<PAGE>
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549-1004
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported) August 21, 1998
--------------------------------
FIRST CAPITAL INSTITUTIONAL REAL ESTATE, LTD. - 3
- --------------------------------------------------------------------------------
(Exact name of registrant as specified in its charter)
Florida 0-14122 36-3330657
- --------------------------------------------------------------------------------
(State or other jurisdiction (Commission (IRS Employer
of incorporation) File Number) Identification No.)
Two North Riverside Plaza, Suite 1000, Chicago, Illinois 60606-2607
- --------------------------------------------------------------------------------
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code (312) 207-0020
------------------------------
- --------------------------------------------------------------------------------
(Former name or former address, if changed since last report.)
This document consists of 98 pages.
The Exhibit Index is located on page 3.
<PAGE>
ITEM 2. DISPOSITION OF ASSETS
- ------ ---------------------
1605 Main Street Associates, a joint venture in which First Capital
Institutional Real Estate, Ltd. - 3, (the "Registrant") owns a 50% interest,
sold its interest in the real property commonly known as Ellis Building
("Ellis"), located in Sarasota, Florida to Tricony Sarasota LTD., a Florida
Limited Partnership (the "Purchaser").
The closing of this transaction occurred on August 21, 1998. Ellis was sold for
$13,875,000 in cash to an unrelated party pursuant to arm's-length negotiations.
The Registrant's share of Sale Proceeds approximated $6,675,000, which was net
of actual and estimated closing expenses. For the quarter ending September 30,
1998, the Registrant will record a net gain for financial reporting purposes of
approximately $2,950,000 from this transaction. The Registrant will distribute
substantially all of the Sale Proceeds on February 28, 1999 to Limited Partners
of record as of August 21, 1998.
<PAGE>
ITEM 7. PRO FORMA FINANCIAL INFORMATION AND EXHIBITS
(page 5) Pro Forma Financial Information
Exhibits
2.1 (page 10) Closing Statement, dated August 21, 1998, between the
Registrant and the Purchaser.
2.2 (page 18) Contract for Purchase of Real Property, executed in June
1998 between the Registrant and the Purchaser.
No information is required under Items 1, 3, 4, 5, 6 and 8; therefore; those
Items have been omitted.
Page 3
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
FIRST CAPITAL INSTITUTIONAL REAL ESTATE, LTD. - 3
By: FIRST CAPITAL FINANCIAL CORPORATION
As General Partner
September 8, 1998 By: /s/ NORMAN M. FIELD
- ----------------- --------------------------------------
(Date) NORMAN M. FIELD
Vice President - Finance and Treasurer
Page 4
<PAGE>
FIRST CAPITAL INSTITUTIONAL REAL ESTATE, LTD. - 3
The accompanying unaudited Pro Forma Balance Sheet has been presented as if the
sale of Ellis had occurred on June 30, 1998. The accompanying unaudited Pro
Forma Statement of Income and Expenses for the six months ended June 30, 1998
has been presented as if the sale of Ellis had occurred on December 31, 1997.
The accompanying unaudited Pro Forma Statement of Income and Expenses for the
year ended December 31, 1997 has been presented as if the sales of Ellis, Park
Plaza Professional Building (sold in December 1997) and 3120 Southwest Freeway
Office Building (sold in February 1997) had occurred on December 31, 1996. The
properties sold in 1997 are hereafter collectively referred to as the "Sold
Properties". In the opinion of the General Partner, all adjustments necessary to
reflect the financial condition and results of operations of the Partnership
exclusive of the Sold Properties have been made. The unaudited pro forma
financial statements are not necessarily indicative of what the actual financial
position and results of operations would have been had such transactions
actually occurred as of December 31, 1996 and 1997 and June 30, 1998, nor do
they purport to represent the results of operations of the Registrant for future
periods.
Page 5
<PAGE>
FIRST CAPITAL INSTITUTIONAL REAL ESTATE, LTD. - 3
PRO FORMA BALANCE SHEET
(Unaudited)
(All dollars rounded to nearest 00s)
ASSETS
<TABLE>
<CAPTION>
June 30, 1998
-------------------------------------------
Pro Forma
Balance Pro Forma Balance
Sheet Ajustments Sheet
------------ ------------ -----------
<S> <C> <C> <C>
Investment in commercial rental property:
Land $ 860,000 $ (860,000)
Buildings and improvements 5,467,700 (5,467,700)
------------ ------------- -----------
6,327,700 (6,327,700)
Accumulated depreciation and amortization (2,557,300) 2,557,300
------------ ------------ -----------
Total investment property, net of
accumulated depreciation and amortization 3,770,400 (3,770,400)
Cash and cash equivalents 4,638,900 6,584,300 $11,223,200
Investment in debt securities 993,300 993,300
Restricted cash 50,000 (50,000)
Rents receivable 3,800 5,600 9,400
Investment in joint venture 5,017,800 5,017,800
Other assets 41,900 (16,700) 25,200
------------ ------------ -----------
$ 14,516,100 $ 2,752,800 $17,268,900
============ ============ ===========
LIABILITIES AND PARTNERS' CAPITAL
Liabilities:
Accounts payaable and accrued expenses $ 200,500 $ (131,400) $ 69,100
Due to Affiliates 65,500 65,500
Security deposits 20,400 (20,400)
Distributions payable 355,700 6,673,000 7,028,700
Other liabilities 28,500 28,500
------------ ------------ ------------
670,600 6,521,200 7,191,800
------------ ------------ ------------
Partners' capital:
General partner (deficit) (136,500) 29,500 (107,000)
Limited Partners (45,737 Units issued
and outstanding 13,982,000 (3,797,900) 10,184,100
------------ ------------ -----------
13,845,500 (3,768,400) 10,077,100
------------ ------------ -----------
$ 14,516,100 $ 2,752,800 $17,268,900
============ ============ ===========
</TABLE>
The accompanying notes are an integral part of the pro forma
financial statements
Page 6
<PAGE>
FIRST CAPITAL INSITUTIONAL REAL ESTATE, LTD. - 3
PRO FORMA STATEMENT OF INCOME AND EXPENSES
(Unaudited)
(All dollars rounded to nearest 00s except per Unit amounts)
<TABLE>
<CAPTION>
Six Months Ended June 30, 1998
--------------------------------------
Pro Forma
Statement of Statement of
Income and Pro Forma Income and
Expenses Adjustments Expenses
----------- ----------- ------------
<S> <C> <C> <C>
Income:
Rental $ 665,700 $ (665,700) $
Interest 332,400 (7,000) 325,400
---------- ----------- ------------
998,100 (672,700) 325,400
---------- ----------- ------------
Expenses:
Depreciation and amortization 119,800 (119,800)
Property operating:
Affiliates 33,700 (33,700)
Nonaffiliates 151,600 (151,600)
Real estate taxes 47,500 (47,500)
Insurance - Affiliate 5,400 (5,400)
Repairs and maintenance 87,300 (87,300)
General and administrative:
Affiliates 9,900 9,900
Nonaffiliates 70,200 70,200
---------- ----------- ------------
524,400 (445,300) 80,100
---------- ----------- ------------
Income before income from participation
in joint venture 472,700 (227,400) 245,300
Income from participation in joint
venture 170,900 170,900
---------- ----------- ------------
Net income $ 643,600 $ (227,400) $ 416,200
========== =========== ============
Net income allocated to General Partner $ 71,200 $ (13,500) $ 57,700
========== =========== ============
Net income allocated to Limited
Partners $ 572,400 $ (213,900) $ 358,500
========== =========== ============
Net income allocated to Limited
Partners per Unit (45,737 Units
outstanding) $ 12.52 $ (4.68) $ 7.84
========== ============ ============
</TABLE>
The accompanying notes are an integral part of the pro forma
financial statements
Page 7
<PAGE>
FIRST CAPITAL INSTITUTIONAL REAL ESTATE, LTD. -- 3
PRO FORMA STATEMENT OF INCOME AND EXPENSES
(All dollars rounded to nearest 00s
except per Unit amounts)
<TABLE>
<CAPTION>
Year Ended December 31, 1997
----------------------------------------------------------
Sold Pro Forma
Ellis Properties Statement of
Statement of Pro Forma Pro Forma Income and
Income and Adjustments Adjustment Expenses
Expenses (Unaudited) (Unaudited) (Unaudited)
---------- ----------- ----------- -----------
<S> <C> <C> <C> <C>
Income:
Rental $2,846,600 $(1,285,600) $(1,561,000) $
Interest 298,700 (2,700) (3,900) 292,100
Net gain on sale of property 183,500 (183,500) 0
---------- ----------- ----------- --------
3,328,800 (1,288,300) (1,748,400) 292,100
---------- ----------- ----------- --------
Expenses:
Depreciation and amortization 701,100 (234,900) (466,200)
Property operating:
Affiliates 210,300 (87,700) (122,600)
Nonaffiliates 588,200 (245,700) (342,500)
Real estate taxes 301,400 (88,800) (212,600)
Insurance -- Affiliate 27,200 (12,200) (15,000)
Repairs and maintenance 463,800 (166,500) (297,300)
General and administrative:
Affiliates 19,400 19,400
Nonaffiliates 127,900 127,900
---------- ----------- ----------- --------
2,439,300 (835,800) (1,456,200) 147,300
---------- ----------- ----------- --------
Income before income from participation in
joint venture 889,500 (452,500) (292,200) 144,800
Income from participation in joint venture 423,600 423,600
---------- ----------- ----------- --------
Net income 1,313,000 (452,500) (292,200) 568,400
========== =========== =========== ========
Net income allocated to General Partner 189,000 (56,000) (46,800) 86,300
========== =========== =========== ========
Net income allocated to Limited Partners 1,124,000 (396,500) (245,400) 482,100
========== =========== =========== ========
Net income allocated to Limited
Partners per Unit (45,737 Units
outstanding $ 24.58 $ (8.67) $ (5.37) $ 10.54
========== =========== =========== ========
</TABLE>
The accompanying notes are an integral part of the pro forma
financial statements
Page 8
<PAGE>
FIRST CAPITAL INSTITUTIONAL REAL ESTATE, LTD. - 3
Notes to Pro Forma Balance Sheet and
Pro Forma Statements of Income and Expenses
1) For the purpose of the Pro Forma Balance Sheet:
a) the accounts for land, buildings and improvements, accumulated
depreciation and amortization, restricted cash, rents receivable, other
assets, accounts payable and accrued expenses and security deposits have
been adjusted as of June 30, 1998 to reflect the sale of the Registrant's
interest in Ellis.
b) Cash and cash equivalents has been adjusted to include the net cash
received by the Registrant from the purchaser of Ellis.
c) Distributions payable has been adjusted to reflect the amount of the
special distribution of Sale Proceeds of Ellis to Limited Partners as if
such special distribution had been declared as of June 30, 1998.
2) For the purpose of the Pro Forma Statements of Income and Expenses for the
six months ended June 30, 1998 and for the year ended December 31, 1997, the
adjustments to the income and expenses reflect the Registrant's interest in
Ellis and the operations of the Sold Properties.
Page 9
<PAGE>
- --------------------------------------------------------------------------------
CLOSING STATEMENT INFORMATION
- --------------------------------------------------------------------------------
Property Name: ELLIS OFFICE BUILDING
Seller: 1605 MAIN STREET ASSOCIATES,
a Florida joint venture
Purchaser: TRICONY SARASOTA LTD.,
a Florida limited partnership
Proration Date: 8/20/98
Proration as of: 11:59 PM, THURSDAY, AUGUST 20, 1998
Closing Date: 8/21/98
Closing as of: FRIDAY, AUGUST 21, 1998
Tax Begin Date: 1/1/98
Tax End Date: 12/31/98
Month Begin Date 8/1/98
Month End Date 8/31/98
<PAGE>
CLOSING STATEMENT
ELLIS OFFICE BUILDING
- --------------------------------------------------------------------------------
SELLER: 1605 MAIN STREET ASSOCIATES,
a Florida joint venture
PURCHASER: TRICONY SARASOTA LTD.,
a Florida limited partnership
PRORATION DATE: 11:59 PM, THURSDAY, AUGUST 20, 1998
CLOSING (FUNDING) FRIDAY, AUGUST 21, 1998
- --------------------------------------------------------------------------------
<TABLE>
<CAPTION>
CREDIT CREDIT
PURCHASER SELLER
------------- -------------
<S> <C> <C>
PURCHASE PRICE 13,875,000.00
EARNEST MONEY (held by Seller) 500,000.00
INTEREST ON EARNEST MONEY 3,778.30
PRO-RATE PROPERTY TAXES (FOR MONTH OF CLOSING) 129,503.04
[See Schedule A]
PRO-RATE AUGUST, 1998 LEASE CHARGES 70,739.07
[See Schedule D]
TENANT PREPAID RENTS 37,549.41
[See Schedule B]
PRO-RATE SERVICE CONTRACTS 516.86 .
[See Schedule C]
SECURITY DEPOSITS 33,345.29
[See Schedule D]
AUGUST GROUND RENT ($2,500/mth / 31 days X 11 days) 887.10
------------- -------------
SUBTOTALS 775,431.97 13,875,887.10
CASH AMOUNT DUE TO SELLER 13,100,455.13
------------- -------------
TOTAL CREDITS 13,875,887.10 13,875,887.10
============= =============
</TABLE>
NOTES:
[1] All real estate taxes, personal property taxes and assessments relating to
the Property are to be reprorated or prorated upon receipt of actual
bill(s).
[2] Utility payments shall be directed to the parties for their respective
periods of ownership based upon meter reads ordered prior to the Closing
Date.
[3] Seller agrees to pay all invoices or charges payable to service contract
vendors or other vendors of supplies or services which are unpaid at Closing
and relate to periods prior to and including August 20, 1998, or which
relate to periods after Closing to the extent Seller received a credit from
Purchaser at Closing.
[4] Per First Amendment to Purcahse Agreement, interest calculated 8/1-8/19:
$68.49 x 20 days = $1,369.80
APPROVED: SELLER APPROVED: PURCHASER
1605 MAIN STREET ASSOCIATES, TRICONY SARASOTA LTD.,
a Florida joint venture a Florida limited partnership
By: FIRST CAPITAL INSTITUTIONAL By: Tricony Sarasota Corp., a Florida
REAL ESTATE, LTD-2, a Florida corporation, it's sole general
limited partnership partner
By: FIRST CAPITAL FINANCIAL By: ________________________________
CORPORATION, a Florida corporation, Richard Torres
its sole general partner President
By: ________________________________
By: FIRST CAPITAL INSTITUTIONAL REAL
ESTATE, LTD-3, a Florida limited
partnership
By: FIRST CAPITAL FINANCIAL
CORPORATION a Florida corporation,
its sole general partner
By: ________________________________
<PAGE>
<TABLE>
<CAPTION>
- ---------------------------------------------------------------------------------------
ELLIS OFFICE BUILDING
SOURCES AND USES STATEMENT
- ---------------------------------------------------------------------------------------
PURCHASER'S SOURCES AND USES:
<S> <C> <C>
BALANCE OF CASH TO BE FUNDED BY PURCHASER 13,100,455.13
---------------
ADDITIONAL CASH OUTLAYS BY PURCHASER:
CHICAGO TITLE INSURANCE COMPANY
Title Insurance Policy Endorsements (100%) 4,485.00
Search and Exam Fees 750.00
Mortgage Stamps & Intangible Tax on Mortgage 61,050.00
Escrow Fees (50%) 375.00
Recording Charges (100%) 600.00
Survey Cost (100%) POC
--------------
PURCHASER'S CLOSING COSTS 67,260.00
---------------
TOTAL CASH OUTLAY BY PURCHASER 13,167,715.13
===============
- ---------------------------------------------------------------------------------------
SELLER'S SOURCES AND USES:
CASH AMOUNT DUE TO SELLER 13,100,455.13
---------------
TOTAL SELLER'S SOURCES 13,100,455.13
---------------
ITEMS PAYABLE FROM SELLER'S PROCEEDS AT CLOSING:
CHICAGO TITLE INSURANCE COMPANY
Title Insurance Base Premium (100%) 40,850.00
Out of Pocket Expense 50.00
Transfer Taxes (100%) 97,125.70
Escrow Fees (50%) 375.00
--------------
138,400.70
COMMISSION FOR CUSHMAN & WAKEFIELD 346,875.00
---------------
TOTAL CASH OUTLAY BY SELLER 485,275.70
BALANCE TO SELLER 12,615,179.43
===============
</TABLE>
<PAGE>
SCHEDULE A
<TABLE>
<CAPTION>
- ---------------------------------------------------------------------------------------------
ELLIS OFFICE BUILDING
PRO-RATE 1997 PROPERTY TAXES
PRORATION MADE AS OF: 11:59 PM, THURSDAY, AUGUST 20, 1998
- ---------------------------------------------------------------------------------------------
<S> <C> <C>
ACTUAL 1997 REAL ESTATE TAXES
203,744.00
------------
ESTIMATED 1998 TAXES 203,744.00
PURCHASER'S PRORATA SHARE OF 1998 TAXES 133 /365 36.438%
------------
PURCHASER'S SHARE OF 1998 TAXES 74,240.96
SELLER'S SHARE OF 1998 TAXES 129,503.04
CREDIT DUE TO PURCHASER (SELLER): 129,503.04
============
</TABLE>
<PAGE>
SCHEDULE B
- ------------------------------------------------------------------------------
ELLIS OFFICE BUILDING
TENANT PREPAID RENTS
PRORATION MADE AS OF: 11:59 PM, THURSDAY, AUGUST 20, 1998
- ------------------------------------------------------------------------------
<TABLE>
<CAPTION>
AMOUNT
SUITE # TENANT NAME PREPAID
----------------------------------------------------------------------
<C> <C> <S> <C>
Prepaid Rent:
Airborne Express 35.30
Ani Site Development 390.60
Employers Security Company, Inc. 28.27
Federal Express 331.96
Goldsmith Stanley 26.75
Ardis Company 478.84
Nationsbsank 35,741.23
Paging Network of Atlanta 0.28
United Parcel Service 253.50
University Club 262.68
---------
CREDIT TO PURCHASER 37,549.41
=========
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
SCHEDULE C
-----------------------------------------------------------------------------------------------------------------
ELLIS OFFICE BUILDING
RECURRING PAYABLES PRORATION
PRORATION MADE AS OF: 11:59 PM, THURSDAY, AUGUST 20, 1998
-----------------------------------------------------------------------------------------------------------------
SERVICE CONTRACTS
CREDIT DUE
BILLING PERIOD # of DAYS PURCHASER
VENDOR NAME PAYMENT BEGIN END CREDIT or (SELLER)
------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
PAID BY SELLER
A-1 Orange Cleaning Service Co. (113.00) 08/01/98 08/31/98 11 (40.10)
Carrier Corporation (410.00) 08/01/98 08/31/98 11 (145.48)
Clean Sweep Parking Lot Maintenance (100.00) 08/01/98 08/31/98 11 (35.48)
Control Systems Specialists, Inc. (64.14) 08/01/98 08/31/98 11 (22.76)
Kibler Chemical Corporation (256.80) 08/01/98 08/31/98 11 (91.12)
Marble Renewal (250.00) 08/01/98 08/31/98 11 (88.71)
Montgomery KONE (1,720.00) 08/01/98 08/31/98 11 (610.32)
Orkin Pest Control (86.67) 08/01/98 08/31/98 11 (30.75)
Tropex Plant Sales, Leasing & Maintenance, Inc. (115.56) 08/01/98 08/31/98 11 (41.01)
U.S. Lawns of Sarasota, Inc. (770.00) 08/01/98 08/31/98 11 (273.23)
CREDIT DUE TO PURCHASER (SELLER) (1,378.96)
------------
PAYABLE BY PURCHASER
U.S. Security Associates 546.95 08/17/98 08/21/98 4 437.56
CREDIT DUE TO PURCHASER (SELLER) 437.56
------------
INCOME
Airborne Express 53.50 08/01/98 08/31/98 11 18.98
Airtouch Paging 0.00 08/01/98 08/31/98 0 0.00
American Portable Telecom 3,150.00 07/01/98 09/30/98 41 1,403.80
Ardis Company 0.00 04/01/98 03/31/99 0 0.00
Bell South 0.00 08/01/98 08/31/98 0 0.00
Dial Page 0.00 08/01/98 08/31/98 0 0.00
Federal Express 50.00 08/01/98 08/31/98 11 17.74
Mobile Media Communications 0.00 08/01/98 08/31/98 0 0.00
Paging Network Tampa 0.00 08/01/98 08/31/98 0 0.00
Pagenet Tampa 0.00 08/01/98 08/31/98 0 0.00
Primeco Personal Comm. 0.00 08/01/98 07/31/99 0 0.00
Sarasota Cellular One 0.00 08/01/98 08/31/98 0 0.00
Sun Paging (Pronet) 0.00 08/01/98 08/31/98 0 0.00
United Parcel Service 50.00 08/01/98 08/31/98 11 17.74
CREDIT DUE TO PURCHASER (SELLER) 1,458.26
-----------
TOTAL CREDIT DUE TO PURCHASER (SELLER) 516.86
===========
</TABLE>
<TABLE>
<CAPTION>
Notes:
August Balance
Proratable Prior
Fees Due* to 8/1/98
---------- ---------
<S> <C> <C>
Airtouch Paging 1,183.00 266.84
American Porable Telecom 0.00 479.34
Ardis Company (annual 4/98 - 3/98) 8,120.66 0.00
Bell South 546.00 0.00
Dial Page 819.00 67.49
Mobile Media Communications 591.50 496.30
Paging Network Tampa 346.28 0.00
Pagenet Tampa 716.63 0.00
Primeco Personal Comm. (annual 8/98-7/99) 22,680.00 0.00
Sarasota Cellular One 1,547.00 3,359.84
Sun Paging (Pronet) 184.36 456.65
---------- ---------
TOTAL 36,734.43 5,126.46
</TABLE>
*Does not include variable electric charges for August.
<PAGE>
<TABLE>
<CAPTION>
SCHEDULE D
- -----------------------------------------------------------------------------------------------------------------------------
ELLIS OFFICE BUILDING
RENTAL CHARGE, DEPOSIT RECONCILIATION, AND DELINQUENCY SCHEDULE
PRORATION MADE AS OF: 11:59 PM, THURSDAY, AUGUST 20, 1998
- -----------------------------------------------------------------------------------------------------------------------------
AUGUST AUGUST AUGUST PR'S
TENANT MONTHLY ESCALATION OTHER TOTAL CHARGES PRORATA
TENANT DEPOSITS(1) RENT CHARGES INCOME CHARGES PAID SHARE
- -----------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
American Bankcard Digital Merchant 4,696.73 5,790.55 203.74 - 5,994.29 5,994.29 2,127.01
Bewley and Associates 1,947.35 1,937.38 36.05 90.00 2,063.43 2,063.43 732.18
Cavanaugh And Company - 5,995.21 104.15 270.00 6,369.36 6,369.36 2,260.10
Corbett Susan 481.24 778.39 17.08 45.00 840.47 840.47 298.23
Custima International Corp. 3,084.08 3,084.08 27.34 165.00 3,276.42 3,276.42 1,162.60
Employers Security Company - 778.67 0.73 45.00 824.40 824.40 292.53
Ford Edwin L 1,466.84 1,370.88 12.52 90.00 1,473.40 1,473.40 522.82
Gardner James W. - 1,500.42 63.41 120.00 1,683.83 1,683.83 597.49
Goldsmith Stanley 699.00 1,663.75 1.51 45.00 1,710.26 1,710.26 606.87
Gulfside Realty Company 840.32 785.33 14.92 45.00 845.25 - -
IGIC Management Company 2,137.14 1,997.33 40.67 45.00 2,083.00 2,083.00 739.13
Jim E. Meeks, Jr. - 3,132.37 46.31 70.00 3,248.68 3,248.68 1,152.76
Lyons And Beaudry - 3,331.25 119.39 222.89 3,673.53 3,673.53 1,303.51
Mercury Printing (Seapress, Inc.) - 2,020.58 88.01 - 2,108.59 2,108.59 748.21
Nationsbank - 67,447.02 33,415.63 585.00 101,447.65 101,447.65 35,997.55
Nationsbank - 2,140.19 81.21 - 2,221.40 2,221.40 788.24
Painewebber Inc. - 17,741.34 761.55 1,410.00 19,912.89 18,422.99 6,537.19
PBCO, Inc. - 6,799.21 284.56 - 7,083.77 7,083.77 2,513.60
Pinnacle Financial Advisors 956.29 1,085.96 36.54 45.00 1,167.50 1,167.50 414.27
Rauscher Pierce Refsnes 1,603.23 2,167.00 20.61 75.00 2,262.61 2,215.22 786.05
Scovill William H P A 1,998.76 1,984.75 35.84 135.00 2,155.59 2,155.59 764.89
Timmermans Michel 549.00 549.00 12.49 - 561.49 561.49 199.24
Trottier Richard 781.92 878.57 - - 878.57 - -
Udell Associates of Florida 1,646.23 1,494.58 - 95.00 1,589.58 - -
University Club 902.50 14,865.02 1,259.70 2,063.00 18,187.72 18,187.72 6,453.71
Valuation Advisory Services - 897.88 16.71 45.00 959.59 959.59 340.50
Viatical Capital Inc. 3,733.86 4,032.67 170.10 180.00 4,382.77 4,382.77 1,555.18
Watson and Walker 5,178.80 4,840.00 105.13 255.00 5,200.13 5,200.13 1,845.21
===========================================================================================
32,703.29 161,089.38 36,975.90 6,140.89 204,206.17 199,355.48 70,739.07
</TABLE>
<TABLE>
<CAPTION>
- -------------------------------------------------------------------------------------------------------
AUGUST
& PRIOR TOTAL TOTAL
BALANCE BALANCE BALANCE SR'S PR'S
O/S PRIOR 8/1 OR 8/1 PMTS SHARE O/S SHARE O/S
-------- --------- ----------- ---------- ---------
<S> <C> <C> <C> <C> <C>
American Bankcard Digital Merchant 1,284.08 1,284.08 - 1,284.08 -
Bewley and Associates - - - - -
Cavanaugh And Company - - - - -
Corbett Susan - - - - -
Custima International Corp. - - - - -
Employers Security Company - - - - -
Ford Edwin L - - - - -
Gardner James W. - - - - -
Goldsmith Stanley - - - - -
Gulfside Realty Company 2,535.75 1,690.50 845.25 2,235.82 299.93
IGIC Management Company - - - - -
Jim E. Meeks, Jr. - - - - -
Lyons And Beaudry - - - - -
Mercury Printing (Seapress, Inc.) - - - - -
Nationsbank - - - - -
Nationsbank - - - - -
Painewebber Inc. 1,512.78 22.88 1,489.90 984.11 528.67
PBCO, Inc. - - - - -
Pinnacle Financial Advisors - - - - -
Rauscher Pierce Refsnes 47.39 - 47.39 30.57 16.82
Scovill William H P A - - - - -
Timmermans Michel - - - - -
Trottier Richard 878.57 - 878.57 566.82 311.75
Udell Associates of Florida 1,589.58 - 1,589.58 1,025.54 564.04
University Club - - - - -
Valuation Advisory Services - - - - -
Viatical Capital Inc. - - - - -
Watson and Walker - - - - -
--------- --------- --------- --------- ---------
7,848.15 2,997.46 4,850.69 6,126.94 1,721.21
</TABLE>
NOTES:
- ------
(1) Mobile Media Communications also has a security deposit of $642.00.
<PAGE>
SCHEDULE E
<TABLE>
<CAPTION>
- ----------------------------------------------------------------------------------------------
ELLIS OFFICE BUILDING
SALES TAX
- ----------------------------------------------------------------------------------------------
TOTAL
AUGUST CHARGES BALANCE BALANCE PR'S
TENANT SALES TAX PAID PRIOR 8/1 FOR 8/1 PMTS SHARE O/S
- ----------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
Airborne Express 3.75 3.75 0.00 0.00 0.00
American Bankcard Digital Merchant 419.60 419.60 129.28 0.00 129.28
Bewley and Associates 144.44 144.44 0.00 0.00 0.00
Cavanaugh and Company 445.85 445.85 0.00 0.00 0.00
Corbett, Susan 58.84 58.84 0.00 0.00 0.00
Custima International Corp. 229.35 229.35 0.00 0.00 0.00
Employers Security Company 57.71 57.71 0.00 0.00 0.00
Federal Express 3.50 3.50 0.00 0.00 0.00
Ford, Edwin L 103.14 103.14 0.00 0.00 0.00
Gardner, James W 117.87 117.87 0.00 0.00 0.00
Goldsmith, Stanley 119.72 119.72 0.00 0.00 0.00
Gulfside Realty Company 59.16 0.00 118.32 59.16 177.48
IGIC Management Company 145.81 145.81 0.00 0.00 0.00
Jim E. Meeks, Jr. 227.41 227.41 0.00 0.00 0.00
Lyons and Beaudry 257.15 257.15 0.00 0.00 0.00
Mercury Printing (Seapress, Inc.) 147.60 147.60 0.00 0.00 0.00
Nationsbank 7,118.04 7,118.04 0.00 0.00 0.00
Nationsbank 155.49 155.49 0.00 0.00 0.00
Painewebber Inc. 1,395.50 1,335.25 53.31 60.25 113.56
PBCO, Inc 495.86 495.86 0.00 0.00 0.00
Pinnacle Financial Advisors 83.59 83.59 0.00 0.00 0.00
Rauscher Pierce Refsnes 158.38 168.22 64.75 -9.84 54.91
Scovill, William H P A 150.89 150.89 0.00 0.00 0.00
Timmermans, Michael 39.30 39.30 0.00 0.00 0.00
Trottier, Richard 61.50 0.00 0.00 61.50 61.50
Udell Associates of Florida 111.27 0.00 0.00 111.27 111.27
Untied Parcel Service 3.50 3.50 0.00 0.00 0.00
University Club 1,273.14 1,273.14 0.00 0.00 0.00
Valuation Advisory Services 67.17 67.17 0.00 0.00 0.00
Viatical Capital Inc. 306.80 306.80 0.00 0.00 0.00
Watson and Walker 367.16 367.16 0.00 0.00 0.00
-------------------------------------------------------------
TOTAL 14,328.49 14,046.15 365.66 282.34 648.00
Note:
Seller is to pay sales tax collected. Purchaser is to pay sales tax collected after closing.
</TABLE>
<PAGE>
ELLIS BUILDING
SARASOTA, FLORIDA
REAL ESTATE SALE AGREEMENT
--------------------------
THIS REAL ESTATE SALE AGREEMENT (this "Agreement") is made as of the ____
day of June, 1998, by and between 1605 MAIN STREET ASSOCIATES, a Florida joint
venture ("Seller"), having an office at c/o Equity Office Properties Management
Corp., Two North Riverside Plaza, Suite 2200, Chicago, Illinois 60606, and
TRICONY FLORIDA CORPORATION, a Florida corporation ("Purchaser"), having an
office at 313 1/2 Worth Avenue, Suite 1-B, Palm Beach, Florida 33480.
RECITALS
--------
A. Seller is the owner of that certain parcel of real estate (the "Fee
Parcel") in the City of Sarasota, County of Sarasota, State of Florida, which
parcel is more particularly described in attached EXHIBIT A-1.
B. Seller is also the owner of the lessee's interest in and to a leasehold
estate in certain real property located in the City of Sarasota, County of
Sarasota, State of Florida, which parcel is more particularly described in
attached EXHIBIT A-2 (the "Leasehold Parcel") (the Fee Parcel and the Leasehold
Parcel are sometimes hereinafter collectively referred to as the "Real
Property") pursuant to the provisions of that certain Lease Agreement,
originally by and between Sam Fleischer, Esther L. Fleischer, Bate Braly, Janet
R. Braly, Robert L. Garrison and Gertrude L. Garrison, collectively being the
"Lessors" therein, and Sarasota Bank and Trust Company, as "Lessee" therein,
dated August 15, 1955, and recorded in Official Records Book 317, at Page 319,
of the Public Records of Sarasota County, Florida (the "Original Lease
Agreement"), as amended by that certain Modification of Lease, originally by and
between Sarasota Bank & Trust Company, as Executor of the Estate of Sam
Fleischer, Esther L. Fleischer, Bate Braly, Janet R. Braly, Robert L. Garrison,
and Gertrude L. Garrison, collectively being the "Lessors" therein, and Sarasota
Bank & Trust Company, as "Lessee" therein, dated January 1, 1968, and recorded
in Official Records Book 744, at Page 843, of the Public Records of Sarasota
County, Florida (the Original Lease Agreement, as modified by such Modification
to Lease, is hereinafter referred to as the "Ground Lease").
C. Certain improvements have been erected on the Real Property, including
the office building commonly known as "Ellis Building" located at 1605 Main
Street, Sarasota, Florida.
D. Seller desires to sell to Purchaser, and Purchaser desires to purchase
from Seller, the "Property" (as such term is hereinafter defined), each in
accordance with and subject to the terms and conditions set forth in this
Agreement.
THEREFORE, in consideration of the above Recitals, the mutual covenants and
agreements herein set forth and the benefits to be derived therefrom, and other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Purchaser and Seller agree as follows:
1. PURCHASE AND SALE. Subject to and in accordance with the terms and
conditions set forth in this Agreement, (a) Seller shall assign to Purchaser,
and Purchaser shall assume, Seller's leasehold interest under the Ground Lease
in and to the Leasehold Parcel, and (b) Purchaser shall purchase from Seller and
Seller shall sell to Purchaser, the Fee Parcel, together with: (i) all buildings
and improvements on the Real Property and owned by Seller and any and all of
Seller's rights, easements, licenses and privileges presently thereon or
appertaining thereto; (ii) Seller's right, title and interest in and
<PAGE>
to all agreements of lease other than the Ground Lease which affect the Property
or any part thereof (individually, a "Lease", and collectively, the "Leases");
(iii) the interest of Seller in all of the security deposits paid by tenants
under the Leases that are listed on EXHIBIT Q attached hereto and which are not
applied by Seller with the consent of Purchaser (such consent not to be
unreasonably withheld or delayed) in accordance with the terms of the Leases
and/or applicable law between the date of this Agreement and Closing (the
"Security Deposits"); (iv) all of the furniture, furnishings, fixtures,
equipment, maintenance vehicles, tools and other tangible personalty owned by
Seller, located on the Property and used in connection therewith that are listed
on EXHIBIT K attached hereto (the "Personal Property"); (v) all right, title and
interest of Seller under any and all of the maintenance, service, advertising,
equipment rental, license agreements and other like contracts and agreements
with respect to the ownership and operation of the Property that are listed on
EXHIBIT C attached hereto (the "Service Contracts"); and (vi) if and to the
extent transferable, all of Seller's right, title and interest in and to any
existing intangible property pertaining to the Property, but specifically
excluding any intangible property pertaining in any way to the rights associated
with the name "Equity" or the name of any entity containing the word "Equity" as
a part thereof; all to the extent applicable to the period from and after the
"Closing" (as such term is hereinafter defined) (items (i) through (vi) above,
together with the Fee Parcel and Seller's leasehold interest under the Ground
Lease in and to the Leasehold Parcel, are collectively referred to in this
Agreement as the "Property"). All of the foregoing expressly excludes: (A) all
property owned by tenants or other users or occupants of the Property except to
the extent that any Security Deposits are deemed to be "owned" by a tenant under
applicable law; (B) all rights with respect to any refund of taxes attributable
to the Property with respect to any period prior to the "Closing" (as
hereinafter defined); (C) all computers and computer-related equipment in the
management office of the Property; and (D) the right of reversion of the
"Lessors" under the Ground Lease in and to the improvements located on the
Leasehold Parcel.
2. PURCHASE PRICE. The purchase price to be paid by Purchaser to Seller
for the Property is Thirteen Million Eight Hundred Seventy-Five Thousand Dollars
($13,875,000.00) (the "Purchase Price"). The Purchase Price shall be paid as
follows:
A. Earnest Money.
-------------
(i) Prior to the date of this Agreement, Purchaser and Seller
entered into that certain letter of intent (the "Letter of
Intent") effective April 27, 1998. Purchaser, pursuant to
the Letter of Intent, deposited earnest money (the "Initial
Earnest Money") in the sum of Two Hundred Fifty Thousand
Dollars ($250,000.00) with Purchaser's counsel, Broad and
Cassel (the "Initial Escrowee"). Upon execution of this
Agreement by both Purchaser and Seller, this Section 2(A)(i)
shall serve as written notice to Initial Escrowee by Seller
and Purchaser to deposit the Initial Earnest Money with the
Tampa, Florida office of Rudnick & Wolfe ("Escrowee") at the
following address: Rudnick & Wolfe, 101 East Kennedy
Boulevard, Suite 2000, Tampa, Florida 33602, Attention: John
T. Diamandis, Esq. Upon execution of this Agreement by both
Purchaser and Seller, Seller shall deposit an additional Two
Hundred Fifty Thousand Dollars ($250,000.00) (the
"Additional Earnest Money") (the Initial Earnest Money and
the Additional Earnest Money, together with any interest
accrued thereon, and net of any investment costs, are
hereinafter collectively referred to as the "Earnest Money")
with Escrowee. To instruct Escrowee as to the retention,
investment and disposition of the Earnest Money, Escrowee,
Seller and Purchaser shall, concurrently with the execution
of this Agreement, execute a joint order
2
<PAGE>
escrow agreement (the "Joint Order Escrow Agreement") in the
form of EXHIBIT D attached hereto. Any and all interest
earned on the Earnest Money shall be reported to Purchaser's
federal tax identification number.
(ii) If the transaction closes in accordance with the terms of
this Agreement, at Closing, the Earnest Money shall be
delivered by Escrowee to Seller as part payment of the
Purchase Price. If the transaction fails to close due to a
default on the part of Purchaser, the Earnest Money shall be
delivered by Escrowee to Seller as liquidated and agreed
upon damages in accordance with Section 7(B) below. If the
transaction fails to close due to a default on the part of
Seller, the Earnest Money shall be delivered by Escrowee to
Purchaser, and Purchaser shall have the remedy provided for
in Section 7(A) below.
B. Cash at Closing. At Closing, Purchaser shall pay to Seller, by
wire transferred current federal funds, an amount equal to the Purchase
Price, minus the sum of the Earnest Money which Seller receives at Closing
from the Escrowee, and plus or minus, as the case may require, the closing
prorations and adjustments to be made pursuant to Section 4(C) below.
3. EVIDENCE OF TITLE
-----------------
A. Title Commitment. Seller has, prior to the date of this
Agreement, obtained and caused to be delivered to Purchaser: (i) title
commitment number 509826000MT, bearing an effective date of May 4, 1998
(the "Title Commitment"), in the amount of the Purchase Price, issued by
Rudnick & Wolfe, as agent for Chicago Title Insurance Company (the "Title
Insurer"), and (ii) copies of all documents set forth in Schedule B-Section
2 of the Title Commitment. At Closing, the Title Insurer shall deliver to
Purchaser a marked-up title commitment dated as of the "Closing Date"
(defined below) from the Title Insurer in the amount of the Purchase Price
reflecting the conveyance of the Property to Purchaser, subject only to
those exceptions to title which (a) are more fully described on attached
EXHIBIT B, (b) are disclosed in Schedule B of the Title Commitment, (c) are
disclosed by the Existing Survey (hereinafter defined), and (d) become
Permitted Exceptions pursuant to this Section 3 (collectively, the
"Permitted Exceptions").
B. Survey. Seller has, prior to the date of this Agreement,
delivered to Purchaser an existing survey of the Real Property prepared by
Smally, Wellford & Nalven, Inc. dated April 8, 1995 and last revised on
March 4, 1986 (the "Existing Survey"). Purchaser shall, within one (1) day
after the date of this Agreement, order a survey of the Real Property (the
"Survey"). Upon Purchaser's receipt of the Survey, Purchaser shall promptly
deliver a copy of the Survey to Seller and the Title Insurer.
C. Review of Title Commitment and Survey. Purchaser acknowledges
that it has, prior to the date of this Agreement, had an opportunity to
review the Title Commitment, the underlying documents disclosed thereby and
the Existing Survey. If the Survey discloses exceptions to title other than
the Permitted Exceptions, then Purchaser shall have until 5:00 p.m.
(Chicago, Illinois time) on the tenth (10th) day after the date of its
receipt of the Survey (but in no event later than the twenty-fifth (25th)
day after the date of this Agreement) within which to notify Seller of any
such exceptions to title to which Purchaser objects. If any additional
exceptions to title arise between the date of the Title Commitment, the
Survey and the Closing, Purchaser shall have five (5) days after its
receipt of notice of same within which to notify Seller of any such
exception to title to which Purchaser objects. Any such exceptions to title
not
3
<PAGE>
objected to by Purchaser as aforesaid shall become Permitted Exceptions. If
Purchaser objects to any such exceptions to title, Seller shall have until
Closing (but in any event at least fifteen [15] days after it receives
notice of Purchaser's objection(s)) to remove such exceptions to title,
which removal may be accomplished by waiver or endorsement by the Title
Insurer. If Seller fails to remove any such exceptions to title as
aforesaid, Purchaser may, as its sole and exclusive remedy, terminate this
Agreement and obtain a return of the Earnest Money. If Purchaser does not
elect to terminate this Agreement, Purchaser shall consummate the Closing
and accept title to the Property subject to all such exceptions to title
(in which event, all such exceptions to title shall be deemed "Permitted
Exceptions"). Notwithstanding anything in this Section 3(C) to the
contrary, Seller shall be obligated, at Closing, to cause the Title Insurer
to remove (by waiver or endorsement) any "Unpermitted Exceptions" (as
hereinafter defined) that are not Permitted Exceptions. For purposes of
this Agreement, the term "Unpermitted Exceptions" shall be defined to mean
mortgages and deeds of trust granted by Seller and mechanic's liens with
respect to work contracted for by Seller or its authorized agents, provided
that Seller has received written notice of such mechanic's lien prior to
Closing and the cost to remove such mechanic's liens as aforesaid does not
exceed Ten Thousand Dollars ($10,000.00) in the aggregate.
4. CLOSING.
-------
A. Closing Date. The "Closing" of the transaction contemplated by
this Agreement (that is, the payment of the Purchase Price, the transfer of
title to the Property, and the satisfaction of all other terms and
conditions of this Agreement) shall occur on the date (the "Closing Date")
which is forty-five (45) days after the date of this Agreement, with
Escrowee acting as closing escrowee at the Miami, Florida office of counsel
for Purchaser, Broad and Cassel, or at such other time and place as Seller
and Purchaser shall agree in writing. If the Closing Date above provided
for falls on a Saturday, Sunday or legal holiday, then the Closing Date
shall be the next business day.
B. Closing Documents.
-----------------
(i) Seller. At Closing, Seller shall deliver to Purchaser the
following:
(a) a special warranty deed (the "Deed") conveying the Fee
Parcel, subject to those Permitted Exceptions affecting
the Fee Parcel and in form attached hereto as Exhibit
R;
(b) a bill of sale (the "Bill of Sale") in the form
attached hereto as EXHIBIT J;
(c) a letter advising tenants under the Leases of the
change in ownership of the Property in the form of
EXHIBIT L attached hereto;
(d) a letter advising vendors/licensees under the Service
Contracts of the change in ownership of the Property in
the form of EXHIBIT M attached hereto;
(e) four (4) counterparts of an assignment and assumption
of the Leases and Security Deposits in the form of
EXHIBIT E attached hereto (the "Lease Assignment"),
executed by Seller;
4
<PAGE>
(f) four (4) counterparts of an assignment and assumption
of the Service Contracts in the form of EXHIBIT F
attached hereto (the "Service Contract Assignment"),
executed by Seller;
(g) an affidavit stating, under penalty of perjury,
Seller's U.S. taxpayer identification number and that
Seller is not a foreign person within the meaning of
Section 1445 of the Internal Revenue Code;
(h) four (4) counterparts of a closing statement (the
"Closing Statement") to be executed by Seller and
Purchaser, containing the "Closing Delinquency
Schedule" (as defined below) and setting forth the
prorations and adjustments to the Purchase Price as
required by Section 4(C) below, executed by Seller
(Seller shall deliver a preliminary draft of a closing
statement to Purchaser three days prior to the Closing
Date);
(i) all executed "Estoppel Certificates" (as hereinafter
defined) received by Seller as of the Closing Date;
(j) any "Seller Estoppel Certificates" (defined below) to
be delivered by Seller pursuant to Section 9 below;
(k) copies of those Leases for which either (1) Estoppel
Certificates were not received by Seller or Purchaser
prior to the Closing Date, or (2) Seller Estoppels were
not delivered by Seller at Closing, certified by Seller
to be true and correct (Purchaser hereby acknowledging
that, as more particularly provided in Section 9(E)
below, Seller's liability under such certifications
shall terminate on a date no later than the one hundred
eightieth (180th) day after the Closing Date);
(l) four (4) counterparts of a letter with respect to
Seller's delivery of information required under 29
C.F.R. (S)1910.1001(j)(2)(ii) and 29 C.F.R.
(S)1926.1101(n)(6) (the "OSHA Letter") in the form of
EXHIBIT O attached hereto, executed by Seller;
(m) one (1) counterpart of a recordable assignment and
assumption of Seller's leasehold interest under the
Ground Lease in the form of EXHIBIT V attached hereto
(the "Ground Lease Assignment"), executed by Seller;
and
(n) an update of the rent roll in the form of the rent roll
attached hereto as EXHIBIT N (as updated, the "Updated
Rent Roll") dated as of the Closing Date, certified by
Seller to be, to the Actual Knowledge of Seller (as
defined in Section 10(B) below), true and correct
(Purchaser hereby acknowledging that: (1) Seller shall
have no liability with respect to the information set
forth in such Updated Rent Roll to the extent that such
information is set forth in an Estoppel Certificate
received by Purchaser, and (2) as more particularly
provided in Section 10(C) below, Seller's
5
<PAGE>
liability under such certification shall terminate on a
date no later than the one hundred eightieth day after
the Closing Date).
(ii) Purchaser. Purchaser shall deliver or cause to be delivered
to Seller at Closing:
(a) the funds required pursuant to Section 2(B) above;
(b) four (4) counterparts of the Lease Assignment, executed
by Purchaser;
(c) four (4) counterparts of the Service Contract
Assignment, executed by Purchaser;
(d) four (4) counterparts of the Closing Statement,
executed by Purchaser;
(e) copies of any executed Estoppel Certificates received
by Purchaser from tenants as of the Closing Date, if
any;
(f) four (4) counterparts of the OSHA Letter, executed by
Purchaser; and
(g) one (1) counterpart of the Ground Lease Assignment,
executed by Purchaser.
C. Closing Prorations and Adjustments.
----------------------------------
(i) The following items are to be prorated or adjusted (as
appropriate) as of the Closing Date, it being understood
that for purposes of prorations and adjustments, Seller
shall be deemed the owner of the Property on the day prior
to the Closing Date and Purchaser shall be deemed the owner
of the Property on the Closing Date:
(a) real estate and personal property taxes and assessments
(initially on the basis of the most recent
ascertainable tax bill if the current bill or evidence
sufficient to calculate the amount of the taxes for the
period through Closing is not then available and, in
all events, subject to reproration as described in
Section 4(C)(iv) below);
(b) the "minimum" or "base" rent payable by tenants under
the Leases ("Base Rent"); provided, however, that rent
and all other sums which are due and payable to Seller
by any tenant but uncollected as of the Closing shall
not be adjusted, but Purchaser shall cause the rent and
other sums for the period prior to Closing to be
remitted to Seller if, as and when collected. At
Closing, Seller shall deliver to Purchaser a schedule
(the "Closing Delinquency Schedule") of all such past
due but uncollected rent and other sums owed by tenants
(the "Past Due Rents"). Purchaser shall include the
amount of the Past Due
6
<PAGE>
Rents in the first bills thereafter submitted to the
tenants in question after the Closing and shall
promptly provide Seller with copies of such bills upon
issuance, and shall continue to do so for six (6)
months thereafter. Purchaser shall promptly (that is,
no less than once per month) remit to Seller any such
Past Due Rents paid by tenants set forth on the Closing
Delinquency Schedule, but only if a deficiency in the
then current rent is not thereby created. To the extent
not set forth on the Closing Delinquency Schedule,
"Operating Expense Reimbursements" (as hereinafter
defined) shall be prorated in accordance with this
Section 4(C)(i)(b) and Sections 4(C)(ii), 4(C)(iii) and
4(C)(iv) below. Overage rent (if any), percentage rent
(if any) and reimbursement of real estate taxes
payable, common area maintenance, utility charges,
water and sewer charges, insurance and all other
charges to or contributions by tenants under the Leases
other than Base Rent (such costs and expenses being
collectively referred to herein as the "Operating
Expenses", and the amounts reimbursable by tenants
under the Leases with respect to such Operating
Expenses being referred to herein as the "Operating
Expense Reimbursements") shall be prorated as follows:
the amount of any Base Rent and Operating Expense
Reimbursements to be paid by any tenant shall be paid
in accordance with such tenant's Lease as now existing
(Purchaser hereby covenanting and agreeing not to
modify the Leases after Closing to change the date
and/or method for payment of such amounts with respect
to the period prior to Closing until after the
occurrence of the reprorations described in Sections
4(C)(iii) and 4(C)(iv) below) and Purchaser shall,
after Closing, promptly pay to Seller a prorata portion
of such Operating Expense Reimbursements, based upon
apportionment being made as of the Closing Date,
promptly after the date when such Operating Expense
Reimbursements are received from the tenant;
(c) with respect to tenant improvement costs and/or
allowances or leasing or brokerage commissions relating
to (1) the "New Leases" (as hereinafter defined) set
forth on EXHIBIT S attached hereto, and (2) any other
New Leases executed during the period between April 27,
1998 and Closing with the consent of Purchaser granted
(or deemed to be granted) in accordance with Section
11(L)(1) below, Seller and Purchaser agree that such
costs, allowances and commissions shall be prorated
over the initial term of any such New Lease with Seller
being responsible for a portion of such costs,
allowances and commissions based on the ratio of Base
Rent payments received by Seller through the Closing
Date to the total Base Rent payable over the initial
term of the particular New Lease and, in the event that
Seller has paid such costs, allowances and/or
commissions prior to Closing, Purchaser shall reimburse
Seller at Closing for the amount of any such costs,
allowances and/or commissions paid by Seller, based on
the above-described proration;
7
<PAGE>
(d) the amount of the Security Deposits held in cash, with
Purchaser receiving a credit at Closing against the
Purchase Price in the amount of such Security Deposits
held in cash by Seller as of the Closing Date (and
Seller shall, at no cost, expense or liability to
Seller, transfer to Purchaser at Closing, to the extent
transferable, any Security Deposit held by Seller as of
the Closing Date in the form of a letter of credit);
(e) water, sewer, electric, telephone and all other utility
and fuel charges, fees and use charges, fuel on hand
(at cost plus sales tax), and any deposits with utility
companies (to the extent possible, utility prorations
will be handled by meter readings on the Closing Date);
(f) amounts due and prepayments under the Service
Contracts;
(g) assignable license and permit fees;
(h) rental and other amounts paid or payable under the
Ground Lease; and
(i) other similar items of income and expenses of
operation.
(ii) Notwithstanding any other provision of this Section 4(C)
but subject to Sections 4(C)(iii) and 4(C)(iv) below,
Seller shall, upon Closing, be entitled to retain
Operating Expense Reimbursements paid by tenants under the
Leases as of the Closing.
(iii) As soon as practical after Closing, but in no event later
than April 30, 1999, Seller and Purchaser shall, with
respect to any such amounts prorated or adjusted at
Closing pursuant to Section 4(C)(i) above based on
estimates or formulae, as applicable (other than real
estate and personal property taxes and assessments, which
shall be reprorated in accordance with Section 4(C)(iv)
below), jointly determine and reapportion such amounts in
accordance with Section 4(C)(i) above upon determination
of the actual costs or expenses with respect thereto. In
the event that the amount credited to Purchaser by Seller
at Closing exceeds the amount of the credit that Purchaser
should have received had such actual amounts been
available at Closing, Purchaser shall promptly remit such
excess amount to Seller. In the event that the amount of
Operating Expense Reimbursements retained by Seller at
Closing is less than the amount of Operating Expense
Reimbursements to which Seller is entitled after
calculation of actual Operating Expenses under this
Section 4(C), Purchaser shall (x) to the extent such
amounts have already been collected by Purchaser from the
tenants, promptly remit such amounts to Seller, and (y) to
the extent such amounts have not yet been collected from
tenants, Purchaser shall promptly bill the tenants for
such amounts, promptly provide Seller with copies of such
bills upon issuance, diligently pursue collection thereof
and, promptly upon receipt thereof, pay such amounts to
Seller. In the event that: (1) the amount credited to
Seller by Purchaser at Closing exceeds the amount of the
credit that
8
<PAGE>
Seller should have received at Closing had the actual
amount of such Operating Expenses been available at
Closing; and/or (2) the amount of the Operating Expense
Reimbursements retained by Seller at Closing with respect
to such actual amount Operating Expenses exceeds the
amount of the Operating Expense Reimbursements that Seller
should have retained at Closing had such actual amounts
been available at Closing and a portion of such excess
amounts are refundable to tenants under any of the Leases,
Seller shall, at its option, either: (A) promptly remit
such excess amounts to the particular tenants entitled to
refund of such amounts, or (B) remit such excess amounts
to Purchaser and Purchaser shall be thereafter obligated
to promptly remit such portion to the particular tenants
in question (and Purchaser shall indemnify, defend and
hold Seller, its beneficiaries, their partners, and their
respective directors, officers, employees and agents, and
each of them, harmless from and against any losses,
claims, damages and liabilities [including, without
limitation, reasonable attorneys' fees and expenses
incurred in connection therewith] arising out of or
resulting from Purchaser's failure to remit such amounts
to the tenants in accordance with this Section 4(C)(iii)
and Section 4(C)(iv) below). In addition, in the event
that any of the Leases require that the tenants thereunder
receive a reconciliation (and bill, in the event that
tenant owes additional amounts under their Lease) with
respect to Operating Expense Reimbursements prior to May
1, 1999, then Seller shall, not less than twenty (20) days
prior to the date that such reconciliation (and bill, if
applicable) is to be delivered to the tenant under the
terms of the applicable Lease, provide Purchaser with the
necessary information to provide reconciliations (and
bills, if applicable) to such tenants with respect to the
period prior to Closing. Seller shall only be obligated to
provide such information with respect to those Leases set
forth in a written instrument received from Purchaser
within five (5) days from the date of this Agreement and
only if such leases require that such reconciliations be
provided prior to May 1, 1999.
(iv) Purchaser and Seller hereby agree to reprorate real estate
and personal property taxes (which were approximated at
Closing pursuant to Section 4(C)(i)(a) above based on the
most recent ascertainable tax bills) and the Operating
Expense Reimbursements received from tenants with respect
to such taxes upon issuance of the final real estate and
personal property tax bills for the tax year(s) in which
the Closing occurs. If, after such reproration, the amount
credited to Purchaser by Seller at Closing exceeds the
amount of the credit that Purchaser should have received
had such actual amounts been available at Closing,
Purchaser shall promptly remit such excess amount to
Seller. If, after such reproration: (y) the amount
credited to Seller by Purchaser at Closing with respect to
such taxes exceeds the amount of the credit that Seller
should have received at Closing had such actual amounts
been available at Closing; and/or (z) the amount of the
Operating Expense Reimbursements retained by Seller at
Closing with respect to such taxes exceed the amount of
the Operating Expense Reimbursements that Seller should
have retained at Closing with respect to such taxes had
the actual amount of such taxes been available at Closing,
then: (I) Seller shall promptly remit the portion of such
excess amounts that are attributable to real estate taxes
paid by
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Purchaser that are not reimbursable to Purchaser by
tenants under the Leases, and (II) if any portion of such
excess amounts are refundable to tenants under any of the
Leases, Seller shall, at its option, either: (a) promptly
remit such excess amounts to the particular tenants
entitled to refund of such amounts, or (b) remit such
excess amounts to Purchaser and Purchaser shall be
thereafter obligated to promptly remit such portion to the
particular tenants entitled thereto. Notwithstanding
anything in this Section 4(C)(iv) to the contrary, in the
event Purchaser, subsequent to Closing, commences a real
estate tax appeal for the tax year(s) attributable to the
year of Closing and such appeal results in a reduction in
the amount of real estate taxes payable for such tax
year(s), then upon the final ascertainment of such
reduction, Purchaser and Seller shall reprorate such real
estate taxes to account for such reduction in the manner
provided above in this Section 4(C)(iv); provided,
however, that nothing in this Section 4(C)(iv) shall
obligate Purchaser or Seller to commence any such appeal.
(v) If Seller has not received all Past Due Rents or other
amounts owed to it by tenants within sixty (60) days after
the Closing Date, Seller at its sole cost and expense,
shall be entitled at any time within the twelve (12) month
period after such sixty (60) day period (with respect to
Past Due Rents) or within the twelve (12) month period
after such other amounts are due (with respect to amounts
other than Past Due Rents), to commence such actions or
proceedings not affecting possession or enforcing
landlord's liens or resulting in termination of the Lease
in question as Seller shall desire to collect any such
Past Due Rents or other amounts, and Purchaser shall
cooperate with Seller in any such action.
(vi) For purposes of this Section 4(C), the amount of any
expense credited by one party to the other shall be deemed
an expense paid by that party. The terms and provisions of
this Section 4(C) shall survive Closing and the delivery
of the Deed.
D. Transaction Costs. Whether or not the Closing occurs: (A) Seller
shall be responsible for and pay (i) the minimum rate promulgated by the
State of Florida for the owner's title insurance policy (the "Base
Premium") to be issued to Purchaser at Closing in accordance with the
provisions of the marked-up title commitment described in Section 3(A)
above, (ii) the Florida documentary stamps (the "Transfer Taxes") owed in
connection with the Deed (and Seller and Purchaser shall timely execute and
deliver such forms and returns as are necessary in connection therewith),
(iii) one-half of Escrowee's standard escrow fees (the "Escrow Fees"), if
any, (iv) all recording charges for recording any releases or reconveyances
of Seller's existing mortgage financing, and (v) the fees and costs of its
attorneys and advisors; and (B) Purchaser shall be responsible for and pay
(i) any premiums, cost and other expenses charged by the Title Insurer in
connection with the issuance at Closing of an owner's title insurance
policy (including any and all endorsements) over and above the Base Premium
to be paid by Seller under sub-clause (A)(i) of this Section 4(D), (ii) the
cost of the Survey, (iii) one-half of the Escrow Fees, if any, (iv) all
recording charges other than charges for recording any releases or
reconveyances of Seller's existing mortgage financing, and (v) the fees and
costs of its attorneys and advisors.
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E. Possession. Upon Closing, Seller shall deliver to Purchaser
possession of the Property, subject to such matters as are permitted by or
pursuant to this Agreement.
5. CASUALTY LOSS AND CONDEMNATION. If, prior to Closing, the Property or
any part thereof shall be taken or condemned, a suit filed to take or condemn
all or a portion of the Property, or the Property or any portion thereof is
destroyed or damaged by fire or other casualty, Seller shall promptly so notify
Purchaser. In such event, provided that either: (i) the reasonable cost to
restore the Property due to such damage or destruction is greater than One
Million and No/100 Dollars ($1,000,000.00) (a "Material Casualty"), or (ii) any
material portion of the building located on the Property is designated to be or
is taken or condemned (a "Material Condemnation"), then Purchaser shall have the
option to terminate this Agreement by delivery of its written termination notice
to Seller within fifteen (15) days after Seller's delivery to Purchaser of its
notice of a Material Condemnation or the occurrence of a Material Casualty. If
(a) the aforementioned casualty is not a Material Casualty, (b) the
aforementioned taking or condemnation is not a Material Condemnation, or (c)
Purchaser does not elect to terminate this Agreement pursuant to the provisions
of the preceding sentence (time being of the essence with respect to any such
election), then Seller and Purchaser shall consummate the transaction
contemplated by this Agreement without abatement of the Purchase Price (except
that Purchaser shall receive a credit against the Purchase Price in an amount
equal to any deductible amount under Seller's casualty insurance payable with
respect to the Property) and Purchaser shall be entitled to approve the terms of
any casualty insurance settlement, such approval not to be unreasonably withheld
or delayed, and to receive at Closing the taking, condemnation or casualty
insurance proceeds (or an assignment of the right to such proceeds) (less any
amounts applied against costs incurred or income lost by Seller as a result of
such occurrence) and Seller shall, at Closing, execute and deliver to Purchaser
all customary proofs of loss, assignments of claims and other similar items. If
Purchaser elects to terminate this Agreement pursuant to the provisions of this
Section 5 and Purchaser is not in default under this Agreement, the Earnest
Money shall be returned to Purchaser by the Escrowee, in which event this
Agreement shall, without further action of the parties, become null and void and
neither party shall have any further rights or obligations under this Agreement;
provided, however, that the foregoing shall not limit Seller's recourse against
Purchaser under Sections 6 and 11(G) below and under the "Confidentiality
Agreement" (as hereinafter defined).
6. BROKERAGE. Seller, pursuant to a separate written agreement (the
"Broker Agreement"), is obligated to pay upon Closing (but not otherwise) a
brokerage commission to Cushman & Wakefield of Florida, Inc. ("Broker") for
services rendered in connection with the sale and purchase of the Property.
Seller shall indemnify and hold Purchaser harmless from and against any and all
claims of Broker related to Seller's agreement under the Broker Agreement to pay
Broker a commission in connection with the purchase and sale of the Property,
including, without limitation, reasonable attorneys' fees and expenses incurred
by Purchaser in connection with such claim. Purchaser represents and warrants
to Seller that Purchaser does not have any agreement with any broker or finder
in connection with the Property. Seller and Purchaser shall each indemnify and
hold the other harmless from and against any and all claims of all brokers and
finders (other than a claim by Broker against Seller of the type described in
the preceding sentence, which claim Seller shall be obligated to indemnify
Purchaser against in accordance with the preceding sentence) claiming by,
through or under the indemnifying party and in any way related to the sale and
purchase of the Property, this Agreement or otherwise, including, without
limitation, reasonable attorneys' fees and expenses incurred by the indemnified
party in connection with such claim.
7. DEFAULT AND REMEDIES.
A. Notwithstanding anything to the contrary contained in this
Agreement, if (i) Seller fails to perform in accordance with the terms of
this Agreement, (ii) Purchaser is not
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otherwise in default hereunder, and (iii) the Closing does not occur, then,
as Purchaser's sole and exclusive remedy hereunder and at Purchaser's
option, either (x) the Earnest Money shall be returned to Purchaser, in
which event this Agreement shall be null and void, and neither party shall
have any rights or obligations under this Agreement, or (y) upon notice to
Seller not less than ten (10) days after Purchaser becomes aware of such
failure, and provided an action is filed within thirty (30) days
thereafter, Purchaser may seek specific performance of this Agreement, but
not damages. Purchaser's failure to seek specific performance as aforesaid
shall constitute its election to proceed under clause (x) above.
B. If Purchaser fails to perform in accordance with the terms of this
Agreement, the Earnest Money may be retained by Seller as liquidated and
agreed upon damages and as Seller's sole and exclusive remedy with respect
thereto; provided, however, that the foregoing shall not limit Seller's
recourse against Purchaser under Section 6 above, Section 11(G) below and
under the Confidentiality Agreement. PURCHASER AND SELLER ACKNOWLEDGE AND
AGREE THAT (1) THE EARNEST MONEY IS A REASONABLE ESTIMATE OF AND BEARS A
REASONABLE RELATIONSHIP TO THE DAMAGES THAT WOULD BE SUFFERED AND COSTS
INCURRED BY SELLER AS A RESULT OF HAVING WITHDRAWN THE PROPERTY FROM SALE
AND THE FAILURE OF CLOSING TO OCCUR DUE TO A DEFAULT OF PURCHASER UNDER
THIS AGREEMENT; (2) THE ACTUAL DAMAGES SUFFERED AND COSTS INCURRED BY
SELLER AS A RESULT OF SUCH WITHDRAWAL AND FAILURE TO CLOSE DUE TO A DEFAULT
OF PURCHASER UNDER THIS AGREEMENT WOULD BE EXTREMELY DIFFICULT AND
IMPRACTICAL TO DETERMINE; (3) PURCHASER SEEKS TO LIMIT ITS LIABILITY UNDER
THIS AGREEMENT TO THE AMOUNT OF THE EARNEST MONEY IN THE EVENT THIS
AGREEMENT IS TERMINATED AND THE TRANSACTION CONTEMPLATED BY THIS AGREEMENT
DOES NOT CLOSE DUE TO A DEFAULT OF PURCHASER UNDER THIS AGREEMENT; AND (4)
THE EARNEST MONEY SHALL BE AND CONSTITUTE VALID LIQUIDATED DAMAGES.
PURCHASER INITIALS: SELLER INITIALS:
__________________ ___________________
C. After Closing, Seller and Purchaser shall, subject to the terms
and conditions of this Agreement, have such rights and remedies as are
available at law or in equity, except that neither Seller nor Purchaser
shall be entitled to recover from the other consequential or special
damages.
8. CONDITIONS PRECEDENT
A. Subject to Section 11(G) below and the provisions of that certain
confidentiality letter agreement dated February 25, 1998 from Cushman &
Wakefield of Florida Inc., on behalf of Seller, to Purchaser, as amended by
that certain modification letter agreement attached to and made a part of
the Letter of Intent (such letter agreement, as so amended, is herein
called the "Confidentiality Agreement"), Purchaser acknowledges that it
has, prior to the date hereof, had an opportunity to inspect the Property,
review the Leases, the Service Contracts, all "Disclosures" (as hereinafter
defined) provided by Seller and make such other inquiries and
investigations and obtain such reports and analyses (except for a third
party Phase I environmental report and structural engineering report
(collectively, the "Reports") as provided below) it deemed adequate
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<PAGE>
in connection with its decision to purchase the Property, and, as a result
thereof, Purchaser agrees that, except as specifically set forth in this
Agreement, it shall purchase the Property in its "AS IS, WHERE IS"
condition, subject to ordinary wear and tear and as more particularly
provided in Section 11(H) below. Subject to Section 11(G) below and the
Confidentiality Agreement, Purchaser shall continue to have reasonable
access to the Property in order to have the Reports prepared and to prepare
to acquire and take over operation of the Property upon Closing.
Notwithstanding anything herein to the contrary, Seller acknowledges that
the Reports are for informational purposes only and that any matters
disclosed by the Reports or otherwise discovered during Seller's limited
inspection of the Property as provided in the preceding sentence shall not
be subject to objection by Purchaser or otherwise a condition to Closing or
Purchaser's obligations hereunder, unless expressly provided to the
contrary elsewhere in this Agreement.
B. Ground Lessor Estoppel Certificates.
1. Seller shall, within five (5) days after the date of this
Agreement, send ground lessor estoppel certificates (individually, a
"Ground Lessor Estoppel Certificate" and collectively, the "Ground
Lessor Estoppel Certificates") to the following representatives of the
lessors under the Ground Lease (collectively hereinafter referred to
as the "Ground Lessors"): (i) Wayne Derr of NationsBank N.A., who
represents (a) NationsBank N.A., as trustee under the Sam Fleischer
Trust Agreement dated October 21, 1994, and (b) Mrs. Esther Fleischer
Van Tuin, (together the parties identified in clauses (a) and (b) hold
a one-third interest as lessor under the Ground Lease), (ii) Ken
Henderson, who represents the Garrison Trust (holder of a one-third
interest as lessor under the Ground Lease), and (iii) David Band, who
represents Ann Meade Braly, both individually and as trustee under the
Braly Trust (together, holders of a one-third interest as lessor under
the Ground Lease). The Ground Lessor Estoppel Certificates sent to
such parties by Seller shall be in the form of EXHIBIT W attached
hereto (the "Form Ground Lessor Estoppel Certificate"). It shall be a
condition to Seller's obligation to sell the Property pursuant to this
Agreement that Seller obtain (and provide copies to Purchaser at
Closing) Ground Lessor Estoppel Certificates executed by each of the
Ground Lessors.
2. Seller shall use reasonable efforts prior to Closing to
obtain Ground Lessor Estoppel Certificates from all Ground Lessors (it
being understood that such efforts shall in no way include Seller
incurring any additional liabilities or expending any sum of money
[other than fees of its counsel, if any, and the cost of any faxing,
postage, messenger services and overnight courier services]). In the
event that Seller is unable to obtain the Ground Lessor Estoppel
Certificates by the Closing, Seller may either (a) consummate the
Closing (and deliver copies of any Ground Lessor Estoppel Certificates
to Purchaser at Closing), or (b) terminate this Agreement by giving
written notice thereof to Purchaser, at which time this Agreement
shall be null and void, the Escrowee shall promptly return the Earnest
Money to Purchaser and thereafter neither Seller nor Purchaser shall
have any further rights or obligations under this Agreement, provided,
however, that the foregoing shall not limit Seller's recourse against
Purchaser under Section 6 above and Section 11(G) below and under the
Confidentiality Agreement).
9. ESTOPPEL CERTIFICATES.
A. Seller shall, within ten (10) days after the date of this
Agreement, send estoppel certificates (individually, an "Estoppel
Certificate" and collectively, the "Estoppel Certificates")
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to each tenant occupying space at the Property as of the date of this
Agreement. The Estoppel Certificates sent to tenants by Seller shall be in
the form of EXHIBIT G attached hereto (the "Form Tenant Estoppel
Certificate").
B. It shall be a condition precedent to Purchaser's obligation to
purchase the Property pursuant to this Agreement that Seller provide to
Purchaser, at Closing, Estoppel Certificates, dated as of a date after the
date of this Agreement, executed by tenants occupying not less than
seventy-five percent (75%) of the net rentable square footage of space at
the Property (exclusive of space currently occupied by Seller or "EOPMC"
[defined below] as a leasing and management office) as of the Closing Date,
specifically including within such seventy-five percent (75%) the
"Designated Tenants" (as hereinafter defined) (collectively, the "Required
Tenants"). For purposes of this Agreement, the term "Designated Tenants"
shall mean the tenants set forth on EXHIBIT T attached hereto and the term
"Designated Tenant" shall mean any one of such Designated Tenants. The
Estoppel Certificates executed by tenants shall be in substantially the
form of the Form Tenant Estoppel Certificate, except that an Estoppel
Certificate shall be deemed an acceptable Estoppel Certificate for purposes
of this Section 9 if paragraph 14 of the Form Tenant Estoppel Certificate
pertaining to Purchaser's first mortgage lender is stricken or deleted
and/or if it contains the qualification by the tenant of any statement as
being to the best of its knowledge or as being subject to any similar
qualification (the aforesaid acceptable Estoppel Certificates to be
delivered are collectively referred to as the "Required Estoppel
Certificates"). Purchaser acknowledges that, as noted above, the space
occupied by Equity Office Properties Management Corp., a Delaware
corporation ("EOPMC"), Seller's on-site manager, shall not be included in
the seventy-five percent (75%) described above, as EOPMC will vacate the
Property, effective as of Closing.
C. Seller shall use reasonable efforts prior to Closing to obtain
Estoppel Certificates from all tenants other than EOPMC (it being
understood that such efforts shall in no way include Seller incurring any
additional liabilities or expending any sum of money [other than fees of
its counsel, if any, and the cost of any faxing, postage, messenger
services and overnight courier services]). In the event that Seller is
unable to provide the Required Estoppel Certificates to Purchaser at the
Closing, Seller shall be obligated to execute and deliver to Purchaser
certificates (individually, a "Seller Estoppel Certificate", and,
collectively, the "Seller Estoppel Certificates") substantially in the same
form as the certificate attached hereto as EXHIBIT U (the "Form Seller
Estoppel Certificate") covering the Designated Tenants with respect to whom
have not executed and delivered Estoppel Certificates, provided that
Purchaser shall not be required to accept such Seller Estoppel Certificate
with respect to such Designated Tenants (and, in the event that Purchaser
does not accept such Seller Estoppel Certificates, this Agreement shall be
null and void, the Escrowee shall promptly return the Earnest Money to
Purchaser and thereafter neither Seller nor Purchaser shall have any
further rights or obligations under this Agreement, provided, however, that
the foregoing shall not limit Seller's recourse against Purchaser under
Section 6 above and Section 11(G) below and under the Confidentiality
Agreement). In the event that Seller is unable to provide Required
Estoppel Certificates to Purchaser at Closing with respect to any of the
Required Tenants other than the Designated Tenants, Seller shall be
obligated to execute and deliver to Purchaser (and Purchaser shall be
obligated to accept) Seller Estoppel Certificates covering the particular
tenants necessary so that Purchaser shall receive, at Closing, Required
Estoppel Certificates and Seller Estoppel Certificates with respect to the
Required Tenants, provided that Seller shall have the option to choose the
particular tenants with respect to whom Seller Estoppel Certificates shall
be delivered. In the event that Seller deliver such Seller Estoppel
Certificates, Seller shall be deemed to have represented and warranted to
the "Actual Knowledge of Seller" (as hereinafter defined) each item of
information contained in any such Seller Estoppel Certificate delivered to
Purchaser as to each Lease covered thereby, which
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representation and warranty as to each such item of information shall
survive for a period terminating on the earlier of (i) one hundred eighty
(180) days from the Closing Date, or (ii) the date on which Purchaser has
received an executed Required Estoppel Certificate signed by the tenant
under the Lease in question. Notice of any claim as to a breach of any
representations or warranties made in a Seller Estoppel Certificate must be
made to Seller prior to expiration of the period described in the preceding
sentence or it shall be deemed to be a waiver of the right to assert such
claim.
D. Should Seller be required to provide to Purchaser at Closing
Seller Estoppel Certificates and/or certified copies of Leases in
accordance with Section 4(B)(i)(k) above, Seller may, but shall not be
obligated to, provide to Purchaser after Closing additional Estoppel
Certificates received by Seller after Closing in substitution of any of the
aforesaid Seller Estoppel Certificates and/or certified copies of Leases.
E. In the event that Seller delivers certified copies of Leases in
accordance with Section 4(B)(i)(k) above, Seller's liability under such
certifications shall survive for a period terminating on the earlier of (1)
one hundred eighty (180) days from the Closing Date, and (2) the date on
which an executed Estoppel Certificate signed by the tenant under the Lease
in question is received by Purchaser.
F. If any Estoppel Certificates or Seller Estoppel Certificates
contain statements or allegations that a default or potential default
exists on the part of Seller under the Lease in question and (i) the
existence or the substance of such allegations or statements were contained
in any "Disclosures" (as defined in Section 11(H) below) prior to the date
of this Agreement, or (ii) prior to the date of this Agreement, Purchaser
otherwise obtained actual knowledge of facts revealing the substance of
such statements or allegations, or (iii) Seller otherwise disclosed in
writing the existence or the substance of such allegations or statements
prior to the date of this Agreement, or (iv) Purchaser elects that Closing
occur notwithstanding the existence of such default or potential default,
then such Estoppel Certificates and Seller Estoppel Certificates shall be
deemed acceptable for purposes of this Section 9, notwithstanding the
existence of such allegations or statements and Seller shall have no
liability to Purchaser hereunder with respect to the existence of such
allegations, statements or information. In addition, in the event that
such a default by Seller does actually exist, such default is not included
within the items set forth in subclauses (i), (ii) or (iii) of the
preceding sentence and such default is reasonably susceptible to cure by
Seller prior to Closing, Seller shall cure such default.
10. SELLER'S REPRESENTATIONS AND WARRANTIES
A. Seller represents and warrants to Purchaser the following:
(i) As of the date of this Agreement, to the "Actual Knowledge
of Seller" (as hereinafter defined), except as set forth on
EXHIBIT H attached hereto, Seller has received no written
notice from any governmental authority of any material
violation of any, state or federal law, rule or regulation
concerning the Property or any part thereof which has not
been cured prior to the date of this Agreement; provided,
however, that Seller makes no representation or warranty
with respect to (A) the information or matters disclosed in
the items set forth in EXHIBIT P attached hereto, and (B)
the Property's compliance with the American with
Disabilities Act.
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(ii) The list attached hereto as EXHIBIT C lists all of the
Service Contracts as of the date of this Agreement, the
service provided thereunder, the vendor under each Service
Contract and, if such Service Contract is written, the date
of such Service Contract.
(iii) Except as set forth on EXHIBIT I attached hereto, as of
the date of this Agreement, Seller has received no written
notice of any pending litigation with respect to the
Property which would affect the Property after Closing.
(iv) Prior to the date of this Agreement, Seller has calculated
the reconciliation of Operating Expenses and Operating
Expense Reimbursements for calendar year 1997 and has
billed the tenants for any remaining amounts owed to Seller
as a result of such reconciliation. In those instances
where a refund is owed to a tenant, Seller has either
refunded such amount to the tenant in question, offset such
refund against amounts owed to Seller by the tenant or
offset such refund against present and/or future amounts of
Base Rent or Operating Expense Reimbursements to be paid by
the tenant(s).
(v) To the Actual Knowledge of Seller and with the exception of
any leasing commissions owed in connection with the New
Leases set forth on EXHIBIT S and any other New Leases
executed after the date of this Agreement, there are no
leasing commissions due and payable in connection with any
of the Leases.
B. When used in this Agreement, the term "Actual Knowledge of Seller"
shall mean and be limited to the actual (and not imputed, implied or
constructive) current knowledge of Alissa Schneider, Vice President-
Dispositions of Equity Office Properties Trust, a Maryland real estate
investment trust, and Mark Scully, Regional Senior Vice President of EOPMC.
Notwithstanding anything herein to the contrary, neither Alissa Schneider
nor Mark Scully shall have any personal liability or liability whatsoever
with respect to any matters set forth in this Agreement or any of Seller's
representations and/or warranties herein being or becoming untrue,
inaccurate or incomplete in any respect (it being understood that, subject
to the provisions of this Agreement, Seller's liability under this
Agreement is not limited by the limitation on personal liability of such
individuals).
C. The representations and warranties set forth in this Section 10
and the certifications made pursuant to the Updated Rent Roll shall,
subject to Section 9(F) and Section 10(F), be deemed to be remade (or made
in the case of the Updated Rent Roll) as of Closing and shall survive the
Closing and the delivery of the Deed for a period of one hundred eighty
(180) days from the Closing Date. Notice of any claim as to a breach of
any such representations, warranties or certifications must be made to
Seller prior to the expiration of such one hundred eighty (180) day period
or it shall be deemed a waiver of the right to assert such claim.
D. Seller does not represent and warrant that any particular Service
Contract will be in force or effect as of the Closing or that tenants under
Leases or the parties to the Service Contracts will not be in default under
their respective Leases or Service Contracts, and neither the existence of
any default by any tenant under its Lease nor the default of any party
under any
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<PAGE>
Service Contract shall affect the obligations of Purchaser hereunder;
provided, however, the foregoing shall not affect the conditions contained
in Section 9 above.
E. As and to the extent that Purchaser or its representatives review
any Disclosures prior to the date of this Agreement and such documents or
materials contain information inconsistent with or different from the
representations and warranties set forth in Section 10(A) above, or prior
to the date of this Agreement Purchaser otherwise obtains actual knowledge
of facts or Seller otherwise discloses in writing to Purchaser facts that
are inconsistent with or different from the representations and warranties
made in Section 10(A), then as of the date of this Agreement such
representations and warranties shall be deemed modified to conform them to
the information set forth in such documents and materials or to such other
facts.
F. As and to the extent that (i) Purchaser obtains actual knowledge
of facts, or (ii) any Estoppel Certificates, Seller Estoppel Certificates,
Ground Lessor Estoppel Certificates or other documents with respect to
Leases, the Ground Lease, matters addressed by Section 10(A) and/or the
Updated Rent Roll contain information or facts that are inconsistent with
or different from the representations and warranties made in Section 10(A)
or the certifications made at Closing in the Updated Rent Roll, are
received by Purchaser or received by Seller and delivered to Purchaser
prior to the Closing, and Purchaser elects to proceed to Closing and the
Closing occurs, then the representations and warranties in Section 10(A)
and/or the certifications made at Closing in the Updated Rent Roll shall be
deemed to be modified and/or superseded by such certificates or other
documents (and, in such event, Seller shall no longer have any liability
hereunder with respect to the portion of the representation, warranty or
certification superseded herein, as applicable); provided, however, the
foregoing shall not affect the conditions contained in Section 9 above.
11. MISCELLANEOUS.
A. All understandings and agreements heretofore had between Seller
and Purchaser with respect to the Property are merged in this Agreement,
which alone fully and completely expresses the agreement of the parties.
Purchaser further acknowledges that, except as expressly provided in this
Agreement, neither Seller nor any agent or representative of Seller has
made, and Seller is not liable for or bound in any manner by, any express
or implied warranties, guaranties, promises, statements, inducements,
representations or information pertaining to the Property.
B. Except for an assignment to a "Permitted Assignee" (as hereinafter
defined), neither this Agreement nor any interest hereunder shall be
assigned or transferred by Purchaser without the written consent of Seller,
which consent may be withheld in the sole and absolute discretion of
Seller. For purposes of this Agreement, the term "Permitted Assignee" shall
be defined to mean either: (i) a partnership, corporation or limited
liability company affiliated with Tricony Florida Corporation or in which
Tricony Florida Corporation and/or Edward Torres is a member, partner or
shareholder, as applicable, or (ii) a partnership, corporation or limited
liability company in which Edward Torres is a controlling shareholder of
the entity (in the case of a corporation), of the general partner (in the
case of a limited partnership), or of the managing member (in the case of a
limited liability company). Upon an assignment to a Permitted Assignee
such Permitted Assignee shall execute and deliver an agreement to Seller in
which such Permitted Assignee assumes all of the obligations of Purchaser
under this Agreement. Upon an assignment of this Agreement to a Permitted
Assignee: (1) Purchaser shall not be relieved of any subsequently accruing
liability under this Agreement, and (2) as used in this Agreement, the
"Purchaser" shall be deemed to include such Permitted Assignee. Seller may
assign or otherwise transfer its interest under this Agreement. As used in
this Agreement, the term "Seller" shall be
17
<PAGE>
deemed to include any assignee or other transferee of any Seller. Upon any
such transfer by a Seller, such Seller shall be relieved of any
subsequently accruing liability under this Agreement. Subject to the
foregoing, this Agreement shall inure to the benefit of and shall be
binding upon Seller and Purchaser and their respective successors and
assigns.
C. This Agreement shall not be modified or amended except in a
written document signed by Seller and Purchaser.
D. Time is of the essence of this Agreement.
E. This Agreement shall be governed and interpreted in accordance
with the laws of the State of Florida.
F. All notices, requests, demands or other communications required or
permitted under this Agreement shall be in writing and delivered (i)
personally, (ii) by certified mail, return receipt requested, postage
prepaid, (iii) by overnight courier (such as Federal Express), or (iv) by
facsimile transmission (with a copy sent via (i), (ii) or (iii)), addressed
as follows:
1. If to Seller:
c/o Equity Office Properties Management Corp.
Two North Riverside Plaza
Suite 2200
Chicago, Illinois 60606
Telephone: (312) 466-3595
Facsimile: (312) 559-5051
Attention: Alissa Schneider
With a copy to:
Rosenberg & Liebentritt, P.C.
Suite 1600
Two North Riverside Plaza
Chicago, Illinois 60606
Telephone: (312) 466-3950
Facsimile: (312) 454-0335
Attention: Mark A. Trager
18
<PAGE>
2. If to Purchaser:
Tricony Florida Corporation
313-1/2 Worth Avenue
Suite 1-B
Palm Beach, Florida 33480
Telephone: (561) 832-7088
Facsimile: (561) 832-7551
Attention: Edward Torres
With a copy to:
Broad and Cassel
201 South Biscayne Blvd.
Miami, Florida 33131
Telephone: (305) 373-9420
Facsimile: (305) 373-9443
Attention: Marwin S. Cassel
All notices given in accordance with the terms hereof shall be deemed
received (1) when delivered, if personally delivered, (2) forty-eight (48)
hours after posting, if sent by certified mail, return receipt requested,
postage prepaid, (3) the next business day after deposit with the courier
company, if sent by overnight courier, and (4) on the day sent, if sent by
facsimile transmission prior to the close of the recipient's business day.
Either party hereto may change the address for receiving notices, requests,
demands or other communication by notice sent in accordance with the terms
of this Section 11(F).
G. Purchaser's right of inspection pursuant to Section 8(A) above
shall be subject to the rights of tenants under the Leases and other
occupants and users of the Property. No inspection shall be undertaken
without at least forty-eight (48) hours prior notice to Seller, or EOPMC,
on behalf of Seller. Seller shall have the right to be present at any or
all inspections. Seller's designated representative for such inspections
of the Property is Alissa Schneider of EOPMC (telephone (312)/466-3595;
facsimile 312/559-5051). Neither Purchaser nor its agents or
representatives shall contact any tenants without the prior consent of
Seller. No inspection shall involve the taking of samples or other
physically invasive procedures without the prior consent of Seller.
Notwithstanding anything to the contrary contained in this Agreement,
Purchaser shall indemnify and hold Seller and its employees and agents, and
each of them, harmless from and against any and all losses, claims, damages
and liabilities (including, without limitation, reasonable attorneys' fees
incurred in connection therewith) arising out of or resulting from
Purchaser's exercise of its rights of inspection as provided for in Section
8(A) above. The provisions of this Section 11(G) shall survive the Closing
or other termination of this Agreement.
H. Acknowledging the prior use of the Property and Purchaser's
opportunity to inspect the Property and except as specifically provided in
this Agreement, Purchaser agrees to take the Property "as is" with all
faults and conditions thereon. Any information, reports, statements,
documents or records, including, without limitation, the items set forth in
EXHIBIT P (collectively, the "Disclosures") provided or made to Purchaser
or its
19
<PAGE>
constituents by Seller, its agents, employees, contractors or
representatives, concerning the Property shall not be representations or
warranties. Purchaser shall not rely on such Disclosures, but rather,
Purchaser shall rely only on its own inspection of the Property. PURCHASER
ACKNOWLEDGES AND AGREES THAT, EXCEPT AS EXPRESSLY PROVIDED IN THIS
AGREEMENT, NEITHER SELLER NOR ITS AGENTS, EMPLOYEES, CONTRACTORS OR
REPRESENTATIVE HAS MADE, AND NONE OF THEM MAKES AND EACH SPECIFICALLY
DISCLAIMS ANY STATEMENTS, REPRESENTATIONS, WARRANTIES, PROMISES, COVENANTS,
AGREEMENTS OR GUARANTIES OF ANY KIND OR CHARACTER WHATSOEVER, WHETHER
EXPRESS OR IMPLIED, ORAL OR WRITTEN, PAST, PRESENT OR FUTURE, OF, AS TO,
CONCERNING OR WITH RESPECT TO (A) THE NATURE, QUALITY OR CONDITION OF THE
PROPERTY, INCLUDING, WITHOUT LIMITATION, THE WATER, SOIL AND GEOLOGY, (B)
THE INCOME HERETOFORE DERIVED OR TO BE DERIVED FROM THE PROPERTY, (C) THE
SUITABILITY OF THE PROPERTY FOR ANY AND ALL ACTIVITIES AND USES WHICH
PURCHASER MAY CONDUCT THEREON, (D) THE COMPLIANCE OF OR BY THE PROPERTY OR
ITS OPERATION WITH ANY LAWS, RULES, ORDINANCES OR REGULATIONS OF ANY
APPLICABLE GOVERNMENTAL AUTHORITY OR BODY, (E) THE HABITABILITY,
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OF THE PROPERTY, OR (F)
ANY OTHER MATTER WITH RESPECT TO THE PROPERTY, AND SPECIFICALLY DISCLAIM
ANY REPRESENTATIONS REGARDING TERMITES OR WASTES, AS DEFINED BY THE U.S.
ENVIRONMENTAL PROTECTION AGENCY REGULATIONS AT 40 C.F.R., OR ANY HAZARDOUS
SUBSTANCE, AS DEFINED BY THE COMPREHENSIVE ENVIRONMENTAL RESPONSE
COMPENSATION AND LIABILITY ACT OF 1980 ("CERCLA"), AS AMENDED, AND
REGULATIONS PROMULGATED THEREUNDER.
Purchaser, its successors and assigns, hereby waive, release and agree
not to make any claim or bring any cost recovery action or claim for
contribution, indemnity or other action or claim against Seller or its
affiliates, directors, officers, employees, agents, attorneys, or assigns
(collectively, "Seller and its Affiliates") (a) under any federal, state,
or local environmental or health and safety law or regulation, including
CERCLA or any state equivalent, or any similar law now existing or
hereafter enacted, (b) with respect to, in connection with or resulting
from any discharge, disposal, release, or escape of any chemical, or any
hazardous or toxic material whatsoever, on, at, to, or from the Property;
or (c) any environmental conditions whatsoever on, under, or in the
vicinity of the Property.
I. In any lawsuit or other proceeding initiated by Purchaser under or
with respect to this Agreement, Purchaser waives any right it may have to
trial by jury.
J. Purchaser acknowledges that all information with respect to the
Property furnished or to be furnished to Purchaser is, has been and will be
so furnished on the condition that Purchaser maintain the confidentiality
thereof. Accordingly, Purchaser shall, and shall cause its directors,
officers and other personnel and representatives to, hold in strict
confidence, and not disclose to any other party without the prior written
consent of Seller and unless the Closing occurs: (i) any of the information
with respect to the Property delivered to Purchaser by Seller or any of its
agents, representatives or employees, or (ii) the existence of this
Agreement or any term or condition thereof, or (iii) the results of any
inspections or studies undertaken in connection herewith. In addition,
neither Purchaser nor Purchaser's directors, officers and other personnel
and representatives shall solicit offers to purchase the Property to any
other party without the prior written consent of Seller and unless the
Closing occurs. Notwithstanding the above,
20
<PAGE>
Purchaser may disclose such information to individuals or entities
necessary for Purchaser to consummate the transaction contemplated herein
(such as attorneys, lenders, engineers, prospective management companies,
environmental consultants, accountants and tax advisors) and as required by
law. Purchaser shall require that any parties to whom the existence of this
Agreement or any information with respect to the Property is disclosed
execute a confidentiality agreement wherein the party agrees not to
disclose the existence of this Agreement or information with respect to the
Property to anyone. In the event the Closing does not occur and this
Agreement is terminated, Purchaser shall, upon written request by Seller,
promptly return to Seller all copies of all such information without
retaining any copy thereof or extract therefrom.
K. If for any reason Purchaser does not consummate the Closing, then
Purchaser shall, upon Seller's request, assign and transfer to Seller all
of its right, title and interest in and to any and all studies, reports,
surveys and other information, data and/or documents relating to the
Property or any part thereof prepared by or at the request of Purchaser,
its employees and agents, and shall deliver to Seller copies of all of the
foregoing.
L. Seller and Purchaser further agree as follows:
1. From and after the date of the Letter of Intent through the
Closing, Seller has delivered or shall deliver, as applicable, for
Purchaser's review (a "New Lease Notice"), a copy of any proposed new
Lease, or any modification, amendment, restatement or renewal of any
existing Lease (individually, a "New Lease" and collectively, "New
Leases") together with copies of any information submitted by the
prospective tenant to Seller with respect to such New Lease. In
addition, Seller shall also submit to Purchaser for Purchaser's review
a summary of any leasing or brokerage commissions payable in
connection with such New Lease and, if a written agreement exists
between Seller and the leasing broker entitled to be paid a commission
in connection with such New Lease and Seller has a copy of same, a
copy of such written agreement. During the period between the date of
this Agreement and Closing, Purchaser shall have the right to approve
or disapprove of any New Lease and any related costs that would be
incurred by the landlord under such New Lease, such as
leasing/brokerage commissions, rent abatements, construction or
buildout costs and construction allowances, by responding in writing
to Seller's New Lease Notice within five (5) days after Purchaser's
receipt of the New Lease Notice. If Purchaser fails to approve or
disapprove of such New Lease within such five (5) day period,
Purchaser shall be deemed to have conclusively approved of such New
Lease and all such related costs.
2. All tenant improvement costs and/or allowances and leasing
commissions relating to (a) New Leases entered into by Seller during
the period between April 27, 1998 and the date of this Agreement, and
(b) New Leases entered into by Seller after the date of this Agreement
which Purchaser approves (or is deemed to approve) in accordance with
Section 11(L)(1) above, shall be prorated in accordance with Section
4(C)(i)(c) above. In addition, should the timing and scope of work to
be performed by the lessor under such New Leases require Seller to
enter into contracts with contractors or other parties prior to
Closing in order to comply with the lessor's obligations under such
New Leases, Seller shall submit the proposed contract with such
contractor or other parties to Purchaser for its approval (not to be
unreasonably withheld). If Purchaser fails to approve or disapprove
of such contract within five (5) days after its receipt of same,
Purchaser shall be deemed to have conclusively approved of such
contract. If such contract results in work for which the provider or
subcontractor thereunder may obtain a lien against the Property if
such work is not paid for, then the "Permitted Exceptions"
21
<PAGE>
shall be deemed to include any potential liens and related notices of
commencement as a result thereof.
M. Seller and Purchaser hereby designate Escrowee to act as and
perform the duties and obligations of the "reporting person" with respect
to the transaction contemplated by this Agreement for purposes of 26 C.F.R.
Section 1.6045-4(e)(5) relating to the requirements for information
reporting on real estate transaction closed on or after January 1, 1991.
In this regard, Seller and Purchaser each agree to execute at Closing, and
to cause the Escrowee to execute at Closing, a Designation Agreement,
designating Escrowee as the reporting person with respect to the
transaction contemplated by this Agreement.
N. This Agreement may be executed in two or more counterparts, each
of which shall be deemed to be an original and all of which taken together
shall constitute one and the same instrument.
O. Seller and Purchaser acknowledge and agree that neither this
Agreement nor a memorandum thereof shall be recorded against the Property.
P. Purchaser acknowledges and agrees that any recovery against Seller
that Purchaser may be entitled to as a result of any claim, demand or cause
of action that Purchaser may have against Seller with respect to this
Agreement and the transactions contemplated herein shall only be
recoverable against Seller in an amount not in excess of One Million
Dollars ($1,000,000.00).
Q. In the event of a conflict between the terms and provisions of the
Confidentiality Agreement and this Agreement, the terms and provisions of
this Agreement shall control.
R. Except as specifically provided for herein, the representations,
warranties, covenants and agreements of Seller set forth in this Agreement
shall not survive the Closing.
S. Except as specifically provided herein, no third parties shall
have the benefit of any of the provisions of this Agreement, nor is this
Agreement made with the intent that any person or entity other than Seller
and Purchaser shall rely hereon.
T. Pursuant to Section 404.056(6), Florida Statutes (1997), the
following notification regarding radon gas is hereby made, and all parties
executing this Agreement acknowledge receipt of this notification:
RADON GAS: "RADON IS A NATURALLY OCCURRING
RADIOACTIVE GAS THAT, WHEN IT HAS ACCUMULATED IN
A BUILDING IN SUFFICIENT QUANTITIES, MAY PRESENT
HEALTH RISKS TO PERSONS WHO ARE EXPOSED TO IT OVER
TIME. LEVELS OF RADON THAT EXCEED FEDERAL AND STATE
GUIDELINES HAVE BEEN FOUND IN BUILDINGS IN FLORIDA.
ADDITIONAL INFORMATION REGARDING RADON AND RADON
TESTING MAY BE OBTAINED FROM YOUR COUNTY HEALTH
DEPARTMENT."
22
<PAGE>
U. Seller is currently utilizing the "MRI" brand of accounting
software at the Property to account for activities at the Property. At
Closing, Seller shall deliver to Purchaser a copy of all of Seller's data
files for each tenant utilized in connection with such software (that is,
the electronic information with respect to each tenant's payment history
and account balance), such delivery to be subject to the following:
(i) Purchaser acknowledges and agrees that Purchaser shall not be
entitled to the use of Seller's and/or the existing property
management company's license for the use of such software;
(ii) Purchaser acknowledges and agrees that, notwithstanding any
other provision of this Agreement, Seller shall not be deemed to
have made any representation and/or warranty as to the accuracy
or completeness of the electronic information to be delivered
under this Section 11(V); and
(iii) Purchaser acknowledges and agrees that Seller shall have no
liability to Purchaser (or any party who acquires such
information from Purchaser) with respect to the information or
any use thereof.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY BLANK]
23
<PAGE>
[Signature page to Real Estate Sale Agreement]
IN WITNESS WHEREOF, Seller and Purchaser have executed and delivered this
Agreement as of the date first above written.
WITNESS: SELLER:
1605 MAIN STREET ASSOCIATES, a Florida joint
venture
By: First Capital Institutional Real Estate,
Ltd.-2, a Florida limited partnership
By: First Capital Financial Corporation, a
Florida corporation, its sole general
partner
By: _________________________________
_____________________________ Name: _________________________________
Print Name: _________________ Its: _________________________________
By: First Capital Institutional Real Estate,
Ltd.-3, a Florida limited partnership
By: First Capital Financial Corporation, a
Florida corporation, its sole general
partner
_____________________________ By: _________________________________
Print Name: _________________ Name: _________________________________
Its: _________________________________
PURCHASER:
_____________________________ TRICONY FLORIDA CORPORATION, a Florida
Print Name: _________________ corporation
_____________________________ By: ___________________________________________
Print Name: _________________ Name: ___________________________________________
Its: ___________________________________________
24
<PAGE>
LIST OF EXHIBITS
----------------
A-1 - Legal Description -- Fee Parcel
A-2 - Legal Description -- Leasehold Parcel
B - Permitted Exceptions
C - Service Contracts
D - Joint Order Escrow Agreement
E - Assignment and Assumption of Leases
F - Assignment and Assumption of Service Contracts
G - Form Tenant Estoppel Certificate
H - Notices of Violations of Laws
I - List of Litigation
J - Bill of Sale
K - Personal Property
L - Notice Letter to Tenants
M - Notice Letter to Vendors/Licensees under Service Contracts
N - Rent Roll
O - OSHA Letter
P - Environmental Reports
Q - Security Deposits
R - Special Warranty Deed
S - List of New Leases
T - Designated Tenants
U - Form Seller Estoppel Certificate
V - Assignment and Assumption of Lessee's Interest in Ground Lease
W - Form Ground Lessor Estoppel Certificate
25
<PAGE>
EXHIBIT A-1
LEGAL DESCRIPTION -- FEE PARCEL
-------------------------------
To be attached from Seller's existing title policy.
26
<PAGE>
EXHIBIT A-2
LEGAL DESCRIPTION -- LEASEHOLD PARCEL
-------------------------------------
To be attached from Seller's existing title policy.
27
<PAGE>
EXHIBIT B
PERMITTED EXCEPTIONS
--------------------
1. Acts of Purchaser, and those claiming by, through and under Purchaser.
2. General and special taxes and assessments which are not shown as existing
liens by the public records.
3. Rights of tenants under the Leases, and those claiming by, through and
under said tenants.
4. Zoning, building and other governmental and quasi-governmental laws, codes
and regulations.
5. Any claim that any portion of the property is sovereign lands of the State
of Florida including submerged, filled or artificially exposed lands and
lands accreted to such lands.
6. Covenants, conditions, restrictions, and private or public utility
easements of record.
7. Encroachments, overlaps, boundary line disputes, or other matters which
would be disclosed by an accurate survey or inspection of the Property.
8. Easements, or claims of easements, not shown by the public records.
9. Taxes and assessment for the year 1998 and subsequent years.
28
<PAGE>
EXHIBIT C
SERVICE CONTRACTS
-----------------
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------------------------------
VENDOR NAME TYPE OF SERVICE
- --------------------------------------------------------------------------------------------------------
<S> <C>
A-1 Orange Cleaning Service window cleaning
- --------------------------------------------------------------------------------------------------------
Carrier Corporation chiller repairs
- --------------------------------------------------------------------------------------------------------
Clean Sweep Parking Lot Maintenance, Inc. parking lot maintenance
- --------------------------------------------------------------------------------------------------------
Control System Specialist, Inc. energy management system
- --------------------------------------------------------------------------------------------------------
Employers Security Company/U.S. Security Associates, Inc. security service
- --------------------------------------------------------------------------------------------------------
Gulf Business Systems, Inc. fax/copier repair
- --------------------------------------------------------------------------------------------------------
Kibler Chemical Corporation water treatment
- --------------------------------------------------------------------------------------------------------
Marble Renewal marble maintenance (lobby/elevators)
- --------------------------------------------------------------------------------------------------------
Montgomery Kone, Inc. elevators
- --------------------------------------------------------------------------------------------------------
Orkin Pest Control pest control
- --------------------------------------------------------------------------------------------------------
Tropex Plant Sales Leasing & Maintenance, Inc. interior common area (flowers)
- --------------------------------------------------------------------------------------------------------
U.S. Lawns of Sarasota, Inc. exterior common area (landscaping)
- --------------------------------------------------------------------------------------------------------
</TABLE>
Miscellaneous Agreements
------------------------
<TABLE>
<CAPTION>
- ---------------------------------------------------------------------------------------------------------
VENDOR NAME TYPE OF SERVICE
- ---------------------------------------------------------------------------------------------------------
<S> <C>
Airborne Express Drop Box
- ---------------------------------------------------------------------------------------------------------
ANI Site Development Antenna Manager
- ---------------------------------------------------------------------------------------------------------
APT Tampa/Orlando, Inc. Antenna
- ---------------------------------------------------------------------------------------------------------
Air Touch Paging, Inc. Antenna
- ---------------------------------------------------------------------------------------------------------
ARDIS Company Antenna
- ---------------------------------------------------------------------------------------------------------
Dial Page, Inc. Antenna
- ---------------------------------------------------------------------------------------------------------
Federal Express Drop Box
- ---------------------------------------------------------------------------------------------------------
Mobile Media Communications, Inc. Antenna
- ---------------------------------------------------------------------------------------------------------
Paging Network of Orlando, Inc. (Paging Network of Tampa, Inc.) Antenna (2 Agreements)
- ---------------------------------------------------------------------------------------------------------
PrimeCo Personal Communications, L.P. Antenna
- ---------------------------------------------------------------------------------------------------------
Ram Mobile Data USA Antenna
- ---------------------------------------------------------------------------------------------------------
Sarasota Cellular Telephone Company Antenna
- ---------------------------------------------------------------------------------------------------------
Palmer Communications Antenna
- ---------------------------------------------------------------------------------------------------------
United Parcel Service Drop Box
- ---------------------------------------------------------------------------------------------------------
</TABLE>
Broker Agreements
-----------------
<TABLE>
<CAPTION>
- ---------------------------------------------------------------------------------------------------------
TENANT NAME BROKER NAME DATE OF AGREEMENT
- ----------------------------------------------------------------------------------------------------------
<S> <C> <C>
Paine Webber Commercial Management & Leasing 10/12/93
- ----------------------------------------------------------------------------------------------------------
</TABLE>
29
<PAGE>
EXHIBIT D
JOINT ORDER ESCROW AGREEMENT
----------------------------
ELLIS BUILDING
SARASOTA, FLORIDA
Date: June __, 1998
TO: Rudnick & Wolfe
101 East Kennedy Boulevard
Suite 2000
Tampa, Florida 33602
Attention: John T. Diamandis, Esq.
The amount of Five Hundred Thousand Dollars ($500,000.00) deposited with
you by Broad and Cassel (the "Escrow Deposit") is deposited with you in escrow
on behalf of TRICONY FLORIDA COMPANY, a Florida corporation, the "Purchaser"
under that certain Real Estate Sale Agreement (the "Contract"), dated June __,
1998 with 1605 MAIN STREET ASSOCIATES, a Florida joint venture, as the "Seller",
with respect to the purchase and sale of the property commonly known as Ellis
Building, 1605 Main Street, Sarasota, Florida.
As escrowee, you are hereby directed to hold, deal with and dispose of the
Escrow Deposit in accordance with the following terms and conditions:
1. You are to hold the Escrow Deposit until: (a) you are in receipt of a joint
order by the undersigned Seller and Purchaser as to the disposition of the
Escrow Deposit which may be contained in the closing statement executed in
connection with the above referenced purchase and sale; or (b) you are in
receipt of a written demand (the "Demand") from either Seller or Purchaser
for the payment of the Escrow Deposit or any portion thereof. Upon receipt
of any Demand, you are directed to so notify the non-demanding party,
enclosing a copy of the Demand. If within five (5) business days after the
non-demanding party has received or is deemed to have received your notice
of your receipt of the Demand, you have not received from the non-demanding
party its notice of objection to the Demand, then you are to disburse the
Escrow Deposit as requested by the Demand. If within said five business-
day period you receive from the non-demanding party its notice of objection
to the Demand, then you are to continue to hold the Escrow Deposit until
you are in receipt of a joint order as aforesaid, but after sixty (60) days
from the initial Demand you may, at your option, bring an interpleader or
other appropriate action and deposit the Escrow Deposit with a Court of
competent jurisdiction. Upon making such deposit you shall be fully
relieved and discharged from all further obligations hereunder with respect
to the sums so deposited. Notwithstanding the foregoing, if there is any
dispute as to whether or to whom you are obligated to deliver the Escrow
Deposit or any part thereof, you will not be obligated to make any
delivery, but may continue to hold the Escrow Deposit or deposit the Escrow
Deposit with a court, as provided for above.
2. Notwithstanding the foregoing, as escrowee, you are hereby expressly
authorized to regard and to comply with and obey any and all orders,
judgments or decrees entered or issued by any Court, and in case you obey
or comply with any such order, judgment or decree of any Court, you shall
not be liable to either of the parties hereto or any other person or entity
by reason of such compliance, notwithstanding any such order, judgment or
decree be entered without jurisdiction
<PAGE>
or be subsequently reversed, modified, annulled, set aside or vacated. In
case of any suit or proceeding regarding these Escrow Instructions, to
which you are or may at any time be a party, the undersigned Seller and
Purchaser agree that the non-prevailing party shall pay to you upon demand
all reasonable costs and expenses incurred by you in connection herewith
but solely for costs incurred in your role as Escrowee.
3. You shall not charge an escrow fee in connection with your role as Escrowee
hereunder.
4. As escrowee, after your receipt of a fully completed and executed Request
for Taxpayer Identification Number and Certification (IRS form W-9), you
shall invest the Escrow Deposit in an interest-bearing account with a
federally-insured bank or savings and loan as association or as otherwise
directed by both Purchaser and Seller in writing. Any interest earned on
the Escrow Deposit, after you deduct your customary investment charges,
shall become and be deemed to be a part of the Escrow Deposit. The FEIN of
Purchaser is ____________________.
5. All notices or other communications hereunder shall be in writing and shall
be personally delivered or sent by overnight courier (such as Federal
Express), by facsimile transmission or by first class United States Mail,
postage prepaid, registered or certified (return receipt requested) to the
respective addresses for the Seller, Purchaser and escrowee as herein
provided, together with copies to the attorneys for Seller and Purchaser at
the addresses for such attorneys set forth in Paragraph 6 below. A notice
is given on the date it is personally delivered, sent by overnight courier
or facsimile transmission, or deposited with the United States Mail for
delivery as aforesaid. A notice is received on the date it is personally
delivered, the day after sent if sent by overnight courier or facsimile
transmission or, if sent by mail as aforesaid, on the date noted on the
return receipt.
6. Either Purchaser or Seller may act hereunder either directly or through its
attorney. The attorney for the Purchaser is:
Broad and Cassel
201 South Biscayne Blvd.
Miami, Florida 33131
Telephone: (305) 373-9420
Facsimile: (305) 373-9443
Attention: Marwin S. Cassel
The attorney for the Seller is:
Rosenberg & Liebentritt, P.C.
Two North Riverside Plaza
Suite 1515
Chicago, Illinois 60606
Facsimile: (312) 454-0335
Telephone: (312) 466-3950
Attention: Mark A. Trager
6A. Your duties as escrowee do not extend beyond those specifically provided
for herein and are purely ministerial in nature, and you shall incur no
liability whatsoever except for your own
2
<PAGE>
fraud, willful misconduct or gross negligence. Purchaser and Seller shall
hold you harmless from any liability for any loss of the Escrow Deposit or
interest thereon caused by any delay in the deposit or early withdrawal of
the Escrow Deposit from the interest bearing account and for any other act
done or omitted to be done by you in connection with the performance of
your duties hereunder, except to the extent such act or omission
constitutes your fraud, willful misconduct or gross negligence.
6B. Upon your fulfillment of your duties in accordance with the provisions of
this Escrow Agreement, your duties and responsibilities will cease and you
will be released of all liability in connection with this Escrow Agreement
and the Escrow Deposit. You may act in reliance upon any authorization,
acknowledgment or signature which you believe to be genuine and may assume
that any person purporting to give any writing, acknowledgment, notice or
instruction in connection with the provisions of this Escrow Agreement has
been duly authorized to do so. You may rely on demands, instructions, and
authorizations received by telecopy.
6C. Purchaser and Seller acknowledge that you have served and will continue to
serve as special Florida counsel to Seller in connection with the sale of
the above described property. Purchaser and Seller agree that pursuant to
this letter, you are acting as a neutral depository only and no
attorney/client relationship is being created. In addition, Purchaser
agrees that in the event of a dispute arising out of or in connection with
the sale of the property, or the Contract, including any dispute as to the
Escrow Deposit, you will be permitted to continue to act as counsel for
Purchaser in connection with any such dispute, notwithstanding that Rudnick
& Wolfe is also serving as Escrowee and title agent under the Contract.
Rudnick and Wolfe's employment as special Florida counsel for Seller shall
not, however, affect Escrowee's duties and obligations hereunder.
3
<PAGE>
7. This Escrow Agreement is being entered into to implement the Contract and
shall not (nor be deemed to) amend, modify or supersede the Contract or act
as a waiver of any rights, obligations or remedies set forth therein;
provided, however, that you may rely solely upon these Escrow Instructions.
SELLER:
1605 MAIN STREET ASSOCIATES, a Florida joint
venture
By: First Capital Institutional Real Estate,
Ltd.-2, a Florida limited partnership
By: First Capital Financial Corporation, a
Florida corporation, its sole general
partner
By: _______________________________
Name: _______________________________
Its: _______________________________
By: First Capital Institutional Real Estate,
Ltd.-3, a Florida limited partnership
By: First Capital Financial Corporation, a
Florida corporation, its sole general
partner
By: _______________________________
Name: _______________________________
Its: _______________________________
PURCHASER:
TRICONY FLORIDA CORPORATION, a Florida corporation
By: _________________________________________
Name: _________________________________________
Its: _________________________________________
4
<PAGE>
ADDRESS OF PURCHASER:
Tricony Florida Corporation
313-1/2 Worth Avenue
Suite 1-B
Palm Beach, Florida 33480
Telephone: (561) 832-7088
Facsimile: (561) 832-7551
Attention: Edward Torres
With a copy to:
Broad and Cassel
201 South Biscayne Blvd.
Miami, Florida 33131
Telephone: (305) 373-9420
Facsimile: (305) 373-9443
Attention: Marwin S. Cassel
ADDRESS OF SELLER:
c/o Equity Office Properties Management Corp.
Two North Riverside Plaza, Suite 2200
Chicago, Illinois 60606
Facsimile: (312) 559-5051
Telephone: (312) 466-3595
Attention: Alissa Schneider
With a copy to:
Rosenberg & Liebentritt, P.C.
Two North Riverside Plaza
Suite 1600
Chicago, Illinois 60606
Facsimile: (312) 454-0335
Telephone: (312) 466-3950
Attention: Mark A. Trager
5
<PAGE>
ACCEPTED THIS ____ DAY OF JUNE, 1998
RUDNICK & WOLFE, as Escrowee
By: ________________________
Title: _____________________
ADDRESS OF ESCROWEE:
101 East Kennedy Boulevard
Suite 2000
Tampa, Florida 33602
Facsimile: (813) 229-1447
Telephone: (813) 229-2111
Attention: John T. Diamandis, Esq.
6
<PAGE>
EXHIBIT E
ASSIGNMENT AND ASSUMPTION
OF LEASES AND SECURITY DEPOSITS
-------------------------------
THIS ASSIGNMENT AND ASSUMPTION OF LEASES AND SECURITY DEPOSITS (this
"Assignment") is entered into as of the ______________ day of __________, 1998,
by and between 1605 MAIN STREET ASSOCIATES, a Florida joint venture
("Assignor"), having offices at Two North Riverside Plaza, Chicago, Illinois
60606, and _______________ ("Assignee"), with an office at 313-1/2 Worth Avenue,
Suite 1-B, Palm Beach, Florida 33480.
1. Property. The "Property" shall mean (a) the real property located
in the City of Sarasota, County of Sarasota, State of Florida, legally described
in EXHIBIT A-1 attached to this Assignment ("Fee Parcel"), and (b) Seller's
right, title and interest in and to a leasehold estate in the real property
located in the City of Sarasota, County of Sarasota, State of Florida, which
parcel is more particularly described in attached EXHIBIT A-2 (the "Leasehold
Parcel"), together with the building, structures and other improvements owned by
Assignor and located on the Fee Parcel and the Leasehold Parcel and commonly
known as "Ellis Building".
2. Leases. The "Leases" shall mean all leases affecting the Property
or any part thereof, except for the "Ground Lease" (as such term is defined in
the "Contract" (defined below)), which leases are listed on EXHIBIT B attached
hereto. "Lease" shall mean any one of the Leases.
3. Security Deposits. "Security Deposits" shall mean the Security
Deposits set forth on EXHIBIT C attached hereto held by Assignor in connection
with certain of the Leases.
4. Contract. "Contract" shall mean that certain Real Estate Sale
Agreement dated June __, 1998 by and between Assignor, as Seller, and Assignee
(successor-in-interest by assignment thereof from Tricony Florida Corporation),
as Purchaser, as amended, for the purchase and sale of the Property.
5. Assignment. For good and valuable consideration received by
Assignor, the receipt and sufficiency of which are hereby acknowledged, Assignor
hereby assigns to Assignee the entire right, title and interest of Assignor in
and to the Leases and the Security Deposits as applicable to the period from and
after the date hereof.
6. Assumption. Assignee hereby assumes all of the covenants,
agreements and obligations of Assignor under or in connection with the Leases as
applicable to the period from and after the date hereof, and Assignee further
assumes all liability of Assignor for the proper refund or return of the
Security Deposits if, when and as required by the Leases or otherwise by law. In
addition, Assignee agrees to pay (i) in accordance with Section 4(C)(i)(c) of
the Contract, all brokerage fees, brokerage or leasing commissions and tenant
improvements costs and/or allowances payable in connection with the "New Leases"
(as defined in the Contract) set forth on EXHIBIT D attached hereto, to the
extent that such fees, commissions, costs and allowances were not required to be
paid by Assignor prior to the date hereof; and (ii) to the extent not included
in (i) above, all tenant improvement costs and/or allowances payable in
connection with Leases during the period from and after the date hereof.
7. Indemnification. Assignee hereby unconditionally, absolutely and
irrevocably agrees to indemnify, defend and hold Assignor harmless of, from and
against any and all costs, claims, obligations, damages, penalties, causes of
action, losses, injuries, liabilities and expenses, including, without
limitation, reasonable attorney's fees and expenses, arising out of, in
connection with or accruing under the Leases on or after the date hereof,
including, but not limited to, any such liabilities or expenses arising
<PAGE>
in connection with any of the Security Deposits, prepaid rent or other sums held
by Assignee as the landlord under any of the Leases or any brokerage fees or
leasing commissions which are payable with respect to the renewal or extension
of any Lease by tenants accruing from and after the date hereof only.
8. Enforcement. If Assignor or Assignee must resort to a court of
law or equity in order to enforce the provisions of this Assignment as against
the other, the non-prevailing party shall pay the reasonable attorney's fees and
expenses of the prevailing party.
9. Third Parties. Except as set forth in Section 11 of this
Assignment, no third party shall have the benefit of any of the provisions of
this Assignment, nor is this Assignment made with the intent that any person or
entity other than Assignor or Assignee rely hereon.
10. Limited Liability. By accepting this Assignment, Assignee
expressly understands and agrees that any recovery against Assignor that
Assignee may be entitled to as a result of any claim, demand or cause of action
that Assignee may have against Assignor with respect to this Assignment shall
only be recoverable against Assignor as provided in Section 11(P) of the
Contract.
11. Successors and Assigns. This Assignment shall be binding upon
and inure to the benefit of the parties hereto and their respective successors
and assigns.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY BLANK]
2
<PAGE>
[Signature page attached to Assignment and Assumption of
Leases and Security Deposits]
IN WITNESS WHEREOF, Assignor and Assignee have executed this Assignment the
day and year first above written.
ASSIGNOR:
1605 MAIN STREET ASSOCIATES, a Florida joint
venture
By: First Capital Institutional Real Estate,
Ltd.-2, a Florida limited partnership
By: First Capital Financial Corporation, a
Florida corporation, its sole general
partner
By:__________________________________
Name:________________________________
Its:_________________________________
By: First Capital Institutional Real Estate,
Ltd.-3, a Florida limited partnership
By: First Capital Financial Corporation, a
Florida corporation, its sole general
partner
By:__________________________________
Name:________________________________
Its:_________________________________
ASSIGNEE:
_____________________________________
By:__________________________________
Name:________________________________
Its:_________________________________
3
<PAGE>
EXHIBITS
--------
A-1 - Legal Description - Fee Parcel
A-2 - Legal Description - Leasehold Parcel
B - List of Leases
C - Security Deposits
D - New Leases
4
<PAGE>
EXHIBIT F
ASSIGNMENT AND ASSUMPTION OF SERVICE CONTRACTS
----------------------------------------------
THIS ASSIGNMENT AND ASSUMPTION OF SERVICE CONTRACTS (this "Assignment")
is entered into as of the ____ day of ______________, 1998 by and between
1605 MAIN STREET ASSOCIATES, a Florida joint venture ("Assignor"), having
offices at Two North Riverside Plaza, Chicago, Illinois 60606, and __________
______________________ ("Assignee"), with an office at 313 1/2 Worth Avenue,
Suite 1-B, Palm Beach, Florida 33480.
1. Property. The "Property" shall mean (a) the real property located in
the City of Sarasota, County of Sarasota, State of Florida, legally described in
EXHIBIT A-1 attached to this Assignment ("Fee Parcel"), and (b) Seller's right,
title and interest in and to a leasehold estate in the real property located in
the City of Sarasota, County of Sarasota, State of Florida, which parcel is more
particularly described in attached EXHIBIT A-2 (the "Leasehold Parcel"),
together with the building, structures and other improvements owned by Assignor
and located on the Fee Parcel and the Leasehold Parcel and commonly known as
"Ellis Building".
2. Service Contracts. "Service Contracts" shall mean the service
contracts entered into with respect to the ownership and operation of the
Property that Assignee has assumed hereunder. The Service Contracts are listed
on EXHIBIT B attached to this Assignment.
3. Contract. "Contract" shall mean that certain Real Estate Sale
Agreement dated June __, 1998 by and between Assignor, as Seller, and Assignee
(successor-in-interest by assignment thereof from Tricony Florida Corporation),
as Purchaser, as amended, for the purchase and sale of the Property.
4. Assignment. For good and valuable consideration received by Assignor,
the receipt and sufficiency of which are hereby acknowledged, Assignor hereby
assigns to Assignee the entire right, title and interest of Assignor in and to
the Service Contracts as applicable to the period from and after the date
hereof.
5. Assumption. Assignee hereby assumes all of the covenants, agreements
and obligations of Assignor under or in connection with the Service Contracts as
applicable to the period from and after the date hereof.
6. Enforcement. If Assignor or Assignee must resort to a court of law or
equity in order to enforce the provisions of this Assignment as against the
other, the non-prevailing party shall pay the reasonable attorney's fees and
expenses of the prevailing party.
7. Third Parties. Except as set forth in Section 11 of this Assignment,
no third party shall have the benefit of any of the provisions of this
Assignment, nor is this Assignment made with the intent that any person or
entity other than Assignor or Assignee shall rely hereon.
8. Indemnification. Assignee hereby unconditionally, absolutely and
irrevocably agrees to indemnify, defend and hold Assignor harmless of, from and
against any and all costs, claims, obligations, damages, penalties, causes of
action, losses, injuries, liabilities and expenses, including, without
limitation, reasonable attorneys' fees and expenses, arising out of, in
connection with or accruing under the Service Contracts which are applicable to
the period on and after the date hereof only.
9. No Representations or Warranties. This Assignment shall not be
construed as a representation or warranty by Assignor as to the transferability
of the Service Contracts, and Assignor
<PAGE>
shall have no liability to Assignee in the event that any or all of the Service
Contracts (i) are not transferable to Assignee or (ii) are canceled or
terminated by reason of this assignment or any acts of Assignee.
10. Limited Liability. By accepting this Assignment, Assignee expressly
understands and agrees that any recovery against Assignor that Assignee may be
entitled to as a result of any claim, demand or cause of action that Assignee
may have against Assignor with respect to this Assignment shall only be
recoverable against Assignor as provided in Section 11(P) of the Contract.
11. Successors and Assigns. This Assignment shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and
assigns.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY BLANK]
2
<PAGE>
[Signature page attached to Assignment and Assumption of Service Contracts]
IN WITNESS WHEREOF, Assignor and Assignee have executed this Assignment the
day and year first above written.
ASSIGNOR:
1605 MAIN STREET ASSOCIATES, a Florida joint
venture
By: First Capital Institutional Real Estate,
Ltd.-2, a Florida limited partnership
By: First Capital Financial Corporation,
a Florida corporation, its sole
general partner
By: ____________________________
Name: ____________________________
Its: ____________________________
By: First Capital Institutional Real Estate,
Ltd.-3, a Florida limited partnership
By: First Capital Financial Corporation,
a Florida corporation, its sole
general partner
By: ____________________________
Name: ____________________________
Its: ____________________________
ASSIGNEE:
_____________________________________________
By: ______________________________________
Name: ______________________________________
Its: ______________________________________
3
<PAGE>
EXHIBITS
--------
A-1 - Legal Description - Fee Parcel
A-2 - Legal Description - Leasehold Parcel
B - Service Contracts
4
<PAGE>
EXHIBIT G
FORM TENANT ESTOPPEL CERTIFICATE
--------------------------------
Tricony Florida Corporation
313 1/2 Worth Avenue
Suite 1-B
Palm Beach, Florida 33480
1605 MAIN STREET ASSOCIATES, a Florida joint venture
c/o Equity Office Properties Management Corp.
Two North Riverside Plaza
Suite 2200
Chicago, Illinois 60606
Re: [Name of Tenant]. Suite ___, Ellis Building,
1605 Main Street, Sarasota, Florida (the "Property")
Gentlemen:
At the request of 1605 MAIN STREET ASSOCIATES, a Florida joint venture
("Landlord"), made in connection with the proposed sale of the Property and
Landlord's interest in the "Lease" (as hereinafter defined) to Tricony Florida
Corporation (together with its successors and assigns "Purchaser"), the
undersigned hereby certifies to Landlord and Purchaser and agrees as follows
recognizing that Landlord and Purchaser will rely on the information contained
herein.
1. The undersigned is the tenant under a lease with Landlord as
described below:
a. Date of tenant's lease:_________________________________________
b. Date of all amendments or modifications:________________________
c. Leased premises: Suite No.__________ Floor No.____________
d. Leased premises approximate sq. ft._____________________________
e. Expiration date of lease:_______________________________________
f. Unexercised renewal options:__________________________ for_____
___________ years each.
g. Security deposit currently held by Landlord: $______________
h. Advance or Prepaid Rent: $_____________
i. Unused free rent/rent concessions_______________________________
________________________________________________________________
2. The above lease ([as amended as aforesaid], the "Lease") is in
full force and effect and has not (otherwise) been amended, modified,
supplemented or superseded, and constitutes the entire
<PAGE>
Tricony Florida Corporation
1605 MAIN STREET ASSOCIATES, a Florida joint venture
_____________, 1998
Page 2
agreement between the undersigned and Landlord with respect to said premises.
There is no other agreement, oral or written, (except for the agreements
contained herein) between the undersigned and the Landlord with respect to said
premises or any other space at the above-referenced property, except: [list any
other space leased by tenant, including storage space]. A true, correct and
complete copy of the Lease is attached hereto as EXHIBIT A.
3. The undersigned is not in default under the Lease, except as shown
on SCHEDULE I attached hereto. There is no defense, offset, claim or
counterclaim by or in favor of the undersigned against Landlord under the Lease
or against the obligations of the undersigned against Landlord under the Lease
or against the obligations of the undersigned under the Lease.
4. The Landlord is not in default under the Lease.
5. The undersigned is in sole possession of the leased premises and
has not subleased all or any part of the leased premises, or assigned the Lease,
except as follows: [list assignments or sublease]
6. The monthly base rental due under the Lease is $____ and has been
paid through __________ 199___. All additional base rental, to-wit: estimated
monthly common area, maintenance and real estate taxes, payable in the amount of
$ per month at the present time, has been paid through ___________________,
199___. In addition, monthly sales and use tax due under the Lease, payable in
the amount of $_________ per month at the present time, has been paid through
__________, 199__.
7. There are no actions, voluntary or otherwise, pending against the
undersigned under the bankruptcy, reorganization, moratorium of similar laws of
the United States, any state thereof or any other jurisdiction.
8. The undersigned has accepted possession and taken occupancy of the
premises and has commenced the payment of rents for all space subject to the
Lease.
9. All improvements, build-outs, finished work and any other
obligations of the Landlord under the Lease have been completed and to the best
of the knowledge of the undersigned have been paid for either by the Landlord or
the tenant in full, except as follows: _____________________________
10. The person signing this Certificate is an authorized agent of the
tenant.
11. The "base year" for additional base rental under the Lease is 19__
and the "basic costs" attributable to such "base year" is $_________________.
[Note: if Lease is a relatively new lease and the base year amounts have not yet
been determined, this provision will be modified to state the "base year" and
that the "basic costs" are to be determined.]
12. We have no expansion option or right of first refusal under Lease
to lease additional space, except as follows:
________________________________________________________________
________________________________________________________________
<PAGE>
Tricony Florida Corporation
1605 MAIN STREET ASSOCIATES, a Florida joint venture
_____________, 1998
Page 3
___________________________________
13. The undersigned hereby acknowledges that the Landlord will be
assigning to Purchaser its right under the Lease from and after the date of such
assignment, including without limitation, the right to receive rents, from and
after the date of such assignment, and the undersigned agrees that upon receipt
by us of a letter from the Landlord to the effect that the closing is taking
place and that rent should thereafter be paid to Purchaser, that we shall make
all payments of rent and common area maintenance and other expenses which may be
chargeable to us from and after the date of such assignment, to Purchaser, as
the new landlord, at the address as contained in said letter.
14. The undersigned acknowledges the fact that the Purchaser may be
securing a new mortgage loan encumbering the Property in which the within space
is located. Without the necessity of re-securing an estoppel letter from the
undersigned, it is understood and agreed that this Certificate may be relied
upon by the new mortgagee under the proposed mortgage being executed in
conjunction with the acquisition of the Property as though the same had been
directly made to such mortgagee; provided, however, that such mortgage loan
shall be made within sixty (60) days from the date on which the undersigned
tenant executes this Certificate.
The undersigned understands that Landlord and Purchaser will rely on
the certifications set forth above and that all such certifications shall enure
to the benefit of Landlord and Purchaser and the benefit of their successors and
assigns, and shall be binding upon the undersigned, its successors, heirs, legal
representatives and assigns.
Sincerely,
[Tenant]
By: ________________________________
Name: __________________________
Title: __________________________
Date: __________________________
<PAGE>
EXHIBIT H
NOTICES OF VIOLATIONS OF LAWS
-----------------------------
None.
<PAGE>
EXHIBIT I
LIST OF LITIGATION
------------------
None.
<PAGE>
EXHIBIT J
BILL OF SALE
------------
BILL OF SALE
------------
THIS BILL OF SALE (this "Bill of Sale") is executed as of the ____ day
of _________, l997, by 1605 MAIN STREET ASSOCIATES, a Florida joint venture
("Seller"), having an office at Two North Riverside Plaza, Chicago, Illinois
60606, in favor of ________________ ("Purchaser"), having an office at 313 1/2
Worth Avenue, Suite 1-B, Palm Beach, Florida 33480.
1. Real Property. The "Real Property" shall mean (a) the real
property located in the City of Sarasota, County of Sarasota, State of Florida,
legally described in EXHIBIT A-1 attached to this Assignment ("Fee Parcel"), and
(b) Seller's right, title and interest in and to a leasehold estate in the real
property located in the City of Sarasota, County of Sarasota, State of Florida,
which parcel is more particularly described in attached EXHIBIT A-2 (the
"Leasehold Parcel"), together with the building, structures and other
improvements owned by Assignor and located on the Fee Parcel and the Leasehold
Parcel and commonly known as "Ellis Building".
2. Personal Property. The "Personal Property" shall mean the
"Personal Property" as defined in that certain Real Estate Sale Agreement dated
the ___ day of June, 1998 (as amended, the "Contract"), by and between Seller
and Purchaser (successor-in-interest by assignment thereof from Tricony Florida
Corporation) with respect to the purchase and sale of the Real Property and
other property as described therein, as such Personal Property is more
particularly described on attached EXHIBIT B.
3. Sale. For good and valuable consideration received by Seller, the
receipt and sufficiency of which are hereby acknowledged, Seller hereby sells,
assigns and transfers the Personal Property to Purchaser free of any liens or
encumbrances. Seller covenants and agrees to warrant and defend title to the
Personal Property unto Purchaser against all and every person or persons
lawfully claiming the whole or any part thereof. Except as set forth in the two
(2) preceding sentences, Seller makes no warranties or representations as to the
Personal Property. The Personal Property is transferred "AS IS, WHERE IS" and
ALL WARRANTIES OF QUALITY, FITNESS AND MERCHANTABILITY ARE HEREBY EXCLUDED.
4. Limited Liability. By accepting this Bill of Sale, Purchaser
expressly understands and agrees that any recovery against Seller that Purchaser
may be entitled as a result of any claim, demand or cause of action that
Purchaser may have against Seller with respect to this Bill of Sale shall only
be recoverable against Seller as provided in Section 11(P) of the Contract.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY BLANK]
<PAGE>
IN WITNESS WHEREOF, Seller has executed this Bill of Sale the day and
year first above written.
SELLER:
1605 MAIN STREET ASSOCIATES, a Florida joint
venture
By: First Capital Institutional Real Estate,
Ltd.-2, a Florida limited partnership
By: First Capital Financial Corporation, a
Florida corporation, its sole general
partner
By: _____________________________
Name: _____________________________
Its: _____________________________
By: First Capital Institutional Real Estate,
Ltd.-3, a Florida limited partnership
By: First Capital Financial Corporation, a
Florida corporation, its sole general
partner
By: _____________________________
Name: _____________________________
Its: _____________________________
2
<PAGE>
EXHIBIT K
PERSONAL PROPERTY
-----------------
<TABLE>
<CAPTION>
ITEM NAME MAKE QUANTITY
- --------------------------------------------------------------------------------------------------------
<S> <C> <C>
4 Drawer laterial File Cabinet Red 3
- --------------------------------------------------------------------------------------------------------
4 Drawer Horizontal File Cabinet Black 1
- --------------------------------------------------------------------------------------------------------
2 Drawer Horizontal File Cabinet Black 2
- --------------------------------------------------------------------------------------------------------
Copier Panasonic FP2680 1
- --------------------------------------------------------------------------------------------------------
Fax Machine Icoh Ricoh 1
- --------------------------------------------------------------------------------------------------------
White Table (for fax machine) 1
- --------------------------------------------------------------------------------------------------------
Shelves 2
- --------------------------------------------------------------------------------------------------------
2 Door Cabinet 8' White 1
- --------------------------------------------------------------------------------------------------------
Typewriters IBM/Smith Corona 2
- --------------------------------------------------------------------------------------------------------
Pencil Sharpener IBM 1
- --------------------------------------------------------------------------------------------------------
Cutting Board 1
- --------------------------------------------------------------------------------------------------------
Stapler Swingline 113 1
- --------------------------------------------------------------------------------------------------------
Secretarial Desk with Return White 1
- --------------------------------------------------------------------------------------------------------
Reception Chairs wood/gray cushion 4
- --------------------------------------------------------------------------------------------------------
End Table (Wood) Maple 1
- --------------------------------------------------------------------------------------------------------
Long Wood Table Maple 1
- --------------------------------------------------------------------------------------------------------
Wood Office Desk 1
- --------------------------------------------------------------------------------------------------------
Leather Chair (High Back - Black) 1
- --------------------------------------------------------------------------------------------------------
Credenza 1
- --------------------------------------------------------------------------------------------------------
2 Door Glass Cabinet Wood 1
- --------------------------------------------------------------------------------------------------------
2 Shelf Book Case Wood 1
- --------------------------------------------------------------------------------------------------------
Refrigerator 1
- --------------------------------------------------------------------------------------------------------
Microwave Sharp Carousel 1
- --------------------------------------------------------------------------------------------------------
6' Conference Table Light Wood 1
- --------------------------------------------------------------------------------------------------------
Chairs (gray material with wheels) 3
- --------------------------------------------------------------------------------------------------------
Waste Baskets Black/Tan/Brown 6
- --------------------------------------------------------------------------------------------------------
Plastic Floor Mat for Chair 1
- --------------------------------------------------------------------------------------------------------
Chairs 3
- --------------------------------------------------------------------------------------------------------
Desk 3
- --------------------------------------------------------------------------------------------------------
Misc Hand Tools
- --------------------------------------------------------------------------------------------------------
Wet/Dry Vacuum Cleaners Hoover/Dayton 3
- --------------------------------------------------------------------------------------------------------
Various Elec. Equip (ext. cords, etc.)
- --------------------------------------------------------------------------------------------------------
Drill Press 1
- --------------------------------------------------------------------------------------------------------
Acetylene Welding Equipment 1
- --------------------------------------------------------------------------------------------------------
Office Furnishings
- --------------------------------------------------------------------------------------------------------
Bench Grinder 1
- --------------------------------------------------------------------------------------------------------
Water Analysis Kit 1
- --------------------------------------------------------------------------------------------------------
Refrigerator GE 1
- --------------------------------------------------------------------------------------------------------
Blue Print Cabinet 1
- --------------------------------------------------------------------------------------------------------
Maint. Parts Cabinet 3
- --------------------------------------------------------------------------------------------------------
Air Tank 1
- --------------------------------------------------------------------------------------------------------
Wheel Barrow 1
- --------------------------------------------------------------------------------------------------------
Pressure Cleaner Dayton 1
- --------------------------------------------------------------------------------------------------------
Extension Ladder Little Giant 1
- --------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
<TABLE>
<S> <C>
Wooden Ladder 2
- --------------------------------------------------------------------------------------------------------
Fiberglass Ladder 1
- --------------------------------------------------------------------------------------------------------
Misc. Lamps, Paint, Refrig Supplies
- --------------------------------------------------------------------------------------------------------
Carpet Remnants
- --------------------------------------------------------------------------------------------------------
Sawzall Milwaukee 1
- --------------------------------------------------------------------------------------------------------
Circular Saw Skill 1
- --------------------------------------------------------------------------------------------------------
Grinder Milwaukee 1
- --------------------------------------------------------------------------------------------------------
Hammer Drill Milwaukee 1
- --------------------------------------------------------------------------------------------------------
Gas Blower Ryobi 1
- --------------------------------------------------------------------------------------------------------
Hand Sander Dewalt 1
- --------------------------------------------------------------------------------------------------------
Socket Set Blackhawk 1
- --------------------------------------------------------------------------------------------------------
Wrenches Blackhawk 1
- --------------------------------------------------------------------------------------------------------
Vacuum Cleaner Back Pack Hoover 1
- --------------------------------------------------------------------------------------------------------
Cordless Drill Makita 1
- --------------------------------------------------------------------------------------------------------
Car Boot Rhine 1
- --------------------------------------------------------------------------------------------------------
50 hp Motor Tower
- --------------------------------------------------------------------------------------------------------
40 hp Motor Chill
- --------------------------------------------------------------------------------------------------------
30 hp Motor Cond
- --------------------------------------------------------------------------------------------------------
5 hp Air Handler
- --------------------------------------------------------------------------------------------------------
Drive Shaft Tower
- --------------------------------------------------------------------------------------------------------
Gear Box Tower
- --------------------------------------------------------------------------------------------------------
2 Drawer File Cabinets 2
- --------------------------------------------------------------------------------------------------------
4 Drawer File Cabinets 3
- --------------------------------------------------------------------------------------------------------
</TABLE>
2
<PAGE>
EXHIBIT L
NOTICE LETTER TO TENANTS
------------------------
[Letterhead of Equity Office Properties Management Corp.]
NOTICE TO TENANTS
______________, 1998
Re: Ellis Building, 1605 Main Street, Sarasota, Florida (the "Property")
Dear Tenant:
This is to notify you that the Property has been sold to
_____________________, and that ________________________ has been retained by
the new owner as managing agent of the building.
Any security or other deposits and any prepaid rents under your lease have
been transferred to the new owner.
Effective immediately, all rental payments, notices to the Landlord, and
correspondence pursuant to your lease should be mailed to the following address:
Rents: Notices:
_____________________________________ ___________________________________
_____________________________________ ___________________________________
_____________________________________ ___________________________________
Attention: __________________________
Additionally, please have new Certificates of Insurance issued naming
____________________ as an additional insured. Please deliver said Certificate
to new owner at the "Notices" address set forth above. [FOR THOSE TENANTS THAT
HAVE OUTSTANDING PROMISSORY NOTES, LANGUAGE WILL BE ADDED DIRECTING THAT
PAYMENTS BE PAID TO SELLER.]
Very truly yours,
EQUITY OFFICE PROPERTIES MANAGEMENT CORP., a
Delaware corporation, as agent for Seller
By: _______________________________________
Its: _______________________________________
<PAGE>
EXHIBIT M
NOTICE LETTER TO VENDORS/LICENSEES UNDER SERVICE CONTRACTS
----------------------------------------------------------
[Letterhead of Equity Office Properties Management Corp.]
__________________, 1998
VIA TELECOPY AND
- ----------------
CERTIFIED MAIL, RETURN RECEIPT REQUESTED
- ----------------------------------------
[Vendor]
_________________________
_________________________
Re: Ellis Building, 1605 Main Street, Sarasota, Florida
(the "Property")
Dear Service Provider:
Reference is herein made to that certain service contract [license
agreement] (the "Contract") dated ________________, by and between Equity Office
Properties Management Corp. [as successor in interest to Equity Office
Properties, L.L.C.], as agent for the seller ("Seller") of the Property and
_____________________ with respect to the provision of ________________ at the
Property.
This is to advise you that effective as of today, the Property has
been sold to _______________________ ("Purchaser"). Purchaser has assumed all
of the obligations of the undersigned under the Contract as of the date hereof.
All notices to Purchaser should be sent to Purchaser c/o _________________,
_______________ and should be sent or delivered to such address in the manner
provided in the Contract.
Very truly yours,
EQUITY OFFICE PROPERTIES MANAGEMENT CORP., a
Delaware corporation, as agent for Seller
By: _______________________________________
Its: _______________________________________
<PAGE>
EXHIBIT N
RENT ROLL
---------
<TABLE>
<CAPTION>
- -------------------------------------------------------------------------------------------------------------
Monthly Base Rent + Base Year
Suite # Tenant Name Sq. Ft. Exp. Date CPI as of 5/1/98 or Stop
- -------------------------------------------------------------------------------------------------------------
<C> <S> <C> <C> <C> <C>
711 Bank America d/b/a American 4,198 8/31/99 5,790.55 1995
BankCard, Inc.
- -------------------------------------------------------------------------------------------------------------
600 Bewley & Associates, P.A. 1,409 11/30/98 1,937.38 1996
- -------------------------------------------------------------------------------------------------------------
1100 Cavanaugh & Company, C.P.A. 4,111 7/31/01 5,995.21 1996
- -------------------------------------------------------------------------------------------------------------
914 Corbett, Susan 629 10/31/99 778.39 1996
- -------------------------------------------------------------------------------------------------------------
705 Custima International Corp. 2,177 4/30/00 3,084.08 1997
- -------------------------------------------------------------------------------------------------------------
612 Ford, Edwin L., P.A. 997 8/31/00 1,370.88 1997
- -------------------------------------------------------------------------------------------------------------
910 Gardner, James W. 1,108 8/31/99 1,500.42 1994
- -------------------------------------------------------------------------------------------------------------
1001 Goldsmith, Stanley A. 1,210 11/30/99 1,663.75 1997
- -------------------------------------------------------------------------------------------------------------
1005 Gulfside Realty Company 589 9/30/99 785.33 1996
- -------------------------------------------------------------------------------------------------------------
900 IGIC Management Company 1,498 8/31/99 1,997.33 1996
- -------------------------------------------------------------------------------------------------------------
606 Jim E. Meeks, Jr. 1,828 11/30/00 2,208.83 1996
- -------------------------------------------------------------------------------------------------------------
1111 Lyons & Beaudry, P.A. 2,460 7/31/98 3,587.50 1995
- -------------------------------------------------------------------------------------------------------------
100 NationsBank N.A. (South) 54,048 3/09/01 67,447.02 1997
- -------------------------------------------------------------------------------------------------------------
301 NationsBank N.A. (South) 1,426 2/28/01 2,140.19 1994
- -------------------------------------------------------------------------------------------------------------
800 PaineWebber, Inc. 13,306 5/31/04 17,741.34 1994
- -------------------------------------------------------------------------------------------------------------
1010 PBCO, Inc. 4,972 1/31/99 6,799.21 1994
- -------------------------------------------------------------------------------------------------------------
1004 Pinnacle Financial Advisors 778 10/31/98 1,085.96 1995
- -------------------------------------------------------------------------------------------------------------
603 Rauscher Pierce Refsnes, Inc. 1,576 5/31/01 2,101.33 1998
- -------------------------------------------------------------------------------------------------------------
1200 Sarasota University Club, Inc. 13,407 4/28/01 14,865.02 N/A
- -------------------------------------------------------------------------------------------------------------
912 Scovill, H. William, P.A. 1,401 12/31/99 1,984.75 1995
- -------------------------------------------------------------------------------------------------------------
1020 Seapress, Inc. d/b/a Mercury Printing 1,581 2/28/99 2,020.58 1994
- -------------------------------------------------------------------------------------------------------------
906 Stacey's Buffet, Inc. 437 7/31/98 582.67 1996
- -------------------------------------------------------------------------------------------------------------
1003 Timmermans, Michel 488 11/30/99 549.00 1996
- -------------------------------------------------------------------------------------------------------------
1115 Trottier, Richard 586 99/99/99 878.57 1994
- -------------------------------------------------------------------------------------------------------------
911 U.S. Security & Associates, Inc. 584 12/31/99 778.67 1997
d/b/a Employer's Security Company, Inc.
- -------------------------------------------------------------------------------------------------------------
709 Udell Associates of Florida 1,055 10/31/00 1,494.58 1998
- -------------------------------------------------------------------------------------------------------------
909 Valuation Advisory Service, Inc. 653 1/31/99 897.88 1996
- -------------------------------------------------------------------------------------------------------------
1109 Viatical Capital, Inc. 3,008 12/31/98 4,032.67 1994
- -------------------------------------------------------------------------------------------------------------
610 Watson & Walker, Inc. 3,872 4/30/01 4,840.00 1996
- -------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
EXHIBIT O
OSHA LETTER
-----------
_________________, 1998
- --------------------------
313-1/2 Worth Avenue
Suite 1-B
Palm Beach, Florida 33480
Re: Transmittal of Information Regarding Asbestos-Containing Material
and Presumed Asbestos-Containing Material
Ladies and Gentlemen:
As you know, the Occupational Safety and Health Administration ("OSHA") has
enacted regulations (the "OSHA Regulations") which require building owners to
provide information regarding the presence, location and quantity of asbestos
containing material ("ACM") and presumed ACM ("PACM") to various building
occupants, including employers of employees who lease space within the owner's
building. In addition, the OSHA Regulations, specifically 29 C.F.R.
(S)1910.1001(j)(2)(ii) and 29 C.F.R. (S)1926.1101(n)(6), require building owners
to keep records of all information required to be maintained by the OSHA
Regulations and to transmit such records to subsequent owners at or before the
time of closing.
1605 MAIN STREET ASSOCIATES, a Florida joint venture ("Seller"), has, prior
to the date of this letter, provided Tricony Florida Corporation, a Florida
corporation, and ______________ (collectively, "Purchaser") with copies of
information required to be maintained and transmitted as described above
regarding ACM and PACM at the property located at 1605 Main Street, Sarasota,
Florida, and commonly known as the Ellis Building, including copies of notices
to tenants and any related asbestos sampling results and reports in our
possession (such information, notices and reports being referred to herein
collectively as the "Reports"). A list of such Reports is set forth on
SCHEDULE 1 attached hereto.
The undersigned makes no representation, warranty, promises, covenants,
agreements or guarantees of any kind or character whatsoever, express or
implied, oral or written, past, present or future, of, as to, concerning or with
respect to the information and documentation transmitted herewith including
without limitation, the accuracy or completeness of such Reports, the Reports'
compliance with the OSHA Regulations, or Seller's compliance with the OSHA
Regulations.
<PAGE>
We request that you acknowledge receipt of this letter and the Reports by
signing below and forwarding an executed copy to Seller.
Sincerely,
1605 MAIN STREET ASSOCIATES, a Florida joint
venture
By: First Capital Institutional Real Estate,
Ltd.-2, a Florida limited partnership
By: First Capital Financial Corporation, a
Florida corporation, its sole general
partner
By: ________________________________
Name: ________________________________
Its: ________________________________
By: First Capital Institutional Real Estate,
Ltd.-3, a Florida limited partnership
By: First Capital Financial Corporation, a
Florida corporation, its sole general
partner
By: ________________________________
Name: ________________________________
Its: ________________________________
2
<PAGE>
Acknowledged receipt of this letter and the
Reports this _____ day of _______________, 1998
TRICONY FLORIDA CORPORATION,
a Florida corporation
By: _____________________________
Name: ___________________________
Its: ____________________________
_________________________________
By: _____________________________
Name: ___________________________
Its: ____________________________
3
<PAGE>
SCHEDULE 1
----------
TO
--
OSHA LETTER
-----------
LIST OF REPORTS
---------------
1. Report of Carbon Monoxide Air Monitoring prepared by LAW Engineering and
Environmental Services, Inc. dated December 17, 1997.
2. Report of Indoor Air Quality Survey prepared by LAW Engineering and
Environmental Services, Inc. dated September 25, 1997.
3. Report of Limited Bulk Survey and Analysis for Asbestos-Containing
Materials prepared by LAW Engineering and Environmental Services, Inc.
dated August 25, 1997.
4. Report of Clearance Level Air Monitoring prepared by LAW Engineering and
Environmental Services, Inc. dated April 1, 1997.
5. Report of Clearance Level Air Monitoring prepared by LAW Engineering and
Environmental Services, Inc. dated March 20, 1997.
6. Report of Prevalent Level Air Monitoring prepared by LAW Engineering and
Environmental Services, Inc. dated October 22, 1996.
7. Report of Project Monitoring prepared by LAW Engineering and Environmental
Services, Inc. dated April 1, 1996.
8. Report of Prevalent Level Air Monitoring prepared by LAW Engineering and
Environmental Services, Inc. dated December 12, 1995.
9. Report of Prevalent Level Air Monitoring prepared by LAW Engineering and
Environmental Services, Inc. dated March 29, 1996 and March 14, 1996.
10. Report of Prevalent Level Air Monitoring prepared by LAW Engineering and
Environmental Services, Inc. dated July 10, 1995.
11. Report of Prevalent Level Air Monitoring prepared by LAW Engineering and
Environmental Services, Inc. dated January 12, 1994.
12. Report of Prevalent Level Air Monitoring prepared by LAW Engineering and
Environmental Services, Inc. dated June 8, 1993.
13. Report of Prevalent Level Air Monitoring prepared by LAW Engineering and
Environmental Services, Inc. dated February 16, 1995.
14. Confidential Report of Facility Survey to Identify Asbestos-Containing
Materials prepared by LAW Engineering and Environmental Services, Inc.
dated February 4, 1992.
15. Bulk Asbestos Analysis Report prepared by P.E.I. Associates, Inc. dated
June 21, 1989.
4
<PAGE>
EXHIBIT P
ENVIRONMENTAL REPORTS
---------------------
1. Report of Carbon Monoxide Air Monitoring prepared by LAW Engineering and
Environmental Services, Inc. dated December 17, 1997.
2. Report of Indoor Air Quality Survey prepared by LAW Engineering and
Environmental Services, Inc. dated September 25, 1997.
3. Report of Limited Bulk Survey and Analysis for Asbestos-Containing
Materials prepared by LAW Engineering and Environmental Services, Inc.
dated August 25, 1997.
4. Report of Clearance Level Air Monitoring prepared by LAW Engineering and
Environmental Services, Inc. dated April 1, 1997.
5. Report of Clearance Level Air Monitoring prepared by LAW Engineering and
Environmental Services, Inc. dated March 20, 1997.
6. Report of Prevalent Level Air Monitoring prepared by LAW Engineering and
Environmental Services, Inc. dated October 22, 1996.
7. Report of Project Monitoring prepared by LAW Engineering and Environmental
Services, Inc. dated April 1, 1996.
8. Report of Prevalent Level Air Monitoring prepared by LAW Engineering and
Environmental Services, Inc. dated December 12, 1995.
9. Report of Prevalent Level Air Monitoring prepared by LAW Engineering and
Environmental Services, Inc. dated March 29, 1996 and March 14, 1996.
10. Report of Prevalent Level Air Monitoring prepared by LAW Engineering and
Environmental Services, Inc. dated July 10, 1995.
11. Report of Prevalent Level Air Monitoring prepared by LAW Engineering and
Environmental Services, Inc. dated January 12, 1994.
12. Report of Prevalent Level Air Monitoring prepared by LAW Engineering and
Environmental Services, Inc. dated June 8, 1993.
13. Report of Prevalent Level Air Monitoring prepared by LAW Engineering and
Environmental Services, Inc. dated February 16, 1995.
14. Confidential Report of Facility Survey to Identify Asbestos-Containing
Materials prepared by LAW Engineering and Environmental Services, Inc.
dated February 4, 1992.
15. Bulk Asbestos Analysis Report prepared by P.E.I. Associates, Inc. dated
June 21, 1989.
<PAGE>
EXHIBIT Q
SECURITY DEPOSITS
-----------------
<TABLE>
<CAPTION>
- -----------------------------------------------------------------------
Suite # Tenant Name Security Deposit
- -----------------------------------------------------------------------
<C> <S> <C>
711 Bank America d/b/a American Bankcard, Inc. $ 4,696.73
- -----------------------------------------------------------------------
600 Bewley & Associates, P.A. 1,947.35
- -----------------------------------------------------------------------
914 Corbett, Susan 481.24
- -----------------------------------------------------------------------
705 Custima International Corp. 3,084.08
- -----------------------------------------------------------------------
612 Ford, Edwin L., P.A. 1,466.84
- -----------------------------------------------------------------------
1001 Goldsmith, Stanley A. 699.00
- -----------------------------------------------------------------------
1005 Gulfside Realty Company 840.32
- -----------------------------------------------------------------------
900 IGIC Management Company 2,137.14
- -----------------------------------------------------------------------
antenna Mobile Media Communications 642.00
- -----------------------------------------------------------------------
1004 Pinnacle Financial Advisors 956.29
- -----------------------------------------------------------------------
912 Scovill, H. William, P.A. 1,998.76
- -----------------------------------------------------------------------
906 Stacey's Buffet, Inc. 623.46
- -----------------------------------------------------------------------
1003 Timmermans, Michel 549.00
- -----------------------------------------------------------------------
1115 Trottier, Richard 781.92
- -----------------------------------------------------------------------
709 Udell Associates of Florida 1,646.23
- -----------------------------------------------------------------------
909 Valuation Advisory Service, Inc. 902.50
- -----------------------------------------------------------------------
1109 Viatical Capital, Inc. 3,733.86
- -----------------------------------------------------------------------
610 Watson & Walker, Inc. 5,178.80
- -----------------------------------------------------------------------
603 Rauscher Pierce Refsnes, Inc. 1,603.23
- -----------------------------------------------------------------------
- -----------------------------------------------------------------------
TOTAL $33,968.75
- -----------------------------------------------------------------------
</TABLE>
<PAGE>
EXHIBIT R
SPECIAL WARRANTY DEED
---------------------
PREPARED BY AND UPON
RECORDING, RETURN TO:
___________________________
___________________________
___________________________
___________________________
Property Tax I.D. No. _____
SPECIAL WARRANTY DEED
---------------------
THIS SPECIAL WARRANTY DEED is made the ____ day of _______, 199__ between
1605 MAIN STREET ASSOCIATES, a Florida joint venture, a __________________,
hereinafter referred to as "Grantor", and ___________________, a
______________________, whose address is ______________________, and whose
Taxpayer Identification Number is _______________________, hereinafter referred
to as "Grantee".
W I T N E S S E T H:
-------------------
That the Grantor, for and in consideration of the sum of Ten Dollars
($10.00) and other good and valuable consideration, to it in hand paid, the
receipt and sufficiency whereof is hereby acknowledged, by these presents does
grant, bargain, sell, alien, remise, release, convey and confirm unto Grantee,
and Grantee's successors and assigns forever, all that certain parcel of land
lying and being in the County of Sarasota, State of Florida, as more
particularly described as follows:
The land described in Exhibit "A" attached hereto and made a part
hereof.
TOGETHER WITH all the improvements, tenements, hereditaments, and
appurtenances thereto belonging.
SUBJECT TO those certain matters described in Exhibit "B" attached hereto
and made a part hereof and all other covenants, restrictions, easements,
limitations and other matters of record.
TO HAVE AND TO HOLD the above described premises unto the Grantee, its
successors and assigns, in fee simple forever.
And Grantor does hereby covenant with Grantee that Grantor has good right
and lawful authority to sell and convey said land; and Grantor does hereby
warrant the title to said land subject to the matters referred to above and will
defend the same against the lawful claims of all persons claiming by, through
and under Grantor but against none other.
62
<PAGE>
IN WITNESS WHEREOF, Grantor has caused this Special Warranty Deed to be
duly executed and delivered.
<TABLE>
<S> <C>
Signed in the presence of: GRANTOR:
1605 MAIN STREET ASSOCIATES, a Florida joint
venture
_________________________________
Name:____________________________ By: First Capital Institutional Real Estate, Ltd.-2,
a Florida limited partnership
_________________________________
Name:____________________________ By: First Capital Financial Corporation,
a Florida corporation, its sole general partner
By:_________________________
Name:_______________________
Its:________________________
By: First Capital Institutional Real Estate,
Ltd.-3, a Florida limited partnership
By: First Capital Financial Corporation, a
Florida corporation, its sole general
partner
By:_________________________
Name:_______________________
Its:________________________
</TABLE>
STATE OF )
) SS:
COUNTY OF )
The foregoing instrument was acknowledged before me this ____ day of
____________, 1998, by _______________________, as _______________________ of
____________________________, a _____________________________, as
_______________, of ________________________________, a
________________________, on behalf of said entity. He/She is personally known
to me or has produced _________________________ as identification.
__________________________________________
NOTARY PUBLIC
Printed Name: ____________________________
(Notarial Seal)
My Commission Expires: __________________
63
<PAGE>
EXHIBIT "A"
-----------
Legal Description
-----------------
Legal Description of Fee Parcel to be inserted here.
64
<PAGE>
EXHIBIT "B"
-----------
Permitted Exceptions
--------------------
1. Acts of Grantee, and those claiming by, through and under Grantee prior to
the date of delivery of the Deed.
2. General and special taxes and assessments which are not shown as existing
liens by the public records.
3. Rights of tenants under agreements of leases affecting the land described
in Exhibit A or any part thereof, and those claiming by, through and under
said tenants.
4. Zoning, building and other governmental and quasi-governmental laws, codes
and regulations.
5. Any claim that any portion of the property is sovereign lands of the State
of Florida including submerged, filled or artificially exposed lands and
lands accreted to such lands.
6. Covenants, conditions, restrictions, and private or public utility
easements of record.
7. Encroachments, overlaps, boundary line disputes, or other matters which
would be disclosed by an accurate survey or inspection of the Property.
8. Easements, or claims of easements, not shown by the public records.
9. Taxes and assessment for the year 1998 and subsequent years
65
<PAGE>
EXHIBIT S
LIST OF NEW LEASES
------------------
<TABLE>
<CAPTION>
Type of New Lease
Tenant Date of New Lease (Lease, Amendment, etc.)
- --------------------------------- --------------------------- ---------------------------
<S> <C> <C>
Jim E. Meeks, Jr. April 23, 1998 First Amendment
(successor-by-assignment from
Joseph P. Teague)
</TABLE>
66
<PAGE>
EXHIBIT T
DESIGNATED TENANTS
------------------
<TABLE>
<CAPTION>
Tenant Name
------------------------------------------------------------
<S> <C>
NationsBank N.A. (South)
------------------------------------------------------------
PainneWebber, Inc.
------------------------------------------------------------
Sarasota University Club
------------------------------------------------------------
</TABLE>
<PAGE>
EXHIBIT U
FORM SELLER ESTOPPEL CERTIFICATE
--------------------------------
_______________________
313 1/2 Worth Avenue
Suite 1-B
Palm Beach, Florida 33480
Re: [Name of Tenant]. Suite ___, Ellis Building,
1605 Main Street, Sarasota, Florida (the "Property")
Gentlemen:
Reference is herein made to that certain Real Estate Sale Agreement (the
"Agreement") dated ______________, 1998 by and between 1605 MAIN STREET
ASSOCIATES, a Florida joint venture ("Seller"), as seller, and _________________
(successor-in-interest by assignment thereof from Tricony Florida Corporation),
as purchaser ("Purchaser"), for the purchase and sale of the property known as
Ellis Building, 1605 Main Street, Sarasota, Florida (the "Property"). All
capitalized terms used herein but not defined herein shall have the meanings
ascribed to them in the Agreement. Pursuant to Section 9 of the Agreement,
Seller hereby represents and warrants to Purchaser, to the "Actual Knowledge of
Seller" (as defined in the Agreement) as follows:
1. The undersigned is the landlord under a lease with __________________
("Tenant") as described below:
a. Date of tenant's lease:____________________
b. Date of all amendments or modifications:________________________
________________________________________________________________
c. Leased premises: Suite No.________ Floor No.________
d. Leased premises approximate sq. ft.____________
e. Expiration date of lease:___________________
f. Unexercised renewal options:_________________ for______
_______ years each.
g. Security deposit currently held by Landlord: $_________
h. Advance or Prepaid Rent: $____________
i. Unused free rent/rent concessions_______________________________
________________________________________________________________
2. The above lease ([as amended as aforesaid], the "Lease") is in full
force and effect and has not (otherwise) been amended, modified, supplemented or
superseded, and constitutes the entire agreement between the undersigned and
Tenant with respect to said premises. There is no other agreement, oral or
written, (except for the agreements contained herein) between the undersigned
and the
<PAGE>
Tenant with respect to said premises or any other space at the above-referenced
property, except: [list any other space leased by tenant, including storage
space]. A true, correct and complete copy of the Lease is attached hereto as
EXHIBIT A.
3. The Tenant is not in default under the Lease, except as shown on
SCHEDULE I attached hereto. There is no defense, offset, claim or counterclaim
by or in favor of the Tenant against the undersigned under the Lease or against
the obligations of the Tenant against the undersigned under the Lease or against
the obligations of the Tenant under the Lease.
4. Seller has not received written notice from the Tenant of any material
default by Seller under the Lease which has not been cured as of the date of
this certificate ("Certificate").
5. The Tenant is in sole possession of the leased premises and has not
subleased all or any part of the leased premises, or assigned the Lease, except
as follows: [list assignments or sublease]
6. The monthly base rental due under the Lease is $_____ and has been paid
through ____________, 199___. All additional base rental, to-wit: estimated
monthly common area, maintenance and real estate taxes, payable in the amount of
$__________ per month at the present time, has been paid through _____________,
199___. In addition, monthly sales and use tax due under the Lease, payable in
the amount of $_________ per month at the present time, has been paid through
__________, 199__.
7. The Seller has received no written notice of any actions, voluntary or
otherwise, pending against the Tenant under the bankruptcy, reorganization,
moratorium of similar laws of the United States, any state thereof or any other
jurisdiction.
8. The Tenant has accepted possession and taken occupancy of the premises
and has commenced the payment of rents for all space subject to the Lease.
9. All improvements, build-outs, finished work and any other obligations
of the landlord under the Lease have been completed and to the best of the
knowledge of the undersigned have been paid for either by the undersigned or the
Tenant in full, except as follows: _____________________________
10. The "base year" for additional base rental under the Lease is 19__ and
the "basic costs" attributable to such "base year" is $_________________.
[Note: if Lease is a relatively new lease and the base year amounts have not
yet been determined, this provision will be modified to state the "base year"
and that the "basic costs" are to be determined.]
11. The Tenant has no expansion option or right of first refusal under
Lease to lease additional space, except as follows:
________________________________________________________________
________________________________________________________________
________________________________________________________________
This Certificate is executed by Seller solely for the benefit of Purchaser
and no third party (other than a "Permitted Assignee" [as defined in the
Agreement] provided that such Permitted Assignee shall have executed and
delivered to Seller at or prior to Closing an agreement assuming all of the
obligations of Purchaser under the Agreement in accordance with Section 11(B) of
the Agreement) shall have the benefit of any of the provisions of this
Certificate, nor is this Certificate made with the intent that any person other
than Purchaser (and such Permitted Assignee) rely thereon.
2
<PAGE>
This Certificate is delivered to Purchaser in connection with and subject
to the terms, provisions and limitations of the Agreement, including, without
limitation, Sections 9 and 11(P) thereof.
IN WITNESS WHEREOF, Seller has executed this Certificate as of this ____
day of ____________, 1998.
SELLER:
1605 MAIN STREET ASSOCIATES, a Florida joint
venture
By: First Capital Institutional Real Estate,
Ltd.-2, a Florida limited partnership
By: First Capital Financial Corporation, a
Florida corporation, its sole general
partner
By: ________________________________
Name: ________________________________
Its: ________________________________
By: First Capital Institutional Real Estate,
Ltd.-3, a Florida limited partnership
By: First Capital Financial Corporation, a
Florida corporation, its sole general
partner
By: ________________________________
Name: ________________________________
Its: ________________________________
3
<PAGE>
EXHIBIT V
ASSIGNMENT AND ASSUMPTION OF
----------------------------
LESSEE'S INTEREST IN GROUND LEASE
---------------------------------
This instrument prepared by and
after recording return to:
_____________________________
_____________________________
_____________________________
_____________________________
_____________________________ This Space for Recording
_____________________________________________________________________________
ASSIGNMENT AND ASSUMPTION OF
----------------------------
LESSEE'S INTEREST IN GROUND LEASE
---------------------------------
THIS ASSIGNMENT AND ASSUMPTION OF LESSEE'S INTEREST IN GROUND LEASE
(this "Assignment") is entered into as of the ______________ day of __________,
1998, by and between 1605 MAIN STREET ASSOCIATES, a Florida joint venture
("Assignor"), having offices at Two North Riverside Plaza, Chicago, Illinois
60606, and __________________ ("Assignee"), with an office at 313 1/2 Worth
Avenue, Suite 1-B, Palm Beach, Florida 33480.
RECITALS:
--------
WHEREAS, Assignor is the owner of the lessee's interest in and to a
leasehold estate in certain real property located in the City of Sarasota,
County of Sarasota, State of Florida, which parcel is more particularly
described in attached EXHIBIT A (the "Leasehold Estate") pursuant to the
provisions of that certain Lease Agreement, originally by and between Sam
Fleischer, Esther L. Fleischer, Bate Braly, Janet R. Braly, Robert L. Garrison
and Gertrude L. Garrison, collectively being the "Lessors" therein, and Sarasota
Bank and Trust Company, as "Lessee" therein, dated August 15, 1955, and recorded
in Official Records Book 317, at Page 319, of the Public Records of Sarasota
County, Florida (the "Original Lease Agreement"), as amended by that certain
Modification of Lease, originally by and between Sarasota Bank & Trust Company,
as Executor of the Estate of Sam Fleischer, Esther L. Fleischer, Bate Braly,
Janet R. Braly, Robert L. Garrison, and Gertrude L. Garrison, collectively being
the "Lessors" therein, and Sarasota Bank & Trust Company, as "Lessee" therein,
dated January 1, 1968, and recorded in Official Records Book 744, at Page 843,
of the Public Records of Sarasota County, Florida (the Original Lease Agreement,
as modified by such Modification to Lease, is hereinafter referred to as the
"Ground Lease").
WHEREAS, Assignor desires to assign to Assignee, and Assignee desires to
assume from Assignor, the Leasehold Estate subject to the terms, conditions and
provisions hereinafter set forth.
NOW, THEREFORE, for and in consideration of the sum of Ten Dollars ($10)
and other good and valuable considerations in hand paid and delivered by
Assignee to Assignor, the receipt and sufficiency of which are hereby
acknowledged, Assignor and Assignee hereby agree as follows:
<PAGE>
1. Assignment. Assignor hereby assigns to Assignee the entire right, title
and interest of Assignor in and to the Leasehold Estate as applicable to the
period from and after the date hereof.
2. Assumption. Assignee hereby assumes all of the covenants, agreements
and obligations of Assignor under or in connection with the Leasehold Estate as
applicable to the period from and after the date hereof.
3. Indemnification. Assignee hereby unconditionally, absolutely and
irrevocably agrees to indemnify, defend and hold Assignor harmless of, from and
against any and all costs, claims, obligations, damages, penalties, causes of
action, losses, injuries, liabilities and expenses, including, without
limitation, reasonable attorney's fees and expenses, arising out of, in
connection with or accruing under the Leasehold Estate on or after the date
hereof.
4. Enforcement. If Assignor or Assignee must resort to a court of law or
equity in order to enforce the provisions of this Assignment as against the
other, the non-prevailing party shall pay the reasonable attorney's fees and
expenses of the prevailing party.
5. Third Parties. Except as set forth in Section 11 of this Assignment, no
third party shall have the benefit of any of the provisions of this Assignment,
nor is this Assignment made with the intent that any person or entity other than
Assignor or Assignee rely hereon.
6. Limited Liability. By accepting this Assignment, Assignee expressly
understands and agrees that any recovery against Assignor that Assignee may be
entitled to as a result of any claim, demand or cause of action that Assignee
may have against Assignor with respect to this Assignment shall only be
recoverable against Seller (a) in an amount not in excess of One Million Dollars
($1,000,000), and (b) if such claim, demand or cause of action is made on or
before the one hundred eightieth (180th) day following the date of this
Assignment.
7. Successors and Assigns. This Assignment shall be binding upon and inure
to the benefit of the parties hereto and their respective successors and
assigns.
[the remainder of this page is intentionally blank]
2
<PAGE>
[Signature page attached to Assignment and Assumption of
Lessee's Interest In Ground Lease]
IN WITNESS WHEREOF, Assignor and Assignee have executed this Assignment the
day and year first above written.
WITNESS: ASSIGNOR:
1605 MAIN STREET ASSOCIATES, a Florida joint
venture
By: First Capital Institutional Real Estate,
Ltd.-2, a Florida limited partnership
By: First Capital Financial Corporation, a
Florida corporation, its sole general
partner
______________________ By:_________________________
Print Name:___________ Name:_______________________
Its:________________________
By: First Capital Institutional Real Estate,
Ltd.-3, a Florida limited partnership
By: First Capital Financial Corporation, a
Florida corporation, its sole general
partner
______________________ By:_________________________
Print Name:___________ Name:_______________________
Its:________________________
ASSIGNEE:
____________________________
______________________ By:_________________________
Print Name:___________ Name:_______________________
Its:________________________
______________________
Print Name:___________
3
<PAGE>
EXHIBIT W
FORM GROUND LESSOR ESTOPPEL CERTIFICATE
---------------------------------------
1605 MAIN STREET ASSOCIATES, a Florida joint venture
c/o Equity Office Properties Management Corp.
Two North Riverside Plaza
Suite 2200
Chicago, Illinois 60606
Tricony Florida Corporation
313 1/2 Worth Avenue
Suite 1-B
Palm Beach, Florida 33480
Re: Ellis Building, 1605 Main Street, Sarasota, Florida
(the "Property")
Gentlemen:
At the request of 1605 MAIN STREET ASSOCIATES, a Florida joint venture
(together with its successors and assigns, "Lessee"), made in connection with
the proposed assignment and assumption of the Lessee's interest in the "Ground
Lease" (as hereinafter defined) in conjunction with the sale of the Property to
Tricony Florida Corporation (together with its successors and assigns,
"Purchaser"), the undersigned hereby certifies to Lessee and Purchaser and
agrees as follows recognizing that Lessee and Purchaser will rely on the
information contained herein.
1. That certain Lease Agreement dated August 15, 1955, and recorded in
Official Records Book 317, at Page 319, of the Public Records of Sarasota
County, Florida, as amended by that certain Modification of Lease dated January
1, 1968, and recorded in Official Records Book 744, at Page 843, of the Public
Records of Sarasota County, Florida (such Lease Agreement, as modified by such
Modification to Lease, is hereinafter referred to as the "Ground Lease") is in
full force and effect, and constitutes the entire agreement between the
undersigned and Lessee with respect to the premises more particularly described
therein. A true, correct and complete copy of the Ground Lease is attached
hereto as Exhibit A.
2. The annual rent payable under the Ground Lease is $30,000, payable in
equal monthly installments of $2,500, and has been paid through ________ ___,
1998.
3. The term of the Ground Lease commenced on January 1, 1956. The
original term of the Ground Lease, by its terms, was automatically extended
through December 31, 2007, subject to the right on the part of the lessee
thereunder to renew the term of the Ground Lease thereafter in subsequent
successive terms of ten (10) years each, but not to exceed a period of fifty-
seven (57) years after the original term of the Ground Lease.
4. The undersigned hereby acknowledges that the Lessee will be assigning
to Purchaser, and Purchaser will be assuming from Lessee, in the recordable form
of Assignment And Assumption Of Lessee's Interest In Ground Lease attached
hereto as Exhibit B (the "Assignment"), any and all of its rights, obligations
and liabilities under the Ground Lease from and after the date of the
Assignment, and the undersigned hereby consents to such assignment and
assumption and agrees that effective upon the effective the date of the
Assignment (as evidenced by the recordation thereof in the Public Records of
Sarasota County, Florida), the undersigned shall thereby, without any further
action being necessary, release, remise, acquit, satisfy and forever discharge,
and shall be deemed to have released, remised,
<PAGE>
1605 MAIN STREET ASSOCIATES, a Florida joint venture
Tricony Florida Corporation
______________, 1998
Page 2
acquitted, satisfied and forever discharged, any actions, claims, liabilities,
obligations and damages whatsoever which the undersigned ever had, now has or
may have in the future against the Lessee arising out of the Ground Lease.
The undersigned understands that Lessee and Purchaser will rely on the
certifications and agreements set forth above and that all such certifications
and agreements shall inure to the benefit of Lessee and Purchaser and their
respective successors and assigns, and shall be binding upon the undersigned,
its successors, heirs, legal representatives and assigns.
Sincerely,
[Ground Lessor]
By: ________________________________
Name: __________________________
Title: __________________________
Date: __________________________
<PAGE>
Exhibit A
---------
GROUND LEASE
(attach Ground Lease)
<PAGE>
Exhibit B
---------
|
|
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This instrument prepared by and |
after recording return to: |
|
|
_______________________________ |
_______________________________ |
_______________________________ |
_______________________________ | This Space for Recording
_______________________________ | ------------------------
________________________________________________________________________________
ASSIGNMENT AND ASSUMPTION OF
----------------------------
LESSEE'S INTEREST IN GROUND LEASE
---------------------------------
THIS ASSIGNMENT AND ASSUMPTION OF LESSEE'S INTEREST IN GROUND LEASE (this
"Assignment") is entered into as of the ______________ day of __________, 1998,
by and between 1605 MAIN STREET ASSOCIATES, a Florida joint venture
("Assignor"), having offices at Two North Riverside Plaza, Chicago, Illinois
60606, and __________________ ("Assignee"), with an office at 313 1/2 Worth
Avenue, Suite 1-B, Palm Beach, Florida 33480.
RECITALS:
--------
WHEREAS, Assignor is the owner of the lessee's interest in and to a
leasehold estate in certain real property located in the City of Sarasota,
County of Sarasota, State of Florida, which parcel is more particularly
described in attached EXHIBIT A (the "Leasehold Estate") pursuant to the
provisions of that certain Lease Agreement, originally by and between Sam
Fleischer, Esther L. Fleischer, Bate Braly, Janet R. Braly, Robert L. Garrison
and Gertrude L. Garrison, collectively being the "Lessors" therein, and Sarasota
Bank and Trust Company, as "Lessee" therein, dated August 15, 1955, and recorded
in Official Records Book 317, at Page 319, of the Public Records of Sarasota
County, Florida (the "Original Lease Agreement"), as amended by that certain
Modification of Lease, originally by and between Sarasota Bank & Trust Company,
as Executor of the Estate of Sam Fleischer, Esther L. Fleischer, Bate Braly,
Janet R. Braly, Robert L. Garrison, and Gertrude L. Garrison, collectively being
the "Lessors" therein, and Sarasota Bank & Trust Company, as "Lessee" therein,
dated January 1, 1968, and recorded in Official Records Book 744, at Page 843,
of the Public Records of Sarasota County, Florida (the Original Lease Agreement,
as modified by such Modification to Lease, is hereinafter referred to as the
"Ground Lease").
WHEREAS, Assignor desires to assign to Assignee, and Assignee desires to
assume from Assignor, the Leasehold Estate subject to the terms, conditions and
provisions hereinafter set forth.
NOW, THEREFORE, for and in consideration of the sum of Ten Dollars ($10)
and other good and valuable considerations in hand paid and delivered by
Assignee to Assignor, the receipt and sufficiency of which are hereby
acknowledged, Assignor and Assignee hereby agree as follows:
1. Assignment. Assignor hereby assigns to Assignee the entire right,
title and interest of Assignor in and to the Leasehold Estate as applicable to
the period from and after the date hereof.
<PAGE>
2. Assumption. Assignee hereby assumes all of the covenants, agreements
and obligations of Assignor under or in connection with the Leasehold Estate as
applicable to the period from and after the date hereof.
3. Indemnification. Assignee hereby unconditionally, absolutely and
irrevocably agrees to indemnify, defend and hold Assignor harmless of, from and
against any and all costs, claims, obligations, damages, penalties, causes of
action, losses, injuries, liabilities and expenses, including, without
limitation, reasonable attorney's fees and expenses, arising out of, in
connection with or accruing under the Leasehold Estate on or after the date
hereof.
4. Enforcement. If Assignor or Assignee must resort to a court of law or
equity in order to enforce the provisions of this Assignment as against the
other, the non-prevailing party shall pay the reasonable attorney's fees and
expenses of the prevailing party.
5. Third Parties. Except as set forth in Section 11 of this Assignment,
no third party shall have the benefit of any of the provisions of this
Assignment, nor is this Assignment made with the intent that any person or
entity other than Assignor or Assignee rely hereon.
6. Limited Liability. By accepting this Assignment, Assignee expressly
understands and agrees that any recovery against Assignor that Assignee may be
entitled to as a result of any claim, demand or cause of action that Assignee
may have against Assignor with respect to this Assignment shall only be
recoverable against Seller (a) in an amount not in excess of One Million Dollars
($1,000,000), and (b) if such claim, demand or cause of action is made on or
before the one hundred eightieth (180th) day following the date of this
Assignment.
7. Successors and Assigns. This Assignment shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and
assigns.
[the remainder of this page is intentionally blank]
<PAGE>
[Signature page attached to Assignment and Assumption of
Lessee's Interest In Ground Lease]
IN WITNESS WHEREOF, Assignor and Assignee have executed this Assignment the
day and year first above written.
WITNESS: ASSIGNOR:
1605 MAIN STREET ASSOCIATES, a Florida joint
venture
By: First Capital Institutional Real Estate,
Ltd.-2, a Florida limited partnership
By: First Capital Financial Corporation, a
Florida corporation, its sole general
partner
__________________________ By: ________________________________
Print Name:_______________ Name: ________________________________
Its: ________________________________
By: First Capital Institutional Real Estate,
Ltd.-3, a Florida limited partnership
By: First Capital Financial Corporation, a
Florida corporation, its sole general
partner
__________________________ By: ________________________________
Print Name:_______________ Name: ________________________________
Its: ________________________________
ASSIGNEE:
__________________________ _________________________________________________
Print Name:_______________
By: ___________________________________________
__________________________ Name: ___________________________________________
Print Name:_______________ Its: ___________________________________________
<PAGE>
EXHIBIT A
---------
LEGAL DESCRIPTION
-----------------
