SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): December 23, 1999
CARLYLE REAL ESTATE LIMITED PARTNERSHIP - XV
------------------------------------------------------
(Exact name of registrant as specified in its charter)
Illinois 0-16111 36-3314827
- ------------------- -------------- --------------------
(State or other) (Commission (IRS Employer
Jurisdiction of File Number) Identification No.)
Organization
900 N. Michigan Avenue, Chicago, Illinois 60611-1575
-----------------------------------------------------
(Address of principal executive office)
Registrant's telephone number, including area code: (312) 915-1987
-------------------------------------------------------------------
<PAGE>
CALIFORNIA PLAZA
WALNUT CREEK, CALIFORNIA
------------------------
ITEM 2. ACQUISITION OR DISPOSITION OF ASSETS. On December 23, 1999, C-C
California Plaza Partnership (the "Venture"), a joint venture between
Carlyle Real Estate Limited Partnership - XV (the "Partnership") and an
unaffiliated venture partner, sold the land, building and related
improvements of the California Plaza office building (the "Property"),
located in Walnut Creek, California. The purchaser of the Property,
California Plaza at Walnut Creek, Inc., a Florida corporation, is not
affiliated with the Partnership or its General Partners, and the sale price
was determined by arm's-length negotiations. The Property is an
approximate 368,000 square foot office building, and as of the date of the
sale was approximately 88% occupied.
The sale price was $71,500,000 paid in cash at closing. Upon
closing, the Venture received cash of approximately $6,800,000 (net of
closing costs but before prorations). The cash received was also net of
the repayment of the mortgage loan secured by the Property of approximately
$64,000,000. The terms of the C-C California Plaza venture agreement
generally provide that the unaffiliated venture partner does not
participate in any sale proceeds until (i) the Partnership's cumulative
preferred return, as defined, has been satisfied and (ii) the Partnership
receives up to an additional $20,000,000 in sale proceeds. Therefore, the
Partnership was entitled to and received all of the proceeds from the sale
of the Property. Additionally, in connection with the sale of the
Property, the Venture received the balance (approximately $3,400,000) in a
reserve account that had been controlled by the mortgage lender for the
payment of future costs, including tenant improvements, leasing commissions
and capital improvements for the Property. The terms of the C-C California
Plaza venture agreement generally provide that net cash receipts will be
distributed to the Partnership until the Partnership's cumulative preferred
return, as defined, has been satisfied. Therefore, the Partnership also
received the funds refunded from the reserve account.
The Property was classified as held for sale as of December 31, 1996,
and therefore, has not been subject to continued depreciation from such
date for financial reporting purposes. As a result of this sale, the
Venture expects to recognize a gain of approximately $23,500,000 and
$50,000,000 for financial reporting and Federal income tax purposes,
respectively. The Partnership's share of such items is expected to be
approximately $23,500,000 and $30,000,000, respectively. As is customary
in such transactions, the Venture has agreed to certain representations,
warranties and covenants with a stipulated survival period, which expire on
December 25, 2000. Although it is not expected, the Venture and the
Partnership may ultimately have some liability under such representations,
warranties and covenants, which are limited to actual damages and shall in
no event, exceed $2,000,000. In addition, the Partnership made certain
representations and indemnities to the purchaser and the title insurance
company relating to the ownership of the Property.
The Partnership Agreement of the Partnership provides that subject to
certain conditions, the General Partners shall receive as a distribution
from the proceeds from the sale of a real property up to 3% of the selling
price, and that the remaining proceeds (after expenses and retained working
capital) will be distributed 85% to the Holders of Interests and 15% to the
General Partners. However, prior to such distributions being made, the
Holders of Interests are entitled to receive 99% of net sale or refinancing
proceeds and the General Partners shall receive 1% until the Holders of
Interests have received (i) cash distributions of sale or refinancing
proceeds in an amount equal to the aggregate initial capital investment in
the Partnership of the Holders of Interests and (ii) cumulative cash
distributions from the Partnership's operations which, when combined with
the net sale or refinancing proceeds previously distributed, equal a 6%
annual return on the average adjusted capital investment of the Holders of
Interests for each year (their initial capital investment reduced by sale
or refinancing proceeds previously distributed) commencing with the third
fiscal quarter of 1986. Since the Holders of Interests have not yet
received, and are not expected to receive, the amounts stipulated in items
(i) and (ii) above, the General Partners are not expected to receive any
share of the proceeds from the sale of the Property. If upon the
completion of the liquidation of the Partnership and the distribution of
the Partnership funds, the Holders of Interests have not received the
amounts in (i) and (ii) above, the General Partners will be required to
return all or a portion of the 1% distribution of net sale or refinancing
proceeds described above up to an amount equal to such deficiency in
payments to the Holders of Interests pursuant to (i) and (ii) above. As of
the date of this report, the General Partners have received net sale or
refinancing proceeds aggregating $170,311.
<PAGE>
ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS
(a) Financial Statements. Not Applicable
(b) Proforma financial information - Narrative
As a result of the sale of the Property, after December 23,
1999, generally there will be no further rental income, interest income,
mortgage and other interest, property operating expenses and amortization
of deferred expenses recorded for the Property in the consolidated
financial statements of the Partnership, which for the Partnership's most
recent fiscal year (the year ended December 31, 1998) were approximately
$9,373,000, $124,000, $5,731,000, $3,608,000 and $490,000, respectively.
Rental income, interest income, mortgage and other interest, property
operating expenses and amortization of deferred expenses relating to the
Property included in the nine months ended September 30, 1999, in the
Partnership's consolidated financial statements were approximately
$7,254,000, $103,000, $4,655,000, $2,605,000 and $350,000, respectively.
Such operating results reflect the classification of the Property as held
for sale as of December 31, 1996, and therefore, not subject to continued
depreciation as of such date. Additionally, as a result of such sale,
generally there are expected to be substantially no further assets and
liabilities related to the joint venture, which at September 30, 1999,
consisted of cash and other current assets of approximately $4,315,000,
property held for sale or disposition of approximately $46,303,000, accrued
rents receivable and other long-term assets of approximately $1,759,000,
current portion of long-term debt of approximately $63,584,000, other
current liabilities of approximately $1,166,000 and tenant security
deposits of approximately $304,000.
(c) Exhibits
10.1 Purchase Agreement between C-C California Plaza
Partnership and California Plaza at Walnut Creek, Inc. entered into as of
December 16, 1999.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the Registrant has duly caused this report to be signed on its behalf by
the undersigned thereunto duly authorized.
CARLYLE REAL ESTATE LIMITED PARTNERSHIP - XV
BY: JMB Realty Corporation
Corporate General Partner
By: GAILEN J. HULL
Gailen J. Hull
Senior Vice President and
Principal Accounting Officer
Date: January 6, 2000
EXHIBIT 10.1
- ------------
(Carlyle-XV)
PURCHASE AGREEMENT
--------------------------------------------
(California Plaza; Walnut Creek, California)
THIS PURCHASE AGREEMENT ("Agreement") is made and entered into as of
December 16, 1999 (the "Effective Date") by and between C-C CALIFORNIA
PLAZA PARTNERSHIP, a California general partnership (hereinafter called
"Seller"), and CALIFORNIA PLAZA AT WALNUT CREEK, INC., a Florida
corporation (hereinafter called "Buyer").
R E C I T A L S
---------------
A. Seller is the owner of that certain real property located in
the City of Walnut Creek, County of Contra Costa, State of California,
consisting primarily of an office building sometimes known as "California
Plaza".
B. Buyer desires to purchase such premises on the terms and
conditions hereinafter documented.
NOW, THEREFORE, in consideration of the mutual undertakings of
the parties hereto, it is hereby agreed as follows:
1. Purchase and Sale. Seller shall sell to Buyer, and Buyer shall
purchase from Seller, that certain property located in the State of
California, County of Contra Costa, City of Walnut Creek, and commonly
known as "California Plaza", comprised of the following (hereinafter,
collectively, the "Property"), all upon the terms, covenants and conditions
hereinafter set forth:
(a) that certain real property described in Exhibit "A",
attached hereto and made a part hereof and all rights, easements and
appurtenances pertaining thereto, including but not limited to any right,
title or interest of Seller in and to any strips and gores and any open or
proposed adjacent streets, alleys or rights-of-way , subject to the
Permitted Exceptions (as hereinafter defined) ("Land");
(b) all right, title and interest of Seller in and to the
buildings, improvements, structures and fixtures ("Improvements") located
on the Land, subject to any rights thereto which a tenant may have pursuant
to the terms of its Lease;
(c) all right, title and interest of Seller in and to any
leases, licenses and concession agreements, including all amendments,
modifications, extensions and addenda to same, all guarantees of same, and
all security deposits pertaining to same (hereinafter collectively referred
to as the "Leases") of portions of the Land or Improvements; and
(d) all right, title and interest of Seller in and to those
items of personal property described in Exhibit "B" attached hereto and
made a part hereof, all right, title and interest of Seller in and to the
name "California Plaza" and to the internet website commonly known as
"Calplaza.com", and, to the extent assignable, all right, title and
interest of Seller in and to all permits, entitlements, warranties,
business licenses, plans and specifications, contract rights, agreements,
tenant lists, advertising material and telephone exchange numbers relating
solely to the Property, but excluding personal property owned by tenants in
their capacity as tenants (collectively, the "Personal Property").
<PAGE>
2. Purchase Price.
A. The purchase price (the "Purchase Price") for the
Property shall be the sum of Seventy One Million Five Hundred Thousand and
No/100 Dollars ($71,500,000.00).
3. Payment of Purchase Price. The Purchase Price shall be paid to
Seller by Buyer as follows:
A. Deposit. Within two (2) business days of the Effective
Date (as hereinafter defined), Buyer shall deliver $200,000 (together with
all interest thereon, the "Deposit") to Chicago Title Company, 171 North
Clark Street, Chicago, Illinois 60601-3294, Attention: Charles Vachout
(which company, in its capacity as escrow holder hereunder, is called
"Escrow Holder"). The Deposit hereunder shall be made by Buyer to Escrow
Holder pursuant to wire transfer of immediately available federal funds and
the amounts so deposited shall be held by Escrow Holder as a deposit
against the Purchase Price in accordance with the terms and provisions of
this Agreement. At all times in which the Deposit is being held by the
Escrow Holder, the Deposit shall be invested by Escrow Holder in the
following investments ("Approved Investments"): (i) United States Treasury
obligations, (ii) United States Treasury-backed repurchase agreements
issued by a major national money center banking institution reasonably
acceptable to Seller, or (iii) such other manner as may be reasonably
agreed to by Seller and Buyer. The Deposit shall be disposed of by Escrow
Holder only as provided in this Agreement.
B. Closing Payment. The Purchase Price, as adjusted by the
application of the Deposit and by the prorations and credits specified
herein, shall be paid by wire transfer on the "Closing Date", as
hereinafter defined (the amount to be paid under this Paragraph 3(B) being
herein called the "Closing Payment").
4. Conditions Precedent
A. Title Matters.
(1) Title Report, Survey and UCC Reports. Seller has
delivered to Buyer a current preliminary title report ("Preliminary Title
Report") covering the Property from Chicago Title Company (which company,
in its capacity as title insurer hereunder, is herein called the "Title
Company"). In addition, Seller has delivered to Buyer that certain survey
of the Property dated May, 1999, prepared by Aliquot ("Initial Survey").
No later than December 13, 1999, Seller shall cause the Initial Survey, at
Seller's sole cost and expense, be updated and certified to both Buyer and
the Title Company ("Survey"). The Survey shall contain the certification
set forth on Exhibit "K" attached hereto and made a part hereof. If Buyer
shall fail to deliver a Title Objection Notice (as hereinafter defined)
setting forth those title and survey matters to which Buyer objects on or
before December 13, 1999 ("Title Review Period"), Buyer shall be deemed to
have disapproved the exceptions to title shown on the Preliminary Title
Report and the matters disclosed on the Initial Survey. If the Preliminary
Title Report does not already so provide, no later than December 13, 1999,
Buyer shall cause the Title Company to reissue the Preliminary Title Report
to include an obligation to provide (i) a CLTA 100 Comprehensive
Endorsement (or comparable endorsement), (ii) a CLTA 123.2 Zoning
(Completed Structure) Endorsement modified to include parking, (iii)
extended coverage, (iv) a contiguity endorsement, (v) an access
endorsement, (vi) a tax parcel endorsement, (vii) an endorsement insuring
the "gap" period, (viii) a same as survey endorsement, (ix) an endorsement
("Purchase Right Endorsement") with regard to the Purchase Right (as
hereinafter defined), and (x) any other endorsement reasonably requested by
Buyer. Prior to the expiration of the Due Diligence Period, Buyer, at
Buyer's sole cost and expense shall cause to be delivered to Buyer UCC
searches in the applicable recording offices and copies of any financing
statements filed against the Property in the name of the Property, Seller
and Seller's general partner (collectively, the "UCC Report").
<PAGE>
(2) Additional Title Matters. Approval by Buyer of any
additional exceptions to title or survey matters first disclosed after the
expiration of the Title Review Period, including, without limitation, any
new matters of survey revealed by the Survey, shall be a condition
precedent to Buyer's obligation to purchase the Property. Unless Buyer
gives written notice that it approves any such additional exceptions to
title or survey matters, stating the exceptions or matters so approved,
within (5) business days after receipt of written notice thereof (provided
that the Closing Date shall be extended up to December 29, 1999 to allow
for such five (5) business day period (or portion thereof), if necessary),
Buyer shall be deemed to have disapproved said additional title or survey
matters.
(3) Title Objections. If Buyer shall disapprove any
title or survey matters pursuant to this Paragraph 4, Buyer shall give
written notice thereof ("Title Objection Notice") to Seller within the time
periods provided for in Para-graphs 4(A)(1) or 4(A)(2), as applicable.
Upon receipt by Seller of a Title Objection Notice given in a timely
manner, then Seller shall have until the sooner to occur of (1) five (5)
business days from receipt of such Title Objection Notice and (2) the
Closing Date, within which to notify Buyer as to each disapproved matter
pursuant to this Paragraph 4 either that (i) Seller elects not to cause
such disapproved matter to be removed as of the Closing Date (provided
Seller shall be obligated to remove any existing mortgages or deeds of
trust securing loans obtained by or assumed by Seller, any mechanic's liens
for work by or on behalf of Seller, and any tax or judgement liens against
Seller that are secured in whole or in part by the Property or any portion
thereof, and further provided Seller shall be obligated to bond over any
mechanic's liens for work by or on behalf of third parties that are secured
in whole or in part by the Property or any portion thereof), or (ii) Seller
intends to either (a) use commercially reasonable efforts to cause such
disapproved matter to be removed on the Closing Date, or (b) obtain a title
endorsement (if available and if acceptable to Buyer in Buyer's sole and
absolute discretion) insuring over such disapproved matter. Seller shall
have no liability except as expressly set forth herein, if for any reason,
after electing under (ii) above, such additional disapproved matters are
not removed or insured over as of the Closing Date. Failure to deliver any
written notification by Seller of its election within such period shall be
deemed to be an election not to cause any such additional disapproved
matters to be removed. If Seller elects not to cause any or all such
additional disapproved matters to be removed or insured over as aforesaid,
Buyer shall have until the sooner to occur of (1) two (2) business days
from receipt of written notice thereof (or from the date of Seller's deemed
election as aforesaid) and (2) the Closing Date, within which to notify
Seller in writing either that (x) Buyer revokes its disapproval and will
proceed with the purchase of the Property without any reduction in the
Purchase Price and will take subject to such matters, or (y)Buyer
terminates this Agreement (and thereupon the Deposit shall be delivered to
Buyer and, except for the Surviving Obligations (as hereinafter defined),
this Agreement shall thereupon terminate). Failure to deliver any written
notification by Buyer of its election within such period shall be deemed to
be an election to terminate this Agreement as set forth above.
(4) Permitted Exceptions. All matters set forth on the
Preliminary Title Report which are approved by Buyer in accordance with
this Paragraph 4(A) (except for real estate taxes and assessments that are
to be prorated at the "Closing" (as hereinafter defined)), are herein
called the "Permitted Exceptions". The term Permitted Exceptions shall
additionally include any title matters objected to by Buyer, which
objections are subsequently waived by Buyer. Buyer shall have the option,
exercisable in Buyer's sole and absolute discretion, to waive the condition
precedent set forth in this Paragraph 4(A) by written notice to Seller. In
the event of such waiver, such condition shall be deemed satisfied.
<PAGE>
(5) Exceptions to Title. Buyer shall be obligated to
accept title to the Property, subject to the following exceptions to title:
(a) Real estate taxes and assessments for the
year in which the Closing occurs, not yet due and payable; and
(b) The Permitted Exceptions.
B. Due Diligence Reviews. Buyer shall have until 5:00 p.m.
(Central time) on December 16, 1999 (the "Due Diligence Period") within
which to perform and complete all of Buyer's due diligence examinations,
reviews and inspections of all matters pertaining to the purchase of the
Property, including all leases, service contracts, and all physical,
environmental and compliance matters and conditions respecting the Property
(other than title and survey matters which shall be governed by the
provisions of Paragraph 4(A) above). During the Due Diligence Period,
Buyer and its employees, agents, contractors and consultants may conduct
such inspections and investigations of the Property as Buyer deems
necessary or desirable in connection with its acquisition of the Property,
in such scope and detail as may be required by Buyer in its sole and
absolute discretion to satisfy itself with all financial, legal and other
aspects of the Property, subject to the provisions of this Paragraph 4(B).
During the Due Diligence Period, Buyer and its employees, agents,
contractors and consultants shall have the right to enter the Property from
time to time and, at Buyer's sole cost, to conduct studies, surveys, tests
and inspections thereto, including, but not limited to, tests for Hazardous
Materials (as hereinafter defined), provided, however, Buyer is not
permitted to perform any intrusive testing, including, without limitation,
a Phase II environmental assessment or boring, without (i) submitting to
Seller the scope and inspections for such testing; and (ii) obtaining the
prior written consent of Seller. Any entry by Buyer upon the Property
shall be scheduled with, coordinated by and, at Seller's option, attended
by, Seller and shall comply with all conditions of the Leases. In the
course of such investigations, Buyer shall use commercially reasonable
efforts not to interfere with or disrupt the business of the tenants. In
the course of its investigations Buyer may make inquiries to third parties
including, without limitation, contractors, property managers, parties to
contracts, and municipal, local and other government officials and
representatives, and Seller consents to such inquiries. During the Due
Diligence Period, the Buyer may interview the tenants of the Property,
provided that all such interviews are scheduled with, coordinated by and,
at Seller's option, attended by, Seller, shall comply with all conditions
of the Leases and shall in any event use commercially reasonable efforts
not to interfere with or disrupt the business of the tenants. In no event
shall Buyer contact any tenant directly without the prior consent of
Seller, which consent shall not be unreasonably withheld, delayed, or
conditioned. Seller and the Seller's property manager shall make
themselves available to attend such interviews, if they elect to attend,
upon twenty-four (24) hours notice from Buyer. Such interviews shall be
during the normal or customary business hours of the tenant or other
parties to be interviewed, and Seller shall provide Buyer twenty-four (24)
hours notice of the time of each interview if Seller schedules such
interview. Buyer agrees to protect and be responsible for any and all
claims, losses, damages, actual costs and expenses (including, without
limitation reasonable attorneys' fees and court costs) made, brought,
sought or incurred by any of Seller or any of its respective partners,
trustees, beneficiaries, shareholders, members, managers, employees,
officers, directors, advisors and other agents (the "Protected Parties") by
reasons directly arising out of, caused (in whole or in part) by or in
connection with any activities of Buyer (including activities of any of
Buyer's employees, consultants, contractors or other agents) relating to
the Property, including, without limitation, mechanics' liens, damage to
the Property, injury to persons or property resulting from such activities
<PAGE>
in connection therewith. Heitman Capital Management Corporation ("HCMC")
agrees to indemnify, defend and hold Seller and the Protected Parties
harmless from any and all such claims, losses, damages, and actual costs
and damages. The provisions of the immediately preceding sentence of this
Paragraph 4(B) shall survive the Closing or the earlier termination of this
Agreement, if this Agreement shall be terminated. Buyer shall not be
responsible for the indemnification obligations of HCMC and Seller shall
look solely to HCMC with respect thereto. Notwithstanding anything to the
contrary contained herein, the obligations of Buyer and HCMC under this
Paragraph 4(B) shall not apply to the discovery of a condition that existed
prior to the commencement of Buyer's or HCMC's activities on the Property.
Buyer shall promptly restore the Property to the condition in which it
existed prior to the commencement of any such activities which disturb or
alter the Property. HCMC shall procure and continue in force from and
after the date Buyer first enters the Real Property, and continuing
throughout the term of this Agreement, Comprehensive General Liability
Insurance with a combined single limit of not less than One Million Dollars
($1,000,000) per occurrence, or Commercial General Liability Insurance,
with limits of not less than One Million Dollars ($1,000,000) per
occurrence and Two Million Dollars ($2,000,000) per event. Seller shall be
included as Additional Insureds under such Comprehensive General Liability
or Commercial General Liability Coverage. Seller shall reasonably
cooperate with Buyer's inspections and investigations of the Property.
Seller agrees to respond within twenty-four (24) hours during normal
business hours to any inquiry which Buyer may make from time to time with
respect to the information contained in such materials, and shall instruct
its property manager and other agents and employees to answer Buyer's
inquiries from time to time relating to the condition and operation of the
Property, and shall join in any written requests, letters and documents
prepared by Buyer for submission to the appropriate city, county or quasi-
governmental unit making formal requests and/or application for copies of
utility permits, building permits, or other permits necessary for the
operation of the Property by Buyer, provided, however, Buyer shall not
request an inspection of the Property by any governmental entity. To
facilitate Buyer's evaluation, Seller shall give Buyer and its counsel,
accountants, and representatives full access, at all reasonable times, to
all of its records (to the extent in the possession of Seller or Seller's
agents and excluding ownership and partnership records) and operating books
with respect to ownership, construction and operation of the Property, and
the right to copy the same, and shall furnish Buyer with the due diligence
items indicated in the attached Exhibit "G" to the extent the same is in
the possession or control of Seller or Seller's agents. In the event of
termination hereunder, Buyer shall return all documents and other materials
furnished by Seller hereunder, without expunging copies. Buyer shall keep
all information or data received or discovered in connection with any of
the inspections, reviews or examinations strictly confidential except as
may be required under applicable law or as a result of legal process (i.e.
subpoena or court order) and shall obtain similar confidentiality
agreements from all third parties which it employs with respect to the
Property and with respect to any confidentiality agreements entered into
after the Effective Date, shall indemnify the Protected Parties for all
damages for breaches thereof. In particular, Seller acknowledges that
Buyer is subject to the Florida Public Records Act, Chapter 119 Florida
Statutes. Seller agrees that Seller will not make, accept, negotiate, or
otherwise pursue any offers for the sale or purchase of the Property prior
to: (i)the end of the Due Diligence Period; and, (ii) if Buyer delivers the
Approval Notice (as hereinafter defined) to Seller prior to the expiration
of the Due Diligence Period and if this Agreement is not previously
terminated, the Closing Date. If, on or before the expiration of the Due
Diligence Period, Buyer shall determine that it intends to proceed with the
acquisition of the Property and Buyer obtains approval from its Investment
Committee, then Buyer shall promptly notify Seller and Escrow Holder of
such determination in writing (such notice being herein called the
"Approval Notice") and thereafter, Buyer shall have no further right to
terminate this Agreement pursuant to this Paragraph 4(B). If, however, on
or before the expiration of the Due Diligence Period, Buyer shall determine
<PAGE>
in its sole and absolute discretion that it no longer intends to acquire
the Property, then Buyer shall promptly notify Seller of such determination
in writing (such notice being herein called the "Termination Notice"),
whereupon the Deposit shall be returned to Buyer and except for the
Surviving Obligations, this Agreement, shall terminate. In the event that,
on or before the expiration of the Due Diligence Period, Buyer shall fail
to have delivered the Approval Notice to Seller, Buyer shall be deemed to
have elected not to proceed with the acquisition of the Property and
terminate this Agreement and the Deposit shall be returned to Buyer as set
forth above.
C. Tenant Estoppel Certificates. Receipt of estoppel
certificates ("Tenant Estoppel Certificates") dated not more than thirty
(30) days prior to the Closing Date from a sufficient number of the tenants
at the Property so that estoppel certificates shall be received with
respect to not less than 80% of the gross leased area in the aggregate,
covered by leases at the Property in effect as of the date hereof, and
which shall include estoppel certificates from the following tenants:
Jacuzzi, Inc., Covance Clinical & Periapproval Services, Air Liquide, Maxis
and Bowles & Verna (collectively, the "Required Tenants") and receipt of an
estoppel certificate from Seller in substantially the form attached as
Exhibit "C-3" attached hereto (a "Seller Estoppel Certificate") with
respect to such leases for which a Tenant Estoppel Certificate has not been
issued (but not for the Required Tenants, who must deliver their own Tenant
Estoppel Certificates), is a condition precedent to Buyer's obligation to
purchase the Property hereunder. The form of estoppel certificate to be
received from each tenant shall be substantially in the form of Exhibit "C-
1" attached hereto and made a part hereof or in the form previously
delivered by the applicable tenant to Seller as set forth in Exhibit "C-2",
provided, however, if the applicable tenant lease prescribes the required
form of estoppel certificate, then such required form shall be deemed
acceptable. Buyer must object to Seller in writing within two (2) business
days after Buyer's receipt of any estoppel certificate if Buyer claims that
the form of any non-conforming estoppel certificate or any tenant or
landlord lease defaults or inconsistencies to the list of leases described
in any applicable estoppel certificate cause such certificate to be
unacceptable for the purposes of this Paragraph 4(C) (and if such objection
is not made within such time period, the non-conforming estoppel
certificate shall be deemed disapproved for purposes of satisfaction of the
foregoing condition precedent). Seller's sole obligation hereunder shall be
to utilize reasonable efforts to obtain such Tenant Estoppel Certificates
(such reasonable efforts obligation not including any obligation to
institute legal proceedings or to expend any monies therefor, other than
for minor administrative charges, whether imposed by tenants or incurred by
Seller). If Tenant Estoppel Certificates are obtained after the Closing
Date with respect to tenants for which Seller shall have delivered a Seller
Estoppel Certificate, such Tenant Estoppel Certificates shall replace
Seller's Estoppel Certificates to the extent they are not inconsistent, and
Seller shall not have any obligations or liabilities under Seller's
Estoppel Certificates to the extent that they are so replaced. Buyer shall
have the option to waive the condition precedent set forth herein by notice
to Seller (whereupon such condition will be deemed satisfied). In the
event that on or before the Closing Date such condition is not satisfied
(or waived as aforesaid), the obligations of Seller to sell, and Buyer to
purchase, this Agreement shall terminate whereupon the Deposit shall be
returned to Buyer and except for the Surviving Obligations, this Agreement,
shall terminate.
<PAGE>
D. Buyer's Conditions. Buyer shall not be obligated to
proceed with the Closing unless and until each of the following conditions
has been either fulfilled or waived in writing by Buyer or deemed waived by
Buyer by virtue of the occurrence of the Closing:
(1) The Seller's representations and warranties
contained herein shall be true and correct in all respects as of the
Closing Date; for purposes of this clause (a), a representation shall be
false if the factual matter that is the subject of the representation is
false notwithstanding any lack of knowledge or notice to the party making
the representation;
(2) As of the Closing Date, the Seller shall have
timely performed its obligations hereunder in all material respects and all
deliveries to be made at Closing have been tendered;
(3) Title Company advises Buyer that it holds all of
the documents and other items to be deposited into Escrow by Seller, and is
in a position to record the Deed;
(4) At no time on or before the Closing Date shall any
of the following have been done by, against or with respect to Seller: (i)
the commencement of a case under Title 11 of the U.S. Code, or under any
other applicable federal or state bankruptcy or similar law; (ii) the
appointment of a trustee or receiver of any property interest; (iii) an
assignment for the benefit of creditors; (iv) an attachment, execution or
other judicial seizure of a substantial property interest; (v) the taking
of, failure to take, or submission to any action indicating an inability to
meet its financial obligations as they accrue; or (vi) a dissolution or
liquidation;
(5) Other than the tenants described on Exhibit "O"
there shall be no material adverse change in the tenants occupancy of their
respective premises after the Effective Date. For purposes of the
foregoing sentence only, "material adverse change" shall mean a decrease in
the occupancy by one or more tenants whose cumulative annual rental shall
be more than $75,000.00. Other than the tenants described on Exhibit "O",
no tenant shall be more than one (1) month in arrears in the payment of any
rent;
(6) No material adverse change in the physical
condition of the Property shall have occurred after December 2, 1999,
other than by wear and tear in the ordinary course of business;
(7) Seller has fulfilled the Estoppel Certificate
Requirement in accordance with Paragraph 4(C);
(8) At Closing, there shall be no change in the matters
reflected in the Preliminary Title Report or the UCC Report, and there
shall not exist any encumbrance or title defect affecting the Property not
described in the Preliminary Title Report or the UCC. Report;
(9) At Closing, there shall be no change in the matters
reflected in the Survey and there shall not exist any easement, right-of-
way, encroachment, conflict or protrusion with respect to the Property not
shown on the Survey;
(10) At Closing, there shall be no litigation pending or
threatened, seeking (a) to enjoin the consummation of the sale and purchase
hereunder, (b) to recover title to the Property, or any part thereof or any
interest therein, or (c) to enjoin the violation of any law, rule,
regulation, restrictive covenant or zoning ordinance that may be applicable
to the Land, Improvements or Personal Property;
<PAGE>
(11) The environmental condition of the Property shall
not change adversely after the Effective Date;
(12) All of the rejected Service Agreements shall have
been terminated on or prior to Closing;
(13) All permits, licenses and occupancy certificates,
including, but not limited to, all building and use permits and a
certificate of occupancy, in force and effect upon the expiration of the
Due Diligence Period and which are necessary to continue operating the
Property as an office facility, shall be maintained through Closing;
(14) Provided that Buyer has obtain a title commitment
unconditionally and irrevocably committing to issue the Title Policy (as
hereinafter defined), as of Closing, Title Company is unconditionally and
irrevocably committed to issue an ALTA Title Policy Owner's form B-1970
with the creditors' rights exception deleted, showing no exceptions to
title except the Permitted Exceptions and with the endorsements described
in Paragraph 4(A) ("Title Policy");
(15) Title Company advises Buyer that it has received
all necessary information for filing any return required under Section
6045(e) of the Internal Revenue Code of 1986, as amended with respect to
the Closing and to file a Preliminary Change of Ownership statement as
required under California law; and
(16) Seller shall be ready, willing and able to deliver
possession of the Property, including, without limitation, any Personal
Property.
If any of the Buyer's conditions are not satisfied by the Closing Date, the
Buyer shall have the option to either (i) waive such condition and proceed
to Closing, or (ii) to terminate this Agreement whereupon the Deposit shall
be returned to Buyer and except for the Surviving Obligations, this
Agreement, shall terminate. The Closing shall be conclusive evidence of
the fulfillment or waiver of the foregoing Buyer's conditions and in no
event shall the foregoing Buyer's conditions survive the Closing.
Proceeding to Closing, however, shall not be deemed to affect the
representations and warranties of Seller set forth in Paragraph 7 hereof.
E. Seller's Conditions. Seller shall not be obligated to
proceed with the Closing unless and until each of the following conditions
has been either fulfilled or waived by Seller or deemed waived by Seller by
virtue of the occurrence of the Closing:
(1) The Buyer's representations and warranties
contained herein shall be true and correct in all respects as of the
Closing Date; for purposes of this clause (a), a representation shall be
false if the factual matter that is the subject of the representation is
false notwithstanding any lack of knowledge or notice to the party making
the representation; and
(2) As of the Closing Date, the Buyer shall have timely
performed its obligations hereunder in all material respects and all
deliveries to be made at Closing have been tendered.
If any of the Seller's conditions are not satisfied by the Closing Date,
the Seller shall have the option to either (i) waive such condition and
proceed to Closing, or (ii) to terminate this Agreement and except for the
Surviving Obligations, this Agreement, shall terminate. The Closing shall
be conclusive evidence of the fulfillment or waiver of the foregoing
Seller's conditions and in no event shall the foregoing Seller's conditions
survive the Closing. Proceeding to Closing shall not be deemed to affect
the representations and warranties of Buyer set forth in Paragraph 7
hereof.
<PAGE>
F. Approval of Service Agreements. On or before the
expiration of the Due Diligence Period, Buyer shall notify Seller as to
which, if any, of the Service Agreements that Buyer desires to accept.
Seller shall cause all such designated Service Agreements to be assigned to
Buyer at Closing. Notwithstanding the preceding sentence, Buyer shall have
the option not to accept the assignment of any such Service Agreement as to
which the contractor is in default as of the Closing Date. Seller shall
cause all other Service Agreements to be terminated as of the Closing Date.
Seller shall cause all Service Agreements between Seller and any affiliate
of Seller to be terminated prior to Closing. Seller shall be solely
responsible for the payment of all costs associated with such assignments
and terminations and shall cause the same to be paid on or before the
Closing Date.
G. Satisfaction of Purchase Right. Prior to the date
hereof, Seller has delivered to Haynes and Boone L.L.P., ("Buyer's
counsel"), evidence of (i) the satisfaction by Seller of the Purchase
Right, and (ii) the unilateral right of Seller to execute this Agreement
and to proceed to the Closing in accordance with the terms of this
Agreement without the joinder of any other partners of Seller (collectively
"Evidence of Authority"). Upon delivery by Buyer of the Approval Notice
pursuant to Paragraph 4 (B), Buyer's counsel is hereby authorized to
deliver the Evidence of Authority to Buyer without any requirement of
further instruction to do so. If Buyer fails to deliver the Approval
Notice prior to the expiration of the Due Diligence Period and this
Agreement is terminated pursuant to Paragraph 4 (B), Buyer's Counsel is
hereby authorized to return the Evidence of Authority to Seller without any
requirement of further instruction to do so. On or before December 20,1999
("Authority Period") , Buyer shall notify Seller in writing whether the
Evidence of Authority is acceptable to Buyer, in Buyer's sole and absolute
discretion. (such notice being herein called the "Authority Approval
Notice"). If, however, Buyer determines that the Evidence of Authority is
not acceptable to Buyer then prior to the expiration of the Authority
Period, Buyer shall notify Seller of such determination in writing (such
notice being herein called the "Authority Termination Notice"), whereupon
the Deposit shall be returned to Buyer and except for the Surviving
Obligations, this Agreement, shall terminate. In the event that, on or
before the expiration of the Authority Approval Period, Buyer shall fail to
have delivered the Authority Approval Notice to Seller, Buyer shall be
deemed to have elected not to proceed with the acquisition of the Property
and terminate this Agreement and the Deposit shall be returned to Buyer as
set forth above.
H. Approval of Purchase Right Endorsement. As of the
Effective Date, the Title Company has not provided to Buyer either the form
of or the cost of the Purchase Right Endorsement. Buyer and Seller shall
both endeavor to have the Title Company promptly provide to Buyer both the
form and the cost of the Purchase Right Endorsement. On or before the
expiration of the Authority Period, Buyer shall notify Seller in writing
whether the form and cost of the Purchase Right Endorsement is acceptable
to Buyer, in Buyer's sole and absolute discretion. (such notice being
herein called the "Endorsement Approval Notice"). If, however, Buyer
determines that the form or cost of the Purchase Right Endorsement is not
acceptable to Buyer then prior to the expiration of the Authority Period,
Buyer shall notify Seller of such determination in writing (such notice
being herein called the "Endorsement Termination Notice"), whereupon the
Deposit shall be returned to Buyer and except for the Surviving
Obligations, this Agreement, shall terminate. In the event that, on or
before the expiration of the Authority Period, Buyer shall fail to have
delivered the Endorsement Approval Notice to Seller, Buyer shall be deemed
to have elected not to proceed with the acquisition of the Property and
terminate this Agreement and the Deposit shall be returned to Buyer as set
forth above.
<PAGE>
5. Closing Procedure. The closing ("Closing") of sale and
purchase herein provided shall be consummated through escrow ("Escrow")
with Escrow Holder. Concurrently with or immediately following the
execution of this Agreement, the Escrow will be opened with Escrow Holder
in accordance with the terms of this Agreement; provided, however, in the
event of any conflict between the terms of this Agreement and the terms of
any subsequently delivered escrow instructions, the terms of this Agreement
shall govern unless such escrow instructions are signed by both Buyer and
Seller and expressly amend the provisions of this Agreement. As used
herein, "Closing Date" means December 22, 1999, provided that Seller and
Buyer shall endeavor to close the transaction as soon as practical after
the completion of the Due Diligence Period. In the event that on
December 22, 1999, any of the conditions precedent set forth in Paragraph 4
hereof have not been satisfied, either party hereto shall each have the
right to extend the Closing Date for a period not to exceed thirty (30)
days in order to satisfy such conditions precedent(s) and for purposes of
this Agreement such extended date shall be the Closing Date; provided if
such unsatisfied condition is satisfied, such Closing Date shall be two (2)
business days upon actual receipt of notice by facsimile (as evidenced by
electronic confirmation thereof) to all the parties of the satisfaction of
the last remaining of such conditions precedent(s).
A. Escrow. On or before the Closing Date, the parties shall
deliver to Escrow Holder the following: (1) by Seller, a duly executed and
acknowledged original grant deed ("Deed") in the form of Exhibit "D"
attached hereto and made a part hereof; and (2) by Buyer, the Closing
Payment in immediately available federal funds. Such deliveries shall be
made through Escrow pursuant to escrow instructions ("Escrow Instructions")
to be executed among Buyer, Seller and Escrow Holder in form reasonably
acceptable to such parties in order to effectuate the intent hereof. The
conditions to the closing of such escrow shall include the Escrow Holder's
receipt of the Deed, the Closing Payment and a notice from each of Buyer
and Seller authorizing Escrow Holder to close the transactions as
contemplated herein (each of Buyer and Seller being obligated to deliver
such authorization notice as soon as it is reasonably satisfied that the
other party is in a position to deliver the items to be delivered by such
other party under Paragraph 5(B) below).
B. Delivery to Parties. Upon the satisfaction of the
conditions set forth in the Escrow Instructions, then (x) the Deed shall be
delivered to Buyer by Escrow Holder's depositing the same for recordation,
(y) the Closing Payment (and the Deposit) shall be delivered by Escrow
Holder to Seller and (z) at the Closing, the following items shall be
delivered:
(1) Seller Deliveries. Seller shall deliver the
following additional items to Buyer either directly or through Escrow
hereunder except for items k, and o, which shall remain on the Property :
(a) A duly executed and acknowledged Assignment
of Leases, ("Assignment of Leases") in the form of Exhibit "E" attached
hereto and made a part hereof;
(b) A duly executed and acknowledged Bill of
Sale, ("Bill of Sale") in the form of Exhibit "L" attached hereto and made
a part hereof;
(c) A duly executed and acknowledged Assignment
of Service Contracts , ("Assignment of Contracts") in the form of Exhibit
"M" attached hereto and made a part hereof;
(d) A duly executed and acknowledged Assignment
of Construction Warranties, ("Assignment of Warranties") in the form of
Exhibit "N" attached hereto and made a part hereof;
<PAGE>
(e) Duly executed and acknowledged affidavit
regarding the "non-foreign" status of Seller;
(f) California Franchise Tax Board Form 590;
(g) A certificate of Seller ("Seller Closing
Certificate") updating the representations and warranties contained in
Paragraph 7(A)(2) hereof to the Closing Date and noting any changes
thereto, which changes shall be subject to Buyer's approval (and which
approval shall be a condition precedent to Closing);
(h) Originals of the Tenant Estoppel
Certificates;
(i) Originals of the Seller Estoppel
Certificates;
(j) Evidence reasonably satisfactory to Buyer and
Title Company respecting the due organization of Seller and the due
authorization and execution of this Agreement and the documents required to
be delivered hereunder;
(k) Notices ("Tenant Notices") in a form
reasonably acceptable to Seller and Buyer and executed by the Seller, to
all tenants and guarantors under the Leases, all vendors under Service
Agreements assigned to and accepted by Buyer, informing such persons of the
transfer of the Property;
(l) Keys for the Property, including the keys to
all individual units and leased space and any office, storage or other
facilities used in connection with the Property, and any entry cards or
opening devices for any security gates on the Property to the extent such
keys are in Seller's possession;
(m) A Seller's affidavit in a form customarily
accepted by the Title Company to eliminate those standard preprinted
exceptions contained in the Title Policy customarily deleted by affidavit;
(n) Original copies of any required real estate
transfer tax declarations executed by Seller or any other similar
documentation, if applicable, required to evidence the payment of any tax
imposed by the state, county and city on the transaction contemplated
hereby unless Buyer has received an exemption from such transfer tax before
Closing;
(o) Settlement or closing statement;
(p) Originals of all Leases, tenant files, and
any other instruments, records, or correspondence called for hereunder to
be delivered by Seller that have not previously been delivered to Buyer;
(q) Release executed by the Broker (as
hereinafter defined) releasing any claim or lien that the Broker may have
against Seller, Buyer or the Property as a result of the transactions
contemplated in this Agreement; and
(r) Such additional documents as may be
reasonably required by Buyer and Title Company in order to consummate the
transactions hereunder (provided the same do not materially increase the
costs to, or liability or obligations of, Seller in a manner not otherwise
provided for herein).
<PAGE>
(2) Buyer Deliveries. Buyer shall deliver the
following to Seller either directly or through Escrow hereunder:
(a) A duly executed and acknowledged Assignment
of Leases;
(b) A duly executed and acknowledged Assignment
of Contracts;
(c) A duly executed and acknowledged Assignment
of Warranties;
(d) A certificate of Buyer ("Buyer Closing
Certificate") updating the representations and warranties contained in
Paragraph 7(B) to the Closing Date and noting any changes thereto, which
changes shall be subject to Seller's reasonable approval (and which
approval shall be a condition precedent to Closing);
(e) duly executed Tenant Notices;
(f) Original copies of any required real estate
transfer tax declarations executed by Buyer or any other similar
documentation, if applicable, required to evidence the payment of any tax
imposed by the state, county and city on the transaction contemplated
hereby unless Buyer has received an exemption from such transfer tax before
Closing;
(g) Settlement or closing statement;
(h) Evidence reasonably satisfactory to Seller
and Title Company respecting the due organization of Buyer and the due
authorization and execution of this Agreement and the documents required to
be delivered hereunder; and
(i) Such additional documents as may be
reasonably required by Seller and Title Company in or to consummate the
transactions hereunder (provided the same do not materially increase the
costs to, or liability or obligations of, Buyer in a manner not otherwise
provided for herein).
C. Closing Costs. Seller shall pay (i) the title insurance
premium for the Owner's Policy attributable to standard ALTA coverage, (ii)
the cost to update the Survey, and (iii) one-half of any escrow charges.
Buyer shall pay (i) the transfer taxes applicable to the recordation of the
Deed, (ii) one-half of any escrow charges, (iii) all costs and premiums
associated with any title endorsements which may be requested by Buyer, and
(iv) all fees, costs or expenses incurred by Buyer in connection with
Buyer's due diligence reviews hereunder. Each of Seller and Buyer shall
pay its own attorneys' fees and its respective share of prorations as
hereinafter provided. Notwithstanding the foregoing, in the event the sale
contemplated hereby does not close on the Closing Date, then each party
shall pay all costs incurred by it. Other costs, charges and expenses
shall be paid as provided in this Agreement, or in the absence of such
provisions, in accordance with local custom. Seller shall reasonably
cooperate with Buyer, at Buyer's cost, in the application by Buyer for an
exemption from transfer taxes and such obligation shall survive Closing.
Seller agrees and acknowledges that any refund or savings from any
exemption from transfer taxes shall be for the account of Buyer.
<PAGE>
D. Prorations.
(1) Items to be Prorated. The following shall be
prorated between Seller and Buyer as of midnight of the date prior to the
Closing Date ("Proration Date"):
(a) All real and personal property taxes and
assessments on the Property shall be prorated on the basis that Seller is
responsible for all previous tax years and for the current tax year through
and including the Proration Date. Notwithstanding the preceding sentence,
to the extent that Seller has responsibility to the Contra Costa County
Assessor for such taxes under applicable law and such assessments can not
passed through to the tenants pursuant to their respective leases of the
Property, "escaped assessments" assessed or otherwise imposed upon the
Property for all such previous tax years and for the current tax year
through and including the Proration Date shall be the responsibility of
Seller and shall be subject to adjustment as set forth in Paragraph 5(D)(2)
(the "Escaped Assessment Liability"). Such proration shall be based on an
estimate of taxes and assessments using the latest available tax bills for
the Property; when the actual amount of taxes and assessments are
determinable, then such taxes and assessments shall be reprorated and
adjusted between the parties to reflect the actual amount of such taxes and
assessments. Payment of any increase in real property taxes arising from
the sale of the Property contemplated by this Agreement or from any
improvements made or leases entered into on or after the Closing Date shall
be the responsibility of Buyer. If any assessments on the Property are
payable in installments, then the installment for the current period shall
be prorated (with Buyer assuming the obligation to pay any installments due
after the Closing Date). Any and all claims or rights to appeal the amount
of any real property taxes or other taxes changed in connection with the
Property shall belong to Buyer following Closing.
(b) At Closing, Seller shall provide a credit
against the Purchase Price to Buyer in an amount equal to the outstanding
balance of the Subleasing Cost Notes pursuant to the terms of the lease
with Air Liquide America Corporation. In addition, at Closing, Seller
shall provide a credit against the Purchase Price to Buyer in an amount
equal to all prepaid rents attributable to periods after the Proration Date
and all security deposits in the amounts provided in the Tenant Estoppel
Certificates (provided that if a Tenant Estoppel Certificate is not
available at Closing, the amount shown in the most current accounts
receivable report as of the Proration Date will be credited). All rentals
and other tenant charges and reimbursements received in respect to the
month in which the Proration Date occurs (the "Current Month") and
Additional Rents (as defined below) for the Current Month which have been
received as of the Proration Date shall be prorated on a per diem basis
based upon the number of days in the Current Month on or prior to the
Proration Date (which shall be allocated to Seller) and the number of days
in the Current Month after the Proration Date (which shall be allocated to
Buyer). Rents and other tenant charges and Additional Rents which have not
been received as of the Proration Date shall not be prorated on the Closing
Date. All rentals and other tenant charges and Additional Rents received
by Buyer from a tenant after the Closing Date shall be applied as follows:
(i) first, to the payment of the actual reasonable third party costs of
collecting such amount; (ii) second, on account of any amounts then
currently due Buyer from such tenant for any periods subsequent to the
Proration Date; and (iii) third, on account of any amount then currently
due Seller from such tenant for any periods on or prior to the Proration
Date. Buyer shall (i) bill tenants for all rentals and other tenant
charges and Additional Rents, (ii) include all delinquent amounts in its
normal billings, (iii) pursue using reasonable and customary measures the
collection of all amounts, and (iv) reasonably cooperate with Seller in
collecting any amounts due Seller (but shall not be required to litigate or
<PAGE>
declare a default in any Lease). Delinquent payments, if and when
collected by Buyer, shall be paid to Seller to the extent of Seller's
interest therein, and if not collected within sixty (60) days after
Closing, Seller shall have the right to collect same and to pursue an
action against any tenant owing delinquent rents and any other amounts to
Seller attributable to the period prior to the Closing Date to collect such
amounts, together with damages and the like as a result thereof (but in no
event shall Seller have any right to institute eviction proceedings with
respect thereto). After application as set forth above, Buyer shall remit
to Seller within fifteen (15) business days after the end of the calendar
month of Buyer's receipt of that portion of rentals and other tenant
charges and Additional Rents received after the Closing Date attributable
to periods prior to the Closing Date. With respect to delinquent rents and
any other amounts or other rights of any kind respecting tenants who are no
longer tenants of the Property as of the Closing Date, Seller shall retain
all rights relating thereto and shall indemnify and hold harmless Buyer
from any claims for reproration of Additional Rents or other charges,
payments or security deposits pursuant to the terms of such terminated
leases.
(c) Tenants of the Property may be obligated to
pay, as additional rent, certain percentage rent, escalations in base rent,
parking charges and overtime HVAC charges and pass-throughs of operating
and similar expenses and taxes pursuant to the terms of the Leases
(collectively, "Additional Rents"). Any percentage rents shall be prorated
on a per diem basis at such time as the required annual sales reports and
final percentage rent payments are received from the tenants. Such
prorations shall be based on the actual sales during each party's period of
ownership of the Property and any "break-point" used in the calculation of
such percentage rents shall be ratably allocated based on the Proration
Date. Any operating cost pass-throughs or other sums paid by tenants to
landlord as provided for in the Leases (including, without limitation, real
estate tax reimbursements paid by tenants under the Leases) shall be
apportioned as follows: (i) all amounts paid to Seller prior to the
Proration Date for the period prior to the Closing Date shall be retained
by Seller; and (ii) any amounts payable by tenants but not yet collected
through the Proration Date, which reimburse landlord for charges accruing
prior to the Closing Date, shall be paid by Buyer to Seller within fifteen
(15) business days after the end of each calendar month; and (iii) all
amounts payable by tenants to reimburse for charges accruing for the period
beginning on, and continuing after, the Closing Date shall be retained by
Buyer. Except for checks for December rent which shall be retained by
Seller based on Seller's period of ownership of the Property during the
month of December, and of which any remainder shall be paid to Buyer within
fifteen (15) business days of Seller's receipt of such check, Seller agrees
that any checks received by Seller from tenants after the Closing shall,
within fifteen (15) business days be endorsed and delivered to Buyer. As
to any Additional Rents that are based on estimates and that are subject to
adjustment or reconciliation pursuant to the Leases after the Closing Date,
Seller and Buyer shall prorate such Additional Rents at the time that such
estimates are actually adjusted or reconciled pursuant to the terms of such
Leases. Buyer shall deliver bills to each tenant for Additional Rents by
no later than March 15, 2000 and Buyer shall use commercially reasonable
efforts to pursue collection of such bills. Any amounts that may be due
Seller as a result of such re-prorations shall be paid by Buyer to Seller
within fifteen (15) business days after Buyer collects such amounts from
the tenants, and any amounts that may be due the tenants from Seller as a
result of such re-prorations shall be paid by Seller to Buyer within
fifteen (15) business days after written request therefor is delivered to
Seller by Buyer (together with reasonable evidence of the amount due the
tenants).
<PAGE>
(d) Payments under any Service Agreements
assigned to and accepted by Buyer, together with other normal and customary
operating expenses of the Property, shall be prorated on a per diem basis
(subject to adjustment as set forth in Paragraph 5(D)(2)). Seller shall
pay any termination fees, cancellation fees or similar charges arising from
the termination of any Service Agreements and Seller agrees to indemnify
and hold Buyer and Buyer harmless with respect thereto.
(e) Prior to the Closing Date, Seller shall
request the providers of gas, water, electricity, heat, fuel, sewer and
other utilities relating to the Property to terminate service to the
Property under Seller's name and to render a final billing as of the
Closing Date, and Buyer shall request all such utility providers to
establish service to the Property in the name of Buyer as of the Closing
Date. If, for any reason, the parties are unable to obtain a final reading
of any utility as of the Closing Date, Seller's bill for such utility,
shall be estimated based upon the prior month's bill and prorated (subject
to adjustment as set forth in Paragraph 5(D)(2)) on a per diem basis on the
assumption that utility charges were uniformly incurred during the billing
period in which the Closing Date occurs. Except to the extent such items
are the responsibility of tenants, prepaid water, sewer, and other utility
charges shall be credited to Seller, and accrued water, sewer, and other
utility charges shall be credited to Buyer.
(f) Except with respect to any leases for which
Seller has received Buyer's approval pursuant to Paragraph 7(D)(7) of this
Agreement and except for any unexercised option periods contained in any
lease, any and all commissions of leasing and rental agents for any Lease
entered into before the date of Closing shall be paid by Seller prior to
the Closing Date and Seller agree to indemnify and hold Buyer and Buyer
harmless with respect thereto.
(2) Calculation. The prorations and payments shall be
made on the basis of a written statement submitted to Buyer and Seller by
Escrow Holder prior to the Close of Escrow and approved by Buyer and
Seller. In the event any prorations or apportionments made under this
Paragraph 5(D) shall prove to be incorrect for any reason, then any party
shall be entitled to an adjustment to correct the same provided written
notice of such inaccuracy and request for correction is given within six
(6) months after the Closing Date. Notwithstanding the foregoing, any
party shall be entitled to an adjustment with respect to any "escaped
assessments" assessed or imposed after Closing as referenced in Paragraph
5(D)(1)(a) regardless of when written notice of the request for correction
is given. Any item which cannot be finally prorated because of the
unavailability of information shall be tentatively prorated on the basis of
the best data then available and reprorated when the information is
available, but not later than June 30, 2000. The provisions of Paragraph
5(D) shall survive Closing.
6. Condemnation or Destruction of Property.
A. Fire or Other Casualty.
(1) Insured Casualty. If (i) the Property or any part
thereof is damaged by fire or other casualty prior to the Closing Date,
(ii) such casualty is insured pursuant to Seller's existing insurance
coverage, and (iii) repair of such casualty would cost in excess of Two
Hundred Fifty Thousand Dollars ($250,000) (as determined by an insurance
adjuster selected by the insurance carriers and acceptable to Seller and
Buyer) or such casualty would entitle any Tenant to terminate its Lease,
then Seller shall give Buyer written notice of such damage, and Buyer may
terminate this Agreement by written notice to Seller given within ten (10)
business days following receipt of Seller's notice of such casualty,
provided that the Closing Date shall be extended, if necessary, to provide
<PAGE>
such full ten (10) business day period. In the event of such termination,
the Deposit shall be delivered to Buyer, and this Agreement shall be of no
further force and effect and, except for Paragraph 4(B) of this Agreement
("Surviving Obligations"), neither party shall thereafter have any further
obligation under this Agreement. If Buyer does not elect to terminate this
Agreement or the cost of repair is determined by said adjuster to be less
than Two Hundred Fifty Thousand Dollars ($250,000), then the Closing shall
take place as herein provided with no reduction in the Purchase Price, and
Seller shall assign and transfer to Buyer on the Closing Date, all of
Seller's right, title and interest to the balance of insurance proceeds
paid or payable to Seller on account of such fire or casualty and Buyer
shall be entitled to a credit against the Purchase Price in the amount of
any deductible paid or payable by Seller with respect to such claim.
(2) Uninsured Casualty. If the Property or any part
thereof is damaged by fire or other casualty which is uninsured and if the
repair of such casualty would cost less than Two Hundred Thousand Dollars
($200,000) (as determined by Buyer in Buyer's reasonable discretion), then
Buyer may either (i) terminate this Agreement by written notice to Seller
given within ten (10) business days following receipt of Seller's notice of
such casualty, provided that the Closing Date shall be extended, if
necessary, to provide such full ten (10) business day period (ii) elect to
have the Closing take place as herein provided with Buyer to receive a
credit against the Purchase Price in the estimated amount of the repair.
If the Property or any part thereof is damaged by fire or other casualty
which is uninsured and if the repair of such casualty would cost in excess
of Two Hundred Thousand Dollars ($200,000) (as determined Buyer in Buyer's
reasonable discretion), then either Buyer or Seller may terminate this
Agreement by written notice to the other party given within ten (10)
business days following receipt of Seller's notice of such casualty,
provided that the Closing Date shall be extended, if necessary, to provide
such full ten (10) business day period. In the event of such a termination
under this Paragraph 6(A)(2), the Deposit shall be delivered to Buyer, and
this Agreement shall be of no further force and effect and, except for the
Surviving Obligations, neither party shall thereafter have any further
obligation under this Agreement.
B. Condemnation. If, prior to Closing, any portion of the
Property is taken or threatened to be taken in eminent domain proceedings
as evidenced by a written notice from a condemning authority, Seller shall
give Buyer written notice of such event and Buyer may terminate this
Agreement by notice to Seller given within ten (10) business days after
receipt of Seller's notice of such taking or threatened taking, provided
that the Closing Date shall be extended, if necessary, to provide such full
ten (10) business day period, and, in the event of such termination, the
Deposit shall be delivered to Buyer, and this Agreement shall be of no
further force and effect and, except for the Surviving Obligations, neither
party shall thereafter have any further obligation under this Agreement.
If Buyer does not so elect to terminate, then the Closing shall take place
as herein provided without a reduction in the Purchase Price, and Seller
shall deliver or assign to Buyer on the Closing Date, all of Seller's
right, title and interest in and to all condemnation awards paid or payable
to Seller.
7. Representations, Warranties and Covenants.
A. Representations, Warranties and Covenants of Seller.
(1) General Disclaimer. Except as specifically set
forth in Paragraph7(A)(2) below, the sale of the Property hereunder is and
will be made on an "as is" basis, without representations and warranties of
any kind or nature, express, implied or otherwise, including, but not
limited to, any representation or warranty concerning title to the
Property, the physical condition of the Property (including, but not
limited to, the condition of the soil or the Improvements), the
environmental condition of the Property (including, but not limited to, the
<PAGE>
presence or absence of hazardous substances on or respecting the Property),
the compliance of the Property with applicable laws and regulations
(including, but not limited to, zoning and building codes or the status of
development or use rights respecting the Property), the financial condition
of the Property or any other representation or warranty respecting any
income, expenses, charges, liens or encumbrances, rights or claims on,
affecting or pertaining to the Property or any part thereof. Buyer
acknowledges that, during the Due Diligence Period, Buyer will examine,
review and inspect all matters which in Buyer's judgment bear upon the
Property and its value and suitability for Buyer's purposes. Except as to
matters specifically set forth in Paragraph 7(A)(2) below, Buyer will
acquire the Property solely on the basis of its own physical and financial
examinations, reviews and inspections and the title insurance protection
afforded by the Owner's Policy. WITHOUT LIMITATION THEREON, BUYER HEREBY
WAIVES AND DISCLAIMS (1) ANY WARRANTY, EXPRESS, IMPLIED OR ARISING BY
OPERATION OF LAW, INCLUDING ANY WARRANTY OF HABITABILITY, MERCHANTABILITY,
SUITABILITY OR FITNESS FOR A PARTICULAR USE OR PURPOSE AND (2) ANY AND ALL
RIGHTS OF CONTRIBUTION OR OTHER RIGHTS OR REMEDIES AGAINST SELLER UNDER THE
COMPREHENSIVE ENVIRONMENTAL RESPONSE, COMPENSATION AND LIABILITY ACT OF
1980 (AS AMENDED) ("CERCLA") OR ANY OTHER APPLICABLE ENVIRONMENTAL LAWS,
RULES OR REGULATIONS, WHETHER FEDERAL, STATE OR LOCAL; PROVIDED,
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT, IF
(A) AN ACTION OR OTHER PROCEEDING IS INSTITUTED BY ANY GOVERNMENTAL BODY,
AGENCY OR INSTRUMENTALITY AGAINST BUYER OR AGAINST BUYER AND OTHER PARTIES
SEEKING DAMAGES OR OTHER RELIEF PERTAINING TO THE PROPERTY UNDER CERCLA
BUYER MAY SEEK TO JOIN SELLER AS A DEFENDANT IN SUCH ACTION, OR (B) SUBJECT
TO PARAGRAPH 9 B (2), HAZARDOUS MATERIALS HAVE BEEN INTENTIONALLY AND
UNLAWFULLY RELEASED OR DISCHARGED ON THE PROPERTY BY SELLER, BUYER MAY
PURSUE ANY AND ALL CAUSES OF ACTIONS AGAINST SELLER AS ARE PERMITTED BY
CERCLA OR ANY OTHER APPLICABLE ENVIRONMENTAL LAWS, RULES OR REGULATIONS,
WHETHER FEDERAL STATE OR LOCAL.
(2) Representations and Warranties of Seller. Subject
to the provisions of Paragraph 7(A)(1) above, Seller hereby represents and
warrants and covenants to and with Buyer, which representations, warranties
and covenants are material and are being relied upon by Buyer, that, except
as set forth in Exhibit "F" attached hereto and made a part hereof (and for
purposes of this Agreement, the term "Seller's knowledge" shall mean only
the present actual knowledge of Andrea Pauls Backman, Senior Vice President
and Portfolio Manager of JMB, after having Seller's third party property
manager review the representations and warranties contained herein, but
otherwise without any duty to investigate and with any imputed or
constructive knowledge being excluded):
(a) Due Diligence. To the extent the same are in
Seller's possession or in the possession of Seller's property manager for
the Property, Seller shall provide to Buyer, or provide access to Property
to review, the due diligence items requested in Exhibit "G" attached hereto
and made a part hereof.
(b) Leases. Attached as Exhibit "H" and made a part
hereof is a true, complete and accurate list, as of the date thereof, of
all Leases respecting the Property. Seller has not received any written
notice of a default under any of such Leases that remains uncured. To
Seller's knowledge, there is no uncured material event of default pursuant
to the terms of such Leases.
(c) Litigation. There is no material action,
litigation, condemnation or other proceeding against the Property or
against Seller with respect to the Property which would not be covered by
Seller's insurance for the Property, nor to Seller's knowledge is any such
proceeding pending.
<PAGE>
(d) Compliance. Seller has received no written notice
from any governmental authority having jurisdiction over the Property to
the effect that the Property or any of its present uses are not in
compliance with any applicable zoning, land-use, building, fire, health and
safety or any other laws, regulations, ordinances or other governmental
rules.
(e) Service Agreements. Seller has not entered into
any service agreements or other agreements relating to the Property except
for those agreements described in Exhibit "I" attached hereto and made a
part hereof and except for matters of record and leases ("Service
Agreements"). The Service Agreements will be in force on the Closing Date,
except as specifically referenced in Exhibit "I" attached hereto and made a
part hereof. Seller has not received any written notice of any material
default and to Seller's knowledge there is not any default under either the
Service Agreements that remains uncured.
(f) Due Authority. This Agreement and all agreements,
instruments and documents herein provided to be executed or to be caused to
be executed by Seller are and on the Closing Date will be duly authorized,
executed and delivered by and are binding upon Seller. Seller is a general
partnership, duly organized, validly existing and in good standing under
the laws of the State of California, and is duly authorized and qualified
to do all things required of it under this Agreement. Seller has the
capacity and authority to enter into this Agreement and consummate the
transactions herein provided. None of the execution and delivery of this
Agreement and documents referenced herein, the incurrence of the
obligations set forth herein, the consummation of the transactions herein
contemplated or referenced herein conflicts with or results in the material
breach of any terms, conditions or provisions of or constitute a default
under, any bond, note, or other evidence of indebtedness or any contract,
lease or other agreements or instruments to which Seller is a party or by
which it is otherwise bound.
(g) Environmental Matters. Except as set forth in the
reports described in Exhibit "J" attached hereto and made a part hereof
(the "Environmental Reports"), Seller has received no written notice of the
existence, deposit, storage, removal, burial or discharge of any Hazardous
Material at, upon, under, within or adjacent to the Property. The term
"Hazardous Material" shall mean (i) asbestos and any chemicals, flammable
substances or explosives, any radioactive materials (including radon), any
hazardous wastes or substances which have, as of the date hereof, been
determined by any applicable Federal, State or local government law to be
hazardous, toxic or waste by the U.S. Environmental Protection Agency, the
U.S. Department of Transportation, and/or any instrumentality now or
hereafter authorized to regulate materials and substances in the
environment which has jurisdiction over the Property ("Environmental
Agency"), and (ii) any oil, petroleum or petroleum derived substance, any
drilling fluids, produced waters and other wastes associated with the
exploration, development or production of crude oil, which materials listed
under items (i) and (ii) above cause the Property (or any part thereof) to
be in violation of any applicable environmental laws or the regulations of
any Environmental Agency; provided, however, that the term Hazardous
Material shall not include motor oil and gasoline contained in or lawfully
discharged from vehicles not used primarily for the transport of motor oil
or gasoline.
(h) Solvency. No Bankruptcy/Dissolution Event (as
defined below) has occurred with respect to Seller.
"Bankruptcy/Dissolution Event" means the occurrence of any of the
following: (a) the commencement of a case under Title 11 of the U.S. Code,
as now constituted or hereafter amended, or under any other applicable
federal or state bankruptcy law or other similar law; (b) the appointment
of a trustee or receiver of any property interest; (c) an assignment for
the benefit of creditors; (d) an attachment, execution or other judicial
seizure of a substantial property interest; or (e) a dissolution or
liquidation, death or incapacity.
<PAGE>
(i) Impact Fees. To Seller's knowledge, there are no
outstanding obligations to pay any capital charges, impact, connection or
development fees imposed by any governmental or quasi-governmental
authority, or any public or private utility relating to the construction of
the Property
(j) Tenant Improvements and Concessions. Except as
provided in the Leases and except for unexercised option periods, there are
no outstanding tenant improvement obligations, leasing commissions or
rental concessions with respect to the Property.
(k) Prepayments Under Leases. No prepaid rents in
excess of one month in advance, security deposits, or merchants
association/promotional fund contributions have been paid by any tenant
under the Leases, except as disclosed in the Rent Roll.
(l) Tax Proceedings. Seller has not received any
written notice of any existing or planned tax or abatement proceedings with
respect to the Property.
(m) Rights to Purchase. Except for certain purchase
rights ("Purchase Rights") in favor of Cygna Limited One, a partner in
Seller, pursuant to the partnership agreement of Seller, there are no
outstanding agreements of sale, option agreements, rights of first refusal,
or other rights of third parties to acquire any fee interest in the
Property.
(n) Condemnation. Seller has not received any written
notice of pending or threatened condemnation of the Property.
(o) Operating Statements. The operating statements for
the Property for the periods 1997, 1998, and year-to-date 1999
(preliminary) were prepared in the usual course of Seller's business.
(q) Personal Property. Except for leased Personal
Property specified in specified in Exhibit "F", Seller shall own as of the
Closing, unencumbered legal title to all of the Personal Property.
(r) Employees. Seller does not employ any employees at
the Property (any on-site personnel being employed by Seller's third party
property manager).
B. Representations and Warranties of Buyer. This Agreement
and all agreements, instruments and documents herein provided to be
executed or to be caused to be executed by Buyer are and on the Closing
Date will be duly authorized, executed and delivered by and are binding
upon Buyer. Buyer is a corporation, duly organized, validly existing and
in good standing under the laws of the State of Florida, and is duly
authorized and qualified to do all things required of it under this
Agreement. Buyer has the capacity and authority to enter into this
Agreement and consummate the transactions herein provided. None of the
execution and delivery of this Agreement and documents referenced herein,
the incurrence of the obligations set forth herein, the consummation of the
transactions herein contemplated or referenced herein conflicts with or
results in the material breach of any terms, conditions or provisions of or
constitute a default under, any bond, note, or other evidence of
indebtedness or any contract, lease or other agreements or instruments to
which Buyer is a party or by which it is otherwise bound
<PAGE>
C. Survival. Any cause of action of a party for a breach of
the representations and warranties contained in this Agreement shall
survive until December 25, 2000 (the "Survival Period"), at which time such
representations and warranties (and any cause of action resulting from a
breach thereof not then in litigation) shall terminate. Notwithstanding the
foregoing, if Buyer shall have actual knowledge as of the Closing Date that
any of the representations or warranties of Seller contained herein are
false or inaccurate or that Seller is in breach or default of any of its
obligations under this Agreement, and Buyer nonetheless closes the
transactions hereunder and acquires the Property, then Seller shall have no
liability or obligation respecting such false or inaccurate representations
or warranties or other breach or default (and any cause of action resulting
therefrom shall terminate upon such closing hereunder). The actual
knowledge of Buyer shall be the actual conscious knowledge of Howard J.
Edelman, Blaise Keane, and Tony Ferrante, without duty of investigation or
inquiry.
D. Interim Covenants of Seller. Until the Closing Date or
the sooner termination of this Agreement:
(1) Seller shall maintain the Property in the same
manner as prior hereto pursuant to its normal course of business (such
maintenance obligations not including extraordinary capital expenditures or
expenditures not incurred in such normal course of business), subject to
reasonable wear and tear and further subject to destruction by casualty or
other events beyond the control of Seller.
(2) Seller shall not enter into any additional service
contracts or other similar agreements without the prior written consent of
Buyer.
(3) Seller shall not transfer any of the Property or
create on the Property any easements, liens, mortgages, encumbrances, or
other interests which will survive Closing or permit any changes to the
zoning classification of the Property.
(4) Seller shall maintain the existing insurance
coverages (or substantially equivalent coverage) applicable to the
Property.
(5) Seller shall comply in all material respects with
the terms of the Leases and shall not consent to any default or breach
under any Lease or Service Agreement.
(6) Seller shall have the right to continue to offer
the Property for lease in the same manner as prior hereto pursuant to its
normal course of business and shall keep Buyer informed as to the status of
leasing prior to the Closing Date. Seller will not, without the prior
written consent of Buyer, (i) amend any Leases (ii) cancel any of such
Leases, or (iii) execute any new leases without the prior written consent
of Buyer. Seller shall submit to Buyer all tenant executed proposals
describing the economic terms of any proposed lease, cancellation or
amendment along with any financial information on the tenant in Seller's
possession (the "Proposal"). Buyer shall provide its written approval or
disapproval of such Proposal within five (5) business days after receipt of
the Proposal. If Buyer fails to provide written notice of its approval or
disapproval within such five (5) business day period, Buyer shall be deemed
to have disapproved such Proposal. In the event Buyer specifically
disapproves any Proposal, Buyer's notice of disapproval shall include the
reasons for such disapproval. In the event Buyer approves any such
Proposal, Buyer, upon Closing, shall be solely responsible for all tenant
allowances, landlord costs, legal costs, rental concessions and lease
commissions payable with respect to such Proposal to the extent disclosed
<PAGE>
in such Proposal. Seller shall have the right to execute the lease
document evidencing a Proposal approved by Buyer provided the Seller's
standard lease form is utilized without material modifications. In no
event shall Seller have any obligation to enter into any new lease or
modify any existing lease unless Buyer shall agree to pay or reimburse
Seller on the Closing Date for all tenant improvement costs, landlord
costs, legal costs, rental concessions and leasing commissions incurred by
Seller under or in connection therewith.
8. Default by Buyer; Remedies of Seller. IF THE SALE
OF THE PROPERTY CONTEMPLATED HEREUNDER IS NOT CONSUMMATED BECAUSE OF A
DEFAULT UNDER THIS AGREEMENT SOLELY ON THE PART OF BUYER, WHERE SUCH
DEFAULT IS NOT (I) EXPRESSLY WAIVED BY SELLER, (II) CURED WITHIN TEN (10)
DAYS AFTER NOTICE THEREOF (OTHER THAN BUYER'S FAILURE TO TENDER THE
PURCHASE PRICE AND CLOSE ON THE CLOSING DATE IN ACCORDANCE WITH THE
PROVISIONS SET FORTH IN THIS AGREEMENT, FOR WHICH NO NOTICE IS REQUIRED OR,
IF SUCH DEFAULT IS NOT REASONABLY CURABLE WITHIN TEN (10) DAYS, THEN IF
BUYER FAILS TO COMMENCE CURATIVE ACTION WITHIN TEN (10) DAYS AND DILIGENTLY
PURSUE THE SAME TO COMPLETION) OR (III) THE RESULT OF A FAILURE OF A
CONDITION TO BUYER'S OBLIGATIONS HEREUNDER THEN, PROVIDED SELLER IS NOT
CURRENTLY IN DEFAULT HEREUNDER, THE DEPOSIT, TOGETHER WITH ANY AND ALL
INTEREST EARNED THEREON SHALL BE PAID TO AND RETAINED BY SELLER AS
LIQUIDATED DAMAGES. THE PARTIES HAVE AGREED THAT SELLER'S ACTUAL DAMAGES
IN THE EVENT OF SUCH DEFAULT BY BUYER, WOULD BE EXTREMELY DIFFICULT OR
IMPRACTICABLE TO DETERMINE. THEREFORE, BY PLACING THEIR INITIALS BELOW,
THE PARTIES ACKNOWLEDGE AND AGREE THAT THE DEPOSIT HAS BEEN AGREED UPON
AFTER NEGOTIATION, AS THE PARTIES' REASONABLE ESTIMATE OF SELLER'S DAMAGES
AND AS SELLER'S SOLE AND EXCLUSIVE REMEDY AGAINST BUYER, AT LAW OR IN
EQUITY, IN THE EVENT OF SUCH A DEFAULT BY BUYER UNDER THIS AGREEMENT.
-------------------- --------------------
Seller's Initials Buyer's Initials
Default by Seller; Remedies of Buyer. If the sale of the Property
contemplated hereunder is not consummated because of a default under this
Agreement solely on the part of Seller, where such default is not (i)
expressly waived by Buyer, (ii) cured within ten (10) days after notice
thereof or, if such default is not reasonably curable within ten (10) days,
then if Seller fails to commence curative action within ten (10) days and
diligently pursue the same to completion, then, provided Buyer is not in
currently in default hereunder, Buyer may (i) terminate this Agreement, in
which event the Deposit, together with any and all interest earned thereon
shall be released by the Title Company and delivered to Buyer, and neither
Buyer nor Seller shall have any further obligations or liabilities
hereunder, except pursuant to the Surviving Obligations and except that
Buyer shall be entitled to receive its out-of-pocket expenses up to Two
Hundred Thousand Dollars ($200,000.00) incurred in conducting its due
diligence activities with respect to the Property, or (ii) pursue the right
of specific performance, but no other action for damages or otherwise shall
be permitted.
9. Miscellaneous.
A. Brokers.
(1) Except as provided in Paragraph 9(A)(2) below,
Seller represents and warrants to Buyer, and Buyer represents and warrants
to Seller, that no broker or finder has been engaged by it, respectively,
in connection with any of the transactions contemplated by this Agreement
or to its knowledge is in any way connected with any of such transactions.
In the event of a claim for broker's or finder's fee or commissions in
connection herewith, then Seller shall protect Buyer from the same if it
shall be based upon any statement or agreement alleged to have been made by
Seller, and Buyer shall protect Seller from the same if it shall be based
upon any statement or agreement alleged to have been made by Buyer. The
obligations under this Paragraph 9(A)(1) shall survive the Closing or the
earlier termination of this Agreement.
<PAGE>
(2) If and only if the sale contemplated herein closes,
Seller agrees to pay a brokerage commission to HIGroup, formerly known as
Hampton's International ("Broker"), pursuant to a separate written
agreement with Broker. In the event of a claim for broker's or finder's fee
or commissions from Broker or any party claiming by, through, or under
Broker, then Seller shall protect Buyer from the same.
B. Limitation of Liability.
(1) Notwithstanding anything to the contrary contained
herein (except with regard to "escaped taxes"; which obligation shall not
be so limited), if the Closing shall have occurred, the aggregate liability
of Seller arising out of, pursuant to or in connection with the
representations, warranties, indemnifications, covenants or other
obligations (whether express or implied) of Seller under this Agreement (or
any document executed or delivered in connection herewith) shall not exceed
$2,000,000, and Seller hereby covenants and agrees that not less that
$2,000,000 of cash proceeds from the Purchase Price shall be retained by
the Seller or Carlyle Real Estate Limited Partnership-XV ("Carlyle") and
not distributed to its partners prior to the expiration of the Survival
Period. The provisions of this Paragraph 9(B)(1) shall survive Closing.
(2) Except as specifically set forth hereafter, or to
the extent of any distribution in violation of Paragraph 9(B)(1), no
constituent partner in or agent of Seller, nor any partner, member,
trustee, director, officer, employee, beneficiary, shareholder,
participant, representative, advisor or agent of any entity that is or
becomes a constituent partner in Seller (collectively, "Indirect Entities")
shall have any personal liability, directly or indirectly, under or in
connection with this Agreement or any agreement made or entered into under
or pursuant to the provisions of this Agreement, or any amendment or
amendments to any of the foregoing made at any time or times, heretofore or
hereafter, and Buyer and its successors and assigns and, without
limitation, all other persons and entities, shall look solely to Seller's
assets for the payment of any claim or for any performance, and Buyer, on
behalf of itself and its successors and assigns, hereby waives any and all
such personal liability; provided, however, the foregoing shall not limit
obligations which Carlyle (but not the Indirect Entities of Carlyle) may
have for Seller's liabilities hereunder as a general partner of Seller
(such liabilities in all events being subject to other limitations
contained in this Agreement). Notwithstanding anything to the contrary
contained in this Agreement, neither the negative capital account of any
constituent partner in Seller (or in any other constituent partner of
Seller), nor any obligation of any constituent partner in Seller (or in any
other constituent partner of Seller) to restore a negative capital account
or to contribute capital to Seller (or to any other constituent partner of
Seller), shall at any time be deemed to be the property or an asset of
Seller or any such other constituent partner (and neither Buyer nor any of
its successors or assigns shall have any right to collect, enforce or
proceed against or with respect to any such negative capital account of
partner's obligation to restore or contribute).
C. Entire Agreement. This Agreement contains the entire
agreement between the parties respecting the matters herein set forth and
supersedes all prior agreements between the parties hereto respecting such
matters. This Agreement may not be modified or amended except by written
agreement signed by both parties.
D. Time of the Essence. Time is of the essence of this
Agreement.
<PAGE>
E. Interpretation. Paragraph headings shall not be used in
construing this Agreement. Each party acknowledges that such party and its
counsel, after negotiation and consultation, have reviewed and revised this
Agreement. As such, the terms of this Agreement shall be fairly construed
and the usual rule of construction, to the effect that any ambiguities
herein should be resolved against the drafting party, shall not be employed
in the interpretation of this Agreement or any amendments, modifications or
exhibits hereto or thereto.
F. Governing Law. This Agreement shall be construed and
enforced in accordance with the laws of the State of California.
G. Successors and Assigns. Buyer may assign this Agreement
and its rights under this Agreement to a corporation, limited liability
company or such other entity which is wholly owned by The State Board of
Administration of Florida, so long as such assignment is effective only
upon Closing and assignee assumes responsibility for performance of Buyer's
obligations under this Agreement. In such event, Buyer shall be released
from all further liability hereunder. Except as allowed by the preceding
sentence, neither Buyer nor Seller may assign this Agreement or its rights
under this Agreement or delegate responsibility for performance of its
obligations under this Agreement absent the prior written consent of the
other party. Except as the consenting party may expressly approve in
writing, no approved assignment shall release the assigning party from its
obligations and duties hereunder. Subject to the foregoing, this Agreement
shall apply to, inure to the benefit of and be binding upon and enforceable
against the parties hereto and their respective successors and assigns. No
consent given by Seller to any transfer or assignment of Buyer's rights or
obligations hereunder shall be construed as a consent to any other transfer
or assignment of Buyer's rights or obligations hereunder. No transfer or
assignment in violation of the provisions hereof shall be valid or
enforceable. Subject to the foregoing, this Agreement and the terms and
provisions hereof shall inure to the benefit of and be binding upon the
successors and assigns of the parties.
H. Notices. Any notice which a party is required or may
desire to give the other shall be in writing and shall be sent by personal
delivery or by Federal Express or similar generally recognized overnight
carrier regularly providing proof of delivery), addressed as follows
(subject to the right of a party to designate a different address for
itself by notice similarly given):
To Buyer:
c/o The State Board of Administration of Florida
P. O. Box 13300
Tallahassee, Florida 32317-3300
Attention: Douglas W. Bennett
Facsimile: (850) 413-1147
With a copy to:
c/o The State Board of Administration of Florida
P. O. Box 13300
Tallahassee, Florida 32317-3300
Attention: Jeffrey L. Smith
Facsimile: (850) 413-1147
With an additional copy to:
Heitman Capital Management LLC
Suite 3600
180 LaSalle Street
Chicago, Illinois 60601
Attention: Howard J. Edelman
Facsimile: (312) 541-6738
<PAGE>
With additional copy to:
Haynes and Boone, L.L.P.
Suite 3100
901 Main Street
Dallas, Texas 75202-3789
Attention: Richard K. Martin
Facsimile: (214) 200-0521
Telephone: (214) 651-5508
To Seller:
c/o JMB Realty Corporation
900 North Michigan Avenue
Chicago, Illinois 60611
Attention: Ms. Andrea Pauls Backman
Facsimile: (312) 915-2502
Telephone: (312) 915-2367
With a copy to:
Pircher, Nichols & Meeks
1999 Avenue of the Stars
Suite 2600
Los Angeles, California 90067
Attention: Real Estate Notices (GML)
Facsimile: (310) 201-8922
Telephone: (310) 201-8900
Any notice so given by mail shall be deemed to have been given as of
the date actual delivery by hand and upon delivery to the overnight
carrier, as the case may be. Any such notice not so given shall be deemed
given upon receipt of the same by the party to whom the same is to be
given. Notice may be given by facsimile transmission and shall be deemed
given upon actual receipt of the same by the party to whom the same is to
be given (as evidenced by electronic confirmation thereof).
I. Legal Costs. The parties hereto agree that they shall
pay directly any and all legal costs which they have incurred on their own
behalf in the preparation of this Agreement, all deeds and other agreements
pertaining to this transaction and that such legal costs shall not be part
of the closing costs. In addition, if either Buyer or Seller brings any
suit or other proceeding with respect to the subject matter or the
enforcement of this Agreement, the prevailing party (as determined by the
court, agency or other authority before which such suit or proceeding is
commenced), in addition to such other relief as may be awarded, shall be
entitled to recover reasonable attorneys' fees, expenses and costs of
investigation actually incurred. The foregoing includes, but is not
limited to, attorneys' fees, expenses and costs of investigation
(including, without limitation, those incurred in appellate proceedings),
costs incurred in establishing the right to protection or the right to
indemnification by HCMC pursuant to Paragraph 4(B) of this Agreement, or in
any action or participation in, or in connection with, any case or
proceeding under Chapter 7, 11 or 13 of the Bankruptcy Code (11 United
States Code Sections 101 et seq.), or any successor statutes.
J. Counterparts. This Agreement may be executed in one or
more counterparts, each of which shall be deemed an original, but all of
which shall constitute one and the same document.
K. Business Days. For purposes of this Agreement, the term
"business days" shall mean any day other than: a Saturday, a Sunday, a
California State or national holiday, November 26, 1999 (the Friday after
Thanksgiving), December 24, 1999 (Christmas Eve), December 31, 1999 (New
Year's Eve), and any other day on which commercial bankers in California
are generally not open for business.
<PAGE>
THE SUBMISSION OF THIS AGREEMENT FOR EXAMINATION IS NOT INTENDED TO
NOR SHALL CONSTITUTE AN OFFER TO SELL, OR A RESERVATION OF, OR OPTION OR
PROPOSAL OF ANY KIND FOR THE PURCHASE OF THE PROPERTY. IN NO EVENT SHALL
ANY DRAFT OF THIS AGREEMENT CREATE ANY OBLIGATION OR LIABILITY, IT BEING
UNDERSTOOD THAT THIS AGREEMENT SHALL BE EFFECTIVE AND BINDING ONLY WHEN A
COUNTERPART HEREOF HAS BEEN EXECUTED AND DELIVERED BY EACH PARTY HERETO TO
ESCROW HOLDER. ESCROW HOLDER SHALL DATE THIS AGREEMENT WITH THE DATE ON
WHICH ESCROW HOLDER SHALL HAVE RECEIVED THIS AGREEMENT EXECUTED BY
BOTH BUYER AND SELLER (AND SUCH DATE SHALL BE THE "EFFECTIVE DATE" FOR
PURPOSES HEREOF).
[Signature pages follow.]
<PAGE>
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
as of the Effective Date.
SELLER:
C-C CALIFORNIA PLAZA PARTNERSHIP,
a California general partnership
By: CARLYLE REAL ESTATE LIMITED PARTNERSHIP-XV,
an Illinois limited partnership,
General Partner
By: JMB REALTY CORPORATION,
a Delaware corporation,
General Partner
By:
------------------------------
Name:
------------------------------
Title:
------------------------------
BUYER:
CALIFORNIA PLAZA AT WALNUT CREEK, INC.,
a Florida corporation
By:
------------------------------
Name:
------------------------------
Title:
------------------------------
HEITMAN CAPITAL MANAGEMENT LLC is executing this Purchase and Sale
Agreement solely to evidence its agreement to be bound by the provisions of
Paragraph 4(B).
HEITMAN CAPITAL MANAGEMENT LLC
an Illinois limited liability company
By: ________________________________
Name: Howard J. Edelman
Title: Executive Vice President
Dated: December __, 1999
<PAGE>
ESCROW HOLDER'S ACKNOWLEDGEMENT
-------------------------------
The undersigned hereby executes this Agreement to evidence its
agreement to act as Escrow Holder in accordance with the terms of this
Agreement.
Effective Date: December ___, 1999
CHICAGO TITLE COMPANY
By:
------------------------------
Name:
------------------------------
Title:
------------------------------
"Escrow Holder"
<PAGE>
EXHIBIT LIST
"A" - Property Description
"B" - Personal Property
"C-1"- Form of Tenant Estoppel Certificate
"C-2"- Form of Previously Delivered Tenant Estoppel Certificate
"D" - Deed
"E" - Assignment of Leases
"F" - Exceptions to Seller's Representations and Warranties
"G" Requested Documents
"H" - List of Leases
"I" - Service Agreements
"J" - Environmental Reports
"K" - Surveyor's Certification
"L" - Bill of Sale
"M" - Assignment of Service Contracts
"N" - Assignment of Construction Warranties
"O" - Tenants Not in Occupancy / Delinquent Tenants
<PAGE>
EXHIBIT "A"
Property Description
--------------------
PARCEL ONE:
LOTS 3 THROUGH 7, INCLUSIVE, AND LOTS 46 THROUGH 49, INCLUSIVE, ALL IN
BLOCK 5, AS SHOWN ON THE MAP OF PRINGLE ADDITION TO THE TOWN OF WALNUT
CREEK, FILED MAY 6, 1912 IN BOOK 7 OF MAPS, PAGE 154, CONTRA COSTA COUNTY
RECORDS.
EXCEPTING THEREFROM: THAT PORTION OF SAID LOT 49 CONVEYED TO THE CITY OF
WALNUT CREEK BY DEED RECORDED NOVEMBER 5, 1969 IN BOOK 5998 OF OFFICIAL
RECORDS, PAGE 178, DESCRIBED AS FOLLOWS:
BEGINNING AT THE SOUTHERNMOST CORNER OF LOT 49 IN BLOCK 5, AS DESIGNATED ON
THE MAP ENTITLED "R.N. BURGESS COMPANY'S MAP OF THE PRINGLE ADDITION TO THE
TOWN OF WALNUT CREEK", WHICH MAP WAS FILED IN THE OFFICE OF THE RECORDER OF
THE COUNTY OF CONTRA COSTA, STATE OF CALIFORNIA, ON MAY 6, 1912 IN BOOK 7
OF MAPS AT PAGE 154; THENCE ALONG THE WESTERN LINE OF SAID LOT, WHICH LINE
IS ALSO THE EASTERN RIGHT OF WAY LINE OF SHORT STREET (40 FEET WIDE), AS
SAID STREET EXISTED ON OCTOBER 15, 1969, NORTH 17 degree 26' 31" WEST
(NORTH 17 degree 22' 32" WEST) 59.79 FEET; THENCE NORTH 72 degree 33' 29"
EAST (NORTH 72 degree 37' 28" EAST) 5.00 FEET; THENCE SOUTH 17 degree 26'
31" EAST (SOUTH 17 degree 22' 32" EAST) 4.82 FEET; THENCE SOUTHEASTERLY
ALONG THE ARC OF A 13.00 FOOT RADIUS TANGENT CURVE TO THE LEFT THROUGH A
CENTRAL ANGLE OF 50 degree 00' 00" A DISTANCE OF 11.35 (11.34) FEET; THENCE
SOUTH 67 degree 26' 31" EAST (SOUTH 67 degree 22' 32" EAST) TANGENT TO LAST
SAID CURVE 18.74 FEET; THENCE SOUTHEASTERLY ALONG THE ARC OF A 42.00 FOOT
RADIUS TANGENT CURVE TO THE RIGHT THROUGH A CENTRAL ANGLE OF 3 degree 59'
20" (3 degree 49' 54") A DISTANCE OF 2.92 (2.81) FEET TO A POINT ON THE
BOUNDARY COMMON TO LOT 49 AND LOT 2 OF THE AFORESAID BLOCK 5, WHICH POINT
IS NORTH 22 degree 43' 21" EAST (NORTH 22 degree 37' 28" EAST) 40.58 FEET
FROM THE POINT OF BEGINNING, THENCE ALONG THE LAST AFORESAID BOUNDARY SOUTH
22 degree 43' 21" WEST (SOUTH 22 degree 37' 28" WEST) 40.58 FEET TO THE
ACTUAL POINT OF BEGINNING.
PARCEL TWO:
PORTION OF PRINGLE AVENUE (NOW KNOWN AS NORTH CALIFORNIA BOULEVARD), AS
SHOWN ON THE MAP OF PRINGLE ADDITION TO THE TOWN OF WALNUT CREEK, FILED
MAY 6, 1912 IN BOOK 7 OF MAPS AT PAGE 154, CONTRA COSTA COUNTY RECORDS,
DESCRIBED AS FOLLOWS:
BEGINNING AT THE EASTERLY CORNER OF LOT 7, BLOCK 5 OF SAID MAP OF PRINGLE
ADDITION; THENCE FROM SAID POINT OF BEGINNING SOUTH 67 degree 16' 39" EAST
(SOUTH 68 degree 19' 00" EAST) ALONG THE DIRECT EXTENSION SOUTHEASTERLY OF
THE NORTHEASTERLY LINE OF SAID LOT 7, 26.27 (26.28) FEET TO THE
NORTHWESTERLY LINE OF NORTH CALIFORNIA BOULEVARD, AS IT EXISTED ON FEBRUARY
10, 1981; THENCE ALONG SAID NORTHWESTERLY LINE AS FOLLOWS: SOUTH 26 degree
09' 48" WEST (SOUTH 25 degree 13' 24" WEST) 110.17 (110.41) FEET;
SOUTHWESTERLY ALONG A TANGENT CURVE TO THE RIGHT WITH A RADIUS OF 972.00
(972.07) FEET, THROUGH A CENTRAL ANGLE OF 6 degree 57' 40", AN ARC DISTANCE
OF 118.09 (118.10) FEET; AND SOUTH 33 degree 07' 28" WEST (SOUTH 32 degree
11' 04" WEST) 20.58 (21.91) FEET TO THE DIRECT EXTENSION SOUTHEASTERLY OF
THE SOUTHWESTERLY LINE OF LOT 3 OF SAID BLOCK 5, MAP OF PRINGLE ADDITION;
THENCE LEAVING SAID NORTHWESTERLY LINE OF NORTH CALIFORNIA BOULEVARD, NORTH
67 degree 16' 39" WEST (NORTH 68 degree 19' 00" WEST) ALONG SAID EXTENSION,
12.28 (12.43) FEET TO THE SOUTHERLY CORNER OF SAID LOT 3; THENCE ALONG THE
SOUTHEASTERLY BOUNDARY LINES OF SAID BLOCK 5 AS FOLLOWS: NORTHEASTERLY
ALONG A CURVE TO THE LEFT WITH A RADIUS OF 265.40 (265.42) FEET, THROUGH A
CENTRAL ANGLE OF 16 degree 32' 16" (16 degree 50' 12"), AN ARC DISTANCE OF
76.61 (78.00) FEET; AND NORTH 22 degree 37' 28" EAST (NORTH 21 degree 41'
00" EAST) 171.81 (172.00) FEET TO THE POINT OF BEGINNING.
<PAGE>
PARCEL THREE:
LOT 45 IN BLOCK 5, AS SHOWN ON THE MAP OF PRINGLE ADDITION, FILED MAY 6,
1912, MAP BOOK 7, PAGE 154, CONTRA COSTA COUNTY RECORDS.
PARCEL FOUR:
ALL EASEMENTS AND RIGHTS APPURTENANT TO THE ABOVE DESCRIBED PARCELS ONE,
TWO AND THREE, SET FORTH IN THAT CERTAIN AGREEMENT CAPTIONED "EASEMENT AND
LICENSE AGREEMENT" DATED AUGUST 22, 1986, EXECUTED BY AND BETWEEN C-C
CALIFORNIA PLAZA PARTNERSHIP, A CALIFORNIA GENERAL PARTNERSHIP, AND TISHMAN
CALIFORNIA VENTURE, A CALIFORNIA GENERAL PARTNERSHIP, RECORDED AUGUST 26,
1986 IN BOOK 13083 OF OFFICIAL RECORDS, PAGE 448, AND RECORDED AUGUST 29,
1986 IN BOOK 13091 OF OFFICIAL RECORDS, PAGE 838.
PARCEL FIVE:
RIGHT OF WAY CREATED IN REFERENCE TO PARCELS ONE, TWO AND THREE ABOVE IN
THAT CERTAIN "GRANT OF RECIPROCAL EASEMENTS" DATED JULY 7, 1987, EXECUTED
BY AND BETWEEN C-C CALIFORNIA PLAZA PARTNERSHIP, A CALIFORNIA GENERAL
PARTNERSHIP, THE NORTHWESTERN MUTUAL LIFE INSURANCE COMPANY, A WISCONSIN
CORPORATION, AND WALNUT CREEK CENTER II JOINT VENTURE, A CALIFORNIA GENERAL
PARTNERSHIP, RECORDED MAY 10, 1996, SERIES NO. 96-085917, OFFICIAL RECORDS,
AS FOLLOWS:
A NONEXCLUSIVE EASEMENT FOR PEDESTRIAN AND VEHICULAR INGRESS AND EGRESS
OVER, THROUGH AND ACROSS THAT PORTION OF THE PARCEL OF LAND DESCRIBED IN
EXHIBIT "C" ATTACHED TO SAID "GRANT OF RECIPROCAL EASEMENTS" (96-085917)
LYING WITHIN THE PRIVATE STREET KNOWN AS "SHORT STREET", AS SAID "SHORT
STREET" EXISTED ON JULY 7, 1987.
<PAGE>
EXHIBIT "B"
Personal Property
-----------------
<PAGE>
EXHIBIT "C-1"
Form of Tenant Estoppel
-----------------------
<PAGE>
CERTIFICATE OF TENANT
---------------------
December __, 1999
California Plaza at Walnut Creek, Inc.
c/o Heitman Capital Management LLC
180 N. LaSalle Street
Chicago, IL 60601
Re: California Plaza
Walnut Creek, California
Ladies and Gentlemen:
This letter is to confirm that the undersigned is currently the
tenant and ________________________________________ is currently the
landlord under that certain lease (which lease, together with any
amendments listed on Schedule A hereto, is herein called the "Lease") dated
_____________with an expiration date of ____________. The Lease covers our
premises located in the ________________________________________,
________________________ (the "Leased Property") (as more particularly
described in the Lease), for _____square feet of space on the ____ floor
and is, on the date of this letter, in full force and effect and binding
upon us. The term of the Lease has commenced and rent has commenced to
accrue. Further, except as expressly noted in Schedule A attached to this
letter, (1) there are no other agreements or amendments between us and no
subleases, assignments or modifications of the Lease, (2) no
representations, promises, or covenants have been made to us by the
landlord other than those expressly set forth in the Lease, (3) to our
knowledge, there are no defaults that now exist under the terms of the
Lease, whether on the part of landlord or tenant, (4) any improvements
required, under the Lease or any other agreement, to be constructed by
landlord have been completed to our satisfaction and are open for our use
and the use of our customers, employees and invitees, (5) we have accepted
possession of and are currently occupying the Leased Property, (6) to our
knowledge, we currently have no defenses, offsets or abatements under the
Lease, (7) we have paid no rent or other sums more than 30 days in advance
to landlord (other than our security deposit described in Schedule A),
(8) our current rental obligations are as described in Schedule A and we
have made all payments through ___________, according to the monthly
payment schedule set forth in Schedule A, (9) we have paid in full all
items of additional rent which have become due and payable under the Lease,
and (10) we have no option to purchase the Leased Property nor any options
to renew, expand, terminate or rights of first refusal or opportunity with
respect to the Leased Property except for ____________________________.
We do not currently engage in or permit and have not in the past
engaged in or permitted, within or about the Leased Property, any handling,
storage, generation, discharge or disposal of any toxic or hazardous
substances, materials or wastes which are regulated under any federal,
state, county or municipal laws regulations, ordinances, orders or
directives.
There are no actions, whether voluntary or otherwise, pending against
the undersigned or any guarantor of the undersigned's obligations under the
Lease pursuant to the bankruptcy or insolvency laws of the United States or
any state thereof.
<PAGE>
On behalf of ourselves and our successors and assigns, we hereby
authorize each of you to forward or otherwise deliver this letter, or a
copy hereof, to any third party with which you are dealing in connection
with any sale, joint venture, financing or other transaction involving the
subject property, and each such party and you and its and your successors
and assigns will be entitled to rely on this letter in connection with such
transaction.
____________________________________,
a __________________________________
By: ________________________________
Name: __________________________
Title: ___________________________
<PAGE>
Schedule A
----------
Name of Tenant: _________________________________________________
Lease Amendments, if any: _______________________________________
Security Deposit, if any: ______________________________________
Monthly Fixed Rental Obligations: ______________________________
Additional Rental Obligations, if any: We are responsible for and are
currently paying landlord a full prorata share of Basic Operating Costs
based on no less that ______% occupancy. Tenant's Proportionate Share is
______%. With respect thereto, we are currently paying $__________ per
month. We are responsible for all utility charges (whether supplied by
landlord or the utility company).
Monthly Payments made through: _________________________________
Additional Matters, if any:
<PAGE>
EXHIBIT "C-2
Form of Previously Delivered Tenant Estoppel
--------------------------------------------
<PAGE>
EXHIBIT "C-3"
[FORM OF]
SELLER'S SUBSTITUTE ESTOPPEL CERTIFICATE
Re: California Plaza
Walnut Creek, California (the "Property")
Ladies and Gentlemen:
Pursuant to Paragraph 4(C) of that certain Purchase Agreement
("Purchase Agreement") dated December __, 1999, by and between C-C
California Plaza Partnership, a California partnership ("Seller") and
California Plaza at Walnut Creek, Inc., a Florida corporation ("Buyer"),
subject to the limitations provided in Paragraphs 7(A), 7(C) and 9(B) of
the Purchase Agreement, Seller hereby certifies that with respect to the
lease, as amended (the "Lease") more particularly described in the attached
Schedule "A" which is hereby incorporated (the "Schedule"):
1. The Lease constitutes the entire agreement between the tenant
thereunder and Seller with respect to the subject matter thereof, and the
Lease has not been modified, amended or supplemented in any way except by
the amendments or other agreements described in the Schedule.
2. The summary of the terms of the Lease contained in the Schedule
is true and correct.
3. Except as provided in the Schedule, to "Seller's knowledge" (as
defined in the Purchase Agreement), the tenant has not assigned or entered
into a sublease for any portion of the premises covered by the Lease and,
to Seller's knowledge, no person or firm other than the tenant or its
employees is in possession of such premises or any portion thereof.
4. To Seller's knowledge, the tenant is not in default under the
Lease, nor would be in default but for the passage of time or giving of
notice, or both. The tenant has no monetary claim, monetary off-set or
monetary counterclaim against the landlord thereunder. Seller is not in
default under the Lease, and, to Seller's knowledge, Seller would not be in
default under the Lease but for the passage of time or giving of notice or
both.
5. The undersigned is not the subject of any bankruptcy,
insolvency, debtor's relief, reorganization, receivership or other similar
proceedings.
6. The Tenant has no option, right of first refusal or otherwise
to purchase the Property or any portion thereof or any interest therein and
the only interest of the tenant in the Property is that of a tenant
pursuant to the terms of the Lease.
7. The tenant has accepted possession of the premises covered by
the Lease ("Premises"), and all improvements to be constructed on the
Premises by the landlord have been completed and any tenant construction
allowances have been paid in full except
_____________________________________________________________
8. The tenant has no claim against the landlord for any security
deposit or other deposit except $___________ which was paid pursuant to the
Lease.
Seller understand that Buyer, its lenders, purchasers and their lenders and
their respective successors and assigns will rely on this Certificate.
Very truly yours,
a ______________________________
By:
------------------------------
Name:
------------------------------
Title:
------------------------------
<PAGE>
EXHIBIT "D"
GRANT DEED
----------
Recording Requested By and
When Recorded Mail To:
________________________ |
________________________ |
________________________ |
________________________ |
Attention: _____________ |
APN No.:
______________
DOCUMENTARY TRANSFER TAX - SEE SEPARATE TRANSFER TAX STATEMENT
GRANT DEED
FOR VALUE RECEIVED, ________________________________________,
a ________________________________________ ("Grantor"), grants to
______________________________, a _________________________ ("Grantee"),
all that certain real property (the "Property") situated in the City of
________________________________________, County of ____________________,
State of California, and more particularly described in Exhibit A attached
hereto and incorporated herein by reference.
The Property is conveyed to Grantee subject to: (a) all taxes
and assessments, both general and special, not now due and payable; (b) all
building and zoning ordinances, laws, regulations and restrictions by
municipal or other governmental authority; (c) any and all easements,
rights of way, encumbrances, conditions, covenants, restrictions,
reservations and exceptions of record; and (d) all matters, including, but
not limited to, road, highway, pipeline, railroad and utility easements
which would be disclosed by a survey and inspection of the Property.
IN WITNESS WHEREOF, the undersigned has executed this Grant
Deed on ____________, 1999.
a______________________________
By:
------------------------------
Name:
------------------------------
Title:
------------------------------
"Seller"
<PAGE>
EXHIBIT "E"
ASSIGNMENT AND ASSUMPTION OF LEASES
-----------------------------------
THIS ASSIGNMENT AND ASSUMPTION OF LEASES ("Assignment"), dated as of
this ____ day of December, 1999, is made by and between C-C CALIFORNIA
PLAZA PARTNERSHIP, a California general partnership ("Assignor"), and
________________________, a __________________________ having an address
at____________ ("Assignee")
WITNESSETH:
WHEREAS, Assignor is conveying to Assignee, certain land and
improvements located in the State of California, County of Contra Costa,
City of Walnut Creek, and known as "California Plaza", being more
particularly described on Exhibit "A" (collectively, the "Property")
WHEREAS, Assignor heretofore has entered into, as lessor, or is the
assignee of the lessor's interest in, certain leases, lease guarantees and
lease amendments, all as identified on Exhibit "B" attached hereto (the
"Leases"), for portions of the Property with the various parties identified
on Exhibit "B" hereto as Lessees; and
WHEREAS, Assignee desires to acquire from Assignor, and Assignor
desires to transfer and assign to Assignee, all the Assignor's rights,
title and interest as Lessor in the Leases.
NOW, THEREFORE, for and in consideration of the premises and the
covenants and agreements herein set forth and other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, Assignor hereby assigns, transfers and conveys to Assignee
and Assignee hereby accepts from Assignor, all of Assignor's right, title
and interest in, to, and under of each of the Leases including without
limitation, all rents thereunder and those certain estoppel certificates
given by the lessee under each of the Leases.
1. Acceptance. Assignee does hereby accept this Assignment of
Leases and specifically assumes and agrees to pay, keep, perform and
discharge all of the liabilities, terms, covenants, obligations and
agreements on the part of Assignor to be paid, kept, performed and
discharged under the Leases accruing on and after the date hereof and
agrees to protect Assignor, its successors and assigns, from and to be
responsible for all liabilities, costs, expenses, judgments, damages,
claims and demands accruing under the Leases on and after the date hereof.
2. Representations and Warranties This Assignment is given
pursuant to that certain Purchase Agreement ("Agreement") dated as of
December __, 1999, between the Assignor, as seller, and Assignee, as
buyer, respecting the purchase and sale of that property commonly known as
"California Plaza" located in the City of Walnut Creek, County of Contra
Costa, State of California (the "Property"). The Agreement provides for,
among other things, the assignment provided for herein. Subject to the
limitations of liability provided in Paragraphs 7(A), 7(C) and 9(B) of the
Agreement, Assignor hereby agrees to protect Assignee, its successors and
assigns, from all third party monetary claims accruing under the Lease
prior to the date hereof and to be responsible for, all third party
monetary liabilities, costs, expenses, judgments, damages, claims, and
demands accruing under the Leases prior to the date hereof.
3. Notice to Tenants. Assignor hereby authorizes Assignee to give
notice in writing of this Assignment at any time to any tenant under any of
the Leases.
4. Specific Assignment. This Assignment is intended to cover all
of the Leases. Nevertheless, Assignor agrees that it will, at any time and
from time to time, on demand by Assignee, execute specific assignments of
any of the Leases.
5. Governing Law. This Assignment has been executed and delivered
for value at Contra Costra County, California, on the date first above
written. This Assignment shall be governed by and construed in accordance
with the laws of the State of California.
IN WITNESS WHEREOF, Assignor and Assignee have executed this
Assignment as of the date first above written.
ASSIGNOR:
C-C CALIFORNIA PLAZA PARTNERSHIP,
a California general partnership
By: CARLYLE REAL ESTATE LIMITED PARTNERSHIP-XV,
an Illinois limited partnership,
General Partner
By: JMB REALTY CORPORATION,
a Delaware corporation,
General Partner
By:
------------------------------
Name:
------------------------------
Title:
------------------------------
ASSIGNEE:
_________________________________________
a _______________________________________
By:
------------------------------
Name:
------------------------------
Title:
------------------------------
[ADD APPROPRIATE ACKNOWLEDGEMENTS]
<PAGE>
EXHIBIT "F"
Exceptions to Seller's Representations and Warranties
-----------------------------------------------------
None.
<PAGE>
EXHIBIT "G"
Documents Requested
-------------------
Form Lease
All Leases and amendments
Leasing Status reports, weekly basis
Lease proposals
Service and Purchase Contracts
Equipment Leases
Union Contracts
Other Contracts and Agreements
Operating Licenses and Permits
Lease Commission Agreements and Schedules of Commissions Payable
Current Year Operating Budget
Operating Statements, past two years and current year, monthly basis
Receivables Report, update on monthly basis
Rent Roll, update on monthly basis
Billing Register, update on monthly basis
Escalation Work Papers and Base Year Amount Details
Utility Invoices, past two years and current monthly
Real Estate Tax Bills, past two years
Current Notice of Assessment Valuation
Tax Parcel Map
Real Estate Consultant Report
Tenant Credit Files
Tenant Financial Statements
Schedule of Capital and Tenant Improvements
Current Schedule of Insurance
Pending Insurance Claims
List of Personnel and Wages
Lease and Tenant Files, to be reviewed at property
Vendor Files, to be reviewed at property
Construction Files, to be reviewed at property
Other Property Files, to be reviewed at property
List of Personal Property
Demising/Leasing/Site Plan
Plans and Specifications
a. Architectural
b. Structural
c. Civil
d. Mechanical
e. Landscaping
f. Sprinkler
g. Tenant
Certificates of Occupancy, building and tenant.
Construction Contracts
Guaranties and Warranties
Existing Third party Reports
a. Structural Engineering
b. Seismic and/or PML Studies
c. Environmental and Asbestos
d. Soils
e. Radon
f. Geotechnical
g. Ground Water Monitoring
h. Sprinkler Test
i. Elevator Consultant
Existing Owner's Title Policy
Underlying Recorded Documents
Existing Survey.
Letter from Nabih Youssef & Associates to Mr. Jim Abbey dated September 29,
1999 regarding the Executive Report for California Plaza, 2121 North
California Boulevard, Walnut Creek, California, 99601-10.
<PAGE>
EXHIBIT "H"
List of Leases
--------------
<PAGE>
EXHIBIT "I"
Service Agreements
------------------
<PAGE>
EXHIBIT "J"
Environmental Reports
---------------------
None.
<PAGE>
EXHIBIT "K"
Surveyor's Certification
TO: THE STATE BOARD OF ADMINISTRATION OF FLORIDA, an agent of the System
Trust Fund, a body corporate and governmental agency of the State of
Florida, California Plaza at Walnut Creek, Inc., a Florida corporation,
their successors and assigns and Chicago Title Insurance Company
I hereby certify that on this the _____________ day of December,
1999;
(A) This survey was made on the ground as per the field notes shown
on this survey and correctly shows (i) the boundaries and areas of the
subject property and the size, location, and type of buildings and
improvements thereon (if any) and the distance therefrom to the nearest
facing exterior property lines of the subject property; (ii) the location
of all rights-of-way, easements, and any other matters of record (or of
which I have knowledge or have been advised, whether or not of record)
affecting the subject property; (iii) the location of the parking areas on
the subject property showing the number of parking spaces provided thereby;
(iv) all abutting dedicated public streets providing access to the subject
property together with the width and name thereof; and (v) all other
significant items on the subject property;
(B) Except as shown on the survey, there are no (i) encroachments
upon the subject property by improvements on adjacent property; (ii)
encroachments on easements or on adjacent property, streets, or alleys by
any improvements on the subject property; (iii) party walls; or (iv)
conflicts or protrusions;
(C) Adequate ingress to and egress from the subject property is
provided by (name of streets), the same being paved, dedicated public
right(s)-of-way maintained by (name of maintaining authority);
(D) All required building set back lines on the subject property
are located as shown hereon; and
(E) The subject property is not situated within a flood hazard area
(as defined in the document entitled "Department of Housing and Urban
Development, Federal Insurance Administration - Special Flood Hazard Area
Maps") nor is it shown on any U. S. Department of H.U.D. Flood Insurance
Boundary Map.
(F) I further certify that this Survey complies with the Minimum
Standard Detail Requirements for ALTA/ACSM Land Title Surveys as adopted by
the American Land Title Association and the America Congress of Surveying
and Mapping including Table A thereto.
Registered Public Surveyor
Registration No.
(Name, Address, Telephone Number
and Job Number of Surveyor)
<PAGE>
EXHIBIT "L"
BILL OF SALE AND ASSIGNMENT
---------------------------
KNOW ALL MEN BY THESE PRESENTS, that concurrently with the execution and
delivery hereof, C-C CALIFORNIA PLAZA PARTNERSHIP, a California general
partnership ("Assignor"), and ________________________, a
__________________________ having an address at____________ ("Assignee")
WITNESSETH:
WHEREAS, Assignor is conveying to Assignee, certain land and
improvements located in the State of California, County of Contra Costa,
City of Walnut Creek, and known as "California Plaza", being more
particularly described on Exhibit "A" (collectively, the "Property").
NOW, THEREFORE, in consideration of the receipt of TEN DOLLARS
($10.00) and other good and valuable consideration, in hand paid by
Assignee to Assignor, the receipt and sufficiency of which are hereby
acknowledged by Assignor, Assignor does hereby CONVEY UNTO Assignee, its
successors and assigns, all right, title and interest of Assignor in and to
those items of personal property described in Exhibit "B" attached hereto
and made a part hereof, all right, title and interest of Seller in and to
the name "California Plaza" and to the internet website commonly known as
"Calplaza.com", and, to the extent assignable, all right, title and
interest of Seller in and to all permits, entitlements, warranties,
business licenses, plans and specifications, contract rights, agreements,
tenant lists, advertising material and telephone exchange numbers relating
solely to the Property, but excluding personal property owned by tenants in
their capacity as tenants (collectively, the "Personal Property").
This Bill of Sale is given pursuant to that certain Purchase
Agreement ("Agreement") dated as of __________, 1999, between Assignor and
Assignee, respecting the purchase and sale of that property commonly known
as "California Plaza" located in the City of Walnut Creek, County of Contra
Costa, State of California (the "Property"). The Agreement provides for,
among other things, the assignment provided for herein. The covenants,
agreements, and limitations (including, but not limited to, the limitations
of liability provided in Paragraphs 7(A), 7(C) and 9(B) of the Agreement)
provided in the Agreement with respect to the property conveyed hereunder
are hereby incorporated herein by this reference as if herein set out in
full and shall inure to the benefit of and shall be binding upon Assignor
and Assignee, and their respective successors and assigns. The property
and rights conveyed hereunder are is conveyed "as is", without warranty or
representation, except as expressly provided in (and subject to the
limitations of) the Agreement.
<PAGE>
IN WITNESS WHEREOF, Assignor has caused this Bill of Sale and
Assignment to be executed as of the _____day of December 1999.
ASSIGNOR:
C-C CALIFORNIA PLAZA PARTNERSHIP,
a California general partnership
By: CARLYLE REAL ESTATE LIMITED PARTNERSHIP-XV,
an Illinois limited partnership,
General Partner
By: JMB REALTY CORPORATION,
a Delaware corporation,
General Partner
By:
------------------------------
Name:
------------------------------
Title:
------------------------------
ASSIGNEE:
_________________________________________
a _______________________________________
By:
------------------------------
Name:
------------------------------
Title:
------------------------------
[ADD APPROPRIATE ACKNOWLEDGEMENTS]
<PAGE>
EXHIBIT "M"
ASSIGNMENT AND ASSUMPTION OF SERVICE CONTRACTS
----------------------------------------------
THIS ASSIGNMENT AND ASSUMPTION OF SERVICE CONTRACTS ("Assignment")
dated as of this ____ day of December, 1999, is made by and between C-C
CALIFORNIA PLAZA PARTNERSHIP, a California general partnership
("Assignor"), and ________________________, a __________________________
having an address at____________ ("Assignee")
WITNESSETH:
WHEREAS, Assignor is conveying to Assignee, certain land and
improvements located in the State of California, County of Contra Costa,
City of Walnut Creek, and known as "California Plaza", being more
particularly described on Exhibit "A" (collectively, the "Property")
WHEREAS, Assignor has heretofore entered into certain service
contracts specified in Exhibit "B" which is attached hereto (the "Service
Contracts") in connection with the Property; and
NOW, THEREFORE, for and in consideration of Ten Dollars ($10.00) and
other good and valuable consideration the receipt and sufficiency of which
is hereby acknowledged, to the extent assignable or transferable, Assignor
hereby assigns, transfers and conveys to Assignee and Assignee hereby
accepts from Assignor all of Assignor's rights, title and interest in, to,
under and by virtue of the service contracts described on Exhibit "B"
(collectively "Service Contracts").
1. Acceptance. Assignee does hereby accept this Assignment of
Service Contracts and specifically assumes and agrees to pay, keep, perform
and discharge all of the liabilities, terms, covenants, obligations and
agreements on the part of Assignor to be paid, kept, performed and
discharged under the Service Contracts accruing on and after the date
hereof and agrees to protect Assignor, its successors and assigns, from and
to be responsible for all liabilities, costs, expenses, judgments, damages,
claims and demands accruing under the Service Contracts on and after the
date hereof.
2. Representations and Warranties. This Assignment is given
pursuant to that certain Purchase Agreement ("Agreement") dated as of
December __, 1999, between the Assignor, as seller, and Assignee, as
buyer, respecting the purchase and sale of that property commonly known as
"California Plaza" located in the City of Walnut Creek, County of Contra
Costa, State of California (the "Property"). The Agreement provides for,
among other things, the assignment provided for herein. Subject to the
limitations of liability provided in Paragraphs 7(A), 7(C) and 9(B) of the
Agreement, Assignor hereby agrees to protect Assignee, its successors and
assigns, from all third party monetary claims accruing under the Service
Contracts prior to the date hereof, and to be responsible for, all third
party liabilities, costs, expenses, judgments, damages, claims, and demands
accruing under the Service Contracts prior to the date hereof.
3. Successors and Assigns. This Assignment of Service Contracts
shall be binding upon and inure to the benefit of the parties hereto and
their respective successors and assigns.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Assignment of
Service Contracts to be executed as of the day and year first written
above.
ASSIGNOR:
C-C CALIFORNIA PLAZA PARTNERSHIP,
a California general partnership
By: CARLYLE REAL ESTATE LIMITED PARTNERSHIP-XV,
an Illinois limited partnership,
General Partner
By: JMB REALTY CORPORATION,
a Delaware corporation,
General Partner
By:
------------------------------
Name:
------------------------------
Title:
------------------------------
ASSIGNEE:
_________________________________________
a _______________________________________
By:
------------------------------
Name:
------------------------------
Title:
------------------------------
[ADD APPROPRIATE ACKNOWLEDGEMENTS]
<PAGE>
EXHIBIT "N"
ASSIGNMENT AND ASSUMPTION OF CONSTRUCTION WARRANTIES
----------------------------------------------------
THIS ASSIGNMENT AND ASSUMPTION OF CONSTRUCTION WARRANTIES
("Assignment") dated as of this ____ day of December, 1999, is made by and
between C-C CALIFORNIA PLAZA PARTNERSHIP, a California general partnership
("Assignor"), and ________________________, a __________________________
having an address at____________ ("Assignee")
WITNESSETH:
WHEREAS, Assignor is conveying to Assignee, certain land and
improvements located in the State of California, County of Contra Costa,
City of Walnut Creek, and known as "California Plaza", being more
particularly described on Exhibit "A" (collectively, the "Property")
WHEREAS, Assignor has heretofore entered into certain contracts
construction of improvements on the Property and the purchase of equipment
for use on the Property (the "Construction Contracts"), including without
limitation, those contracts specified inExhibit "B" which is attached
hereto, in connection with the Property; and
WHEREAS, Assignor and Assignee desire that Assignor shall assign to
Assignee and Assignee shall assume from Assignor, any warranties or
guaranties that have been issued with respect to the Construction Contracts
to the extent that the same are assignable (the Construction Warranties").
NOW, THEREFORE, for and in consideration of Ten Dollars ($10.00) and
other good and valuable consideration the receipt and sufficiency of which
is hereby acknowledged, to the extent assignable or transferable, Assignor
hereby assigns, transfers and conveys to Assignee and Assignee hereby
accepts from Assignor all of Assignor's rights, title and interest in, to,
under and by virtue of the Construction Warranties.
This Assignment of Construction Warranties shall be binding upon and
inure to the benefit of the parties hereto and their respective successors
and assigns.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Assignment of
Construction Warranties to be executed as of the day and year first written
above.
ASSIGNOR:
--------
C-C CALIFORNIA PLAZA PARTNERSHIP,
a California general partnership
By: CARLYLE REAL ESTATE LIMITED PARTNERSHIP-XV,
an Illinois limited partnership,
General Partner
By: JMB REALTY CORPORATION,
a Delaware corporation,
General Partner
By:
------------------------------
Name:
------------------------------
Title:
------------------------------
ASSIGNEE:
_________________________________________
a _______________________________________
By:
------------------------------
Name:
------------------------------
Title:
------------------------------
[ADD APPROPRIATE ACKNOWLEDGEMENTS]
<PAGE>
EXHIBIT "O"
TENANTS NOT IN OCCUPANCY / DELINQUENT TENANTS
