<PAGE> 1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-K
[x] Annual Report Pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934
For the fiscal year ended December 31, 1999
OR
[ ] Transition Report Pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934 [No Fee Required]
Commission File Number 0-17684
ML/EQ REAL ESTATE PORTFOLIO, L.P.
(Exact name of registrant as specified in governing instrument)
Delaware 58-1739523
(State of organization) (IRS Employer Identification No.)
3424 Peachtree Road, N.E., Suite 800
Atlanta, Georgia 30326
(Address of Principal Executive Offices) (Zip Code)
Registrant's telephone number, including area code: (404) 239-5002
Securities registered pursuant to Section 12(b) of the Act:
Title of each class Name of each exchange on which registered
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None None
Securities registered pursuant to Section 12(g) of the Act:
Beneficial Assignee Certificates ("BACs")
representing assignments of Limited Partnership Interests
(Title of Class)
Limited Partnership Interests underlying BACs
(Title of Class)
Indicate by check mark whether the registrant (1) has filed all reports required
to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during
the preceding 12 months (or for such shorter period that the registrant was
required to file such reports), and (2) has been subject to such filing
requirements for the past 90 days.
Yes x No
------- ------
Indicate by check mark if disclosure of delinquent filers pursuant to Item 405
of Regulation S-K is not contained herein, and will not be contained, to the
best of registrant's knowledge, in definitive proxy or information statements
incorporated by reference in Part III of this Form 10-K or any amendment to this
Form 10-K. [x]
State the aggregate market value of the voting stock held by non-affiliates of
the Registrant.
Not Applicable
DOCUMENTS INCORPORATED BY REFERENCE
Selected portions of the Prospectus of the Registrant dated April 23, 1987, as
supplemented by supplements dated March 3, 1988 and March 17, 1988 (File No.
33-11064) filed pursuant to Rule 424 of the Securities Act of 1933, as amended,
are incorporated by reference in Parts I and II of this Annual Report on Form
10-K.
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PART I.
ITEM 1. BUSINESS
Certain of the statements contained in this Annual Report on Form 10-K
constitute forward-looking statements within the meaning of Section 27A of the
Securities Act of 1933, as amended, and Section 21E of the Securities Exchange
Act of 1934, as amended. These statements include, without limitation,
statements regarding the expected future sale of the Property (as hereinafter
defined). These forward-looking statements are included in this Annual Report on
Form 10-K based on the intent, belief or current expectations of the Partnership
(as hereinafter defined). However, such forward-looking statements are not
guarantees of future performance and involve risks and uncertainties, and actual
results may differ materially from those projected in the forward-looking
statements as a result of various factors. Although the Partnership believes
that the expectations reflected in such forward-looking statements are based
upon reasonable assumptions, it can give no assurance that its expectations will
be achieved. Factors that could cause actual results to differ materially from
the Partnership's current expectations include general local market conditions,
the investment climate for real estate, leasing activities, individual property
issues, construction delays due to unavailability of materials, weather
conditions or other causes, and the other risks detailed from time to time in
the Partnership's reports filed with the Securities and Exchange Commission (the
"SEC") .
General. The registrant, ML/EQ Real Estate Portfolio, L.P. (the
"Partnership"), is a limited partnership formed on December 22, 1986 under the
Revised Uniform Limited Partnership Act of the State of Delaware. The
Partnership operates pursuant to the Amended and Restated Agreement of Limited
Partnership dated as of April 23, 1987 as amended as of February 9, 1988 (the
"Partnership Agreement"), which is included as an exhibit to this annual report.
Capitalized terms used in this annual report that are not defined herein have
the same meaning as in the Partnership Agreement.
The Partnership's two general partners are EREIM Managers Corp., a
Delaware corporation (the "Managing General Partner"), and MLH Real Estate
Associates Limited Partnership, a Delaware limited partnership (the "Associate
General Partner" and, together with the Managing General Partner the "General
Partners"). The Managing General Partner is an indirect, wholly-owned subsidiary
of The Equitable Life Assurance Society of the United States ("Equitable") and
the general partner of the Associate General Partner is an affiliate of Merrill
Lynch & Co., Inc. ("Merrill Lynch").
The Managing General Partner was a wholly-owned subsidiary of Equitable
Real Estate Investment Management, Inc. ("Equitable Real Estate"), which was a
wholly owned subsidiary of Equitable. On June 10, 1997, Equitable sold Equitable
Real Estate to a subsidiary of Lend Lease Corporation Limited. The shares of the
Managing General Partner were not included in the sale and the Managing General
Partner continues to be a wholly-owned indirect subsidiary of Equitable. Lend
Lease Corporation Limited merged its existing U.S. real estate investment
advisor, The Yarmouth Group, Inc., into Equitable Real Estate and changed the
name of Equitable Real Estate to ERE Yarmouth, Inc. ("ERE Yarmouth"). On July
13, 1998, Lend Lease
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Corporation Limited changed the name of ERE Yarmouth to Lend Lease Real Estate
Investments, Inc. ("Lend Lease"). Lend Lease was retained by the Managing
General Partner, at the Managing General Partner's expense, to continue
providing the same services with respect to the Partnership, EML Associates (the
"Venture"), a joint venture with EREIM LP Associates, a New York general
partnership between Equitable and EREIM LP Corp., a wholly-owned subsidiary of
Equitable, and the properties that Equitable Real Estate had historically
provided to the Managing General Partner. The Venture was formed in March 1988.
See "Advisory Agreement."
The Partnership offered to the public $150,000,000 of Beneficial
Assignee Certificates (the "BACs"), which evidence the economic rights
attributable to limited partnership interests in the Partnership (the
"Interests"), in an offering (the "Offering") which commenced in 1987. The
Offering was made pursuant to a Prospectus dated April 23, 1987, as supplemented
by Supplements dated December 29, 1987 (the "December Supplement"), March 3,
1988 (the "March 3 Supplement") and March 17, 1988 (the "March 17 Supplement"),
filed with the SEC in connection with a Registration Statement on Form S-11 (No.
33-11064). The Prospectus as supplemented is hereinafter referred to as the
"Prospectus." The Offering terminated on March 29, 1988. On March 10, 1988, the
Partnership's initial investor closing occurred at which time the Partnership
received $92,190,120, representing the proceeds from the sale of 4,609,506 BACs.
On May 3, 1988, the Partnership's final investor closing occurred at which time
the Partnership received $16,294,380, representing the proceeds from the sale of
an additional 814,719 BACs. In total, the Partnership realized gross proceeds of
$108,484,500 from the Offering, representing the sale of 5,424,225 BACs.
Following its investor closings, the Partnership contributed the net
proceeds of the Offering to the Venture. The capital of the Venture was provided
approximately 80% by the Partnership and approximately 20% by EREIM LP
Associates.
Effective as of January 1, 1997, the Partnership entered into an
amendment to the Joint Venture Agreement of the Venture between the Partnership
and EREIM LP Associates pursuant to which EREIM LP Associates agreed to defer,
without interest, its rights to receive 20% of the Venture's distributions of
sale or financing proceeds until the Partnership has received aggregate
distributions from the Venture in an amount equal to the capital contributions
made to the Partnership by the BAC holders plus a noncompounded cumulative
return computed at the rate of 9.75% per annum on contributions outstanding from
time to time. Prior to the amendment, EREIM LP Associates had a right to receive
20% of all of the Venture's distributions of sale or financing proceeds on a
pari passu basis with the Partnership. The amendment has the effect of
accelerating the return of original contributions to BAC holders to the extent
that sale or financing proceeds are realized prior to the dissolution of the
Partnership.
Business of the Partnership. The Partnership was formed to invest in a
diversified portfolio of properties and mortgage loans. The Partnership
considers its business to represent one industry segment, investment in real
property.
Following the Offering, the Venture acquired a diversified portfolio of
real properties and mortgage loans secured by real properties. Based on original
acquisition prices, approximately
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52% of the Venture's original contributed capital was invested in existing
income-producing real properties acquired without permanent mortgage
indebtedness, approximately 25% of such capital was invested in zero coupon or
similar mortgage notes, and the balance was invested in fixed-rate first
mortgage loans. The properties that secured the mortgage loans included
commercial, industrial, residential, retail and warehouse/distribution
properties. The Venture has an undivided interest in one property ("Northland
Center" or the "Property") as a tenant in common with Equitable, which Property
was transferred to the Venture and Equitable on July 22, 1994. All references
herein to the Venture's ownership of Northland Center shall be deemed to refer
to the Venture's undivided interest as a tenant in common with Equitable unless
otherwise indicated. The Partnership conducts an on-going analysis of the
Venture's properties as a basis for hold/sell recommendations for the
properties. As a result of the analysis, three of the Venture's properties were
sold in 1999. The remaining Property, Northland Center, was classified as held
for sale. The Partnership is continuing its efforts to sell the remaining
Property. However, there is no certainty as to when the Property will be sold.
The Venture's interest in Northland Center represented approximately 100%, 49%
and 37% of the real estate investments owned by the Venture as of December 31,
1999, 1998 and 1997, respectively, and approximately 71%, 53% and 42% of total
revenues of the Venture for the years ended December 31, 1999, 1998 and 1997,
respectively.
At December 31, 1999, the Venture owned an undivided interest in
Northland Center, originally a property that secured a zero coupon mortgage note
and was transferred to the Venture and Equitable during 1994 in a deed in lieu
of foreclosure transaction. The estimated fair market value of the Venture's
undivided interest in the Property's zero coupon mortgage note receivable
immediately preceding the transfer was approximately $32.2 million. The carrying
value of the Property was adjusted to the lower of cost or estimated net
realizable value, resulting in a loss of approximately $18.9 million in 1999.
Reference is made to Item 2. PROPERTIES for information concerning the Property.
As described above, the Partnership conducts an on-going analysis of
the Venture's properties as a basis for hold/sell recommendations for the
properties. As a result of the analysis, on January 27, 1999, the Venture
completed the sale of Richland Mall for $9.01 million. On July 23, 1999 the
Venture completed the sale of the 300 Delaware Property for $8.75 million, and
on October 28, 1999, the Venture completed the sale of the 16/18 Sentry Park
West Property for $29.05 million.
Individual real estate properties held for sale, including deferred
leasing costs and deferred rent concessions, are recorded at lower of cost or
estimated fair market value, less estimated costs to sell. Depreciation is not
recorded for properties classified as held for sale.
As described in the Partnership Agreement, liquidation or dissolution
of the Venture will be delayed until the sale, retirement or other disposition
of the Property held by the Venture (other than purchase money notes from the
sale of a property) or the liquidation of the Partnership, but not beyond
December 31, 2002. While the Partnership Agreement provides that the term of the
Partnership may extend until December 31, 2002, the Partnership's present
intention is to sell the remaining Property in advance of the foregoing date.
See INVESTMENT GUARANTY AGREEMENT AND RELATED MATTERS below.
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Neither the Partnership nor the Venture has any real property
investments located outside the United States. The Partnership has no employees.
Leasing Information. At December 31, 1999, the Venture owned an
undivided interest in the Property which is classified as held for sale. See
Item 2. PROPERTIES for information regarding percentages of space under lease
for the Property, as well as information relating to the percentage of rentable
space at the Property.
Competition. The Property may compete with other properties in the area
in which it is located for, among other things, desirable tenants. Competitors
may include properties owned or managed directly or indirectly by Equitable or
Lend Lease or their subsidiaries or affiliates or by affiliates of the Associate
General Partner. Owners of some of these properties may have greater resources
than the Venture and/or may be willing or able to make greater concessions
(e.g., lower rent or higher allowances for tenant improvements) to attract
tenants. Similarly, tenants of the Property may compete for business with other
businesses in the area. While it is currently the intention of management to
sell the Property, such competition may adversely affect the business (and, in
some cases, the viability) of such tenants and, particularly in the case of
retail tenants, may reduce the amount of rent received by the Venture under
percentage rent provisions.
The Venture's income from the Property may be affected by many factors,
including reductions in rental income due to an inability to maintain occupancy
levels, adverse changes in general economic conditions, adverse local conditions
(such as decreases in demand for similar or competing facilities or competitive
over-building, adverse changes in tax, real estate, zoning and environmental
laws or decreases in employment), energy shortages or increased energy costs, or
acts of God (such as earthquakes and floods). See Item 2. PROPERTIES for a
description of difficulties experienced by the Property.
Conflicts of Interest. Equitable and its subsidiaries and affiliates
and its advisor, Lend Lease, are among the largest owners and managers of real
estate assets in the country and certain activities in which they currently or
in the future may engage will be competitive with the Partnership and the
Venture. As Managing General Partner of the managing partner of the Venture,
EREIM Managers Corp. may encounter various conflicts of interest in managing the
Partnership's and the Venture's businesses. These conflicts may, for example,
arise in connection with the allocation of leasing or sale opportunities,
selection of service providers such as property managers (including whether to
retain an affiliate or a non-affiliate), determination to exercise or forbear
exercise of certain rights (e.g., eviction or foreclosure), or the timing of
investment dispositions or liquidations. While the Managing General Partner
believes that it will be able to resolve such conflicts in an equitable manner,
it is possible that such conflicts may not be resolved in favor of the
Partnership or the Venture.
The General Partners or their affiliates are entitled to receive
various recurring fees for the supervision and administration of partnership
assets and for providing the guaranty of minimum return to BAC holders and to be
reimbursed for certain expenses incurred on behalf of the Partnership. At
December 31, 1999, 1998 and 1997 the accrued balance for these fees and
reimbursements totaled approximately $195,000, $480,000 and $630,000,
respectively.
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Supervisory and mortgage loan servicing fees paid by the Partnership to the
Managing General Partner were approximately $362,000, $612,000, and $747,000 for
the years ended December 31, 1999, 1998 and 1997, respectively. These amounts,
which were then paid by the Managing General Partner at its sole expense to Lend
Lease or its predecessor as asset management fees, are included in the
statements of operations as asset management fees and as components of general
and administrative expense.
Advisory Agreement. On June 10, 1997, in connection with Lend Lease
Corporation Limited's purchase of Equitable Real Estate, the Managing General
Partner entered into a real estate investment advisory agreement with Equitable
Real Estate whereby Equitable Real Estate (currently known as Lend Lease) agreed
to perform, at the Managing General Partner's sole expense, certain duties and
obligations in respect of the Partnership. The agreement automatically
terminates upon such date as (i) all of the Venture's properties are sold, (ii)
all mortgage loans are paid and discharged and (iii) the affairs of the
Partnership and the Venture are fully wound up, unless sooner terminated by the
Managing General Partner. The agreement is terminable by the Managing General
Partner (a) upon a material breach by Lend Lease, (b) for any reason or without
cause upon ten days prior written notice to Lend Lease by the Managing General
Partner or (c) upon the termination of the investment advisory agreement between
Lend Lease and Equitable with respect to Equitable's general account.
Working Capital Reserves. The Partnership intends to maintain adequate
working capital reserves to meet short and long-term commitments. The
Partnership's reserves may be increased or decreased from time to time based
upon the Managing General Partner's determination as to their adequacy. See Item
7. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF
OPERATIONS.
Insurance. The Property is covered under insurance contracts that
provide comprehensive general liability as well as physical damage protection.
Such insurance contracts also cover other properties in which Equitable, its
subsidiaries, or its insurance company separate accounts have an ownership
interest. Although the Venture carries comprehensive insurance on the Property,
there are certain risks (such as earthquakes, floods and wars) that may be
uninsurable or not fully insurable at a cost believed to be economically
feasible. Moreover, there can be no assurance that particular risks that are
currently insurable will continue to be so, or that current levels of coverage
will continue to be available at a cost believed to be economically feasible.
The Managing General Partner, on behalf of the Partnership as managing partner
of the Venture, will use its discretion in determining the scope of coverage,
limits and deductible provisions on insurance, with a view to maintaining
appropriate insurance on the Property at an appropriate cost.
Investment Guaranty Agreement and Related Matters. Under an investment
guaranty agreement dated March 10, 1988 by and between EREIM LP Associates and
the Venture (the "Guaranty Agreement"), EREIM LP Associates has guaranteed to
pay the Venture, if necessary, ninety days after the earlier of the sale,
retirement, or other disposition of the Property, or the liquidation of the
Partnership, an amount which when added to all distributions from the
Partnership to the holders of BACs ("BAC Holders") will enable the Partnership
to provide the BAC Holders with a minimum return (the "Minimum Return") equal to
their Capital
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Contributions plus a simple annual return equal to 9.75% multiplied by their
Adjusted Capital Contributions (as defined in the Guaranty Agreement),
calculated from the investor closing at which the BAC Holder acquired its BACs.
Adjusted Capital Contributions are the limited partners' original cash
contributions reduced by distributions of sale or financing proceeds and by
distributions of certain funds in reserve, as more particularly described in the
Partnership Agreement. The limited partners' original cash contributions have
been adjusted by that portion of distributions paid through December 31, 1999
resulting from cash available to the Partnership as a result of sale or
financing proceeds paid by the Venture. The Minimum Return is subject to
reduction in the event that certain taxes, other than local property taxes, are
imposed on the Partnership or the Venture, and is also subject to certain other
limitations set forth in the Prospectus. If there were no distributions until
December 31, 2002, the expiration of the term of the Partnership, the maximum
liability of EREIM LP Associates to the Venture under the Guaranty Agreement as
of December 31, 1999 is limited to $73,813,456, plus the value of EREIM LP
Associates' interest in the Venture less any amounts contributed by EREIM LP
Associates to the Venture to fund cash deficits. The unpaid cumulative Minimum
Return under the Guaranty Agreement as of December 31, 1999 was $13.61 per BAC.
The unpaid cumulative Minimum Return under the Guaranty Agreement does not
necessarily represent the price at which a BAC may be purchased or sold. While
the Partnership Agreement provides that the term of the Partnership may extend
until December 31, 2002, the Partnership's present intention is to sell the
remaining Property in advance of the foregoing date. The Partnership is
continuing its efforts to sell the remaining Property. However, there is no
certainty as to when the remaining Property will be sold.
The Venture has assigned the Guaranty Agreement to the Partnership in
exchange for the Partnership's assumption of the Venture's obligations
thereunder, including the obligation to pay the Guaranty Fee. Any moneys
distributed by the Partnership to BAC Holders and/or limited partners of the
Partnership ("Limited Partners") on account of payments made under the Guaranty
Agreement will be distributed to BAC Holders and/or Limited Partners based on
the total number of BACs or Interests owned by each BAC Holder and/or Limited
Partner as of the date the Minimum Return is calculated.
Capital contributions by the BAC holders to the Partnership totaled
$108,484,500. As of December 31, 1999, the cumulative 9.75% simple annual return
was $111,468,412. As of December 31, 1999, cumulative distributions by the
Partnership to the BAC holders totaled $146,139,456, of which $27,663,548 is
attributable to income from operations and $118,475,908 is attributable to sales
of Venture assets, principal payments on mortgage loans, and other capital
events. Management does not currently believe that future cash distributions to
the Limited Partners from liquidation of Venture assets will be sufficient to
provide the specified Minimum Return. Accordingly, the shortfall will be funded
by the guarantor, up to the above described maximum.
The obligations of EREIM LP Associates under the Guaranty Agreement
will terminate if, upon the written consent or the affirmative vote of BAC
Holders or Limited Partners owning more than 50% of the Interests, either (i)
EREIM Managers Corp. is removed as the Managing General Partner of the
Partnership or (ii) the Partnership is dissolved without the consent of EREIM
Managers Corp.
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As described above, the general partners of EREIM LP Associates are
EREIM LP Corp., a wholly-owned subsidiary of Equitable, and Equitable. The
obligations of EREIM LP Associates under the Guaranty Agreement are nonrecourse
to Equitable but are recourse as to EREIM LP Corp. Equitable has entered into an
agreement dated as of March 10, 1988 (the "Keep Well Agreement") with EREIM LP
Corp. which provides that Equitable will make capital contributions to EREIM LP
Corp. in such amounts as to permit EREIM LP Corp. to pay its obligations with
respect to the Guaranty Agreement as they become due; provided, however, that
the maximum liability of Equitable under the Keep Well Agreement is an amount
equal to the lesser of (i) two percent of the total admitted assets of Equitable
(as determined in accordance with New York Insurance Law) or (ii) $271,211,250.
If there were no distribution until December 31, 2002, the expiration of the
term of the Partnership, and subject to the foregoing description of the
Guaranty Agreement, the obligations of Equitable under the Keep Well Agreement
as of December 31, 1999 would be limited to $73,813,456. The Keep Well Agreement
provides that only EREIM LP Corp. and its successors will have the right to
enforce Equitable's obligations thereunder.
The Keep Well Agreement is an unsecured contractual liability of
Equitable and is not a policy of insurance. Since the Guaranty Agreement is
nonrecourse as to Equitable and the obligation under the Keep Well Agreement to
pay all obligations of EREIM LP Corp. is not for the benefit of third parties,
including the Partnership and BAC Holders, BAC Holders will have no direct cause
of action against Equitable to enforce the obligations of Equitable under the
Keep Well Agreement. However, if the assets of EREIM LP Associates and EREIM LP
Corp. are insufficient to satisfy EREIM LP Associates' obligations under the
Guaranty Agreement, a proceeding in bankruptcy could be commenced against EREIM
LP Corp. In such event the debtor-in-possession or trustee in bankruptcy would
have a claim against Equitable to compel performance under the Keep Well
Agreement. If the Managing General Partner, which is an affiliate of Equitable,
did not commence an involuntary bankruptcy proceeding against EREIM LP Corp. on
behalf of the Partnership, MLH Real Estate Assignor Inc., the initial limited
partner of the Partnership (the "Initial Limited Partner"), on behalf of BAC
Holders would have a right to compel the Partnership to commence such
involuntary bankruptcy proceeding.
The New York Insurance Law contains provisions limiting the amount of
an investment by a New York life insurance company, such as Equitable, in
certain of its subsidiaries and in real estate. The Keep Well Agreement provides
that Equitable's obligation thereunder is subject to compliance with any
applicable limitation on investment contained in the New York Insurance Law.
At December 31, 1999, 1998 and 1997, Equitable's total surplus,
calculated in accordance with the statutory method of accounting, was
approximately $4.02 billion, $3.17 billion and $2.46 billion, respectively. At
December 31, 1999, 1998 and 1997, Equitable's total consolidated capital,
calculated in accordance with the statutory method of accounting and consisting
of surplus and the Asset Valuation Reserve, was approximately $5.57 billion,
$4.72 billion and $3.91 billion, respectively.
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AXA Financial, Inc. (the "Holding Company"), a Delaware corporation,
owns all of Equitable's outstanding capital stock. Equitable and the Holding
Company are subject to the informational requirements under the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and in accordance
therewith file reports and other information, including financial statements,
with the Securities Exchange Commission under Commission File No. 0-25280 and
1-11166, respectively. Such reports and other information filed by Equitable and
the Holding Company can be inspected and copied at the public reference
facilities maintained by the SEC in Washington, D.C. and at certain of its
Regional Offices, and copies may be obtained from the Public Reference Section
of the SEC, Washington, D.C. 20549, at prescribed rates.
Equitable is a diversified financial service organization serving a
broad spectrum of insurance, investment management and investment banking
customers. It has been in business since 1859. In 1992, it converted from a
mutual life insurance company into a stock life insurance company through a
process called "demutualization."
ITEM 2. PROPERTIES
As described above, the Partnership conducts an on-going analysis of
the Venture's properties as a basis for hold/sell recommendations for the
properties. As a result of the analysis on January 27, 1999, the Venture
completed the sale of Richland Mall for $9.01 million. On July 23, 1999 the
Venture completed the sale of the 300 Delaware Property for $8.75 million, and
on October 28, 1999, the Venture completed the sale of the 16/18 Sentry Park
West Property for $29.05 million. In addition, at December 31, 1999, the
Venture's only remaining Property was classified as held for sale. The
Partnership is continuing its efforts to sell the remaining Property. However,
there is no certainty as to when the Property will be sold.
At December 31, 1999, approximately 56% of the aggregate rentable
square feet of the Venture's Property was leased. Leases covering approximately
3.1%, 2.7% and 2.9% of the Property's rentable square feet are scheduled to
expire in 2000, 2001 and 2002, respectively.
Set forth below is a brief description of the Venture's Property at
December 31, 1999. Reference is made to Notes 3 and 4 of the Notes to
Consolidated Financial Statements in Item 8. FINANCIAL STATEMENTS. The Venture
has fee ownership of the land and improvements relating to the Property.
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<TABLE>
<CAPTION>
Name, Location and Approximate Date of Year of
Type of Property Size Acquisition Completion
- -------------------------- ----------- ----------- ----------
<S> <C> <C> <C>
Northland Center 558,279(1) 7/22/94 1954
Southfield, MI sq. ft.
regional mall
</TABLE>
- ----------------------
(1) Excludes square feet of buildings owned by certain anchor stores and storage
space.
Annual Aggregate Lease Payments to be Received (in dollars)(a)
<TABLE>
<CAPTION>
Name of Property 2000 2001 2002 2003 2004 Thereafter Total
- ---------------- ---- ---- ---- ---- ---- ---------- -----
<S> <C> <C> <C> <C> <C> <C> <C>
Northland Center $3,678,152 $3,386,857 $2,947,740 $2,355,069 $2,129,480 $5,368,201 $19,865,499
---------- ---------- ---------- ---------- ---------- ---------- -----------
$3,678,152 $3,386,857 $2,947,740 $2,355,069 $2,129,480 $5,368,201 $19,865,499
========== ========== ========== ========== ========== ========== ===========
</TABLE>
(a) Lease payments to be received under noncancelable operating leases in
effect as of December 31, 1999.
Range of Lease Expiration
<TABLE>
<CAPTION>
Name of Property Years
------------------------- ---------
<S> <C>
Northland Center 2000-2010
</TABLE>
Major Tenants
The following list sets forth major tenants for the Property together
with percentage of space used by such tenants as of December 31, 1999:
<TABLE>
<CAPTION>
Property Major Tenants Percentage of Leasable Space
-------- ------------- ----------------------------
<S> <C> <C>
Northland Center Hudson's Department Store 34.1% (1)
J.C. Penney 18.9% (1)
Target 7.8% (1)
</TABLE>
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(1) Hudson's Department Store, J.C. Penney, and Target independently
constructed and operate their stores at Northland Center and each
contributes common area maintenance payments for operating expenses and
real estate taxes under separate agreements. These stores covering 511,509
square feet, 283,534 square feet and 117,000 square feet, respectively, are
not included in the gross leasable area of the mall. In addition, J.C.
Penney pays ground rent. These percentage calculations are based on a total
mall area of 1,498,417 square feet, including unowned anchors and excluding
storage space of approximately 290,000 square feet.
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Description of Property
Northland Center, the Venture's only remaining Property which was
transferred to the Venture and Equitable by a deed in lieu of foreclosure on
July 22, 1994, is a regional enclosed mall located in Southfield, Michigan.
Major tenants include Hudson's Department Store, J.C. Penney and Target. The
Venture does not own the buildings occupied by these three major tenants. As of
December 31, 1999, excluding these three anchor tenant spaces, Northland Center
was approximately 56% leased. Excluding all the anchor space, the inline tenant
space was approximately 75.6% occupied. Leases covering approximately 3.1%, 2.7%
and 2.9% of the space (excluding the anchor stores) are scheduled to expire in
2000, 2001 and 2002, respectively.
In July 1997, Montgomery Ward, a former tenant, declared bankruptcy.
The Partnership continues its efforts to lease 117,500 square feet of the space
vacated by Montgomery Ward. A significant amount of capital may be required to
retenant this vacant space. This anchor vacancy as well as the age of the mall
place Northland Center at a competitive disadvantage.
On February 25, 2000, J.C. Penney announced that they would be closing
45 unprofitable department stores in their chain. On March 9, 2000, J.C. Penney
provided a list of the stores that they intend to close. Included on that list
was the Northland Center store, which is scheduled to be closed on June 1, 2000.
J.C. Penney currently occupies 283,534 square feet at Northland Center and
leases the building from a third party and ground leases the underlying land
from another third party. Their lease expires on May 31, 2005, but their
operating agreement expired in 1997. J.C. Penney is contractually obligated to
pay rent and reimbursements through the end of their lease term. The Venture's
portion of the anticipated amount of this obligation is approximately $750,000
per year. There are a number of tenants in Northland Center who have co-tenancy
clauses in their leases that entitle them to terminate their respective leases
or convert to percentage rent in the event that one or more anchor tenants
vacate and/or the space remains vacant for a specified period of time. The
anticipated closure of J.C. Penney on June 1, 2000 may trigger such clauses in
the future and negatively impact the performance of the Property.
In 1999, the Venture spent $676,000 in capital cost for HVAC/Central
Plant, $443,000 on tenant improvements and leasing commissions, and
approximately $47,000 on asbestos removal. In 2000, the Venture anticipates
spending $36,000 on asbestos removal throughout Northland Center, $32,000 to
replace 1,000 feet of failed underground electrical cable, and approximately
$16,000 on HVAC/Central Plant.
In 1999, as a result of the analysis that was performed by the
Partnership as a basis for hold/sell recommendations for the Venture's
properties, the Property was classified as held for sale. The Partnership is
continuing its efforts to sell the Property. However, there is no certainty as
to when the Property will be sold.
-11-
<PAGE> 12
ITEM 3. LEGAL PROCEEDINGS
The Partnership is a defendant in a consolidated action brought in the
Court of Chancery of the State of Delaware entitled IN RE: ML/EQ Real Estate
Partnership Litigation. The consolidated action results from two related cases.
Scher v. ML/EQ Real Estate Portfolio, L.P., et al., was served on the
Partnership on July 14, 1997. On September 8, 1997, the Partnership was named as
a defendant in Folette v. ML/EQ Real Estate Portfolio, L.P., et al., a
substantially similar complaint, also brought in the Court of Chancery of the
State of Delaware. The cases were consolidated pursuant to a stipulation between
the parties by order of the court on October 3, 1997. In addition to the
Partnership, the complaint names as defendants the Managing General Partner,
Equitable, Equitable Real Estate, EREIM L.P. Corp. and EREIM LP Associates.
The Plaintiffs purport to sue on behalf of a class of all limited
partners of the Partnership who purportedly have been or will be adversely
affected by the conduct of the defendants. The complaints filed in 1997 alleged
that the defendants have caused the Venture to accumulate excessive cash rather
than distribute it to the limited partners, and that defendants' motive in so
doing was (i) to manipulate the Partnership's cash flow so as to limit certain
defendants' exposure under the guarantee agreement and (ii) to secure for
certain defendants additional fees. The complaint also alleges that defendants
have utilized the Venture to provide liquidity for illiquid assets and to
acquire and continue to hold under-performing properties. The complaint purports
to state claims for breach of fiduciary duties, breach of contract, and aiding
and abetting breach of fiduciary duties. The complaint requests, among other
things, money damages in an unspecified amount and orders that defendants
distribute to the purported class the cash which defendants have allegedly
wrongfully failed to distribute and disgorge all earnings, profits, interests
and other benefits which they have realized on account of their allegedly
wrongful conduct. The Partnership intends to defend vigorously against these
claims. In August, 1999, Plaintiffs filed an amended complaint alleging that, in
addition to the allegations made previously, certain distributions from the
Partnership were improperly characterized as a sale or financing proceeds rather
than distributable cash. Defendants answered the complaint, denying any
wrongdoing and filed a motion to dismiss the amended complaint on statute of
limitations grounds. The court granted in part and denied in part defendants'
motion to dismiss the amended complaint. Plaintiff's claim that defendants
failed to distribute cash and part of plaintiff's mischaracterization claim
remain in this case. Plaintiff has filed a motion for reconsideration. Although
the outcome of any litigation cannot be predicted with certainty, the
Partnership's management believes that the ultimate resolution of the litigation
will not have a material adverse effect on the financial condition of the
Partnership. The Partnership's management cannot make an estimate of loss, if
any, or predict whether or not such litigation will have a material adverse
effect on the Partnership's results of operations in any particular period.
-12-
<PAGE> 13
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY-HOLDERS
No matter was submitted during the fourth quarter of the fiscal year to
a vote of BAC Holders.
-13-
<PAGE> 14
PART II.
ITEM 5. MARKET FOR REGISTRANT'S COMMON EQUITY AND RELATED
STOCKHOLDER MATTERS
No public trading market for BACs or Interests exists nor is it
expected that one will develop. Accordingly, accurate information as to the
market value of a BAC at any given date is not available. BACs are transferable
as provided in Article Seven of the Partnership Agreement. Subject to certain
restrictions, the General Partners are authorized to impose restrictions on the
transfer of BACs or Interests (or take such other action as they deem necessary
or appropriate) so that the Partnership is not treated as a "publicly-traded
partnership" as defined in Section 7704(b) of the Internal Revenue Code of 1986
(or any similar provision of succeeding law) which could result in adverse tax
consequences. See "AMENDMENTS TO PARTNERSHIP AGREEMENT--TRANSFER OF INTERESTS"
in the March 3 Supplement.
The number of BAC Holders at March 6, 2000 was 10,374.
The Partnership is a limited partnership and, accordingly, does not pay
dividends. It does, however, make distributions of cash to its BAC Holders and
General Partners. BAC Holders are entitled to receive cash distributions,
allocations of taxable income and tax loss and guaranty proceeds as provided in
Article Four of the Partnership Agreement. For information regarding the
Guaranty Agreement, see Item 1. BUSINESS. Since inception, the Partnership has
made the following distributions:
<TABLE>
<CAPTION>
Period Ended Date Paid Distribution per BAC
- ------------ --------- --------------------
<S> <C> <C>
December 31, 1990 February 28, 1991 $0.25
June 30, 1991 August 31, 1991 $0.50
December 31, 1991 February 28, 1992 $0.50
June 30, 1992 August 31, 1992 $0.662(1)
December 31, 1992 February 28, 1993 $0.40
June 30, 1993 --- $0.00
December 31, 1993 February 28, 1994 $0.10(2)
June 30, 1994 August 31, 1994 $0.10(2)
December 31, 1994 February 28, 1995 $0.15(2)
June 30, 1995 August 31, 1995 $0.15(2)
December 31, 1995 February 29, 1996 $0.10(2)
June 30, 1996 August 29, 1996 $0.10(2)
December 31, 1996 February 28, 1997 $0.15(2)
June 30, 1997 August 29, 1997 $2.70(3)
November 30, 1997 December 23, 1997 $3.26(4)
December 31, 1997 February 27, 1998 $2.75(5)
June 30, 1998 August 31, 1998 $0.25
November 30, 1998 December 21, 1998 $4.82(6)
December 31, 1998 February 26, 1999 $0.45(7)
</TABLE>
<PAGE> 15
<TABLE>
<CAPTION>
Period Ended Date Paid Distribution per BAC
- ------------ --------- --------------------
<S> <C> <C>
January 31, 1999 February 26, 1999 $1.61(8)
February 26, 1999 March 12, 1999 $1.11(9)
July 31, 1999 August 16, 1999 $1.55(10)
October 31, 1999 November 17, 1999 $5.28(11)
</TABLE>
(1) The distribution made on August 31, 1992 to holders of record on June
30, 1992 includes a $0.162 distribution of sale or financing proceeds
associated with the termination of the lease with Saab-Scania of
America, Inc. ("Saab") at 1850 Westford Drive.
(2) All of the distributions made from 1994 through February 28, 1997
constitute distributions of sale or financing proceeds derived from a
portion of the proceeds from the pay-off of a mortgage loan to the
Second Merritt Seven Joint Venture on November 22, 1993.
(3) The August 29, 1997 distribution represents a distribution of
distributable cash from operations. The Partnership made a decision to
distribute a major portion of the monies previously held following its
decision to sell one of its properties, Brookdale Center.
(4) The December 23, 1997 distribution constitutes distributions of sale or
financing proceeds derived from the sale of Brookdale Center.
(5) The February 27, 1998 distribution constitutes distributions of sale or
financing proceeds derived from the sale of the Chicago Industrial
Properties during 1997, remaining proceeds from both the sale of
Brookdale Center and the pay-off of the mortgage loan to the Second
Merritt Seven Joint Venture and early lease termination payments.
(6) The December 21, 1998 distribution constitutes distributions of sale or
financing proceeds derived from the sale of the properties located at
1200 Whipple Road and 1345 Doolittle Drive.
(7) The distribution made on February 26, 1999 to holders of record on
December 18, 1998 represents sale or financing proceeds from the sale
of 1850 Westfork Drive Property.
(8) The distribution made on February 26, 1999 to holders of record on
January 27, 1999 represents sale or financing proceeds from the sale
of Richland Mall.
(9) The distribution made on March 12, 1999 to holders of record on
February 1, 1999 constitutes distributions of the proceeds from the
payoff of the Jericho Village loan.
(10) The distribution made on August 16, 1999 to holders of record on
July 23, 1999 represents sale or financing proceeds from the sale
of the 300 Delaware Property.
(11) The distribution made on November 17, 1999 to holders of record on
October 28, 1999 represents sale or financing proceeds from the sale
of the 16/18 Sentry Park West Property.
See Item 7. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND
RESULTS OF OPERATIONS for further information
regarding cash distributions.
-15-
<PAGE> 16
ITEM 6. SELECTED FINANCIAL DATA
The following sets forth the selected financial data for the
Partnership on a consolidated basis for the years ended December 31, 1995, 1996,
1997, 1998 and 1999:
<TABLE>
<CAPTION>
1999 1998 1997 1996 1995
---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C>
Total revenue $14,999,504 $20,602,189 $25,206,185 $24,982,922 $24,374,185
Net income (loss) ($9,571,754)(1) $ 3,266,840 $8,112,151 $2,225,866 $4,760,605
Net income (loss) ($1.68) $0.57 $1.42 $0.39 $0.83
per BAC
Cash distributions
paid per BAC $10.00 $7.82 $6.11 $0.20 $0.30
Total assets $38,369,475 $105,777,298 $145,738,182 $171,967,228 $171,924,760
</TABLE>
_____________
(1) Includes $18,905,658 loss to adjust the carrying value of Northland Center
to its lower of cost or estimated net realizable value.
The above selected financial data for the years 1995 through 1999
should be read in conjunction with the financial statements and the related
notes appearing elsewhere in this annual report.
ITEM 7. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL
CONDITION AND RESULTS OF OPERATIONS
Liquidity and Capital Resources
At December 31, 1999, the Partnership had cash and cash equivalents of
approximately $339,000. Such cash and cash equivalents are available for
distribution to the extent not utilized for general working capital requirements
and for capital needs at the Venture's Property. In addition, to the extent that
cash distributions from the Partnership's interest in the Venture are
insufficient, the payment or reimbursement of fees and expenses to the General
Partners and their affiliates will be paid out of such cash and cash
equivalents.
The Partnership's policy is to maintain adequate cash reserves (taking
into consideration reserves of the Venture) to enable it to meet short and
long-term requirements. The Partnership's working capital reserves may be
increased or decreased, from time to time, depending on the Managing General
Partner's determination as to their adequacy.
The Partnership owns an 80% interest in the Venture. At December 31,
1999, the Venture owned an undivided interest in Northland Center as a tenant in
common with Equitable. Northland Center (originally a property that secured a
zero coupon mortgage note of the Venture), was transferred to the Venture during
1994 in a deed in lieu of foreclosure transaction. The estimated fair market
value of the Venture's undivided interest in the Northland Center Zero
-16-
<PAGE> 17
Coupon Mortgage Note Receivable immediately preceding the transfer was
approximately $32.2 million. The carrying value of Northland Center was adjusted
to the lower of cost or estimated net realizable value, resulting in a loss of
approximately $18.9 million in 1999.
At December 31, 1999, the Venture also had approximately $11.5 million
in cash and cash equivalents. The Venture retained this amount primarily to fund
potential capital expenditures that might have been required to retenant or
reconfigure the Montgomery Ward and J.C. Penney buildings. J.C. Penney had
expressed an interest in relocating to the smaller vacant Montgomery Ward space
and another national anchor tenant had expressed interest in occupying a
significant portion of the larger J.C. Penney space. The proposals related to
this retenanting scenario involved a significant amount of capital expenditure
to be incurred by the Venture. In March 2000, J.C. Penney announced that they
would be closing their Northland Center store on June 1, 2000. At this time, it
also appears to be highly unlikely that the other National anchor tenant with
which the Venture was negotiating will agree to open a store in Northland
Center. No other potential anchor tenant candidates have been identified. In
light of this turn of events, the Venture has reevaluated its operating and
working capital requirements and will retain approximately $3.0 million to cover
potential operating and working capital expenses. The Partnership will
distribute approximately $8.5 million on May 1, 2000 to BAC Holders of record
as of March 1, 2000. The Partnership will continue to make periodic
determinations of the advisability of distributing operating cash flow. For
1999, 1998 and 1997, the Partnership received distributions from the Venture
totaling approximately $54.2 million, $43.1 million and $34.5 million,
respectively.
The Venture's remaining Property and the properties sold during 1999
were acquired without mortgage indebtedness, and neither the Venture nor the
Partnership has incurred any borrowings. In aggregate, the Venture's Property is
currently producing operating cash flow to the Venture which, net of expenses of
the Venture and the establishment or increase of reserves, is distributable 80%
to the Partnership and 20% to EREIM LP Associates as provided in the Joint
Venture Agreement.
The Partnership conducts an on-going analysis of the Venture's
properties as a basis for hold/sell recommendations for the properties. As a
result of the analysis, on January 27, 1999 the Venture completed the sale of
the Richland Mall property for $9.01 million, on July 23, 1999, the Venture
completed the sale of the 300 Delaware property for $8.75 million and on October
28, 1999, the Venture completed the sale of the 16/18 Sentry Park West Property
for $29.05 million. In addition, at December 31, 1999, the Venture's only
remaining property was classified as held for sale. While the Partnership
Agreement provides that the term of the Partnership may extend until December
31, 2002, the Partnership's present intention is to sell the remaining Property
in advance of the foregoing date.
Cash provided by operating activities decreased approximately $3.6
million, or 40.9%, from $8.8 million in 1998 to $5.2 million in 1999. This
decrease is due to (i) a decrease of approximately $5.7 million in tenant
rentals received, (ii) a decrease of approximately $454,000 in interest
received, offset by a decrease of approximately $1.9 million in cash paid for
operating activities and a decrease of approximately $672,000 in cash
distributions to minority interest. The decrease in tenant rentals and cash paid
for operating activities is due primarily to the sales of 1200 Whipple and 1345
Doolittle in late 1998 and the sales of Richland Mall, 300 Delaware and 16/18
Sentry Park West in 1999. The decrease in interest received is due primarily to
the payoff of the Jericho Village mortgage loan receivable on February 1, 1999.
-17-
<PAGE> 18
Cash provided by operating activities increased approximately $1.3
million, or 17.6%, from $7.5 million in 1997 to $8.8 million in 1998. This
increase is due to (i) a decrease of approximately $3.2 million in cash paid for
operating activities and (ii) a decrease of approximately $3.1 million in cash
distributions to minority interest, offset by a decrease of approximately $4.3
million in tenant rentals received and a decrease of approximately $747,000 in
interest received. The decrease in cash paid for operating activities and tenant
rentals received is primarily due to the sale of Brookdale Center and the
Chicago Industrial properties in late 1997. The decrease in interest received is
due to lower cash balances held by the Venture during 1998 as compared to 1997.
Distributable Cash from operations is distributed in accordance with
the terms of the Partnership Agreement, which provides that such amounts will be
distributed 95% to the BAC Holders and Limited Partners and 5% to the General
Partners with the BAC Holders and Limited Partners entitled to a non-cumulative
preferred 6% simple return on their Adjusted Capital Contribution during each
period. Since inception, the Partnership has made the following distributions:
<TABLE>
<CAPTION>
Period Ended Date Paid Distribution per BAC
- ------------ --------- --------------------
<S> <C> <C>
December 31, 1990 February 28, 1991 $0.25
June 30, 1991 August 31, 1991 $0.50
December 31, 1991 February 28, 1992 $0.50
June 30, 1992 August 31, 1992 $0.662(1)
December 31, 1992 February 28, 1993 $0.40
June 30, 1993 -- $0.00
December 31, 1993 February 28, 1994 $0.10(2)
June 30, 1994 August 31, 1994 $0.10(2)
December 31, 1994 February 28, 1995 $0.15(2)
June 30, 1995 August 31, 1995 $0.15(2)
December 31, 1995 February 29, 1996 $0.10(2)
June 30, 1996 August 29, 1996 $0.10(2)
December 31, 1996 February 28, 1997 $0.15(2)
June 30, 1997 August 29, 1997 $2.70(3)
November 30, 1997 December 23, 1997 $3.26(4)
December 31, 1997 February 27, 1998 $2.75(5)
June 30, 1998 August 31, 1998 $0.25
November 30, 1998 December 21, 1998 $4.82(6)
December 31, 1998 February 26, 1999 $0.45(7)
January 31, 1999 February 26, 1999 $1.61(8)
February 26, 1999 March 12, 1999 $1.11(9)
July 31, 1999 August 16, 1999 $1.55(10)
October 31, 1999 November 17, 1999 $5.28(11)
</TABLE>
(1) The distribution made on August 31, 1992 to holders of record on June
30, 1992 includes a $0.162 distribution of sale or financing proceeds
associated with the termination of the lease with Saab-Scania of
America, Inc. ("Saab") at 1850 Westford Drive.
-18-
<PAGE> 19
(2) All of the distributions made from 1994 through February 28, 1997
constitute distributions of sale or financing proceeds derived from a
portion of the proceeds from the pay-off of a mortgage loan to the
Second Merritt Seven Joint Venture on November 22, 1993.
(3) The August 29, 1997 distribution represents a distribution of
distributable cash from operations. The Partnership made a decision to
distribute a major portion of the monies previously held following its
decision to sell one of its properties, Brookdale Center.
(4) The December 23, 1997 distribution constitutes distributions of sale
or financing proceeds derived from the sale of Brookdale Center.
(5) The February 27, 1998 distribution constitutes distributions of sale or
financing proceeds derived from the sale of the Chicago Industrial
Properties during 1997, remaining proceeds from both the sale of
Brookdale Center and the pay-off of the mortgage loan to the Second
Merritt Seven Joint Venture and early lease termination payments.
(6) The December 21, 1998 distribution constitutes distributions of sale or
financing proceeds derived from the sale of the properties located at
1200 Whipple Road and 1345 Doolittle Drive.
(7) The distribution made on February 26, 1999 to holders of record on
December 18, 1998 represents sale or financing proceeds from the
sale of 1850 Westfork Drive Property.
(8) The distribution made on February 26, 1999 to holders of record on
January 27, 1999 represents sale or financing proceeds from the
sale of Richland Mall.
(9) The distribution made on March 12, 1999 to holders of record on
February 1, 1999 constitutes distributions of the proceeds from the
payoff of the Jericho Village loan.
(10) The distribution made on August 16, 1999 to holders of record on
July 23, 1999 represents sale or financing proceeds from
the sale of the 300 Delaware Property.
(11) The distribution made on November 17, 1999 to holders of record on
October 28, 1999 represents sale or financing proceeds from the
sale of the 16/18 Sentry Park West Property.
During 1997, 1998 and 1999, the Venture received approximately
$133,000, $13,000 and $249,000, respectively, for early lease termination
payments. These early lease termination payments were classified as sale or
financing proceeds and were distributed in 1998 and 1999. See Item 5. MARKET FOR
REGISTRANT'S COMMON EQUITY AND RELATED STOCKHOLDER MATTERS. The amount and
timing of distributions from sale or financing proceeds depend upon the timing
of disposition of properties as well as the need to allocate such funds to
increase reserves.
The Partnership is intended to be self-liquidating in nature, meaning
that proceeds from the sale of properties or principal repayments of loans will
not be reinvested but instead will be distributed to BAC Holders and partners,
subject to certain limitations. Under the terms of the Guaranty Agreement which
has been assigned to the Partnership, following the earlier of the sale or other
disposition of the remaining Property or the liquidation of the Partnership,
EREIM LP Associates has guaranteed to pay an amount which, when added to all
distributions from the Partnership to the BAC Holders, will enable the
Partnership to provide the BAC Holders with a minimum return equal to their
original capital contributions plus a simple annual return equal to 9.75% simple
interest per annum multiplied by their adjusted capital contributions calculated
from the investor closing at which an investor acquired his BACs, subject to
certain limitations.
-19-
<PAGE> 20
Capital contributions by the BAC Holders totaled $108,484,500. As of
December 31, 1999, the cumulative 9.75% simple annual return was $111,468,412.
As of December 31, 1999, cumulative distributions by the Partnership to the BAC
Holders totaled $146,139,456, or $26.94 per BAC, of which $27,663,548 is
attributable to income from operations and $118,475,908 is attributable to sales
of Venture assets, principal payments on mortgage loans and other capital
events. Management does not currently believe that future cash distributions to
the limited partners from liquidation of Venture assets will be sufficient to
provide the specified Minimum Return. Accordingly, the shortfall will be funded
by the guarantor, up to the above described maximum.
Financial Condition
The Partnership's financial statements include the consolidated
statements of the Partnership and the Venture, through which the Partnership
conducts its business of investment in real property. Although the Partnership
was formed in 1986, it did not commence operations until March 1988, following
receipt of the first proceeds of its offering of BACs. Thereafter, utilizing the
net proceeds of the Offering, the Partnership (through the Venture) began its
acquisition of real estate investments. The Partnership substantially completed
its acquisition phase in 1989.
Total real estate investments decreased approximately $66 million or
75.1%, from $87.8 million in 1998 to $21.8 million in 1999. This decrease is due
to (i) the sales of Richland Mall, 300 Delaware and 16/18 Sentry Park West
during 1999 with a combined book value of $41.9 million, (ii) valuation losses
of $18.9 million which were recorded on Northland Mall during 1999, and (iii)
the payoff of the Jericho Village mortgage loan receivable during 1999 of $6
million.
Total real estate investments decreased approximately $27.5 million, or
23.8%, from $115.3 million in 1997 to $87.8 million in 1998. This decrease is
due to (i) the sale of 1200 Whipple Road, 1345 Doolittle Drive and 1850 Westfork
properties in late 1998 with a combined net book value of $19.8 million and (ii)
valuation losses of $9.6 million which were recorded on the Richland Mall and
300 Delaware properties during 1998.
Other assets did not change significantly from 1998 to 1999.
Other assets decreased approximately $12.5 million, or 40.9%, from
$30.5 million in 1997 to $18.0 million in 1998 due primarily to a decrease in
cash and cash equivalents. Cash and cash equivalents decreased approximately
$9.3 million as a result of the Partnership making a cash distribution of $14.9
million in February 1998, partially offset by approximately $2.5 million in net
proceeds received in December, 1998 from the sale of the 1850 Westfork property.
Total liabilities decreased approximately $3.9 million, or 66.6%, from
$5.8 million in 1998 to $1.9 million in 1999. The decrease is due primarily to
$2.4 million in distributions declared as of December 31, 1998 compared to no
distributions declared as of December 31, 1999. Additionally, capital
expenditures of approximately $789,000 that were accrued as of December 31, 1998
were paid during 1999, offset by the accrual of approximately $198,000 of
-20-
<PAGE> 21
capital expenditures at December 31, 1999.
Total liabilities decreased approximately $13.8 million, or 70.3%, from
$19.6 million in 1997 to $5.8 million in 1998. The decrease is due primarily due
to $14.9 million in distributions declared in 1997 compared to $2.4 million in
distributions declared in 1998.
Results of Operations
Rental income decreased approximately $5.3 million, or 26.4%, from $20
million in 1998 to $14.7 million in 1999. The decrease is due primarily to the
sales of 1200 Whipple and 1345 Doolittle in late 1998 and the sales of Richland
Mall, 300 Delaware, and 16/18 Sentry Park West in 1999, resulting in a decrease
in rental income of approximately $4.7 million. Additionally, rental income
decreased at Northland Center by approximately $430,000, due primarily to
adjustments to prior year common area maintenance income resulting from the
resolution of a tenant initiated common area maintenance audit, as well as
revision of various expense recovery estimates. Rental income decreased
approximately $4.5 million, or 18.3 %, from $24.5 million in 1997 to $20 million
in 1998. The decrease is due primarily to the sale of Brookdale Center and the
Chicago Industrial properties during late 1997. Rental income for Brookdale
Center and the Chicago industrial properties for 1997 was approximately $5.9
million, offset by an increase in rental income at 300 Delaware, Richland Mall
and Northland Mall of approximately $700,000, $300,000 and $500,000,
respectively.
Lease termination rental income increased approximately $236,000, or
1,892%, from $13,000 in 1998 to $249,000 in 1999. The increase is due to
approximately $129,000 of lease termination income recognized at Northland Mall
and $120,000 of lease termination income recognized at 16/18 Sentry Park West
during 1999, compared to approximately $13,000 of lease termination income
recognized during 1998 at 300 Delaware.
Lease termination rental income decreased approximately $120,000, or
90.5%, from $133,000 in 1997 to $13,000 in 1998. The decrease is due to
approximately $13,000 of lease termination income recognized during 1998 at 300
Delaware compared to approximately $133,000 of lease termination income
recognized during 1997 at Richland Mall.
Interest on loans receivable decreased approximately $564,000, or 92%,
from $615,000 in 1998 to $51,000 in 1999. This decrease is due to the payoff of
the Jericho Village mortgage loan on February 1, 1999.
Interest on loans receivable did not change from 1997 to 1998.
Real estate operating expenses decreased approximately $1.1 million ,
or 14.2%, from $8.1 million in 1998 to $7 million in 1999. This decrease is due
primarily to the sales of 1200 Whipple and 1345 Doolittle in late 1998, and the
sales of Richland Mall, 300 Delaware and 16/18 Sentry Park West in 1999,
resulting in a decrease in real estate operating expenses of approximately $1.2
million.
Real estate operating expenses decreased approximately $1.5 million, or
15.9% from $9.7
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<PAGE> 22
million in 1997 to $8.1 million in 1998. This decrease is due primarily
to the sale of Brookdale Center in late 1997, resulting in a decrease in real
estate operating expenses of approximately $1.6 million.
Depreciation and amortization expense decreased approximately $2.1
million, or 72.9%, from $2.9 million in 1998 to $789,000 in 1999. This decrease
is due to the reclassification of Northland Mall to held for sale during 1999,
on which the recognition of depreciation expense was suspended.
Depreciation and amortization expense decreased approximately $1.4
million, or 32.1%, from $4.3 million in 1997 to $2.9 million in 1998.
Approximately $1 million of this decrease is due to the reclassification of
properties to held for sale during 1998, on which the recognition of
depreciation expense was suspended, and approximately $393,000 of this decrease
is due to the sale of Brookdale Center and the Chicago Industrial properties
during late 1997.
Loss on write-down of real estate assets increased approximately $10.8
million, or 105%, from $10.2 million in 1998 to $20 million in 1999. The
increase is due to the writedowns of $20 million recorded for Northland Center
and 300 Delaware during 1999 compared to writedowns of $10.2 million recorded
for Richland Mall, 300 Delaware, and 1850 Westfork in 1998.
Loss on write-down of real estate assets increased approximately $10.2
million, or 100%, from a zero balance in 1997 to $10.2 million in 1998. The
increase is due to writedowns of $10.2 million recorded for Richland Mall, 300
Delaware, and 1850 Westfork in 1998 compared to no writedowns in 1997.
Asset management fees decreased approximately $250,000, or 40.8%, from
$612,000 in 1998 to $362,000 in 1999. The decrease is due primarily to the sales
of Richland Mall, 300 Delaware, and 16/18 Sentry Park West in 1999 as well as
the sales of 1200 Whipple, 1345 Doolittle, and 1850 Westfork properties in late
1998.
Asset management fees decreased approximately $135,000, or 18.1%, from
$747,000 in 1997 to $612,000 in 1998. The decrease is due primarily to the sale
of Brookdale Center in late 1997.
General and administrative expenses decreased approximately $385,000,
or 48.2%, from $797,000 in 1998 to $412,000 in 1999. The decrease is due
primarily to a $241,000 decrease in guaranty fees and partnership administration
fees incurred in 1999 due to a reduction in Adjusted Capital Contributions. In
addition, the remaining difference of $144,000 is due primarily to decreased
legal fees incurred by the Partnership in 1999.
General and administrative expenses increased approximately $72,000, or
9.9%, from $725,000 in 1997 to $797,000 in 1998. The increase is due primarily
to increased legal fees during 1998 offset by a $150,000 reduction in guaranty
fees and partnership administration fees incurred in 1998 due to a reduction in
Adjusted Capital Contributions.
ITEM 7A. QUANTITATIVE AND QUALITATIVE DISCLOSURES
ABOUT MARKET RISK
Market risk is the exposure to loss resulting from changes in interest
rates, foreign currency exchange rates, commodity prices, and equity prices. As
of December 31, 1999, the Partnership had no material exposure to market risk.
Year 2000
As of March 30, 2000, the Partnership and the Venture have not
experienced any material disruptions of their internal computer systems or
software applications, and have not experienced any problems with the computer
systems or software applications of their third party vendors, suppliers or
service providers. The Partnership and the Venture will continue to monitor
these third parties to determine the impact, if any, on the business of the
Partnership and the actions the Partnership must take, if any, in the event of
non-compliance by any of these third parties. Based upon the Partnership's
assessment of compliance by third parties, there appears to be no material
business risk posed by any such noncompliance.
ITEM 8. FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA
The following financial statements are included in Item 14 of this
annual report:
Independent Auditors' Report.
Consolidated Balance Sheets, December 31, 1999 and 1998.
Consolidated Statements of Operations for the years ended
December 31, 1999, 1998 and 1997.
Consolidated Statements of Partners' Capital for the years
ended December 31, 1999, 1998 and 1997.
-22-
<PAGE> 23
Consolidated Statements of Cash Flows for the years ended
December 31, 1999, 1998 and 1997.
Notes to Consolidated Financial Statements.
ITEM 9. CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING AND
FINANCIAL DISCLOSURE
Not applicable.
-23-
<PAGE> 24
PART III.
ITEM 10. DIRECTORS AND EXECUTIVE OFFICERS OF THE REGISTRANT
The Partnership is a limited partnership and has no directors or
officers.
For informational purposes only, certain information regarding the
General Partners and their respective directors and officers is set forth below.
Managing General Partner
The Managing General Partner was a wholly-owned subsidiary of Equitable
Real Estate, which was a wholly owned subsidiary of Equitable. On June 10, 1997,
Equitable sold Equitable Real Estate to a subsidiary of Lend Lease Corporation
Limited. The shares of the Managing General Partner were not included in the
sale and the Managing General Partner continues to be a wholly-owned indirect
subsidiary of Equitable. Lend Lease Corporation Limited merged its existing U.S.
real estate investment advisor, The Yarmouth Group, Inc., into Equitable Real
Estate and changed the name of Equitable Real Estate to ERE Yarmouth., Inc.
("ERE Yarmouth"). On July 13, 1998, Lend Lease Corporation Limited changed the
name of ERE Yarmouth to Lend Lease Real Estate Investments, Inc. ("Lend Lease").
Lend Lease was retained by the Managing General Partner, at the Managing General
Partner's expense, to continue providing the same services with respect to the
Partnership, the Venture, and the properties that Equitable Real Estate has
historically provided to the Managing General Partner. The sale did not affect
the ownership of EREIM LP Associates, the guarantor under the Guaranty
Agreement. The obligations of EREIM LP Associates under the Guaranty Agreement
and of Equitable under the Keep Well Agreement were not affected by the sale.
The names and titles of the directors and officers of the Managing
General Partner as of March 30, 2000 are as follows:
<TABLE>
<CAPTION>
Name Age Office
- ---- --- ------
<S> <C> <C>
Peter D. Noris 45 Director
Anthony C. Pasquale 53 Director
Joseph A. DeLuca 54 President, Chief Executive Officer
and Director
Thomas P. Kennedy 43 Vice President
Linda M. Hart 38 Vice President and Treasurer
Debra L. Keller 42 Vice President and Assistant Treasurer
J. Mark Hillis 36 Vice President
Michael L. Jacobson 46 Vice President
Bruce Polifka 42 Vice President
Thomas A. McKean 38 Secretary
Debbie J. Newmark 33 Vice President and Assistant Secretary
</TABLE>
-24-
<PAGE> 25
The business experience of the directors and executive officers of the
Managing General Partner is set forth below.
Peter D. Noris has been Executive Vice President and Chief Investment
Officer of Equitable, since May 1995. In this position, he manages Equitable's
General Account investment portfolio backing the company's traditional life
insurance and annuity business, and oversees certain accounts managed for third
parties by Equitable's investment subsidiary, Alliance Capital Management. Mr.
Noris joined Equitable in 1995. Prior thereto, he was Vice President and Manager
at Salomon Brothers Inc. from November 1992 to May 1995, where he provided
investment and asset/liability expertise to insurance companies. Before joining
Salomon in 1992, Mr. Noris was Principal of Morgan Stanley & Co., Inc. where he
worked since 1984 in its Insurance Group and its Synthetic Equity Group.
Anthony C. Pasquale has been Senior Vice President of Equitable, since
June 1991. He has held numerous managerial positions within Pension and
Investment Organizations of Equitable since joining the Equitable in 1965. Mr.
Pasquale has been working in the Chief Investment Office for the last eight
years where he brings professional expertise along with experience and knowledge
of each business segment, investment subsidiaries and Equitable's General
Account. He is responsible for all investment financial reporting to the
Investment Committee of Equitable's Board which includes forecasting investment
income, capital gains and losses and assets under management and he is Chairman
of the Investments Under Surveillance Committee.
Mr. DeLuca has been the Director of Real Estate Investments for
Equitable since June 1999, overseeing a portfolio of approximately $7 billion in
real estate projects, equities, mortgages, CMBS, and REIT Securities. Mr.
DeLuca's career in the real estate industry has spanned over 20 years including
Division Executive of the Chase Real Estate Finance Group. He also previously
served as the head of Real Estate Finance for Chemical Banking Corporation both
prior to and subsequent to the merger of Chemical with the Manufacturers Hanover
Corporation.
Thomas P. Kennedy has been Vice President of the Managing General
Partner since August 1999. Mr. Kennedy is a Principal of Lend Lease, where he is
a portfolio manager in charge of Insurance Company Operations. Mr. Kennedy
joined Equitable in 1982 and has held various management positions at Lend Lease
throughout his career.
Linda M. Hart has been Vice President and Treasurer of the Managing
General Partner since September 1999. Ms. Hart is also a Principal of Lend
Lease, where she is Senior Operating Officer for the Insurance Company and Debt
Business Units. Ms. Hart joined Equitable in 1987 as a member of the finance
department. Before she joined Equitable, she was employed by Price Waterhouse as
a senior auditor.
Debra L. Keller has been Vice President and Assistant Treasurer of the
Managing General Partner since September 1999. Ms. Keller is a Vice President of
Lend Lease, responsible for overseeing the accounting and financial reporting of
one of five business units
-25-
<PAGE> 26
containing several equity real estate portfolios. Ms. Keller has been
with Lend Lease since April 1986.
J. Mark Hillis has been Vice President of the Managing General Partner
since 1997. Mr. Hillis is a Vice President of Lend Lease , in the disposition
group, where he is responsible for dispositions of client assets including the
Partnership's assets. Previously he was assistant portfolio manager for several
limited partnerships including the partnership. Mr. Hillis joined in August 1994
as Director of Appraisal, where he was responsible for preparing annual
valuations of properties owned by Equitable. Before he joined , he was employed
by Price Waterhouse in their Real Estate Valuation Group since 1991, where he
was responsible for audit valuation compliance, general real estate appraisal
and due diligence services.
Bruce Polifka has been Vice President of the Managing General Partner
since 1998. Mr. Polifka is a Vice President of Lend Lease, where he is currently
employed in several capacities. He is an assistant portfolio manager, as well as
the chief appraiser responsible for overseeing the valuation of Equitable's
General Account portfolio. Mr. Polifka joined Lend Lease in the Dallas region in
1993 where he performed various functions including asset management, appraisal
and acquisitions. Prior to joining Lend Lease Mr. Polifka had 10 years of
diverse real estate experience including appraisal, leasing and real estate
development.
Michael L. Jacobson has been Vice President of the Managing General
Partner since 1997. Mr. Jacobson has been a Senior Vice President of Lend Lease
since 1989, where he is responsible for overseeing fund and joint venture
investments for certain Japanese accounts and Equitable's general account. Mr.
Jacobson joined Equitable in 1976 in the accounting area and has held various
management positions.
Thomas A. McKean became Secretary of the Managing General Partner in
early 1998. He has been a Vice President and Secretary of Lend Lease since
January 1, 1999 and a member of the legal department at Lend Lease since
January, 1993.
Debbie J. Newmark has been Vice President and Assistant Secretary of
the Managing General Partner since March 1998. Ms. Newmark joined Lend Lease in
January 1998 as a Paralegal and was appointed Assistant Secretary in April,
1998.
Associate General Partner
The Associate General Partner is a limited partnership and has no
directors or officers. The general partner of the Associate General Partner is
MLH Real Estate Inc., a wholly-owned subsidiary of MLH Group Inc., which is a
wholly-owned subsidiary of Merrill Lynch, Hubbard Inc. ("MLH"). MLH is a
wholly-owned subsidiary of Merrill Lynch Group, Inc., which is a wholly-owned
subsidiary of Merrill Lynch.
The names and dates of election of the directors and executive officers
of the general partner of the Associate General Partner as of March 21, 2000 are
as follows:
-26-
<PAGE> 27
<TABLE>
<CAPTION>
Name Age Office
- ---- --- ------
<S> <C> <C>
Allen N. Jones............................58 Chairman, Chief Executive Officer and Director
James V. Caruso...........................48 Executive Vice President and Director
Rosalie Y. Goldberg.......................62 President, Chief Operating Officer and Director
Michael E. Lurie..........................56 Vice President and Director
Steven N. Baumgarten......................44 Vice President and Director
Michael A. Gabriel........................43 Vice President and Treasurer
</TABLE>
The business experience of the directors and executive officers of the
general partner of the Associate General Partner is set forth below.
Allen N. Jones has been Chairman, Chief Executive Officer and Director
of the Associate General Partner since January 1997. Mr. Jones joined Merrill
Lynch in 1973. From June 1992 through February 1994, Mr. Jones was the President
and Chief Executive Officer of Merrill Lynch Insurance Group, Inc., and he
currently serves on its Board of Directors. Since June 1992, Mr. Jones has held
the position of Senior Vice President of Merrill Lynch, Pierce, Fenner & Smith
("MLPF&S") where he has held various senior executive responsibilities.
James V. Caruso has been Executive Vice President and Director of the
Associate General Partner since December, 1998. Mr. Caruso joined Merrill Lynch
in 1975 and is a Director in its Investment Banking Group ("IBK"). Since
September 1992, he has been responsible for managing the IBK Finance Department
and the Controller's area of the Partnership Analysis & Finance Group. Mr.
Caruso also serves as the Chief Financial Officer for certain Merrill Lynch
limited partnerships for which Merrill Lynch affiliates serve as general
partner.
Steven N. Baumgarten has been a Vice President and Director of the
Associate General Partner since December 1998. Mr. Baumgarten first joined
Merrill Lynch in 1986 and is a Vice President in its Private Client Group. Prior
to 1998, Mr. Baumgarten worked in Merrill Lynch's Partnership Management
department where he was involved with the ongoing management of various
project-related limited partnerships for which Merrill Lynch affiliates act as
general partner.
Rosalie Y. Goldberg has been President and Chief Operating Officer
since December 1998, was Vice President since January 1997 and a Director of the
Associate General Partner since February 1997. Ms. Goldberg joined Merrill Lynch
in 1975 and is a First Vice President of its Private Client Group. Since
February 1995, she has served as Senior Director of the Special Investments
Group. Ms. Goldberg is also an officer and Director of ML Private Equity Inc.,
and certain other Merrill Lynch affiliates which serve as general partners or
managers of various Merrill Lynch limited partnerships and other entities.
Michael E. Lurie has been Vice President since January 1997 and a
Director of the Associate General Partner since February 1997. Mr. Lurie joined
Merrill Lynch in 1970 and is a First Vice President of its Corporate Credit
Department and the Director of the Asset Recovery
-27-
<PAGE> 28
Management Group. Prior to his present position, Mr. Lurie has held
several senior positions at Merrill Lynch.
Michael A. Gabriel has been a Vice President and Treasurer of the
Associate General Partner since December 1998. Mr. Gabriel first joined Merrill
Lynch in 1985 and has been a Tax Specialist in Merrill Lynch's Partnership
Analysis and Finance Group at MLPF&S since June 1998 where he also serves as
Treasurer of certain Merrill Lynch limited partnerships for which Merrill Lynch
affiliates act as general partner.
There is no family relationship among any of the above-listed directors
and officers of the Managing General Partner and the general partner of the
Associate General Partner. All of the directors have been elected to serve until
the next annual meeting of the shareholder of the Managing General Partner or
general partner of the Associate General Partner, respectively, or until their
successors are elected and qualify. All of the officers have been elected to
serve until their successors are elected and qualify.
ITEM 11. EXECUTIVE COMPENSATION
The General Partners are entitled to receive a share of cash
distributions and a share of taxable income or tax loss as provided in Article
Four of the Partnership Agreement which is incorporated herein by reference.
The General Partner and their affiliates may be paid certain fees and
commissions and reimbursed for certain out-of-pocket expenses. Information
concerning such fees, commissions and reimbursements is set forth under
"Compensation and Fees" in the Prospectus and Note 8 to notes to Consolidated
Financial Statements in Item 8. FINANCIAL STATEMENTS, which is incorporated
herein by reference.
All of the directors and officers of the Managing General Partner are
employees of Equitable or Lend Lease and are not separately compensated for
services provided to the Managing General Partner or, on behalf of the Managing
General Partner, to the Partnership. All of the directors and officers of the
general partner of the Associate General Partner are employees of Merrill Lynch
or its subsidiaries and are not separately compensated for services provided to
the Associate General Partner or, on behalf of the Associate General Partner, to
the Partnership.
The Partnership Agreement indemnifies the General Partners and the
Initial Limited Partner against liability for losses resulting from errors in
judgment or other action or inaction, whether or not disclosed, if such course
of conduct did not constitute negligence or misconduct (see Section 5.7 of the
Partnership Agreement). As a result of such indemnification provisions, a
purchaser of BACs may have a more limited right of legal action than he would
have if such provision were not included in the Partnership Agreement. In the
opinion of the Securities and Exchange Commission, indemnification for
liabilities arising under the Federal Securities laws is against public policy
and therefore unenforceable. Indemnification of general partners involves a
developing and changing area of the law and since the law relating to the rights
of assignees of
-28-
<PAGE> 29
limited partnership interests, such as BAC Holders, is largely
undeveloped, investors who have questions concerning the duties of the General
Partners should consult their own counsel.
ITEM 12. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND
MANAGEMENT.
The Initial Limited Partner, an affiliate of the Associate General
Partner, is the record owner of substantially all of the Interests in the
Partnership, although it has assigned such Interests to BAC Holders. In its
capacity as record owner of the Interests, the Initial Limited Partner has no
authority to transact business for, or to participate in the activities and
decisions of, the Partnership. As of March 21, 2000, MLPF&S was the record owner
of approximately 66% of the BACs, holding such BACs in a nominee capacity and
having no beneficial interest in the BACs. Otherwise, there is no person known
to the Partnership who owns beneficially or of record more than five percent of
the BACs of the Partnership. Neither of the General Partners owns any BACs of
the Partnership. The directors and officers of the Managing General Partner and
the general partner of the Associate General Partner, as a group, own no BACs.
There are no arrangements known to the Partnership, the operation of
which may, at a subsequent date, result in a change in control of the
Partnership.
ITEM 13. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS
Not applicable.
-29-
<PAGE> 30
PART IV.
ITEM 14. EXHIBITS, FINANCIAL STATEMENT SCHEDULES, AND REPORTS ON
FORM 8-K.
(a) 1. The following financial statements are filed with
this report on the pages indicated:
Page
Independent Auditors' Report............................................... 1
Consolidated Balance Sheets, December 31, 1999 and 1998.................... 2
Consolidated Statements of Operations for the years
ended December 31, 1999, 1998 and 1997.................................. 3
Consolidated Statements of Partners' Capital for the
years ended December 31, 1999, 1998 and 1997............................ 4
Consolidated Statements of Cash Flows for the years
ended December 31, 1999, 1998 and 1997.................................. 5
Notes to Consolidated Financial Statements................................. 7
2. The following audited financial statement schedules are filed
with this report on the pages indicated:
Page
Consolidated Supplemental Schedules:
Real Estate and Accumulated Depreciation as of December 31, 1999 and for the
years ended December 31, 1999, 1998 and 1997 (Schedule III)............. 20
Mortgage Loans on Real Estate as of December 31, 1999 and for
the years ended December 31, 1999, 1998 and 1997 (Schedule IV).......... 21
All schedules except those indicated above have been omitted
as the required information is not applicable or the information is shown in the
financial statements or notes thereto.
-30-
<PAGE> 31
3. Exhibits
See Item 14(c) below.
(b) The Partnership filed a Current Report on Form 8-K on October 28, 1999,
pursuant to which the sale of the Venture's property, 16/18 Sentry Park
West, was reported. In connection with the filing of the preceding
report, the Partnership filed a pro forma consolidation balance sheet
as of September 30, 1999 and a pro forma consolidation statement of
operations for the nine months ended September 30, 1999.
(c) Exhibits.
4. (a) Amended and Restated Agreement of Limited
Partnership dated April 23, 1987. Included as an
Exhibit to the Prospectus (see Exhibit 99(a)).
(b) Amendment to Amended and Restated Agreement of
Limited Partnership dated February 9, 1988
(incorporated by reference to Exhibit 4(b) to the
Partnership's Annual Report on Form 10-K for the
Fiscal Year Ended December 31, 1987 (File No.
33-11064) (the "1987 10-K")).
10. Material Contracts.
(a) Purchase and Sale Agreement between EML Associates
and The Rubenstein Company, L.P. dated April
21, 1999.
(b) Purchase and Sale Agreement between EML Associates
and Income Growth Fund II, Inc. dated August 20,
1999.
(c) Real Estate Investment Advisory Agreement by and
between EREIM Managers Corp. and Equitable Real
Estate Investment Management, Inc. (currently
Lend Lease, Inc.) dated as of June 10, 1997
(incorporated by reference to Exhibit 10(a) to
the 1998 10-K).
(d) Purchase and Sale Agreement by and between The
Equitable Life Assurance Society of the United
States and Talisman Brookdale L.L.C., dated
September 2, 1997 (incorporated by reference to
Exhibit 10(b) to the 1998 10-K).
(e) Purchase and Sale Agreement by and between EML
Associates and SPP Real Estate (O'Hare), Inc., dated
December 31, 1997 (incorporated by reference to
Exhibit 10(c) to the 1997 10-K).
(f) Form of Beneficial Assignee Certificate
(incorporated by reference to Exhibit 10(a) to
Pre-Effective Amendment No. 1 to the Registration
Statement of the Partnership (File No. 33-11064)).
-31-
<PAGE> 32
(g) Agreement Between General Partners (incorporated by
reference to Exhibit 10(c) to the 1987 10-K).
(h) Joint Venture Agreement of EML Associates
(incorporated by reference to Exhibit 10(d) to
the 1987 10-K).
(i) Investment Guaranty Agreement between the Venture and
EREIM LP Associates (incorporated by reference to
Exhibit 10(e) to the 1987 10-K).
(j) Assignment Agreement between Registrant and Venture
(incorporated by reference to Exhibit 10(f) to the
1987 10-K).
(k) Keep Well Agreement between The Equitable Life
Assurance Society of the United States and EREIM
LP Corp. (incorporated by reference to Exhibit
10(g) to the 1987 10-K).
(l) Amended and Restated Agreement of General Partnership
of EREIM LP Associates (incorporated by reference to
Exhibit 10(h) to the 1987 10-K).
(m) Form of Participation Agreement between The
Equitable Life Assurance Society of The United
States and EML Associates dated September 27, 1988
(incorporated by reference to Exhibit No. 2 to
Form 8-K dated September 27, 1988 of ML/EQ Real
Estate Portfolio, L.P. (File No. 33-11064)).
(n) Note and Mortgage and Security Agreement dated
January 31, 1989 relating to loan by EML to The
Wilcon Company (incorporated by reference to
Exhibit No. 4 to Form 8-K dated December 27, 1988
of ML/EQ Real Estate Portfolio, L.P. (File No.
33-11064)).
27. Financial Data Schedule, which is submitted electronically
to the Securities and Exchange Commission for information
only and not filed.
99. Additional Exhibits.
(a) Prospectus dated April 23, 1987, as supplemented by
supplements dated December 29, 1987, March 3, 1988
and March 17, 1988 (incorporated by reference to
Exhibit 28 to the 1987 10-K).
(b) Amendment to Joint Venture Agreement dated as of
January 1, 1997 between ML/EQ Real Estate Portfolio,
L.P. and EREIM LP Associates (incorporated by
reference to Exhibit 99(i) of the Form 10-K of the
Partnership for the year ended December 31, 1996)
-32-
<PAGE> 33
ML/EQ REAL ESTATE PORTFOLIO, L.P.
Consolidated Financial Statements
as of December 31, 1999 and 1998,
and for the Years Ended
December 31, 1999, 1998, and 1997,
Consolidated Supplemental Schedules
as of December 31, 1999 and for the Years
Ended December 31, 1999, 1998, and 1997,
and Independent Auditors' Report
<PAGE> 34
ML/EQ REAL ESTATE PORTFOLIO, L.P.
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
<S> <C>
INDEPENDENT AUDITORS' REPORT ................................................ 1
CONSOLIDATED FINANCIAL STATEMENTS AS OF DECEMBER 31, 1999
AND 1998 AND FOR THE YEARS ENDED DECEMBER 31, 1999, 1998,
AND 1997:
Balance Sheets ............................................................. 2
Statements of Operations ................................................... 3
Statements of Partners' Capital ............................................ 4
Statements of Cash Flows ................................................... 5
Notes to Consolidated Financial Statements ................................. 7
CONSOLIDATED SUPPLEMENTAL SCHEDULES AS OF DECEMBER 31, 1999
AND FOR THE YEARS ENDED DECEMBER 31, 1999, 1998, AND 1997:
Schedule III - Real Estate Held for Investment and Accumulated Depreciation. 20
Schedule IV - Mortgage Loans on Real Estate ................................ 21
</TABLE>
<PAGE> 35
INDEPENDENT AUDITORS' REPORT
ML/EQ Real Estate Portfolio, L.P.:
We have audited the accompanying consolidated balance sheets of ML/EQ
Real Estate Portfolio L.P. (the "Partnership") as of December 31, 1999 and 1998,
and the related consolidated statements of operations, partners' capital, and
cash flows for each of the three years in the period ended December 31, 1999.
These financial statements are the responsibility of the Partnership's
management. Our responsibility is to express an opinion on these financial
statements based on our audits.
We conducted our audits in accordance with auditing standards generally
accepted in the United States of America. Those standards require that we plan
and perform the audit to obtain reasonable assurance about whether the financial
statements are free of material misstatement. An audit includes examining, on a
test basis, evidence supporting the amounts and disclosures in the financial
statements. An audit also includes assessing the accounting principles used and
significant estimates made by management, as well as evaluating the overall
financial statement presentation. We believe that our audits provide a
reasonable basis for our opinion.
In our opinion, such consolidated financial statements present fairly,
in all material respects, the financial position of the Partnership at December
31, 1999 and 1998, and the results of its operations and its cash flows for each
of the three years in the period ended December 31, 1999 in conformity with
accounting principles generally accepted in the United States of America.
Our audits were conducted for the purpose of forming an opinion on the
basic consolidated financial statements taken as whole. The consolidated
supplemental schedules listed in the table of contents are presented for the
purpose of additional analysis and are not a required part of the basic
consolidated financial statements. These schedules are the responsibility of
the Partnership's management. Such schedules have been subjected to the
auditing procedures applied in our audits of the basic consolidated financial
statements and, in our opinion, are fairly stated in all material respects when
considered in relation to the basic consolidated financial statements taken as a
whole.
/s/ DELOITTE & TOUCHE LLP
Atlanta, Georgia
March 24, 2000
<PAGE> 36
ML/EQ REAL ESTATE PORTFOLIO, L.P.
CONSOLIDATED BALANCE SHEETS
DECEMBER 31, 1999 AND 1998
<TABLE>
<CAPTION>
ASSETS 1999 1998
----------- ------------
<S> <C> <C>
REAL ESTATE INVESTMENTS:
Rental properties, held for sale (Note 4).................. $21,814,303 $ 41,915,300
Rental properties, net of accumulated
depreciation (Note 3).................................... 39,873,242
Mortgage loan receivable (Note 6).......................... 6,000,000
----------- ------------
Total real estate investments............................ 21,814,303 87,788,542
OTHER ASSETS:
Cash and cash equivalents.................................. 11,809,525 11,939,314
Accounts receivable and accrued investment
income, net of allowance for doubtful accounts
of $727,534 in 1999 and $598,018 in 1998................. 3,038,359 2,892,290
Deferred rent concessions.................................. 608,330 809,836
Guaranty fee, net of accumulated amortization of
$2,937,964 in 1999 and $2,669,713 in 1998
(Notes 7 and 8).......................................... 804,751 1,073,002
Deferred leasing costs, net of accumulated
amortization of $137,636 in 1998......................... 302,184
Prepaid expenses and other assets.......................... 240,060 875,369
Interest receivable........................................ 50,676 96,112
Due from affiliates........................................ 3,471 649
----------- ------------
Total other assets........................................ 16,555,172 17,988,756
----------- ------------
$38,369,475 $105,777,298
=========== ============
LIABILITIES AND PARTNERS' CAPITAL
LIABILITIES:
Accounts payable and other accrued expenses................. $ 1,092,148 $ 1,758,841
Accrued capital expenditures................................ 198,189 788,395
Distributions declared...................................... 2,440,901
Due to affiliates (Notes 7 and 8)........................... 195,187 480,453
Security deposits and unearned rent......................... 454,055 343,922
---------- ------------
Total liabilities......................................... 1,939,579 5,812,512
MINORITY INTEREST IN THE VENTURE.............................. 29,861,970 32,023,757
COMMITMENTS AND CONTINGENCIES
(Notes 7 and 12)
PARTNERS' CAPITAL
General partners.............................................. 2,234,711 2,713,299
Initial limited partner....................................... 6,088 6,507
Limited partners (5,424,225 BACs issued
and outstanding)............................................ 4,327,127 65,221,223
----------- ------------
Total partners' capital..................................... 6,567,926 67,941,029
----------- ------------
$38,369,475 $105,777,298
=========== ============
See notes to consolidated financial statements
</TABLE>
- 2 -
<PAGE> 37
ML/EQ REAL ESTATE PORTFOLIO, L.P.
CONSOLIDATED STATEMENTS OF OPERATIONS
YEARS ENDED DECEMBER 31, 1999, 1998, AND 1997
<TABLE>
<CAPTION>
1999 1998 1997
<S> <C> <C> <C>
REVENUE:
Rental income (Note 10).......................... $14,699,265 $19,974,688 $24,458,345
Lease termination income (Note 10)............... 248,989 12,501 132,840
Interest on loans receivable (Note 6)............ 51,250 615,000 615,000
----------------------- ------------------- -------------------
Total revenue 14,999,504 20,602,189 25,206,185
OPERATING EXPENSES:
Real estate operating expenses................... 6,970,028 8,125,398 9,664,185
Depreciation and amortization.................... 789,345 2,907,869 4,282,026
Real estate taxes................................ 1,812,913 1,867,477 3,076,092
Property management fees (Note 8)................ 328,644 434,224 554,471
Loss on write-down of real estate assets......... 21,020,338 10,243,677
Asset management fees (Note 8)................... 361,999 611,923 747,302
Amortization of guarantee fee (Note 8)........... 268,251 268,251 268,251
General and administrative, including $122,843 in
1999, $364,034 in 1998, and $513,696 in 1997
to affiliates (Note 8)......................... 412,537 797,052 725,258
----------------------- ------------------- -------------------
Total operating expenses........................ 31,964,055 25,255,871 19,317,585
----------------------- ------------------- -------------------
INCOME (LOSS) FROM OPERATIONS..................... (16,964,551) (4,653,682) 5,888,600
OTHER INCOME:
Gain on sale of real estate (Note 3)............. 4,540,599 8,501,691 3,288,138
Interest and other nonoperating income........... 690,411 605,329 1,369,424
----------------------- ------------------- -------------------
Total other income.............................. 5,231,010 9,107,020 4,657,562
----------------------- ------------------- -------------------
INCOME (LOSS) BEFORE MINORITY INTEREST............ (11,733,541) 4,453,338 10,546,162
MINORITY INTEREST IN NET (INCOME) LOSS OF
CONSOLIDATED VENTURE.............................. 2,161,787 (1,186,498) (2,434,011)
----------------------- ------------------- -------------------
NET INCOME (LOSS)................................. $(9,571,754) $3,266,840 $8,112,151
======================= =================== ===================
ALLOCATION OF NET INCOME (LOSS):
General partners................................. $(478,588) $163,342 $405,608
Initial limited partner.......................... (419) 143 355
Limited partners................................. (9,092,747) 3,103,355 7,706,188
----------------------- ------------------- -------------------
$(9,571,754) $3,266,840 $8,112,151
======================= =================== ===================
NET INCOME (LOSS) PER BENEFICIAL ASSIGNEE
CERTIFICATE....................................... $(1.68) $0.57 $1.42
======================= =================== ===================
WEIGHTED AVERAGE BENEFICIAL ASSIGNEE
CERTIFICATES OUTSTANDING.......................... 5,424,225 5,424,225 5,424,225
======================= =================== ===================
</TABLE>
See notes to consolidated financial statements.
- 3 -
<PAGE> 38
ML/EQ REAL ESTATE PORTFOLIO, L.P.
CONSOLIDATED STATEMENTS OF PARTNERS' CAPITAL
<TABLE>
<CAPTION>
INITIAL
GENERAL LIMITED LIMITED
PARTNERS PARTNER PARTNERS TOTAL
<S> <C> <C> <C> <C>
BALANCE - December 31, 1996............................. $2,144,349 $6,747 $131,598,401 $133,749,497
Net income.............................................. 405,608 355 7,706,188 8,112,151
Cash distributions...................................... (675) (32,328,381) (32,329,056)
Distributions declared.................................. (14,916,619) (14,916,619)
-------------- -------------- -------------- --------------
BALANCE - December 31, 1997............................. 2,549,957 6,427 92,059,589 94,615,973
Net income.............................................. 163,342 143 3,103,355 3,266,840
Cash distributions...................................... (63) (27,500,820) (27,500,883)
Distributions declared.................................. (2,440,901) (2,440,901)
-------------- -------------- -------------- --------------
BALANCE - December 31, 1998............................. 2,713,299 6,507 $ 65,221,223 $ 67,941,029
Net loss................................................ (478,588) (419) (9,092,747) (9,571,754)
Cash distributions...................................... (51,801,349) (51,801,349)
-------------- -------------- -------------- --------------
BALANCE - December 31, 1999............................. $2,234,711 $6,088 $ 4,327,127 $ 6,567,926
============== ============== ============== ==============
</TABLE>
See notes to consolidated financial statements.
- 4 -
<PAGE> 39
ML/EQ REAL ESTATE PORTFOLIO, L.P.
CONSOLIDATED STATEMENTS OF CASH FLOWS
YEARS ENDED DECEMBER 31, 1999, 1998, AND 1997
<TABLE>
<CAPTION>
1999 1998 1997
<S> <C> <C> <C>
OPERATING ACTIVITIES:
Tenant rentals received.......................... $ 14,611,314 $ 20,321,183 $ 24,621,341
Interest received................................ 787,097 1,241,154 1,987,680
-------------- -------------- --------------
Cash received from operations.................. 15,398,411 21,562,337 26,609,021
Cash paid for operating activities............... (10,205,593) (12,101,580) (15,312,228)
Cash distributions to minority interest.......... (671,591) (3,820,000)
-------------- -------------- --------------
Net cash provided by operating activities...... 5,192,818 8,789,166 7,476,793
INVESTING ACTIVITIES:
Net proceeds from sales of real estate properties 45,566,392 28,587,487 25,383,260
Repayment of mortgage loan receivable............ 6,000,000
Purchases and additions to rental properties..... (2,603,006) (3,966,097) (5,157,525)
Expenditures for deferred leasing costs.......... (43,743) (310,643) (613,395)
-------------- -------------- --------------
Net cash provided by investing activities...... 48,919,643 24,310,747 19,612,340
FINANCING ACTIVITIES - Cash distributions to
limited partners................................. (54,242,250) (42,417,502) (33,142,690)
-------------- -------------- --------------
NET DECREASE IN CASH AND CASH EQUIVALENTS......... (129,789) (9,317,589) (6,053,557)
CASH AND CASH EQUIVALENTS:
Beginning of year................................ 11,939,314 21,256,903 27,310,460
-------------- -------------- --------------
End of year...................................... $ 11,809,525 $ 11,939,314 $ 21,256,903
============== ============== ==============
(Continued)
</TABLE>
- 5 -
<PAGE> 40
ML/EQ REAL ESTATE PORTFOLIO, L.P.
CONSOLIDATED STATEMENTS OF CASH FLOWS
YEARS ENDED DECEMBER 31, 1999, 1998, AND 1997
<TABLE>
<CAPTION>
1999 1998 1997
<S> <C> <C> <C>
RECONCILIATION OF NET INCOME (LOSS) TO NET
CASH PROVIDED BY OPERATING ACTIVITIES:
Net income (loss)..................................... $(9,571,754) $ 3,266,840 $ 8,112,151
Adjustments to reconcile net income (loss) to cash
provided by operating activities:
Depreciation and amortization........................ 1,057,596 3,176,120 4,550,277
Minority interest in Venture operations.............. (2,161,787) 1,186,498 2,434,011
Cash distributions to minority interest.............. (671,591) (3,820,000)
Loss on write-down of real estate assets............. 21,020,338 10,243,677
Gain on sale of real estate.......................... (4,540,599) (8,501,691) (3,288,138)
Changes in assets (increase) decrease:
Accounts receivable and accrued investment income.... (146,069) 471,926 28,043
Interest receivable.................................. 45,436 20,825 3,258
Deferred rent concessions............................ (301,004) 201,692 (155,855)
Due from affiliates.................................. (2,822) 9,941 (5,330)
Prepaid expenses and other assets.................... 635,309 (67,773) (123,676)
Changes in liabilities increase (decrease):
Accounts payable and other accrued expenses......... (666,693) (58,594) (437,242)
Due to affiliates................................... (285,266) (149,080) 21,326
Security deposits and unearned rent................. 110,133 (339,624) 157,968
----------- ----------- -----------
Total adjustments.................................. 14,764,572 5,522,326 (635,358)
----------- ----------- -----------
Net cash provided by operating activities.......... $ 5,192,818 $ 8,789,166 $ 7,476,793
=========== =========== ===========
</TABLE>
SUPPLEMENTAL INFORMATION REGARDING NONCASH INVESTING ACTIVITIES:
The Venture accrued $198,187 and $788,395 in capital expenditures that were not
paid before December 31, 1999 and 1998, respectively.
See notes to consolidated financial statements. (Concluded)
- 6 -
<PAGE> 41
ML/EQ REAL ESTATE PORTFOLIO, L.P.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
AS OF DECEMBER 31, 1999 AND 1998, AND FOR THE
YEARS ENDED DECEMBER 31, 1999, 1998, AND 1997
1. ORGANIZATION
ML/EQ Real Estate Portfolio, L.P., a Delaware limited partnership (the
"Partnership"), was formed on December 22, 1986. The Partnership was formed
to invest in existing income-producing real properties, zero coupon or
similar mortgage notes, and fixed-rate mortgage loans through a joint
venture, EML Associates (the "Venture"). The Venture was formed on March
10, 1988 with EREIM LP Associates, an affiliate of The Equitable Life
Assurance Society of the United States ("Equitable"). The Partnership owns
an 80% interest in the Venture.
The Managing General Partner of the Partnership is EREIM Managers
Corp. (the "Managing General Partner"), an affiliate of Equitable, and the
Associate General Partner is MLH Real Estate Associates Limited Partnership
(the "Associate General Partner"), an affiliate of Merrill Lynch, Hubbard
Inc. The initial limited partner is MLH Real Estate Assignor, Inc., an
affiliate of Merrill Lynch, Hubbard Inc.
The Partnership's Amended and Restated Agreement of Limited
Partnership (the "Partnership Agreement") authorized the sale of up to
7,500,000 Beneficial Assignee Certificates ("BACs") at $20 per BAC. The
BACs evidence the economic rights attributable to limited partnership
interests in the Partnership. On March 10, 1988, the Partnership's initial
investor closing occurred, at which time the Partnership received
$92,190,120 representing the proceeds from the sale of 4,609,506 BACs. On
May 3, 1988, the Partnership had its second and final investor closing. The
Partnership received $16,294,380 representing the proceeds from the sale of
an additional 814,719 BACs.
Total capital contributions to the Partnership are summarized as follows:
<TABLE>
<S> <C>
General partners .............................. $ 25,000
Initial limited partner ....................... 5,000
Limited partners .............................. 108,484,500
--------------
Total ......................................... $ 108,514,500
==============
</TABLE>
The Managing General Partner was a wholly owned subsidiary of
Equitable Real Estate Investment Management, Inc. ("ERE"), which was a
wholly owned subsidiary of Equitable. On June 10, 1997, Equitable sold ERE
to a subsidiary of Lend Lease Corporation Limited. The shares of the
Managing General Partner were not included in the sale and the Managing
General Partner continues to be a wholly owned indirect subsidiary of
Equitable. Lend Lease Corporation Limited merged its existing U.S. real
estate investment advisor, The Yarmouth Group, Inc. into ERE and changed
the name of ERE to ERE Yarmouth, Inc. ("ERE Yarmouth"). On July 13, 1998,
Lend Lease Corporation Limited changed the name of ERE Yarmouth to Lend
Lease Real Estate Investments, Inc. ("Lend Lease"). Lend Lease was retained
by the Managing General Partner, at the Managing General Partner's expense,
to continue providing the same services with respect to the Partnership,
the Venture and the
- 7 -
<PAGE> 42
ML/EQ REAL ESTATE PORTFOLIO, L.P.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (Continued)
properties that ERE has historically provided to the Managing General
Partner. The sale did not affect the ownership of EREIM LP Associates, the
guarantor under the Guaranty Agreement, as ERE had no interest therein. The
obligations of EREIM LP Associates under the Guaranty Agreement and of
Equitable under the Keep Well Agreement were not affected by the sale.
2. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
The preparation of financial statements in conformity with generally
accepted accounting principles requires management to make estimates and
assumptions that affect the reported amounts of assets and liabilities and
disclosure of contingent assets and liabilities at the date of the
financial statements and the reported amounts of revenues and expenses
during the reporting period. Actual results could differ from those
estimates.
Principles of Consolidation - The consolidated financial statements
include the accounts of the Partnership and the Venture. EREIM LP
Associates' 20% ownership in the Venture is reflected as a minority
interest in the Partnership's consolidated financial statements. The
Venture's investment in Northland Center and Brookdale Center represent a
tenant in common interest with Equitable. These investments are reflected
using the proportionate consolidation method in accordance with standard
industry practice. All significant intercompany accounts are eliminated in
consolidation.
Allocation of Partnership Income - Partnership net income was
allocated 99% to the limited partners as a group and 1% to the general
partners until 1990 at which time the Partnership paid the final portion of
the acquisition/syndication fees to the general partners. Since 1990,
partnership net income has been allocated 95% to the limited partners as a
group and 5% to the general partners, consistent with the provisions in the
limited partnership agreement for the allocation of distributable cash (see
Note 9).
Rental Properties - At December 31, 1998, rental properties were
stated at cost. Cost was allocated between land and buildings based upon
preacquisition appraisals of each property. Impairment was determined by
calculating the sum of the estimated undiscounted future cash flows
including the projected undiscounted future net proceeds from sale of
property. In the event such sum was less than the depreciated cost of the
property, the property was written down to estimated fair market value.
Rental Properties Held for Sale - Rental properties are classified as held
for sale when management, having authority to approve the action, commits
to a plan to sell rental properties and all of the criteria for classifying
such properties as held for sale in accordance with Statement of Financial
Accounting Standards No. 121, Accounting for the Impairment of Long-Lived
Assets and for Long-Lived Assets to Be Disposed Of, have been met.
Individual real estate properties held for sale, including deferred leasing
costs and deferred rent concessions, are recorded at lower of cost or
estimated fair market value, less estimated costs to sell. Depreciation is
not recorded for properties classified as held for sale.
Depreciation - Depreciation of buildings and building improvements is
provided using the straight-line method over estimated useful lives of five
to forty years. Tenant improvements and leasing commissions are amortized
using the straight-line method over the life of the related lease.
Rental Income - Rental income is recognized on a straight-line basis
over the terms of the leases.
Deferred Rent Concessions - Deferred rent concessions include the
excess of straight-line minimum base rentals over contractual minimum base
rentals.
Mortgage Loan Receivable - The mortgage loan receivable is stated at
cost (see Note 6).
- 8 -
<PAGE> 43
ML/EQ REAL ESTATE PORTFOLIO, L.P.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (Continued)
Offering Costs - Offering costs, including the acquisition/syndication
fee payable to the general partners and other offering and issuance costs
of the BACs totaling $11,037,537, were charged against the limited
partners' capital in accordance with the provisions of the Partnership
Agreement, following the investor closings in 1988.
Guaranty Fees - Guaranty fees are being recognized as expense over the
estimated life of the Partnership through a combination of the amortization
of the nonrecurring portion of the fees incurred during the first three
years of the Partnership and the expense of the recurring portion of the
fees as incurred (see Note 8).
Cash and Cash Equivalents - Cash equivalents include cash, demand
deposits, money market accounts, and highly liquid short-term investments
purchased with original maturities of three months or less.
Income Taxes - No provisions for income taxes have been made since all
income and losses are allocated to the partners for inclusion in their
respective tax returns.
Fair Value of Financial Instruments - Management has reviewed the
various assets and liabilities of the Partnership and has concluded that
the estimated fair market value of the Partnership's financial instruments,
including the mortgage loan receivable, have terms such that the carrying
value approximates the estimated fair market value.
Reclassifications - Certain prior year amounts have been reclassified
to conform with the 1999 presentation.
3. RENTAL PROPERTIES
As of December 31, 1999, the Partnership's total rental properties
consisted of the following:
<TABLE>
<S> <C> <C> <C>
RENTABLE PERCENTAGE
SQUARE FEET LEASED
(UNAUDITED)
RETAIL
Northland Center* Southfield, Michigan 558,279 56%
</TABLE>
* See Note 4, Rental properties held for sale
- 9 -
<PAGE> 44
ML/EQ REAL ESTATE PORTFOLIO, L.P.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS --(Continued)
The costs related to the rental properties held for investment at
December 31, 1998 are summarized below:
<TABLE>
<S> <C>
Land.................................................. $ 7,424,476
Buildings and improvements............................ 38,035,394
---------------
Total................................................. 45,459,870
Accumulated depreciation.............................. (5,586,628)
---------------
Net rental properties................................. $39,873,242
===============
Retail................................................ $45,459,870
Accumulated depreciation.............................. (5,586,628)
---------------
Net rental properties................................. $39,873,242
===============
</TABLE>
During 1999, the Venture consummated the sale of Richland Mall, 300
Delaware and 16/18 Sentry Park West.
<TABLE>
<CAPTION>
GAIN (LOSS)
PROPERTY SALES PRICE COST TO SELL NET PROCEEDS ON SALE
<S> <C> <C> <C> <C>
Richland Mall $ 9,010,000 $ 291,894 $ 8,718,106 $ (71,562)
300 Delaware 8,750,000 322,273 8,427,727 (141,417)
16/18 Sentry Park West 29,050,000 629,441 28,420,559 4,753,578
--------------- --------------- --------------- ---------------
$46,810,000 $1,243,608 $45,566,392 $4,540,599
=============== =============== =============== ===============
</TABLE>
During 1998, the Venture consummated the sale of 1200 Whipple Road,
1345 Doolittle Drive, and 1850 Westfork Drive. Information related to these
transactions is as follows:
<TABLE>
<CAPTION>
GAIN (LOSS)
PROPERTY SALES PRICE COST TO SELL NET PROCEEDS ON SALE
<S> <C> <C> <C> <C>
1200 Whipple Road and
1345 Doolittle Drive $26,512,375 $413,288 $26,099,087 $8,543,703
1850 Westfork Drive 2,600,000 111,600 2,488,400 (19,785)
Other selling costs 22,227 (22,227)
------------- ------------ ------------- ------------
$29,112,375 $547,115 $28,587,487 $8,501,691
============= ============ ============= ============
</TABLE>
During 1997, the Venture consummated the sale of Brookdale Center and
the Chicago Industrial properties. Brookdale Center was sold for a cash
price of $24,830,000, of which the Venture's portion was $17,793,352. Prior
to the sale, the Venture held a 71.66% interest in Brookdale Center.
- 10 -
<PAGE> 45
ML/EQ REAL ESTATE PORTFOLIO, L.P.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS --(Continued)
<TABLE>
<CAPTION>
PROPERTY SALES PRICE COST TO SELL NET PROCEEDS GAIN ON SALE
<S> <C> <C> <C> <C>
Brookdale Center $17,793,352 $ 59,092 $17,734,260 $1,918,951
Chicago Industrials 7,860,000 211,000 7,649,000 1,369,187
------------- -------------- ------------- -------------
$25,653,352 $270,092 $25,383,260 $3,288,138
============= ============== ============= =============
</TABLE>
4. RENTAL PROPERTIES HELD FOR SALE
At December 31, 1999, Northland Center is classified as held for sale.
The carrying value of Northland Center was adjusted to the lower of cost or
estimated net realizable value, resulting in a loss of $18,905,658 in 1999.
Prior to being sold in 1999 (see Note 3), 300 Delaware was adjusted to the
lower of cost or estimated net realizable value, resulting in a loss of
$2,114,680.
At December 31, 1998, Richland Mall, 300 Delaware, and 16/18 Sentry
Park West properties were classified as held for sale. The carrying values
of Richland Mall and 300 Delaware were adjusted to the lower of cost or
estimated net realizable value, resulting in losses of $5,155,515 and
$4,438,162, respectively, recorded during 1998.
Rental properties held for sale consist of the following at December
31, 1999 and 1998:
<TABLE>
<CAPTION>
1999 1998
<S> <C> <C>
Retail.............................. $21,814,303 $ 8,736,450
Office.............................. 10,235,545
Industrial.......................... 22,943,305
----------- -----------
Total $21,814,303 $41,915,300
=========== ===========
</TABLE>
5. ZERO COUPON MORTGAGE NOTES RECEIVABLE
Brookdale Center
The Venture held a 71.66% participation interest in a zero coupon
mortgage note. The property which secured this first mortgage note is
Brookdale Center, located outside Minneapolis, Minnesota. The borrower was
Midwest Real Estate Shopping Center L.P. ("Midwest"), a publicly traded
limited partnership (formerly Equitable Real Estate Shopping Centers,
L.P.).
On December 16, 1996, Brookdale Center was transferred to the Venture
and Equitable, as tenants in common. Following the transfer, Brookdale
Center was reclassified from zero coupon mortgage note receivable to rental
properties and income and expenses were recorded from that date. In
November 1997, the Venture sold Brookdale Center to Talisman Brookdale
L.L.C. for $24,830,000, of which the Venture's portion was approximately
$17,793,000.
- 11 -
<PAGE> 46
ML/EQ REAL ESTATE PORTFOLIO, L.P.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS --(Continued)
Northland Center
Until July 22, 1994, the Venture also held a 71.66% participation
interest in a zero coupon mortgage note and the first mortgage on Northland
Center which is located outside of Detroit, Michigan. The borrower was
Midwest.
On July 22, 1994, Midwest transferred Northland Center to the Venture
and Equitable in proportion to their respective undivided interests in the
Northland Center mortgage. Following the transfer, which was retroactive as
of January 1, 1994, Northland Center was reclassified from other real
estate assets to rental properties and income and expenses were adjusted as
of that date. The Venture records its proportionate share of the assets,
liabilities, revenues, and expenses of the undivided interests in Northland
Center in accordance with the tenancy in common arrangements in the
Participation Agreement between the Venture and Equitable.
6. MORTGAGE LOAN RECEIVABLE
In 1989, the Venture made a $6,000,000 nonrecourse first mortgage loan
bearing interest at 10.25% per annum. The loan was collateralized by an
apartment complex in Weston, Massachusetts. This note matured and was paid
in full on February 1, 1999.
7. GUARANTY AGREEMENT
EREIM LP Associates has entered into a guaranty agreement with the
Venture to provide a minimum return to the Partnership's limited partners
on their contributions. The Venture has assigned its rights under the
guaranty agreement to the Partnership. Payments on the guaranty are due 90
days following the earlier of the sale or other disposition of all the
properties and mortgage loans and notes or the liquidation of the
Partnership. The minimum return will be an amount which, when added to the
cumulative distributions to the limited partners, will enable the
Partnership to provide the limited partners with a minimum return equal to
their capital contributions plus a simple annual return of 9.75% on their
adjusted capital contributions calculated from the dates of the investor
closings. Adjusted capital contributions are the limited partners' original
cash contributions reduced by distributions of sale or financing proceeds
and by distributions of certain funds in reserves, as more particularly
described in the Partnership Agreement. The limited partners' original cash
contributions have been adjusted by that portion of distributions paid
through December 31, 1999, resulting from cash available to the Partnership
as a result of sale or financing proceeds paid to the Venture. The minimum
return is subject to reduction in the event that certain taxes, other than
local property taxes, are imposed on the Partnership or the Venture, and is
also subject to certain other limitations set forth in the prospectus. If
there were no further distributions until December 31, 2002, the expiration
of the term of the Partnership, the maximum liability of EREIM LP
Associates to the Venture under the guaranty agreement as of December 31,
1999, would be limited to $73,813,456, plus the value of EREIM LP
Associates' interest in the Venture less any amounts contributed by EREIM
LP Associates to the Venture to fund cash deficits.
Capital contributions by the BAC holders totaled $108,484,500. As of
December 31, 1999, the cumulative 9.75% simple annual return was
$111,468,412. As of December 31, 1999, cumulative distributions by the
Partnership to the BAC holders totaled $146,139,456, of which $27,663,548
is attributable to income from operations and $118,475,908 is attributable
to sales of Venture assets, principal payments on mortgage loans, and other
capital events. To the extent that future cash
- 12 -
<PAGE> 47
ML/EQ REAL ESTATE PORTFOLIO, L.P.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS --(Continued)
distributions to the limited partners are insufficient to provide the
specified minimum return, any shortfall will be funded by the guarantor, up
to the above described maximum.
Effective as of January 1, 1997, the Partnership entered into an
amendment to the Joint Venture Agreement of the Venture between the
Partnership and EREIM LP Associates pursuant to which EREIM LP Associates
agreed to defer, without interest, its rights to receive 20% of the
Venture's distributions of sale or financing proceeds until the Partnership
has received aggregate distributions from the Venture in an amount equal to
the capital contributions made to the Partnership by the BAC holders plus a
noncompounded cumulative return computed at the rate of 9.75% per annum on
contributions outstanding from time to time. Prior to the amendment, EREIM
LP Associates had a right to receive 20% of all the Venture's distributions
of sale or financing proceeds on a pari passu basis with the Partnership.
The amendment has the effect of accelerating the return of original
contributions to BAC holders to the extent that sale or financing proceeds
are realized prior to the dissolution of the Partnership.
8. COMPENSATION AND FEES
Acquisition/Syndication Fee - The acquisition/syndication fee was paid
to the general partners for initial acquisition, management, and
administrative services to the Partnership. The fee was 8.7% of the
proceeds from the offering of BACs, which amounted to $9,438,152 based upon
the total number of BACs sold and has been included in the offering costs
charged to limited partners' capital. The outstanding balance of this fee
was paid to the general partners in August 1990.
Asset Management Fees:
Venture supervisory fee - The Venture supervisory fee is payable to
the Managing General Partner for supervising the Partnership's
investment in the Venture. The fee is payable semiannually in an
amount equal to .75% per annum of the Partnership's allocable
share of the acquisition price of properties owned by the
Venture. For each of the years ended December 31, 1999, 1998, and
1997, the total expense for this fee was $361,999, $602,323, and
$737,702, respectively.
Mortgage loan servicing fee - The mortgage loan servicing fee is
payable to the Managing General Partner for servicing mortgage
loans owned by the Venture. The fee is payable semiannually in an
amount equal to .20% per annum of the outstanding principal
amount of the Partnership's allocable share of fixed-rate first
mortgage loans and .20% per annum of the Partnership's allocable
share of the accreted amount of zero coupon mortgage notes at the
time of acquisition or contribution to the Venture. For each of
the years ended December 31, 1999, 1998, and 1997, the total
expense for this fee was $800, $9,600, and $9,600, respectively.
Partnership Administration Fee - The Partnership administration fee is
payable to the Associate General Partner as compensation for providing
investor services limited to processing investor information and
disseminating Partnership reports and tax information. The fee is payable
on a semiannual basis at an annual rate of .15% per annum of the average
annual adjusted capital contributions of the offering of BACs. For the
years ended December 31, 1999, 1998, and 1997, the total expense for this
fee was $36,853, $109,210, and $154,109, respectively.
Property Management Fees - Properties are managed and leased by
third-party managing and leasing agents, including Compass Management and
Leasing, Inc. ("Compass") and ERE Yarmouth Retail,
- 13 -
<PAGE> 48
ML/EQ REAL ESTATE PORTFOLIO, L.P.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS --(Continued)
Inc. ("Retail"), which were affiliates of Lend Lease. As discussed in
Note 1, until June 10, 1997, ERE, the predecessor company to Lend Lease,
was an affiliate of Equitable. Property management fees are generally
established at specified percentages of 1% to 5% of the gross receipts of
the properties as defined in the management agreements. On September 30,
1998, Compass and Retail were sold to LaSalle Partners Incorporated
("LaSalle"). Compass and Retail earned approximately $292,713 and $396,440
in property management fees for properties managed for the nine months
ended September 30, 1998 and the year ended December 31, 1997,
respectively.
Leasing commissions are based on a percentage of the rent payable
during the term of the lease as specified in each lease agreement. Leasing
commissions paid by the Venture to Compass and Retail were $58,698 and
$276,314 for the nine months ended September 30, 1998 and the year ended
December 31, 1997, respectively. Leasing commissions are capitalized in
deferred leasing costs on the balance sheet or expensed in real estate
operating expenses on the statement of operations in accordance with the
Venture's capitalization policy. The Venture reimbursed Compass and Retail
for payroll incurred of $1,321,615 and $1,785,133 for the nine months ended
September 30, 1998 and the year ended December 31, 1997, respectively.
Payroll reimbursements are included in real estate operating expenses on
the statement of operations. Additionally, the Venture paid construction
management fees to Compass and Retail of $11,829 for the year ended
December 31, 1997. The construction management fees were capitalized as a
portion of the construction projects to which they related.
Guaranty Fee - The guaranty fee is payable to the Venture in
consideration of the assignment of the guaranty agreement. The fee was
initially paid in six semiannual installments, which commenced on June 30,
1988 and ended on December 31, 1990, at an annual rate of 1.15% of gross
proceeds plus .35% of average annual adjusted capital contributions.
Subsequent to December 31, 1990, the fee is payable on a semiannual basis
at an annual rate of .35% of the average annual adjusted capital
contributions of the offering of BACs. The guaranty fee is assigned to
EREIM LP Associates. The total of the recurring portion of the guaranty fee
which is included in general and administrative expense on the statement of
operations was $85,990, $254,824, and $359,587, for the years ended
December 31, 1999, 1998, and 1997, respectively. The amortization expense
on the nonrecurring portion of the fee was $268,251 in each of the years
ended December 1999, 1998, and 1997.
Disposition Fee - The disposition fee is payable to the Managing
General Partner in the case of a sale of a property. Upon distribution of
the proceeds of the sale to the limited partners, the fee is payable in the
amount of 1.50% of the aggregate gross proceeds received by the
Partnership. The Managing General Partner will not receive any portion of
the disposition fee which, when combined with amounts paid to all other
entities as real estate brokerage commissions in connection with the sale,
exceeds 6% of the aggregate gross sale proceeds. Such amounts shall not be
payable until such time as the BAC holders and limited partners as a class
have received distributions of sale or financing proceeds in a cumulative
amount equal to their capital contributions. The disposition fees related
to all of the properties sold during 1999, 1998, and 1997 have been
deferred, without interest, until such time as the required distributions
to BAC holders and limited partners are met, and therefore, have not been
accrued.
9. PARTNERSHIP AGREEMENT
The general partners are liable for all general obligations of the
Partnership to the extent not paid by the Partnership. The limited partners
are not liable for the obligations of the Partnership beyond the amount of
their contributed capital.
- 14 -
<PAGE> 49
ML/EQ REAL ESTATE PORTFOLIO, L.P.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS --(Continued)
After payment of the acquisition/syndication fee to the general
partners, which has been charged to the limited partners' capital,
distributable cash from operations, less any amounts set aside for
reserves, will be distributed semiannually on the basis of 95% to the BAC
holders and limited partners as a group and 5% to the general partners.
Distributions to the general partners for any semiannual period will be
deferred until the limited partners have received a 6% per annum simple
return on their adjusted capital contribution during the period.
Taxable income and loss will generally be allocated 1% to the general
partners and 99% to the limited partners.
Distributions from sale or financing proceeds, if applicable during a
period, will be distributed on a semiannual basis with priority return
given to the limited partners. An exception in the agreement provides that
the distribution of sale or financing proceeds may be delayed if the
purpose for withholding such a distribution is to supplement cash reserves.
Subsequent to a complete return of the limited partners' capital
contributions and the receipt of the minimum return by the limited
partners, as defined in the Partnership Agreement, sales proceeds will be
allocated to the general partners to the extent of any distributable cash
that has been deferred, net of disposition fees paid to the Managing
General Partner. The balance will be allocated 85% to the limited partners
and 15% to the general partners.
10. LEASES
Future minimum rentals to be received for the properties under
noncancellable operating leases in effect as of December 31, 1999 are as
follows:
<TABLE>
<CAPTION>
YEAR ENDING
DECEMBER 31,
<S> <C>
2000........................... $ 3,678,152
2001........................... 3,386,857
2002........................... 2,947,740
2003........................... 2,355,069
2004........................... 2,129,480
Thereafter..................... 5,368,201
-------------
Total.......................... $ 19,865,499
=============
</TABLE>
In addition to the minimum lease amounts, certain leases provide for
escalation charges to tenants for common area maintenance and real estate
taxes. The amount of escalation charges included in rental income totaled
$6,036,240, $6,948,710, and $9,172,055, for the years ended December 31,
1999, 1998, and 1997, respectively.
In the case of retail tenants, certain leases provide for percentage
rents. Contingent rentals which include percentage rents included in rental
income for the years ended December 31, 1999, 1998, and 1997 totaled
$448,308, $532,987, and $621,290, respectively.
- 15 -
<PAGE> 50
ML/EQ REAL ESTATE PORTFOLIO, L.P.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS --(Continued)
Information with respect to significant individual leases is as follows:
o Hudson's Department Store, J.C. Penney, and Target operate stores
at Northland Center and each contributes common area maintenance
payments for operating expenses and real estate taxes under
separate agreements. These stores, covering 511,509 square feet,
283,534 square feet, and 117,000 square feet, respectively, are
not included in the gross leasable area of the mall.
11. TAXABLE NET INCOME AND TAX NET WORTH
The following is a reconciliation of the Partnership's financial net
income to taxable net income and a reconciliation of partners' capital for
financial reporting purposes to net worth on a tax basis:
<TABLE>
<CAPTION>
1999 1998 1997
<S> <C> <C> <C>
Financial net income (loss).............. $(9,571,754) $ 3,266,840 $ 8,112,151
Net book to tax difference from
investment in joint venture............ 4,386,094 9,937,073 1,899,092
-------------- -------------- --------------
Taxable net income (loss) $(5,185,660) $13,203,913 $10,011,243
============== ============== ==============
Capital balance, financial reporting..... $ 6,567,926 $67,941,028 $94,615,973
Cumulative book to tax income differences
from investment in joint venture....... 17,295,934 12,909,840 2,972,767
-------------- -------------- --------------
Net worth, tax basis............... $23,863,860 $80,850,868 $97,588,740
============== ============== ==============
</TABLE>
12. LEGAL PROCEEDINGS
The Partnership is a defendant in a consolidated action brought in the
Court of Chancery of the State of Delaware entitled IN RE: ML/EQ Real
Estate Partnership Litigation. The consolidated action results from two
related cases. Scher v. ML/EQ Real Estate Portfolio, L.P., et al., was
served on the Partnership on July 14, 1997. On September 8, 1997, the
Partnership was named as a defendant in Folette v. ML/EQ Real Estate
Portfolio, L.P., et al., a substantially similar complaint, also brought in
the Court of Chancery of the State of Delaware. The cases were consolidated
pursuant to a stipulation between the parties by order of the court on
October 3, 1997. In addition to the Partnership, the complaint names as
defendants EREIM Managers Corp., Equitable, ERE, EREIM L.P. Corp., and
EREIM LP Associates.
The Plaintiffs purport to sue on behalf of a class of all limited
partners of the Partnership who purportedly have been or will be adversely
affected by the conduct of the defendants. The complaints filed in 1997
alleged that the defendants have caused the Venture to accumulate excessive
cash rather than distribute it to the limited partners, and that
defendants' motive in so doing was (i) to manipulate the Partnership's cash
flow so as to limit certain defendants' exposure under the guarantee
agreement, and (ii) to secure for certain defendants additional fees. The
complaint also alleges that defendants have utilized the Venture to provide
liquidity for illiquid assets and to acquire and continue to hold
under-performing properties. The complaint purports to state claims for
breach of fiduciary duties, breach of contract, and aiding and abetting
breach of fiduciary duties. The complaint requests, among other things,
money damages in an unspecified amount and orders that defendants
distribute to the purported class the cash which defendants have allegedly
wrongfully failed to distribute and disgorge
- 16 -
<PAGE> 51
ML/EQ REAL ESTATE PORTFOLIO, L.P.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS --(Continued)
all earnings, profits, interests, and other benefits, which they have
realized on account of their allegedly wrongful conduct. The Partnership
intends to defend vigorously against these claims. In August 1999,
Plaintiffs filed an amended complaint alleging that, in addition to the
allegations made previously, certain distributions from the Partnership
were improperly characterized as a sale or financing proceeds rather than
distributable cash. Defendants answered the complaint, denying any
wrongdoing, and filed a motion to dismiss the amended complaint on statute
of limitation grounds. The court granted in part, and denied in part,
defendants' motion to dismiss the amended complaint. Plaintiff's claim that
the defendants failed to distribute cash and part of Plaintiff's
mischaracterization claim remain in this case. Plaintiff filed a motion for
reconsideration. Although the outcome of any litigation cannot be predicted
with certainty, the Partnership's management believes that the ultimate
resolution of the litigation will not have a material adverse effect on the
financial condition of the Partnership.
13. SEGMENT REPORTING
The Partnership owns or has owned real estate investments in the
retail, office and industrial sectors, and mortgage loan investments.
Revenues, depreciation and amortization, loss on write-down of assets,
income (loss) before minority interest, identifiable assets and capital
expenditures are as follows:
<TABLE>
<CAPTION>
MORTGAGE CORPORATE/
RETAIL OFFICE INDUSTRIAL LOANS OTHER TOTAL
<S> <C> <C> <C> <C> <C> <C>
REVENUES
1999......................$ 10,644,097 $ 4,276,899 $ 27,258 $ 51,250 $ 14,999,504
1998...................... 12,459,404 5,421,059 2,106,726 615,000 20,602,189
1997...................... 16,640,481 4,561,285 3,389,419 615,000 25,206,185
DEPRECIATION AND AMORTIZATION
1999...................... 789,345 $ 268,251 1,057,596
1998...................... 1,752,972 872,814 282,083 268,251 3,176,120
1997...................... 2,060,390 1,504,364 717,272 268,251 4,550,277
LOSS ON WRITE-DOWN OF ASSETS
1999...................... 18,905,658 2,114,680 21,020,338
1998...................... 5,155,515 4,438,162 650,000 10,243,677
1997......................
INCOME (LOSS) BEFORE MINORITY INTEREST
1999...................... (16,338,003) 5,081,542 27,715 51,250 (556,045) (11,733,541)
1998...................... (1,604,845) (2,550,793) 9,174,617 615,000 (1,180,641) 4,453,338
1997...................... 6,446,193 512,146 3,468,153 615,000 (495,330) 10,546,162
IDENTIFIABLE ASSETS
1999...................... 26,162,056 11,589 12,195,830 38,369,475
1998...................... 53,639,378 34,106,638 73,906 6,000,000 11,957,376 105,777,298
1997...................... 59,299,579 37,123,336 21,325,610 6,000,000 21,989,657 145,738,182
CAPITAL EXPENDITURES
1999...................... 1,333,880 722,663 2,056,543
1998...................... 902,537 2,572,687 23,685 3,498,909
1997...................... 4,014,796 2,106,168 95,386 6,216,350
</TABLE>
- 17 -
<PAGE> 52
ML/EQ REAL ESTATE PORTFOLIO, L.P.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS --(Continued)
Mortgage loans transferred to the retail segment were transferred at
the lower of cost or market value at such time that the Venture gained
control of the underlying asset.
14. SUBSEQUENT EVENT
On February 25, 2000, J.C. Penney announced that they would be closing 45
unprofitable department stores in their chain. On March 9, 2000, J.C.
Penney provided a list of the stores that they intend to close. Included on
that list was the Northland Center store, which is scheduled to be closed
on June 1, 2000. J.C. Penney currently occupies 283,534 square feet at
Northland Center and leases the building from a third party and ground
leases the underlying land from another third party. Their lease expires on
May 31, 2005, but their operating agreement expired in 1997. J.C. Penney is
contractually obligated to pay rent and reimbursements through the end of
their lease term. Future minimum rentals in effect as of December 31, 1999
for J.C. Penney included in Note 10 are as follows: $64,495 in each of the
years 2000 through 2004 and $26,873 thereafter. There are a number of
tenants in Northland Center who have co-tenancy clauses in their leases
that entitle them to terminate their respective leases or convert to
percentage rent in the event that one or more anchor tenants vacate and/or
the space remains vacant for a specified period of time. The anticipated
closure of J.C. Penney on June 1, 2000 may trigger such clauses in the
future and negatively impact the performance of Northland Center.
- 18 -
<PAGE> 53
CONSOLIDATED SUPPLEMENTAL SCHEDULES
(See Independent Auditors' Report)
- 19 -
<PAGE> 54
ML/EQ REAL ESTATE PORTFOLIO, L.P. SCHEDULE III
CONSOLIDATED SCHEDULE OF REAL ESTATE HELD FOR INVESTMENT AND
ACCUMULATED DEPRECIATION AS OF DECEMBER 31, 1999 AND
FOR THE YEARS ENDED DECEMBER 31, 1999, 1998, AND 1997
<TABLE>
<CAPTION>
RECONCILIATION OF BEGINNING AND ENDING
BALANCES 1999 1998 1997
<S> <C> <C> <C>
Rental Properties:
Balance at beginning of year.............. $ 45,459,870 $127,666,639 $145,257,804
Properties reclassified to held for sale.. (46,750,007) (61,582,516)
Cost of real estate sold.................. (23,812,519) (23,154,113)
Improvements.............................. 1,290,137 3,188,266 5,562,948
----------------- ----------------- ---------------
Balance at end of year.................... $ - $ 45,459,870 $127,666,639
================= ================= ===============
Accumulated Depreciation:
Balance at beginning of year.............. $ 5,586,628 $ 18,384,929 $ 15,898,604
Depreciation for year..................... 789,345 2,736,796 2,486,325
Real estate sold.......................... (4,283,456)
Properties reclassified to held for sale.. (6,375,973) (11,251,641)
----------------- ----------------- ----------------
Balance at end of year.................... $ - $ 5,586,628 $ 18,384,929
================= ================= ===============
</TABLE>
- 20 -
<PAGE> 55
ML/EQ REAL ESTATE PORTFOLIO, L.P. SCHEDULE IV
CONSOLIDATED SCHEDULE OF MORTGAGE LOANS ON REAL ESTATE
AS OF DECEMBER 31, 1999 AND FOR THE YEARS ENDED DECEMBER 31, 1999, 1998 AND 1997
<TABLE>
<CAPTION>
1999 1998 1997
<S> <C> <C> <C>
Balance at beginning of period ............... $ 6,000,000 $6,000,000 $6,000,000
Repayment..................................... (6,000,000)
-------------- --------------- ---------------
Balance at end of year .....................(a) $ - $6,000,000 $6,000,000
============== =============== ===============
</TABLE>
NOTES:
(a) Loan matured and was paid in full on February 1, 1999.
- 21 -
<PAGE> 56
SIGNATURES
Pursuant to requirements of Section 13 or 15(d) of the Securities Exchange Act
of 1934, as amended, the registrant has duly caused this report to be signed on
its behalf by the undersigned, thereunto duly authorized on the 30th day of
March, 2000.
ML/EQ REAL ESTATE PORTFOLIO, L.P.
By: EREIM MANAGERS CORP.
(Managing General Partner)
By: /s/Joseph A. DeLuca
------------------------------------------------
JOSEPH A. DELUCA
President, Chief Executive Officer and Director
Pursuant to the requirements of the Securities Exchange Act of 1934,
this report has been signed by the following persons on behalf of the registrant
and in the capacities indicated on March 30, 2000.
/s/Joseph A. DeLuca
----------------------------------------------------
JOSEPH A. DELUCA
President, Chief Executive Officer and Director
of EREIM Managers Corp. (principal executive officer)
/s/Linda M. Hart
----------------------------------------------------
LINDA M. HART
Vice President and Treasurer
of EREIM Managers Corp.(principal financial officer)
/s/Peter D. Noris
----------------------------------------------------
PETER D. NORIS
Director of EREIM Managers Corp.
/s/Anthony C. Pasquale
----------------------------------------------------
ANTHONY C. PASQUALE
Director of EREIM Managers Corp.
-34-
<PAGE> 57
EXHIBIT INDEX
Exhibit
4. (a) Amended and Restated Agreement of Limited Partnership
dated April 23, 1987. Included as an Exhibit
to the Prospectus (see Exhibit 99(a)).
(b) Amendment to Amended and Restated Agreement of Limited
Partnership dated February 9, 1988 (incorporated by reference
to Exhibit 4(b) to the Partnership's Annual Report on Form
10-K for the Fiscal Year Ended December 31, 1987 (File No.
33-11064) (the "1987 10-K")).
10. Material Contracts.
(a) Purchase and Sale Agreement between EML Associates and The
Rubenstein Company, L.P. dated April 21, 1999.
(b) Purchase and Sale Agreement between EML Associates and Income
Growth Fund II, Inc. dated August 20, 1999.
(c) Real Estate Investment Advisory Agreement by and between
EREIM Managers Corp. and Equitable Real Estate Investment
Management, Inc. (currently Lend Lease, Inc.) dated as of
June 10, 1997 (incorporated by reference to Exhibit 10(a) to
the 1998 10-K).
(d) Purchase and Sale Agreement by and between The Equitable Life
Assurance Society of the United States and Talisman Brookdale
L.L.C., dated September 2, 1997 (incorporated by reference to
Exhibit 10(b) to the 1998 10-K).
(e) Purchase and Sale Agreement by and between EML Associates and
SPP Real Estate (O'Hare), Inc., dated December 31, 1997
(incorporated by reference to Exhibit 10(c) to the 1997
10-K).
(f) Form of Beneficial Assignee Certificate (incorporated by
reference to Exhibit 10(a) to Pre-Effective Amendment No. 1
to the Registration Statement of the Partnership (File No.
33-11064)).
(g) Agreement Between General Partners (incorporated by reference
to Exhibit 10(c) to the 1987 10-K).
(h) Joint Venture Agreement of EML Associates (incorporated by
reference to Exhibit 10(d) to the 1987 10-K).
(i) Investment Guaranty Agreement between the Venture and EREIM
LP Associates (incorporated by reference to Exhibit 10(e) to
the 1987 10-K).
-35-
<PAGE> 58
(j) Assignment Agreement between Registrant and Venture
(incorporated by reference to Exhibit 10(f) to the 1987
10-K).
(k) Keep Well Agreement between The Equitable Life
Assurance Society of the United States and EREIM LP\ Corp.
(incorporated by reference to Exhibit 10(g) to the 1987
10-K).
(l) Amended and Restated Agreement of General Partnership of
EREIM LP Associates (incorporated by reference to Exhibit
10(h) to the 1987 10-K).
(m) Form of Participation Agreement between The Equitable
Life Assurance Society of The United States and EML
Associates dated September 27, 1988 (incorporated by
reference to Exhibit No. 2 to Form 8-K dated September 27,
1988 of ML/EQ Real Estate Portfolio, L.P. (File No.
33-11064)).
(n) Note and Mortgage and Security Agreement dated January 31,
1989 relating to loan by EML to The Wilcon Company
(incorporated by reference to Exhibit No. 4 to Form 8-K
dated December 27, 1988 of ML/EQ Real Estate Portfolio, L.P.
(File No. 33-11064)).
27. Financial Data Schedule, which is submitted electronically to the
Securities and Exchange Commission for information only and not
filed.
99. Additional Exhibits.
(a) Prospectus dated April 23, 1987, as supplemented by
supplements dated December 29, 1987, March 3, 1988 and March
17, 1988 (incorporated by reference to Exhibit 28 to the 1987
10-K).
(b) Amendment to Joint Venture Agreement dated as of January 1,
1997 between ML/EQ Real Estate Portfolio, L.P. and EREIM LP
Associates (incorporated by reference to Exhibit 99(i) of the
Form 10-K of the Partnership for the year ended December 31,
1996)
-36-
<PAGE> 1
EXHIBIT 10(a)
300 DELAWARE AVENUE
WILMINGTON, DELAWARE
PURCHASE AND SALE AGREEMENT
BETWEEN
EML ASSOCIATES
a New York general partnership
AS SELLER
AND
THE RUBENSTEIN COMPANY, L.P., a
Delaware limited partnership
AS PURCHASER
As of April 21, 1999
<PAGE> 2
PURCHASE AND SALE AGREEMENT
THIS PURCHASE AND SALE AGREEMENT (the "Agreement") is made as
of the 21st day of April, 1999 (the "Effective Date"), by and between EML
ASSOCIATES, a New York general partnership ( "Seller" ), having an office at
1290 Avenue of the Americas, New York, New York 10104, and THE RUBENSTEIN
COMPANY, L.P., a Delaware limited partnership ("Purchaser"), having an office at
4100 One Commerce Square, 2005 Market Street, Philadelphia, Pennsylvania
19103-7041.
WITNESSETH:
ARTICLE I
PURCHASE AND SALE
1.1 Agreement of Purchase and Sale. Subject to the terms and
conditions hereinafter set forth, Seller agrees to sell and convey and Purchaser
agrees to purchase the following:
(a) that certain tract or parcel of land situated in
Wilmington, New Castle County, Delaware, more particularly described on Exhibit
A attached hereto and made a part hereof, together with all and singular the
rights and appurtenances pertaining to such property, including any right, title
and interest of Seller in and to adjacent streets, alleys or rights-of-way (the
property described in clause (a) of this Section 1. 1 being herein referred to
collectively as the "Land");
(b) the buildings, structures, fixtures and other
improvements on the Land, including specifically, without limitation, that
certain office building located thereon having a street address of 300 Delaware
Avenue (the property described in clause (b) of this Section 1.1 being herein
referred to collectively as the "Improvements");
(c) all of Seller's right, title and interest in and to
all tangible personal property upon the Land or within the Improvements,
including specifically, without limitation, appliances, furniture, carpeting,
draperies and curtains, tools and supplies, and other items of personal property
(excluding cash) used exclusively in connection with the operation of the Land
and the Improvements and only as specifically described on Exhibit B attached
hereto and made a part hereof (the property described in clause (c) of this
Section 1.1 being herein referred to collectively as the "Personal Property");
(d) all of Seller's right, title and interest in and to
all agreements listed and described on Exhibit C (the "Lease Schedule") attached
hereto and made a part hereof, pursuant to which any portion of the Land or
Improvements is used or occupied by anyone other than Seller (the property
described in clause (d) of this Section 1.1 being herein referred to
collectively as the "Leases"); and
<PAGE> 3
(e) all of Seller's right, title and interest in and to
(i) all assignable contracts and agreements (collectively, the "Operating
Agreements") listed and described on Exhibit D (the "Operating Agreements
Schedule") attached hereto and made a part hereof, relating to the upkeep,
repair, maintenance or operation of the Land, Improvements or Personal Property
which will extend beyond the date of Closing (as such term is defined in Section
4.1 hereof), including specifically, without limitation, all assignable
equipment leases, and (ii) all assignable existing warranties and guaranties
(expressed or implied) issued to Seller in connection with the Improvements or
the Personal Property (the property described in this Section 1. 1 (e) being
sometimes herein referred to collectively as the "Intangibles").
1.2 Property Defined. The Land, the Improvements, the Personal
Property, the Leases and the Intangibles are hereinafter sometimes referred to
collectively as the "Property."
1.3. Permitted Exceptions. The Property shall be conveyed
subject to the matters which are, or are deemed to be, Permitted Exceptions
pursuant to Article II hereof (herein referred to collectively as the "Permitted
Exceptions").
1.4 Purchase Price. Seller is to sell and Purchaser is to
purchase the Property for a total of EIGHT MILLION SEVEN HUNDRED FIFTY THOUSAND
AND 00/100 DOLLARS ($8,750,000.00) (the "Purchase Price").
1.5 Payment of Purchase Price. The Purchase Price, as
increased or decreased by prorations and adjustments as herein provided, shall
be payable in full at Closing in cash by wire transfer of immediately available
federal funds to a bank account designated by Seller in writing to Purchaser
prior to the Closing.
1.6 Earnest Money.
(a) Simultaneously with the execution and delivery of this
Agreement, Purchaser is depositing with Chicago Title Insurance Company ("Escrow
Agent"), having an office at 1601 Market Street, Suite 2550, Philadelphia,
Pennsylvania 19103, Attention: Adrienne Verdone, the sum of Two Hundred Fifty
Thousand and 00/100 Dollars ($250,000.00) (the "First Deposit") in good funds,
either by certified bank or cashier's check or by federal wire transfer. If
Purchaser does not exercise the right to terminate this Agreement in accordance
with Section 2.3 or Section 3.2 hereof, Purchaser shall, on or before the last
date of the Inspection Period (as such term is defined in Section 3.1 hereof),
deposit with the Escrow Agent the additional sum of Two Hundred Fifty Thousand
and No/100 Dollars ($250,000) (the "Second Deposit") in good funds, either by
certified bank or cashier's check or by federal wire transfer as an additional
deposit under this Agreement. Escrow Agent shall hold the First Deposit and
Second Deposit in an interest-bearing account in accordance with the terms and
conditions of an escrow agreement entered into among Seller, Purchaser and
Escrow Agent simultaneously with
<PAGE> 4
the execution of this Agreement. The First Deposit and Second Deposit, together
with all interest earned on such sums, are herein referred to collectively as
the "Ernest Money." All interest accruing on such sum shall become a part of the
Earnest Money and shall be distributed as Earnest Money in accordance with the
terms of this Agreement.
(b) If Purchaser does not exercise its termination rights
under Sections 2.3 and 3.2 and Purchaser fails to deliver the Second Deposit to
the Escrow Agent within the time period specified above, this Agreement shall
terminate automatically on the last day of the Inspection Period, Escrow Agent
shall deliver the Earnest Money to Seller promptly thereafter and neither party
shall have any further rights, obligations or liabilities hereunder except to
the extent that any right, obligation or liability set forth herein expressly
survives termination of this Agreement. Time is of the essence for the delivery
of Earnest Money under this Agreement.
1.7 Independent Contract Consideration. In addition to the
Earnest Money, Purchaser shall, concurrently with its execution hereof, deliver
to Seller a check in the amount of ONE HUNDRED DOLLARS AND NO/100 ($100.00),
which amount Seller and Purchaser agree has been bargained for as consideration
for Seller's execution and delivery of this Agreement and Purchaser's right to
inspect the Property pursuant to Article III. Such sum is in addition to and
independent of any other consideration or payment provided for in this Agreement
and is nonrefundable in all events.
ARTICLE II
TITLE AND SURVEY
2.1 Title Examination, Commitment for Title insurance.
Purchaser shall obtain, at Purchaser's expense, and shall deliver to Seller and
the surveyor preparing the Survey, from a nationally recognized title insurance
company selected by Purchaser (the "Title Company"), an ALTA title insurance
commitment (the "Title Commitment") covering the Property and a copy of each
document referenced in the Title Commitment as an exception to title the
Property. Purchaser shall have until the date (the "Title Exam Deadline"), which
is 10 days prior to the expiration of the Inspection Period (defined in Section
3.1 hereof) to review the Title Commitment and at Closing, at Purchaser's
expense, obtain from the Title Company an Owner's Policy of Title Insurance in
the full amount of the Purchase Price pursuant to Section 2.4 hereof.
2.2 Survey. Seller has obtained and delivered to Purchaser
prior to the date hereof from a surveyor or surveying firm licensed by the state
in which the Property is located, an ALTA survey of the Property (the "Survey")
reflecting the total area of the Property, the location of all improvements,
recorded easements and encroachments, if any, located thereon and other
<PAGE> 5
matters of record with respect thereto. If Closing is completed, Purchaser shall
reimburse Seller at Closing for the cost of the Survey in the amount of the
invoice previously delivered by Seller to Purchaser.
2.3 Title Objections: Cure of Title Objections.
(a) Purchaser shall have until the Title Exam Deadline to
notify Seller in writing of such objections as Purchaser may have to any
exceptions to title disclosed in the Title Commitment or the Survey. Any item
contained in the Title Commitment or matter shown on the Survey to which
Purchaser does not object prior to the Title Exam Deadline by timely written
notice shall be deemed a Permitted Exception. Time is of the essence with
respect to the provisions of this Section 2.3.
(b) In the event Purchaser shall notify Seller of
objections to title or matter of survey shown on the Survey prior to the Title
Exam Deadline, Seller shall have the right, but not the obligation, to cure such
objections. Within ten (10) days after receipt of Purchaser's notice of
objections, Seller shall notify Purchaser in writing whether Seller elects to
attempt to cure such objections. If Seller elects to attempt to cure, and
provided that Purchaser shall not have terminated this Agreement in accordance
with Section 3.2 hereof, Seller shall have until the date of Closing to attempt
to remove, satisfy or cure the same and for this purpose Seller shall be
entitled to a reasonable adjournment of the Closing if additional time is
required, but in no event shall the adjournment exceed thirty (30) days after
the date for Closing set forth in Section 4.1 hereof. If Seller elects not to
cure any objections specified in Purchaser's notice, or if Seller is unable to
effect a cure prior to the Closing (or any date to which the Closing has been
adjourned), Purchaser shall have the following options: (i) to accept a
conveyance of the Property subject to the Permitted Exceptions, specifically
including any matter objected to by Purchaser which Seller is unwilling or
unable to cure, and without reduction of the Purchase Price; or (ii) to
terminate this Agreement by sending written notice thereof to Seller, and upon
delivery of such notice of termination, this Agreement shall terminate and the
Earnest Money shall be returned to Purchaser as Purchaser's sole remedy; and
thereafter neither party hereto shall have any further rights, obligations or
liabilities hereunder except to the extent that any right, obligation or
liability set forth herein expressly survives termination of this Agreement. If
Seller notices Purchaser that Seller does not intend to attempt to cure any
title objection; or if, having commenced attempts to cure any objection, Seller
later notifies Purchaser that Seller will be unable to effect a cure thereof,
Purchaser shall, within ten (10) days after such notice has been given, notify
Seller in writing whether Purchaser shall elect to accept the conveyance under
clause (i) or to terminate this Agreement under clause (ii). If Purchaser fails
to give timely notice of its election to terminate this Agreement, Purchaser
shall be deemed to have elected to accept title subject to such exception
without adjustment of the Purchase Price.
2.4 Conveyance of Title. At Closing, Seller shall convey and
transfer to Purchaser such title to the Property as will enable the Title
Company to issue to Purchaser, at
<PAGE> 6
Purchaser's expense, an ALTA 1992 Owner's Policy of Title Insurance (the "Title
Policy") covering the Property, in the full amount of the Purchase Price,
provided, however, Purchaser agrees to accept title to the Property subject to
judgments and unsettled taxes against Seller provided the Title Company insures
Purchaser free of such judgments and unsettled taxes. Notwithstanding anything
contained herein to the contrary, the Property shall be conveyed subject to the
following matters, which shall be deemed to be Permitted Exceptions:
(a) the rights of tenants, as tenants only, under the
Leases and any new Leases entered into between the Effective Date and Closing
and, where required, approved by Purchaser in accordance with the terms of this
Agreement;
(b) the lien of all ad valorem real estate taxes and
assessments not yet due and payable as of the date of Closing, subject to
adjustment as herein provided;
(c) local, state and federal laws, ordinances or
governmental regulations, including but not limited to, building and zoning
laws, ordinances and regulations, now or hereafter in effect relating to the
Property;
(d) items appearing of record or shown on the Survey and,
in either case, not objected to by Purchaser or waived or deemed to be waived by
Purchaser in accordance with Sections 2.3 or 2.5 hereof; and
(e) any and all assessments becoming liens subsequent to
the date hereof, and in addition if at the date hereof the Property or any part
thereof shall be or shall have been affected by any assessment or assessments
which are payable in installments or may be paid in installments without penalty
(other than interest), Purchaser shall pay all such installments which shall
become due and payable or which may be paid without penalty (other than
interest) after the date hereof, except that any installment relating to the
current fiscal year (with any interest thereon) shall be apportioned between the
parties at Closing.
2.5 Pre-Closing "Gap" Title Defects. Whether or not Purchaser
shall have furnished to Seller any notice of title objections pursuant to the
foregoing provisions of this Agreement, Purchaser may, at or prior to Closing,
notify Seller in writing of any objections to title first raised by the Title
Company or the Surveyor between (a) the date which is the earlier of (i) the
effective date of Purchaser's Title Commitment referred to above or (ii) the
expiration of the Inspection Period, and (b) the date on which the transaction
contemplated herein is scheduled to close. With respect to any material
objections to title set forth in such notice, Seller shall have the same option
to cure and Purchaser shall have the same option to accept title subject to such
matters or to terminate this Agreement as those which apply to any notice of
objections made by Purchaser before the expiration of the Inspection Period. If
Seller elects to attempt to cure any such matters, the date for Closing shall be
automatically extended by a
<PAGE> 7
reasonable additional time to effect such a cure, but in no event shall the
extension exceed thirty (30) days after the date for Closing set forth in
Section 4.1 hereof.
ARTICLE III
INSPECTION PERIOD
3.1 Right of Inspection. During the period beginning upon the
Effective Date and ending at 5:00 p.m. (local time at the Property) June 4, 1999
(hereinafter referred to as the "Inspection Period"), Purchaser shall have the
right to make a physical inspection of the Property and to examine and copy at
such place or places at the Property, in the offices of the property manager or
elsewhere as the same may be located, any operating files maintained by Seller
or its property manager in connection with the leasing, current maintenance
and/or management of the Property, including, without limitation, the Leases,
lease files, Operating Agreements, insurance policies, bills, invoices, receipts
and other general records relating to the income and expenses of the Property,
correspondence, surveys, plans and specifications, warranties for services and
materials provided to the Property, environmental audits and similar materials,
but excluding materials not directly related to the leasing, current maintenance
and/or management of the Property such as, without limitation, Seller's internal
memoranda, financial projections, budgets, appraisals, accounting and tax
records and similar proprietary, elective or confidential information. Purchaser
understands and agrees that any on-site inspections of the Property shall be
conducted upon at least twenty-four (24) hours' prior written notice to Seller
and in the presence of Seller or its representative. Such physical inspection
shall not unreasonably interfere with the use of the Property by Seller or its
tenants nor shall Purchaser's inspection damage the Property in any respect.
Such physical inspection shall not be invasive in any respect (unless Purchaser
obtains Seller's prior written consent), and in any event shall be conducted in
accordance with standards customarily employed in the industry and in compliance
with all governmental laws, rules and regulations. Following each entry by
Purchaser with respect to inspections and/or tests on the Property. Purchaser
shall restore the Property to a condition which is as near to its original
condition as existed prior to any such inspections and/or tests. Seller shall
cooperate with Purchaser in its due diligence but shall not be obligated to
incur any liability or expense in connection therewith. Purchaser shall not
contact any tenants of the Property without obtaining Seller's prior written
consent and shall not disrupt Seller's or Seller's tenants' activities on the
Property. Purchaser agrees to indemnify against and hold Seller harmless from
any claim for liabilities, costs, expenses (including reasonable attorneys' fees
actually incurred) damages or injuries arising out of or resulting from the
inspection of the Property by Purchaser or its agents, and notwithstanding
anything to the contrary in this Agreement, such obligation to indemnify and
hold harmless Seller shall survive Closing or any termination of this Agreement.
In respect of the inspections, examinations and general due diligence
contemplated by this Section 3.1, Seller acknowledges and agrees to the
following: (a) that Purchaser will be permitted to conduct its inspections of
the Property and its examinations of the operating and other files, documents
and materials related to the Property as contemplated by this Agreement, all on
reasonable notice to Seller and accompanied by a representative of Seller
<PAGE> 8
as set forth herein, such to be conducted on business days and at times
reasonably required by Purchaser; and (b) that Purchaser will be permitted to
contact, acting through Seller but not Purchaser directly, and attempt to secure
through Seller estoppel certificates from, leasing brokers and vendors,
contractors or other service providers under the Operating Agreements. Seller
shall cooperate with Purchaser, in making available to Purchaser the items
Purchaser has identified on Schedule 3.1 attached hereto excluding only items
specifically excluded above in this Section 3.1.
3.2 Right of Termination. Seller agrees that in the event
Purchaser determines (such determination to be made in Purchaser's sole
discretion) that the Property is not suitable for its purposes, Purchaser shall
have the right to terminate this Agreement by giving written notice thereof to
Seller prior to the expiration of the Inspection Period. If Purchaser gives such
notice of termination within the Inspection Period, this Agreement shall
terminate and the Earnest Money shall be returned to Purchaser. Time is of the
essence with respect to the provisions of this Section 3.2. If Purchaser fails
to give Seller a notice of termination prior to the expiration of the Inspection
Period, Purchaser shall no longer have any right to terminate this Agreement
under this Section 3.2 and (subject to the provisions of Section 2.5) shall be
bound to proceed to Closing and consummate the transaction contemplated hereby
pursuant to the terms of this Agreement.
3.3 No Liens Permitted. Nothing contained in this Agreement
shall be deemed or construed in any way as constituting the consent or request
of Seller, express or implied by inference or otherwise, to any party for the
performance of any labor or the furnishing of any materials to the Property or
any part thereof, nor as giving Purchaser any right, power or authority to
contract for or permit the rendering of any services or the furnishing of any
materials that would give rise to the filing of any liens against the Property
or any part thereof. Prior to permitting any party to enter the Property prior
to closing for the purpose of performing any services or supplying any materials
for which such party could claim a mechanic's lien against the Property or any
part thereof, Purchaser shall cause to be filed in the applicable public filing
office, a waiver of mechanic's liens in form satisfactory to Seller by each of
the parties performing such work.
ARTICLE IV
CLOSING
4.1 Time and Place. The consummation of the transaction
contemplated hereby ("Closing") shall be held at the offices of Wolf, Block,
Schorr and Solis-Cohen LLP at 12th Floor Packard Building, 15th & Chestnut
Streets at 10:00 a.m. on July 7, 1999 or at such earlier date as Seller and
Purchaser may mutually agree upon in writing. At Closing, Seller and
<PAGE> 9
Purchaser shall perform the obligations set forth in, respectively, Section 4.2
and Section 4.3, the performance of which obligations shall be concurrent
conditions.
4.2 Seller's Obligations at Closing. At Closing, Seller shall:
(a) deliver to Purchaser a duly executed special warranty
deed the form of which is attached as Schedule 1 (the "Deed") in recordable
form, conveying the Land and Improvements, subject only to the Permitted
Exceptions; the warranty of title in the Deed will be only as to claims made by,
through or under Seller and not otherwise;
(b) deliver to Purchaser a duly executed bill of sale the
form of which is attached hereto as Schedule 2, conveying the Personal Property
without warranty of title or use and without warranty, expressed or implied, as
to merchantability and fitness for any purpose;
(c) assign to Purchaser, and Purchaser shall assume, the
landlord/lessor interest in and to the Leases by duly executed assignment and
assumption agreement the form of which is attached hereto as Schedule 3,
pursuant to which (i) Seller shall indemnify Purchaser and hold Purchaser
harmless from and against any and all claims pertaining to the Leases arising
prior to Closing and (ii) Purchaser shall indemnify Seller and hold Seller
harmless from and against any and all claims pertaining to the Leases arising
from and after the Closing, including without limitation, claims made by tenants
with respect to tenants' security deposits to the extent paid, credited or
assigned to Purchaser;
(d) to the extent assignable, assign to Purchaser, and
Purchaser shall assume, Seller's interest in the Operating Agreements and the
other Intangibles by duly executed assignment and assumption agreement pursuant
to which (i) Seller shall indemnify Purchaser and hold Purchaser harmless from
and against any and all claims pertaining to the Operating Agreements or the
other Intangibles arising prior to Closing and (ii) Purchaser shall indemnify
Seller and hold Seller harmless from and against any and all claims pertaining
to the Operating Agreements or the other Intangibles arising from and after the
Closing;
(e) deliver to Purchaser such Tenant Estoppels (as defined
in Section 5.4(b) hereof) as are in Seller's possession;
(f) join with Purchaser to execute a notice in the form
attached hereto as Schedule 4, which Purchaser shall send to each tenant under
each of the Leases informing such tenant of the sale of the Property and of the
assignment to Purchaser of Seller's interest in, and obligations under, the
Leases (including, if applicable, Purchaser's assumption of Seller's obligations
with respect to any security deposits) and directing that all rent and other
sums payable after the Closing under each such Lease shall be paid as set forth
in the notice;
<PAGE> 10
(g) deliver to Purchaser a certificate the form of which
is attached hereto as Schedule 3, dated as of the date of Closing and executed
on behalf of Seller by a duly authorized officer thereof, stating that the
representations and warranties of Seller contained in this Agreement are true
and correct in all material respects as of the date of Closing (with appropriate
modifications of those representations and warranties made in Section 5.1 hereof
to reflect any changes therein including, without limitation, any changes
resulting from actions under Section 5.4 hereof) or identifying any
representation or warranty which is not, or no longer is, true and correct and
explaining the state of facts giving rise to the change. In no event shall
Seller be liable to Purchaser for, or be deemed to be in default hereunder by
reason of, any breach of representation or warranty which results from any
change that (i) occurs between the Effective Date and the date of Closing and
(ii) is expressly permitted under the terms of this Agreement or is beyond the
reasonable control of Seller to prevent; provided, however, that the occurrence
of a change which is not permitted hereunder or is beyond the reasonable control
of Seller to prevent shall, if materially adverse to Purchaser, constitute the
non-fulfillment of the condition set forth in Section 4.6(b); if, despite
changes or other matters described in such certificate, the Closing occurs,
Seller's representations and warranties set forth in this Agreement shall be
deemed to have been modified by all statements made in such certificate;
(h) deliver to Purchaser such evidence as Purchaser's
counsel and/or the Title Company may reasonably require as to the authority of
the person or persons executing documents on behalf of Seller;
(i) deliver to Purchaser an affidavit in the form attached
hereto as Schedule 6, duly executed by Seller stating that Seller is not a
"foreign person" as defined in the Federal Foreign Investment in Real Property
Tax Act of 1980 and the 1984 Tax Reform Act;
(j) deliver to Purchaser the Leases, Operating Agreements
and licenses and permits, if any, in the possession of Seller or Seller's
agents, together with such leasing and property files and records which are
material in connection with the continued operation, leasing and maintenance of
the Property and together with the items of property identified on Exhibit B
hereto. Purchaser shall cooperate with Seller for a period of seven (7) years
after Closing in case of Seller's need in response to any legal requirement, a
tax audit, tax return preparation or litigation threatened or brought against
Seller, by allowing Seller and its agents or representatives access, upon
reasonable advance notice (which notice shall identify the nature of the
information sought by Seller), at all reasonable times to examine and make
copies of any and all instruments, files and records, which right shall survive
the Closing;
(k) deliver to Purchaser possession and occupancy of the
Property, subject to the Permitted Exceptions; and
(1) deliver such additional documents as shall be
reasonably required to consummate the transaction contemplated by this
Agreement.
<PAGE> 11
4.3 Purchaser's Obligations at Closing. At Closing, Purchaser
shall:
(a) pay to Seller the full amount of the Purchase Price,
as increased or decreased by prorations and adjustments as herein provided, in
immediately available wire transferred funds pursuant to Section 1.5 above, it
being agreed that at Closing the Earnest Money shall be delivered to Seller and
applied towards payment of the Purchase Price;
(b) join Seller in execution of the instruments described
in Sections 4.2(c), 4.2(d), and 4.2(f) above;
(c) deliver to Seller a letter duly executed by Purchaser
in the form attached hereto as Schedule 7, confirming that Purchaser is not
acquiring the Property in whole or part with the assets of an employee benefit
plan (an "Employee Benefit Plan") as defined in Section 3(3) of the Employee
Retirement Income Security Act of 1974, as amended ("ERISA"), and, in the event
Purchaser is unable or unwilling to make such a representation, Purchaser shall
be deemed to be in default hereunder, and Seller shall have the right to
terminate this Agreement and to receive and retain the Earnest Money;
(d) deliver to Seller such evidence as Seller's counsel
and/or the Title Company may reasonably require as to the authority of the
person or persons executing documents on behalf of Purchaser; and
(e) deliver such additional documents as shall be
reasonably required to consummate the transaction contemplated by this
Agreement.
4.4 Credits and Prorations.
(a) The following shall be apportioned with respect to the
Property as of 12:01 a.m., on the day of Closing, as if Purchaser were vested
with title to the Property during the entire day upon which Closing occurs:
(i) rents, if any, as and when collected (the term
"rents" as used in this Agreement includes all payments due and payable by
tenants under the Leases);
(ii) taxes (including personal property taxes on the
Personal Property) and assessments levied against the Property;
(iii) payments under the Operating Agreements;
<PAGE> 12
(iv) gas, electricity and other utility charges for
which Seller is liable, if any, such charges to be apportioned at Closing on the
basis of the most recent meter reading occurring prior to Closing; and
(v) any other operating expenses or other items
pertaining to the Property which are customarily prorated between a purchaser
and a seller in the area in which the Property is located.
(b) Notwithstanding anything contained in the foregoing
provisions:
(i) At Closing, Seller shall, at Seller's option,
either deliver to Purchaser any security deposits actually held by Seller
pursuant to the Leases or credit to the account of Purchaser the amount of such
security deposits (to the extent such security deposits are not applied against
delinquent rents or otherwise as provided in the Leases). All refundable cash or
other deposits posted with utility companies serving the Property shall belong
to Seller and Seller shall be entitled to receive and retain the same directly
from the applicable utility companies.
(ii) Any ad valorem real estate taxes, charges and
assessments paid at or prior to Closing shall be prorated and apportioned
between Seller and Purchaser at Closing on a per diem, and on the basis of the
fiscal year of the authority or other person levying the same. If taxes and
assessments for the current year have not been paid before Closing, Seller shall
be charged at Closing an amount equal to that portion of such taxes and
assessments which relates to the period before Closing and Purchaser shall pay
the taxes and assessments prior to their becoming delinquent. Any such
apportionment made with respect to a tax year for which the tax rate or assessed
valuation, or both, have not yet been fixed shall be based upon the tax rate
and/or assessed valuation last fixed. To the extent that the actual taxes and
assessments for the current year differ from the amount apportioned at Closing,
the parties shall make all necessary adjustments by appropriate payments between
themselves following Closing.
(iii) Charges referred to in Section 4.4(a) above which
are payable by any tenant to a third party shall not be apportioned hereunder,
and Purchaser shall accept title subject to any of such charges unpaid and
Purchaser shall look solely to the tenant responsible therefor for the payment
of the same. If Seller shall have paid any of such charges on behalf of any
tenant, and shall not have been reimbursed therefor by the time of Closing,
Purchaser shall remit to Seller all such charges so paid by Seller upon
Purchaser's receipt thereof from the applicable tenant(s).
(iv) Seller shall receive the entire advantage of any
discounts for the prepayment by it of any taxes, water rates or sewer rents.
Purchaser shall not be responsible for any penalties or interest which accrue on
delinquent taxes or such rents.
<PAGE> 13
(v) As to gas, electricity and other utility charges
referred to in Section 4.4(a)(iv) above, Seller may on notice to Purchaser elect
to pay one or more of all of said items accrued to the date hereinabove fixed
for apportionment directly to the person or entity entitled thereto, and to the
extent Seller so elects, such item shall not be apportioned hereunder, and
Seller's obligation to pay such item directly in such case shall survive the
Closing.
(vi) The Personal Property is included in this sale,
without further charge. Purchaser shall pay to Seller the amount of any and all
sales or similar taxes payable in connection with the Personal Property and
Purchaser shall execute and deliver any tax returns required of it in connection
therewith, said obligations of Purchaser to survive Closing.
(vii) Purchaser shall be responsible for the payment of
(A) all Tenant Inducement Costs (as hereinafter defined) and leasing commissions
which become due and payable (whether before or after Closing) (1) as a result
of any renewals or expansions of existing Leases, approved or deemed approved in
accordance with Section 5.4 hereof, between the Effective Date and the date of
Closing, and (2) under any new Leases, approved or deemed approved in accordance
with Section 5.4 hereof, entered into between the Effective Date and the date of
Closing, and (B) all Tenant Inducement Costs and leasing commissions which
become due and payable from and after the date of Closing. If, as of the date of
Closing, Seller shall have paid any Tenant Inducement Costs or leasing
commissions for which Purchaser is responsible pursuant to the foregoing
provisions, Purchaser shall reimburse Seller therefor at Closing. For purposes
hereof, the term "Tenant Inducement Costs" shall mean any out-of-pocket payments
required under a Lease to be paid by the landlord thereunder to or for the
benefit of the tenant thereunder which is in the nature of a tenant inducement,
including specifically, without limitation, tenant improvement costs, lease
buyout costs, and moving, design, refurbishment and club membership allowances.
The term "Tenant Inducement Costs" shall not include loss of income resulting
from any free rental period, it being agreed that Seller shall bear the loss
resulting from any free rental period until the date of Closing and that
Purchaser shall bear such loss from and after the date of Closing.
(viii) Unpaid and delinquent rent collected by Seller
and Purchaser after the date of Closing shall be delivered as follows: (a) if
Seller collects any unpaid or delinquent rent for the Property, Seller shall,
within fifteen (15) days after the receipt thereof, deliver to Purchaser any
such rent which Purchaser is entitled to hereunder relating to the date of
Closing and any period thereafter, and (b) if Purchaser collects any unpaid or
delinquent rent from the Property, Purchaser shall, within fifteen (15) days
after the receipt thereof, deliver to Seller any such rent which Seller is
entitled to hereunder relating to the period prior to the date of Closing.
Seller and Purchaser agree that (i) all rent received by Seller or Purchaser
within the first thirty (30) day period after the date of Closing shall be
applied first to delinquent rentals, if any, in the order of their maturity, and
then to current rentals, and (ii) all rent received by Seller or Purchaser after
the first thirty (30) day period after the date of Closing shall be applied
first to current rentals and then to delinquent rentals, if any, in inverse
order of maturity. Purchaser will
<PAGE> 14
make a good faith effort after Closing to collect all rents in the usual course
of Purchaser's operation of the Property, but Purchaser will not be obligated to
institute any lawsuit or other collection procedures to collect delinquent
rents. In the event that there shall be any rents or other charges under any
Leases which, although relating to a period prior to Closing, do not become due
and payable until after Closing or are paid prior to Closing but are subject to
adjustment after Closing (such as year end common area expense reimbursements
and the like), then any rents or charges of such type received by Purchaser or
its agents or Seller or its agents subsequent to Closing shall, to the extent
applicable to a period extending through the Closing, be prorated between Seller
and Purchaser as of Closing and Seller's portion thereof shall be remitted
promptly to Seller by Purchaser.
(c) The provisions of this Section 4.4 shall survive
Closing.
4.5 Closing Costs. Seller shall pay (a) the fees of any
counsel representing it in connection with this transaction; (b) one-half (1/2)
of any transfer tax, documentary stamp tax or similar tax which becomes payable
by reason of the transfer of the Property; and (c) one-half (1/2) of any escrow
fee which may be charged by the Escrow Agent or Title Company. Purchaser shall
pay (u) the fees of any counsel representing Purchaser in connection with this
transaction; (v) the fee for the title examination and the Title Commitment and
the premium for the Owner's Policy of Title Insurance to be issued to Purchaser
by the Title Company at Closing; (w) the cost of the Survey; (x) the fees for
recording the deed conveying the Property to Purchaser; (y) one-half (1/2) of
any transfer tax, documentary stamp tax or similar tax which becomes payable by
reason of the transfer of the Property; and (z) one-half (1/2) of any escrow
fees charged by the Escrow Agent or Title Company. All other costs and expenses
incident to this transaction and the closing thereof shall be paid by the party
incurring same.
4.6 Conditions Precedent to Obligation of Purchaser. The
obligation of Purchaser to consummate the transaction hereunder shall be subject
to the fulfillment on or before the date of Closing of all of the following
conditions, any or all of which may be waived by Purchaser in its sole
discretion:
(a) Seller shall have delivered to Purchaser all of the
items required to be delivered to Purchaser pursuant to the terms of this
Agreement, including but not limited to, those provided for in Section 4.2.
(b) All of the representations and warranties of Seller
contained in this Agreement shall be true and correct in all material respects
as of the date of Closing (with appropriate modifications permitted under this
Agreement or not adverse to Purchaser).
(c) Seller shall have performed and observed, in all
material respects, all covenants and agreements of this Agreement to be
performed and observed by Seller as of the date of Closing.
<PAGE> 15
4.7 Conditions Precedent to Obligation of Seller. The
obligation of Seller to consummate the transaction hereunder shall be subject to
the fulfillment on or before the date of Closing of all of the following
conditions, any or all of which may be waived by Seller in its sole discretion:
(a) Seller shall have received the Purchase Price as
adjusted pursuant to and payable in the manner provided for in this Agreement.
(b) Purchaser shall have delivered to Seller all of the
items required to be delivered to Seller pursuant to the terms of this
Agreement, including but not limited to, those provided for in Section 4.3.
(c) All of the representations and warranties of Purchaser
contained in this Agreement shall be true and correct in all material respects
as of the date of Closing.
(d) Purchaser shall have performed and observed, in all
material respects, all covenants and agreements of this Agreement to be
performed and observed by Purchaser as of the date of Closing.
ARTICLE V
REPRESENTATIONS, WARRANTIES AND COVENANTS
5.1 Representations and Warranties of Seller. Seller hereby
makes the following representations and warranties to Purchaser as of the
Effective Date:
(a) Organization and Authority. Seller has been duly
organized and is validly existing under the laws of New York. Seller has the
full right and authority to enter into this Agreement and, subject to the
provisions of Section 10.6 hereof, to transfer all of the Property to be
conveyed by Seller pursuant hereto and to consummate or cause to be consummated
the transactions contemplated herein to be made by Seller. The person signing
this Agreement on behalf of Seller is authorized to do so.
(b) Pending Actions. To Seller's knowledge, there is no
action, suit, arbitration, unsatisfied order or judgment, governmental
investigation or proceeding pending against the Property or the transaction
contemplated by this Agreement, which, if adversely determined, could
individually or in the aggregate have a material adverse effect on title to the
Property or any portion thereof or which could in any material way interfere
with the consummation by Seller of the transaction contemplated by this
Agreement.
<PAGE> 16
(c) Leases. Seller is the lessor or landlord or the
successor lessor or landlord under the Leases. Except as set forth in the Lease
Schedule, to Seller's knowledge, there are no other leases or occupancy
agreements to which Seller is a party affecting the Property. Except as
otherwise set forth in the Leases or on the Lease Schedule, to Seller's
knowledge, no presently effective rent concessions have been given to any
tenants and no rent has been paid in advance by any tenants respecting a period
subsequent to the Closing. Except as may be disclosed on the Lease Schedule, to
Seller's knowledge no tenants have asserted in writing any claims, defenses or
offsets to rent accruing from and after the date of Closing. To Seller's
knowledge, except as set forth in the Lease Schedule, no material default,
delinquency or breach exists on the part of any tenant as of the Effective Date.
There are no material defaults or breaches on the part of the landlord under any
Lease. In the event that any Tenant Estoppel delivered to Purchaser with respect
to any Lease shall contain any statement of fact, information or other matter
which is inconsistent with the matters stated in Seller's representations in
this Section 5.1(c), the Tenant Estoppel shall control and Seller shall have no
liability for any claim based upon a breach of representation regarding such
statement of fact, information or other matter contained in the Tenant Estoppel.
Notwithstanding anything to the contrary contained in this Agreement, Seller
does not represent or warrant that any particular Lease will be in force or
effect at Closing or that the tenants under the Leases will have performed their
obligations thereunder. The termination of any Lease prior to Closing by reason
of the tenant's default shall not affect the obligations of Purchaser under this
Agreement to complete closing in any manner or entitle Purchaser to an abatement
of or credit against the Purchase Price or give rise to any other claim on the
part of Purchaser.
(d) Lease Brokerage. To Seller's knowledge, there are no
lease brokerage agreements, leasing commission agreements or other agreements
providing for payments of any amounts for leasing activities or procuring
tenants with respect to the Property as of the Effective Date which would be
payable subsequent to Closing, other than as disclosed in the Lease Schedule.
(e) No Violations. To Seller's knowledge, Seller has not
received prior to the Effective Date any written notification from any
governmental or public authority (i) that the Property is in violation of any
applicable fire, health, building, use, occupancy or zoning laws where such
violation remains outstanding and, if unaddressed, would have a material adverse
effect on the use of the Property as currently owned and operated or (ii) that
any work is required to be done upon or in connection with the Property, where
such work remains outstanding and, if unaddressed, would have a material adverse
effect on the use of the Property as currently owned and operated.
(f) Taxes and Assessments. True and complete copies of the
most recent real estate tax bills for the Property received by Seller have been
delivered to Purchaser. Except as disclosed to Purchaser, Seller has not filed,
and has not retained anyone to file, notices
<PAGE> 17
of protests against, or to commence action to review, real property tax
assessments against the Property.
(g) Condemnation. To Seller's knowledge, no condemnation
proceedings relating to the Property are pending or threatened.
(h) Insurance. To Seller's knowledge, Seller has not
received any written notice from any insurance company or board of fire
underwriters of any defects or inadequacies in or on the Property or any part or
component thereof that would materially and adversely affect the insurability of
the Property or cause any material increase in the premiums for insurance for
the Property that have not been cured or repaired.
(i) Environmental Matters. Except as set forth in the
environmental report of ATC ASSOCIATES, INC., dated September 16, 1998, a copy
of which has been delivered to Purchaser or as otherwise disclosed to Purchaser,
to Seller's knowledge, Seller has received no written notification that any
governmental or quasi governmental authority has determined that there are any
violations of environmental statutes, ordinances or regulations affecting the
Property. As used herein, "Hazardous Substances" means all hazardous or toxic
materials, pollutants, contaminants or wastes currently identified as hazardous
substance or waste in the Comprehensive Environmental Response, Compensation and
Liability Act of 1980 (commonly known as "CERCLA"), as amended, the Superfund
Amendments and Reauthorization Act (commonly known as "SARA"), the Resource
Conservation and Recovery Act (commonly known as "RCRA"), or any other federal,
state or local legislation or ordinances applicable to the Property. Purchaser
acknowledges and agrees that the environment report discloses the presence of
asbestos in the Improvements, that the Purchase Price reflects the existence of
asbestos, and that Purchaser has no right to terminate this Agreement after the
expiration of the Inspection Period or be entitled to any abatement of the
Purchase Price by reason of the existence of asbestos at the Improvements.
Assuming Closing is completed, Purchaser shall be responsible for any asbestos
abatement which may be required (if any) from and after the Effective Date.
5.2 Knowledge Defined. References to the "knowledge" of Seller
shall refer only to the actual knowledge of the Designated Employees (as
hereinafter defined) of Lend Lease Real Estate Investments, Inc. ("Lend Lease"),
the manager of this asset for Seller, and shall not be construed, by imputation
or otherwise, to refer to the knowledge of Seller, Lend Lease or any affiliate
of either of them, to any property manager, or to any other officer, agent,
manager, representative or employee of Seller or Lend Lease or any affiliate
thereof or to impose upon such Designated Employees any duty to investigate the
matter to which such actual knowledge, or the absence thereof, pertains. As used
herein, the term "Designated Employees" shall refer to Gary Prugh.
5.3 Survival of Seller's Representations and Warranties.
<PAGE> 18
(a) Except as otherwise provided in subsection (b) below,
the representations and warranties of Seller set forth in Section 5.1 as updated
by the certificate of Seller to be delivered to Purchaser at Closing in
accordance with Section 4.2(g) hereof, shall survive Closing for a period from
the date of Closing through March 1, 2000. No claim for a breach of any
representation or warranty of Seller shall be actionable or payable (a) if the
breach in question results from or is based on a condition, state of facts or
other matter which was known to Purchaser prior to Closing, (b) unless the valid
claims for all such breaches collectively aggregate more than One Hundred
Thousand Dollars ($100,000), in which event the full amount of such claims shall
be actionable, and (c) unless written notice containing a description of the
specific nature of such breach shall have been given by Purchaser to Seller
prior to the expiration of March 1, 2000 and an action shall have been commenced
by Purchaser against Seller within thirty (30) days after the termination of the
survival period provided for above in this Section 5.3. Purchaser agrees to
first seek recovery under any insurance policies, service contracts and Leases
prior to seeking recovery from Seller, and Seller shall not be liable to
Purchaser if Purchaser's claim is satisfied from such insurance policies,
service contracts or Leases. As used herein, the term "Cap" shall mean the total
aggregate amount of Five Hundred Thousand Dollars ($500,000). In no event shall
Seller's aggregate liability to Purchaser for breach of any representation or
warranty of Seller in this Agreement, the certificate to be delivered by Seller
at Closing pursuant to Section 4.2(g) hereof and for any other claim, cause of
action, or liability of any kind, arising out of or relating directly or
indirectly to this Agreement (whether in contract, tort or otherwise) exceed the
amount of the Cap.
(b) Notwithstanding any provision to the contrary set
forth in this Agreement, the warranties and representations of Seller set forth
in Sections 5.1(c) with respect to Leases for which a Tenant Estoppel is
delivered pursuant to Section 5.4(b) and in Sections 5.1(e) and (g) above (all
herein called the "Non-Surviving Warranties") shall not survive Closing. If
Purchaser determines that any of the surviving warranties or any of the
Non-Surviving Warranties are breached prior to the Closing, Purchaser's sole
right and remedy shall be to terminate this Agreement by giving to Seller
written notice of such termination within ten (10) days after Purchaser learns
of the breach of such warranty. If Purchaser fails to give such written
termination notice to Seller within such time period, Purchaser shall be deemed
to have waived any right or remedy (including, without limitation, any right
under this Agreement to terminate this Agreement) against Seller by reason of
the breach of such warranty. Purchaser shall, prior to the Closing, make its own
independent investigation and determination as to the truth and accuracy of the
Non-Surviving Warranties. If Purchaser shall complete Closing under this
Agreement, Purchaser shall be deemed to have conclusively determined that the
Non-Surviving Warranties are true and correct, and Purchaser shall be deemed to
have waived any claim against Seller by reason of a breach of any of the
Non-Surviving Warranties.
5.4 Covenants of Seller. Seller hereby covenants with
Purchaser as follows:
<PAGE> 19
(a) From the Effective Date hereof until the Closing or
earlier termination of this Agreement, Seller shall use reasonable efforts to
operate and maintain the Property in a manner generally consistent with the
manner in which Seller has operated and maintained the Property prior to the
date hereof. Purchaser shall accept the Property at the time of Closing in the
same condition as the same are as of the date of this Agreement, as such
condition shall have changed by reason of normal wear and tear. Notwithstanding
that Seller has no obligation to make any repairs or replacements required by
reason of wear and tear, Seller may, at its option, make any such repairs and
replacements prior to the Closing if Seller believes such repairs and
replacements are necessary to comply with its obligations under one or more of
the Leases, or legally required to protect the Property. The reasonable cost of
such repairs and replacements in excess of $7,500 in the aggregate shall be
added to the Purchase Price and shall be payable by Purchaser to Seller at
Closing. Before making such repairs or replacements for which Seller will seek
reimbursement by Purchaser, Seller will give written notice thereof to Purchaser
and provide Purchaser a cost estimate of the work prepared by a reputable
contractor, and Seller will consult with Purchaser on the most economical method
to perform them. If Purchaser procures a reputable contractor to perform such
work at a lower price, Seller will utilize such contractor.
(b) Seller shall use reasonable efforts (but without
obligation to incur any cost or expense) to obtain and deliver to Purchaser
prior to Closing, a written estoppel certificate in the form of Exhibit E
attached hereto and made a part hereof signed by each tenant occupying space in
the Improvements. The signed certificates are referred to herein as the "Tenant
Estoppels". Notwithstanding the foregoing, Purchaser may terminate this
Agreement and have the Earnest Money returned if Seller fails to deliver to
Purchaser by Closing Tenant Estoppels from (i) PNC Bank, N.A.; First Union
National Bank; OnLine; Rosenbluth; Zutz and Tybout ("Major Leases"), and (ii)
such other tenants (if any are necessary) which would constitute, together with
the Major Leases, an aggregate of seventy-five percent (75%) of the currently
leased area of the Improvements. Purchaser agrees not to object to (i) any
non-material (as determined in Purchaser's reasonable judgment) qualifications
or modifications which a tenant may make to the form of Tenant Estoppel and (ii)
any modification to a tenant estoppel to conform the Tenant Estoppel to the form
of tenant estoppel certificate the tenant is required to give under its lease
and (iii) a statement by tenant that it is made to the tenant's knowledge.
Purchaser's obligations under this Agreement to complete Closing and pay the
Purchase Price shall not be relieved if Seller is unable to obtain any Tenant
Estoppel required to be delivered after using its reasonable efforts to obtain
it if Seller instead, at Seller's sole option, executes a Tenant Estoppel for
such tenant other than a Major Lease tenant. If any such tenant does have a
claim which would entitle it to set-off the amount of the claim against rent due
under the lease and the amount of such claim is ascertainable, Seller shall have
the right, at its sole option, to give Purchaser a credit against the cash
portion of the Purchase Price in the amount of the claim; and, in such event,
Purchaser shall complete Closing and take subject to such claim. If Seller has
delivered a Seller Tenant Estoppel to Purchaser for one or more tenants and
within ninety (90) days following Closing, Seller or Purchaser receives a Tenant
Estoppel (reasonably
<PAGE> 20
acceptable to Purchaser) from any such tenant, then the Seller's Tenant Estoppel
for such tenant shall be deemed null and void.
(c) A copy of any renewal or expansion of an existing
Lease or of any new Lease for occupancy of 4,000 square feet or more of space in
the Improvements ("Major Post Agreement Lease") which Seller wishes to execute
between the Effective Date and the date of Closing will be submitted to
Purchaser prior to execution by Seller. Purchaser agrees to notify Seller in
writing within five (5) business days after its receipt thereof of either its
approval or disapproval, including all Tenant Inducement Costs and leasing
commissions to be incurred in connection therewith. In the event Purchaser
informs Seller that Purchaser does not approve the renewal or expansion of the
existing Major Post Agreement Lease or the new Major Post Agreement Lease, which
approval shall not be unreasonably withheld, Seller shall have the option to
cancel this Agreement by written notice thereof to Purchaser within five (5)
business days after Seller's receipt of written notice of Purchaser's
disapproval thereof, and upon refund and payment of the Earnest Money to
Purchaser, neither party shall have any further liability or obligation
hereunder. In the event Purchaser fails to notify Seller in writing of its
approval or disapproval within the five (5) business day time period for such
purpose set forth above, such failure shall be deemed the approval by Purchaser.
At Closing, Purchaser shall reimburse Seller for any Tenant Inducement Costs,
leasing commissions or other expenses, including reasonable legal fees, incurred
by Seller pursuant to a renewal, an expansion or a new Lease approved (or deemed
approved) by Purchaser. Seller shall have the unrestricted right to enter into
new Leases for less than 4,000 square feet of space in the Improvements or renew
existing Leases for less than 4,000 square feet so long as such Leases or
renewals are within the guidelines set forth in Exhibit F attached hereto and
made a part hereof.
5.5 Representations and Warranties of Purchaser. Purchaser
hereby represents and warrants to Seller:
(a) Purchaser is not acquiring the Property with the
assets of an employee benefit plan as defined in Section 3(3) of ERISA.
(b) Purchaser has the full right, power and authority to
purchase the Property as provided in this Agreement and to carry out Purchaser's
obligations hereunder, and all requisite action necessary to authorize Purchaser
to enter into this Agreement and to carry out its obligations hereunder have
been, or by the Closing will have been, taken. The person signing this Agreement
on behalf of Purchaser is authorized to do so.
(c) There is no action, suit, arbitration, unsatisfied
order or judgment, government investigation or proceeding pending against
Purchaser which, if adversely determined, could individually or in the aggregate
materially interfere with the consummation of the transaction contemplated by
this Agreement.
<PAGE> 21
5.6 Survival of Purchaser's Representations and Warranties.
The representation and warranties of Purchaser set forth in Section 5.5(a) shall
survive Closing and shall be a continuing representation and warranty without
limitation. All other representations and warranties of Purchaser shall survive
Closing for a period through March 1, 2000.
5.7 Covenants of Purchaser. Purchaser hereby covenants with
Seller that Purchaser shall, in connection with its investigation of the
Property during the Inspection Period, inspect the Property for the presence of
Hazardous Substances (as defined in Section 5. 1 (i) hereof), and shall furnish
to Seller copies of any reports received by Purchaser in connection with any
such inspection. Purchaser hereby assumes full responsibility for such
inspections and, except for claims based on representations or warranties
contained in Section 5.1(i), irrevocably waives any claim against Seller arising
from the presence of Hazardous Substances on the Property. Purchaser shall also
furnish to Seller copies of any other reports received by Purchaser relating to
any other inspections of the Property conducted on Purchaser's behalf, if any
(including, specifically, without limitation, any reports analyzing compliance
of the Property with the provisions of the Americans with Disabilities Act
("ADA"), 42 U.S.C. ss.12101, et seq., if applicable).
ARTICLE VI
DEFAULT
6.1 Default by Purchaser. In the event that Purchaser fails to
consummate its obligations in this Agreement for any reason other than Seller's
default or the permitted termination of this Agreement by Seller or Purchaser as
herein expressly provided, Seller shall be entitled, as its sole remedy, to
receive and retain the Earnest Money hereunder, whereupon this Agreement shall
terminate and neither Seller nor Purchaser shall have any further obligation or
liability hereunder to the other.
6.2 Default by Seller. In the event that Seller fails to
consummate its obligations in this Agreement for any reason other than
Purchaser's default or the permitted termination of this Agreement by Seller or
Purchaser as herein expressly provided, Purchaser shall be entitled, as its sole
remedy, either (a) to receive the return of the Earnest Money, which return
shall operate to terminate this Agreement and release Seller from any and all
liability hereunder, or (b) to enforce specific performance of Seller's
obligation to execute the documents required to convey the Property to
Purchaser, it being understood and agreed that the remedy of specific
performance shall not be available to enforce any other obligation of Seller
hereunder. Purchaser expressly waives its rights to seek damages in the event of
Seller's default hereunder. Purchaser shall be deemed to have elected to
terminate this Agreement and receive back the Earnest Money if Purchaser fails
to file suit for specific performance against Seller in a court
<PAGE> 22
having jurisdiction in the county and state in which the Property is located, on
or before thirty (30) days following the date upon which Closing was to have
occurred.
ARTICLE VII
RISK OF LOSS
7.1 Minor Damage. In the event of loss or damage to the
Property or any portion thereof which is not "major" (as hereinafter defined),
this Agreement shall remain in full force and effect provided Seller performs
any necessary repairs or, at Seller's option, assigns to Purchaser all of
Seller's right, title and interest to any claims and proceeds Seller may have
with respect to any casualty insurance policies or condemnation awards relating
to the premises in question. In the event that Seller elects to perform repairs
upon the Property, Seller shall use reasonable efforts to complete such repairs
promptly and the date of Closing shall be extended a reasonable time in order to
allow for the completion of such repairs. If Seller elects to assign a casualty
claim to Purchaser, the Purchase Price shall be reduced by an amount equal to
the deductible amount under Seller's insurance policy. Upon Closing, full risk
of loss with respect to the Property shall pass to Purchaser.
7.2 Major Damage. In the event of a "major" loss or damage,
either Seller or Purchaser may terminate this Agreement by written notice to the
other party, in which event the Earnest Money shall be returned to Purchaser. If
neither Seller nor Purchaser elects to terminate this Agreement within ten (10)
days after Seller sends Purchaser written notice of the occurrence of major loss
or damage, then Seller and Purchaser shall be deemed to have elected to proceed
with Closing, in which event Seller shall, at Seller's option, either (a)
perform any necessary repairs, or (b) assign to Purchaser all of Seller's right,
title and interest to any claims and proceeds Seller may have with respect to
any casualty insurance policies or condemnation awards relating to the premises
in question. In the event that Seller elects to perform repairs upon the
Property, Seller shall use reasonable efforts to complete such repairs promptly
and the date of Closing shall be extended a reasonable time in order to allow
for the completion of such repairs. If Seller elects to assign a casualty claim
to Purchaser, the Purchase Price shall be reduced by an amount equal to the
deductible amount under Seller's insurance policy. Upon Closing, full risk of
loss with respect to the Property shall pass to Purchaser.
7.3 Definition of "Major" Loss or Damage. For purposes of
Sections 7.1 and 7.2, "major" loss or damage refers to the following: (i) loss
or damage to the Property or any portion thereof such that the cost of repairing
or restoring the premises in question to a condition substantially identical to
that of the premises in question prior to the event of damage would be, in the
opinion of an architect selected by Seller and reasonably approved by Purchaser,
equal to or greater than Five Hundred Thousand and 00/100 Dollars ($500,000),
and (ii) any loss due to a condemnation which permanently and materially impairs
the current use of the Property. If
<PAGE> 23
Purchaser does not give notice to Seller of Purchaser's reasons for disapproving
an architect within five (5) business days after receipt of notice of the
proposed architect, Purchaser shall be deemed to have approved the architect
selected by Seller.
ARTICLE VIII
COMMISSIONS
8.1 Brokerage Commissions. In the event the transaction
contemplated by this Agreement is consummated, but not otherwise, Seller agrees
to pay to Landauer Associates, Inc. (the "Broker") at Closing a brokerage
commission pursuant to a separate written agreement between Seller and Broker.
Each party agrees that should any claim be made for brokerage commissions or
finder's fees by any broker or finder other than the Broker by, through or on
account of any acts of said party or its representatives, said party will
indemnify and hold the other party free and harmless from and against any and
all loss, liability, cost, damage and expense in connection therewith. The
provisions of this paragraph shall survive Closing or earlier termination of
this Agreement.
ARTICLE IX
DISCLAIMERS AND WAIVERS
9.1 No Reliance on Documents. Except as expressly stated
herein, Seller makes no representation or warranty as to the truth, accuracy or
completeness of any materials, data or information delivered by Seller to
Purchaser in connection with the transaction contemplated hereby. Purchaser
acknowledges and agrees that all materials, data and information delivered by
Seller to Purchaser in connection with the transaction contemplated hereby are
provided to Purchaser as a convenience only and that any reliance on or use of
such materials, data or information by Purchaser shall be at the sole risk of
Purchaser, except as otherwise expressly stated herein. Without limiting the
generality of the foregoing provisions, Purchaser acknowledges and agrees that
(a) any environmental or other report with respect to the Property which is
delivered by Seller to Purchaser shall be for general informational purposes
only, (b) Purchaser shall not have any right to rely on any such report
delivered by Seller to Purchaser, but rather will rely on its own inspections
and investigations of the Property and any reports commissioned by Purchaser
with respect thereto, and (c) neither Seller, any affiliate of Seller nor the
person or entity which prepared any such report delivered by Seller to Purchaser
shall have any liability to Purchaser for any inaccuracy in or omission from any
such report.
9.2 DISCLAIMERS. SELLER AND PURCHASER ACKNOWLEDGE AND AGREE
THAT SELLER ACQUIRED THE PROPERTY THROUGH DEED IN LIEU OF
<PAGE> 24
FORECLOSURE AND CONSEQUENTLY SELLER HAS LITTLE, IF ANY, KNOWLEDGE OF THE
PHYSICAL OR ECONOMIC CHARACTERISTICS OF THE PROPERTY. ACCORDINGLY, EXCEPT AS
EXPRESSLY SET FORTH IN THIS AGREEMENT, IT IS UNDERSTOOD AND AGREED THAT SELLER
IS NOT MAKING AND HAS NOT AT ANY TIME MADE ANY WARRANTIES OR REPRESENTATIONS OF
ANY KIND OR CHARACTER, EXPRESSED OR IMPLIED, WITH RESPECT TO THE PROPERTY,
INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OR REPRESENTATIONS AS TO
HABITABILITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE (OTHER
THAN SELLER'S LIMITED WARRANTY OF TITLE TO BE SET FORTH IN THE DEED), ZONING,
TAX CONSEQUENCES, LATENT OR PATENT PHYSICAL OR ENVIRONMENTAL CONDITION,
UTILITIES, OPERATING HISTORY OR PROJECTIONS, VALUATION, GOVERNMENTAL APPROVALS,
THE COMPLIANCE OF THE PROPERTY WITH GOVERNMENTAL LAWS, THE TRUTH, ACCURACY OR
COMPLETENESS OF THE PROPERTY DOCUMENTS OR ANY OTHER INFORMATION PROVIDED BY OR
ON BEHALF OF SELLER TO PURCHASER, OR ANY OTHER MATTER OR THING REGARDING THE
PROPERTY. PURCHASER ACKNOWLEDGES AND AGREES THAT UPON CLOSING SELLER SHALL SELL
AND CONVEY TO PURCHASER AND PURCHASER SHALL ACCEPT THE PROPERTY "AS IS, WHERE
IS, WITH ALL FAULTS" EXCEPT TO THE EXTENT EXPRESSLY PROVIDED OTHERWISE IN THIS
AGREEMENT. PURCHASER HAS NOT RELIED AND WILL NOT RELY ON, AND SELLER IS NOT
LIABLE FOR OR BOUND BY, ANY EXPRESSED OR IMPLIED WARRANTIES, GUARANTIES,
STATEMENTS, REPRESENTATIONS OR INFORMATION PERTAINING TO THE PROPERTY OR
RELATING THERETO (INCLUDING SPECIFICALLY, WITHOUT LIMITATION, PROPERTY
INFORMATION PACKAGES DISTRIBUTED WITH RESPECT TO THE PROPERTY) MADE OR FURNISHED
BY SELLER, THE MANAGER OF THE PROPERTY, OR ANY REAL ESTATE BROKER OR AGENT
REPRESENTING OR PURPORTING TO REPRESENT SELLER, TO WHOMEVER MADE OR GIVEN,
DIRECTLY OR INDIRECTLY, ORALLY OR IN WRITING, UNLESS SPECIFICALLY SET FORTH IN
THIS AGREEMENT. PURCHASER REPRESENTS TO SELLER THAT PURCHASER HAS CONDUCTED, OR
WILL CONDUCT PRIOR TO CLOSING, SUCH INVESTIGATIONS OF THE PROPERTY, INCLUDING
BUT NOT LIMITED TO, THE PHYSICAL AND ENVIRONMENTAL CONDITIONS THEREOF, AS
PURCHASER DEEMS NECESSARY TO SATISFY ITSELF AS TO THE CONDITION OF THE PROPERTY
AND THE EXISTENCE OR NONEXISTENCE OR CURATIVE ACTION TO BE TAKEN WITH RESPECT TO
ANY HAZARDOUS OR TOXIC SUBSTANCES ON OR DISCHARGED FROM THE PROPERTY, AND WILL
RELY SOLELY UPON SAME AND NOT UPON ANY INFORMATION PROVIDED BY OR ON BEHALF OF
SELLER OR ITS AGENTS OR EMPLOYEES WITH RESPECT THERETO, OTHER THAN SUCH
REPRESENTATIONS, WARRANTIES AND COVENANTS OF SELLER AS ARE EXPRESSLY SET FORTH
IN THIS AGREEMENT. UPON CLOSING, PURCHASER SHALL ASSUME THE RISK THAT ADVERSE
MATTERS, INCLUDING BUT NOT LIMITED TO, CONSTRUCTION DEFECTS AND ADVERSE PHYSICAL
AND ENVIRONMENTAL
<PAGE> 25
CONDITIONS, MAY NOT HAVE BEEN REVEALED BY PURCHASER'S INVESTIGATIONS, AND
PURCHASER, UPON CLOSING, SHALL BE DEEMED TO HAVE WAIVED, RELINQUISHED AND
RELEASED SELLER (AND SELLER'S OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES AND
AGENTS) FROM AND AGAINST ANY AND ALL CLAIMS, DEMANDS, CAUSES OF ACTION
(INCLUDING CAUSES OF ACTION IN TORT), LOSSES, DAMAGES, LIABILITIES, COSTS AND
EXPENSES (INCLUDING ATTORNEYS' FEES AND COURT COSTS) OF ANY AND EVERY KIND OR
CHARACTER, KNOWN OR UNKNOWN, WHICH PURCHASER MIGHT HAVE ASSERTED OR ALLEGED
AGAINST SELLER (AND SELLER'S OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES AND
AGENTS) AT ANY TIME BY REASON OF OR ARISING OUT OF ANY LATENT OR PATENT
CONSTRUCTION DEFECTS OR PHYSICAL CONDITIONS, VIOLATIONS OF ANY APPLICABLE LAWS
(INCLUDING, WITHOUT LIMITATION, ANY ENVIRONMENTAL LAWS) AND ANY AND ALL OTHER
ACTS, OMISSIONS, EVENTS, CIRCUMSTANCES OR MATTERS REGARDING THE PROPERTY.
PURCHASER AGREES THAT SHOULD ANY CLEANUP, REMEDIATION OR REMOVAL OF HAZARDOUS
SUBSTANCES OR OTHER ENVIRONMENTAL CONDITIONS ON THE PROPERTY BE REQUIRED AFTER
THE DATE OF CLOSING, SUCH CLEANUP, REMOVAL OR REMEDIATION SHALL BE THE
RESPONSIBILITY OF AND SHALL BE PERFORMED AT THE SOLE COST AND EXPENSE OF
PURCHASER.
9.3 Effect and Survival of Disclaimers. Seller and Purchaser
acknowledge that the compensation to be paid to Seller for the Property has been
decreased to take into account that the Property is being sold subject to the
provisions of this Article IX. Seller and Purchaser agree that the provisions of
this Article IX shall survive Closing.
9.4 Representation by Counsel. Purchaser acknowledges that
Purchaser has been represented by independent legal counsel of Purchaser's
selection and Purchaser is granting the release set forth in Section 9.2 of its
own violation and after consultation with Purchaser's counsel.
<PAGE> 26
ARTICLE X
MISCELLANEOUS
10.1 Confidentiality. Purchaser and Seller and their
representatives shall hold in strictest confidence through the date Closing is
completed all data and information obtained from the transaction with respect to
Seller and Purchaser or its business, whether obtained before or after the
execution and delivery of this Agreement, and shall not disclose the same to
others; provided, however, that it is understood and agreed that Purchaser may
disclose such data and information to its present or prospective investors,
partners and lenders, as applicable, and either party may disclose such data and
information to the employees, consultants, accountants and attorneys of such
party and those of Purchaser's investors, partners and lenders, provided that
Purchaser and Seller, as applicable, instructs such persons to treat such data
and information confidentially. In the event this Agreement is terminated or
Purchaser fails to perform hereunder, Purchaser shall promptly return to Seller
any statements, documents, schedules, exhibits or other written information
obtained from Seller in connection with this Agreement or the transaction
contemplated herein. It is understood and agreed that, with respect to any
provision of this Agreement which refers to the termination of this Agreement
and the return of the Earnest Money to Purchaser, such Earnest Money shall not
be returned to Purchaser unless and until Purchaser has fulfilled its
obligations to return to Seller the materials described in the preceding
sentence. In the event of a breach of threatened breach by a party hereto or its
agents or representatives of this Section 10.1, the other party shall be
entitled to an injunction restraining the breaching party or its agents or
representatives from disclosing, in whole or in party, such confidential
information. Nothing herein shall be construed as prohibiting the other party
from pursuing any other available remedy at law or in equity for such breach of
threatened breach. The provisions of this Section 10.1 shall survive Closing.
10.2 Public Disclosure. Prior to Closing, any release to the
public of information with respect to the sale contemplated herein or any
matters set forth in this Agreement will be made only in the form approved by
Purchaser and Seller and their respective counsel.
10.3 Discharge of Obligations. The acceptance of the Deed by
Purchaser shall be deemed to be a full performance and discharge of every
representation and warranty made by Seller herein and every agreement and
obligation on the part of Seller to be performed pursuant to the provisions of
this Agreement, except those which are herein specifically stated to survive
Closing.
10.4 Assignment. Purchaser may not assign its rights under
this Agreement to anyone other than a Permitted Assignee (as hereinafter
defined) without first obtaining Seller's written approval which may be given or
withheld in Seller's sole discretion. Subject to the
<PAGE> 27
conditions set forth in this Section 10.4, Purchaser may assign its rights under
this Agreement to a Permitted Assignee without the prior written consent of
Seller. In the event that Purchaser desires to assign its rights under this
Agreement to a Permitted Assignee, Purchaser shall send written notice to seller
at least five (5) business days prior to the effective date of such assignment
stating the name and, if applicable, the constituent persons or entities of the
Permitted Assignee. Such assignment shall not become effective until such
Permitted Assignee executes an instrument reasonably satisfactory to Seller in
form and substance whereby the Permitted Assignee expressly assumes each of the
obligations of Purchaser under this Agreement, including specifically, without
limitation, all obligations concerning the Earnest Money. No assignment shall
release or otherwise relieve Purchaser from any obligations hereunder. For
purposes of this Section 10.4 the term "Permitted Assignee" shall mean any
limited or general partnership, corporation, limited liability company or other
entity (a) in which The Rubenstein Company, L.P., directly or indirectly through
one or more intermediaries, shall have a majority beneficial equity interest and
(b) in which The Rubenstein Company, L.P., directly or indirectly through one or
more intermediaries, shall have effective management control. Notwithstanding
anything to the contrary contained herein, Purchaser shall not have the right to
assign this Agreement to any assignee which, in the reasonable judgment of
Seller, will cause the transaction contemplated hereby or any party thereto to
violate the requirement of ERISA. In order to enable Seller to make such
determination, Purchaser shall cause to be delivered to Seller such information
as is requested by Seller with respect to a proposed assignee and the
constituent persons or entities of any proposed assignee, including
specifically, without limitation, any pension or profit-sharing plans related
thereto.
10.5 Notices. Any notice pursuant to this Agreement shall be
given in writing by (a) personal delivery, or (b) reputable overnight delivery
service with proof of delivery, or (c) United States Mail, postage prepaid,
registered or certified mail, return receipt requested, or (d) legible facsimile
transmission sent to the intended addressee at the address set forth below, or
to such other address or to the attention of such other person as the addressee
shall have designated by written notice sent in accordance herewith, and shall
be deemed to have been given either at the time of personal delivery, or, in the
case of expedited delivery service or mail, as of the date of first attempted
delivery at the address and in the manner provided herein, or, in the case of
facsimile transmission, as of the date of the facsimile transmission provided
that an original of such facsimile is also sent to the intended addressee by
means described in clauses (a), (b) or (c) above. Unless changed in accordance
with the preceding sentence, the addresses for notices given pursuant to this
Agreement shall be as follows:
If to Seller:
The Equitable Life Assurance Society of the United States
1290 Avenue of the Americas
New York, NY 10104
Attention: Law Department - Real Estate
<PAGE> 28
Telecopy: 212-707-7977
with a copies to:
Lend Lease Real Estate Investments, Inc.
Monarch Tower
3424 Peachtree Road, N.E.
Suite 800
Atlanta, GA 30326
Attention: Bruce Polifka
Telecopy: 404-848-8902
Lend Lease Real Estate Investments, Inc.
1735 Market Street - Suite 4200
Mellon Bank Center
Philadelphia, PA 19103
Attention: Asset Manager
Telecopy: 215-977-8396
AND
Wolf, Block, Schorr and Solis-Cohen LLP
12th Floor Packard Building
Philadelphia, PA 19102
Attention: James S. Burns
Telecopy: 215-977-2346
If to Purchaser:
The Rubenstein Company, L.P.
4100 One Commerce Square
2005 Market Street
Philadelphia, Pennsylvania 19103-7041
Attention: Gabriel W. Spector
Telecopy: 215-563-4110
with a copy to:
The Rubenstein Company, L.P.
4100 One Commerce Square
2005 Market Street
Philadelphia, Pennsylvania 19103-7041
<PAGE> 29
Attention: Frank J. Ferro
Telecopy: 215-563-4110
10.6 Binding Effect. This Agreement shall not be binding in
any way upon Seller unless and until (a) Seller shall execute and deliver the
same to Purchaser, (b) each stage of Seller's investment approval process has
approved this transaction, and (c) Seller's Investment Committee has thereafter
given its written approval thereof. If Seller has not given Purchaser written
notice (the "Approval Notice") of such approvals on or before May 21, 1999 (the
"Approval Deadline"), or if prior to the Approval Deadline Seller notifies
Purchaser in writing that this Agreement has been disapproved by the persons or
entities referred to in clauses (b) or (c) of the preceding sentence, then this
Agreement shall be deemed terminated and Purchaser shall be entitled to the
return of the Earnest Money. It is understood and agreed that at each stage of
Seller's investment approval process, Seller or its investment advisor, Lend
Lease, shall each have the right, in its unfettered discretion, to disapprove
the transaction contemplated by this Agreement for any reason whatsoever,
without obligation thereafter to proceed to the next stage of Seller's
investment approval process. Seller's approval of this Agreement shall be
evidenced only by both Seller's execution of this Agreement and Seller's sending
of the Approval Notice to Purchaser prior to the Approval Deadline and,
accordingly, Purchaser acknowledges and agrees that Purchaser cannot and will
not rely upon any other statement or action of Seller or its representatives as
evidence of Seller's approval of this Agreement or the subject matter hereof.
10.7 Modifications. This Agreement cannot be changed orally,
and no executory agreement shall be effective to waive, change, modify or
discharge it in whole or in part unless such executory agreement is in writing
and is signed by the parties against whom enforcement of any waiver, change,
modification or discharge is sought.
10.8 Tenant Notification Letters. Purchaser shall deliver to
each and every tenant of the Property under a Lease thereof a signed statement
acknowledging Purchaser's receipt and responsibility for each tenant's security
deposit (to the extent delivered by Seller to Purchaser at Closing), if any, all
in compliance with and pursuant to the applicable provisions of applicable law.
The provisions of this paragraph shall survive Closing.
10.9 Calculation of Time Periods. Unless otherwise specified,
in computing any period of time described in this Agreement, the day of the act
or event after which the designated period of time begins to run is not to be
included and the last day of the period so computed is to be included, unless
such last day is a Saturday, Sunday or legal holiday under the laws of the State
in which the Property is located, in which event the period shall run until the
end of the next day which is neither a Saturday, Sunday or legal holiday. The
final day of any such period shall be deemed to end at 5 p.m., local time.
10.10 Successors and Assigns. The terms and provisions of this
Agreement are to apply to and bind the permitted successors and assigns of the
parties hereto.
<PAGE> 30
10.11 Entire Agreement. This Agreement, including the
Exhibits, contains the entire agreement between the parties pertaining to the
subject matter hereof and fully supersedes all prior written or oral agreements
and understandings between the parties pertaining to such subject matter.
10.12 Further Assurances. Each party agrees that it will
without further consideration execute and deliver such other documents and take
such other action, whether prior or subsequent to Closing, as may be reasonably
requested by the other party to consummate more effectively the purposes or
subject matter of this Agreement. Without limiting the generality of the
foregoing, Purchaser shall, if requested by Seller, execute acknowledgments of
receipt with respect to any materials delivered by Seller to Purchaser with
respect to the Property. The provisions of this Section 10. 12 shall survive
Closing.
10.13 Counterparts. This Agreement may be executed in
counterparts, and all such executed counterparts shall constitute the same
agreement. It shall be necessary to account for only one such counterpart in
proving this Agreement.
10.14 Severability. If any provision of this Agreement is
determined by a court of competent jurisdiction to be invalid or unenforceable,
the remainder of this Agreement shall nonetheless remain in full force and
effect.
10.15 Applicable Law. This Agreement is performable in the
state in which the Property is located and shall in all respects be governed by,
and construed in accordance with, the substantive federal laws of the United
States and the laws of such state. Seller and Purchaser hereby irrevocably
submit to the jurisdiction of any state or federal court sitting in the state in
which the Property is located in any action or proceeding arising out of or
relating to this Agreement and hereby irrevocably agree that all claims in
respect of such action or proceeding shall be heard and determined in a state or
federal court sitting in the state in which the Property is located. Purchaser
and Seller agree that the provisions of this section 10. 15 shall survive the
Closing of the transaction contemplated by this Agreement.
10.16 No Third Party Beneficiary. The provisions of this
Agreement and of the documents to be executed and delivered at Closing are and
will be for the benefit of Seller and Purchaser only and are not for the benefit
of any third party, and accordingly, no third party shall have the right to
enforce the provisions of this Agreement or of the documents to be executed and
delivered at Closing.
10.17 Exhibits and Schedules. The following schedules or
exhibits attached hereto shall be deemed to be an integral part of this
Agreement:
(a) Exhibit A Legal Description of the Land
<PAGE> 31
(b) Exhibit B Personal Property
(c) Exhibit C Lease Schedule
(d) Exhibit D Operating Agreements Schedule
(e) Exhibit E Tenant Estoppel Form
(f) Exhibit F Leasing Guidelines
(g) Schedule 1 Special Warranty Deed
(h) Schedule 2 Bill of Sale and Assignment
(i) Schedule 3 Assignment and Assumption
(j) Schedule 4 Tenant Notification Letter
(k) Schedule 5 Seller's Certification of
Representations and Warranties
(l) Schedule 6 FIRPTA Affidavit
(m) Schedule 7 ERISA Statement
(n) Schedule 3.1 Due Diligence Materials
10.18 Captions. The section headings appearing in this
Agreement are for convenience of reference only and are not intended, to any
extent and for any purpose, to limit or define the text of any section or any
subsection hereof.
10.19 Construction. The parties acknowledge that the parties
and their counsel have reviewed and revised this Agreement and that the normal
rule of construction to the effect that any ambiguities are to be resolved
against the drafting party shall not be employed in the interpretation of this
Agreement or any exhibits or amendments hereto.
10.20 Termination of Agreement. It is understood and agreed
that if either Purchaser or Seller terminates this Agreement pursuant to a right
of termination granted hereunder, such termination shall operate to relieve
Seller and Purchaser from all obligations under this Agreement, except for such
obligations as are specifically stated herein to survive the termination of this
Agreement.
10.21 Survival. The provisions of this Article 10 and of the
following Sections of this Agreement shall survive Closing or any termination of
this Agreement prior thereto and shall not be merged into the execution and
delivery of the Deed: 3.1; 4.2(j); 4.4; 5.3; 5.6; 8.1, 9.3, 10.1, 10.8, 10.12
and 10.15 The foregoing is in addition to and not in exclusion of any survival
provisions elsewhere set forth in this Agreement.
10.22 No Recordation. Neither this Agreement nor any
memorandum of the terms hereof shall be recorded or otherwise placed of public
record and any breach of this covenant shall, unless the party not placing same
of record is otherwise in default hereunder, entitle the party not placing same
of record to pursue its rights and remedies under Article VI.
<PAGE> 32
10.23 Limited Liability. The obligations of Seller arising by
virtue of this Agreement shall be limited to the interest of Seller in the
Property and resort shall not be held to any other assets of Seller.
10.24 Waiver of Tender of Deed and Purchase Monies. The tender
of an executed Deed by Seller and the tender by Purchaser of the portion of the
Purchase Price payable at Closing are hereby mutually waived except as otherwise
provided in Sections 4.2 and 4.3; provided, however, nothing herein contained
shall be construed as a waiver of Seller's obligation to deliver the Deed and/or
of the concurrent obligation of Purchaser to pay the Purchase Price payable at
closing.
10.25 Section 1031 Exchange of Properties. Purchaser has
advised Seller, and Seller acknowledges, that Purchaser may enter into one or
more separate Exchange Agreements with a qualified "Intermediary" in order to
effect Purchaser's acquisition of the Property as so-called "Replacement
Property" in a like-kind exchange transaction in accordance with the provisions
of Section 1031 of the Internal Revenue Code of 1986, as amended, and the
Regulations promulgated thereunder. In furtherance of the foregoing: (a)
Purchaser will have the right to assign all or a portion of its right, title and
interest in and to this Agreement to the selected Intermediary (but Purchaser
will remain obligated for all of its agreements and other undertakings
hereunder), and (b) at the request of Purchaser from time to time, Seller will,
at Purchaser's expense, cooperate with Purchaser and with the selected
Intermediary (but without any liability to the selected Intermediary) in order
to effect the intended like-kind exchange contemplated by the foregoing;
provided that: (i) Purchaser will, and hereby does, indemnify Seller for all
costs and expenses incurred by Seller in connection with effectuating such
like-kind exchange and any claim asserted by the selected Intermediary against
Seller, (ii) Seller will not be obligated to take title to any other property
(including any so-called "Replacement Property"), nor will the foregoing affect
in any manner Purchaser's obligations or Seller's rights and benefits under this
Agreement, (iii) Seller is not responsible if such transfer does not meet the
requirements for a tax-free exchange and (iv) it is expressly understood that
the consummation by Purchaser or ability by Purchaser to consummate a like-kind
exchange as aforesaid is not a condition precedent to Purchaser's obligation
to consummate Closing under this Agreement within the time set forth in
Section 4.1.
<PAGE> 33
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the Effective Date.
SELLER:
EML ASSOCIATES, a New York general
partnership
By: ML/EQ REAL ESTATE PORTFOLIO, LP,
its Managing Venturer
By: EREIM MANAGERS CORP., its
General Partner
By:___________________________
Name:
Title:
PURCHASER:
THE RUBENSTEIN COMPANY, L.P.
a Delaware limited partnership
By: TRC Realty, Inc.-GP
a Pennsylvania corporation,
its managing general partner
By:______________________________
Frank J. Ferro
Executive Vice President
<PAGE> 34
Exhibit A
LEGAL DESCRIPTION
<PAGE> 35
Exhibit B
PERSONAL PROPERTY
<PAGE> 36
Exhibit C
LEASE SCHEDULE
<PAGE> 37
Exhibit D
OPERATING AGREEMENTS SCHEDULE
<PAGE> 38
Exhibit E
TENANT ESTOPPEL FORM
[*SUBJECT TO PURCHASER REVISIONS]
_________________________ , 1999
[PURCHASER]
Re: Lease dated _______________________, 199__ (the "Lease") executed between
______________________________________________ ("Landlord"), and ("Tenant"), for
those premises located at
Gentlemen:
The undersigned Tenant understands that you or your assigns
intend to acquire that property located at _______________________ (the
"Property") from EML Associates ("Seller"). The undersigned Tenant does hereby
certify to you as follows:
A. The Lease consists only of the documents identified in
Items 1 and 2 on Schedule A attached hereto ("Schedule
A").
B. The Lease is in full force and effect and has not been
modified, supplemented, or amended as indicated in Item
2 on Schedule A.
C. Tenant has not given Landlord written notice of any
dispute between Landlord and Tenant or that Tenant
considers Landlord in default under the Lease.
D. Tenant does not claim any offsets or credits against
rents payable under the Lease.
E. Tenant has not paid a security or other deposit with
respect to the Lease, except as shown on Item 3 of
Schedule A.
F. Tenant has fully paid rent on account of the month of
_________, 199__; the current base rent under the Lease
is shown on Item 4 of Schedule A.
G. Tenant has not paid any rentals in advance except for
the current month of ____________, 199__.
H. The term of the Lease will terminate on the date
indicated in Item 4 on Schedule A.
<PAGE> 39
I. Except as shown in Item 6 on Schedule A, Tenant has no
options to renew or extend the term of the Lease right
of first refusal or option to purchase the Property or
any part thereof.
This certificate may be relied upon by you, your mortgagee and
Seller in completing the sale of the Property.
Very truly yours,
By:
Title:
<PAGE> 40
Schedule A
1. Lease:
Landlord:
Tenant: ____________________
Suite #: ____________________
Date: ____________________
2. Modifications and/or Amendments
(a) Date: ____________________
(b) Date: ____________________
(c) Date: ____________________
3. Security Deposit
(currently held by
Landlord) $____________________
4. Monthly Base Rent
for current term
of Lease $____________________
5. Commencement Date: ____________________
Termination Date ____________________
6. Right of First refusal to Lease to Purchase
or option ___________ _____________
(if none, state "None")
If "yes", does such right or option still exist or has such right or
option been exercised or waived?
Still Exists_____ Exercised______ Waived______
<PAGE> 41
EXHIBIT F
LEASING GUIDELINES
1. $16.00 per rentable square foot, increasing by not less than $0.50
per rentable square foot each lease year, with -0- months of free rent for a
five year lease and a tenant allowance of $25.00 per rentable square foot (for
new Leases) or $5.00 per rentable square foot (for extensions or renewals of
existing Leases).
2. A term not exceeding five (5) years.
3. Form of lease to be materially the same as Seller's standard
lease form.
<PAGE> 42
PARCEL NO:
-------------
-------------
SCHEDULE 1
SPECIAL WARRANTY DEED
STATE OF GEORGIA :
: SS.
COUNTY OF FULTON :
KNOW ALL MEN BY THESE PRESENTS:
THAT EML ASSOCIATES a New York general partnership (hereinafter
referred to as "Grantor"), for and in consideration of the sum of Eight Million
Seven Hundred Fifty Thousand Dollars ($8,750,000) and other good and valuable
consideration to it in hand paid by _____________________, a Delaware
________________ (hereinafter referred to as "Grantee"), whose mailing address
is 4100 Commerce Square, 2005 Market Street, Philadelphia, PA 19103, the receipt
and sufficiency of which consideration are hereby acknowledged, and upon and
subject to the exceptions, liens, encumbrances, terms and provisions hereinafter
set forth and described, has GRANTED, BARGAINED, SOLD and CONVEYED, and by these
presents does hereby GRANT, BARGAIN, SELL and CONVEY, unto Grantee all of the
real property situated in Wilmington, New Castle County, Delaware, described on
Exhibit A attached hereto and made a part hereof for all purposes, together with
all and singular the rights, benefits, privileges, easements, tenements,
hereditaments and appurtenances thereon or in any wise appertaining thereto, and
together with all improvements located thereon and any right, title and interest
of Grantor in and to adjacent streets, alleys and rights-of-way (said land,
rights, benefits, privileges, easements, tenements, hereditaments,
appurtenances, improvements and interests being hereinafter referred to as the
"Property").
This conveyance is made subject and subordinate to those agreements,
easements, restrictions, encumbrances and other exceptions to title (the
"Permitted Exceptions") of public record including those set forth on Exhibit B
attached hereto and made a part hereof for all purposes.
TO HAVE AND TO HOLD the Property, subject to the Permitted Exceptions,
as aforesaid, unto Grantee, its successors and assigns, forever; and Grantor
does hereby bind itself and its successors, to WARRANT AND FOREVER DEFEND all
and singular the Property unto Grantee, its successors and assigns, against
every person whomsoever lawfully claiming or to claim the same, or any part
thereof, by, through or under Grantor, but not otherwise.
<PAGE> 43
By acceptance of this Special Warranty Deed, Grantee assumes payment of
all real property taxes on the Property for the year 1999 and subsequent years.
IN WITNESS WHEREOF, this Special Warranty Deed has been executed by
Grantor to be effective as of the _____ day of July, 1999.
EML ASSOCIATES, a New York general
partnership
By: ML/EQ REAL ESTATE PORTFOLIO, LP,
its Managing Venturer
By: EREIM MANAGERS CORP., its
General Partner
By:___________________________
Name:
Title:
<PAGE> 44
STATE OF GEORGIA :
: SS.
COUNTY OF FULTON :
On the _____ day of July , 1999, before me, the subscriber, a Notary Public
in and for the State and County aforesaid, personally appeared ________________,
who acknowledge himself/herself to be a _______________ of EREIM Managers Corp.,
the general partner of ML/EQ Real Estate Portfolio, LP, which is the managing
venturer of EML Associates, a New York general partnership, and that he/she
being authorized to do so executed the foregoing instrument on behalf of such
general partnership for the purposes therein contained and desired that it may
be recorded.
WITNESS my hand and seal the day and year aforesaid.
______________________________
Notary Public
My Commission Expires:
<PAGE> 45
EXHIBIT A
LEGAL DESCRIPTION
<PAGE> 46
EXHIBIT B
PERMITTED EXCEPTIONS
To Be Determined Prior to end of Title Exam Deadline
Pursuant to Section 2.3
<PAGE> 47
SCHEDULE 2
BILL OF SALE AND ASSIGNMENT
THAT this BILL OF SALE AND ASSIGNMENT (this "Bill of Sale") is made
from EML ASSOCIATES, a New York general partnership ("Assignor") to
___________________, a Delaware __________________ ("Assignee").
RECITALS
A. Concurrently with the execution and delivery of this Bill of Sale,
Assignor is conveying to Assignee, by Special Warranty Deed (the "Deed") that
certain tract of land (the "Land") more particularly described on Exhibit A
attached hereto and made a part hereof for all purposes, together with the
improvements located thereon (the "Improvements").
B. Assignor desires to assign, transfer and convey to Assignee, and
Assignee desires to obtain the Assigned Properties (as hereafter defined),
subject to the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the receipt of Ten and No/100
Dollars ($10.00) and other good and valuable consideration in hand paid by
Assignee to Assignor, the receipt and sufficiency of which are hereby
acknowledged by Assignor, Assignor does hereby ASSIGN, TRANSFER, SET OVER, and
DELIVER to Assignee the following (collectively, the "Assigned Properties"):
(a) The personal property owned by Assignor upon the Land or
within the Improvements, including specifically, without limitation, the
personal property listed on Exhibit B hereto and the heating, ventilation and
air conditioning systems and equipment, appliances, furniture, carpeting,
draperies and curtains, tools and supplies, and other items of personal property
(excluding cash and excluding personal property owned by tenants) used in
connection with the operation of the Land and the Improvements (collectively,
the "Personal Property"); and
(b) All of Assignor's right, title and interest in and to all
assignable warranties and guaranties (express or implied) issued in connection
with the Improvements or the Personal Property (collectively, the "Warranties");
provided, however, that Assignor makes no representation or warranty with
respect to the existence, availability or assignability of any Warranties.
ASSIGNOR MAKES NO WARRANTY OF MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE IN RESPECT OF THE PERSONAL PROPERTY, AND THE SAME IS SOLD IN
"AS IS, WHERE IS" CONDITION, WITH ALL FAULTS. BY EXECUTION OF THIS BILL OF SALE,
ASSIGNEE AFFIRMS THAT IT HAS NOT RELIED
<PAGE> 48
ON ASSIGNOR'S SKILL OR JUDGMENT TO SELECT OR FURNISH THE PERSONAL PROPERTY FOR
ANY PARTICULAR PURPOSE, AND THAT ASSIGNOR MAKES NO WARRANTY THAT THE PERSONAL
PROPERTY IS FIT FOR ANY PARTICULAR PURPOSE, AND THAT THE PERSONAL PROPERTY IS
BEING SOLD TO ASSIGNEE WITHOUT REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS,
IMPLIED OR STATUTORY.
This Bill of Sale is made by Assignor and accepted by Assignee subject
to the "Permitted Exceptions" described in the Deed, to the extent that same are
validly existing and affect the Assigned Properties.
TO HAVE AND TO HOLD the Assigned Properties unto Assignee, its
successors and assigns, forever, and Assignor does hereby bind itself and its
successors to WARRANT AND FOREVER DEFEND, all and singular, title to the
Assigned Properties unto Assignee, its successors and assigns, against every
person whomsoever lawfully claiming or to claim the same, or any part thereof
by, through or under Assignor, but not otherwise, subject to the Permitted
Exceptions described in the Deed.
EXECUTED to be effective as of the _________ day of July, 1999.
ASSIGNOR:
EML ASSOCIATES, a New York general
partnership
By: ML/EQ REAL ESTATE PORTFOLIO, LP,
its Managing Venturer
By: EREIM MANAGERS CORP., its
General Partner
By:_________________________
Name:
Title:
ASSIGNEE:
_________________________________
a Delaware ______________________
By:__________________________
Name:
Title:
<PAGE> 49
SCHEDULE 3
ASSIGNMENT AND ASSUMPTION OF CONTRACTS
This ASSIGNMENT AND ASSUMPTION OF CONTRACTS (this "Assignment") is made
by and between EML ASSOCIATES, a New York general partnership ("Assignor") and
___________________________, a Delaware _____________ ("Assignee").
RECITALS
A. Concurrently with the execution and delivery of this Assignment,
Assignor is conveying to Assignee by Special Warranty Deed (the "Deed") that
certain tract of land (the "Land") more specifically described in Exhibit A
attached hereto and made a part hereof for all purposes, together with the
improvements located thereon (the "Improvements") and the personal property
owned by Assignor upon the Land or within the Improvements (the "Personal
Property").
B. Assignor desires to assign, transfer and convey to Assignee, and
Assignee desires to obtain, all of Assignor's right, title and interest in and
to the Contracts (as hereinafter defined), subject to the terms and conditions
set forth herein.
NOW, THEREFORE, for and in consideration of the sum of Ten and No/100
Dollars ($10.00) and other good and valuable consideration to Assignor in hand
paid by Assignee, the receipt and sufficiency of which are hereby acknowledged,
Assignor does hereby SELL, ASSIGN, CONVEY, TRANSFER, SET-OVER and DELIVER unto
Assignee all of Assignor's right, title and interest in and to the following
(collectively, the "Contracts").
(a) all or written agreements pursuant to which any portion of
the Land or Improvements is used or occupied by anyone other than Assignor
(collectively, the "Leases"), such Leases being more particularly described in
Exhibit B attached hereto and made a part hereof; provided, however, that
Assignor reserves and retains for itself all claims and causes of action
accruing to Assignor with respect to the Leases prior to the effective date
hereof to the extent set forth in the Purchase and Sale Agreement dated as of
April 19, 1999 ("Purchase and Sale Agreement"); and
(b) the contracts and agreements set forth on Exhibit C
attached hereto and made a part hereof relating to the upkeep, repair,
maintenance or operation of the Land, Improvements or Personal Property,
(collectively, the "Operating Agreements"); provided, however, that Assignor
makes no representation or warranty with respect to the assignability of any of
the Operating Agreements.
<PAGE> 50
This Assignment is made by Assignor and accepted by Assignee subject to
the "Permitted Exceptions" described in the Deed, to the extent that same are
validly existing and affect the Contracts.
By execution of this Assignment, Assignee assumes and agrees to perform
all of the covenants, agreements and obligations under the Contracts binding on
Assignor or the Land, Improvements, or Personal Property (such covenants,
agreements and obligations being herein collectively referred to as the
"Contractual Obligations"), as such Contractual Obligations shall arise or
accrue from and after the date of this Assignment. Without limiting the
generality of the preceding sentence, Assignee acknowledges the receipt of all
security deposits described in the Leases and agrees to apply same in accordance
with the terms of the Leases. Assignee hereby agrees to indemnify, hold harmless
and defend Assignor from and against any and all third party obligations,
liabilities, costs and claims (including reasonable attorney's fees) arising as
a result of or with respect to any of the Contractual Obligations that are
attributable to the period of time from and after the date of this Assignment
except as otherwise provided in the Purchase and Sale Agreement.
Assignor agrees to indemnify, hold harmless and defend Assignee from
and against any and all third party obligations, liabilities, costs and claims
(including reasonable attorney's fees) arising as a result of or with respect to
any of the Contractual Obligations that are attributable to the period of time
prior to the date of this Assignment except as otherwise provided in the
Purchase and Sale Agreement between Assignor and Assignee.
ASSIGNEE ACKNOWLEDGES THAT IT HAS INSPECTED THE CONTRACTS AND THAT THIS
ASSIGNMENT IS MADE BY ASSIGNOR AND ACCEPTED BY ASSIGNEE WITHOUT REPRESENTATION
OR WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, AND WITHOUT RECOURSE
AGAINST ASSIGNOR, EXCEPT AS EXPRESSLY SET FORTH HEREIN OR IN THE PURCHASE AND
SALE AGREEMENT.
Assignee agrees not to grant any extension or renewal of any of the
Contracts, but shall, instead, provide for any extensions or renewals by means
of new leases or new agreements which will contain no reference to Seller.
TO HAVE AND TO HOLD all and singular the Contracts unto Assignee, its
successors and assigns, and Assignor does hereby bind itself and its successors
to WARRANT AND FOREVER defend all and singular the Contracts unto Assignee, its
successors and assigns, against every person whomsoever lawfully claiming or
attempting to claim the same, or any part thereof, by, through or under
Assignor, but not otherwise, subject to the Permitted Exceptions described in
the Deed.
<PAGE> 51
EXECUTED to be effective as of the __ day of July, 1999.
ASSIGNOR:
EML ASSOCIATES, a New York general
partnership
By: ML/EQ REAL ESTATE PORTFOLIO, LP,
its Managing Venturer
By: EREIM MANAGERS CORP., its
General Partner
By:_________________________
Name:
Title:
<PAGE> 52
EXHIBIT A
Legal Description
<PAGE> 53
EXHIBIT B
List of Leases
<PAGE> 54
EXHIBIT C
List of Assumed Operating Agreements
<PAGE> 55
SCHEDULE 4
TENANT NOTIFICATION LETTER
July, 1999
Tenants of 300 Delaware Avenue
Wilmington, DE
Re: Sale of 300 Delaware Avenue
Gentlepersons:
Please be advised that __________________________
("Purchaser") has purchased the captioned property, in which you occupy space as
a tenant. In connection with such purchase, EML Associates ("EML") has assigned
its interest as landlord under your lease to Purchaser and has transferred your
security deposit, if any (the "Security Deposit"), to Purchaser. Purchaser
specifically acknowledges the receipt of and responsibility for the Security
Deposit, the intent of Purchaser and EML being to relieve EML of any liability
for the return of the Security Deposit.
All rental and other payments that become due subsequent to
the date hereof should be payable to Purchaser and should be addressed as
follows:
___________________________________
___________________________________
___________________________________
<PAGE> 56
In addition, all notices from you to the landlord concerning any matter
relating to your tenancy should be sent to Purchaser at:
_____________________________________________________.
Very truly yours,
______________________, a Delaware
__________________
By:_______________________________
Name:
Title:
EML ASSOCIATES, a New York general
partnership
By: ML/EQ REAL ESTATE PORTFOLIO, LP,its
Managing Venturer
By: EREIM MANAGERS CORP.,
its General Partner
By:___________________________
Name:
Title:
<PAGE> 57
SCHEDULE 5
SELLER'S CERTIFICATION OF REPRESENTATIONS AND WARRANTIES
The undersigned, on behalf of EML ASSOCIATES, a New York
general partnership ("Seller") hereby certifies to
______________________________, a Delaware ___________________ ("Purchaser"), in
connection with the sale of certain property located in Wilmington, New Castle
County, Delaware and the improvements thereon, and commonly known as 300
Delaware Avenue, pursuant to the Purchase and Sale Agreement between Seller and
Purchaser dated as of April __, 1999 ("Agreement of Sale"), that the:
1. The representations and warranties of Seller set forth in
Section 5.1 of the Agreement of Sale remain true and correct as of the date
hereof, except to the extent that Exhibit C has been modified by the updated
rent roll delivered to Purchaser on the date hereof.
IN WITNESS WHEREOF, the undersigned has executed this
certification on behalf of Seller as of this ____ day of July, 1999.
EML ASSOCIATES, a New York general partnership
By: ML/EQ REAL ESTATE PORTFOLIO, LP,
its Managing Venturer
By: EREIM MANAGERS CORP.,
its General Partner
By:________________________________
Name:
Title:
<PAGE> 58
SCHEDULE 6
FIRPTA AFFIDAVIT
STATE OF GEORGIA :
: SS.
COUNTY OF FULTON :
KNOW ALL MEN BY THESE PRESENTS:
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 Rubenstein Company, L.P., a Delaware limited partnership
("Transferee"), that withholding of tax is not required upon the disposition of
a U.S. real property interest by EML Associates ("Transferor"), the undersigned
hereby certifies as follows:
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: #58-1739531;
3. Transferor's office address is 1290 AVENUE OF THE AMERICAS, NEW
YORK, NEW YORK 10019.
Transferor understands that this certification 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, the undersigned, in the capacity set forth
below, hereby declares that he has examined this certification and to the best
of his knowledge and belief it is true, correct, and complete, and the
undersigned further declares that he has authority to sign this document in such
capacity.
<PAGE> 59
EXECUTED effective as of the ____ day of July, 1999.
EML ASSOCIATES, a New York general partnership
By: ML/EQ REAL ESTATE PORTFOLIO, LP,
its Managing Venturer
By: EREIM MANAGERS CORP., its
General Partner
By:___________________________
Name:
Title:
SWORN TO AND SUBSCRIBED BEFORE ME this ____ day of July, 1999.
Notary Public in and for the
State of Georgia
[Printed or Typed Name of Notary]
My Commission Expires:
<PAGE> 60
SCHEDULE 7
ERISA STATEMENT
July, 1999
EML Associates
1290 Avenue of the Americas
New York, New York 10019
Re: 300 Delaware Avenue, Wilmington, DE
Gentlemen:
In connection with the sale by EML Associates of the above
captioned property (the "Property"), more particularly described on Exhibit A
attached hereto to ________________, a Delaware _______________, the undersigned
hereby represents and certifies that it is not acquiring the Property with the
assets of an employee benefit plan as defined in Section 3(3) of the Employee
Retirement Income Security Act of 1974 as amended.
Very truly yours,
_____________________________,
a Delaware ____________________
By: ______________________________
Name:
Title:
<PAGE> 61
EXHIBIT A
Legal Description
<PAGE> 62
FIRST AMENDMENT TO PURCHASE AND SALE AGREEMENT
THIS FIRST AMENDMENT TO PURCHASE AND SALE AGREEMENT (the "Agreement")
is made this 4th day of June, 1999, by and between EML ASSOCIATES, a New York
general partnership ( "Seller" ), having an office at 1290 Avenue of the
Americas, New York, New York 10104, and THE RUBENSTEIN COMPANY, L.P., a Delaware
limited partnership ("Purchaser"), having an office at 4100 One Commerce Square,
2005 Market Street, Philadelphia, Pennsylvania 19103-7041.
WITNESSETH:
Purchaser and Sell entered into the Purchase and Sale Agreement dated
as April 21, 1999 for that certain property located at 300 Delaware Avenue,
Wilmington, New Castle County, Delaware and the buildings and improvements
thereon ("Agreement of Purchase and Sale").
Purchaser and Seller wish to amend the Agreement of Purchase and Sale
as follows:
1. The second sentence of Section 2.3(b) of the Agreement of Purchase
and Sale is revised to delete the reference to "within ten (10) days after
receipt of Purchaser's notice of objections" and to substitute in its place "by
June 9, 1999".
2. The first sentence of Section 3.1 of the Agreement of Purchase and
Sale is revised to delete the reference to June 4, 1999 and substitute in its
place "June 9, 1999".
3. Nothing contained in this First Amendment to Purchase and Sale
Agreement shall be construed to extend any other date or time period set forth
in the Purchase and Sale Agreement.
4. Except as expressly amended hereby, the Purchase and Sale
Agreement shall remain in full force and effect.
<PAGE> 63
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the day and year first above written.
SELLER:
EML ASSOCIATES, a New York general
partnership
By: ML/EQ REAL ESTATE PORTFOLIO, LP,
its Managing Venturer
By: EREIM MANAGERS CORP.,
its General Partner
By:_________________________________
Name:
Title:
PURCHASER:
THE RUBENSTEIN COMPANY, L.P.
a Delaware limited partnership
By: TRC Realty, Inc.-GP
a Pennsylvania corporation,
its managing general partner
By:__________________________________
Frank J. Ferro
Executive Vice President
<PAGE> 64
SECOND AMENDMENT TO PURCHASE AND SALE AGREEMENT
THIS SECOND AMENDMENT TO PURCHASE AND SALE AGREEMENT (the "Agreement")
is made this 9th day of June, 1999, by and between EML ASSOCIATES, a New York
general partnership ( "Seller" ), having an office at 1290 Avenue of the
Americas, New York, New York 10104, and THE RUBENSTEIN COMPANY, L.P., a Delaware
limited partnership ("Purchaser"), having an office at 4100 One Commerce Square,
2005 Market Street, Philadelphia, Pennsylvania 19103-7041.
WITNESSETH:
Purchaser and Sell entered into the Purchase and Sale Agreement dated
as April 21, 1999 for that certain property located at 300 Delaware Avenue,
Wilmington, New Castle County, Delaware and the buildings and improvements
thereon as amended by First Amendment to Purchase and Sale Agreement dated June
4, 1999 ("Agreement of Purchase and Sale").
Purchaser and Seller wish to amend the Agreement of Purchase and Sale
as follows:
1. Purchaser acknowledges and confirms that it has not elected to
terminate the Purchase Agreement as the result of its investigation of the
property pursuant to Sections 3.1 and 3.2 of the Agreement of Purchase and Sale.
2. Seller and Purchaser mutually agree that the Closing Date shall be
July 27, 1999 rather than July 22, 1999, and paragraph 4.1 of the Agreement of
Purchase and Sale is accordingly amended.
3. Except as expressly amended hereby, the Purchase and Sale
Agreement shall remain in full force and effect.
<PAGE> 65
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the day and year first above written.
SELLER:
EML ASSOCIATES, a New York general
partnership
By: ML/EQ REAL ESTATE PORTFOLIO, LP,
its Managing Venturer
By: EREIM MANAGERS CORP.,
its General Partner
By:_________________________________
Name:
Title:
PURCHASER:
THE RUBENSTEIN COMPANY, L.P.
a Delaware limited partnership
By: TRC Realty, Inc.-GP
a Pennsylvania corporation,
its managing general partner
By:_________________________________
Frank J. Ferro
Executive Vice President
<PAGE> 1
Exhibit 10(b)
16-18 SENTRY PARKWAY WEST
BLUE BELL, PA
PURCHASE AND SALE AGREEMENT
BETWEEN
EML ASSOCIATES
a New York general partnership
AS SELLER
AND
INCOME AND GROWTH FUND II, INC.
a Delaware Corporation
AS PURCHASER
As of August 20, 1999
<PAGE> 2
PURCHASE AND SALE AGREEMENT
THIS PURCHASE AND SALE AGREEMENT (the "Agreement") is made as of the
20th day of August, 1999 (the "Effective Date"), by and between EML ASSOCIATES,
a New York general partnership ( "Seller" ), having a business office at 1290
Avenue of the Americas, New York, New York 10104, and INCOME AND GROWTH FUND II,
INC., a Delaware corporation ("Purchaser"), having an office at c/o LaSalle
Investment Management Inc., 200 E. Randolph Drive, Chicago, Illinois 60601.
WITNESSETH:
ARTICLE I
PURCHASE AND SALE
1.1 Agreement of Purchase and Sale. Subject to the terms and conditions
hereinafter set forth, Seller agrees to sell and convey and Purchaser agrees to
purchase the following:
(a) that certain tract or parcel of land situated in Montgomery
County, Pennsylvania, more particularly described on Exhibit A attached hereto
and made a part hereof, together with all and singular the rights and
appurtenances pertaining to such property, including any right, title and
interest of Seller in and to adjacent streets, alleys or rights-of-way (the
property described in clause (a) of this Section 1. 1 being herein referred to
collectively as the "Land");
(b) the buildings, structures, fixtures and other improvements on
the Land, including specifically, without limitation, those certain two (2)
office buildings located thereon commonly referred to as 16-18 Sentry Parkway
West, Blue Bell, Pennsylvania (the property described in clause (b) of this
Section 1.1 being herein referred to collectively as the "Improvements");
(c) all of Seller's right, title and interest in and to all
tangible personal property upon the Land or within the Improvements, including
specifically, without limitation, appliances, furniture, carpeting, draperies
and curtains, tools and supplies, and other items of personal property
(excluding cash) used exclusively in connection with the operation of the Land
and the Improvements and only as specifically described on Exhibit B attached
hereto and made a part hereof (the property described in clause (c) of this
Section 1.1 being herein referred to collectively as the "Personal Property");
(d) all of Seller's right, title and interest in and to all
agreements listed and described on Exhibit C (the "Lease Schedule") attached
hereto and made a part hereof, pursuant to which any portion of the Land or
Improvements is used or occupied by anyone other than
<PAGE> 3
Seller (the property described in clause (d) of this Section 1.1 being herein
referred to collectively as the "Leases"); and
(e) all of Seller's right, title and interest in and to (i) all
assignable contracts and agreements (collectively, the "Operating Agreements")
listed and described on Exhibit D (the "Operating Agreements Schedule") attached
hereto and made a part hereof, relating to the upkeep, repair, maintenance or
operation of the Land, Improvements or Personal Property which will extend
beyond the date of Closing (as such term is defined in Section 4.1 hereof),
including specifically, without limitation, all assignable equipment leases
listed in Exhibit D, and (ii) all assignable existing warranties and guaranties
(expressed or implied) issued to Seller in connection with the Improvements or
the Personal Property, the use of the name 16 and 18 Sentry Parkway West but
without representation as to whether Seller has any rights in such name, and the
hard copies of books and records relating to the operation of the Improvements
(the property described in this Section 1.1(e) being sometimes herein referred
to collectively as the "Intangibles").
1.2 Property Defined. The Land, the Improvements, the Personal
Property, the Leases and the Intangibles are hereinafter sometimes referred to
collectively as the "Property."
1.3. Permitted Exceptions. The Property shall be conveyed subject to
the matters which are, or are deemed to be, Permitted Exceptions pursuant to
Article II hereof (herein referred to collectively as the "Permitted
Exceptions").
1.4 Purchase Price. Seller is to sell and Purchaser is to purchase the
Property for a total of TWENTY-NINE MILLION FIFTY THOUSAND DOLLARS ($29,050,000)
(the "Purchase Price").
1.5 Payment of Purchase Price. The Purchase Price, as increased or
decreased by prorations and adjustments as herein provided, shall be payable in
full at Closing in cash by wire transfer of immediately available federal funds
through a title company escrow to a bank account designated by Seller in writing
to Purchaser prior to the Closing.
1.6 Earnest Money. Unless Purchaser elects to terminate this Agreement
on or before August 24, 1999 pursuant to Section 3.2 of this Agreement, on or
before August 26, 1999 Purchaser shall deposit with First American Title
Insurance Company (the "Escrow Agent"), having its office at Two Penn Center,
Suite 1910, Philadelphia, Pennsylvania 19102, Attention David Feldman, the sum
of Five Hundred Thousand Dollars ($500,000) (the "Earnest Money") in good funds,
either by certified bank or cashier's check or by federal wire transfer. The
Escrow Agent shall hold the Earnest Money in an interest-bearing account in
accordance with the terms and conditions of an escrow agreement entered into
among Seller, Purchaser and Escrow Agent simultaneously with the execution of
this Agreement. All interest accruing on such sum shall
2
<PAGE> 4
become a part of the Earnest Money and shall be distributed as Earnest Money in
accordance with the terms of this Agreement. Time is of the essence with respect
to delivery of the Earnest Money. If Purchaser fails to timely deliver the
Earnest Money, Purchaser shall be in default under this Agreement.
1.7 Independent Contract Consideration. In addition to the Earnest
Money, Purchaser shall, concurrently with its execution hereof, deliver to
Seller a check in the amount of ONE HUNDRED AND NO/100 DOLLARS ($100.00), which
amount Seller and Purchaser agree has been bargained for as consideration for
Seller's execution and delivery of this Agreement and Purchaser's right to
inspect the Property pursuant to Article III. Such sum is in addition to and
independent of any other consideration or payment provided for in this Agreement
and is nonrefundable in all events.
ARTICLE II
TITLE AND SURVEY
2.1 Title Examination, Commitment for Title insurance. Seller has
obtained and delivered at Purchaser's expense, to Purchaser and the surveyor
preparing the Survey, from a nationally recognized titled insurance company (the
"Title Company"), an ALTA title insurance commitment (the "Title Commitment")
covering the Property and a copy of each document referenced in the Title
Commitment as an exception to title the Property. Purchaser shall have until
August 30, 1999 (the "Title Exam Deadline"), to review the Zoning compliance of
the Property, the Survey and the Title Commitment and at Closing, at Purchaser's
expense, obtain from the Title Company an Owner's Policy of Title Insurance in
the full amount of the Purchase Price pursuant to Section 2.4 hereof. Purchaser
acknowledges that its zoning counsel has raised an issue whether the height of
the buildings exceed the maximum height permitted by zoning. Purchaser agrees
that it will acquire the property subject to the possibility of such height
violation without abatement of the Purchase Price and without any claim against
Seller arising therefrom.
2.2 Survey. Seller has obtained and delivered to Purchaser and the
Title Company, at the Purchaser's expense, from a surveyor or surveying firm
licensed by the state in which the Property is located, a survey of the Property
meeting the minimum ALTA standards (the "Survey") reflecting the total area of
the Property, the location of all improvements, recorded easements and
encroachments, if any, located thereon and other matters of record with respect
thereto.
3
<PAGE> 5
2.3 Title Objections: Cure of Title Objections.
(a) Purchaser shall have until the Title Exam Deadline to notify
Seller in writing of such objections as Purchaser may have to any exceptions to
title disclosed in the Title Commitment or the Survey. Any item contained in the
Title Commitment or matter shown on the Survey to which Purchaser does not
object prior to the Title Exam Deadline by timely written notice shall be deemed
a Permitted Exception. Time is of the essence with respect to the provisions of
this Section 2.3. Purchaser hereby confirms that Purchaser has examined the
Title Commitment and has no objection to matters listed on Schedule B-II (other
than removal of exception 1 of Schedule B-II) except any objections that may
arise therefrom when Purchaser reviews the title exceptions against an updated
Survey which Purchaser has ordered.
(b) In the event Purchaser shall notify Seller of objections to
title or matter of survey shown on the Survey prior to the Title Exam Deadline,
Seller shall have the right, but not the obligation, to cure such objections;
provided, however that Seller shall remove any mortgages or monetary liens of a
fixed and ascertainable amount voluntarily created by Seller. Within ten (10)
days after receipt of Purchaser's notice of objections, Seller shall notify
Purchaser in writing whether Seller elects to attempt to cure such objections
which Seller is not obligated to cure hereunder. If Seller elects to attempt to
cure, and provided that Purchaser shall not have terminated this Agreement in
accordance with Section 3.2 hereof, Seller shall have until the date of Closing
to attempt to remove, satisfy or cure the same and for this purpose Seller shall
be entitled to a reasonable adjournment of the Closing if additional time is
required, but in no event shall the adjournment exceed fifteen (15) business
days after the date for Closing set forth in Section 4.1 hereof. If Seller
elects not to cure any objections specified in Purchaser's notice, or if Seller
is unable to effect a cure prior to the Closing (or any date to which the
Closing has been adjourned), Purchaser shall have the following options: (i) to
accept a conveyance of the Property subject to the Permitted Exceptions,
specifically including any matter objected to by Purchaser which Seller is
unwilling or unable to cure, and without reduction of the Purchase Price; or
(ii) to terminate this Agreement by sending written notice thereof to Seller,
and upon delivery of such notice of termination, this Agreement shall terminate
and the Earnest Money shall be returned to Purchaser as Purchaser's sole remedy;
and thereafter neither party hereto shall have any further rights, obligations
or liabilities hereunder except to the extent that any right, obligation or
liability set forth herein expressly survives termination of this Agreement. If
Seller notices Purchaser that Seller does not intend to attempt to cure any
title objection which Seller is not obligated to cure hereunder, or if, having
commenced attempts to cure any objection, Seller later notifies Purchaser that
Seller will be unable to effect a cure thereof, Purchaser shall, within five (5)
days after such notice has been given, notify Seller in writing whether
Purchaser shall elect to accept the conveyance under clause (i) or to terminate
this Agreement under clause (ii). If Purchaser fails to give timely notice of
its election to terminate this Agreement, Purchaser shall be deemed to have
elected to terminate this Agreement.
4
<PAGE> 6
2.4 Conveyance of Title. At Closing, Seller shall convey and transfer
to Purchaser such title to the Property as will enable the Title Company to
issue to Purchaser, at Purchaser's expense, an ALTA 1992 Owner's Policy of Title
Insurance (the "Title Policy") covering the Property insuring Purchaser as the
fee simple owner of the Land, subject to the Permitted Exceptions, in the full
amount of the Purchase Price, provided, however, Purchaser agrees to accept
title to the Property subject to judgments and unsettled taxes against Seller
provided the Title Company insures Purchaser free of such judgments and
unsettled taxes but only up to $1,500,000. The Title Policy shall contain such
customary endorsements as the Title Company has unconditionally and irrevocably
committed to issue during the Inspection Period and for which Purchaser has
provided Seller written evidence of the Title Company's commitment prior to the
end of the Inspection Period. Notwithstanding anything contained herein to the
contrary, the Property shall be conveyed subject to the following matters, which
shall be deemed to be Permitted Exceptions:
(a) the rights of tenants, as tenants only, under the Leases and
any new Leases entered into between the Effective Date and Closing and, where
required, approved by Purchaser in accordance with the terms of this Agreement;
(b) the lien of all ad valorem real estate taxes and assessments
not yet due and payable as of the date of Closing, subject to adjustment as
herein provided;
(c) local, state and federal laws, ordinances or governmental
regulations, including but not limited to, building and zoning laws, ordinances
and regulations, now or, to the extent to general application, hereafter in
effect relating to the Property;
(d) items appearing of record or shown on the Survey and, in either
case, not objected to by Purchaser or waived or deemed to be waived by Purchaser
in accordance with Sections 2.3 or 2.5 hereof; and
(e) any and all assessments becoming liens subsequent to the date
hereof not to exceed $100,000, and in addition if at the date hereof the
Property or any part thereof shall be or shall have been affected by any
assessment or assessments which are payable in installments or may be paid in
installments without penalty (other than interest), Seller shall pay all such
installments due and payable prior to Closing. Purchaser shall pay all such
installments which shall become due and payable or which may be paid without
penalty (other than interest) after Closing, except that any installment
relating to the current fiscal year (with any interest thereon) shall be
apportioned between the parties at Closing.
2.5 Pre-Closing "Gap" Title Defects. Whether or not Purchaser shall
have furnished to Seller any notice of title objections pursuant to the
foregoing provisions of this Agreement,
5
<PAGE> 7
Purchaser may, at or prior to Closing, notify Seller in writing of any
objections to title first raised by the Title Company or the Surveyor between
(a) the date which is the earlier of (i) the effective date of Purchaser's Title
Commitment referred to above or (ii) the expiration of the Inspection Period,
and (b) the date on which the transaction contemplated herein is scheduled to
close and which were not created by Purchaser. With respect to any objections to
title set forth in such notice which would, in Purchaser's reasonable judgment,
adversely affect the fair market value of the Property or an owner's ability to
operate the Property as an office building, Seller shall have the same option to
cure and Purchaser shall have the same option to accept title subject to such
matters or to terminate this Agreement as those which apply to any notice of
objections made by Purchaser before the expiration of the Inspection Period. If
Seller elects to attempt to cure any such matters, the date for Closing shall be
automatically extended by a reasonable additional time to effect such a cure,
but in no event shall the extension exceed thirty (30) days after the date for
Closing set forth in Section 4.1 hereof.
6
<PAGE> 8
ARTICLE III
INSPECTION PERIOD
3.1 Right of Inspection. During the period beginning upon the Effective
Date and ending at 5:00 p.m. (local time at the Property) on August 24, 1999
(hereinafter referred to as the "Inspection Period"), Purchaser shall have the
right to make a physical inspection of the Property and to examine at such place
or places at the Property, in the offices of the property manager or elsewhere
as the same may be located, any operating files maintained by Seller or its
property manager in connection with the leasing, current maintenance and/or
management of the Property, including, without limitation, the Leases, lease
files, Operating Agreements, insurance policies, bills, invoices, receipts and
other general records relating to the income and expenses of the Property,
correspondence, surveys, plans and specifications, warranties for services and
materials provided to the Property, engineering studies, environmental audits
and similar materials, but excluding materials not directly related to the
leasing, current maintenance and/or management of the Property such as, without
limitation, Seller's internal memoranda, financial projections, budgets,
appraisals, accounting and tax records and similar proprietary, elective or
confidential information. Purchaser understands and agrees that any on-site
inspections of the Property shall be conducted upon at least twenty-four (24)
hours' prior written notice to Seller and in the presence of Seller or its
representative. Such physical inspection shall not unreasonably interfere with
the use of the Property by Seller or its tenants nor shall Purchaser's
inspection damage the Property in any respect. Such physical inspection shall
not be invasive in any respect (unless Purchaser obtains Seller's prior written
consent), and in any event shall be conducted in accordance with standards
customarily employed in the industry and in compliance with all governmental
laws, rules and regulations. Following each entry by Purchaser with respect to
inspections and/or tests on the Property, Purchaser shall restore the Property
to a condition which is as near to its original condition as existed prior to
any such inspections and/or tests. Seller shall cooperate with Purchaser in its
due diligence but shall not be obligated to incur any liability or expense in
connection therewith. Purchaser shall not contact any tenants of the Property
without obtaining Seller's prior written consent and shall not disrupt Seller's
or Seller's tenants' activities on the Property. Purchaser agrees to indemnify
against and hold Seller harmless from any claim for liabilities, costs, expenses
(including reasonable attorneys' fees actually incurred) damages or injuries
arising out of or resulting from the inspection of the Property by Purchaser or
its agents, and notwithstanding anything to the contrary in this Agreement, such
obligation to indemnify and hold harmless Seller shall survive Closing or any
termination of this Agreement. All inspections shall occur at reasonable times
agreed upon by Seller and Purchaser. Purchaser acknowledges that Purchaser
commenced its due diligence review prior to the date of this Agreement, and that
August 24, 1999 is a reasonable expiration date for the Inspection Period.
3.2 Right of Termination. Seller agrees that in the event Purchaser
determines (such determination to be made in Purchaser's sole discretion) that
the Property is not suitable for its
7
<PAGE> 9
purposes, Purchaser shall have the right to terminate this Agreement by giving
written notice thereof to Seller prior to the expiration of the Inspection
Period. If Purchaser gives such notice of termination within the Inspection
Period, this Agreement shall terminate. Time is of the essence with respect to
the provisions of this Section 3.2. If Purchaser fails to give Seller a notice
of termination prior to the expiration of the Inspection Period, Purchaser shall
no longer have any right to terminate this Agreement under this Section 3.2 and
(subject to the provisions of Section 2.5) shall be bound to proceed to Closing
and consummate the transaction contemplated hereby pursuant to the terms of this
Agreement.
3.3 No Liens Permitted. Nothing contained in this Agreement shall be
deemed or construed in any way as constituting the consent or request of Seller,
express or implied by inference or otherwise, to any party for the performance
of any labor or the furnishing of any materials to the Property or any part
thereof, nor as giving Purchaser any right, power or authority to contract for
or permit the rendering of any services or the furnishing of any materials that
would give rise to the filing of any liens against the Property or any part
thereof. Prior to permitting any party to enter the Property prior to closing
for the purpose of performing any services or supplying any materials for which
such party could claim a mechanic's lien against the Property or any part
thereof, Purchaser shall cause to be filed in the applicable public filing
office, a waiver of mechanic's liens in form satisfactory to Seller by each of
the parties performing such work.
3.4 Materials. During the Inspection Period Seller shall make available
to Purchaser at the management office of the Property the following:
(i) Copies of plans and specifications and engineering and
environmental reports for the Property, to the extent currently in Seller's
possession.
(ii) Except for the items specifically excluded pursuant to
Section 3.1, the current books and records customarily prepared by or at
Seller's request with respect to the Property, including, without limitation, to
the extent so prepared, all ledgers, records of income, expense, capital
expenditures, utility bills and the most recent property tax bill, and
statements of income and expenses for 1997, 1998 and 1999 to date.
(iii) Copies of all management, service, maintenance and other
contracts currently in force with respect to the Property.
(iv) Copies of all Leases and other occupancy agreements
currently in force with respect to the Property.
(v) Copies of all operating permits and certificates of
occupancy issued with respect to the Property to the extent currently in
Seller's possession.
8
<PAGE> 10
(vi) Copies of all lease brokerage agreements, leasing
commission agreements or other agreements providing for payments of any amounts
for leasing activities or procuring tenants with respect to the Property which
have not been previously paid in full (including any future renewal or expansion
options contained in the Leases).
ARTICLE IV
CLOSING
4.1 Time and Place.
(a) The consummation of the transaction contemplated hereby
("Closing") shall be held at the offices of Wolf, Block, Schorr and Solis-Cohen
LLP at 1650 Arch Street, 22nd Floor, Philadelphia, Pennsylvania 19103 at 10:00
a.m. or, if the parties so agree, through an escrow with the Title Company, on
September 30, 1999 or at such earlier date as Seller and Purchaser may mutually
agree upon in writing. At Closing, Seller and Purchaser shall perform the
obligations set forth in, respectively, Section 4.2 and Section 4.3, the
performance of which obligations shall be concurrent conditions.
(b) Purchaser can extend the Closing date until up to October 28,
1999 by giving Seller written notice thereof ("Extension Notice") on or before
September 24, 1999 and by depositing $500,000, which shall become part of the
Earnest Money, with Escrow Agent on the same date as the date of the Extension
Notice as an additional deposit.
(c) Time is of the essence with respect to the Extension Notice,
the delivery of $500,000 additional deposit and the date of Closing. The
Extension Notice shall set forth the new Closing date which shall be no later
than October 28, 1999, and shall confirm that Purchaser has either (i) approved
all Tenant Estoppels (hereinafter defined) Purchaser has received prior to the
date of the Extension Notice or (ii) waived any deficiency in such Tenant
Estoppels.
4.2 Seller's Obligations at Closing. At Closing, Seller shall:
(a) deliver to Purchaser a duly executed special warranty deed (the
"Deed") in the form attached hereto as Schedule 4.2(a), conveying the Land and
Improvements, subject only to the Permitted Exceptions; the warranty of title in
the Deed will be only as to claims made by, through or under Seller and not
otherwise;
(b) deliver to Purchaser a duly executed bill of sale in the form
attached hereto as Schedule 4.2(b) conveying the Personal Property;
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(c) assign to Purchaser, and Purchaser shall assume, the
landlord/lessor interest in and to the Leases by duly executed assignment and
assumption agreement in the form attached hereto as Schedule 4.2(c);
(d) to the extent assignable, assign to Purchaser, and Purchaser
shall assume, Seller's interest in the Operating Agreements and the other
Intangibles by duly executed assignment and assumption agreement in the form
attached hereto as Schedule 4.2(d);
(e) deliver to Purchaser such Tenant Estoppels (as defined in
Section 5.4(b) hereof) as are in Seller's possession;
(f) join with Purchaser to execute a notice in the form attached
hereto as Schedule 4.2(f) which Purchaser shall send to each tenant under each
of the Leases informing such tenant of the sale of the Property;
(g) deliver to Purchaser a certificate, dated as of the date of
Closing and executed on behalf of Seller by a duly authorized officer thereof,
stating that the representations and warranties of Seller contained in this
Agreement are true and correct in all material respects as of the date of
Closing (with appropriate modifications of those representations and warranties
made in Section 5.1 hereof to reflect any changes therein including, without
limitation, any changes resulting from actions under Section 5.4 hereof and
violation notices received after the Effective Date or identifying any
representation or warranty which is not, or no longer is, true and correct and
explaining the state of facts giving rise to the change. In no event shall
Seller be liable to Purchaser for, or be deemed to be in default hereunder by
reason of, any breach of representation or warranty which results from any
change that (i) occurs between the Effective Date and the date of Closing and
(ii) is expressly permitted under the terms of this Agreement or is beyond the
reasonable control of Seller to prevent; provided, however, that the occurrence
of a change which is not permitted hereunder or is beyond the reasonable control
of Seller to prevent shall, if materially adverse to Purchaser (as reasonably
determined by Purchaser), constitute the non-fulfillment of the condition set
forth in Section 4.6(b); if, despite changes or other matters described in such
certificate, the Closing occurs, Seller's representations and warranties set
forth in this Agreement shall be deemed to have been modified by all statements
made in such certificate.
(h) deliver to Purchaser such evidence as Purchaser's counsel
and/or the Title Company may reasonably require as to the authority of the
person or persons executing documents on behalf of Seller;
(i) deliver to Purchaser an affidavit duly executed by Seller
stating that Seller is not a "foreign person" as defined in the Federal Foreign
Investment in Real Property Tax Act of 1980 and the 1984 Tax Reform Act in the
form attached hereto as Schedule 4.2(i);
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(j) deliver to Purchaser the Leases, Operating Agreements and
licenses and permits, if any, in the possession of Seller or Seller's agents,
together with such leasing and property files and records which are material in
connection with the continued operation, leasing and maintenance of the
Property. So long as Purchaser continues to own the Property, Purchaser shall
cooperate with Seller for a period of seven (7) years after Closing in case of
Seller's need in response to any legal requirement, a tax audit, tax return
preparation or litigation threatened or brought against Seller, by allowing
Seller and its agents or representatives access, upon reasonable advance notice
(which notice shall identify the nature of the information sought by Seller), at
all reasonable times to examine and make copies of any and all such instruments,
files and records, which right shall survive the Closing;
(k) deliver to Purchaser possession and occupancy of the Property,
subject to the Permitted Exceptions;
(l) deliver to Purchaser evidence of the termination of the
existing management and leasing agreements for the Property; and
(m) deliver such additional documents as shall be reasonably
required to consummate the transaction contemplated by this Agreement.
(n) a Seller's title affidavit in form reasonably approved by
Seller addressed solely to the Title Company.
4.3 Purchaser's Obligations at Closing. At Closing, Purchaser shall:
(a) pay to Seller the full amount of the Purchase Price, as
increased or decreased by prorations and adjustments as herein provided, in
immediately available wire transferred funds pursuant to Section 1.5 above, it
being agreed that at Closing the Earnest Money shall be delivered to Seller and
applied towards payment of the Purchase Price;
(b) join Seller in execution of the instruments described in
Sections 4.2(c), 4.2(d), and 4.2(f) above;
(c) deliver to Seller a letter duly executed by Purchaser in the
form attached hereto as Schedule 4.3(c) , confirming that Purchaser is a Real
Estate Operating Company under the Employee Retirement Income Security Act of
1974, as amended ("ERISA") and the regulations promulgated thereunder, and, in
the event Purchaser is unable or unwilling to make such a representation,
Purchaser shall be deemed to be in default hereunder, and Seller shall have the
right to terminate this Agreement and to receive and retain the Earnest Money;
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(d) deliver to Seller such evidence as Seller's counsel and/or the
Title Company may reasonably require as to the authority of the person or
persons executing documents on behalf of Purchaser; and
(e) deliver such additional documents as shall be reasonably
required to consummate the transaction contemplated by this Agreement.
4.4 Credits and Prorations.
(a) The following shall be apportioned with respect to the Property
as of 12:01 a.m., on the day of Closing, as if Purchaser were vested with title
to the Property during the entire day upon which Closing occurs:
(i) rents, if any, as and when collected (the term "rents" as
used in this Agreement includes all payments due and payable by tenants under
the Leases);
(ii) taxes (including personal property taxes on the Personal
Property) and assessments levied against the Property;
(iii) payments under those Operating Agreements which
Purchaser is assuming; Purchaser shall be deemed to have assumed all Operating
Agreements unless Purchaser gives Seller written notice prior to expiration of
the Inspection Period of any Operating Agreements which Purchaser has elected
not to assume;
(iv) gas, electricity and other utility charges for which
Seller is liable, if any, such charges to be apportioned at Closing on the basis
of the most recent meter reading occurring prior to Closing; and
(v) any other operating expenses or other items pertaining to
the Property which are customarily prorated between a purchaser and a seller in
the area in which the Property is located.
(b) Notwithstanding anything contained in the foregoing provisions:
(i) At Closing, (A) Seller shall, at Seller's option, either
deliver to Purchaser any security deposits actually held by Seller pursuant to
the Leases as set forth in Exhibit F or credit to the account of Purchaser the
amount of such security deposits (to the extent such security deposits are not
applied against delinquent rents following Seller's declaration of a default
under such tenant Lease or otherwise as provided in the Leases and the Tenant
Estoppel confirms such application of the security deposit), and (B) Purchaser
shall credit to the account of Seller all refundable cash or other deposits
posted with utility companies serving the Property to
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the extent they have been assigned to Purchaser or, at Seller's option, Seller
shall be entitled to receive and retain such refundable cash and deposits.
(ii) Any taxes paid at or prior to Closing which have accrued
prior to Closing shall be prorated based upon the amounts actually paid. If
taxes and assessments for the current year have not been paid before Closing,
Seller shall be charged at Closing an amount equal to that portion of such taxes
and assessments which relates to the period before Closing and Purchaser shall
pay the taxes and assessments prior to their becoming delinquent. Any such
apportionment made with respect to a tax year for which the tax rate or assessed
valuation, or both, have not yet been fixed shall initially, be based upon the
tax rate and/or assessed valuation last fixed. To the extent that the actual
taxes and assessments for the current year differ from the amount apportioned at
Closing, the parties shall make all necessary adjustments by appropriate
payments between themselves following Closing, which payments shall not be
subject to the threshold set forth in Section 5.3(a).
(iii) Charges referred to in Section 4.4(a) above which are
payable by any tenant to a third party shall not be apportioned hereunder, and
Purchaser shall accept title subject to any of such charges unpaid and Purchaser
shall look solely to the tenant to be responsible therefor for the payment of
the same. If Seller shall have paid any of such charges on behalf of any tenant
subsequent to the Effective Date because failure to make such payment to a third
party would violate Seller's obligations to such third party, and shall not have
been reimbursed therefor by the time of Closing, Purchaser shall credit to
Seller an amount equal to all such charges so paid by Seller but in no event
more than $20,000 in the aggregate.
(iv) Seller shall receive the entire advantage of any
discounts for the prepayment by it of any taxes, water rates or sewer rents.
(v) As to gas, electricity and other utility charges referred
to in Section 4.4(a)(iv) above, Seller may on notice to Purchaser elect to pay
one or more of all of said items accrued to the date hereinabove fixed for
apportionment directly to the person or entity entitled thereto, and to the
extent Seller so elects, such item shall not be apportioned hereunder, and
Seller's obligation to pay such item directly in such case shall survive the
Closing. Within forty-five (45) days after Closing, Seller shall furnish
Purchaser with evidence of payment thereof except to the extent they are to be
paid by tenants.
(vi) The Personal Property is included in this sale, without
further charge.
(vii) Purchaser shall be responsible for the payment of (A)
all Tenant Inducement Costs (as hereinafter defined) and leasing commissions
which become due and payable (whether before or after Closing) (1) as a result
of any renewals or expansions of existing
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Leases, approved or deemed approved in accordance with Section 5.4 hereof,
between the Effective Date and the date of Closing, (2) under any new Leases,
approved or deemed approved in accordance with Section 5.4 hereof, entered into
between the Effective Date and the date of Closing, and (3) under the lease
amendment with Pharmanet Inc. dated July 9, 1999, and (B) all Tenant Inducement
Costs and leasing commissions which become due and payable from and after the
date of Closing. If, as of the date of Closing, Seller shall have paid any
Tenant Inducement Costs or leasing commissions for which Purchaser is
responsible pursuant to the foregoing provisions, Purchaser shall reimburse
Seller therefor at Closing. For purposes hereof, the term "Tenant Inducement
Costs" shall mean any out-of-pocket payments required under a Lease to be paid
by the landlord thereunder to or for the benefit of the tenant thereunder which
is in the nature of a tenant inducement, including specifically, without
limitation, tenant improvement costs, lease buyout costs, and moving, design,
refurbishment and club membership allowances. The term "Tenant Inducement Costs"
shall not include loss of income resulting from any free rental period, it being
agreed that Seller shall bear the loss resulting from any free rental period
until the date of Closing and that Purchaser shall bear such loss from and after
the date of Closing. Seller shall be responsible for any Tenant Inducement Costs
and Leasing Commissions and shall give Purchaser a credit therefore to the
extent unpaid at Closing for new leases or lease renewals or expansions entered
into prior to the Effective Date except for the lease amendment with Pharmanet.
(viii) There shall be no credit at Closing for unpaid and
delinquent rent except for delinquent rent which became due in the month in
which Closing occurred. Subject to the following sentence, unpaid and delinquent
rent collected by Seller and Purchaser after the date of Closing shall be
delivered as follows: (a) if Seller collects any unpaid or delinquent rent for
the Property, Seller shall, within fifteen (15) days after the receipt thereof,
deliver to Purchaser any such rent which Purchaser is entitled to hereunder
relating to the date of Closing and any period thereafter, and (b) if Purchaser
collects any unpaid or delinquent rent from the Property, Purchaser shall,
within fifteen (15) days after the receipt thereof, deliver to Seller any such
rent which Seller is entitled to hereunder relating to the period prior to the
date of Closing. Seller and Purchaser agree that all rent received by Seller or
Purchaser shall be applied first to delinquent rent which became due in the
month in which Closing occurred, second, to current rentals and then third, to
other delinquent rentals, if any, in inverse order of maturity. Purchaser will
make a good faith effort after Closing to collect all rents in the usual course
of Purchaser's operation of the Property, but Purchaser will not be obligated to
institute any lawsuit or other collection procedures to collect delinquent
rents. Seller shall not sue any tenant for delinquent rent for 90 days from the
Closing date and shall not sue to terminate any lease or evict any tenant.
Seller shall remain responsible for adjustments with tenants after Closing for
periods prior to calendar year in which Closing occurs. In the event that there
shall be any rents or other charges under any Leases which, although relating to
a period prior to Closing, do not become due and payable until after Closing or
are paid prior to Closing but are subject to adjustment after Closing (such as
year end common area expense reimbursements and the like), then any rents or
charges
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of such type received by Purchaser or its agents or Seller or its agents
subsequent to Closing shall, to the extent applicable to a period extending
through the Closing, be prorated between Seller and Purchaser as of Closing and
Seller's portion thereof shall be remitted promptly to Seller by Purchaser.
(ix) Any lease termination fee or other compensation paid by J & B
Software, Inc. to terminate its lease shall be paid entirely to Seller
regardless of when paid.
(x) Without limiting any other post Closing obligation of Purchaser
under this Agreement, Purchaser acknowledges and agrees that Purchaser has the
obligation to pay all mid term tenant improvement costs under the Leases with
Legg Mason Wood Walker, Inc. dated March 12, 1996 as amended January 6, 1996 and
Acme-Hardesty Co. dated December 2, 1996.
(xi) Seller shall have the right, at Seller's option, at any time
prior to Closing to enter into a lease termination agreement with Omnia Inc.
which will terminate the Omnia Inc lease prior to its scheduled expiration date.
In such even Seller shall be entitled to receive all lease termination fees and
delinquent rent regardless of whether paid by Omnia Inc. prior to or subsequent
to Closing.
(c) The provisions of this Section 4.4 shall survive Closing.
4.5 Closing Costs. Seller shall pay (a) the fees of any counsel
representing it in connection with this transaction, (b) one-half (1/2) of any
escrow fee which may be charged by the Escrow Agent or Title Company, and (c)
one-half (1/2) of the realty transfer taxes which became due by reason of the
transfer of the Property. Purchaser shall pay (u) the fees of any counsel
representing Purchaser in connection with this transaction; (v) the fee for the
title examination and the Title Commitment and the premium for the Owner's
Policy of Title Insurance to be issued to Purchaser by the Title Company at
Closing and the cost of the survey; (w) the fees for recording the deed
conveying the Property to Purchaser; (x) one-half (1/2) of any realty transfer
tax, which becomes due by reason of the transfer of the Property; and (y)
one-half (1/2) of any escrow fees charged by the Escrow Agent or Title Company.
All other costs and expenses incidental to this transaction and the closing
thereof shall be paid by the party incurring same.
4.6 Conditions Precedent to Obligation of Purchaser. The obligation of
Purchaser to consummate the transaction hereunder shall be subject to the
fulfillment on or before the date of Closing of all of the following conditions,
any or all of which may be waived by Purchaser in its sole discretion:
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(a) Seller shall have delivered to Purchaser all of the items
required to be delivered to Purchaser pursuant to the terms of this Agreement,
including but not limited to, those provided for in Section 4.2.
(b) All of the representations and warranties of Seller contained
in this Agreement shall be true and correct in all material respects as of the
date of Closing (with appropriate modifications permitted under this Agreement
or not adverse to Purchaser as reasonably determined by Purchaser).
(c) Seller shall have performed and observed, in all material
respects, all covenants and agreements of this Agreement to be performed and
observed by Seller as of the date of Closing.
(d) If J & B Software, Inc. remains in its space subsequent to
September 30, 1999 pursuant to its lease termination agreement dated June 30,
1999, Seller shall pay to Purchaser, on a monthly basis, the sum of $222.28 for
each day after September 30, 1999 that J and B Software remains in occupancy of
its space, which amount shall not be subject to the threshold set forth in
Section 5.3(a), but in no event shall Seller pay such sum for more than 90 days.
(e) The Title Company issues to Purchaser the Title Policy with the
required endorsements referred to in Section 2.4 subject to the Permitted
Exceptions.
4.7 Conditions Precedent to Obligation of Seller. The obligation of
Seller to consummate the transaction hereunder shall be subject to the
fulfillment on or before the date of Closing of all of the following conditions,
any or all of which may be waived by Seller in its sole discretion:
(a) Seller shall have received the Purchase Price as adjusted
pursuant to and payable in the manner provided for in this Agreement. (b)
Purchaser shall have delivered to Seller all of the items required to be
delivered to Seller pursuant to the terms of this Agreement, including but not
limited to, those provided for in Section 4.3.
(c) All of the representations and warranties of Purchaser
contained in this Agreement shall be true and correct in all material respects
as of the date of Closing.
(d) Purchaser shall have performed and observed, in all material
respects, all covenants and agreements of this Agreement to be performed and
observed by Purchaser as of the date of Closing.
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ARTICLE V
REPRESENTATIONS, WARRANTIES AND COVENANTS
5.1 Representations and Warranties of Seller. Seller hereby makes the
following representations and warranties to Purchaser as of the Effective Date:
(a) Organization and Authority. Seller has been duly organized and
is validly existing under the laws of New York. Seller has the full right and
authority to enter into this Agreement and, subject to the provisions of Section
10.6 hereof, to transfer all of the Property to be conveyed by Seller pursuant
hereto and to consummate or cause to be consummated the transactions
contemplated herein to be made by Seller. The person signing this Agreement on
behalf of Seller is authorized to do so.
(b) Pending Actions. To Seller's knowledge, there is no action,
suit, arbitration, unsatisfied order or judgment, governmental investigation or
proceeding pending or overtly threatened in writing against the Property or the
transaction contemplated by this Agreement, which, if adversely determined and
not covered by Seller's insurance could individually or in the aggregate have a
material adverse effect on title to the Property or any portion thereof or which
could in any material way interfere with the consummation by Seller of the
transaction contemplated by this Agreement.
(c) Leases. Seller is the lessor or landlord or the successor
lessor or landlord under the Leases. Except as set forth in the Lease Schedule,
there are no other leases or occupancy agreements to which Seller is a party
affecting the Property or any amendments or modifications thereto. Except as
otherwise set forth in the Leases or on the Lease Schedule, no presently
effective rent concessions have been given to any tenants and no rent has been
paid in advance by any tenants respecting a period subsequent to the Closing.
Except as may be disclosed on the Lease Schedule, no tenants have asserted in
writing directly to Seller (without attribution to Seller of the knowledge of
its property manager which is an affiliate of Purchaser) any claims, defenses or
offsets to rent accruing from and after the date of Closing. To Seller's
knowledge, except as may have been previously disclosed in writing to Purchaser
or set forth in the Lease Schedule or in Section 5.4(c) of this Agreement, no
material default, delinquency or breach exists on the part of any tenant. There
are no material defaults or breaches on the part of the landlord under any
Lease. In the event that any Tenant Estoppel delivered to Purchaser with respect
to any Lease shall contain any statement of fact, information or other matter
which is inconsistent with the matters stated in Seller's representations in
this Section 5.1(c), the Tenant Estoppel shall control and Seller shall have no
liability for any claim based upon a breach of representation regarding such
statement of fact, information or other matter contained in the Tenant Estoppel.
Notwithstanding anything to the contrary contained in this Agreement, Seller
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does not represent or warrant that any particular Lease will be in force or
effect at Closing or that the tenants under the Leases will have performed their
obligations thereunder. The termination of any Lease prior to Closing by reason
of the tenant's default shall not affect the obligations of Purchaser under this
Agreement to complete closing in any manner or entitle Purchaser to an abatement
of or credit against the Purchase Price or give rise to any other claim on the
part of Purchaser. The information on the Leases in the Lease Schedule (or
actually disclosed in the Leases or other materials delivered or made available
to Purchaser prior to the date hereof) is true and complete in all material
respects; and no rents due under any of the Leases have been assigned,
hypothecated or encumbered by Seller; at the time of Closing, Seller shall have
accepted no prepayment of rent under any of the Leases (except for the current
month and except for prepayments heretofore agreed to or received as set forth
either in the Leases or on the Lease Schedule); that Seller shall not have
terminated any of the Leases by agreement with the tenant (except by reason of a
default by the tenant thereunder or except for notices given to indicate the
landlord's intention not to permit the term of the lease to continue or be
renewed for an additional term) and that the copies of the Leases which Seller
shall make available to Purchaser during the Inspection Period are true, correct
and complete copies thereof in all material respects. Following the expiration
of the Inspection Period, Seller shall not terminate a lease by reason of a
default by a tenant without the prior written consent of Purchaser which shall
not be unreasonably withheld or delayed.
(d) Lease Brokerage. There are no lease brokerage agreements,
leasing commission agreements or other agreements providing for payments of any
amounts for leasing activities or procuring tenants with respect to the Property
as of the Effective Date which would be payable subsequent to Closing other than
as disclosed in the Leases, in the Lease Schedule or the Lease files to be made
available to Purchaser during the Inspection Period.
(e) No Violations. To Seller's knowledge, Seller has not received
prior to the Effective Date any written notification from any governmental or
public authority (i) that the Property is in violation of any applicable fire,
health, building, use, occupancy or zoning laws where such violation remains
outstanding or (ii) that any work is required to be done upon or in connection
with the Property, where such work remains outstanding. A possible violation of
the zoning code arising out of the height of the buildings shall not be deemed a
breach of this representation and warranty.
(f) Taxes and Assessments. True and complete copies of the most
recent real estate tax bills for the Property received by Seller have been
delivered to Purchaser. Seller has not filed and has not retained anyone to
file, notices of protests against, or to commence action to review, real
property tax assessments against the Property.
(g) Condemnation. To Seller's knowledge, no condemnation
proceedings relating to the Property are pending or threatened.
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(h) Insurance. To Seller's knowledge, Seller has not received any
written notice from any insurance company or board of fire underwriters of any
defects or inadequacies in or on the Property or any part or component thereof
that would materially and adversely affect the insurability of the Property or
cause any material increase in the premiums for insurance for the Property that
have not been cured or repaired.
(i) Environmental Matters. Except as set forth in the environmental
assessment report dated August 7, 1998, prepared by ATC Associates, a copy of
which has been delivered to Purchaser, any other environmental assessment
reports in Seller's possession and disclosed to Purchaser during the Inspection
Period or as otherwise disclosed to Purchaser, Seller has no knowledge of, and
Seller has received no written notification that any governmental or quasi
governmental authority has determined, that there are any violations of
environmental statutes, ordinances or regulations affecting the Property. As
used herein, "Hazardous Substances" means all hazardous or toxic materials,
pollutants, contaminants or wastes currently identified as hazardous substance
or waste in the Comprehensive Environmental Response, Compensation and Liability
Act of 1980 (commonly known as "CERCLA"), as amended, the Superfund Amendments
and Reauthorization Act (commonly known as "SARA"), the Resource Conservation
and Recovery Act (commonly known as "RCRA"), or any other federal, state or
local legislation or ordinances applicable to the Property.
(j) Assessments. Seller has no knowledge that there are, at the
date of this Agreement, any outstanding unpaid municipal assessment notices
against the Property and Seller has no knowledge of any threatened municipal or
special assessment notices, and that to Seller's knowledge all municipal
improvements for the cost for which the Property can be assessed which were
completed between the date of Seller's acquisition of title to the Property and
the date hereof have been paid in full.
(k) Operating Agreements. The Operating Agreements Schedule (the
"Operating Agreement s Schedule") attached hereto as Exhibit D is a complete and
correct list in all material respects of all Operating Agreements in effect, as
of the date hereof, with respect to the operation and maintenance of the
Property.
5.2 Knowledge Defined. References to the "knowledge" of Seller shall
refer only to the actual knowledge of the Designated Employees (as hereinafter
defined) of Lend Lease Real Estate Investments, Inc. ("Lend Lease"), the manager
of this asset for Seller, and shall not be construed, by imputation or
otherwise, to refer to the knowledge of Seller, Lend Lease or any affiliate of
either of them, to any property manager, or to any other officer, agent,
manager, representative or employee of Seller or Lend Lease or any affiliate
thereof or to impose upon such Designated Employees any duty to investigate the
matter to which such actual knowledge,
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or the absence thereof, pertains. As used herein, the term "Designated
Employees" shall refer to the following persons:
(a) Gary Prugh and
(b) Scott Janzen.
5.3 Survival of Seller's Representations and Warranties. (a) Except as
otherwise provided in subsection (b) below, the representations and warranties
of Seller set forth in Section 5.1 as updated by the certificate of Seller to be
delivered to Purchaser at Closing in accordance with Section 4.2(g) hereof,
shall survive Closing for a period of nine (9) months. No claim for a breach of
any representation or warranty of Seller shall be actionable or payable (a) if
the breach in question results from or is based on a condition, state of facts
or other matter which was known to Purchaser prior to Closing, (b) unless the
valid claims for all such breaches collectively aggregate more than One Hundred
Thousand Dollars ($100,000), in which event the full amount of such claims shall
be actionable, and (c) unless written notice containing a description of the
specific nature of such breach shall have been given by Purchaser to Seller
prior to the expiration of said nine (9) month period and an action shall have
been commenced by Purchaser against Seller within sixty (60) days after the
termination of the survival period provided for above in this Section 5.3. As
used herein, the term "Cap" shall mean the total aggregate amount of One Million
Dollars ($1,000,000). In no event shall Seller's aggregate liability to
Purchaser for breach of any representation or warranty of Seller in this
Agreement, the certificate to be delivered by Seller at Closing pursuant to
Section 4.2(g) hereof and for any other claim, cause of action, or liability of
any kind, arising out of or relating directly or indirectly to this Agreement
(whether in contract, tort or otherwise) exceed the amount of the Cap. Seller
shall maintain a net worth greater than the Cap until after the expiration of
the nine (9) month survival period. If any claims made by Purchaser under this
Agreement prior to the end of the nine (9) month survival period, Seller shall
maintain a net worth greater than the lesser of (i) the Cap or (ii) the
aggregate amount of the claims.
(b) Notwithstanding any provision to the contrary set forth in this
Agreement, the warranties and representations of Seller set forth in Sections
5.1(c) with respect to Leases for which a Tenant Estoppel is delivered pursuant
to Section 5.4(b) and in Sections 5.1(e) and (g) above (all herein called the
"Non-Surviving Warranties") shall not survive Closing. Purchaser shall, prior to
the Closing, make its own independent investigation and determination as to the
truth and accuracy of the Non-Surviving Warranties. If Purchaser shall complete
Closing under this Agreement, Purchaser shall be deemed to have conclusively
determined that the Non-Surviving Warranties are true and correct, and Purchaser
shall be deemed to have waived any claim against Seller by reason of a breach of
any of the Non-Surviving Warranties. If Purchaser obtains actual knowledge that
any of the surviving warranties or any of the Non-Surviving Warranties are
breached prior to the Closing, Purchaser's sole right and remedy
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shall be to terminate this Agreement by giving to Seller written notice of such
termination within ten (10) days after Purchaser acquires actual knowledge of
the breach of such warranty. If Purchaser fails to give such written termination
notice to Seller within such time period, Purchaser shall be deemed to have
waived any right or remedy (including, without limitation, any right under this
Agreement to terminate this Agreement) against Seller by reason of the breach of
such warranty.
5.4 Covenants of Seller. Seller hereby covenants with Purchaser as
follows:
(a) Seller shall not enter into any new Operating Agreements or
amendments to existing Operating Agreements which cannot be terminated at
Closing.
(b) From the Effective Date hereof until the Closing or earlier
termination of this Agreement, Seller shall use reasonable efforts to operate
and maintain the Property in a manner generally consistent with the manner in
which Seller has operated and maintained the Property prior to the date hereof.
Purchaser shall accept the Property at the time of Closing in the same condition
as the same are as of the date of this Agreement, as such condition shall have
changed by reason of normal wear and tear. Without limiting the generality of
the foregoing, Purchaser specifically acknowledges that the fact that any
portion of the Property or any equipment or machinery therein or any part
thereof may not be in working order or condition at the Closing date by reason
of normal wear and tear or by reason of its present condition, shall not relieve
Purchaser of its obligation to complete Closing under this Agreement and pay the
full Purchase Price. Notwithstanding that Seller has no obligation to make any
repairs or replacements required by reason of wear and tear or fire or other
casualty, Seller may, at its option, make any such repairs and replacements
prior to the Closing if Seller believes such repairs and replacements are
necessary, desirable or legally required to protect the Property, but Seller
shall notify Purchaser if the cost thereof exceeds $25,000 in the aggregate and
provide Purchaser with a list of such items at least five days before incurring
them except in the case of emergencies. The reasonable cost of such repairs and
replacements which is not covered by insurance shall be added to the Purchase
Price and shall be payable by Purchaser to Seller at Closing.
(c) Seller shall use reasonable efforts (but without obligation to
incur any cost or expense) to obtain and deliver to Purchaser prior to Closing,
a written estoppel certificate in the form of Exhibit E attached hereto and made
a part hereof signed by each tenant occupying space in the Improvements. The
signed certificates are referred to herein as the "Tenant Estoppels."
Notwithstanding the foregoing, Purchaser may terminate this Agreement and have
the Earnest Money returned if (i) the Tenant Estoppels do not conform in any
material respect with the representations as to the Leases made by Seller to
Purchaser in Section 5.1(c) and/or (ii) Seller fails to deliver to Purchaser by
Closing Tenant Estoppels from: (A) Liberty Mutual Insurance Group and Pharmanet
Inc. (as to both existing space and expansion space except for
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physical occupancy of and payment of rent for, expansion space not yet available
for occupancy by Pharmanet Inc.) (collectively the "Major Tenants") and (B) from
such additional tenants that, in the aggregate, including the Major Tenants,
Purchaser receives Tenant Estoppels from tenants occupying at least eighty-five
percent (85%) of the rentable square feet in the Improvements. Purchaser agrees
not to object to (i) any non-material (as determined in Purchaser's reasonable
judgment) qualifications or modifications which a tenant may make to the form of
Tenant Estoppel and (ii) any modification to a tenant estoppel to conform the
Tenant Estoppel to the form of tenant estoppel certificate the tenant is
required to give under its lease and (iii) a statement by tenant that it is made
to the tenant's knowledge. Purchaser's obligations under this Agreement to
complete Closing and pay the Purchase Price shall not be relieved if Seller is
unable to obtain any Tenant Estoppel required to be delivered after using its
reasonable efforts to obtain it if Seller instead, at Seller's sole option,
executes a Tenant Estoppel for such tenant other than a Major Tenant. If any
such tenant or tenants does have a claim which would entitle it to set-off the
amount of the claim against rent due under the lease and the amount of such
claim is ascertainable, Seller shall give Purchaser a credit against the cash
portion of the Purchase Price in the amount of the claim(s) up to $50,000 in the
aggregate for all such claims, and if the claim(s) exceed $50,000 in the
aggregate, Seller has the right, at its sole option, to give Purchaser a credit
against the cash portion of the Purchase Price in the amount of the claim; and,
in such event, Purchaser shall complete Closing and take subject to such claim.
If Seller does not give Purchaser a credit against the cash portion of the
Purchase Price, Purchaser may, as its sole remedies, either terminate this
Agreement and have the Earnest Money returned or take subject to such claim
without seeking reimbursement or contribution from Seller. If Seller has
delivered a Seller Tenant Estoppel to Purchaser for one or more tenants and
within ninety (90) days following Closing, Seller or Purchaser receives an
acceptable Tenant Estoppel from any such tenant reflecting the same information
as the Landlord's Tenant Estoppel, then the Landlord's Tenant Estoppel for such
tenant shall be deemed null and void. Notwithstanding the foregoing, Purchaser
acknowledges that Omnia, Inc. ("Omnia") is currently in default under its lease
and Compuware Corporation ("Compuware") has vacated its premises but continues
to pay rent. Purchaser waives delivery of a Tenant Estoppel from Omnia and
Computerware and agrees not to include the space under those two (2) leases in
computing the rentable square feet of the Improvements.
(d) A copy of any amendment of an existing Lease or of any new
Lease which Seller wishes to execute between the Effective Date and the date of
Closing will be submitted to Purchaser prior to execution by Seller. Purchaser
agrees to notify Seller in writing within five (5) business days after its
receipt thereof of either its approval or disapproval, including all Tenant
Inducement Costs and leasing commissions to be incurred in connection therewith
specifically identified in writing to Purchaser. In the event Purchaser informs
Seller that Purchaser does not approve the amendment of the existing Lease or
the new Lease, which approval shall not be unreasonably withheld prior to the
expiration of the Inspection Period, Seller shall have the option to cancel this
Agreement by written notice thereof to Purchaser within five (5) business
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days after Seller's receipt of written notice of Purchaser's disapproval
thereof, and upon refund and payment of the Earnest Money to Purchaser, neither
party shall have any further liability or obligation hereunder. Seller will not
exercise this termination right with respect to Purchaser disapprovals occurring
after expiration of the Inspection Period. In the event Purchaser fails to
notify Seller in writing of its approval or disapproval within the five (5)
business day time period for such purpose set forth above, such failure shall be
deemed the approval by Purchaser. At Closing, Purchaser shall reimburse Seller
for any Tenant Inducement Costs, leasing commissions or other expenses,
including legal fees, incurred by Seller pursuant to an amendment, or a new
Lease approved (or deemed approved) by Purchaser provided such costs have been
specifically identified in writing to Purchaser prior to its approval.
(e) Upon written request of Purchaser, Seller will cooperate with
Purchaser to provide Purchaser the names and addresses of the general partner of
Seller and the general partners of the subtier partners in Seller and their
parent companies and other similar information reasonably requested by Purchaser
(but excluding the names and addresses of the limited partners of Seller or any
limited partners in any subtier partner of Seller) so Purchaser can make its own
determination with respect to any ERISA matters relevant to Purchaser, but
Seller shall not be required to make any representations or warranties to
Purchaser with respect to ERISA. Seller confirms to Purchaser that (i) the
limited partnership interests in ML/EQ Real Estate Portfolio LP, Seller's
managing venturer, were registered with the Securities and Exchange Commission
and then sold publicly, and (ii) the interests in Seller owned by The Equitable
Life Assurance Society of the United States are owned for its general account
and as of the date hereof less than twenty-five percent 25% of the funds in its
general account are assets of "benefit plan investors" as defined by 29 CFR
2510.3-101(f).
5.5 Representations and Warranties of Purchaser. Purchaser hereby
represents and warrants to Seller:
(a) Purchaser is a Real Estate Operating Company as defined in
ERISA and the regulations promulgated thereunder.
(b) Purchaser has the full right, power and authority to purchase
the Property as provided in this Agreement and to carry out Purchaser's
obligations hereunder, and all requisite action necessary to authorize Purchaser
to enter into this Agreement and to carry out its obligations hereunder have
been, or by the Closing will have been, taken. The person signing this Agreement
on behalf of Purchaser is authorized to do so.
(c) There is no action, suit, arbitration, unsatisfied order or
judgment, government investigation or proceeding pending against Purchaser
which, if adversely determined, could individually or in the aggregate
materially interfere with the consummation of the transaction contemplated by
this Agreement.
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5.6 Survival of Purchaser's Representations and Warranties. The
representation and warranties of Purchaser set forth in Section 5.5(a) shall
survive Closing and shall be a continuing representation and warranty without
limitation. All other representations and warranties of Purchaser shall survive
Closing for a period of nine (9) months.
5.7 Covenants of Purchaser. Purchaser hereby covenants with Seller that
Purchaser shall, in connection with its investigation of the Property during the
Inspection Period, inspect the Property for the presence of Hazardous Substances
(as defined in Section 5. 1 (i) hereof). Purchaser hereby assumes full
responsibility for such inspections and, except for claims based on
representations or warranties contained in Section 5.1(i), irrevocably waives
any claim against Seller arising from the presence of Hazardous Substances on
the Property. Nothing in this Section 5.7 constitutes a waiver by Purchaser of
any representation of Seller under this Agreement.
5.8 Purchaser Assumption. Purchaser shall be responsible to comply with
any notices concerning the existence of an uncorrected violation of law issued
by any public authority after the expiration date of the Inspection Period
(including any fines, interest or penalties thereon due to non-compliance
therewith), and Purchaser shall indemnify, defend and exonerate and save Seller
harmless from any claims therefor or any liability, loss, cost or expense
arising therefrom, and, if such compliance must occur prior to the date of
Closing to protect the Property, or to prevent the imposition of any fine or
penalty, Seller may effect such compliance, and the reasonable cost thereof
shall be deemed added to the Purchase Price and paid at Closing. Purchaser shall
also be responsible for payment of any municipal assessment against the Property
which is levied after the date of this Agreement. Purchaser shall have the same
obligations to Seller with respect to any such violation notice or municipal
assessment made after the date of Closing to the extent that the assessing
entity claims that Seller shall have personal liability. Seller shall be
responsible to correct any violation of law notices issued to Seller between the
Effective Date and the expiration of the Inspection Period, but if the cost of
correcting such violation notices exceeds $100,000 in the aggregate, Seller can
elect to terminate this Agreement in which even the Earnest Money shall be
returned to Purchaser as its sole remedy. Purchaser agrees and confirms that
Purchaser has not previously sought, and shall not seek, directly or indirectly
to cause or encourage any governmental official to inspect the Property.
ARTICLE VI
DEFAULT
6.1 Default by Purchaser. If Purchaser defaults under this Agreement
for any reason other than Seller's default or the permitted termination of this
Agreement by either Seller or
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Purchaser as herein expressly provided, Seller shall be entitled, as its sole
remedy, to terminate this Agreement and receive the Earnest Money as liquidated
damages for the breach of this Agreement, it being agreed between the parties
hereto that the actual damages to Seller in the event of such breach are
impractical to ascertain and the amount of the Earnest Money is a reasonable
estimate thereof.
6.2 Default by Seller. In the event that Seller fails to consummate its
obligations under this Agreement for any reason other than Purchaser's default
or the permitted termination of this Agreement by Seller or Purchaser as herein
expressly provided, Purchaser shall be entitled, as its sole remedy, either (a)
to receive the return of the Earnest Money which return shall operate to
terminate this Agreement and release Seller from any and all liability
hereunder, or (b) to enforce specific performance of Seller's obligation to
execute the documents required to convey the Property to Purchaser, it being
understood and agreed that the remedy of specific performance shall not be
available to enforce any other obligation of Seller hereunder. Purchaser
expressly waives its rights to seek damages in the event of Seller's default
hereunder. Purchaser shall be deemed to have elected to terminate this Agreement
and receive back the Earnest Money if Purchaser fails to file suit for specific
performance against Seller in a court having jurisdiction in the county and
state in which the Property is located, on or before thirty (30) days following
the date upon which Closing was to have occurred.
ARTICLE VII
RISK OF LOSS
7.1 Minor Damage. In the event of loss or damage to the Property or any
portion thereof which is not "major" (as hereinafter defined), this Agreement
shall remain in full force and effect provided Seller performs any necessary
repairs prior to Closing or, at Purchaser's option, gives Purchaser a credit,
but only to the extent of insurance proceeds received by Seller or recoverable
by Seller, at Closing for the cost to repair the damage plus any resulting rent
loss. In the event that Seller elects to perform repairs upon the Property,
Seller shall use reasonable efforts to complete such repairs promptly and the
date of Closing shall be extended a reasonable time in order to allow for the
completion of such repairs but in no event greater than one hundred twenty (120)
days. Upon Closing, full risk of loss with respect to the Property shall pass to
Purchaser.
7.2 Major Damage. In the event of a "major" loss or damage, either
Seller or Purchaser may terminate this Agreement by written notice to the other
party, in which event the Earnest Money shall be returned to Purchaser. If
neither Seller nor Purchaser elects to terminate this Agreement within ten (10)
days after Seller sends Purchaser written notice of the occurrence of major loss
or damage, then Seller and Purchaser shall be deemed to have elected to proceed
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with Closing, in which event Seller shall, at Seller's option, either (a)
perform any necessary repairs, or (b) assign to Purchaser all of Seller's right,
title and interest to any claims and proceeds Seller may have with respect to
any casualty insurance policies or condemnation awards and to any rent loss
insurance proceeds relating to the premises in question. In the event that
Seller elects to perform repairs upon the Property, Seller shall use reasonable
efforts to complete such repairs promptly and the date of Closing shall be
extended a reasonable time in order to allow for the completion of such repairs.
If Seller elects to assign a casualty claim to Purchaser, the Purchase Price
shall be reduced by an amount equal to the deductible amount under Seller's
insurance policy. Upon Closing, full risk of loss with respect to the Property
shall pass to Purchaser.
7.3 Definition of "Major" Loss or Damage. For purposes of Sections 7.1
and 7.2, "major" loss or damage refers to the following: (i) loss or damage to
the Property or any portion thereof such that (a) the cost of repairing or
restoring the premises in question to a condition substantially identical to
that of the premises in question prior to the event of damage would be, in the
opinion of an architect selected by Seller and reasonably approved by Purchaser,
equal to or greater than One Million Dollars ($1,000,000), or (b) any Leases for
18,000 square feet or more in the aggregate have been terminated as a result of
such loss or damage and (ii) any loss due to a condemnation which permanently
and materially impairs the current use of the Property. If Purchaser does not
give notice to Seller of Purchaser's reasons for disapproving an architect
within five (5) business days after receipt of notice of the proposed architect,
Purchaser shall be deemed to have approved the architect selected by Seller.
ARTICLE VIII
COMMISSIONS
8.1 Brokerage Commissions.
(a) In the event the transaction contemplated by this Agreement is
consummated, but not otherwise, Seller agrees to pay to Cushman and Wakefield of
PA, Inc. (the "Broker") at Closing a brokerage commission pursuant to a separate
written agreement between Seller and Broker. Each party agrees that should any
claim be made for brokerage commissions or finder's fees by any broker or finder
other than the Broker by, through or on account of any acts of said party or its
representatives, said party will indemnify and hold the other party free and
harmless from and against any and all loss, liability, cost, damage and expense
in connection therewith. Purchaser shall pay any fees due its advisor, LaSalle
Investment Management, Inc. or any of its affiliates. The provisions of this
paragraph shall survive Closing or earlier termination of this Agreement.
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(b) In consideration of Broker agreeing to reduce its
commission by $50,000, Seller agrees to give Purchaser at Closing a $50,000
credit against the Purchase Price.
ARTICLE IX
DISCLAIMERS AND WAIVERS
9.1 No Reliance on Documents. Except as expressly stated herein, Seller
makes no representation or warranty as to the truth, accuracy or completeness of
any materials, data or information delivered by Seller to Purchaser in
connection with the transaction contemplated hereby. Purchaser acknowledges and
agrees that all materials, data and information delivered by Seller to Purchaser
in connection with the transaction contemplated hereby are provided to Purchaser
as a convenience only and that any reliance on or use of such materials, data or
information by Purchaser shall be at the sole risk of Purchaser, except as
otherwise expressly stated herein. Without limiting the generality of the
foregoing provisions, Purchaser acknowledges and agrees that (a) any
environmental or other report with respect to the Property which is delivered by
Seller to Purchaser shall be for general informational purposes only,
(b) Purchaser shall not have any right to rely on any such report delivered by
Seller to Purchaser, but rather will rely on its own inspections and
investigations of the Property and any reports commissioned by Purchaser with
respect thereto, and (c) neither Seller, any affiliate of Seller nor the person
or entity which prepared any such report delivered by Seller to Purchaser shall
have any liability to Purchaser for any inaccuracy in or omission from any such
report.
9.2 DISCLAIMERS. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, IT IS
UNDERSTOOD AND AGREED THAT SELLER IS NOT MAKING AND HAS NOT AT ANY TIME MADE ANY
WARRANTIES OR REPRESENTATIONS OF ANY KIND OR CHARACTER, EXPRESSED OR IMPLIED,
WITH RESPECT TO THE PROPERTY, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OR
REPRESENTATIONS AS TO HABITABILITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR
PURPOSE, TITLE (OTHER THAN SELLER'S LIMITED WARRANTY OF TITLE TO BE SET FORTH IN
THE DEED), ZONING, TAX CONSEQUENCES, LATENT OR PATENT PHYSICAL OR ENVIRONMENTAL
CONDITION, UTILITIES, OPERATING HISTORY OR PROJECTIONS, VALUATION, GOVERNMENTAL
APPROVALS, THE COMPLIANCE OF THE PROPERTY WITH GOVERNMENTAL LAWS, THE TRUTH,
ACCURACY OR COMPLETENESS OF THE PROPERTY DOCUMENTS OR ANY OTHER INFORMATION
PROVIDED BY OR ON BEHALF OF SELLER TO PURCHASER, OR ANY OTHER MATTER OR THING
REGARDING THE PROPERTY. PURCHASER ACKNOWLEDGES AND AGREES THAT UPON CLOSING
SELLER SHALL SELL AND CONVEY TO PURCHASER AND PURCHASER SHALL ACCEPT THE
PROPERTY "AS IS, WHERE IS, WITH ALL FAULTS" EXCEPT TO THE EXTENT EXPRESSLY
PROVIDED OTHERWISE IN THIS AGREEMENT. PURCHASER HAS NOT RELIED AND WILL NOT
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RELY ON, AND SELLER IS NOT LIABLE FOR OR BOUND BY, ANY EXPRESSED OR IMPLIED
WARRANTIES, GUARANTIES, STATEMENTS, REPRESENTATIONS OR INFORMATION PERTAINING TO
THE PROPERTY OR RELATING THERETO (INCLUDING SPECIFICALLY, WITHOUT LIMITATION,
PROPERTY INFORMATION PACKAGES DISTRIBUTED WITH RESPECT TO THE PROPERTY) MADE OR
FURNISHED BY SELLER, THE MANAGER OF THE PROPERTY, OR ANY REAL ESTATE BROKER OR
AGENT REPRESENTING OR PURPORTING TO REPRESENT SELLER, TO WHOMEVER MADE OR GIVEN,
DIRECTLY OR INDIRECTLY, ORALLY OR IN WRITING, UNLESS SPECIFICALLY SET FORTH IN
THIS AGREEMENT. PURCHASER REPRESENTS TO SELLER THAT PURCHASER HAS CONDUCTED, OR
WILL CONDUCT PRIOR TO CLOSING, SUCH INVESTIGATIONS OF THE PROPERTY, INCLUDING
BUT NOT LIMITED TO, THE PHYSICAL AND ENVIRONMENTAL CONDITIONS THEREOF, AS
PURCHASER DEEMS NECESSARY TO SATISFY ITSELF AS TO THE CONDITION OF THE PROPERTY
AND THE EXISTENCE OR NONEXISTENCE OR CURATIVE ACTION TO BE TAKEN WITH RESPECT TO
ANY HAZARDOUS OR TOXIC SUBSTANCES ON OR DISCHARGED FROM THE PROPERTY, AND WILL
RELY SOLELY UPON SAME AND NOT UPON ANY INFORMATION PROVIDED BY OR ON BEHALF OF
SELLER OR ITS AGENTS OR EMPLOYEES WITH RESPECT THERETO, OTHER THAN SUCH
REPRESENTATIONS, WARRANTIES AND COVENANTS OF SELLER AS ARE EXPRESSLY SET FORTH
IN THIS AGREEMENT. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT,
UPON CLOSING, PURCHASER SHALL ASSUME THE RISK THAT ADVERSE MATTERS, INCLUDING
BUT NOT LIMITED TO, CONSTRUCTION DEFECTS AND ADVERSE PHYSICAL AND ENVIRONMENTAL
CONDITIONS, MAY NOT HAVE BEEN REVEALED BY PURCHASER'S INVESTIGATIONS, AND
PURCHASER, UPON CLOSING, SHALL BE DEEMED TO HAVE WAIVED, RELINQUISHED AND
RELEASED SELLER (AND SELLER'S OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES AND
AGENTS) FROM AND AGAINST ANY AND ALL CLAIMS, DEMANDS, CAUSES OF ACTION
(INCLUDING CAUSES OF ACTION IN TORT), LOSSES, DAMAGES, LIABILITIES, COSTS AND
EXPENSES (INCLUDING ATTORNEYS' FEES AND COURT COSTS) OF ANY AND EVERY KIND OR
CHARACTER, KNOWN OR UNKNOWN, WHICH PURCHASER MIGHT HAVE ASSERTED OR ALLEGED
AGAINST SELLER (AND SELLER'S OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES AND
AGENTS) AT ANY TIME BY REASON OF OR ARISING OUT OF ANY LATENT OR PATENT
CONSTRUCTION DEFECTS OR PHYSICAL CONDITIONS, VIOLATIONS OF ANY APPLICABLE LAWS
(INCLUDING, WITHOUT LIMITATION, ANY ENVIRONMENTAL LAWS) AND ANY AND ALL OTHER
ACTS, OMISSIONS, EVENTS, CIRCUMSTANCES OR MATTERS REGARDING THE PROPERTY. EXCEPT
THAT NOTHING IN THIS SECTION 9.1 CONSTITUTES A WAIVER OF ANY REPRESENTATION OF
SELLER UNDER THIS AGREEMENT.
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9.3 Effect and Survival of Disclaimers. Seller and Purchaser
acknowledge that the compensation to be paid to Seller for the Property has been
decreased to take into account that the Property is being sold subject to the
provisions of this Article IX. Seller and Purchaser agree that the provisions of
this Article IX shall survive Closing.
9.4 Representation by Counsel. Purchaser acknowledges that Purchaser
has been represented by independent legal counsel of Purchaser's selection and
Purchaser is granting the release set forth in Section 9.2 of its own violation
and after consultation with Purchaser's counsel.
ARTICLE X
MISCELLANEOUS
10.1 Confidentiality. Purchaser and its representatives shall hold in
strictest confidence all data and information obtained with respect to Seller or
its business, whether obtained before or after the execution and delivery of
this Agreement, and shall not disclose the same to others; provided, however,
that it is understood and agreed that Purchaser may disclose such data and
information to the lenders, investors, employees, consultants, accountants and
attorneys of Purchaser provided that such persons agree in writing to treat such
data and information confidentially. Notwithstanding the foregoing, neither
Purchaser nor its representatives shall be obligated to hold in confidence data
or information which is public or which Purchaser received from a third party
who is not under a confidentiality obligation to Seller. In the event this
Agreement is terminated or Purchaser fails to perform hereunder, Purchaser shall
promptly return to Seller any statements, documents, schedules, exhibits or
other written information obtained from Seller in connection with this Agreement
or the transaction contemplated herein. It is understood and agreed that, with
respect to any provision of this Agreement which refers to the termination of
this Agreement and the return of the Earnest Money to Purchaser, such Earnest
Money shall not be returned to Purchaser unless and until Purchaser has
fulfilled its obligations to return to Seller the materials described in the
preceding sentence. In the event of a breach of threatened breach by Purchaser
or its agents or representatives of this Section 10.1, Seller shall be entitled
to an injunction restraining Purchaser or its agents or representatives from
disclosing, in whole or in party, such confidential information. Nothing herein
shall be construed as prohibiting Seller from pursuing any other available
remedy at law or in equity for such breach of threatened breach. The provisions
of this Section 10.1 shall survive Closing.
10.2 Public Disclosure. Any release to the public of information with
respect to the sale contemplated herein or any matters set forth in this
Agreement will be made only in the form reasonably approved by Purchaser and
Seller and their respective counsel.
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10.3 Discharge of Obligations. The acceptance of the Deed by Purchaser
shall be deemed to be a full performance and discharge of every representation
and warranty made by Seller herein and every agreement and obligation on the
part of Seller to be performed pursuant to the provisions of this Agreement,
except those which are herein specifically stated to survive Closing and except
for the provisions of the Closing documents which expressly state that they are
to survive Closing.
10.4 Assignment. Purchaser shall give Seller prior written notice of
any proposed assignment of this Agreement or proposed transfer, directly or
indirectly, of any stock, partnership or other ownership interest in Purchaser
which will affect the control of Purchaser. Such notice shall identify the
proposed assignee or transferee and the constituent individuals and/or entities
thereof. Such notice shall be accompanied, as the case may be, by the written
certification of the proposed assignee in the case of an assignment or by the
written certification of Purchaser in the case of a transfer, directly or
indirectly, of any stock, partnership or other ownership interest in Purchaser
that the Property will not be purchased in whole or part with the assets of an
Employee Benefit Plan unless an exemption from ERISA is available. Purchaser
shall in addition cause to be delivered to Seller such further information with
respect to the proposed assignee or transferee and the constituent individuals
and/or entities thereof, including specifically, without limitation, any pension
or profit sharing plans related thereto, as Seller may request. Seller's consent
to any such assignment or transfer shall not relieve Purchaser of its
obligations under this Agreement. Purchaser may not assign its rights under this
Agreement to anyone other than a Permitted Assignee (as hereinafter defined)
without first obtaining Seller's written approval which may be given or withheld
in Seller's sole discretion. Subject to the conditions set forth in this Section
10.4, Purchaser may assign its rights under this Agreement to a Permitted
Assignee without the prior written consent of Seller. In the event that
Purchaser desires to assign its rights under this Agreement to a Permitted
Assignee, Purchaser shall send written notice to Seller at least five (5)
business days prior to the effective date of such assignment stating the name
and, if applicable, the constituent persons or entities of the Permitted
Assignee. Such assignment shall not become effective until such Permitted
Assignee executes an instrument reasonably satisfactory to Seller in form and
substance whereby the Permitted Assignee expressly assumes each of the
obligations of Purchaser under this Agreement, including specifically, without
limitation, all obligations concerning the Earnest Money. No assignment shall
release or otherwise receive Purchaser from any obligations hereunder. For
purposes of this Section 10.4 the term "Permitted Assignee" shall mean any
affiliate or advisee of Purchaser. Notwithstanding anything to the contrary
contained herein, Purchaser shall not have the right to assign this Agreement to
any assignee which, in the reasonable judgment of Seller, will cause the
transaction contemplated hereby or any party thereto to violate the requirement
of ERISA. In order to enable Seller to make such determination, Purchaser shall
cause to be delivered to Seller such information as is requested by Seller with
respect to a proposed assignee and the constituent persons or entities of any
proposed assignee, including specifically, without limitation, any pension or
profit-sharing plans related thereto.
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10.5 Notices. Any notice pursuant to this Agreement shall be given in
writing by (a) personal delivery, or (b) reputable overnight delivery service
with proof of delivery, or (c) United States Mail, postage prepaid, registered
or certified mail, return receipt requested, or (d) legible facsimile
transmission sent to the intended addressee at the address set forth below, or
to such other address or to the attention of such other person as the addressee
shall have designated by written notice sent in accordance herewith, and shall
be deemed to have been given either at the time of personal delivery, or, in the
case of expedited delivery service or mail, as of the date of first attempted
delivery at the address and in the manner provided herein, or, in the case of
facsimile transmission, as of the date of the facsimile transmission provided
that an original of such facsimile is also sent to the intended addressee by
means described in clauses (a), (b) or (c) above. Unless changed in accordance
with the preceding sentence, the addresses for notices given pursuant to this
Agreement shall be as follows:
If to Seller:
c/o The Equitable Life Assurance Society of the
United States
1290 Avenue of the Americas
New York, NY 10104
Attention: Law Department - Real Estate
Telecopy: 212-707-7977
with a copy to:
Lend Lease Real Estate Investments, Inc.
Monarch Tower
3424 Peachtree Road, N.E.
Suite 800
Atlanta, GA 30326
Attention: Mark Hillis
Telecopy: 404-848-8905
Lend Lease Real Estate Investments, Inc.
1735 Market Street - Suite 4200
Mellon Bank Center
Philadelphia, PA 19103
Attention: Gary Prugh
Telecopy: 215-979-3707
AND
31
<PAGE> 33
Wolf, Block, Schorr and Solis-Cohen LLP
1650 Arch Street
Philadelphia, PA 19103
Attention: James S. Burns
Telecopy: 215-977-2334
If to Purchaser:
c/o LaSalle Investment Management, Inc.
100 East Pratt Street
Baltimore, MD 21382
Attention: David L. Craine
Telecopy: 410-347-0612
with a copy to:
Hagan & Associates
200 East Randolph Drive
Suite 4322
Chicago, IL 60601
Attention: R. K. Hagan
Telecopy: 312-228-3994
10.6 Binding Effect. This Agreement shall not be binding in any way
upon Seller unless and until (a) Seller shall execute and deliver the same to
Purchaser, (b) each stage of Seller's investment approval process has approved
this transaction, and (c) Seller's Investment Committee has thereafter given its
written approval thereof. If Seller has not given Purchaser written notice (the
"Approval Notice") of such approvals on or before September 8, 1999 (the
"Approval Deadline"), or if prior to the Approval Deadline Seller notifies
Purchaser in writing that this Agreement has been disapproved by the persons or
entities referred to in clauses (b) or (c) of the preceding sentence, then this
Agreement shall be deemed terminated and Purchaser shall be entitled to the
return of the Earnest Money. It is understood and agreed that at each stage of
Seller's investment approval process, Seller or its investment advisor, Lend
Lease Real Estate Investment, Inc., shall each have the right, in its unfettered
discretion, to disapprove the transaction contemplated by this Agreement for any
reason whatsoever, without obligation thereafter to proceed to the next stage of
Seller's investment approval process. Seller's approval of this Agreement shall
be evidenced only by both Seller's execution of this Agreement and Seller's
sending of the Approval Notice to Purchaser prior to the Approval Deadline and,
accordingly, Purchaser acknowledges and agrees that Purchaser cannot and will
not rely upon any other statement or action of Seller or its representatives as
evidence of Seller's approval of this Agreement or the subject matter hereof.
32
<PAGE> 34
10.7 Modifications. This Agreement cannot be changed orally, and no
executory agreement shall be effective to waive, change, modify or discharge it
in whole or in part unless such executory agreement is in writing and is signed
by the parties against whom enforcement of any waiver, change, modification or
discharge is sought.
10.8 Tenant Notification Letters. Purchaser shall deliver to each and
every tenant of the Property under a Lease thereof the notice required under
Section 4.2 (f). The provisions of this paragraph shall survive Closing.
10.9 Calculation of Time Periods. Unless otherwise specified, in
computing any period of time described in this Agreement, the day of the act or
event after which the designated period of time begins to run is not to be
included and the last day of the period so computed is to be included, unless
such last day is a Saturday, Sunday or legal holiday under the laws of the State
in which the Property is located, in which event the period shall run until the
end of the next day which is neither a Saturday, Sunday or legal holiday. The
final day of any such period shall be deemed to end at 5 p.m., local time.
10.10 Successors and Assigns. The terms and provisions of this
Agreement are to apply to and bind the permitted successors and assigns of the
parties hereto.
10.11 Entire Agreement. This Agreement, including the Exhibits,
contains the entire agreement between the parties pertaining to the subject
matter hereof and fully supersedes all prior written or oral agreements and
understandings between the parties pertaining to such subject matter.
10.12 Further Assurances. Each party agrees that it will without
further consideration execute and deliver such other documents and take such
other action, whether prior or subsequent to Closing, as may be reasonably
requested by the other party to consummate more effectively the purposes or
subject matter of this Agreement. Without limiting the generality of the
foregoing, Purchaser shall, if requested by Seller, execute acknowledgments of
receipt with respect to any materials delivered by Seller to Purchaser with
respect to the Property. The provisions of this Section 10. 12 shall survive
Closing.
10.13 Counterparts. This Agreement may be executed in counterparts, and
all such executed counterparts shall constitute the same agreement. It shall be
necessary to account for only one such counterpart in proving this Agreement.
10.14 Severability. If any provision of this Agreement is determined by
a court of competent jurisdiction to be invalid or unenforceable, the remainder
of this Agreement shall nonetheless remain in full force and effect.
33
<PAGE> 35
10.15 Applicable Law. This Agreement is performable in the state in
which the Property is located and shall in all respects be governed by, and
construed in accordance with, the substantive federal laws of the United States
and the laws of such state. Seller and Purchaser hereby irrevocably submit to
the jurisdiction of any state or federal court sitting in the state in which the
Property is located in any action or proceeding arising out of or relating to
this Agreement and hereby irrevocably agree that all claims in respect of such
action or proceeding shall be heard and determined in a state or federal court
sitting in the state in which the Property is located. Purchaser and Seller
agree that the provisions of this section 10. 15 shall survive the Closing of
the transaction contemplated by this Agreement.
10.16 No Third Party Beneficiary. The provisions of this Agreement and
of the documents to be executed and delivered at Closing are and will be for the
benefit of Seller and Purchaser only and are not for the benefit of any third
party, and accordingly, no third party shall have the right to enforce the
provisions of this Agreement or of the documents to be executed and delivered at
Closing.
10.17 Exhibits and Schedules. The following schedules or exhibits
attached hereto shall be deemed to be an integral part of this Agreement:
(a) Exhibit A Legal Description of the Land
(b) Exhibit B Personal Property
(c) Exhibit C Lease Schedule
(d) Exhibit D Operating Agreements Schedule
(e) Exhibit E Tenant Estoppel Form
(f) Exhibit F Security Deposits
(g) Schedule 4.2(a) Deed
(h) Schedule 4.2(b) Bill of Sale
(i) Schedule 4.2(c)&(d) Assignment
(j) Schedule 4.2(f) Tenant Notice
(k) Schedule 4.2(i) FIRPTA Affidavit
(l) Schedule 4.3(c) ERISA letter
10.18 Captions. The section headings appearing in this Agreement are
for convenience of reference only and are not intended, to any extent and for
any purpose, to limit or define the text of any section or any subsection
hereof.
10.19 Construction. The parties acknowledge that the parties and their
counsel have reviewed and revised this Agreement and that the normal rule of
construction to the effect that any ambiguities are to be resolved against the
drafting party shall not be employed in the interpretation of this Agreement or
any exhibits or amendments hereto.
34
<PAGE> 36
10.20 Termination of Agreement. It is understood and agreed that if
either Purchaser or Seller terminates this Agreement pursuant to a right of
termination granted hereunder, such termination shall operate to relieve Seller
and Purchaser from all obligations under this Agreement, except for such
obligations as are specifically stated herein to survive the termination of this
Agreement.
10.21 Survival. The provisions of this Article 10 and of the following
Sections of this Agreement shall survive Closing or any termination of this
Agreement prior thereto and shall not be merged into the execution and delivery
of the Deed: 3. 1; 4.2(j); 4.4; 4.5; 5.3; 5.5; 5.6; Article VI; 8.1, 9.3, 10.1,
10.5; 10.8, 10.9; 10.12 and 10.15. The foregoing is in addition to and not in
exclusion of any survival provisions elsewhere set forth in this Agreement.
10.22 No Recordation. Neither this Agreement nor any memorandum of the
terms hereof shall be recorded or otherwise placed of public record and any
breach of this covenant shall, unless the party not placing same of record is
otherwise in default hereunder, entitle the party not placing same of record to
pursue its rights and remedies under Article VI.
10.23 Limited Liability. The obligations of Seller arising by virtue of
this Agreement shall be limited to the interest of Seller in the Property and
the net sale proceeds thereof and resort shall not be held to any other assets
of Seller.
10.24 Waiver of Tender of Deed and Purchase Monies. The tender of an
executed Deed by Seller and the tender by Purchaser of the portion of the
Purchase Price payable at Closing are hereby mutually waived except as otherwise
provided in Sections 4.2 and 4.3; provided, however, nothing herein contained
shall be construed as a waiver of Seller's obligation to deliver the Deed and/or
of the concurrent obligation of Purchaser to pay the Purchase Price payable at
closing.
35
<PAGE> 37
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the Effective Date.
SELLER:
EML ASSOCIATES, a New York general
partnership
By: ML/EQ REAL ESTATE PORTFOLIO, LP,
its Managing Venturer
By: EREIM MANAGERS CORP., its
General Partner
By:
Name:
Title:
PURCHASER:
INCOME AND GROWTH FUND II, INC.
By:
Name:
Title:
36
<PAGE> 38
Exhibit B
PERSONAL PROPERTY
37
<PAGE> 39
Exhibit C
LEASE SCHEDULE
<PAGE> 40
Exhibit D
OPERATING AGREEMENTS SCHEDULE
<PAGE> 41
Exhibit E
TENANT ESTOPPEL FORM
__________________________________, 199
[PURCHASER]
Re: Lease dated ______________________________________________ ,199__
(the "Lease") executed between ______________________________________________
("Landlord"), and ("Tenant"), for those premises located at suite _________,
in 16 [18] Sentry Parkway West, Blue Bell, PA.
Gentlemen:
The undersigned Tenant understands that you or your assigns intend to
acquire that property located at 16-18 Sentry Parkway West, Blue Bell, PA (the
"Property") from EML Associates ("Seller"). The undersigned Tenant does hereby
certify to you as follows:
A. The Lease consists only of the documents identified in Items 1
and 2 on Schedule A attached hereto ("Schedule A").
B. The Lease is in full force and effect and has not been modified,
supplemented, or amended except as indicated in Item 2 on
Schedule A.
C. Tenant has not given Landlord written notice of any dispute
between Landlord and Tenant or that Tenant considers Landlord in
default under the Lease.
D. Tenant does not claim any offsets or credits against rents
payable under the Lease.
E. Tenant has not paid a security or other deposit with respect to
the Lease, except as shown on Item 3 of Schedule A.
F. Tenant has fully paid rent on account of the month of _________,
1999; the current base rent under the Lease is shown on Item 4 of
Schedule A.
G. Tenant has not paid any rentals in advance except for the current
month of ________, 1999.
H. Tenant pays escalations above the base year of_________.
Currently, Tenant pays the amount per month shown as Item 7
on Schedule A.
<PAGE> 42
I. The term of the Lease will terminate on the date indicated in
Item 4 on Schedule A.
J. Except as shown in Item 6 on Schedule A, Tenant has no options to
renew or extend the term of the Lease, right to terminate the
Lease, right of first refusal or option to purchase the Property
or any part thereof .
This certificate may be relied upon by you, your mortgagee and Seller
in completing the sale of the Property.
Very truly yours,
By:
Title:
<PAGE> 43
Schedule A
1. Lease:
Landlord:
Tenant: ____________________
Suite #: ____________________
Date: ____________________
2. Modifications and/or Amendments
(a) Date: ____________________
(b) Date: ____________________
(c) Date: ____________________
3. Security Deposit
(currently held by
Landlord) $____________________
4. Monthly Base Rent
for current term
of Lease $____________________
5. Commencement Date: ____________________
Termination Date ______________________
6. Right of First refusal to Lease to Purchase
or option ___________ _____________
(if none, state "None")
If "yes", does such right or option still exist or has such right or
option been exercised or waived?
Still Exists_____ Exercised______ Waived______
7. Right To Terminate _________
8. Current Monthly Share of Common Operating Expenses: $_________
<PAGE> 44
Schedule 4.2(a)
SPECIAL WARRANTY DEED
KNOW ALL MEN BY THESE PRESENTS:
THAT EML ASSOCIATES, a New York general partnership (hereinafter
referred to as "Grantor"), for and in consideration of the sum of Twenty-Nine
Million Three Hundred Thousand Dollars ($29,300,000.00) and other good and
valuable consideration to it in hand paid by ____________, a ____________
(hereinafter referred to as "Grantee"), whose mailing address is____________,
the receipt and sufficiency of which consideration are hereby acknowledged,
and upon and subject to the exceptions, liens, encumbrances, terms and
provisions hereinafter set forth and described, has GRANTED, BARGAINED, SOLD and
CONVEYED, and by these presents does hereby GRANT, BARGAIN, SELL and CONVEY,
unto Grantee all of the real property situated in Montgomery County,
Pennsylvania, described on Exhibit A attached hereto and made a part hereof for
all purposes, together with all and singular the rights, benefits, privileges,
easements, tenements, hereditaments and appurtenances thereon or in any wise
appertaining thereto, and together with all improvements located thereon and any
right, title and interest of Grantor in and to adjacent streets, alleys and
rights-of-way (said land, rights, benefits, privileges, easements, tenements,
hereditaments, appurtenances, improvements and interests being hereinafter
referred to as the "Property").
This conveyance is made subject to the agreements, easements and
restrictions of public record (the "Permitted Exceptions").
TO HAVE AND TO HOLD the Property, subject to the Permitted Exceptions,
as aforesaid, unto Grantee, its successors and assigns, forever; and Grantor
does hereby bind itself and its successors, to WARRANT AND FOREVER DEFEND all
and singular the Property unto Grantee, its successors and assigns, against
every person whomsoever lawfully claiming or to claim the same, or any part
thereof, by, through or under Grantor, but not otherwise.
By acceptance of this Special Warranty Deed, Grantee assumes payment of
all real property taxes on the Property for the year 1999 not due and payable as
of the date hereof and subsequent years.
<PAGE> 45
IN WITNESS WHEREOF, this Special Warranty Deed has been executed by
Grantor to be effective as of the day of _____________, 1999.
EML ASSOCIATES, a New York general
partnership
By: ML/EQ REAL ESTATE PORTFOLIO, LP,
its Managing Venturer
By: EREIM MANAGERS CORP., its
General Partner
By:__________________________
Name:
Title:
<PAGE> 46
STATE OF ______________________ :
: SS.
COUNTY OF ____________________ :
On the ___ day of September, 1999, before me, the subscriber, a Notary
Public in and for the State and County aforesaid, personally appeared _________,
who acknowledge himself/herself to be a ____________ of EREIM Managers Corp., a
corporation and the general partner of ML/EQ Real Estate Portfolio, LP, a
limited partnership which is the managing venturer of EML ASSOCIATES, a New York
general partnership, and that he/she being authorized to do so executed the
foregoing instrument on behalf of the corporation as general partner of the
managing venturer of such general partnership for the purposes therein contained
and desired that it may be recorded.
WITNESS my hand and seal the day and year aforesaid.
________________________________
Notary Public
My Commission Expires:
<PAGE> 47
Schedule 4.2(b)
BILL OF SALE AND ASSIGNMENT
THAT this BILL OF SALE AND ASSIGNMENT (this "Bill of Sale") is made
from EML ASSOCIATES, a New York general partnership ("Assignor")
to ___________________________ , a ("Assignee").
RECITALS
A. Concurrently with the execution and delivery of this Bill of Sale,
Assignor is conveying to Assignee, by Special Warranty Deed (the "Deed") that
certain tract of land (the "Land") more particularly described on Exhibit A
attached hereto and made a part hereof for all purposes, together with the
improvements located thereon (the "Improvements").
B. Assignor desires to assign, transfer and convey to Assignee, and
Assignee desires to obtain the Assigned Properties (as hereafter defined),
subject to the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the receipt of Ten and No/100
Dollars ($10.00) and other good and valuable consideration in hand paid by
Assignee to Assignor, the receipt and sufficiency of which are hereby
acknowledged by Assignor, Assignor does hereby ASSIGN, SELL, TRANSFER, CONVEY,
SET OVER, and DELIVER to Assignee the following (collectively, the "Assigned
Properties"):
(a) The personal property owned by Assignor upon the Land or
within the Improvements, including specifically, without limitation, heating,
ventilation and air conditioning systems and equipment, appliances, furniture,
carpeting, draperies and curtains, tools and supplies, and other items of
personal property (excluding cash) used in connection with the operation of the
Land and the Improvements (collectively, the "Personal Property"); and
(b) All of Assignor's right, title and interest in and to all
assignable warranties and guaranties (express or implied) issued in connection
with the Improvements or the Personal Property, plans and specifications
permits, licenses and certificates of occupancy (collectively, the "Warranties
and Documents"); provided, however, that Assignor makes no representation or
warranty with respect to the existence, availability or assignability of any
Warranties and Documents.
1
<PAGE> 48
EXCEPT AS MAY BE OTHERWISE EXPRESSLY PROVIDED IN THE PURCHASE AND SALE
AGREEMENT DATED JULY ____ , 1999 BETWEEN ASSIGNOR AND ASSIGNEE [ ], ASSIGNOR
MAKES NO WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE IN
RESPECT OF THE PERSONAL PROPERTY, AND THE SAME IS SOLD IN "AS IS, WHERE IS"
CONDITION, WITH ALL FAULTS. BY EXECUTION OF THIS BILL OF SALE, ASSIGNEE AFFIRMS
THAT IT HAS NOT RELIED ON ASSIGNOR'S SKILL OR JUDGMENT TO SELECT OR FURNISH THE
PERSONAL PROPERTY FOR ANY PARTICULAR PURPOSE, AND THAT ASSIGNOR MAKES NO
WARRANTY THAT THE PERSONAL PROPERTY IS FIT FOR ANY PARTICULAR PURPOSE, AND THAT
THE PERSONAL PROPERTY IS BEING SOLD TO ASSIGNEE WITHOUT REPRESENTATION OR
WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY.
This Bill of Sale is made by Assignor and accepted by Assignee subject to
the "Permitted Exceptions" described in the Deed, to the extent that same are
validly existing and affect the Assigned Properties.
TO HAVE AND TO HOLD the Assigned Properties unto Assignee, its successors
and assigns, forever, and Assignor does hereby bind itself and its successors to
WARRANT AND FOREVER DEFEND, all and singular, title to the Assigned Properties
unto Assignee, its successors and assigns, against every person whomsoever
lawfully claiming or to claim the same, or any part thereof by, through or under
Assignor, but not otherwise, subject to the Permitted Exceptions described in
the Deed.
EXECUTED to be effective as of the ____________ day of September, 1999.
ASSIGNOR:
EML ASSOCIATES, a New York general
partnership
By: ML/EQ REAL ESTATE PORTFOLIO, LP,
its Managing Venturer
By: EREIM MANAGERS CORP., its
General Partner
By:__________________________
Name:
Title:
2
<PAGE> 49
Title:
ASSIGNEE:
______________________________,
a ____________________________
By:__________________________
Name:________________________
Title:_______________________
3
<PAGE> 50
Schedule 4.2(c) and (d)
ASSIGNMENT AND ASSUMPTION OF CONTRACTS
THAT this ASSIGNMENT AND ASSUMPTION OF CONTRACTS (this "Assignment") is
made by and between EML ASSOCIATES, a New York general partnership ("Assignor"),
and ________________, a _______________ ("Assignee").
RECITALS
A. Concurrently with the execution and delivery of this Assignment,
Assignor is conveying to Assignee by Special Warranty Deed (the "Deed") that
certain tract of land (the "Land") more specifically described in Exhibit A
attached hereto and made a part hereof for all purposes, together with the
improvements located thereon (the "Improvements") and the personal property
owned by Assignor upon the Land or within the Improvements (the "Personal
Property").
B. Assignor desires to assign, transfer and convey to Assignee, and
Assignee desires to obtain, all of Assignor's right, title and interest in and
to the Contracts (as hereinafter defined), subject to the terms and conditions
set forth herein.
NOW, THEREFORE, for and in consideration of the sum of Ten and No/100
Dollars ($10.00) and other good and valuable consideration to Assignor in hand
paid by Assignee, the receipt and sufficiency of which are hereby acknowledged,
Assignor does hereby SELL, ASSIGN, CONVEY, TRANSFER, SET-OVER and DELIVER unto
Assignee all of Assignor's right, title and interest in and to the following
(collectively, the "Contracts").
(a) all written agreements pursuant to which any portion of
the Land or Improvements is used or occupied by anyone other than Assignor
(collectively, the "Leases"), such Leases being more particularly described in
Exhibit B attached hereto and made a part hereof; provided, however, that
Assignor reserves and retains for itself all claims and causes of action
accruing to Assignor with respect to the Leases prior to the effective date
hereof subject to the terms of the Purchase and Sale Agreement dated July ___,
1999 between Assignor and ASSIGNEE [_______________] Seller and Purchaser
("Purchase Agreement"); and
(b) all assignable contracts and agreements relating to the
upkeep, repair, maintenance or operation of the Land, Improvements or Personal
Property, including specifically, without limitation, all service contracts,
leasing commission agreements and assignable equipment leases (collectively, the
"Operating Agreements") listed as Exhibit B attached hereto
1
<PAGE> 51
and made a part hereof; provided, however, that Assignor makes no representation
or warranty with respect to the assignability of any of the Operating
Agreements.
This Assignment is made by Assignor and accepted by Assignee subject to
the "Permitted Exceptions" described in the Deed, to the extent that same are
validly existing and affect the Contracts.
By execution of this Assignment, Assignee assumes and agrees to perform
all of the covenants, agreements and obligations under the Contracts binding on
Assignor or the Land, Improvements, or Personal Property (such covenants,
agreements and obligations being herein collectively referred to as the
"Contractual Obligations"), to the extent such Contractual Obligations accrue
from and after the date of this Assignment. Without limiting the generality of
the preceding sentence, Assignee acknowledges the receipt of the security
deposits either credited to Assignee's account or delivered to Assignee pursuant
to Section 4.4(b) of the Purchase Agreement and agrees to apply same in
accordance with the terms of the Leases. Assignee hereby agrees to indemnify,
hold harmless and defend Assignor from and against any and all third party
obligations, liabilities, costs and claims (including reasonable attorney's
fees) arising as a result of or with respect to any of the Contractual
Obligations which accrue from and after the date of this Assignment.
Assignor agrees to indemnify, hold harmless and defend Assignee from
and against any and all third party obligations, liabilities, costs and claims
(including reasonable attorney's fees) arising as a result of or with respect to
any of the Contractual Obligations which arose or accrued prior to the date of
this Assignment except as otherwise provided in the Purchase Agreement.
ASSIGNEE ACKNOWLEDGES THAT IT HAS INSPECTED THE CONTRACTS AND THAT THIS
ASSIGNMENT IS MADE BY ASSIGNOR AND ACCEPTED BY ASSIGNEE WITHOUT REPRESENTATION
OR WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, AND WITHOUT RECOURSE
AGAINST ASSIGNOR, EXCEPT AS EXPRESSLY SET FORTH HEREIN AND IN THE PURCHASE
AGREEMENT.
Assignee agrees not to grant any extension or renewal of any of the
Contracts, but shall, instead, provide for any extensions or renewals by means
of new leases or new agreements which will contain no reference to Seller.
TO HAVE AND TO HOLD all and singular the Contracts unto Assignee, its
successors and assigns, and Assignor does hereby bind itself and its successors
to WARRANT AND FOREVER defend all and singular the Contracts unto Assignee, its
successors and assigns, against every person whomsoever lawfully claiming or
attempting to claim the same, or any part thereof, by, through or under
Assignor, but not otherwise, subject to the Permitted Exceptions described in
the Deed.
2
<PAGE> 52
EXECUTED to be effective as of the __ day of September, 1999.
ASSIGNOR:
EML ASSOCIATES, a New York
general partnership
By: ML/EQ REAL ESTATE
PORTFOLIO, LP, its Managing
Venturer
By: EREIM MANAGERS CORP.,
its General Partner
By:_____________________________
Name:
Title:
ASSIGNEE:
________________________________,
a ______________________________
By:_____________________________
Name:___________________________
Title:__________________________
4
<PAGE> 53
Schedule 4.2(f)
TENANT NOTIFICATION LETTER
December __, 1998
[Name and Address of Tenant]
Re: Sale of 16-18 Sentry Parkway, Blue Bell, PA
Gentlemen:
Please be advised that _______________ ("Purchaser") has
purchased the captioned property, in which you occupy space as a tenant pursuant
to a lease dated _____, 199__ (the "Lease), from EML Associates ("EML"), the
previous owner thereof. In connection with such purchase, EML has assigned its
interest as landlord in the Lease to Purchaser and has transferred your security
deposit in the amount of $ (the "Security Deposit") to Purchaser. Purchaser
specifically acknowledges the receipt of and responsibility for the Security
Deposit, the intent of Purchaser and EML being to relieve EML of any liability
for the return of the Security Deposit.
All rental and other payments that become due subsequent to
the date hereof should be payable to _______________ and should be addressed as
follows:
_________________________
_________________________
_________________________
In addition, all notices from you to the landlord concerning
any matter relating to your tenancy should be sent to _________________________
at the following address.
Very truly yours,
[NAME OF PURCHASER]
By:_______________________________
1
<PAGE> 54
Name: ______________________________
Title:______________________________
EML ASSOCIATES, a New York general
partnership
By: ML/EQ REAL ESTATE PORTFOLIO, LP,
its Managing Venturer
By: EREIM MANAGERS CORP., its
General Partner
By:_________________________________
Name:
Title:
2
<PAGE> 55
Schedule 4.2(i)
FIRPTA AFFIDAVIT
KNOW ALL MEN BY THESE PRESENTS:
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 _______________, a _______________ ("Transferee"), that
withholding of tax is not required upon the disposition of a U.S. real property
interest by EML Associates ("Transferor"), the undersigned hereby certifies as
follows:
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: # _______________;
3. Transferor's office address is 1290 Avenue of the Americas, New York,
New York 10019.
Transferor understands that this certification 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, the undersigned, in the capacity set forth below,
hereby declares that he has examined this certification and to the best of his
knowledge and belief it is true, correct, and complete, and the undersigned
further declares that he has authority to sign this document in such capacity.
1
<PAGE> 56
EXECUTED effective as of the _____ day of September, 1999.
EML ASSOCIATES, a New York general
partnership
By: ML/EQ REAL ESTATE PORTFOLIO, LP,
its Managing Venturer
By: EREIM MANAGERS CORP., its
General Partner
By:__________________________
Name:
Title:
SWORN TO AND SUBSCRIBED BEFORE ME this ______ day of September, 1999.
Notary Public in and for the
State of ________________
[Printed or Typed Name of Notary]
My Commission Expires:
2
<PAGE> 57
Schedule 4.3(c)
ERISA STATEMENT
September __, 1999
EML Associates
1290 Avenue of the Americas
New York, New York 10019
Re: Sale of 16-18 Sentry West Parkway, Blue Bell, PA
Gentlemen:
In connection with the sale of the above captioned property
(the "Property") more particularly described on Exhibit A attached hereto by EML
Associates to _______________, a _______________, the undersigned hereby
represents and certifies that (i) it is not acquiring the Property with the
assets of an employee benefit plan as defined in Section 3(3) of the Employee
Retirement Income Security Act of 1974 as amended ("ERISA") and (ii) that it is
a Real Estate Operating Company under ERISA and the regulations promulgated
thereunder.
Very truly yours,
_________________________________
a
By: ______________________________
Name:_____________________________
Title:____________________________
3
<PAGE> 58
FIRST AMENDMENT
TO PURCHASE AND SALE AGREEMENT
THIS AGREEMENT made as of the 29th day of September, 1999 by and
between EML ASSOCIATES ("Seller") and INCOME AND GROWTH FUND II, INC.
("Purchaser").
BACKGROUND OF TRANSACTION
A. Seller and Purchaser entered into a Purchase and Sale Agreement
dated as of August 20, 1999 ("Purchase Agreement").
B. Seller and Purchaser desire to amend certain provisions of the
Purchase Agreement as set forth below.
NOW THEREFORE, the parties hereto, intending to be legally bound,
hereby covenant and agree as follows:
1. Reference is made to an Extension Notice given by Purchaser to
Seller on September 22, 1999, a copy of which is attached hereto as Exhibit A.
("Extension Notice").
2. Purchaser hereby rescinds its disapproval of the tenant estoppel
certificate for Mathieson, Atken, Jemison LLP ("Mathiesan") and hereby approves
that tenant estoppel certificate. In consideration for Purchaser's approval of
it, Seller agrees to credit to Purchaser at Closing the sum of $20,000, and
Purchaser agrees that Purchaser is obligated to perform all future refurbishing
work required under the Mathieson lease.
3. Purchaser hereby rescinds its disapproval of the Acme Hardesty Inc.
("Acme") tenant estoppel certificate, and Purchaser hereby approves it. In
consideration of Purchaser's approval of the Acme tenant estoppel certificate,
Seller hereby agree to credit to Purchaser at Closing the sum of $14,364 and
Purchaser agrees that Purchaser is obligated to perform all future refurbishing
work required under the Acme lease.
4. Purchaser has approved the tenant estoppel certificates set forth on
Exhibit B.
5. Seller hereby acknowledges that Purchaser has validly exercised its
Extension Notice and that Closing is now set for October 28, 1999.
6. Purchaser agrees that to Purchaser's actual knowledge, Seller has
complied to date with Seller's obligations under the Purchase Agreement.
7. If TPA asserts that it is entitled to a credit of $16,020.80
pursuant to an April 21, 1999 memo to TPA Inc. attached hereto as Exhibit C,
Seller and Buyer want to agree who will be responsible for such purported claim.
Seller hereby agrees to credit to Purchaser at Closing the sum of $8,000, and
Purchaser agrees that Purchaser will be responsible for payment of any
<PAGE> 59
remaining tenant improvement allowance which TPA Inc. may successfully
assert up to $16,020.80. If TPA Inc. does not assert a claim, Purchaser will
nevertheless retain the $8,000 credit.
8. Except as expressly amended hereby, the terms of the Purchase
Agreement shall remain in full force and effect without modification.
IN WITNESS WHEREOF, the parties have executed this Agreement the day
and year first above written.
SELLER:
EML ASSOCIATES, a New York general
partnership
By: ML/EQ REAL ESTATE PORTFOLIO, LP,
its Managing Venturer
By: EREIM MANAGERS CORP., its
General Partner
By:
Name:
Title:
PURCHASER:
INCOME AND GROWTH FUND II, INC.
By:
Name:
Title:
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE
REGISTRANTS FORM 10-K FOR THE YEAR ENDED DECEMBER 31, 1997 AND IS QUALIFIED IN
THEENTIRETY BY REFERENCE TO SUCH FINANCIAL STATEMENTS INCLUDED IN SUCH REPORT.
</LEGEND>
<S> <C>
<PERIOD-TYPE> YEAR
<FISCAL-YEAR-END> DEC-31-1999
<PERIOD-START> JAN-01-1999
<PERIOD-END> DEC-31-1999
<CASH> 11,809,525
<SECURITIES> 0
<RECEIVABLES> 3,820,040
<ALLOWANCES> 727,534
<INVENTORY> 0
<CURRENT-ASSETS> 15,142,091
<PP&E> 21,814,303
<DEPRECIATION> 0
<TOTAL-ASSETS> 38,369,475
<CURRENT-LIABILITIES> 1,485,524
<BONDS> 0
0
0
<COMMON> 0
<OTHER-SE> 6,567,926
<TOTAL-LIABILITY-AND-EQUITY> 38,369,475
<SALES> 0
<TOTAL-REVENUES> 20,230,514
<CGS> 0
<TOTAL-COSTS> 9,886,121
<OTHER-EXPENSES> 1,057,596
<LOSS-PROVISION> 21,020,338
<INTEREST-EXPENSE> 0
<INCOME-PRETAX> (11,733,541)
<INCOME-TAX> 0
<INCOME-CONTINUING> (9,571,754)
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> (9,571,754)
<EPS-BASIC> (1.68)
<EPS-DILUTED> 0
</TABLE>
