.00
AUTOCHRG
05/01/98 BR Base Rent CH 100.00 100.00
AUTOCHRG
06/01/98 BR Base Rent CH 100.00 100.00
AUTOCHRG
Total: 850.00 100.00 100.00 100.00 100.00 450.00
- ----------------------------------------------------------------------------------------------------------------------------
269301-0003 000119 AIRBORNE EXPRESS Occupied Day Due: 1 Delq. Day: 0
0003 Last Payment: 01/05/98 400.00
- ----------------------------------------------------------------------------------------------------------------------------
01/01/98 BR Base Rent CH 400.00 400.00
97-98 ANNU
Total: 400.00 0.00 0.00 0.00 0.00 400.00
- ----------------------------------------------------------------------------------------------------------------------------
269301-0125 000181 KARAD DRUG COMPANY, INC. Occupied Day Due: 1 Delq. Day: 0
ROGER RADEKE 0125 Last Payment: 06/12/98 2,926.83
(312) 977-0330
- ----------------------------------------------------------------------------------------------------------------------------
06/12/98 MNO Misc. Non- CR 1,458.83CR 1,458.83CR
UNALLOCATE
Total: 1,458.83CR 1,458.83CR 0.00 0.00 0.00 0.00
- ----------------------------------------------------------------------------------------------------------------------------
269301-0130 000006 UNITED AIRLINES, INC. Occupied Day Due: 1 Delq. Day: 0
JIM KRAUSER 0130 Last Payment: 06/19/98 17.90
(312) 294-4890
- ----------------------------------------------------------------------------------------------------------------------------
06/01/98 OC Escal-Op E CH 603.68 603.68
AUTOCHRG
Total: 603.68 603.68 0.00 0.00 0.00 0.00
- ----------------------------------------------------------------------------------------------------------------------------
269301-0520 000165 ADECCO EMPLOYMENT SERVICES Occupied Day Due: 1 Delq. Day: 0
R.E. ACCOUNTS PAYABLE 0520 Last Payment: 06/20/98 12.17
- ----------------------------------------------------------------------------------------------------------------------------
03/05/98 MNO Misc. Non- CR 170.61CR 170.61CR
UNALLOCATE
Total: 170.61CR 0.00 0.00 0.00 170.61CR 0.00
- ----------------------------------------------------------------------------------------------------------------------------
269301-0590 000195 DELAWARE CHARTER/TRUST Occupied Day Due: 1 Delq. Day: 0
CONSULT 0590 Last Payment: 06/23/98 4,323.75
- ----------------------------------------------------------------------------------------------------------------------------
03/01/98 OC Escal-Op CH 2,008.28 2,008.28
AUTOCHRG
03/01/98 RC Esc-RE Tax CH 540.49 540.49
AUTOCHRG
03/01/98 SVC Service re CH 15.00 15.00
WORKORDER
06/23/98 MNO Misc. Non- CR 2,470.62CR 2,470.62CR
UNALLOCATE
Total: 93.15 2,470.62CR 0.00 0.00 2,563.77 0.00
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
AGED DELINQUENT AND PREPAID BALANCES
EQUITABLE REAL ESTATE MGMT.
============================================================================================================================
Invoice Date Category Source Amount Current 30 60 90 120
- ----------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
269301-0700 000188 COLUMN FINANCIAL INC. Occupied Day Due: 1 Delq. Day: 0
JENNIFER JOHNSON 0700 Last Payment: 06/20/98 6,317.43
- ----------------------------------------------------------------------------------------------------------------------------
04/28/98 MNO Misc. Non- CR 79,559.01CR 79,559.01CR 0.00
UNALLOCATE
Total: 79,559.01CR 0.00 0.00 79,559.01CR 0.00 0.00
- ----------------------------------------------------------------------------------------------------------------------------
269301-0800 000015 THE HARTFORD INSURANCE Occupied Day Due: 1 Delq. Day: 0
LAURAN CLOGSTON 0800 Last Payment: 05/29/98 239,330.44
(203) 547-2891
- ----------------------------------------------------------------------------------------------------------------------------
01/30/98 MNO Misc. Non- CR 5,077.93CR 5,077.93CR
UNALLOCATE
02/27/98 MNO Misc. Non- CR 59,911.81CR 59,911.81CR
UNALLOCATE
03/31/98 MNO Misc. Non- CR 5,940.43CR 5,940.43CR
UNALLOCATE
04/29/98 MNO Misc. Non- CR 447.56CR 447.56CR
UNALLOCATE
05/29/98 MNO Misc. Non- CR 241.56CR 241.56CR
UNALLOCATE
Total: 71,619.29CR 0.00 241.56CR 447.56CR 5,940.43CR 64,989.74CR
- ----------------------------------------------------------------------------------------------------------------------------
269301-1020 000197 BEAR STEARNS & CO. Occupied Day Due: 1 Delq. Day: 0
1020 Last Payment: 06/19/98 295.80
- ----------------------------------------------------------------------------------------------------------------------------
03/31/98 SVC Service re CH 360.00 360.00
WORKORDER
03/31/98 SVC Service re CH 190.00 190.00
WORKORDER
05/01/98 BR Base Rent CH 5,760.45 5,760.45
AUTOCHRG
05/01/98 OC Escal -Op E CH 5,471.49 5,471.49
05/01/98 RC Esc - RE Tax CH 7,605.14 7,605.14
05/01/98 SVC Service re CH 930.64 930.64
WORKORDERS
06/01/98 BR Base Rent CH 6,056.25 6,056.25
AUTOCHRG
06/01/98 SVC Service re CH 18.00 18.00
WORKORDERS
06/01/98 SVC Service re CH 16.00 16.00
WORKORDERS
06/01/98 SVC Service re CH 15.00 15.00
WORKORDERS
06/01/98 SVC Service re CH 15.00 15.00
WORKORDERS
06/01/98 SVC Service re CH 89.70 89.70
WORKORDERS
06/01/98 SVC Service re CH 89.70 89.70
WORKORDERS
06/01/98 SVC Service re CH 10.00 10.00
WORKORDERS
06/01/98 SVC Service re CH 40.00 40.00
WORKORDERS
06/01/98 SVC Service re CH 30.00 30.00
WORKORDERS
Total: 26,682.37 6,364.65 19,767.72 0.00 550.00 0.00
- ----------------------------------------------------------------------------------------------------------------------------
269301-1300 000145 OFFICE OF THRIFT SUPERVISION Occupied Day Due: 1 Delq. Day: 0
1300 Last Payment: 06/19/98 100.00
- ----------------------------------------------------------------------------------------------------------------------------
03/15/98 MNO Misc. Non- CR 1.00CR 1.00CR
UNALLOCATE
06/01/98 BR Base Rent CH 39,367.05 39,367.05
AUTOCHRG
06/01/98 SRC Cleaning - B CH 25.00 25.00
AUTOCHRG
Tota:l: 39,391.05 39,392.05 0.00 0.00 1.00CR 0.00
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
AGED DELINQUENT AND PREPAID BALANCES
EQUITABLE REAL ESTATE MGMT.
============================================================================================================================
Invoice Date Category Source Amount Current 30 60 90 120
- ----------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
269301-1600 000018 NATIONAL FUTURES ASSOCIATION Occupied Day Due: 1 Delq. Day: 0
CANDICE EDWARDS 1600 Last Payment: 06/20/98 20.00
(312) 781-1300
- ----------------------------------------------------------------------------------------------------------------------------
05/23/98 MNO Misc. Non- CR 295.00CR 295.00CR
UNALLOCATE
Total: 295.00CR 0.00 295.00CR 0.00 0.00 0.00
- ----------------------------------------------------------------------------------------------------------------------------
269301-1835 000021 ACCUWORD INTERNATIONAL Occupied Day Due: 1 Delq. Day: 0
KELLY KEELEAN 1835 Last Payment: 06/08/98 4,727.35
(203) 236-2351
- ----------------------------------------------------------------------------------------------------------------------------
06/15/98 BR Base Rent NC 2,422.22CR 2,422.22CR
REMOVE CHA
06/15/98 OC Escal-Op E NC 54.59CR 54.59CR
REMOVE CHA
06/15/98 SA Base Rent NC 50.00CR 50.00CR
REMOVE CHA
Total: 2,526.81CR 2,526.81CR 0.00 0.00 0.00 0.00
- ----------------------------------------------------------------------------------------------------------------------------
269301-1840 000022 FAIRCHILD COMMUNICATIONS Occupied Day Due: 1 Delq. Day: 0
TRACY MILLINCAMP 1840 Last Payment: 06/19/98 4,417.00
(708) 947-7000
- ----------------------------------------------------------------------------------------------------------------------------
04/01/98 MIT Misc Oper CH 591.03 591.03
AUTOCHRG
06/01/98 SVC Service re CH 89.70 89.70
WORKORDERS
06/01/98 SVC Service re CH 305.67 305.67
WORKORDERS
06/01/98 SVC Service re CH 418.60 418.60
WORKORDERS
06/01/98 SVC Service re CH 119.60 119.60
WORKORDERS
06/01/98 SVC Service re CH 301.30 301.30
WORKORDERS
Total: 1,825.90 1,234.87 0.00 591.03 0.00 0.00
- ----------------------------------------------------------------------------------------------------------------------------
269301-1900 000170 SCA CONSULTING Occupied Day Due: 1 Delq. Day: 0
JIM KNIGHT 1900 Last Payment: 06/19/98 10.00
- ----------------------------------------------------------------------------------------------------------------------------
02/23/98 MNO Misc. Non- CR 1,227.06CR 1,227.06CR
UNALLOCATE
03/03/98 MNO Misc. Non- CR 786.92CR 786.92CR
UNALLOCATE
Total: 2,013.98CR 0.00 0.00 0.00 786.92CR 1,227.06CR
- ----------------------------------------------------------------------------------------------------------------------------
269301-1950 000028 ROSENBLUM & SMITH Occupied Day Due: 1 Delq. Day: 0
BRIAN VANDENBERG 1950 Last Payment: 06/23/98 8,650.71
(312) 977-9000
- ----------------------------------------------------------------------------------------------------------------------------
03/01/98 BR Base Rent CH 1,064.92 1,064.92
AUTOCHRG
06/01/98 BR Base Rent CH 10,396.26 10,396.26
AUTOCHRG
06/01/98 SVC Service re CH 10.00 10.00
WORKORDERS
06/01/98 SVC Service re CH 25.00 25.00
WORKORDERS
06/01/98 SVC Service re CH 50.00 50.00
WORKORDERS
06/01/98 SVC Service re CH 45.00 45.00
WORKORDERS
06/23/98 MNO Misc. Non- CR 77.48CR 77.48CR
UNALLOCATE
Total: 11,513.70 10,448.78 0.00 0.00 1,064.92 0.00
- ----------------------------------------------------------------------------------------------------------------------------
269301-1970 000129 KELLEY DRYE & WARREN Occupied Day Due: 1 Delq. Day: 0
JEFFREY M. CROSS 1970 Last Payment: 06/08/98 1,404.88
(312) 346-6350
- ----------------------------------------------------------------------------------------------------------------------------
03/23/98 MNO Misc. Non- CR 0.01CR
0.01CR
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
AGED DELINQUENT AND PREPAID BALANCES
EQUITABLE REAL ESTATE MGMT.
===============================================================================================================================
Invoice Date Category Source Amount Current 30 60 90 120
- -------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
KELLEY DRYE & WARREN Continued:
UNALLOCATE
Total: 0.01CR 0.00 0.00 0.00 0.01CR 0.00
- -------------------------------------------------------------------------------------------------------------------------------
269301-1975 000128 SATO TRAVEL Occupied Day Due: 1 Delq. Day: 0
ROSEMARIE ROSSI 1975 Last Payment: 06/19/98 834.41
703 346-6350
- -------------------------------------------------------------------------------------------------------------------------------
05/01/98 RC Esc RE Tax CH 983.97 983.97
AUTOCHRG
06/01/98 PC Parking In CH 350.00 350.00
AUTOCHRG
Total: 1,333.97 350.00 983.97 0.00 0.00 0.00
- -------------------------------------------------------------------------------------------------------------------------------
269301-2020 000140 OFFICE OF THE BUILDING Occupied Day Due: 1 Delq. Day: 0
2020 Last Payment: 06/19/98 15,980.48
- -------------------------------------------------------------------------------------------------------------------------------
05/01/98 BR Base Rent CH 6,383.20 6,383.20
AUTOCHRG
06/01/98 OC Escal Op E CH 187.68 187.68
AUTOCHRG
Total: 6,570.88 6,570.88 0.00 0.00 0.00 0.00
- -------------------------------------------------------------------------------------------------------------------------------
269301-2060 000122 PRO STAFF PERSONNEL Occupied Day Due: 1 Delq. Day: 0
SERVICES 2060 Last Payment: 02/20/98 11,445.18
- -------------------------------------------------------------------------------------------------------------------------------
11/24/97 MNO Misc. Non- CR 515.77CR 515.77CR
UNALLOCATE
Total 515.77CR 0.00 0.00 0.00 0.00 515.77CR
- -------------------------------------------------------------------------------------------------------------------------------
269301-2100 000137 FMC FOODTECH Occupied Day Due: 1 Delq. Day: 0
CINDY SHIAO 2100 Last Payment: 06/23/98 70,562.17
(312) 861-5715
- -------------------------------------------------------------------------------------------------------------------------------
02/23/98 MNO Misc. Non- CR 5,612.46CR 5,612.46CR
UNALLOCATE
Total: 5,612.46CR 5,612.46CR 0.00 0.00 0.00 0.00
- -------------------------------------------------------------------------------------------------------------------------------
269301-2150 000171 SLP STATISTICS, INC. Occupied Day Due: 1 Delq. Day: 0
GREG SPURRIER 2150 Last Payment: 06/23/98 10,004.74
- -------------------------------------------------------------------------------------------------------------------------------
10/01/97 BR Base Rent CH 1,156.38 1,156.38
AUTOCHRG
10/01/97 OC Escal Op E CH 1,390.15 1,390.15
AUTOCHRG
10/01/97 RC Esc-RE Tax CH 1,886.94 1,886.94
AUTOCHRG
10/01/97 SR Base Rent CH 329.00 329.00
AUTOCHRG
10/01/97 SRC Cleaning B CH 10.00 10.00
WORKORDER
10/01/97 SRC Cleaning B CH 3.00 3.00
WORKORDER
11/01/97 BR Base Rent CH 1,261.50 1,261.50
AUTOCHRG
11/01/97 OC Escal Op E CH 1,390.15 1,390.15
AUTOCHRG
11/01/97 RC Esc-RE Tax CH 1,886.94 1,886.94
AUTOCHRG
11/01/97 SR Base Rent CH 329.00 329.00
AUTOCHRG
11/01/97 SVC Service re CH 35.00 35.00
WORKORDER
02/01/98 BR Base Rent CH 924.92 924.92
AUTOCHRG
06/23/98 MNO Misc. Non- CR 4,994.87CR 4,994.87CR
UNALLOCATE
Total: 5,608.11 4,994.87CR 0.00 0.00 0.00 10,602.98
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
AGED DELINQUENT AND PREPAID BALANCES
EQUITABLE REAL ESTATE MGMT.
===============================================================================================================================
Invoice Date Category Source Amount Current 30 60 90 120
- -------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
269301-2210 000194 VERIO-MIDWEST INC. Occupied Day Due: 1 Delq. Day: 0
2210 Last Payment: 06/23/98 13,667.85
- -------------------------------------------------------------------------------------------------------------------------------
04/27/98 MNO Misc. Non- CR 478.91CR 478.91CR
UNALLOCATE
06/23/98 MNO Misc. Non- CR 20.00CR 20.00CR
UNALLOCATE
Total 498.91CR 20.00CR 0.00 478.91CR 0.00 0.00
- -------------------------------------------------------------------------------------------------------------------------------
269301-2260 000034 SULLIVAN, COTTER, Occupied Day Due: 1 Delq. Day: 0
& ASSOC. 2260 Last Payment: 06/23/98 3,995.98
- -------------------------------------------------------------------------------------------------------------------------------
06/23/98 MNO Misc. Non- CR 3,885.35CR 3,885.35CR
UNALLOCATE
Total: 3,885.35CR 3,885.35CR 0.00 0.00 0.00 0.00
- -------------------------------------------------------------------------------------------------------------------------------
269301-2420 000036 MG. METALS CORPORATION Occupied Day Due: 1 Delq. Day: 0
2420 Last Payment: 06/23/98 3,330.08
- -------------------------------------------------------------------------------------------------------------------------------
03/01/98 SVC Service re CH 758.20 758.20
WORKORDER
Total: 758.20 0.00 0.00 0.00 758.20 0.00
- -------------------------------------------------------------------------------------------------------------------------------
269301-2450 000180 THE HUNTER GROUP, INC. Occupied Day Due: 1 Delq. Day: 0
ACCOUNTS PAYABLE 2450 Last Payment: 06/19/98 2,553.56
(410)576-1515
- -------------------------------------------------------------------------------------------------------------------------------
05/01/98 OC Escal-Op E CH 15.00 15.00
AUTOCHRG
Total: 15.00 0.00 15.00 0.00 0.00 0.00
- -------------------------------------------------------------------------------------------------------------------------------
269301-2600 000039 U.S. SPRINT Occupied Day Due: 1 Delq. Day: 0
SHERRY BURTON 2600 Last Payment: 06/20/98 298.73
(708) 318-3000
- -------------------------------------------------------------------------------------------------------------------------------
03/01/97 MR Esc-Misc/P NC 452.08CR 452.08CR
96 0/E ESC
03/25/97 RR Esc-RE Tax NC 1,690.18CR 1,690.18CR
91 R/E TAX
03/01/98 RC Esc-RE Tax NC 1,939.28CR 1,939.28CR
CIRCUL. TAX
03/01/98 RC Esc-RE Tax NC 1,880.44CR 1,880.44CR
CIRCULATOR
Total: 5,961.98CR 0.00 0.00 0.00 3,819.72CR 2,142.26CR
- -------------------------------------------------------------------------------------------------------------------------------
269301-2610 000121 BARNES & THORNBURG Occupied Day Due: 1 Delq. Day: 0
CLAUDIA SCOTT 2610 Last Payment: 06/19/98 1,564.39
- -------------------------------------------------------------------------------------------------------------------------------
02/25/98 RC Esc-RE Tax CH 120.00 120.00
2/15-2/28
Total: 120.00 0.00 0.00 0.00 0.00 120.00
- -------------------------------------------------------------------------------------------------------------------------------
269301-2670 000134 BENEFITS COMMUNICATION Occupied Day Due: 1 Delq. Day: 0
CORP. 2670 Last Payment: 06/19/98 725.84
NANCY COLE
(312) 419-9030 ext. 108
- -------------------------------------------------------------------------------------------------------------------------------
05/23/98 MNO Misc. Non- CH 302.27CR 302.27CR
UNALLOCATE
Total: 302.27CR 0.00 302.27CR 0.00 0.00 0.00
- -------------------------------------------------------------------------------------------------------------------------------
269301-2720 000044 FPL ADVISORY GROUP CO. Occupied Day Due: 1 Delq. Day: 0
2720 Last Payment: 06/18/98 16,143.58
- -------------------------------------------------------------------------------------------------------------------------------
06/01/98 SVC Services re CH 10.00 10.00
WORKORDERS
06/18/98 MNO Misc. Non- CR 7.00CR 7.00CR
UNALLOCATE
Total: 3.00 3.00 0.00 0.00 0.00 0.00
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
AGED DELINQUENT AND PREPAID BALANCES
EQUITABLE REAL ESTATE MGMT.
===============================================================================================================================
Invoice Date Category Source Amount Current 30 60 90 120
- -------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
269301-2805 000046 O'BRIEN KREITZBERG Occupied Day Due: 1 Delq. Day: 0
2805 Last Payment: 06/19/98 8,178.48
- -------------------------------------------------------------------------------------------------------------------------------
06/02/98 MNO Misc. Non- CR 43.93CR 43.93CR
UNALLOCATE
Total: 43.93CR 43.93CR 0.00 0.00 0.00 0.00
- -------------------------------------------------------------------------------------------------------------------------------
269301-2850 000047 SUSAN E. LOGGANS Occupied Day Due: 1 Delq. Day: 0
& ASSOCIATES 2850 Last Payment: 06/19/98 835.42
SUSAN LOGGANS
- -------------------------------------------------------------------------------------------------------------------------------
06/01/98 BR Base Rent CH 1,374.50 1,374.50
AUTOCHRG
06/01/98 OC Escal-Op E CH 5,651.31 5,651.31
AUTOCHRG
06/01/98 RC Esc-Re Tax CH 7,855.08 7,855.08
AUTOCHRG
06/01/98 SRC Cleaning-B CH 158.00 158.00
AUTOCHRG
06/01/98 SVC Service re CH 30.00 30.00
WORKORDERS
06/01/98 SVC Service re CH 90.00 90.00
WORKORDERS
Total: 15,158.89 15,158.89 0.00 0.00 0.00 0.00
- -------------------------------------------------------------------------------------------------------------------------------
269301-2900 000049 HYATT CORPORATION Occupied Day Due: 1 Delq. Day: 0
RON DEBIASE 2900 Last Payment: 06/30/98 54,067.54
(312) 750-8128
- -------------------------------------------------------------------------------------------------------------------------------
02/25/98 MNO Misc. Non- CR 1,427.84CR 1,427.84CR
UNALLOCATE
Total: 1,427.84CR 0.00 0.00 0.00 0.00 1,427.84CR
- -------------------------------------------------------------------------------------------------------------------------------
269301-3000 000050 HYATT CORPORATION Occupied Day Due: 1 Delq. Day: 0
RON DEBIASE 3000 Last Payment: 06/30/98 42,119.00
(312) 750-8128
- -------------------------------------------------------------------------------------------------------------------------------
02/25/98 MNO Misc. Non- CR 3,629.71CR 3,629.71CR
UNALLOCATE
Total: 3,629.71CR 0.00 0.00 0.00 0.00 3,629.71CR
- -------------------------------------------------------------------------------------------------------------------------------
269301-3300 000102 TOWERS PERRIN Occupied Day Due: 1 Delq. Day: 0
MARIA PILLOT 3300 Last Payment: 06/19/98 1,106.54
(215) 246-3936
- -------------------------------------------------------------------------------------------------------------------------------
04/01/98 RC Esc-RE Tax CH 15,508.75 15,508.75
AUTOCHRG
06/01/98 PC Parking In CH 350.00 350.00
AUTOCHRG
06/01/98 SR Base Rent CH 1,905.00 1,905.00
AUTOCHRG
06/01/98 SRC Cleaning-B CH 1,908.54 1,908.54
AUTOCHRG
06/01/98 SVC Service re CH 160.09 160.00
WORKORDERS
06/01/98 SVC Service re CH 315.00 315.00
WORKORDERS
06/01/98 SVC Service re CH 400.00 400.00
WORKORDERS
06/15/98 BR Base Rent NC 41.50CR 41.50CR
REMOVE CHA
Total: 20,505.88 4,997.13 0.00 15,508.75 0.00 0.00
- -------------------------------------------------------------------------------------------------------------------------------
269301-3440 000153 CENTURA SOFTWARE Occupied Day Due: 1 Delq. Day: 0
CORPORATION 3440 Last Payment: 06/19/98 10.00
ROGER SPIELER
(415) 617-3962
- -------------------------------------------------------------------------------------------------------------------------------
05/01/98 BR Base Rent CH 129.46 129.46
AUTOCHRG
Total: 129.46 0.00 129.46 0.00 0.00 0.00
- -------------------------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
AGED DELINQUENT AND PREPAID BALANCES
EQUITABLE REAL ESTATE MGMT.
===============================================================================================================================
Invoice Date Category Source Amount Current 30 60 90 120
- -------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
269301-3550 000146 DECISIONQUEST, INC. Occupied Day Due: 1 Delq. Day: 0
3550 Last Payment: 06/03/98 5,842.82
- -------------------------------------------------------------------------------------------------------------------------------
06/01/98 SVC Service re CH 30.00 30.00
WORKORDERS
06/01/98 SVC Service re CH 20.00 20.00
WORKORDERS
Total: 50.00 50.00 0.00 0.00 0.00 0.00
- -------------------------------------------------------------------------------------------------------------------------------
269301-3630 000054 MIDWEST MORTGAGE Occupied Day Due: 1 Delq. Day: 0
MANAGEMENT CO 3630 Last Payment: 05/04/98 1,724.13
SCOTT CLEAVE
(312) 407-6999
- -------------------------------------------------------------------------------------------------------------------------------
06/01/98 BR Base Rent CH 1,645.08 1,645.08
AUTOCHRG
06/01/98 OC Escal-Op E CH 20.20 20.20
AUTOCHRG
06/01/98 RC Esc-Re Tax CH 58.85 58.85
AUTOCHRG
Total 1,724.13 1,724.13 0.00 0.00 0.00 0.00
- -------------------------------------------------------------------------------------------------------------------------------
269301-3650 000056 THE BRENNER GROUP Occupied Day Due: 1 Delq. Day: 0
RICHARD HOGAN 3650 Last Payment: 06/23/98 4,837.93
(312) 726-2525
- -------------------------------------------------------------------------------------------------------------------------------
04/01/98 BR Base Rent CH 277.78 277.78
AUTOCHRG
05/01/98 BR Base Rent CH 6,295.18 6,295.18
AUTOCHRG
05/01/98 PC Parking In CH 350.00 350.00
AUTOCHRG
06/01/98 BR Base Rent CH 6,295.18 6,295.18
AUTOCHRG
06/01/98 PC Parking In CH 350.00 350.00
AUTOCHRG
06/23/98 MNO Misc. Non- CR 4,837.93CR 4,837.93CR
UNALLOCATE
Total: 8,730.21 1,807.25 6,645.18 277.78 0.00 0.00
- -------------------------------------------------------------------------------------------------------------------------------
269301-3900 000059 HYATT CORPORAION Occupied Day Due: 1 Delq. Day: 0
RON DEBIASE 3900 Last Payment: 06/30/98 205,993.36
(312) 750-8128
- -------------------------------------------------------------------------------------------------------------------------------
06/01/98 PC Parking In CH 7,310.00 7,310.00
AUTOCHRG
06/01/98 SRC Cleaning-B CH 5,905.00 5,905.00
AUTOCHRG
06/30/98 MNO Misc. Non- CR 1,495.14CR 1,495.14CR
UNALLOCATE
Total: 11,719.86 11,719.86 0.00 0.00 0.00 0.00
- -------------------------------------------------------------------------------------------------------------------------------
269301-5001 000095 THE HARTFORD Occupied Day Due: 1 Delq. Day: 0
WORK ORDERS 5001 Last Payment: 06/20/98 771.20
LARRY SANDLIN
(312) 704-4284
- -------------------------------------------------------------------------------------------------------------------------------
06/12/98 MNO Misc. Non- CR 262.20CR 262.20CR
UNALLOCATE
Total: 262.20CR 262.20CR 0.00 0.00 0.00 0.00
- -------------------------------------------------------------------------------------------------------------------------------
269301-5004 000098 BAIRD & WARNER Occupied Day Due: 1 Delq. Day: 0
WORK ORDERS 5004 Last Payment: 06/29/98 110.00
JAMES L. MANN
(312) 368-1855
- -------------------------------------------------------------------------------------------------------------------------------
12/01/98 SVC Service re CH 45.00 45.00
WORKORDERS
01/01/98 SRC Cleaning-B CH 45.00 45.00
AUTOCHRG
01/01/98 SRC Cleaning-B CH 20.00 20.00
AUTOCHRG
01/01/98 SRC Cleaning-B CH 15.00 15.00
WORKORDER
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
AGED DELINQUENT AND PREPAID BALANCES
EQUITABLE REAL ESTATE MGMT.
===============================================================================================================================
Invoice Date Category Source Amount Current 30 60 90 120
- -------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
BAIRD & WARNER WORK ORDERS Continued:
01/01/98 SRC Cleaning-B CH 15.00 15.00
WORKORDER
01/01/98 SRC Cleaning-B CH 45.00 45.00
WORKORDER
01/01/98 SRC Cleaning-B CH 20.00 20.00
WORKORDER
01/01/98 SRC Cleaning-B CH 20.00 20.00
WORKORDER
01/01/98 SRC Cleaning-B CH 30.00 30.00
WORKORDER
02/01/98 SVC Service re CH 95.00 95.00
WORKORDER
02/01/98 SVC Service re CH 30.00 30.00
WORKORDER
03/01/98 SVC Service re CH 45.00 45.00
WORKORDER
03/01/98 SVC Service re CH 90.00 90.00
WORKORDER
03/01/98 SVC Service re CH 45.00 45.00
WORKORDER
05/01/98 SVC Service re CH 65.00 65.00
WORKORDER
05/01/98 SVC Service re CH 15.00 15.00
WORKORDER
05/01/98 SVC Service re CH 383.00 383.00
WORKORDER
06/29/98 MNO Misc. Non- CR 35.00CR 35.00CR
UNC/ WO #
06/29/98 MNO Misc. Non- CR 110.00CR 110.00CR
UNALLOCATE
Total: 878.00 145.00CR 463.00 0.00 180.00 380.00
- -------------------------------------------------------------------------------------------------------------------------------
269301-5007 000101 HYATT CORPORATION Occupied Day Due: 1 Delq. Day: 0
WORK ORDER 5007 Last Payment: 06/3098 605.00
CHRIS GILBERT
(312) 750-8128
- -----------------------------------------------------------------------------------------------------------------------------
03/06/98 MNO Misc. Non- CR 8.93CR 8.93CR
UNC/ WO # 87
Total: 8.93CR 0.00 0.00 0.00 8.93CR 0.00
- -----------------------------------------------------------------------------------------------------------------------------
269301-5025 000201 USSNET Occupied Day Due: 1 Delq. Day: 0
5025 Last Payment:
- -----------------------------------------------------------------------------------------------------------------------------
02/25/98 MNO Misc. Non- CH 1,000.00 1,000.00
2/98 LICEN
03/01/98 MNO Misc. Non- CH 1,000.00 1,000.00
AUTOCHRG
04/01/98 MNO Misc. Non- CH 1,000.00 1,000.00
AUTOCHRG
05/01/98 MNO Misc. Non- CH 1,000.00 1,000.00
AUTOCHRG
06/01/98 MNO Misc. Non- CH 1,000.00 1,000.00
AUTOCHRG
Total: 5,000.00 1,000.00 1,000.00 1,000.00 1,000.00 1,000.00
- -----------------------------------------------------------------------------------------------------------------------------
269301-6006 000073 MERCANTILE CAPITAL Occupied Day Due: 1 Delq. Day: 0
MARKETS 6006 Last Payment: 06/19/98 70.23
- -----------------------------------------------------------------------------------------------------------------------------
04/01/98 RC Esc-Re Tax CH 151.53 151.53
AUTOCHRG
Total: 151.53 0.00 0.00 151.53 0.00 0.00
- -----------------------------------------------------------------------------------------------------------------------------
269301-6008 000073 BRADLEY UNIVERSITY Occupied Day Due: 1 Delq. Day: 0
6008 Last Payment: 06/12/98 2,008.64
- -----------------------------------------------------------------------------------------------------------------------------
03/30/98 MNO Misc. Non- CR 1,583.32CR 1,583.32CR
UNALLOCATE
Total: 1,583.32CR 0.00 0.00 0.00 1,583.32CR 0.00
- -----------------------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
AGED DELINQUENT AND PREPAID BALANCES
EQUITABLE REAL ESTATE MGMT.
===============================================================================================================================
Invoice Date Category Source Amount Current 30 60 90 120
- -------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
269301-6009 000076 CPC ELECTRICAL SUPPLY Occupied Day Due: 1 Delq. Day: 0
COMPANY 6009 Last Payment: 06/2098 67.94
- -------------------------------------------------------------------------------------------------------------------------------
01/01/98 BR Base Rent CH 1,260.00 1,260.00
AUTOCHRG
02/01/98 BR Base Rent CH 1,260.00 1,260.00
AUTOCHRG
03/01/98 BR Base Rent CH 1,260.00 1,260.00
AUTOCHRG
04/01/98 BR Base Rent CH 1,260.00 1.260.00
AUTOCHRG
04/01/98 RC Esc-RE Tax CH 52.17 52.17
AUTOCHRG
05/01/98 BR Base Rent CH 1,260.00 1,260.00
AUTOCHRG
05/01/98 RC Esc-RE Tax CH 52.17 52.17
AUTOCHRG
06/12/98 MNO Misc. Non- CR 15.77CR 15.77CR
AUTOCHRG
Total: 6,388.57 15.77CR 1,312.17 1.312.17 1,260.00 2,520.00
- -------------------------------------------------------------------------------------------------------------------------------
269301-6010 000077 RICHARD L. GERBER Occupied Day Due: 1 Delq. Day: 0
6010 Last Payment: 06/12/98 19.96
- -------------------------------------------------------------------------------------------------------------------------------
01/01/98 BR Base Rent CH 1,069.67 1,069.67
AUTOCHRG
01/01/98 SRC Cleaning-B CH 149.50 149.50
WORKORDER
02/01/98 BR Base Rent CH 1,192.75 1,192.75
AUTOCHRG
Total 2,411.92 0.00 0.00 0.00 0.00 2,411.92
- -------------------------------------------------------------------------------------------------------------------------------
269301-6011 000078 LISA KOTRA & Occupied Day Due: 1 Delq. Day: 0
ASSOCIATES 6011 Last Payment: 06/12/98 1,672.05
- -------------------------------------------------------------------------------------------------------------------------------
02/23/98 MNO Misc. Non- CH 42.93CR 42.93CR
UNALLOCATE
03/01/98 OC Misc. Non- NC 178.35CR 178.35CR
1997 OP. E
03/23/98 MNO Misc. Non- CR 43.93CR 43.93CR
UNALLOCATE
04/23/98 MNO Misc. Non- CR 76.43CR 76.43CR
AUTOCHRG
Total: 341.64CR 0.00 0.00 76.43CR 222.28CR 42.93CR
- -------------------------------------------------------------------------------------------------------------------------------
269301-7001 000092 LASALLE NATIONAL BANK Occupied Day Due: 1 Delq. Day: 0
ANTODRA ROUSE 7001 Last Payment: 06/11/98 275.00
- -------------------------------------------------------------------------------------------------------------------------------
06/11/98 MNO Misc. Non- CR 275.00CR 275.00CR
UNALLOCATE
Total: 275.00CR 275.00CR 0.00 0.00 0.00 0.00
- -------------------------------------------------------------------------------------------------------------------------------
269301-8013 000148 BEAR CONSTRUCTION Occupied Day Due: 1 Delq. Day: 0
(708) 593-6400 8013 Last Payment: 07/21/98 159.80
- -------------------------------------------------------------------------------------------------------------------------------
05/07/98 MNO Misc. Non- CR 148.00CR 148.00CR
UNALLOCATE
Total: 148.00CR 0.00 0.00 0.00 0.00 148.00CR
- -------------------------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
AGED DELINQUENT AND PREPAID BALANCES
EQUITABLE REAL ESTATE MGMT.
===============================================================================================================================
Invoice Date Category Source Amount Current 30 60 90 120
- -------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Totals:
BR Base Rent 95,736.81 69,153.80 13.545.09 1,637.78 2,424.92 8,975.22
MIT Misc Oper Income-
tenant 591.03 0.00 0.00 591.03 0.00 0.00
MNO Misc. Non-operating 182,518.52CR 24,601.58CR 161.17 79,561.91CR 7,535.15CR 70,981.05CR
MR Esc-Misc/Pr Yr Adj 452.08CR 0.00 0.00 0.00 0.00 452.08CR
OC Escal-Op Exp/ Cur 16,505.00 6,408.28 5,486.49 0.00 1,829.93 2,780.30
Yr Est
PC Parking Income- 8,710.00 8,360.00 350.00 0.00 0.00 0.00
Contract
RC Esc-RE Taxes/Cur 32,882.31 7,913.93 8,641.25 15,712.45 3,279.23CR 3,893.88
Yr Est
RR Esc-RE Taxes/Pr 1,690.18CR 0.00 0.00 0.00 0.00 1,690.18CR
Yr Adj
SR Base rent-storage 2,513.00 1,855.00 0.00 0.00 0.00 658.00
SRC Cleaning-Billed
to Ten. 8,369.04 7,996.54 0.00 0.00 0.00 372.50
SVC Service recovery 5,830.20 2,728.36 1,393.64 0.00 1,503.20 205.00
income
Total 13,523.39CR 79,814.33 29,577.67 61,620.65CR 5,056.33CR 56,238.41CR
</TABLE>
<PAGE>
Exhibit 5. 1 (e)
----------------
NOTICE OF VIOLATIONS
Those items marked as "Open" on the attached notice of fire code violations.
<PAGE>
AREA CO2 CITY OF CHICAGO ICN 8005842
EDWARD P. ALTMAN BUREAU OF FIRE PREVENTION
444 NO. DEARBORN ST.
JOHN T. ORMOND CHICAGO, IL. 6061O
Deputy Fire Commissioner
MADISON PLAZA BUILDING DATE OF INSPECTION 02/23 /98 -
EDWARD NEMEC DATE OF NOTICE 03/11/98
200 W MADISON WIDTH 00175 LENGTH 00175 HEIGHT 045 02
CHICAGO IL 60606 BLDG NO 00000 TENANT NO.
FLOOR 000 ROOM TYPE AN
CONS'T R BADGE NO. 165
OCCUP CLASS M001
You are hereby notified as owner, agent. lessee or occupant of the structure
located at 00200 W. MADISON
-----
- --------------------------------------------------------------------------------
to comply with the Municipal Code of Chicago within 15 days as follows:
STATUS
0001 001295 C
SECTION 13-76-030, 13-76-040, 13-76-050, 13-76-060, l3-76-070, 13-76-080,
13-76-100,13-76-120 PROVIDE AND/OR TEST 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.
0003 001494 O
SEC. 13-160-710, 13-196-090 EXTEND THE PRESENT EXIT LIGHTING SO AS TO
INCLUDE. FL 45 HYATT STORAGE ROOM #3 SIGN
0004 001453 O
SEC. 13-160-269 REPAIR THE ELECTO-MAGNETIC LOCKING DEVICES ON EXIT
DOORS(S) AND KEEP THESE DOOR(S) IN OPERABLE CONDITION AT ALL TIMES FL 39
WEST STAIR DOOR (WOULD NOT OPEN ONLY HUMMING SOUND)
0005 001451 S
SEC. 13-160-269 REMOVED UNAPPROVED ELECTRO-MAGNETIC LOCKING DEVICE(S). FL
39 ELEVATOR LOBBY (MAKE ALL ACCESSIBLE TO STAIRWELL)
0006 001449 S
SEC. 13-150-269 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 FL 39 ELEVAT0R LOBBY (MAKE
ACCESSIBLE TO STAIRWELL)
C Complied
S Suppressed
O Open
<PAGE>
AREA CO2 CITY OF CHICAGO ICN 8005842
EDWARD P. ALTMAN BUREAU OF FIRE PREVENTION
444 NO. DEARBORN ST.
JOHN T. ORMOND CHICAGO, IL. 6061O
Deputy Fire Commissioner
MADISON PLAZA BUILDING DATE OF INSPECTION 02/23 /98 -
EDWARD NEMEC DATE OF NOTICE 03/11/98
200 W MADISON WIDTH 00175 LENGTH 00175 HEIGHT 045 02
CHICAGO IL 60606 BLDG NO 00000 TENANT NO.
FLOOR 000 ROOM TYPE AN
CONS'T R BADGE NO. 165
OCCUP CLASS M001
You are hereby notified as owner, agent. lessee or occupant of the structure
located at 00200 W. MADISON
-----
- --------------------------------------------------------------------------------
STATUS
0007 001455 S
SEC.13-16O-269 POST SIGN ON DOOR WHICH IS OPERATED BY AN ELECTRO-MAGNETIC
LOCKING DEVICE, "PUSH UNTIL ALARM SOUNDS DOOR CAN BE OPENED IN FIFTEEN (l5)
SECONDS"..
FL 39 ELEVATOR LDBBY (MAKE ACCESSIBLE TO STAIRWELL)
0008 001451 S
SEC. 13-160-269 REMOVED UNAPPROVED ELECTRO-MAGNETlC LOCKING DEVICE(S).
FL 38 ELEVATOR LOBBY (MAKE ACCESSIBLE TO STAIRWELL)
0009 001449 S
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.
FL 38 ELEVATOR LOBBY (MAKE ACCESSIBLE To STAIRWELL)
0010 001455 S
SEC. 13-160-269 POST SIGN ON DOOR WHICH IS OPERATED BY AN ELECTRO-MAGNETIC
LOCKING DEVICE. "PUSH UNTIL ALARM SOUNDS DOOR CAN BE OPENED IN FIFTEEN
(15) SECONDS".
FL 38 ELEVATOR LOBBY (MAKE ACCESSIBLE TO STAIRWELL)
0011 001480 O
SEC. 13- 160-700, 13-196-090 PROVIDE APPROVED DIRECTIONAL SIGNS, LETTERING
SHALL BE IN BL0CK LETTERS THREE AND THREE EIGHTS (3 3/8) INCHES HIGH WITH A
NINE SIXTEENTH (9/16) INCH STROKE. LETTERING AND ARROWS SHALL BE RED ON A
WHITE TRANSLUCENT FIELD.
FL 38 ELEVATOR LOBBY CORRIDOR TO STAIRS (#6 SIGN)
<PAGE>
AREA CO2 CITY OF CHICAGO ICN 8005842
EDWARD P. ALTMAN BUREAU OF FIRE PREVENTION
444 NO. DEARBORN ST.
JOHN T. ORMOND CHICAGO, IL. 6061O
Deputy Fire Commissioner
MADISON PLAZA BUILDING DATE OF INSPECTION 02/23 /98 -
EDWARD NEMEC DATE OF NOTICE 03/11/98
200 W MADISON WIDTH 00175 LENGTH 00175 HEIGHT 045 02
CHICAGO IL 60606 BLDG NO 00000 TENANT NO.
FLOOR 000 ROOM TYPE AN
CONS'T R BADGE NO. 165
OCCUP CLASS M001
You are hereby notified as owner, agent. lessee or occupant of the structure
located at 00200 W. MADISON
-----
- -------------------------------------------------------------------------------
STATUS
0012 001870 C
SEC. 15-4-870, 13-160-260, 2-36-280 KEEP ALL FXIR DOORS SO THAT THEY CAN
BE EASILY OPENED FROM THE INSIDE WITHOUT THE USE OF A KEY OR ANY SPECIAL
KNOWLEDGE.
FL 31 ELEVATOR FREIGHT AREA (MAKE ACCESSIBLE TO STAIRWELL)
0013 001870 C
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.
FL 30 ELEVATOR LOBBY (MAKE ACCESSIBLE TO STAIRWELL)
0014 001870 C
SEC.15-4-870, 13-16O-260, 2-36-280 KEEP ALL EXIT DOORS SO THAT THEY CAN BE
EASILY OPENED FROM THE INSIDE WITHOUT THE USE 0FF A KEY OR ANY SPECIAL
KNOWLEDGE.
FL 29 ELEVATOR LOBBY (MAKE ACCESSIBLE TO STAIRWELL)
0015 001870 S
SEC. 15-4-870, 13-l6O-26O, 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,
FL 25 ELEVATOR LOBBY (MAKE ACCESSIBLE TO STAIRWELL)
<PAGE>
AREA CO2 CITY OF CHICAGO ICN 8005842
EDWARD P. ALTMAN BUREAU OF FIRE PREVENTION
444 NO. DEARBORN ST.
JOHN T. ORMOND CHICAGO, IL. 6061O
Deputy Fire Commissioner
MADISON PLAZA BUILDING DATE OF INSPECTION 02/23 /98 -
EDWARD NEMEC DATE OF NOTICE 03/11/98
200 W MADISON WIDTH 00175 LENGTH 00175 HEIGHT 045 02
CHICAGO IL 60606 BLDG NO 00000 TENANT NO.
FLOOR 000 ROOM TYPE AN
CONS'T R BADGE NO. 165
OCCUP CLASS M001
You are hereby notified as owner, agent. lessee or occupant of the structure
located at 00200 W. MADISON
-----
- --------------------------------------------------------------------------------
STATUS
0016 001494 O
SEC. 13-160-710, 13-196-090 EXTEND THE PRESENT EXIT LIGHTING SO AS
TO INCLUDE
FL 15 ELEVATOR LOBBY (TO INDICATE DIRECTION TO STAIRS)
0017 001451 S
SEC. 13-160-269, REMOVED UNAPPROVED ELECTRO-MAGNETIC LOCKING
DEVICE(S).
FL 15 ELEVATOR LOBBY (MAKE ACCESSIBLE TO STAIRWELL)
0018 001449 S
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.
FL 15 ELEVATOR LOBBY (MAKE ACCESSIBLE TO STAIRWELL)
0019 001455 S
SEC. 13-160-269 POST SIGN ON DOOR WHICH IS OPERATED BY AN ELECTRO-MAGNETIC
LOCKING DEVICE, "PUSH UNTIL ALARM SOUNDS DOOR CAN BE OPENED IN FIFTEEN (15)
SECONDS".
FL 15 ELEVATOR LOBBY (MAKE ACCESSIBLE TO STAIRWELL)
0020 001451 S
SEC. 13-160-269 REMOVED UNAPPROVED ELECTRO-MAGNETIC LOCKING DEVICE(S).
FL 14 ELEVATOR LOBBY (MAKE ACCESSIBLE TO LOBBY)
<PAGE>
AREA CO2 CITY OF CHICAGO ICN 8005842
EDWARD P. ALTMAN BUREAU OF FIRE PREVENTION
444 NO. DEARBORN ST.
JOHN T. ORMOND CHICAGO, IL. 6061O
Deputy Fire Commissioner
MADISON PLAZA BUILDING DATE OF INSPECTION 02/23 /98 -
EDWARD NEMEC DATE OF NOTICE 03/11/98
200 W MADISON WIDTH 00175 LENGTH 00175 HEIGHT 045 02
CHICAGO IL 60606 BLDG NO 00000 TENANT NO.
FLOOR 000 ROOM TYPE AN
CONS'T R BADGE NO. 165
OCCUP CLASS M001
You are hereby notified as owner, agent. lessee or occupant of the structure
located at 00200 W. MADISON
-----
- --------------------------------------------------------------------------------
STATUS
0021 001449 S
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.
FL 14 ELEVATOR LOBBY
0022 001455 S
SEC. 13-160-26, POST SIGN ON DOOR WHICH IS OPERATED BY AN ELECTRO-MAGNETIC
LOCKING DEVICE, "PUSH UNTIL ALARM SOUNDS DOOR CAN BE OPENED IN FIFTEEN (15)
SECONDS".
FL 14 ELEVATOR LOBBY
0023 001451 S
SEC.13-160-269 REMOVED UNAPPROVED ELECTRO-MAGNETIC LOCKING DEVICE(S).
FL 13 ELEVATOR LOBBY (MAKE ACCESSIBLE TO STAIRWELL)
0024 001449 S
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.
FL 13 ELEVATOR LOBBY
0025 001455 S
SEC. 13-160-269 POST SIGN ON DOOR WHICH IS OPERATED BY AN ELECTRO-MAGNETIC
LOCKING DEVICE, "PUSH UNTIL ALARM SOUNDS DOOR CAN BE OPENED IN FIFTEEN (15)
SECONDS".
FL 13 ELEVATOR LOBBY
<PAGE>
AREA CO2 CITY OF CHICAGO ICN 8005842
EDWARD P. ALTMAN BUREAU OF FIRE PREVENTION
444 NO. DEARBORN ST.
JOHN T. ORMOND CHICAGO, IL. 6061O
Deputy Fire Commissioner
MADISON PLAZA BUILDING DATE OF INSPECTION 02/23 /98 -
EDWARD NEMEC DATE OF NOTICE 03/11/98
200 W MADISON WIDTH 00175 LENGTH 00175 HEIGHT 045 02
CHICAGO IL 60606 BLDG NO 00000 TENANT NO.
FLOOR 000 ROOM TYPE AN
CONS'T R BADGE NO. 165
OCCUP CLASS M001
You are hereby notified as owner, agent. lessee or occupant of the structure
located at 00200 W. MADISON
-----
- -------------------------------------------------------------------------------
STATUS
0026 001870 S
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.
FL 9 ELEVATOR LOBBY (MAKE ACCESSIBLE TO STAIRWELL)
0027 001494 O
SEC. 13-160-710, 13-160-090 EXTEND THE PRESENT EXIT LIGHTING SO AS TO
INCLUDE.
FL 8 ELEVATOR LOBBY (MAKE ACCESSIBLE TO STAIRWELL
0028 001870 S
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.
FL 8 ELEVATOR LOBBY (MAKE ACCESSIBLE TO STAIRWELL)
0029 001494 C
SEC. 13-160-710, 13-196-090 EXTEND THE PRESENT EXIT LIGHTING SO AS TO
INCLUDE.
FL 5 ELEVATOR LOBBY (INDICATE LOCATION TO STAIRWELL)
0030 001454 C
SEC. 13-160-280 ADJUST ENTRANCE AND/OR VESTIBULE DOOR(S) SO THAT THEY SHALL
OPEN WITH A FORCE NOT TO EXCEED TEN (10) POUNDS.
FL 5 ELEVATOR LOBBY (INDICATE LOCATION TO STAIRWELL)
<PAGE>
AREA CO2 CITY OF CHICAGO ICN 8005842
EDWARD P. ALTMAN BUREAU OF FIRE PREVENTION
444 NO. DEARBORN ST.
JOHN T. ORMOND CHICAGO, IL. 6061O
Deputy Fire Commissioner
MADISON PLAZA BUILDING DATE OF INSPECTION 02/23 /98 -
EDWARD NEMEC DATE OF NOTICE 03/11/98
200 W MADISON WIDTH 00175 LENGTH 00175 HEIGHT 045 02
CHICAGO IL 60606 BLDG NO 00000 TENANT NO.
FLOOR 000 ROOM TYPE AN
CONS'T R BADGE NO. 165
OCCUP CLASS M001
You are hereby notified as owner, agent. lessee or occupant of the structure
located at 00200 W. MADISON
-----
- -------------------------------------------------------------------------------
STATUS
0031 001494 C
SEC. 13-160-710, 13-196-090 EXTEND THE PRESENT EXIT LIGHTING SO AS
TO INCLUDE.
FL 2 ELEVATOR LOBBY (INDICATE LOCATION TO STAIRWELL)
0032 001432 C
SEC. 13-160-330, 15-4-880, 13-196-460 REMOVE ALL ITEMS FROM UNDER
STAIRWAY(S) AND DISCONTINUE USING THIS AREA FOR A CLOSET OR STORAGE SPACE.
BASEMENT CHILLER ROOM (OIL, BOXES, RAGS, METAL CABINET)
0033 001174 C
SEC.13-112-140 DISCONTINUE USING THE BASEMENT, OR ANY OTHER AREA BELOW
GRADE FOR FLAMMABLE LIQUIDS .
BASEMENT PARKING GARAGE PAINT RM (THINNER & OIL BASED PAINTS
0034 001494 C
SEC. 13-160-710, 13-196-090 EXTEND THE PRESENT EXIT LIGHTING SO AS TO
INCLUDE.
FL 1 WEST STAIRWELL (#3 SIGN)
0035 001276 C
SEC. 15-8-640, 15-8-120, 13-112-220 CLOSE UP ALL OPENINGS AROUND EXPOSED
PIPING WITH APPROVED NON-COMBUSTIBLE MATERIALS THAT WILL RETARD THE SPREAD
OF FIRE.
FL 1WEST STAIRWELL OVER DOOR
<PAGE>
AREA CO2 CITY OF CHICAGO ICN 8005842
EDWARD P. ALTMAN BUREAU OF FIRE PREVENTION
444 NO. DEARBORN ST.
JOHN T. ORMOND CHICAGO, IL. 6061O
Deputy Fire Commissioner
MADISON PLAZA BUILDING DATE OF INSPECTION 02/23 /98 -
EDWARD NEMEC DATE OF NOTICE 03/11/98
200 W MADISON WIDTH 00175 LENGTH 00175 HEIGHT 045 02
CHICAGO IL 60606 BLDG NO 00000 TENANT NO.
FLOOR 000 ROOM TYPE AN
CONS'T R BADGE NO. 165
OCCUP CLASS M001
You are hereby notified as owner, agent. lessee or occupant of the structure
located at 00200 W. MADISON
-----
- -------------------------------------------------------------------------------
STATUS
0036 001276 C
SEC. 15-8-640, 15-8-120, 13-112-220 CLOSE UP ALL OPENINGS AROUND EXPOSED
PIPING WITH APPROVED NON-COMBUSTIBLE MATERIALS THAT WILL RETARD THE SPREAD
OF FIRE.
0037 001486 C
SEC. 13-160-700, 13-196-030, 13-160-750 REMOVE UNAPPROVED EXIT, STAIRWAY,
FIRE ESCAPE, OR DIRECTIONAL SIGN(S).
FL 1 DOOR AT LOADING DOCK #12 GLASS
0038 001494 C
SEC.13-160-710, 13-196-090 EXTEND THE PRESENT EXIT LIGHTING SO AS TO
INCLUDE.
FL 1 DOOR AT LOADING DOCK #3 GLASS
0039 001870 C
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.
FL 1 REAR HALL BEFORE NORTH EXIT (KEY LOCK ON DOOR)
0040 001650 C
SEC. 13-180-040 MAINTAIN ADEQUATE CLEARANCE AROUND HEAT PRODUCING
APPLIANCE(S) FREE FROM COMBUSTIBLE MATERIAL.
MEZZANINE FAN ROOM CLOTHES HANGING & BOXES)
<PAGE>
AREA CO2 CITY OF CHICAGO ICN 8005842
EDWARD P. ALTMAN BUREAU OF FIRE PREVENTION
444 NO. DEARBORN ST.
JOHN T. ORMOND CHICAGO, IL. 6061O
Deputy Fire Commissioner
MADISON PLAZA BUILDING DATE OF INSPECTION 02/23 /98 -
EDWARD NEMEC DATE OF NOTICE 03/11/98
200 W MADISON WIDTH 00175 LENGTH 00175 HEIGHT 045 02
CHICAGO IL 60606 BLDG NO 00000 TENANT NO.
FLOOR 000 ROOM TYPE AN
CONS'T R BADGE NO. 165
OCCUP CLASS M001
You are hereby notified as owner, agent. lessee or occupant of the structure
located at 00200 W. MADISON
-----
- -------------------------------------------------------------------------------
STATUS
0041 001502 C
SEC. 13-1247-320, 13-124-330 PROVIDE GUARD RAILS THAT ARE NOT LESS
THAN THREE (3) FEET IN HEIGHT.
FL 45 HYATT STORAGE RM TO KEEP STORAGE FROM FALLING IN STAIR
Questions regarding this notice can be answered by calling 744-4716
****** Remember Smoke Detectors save lives ******
<PAGE>
CITY OF CHICAGO FIRE PREVENTION BUREAU 06/05/98
MANAGEMENT SUMMARY INFORMATION 15:02:04
STANDARD FUNCTION HOUSE # DIR STREET NAME BLDG# TEN# BUR ST RECORD KEY
KEY DATA LINE===> FM 2 N WELLS ST 00000 8005842
NAME/DESCR:
OWNER/TENANT: RESPONSIBLE PARTY
NAME: MADISON PLAZA BUILDING TP=0 NAME: MIGLIN-BEITLER TP=R
ADDRS: EDWARD NEMEC NI:Y ADDRS: MIKE RILEY NI:I
200 W MADISON 200 W MADISON
SUITE 2050
CITY: CHICAGO CITY: CHICAGO
STATE: IL ZIP: 60606 STATE: IL ZIP: 60606
PHONE: 407 6400 (312) PHONE: 407 6400 (312)
LAST-INSP ANN.DATE STATUS YEAR-BLT OCC-CLASS TYPE AREA WIDTH LENGTH
06/05/98 04/22/98 RECHECK 1985 M001 AN CO2 00175 00175
HEIGHT BSMT WATER EX FA AS SP FP HD CD-CONSTRUCTION-TP TRS OTHER-BLDG-USE
045 02 C Y Y Y Y Y R FIRE RESISTIVE
HAXMAT: YES TK: YES VIOLATIONS: YES DOCUMENT OUT: NO
GENERAL ADDRESS:
MISC: PERMIT: 000000 ISSU-DTE:00/00/00 FEE: 350.00
PLEASE PRESS PF8 TO DISPLAY CURRENT VIOLATIONS
<PAGE>
CITY OF CHICAGO - FIRE PREVENTION BUREAU 06/05/98
DISPLAY FIRE VIOLATIONS 15:04:13
STANDARD FUNCTION HOUSE# DIR STREET NAME BLDG# T'EN# BUR ST RECORD KEY
EY DATA LINE===> FD 2 N WELLS ST 00000 8005842
NAME/DESCR:
INSPECTION CONTROL NUMBER: 8005842
INSPECTI0N
SEQ. VIOL#. VIOLATION TEXT/LOCATION DESCRIPTION DATE
CD
001 001295 PROVIDE FOR A TEST OF THE FIRE ALARM SYSTEM 02/23/98 C
002 001245 NO SHORT TEXT ON FILE OR INCOMPLETE STATUS 02/23/98 S
FL 44 SUITE 4400 FYATT WEST CENTER STAIR TO FL 45 STORAGE
003 001494 EXTEND THE PRESENT EXIT LIGHTING SO AS TO INCLUDE. 02/23/98 O
FL 45 HYATT STORAGE ROOM #3 SIGN
004 001453 REPAIR ELECTRO-MAGNETIC LOCKS ON EXIT DOOR(S), 02/23/98 O
FL 39 WEST STAIR DCOR (WOULD NOT OPEN ONLY HUMMING SOUND)
005 001451 REMOVE UNAPPROVED ELECTRO-MAGNETIC LOCKS, 06/05/98 S
FL 39 ELEVATOR LOBBY (MAKE ALL ACCESSIBLE TO STAIRWELL)
006 001449 PROVIDE ELECTRO-MAGNETIC DEVICES, WITH PLANS. 06/05/98 S
FL 39 ELEVATOR LOBBY (MAKE ACCESSIBLE TO STAIRWELL)
MORE DATA ... PRESS PF2 TO DISPLAY
<PAGE>
CITY OF CHICAGO - FIRE PREVENTION BUREAU 06/05/98
DISPLAY FIRE VIOLATIONS 15:04:13
STANDARD FUNCTION HOUSE# DIR STREET NAME BLDG# T'EN# BUR ST RECORD KEY
EY DATA LINE===> FD 2 N WELLS ST 00000 8005842
NAME/DESCR:
INSPECTION CONTROL NUMBER: 8005842
INSPECTI0N
SEQ. VIOL#. VIOLATION TEXT/LOCATION DESCRIPTION DATE CD
0007 001455 POST SIGN ON ELECTRO-MAGNETIC LOCKED DOOR. 06/05/98 S
FL 39 ELEVATOR LOBBY (MAKE ACCESSIBLE TO STAIRWELL)
0008 001451 REMOVE UNAPPROVED ELECTRO-MAGNETIC LOCKS. 06/05/98 S
FL 38 ELEVATOR LOBBY (MAKE ACCESSIBLE TO STAIRWELL)
0009 001449 PROVIDE ELECTRO-MAGNETIC DEVICES, WITH PLANS. 06/05/98 S
FL 38 ELEVATOR LOBBY (MAKE ACCESSIBLE TO STAIRWELL)
0010 001455 POST SIGN ON ELECTRO-MAGNETIC LOCKED DOOR. 06/05/98 S
FL 38 ELEVATOR LOBBY (MAKE ACCESSIBLE TO STAIRWELL)
0011 001480 PROVIDE APPROVED DIRECTIONAL SIGNS. 02/23/98 O
FL 38 ELEVATOR LOBBY CORRIDOR TO STAIRS (#6 SIGN)
0012 001870 KEEP EXIT DOORS SO THAT THEY CAN BE EASILY OPENED. 02/23/98 C
FL 31 ELEVATOR FREIGHT AREA (MAKE ACCESSIBLE TO STAIRWELL)
MORE DATA... PRESS PF2 TO DISPLAY
<PAGE>
CITY OF CHICAGO - FIRE PREVENTION BUREAU 06/05/98
DISPLAY FIRE VIOLATIONS 15:04:13
STANDARD FUNCTION HOUSE# DIR STREET NAME BLDG# T'EN# BUR ST RECORD KEY
KEY DATA LINE===> FD 2 N WELLS ST 00000 8005842
NAME/DESCR:
INSPECTION CONTROL NUMBER: 8005842
INSPECTI0N
SEQ. VIOL#. VIOLATION TEXT/LOCATION DESCRIPTION DATE CD
0013 001870 KEEP EXIT DOORS SO THAT THEY CAN BE EASILY OPENED. 05/29/98 C
FL 30 ELEVATOR LOBBY (MAKE ACCESSIBLE TO STAIRWELL)
0014 001870 KEEP EXIT DOORS SO THAT THEY CAN BE EASILY OPENED. 02/23/98 C
FL 29 ELEVATOR LOBBY (MAKE ACCESSIBLE TO STAIRWELL)
0015 001870 KEEP EXIT DOORS SO THAT THEY CAN BE EASILY OPENED. 06/05/98 S
FL 25 ELEVATOR LOBBY (MAKE ACCESSIBLE TO STAIRWELL)
0016 001494 EXTEND THE PRESENT EXIT LIGHTING SO AS TO INCLUDE. 02/23/98 O
FL 15 ELEVATOR LOBBY (TO INDICATE DIRECTION TO STAIRS)
0017 001451 REMOVE UNAPPROVED ELECTRO-MAGNETIC LOCKS. 06/05/98 S
FL 15 ELEVATOR LOBBY (MAKE ACCESSIBLE TO STAIRWELL)
0018 001449 PROVIDE ELECTRO-MAGNETIC DEVICES WITH PLANS. 06/05/98 S
FL 15 ELEVATOR LOBBY (MAKE ACCESSIBLE TO STAIRWELL)
MORE DATA... PRESS PF2 TO DISPLAY
<PAGE>
CITY OF CHICAGO - FIRE PREVENTION BUREAU 06/05/98
DISPLAY FIRE VIOLATIONS 15:04:13
STANDARD FUNCTION HOUSE# DIR STREET NAME BLDG# T'EN# BUR ST RECORD KEY
KEY DATA LINE===> FD 2 N WELLS ST 00000 8005842
NAME/DESCR:
INSPECTION CONTROL NUMBER: 8005842
INSPECTI0N
SEQ. VIOL#. VIOLATION TEXT/LOCATION DESCRIPTION DATE CD
0019 001455 POST SIGN ON ELECTRO-MAGNETIC LOCKED DOOR. 06/05/98 S
FL 15 ELEVATOR LOBBY (MAKE ACCESSIBLE TO STAIRWELL)
0020 001451 REMOVE UNAPPROVED ELECTRO-MAGNETIC LOCKS. 06/05/98 S
FL 14 ELEVATOR LOBBY (MAKE ACCESSIBLE TO LOBBY)
0021 001449 PROVIDE ELECTRO-MAGNETIC DEVICES WITH PLANS. 06/05/98 S
FL 14 ELEVATOR LOBBY
0022 001455 POST SIGN ON ELECTRO-MAGNETIC LOCKED DOOR. 06/05/98 S
FL 14 ELEVATOR LOBBY
0023 001451 REMOVE UNAPPROVED ELECTRO-MAGNETIC LOCKS. 06/05/98 S
FL 13 ELEVATOR LOBBY (MAKE ACCESSIBLE TO STAIRWELL)
0024 001449 PROVIDE ELECTRO-MAGNETIC DEVICES, WITH PLANS. 06/05/98 S
FL 13 ELEVATOR LOBBY
MORE DATA... PRESS PF2 TO DISPLAY
<PAGE>
CITY OF CHICAGO - FIRE PREVENTION BUREAU 06/05/98
DISPLAY FIRE VIOLATIONS 15:04:13
STANDARD FUNCTION HOUSE# DIR STREET NAME BLDG# T'EN# BUR ST RECORD KEY
KEY DATA LINE===> FD 2 N WELLS ST 00000 8005842
NAME/DESCR:
INSPECTION CONTROL NUMBER: 8005842
INSPECTI0N
SEQ. VIOL#. VIOLATION TEXT/LOCATION DESCRIPTION DATE CD
0025 001455 POST SIGN ON ELECTRO-MAGNETIC LOCKED DOOR. 06/05/98 S
FL 13 ELEVATOR LOBBY
0026 001870 KEEP EXIT DOORS SO THAT THEY CAN BE EASILY OPENED. 06/05/98 S
FL 9 ELEVATOR LOBBY (MAKE ACCESSIBLE TO STAIRWELL)
0027 001494 EXTEND THE PRESENT EXIT LIGHTING SO AS TO INCLUDE. 02/23/98 O
FL 8 ELEVATOR LOBBY (MAKE ACCESSIBLE TO STAIRWELL)
0028 001870 KEEP EXIT DOORS SO THAT THEY CAN BE EASILY OPENED. 06/05/98 S
FL 8 ELEVATOR LOBBY (MAKE ACCESSIBLE TO STAIRWELL)
0029 001494 EXTEND THE PRESENT EXIT LIGHTING SO AS TO INCLUDE. 02/23/98 C
FL 5 ELEVATOR LOBBY (INDICATE LOCATION TO STAIRWELL)
0030 001454 ADJUST ENTRANCE AND/OR VESTIBULE DOORS. 02/23/98 C
FL 5 ELEVATOR LOBBY (INDICATE LOCATION TO STAIRWELL)
M0RE DATA... PRESS PF2 TO DISPLAY
<PAGE>
CITY OF CHICAGO - FIRE PREVENTION BUREAU 06/05/98
DISPLAY FIRE VIOLATIONS 15:04:13
STANDARD FUNCTION HOUSE# DIR STREET NAME BLDG# T'EN# BUR ST RECORD KEY
KEY DATA LINE===> FD 2 N WELLS ST 00000 8005842
NAME/DESCR:
INSPECTION CONTROL NUMBER: 8005842
INSPECTI0N
SEQ. VIOL#. VIOLATION TEXT/LOCATION DESCRIPTION DATE CD
0031 001494 EXTEND THE PRESENT EXIT LIGHTING SO AS TO INCLUDE. 02/23/98 C
FL 2 ELEVATOR LOBBY (INDICATE LOCATION TO STAIRWELL)
0032 001432 REMOVE ALL ITEMS FROM UNDER STAIRWAYS. 02/23/98 C
BASEMENT CHILLER ROOM (OIL, BOXES, RAGS, METAL CABINET)
0033 001174 DIS USING THE BSMT OR ANY OTHER AREA BELOW GRADE 02/23/98 C
BASEMENT PARKING GARAGE PAINT RM (THINNER & OIL BASED PAINTS
0034 001494 EXTEND THE PRESENT EXIT LIGHTING SO AS TO INCLUDE. 02/23/98 C
FL 1 WEST STAIRWELL (#3 SIGN)
0035 001276 CLOSE UP ALL OPENINGS AROUND EXPOSED PIPING. 02/23/98 C
FL I WEST STAIRWELL OVER DOOR
0036 001276 CLOSE UP ALL OPENINGS AROUND EXPOSED PIPING. 02/23/98 C
FL 1 GENERATOR ROOM OVER DOOR
MORE DATA... PRESS PF2 TO DISPLAY
<PAGE>
CITY OF CHICAGO - FIRE PREVENTION BUREAU 06/05/98
DISPLAY FIRE VIOLATIONS 15:04:13
STANDARD FUNCTION HOUSE# DIR STREET NAME BLDG# T'EN# BUR ST RECORD KEY
KEY DATA LINE===> FD 2 N WELLS ST 00000 8005842
NAME/DESCR:
INSPECTION CONTROL NUMBER: 8005842
INSPECTI0N
SEQ. VIOL#. VIOLATION TEXT/LOCATION DESCRIPTION DATE CD
0031 001486 REMOVE UNAPP EXIT, STAIR, FIRE ESCAPE, OR DIR SIGN 02/23/98 C
FL 1 DOOR AT LOADING DOCK #12 GLASS
0038 001494 EXTEND THE PRESENT EXIT LIGHTING SO AS TO INCLUDE. 02/23/98 C
FL 1 DOOR AT LOADING DOCK #3 GLASS
0039 001870 KEEP EXIT DOORS SO THAT THEY CAN BE EASILY OPENED. 05/29/98 C
FL 1 REAR HALL BEFORE NORTH EXIT (KEY LOCK ON DOOR)
0040 001650 MAINTAIN ADEQUATE CLEARANCE AROUND HEAT PROD APP. 02/23/98 C
MEZZANINE FAN ROOM CLOTHES HANGING & BOXES)
0041 001502 PROVIDE 3 FT HIGH GUARD RAILS. 05/29/98 C
FL 45 HYATT STORAGE RM TO KEEP STORAGE FROM FALLING IN STAIR
<PAGE>
EXHIBIT 10(KKK)
ASSIGNMENT AND ASSUMPTION OF CONTRACT RIGHTS
THIS ASSIGNMENT AND ASSUMPTION OF CONTRACT RIGHTS (this "Agreement") is
made and entered into as of the 8th day of July, 1998, by and between OVERSEAS
-----
PARTNERS CAPITAL CORP., a Delaware corporation (hereinafter referred to as
"Assignor"), and OVERSEAS PARTNERS (MADISON PLAZA) LLC, an Illinois limited
liability company whose sole member is OVERSEAS PARTNERS (MADISON PLAZA), Inc.,
a Delaware corporation (said limited liability company is hereinafter referred
to as "Assignee").
WITNESSETH:
WHEREAS, prior to the date hereof, Assignor entered into that certain
Purchase and Sale Agreement, dated as of June 30, 1998 (the "Contract") between
MADISON PLAZA VENTURE, an Illinois general partnership, as Seller, and Assignor,
as Purchaser, for the purchase and sale of that certain improved real property
commonly known as "Madison Plaza," located at 200 West Madison Street, Chicago,
Illinois (according to the street numbering system currently in use in the City
of Chicago, Illinois) and more particularly described on EXHIBIT "A" attached
hereto and made a part hereof (the "Property"); and
WHEREAS, Assignor wishes to assign all of its right, title and interest as
"Purchaser" (as defined in the Contract) in the Contract to Assignee, and Assign
wishes to accept such assignment and to assume the obligations of Assignor under
the Contract;
NOW, THEREFORE, for and in consideration of the sum of Ten and No/100
Dollars ($10.00), and other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, Assignor and Assignee
hereby covenant and agree as follows:
1. Assignor hereby transfers, grants, conveys and assigns to Assignee all
of Assignor's right, title, interest, and benefit in, to and under the Contract,
including, without limitation, all right, title and interest of Assignor in and
to the "Earnest Money," as defined in and held by Commonwealth Land Title
Insurance Company pursuant to the terms of the Contract.
2. Assignee hereby assumes and agrees to perform all obligations, duties
and liabilities of the "Purchaser" pursuant to or arising out of the Contract,
including, but not limited to, payment of the "Purchase Price" (as defined in
the Contract) and any and all fees and charges due from Assignor thereunder.
Assignee agrees to pay and/or reimburse Assignor for all costs and expenses
incurred or paid by Assignor under, pursuant to or arising out of the Contract.
3. This Agreement shall be binding upon and inure to the benefit of
Assignor and Assignee, and their respective legal representatives, successors
and assigns.
[Signatures Continue on Next Page]
<PAGE>
IN WITNESS WHEREOF, Assignor and Assignee have caused this Agreement to be
executed under seal by their respective duly authorized representatives as of
the date first above written.
ASSIGNOR:
OVERSEAS PARTNERS CAPITAL CORP.,
a Delaware corporation
By: /s/ Bruce M. Barone
Name: Bruce M. Barone
Its: President, CEO
(CORPORATE SEAL)
ASSIGNEE:
OVERSEAS PARTNERS (MADISON PLAZA) LLC,
an Illinois limited liability company
By: OVERSEAS PARTNERS (MADISON PLAZA), INC.,
a Delaware corporation, its sole member
By: /s/ Bruce M. Barone
Name: Bruce M. Barone
Its: President, CEO
(CORPORATE SEAL)
2
<PAGE>
EXHIBIT "A"
LEGAL DESCRIPTION
MADISON PLAZA
The East half of Lot 6 and all of Lots 7 and 8 (all taken as a tract), excepting
from said tract that part taken for widening of Madison Street, in Block 54 in
Original Town of Chicago, in Section 9, Township 39 North, Range 14 East of the
Third Principal Meridian, in Cook County, Illinois.
Containing 36,577 square feet (0.8397 acres) of land, more or less.
3
<PAGE>
EXHIBIT 10(LLLL)
DEED AND MONEY
ESCROW TRUST AGREEMENT
----------------------
Escrow No.: H455-1295 Date: July 7, 1998
Refer to: Martha E. McCall Fax: (312) 558-3008
Phone: (312) 558-1600 Ext. 3013
TO: COMMONWEALTH LAND TITLE INSURANCE COMPANY ("Escrowee ")
30 North LaSalle Street, Suite 3900
Chicago, Illinois 60602
Dear Ms. McCall:
Reference is made to that certain Commitment No. H455-1295, with an
effective date of June 22, 1998 (the "Title Commitment ") for an Owner's
Title Insurance Policy (the "Title Policy ") issued by Commonwealth Land
Title Insurance Company ("Title Insurer"), to insure Purchaser's fee simple
title to the Property and subject only to the Permitted Exceptions (defined
below), and providing coverage in the aggregate amount of $196,189,000.00.
1. SELLER'S DEPOSITS. MADISON PLAZA VENTURE ("Seller"), by
-----------------
its attorney Ira J.Swidler, Katten, Muchin & Zavis, 525 W. Monroe Street,
Suite 1600, Chicago, Illinois 60661,
Phone: (312) 902-5551, Fax: (312) 902-1061, will deposit or cause to be
deposited the following:
(a) Trustee's Deed (the "Deed") from Seller to Purchaser (defined below);
(b) Internal Revenue Code (S) 1445 Exemption Certificate (the "FIRPTA
Affidavit"), as executed on behalf of Seller;
(c) For purposes of the Illinois Responsible Property Transfer Act of
1988, as amended ("IRPTA"), either an "Environmental Disclosure
Document for Transfer of Real Property," as completed and executed on
behalf of Seller (the "IRPTA Disclosure Document "), or an affidavit
of Seller certifying that the provisions of IRPTA do not apply to the
subject purchase and sale of the Property;
(d) A water certificate issued by the Water Commissioner for the City of
Chicago, Illinois, in satisfaction of the requirement set forth in
Item 7(a) of Schedule B-Section I of the Title Commitment;
(e) Affidavit from the Seller as to the amount of the commission due to
EASTDIL REALTY on the sale of the Property (the "Seller's Commission
Statement");
1
<PAGE>
(f) Affidavit and lien waiver from MIGLIN-BEITLER MANAGEMENT COMPANY,
Seller's property manager for the Property, waiving any and all liens
or claims of lien for leasing commissions or other sums due or payable
in connection with the leasing and management of the Property through
and including July 8, 1998; and
(g) ALTA Statement (Owner's Affidavit) and GAP Undertaking, certifying,
among other things, that there are no leases or occupancy agreements
affecting any portion(s) of the Property other than the tenants, as
tenants only, under those certain leases more particularly described
on EXHIBIT "B" attached hereto.
2. PURCHASER'S DEPOSITS. OVERSEAS PARTNERS (MADISON PLAZA) LLC, an
----------------------
Illinois limited liability company ("Purchaser"), by its attorney James W.
Addison, Troutman Sanders LLP, NationsBank Plaza, Suite 5200, 600 Peachtree
Street, N.E., Atlanta, Georgia 30308, Phone: (404) 885-3103, Fax: (404) 885-3995
will deposit or cause to be deposited the sum OF ONE HUNDRED NINETY-TWO MILLION
THREE HUNDRED SIXTY-FIVE THOUSAND NINE HUNDRED SEVENTY-SEVEN AND EIGHTY-ONE/100
DOLLARS ($192,365,977.81).
3. JOINT DEPOSITS. Seller and Purchaser shall jointly deposit or cause
-----------------
to be deposited the following:
(a) Earnest Money in the amount of Two MILLION AND No/100 DOLLARS
($2,000,000.00) plus interest accrued thereon, from Escrow No. 98-
067A, dated as of June 30, 1998, currently being held by Escrowee (the
"Earnest Money");
(b) Closing Statement reflecting agreed prorations, executed by Seller and
Purchaser (the "Closing Statement"); and
(c) Executed Real Estate Transfer Declarations for the State of Illinois,
Cook County and City of Chicago (the "Transfer Declarations").
4. CLOSING. When Escrowee is in receipt of all deposits and Title Insurer
-------
(a) is prepared to issue the Title Policy in the form attached hereto as Exhibit
"A," and (b) is prepared to issue a direct facultative reinsurance agreement in
form satisfactory to Purchaser's counsel, pursuant to which the Title Insurer
shall retain the first $50,000,000.00 of liability under the Title Policy, and
including a direct commitment to Purchaser from Transaction Title Insurance
Company for reinsurance in the amount of $30,000,000.00, together with a direct
commitment to Purchaser from Lawyers Title Insurance Corporation for reinsurance
in the amount of $80,000,000.00 and a direct commitment from First American
Title Insurance Company for reinsurance in the amount of $36,189,000.00; and (c)
Escrowee has received telephonic confirmation from Seller's counsel and
Purchaser's counsel that Seller and Purchaser desire to proceed to closing,
Escrowee is then authorized and directed to proceed as follows:
2
<PAGE>
(a) Purchase $196,189.00 in State of Illinois Transfer Stamps, $98,094.50
in Cook County Transfer Stamps and $1,471,417.50 in City of Chicago
Transfer Stamps and affix to the Deed;
(b) Record the Deed and the IR.PTA Disclosure Document with the Recorder
of Deeds;
(c) Pay Seller's title, recording, Closing, and escrow charges in
connection with this transaction;
(d) Pay Purchaser's title, recording, Closing and escrow charges, in
connection with this transaction;
(e) Pay amounts set forth on Closing Statement;
(f) Deliver the recorded Deed to Purchaser's attorney when available;
(g) Deliver the marked-up Title Commitment to Purchaser's attorney via
facsimile as of the date of any disbursement made hereunder (with the
final Title Policy delivered within 2 weeks thereof).
The escrow fees for this transaction shall be paid in accordance with the
Closing Statement.
5. DUE DATE FOR DEPOSIT. All deposits are to be deposited in escrow
----------------------
no later than July 8, 1998.
6. DEFAULT PROVISIONS. In the event all escrow deposits have not been
------------------
received herein on or before July 8, 1998, Escrowee is hereby authorized and
directed to hold the escrow deposits which have been deposited until Escrowee
has received a written instruction from all parties hereto; provided, however,
that if the sum to be deposited pursuant to Paragraph 2 hereof has been
deposited by Purchaser and either Seller has failed to deposit the items to be
deposited pursuant to Paragraph I or Seller fails to deposit the Closing
Statement as executed by Seller pursuant to Paragraph 3(b) hereof, then, the
Earnest Money, together with the sum deposited pursuant to Paragraph 2 shall be
returned to Purchaser immediately upon request by Purchaser.
7. STANDARD PROVISIONS.
-------------------
(a) If this Escrow Trust Agreement directs Escrowee to continue to comply
with instructions following expiration of a time limit for making a
deposit until demand is received from the other party, and unless
otherwise provided herein, the deposit may be made and accepted at any
time prior to receipt of the demand and the default shall be cured by
said deposit.
(b) No claim of a default shall be valid if the party making same is
itself in default, unless said default is caused by the failure of the
other party to take some action required by this Escrow Trust
Agreement.
3
<PAGE>
(c) Whenever under the terms and provisions of the Escrow Trust Agreement
the time for performance of a condition falls upon a Saturday, Sunday
or holiday, such time for performance shall be extended until the next
business day.
(d) Amendments to this Escrow Trust Agreement must be in writing
executed by the parties hereto and shall be considered the same as
this Escrow Trust Agreement.
(e) Seller and Overseas Partners Capital Corp. have heretofore entered
into a Purchase and Sale Agreement, dated as of June 30, 1998, as the
interest of the "purchaser" thereunder has been assigned to Purchaser
(said agreement, as so assigned, is herein referred to as the
"Contract") pertaining to the transaction to be consummated under this
Escrow Trust Agreement and covering the Property. This Escrow Trust
Agreement shall not supersede the terms and provisions contained in
the Contract, and in the event of any conflict or inconsistency, the
ten-ns and provisions of the Contract shall prevail to the extent of
the conflict or inconsistency. It is agreed by the parties hereto,
however, that Escrowee shall be governed solely by the terms and
provisions contained in this Escrow Trust Agreement.
(f) This Escrow Trust Agreement may be executed in multiple counterparts,
and all such executed counterparts shall constitute the same
agreement.
8. DEPOSITS AND INVESTMENTS. Deposits made pursuant to this Escrow Trust
--------------------------
Agreement may be invested on behalf of any party or parties hereto; provided,
that any direction to Escrowee for such investment shall be expressed in writing
and contain the consent of all other parties to this Escrow Trust Agreement, and
also provided that Escrowee is in receipt of the taxpayer's identification
number and investment forms as required. Escrowee will, upon request, furnish
information concerning its procedures and fee schedules for investment.
Except as to deposits of funds for which Escrowee has received express
written direction concerning investment or other handling, the parties hereto
agree that Escrowee shall be under no duty to invest or reinvest any deposits at
any time held by it hereunder; and, further, that Escrowee may commingle such
deposits with other deposits or with its own funds in the manner provided for
the administration of funds under Section 2-8 of the Corporate Fiduciary Act
(111. Rev. Stat. ch. 17, par. 1551 - 1) and may use any part or all such funds
for its own benefit without obligation to any party for interest or earnings
derived thereby, if any. Provided, however, nothing herein shall diminish
Escrowee's obligation to apply the full amount of the deposits in accordance
with the terms of this Escrow Trust Agreement.
In the event Escrowee is requested to invest deposits hereunder, Escrowee
shall not be held responsible for any loss of principal or interest that may be
incurred as a result of making the investments or redeeming said investment for
the purpose of this Escrow Trust Agreement.
By:
By: /s/ James W. Addison
Ira J. Swidler James W. Addison
Attorney for Seller Attorney for Purchaser
4
<PAGE>
(c) Whenever under the terms and provisions of the Escrow Trust Agreement
the time for performance of a condition falls upon a Saturday, Sunday
or holiday, such time for performance shall be extended until the next
business day.
(d) Amendments to this Escrow Trust Agreement must be in writing executed
by the parties hereto and shall be considered the same as this Escrow
Trust Agreement.
(e) Seller and Overseas Partners Capital Corp. have heretofore entered into
a Purchase and Sale Agreement, dated as of June 30, 1998 as the
interest of the `purchaser', thereunder has been assigned to Purchaser
(said agreement, as so assigned, is herein referred to as the
"Contract') pertaining to the transaction to be consummated under this
Escrow Trust Agreement and covering the Property. This Escrow Trust
Agreement shall not supersede tile terms and Provisions contained in
the Contract, and in the event of any conflict or inconsistency, the
terms and provisions of the Contract shall prevail to the extent of the
conflict or inconsistency. It is agreed by the parties hereto, however,
that Escrowee shall be governed solely by the terms and provisions
contained in this Escrow Trust Agreement.
(f) This Escrow Trust Agreement may be executed in multiple counterparts,
and all such executed counterparts shall constitute the same agreement.
8. DEPOSITS AND INVESTMENTS. Deposits made pursuant to this Escrow Trust
------------------------
Agreement may be invested on behalf of any party or parties hereto; provided,
that any direction to Escrowee for such investment shall be expressed in
writing and contain the consent of all other parties to this Escrow Trust
Agreement, and also provided that Escrowee is in receipt of the taxpayer's
identification number and investment forms as required. Escrowee will, upon
request, furnish information concerning its procedures and fee schedules for
investment.
Except as to deposits of funds for which Escrowee has received express
written direction concerning investment or other handling, the parties hereto
agree that Escrowee shall be under no duty to invest or reinvest any deposits
at any time held by it hereunder; and, further, that Escrowee may commingle
such deposits with other deposits or with its own funds in the manner provided
for the administration of funds under Section 2-8 of the Corporate Fiduciary
Act (I11. Rev. Stat. ch. 17, par. 1551-1) and may use any part or all such
funds for its own benefit without obligation to any party for interest or
earnings derived thereby, if any. Provided, however, nothing herein shall
diminish Escrowee's obligation to apply the full amount of the deposits in
accordance with the terms of this Escrow Trust Agreement.
In the event Escrowee is requested to invest deposits hereunder, Escrowee
shall not be held responsible for any loss of principal or interest that may be
incurred as a result of making the investments or redeeming said investment for
the purpose of this Escrow Trust Agreement.
By: /s/ Ira J. Swidler
Attorney for Seller
By: /s/ James W. Addison
Attorney for Purchaser
5
<PAGE>
ACCEPTED this 8th day of July, 1998:
COMMONWEALTH LAND TITLE INSURANCE COMPANY
By: /s/ Martha E. McCall
Name: Martha E. McCall
Title: Authorized Agent
6
<PAGE>
EXHIBIT "A"
PROFORMA OWNER'S TITLE INSURANCE POLICY
7
<PAGE>
COMMONWEALTH
PROFORMA OWNER'S POLICY
COMMONWEALTH LAND TITLE INSURANCE COMPANY
SCHEDULE A
AMOUNT OF INSURANCE: $196,189,000.00 Policy Number: Proforma
DATE OF POLICY: Date of Recording File No. H455-1295
1. NAME OF INSURED:
Overseas Partners (Madison Plaza) LLC
2. THE ESTATE OR INTEREST IN THE LAND DESCRIBED IN THIS SCHEDULE AND WHICH IS
COVERED BY THIS POLICY IS FEE SIMPLE AND IS AT DATE OF POLICY VESTED IN:
Overseas Partners (Madison Plaza) LLC
3. THE LAND REFERRED TO IN THIS POLICY IS DESCRIBED IN THE SAID INSTRUMENT, IS
SITUATED IN THE COUNTY OF COOK, STATE OF ILLINOIS, AND IS IDENTIFIED AS
FOLLOWS:
See Schedule A, Legal Description attached hereto.
Countersigned: PRO FORMA
Authorized Officer
Proforma Owner's Policy (10-17-92)
Schedule A
Issued By: Commonwealth Land Title Insurance Company
312-641-5860
8
<PAGE>
COMMONWEALTH
Commonwealth Land Title Insurance Company File No. H455-1295
Policy No. Proforma
Schedule A
Legal Description
The East 112 of Lot 6 and all of Lots 7 and 6 (all taken as a tract) excepting
from said tract that part taken for widening of Madison Street in Block 54 in
original Town of Chicago in Section 9, Township 39 North, Range 14 East of the
Third Principal Meridian, in Cook County, Illinois.
9
<PAGE>
COMMONWEALTH
Commonwealth Land Title Insurance Company File No. H455-1295
Policy No. Proforma
Schedule B - Part I
1 . Rights and claims of tenants in possession or with rights to possession
as tenants only under unrecorded leases, as shown on the attached rent
roll.
2. General Real Estate Taxes on the land for the year(s) 1997 final
installment, 1998 and subsequent years.
Permanent Tax Index Number(s):
17-09-456-003-0000 (Affects a part of the land)
Note: 1997 first estimated installment in the amount of $800,224.72 is
paid.
17-09-456-019-0000 (Affects a part of the land).
Note: 1997 first estimated installment in the amount of $3,197,606.95
is paid.
Note: 1997 final installment and 1998 taxes are not yet due and
payable.
Note: The Permanent Tax Index Numbers are provided for information
only. You are advised that you should not rely upon these numbers
for the payment of future tax bills and should independently
verify the accuracy thereof.
[ITEM 3 BELOW SUBSEQUENTLY DELETED]
3. NOTE: this is a pro forma policy, and is subject to all matters of
title clearance, underwriting, closing and recording, not yet completed; and is
not a guarantee, at this time, to issue the policy in the form shown herein.
proforma owner's Policy (10-17-92)
Schedule B
10
<PAGE>
COMMONWEALTH
Commonwealth Land Title Insurance Company File No. H455-1295
Policy No. Proforma
SURVEY - IDENTICALITY ENDORSEMENT
---------------------------------
The said Policy is hereby amended in the following manner:
The Company hereby insures the insured against loss or damage which the Insured
shall sustain by reason of any inaccuracy in the following assurance:
The land described in Schedule A hereof is the same as that delineated on the
plat of survey made by Chicago Guarantee Survey Co., dated May 7, 1998 (and
last revised July 2, 1998), Number 9802014.
The total liability of the Company under said Policy and any endorsements
attached thereto shall not exceed, in the aggregate, the face amount of said
Policy and cost which the Company is obligated under the provisions of said
Policy to pay.
This endorsement is made a part of said Policy and is subject to the exclusions,
schedules, endorsements conditions, stipulations and terms thereof, except as
modified by the provisions hereof.
Nothing herein contained shall be construed as extending or changing the
effective date of said Policy, unless otherwise expressly stated.
IN WITNESS WHEREOF COMMONWEALTH LAND TITLE INSURANCE COMPANY has caused its
corporate name and seal to be hereunto affixed by its duly authorized officers
on the day of 19
COMMONWEALTH LAND TITLE INSURANCE COMPANY
PROFORMA
Authorized Signature
11
<PAGE>
COMMONWEALTH
Commonwealth Land Title Insurance Company File No. H455-1295
Policy No. Proforma
ACCESS - CONTIGUITY TO PUBLIC WAYS ENDORSEMENT
- ----------------------------------------------
The said Policy is hereby amended in the following manner:
The Company hereby insures the Insured against loss or damage which the
insured shall sustain by reason of any inaccuracy in the following
assurance.
Said land is contiguous to the physically open street(s) known as:
Calhoun Place, Wells Street and Madison Street
and there is legal access between said land and the duly dedicated public
street(s) known as:
Calhoun Place, Wells Street and Madison Street
The total liability of the Company under said Policy and any endorsements
attached thereto shall not exceed, in the aggregate, the face amount of said
Policy and costs which the Company is obligated under the provisions of said
Policy to pay.
This endorsement is made a part of said policy and is subject to the exclusions,
schedules, endorsements conditions, stipulations and terms thereof, except as
modified by the provisions hereof.
Nothing herein contained shall be construed as extending or changing the
effective date of said Policy, unless otherwise expressly stated.
IN WITNESS WHEREOF COMMONWEALTH LAND TITLE INSURANCE COMPANY has caused its
corporate name and seal to be hereunto affixed by its duly authorized officers
on the day of 19 .
COMMONWEALTH LAND TITLE INSURANCE COMPANY
PROFORMA
Authorized Signature
12
<PAGE>
COMMONWEALTH
Commonwealth Land Title Insurance Company File No. H455-1295
Policy No. Proforma
CONTIGUITY ENDORSEMENT - LOTS
-----------------------------
To be annexed to and form a part of Commitment/Policy Number H455-1295 insuring
as set forth in said Commitment/Policy.
The said Commitment/Policy is hereby amended in the following manner:
The Company hereby insures the insured against loss or damage which the insured
shall sustain by reason of any inaccuracies in the following assurances:
The land described in Schedule A, Including the lots or portions of lots
described therein, taken as a tract, comprises one contiguous parcel of
land with no gaps or gores.
The total liability of the Company under said Policy and any endorsements
attached thereto shall not exceed, in the aggregate, the face amount of said
Policy and costs which the Company is obligated under the provisions of said
Policy to pay.
This endorsement is made a part of said Policy and is subject to the exclusions,
schedules, endorsements conditions, stipulations and terms thereof, except as
modified by the provisions hereof.
Nothing herein contained shall be construed as extending or changing the
effective date of said Policy, unless otherwise expressly stated.
IN WITNESS WHEREOF COMMONWEALTH LAND TITLE INSURANCE COMPANY has caused its
corporate name and seal to be hereunto affixed by its duly authorized officers
on the day of , 19 .
COMMONWEALTH LAND TITLE INSURANCE COMPANY
PROFORMA
Authorized Signature
13
<PAGE>
COMMONWEALTH
Commonwealth Land Title Insurance Company File No. H455-1295
Policy No. Proforma
COMPREHENSIVE - OWNER ENDORSEMENT
---------------------------------
The Company hereby insures the insured against loss which said Insured shall
sustain by reason of any of the following matters:
1. Any incorrectness in the assurance which the Company hereby gives:
(a) That, except as shown in Schedule B, there are no present violations on
said land of any enforceable covenants, conditions, or restrictions;
(b) That, except as shown in Schedule B, there are no encroachments of
buildings, structures, or improvements located on said land onto adjoining
lands, nor any encroachments onto said land of buildings, structures, or
improvements located on adjoining lands.
2. Any future violations on said land of any covenants, conditions, or
restrictions provided such violations result in forfeiture or reversion of
title to said land.
3. Damage to existing improvements which are located or encroach upon that
portion of the land subject to any easement shown in Schedule B, which damage
results from the exercise of the right to use or maintain such easement for
the purposes for which the same was granted or reserved.
4. Any final court order or judgment requiring removal from any land adjoining
said land of any encroachment shown in Schedule 13.
As used in this endorsement, the words covenants, conditions and restrictions
shall not be deemed to refer to or include any covenant, condition or
restriction relating to environmental protection or regulating or prohibiting
the use, storage or release of hazardous or toxic waste or substances on the
land. Wherever In this endorsement any or the words "covenants, conditions or
restrictions" appear, they shall not be deemed to refer to or include the terms
covenants and conditions contained in any lease referred to in Schedule A.
The total liability of the Company under said Policy and any endorsements
attached thereto shall not exceed, in the aggregate, the face amount of said
Policy and costs which the Company is obligated under the provisions of said
Policy to pay.
This endorsement is made a part of said Policy and is subject to the exclusions,
schedules, endorsements, conditions, stipulations and terms thereof, except as
modified by the Provisions hereof.
Nothing herein contained shall be construed as extending or changing the
effective date of said Policy, unless otherwise expressly stated.
IN WITNESS WHEREOF COMMONWEALTH LAND TITLE INSURANCE COMPANY has caused its
corporate name and seal to be hereunto affixed by its duly authorized officers
on the day of , 19.
14
<PAGE>
COMMONWEALTH LAND TITLE INSURANCE COMPANY
PROFORMA
Authorized Signature
15
<PAGE>
COMMONWEALTH
Commonwealth Land Title Insurance Company File No. H455-1295
Policy No. Proforma
ALTA 3.1 ZONING - IMPROVED PROPERTY
-----------------------------------
The said Policy is hereby amended in the following manner:
1. The Company insures the insured against loss or damage sustained by reason
of any incorrectness in the assurance that, at Date of Policy:
(a) According to applicable zoning ordinances and amendments thereto, the
land is classified Zone B 7-7 General Central Business District.
(b) The following use or uses are allowed under that classification subject
to compliance with any conditions, restrictions, or requirements contained
in the zoning ordinances and amendments thereto, including but not limited
to the securing of necessary consents or authorizations as a prerequisite to
the use or uses:
Offices, Business and Professional, including Retail and Restaurant
Facilities.
2. The Company further insures against loss or damage arising from a final
decree of a court of competent jurisdiction
(a) prohibiting the use of the land, with any structure presently located
thereon, as specified in paragraph 1 (b); or
(b) requiring the removal or alteration of the structure on the basis that,
at Date of Policy, the ordinances and amendments thereto have been violated
with respect to any of the following matters:
(i) Area, width or depth of the land as a building site for the
structure:
(ii) Floor space area of the structure;
(iii) Setback of the structure from the property lines of the land;
(iv) Height of the structure; or
(v) Provisions for on-site parking.
There shall be no liability under this endorsement based on the invalidity of
the ordinances, and amendments thereto until after a final decree of a court of
competent jurisdiction adjudicating the invalidity, the effect of which is to
prohibit the use or uses.
Loss or damage as to the matters insured against this endorsement shall not
include loss or damage sustained or incurred by reason of the refusal of any
person to purchase, lease or lend money on the estate or interest covered by
this policy.
16
<PAGE>
The total liability of the Company under said Policy and any endorsements
attached thereto shall not exceed, in the aggregate, the face amount of said
policy and cost which the Company is obligated under the provisions of said
Policy to pay.
17
<PAGE>
COMMONWEALTH
Commonwealth Land Title Insurance Company File No. H455-1295
Policy No. Proforma
This endorsement is made a part of said Policy and is subject to the exclusions,
schedules, endorsements, conditions, stipulations and terms thereof, except as
modified by the provisions hereof.
Nothing herein contained shall be construed as extending or changing the
effective date of said Policy, unless otherwise expressly stated.
IN WITNESS WHEREOF COMMONWEALTH LAND TITLE INSURANCE COMPANY has caused its
corporate name and seal to be hereunto affixed by its duly authorized officers
on the day of , 19 .
COMMONWEALTH LAND TITLE INSURANCE COMPANY
PROFORMA
Authorized Signature
18
<PAGE>
EXHIBIT "B"
SCHEDULE OF TENANT LEASES
19
<PAGE>
MADISON PLAZA LEASE FILE AUDIT
27 Jun 98
10:08 AM
<TABLE>
<CAPTION>
SUITE TENANT DOCUMENT DOCUMENT DATE
- -----------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
2800 3077 W. Jefferson Corp. Lease Agreement August 4, 1993
- -----------------------------------------------------------------------------------------------------------------------
1835 Accuword International of Illinois, Inc. Lease Agreement March 2, 1992
First Amendment December 10, 1993
Termination Agreement March 19, 1998
- -----------------------------------------------------------------------------------------------------------------------
220 Acculingua of Illinois, Inc. Lease Agreement March 19, 1998
- -----------------------------------------------------------------------------------------------------------------------
230 Accuworrld, LLC Lease Agreement March 19, 1998
- -----------------------------------------------------------------------------------------------------------------------
520 Addeco Employment Services, Inc. Lease Agreement May 29, 1997
- -----------------------------------------------------------------------------------------------------------------------
2400 & 2500 Baird & Warner, Inc. Lease Agreement July 25, 1984
Lease Amendment Undated
Settlement Agreement July 20, 1994
Second Amendment July 20, 1994
- -----------------------------------------------------------------------------------------------------------------------
3510 Baker, Fentress & Company Lease Agreement July 1, 1983
Lease Amendment July 1, 1983
First Amendment July 25, 1989
Second Amendment October, 1991
Third Amendment September 5, 1995
- -----------------------------------------------------------------------------------------------------------------------
2610 Barnes & Thornburg Lease Agreement August 31, 1994
First Amendment May 23, 1995
Second Amendment June 9, 1995
Third Amendment January 22, 1996
Fourth Amendment October 25, 1996
Fifth Amendment January 15, 1997
Sixth Amendment September 8, 1997
Seventh Amendment October 14, 1997
- -----------------------------------------------------------------------------------------------------------------------
1020 Bear Stearns & Co., Inc. Lease Agreement December 12, 1997
First Amendment February 27, 1998
- -----------------------------------------------------------------------------------------------------------------------
2670 Benefits Communication Corporation Lease Agreement March 2, 1995
First Amendment December 18, 1995
- -----------------------------------------------------------------------------------------------------------------------
2040 Birndorf & Birndorf, P.C. Lease Agreement May 30, 1995
- -----------------------------------------------------------------------------------------------------------------------
460 Bradley University Lease Agreement July 18, 1995
- -----------------------------------------------------------------------------------------------------------------------
1910 James Brown & Associates, Ltd. Lease Agreement February 18, 1993
James Brown & Associates, Ltd. Storage Agreement July 6, 1995
- -----------------------------------------------------------------------------------------------------------------------
3540 Donald Brenner/dba The Brenner Group Lease Agreement July 1, 1993
- -----------------------------------------------------------------------------------------------------------------------
</TABLE>
20
<PAGE>
MADISON PLAZA LEASE FILE AUDIT
27 Jun 98
10:08 AM
<TABLE>
<CAPTION>
SUITE TENANT DOCUMENT DOCUMENT DATE
- ------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Letter Agreement June 11, 1998
- ------------------------------------------------------------------------------------------------------------------------------
2300 Canadian Imperial Bank of Commerce Lease Agreement September 14, 1984
First Amendment September 14, 1984
Second Amendment May, 1990
Third Amendment February 2, 1995
- ------------------------------------------------------------------------------------------------------------------------------
1950 Canmann Chaiken Rosenblum Vandenberg & Smith Lease Agreement October 20, 1992
- ------------------------------------------------------------------------------------------------------------------------------
2010 The Carson Group, Inc. Lease Agreement August 5, 1997
First Amendment January 29, 1998
- ------------------------------------------------------------------------------------------------------------------------------
2175 Cernek, Thomas P. & Cernek, Jeffrey T. Lease Agreement March 26, 1996
- ------------------------------------------------------------------------------------------------------------------------------
3440 Centura Software Corporation Lease Agreement July 15, 1996
First Amendment August 1, 1996
- ------------------------------------------------------------------------------------------------------------------------------
2000 Chicago Capital, Inc Lease Agreement September 1, 1995
Parking Agreement January 24, 1996
- ------------------------------------------------------------------------------------------------------------------------------
3660 Thomas R. Cirignani & Associates Lease Agreement June 9, 1994
Parking Agreement October 9, 1996
- ------------------------------------------------------------------------------------------------------------------------------
716 Column financial, Inc. Lease Agreement July 9, 1997
- ------------------------------------------------------------------------------------------------------------------------------
2180 Corporate Real Estate Solutions, Inc. Lease Agreement July 16, 1996
- ------------------------------------------------------------------------------------------------------------------------------
470 CPC Electrical Supply Company Lease Agreement September 1, 1996
First Amendment September 1, 1997
- ------------------------------------------------------------------------------------------------------------------------------
600 Dearborn Partners, LLC Lease Agreement June 10, 1997
- ------------------------------------------------------------------------------------------------------------------------------
3550 Decision Quest, Inc. Lease Agreement December 15, 1995
- ------------------------------------------------------------------------------------------------------------------------------
1700 Donaldson Lufkin & Jenrette, Inc. License/Indemnification June 22, 1992
Agreement
Lease Agreement December 29, 1992
First Amendment June 7, 1996
Parking Agreement November 1, 1993
Parking Agreement February 1, 1996
Storage Agreeement (6) December 4, 1996
Parking Agreement October 24, 1996
Second Amendment March 30, 1998
- ------------------------------------------------------------------------------------------------------------------------------
1010 DLJ Long Term Investment Corporation Lease Agreement August 8, 1997
- ------------------------------------------------------------------------------------------------------------------------------
2850 Fact Finders, Inc/dba Loggans & Cox Lease Agreement May 28, 1993
First Amendment July 1, 1993
Second Amendment April 27, 1994
- ------------------------------------------------------------------------------------------------------------------------------
</TABLE>
21
<PAGE>
MADISON PLAZA LEASE FILE AUDIT
27 Jun 98
10:08 AM
<TABLE>
<CAPTION>
SUITE TENANT DOCUMENT DOCUMENT DATE
- -----------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
- -----------------------------------------------------------------------------------------------------------------------
3500 Ferguson Partners LLP Lease Agreement September 9, 1994
Storage Agreement April 15, 1997
- -----------------------------------------------------------------------------------------------------------------------
2100 FMC Corporation Lease Agreement March 3, 1995
FMC Corporation Parking Agreement May 1, 1995
- -----------------------------------------------------------------------------------------------------------------------
472 Richard L. Gerber Lease Agreement December 20, 1993
- -----------------------------------------------------------------------------------------------------------------------
2250 The Grabscheid Group, Ltd. Lease Agreement January 28, 1992
First Amendment February 1, 1997
Second Amendment January 27, 1997
Parking Agreement March 19, 1993
- -----------------------------------------------------------------------------------------------------------------------
900, 1100 The Hartford Fire Insurance Company Lease Agreement February 2, 1984
Letter February 15, 1984
Letter June 19, 1984
Letter June 27, 1984
Exapansion Amendment February 15, 1985
Letter April 29, 1985
Second Amendment February 13, 1987
Third Amendment June 18, 1987
- -----------------------------------------------------------------------------------------------------------------------
The Hartford Fire Insurance Company Fourth Amendment November 9, 1987
Fifth Amendment January 21, 1991
Sixth Amendment March 19, 1992
Parking Agreement April 30, 1987
Letter February 22, 1993
Letter June 15, 1994
Letter June 20, 1995
Amendment to 6/20/95 Letter Undated
- -----------------------------------------------------------------------------------------------------------------------
2450 The Hunter Group, Inc. Lease Agreement March 19, 1997
- -----------------------------------------------------------------------------------------------------------------------
Floors 39-44 Hyatt Corporation Lease Agreement August 4, 1983
First Amendment August 4, 1983
Sign Amendment January 22, 1985
- -----------------------------------------------------------------------------------------------------------------------
3000 Exapansion Amendment May 25, 1988
Letter Agreement February 11, 1998
- -----------------------------------------------------------------------------------------------------------------------
2900 Second Expansion Amendment October, 1998
- -----------------------------------------------------------------------------------------------------------------------
2700 Third Expansion Amendment May 20, 1998
- -----------------------------------------------------------------------------------------------------------------------
</TABLE>
22
<PAGE>
MADISON PLAZA LEASE FILE AUDIT
27 Jun 98
10:08 AM
<TABLE>
<CAPTION>
SUITE TENANT DOCUMENT DOCUMENT DATE
- ------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
- ------------------------------------------------------------------------------------------------------------------------
510 Innovative Network Solutions Corp. Lease Agreement June 1, 1996
Parking Agreement January 2, 1996
- ------------------------------------------------------------------------------------------------------------------------
Lobby Karad Drug Company, Inc. Lease Agreement March 27, 1997
- ------------------------------------------------------------------------------------------------------------------------
1970 Kelley, Drye, & Warren Lease Agreement February 28, 1995
First Amendment April 24, 1998
- ------------------------------------------------------------------------------------------------------------------------
475 Lisa A. Kotrba/DBA Lisa Kotrba & Assoc. Ltd. Lease Agreement February 27, 1996
- ------------------------------------------------------------------------------------------------------------------------
490 Lake Shore Asset Management Lease Agreement January 17, 1997
- ------------------------------------------------------------------------------------------------------------------------
2200 Lazard Freres & Co. Lease Agreement March 31, 1993
Lazard Freres & Co. First Amendment March 28, 1997
Second Amendment August 20, 1997
Assignment of Parking February 20, 1998
- ------------------------------------------------------------------------------------------------------------------------
2780 LSV Asset Management Lease Agreement January 1, 2698
- ------------------------------------------------------------------------------------------------------------------------
2120 Law Offices of Kurt D. Lloyd Lease Agreement November 11, 1996
- ------------------------------------------------------------------------------------------------------------------------
Lobby Madison Group Lease Agreement June 13, 1984
d/b/a Lloyd's Restaurant Lease Amendment June 13, 1984
Second Amendment April 1, 1993
- ------------------------------------------------------------------------------------------------------------------------
760 Mantiss Information Group Lease Agreement January 29, 1998
- ------------------------------------------------------------------------------------------------------------------------
1860 Metropolitan Fiber Systems of Chicago, Inc. Lease Agreement January 15, 1992
First Amendment January 1, 1997
- ------------------------------------------------------------------------------------------------------------------------
410 Mercantile Capital Markets Lease Agreement April 3, 1996
First Amendment December 18, 1996
Second Amendment December 12, 1997
- ------------------------------------------------------------------------------------------------------------------------
2420 MG Metals Corp. Lease Agreement July 17, 1992
First Amendment November 1, 1995
- ------------------------------------------------------------------------------------------------------------------------
3630 Midwest Mortgage Management Co. Lease Agreement May 31, 1996
First Amendment May 20, 1997
- ------------------------------------------------------------------------------------------------------------------------
2050 Miglin-Beitler Management Corp. Lease Agreement December 28, 1987
First Amendment February 28, 1991
Second Amendment July 1, 1994
- ------------------------------------------------------------------------------------------------------------------------
2700 Moran & Company Lease Agreement September 13, 1985
First Amendment September 13, 1985
Second Amendment July 27, 1990
Third Amendment June 12, 1992
- ------------------------------------------------------------------------------------------------------------------------
</TABLE>
23
<PAGE>
MADISON PLAZA LEASE FILE AUDIT
27 Jun 98
10:08 AM
<TABLE>
<CAPTION>
SUITE TENANT DOCUMENT Document Date
- ------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Parking Agreement January 7, 1993
- ------------------------------------------------------------------------------------------------------------------------
14-16 National Futures Association Lease Agreement August 30, 1982
First Amendment August 30, 1982
Option Amendment July 25, 1983
Second Option Amendment June 27, 1984
Second Amendment May 6, 1991
Third Amendment May 31, 1996
- ------------------------------------------------------------------------------------------------------------------------
2805 O'Brien-Frietzberg, Inc. Lease Agreement May 6, 1993
Storage Agreement September 9, 1993
First Amendment January 5, 1996
Second Amendment January 31, 1997
- ------------------------------------------------------------------------------------------------------------------------
1300 Office of Thrift Supervision Lease Agreement March 29, 1995
First Amendment March 30, 1998
- ------------------------------------------------------------------------------------------------------------------------
630 Pacific Advisory Services, Inc. Lease Agreement February 22, 1994
- ------------------------------------------------------------------------------------------------------------------------
420 Price & Associates, Inc. Lease Agreement December 8, 1995
- ------------------------------------------------------------------------------------------------------------------------
Pritzker & Pritzker Lease Agreement January 27, 1982
Lease Amendment January 27, 1982
- ------------------------------------------------------------------------------------------------------------------------
Floors 37 & 38 Lease Assignment July 31, 1986
Letter Agreement November 1986
Agreement November 17, 1988
- ------------------------------------------------------------------------------------------------------------------------
2240 Second Amendment March 20, 1998
Third Amendment February 1, 1993
Fourth Amendment April 8, 1994
- ------------------------------------------------------------------------------------------------------------------------
36th Fifth Amendment August 1, 1994
- ------------------------------------------------------------------------------------------------------------------------
2240 Sixth Amendment December 19, 1995
- ------------------------------------------------------------------------------------------------------------------------
34th Seventh Amendment March 20, 1996
- ------------------------------------------------------------------------------------------------------------------------
Floors 34, 37, 38 Eighth Amendment September 16, 1996
- ------------------------------------------------------------------------------------------------------------------------
3700 Ninth Amendment February 28, 1997
- ------------------------------------------------------------------------------------------------------------------------
Floors 34 * 37 Tenth Amendment March 14, 1997
- ------------------------------------------------------------------------------------------------------------------------
36th Eleventh Amendment April 30, 1997
Parking Agreement July 16, 1997
- ------------------------------------------------------------------------------------------------------------------------
36th Twelfth Amendment September 5, 1997
- ------------------------------------------------------------------------------------------------------------------------
36th Thirteenth Amendment October 28, 1997
- ------------------------------------------------------------------------------------------------------------------------
</TABLE>
24
<PAGE>
MADISON PLAZA LEASE FILE AUDIT
27 Jun 98
10:08 AM
<TABLE>
<CAPTION>
SUITE TENANT DOCUMENT DOCUMENT DATE
- ------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Parking Agreement March 1, 1995
Parking Assignment February 20, 1998
- ------------------------------------------------------------------------------------------------------------------------
400 Professional Market Brokerage, Inc. Lease Agreement January 15, 1997
- ------------------------------------------------------------------------------------------------------------------------
1940 Project Management Associates, Inc. Lease Agreement September 12, 1995
First Amendment May 29, 1998
- ------------------------------------------------------------------------------------------------------------------------
2810 Protocol International, Inc. Lease Agreement June 5, 1997
- ------------------------------------------------------------------------------------------------------------------------
300 Publishers Credit Services, Inc. Lease Agreement March 30, 1998
- ------------------------------------------------------------------------------------------------------------------------
505 RBZ/dba Levin & Greenfield Lease Agreement February 15, 1996
- ------------------------------------------------------------------------------------------------------------------------
3450 Renaissance Capital Group, Inc. Lease Agreement July 11, 1995
- ------------------------------------------------------------------------------------------------------------------------
500 Risch Darlington Associates, Inc. Lease Agreement April 30, 1994
Amendment May 13, 1997
- ------------------------------------------------------------------------------------------------------------------------
3660 River West Consultants Lease Agreement September 24, 1993
Lease Amendment September 2, 1997
- ------------------------------------------------------------------------------------------------------------------------
770 Robbins & Associates Lease Agreement May 23, 1994
First Amendment September 24, 1996
Second Amendment November 15, 1996
- ------------------------------------------------------------------------------------------------------------------------
685 Robbins & Robins, Ltd. Lease Agreement November 24, 1992
- ------------------------------------------------------------------------------------------------------------------------
450 Rub, Peter M. Lease Agreement April 26, 1996
- ------------------------------------------------------------------------------------------------------------------------
3640 Ryan Beck & Co. Lease Agreement May 5, 1997
- ------------------------------------------------------------------------------------------------------------------------
1900 SCA Consulting Lease Agreement August 31, 1996
- ------------------------------------------------------------------------------------------------------------------------
2150 SLP Infoware Lease Agreement October 28, 1996
First Amendment November 1, 1996
- ------------------------------------------------------------------------------------------------------------------------
1975 Sato Travel Lease Agreement February 1, 1995
Parking Agreement December 29, 1995
- ------------------------------------------------------------------------------------------------------------------------
Shared Technology Fairchild Telecom Lease Agreement September 1, 1996
- ------------------------------------------------------------------------------------------------------------------------
2110 Smith Hanley Associates Lease Agreement June 6, 1996
- ------------------------------------------------------------------------------------------------------------------------
2600 Sprint Communications Co., LLP Lease Agreement August 20, 1984
Lease Amendment August 20, 1984
Second Amendment September 27, 1989
Third Amendment February 1, 1994
- ------------------------------------------------------------------------------------------------------------------------
2260 Sullivan, Cotter & Associates, Inc. Lease Agreement March 13, 1992
First Amendment May 1, 1994
Second Amendment February 28, 1997
- ------------------------------------------------------------------------------------------------------------------------
</TABLE>
25
<PAGE>
MADISON PLAZA LEASE FILE AUDIT
27 Jun 98
10:08 AM
<TABLE>
<CAPTION>
SUITE TENANT DOCUMENT DOCUMENT DATE
- ------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
- ------------------------------------------------------------------------------------------------------------------------
31-34 Towers Perrin, Inc. Lease Agreement August 30, 1994
Letter Agreement September 27, 1996
First Amendment October 1, 1996
Second Amendment January 6, 1997
Third Amendment September 29, 1997
Fourth Amendment June 1998
- ------------------------------------------------------------------------------------------------------------------------
590 Trust Consultants, Inc. Lease Agreement October 24, 1997
- ------------------------------------------------------------------------------------------------------------------------
440 Turner, Phillip A. Lease Agreement March 1, 1996
- ------------------------------------------------------------------------------------------------------------------------
Lobby United Airlines, Inc. Lease Agreement November 1, 1996
- ------------------------------------------------------------------------------------------------------------------------
620 Urlaub, Bowen & Associates, Inc. Lease Agreement August 13, 1992
- ------------------------------------------------------------------------------------------------------------------------
200 Vela Insurance Services, Inc. Lease Agreement June 24, 1996
Parking Agreement July 9, 1996
- ------------------------------------------------------------------------------------------------------------------------
2210 Verio Midwest, Inc. Lease Agreement September 30, 1997
- ------------------------------------------------------------------------------------------------------------------------
480 Wong & Knowles, C.P.A., P.C. Lease Agreement February 23, 1996
- ------------------------------------------------------------------------------------------------------------------------
7 Zell Partners, Ltd. Lease Agreement August 12, 1996
- ------------------------------------------------------------------------------------------------------------------------
</TABLE>
26
<PAGE>
BILL OF SALE AND ASSIGNMENT
---------------------------
THIS BILL OF SALE AND ASSIGNMENT (hereinafter referred to as this
"ASSIGNMENT"), made and entered into as of the 8th day of July, 1998, by MADISON
PLAZA VENTURE, an Illinois general partnership (hereinafter referred to as
"SELLER"), for the benefit of OVERSEAS PARTNERS (MADISON PLAZA) LLC, an Illinois
limited liability company (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 June
30th, 1998 between Seller and Overseas Partners Capital Corp., (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. Capitalized terms
not defined herein shall have the meaning as set forth in the Purchase
Agreement.
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 all of Seller's right, title, and interest in the
Personal Property, 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 any right which the Seller may have in the
Intangibles, other than the Operating Agreements.
3. EXCLUSION OF WARRANTIES. Any and all warranties of merchantability or
-------------------------
warranties of fitness for a particular purpose with respect to the Personal
Property being transferred by this Assignment are hereby excluded.
4. SUCCESSORS AND ASSIGNS. This Assignment shall be binding upon and inure
-----------------------
to the benefit of Purchaser and Seller and their respective heirs, legal
representatives, successors and assigns.
<PAGE>
IN WITNESS WHEREOF, Seller has executed this Assignment as of the date first
above written.
MADISON PLAZA VENTURE, an Illinois
general partnership
By: MW Associates, an Illinois general partnership, its Managing Venturer
By: The Equitable Life Assurance Society of the United States, its
Managing Venturer
By: /s/ Michael A. Lunder
Name: Michael A. Lunder
Title: Investment Officer
2
<PAGE>
EXHIBIT A
- ---------
LEGAL DESCRIPTION OF THE LAND
THE EAST 1/2 OF LOT 6 AND ALL OF LOTS 7 AND 8 (ALL TAKEN AS A TRACT) EXCEPTING
FROM SAID TRACT THAT PART TAKEN FOR WIDENING OF MADISON STREET IN BLOCK 54 IN
ORIGINAL TOWN OF CHICAGO IN SECTION 9. TOWNSHIP 39 NORTH, RANGE 14 EAST OF THE
THIRD PRINCIPAL MERIDIAN, IN COOK COUNTY, ILLINOIS
3
<PAGE>
EXHIBIT B
---------
PERSONAL PROPERTY
(SEE ATTACHED)
4
<PAGE>
200 West Madison
Furniture Inventory
Management Office
- -----------------
Desks - mahogany 4
Credenza Tops - mahogany 5
L-shape Reception desk - mahogany 1
Executive Chairs - black leather 4
Conference Room Table 1
Mahogany tables - desk extensions 3
Glass lamp tables 5
Mahogany lamp tables 3
Reception area - mahogany table 1
Guest Chairs - grey fabric 5
Guest Chairs - buff leather 2
Conference room chairs - buff leather 8
Couches - fabric 2
Steno chair 1
2-drawer lateral files 15
5-drawer lateral files 5
Supply cabinet 1
Wall hangings (pictures) 13
Madison Plaza Sign (reception) 1
Microwave 1
First Aid Kit 1
Safe 1
Refrigerator 1
SECURITY OFFICE/CONTROL ROOM
- ----------------------------
Double pedestal desk-formica 1
Work surface - formica 1
2-drawer file cabinets - black 3
2-drawer lateral file cabinet 1
Metal work station table 1
Executive Chair - red cloth 1
Steno chair 1
typing stand 1
NOTE: refrigerator in security office is
personal property of staff
5
<PAGE>
200 West Madison
Furniture Inventory
Engineering Office
- ------------------
Metal desks 2
Executive Chairs - cloth 2
Side chair 1
2-drawer lateral file cabinets - black 3
4-drawer file cabinet 1
cabinets (low profile) 5
Wood credenza top 1
CONFERENCE ROOM
- ---------------
cloth chairs 40
podium 1
flip chart 1
tables - formica (rectangle) 16
tables - formica (corner) metal planters 6
metal planters 2
6
<PAGE>
200 West Madison
Equipment Inventory
MANAGEMENT OFFICE
HP LaserJet 4 Plus 1
HP LaserJet III D 1
Epson Stylus Color 600 1
Compaq Deskpro 486 w/
Magnavox monitor 3
AST Bravo LC 486/66DX
w/ Zeos monitor 1
AST Bravo MS 486/66DX w/
Samsung monitor 1
Typewriter 1
SECURITY OFFICE
Building Automation:
Compaq Deskpro 486 w/
Viewsonic monitor 1
Okidata, microline 320 printer 1
Security Computer:
Digital - drive & monitor 1
Digital LA75 printer 1
Monitors 4
Typewriter 1
Radios - Motorola/GE 24
Repeater & charger for radios
7
<PAGE>
200 West Madison
Equipment Inventory
ENGINEERING OFFICE
- ------------------
Building Automation:
Compaq Deskpro Pentium
w/ Viewsonic monitor 1
Maintenance Computer:
IBM 286 1
HP 820 C LaserJet 1
HP LaserJet 11 1
Gateway 2000 w/ HP
Deskjet 680 owned by
Commonwealth Edison 1
CONFERENCE ROOM
Slide projector & cart 1
Mitsubishi TV (approx. 25") 1
Mitsubishi VCR & cart 1
Overhead projectors 2
one w/ cart 1
8
<PAGE>
200 West Madison
Engineering Attic Stock Inventory
E-4 Storage
Granite curtainwall 77 pieces
E-6 Storage
Misc. Pavers 236 pieces
S-50 Storage
Marble (misc) 92 pieces
Marble (small pieces) 378 pieces
Glass Attic Stock
Double Pane - various sizes 30 pieces
Single Pane 10 pieces
Equipment
Gravely M-12 Snowbrush 12 H 1
Genie Hi-Lift 1
Hydraulic Hand Jack 1
House Window Rig 45-FL 1
9
<PAGE>
EXHIBIT 10(nnnn)
ASSIGNMENT AND ASSUMPTION OF LEASES
THIS ASSIGNMENT AND ASSUMPTION OF LEASES (hereinafter referred to as this
"Agreement"), made and entered into as of the 8th day of July, 1998, by and
between MADISON PLAZA VENTURE, an Illinois general partnership (hereinafter
referred to as "Partnership"), COLE TAYLOR BANK, as Trustee under Trust
Agreement dates September 10, 1980 and known as Trust No. 40649
("Trustee")(Partnership and Trustee herein together called "Seller") and
OVERSEAS PARTNERS (MADISON PLAZA) LLC, an Illinois limited liability company
(hereinafter referred to as "Purchaser".
WITNESSETH:
WHEREAS, Trustee is the legal title owner and Partnership is the beneficial
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, Trustee 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 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 accruing
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 it with regard to said obligations and liabilities assumed by Purchaser
in connection with the Leases.
<PAGE>
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 accruing 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.
4. Counterparts. This Agreement may be executed in counterparts, and all
such executed counterparts shall constitute the same agreement.
5. Trustee Exculpation. This Agreement is executed by COLE TAYLOR BANK,
not personally, but as Trustee as aforesaid, in the exercise of power and
authority conferred upon and vested in it as Trustee, and under the express
direction of the beneficiaries of the said Trust. It is expressly understood
and agreed that nothing herein shall be construed as creating any liability
whatsoever against said Trustee personally; and in particular, without limiting
the generality of the foregoing, there shall be no personal liability to pay any
indebtedness accruing hereunder or to perform any covenant, either express or
implied, herein contained, or to keep, preserve, or sequester any property of
said Trust, and that all personal liability of said Trustee of every sort, if
any, is hereby expressly waived by said Tenant, and by every person now or
hereafter claiming any right or security hereunder; and that so far as the said
Trustee is concerned, the owner of any indebted ness or liability accruing
hereunder, shall look solely to the assets of said Trust and the proceed thereof
for the payment thereof.
IN WITNESS WHEREOF, Seller and Purchaser have executed this Agreement as of
the date first above written.
SELLER:
MADISON PLAZA VENTURE, an Illinois general
partnership
By: MW Associates, an Illinois general
partnership, its Managing Venturer
By: The Equitable Life Assurance Society of the
United States, its Managing Venturer
By: \s\ Michael Lunder
Name: Michael Lunder
Title: Investment Officer
2
<PAGE>
COLE TAYLOR BANK, as Trustee as aforesaid
By: ??????????
Name:
Title:
PURCHASER
OVERSEAS PARTNERS (MADISON PLAZA) LLC,
an Illinois limited liability company
By: Overseas Partners (Madison Plaza), Inc., a
Delaware corporation, its sole member
By:
Name:
Title:
3
<PAGE>
COLE TAYLOR BANK, as Trustee as aforesaid
By:
Name:
Title:
PURCHASER:
OVERSEAS PARTNERS (MADISON PLAZA) LLC,
an Illinois limited liability company
By: Overseas Partners (Madison Plaza), Inc.,
a Delaware corporation, its sole member
By: /s/ Bruce M. Barone
Name: Bruce M. Barone
Title: President, CEO
4
<PAGE>
EXHIBIT A
LEGAL DESCRIPTION OF THE LAND
THE EAST 1/2 OF LOT 6 AND ALL OF LOTS 7 AND 8 (ALL TAKEN AS A TRACT) EXCEPTING
FROM SAID TRACT THAT PART TAKEN FOR WIDENING OF MADISON STREET IN BLOCK 54 IN
ORIGINAL TOWN OF CHICAGO IN SECTION 9, TOWNSHIP 39 NORTH, RANGE 14 EAST OF THE
THIRD PRINCIPAL MERIDIAN, IN COOK COUNTY, ILLINOIS
5
<PAGE>
EXHIBIT B
LEASES
(SEE ATTACHED)
6
<PAGE>
MADISON PLAZA LEASE FILE AUDIT
<TABLE>
<CAPTION>
27-Jun-98
10:08 AM
<S> <C> <C> <C>
- -----------------------------------------------------------------------------------------------------------------------
SUITE TENANT DOCUMENT DOCUMENT DATE
- -----------------------------------------------------------------------------------------------------------------------
2800 3077 W. Jefferson Corp. Lease Agreement August 4, 1993
- -----------------------------------------------------------------------------------------------------------------------
1835 Accuword International of Illinois, Inc. Lease Agreement March 2, 1992
First Amendment December 10, 1993
Termination Agreement March 19, 1998
- -----------------------------------------------------------------------------------------------------------------------
220 Acculingua of Illinois, Inc. Lease Agreement March 19, 1998
- -----------------------------------------------------------------------------------------------------------------------
230 Accuworld, LLC Lease Agreement March 19, 1998
- -----------------------------------------------------------------------------------------------------------------------
520 Addeco Employment Services, Inc. Lease Agreement May 29, 1997
- -----------------------------------------------------------------------------------------------------------------------
2400 & 2500 Baird & Warner, Inc. Lease Agreement July 25, 1984
Lease Amendment Undated
Settlement Agreement July 20, 1994
Second Amendment July 20, 1994
- -----------------------------------------------------------------------------------------------------------------------
3510 Baker, Fentress & Company Lease Agreement July 1, 1983
Lease Amendment July 1, 1983
First Amendment July 25, 1989
Second Amendment October, 1991
Third Amendment September 5, 1995
- -----------------------------------------------------------------------------------------------------------------------
2610 Barnes & Thornburg Lease Agreement August 31, 1994
First Amendment May 23, 1995
Second Amendment June 9, 1995
Third Amendment January 22, 1996
Fourth Amendment October 25, 1996
Fifth Amendment January 15, 1997
Sixth Amendment September 8, 1997
Seventh Amendment October 14, 1997
- -----------------------------------------------------------------------------------------------------------------------
1020 Bear Stearns & Co., Inc. Lease Agreement December 12, 1997
First Amendment February 27, 1998
- -----------------------------------------------------------------------------------------------------------------------
2670 Benefits Communication Corporation Lease Agreement March 2, 1995
First Amendment December 18, 1995
- -----------------------------------------------------------------------------------------------------------------------
2040 Birndorf & Birndorf, P.C. Lease Agreement May 30, 1995
- -----------------------------------------------------------------------------------------------------------------------
460 Bradley University Lease Agreement July 18, 1995
- -----------------------------------------------------------------------------------------------------------------------
1910 James Brown & Associates, Ltd. Lease Agreement February 18, 1993
James Brown & Associates, Ltd. Storage Agreement July 6, 1995
- -----------------------------------------------------------------------------------------------------------------------
3540 Donald Brenner/dba The Brenner Group Lease Agreement July 1, 1993
- -----------------------------------------------------------------------------------------------------------------------
</TABLE>
7
<PAGE>
MADISON PLAZA LEASE FILE AUDIT
<TABLE>
<CAPTION>
27-Jun-98
10:08 AM
- -----------------------------------------------------------------------------------------------------------------------
SUITE TENANT DOCUMENT DOCUMENT DATE
- -----------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Letter Agreement June 11, 1998
2300 Canadian Imperial Bank of Commerce Lease Agreement September 14, 1984
First Amendment September 14, 1984
Second Amendment May, 1990
Third Amendment February 2, 1995
1950 Canmann Chaiken Rosenblum Vandenberg & Smith Lease Agreement October 20, 1992
2010 The Carson Group, Inc. Lease Agreement August 5, 1997
First Amendment January 29, 1998
2175 Cernek, Thomas P. & Cernek, Jeffrey T. Lease Agreement March 26, 1996
3440 Centura Software Corporation Lease Agreement July 15, 1996
First Amendment August 1, 1996
2000 Chicago Capital, Inc Lease Agreement September 1, 1995
Parking Agreement January 24, 1996
3660 Thomas R. Cirignani & Associates Lease Agreement June 9, 1994
Parking Agreement October 9, 1996
716 Column financial, Inc. Lease Agreement July 9, 1997
2180 Corporate Real Estate Solutions, Inc. Lease Agreement July 16, 1996
470 CPC Electrical Supply Company Lease Agreement September 1, 1996
First Amendment September 1, 1997
600 Dearborn Partners, LLC Lease Agreement June 10, 1997
3550 Decision Quest, Inc. Lease Agreement December 15, 1995
1700 Donaldson Lufkin & Jenrette, Inc. License/Indemnification June 22, 1992
Agreement
Lease Agreement December 29, 1992
First Amendment June 7, 1996
Parking Agreement November 1, 1993
Parking Agreement February 1, 1996
Storage Agreement (6) December 4, 1996
Parking Agreement October 24, 1996
Second Amendment March 30, 1998
1010 DLJ Long Term Investment Corporation Lease Agreement August 8, 1997
2850 Fact Finders, Inc/dba Loggans & Cox Lease Agreement May 28, 1993
First Amendment July 1, 1993
Second Amendment April 27, 1994
</TABLE>
8
<PAGE>
MADISON PLAZA LEASE FILE AUDIT
<TABLE>
<CAPTION>
27-Jun-98
10:08 AM
SUITE TENANT DOCUMENT DOCUMENT DATE
<S> <C> <C> <C>
3500 Ferguson Partners LLP Lease Agreement September 9, 1994
Storage Agreement April 15, 1997
2100 FMC Corporation Lease Agreement March 3, 1995
FMC Corporation Parking Agreement May 1, 1995
472 Richard L. Gerber Lease Agreement December 20, 1993
2250 The Grabscheid Group, Ltd. Lease Agreement January 28, 1992
First Amendment February 1, 1997
Second Amendment January 27, 1997
Parking Agreement March 19, 1993
900, 1100 The Hartford Fire Insurance Company Lease Agreement February 2, 1984
Letter February 15, 1984
Letter June 19, 1984
Letter June 27, 1984
Expansion Amendment February 15, 1985
Letter April 29, 1985
Second Amendment February 13, 1987
Third Amendment June 18, 1987
The Hartford Fire Insurance Company Fourth Amendment November 9, 1987
Fifth Amendment January 21, 1991
Sixth Amendment March 19, 1992
Parking Agreement April 30, 1987
Letter February 22, 1993
Letter June 15, 1994
Letter June 20, 1995
Amendment to 6/20/95 Letter Undated
2450 The Hunter Group, Inc. Lease Agreement March 19, 1997
Floors 39-44 Hyatt Corporation Lease Agreement August 4, 1983
First Amendment August 4, 1983
Sign Amendment January 22, 1985
3000 Expansion Amendment May 25, 1988
Letter Agreement February 11, 1998
2900 Second Expansion Amendment October, 1998
2700 Third Expansion Amendment May 20, 1998
</TABLE>
9
<PAGE>
MADISON PLAZA LEASE FILE AUDIT
<TABLE>
<CAPTION>
27-Jun-98
10:08 AM
SUITE TENANT DOCUMENT DOCUMENT DATE
<S> <C> <C> <C>
510 Innovative Network Solutions Corp. Lease Agreement June 1, 1996
Parking Agreement January 2, 1996
Lobby Karad Drug Company, Inc. Lease Agreement March 27, 1997
1970 Kelley, Drye, & Warren Lease Agreement February 28, 1995
First Amendment April 24, 1998
475 Lisa A. Kotrba/DBA Lisa Kotrba & Assoc. Ltd. Lease Agreement February 27, 1996
490 Lake Shore Asset Management Lease Agreement January 17, 1997
2200 Lazard Freres & Co. Lease Agreement March 31, 1993
Lazard Freres & Co. First Amendment March 28, 1997
Second Amendment August 20, 1997
Assignment of Parking February 20, 1998
2780 LSV Asset Management Lease Agreement January 1, 2698
2120 Law Offices of Kurt D. Lloyd Lease Agreement November 11, 1996
Lobby Madison Group Lease Agreement June 13, 1984
d/b/a Lloyd's Restaurant Lease Amendment June 13, 1984
Second Amendment April 1, 1993
760 Mantiss Information Group Lease Agreement January 29, 1998
1860 Metropolitan Fiber Systems of Chicago, Inc. Lease Agreement January 15, 1992
First Amendment January 1, 1997
410 Mercantile Capital Markets Lease Agreement April 3, 1996
First Amendment December 18, 1996
Second Amendment December 12, 1997
2420 MG Metals Corp. Lease Agreement July 17, 1992
First Amendment November 1, 1995
3630 Midwest Mortgage Management Co. Lease Agreement May 31, 1996
First Amendment May 20, 1997
2050 Miglin-Beitler Management Corp. Lease Agreement December 28, 1987
First Amendment February 28, 1991
Second Amendment July 1, 1994
2700 Moran & Company Lease Agreement September 13, 1985
First Amendment September 13, 1985
Second Amendment July 27, 1990
Third Amendment June 12, 1992
</TABLE>
10
<PAGE>
MADISON PLAZA LEASE FILE AUDIT
<TABLE>
<CAPTION>
27-Jun-98
10:08 AM
SUITE TENANT DOCUMENT DOCUMENT DATE
<S> <C> <C> <C>
Parking Agreement January 7, 1993
14-16 National Futures Association Lease Agreement August 30, 1982
First Amendment August 30, 1982
Option Amendment July 25, 1983
Second Option Amendment June 27, 1984
Second Amendment May 6, 1991
Third Amendment May 31, 1996
2805 O'Brien-Frietzberg, Inc. Lease Agreement May 6, 1993
Storage Agreement September 9, 1993
First Amendment January 5, 1996
Second Amendment January 31, 1997
1300 Office of Thrift Supervision Lease Agreement March 29, 1995
First Amendment March 30, 1998
630 Pacific Advisory Services, Inc. Lease Agreement February 22, 1994
420 Price & Associates, Inc. Lease Agreement December 8, 1995
Pritzker & Pritzker Lease Agreement January 27, 1982
Lease Amendment January 27, 1982
Floors 37 & 38 Lease Assignment July 31, 1986
Letter Agreement November 1986
Agreement November 17, 1988
2240 Second Amendment March 20, 1998
Third Amendment February 1, 1993
Fourth Amendment April 8, 1994
36th Fifth Amendment August 1, 1994
2240 Sixth Amendment December 19, 1995
34th Seventh Amendment March 20, 1996
Floors 34, 37, 38 Eighth Amendment September 16, 1996
3700 Ninth Amendment February 28, 1997
Floors 34 - 37 Tenth Amendment March 14, 1997
36th Eleventh Amendment April 30, 1997
Parking Agreement July 16, 1997
36th Twelfth Amendment September 5, 1997
36th Thirteenth Amendment October 28, 1997
</TABLE>
11
<PAGE>
MADISON PLAZA LEASE FILE AUDIT
<TABLE>
<CAPTION>
27-Jun-98
10:08 AM
SUITE TENANT DOCUMENT DOCUMENT DATE
<S> <C> <C> <C>
Parking Agreement March 1, 1995
Parking Assignment February 20, 1998
400 Professional Market Brokerage, Inc. Lease Agreement January 15, 1997
1940 Project Management Associates, Inc. Lease Agreement September 12, 1995
First Amendment May 29, 1998
2810 Protocol International, Inc. Lease Agreement June 5, 1997
300 Publishers Credit Services, Inc. Lease Agreement March 30, 1998
505 RBZ/dba Levin & Greenfield Lease Agreement February 15, 1996
3450 Renaissance Capital Group, Inc. Lease Agreement July 11, 1995
500 Risch Darlington Associates, Inc. Lease Agreement April 30, 1994
Amendment May 13, 1997
3660 River West Consultants Lease Agreement September 24, 1993
Lease Amendment September 2, 1997
770 Robbins & Associates Lease Agreement May 23, 1994
First Amendment September 24, 1996
Second Amendment November 15, 1996
685 Robbins & Robins, Ltd. Lease Agreement November 24, 1992
450 Rub, Peter M. Lease Agreement April 26, 1996
3640 Ryan Beck & Co. Lease Agreement May 5, 1997
1900 SCA Consulting Lease Agreement August 31, 1996
2150 SLP Infoware Lease Agreement October 28, 1996
First Amendment November 1, 1996
1975 Sato Travel Lease Agreement February 1, 1995
Parking Agreement December 29, 1995
Shared Technology Fairchild Telecom Lease Agreement September 1, 1996
2110 Smith Hanley Associates Lease Agreement June 6, 1996
2600 Sprint Communications Co., LLP Lease Agreement August 20, 1984
Lease Amendment August 20, 1984
Second Amendment September 27, 1989
Third Amendment February 1, 1994
2260 Sullivan, Cotter & Associates, Inc. Lease Agreement March 13, 1992
First Amendment May 1, 1994
Second Amendment February 28, 1997
</TABLE>
12
<PAGE>
MADISON PLAZA LEASE FILE AUDIT
<TABLE>
<CAPTION>
27-Jun-98
10:08 AM
SUITE TENANT DOCUMENT DOCUMENT DATE
<S> <C> <C> <C>
31-34 Towers Perrin, Inc. Lease Agreement August 30, 1994
Letter Agreement September 27, 1996
First Amendment October 1, 1996
Second Amendment January 6, 1997
Third Amendment September 29, 1997
Fourth Amendment June 1998
590 Trust Consultants, Inc. Lease Agreement October 24, 1997
440 Turner, Phillip A. Lease Agreement March 1, 1996
Lobby United Airlines, Inc. Lease Agreement November 1, 1996
620 Urlaub, Bowen & Associates, Inc. Lease Agreement August 13, 1992
200 Vela Insurance Services, Inc. Lease Agreement June 24, 1996
Parking Agreement July 9, 1996
2210 Verio Midwest, Inc. Lease Agreement September 30, 1997
480 Wong & Knowles, C.P.A., P.C. Lease Agreement February 23, 1996
7 Zell Partners, Ltd. Lease Agreement August 12, 1996
</TABLE>
13
<PAGE>
EXHIBIT 10(oooo)
ASSIGNMENT AND ASSUMPTION OF CONTRACTS
- --------------------------------------
THIS ASSIGNMENT AND ASSUMPTION OF CONTRACTS (hereinafter referred to as
this "AGREEMENT"), made and entered into as of the 8th day of July, 1998, by and
between MADISON PLAZA VENTURE, an Illinois general partnership (hereinafter
referred to as "SELLER"), and OVERSEAS PARTNERS (MADISON PLAZA) LLC, an Illinois
limited liability company (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 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 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 all of Seller's right, title and interest in and to the contracts
(hereinafter referred to collectively as the "CONTRACTS") described in Exhibit
-------
"B" attached hereto and by this reference made a part hereof Purchaser hereby
- ---
assumes Seller's obligations and liabilities accruing from and after the date of
this Agreement under the 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 it with regard
to said obligations and liabilities assumed by Purchaser in connection with the
Contracts.
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 Contracts accruing prior to the date of this Agreement.
<PAGE>
3. COUNTERPARTS. This Agreement may be executed in counterparts and all
-------------
such executed counterparts shall constitute the same agreement.
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 and Purchaser have executed this Agreement as of
the date first above written.
SELLER:
-------
MADISON PLAZA VENTURE, an Illinois general
partnership
By: MW Associates, an Illinois general
partnership, its Managing Venturer
By: The Equitable Life Assurance Society of
the United States, its Managing
Venturer,
By: /s/ Michael A. Lunder
Name: Michael A. Lunder
Title: Investment Officer
PURCHASER:
----------
OVERSEAS PARTNERS (MADISON PLAZA) LLC, an Illinois
limited liability company
By: Overseas Partners (Madison Plaza), Inc., a
Delaware corporation, its sole member
By:
Name:
Title:
2
<PAGE>
COLE TAYLOR BANK, as Trustee as aforesaid
By:
Name:
Title:
PURCHASER:
----------
OVERSEAS PARTNERS (MADISON PLAZA) LLC, an Illinois
limited liability company
By: Overseas Partners (Madison Plaza), Inc., a
Delaware corporation, its sole member
By: /s/ Bruce M. Barone
Name: Bruce M. Barone
Title: President, CEO
3
<PAGE>
EXHIBIT A
---------
LEGAL DESCRIPTION OF THE LAND
THE EAST 1/2 OF LOT 6 AND ALL OF LOTS 7 AND 8 (ALL TAKEN AS A TRACT) EXCEPTING
FROM SAID TRACT THAT PART TAKEN FOR WIDENING OF MADISON STREET IN BLOCK 54 IN
ORIGINAL TOWN OF CHICAGO IN SECTION 9. TOWNSHIP 39 NORTH, RANGE 14 EAST OF THE
THIRD PRINCIPAL MERIDIAN, IN COOK COUNTY, ILLINOIS
4
<PAGE>
EXHIBIT B
---------
CONTRACTS
(SEE ATTACHED)
5
<PAGE>
MADISON PLAZA
SERVICE CONTRACTS
<TABLE>
<CAPTION>
- -------------------------------------------------------------------------------------------------------------------------
CONTRACT MP DATE
TYPE OF WORK CONTRACTOR TERM AMOUNT AG BLD REMARKS
- -------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
Building Siebe UNDER WARRANTY No 3/97 System still under warranty
Automation System 950 Business Contract will be made in
Center Drive fall 1998.
Mount Prospect, IL
60056
Phone: 847.803.2345
Fax: 847.803.2898
- -------------------------------------------------------------------------------------------------------------------------
Chiller Carrier Corporation 8/1/95-7/31/98 Cost:
Maintenance 8350 Madison Street Renewal: =$3,604/month Yes * Contract is Madison
Suite 5 M-T-M Plaza's Continuing
Burr Ridge, IL Cancellation Service Agreement.
60521 Option: *Contractor is the
Contact: Hank Witek Cancellation manufacturer of the
Phone: 630.986.4265 w/cause, equipment. We are
Fax: 630.986.4271 30 days prior reviewing our option
written notice. relating to CFCs and this
notice. contract will be reviewed
at that time.
- -------------------------------------------------------------------------------------------------------------------------
Elevator Otis Elevator 3/1/95-2/28/00 Cost:
Maintenance Company Renewal: =$26,036/month No 1/95 *Contract is Otis'
700 S. Clinton auto one year (paid quarterly) Extended Term
Chicago, IL 60607 renewals Coverage with Madison
Contact: Scott Cancellation Plaza's
McGuire Option: Maintenance Agreement as an
Phone: 312.454.1616 60 days written Addendum.
Fax: 312.939.5624 notice prior to
end of term, or 15
days notice with
cause.
- -------------------------------------------------------------------------------------------------------------------------
Elevator Package Siebe 8/1/94-7/31/95 Cost:
Units 950 Business Renewal: =$2,001 quarterly Yes 7/94 Contract is Madison
Center Dr. M-T-M Plaza's Continuing
Mount Prospect, IL Cancellation Service Agreement.
60056 Option:
Contact: Ralph Cancellable w/10 Seven days prior written
Pfiefer days prior notice in event
Phone: 708.803.2345 written notice. a sale.
Fax: 708.803.2898
- -------------------------------------------------------------------------------------------------------------------------
Copier (Lease) Modern Business 3/4/96-3/3/99 Cost:
Systems Renewal: $408.94 monthly No 3/96
P.O. Box 1144 None
Jefferson City, MO Cancellation
65102 Option:
Contact: Sheri None
Daneshmand
Phone: 314.634.1800
- -------------------------------------------------------------------------------------------------------------------------
Fax Machine Danka Omnifax 2/1/96-present Cost:
(Maintenance) 1105 Remington Road Renewal: $252.00/annum No 2/96
Schaumburg, IL M-T-M
60173 Cancellation
Contact: Doug Option:
Taylor Cancellable w/30
days prior written
notice.
- -------------------------------------------------------------------------------------------------------------------------
Fire/Life Safety Securitylink from 1/1/94-12/31/99 Cost:
Equip. Ameritech Renewal: =$582.32 No 12/93 Due to the sensitive
Monitoring 7280 W. Devon Ave. 5-year term quarterly nature of this contra
Chicago, IL 60631 unless we we are using the
Contact: Thomas notify vendor contractor's form.
Warha w/in 30 days
Phone: 773.775.8600 of the term exp.
Fax: 773.775.6869 Cancellation
Option:
None
- -------------------------------------------------------------------------------------------------------------------------
Fire/Life Safety Edwards 10/1/95-9/30/96 Cost:
Equip. 18W 100 22nd St. Renewal: =$8,500 annually Yes 10/95 New contract to comply
Testing Suite 102 M-T-M $708.33/month with City code.
Oak Brook Terrace, Cancellation
IL 60181 Option:
Contact: Tom Lai Cancellable w/30 Seven day termination in
Phone: 800.873.3392 days prior event of sale.
Fax: 708.916.1289 written notice.
- -------------------------------------------------------------------------------------------------------------------------
HVAC-Pneumatic Siebe 1/12/90-MTM Cost:
Control 950 Business Renewal: =$3,250 quarterly No 7/94 New contract in process to
Center Dr. M-T-M cover new
Mount Prospect, IL Cancellation building automation system.
60056 Option:
Contact: Brad Smith Cancellable w/60
Phone: 708.803.2345 days prior
Fax: 708.803.2898 written notice
- -------------------------------------------------------------------------------------------------------------------------
Janitorial Lakeside Building 12/9/96-12/8/97 Cost:
Services Maint. Renewal: =contractor's Yes 10/96 Contract includes labor +
155 N. Wacker Dr. M-T-M cost plus payroll costs. Maintenance
Chicago, IL 60606 Cancellation $3,000/mo. Fee and supply of equipment
Contact : Nick Option: and tenant services to be
Baker Cancellable w/10 billed through the
Phone: 312.541.0050 days prior building.
Fax: 312.541.0307 written notice
during MTM term.
- -------------------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
MADISON PLAZA
SERVICE CONTRACTS
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------
CONTRACT MP DATE
TYPE OF WORK CONTRACTOR TERM AMOUNT AG BLD REMARKS
- ------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
Landscaping The Brickman Group 4/15/98-10/15/98 Cost:
Exterior 2745 N. Elston Ave. Renewal: =$2,150/year Yes 11/97 Contract is Madison
Chicago, IL 60647 M-T-M Plaza's Continuing
Contact: Doug Cancellation Service Agreement.
Krause Option:
Phone: 773.252.7980 Cancellable w/30
Fax: 773.252.8026 days prior
written notice.
- ------------------------------------------------------------------------------------------------------------------------
Landscaping Rentokil 4/29/98-4/30/99 Yes 1/97 Contract is Madison
Interior 203 N. Wabash, #400 Renewal: Plaza's Continuing
Chicago, IL M-T-M Lobby & OOB: Service Agreement.
60601-2410 Cancellation =$1084.89/month
Contact: Jill Option: AWAITING FINAL EXECUTION OF
Veech Cancellable w/30 AGREEMENT.
Phone: 312-704-2100 days prior
Fax: 312-782-0356 written notice.
- ------------------------------------------------------------------------------------------------------------------------
Metal Maintenance Program Metal 6/1/97-5/31/2000 Cost:
Maintenance Renewal: $601.84/month Yes 4/98 Contract is Madison
2850 W. Fulton M-T-M extra services Plaza's Continuing
Chicago, IL Cancellation billed Service Agreement.
60612-1706 Option: at $36/hour
Contact: Al Cancellable w/30
Schlegel days prior
Phone: 773-533-5100 written notice.
Fax: 773-533-3088
- ------------------------------------------------------------------------------------------------------------------------
Mobile Phone Cellular One 9/30/96-9/29/98 Cost:
Area Wide Cellular Renewal: $11.75 + charges No 9/96
930 National M-T-M based
Parkway Cancellation on usage.
Schaumburg, IL Option:
60173 None.
Phone: 800.CELLONE
- ------------------------------------------------------------------------------------------------------------------------
Pagers Paging Network of 4/4/97-1/26/97 Cost:
Illinois Renewal: $100.50 monthly No n/a
3 Westbrook M-T-M
Corporate Ctr. Cancellation
Suite 300 Option:
Westchester, IL Yes, after
60154 expiration date.
Phone: 708.409.1100
- ------------------------------------------------------------------------------------------------------------------------
Pay Phone Sprint/PublicFON 1/27/97-1/26/97 Cost:
P.O. Box 569700 Renewal: LL to receive No 1/97
Dallas, Texas 75356 Auto one year commissions on
Phone: 800-326-2580 terms. pay
Cancellation phone.
Option:
30 days prior to
end of term.
- ------------------------------------------------------------------------------------------------------------------------
Pest Control C&C Pest Control 9/15/96-9/14/97 Cost:
348 E. North Ave. Renewal: $1,950/year Yes 8/96 Contractor sprays every 14
Northlake, IL 60164 M-T-M days on W/F
Contact: Tom Cancellation Tenant minimum is $25 per
Martinico Option: call
Phone: 708.562.3535 Cancellable w/10
Fax: 708.562.3755 days prior
written notice
during MTM term.
- ------------------------------------------------------------------------------------------------------------------------
Postage Meter Pitney & Bowes 11/1/96-4/30/01 Cost:
201 Merritt Seven Renewal: $327 per quarter No n/a
Norwalk, CT 06856 None
Contact: S.J. Cancellation
Bellofatto Option:
Phone: 800.451.0412 None
- ------------------------------------------------------------------------------------------------------------------------
Portable Radios United Radio 5/1/95-present Cost:
Comm., Inc. Renewal: =$363.60 Yes 5/95
317 West Illinois M-T-M quarterly
St. Ste. A Cancellation Equipment:
St. Charles, IL Option: 21 Motorola
60174 Cancellable w/30 radios.
Contact: Gary Kuzel days prior 3 GE radios.
Phone: 708.430.5800 written notice. Repeater &
Fax: 708.233.5820 chargers
on T&M basis.
- ------------------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
MADISON PLAZA
SERVICE CONTRACTS
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------
CONTRACT MP DATE
TYPE OF WORK CONTRACTOR TERM AMOUNT AG BLD REMARKS
- ------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
Security Cameras Phoenix Systems &
Service SECURITY CAMERAS ARE
722 Foster Avenue CURRENTLY UNDER WARRANTY.
Bensenville, IL NEGOTIATING SERVICE
60106 CONTRACT FOR NEW AND
Contact: Ken Rupp EXISTING EQUIP.
Phone: 630.860.9501
Fax: 630.860.8905
- ------------------------------------------------------------------------------------------------------------------------
Security Card Phoenix Systems 5/1/97-4/30/98
Access 722 Foster Ave. Renewal: Cost:
Bensenville, IL M-T-M $8,500 annually, Yes Madison Plaza Continuing
60106 Cancellation $2,125/qtr. Service
Contact: Ken Rupp Option: Agreement
Phone: 630.860.9501 10 days written
Fax: 630.860.8905 notice during
MTM term.
- ------------------------------------------------------------------------------------------------------------------------
Security Guards The Kane Service 4/23/92-4/22/93
6325 N. Avondale Renewal: Cost:
Corporate Chicago, IL 60631 M-T-M Varies by No 3/92 Contract is a corporate
Agreement Contact: Mark Baker Cancellation officer but agreement
Phone: 312.775.1118 Option: approximately Through Miglin-Beitler.
Fax: 312.775.3526 Cancellable w/30 $3,500
days prior per week.
written notice. Five full-time
guards.
- ------------------------------------------------------------------------------------------------------------------------
Riser Maintenance Facilities Mgmt. 9/1/96-8/31/97
Co. Renewal: Cost:
26 N. Hillside Ave. MTM One time fee of Yes 7/96 Actual service began
Hillside, IL 60162 Cancellation: $4,000 9/16/96.
Contact: Mike Cancellable w/30 No annual maint. Hourly billing at $48/hr.
Curtin Jr. days prior Fees for as long
Phone: 708/449-2201 written notice. FMC provides svc
Fax: 708/449-2608 to the building.
- ------------------------------------------------------------------------------------------------------------------------
Telecommunications Fairchild Telecom 9/1/96-8/31/01 License Agreement between
Shared Tenant 300 West Service Renewal: Cost: Building
Services Road As agreed $1,000/monthly and Shared
Chantilly, Cancellation: Technologies/Fairchild to
Virginia 22021 Only upon default provide shared telephone
facilities for
Metropolitan Fiber tenants of 200 West
Systems Madison.
One Tower Lane,
Suite 1600 Telecommunications Services
Oakbrook Terrace, Agreement between
IL 60181 Fairchild Comm.
and Metropolitan Fiber
Systems to
provide fiber-optics.
- ------------------------------------------------------------------------------------------------------------------------
Telephones Fairchild Telecom 10/28/91-present
300 W. Service Road Renewal: Cost: No 8/91
PO Box 10804 MTM Varies upon
Chantilly, VA 22021 Cancellation: usages and
Contact: Stuart Anytime distances.
Meister
Phone: 800.800.7466
- ------------------------------------------------------------------------------------------------------------------------
Uniform Rental A.W. Zengler 4/28/97-4/27/98
5427 N. Broadway Renewal: Cost: Yes Contract is Madison
Chicago, IL MTM $79.05/biweekly Plaza's Continuing
60640-1799 Cancellation Service Agreement.
Contact: Larry Option:
Kulik Cancellable w/10
Phone: 312.561.1000 days prior
Fax: 312.561.2542 written notice
during MTM term.
- ------------------------------------------------------------------------------------------------------------------------
Waste BFI/Hoving & Sons 4/22/96-4/21/97 Compactor rental: Yes 4/95 Contract is Madison
Removal/Recycling 1152 West Carroll Renewal: =$135.00/month Plaza's Continuing
Chicago, IL 60607 M-T-M Compactor pulls: Service Agreement.
Contact: David Cancellation =$70.00 each
DeRousse Option: 30 yard roll-off:
Phone: 312.738.5850 Cancellable w/10 =$260.00 each
Phone: 312.829.5758 days prior 25 yard roll-off:
written notice =$210.00 each
during MTM term.
- ------------------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
MADISON PLAZA
SERVICE CONTRACTS
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------------------------------------------------
CONTRACT MG DATE
TYPE OF WORK CONTRACTOR TERM AMOUNT AG BLD REMARKS
- --------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
Window Washing Program Service 3/21/97-3/20/98 Cost:
Exterior Group Renewal: =$12,110/cleaning Yes 3/97 Next year we need to
2850 West Fulton M-T-M 2-44 budget cleaning
Chicago, IL 60612 Cancellation (performed 3x/year) for floors 45 & up twice.
Contact: Tim Trinen Option: =$3,700/cleaning
Phone: 773.533.5100 Cancellable w/10 for 45-up (1x/year) 1st cleaning of 1997
Pager: 773.533.3088 days. Prior =$840/cleaning started 3/24/97
written notice for sloped glass
during MTM term. (3x/year) Madison Plaza's Continuing
Service Agreement.
- --------------------------------------------------------------------------------------------------------------------------
Window Washing Corporate Cleaning 4/3/97-4/2/98
Interior glass Svcs. Renewal: Cost: Yes 3/97 Next year we need to
(Including 21 W. Elm St. M-T-M =$4,200/cleaning budget washing
interior and Chicago, IL 60610 Cancellation =$450.00/quarterly the interior of the
exterior of Lobby) Contact: Neal Option: (lobby windows) windows twice.
Zucker Cancellable w/10 -$300.00/9 months
Phone: 312.573.3333 days prior (high plates) Madison Plaza's Continuing
Fax: 312.573.5730 written notice Service
during MTM term. Agreement.
- --------------------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
EXHIBIT 10(pppp)
CERTIFICATE OF SELLER
---------------------
THIS CERTIFICATE OF SELLER (this "Certificate") is made this 8th day of
July, 1998 by Madison Plaza Venture, an Illinois general partnership ("Seller"),
in favor of Overseas Partners (Madison Plaza) LLC, an Illinois limited liability
company.
WITNESSETH:
-----------
WHEREAS, Seller and Overseas Partners Capital Corp., a Delaware corporation,
entered into that certain Purchase and Sale Agreement dated June 30, 1998 (the
"Agreement"). All capitalized terms used but not defined herein shall have the
meaning ascribed to such terms in the Agreement; and
WHEREAS, Paragraph 4.2(g) of the Agreement requires Seller to deliver to
Purchaser this certificate at closing.
NOW, THEREFORE, as part of the consideration for the purchase of the
Property by Purchaser, Seller hereby certifies that, except as set forth on
Exhibit A attached hereto, the representations and warranties of Seller
contained in the Agreement are true and correct in all material respects as of
the date hereof.
IN WITNESS WHEREOF, this Certificate has been executed as of the date first
set forth above.
MADISON PLAZA VENTURE, an Illinois general
Partnership
By: MW Associates, an Illinois general
partnership, its Managing Venturer
By: The Equitable Life Assurance Society of
the United States, its Managing
Venturer
By: /s/ Michael A. Lunder
Name: Michael A. Lunder
Title: Investment Officer
<PAGE>
EXHIBIT A
1. July rent delinquencies
2
<PAGE>
<TABLE>
<CAPTION>
AGED DELINQUENT AND PREPAID BALANCES
EQUITABLE REAL ESTATE MGMT.
- ----------------------------------------------------------------------------------------------------------------------------
Invoice Date Category Source Amount Current 30 60 90 120
- ----------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
269301-0002 000002 UNITED PARCEL SERVICE, INC. Occupied Day Due: 1 Delq. Day: 0
DAVE SMACIARZ 0002 Last Payment: 10/28/97 900.00
(312) 990-2900
- ----------------------------------------------------------------------------------------------------------------------------
01/01/97 BR Base Rent CH 50.00 50.00
AUTOCHRG
11/01/97 BR Base Rent CH 100.00 100.00
AUTOCHRG
12/01/97 BR Base Rent CH 100.00 100.00
AUTOCHRG
01/01/98 BR Base Rent CH 100.00 100.00
AUTOCHRG
02/01/98 BR Base Rent CH 100.00 100.00
AUTOCHRG
03/01/98 BR Base Rent CH 100.00 100.00
AUTOCHRG
04/01/98 BR Base Rent CH 100.00 100.00
AUTOCHRG
05/01/98 BR Base Rent CH 100.00 100.00
AUTOCHRG
06/01/98 BR Base Rent CH 100.00 100.00
AUTOCHRG
Total: 850.00 100.00 100.00 100.00 100.00 450.00
- ----------------------------------------------------------------------------------------------------------------------------
269301-0003 000119 AIRBORNE EXPRESS Occupied Day Due: 1 Delq. Day: 0
0003 Last Payment: 01/05/98 400.00
- ----------------------------------------------------------------------------------------------------------------------------
01/01/98 BR Base Rent CH 400.00 400.00
97-98 ANNU
Total: 400.00 0.00 0.00 0.00 0.00 400.00
- ----------------------------------------------------------------------------------------------------------------------------
269301-0125 000181 KARAD DRUG COMPANY, INC. Occupied Day Due: 1 Delq. Day: 0
ROGER RADEKE 0125 Last Payment: 06/12/98 2,926.83
(312) 977-0330
- ----------------------------------------------------------------------------------------------------------------------------
06/12/98 MNO Misc. Non- CR 1,458.83CR 1,458.83CR
UNALLOCATE
Total: 1,458.83CR 1,458.83CR 0.00 0.00 0.00 0.00
- ----------------------------------------------------------------------------------------------------------------------------
269301-0130 000006 UNITED AIRLINES, INC. Occupied Day Due: 1 Delq. Day: 0
JIM KRAUSER 0130 Last Payment: 06/19/98 17.90
(312) 294-4890
- ----------------------------------------------------------------------------------------------------------------------------
06/01/98 OC Escal-Op E CH 603.68 603.68
AUTOCHRG
Total: 603.68 603.68 0.00 0.00 0.00 0.00
- ----------------------------------------------------------------------------------------------------------------------------
269301-0520 000165 ADECCO EMPLOYMENT SERVICES Occupied Day Due: 1 Delq. Day: 0
R.E. ACCOUNTS PAYABLE 0520 Last Payment: 06/20/98 12.17
- ----------------------------------------------------------------------------------------------------------------------------
03/05/98 MNO Misc. Non- CR 170.61CR 170.61CR
UNALLOCATE
Total: 170.61CR 0.00 0.00 0.00 170.61CR 0.00
- ----------------------------------------------------------------------------------------------------------------------------
269301-0590 000195 DELAWARE CHARTER/TRUST Occupied Day Due: 1 Delq. Day: 0
CONSULT 0590 Last Payment: 06/23/98 4,323.75
- ----------------------------------------------------------------------------------------------------------------------------
03/01/98 OC Escal-Op CH 2,008.28 2,008.28
AUTOCHRG
03/01/98 RC Esc-RE Tax CH 540.49 540.49
AUTOCHRG
03/01/98 SVC Service re CH 15.00 15.00
WORKORDER
06/23/98 MNO Misc. Non- CR 2,470.62CR 2,470.62CR
UNALLOCATE
Total: 93.15 2,470.62CR 0.00 0.00 2,563.77 0.00
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
AGED DELINQUENT AND PREPAID BALANCES
EQUITABLE REAL ESTATE MGMT.
============================================================================================================================
Invoice Date Category Source Amount Current 30 60 90 120
- ----------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
269301-0700 000188 COLUMN FINANCIAL INC. Occupied Day Due: 1 Delq. Day: 0
JENNIFER JOHNSON 0700 Last Payment: 06/20/98 6,317.43
- ----------------------------------------------------------------------------------------------------------------------------
04/28/98 MNO Misc. Non- CR 79,559.01CR 79,559.01CR 0.00
UNALLOCATE
Total: 79,559.01CR 0.00 0.00 79,559.01CR 0.00 0.00
- ----------------------------------------------------------------------------------------------------------------------------
269301-0800 000015 THE HARTFORD INSURANCE Occupied Day Due: 1 Delq. Day: 0
LAURAN CLOGSTON 0800 Last Payment: 05/29/98 239,330.44
(203) 547-2891
- ----------------------------------------------------------------------------------------------------------------------------
01/30/98 MNO Misc. Non- CR 5,077.93CR 5,077.93CR
UNALLOCATE
02/27/98 MNO Misc. Non- CR 59,911.81CR 59,911.81CR
UNALLOCATE
03/31/98 MNO Misc. Non- CR 5,940.43CR 5,940.43CR
UNALLOCATE
04/29/98 MNO Misc. Non- CR 447.56CR 447.56CR
UNALLOCATE
05/29/98 MNO Misc. Non- CR 241.56CR 241.56CR
UNALLOCATE
Total: 71,619.29CR 0.00 241.56CR 447.56CR 5,940.43CR 64,989.74CR
- ----------------------------------------------------------------------------------------------------------------------------
269301-1020 000197 BEAR STEARNS & CO. Occupied Day Due: 1 Delq. Day: 0
1020 Last Payment: 06/19/98 295.80
- ----------------------------------------------------------------------------------------------------------------------------
03/31/98 SVC Service re CH 360.00 360.00
WORKORDER
03/31/98 SVC Service re CH 190.00 190.00
WORKORDER
05/01/98 BR Base Rent CH 5,760.45 5,760.45
AUTOCHRG
05/01/98 OC Escal -Op E CH 5,471.49 5,471.49
05/01/98 RC Esc - RE Tax CH 7,605.14 7,605.14
05/01/98 SVC Service re CH 930.64 930.64
WORKORDERS
06/01/98 BR Base Rent CH 6,056.25 6,056.25
AUTOCHRG
06/01/98 SVC Service re CH 18.00 18.00
WORKORDERS
06/01/98 SVC Service re CH 16.00 16.00
WORKORDERS
06/01/98 SVC Service re CH 15.00 15.00
WORKORDERS
06/01/98 SVC Service re CH 15.00 15.00
WORKORDERS
06/01/98 SVC Service re CH 89.70 89.70
WORKORDERS
06/01/98 SVC Service re CH 89.70 89.70
WORKORDERS
06/01/98 SVC Service re CH 10.00 10.00
WORKORDERS
06/01/98 SVC Service re CH 40.00 40.00
WORKORDERS
06/01/98 SVC Service re CH 30.00 30.00
WORKORDERS
Total: 26,682.37 6,364.65 19,767.72 0.00 550.00 0.00
- ----------------------------------------------------------------------------------------------------------------------------
269301-1300 000145 OFFICE OF THRIFT SUPERVISION Occupied Day Due: 1 Delq. Day: 0
1300 Last Payment: 06/19/98 100.00
- ----------------------------------------------------------------------------------------------------------------------------
03/15/98 MNO Misc. Non- CR 1.00CR 1.00CR
UNALLOCATE
06/01/98 BR Base Rent CH 39,367.05 39,367.05
AUTOCHRG
06/01/98 SRC Cleaning - B CH 25.00 25.00
AUTOCHRG
Tota:l: 39,391.05 39,392.05 0.00 0.00 1.00CR 0.00
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
AGED DELINQUENT AND PREPAID BALANCES
EQUITABLE REAL ESTATE MGMT.
============================================================================================================================
Invoice Date Category Source Amount Current 30 60 90 120
- ----------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
269301-1600 000018 NATIONAL FUTURES ASSOCIATION Occupied Day Due: 1 Delq. Day: 0
CANDICE EDWARDS 1600 Last Payment: 06/20/98 20.00
(312) 781-1300
- ----------------------------------------------------------------------------------------------------------------------------
05/23/98 MNO Misc. Non- CR 295.00CR 295.00CR
UNALLOCATE
Total: 295.00CR 0.00 295.00CR 0.00 0.00 0.00
- ----------------------------------------------------------------------------------------------------------------------------
269301-1835 000021 ACCUWORD INTERNATIONAL Occupied Day Due: 1 Delq. Day: 0
KELLY KEELEAN 1835 Last Payment: 06/08/98 4,727.35
(203) 236-2351
- ----------------------------------------------------------------------------------------------------------------------------
06/15/98 BR Base Rent NC 2,422.22CR 2,422.22CR
REMOVE CHA
06/15/98 OC Escal-Op E NC 54.59CR 54.59CR
REMOVE CHA
06/15/98 SA Base Rent NC 50.00CR 50.00CR
REMOVE CHA
Total: 2,526.81CR 2,526.81CR 0.00 0.00 0.00 0.00
- ----------------------------------------------------------------------------------------------------------------------------
269301-1840 000022 FAIRCHILD COMMUNICATIONS Occupied Day Due: 1 Delq. Day: 0
TRACY MILLINCAMP 1840 Last Payment: 06/19/98 4,417.00
(708) 947-7000
- ----------------------------------------------------------------------------------------------------------------------------
04/01/98 MIT Misc Oper CH 591.03 591.03
AUTOCHRG
06/01/98 SVC Service re CH 89.70 89.70
WORKORDERS
06/01/98 SVC Service re CH 305.67 305.67
WORKORDERS
06/01/98 SVC Service re CH 418.60 418.60
WORKORDERS
06/01/98 SVC Service re CH 119.60 119.60
WORKORDERS
06/01/98 SVC Service re CH 301.30 301.30
WORKORDERS
Total: 1,825.90 1,234.87 0.00 591.03 0.00 0.00
- ----------------------------------------------------------------------------------------------------------------------------
269301-1900 000170 SCA CONSULTING Occupied Day Due: 1 Delq. Day: 0
JIM KNIGHT 1900 Last Payment: 06/19/98 10.00
- ----------------------------------------------------------------------------------------------------------------------------
02/23/98 MNO Misc. Non- CR 1,227.06CR 1,227.06CR
UNALLOCATE
03/03/98 MNO Misc. Non- CR 786.92CR 786.92CR
UNALLOCATE
Total: 2,013.98CR 0.00 0.00 0.00 786.92CR 1,227.06CR
- ----------------------------------------------------------------------------------------------------------------------------
269301-1950 000028 ROSENBLUM & SMITH Occupied Day Due: 1 Delq. Day: 0
BRIAN VANDENBERG 1950 Last Payment: 06/23/98 8,650.71
(312) 977-9000
- ----------------------------------------------------------------------------------------------------------------------------
03/01/98 BR Base Rent CH 1,064.92 1,064.92
AUTOCHRG
06/01/98 BR Base Rent CH 10,396.26 10,396.26
AUTOCHRG
06/01/98 SVC Service re CH 10.00 10.00
WORKORDERS
06/01/98 SVC Service re CH 25.00 25.00
WORKORDERS
06/01/98 SVC Service re CH 50.00 50.00
WORKORDERS
06/01/98 SVC Service re CH 45.00 45.00
WORKORDERS
06/23/98 MNO Misc. Non- CR 77.48CR 77.48CR
UNALLOCATE
Total: 11,513.70 10,448.78 0.00 0.00 1,064.92 0.00
- ----------------------------------------------------------------------------------------------------------------------------
269301-1970 000129 KELLEY DRYE & WARREN Occupied Day Due: 1 Delq. Day: 0
JEFFREY M. CROSS 1970 Last Payment: 06/08/98 1,404.88
(312) 346-6350
- ----------------------------------------------------------------------------------------------------------------------------
03/23/98 MNO Misc. Non- CR 0.01CR
0.01CR
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
AGED DELINQUENT AND PREPAID BALANCES
EQUITABLE REAL ESTATE MGMT.
===============================================================================================================================
Invoice Date Category Source Amount Current 30 60 90 120
- -------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
KELLEY DRYE & WARREN Continued:
UNALLOCATE
Total: 0.01CR 0.00 0.00 0.00 0.01CR 0.00
- -------------------------------------------------------------------------------------------------------------------------------
269301-1975 000128 SATO TRAVEL Occupied Day Due: 1 Delq. Day: 0
ROSEMARIE ROSSI 1975 Last Payment: 06/19/98 834.41
703 346-6350
- -------------------------------------------------------------------------------------------------------------------------------
05/01/98 RC Esc RE Tax CH 983.97 983.97
AUTOCHRG
06/01/98 PC Parking In CH 350.00 350.00
AUTOCHRG
Total: 1,333.97 350.00 983.97 0.00 0.00 0.00
- -------------------------------------------------------------------------------------------------------------------------------
269301-2020 000140 OFFICE OF THE BUILDING Occupied Day Due: 1 Delq. Day: 0
2020 Last Payment: 06/19/98 15,980.48
- -------------------------------------------------------------------------------------------------------------------------------
05/01/98 BR Base Rent CH 6,383.20 6,383.20
AUTOCHRG
06/01/98 OC Escal Op E CH 187.68 187.68
AUTOCHRG
Total: 6,570.88 6,570.88 0.00 0.00 0.00 0.00
- -------------------------------------------------------------------------------------------------------------------------------
269301-2060 000122 PRO STAFF PERSONNEL Occupied Day Due: 1 Delq. Day: 0
SERVICES 2060 Last Payment: 02/20/98 11,445.18
- -------------------------------------------------------------------------------------------------------------------------------
11/24/97 MNO Misc. Non- CR 515.77CR 515.77CR
UNALLOCATE
Total 515.77CR 0.00 0.00 0.00 0.00 515.77CR
- -------------------------------------------------------------------------------------------------------------------------------
269301-2100 000137 FMC FOODTECH Occupied Day Due: 1 Delq. Day: 0
CINDY SHIAO 2100 Last Payment: 06/23/98 70,562.17
(312) 861-5715
- -------------------------------------------------------------------------------------------------------------------------------
02/23/98 MNO Misc. Non- CR 5,612.46CR 5,612.46CR
UNALLOCATE
Total: 5,612.46CR 5,612.46CR 0.00 0.00 0.00 0.00
- -------------------------------------------------------------------------------------------------------------------------------
269301-2150 000171 SLP STATISTICS, INC. Occupied Day Due: 1 Delq. Day: 0
GREG SPURRIER 2150 Last Payment: 06/23/98 10,004.74
- -------------------------------------------------------------------------------------------------------------------------------
10/01/97 BR Base Rent CH 1,156.38 1,156.38
AUTOCHRG
10/01/97 OC Escal Op E CH 1,390.15 1,390.15
AUTOCHRG
10/01/97 RC Esc-RE Tax CH 1,886.94 1,886.94
AUTOCHRG
10/01/97 SR Base Rent CH 329.00 329.00
AUTOCHRG
10/01/97 SRC Cleaning B CH 10.00 10.00
WORKORDER
10/01/97 SRC Cleaning B CH 3.00 3.00
WORKORDER
11/01/97 BR Base Rent CH 1,261.50 1,261.50
AUTOCHRG
11/01/97 OC Escal Op E CH 1,390.15 1,390.15
AUTOCHRG
11/01/97 RC Esc-RE Tax CH 1,886.94 1,886.94
AUTOCHRG
11/01/97 SR Base Rent CH 329.00 329.00
AUTOCHRG
11/01/97 SVC Service re CH 35.00 35.00
WORKORDER
02/01/98 BR Base Rent CH 924.92 924.92
AUTOCHRG
06/23/98 MNO Misc. Non- CR 4,994.87CR 4,994.87CR
UNALLOCATE
Total: 5,608.11 4,994.87CR 0.00 0.00 0.00 10,602.98
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
AGED DELINQUENT AND PREPAID BALANCES
EQUITABLE REAL ESTATE MGMT.
===============================================================================================================================
Invoice Date Category Source Amount Current 30 60 90 120
- -------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
269301-2210 000194 VERIO-MIDWEST INC. Occupied Day Due: 1 Delq. Day: 0
2210 Last Payment: 06/23/98 13,667.85
- -------------------------------------------------------------------------------------------------------------------------------
04/27/98 MNO Misc. Non- CR 478.91CR 478.91CR
UNALLOCATE
06/23/98 MNO Misc. Non- CR 20.00CR 20.00CR
UNALLOCATE
Total 498.91CR 20.00CR 0.00 478.91CR 0.00 0.00
- -------------------------------------------------------------------------------------------------------------------------------
269301-2260 000034 SULLIVAN, COTTER, Occupied Day Due: 1 Delq. Day: 0
& ASSOC. 2260 Last Payment: 06/23/98 3,995.98
- -------------------------------------------------------------------------------------------------------------------------------
06/23/98 MNO Misc. Non- CR 3,885.35CR 3,885.35CR
UNALLOCATE
Total: 3,885.35CR 3,885.35CR 0.00 0.00 0.00 0.00
- -------------------------------------------------------------------------------------------------------------------------------
269301-2420 000036 MG. METALS CORPORATION Occupied Day Due: 1 Delq. Day: 0
2420 Last Payment: 06/23/98 3,330.08
- -------------------------------------------------------------------------------------------------------------------------------
03/01/98 SVC Service re CH 758.20 758.20
WORKORDER
Total: 758.20 0.00 0.00 0.00 758.20 0.00
- -------------------------------------------------------------------------------------------------------------------------------
269301-2450 000180 THE HUNTER GROUP, INC. Occupied Day Due: 1 Delq. Day: 0
ACCOUNTS PAYABLE 2450 Last Payment: 06/19/98 2,553.56
(410)576-1515
- -------------------------------------------------------------------------------------------------------------------------------
05/01/98 OC Escal-Op E CH 15.00 15.00
AUTOCHRG
Total: 15.00 0.00 15.00 0.00 0.00 0.00
- -------------------------------------------------------------------------------------------------------------------------------
269301-2600 000039 U.S. SPRINT Occupied Day Due: 1 Delq. Day: 0
SHERRY BURTON 2600 Last Payment: 06/20/98 298.73
(708) 318-3000
- -------------------------------------------------------------------------------------------------------------------------------
03/01/97 MR Esc-Misc/P NC 452.08CR 452.08CR
96 0/E ESC
03/25/97 RR Esc-RE Tax NC 1,690.18CR 1,690.18CR
91 R/E TAX
03/01/98 RC Esc-RE Tax NC 1,939.28CR 1,939.28CR
CIRCUL. TAX
03/01/98 RC Esc-RE Tax NC 1,880.44CR 1,880.44CR
CIRCULATOR
Total: 5,961.98CR 0.00 0.00 0.00 3,819.72CR 2,142.26CR
- -------------------------------------------------------------------------------------------------------------------------------
269301-2610 000121 BARNES & THORNBURG Occupied Day Due: 1 Delq. Day: 0
CLAUDIA SCOTT 2610 Last Payment: 06/19/98 1,564.39
- -------------------------------------------------------------------------------------------------------------------------------
02/25/98 RC Esc-RE Tax CH 120.00 120.00
2/15-2/28
Total: 120.00 0.00 0.00 0.00 0.00 120.00
- -------------------------------------------------------------------------------------------------------------------------------
269301-2670 000134 BENEFITS COMMUNICATION Occupied Day Due: 1 Delq. Day: 0
CORP. 2670 Last Payment: 06/19/98 725.84
NANCY COLE
(312) 419-9030 ext. 108
- -------------------------------------------------------------------------------------------------------------------------------
05/23/98 MNO Misc. Non- CH 302.27CR 302.27CR
UNALLOCATE
Total: 302.27CR 0.00 302.27CR 0.00 0.00 0.00
- -------------------------------------------------------------------------------------------------------------------------------
269301-2720 000044 FPL ADVISORY GROUP CO. Occupied Day Due: 1 Delq. Day: 0
2720 Last Payment: 06/18/98 16,143.58
- -------------------------------------------------------------------------------------------------------------------------------
06/01/98 SVC Services re CH 10.00 10.00
WORKORDERS
06/18/98 MNO Misc. Non- CR 7.00CR 7.00CR
UNALLOCATE
Total: 3.00 3.00 0.00 0.00 0.00 0.00
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
AGED DELINQUENT AND PREPAID BALANCES
EQUITABLE REAL ESTATE MGMT.
===============================================================================================================================
Invoice Date Category Source Amount Current 30 60 90 120
- -------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
269301-2805 000046 O'BRIEN KREITZBERG Occupied Day Due: 1 Delq. Day: 0
2805 Last Payment: 06/19/98 8,178.48
- -------------------------------------------------------------------------------------------------------------------------------
06/02/98 MNO Misc. Non- CR 43.93CR 43.93CR
UNALLOCATE
Total: 43.93CR 43.93CR 0.00 0.00 0.00 0.00
- -------------------------------------------------------------------------------------------------------------------------------
269301-2850 000047 SUSAN E. LOGGANS Occupied Day Due: 1 Delq. Day: 0
& ASSOCIATES 2850 Last Payment: 06/19/98 835.42
SUSAN LOGGANS
- -------------------------------------------------------------------------------------------------------------------------------
06/01/98 BR Base Rent CH 1,374.50 1,374.50
AUTOCHRG
06/01/98 OC Escal-Op E CH 5,651.31 5,651.31
AUTOCHRG
06/01/98 RC Esc-Re Tax CH 7,855.08 7,855.08
AUTOCHRG
06/01/98 SRC Cleaning-B CH 158.00 158.00
AUTOCHRG
06/01/98 SVC Service re CH 30.00 30.00
WORKORDERS
06/01/98 SVC Service re CH 90.00 90.00
WORKORDERS
Total: 15,158.89 15,158.89 0.00 0.00 0.00 0.00
- -------------------------------------------------------------------------------------------------------------------------------
269301-2900 000049 HYATT CORPORATION Occupied Day Due: 1 Delq. Day: 0
RON DEBIASE 2900 Last Payment: 06/30/98 54,067.54
(312) 750-8128
- -------------------------------------------------------------------------------------------------------------------------------
02/25/98 MNO Misc. Non- CR 1,427.84CR 1,427.84CR
UNALLOCATE
Total: 1,427.84CR 0.00 0.00 0.00 0.00 1,427.84CR
- -------------------------------------------------------------------------------------------------------------------------------
269301-3000 000050 HYATT CORPORATION Occupied Day Due: 1 Delq. Day: 0
RON DEBIASE 3000 Last Payment: 06/30/98 42,119.00
(312) 750-8128
- -------------------------------------------------------------------------------------------------------------------------------
02/25/98 MNO Misc. Non- CR 3,629.71CR 3,629.71CR
UNALLOCATE
Total: 3,629.71CR 0.00 0.00 0.00 0.00 3,629.71CR
- -------------------------------------------------------------------------------------------------------------------------------
269301-3300 000102 TOWERS PERRIN Occupied Day Due: 1 Delq. Day: 0
MARIA PILLOT 3300 Last Payment: 06/19/98 1,106.54
(215) 246-3936
- -------------------------------------------------------------------------------------------------------------------------------
04/01/98 RC Esc-RE Tax CH 15,508.75 15,508.75
AUTOCHRG
06/01/98 PC Parking In CH 350.00 350.00
AUTOCHRG
06/01/98 SR Base Rent CH 1,905.00 1,905.00
AUTOCHRG
06/01/98 SRC Cleaning-B CH 1,908.54 1,908.54
AUTOCHRG
06/01/98 SVC Service re CH 160.09 160.00
WORKORDERS
06/01/98 SVC Service re CH 315.00 315.00
WORKORDERS
06/01/98 SVC Service re CH 400.00 400.00
WORKORDERS
06/15/98 BR Base Rent NC 41.50CR 41.50CR
REMOVE CHA
Total: 20,505.88 4,997.13 0.00 15,508.75 0.00 0.00
- -------------------------------------------------------------------------------------------------------------------------------
269301-3440 000153 CENTURA SOFTWARE Occupied Day Due: 1 Delq. Day: 0
CORPORATION 3440 Last Payment: 06/19/98 10.00
ROGER SPIELER
(415) 617-3962
- -------------------------------------------------------------------------------------------------------------------------------
05/01/98 BR Base Rent CH 129.46 129.46
AUTOCHRG
Total: 129.46 0.00 129.46 0.00 0.00 0.00
- -------------------------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
AGED DELINQUENT AND PREPAID BALANCES
EQUITABLE REAL ESTATE MGMT.
===============================================================================================================================
Invoice Date Category Source Amount Current 30 60 90 120
- -------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
269301-3550 000146 DECISIONQUEST, INC. Occupied Day Due: 1 Delq. Day: 0
3550 Last Payment: 06/03/98 5,842.82
- -------------------------------------------------------------------------------------------------------------------------------
06/01/98 SVC Service re CH 30.00 30.00
WORKORDERS
06/01/98 SVC Service re CH 20.00 20.00
WORKORDERS
Total: 50.00 50.00 0.00 0.00 0.00 0.00
- -------------------------------------------------------------------------------------------------------------------------------
269301-3630 000054 MIDWEST MORTGAGE Occupied Day Due: 1 Delq. Day: 0
MANAGEMENT CO 3630 Last Payment: 05/04/98 1,724.13
SCOTT CLEAVE
(312) 407-6999
- -------------------------------------------------------------------------------------------------------------------------------
06/01/98 BR Base Rent CH 1,645.08 1,645.08
AUTOCHRG
06/01/98 OC Escal-Op E CH 20.20 20.20
AUTOCHRG
06/01/98 RC Esc-Re Tax CH 58.85 58.85
AUTOCHRG
Total 1,724.13 1,724.13 0.00 0.00 0.00 0.00
- -------------------------------------------------------------------------------------------------------------------------------
269301-3650 000056 THE BRENNER GROUP Occupied Day Due: 1 Delq. Day: 0
RICHARD HOGAN 3650 Last Payment: 06/23/98 4,837.93
(312) 726-2525
- -------------------------------------------------------------------------------------------------------------------------------
04/01/98 BR Base Rent CH 277.78 277.78
AUTOCHRG
05/01/98 BR Base Rent CH 6,295.18 6,295.18
AUTOCHRG
05/01/98 PC Parking In CH 350.00 350.00
AUTOCHRG
06/01/98 BR Base Rent CH 6,295.18 6,295.18
AUTOCHRG
06/01/98 PC Parking In CH 350.00 350.00
AUTOCHRG
06/23/98 MNO Misc. Non- CR 4,837.93CR 4,837.93CR
UNALLOCATE
Total: 8,730.21 1,807.25 6,645.18 277.78 0.00 0.00
- -------------------------------------------------------------------------------------------------------------------------------
269301-3900 000059 HYATT CORPORAION Occupied Day Due: 1 Delq. Day: 0
RON DEBIASE 3900 Last Payment: 06/30/98 205,993.36
(312) 750-8128
- -------------------------------------------------------------------------------------------------------------------------------
06/01/98 PC Parking In CH 7,310.00 7,310.00
AUTOCHRG
06/01/98 SRC Cleaning-B CH 5,905.00 5,905.00
AUTOCHRG
06/30/98 MNO Misc. Non- CR 1,495.14CR 1,495.14CR
UNALLOCATE
Total: 11,719.86 11,719.86 0.00 0.00 0.00 0.00
- -------------------------------------------------------------------------------------------------------------------------------
269301-5001 000095 THE HARTFORD Occupied Day Due: 1 Delq. Day: 0
WORK ORDERS 5001 Last Payment: 06/20/98 771.20
LARRY SANDLIN
(312) 704-4284
- -------------------------------------------------------------------------------------------------------------------------------
06/12/98 MNO Misc. Non- CR 262.20CR 262.20CR
UNALLOCATE
Total: 262.20CR 262.20CR 0.00 0.00 0.00 0.00
- -------------------------------------------------------------------------------------------------------------------------------
269301-5004 000098 BAIRD & WARNER Occupied Day Due: 1 Delq. Day: 0
WORK ORDERS 5004 Last Payment: 06/29/98 110.00
JAMES L. MANN
(312) 368-1855
- -------------------------------------------------------------------------------------------------------------------------------
12/01/98 SVC Service re CH 45.00 45.00
WORKORDERS
01/01/98 SRC Cleaning-B CH 45.00 45.00
AUTOCHRG
01/01/98 SRC Cleaning-B CH 20.00 20.00
AUTOCHRG
01/01/98 SRC Cleaning-B CH 15.00 15.00
WORKORDER
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
AGED DELINQUENT AND PREPAID BALANCES
EQUITABLE REAL ESTATE MGMT.
===============================================================================================================================
Invoice Date Category Source Amount Current 30 60 90 120
- -------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
BAIRD & WARNER WORK ORDERS Continued:
01/01/98 SRC Cleaning-B CH 15.00 15.00
WORKORDER
01/01/98 SRC Cleaning-B CH 45.00 45.00
WORKORDER
01/01/98 SRC Cleaning-B CH 20.00 20.00
WORKORDER
01/01/98 SRC Cleaning-B CH 20.00 20.00
WORKORDER
01/01/98 SRC Cleaning-B CH 30.00 30.00
WORKORDER
02/01/98 SVC Service re CH 95.00 95.00
WORKORDER
02/01/98 SVC Service re CH 30.00 30.00
WORKORDER
03/01/98 SVC Service re CH 45.00 45.00
WORKORDER
03/01/98 SVC Service re CH 90.00 90.00
WORKORDER
03/01/98 SVC Service re CH 45.00 45.00
WORKORDER
05/01/98 SVC Service re CH 65.00 65.00
WORKORDER
05/01/98 SVC Service re CH 15.00 15.00
WORKORDER
05/01/98 SVC Service re CH 383.00 383.00
WORKORDER
06/29/98 MNO Misc. Non- CR 35.00CR 35.00CR
UNC/ WO #
06/29/98 MNO Misc. Non- CR 110.00CR 110.00CR
UNALLOCATE
Total: 878.00 145.00CR 463.00 0.00 180.00 380.00
- -------------------------------------------------------------------------------------------------------------------------------
269301-5007 000101 HYATT CORPORATION Occupied Day Due: 1 Delq. Day: 0
WORK ORDER 5007 Last Payment: 06/3098 605.00
CHRIS GILBERT
(312) 750-8128
- -----------------------------------------------------------------------------------------------------------------------------
03/06/98 MNO Misc. Non- CR 8.93CR 8.93CR
UNC/ WO # 87
Total: 8.93CR 0.00 0.00 0.00 8.93CR 0.00
- -----------------------------------------------------------------------------------------------------------------------------
269301-5025 000201 USSNET Occupied Day Due: 1 Delq. Day: 0
5025 Last Payment:
- -----------------------------------------------------------------------------------------------------------------------------
02/25/98 MNO Misc. Non- CH 1,000.00 1,000.00
2/98 LICEN
03/01/98 MNO Misc. Non- CH 1,000.00 1,000.00
AUTOCHRG
04/01/98 MNO Misc. Non- CH 1,000.00 1,000.00
AUTOCHRG
05/01/98 MNO Misc. Non- CH 1,000.00 1,000.00
AUTOCHRG
06/01/98 MNO Misc. Non- CH 1,000.00 1,000.00
AUTOCHRG
Total: 5,000.00 1,000.00 1,000.00 1,000.00 1,000.00 1,000.00
- -----------------------------------------------------------------------------------------------------------------------------
269301-6006 000073 MERCANTILE CAPITAL Occupied Day Due: 1 Delq. Day: 0
MARKETS 6006 Last Payment: 06/19/98 70.23
- -----------------------------------------------------------------------------------------------------------------------------
04/01/98 RC Esc-Re Tax CH 151.53 151.53
AUTOCHRG
Total: 151.53 0.00 0.00 151.53 0.00 0.00
- -----------------------------------------------------------------------------------------------------------------------------
269301-6008 000073 BRADLEY UNIVERSITY Occupied Day Due: 1 Delq. Day: 0
6008 Last Payment: 06/12/98 2,008.64
- -----------------------------------------------------------------------------------------------------------------------------
03/30/98 MNO Misc. Non- CR 1,583.32CR 1,583.32CR
UNALLOCATE
Total: 1,583.32CR 0.00 0.00 0.00 1,583.32CR 0.00
- -----------------------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
AGED DELINQUENT AND PREPAID BALANCES
EQUITABLE REAL ESTATE MGMT.
===============================================================================================================================
Invoice Date Category Source Amount Current 30 60 90 120
- -------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
269301-6009 000076 CPC ELECTRICAL SUPPLY Occupied Day Due: 1 Delq. Day: 0
COMPANY 6009 Last Payment: 06/2098 67.94
- -------------------------------------------------------------------------------------------------------------------------------
01/01/98 BR Base Rent CH 1,260.00 1,260.00
AUTOCHRG
02/01/98 BR Base Rent CH 1,260.00 1,260.00
AUTOCHRG
03/01/98 BR Base Rent CH 1,260.00 1,260.00
AUTOCHRG
04/01/98 BR Base Rent CH 1,260.00 1.260.00
AUTOCHRG
04/01/98 RC Esc-RE Tax CH 52.17 52.17
AUTOCHRG
05/01/98 BR Base Rent CH 1,260.00 1,260.00
AUTOCHRG
05/01/98 RC Esc-RE Tax CH 52.17 52.17
AUTOCHRG
06/12/98 MNO Misc. Non- CR 15.77CR 15.77CR
AUTOCHRG
Total: 6,388.57 15.77CR 1,312.17 1.312.17 1,260.00 2,520.00
- -------------------------------------------------------------------------------------------------------------------------------
269301-6010 000077 RICHARD L. GERBER Occupied Day Due: 1 Delq. Day: 0
6010 Last Payment: 06/12/98 19.96
- -------------------------------------------------------------------------------------------------------------------------------
01/01/98 BR Base Rent CH 1,069.67 1,069.67
AUTOCHRG
01/01/98 SRC Cleaning-B CH 149.50 149.50
WORKORDER
02/01/98 BR Base Rent CH 1,192.75 1,192.75
AUTOCHRG
Total 2,411.92 0.00 0.00 0.00 0.00 2,411.92
- -------------------------------------------------------------------------------------------------------------------------------
269301-6011 000078 LISA KOTRA & Occupied Day Due: 1 Delq. Day: 0
ASSOCIATES 6011 Last Payment: 06/12/98 1,672.05
- -------------------------------------------------------------------------------------------------------------------------------
02/23/98 MNO Misc. Non- CH 42.93CR 42.93CR
UNALLOCATE
03/01/98 OC Misc. Non- NC 178.35CR 178.35CR
1997 OP. E
03/23/98 MNO Misc. Non- CR 43.93CR 43.93CR
UNALLOCATE
04/23/98 MNO Misc. Non- CR 76.43CR 76.43CR
AUTOCHRG
Total: 341.64CR 0.00 0.00 76.43CR 222.28CR 42.93CR
- -------------------------------------------------------------------------------------------------------------------------------
269301-7001 000092 LASALLE NATIONAL BANK Occupied Day Due: 1 Delq. Day: 0
ANTODRA ROUSE 7001 Last Payment: 06/11/98 275.00
- -------------------------------------------------------------------------------------------------------------------------------
06/11/98 MNO Misc. Non- CR 275.00CR 275.00CR
UNALLOCATE
Total: 275.00CR 275.00CR 0.00 0.00 0.00 0.00
- -------------------------------------------------------------------------------------------------------------------------------
269301-8013 000148 BEAR CONSTRUCTION Occupied Day Due: 1 Delq. Day: 0
(708) 593-6400 8013 Last Payment: 07/21/98 159.80
- -------------------------------------------------------------------------------------------------------------------------------
05/07/98 MNO Misc. Non- CR 148.00CR 148.00CR
UNALLOCATE
Total: 148.00CR 0.00 0.00 0.00 0.00 148.00CR
- -------------------------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
AGED DELINQUENT AND PREPAID BALANCES
EQUITABLE REAL ESTATE MGMT.
===============================================================================================================================
Invoice Date Category Source Amount Current 30 60 90 120
- -------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Totals:
BR Base Rent 95,736.81 69,153.80 13.545.09 1,637.78 2,424.92 8,975.22
MIT Misc Oper Income-
tenant 591.03 0.00 0.00 591.03 0.00 0.00
MNO Misc. Non-operating 182,518.52CR 24,601.58CR 161.17 79,561.91CR 7,535.15CR 70,981.05CR
MR Esc-Misc/Pr Yr Adj 452.08CR 0.00 0.00 0.00 0.00 452.08CR
OC Escal-Op Exp/ Cur 16,505.00 6,408.28 5,486.49 0.00 1,829.93 2,780.30
Yr Est
PC Parking Income- 8,710.00 8,360.00 350.00 0.00 0.00 0.00
Contract
RC Esc-RE Taxes/Cur 32,882.31 7,913.93 8,641.25 15,712.45 3,279.23CR 3,893.88
Yr Est
RR Esc-RE Taxes/Pr 1,690.18CR 0.00 0.00 0.00 0.00 1,690.18CR
Yr Adj
SR Base rent-storage 2,513.00 1,855.00 0.00 0.00 0.00 658.00
SRC Cleaning-Billed
to Ten. 8,369.04 7,996.54 0.00 0.00 0.00 372.50
SVC Service recovery 5,830.20 2,728.36 1,393.64 0.00 1,503.20 205.00
income
Total 13,523.39CR 79,814.33 29,577.67 61,620.65CR 5,056.33CR 56,238.41CR
</TABLE>
<PAGE>
EXHIBIT 10(qqqq)
PURCHASER'S CERTIFICATE REGARDING
REPRESENTATIONS AND WARRANTIES
THIS PURCHASER'S CERTIFICATE REGARDING REPRESENTATIONS AND WARRANTIES (this
"Certificate') is made and entered into this 8th day of July, 1998, by OVERSEAS
PARTNERS (MADISON PLAZA) LLC, an Illinois limited liability whose sole member is
OVERSEAS PARTNERS (MADISON PLAZA), INC., a Delaware corporation (said limited
liability company being herein referred to as "Purchaser'), to and for the
benefit of MADISON PLAZA VENTURE, an Illinois general partnership ("Seller").
WITNESSETH:
WHEREAS, prior to the execution hereof, Seller and OVERSEAS PARTNERS
CAPITAL CORP., a Delaware corporation ("OPCC") entered into that certain
Purchase and Sale Agreement, dated as of June 30, 1998 (the "Agreement", for the
purchase and sale of that certain improved real property commonly known as
"Madison Plaza," located at 200 West Madison Street, Chicago, Illinois
(according to the street numbering system currently in use in the City of
Chicago, Illinois) and more particularly described on EXHIBIT "'A" attached
hereto and made a part hereof (the "Property"), and as the interest of the
"purchaser" under the Agreement has been assigned by OPCC to Purchaser pursuant
to that certain Assignment and Assumption of Contract Rights of even date
herewith; and
WHEREAS, contemporaneously with the execution and delivery hereof, Seller
and Purchaser are consummating and have consummated the purchase and sale of the
Property, and in connection therewith, Purchaser desires to certify to Seller
certain representations and warranties of Purchaser, as contemplated pursuant to
the terms of Sections 4.3(c) and 5.5 of the Agreement;
NOW, THEREFORE, for and in consideration of the sum of Ten and No/100
Dollars ($10.00), and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Purchaser hereby certifies and
reaffirms to Seller as follows:
l. CERTIFICATION AS TO REPRESENTATIONS AND WARRANTIES. Purchaser hereby
certifies to Seller that the representations and warranties of Purchaser as set
forth in Section 5.5 of the Agreement (and reproduced below for convenience of
reference) are true and correct in all material respects as of the date hereof:
(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") and Purchaser is not a "party-in-
interest" (within the meaning of Section 3(14) of ERISA) to any of the pension
or profit sharing plans of International Business Machines.
<PAGE>
(b) Purchaser has the full right, power and authority to purchase the
Property as provided in the Agreement and to carry out Purchaser's obligations
under the Agreement, and all requisite action necessary to authorize Purchaser
to enter into the Agreement and to carry out its obligations thereunder have
been taken. The person signing the 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 under the
Agreement.
2. SURVIVAL OF PURCHASER'S REPRESENTATIONS AND WARRANTIES. The
representations and warranties of Purchaser set forth in Section 5.5(a) of the
Agreement, and restated in Paragraph l(a) of this Certificate, shall survive the
execution and delivery of this Certificate and shall be a continuing
representation and warranty without limitation. All other representations and
warranties of Purchaser shall survive the Closing (as defined in the Agreement)
for a period of ninety (90) days.
IN WITNESS WHEREOF, Purchaser has caused this Certificate to be executed
under seal by its duly authorized representative as of the date first above
written.
PURCHASER:
OVERSEAS PARTNERS (MADISON PLAZA) LLC,
an Illinois limited liability company
By: OVERSEAS PARTNERS (MADISON PLAZA), INC., a
Delaware corporation, its sole member
By: /s/ Bruce M. Barone
Name: Bruce M. Barone
Its: President, CEO
(CORPORATE SEAL)
2
<PAGE>
EXHIBIT "A"
LEGAL DESCRIPTION
MADISON PLAZA
The East half of Lot 6 and all of Lots 7 and 8 (all taken as a tract), excepting
from said tract that part taken for widening of Madison Street, in Block 54 in
Original Town of Chicago, in Section 9, Township 39 North, Range 14 East of the
Third Principal Meridian, in Cook County, Illinois.
Containing 36,577 square feet (0.8397 acres) of land, more or less.
3
<PAGE>
TERM LOAN PROMISSORY NOTE
$100,000,000.00 Dated: July 6, 1998
FOR VALUE RECEIVED, the undersigned, OVERSEAS PARTNERS (MADISON PLAZA) LLC,
an Illinois limited liability company (the "Borrower"), HEREBY PROMISES TO PAY
---------
to the order of BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION (the
,"Bank") the principal sum of ONE HUNDRED MILLION DOLLARS ($100,000,000.00) (the
- --------
"Loan") . on December 31, 1998 (the "Stated Maturity Date"). The Borrower
- ------- ------------------------
promises to pay interest on the unpaid principal amount hereof from the date
hereof until such principal amount is paid in full at either (i) the Reference
Rate or (ii) the applicable LIBOR Rate in effect for any interest Period
(hereinafter defined) as selected by Borrower as and on the terms provided
heroin. Accrued interest shall be payable in arrears on the first day of each
month and on the Stated Maturity Date.
The "Reference Rate" means the per annum rate of interest publicly announced
from time to time by Bank at San Francisco, California, as its Reference Rate.
The Reference Rate is set by Bank based on various factors including Bank's
Costs and desired return, general economic conditions and other factors, and is
used as a reference point for pricing loans. Bank may price loans at, above or
below the Reference Rate. Any change in the Reference Rate shall take effect on
the day specified in the public announcement of such change. The "LIBOR Rate"
------------
means an interest rate per annum equal, at all times during a selected Interest
Period, to .90% above the rate of interest per annum obtained by dividing (x)
the London Inter-Bank Offered Rate by (y) a percentage equal to 100% minus the
LIBO Rate Reserve Percentage for such interest Period. The "London Inter-Bank
------------------
offered Rate" means the per annum rate of interest, rounded upward, if
- -------------
necessary, to the nearest 1/16th of one percent (0.0625%), at which Bank's
London branch, London, England, would offer U.S. dollar deposits in amounts and
for periods comparable to those of the applicable Interest Period to major banks
in the London U.S. dollar inter-bank market at approximately 11:00 a.m., London
time, the first Banking Day (hereinafter defined) after Borrower's rate
election, The "LIBO Rate Reserve Percentage" for any Interest Period is the
------------------------------
reserve percentage (rounded upward, if necessary, to the nearest 1/100th of one
percent) applicable during such Interest Period under regulations issued from
time to time by the Board of Governors of the Federal Reserve System (or
<PAGE>
if more than one such percentage is so applicable, the daily average of such
percentages for those days in such Interest Period during which any such
percentage shall be so applicable) for determining the maximum reserve
requirement (including any emergency, supplemental, special or other marginal
reserve requirement) for the Bank in respect of liabilities or assets consisting
of or including Eurocurrency Liabilities having a term equal to such Interest
Period. "Eurocurrency Liabilities" has the meaning assigned to that term in
--------------------------
Regulation D of the Board of Governors of the Federal Reserve System, as in
effect from time to time.
Interest shall accrue, payable upon demand, after an Event of Default
and/or on any overdue principal amount until paid in full at a fluctuating
interest rate per annum equal to 2% per annum over the Reference Rate in effect
from time to time.
The period between the date on which the Bank makes the Loan and the date of
payment in full of the principal amount hereof shall be divided with respect to
any portion of the Loan bearing interest at the LIBOR Rate into successive
periods, each such period being an "Interest Period". So long as no Event of
-----------------
Default is continuing, Borrower may elect a LIBOR Rate with respect to a portion
of the Loan for a specified Interest Period no later than 10:00 a.m., Chicago
time, on any Banking Day. The applicable Interest Period shall begin on the
third Banking Day after Borrower's rate election. There shall be no more than
four (4) tranches outstanding at any given time. The initial Interest Period(s)
shall begin on the date on which the Loan is originally made and each subsequent
Interest Period shall begin on the last day of the immediately preceding
Interest Period. If a new Interest Period is not selected prior to the
expiration of an Interest Period, the Reference Rate shall automatically apply
to such portion of the Loan. The duration of each Interest Period shall be one,
two, three or six months with respect to any portion of the Loan bearing
interest at the LIBOR Rate (or such other period as the Borrower and the Bank
shall agree), provided, however, that the duration of any Interest Period which
-------- -------
begins prior to and would otherwise end after the Stated Maturity Date shall end
on the Stated Maturity Date.
ARTICLE I
TERMS OF PAYMENT
SECTION I.I. Prepayments. (a) Permitted Prepayments. The Borrower may, upon
----------- ---------------------
at least five Business Days' notice to the Bank, prepay the Loan in whole or in
part on, but only on, the last day of any Interest Period, with accrued interest
to the date of such prepayment on the amount prepaid, provided that each
--------
2
<PAGE>
partial prepayment shall be in a principal amount not less than $10,000,000.
(b) Mandatory Prepayments. The Borrower shall prepay in full the Loan with
---------------------
accrued interest thereon and all other amounts payable by the Borrower
hereunder,
(i) on the effectiveness of any financing (whether in the form of a
loan, securitization vehicle or otherwise) obtained by the Borrower, the
Guarantor (as herein defined) or any of their subsidiaries or affiliates
with respect to or in connection with, and secured in whole or in part by,
the property located at 200 West Madison Street, Chicago, Illinois and
commonly known as Madison Plaza ('Madison -Plaza') ;and
------------------
(ii) if it shall become unlawful for the Bank to continue to fund or
maintain this Note or the Loan and the Bank notifies the Borrower of the
same.
Notwithstanding anything herein to the contrary, if the Borrower is
obligated to prepay the Loan pursuant to Section 1.1(b)(i), prior to the
------- ---------
expiration of any and all outstanding Interest Periods, the Borrower may, at its
option, without cost or penalty, defer the date of prepayment of the Loan to the
date on which the last such existing outstanding interest Period has expired in
order to avoid incurring breakage costs.
SECTION 1.2. Increased Costs, Funding Losses, Capital Adequacy, etc. (a) In
---------------------------------------- -------------
the event that as a result of either (i) the introduction of or any change in,
or in the interpretation of, any law or regulation, or (ii) the compliance by
the Bank with any request from any central bank or other governmental authority,
there is any increase in its cost of agreeing to make, fund or maintain the
Loan, then the Borrower will, from time to time, promptly upon the Bank's
written request to the Borrower, pay to the Bank additional amounts sufficient
to indemnify it against such increased cost.
(b) In the event that the Bank incurs any loss or expense (including any
loss or expense incurred by reason of the liquidation or reemployment of
deposits or other funds acquired by the Bank to make, continue or maintain any
portion of the principal amount of the Loan) as a result of the repayment or
prepayment (whether pursuant to Section 1.1 or for any other reason) of the
-----------
principal amount of the Loan on a date other than the last day of the Interest
Period applicable thereto, then the Borrower will, from time to time, promptly
upon the Bank's written request to the
3
<PAGE>
Borrower, pay to the Bank additional amounts sufficient to reimburse the Bank
for such loss or expense.
(c) If either the introduction, effectiveness, interpretation, or phase-in
of, or compliance by the Bank with, any law or regulation, directive, guidelines
decision or request (whether or not having the force of law) of any court,
central bank, regulator or other governmental authority affects or would affect
the amount of capital required or expected to be maintained by the Bank, and the
Bank determines (in its sole and absolute discretion) that the rate of return on
its capital as a consequence of the Loan is reduced to a level below that which
the Bank could have achieved but for the occurrence of any such circumstance,
then the Borrower will, from time to time, promptly upon the Bank's written
request to the Borrower, pay to the Bank additional amounts sufficient to
Compensate the Bank for such reduction in its rate at return.
(d) A statement (including calculations in reasonable detail) by the Bank
as to any amount payable pursuant to this Section will, in the absence of
manifest error, be conclusive and binding on the Borrower. In determining such
amount, the Bank may use any method of averaging and attribution that the Bank
(in its sole and absolute discretion) deems applicable.
(e) Notwithstanding anything to the contrary in this Note, the Borrower
shall be obligated to pay amounts to the Bank pursuant to Sections 1.2 (a) and
----------------
(c) only it the aggregate amount required to be so paid by the Borrower pursuant
to Sections 1.2(a) and (c) exceeds $200,000.00 in which event Borrower shall be
---------------
obligated to pay only that amount which is in excess of $260,000.00.
SECTION 1.3. Payments and Computations. (a) The Borrower shall make each
-------------------------
payment hereunder by wire transfer initiated by Borrower at a Bank having access
to the Federal Reserve wire transfer system not later than 12:00 noon (Chicago
time) on the day when due in lawful money of the United States (in freely
transferable United States dollars) to the Bank pursuant to the following wire
transfer instructions:
Bank of America
ABA #121-000-358
Account # 15033-00420
Account Name: CLSSS #1503
Re: Overseas Partners (Madison Plaza) LLC
LIN #GK0474
Attn: Maria Fletes
4
<PAGE>
(b) All computations of interest shall be made by the Bank on the basis of
a year of 360 days for the actual number of days (including the first day but
excluding the last day) occurring in the period for which such interest is
payable.
(c) Whenever any payment to be made hereunder shall be stated to be due, or
whenever the last day of any Interest Period would otherwise occur, on a day
other than a day (a "Business Day") on which dealings are carried on in the
---------------
London interbank market and banks are open for business in London and are not
authorized or required to close in Chicago, such payment shall be made, and the
last day of such Interest Period shall occur, on the next succeeding Business
Day, and such extension of time shall in such case be included in the
computation of payment of interest; provided that if such extension would cause
--------
such payment to be made, or the last day of such Interest Period to occur in, a
new calendar month, such payment shall be made, or the last day of such Interest
Period shall occur, on the next preceding Business Day.
SECTION 1.4. Extension Option. Borrower may further extend the maturity of
----------------
the Loan for two additional three month periods (i.e. until March 31, 1999 and
June 30, 1999 respectively). Borrower may request each respective extension in
a written notice which shall be delivered to Bank between sixty (60) and thirty
(30) days before the Loan is then scheduled to mature. Before each respective
extension becomes effective, the following conditions shall be satisfied:
(a) No Event of Default shall have occurred and be continuing and no other
event ('Default') shall have occurred and be continuing if the event, with
-----------
notice or the passage of time or both, would be such an Event of Default.
(b) The Bank shall have received an extension fee of .05% of the then
outstanding principal balance of the Loan for the first three month extension
and .10% of the then outstanding principal balance of the Loan for the second
three month extension; provided, however, if the Bank receives evidence
satisfactory to the Bank that the Borrower is in active discussions with a third
party lender (unaffiliated with Borrower or Guarantor) for refinancing of the
Loan (including without limitation, the financing of Madison Plaza), the fee for
the applicable extension period shall not be due until the earlier of (i) the
payment in full of the Loan or (ii) the last day of the applicable extension
period and in the event the fee becomes due pursuant to the foregoing, prior to
the end of the extension
5
<PAGE>
period, such fee shall be prorated over the applicable extension period to the
date of payment.
ARTICLE II
CONDITIONS PRECEDENT
SECTION 2.1. Conditions Precedent to Making the Loan, it is a condition
---------------------------------------
precedent to the making of the Loan that the Bank receive, prior to or
concurrently with the making of the Loan, the following documents and
instruments in form and substance satisfactory to the Bank:
(a) This Note, duly executed by the Borrower in favor of the Bank.
(b) The Guaranty (the "Guaranty"), dated of even date with this Note, duly
-----------
executed by Overseas Partners, Ltd., ("Overseas Ltd.") and Overseas
-----------------
Partners Capital Corp. ("Overseas Corp.") ; Overseas Ltd. and Overseas
------------------
Corp. are individually and collectively referred to as the "Guarantor") ;
-----------
and the Borrower, the Borrower's Member (hereinafter defined) and the
Guarantors are collectively referred to as the "Loan Parties") in favor of
---------------
the Bank, a copy of which is attached hereto as Exhibit A.
---------
(c) A certificate, dated the date of the Loan, of a duly authorized officer of
the Borrower, certifying as to:
(i) resolutions, then in full force and effect of OVERSEAS PARTNERS
(MADISON PLAZA), INC., Borrower's sole member, ("Borrower's Member")
---------------------
authorizing the execution, delivery and performance of this Note;
(ii) the incumbency and true signatures of the officers of the Borrower's
Member duly authorized to sign this Note;
(iii) a good standing certificate for the State of Borrower's and
Borrower's Member's formation and a certified copy of the formation
documents of the Borrower and Borrower's Member;
(iv) a list of individuals authorized to provide telephone instructions
for disbursements, interest rate selection and payments (if different
from the individuals authorized to execute the Note); and
6
<PAGE>
(v) the Borrower's Member's federal tax identification number.
(d) A certificate, dated the date of the Loan, of one of the duly authorized
officers of each Guarantor, certifying with respect to each Guarantor as
to:
(i) resolutions of the Guarantor's governing body then in full-force and
effect authorizing the execution, delivery and performance of the Guaranty;
(ii) the incumbency and true signatures of the officers of the Guarantor
duly authorized to sign the Guaranty; and
(iii) a good standing certificate for the State of the Guarantor's
formation and the formation documents of the Guarantor.
(e) A certificate, dated the date of the Loan, of Overseas Ltd.'s duly
authorized officers, establishing that Overseas Ltd. is in compliance with
the covenants set forth in clauses (e) and (f) of Section 7 of the
--- ---
Guaranty.
(f) Certified copies of all necessary governmental authorizations and
approvals, if any, obtained by any Loan Party in connection with this Note
and the Guaranty,
(g) A favorable opinion of Wilson & McIlvaine, Illinois counsel to the
Borrower, Borrower's Member and the Guarantors, in substantially the form
of Exhibit a hereto, and as to such other matters as the Bank may
-------
reasonably request.
(h) A favorable opinion of Conyers, Dill & Pearman, Bermuda counsel to Overseas
Ltd., in substantially the form of Exhibit-g hereto, and as to such other
---------
matters as the Bank may reasonably request.
(i) A letter from the Borrower and each Guarantor to CT Corporation Systems,
Inc, ("CT"), pursuant to Section 6.9 hereof and Section 17 of the Guaranty,
------ ------- -------
requesting that CT serve as agent for service of process for the Borrower
under this Note and for the Guarantors pursuant to the Guaranty,
substantially in the form of Exhibit D hereto, together with evidence of
-------
payment of all fees payable by the Borrower and the Guarantors with respect
thereto.
7
<PAGE>
(j) The audited balance sheets of Overseas Ltd. and Overseas Corp. and their
respective consolidated subsidiaries as at December 31, 1997, and the
related statements of income and retained earnings for the fiscal year then
ended.
(k) No later than thirty (30) days after Borrower's acquisition of Madison
Plaza, Borrower shall deliver to Bank a copy of each of the following
documents related to Borrower's acquisition of Madison Plaza; (i) the final
closing statement signed by Borrower and its seller, (ii) Borrower's
owner's pro forma title insurance policy or marked title insurance
commitment (or to the extent available, the original title insurance
policy) signed by the title company evidencing Borrower's 100!k fee
ownership of Madison Plaza and (iii) evidence of Borrower's casualty and
liability insurance for Madison Plaza.
(1) Such other additional documents, instruments, information or items as the
Bank may reasonably request in connection with the making of the Loan.
SECTION 2.2. UP-Front Fee. It is an additional condition precedent to the
------------
making of the Loan that the Bank receive concurrently with the making of the
Loan, a non-refundable up-front fee in the amount of $100,000.00.
SECTION 2.3, Termination of Commitment. The obligation of the Bank to make
---------------------------
the Loan under this Note shall terminate without any further action if the
conditions precedent set forth in this Article II are not satisfied on or before
-------
July 31, 1998 and Borrower shall pay, upon demand, all Bank's reasonable costs
and expenses.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
SECTION 3.1. Representations and Warranties of the Borrower. The Borrower
----------------------------------------------
represents and warrants as follows:
(a) The Borrower is a limited liability company duly organized, validly
existing and in good standing under the laws of the State of Illinois. The
Borrower's Member is the sole member of Borrower and is wholly owned by Overseas
Holding Company, Inc. ('Overseas Holding") . Overseas Holding is wholly owned by
Overseas Ltd. The Borrower's Member is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware, The
Borrower's sole manager is overseas Partners (333), Inc. ('Borrower's Manager')
----------------------
, a corporation duly organized, validly
8
<PAGE>
existing and in good standing under the laws of the State of Illinois and is
wholly owned by Overseas Corp.
(b) The execution, delivery and performance of this Note by the Borrower
and each other document or instrument delivered by the Borrower in connection
herewith are within its and Borrower's Member's company and corporate powers,
have been duly authorized by all necessary company and corporate action and do
not contravene:
(i) the formation documents or by-laws of Borrower or Borrower's
Member;
(ii) any law, rule or regulation applicable to the Borrower or
Borrower's Member; or
(iii) any contractual restriction binding on or affecting the Borrower
or Borrower's Member.
(c) No authorization or approval or other action by, and no notice to or
filing with, any governmental authority or regulatory body is required for the
due execution, delivery and performance by the Borrower of this Note.
(d) This Note is the legal, valid and binding obligation of the Borrower
enforceable against the Borrower in accordance with its terms.
(e) To the best knowledge of the Borrower, there is no pending or
threatened action or proceeding affecting the Borrower or Borrower's Member
before any court, governmental agency or arbitrator, which could, if adversely
determined, reasonably be expected to have a materially adverse effect upon the
financial condition or operations of the Borrower or Borrower's Member.
(f) The Borrower is not engaged in the business of extending credit for the
purpose of purchasing or carrying margin stock (within the meaning of Regulation
U issued by the Board of Governors of the Federal Reserve System), and no
proceeds of this Note will be used to purchase or carry any margin stock or to
extend credit to others for the purpose of purchasing or carrying any margin
stock.
9
<PAGE>
ARTICLE IV
COVENANTS
SECTION 4.1. Affirmative Covenants. So long as the Loan or any other amount
---------------------
under the Note remains unpaid, the Borrower will, and will cause Borrower's
Member to:
(a) Maintain Property. Maintain and preserve Madison Plaza in good
-----------------
working order and condition, ordinary wear and tear excepted.
(b) Business Activities. Continue at all times (i) to be a single
-------------------
purpose entity established solely for the purpose of owning in fee simple and
operating Madison Plaza and to cause Borrower's Member to be a single purpose
entity established solely for the purpose of being Borrower's sole member, and
(ii) to preserve, renew and continue to keep in full force and effect and cause
Borrower's Member to preserve, renew and keep in full force and effect, their
respective existence and their respective privileges and franchises which are
necessary or desirable in the normal conduct of their business.
(c) Books and Records. Keep its books and records reflecting all of its
-----------------
business affairs and transactions in a manner which permits the preparation of
financial statements in accordance with generally accepted accounting principles
from time to time prevailing in the United States ("GAAP"); and permit the
---------
Bank's representatives to visit and inspect any property of the Borrower, to
examine and make abstracts from any of the books and records of the Borrower and
to discuss the affairs, transactions, finances and accounts of the Borrower with
any of their respective officers, directors or independent public accountants,
all at such reasonable times and as often as may reasonably be desired.
(d) Compliance with Laws, Etc. Comply in all material respects with all
--------------------
applicable laws, rules, regulations and orders, such compliance to include
paying before the same become delinquent, all taxes, assessments and
governmental charges imposed upon the Borrower or its property, except to the
extent contested in good faith and by appropriate proceedings promptly
instituted and diligently pursued.
(e) Reporting Requirements. The Borrower will furnish to the Bank:
------------------------
(i) as soon as possible and in any event within five days after the
occurrence of any Event of Default or Default, a statement of an authorized
officer of the
10
<PAGE>
Borrower setting forth details of such Event of Default or Default and the
action which has been taken or is proposed to be taken with respect thereto;
(ii) promptly after the sending or filing thereof, copies of all
reports which the Borrower or Borrower's Member sends to any of its security
holders, and copies of all reports and registration statements which the
Borrower or Borrower's Member files with the Securities and Exchange Commission
or any national securities exchange;
(iii) forty-five (45) days after the end of each fiscal quarter
following Borrower's acquisition of Madison Plaza, a current unaudited property
operating statement, rent roll and rollover schedule for Madison Plaza certified
by an officer of Borrower to be true, complete and correct;
(iv) promptly upon the execution of a commitment letter or mandate
letter relating to the financing referred to in clause (b) of Section 1.1 of
----------- -----------
the Note, notice thereof to the Bank;
(v) prompt notice of any litigation hereafter commenced or other
circumstance, event or occurrence affecting any Loan Party or Madison Plaza that
may reasonably be expected to result in a material adverse change in (i) the
financial condition of any Loan Party, (ii) any Loan Party's ability to perform
any of its obligations under the Note or Guaranty or (iii) the physical
condition or operation of Madison Plaza;
(vi) such other information respecting the condition or operations,
financial or otherwise, of the Borrower or Borrower's Member or Borrower's
Manager as the Bank may from time to time reasonably request.
(f) Environmental Matters. The Borrower will comply with, and use all
---------------------
reasonable efforts to ensure compliance by all its tenants and subtenants, if
any, with, all applicable present or future laws, rules, regulations, orders,
codes or other requirements established by any governmental authority pertaining
to the protection, preservation, conservation or regulation of the environment
('Environmental Laws') and obtain and comply with and maintain, and use all
- ----------------------
reasonable efforts to ensure that all tenants and subtenants obtain and comply
with and maintain, any and all licenses, approvals, notifications, registrations
or permits required by applicable Environmental Laws. The Borrower shall
conduct
11
<PAGE>
and complete all investigations, studies, sampling and testing, and all
remedial, removal and other actions required under Environmental Laws and
promptly comply in all material respects with all lawful orders and directives
of all governmental authorities regarding Environmental Laws, except that the
Borrower may contest the same in good faith by appropriate legal proceedings
provided (i) there exists no Event of Default or Default hereunder, (ii) the
Bank is given prior notice of such contest, (iii) such contest shall not result
in a potential loss or forfeiture of property and all penalties shall be stayed
during such contest and (iv) the pendency of such proceedings could not be
reasonably expected to have a material adverse effect on the Borrower or its
property. The Borrower shall defend, indemnify and hold harmless Bank and the
Indemnified Parties (hereinafter defined) from and against any claims, demands,
penalties, fines, liabilities, settlements, damages, costs and expenses of
whatever kind or nature known or unknown, contingent or otherwise, arising out
of, or in any way relating to the violation of, noncompliance with or liability
under any Environmental Laws applicable to the operations of the Borrower or its
property, or any orders, requirements or demands of governmental authorities
related thereto or the release or threatened release of any hazardous materials
into the environment, including, without limitation, attorney's and consultant's
fees, investigation and laboratory fees, response costs, court costs and
litigation expenses, except to the extent that any of the foregoing arise out of
the gross negligence or willful misconduct of the party seeking indemnification
therefor. The Borrower's obligations under this Section shall survive
termination of this Note and Guaranty.
SECTION 4.2. Negative Covenants. So long as the Loan or any other amount
------------------
remains unpaid under the Note, the Borrower agrees as follows:
(a) Consolidation, Merger, etc. The Borrower will not, and will not permit
--------------------------
Borrower's Member to, liquidate or dissolve, consolidate with, or merge into or
with, any other corporation, or purchase or otherwise acquire all or
substantially all of the assets of any Person (or of any division thereof) or
otherwise cause Borrower to cease to be a single purpose entity whose sole
member is Borrower's Member and whose sole asset is Madison Plaza and whose sole
Manager is Borrower's Manager or a U.S. corporation which is a direct or
indirect wholly owned subsidiary of overseas Ltd. Nor will Borrower cause or
permit Borrower's Member to cease to be a single purpose entity wholly owned by
overseas Holding, which is in turn wholly owned by Overseas Ltd., and
12
<PAGE>
whose sole asset is its interest in Borrower. Nor will Borrower cause or permit
Borrower's Manager to cease to be wholly owned by overseas Corp. or a U.S.
corporation which is a direct or indirect wholly owned subsidiary of Overseas
Ltd.;
(b) Asset Dispositions, etc. The Borrower will not, and will not permit
-----------------------
Borrower's Member or Borrower's Manager to, sell, transfer, lease, mortgage,
encumber, contribute or otherwise convey, or grant options to convey or
mortgage, warrants or other rights with respect to its property to any person or
entity except for the leasing of space within Madison Plaza in the ordinary
course of owning and operating Madison Plaza and the financing of Madison Plaza
(provided such funds are used to prepay the Loan in full as required in Section
-------
1.1(b)) and the granting of such easements, purchase money security interests in
- -------
newly acquired personality and other rights as are not inconsistent with the
foregoing prohibition and as are in the ordinary course of owning and operating
Madison Plaza.
(c) Indebtedness. The Borrower will not create, incur or permit to exist,
------------
and will not permit Borrower's Member or Borrower's Manager to create, incur or
permit to exist, any indebtedness other than (i) this Loan (ii) the financing of
Madison Plaza (provided such funds are used to prepay the Loan in full as
required in Section 1.1(b))and (iii) customary unsecured trade payables incurred
------------------
in the ordinary course of the business of operating Madison Plaza.
SECTION 4.3. Use of Proceeds. The Borrower shall apply proceeds of the
---------------
Loan to the acquisition by the Borrower of Madison Plaza and costs reasonably
related thereto.
ARTICLE V
EVENTS OF DEFAULT
SECTION 5.1. Events of Default. If any of the following events ("Events of
----------------- -----------
Default") occurs and is continuing:
- ---------
(a) the Borrower fails to pay, within five Business Days after due, any
installment of principal of, or interest on, this Note, or any other amounts
payable hereunder;
(b) any representation or warranty made by any Loan Party under or in
connection with this Note or the Guaranty shall prove to have been incorrect in
any material respect when made;
13
<PAGE>
(c) any Loan Party fails to perform or observe any covenant or agreement
contained in Clause (e) or (f) of Section 7 or Section 8 of the Guaranty, or the
---------- --- ------- -------
Borrower fails to perform or observe any covenant or agreement contained in
clause (b) or (f) of Section 4.1, Section 4.2, or Section 4.3 hereof;
- ---------- --- ----------- ----------- -----------
(d) any Loan Party fails to perform or observe any other term, covenant or
agreement contained in this Note or the Guaranty on its part to be performed or
observed and any such failure remains unremedied for 3 days after written notice
thereof is given to the Borrower or the Guarantors, as the case may be, by the
Bank; provided that if such failure cannot be remedied within such 3 day period
then such 3 day period shall be extended for such additional period of time not
to exceed 60 days as may be necessary to complete the cure of such default
provided the Borrower commences to cure within such 3 day period and thereafter
diligently proceeds to cure such default and further provided, in no event shall
such period be extended beyond 60 days;
(e) any Loan Party or any subsidiary thereof shall generally not pay its
debts as such debts become due, or shall admit in writing its inability to pay
its debts generally, or shall make a general assignment for the benefit of
creditors; or any proceeding shall be instituted by or against any Loan Party or
any subsidiary thereof seeking to adjudicate it a bankrupt or insolvent, or
seeking liquidation, winding up, reorganization, arrangement, adjustment,
protection, relief, or composition of its debts under any law relating to
bankruptcy, insolvency or reorganization or relief of debtors, or seeking the
entry of an order for relief or the appointment of a receiver, trustee, or other
similar official for it or for any substantial part of its property; or any Loan
Party or any subsidiary thereof shall take any corporate action to authorize any
of the actions set forth above in this clause (e);
------ ----
(f) a final judgment or order for the payment of money in excess of
$1,000,000 shall be rendered against any Loan Party or any subsidiary thereof
and either (i) enforcement proceedings shall have been commenced by any creditor
upon such judgment or order or (ii) such judgment or order shall continue
unsatisfied and unstayed for a period of 60 days;
(g) any provision of the Guaranty shall for any reason cease to be valid
and binding on the Guarantor, or the
14
<PAGE>
Guarantor shall, directly or indirectly, contest the effectiveness, validity or
binding nature of the Guaranty;
(h) (i) Overseas Ltd. shall cease to own, directly or indirectly, free and
clear of all liens and other encumbrances, all of the capital stock of Overseas
Corp or of overseas Holding; or
(ii) the acquisition by any person or entity, or two or more persons
or entities acting in concert, of beneficial ownership (within the meaning of
Rule 13d-3 of the Securities and Exchange Commission under the Securities
Exchange Act of 1934) of 20% or more of the outstanding shares of voting stock
of Overseas Ltd.; or
(iii) Borrower's Member shall cease to own directly free and clear of
all liens and encumbrances, all of the membership interests of Borrower; or
(iv) Overseas Holding shall cease to own directly, free and clear of
all liens and encumbrances, all of the capital stock of Borrower's Member; or
(v) Overseas Corp. or a U.S. corporation which is a direct or indirect
wholly-owned subsidiary of Overseas Ltd. shall cease to own directly, free and
clear of all liens and encumbrances, all of the capital stock of Borrower's
Manager;
(i) there is a material adverse change in any Loan Party's financial
condition, or an event occurs or arises that materially impairs Borrower's
intended use or the physical condition or operation of Madison Plaza or any Loan
Party's ability to repay the Loan;
(j) the Borrower shall fail to acquire Madison Plaza within 30 days after
the date of this Note or to provide the Bank with the documents required under
Section 2.1(k) within 30 days after its acquisition of Madison Plaza; then, and
- ---------------
in any such event, the Bank may, by notice to the Borrower, declare the Loan,
all interest thereon and all other amounts payable pursuant to this Note (or any
other document or instrument delivered in connection herewith) to be forthwith
due and payable, whereupon the Loan, all such interest and all such other
amounts will become and be forthwith due and payable, all without presentment,
demand, protest or further notice of any kind, all of which are hereby expressly
waived by the Borrower.
15
<PAGE>
ARTICLE VI
MISCELLANEOUS
SECTION 6.1. Amendments, etc. No amendment or waiver of any provision of
---------------
this Note, nor consent to any departure by the Borrower herefrom, shall in any
event be effective unless the same shall be in writing and signed by the Bank,
and then such waiver or consent shall be effective only in the specific instance
and for the specific purpose for which given.
SECTION 6.2. Notices, etc. All notices and other communications provided
-------
for hereunder shall be in writing and mailed or telecopied or delivered at the
address specified below for the Borrower and the Bank or, as to each party, at
such other address as shall be designated by such party in a written notice to
the other party:
Address of the Borrower:
OVERSEAS PARTNERS (MADISON PLAZA) LLC
115 Perimeter Center
Suite 940
Atlanta, Georgia 30346
Attention: Corporate Secretary
Telecopy: 404-913-6756
With a copy to:
Troutman Sanders LLP
600 Peachtree Street, N,E.
Suite 5200
Atlanta, Georgia 30308-2211
Attention: James W. Addison
Telecopy: 404-885-3995
And with a copy to:
Overseas Partners Ltd.
Mintflower Place
P.O. Box HM 1581
8 Par-la-Ville Road
Hamilton HM 6X Bermuda
Attention: Corporate Secretary
Telecopy: 441-292-9142
Address of Bank:
Bank of America National Trust
& Savings Association
231 South LaSalle Street
16
<PAGE>
Chicago, Illinois 60697
Attention: Daniel Walsh
Telecopy: 312-828-5140
All notices delivered by (a) the mails shall be deemed received three days
after deposited in the mails, postage prepaid, (b) hand delivery shall be deemed
received when hand delivered, (c) United Parcel Service's or other next day air
express service, on the day after deposit, and (d) telecopier shall be deemed
received when the sender receives electronic confirmation of receipt.
SECTION 6.3. No Waiver: Remedies. No failure on the part of the Bank to
-------------------
exercise, and no delay in exercising, any right under this Note shall operate as
a waiver thereof; nor shall any single or partial exercise of any right
hereunder preclude any other or further exercise thereof or the exercise of any
other right. The remedies herein provided are cumulative and not exclusive of
any remedies provided by law.
SECTION 6.4. Costs, Expenses and Taxes. (a) The Borrower agrees to pay on
-------------------------
demand all reasonable costs and expenses of the Bank (including reasonable
counsel fees plus related disbursements) actually incurred in connection with
(i) enforcement of this Note and (ii) except to the extent arising out of the
Bank's gross negligence or wilful misconduct, any litigation or threatened
litigation (including any tort actions) relating to the Loan or the Borrower's
property, except any litigation between any Loan Party and Bank in which such
Loan Party is the prevailing party. Attorney's fees shall include the allocated
costs for services of in-house counsel calculated on the basis of Bank's direct
payroll costs for attorneys actually performing services in connection with the
Loan. Any and all payments made by the Borrower hereunder shall be made free
and clear of and without deduction for any present or future income, excise,
stamp or other taxes, fees, duties, withholdings or other charges of any nature
whatsoever imposed by any taxing authority, other than franchise taxes and taxes
imposed on or measured by the Bank's net income or receipts (such non-excluded
items being called "Taxes"), and agrees to save the Bank harmless from and
--------
against any and all liabilities with respect to or resulting from any delay in
paying or omission to pay such Taxes.
(b) If, due to payments made by the Borrower pursuant to clause (b) of
----------
Section 1.1 or due to acceleration of the maturity of this Note pursuant to
- -----------
Section 5.1, or due to any other reason, the Bank receives payments of principal
- -----------
of this Note other than on the last day of an Interest Period, the Borrower
shall pay to the Bank on demand any amounts required to compensate the Bank for
any additional losses,
17
<PAGE>
costs or expenses which it may incur as a result of such payment.
SECTION 6.5. Right of Set-off. Bank agrees that it shall have no right of
----------------
setoff against any amounts Bank holds on deposit to satisfy any indebtedness of
Borrower to the Bank with respect to the Loan. Bank hereby waives with respect
to the Loan all rights of setoff or recoupment which, under applicable law or
other agreement Bank may have with respect to all accounts or monies of
Borrower.
SECTION 6.6. Successors and Assigns. This Note shall be binding upon and
----------------------
shall inure to the benefit of the parties hereto and their respective
successors and assigns; provided, however, that the Borrower may not assign or
-------- -------
transfer all or any part of its rights or obligations hereunder without the
prior written consent of the Bank, and further provided, that the Bank may
----------------
assign or transfer all or any part of this Note only with the prior written
consent of the Borrower which shall not be unreasonably withheld or delayed by
the Borrower.
SECTION 6.7. Indemnification and Survival. The Borrower shall indemnify,
----------------------------
exonerate and hold the Bank and each of its officers, directors, employees and
agents (collectively, the "Indemnified Parties") free and harmless from and
----------------------
against any and all actions, causes of action, suits, losses, costs,
liabilities, damages and expenses incurred in connection with this Note or the
Guaranty (irrespective of whether any such Indemnified Party is a party to the
action for which indemnification hereunder is sought), including reasonable
attorneys, fees and disbursements actually incurred (collectively, the
"Indemnified Liabilities"), except for (a) any such Indemnified Liabilities
--------------------------
arising for the account of a particular Indemnified Party by reason of the
relevant Indemnified Party's gross negligence or wilful misconduct and (b)costs
and expenses incurred prior to the date hereof by the Bank in connection with
the negotiation, preparation and delivery of this Note and the Guaranty and (c)
any Indemnified Liabilities resulting from litigation between any Loan Party
and Bank in which such Loan Party is the prevailing party. If and to the
extent that the foregoing undertaking may be unenforceable for any reason, the
Borrower hereby agrees to make the maximum contribution to the payment and
satisfaction of each of the Indemnified Liabilities which is permissible under
applicable law. The Borrower's obligations under this Section survive any
termination of this Note and the Guaranty.
SECTION 6.8, Governing Law. THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED
---------------
IN ACCORDANCE WITH THE LAWS OF THE STATE OF ILLINOIS.
18
<PAGE>
SECTION 6.9. Forum Selection and Consent to Jurisdiction.
-------------------------------------------
THE BORROWER HEREBY IRREVOCABLY AND UNCONDITIONALLY:
(a) SUBMITS FOR ITSELF AND ITS PROPERTY IN ANY LEGAL ACTION OR PROCEEDING
RELATING TO THIS NOTE OR FOR RECOGNITION AND ENFORCEMENT OF ANY JUDGMENT IN
RESPECT THEREOF, TO THE EXCLUSIVE GENERAL JURISDICTION OF THE COURTS OF THE
STATE OF ILLINOIS, THE COURTS OF THE UNITED STATES OF AMERICA FOR THE NORTHERN
DISTRICT OF ILLINOIS AND APPELLATE COURTS FROM ANY THEREOF;
(b) AGREES THAT ANY SUCH ACTION OR PROCEEDING MAY BE BROUGHT IN SUCH COURTS
AND WAIVES ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE VENUE OF ANY
SUCH ACTION OR PROCEEDING IN ANY SUCH COURT OR THAT SUCH ACTION OR PROCEEDING
WAS BROUGHT IN AN INCONVENIENT COURT AND AGREES NOT TO PLEAD OR CLAIM THE SAME;
(c) AGREES THAT SERVICE OF PROCESS IN ANY SUCH ACTION OR PROCEEDING MAY BE
EFFECTED BY MAILING A COPY THEREOF BY REGISTERED OR CERTIFIED MAIL (OR ANY
SUBSTANTIALLY SIMILAR FORM OF MAIL), POSTAGE PREPAID, TO IT AT ITS ADDRESS SET
FORTH IN SECTION 6,2 OR AT SUCH OTHER ADDRESS OF WHICH THE BANK SHALL HAVE BEEN
-------
NOTIFIED PURSUANT THERETO; AND
(d) AGREES THAT NOTHING HEREIN SHALL AFFECT THE RIGHT TO EFFECT SERVICE OF
PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR SHALL LIMIT THE RIGHT TO SUE IN
ANY OTHER JURISDICTION.
The Borrower hereby irrevocably appoints CT Corporation Systems (the "Process
--------
Agent"), with an office on the date hereof at 208 S. LaSalle Street, Suite 814,
- -------
Chicago, Illinois, 60604, as its agent to receive on behalf of the Borrower and
its property service of copies of the summons and complaint and any other
process which may be served in any such action or proceeding. Such service may
be made by mailing or delivering a copy of such process to the Borrower in care
of the Process Agent at the Process Agent's above address, and the Borrower
hereby irrevocably authorizes and directs the Process Agent to accept such
service on its behalf. The Borrower agrees that a final judgment in any such
action or proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided by law,
Nothing in this Section shall affect the right of the Bank to serve legal
process in any other manner permitted by law or affect the right of the Bank to
bring any action or proceeding against the Borrower or its property in the
courts of any other jurisdictions.
19
<PAGE>
SECTION 6.10. Waiver of Jury Trial. THE BORROWER AND THE BANK HEREBY
--------------------
KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE ANY RIGHTS IT MAY HAVE TO A
TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED HEREON, OR ARISING OUT OF,
UNDER, OR IN CONNECTION WITH, THIS NOTE, OR ANY COURSE OF CONDUCT, COURSE OF
DEALING, STATEMENTS (WHETHER ORAL OR WRITTEN) OR ACTIONS WITH RESPECT THERETO.
THIS PROVISION IS A MATERIAL INDUCEMENT FOR TEE BANK ENTERING INTO THIS NOTE.
20
<PAGE>
IN WITNESS WHEREOF, the Borrower has caused the Note to be executed by its
duly authorized officer on the date first above written.
OVERSEAS PARTNERS (MADISON PLAZA)
LLC, an Illinois limited liability
Company
By: OVERSEAS PARTNERS (MADISON)
PLAZA, INC., a Delaware corporation
By: /s/ Bruce M. Barone
-------------------
Title: President
Acknowledge and Accepted:
BANK OF AMERICA NATIONAL TRUST
& SAVINGS ASSOCIATION
By:
Title:
21
<PAGE>
EXHIBIT A
GUARANTY
GUARANTY, dated as of June __, 1998 (as amended and modified from time to
time, this "Guaranty"), is made by OVERSEAS PARTNERS, LTD., a Bermuda
----------
corporation ("Overseas Ltd.") and OVERSEAS PARTNERS CAPITAL CORP., a Delaware
Corporation ('Overseas Corp') (individually a "Guarantor" and collectively the
-----------
'Guarantors'), in favor of BANK OF AMERICA NATIONAL TRUST & SAVINGS ASSOCIATION
(the "Bank"),
-------
WHEREAS, OVERSEAS PARTNERS (MADISON PLAZA) LLC, an Illinois limited
liability company (the "Borrower"), is the maker of the Term Loan Promissory
------------
Note, dated of even date herewith (the "Note"), in favor of the Bank;
--------
WHEREAS, the Bank has required that each Guarantor execute and deliver this
Guaranty as a condition precedent to the making of the Loan (such capitalized
terms and all other capitalized terms not otherwise defined herein shall have
the meanings provided for in the Note) under the Note;
NOW, THEREFORE, in consideration of the premises and in order to induce the
Bank to make the Loan under the Note, the Guarantors hereby agree as follows:
SECTION 1. Guaranty. Each Guarantor hereby jointly and severally,
--------
unconditionally guarantees the punctual payment when due, whether at stated
maturity, by acceleration or otherwise, of all obligations of the Borrower now
or hereafter existing under the Note, whether for principal, interest,
environmental matters, extension fees, expenses or otherwise (such obligations
being collectively the "Obligations"), and agrees to pay any and all expenses
--------------
(including reasonable attorney's fees and expenses) actually incurred by the
Bank in enforcing any rights under this Guaranty, Attorney's fees shall include
the allocated costs for services of in-house counsel calculated on the basis of
the Bank's direct payroll costs for attorneys actually performing services in
connection with the enforcement of any rights under this Guaranty.
SECTION 2. Guaranty Absolute. Each Guarantor guarantees that the
-----------------
obligations will be paid strictly in accordance with the terms of the Note,
regardless of any law, regulation or order now or hereafter in effect in any
jurisdiction affecting any of such terms or the rights of the Bank with- respect
thereto. The liability of each Guarantor under this Guaranty shall be absolute
and unconditional irrespective of:
22
<PAGE>
(a) any lack of validity or enforceability of the Note;
(b) any change in the time, manner or place of payment of, or in any other
term of, all or any of the obligations or obligations of the Borrower now or
hereafter existing under the Note, whether for principal, interest, expenses or
otherwise (collectively,, the "Note Obligations"), or any other amendment or
-------------------
waiver of or any consent to departure from the Note;
(c) any exchange, release or non-perfection of any collateral, or any
release or amendment or waiver of or consent to departure from any other
guaranty, for all or any of the obligations or the Note Obligations; or
(d) any other circumstance which might otherwise constitute a defense
available to, or a discharge of, the Borrower or any other guarantor.
This Guaranty shall continue to be effective or be reinstated, as the case
may be, if at any time any payment of any of the obligations or the Note
Obligations is rescinded or must otherwise be returned by the Bank upon the
insolvency, bankruptcy or reorganization of the Borrower or otherwise, all
as though such payment had not been made.
SECTION 3. Waiver, etc.
-----------
(a) Except as may be specifically set forth herein, each Guarantor hereby
waives promptness, diligence, notice of acceptance and any other notice with
respect to any of the Obligations, Note Obligations and this Guaranty and any
requirement that the Bank exhaust any right or take any action against the
Borrower or the other Guarantor or any other person or entity or any collateral.
(b) Anything in this Guaranty or otherwise notwithstanding, this Guaranty
is fully enforceable at the same time the Note is enforceable, and the Bank
shall not be required to exercise any remedies, or take any action against or
with respect to, the Borrower or the Note prior to the exercise of all or any of
its rights hereunder. Without limiting the foregoing, at any time any of the
Note Obligations have not been paid when and as due, the Guarantor shall make
payment thereon directly to the Bank. This provision is a material inducement
to the Bank making the Loan under the Note to the Borrower.
SECTION 4. Subrogation. The Guarantor will not exercise any rights against
-----------
Borrower which it may acquire by way of
23
<PAGE>
subrogation under this Guaranty, by any payment made hereunder or otherwise,
until all the Obligations and Note Obligations shall have been paid in full in
cash. If any amount shall be paid to the Guarantor on account of such
subrogation rights at any time when all the Obligations and Note Obligations
shall not have been paid in full in cash, such amount shall be held in trust for
the benefit of the Bank and shall forthwith be paid to the Bank to be credited
and applied upon the Obligations, whether matured or unmatured, in accordance
with the terms of the Note.
SECTION 5. Payments Free and Clear of Taxes, Etc. (a) Any and all payments
-------------------------------------
made by either Guarantor hereunder shall be made free and clear of and without
deduction for any present or future income, excise, stamp or other taxes, fees,
duties, withholdings or other charges of any nature whatsoever imposed by any
taxing authority, other than franchise taxes and taxes imposed on or measured by
the Lender's net income or receipts (such non-excluded items being called
"Taxes"). If either Guarantor shall be required by law to deduct any Taxes from
or in respect of any sum payable hereunder, (i) the sum payable shall be
increased as may be necessary so that after making all required deductions
(including deductions applicable to additional sums payable under this Section)
the Bank receives an amount equal to the sum it would have received had no such
deductions been made, (ii) the Guarantors shall make such deductions and (iii)
the Guarantors shall pay the full amount deducted to the relevant taxation
authority or other authority in accordance with applicable law.
(b) In addition, each Guarantor agrees to pay any present or future stamp
or documentary taxes, or any other excise or property taxes, charges or similar
levies which arise from any payment made hereunder or from the execution,
delivery or registration of, or otherwise with respect to, this Guaranty
(hereinafter referred to as "Other Taxes").
--------------
(c) Each Guarantor will indemnify the Bank for the full amount of Taxes or
Other Taxes (including, without limitation, any Taxes or Other Taxes imposed by
any jurisdiction on amounts payable under this section) paid by the Bank and any
liability (including penalties, interest and expenses) arising therefrom or with
respect thereto, whether or not such Taxes or Other Taxes were correctly or
legally asserted;
(d) Without prejudice to the survival of any other agreement of the
Guarantors hereunder, the agreements and obligations of the Guarantors contained
in clauses (a) through (c) above shall survive the payment in full of principal
----------- ---
of and interest on the Loan and the termination of the Note.
SECTION 6, Representations and Warranties. Each Guarantor hereby represents and
------------------------------
warrants as follows:
24
<PAGE>
(a) Overseas Ltd. is a corporation duly organized, validly existing and in
good standing under the laws of Bermuda, and Overseas Corp. is a corporation
duly organized, validly existing and in good standing under the laws of Delaware
and each Guarantor is duly qualified to do business and is in good standing as a
foreign corporation in each jurisdiction where the nature of its business
requires such qualification, except where the failure to be so qualified or be
in good standing would not have a material adverse effect on such Guarantor, its
businesses, its ability to perform its obligations hereunder, or the validity or
enforceability of this Guaranty.
(b) The execution, delivery and performance of this Guaranty by each
Guarantor and each other document or instrument delivered by each Guarantor in
connection herewith are within its corporate powers, have been duly authorized
by all necessary corporate action and do not contravene
(i) its certificate of incorporation or by-laws;
(ii) any law, rule or regulation applicable to the Guarantor; or
(iii) any contractual restriction binding on or affecting such
Guarantor.
(c) No authorization, approval or other action by, and no notice to or
filing with, any governmental authority or regulatory body is required for the
due execution, delivery and performance by the Guarantors of this Guaranty.
(d) This Guaranty is the legal, valid and binding obligation of each
Guarantor enforceable against each Guarantor in accordance with its terms.
(e) The balance sheets of each Guarantor and its subsidiaries as at March
31, 1998, and the related statement of income and retained earnings and changes
in financial position for the fiscal year then ended, copies of which have been
furnished to the Bank, fairly present its financial condition as at such date
and the results of its operations for the period ended on such date, all in
accordance with generally accepted accounting principles consistently applied.
(f) Since March 31, 1998, there has been no material adverse change in
either Guarantor's consolidated financial condition, operations or prospects.
25
<PAGE>
(g) Except as may be disclosed on the balance sheets of each Guarantor,
there is no pending or threatened action or proceeding affecting either
Guarantor or any of its subsidiaries before any court, governmental agency or
arbitrator, which could, if adversely determined, reasonably be expected to have
a materially adverse effect upon the financial condition or operations of such
Guarantor and its subsidiaries, taken as a whole.
(h) Neither Guarantor nor any of its property has any immunity from
jurisdiction of any court or from any legal process (whether through service of
notice, attachment prior to judgment, attachment in aid of execution, execution
or otherwise) under the laws of Bermuda.
(i) There is no tax, levy, impost, deduction, charge or withholding imposed
by Bermuda or any political subdivision thereof either (i) on or by virtue of
the execution or delivery of this Guaranty or (ii) on any payment to be made by
the Guarantors pursuant to this Guaranty.
(j) To ensure the legality, validity, enforceability or admissibility in
evidence of this Guaranty in Bermuda, it is not necessary that this Guaranty or
any other document be filed or recorded with any court or other authority in
Bermuda.
(k) Overseas Ltd. owns, directly or indirectly, free and clear of all liens
and other encumbrances, all of the capital stock of Overseas Corp. and of
Overseas Holding Company,, Inc. ("Overseas Holding") and Overseas Holding owns
--------------------
directly free and clear of all liens and other encumbrances, all of the capital
stock of OVERSEAS PARTNERS(MADISON PLAZA) . INC. ("Borrower's Member") and
---------------------
Borrower's Member owns directly free and clear of all liens and other
encumbrances, all of the membership interests of Borrower.
(1) The Guarantors will each benefit from the Bank making the Loan to the
Borrower.
SECTION 7. Affirmative Covenants. So long as the Loan or any other amount
---------------------
under the Note remains unpaid, each Guarantor will, and will cause each of its
subsidiaries (including the Borrower and Borrower's Member) to:
(a) Maintain Property. Maintain and preserve, and cause each of its
-----------------
subsidiaries to maintain and preserve, all of its or their properties which are
used or useful in the
26
<PAGE>
conduct of its or their business in good working order and condition, ordinary
wear and tear excepted.
(b) Business Activities. Continue to engage in the same general type of
-------------------
business as now conducted by it and its subsidiaries and preserve, renew and
keep in full force and effect, and cause each such subsidiary to preserve, renew
and keep in full force and effect, its and their respective corporate or
partnership existence in good standing and its and their rights, privileges and
franchises which are necessary or desirable in the normal conduct of its and
their businesses.
(c) Books and Records. Keep and cause its subsidiaries to keep books and
-----------------
records reflecting all of its and their business affairs and transactions in a
manner which permits the preparation of financial statements in accordance with
generally accepted accounting principles prevailing from time to time in the
United States ("GAAP'"); and permit the Bank's representatives to visit and
inspect any of the properties of the Guarantor and its subsidiaries, to examine
and make abstracts from any of the books and records of the Guarantor and such
subsidiaries and to discuss the affairs, transactions, finances and accounts of
the Guarantor and its subsidiaries with any of their respective officers,
directors or independent public accountants, all at such reasonable times and as
often as may reasonably be desired.
(d) Compliance with Laws, Etc. Comply, and cause its subsidiaries to
-------------------------
comply, in all material respects with all applicable laws, rules, regulations
and orders, such compliance to include paying before the same become delinquent,
all taxes, assessments and governmental charges imposed upon such Guarantor and
its subsidiaries or any of their properties, except to the extent contested in
good faith and by appropriate proceedings promptly instituted and diligently
pursued.
(e) Members' Equity of Overseas Ltd. In the case of Overseas Ltd.,
-------------------------------
maintain a minimum members' equity of not less than $1,000,000,000.00 as
reported in Overseas Ltd.'s consolidated GAAP financial statements. "Minimum
members' equity" means the gross book value of Overseas Ltd.'s assets (excluding
goodwill, patents, trademarks, trade names, organization expense, treasury
stock, unamortized debt discount and expense, capitalized or deferred research
and development costs, deferred marketing expenses, deferred receivables, and
other like intangibles, and monies due from affiliates, officers, directors,
employees, shareholders, members or managers of Borrower) less total liabilities
27
<PAGE>
including but not limited to accrued and deferred income taxes and any reserves
against assets.
(f) Total Liabilities of Overseas Ltd. In the case of Overseas Ltd.,
---------------------------------
maintain total liabilities on a consolidated basis which are not in excess of
(and do not at any time exceed) $2,000,000,000.00. Total liabilities shall mean
all liabilities as reported in Overseas Ltd.'s consolidated GAAP financial
statements including the sum of all current liabilities plus all long term
liabilities, letter of credit liabilities, capitalized lease liabilities and
minority liabilities capitalized interests.
(g) Reporting Requirements. Each Guarantor will, and will cause its
------------------------
subsidiaries, to furnish to the Bank:
(i) as soon as available and in any event within 45 days after the end
of each of each Guarantor's first three quarters of each of its fiscal years,
consolidated balance sheets of each Guarantor and its consolidated subsidiaries
as of the end of such quarter and consolidated statements of income and retained
earnings and changes in financial position of each Guarantor and its
consolidated subsidiaries for the period commencing at the end of the previous
fiscal year and ending with the end of such quarter, certified by an authorized
officer of such Guarantor as having been prepared in accordance with GAAP
consistent with those applied in the preparation of the financial statements
referred to in clause (e) of Section 6;
---------- ---------
(ii) as soon as available and in any event within 120 days after the
end of each of each Guarantor's fiscal years a copy of the annual report for
such year for such Guarantor and its subsidiaries, containing consolidated
financial statements for such year audited and certified in a manner reasonably
acceptable to the Bank by Deloitte & Touche or other independent public
accountants reasonably acceptable to the Bank.
(iii) as soon as possible and in any event within five days after the
occurrence of any Event of Default and each event which, with the giving of
notice or lapse of time, or both, would constitute an Event of Default (a
"Default"), a statement of an authorized officer of each Guarantor setting
- -----------
forth details of such Event of Default or Default and the action which has been
taken or is proposed to be taken with respect thereto;
28
<PAGE>
(iv) promptly after the sending or filing thereof, copies of all
reports which each Guarantor or any of its subsidiaries sends to any of its
security holders, and copies of all reports and registration statements which
each Guarantor or any of its subsidiaries files with the Securities and Exchange
Commission or any national securities exchange;
(v) as soon as available and in any event within 45 days after the end
of Overseas Ltd.'s fiscal quarter, a certificate executed by an authorized
officer of Overseas Ltd., showing (in reasonable detail and with appropriate
calculations and computations in all respects reasonably satisfactory to the
Bank) compliance with the financial covenants set forth in clauses (e) and (f)
----------- ---
of this Section;
(vi) promptly upon the execution of a commitment letter or mandate
letter relating to the financing referred to in clause (b) of Section 1.1 of the
---------- -----------
Note, notice thereof to the Bank;
(vii) prompt notice of any litigation or other circumstances, event or
occurrence affecting any Loan Party or Madison Plaza that may reasonably be
expected to result in a material adverse change in (i) the financial condition
of any Loan Party, (ii) any Loan Party's ability to timely perform any of its
obligations under the Note or Guaranty(iii) the physical condition or operation
of the Madison Plaza.
(viii) such other information respecting the condition or operations,
financial or otherwise, of the Guarantors or any of their subsidiaries as the
Bank may from time to time reasonably request.
SECTION 8. Negative Covenants. So long as the Loan or any other amount
------------------
remains unpaid under the Note, each Guarantor agrees as follows:
(a) Consolidation, Merger, etc. Each Guarantor will not, and will not
--------------------------
permit any of its subsidiaries too liquidate or dissolve, consolidate with, or
merge into or with, any other corporation, or purchase or otherwise acquire all
or substantially all of the assets of any Person (or of any division thereof);
provided, however, that notwithstanding the foregoing,
- -----------------
(i) any such subsidiary of a Guarantor may liquidate or dissolve
voluntarily into, and may merge
29
<PAGE>
with and into, such Guarantor or any other direct or indirect subsidiary of such
Guarantor, and the assets or stock of any such subsidiary may be purchased or
otherwise acquired by such Guarantor or any other such direct or indirect
subsidiary;
(ii) so long as no Default has occurred and is continuing or would occur
after giving effect thereto, such Guarantor or any of its direct or indirect
subsidiaries may purchase all or substantially all of the assets or stock of any
person; and
(iii) any such subsidiary may liquidate or dissolve voluntarily into, and
may merge with and into, any corporation which is not a subsidiary of such
Guarantor, provided that, (a) the surviving corporation shall be a direct or
-------- ----
indirect subsidiary of such Guarantor, (b) such Guarantor or its direct or
indirect subsidiary shall own at least the same percentage of the outstanding
voting stock interests of the surviving corporation as such Guarantor or its
direct or indirect subsidiary owned of such subsidiary prior to such merger,
liquidation or consolidation and (c) after giving effect thereto, no Default
would occur or be continuing.
(b) Asset Dispositions, etc. Each Guarantor will not, and will not permit
-----------------------
any of its subsidiaries to, sell, transfer, lease, contribute or otherwise
convey, or grant options, warrants or other rights with respect to, all or
substantially all of its assets to any person or entity.
SECTION 9. Judgment. (a) If, for the purposes of obtaining judgment in
--------
any court, it is necessary to convert a sum due hereunder from another currency
into United States dollars, the parties hereto agree, to the fullest extent
permitted by law, that the rate of exchange used shall be that at which in
accordance with normal banking procedures the Bank could purchase United States
dollars with such other currency on the Business Day preceding that on which
final judgment is given.
(b) The obligation of a Guarantor in respect of any sum due from it to the
Bank hereunder shall, notwithstanding any judgment in a currency other than
United States dollars, be discharged only to the extent that on the Business Day
following receipt by the Bank of any sum adjudged to be so due in such other
currency the Bank may in accordance with normal banking procedures purchase
United States dollars with such other currency; if the United States dollars so
purchased are less than the sum originally due to the Bank in the United States
dollars, the
30
<PAGE>
Guarantors agree, as a separate obligation and notwithstanding any such
judgment, to indemnify the Bank against such loss.
SECTION 10. Indemnification and Survival. Each Guarantor shall indemnify,,
----------------------------
exonerate and hold the Bank and each of its officers, directors, employees and
agents (collectively, the "Indemnified Parties") free and harmless from and
------------
against any and all actions, causes of action, suits, losses, costs,
liabilities, damages and expenses incurred in connection with the Note or this
Guaranty (irrespective of whether any such Indemnified Party is a party to the
action for which indemnification hereunder is sought), including reasonable
attorneys' fees and disbursements actually incurred (collectively, the
"Indemnified Liabilities"), except for (a)any such Indemnified Liabilities
- --------------------------
arising for the account of a particular Indemnified Party by reason of the
relevant Indemnified Party's gross negligence or wilful misconduct and (b) costs
and expenses incurred on or prior to the date hereof by the Bank in connection
with the negotiation, preparation and delivery of the Note and this Guaranty,
and (c) any Indemnified Liabilities resulting from litigation between any Loan
Party and Bank in which such Loan Party is the prevailing party. If and to the
extent that the foregoing undertaking may be unenforceable for any reason, each
Guarantor hereby agrees to make the maximum contribution to the payment and
satisfaction of each of the Indemnified Liabilities which is permissible under
applicable law. Each Guarantor's obligations under this Section shall survive
any termination of this Guaranty.
SECTION 11. Amendments, etc. No amendment or waiver of any provision of
---------------
this Guaranty nor consent to any departure by any Guarantor therefrom shall in
any event be effective unless the same shall be in writing and signed by the
Bank, and then such waiver or consent shall be effective only in the specific
instance and for the specific purpose for which given.
SECTION 12. Addresses for Notices. All notices and other communications
---------------------
provided for hereunder shall be in writing and, if to a Guarantor, mailed or
telecopied or delivered at the address specified below, or if to the Bank,
mailed or telecopied or delivered to it, addressed to it at the address of the
Bank specified in the Note, or as to each party, at such other address as shall
be designated by such party in a written notice to the other party:
Address of the Guarantors:
Overseas Partners Ltd,
Mintflower Place
P.O. Box HM 1581
8 Par-la-Ville Road
Hamilton HM 6X Bermuda
31
<PAGE>
Attention: Corporate Secretary
Telecopy: 441-292-9142
with a copy to:
Overseas Partners Capital Corp.
115 Perimeter Center
Suite 940
Atlanta- Georgia 30346
Attention: Corporate Secretary
Telecopy: 404-913-6756
With a copy to:
Overseas Partners Ltd.
Mintflower Place
P.O. Box HM 1581
8 Par-la-Ville Road
Hamilton HM 6X Bermuda
Attention: Thomas E. Butler
Telecopy: 441-292-9142
With a copy to:
Troutman Sanders LLP
600 Peachtree Street, N.E.
Suite 5200
Atlanta, GA 30308-2211
Attention: James W. Addison
Telecopy: 404-885-3995
All notices delivered by (i) the mails shall be deemed received four days
after deposited in the mails, postage prepaid, (ii) hand delivery shall be
deemed received when hand delivered, (iii) United Parcel Service's or other next
day air express service, on the second day after deposit, and (iv) telecopier
shall be deemed received when the sender receives electronic confirmation of
receipt.
SECTION 13. No Waiver; Remedies. No failure on the part of the Bank to
-------------------
exercise, and no delay in exercising, any right hereunder shall operate as a
waiver thereof; nor shall any single or partial exercise of any right hereunder
preclude any other or further exercise thereof or the exercise of any other
right. The remedies herein provided are cumulative and not exclusive of any
remedies provided by law.
SECTION 14. No Right of Set-off. Bank agrees that it shall have no right
-------------------
of setoff against any amounts Bank holds on deposit to satisfy any indebtedness
of either Guarantor to the Bank with
32
<PAGE>
respect to the Loan. Bank hereby waives with respect to the Loan all rights of
setoff or recoupment which, under applicable law or other agreement, Bank may
have with respect to all accounts or monies of either Guarantor.
SECTION 15. Continuing Guaranty; Transfer of Note; Joint and Several.
--------------------------------------------------------
This Guaranty is a continuing guaranty and shall (i) remain in full force and
effect until payment in full of the Obligations and all other amounts payable
under this Guaranty, (ii) be binding upon each Guarantor, its successors and
assigns, and (iii) inure to the benefit of and be enforceable by the Bank and
its successors, transferees and assigns. All obligations under this Guaranty are
joint and several to each of the Guarantors.
SECTION 16. Governing Law. THIS GUARANTY SHALL BE GOVERNED BY AND
-------------
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF ILLINOIS.
SECTION 17. Forum Selection and Consent to Jurisdiction. EACH GUARANTOR
-------------------------------------------
HEREBY IRREVOCABLY AND UNCONDITIONALLY:
(a) SUBMITS FOR ITSELF AND ITS PROPERTY IN ANY LEGAL ACTION OR
PROCEEDING RELATING TO THIS GUARANTY OR FOR RECOGNITION AND ENFORCEMENT OF ANY
JUDGMENT IN RESPECT THEREOPT TO THE NON-EXCLUSIVE GENERAL JURISDICTION OF THE
COURTS OF THE STATE OF ILLINOIS THE COURTS OF THE UNITED STATES OF AMERICA FOR
THE NORTHERN DISTRICT OF ILLINOIS, AND APPELLATE COURTS FROM ANY THEREOF;
(b) AGREES THAT ANY SUCH ACTION OR PROCEEDING MAY BE BROUGHT IN SUCH
COURTS AND WAIVES ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE VENUE
OF ANY SUCH ACTION OR PROCEEDING IN ANY SUCH COURT OR THAT SUCH ACTION OR
PROCEEDING WAS BROUGHT IN AN INCONVENIENT COURT AND AGREES NOT TO PLEAD OR CLAIM
THE SAME;
(c) AGREES THAT SERVICE OF PROCESS IN ANY SUCH ACTION OR. PROCEEDING
MAY BE EFFECTED BY MAILING A COPY THEREOF BY REGISTERED OR CERTIFIED MAIL (OR
ANY SUBSTANTIALLY SIMILAR FORM OF MAIL), POSTAGE PREPAID TO IT AT ITS ADDRESS
SET FORTH IN SECTION 12 OR AT SUCH OTHER ADDRESS OF WHICH THE BANK SHALL HAVE
----------
BEEN NOTIFIED PURSUANT THERETO; AND
(d) AGREES THAT NOTHING HEREIN SHALL AFFECT THE RIGHT TO EFFECT
SERVICE OF PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR SHALL LIMIT THE RIGHT
TO SUE IN ANY OTHER JURISDICTION.
Each Guarantor hereby irrevocably appoints CT Corporation Systems (the "Process
--------
Agent") , with an office on the date hereof at 208
- -------
33
<PAGE>
S. LaSalle Street, Suite 814, Chicago, Illinois, 60604 as its agent to receive
on behalf of such Guarantor and its property service of copies of the summons
and complaint and any other process which may be served in any such action or
proceeding. Such service may be made by mailing or delivering a copy of such
process to such Guarantor in care of the Process Agent at the Process Agent's
above address, and each Guarantor hereby irrevocably authorizes and directs the
Process Agent to accept such service on its behalf. Each Guarantor agrees that
a final judgment in any such action or proceeding shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment or in any other manner
provided by law. Nothing in this Section shall affect the right of the Bank to
serve legal process in any other manner permitted by law or affect the right of
the Bank to bring any action or proceeding against the Guarantors or their
property in the courts of any other jurisdictions.
SECTION 18. Waiver of Jury Trial. EACH GUARANTOR AND THE BANK HEREBY
--------------------
KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE ANY RIGHTS IT MAY HAVE TO A TRIAL
BY JURY IN RESPECT OF ANY LITIGATION BASED HEREONE OR ARISING OUT OF, UNDER, OR
IN CONNECTION WITH THIS GUARANTOR OR ANY COURSE OF CONDUCT, COURSE OF DEALING,
STATEMENTS (WHETHER ORAL OR WRITTEN) OR ACTIONS WITH RESPECT THERETO, THIS
PROVISION IS A MATERIAL INDUCEMENT FOR THE BANK ENTERING INTO THIS GUARANTY,
SECTION 19. Counterparts. This Guaranty may be executed in separate
------------
counterparts. Each counterpart when so executed shall be deemed to be an
original. All counterparts taken together shall constitute one complete
agreement.
34
<PAGE>
IN WITNESS WHEREOF, each Guarantor has caused this Guaranty to be duly
executed and delivered by its officer thereunto duly authorized as of the date
first above written.
OVERSEAS PARTNERS, LTD.
By: /s/ Bruce M. Barone
-------------------
Title: President & CEO
Signed: Hamilton, Bermuda, 6/30/98
OVERSEAS PARTNERS CAPITAL CORP.
By: /s/ Bruce M. Barone
-------------------
Title: President
35
<PAGE>
EXHIBIT B
(Letterhead of Illinois Counsel
to the Guarantor and the Borrower]
[Date of Loan]
Bank of America National Trust
& Savings Association
231 South LaSalle Street
Chicago, Illinois 60697
Ladies and Gentlemen:
This opinion is furnished to you pursuant to clause (g) of Section 2.1 of
the Term Loan Promissory Note, dated June , 1998 (the "Note"), made by
-------
OVERSEAS PARTNERS (MADISON PLAZA) LLC (the "Borrower") in favor of Bank of
-----------
America National Trust & Savings Association (the "Bank"). Terms defined in the
-------
Note are used herein as therein defined.
We have acted as counsel for the Borrower, and Borrower's sole member,
OVERSEAS PARTNERS (MADISON PLAZA), INC. ('Borrower's Member) and Overseas
------------ --------
Partners, Ltd. ("Overseas Ltd.") and Overseas Partners Capital Corp. ("Overseas
----------------- ----------
Corp.") (Overseas Ltd. and Overseas Corp. are individually, the "Guarantor" and
- ------- -----------
collectively, the 'Guarantors') in connection with the preparation, execution
-------------
and delivery of, and the Loan made pursuant to, the Note.
In that connection, we have examined:
(1) the execution copy of the Note;
(2) the execution copy of the Guaranty;
(3) the organizational documents of the Borrower, Borrower's Member
and Overseas Corp. and all amendments thereto (collectively, the
"Charter");
---------
(4) the other documents furnished by the Borrower pursuant to Section
2.1 of the Note; and
(5) a certificate of the Secretary of State of the state of its
formation and Illinois (if different) for each of Borrower,
Borrower's Member and Overseas Corp., attesting to the due
incorporation, continued corporate existence and good standing of
the Borrower, Borrower's Member and Overseas Corp.
36
<PAGE>
We have also examined the originals, or copies certified to our satisfaction, of
such other corporate records of the Borrower, Borrower's Member and the
Guarantors, certificates of public officials and of officers of the Borrower,
Borrower's Member and the Guarantors, and agreements, instruments and other
documents, as we have deemed necessary as a basis for the opinions expressed
below. As to questions of fact material to such opinions, we have, when
relevant facts were not independently established by us, relied, to the extent
we deemed appropriate, upon certificates of the Borrower, Borrower's Member and
the Guarantors or each of their officers or of public officials.
We are qualified to practice law in the State of Illinois and we do not
purport to be experts on any laws other than the laws of the State of Illinois,
the General Corporation Law of the State of Delaware and the Federal laws of the
United States of America.
Based upon the foregoing and upon such investigation as we have deemed
necessary, we are of the following opinion:
1. Borrower is a limited liability company duly organized, validly
existing and in good standing under the laws of the State of Illinois.
2. Borrower's Member is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware, and is
duly qualified to do business and is in good standing as a foreign corporation
in Illinois.
3. Overseas Corp. is a corporation duly organized, validly existing
and in good standing under the laws of the State of Delaware, and is duly
qualified to do business and is in good standing as a foreign corporation in
each jurisdiction where the nature of its business requires such qualification,
except where the failure to be so qualified or be in good standing would not
have a material adverse effect on Overseas Corp., its businesses, its ability to
perform its obligations under the Guaranty or the validity or enforceability of
the Guaranty.
4. The execution, delivery and performance of the Note by the
Borrower and Borrower's Member on behalf of Borrower and the Guaranty by
Overseas Corp. are within the company or corporate powers of the Borrower,
Borrower's Member and Overseas Corp. respectively, and have been duly authorized
by all necessary corporate action of the Borrower, Borrower's Member and
Overseas Corp, respectively. The execution, delivery and performance of the
Note by the Borrower and Borrower's Member on behalf of Borrower and the
Guaranty by Overseas Corp. do not contravene the Charter of
37
<PAGE>
any of them. The execution, delivery and performance of the Note by the
Borrower and Borrower's Member on behalf of Borrower and the Guaranty by
Overseas Corp. will not violate:
(i) any law, rule or regulation of the States of Illinois and
Delaware, the United States applicable to the Borrower (including, without
limitation, Regulation G, T, U or X of the Board of Governors of the Federal
Reserve System); or
(ii) to the best of our knowledge, after due inquiry, any contractual
restriction binding on or affecting the Borrower, Borrower's Member,, Overseas
Corp. or any of their properties.
5. No authorization, approval or other action by, and no notice to or
filing with, any governmental authority or regulatory body of the States of
Illinois or Delaware or the United States is required in connection with the due
execution, delivery and performance of the Note by the Borrower and the
Borrower's Member on behalf of Borrower and the Guaranty by Overseas Corp.
6. The Note and Guaranty have been duly executed and delivered by the
Borrower, Borrower's Member and Overseas Corp., respectively, and constitute the
legal, valid and binding obligation of the Borrower and Overseas Corp.,
respectively, enforceable against the Borrower and Overseas Corp. in accordance
with their respective terms.
7. Assuming the Guaranty has been duly authorized, executed and delivered
by Overseas Ltd. and no authorization, approval or other action by, and notice
to or filing with, any governmental authority or regulatory body of Bermuda is-
necessary in connection therewith, the Guaranty constitutes the legal, valid and
binding obligation of Overseas Ltd. in accordance with its terms.
8. None of the Borrower, Borrower's Member or overseas Corp. is engaged in
the business of extending credit for the purpose of purchasing or carrying
margin stock (within the meaning of Regulation U issued by the Board of
Governors of the Federal Reserve System).
9. None of the Borrower, Borrower's Member or overseas Corp. is an
"investment company", or a company "controlled" by an "investment company",
within the meaning of the Investment Company Act of 1940,-as amended; nor is the
Borrower, Borrower's Member or either Guarantor a "holding company", a
"subsidiary company" of a "holding company", or
38
<PAGE>
an "affiliate" of a "holding company" or of a "subsidiary company" of a "holding
company", within the meaning of the Public Utility Holding Company Act of 1935,
as amended.
The opinions set forth above are subject to the following qualifications:
(a) No opinion is rendered as to matters not specifically referred to
herein and you may not infer from anything stated herein or not stated herein
any opinions with respect thereto.
(b) Certain of the waivers of rights contained in the Note and the
Guaranties including, by way of example and not by way of limitation, the right
to jury trial, may be limited by law.
(c) Our opinion set forth in Paragraph 4 above is subject to the effect of
-----------
any applicable bankruptcy, insolvency, reorganization, moratorium or similar law
affecting creditors, rights generally, and is subject to the effect of general
principles of equity, including (without limitation) concepts of materiality,
reasonableness, good faith and fair dealing (regardless of whether considered in
a proceeding in equity or at law).
(d) No opinion is rendered as to whether a Federal or State court outside
of the Sate of Illinois would give effect to (i) the choice of Illinois law
provided for in the Notes and Guaranties, or (ii) the submission by the Borrower
and the Guarantor to ' the non-exclusive jurisdiction of Illinois courts or
Federal courts of the United States of America, sitting in Illinois.
The opinions set forth herein are intended only for your benefit and may not
be relied upon by, or delivered to, any other person or entity without our prior
written permission.
Very truly yours,
39
<PAGE>
EXHIBIT C
(Letterhead of Overseas Ltd. Bermuda Counsel]
(Date of Loan]
Bank of America National Trust
& Savings Association
231 South LaSalle Street
Chicago, Illinois 60697
Ladies and Gentlemen:
RE: OVERSEAS PARTNERS LTD. (the "COMPANY")
--------------------------------------
We have acted as special legal counsel in Bermuda to the Company in
connection with a guaranty dated as of June , 1998 (the "Guaranty") made by the
Company and Overseas Partners Capital Corp. in favor of Bank of America National
Trust & Savings Association (the "Bank").
For the purposes of giving this opinion we have examined copies of the
following documents as executed:
(i) the Guaranty; and
(ii) a Term Loan Promissory Note dated as of June , 1998 (the "Note")
made by OVERSEAS PARTNERS (MADISON PLAZA) LLC in favor of the Bank.
The Note and the Guaranty are herein sometimes collectively referred to as
the "Documents".
We have also reviewed the memorandum of association and the by-laws of the
Company, minutes of a meeting of its Directors held on , , 1998,
resolutions adopted at a meeting of the Company's Investment Committee held on
, , 1998, and certified by an Assistant Secretary of the Company and
such other documents and made such enquiries as to questions of law as we have
deemed necessary in order to render the opinion set forth below.
We have assumed (a) the genuineness and authenticity of all signatures and
the conformity to the originals of all copies of documents (whether or not
certified) of all documents reviewed by us, (b) the capacity, power and
authority of each of the parties to the Documents, other than the Company, (c)
the due execution of the Documents by each of the parties thereto, other than
the
40
<PAGE>
Company and the delivery of the Documents by each of the parties thereto, (d)
the accuracy and completeness of all factual representations made in the
Documents and other documents reviewed by us, (e) that there is no provision of
the law of any jurisdiction, other than Bermuda, which would have any
implication in relation to the opinions expressed herein, (f) the validity and
binding effect under the laws of the State of Illinois (the "Foreign Laws") of
the Documents which are expressed to be subject to such Foreign Laws in
accordance with their respective terms, (g) the validity under the Foreign Laws
of the submission by the Company pursuant to the Guaranty to the non-exclusive
jurisdiction of the courts of the State of Illinois, the courts of the United
States of America for the Northern District of Illinois and appellate courts
from any thereof (the "Foreign Courts").
The obligations of the Company under the Guaranty (a) will be subject to the
laws from time to time in effect relating to bankruptcy, insolvency,
liquidation, possessory liens, rights of set off, reorganization, amalgamation,
moratorium or any other laws or legal procedures, whether of a similar nature or
otherwise, generally affecting the rights of creditors, (b) will be subject to
statutory limitation of the time within which proceedings may be brought, (c)
will be subject to general principles of equity and, as such, specific
performance and injunctive relief, being equitable remedies, may not be
available, (d) may not be given effect to by a Bermuda court, whether or not it
was applying the Foreign Laws, if and to the extent they constitute the payment
of an amount which is in the nature of a penalty and not in the nature of
liquidated damages.
We have made no investigation of and express no opinion in relation to the
laws of any jurisdiction other than Bermuda. This opinion is to be governed by
and construed in accordance with the laws of Bermuda and is limited to and is
given on the basis of the current law and practice in Bermuda. This opinion is
issued solely for your benefit and is not to be relied upon by any other person,
firm or entity or in respect of any other matter.
On the basis of and subject to the foregoing, we are of the opinion that:
1. The Company is duly incorporated and existing under the laws of
Bermuda.
2. The Company has the necessary corporate power and authority to enter
into and perform its obligations under the Guaranty. The execution and
delivery of the Guaranty by the Company and the performance by the
Company of its obligations thereunder will not violate
41
<PAGE>
the memorandum of association or by-laws of the Company nor any
applicable law, regulation, order or decree in Bermuda.
3. The Company has taken all corporate action required to authorize its
execution, delivery and performance of the Guaranty. The Guaranty has
been duly executed and delivered by or on behalf of the Company.
4. No order, consent, approval, license, authorization or validation of
or exemption by any government or public body or authority of Bermuda
or any sub-division thereof is required to authorize or is required in
connection with the execution, delivery, performance and enforcement
of the Guaranty.
5. It is not necessary or desirable to ensure the enforceability in
Bermuda of the Guaranty that it be registered in any register kept by,
or filed with, any governmental authority or regulatory body in
Bermuda.
6. The Guaranty will not be subject to ad valorem stamp duty excise or
similar tax in Bermuda.
7. There is no income or other tax of Bermuda imposed by withholding or
otherwise on any payment to be made to or by the Company under the
Guaranty.
8. It is not necessary under the laws of Bermuda (a) in order to enable
the Bank to enforce its rights under the Guaranty or (b) by reason of
the execution of the Guaranty by the Company, that the Bank be
licensed or qualified or otherwise entitled to carry on business in
Bermuda.
9. The choice of the Foreign Laws to govern the Guaranty is a valid
choice of law and the submission therein by the Company to the non-
exclusive jurisdiction of the Foreign Courts is valid and binding upon
the Company.
10. The courts of Bermuda would recognize as a valid judgment, a final and
conclusive judgment in personam obtained in the Foreign Courts against
the Company based upon the Guaranty under which a sum of money is
payable (other than a sum of money payable in respect of multiple
damages, taxes or other charges of a like nature or in respect of a
fine or other penalty) and would give a judgment based thereon
provided that (a) such courts had proper jurisdiction over the parties
subject to such judgment, (b) such courts did not contravene the rules
of natural justice of Bermuda, (c)
42
<PAGE>
such judgment was not obtained by fraud, (d) the enforcement of the
judgment would not be contrary to the public policy of Bermuda, (e) no
new admissible evidence relevant to the action is submitted prior to
the rendering of the judgment by the courts of Bermuda and (f) the due
compliance with the correct procedures under the laws of Bermuda.
Very truly yours,
By:
43
<PAGE>
EXHIBIT D
[Date of Loan]
[CT Corporation System
208 South LaSalle
Suite 814
Chicago, IL 60604
U.S.A.]
Ladies and Gentlemen:
We refer to [the Term Loan Promissory Note, dated as of June , 1998 (the
"Agreement"), made by OVERSEAS PARTNERS (MADISON PLAZA) LLC and payable to the
- ------------
order of Bank of America National Trust & Savings Association].* **
[Overseas Partners Capital Corp.,][Overseas Partners, Ltd.] [OVERSEAS
PARTNERS (MADISON PLAZA) LLC] hereby appoints CT Corporation System, located at
208 South LaSalle, Suite 814, Chicago, Illinois 60604, as its agent for service
of process in any proceeding in the courts of Illinois in connection with the
Agreement.
The term of the appointment is for a period of one year. Enclosed please
find a check in the amount of $150 as payment of your charges for this
appointment. (OR: We have credited $150 (value date , 1998) as payment of
your charges for this appointment to your account with Chemical Bank, 277 Park
* For Overseas Partners, Ltd. and Overseas Partners Capital Corp.:
[the Guaranty, dated as of June t 1998 (the "Agreement") made by Overseas
Partners, Ltd. and Overseas Partners Capital Corp., in favor of Bank of America
National Trust & Savings Association, guaranteeing the obligations of OVERSEAS
PARTNERS (MADISON PLAZA)LLC under the Term Loan Promissory Note, dated as of
June , 1998, made by OVERSEAS PARTNERS (MADISON PLAZA) LLC and payable to the
order of Bank of America National Trust & Savings Association.)
** For Borrower:
[the Term Loan Promissory Note, dated as of June 1 1998, made by OVERSEAS
PARTNERS (MADISON PLAZA) LLC and payable to the order of Bank of America
National Trust & Savings Association.]
44
<PAGE>
Avenue, New York, New York 10017, ABA No. 021 000 128, A/C No. 613 210 476,
reference: Overseas Partners.]
Also enclosed are the excerpted pages from the Agreement you require.*
Any process made upon you should be sent to us at:
[Overseas Partners, Ltd.][Overseas Partners Capital Corp.]
[OVERSEAS PARTNERS (MADISON PLAZA) LLC]
**[c/o Overseas Partners Capital Corp.]
115 Perimeter Center
Suite 940
Atlanta, Georgia 30346
Attention: Corporate Secretary
Very truly yours,
[OVERSEAS PARTNERS, LTD.]
[OVERSEAS PARTNERS CAPITAL CORP.]
[OVERSEAS PARTNERS (MADISON PLAZA)LLC]
By:
Title:
* Mayer, Brown & Platt will attach these pages to the letter when the letter
is returned to it.
** For use with Overseas Partners Ltd.
45
<PAGE>
GUARANTY
GUARANTY, dated as of July 6, 1998 (as amended and modified from time to
----
time, this "Guaranty"), is made by OVERSEAS PARTNERS, LTD., a Bermuda
-----------
corporation ('Overseas Ltd.') and OVERSEAS PARTNERS CAPITAL CORP., a Delaware
Corporation ("Overseas Corp") (individually a "Guarantor" and collectively the
-----------
"Guarantors") , in favor of BANK OF AMERICA NATIONAL TRUST & SAVINGS ASSOCIATION
(the "Bank") .
-------
WHEREAS, OVERSEAS PARTNERS (MADISON PLAZA) LLC, an Illinois limited
liability Company (the "Borrower"), is the maker of the Term Loan Promissory
-----------
Note, dated of even date herewith (the "Note"), in favor of the Bank;
WHEREAS, the Bank has required that each Guarantor execute and deliver this
Guaranty as a condition precedent to the making of the Loan (such capitalized
terms and all other capitalized terms not otherwise defined herein shall have
the meanings provided for in the Note) under the Note;
NOW, THEREFORE, in consideration of the premises and in order to induce the
Bank to make the Loan under the Note, the Guarantors hereby agree as follows:
SECTION 1. Guaranty. Each Guarantor hereby jointly and severally,
--------
unconditionally guarantees the punctual payment when due, whether at stated
maturity, by acceleration or otherwise, of all obligations of the Borrower now
or hereafter existing under the Note, whether for principal, interest,
environmental matters, extension fees, expenses or otherwise (such obligations
being collectively the "Obligations") , and agrees to pay any and all expenses
--------------
(including reasonable attorney's fees and expenses) actually incurred by the
Bank in enforcing any rights under this Guaranty. Attorney's fees shall include
the allocated costs for services of in-house counsel calculated on the basis of
the Bank's direct payroll costs for attorneys actually performing services in
connection with the enforcement of any rights under this Guaranty.
SECTION 2. Guaranty Absolute. Each Guarantor guarantees that the
-----------------
Obligations will be paid strictly in accordance with the term of the Note,
regardless of any law, regulation or order now or hereafter in effect in any
jurisdiction affecting any of such terms or the rights of the Bank with respect
thereto. The liability of each Guarantor under this Guaranty shall be absolute
and unconditional irrespective of:
<PAGE>
(a) any lack of validity or enforceability of the Note;
(b) any change in the time, manner or place of payment of, or in any other
term of, all or any of the Obligations or obligations of the Borrower now or
hereafter existing under the Note, whether for principal, interest, expenses or
otherwise (collectively, the "Note Obligations") , or any other amendment or
-------------
waiver of or any-consent to departure from the Note;
(c) any exchange, release or non-perfection of any collateral, or any
release or amendment or waiver of or consent to departure from any other
guaranty, for all or any of the Obligations or the Note Obligations; or
(d) any other circumstance which might otherwise constitute a defense
available to, or a discharge of, the Borrower or any other guarantor.
This Guaranty shall continue to be effective or be reinstated, as the case
may be, if at any time any payment of any of the obligations or the Note
Obligations is rescinded or must otherwise be returned by the Bank upon the
insolvency, bankruptcy or reorganization of the Borrower or otherwise, all
as though such payment had not been made.
SECTION 3. Waiver, etc.
-----------
(a) Except as may be specifically set forth herein, each Guarantor
hereby waives promptness, diligence, notice of acceptance and any other notice
with respect to any of the Obligations, Note Obligations and this Guaranty and
any requirement that the Bank exhaust any right or take any action against the
Borrower or the other Guarantor or any other person or entity or any collateral.
(b) Anything in this Guaranty or otherwise notwithstanding, this
Guaranty is fully enforceable at the same time the Note is enforceable, and the
Bank shall not be required to exercise any remedies, or take any action against
or with respect to, the Borrower or the Note prior to the exercise of all or any
of its rights hereunder. without limiting the foregoing, at any time any of the
Note obligations have not been paid when and as due, the Guarantor shall make
payment thereon directly to the Bank. This provision is a material inducement
to the Bank making the Loan under the Note to the Borrower.
SECTION 4. Subrogation. The Guarantor will not exercise any rights
-----------
against Borrower which it may acquire by way of
2
<PAGE>
subrogation under this Guaranty, by any payment made hereunder or otherwise,
until all the obligations and Note obligations shall have been paid in full in
cash. If any amount shall be paid to the Guarantor on account of such
subrogation rights at any time when all the Obligations and Note Obligations
shall not have been paid in full in cash, such amount shall be held in trust for
the benefit of the Bank and shall forthwith be paid to the Bank to be credited
and applied upon the obligations, whether matured or unmatured, in accordance
with the terms of the Note.
SECTION 5. Payments Free and Clear of Taxes, Etc. (a) Any and all
-------------------------------------
payments made by either Guarantor hereunder shall be made free and clear of and
without deduction for any present or future income, excise, stamp or other
taxes, fees, duties, withholdings or other charges of any nature whatsoever
imposed by any taxing authority, other than franchise taxes and taxes imposed on
or measured by the Lender's net income or receipts (such non-excluded items
being called "Taxes"). If either Guarantor shall be required by law to deduct
--------
any Taxes from or in respect of any sum payable hereunder, (i) the sum payable
shall be increased as may be necessary so that after making all required
deductions (including deductions applicable to additional sums payable under
this Section) the Bank receives an amount equal to the sum it would have
received had no such deductions been made, (ii) the Guarantors shall make such
deductions and (iii) the Guarantors shall pay the full amount deducted to the
relevant taxation authority or other authority in accordance with applicable
law.
(b) In addition, each Guarantor agrees to pay any present or future stamp
or documentary taxes, or any other excise or property taxes, charges or similar
levies which arise from any payment made hereunder or from the execution,
delivery or registration of, or otherwise with respect to, this Guaranty
(hereinafter referred to as "Other Taxes").
--------------
(c) Each Guarantor will indemnify the Bank for the full amount of Taxes or
Other Taxes (including, without limitation, any Taxes or Other Taxes imposed by
any jurisdiction on amounts payable under this section) paid by the Bank and any
liability (including penalties, interest and expenses) arising therefrom or with
respect thereto, whether or not such Taxes or Other Taxes were correctly or
legally asserted;
(d) Without prejudice to the survival of any other agreement of the
Guarantors hereunder, the agreements and obligations of the Guarantors contained
in clauses (a) through (c) above shall survive the payment in full of principal
----------- ---
of and interest on the Loan and the termination of the Note.
SECTION 6. Representations and Warranties. Each Guarantor hereby
------------------------------
represents and warrants as follows:
3
<PAGE>
(a) Overseas Ltd. is a corporation duly organized, validly existing and in
good standing under the laws of Bermuda, and Overseas Corp. is a corporation
duly organized, validly existing and in good standing under the laws of Delaware
and each Guarantor is duly qualified to do business and is in good standing as a
foreign corporation in each jurisdiction where the nature of its business
requires such qualification, except where the failure to be so qualified or be
in good standing would not have a material adverse effect on such Guarantor, its
businesses, its ability to perform its obligations hereunder, or the validity or
enforceability of this Guaranty.
(b) The execution, delivery and performance of this Guaranty by each
Guarantor and each other document or instrument delivered by each Guarantor in
connection herewith are within its corporate powers, have been duly authorized
by all necessary corporate action and do not contravene
(i) its certificate of incorporation or by-laws;
(ii) any law, rule or regulation applicable to the Guarantor; or
(iii) any contractual restriction binding on or affecting such
Guarantor.
(c) No authorization, approval or other action by, and no notice to or
filing with, any governmental authority or regulatory body is required for the
due execution, delivery and performance by the Guarantors of this Guaranty.
(d) This Guaranty is the legal, valid and binding obligation of each
Guarantor enforceable against each Guarantor in accordance with its terms.
(e) The balance sheets of each Guarantor and its subsidiaries as at March
31, 1998, and the related statement of income and retained earnings and changes
in financial position for the fiscal year then ended, copies of which have been
furnished to the Bank, fairly present its financial condition as at such date
and the results of its operations for the period ended on such date, all in
accordance with generally accepted accounting principles consistently applied.
(f) Since March 31, 1998, there has been no material adverse change in
either Guarantor's consolidated financial condition, operations or prospects.
4
<PAGE>
(g) Except as may be disclosed on the balance sheets of each Guarantor,
there is no pending or threatened action or proceeding affecting either
Guarantor or any of its subsidiaries before any court, governmental agency or
arbitrator, which could, if adversely determined, reasonably be expected to have
a materially adverse effect upon the financial condition or operations of such
Guarantor and its subsidiaries, taken as a whole.
(h) Neither Guarantor nor any of its property has any immunity from
jurisdiction of any court or from any legal process (whether through service of
notice, attachment prior to judgment, attachment in aid of execution, execution
or otherwise) under the laws of Bermuda.
(i) There is no tax, levy, impost, deduction, charge or withholding imposed
by Bermuda or any political subdivision thereof either (i) on or by virtue of
the execution or delivery of this Guaranty or (ii) on any payment to be made by
the Guarantors pursuant to this Guaranty.
(j) To ensure the legality, validity, enforceability or admissibility in
evidence of this Guaranty in Bermuda, it is not necessary that this Guaranty or
any other document be filed or recorded with any court or other authority in
Bermuda.
(k) Overseas Ltd. owns, directly or indirectly, free and clear of all liens
and other encumbrances, all of the capital stock of Overseas Corp. and of
Overseas Holding Company, Inc. ("Overseas Holding") and Overseas Holding owns
--------------------
directly free and clear of all liens and other encumbrances, all of the capital
stock of OVERSEAS PARTNERS(MADISON PLAZA) , INC. ("Borrower's Member") and
---------------------
Borrower's Member owns directly free and clear of all liens and other
encumbrances, all of the membership interests of Borrower.
(1) The Guarantors will each benefit from the Bank making the Loan to the
Borrower.
SECTION 7. Affirmative Covenants. So long as the Loan or any other
---------------------
amount under the Note remains unpaid, each Guarantor will, and will cause each
of its subsidiaries (including the Borrower and Borrower's Member) to:
(a) Maintain Property. Maintain and preserve, and cause each of its
-----------------
subsidiaries-to maintain and preserve, all of its or their properties which are
used or useful in the
5
<PAGE>
conduct of its or their business in good working order and condition, ordinary
wear and tear excepted.
(b) Business Activities. Continue to engage in the same general type of
-------------------
business as now conducted by it and its subsidiaries and preserve, renew and
keep in full force and effect, and cause each such subsidiary to preserve, renew
and keep in full force and effect, its and their respective corporate or
partnership existence in good standing and its and their rights, privileges and
franchises which are necessary or desirable in the normal conduct of its and
their businesses.
(c) Books and Records. Keep and cause its subsidiaries to keep books and
-----------------
records reflecting all of its and their business affairs and transactions in a
manner which permits the preparation of financial statements in accordance with
generally accepted accounting principles prevailing from time to time in the
United States ("GAAP"); and permit the Bank's representatives to visit and
----------
inspect any of the properties of the Guarantor and its subsidiaries, to examine
and make abstracts from any of the books and records of the Guarantor and such
subsidiaries and to discuss the affairs, transactions, finances and accounts of
the Guarantor and its subsidiaries with any of their respective officers,
directors or independent public accountants, all at such reasonable times and as
often as may reasonably be desired.
(d) Compliance with Laws, Etc. Comply, and cause its subsidiaries to
--------------------
comply, in all material respects with all applicable laws, rules, regulations
and orders, such compliance to include paying before the same become delinquent,
all taxes, assessments and governmental charges imposed upon such Guarantor and
its subsidiaries or any of their properties, except to the extent contested in
good faith and by appropriate proceedings promptly instituted and diligently
pursued.
(e) Members' Equity of Overseas Ltd.; In the case of Overseas Ltd.,
maintain a minimum members equity of not less than $1,000,000,000.00 as reported
in Overseas Ltd.'s consolidated GAAP financial statements. "Minimum members'
equity" means the gross book value of Overseas Ltd.'s assets (excluding
goodwill, patents, trademarks, trade names, organization expense, treasury
stock, unamortized debt discount and expense, capitalized or deferred research
and development costs, deferred marketing expenses, deferred receivables, and
other like intangibles, and monies due from affiliates, officers, directors,
employees, shareholders, members or managers of Borrower) less total liabilities
6
<PAGE>
including but not limited to accrued and deferred income taxes and any reserves
against assets.
(f) Total Liabilities of Overseas Ltd. In the case of Overseas Ltd.,
-----------------------------
maintain total liabilities on a consolidated basis which are not in excess of
(and do not at any time exceed) $2,000,000,000.00. Total liabilities shall mean
all liabilities as reported in Overseas Ltd.'s consolidated GAAP financial
statements including the sum of all current liabilities plus all long term
liabilities, letter of credit liabilities, capitalized lease liabilities and
minority interests.
(g) Reporting Requirements. Each Guarantor will, and will cause its
----------------------
subsidiaries, to furnish to the Bank:
(i) as soon as available and in any event within 45 days after the
end of each of each Guarantor's first three quarters of each of its fiscal
years, consolidated balance sheets of each Guarantor and its consolidated
subsidiaries as of the end of such quarter and consolidated statements of income
and retained earnings and changes in financial position of each Guarantor and
its consolidated subsidiaries for the period commencing at the end of the
previous fiscal year and ending with the end of such quarter, certified by an
authorized officer of such Guarantor as having been prepared in accordance with
GAAP consistent with those applied in the preparation of the financial
statements referred to in clause (e) of Section 6;
--- ----------
(ii) as soon as available and in any event within 120 days after the
end of each of each Guarantor's fiscal years, a copy of the annual report for
such year for such Guarantor and its subsidiaries, containing consolidated
financial statements for such year audited and certified in a manner reasonably
acceptable to the Bank by Deloitte & Touche or other independent public
accountants reasonably acceptable to the Bank.
(iii) as soon as possible and in any event within five days after the
occurrence of any Event of Default and each event which, with the giving of
notice or lapse of time, or both, would constitute an Event of Default (a
"Default"), a statement of an authorized officer of each Guarantor setting forth
- ----------
details of such Event of Default or Default and the action which has been taken
or is proposed to be taken with respect thereto;
7
<PAGE>
(iv) promptly after the sending or filing thereof, copies of all
reports which each Guarantor or any of its subsidiaries sends to any of its
security holders, and copies of all reports and registration statements which
each Guarantor or any of its subsidiaries files with the Securities and Exchange
Commission or any national securities exchange;
(v) as soon as available and in any event within 45 days after the
end of Overseas Ltd.'s fiscal quarter, a certificate executed by an authorized
officer of overseas Ltd., showing (in reasonable detail and with appropriate
calculations and computations in all respects reasonably satisfactory to the
Bank) compliance with the financial covenants set forth in clauses- (e) and (f)
------------- ---
of this Section;
(vi) promptly upon the execution of a commitment letter or mandate
letter relating to the financing referred to in clause (b) of Section 1.1 of the
---------- -------
Note, notice thereof to the Bank;
(vii) prompt notice of any litigation or other circumstances, event
or occurrence affecting any Loan Party or Madison Plaza that may reasonably be
expected to result in a material adverse change in (i) the financial condition
of any Loan Party, (ii) any Loan Party's ability to timely perform any of its
obligations under the Note or Guaranty, (iii) the physical condition or
operation of the Madison Plaza.
(viii) such other information respecting the condition or operations,
financial or otherwise, of the Guarantors or any of their subsidiaries as the
Bank may from time to time reasonably request.
SECTION 8. Negative Covenants. So long as the Loan or any other amount
------------------
remains unpaid under the Note, each Guarantor agrees as follows:
(a) Consolidation, Merger, etc. Each Guarantor will not, and will not
----------------------
permit any of its subsidiaries to, liquidate or dissolve, consolidate with, or
merge into or with, any other corporation, or purchase or otherwise acquire all
or substantially all of the assets of any Person (or of any division thereof);
provided, however, that notwithstanding the foregoing,
- -----------------
(i) any such subsidiary of a Guarantor may liquidate or dissolve
voluntarily into, and may merge
8
<PAGE>
with and into, such Guarantor or any other direct or indirect subsidiary of such
Guarantor, and the assets or stock of any such subsidiary may be purchased or
otherwise acquired by such Guarantor or any other such direct or indirect
subsidiary;
(ii) so long as no Default has occurred and is continuing or would
occur after giving effect thereto, such Guarantor or any of its direct or
indirect subsidiaries may purchase all or substantially all of the assets or
stock of any person; and
(iii) any such subsidiary may liquidate or dissolve voluntarily into,
and may merge with and into, any corporation which is not a subsidiary of such
Guarantor, provided that, (a) the surviving corporation shall be a direct or
--------
indirect subsidiary of such Guarantor, (b) such Guarantor or its direct or
indirect subsidiary shall own at least the same percentage of the outstanding
voting stock interests of the surviving corporation as such Guarantor or its
direct or indirect subsidiary owned of such subsidiary prior to such merger,
liquidation or consolidation and (c) after giving effect thereto, no Default
would occur or be continuing.
(b) Asset Dispositions, etc. Each Guarantor will not, and will not permit
--------------------------
any of its subsidiaries to, sell, transfer, lease, contribute or otherwise
convey, or grant options, warrants or other rights with respect to, all or
substantially all of its assets to any person or entity.
SECTION 9. Judgment. (a) If, for the purposes of obtaining judgment in
--------
any court, it is necessary to convert a sum due hereunder from another currency
into United States dollars, the parties hereto agree, to the fullest extent
permitted by law, that the rate of exchange used shall be that at which in
accordance with normal banking procedures the Bank could purchase United States
dollars with such other currency on the Business Day preceding that on which
final judgment is given.
(b) The obligation of a Guarantor in respect of any sum due from it to the
Bank hereunder shall, notwithstanding any judgment in a currency other than
United States dollars, be discharged only to the extent that on the Business Day
following receipt by the Bank of any sum adjudged to be so due in such other
currency the Bank may in accordance with normal banking procedures purchase
United States dollars with such other currency; if the United States dollars so
purchased are less than the sum originally due to the Bank in the United States
dollars, the
9
<PAGE>
Guarantors agree, as a separate obligation and notwithstanding any such
judgment, to indemnify the Bank against such loss.
SECTION 10. Indemnification and Survival. Each Guarantor shall indemnify,
----------------------------
exonerate and hold the Bank and each of its officers, directors, employees and
agents (collectively, the "Indemnified Parties") free and harmless from and
------------
against any and all actions, causes of action, suits, losses, costs,
liabilities, damages and expenses incurred in connection with the Note or this
Guaranty (irrespective of whether any such Indemnified Party is a party to the
action for which indemnification hereunder is sought), including reasonable
attorneys' fees and disbursements actually incurred (collectively, the
"Indemnified Liabilities"), except for (a)any such Indemnified Liabilities
- --------------------------
arising for the account of a particular Indemnified Party by reason of the
relevant Indemnified Party's gross negligence or wilful misconduct and (b) costs
and expenses incurred on or prior to the date hereof by the Bank in connection
with the negotiation, preparation and delivery of the Note and this Guaranty,
and (c) any Indemnified Liabilities resulting from litigation between any Loan
Party and Bank in which such Loan Party is the prevailing party. If and to the
extent that the foregoing undertaking may be unenforceable for any reason, each
Guarantor hereby agrees to make the maximum contribution to the payment and
satisfaction of each of the Indemnified Liabilities which is permissible under
applicable law. Each Guarantorts obligations under this Section shall survive
any termination of this Guaranty.
SECTION 11. Amendments, etc. No amendment or waiver of any provision of
---------------
this Guaranty nor consent to any departure by any Guarantor therefrom shall in
any event be effective unless the same shall be in writing and signed by the
Bank, and then such waiver or consent shall be effective only in the specific
instance and for the specific purpose for which given.
SECTION 12. Addresses for Notices. All notices and other communications
-------------------------
provided for hereunder shall be in writing and, if to a Guarantor, mailed or
telecopied or delivered at the address specified below, or if to the Bank,
mailed or telecopied or delivered to it, addressed to it at the address of the
Bank specified in the Note, or as to each party, at such other address AS shall
be designated by such party in a written notice to the other party:
Address of the Guarantors:
Overseas Partners Ltd.
Mintflower Place
P.O. Box HM 1581
8 Par-la-Ville Road
Hamilton HM 6X Bermuda
10
<PAGE>
Attention: Corporate Secretary
Telecopy: 441-292-9142
with a copy to:
Overseas Partners Capital Corp.
115 Perimeter Center
Suite 940
Atlanta, Georgia 30346
Attention: Corporate Secretary
Telecopy: 404-913-6756
With a copy to:
Overseas Partners Ltd.
Mintflower Place
P.O. Box HM 1581
8 Par-la-Ville Road
Hamilton HM 6X Bermuda
Attention: Thomas E. Butler
Telecopy: 441-292-9142
With a copy to:
Troutman Sanders LLP
600 Peachtree Street, N.E.
Suite 5200
Atlanta, GA 30308-2211
Attention: James W. Addison
Telecopy: 404-885-3995
All notices delivered by (i) the mails shall be deemed received four days
after deposited in the mails, postage prepaid, (ii) hand delivery shall be
deemed received when hand delivered, (iii) United Parcel Service's or other next
day air express service, on the second day after deposit, and (iv) telecopier
shall be deemed received when the sender receives electronic confirmation of
receipt.
SECTION 13. No Waiver; Remedies. No failure on the part of the Bank to
-------------------
exercise, and no delay in exercising, any right hereunder shall operate as a
waiver thereof; nor shall any single or partial exercise of any right hereunder
preclude any other or further exercise thereof or the exercise of any other
right. The remedies herein provided are cumulative and not exclusive of any
remedies provided by law.
SECTION 14. No Right of Set-off. Bank agrees that it shall have no right
-------------------
of setoff against any-amounts Bank holds on deposit to satisfy any indebtedness
of either Guarantor to the Bank with
11
<PAGE>
respect to the Loan. Bank hereby waives with respect to the Loan all rights of
setoff or recoupment which, under applicable law or other agreement, Bank may
have with respect to all accounts or monies of either Guarantor.
SECTION 15. Continuing Guaranty; Transfer of Note; Joint and Several. This
--------------------------------------------------------
Guaranty is continuing guaranty and shall (i) remain in full force and effect
until payment in full of the obligations and all other amounts payable under
this Guaranty, (ii) be binding upon each Guarantor, its successors and assigns,
and (iii) inure to the benefit of and be enforceable by the Bank and its
successors, transferees and assigns. All obligations under this Guaranty are
joint and several to each of the Guarantors.
SECTION 16. Governing Law. THIS GUARANTY SHALL BE GOVERNED BY, AND
---------------
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF ILLINOIS.
SECTION 17. Forum Selection and Consent to Jurisdiction. EACH GUARANTOR
-------------------------------------------
HEREBY IRREVOCABLY AND UNCONDITIONALLY:
(a) SUBMITS FOR ITSELF AND ITS PROPERTY IN ANY LEGAL ACTION OR PROCEEDING
RELATING TO THIS GUARANTY OR FOR RECOGNITION AND ENFORCEMENT OF ANY JUDGMENT IN
RESPECT THEREOF, TO THE NON-EXCLUSIVE GENERAL JURISDICTION OF THE COURTS OF THE
STATE OF ILLINOIS, THE COURTS OF THE UNITED STATES OF AMERICA FOR THE NORTHERN
DISTRICT OF ILLINOIS, AND APPELLATE COURTS FROM ANY THEREOF;
(b) AGREES THAT ANY SUCH ACTION OR PROCEEDING MAY BE BROUGHT IN SUCH COURTS
AND WAIVES ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE VENUE OF ANY
SUCH ACTION OR PROCEEDING IN ANY SUCH COURT OR THAT SUCH ACTION OR PROCEEDING
WAS BROUGHT IN AN INCONVENIENT COURT AND AGREES NOT TO PLEAD OR CLAIM THE SAME;
(c) AGREES THAT SERVICE OF PROCESS IN ANY SUCH ACTION OR PROCEEDING MAY BE
EFFECTED BY MAILING A COPY THEREOF BY REGISTERED OR CERTIFIED MAIL (OR ANY
SUBSTANTIALLY SIMILAR FORM OF MAIL), POSTAGE PREPAID TO IT AT ITS ADDRESS SET
FORTH IN SECTION 12 OR AT SUCH OTHER ADDRESS OF WHICH THE BANK SHALL HAVE BEEN
NOTIFIED PURSUANT THERETO; AND
(d) AGREES THAT NOTHING HEREIN SHALL AFFECT THE RIGHT TO EFFECT
SERVICE OF PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR SHALL LIMIT THE RIGHT
TO SUE IN ANY OTHER JURISDICTION.
Each Guarantor hereby irrevocably appoints CT Corporation Systems (the "Process
--------
Agent") , with an office on the date hereof at 208
- -------
12
<PAGE>
S. LaSalle Street, Suite 814, Chicago, Illinois, 60604 as its agent to receive
on behalf of such Guarantor and its property service of copies of the summons
and complaint and any other process which may be served in any such action or
proceeding. Such service may be made by mailing or delivering a copy of such
process to such Guarantor in care of the Process Agent at the Process Agent's
above address, and each Guarantor hereby irrevocably authorizes and directs the
Process Agent to accept such service on its behalf. Each Guarantor agrees that
a final judgment in any such action or proceeding shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment or in any other manner
provided by law. Nothing in this Section shall affect the right of the Bank to
serve legal process in any other manner permitted by law or affect the right of
the Bank to bring any action or proceeding against the Guarantors or their
property in the courts of any other jurisdictions.
SECTION 18. Waiver of Jury Trial. EACH GUARANTOR AND THE BANK HEREBY
-------------
KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE ANY RIGHTS IT MAY HAVE TO A TRIAL
BY JURY IN RESPECT OF ANY LITIGATION BASED HEREON OR ARISING OUT OF, OR IN
CONNECTION WITH, THIS GUARANTY, OR ANY COURSE OF CONDUCT, COURSE OF DEALING,
STATEMENTS (WHETHER ORAL OR WRITTEN) OR ACTIONS WITH RESPECT THERETO. THIS
PROVISION IS A MATERIAL INDUCEMENT FOR THE BANK ENTERING INTO THIS GUARANTY,
SECTION 19. Counterparts. This Guaranty may be executed in separate
------------
counterparts. Each counterpart when so executed shall be deemed to be an
original. All counterparts taken together shall constitute one complete
agreement.
13
<PAGE>
IN WITNESS WHEREOF, each Guarantor has caused this Guaranty to be duly
executed and delivered by its officer thereunto duly authorized as of the date
first above written.
OVERSEAS PARTNERS, LTD.
By: /s/ Bruce M. Barone
Title: President & CEO
Signed: Hamilton, Bermuda 6/30/98
OVERSEAS PARTNERS CAPITAL CORP.
By: /s/ Bruce M. Barone
Title: President
14
<PAGE>
EXHIBIT 10(tttt)
================================================================================
AIRCRAFT PURCHASE AGREEMENT
dated as of July 6, 1998
between
Overseas Partners Capital Corp.
Seller
and
UNITED PARCEL SERVICE CO.
Buyer
Five B757-24APF Aircraft
Including
Ten P&W 2040 Engines
===============================================================================
<PAGE>
AIRCRAFT PURCHASE AGREEMENT
---------------------------
THIS AIRCRAFT PURCHASE AGREEMENT ("Agreement") is made and entered into as
of the 6th day of July, 1998, by and between UNITED PARCEL SERVICE CO., a
Delaware corporation ("Buyer") with a place of business at 1400 N. Hurstbourne
Parkway, Louisville, Kentucky 40223, and Overseas Partners Capital Corp. (as
successor to Overseas Partners Capital Corp.), a Delaware corporation ("Seller")
having its place of business at 115 Perimeter Center Place, Atlanta, Georgia
30346.
RECITALS
--------
WHEREAS, Seller owns Five (5) used Boeing Model 757-24APF aircraft
including Ten (10) engines, as more particularly described herein and on Exhibit
A attached hereto; and,
WHEREAS, Seller wishes to sell such aircraft and engines to Buyer pursuant
to the terms and subject to the conditions set forth in this Agreement; and,
WHEREAS, Buyer desires to purchase such aircraft and engines pursuant to
the terms and subject to the conditions set forth in this Agreement.
FOR AND IN CONSIDERATION of the mutual covenants contained in this
Agreement and other good and valuable consideration, Buyer and Seller (the
"Parties") agree as follows:
ARTICLE 1
DEFINITIONS
-----------
PRIMARY DEFINITIONS. In addition to words and terms elsewhere defined in
--------------------
this Agreement, the following words and terms shall have the meanings set forth
below:
AIRCRAFT. Five (5) used Boeing Model 757-24APF airframes bearing the
---------
Manufacturer's Serial Numbers and U.S. Registration Numbers as more particularly
set forth on Exhibit A including engines (limited however to the engines
identified in Attachment 1 to Exhibit A whether installed on the Aircraft,
installed on other aircraft, held as spare engines or undergoing maintenance and
repair), all parts, components, equipment and accessories installed or affixed
in or on the Aircraft as of July 1, 1998, and used in connection with the
Aircraft as more particularly described in Exhibit A (individually and
collectively referred to herein as "Aircraft").
AIRCRAFT ACCEPTANCE RECEIPT. An acceptance receipt, in the form of Exhibit
----------------------------
B attached to this Agreement, executed by Buyer and delivered to Seller
concurrently with the Delivery of each Aircraft.
1
<PAGE>
AIRFRAME. An Aircraft, excluding Engines.
---------
BUSINESS DAY. Any day other than a Saturday, Sunday or other day on which
-------------
banking institutions in New York, New York or Louisville, Kentucky, are
authorized or required by law to be closed.
DELIVERY. Delivery of an Airframe or Engine shall occur when the following
---------
concurrent events performed in accordance with this Agreement shall have
occurred: (a) tender of that Airframe or Engine by Seller to Buyer, (b)
acceptance by Buyer of that Airframe or Engine, as evidenced by Buyer's
execution of the Airframe Acceptance Receipt, or Engine Acceptance Receipt, (c)
sale by transfer of title of that Airframe or Engine by Seller to Buyer, and
(d) payment by Buyer of the Purchase Price for that Airframe or Engine.
DELIVERY DATE. The date the Airframe or Engine is delivered as set forth
--------------
in Section 3.02 and Exhibit A.
ENGINE ACCEPTANCE RECEIPT. An acceptance receipt, in the form of Exhibit B1
--------------------------
attached to this Agreement, executed by Buyer and delivered to Seller
concurrently with the Delivery of each Engine.
ENGINES. Pratt & Whitney 2040 engines, bearing manufacturer serial
--------
numbers: P726505, P726508, P726511, P726515, P726518, P726501, P726509,
P726512, P727992, and P726519, whether said engines are installed on the
Aircraft, installed on other aircraft, held as spare engine(s), or undergoing
maintenance and repair together with all appliances, parts, appurtenances,
accessories or other equipment or property installed on or attached to the
engines as more particularly described in the Attachment 1 to Exhibit A
(individually and collectively referred to herein as "Engines").
FAA. The United States Federal Aviation Administration.
----
FAA BILL OF SALE. A Federal Aviation Administration Bill of Sale (AC Form
-----------------
8050-2) conveying title to the Aircraft to Buyer, in the form of Exhibit C.
GUARANTOR. United Parcel Service of America, Inc.
----------
INDENTURE. The November 6, 1990 Amended and Restated Trust Indenture and
----------
Security Agreement among OPL Funding Corp. Overseas Partners Credit, Inc., and
Trustee.
LEASE. The November 6, 1990 Amended and Restated Aircraft Lease Agreement
------
among Seller, Buyer, and Guarantor, as supplemented and amended.
PURCHASE PRICE. The sum to be paid by Buyer to Seller for each Airframe
---------------
and Engine, as more particularly set forth on Exhibit A.
RENT ASSIGNMENT. The November 6, 1990 Instrument of Conveyance of Basic
----------------
Tolls.
2
<PAGE>
SECURITY AGREEMENT. The November 6, 1990 Security Agreement between Seller
-------------------
and OPL Funding Corp.
TRUSTEE. U.S. Bank Trust National Association (successor to Continental
--------
Bank, National Association).
WARRANTY BILL OF SALE. A warranty (as to title only) bill of sale,
----------------------
conveying title to an Airframe or Engine to Buyer, in the form of Exhibit D or
Exhibit D1 respectively.
ARTICLE 2
PURCHASE OF AIRCRAFT AND ENGINES
--------------------------------
Section 2.01. Purchase of Aircraft. Seller agrees to sell to Buyer, and
------------- ---------------------
Buyer agrees to purchase from Seller, the Aircraft pursuant to the terms and
subject to the conditions of this Agreement.
Section 2.02. Purchase Price. Buyer shall pay Seller the Purchase Price
------------- ---------------
upon Delivery of the Aircraft in accordance with Article 2.04.
Section 2.03. Payment of Purchase Price. All monies payable by Buyer
------------- --------------------------
under this Agreement shall be paid in accordance with Article 7, as follows:
(a) Upon Delivery of each Aircraft, Buyer shall pay to Seller, or its
designee, the Purchase Price for that Aircraft.
(b) If an Aircraft (one Airframe and two Engines) is sold other than
simultaneously, the following procedure shall apply:
1) The Engines shall be sold no earlier than the moment that the
Airframe is sold.
2) When the Airframe is sold, the Purchase Price for the
Airframe and each of the two related Engines shall be paid to
Seller or its designee.
3) If the Airframe is sold without the two related Engines being
simultaneously sold, Seller must sell and Buyer must buy each
of the two related Engines within 30 days after the Airframe
sale date.
4) As to the Purchase Price for each Engine not sold at the same
time as the related Airframe: Seller or its designee shall
hold such Purchase Price as collateral for Buyer's obligation
to buy that Engine. Those collateral funds may be commingled,
and shall not accrue interest or other earnings for Buyer's
account.
3
<PAGE>
5) The term of the Lease for each Engine not sold at the same
time as the related Airframe shall be extended until the
Engine sale date, except that no Basic Tolls under the Lease
shall accrue for any Engine after the collateral funds
referred to in clause (4) of this Section 2.03(b) have been
paid.
6) The Purchase Price for the Airframe and each Engine shall be
applied only when such item is actually sold.
ARTICLE 3
AIRCRAFT DELIVERY, TITLE, RISK OF LOSS
--------------------------------------
Section 3.01. Delivery of Aircraft and Engines. Seller shall deliver
------------- ---------------------------------
the Aircraft including Engines to Buyer pursuant to the procedure set forth in
this Article 3.
Section 3.02. Place of Acceptance and Delivery. Acceptance and
------------- ---------------------------------
Delivery of each Airframe, and Engine shall be at such location and on such date
as more particularly set forth on Exhibit A (or such location and date as are
mutually acceptable to Seller and Buyer).
Section 3.03. Airframe Delivery Procedure. At the time of
------------- ----------------------------
Delivery of each Airframe:
(a) Buyer shall pay Seller the Purchase Price therefor;
(b) Buyer shall execute and deliver to Seller the Airframe Acceptance
Receipt therefor;
(c) Seller shall deliver to Buyer the Warranty Bill of Sale therefor;
(d) Buyer shall deliver to Seller certificates of insurance,
evidencing the coverages required under Article 10; and
(e) Seller shall deliver the FAA Bill of Sale executed by Seller to
Buyer in Oklahoma City, Oklahoma, and Buyer shall cause the same
to be filed with the FAA Aircraft Registry, in Oklahoma City,
Oklahoma, and Buyer shall cause the white and green copies of an
Aircraft Registration Application on AC Form 8050-1 describing
the Aircraft and naming Buyer as applicant to be filed with the
FAA Aircraft Registry in Oklahoma City, Oklahoma.
Section 3.04. Engine Delivery Procedure. At the time of
------------- --------------------------
Delivery of each Engine:
(a) Buyer shall pay Seller the Purchase Price therefore;
4
<PAGE>
(b) Buyer shall execute and deliver to Seller the Engine Acceptance
Receipt therefor; and
(c) Seller shall deliver to Buyer the Warranty Bill of Sale.
Section 3.05. Title and Risk of Loss. Concurrently with the Delivery
------------- -----------------------
of each Airframe or Engine by Seller to Buyer, title to, and risk of loss of,
damage to or destruction of such Airframe or Engine shall pass from Seller to
Buyer. The preceding sentence is without prejudice to Buyer's responsibilities
under the Lease.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES
------------------------------
Section 4.01. Seller's Representations and Warranties. Seller hereby
------------- ----------------------------------------
represents and warrants to Buyer that upon Delivery of each Airframe and Engine:
(a) Seller owns legal title to that Airframe or Engine, free and
clear of any and all security interests, liens, claims, charges
or encumbrances of the type that Section 11.1 of the Lease would
not require Buyer to remove upon redelivery of the Aircraft;
(b) Seller shall have full power and lawful authority to convey such
ownership interest in that Airframe or Engine to Buyer, and;
(i) Subject to satisfaction of all conditions precedent to its
respective obligations under this Agreement, Seller has
full corporate power, authority and legal right to execute,
deliver and perform this Agreement;
(ii) Seller has duly authorized, executed and delivered this
Agreement and such Agreement constitutes the legal, valid
and binding obligation of Seller enforceable against Seller
in accordance with its respective terms, and;
(iii) The execution, delivery and performance by Seller of this
Agreement does not require any further approval or consent
of any other person or entity and does not violate the
certificate of incorporation or the by-laws of Seller or
any applicable law or governmental rule or regulation, and
does not violate any provision or constitute a default
under any indenture, mortgage, bank loan or credit
agreement, note or bond purchase agreement, long-term
lease, license or other agreement or instrument, known to
such counsel, to which Seller is a party or by which it is
bound or any order or judgment applicable to Seller.
5
<PAGE>
(c) Buyer shall have received all Seller's legal and equitable title
to:
(i) each Airframe upon filing with the FAA, the related FAA
Bill of Sale and delivery of the related Warranty Bill of
Sale to Buyer, and
(ii) each Engine upon execution and delivery of the related
Warranty Bill of Sale.
Section 4.02. Limitation of Warranty. THE REPRESENTATIONS AND
------------- -----------------------
WARRANTIES OF SELLER SET FORTH IN SECTION 4.01 AND OF OTHERS ASSIGNED IN SECTION
6.01 ARE EXPRESSLY IN LIEU OF, AND SELLER SHALL NOT BE DEEMED TO HAVE MADE, AND
BUYER DISCLAIMS, ANY OTHER REPRESENTATIONS, WARRANTIES AND GUARANTIES OF ANY
KIND WHATSOEVER, EXPRESS OR IMPLIED, CONCERNING THE AIRCRAFT OR ENGINES AND ANY
PART OR COMPONENT, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OF
MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE. WITHOUT LIMITATION OF
THE FOREOING, IT IS EXPRESSLY AGREED THAT THE AIRCRAFT AND ENGINES SHALL BE SOLD
HEREUNDER ON A COMPLETELY AS IS AND WHERE IS BASIS WITH ALL DEFECTS AND FAULTS,
----- --------
WHETHER LATENT OR PATENT, WHETHER KNOWN OR UNKNOWN. SELLER IS NOT A
MANUFACTURER OR A DEALER IN AIRCRAFT OR ENGINES AND BUYER ACKNOWLEDGES AND
CONFIRMS THE AIRCRAFT AND ENGINES ARE OF A MAKE, SIZE, DESIGN AND CAPACITY
DESIRED BY BUYER AND THE AIRCRAFT IS A USED AIRCRAFT AND ENGINES ARE USED
ENGINES AND BUYER CONFIRMS THAT IT HAS NOT, IN ENTERING INTO THIS AGREEMENT,
RELIED ON ANY WARRANTY OR REPRESENTATION BY SELLER, EXPRESS OR IMPLIED, EXCEPT
AS SET FORTH IN THIS ARTICLE 4, WHETHER ARISING BY APPLICABLE LAW OR OTHERWISE
IN REGARD TO THE AIRCRAFT AND ENGINES OR ANY PART THEREOF, AND THE BENEFIT OF
ANY SUCH WARRANTY OR REPRESENTATION BY SELLER IS HEREBY IRREVOCABLY AND
UNCONDITIONALLY WAIVED BY BUYER. BUYER WAIVES ANY AND ALL RIGHTS AND REMEDIES
IT MAY HAVE AGAINST SELLER RELATING TO ANY OTHER REPRESENTATIONS AND WARRANTIES
MADE BY SELLER, WHETHER THE REMEDIES ARISE BY LAW OR OTHERWISE, INCLUDING BUT
NOT LIMITED TO, DAMAGES FOR LOSS OF USE, REVENUE OR PROFIT OR OTHER SPECIAL,
INCIDENTAL OR CONSEQUENTIAL DAMAGES. NO AGREEMENT ALTERING OR EXTENDING
SELLER'S LIABILITY FOR REPRESENTATIONS AND WARRANTIES SHALL BE BINDING UPON
SELLER UNLESS IN WRITING AND EXECUTED BY SELLER'S AND BUYER'S AUTHORIZED
OFFICERS.
Section 4.03. Buyer's Representations. Buyer hereby represents
------------- ------------------------
and warrants to Seller that:
(a) Buyer is duly authorized to execute and deliver this Agreement,
and;
6
<PAGE>
(b) This Agreement constitutes the legal, valid and binding
obligation of Buyer enforceable against Buyer in accordance with
its terms, and;
(c) Buyer shall promptly cause Seller's corporate identification and
placards identifying Seller as the Owner/Lessor of the Aircraft
and Engines to be permanently removed from the Aircraft and
Engines, and;
(d) Subject to satisfaction of all conditions precedent to its
obligations under this Agreement, Buyer has full corporate power,
authority and legal right to execute, deliver and perform this
Agreement, and;
(e) Buyer has duly authorized, executed and delivered this Agreement
and such Agreement constitutes the legal, valid and binding
obligation of Buyer enforceable against Buyer in accordance with
its respective terms, and;
(f) The execution, delivery and performance by Buyer of this
Agreement does not require any further approval or consent of any
other person or entity and does not violate the certificate of
incorporation or the by-laws of Buyer or any applicable law or
governmental rule or regulation, and does not violate any
provision or constitute a default under any indenture, mortgage,
bank loan or credit agreement, note or bond purchase agreement,
long-term lease, license or other agreement or instrument, known
to such counsel, to which Buyer is a party or by which it is
bound or any order or judgment applicable to Buyer.
ARTICLE 5
DOCUMENTATION
-------------
Section 5.01. Documentation. Buyer, as lessee of the Aircraft and
------------- --------------
Engines, acknowledges possession of all documentation and records relative to
the Aircraft and Engines required by the FAA ("Documentation"). Seller agrees
that all title, rights and interest to the Documentation for each Airframe or
Engine shall pass to Buyer at the time of its Delivery.
ARTICLE 6
ASSIGNMENT OF WARRANTIES, SERVICE LIFE POLICIES
-----------------------------------------------
AND PATENT INDEMNITIES
----------------------
Section 6.01. Assignment of Warranties. Seller hereby assigns to
------------- -------------------------
Buyer, effective upon Delivery of each Airframe or Engine, Seller's interests in
any and all existing assignable warranties, service life policies and patent
indemnities of manufacturers and maintenance and overhaul providers relating to
that Airframe or Engine. Upon the reasonable request by Buyer, and at Buyer's
sole cost and expense, Seller shall give notice to any such manufacturers and
7
<PAGE>
maintenance and overhaul providers of the assignment of such warranties, service
life policies and patent indemnities to Buyer.
ARTICLE 7
PAYMENT, TAXES
--------------
Section 7.01. Method of Payment. Except as otherwise provided in
------------- ------------------
this Agreement, all payments to be made by Buyer pursuant to this Agreement
shall be made by wire transfer in immediately available United States funds,
such payments to be deposited on the dates such payments are due, to the account
of Seller at Overseas Partners Capital Corp., ABA # 061000227, BBK First Union
National Bank, BNF OPCC Master Account, Acct. # 2080000580001, and to the
account of Trustee at ABA # 091000022, BBK U.S. Bank N.A., BNF U.S. Bank Trust /
AC-180121167365, OBI Illinois CT / AC-47300121, OPL / AC-77231664.
Section 7.02. Payment of Taxes by Buyer.
------------- --------------------------
(a) The Purchase Price of the Airframes and Engines does not include
the amount of any sales, use, withholding or excise taxes
whatsoever. Any and all taxes, excises, duties and assessments
whatsoever, (except taxes levied or assessed against Seller based
upon its net income) with respect to the sale of the Aircraft and
Engines arising out of the sale or Delivery of any Airframe or
Engine, or the ownership, possession, condition, maintenance,
use, operation or disposition of any Airframe or Engine after
Delivery, in any manner levied, assessed or imposed by any
government or subdivision or agency thereof having jurisdiction,
shall be the sole responsibility and liability of Buyer,
(b) Buyer shall promptly pay and discharge when due, unless the
validity or application thereof is being contested in good faith,
any and all taxes, excises, duties and assessments, together with
interest and penalties thereon, if any, the responsibility and
liability for which is assumed by Buyer pursuant to the
provisions of Section 7.02(a) unless any such tax, excise, duty
or assessment is levied, assessed or imposed upon Seller, in
which case Seller shall promptly give Buyer notice of such levy,
assessment or imposition, whereupon Buyer shall promptly pay and
discharge the same, but upon the written request and at the
expense of Buyer, Seller shall reasonably assist Buyer in
contesting the validity or application thereof. In the event
Seller shall receive a refund of all or any part of any such tax,
excise, duty or assessment (including a refund of interest and
penalties, if any, in connection therewith), the amount of such
refund shall promptly be remitted to Buyer by Seller, less any
reasonable and customary expenses of Seller associated with
contesting the validity or application thereof, not previously
reimbursed by Buyer to Seller.
8
<PAGE>
ARTICLE 8
EXCUSABLE DELAY, CANCELLATION,
------------------------------
TOTAL LOSS OR MATERIAL DAMAGE
-----------------------------
Section 8.01. Excusable Delay.
------------- ----------------
(a) Neither Party shall be responsible to the other Party for any
excusable delay ("Excusable Delay") in the performance of its
respective duties under this Agreement. An Excusable Delay shall
be deemed to have occurred if a Party's delay in performance is
due to causes beyond its respective reasonable control and not
occasioned by its respective intentional acts or negligence,
including, but not limited to, acts of God, partial or complete
destruction of the Aircraft or Engines, court actions and orders,
acts of public enemies, orders of any kind of the government of
the United States, or any state or local officials, or any civil
or military authority, insurrections, riots, earthquake, fire,
storm, restraint of government and people or other similar acts
or occurrences.
(b) Upon occurrence of an Excusable Delay, this Agreement shall
remain in full force and effect during the period of such
Excusable Delay so long as the same does not extend beyond sixty
(60) days, whether or not consecutive, and the definition of
"Delivery Date" shall be modified accordingly.
ARTICLE 9
INDEMNIFICATION
---------------
Section 9.01. Indemnification. Buyer agrees to indemnify, defend and
------------- ----------------
hold harmless Seller, its affiliates, successors, assigns, officers, agents,
directors and employees from and against any and all liabilities, damages,
losses, expenses, demands, claims, suits or judgments, arising out of the
ownership, possession, condition, maintenance, operation, disposition or use of
the Aircraft, Engine(s) or other item transferred to Buyer pursuant to this
Agreement subsequent to the Delivery, but excluding any damage or loss caused by
the negligence or willful misconduct of Seller, its affiliates, successors,
assigns, officers, agents, directors and employees. The foregoing sentence is
without prejudice to any rights that Buyer may have against Seller under or
relating to the Lease, the Indenture, the Security Agreement, or the other
documents relating to the leveraged lease contemplated thereby.
ARTICLE 10
INSURANCE
---------
Section 10.01. Liability Insurance. Buyer shall, at its expense,
-------------- --------------------
maintain or cause to be maintained, comprehensive aircraft liability insurance
covering the ownership, maintenance and use of the Aircraft, with insurers and
under terms reasonably satisfactory to Seller and with a minimum aggregate limit
of Three Hundred Million Dollars ($300,000,000) per occurrence.
9
<PAGE>
This coverage shall be endorsed to name Seller and its affiliates, successors,
assigns, directors, officers, agents and employees as additional insureds
("Additional Insureds"), and shall contain a standard cross-liability clause,
breach of warranty clause and a waiver of subrogation to expressly cover the
contractual liability to such parties assumed by Buyer in Article 10. Such
insurance shall be primary and without rights of contribution from any other
insurance which may be available to Seller.
Section 10.02. Hull Insurance. If Buyer, or any successor to
-------------- ---------------
Buyer's interest in any Aircraft, maintains hull insurance on the Aircraft,
Buyer shall require its, or its successor's, hull insurers to waive any and all
rights of subrogation which they may have against Seller or its affiliates,
assigns, directors, officers, agents and employees for any loss, damages or
destruction of the Aircraft.
Section 10.03. Insurance Certificates. Immediately prior to the
-------------- -----------------------
Delivery (and prior to the expiration of any insurance policy referred to in any
previously delivered certificate of insurance), Buyer shall furnish Seller with
insurance certificates certifying (a) that the policies of insurance required
by this Article 10 are in full force and effect (together with required waivers
of subrogation) and (b) that Seller shall be given thirty (30) days prior
written notice by the insurers in the event of either cancellation of material
change in coverage or cancellation of the waivers of subrogation. Nothing in
this Article 10 shall cause Buyer to provide insurance coverage for Buyer's
willful misconduct.
Section 10.04. Insurance Coverage Term. The insurance required to
-------------- ------------------------
be maintained by this Article 10 shall remain in full force and effect for three
(3) years from the Delivery Date.
ARTICLE 11
DEFAULT, REMEDIES
-----------------
Section 11.01. Events of Default. If any one (1) or more of the
-------------- ------------------
following events of default (herein "Events of Default") shall happen, then this
Agreement may, at the option of the party not in default, be terminated:
(a) If Buyer shall default in the payment of any monies due hereunder
to Seller.
(b) If either party shall default in the performance of any of the
provisions contained in this Agreement (other than as described
in Section 11.01(a)), which default shall continue for ten (10)
days after written notice of default to the defaulting party;
(c) If either party shall file a voluntary petition in bankruptcy, or
shall be adjudicated as bankrupt or insolvent, or shall file any
petition or answer seeking any reorganization, composition,
readjustment, liquidation or similar relief for itself under any
present or future statutes, law or regulation, or shall seek or
consent to or acquiesce in, the appointment of
10
<PAGE>
any trustee, or shall make any general assignment for the benefit
of creditors, or shall admit in writing its inability to pay its
debts generally as they become due;
(d) If a petition shall be filed against either party seeking any
reorganization, composition, readjustment, liquidation or similar
relief under any present or future statute, law or regulation,
and shall remain undismissed or unstayed for an aggregate of
sixty (60) days (whether or not consecutive), or if any trustee,
receiver or liquidator of either party is appointed, which
appointment shall remain unvacated, or unstayed for an aggregate
of sixty (60) days (whether or not consecutive); and
(e) If any representation or warranty made by either party herein or
made in any statement or certificate furnished or required
hereunder, or in connection with the execution and delivery of
this Agreement proves untrue in any material respect as of the
date of the issuance.
Section 11.02. Remedies.
-------------- ---------
(a) Upon the occurrence of an Event of Default by Seller, Buyer shall
have all rights and remedies available to it at law or equity
including, but not limited to, the equitable remedy of specific
performance.
(b) Upon the occurrence of an Event of Default by Buyer, the Seller
shall have all rights and remedies available to it at law or
equity including, but not limited to, the equitable remedy of
specific performance.
ARTICLE 12
CONDITIONS
----------
Section 12.01. Conditions to Buyer's Obligations. The purchase by
-------------- ----------------------------------
Buyer of the Aircraft is subject to the following conditions precedent:
At the time of each Delivery, Fellers, Snider, Blankenship, Bailey &
Tippens, P.C., special FAA counsel, shall have confirmed to Seller
that such counsel is forthwith furnishing Seller an opinion of said
counsel addressed to Seller and Buyer to the effect that:
(a) (i) a Partial Release releasing such Airframe or Engine from the
Indenture,
(ii) a Partial Release releasing such Airframe or Engine from
the Security Agreement,
11
<PAGE>
(iii) a Partial Termination terminating the Lease as to such
Airframe or Engine,
(iv) a Partial Release of Conveyance of Basic Tolls (Series A),
as to such Airframe or Engine,
(v) the FAA Bill of Sale as to such Aircraft, and
(b) all instruments necessary to cause the FAA to issue to Buyer an
FAA Certificate of Aircraft Registration in the name of Buyer
covering the related Aircraft have been duly filed with the FAA;
and
(c) legal title to the related Aircraft is vested in Buyer and the
related Airframe or Engine is free and clear of all liens and
encumbrances of record. (Items (a) (v), (b) and (c) not to be
included for Engine-only deliveries).
Section 12.02. Conditions to Seller's Obligations. Seller's
-------------- -----------------------------------
obligations under this Agreement are subject to the following conditions
precedent:
(a) The receipt by Seller or its designee of the Purchase Price
for the Airframe or Engine then being sold; and
(b) Seller's receipt of the insurance broker's report and
certificates referred to in Section 10.03 for the Airframe or
Engine then being sold.
ARTICLE 13
MISCELLANEOUS
-------------
Section 13.01. Notices. Unless otherwise specified in writing by
-------------- --------
the affected Party, all notices, approvals, requests, consents and other
communications given pursuant to this Agreement shall be in writing and shall be
deemed effective when received if hand-delivered, sent by facsimile, sent
priority/overnight delivery by United Parcel Service, or by certified or
registered mail, addressed as follows:
If to Buyer: United Parcel Service Co.
1400 N. Hurstbourne Parkway
Louisville, Kentucky 40223
Attn: Air Group Manager
Telephone: (502) 329-6500
Telecopy: (502) 329-6550
12
<PAGE>
If to Seller: Overseas Partners Capital Corp.
115 Perimeter Center Place, Suite 940
Atlanta, GA 30346
Attention: Michael J. Molletta
Telephone: (770) 913-6745
Telecopy: (770) 913-6756
Section 13.02. Exhibits. All Exhibits described in this Agreement
-------------- ---------
shall be deemed to be incorporated and made a part of this Agreement, except
that if there is any inconsistency between this Agreement and the provisions of
any Exhibit, the provisions of this Agreement shall control.
Section 13.03. Assignments. This Agreement, and the rights and
-------------- ------------
obligations of the Parties hereunder, shall not be assignable or delegable by
any Party hereto without the prior written consent of each other Party hereto,
which consent may be withheld in the sole discretion of the non-consenting
party.
Section 13.04. Binding Effect. This Agreement and the rights and
-------------- ---------------
obligations of the Parties hereunder, shall be binding upon and inure to the
benefit of each of the Parties, their respective permitted successors, assigns
and legal representatives.
Section 13.05. Captions. All Article and Section headings used in
-------------- ---------
this Agreement are for convenience only and shall not in any manner be deemed to
limit or restrict the context of the Article or Section to which they relate.
Section 13.06. Applicable Law. This Agreement shall be governed by
-------------- ---------------
and construed in accordance with the internal laws of the State of New York,
U.S.A.
Section 13.07. Entire Agreement. This Agreement shall constitute
-------------- -----------------
the entire agreement between the Parties with respect to the transaction
contemplated herein and shall not in any manner be supplemented, amended or
modified except by a written instrument executed on behalf of each of the
Parties by their duly authorized representatives.
Section 13.08. Expenses. Each of the Parties hereto shall be
-------------- ---------
responsible for its own costs and expenses incurred in connection with the
negotiation, preparation and execution of this Agreement. Buyer shall be
responsible for the fees and expenses of special FAA counsel described in
Section 12.01.
Section 13.09. Counterparts. This Agreement may be executed in
-------------- -------------
separate counterparts, each of which when so executed shall be deemed to be an
original and which, taken together, shall constitute one and the same
instrument.
Section 13.10. Broker's Commissions. Buyer and Seller represent to
-------------- ---------------------
the other that each respectively has negotiated this Agreement directly with the
other and that no brokers are entitled to a commission as a result of their
actions. Buyer and Seller respectively agree to indemnify and hold one another
harmless from and against all claims, demands, liabilities, damages, losses or
judgments which may be suffered by the other and which arise out of the actions
of or employment by the other with any agent or broker.
13
<PAGE>
Section 13.11. Non-Disclosure.
-------------- ---------------
(a) Seller covenants and agrees with Buyer for the benefit of Buyer
and its parent and affiliates that Seller will not make any use
whatsoever of, or cause others to make or assist others in making
any use whatsoever, of the corporate or trade name of Buyer,
United Parcel Service of America, Inc., or their affiliates, or
any portion thereof, or any of their trademarks, or any portion
thereof, in connection with any advertising, promotion, publicity
or other printed material without the written consent of an
officer of Buyer. Seller covenants and agrees that except as
provided by the provisions of any law, order, rule or regulation
under which Seller is obligated regarding Seller's ordinary
business operations, Seller shall make every reasonable effort
not to publicly disclose or describe its business relationship
with Buyer.
(b) Buyer covenants and agrees with Seller for the benefit of Seller
and its parent and affiliates that Buyer will not make any use
whatsoever of, or cause others to make or assist others in making
any use whatsoever, of the corporate or trade name of Seller, or
Seller's affiliates, or any portion thereof, in connection with
any advertising, promotion publicity or other printed material
without the written consent of an officer of Seller. Buyer
covenants and agrees that except as provided by the provisions of
any law, order, rule or regulation under which Buyer is obligated
regarding Buyer's ordinary business operations, Buyer shall make
every reasonable effort not to publicly disclose or describe its
business relationship with Seller.
(c) It is expressly understood and agreed that Buyer's and Seller's
obligations under this Section 13.11 shall survive performance of
the terms of this Agreement, its rescission or other termination
and that this Section 13.11 shall remain in full force and effect
independently of the other provisions of this Agreement.
14
<PAGE>
IN WITNESS WHEREOF, the Parties do hereby execute this Agreement
on the day and year first above written.
OVERSEAS PARTNERS CAPITAL CORP.
By: /s/ Michael Molleta
-----------------------
Its: Vice President
--------------
UNITED PARCEL SERVICE CO.
By: /s/ Matthew J. Capozzoli
---------------------------
Its: Vice President
--------------
15
<PAGE>
EXHIBIT A
to that certain
Aircraft Purchase Agreement
between
OVERSEAS PARTNERS CAPITAL CORP.
("Seller")
and
UNITED PARCEL SERVICE CO.
("Buyer")
Dated as of July 6, 1998
I. AIRCRAFT DESCRIPTION
A. AIRCRAFT
<TABLE>
<CAPTION>
AIRCRAFT MODEL REGISTRATION MANUFACTURER
--------------------- ---------------
NUMBER SERIAL NUMBER
------------- ---------------
<S> <C> <C>
1. Boeing 757-24APF N416UP 23903
2. Boeing 757-24APF N417UP 23904
3. Boeing 757-24APF N418UP 23905
4. Boeing 757-24APF N419UP 23906
5. Boeing 757-24APF N420UP 23907
</TABLE>
B. ENGINES
ENGINE MODEL MANUFACTURER
---------------- SERIAL NUMBER
-----------------
1. Pratt & Whitney 2040 P726505
2. Pratt & Whitney 2040 P726508
3. Pratt & Whitney 2040 P726511
4. Pratt & Whitney 2040 P726515
5. Pratt & Whitney 2040 * P726529
6. Pratt & Whitney 2040 P726501
16
<PAGE>
7. Pratt & Whitney 2040 P726509
8. Pratt & Whitney 2040 P726512
9. Pratt & Whitney 2040 ** P717992
10. Pratt & Whitney 2040 P726519
* occasionally identified incorrectly as 726518
** occasionally identified incorrectly as 727992
II. AIRCRAFT, ENGINES PURCHASE PRICE, DELIVERY DATE AND DELIVERY LOCATION
A. AIRCRAFT
<TABLE>
<CAPTION>
REGISTRATION PURCHASE DELIVERY DELIVERY LOCATION
NUMBER PRICE DATE
<S> <C> <C> <C>
1. N416UP $31,443,330.40 July 29, 1998 Albany, Buffalo or Syracuse, New York
2. N417UP $31,443,330.40 July 29, 1998 Albany, Buffalo or Syracuse, New York
3. N418UP $31,443,330.40 July 29, 1998 Albany, Buffalo or Syracuse, New York
4. N419UP $31,443,330.40 July 29, 1998 Albany, Buffalo or Syracuse, New York
5. N420UP $31,443,330.40 July 29, 1998 Albany, Buffalo or Syracuse, New York
B. ENGINES
MANUFACTURER PURCHASE DELIVERY DELIVERY LOCATION
SERIAL NUMBER PRICE DATE
1. P726505 $4,500,000 July 29, 1998 Albany, Buffalo or Syracuse, New York
2. P726508 $4,500,000 July 29, 1998 Albany, Buffalo or Syracuse, New York
3. P726511 $4,500,000 July 29, 1998 Albany, Buffalo or Syracuse, New York
4. P726515 $4,500,000 July 29, 1998 Albany, Buffalo or Syracuse, New York
5. P727529 $4,500,000 July 29, 1998 Albany, Buffalo or Syracuse, New York
6. P726501 $4,500,000 July 29, 1998 Albany, Buffalo or Syracuse, New York
7. P726509 $4,500,000 July 29, 1998 Albany, Buffalo or Syracuse, New York
8. P726512 $4,500,000 July 29, 1998 Albany, Buffalo or Syracuse, New York
9. P717992 $4,500,000 July 29, 1998 Albany, Buffalo or Syracuse, New York
10. P726519 $4,500,000 July 29, 1998 Albany, Buffalo or Syracuse, New York
</TABLE>
C. TOTAL PURCHASE PRICE DISTRIBUTION
1. Trustee: One Hundred Eighty-Four Million, Nine Hundred
Thousand Dollars ($184,900,000.00).
2. Overseas Partners Capital Corp.: Seventeen Million, Three
Hundred Sixteen Thousand, Six Hundred Fifty-Two Dollars
($17,316,652.00).
17
<PAGE>
EXHIBIT B
to that certain
Aircraft Purchase Agreement
between
OVERSEAS PARTNERS CAPITAL CORP.
("Seller")
and
UNITED PARCEL SERVICE CO.
("Buyer")
Dated as of July 6, 1998
- -------------------------------------------------------------------------------
AIRFRAME AND AIRFRAME DOCUMENTATION
ACCEPTANCE RECEIPT
UNITED PARCEL SERVICE CO. ("Buyer") hereby accepts and acknowledges
receipt from Overseas Partners Capital Corp. ("Seller"), in accordance with the
terms and conditions of the Aircraft Purchase Agreement dated as of July 6,
1998, between the parties hereto, of One (1) Boeing Model 757-24APF Aircraft;
Registration Number: N420UP
------
Manufacturer's Serial Number: 23907
-----
excluding engines, together with the related Aircraft Documentation, in
, , on July ____, 1998, at /a.m. / / p.m. / local time.
- ---- ----- ---------
UNITED PARCEL SERVICE CO.
By:
------------------------
Title:
---------------------
("Buyer")
18
<PAGE>
ATTACHMENT 1 TO EXHIBIT B
AIRCRAFT HOURS AND CYCLES
-------------------------
AS OF JULY____, 1998
BOEING MODEL 757-24APF
------
REGISTRATION NUMBER: N420UP
-------
MANUFACTURER'S SERIAL NUMBER: 23907
-------
A. AIRFRAME:
---------
Aircraft Total Time (Hours) .............................
----------------
Aircraft Total Landings (Cycles) ........................
----------------
19
<PAGE>
EXHIBIT B1
to that certain
Aircraft Purchase Agreement
between
OVERSEAS PARTNERS CAPITAL CORP.
("Seller")
and
UNITED PARCEL SERVICE CO.
("Buyer")
Dated as of July 6, 1998
- --------------------------------------------------------------------------------
ENGINE ACCEPTANCE RECEIPT
UNITED PARCEL SERVICE CO. ("Buyer") hereby accepts and acknowledges
receipt from Overseas Partners Capital Corp. ("Seller"), in accordance with the
terms and conditions of the Aircraft Purchase Agreement dated as of July 6,
1998, between the parties hereto, of Engine;
1. Manufacturer and Model Pratt & Whitney 2040
Manufacturer Serial Number P726505
in , , on _________ ____, 1998, at /a.m. / / p.m. /
--------- -----
local time.
UNITED PARCEL SERVICE CO.
By:
----------------------------
Title:
-------------------------
("Buyer")
20
<PAGE>
ATTACHMENT 1 TO EXHIBIT B1
ENGINE HOURS AND CYCLES
-----------------------
AS OF JULY ____, 1998
A. ENGINE
------
Engine Serial Number Hours Cycles
-------------------- ----- ------
1.
------- ----- ------
21
<PAGE>
EXHIBIT C
to that certain
Aircraft Purchase Agreement
between
OVERSEAS PARTNERS CAPITAL CORP.
("Seller")
and
UNITED PARCEL SERVICE CO.
("Buyer")
Dated as of July 6, 1998
- --------------------------------------------------------------------------------
FAA AIRCRAFT BILL OF SALE
-------------------------
<TABLE>
<CAPTION>
<S> <C>
FORM APPROVED
UNITED STATES OF AMERICA OMB NO. 2120-0042
U.S. DEPARTMENT OF TRANSPORTATION FEDERAL AVIATION ADMINISTRATION
AIRCRAFT BILL OF SALE
------------------------------------------------------------------
FOR AND IN CONSIDERATION OF $ THE
UNDERSIGNED OWNER(S) OF THE FULL LEGAL
AND BENEFICIAL TITLE OF THE AIRCRAFT DES-
CRIBED AS FOLLOWS:
-------------------------------------------------------------------------------------------------
UNITED STATES
REGISTRATION NUMBER N
-------------------------------------------------------------------------------------------------
AIRCRAFT MANUFACTURER & MODEL
-------------------------------------------------------------------------------------------------
AIRCRAFT SERIAL No.
------------------------------------------------------------------------------------------------
DOES THIS DAY OF 19
HEREBY SELL,GRANT, TRANSFER AND
DELIVER ALL RIGHTS, TITLE AND INTERESTS Do Not Write In This Block
IN AND TO SUCH AIRCRAFT UNTO: FOR FAA USE ONLY
------------------------------------------------------------------------------------------------
PURCHASER NAME AND ADDRESS
(IF INDIVIDUAL(S). GIVE LAST NAME, FIRST NAME, AND MIDDLE INITIAL.)
------------------------------------------------------------------------------------------------------------------------------
DEALER CERTIFICATE NUMBER
------------------------------------------------------------------------------------------------------------------------------
AND TO EXECUTORS, ADMINISTRATORS, AND ASSIGNS TO HAVE AND TO HOLD
SINGULARLY THE SAID AIRCRAFT FOREVER, AND WARRANTS THE TITLE THEREOF.
------------------------------------------------------------------------------------------------------------------------------
IN TESTIMONY WHEREOF HAVE SET HAND AND SEAL THIS DAY OF 19
------------------------------------------------------------------------------------------------------------------------------
NAME (S) OF SELLER SIGNATURE (S) TITLE
(TYPED OF PRINTED) (IN INK) (IF EXECUTED (TYPED OR PRINTED)
FOR CO-OWNERSHIP, ALL MUST
SIGN
------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------
ACKNOWLEDGMENT (NOT REQUIRED FOR PURPOSES OF FAX RECORDING. HOWEVER, MAY BE REQUIRED BY LOCAL LAW FOR VALIDITY OF THE
INSTRUMENT)
ORIGINAL: TO FAA
------------------------------------------------------------------------------------------------------------------------------
AC Form 8050-2(9/9)
</TABLE>
22
<PAGE>
EXHIBIT D
to that certain
Aircraft Purchase Agreement
between
OVERSEAS PARTNERS CAPITAL CORP.
("Seller")
and
UNITED PARCEL SERVICE CO.
("Buyer")
Dated as of July 6, 1998
- --------------------------------------------------------------------------------
WARRANTY BILL OF SALE
---------------------
KNOW ALL MEN BY THESE PRESENTS:
THAT the undersigned, Overseas Partners Capital Corp. ("Seller"), a
Delaware corporation, has the power and right to convey the legal and beneficial
title to that certain Boeing Model 757-24APF bearing registration number N420UP
and Manufacturer's Serial Number 23907 including all fixed equipment, parts,
components and accessories installed on said aircraft other than Pratt & Whitney
2040 engines.
THAT for and in consideration of the sum of Ten Dollars ($10) and
other valuable consideration, Seller does, this ____ day of __________, 1998,
grant, convey, transfer, bargain and sell, deliver and set over all of its
rights, title and interests to and in the above described aircraft, fixed
equipment, parts, components and accessories unto UNITED PARCEL SERVICE CO., a
Delaware corporation ("Buyer").
THE FOREGOING CONVEYANCE IS MADE "AS IS" AND "WITH ALL FAULTS", AND
(WITHOUT LIMITING THE DISCLAIMERS AND LIMITATIONS MADE IN ARTICLE 4 OF THE
AIRCRAFT PURCHASE AGREEMENT REFERRED TO BELOW, WHICH ARE HEREBY INCORPORATED BY
THIS REFERENCE), SELLER HEREBY DISCLAIMS ANY AND ALL IMPLIED WARRANTIES OF ANY
KIND, INCLUDING AS TO MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE.
The undersigned hereby warrants to Buyer, its successors and assigns,
that there is hereby conveyed to Buyer title to the aforesaid aircraft, fixed
equipment, parts, components and accessories free and clear of all liens,
encumbrances and rights of others of the type that Section 11.1 of the Lease (as
defined in the Aircraft Purchase Agreement referred to below) would not require
Buyer to remove upon redelivery and that it shall warrant and defend such title
forever against all claims and demands whatsoever; and that this bill of sale is
23
<PAGE>
made and delivered pursuant to the provisions of the Aircraft Purchase Agreement
between Buyer and Seller dated as of July 6, 1998.
OVERSEAS PARTNERS CAPITAL CORP.
By: /s/ Michael Molletta
--------------------
Title: Vice President
--------------
("Seller")
24
<PAGE>
EXHIBIT D1
to that certain
Aircraft Purchase Agreement
between
OVERSEAS PARTNERS CAPITAL CORP.
("Seller")
and
UNITED PARCEL SERVICE CO.
("Buyer")
Dated as of July 6, 1998
- --------------------------------------------------------------------------------
WARRANTY BILL OF SALE
---------------------
KNOW ALL MEN BY THESE PRESENTS:
THAT the undersigned, ("Seller"), a Delaware corporation, has the
power and right to convey the legal and beneficial title to that certain engine
Manufacturer Pratt & Whitney and Model 2040 bearing Manufacturer's Serial
Number P726519, including all fixed equipment, parts, components and accessories
installed on said engine.
THAT for and in consideration of the sum of Ten Dollars ($10) and
other valuable consideration, Seller does, this ____ day of _______, 1998,
grant, convey, transfer, bargain and sell, deliver and set over all of its
rights, title and interests to and in the above described engine, fixed
equipment, parts, components and accessories unto UNITED PARCEL SERVICE CO., a
Delaware corporation ("Buyer").
THE FOREGOING CONVEYANCE IS MADE "AS IS" AND "WITH ALL FAULTS", AND
(WITHOUT LIMITING THE DISCLAIMERS AND LIMITATIONS MADE IN ARTICLE 4 OF THE
AIRCRAFT PURCHASE AGREEMENT REFERRED TO BELOW, WHICH ARE HEREBY INCORPORATED BY
THIS REFERENCE), SELLER HEREBY DISCLAIMS ANY AND ALL IMPLIED WARRANTIES OF ANY
KIND, INCLUDING AS TO MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE.
The undersigned hereby warrants to Buyer, its successors and assigns,
that there is hereby conveyed to Buyer title to the aforesaid engine, fixed
equipment, parts, components and accessories free and clear of all liens,
encumbrances and rights of others of the type that Section 11.1 of the Lease (as
defined in the Aircraft Purchase Agreement referred to below) would not require
Buyer to remove upon redelivery and that it shall warrant and defend such title
forever against all claims and
25
<PAGE>
demands whatsoever; and that this bill of sale is made and delivered pursuant to
the provisions of the Aircraft Purchase Agreement between Buyer and Seller dated
as of July 6, 1998.
OVERSEAS PARTNERS CAPITAL CORP.
By: /s/ Michael Molletta
--------------------
Title: Vice President
--------------
("Seller")
26
<PAGE>
AGREEMENT
---------
THIS AGREEMENT (the "Agreement") is made as of April 17, 1998 by and
between:
1. OXFORD ADVISORS LTD, an exempted company incorporated under the laws of the
Cayman Islands ("Oxford"); and
2. OVERSEAS PARTNERS LTD., a company organized under the laws of Bermuda
("OPL").
W I T N E S S E T H
WHEREAS, Oxford wishes to form an exempted Cayman Islands company (the
"Fund") known as the "Oxford Strategic Income Fund," which shall be an
investment fund structured as a multi-manager fund with several portfolio
managers (the "Portfolio Managers");
WHEREAS, Oxford will be engaged as the Investment Manager of the Fund to
assist the Board of Directors of the Fund in the management of the Fund and the
selection of Portfolio Managers and will be compensated pursuant to the terms of
an Investment Management Agreement by and between Oxford and the Fund;
WHEREAS, Oxford will use its best efforts to attract additional investments
in the Fund according to a schedule agreed to between Oxford and OPL;
WHEREAS, the parties have agreed that OPL shall make an initial investment
in the Fund of US$400 million; and
WHEREAS, the parties have agreed that Oxford shall compensate OPL for its
investment in the Fund, according to the terms set forth herein, which
compensation shall be adjusted based upon the results of efforts to attract new
investments in the Fund.
NOW, THEREFORE, in consideration of premises and mutual agreements
hereinafter set forth, and for other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the parties hereto
agree as follows:
1. Formation and Structure of Cayman Islands Fund
----------------------------------------------
(a) The parties agree that Oxford shall establish the Fund, to be formed
as an exempted company under the laws of the Cayman Islands, and
Oxford shall use its best efforts to name the Fund the "Oxford
Strategic Income Fund" or such other similar name as shall be
available.
(b) The Fund will enter into Portfolio Management Agreements with each of
(i) Colonial Advisory Services, Inc., (ii) Eaton Vance Management,
(iii) Galliard
<PAGE>
Capital Management and (iv) Lord, Abbett & Co. or such other portfolio
managers selected by the Board of Directors (each a "Portfolio
Manager"), whereby each Portfolio Manager will be paid a portfolio
management fee (the "Portfolio Management Fee"), based upon the amount
of assets of the Fund under the management of such Portfolio Manager,
ranging from 0.15% to 0.50%, not to exceed 0.33% on average. Such
Portfolio Management Fee will be paid by the Fund out of the assets of
the Fund.
(c) Morgan Stanley Dean Witter Discover will serve as Investment
Consultant to the Fund pursuant to an Investment Consulting Services
Agreement to be entered into by the Fund and the Investment
Consultant, whereby the Investment Consultant will be paid an annual
investment consulting fee (the "Investment Consulting Fee") of 0.10%,
payable monthly in arrears, calculated on the net assets of the Fund.
Such Investment Consulting Fee will be paid by the Fund out of the
assets of the Fund.
(d) State Street Bank & Trust Co., located in Toronto, Canada (the
"Custodian"), will serve as the Custodian and Banker to the Fund. The
Custodian will be responsible for the custody of the Fund's assets,
including all cash, pursuant to a Custody Agreement to be entered into
by and between the Fund and the Custodian, on terms reasonably
satisfactory to the Custodian and the Fund, whereby the Custodian will
be paid usual and customary custody fees (the "Custody Fees") for the
custody of the Fund's assets. The Custody Fees will be paid to the
Custodian by the Fund out of the Fund's assets.
(e) Bridgewater Administration Limited, located in Guernsey, Channel
Islands (the "{Administrator"), will serve as the Fund's Administrator
pursuant to an Administration Agreement by and between the Fund and
the Administrator, whereby the Administrator will be paid an annual
administration fee (the "Administration Fee"), payable monthly in
arrears, calculated on the net assets of the Fund. Such
Administration Fee will be paid by the fund out of the assets of the
Fund. The Administrator will be responsible for the day to day
administration of the Fund, including receipt of all subscription and
redemption requests from shareholders of the Fund, and will coordinate
such requests with the Fund's Custodian.
(f) Coopers & Lybrand will be appointed by the Board to serve as the
Fund's independent auditors, and will be responsible for the
preparation of the Fund's annual financial statements which will be
distributed to shareholders.
(g) Oxford shall be appointed as Investment Manager of the Fund pursuant
to an Investment Management Agreement by and between the Fund and
Oxford (the "Investment Management Agreement"), whereby Oxford shall
receive from the Fund as compensation for its services, an annual
investment management fee calculated in accordance with Exhibit "A"
attached (the "Oxford Management Fee"). Such Oxford Management Fee
shall also be described in the Fund's Offering Circular, as may be
amended from time to time with the agreement of the parties hereto.
The Fund shall not pay management fees in excess of 1.0%, in the
aggregate, to Oxford and the Fund's portfolio managers with respect to
those assets of the Fund representing OPL's initial $400 million
investment in the Fund.
2
<PAGE>
(h) The organizational expenses of the Fund, including legal expenses,
shall be the obligations of the Fund and will be amortized over a
five-year period, beginning with the commencement date of operations
of the Fund.
(i) The Fund will be structured as an open-end fund, with Dealing Dates
occurring on a monthly basis.
(j) The Fund will maintain investments which, on a weighted average basis,
will have an average rating of "investment grade" or higher.
2. Preparation of Documents for the Fund
-------------------------------------
Oxford shall prepare the organizational documents for the Fund, including
the Memorandum of Association and Articles of Association of the Fund,
Offering Circular, resolutions, and any contracts with third-party service
providers, including any Portfolio Management Agreements, Distribution
Agreements, Custody Agreements, Investment Consulting Agreements, marketing
materials, and any other appropriate documentation. The commitment of OPL
to invest US$400 million in the Fund shall be subject to the satisfactory
completion, in OPL's opinion, of all legal documentation regarding this
Agreement and all other organizational documents for the Fund. Oxford and
OPL agree and acknowledge that each of the parties hereto has a duty to act
in good faith in connection with this Agreement and the preparation,
inspection and approval of all legal and organizational documentation
described herein.
3. OPL Investment in the Fund
--------------------------
(a) OPL hereby agrees to invest US$400 million of seed capital in the Fund
prior to the commencement of the Fund's operations, but in no event
later than thirty (30) business days after the Fund is established as
an exempted company in the Cayman Islands. The shares in the Fund
received by OPL as a result of its investment shall be voting shares
with voting rights at least equal to any other Fund shares.
(b) In consideration of OPL's initial investment of US$400 million in the
Fund, and subject to the further conditions and adjustments contained
in Sections 2 and 4 herein, Oxford will pay to OPL each year in
perpetuity an annual commitment fee (the "Commitment Fee") equal to
80% of the Oxford Management Fee received for that year. The
Commitment Fee shall be paid monthly in arrears, and shall consist of
80% of the Oxford Management Fee actually received by Oxford for the
preceding month. Such Commitment Fee may be adjusted as described in
Section 4 herein.
(c) Any payments of the Commitment Fee to be made by Oxford to OPL
pursuant to this Agreement shall be made as soon as practicable after
receipt by Oxford of the
3
<PAGE>
Oxford Management Fee, but in no event later than five (5) business
days after receipt of the Oxford Management Fee.
(d) The Fund shall bear the reasonable legal and other expenses in
connection with the preparation and negotiation of this Agreement.
Reasonable legal fees and disbursements of the Fund's counsel selected
by Oxford and approved by OPL relating to the formation of the Fund,
including the preparation of customary and usual documentation in
respect of the transactions contemplated in this Agreement shall be
subject to prior authorization and approval by Oxford and OPL.
An estimate of the non-legal costs and expenses expected to be
incurred by Oxford on behalf of the Fund shall be submitted by Oxford
to OPL for approval on a monthly basis, beginning May 1, 1998.
If OPL, in its discretion, does not invest at least US$400 million in
the Fund as contemplated by this Agreement, OPL hereby agrees to pay
the legal fees and disbursements and non-legal costs and expenses it
has previously authorized or approved, not to exceed US $175,000.
4. Adjustments to Commitment Fee paid to OPL. The Commitment Fee provided for
-----------------------------------------
in Section 3(b) shall be adjusted as follows:
(a) If the net amount of new subscriptions to the Fund (other than
the OPL subscriptions) exceeds US$300 million, but is less than
US $400 million (the "Target Amount"), the Commitment Fee paid to
OPL shall be reduced to 75% of the Oxford Management Fee. The
net amount of new subscriptions shall be calculated without
regard to declines in the market value of the Fund's investments
or subsequent redemptions of all or part of such subscriptions.
However, if the net amount of new subscriptions falls below US
$300 million at any time before the Target Amount is achieved as
a result of redemptions of all or part of such subscriptions,
then the Commitment Fee shall be increased immediately to 80% of
the Oxford Management Fee.
(b) If the net amount of new subscriptions (other than OPL
subscriptions) at any time exceeds the Target Amount, then the
Commitment Fee, on an annual basis, shall be reduced to 60% of
the Oxford Management Fee. The reduction of the Commitment Fee
to 60% of the Oxford Management Fee shall become permanent once
the net amount of such new subscriptions (other than OPL
subscriptions) exceeds the Target Amount for a period of ninety
(90) days.
(c) The Commitment Fee shall be paid monthly in arrears.
4
<PAGE>
5. Maintenance of OPL Investment
-----------------------------
Notwithstanding any provision contained in this Agreement, OPL shall have
the right to redeem or withdraw all or any part of its initial investment
of US$400 million in the Fund, together with earnings thereon, at any time
with five (5) days prior written notice to the Fund. Any redemption
proceeds payable to OPL shall be transmitted by wire transfer in federal
funds to such account and pursuant to such wire instructions as may be
delivered in writing to Oxford by OPL from time to time.
6. Use of Name
-----------
The parties agree that neither Oxford, the Fund nor any of the Fund's
service providers will use the names "Overseas Partners Ltd.", "Overseas",
"OPL" or any derivation thereof in the Fund's offering documents or
connection with the marketing of shares of the Fund.
7. Indemnification
---------------
Oxford agrees to indemnify and hold harmless, OPL, its Board, officers,
employees, shareholders and agents and each of them against any liability,
actions, proceedings, claims, demands, costs, expenses, settlements, losses
or damages whatsoever ("Losses") which they or any of them may incur or be
subject to as a consequence of this Agreement or as a result of the
performance of the functions and services provided for hereunder, except to
the extent that such Losses arise by reason of OPL's material breach of its
obligations under this Agreement.
8. OPL Right of First Offer. Patrick Harrigan and Oxford, its affiliates,
------------------------
successors and assigns (the "Oxford Group"), hereby grant to OPL a right of
first offer with respect to future investment products. Pursuant to this
right, the Oxford Group shall offer such products to OPL before offering
such products to others.
9. Representations and Warranties of Oxford. Oxford represents and warrants
----------------------------------------
to OPL that:
(a) it is an exempted company duly organized, validly existing and in good
standing under the laws of the Cayman Islands, and is not in
bankruptcy, liquidation, or moratorium; and that no lawsuit is pending
or, to its knowledge, threatened against it, the outcome of which
would prevent or impair the performance of its obligations under this
Agreement;
(b) it has the requisite corporate power and authority to execute and
deliver, and perform its obligations under this Agreement;
(c) all requisite corporate action has been taken by it to authorize the
execution, delivery and performance of this Agreement;
5
<PAGE>
(d) this Agreement has been duly executed and delivered for and on behalf
of it and constitutes a legal, valid and binding agreement of it,
enforceable against it in accordance with its terms except as such
enforceability may be limited by bankruptcy, insolvency, moratorium or
other similar laws of general applicability relating to or affecting
creditor's rights;
(e) the person executing this Agreement for and on behalf of it has full
power and authority to do so;
(f) the execution and delivery of this Agreement and the performance of
the obligations under this Agreement by it do not violate any contract
or other agreement to which it is a party or by which it is bound;
(g) it has all governmental, regulatory and self-regulatory licenses,
registrations or approvals, if any, required by applicable law to
perform its obligations under this Agreement;
(h) this Agreement represents an arms-length agreement between the parties
to this Agreement;
(i) all activities of Oxford contemplated by the execution and delivery of
this Agreement will at all times comply with the requirements imposed
by any provisions of applicable law;
(j) the representations and warranties of it set out in this Agreement
will be continuing during the term of this Agreement, and if at any
time during the term of this Agreement any event has occurred that
would make any of those representations and warranties untrue or
inaccurate in any material respect, it will promptly notify OPL of the
event and the parties related to the event.
10. Representations and Warranties of OPL. OPL represents and warrants to
--------------------------------------
Oxford that:
(a) it is a company duly organized, validly existing and in good standing
under the laws of Bermuda, and is not in bankruptcy, liquidation, or
moratorium; and that, except as disclosed in OPL's financial
statements, no lawsuit is pending or, to its knowledge, threatened
against it, the outcome of which would prevent or impair the
performance of its obligations under this Agreement;
(b) it has the requisite corporate power and authority to execute and
deliver, and perform its obligations under this Agreement;
(c) all requisite corporate action has been taken by it to authorize the
execution, delivery and performance of this Agreement;
6
<PAGE>
(d) this Agreement has been duly executed and delivered by it and
constitutes a legal, valid and binding agreement of it, enforceable
against it in accordance with its terms;
(e) the person executing this Agreement for and on behalf of it has full
power and authority to do so;
(f) the execution and delivery of this Agreement and the performance of
the obligations under this Agreement by it do not violate any contract
or other agreement to which it is a party or by which it is bound;
(g) it has all governmental, regulatory and self-regulatory licenses,
registrations or approvals, if any, required by applicable law to
perform its obligations under this Agreement;
(h) this Agreement represents an arms-length agreement between the parties
to this Agreement;
(i) all activities of OPL contemplated by the execution and delivery of
this Agreement will at all times comply with the requirements imposed
by any provisions of applicable law; and
(j) the representations and warranties of it set out in this Agreement
will be continuing during the term of this Agreement, and if at any
time during the term of this Agreement any event has occurred that
would make any of those representations and warranties untrue or
inaccurate in any material respect, it will promptly notify the Oxford
of the event and the parties related to the event.
11. Term and Termination
--------------------
This Agreement shall come into force as of the date hereof and continue in
effect until the Fund has been liquidated, except that the provisions
contained in Sections 2, 3, 4 and 7 shall survive the termination of this
Agreement.
12. Notices
-------
All notices given hereunder to any party shall be deemed sufficient if
contained in a written instrument delivered by facsimile with a hard copy
delivered via courier the following business day. All such notices herein
described shall be addressed to the other party as follows:
7
<PAGE>
(a) If to Oxford, to:
Mr. Patrick D. Harrigan
Managing Director
Oxford Advisors Ltd
P.O. Box 1043
Caledonian House, Mary Street
George Town, Grand Cayman
Cayman Islands
(b) If to OPL, to:
Overseas Partners Ltd.
Mintflower Place
P.O. Box HM1581
8 Par-La-Ville Road
Hamilton HM08 Bermuda
Attn: Secretary
All notices delivered pursuant to this Section shall be deemed to have been
received on the date of such delivery via facsimile provided however that
if such date does not fall on a business day, such notice shall be deemed
to have been received on the first business day following such delivery via
facsimile. For purposes of this Agreement, "business day" shall mean each
Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which
banking institutions in the Cayman Islands are authorized or obligated by
law to close.
13. Severability
------------
The parties intend every provision of this Agreement to be severable. If a
court of competent jurisdiction determines that any term or provision is
illegal or invalid for any reason, the illegality or invalidity shall not
affect the validity of the remainder of this Agreement. In such case, the
parties shall in good faith modify or substitute such provision consistent
with the original intent of the parties. Without limiting the generality
of this paragraph, if a court determines that any remedy stated in this
Agreement has failed of its essential purpose, then all other provisions of
this Agreement, including the limitations on liability and exclusion of
damages, shall remain fully effective.
14. No Partnership
--------------
Nothing herein shall be construed as causing or effecting a partnership
between or among all or any of the parties hereto in the Cayman Islands or
in any other jurisdiction.
15. Governing Law/Choice of Forum
-----------------------------
This Agreement shall be governed by, and construed in accordance with, the
laws of the Cayman Islands. Oxford and OPL hereby submit to the non-
exclusive jurisdiction of the
8
<PAGE>
courts of the Cayman Islands regarding any suit, action or proceeding out
of or relating to this Agreement.
16. Miscellaneous
-------------
(a) Neither Party may assign, transfer or in any manner hypothecate this
Agreement or any right or interest herein without the consent of the
other party, which consent shall not be unreasonably refused, and any
such attempt to transfer, assign or hypothecate without the consent of
the other party shall be null and void and without force and effect.
(b) This Agreement shall inure to the benefit of and shall bind the
parties hereto and their respective successors and assigns.
(c) This Agreement may be amended or modified only by a writing signed by
each of the parties hereto.
(d) This Agreement may be executed in counterparts, each of which, when
executed and delivered, shall be deemed to be an original, and all of
which when taken together shall constitute but one and the same
instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the day and year first above written.
OVERSEAS PARTNERS LTD. OXFORD ADVISORS LTD
By: /s/ Bruce Barone By: /s/ Patrick D. Harrigan
---------------- -----------------------
Name: Bruce Barone Name: Patrick D. Harrigan
Title: President and Title: Managing Director
Chief Executive Officer
PATRICK HARRIGAN
(with respect to Section 8 herein)
__________________________
9
<PAGE>
EXHIBIT A
---------
The Oxford Management Fee, together with the Portfolio Management Fees, will not
exceed 1.0% in the aggregate. There may be instances where certain large
investors may negotiate a reduced investment management/portfolio management fee
on their portion of assets invested in the Fund. In those instances, Oxford
shall consult with OPL and obtain OPL's prior approval of any such reduction in
investment management/portfolio management fees for those certain investors. A
separate class of shares will be created to facilitate the reduced
management/portfolio management fees for those investors. The Commitment Fee
payable to OPL will continue to be based upon a percentage of the Oxford
Management Fee actually received by Oxford for all classes of shares of the
Fund.
10
<TABLE> <S> <C>
<PAGE>
<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> 9-MOS
<FISCAL-YEAR-END> DEC-31-1998
<PERIOD-START> JAN-01-1998
<PERIOD-END> SEP-30-1998
<DEBT-HELD-FOR-SALE> 0
<DEBT-CARRYING-VALUE> 249,700
<DEBT-MARKET-VALUE> 304,078
<EQUITIES> 1,019,243
<MORTGAGE> 0
<REAL-ESTATE> 0
<TOTAL-INVEST> 1,982,518
<CASH> 321,878
<RECOVER-REINSURE> 0
<DEFERRED-ACQUISITION> 79,194
<TOTAL-ASSETS> 4,053,850
<POLICY-LOSSES> 427,564
<UNEARNED-PREMIUMS> 331,420
<POLICY-OTHER> 0
<POLICY-HOLDER-FUNDS> 0
<NOTES-PAYABLE> 852,673
0
0
<COMMON> 12,700
<OTHER-SE> 31,307
<TOTAL-LIABILITY-AND-EQUITY> 4,053,850
684,720
<INVESTMENT-INCOME> 58,808
<INVESTMENT-GAINS> 44,190
<OTHER-INCOME> 205,769
<BENEFITS> 277,020
<UNDERWRITING-AMORTIZATION> 79,120
<UNDERWRITING-OTHER> 0
<INCOME-PRETAX> 229,261
<INCOME-TAX> 10,129
<INCOME-CONTINUING> 219,132
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 219,132
<EPS-PRIMARY> 1.73
<EPS-DILUTED> 0
<RESERVE-OPEN> 0<F1>
<PROVISION-CURRENT> 0
<PROVISION-PRIOR> 0
<PAYMENTS-CURRENT> 0
<PAYMENTS-PRIOR> 0
<RESERVE-CLOSE> 0
<CUMULATIVE-DEFICIENCY> 0
<FN>
<F1>AMOUNTS FOR SECURITIES ACT INDUSTRY GUIDE 6 AND EXCHANGE ACT INDUSTRY GUIDE 4
DISCLOSURES ARE REQUIRED FOR ANNUAL FILINGS ONLY. ACCORDINGLY, NO AMOUNTS WILL
BE REPORTED FOR INTERIM FILINGS.
</FN>
</TABLE>
