<PAGE>
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549-1004
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported) July 12, 1999
-------------------------------
FIRST CAPITAL INCOME PROPERTIES, LTD. - SERIES XI
- --------------------------------------------------------------------------------
(Exact name of registrant as specified in its charter)
Illinois 0-15538 36-3364279
- --------------------------------------------------------------------------------
(State or other jurisdiction (Commission (IRS Employer
of incorporation) File Number) Identification No.)
Two North Riverside Plaza, Suite 700, Chicago, Illinois 60606-2607
- --------------------------------------------------------------------------------
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code (312) 207-0020
-----------------------------
- --------------------------------------------------------------------------------
(Former name or former address, if changed since last report.)
This document consists of 101 pages.
The Exhibit Index is located on page 3.
<PAGE>
ITEM 2. DISPOSITION OF ASSETS
First Capital Prentice Avenue Associates, a joint venture in which First Capital
Income Properties, Ltd. - Series XI (the "Registrant") owns a 50% interest, sold
the real property commonly known as Prentice Plaza (the "Property"), located in
Englewood, Colorado to Gateway Canyon, Inc., a California corporation (the
"Purchaser").
The closing of this transaction occurred on July 12, 1999. The Property was sold
for a cash price of $22,100,000 to an unrelated party pursuant to arm's-length
negotiations. Sales Proceeds received by the Registrant approximated $6,175,000,
which was net of estimated closing expenses and repayment of the outstanding
mortgage indebtedness encumbering the Property. For the quarter ending September
30, 1999, the Registrant will record a net gain for financial reporting purposes
of approximately $4,600,000 from this transaction. The Partnership is currently
evaluating its cash needs and has added the Sale Proceeds to working capital
reserves. In its Form 10-Q of the quarter ended June 30, 1999, the Partnership
will provide further information regarding the disposition of Sale Proceeds.
Page 2
<PAGE>
ITEM 7. PRO FORMA FINANCIAL INFORMATION AND EXHIBITS
- -----------------------------------------------------
(page 5) Pro Forma Financial Information
Exhibits
2.1 (page 10) Closing statement and supporting statements, dated
July 12, 1999, between Seller and Purchaser.
2.2 (page 19) Real Estate Sale Agreement executed in March, 1999,
between First Capital Prentice Avenue Associates, an Illinois
joint venture ("Seller") and Purchaser, as assignee.
2.3 (page 82) First amendment to real estate sale agreement executed
in March 1999, between Purchaser and Seller.
2.4 (page 84) Second amendment to real estate sale agreement executed
in April 1999, between Purchaser and Seller.
2.5 (page 86) Third amendment to real estate sale agreement executed
on May 11, 1999, between Purchaser and Seller.
2.6 (page 89) Fourth amendment to real estate sale agreement executed
on June 14, 1999, between Purchaser and Seller.
2.7 (page 92) Fifth amendment to real estate sale agreement executed
on June 18, 1999, between Purchaser and Seller.
2.8 (page 96) Sixth amendment to real estate sale agreement executed
on June 18, 1999, between Purchaser and Seller.
2.9 (page 99) Seventh amendment to real estate sale agreement
executed on July 8, 1999, between Purchaser and Seller.
No information is required under Items 1, 3, 4, 5, 6 and 8; therefore, those
Items have been omitted.
Page 3
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
FIRST CAPITAL INCOME PROPERTIES, LTD. - SERIES XI
By: FIRST CAPITAL FINANCIAL CORPORATION
As General Partner
July 27, 1999 By: /s/ NORMAN M. FIELD
- ------------- ----------------------------------------
(Date) NORMAN M. FIELD
Vice President - Finance and Treasurer
Page 4
<PAGE>
FIRST CAPITAL INCOME PROPERTIES, LTD. - SERIES XI
The accompanying unaudited Pro Forma Balance Sheet has been presented as if the
sales of the Property and Burlington Office Center I, II and III ("Burlington")
(sold on May 11, 1999) had occurred on March 31, 1999. The accompanying
unaudited Pro Forma Statement of Income and Expenses for the three months ended
March 31, 1999 has been presented as if the sales of the Property, Burlington
and the Marquette land parcel (as described in the Partnership's Form 10-Q for
the quarter ended March 31, 1999) had occurred on December 31, 1998. The
accompanying unaudited Pro Forma Statement of Income and Expenses for the year
ended December 31, 1998 has been presented as if the sales of the Property,
Burlington and the Marquette land parcel had occurred on December 31, 1997. In
the opinion of the General Partner, all adjustments necessary to reflect the
financial condition and results of operations of the Partnership exclusive of
the Property, Burlington and the Marquette land parcel have been made. The
unaudited pro forma financial statements are not necessarily indicative of what
the actual financial position and results of operations would have been had such
transactions actually occurred as of December 31, 1997 and 1998 and March 31,
1999, nor do they purport to represent the results of operations of the
Registrant for future periods.
Page 5
<PAGE>
FIRST CAPITAL INCOME PROPERTIES, LTD. - SERIES XI
PRO FORMA BALANCE SHEET
(Unaudited)
(All dollars rounded to nearest 00s)
ASSETS
<TABLE>
<CAPTION>
Prentice Plaza Previous Pro Forma
March 31, Pro Forma Pro Forma Balance
1999 Adjustments Adjustments Sheet
------------ ------------ ------------ ------------
<S> <C> <C> <C> <C>
Investment in commercial rental properties:
Land $ 6,019,100 $ (1,139,600) $ (3,000,000) $ 1,879,500
Buildings and improvements 42,819,500 (8,865,500) (16,624,900) 17,329,100
------------ ------------ ------------ ------------
48,838,600 (10,005,100) (19,624,900) 19,208,600
Accumulated depreciation and amortization (17,545,300) 3,791,500 6,060,000 (7,693,800)
------------ ------------ ------------ ------------
Total investment properties, net of
accumulated depreciation and amortization 31,293,300 (6,213,600) (13,564,900) 11,514,800
Cash and cash equivalents 3,748,400 5,846,300 1,185,900 10,780,600
Investments in debt securities 985,400 985,400
Rents receivable 395,300 6,000 (204,300) 197,000
Other assets (including loan acquisition costs,
net of accumulated amortization of $591,600
and $262,000) 197,700 (24,700) (181,300) (8,300)
------------ ------------ ------------ ------------
$ 36,620,100 $ (386,000) $(12,764,600) $ 23,469,500
============ ============ ============ ============
LIABILITIES AND PARTNERS' CAPITAL
Liabilities:
Mortgage loans payable $ 25,019,000 $ (4,746,000) $(17,898,000) $ 2,375,000
Front-End Fees Loan payable to Affiliate 8,295,200 8,295,200
Accounts payable and accrued expenses 1,408,200 (265,000) (161,100) 982,100
Due to Affiliates 2,087,400 2,087,400
Security deposits 205,700 (59,900) (71,800) 74,000
State income taxes payable (193,800) (193,800)
Other liabilities 109,900 (14,500) 95,400
------------ ------------ ------------ ------------
37,125,400 (5,085,400) (18,324,700) 13,715,300
------------ ------------ ------------ ------------
Partners' capital:
General Partner (deficit) (505,300) 1,150,000 973,900 1,618,600
Limited Partners (57,621 Units issued and
outstanding) 3,549,400 4,586,200 8,135,600
------------ ------------ ------------ ------------
(505,300) 4,699,400 5,560,100 9,754,200
------------ ------------ ------------ ------------
$ 36,620,100 $ (386,000) $(12,764,600) $ 23,469,500
============ ============ ============ ============
</TABLE>
The accompanying notes are an integral part of the pro forma financial
statements
Page 6
<PAGE>
FIRST CAPITAL INCOME PROPERTIES, LTD. -- SERIES XI
PRO FORMA STATEMENT OF INCOME AND EXPENSES
(Unaudited)
(All dollars rounded to nearest 00s except per Unit amounts)
<TABLE>
<CAPTION>
Three Months Ended March 31, 1999
-------------------------------------------------------
Pro Forma
Statement of Current Previous Statement of
Income and Pro Forma Pro Forma Income and
Expenses Adjustments Adjustments Expenses
------------ ----------- ----------- ------------
<S> <C> <C> <C> <C>
Income:
Rental $2,181,500 $(374,600) $ (804,700) $1,002,200
Interest 47,300 (300) 47,000
Gain on sale of land parcel 291,800 (291,800) 0
---------- --------- ----------- ----------
2,520,600 (374,600) (1,096,800) 1,049,200
---------- --------- ----------- ----------
Expenses:
Interest
Affiliates 144,900 144,900
Nonaffiliates 487,000 (83,300) (334,800) 68,900
Depreciation and amortization 367,800 (77,700) (162,600) 127,500
Property operating:
Affiliates 37,800 (10,000) (4,200) 23,600
Nonaffiliates 492,300 (51,000) (116,100) 325,200
Real estate taxes 352,000 (68,200) (184,500) 99,300
Insurance - Affiliate 30,500 (1,600) (3,800) 25,100
Repairs and maintenance 298,800 (43,200) (101,200) 154,400
General and administrative:
Affiliates 6,200 6,200
Nonaffiliates 33,400 33,400
---------- --------- ----------- ----------
2,250,700 (335,000) (907,200) 1,008,500
---------- --------- ----------- ----------
Net income $ 269,900 $ (39,600) $ (189,600) $ 40,700
========== ========= =========== ==========
Net income allocated to General Partner $ 269,900 $ (400) $ (269,100) $ 400
========== ========= =========== ==========
Net income allocated to Limited Partners $ 0 $ (39,200) $ 79,500 $ 40,300
========== ========= =========== ==========
Net income allocated to Limited Partners
per Unit (57,621 Units outstanding) $ 0.00 $ (0.68) $ 1.38 $ 0.70
========== ========= =========== ==========
</TABLE>
The accompanying notes are an integral part of
the pro forma financial statements
Page 7
<PAGE>
FIRST CAPITAL INCOME PROPERTIES, LTD. -- SERIES XI
PRO FORMA STATEMENT OF INCOME AND EXPENSES
(All dollars rounded to nearest 00s except per Unit amounts)
<TABLE>
<CAPTION>
Year Ended December 31, 1998
---------------------------------------------------------
Pro Forma
Statement of
Statement of Current Previous Income and
Income and Adjustments Adjustments Expenses
Expenses (Unaudited) (Unaudited) (Unaudited)
------------ ----------- ----------- ------------
<S> <C> <C> <C> <C>
Income:
Rental $8,934,600 $(1,468,700) $(3,075,400) $4,390,500
Interest 199,600 (200) (3,700) 195,700
---------- ----------- ----------- ----------
9,134,200 (1,468,900) (3,079,100) 4,586,200
---------- ----------- ----------- ----------
Expenses:
Interest
Affiliates 640,800 640,800
Nonaffiliates 2,070,700 (355,100) (1,468,400) 247,200
Depreciation and amortization 1,491,300 (326,900) (627,200) 537,200
Property operating:
Affiliates 166,600 (46,500) (21,800) 98,300
Nonaffiliates 1,992,200 (167,000) (462,500) 1,362,700
Real estate taxes 1,288,000 (233,100) (448,200) 606,700
Insurance - Affiliate 104,200 (6,600) (10,700) 86,900
Repairs and maintenance 1,003,500 (160,500) (388,300) 454,700
General and administrative:
Affiliates 27,800 27,800
Nonaffiliates 135,000 135,000
---------- ----------- ----------- ----------
8,920,100 (1,295,700) (3,427,100) 4,197,300
---------- ----------- ----------- ----------
Net income $ 214,100 $ (173,200) $ 348,000 $ 388,900
========== =========== =========== ==========
Net income allocated to General Partner $ 214,100 $ (1,700) $ (208,500) $ 3,900
========== =========== =========== ==========
Net income allocated to Limited Partners $ 0 $ (171,500) $ 556,500 $ 385,000
========== =========== =========== ==========
Net income allocated to Limited Partners
per Unit (57,621 Units outstanding) $ 0.00 $ (2.98) $ 9.66 $ 6.68
========== =========== =========== ==========
</TABLE>
The accompanying notes are an integral part of
the pro forma financial statements
Page 8
<PAGE>
FIRST CAPITAL INCOME PROPERTIES, LTD. - SERIES XI
Notes to Pro Forma Balance Sheet and
Pro Forma Statements of Income and Expenses
1) For the purpose of the Pro Forma Balance Sheet:
a) the accounts for land, buildings and improvements, accumulated
depreciation and amortization, rents receivable, other assets, accounts
payable and accrued expenses, security deposits and other liabilities have
been adjusted as of March 31, 1999 to reflect the sales of the Registrant's
interest in the Property and Burlington.
b) Cash and cash equivalents has been adjusted to include the Registrants'
portion of the net cash received from the purchasers of the Property and
Burlington, less amounts utilized to repay the Marquette Mall and Office
junior mortgage loan ("Marquette Loan").
c) mortgage loans payable has been adjusted to reflect the repayment of the
mortgage loans encumbering the Property, Burlington and the Marquette Loan
as of March 31, 1999.
2) For the purpose of the Pro Forma Statement of Income and Expenses for the
three months ended March 31, 1999:
(a) the adjustments reflect the elimination of the Registrant's interest in
the operations of the Property and Burlington.
(b) the adjustments reflect the elimination of the Registrant's sale of the
Marquette land parcel.
(c) the adjustments reflect the elimination of interest expense on the
Marquette Loan.
3) For the purpose of the Pro Forma Statement of Income and Expenses for the
year ended December 31, 1998:
(a) the adjustments reflect the elimination of the Registrant's interest in
the operations of the Property and Burlington.
(b) the adjustments reflect the elimination of interest expense on the
Marquette Loan.
Page 9
<PAGE>
CLOSING STATEMENT
PRENTICE PLAZA
Englewood, Colorado
Closing Date - July 12, 1999
================================================================================
<TABLE>
<CAPTION>
Credit Credit
Purchaser Seller
------------- --------------
<S> <C> <C>
Purchase price $22,100,000.00
Real Estate Taxes [1] 278,431.03
[See Schedule A]
Rent proration 95,775.88
[See Schedule B]
Security Deposits 115,328.79
[See Schedule C]
Service contracts [4] 180.84
[See Schedule D]
Leasing Commissions/Tenant Improvements 235,193.00
[See Schedule E]
Prepaid Rent 9,688.25
[See Schedule F]
Utilities [3] x.xx
Permits/Licenses [2] x.xx
Federal Express Lease Credit 25,000.00
------------- --------------
Sub-total 759,597.78 22,100,000.00
------------- --------------
Net amount due Seller 21,340,402.22
Earnest Money (600,000.00)
--------------
Balance of cash to be funded by Purchaser $20,740,402.22
==============
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
APPROVED: SELLER APPROVED: PURCHASER
<S> <C>
FIRST CAPITAL PRENTICE AVENUE GATEWAY CANYON, INC.,
ASSOCIATES, an Illinois joint venture a California corporation
By: First Capital Income Properties, Ltd.- By: _______________________________
Series XI, an Illinois limited partnership, joint
venturer Name:______________________________
By: First Capital Financial Corporation, a Title:_____________________________
Florida corporation, general partner
By:______________________________________________
Name:____________________________________________
Title:___________________________________________
By: First Capital Income and Growth Fund -
Series XII, and Illinois limited partnership,
joint venturer
By: Florida Capital Financial Corporation, a
Florida corporation, general partner
By:______________________________________________
Name:____________________________________________
Title:___________________________________________
</TABLE>
[1] All real estate taxes, personal property taxes and assessments relating to
the Property are to be reprorated or prorated upon receipt of actual
bill(s).
[2] To the extent that permits, if any, are not assignable they will be subject
to proration at a later date.
[3] Utility meters are to be read on 7/12/99 and Seller will pay final billing
for such utilities up to such date. Utility deposits, if any, are to be
refunded to Seller from the respective utility companies.
[4] Seller agrees to be responsible for all invoices or charges payable to
service contract vendors or other vendors of supplies or services which are
unpaid at closing and relate to periods prior to and including July 11,
1999, or which relate to periods after closing to the extent Seller received
a credit from Purchaser at closing. Purchaser agrees to be responsible for
all invoices or charges payable to service contract vendors or other vendors
of supplies or services which are unpaid at closing and relate to periods
after and including July 12, 1999, or which relate to periods before closing
to the extent Purchaser received a credit from Seller at closing.
<PAGE>
PRENTICE PLAZA
Englewood, Colorado
Closing Date - July 12, 1999
SCHEDULES TO CLOSING STATEMENT
<TABLE>
<CAPTION>
<S> <C>
Balance of cash to be funded by Purchaser: $20,740,402.22
Additional Cash Outlays by Purchaser:
1. Endorsements 6,795.00
2. 50% of Closing Fee 375.00
3. 50% of Recording Fees 250.00
4. Transfer Taxes - 100% 2,210.00
Total cash outlay by Purchaser at Closing $20,750,032.22
==============
_____________________________________________________________________________
Amount due Seller $20,740,402.22
Earnest Money 600,000.00
--------------
Total due Seller 21,340,402.22
Seller's expenses:
1. Avatech Lease Escrow (25,369.52)
2. Owner's Premium for Title Insurance Policy (15,218.00)
3. Tax Certificate (20.00)
4. 50% of Closing Fee (375.00)
5. 50% of Estimated Recording Fees (250.00)
6. Siemens Contract Lease No. 310-0001700-000 (25,407.62)
7. Payoff to Guaranty Bank (9,476,829.28)
8. Broker's Commission - Cushman Realty Corporation (221,000.00)
9. Survey Revision Cost (estimated) (220,00)
--------------
Total cash outlay by Seller at Closing (9,764,689.42)
--------------
Net amount Due Seller $11,575,712.80
==============
</TABLE>
<PAGE>
================================================================================
Schedule A
[A] REAL ESTATE TAXES:
-----------------------------------------------------------------------
<TABLE>
<CAPTION>
Estimated Real Estate Taxes for Calendar Year - 1/1/99-12/31/99 (based on 1998 tax bills)
-----------------------------------------------------------------------------------------
Parcel Number
-------------
<S> <C>
2656-13-0-6-9001 (Personal Property valued at $7,256) 228.08
2075-16-1-07-007 529,080.90
-----------
Total Estimated CY1999 Real Estate Taxes paid by Purchaser $529,308.98
-----------
Seller's portion of CY1999 Estimated Real Estate Taxes:
1/1/99-7/11/99 192 days 0.526027
-----------
Seller's pro-rata share of CY1999 Real Estate Taxes $278,431.03
-----------
CREDIT DUE PURCHASER FOR SELLER'S SHARE OF CY1999 REAL ESTATE TAXES $278,431.03
-----------
-----------
TOTAL CREDIT DUE PURCHASER FOR TAXES $278,431.03
===========
</TABLE>
================================================================================
<PAGE>
Schedule B
<TABLE>
<CAPTION>
July
--------------------------------- Purchaser
Base Escalation # of Due
[B] RENT PRORATION (1): Rent Storage, Other Total Days Purchaser
------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
Access Data Consulting, Inc. $ -- $ -- $ -- 20 $ --
Antec Corporation $ -- $ 4,009.34 $ 4,009.34 20 $ 2,586.67
Avatech Solutions of Colorado, Inc. $ -- $ -- $ -- 20 $ --
William M. Banta $ 2,077.50 $ 303.07 $ 2,380.57 20 $ 1,535.85
Born Information Services Group, Inc. $ 16,021.25 $ 1,129.04 $ 17,150.29 20 $ 11,064.70
Brokers West Real Estate Marketing $ 4,335.50 $ 306.81 $ 4,642.31 20 $ 2,995.04
and Development, Inc.
Cambior U.S.A., Inc. $ 11,349.20 $ 350.00 $ 11,699.20 20 $ 7,547.87
Colorado Land Source, Ltd. $ 1,916.67 $ 256.99 $ 2,173.66 20 $ 1,402.36
COREStaff, Inc. $ 1,979.17 $ 350.77 $ 2,329.94 20 $ 1,503.19
Countrywide Home Loans, Inc. $ 3,516.25 $ 764.66 $ 4,280.91 20 $ 2,761.88
DDD Energy, Inc. $ -- $ -- $ -- 20 $ --
DPIC Companies, Inc. $ 6,892.08 $ 639.56 $ 7,531.64 20 $ 4,859.12
Drake Beam Morin, Inc. $ 6,063.13 $ 647.35 $ 6,710.48 20 $ 4,329.34
Federal Express Corporation $ 27,201.68 $ -- $ 27,201.68 20 $ 17,549.47
Federal Express Corporation $ -- $ -- $ -- 20 $ --
G.E. Information Services, Inc. $ 623.53 $ -- $ 623.53 20 $ 402.28
Global Payment Systems, LLC $ 1,210.69 $ -- $ 1,210.69 20 $ 781.09
Guarantee Life Insurance Company $ 3,407.25 $ 246.06 $ 3,653.31 20 $ 2,356.97
Harris, Hustad, Orrino & Associates, Inc., $ 4,380.00 $ 501.17 $ 4,881.17 20 $ 3,149.14
dba Career Creators
Health Care of Colorado $ -- $ -- $ -- 20 $ --
Integrated Partnerships $ 3,402.08 $ 120.00 $ 3,522.08 20 $ 2,272.31
Kellogg Sales Company $ 5,864.33 $ 722.58 $ 6,586.91 20 $ 4,249.62
Manufactured home Communities, Inc. $ 5,015.25 $ -- $ 5,015.25 20 $ 3,235.65
Medtronic, Inc. $ 2,724.25 $ 421.57 $ 3,145.82 20 $ 2,029.56
Miller and Pyun $ -- $ -- $ -- 20 $ --
PDL Investments $ -- $ -- $ -- 20 $ --
Professional Exchange Accommodators $ -- $ -- $ -- 20 $ --
Seltel, Inc. $ 2,464.83 $ -- $ 2,464.83 20 $ 1,590.21
Showtime Newtworks, Inc. $ 18,669.90 $ 2,016.52 $ 20,686.42 20 $ 13,346.08
Travel by Dana, Inc. $ -- $ -- $ -- 20 $ --
Triad Consultants, Inc. $ 4,789.31 $ 210.00 $ 4,999.31 20 $ 3,225.36
Wenner Silvestain & Company, CPA $ -- $ -- $ -- 20 $ --
Licenses, Drop Boxes & Parking:
ICG Access Services $ 500.00 $ -- $ 500.00 20 $ 322.58
MCI Metro $ 400.00 $ -- $ 400.00 20 $ 258.06
Winstar Wireless $ 95.00 $ 95.00 20 $ 61.29
Teleport Comm. $ -- $ -- $ -- 20 $ --
Airborne Express (11/11/98-11/10/99) $ 200.00 $ -- $ 200.00 122 $ 66.85
United Parcel Service, Inc. (12/1/98-11/30/99) $ 200.00 $ -- $ 200.00 142 $ 77.81
Patterson and Nuss $ -- $ 140.00 $ 140.00 20 $ 90.32
Antec Storage $ 194.05 $ -- $ 194.05 20 $ 125.19
-------------------------------------------------- -----------
Total 135,397.90 13,230.49 148,628.39 $ 95,775.88
================================================== ===========
</TABLE>
(1) Any receipts to the Lockbox account which are the property of Purchaser
shall be promptly remitted to Purchaser from Seller upon receipt.
================================================================================
<PAGE>
Schedule C
<TABLE>
<CAPTION>
[C] DEPOSITS:
---------
Total
-----------
<S> <C>
Access Data Consulting, Inc. $ 16,102.16
Avatech Solutions of Colorado, Inc. $ 15,100.00
William M. Banta $ 1,327.30
Born Information Services Group, Inc. $ 11,243.33
Brokers West Real Estate Marketing and Development, Inc. (1) $ 4,446.67
Cambior U.S.A., Inc. $ 4,088.60
Colorado Land Source, Ltd. $ 1,485.42
COREStaff, Inc. $ 1,979.17
DDD Energy, Inc. $ 9,957.12
Drake Beam Morin, Inc. $ 6,063.13
Guarantee Life Insurance Company $ 3,407.25
Harris, Hustad, Orrino & Associates, Inc., dba Career Creators $ 4,380.00
Health Care of Colorado $ 6,366.00
Integrated Partnerships $ 3,520.42
Miller and Pyun $ 2,220.00
PDL Investments $ 959.38
Professional Exchange Accommodators $ 3,656.00
Seltel, Inc. $ 1,853.98
Travel by Dana, Inc. $ 6,939.80
Triad Consultants, Inc. $ 4,789.31
Wenner Silvestain & Company, CPA $ 5,443.75
-----------
$115,328.79
===========
</TABLE>
- ---------------------
(1) In addition to cash deposit tenant has a Letter of Credit in the amount of
$0 as of 6/1/199
================================================================================
Schedule D
<TABLE>
<CAPTION>
SERVICE CONTRACTS:
------------------
[D] PAID BY SELLER: Payment Begin # days Credit
--------------- ------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
Michael L. Covillo 344.33 07/01/99 07/31/99 20 222.15
Plantek 724.13 07/01/99 07/31/99 20 467.18
Western Building Services 75.00 07/01/99 07/31/99 20 48.39
Security Link from Ameritech 122.22 07/01/99 08/31/99 51 100.54
Summit Waste 330.75 07/01/99 07/31/99 20 213.39
City of Greenwood (elev. inspect.) 500.00 08/01/98 07/31/99 20 27.40
City of Greenwood (elev. inspect.) 500.00 08/01/99 07/31/00 366 500.00
Otis Elevator Company 2,654.89 07/01/99 07/31/99 20 1,712.83
Goldsmith Gulch Sanitation 1,920.00 01/01/99 07/31/99 20 181.13
--------- -----------
Total Credits to Seller 7,171.32 3,473.01
-----------
PAID BY PURCHASER:
------------------
Abash Exterminating, Inc. 41.00 07/01/99 07/31/99 11 14.55
Anova, Inc. 10,256.21 07/01/99 07/31/99 11 3,639.30
--------- -----------
Total Credits to Purchaser 10,297.21 $3,653.85
-----------
-----------
NET CREDIT TO PURCHASER 180.84
===========
</TABLE>
================================================================================
<PAGE>
Schedule E
[E] LEASING COMMISSIONS/TENANT IMPROVEMENTS:
----------------------------------------
<TABLE>
<CAPTION>
Amount Due Amount Due
Tenant to Purchaser to Seller
- ----------------- --------------------------------------------------------
<S> <C> <C> <C>
Federal Express (10th Floor Renewal) 123,957.00
Avatech 111,236.00
--------------------------------------------------------
235,193.00
Total Amount Due Purchaser $ 235,193.00
============
</TABLE>
- --------------------
Note: Invoices have been received for Seltel, Inc., Miller and Pyun,
Professional Exchange Accommodators, LLC and Integrated Professionals and
will be paid by seller. Purchaser to pay costs associated with Federal
Express 4th Amendment.
================================================================================
Schedule F
[F] PREPAID RENT
------------
<TABLE>
<CAPTION>
Tenant Prepaid Rent
---------------------------------------------------------------------
<S> <C>
Countrywide Home Loans 3,176.81
Showtime Networks, Inc. 3,449.42
Kellogg Sales Company 3,062.02
---------------
Total Due Purchaser $ 9,688.25
===============
</TABLE>
================================================================================
<PAGE>
================================================================================
Schedule A
[A] REAL ESTATE TAXES:
------------------
-----------------------------------------------------------------------
<TABLE>
<CAPTION>
Estimated Real Estate Taxes for Calendar Year-1/1/99-12/31/99
-------------------------------------------------------------
(based on 1998 tax bills)
-------------------------
<S> <C> <C>
Parcel Number
-------------
2656-13-0-6-9001 (Personal Property valued at $7,256) 228.08
2075-16-1-07-007 529,080.90
-----------
Total Estimated CY1999 Real Estate Taxes paid by Purchaser $529,308.98
-----------
Seller's portion of CY1999 Estimated Real Estate Taxes:
1/1/99-7/11/99 192 days 0.526027
-----------
Seller's pro-rata share of CY1999 Real Estate Taxes $278,431.03
-----------
CREDIT DUE PURCHASER FOR SELLER'S SHARE OF CY1999 REAL ESTATE TAXES $278,431.03
-----------
-----------
TOTAL CREDIT DUE PURCHASER FOR TAXES $278,431.03
===========
</TABLE>
================================================================================
<PAGE>
PRENTICE PLAZA
ENGLEWOOD, COLORADO
REAL ESTATE SALE AGREEMENT
--------------------------
THIS REAL ESTATE SALE AGREEMENT (this "Agreement") is made as of the ____
day of March, 1999, by and between FIRST CAPITAL PRENTICE AVENUE ASSOCIATES, an
Illinois joint venture ("Seller"), and INVESCO REALTY ADVISORS, INC., a Delaware
corporation ("Purchaser").
RECITALS
--------
A. Seller is the owner of that certain parcel of real estate (the "Real
Property") located in Englewood, Colorado, which Real Property is more
particularly described in EXHIBIT A attached hereto and made a part hereof, and
upon which is situated an office building commonly known as Prentice Plaza (the
"Office Building").
B. Seller desires to sell to Purchaser, and Purchaser desires to purchase from
Seller, the Property (as such term is defined in Section 1 below), in accordance
with and subject to the terms and conditions set forth in this Agreement.
THEREFORE, in consideration of the above Recitals, the mutual covenants
and agreements herein set forth and the benefits to be derived therefrom, and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, Purchaser and Seller agree as follows:
1. PURCHASE AND SALE
-----------------
Subject to and in accordance with the terms and conditions set forth in
this Agreement, Purchaser shall purchase from Seller and Seller shall sell to
Purchaser the Real Property, together with: (a) the Office Building and all
other improvements located thereon that are owned by Seller and any and all of
Seller's rights, easements, licenses and privileges presently thereon or
appertaining thereto; (b) Seller's right, title and interest in and to the
leases affecting the Property or any part thereof (individually, a "Lease", and
collectively, the "Leases") as disclosed by the Rent Roll or otherwise entered
into pursuant to this Agreement; (c) the interest of Seller in all security
deposits paid by tenants under the Leases that are listed on the rent roll
attached hereto as EXHIBIT N and which are not applied by Seller in accordance
with the terms of the Leases and/or applicable law between the date of this
Agreement and Closing (the "Security Deposits"); (d) all of Seller's right,
title and interest in and to the furniture, furnishings, fixtures, equipment,
maintenance vehicles, tools and other tangible personalty located on the
Property and used in connection therewith that are listed on EXHIBIT K attached
hereto (the "Tangible Personal Property"); (e) all right, title and interest of
Seller under any and all of the maintenance, service, leasing, brokerage,
advertising and other like contracts and agreements with respect to the
ownership and operation of the Property that are listed on EXHIBIT C attached
hereto (the "Service Contracts"); (f) if and to the extent transferable, all of
Seller's interest, if any, in and to all warranties and guaranties relating to
the Property, if any; (g) if and to the extent transferable, all of Seller's
interest, if any, in and to all plans, specifications and floor plans for the
Office Building in Seller's possession or otherwise located at the Office
Building, if any; (h) all claims and causes of action relating to warranties,
guaranties, Leases, Service Contracts and other documents or agreements assigned
to Purchaser pursuant to this Agreement (other than claims for delinquent rents
and other tenant
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<PAGE>
obligations for which Seller has received no credit pursuant to Section 4(C)(i)
and any amounts that may be due Seller from vendors under the Service Contracts
for any period before the Closing for which Seller has not received a credit at
Closing); (i) all computers, software, databases, programs, archive media,
backup media, electronic data, documentation, manuals and codes used by Seller
or Seller's property manager at the Property in connection with life safety or
energy management systems; and (j) if and to the extent transferable, all of
Seller's right, title and interest in and to any existing intangible property
pertaining to the Property (the "Intangible Personal Property"), including the
name "Prentice Plaza", but specifically excluding any intangible property
pertaining in any way to the rights associated with the name "Equity Office" or
the name of any entity containing the words "Equity Office" as a part thereof;
all to the extent applicable to the period from and after the Closing (as such
term is defined in Section 4(A) below). The Real Property, together with items
(a) through (j) above, shall be collectively referred to in this Agreement as
the "Property". The term "Property" expressly excludes: (i) all property owned
by tenants or other users or occupants of the Property (except to the extent
that any Security Deposits are deemed to be "owned" by a tenant under applicable
law); (ii) all rights with respect to any refund of taxes applicable to any
period prior to the Closing Date (as defined in Section 4(A) below); and (iii)
all computers and computer-related equipment located at the Property (not
including any life safety or energy management systems).
2. PURCHASE PRICE
--------------
The purchase price to be paid by Purchaser to Seller for the Property is
Twenty Two Million Six Hundred Fifty Thousand Dollars ($22,650,000.00) (the
"Purchase Price"). The Purchase Price shall be paid as follows:
A. Earnest Money.
-------------
(i) Prior to the date of this Agreement, Purchaser and Seller entered
into that certain letter of intent (the "Letter of Intent") dated February
5, 1999, accepted by Purchaser on February 8, 1999 and accepted by Seller
on February 8, 1999. Unless Purchaser terminates this Agreement on or
before the end of the Inspection Period in accordance with and as provided
in Section 8(A) below, Purchaser shall deposit earnest money in the amount
of Two Hundred Fifty Thousand Dollars ($250,000.00) (together with any
interest accrued thereon, net of investment costs, if any, the "Earnest
Money") with Chicago Title Insurance Company in Chicago, Illinois (the
"Escrowee") within two (2) business days after the expiration of the
Inspection Period (defined hereafter). To direct the Escrowee as to the
retention, investment and disbursement of the Earnest Money (as defined
below in this Section 2(A)(i)), Purchaser, Seller and Escrowee entered into
that certain joint order escrow agreement (as amended, the "Joint Order
Escrow Agreement"), a copy of which is attached hereto as EXHIBIT D. The
Earnest Money shall be invested as Purchaser so directs pursuant to the
terms and provisions of the Joint Order Escrow Agreement. Any and all
interest earned on the Earnest Money shall be reported to Purchaser's
federal tax identification number and shall be credited against the
Purchase Price at Closing.
(ii) If the transaction closes in accordance with the terms of this
Agreement, at Closing, the Earnest Money shall be delivered by Escrowee to
Seller as part payment of the Purchase Price. If the transaction fails to
close due to a default on the part of Purchaser and Seller is not otherwise
in material default hereunder, the Earnest Money shall be delivered by
Escrowee to Seller, as liquidated and agreed upon damages as more
particularly provided in Section 7(B) below. If the transaction fails to
close due to a default on the part of Seller and Purchaser is not otherwise
in material default hereunder, Purchaser shall have the remedies
2
<PAGE>
provided for in Section 7(A) below and, in the event that Purchaser elects
or is deemed to have elected option (x) in Section 7(A) below, the Earnest
Money shall be delivered by Escrowee to Purchaser.
B. Cash at Closing. At Closing, Purchaser shall pay to Seller through
Escrowee, by wire transferred current federal funds, an amount equal to the
Purchase Price, minus the sum of the Earnest Money which Seller receives at
Closing from the Escrowee, and plus or minus, as the case may require, the
closing prorations and adjustments to be made pursuant to Section 4(C)
below .
3. EVIDENCE OF TITLE
-----------------
A. Title Commitment. Seller, at its cost, has obtained and caused to be
delivered to Purchaser a commitment for an ALTA Owner's Extended Coverage
("Extended Coverage" meaning the deletion of the standard printed
exceptions 1-5 and modification of the exception for taxes to cover the
year of closing and subsequent years only) Title Insurance Policy (the
"Title Commitment"), effective within thirty (30) days prior to the date of
this Agreement, in the amount of the Purchase Price, issued by the Chicago,
Illinois National Sales Unit of Chicago Title Insurance Company (the "Title
Insurer"), together with copies of all underlying documents set forth
therein (the "Title Documents"). At Closing, the conveyance of the Property
to Purchaser shall be subject only to those exceptions to title which are
more fully described on attached EXHIBIT B and those exceptions to title
which become Permitted Exceptions pursuant to Section 3(C) below
(collectively, the "Permitted Exceptions").
B. Survey. Seller shall, at its cost, within fifteen (15) days after the
date of this Agreement, obtain and cause to be delivered to Purchaser,
Seller and the Title Insurer, an updated ALTA survey of the Real Property
(the "Survey") prepared by Transystems Corporation (formerly Boyd, Brown,
Stude & Cambern) and dated a date not more than thirty (30) days prior to
the date of this Agreement. The Survey shall be certified to Purchaser (and
any assignee of Purchaser hereunder, provided Purchaser gives Seller
written notice of such assignee at least five (5) days before Closing),
Seller and Title Insurer. Such certification shall state that the Survey
was prepared in accordance with "Minimum Standard Detail Requirements for
ALTA/ACSM Land Title Survey" jointly established and adopted by ALTA/ACSM
in 1997 and pursuant to the Accuracy Standards (as adopted by ALTA and ACSM
and in effect on the date of such certification) of an "Urban Survey" and
shall include Table A Items 1-4, 6, 7(a), 7(c), 8, 10, 11 and the number of
parking spaces and otherwise contain the survey requirements and be
certified by the surveyor as provided in attached EXHIBIT U.
C. Review of Title Commitment and Survey. If the Title Commitment or
Survey disclose exceptions to title other than the Existing Permitted
Exceptions (as hereinafter defined) (such exceptions to title being
referred to herein as the "Disclosed Exceptions"), then Purchaser shall
have until 4:00 p.m. (Denver, Colorado time) on the seventh (7th) business
day after the date of Purchaser's receipt of the last of the Title
Commitment, the underlying title exception documents and Survey within
which to notify Seller in writing of any such Disclosed Exceptions to which
Purchaser objects. If any additional exceptions to title arise between the
date of the Title Commitment, the Survey and the Closing (such exceptions
to title being referred to herein as the "New Disclosed Exceptions"),
Purchaser shall have five (5) business days after its receipt of notice of
such New Disclosed Exceptions within which to notify Seller in writing of
any such New Disclosed Exceptions to which Purchaser objects; provided, if
such New Disclosed
3
<PAGE>
Exceptions (other than Liens, as hereafter defined) arise within five (5)
business days of Closing, Closing shall be extended by five (5) business
days. Any such Disclosed Exceptions and New Disclosed Exceptions not
objected to by Purchaser (except for Liens, as hereafter defined) in
writing as aforesaid shall become "Permitted Exceptions" hereunder. If
Purchaser objects to any such Disclosed Exceptions or New Disclosed
Exceptions, Seller shall notify Purchaser in writing within five (5)
business days after receiving written notice of Purchaser's objections
whether Seller intends to cure such objections. If Seller fails to provide
such written notice within the five (5) business day period, Seller shall
be deemed to have elected not to cure Purchaser's objections to title.
Notwithstanding the foregoing, Seller will have until Closing (but in any
event at least five (5) days after it receives written notice of
Purchaser's objection(s)) to remove such Disclosed Exceptions and/or New
Disclosed Exceptions, which removal may be accomplished by waiver or, with
Purchaser's reasonable approval, endorsement by the Title Insurer. If
Seller (i) fails to, (ii) notifies Purchaser in writing that it is has
elected not to, or (iii) is deemed to have elected not to remove any such
Disclosed Exceptions and/or New Disclosed Exceptions as aforesaid,
Purchaser may, as its sole and exclusive remedy, terminate this Agreement
and obtain a return of the Earnest Money. If Purchaser does not elect to
terminate this Agreement, Purchaser shall consummate the Closing and accept
title to the Property subject to all such Disclosed Exceptions and/or New
Disclosed Exceptions which have not been removed (in which event, all such
Disclosed Exceptions and New Disclosed Exceptions, together with the
Existing Permitted Exceptions, shall be deemed "Permitted Exceptions"
hereunder). Notwithstanding anything to the contrary in this Section 3,
Seller shall be obligated to remove from title to the Property at Closing,
without any extension of the Closing, the following (collectively, the
"Liens"): (i) any deeds of trust or mortgages granted by Seller, and (ii)
any other liens of a definite or ascertainable amount for work contracted
for by or on behalf of Seller, provided Seller has no reasonable dispute
with respect to the amount due or the work performed. If there is a dispute
with respect to the amount due or the work performed for such Lien, Seller
shall have the ability to extend Closing for ten (10) days in order to
resolve said dispute. If Seller fails to remove the Lien within such ten
(10) day period, Purchaser may, as its sole and exclusive remedy, terminate
this Agreement and obtain a return of the Earnest Money. If Purchaser does
not terminate the Agreement despite Seller's failure to remove said Lien,
Purchaser shall consummate the Closing and accept title to the Property
subject to such Lien. Purchaser agrees that Seller may use the proceeds of
the Purchase Price for the purpose of removing Liens from the Property at
Closing. Furthermore, the Liens shall not constitute Permitted Exceptions
regardless of whether they are Disclosed Exceptions or New Disclosed
Exceptions or objected to by Purchaser, and Purchaser shall have no
obligation to object to the Liens under Section 3(C).
4. CLOSING
-------
A. Closing Date. The "Closing" of the transaction contemplated by this
Agreement (that is, the payment of the Purchase Price, the transfer of
title to the Property, and the satisfaction of all other terms and
conditions of this Agreement) shall occur thirty (30) days after the
expiration of the Inspection Period, on or before 1:00 p.m. (Denver,
Colorado time) at the office of the Escrowee (in person and/or by telecopy
and/or overnight courier) or at such other time and place as Seller and
Purchaser shall agree in writing; provided, however, that if Purchaser
provides the funds on the Closing Date after 1:00 p.m. (Denver, Colorado
time), the Closing shall occur on the following business day. The "Closing
Date" shall be the date of Closing. If the date for
4
<PAGE>
Closing above provided for falls on a Saturday, Sunday or legal holiday,
then the Closing Date shall be the next business day.
B. Closing Documents and Deliveries.
--------------------------------
(i) Seller. At Closing, Seller shall deliver to Purchaser the
following:
(a) a special warranty deed (the "Deed"), subject only to the
Permitted Exceptions and in the form attached hereto as EXHIBIT T;
(b) a bill of sale (the "Bill of Sale") in the form attached
hereto as EXHIBIT J;
---------
(c) a letter advising each tenant under the Leases of the change
in ownership of the Property in the form of EXHIBIT L attached hereto;
(d) a letter advising each vendor under the Service Contracts of
the change in ownership of the Property in the form of EXHIBIT M
attached hereto;
(e) four (4) counterparts of an assignment and assumption of the
Leases and Security Deposits in the form of EXHIBIT E attached hereto
(the "Lease Assignment"), executed by Seller;
(f) four (4) counterparts of an assignment and assumption of the
Service Contracts in the form of EXHIBIT F attached hereto (the
"Service Contract Assignment"), executed by Seller;
(g) an affidavit stating, under penalty of perjury, Seller's
U.S. taxpayer identification number and that Seller is not a foreign
person within the meaning of Section 1445 of the Internal Revenue
Code;
(h) four (4) counterparts of a closing statement (the "Closing
Statement") to be executed by Seller and Purchaser, containing the
Closing Delinquency Schedule (as defined in Section 4(C)(i)(b) below)
and setting forth the prorations and adjustments to the Purchase Price
as required by Section 4(C) below, executed by Seller;
(i) all executed Estoppel Certificates (as defined in Section
8(B)(i) below) received by Seller as of the Closing Date to the extent
not previously delivered to Purchaser or its counsel;
(j) an owner's affidavit reasonably required by the Title
Insurer in order to cause it to issue the title policy or a commitment
to deliver such title policy, as described in Section 8(D) below;
provided, however, that Seller shall not be obligated to indemnify
Title Insurer for any Liens about which Seller has a dispute regarding
the amount due or work performed or for any tenant improvement work
under contracts that Purchaser assumes at Closing pursuant to Section
10(T);
(k) four (4) counterparts of a Quit Claim Assignment of General
Intangibles (the "General Intangibles Assignment") in the form of
EXHIBIT R attached hereto;
5
<PAGE>
(l) any transfer tax declaration, real property conveyance
statement or similar document (the "Transfer Tax Declaration") that
Seller is required to execute by law in order to record the Deed with
Arapahoe County, Colorado recorder, executed by Seller; and
(m) partial lien waivers for those construction contracts to be
assumed by Purchaser at Closing pursuant to Section 10(T).
(ii) Purchaser. Purchaser shall deliver or cause to be delivered to
Seller through Escrowee at Closing:
(a) the funds required pursuant to Section 2(B) above;
(b) four (4) counterparts of the Lease Assignment, executed by
Purchaser;
(c) four (4) counterparts of the Service Contract Assignment,
executed by Purchaser;
(d) four (4) counterparts of the Closing Statement, executed by
Purchaser;
(e) copies of any executed Estoppel Certificates received by
Purchaser as of the Closing Date, if any;
(f) four (4) counterparts of the General Intangibles Assignment,
executed by Purchaser;
(g) the Transfer Tax Declaration, executed by Purchaser; and
(h) copies of any environmental reports for the Property
prepared by or on behalf of Purchaser, provided that such reports
shall be delivered to Seller without representation or warranty of any
kind.
C. Closing Prorations and Adjustments.
----------------------------------
(i) The following items are to be prorated or adjusted (as
appropriate) as of the Closing Date, it being understood that for purposes
of prorations and adjustments, Purchaser shall be deemed the owner of the
Property as of 12:00 a.m. on the Closing Date and Seller shall be deemed
the owner of the Property as of 11:59 p.m. on the day prior to the Closing
Date; provided, however, that in the event that Seller and Seller's
mortgage lender receive the net funds from the Escrowee after 1 PM (Denver,
Colorado time) on the Closing Date, then the Closing Date shall be deemed
to be the following business day and all prorations and adjustments shall
be recalculated with the Purchaser deemed the owner of the Property as of
the new Closing Date and Seller deemed the owner of the Property as of the
day before the new Closing Date:
(a) Real estate and personal property taxes and assessments
(initially on the basis of the tax bill applying to the period through
Closing, or if such tax bill is not available, on the basis of the
most recent ascertainable tax bill). Notwithstanding any
6
<PAGE>
local custom regarding the proration of taxes and assessments, taxes
and assessments shall be deemed to apply to the fiscal year(s)
described on the most recent tax bill, regardless of when such taxes
and assessments are due and payable;
(b) Base rent ("Base Rent") and any other amounts (including
without limitation charges for operating expenses) due under the
Leases paid for the billing period in progress on the Closing Date.
"Receivables," as used in this Agreement, means all rental payments,
expense reimbursements and other monetary obligations of any kind due
and owing or to become due and owing by tenants to Seller with respect
to any period prior to the Closing Date under the Leases. At Closing,
the Closing Statement shall contain a schedule (the "Closing
Delinquency Schedule") of all uncollected Receivables. Purchaser shall
undertake reasonable efforts on behalf of Seller to collect all
Receivables for a period of four (4) months from the Closing Date
(which shall include the submission of monthly invoices and follow-up
invoices), it being agreed that any monies received by Purchaser from
and after the Closing Date from any person liable for any portion of
the Receivables (including, without limitation, payments by tenants
for operating expenses in excess of their estimated payments) shall be
applied as follows: first to any current sums and arrearages owed to
Purchaser (relating to billing periods after the billing period in
progress as of the Closing Date), second to the payment of monies owed
to Seller and Purchaser for the billing period in progress on the
Closing Date, and last to the balance of the Receivables. All monies
received by Purchaser which are to be applied pursuant to the
preceding sentence shall be held in trust by Purchaser for the benefit
of the party entitled thereto and remitted to such party promptly
after receipt in accordance with the preceding sentence.
Notwithstanding the foregoing, Seller shall retain the sole right to
collect (in such manner as it shall deem appropriate) Receivables due
from tenants who have vacated the Property prior to the Closing Date,
and Purchaser shall not be required to undertake any collection
efforts with respect to those Receivables. If, within four (4) months
following the Closing Date, any of the Receivables to be collected by
Purchaser have not been collected and paid to Seller, then Seller may
undertake its own efforts to collect those Receivables, including the
commencement of litigation and other proceedings (but Seller shall not
seek to evict any tenant or terminate any Lease), and all sums
collected by Seller as a result of such litigation (after payment of
all costs and expenses) shall be applied in full satisfaction of the
applicable Receivables. Purchaser and Seller shall reasonably
cooperate with each other in the collection of Receivables and shall
execute any documents reasonably requested by the other to collect
those Receivables.
(c) with respect to tenant improvement costs and/or allowances
or leasing commissions relating to (1) any new leases, or any
modification, amendment, restatement or renewal of existing Leases
(each, a "New Lease", and collectively, the "New Leases") executed in
accordance with the provisions contained in Section 10(L) below
between the date of this Agreement and prior to the expiration of the
Inspection Period, and (2) New Leases executed during the period
between the expiration of the Inspection Period and Closing with the
consent of Purchaser granted (or deemed to be granted) in accordance
with Section 10(L) below, Seller and Purchaser agree that such tenant
improvement costs, allowances and leasing commissions shall be
prorated over the initial term of any such New Lease with Seller being
responsible for a portion of such tenant improvement costs, allowances
and leasing commissions based on the ratio of Base Rent payments
payable to Seller through 11:59 PM of the day before the Closing
7
<PAGE>
Date to the total Base Rent payable over the initial term of the
particular New Lease and, in the event that Seller has paid such
tenant improvement costs, allowances and/or leasing commissions prior
to Closing, Purchaser shall reimburse Seller at Closing for the amount
of any such tenant improvement costs, allowances and/or leasing
commissions paid by Seller, based on the above-described proration.
Seller and Purchaser agree that (i) Seller shall be responsible for
all tenant improvement costs and/or allowances or leasing commissions
set forth on EXHIBIT S attached hereto, (ii) in the event that any
amounts due under EXHIBIT S are unpaid as of Closing, Seller shall
credit Purchaser at Closing for any such unpaid amounts, and (iii)
Purchaser shall be responsible for paying all tenant improvement
costs, allowances and/or leasing commissions for which it receives a
credit at Closing up to the amount of the credit.
(d) the amount of the Security Deposits held by Seller as of the
Closing Date, if any, with Purchaser receiving a credit at Closing
against the Purchase Price in the amount of such Security Deposits
plus interest earned thereon, if such interest must be paid to tenants
under the Leases or applicable law (and Seller shall transfer to
Purchaser at Closing, to the extent transferable, any Security Deposit
held by Seller as of the Closing Date in the form of a letter of
credit);
(e) water, sewer, electric, telephone and all other utility and
fuel charges, fees and use charges, fuel on hand (at cost plus sales
tax), and any deposits with utility companies (to the extent possible,
utility prorations will be handled by meter readings on the day
immediately preceding the Closing Date);
(f) amounts paid or payable under the Service Contracts;
(g) assignable license and permit fees; and
(i) other similar items and expenses of operation.
(ii) Notwithstanding the foregoing, and subject to Sections 4(C)(iii),
Seller shall in all events be entitled to retain amounts paid by tenants
for reimbursement of real estate taxes and assessments, common area
maintenance, mall maintenance, utility charges, water and sewer charges,
insurance and merchant's association dues and assessments and all other
charges to or contributions by tenants under the Leases other than Base
Rent (such assessments, costs, expenses, dues and charges being referred to
herein as the "Tenant Reimbursable Expenses", and the amounts payable by
tenants under the Leases with respect to the Tenant Reimbursable Expenses
being referred to herein as the "Tenant Reimbursements") as of the Closing.
(iii) As soon as practical after Closing, but in no event later than
sixty (60) days after Closing (except for real estate and personal property
taxes and assessments and Tenant Reimbursable Expenses, which shall be
reprorated not later than April 30, 2000), Seller and Purchaser shall, with
respect to any such amounts prorated or adjusted at Closing pursuant to
Section 4(C)(i) above based on estimates or formulae, as applicable,
jointly determine and reapportion such amounts in accordance with Section
4(C)(i) above upon determination of the actual costs or expenses with
respect thereto. In the event that the amount credited to Purchaser by
Seller at Closing exceeds the amount of the credit that Purchaser should
have received had such actual amounts been available at Closing, Purchaser
shall promptly remit such excess amount to Seller. Purchaser shall be
responsible for the reconciliation with tenants of Tenant
8
<PAGE>
Reimbursements and Tenant Reimbursable Expenses for the calendar year 1999.
In the event that the amount credited to Seller by Purchaser at Closing
exceeds the amount of the credit that Seller should have received at
Closing had such actual amounts been available at Closing, Seller shall
promptly remit such excess amount to Purchaser. In the event that, after
such reapportionment: (1) the amount of Tenant Reimbursements retained by
Seller as provided in Section 4(C)(ii) above is less than the amount of
Tenant Reimburseable Expenses paid by Seller (whether by direct payment by
Seller or by proration as provided in Section 4(C)(i) above) with respect
to 1999 and the landlord under the Leases is entitled to recover such
difference under the terms of Leases, then Purchaser shall bill such
tenants, provide Seller with copies of such bills upon issuance, and
collect such amounts on behalf of Seller and, upon receipt, remit such
collected amounts to Seller; and (2) the amount of Tenant Reimbursements
collected by Seller for 1999 and retained by Seller as provided in Section
4(C)(ii) above exceeds the amount of Tenant Reimburseable Expenses paid by
Seller (whether by direct payment by Seller or by proration as provided in
Section 4(C)(i) above) with respect to 1999 then Seller shall promptly
remit such excess amounts to the Purchaser; provided, that to the extent
any such excess amounts are otherwise payable to a tenant owing
Receivables, Seller may offset the amount otherwise payable to Purchaser
for such tenant against Receivables owing to Seller by such tenant,
remitting any remaining amount to Purchaser. Purchaser shall be obligated
to promptly remit all amounts received from Seller to the particular
tenants in question (and Purchaser shall indemnify, defend and hold Seller,
its beneficiaries, their partners, and their respective directors,
officers, employees and agents, and each of them, harmless from and against
any losses, claims, damages and liabilities [including, without limitation,
reasonable attorneys' fees and expenses incurred in connection therewith]
arising out of or resulting from Purchaser's failure to remit such amounts
to the tenants in accordance with this Section 4(C)(iii).
(iv) Intentionally omitted.
(v) If Seller has not received all Receivables or other amounts owed
to it by tenants within four (4) months after the Closing Date or within
four (4) months after such other amounts may be due, Seller at its sole
cost and expense, shall be entitled at any time within the twelve (12)
month period after the applicable four (4) month period, to commence such
actions or proceedings not affecting possession or enforcing landlord's
liens or resulting in termination of the Lease in question as Seller shall
desire to collect any such Receivables or other amounts, and Purchaser
shall cooperate with Seller in any such action.
(vi) For purposes of this Section 4(C) and the Closing Statement, the
amount of any expense credited by one party to the other shall be deemed an
expense paid by that party. The terms and provisions of this Section 4(C)
shall survive the Closing and delivery of the Deed.
D. Transaction Costs. Purchaser shall be responsible for and shall pay
(i) the full cost of any endorsements to the Title Policy (defined
hereafter) requested by Purchaser and not obtained pursuant to Section
3(C), (ii) the transfer taxes and/or documentary stamps (the "Transfer
Taxes") owed in connection with the Deed (and Seller and Purchaser shall
timely execute and deliver such forms and returns as are necessary in
connection therewith), (iii) one-half of any Colorado sales tax due from
the sale of the Tangible Personal Property and (iv) its own "due diligence"
costs, including, without limitation, any fees and expenses of
environmental consultants, engineers and any other consultants. Seller
shall be responsible for and shall pay (1) the cost to prepare the Survey,
(2) one-half of any Colorado sales tax due from the sale of the Tangible
Personal Property and (3) the base premium for the owner's ALTA title
insurance
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policy with Extended Coverage to be issued to Purchaser at Closing (the
"Title Policy"). Seller and Purchaser shall each pay one-half (1/2) of all
escrow fees, whether or not Closing occurs, and one-half (1/2) of all
recording fees for all documents. In addition, Purchaser and Seller shall
each be responsible for the fees of their respective attorneys.
E. Possession. Upon Closing, Seller shall deliver to Purchaser possession
of the Property, subject only to the Permitted Exceptions.
5. CASUALTY LOSS AND CONDEMNATION
------------------------------
If, prior to Closing, the Property or any part thereof shall be taken by
eminent domain or condemned, or destroyed or damaged by fire or other casualty,
Seller shall promptly so notify Purchaser. In the event that either: (i) the
reasonable cost to restore the Property due to such damage or destruction is
greater than One Million Dollars ($1,000,000) (a "Material Casualty") (ii)
tenants occupying their space under the Leases totaling in excess of ten percent
(10%) of the aggregate rented square footage of the Office Building are entitled
to terminate their respective Leases on account of such damage, destruction or
taking and have not delivered to Purchaser a binding waiver of such rights on or
before the Closing Date, (iii) such damage, destruction or taking would, after
completion of the repair, result in a material violation of applicable laws
affecting the Property (including, without limitation, a violation of the number
of parking spaces required by applicable zoning, which is not remedied by
Closing or for which Seller cannot obtain a zoning variance), (iv) such damage,
destruction or taking would result in a permanent material impairment of
reasonable means of vehicular or pedestrian access to the Office Building, or
(v) any material portion of the Office Building is taken or condemned (a
"Material Condemnation"), then Purchaser shall have the option to terminate this
Agreement by delivery of its written termination notice to Seller within twenty
(20) days of Seller's written notice thereof. If (a) the aforementioned casualty
is not a Material Casualty, (b) the aforementioned taking or condemnation is not
a Material Condemnation, or (c) Purchaser does not elect to terminate this
Agreement pursuant to the provisions of the preceding sentence (time being of
the essence with respect to any such election), then Seller and Purchaser shall
consummate the transaction contemplated by this Agreement without abatement of
the Purchase Price and Purchaser shall be entitled during the period following
the Inspection Period and prior to Closing to approve the terms of any property
insurance settlement, such approval not to be unreasonably withheld or delayed,
and to receive at Closing the taking, condemnation or property insurance
proceeds (or an assignment of the right to such proceeds) (less any amounts
applied against costs incurred by Seller related to the restoration or repair of
the Property as a result of such occurrence) plus a credit against the Purchase
Price in the amount of any uninsured loss (as to property only) and any
deductible payable by Seller under applicable property insurance, and Seller
shall, at Closing, execute and deliver to Purchaser all customary proofs of
loss, assignments of claims and other similar items. Seller shall be entitled to
all rent loss insurance proceeds attributable to the period through the Closing
Date. If Purchaser elects to terminate this Agreement pursuant to the provisions
of this Section 5 and Purchaser is not in material default under this Agreement,
the Earnest Money shall be returned to Purchaser by the Escrowee, in which event
this Agreement shall, without further action of the parties, become null and
void and neither party shall have any further rights or obligations under this
Agreement except those rights and obligations which expressly survive
termination of this Agreement as provided herein and Seller's rights under the
Confidentiality Agreement (as defined in Section 8(A) below).
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6. BROKERAGE
---------
Seller, pursuant to a separate written agreement (the "Broker Agreement"),
is obligated to pay upon Closing (but not otherwise) a brokerage commission to
Cushman Realty Corporation ("Broker") for services rendered in connection with
the sale and purchase of the Property. Seller shall indemnify and hold Purchaser
harmless from and against any and all claims of Broker related to Seller's
agreement under the Broker Agreement to pay Broker a commission in connection
with the purchase and sale of the Property, including, without limitation,
reasonable attorneys' fees and expenses incurred by Purchaser in connection with
such claim. Purchaser represents and warrants to Seller that Purchaser does not
have any agreement with any broker or finder in connection with the Property.
Seller represents and warrants to Purchaser that Seller does not have any
agreement with any broker or finder in connection with the Property, other than
Broker pursuant to the Broker Agreement. Seller and Purchaser shall each
indemnify and hold the other harmless from and against any and all claims of all
brokers and finders (other than a claim by Broker against Seller of the type
described in the first sentence of this Section 6, which claim Seller shall be
obligated to indemnify Purchaser against as provided above) claiming by, through
or under the indemnifying party and in any way related to the sale and purchase
of the Property, this Agreement or otherwise, including, without limitation,
reasonable attorneys' fees and expenses incurred by the indemnified party in
connection with such claim. The provisions of this Section 6 shall survive the
Closing and delivery of the Deed or sooner termination of this Agreement.
7. DEFAULT AND REMEDIES
--------------------
A. Seller Default.
--------------
(i) Notwithstanding anything to the contrary contained in this
Agreement, if (1) Seller fails to perform in accordance with the terms of
this Agreement, (2) Purchaser is not otherwise in material default
hereunder, and (3) the Closing does not occur, then, as Purchaser's sole
and exclusive remedy hereunder and at Purchaser's option, either (x) the
Earnest Money shall be returned to Purchaser, in which event this Agreement
shall be null and void, and neither party shall have any rights or
obligations under this Agreement other than those rights that explicitly
survive a termination of this Agreement, or (y) provided an action is filed
within sixty (60) days after Purchaser becomes aware of such failure and
Purchaser gives written notice to Seller when such action is filed,
Purchaser may seek specific performance of this Agreement, but not damages.
Purchaser's failure to seek specific performance as aforesaid shall
constitute its election to proceed under clause (x) above.
(ii) In the event that (1) Seller has, prior to Closing, sold and
conveyed the Property in violation of this Agreement and this Agreement has
not theretofore been terminated in accordance with any provision of this
Agreement and, as a result of such sale and conveyance, it is not possible
that specific performance can occur, or (2) in the event of an intentional,
willful and bad faith material breach by Seller of the terms of this
Agreement, including without limitation (x) Seller amending or terminating
an existing Lease or entering into a New Lease demising additional space in
violation of Section 10(L), but not including storage space or parking
space leases at rates and terms similar to any existing storage and parking
space leases, and such action by Seller with respect to such Lease or New
Lease materially increases the obligations of Purchaser after Closing or
materially adversely affects the operation of the Property or the revenues
received therefrom, and such breach is not cured within ten (10) days after
written notice of such breach by Purchaser to Seller, and the Agreement has
not thereafter been terminated by Purchaser or by Seller in accordance with
any provision of this Agreement,
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and Purchaser is not otherwise in material default hereunder, (y) Seller
amending or terminating a Service Contract or entering into a new Service
Contract in violation of Section 10(U)(1), and such action by Seller with
respect to such Service Contract materially increases the obligations of
Purchaser after Closing or materially adversely affects the operation of
the Property or the revenues received therefrom, and such breach is not
cured within ten (10) days after written notice of such breach by Purchaser
to Seller, and the Agreement has not thereafter been terminated by
Purchaser or by Seller in accordance with any provision of this Agreement,
and Purchaser is not otherwise in material default hereunder, and (z)
Seller failing to deliver the Deed or any other material closing delivery
listed in Section 4(B)(i) as required under this Agreement, then Purchaser
shall be entitled to terminate this Agreement and pursue a claim against
Seller due to Seller's failure to perform in accordance with the terms of
this Agreement as result of such breach, such claim for damages to be for
reimbursement of an amount equal to the lesser of Purchaser's actual,
third-party, out-of-pocket expenses incurred in connection with its
proposed purchase of the Property as contemplated in this Agreement and
One Hundred Fifty Thousand Dollars ($150,000).
B. Purchaser Default. If (i) Purchaser materially fails to perform in
accordance with the terms of this Agreement, (ii) Seller is not in material
default hereunder, and (iii) the Closing does not occur, the Earnest Money
may be retained by Seller as liquidated and agreed upon damages and as
Seller's sole and exclusive remedy with respect thereto other than those
rights that survive a termination of this Agreement as provided herein and
Seller's rights under the Confidentiality Agreement. If Purchaser does not
deposit with the Escrowee the Earnest Money as provided for in Section
2(A)(i) above, the sum of $250,000 shall nonetheless be recoverable by
Seller from Purchaser as Earnest Money and without prejudice to Seller's
other rights and remedies. PURCHASER AND SELLER ACKNOWLEDGE AND AGREE THAT
(1) THE EARNEST MONEY IS A REASONABLE ESTIMATE OF AND BEARS A REASONABLE
RELATIONSHIP TO THE DAMAGES THAT WOULD BE SUFFERED AND COSTS INCURRED BY
SELLER AS A RESULT OF HAVING WITHDRAWN THE PROPERTY FROM SALE AND THE
FAILURE OF CLOSING TO OCCUR DUE TO A DEFAULT OF PURCHASER UNDER THIS
AGREEMENT; (2) THE ACTUAL DAMAGES SUFFERED AND COSTS INCURRED BY SELLER AS
A RESULT OF SUCH WITHDRAWAL AND FAILURE TO CLOSE DUE TO A DEFAULT OF
PURCHASER UNDER THIS AGREEMENT WOULD BE EXTREMELY DIFFICULT AND IMPRACTICAL
TO DETERMINE; (3) PURCHASER SEEKS TO LIMIT ITS LIABILITY UNDER THIS
AGREEMENT TO THE AMOUNT OF THE EARNEST MONEY IN THE EVENT THIS AGREEMENT IS
TERMINATED AND THE TRANSACTION CONTEMPLATED BY THIS AGREEMENT DOES NOT
CLOSE DUE TO A DEFAULT OF PURCHASER UNDER THIS AGREEMENT; AND (4) THE
EARNEST MONEY SHALL BE AND CONSTITUTE VALID LIQUIDATED DAMAGES.
PURCHASER INITIALS: SELLER INITIALS:
___________________ ________________
C. Post-Closing Remedies. After Closing, Seller and Purchaser shall,
subject to the terms and conditions of this Agreement (including, without
limitation, Section 10(P) below), have such
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rights and remedies as are available at law or in equity, except that
neither Seller nor Purchaser shall be entitled to recover from the
other consequential or special damages. The provisions of this Section
7 shall survive the Closing and delivery of the Deed or sooner
termination of this Agreement.
8. CONDITIONS PRECEDENT
--------------------
A. Inspection Period. Subject to Section 10(G) below and the
provisions of that certain confidentiality letter agreement dated July
20, 1998, as amended by that certain modification letter agreement
dated February 5, 1999 and accepted by Purchaser on February 8, 1999
(collectively, the "Confidentiality Agreement"), Purchaser and/or its
agents have had, and shall have, the period between February 9, 1999
and 4 PM (Chicago, Illinois time) on April 5, 1999, within which to
inspect the Property and conduct such tests, surveys and inspections
as Purchaser deems reasonably necessary or appropriate (the
"Inspection Period"); provided, however, Purchaser will not conduct
any invasive or intrusive test without first obtaining Seller's prior
written consent, which may be withheld in Seller's sole and absolute
discretion. Seller hereby agrees that Purchaser may conduct invasive
testing as described on EXHIBIT W. If Seller in its absolute
discretion withholds its consent to Purchaser's reasonable request to
conduct an invasive or intrusive test on the Property during the
Inspection Period, then the Earnest Money shall be returned to
Purchaser together with an amount equal to the lesser of (i)
Purchaser's actual, third-party, out-of-pocket expenses incurred in
connection with its proposed purchase of the Property as contemplated
in this Agreement, and (ii) $50,000, this Agreement shall be null and
void and neither party shall have any further rights or obligations
under this Agreement. If Purchaser determines that the Property is
unsuitable for its purposes for any reason and Purchaser gives Seller
written notice of such decision before the expiration of the
Inspection Period, then the Earnest Money shall be returned to
Purchaser, this Agreement shall be null and void and neither party
shall have any further rights or obligations under this Agreement.
Purchaser's failure to object in writing to Seller within the
Inspection Period shall be deemed a waiver by Purchaser of the
condition contained in this Section 8(A). In the event of such a
deemed waiver, Purchaser shall also be deemed to have acknowledged
that it had an opportunity to inspect the Property and all Disclosures
(as defined in Section 10(H) below) and make such other inquiries and
investigations and obtain such reports and analyses it deemed adequate
in connection with its decision to purchase the Property, and, as a
result thereof, Purchaser shall be deemed to have agreed that, except
as specifically set forth in this Agreement, it shall purchase the
Property in its "AS IS, WHERE IS" condition, subject to ordinary wear
and tear and as more particularly provided in Section 10(H) below.
B. Estoppel Certificates. (i) It shall be a condition precedent to
Purchaser's obligation to close the purchase and sale transaction
contemplated in this Agreement that Purchaser shall have received at
Closing estoppel certificates (individually, an "Estoppel Certificate"
and collectively, the "Estoppel Certificates") dated as of a date no
more than forty-five (45) days prior to Closing, from tenants
occupying not less than eighty percent (80%) of the net rentable
square footage of space at the Property actually leased as of the end
of the Inspection Period pursuant to valid and existing Leases (but
which shall include in any event Federal Express, Antec Corporation
and Showtime Networks) and in form and content as set forth herein
(collectively, the "Required Tenants"); provided, however, that in the
event that Seller has not received the Estoppel Certificates from the
Required Tenants at least three (3) business days before the scheduled
date for Closing, Seller or Purchaser may extend the scheduled date
for Closing up to three (3) business days by written notice to the
other party. The Estoppel
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Certificates executed by tenants shall be substantially in the form of
EXHIBIT G attached hereto (the "Form Tenant Estoppel Certificate"), except
that an Estoppel Certificate shall be deemed an acceptable Estoppel
Certificate for purposes of this Section 8(B)(i) if it is in a form
required by the applicable Tenant's Lease (the aforesaid acceptable
Estoppel Certificates to be delivered are collectively referred to as the
"Required Estoppel Certificates"). The fact that an Estoppel Certificate
contains either (1) the qualification by the tenant that (a) the second
sentence of item 3 of the Estoppel Certificate, (b) the second sentence of
item 4 of the Estoppel Certificate, or (c) the square footage of the leased
premises, is to the best of its knowledge or as being subject to any
similar qualification, or (2) any tenant objection to addressing or
certifying the Estoppel Certificate to Purchaser's mortgage lender, if any,
shall not render the Estoppel Certificate unacceptable. Seller shall use
reasonable efforts, but shall not be required to expend any sums, to obtain
an Estoppel Certificate dated as of a date no more than forty-five (45)
days prior to the Closing for all tenants under the Leases; provided,
however, that the foregoing limitation on the expenditure of funds by
Seller shall not limit Seller's other obligations under this Agreement.
Seller shall send Estoppel Certificates to Purchaser as they are received.
If Seller does not provide Purchaser with an Estoppel Certificate from a
tenant of the Property, at Closing, Seller shall provide Purchaser with a
copy of such tenant's Lease and all material amendments thereto, but not
including any correspondence other than work letters which are attached as
exhibits to the Lease, certified by Seller to be complete, true and
correct. Such certification shall be subject to the same limitations on
liability and survival set forth in Sections 9(C) and 9(E).
(ii) In the event that Seller is unable to provide to Purchaser the
Required Estoppel Certificates at Closing as provided above, Purchaser may
either: (x) elect not to purchase the Property, in which event this
Agreement shall be null and void, the Escrowee shall promptly return the
Earnest Money to Purchaser and thereafter neither Seller nor Purchaser
shall have any further rights or obligations under this Agreement, other
than those rights and obligations which expressly survive termination of
this Agreement and the rights and obligations under the Confidentiality
Agreement; or (y) elect to purchase the Property notwithstanding Seller's
inability to provide the Required Estoppel Certificates, in which event
Seller shall not be obligated to provide any additional Estoppel
Certificates to Purchaser after Closing. The provisions of this Section
8(B)(ii) shall survive the Closing and delivery of the Deed.
(iii) If any Estoppel Certificates contain statements or allegations
that a default or potential default exists on the part of Seller under the
Lease in question and (i) the existence or the substance of such
allegations or statements were contained in any Disclosures (as defined in
Section 10(H) below) prior to the end of the Inspection Period, or (ii)
prior to the end of the Inspection Period Purchaser otherwise obtained
actual knowledge of facts revealing the substance of such statements or
allegations, or (iii) Purchaser elects that Closing occur notwithstanding
the existence of such default of potential default, then such Estoppel
Certificates shall be deemed acceptable for purposes of this Section 8(B),
notwithstanding the existence of such allegations or statements and Seller
shall have no liability to Purchaser hereunder with respect to the
existence of such allegations, statements or information. The provisions
of this Section 8(B)(iii) shall survive the Closing and delivery of the
Deed.
C. Accuracy of Seller's Representations and Warranties. It shall be a
condition precedent to Purchaser's obligation to close the purchase and
sale transaction contemplated in this Agreement that each of Seller's
representations and warranties set forth in Section 9(A) below shall be
true and correct in all material respects as of Closing, as modified by any
Pre-Closing
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Disclosures (as defined in Section 9(B) below). In the event that Seller
makes any Pre-Closing Disclosures to Purchaser, Purchaser shall have the
right to terminate this Agreement and receive the return of the Earnest
Money by delivering written notice thereof to Seller on or before the
earlier of Closing or the fifth (5th) business day after Purchaser receives
written notice of such Pre-Closing Disclosure. If Purchaser does not
terminate this Agreement pursuant to its rights under this Section 8(C),
then such representations shall be deemed modified to conform them to the
Pre-Closing Disclosures. The provisions of this Section 8(C) shall survive
the Closing and delivery of the Deed or sooner termination of this
Agreement.
D. Title Policy. It shall be a condition precedent to Purchaser's
obligation to close the transactions contemplated by this Agreement that
Title Insurer deliver (a) an ALTA Owner's Extended Coverage Title Insurance
Policy for the Property (with the following endorsements, to the extent
available in the state in which the Property is located, attached thereto:
comprehensive endorsement, a form 3.1 zoning endorsement, an access
endorsement, a contiguity endorsement, an endorsement insuring the Property
is a separately assessed tax parcel, an address endorsement, a survey
endorsement and such other endorsements as Purchaser may reasonably
require; provided that prior to the expiration of the Inspection Period
Purchaser determines, and provides written evidence to Seller, that Title
Insurer commits to issue all of such endorsements at Closing), or (b) the
Title Insurer's irrevocable commitment to issue such policy of title
insurance, with liability equal to the Purchase Price showing fee title to
the Property vested in Purchaser and subject only to the Permitted
Exceptions.
E. Performance of Covenants. It shall be a condition precedent to
Purchaser's obligation to close the transactions contemplated by this
Agreement that Seller perform and comply in all material respects with all
of the terms of this Agreement to be performed and complied with by Seller
prior to or at the Closing.
F. Updated Rent Roll. It shall be a condition precedent to Purchaser's
obligation to close the transactions contemplated by this Agreement that
Seller has delivered to Purchaser, at least five (5) days prior to the
Closing Date, an updated Rent Roll in the form specified in Section 9(A)(v)
(the "Updated Rent Roll"), dated not earlier than fifteen (15) days prior
to the Closing Date, certified by Seller to be accurate and complete. Such
certification shall be subject to the same limitations on liability and
survival set forth in Sections 9(C) and 9(E).
G. Estoppel Letter from Denver Tech Center. It shall be a condition
precedent to Purchaser's obligation to close the transactions contemplated
by this Agreement that Seller provide Purchaser with a letter from the
Architectural Control Committee for the Denver Technological Center (the
"ACC"), in the form provided by the ACC, certifying that the Property is in
compliance with the covenants of the Denver Technological Center. Seller
shall use reasonable efforts to obtain such estoppel letter from the ACC
and shall pay ACC's standard fee for issuing such letter.
9. SELLER'S REPRESENTATIONS
------------------------
A. Representations. Seller represents and warrants to Purchaser that, as
of the date of this Agreement:
(i) Organization; Authority. Seller is a joint venture, duly
organized under the laws of the State of Illinois. Seller has the power and
authority under Seller's partnership agreement
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("Seller's Organizational Documents"), to sell, transfer, convey and
deliver the Property to be sold and purchased hereunder, and all action and
approvals required thereunder have been duly taken and obtained in order to
sell, transfer, convey and deliver the Property as aforesaid. To Seller's
Actual Knowledge, no other consents or approvals are required to permit
Seller to execute, deliver or perform the Agreement, other than consents
which have been obtained or will be obtained prior to Closing.
(ii) No Breach. The execution and delivery of this Agreement, the
consummation of the transactions contemplated herein and fulfillment of the
terms hereof will not result in a breach of any of the terms or provisions
of, or constitute a default under, any provision of Seller's Organizational
Documents.
(iii) Condemnation. Seller has not received from any governmental
authority any written notice of, and to the Actual Knowledge of Seller
there is not, any pending condemnation or taking by eminent domain of the
Property or any portion thereof.
(iv) Litigation. Except as set forth on EXHIBIT I attached hereto,
Seller has not been served with written notice of, and there is not, any
litigation, arbitration or other legal proceeding which is still pending
against Seller with respect to Seller's ownership or operation of the
Property or the Property itself nor is Seller otherwise a party to any
existing litigation, arbitration or other legal proceeding with respect to
the Property which will affect the Property after Closing.
(v) Rent Roll. Attached hereto as EXHIBIT N is a list (the "Rent
Roll") setting forth the following information as of the date of this
Agreement: (1) the name, to the Actual Knowledge of Seller, of each tenant
under each of the Leases as of the date of this Agreement, (2) the suite
number(s) occupied (or to be occupied, with respect to those tenants who
have not yet taken possession of the space demised under their Lease) by
each such tenant, (3) the monthly Base Rent and estimated operating expense
pass-throughs payable by each tenant with respect to the month of March,
1999, (4) to the Actual Knowledge of Seller, the approximate square footage
demised under the particular tenant's Lease, (5) the amount of all
unapplied Security Deposits held by Seller with respect to the Leases as of
the date hereof, (6) the expiration dates of the current Lease terms, (7)
the "base year" used to calculate Tenant Reimbursements payable by the
tenant, and (8) any outstanding tenant improvement allowances, moving
allowances or similar allowances due under the Leases.
(vi) Leases. Prior to the date hereof, Seller has delivered complete,
true and correct (to the Actual Knowledge of Seller) copies of the Leases
to Purchaser.
(vii) Service Contracts. To the Actual Knowledge of Seller, the list
attached hereto as EXHIBIT C lists all of the Service Contracts, the vendor
and/or payor under each Service Contract and a description of the service
provided thereunder. Prior to the date hereof, Seller has delivered
complete, true and correct (to the Actual Knowledge of Seller) copies of
the Service Contracts.
(viii) To the Actual Knowledge of Seller, Seller has not received any
written notices of any violation of any laws, ordinances or other
governmental regulations applicable to the Property, that have not been
heretofore cured.
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(ix) To the Actual Knowledge of Seller, there are no leases, tenancies
or other rights of occupancy or use for any portion for the Property other
than the Leases or Inspection Documents (as defined in the Letter of
Intent).
(x) To the Actual Knowledge of Seller, the Leases are in full force
and effect.
(xi) Seller is not a foreign person within the meaning of Section 1445
of the Internal Revenue Code.
(xii) To the Actual Knowledge of Seller, and without independent
inquiry, the operating statement for the Property delivered by Seller to
Purchaser as a part of the Inspection Documents materially reflect the
income and expenses of the Property for the time periods covered in said
operating statements.
(xiii) To the Actual Knowledge of Seller, Seller has received no
written notice of any pending improvement liens or assessments affecting
the Property from any governmental authority having jurisdiction over the
Property.
(xiv) Seller has not received any notice of termination or default by
Seller under the Leases, and to the Actual Knowledge of Seller, there is no
existing or uncured default, or any claim of default by either Seller or
the tenants under the Leases.
(xv) To the Actual Knowledge of Seller, Seller has delivered to
Purchaser copies of all environmental reports in Seller's possession
relating to the Property, which reports are listed on EXHIBIT P.
The term "Actual Knowledge of Seller" used in this Agreement or in any
certificate or other document delivered pursuant to this Agreement, shall
mean and be limited to the actual (and not imputed, implied or
constructive) current knowledge of the Designated Persons (defined below),
after Inquiry (defined below). The "Designated Persons" are Alissa
Helgesen, Vice President-Dispositions of Equity Office Properties Trust, a
Maryland real estate investment trust ("EOP") and Kim Koehn, Regional
Senior Vice President-West Region of EOP. "Inquiry" means that Seller has
delivered a copy of Section 9(A) of this Agreement to Jane Dunnebecke, the
off-site property manager, and Don Milne, the off-site engineer, and that
such individuals have confirmed that to their actual (and not imputed,
implied or constructive) current knowledge the representations and
warranties of Section 9(A) that are qualified as to the Actual Knowledge of
Seller are accurate. Notwithstanding anything herein to the contrary,
neither Alissa Helgesen, Kim Koehn, Jane Dunnebecke nor Don Milne shall
(whether prior to or after Closing) have any personal liability or
obligation whatsoever with respect to any matters set forth in this
Agreement or with respect to any of Seller's representations herein being
or becoming untrue, inaccurate or incomplete in any respect. Any knowledge
or notice given to any of Seller's other agents, servants, representatives
or employees shall not be imputed to Seller.
B. Representations Remade. Seller shall be deemed to remake and restate
the representations and warranties set forth in Section 9(A) except that
the representations and warranties shall be updated: (i) by Seller
delivering written notice to Purchaser to reflect any fact, matter or
circumstance which Seller's Chicago, Illinois representatives become aware
of that would make any of Seller's representations contained in Section
9(A) untrue or incorrect in any material respect, (ii) to reflect any
Disclosures prior to the Inspection Period, (iii) to reflect
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<PAGE>
any statements or allegations in Estoppel Certificates that a default or
potential default exists on the part of Seller under the respective Leases
in question not previously disclosed to Purchaser that would otherwise make
any of Seller's representations in Section 9(A) untrue in any material
respect, and (iv) to reflect Purchaser's actual knowledge, prior to the end
of the Inspection Period, of facts inconsistent with or different from the
representations (items (i) through (iv) being collectively referred to
herein as the "Pre-Closing Disclosures").
C. Survival. The representations of Seller set forth in Section 9(A) and
in any other documents or agreements executed in connection with
transactions contemplated in this Agreement, subject to modifications
thereto as provided in Section 9(B), shall survive the Closing and the
delivery of the Deed for a period of twelve (12) months from the Closing
Date. Notice of any claim as to a breach of any such representations must
be made to Seller prior to the expiration of such twelve (12) month period
or it shall be deemed a waiver of the right to assert such claim.
D. Defaults by tenants under Leases and vendors under Service Contracts.
Seller does not represent that any particular Service Contract will be in
force or effect as of the Closing or that tenants under Leases or the
parties to the Service Contracts will not be in default under their
respective Leases or Service Contracts, and neither the existence of any
default by any tenant under its Lease nor the default of any party under
any Service Contract shall affect the obligations of Purchaser hereunder;
provided, however, the foregoing shall not affect the conditions contained
in Section 8(B) above. The provisions of this Section 9(D) shall survive
the Closing and delivery of the Deed.
E. Estoppel Certificates supersede representations. In the event that an
Estoppel Certificate is received from a tenant (before or after Closing)
which confirms the accuracy of the representations made in Section 9(A) (as
modified as provided in Section 9(B)), then the representations in Section
9(A) (as modified as provided in Section 9(B)) shall be deemed to be
superseded by such Estoppel Certificate (and, in such event, Seller shall
no longer have any liability hereunder with respect to the portion of the
representation superseded). The provisions of this Section 9(E) shall
survive the Closing and delivery of the Deed.
10. MISCELLANEOUS
-------------
A. Entire Agreement. All understandings and agreements heretofore had
between Seller and Purchaser with respect to the Property (including
without limitation, those contained in the Letter of Intent, but excluding
the Confidentiality Agreement) are merged in this Agreement, which alone
fully and completely expresses the agreement of the parties. Purchaser
further acknowledges that, except as expressly provided in this Agreement,
neither Seller nor any agent or representative of Seller has made, and
Seller is not liable for or bound in any manner by, any express or implied
warranties, guaranties, promises, statements, inducements, representations
or information pertaining to the Property. The provisions of this Section
10(A) shall survive the Closing and delivery of the Deed.
B. No Assignment. Except for an assignment to a Permitted Assignee (as
hereinafter defined), neither this Agreement nor any interest hereunder
shall be assigned or transferred by Purchaser without the written consent
of Seller, which consent may be withheld in the sole and absolute
discretion of Seller. For purposes of this Agreement, the term "Permitted
Assignee" shall be defined to mean a partnership, corporation or limited
liability company owned or
18
<PAGE>
controlled by Purchaser or in which Purchaser or an affiliate is a member
or partner or one or more institutional investors for which Purchaser or
one of its affiliates is then acting as investment manager. Upon an
assignment to a Permitted Assignee such Permitted Assignee shall execute
and deliver an agreement to Seller in which such Permitted Assignee assumes
all of the obligations of Purchaser under this Agreement. Upon an
assignment of this Agreement to a Permitted Assignee, (1) Purchaser shall
remain responsible for all liabilities under this Agreement accruing on or
before the Closing Date for a period of one (1) year after the Closing
Date, and (2) the term "Purchaser" as used in this Agreement shall be
deemed to include such Permitted Assignee. Seller may not assign or
otherwise transfer its interest under this Agreement without the written
consent of Purchaser. Subject to the foregoing, this Agreement shall inure
to the benefit of and shall be binding upon Seller and Purchaser and their
respective successors and assigns. The provisions of this Section 10(B)
shall survive the Closing and delivery of the Deed or sooner termination of
this Agreement.
C. Amendments. This agreement shall not be modified or amended except in a
written document signed by Seller and Purchaser.
D. Time of the Essence. Time is of the essence of this Agreement.
E. Governing Law. This Agreement shall be governed and interpreted in
accordance with the laws of the State of Colorado. The provisions of this
Section 10(E) shall survive the Closing and delivery of the Deed or sooner
termination of this Agreement.
F. Notices. All notices, requests, demands or other communications
required or permitted under this Agreement shall be in writing and
delivered (i) personally, (ii) by certified mail, return receipt requested,
postage prepaid, (iii) by overnight courier (such as Federal Express), or
(iv) by facsimile transmission (with a copy sent via (i), (ii) or (iii)),
addressed as follows:
1. If to Seller:
c/o Equity Office Properties Management Corp.
Two North Riverside Plaza
Suite 2200
Chicago, Illinois 60606
Telephone: (312) 466-3595
Facsimile: (312) 559-5051
Attention: Alissa Helgesen
19
<PAGE>
With a copy to:
Rosenberg & Liebentritt, P.C.
Suite 1600
Two North Riverside Plaza
Chicago, Illinois 60606
Telephone: (312) 466-4577
Facsimile: (312) 454-0335
Attention: Daniel Acosta
2. If to Purchaser:
Invesco Realty Advisors, Inc.
One Lincoln Center
5400 LBJ Freeway/LB 2
Suite 700
Dallas, Texas 80237
Telephone: (972) 715-7400
Facsimile: (972) 715-5811
Attention: Ms. Amy Morris
With a Copy to:
Jones, Day, Reavis & Pogue
555 W. Fifth Street, 46th Floor
Los Angeles, California 90013
Telephone: (213) 243-2344
Facsimile: (213) 243-2539
Attention: Mary J. Garnett, Esq.
All notices given in accordance with the terms hereof shall be deemed
received (1) when delivered, if personally delivered, (2) forty-eight (48)
hours after posting, if sent by certified mail, return receipt requested,
postage prepaid, (3) the next business day after deposit with the courier
company, if sent by overnight courier, and (4) on the day sent, if sent by
facsimile transmission prior to the close of the recipient's business day.
Either party hereto may change the address for receiving notices, requests,
demands or other communication by notice sent in accordance with the terms
of this Section 10(F).
G. Inspections. Purchaser's right of inspection pursuant to Section 8(A)
above shall be subject to the rights of tenants under the Leases and other
occupants and users of the Property. No inspection shall be undertaken
without at least forty-eight (48) hours prior telephonic notice to Seller.
Seller shall have the right to be present at any or all inspections.
Purchaser may contact tenants directly or conduct engineering inspections;
provided that Purchaser shall notify Seller forty-eight (48) hours prior to
any such contact or inspection so that Seller may have a
20
<PAGE>
representative present during such contact or inspection. No inspection
shall involve the taking of samples or other physically invasive procedures
without the prior consent of Seller, which may be withheld in Seller's sole
and absolute discretion. Notwithstanding anything to the contrary contained
in this Agreement, Purchaser shall indemnify and hold Seller and its
employees and agents, and each of them, harmless from and against any and
all losses, claims, damages and liabilities (including, without limitation,
reasonable attorneys' fees incurred in connection therewith) directly
arising out of or resulting from Purchaser's exercise of its rights under
this Agreement, including, without limitation, its rights of inspection as
provided for in Section 8(A) above, but excluding, however, any pre-
existing conditions on the Property. Except upon the written request of
Seller pursuant to Section 10(K) below or upon the oral request of Seller,
Purchaser shall not advise Seller of the results, or deliver to Seller
copies, of any of the studies, reports, surveys or other information, data
and/or documents relating to the Property or any part thereof prepared by
or at the request of Purchaser, its employees, agents, representatives or
contractors. The provisions of this Section 10(G) shall survive the Closing
and delivery of the Deed or sooner termination of this Agreement.
H. As-Is Condition. ACKNOWLEDGING THE PRIOR USE OF THE PROPERTY AND
PURCHASER'S OPPORTUNITY TO INSPECT THE PROPERTY AND EXCEPT AS SPECIFICALLY
PROVIDED IN THIS AGREEMENT, PURCHASER AGREES TO TAKE THE PROPERTY "AS IS"
WITH ALL FAULTS AND CONDITIONS THEREON, SUBJECT TO USE, ORDINARY WEAR AND
TEAR, NATURAL DETERIORATION AND SUCH OTHER MATTERS AS ARE PERMITTED BY THIS
AGREEMENT. EXCEPT AS OTHERWISE PROVIDED IN THIS AGREEMENT, ANY INFORMATION,
REPORTS, STATEMENTS, DOCUMENTS OR RECORDS, INCLUDING, WITHOUT LIMITATION,
THE ITEMS SET FORTH IN EXHIBIT P ATTACHED HERETO (COLLECTIVELY, THE
"DISCLOSURES") PROVIDED OR MADE TO PURCHASER OR ITS CONSTITUENTS OR AGENTS
BY SELLER, ITS AGENTS, EMPLOYEES, CONTRACTORS OR REPRESENTATIVES,
CONCERNING THE PROPERTY SHALL NOT BE REPRESENTATION OR WARRANTIES. EXCEPT
AS OTHERWISE PROVIDED IN THIS AGREEMENT, PURCHASER SHALL NOT RELY ON SUCH
DISCLOSURES, BUT RATHER, PURCHASER SHALL RELY ONLY ON ITS OWN INSPECTION OF
THE PROPERTY. PURCHASER ACKNOWLEDGES AND AGREES THAT, EXCEPT AS EXPRESSLY
PROVIDED IN THIS AGREEMENT, NEITHER SELLER NOR ITS AGENTS, EMPLOYEES,
CONTRACTORS OR REPRESENTATIVE HAS MADE, AND NONE OF THEM MAKES AND EACH
SPECIFICALLY DISCLAIMS ANY STATEMENTS, REPRESENTATIONS, WARRANTIES,
PROMISES, COVENANTS, AGREEMENTS OR GUARANTIES OF ANY KIND OR CHARACTER
WHATSOEVER, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, PAST, PRESENT OR
FUTURE, OF, AS TO, CONCERNING OR WITH RESPECT TO (A) THE NATURE, QUALITY OR
CONDITION OF THE PROPERTY, INCLUDING, WITHOUT LIMITATION, THE WATER, SOIL
AND GEOLOGY, (B) THE INCOME HERETOFORE DERIVED OR TO BE DERIVED FROM THE
PROPERTY, (C) THE SUITABILITY OF THE PROPERTY FOR ANY AND ALL ACTIVITIES
AND USES WHICH PURCHASER MAY CONDUCT THEREON, (D) THE COMPLIANCE OF OR BY
THE PROPERTY OR ITS OPERATION WITH ANY LAWS, RULES, ORDINANCES OR
REGULATIONS OF ANY APPLICABLE GOVERNMENTAL AUTHORITY OR BODY, (E) THE
HABITABILITY, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OF THE
PROPERTY, OR (F) ANY OTHER MATTER WITH RESPECT TO
21
<PAGE>
THE PROPERTY, AND SPECIFICALLY DISCLAIM ANY REPRESENTATIONS REGARDING
TERMITES OR WASTES, AS DEFINED BY THE U.S. ENVIRONMENTAL PROTECTION AGENCY
REGULATIONS AT 40 C.F.R., OR ANY HAZARDOUS SUBSTANCE, AS DEFINED BY THE
COMPREHENSIVE ENVIRONMENTAL RESPONSE COMPENSATION AND LIABILITY ACT OF 1980
("CERCLA"), AS AMENDED, AND REGULATIONS PROMULGATED THEREUNDER.
PURCHASER, ITS SUCCESSORS AND ASSIGNS, HEREBY WAIVE, RELEASE AND AGREE
NOT TO MAKE ANY CLAIM OR BRING ANY COST RECOVERY ACTION OR CLAIM OF
CONTRIBUTION, INDEMNITY OR OTHER ACTION OR CLAIM AGAINST SELLER OR ITS
AFFILIATES, DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, ATTORNEYS OR ASSIGNS
(A) UNDER ANY FEDERAL, STATE OR LOCAL ENVIRONMENTAL OR HEALTH AND SAFETY
LAW OR REGULATION, INCLUDING CERCLA OR ANY STATE EQUIVALENT, OR ANY SIMILAR
LAW NOW EXISTING OR HEREAFTER ENACTED; (B) WITH RESPECT TO, IN CONNECTION
WITH OR RESULTING FROM ANY DISCHARGE, DISPOSAL, RELEASE OR ESCAPE OF ANY
CHEMICAL, OR ANY HAZARDOUS OR TOXIC MATERIAL WHATSOEVER, ON, AT, TO OR FROM
THE PROPERTY; OR (C) ANY ENVIRONMENTAL CONDITIONS OR OTHER CONDITIONS
WHATSOEVER ON, UNDER OR IN THE VICINITY OF THE PROPERTY, UNLESS AND EXCEPT
IF SUCH CLAIMS ARISE FROM ANY THIRD PARTY CLAIMS ASSERTED AGAINST PURCHASER
WITH RESPECT TO ANY DISCHARGE, DISPOSAL, RELEASE OR ESCAPE OF ANY CHEMICAL,
OR ANY HAZARDOUS OR TOXIC MATERIAL ON, AT, TO OR FROM THE PROPERTY IN
VIOLATION OF APPLICABLE LAW, AND SUCH DISCHARGE, DISPOSAL, RELEASE OR
ESCAPE WAS CAUSED BY THE ACT OR OMISSION OF SELLER OR OTHERS DURING
SELLER'S PERIOD OF OWNERSHIP OF THE PROPERTY; PROVIDED, HOWEVER, THAT WITH
RESPECT TO SUCH A CLAIM ARISING FROM ANY THIRD PARTY CLAIM ASSERTED AGAINST
PURCHASER WITH RESPECT TO ANY SUCH DISCHARGE, DISPOSAL, RELEASE OR ESCAPE
CAUSED BY THE ACT OR OMISSION OF OTHERS, PURCHASER MAY BRING SUCH A CLAIM
AGAINST SELLER ONLY IF PURCHASER PROVIDES WRITTEN NOTICE TO SELLER OF SUCH
CLAIM WITHIN TWO (2) YEARS AFTER THE CLOSING.
THE PROVISIONS OF THIS SECTION 10(H) SHALL SURVIVE THE CLOSING AND
DELIVERY OF THE DEED OR SOONER TERMINATION OF THIS AGREEMENT.
I. Waiver of Jury Trial. In any lawsuit or other proceeding under or with
respect to this Agreement, the parties waive any rights they may have to
trial by jury. In addition, Purchaser waives any right to seek rescission
of the transaction provided for in this Agreement. The provisions of this
Section 10(I) shall survive the Closing and delivery of the Deed or sooner
termination of this Agreement.
J. Confidentiality. Purchaser and Seller acknowledge that they have
entered into a Confidentiality Agreement attached as EXHIBIT Q regarding
the transaction contemplated by this Agreement. In addition, Seller agrees
that it shall not make any disclosures of the transaction contemplated by
this Agreement to any third party, except for disclosures to lenders,
accountants, lawyers, consultants, advisors and other professionals to the
extent necessary to
22
<PAGE>
satisfy Seller's obligations under this Agreement and except for
disclosures required by law. Broker shall not make any disclosure with
respect to the Property, including without limitation, the sales price of
the Property or the identity of the Purchaser, without the written approval
of Seller and Purchaser, which may withheld in their sole discretion.
Broker hereby indemnifies, defends and holds harmless Seller and Purchaser
and Seller's and Purchaser's principals, their officers, directors,
members, partners, agents and employees from and against any loss,
liability, claim or action (including without limitation, reasonable
attorneys' fees and expenses) arising out of or related to a disclosure
made by Broker without first obtaining the written approval of Seller and
Purchaser. Broker's obligations under this Section 10(J) shall survive
Closing or any termination of this Agreement. Purchaser's obligations under
this Section 10(J) shall survive any termination of this Agreement, as set
forth in the Confidentiality Agreement.
K. Reports. If for any reason Purchaser does not consummate the Closing,
then Purchaser shall, upon Seller's written request, assign and transfer to
Seller, to the extent transferrable, all of its right, title and interest
in and to any and all engineering and environmental studies, reports,
surveys and other information, data and/or documents (collectively, the
"Reports") relating to the Property or any part thereof prepared by or at
the request of Purchaser, its employees and agents, and shall deliver to
seller copies of the Reports; provided, however, Seller shall reimburse
Purchaser for the cost of obtaining the Reports (including the cost of
retaining the third-party consultants who prepared the Reports) before
Purchaser delivers such Reports and the Reports shall be provided without
representation or warranty of any kind. The provisions of this Section
10(K) shall survive any termination of this Agreement.
L. New Leases. Seller and Purchaser further agree as follows:
1. From and after the date of the Letter of Intent through the
Closing, Seller has delivered or shall deliver, as applicable, for
Purchaser's review (a "New Lease Notice") a copy of any proposed New
Lease, financial statements of the proposed new tenant, if such
financial statements were provided to Seller, and such other
information as may reasonably be requested by Purchaser, if such
information is in the possession of Seller. During the period between
the date of this Agreement and Closing, Purchaser shall have the right
to approve or disapprove of any New Lease by responding in writing to
Seller's New Lease Notice within three (3) business days after
Purchaser's receipt of the New Lease Notice. If Purchaser fails to
approve or disapprove of such New Lease within such three (3) business
day period, Purchaser shall be deemed to have conclusively approved of
such New Lease. In the event that Purchaser reasonably disapproves of
such New Lease within such three (3) business day period, Seller shall
not enter into such New Lease. If Seller enters into such a New Lease
after Purchaser reasonably disapproves of such New Lease as provided
in the preceding sentence, then Purchaser shall have the right, within
five (5) days after Purchaser's receipt of written notice of Seller's
entering into such New Lease, to terminate this Agreement. If
Purchaser does not so terminate this Agreement, Purchaser shall be
deemed to have conclusively approved of such New Lease. If Purchaser
elects to terminate this Agreement pursuant to the provisions of this
Section 10(L)(1) and Purchaser is otherwise not in material default of
its obligations under this Agreement, Purchaser may elect to obtain a
refund of the Earnest Money from the Escrowee and pursue damages, if
available pursuant to Section 7(A)(ii), in which event this Agreement
shall, without further action of the parties, become null and void and
neither party shall have any further rights or obligations under this
Agreement except those rights and obligations
23
<PAGE>
which expressly survive termination of this Agreement as provided
herein and Seller's rights under the Confidentiality Agreement (as
defined in Section 8(A) above). Purchaser hereby agrees that it has
approved the terms of the New Leases and third-party commissions
related thereto, if any, listed on EXHIBIT V, provided, however, that
Purchaser shall have further approval rights pursuant to this Section
10(L)(1) in the event that there are material changes to the economic
terms of such leases.
2. All tenant improvement costs and/or allowances and leasing
commissions relating to (a) New Leases entered into by Seller during
the period between the date of this Agreement and the expiration of
the Inspection Period, and (b) New Leases entered into by Seller after
the Inspection Period and prior to Closing which Purchaser approves
(or is deemed to approve) in accordance with Section 11(L)(1) above,
shall be prorated in accordance with Section 4(C)(i)(c) above.
M. Reporting Person. Seller and Purchaser hereby designate Escrowee to
act as and perform the duties and obligations of the "reporting person"
with respect to the transaction contemplated by this Agreement for purposes
of 26 C.F.R. Section 1.6045-4(e)(5) relating to the requirements for
information reporting on real estate transaction closed on or after January
1, 1991. In this regard, Seller and Purchaser each agree to execute at
Closing, and to cause the Escrowee to execute at Closing, a Designation
Agreement, designating Escrowee as the reporting person with respect to the
transaction contemplated by this Agreement.
N. Counterparts. This Agreement may be executed in any number of
identical counterparts, any or all of which may contain signatures of fewer
than all of the parties but all of which taken together shall constitute a
single instrument.
O. No Recording. Neither this Agreement nor a memorandum thereof shall be
recorded against the Property.
P. Limitation of Liability. Purchaser acknowledges and agrees that any
recovery against Seller that Purchaser may be entitled to as a result of
any claim, demand or cause of action that Purchaser may have against Seller
with respect to this Agreement and the transactions contemplated herein
shall only be recoverable against Seller in an amount not in excess of
Seven Hundred Fifty Thousand Dollars ($750,000.00). The provisions of this
Section 10(P) shall survive the Closing and the delivery of the Deed.
Q. Conflict. In the event of a conflict between the terms and provisions
of the Confidentiality Agreement and this Agreement, the terms and
provisions of this Agreement shall control.
R. No survival unless specifically provided. Except as specifically
provided for in this Agreement, the rights, obligations, representations,
warranties, covenants and Agreements of the parties set forth in this
Agreement shall not survive the Closing or any termination of this
Agreement.
S. No third-party beneficiaries. Except as specifically provided herein,
no third parties shall have the benefit of any of the provisions of this
Agreement, nor is this Agreement made with the intent that any person or
entity other than Seller and Purchaser shall rely hereon.
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<PAGE>
T. Potential Mechanic's Liens related to Tenant Buildout. Should the
timing and/or scope of work to be performed by the lessor under Leases
and/or New Leases require Seller to enter into contracts with contractors
or other parties during the period between the date of this Agreement and
Closing in order to comply with the lessor's obligations under such Leases
and/or New Leases and the work performed under such contracts will not be
completed prior to Closing, Seller shall submit the proposed contract with
such contractor or other parties to Purchaser for its approval. Purchaser
shall have the right (exercisable in its reasonable discretion) to approve
or disapprove of such contract. If Purchaser fails to approve or disapprove
of such contract within five (5) business days after its receipt of same,
Purchaser shall be deemed to have conclusively approved of such contract.
In the event Purchaser reasonably disapproves of such contract within such
five (5) business day period, Seller shall not enter into such contract. If
Seller enters into such contract after Purchaser reasonably disapproves of
such contract as provided in the preceding sentence, then Purchaser shall
have the right, within five (5) days after Purchaser's receipt of written
notice of seller's entering into such contract, to notify Seller in writing
as to whether or not it will elect to terminate the Agreement due to Seller
entering into such contract. Upon Seller's receipt of written notice from
Purchaser of Purchaser's intent to terminate the Agreement as permitted
under the preceding sentence, Seller shall have five (5) days to terminate
such contract so as to result in no liability to Purchaser after Closing
under such contract and, in the event that Seller so terminates such
contract within such five (5) day period, Purchaser shall not be permitted
to terminate the Agreement due to Seller entering into such contract. If
Seller does not terminate the contract as provided above within the five
(5) day period, then, if Purchaser is otherwise entitled hereunder to
return of the Earnest Money, the Earnest Money shall be returned to
Purchaser by the Escrowee, in which event this Agreement shall, without
further action of the parties, become null and void and neither party shall
have any further rights or obligations under this Agreement except those
rights and obligations which expressly survive termination of this
Agreement as provided herein and Seller's rights under the Confidentiality
Agreement (as defined in Section 8(A) above). If a contract approved under
this Section 10(T) requires that Seller pay any amounts under such contract
prior to Closing, Seller shall pay such amounts (and such amounts shall be
prorated between Purchaser and Seller as provided in Sections 4(C)(i)(c)
above). At Closing, Purchaser shall assume the obligations of Seller under
all contracts approved under this Section 10(T) and all Service Contracts
with respect to construction, including the obligation for payment of all
amounts owed under such contracts and Service Contracts after Closing. If
any such approved contract(s) and/or Service Contracts result in work for
which the provider or subcontractor thereunder may obtain a lien against
the Property if such work is not paid for and Purchaser is obligated to pay
for such work as provided in the preceding sentence, then the "Permitted
Exceptions" shall be deemed to include any potential liens and related
notices of commencement as a result thereof. Notwithstanding any provision
to the contrary, Seller and Purchaser acknowledge that (i) Seller shall be
responsible for all amounts due under the contracts related to the tenant
improvement work described on EXHIBIT S, as provided in Section 4(C)(i)(c),
and (ii) if such tenant improvement work is not completed as of Closing,
Purchaser shall assume the construction contracts for such tenant
improvement work as of Closing, provided that Seller delivers partial lien
waivers from the contractors for all amounts that have been paid under such
contracts as of the Closing. The assumption of such construction contracts
shall be accomplished by listing such contracts on EXHIBIT A to the
Assignment and Assumption of Service Contracts. The provisions of this
Section 10(T) shall survive the Closing and delivery of the Deed.
U. Pre-Closing Operation Covenants. Seller shall comply with the
covenants contained in this Section 10(U) from the date of this Agreement
through the Closing Date or earlier
25
<PAGE>
termination of this Agreement unless Purchaser consents otherwise in
writing. Purchaser may grant or withhold any such consent requested by
seller in Purchaser's sole discretion.
1. Seller shall not, without Purchaser's prior written approval,
enter into a new Service Contract, or amend or waive an existing service
contract, that is not terminable upon thirty (30) days written notice
without penalty.
2. Seller shall maintain or cause to be maintained in full force and
effect its existing casualty insurance with respect to the Property and
comprehensive general liability insurance.
3. Seller shall not (i) sell or otherwise transfer any interest in
all or any portion of the Property or (ii) negotiate or enter into any
letters of intent or other agreements for the sale or other transfer of the
Property or any portion thereof.
4. Prior to the Closing, Seller shall pay, or otherwise provide for
the payment of, all obligations that have accrued and are due as of Closing
for leasing commissions and tenant improvements incurred during Seller's
period of ownership for all leases, including those entered into on or
after the date of this Agreement but prior to the Closing Date, except as
otherwise provided in this Agreement.
5. Between the date of this Agreement and the Closing Date, Seller
shall operate the Property in the normal course of Seller's business and
maintain the Property in the same condition as of the date of this
Agreement, ordinary wear and tear excepted and subject to Section 5 above.
Notwithstanding anything in the preceding sentence to the contrary, in no
event shall Seller be required to make any capital improvements or other
repairs, the cost of which cannot be passed through to tenants under the
Leases (collectively, "Capital Repairs"), which cost, in the aggregate, in
excess of $75,000. If Seller elects to make a Capital Repair, Seller and
Purchaser agree that the cost of such Capital Repair shall be amortized
over the useful life of such Capital Repair, as determined using generally
accepted accounting principles. Seller's share of the cost of a Capital
Repair shall be calculated by multiplying the total cost of the Capital
Repair by the proportion of the useful life of the Capital Repair that will
occur before the Closing Date. Purchaser's share of the cost of a Capital
Repair shall be calculated by multiplying the total cost of the Capital
Repair by the proportion of the useful life of the Capital Repair that will
occur after the Closing Date. For example, if a Capital Repair has a useful
life of 1 year and is made one month before Closing, Seller would be
responsible for 1/12th of the cost of such Capital Repair and Purchaser
would be responsible for 11/12th of the cost of such Capital Repair.
Notwithstanding the foregoing, if Seller elects to make Capital Repairs
that cost in excess of $75,000 in the aggregate and Purchaser's share of
the cost of such Capital Repairs exceeds $75,000 in the aggregate,
Purchaser's shall have the right to terminate this Agreement by written
notice to Seller and to receive a refund of the Earnest Money from the
Escrowee, as its sole remedy, in which event this Agreement shall be null
and void and neither party shall have any rights or obligations under this
Agreement other than those rights that explicitly survive a termination of
this Agreement. If Purchaser elects not to terminate this Agreement,
Purchaser shall consummate the transaction contemplated by this Agreement
and shall be responsible for its share of the cost of Capital Repairs as
calculated pursuant to this Section 10(U).
V. Post-Closing Purchaser Covenant. In the event that a broker makes a
claim against Seller after Closing for a leasing commission coming due as
the result of the renewal, extension
26
<PAGE>
or other modification of a Lease by a tenant and Purchaser after Closing,
Purchaser shall reasonably cooperate with Seller and shall provide Seller
with information reasonably requested by Seller concerning the renewal,
extension or other modification of such Lease. This Section 10(V) shall
survive the Closing and delivery of the Deed.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY BLANK]
27
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IN WITNESS WHEREOF, Seller and Purchaser have executed and delivered this
Agreement as of the date first above written.
SELLER:
FIRST CAPITAL PRENTICE PLAZA ASSOCIATES, an
Illinois joint venture
By: First Capital Income Properties, Ltd. --
Series XI, an Illinois limited partnership,
joint venturer
By: First Capital Financial Corporation,
as General Partner
By:
----------------------------------
Name:
--------------------------------
Its:
---------------------------------
By: First Capital Income and Growth Fund --
Series XII, an Illinois limited
partnership, joint venturer
By: First Capital Financial Corporation,
as General Partner
By:
----------------------------------
Name:
--------------------------------
Its:
---------------------------------
PURCHASER:
INVESCO REALTY ADVISORS, INC., a Delaware
corporation
By:
--------------------------------------------
Name:
------------------------------------------
Its:
-------------------------------------------
Broker joins in the execution of this Agreement solely for the purpose of
agreeing to be bound by Section 10(J) hereof.
CUSHMAN REALTY CORPORATION
By:
--------------------------------------------
Name:
------------------------------------------
Its:
-------------------------------------------
28
<PAGE>
LIST OF EXHIBITS
----------------
A - Legal Description
B - Permitted Exceptions
C - Service Contracts
D - Joint Order Escrow Agreement
E - Assignment and Assumption of Leases and Security Deposits
F - Assignment and Assumption of Service Contracts
G - Form Tenant Estoppel Certificate
H - Intentionally Omitted
I - List of Litigation
J - Bill of Sale
K - Tangible Personal Property
L - Notice Letter to Tenants
M - Notice Letter to Vendors
N - Rent Roll
O - Intentionally Omitted
P - Environmental Reports
Q - Confidentiality Agreement
R - Quit Claim Assignment of General Intangibles
S - New Leases Executed Prior to Closing
T - Special Warranty Deed
U - Survey Requirements and Certification
V - Approved New Leases
W - Scope of Invasive Testing
29
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EXHIBIT A
LEGAL DESCRIPTION
-----------------
A part of a resubdivision of Block 6, Denver Technological Center Filing No. 2,
more particularly described as follows:
Beginning at the Northwest corner of Lot 1, Block 2; thence easterly on the
Northerly line of said Block 2, a distance of 465.00 feet; thence on an angle of
110 degrees 14 minutes 24 seconds to the right a distance of 287.94 feet to a
point on the northeasterly line of east Prentice Avenue; thence on an angle of
86 degrees 39 minutes 25 seconds to the right and along said northeasterly line
a distance of 225.00 to a point of curvature; thence continuing along said
northeasterly line of east Prentice Avenue and along a curve to the right having
a radius of 211.62 feet and a central angle of 73 degrees 43 minutes 16 seconds
an arc distance of 272.29 feet to the point of beginning.
Except that portion thereof described as follows:
A part of a resubdivision of Block 6, Denver Technological Center Filing No. 2,
more particularly described as follows:
Beginning at the northwest corner of Lot 1, Block 2; thence easterly on the
northerly line of said Block 2, a distance of 5.00 feet; thence on an angle of
90 degrees 37 minutes 05 seconds a distance of 45.79 feet to a point of
curvature, also being a point on the northeasterly line of east Prentice Avenue;
thence northerly along said northeasterly line of east Prentice Avenue, along a
curve to the right having a radius of 211.62 feet and a central angle of 12
degrees 28 minutes 44 seconds an arc distance of 46.10 feet to the point of
beginning.
<PAGE>
EXHIBIT B
PERMITTED EXCEPTIONS
--------------------
1. Acts of Purchaser, and those claiming by, through and under Purchaser.
2. General and special taxes and assessments not yet due and payable.
3. Rights of tenants under the Leases.
4. Zoning, building and other governmental and quasi-governmental laws, codes
and regulations.
5. Matters which are disclosed by that certain survey prepared by Transystems
Corporation, dated October 23, 1998.
6. Covenants, conditions and restrictions, which do not include a forfeiture
or reverter clause, and any and all supplements, amendments, and
annexations thereto, set forth in the instrument(s) recorded November 18,
1964 in Book 1560 at Page 479, as modified by instruments recorded December
18, 1978 in Book 2903 at Page 194, March 15, 1982 in Book 3592 at Page 324,
January 18, 1984 in Book 4068 at Page 726, and February 10, 1994 in Book
7410 at Page 135.
7. Six foot gas line easements along the southerly and westerly lot line of
said property, as shown on the plats of Denver Technological Center Filing
No. 2 and a resubdivision of Block 6, Denver Technological Center Filing
No. 2.
8. Restrictions and reservations, including water rights, minerals, easements
and Right of First Refusal, as contained in Deed from TCD North, Inc.,
recorded October 3, 1983 in Book 3983 at Page 154, as amended by instrument
recorded March 29, 1988 in Book 5396 at Page 685.
9. Covenants, conditions and restrictions, which do not include a forfeiture
or reverter clause, and any and all supplements, amendments, and
annexations thereto, set forth in the instrument(s) recorded October 3,
1983 in Book 3983 at Page 166.
10. An easement for utility lines and incidental purposes granted to Public
Service Company of Colorado and Mountain States Telephone and Telegraph
Company by the instrument recorded October 29, 1984 in Book 4293 at Page
555 over a portion of the land.
11. Terms, conditions, provisions, agreements and obligations specified under
the agreement recorded October 17, 1986 in Book 4923 at Page 171.
12. An easement for utility lines and incidental purposes granted to Public
Service Company of Colorado by the instrument recorded December 15, 1986 in
Book 4985 at Page 34, upon the terms and conditions set forth in the
instrument, over a portion of the land.
<PAGE>
EXHIBIT C
PRENTICE PLAZA
SERVICE CONTRACTS
-----------------
--------------------------------------------------------
VENDOR NAME TYPE OF SERVICE
--------------------------------------------------------
<PAGE>
EXHIBIT D
JOINT ORDER ESCROW AGREEMENT
----------------------------
PRENTICE PLAZA
ENGLEWOOD, COLORADO
EARNEST MONEY JOINT ORDER ESCROW AGREEMENT
------------------------------------------
Escrow Officer:_____________
Escrow No.:_________________
Phone No.:__________________
Facsimile No.:______________
Date:_______________________
TO: Chicago Title Insurance Company
171 North Clark Street, Suite 3440
Chicago, Illinois 60601
Attn: Diane Nelson
The amount of Two Hundred Fifty Thousand Dollars ($250,000) (the "Escrow
Deposit") is deposited with the Chicago Office of Chicago Title Insurance
Company in escrow by Invesco Realty Advisors, Inc., a Delaware corporation, the
"Purchaser" under that certain Real Estate Sale Agreement (the "Agreement"),
dated March ___, 1999, with First Capital Prentice Avenue Associates, an
Illinois joint venture, as the "Seller."
As escrowee, you are hereby directed to hold, deal with and dispose of the
Escrow Deposit in accordance with the following terms and conditions:
1. You are to hold the Escrow Deposit until: (a) you are in receipt of a joint
order by the undersigned Seller and Purchaser as to the disposition of the
Escrow Deposit; or (b) you are in receipt of a written demand (the
"Demand") from either Seller or Purchaser for the payment of the Escrow
Deposit or any portion thereof. Upon receipt of any Demand, you are
directed to so notify the other party, enclosing a copy of the Demand. If
within five (5) days after the non-demanding party has received or is
deemed to have received your notice of your receipt of the Demand, you have
not received from the non-demanding party its notice of objection to the
Demand, then you are to disburse the Escrow Deposit as requested by the
Demand. If within said five-day period you receive from the non-demanding
party its notice of objection to the Demand, then you are to continue to
hold the Escrow Deposit until you are in receipt of a joint order as
aforesaid, but after sixty (60) days you may deposit the Escrow Deposit
with a Court of competent jurisdiction.
2. Notwithstanding the foregoing, as escrowee, you are hereby expressly
authorized to regard and to comply with and obey any and all orders,
judgments or decrees entered or issued by any Court, and in case you obey
or comply with any such order, judgment or decree of any Court, you shall
not be liable to either of the parties hereto or any other person or entity
by reason of such compliance, notwithstanding any such order, judgment or
decree be entered without jurisdiction or be subsequently reversed,
modified, annulled, set aside or vacated. In case of any suit or proceeding
<PAGE>
regarding these Escrow Instructions, to which you are or may at any time be
a party, the undersigned Seller and Purchaser agree that the non-prevailing
party shall pay to you upon demand all reasonable costs and expenses
incurred by you in connection herewith.
3. Any escrow fee to be charged by you is to be borne equally by the
undersigned Seller and Purchaser.
4. As escrowee, you shall invest the Escrow Deposit in an interest-bearing
savings or money market account or short term U.S. Treasury Bills or
similar cash equivalent securities, as the undersigned Purchaser may
direct. Any interest earned on the Escrow Deposit, after you deduct your
customary investment charges, shall become and be deemed to be a part of
the Escrow Deposit.
5. All notices or other communications hereunder shall be in writing and shall
be personally delivered or sent by overnight courier (such as Federal
Express), by facsimile transmission or by first class United States Mail,
postage prepaid, registered or certified (return receipt requested) to the
respective addresses for the Seller, Purchaser and escrowee as herein
provided. A notice is given on the date it is personally delivered, sent by
overnight courier or facsimile transmission, or deposited with the United
States Mail for delivery as aforesaid. A notice is received on the date it
is personally delivered, the day after sent if sent by overnight courier or
facsimile transmission or, if sent by mail as aforesaid, on the date noted
on the return receipt.
6. Either Purchaser or Seller may act hereunder either directly or through
their respective attorneys:
The attorney for the Seller is:
Daniel Acosta
Rosenberg & Liebentritt, P.C.
Two N. Riverside Plaza, Suite 1600
Chicago, Illinois 60606
Phone: 312/466-4577
Facsimile: 312/575-7041
The attorney for the Purchaser is:
Mary J. Garnett
Jones, Day, Reavis & Pogue
555 W. Fifth Street, 46th Floor
Los Angeles, California 90013
Phone: (213) 243-2344
Facsimile: (213) 243-2539
7. This Escrow Agreement is being entered into to implement the Agreement and
shall not (nor be deemed to) amend, modify or supersede the Agreement or
act as a waiver of any rights, obligations or remedies set forth therein;
provided, however, that you may rely solely upon these Escrow Instructions.
2
<PAGE>
Agreed and Acknowledged this _____ day of _________________, 1999
PURCHASER: SELLER:
INVESCO REALTY ADVISORS, INC. FIRST CAPITAL PRENTICE AVENUE ASSOCIATES
By:_______________________________ By:__________________________________
Its:______________________________ Its:__________________________________
Address: Address:
Invesco Realty Advisors, Inc. First Capital Prentice Avenue Associates
One Lincoln Center c/o Equity Office Properties Trust
5400 LBJ Freeway/ LB 2 Two North Riverside Plaza
Suite 700 Suite 2200
Dallas, Texas 80237 Chicago, Illinois 60606
Attn: Amy Morris Attn: Alissa Helgesen
Phone: 972/715-7400 Phone: 312/466-3595
Agreed and Acknowledged this ___ day of __________, 1999
CHICAGO TITLE INSURANCE COMPANY
By: __________________________
Title:
3
<PAGE>
EXHIBIT E
ASSIGNMENT AND ASSUMPTION
OF LEASES AND SECURITY DEPOSITS
-------------------------------
THIS ASSIGNMENT AND ASSUMPTION OF LEASES AND SECURITY DEPOSITS (this
"Assignment") is entered into as of the ______________ day of __________, 1998,
by and between FIRST CAPITAL PRENTICE AVENUE ASSOCIATES, an Illinois joint
venture ("Assignor"), having offices at Two North Riverside Plaza, Chicago,
Illinois 60606, and ______________________, a __________ ("Assignee"), with an
office at _____________________.
1. Property. The "Property" shall mean the real property located in the
City of Englewood, County of Arapahoe, State of Colorado, legally described in
EXHIBIT A attached to this Assignment, together with all of Assignor's right,
title and interest in and to the building, structures and other improvements
located thereon, and commonly known as "Prentice Plaza".
2. Leases. The "Leases" shall mean all leases affecting the Property, or
any part thereof, which leases are listed on EXHIBIT B attached hereto. "Lease"
shall mean any one of the Leases.
3. Security Deposits. "Security Deposits" shall mean all unapplied
security deposits held by Assignor under the Leases that are set forth on
EXHIBIT C attached hereto.
4. Contract. "Contract" shall mean that certain Real Estate Sale
Agreement dated _______________, 1998 by and between Assignor, as Seller, and
____________________, as Purchaser, for the purchase and sale of the Property.
5. Assignment. For good and valuable consideration received by Assignor,
the receipt and sufficiency of which are hereby acknowledged, Assignor hereby
assigns to Assignee the entire right, title and interest of Assignor in and to
the Leases and the Security Deposits as applicable to the period from and after
the date hereof.
6. Assumption. Assignee hereby assumes all of the covenants, agreements
and obligations of Assignor under or in connection with the Leases as applicable
to the period from and after the date hereof, and Assignee further assumes all
liability of Assignor for the proper refund or return of the Security Deposits.
In addition, Assignee agrees to pay (i) in accordance with Section 4(C)(i)(c) of
the Contract, all remaining brokerage fees, brokerage or leasing commissions and
tenant improvements costs and/or allowances payable in connection with the New
Leases (as defined in the Contract) set forth on EXHIBIT D attached hereto; and
(ii) to the extent not included in (i) above, all brokerage fees, leasing
commissions, tenant improvement costs and/or allowances payable in connection
with the Leases set forth on EXHIBIT E attached hereto.
7. Pre-Closing Obligations. Assignor acknowledges that, as between
Assignor and Assignee, Assignor is responsible for all covenants, agreements and
other obligations under the Leases and with respect to the Security Deposits
arising before the date of this Assignment, except as assumed, released or
waived by Assignee pursuant to this Assignment or the Contract, including,
without limitation, the terms set forth in Section 10(H) of the Contract.
<PAGE>
8. Enforcement. If Assignor or Assignee must resort to a court of law or
equity in order to enforce the provisions of this Assignment as against the
other, the non-prevailing party shall pay the reasonable attorney's fees and
expenses of the prevailing party.
9. Third Parties. Except as set forth in Section 10 of this Assignment,
no third party shall have the benefit of any of the provisions of this
Assignment, nor is this Assignment made with the intent that any person or
entity other than Assignor or Assignee rely hereon.
10. Limited Liability. By accepting this Assignment, Assignee expressly
understands and agrees that any recovery against Assignor that Assignee may be
entitled to as a result of any claim, demand or cause of action that Assignee
may have against Assignor with respect to this Assignment shall only be
recoverable against Assignor as provided in Section 10(P) of the Contract.
11. Successors and Assigns. This Assignment shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and
assigns.
12. Counterparts. This Assignment may be executed in any number of
identical counterparts, any or all of which may contain signatures of fewer than
all of the parties but all of which taken together shall constitute a single
instrument.
13. Representations and Warranties. The representations and warranties
contained in the Contract with respect to the Leases and Security Deposits are
hereby incorporated herein by reference, subject to the terms, conditions and
limitations of the Contract with respect thereto, including, without limitation,
Section 10(P) and Section 9(C) thereof.
14. Further Assurances. In connection with this Assignment, each party
agrees to execute and deliver such additional documents and instruments and
perform such additional acts as may be reasonably necessary to effectuate, carry
out and perform all the terms, provisions and conditions of this Assignment.
15. Governing Law, Consent to Jurisdiction, Venue. This Assignment shall
be deemed to be made and entered into in Colorado and shall be governed by, and
construed in accordance with, Colorado law.
16. Waivers of Jury Trial. ASSIGNOR AND ASSIGNEE HEREBY WAIVE TRIAL BY
JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM BROUGHT BY EITHER AGAINST THE
OTHER ON ANY MATTER ARISING OUT OF OR IN ANY WAY CONNECTED WITH THIS ASSIGNMENT.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY BLANK]
2
<PAGE>
[signature page attached to Assignment and Assumption of Leases and Security
Deposits]
IN WITNESS WHEREOF, Assignor and Assignee have executed this
Assignment the day and year first above written.
ASSIGNOR:
FIRST CAPITAL PRENTICE PLAZA ASSOCIATES, an Illinois
joint venture
By: First Capital Income Properties, Ltd. - Series XI,
an Illinois limited partnership, joint venturer
By: First Capital Financial Corporation, as
General Partner
By:_______________________________
Name:_____________________________
Its:______________________________
By: First Capital Income and Growth Fund - Series XII,
an Illinois limited partnership, joint venturer
By: First Capital Financial Corporation, as
General Partner
By:_______________________________
Name:_____________________________
Its:______________________________
ASSIGNEE:
By:_______________________________
Name:_____________________________
Its:______________________________
EXHIBITS
--------
<TABLE>
<CAPTION>
<S> <C>
A - Legal Description of the Property
B - List of Leases
C - Security Deposits
D - New Leases
E - T.I. and Commissions - Existing Leases
</TABLE>
3
<PAGE>
EXHIBIT F
ASSIGNMENT AND ASSUMPTION OF SERVICE CONTRACTS
----------------------------------------------
THIS ASSIGNMENT AND ASSUMPTION OF SERVICE CONTRACTS (this "Assignment") is
entered into as of the ____ day of ____________, 1997 by and between FIRST
CAPITAL PRENTICE AVENUE ASSOCIATES, an Illinois joint venture ("Assignor"),
having offices at Two North Riverside Plaza, Chicago, Illinois 60606, and
__________________, a _________ ("Assignee"), with an office at
________________________________.
1. Property. The "Property" shall mean the real property located in the
City of Englewood, County of Arapahoe, State of Colorado, legally described in
EXHIBIT A attached to this Assignment, together with all of Assignor's right,
title and interest in and to the building, structures and other improvements
located thereon, and commonly known as "Prentice Plaza".
2. Contract. "Contract" shall mean that certain Real Estate Sale
Agreement dated _______________, 1998 by and between Assignor, as Seller, and
_________________, as Purchaser, for the purchase and sale of the Property.
3. Service Contracts. "Service Contracts" shall mean the service
contracts entered into with respect to the ownership and operation of the
Property that are listed on EXHIBIT B attached to this Assignment.
4. Assignment. For good and valuable consideration received by Assignor,
the receipt and sufficiency of which are hereby acknowledged, Assignor hereby
assigns to Assignee the entire right, title and interest of Assignor in and to
the Service Contracts as applicable to the period from and after the date
hereof.
5. Assumption. Assignee hereby assumes all of the covenants, agreements
and obligations of Assignor under or in connection with the Service Contracts as
applicable to the period from and after the date hereof.
6. Pre-Closing Obligations. Assignor acknowledges that, as between
Assignor and Assignee, Assignor is responsible for all covenants, agreements and
other obligations under the Service Contracts arising before the date of this
Assignment, except as assumed, released or waived by Assignee pursuant to this
Assignment or the Contract, including, without limitation, the terms set forth
in Section 10(H) of the Contract.
7. Enforcement. If Assignor or Assignee must resort to a court of law or
equity in order to enforce the provisions of this Assignment as against the
other, the non-prevailing party shall pay the reasonable attorney's fees and
expenses of the prevailing party.
8. Third Parties. Except as set forth in Section 10 of this Assignment,
no third party shall have the benefit of any of the provisions of this
Assignment, nor is this Assignment made with the intent that any person or
entity other than Assignor or Assignee shall rely hereon.
9. No Representations or Warranties. This Assignment shall not be
construed as a representation or warranty by Assignor as to the transferability
of the Service Contracts, and Assignor
<PAGE>
shall have no liability to Assignee in the event that any or all of the Service
Contracts (i) are not transferable to Assignee or (ii) are canceled or
terminated by reason of this assignment or any acts of Assignee.
10. Limited Liability. By accepting this Assignment, Assignee expressly
understands and agrees that any recovery against Assignor that Assignee may be
entitled to as a result of any claim, demand or cause of action that Assignee
may have against Assignor with respect to this Assignment shall only be
recoverable against Assignor as provided in Section 10(P) of the Contract.
11. Successors and Assigns. This Assignment shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and
assigns.
12. Counterparts. This Assignment may be executed in any number of
identical counterparts, any or all of which may contain signatures of fewer than
all of the parties but all of which taken together shall constitute a single
instrument .
13. Representations and Warranties. The representations and warranties
contained in the Contract with respect to the Service Contracts are hereby
incorporated herein by reference, subject to the terms, conditions and
limitations of the Contract with respect thereto, including, without limitation,
Section 10(P) and Section 9(C) thereof.
14. Further Assurances. In connection with this Assignment, each party
agrees to execute and deliver such additional documents and instruments and
perform such additional acts as may be reasonably necessary to effectuate, carry
out and perform all the terms, provisions and conditions of this Assignment.
15. Governing Law, Consent to Jurisdiction, Venue. This Assignment shall
be deemed to be made and entered into in Colorado and shall be governed by, and
construed in accordance with, Colorado law.
16. Waivers of Jury Trial. ASSIGNOR AND ASSIGNEE HEREBY WAIVE TRIAL BY
JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM BROUGHT BY EITHER AGAINST THE
OTHER ON ANY MATTER ARISING OUT OF OR IN ANY WAY CONNECTED WITH THIS ASSIGNMENT.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY BLANK]
2
<PAGE>
[signature page attached to Assignment and Assumption of Service Contracts]
IN WITNESS WHEREOF, Assignor and Assignee have executed this Assignment the
day and year first above written.
ASSIGNOR:
FIRST CAPITAL PRENTICE PLAZA ASSOCIATES, an Illinois
joint venture
By: First Capital Income Properties, Ltd. Series XI,
an Illinois limited partnership, joint venturer
By: First Capital Financial Corporation, as
General Partner
By:_______________________________
Name:_____________________________
Its:______________________________
By: First Capital Income and Growth Fund Series XII,
an Illinois limited partnership, joint venturer
By: First Capital Financial Corporation, as
General Partner
By:_______________________________
Name:_____________________________
Its:______________________________
ASSIGNEE:
EXHIBITS
--------
A - Legal Description of Property
B - Service Contracts
3
<PAGE>
EXHIBIT G
FORM TENANT ESTOPPEL CERTIFICATE
--------------------------------
[All blanks shall be completed by Seller prior to delivery of Estoppel
Certificate to the Tenant.]
TENANT ESTOPPEL
---------------
The undersigned ("Tenant") hereby certifies that:
1. Tenant is the lessee of certain space (the "Premises") in the
_______________________________ project located in ___________ County,
___________, under a lease agreement, dated __________, 19___ (the "Lease"),
entered into between Tenant and ____________________________, as lessor
("Landlord").
2. The Lease, a true, correct and complete copy of which is attached as
Exhibit A hereto, constitutes the entire agreement between Landlord and Tenant
with respect to the Premises and there have been no amendments, written or oral,
to the Lease except as included in Exhibit A.
3. The Lease is presently in full force and effect and, to the knowledge
of Tenant, Landlord is not in default thereunder. There exist no facts that
would constitute a basis for any such default upon the lapse of time or the
giving of notice or both.
4. Tenant is not in default under the Lease. There exist no facts that
would constitute a basis for any such default upon the lapse of time or the
giving of notice or both.
5. Except as otherwise set forth on attached Exhibit B, all improvements
or repairs required under the terms of the Lease to be made by Landlord or
Tenant through the date hereof have been satisfactorily completed. All
allowances and other payments due to Tenant under the terms of the Lease have
been paid in full.
6. Tenant has accepted the Premises which is comprised of __________
rentable square feet of space, is in occupancy, and is paying rent under the
Lease. Tenant is currently [open for business] [anticipates opening for business
on _____________, 19___].
7. The term of the Lease will end on _____, subject to any extension or
renewal options provided in the Lease. The monthly [base][minimum] rent of
$________ due under the Lease has been paid through _______, 1999. No rent has
been prepaid except for the current month [and $_____________].
8. As of the date of this certificate, to the knowledge of Tenant, there
exist no offsets (except as expressly described in Exhibit B), counterclaims, or
defenses of Tenant under the Lease against Landlord, and there exist no events
that would constitute a basis for any such offset, counterclaim or defense
against Landlord upon the lapse of time or the giving of notice or both.
9. The amount of the security deposit paid under the terms of the Lease
is $_______________.
<PAGE>
10. There are no concessions, bonuses, free rental periods, rebates,
advance rental payments or other matters affecting the rental payable by Tenant
under the Lease except as described in the attached Lease.
11. The undersigned has no right of first refusal, other right or option
pursuant to the Lease or otherwise to purchase all or any part of the Premises
or the Property.
12. Tenant is required to pay its pro rata share of common area expenses
and its pro rata share of the real property taxes and insurance costs of the
project in which the Premises are located. The current monthly payment for these
costs and expenses is $_________________. Tenant has paid all of these costs and
expenses in full through __________________, 19___.
13. The undersigned has not entered into any sublease, assignment or any
other agreement transferring any of its interest in the Lease or the Premises
except as follows:____________________________________________________________
________________________________________.
14. All exhibits attached hereto are by this reference incorporated fully
herein. The term "this certificate" shall be considered to include all such
exhibits.
15. This certificate is made for the benefit of (and may be relied upon
by) Landlord and Buyer and their respective lenders and each of their respective
successors and assigns. The person signing this certificate on behalf of Tenant
has been, and is, duly authorized to do so and has been, and is, duly authorized
to bind Tenant to the terms hereof.
EXECUTED___________________________________, 1998.
TENANT:
------
______________________________
By:___________________________
Its:_____________________
2
<PAGE>
EXHIBIT H
Intentionally Omitted
---------------------
<PAGE>
EXHIBIT I
LIST OF LITIGATION
------------------
NONE.
<PAGE>
EXHIBIT J
BILL OF SALE
------------
BILL OF SALE
KNOW ALL MEN BY THESE PRESENTS, that FIRST CAPITAL PRENTICE PLAZA
ASSOCIATES, an Illinois joint venture, whose address is Two North Riverside
Plaza, Chicago, Illinois 60606 ("Seller"), for and in consideration of the sum
of $10.00 and other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, paid by __________________________________,
a __________________, whose address is ___________________________("Purchaser"),
has granted, bargained, sold, transferred, and delivered, and does grant,
bargain, sell, transfer, and deliver unto Purchaser, its successors and assigns,
all of Seller's right, title, and interest in and to all those items of personal
property described as follows (the "Personal Property"): (a) the furniture,
equipment, supplies, tools, machinery, and other personal property owned by
Seller (including, without limitation, Assignor's right, title, and interest in
the art work, planters, and ashtrays located in the common lobby areas of the
office building), but excluding (i) items leased from leasing companies by
Seller and items owned or leased by tenants or any property manager who is not
an affiliate of Seller, and (ii) computer software not related to life safety
and energy management systems, which are now located on or attached to and used
by Seller in connection with the real property described on Exhibit A attached
hereto (the "Property"); (b) all existing surveys, blueprints, drawings,
operating manuals, and similar documents, plans and specifications (including,
without limitation, structural, HVAC, mechanical, and plumbing plans and
specifications) in Seller's possession; and (c) all tenant lists, lease files,
correspondence, documents, lease booklets, manuals, and promotional and
advertising materials concerning the Property or the property manager's office
(exclusive of any internal books and records of Seller maintained at any of
Seller's offices, internal and external appraisals and/or evaluations of the
Property, and any other privileged or proprietary information); and specifically
including, but not being limited to, those items set forth on Exhibit B attached
hereto.
This Bill of Sale is made without representation, warranty, including,
without limitation, any warranties of habitability, suitability, merchantability
or fitness for a particular use or purpose, or recourse, express or implicit,
except as expressly provided in the Purchase and Sale Agreement (the
"Agreement") dated , between Seller and Purchaser, providing for the sale of the
Property, including the representations and warranties set forth therein and
except that Seller warrants title to the items of Personal Property expressly
listed on Exhibit B attached hereto, against all and every person or persons
claiming the whole or any part thereof, by, through or under Seller.
ALL WARRANTIES OF QUALITY, FITNESS, AND MERCHANTABILITY ARE HEREBY EXCLUDED.
<PAGE>
IN WITNESS WHEREOF, Seller has executed this Bill of Sale on _______, ____,
effective as of ______________________.
FIRST CAPITAL PRENTICE PLAZA ASSOCIATES, an
Illinois joint venture
By:_________________________________________
Name:_______________________________________
Title:______________________________________
2
<PAGE>
EXHIBIT K
TANGIBLE PERSONAL PROPERTY
--------------------------
<PAGE>
EXHIBIT L
---------
NOTICE LETTER TO TENANTS
------------------------
[Letterhead of Equity Office Properties Management Corp.]
NOTICE TO TENANTS
______________, 1998
Re: Prentice Plaza, Englewood, Colorado (the "Property")
Dear Tenant:
This is to notify you that the Property has been sold to _________________,
and that ________________________ has been retained by the new owner as managing
agent of the building.
Any security or other deposits and any prepaid rents under your lease have
been transferred to the new owner.
Effective immediately, all rental payments, notices to the Landlord, and
correspondence pursuant to your lease should be mailed to the following address:
Rents: Notices:
___________________________________ ____________________________________
___________________________________ ____________________________________
___________________________________ ____________________________________
Attention: ________________________
Additionally, please have new Certificates of Insurance issued naming
____________________ as an additional insured. Please deliver said Certificate
to new owner at the "Notices" address set forth above.
Very truly yours,
EQUITY OFFICE PROPERTIES MANAGEMENT CORP.,
a Delaware corporation, as agent
By: __________________________________________
Name:________________________________________
Its: __________________________________________
<PAGE>
EXHIBIT M
---------
NOTICE LETTER TO VENDORS
------------------------
[Letterhead of Equity Office Properties Management Corp.]
__________________, 1998
VIA OVERNIGHT MAIL
- ------------------
[Vendor]
_________________________
_________________________
Re: Sale of Prentice Plaza
________________________
Englewood, Colorado (the "Property")
Dear Service Provider:
This is to notify you that the Property has been sold to _______________, a
_________ ("Purchaser"), and that _________________, having an office at
_____________________________, has been retained by the Purchaser of the
Property as managing agent of the building. Purchaser has assumed all of the
obligations of the undersigned under the [license agreements/service contracts]
with respect to the period from and after the date hereof. All notices to
Purchaser should be sent to Purchaser at the office of the building, and should
be sent or delivered to such address in the manner provided in the [license
agreement/service contract].
Very truly yours,
EQUITY OFFICE PROPERTIES MANAGEMENT CORP., a
Delaware corporation, as agent
By: ___________________________________________
Name:__________________________________________
Its: __________________________________________
<PAGE>
EXHIBIT N
RENT ROLL
---------
<PAGE>
EXHIBIT O
Intentionally Omitted
---------------------
<PAGE>
EXHIBIT P
ENVIRONMENTAL REPORTS
---------------------
1. Report on Environmental Survey of Prentice Plaza, Englewood,
Colorado by PEI Associates, Inc, dated September 7, 1990.
2. No Further Action Request Report by Greystone, dated November 4,
1998.
3. Fax transmittal from Colorado Department of Labor and Employment
dated March 9, 1999.
4. No Further Action Letter from Colorado Department of Labor and
Employment dated March 11, 1999.
<PAGE>
EXHIBIT Q
CONFIDENTIALITY AGREEMENT
-------------------------
<PAGE>
EXHIBIT R
ASSIGNMENT OF GENERAL INTANGIBLES
---------------------------------
THIS ASSIGNMENT OF GENERAL INTANGIBLES (this "Assignment") is entered into
as of the ____ day of __________, 1998 by and between FIRST CAPITAL PRENTICE
AVENUE ASSOCIATES, an Illinois joint venture ("Assignor"), having offices at Two
North Riverside Plaza, Chicago, Illinois 60606, and ________________, a
__________ ("Assignee"), with an office at ________________________________.
1. Property. The "Property" shall mean the real property located in the
City of Englewood, County of Arapahoe, State of Colorado, legally described in
EXHIBIT A attached to this Assignment, together with all of Assignor's right,
title and interest in and to the building, structures and other improvements
located thereon, and commonly known as "Prentice Plaza".
2. Contract. "Contract" shall mean that certain Real Estate Sale
Agreement dated _______________, 1998 by and between Assignor, as Seller, and
_________________, as Purchaser, for the purchase and sale of the Property.
3. Permits. "Permits" shall mean all certificates of occupancy, special
use permits, elevator inspection certificates, operating permits, and all other
permits issued by any governmental authority relating to the use, occupancy,
ownership or operation of the Property, if any.
4. General Intangibles. "General Intangibles" shall mean: (i) all
warranties and guaranties relating to the Property, (ii) all plans,
specifications and floor plans for the Office Building (as defined in the
Contract); and (iii) all existing intangible personal property pertaining to the
Property, including the name "Prentice Plaza" but excluding any intangible
property pertaining in any way to the rights associated with the name "First
Capital" or the name of any entity containing the words "First Capital".
5. Assignment. For good and valuable consideration received by Assignor,
the receipt and sufficiency of which are hereby acknowledged, Assignor hereby
assigns to Assignee the entire right, title and interest of Assignor, if any, in
and to the Permits and General Intangibles, as applicable to the period from and
after the date hereof.
6. Enforcement. If Assignor or Assignee must resort to a court of law or
equity in order to enforce the provisions of this Assignment as against the
other, the non-prevailing party shall pay the reasonable attorney's fees and
expenses of the prevailing party.
7. Third Parties. Except as set forth in Section 10 of this Assignment,
no third party shall have the benefit of any of the provisions of this
Assignment, nor is this Assignment made with the intent that any person or
entity other than Assignor or Assignee shall rely hereon.
8. No Representations or Warranties. This Assignment shall not be
construed as a representation or warranty by Assignor as to the existence,
ownership or transferability of the Permits or the General Intangibles, and
Assignor shall have no liability to Assignee in the event that any or all of the
Permits or the General Intangibles (i) are not transferable to Assignee, or (ii)
are canceled or terminated by reason of this assignment or any acts of Assignee.
<PAGE>
9. Limited Liability. By accepting this Assignment, Assignee expressly
understands and agrees that any recovery against Assignor that Assignee may be
entitled to as a result of any claim, demand or cause of action that Assignee
may have against Assignor with respect to this Assignment shall only be
recoverable against Assignor as provided in Section 10(P) of the Contract.
10. Successors and Assigns. This Assignment shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and
assigns.
11. Counterparts. This Assignment may be executed in any number of identical
counterparts, any or all of which may contain signatures of fewer than all of
the parties but all of which taken together shall constitute a single
instrument.
12. Further Assurances. In connection with this Assignment, each party
agrees to execute and deliver such additional documents and instruments and
perform such additional acts as may be reasonably necessary to effectuate, carry
out and perform all the terms, provisions and conditions of this Assignment.
13. Governing Law, Consent to Jurisdiction, Venue. This Assignment shall be
deemed to be made and entered into in Colorado and shall be governed by, and
construed in accordance with, Colorado law.
14. Waivers of Jury Trial. ASSIGNOR AND ASSIGNEE HEREBY WAIVE TRIAL BY JURY
IN ANY ACTION, PROCEEDING OR COUNTERCLAIM BROUGHT BY EITHER AGAINST THE OTHER ON
ANY MATTER ARISING OUT OF OR IN ANY WAY CONNECTED WITH THIS ASSIGNMENT.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY BLANK]
2
<PAGE>
[signature page attached to Assignment of General Intangibles]
IN WITNESS WHEREOF, Assignor and Assignee have executed this Assignment the
day and year first above written.
ASSIGNOR:
FIRST CAPITAL PRENTICE PLAZA ASSOCIATES, an
Illinois joint venture
By: First Capital Income Properties, Ltd. --
Series XI, an Illinois limited partnership,
joint venturer
By: First Capital Financial Corporation,
as General Partner
By:
----------------------------------
Name:
--------------------------------
Its:
---------------------------------
By: First Capital Income and Growth Fund --
Series XII, an Illinois limited
partnership, joint venturer
By: First Capital Financial Corporation,
as General Partner
By:
----------------------------------
Name:
--------------------------------
Its:
---------------------------------
ASSIGNEE:
EXHIBITS
--------
A - Legal Description of Property
3
<PAGE>
EXHIBIT S
NEW LEASES EXECUTED PRIOR TO CLOSING
------------------------------------
<PAGE>
EXHIBIT T
SPECIAL WARRANTY DEED
---------------------
THIS SPECIAL WARRANTY DEED, effective as of ________________, between FIRST
CAPITAL PRENTICE PLAZA ASSOCIATES, an Illinois joint venture, whose address is
Two North Riverside Plaza, Chicago, Illinois 60606 ("Grantor"), and ____________
__________, a ________________, whose address is _______________________________
____________________("Grantee").
Grantor, for and in consideration of the sum of $10.00 and other valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, has
granted, bargained, sold, and conveyed, and by these presents does grant,
bargain, sell, convey, and confirm unto Grantee, its successors and assigns
forever, all the land described in Exhibit A attached hereto (the "Land"),
together with the buildings, fixtures, and other improvements located on the
Land owned by Grantor, which is known as the Prentice Plaza, __________________,
Arapahoe County, Colorado, along with (a) all easements, servitudes, and other
rights now belonging or appertaining to the Land, and (b) all right, title, and
interest of Grantor in and to any land lying in the bed of any street, road,
avenue, or alley, open or closed, adjoining the Land and to their centerline
(collectively, the "Property").
TO HAVE AND TO HOLD the Property above bargained and described, with the
appurtenances unto Grantee, its successors and assigns forever. And Grantor, for
itself, its successors and assigns, does covenant and agree that Grantor shall
and will WARRANT AND FOREVER DEFEND the Property in the quiet and peaceable
possession of Grantee, its successors and assigns, against all and every person
or persons lawfully claiming or to claim the whole or any part thereof, by,
through, or under Grantor, except for the lien of general taxes and assessments
for the current year and all subsequent years, and except for those matters
shown on Exhibit B attached hereto.
IN WITNESS WHEREOF, Grantor has executed this deed on ______________, ____.
FIRST CAPITAL PRENTICE PLAZA ASSOCIATES, an Illinois
joint venture
By: ______________________________________
Name: ______________________________________
Title: ______________________________________
1
<PAGE>
STATE OF COLORADO )
)
COUNTY OF )
The foregoing instrument was acknowledged before me this ______ day of
______________, 1998, by _____________________ as ________________________.
WITNESS my hand and official seal.
My commission expires: ________________________.
______________________________________________
Notary Public
2
<PAGE>
EXHIBIT U
SUREVEY REQUIREMENTS AND CERTIFICATION
--------------------------------------
3
<PAGE>
EXHIBIT V
APPROVED NEW LEASES
-------------------
4
<PAGE>
EXHIBIT W
SCOPE OF INVASIVE TESTING
-------------------------
Purchaser's environmental consultant will perform a Phase I site assessment
including a limited asbestos survey to identify potential locations of ACM
in materials such as insulation, ceiling and floor tiles, sheetrock, pipe
wrap and other building materials. If available, building blue prints,
records, and building material specifications shall be reviewed to identify
the use of asbestos in the building construction. Up to fifteen (15)
samples of suspect materials, friable and non-friable, shall be collected
for analysis and tested in accordance with EPA-approved methods of sampling
and laboratory analysis. Purchaser's environmental consultant will be LAW
Engineering. Suspect materials to be sampled may include structural system
materials such as fireproofing, mechanical systems material such as thermal
insulation for pipes, pipe fittings/ elbows and boilers, and finish
materials such as wall board, surfacing on ceilings and walls, and ceiling
and floor tiles including mastic. Potentially friable ACM will be patched
as necessary following sampling. LAW Engineering will make every effort to
obtain their samples from inconspicuous places.
5
<PAGE>
FIRST AMENDMENT TO REAL ESTATE SALE AGREEMENT
[Prentice Plaza, Englewood, Colorado]
THIS FIRST AMENDMENT TO REAL ESTATE SALE AGREEMENT (this "Amendment") is
made as of the ___ day of March, 1999, by and between First Capital Prentice
Avenue Associates, an Illinois joint venture (the "Seller") and Invesco Realty
Advisors, Inc., a Delaware corporation ("Purchaser").
WHEREAS, Seller and Purchaser are parties to a Real Estate Sale Agreement
dated as of March 19, 1999 (as amended from time to time, the "Purchase
Agreement"). All capitalized terms which are used but not defined in this
Amendment shall have the same respective meanings ascribed to such terms in the
Purchase Agreement. Seller and Purchaser desire to amend the Purchase Agreement
as more particularly set forth below.
NOW, THEREFORE, in consideration of the Purchase Agreement, the mutual
covenants and agreements therein and hereinafter set forth, and for other good
and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged by the parties hereto, Seller and Purchaser agree as follows:
1. Inspection Period. The Inspection Period is hereby extended to April 9,
1999.
2. Closing Date: The Closing Date shall occur on May 10, 1999.
3. Counterparts. This Amendment may be executed in any number of
counterparts and by the different parties hereto on separate counterparts, each
of which shall be deemed to be an original, and all of such counterparts shall
constitute one agreement. To facilitate execution of this Amendment, the parties
may execute and exchange by telephone facsimile counterparts of the signature
pages.
4. Effect of Amendment. Except as expressly amended hereby, the Purchase
Agreement shall remain in full force and effect and otherwise unmodified.
[THIS PAGE IS INTENTIONALLY LEFT BLANK]
<PAGE>
IN WITNESS WHEREOF, Seller and Purchaser have executed and delivered this
Amendment as of the date first above written.
SELLER:
FIRST CAPITAL PRENTICE PLAZA ASSOCIATES, an
Illinois joint venture
By: First Capital Income Properties, Ltd. - Series
XI, an Illinois limited partnership, joint
venturer
By: First Capital Financial Corporation, as
General Partner
By:______________________________________
Name:____________________________________
Title:___________________________________
By: First Capital Income and Growth Fund - Series
XII, an Illinois limited partnership, joint
venturer
By: First Capital Financial Corporation, as
General Partner
By:______________________________________
Name:____________________________________
Title:___________________________________
PURCHASER:
INVESCO REALTY ADVISORS, INC., a Delaware
corporation
By:______________________________________________
Name:____________________________________________
Title:___________________________________________
<PAGE>
SECOND AMENDMENT TO REAL ESTATE SALE AGREEMENT
[Prentice Plaza, Englewood, Colorado]
THIS SECOND AMENDMENT TO REAL ESTATE SALE AGREEMENT (this "Amendment") is
made as of the ___ day of April, 1999, by and between First Capital Prentice
Avenue Associates, an Illinois joint venture (the "Seller") and Invesco Realty
Advisors, Inc., a Delaware corporation ("Purchaser").
WHEREAS, Seller and Purchaser are parties to a Real Estate Sale Agreement
dated as of March 19, 1999 (as amended from time to time, the "Purchase
Agreement"). All capitalized terms which are used but not defined in this
Amendment shall have the same respective meanings ascribed to such terms in the
Purchase Agreement. Seller and Purchaser desire to amend the Purchase Agreement
as more particularly set forth below.
NOW, THEREFORE, in consideration of the Purchase Agreement, the mutual
covenants and agreements therein and hereinafter set forth, and for other good
and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged by the parties hereto, Seller and Purchaser agree as follows:
1. Inspection Period. The Inspection Period is hereby extended to 4 PM
Chicago time on April 13, 1999.
2. Counterparts. This Amendment may be executed in any number of
counterparts and by the different parties hereto on separate counterparts, each
of which shall be deemed to be an original, and all of such counterparts shall
constitute one agreement. To facilitate execution of this Amendment, the parties
may execute and exchange by telephone facsimile counterparts of the signature
pages.
3. Effect of Amendment. Except as expressly amended hereby, the Purchase
Agreement shall remain in full force and effect and otherwise unmodified.
[THIS PAGE IS INTENTIONALLY LEFT BLANK]
<PAGE>
IN WITNESS WHEREOF, Seller and Purchaser have executed and delivered this
Amendment as of the date first above written.
SELLER:
FIRST CAPITAL PRENTICE PLAZA ASSOCIATES, an
Illinois joint venture
By: First Capital Income Properties, Ltd. --
Series XI, an Illinois limited partnership,
joint venturer
By: First Capital Financial Corporation,
as General Partner
By:
----------------------------------
Name:
--------------------------------
Title:
-------------------------------
By: First Capital Income and Growth Fund --
Series XII, an Illinois limited
partnership, joint venturer
By: First Capital Financial Corporation,
as General Partner
By:
----------------------------------
Name:
--------------------------------
Title:
-------------------------------
PURCHASER:
INVESCO REALTY ADVISORS, INC., a Delaware
corporation
By:
--------------------------------------------
Name:
------------------------------------------
Title:
-----------------------------------------
<PAGE>
REINSTATEMENT OF, AND THIRD AMENDMENT
TO, REAL ESTATE SALE AGREEMENT
------------------------------
[Prentice Plaza, Englewood, Colorado]
THIS REINSTATEMENT OF, AND THIRD AMENDMENT TO, REAL ESTATE SALE AGREEMENT
(this "Amendment") is made as of the 11th day of May, 1999, by and between First
Capital Prentice Avenue Associates, an Illinois joint venture (the "Seller") and
Invesco Realty Advisors, Inc., a Delaware corporation ("Purchaser").
WHEREAS, Seller and Purchaser are parties to a Real Estate Sale Agreement
dated as of March 19, 1999 (as amended from time to time, the "Purchase
Agreement"). All capitalized terms which are used but not defined in this
Amendment shall have the same respective meanings ascribed to such terms in the
Purchase Agreement.
WHEREAS, Purchaser terminated the Purchase Agreement pursuant to Section
8(A) thereof in a letter dated April 13, 1999;
WHEREAS, the parties desire to reinstate and amend the Purchase Agreement
as more particularly set forth below.
NOW, THEREFORE, in consideration of the Purchase Agreement, the mutual
covenants and agreements therein and hereinafter set forth, and for other good
and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged by the parties hereto, Seller and Purchaser agree as follows:
1. Reinstatement. Seller and Purchaser agree that the Purchase Agreement,
as amended by this Amendment, is hereby reinstated and is in full force and
effect.
2. Purchase Price. The Purchase Price is hereby reduced to Twenty Two
Million One Hundred Thousand Dollars ($22,100,000).
3. Earnest Money. Within two business days after the date of this
Amendment, Purchaser shall deposit a total of Six Hundred Thousand Dollars
($600,000) as Earnest Money with the Escrowee, and the term "Earnest Money" as
used in the Purchase Agreement shall mean such $600,000, together with interest
earned thereon.
4. Waiver of Right of First Refusal. It shall be a condition precedent to
Purchaser's obligation to close the transactions contemplated by the Purchase
Agreement that either (i) Seller provides Purchaser with a letter from TCD North
Inc. ("TCD") waiving its right of first refusal ("Right of First Refusal") to
purchase the Property granted in that certain Warranty Deed dated September 30,
1983, recorded in Arapaho County, Colorado, in Book 3982, Page 154, with respect
to the Purchase Agreement, as modified by this Amendment, or (ii) TCD fails to
exercise its Right of First Refusal within thirty (30) days after receiving a
letter from Seller about the sale of the Property together with a copy of the
Purchase Agreement and this Amendment. In the event that TCD exercises the Right
of First Refusal, the Purchase Agreement shall automatically terminate and be of
no further force and effect, and Seller shall reimburse Purchaser for
Purchaser's out-of-pocket, third-party due diligence expenses up to $60,000.
5. Y2K Compliance. Seller has, to its knowledge, installed a Year 2000
compliant computer ("Y2K Computer") on the Property and shall permit Purchaser
to conduct Year 2000
<PAGE>
compliance inspections of the building systems of the Property and the Y2K
Computer ("Y2K Inspections") from and after the date of this Amendment,
provided, however, that such Y2K Inspections shall be conducted subject to the
provisions of Section 10(G) of the Purchase Agreement (except that all
references therein to inspections pursuant to Section 8(A) shall be deemed to
include the Y2K Inspections). If the Y2K Inspections reveal, and Purchaser
provides reasonable written estimates showing, that the cost of making the
building systems Y2K compliant will exceed $35,000, either Seller or Purchaser
shall have as its sole remedy the ability to terminate the Purchase Agreement by
written notice to the other party given before 3:00 PM (Chicago time) on May 17,
1999, in which event the Earnest Money shall be returned to Purchaser and the
Purchase Agreement shall be of no further force and effect except for the
provisions thereof that explicitly survive the termination of the Purchase
Agreement. Notwithstanding the foregoing, in no event shall the cost of making
the building systems Y2K compliant include either (i) the cost of making
services or equipment provided by vendors Y2K compliant, if such vendors are
responsible for making such equipment or services Y2K compliant, or (ii) the
cost of making a tenant's space Y2K compliant, if such tenant has agreed to
lease such space in its "as-is" condition. In the event that either (i) the cost
of making the building systems Y2K compliant is less than or equal to $35,000,
or (ii) the cost of making the building systems Y2K compliant is greater than
$35,000 but neither party elects to terminate the Purchase Agreement, then the
parties shall proceed to Closing and Purchaser shall purchase the Property in
its "AS IS, WHERE IS" condition, subject to ordinary wear and tear and the
provisions of Section 10(H) of the Purchase Agreement, without any reduction in
the Purchase Price or any credits given to Purchaser with respect to the Y2K
Inspections. If theY2K Inspections reveal that the Y2K Computer is not Y2K
compliant, Seller shall install a Y2K compliant computer at the Property on or
before Closing.
6. Inspection Period. The Inspection Period shall be deemed to have
expired as of 12:01 A.M on the date of this Amendment, and Purchaser is deemed
to have agreed to purchase the Property in its "AS IS, WHERE IS" condition,
subject to ordinary wear and tear, the provisions of Section 10(H) of the
Purchase Agreement and Section 5 of this Amendment.
7. Closing. The Closing shall occur on June 4, 1999.
8. Counterparts. This Amendment may be executed in any number of
counterparts and by the different parties hereto on separate counterparts, each
of which shall be deemed to be an original, and all of such counterparts shall
constitute one agreement. To facilitate execution of this Amendment, the parties
may execute and exchange by telephone facsimile counterparts of the signature
pages.
9. Effect of Amendment. Except as expressly amended hereby, the Purchase
Agreement shall remain in full force and effect and otherwise unmodified.
Nothing in this Amendment shall be construed as waiving any of Purchaser's
conditions precedent to Closing set forth in the Purchase Agreement or Paragraph
4 of this Amendment, other than those set forth in Section 8(A) of the Purchase
Agreement.
2
<PAGE>
IN WITNESS WHEREOF, Seller and Purchaser have executed and delivered this
Amendment as of the date first above written.
SELLER:
FIRST CAPITAL PRENTICE AVENUE ASSOCIATES, an
Illinois joint venture
By: First Capital Income Properties, Ltd. --
Series XI, an Illinois limited partnership,
joint venturer
By: First Capital Financial Corporation,
as General Partner
By:
----------------------------------
Name:
--------------------------------
Title:
-------------------------------
By: First Capital Income and Growth Fund --
Series XII, an Illinois limited
partnership, joint venturer
By: First Capital Financial Corporation,
as General Partner
By:
----------------------------------
Name:
--------------------------------
Title:
-------------------------------
PURCHASER:
INVESCO REALTY ADVISORS, INC., a Delaware
corporation
By:
--------------------------------------------
Name:
------------------------------------------
Title:
-----------------------------------------
3
<PAGE>
FOURTH AMENDMENT TO REAL ESTATE SALE AGREEMENT
[Prentice Plaza, Englewood, Colorado]
THIS FOURTH AMENDMENT TO REAL ESTATE SALE AGREEMENT (this "Amendment") is
made as of the 14th day of June, 1999, by and between First Capital Prentice
Avenue Associates, an Illinois joint venture ("Seller") and Gateway Canyon,
Inc., a California corporation ("Purchaser").
WHEREAS, Seller and Invesco Realty Advisors, Inc. ("Invesco") are parties
to a Real Estate Sale Agreement dated as of March 19, 1999 (as amended from time
to time, the "Purchase Agreement"), as amended by that certain (a) First
Amendment to Real Estate Sale Agreement dated as of March 29, 1999, (b) Second
Amendment to Real Estate Sale Agreement dated as of April 9, 1999, (c)
Reinstatement of, and Third Amendment to, Real Estate Sale Agreement dated as of
May 11, 1999, (d) side letter dated May 20, 1999, executed by Seller and
Purchaser, and (e) letter from Mary J. Garnett of Jones, Day, Reavis and Pogue
to Daniel Acosta of Rosenberg & Liebentritt, P.C., dated June 8, 1999. All
capitalized terms which are used but not defined in this Amendment shall have
the same respective meanings ascribed to such terms in the Purchase Agreement.
WHEREAS, Invesco assigned its rights, interests and obligations under the
Purchase Agreement to Purchaser pursuant to an Assignment and Assumption of Real
Estate Sale Agreement dated June 7, 1999.
WHEREAS, Seller and Purchaser desire to amend the Purchase Agreement as
more particularly set forth below.
NOW, THEREFORE, in consideration of the Purchase Agreement, the mutual
covenants and agreements therein and hereinafter set forth, and for other good
and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged by the parties hereto, Seller and Purchaser agree as follows:
1. Pre-Disclosure Right to Terminate. Purchaser shall have the right to
terminate the Purchase Agreement on or before June 18, 1999, with respect to the
Pre-Closing Disclosure made in that certain letter dated June 10, 1999, from
Seller's counsel to Purchaser's counsel.
2. Closing. The Closing is hereby extended until June 21, 1999.
3. Counterparts. This Amendment may be executed in any number of
counterparts and by the different parties hereto on separate counterparts, each
of which shall be deemed to be an original, and all of such counterparts shall
constitute one agreement. To facilitate execution of this Amendment, the parties
may execute and exchange by telephone facsimile counterparts of the signature
pages.
4. Effect of Amendment. Except as expressly amended hereby, the Purchase
Agreement shall remain in full force and effect and otherwise unmodified.
<PAGE>
IN WITNESS WHEREOF, Seller and Purchaser have executed and delivered this
Amendment as of the date first above written.
SELLER:
FIRST CAPITAL PRENTICE AVENUE ASSOCIATES, an
Illinois joint venture
By: First Capital Income Properties, Ltd. --
Series XI, an Illinois limited partnership,
joint venturer
By: First Capital Financial Corporation,
as General Partner
By:
----------------------------------
Name:
--------------------------------
Title:
-------------------------------
By: First Capital Income and Growth Fund --
Series XII, an Illinois limited
partnership, joint venturer
By: First Capital Financial Corporation,
as General Partner
By:
----------------------------------
Name:
--------------------------------
Title:
-------------------------------
PURCHASER:
GATEWAY CANYON, INC., a California corporation
By:
--------------------------------------------
Name:
------------------------------------------
Title:
-----------------------------------------
2
<PAGE>
4. Escrow for TI Allowance and Expansion Space Rent. At Closing, Seller
shall escrow a total of $136,605.52 with the Title Company for a period of one
(1) year after the date of Closing, which escrow shall be held and disbursed by
Title Company in accordance with an escrow agreement by and between Title
Company, Seller and Purchaser. Said escrow agreement shall provide among other
things for (a) monthly disbursements in the amount of $2,114.13, so long as
Avatech Solutions of Colorado, Inc., its successors or assigns (collectively,
"Avatech") do not pay rent on Suite 314 of the Property (the "Expansion Space")
on or before the fifteenth date of each calendar month, (b) disbursements to
Purchaser not to exceed $111,236 for any money spent by Purchaser on tenant
improvements for the Expansion Space, provided Purchaser provides evidence of
amounts spent on such tenant improvements, and (c) disbursement to Seller one
(1) year after the Closing Date of any amounts remaining in the escrow.
3
<PAGE>
FIFTH AMENDMENT TO REAL ESTATE SALE AGREEMENT
[Prentice Plaza, Englewood, Colorado]
THIS FIFTH AMENDMENT TO REAL ESTATE SALE AGREEMENT (this "Amendment") is
made as of the 18th day of June, 1999, by and between First Capital Prentice
Avenue Associates, an Illinois joint venture ("Seller") and Gateway Canyon,
Inc., a California corporation ("Purchaser").
WHEREAS, Seller and Invesco Realty Advisors, Inc. ("Invesco") are parties
to a Real Estate Sale Agreement dated as of March 19, 1999 (as amended from time
to time, the "Purchase Agreement"), as amended by that certain (a) First
Amendment to Real Estate Sale Agreement dated as of March 29, 1999, (b) Second
Amendment to Real Estate Sale Agreement dated as of April 9, 1999, (c)
Reinstatement of, and Third Amendment to, Real Estate Sale Agreement dated as of
May 11, 1999, (d) side letter dated May 20, 1999, executed by Seller and
Purchaser, (e) letter from Mary J. Garnett of Jones, Day, Reavis and Pogue to
Daniel Acosta of Rosenberg & Liebentritt, P.C., dated June 8, 1999, and (f)
Fourth Amendment to Real Estate Sale Agreement dated June 14, 1999. All
capitalized terms which are used but not defined in this Amendment shall have
the same respective meanings ascribed to such terms in the Purchase Agreement.
WHEREAS, Invesco assigned its rights, interests and obligations under the
Purchase Agreement to Purchaser pursuant to an Assignment and Assumption of Real
Estate Sale Agreement dated June 7, 1999.
WHEREAS, Seller and Purchaser desire to amend the Purchase Agreement as
more particularly set forth below.
NOW, THEREFORE, in consideration of the Purchase Agreement, the mutual
covenants and agreements therein and hereinafter set forth, and for other good
and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged by the parties hereto, Seller and Purchaser agree as follows:
1. Waiver of Conditions Precedent. Purchaser hereby (i) acknowledges that
the Required Estoppel Certificates have been delivered as required under Section
8(B) of the Purchase Agreement, (ii) waives its right to terminate the Purchase
Agreement with respect to the Pre-Closing Disclosure made in that certain letter
dated June 10, 1999, from Seller's counsel to Purchaser's counsel, and (iii)
acknowledges that the condition precedent contained in Section 8(G) of the
Purchase Agreement has been satisfied.
2. Closing. The Closing is hereby extended until the earlier of (i) June
30, 1999, and (ii) two (2) business days after the full execution and receipt by
Purchaser of that certain Fourth Amendment by and between Seller and Federal
Express Corporation and that certain Office Lease Agreement by and between
Seller and Amdahl Corporation, in the forms previously presented to Purchaser.
3. Condition Precedent. It shall be a condition precedent to Purchaser's
obligation to close pursuant to the Purchase Agreement that Seller deliver to
Purchaser on or before June 28, 1999, a fully-executed (i) Fourth Amendment by
and between Seller and Federal Express Corporation, in the form previously
presented to Purchaser and (ii) Office Lease Agreement by and between Seller and
Amdahl Corporation, in the form previously presented to Purchaser. If
<PAGE>
the condition precedent set forth in the preceding sentence is not satisfied,
Purchaser shall have the right to terminate the Purchase Agreement on or before
June 29, 1999, by written notice to Seller, in which event the Earnest Money
shall be returned to Purchaser, the Purchase Agreement shall be null and void
and neither party shall have any further rights or obligations under the
Purchase Agreement except for any rights and obligations that explicitly survive
the termination of the Purchase Agreement.
4. Escrow for Avatech Expansion Space Rent. At Closing, Seller shall
deposit a total of $25,369.52 in escrow ("Avatech Escrow") with the Title
Company for a period of one (1) year after the date of Closing ("Escrow Term").
The Avatech Escrow shall be held and disbursed by Title Company in accordance
with an escrow agreement by and among Title Company, Seller and Purchaser and
mutually acceptable to all such parties. Seller shall pay all escrow costs
charged by the Title Company for the Avatech Escrow. In the event that Purchaser
does not receive at least $2,114.13 ("Monthly Rental Amount') in rental income
for each calendar month during the Escrow Term for Suite 314 of the Property
(the "Avatech Expansion Space") on or before the fifteenth day of each such
calendar month, Purchaser shall be entitled to a disbursement from the Avatech
Escrow in the amount of the difference between the Monthly Rental Amount and any
rental income received by Purchaser during such calendar month for the Avatech
Expansion Space. At the end of the Escrow Term, any amounts remaining in the
Avatech Escrow shall be disbursed to Seller. In the event that Purchaser
receives any rental income for the Avatech Expansion Space from the period
beginning on the date of Closing and ending six (6) months after the expiration
of the Escrow Term and such rental income is applicable to any period during the
Escrow Term, Purchaser agrees that if the sum of such rental income and the
total disbursements received by Purchaser from the Avatech Escrow exceed
$25,369.52, Purchaser shall remit the excess to Seller.
5. Avatech Rental Delinquency. The parties agree that Seller may declare
Avatech Solutions of Colorado, Inc. ("Avatech") in default of its lease for its
failure to pay rent and other amounts due under such lease with respect to the
Avatech Expansion Space. Immediately after Closing, Seller, at its option, may
pursue its remedies against Avatech, including the commencement of litigation
and other proceedings (but Seller shall not seek to evict Avatech or terminate
Avatech's lease). After Closing, Purchaser may pursue any and all remedies it
may have against Avatech for any defaults by Avatech under its lease after
Closing (including, terminating Avatech's lease). Seller and Purchaser agree to
reasonably cooperate with each other in their pursuit of their respective
remedies against Avatech.
6. Avatech Tenant Improvement Allowance. Seller and Purchaser acknowledge
that Avatech is entitled to a tenant improvement allowance in the amount of
$116,000 ("Improvement Allowance") under its lease and that at Closing Purchaser
shall receive a credit for the Improvement Allowance less any amounts previously
spent by Seller (the aggregate amount of which shall not exceed $5,000) with
respect to the Improvement Allowance. Seller shall provide receipts to Purchaser
to document all amounts previously spent by Seller with respect to the
Improvement Allowance.
7. Counterparts. This Amendment may be executed in any number of
counterparts and by the different parties hereto on separate counterparts, each
of which shall be deemed to be an original, and all of such counterparts shall
constitute one agreement. To facilitate execution of this Amendment, the parties
may execute and exchange by telephone facsimile counterparts of the signature
pages.
2
<PAGE>
8. Effect of Amendment. Except as expressly amended hereby, the Purchase
Agreement shall remain in full force and effect and otherwise unmodified.
Nothing in this Amendment shall be construed as waiving any of Purchaser's
conditions precedent to Closing set forth in the Purchase Agreement or Paragraph
3 of this Amendment, other than as set forth in Paragraph 1 of this Amendment.
3
<PAGE>
IN WITNESS WHEREOF, Seller and Purchaser have executed and delivered this
Amendment as of the date first above written.
SELLER:
FIRST CAPITAL PRENTICE AVENUE ASSOCIATES, an
Illinois joint venture
By: First Capital Income Properties, Ltd. - Series
XI, an Illinois limited partnership, joint
venturer
By: First Capital Financial Corporation, as
General Partner
By:______________________________________
Name:____________________________________
Title:___________________________________
By: First Capital Income and Growth Fund - Series
XII, an Illinois limited partnership, joint
venturer
By: First Capital Financial Corporation, as
General Partner
By:______________________________________
Name:____________________________________
Title:___________________________________
PURCHASER:
GATEWAY CANYON, INC., a California corporation
By:______________________________________________
Name:____________________________________________
Title:___________________________________________
4
<PAGE>
SIXTH AMENDMENT TO REAL ESTATE SALE AGREEMENT
[Prentice Plaza, Englewood, Colorado]
THIS SIXTH AMENDMENT TO REAL ESTATE SALE AGREEMENT (this "Amendment") is
made as of the 18th day of June, 1999, by and between First Capital Prentice
Avenue Associates, an Illinois joint venture ("Seller") and Gateway Canyon,
Inc., a California corporation ("Purchaser").
WHEREAS, Seller and Invesco Realty Advisors, Inc. ("Invesco") are parties
to a Real Estate Sale Agreement dated as of March 19, 1999 (as amended from time
to time, the "Purchase Agreement"), as amended by that certain (a) First
Amendment to Real Estate Sale Agreement dated as of March 29, 1999, (b) Second
Amendment to Real Estate Sale Agreement dated as of April 9, 1999, (c)
Reinstatement of, and Third Amendment to, Real Estate Sale Agreement dated as of
May 11, 1999, (d) side letter dated May 20, 1999, executed by Seller and
Purchaser, (e) letter from Mary J. Garnett of Jones, Day, Reavis and Pogue to
Daniel Acosta of Rosenberg & Liebentritt, P.C., dated June 8, 1999, (f) Fourth
Amendment to Real Estate Sale Agreement dated June 14, 1999, and (g) Fifth
Amendment to Real Estate Sale Agreement dated June 18, 1999 ("Fifth Amendment").
All capitalized terms which are used but not defined in this Amendment shall
have the same respective meanings ascribed to such terms in the Purchase
Agreement.
WHEREAS, Invesco assigned its rights, interests and obligations under the
Purchase Agreement to Purchaser pursuant to an Assignment and Assumption of Real
Estate Sale Agreement dated June 7, 1999.
WHEREAS, Seller and Purchaser desire to amend the Purchase Agreement as
more particularly set forth below.
NOW, THEREFORE, in consideration of the Purchase Agreement, the mutual
covenants and agreements therein and hereinafter set forth, and for other good
and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged by the parties hereto, Seller and Purchaser agree as follows:
1. Waiver of Condition Precedent. Purchaser hereby acknowledges that the
Office Lease Agreement by and between Seller and Amdahl Corporation has been
fully executed and delivered to Purchaser, and Purchaser hereby waives its
condition precedent with respect to such Office Lease Agreement, as contained in
Section 3 of the Fifth Amendment.
2. Closing. The Closing is hereby extended until the earlier of (i) July
9, 1999, and (ii) two (2) business days after the full execution and receipt by
Purchaser of that certain Fourth Amendment by and between Seller and Federal
Express Corporation, in the form previously presented to Purchaser.
3. Condition Precedent. It shall be a condition precedent to Purchaser's
obligation to close pursuant to the Purchase Agreement that Seller deliver to
Purchaser on or before July 7, 1999, a fully-executed Fourth Amendment by and
between Seller and Federal Express Corporation, in the form previously presented
to Purchaser. If the condition precedent set forth in the preceding sentence is
not satisfied, Purchaser shall have the right to terminate the Purchase
Agreement on or before July 8, 1999, by written notice to Seller, in which event
the Earnest Money shall be returned to Purchaser, the Purchase Agreement shall
be null and void
<PAGE>
and neither party shall have any further rights or obligations under the
Purchase Agreement except for any rights and obligations that explicitly survive
the termination of the Purchase Agreement.
4. Counterparts. This Amendment may be executed in any number of
counterparts and by the different parties hereto on separate counterparts, each
of which shall be deemed to be an original, and all of such counterparts shall
constitute one agreement. To facilitate execution of this Amendment, the parties
may execute and exchange by telephone facsimile counterparts of the signature
pages.
5. Effect of Amendment. Except as expressly amended hereby, the Purchase
Agreement shall remain in full force and effect and otherwise unmodified.
Nothing in this Amendment shall be construed as waiving any of Purchaser's
conditions precedent to Closing set forth in the Purchase Agreement or Paragraph
3 of this Amendment, other than as set forth in Paragraph 1 of this Amendment.
2
<PAGE>
IN WITNESS WHEREOF, Seller and Purchaser have executed and delivered this
Amendment as of the date first above written.
SELLER:
FIRST CAPITAL PRENTICE AVENUE ASSOCIATES, an
Illinois joint venture
By: First Capital Income Properties, Ltd. - Series
XI, an Illinois limited partnership, joint
venturer
By: First Capital Financial Corporation, as
General Partner
By:______________________________________
Name:____________________________________
Title:___________________________________
By: First Capital Income and Growth Fund - Series
XII, an Illinois limited partnership, joint
venturer
By: First Capital Financial Corporation, as
General Partner
By:______________________________________
Name:____________________________________
Title:___________________________________
PURCHASER:
GATEWAY CANYON, INC., a California corporation
By:______________________________________________
Name:____________________________________________
Title:___________________________________________
3
<PAGE>
SEVENTH AMENDMENT TO REAL ESTATE SALE AGREEMENT
[Prentice Plaza, Englewood, Colorado]
THIS SEVENTH AMENDMENT TO REAL ESTATE SALE AGREEMENT (this "Amendment") is
made as of the 8th day of July, 1999, by and between First Capital Prentice
Avenue Associates, an Illinois joint venture ("Seller") and Gateway Canyon,
Inc., a California corporation ("Purchaser").
WHEREAS, Seller and Invesco Realty Advisors, Inc. ("Invesco") are parties
to a Real Estate Sale Agreement dated as of March 19, 1999 (as amended from time
to time, the "Purchase Agreement"), as amended by that certain (a) First
Amendment to Real Estate Sale Agreement dated as of March 29, 1999, (b) Second
Amendment to Real Estate Sale Agreement dated as of April 9, 1999, (c)
Reinstatement of, and Third Amendment to, Real Estate Sale Agreement dated as of
May 11, 1999, (d) side letter dated May 20, 1999, executed by Seller and
Purchaser, (e) letter from Mary J. Garnett of Jones, Day, Reavis and Pogue to
Daniel Acosta of Rosenberg & Liebentritt, P.C., dated June 8, 1999, (f) Fourth
Amendment to Real Estate Sale Agreement dated June 14, 1999, (g) Fifth Amendment
to Real Estate Sale Agreement dated June 18, 1999, and (h) Sixth Amendment to
Real Estate Sale Agreement dated June 18, 1999 ("Sixth Amendment"). All
capitalized terms which are used but not defined in this Amendment shall have
the same respective meanings ascribed to such terms in the Purchase Agreement.
WHEREAS, Invesco assigned its rights, interests and obligations under the
Purchase Agreement to Purchaser pursuant to an Assignment and Assumption of Real
Estate Sale Agreement dated June 7, 1999.
WHEREAS, Seller and Purchaser desire to amend the Purchase Agreement as
more particularly set forth below.
NOW, THEREFORE, in consideration of the Purchase Agreement, the mutual
covenants and agreements therein and hereinafter set forth, and for other good
and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged by the parties hereto, Seller and Purchaser agree as follows:
1. Waiver of Condition Precedent. Purchaser hereby acknowledges that the
Fourth Amendment by and between Seller and Federal Express Corporation ("FedEx
Fourth Amendment") has been fully executed and delivered to Purchaser, and
Purchaser hereby waives its condition precedent with respect to such FedEx
Fourth Amendment, as contained in Section 3 of the Sixth Amendment.
2. Closing. The Closing is hereby extended until July 12, 1999.
3. Credit at Closing. At Closing, Seller shall give Purchaser a credit in
the amount of $25,000 to compensate Purchaser for the loss of anticipated
parking income under the FedEx Fourth Amendment.
4. Counterparts. This Amendment may be executed in any number of
counterparts and by the different parties hereto on separate counterparts, each
of which shall be deemed to be an original, and all of such counterparts shall
constitute one agreement. To facilitate
<PAGE>
execution of this Amendment, the parties may execute and exchange by telephone
facsimile counterparts of the signature pages.
5. Effect of Amendment. Except as expressly amended hereby, the Purchase
Agreement shall remain in full force and effect and otherwise unmodified.
Nothing in this Amendment shall be construed as waiving any of Purchaser's
conditions precedent to Closing set forth in the Purchase Agreement, other than
as set forth in Paragraph 1 of this Amendment.
2
<PAGE>
IN WITNESS WHEREOF, Seller and Purchaser have executed and delivered this
Amendment as of the date first above written.
SELLER:
FIRST CAPITAL PRENTICE AVENUE ASSOCIATES, an
Illinois joint venture
By: First Capital Income Properties, Ltd. --
Series XI, an Illinois limited partnership,
joint venturer
By: First Capital Financial Corporation,
as General Partner
By:
----------------------------------
Name:
--------------------------------
Title:
-------------------------------
By: First Capital Income and Growth Fund --
Series XII, an Illinois limited
partnership, joint venturer
By: First Capital Financial Corporation,
as General Partner
By:
----------------------------------
Name:
--------------------------------
Title:
-------------------------------
PURCHASER:
GATEWAY CANYON, INC., a California corporation
By:
--------------------------------------------
Name:
------------------------------------------
Title:
-----------------------------------------
3
