4
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 March 3, 1997.
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
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): March 3,
1997
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.
- ------------------------------------------------------------
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COSTA MESA INDUSTRIAL PARK
COSTA MESA, CALIFORNIA
---------------------------
ITEM 2. ACQUISITION OR DISPOSITION OF ASSETS. On March 3,
1997, Carlyle Income Plus, Ltd. (the "Partnership"), an
Illinois limited partnership, sold the land and related
improvements consisting primarily of industrial buildings
(commonly known as "2945 Airway Avenue", "2955 Airway
Avenue", "2995 Airway Avenue" and "350 Lear Avenue") and
previously known as Costa Mesa Industrial Park (the
"Property"), an approximately 107,000-square-foot industrial
project located on approximately five acres in Costa Mesa,
Orange County, California. The purchaser, Hamilton Airway
I, LLC, a California limited liability company, 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
$4,456,000 and was paid in cash at closing (net of selling
costs and prorations). The Property was approximately 70%
occupied at the date of sale. The sale resulted in a gain
to the Partnership of approximately $1,150,000 for financial
reporting purposes, primarily as a result of a $3,400,000
provision for value impairment recorded by the Partnership
in 1995. Also, the Property was classified as held for sale
or disposition 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 loss on sale of approximately $2,200,000
for Federal income tax reporting purposes in 1997.
During 1996, the Partnership discovered subsoil
contamination at the Property, the source of which was
believed to be a current tenant at the Property. Subsequent
discussions between the Partnership and the tenant resulted
in the tenant agreeing to pay the costs of any required
remediation of such contamination, which was substantially
completed at the date of sale. In connection with the sale,
the Partnership was released and indemnified by the
purchaser of the Property from any future liability related
to such contamination, as well as all other environmental
problems at the Property which were known by the purchaser
prior to the sale.
The Partnership Agreement provides that distributions
of sale proceeds are to be initially allocated 99% to the
Holders of Interests (as defined) 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 are to be repaid to the Partnership to the
extent that the Holders of Interests have not received sale
proceeds equal to their initial capital investment plus a 6%
return on their investment (as defined). After receipt by
the Holders of Interests 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 Holders of Interests
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 Holders of
Interests' receipt of a 9% return on their investment.
Since the Holders of Interests are not expected 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 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, depreciation and
provision for value impairment recorded for the Property in
the financial statements of the Partnership, which for the
Partnership's most recent reported fiscal year (the year
ended December 31, 1995) were approximately $380,000,
$114,000, $160,000 and $3,400,000, respectively. Rental and
other income, property operating expenses, depreciation and
provision for value impairment for the Property were
approximately $296,000 $120,000 $25,000 and $0,
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 held for sale or disposition of
approximately $3,003,000; cash and other current assets of
approximately $53,000; accrued real estate taxes and other
current liabilities of approximately $18,000, and tenant
security deposits of approximately $33,000. The remaining
operations of the Partnership will consist primarily of the
operations of the Partnership's remaining owned investment
properties, the Carson Industrial Park, the Sunrise Town
Center shopping center and (through a joint venture) the
Landings Shopping Center.
(c) Exhibits.
99.1 Real Property Purchase Agreement between
Carlyle Income Plus, Ltd., Hamilton Airway I, LLC, and John W.
Hamilton Company, dated February 27, 1997.
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: March 14, 1997
1
PURCHASE AGREEMENT AND JOINT ESCROW INSTRUCTIONS
(2945 Airway Avenue, 2955 Airway Avenue, 2975 Airway Avenue
and 350 Lear Avenue; Costa Mesa, California)
THIS AGREEMENT is made and entered into as of February
27 1997, by and among CARLYLE INCOME PLUS, LTD., a Illinois
limited partnership hereinafter called "Seller"), HAMILTON
AIRWAY I, LLC, a California limited liability company
(hereinafter called "Buyer"), and JOHN W. HAMILTON COMPANY,
a California corporation (hereinafter called "Hamilton").
R E C I T A L S
A. Seller is the owner of that certain real property
located at 2945 Airway Avenue, 2955 Airway Avenue, 2975
Airway Avenue and 350 Lear Avenue, in the City of Costa
Mesa, County of Orange, State of California, consisting
primarily of industrial buildings (collectively, the
"Premises") commonly known as "2945 Airway Avenue", "2955
Airway Avenue", "2975 Airway Avenue" and "350 Lear Avenue".
B. Buyer desires to purchase, and Seller desires to
sell, such Premises on the terms and conditions hereinafter
documented.
NOW, THEREFORE, in consideration of the mutual
undertakings of the parties hereto, it is hereby agreed as
follows:
1. Purchase and Sale. Seller shall sell to Buyer,
and Buyer shall purchase from Seller, the land (the "Land")
described in Exhibit "A", attached hereto and made a part
hereof, together with all improvements, structures, supplies
and fixtures located upon the Land (subject, however, to all
tenants' rights therein), all right, title and interest of
Seller in and to those items of personal property located
upon or about the Land and described in Exhibit "B",
attached hereto and made a part hereof, all right, title and
interest of Seller in and to the names "2945 Airway Avenue",
"2955 Airway Avenue", "2975 Airway Avenue" and "350 Lear
Avenue", and, to the extent assignable, all right, title and
interest of Seller in and to all leases, contract rights,
agreements, tenant lists, advertising material and telephone
exchange numbers (hereinafter, collectively, the
"Property"), all upon the terms, covenants and conditions
hereinafter set forth.
2. Purchase Price. The purchase price (the "Purchase
Price") for the Property shall be the sum of $4,456,000.
3. Payment of Purchase Price. The Purchase Price
shall be paid to Seller by Buyer as follows:
A. Escrow Deposit. Concurrently herewith, Buyer
shall deliver $50,000 (which amount, together with all
interest earned thereon, is herein called the "Escrow
Deposit") to First American Title Company, at its offices at
114 E. Fifth Street, Santa Ana, California 92701,
Attention: Ms. Judy Moore (which company, in its capacity
as escrow holder hereunder, is called "Escrow Holder").
The amounts deposited hereunder shall be held by Escrow
Holder as a deposit against the Purchase Price in accordance
with the terms and provisions of this Agreement. At all
times that the Escrow Deposit is being held by the Escrow
Holder, the Escrow Deposit shall be invested by Escrow
Holder in the following investments ("Approved
Investments"): (i) United States Treasury obligations, (ii)
United States Treasury-backed repurchase agreements issued
by a major money center banking institution reasonably
acceptable to Seller and Buyer, or (iii) such other manner
as may be reasonably agreed to by Seller and Buyer. Within
one (1) business day of receipt of the Escrow Deposit,
Escrow Holder will deliver to Seller the entire Escrow
Deposit (including the Escrow Deposit and all interest
earned to date thereon) which Escrow Deposit shall thereupon
be held by Seller as a deposit against Purchase Price as
provided for herein. Seller shall not be required to hold
the Escrow Deposit in a separate account (but may commingle
the Escrow Deposit with other funds of Seller) and any
interest earned on the Escrow Deposit after delivery to
Seller shall be and shall remain the property of Seller.
Buyer hereby confirms that the delivery of the Escrow
Deposit shall constitute Buyer's irrevocable authorization
to Escrow Holder to release the Escrow Deposit to Seller as
aforesaid (and no further confirmation or instructions from
Buyer shall be required).
B. Closing Payment. The balance of the Purchase
Price, as adjusted by the application of the Escrow Deposit
and by the prorations and credits specified herein, shall be
paid in cash on the Closing Date (the amount to be paid
under this subparagraph C being herein called the "Closing
Payment").
4. Conditions Precedent.
A. Completed Due Diligence.
(1) Price Reflective of Reviews. Buyer has completed
all of Buyer's due diligence examinations, reviews and
inspections of all matters pertaining to the purchase of the
Property, including all leases, service contracts, survey
and title matters (except as specifically set forth in
paragraph 4B(1) below), and all physical, environmental and
compliance matters and conditions respecting the Property.
Buyer acknowledges that Buyer and Seller have discussed the
results of Buyer's due diligence examinations, reviews and
inspections and that the Purchase Price has been adjusted to
appropriately take such due diligence matters into account
to Buyer's satisfaction. In addition, Buyer acknowledges
and agrees that the Purchase Price has been adjusted to take
into account Buyer's release and indemnification of Seller
with respect to the matters set forth in the "Environmental
Reports" and in the "Hamilton Letter" (as such terms are
hereinafter defined).
(2) Conduct of Reviews. Buyer hereby represents
and warrants to Seller that Buyer at all times conducted its
due diligence review, inspections and examinations in a
manner so as to not cause damage, loss, cost or expense to
Seller or the Property and so as to not interfere with or
disturb any tenant at the Property, and Buyer will
indemnify, defend, and hold Seller and the Property harmless
from and against any such damage, loss, cost or expense (the
foregoing obligation surviving any termination of this
Agreement). Buyer further represents and warrants to Seller
that Buyer did not make any intrusive physical testing
(environmental, structural or otherwise) at the Property
(such as soil borings or the like) without Seller's prior
knowledge and consent (and in all events promptly returned
the Property to its prior condition and repair thereafter).
If the transactions hereunder shall fail to close, Buyer
shall promptly deliver to Seller true, accurate and complete
copies of any written reports relating to the Property
prepared for or on behalf of Buyer by any third party (other
than those respecting economic performance or issues of
management) and shall return all documents and other
materials furnished by Seller hereunder. Buyer shall keep
all information or data received or discovered in connection
with any of the inspections, reviews or examinations
strictly confidential.
B. Title Matters.
(1) Title Report. Seller has delivered to Buyer a
copy of preliminary title report number 2604814-3 dated
November 12, 1996 and supplemented December 2, 1996 (the
"Preliminary Title Report") covering the Property from
Commonwealth Land Title Insurance Company (which company, in
its capacity as title insurer hereunder, is herein called
the "Title Company"), together with copies of all exceptions
to title referenced thereto. In addition, Seller has
delivered to Buyer an update dated December 3, 1996 of that
certain ALTA as-built survey of the Property dated August 5,
1988, prepared by Psomas and Associates, which survey has
been certified to Buyer and Title Company ("Survey").
(2) Approval of Title Exceptions. Buyer has approved
those exceptions of title and those matters disclosed on the
Survey (collectively, the "Permitted Exceptions") and
disapproved those matters set ("Disapproved Matters") forth
on Exhibit "C-1" attached hereto and made a part hereof.
Approval by Buyer of any Disapproved Matters which have not
been cured and any additional exceptions to title or survey
matters disclosed in writing after the date hereof shall be
a condition precedent to Buyer's obligation to purchase the
Property. In the event Buyer does not give written notice
that it approves any such additional exceptions to title or
survey matters, on or before the sooner to occur of ten (10)
days after receipt of written notice thereof or the Closing
Date, Buyer shall be deemed to have disapproved said
exceptions.
3) Removal of Title Exceptions. In the event that at
the Closing the Property is subject to encumbrances,
including any Disapproved Matters, other than the Permitted
Exceptions and Seller shall not have cured or insured over
the same as provided herein, then Buyer may elect to (i)
waive any objection to such encumbrances and proceed to
Closing, subject to the obligation of Seller to pay and
remove all Monetary Encumbrances (as hereinafter defined),
or (ii) terminate this Agreement, in which event the Escrow
Deposit shall be returned to Buyer, and, upon the receipt
thereof by Buyer all obligations hereunder shall be null and
void and of no further force or effect, or (iii) deliver
written notice to Seller, within the time periods set forth
hereinabove in paragraph 4.B(2), of Buyer's objections to
such encumbrances, in which event Seller shall be obligated
to take all such reasonable action as shall be necessary to
remove such encumbrances; provided, however, that Seller's
obligation to pay sums of money in connection therewith
shall be limited to (a) the payment and discharge of all
mortgages, deeds of trust, deeds to secure debt and security
agreements entered into by Seller, mechanic's and
materialmen's liens for work done by or on behalf of Seller,
tax or judgment liens against Seller and, subject to the
proration provisions contained herein, assessments
encumbering the Subject Property (collectively, "Monetary
Encumbrances"), and (b) the payment of sums of money not to
exceed $150,000 in the aggregate for the removal of
encumbrances other than Monetary Encumbrances; provided,
however, Seller shall have the right to bond or insure over
any such liens or assessments subject to Buyer's consent.
If, on or before the Closing, Seller is unable to satisfy
any valid title or survey objections as aforesaid, Seller
shall have the right to extend the date of Closing for such
time period as it may select, not to exceed thirty (30)
days. If Seller fails to satisfy any such valid objections
on or before the date of Closing, Buyer may, at Buyer's
election, (i) extend the date of Closing for such time
period as it may select, not to exceed thirty (30) days;
(ii) waive such objections and proceed to Closing; (iii)
terminate this Agreement, in which event the Escrow Deposit
shall be returned to Purchaser, and upon the receipt thereof
by Purchaser, all obligations hereunder shall be null and
void and of no further force and effect; or (iv) deduct the
amount of any unsatisfied Monetary Encumbrances from the
Closing Payment and proceed to Closing. In the event of any
extension of the date of Closing by Purchaser under clause
(i) above, and a subsequent failure of Seller to cure any
valid title objection, Purchaser may then elect between the
alternatives specified in clauses (ii), (iii) and (iv) of
the preceding sentence. Any title objections that Purchaser
waives shall be deemed to be included in the Permitted
Exceptions.
a. Exceptions to Title. Buyer shall be
obligated to accept title to the Property, subject to the
following exceptions to title:
(i) Real estate taxes and assessments not yet due
and payable;
(ii) The printed exceptions which appear in the
standard form owner's policy of title insurance issued by
Title Company;
(iii) The Permitted Exceptions; and
(iv) Such other exceptions to title as may be
approved or deemed approved by Purchaser pursuant to the
provisions of this paragraph 4.B(3)
Conclusive evidence of the availability of such title shall
be the willingness of Title Company to issue to Buyer on the
Closing Date a standard form ALTA extended coverage owner's
title insurance policy ("Owner's Policy"), in the face
amount of the Purchase Price, which policy shall (i) show
title to the Property to be vested of record in Buyer,
(ii) show the Permitted Exceptions to be the only exceptions
to title, and (iii) contain such endorsements as Buyer shall
require (and the Title Company shall agree to issue) as of
the date hereof.
C. Estoppel Certificates. Buyer has received
estoppel certificates from Lumenyte International
Corporation and C.V.I. Incorporated, the form of which is
approved by Buyer. Buyer acknowledges and agrees that
receipt by Buyer of an estoppel certificate from Knight
Equipment Corporation shall in no event be a condition
precedent to Buyer's obligation to purchase the Property
hereunder.
D. Knight Estoppel Certificate. Seller's receipt of
an estoppel certificate from Knight Equipment Corporation
(the "Knight Estoppel Certificate") dated not more than ten
(10) days prior to Closing Date, shall be a condition
precedent to Seller's obligation to sell the Property
hereunder. The Knight Estoppel Certificate shall be
substantially in the form of Exhibit "C-2" attached hereto
and made a part hereof, and upon delivery, the condition set
forth in this paragraph shall be deemed satisfied.
E. Performance by Seller. The performance and
observance, in all material respects, by Seller of all
covenants and agreements of this Agreement to be performed
or observed by Seller prior to or on the Closing Date shall
be a condition precedent to Buyer's obligation to purchase
the Property. In addition, in the event that the "Seller
Closing Certificate" (as hereinafter defined) shall disclose
any material adverse changes in the representations and
warranties of Seller contained in paragraph 7A below which
are not otherwise permitted or contemplated by the terms of
this Agreement, then Buyer shall have the right to terminate
this Agreement. Buyer shall have the option to waive the
condition precedent set forth in this paragraph 4E by
written notice to Seller. In the event of such waiver, such
condition shall be deemed satisfied.
F. Performance by Buyer. The performance and
observance, in all material respects, by Buyer of all
covenants and agreements of this Agreement to be performed
or observed by it prior to or on the Closing Date shall be a
condition precedent to Seller's obligation to sell the
Property. In addition, in the event that the "Buyer Closing
Certificate" (as hereinafter defined) shall disclose any
material adverse changes in the representations and
warranties of Buyer contained in paragraph 7B below which
are not permitted or contemplated by the terms of this
Agreement, then Seller shall have the right to terminate
this Agreement. Seller shall have the option to waive the
condition precedent set forth in this paragraph 4D by
written notice to Buyer. In the event of such waiver, such
condition shall be deemed satisfied.
5. Closing Procedure Transactions. The sale and
purchase herein provided shall be consummated at a closing
conference ("Closing Conference"), which shall be held on
the Closing Date at the offices of Seller's counsel,
Pircher, Nichols & Meeks at 1999 Avenue of the Stars,
Suite 2600, Los Angeles, California 90067, or through escrow
through the mail. As used herein, "Closing Date" means
February 28, 1997, or such earlier date as may be agreed
upon by Buyer and Seller in writing.
A. Escrow. By the Closing Date, the parties shall
deliver to Escrow Officer at its office located at 114 E.
Fifth Street, Santa Ana, California 92701, Attention: Ms.
Judy Moore, the following: (1) by Seller, a duly executed
and acknowledged original grant deed ("Deed") in favor of
Buyer, in the form of Exhibit "D" attached hereto and made a
part hereof, and (2) by Buyer, the Closing Payment in
immediately available federal funds. Such deliveries shall
be made pursuant to escrow instructions ("Escrow
Instructions") to be executed among Buyer, Seller and Title
Company in form reasonably acceptable to such parties in
order to effectuate the intent hereof. The conditions to
the closing of such escrow shall include the Title Company's
receipt of the Deed, the Closing Payment, the commitment of
the Title Company to issue the Owner's Policy in the form
specified in paragraph 4A(2) hereof, and an authorization
notice from each of Buyer and Seller (and each of Buyer and
Seller shall be obligated to deliver such authorization
notice at the Closing Conference as soon as it is reasonably
satisfied that the other party is in a position to deliver
the items to be delivered by such other party under
subparagraph B below).
B. Delivery to Parties. Upon the satisfaction of the
conditions set forth in the Escrow Instructions, then on the
Closing Date (1) the Deed shall be delivered to Buyer by
Title Company's depositing the same for recordation, (2) the
Closing Payment (and the Escrow Deposit) shall be delivered
to Seller and (3) at the Closing Conference, the following
items shall be delivered:
(1) Seller Deliveries. Seller shall deliver to Buyer
the following:
(a) A duly executed and acknowledged bill of sale,
assignment and assumption agreement ("Assignment and
Assumption Agreement") in the form of Exhibit "E" attached
hereto and made a part hereof;
(b) A certificate of Seller ("Seller Closing
Certificate") updating the representations and warranties
contained in paragraph 7A hereof to the Closing Date and
noting any changes thereto;
(c) Duly executed and acknowledged certificates
regarding the "non-foreign" status of Seller satisfying both
federal and state law requirements;
(d) Evidence reasonably satisfactory to Buyer and
Escrow Holder respecting the due organization of Seller and
the due authorization and execution of this Agreement and
the documents required to be delivered hereunder; and
(e) Such additional documents as may be reasonably
required by Buyer and Title Company in order to consummate
the transactions hereunder (provided the same do not
increase the costs to, or liability or obligations of,
Seller in a manner not otherwise provided for herein).
(2) Buyer Deliveries. Buyer shall deliver to Seller
the following:
(a) A duly executed and acknowledged Assignment and
Assumption Agreement;
(b) A certificate of Buyer ("Buyer Closing
Certificate") updating the representations and warranties
contained in paragraph 7B hereof to the Closing Date and
noting any changes thereto;
(c) Evidence reasonably satisfactory to Seller and
Escrow Holder respecting the due organization of Buyer and
the due authorization and execution of this Agreement and
the documents required to be delivered hereunder; and
(d) Such additional documents as may be reasonably
required by Seller and Title Company in or to consummate the
transactions hereunder (provided the same do not increase
the costs to, or liability or obligations of, Buyer in a
manner not otherwise provided for herein).
C. Closing Costs. Seller shall pay (i) the
documentary or transfer taxes attributable to the Deed, (ii)
the title insurance premiums (at a rate not in excess of
standard issue rates) attributable to standard CLTA coverage
respecting the Owner's Policy, and (iii) the costs of the
Survey. Buyer shall pay all title insurance premiums
attributable to the Owner's Policy in excess of standard
CLTA coverage, as well as any costs attributable to ALTA
coverage in connection therewith or for other so-called
"extended coverage" or for any endorsements to the Owner's
Policy, to the extent any of the foregoing is requested by
Buyer, all costs and expenses related to Buyer's due
diligence examinations, reviews and inspections. Seller and
Buyer shall each pay one-half of the cost of recording the
Deed and any closing escrow charges. Seller and Buyer shall
each pay its own attorney's fees and expenses and its own
respective shares of prorations as hereinafter provided.
D. Prorations.
(1) Items to be Prorated. The following shall be
prorated between Seller and Buyer as of the Closing Date:
(a) All real estate taxes and assessments on the
Property for the current year. In no event shall Seller be
charged with or be responsible for any increase in the taxes
on the Property resulting from the sale of the Property or
from any improvements made or leases entered into on or
after the Closing Date. In the event that any assessments
on the Property are payable in installments, then the
installment for the current period shall be prorated (with
Buyer assuming the obligation to pay any installments due
after the Closing Date).
(b) All fixed and additional rentals under the Leases,
security deposits and other tenant charges. Seller shall
deliver or provide a credit in an amount equal to all
prepaid rentals for periods after the Closing Date and all
security deposits (to the extent the foregoing were made by
tenants under the tenant leases and are not applied or
forfeited prior to the Closing Date) to Buyer on the Closing
Date. Rents which are delinquent as of the Closing Date
shall not be prorated on the Closing Date. Buyer shall
include such delinquencies in its normal billing and shall
diligently pursue the collection thereof in good faith after
the Closing Date (but Buyer shall not be required to
litigate or declare a default in any Lease). To the extent
Buyer receives rents on or after the Closing Date, such
payments shall be applied first toward then current rent
owed to Buyer in connection with the applicable Lease for
which such payments are received, and any excess monies
received shall be applied toward the payment of any
delinquent rents, with Seller's share thereof being promptly
delivered to Seller. Buyer may not waive any delinquent
rents nor modify a Lease so as to reduce or otherwise affect
amounts owed thereunder for any period in which Seller is
entitled to receive a share of charges or amounts without
first obtaining Seller's written consent. Seller hereby
reserves the right to pursue any remedy against any tenant
owing delinquent rents and any other amounts to Seller.
Buyer shall reasonably cooperate with Seller in any
collection efforts hereunder (but shall not be required to
litigate or declare a default in any Lease). With respect
to delinquent rents and any other amounts or other rights of
any kind respecting tenants who are no longer tenants of the
Property as of the Closing Date, Seller shall retain all
rights relating thereto.
(c) All utility costs and other normal and customary
operating expenses.
(2) Calculation. The prorations and payments shall be
made on the basis of a written statement submitted to Buyer
and Seller by Escrow Holder prior to the Close of Escrow and
approved by Buyer and Seller. In the event any prorations
or apportionments made under this subparagraph D shall prove
to be incorrect for any reason, then any party shall be
entitled to an adjustment to correct the same. Any item
which cannot be finally prorated because of the
unavailability of information shall be tentatively prorated
on the basis of the best data then available and reprorated
when the information is available. The obligations of
Seller and Buyer under this paragraph 5D(2) shall survive
the closing.
6. Condemnation or Destruction of Property. In the
event that, after the date hereof but prior to the Closing
Date, either any portion of the Property is taken pursuant
to eminent domain proceedings or any of the improvements on
the Property are damaged or destroyed by any casualty,
Seller shall have no obligation to repair or replace any
such damage or destruction. Seller shall, upon consummation
of the transaction herein provided, assign to Buyer all
claims of Seller respecting any condemnation or casualty
insurance coverage, as applicable, and all condemnation
proceeds or proceeds from any such casualty insurance
received by Seller on account of any casualty (the damage
from which shall not have been repaired by Seller prior to
the Closing Date), as applicable. In connection with any
assignment of insurance proceeds hereunder, Seller shall
credit Buyer with an amount equal to the applicable
deductible amount under Seller's insurance; provided,
however, if the amount of such deductible shall exceed
$100,000, Seller shall have the right to terminate this
Agreement by notice to Buyer given on or before the Closing
Date (whereupon the Escrow Deposit shall be returned to
Buyer). In the event that Seller does not elect to credit
Buyer as aforesaid, Buyer shall have the right to terminate
this Agreement by notice to Seller given on or before the
Closing Date (whereupon the Escrow Deposit shall be returned
to Buyer). In the event the condemnation award or the cost
of repair of damage to the Property on account of a
casualty, as applicable, shall exceed $100,000 (or if a
casualty is uninsured, and Seller does not elect to credit
Buyer with an amount equal to the cost to repair such
uninsured casualty, Seller having the right, but not the
obligation, to do so), Buyer may, at its option, terminate
this Agreement by notice to Seller, given on or before the
Closing Date and receive a refund of the Escrow Deposit.
7. Representations, Warranties and Covenants.
A. Representations, Warranties and Covenants of
Seller.
(1) General Disclaimer. Except as specifically set
forth in paragraph 7A(2) below or in the documents delivered
by Seller at closing pursuant to paragraph 5B(1) hereof, the
sale of the Property hereunder is and will be made on an "as
is" basis, without representations and warranties of any
kind or nature, express, implied or otherwise, including,
but not limited to, any representation or warranty
concerning title to the Property, the physical condition of
the Property (including, but not limited to, the condition
of the soil or the Improvements), the environmental
condition of the Property (including, but not limited to,
the presence or absence of hazardous substances on or
respecting the Property), the compliance of the Property
with applicable laws and regulations (including, but not
limited to, zoning and building codes or the status of
development or use rights respecting the Property), the
financial condition of the Property or any other
representation or warranty respecting income, expenses,
charges, liens or encumbrances, rights or claims on,
affecting or pertaining to the Property or any part thereof.
Buyer acknowledges that, during the Due Diligence Period,
Buyer will examine, review and inspect all matters which in
Buyer's judgment bear upon the Property and its value and
suitability for Buyer's purposes. Except as to matters
specifically set forth in paragraph 7A(2) below or in the
documents delivered by Seller at closing pursuant to
paragraph 5B(1) hereof, Buyer will acquire the Property
solely on the basis of its own physical and financial
examinations, reviews and inspections and the title
insurance protection afforded by the Owner's Policy.
(2) Limited Representations and Warranties of Seller.
Seller hereby represents and warrants to Buyer that, except
as set forth in Exhibit "F" attached hereto and made a part
hereof, Seller has no knowledge that any of the following
statements is untrue (and, for this purpose, Seller's
knowledge shall mean the present actual knowledge of Dennis
Kielgass):
(a) List of Leases. Attached as Exhibit "G" and made
a part hereof is a true, complete and accurate list, as of
the date thereof, of all tenant leases respecting the
Property ("List of Leases"), neither Seller nor any tenant
is in monetary default or material non-monetary default
under any of such tenant leases that remains uncured.
(b) Litigation. There is no pending action,
litigation, condemnation or other proceeding against the
Property or against Seller (or any of its partners or
principals) with respect to the Property.
(c) Compliance. Seller has received no written notice
from any governmental authority having jurisdiction over the
Property or any party to the effect that the Property is not
in compliance with applicable laws and ordinances.
(d) Service Agreements. Other than those which are
cancelable on 30 days' notice without payment of any fees,
there are no service agreements or contracts ("Service
Agreements") or other agreements (other than as expressly
set forth in this Agreement) relating to the Property which
will be in force on the Closing Date, except as described in
Exhibit "H" attached hereto and made a part hereof, and
Seller is not in monetary default or
material non-monetary default thereunder that remains
uncured.
(e) Due Authority. This Agreement and all agreements,
instruments and documents herein provided to be executed or
to be caused to be executed by Seller are and on the Closing
Date will be duly authorized, executed and delivered by and
are binding upon Seller. Seller is a limited partnership,
duly organized and validly existing under the laws of the
State of Illinois, and is duly authorized and qualified to
do all things required of it under this Agreement. Seller
has the legal capacity and authority to enter into this
Agreement and consummate the transactions herein provided
without the consent or joinder of any other party (except as
otherwise set forth in this Agreement).
(f) Environmental Matters. Except as set forth in the
reports described in Exhibit "I-1" attached hereto and made
a part hereof (the "Environmental Reports"), and in that
certain letter dated February 14, 1997, from John Hamilton
to James Abbey, Debbie Merse and Dennis Kielgass (the
"Hamilton Letter"), Seller has received no written notice of
the existence, deposit, storage, removal, burial or
discharge of any material known to Seller to be a "Hazardous
Material" at, upon, under or within the Property, in an
amount which would, as of the date hereof, give rise to an
"Environmental Compliance Cost". The term "Hazardous
Material" shall mean (i) asbestos and any chemicals,
flammable substances or explosives, any radioactive
materials (including radon), any hazardous wastes or
substances which have, as of the date hereof, been
determined by any applicable Federal, State or local
government law to be hazardous or toxic by the U.S.
Environmental Protection Agency, the U.S. Department of
Transportation, and/or any instrumentality now or hereafter
authorized to regulate materials and substances in the
environment which has jurisdiction over the Property
("Environmental Agency"), and (ii) any oil, petroleum or
petroleum derived substance, any drilling fluids, produced
waters and other wastes associated with the exploration,
development or production of crude oil, which materials
listed under items (i) and (ii) above cause the Property (or
any part thereof) to be in material violation of any
applicable environmental laws or the regulations of any
Environmental Agency; provided, however, that the term
"Hazardous Material" shall not include motor oil and
gasoline contained in or discharged from vehicles not used
primarily for the transport of motor oil or gasoline. The
term "Environmental Compliance Cost" means any reasonable
out-of-pocket cost, fee or expense incurred directly to
satisfy any requirement imposed by an Environmental Agency
to bring the Property into compliance with applicable
Federal, State and local laws and regulations directly
relating to the existence on the Property of any Hazardous
Material. Without limitation on any other provision herein,
Buyer and Hamilton specifically acknowledge and agree that
they each hereby waive, release and discharge any claim it
or they have, might have had, or may have against Seller or
Seller's past, present and future employees, partners,
directors, officers, shareholders, attorneys, agents and
representatives and its and their respective successors and
assigns, with respect to the compliance with federal, state
or local statutory or common law, ordinance or regulation,
including, but not limited to, claims arising under the
Comprehensive Environmental Response Compensation Liability
Act ("CERCLA"), 42 U.S.C. Section 9601 et seq., California
Health and Safety Code Sections 25100 et seq., or any other
federal, state and local environmental laws pertaining to
the existence or release of hazardous substances from or at
the Property or the environmental condition of the Property
for claims arising from matters contained in the
Environmental Reports and in the Hamilton Letter. In
addition to, and not in limitation of any other
indemnification obligations of Buyer set forth in this
Agreement (including, without limitation, those set forth in
paragraph 8A hereof), Buyer and Hamilton shall jointly and
severally hold harmless, indemnify and defend Seller from
and against: (1) any and all claims, expenses, liability,
loss, damage or third party claims, known or unknown, in any
way arising from or related to matters contained in the
Environmental Reports, (2) any and all claims, expense,
liability, loss, damage or third party claims, known or
unknown, in way arising from or related to matters specified
in, or which can be reasonably inferred from, the Hamilton
Letter, and (3) all costs and expenses, including reasonable
attorney's fees, incurred by Seller as a result of the
foregoing. Any indemnification obligations set forth herein
shall be subject to the provisions of paragraph 8C hereof.
Buyer and Hamilton each hereby agree, represent and warrant
that the matters released herein are not limited to matters
which are known or disclosed, and Buyer and Hamilton each
hereby expressly waive and relinquish any and all rights and
benefits that either or both of them now have, or in the
future may have conferred upon it or them, by virtue of the
provisions of federal, state or local laws, rules or
regulations, including but not limited to the benefits of
California Civil Code Section 1542, which provides as
follows:
"A general release does not extend to claims which
the creditor does not know or suspect to exist in
his favor at the time of executing the release,
which if known by him must have materially
affected his settlement with the debtor."
Buyer's Initials Seller's Initials
___________________
Hamilton's Initials
Notwithstanding anything herein to the contrary, to the
extent that (i) Seller has expended monies prior to the
Closing Date in connection with the Environmental Compliance
Costs relating to the PVC replacement at the Property
performed by Seller as contemplated by the Environmental
Reports, or (ii) the Purchase Price has been adjusted to
take into account any post-closing environmental remediation
work at the Property to be done by Buyer, Seller shall have
the right, but not the obligation, to institute or continue
any legal, equitable or other action, suit, arbitration or
pursue any claim against Knight Equipment to recover such
monies.
The releases and indemnifications set forth in this
paragraph 7A(2)(f) shall survive the termination of this
Agreement or the consummation of the transactions hereunder
and shall not be deemed to have merged into any of the
documents executed or delivered in connection with the
consummation of the transactions hereunder.
B. Representations and Warranties of Buyer and
Hamilton. (1) Buyer represents and warrants to Seller
as follows: This Agreement and all agreements, instruments
and documents herein provided to be executed or to be caused
to be executed by Buyer are and on the Closing Date will be
duly authorized, executed and delivered by and are binding
upon Buyer; Buyer is a limited liability company, duly
organized and validly existing and in good standing under
the laws of the State of California, and is duly authorized
and qualified to do all things required of it under this
Agreement; and Buyer has the legal capacity and authority to
enter into this Agreement and consummate the transactions
herein provided without the consent or joinder of any other
party (except as otherwise set forth in this Agreement).
(2) Hamilton represents and warrants to Seller as
follows: This Agreement and all agreements, instruments and
documents herein provided to be executed or to be caused to
be executed by Hamilton are and on the Closing Date will be
duly authorized, executed and delivered by and are binding
upon Hamilton; Hamilton is a corporation, duly organized and
validly existing and in good standing under the laws of the
State of California, and is duly authorized and qualified to
do all things required of it under this Agreement; and
Hamilton has the legal capacity and authority to enter into
this Agreement and consummate the transactions herein
provided without the consent or joinder of any other party
(except as otherwise set forth in this Agreement).
C. Survival. Any cause of action of a party for a
breach of the foregoing representations and warranties shall
survive until the date which is six (6) months after the
Closing Date, at which time such representations and
warranties (and any cause of action resulting from a breach
thereof not then in litigation) shall terminate.
Notwithstanding the foregoing, if Buyer shall have actual
knowledge as of the Closing Date that any of the
representations or warranties of Seller contained herein are
false or inaccurate or that Seller or Hamilton is or are in
breach or default of any of its obligations under this
Agreement, and Buyer nonetheless close the transactions
hereunder and acquires the Property, then Seller shall have
no liability or obligation respecting such false or
inaccurate representations or warranties or other breach or
default (and any cause of action resulting therefrom shall
terminate upon such closing hereunder).
D. Interim Covenants of Seller. Until the Closing
Date or the sooner termination of this Agreement:
(1) Seller shall maintain the Property in the same
manner as prior hereto pursuant to its normal course of
business (such maintenance obligations not including
extraordinary capital expenditures or expenditures not
incurred in such normal course of business), subject to
reasonable wear and tear and further subject to destruction
by casualty or other events beyond the control of Seller.
(2) Seller shall not enter into any additional service
contracts or other similar agreements without the prior
consent of Buyer, except those deemed reasonably necessary
by Seller which are cancelable without payment of any fee on
30 days' notice (and Seller shall promptly provide Buyer
with copies of all such additional service contracts).
(3) Seller shall continue to offer the Property for
lease in the same manner as prior hereto pursuant to its
normal course of business and shall keep Buyer reasonably
informed as to the status of leasing prior to the Closing
Date. Seller shall not enter into any new leases or
modifications of existing leases thereafter after the date
hereof without the consent of Buyer (which consent will not
be unreasonably withheld or materially delayed). In the
event that Seller enters into a new lease or modifies an
existing lease after the date hereof without the consent of
Buyer, Buyer shall have the right to terminate this
Agreement by notifying Seller of its exercise of such right
by delivering to Seller written notice thereof within five
(5) days after Seller enters into such new lease or
modification. In the event of the delivery by Buyer to
Seller of such written notice, this Agreement, and the
obligations of the parties hereunder, shall terminate and
the Escrow Deposit shall be returned to Buyer. If Buyer
shall fail to deliver such written notice on or before the
end of such five (5) day period, Buyer shall be deemed to
have agreed that the new lease or modification is or are
acceptable to Buyer and that Buyer intends to proceed with
the acquisition of the Property (and, thereafter, Buyer
shall have no further right to terminate this Agreement as a
result of such new lease or modification). Notwithstanding
anything herein to the contrary, Buyer shall bear all costs
and expenses related to any new leases or modifications of
existing leases entered into after the Due Diligence Period
(unless Buyer shall have theretofore failed to deliver an
Approval Notice or the Additional Escrow Deposit pursuant to
paragraph 4B hereof).
8. Additional Indemnifications.
A. By Buyer. Buyer shall hold harmless, indemnify
and defend Seller from and against: (1) any and all third
party claims for Buyer's torts or breaches of contract
related to the Property and occurring on or after the
Closing Date, (2) any and all loss, damage or third party
claims in any way arising from Buyer's inspections or
examinations of the Property prior to the Closing Date,
(3) all costs and expenses, including reasonable attorney's
fees, incurred by Seller as a result of the foregoing.
B. By Seller. Except for matters covered by Buyer's
indemnification obligations set forth in paragraph 7A(2)(f)
above, Seller shall hold harmless, indemnify and defend
Buyer from and against: (1) any and all third party claims
for Seller's torts or breaches of contract related to the
Property and occurring prior to the Closing Date; and
(2) all costs and expenses, including reasonable attorney's
fees, incurred by the Buyer as a result of such claims. The
foregoing indemnity shall not cover any matters relating to
title or marketability of the Property (Buyer relying on the
coverage provided by the Owner's Policy as to such matters).
C. Generally. Each indemnification under this
Agreement shall be subject to the following provisions: The
indemnitee shall notify indemnitor of any such claim against
indemnitee within 30 days after it has notice of such claim,
but failure to notify indemnitor shall in no case prejudice
the rights of indemnitee under this Agreement unless
indemnitor shall be prejudiced by such failure and then only
to the extent of such prejudice. Should indemnitor fail to
discharge or undertake to defend indemnitee against such
liability within 10 days after the indemnitee gives the
indemnitor written notice of the same, then indemnitee may
settle such liability, and indemnitor's liability to
indemnitee shall be conclusively established by such
settlement, the amount of such liability to include both the
settlement consideration and the reasonable costs and
expenses, including attorneys' fees, incurred by indemnitee
in effecting such settlement.
9. DISPOSITION OF DEPOSITS. IF THE TRANSACTION
HEREIN PROVIDED SHALL NOT BE CLOSED BY REASON OF SELLER'S
DEFAULT UNDER THIS AGREEMENT OR THE FAILURE OF SATISFACTION
OF THE CONDITIONS DESCRIBED IN PARAGRAPH 4 HEREOF OR THE
TERMINATION OF THIS AGREEMENT IN ACCORDANCE WITH PARAGRAPH 6
HEREOF, THEN THE ESCROW DEPOSIT SHALL BE RETURNED TO BUYER,
AND NEITHER PARTY SHALL HAVE ANY FURTHER OBLIGATION OR
LIABILITY TO THE OTHER; PROVIDED, HOWEVER, IF THE
TRANSACTIONS HEREUNDER SHALL FAIL TO CLOSE SOLELY BY REASON
OF SELLER'S DEFAULT, AND BUYER SHALL HAVE FULLY PERFORMED
ITS OBLIGATIONS HEREUNDER AND SHALL BE READY, WILLING AND
ABLE TO CLOSE, THEN BUYER SHALL BE ENTITLED TO SPECIFICALLY
ENFORCE THIS AGREEMENT; AND PROVIDED FURTHER HOWEVER, IF
SELLER SHALL WILLFULLY TAKE ACTIONS SO AS TO PREVENT THE
AVAILABILITY OF SPECIFIC PERFORMANCE REMEDIES TO BUYER,
BUYER SHALL BE ENTITLED TO A RETURN OF THE ESCROW DEPOSIT
AND REIMBURSEMENT OF ITS ACTUAL OUT-OF-POCKET COSTS PAID TO
THIRD PARTIES IN CONNECTION WITH THE TRANSACTIONS HEREUNDER
(SUCH REIMBURSEMENT NOT TO EXCEED $50,000 IN THE AGGREGATE)
(BUT NO OTHER ACTION, FOR DAMAGES OR OTHERWISE, SHALL BE
PERMITTED). IN THE EVENT THE TRANSACTION HEREIN PROVIDED
SHALL NOT CLOSE BY REASON OF BUYER'S DEFAULT UNDER THIS
AGREEMENT, THEN THE ESCROW DEPOSIT SHALL BE DELIVERED TO
SELLER AS FULL COMPENSATION AND LIQUIDATED DAMAGES UNDER AND
IN CONNECTION WITH THIS AGREEMENT. IN THE EVENT THE
TRANSACTION HEREIN PROVIDED SHALL CLOSE, THE ESCROW DEPOSIT
SHALL BE APPLIED AS A PARTIAL PAYMENT OF THE PURCHASE PRICE.
IN CONNECTION WITH THE FOREGOING, THE PARTIES RECOGNIZE THAT
SELLER WILL INCUR EXPENSE IN CONNECTION WITH THE TRANSACTION
CONTEMPLATED BY THIS AGREEMENT AND THAT THE PROPERTY WILL BE
REMOVED FROM THE MARKET; FURTHER, THAT IT IS EXTREMELY
DIFFICULT AND IMPRACTICABLE TO ASCERTAIN THE EXTENT OF
DETRIMENT TO SELLER CAUSED BY THE BREACH BY BUYER UNDER THIS
AGREEMENT AND THE FAILURE OF THE CONSUMMATION OF THE
TRANSACTION CONTEMPLATED BY THIS AGREEMENT OR THE AMOUNT OF
COMPENSATION SELLER SHOULD RECEIVE AS A RESULT OF BUYER'S
BREACH OR DEFAULT. IN THE EVENT THE SALE OF THE PROPERTY
SHALL NOT BE CONSUMMATED ON ACCOUNT OF BUYER'S DEFAULT, THEN
THE RETENTION OF THE ESCROW DEPOSIT SHALL BE SELLER'S SOLE
AND
EXCLUSIVE REMEDY UNDER THIS AGREEMENT BY REASON OF SUCH
DEFAULT, SUBJECT TO THE PROVISIONS OF PARAGRAPH 10I HEREOF.
Seller's Initials Buyer's Initials
10. Miscellaneous.
A. Brokers.
(1) Except as provided in subparagraph (2) below,
Seller represents and warrants to Buyer, and Buyer
represents and warrants to Seller, that no broker or finder
has been engaged by it, respectively, in connection with any
of the transactions contemplated by this Agreement or to its
knowledge is in any way connected with any of such
transactions. In the event of a claim for broker's or
finder's fee or commissions in connection herewith, then
Seller shall indemnify and defend Buyer from the same if it
shall be based upon any statement or agreement alleged to
have been made by Seller, and, except for any claims by
Broker which are Seller's responsibility hereunder, Buyer
shall indemnify and defend Seller from the same if it shall
be based upon any statement or agreement alleged to have
been made by Buyer. The indemnification obligations under
this paragraph 10 A(1) shall survive the closing of the
transactions hereunder or the earlier termination of this
Agreement.
(2) If and only if the sale contemplated herein
closes, Seller agrees to pay a brokerage commission to
Richard Ellis, LLC and CB Commercial (collectively, the
"Brokers") pursuant to a separate written agreement. The
foregoing payment shall be the sole commissions, fees or
payments payable to Brokers in connection with the
transactions hereunder.
B. Limitation of Liability.
(1) Notwithstanding anything to the contrary
contained herein, if the closing of the transactions
hereunder shall have occurred (and Buyer shall not have
waived, relinquished or released any applicable rights in
further limitation), the aggregate liability of Seller
arising pursuant to or in connection with the
representations, warranties, indemnifications, covenants or
other obligations (whether express or implied) of Seller
under this Agreement (or any document executed or delivered
in connection herewith) shall not exceed $250,000.
(2) No constituent partner in or agent of Seller,
nor any advisor, trustee, director, officer, employee,
beneficiary, shareholder, participant, representative or
agent of any corporation or trust that is or becomes a
constituent partner in Seller (including, but not limited
to, JMB Realty Corporation and the individual(s) specified
in paragraph 7A(2) above) shall have any personal liability,
directly or indirectly, under or in connection with this
Agreement or any agreement made or entered into under or
pursuant to the provisions of this Agreement, or any
amendment or amendments to any of the foregoing made at any
time or times, heretofore or hereafter, and Buyer and its
successors and assigns and, without limitation, all other
persons and entities, shall look solely to Seller's assets
for the payment of any claim or for any performance, and
Buyer, on behalf of itself and its successors and assigns,
hereby waives any and all such personal liability.
Notwithstanding anything to the contrary contained in this
Agreement, neither the negative capital account of any
constituent partner in Seller (or in any other constituent
partner of Seller), nor any obligation of any constituent
partner in Seller (or in any other constituent partner of
Seller) to restore a negative capital account or to
contribute capital to Seller (or to any other constituent
partner of Seller), shall at any time be deemed to be the
property or an asset of Seller or any such other constituent
partner (and neither Buyer nor any of its successors or
assigns shall have any right to collect, enforce or proceed
against or with respect to any such negative capital account
of partner's obligation to restore or contribute).
(3) No constituent partner in or agent of Buyer,
nor any advisor, trustee, director, officer, employee,
beneficiary, shareholder, participant, representative or
agent of any corporation or trust that is or becomes a
constituent partner in Buyer shall have any personal
liability, directly or indirectly, under or in connection
with this Agreement or any agreement made or entered into
under or pursuant to the provisions of this Agreement, or
any amendment or amendments to any of the foregoing made at
any time or times, heretofore or hereafter, and Seller and
its successors and assigns and, without limitation, all
other persons and entities, shall look solely to Buyer's
assets for the payment of any claim or for any performance,
and Seller, on behalf of itself and its successors and
assigns, hereby waives any and all such personal liability.
Notwithstanding anything to the contrary contained in this
Agreement, neither the negative capital account of any
constituent partner in Buyer (or in any other constituent
partner of Buyer), nor any obligation of any constituent
partner in Buyer (or in any other constituent partner of
Buyer) to restore a negative capital account or to
contribute capital to Buyer (or to any other constituent
partner of Buyer), shall at any time be deemed to be the
property or an asset of Buyer or any such other constituent
partner (and neither Seller nor any of its successors or
assigns shall have any right to collect, enforce or proceed
against or with respect to any such negative capital account
of partner's obligation to restore or contribute).
(4) No constituent partner in or agent of
Hamilton, nor any advisor, trustee, director, officer,
employee, beneficiary, shareholder, participant,
representative or agent of any corporation or trust that is
or becomes a constituent partner in Hamilton shall have any
personal liability, directly or indirectly, under or in
connection with this Agreement or any agreement made or
entered into under or pursuant to the provisions of this
Agreement, or any amendment or amendments to any of the
foregoing made at any time or times, heretofore or
hereafter, and Seller and its successors and assigns and,
without limitation, all other persons and entities, shall
look solely to Hamilton's assets for the payment of any
claim or for any performance, and Seller, on behalf of
itself and its successors and assigns, hereby waives any and
all such personal liability. Notwithstanding anything to
the contrary contained in this Agreement, neither the
negative capital account of any constituent partner in
Hamilton (or in any other constituent partner of Hamilton),
nor any obligation of any constituent partner in Hamilton
(or in any other constituent partner of Hamilton) to restore
a negative capital account or to contribute capital to
Hamilton (or to any other constituent partner of Hamilton),
shall at any time be deemed to be the property or an asset
of Hamilton or any such other constituent partner (and
neither Seller nor any of its successors or assigns shall
have any right to collect, enforce or proceed against or
with respect to any such negative capital account of
partner's obligation to restore or contribute).
C. Entire Agreement. This Agreement contains the
entire agreement between the parties respecting the matters
herein set forth and supersedes all prior agreements between
the parties hereto respecting such matters. This Agreement
may not be modified or amended except by written agreement
signed by both parties.
D. Time of the Essence. Time is of the essence of
this Agreement.
E. Interpretation. Paragraph headings shall not be
used in construing this Agreement. Each party acknowledges
that such party and its counsel, after negotiation and
consultation, have reviewed and revised this Agreement. As
such, the terms of this Agreement shall be fairly construed
and the usual rule of construction, to the effect that any
ambiguities herein should be resolved against the drafting
party, shall not be employed in the interpretation of this
Agreement or any amendments, modifications or exhibits
hereto or thereto.
F. Governing Law. This Agreement shall be construed
and enforced in accordance with the laws of the State of
California.
G. Successors and Assigns. Buyer may not assign or
transfer its rights or obligations under this Agreement
without the prior written consent of Seller (in which event
such transferee shall assume in writing all of the
transferor's obligations hereunder, but such transferor
shall not be released from its obligations hereunder);
provided, however, Buyer may assign its interest in this
Agreement to a limited partnership in which Buyer is the
managing general partner and has not less than a 51%
interest in capital and profits in such limited partnership.
No consent given by Seller to any transfer or assignment of
Buyer's rights or obligations hereunder shall be construed
as a consent to any other transfer or assignment of Buyer's
rights or obligations hereunder. No transfer or assignment
in violation of the provisions hereof shall be valid or
enforceable. Subject to the foregoing, this Agreement and
the terms and provisions hereof shall inure to the benefit
of and be binding upon the successors and assigns of the
parties.
H. Notices. Any notice which a party is required or
may desire to give the other shall be in writing and shall
be sent by personal delivery or by mail (either [i] by
United States registered or certified mail, return receipt
requested, postage prepaid, or [ii] by Federal Express or
similar generally recognized overnight carrier regularly
providing proof of delivery), addressed as follows (subject
to the right of a party to designate a different address for
itself by notice similarly given):
To Buyer or Hamilton:
John W. Hamilton Company
620 Newport Center Drive, Ste. 125
Newport Beach, California 92660
Attention: Mr. John Hamilton
With Copy To:
Barger & Wolen
19800 MacArthur Blvd., 8th Floor
Irvine, California 92612
Attention: Dennis W. Harwood, Esq.
To Seller:
Carlyle Income Plus, Ltd.
c/o JMB Realty Corporation
900 North Michigan Avenue
Chicago, Illinois 60611
Attention: Brian K. Ellison
With Copies To:
Pircher, Nichols & Meeks
1999 Avenue of the Stars
Suite 2600
Los Angeles, California 90067
Attention: Real Estate Notices (GML)
And To:
Richard Ellis, LLC
Three First National Plaza
Chicago, Illinois 60602
Attention: Mr. James G. Abbey
Any notice so given by mail shall be deemed to have been
given as of the date of delivery (whether accepted or
refused) established by U.S. Post Office return receipt or
the overnight carrier's proof of delivery, as the case may
be. Any such notice not so given shall be deemed given upon
receipt of the same by the party to whom the same is to be
given.
I. Legal Costs. The parties hereto agree that they
shall pay directly any and all legal costs which they have
incurred on their own behalf in the preparation of this
Agreement, all deeds and other agreements pertaining to this
transaction and that such legal costs shall not be part of
the closing costs. In addition, if either Buyer or Seller
brings any suit or other proceeding with respect to the
subject matter or the enforcement of this Agreement, the
prevailing party (as determined by the court, agency or
other authority before which such suit or proceeding is
commenced), in addition to such other relief as may be
awarded, shall be entitled to recover reasonable attorneys'
fees, expenses and costs of investigation actually incurred.
The foregoing includes, but is not limited to, attorneys'
fees, expenses and costs of investigation (including,
without limitation, those incurred in appellate
proceedings), costs incurred in establishing the right to
indemnification, or in any action or participation in, or in
connection with, any case or proceeding under Chapter 7, 11
or 13 of the Bankruptcy Code (11 United States Code Sections
101 et seq.), or any successor statutes.
J. Counterparts. This Agreement may be executed in
one or more counterparts, each of which shall be deemed an
original, but all of which shall constitute one and the same
document.
K. Reporting Person. Seller and Buyer hereby
designate Escrow Holder as the Real Estate Reporting Person
for purposes of Section 6045 of the Internal Revenue Code;
and Escrow Holder, by
its execution below, hereby accepts such appointment.
IN WITNESS WHEREOF, the parties have executed this
Agreement as of the day and year first above written.
CARLYLE INCOME PLUS, LTD.
an Illinois limited partnership
By: JMB REALTY CORPORATION,
a Delaware corporation
Corporate General Partner
By:
Name:
Title:
"Seller"
HAMILTON AIRWAY I, LLC,
a California limited liability
company
By: JOHN W. HAMILTON COMPANY,
a California corporation,
Managing Member
By:
___________________________
Name: _____________________
Title: ____________________
"Buyer"
JOHN W. HAMILTON COMPANY,
a California corporation
By: ______________________________
Name: ________________________
Title: _______________________
"Hamilton"
ESCROW HOLDER'S ACKNOWLEDGEMENT
The undersigned hereby executes this Agreement to
evidence its agreement to act as Escrow Holder in accordance
with the terms of this Agreement.
Date: ________________ FIRST AMERICAN TITLE COMPANY,
a ________________________
By:___________________________________
Name:_________________________________
Title:________________________________
"Escrow Holder"
EXHIBIT LIST
"A" - Property Description
"B" - Personal Property List
"C-1" - Permitted Exceptions and Disappoved
Matters
"C-2" - Form of Knight Estoppel Certificate
"D" - Deed
"E" - Assignment and Assumption Agreement
"F" - Exceptions to
Seller's Representations and
Warranties
"G" - List of Leases
"H" - Service Agreements
"I" - Environmental Reports
EXHIBIT "A"
Lots 14 and 15 of Tract No. 7486, in the City of Costa Mesa,
as shown on a map recorded in book 286, pages 42 to 44
inclusive, of Miscellaneous Maps, records of Orange County.
EXCEPT all oil, oil rights, minerals, mineral rights,
natural gas, natural gas rights, and other hydrocarbons by
whatsoever name known, that may be within or under the
Parcel of land hereinabove described together with the
perpetual right of drilling, mining, exploring and operating
therefor and storing in and removing the same from said land
or any other land, including the right to whipstock or
directionally drill and mine from lands other than those
hereinabove described, and to bottom such whipstocked or
directionally drilled wells, tunnels and shafts under and
beneath or beyond the exterior limits thereof, and to
redrill, retunnel, equip, maintain, repair, deepen and
operate such wells or mines without, however, the right to
drill, mine, store, explore and operate through the surface
or the upper 500 feet of the subsurface of the land
hereinabove described as reserved in the deed from Irvine
Industrial Complex, a California corporation, recorded
October 29, 1971 in book 9867 pages 917, 919 and 921 of
Official Records.
EXHIBIT "B"
LIST OF PERSONAL PROPERTY
None.
EXHIBIT "C-1"
A) PERMITTED EXCEPTIONS
(See Attached)
B) DISAPPROVED MATTERS
None.
EXHIBIT "C-2"
FORM OF ESTOPPEL CERTIFICATE
EXHIBIT "C-3"
FORM OF KNIGHT ESTOPPEL CERTIFICATE
EXHIBIT "F"
EXCEPTIONS TO SELLER'S REPRESENTAIONS AND WARRANTIES
None.
EXHIBIT "G"
LIST OF LEASES
Address Tenant Name Square Footage
2945 Airway Knight Equipment 35,304
350 Lear Lumenyte International 17,602
2975 Airway CVI 21,948
EXHIBIT "H"
LIST OF SERVICE AGREEMENTS
1. Environment Unlimited--Landscaping
EXHIBIT "I-1"
LIST OF ENVIRONMENTAL REPORTS
1. Phase I Environmental Integrity Assessment, prepared by
A.T. Kearney, dated August, 1988.
2. Soil Sampling Report, prepared by Hygienetics
Environmental Services Inc., dated September, 1996.
3. Phase I Environmental Site Assessment, prepared by ATC
Associates, Inc., dated December, 1996.
EXHIBIT "I-2"
ENVIRONMENTAL ISSUE LIST
