Securities and Exchange Commission
450 Fifth Street, N.W.
Judiciary Plaza
Washington, D.C. 20549
Re: Carlyle Income Plus, Ltd.
Commission File No. 000-16975
Form 8-K
Gentlemen:
Transmitted, for the above-captioned registrant, is the
electronically filed executed copy of registrant's current report
on Form 8-K dated December 20, 1996
Thank you.
Very truly yours,
Carlyle Income Plus, Ltd.
By: JMB Realty Corporation
(Corporate General Partner)
By: GAILEN J. HULL
Gailen J. Hull, Senior Vice President
and Principal Accounting Officer
Enclosures
<PAGE>
FORM 8-K
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
CURRENT REPORT
Pursuant to Section 13 or 15 (d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported):
December 12, 1996
CARLYLE INCOME PLUS, LTD.
--------------------------------
(Exact name of registrant as specified in its charter)
Illinois 000-16975 36-3439532
- - ----------------- --------------- ----------
(State of Organization) (Commission) (IRS Employer
File Number) Identification
Number)
900 N. Michigan Avenue, Chicago, Illinois 60611
-------------------------------------------------
(Address of principal executive office)
Registrant's telephone number, including area code: (312)
- - ----------------------------------------------------------
915-1987.
- - -------<PAGE>
RIVERVIEW PLAZA SHOPPING CENTER
CHICAGO, ILLINOIS
-------------------
ITEM 2. ACQUISITION OR DISPOSITION OF ASSETS. On December
12, 1996, Carlyle Income Plus, Ltd. (the "Partnership"), an
Illinois limited partnership, sold the land and related
improvements known as Riverview Plaza Shopping Center (the
"Property"), an approximately 139,300-square-foot shopping
center located on approximately 10.1 acres in Chicago, Cook
County, Illinois. The purchaser, AMB Retail Income Fund, Inc.,
a Maryland corporation, is not affiliated with the Partnership
or its General Partners and the sale price was determined by
arm's-length negotiations.
The sale price of the land and improvements was $12,720,000
and was paid in cash at closing (net of selling costs and
prorations). The Property was 100% occupied at the date of
sale. The sale resulted in a gain to the Partnership of
approximately $1,150,000 for financial reporting purposes. The
Property was classified as held for sale as of April 1, 1996 and
therefore has not been subject to continued depreciation as of
that date for financial reporting purposes. In addition, the
Partnership expects to report a gain on sale of approximately
$950,000 for Federal income tax reporting purposes in 1996.<PAGE>
The Partnership Agreement provides that distributions of
sale proceeds are to be initially allocated 99% to the Limited
Partners and 1% to the General Partners. However, upon the
completion of the liquidation of the Partnership and final
distribution of all Partnership funds, all previous
distributions of sale proceeds to the General Partners shall be
repaid to the Partnership to the extent that the Limited
Partners have not received sale proceeds equal to their initial
capital investment plus a 6% return on their investment (as
defined). After receipt by the Limited Partners of such
preferred return, further distributions of sale proceeds are to
be allocated to the General Partners until the General Partners
have received distributions in an amount equal to 3% of the
aggregate selling prices of all properties sold, with the
remaining balance to be distributed 85% to the Limited Partners
and 15% to the General Partners; provided, however, that such
3% and 15% of sale proceeds distributable to the General
Partners are subordinate to the Limited Partners' receipt of a
9% return on their investment. Since the Limited Partners,
without a dramatic improvement in market conditions, are not
projected to receive an amount equal to their initial
contributed capital from the aggregate sale proceeds of all of
the Partnership's investment properties, the General Partners
will currently defer their 1% share in the distributions of
proceeds from this sale at this time.
ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS
(a) Financial Statements. Not Applicable
(b) Pro Forma Financial Information- Narrative.
As a result of the sale of the Property, beyond the date of
sale there will be no further rental and other income, property
operating expenses and depreciation recorded for the Property in
the financial statements of the Partnership, which for the
Partnership's most recent fiscal year (the year ended December
31, 1995) were approximately $2,448,000 $1,130,000 and
$424,000, respectively. Rental and other income, property
operating expenses and depreciation for the Property were
approximately $1,976,000 $920,000 and $106,000, respectively,
for the nine months ended September 30, 1996. Also, as a result
of the sale of the Property, there are no further assets and
liabilities related to the Property, which at September 30, 1996
consisted of land and buildings and improvements (net of
accumulated depreciation) of approximately $11,244,000; cash and
other current assets of approximately $1,641,000; accrued rents
receivable and other noncurrent assets of approximately
$233,000; accrued real estate taxes and other current
liabilities of approximately $758,000, and tenant security
deposits of approximately $13,000. The remaining operations of
the Partnership will consist primarily of the operations of the
Partnership's remaining owned investment properties, the Carson
and Costa Mesa Industrial Parks, the Rancho Franciscan
Apartments, the Sunrise Town Center shopping center and (through
a joint venture) the Landings Shopping Center.
(c) Exhibits.
10.1 Real Property Purchase Agreement between
Carlyle Income Plus, Ltd. and AMB Retail Income Fund, Inc.,
dated November 19, 1996, and exhibits thereto.
10.2 First Amendment to agreement for purchase
and sale of real estate and related property between Carlyle
Income Plus, Ltd. and AMB Retail Income Fund, Inc., dated
12/06/96.
10.3 Second Amendement to agreement for purchase
and sale of real estate and related property between Carlyle
Income Plus, Ltd. and AMB Retail Income Fund, Inc., dated
12/11/96.<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of
1934, the Registrant has duly caused this report to be signed on
its behalf by the undersigned thereunto duly authorized.
CARLYLE INCOME PLUS, LTD.
By: JMB Realty Corporation
Corporate General partner
By: __________________________________
GAILEN J. HULL
Gailen J. Hull
Senior Vice President and
Principal Accounting Officer
Date: December 20, 1996
EXHIB. 10.1
AGREEMENT FOR PURCHASE AND SALE
OF REAL ESTATE AND RELATED PROPERTY
THIS AGREEMENT FOR PURCHASE AND SALE OF REAL ESTATE
AND RELATED PROPERTY ("Agreement") is made and entered into as
of the 19th day of November, 1996 (which is the date of full
execution hereof by Seller and Purchaser), by and between
CARLYLE INCOME PLUS, LTD., an Illinois limited partnership
("Seller"), and AMB RETAIL INCOME FUND, INC., a Maryland
corporation ("Purchaser").
RECITALS
A. Seller holds title to the improved real property
commonly known as Riverview Plaza Shopping Center, the land
component of which is more particularly described on Exhibit A
attached hereto and made a part hereof (the "Shopping Center").
B. Seller has previously made available to
Purchaser the following items (collectively called the
"Information Package") in connection with the Shopping Center:
(i) copies of all service contracts and other agreements
currently in effect, which are more particularly identified on
Exhibit O hereto ("Service Contracts"), (ii) copies of real
estate tax bills for the years 1993, 1994 and the first
installment of 1995, (iii) copies of any warranties and permits
currently in effect and in the possession of Seller ("Permits
and Warranties"), (iv) statements of income and certain
expenses for the years 1994, 1995, and 1996 (to date) ("Income
Statements"), (v) copies of the plans and specifications for
the Improvements (as hereinafter defined) in the possession of
Seller ("Plans"), (vi) current rent roll with respect to all
tenants ("Tenants") occupying space in the Improvements ("Rent
Roll"), a copy of which is attached hereto as Exhibit L, (vii)
copies of any existing environmental reports in the possession
of Seller ("Existing Environmental Reports", which, for
purposes of this Agreement, shall include all environmental
reports prepared by or for or in the possession of Purchaser),
which are more particularly described in Exhibit G hereto,
(viii) copies of the existing surveys ("Existing Surveys"),
(ix) and such additional documents and instruments as set forth
in Exhibit P hereto, to the extent in Seller's possession or
control.
C. Seller desires to sell, and Purchaser desires to
acquire, the Shopping Center and certain related property on an
"AS IS, WHERE IS" basis, without any conditions,
representations or warranties of any kind, except as
specifically and expressly set forth in this Agreement.
NOW, THEREFORE, in consideration of and in reliance
upon the above Recitals (which are incorporated in and made a
part of this Agreement), and the mutual covenants, promises and
undertakings set forth in this Agreement, and other good and
valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, Seller and Purchaser agree as follows:
AGREEMENTS
1. PURCHASE AND SALE OF PROPERTY.
A. Seller agrees to sell and convey and Purchaser agrees
to purchase and accept all of Seller's right, title and
interest, if any, in and to the following described property
(all of which is hereinafter collectively referred to as the
"Property"):
1. Certain land ("Land") legally described in
Exhibit A hereto and made a part hereof, together with all
rights, privileges and easements appurtenant to the Land,
including, without limitation, all minerals, oil, gas and
other hydrocarbon substances on and under the Land, as
well as all development rights, air rights, water, water
rights, riparian rights and water stock relating to the
Land and any rights-of-way or other appurtenances used in
connection with the beneficial use and enjoyment of the
Land and all of Seller's right, title and interest in and
to all road and alleys adjoining or servicing the Land.
2. The Shopping Center, and all other improvements
and fixtures now situated on the Land and owned by Seller,
including all apparatus, equipment and appliances used in
connection with the operation or occupancy of the Land,
such as heating and air conditioning systems and equipment
and facilities used to provide any utility, refrigeration,
ventilation, garbage disposal, or other services on the
Land (collectively, the "Improvements").
3. Current occupancy leases affecting the
Improvements or any part thereof ("Leases"), the Service
Contracts, the Plans, the Permits and Warranties, rights
to use any trade name now used in connection with the
Property, security deposits and prepaid rent under the
Leases (to the extent not prorated pursuant to Section 9
hereof), guarantees of the Leases, utility contracts, and
copies of any existing books, records and documents and
any intangible property (other than accounts, accounts
receivable and proprietary computer software) desired by
Purchaser pertaining to the operation, maintenance, repair
and leasing of the Property in the possession of Seller or
Property Manager.
The Land and Improvements are sometimes together referred to
herein as the "Premises."
B. Except for the express representations and warranties
of Seller set forth in Section 8.A of this Agreement, the
Property is being sold in an "AS IS-WHERE IS" condition and
with "ALL FAULTS" as of the date of this Agreement. Except as
specifically and expressly set forth in this Agreement, no
promises, representations or warranties have been made or are
made and no responsibility has been or is assumed by Seller,
the direct or indirect partners and affiliates of Seller or
their respective officers, directors, trustees, advisors,
agents, shareholders, employees or contractors, or by any
officer, director, shareholder, beneficiary, affiliate, person,
firm, agent or representative acting or purporting to act on
behalf of Seller as to (i) the condition or state of repair or
utility of the Property, (ii) the value, expense of operation
or income potential thereof, or (iii) any other fact or
condition which has or could affect the Property or the
condition, repair, value, expense of operation or income
potential of the Property or any portion thereof, including,
without limitation, with respect to any environmental matters
which could affect the Property. It is the intent of the
parties that the Purchaser review and approve, on or before the
expiration of the Due Diligence Period, the Information Package
and all matters pertaining to the Property to its own
satisfaction, including, without limitation, its satisfaction
with the environmental condition of the Property, and
compliance with the Americans with Disabilities Act. Purchaser
agrees that by waiving or approving the Conditions Precedent
set forth in Sections 5.A through 5.E set forth below,
Purchaser shall have approved the Information Package and all
matters pertaining to the Property to its own satisfaction and,
except as expressly set forth in this Agreement, Seller shall
have no liability for the accuracy of any matters, facts or
data reflected in the Information Package. The parties
acknowledge and agree that all understandings and agreements
heretofore made between them or their respective agents or
representatives regarding the purchase and sale of the Property
are merged into this Agreement and the Exhibits attached
hereto, which alone fully and completely express their
agreement and that neither party is relying upon any statement,
promise or representation by the other unless such statement,
promise or representation is specifically and expressly set
forth in this Agreement or the Exhibits attached hereto.
2. PURCHASE PRICE.
The purchase price ("Purchase Price") which Seller agrees
to accept and Purchaser agrees to pay for the Property is
TWELVE MILLION SEVEN HUNDRED TWENTY THOUSAND DOLLARS
($12,720,000) U.S. The Purchase Price is to be paid as
follows:
A. Upon execution of this Agreement by Purchaser,
Purchaser shall make an earnest money deposit of ONE HUNDRED
FIFTY THOUSAND DOLLARS ($150,000) U.S. ("Deposit"). The
Deposit shall be held in escrow by Commonwealth Land Title
Insurance Company (sometimes called the "Deposit Escrowee or
the "Title Company") in an interest bearing account pursuant to
the terms of a joint order escrow agreement in the form of
Exhibit B attached hereto and made a part hereof ("Deposit
Escrow Agreement"). Any interest earned on the Deposit shall
be considered part of the Deposit. Except as otherwise
specifically provided in this Agreement, the Deposit shall be
paid to Seller and applied to the Purchase Price at Closing (as
hereinafter defined).
B. On the Closing Date (as hereinafter defined),
Purchaser shall pay to the Deposit Escrowee an amount equal to
the Purchase Price less the Deposit, plus or minus prorations
as provided herein, via wire transfer in immediately available
U.S. funds to a bank account designated by the Deposit Escrowee
("Cash Balance"). Seller acknowledges and agrees that
Purchaser may be required to withhold a portion of the Purchase
Price pursuant to Section 1445 of the United States Internal
Revenue Code ("Federal Code"), together with any regulations
now or hereafter promulgated thereunder, are sometimes
collectively referred to below as the "Federal Withholding
Provisions.") Any amount properly so withheld by Purchaser (as
described in Section 10 below) shall be deemed to have been
paid by Purchaser as part of the Purchase Price, and Seller's
obligation to consummate the transaction contemplated herein
shall not be excused, reduced, terminated or otherwise affected
thereby. Notwithstanding the foregoing, however, if Seller
delivers at Closing Certificates in the form attached hereto as
Exhibit H (the "Federal Withholding Certificate"), no portion
of the Purchase Price shall be withheld hereunder.
3. PRIOR TO CLOSING.
During the period from the date of Seller's execution of
this Agreement until Closing or the earlier termination of this
Agreement, Seller shall:
A. Except as otherwise provided in this Agreement,
operate the Property through its property manager or managers
("Property Manager"), in the normal course of business and,
through the Property Manager, cause the Property to be kept in
its existing condition and state of repair, ordinary wear and
tear and loss due to fire or other casualty excepted, subject
to Section 11 below.
B. Neither enter nor permit the Property Manager to
enter into any new Lease (or extensions, expansions or
modifications of existing Leases) without the prior written
consent of Purchaser, which consent shall not be unreasonably
withheld, denied or delayed. In the event Seller desires to
enter into a new lease (or extensions, expansions, or
modifications of existing Leases) of any portion of the
Premises prior to Closing, Seller shall submit to Purchaser a
lease proposal package describing the economic terms of the
proposed new lease (or extensions, expansions, or modifications
of existing Leases) ("Lease Proposal"). The Lease Proposal
shall consist of financial information, if any, relating to the
proposed tenant, and a written summary of the material lease
terms including, without limitation, the following information
(if applicable): (i) rent (including a description of rent
inducements, if any), (ii) lease term, (iii) security deposit,
(iv) leasing commissions, (v) moving allowance, and (vi) tenant
improvement allowance. Purchaser shall have two (2) Business
Days after its receipt of the Lease Proposal to consent to the
terms of the Lease Proposal; provided, however, that unless a
reasonable basis for refusing to give such consent is
communicated to Seller in writing within such two (2) Business
Day period, Purchaser shall be deemed to have consented to the
terms of the Lease Proposal ("Approved Lease Proposal").
Seller agrees that it shall be a reasonable basis for refusing
to consent to a Lease Proposal if Purchaser reasonably fails to
approve the costs to be expended by the landlord in connection
therewith (including tenant improvement costs). Prior to
executing any tenant lease (or extensions, expansions, or
modifications of existing Leases) prepared in accordance with
the terms and conditions described in an Approved Lease
Proposal, Seller shall submit a draft of such proposed new
lease to Purchaser for Purchaser's approval ("Lease Draft
Proposal"). Purchaser shall have three (3) Business Days
after its receipt of the Lease Draft Proposal to consent to the
terms of the Lease Draft Proposal; provided, however, that
unless a reasonable basis for refusing to give such consent is
communicated to Seller in writing within such three (3)
Business Day period, Purchaser shall be deemed to have
consented to the form of the Lease Draft Proposal and Seller
may enter into a lease (or extensions, expansions, or
modifications of existing Leases ) with such proposed tenant in
accordance with the Lease Proposal and the Lease Draft
Proposal. Purchaser shall bear all costs in connection with
new Leases (or extensions and expansions of existing Leases)
entered into pursuant to this Section 3.B (including leasing
commissions, tenant improvement costs, moving costs,
engineering fees and other tenant incentives), provided that
the transaction contemplated hereby is consummated.
C. Neither enter nor permit the Property Manager to
enter into any new Service Contract or extend, renew or
materially modify or amend any existing Service Contract,
except those that are cancelable on not more than thirty (30)
days' written notice.
D. Keep the Improvements insured against fire or other
hazards covered by extended coverage endorsement and
comprehensive public liability insurance against claims for
bodily injury, death and property damage occurring in, on or
about the Premises on terms no less favorable than currently
existing.
E. Not sell, mortgage, pledge, hypothecate or otherwise
transfer or dispose of all or any part of the Property or any
interest therein, except that Seller may enter into new Leases
or extensions, expansions or modifications of existing Leases
pursuant to Section 3.B above, and except for depletions and
replacements of Personal Property in the ordinary course of the
operation, repair and maintenance of the Land and Improvements
and except as a result of the exercise of a condemnation (but
subject to Section 11 hereof).
F. Promptly give written notice to Purchaser upon
obtaining knowledge of the occurrence of any event which
affects the truth or accuracy of any representations or
warranties made by Seller in this Agreement or which would make
any information contained in the Information Package misleading
or untrue in any material respect when taken as a whole.
4. DUE DILIGENCE AND INSPECTION OF THE PROPERTY.
Purchaser, or its designees, shall commence due diligence
with respect to the Property promptly upon Seller's execution
hereof, and the due diligence period shall expire on
November 20, 1996 (the "Due Diligence Period").
Notwithstanding anything in this Agreement to the contrary,
Purchaser shall have the right to terminate this Agreement at
any time during the Due Diligence Period by giving written
notice of termination to Seller on or before the expiration of
the Due Diligence Period. Failure by Purchaser to give written
notice on or before the expiration of the Due Diligence Period
that Purchaser approves the Conditions Precedent set forth in
Sections 5.B through 5.E set forth below shall mean that
Purchaser has failed to approve such Conditions Precedent and
this Agreement shall automatically terminate. In the event
Purchaser this Agreement terminates pursuant to this Section 4
or due to the failure of a Condition Precedent pursuant to
Section 5 of this Agreement, then, the Deposit plus interest
accrued thereon shall be immediately returned to Purchaser as
its sole and exclusive remedy and neither party shall have any
further rights or obligations hereunder except for those
obligations that, by their express terms, survive the
termination or expiration of this Agreement. This Section is
subject to, and shall not serve to modify or limit, any right
or remedy of Purchaser arising under Section 12 of this
Agreement.
During the Due Diligence Period and through to the Closing
Date, Purchaser shall have a continuing right of access to the
Property during normal business hours, subject to the following
terms and conditions:
A. Purchaser shall give Seller (in care of Stanley
Warnick (312)899-7724) at least two (2) Business Days
telephonic notice of its intention to inspect the Property or
conduct any sampling or testing. In addition, Purchaser shall
give at least two (2) Business Days telephonic notice to
Stanley Warnick before any environmental sampling or testing is
done at the Premises, and such sampling or testing is subject
to the sole approval of Seller and satisfaction of the
additional conditions set forth herein.
B. If Purchaser desires to conduct any environmental
sampling or testing at the Premises, Purchaser shall first
provide Seller with the proposed study plan therefor ("Plan").
The Plan is subject to the approval of Seller and no
environmental sampling or testing shall be performed until the
Plan therefor has been approved by Seller. Purchaser agrees
that Seller may have a representative present at any
inspection, sampling or testing, including, but not limited to,
an environmental engineer or consultant designated by Seller
(in connection with any environmental sampling or testing
conducted by Purchaser in accordance with this Section 4). At
Seller's request, any sampling or testing by Purchaser's
environmental consultant shall be conducted in a manner so as
to provide "split" samples or data to Seller's environmental
consultant.
C. Purchaser shall maintain adequate liability insurance
coverage for its officers, employees, agents and
representatives inspecting the Property or conducting sampling
or testing and, at Seller's request, will provide Seller with
written evidence of same.
D. Any such inspections, sampling and testing shall be
at Purchaser's sole cost and expense and Purchaser agrees to
keep the Property free and clear of any liens which may arise
as a result of such inspections, sampling and testing.
E. Purchaser shall restore promptly any physical damage
caused by the inspection, sampling or testing of the Property.
F. Purchaser shall, upon the request of Seller, provide
Seller with copies of written sampling test results and reports
prepared by third parties, but otherwise Purchaser and its
officers, directors, employees, agents and representatives
shall keep all such information, sampling and test results and
reports obtained or developed during or as a result of such
inspection strictly confidential, except as provided in Section
13.F below.
G. Purchaser hereby indemnifies and agrees to defend,
and hold Seller and its officers, directors, shareholders,
advisors, beneficiaries, agents, employees, representatives,
tenants and affiliates harmless from and against all loss,
cost, liability, lien, damage or expense, including reasonable
attorneys' fees and costs made, sustained, suffered or incurred
against or by Seller and its officers, directors, shareholders,
advisors, beneficiaries, agents, employees, representatives,
tenants and affiliates and attributable to or arising out of a
breach of the foregoing agreements by Purchaser in connection
with any such inspection, sampling or testing, but excluding
any liability for the discovery of any toxic or hazardous
materials on the Property; provided in the event that during
the course of such discovery Purchaser causes an escape, leak,
spillage, or discharge of any toxic or hazardous material,
Purchaser shall be responsible to the extent of such escape,
leak, spillage or discharge caused by Purchaser. The foregoing
indemnity shall survive the termination of this Agreement or
the Closing, as applicable, provided that Seller must give
notice of any claim it may have against Purchaser arising out
of such indemnity within fourteen (14) months after Closing or
termination of this Agreement (as the case may be) and such
claim must be prosecuted by the filing of a lawsuit in a court
of proper jurisdiction within twenty (20) months after Closing
or the termination of this Agreement (as the case may be).
H. Purchaser shall not have any right to terminate this
Agreement based on the inspection (and other) rights contained
in this Section 4 after expiration of the Due Diligence Period.
5. CONDITIONS PRECEDENT.
The following conditions are precedent to Purchaser's
obligation to purchase the Property (the "Conditions
Precedent"):
A. The issuance of the Title Policy to Purchaser in
accordance with Section 6 below.
B. Purchaser's review and approval, within the Due
Diligence Period, of any reasonable information relating to the
Property that is specifically requested by Purchaser of Seller
in writing during the Due Diligence Period to the extent such
information either is in the possession or control of Seller,
including but not limited to insurance certificates of tenants;
provided, however, any such request for additional information
shall in not extend the Due Diligence Period. Purchaser has
reviewed and approved all the Service Contracts.
C. Purchaser's review and approval, within the Due
Diligence Period, of the condition of the roofs.
D. Purchaser's review and approval, within the Due
Diligence Period, of all governmental permits and approvals
relating to the construction, operation, use or occupancy of
the Property, and all zoning, land-use, subdivision,
environmental, building and construction laws and regulations
restricting or regulating or otherwise affecting the use,
occupancy or enjoyment of the Property.
E. Review and approval of the proposed sale by AMB's
Investment Committee, in its sole discretion, within the Due
Diligence Period.
F. The physical condition of the Property shall be
substantially the same on the day of Closing as on the date of
this Agreement, reasonable wear and tear and loss by casualty
excepted (subject to the provisions of Section 11 below), and,
as of the day of Closing, there shall be no litigation or
administrative agency or other governmental proceeding of any
kind whatsoever, pending or threatened in writing (and received
by Seller or Purchaser), which Purchaser was not aware of as of
the date of this Agreement, and which after Closing would, in
Purchaser's reasonable discretion, materially adversely affect
the value of the Property or the ability of Purchaser to
operate the Property in the manner in which it is currently
being operated, and no proceedings shall be pending or
threatened in writing (and received by Seller or Purchaser),
which Purchaser was not aware of as of the date of this
Agreement, which could or would cause the redesignation or
other modification of the zoning classification of, or of any
building or environmental code requirements applicable to, any
of the Property.
G. The absence, after the execution of this Agreement or
the end of the Due Diligence Period, as applicable, but prior
to the Closing Date, of (i) any change in any law, ordinance,
regulation, order or the like such that the continued use and
operation of the Property in the manner in which it is
currently used and operated would be materially and adversely
impaired, (ii) any bankruptcy filing by or with respect to any
tenant or tenants whose Lease or Leases affect five thousand
square feet (5,000 sq. ft.) or more of the rentable area of the
Improvements, whether individually or on an aggregate basis
(the "Threshold Square Footage"), (iii) the repudiation or
termination by any tenant or tenants of its Lease, prior to the
expiration thereof, where such repudiated or terminated Leases
affect the Threshold Square Footage, unless Seller re-leases
the vacated space on terms acceptable to Purchaser, and (iv)
any material default under any Lease or Leases which affect the
Threshold Square Footage. As used herein, "material default"
shall mean any non-monetary default which is not cured by
Seller on or before the Closing Date, and any monetary default
which has occurred and is continuing on the Closing Date or
after the expiration of any applicable cure period as set forth
in the applicable Lease. Seller may, but shall not be required
to, cure any material non-monetary default (if possible) and
cure any material monetary default by paying the amount of such
monetary default to Purchaser on or before the Closing Date, in
which event this Condition Precedent shall be deemed satisfied;
provided, Seller shall not be entitled to cure such material
default and thereby force Purchaser to close this transaction
notwithstanding such material default unless Seller provides to
Purchaser, upon request, some reasonable assurance that the
material default in question is not something that will
continue or promptly reoccur after the Closing Date. In the
event Seller cures a material default as provided above by
paying the amount due from a tenant and then subsequently
Purchaser receives funds from the defaulting tenant to
effectuate the same cure, Purchaser shall reimburse to Seller
the amounts actually received from the defaulting tenant for
such cure. Notwithstanding anything to the contrary set forth
above, the terms of the Condition Precedent set forth in this
Section 5.G shall not apply to Super Gap, Inc.
H. Seller's obtaining and delivering to Purchaser, on or
before the Closing Date, certificates issued by the Illinois
Department of Revenue and the Illinois Department of Employment
Security (the "Certificates") showing that Seller does not have
any liability for the payment of any assessed, but unpaid tax,
contribution, penalty or interest under Section 902(d) of the
Illinois Income Tax Act (Ill. Rev. Stat. ch. 120, 9-902(d)),
Section 5(j) of the Illinois Retailers' Occupation Tax Act
(Ill. Rev. Stat. ch. 120, 144(j)) or Section 2600 of the
Illinois Unemployment Insurance Act (Ill. Rev. Stat. ch. 48,
750). In the event that Seller does not deliver the
Certificates on or before closing, Seller shall indemnify,
reimburse, defend and hold Purchaser harmless from and against
any liability or obligation for the payment of any such taxes,
contributions, penalties or interest, without need for further
written agreement or document to be delivered at Closing. The
terms of this Section 5.H shall survive the closing, provided
the above indemnity shall terminate upon Seller's delivery to
Purchaser of the Certificates. The provisions of this Section
5.H shall not be subject to the limitations on Seller's
liability set forth in Section 8.G of this Agreement.
The Conditions Precedent contained in this Section 5 are
intended solely for the benefit of Purchaser. If any of the
conditions precedent are not satisfied, Purchaser shall have
the right in its sole discretion either to waive in writing the
Condition Precedent and proceed with the purchase or terminate
this Agreement. If Purchaser shall not have approved or waived
in writing all of the Conditions Precedent set forth in this
Section 5 by the end of the Due Diligence Period, or the other
date set forth above for such condition, then this Agreement
shall automatically terminate, the Deposit plus interest
accrued thereon shall be immediately returned to Purchaser as
its sole and exclusive remedy and neither party shall have any
further rights or obligations hereunder except for those
obligations that, by their express terms, survive the
termination or expiration of this Agreement.
6. TITLE AND SURVEY.
A. The Premises shall be conveyed to Purchaser at
Closing by a recordable limited warranty deed in the form of
Exhibit C attached hereto and made a part hereof and shall be
subject to (i) the lien of non-delinquent real estate taxes and
assessments, (ii) the rights of Tenants under the Leases, (iii)
acts and deeds of Purchaser, (iv) the matters approved or
deemed approved by Purchaser, which are the following
exceptions set forth in Schedule B, Section 2 of the Title
Commitment (as defined below): 5 (modified to show that the
final installment of 1995 taxes have been paid), 6-7, 9
(modified to reference the ALTA Survey, as defined below), 12,
13 and 16 (with an endorsement which protects Purchaser against
any loss or cost resulting from the mechanics' lien that is the
subject of exceptions 13 and 16), and (v) Ameritech lien claims
(as defined in 6.B(iii) below) (collectively called the
"Permitted Exceptions").
B. Seller has furnished to Purchaser a commitment
("Title Commitment") for ALTA (Form B, rev. 10/17/70) Owner's
Title Insurance Policies showing title to the Premises in
Seller, and proposing to insure Purchaser in the amount of the
Purchase Price, and issued by the Title Company. The Title
Commitment was accompanied by copies of the underlying title
exception documents referred to therein and set forth the
requirements for the deletion of the standard title policy
exceptions pertaining to (i) rights of parties in possession,
(ii) easements not shown by the public records, (iii)
mechanic's lien claims (other than possible mechanic's lien
claims arising under contracts let by, through or under
Ameritech in connection with tenant improvements in the
Ameritech premises) (Ameritech lien claims), and (iv) survey
matters. If the Title Commitment is amended to disclose new
matters which are not permitted pursuant to Sections 6.A(i)-
(iii) above or which are otherwise reasonably objected to by
Purchaser, Purchaser shall give written notice specifying such
fact to Seller on or before five (5) Business Days after
Purchaser receives written notice of such new exception, and
Seller shall have (at Seller's election) thirty (30) days after
the date of receipt of Purchaser's written notice ("Title Cure
Period") to cure the basis of the objection. If Seller (in its
sole discretion) does not cure such matters within the Title
Cure Period, Purchaser may, within two (2) Business Days after
receipt of notice from Seller that Seller does not elect to
cure the matter objected to by Purchaser, (I) terminate this
Agreement upon written notice given to Seller, or (II) elect,
upon written notice given to Seller, to take title as it then
is without any set-off or deduction of any kind against the
Purchase Price or otherwise. If this Agreement is so
terminated, the Deposit Escrowee shall return promptly the
Deposit to Purchaser as its sole remedy and neither party shall
have any liability to the other except for the obligations of
Purchaser set forth in Section 4.G above and Section 13.F below
and the obligations of the parties set forth in Section 8.D
below, which shall survive the termination of this Agreement.
If Seller does not receive written notice of Purchaser's
election to terminate this Agreement within the two (2)
Business Day period specified above, Purchaser shall be
conclusively presumed to have elected to take title as it then
is as aforesaid.
C. Seller has furnished to Purchaser and Purchaser has
approved a new survey (the "ALTA Survey"), which is, or will be
prior to closing, certified to Purchaser and the Title Company
by a surveyor registered in the State of Illinois in a form
substantially in accordance with Exhibit K hereto.
D. The cost of the Title Commitments and the ALTA
owner's title insurance policy issued pursuant thereto ("Title
Policy"), the endorsements to the Title Policy set forth below,
the ALTA Survey, and a 50-year chain of title report shall be
paid by Seller. The cost of curing (if elected by Seller) any
title or survey defects or adverse matters (limited as set
forth in Sections 6.B and 6.C above) which are not Permitted
Exceptions shall be paid by Seller. Purchaser shall obtain (to
the extent the Title Company is willing to issue), at Seller's
sole cost, the Illinois equivalent of the following
endorsements: CLTA endorsement Nos. 100 (comprehensive,
modified for owner's policy), 116.1 (survey), 103.7 (street
address, access), 123.2 (zoning, with parking), 116.7 (map
act), and a special endorsement insuring that the Property
constitutes one separate and distinct tax parcel, in connection
with the Title Policy, and the issuance of such endorsements
shall be a condition of Closing.
7. CLOSING.
Payment of the Purchase Price and the consummation of the
transaction contemplated by this Agreement ("Closing") shall
take place pursuant to an escrow closing which provides that
the Purchase Price shall be paid to Seller substantially
simultaneously with the recording of the deed or deeds in the
applicable recorder's office. The Closing shall occur at 9:00
a.m. Pacific time on December 4, 1996 ("Closing Date") at the
offices of the Title Company in Chicago, Illinois or at such
earlier date or other place as may be mutually agreed upon in
writing by both Seller and Purchaser; provided, either Seller
or Purchaser shall have the right to extend the Closing Date
until not later than December 30, 1996 in the event that
Purchaser has not received the Requisite Number of Estoppel
Certificates, as defined in Section 10.E below, on or before
December 4, 1996.
8. REPRESENTATIONS AND WARRANTIES.
A. Seller represents and warrants to Purchaser that,
except as set forth in the Warranty Certificate (as hereinafter
defined):
1. Seller is a limited partnership, duly organized,
validly existing and in good standing under the laws of
the State of Illinois, has duly authorized the execution
and performance of this Agreement and such execution and
performance will not violate Seller's partnership
agreement or any other constituent or organizational
document, or any contract or agreement by which Seller is
bound in any material respect.
2. This Agreement is valid and enforceable against
Seller in accordance with its terms and each instrument to
be executed by Seller pursuant to this Agreement will,
when executed and delivered, be enforceable in accordance
with its terms, subject to bankruptcy, insolvency and
similar laws affecting creditors' rights generally.
3. Seller has not received written notice prior to
the date hereof from any governmental authority of any
violation of any environmental, zoning, building, fire or
health code or law applicable to the Property or any
portion thereof ("Laws") that has not heretofore been
corrected to the satisfaction of such authority. However,
no warranty is made with respect to (a) the Americans With
Disabilities Act, 42 U.S.C. Section 12101 et seq. and the
regulations promulgated thereunder ("ADA"), (b) any
matters disclosed in the Existing Environmental Reports,
and (c) any Hazardous Material (as hereinafter defined)
that may be located on the Property in the ordinary course
of any Tenant's business which is in compliance with
applicable Laws. Purchaser waives any rights to
contribution for environmental matters it may now or
hereafter have, whether under the Comprehensive
Environmental Response, Compensation and Liability Act (42
U.S.C. Section 9601 et seq.), or otherwise, except to the
extent Seller has breached a representation or warranty
relating to environmental matters set forth herein.
4. The Service Contracts listed on Exhibit O hereto
are all of the contracts made by Seller or, to Seller's
Knowledge (as hereinafter defined), the Property Manager
which affect the Property as of the date of the
Information Package, except for the Leases, the Permitted
Exceptions and the existing property management agreements
or other agreements which are to be terminated effective
upon closing. There are no material defaults of Seller
under the Service Contracts.
5. There are no delinquencies with respect to real
estate taxes affecting the Premises.
6. The Land constitutes a separate and distinct
parcel for real estate tax purposes.
7. Seller does not have any employees in connection
with the Property.
8. Seller has not received any written notice from
any governmental authority that any Laws applicable to the
Property have been violated which violations have not
heretofore been corrected to the satisfaction of such
governmental authority, except for any notices which have
been delivered from Seller to Purchaser.
9. To Seller's Knowledge, the Permits and
Warranties delivered to Purchaser as part of the
Information Package are true and correct in all material
respects, and the Income Statements were prepared in the
ordinary course of Seller's business.
10. Seller has not received written notice of (a)
any condemnation, environmental, zoning or other land-use
regulation proceedings concerning any portion of the
Property that would detrimentally affect the use,
operation or value of the Property, or (b) any special
assessment proceedings affecting the Property (other than
as set forth in the Title Commitment).
11. To Seller's Knowledge (as hereinafter defined)
and except for the fact that Seller has not located any
certificates of occupancy for the Improvements, Seller has
no reason to believe that all licenses, permits and
approvals for the use and occupancy of the Improvements as
a retail shopping center buildings have not been obtained.
12. Other than the mechanics' lien filed against the
Property in connection with certain roof work done by Toys
R' Us (which mechanics' lien shall be completely insured
over in Purchaser's Title Policy), there is no litigation
pending or, to Seller's Knowledge threatened, against
Seller or the Property which might detrimentally affect
the value, use or operation of the Property or the ability
of Seller to perform its obligations hereunder.
13. Seller is not a "foreign person" within the
meaning of Section 1445(f)(3) of the Federal Code.
14. Except as disclosed in the Existing
Environmental Reports, neither Seller, nor to Seller's
Knowledge any Tenant, has used, manufactured, generated,
treated, stored, disposed of, or released any Hazardous
Material on, under or about the Property or has installed,
used or removed any underground storage tank on the
Property, except in compliance with all environmental
laws. For the purposes hereof, "Hazardous Material" shall
mean any substance, chemical, waste or other material
which is listed, defined or otherwise identified as
"hazardous" or "toxic" under any federal, state, local or
administrative agency ordinance or law.
15. To Seller's Knowledge, and except as otherwise
set forth in this Agreement, there are no contractual
obligations created by Seller in connection with the
Property which will be binding upon Purchaser after
Closing, except (a) matters which are set forth in the
Title Commitments, (b) the Service Contracts described in
Exhibit O hereto, and (c) the Leases.
16. Neither Seller nor, to Seller's Knowledge, any
Tenants leasing, in the aggregate, more than five percent
(5%) of the net rentable area of the Improvements, have
either filed or been the subject of any filing of a
petition under the United States Bankruptcy Code or any
federal or state insolvency laws or laws for composition
of indebtedness or for the reorganization of debtors.
17. The copies of the Leases that have been
delivered to Purchaser are true, correct and complete in
all material respects and constitute all leases relating
to the Property. Each Lease (a) is in full force and
effect and without any right of set-off (except as may be
provided for in the Lease), (b) constitutes the entire
agreement between the Tenant and Seller regarding the
Property; and (c) has not been amended, modified, or
supplemented, except for any amendments, modifications,
and supplements that have been delivered to Purchaser.
All tenant improvements required to be furnished,
constructed or installed by the landlord under the Leases
entered into by Seller have been completed in all material
respects in accordance with the terms of the Leases and to
the reasonable satisfaction of the respective Tenants. To
Seller's Knowledge, Seller is not in default in the
performance of any of its obligations under any of the
Leases and there are no circumstances that, with the
passage of time or the giving of notice, or both, would
constitute an event of default by Seller under the terms
of any of the Leases. To Seller's Knowledge, none of the
Tenants is in material default in the performance of any
of its obligations under its Lease.
18. None of the Tenants has given written notice
under the Lease that it will terminate its Lease prior to
the expiration of the term thereof.
19. The Rent Roll attached to this Agreement as
Exhibit L is true and correct.
20. Prior to the time of execution of the Deeds
described in Section 10.A.1 hereof ("Deed"), Seller will
not have conveyed the same estate, or any right, title or
interest therein, to any person other than the grantee
named in the Deed.
21. The estate to be conveyed by the Deed will be,
at the time of execution of the Deed, free from
encumbrances done, made or suffered by Seller or any
person claiming under Seller except for the Permitted
Exceptions.
22. There is no personal property owned by Seller
which is used solely or primarily in connection with the
Property.
B. Purchaser represents and warrants to Seller that:
1. Purchaser is a corporation, duly organized,
validly existing and in good standing under the laws of
the State of Maryland, is a qualified real estate
investment trust subsidiary under the Federal Code, is
authorized to do business in the State of Illinois, has
duly authorized the execution and performance of this
Agreement, and such execution and performance will not
violate its Articles of Incorporation, Bylaws or any other
constituent or organizational document, or any contract or
agreement by which it is bound.
2. This Agreement is valid and enforceable against
Purchaser in accordance with its terms and each instrument
to be executed by Purchaser pursuant to this Agreement
will, when executed and delivered, be enforceable in
accordance with its terms, subject to bankruptcy,
insolvency and similar laws affecting creditors' rights
generally.
C. As used in Section 8.A. (or in any other Sections of
this Agreement), "Seller's Knowledge" shall mean and be limited
to the actual knowledge (as distinguished from implied, imputed
or constructive knowledge) of Brian Ellison (a portfolio
manager of JMB Realty Corporation), and Frank Barrios (a
property manager of Urban Retail Properties Company), and the
"Knowledge" of the aforementioned individuals shall not include
a duty to inquire or investigate any facts or information with
respect to the Property or the warranties of Seller contained
herein.
D. Seller and Purchaser mutually represent and warrant
to each other that each has had no dealings, negotiations, or
consultations with any broker or other intermediary in
connection with this Agreement or the sale of the Property,
except for Richard Ellis, L.L.C. ("Seller's Broker"). Provided
the transaction contemplated hereby is consummated, Seller
shall pay a brokerage commission to Seller's Broker in an
amount previously agreed to by such parties. Seller and
Purchaser agree that each will indemnify, defend and hold the
other free and harmless from the claims (including attorneys'
fees) of any other broker or other intermediary claiming to
have dealt with Seller or Purchaser, respectively, in
connection with this Agreement or the sale of the Property.
E. It shall be a condition to each party's obligation to
close that the representations and warranties of the other
party are true and correct in all material respects as of
Closing, and that Seller's warranties contained herein are
updated at Closing pursuant to Section 10.A.11 hereof.
F. If prior to Closing Purchaser obtains Actual
Knowledge that any of Seller's representations and warranties
is not true and correct, Purchaser shall promptly notify Seller
of same. Seller shall have (at Seller's election) a period of
thirty (30) days ("Warranty Cure Period") in which to attempt
to cure any breach of warranty alleged by Purchaser or any
breach of warranty otherwise discovered by Seller (and the date
of Closing shall be extended accordingly); provided, however,
that Seller, at its sole option, may elect not to cure (or
attempt to cure) the alleged breach. If Seller does not cure
such breach of warranty within the Warranty Cure Period,
Purchaser may within two (2) Business Days after receipt of
notice from Seller that Seller does not elect to cure the
alleged breach of warranty, (i) terminate this Agreement upon
written notice given to Seller, or (ii) elect, upon written
notice given to Seller, to close without any set-off or
deduction of any kind against the Purchase Price or otherwise.
If this Agreement is so terminated, the Deposit Escrowee shall
return promptly the Deposit to Purchaser as its sole remedy and
neither party shall have any liability to the other except for
the obligations of Purchaser set forth in Section 4.G above and
Section 13.F below and the obligations of the parties set forth
in Section 8.D above, which shall survive the termination of
this Agreement. If Seller does not receive written notice of
Purchaser's election to terminate this Agreement within the two
(2) Business Day period specified above, Purchaser shall be
conclusively presumed to have elected to terminate this
Agreement.
G. The representations and warranties set forth in
Section 8.D shall survive the Closing for the full period of
the applicable statute of limitations. All of the other
representations, warranties and certifications of the parties
set forth in Sections 8.A and 8.B above (and in any other
Sections of this Agreement), in the documents delivered
pursuant to Sections 10.A.1, 10.A.3, 10.A.4 and 10.A.11 below
(collectively called the "Conveyance Documents") shall survive
Closing, provided written notice of any claim arising from a
breach of such representations, warranties and certifications
must be specified and received by the other party not later
than December 31, 1997 and prosecuted by the filing of a
lawsuit in a court of proper jurisdiction no later than
December 31, 1997. All other claims for breach of such
representations, warranties and certifications shall be barred
and neither party shall have any liability with respect
thereto. In no event shall the aggregate liability of Seller
(i) under any indemnities contained in this Agreement or the
Conveyance Documents or in any way arising out of or in
connection with this Agreement (including the costs or fees of
any third party consultants or attorneys in connection
therewith), except for the indemnities set forth in Section 5.J
above and Section 16 below and except as otherwise expressly
set forth in this Agreement, (ii) for a breach of any covenants
contained in this Agreement or the Conveyance Documents, or
(iii) for a breach of the representations, warranties and
certifications set forth in this Agreement or the Conveyance
Documents exceed Five Hundred Thousand Dollars ($500,000).
The liability of Seller arising out of a breach of the
representations relating to environmental matters set forth in
Recital B and Sections 8.A.3, 8.A. 10, and 8.A.14 above and in
any Conveyance Document shall be further limited to the actual
costs of remediation required by any applicable governmental
authority, together with any incidental costs related to such
remediation, which costs shall include attorneys', consultants'
and experts' reasonable fees and costs, monitoring costs,
application and permitting fees, and any fines or penalties
assessed by any applicable governmental agency but shall
exclude any consequential damages including tenant vacancies.
Notwithstanding anything contained herein to the contrary,
Purchaser shall have no right to recover damages against Seller
for the breach of any representation, warranty or certification
of Seller contained herein or in the Conveyance Documents as to
which Purchaser had Actual Knowledge prior to Closing, but as
to which Purchaser did not give Seller the notification
required in Section 8.F above. For purposes of this Agreement,
Purchaser's "Actual Knowledge" shall mean and be limited to the
actual knowledge (as distinguished from, implied, imputed or
constructive knowledge) of Mohammad Barzegar, Robert Bransfield
and Alison White of AMB Institutional Realty Advisors, Inc.
Such knowledge of the aforedescribed individuals shall not
include a duty to inquire or investigate any facts or
information with respect to the Property or the warranties of
Seller contained herein (other than as contemplated in Sections
1.B and 4 hereof).
H. Subject to all limitations on liability contained in
Section 8.G and elsewhere in this Agreement, Seller agrees to
indemnify, protect and defend Purchaser against and hold
Purchaser harmless from any and all claims, liabilities,
losses, damage, costs and expenses, including, without
limitation, all reasonable attorneys' fees, asserted against or
suffered by Purchaser resulting directly from (i) any breach by
Seller of this Agreement after the Closing Date, (ii) any
claims by third parties against Purchaser as successor-in-
interest to Seller for any personal injury or property damage
occurring on the Property prior to the Closing Date, other than
injury or damage caused by Purchaser or for which Purchaser is
obligated to indemnify Seller pursuant to Section 4.G above,
and (iii) the material untruth or inaccuracy of any of the
representations or warranties made by Seller pursuant to this
Agreement, which is discovered by Purchaser after the Closing
Date and is not otherwise cured by Seller.
I. Subject to all limitations on liability contained in
Section 8.G and elsewhere in this Agreement, Purchaser agrees
to indemnify, protect and defend Seller against and hold Seller
harmless from any and all claims, liabilities, losses, damages,
costs and expenses, including, without limitation, all
reasonable attorneys' fees, asserted against or suffered by
Seller resulting directly from (i) any breach by Purchaser of
this Agreement after the Closing Date, (ii) any claims by third
parties for any personal injury or property damage occurring on
the Property on or after the Closing Date, other than injury or
damage caused by Seller prior to the Closing Date, and (iii)
the material untruth or inaccuracy of any of the
representations or warranties made by Purchaser pursuant to
this Agreement, which is discovered by Seller after the Closing
Date and is not otherwise cured by Purchaser.
9. CLOSING COSTS AND PRORATIONS.
A. Seller and Purchaser shall share equally the cost of
the escrow closing arrangements, including any escrow fees
charged by the Title Company and any state, local or county
real or personal property transfer taxes relating to the
transfer of real or personal property to Purchaser. Purchaser
shall pay the cost of recording the Deed. Except as otherwise
specifically provided in this Agreement, each party shall bear
its own costs in performing its obligations under this
Agreement including, without limitation, its own attorneys'
fees and, in the case of Purchaser, all costs and expenses in
connection with its inspection of the Property as provided in
Section 4 above.
B. The following items are to be prorated or adjusted as
of the end of the day ("Proration Date") immediately prior to
the Closing Date:
1. Rents, and other amounts owed under the Leases
(regardless of whether or not such rent and other amounts
have been paid to Seller), payments under Service
Contracts assigned to Purchaser, personal property taxes,
installment payments of special assessment liens (and
Purchaser shall be responsible to pay all installments of
special assessments which are due after the Proration
Date), annual or periodic permit and/or inspection fees
(calculated on the basis of the period covered), sewer
charges and operating or utility charges actually
collected, billed or paid as of the date of Closing shall
be prorated as of the Proration Date and be adjusted
against the Cash Balance due at Closing, provided that
within ninety (90) days after Closing, Purchaser and
Seller will make a further adjustment for such rents,
payments, taxes or charges which may have been incurred
for the period of time before Closing, but not billed or
paid at that time. Promptly following the final
determination of all percentage rents for calendar year
1996, Seller and Purchaser shall prorate percentage rents
for calendar year 1996 by determining the percentage of
total sales for the 1996 calendar year for tenants paying
percentage rent that were generated during each party's
ownership period in calendar year 1996 (the "Sales Ratio")
and dividing the total percentage rent for calendar 1996
in accordance with the Sales Ratio. In the event monthly
sales information is not available, Seller and Purchaser
shall use a per diem calculation for purposes of such
prorations. In addition, Seller or Purchaser may require
a further adjustment of such rents, payments, taxes or
charges following the end of calendar year 1996 after the
actual amount of the applicable items becomes known and
available. Rents and other amounts collected by Purchaser
or its agent under any Lease after Closing attributable to
the time period before Closing shall be paid to Seller;
provided, however, that all rent collected by Purchaser
shall be applied first to all unpaid rent accruing after
the Proration Date. Purchaser shall not be obligated to
take any legal steps to recover any rent arrearages, but
shall in good faith attempt to collect such amounts but
shall not be required to commence any legal proceedings in
order to do so.
2. Non-delinquent real and/or personal property
taxes will be prorated as of the Proration Date using the
most recent ascertainable tax bill therefor to estimate
current taxes. For purposes of such prorations, Seller
and Buyer shall assume that 1996 real property taxes equal
one hundred five percent (105%) of 1995 real estate taxes.
Such taxes will be reprorated within ninety (90) days
after the issuance of the actual tax bill, it being the
intent of the parties that Seller be responsible for real
estate (and personal property, if applicable) taxes for
the Premises attributable to the period before Closing and
Purchaser be responsible for the real estate (and personal
property, if applicable) taxes for the Premises
attributable to the period after Closing; provided,
however, because Dominick's, Toys 'R' Us and Walgreens pay
their respective portions of real estate taxes to the
landlord in arrears, Seller and Purchaser shall not
include such taxes in the prorations at closing. Any
refund of real estate or personal property taxes for the
Premises attributable to the fiscal year in which the
Closing takes place (or any fiscal year prior to such
year) shall be prorated between the parties (to the extent
paid by the parties) within thirty (30) days after such
refund has been received by Seller or Purchaser, as the
case may be after deducting any costs incurred in
petitioning for the tax reduction. Seller shall be
entitled to receive the portion of such refund that
pertains to the period of time prior to the date of
Closing and Purchaser shall be entitled to receive the
portion of such refund that pertains to the period of time
after the date of Closing.
3. The full amount of security deposits paid under
the Leases, which have not been applied by Seller shall be
credited to Purchaser by application against the Cash
Balance due at Closing.
4. Seller shall pay for (a) leasing commissions and
tenant improvement costs currently due and owing in
connection with all Leases entered into prior to the date
of this Agreement ("Current Leases"), (b) any commissions
arising out of the exercise by a Tenant prior to the
Closing Date of an extension or expansion option contained
in a Current Lease, and (c) any inducements to Tenants
under Current Leases which are expressly payable prior to
the Closing Date. Purchaser shall pay (in accordance with
Section 3.B hereof) for all leasing commissions and tenant
improvement costs in connection with any Leases entered
into after the date hereof ("New Leases"). Purchaser
shall additionally pay for all leasing commissions and
tenant improvement costs in connection with the exercise
by a Tenant on or after the Closing Date of an extension
or expansion option contained in a Current Lease or a New
Lease.
5. Where the Leases contain Tenant obligations for
taxes, common area expenses, operating expenses or
additional charges of any other nature, and where Seller
shall have collected any portion thereof in excess of (or
less than) amounts owed by Seller for such items for the
period prior to the Proration Date, then there shall be an
adjustment and credit given to Purchaser or Seller, as the
case may be, on the Proration Date for such excess or
deficiency in the amounts collected; provided, however,
any amounts that must be refunded to tenants shall not be
considered as having been collected.
6. Seller shall cause all the utility meters to be
read on as close to the Proration Date as is practical and
will be responsible for the cost of all utilities used
prior to the Proration Date (and Purchaser will be
responsible for the cost of all utilities used on and
after the Proration Date), except to the extent such
utility charges are billed to and paid by Tenants
directly.
C. Notwithstanding anything to the contrary contained
herein, at Seller's election, no prorations shall be made for
any expense item that is required to be paid (or reimbursed) to
Seller pursuant to the terms of the Leases. All prorations and
Closing adjustments shall be made on the basis of a 365 day
calendar year. All such prorations and adjustments shall be
subject to post-Closing adjustments as necessary to reflect
later relevant information not available at Closing and to
correct any errors made at Closing with respect to such
apportionments and the party receiving more than it was
entitled to hereunder shall reimburse the other party hereto in
the amount of such overpayment within thirty (30) days after
receiving written demand therefor. Either party owing the
other party a sum of money based on such subsequent
proration(s) shall promptly pay said sum to the other party,
together with interest thereon at the rate of two percent (2%)
per annum over the "prime rate" announced from time to time by
First National Bank of Chicago at its main branch in Chicago,
Illinois, from the Proration Date to the date of payment if
payment is not made within thirty (30) days after receipt of a
bill therefor. Notwithstanding the foregoing, such
apportionments shall be deemed final and not subject to further
post-Closing adjustment, except for reproration of real estate
(and personal property, if applicable) taxes or tax refunds as
provided above, if no such adjustments have been requested
within ninety (90) days after the end of calendar year 1996.
10. CLOSING DOCUMENTS AND MATTERS.
A. On the Proration Date, Seller shall deliver the
following original documents into escrow, each acknowledged and
executed (as appropriate):
1. Deed to the Premises in the form of Exhibit C
attached hereto, subject to the matters Purchaser has
agreed to accept under the terms of this Agreement.
2. Applicable real estate transfer tax
declarations, if any.
3. A Bill of Sale with respect to the Personal
Property, in the form of Exhibit D attached hereto.
4. An Assignment and Assumption of Leases, Service
Contracts, Permits and Warranties, Plans and any other so-
called intangible property constituting the Property in
the form of Exhibit E attached hereto.
5. A Notice of Lease Assignment to the Tenants in
the form of Exhibit M hereto.
6. Originals, or, if originals are not available
then copies, of all Leases and assigned Service Contracts,
all Permits and Warranties, Plans and intangible property
described in Section 1.A.4 above.
7. An ALTA Loan and Extended Coverage Statement or
the equivalent thereof reasonably required by the Title
Company in connection with the issuance of the Title
Policy, which Statement may disclose the Leases by
attaching a copy of the Rent Roll and which shall provide
that there is no lienable work that has been performed by
or on behalf of Seller on or about the Premises which has
not been fully paid for (or for which payment arrangements
satisfactory to the Title Company have not been made).
8. Any evidence of the authority of Seller to
consummate the transaction contemplated hereby that is
reasonably requested by the Title Company.
9. Separate or jointly prepared escrow instructions
to Title Company in form and content satisfactory to
Purchaser and Seller.
10. A certificate ("Warranty Certificate") with
respect to Seller's representations and warranties in the
form attached hereto as Exhibit N; provided, however, if
such certificate discloses a material breach of, or a
change of facts regarding, a representation or warranty,
Purchaser shall have the right to refuse to close the
transaction contemplated hereby.
11. Any other instruments, records or correspondence
specifically required under this Agreement which have not
previously been delivered.
12. The Federal Withholding Certificate. If Seller
fails to deliver such Certificate, Purchaser shall not be
excused from its obligation to consummate the transactions
contemplated herein, but rather may deduct and withhold
from the Purchase Price an amount equal to ten percent
(10%) of the "amount realized on the disposition" of any
"United States real property interest" in connection with
the transactions contemplated herein, all as defined and
required by the Federal Withholding Provisions. As
described in Section 2.B above, any amount so withheld
shall be deemed to have been paid by Purchaser as a part
of the Purchase Price. Should Seller deliver a
withholding certificate issued by the IRS pursuant to the
Federal Withholding Provisions which permits Purchaser to
withhold an amount less than ten percent (10%) of the
amount realized on the disposition, Purchaser may withhold
such lesser amount, and the amount so withheld shall be
deemed to have been paid by Purchaser as part of the
Purchase Price.
B. On the Proration Date, Purchaser shall deliver or
cause to be delivered the following original documents into
escrow, each acknowledged and executed (as appropriate):
1. The Assignment and Assumption in the form of
Exhibit E hereto, which includes an assumption-of Seller's
obligations to the Tenants under the Leases with respect
to the security deposits paid thereunder.
2. Applicable real estate transfer tax
declarations, if any.
3. If required by the Title Company, an ALTA Loan
and Extended Coverage Statement or the equivalent thereof
reasonably required by the Title Company in connection
with the issuance of the Title Policy.
4. The Notice of Lease Assignments described in
Section 10.A.5 above.
5. Any evidence of the authority of Purchaser to
consummate the transaction contemplated hereby that is
reasonably requested by the Title Company.
6. Separate or jointly prepared escrow instructions
to Title Company in form and content satisfactory to
Purchaser and Seller.
C. Seller and Purchaser shall each deposit such other
instruments as are reasonably required by the Title Company to
close the escrow and consummate the purchase of the Property in
accordance with the terms hereof (provided that such
instruments do not increase the liability of the applicable
party hereunder), including an agreement ("Designation
Agreement") designating the Title Company as the "Reporting
Person" for the transaction pursuant to Section 6045(e) of the
Federal Code and the regulations promulgated thereunder, and
executed by Seller, Purchaser and the Title Company. The
Designation Agreement shall comply with the requirements of
Section 6045(e) of the Federal Code and the regulations
promulgated thereunder. Seller and Purchaser shall cause all
of the documents required by this Section 10 (in addition to
the Deed) to be delivered into escrow on the Proration Date,
and Purchaser shall cause the Cash Balance to be sent by wire
transfer to the Title Company as soon as possible (but in no
event later than 10:00 A.M. Central time) on the Closing Date.
D. At Closing, the Deposit and all interest thereon
shall be paid to Seller and Purchaser shall cause to be paid to
Seller the Cash Balance as required pursuant to Section 2
above, plus or minus prorations as determined pursuant hereto.
Closing shall be deemed to have occurred (e.g., for purposes of
possession and prorations) at such time as the Deposit and the
Cash Balance have been received by Seller in sufficient time
for Seller to invest such sum (and receive interest thereon),
in no event later than 2:00 P.M. Central time. Amounts not
received by such time shall, for purposes hereof, be deemed to
have been received the next Business Day.
E. In addition to the other conditions to Closing
expressly set forth in this Agreement, it shall be a condition
to Purchaser's obligation to close the transaction contemplated
hereby that Purchaser receives at Closing:
(i) The Title Policy or the written
obligation of the Title Company to issue
the Title Policy in the form of a title
commitment mark-up.
(ii) Estoppel certificates, substantially in
the form of Exhibit F attached hereto and
made a part hereof, from the Tenants
under Leases which demise not less than
ninety percent (90%) of the rentable area
of the Improvements (and the improvements
located on the Other Property) which is
occupied by Tenants under Leases in
effect as of the date hereof ("Required
Number of Estoppel Certificates").
Seller shall use reasonably diligent
efforts to obtain estoppel certificates
from all Tenants leasing space in the
Improvements, but if the Required Number
of Estoppel Certificates are not
delivered at or prior to Closing, as it
may be extended pursuant to Section 7
above, Purchaser may elect to terminate
this Agreement. An estoppel certificate
shall be deemed to satisfy the
requirements of this Section 10.E(ii)
even though it may not be in the form or
substance of Exhibit F, provided that the
certificate contains the specific
information (as opposed to a general or
"catch-all" requirement), if any,
required by the applicable Lease or that
the departures therefrom reflect facts or
circumstances that are disclosed in the
Information Package or that Purchaser had
Actual Knowledge through its inspection
of the Property. If this Agreement is
terminated pursuant to this Section
10.E(ii), the Deposit Escrowee shall
refund the Deposit and any interest
thereon to Purchaser and the parties
shall not have any further obligations
hereunder, except pursuant to Sections
4.G, 8.D and 13.F hereof, which shall
survive such termination. Seller shall
not encourage or invite any Tenant to
sign an estoppel certificate that
contains less information than the
estoppel certificate attached as Exhibit
F hereto.
F. Seller shall terminate the existing management
agreements and any brokerage agreements with the Property
Manager effective as of the date of Closing.
G. Purchaser shall be entitled to possession of the
Property at the conclusion of Closing subject only to the
matters expressly permitted by or pursuant to this Agreement.
H. Effective upon Closing, Seller may notify all
contractors and utility companies serving the Property of the
sale of the Property and to (i) return any deposit or deposits
posted by Seller, (ii) terminate Seller's account effective on
noon on the date of Closing, and (iii) direct to Purchaser all
bills for services provided to the Property on and after the
date of Closing.
11. CASUALTY AND CONDEMNATION.
A. In the event any of the Property is damaged or
destroyed prior to the Closing Date, and such damage or
destruction would cost less than One Hundred Thousand Dollars
($100,000) to repair or restore, then this Agreement shall
remain in full force and effect and Purchaser shall acquire the
Property upon the terms and conditions set forth herein. In
such event, Purchaser may elect either (i) to receive a credit
against the Purchase Price equal to the deductible amount under
Seller's insurance and take an assignment of Seller's interest
in all proceeds of insurance payable on account of the damage
or destruction, or (ii) to receive a credit against the
Purchase Price in an amount reasonably determined by Seller and
Purchaser (after consultation with unaffiliated experts) to be
the cost of repairing such damage or destruction, but in no
event more than One Hundred Thousand Dollars ($100,000). In
such event, Purchaser shall cooperate with all reasonable
requests of Seller and its insurance carrier so that Seller may
collect the proceeds of insurance payable on account of the
damage or destruction.
B. In the event (i) any of the Property is damaged or
destroyed prior to the Closing, and the cost of repair would
exceed One Hundred Thousand Dollars ($100,000), or (ii) if
condemnation proceedings are commenced against any of the
Property, then, notwithstanding anything to the contrary set
forth in this Section 11, Seller or Purchaser shall have the
right to terminate this Agreement by delivery of notice of
termination to the other party, whereupon Purchaser and Seller
shall each be released from all obligations hereunder
pertaining to the Property, except for obligations arising
under sections 4.G and 8.D. hereof. In the event neither party
elects to terminate this Agreement, Seller shall (i) notify
Purchaser of Seller's agreement to repair such damage or
destruction (to the extent feasible in the case of
condemnation), in which case this Agreement shall remain in
full force and effect and Purchaser shall receive a credit
against the Purchase Price at Closing in the amount reasonably
determined by Purchaser and Seller (after consultation with
unaffiliated experts) to be the value of any Property taken or
to be taken as a result of the condemnation proceeding, or (ii)
notify Purchaser of Seller's agreement to give Purchaser a
credit against the Purchase Price at the Closing in the amount
reasonably determined by Purchaser and Seller (after
consultation with unaffiliated experts) to be the cost of
repairing such damage or destruction (and, in the event of a
condemnation proceeding, the value of any Property taken or to
be taken as a result of such proceeding), in which case this
Agreement shall otherwise remain in full force and effect, and
Seller shall be entitled to all proceeds of insurance or
condemnation awards. In such event, Purchaser shall cooperate
with all reasonable requests of Seller and its insurance
carrier so that Seller may collect the proceeds of insurance
payable on account of the damage or destruction. Any repairs
elected to be made by Seller pursuant to this Section 11 shall
be made within one hundred eighty (180) days following such
damage or destruction and the Closing shall be extended until
the repairs are substantially completed. As used in this
Section 11, the cost to repair or restore shall include the
cost of lost rental revenue, including additional rent and base
rent.
12. DEFAULT.
A. In the event the sale of the Property is not
consummated because of the failure of any condition or any
other reason except a default under this Agreement on the part
of Purchaser, the Deposit plus interest accrued thereon shall
promptly be returned to Purchaser. If, after satisfaction or
waiver of all conditions precedent to Purchaser's obligations
contained herein (except for those conditions which cannot be,
or which are not, satisfied because of such default or because
of any anticipatory breach of this Agreement by Purchaser),
Purchaser shall default under this Agreement prior to Closing,
the Deposit shall be paid by the Deposit Escrowee to Seller as
liquidated damages, and both parties shall be relieved of and
released from any further liability hereunder except for the
obligations of Purchaser set forth in Section 4.G. above and
Section 13.F below and the obligations of the parties set forth
in Section 8.D above. Seller and Purchaser agree that the
Deposit is a fair and reasonable amount to be retained by
Seller as agreed and liquidated damages in light of Seller's
removal of the Property from the market and the costs incurred
by Seller and shall not constitute a penalty or a forfeiture.
THEREFORE, BY PLACING THEIR INITIALS BELOW, THE PARTIES
ACKNOWLEDGE THAT THE DEPOSIT HAS BEEN AGREED UPON, AFTER
NEGOTIATION, AS THE PARTIES REASONABLE ESTIMATE OF SELLER'S
DAMAGES AND AS SELLER'S EXCLUSIVE REMEDY AGAINST PURCHASER, AT
LAW OR IN EQUITY (EXCEPT AS PROVIDED ABOVE IN THIS SECTION
12.A), IN THE EVENT OF A DEFAULT UNDER THIS AGREEMENT ON THE
PART OF PURCHASER.
INITIALS:
B. Seller ____________ Purchaser____________
C. If Seller shall default under this Agreement prior to
Closing, Purchaser's sole remedy therefor shall be either (1)
to terminate this Agreement and have the Deposit returned to
it, or (2) to enforce Seller's obligations to convey the
Property, provided that no such action in specific performance
shall seek to require Seller to (a) change the condition of the
Property or restore the Property or any part thereof following
any fire, other casualty or condemnation; (b) expend money or
post a bond to remove a title defect or correct any matter
shown on the ALTA Survey in excess of its obligations under
Sections 6.B and 6.C above; or (c) secure any permit, approval
or consent with respect to the Property or Seller's conveyance
of the Property. Notwithstanding the foregoing, if Seller has
wilfully and intentionally committed a material default
hereunder which default shall not include a breach of a
representation or warranty of Seller, Purchaser may recover
from Seller (if Purchaser has elected to terminate this
Agreement) the reasonable, out of pocket, bona fide costs
incurred by Purchaser as a result of the transaction
contemplated by this Agreement (in no event to exceed
$100,000), including but not limited to the reasonable costs of
Purchaser's investment advisor, AMB Institutional Real Estate
Investment Advisors, Inc. The limitations on liability
contained in this Section 12.B shall not affect or limit
Purchaser's remedies (if any) contained elsewhere in this
Agreement for a breach by Seller of a covenant, representation
or warranty contained herein which occurs (or is discovered, as
the case may be) after the Closing Date.
13. MISCELLANEOUS.
A. No alteration, modification or interpretation of this
Agreement or the Exhibits shall be binding unless in writing
and signed by both parties.
B. If any provision of this Agreement or any application
to any party or circumstances shall be determined by any court
of competent jurisdiction to be invalid and unenforceable to
any extent, the remainder of this Agreement or the application
of such provision to such person or circumstances, other than
those as to which it is so determined invalid or unenforceable,
shall not be affected thereby, and each provision hereof shall
be valid and shall be enforced to the fullest extent permitted
by law, except that, if as a result thereof, the consideration
to be paid to Seller under this Agreement is diminished in any
material respect Seller ' shall have the option, upon written
notice to Purchaser, to terminate this Agreement.
C. This Agreement shall be construed and enforced in
accordance with the laws of the State of Illinois.
Purchaser may not assign this Agreement without first
obtaining Seller's written consent, which consent may be
withheld in Seller's sole discretion. Any assignment in
contravention of this provision shall be void. No assignment
shall release the Purchaser herein named from any obligation or
liability under this Agreement. If Purchaser requests Seller's
written consent to any assignment, Purchaser shall (i) notify
Seller in writing of the proposed assignment; (ii) provide
Seller with the name and address of the proposed assignee;
(iii) provide Seller with financial information including
financial statements of the proposed assignee; and (iv) provide
Seller with a copy of the proposed assignment.
E. This Agreement shall be binding and inure to the
benefit of Purchaser and Seller and their successors and
permitted assigns.
F. Seller or Purchaser shall make no public disclosure
of the terms of this transaction without the prior written
consent of the other party hereto, except as may be required by
law or applicable governmental regulation. Purchaser shall
continue to comply with the confidentiality requirements set
forth in any letter of intent or confidentiality agreement
previously entered into between Seller and Purchaser (or an
affiliate of Purchaser), and Seller and Purchaser shall not
(without first obtaining the written consent of the other party
hereto, which shall not be unreasonably withheld or delayed)
disclose to any third party any information or data with
respect to the Property, except such disclosure as may be
expressly contemplated or permitted by this Agreement.
G. The captions in this Agreement are inserted only as a
matter of convenience and for reference and in no way define,
limit or describe the scope of this Agreement or the scope or
content of any of its provisions.
H. In the event of any litigation arising out of this
Agreement, in addition to any other rights or remedies
specified herein, the prevailing party shall be entitled to its
reasonable attorneys' fees and costs, whether an appeal or
otherwise; provided, however, that such fees and costs shall
not exceed Two Hundred Thousand Dollars ($200,000), which cap
shall, in Seller's case, not be included in or considered as a
part of the aggregate monetary limitation on Seller's
liability contained in Section 8.G hereof.
I. When used in this Agreement, the term "Business Day"
shall mean any day when national banks located in Chicago,
Illinois are open for business.
J. Nothing contained in this Agreement shall be
construed to create a partnership or joint venture between the
parties or their successors in interest or any other
relationship other than seller and purchaser.
K. Time is of the essence of this Agreement.
L. This Agreement may be executed and delivered in any
number of counterparts, each of which so executed and delivered
shall be deemed to be an original and all of which shall
constitute one and the same instrument.
M. Purchaser and Seller agree not to record this
Agreement or any memorandum thereof.
N. No failure or delay by a party to exercise any right
it may have by reason of the default of the other party shall
operate as a waiver of default or as a modification of this
Agreement or shall prevent the exercise of any right by the
first party while the other party continues to be so in
default.
O. For the purpose of complying with Internal Revenue
Service reporting requirements for this transaction, the Title
Company shall be obligated to prepare and file the 1099-S form
(and any necessary supporting documentation) and Seller and
Purchaser shall cooperate with any requests from the Title
company in connection therewith.
P. The agreements of Seller contained herein shall only
be enforceable (subject to all limitations on liability
contained in this Agreement) against the assets of Seller. By
executing this Agreement (i) Purchaser agrees to look solely to
the assets of Seller (subject to all limitations on liability
contained in this Agreement) for the enforcement of its rights
hereunder, and (ii) Purchaser hereby waives any claim or any
right to proceed for the enforcement of any of its rights
hereunder against JMB Realty Corporation, a Delaware
corporation, or any subsidiary or affiliate thereof, in their
personal or corporate capacities.
Purchaser (on behalf of itself, its direct and
indirect partners and affiliates and all officers, directors,
employees, trustees, advisors, agents, shareholders or
contractors of any of the foregoing), agrees and acknowledges
that the obligations of Seller under this Agreement do not
constitute personal obligations of the direct or indirect
partners of Seller or their respective officers, directors,
trustees, advisors, agents, shareholders, employees or
contractors, and that Purchaser shall look solely to the assets
of Seller for satisfaction of any liability of Seller in
respect of this Agreement and the transactions and documents
contemplated under this Agreement, and will not seek recourse
against any individuals unless and to the extent Seller has
distributed all of its assets to such individuals from and
after the date of this Agreement, in which case Purchaser shall
be entitled to seek recourse against such individuals to extent
that they received such distributions. For purposes of this
Agreement, neither the negative capital account of any
constituent partner in Seller, nor any obligation of any
constituent partner in Seller to restor a negative capital
account or to contribute capital to Seller or to any other
constituent partner in Seller, shall at any time be deemed to
be the property or an asset of Seller or any such other
constituent partner (and neither Purchaser nor any of its
successors or permitted assignees shall have the right to
collect, enforce or proceed against or with respect to any such
negative capital account or partner's obligation to restore or
contribute).
Q. Seller and Purchaser understand that the tenant
improvements required to be constructed under the Ameritech
lease (the "Ameritech Tenant Improvements") have not yet been
completed and that leasing commissions in connection with the
Ameritech lease have not been fully paid. Seller agrees, as
post-closing obligations: (i) to pay or reimburse, as and when
due under the Ameritech lease, any tenant improvement
allowance, cost or expense required to be paid or reimbursed by
landlord, and concurrently to deliver to Purchaser evidence of
such payment; (ii) to pay, as and when due, any leasing
commissions payable in connection with the initial term of the
Ameritech lease and to deliver to Purchaser evidence of such
payment; and (iii) to indemnify, protect, reimburse, defend and
hold Purchaser harmless from and against any and all loss,
cost, expense, charge, liability, or damage resulting from
Seller's failure to perform its obligations under (i) and (ii),
which indemnity shall survive the Closing and transfer of the
Property to Purchaser and shall expire upon satisfaction of the
oblegations of Seller under (i) and (ii). In addition to the
other conditions to Closing expressly set forth in this
Agreement, it shall be a condition to Purchaser's obligation to
close the transaction contemplated hereby that Purchaser
receives at or before Closing written confirmation addressed to
Purchaser and signed by Ameritech stating that Ameritech has
accepted possession of the premises and, notwithstanding any
provisions of the Lease to the contrary, landlord has no
obligation to construct or install any improvements or
alterations in the premises [provided that such estoppel may
describe landlord's obligations to pay for tenant improvement
costs].
R. The submission by Seller to Purchaser of this
Agreement in unsigned form shall be deemed to be a submission
solely for Purchaser's consideration and not for acceptance and
execution. Such submission shall have no binding force and
effect, shall not constitute an option, and shall not confer
any rights or impose any obligations upon Purchaser,
irrespective of any reliance thereon, change of position or
partial performance. The submission by Seller of this
Agreement for execution by Purchaser and the actual execution
and delivery thereof by Purchaser to Seller shall similarly
have no binding force and effect on Seller unless and until
Seller shall have executed this Agreement and a counterpart
thereof shall have been delivered to Purchaser.
S. Seller acknowledges that Purchaser has formed a land
trust to take title to the Property. Accordingly, Seller shall
deed the Property and assign the Leases to Purchaser's land
trust as shown on Exhibit C attached hereto; provided, however,
that the conveyance of the Property and the Leases to such land
trust by Seller shall not relieve or terminate any obligations
or indemnifications of Purchaser or Seller as set forth in this
Agreement which survive the Closing.
14. NOTICES.
Any notices or requests required or permitted to be given
hereunder shall be (i) hand delivered, or (ii) sent by Federal
Express or similar overnight service for next business day
delivery, (iii) sent by U.S. certified mail, return receipt
requested, or (iv) sent by facsimile transmission, in all cases
addressed to the parties at their respective addresses as
follows:
If to Seller:<PAGE>
Carlyle Income Plus, Ltd.
JMB Realty Corporation
900 North Michigan Avenue
Chicago, Illinois 60611
Attn:Brian Ellison
Fax No.: 312-915-1970
With a copy to:
With a copy to:
If to Purchaser:<PAGE>
Stanley Warnick
Richard Ellis, L.L.C.
Three First National Plaza
Suite 1750
Chicago, Illinois 60602
Fax No.: 312-899-0923
Wildman, Harrold, Allen & Dixon
225 West Wacker Drive, 26th Floor
Chicago, IL 60606
Attn: Robert W. Newman, Esq.
Fax No.: 312-201-2555
AMB Retail Income Fund, Inc.
c/o AMB Institutional Realty Advisors '
Inc.
505 Montgomery Street
San Francisco, California 94111
Attn: Mohammad Barzegar
Fax No.: 415-394-9001
With a copy to:<PAGE>
Sheppard, Mullin, Richter & Hampton
4 Embarcadero Center, 17th Floor
San Francisco, CA 94111
Attn: Robert A. Thompson, Esq.
Fax No.: 415-434-3947
or in each case to such other address as either party may from
time to time designate by giving notice in writing to the other
party.
15. ERISA
A. Seller represents and warrants to Purchaser that
Seller is not an "employee benefit plan" as that term is
defined in Section 3(3) of the Employee Retirement Income
Security Act of 1974, as amended ("ERISA"), and that the
Property is not deemed to be "plan assets" as that term is
defined under the plan asset regulations found at 29 C.F.R.
Section 2510.3-101.
B. Purchaser represents and warrants to Seller that the
source of the funds used to acquire the Property are not assets
of any employee benefit plan subject to ERISA.
IN WITNESS WHEREOF, Seller and Purchaser have executed and
delivered this Agreement as of the date first written above,
being the date inserted by Seller as the date of its execution
and delivery hereof to Purchaser.
SELLER
By: Carlyle Income Plus, Ltd.,
an Illinois limited
partnership
By: JMB Realty Corporation,
a Delaware corporation,
a general partner
By ____________________
____________________
[Printed Name and Title]
<PAGE>
PURCHASER
By: AMB Retail Income Fund,
Inc., a Maryland
corporation
By: AMB Institutional Realty
Advisors, Inc., a
California corporation
By ____________________
____________________
[Printed Name and Title]
<PAGE>
LIST OF EXHIBITS
Exhibit A -- Legal Description of Land
Exhibit B -- Deposit Escrow Agreement
Exhibit C -- Limited Warranty Deed
Exhibit D -- Bill of Sale
Exhibit E -- Assignment and Assumption Agreement
Exhibit F -- Form of Tenant Estoppel Agreement
Exhibit G -- Description of Existing Environmental Reports
Exhibit H -- Forms of Federal Withholding Certificate
<PAGE>
Exhibit I -- Intentionally Deleted
Exhibit J -- Intentionally Deleted
Exhibit K -- Form of Surveyor's Certificate
Exhibit L -- Rent Roll
Exhibit M -- Notice of Lease Assignment
Exhibit N -- Seller's Warranty Certificate
Exhibit O -- List of Service Contracts
Exhibit P -- Due Diligence Items
<PAGE>
EXHIBIT A
DESCRIPTION OF REAL PROPERTY
<PAGE>
DEPOSIT ESCROW AGREEMENT
TO: Mr. Lawrence Vaughan
Commonwealth Title Insurance Company
30 North LaSalle Street, Suite 3440
Chicago, IL 60602
RE: Escrow Trust No. 96-06-0286
DATE: November 21, 1996
16. PARTIES
A. Seller: Carlyle Income Plus, Ltd.
c/o JMB Realty Corporation
900 North Michigan Avenue
Chicago, Illinois 60611
Attn: Brian Ellison
B. Purchaser: AMB Retail Income Fund, Inc.
c/o AMB Institutional Realty Advisors, Inc.
505 Montgomery Street
San Francisco, California 94111
Attention: Mohammad Barzegar
C. Escrow
Holder: Commonwealth Title Insurance Company
30 North LaSalle Street, Suite 3440
Chicago, IL 60602
Attention: Larry Vaughan
D. Purchaser's
Counsel: Sheppard, Mullin, Richter & Hampton
4 Embarcadero Center, 17th Floor
San Francisco, CA 94111
Attn: Rebecca V. Hlebasko, Esq.
E. Seller's
Counsel: Wildman, Harrold, Allen & Dixon
225 West Wacker Drive, 26th Floor
Chicago, IL 60606
Attn: Robert W. Newman, Esq.
17. PRELIMINARY STATEMENTS
A. Concurrently with the execution and delivery of this
Deposit Escrow Agreement, Seller and Purchaser have executed
and delivered a certain Agreement for Purchase and Sale of Real
Estate and Related Property (hereinafter referred to as the
"Agreement"), a copy of which has been provided to Escrow
Holder. Under the terms of the Agreement, Seller has agreed to
sell, and Purchaser has agreed to buy, a certain parcel of land
and improvements located in Cook County, Illinois.
B. Pursuant to Section 2.A of the Agreement, Purchaser is
required to deposit with Escrow Holder the sum of One Hundred
Fifty Thousand Dollars ($150,000) (hereinafter referred to as
the "Earnest Money"), to be held by Escrow Holder pursuant to
the terms and provisions of this Deposit Escrow Agreement.
C. Subject to the applicable terms and provisions of the
Agreement, the Earnest Money and any interest earned thereon,
are to be applied towards the Cash Balance at Closing as set
forth in the Agreement.
18. DEPOSIT OF EARNEST MONEY; INVESTMENT DIRECTIONS
A. Concurrently herewith, Purchaser has deposited the
Earnest Money with Escrow Holder in accordance with the
Agreement.
B. Escrow Holder is hereby authorized and directed to invest
the Earnest Money or any portion thereof in a money market
account at a federally insured national bank in Chicago,
Illinois, or otherwise in accordance with the written direction
of Seller and Purchaser (or Seller's and Purchaser's Counsel).
Unless otherwise provided pursuant to the provisions of Section
IV hereof, such investment shall be for the benefit of
Purchaser. The Federal Taxpayer Identification Number for
Purchaser is ______________.
19. INSTRUCTIONS
A. Escrow Holder is instructed to continue to hold and
invest the Earnest Money, together with all interest earned
thereon, as provided in Section III.B. above, until Escrow
Holder is in receipt of (i) a joint written direction from
Seller (or Seller's Counsel) and Purchaser (or Purchaser's
Counsel), or (ii) an order, judgment or decree addressed to
Escrow Holder which shall have been entered or issued by any
court and which shall determine the disposition of the Earnest
Money and all interest earned thereon.
B. Any party delivering a notice required or permitted
hereunder shall simultaneously deliver copies of such notice to
all parties listed in Section I of this Deposit Escrow
Agreement. All notices required herein shall be sent in
accordance with Section 14 of the Agreement.
C. Except as otherwise expressly set forth in this
Agreement, Escrow Holder shall disregard any and all notices or
warnings given by any of the parties hereto.
D. In case Escrow Holder obeys or complies with any order,
judgment or decree of any court with respect to the Earnest
Money, Escrow Holder shall not be liable to any of the parties
hereto or any other person, firm or corporation 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 regarding this Deposit Escrow Agreement
to which Escrow Holder is or may be at any time a party, Seller
and Purchaser shall each be liable for one-half of all such
costs, fees and expenses incurred or sustained by Escrow Holder
and shall forthwith pay the same to Escrow Holder upon demand;
provided, however, that in the event Escrow Holder is made a
party to any suit or proceeding between Seller and Purchaser,
the prevailing party in such suit or proceeding shall have no
liability for the payment of Escrow Holder's costs, fees and
expenses.
E. Escrow Holder is not to be held responsible for any loss
of the principal or interest which may be incurred as a result
of making the investments or redeeming said investment for the
purposes of this Deposit Escrow Agreement.
F. In no case shall the Earnest Money be surrendered except
(i) in the manner specifically described in this Deposit Escrow
Agreement; (ii) on an order signed by Seller (or Seller's
Counsel) and Purchaser (or Purchaser's Counsel); or (iii) in
obedience to the process of order of a court as aforesaid.
G. All fees of Escrow Holder shall be charged one-half to
Seller and one-half to Purchaser.
H. Except as to deposits of funds for which Escrow Holder
has received express written direction from Seller and
Purchaser (or Seller's and Purchaser's Counsel) concerning
investment or other handling, the parties hereto agree that
Escrow Holder shall be under no duty to invest or reinvest any
portion of the Earnest Money at any time held by it hereunder;
provided, however, nothing herein shall diminish Escrow
Holder's obligation to apply the full amount of the Earnest
Money in accordance with the terms of this Deposit Escrow
Agreement.
20. MISCELLANEOUS
A. Any order, judgment or decree requiring Escrow Holder to
disburse the Earnest Money shall not be binding upon Purchaser
or Seller as to the ultimate disposition of the Earnest Money
unless and until a final, non-appealable order, judgment, or
decree is entered by a court having jurisdiction thereof.
B. This Deposit Escrow Agreement and all provisions hereof
shall be binding upon and shall inure to the benefit of the
parties hereto and their respective legal representatives,
successors and permitted assigns.
C. This Deposit Escrow Agreement shall not supersede the
Agreement and in case of any conflict or inconsistency between
the rights and obligations of Seller and Purchaser hereunder
and under the Agreement, the provisions of the Agreement shall
govern and control.
D. The agreements of Seller contained herein shall only be
enforceable against the property of Seller for the payment of
any claims hereunder. By executing this instrument, (i)
Purchaser and Escrow Holder agree to look solely to the
property of Seller for the enforcement of their rights
hereunder, and (ii) Purchaser and Escrow Holder hereby waive
any claim or any right to proceed for the enforcement of any of
their respective rights hereunder against any officer, partner,
or agent of Seller or any subsidiary or affiliate thereof in
their personal or corporate capacities.
SELLER
By: Carlyle Income Plus, Ltd.,
an Illinois limited
partnership
By________________________
________________________
[Printed Name and Title]
<PAGE>
PURCHASER
By: AMB Retail Income Fund,
Inc., a Maryland
corporation
By ________________________
________________________
[Printed Name and Title]
Accepted this _____ day of
November, 1996.
Commonwealth Title Insurance Company
By _________________________________
_________________________________
[Printed Name and Title]
<PAGE>
EXHIBIT C
WHEN RECORDED MAIL TO:
Robert Thompson, Esq.
Sheppard, Mullin,
Richter & Hampton
4 Embarcadero Center,
17th Floor
San Francisco,
California 94111
<PAGE>
SPACE ABOVE THIS LINE FOR RECORDER'S
USE<PAGE>
MAIL TAX STATEMENTS
TO:
AMB RetailIncome Fund,
Inc.
505 Montgomery Street
San Francisco,
California 94111
Attn: M. Barzegar
<PAGE>
LIMITED WARRANTY DEED
THIS INDENTURE, made this ___ day of October, 1996,
by CARLYLE INCOME PLUS, LTD., a partnership existing under and
by virtue of the laws of the State of Illinois and duly
authorized to transact business in the State of Illinois
("Grantor"), whose address is c/o JMB Realty Corporation, 900
North Michigan Avenue, Chicago, Illinois 60611, and to THE
CHICAGO TRUST COMPANY, a corporation existing under and by
virtue of the laws of the State of Illinois, whose address is
171 North Clark Street, Chicago, Illinois 60601-3294, as
Trustee under the provisions of a Trust Agreement dated as of
October 30, 1996, known as Trust No. 1103967 ("Grantee"),
WITNESSETH that Grantor, for and in consideration of the sum of
Ten Dollars ($10.00) and other good and valuable consideration
in hand paid, by Grantee, the receipt whereof is hereby
acknowledged, and pursuant to its partners, by these presents
does REMISE, RELEASE, ALIEN AND CONVEY unto Grantee, FOREVER,
all of the following described improved real estate, situated
in the County of Cook and State of Illinois known and described
as follows, to wit:
See attached Exhibit A
Together with all and regular hereditaments and
appurtenances thereunto belonging, or in anywise appertaining,
and the reversion or reversions, remainder or remainders,
rents, issues and profits thereof, and all the estate, right,
title, interest, claim or demand whatsoever, of Grantor, either
in law or equity of, in and to the above-described premises,
with the hereditaments and appurtenances:
TO HAVE AND TO HOLD the said premises, above
described, with the appurtenances, unto Grantee, forever.
And Grantor, for itself, and its successors, does
covenant, promise and agree to and with Grantee, and
successors, that it has not done or suffered to be done,
anything whereby the said premises hereby granted are, or may
be, in any manner encumbered or charged, except, as herein
recited, and that it WILL WARRANT AND DEFEND, the said premises
against all persons lawfully claiming, or to claim the same,
by, through or under it, subject only to the exceptions set
forth on Exhibit B attached hereto.
IN WITNESS WHEREOF, said Grantor has caused its name
to be signed to these presents as of the date and year first
above written.
GRANTOR:
Carlyle Income Plus, Ltd., an
Illinois limited partnership
By ________________________
Its ________________________
[Printed Name and Title]
<PAGE>
EXHIBIT A
LEGAL DESCRIPTION
<PAGE>
EXHIBIT B
EXCEPTIONS TO TITLE
[Copy from Title Pro Forma]<PAGE>
EXHIBIT D
BILL OF SALE
CARLYLE INCOME PLUS, LTD., an Illinois limited
partnership ("Seller"), in consideration of ten dollars
($10.00) and other valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, does hereby sell,
assign, convey, transfer and set over to AMB RETAIL INCOME
FUND, INC., a Maryland corporation ("Purchaser"), all tangible
personal property owned by and in the possession of Seller and
used in connection with the operation and ownership of those
certain tracts of real estate located in Los Angeles County,
California and legally described in Exhibit A attached hereto
and made a part hereof, or within the improvements situated on
said tracts of real estate (such real estate along with the
improvements thereon are collectively called the "Property"),
including, but not limited to, all fixtures, attachments,
appliances, machinery, apparatus and equipment described in
Exhibit B attached hereto and made a part hereof, it being
understood that the enumeration of any specific articles of
property shall in nowise result in the exclusion of or be held
to exclude any items of property not specifically mentioned
(collectively, the "Personal Property"). The Personal Property
specifically excludes any property owned by Tenants or Property
Manager (as those terms are defined in the Purchase and Sale
Agreement described below).
Seller hereby represents and warrants to Purchaser
that the Personal Property is free and clear of all liens,
charges and encumbrances created by Seller, and that Seller has
full right, power and authority to sell the Personal Property
and to make this Bill of Sale.
Seller, for itself and its successors, agrees that it shall
warrant and defend the title to the Personal Property against
the lawful claims of all persons and entities whomsoever
claiming against the right, title and interest of Purchaser in
the Personal Property, or any part thereof, by, through or
under Seller, but not otherwise. All warranties of quality,
fitness and merchantability are hereby excluded.
All representations and warranties of Seller
contained herein shall be subject to all of the limitations,
terms, provisions and conditions that are contained in Section
8.G and 13.P of that certain Agreement For Purchase and Sale of
Real Estate and Related Property dated as of November 4, 1996
("Agreement Limitations").
<PAGE>
IN WITNESS WHEREOF, Seller has caused this Bill of
Sale to be executed and delivered this ____ day of _________,
1996.
SELLER:
Carlyle Income Plus, Ltd., an
Illinois limited partnership
By ________________________
Its ________________________
[Printed Name and Title]
<PAGE>
EXHIBIT A
LEGAL DESCRIPTION
<PAGE>
EXHIBIT B
DESCRIPTION OF PERSONAL PROPERTY
None
<PAGE>
EXHIBIT E
ASSIGNMENT AND ASSUMPTION AGREEMENT
THIS ASSIGNMENT AND ASSUMPTION AGREEMENT
("Assignment"), dated as of October __, 1996, by and between
CARLYLE INCOME PLUS, LTD., an Illinois limited partnership
("Assignor"), and THE CHICAGO TRUST COMPANY, an Illinois
corporation, as Trustee under the provisions of a Trust
Agreement dated as of October 30, 1996, known as Trust No.
1103967 ("Assignee").
W I T N E S S E T H:
WHEREAS, Assignor or Assignor's predecessors in title
have heretofore entered into (i) certain leases with tenants
covering space located in, and (ii) certain service contracts
relating to (all of the said leases are sometimes collectively
referred to herein as the "Leases" and all of said service
contracts are sometimes collectively referred to herein as the
"Service Contracts") those certain buildings located on real
property situated in Cook County, Illinois and being more
particularly described on Exhibit A attached hereto and made a
part hereof ("Property");
WHEREAS, the Leases consist of those leases
identified on Exhibit B attached hereto and made a part hereof
and the Service Contracts and Warranties consist of those
contracts and warranties identified on Exhibit C attached
hereto and made a part hereof;
WHEREAS, on the date hereof Assignee is acquiring
various real and personal property constituting or situated on
the Property, and Assignee desires to purchase from Assignor,
and Assignor desires to sell and assign to Assignee, all of
Assignor's right, title and interest in (i) the Leases, (ii)
the Service Contracts, (iii) all plans and specifications for
the Property in the possession of Assignor ("Plans"), (iv) any
warranties and permits pertaining to the Property currently in
effect and in the possession of Assignor ("Permits and
Warranties"), (v) the right, if any, to use any trade name now
used in connection with the Property ("Name Right"), (vi)
security deposits and prepaid rents under the Leases, to the
extent not prorated pursuant to the Purchase and Sale Agreement
described below ("Deposits"), (vii) guarantees of the Leases
("Guarantees"), (viii) "Utility Contracts", and (ix) copies of
any existing books, records and documents and any intangible
property (other than accounts, accounts receivable and
proprietary computer software) desired by Assignee pertaining
to the operation, maintenance, repair and leasing of the
Property in Assignor's possession (collectively, the
"Miscellaneous Intangible Property").
NOW, THEREFORE, for and in consideration of the
purchase and sale of the Property, the agreements and covenants
herein set forth, and other good and valuable consideration on
this day paid and delivered by Assignee to Assignor, the
receipt and sufficiency of which are hereby acknowledged and
confessed by Assignor, Assignor does hereby GRANT, CONVEY and
ASSIGN unto Assignee, all of Assignor's right, title and
interest in and to the Leases, the Service Contracts, the
Plans, the Permits and Warranties, the Name Right, the
Deposits, the Guarantees, the Utility Contracts, and the
Miscellaneous Intangible Property.
1. It is specifically agreed that Assignor shall not be
responsible to (i) the lessees under the Leases, or (ii) the
other parties under the Service Contracts, for the discharge
and performance of any and all duties and obligations to be
performed and/or discharged by Assignor thereunder after the
date hereof. By accepting this Assignment and by its execution
hereof, Assignee hereby assumes and agrees to perform all of
the terms, covenants and conditions of the Leases and Service
Contracts on the part of Assignor therein required to be
performed, from and after the date hereof, but not prior
thereto, including but not limited to the obligation to repay
in accordance with the terms of the Leases to the lessees
thereunder any and all security and prepaid rental deposits and
all interest thereon. Assignee covenants and agrees to
indemnify, protect, defend and hold harmless Assignor from and
against any and all claims, actions, losses, costs and expenses
(including reasonable attorneys' fees and costs) existing in
favor of or asserted by (i) the lessees under the Leases, or
(ii) the other parties under the Service contracts, arising out
of or relating to Assignee's failure to perform any of the
obligations of Assignor under any of the Leases or Service
Contracts on or after the date hereof.
2. Subject to the limitations provided hereinbelow and
in Section 8.G and 13.P of that certain Agreement for Purchase
and Sale of Real Estate and Related Property dated as of
November 4, 1996 between Assignor and AMB Retail Income Fund,
Inc., a Maryland corporation, beneficiary of Assignee
("Agreement Limitations"), Assignor hereby agrees to indemnify,
protect, defend and hold harmless Assignee from and against any
and all claims, actions, losses, costs and expenses (including
reasonable attorneys' fees and costs) existing in favor of or
asserted by (i) the lessees under the Leases, or (ii) the other
parties under the Service Contracts, arising out of or relating
to Assignor's failure to perform any of the obligations of
Assignor under any of the Leases or Service Contracts prior to
the date hereof.
3. All of the covenants, terms and conditions set forth
herein shall be binding upon and shall inure to the benefit of
the parties hereto and their respective legal representatives,
successors and assigns.
<PAGE>
4. This Assignment may be executed in any number of
counterparts, which together shall constitute one instrument;
provided that this Assignment shall not be effective unless and
until executed by all parties hereto.
IN WITNESS WHEREOF, Assignor and Assignee have caused
this Assignment and Assumption Agreement to be executed
effective as of the date first set forth above.
ASSIGNOR:
CARLYLE INCOME PLUS, LTD., an Illinois
limited partnership
By _________________________________
Its
_________________________________
[Printed Name and Title]
ASSIGNEE:
THE CHICAGO TRUST COMPANY, an Illinois
corporation, as Trustee under the
provisions of a Trust Agreement dated
October 30, 1996, known as Trust No.
1103967
By _________________________________
Its
_________________________________
[Printed Name and Title]
<PAGE>
EXHIBIT A
LEGAL DESCRIPTION
<PAGE>
EXHIBIT B
LIST OF LEASES
SUITE TENANT NAME SQUARE FOOTAGE
A1 Super Gap 12,933
A2 North Community Bank 3,500
A3 The Fashion Wave 3,000
A4 Ameritech 3,535
ANCHOR Toys R Us 38,580
B1 Payless Shoe Source 3,050
B2/3 Hit or Miss 3,610
B4 Number One Chop Suey 1,050
B5 City Looks Salon 1,335
B6 Jackson Hewitt 765
B7 Radio Shack 2,560
B8 16-Plus 3,260
ANCHOR Dominick's Finer Foods 50,094
ANCHOR Walgreen's 12,000
<PAGE>
EXHIBIT A
LIST OF SERVICE CONTRACTS
Vendor Name Service Type Expiration
Millard Maintenance
ServiceCo. Cleaning monthly
Chalet Landscaping- monthly
summer
Special Operations
Assoc., Inc. Security 30 days notice
Groot Waste Services Trash Removal monthly (expires 1/96)
LIST OF WARRANTIES
Warranty from Climate Service, Inc. relating to a
rooftop unit, per a proposal dated April 23, 1996 and accepted
by Urban Retail Properties May 16, 1996.<PAGE>
EXHIBIT F
FORM OF TENANT ESTOPPEL
<PAGE>
EXHIBIT G
EXISTING ENVIRONMENTAL REPORTS
1. Draft Environmental Assessment Report, prepared by Mr.
Michael W. Ander of Dames & Moore on July 23, 1987.
2. Phase I Environmental Assessment, prepared by Conilee
Hennersdorf of Law Engineering on July 30, 1996.
<PAGE>
EXHIBIT H
FEDERAL WITHHOLDING CERTIFICATE
CERTIFICATE OF TRANSFEROR OTHER
THAN AN INDIVIDUAL
(FIRPTA Affidavit)
Section 1445 of the Internal Revenue Code provides that a
transferee of a U.S. real property interest must withhold tax
if the transferor is a foreign person. To inform the
transferee that withholding of tax is not required upon the
disposition of a U.S. real property interest by Carlyle Income
Plus, Ltd., an Illinois limited partnership ("Transferor"), the
undersigned hereby certifies the following on behalf of
Transferor:
1. Transferor is not a foreign corporation, foreign
partnership, foreign trust, or foreign estate (as those terms
are defined in the Internal Revenue Code and Income Tax
Regulations);
2. Transferor's U.S. employer identification number
is ____________; and
3. Transferor's office address is Carlyle Income
Plus, Ltd., c/o JMB Realty Corporation, 900 Morth Michigan
Avenue, Chicago, IL 60611.
Transferor understands that this certificate may be
disclosed to the Internal Revenue Service by the transferee and
that any false statement contained herein could be punished by
fine, imprisonment, or both.
Under penalties of perjury, I declare that I have
examined this certificate and to the best of my knowledge and
belief it is true, correct and complete, and I further declare
that I have the authority to sign this document on behalf of
Transferor.
Dated: ___________ __, 1996
CARLYLE INCOME PLUS, LTD., an Illinois
limited partnership
By _________________________________
Its
_________________________________
[Printed Name and Title]
<PAGE>
EXHIBIT I and J
[Intentionally Deleted]
<PAGE>
EXHIBIT K
<PAGE>
EXHIBIT L
RENT ROLL
SUITE TENANT NAME SQUARE FOOTAGE
A1 Super Gap 12,933
A2 North Community Bank 3,500
A3 The Fashion Wave 3,000
A4 Ameritech 3,535
ANCHOR Toys R Us 38,580
B1 Payless Shoe Source 3,050
B2/3 Hit or Miss 3,610
B4 Number One Chop Suey 1,050
B5 City Looks Salon 1,335
B6 Jackson Hewitt 765
B7 Radio Shack 2,560
B8 16-Plus 3,260
ANCHOR Dominick's Finer Foods 50,094
ANCHOR Walgreen's 12,000
<PAGE>
EXHIBIT M
NOTICE OF LEASE ASSIGNMENT
Date: October __, 1996
______________________
______________________
______________________
______________________
Ladies and Gentlemen:
We are pleased to inform you of the completion of the
acquisition of the property located at ______________, Illinois
to AMB Retail Income Fund, Inc. ("AMB"). In connection with
such acquisition, your Lease has been assigned to AMB and your
security deposit, if any, has been transferred to AMB. We want
you to know that AMB values you as a tenant in the property.
AMB's goal is to provide you with the highest quality of
service possible.
Your check for all future payments due under your
Lease should be made payable to AMB Industrial Income Fund,
Inc. and addressed as follows:
_________________________
_________________________
_________________________
_________________________
As prescribed in your Lease, any notices should be
addressed to the Landlord as follows:
AMB Retail Income Fund, Inc.
505 Montgomery Street
San Francisco, California 94111
Attn: _______________
AMB maintains an active role in the properties in its
portfolio and AMB values its tenant relationships. Please do
not hesitate to call AMB at any time if it can be of assistance
to you.
Very truly yours,
CARLYLE INCOME PLUS, LTD., an Illinois
limited partnership
By _________________________________
Its
_________________________________
[Printed Name and Title]
AMB RETAIL INCOME FUND, INC.,
a Maryland corporation
By _________________________________
Its
_________________________________
[Printed Name and Title]
Telephone No. (415) 394-9000
<PAGE>
EXHIBIT N
CERTIFICATE
THIS CERTIFICATE is made this day of October __, 1996
by CARLYLE INCOME PLUS, LTD. ("Seller") for the benefit of AMB
RETAIL INCOME FUND, INC., a Maryland corporation ("Purchaser").
Recitals
E. Seller and Purchaser entered into an Agreement for
Purchase and Sale of Real Estate and Related Property dated as
of November 4, 1996 ("Agreement"), which pertains to the sale
of certain Property more particularly described therein. All
capitalized terms used herein shall have the meanings given to
them in the Agreement.
F. Seller gives this Certificate to Purchaser in
accordance with the requirements of Section 10.A.11 of the
Agreement.
Certification
NOW, THEREFORE, in consideration of the transactions
contemplated by the Agreement, Seller does hereby certify to
Purchaser that, to Seller's Knowledge and except as may be set
forth in Exhibit A hereto, the representations and warranties
of Seller which are contained in Section 8.A of the Agreement
are true and correct as stated in the Agreement as of the date
hereof. This Certification is subject to all of the applicable
limitations contained in Section 8.G and 13.P of the Agreement,
and in no event shall this Certification give Purchaser any
greater rights against Seller than Purchaser has pursuant to
such Section 8.G and 13.P.
CARLYLE INCOME PLUS, LTD., an Illinois
limited partnership
ByBy _______________________________
Its _______________________________
[Printed Name and Title]
<PAGE>
EXHIBIT A
WARRANTY EXCEPTION LIST
None.<PAGE>
EXHIBIT O
LIST OF SERVICE CONTRACTS
Vendor Name Service Type Expiration
Millard Maintenance ServiceCo. Cleaning monthly
Chalet Landscaping- monthly
summer
Special Operations Assoc., Inc. Security 30 days
notice
Groot Waste Services Trash Removal monthly
(expires 1/96)
EXHIB. 10.2
FIRST AMENDMENT TO AGREEMENT FOR PURCHASE
AND SALE OF REAL ESTATE AND RELATED PROPERTY
--------------------------------------------
THIS FIRST AMENDMENT TO AGREEMENT FOR PURCHASE AND SALE OF
REAL ESTATE AND RELATED PROPERTY (this "Amendment") is dated as
of the 6th day of December, 1996, by and between CARLYLE INCOME
PLUS, LTD., an Illinois limited partnership ("Seller") and AMB
RETAIL INCOME FUND, INC., a Maryland corporation ("Purchaser").
WITNESSETH:
---------------
WHEREAS, Seller and Purchaser entered into that certain
Agreement for Purchase and Sale of Real Estate and Related
Property dated as of November 19, 1996 (the "Agreement"),
pursuant to which Agreement Seller agreed to sell, and Purchaser
agreed to purchase, certain real property located in the City of
Chicago, County of Cook, State of Illinois, commonly known as
the Riverview Plaza Shopping Center, as legally described on
Exhibit A to the Agreement (the "Premises"); and
WHEREAS, Section 13Q of the Agreement provides that Seller
will be responsible, as a post-closing obligation, for
reimbursing Ameritech Mobile Communications Inc., a tenant at
the Premises ("Ameritech"), for certain improvements to
Ameritech's leased premises; and
WHEREAS, Seller and Purchaser desire to amend Section 13Q
of the Agreement to provide that Seller is not obligated for
reimbursing Ameritech, but rather for the payment by or on<PAGE>
behalf of Seller of
certain improvements to Ameritech's leased premises.
NOW, THEREFORE, in consideration of these premises, of
the mutual covenants set forth herein, and for other good and
valuable consideration, the receipt and sufficiency of which is
hereby acknowledged by the parties hereto, Seller and Purchaser
hereby agree as follows:
1. All capitalized terms used herein and not defined
shall have the same meaning as set forth in the Agreement.
2. Section 13Q of the Agreement is hereby amended and
restated in its entirety as follows:
"Seller and Purchaser agree that certain tenant
improvements required to be constructed by landlord under
the Ameritech lease (the "Ameritech Tenant Improvements")
have been completed but not yet fully paid, and that
leasing commissions in connection with the Ameritech lease
have not been fully paid. Seller agrees, as post-closing
obligations: (i) to pay, or cause to be paid, any and all
costs and expenses required to be paid in connection with
the Ameritech Tenant Improvements, and to deliver to
Purchaser evidence of such payment; (ii) to pay, as and
when due, any leasing commissions payable in connection
with the initial term of the Ameritech lease, and to
deliver to Purchaser evidence of such payment; and (iii) to
indemnify, protect, reimburse, defend and hold Purchaser
harmless from and against any and all loss, cost, expense,
charge, liability or damage resulting from Seller's failure<PAGE>
to perform its obligations under (i) and (ii) hereinabove,
which indemnity shall survive the Closing and transfer of
the Property to Purchaser, and shall expire upon
satisfaction of the obligations of Seller under (i) and
(ii) hereinabove. In addition to the other conditions to
Closing expressly set forth in this Agreement, it shall be
a condition of Purchaser to close the transaction
contemplated hereby that Purchaser receives at or before
Closing an estoppel certificate from Ameritech in
accordance with the provisions of Section 10E(ii) of this
Agreement."
3. Except as specifically set forth herein, all other
terms and conditions as set forth in the Agreement shall
remain in full force and effect, and are not otherwise
amended, altered, modified or revised.
4. This Amendment may be signed in any number of
counterparts, all of which when taken together shall
constitute one instrument.
IN WITNESS WHEREOF, Seller and Purchaser have caused this
First Amendment to Agreement for Purchase and Sale of Real
Estate and Related Property to be executed as of the day and
year first above written.
<PAGE>
SELLER: PURCHASER:
- - ------ ---------
CARLYLE INCOME PLUS, LTD., AMB RETAIL INCOME FUND, INC.,
an Illinois limited partnership a Maryland corporation
By:
-------------------------- By: ---------------------
Its: Its:
------------------------ ---------------------<PAGE>
EXHIB. 10.3
SECOND AMENDMENT TO AGREEMENT FOR PURCHASE
AND SALE OF REAL ESTATE AND RELATED PROPERTY
------------------------------------------
THIS SECOND AMENDMENT TO AGREEMENT FOR PURCHASE AND SALE OF REAL
ESTATE AND RELATED PROPERTY (this Amendment) is dated as of
the 11th day of December, 1996, by and between CARLYLE INCOME
PLUS, LTD., an Illinois limited partnership (Seller) and AMB
RETAIL INCOME FUND, INC., a Maryland corporation (Purchaser)
WITNESSETH:
----------
WHEREAS, Seller and Purchaser entered into that certain
Agreement for Purchase and Sale of Real Estate and Related
Property dated as of November 19, 1996 (the Agreement), which
Agreement was amended by that certain First Amendment to
Agreement for Purchase and Sale of Real Estate and Related
Property dated as of December 6, 1996 (the First Amendment)
(the Agreement as amended by the First Amendment is hereinafter
referred to as the Agreement), pursuant to which Agreement
Seller agreed to sell, and Purchaser agreed to purchase, certain
real property located in the City of Chicago, County of Cook,
State of Illinois, commonly known as the Riverview Plaza
Shopping Center, as legally described on Exhibit A to the
Agreement (the Premises); and
WHEREAS, Tandy Corporation, a Delaware corporation, d/b/a
Radio Shack (Radio Shack), entered into a lease dated February
9, 1981 with Seller's predecessor-in-interest (the lease, as may
have been amended, is hereinafter referred to as the Lease),
for certain space at the Premises designated as Store B-7 in
the Lease and containing approximately 2560 square feet (the
Leased Premises); and
WHEREAS, the Term of the Lease expired June 30, 1996; and
WHEREAS, Seller has negotiated with and delivered to Radio
Shack a renewal lease for execution on behalf of Radio Shack
(the Renewal Lease), which Renewal Lease contains terms and
provisions that have been approved by Radio Shack, but, as of
the date hereof, Radio Shack has not delivered to Seller an
executed Renewal Lease; and
WHEREAS, Seller apprised Purchaser during the Due Diligence
Period of the status of the Lease and the Renewal Lease, and
Purchaser reviewed and approved the terms and provisions of the
Renewal Lease; and
WHEREAS, in light of the Closing of the transaction
contemplated under the Agreement and that Radio Shack has not as
of the date hereof delivered to Seller an executed Renewal
Lease, Purchaser has requested that Seller indemnify Purchaser
with respect to certain costs and expenses which may arise in
the event Radio Shack does not execute and deliver the Renewal
Lease; and
<PAGE>
WHEREAS, Seller has agreed to provide such indemnification
to Purchaser, in accordance with and subject to the terms and
provisions set forth hereinbelow.
NOW, THEREFORE, in consideration of these premises, of the
mutual covenants set forth herein, and for other good and
valuable consideration, the receipt and sufficiency of which is
hereby acknowledged by the parties hereto, Seller and Purchaser
hereby agree as follows:
1. All capitalized terms used herein and not defined
shall have the same meaning as set forth in the Agreement.
2. Seller and Purchaser hereby agree that in the event
Radio Shack ceases to occupy and vacates the Leased Premises
during the period from January 1, 1997 through June 30, 1997
(the Indemnification Period), Seller shall reimburse Purchaser
for certain costs and expenses as set forth below which
Purchaser may incur as a result thereof; provided, however, that
in no event shall the total of all such costs and expenses
exceed the sum of $75,000.00 (the Maximum Reimbursement
Amount):
(a) Minimum Rent (as defined in the Lease), equal to
$4,320.00 per month ($20.25/square foot), for a total of
$25,920.00 for the Indemnification Period (the Maximum
Minimum Rent Reimbursement Amount). The Maximum Minimum
Rent Reimbursement Amount shall be reduced for each month
Radio Shack occupies the Leased Premises during the
Indemnification Period. For example, if Radio Shack
occupies the Leased Premises from January, 1997 through
March, 1997, and thereafter Radio Shack vacates the Leased
Premises, then Seller's total liability for reimbursement
to Purchaser of Minimum Rent will be $12,960.00
($4,320.00/month x 3 months [April, 1997 - June, 1997] =
$12,960.00).
(b) Additional rent (including Tenant's Tax
Share and Tenant's Shopping Center Common Area Pro
Rata Share of the Shopping Center Common Area
Maintenance Costs, as such terms are defined in the
Lease), equal to $2,133.33 per month ($10.00/square
foot), for a total of $12,800.00 for the
Indemnification Period (the Maximum Additional Rent
Reimbursement Amount). The Maximum Additional Rent
Reimbursement Amount shall be reduced for each month
Radio Shack occupies the Leased Premises during the
Indemnification Period. For example, if Radio Shack
occupies the Leased Premises from January, 1997
through March, 1997, and thereafter Radio Shack
vacates the Leased Premises, Seller's total liability
for reimbursement to Purchaser of additional rent will
be $6,400.00 ($2,133.33/month x 3 months [April, 1997
- June, 1997] = $6,400.00).
(c) The amounts which may be due by Seller to
Purchaser pursuant to subsections 2(a) and (b)
hereinabove shall be prorated for any portion of any<PAGE>
month during which Radio Shack occupies the Leased
Premises. In the event Radio Shack vacates the Leased
Premises prior to the expiration of the Indemnification
Period and Purchaser is entitled to reimbursement from
Seller of Minimum Rent and additional rent in accordance
with the terms and provisions of subsections 2(a) and (b)
hereinabove, Purchaser shall submit a statement to Seller
setting forth the amount Purchaser calculates it is
entitled to receive from Seller. Provided Seller agrees
with Purchaser's calculations, Seller shall reimburse
Purchaser within ninety (90) days after receipt of
Purchaser's statement. If Seller does not agree with
Purchaser's calculations, Seller shall so notify Purchaser
in writing of its disagreement, and the parties shall
thereafter use reasonable efforts to agree upon an amount
due to Purchaser. Seller shall not be obligated or
required under any circumstances to reimburse Purchaser for
any statement received by Seller after July 31, 1997. In
no event shall the amount to be reimbursed by Seller to
Purchaser (i) under subsection 2(a) exceed the Maximum
Minimum Rent Reimbursement Amount, and (ii) under
subsection 2(b) exceed the Maximum Additional Rent
Reimbursement Amount.
(d) The cost of building out the Leased Premises for a new
tenant, the cost of such tenant improvement work not to
exceed the sum of $25,600.00 ($10.00/square foot x 2560
square feet = $25,600.00) (the Maximum TI Reimbursement
Amount). In the event Purchaser is required to perform
tenant improvement work at the Leased Premises for a new
tenant, Purchaser must submit copies of bills and
statements evidencing the actual costs incurred by
Purchaser in connection with such tenant improvement work
at the Leased Premises. All such bills and statements must
be received by Seller on or before December 31, 1997, and
Seller shall not be obligated or required under any
circumstances to reimburse Purchaser for any bills or
statements received by Seller after December 31, 1997.
Seller shall reimburse Purchaser within ninety (90) days
after receipt of Purchaser's bills and statements;
provided, however, that in no event shall the amount to be
reimbursed by Seller to Purchaser hereunder exceed in total
the Maximum TI Reimbursement Amount.
(e) The cost of any brokerage fees or
commissions incurred in connection with the leasing of
the Leased Premises to a new tenant, the cost of such
brokerage fees or commissions not to exceed the sum of
$10,240.00 ($4.00/square foot x 2560 square feet =
$10,240.00) (the Maximum Brokerage Commission
Reimbursement Amount). Purchaser must submit copies
of bills or statements evidencing the brokerage fees
or commissions due in connection with the leasing of
the Leased Premises to a new tenant, which bills or
statements must be received by Seller on or before<PAGE>
December 31, 1997, and Seller shall not be obligated or
required under any circumstances to reimburse Purchaser for
any bills or statements received by Seller after December
31, 1997. Seller shall reimburse Purchaser within ninety
(90) days after receipt of Purchaser's bills or statements;
provided, however, that in no event shall the amount to be
reimbursed by Seller to Purchaser hereunder exceed in total
the Maximum Brokerage Commission Reimbursement Amount.
3. Notwithstanding anything in this Amendment to the
contrary, if Radio Shack (a) has not vacated the Leased Premises
prior to the expiration of the Indemnification Period, or
(b) has executed and delivered the Renewal Lease, or executes
and delivers a lease that is substantially similar to the
Renewal Lease with modifications that are commercially
reasonably acceptable to Purchaser prior to the expiration of
the Indemnification Period, then in either event the
indemnification and reimbursement obligations of Seller set
forth in this Amendment shall immediately cease and terminate,
this Amendment and the terms and provisions set forth herein
shall be null and void, and the parties hereto shall have no
further rights or obligations hereunder.
4. In the event Radio Shack vacates the Leased Premises
prior to the expiration of the Indemnification Period, Purchaser
shall and hereby agrees to use its best efforts to relet the
Leased Premises or any part thereof to any person or entity, and
Purchaser shall not unreasonably refuse to accept any<PAGE>
commercially
reasonable new tenant. In addition, in the event
Purchaser relets the Leased Premises during the Indemnification
Period, and the new lease provides for a rental abatement period
which occurs during the Indemnification Period, the amount of
Minimum Rent or additional rent that Seller is required to
reimburse Purchaser for pursuant to subsections 2(a) and (b)
hereinabove during any such rental abatement period which occurs
during the Indemnification Period shall be reduced by the
adjusted rental per month due under such new lease. For
purposes of this Section 4, adjusted rental per month shall be
the quotient of the total rent (including base rent, additional
rent and any other abated amounts) due during the initial term
of such new lease divided by the total number of months in the
initial term of such new lease.
5. Seller and Purchaser hereby agree that the Maximum
Indemnification Amount has been agreed upon, after negotiation,
as the parties reasonable estimate of Purchaser's damages and
as Purchaser's sole and exclusive remedy against Seller, at law
or in equity, in connection with the Lease and with the matters
set forth in this Amendment.
6. Except as specifically set forth herein, all other
terms and conditions as set forth in the Agreement shall remain
in full force and effect, and are not otherwise amended,
altered, modified or revised.
7. This Amendment may be signed in any number of
counterparts, all of which when taken together shall constitute
one instrument.<PAGE>
IN WITNESS WHEREOF, Seller and Purchaser have caused this
Second Amendment to Agreement for Purchase and Sale of Real
Estate and Related Property to be executed as of the day and
year first above written.
SELLER: PURCHASER:
- - ------ ---------
CARLYLE INCOME PLUS, LTD. AMB RETAIL INCOME FUND, INC.,
an Illinois limited partnership a Maryland corporation
By: JMB REALTY CORPORATION,
a Delaware corporation, a general partner
By:_______________________________
By:_________________________________
Brian K. Ellison, Vice President
Its:_________________________________
EXHIBIT 10.3
SECOND AMENDMENT TO AGREEMENT FOR PURCHASE
AND SALE OF REAL ESTATE AND RELATED PROPERTY
------------------------------------------
THIS SECOND AMENDMENT TO AGREEMENT FOR PURCHASE AND SALE OF REAL
ESTATE AND RELATED PROPERTY (this Amendment) is dated as of the
11th day of December, 1996, by and between CARLYLE INCOME PLUS,
LTD., an Illinois limited partnership (Seller) and AMB RETAIL
INCOME FUND, INC., a Maryland corporation (Purchaser)
WITNESSETH:
----------
WHEREAS, Seller and Purchaser entered into that certain
Agreement for Purchase and Sale of Real Estate and Related
Property dated as of November 19, 1996 (the Agreement), which
Agreement was amended by that certain First Amendment to
Agreement for Purchase and Sale of Real Estate and Related
Property dated as of December 6, 1996 (the First Amendment)
(the Agreement as amended by the First Amendment is hereinafter
referred to as the Agreement), pursuant to which Agreement
Seller agreed to sell, and Purchaser agreed to purchase, certain
real property located in the City of Chicago, County of Cook,
State of Illinois, commonly known as the Riverview Plaza
Shopping Center, as legally described on Exhibit A to the
Agreement (the Premises); and
WHEREAS, Tandy Corporation, a Delaware corporation, d/b/a
Radio Shack (Radio Shack), entered into a lease dated February
9, 1981 with Seller's predecessor-in-interest (the lease, as may
have been amended, is hereinafter referred to as the Lease),
for certain space at the Premises designated as Store B-7 in
the Lease and containing approximately 2560 square feet (the
Leased Premises); and
WHEREAS, the Term of the Lease expired June 30, 1996; and
WHEREAS, Seller has negotiated with and delivered to Radio
Shack a renewal lease for execution on behalf of Radio Shack
(the Renewal Lease), which Renewal Lease contains terms and
provisions that have been approved by Radio Shack, but, as of
the date hereof, Radio Shack has not delivered to Seller an
executed Renewal Lease; and
WHEREAS, Seller apprised Purchaser during the Due Diligence
Period of the status of the Lease and the Renewal Lease, and
Purchaser reviewed and approved the terms and provisions of the
Renewal Lease; and
WHEREAS, in light of the Closing of the transaction
contemplated under the Agreement and that Radio Shack has not as
of the date hereof delivered to Seller an executed Renewal
Lease, Purchaser has requested that Seller indemnify Purchaser
with respect to certain costs and expenses which may arise in
the event Radio Shack does not execute and deliver the Renewal
Lease; and
<PAGE>
WHEREAS, Seller has agreed to provide such indemnification
to Purchaser, in accordance with and subject to the terms and
provisions set forth hereinbelow.
NOW, THEREFORE, in consideration of these premises, of the
mutual covenants set forth herein, and for other good and
valuable consideration, the receipt and sufficiency of which is
hereby acknowledged by the parties hereto, Seller and Purchaser
hereby agree as follows:
1. All capitalized terms used herein and not defined
shall have the same meaning as set forth in the Agreement.
2. Seller and Purchaser hereby agree that in the event
Radio Shack ceases to occupy and vacates the Leased Premises
during the period from January 1, 1997 through June 30, 1997
(the Indemnification Period), Seller shall reimburse Purchaser
for certain costs and expenses as set forth below which
Purchaser may incur as a result thereof; provided, however, that
in no event shall the total of all such costs and expenses
exceed the sum of $75,000.00 (the Maximum Reimbursement
Amount):
(a) Minimum Rent (as defined in the Lease), equal to
$4,320.00 per month ($20.25/square foot), for a total of
$25,920.00 for the Indemnification Period (the Maximum
Minimum Rent Reimbursement Amount). The Maximum Minimum
Rent Reimbursement Amount shall be reduced for each month
Radio Shack occupies the Leased Premises during the
Indemnification Period. For example, if Radio Shack
occupies the Leased Premises from January, 1997 through
March, 1997, and thereafter Radio Shack vacates the Leased
Premises, then Seller's total liability for reimbursement
to Purchaser of Minimum Rent will be $12,960.00
($4,320.00/month x 3 months [April, 1997 - June, 1997] =
$12,960.00).
(b) Additional rent (including Tenant's Tax
Share and Tenant's Shopping Center Common Area Pro
Rata Share of the Shopping Center Common Area
Maintenance Costs, as such terms are defined in the
Lease), equal to $2,133.33 per month ($10.00/square
foot), for a total of $12,800.00 for the
Indemnification Period (the Maximum Additional Rent
Reimbursement Amount). The Maximum Additional Rent
Reimbursement Amount shall be reduced for each month
Radio Shack occupies the Leased Premises during the
Indemnification Period. For example, if Radio Shack
occupies the Leased Premises from January, 1997
through March, 1997, and thereafter Radio Shack
vacates the Leased Premises, Seller's total liability
for reimbursement to Purchaser of additional rent will
be $6,400.00 ($2,133.33/month x 3 months [April, 1997
- June, 1997] = $6,400.00).
(c) The amounts which may be due by Seller to
Purchaser pursuant to subsections 2(a) and (b)
hereinabove shall be prorated for any portion of any<PAGE>
month during which Radio Shack occupies the Leased
Premises. In the event Radio Shack vacates the Leased
Premises prior to the expiration of the Indemnification
Period and Purchaser is entitled to reimbursement from
Seller of Minimum Rent and additional rent in accordance
with the terms and provisions of subsections 2(a) and (b)
hereinabove, Purchaser shall submit a statement to Seller
setting forth the amount Purchaser calculates it is
entitled to receive from Seller. Provided Seller agrees
with Purchaser's calculations, Seller shall reimburse
Purchaser within ninety (90) days after receipt of
Purchaser's statement. If Seller does not agree with
Purchaser's calculations, Seller shall so notify Purchaser
in writing of its disagreement, and the parties shall
thereafter use reasonable efforts to agree upon an amount
due to Purchaser. Seller shall not be obligated or
required under any circumstances to reimburse Purchaser for
any statement received by Seller after July 31, 1997. In
no event shall the amount to be reimbursed by Seller to
Purchaser (i) under subsection 2(a) exceed the Maximum
Minimum Rent Reimbursement Amount, and (ii) under
subsection 2(b) exceed the Maximum Additional Rent
Reimbursement Amount.
(d) The cost of building out the Leased Premises for a new
tenant, the cost of such tenant improvement work not to
exceed the sum of $25,600.00 ($10.00/square foot x 2560
square feet = $25,600.00) (the Maximum TI Reimbursement
Amount). In the event Purchaser is required to perform
tenant improvement work at the Leased Premises for a new
tenant, Purchaser must submit copies of bills and
statements evidencing the actual costs incurred by
Purchaser in connection with such tenant improvement work
at the Leased Premises. All such bills and statements must
be received by Seller on or before December 31, 1997, and
Seller shall not be obligated or required under any
circumstances to reimburse Purchaser for any bills or
statements received by Seller after December 31, 1997.
Seller shall reimburse Purchaser within ninety (90) days
after receipt of Purchaser's bills and statements;
provided, however, that in no event shall the amount to be
reimbursed by Seller to Purchaser hereunder exceed in total
the Maximum TI Reimbursement Amount.
(e) The cost of any brokerage fees or
commissions incurred in connection with the leasing of
the Leased Premises to a new tenant, the cost of such
brokerage fees or commissions not to exceed the sum of
$10,240.00 ($4.00/square foot x 2560 square feet =
$10,240.00) (the Maximum Brokerage Commission
Reimbursement Amount). Purchaser must submit copies
of bills or statements evidencing the brokerage fees
or commissions due in connection with the leasing of
the Leased Premises to a new tenant, which bills or
statements must be received by Seller on or before<PAGE>
December 31, 1997, and Seller shall not be obligated or
required under any circumstances to reimburse Purchaser for
any bills or statements received by Seller after December
31, 1997. Seller shall reimburse Purchaser within ninety
(90) days after receipt of Purchaser's bills or statements;
provided, however, that in no event shall the amount to be
reimbursed by Seller to Purchaser hereunder exceed in total
the Maximum Brokerage Commission Reimbursement Amount.
3. Notwithstanding anything in this Amendment to the
contrary, if Radio Shack (a) has not vacated the Leased Premises
prior to the expiration of the Indemnification Period, or
(b) has executed and delivered the Renewal Lease, or executes
and delivers a lease that is substantially similar to the
Renewal Lease with modifications that are commercially
reasonably acceptable to Purchaser prior to the expiration of
the Indemnification Period, then in either event the
indemnification and reimbursement obligations of Seller set
forth in this Amendment shall immediately cease and terminate,
this Amendment and the terms and provisions set forth herein
shall be null and void, and the parties hereto shall have no
further rights or obligations hereunder.
4. In the event Radio Shack vacates the Leased Premises
prior to the expiration of the Indemnification Period, Purchaser
shall and hereby agrees to use its best efforts to relet the
Leased Premises or any part thereof to any person or entity, and
Purchaser shall not unreasonably refuse to accept any<PAGE>
commercially
reasonable new tenant. In addition, in the event
Purchaser relets the Leased Premises during the Indemnification
Period, and the new lease provides for a rental abatement period
which occurs during the Indemnification Period, the amount of
Minimum Rent or additional rent that Seller is required to
reimburse Purchaser for pursuant to subsections 2(a) and (b)
hereinabove during any such rental abatement period which occurs
during the Indemnification Period shall be reduced by the
adjusted rental per month due under such new lease. For
purposes of this Section 4, adjusted rental per month shall be
the quotient of the total rent (including base rent, additional
rent and any other abated amounts) due during the initial term
of such new lease divided by the total number of months in the
initial term of such new lease.
5. Seller and Purchaser hereby agree that the Maximum
Indemnification Amount has been agreed upon, after negotiation,
as the parties reasonable estimate of Purchaser's damages and
as Purchaser's sole and exclusive remedy against Seller, at law
or in equity, in connection with the Lease and with the matters
set forth in this Amendment.
6. Except as specifically set forth herein, all other
terms and conditions as set forth in the Agreement shall remain
in full force and effect, and are not otherwise amended,
altered, modified or revised.
7. This Amendment may be signed in any number of
counterparts, all of which when taken together shall constitute
one instrument.<PAGE>
IN WITNESS WHEREOF, Seller and Purchaser have caused this
Second Amendment to Agreement for Purchase and Sale of Real
Estate and Related Property to be executed as of the day and
year first above written.
SELLER: PURCHASER:
- - ------ ---------
CARLYLE INCOME PLUS, LTD. AMB RETAIL INCOME FUND, INC.,
an Illinois limited partnership a Maryland corporation
By: JMB REALTY CORPORATION,
a Delaware corporation, a general partner
By:_______________________________
By:_________________________________
Brian K. Ellison, Vice President
Its:_________________________________
