<PAGE>
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549-1004
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported) April 1, 1998
--------------------------------
FIRST CAPITAL INCOME AND GROWTH FUND - SERIES XII
- --------------------------------------------------------------------------------
(Exact name of registrant as specified in its charter)
Illinois 0-16888 36-3498223
- --------------------------------------------------------------------------------
(State or other jurisdiction (Commission (IRS Employer
of incorporation) File Number) Identification No.)
Two North Riverside Plaza, Suite 1000, Chicago, Illinois 60606-2607
- --------------------------------------------------------------------------------
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code (312) 207-0020
------------------------------
________________________________________________________________________________
(Former name or former address, if changed since last report.)
This document consists of 91 pages.
The Exhibit Index is located on page 3.
<PAGE>
ITEM 2. DISPOSITION OF ASSETS
- ------ ---------------------
First Capital Income and Growth Fund - Series XII (the "Registrant") sold its
interest in the real property commonly known as Meidinger Tower, located in
Louisville, Kentucky to Meidinger Associates, L.L.C., a Utah limited liability
company.
The closing of this transaction occurred on April 1, 1998. Meidinger Tower was
sold for cash to an unrelated party pursuant to arm's-length negotiations. The
sale price was $28,450,000. The Registrant received Sale Proceeds of
approximately $6,150,000, which was net of actual and estimated closing expenses
and the repayment of the mortgage loan collateralized by Meidinger Tower. For
the quarter ending June 30, 1998, the Registrant will record a gain for
financial reporting purposes of approximately $6,750,000 from this transaction.
The Partnership intends to distribute $6,126,500 or $6.45 per Unit on August 31,
1998 to Limited Partners of record as of April 1, 1998.
Page 2
<PAGE>
ITEM 7. PRO FORMA FINANCIAL INFORMATION AND EXHIBITS
- ------ --------------------------------------------
(page 5) Pro Forma Financial Information
Exhibits
2.1 (page 9) Closing Statement, dated April 1, 1998, between the
Registrant and Purchaser.
2.2 (page 18) Contract for Purchase of Real Property, executed on
February 25, 1998, between the Registrant and Meidinger Associates,
L.L.C. (as assigned), a Utah limited liability company
("Purchaser").
No information is required under Items 1, 3, 4, 5, 6 and 8; therefore, those
Items have been omitted.
Page 3
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
FIRST CAPITAL INCOME AND GROWTH FUND - SERIES XII
By:FIRST CAPITAL FINANCIAL CORPORATION
As General Partner
April 14, 1998 By: /s/ NORMAN M. FIELD
- -------------- -----------------------------------
(Date) NORMAN M. FIELD
Vice President - Finance and Treasurer
Page 4
<PAGE>
FIRST CAPITAL INCOME AND GROWTH FUND - SERIES XII
The accompanying unaudited Pro Forma Balance Sheet has been presented as if the
sale of Meidinger Tower had occurred on December 31, 1997. The accompanying
unaudited Pro Forma Statement of Income and Expenses for the year ended December
31, 1997 has been presented as if the sales of Meidinger Tower and Regency Park
Shopping Center ("Regency") (sold in June 1997) had occurred on December 31,
1996. In the opinion of the General Partner, all adjustments necessary to
reflect the financial condition and results of operations of the Partnership
exclusive of Meidinger Tower and Regency have been made. The unaudited pro forma
financial statements are not necessarily indicative of what the actual financial
position and results of operations would have been had such transactions
actually occurred as of December 31, 1997 and December 31, 1996, nor do they
purport to represent the results of operations of the Registrant for future
periods.
Page 5
<PAGE>
FIRST CAPITAL INCOME AND GROWTH FUND - SERIES XII
PRO FORMA BALANCE SHEET
(All dollars rounded to nearest 00s)
ASSETS
<TABLE>
<CAPTION>
Pro Forma
Pro Forma Balance
December 31, Adjustments Sheet
1997 (unaudited) (unaudited)
--------------- -------------- ------------
<S> <C> <C> <C>
Investment in commercial rental properties:
Land $ 12,034,200 $ (958,000) $ 11,076,200
Buildings and improvements 69,717,000 (30,092,500) 39,624,500
--------------- -------------- ------------
81,751,200 (31,050,500) 50,700,700
Accumulated depreciation and amortization (21,860,700) 10,069,500 (11,791,200)
--------------- -------------- ------------
Total investment properties, net of
accumulated depreciation and amortization 59,890,500 (20,981,000) 38,909,500
Cash and cash equivalents 4,879,400 6,163,400 11,042,800
Investment in debt securities 3,948,400 3,948,400
Restricted cash 100,000 100,000
Escrow deposits 552,400 (433,700) 118,700
Rents receivable 379,000 (29,800) 349,200
Other assets (including loan acquisition costs,
net of accumulated amortization of
$919,100 and $718,300, respectively) 356,000 (118,900) 237,100
--------------- -------------- ------------
$ 70,105,700 $ (15,400,000) $ 54,705,700
=============== ============== ============
LIABILITIES AND PARTNERS' CAPITAL
Liabilities:
Mortgage loans payable $ 43,773,700 $ (21,779,000) $ 21,994,700
Front-End Fees Loan payable to Affiliate 13,434,400 13,434,400
Accounts payable and accrued expenses 1,435,200 (326,800) 1,108,400
Due to Affiliates 5,000 5,000
Security deposits 231,800 (50,100) 181,700
Distributions payable 0 6,126,500 6,126,500
Other liabilities 199,000 (73,200) 125,800
--------------- -------------- ------------
59,079,100 (16,102,600) 42,976,500
--------------- -------------- ------------
Partners' capital:
General Partner (deficit) (1,664,600) 77,300 (1,587,300)
Limited Partners (949,843 Units
outstanding) 12,691,200 625,300 13,316,500
--------------- -------------- ------------
11,026,600 702,600 11,729,200
--------------- -------------- ------------
$ 70,105,700 $ (15,400,000) $ 54,705,700
=============== ============== ============
</TABLE>
The accompanying notes are an integral part of the pro forma financial
statements.
Page 6
<PAGE>
FIRST CAPITAL INCOME AND GROWTH FUND - SERIES XII
PRO FORMA STATEMENT OF INCOME AND EXPENSES
(Unaudited)
(All dollars rounded to nearest 00s
except per Unit amounts)
<TABLE>
<CAPTION>
Year Ended December 31, 1997
-------------------------------------------------------------------
Pro Forma
Statement of Meidinger Previous Statement of
Income and Pro Forma Pro Forma Income and
Expenses Adjustments Adjustments Expenses
-------- ----------- ----------- --------
<S> <C> <C> <C> <C>
Income:
Rental $ 12,145,300 $ (4,965,200) $ (285,000) $ 6,895,100
Interest on short-term investments 452,500 (200) 452,300
Gain on sale of property 845,500 (845,500) 0
------------ ------------- ------------ -----------
13,443,300 (4,965,200) (1,130,700) 7,347,400
------------ ------------- ------------ -----------
Expenses:
Interest:
Affiliates 1,040,900 1,040,900
Nonaffiliates 3,479,100 (1,618,600) (170,800) 1,689,700
Depreciation and amortization 2,159,900 (838,600) 1,321,300
Property operating:
Affiliates 493,900 (304,000) (15,500) 174,400
Nonaffiliates 1,500,600 (799,400) (39,400) 661,800
Real estate taxes 1,832,300 (306,500) (30,600) 1,495,200
Insurance - Affiliate 102,300 (39,300) (3,900) 59,100
Repairs and maintenance 1,606,400 (987,300) (21,800) 597,300
General and administrative:
Affiliates 36,600 36,600
Nonaffiliates 151,600 151,600
------------ ------------- ------------ -----------
12,403,600 (4,893,700) (282,000) 7,227,900
------------ ------------- ------------ -----------
Net income $ 1,039,700 $ (71,500) $ (848,700) $ 119,500
============ ============= ============ ===========
Net income allocated to General Partner $ 10,400 $ (700) $ (8,500) $ 1,200
============ ============= ============ ===========
Net income allocated to Limited Partners $ 1,029,300 $ (70,800) $ (840,200) $ 118,300
============ ============= ============ ===========
Net income allocated to Limited
Partners per Unit (949,843 Units
outstanding) $ 1.08 $ (0.07) $ (0.89) $ 0.12
============ ============= ============ ===========
</TABLE>
The accompanying notes are an integral part of the pro forma financial
statements.
Page 7
<PAGE>
FIRST CAPITAL INCOME AND GROWTH FUND - SERIES XII
Notes to Pro Forma Balance Sheet and
Pro Forma Statements of Income and Expenses
1) For the purpose of the Pro Forma Balance Sheet:
a) the accounts for land, buildings and improvements, accumulated
depreciation and amortization, rents receivable, escrow deposits, other
assets, accounts payable and accrued expenses, security deposits and other
liabilities have been adjusted as of December 31, 1997 to reflect the sale of
the Registrant's interest in Meidinger Tower.
b) Cash and cash equivalents has been adjusted to include the Sale Proceeds
of Meidinger Tower received by the Registrant.
c) Distributions payable has been adjusted to reflect the declaration of a
special distribution of Meidinger Tower Sale Proceeds.
2) For the purpose of the Pro Forma Statement of Income and Expenses for the
year ended December 31, 1997, the adjustments to the income and expenses
reflect the Registrant's interest in the operations of Meidinger Tower and
Regency and the gain on the sale of Regency.
Page 8
<PAGE>
- --------------------------------------------------------------------------------
CLOSING STATEMENT INFORMATION
- --------------------------------------------------------------------------------
PROPERTY NAME: MEIDINGER TOWER
SELLER: FIRST CAPITAL INCOME AND GROWTH FUND SERIES XII
an Illinois limited partnership
PURCHASER: MEIDINGER ASSOCIATES, L.L.C.
a Utah limited liability company
PRORATION DATE: 3/31/98
PRORATION AS OF: 11:59 PM, TUESDAY, MARCH 31, 1998
CLOSING DATE: 4/1/98
CLOSING AS OF: WEDNESDAY, APRIL 1, 1998
TAX BEGIN DATE: 7/1/97
TAX END DATE: 6/30/98
MONTH BEGIN DATE 3/1/98
MONTH END DATE 3/31/98
<PAGE>
CLOSING STATEMENT
MEIDINGER TOWER
________________________________________________________________________________
SELLER: FIRST CAPITAL INCOME AND GROWTH FUND SERIES XII
an Illinois limited partnership
PURCHASER: MEIDINGER ASSOCIATES, L.L.C.
a Utah limited liability company
PRORATION DATE: 11:59 PM, TUESDAY, MARCH 31, 1998
CLOSING (FUNDING) DATE: WEDNESDAY, APRIL 1, 1998
________________________________________________________________________________
<TABLE>
<CAPTION>
CREDIT CREDIT
PURCHASER SELLER
--------------- ----------------
<S> <C> <C>
PURCHASE PRICE 28,450,000.00
EARNEST MONEY (held by Commonwealth Land Title Insurance Company) 500,000.00
INTEREST ON EARNEST MONEY POC
PRO-RATE PROPERTY TAXES 29,260.27
[See Schedule A]
PRO-RATE MARCH, 1997 LEASE CHARGES 0.00
[See Schedule D]
TENANT PREPAID RENTS 86,971.70
[See Schedule B]
PRO-RATE SERVICE CONTRACTS 559.96
[See Schedule C]
SECURITY DEPOSITS 54,852.64
[See Schedule D]
TENANT IMPROVEMENTS 10,098.87
[See Schedule E]
--------------- ----------------
SUBTOTALS 671,084.61 28,460,658.83
CASH AMOUNT DUE TO SELLER 27,789,574.22
--------------- ----------------
TOTAL CREDITS 28,460,658.83 28,460,658.83
=============== ================
</TABLE>
NOTES:
- -----
[1] 1998 real estate taxes, personal property taxes and assessments relating to
the Property are to be reprorated or prorated upon receipt of actual
bill(s).
[2] Utility payments shall be directed to the parties for their respective
periods of ownership based upon meter readings ordered the day before the
Closing Date.
[3] Seller agrees to pay all invoices or charges payable to service contract
vendors or other vendors of supplies or services which are unpaid at Closing
and relate to periods prior to and including March 31, 1998, or which relate
to periods after Closing to the extent Seller received a credit from
Purchaser at Closing.
[4] Interest earned on the Earnest Money Deposit shall be returned directly to
Purchaser.
<TABLE>
<CAPTION>
APPROVED: SELLER APPROVED: PURCHASER
<S> <C>
FIRST CAPITAL INCOME AND GROWTH FUND SERIES XII MEIDINGER ASSOCIATES, L.L.C.
an Illinois limited partnership a Utah limited liability company
By: First Capital Financial Corporation By: Meidinger Management, Inc.
a Florida corporation, its general partner a Utah corporation, its manager
By: ______________________________ By: ______________________________
Name: ____________________________ Name: ___________________________
Its: _____________________________ Its: ______________________________
</TABLE>
<PAGE>
________________________________________________________________________________
MEIDINGER TOWER
SOURCES AND USES STATEMENT
________________________________________________________________________________
PURCHASER'S SOURCES AND USES:
----------------------------
<TABLE>
<S> <C> <C>
BALANCE OF CASH TO BE FUNDED BY PURCHASER 27,789,574.22
----------------
ADDITIONAL CASH OUTLAYS BY PURCHASER:
COMMONWEALTH LAND TITLE INSURANCE COMPANY
Title Insurance Premium (50%) 12,802.50
Lender's Title Insurance (100%) 50.00
Title Insurance Policy Endorsements (100%) 2,845.00
Transfer Taxes (50%) 14,225.00
Escrow Fees (50%) 375.00
Copy Charges/Overnight Delivery 55.00
Deed Recording (100%) 400.00
LOAN FEES:
Greenwich Capital Financial Products, Inc. Int. from 4/1/98-4/15/98 99,080.04
GCFP, Inc. Servicing Fee - 4/1/98-4/15/98 1,088.79
GCFP, Inc. - Additional Loan Fee 50,000.00
Compass Bank-Security Deposits 54,852.64
Tenant Improvements and Leasing Commissions Reserve 2,299,011.00
Capital Replacements Reserve 186,025.00
Loan Commitment Fee 139,987.50
Loan Origination Fee 139,987.50
Brokerage Commission 100,000.00
Tax Reserve 29,260.27
Insurance Reserve 17,216.25
Unimark Insurance-Property Insurance 17,678.75
Appraisal Fee-Crosson Dannis, Inc. 8,200.00
Legal Fees-Squadron Ellenoff 67,500.00
Legal Fees-Liechty & McGinnis 31,264.11
Legal Fees-Suitter Axland 14,700.00
Legal Fees-Calister Nebeker 7,451.25
Legal Fees-Friedman Siegelbaum LLP 4,687.50
Legal Fees-Brown, Todd & Heyburn PLLC 6,589.88
Legal Fees-Greenebaum Doll & McDonald PLLC 1,684.74
Reimburse Starwood Capital Group-Out of Pocket Costs 2,000.00
Reimburse Cottnwood Partners (Third Party Due Diligence Costs) 24,086.55
Cottonwood Partners Management Acquisition Fee 284,500.00
SURVEY PAYABLE TO H.E. RUDY, INC. (50%) 370.00
---------------
PURCHASER'S CLOSING COSTS 3,617,974.27
----------------
PURCHASER SOURCES 28,352,475.00
----------------
TOTAL CASH OUTLAY BY PURCHASER 3,055,073.49
================
__________________________________________________________________________________________________________________________
SELLER'S SOURCES AND USES:
EARNEST MONEY 500,000.00
CASH AMOUNT DUE TO SELLER 27,789,574.22
----------------
TOTAL SELLER'S SOURCES 28,289,574.22
----------------
ITEMS PAYABLE FROM SELLER'S PROCEEDS AT CLOSING:
COMMONWEALTH LAND TITLE INSURANCE COMPANY
Title Insurance Premium (50%) 12,802.50
Transfer Taxes (50%) 14,225.00
Escrow Fees (50%) 375.00
Recording Fees 100.00
Copy Charges/Overnight Delivery 55.00
---------------
27,557.50
SURVEY PAYABLE TO H. E. RUDY, INC. (50%) 370.00
BROKER FEE PAYABLE TO GRUBB & ELLIS NEW YORK, INC. 410,000.00
PAYOFF FIRST MORTGAGE TO CITICORP REAL ESTATE , INC. 21,515,933.66
----------------
TOTAL CASH OUTLAY BY SELLER 21,953,861.16
----------------
BALANCE TO SELLER 6,335,713.06
================
</TABLE>
<PAGE>
SCHEDULE A
- --------------------------------------------------------------------------------
MEIDINGER TOWER
PRO-RATE 1997 PROPERTY TAXES
PRORATION MADE AS OF 11:59 PM, TUESDAY, MARCH 31, 1998
- --------------------------------------------------------------------------------
<TABLE>
<S> <C> <C>
1997/1998 REAL ESTATE TAXES
---------------------------
#014l-0005-0000
1998 PAID REAL ESTATE TAXES
---------------------------
City of Louisville (7/1/97-6/30/98) 97,864.76
=============
PURCHASER'S PRORATA SHARE OF 1998 CITY TAXES 91/365 24.932%
-------------
PURCHASER'S SHARE OF 1998 CITY TAXES 24,399.16
SELLER'S SHARE OF 1998 CITY TAXES 73,465.60
CREDIT DUE TO PURCHASER (SELLER) FOR 1998 CITY TAXES (24,399.16)
=============
PAID 1997 COUNTY AND DOWNTOWN REAL ESTATE TAXES
-----------------------------------------------
Louisville Downtown Management District Assessment 16,415.00
Jefferson County Kentucky (County Property Taxes) 201,203.80
-------------
217,618.80
ESTIMATED 1998 COUNTY AND DOWNTOWN TAXES [1]
Louisville Downtown Management District Assessment 16,415.00
Jefferson County Kentucky (County Property Taxes) 201,203.80
-------------
217,618.80
SELLER'S PRORATA SHARE OF 1998 EST. CTY. & DT. TAXES 90/365 24.658%
-------------
SELLER'S SHARE OF1998 EST. CTY. & DT. TAXES 53,659.43
PURCHASER'S SHARE OF 1998 EST. CTY. & DT. TAXES 163,959.37
CREDIT DUE TO PURCHASER (SELLER) FOR 1998 EST. CTY. & DT. TAXES: 53,659.43
=============
TOTAL CREDIT DUE TO PURCHASER (SELLER): 29,260.27
=============
</TABLE>
[1] Purchaser and Seller will reprorate the 1998 real estate taxes after actual
bills are received and paid.
<PAGE>
SCHEDULE B
- --------------------------------------------------------------------------------
MEIDINGER TOWER
TENANT PREPAID RENTS
PRORATION MADE AS OF: 11:59 PM, TUESDAY, MARCH 31, 1998
- --------------------------------------------------------------------------------
<TABLE>
<CAPTION>
AMOUNT
SUITE # TENANT NAME PREPAID
----------------------------------------------------------------------------
<S> <C> <C>
Prepaid Rent:
Arthur Andersen, LLP 13,269.55
Borden Chemical, Inc. 13,305.36
CBM Building Services, Inc. 340.26
Commonwealth Aluminum Inc. 8,062.41
Destineer Corporation 255.00
Dinsmore & Shohl, LLP 80.00
Executive Investment Advisors 1,910.95
Gardner, Ewing & Souza 5,863.10
Harper, Ferguson, Davis 16,371.30
Mainstream Advisors, LLC 48.00
MCI, Inc. 14,566.07
PNC Bank, National Association 9,076.66
Sherman Carter Barnhart, PSC 2,786.07
Storage Technology Corporation 1,036.97
-----------
CREDIT TO PURCHASER 86,971.70
===========
</TABLE>
<PAGE>
SCHEDULE C
---------------------------------------------------------------------------
MEIDINGER TOWER
RECURRING PAYABLES PRORATION
PRORATION MADE AS OF: 11:59 PM, TUESDAY, MARCH 31, 1998
---------------------------------------------------------------------------
SERVICE CONTRACTS
<TABLE>
<CAPTION>
CREDIT DUE
BILLING PERIOD # of DAYS PURCHASER
VENDOR NAME PAYMENT BEGIN END CREDIT or (SELLER)
-----------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
PAID BY SELLER
--------------
AirTouch Paging (40.95) 03/01/98 03/31/98 0 0.00
Abbco Service Corporation (Janitorial) (19,944.35) 03/01/98 03/31/98 0 0.00
Abbco Service Corporation (Day Porter) (1,515.00) 03/01/98 03/31/98 0 0.00
Alpine Interior Folige (Int. Plant Maint. (329.00) 04/01/98 04/30/98 30 (329.00)
Dedden's Window Cleaning (1,865.00) 01/01/98 03/31/98 0 0.00
Dover Elevator Company (5,551.48) 03/01/98 03/31/98 0 0.00
Real Police Security, Inc. (1,503.28) 03/01/98 03/31/98 0 0.00
Courier Journal (Newspaper Sub.) (172.47) 01/01/98 12/31/98 275 (129.94)
----------
CREDIT DUE PURCHASER (SELLER) (458.94)
----------
PAYABLE BY PURCHASER
--------------------
CREDIT DUE PURCHASER (SELLER) 0.00
----------
TOTAL CREDIT DUE PURCHASER (SELLER) (458.94)
==========
</TABLE>
LICENSE, FEE, PERMIT, INSPECTION
<TABLE>
<CAPTION>
CREDIT DUE
BILLING PERIOD # OF DAYS PURCHASER
VENDOR NAME PAYMENT BEGIN END CREDIT or (SELLER)
- ----------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
PAID BY SELLER
--------------
Jungbert Corp (Ann. Insp. Water Backflow) (241.00) 9/1/97 8/31/98 153 (101.02)
----------
CREDIT DUE PURCHASER (SELLER) (101.02)
----------
TOTAL CREDIT DUE PURCHASER (SELLER) (559.96)
==========
</TABLE>
<PAGE>
SCHEDULE D
- --------------------------------------------------------------------------------
MEIDINGER TOWER
RENTAL CHARGE, DEPOSIT RECONCILIATION, AND DELINQUENCY SCHEDULE
PRORATION MADE AS OF: 11:59 PM, TUESDAY, MARCH 31, 1998
<TABLE>
<CAPTION>
- -------------------------------------------------------------------------------------------------------------------------------
MARCH MARCH MARCH PR'S
TENANT MONTHLY ESCALATION OTHER TOTAL CHARGES PRORATA
TENANT DEPOSITS RENT CHARGES INCOME CHARGES PAID SHARE
- -------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
ACSI 12,498.68 7,551.88 6,239.36 720.63 14,511.87 14,511.87 -
Advest, Inc. - 3,957.71 2,796.18 75.00 6,828.89 6,828.89 -
Arthur Andersen, LLP - 6,920.80 5,957.04 391.71 13,269.55 13,269.55 -
Borden Chemical, Inc. - 7,733.84 5,571.52 - 13,305.36 13,305.36 -
Borowitz & Goldsmith, PLC - 6,200.44 5,350.04 427.63 11,978.11 11,978.11 -
CBM Building Service, Inc. - - - 340.26 340.26 340.26 -
City of Louisville - - - 2,116.53 2,116.53 2,116.53 -
Commonwealth Aluminum Inc. - 5,610.75 4,400.14 - 10,010.89 10,010.89 -
Compression, Inc. 6,675.83 - - - - 0.00 -
Data Advantage Corp. 2,959.39 1,942.73 1,305.16 273.35 3,521.24 3,521.24 -
David Corrie - 8,043.43 9,977.80 1,525.39 19,546.62 19,546.62 -
Destineer Corporation - - - 255.00 255.00 255.00 -
Dinsmore & Shohl, LLP - 19,980.00 11,754.90 978.31 32,713.21 32,713.21 -
Encor Technologies, Inc. - 4,454.75 3,916.66 262.59 8,634.00 8,634.00 -
Entex Information Service 4,028.75 2,226.80 2,068.02 297.50 4,592.32 4,592.32 -
Eskew & Gresham - 14,341.00 8,435.02 576.00 23,352.02 23,352.02 -
Executive Investment Advisors 1,050.00 985.75 925.20 - 1,910.95 1,910.95 -
Gardner, Ewing & Souza 4,882.01 2,566.83 2,537.39 758.88 5,863.10 5,863.10 -
<CAPTION>
- --------------------------------------------------------------------
MARCH
& PRIOR TOTAL TOTAL
BALANCE SR'S PR'S
TENANT O/S SHARE O/S SHARE O/S
- --------------------------------------------------------------------
<S> <C> <C> <C>
ACSI 3,484.24 3,484.24 -
Advest, Inc. - - -
Arthur Andersen, LLP - - -
Borden Chemical, Inc. - - -
Borowitz & Goldsmith, PLC - - -
CBM Building Service, Inc. - - -
City of Louisville 137.47 137.47 -
Commonwealth Aluminum Inc. - - -
Compression, Inc. - - -
Data Advantage Corp. - - -
David Corrie - - -
Destineer Corporation - - -
Dinsmore & Shohl, LLP 134.68 134.68 -
Encor Technologies, Inc. - - -
Entex Information Service 245.00 245.00 -
Eskew & Gresham 37.06 37.06 -
Executive Investment Advisors - - -
Gardner, Ewing & Souza - - -
</TABLE>
<PAGE>
SCHEDULE D
- --------------------------------------------------------------------------------
MEIDINGER TOWER
RENTAL CHARGE, DEPOSIT RECONCILIATION, AND DELINQUENCY SCHEDULE
PRORATION MADE AS OF: 11:59 PM, TUESDAY, MARCH 31, 1998
- --------------------------------------------------------------------------------
<TABLE>
<CAPTION>
MARCH MARCH MARCH PR'S
TENANT MONTHLY ESCALATION OTHER TOTAL CHARGES PRORATA
TENANT DEPOSITS RENT CHARGES INCOME CHARGES PAID SHARE
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
Gloria Jean's Coffee Corp. - 810.00 876.00 - 1,686.00 1,686.00 -
Harper, Ferguson & Davis 5,001.35 2,718.13 2,557.97 181.00 5,457.10 5,457.10 -
HCIA, Inc. 4,984.67 2,617.43 2,716.78 480.00 5,814.21 5,814.21 -
Hebel & Homung, PSC - - - 68.54 68.54 68.54 -
ICG Telecom Group, Inc. - 366.00 - - 366.00 366.00 -
Kent Robinson - - - 164.80 164.80 164.80 -
Kentucky Telephone Corporation - - - 133.82 133.82 133.82 -
Lloyd & McDaniel, PLC - 3,216.03 2,947.93 - 6,163.96 6,163.96 -
Louisville Lightwave - 183.00 - - 183.00 0.00 -
Lynch Cox Gilman & Mahan - 9,902.50 8,222.69 158.31 18,283.50 18,283.50 -
MCI, Inc. - 8,843.21 5,107.71 1,061.40 15,012.32 15,012.32 -
Mainstream Advisers, LLC - - - 48.00 48.00 48.00 -
Mercer, William M. Incorporated - 76,745.70 63,980.49 2,214.70 142,940.89 142,940.89 -
Naber Joyner & Schardein - 2,797.00 2,547.39 - 5,344.39 5,344.39 -
Payton Enterprises, Inc. 6,889.74 - - - - 0.00 -
PDR Engineers, Inc. - 5,668.71 4,325.44 176.97 10,171.12 10,171.12 -
PNC Bank - 5,102.54 5,174.12 - 10,276.66 10,276.66 -
Potter & Cox Architects - - - 54.93 54.93 54.93 -
<CAPTION>
MARCH
& PRIOR TOTAL TOTAL
BALANCE SR'S PR'S
TENANT O/S SHARE O/S SHARE O/S
- ----------------------------------------------------------------------------
<S> <C> <C> <C>
Gloria Jeans's Coffee Corp. - - -
Harper, Ferguson & Davis - - -
HCIA, Inc. - - -
Hebel & Homung, PSC - - -
ICG Telecom Group, Inc. 2,470.50 2,470.50 -
Kent Robinson - - -
Kentucky Telephone Corporation - - -
Lloyd & McDaniel, PLC 15.00 15.00 -
Louisville Lightwave 201.00 201.00 -
Lynch Cox Gilman & Mahan - - -
MCI, Inc. - - -
Mainstream Advisers, LLC - - -
Mercer, William M. Incorporated 1,245.90 1,245.90 -
Naber Joyner & Schardein - - -
Payton Enterprises, Inc. 30.00 30.00 -
PDR Engineers, Inc. - - -
PNC Bank - - -
Potter & Cox Architects - - -
</TABLE>
<PAGE>
SCHEDULE D
- --------------------------------------------------------------------------------
MEIDINGER TOWER
RENTAL CHARGE, DEPOSIT RECONCILIATION, AND DELINQUENCY SCHEDULE
PRORATION MADE AS OF: 11:59 PM, TUESDAY, MARCH 31, 1998
- --------------------------------------------------------------------------------
<TABLE>
<CAPTION>
MARCH MARCH MARCH PR'S
TENANT MONTHLY ESCALATION OTHER TOTAL CHARGES PRORATA
TENANT DEPOSITS RENT CHARGES INCOME CHARGES PAID SHARE
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
Roach, Becker & Gallagher 2,370.37 1,806.00 1,770.41 - 3,576.41 3,576.41 -
Ruck, Wilson & Helline - 1,452.08 1,205.76 - 2,657.84 2,657.84 -
Seiller & Handmaker, LLP - 13,145.92 8,435.02 566.74 22,147.68 22,147.68 -
Sherman Carter Bamhart 2,299.68 1,605.60 1,180.47 - 2,786.07 2,786.07 -
Storage Technology Corporation - 491.14 545.83 - 1,036.97 1,036.97 -
United Parcel Service - - - 50.00 50.00 50.00 -
Waterhouse Securities, Inc. 1,212.17 607.37 564.06 - 1,171.43 1,171.43 -
---------------------------------------------------------------------------------------------------
54,852.64 230,595.07 183,392.50 14,357.99 428,345.56 428,162.56 -
<CAPTION>
MARCH
& PRIOR TOTAL TOTAL
BALANCE SR'S PR'S
TENANT O/S SHARE O/S SHARE O/S
- ----------------------------------------------------------------------------
<S> <C> <C> <C>
Roach, Becker & Gallagher - - -
Ruck, Wilson & Helline - - -
Seiller & Handmaker, LLP - - -
Sherman Carter Bamhart - - -
Storage Technology Corporation 10.00 10.00 -
United Parcel Service - - -
Waterhouse Securities, Inc. - - -
-------------------------------------------
8,010.85 8,010.85 -
NOTES:
- ------
</TABLE>
<PAGE>
SCHEDULE E
- --------------------------------------------------------------------------------
MEIDINGER TOWER
TENANT IMPROVEMENT/LEASING COMMISSIONS
PRORATION MADE AS OF: 11:59 PM, TUESDAY, MARCH 31, 1998
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------
AMOUNT DUE
TENANT TO PURCHASER (SELLER)
- --------------------------------------------------------------------------------
<S> <C>
Advest, Inc. - Tenant Improvements 3,715.64
PDR Engineers - Tenant Improvements [1] (12,665.84)
David L. Corrie - Tenant Improvements [1] 12,751.58
Naber, Joyner, Schardein & Stinson- Tenant Improvem 8,237.12
Seiller & Handmaker, LLP - Tenant Improvements 8,030.78
Compression, Inc. - Tenant Improvements 0.00
Compression, Inc. - Leasing Commissions 0.00
Payton Enterprises - Tenant Improvements [1] (23,554.00)
Payton Enterprises - Leasing Commissions [1] (6,614.15)
------------
($10,098.87)
============
</TABLE>
[1] All or portion paid by Seller
<PAGE>
MEIDINGER TOWER
LOUISVILLE, KENTUCKY
REAL ESTATE SALE AGREEMENT
--------------------------
THIS REAL ESTATE SALE AGREEMENT (this "AGREEMENT") is made as of the ____ day
of February, 1998, by and between FIRST CAPITAL INCOME AND GROWTH FUND SERIES
XII, an Illinois limited partnership ("SELLER"), and WallGlen Quorum Partners,
Ltd., a Texas limited partnership ("PURCHASER").
RECITALS
--------
A. Seller is the owner of that certain parcel of real estate (the "REAL
PROPERTY") located in Louisville, Kentucky, which Real Property is more
particularly described in EXHIBIT A attached hereto and made a part hereof, and
---------
upon which is situated an office building containing approximately 331,054
square feet of space commonly known as Meidinger Tower (the "OFFICE BUILDING").
B. Seller desires to sell to Purchaser, and Purchaser desires to purchase from
Seller, the Property (as such term is defined in Section 1 below), each in
accordance with and subject to the terms and conditions set forth in this
Agreement.
THEREFORE, in consideration of the above Recitals, the mutual covenants and
agreements herein set forth and the benefits to be derived therefrom, and other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Purchaser and Seller agree as follows:
1. PURCHASE AND SALE
-----------------
Subject to and in accordance with the terms and conditions set forth in this
Agreement, Purchaser shall purchase from Seller and Seller shall sell to
Purchaser the Real Property, together with: (a) the Office Building, all other
buildings and all other improvements located thereon and any and all of Seller's
rights, easements, licenses and privileges presently thereon or appertaining
thereto; (b) Seller's right, title and interest in and to the leases affecting
the Property or any part thereof (individually, a "LEASE", and collectively, the
"LEASES"); (c) the interest of Seller in all security deposits paid by tenants
under the Leases that are listed on EXHIBIT N attached hereto and which are not
---------
applied by Seller in accordance with the terms of the Leases and/or applicable
law between the date of this Agreement and Closing (the "SECURITY DEPOSITS");
(d) all of Seller's right, title and interest in and to the furniture,
furnishings, fixtures, equipment, maintenance vehicles, tools and other tangible
personally located on the Property and used in connection therewith that are
listed on EXHIBIT K attached hereto (the "TANGIBLE PERSONAL PROPERTY"); (e) all
---------
right, title and interest of Seller under any and all of the maintenance,
service, leasing, brokerage, advertising and other like contracts and agreements
with respect to the ownership and operation of the Property that are listed on
EXHIBIT C attached hereto (the "SERVICE CONTRACTS"); (f) if and to the extent
- ---------
transferable, all of Seller's interest, if any, in and to all warranties and
guaranties relating to the Property; (g) if and to the extent transferable, all
of Seller's interest, if any, in and to all plans, specifications and floor
plans (including any CADD drawings and electronic files containing such CADD
drawings) for the Office Building which are located at the Office Building, if
any; and (h) if and to the extent transferable, all of Seller's right, title and
interest in and to any existing intangible property pertaining to the Property
(the "INTANGIBLE PERSONAL PROPERTY"), including the name "Meidinger Tower", but
specifically excluding any intangible property pertaining in any way to the
rights associated with the name "Equity Office" or the name of any entity
containing the words "Equity Office" as a part thereof; all to the extent
applicable to the period from and after the Closing (as such
1
<PAGE>
term is defined in Section 4(A) below). The Real Property, together with items
(a) through (h) above, shall be collectively referred to in this Agreement as
the "PROPERTY". The term "Property" expressly excludes: (i) all property owned
by tenants or other users or occupants of the Property (except to the extent
that any Security Deposits are deemed to be "owned" by a tenant under applicable
law); (ii) all rights with respect to any refund of taxes applicable to any
period prior to the Closing Date (as defined in Section 4(A) below); and (iii)
all computers and computer-related equipment located at the Property, none of
which control central building or mechanical systems.
2. PURCHASE PRICE
--------------
The purchase price to be paid by Purchaser to Seller for the Property is
Twenty-Eight Million Four Hundred Fifty Thousand Dollars ($28,450,000) (the
"PURCHASE PRICE"). The Purchase Price shall be paid as follows:
A. Earnest Money.
-------------
(i) Upon execution of this Agreement, Purchaser shall deposit earnest
money in the amount of Five Hundred Thousand Dollars ($500,000) (together
with any interest accrued thereon, net of investment costs, if any, the
"EARNEST MONEY") with the Chicago, Illinois National Sales Office of
Commonwealth Land Title Insurance Company (the "ESCROWEE"). To direct the
Escrowee as to the retention, investment and disbursement of the Earnest
Money, Purchaser, Seller and Escrowee shall, concurrently with the
execution of this Agreement, enter into a joint order escrow agreement (the
"JOINT ORDER ESCROW AGREEMENT") in the form attached hereto as EXHIBIT D.
---------
The Earnest Money shall be invested as Seller and Purchaser so direct
pursuant to the terms and provisions of the Joint Order Escrow Agreement.
Any and all interest earned on the Earnest Money shall be reported to
Purchaser's federal tax identification number.
(ii) If the transaction closes in accordance with the terms of this
Agreement, at Closing, the Earnest Money shall be delivered by Escrowee to
Seller as part payment of the Purchase Price. If the transaction fails to
close due to a default on the part of Purchaser and Seller is not otherwise
in default hereunder, the Earnest Money shall be delivered by Escrowee to
Seller, as liquidated and agreed upon damages as more particularly provided
in Section 7(B) below. If the transaction fails to close due to a default
on the part of Seller and Purchaser is not otherwise in default hereunder,
Purchaser shall have the remedies provided for in Section 7(A) below and,
in the event that Purchaser elects or is deemed to have elected option (x)
in Section 7(A) below, the Earnest Money shall be delivered by Escrowee to
Purchaser.
B. Cash at Closing. At Closing, Purchaser shall pay to Seller, by wire
---------------
transferred current federal funds, an amount equal to the Purchase Price,
minus the sum of the Earnest Money which Seller receives at Closing from
the Escrowee, and plus or minus, as the case may require, the closing
prorations and adjustments to be made pursuant to Section 4(C) below.
3. EVIDENCE OF TITLE
-----------------
A. Title Commitment. Seller has, prior to the date of this Agreement,
----------------
obtained and caused to be delivered to Purchaser a commitment for an ALTA
Owner's Title Insurance Policy (the
2
<PAGE>
"TITLE COMMITMENT"), order number EO865582, with an effective date of
December 1, 1997, revised January 23, 1998 in the amount of the Purchase
Price, issued by the Chicago, Illinois National Sales Unit of Commonwealth
Land Title Insurance Company (the "TITLE INSURER"), together with copies of
all underlying documents set forth therein (the "TITLE DOCUMENTS"). At
Closing, the conveyance of the Property to Purchaser shall be subject only
to those exceptions to title which are more fully described on attached
EXHIBIT B and those exceptions to title which become Permitted Exceptions
---------
pursuant to Section 3(C) below (collectively, the "PERMITTED EXCEPTIONS").
B. Survey. Seller has, prior to the date of this Agreement, obtained and
------
caused to be delivered to Purchaser, Seller and the Title Insurer, a survey
of the Real Property (the "DECEMBER SURVEY") prepared by H.E. Rudy, Inc.
Consulting Engineers (the "SURVEYOR"), Job 97113 and dated December 19,
1997. Within two (2) business days of the date this Agreement, Seller
shall request that the Surveyor revise the December Survey in accordance
with EXHIBIT Y attached hereto (such revision to the December Survey being
---------
referred to herein as the "SURVEY"). Prior to Closing and if not already
so certified, the Survey shall be certified to Purchaser (or Purchaser's
assignee hereunder), Purchaser's mortgage lender, Seller and the Title
Insurer on a form of certification reasonably acceptable to Purchaser and
the Surveyor. Such certification shall state that the Survey was made in
accordance with "Minimum Standard Detail Requirements for ALTA/ACSM Land
Title Survey," jointly established and adopted by ALTA/ACSM in 1992, and
includes Items 1, 2, 3, 4, 6, 7(a), 7(b)(1), 7(c), 8, 9, 10, 11, 13 and 14
of Table A thereof, and pursuant to the Accuracy Standards (as adopted by
ALTA and ACSM and in effect on the date of such certification) of an "Urban
Survey".
C. Review of Title Commitment and Survey. If the Survey discloses
-------------------------------------
exceptions to title other than the Existing Permitted Exceptions (as
hereinafter defined) (such other exceptions to title being referred to
herein as the "DISCLOSED EXCEPTIONS"), or if the Survey either does not
resolve all comments on EXHIBIT Y to the reasonable satisfaction of
---------
Purchaser, or does not provide the assurances requested in EXHIBIT Y as
---------
determined by Purchaser in its reasonable discretion (any such unresolved
comments or assurances collectively shall be referred to herein as the
"SURVEY MATTERS"), then Purchaser shall have until 5:00 p.m. (Chicago,
Illinois time) on the third (3rd) business day after its receipt of the
Survey to notify Seller of any such Disclosed Exceptions or Survey Matters
to which Purchaser objects. If any additional exceptions to title other
than the Existing Permitted Exceptions, the Disclosed Exceptions and the
Survey Matters arise between the date of the Title Commitment, the Survey
and the Closing (such exceptions to title being referred to herein as the
"NEW DISCLOSED EXCEPTIONS"), Purchaser shall have five (5) business days
after its receipt of notice of such New Disclosed Exceptions within which
to notify Seller of any such New Disclosed Exceptions to which Purchaser
objects. Any such Disclosed Exceptions, New Disclosed Exceptions and
Survey Matters not objected to by Purchaser as aforesaid shall become
"Permitted Exceptions" hereunder. If Purchaser objects to any such
Disclosed Exceptions, New Disclosed Exceptions or Survey Matters, Seller
shall have until Closing (but in any event at least twenty [20] days after
it receives notice of Purchaser's objection(s)) to remove such Disclosed
Exceptions, Survey Matters and/or New Disclosed Exceptions, which removal
may be accomplished by waiver or endorsement by the Title Insurer
reasonably satisfactory to Purchaser. If Seller fails to remove any such
Disclosed Exceptions, Survey Matters and/or New Disclosed Exceptions as
aforesaid, Purchaser may, as its sole and exclusive remedy, terminate this
Agreement and obtain a return of the Earnest Money. If Purchaser does not
elect to terminate this Agreement, Purchaser shall consummate the Closing
and accept title to the Property subject to all such Disclosed Exceptions,
Survey Matters and/or New Disclosed Exceptions (in which event, all such
Disclosed Exceptions, Survey Matters and New Disclosed Exceptions, together
with the Existing Permitted Exceptions, shall be deemed "PERMITTED
EXCEPTIONS" hereunder). For purposes of this Agreement, the term "EXISTING
PERMITTED EXCEPTIONS" shall mean the items noted on attached EXHIBIT B,
---------
except for those items on EXHIBIT B which have been objected to or
---------
otherwise addressed in EXHIBIT Y and except as the same may be amended in
---------
an updated title commitment. Notwithstanding anything
3
<PAGE>
in this Section 3(C) to the contrary, Seller shall be obligated, at
Closing, to cause the Title Insurer to remove (by waiver or endorsement):
(1) any exceptions to title in connection with Seller's existing
outstanding mortgage financing encumbering the Property; and (2) any
Prohibited Exceptions (as hereinafter defined). For purposes of this
Agreement, the term "PROHIBITED EXCEPTIONS" shall be defined to mean the
following exceptions to title to which Seller has acquiesced or consented
(after receiving written notice of same), if any: (i) the tax liens (other
than liens with respect to real estate taxes not yet due and payable), and
(ii) judgment liens.
4. CLOSING
-------
A. Closing Date. The "CLOSING" of the transaction contemplated by this
------------
Agreement (that is, the payment of the Purchase Price, the transfer of
title to the Property, and the satisfaction of all other terms and
conditions of this Agreement) shall occur on April 1, 1998, at the office
of the Escrowee (in person and/or by telecopy and/or overnight courier) or
at such other time and place as Seller and Purchaser shall agree in
writing. The "CLOSING DATE" shall be the date of Closing. If the date for
Closing above provided for falls on a Saturday, Sunday or legal holiday,
then the Closing Date shall be the next business day.
B. Closing Documents and Deliveries.
--------------------------------
(i) Seller. At Closing, Seller shall deliver to Purchaser the
------
following:
(a) a "special" warranty deed (the "DEED"), subject only to the
Permitted Exceptions and in the form attached hereto as EXHIBIT W;
---------
(b) a limited warranty bill of sale (the "BILL OF SALE") in the
form attached hereto as EXHIBIT J;
---------
(c) a letter advising tenants under the Leases of the change in
ownership of the Property in the form of EXHIBIT L attached hereto;
---------
(d) a letter advising vendors under the Service Contracts of the
change in ownership of the Property in the form of EXHIBIT M attached
---------
hereto;
(e) four (4) counterparts of an assignment and assumption of the
Leases and Security Deposits in the form of EXHIBIT E attached hereto
---------
(the "LEASE ASSIGNMENT"), executed by Seller;
(f) four (4) counterparts of an assignment and assumption of the
Service Contracts in the form of EXHIBIT F attached hereto (the
---------
"SERVICE CONTRACT ASSIGNMENT"), executed by Seller;
(g) an affidavit stating, under penalty of perjury, Seller's U.S.
taxpayer identification number and that Seller is not a foreign person
within the meaning of Section 1445 of the Internal Revenue Code;
(h) four (4) counterparts of a closing statement (the "CLOSING
STATEMENT") to be executed by Seller and Purchaser, containing the
Closing Delinquency Schedule (as defined in Section 4(C)(i)(b) below)
and setting forth the prorations and adjustments to the Purchase Price
as required by Section 4(C) below, executed by Seller;
4
<PAGE>
(i) all executed Estoppel Certificates (as defined in Section
8(B)(i) below) received by Seller as of the Closing Date to the extent
not previously delivered to Purchaser or its counsel;
(j) four (4) counterparts of a letter with respect to Seller's
delivery of information required under 29 C.F.R.
(S)1910.1001(j)(2)(ii) and 29 C.F.R. (S)1926.1101(n)(6) (the "OSHA
LETTER") in the form of EXHIBIT O attached hereto, executed by Seller;
---------
(k) four (4) counterparts of a Quit Claim Assignment of Permits
and General Intangibles (the "PERMIT ASSIGNMENT") in the form of
EXHIBIT R attached hereto;
---------
(l) any transfer tax declaration, real property conveyance
statement or similar document (the "TRANSFER TAX DECLARATION") that
Seller is required by law to execute in order to record the Deed with
the Jefferson County, Kentucky recorder, executed by Seller;
(m) an update of the Rent Roll (as defined in Section 9(A)(vii)
below) the "UPDATED RENT ROLL") dated as of the Closing Date,
certified by Seller to be, to the Actual Knowledge of Seller (as
defined in Section 9(A) below), true and correct (Purchaser hereby
acknowledging that: (1) Seller shall have no liability with respect to
the information set forth in such Updated Rent Roll to the extent that
such information is set forth in an Estoppel Certificate received by
Purchaser, and (2) as more particularly provided in Section 9(C)
below, Seller's liability under such certification shall terminate on
a date no later than the one hundred eightieth day after the Closing
Date); and
(n) all executed Adjacent Property Estoppel Certificates (defined
in Section 8(B)(iii) below) received by Seller as of the Closing Date
to the extent not previously delivered to Purchaser or its counsel.
(ii) Purchaser. Purchaser shall deliver or cause to be delivered to
---------
Seller at Closing:
(a) the funds required pursuant to Section 2(B) above;
(b) four (4) counterparts of the Lease Assignment, executed by
Purchaser;
(c) four (4) counterparts of the Service Contract Assignment,
executed by Purchaser;
(d) four (4) counterparts of the Closing Statement, executed by
Purchaser;
(e) copies of any executed Estoppel Certificates received by
Purchaser as of the Closing Date , if any;
(f) four (4) counterparts of the OSHA Letter, executed by
Purchaser;
(g) four (4) counterparts of the Permit Assignment, executed by
Purchaser;
5
<PAGE>
(h) the Transfer Tax Declaration, executed by Purchaser;
(i) copies of any executed Adjacent Property Estoppel
Certificates received by Purchaser as of the Closing Date; if any;
(j) a release, in form reasonably acceptable to Seller, executed
by Leighton (as defined in Section 6 below) and Miller (as defined in
Section 6 below), releasing Seller, its affiliates and G&E (as defined
in Section 6 below) from any claims in connection with the Property
including, without limitation, any claims for a commission or fee in
connection with the purchase and sale of the Property contemplated
herein; and
(k) a release, in form reasonably acceptable to Seller, executed
by Cottonwood Partners, LLC (on behalf of itself and its affiliates),
releasing Seller, its affiliates and G&E from any claims for a
commission or fee in connection with the purchase and sale of the
Property contemplated herein.
C. Closing Prorations and Adjustments.
----------------------------------
(i) The following items are to be prorated or adjusted (as
appropriate) as of the Closing Date, it being understood that for purposes
of prorations and adjustments, Purchaser shall be deemed the owner of the
Property as of the Closing Date and Seller shall be deemed the owner of the
Property as of the day prior to the Closing Date; provided, however, that
in the event that Seller and Seller's mortgage lender receive the net funds
from the Escrowee after 1 PM (New York, New York time) on the Closing Date
due to delay in delivery of funds or closing documents by or on behalf of
Purchaser, then, for purposes of prorations and adjustments, Seller shall
be deemed the owner of the Property as of the Closing Date and Purchaser
shall be deemed the owner of the Property as of the day after the Closing
Date:
(a) real estate and personal property taxes and assessments
(initially on the basis of the most recent ascertainable tax bill if
the current bill or evidence sufficient to calculate the amount of the
taxes for the period through Closing is not then available);
(b) the "minimum" or "base" rent payable by tenants under the
Leases ("BASE RENT"); provided, however, that rent and all other sums
which are due and payable to Seller by any tenant but uncollected as
of the Closing shall not be adjusted, but Purchaser shall cause the
rent and other sums for the period prior to Closing to be remitted to
Seller if, as and when collected, but only after such rents are first
applied towards any unpaid rents first becoming due and payable
subsequent to the Closing Date. At Closing, Seller shall deliver to
Purchaser a schedule (the "CLOSING DELINQUENCY SCHEDULE") of all such
past due but uncollected rent and other sums owed by tenants (the
"PAST DUE RENTS"). Purchaser shall include the amount of the Past Due
Rents in the first bills thereafter submitted to the tenants in
question after the Closing and shall continue to do so for twelve (12)
months thereafter. Purchaser, upon request of Seller, shall promptly
deliver to Seller a copy of each such bill submitted to tenants.
Purchaser shall promptly remit to Seller any such Past Due Rents paid
by tenants set forth on the Closing Delinquency Schedule, but only if
a deficiency in the then current rent is not thereby created. To the
extent not set forth on the Closing Delinquency Schedule, percentage
or overage rent and Tenant Reimbursements (defined in Section 4(C)(ii)
below) shall be prorated as follows: with respect to percentage
rents, and upon receipt by Purchaser, Purchaser shall furnish to
Seller copies of all sales reports from tenants relative thereto,
including, without limitation, all sales reports with respect to any
6
<PAGE>
tenants whose lease years have expired as of the Closing but whose
sales reports were not available on Closing and sales reports of any
tenants whose lease year expires after Closing, and the amount of any
rents (including, without limitation, percentage or overage rents and
Tenants Reimbursements) to be paid by any tenant shall be made in
accordance with such tenant's Lease as now existing (Purchaser hereby
covenanting and agreeing not to modify the Leases after Closing to
change the date and/or method for payment of such amounts with respect
to the period prior to Closing until after the occurrence of the
reprorations described in Section 4(C)(iii) below) and Purchaser
shall, after Closing, promptly pay to Seller a prorata portion of such
rents, based upon apportionment being made as of the Closing Date,
promptly after the date when such rents are received from the tenant;
(c) with respect to tenant improvement costs and/or allowances or
leasing commissions relating to any new leases, or any modification,
amendment, restatement or renewal of existing Leases (each, a "NEW
LEASE", and collectively, the "NEW LEASES") executed between the date
of this Agreement and Closing with the consent of Purchaser granted
(or deemed to be granted) in accordance with Section 10(L)(1) below,
Seller and Purchaser agree that such costs, allowances and leasing
commissions shall be prorated over the initial term of any such New
Lease with Seller being responsible for a portion of such costs,
allowances and leasing commissions based on the ratio of Base Rent
payments received by Seller through the Closing Date to the total Base
Rent payable over the initial term of the particular New Lease and, in
the event that Seller has paid such costs, allowances and/or leasing
commissions prior to Closing, Purchaser shall reimburse Seller at
Closing for the amount of any such costs, allowances and/or leasing
commissions paid by Seller, based on the above-described proration
and, in the event Seller has not paid such costs, allowances and/or
leasing commissions prior to Closing, Purchaser shall be responsible
for payment of all such costs, allowances and leasing commissions
after Closing;
(d) with respect to the tenant improvement costs and/or
allowances or leasing commissions set forth on EXHIBIT S and EXHIBIT T
--------- ---------
attached hereto relating to the Leases set forth on EXHIBIT S and
---------
EXHIBIT T attached hereto, Seller and Purchaser agree that they each
---------
shall be responsible for a portion of such costs, allowances and
leasing commissions in accordance with the allocations set forth on
EXHIBIT S and EXHIBIT T and: (1) in the event that Seller has, prior
--------- ---------
to Closing, paid more than its portion of such costs, allowances
and/or leasing commissions based on the aforesaid allocations,
Purchaser shall reimburse Seller at Closing for the amount of any such
costs, allowances and/or leasing commissions paid by Seller in excess
of Seller's allocable portion of such costs based on the aforesaid
allocations; and (2) in the event that Seller has not, prior to
Closing, paid its portion of such costs, allowances and/or leasing
commissions based on the aforesaid allocations, Seller shall give
Purchaser a credit at Closing against the Purchase Price in an amount
equal to the portion of Seller's allocable shares set forth on EXHIBIT
-------
S and EXHIBIT T not yet paid by Seller; it being understood that
- ---------
Purchaser shall, in all events be responsible after Closing for
payment of the remaining amount of such costs, allowances and/or
leasing commissions to the proper recipients thereof;
(e) with respect to tenant improvement costs and/or allowances or
leasing commissions payable after Closing to the extent same are known
by Seller and Purchaser as of Closing, other than tenant improvement
costs and/or allowances or leasing commissions payable in accordance
with Sections 4(C)(i)(c) and 4(C)(i)(d) above,
7
<PAGE>
Purchaser shall be responsible for payment of all such costs,
allowances and leasing commissions after Closing and Seller shall
provide Purchaser with a credit at Closing against the Purchase Price
in the amount of such costs, allowances and/or commissions;
(f) the amount of the Security Deposits, if any, with Purchaser
receiving a credit at Closing against the Purchase Price in the amount
of such Security Deposits;
(g) water, sewer, electric, telephone and all other utility and
fuel charges, fees and use charges, fuel on hand (at cost plus sales
tax), and any deposits with utility companies (to the extent possible,
utility prorations will be handled by meter readings on the day
immediately preceding the Closing Date);
(h) amounts paid or payable under the Service Contracts;
(i) amounts paid or payable under agreements with owners of
adjacent properties in the Louisville Galleria, if any, including,
without limitation amounts paid or payable under: (1) that certain
Reciprocal Easement, License and Restriction Agreement dated October
27, 1988 (the "REA") by and between Seller and Oxford Properties,
Inc., a California corporation ("OXFORD"), recorded of record in Deed
Book 5816, Page 496 in the Office of the Clerk of Jefferson County,
Kentucky (the "CLERK'S OFFICE"), (2) that certain Common Areas
Agreement dated October 27, 1988 (the "COMMON AREAS AGREEMENT") by and
between Seller and Oxford recorded of record in Deed Book 5816, Page
456 in the Clerk's Office, and (3) that certain Building Services
Agreement dated October 27, 1988 (the "BUILDING SERVICES AGREEMENT")
by and between Seller and Oxford recorded of record in Deed Book 5816,
Page 405 in the Clerk's Office;
(j) assignable license and permit fees; and
(k) other similar items and expenses of operation.
(ii) Notwithstanding the foregoing and subject to Sections 4(C)(iii)
and 4(C)(iv) below, Seller shall in all events be entitled to retain
amounts paid by tenants for reimbursement of real estate taxes and
assessments, common area maintenance, mall maintenance, utility charges,
water and sewer charges, insurance and merchant's association dues and
assessments and all other charges to or contributions by tenants under the
Leases other than Base Rent (such assessments, costs, expenses, dues and
charges being referred to herein as the "TENANT REIMBURSABLE EXPENSES", and
the amounts payable by tenants under the Leases with respect to the Tenant
Reimbursable Expenses being referred to herein as the "TENANT
REIMBURSEMENTS") as of the Closing.
(iii) As soon as practical after Closing, but in no event later than
May 31, 1999, Seller and Purchaser shall, with respect to any amounts
prorated or adjusted at Closing pursuant to Section 4(C)(i) above based on
estimates or formulae, as applicable, jointly determine and reapportion
such amounts in accordance with Section 4(C)(i) above upon determination of
the actual costs or expenses with respect thereto. In the event that the
amount credited to Purchaser by Seller at Closing exceeds the amount of the
credit that Purchaser should have received had such actual amounts been
available at Closing, Purchaser shall promptly remit such excess amount to
Seller. In the event that the amount credited to Seller by Purchaser at
Closing exceeds the amount of the credit that Seller should have received
at Closing had such actual amounts been available at Closing, Seller shall
promptly remit such excess amount to Purchaser. In the
8
<PAGE>
event that, after such reapportionment: (1) the amount of Tenant
Reimbursements retained by Seller as provided in Section 4(C)(ii) above is
less than the amount of Tenant Reimburseable Expenses paid by Seller
(whether by direct payment by Seller or by proration as provided in Section
4(C)(i) above) with respect to 1998 and the landlord under the Leases is
entitled to recover such difference under the terms of Leases, then
Purchaser shall bill such tenants, provide Seller with copies of such bills
upon issuance, and collect such amounts on behalf of Seller and, upon
receipt, remit such collected amounts to Seller; and (2) the amount of
Tenant Reimbursements collected by Seller for 1998 and retained by Seller
as provided in Section 4(C)(ii) above exceeds the amount of Tenant
Reimburseable Expenses paid by Seller (whether by direct payment by Seller
or by proration as provided in Section 4(C)(i) above) with respect to 1998
then, to the extent required under the terms of the Leases, Seller shall
promptly remit such excess amounts to the applicable tenants; provided
that, to the extent any such excess amounts are otherwise payable to
tenants owing Past Due Rents, Seller may offset the amounts due to such
tenants against Past Due Rents owing to Seller and remitting any remaining
amounts to such tenants.
(iv) Seller shall be responsible for the reconciliation with tenants
of Tenant Reimbursements and Tenant Reimbursable Expenses for the calendar
year 1997, and (a) in the event the amount of Tenant Reimbursements
retained by Seller as provided in Section 4(C)(ii) above is less than the
amount of Tenant Reimbursable Expenses paid by Seller (whether by direct
payment by Seller or by proration as provided in Section 4(C)(i) above)
with respect to 1997 and the landlord under the Leases is entitled to
recover such difference under the terms of the Leases, then Seller shall be
entitled to bill such tenants and retain any such amounts due from tenants,
and (b) in the event that the amount of Tenant Reimbursements collected by
Seller for 1997 and retained by Seller as provided in Section 4(C)(ii)
above exceeds the amount of Tenant Reimbursable Expenses paid by Seller
(whether by direct payment by Seller or by proration as provided in Section
4(C)(i) above) with respect to 1997 then, to the extent required under the
terms of the Leases, Seller shall promptly remit such excess amounts to the
applicable tenants; provided that, to the extent any such excess amounts
are otherwise payable to tenants owing Past Due Rents, Seller may offset
the amounts due to such tenants against Past Due Rents owing to Seller and
remitting any remaining amounts to such tenants.
(v) If Seller has not received all Past Due Rents or other amounts
owed to it by tenants within sixty (60) days after the Closing Date, Seller
at its sole cost and expense, shall be entitled at any time within the
twelve (12) month period after such sixty (60) day period (with respect to
Past Due Rents) or within the twelve (12) month period after such other
amounts are due (with respect to amounts other than Past Due Rents), to
commence such actions or proceedings not affecting possession or enforcing
landlord's liens or resulting in termination of the Lease in question as
Seller shall desire to collect any such Past Due Rents or other amounts,
and Purchaser shall cooperate with Seller in any such action, provided,
however, that: (1) Purchaser shall not be obligated to incur any costs in
connection therewith, and (2) Purchaser shall not be required to join as a
party in any actions or legal proceedings against such tenant.
(vi) Prior to the date hereof, Seller settled an appeal of the
assessed value(s) of the Property with respect to the tax and/or calendar
years set forth on EXHIBIT U attached hereto. In the event that any
---------
refunds of taxes applicable to any period prior to the Closing Date have
not been received by Seller as of the Closing, Seller shall retain all
rights with respect to any refund of such taxes.
9
<PAGE>
(vii) For purposes of this Section 4(C), the amount of any expense
credited by one party to the other shall be deemed an expense paid by that
party. The terms and provisions of this Section 4(C) shall survive the
Closing and delivery of the Deed.
D. Transaction Costs. If, as and when the Closing occurs, Purchaser shall
-----------------
be responsible for and shall pay (i) one-half (1/2) of the cost to prepare
Survey, (ii) one-half (1/2) of the transfer taxes and/or documentary stamps
(the "TRANSFER TAXES") owed in connection with the Deed (and Seller and
Purchaser shall timely execute and deliver such forms and returns as are
necessary in connection therewith), (iii) one-half (1/2) of the base
premium for the owner's title insurance policy to be issued to Purchaser at
Closing (the "TITLE POLICY") and all costs of any and all endorsements
thereto, and (iv) all recording charges for recording the Deed. Seller
shall be responsible for and shall pay (1) one-half (1/2) of the cost to
prepare the Survey, (2) one-half (1/2) of the Transfer Taxes, (3) one-half
(1/2) of the base premium for the Title Policy, and (4) all recording
charges for recording any releases or reconveyances of Seller's existing
mortgage financing, if any. Seller and Purchaser shall each pay one-half
(1/2) of all escrow fees, whether or not the Closing occurs. In addition,
Purchaser and Seller shall each be responsible for the fees of their
respective attorneys.
E. Possession. Upon Closing, Seller shall deliver to Purchaser possession
----------
of the Property, subject only to the Permitted Exceptions.
5. CASUALTY LOSS AND CONDEMNATION
------------------------------
If, prior to Closing, the Property or any part thereof shall be taken by
eminent domain or condemned, or destroyed or damaged by fire or other casualty,
Seller shall promptly so notify Purchaser. In the event that either: (i) the
reasonable cost to restore the Property due to such damage or destruction is
greater than One Million Dollars ($1,000,000) (a "MATERIAL CASUALTY"), or (ii)
any material portion of the building located on the Property is taken or
condemned (a "MATERIAL CONDEMNATION"), then Purchaser shall have the option to
terminate this Agreement by delivery of its written termination notice to Seller
within fifteen (15) days of Seller's written notice thereof. If (a) the
aforementioned casualty is not a Material Casualty, (b) the aforementioned
taking or condemnation is not a Material Condemnation, or (c) Purchaser does not
elect to terminate this Agreement pursuant to the provisions of the preceding
sentence (time being of the essence with respect to any such election), then
Seller and Purchaser shall consummate the transaction contemplated by this
Agreement without abatement of the Purchase Price and Purchaser shall be
entitled during the period following the Inspection Period and prior to Closing
to approve the terms of any property insurance settlement, such approval not to
be unreasonably withheld or delayed, and to receive at Closing the taking,
condemnation or property insurance proceeds (or an assignment of the right to
such proceeds) (less any amounts applied against costs incurred or income lost
by Seller as a result of such occurrence) plus a credit against the Purchase
Price in the amount of any uninsured loss (as to property only) and any
deductible payable by Seller under applicable property insurance, and Seller
shall, at Closing, execute and deliver to Purchaser all customary proofs of
loss, assignments of claims and other similar items. If Purchaser elects to
terminate this Agreement pursuant to the provisions of this Section 5 and
Purchaser is not in default under this Agreement, the Earnest Money shall be
returned to Purchaser by the Escrowee, in which event this Agreement shall,
without further action of the parties, become null and void and neither party
shall have any further rights or obligations under this Agreement except those
rights and obligations which expressly survive termination of this Agreement as
provided herein and Seller's rights under the Confidentiality Agreement (as
defined in Section 8(A) below).
10
<PAGE>
6. BROKERAGE
---------
Seller, pursuant to a separate written agreement (the "G&E BROKER
AGREEMENT"), is obligated to pay upon Closing (but not otherwise) a brokerage
commission to Grubb & Ellis New York, Inc. ("G&E") for services rendered in
connection with the sale and purchase of the Property. Seller shall indemnify
and hold Purchaser harmless from and against any and all claims of G&E related
to Seller's agreement under the G&E Broker Agreement to pay G&E a commission in
connection with the purchase and sale of the Property, including, without
limitation, reasonable attorneys' fees and expenses incurred by Purchaser in
connection with such claim. Purchaser, pursuant to a separate agreement with Mr.
Chris Leighton ("LEIGHTON") and Henry S. Miller Commercial ("MILLER"), is
obligated to pay Leighton and Miller a commission in connection with the
transactions contemplated herein. Purchaser represents and warrants to Seller
that Purchaser does not have any agreement with any broker or finder in
connection with the Property other than the aforesaid agreement with Leighton
and Miller. Seller and Purchaser shall each indemnify and hold the other
harmless from and against any and all claims of all brokers and finders (other
than a claim by Broker against Seller of the type described in the first
sentence of this Section 6, which claim Seller shall be obligated to indemnify
Purchaser against as provided above) claiming by, through or under the
indemnifying party and in any way related to the sale and purchase of the
Property, this Agreement or otherwise, including, without limitation, reasonable
attorneys' fees and expenses incurred by the indemnified party in connection
with such claim, it being expressly understood and agreed that any claims by
Leighton and/or Miller and/or Cottonwood Partners, LLC and/or any of their
affiliates shall be the responsibility of Purchaser hereunder and shall be
subject to the provisions of this Section 6. The provisions of this Section 6
shall survive the Closing and delivery of the Deed or sooner termination of this
Agreement.
7. DEFAULT AND REMEDIES
--------------------
A. Seller Default. Notwithstanding anything to the contrary contained in
--------------
this Agreement, if (i) Seller fails to perform in accordance with the terms
of this Agreement, (ii) Purchaser is not otherwise in default hereunder,
and (iii) the Closing does not occur, then, as Purchaser's sole and
exclusive remedy hereunder and at Purchaser's option, either (x) the
Earnest Money shall be returned to Purchaser, in which event this Agreement
shall be null and void, and neither party shall have any rights or
obligations under this Agreement, or (y) upon notice to Seller not less
than twenty (20) days after Purchaser becomes aware of such failure, and
provided an action is filed within thirty (30) days after Purchaser becomes
aware of such failure, Purchaser may seek specific performance of this
Agreement, but not damages. Purchaser's failure to seek specific
performance as aforesaid shall constitute its election to proceed under
clause (x) above.
B. Purchaser Default. If (i) Purchaser fails to perform in accordance
-----------------
with the terms of this Agreement and Purchaser has not terminated this
Agreement pursuant to a right to terminate hereunder, (ii) Seller is not in
default hereunder, and (iii) the Closing does not occur, the Earnest Money
may be retained by Seller as liquidated and agreed upon damages and as
Seller's sole and exclusive remedy with respect thereto other than those
rights that survive a termination of this Agreement as provided herein and
Seller's rights under the Confidentiality Agreement. If Purchaser is
required to but does not deposit with the Escrowee the Earnest Money as
provided in Section 2(A)(i) above, the sum of Five Hundred Thousand and
No/100 Dollars ($500,000) shall nonetheless be recoverable by Seller from
Purchaser as Earnest Money and without prejudice to Seller's other rights
and remedies. PURCHASER AND SELLER ACKNOWLEDGE AND AGREE THAT (1) THE
EARNEST MONEY IS A REASONABLE ESTIMATE OF AND BEARS A REASONABLE
RELATIONSHIP TO THE DAMAGES THAT WOULD BE SUFFERED AND COSTS INCURRED BY
SELLER AS A RESULT OF HAVING WITHDRAWN THE PROPERTY FROM SALE AND THE
11
<PAGE>
FAILURE OF CLOSING TO OCCUR DUE TO A DEFAULT OF PURCHASER UNDER THIS
AGREEMENT; (2) THE ACTUAL DAMAGES SUFFERED AND COSTS INCURRED BY SELLER AS
A RESULT OF SUCH WITHDRAWAL AND FAILURE TO CLOSE DUE TO A DEFAULT OF
PURCHASER UNDER THIS AGREEMENT WOULD BE EXTREMELY DIFFICULT AND IMPRACTICAL
TO DETERMINE; (3) PURCHASER SEEKS TO LIMIT ITS LIABILITY UNDER THIS
AGREEMENT TO THE AMOUNT OF THE EARNEST MONEY IN THE EVENT THIS AGREEMENT IS
TERMINATED AND THE TRANSACTION CONTEMPLATED BY THIS AGREEMENT DOES NOT
CLOSE DUE TO A DEFAULT OF PURCHASER UNDER THIS AGREEMENT; AND (4) THE
EARNEST MONEY SHALL BE AND CONSTITUTE VALID LIQUIDATED DAMAGES.
PURCHASER INITIALS: SELLER INITIALS:
_________________ _______________
C. Post-Closing Remedies. After Closing, Seller and Purchaser shall,
---------------------
subject to the terms and conditions of this Agreement (including, without
limitation, Section 10(P) below), have such rights and remedies as are
available at law or in equity, except that neither Seller nor Purchaser
shall be entitled to recover from the other consequential or special
damages. The provisions of this Section 7 shall survive the Closing and
delivery of the Deed or sooner termination of this Agreement.
8. CONDITIONS PRECEDENT
--------------------
A. Inspection Period. There presently exists that certain confidentiality
-----------------
letter agreement dated February 13, 1998, and accepted by Purchaser's
affiliate, Starwood Capital Group, LLC ("STARWOOD") (the "CONFIDENTIALITY
AGREEMENT"), a copy of which is attached hereto as EXHIBIT Q. By execution
---------
hereof, Purchaser hereby assumes Starwood's obligations under, and
ratifies, the terms and provisions of the Confidentiality Agreement.
Subject to Section 10(G) below and the provisions of the Confidentiality
Agreement, Purchaser and/or its agents have had the period between November
26, 1997 and the date of this Agreement within which to inspect the
Property and conduct such non-invasive, non-intrusive tests, surveys and
inspections as Purchaser deemed reasonably necessary or appropriate (the
"INSPECTION PERIOD"). During the period between the Inspection Period and
Closing, Purchaser shall have the right to continue to inspect and enter
the Property. By Purchaser's execution hereof, Purchaser acknowledges that
it had an opportunity to inspect the Property and all Disclosures (as
defined in Section 10(H) below) and make such other inquiries and
investigations and obtain such reports and analyses it deemed adequate in
connection with its decision to purchase the Property, and, as a result
thereof, Purchaser agrees that, except as specifically set forth in this
Agreement, it shall purchase the Property in its "AS IS, WHERE IS"
condition, subject to ordinary wear and tear and as more particularly
provided in Section 10(H) below.
B. Estoppel Certificates.
---------------------
(i) It shall be a condition precedent to Purchaser's obligation to
close the purchase and sale transaction contemplated in this Agreement that
Purchaser shall have received, at Closing, estoppel certificates
(individually, an "ESTOPPEL CERTIFICATE" and collectively, the
12
<PAGE>
"ESTOPPEL CERTIFICATES") dated as of a date no more than forty-five (45)
days prior to Closing, from tenants occupying not less than seventy-five
percent (75%) of the net rentable square footage of space at the Property
actually leased as of the end of the Inspection Period pursuant to valid
and existing Leases and in form and content as set forth herein,
specifically including within such seventy-five percent (75%) all such
tenants occupying 10,000 or more net rentable square footage as of the end
of the Inspection Period (collectively, the "REQUIRED TENANTS"). It is
specifically understood and agreed that Southeast Development Corporation
("SOUTHEAST"), and the space demised under its Lease, shall not be included
in determining the Required Tenants or in determining the net rentable
square footage of space at the Property under this Section 8(B)(i). The
Estoppel Certificates executed by tenants shall be substantially in the
form of EXHIBIT G attached hereto (the "FORM TENANT ESTOPPEL CERTIFICATE")
---------
and shall not be materially inconsistent with the Leases, except that an
Estoppel Certificate shall be deemed an acceptable Estoppel Certificate for
purposes of this Section 8(B)(i) if: (1) it contains the qualification by
the tenant of any statement as being to the best of its knowledge or as
being subject to any similar qualification, and/or (2) it contains any
tenant objection to addressing or certifying the Estoppel Certificate to
Purchaser's mortgage lender, if any, or is not addressed or certified to
such mortgage lender (the aforesaid acceptable Estoppel Certificates to be
delivered are collectively referred to as the "REQUIRED ESTOPPEL
CERTIFICATES").
(ii) In the event that Seller is unable to provide to Purchaser the
Required Estoppel Certificates at Closing as provided above and/or the
Adjacent Property Estoppel Certificates as provided below, Purchaser may
either: (x) elect not to purchase the Property, in which event this
Agreement shall be null and void, the Escrowee shall promptly return the
Earnest Money to Purchaser and thereafter neither Seller nor Purchaser
shall have any further rights or obligations under this Agreement, other
than those rights and obligations which expressly survive termination of
this Agreement and the rights and obligations under the Confidentiality
Agreement; or (y) elect to purchase the Property notwithstanding Seller's
inability to provide the Required Estoppel Certificates and/or the Adjacent
Property Estoppel Certificates, in which event Seller shall not be
obligated to provide any additional Estoppel Certificates, or Adjacent
Property Estoppel Certificates, to Purchaser after Closing. The provisions
of this Section 8(B)(ii) shall survive the Closing and delivery of the
Deed.
(iii) Within five (5) business days of execution of this Agreement,
Purchaser shall prepare and provide to Seller proposed forms of estoppel
certificates, in forms reasonably acceptable to Seller and in compliance
with: (1) Section 16(D) of the Common Areas Agreement (with respect to the
estoppel certificate to be obtained under the Common Areas Agreement), (2)
Section 12(D) of the REA (with respect to the estoppel certificate to be
obtained under the REA), and (3) Section 10(D) of the Building Services
Agreement (with respect to the estoppel certificate to be obtained under
the Building Services Agreement). Such estoppel certificates shall be
prepared for execution by the other party or parties to the REA, the Common
Areas Agreement and the Building Services Agreement and are referred to
herein as the "ADJACENT PROPERTY ESTOPPEL CERTIFICATES". Seller, upon
receipt of such estoppel certificates, shall submit same to the other party
or parties thereto, together with a request that such party or parties
execute the estoppel certificates and return them to Seller before Closing.
It shall be a condition precedent to Purchaser's obligation to close the
purchase and sale transaction contemplated in this Agreement that Purchaser
shall have received, at Closing, Adjacent Property Estoppel Certificates
from the other party or parties under the REA, the Common Areas Agreement
and the Building Services Agreement. The Adjacent Property Estoppel
Certificates executed by such other party or parties shall be in
substantially the form approved by Seller as provided above and shall not
be materially inconsistent with the agreements to which they relate, except
that an Adjacent Property Estoppel Certificate shall be deemed acceptable
for purposes of this
13
<PAGE>
Section 8(B)(iii) if: (x) it contains the qualification by the other party
or parties of any statement as being to the best of its knowledge or as
being subject to any similar qualification, and/or (y) it contains any
objection of the other party or parties to addressing or certifying the
Adjacent Property Estoppel Certificate to Purchaser's mortgage lender, if
any, or is not addressed or certified to such mortgage lender.
(iv) If any Estoppel Certificates or Adjacent Property Estoppel
Certificates contain statements or allegations that a default or potential
default exists on the part of Seller under the Lease, REA, Common Areas
Agreement or the Building Services Agreement in question, as applicable,
and (1) the existence or the substance of such allegations or statements
were contained in any Disclosures (as defined in Section 10(H) below) prior
to the end of the Inspection Period, or (2) prior to the end of the
Inspection Period Purchaser otherwise obtained actual knowledge of facts
revealing the substance of such statements or allegations, or (3) Purchaser
elects that Closing occur notwithstanding the existence of such default of
potential default, then such Estoppel Certificates shall be deemed
acceptable for purposes of this Section 8(B), notwithstanding the existence
of such allegations or statements and Seller shall have no liability to
Purchaser hereunder with respect to the existence of such allegations,
statements or information. The provisions of this Section 8(B)(iv) shall
survive the Closing and delivery of the Deed.
C. Accuracy of Seller's Representations. It shall be a condition precedent
------------------------------------
to Purchaser's obligation to close the purchase and sale transaction
contemplated in this Agreement that each of Seller's representations set
forth in Section 9(A) below shall be true and correct in all material
respects as of Closing, as modified by any Inspection Period Disclosures
(as defined in Section 9(B) below) prior to the end of the Inspection
Period. In the event that Seller makes any Pre-Closing Disclosures (as
defined in Section 9(B) below) to Purchaser, Purchaser shall have the right
to terminate this Agreement and receive the return of the Earnest Money by
delivering written notice thereof to Seller on or before the earlier of
Closing or the fifth (5th) business day after Purchaser receives written
notice of such Pre-Closing Disclosure. If Purchaser does not terminate
this Agreement pursuant to its rights under this Section 8(C), then such
representations shall be deemed modified to conform them to the Inspection
Period Disclosures and the Pre-Closing Disclosures. The provisions of this
Section 8(C) shall survive the Closing and delivery of the Deed or sooner
termination of this Agreement.
9. SELLER'S REPRESENTATIONS AND COVENANTS
--------------------------------------
A. Representations. Seller represents to Purchaser that, as of the date
---------------
of this Agreement:
(i) Organization; Authority. Seller is a limited partnership, duly
-----------------------
organized and in good standing under the laws of the State of Illinois.
Seller has the power and authority under Seller's partnership agreement
("SELLER'S ORGANIZATIONAL DOCUMENTS") to sell, transfer, convey and deliver
the Property to be sold and purchased hereunder, and all action and
approvals required thereunder have been duly taken and obtained in order to
sell, transfer, convey and deliver the Property as aforesaid.
(ii) No Breach. The execution and delivery of this Agreement, the
---------
consummation of the transactions contemplated herein and fulfillment of the
terms hereof will not result in a breach of any of the terms or provisions
of, or constitute a default under, any provision of Seller's Organizational
Documents.
14
<PAGE>
(iii) Condemnation. Seller has not received from any governmental
------------
authority any written notice of any pending condemnation or taking by
eminent domain of the Property or any portion thereof.
(iv) Litigation. Except as set forth on EXHIBIT I attached hereto,
---------- ---------
Seller has not been served with written notice of any material litigation
which is still pending against Seller with respect to Seller's ownership or
operation of the Property which will affect the Property after Closing nor
is Seller otherwise a party to any existing litigation with respect to the
Property which will affect the Property after Closing.
(v) No Property Interests. Except as set forth in the Leases and/or
---------------------
the Title Documents, to the Actual Knowledge of Seller (as hereinafter
defined), no person or entity has any rights to purchase all or any portion
of the Property.
(vi) Lease Defaults. To the Actual Knowledge of Seller and except as
--------------
set forth on EXHIBIT X attached hereto, Seller has received no written
---------
notice of a material default by Seller under any of the Leases which has
not been cured prior to the date of this Agreement.
(vii) Rent Roll. Attached hereto as EXHIBIT N is a list (the "RENT
--------- ---------
ROLL") setting forth the following information as of the date of this
Agreement: (1) the name, to the Actual Knowledge of Seller, of each tenant
under each of the Leases as of the date of this Agreement, (2) the Suite
number(s) occupied (or to be occupied, with respect to those tenants who
have not yet taken possession of the space demised under their Lease) by
each such tenant, (3) the monthly Base Rent and estimated operating expense
pass-throughs payable by each tenant with respect to the month of February,
1998, (4) the amount, as of February 13, 1998, of the outstanding monthly
Base Rent and estimated operating expense pass-throughs payable by the
respective tenant(s) with respect to February, 1998, (5) to the Actual
Knowledge of Seller, the approximate square footage demised under the
particular tenant's Lease, (6) the amount of all unapplied Security
Deposits held by Seller with respect to the Leases as of the date hereof,
(7) the expiration dates of the current Lease terms, (8) the monthly
storage rent payable by each tenant with respect to February, 1998, and (9)
the prepaid (that is, paid more than 30 days in advance) Base Rent, storage
rent, and/or estimated operating expense pass-throughs as of February 13,
1998.
(viii) Leases. Prior to the date hereof, Seller has delivered true,
------
correct and complete (to the Actual Knowledge of Seller) copies of the
Leases (except for immaterial amendments thereto).
(ix) Violations of Law. To the Actual Knowledge of Seller and except
-----------------
as set forth on EXHIBIT H attached hereto, Seller has received no written
---------
notice from a governmental authority of a material violation of any state,
federal or local law concerning the Property which has not been cured prior
to the date hereof.
When used in this Agreement, the term "ACTUAL KNOWLEDGE OF SELLER"
shall mean and be limited to the actual (and not imputed, implied or
constructive) current actual knowledge of Alissa Schneider, Vice President-
Dispositions of Equity Office Properties Trust, a Maryland real estate
investment trust ("EOP"). Notwithstanding anything herein to the contrary,
Alissa Schneider shall not (whether prior to or after Closing) have any
personal liability or obligation whatsoever with respect to any matters set
forth in this Agreement or with respect to any of Seller's representations
herein being or becoming untrue, inaccurate or incomplete in any
15
<PAGE>
respect. Any knowledge or notice given to any of Seller's other agents,
servants, representatives or employees shall not be imputed to Seller.
B. Representations Remade. At Closing, Seller shall be deemed to remake
----------------------
and restate the representations set forth in Section 9(A) and as set forth
in the Updated Rent Roll except that the representations shall be updated:
(i) by Seller delivering written notice to Purchaser to reflect any fact,
matter or circumstance which Seller's Chicago, Illinois representatives
become aware of that would make any of Seller's representations contained
in Section 9(A) untrue or incorrect in any material respect, (ii) to
reflect any Disclosures prior to the Inspection Period, (iii) to reflect
any statements or allegations in Estoppel Certificates or in the Adjacent
Property Estoppel Certificates that a default or potential default exists
on the part of Seller under the Leases, the REA, Common Areas Agreement or
the Building Services Agreement in question, as applicable, not previously
disclosed to Purchaser that would otherwise make any of Seller's
representations in Section 9(A) or the Updated Rent Roll untrue in any
material respect, and (iv) to reflect Purchaser's actual knowledge, prior
to the end of the Inspection Period, of facts inconsistent with or
different from the representations set forth herein (items (i) and (iii)
being collectively referred to herein as the "PRE-CLOSING DISCLOSURES" and
items (ii) and (iv) being collectively referred to herein as the
"INSPECTION PERIOD DISCLOSURES").
C. Survival. The representations of Seller set forth in Section 9(A),
--------
subject to modifications thereto as provided in Section 9(B), shall survive
the Closing and the delivery of the Deed for a period of one hundred
eighty (180) days from the Closing Date. In addition, the certification of
Seller set forth in the Updated Rent Roll shall, subject to Section 8(B)
above, survive the Closing and delivery of the Deed for a period of one
hundred eighty (180) days from the Closing Date. Notice of any claim as to
a breach of any such representations must be made to Seller prior to the
expiration of such one hundred eighty (180) day period or it shall be
deemed a waiver of the right to assert such claim.
D. Defaults by tenants under Leases and vendors under Service Contracts.
--------------------------------------------------------------------
Seller does not represent that any particular Service Contract will be in
force or effect as of the Closing or that tenants under Leases or the
parties to the Service Contracts will not be in default under their
respective Leases or Service Contracts, and neither the existence of any
default by any tenant under its Lease nor the default of any party under
any Service Contract shall affect the obligations of Purchaser hereunder;
provided, however, the foregoing shall not affect the conditions contained
-----------------
in Sections 8(B) or 8(C) above. The provisions of this Section 9(D) shall
survive the Closing and delivery of the Deed.
E. Estoppel Certificates supersede representations. In the event that an
-----------------------------------------------
Estoppel Certificate is received from a tenant (before or after Closing)
which confirms the accuracy of the representations made in Section 9(A) (as
modified as provided in Section 9(B)) or the certification set forth in the
Updated Rent Roll, then the representations in Section 9(A) and the
certification in the Updated Rent Roll with respect to the corresponding
Lease (as modified as provided in Section 9(B)) shall be deemed to be
superseded by such Estoppel Certificate (and, in such event, Seller shall
no longer have any liability hereunder with respect to the portion of the
representation superseded). The provisions of this Section 9(E) shall
survive the Closing and delivery of the Deed.
F. Covenants of Seller. From the date of this Agreement until the Closing
-------------------
or earlier termination of this Agreement, Seller shall:
16
<PAGE>
(i) except for depletion, ordinary wear and tear and/or actions
consistent with past practices, not remove any Tangible Personal Property
from the Property or dispose of any Tangible Personal Property unless it is
replaced with a comparable item of equal quality and quantity;
(ii) continue to keep, observe and perform all obligations as lessor
under the Leases in a manner consistent with past practices;
(iii) not enter into any agreements to sell the Real Property or the
improvements located thereon; and
(iv) upon receipt of written notice of same, reasonably promptly
advise Purchaser of any litigation or administrative proceeding that will
affect the Property after Closing.
10. MISCELLANEOUS
-------------
A. Entire Agreement. All understandings and agreements heretofore had
----------------
between Seller and Purchaser with respect to the Property are merged in
this Agreement, which alone fully and completely expresses the agreement of
the parties. Purchaser further acknowledges that, except as expressly
provided in this Agreement, neither Seller nor any agent or representative
of Seller has made, and Seller is not liable for or bound in any manner by,
any express or implied warranties, guaranties, promises, statements,
inducements, representations or information pertaining to the Property.
The provisions of this Section 10(A) shall survive the Closing and delivery
of the Deed.
B. No Assignment. Except for an assignment to a Permitted Assignee (as
-------------
hereinafter defined), neither this Agreement nor any interest hereunder
shall be assigned or transferred by Purchaser without the written consent
of Seller, which consent may be withheld in the sole and absolute
discretion of Seller. For purposes of this Agreement, the term "PERMITTED
ASSIGNEE" shall be defined to mean a partnership, corporation or limited
liability company owned or controlled by Purchaser or in which Purchaser or
an affiliate is a member, shareholder or partner. Upon an assignment to a
Permitted Assignee such Permitted Assignee shall execute and deliver an
agreement to Seller in which such Permitted Assignee assumes all of the
obligations of Purchaser under this Agreement. Upon an assignment of this
Agreement to a Permitted Assignee: (1) Purchaser shall not be relieved of
any subsequently accruing liability under this Agreement, and (2) as used
in this Agreement, the "Purchaser" shall be deemed to include such
Permitted Assignee. Seller may assign or otherwise transfer its interest
under this Agreement. As used in this Agreement, the term "Seller" shall
be deemed to include any assignee or other transferee of any Seller. Upon
any such transfer by a Seller, such Seller shall be relieved of any
subsequently accruing liability under this Agreement. Subject to the
foregoing, this Agreement shall inure to the benefit of and shall be
binding upon Seller and Purchaser and their respective successors and
assigns. The provisions of this Section 10(B) shall survive the Closing
and delivery of the Deed or sooner termination of this Agreement.
C. Amendments. This Agreement shall not be modified or amended except in
----------
a written document signed by Seller and Purchaser.
D. Time of the Essence. Time is of the essence of this Agreement.
-------------------
17
<PAGE>
E. Governing Law. This Agreement shall be governed and interpreted in
-------------
accordance with the laws of the Commonwealth of Kentucky. The provisions
of this Section 10(E) shall survive the Closing and delivery of the Deed or
sooner termination of this Agreement.
F. Notices. All notices, requests, demands or other communications
-------
required or permitted under this Agreement shall be in writing and
delivered (i) personally, (ii) by certified mail, return receipt requested,
postage prepaid, (iii) by overnight courier (such as Federal Express), or
(iv) by facsimile transmission (with a copy sent via (i), (ii) or (iii)),
addressed as follows:
1. If to Seller:
c/o Equity Office Properties Management Corp.
Two North Riverside Plaza
Suite 2200
Chicago, Illinois 60606
Telephone: (312) 466-3595
Facsimile: (312) 559-5051
Attention: Alissa Schneider
With a copy to:
Rosenberg & Liebentritt, P.C.
Suite 1600
Two North Riverside Plaza
Chicago, Illinois 60606
Telephone: (312) 466-3483
Facsimile: (312) 454-0335
Attention: Steven E. Ehrlich
2. If to Purchaser:
c/o Starwood Capital Group, LLC
Three Pickwick Plaza
Suite 250
Greenwich, Connecticut 06830
Telephone: (203) 861-9279
Facsimile: (203) 861-2100
Attention: James Babb
18
<PAGE>
With a copy to:
Liechty & McGinnis, P.C.
10440 North Central Expressway
Dallas, Texas 75231
Telephone: (214) 265-0008
Facsimile: (214) 265-0615
Attention: Kevin McGinnis
With a copy to:
Squadron, Ellenoff, Plesent & Sheinfeld, LLP
551 Fifth Avenue
New York, New York 10176
Telephone: (212) 661-6500
Facsimile: (212) 697-6686
Attention: Alan Katz
All notices given in accordance with the terms hereof shall be deemed
received (1) when delivered, if personally delivered, (2) forty-eight (48)
hours after posting, if sent by certified mail, return receipt requested,
postage prepaid, (3) the next business day after deposit with the courier
company, if sent by overnight courier, and (4) on the day sent, if sent by
facsimile transmission prior to the close of the recipient's business day.
Either party hereto may change the address for receiving notices, requests,
demands or other communication by notice sent in accordance with the terms
of this Section 10(F).
G. Inspections. Purchaser's right of inspection pursuant to Section 8(A)
-----------
above shall be subject to the rights of tenants under the Leases and other
occupants and users of the Property. No inspection shall be undertaken
without reasonable prior notice to Seller. Seller shall have the right to
be present at any or all inspections. Purchaser may contact tenants
directly; provided that Purchaser shall notify Seller forty-eight (48)
hours prior to any such contact so that Seller may have a representative
present during such contact. No inspection shall involve the taking of
samples or other physically invasive procedures without the prior consent
of Seller. Notwithstanding anything to the contrary contained in this
Agreement, Purchaser shall indemnify and hold Seller and its employees and
agents, and each of them, harmless from and against any and all losses,
claims, damages and liabilities (including, without limitation, reasonable
attorneys' fees incurred in connection therewith) arising out of or
resulting from Purchaser's exercise of its rights under this Agreement,
including, without limitation, its rights of inspection as provided for in
Section 8(A) above. Except upon the written request of Seller pursuant to
Section 10(K) below and/or as otherwise provided in this Agreement,
Purchaser shall not deliver to Seller copies of any of the studies,
reports, surveys or other information, data and/or documents relating to
the Property or any part thereof prepared by or at the request of
Purchaser, its employees, agents, representatives or contractors. The
provisions of this Section 10(G) shall survive the Closing and delivery of
the Deed or sooner termination of this Agreement.
H. As-Is Condition. ACKNOWLEDGING THE PRIOR USE OF THE PROPERTY AND
---------------
PURCHASER'S OPPORTUNITY TO INSPECT THE PROPERTY
19
<PAGE>
AND EXCEPT AS SPECIFICALLY PROVIDED IN THIS AGREEMENT, PURCHASER AGREES TO
TAKE THE PROPERTY "AS IS" WITH ALL FAULTS AND CONDITIONS THEREON, SUBJECT
TO USE, ORDINARY WEAR AND TEAR, NATURAL DETERIORATION AND SUCH OTHER
MATTERS AS ARE PERMITTED BY THIS AGREEMENT. ANY INFORMATION, REPORTS,
STATEMENTS, DOCUMENTS OR RECORDS, INCLUDING, WITHOUT LIMITATION, THE ITEMS
SET FORTH IN EXHIBIT P ATTACHED HERETO (COLLECTIVELY, THE "DISCLOSURES")
---------
PROVIDED OR MADE TO PURCHASER OR ITS CONSTITUENTS OR AGENTS BY SELLER, ITS
AGENTS, EMPLOYEES, CONTRACTORS OR REPRESENTATIVES, CONCERNING THE PROPERTY
SHALL NOT BE REPRESENTATION OR WARRANTIES. EXCEPT AS SPECIFICALLY PROVIDED
IN THIS AGREEMENT, PURCHASER SHALL NOT RELY ON SUCH DISCLOSURES, BUT
RATHER, PURCHASER SHALL RELY ONLY ON ITS OWN INSPECTION OF THE PROPERTY.
PURCHASER ACKNOWLEDGES AND AGREES THAT, EXCEPT AS EXPRESSLY PROVIDED IN
THIS AGREEMENT, NEITHER SELLER NOR ITS AGENTS, EMPLOYEES, CONTRACTORS OR
REPRESENTATIVE HAS MADE, AND NONE OF THEM MAKES AND EACH SPECIFICALLY
DISCLAIMS ANY STATEMENTS, REPRESENTATIONS, WARRANTIES, PROMISES, COVENANTS,
AGREEMENTS OR GUARANTIES OF ANY KIND OR CHARACTER WHATSOEVER, WHETHER
EXPRESS OR IMPLIED, ORAL OR WRITTEN, PAST, PRESENT OR FUTURE, OF, AS TO,
CONCERNING OR WITH RESPECT TO (A) THE NATURE, QUALITY OR CONDITION OF THE
PROPERTY, INCLUDING, WITHOUT LIMITATION, THE WATER, SOIL AND GEOLOGY, (B)
THE INCOME HERETOFORE DERIVED OR TO BE DERIVED FROM THE PROPERTY, (C) THE
SUITABILITY OF THE PROPERTY FOR ANY AND ALL ACTIVITIES AND USES WHICH
PURCHASER MAY CONDUCT THEREON, (D) THE COMPLIANCE OF OR BY THE PROPERTY OR
ITS OPERATION WITH ANY LAWS, RULES, ORDINANCES OR REGULATIONS OF ANY
APPLICABLE GOVERNMENTAL AUTHORITY OR BODY, (E) THE HABITABILITY,
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OF THE PROPERTY, OR (F)
ANY OTHER MATTER WITH RESPECT TO THE PROPERTY, AND SPECIFICALLY DISCLAIM
ANY REPRESENTATIONS REGARDING TERMITES OR WASTES, AS DEFINED BY THE U.S.
ENVIRONMENTAL PROTECTION AGENCY REGULATIONS AT 40 C.F.R., OR ANY HAZARDOUS
SUBSTANCE, AS DEFINED BY THE COMPREHENSIVE ENVIRONMENTAL RESPONSE
COMPENSATION AND LIABILITY ACT OF 1980 ("CERCLA"), AS AMENDED, AND
REGULATIONS PROMULGATED THEREUNDER.
PURCHASER, ITS SUCCESSORS AND ASSIGNS, HEREBY WAIVE, RELEASE AND AGREE
NOT TO MAKE ANY CLAIM OR BRING ANY COST RECOVERY ACTION OR CLAIM OR
CONTRIBUTION, INDEMNITY OR OTHER ACTION OR CLAIM AGAINST SELLER OR ITS
AFFILIATES, DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, ATTORNEYS OR ASSIGNS
(A) UNDER ANY FEDERAL, STATE OR LOCAL ENVIRONMENTAL OR HEALTH AND SAFETY
LAW OR REGULATION, INCLUDING CERCLA OR ANY STATE EQUIVALENT, OR ANY SIMILAR
LAW NOW EXISTING OR HEREAFTER ENACTED; (B) WITH RESPECT TO, IN CONNECTION
WITH OR RESULTING FROM ANY DISCHARGE, DISPOSAL, RELEASE OR ESCAPE OF ANY
CHEMICAL, OR ANY HAZARDOUS OR TOXIC MATERIAL WHATSOEVER, ON, AT, TO OR FROM
THE PROPERTY; OR (C) ANY ENVIRONMENTAL CONDITIONS WHATSOEVER ON, UNDER OR
IN THE VICINITY OF THE PROPERTY.
20
<PAGE>
THE PROVISIONS OF THIS SECTION 10(H) SHALL SURVIVE THE CLOSING AND
DELIVERY OF THE DEED OR SOONER TERMINATION OF THIS AGREEMENT.
I. Waiver of Jury Trial. In any lawsuit or other proceeding under or with
--------------------
respect to this Agreement, Purchaser waives any rights it may have to trial
by jury. In addition, Purchaser waives any right to seek recission of the
transaction provided for in this Agreement. The provisions of this Section
10(I) shall survive the Closing and delivery of the Deed or sooner
termination of this Agreement.
J. Confidentiality. Purchaser acknowledges that all information with
---------------
respect to the Property obtained or developed by Purchaser, or furnished or
to be furnished to Purchaser is, has been and will be so furnished on the
condition that Purchaser maintain the confidentiality thereof. Accordingly,
Purchaser shall, and shall cause its directors, officers and other
personnel and representatives to, hold in strict confidence, and not
disclose to any other party without the prior written consent of Seller:
(i) any of the information with respect to the Property delivered to
Purchaser by Seller or any of its agents, representatives or employees, or
(ii) the existence of this Agreement or any term or condition hereof, or
(iii) the results of any inspections or studies undertaken in connection
herewith or any other information obtained or developed by Purchaser. In
addition, neither Purchaser nor Purchaser's directors, officers and other
personnel and representatives shall solicit offers to purchase the Property
to any other party without the prior written consent of Seller.
Notwithstanding the above, Purchaser may disclose such information to
individuals or entities necessary for Purchaser to consummate the
transaction contemplated herein (such as investors, lenders, engineers,
attorneys, prospective management companies, environmental consultants,
accountants and tax advisors) and as required by law. Purchaser shall, with
respect to any parties to whom the existence of this Agreement or any
information with respect to the Property is disclosed, notify such parties
of the existence of the Confidentiality Agreement and its applicability to
any such information provided to any such parties. In the event the Closing
does not occur and this Agreement is terminated, Purchaser shall, upon
written request by Seller, promptly return to Seller all copies of all such
information without retaining any copy thereof or extract therefrom.
Purchaser's obligations under this Section 10(J) shall survive any
termination of this Agreement. Purchaser's obligations under this Section
10(J) shall terminate and be of no further force and effect if the Closing
occurs hereunder.
K. Reports. If for any reason Purchaser does not consummate the Closing,
-------
then Purchaser shall, upon Seller's written request, assign and transfer to
Seller all of its right, title and interest in and to any and all studies,
reports, surveys and other information, data and/or documents relating to
the Property or any part thereof prepared by or at the request of
Purchaser, its employees and agents, and shall deliver to Seller copies of
all of the foregoing. The provisions of this Section 10(K) shall survive
any termination of this Agreement.
L. New Leases. Seller and Purchaser further agree as follows:
----------
1. From and after November 26, 1997 through the Closing, Seller
has delivered or shall deliver, as applicable, to Purchaser for review
(or Cottonwood Partners, LLC, for review on behalf of Purchaser) (a
"NEW LEASE NOTICE") a copy of any proposed New Lease. During the
period between the date of this Agreement and Closing, Purchaser shall
have the right (exercisable in its reasonable discretion) to approve
or disapprove of any New Lease by responding in writing to Seller's
New Lease Notice within five (5) days after Purchaser's receipt of the
New Lease Notice. If
21
<PAGE>
Purchaser fails to approve or disapprove of such New Lease within such
five (5) day period, Purchaser shall be deemed to have conclusively
approved of such New Lease. In the event that Purchaser reasonably
disapproves of such New Lease within such five (5) day period, Seller
shall not enter into such New Lease. If Seller enters into such a New
Lease after Purchaser reasonably disapproves of such New Lease as
provided in the preceding sentence, then Purchaser shall have the
right, within five (5) days after Purchaser's receipt of written
notice of Seller's entering into such New Lease, to terminate this
Agreement. If Purchaser does not so terminate this Agreement,
Purchaser shall be deemed to have conclusively approved of such New
Lease. If Purchaser elects to terminate this Agreement pursuant to the
provisions of this Section 10 (L)(1) and Purchaser is otherwise
entitled hereunder to return of the Earnest Money, the Earnest Money
shall be returned to Purchaser by the Escrowee, in which event this
Agreement shall, without further action of the parties, become null
and void and neither party shall have any further rights or
obligations under this Agreement except those rights and obligations
which expressly survive termination of this Agreement as provided
herein and Seller's rights under the Confidentiality Agreement (as
defined in Section 8(A) above).
2. All tenant improvement costs and/or allowances and leasing
commissions relating to New Leases entered into by Seller between the
date of this Agreement and prior to Closing which Purchaser approves
(or is deemed to approve) in accordance with Section 10(L)(1) above,
shall be prorated in accordance with Section 4(C)(i)(c) above.
M. Reporting Person. Seller and Purchaser hereby designate Escrowee to
----------------
act as and perform the duties and obligations of the "reporting person"
with respect to the transaction contemplated by this Agreement for purposes
of 26 C.F.R. Section 1.6045-4(e)(5) relating to the requirements for
information reporting on real estate transaction closed on or after January
1, 1991. In this regard, Seller and Purchaser each agree to execute at
Closing, and to cause the Escrowee to execute at Closing, a Designation
Agreement, designating Escrowee as the reporting person with respect to the
transaction contemplated by this Agreement.
N. Counterparts. This Agreement may be executed in any number of
------------
identical counterparts, any or all of which may contain signatures of fewer
than all of the parties but all of which taken together shall constitute a
single instrument.
O. No Recording. Neither this Agreement nor a memorandum thereof shall be
------------
recorded against the Property.
P. Limitation of Liability. Purchaser acknowledges and agrees that any
-----------------------
recovery against Seller that Purchaser may be entitled to as a result of
any claim, demand or cause of action that Purchaser may have against Seller
with respect to this Agreement and the transactions contemplated herein
shall only be recoverable against Seller in an amount not in excess of One
Million Five Hundred Thousand ($1,500,000.00). The provisions of this
Section 10(P) shall survive the Closing and the delivery of the Deed.
Q. Conflict. In the event of a conflict between the terms and provisions
--------
of the Confidentiality Agreement and this Agreement, the terms and
provisions of this Agreement shall control.
22
<PAGE>
R. No survival unless specifically provided. Except as specifically
----------------------------------------
provided for in this Agreement, the rights, obligations, representations,
warranties, covenants and agreements of the parties set forth in this
Agreement shall not survive the Closing or any termination of this
Agreement.
S. No third-party beneficiaries. Except as specifically provided herein,
----------------------------
no third parties shall have the benefit of any of the provisions of this
Agreement, nor is this Agreement made with the intent that any person or
entity other than Seller and Purchaser shall rely hereon. The provisions
of this Section 10(S) shall survive the Closing and delivery of the Deed or
sooner termination of this Agreement.
T. Prospective Tenants. Under that certain Leasing Agreement (the "OFFICE
---------------------
LEASING AGREEMENT") dated as of March 1, 1991, originally by and between
Equity Property Management Corp., for itself and as agent for Seller, and
Harry K. Moore Co. ("MOORE") (which Office Leasing Agreement has previously
been provided to Purchaser), the owner of the Property is obligated to pay
a commission to Moore with respect to any "New Lease" (for the purposes of
this Section 10(T) only, such term shall have the same meaning ascribed
thereto in the Office Leasing Agreement) for office space entered into
during the term of the Office Leasing Agreement or within ninety (90) days
after termination of the Office Leasing Agreement. Set forth on EXHIBIT V
---------
attached hereto is a list of prospective tenants provided to Seller by
Moore under Section 3.6 of the Office Leasing Agreement in anticipation of
the Closing. Purchaser agrees to pay Moore a commission in accordance with
the Office Leasing Agreement in the event that the Closing occurs and,
subsequent to Closing, Purchaser enters into such a "New Lease" for office
space with any party set forth on EXHIBIT V attached hereto, as such
---------
EXHIBIT V is revised at or prior to Closing. The provisions of this
---------
Section 10(T) shall survive the Closing and delivery of the Deed.
U. Potential Mechanic's Liens related to Tenant Buildout. Should the
-----------------------------------------------------
timing and/or scope of work to be performed by the lessor under Leases
and/or New Leases require Seller to enter into contracts with contractors
or other parties during the period between expiration of the Inspection
Period and Closing in order to comply with the lessor's obligations under
such Leases and/or New Leases and the work performed under such contracts
will not be completed prior to Closing, Seller shall submit the proposed
contract with such contractor or other parties to Purchaser for its
approval. Purchaser shall have the right (exercisable in its reasonable
discretion) to approve or disapprove of such contract. If Purchaser fails
to approve or disapprove of such contract within five (5) days after its
receipt of same, Purchaser shall be deemed to have conclusively approved of
such contract. In the event Purchaser reasonably disapproves of such
contract within such five (5) day period, Seller shall not enter into such
contract. If Seller enters into such contract after Purchaser reasonably
disapproves of such contract as provided in the preceding sentence, then
Purchaser shall have the right, within five (5) days after Purchaser's
receipt of written notice of Seller's entering into such contract, to
notify Seller in writing as to whether or not it will elect to terminate
the Agreement due to Seller entering into such contract. Upon Seller's
receipt of written notice from Purchaser of Purchaser's intent to terminate
the Agreement as permitted under the preceding sentence, Seller shall have
five (5) days to terminate such contract so as to result in no liability to
Purchaser after Closing under such contract and, in the event that Seller
so terminates such contract within such five (5) day period, Purchaser
shall not be permitted to terminate the Agreement due to Seller entering
into such contract. If Seller does not terminate the contract as provided
above within the five (5) day period, then, if Purchaser is otherwise
entitled hereunder to return of the Earnest Money, the Earnest Money shall
be returned to Purchaser by the Escrowee, in which event this Agreement
shall, without further action of the parties, become null and void and
neither party shall have any further rights
23
<PAGE>
or obligations under this Agreement except those rights and obligations
which expressly survive termination of this Agreement as provided herein
and Seller's rights under the Confidentiality Agreement (as defined in
Section 8(A) above). If a contract approved under this Section 10(U)
requires that Seller pay any amounts under such contract prior to Closing,
Seller shall pay such amounts (and such amounts shall be prorated between
Purchaser and Seller as provided in Sections 4(C)(i)(c) and 4(C)(i)(d)
above). At Closing, Purchaser shall assume the obligations of Seller under
all contracts approved under this Section 10(U) and all Service Contracts
with respect to construction, including the obligation for payment of all
amounts owed under such contracts and Service Contracts after Closing. If
any such approved contract(s) and/or Service Contracts result in work for
which the provider or subcontractor thereunder may obtain a lien against
the Property if such work is not paid for and Purchaser is obligated to pay
for such work as provided in the preceding sentence, then the "Permitted
Exceptions" shall be deemed to include any potential liens and related
notices of commencement as a result thereof. The provisions of this Section
10(U) shall survive the Closing and delivery of the Deed.
V. Southeast Development Lease Default. As of the date of this Agreement,
-----------------------------------
Seller, calculating in accordance with Southeast's Lease, estimates that
Southeast owes Seller the amount of $54,572.31, which amount represents
unpaid rent under Southeast's Lease at the Property with respect to the
period from and after August, 1997. On January 13, 1998, Seller filed a
Petition For & Writ of Forcible Entry & Detainer (the "PETITION") with the
District Court, Court of Justice, Jefferson County, Kentucky (the "COURT"),
a copy of which has previously been provided to Purchaser. Prior to the
date of this Agreement, the Court rendered a judgment in favor of Seller in
forcible detainer wherein Seller obtained possession of the premises
demised under Southeast's Lease, a copy of which has been provided to
Purchaser. Prior to the date of this Agreement, Seller filed a motion with
the Court to obtain a judgment against Southeast in the amount of
$54,572.31. After Closing, Seller shall retain all rights to such
$54,572.31 and any other amounts owed by Southeast under Southeast's Lease,
and Purchaser shall cooperate with Seller in connection with Seller's
recovery of such amounts; provided, however, that Purchaser shall not be
obligated to expend any sums in excess of $500.00 in connection with such
cooperation. The provisions of this Section 10(V) shall survive the
Closing and delivery of the Deed.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY BLANK]
24
<PAGE>
IN WITNESS WHEREOF, Seller and Purchaser have executed and delivered this
Agreement as of the date first above written.
SELLER:
FIRST CAPITAL INCOME AND GROWTH FUND SERIES XII, an
Illinois limited partnership
By: First Capital Financial Corporation, a Florida
corporation, its general partner
By:___________________________________________
Name:_________________________________________
Its:__________________________________________
PURCHASER:
WALLGLEN QUORUM PARTNERS, LTD., a Texas limited
partnership
By: WallGlen Quorum Properties, Inc., a Texas
corporation
By:___________________________________________
Name:_________________________________________
Its:__________________________________________
25
<PAGE>
LIST OF EXHIBITS
----------------
A - Legal Description
B - Permitted Exceptions
C - Service Contracts
D - Joint Order Escrow Agreement
E - Assignment and Assumption of Leases
and Security Deposits
F - Assignment and Assumption of Service Contracts
G - Form Tenant Estoppel Certificate
H - Notices of Violations of Laws
I - List of Litigation
J - Bill of Sale
K - Tangible Personal Property
L - Notice Letter to Tenants
M - Notice Letter to Vendors
N - Rent Roll
O - OSHA Letter
P - Environmental Reports
Q - Confidentiality Agreement
R - Quit Claim Assignment of Permits and General
Intangibles
S - T.I and Commissions - New Leases Approved Prior to
Date of Agreement
T - T.I. and Commissions - Existing Leases
U - Settlement of Assessed Values--Applicable Tax
and/or Calendar Years
V - Prospective Tenant List--Harry K. Moore
W - Special Warranty Deed
X - Lease Defaults - Seller
Y - Revisions to December Survey
26
<PAGE>
EXHIBIT A
LEGAL DESCRIPTION
-----------------
The Real Property is located in the County of Jefferson, State of Kentucky and
described as follows:
PARCEL A:
- --------
Tract A:
-------
BEING Parcel 5 as shown on the Plat of the Louisville Galleria of
record in Plat and Subdivision Book 34, Page 81 in the Office of the
Clerk of Jefferson County, Kentucky; provided, however, that there is
excluded therefrom the following described parcel:
BEING all of the air space at and including the elevation 462.50 to
480.78 City of Louisville Datum and more particularly described as
follows: Beginning at a point in the north line of Parcel 5 as shown
on the Louisville Galleria, a plat of record in Plat and Subdivision
Book 34 Page 81 in the Office of the Clerk of the County Court of
Jefferson County, Kentucky, North 82 degrees 08 minutes 10 seconds
West 38.31 feet as measured along said North line from its
intersection with the centerline of River City Mall (closed in Civil
Action 80C106207) to the true point of beginning; thence leaving said
North line and with the existing faces of a wall the following courses
and distances: South 07 degrees 57 minutes 40 seconds West 0.67 feet;
South 82 degrees 02 minutes 20 seconds East 7.25 feet, South 07
degrees 38 minutes 02 seconds West 30.73 feet, North 82 degrees 20
minutes 28 seconds West 42.67 feet, North 07 degrees 53 minutes 44
seconds East 4.82 feet; North 82 degrees 16 minutes 36 seconds West
37.57 feet, South 07 degrees 52 minutes 48 seconds West 23.77 feet;
North 82 degrees 07 minutes 12 seconds West 4.27 feet, South 07
degrees 15 minutes 24 seconds West 7.23 feet; North 81 degrees 58
minutes 18 seconds West 20.92 feet; South 07 degrees 38 minutes 04
seconds West 4.19 feet; North 81 degrees 44 minutes 45 seconds West
15.02 feet; North 07 degrees 52 minutes 51 seconds East 49.10 feet;
South 82 degrees 12 minutes 34 seconds East 34.22 feet; North 07
degrees 07 minutes 36 seconds East 12.56 feet; South 82 degrees 17
minutes 41 seconds East 14.66 feet; and North 07 degrees 42 minutes 19
seconds East 0.11 feet to its intersection with the North line of
Parcel 5 aforesaid; thence with said North line South 82 degrees 08
minutes 10 seconds East 64.25 feet to the point of beginning.
Tract B:
-------
BEING a portion of Parcel 6, as shown on the Plat of the Louisville
Galleria, of record in Plat and Subdivision Book 34, Page 81, in the
Office of the Clerk of the County Court of Jefferson County, Kentucky
and described as follows:
BEING all of the air space at and including the elevation 481.52 to
498.22 City of Louisville Datum and more particularly described as
follows: Beginning at a point in the North line of Parcel 5 as shown
on the Louisville Galleria, a plat of record in Plat and Subdivision
Book 34, Page 81, in the Office of the Clerk of Jefferson County,
Kentucky, North 82 degrees 08 minutes 10 seconds West 38.13 feet as
measured along said North line from its intersection with the
centerline of River City Mall (closed in Civil Action 80C106207) to
the true point of beginning; thence with said North line North 82
degrees
<PAGE>
08 minutes 10 seconds West 84.00 feet to its intersection with the
East face of an existing wall; thence with said face of wall, North 07
degrees 32 minutes 19 seconds East 13.35 feet to its intersection with
the South face of another existing wall; thence with said face of
wall, South 82 degrees 17 minutes 56 seconds East 83.98 feet to its
intersection with the West face of another existing wall; thence South
07 degrees 27 minutes 17 seconds West 13.59 feet to the point of
beginning.
PARCEL B:
- --------
TOGETHER WITH beneficial appurtenant easements, rights and interests in land
created by and as set out in the following instruments: (i) Special Warranty
Deed and Grant of Easement between Oxford Properties, Inc. and The Commonwealth
of Kentucky, of record in Deed Book 5176, Page 852, as corrected in Special
Warranty Deed of Correction, Grant of Easement and Pedway Deed of record in Deed
Book 5397, Page 600 and in Special Warranty Deed of Correction, Grant of
Easement and Pedway Deed of record in Deed Book 5684, Page 114; (ii) Special
Warranty Deeds between Oxford Properties, Inc. and The City of Louisville,
Kentucky, of record in Deed Book 5179, Page 428 and Deed Book 5179, Page 433, as
corrected in Special Warranty Deed of Correction, Reservations of Easements and
Grant of Easement of record in Deed Book 5397, Page 609 and Special Warranty
Deed of Correction, Reservation and Conveyance of Easement of record in Deed
Book 5670, Page 274; and (iii) Building Services Agreement between Oxford
Properties, Inc. and Brown & Williamson Tobacco Corporation of record in Deed
Book 5321, Page 505, the interest of Brown and Williamson Tobacco Corporation
having been assigned to Batus Realty, Inc. by instrument of record in Deed Book
5549, Page 539, in the aforesaid Clerk's Office.
AND
PARCEL C:
- --------
TOGETHER WITH beneficial appurtenant easements, rights and interests in land
created by and as set out in the following instruments:
Reciprocal Easement, License and Restriction Agreement dated October 27, 1988,
by and between Oxford Properties, Inc., a California corporation, and First
Capital Income and Growth Fund-Series XII, an Illinois limited partnership,
recorded in Deed Book 5816, Page 496, in the aforesaid Clerk's Office.
Common Areas Agreement dated October 27, 1988, by and between Oxford Properties,
Inc., a California corporation, and First Capital Income and Growth Fund-Series
XII, an Illinois limited partnership, recorded in Deed Book 5816, Page 456, in
the aforesaid Clerk's Office.
Building Services Agreement dated October 27, 1988, by and between Oxford
Properties, Inc., a California corporation, and First Capital Income and Growth
Fund-Series XII, an Illinois limited partnership recorded in Deed Book 5816,
Page 405, in the aforesaid Clerk's Office.
2
<PAGE>
Being the same property acquired by FIRST CAPITAL INCOME AND GROWTH FUND-SERIES
XII, an Illinois limited partnership, by Deed dated October 27, 1988, recorded
in Deed Book 5816, Page 393, in the aforesaid Clerk's office.
TAX DATA: District 03, Block 014L, Lot 0005, Sublot 0000.
3
<PAGE>
EXHIBIT B
PERMITTED EXCEPTIONS
--------------------
1. Acts of Purchaser, and those claiming by, through and under Purchaser.
2. City of Louisville Taxes, assessed as of January 1, 1998, which are payable
in November, 1998, but not actually due until January, 1999.
3. State, County and School Taxes assessed as of January 1, 1998, due in
December, 1998.
4. City of Louisville Management District Taxes, assessed as of January 1,
1998, due and payable in January, 1999.
5. Rights of tenants under the Leases.
6. Zoning, building and other governmental and quasi-governmental laws, codes
and regulations.
7. Encroachments, overlaps, boundary line disputes, or other matters which are
disclosed by that certain survey prepared by H.E. Rudy Consulting Engineers
Job 97113 and dated December 19, 1997.
8. Urban Renewal Plan - Galleria Development Project, of record in Deed Book
5144, Page 414, and as shown on plat of record in Right of Way Book 33,
Page 1, 2, 3 and 4, in the Office of the Clerk of Jefferson County,
Kentucky, as modified by Satisfaction and Termination Agreement of record
in Deed Book 5332, Page 578, in the aforesaid Clerk's office.
9. With respect to the "Owner Pedestrian Area" as defined in that certain
Common Areas Agreement dated October 27, 1988, by and between Oxford
Properties, Inc. and First Capital Income Growth Fund-Series XII and
recorded in the Office aforesaid at Deed Book 5816, Page 456, terms and
conditions regarding non-exclusive rights and easements for ingress and
egress, construction, repair, reconstruction, maintenance, use and
operation of Pedway, in Special Warranty Deed between Oxford Properties,
Inc. and The City of Louisville, Kentucky, of record in Deed Book 5179,
Page 428 and Deed Book 5179, Page 433, as corrected in Special Warranty
Deed of Correction, Reservations of Easements and Grant of Easement of
record in Deed Book 5397, Page 609 and Special Warranty Deed of Correction,
Reservation and Conveyance of Easements of record in Deed Book 5670, Page
274, all in the aforesaid Clerk's Office.
10. Easements, restrictions and stipulations imposed by the Plat of The
Louisville Galleria of record in Plat and Subdivision Book 34, Page 81, in
the aforesaid Clerk's Office.
11. With respect to the "Owner Pedestrian Area" as defined in that certain
Common Areas Agreement dated October 27, 1988, by and between Oxford
Properties, Inc. and First Capital Income Growth Fund-Series XI and
recorded in the Office aforesaid at Deed Book 5816, Page 456, any utility
easements lying within River City Mall, now known as Fourth Avenue, as
closed by Judgment in Action No. 80-CI-06207, Jefferson Circuit Court, as
confirmed and granted in Easement dated December 20, 1983, of record in
Deed Book 5397, Page 117, and modified by Encroachment Agreement of record
in Deed Book 5459, Page 853, in the aforesaid Clerk's Office.
<PAGE>
12. Terms and conditions regarding non-exclusive rights and easements for
ingress and egress, construction, repair, reconstruction, maintenance, use
and operation of Pedway, in Special Warranty Deed and Grant of Easement
between Oxford Properties, Inc. and The Commonwealth of Kentucky, of record
in Deed Book 5176, Page 852, as corrected in Special Warranty Deed of
Correction, Grant of Easement and Pedway Deed of record in Deed Book 5397,
Page 600 and Special Warranty Deed of Correction, Grant of Easement and
Pedway Deed of record in Deed Book 5684, Page 114, all in the aforesaid
Clerk's Office.
13. Easement to construct and maintain electric transmission lines granted
Louisville Gas and Electric Company, of record in Deed Book 5200, Page 940,
in the aforesaid Clerk's Office.
14. Easement for water lines granted City of Louisville and Louisville Water
Company, of record in Deed Book 5271, Page 311 in the aforesaid Clerk's
Office.
15. Terms and conditions of a Reciprocal Easement, License and Restriction
Agreement dated October 27, 1988, by and between Oxford Properties, Inc., a
California corporation, and First Capital Income and Growth Fund-Series
XII, an Illinois limited partnership, of record in Deed Book 5816, Page
496, in the aforesaid Clerk's Office.
16. Common Areas Agreement dated October 27, 1988 by and between Oxford
Properties, Inc., a California corporation, and First Capital Income and
Growth Fund-Series XII, an Illinois limited partnership, of record in Deed
Book 5816, Page 456, in the aforesaid Clerk's Office.
17. Building Services Agreement dated October 27, 1988 by and between Oxford
Properties, Inc., a California corporation, and First Capital Income and
Growth Fund-Series XII, an Illinois limited partnership, of record in Deed
Book 5816, Page 405, in the aforesaid Clerk's Office.
18. Terms and conditions of unrecorded Leases and of an Assignment, Assumption,
and Acceptance made by Oxford Properties, Inc., a California corporation in
favor of First Capital Income and Growth Fund-Series XII, an Illinois
limited partnership, evidenced by a Short Form Assignment, Assumption and
Acceptance, dated October 27, 1988, of record in Deed Book 5816, Page 551,
in the Office aforesaid.
19. Terms and conditions of an Agreement for Last Offer, dated October 27,
1988, by and between Oxford Properties, Inc., a California corporation, and
First Capital Income and Growth Fund-Series XII, an Illinois limited
partnership, of record in Deed Book 5816, Page 560, in the aforesaid
Clerk's Office.
20. Terms and conditions of a Lease from Oxford Properties, Inc. to Meidinger,
Inc., a Kentucky corporation, which by merger is now William M. Mercer
Meidinger Hansen, Inc., a Delaware corporation, evidenced by a Short Form
Lease, dated August 4, 1981, of record in Deed Book 5265, Page 457, which
has been amended by Amendment to Short Form Lease dated December 27, 1983,
of record in Deed Book 5398, Page 884 and by Second Amendment to Short Form
Lease, dated January 25, 1989, of record in Deed Book 5843, Page 864, in
the Office aforesaid.
21. Terms and conditions of a Lease dated June 27, 1994, First Capital Income
and Growth Fund-Series XII to American Communication Services of
Louisville, Inc., evidenced by a Memorandum of Lease, dated September 1,
1994, of record in Deed Book 6510, Page 90, in the Office aforesaid.
2
<PAGE>
EXHIBIT C
MEIDINGER TOWER
SERVICE CONTRACTS
-----------------
<TABLE>
<CAPTION>
----------------------------------------------------------------------
VENDOR NAME TYPE OF SERVICE
----------------------------------------------------------------------
<S> <C>
Airtouch Paging Paging Service
----------------------------------------------------------------------
Dedden's Window Cleaning, Inc. Window Cleaning
----------------------------------------------------------------------
Abbco Service Corp. Janitorial Services
----------------------------------------------------------------------
Okolona Pest Control, Inc. Pest Control Services
----------------------------------------------------------------------
Alpine Interior Foliage, Inc. Interior Plant Maintenance
----------------------------------------------------------------------
On-Site Electrostatic Painting Metal (Brass) Maintenance
----------------------------------------------------------------------
Dover Elevator Elevator Maintenance (oral
agreement; month-to-month)
----------------------------------------------------------------------
Real Police Security, Inc. Security Service
----------------------------------------------------------------------
Bornstein Building Company, Inc. TI Contractor (general
agreement)
----------------------------------------------------------------------
Kabar Construction, Inc. TI Contractor (general
agreement)
----------------------------------------------------------------------
Puritan Cleaners Cleaning
----------------------------------------------------------------------
Bornstein Building Company, Inc. TI Contractor Payton
Enterprises Buildout
----------------------------------------------------------------------
</TABLE>
<TABLE>
<CAPTION>
----------------------------------------------------------------------
OTHER AGREEMENTS TYPE OF SERVICE
----------------------------------------------------------------------
<S> <C>
Airborne Express Drop Box Agreement
----------------------------------------------------------------------
City of Louisville Antenna Agreement
----------------------------------------------------------------------
Destineer Antenna Agreement
----------------------------------------------------------------------
Entex Information Services Antenna Agreement
----------------------------------------------------------------------
Federal Express Drop Box Agreement
----------------------------------------------------------------------
ICG Telecom Group, Inc. Antenna Agreement
----------------------------------------------------------------------
J.E. Stallion International Gallery License/Art for building
----------------------------------------------------------------------
Kentucky Telephone Corp. Antenna Agreement
----------------------------------------------------------------------
Louisville Light Wave Antenna Agreement
----------------------------------------------------------------------
MCI Telecommunications Corp. Roof Top Communication
Equipment License
----------------------------------------------------------------------
Spectrum Engineering Company Communication Site
Management Agreement
----------------------------------------------------------------------
United Parcel Service, Inc. Drop Box
----------------------------------------------------------------------
</TABLE>
<PAGE>
EXHIBIT D
JOINT ORDER ESCROW AGREEMENT
----------------------------
MEIDINGER TOWER
LOUISVILLE, KENTUCKY
Date: February ___, 1998
TO: Commonwealth Land Title
Insurance Company
30 North LaSalle Street
Suite 3440
Chicago, Illinois 60602
Attention: Lawrence Vaughan, Esq.
The amount of Five Hundred Thousand Dollars ($500,000.00) (the "ESCROW DEPOSIT")
is deposited with you in escrow on behalf of WallGlen Quorum Partners, Ltd., a
Texas limited partnership (the "PURCHASER"), under that Real Estate Sale
Agreement (the "CONTRACT") dated of even date herewith by and between Purchaser
and First Capital Income and Growth Fund Series XII, an Illinois limited
partnership ("SELLER"), with respect to the purchase and sale of the property
commonly known as Meidinger Tower, Louisville, Kentucky.
As escrowee, you are hereby directed to hold, deal with and dispose of the
Escrow Deposit in accordance with the following terms and conditions:
1. You are to hold the Escrow Deposit until: (a) you are in receipt of a joint
order by the Seller and Purchaser as to the disposition of the Escrow
Deposit; or (b) you are in receipt of a written demand (the "DEMAND") from
either Seller or Purchaser for the payment of the Escrow Deposit or any
portion thereof. Upon receipt of any Demand, you are directed to so notify
the non-demanding party, enclosing a copy of the Demand. If within five
(5) business days after the non-demanding party has received or is deemed
to have received your notice of your receipt of the Demand, you have not
received from the non-demanding party its notice of objection to the
Demand, then you are to disburse the Escrow Deposit as requested by the
Demand. If within said five business-day period you receive from the non-
demanding party its notice of objection to the Demand, then you are to
continue to hold the Escrow Deposit until you are in receipt of a joint
order as aforesaid, but after sixty (60) days you may deposit the Escrow
Deposit with a Court of competent jurisdiction.
2. Notwithstanding the foregoing, as escrowee, you are hereby expressly
authorized to regard and to comply with and obey any and all orders,
judgments or decrees entered or issued by any Court, and in case you obey
or comply with any such order, judgment or decree of any Court, you shall
not be liable to either of the parties hereto or any other person or entity
by reason of such compliance, notwithstanding any such order, judgment or
decree be entered without jurisdiction or be subsequently reversed,
modified, annulled, set aside or vacated. In case of any suit or
proceeding regarding these Escrow Instructions, to which you are or may at
any time be a party, the undersigned Seller and Purchaser agree that the
non-prevailing party shall pay to you upon demand all reasonable costs and
expenses incurred by you in connection herewith but solely for costs
incurred in your role as Escrowee.
<PAGE>
3. You shall not charge an escrow fee in connection with your role as Escrowee
hereunder.
4. As escrowee, you shall invest the Escrow Deposit in an interest-bearing
account with a federally-insured bank or savings and loan as association as
set forth in the attached "Direction To Invest" or as otherwise directed by
Purchaser in writing. Any interest earned on the Escrow Deposit, after you
deduct your customary investment charges, shall become and be deemed to be
a part of the Escrow Deposit. The FEIN of Purchaser to which interest
shall be reported is ___________.
5. All notices or other communications hereunder shall be in writing and shall
be personally delivered or sent by overnight courier (such as Federal
Express), by facsimile transmission or by first class United States Mail,
postage prepaid, registered or certified (return receipt requested) to the
respective addresses for the Seller, Purchaser and escrowee as herein
provided, together with copies to the attorneys for Seller and Purchaser at
the addresses for such attorneys set forth in Paragraph 7 below. A notice
is given on the date it is personally delivered, sent by overnight courier
or facsimile transmission, or deposited with the United States Mail for
delivery as aforesaid. A notice is received on the date it is personally
delivered, the day after sent if sent by overnight courier or facsimile
transmission or, if sent by mail as aforesaid, on the date noted on the
return receipt.
6. Either Purchaser or Seller may act hereunder either directly or through its
attorney. The attorney for the Seller is:
Rosenberg & Liebentritt, P.C.
Two North Riverside Plaza
Suite 1600
Chicago, Illinois 60606
Telephone: (312) 466-3483
Facsimile: (312) 454-0335
Attention: Steven E. Ehrlich
2
<PAGE>
The attorney for the Purchaser is:
Liechty & McGinnis
10440 North Central Expressway
Suite 1100
Dallas, Texas 75231
Facsimile: (214) 265-0615
Telephone: (214) 265-0008
Attention: Kevin McGinnis
7. This Escrow Agreement is being entered into to implement the Contract and
shall not (nor be deemed to) amend, modify or supersede the Contract or act
as a waiver of any rights, obligations or remedies set forth therein;
provided, however, that you may rely solely upon these Escrow Instructions.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY BLANK]
3
<PAGE>
8. This Escrow Agreement and any other agreements in connection herewith may
be executed in three or more counterparts, each of which shall be deemed to
be an original and all of which taken together shall constitute one and the
same instrument. Furthermore, this Escrow Agreement transmitted via
facsimile shall be treated in all manners and respects as an original
document and any signature thereon shall be considered an original
signature and shall have the same binding legal effect as the original
document.
SELLER:
FIRST CAPITAL INCOME AND GROWTH FUND SERIES
XII, an Illinois limited partnership
By: First Capital Financial Corporation, a Florida
corporation, its general partner
By:__________________________________________
Name:________________________________________
Its:_________________________________________
PURCHASER:
WALLGLEN QUORUM PARTNERS, LTD., a Texas limited
partnership
By: WallGlen Quorum Properties, Inc., a Texas
corporation
By:__________________________________________
Name:________________________________________
Its:_________________________________________
4
<PAGE>
ADDRESS OF PURCHASER:
c/o Starwood Capital Group, LLC
Three Pickwick Plaza
Suite 250
Greenwich, Connecticut 06830
Facsimile: (203) 861-9279
Telephone: (203) 861-2100
Attention: James Babb
With a copy to:
Liechty & McGinnis
10440 North Central Expressway
Suite 1100
Dallas, Texas 75231
Facsimile: (214) 265-0615
Telephone: (214) 265-0008
Attention: Kevin McGinnis
With a copy to:
Squadron, Ellenoff, Plesent & Sheinfeld, LLP
551 Fifth Avenue
New York, New York 10176
Facsimile: (212) 661-6500
Telephone: (212) 697-6686
Attention: Alan Katz
ADDRESS OF SELLER:
c/o Equity Office Properties Management Corp.
Two North Riverside Plaza, Suite 2200
Chicago, Illinois 60606
Facsimile: (312) 559-5051
Telephone: (312) 466-3595
Attention: Alissa Schneider
5
<PAGE>
With a copy to:
Rosenberg & Liebentritt, P.C.
Two North Riverside Plaza
Suite 1600
Chicago, Illinois 60606
Facsimile: (312) 454-0335
Telephone: (312) 466-3483
Attention: Steven E. Ehrlich
ACCEPTED THIS ____ DAY OF FEBRUARY, 1998
COMMONWEALTH LAND TITLE INSURANCE
COMPANY, AS ESCROWEE
By:_______________________________
Title: ______________________
ADDRESS OF ESCROWEE:
30 North LaSalle Street
Suite 3440
Chicago, Illinois 60602
Facsimile: (312) 553-6910
Telephone: (312) 553-6914
Attention: Lawrence R. Vaughan, Esq.
6
<PAGE>
DIRECTION TO INVEST
-------------------
TO: COMMONWEALTH LAND TITLE INSURANCE COMPANY (ESCROWEE)
You are hereby directed to invested the sum of $500,000.00, representing the
total funds which you are holding for the mutual benefit of parties to your
certain Escrow No. _____________________.
The investment period shall be from the date hereof to _________________, 1998,
after which time the funds shall be held in the Escrow but not invested, pending
further instructions. The funds shall be invested through LaSalle National Bank
in the following (choose one):
[X] Money Market Account [_] Repurchase Agreements [_] Treasury Bills
Said interest earned on the investment shall be payable to: ________________,
Taxpayer I.D. FEIN # __________.
Information regarding the investment should be sent to the above party at:
See Joint Order Escrow Agreement to
which this is attached
It is acknowledged and agreed by the undersigned that the Escrowee is not
responsible for loss or damage and shall be held harmless in the event of the
following:
1. Any loss resulting from this investment.
2. Reinvestment of funds if not specifically directed by the undersigned in
writing.
3. Notification by the undersigned received after 2:00 p.m. of the day in
which funds are to be invested or reinvested.
4. Lost interest caused by early withdrawal at undersigned's direction.
5. Failure to invest surplus funds unless specifically directed.
It is agreed by the undersigned that the charge for the investment service will
be $ -0- .
------
<PAGE>
EXHIBIT E
ASSIGNMENT AND ASSUMPTION
OF LEASES AND SECURITY DEPOSITS
-------------------------------
THIS ASSIGNMENT AND ASSUMPTION OF LEASES AND SECURITY DEPOSITS (this
"ASSIGNMENT") is entered into as of the ______________ day of __________, 1998,
by and between FIRST CAPITAL INCOME AND GROWTH FUND SERIES XII, an Illinois
limited partnership ("ASSIGNOR"), having offices at Two North Riverside Plaza,
Chicago, Illinois 60606, and ______________________, a __________ ("ASSIGNEE"),
with an office at _____________________.
1. Property. The "PROPERTY" shall mean the real property located in the
--------
City of Louisville, County of Jefferson, Commonwealth of Kentucky, legally
described in EXHIBIT A attached to this Assignment, together with all of
---------
Assignor's right, title and interest in and to the building, structures and
other improvements located thereon, and commonly known as "Meidinger Tower".
2. Leases. The "LEASES" shall mean all leases affecting the Property, or
------
any part thereof, which leases are listed on EXHIBIT B attached hereto. "LEASE"
---------
shall mean any one of the Leases.
3. Security Deposits. "SECURITY DEPOSITS" shall mean all unapplied
-----------------
security deposits held by Assignor under the Leases that are set forth on
EXHIBIT C attached hereto.
- ---------
4. Contract. "CONTRACT" shall mean that certain Real Estate Sale
--------
Agreement dated _______________, 1998 by and between Assignor, as Seller, and
____________________, as Purchaser, for the purchase and sale of the Property.
5. Assignment. For good and valuable consideration received by Assignor,
----------
the receipt and sufficiency of which are hereby acknowledged, Assignor hereby
assigns to Assignee the entire right, title and interest of Assignor in and to
the Leases and the Security Deposits as applicable to the period from and after
the date hereof.
6. Assumption. Assignee hereby assumes all of the covenants, agreements
----------
and obligations of Assignor under or in connection with the Leases as applicable
to the period from and after the date hereof, and Assignee further assumes all
liability of Assignor for the proper refund or return of the Security Deposits
and the interest on the Security Deposits if, when and as required by the Leases
or otherwise by law. In addition, Assignee agrees to pay (i) in accordance with
Section 4(C)(i)(c) of the Contract, the brokerage fees, brokerage or leasing
commissions and tenant improvements costs and/or allowances payable in
connection with the New Leases (as defined in the Contract) set forth on EXHIBIT
-------
D attached hereto or as otherwise described on EXHIBIT D attached hereto; and
- - ---------
(ii) in accordance with Section 4(C)(i)(d) of the Contract, all brokerage fees,
leasing commissions, tenant improvement costs and/or allowances payable in
connection with the Leases set forth on EXHIBIT E attached hereto or as
---------
otherwise described on EXHIBIT E attached hereto not paid as of the date hereof.
---------
7. Enforcement. If Assignor or Assignee must resort to a court of law or
-----------
equity in order to enforce the provisions of this Assignment as against the
other, the non-prevailing party shall pay the reasonable attorney's fees and
expenses of the prevailing party.
<PAGE>
8. Third Parties. Except as set forth in Section 10 of this Assignment,
-------------
no third party shall have the benefit of any of the provisions of this
Assignment, nor is this Assignment made with the intent that any person or
entity other than Assignor or Assignee rely hereon.
9. Limited Liability. By accepting this Assignment, Assignee expressly
-----------------
understands and agrees that any recovery against Assignor that Assignee may be
entitled to as a result of any claim, demand or cause of action that Assignee
may have against Assignor with respect to this Assignment shall only be
recoverable against Assignor as provided in Section 10(P) of the Contract.
10. Successors and Assigns. This Assignment shall be binding upon and
----------------------
inure to the benefit of the parties hereto and their respective successors and
assigns.
11. Counterparts. This Assignment may be executed in any number of
------------
identical counterparts, any or all of which may contain signatures of fewer than
all of the parties but all of which taken together shall constitute a single
instrument.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY BLANK]
2
<PAGE>
[SIGNATURE PAGE ATTACHED TO ASSIGNMENT AND ASSUMPTION OF LEASES AND SECURITY
DEPOSITS]
IN WITNESS WHEREOF, Assignor and Assignee have executed this Assignment the
day and year first above written.
ASSIGNOR:
FIRST CAPITAL INCOME AND GROWTH FUND SERIES
XII, an Illinois limited partnership
By: First Capital Financial Corporation, a Florida
corporation, its general partner
By:__________________________________________
Name:________________________________________
Its:_________________________________________
ASSIGNEE:
EXHIBITS
--------
A - Legal Description of the Property
B - List of Leases
C - Security Deposits
D - T.I. and Commissions - New Leases
E - T.I. and Commissions - Existing Leases
3
<PAGE>
EXHIBIT F
ASSIGNMENT AND ASSUMPTION OF SERVICE CONTRACTS
----------------------------------------------
THIS ASSIGNMENT AND ASSUMPTION OF SERVICE CONTRACTS (this "ASSIGNMENT") is
entered into as of the ____ day of __________, 1998 by and between FIRST CAPITAL
INCOME AND GROWTH FUND SERIES XII, an Illinois limited partnership ("ASSIGNOR"),
having offices at Two North Riverside Plaza, Chicago, Illinois 60606, and
________________, a __________ ("ASSIGNEE"), with an office at
________________________________.
1. Property. The "PROPERTY" shall mean the real property located in the
--------
City of Louisville, County of Jefferson, Commonwealth of Kentucky, legally
described in EXHIBIT A attached to this Assignment, together with all of
---------
Assignor's right, title and interest in and to the building, structures and
other improvements located thereon, and commonly known as "Meidinger Tower".
2. Contract. "CONTRACT" shall mean that certain Real Estate Sale
--------
Agreement dated _______________, 1998 by and between Assignor, as Seller, and
_________________, as Purchaser, for the purchase and sale of the Property.
3. Service Contracts. "SERVICE CONTRACTS" shall mean the service
-----------------
contracts entered into with respect to the ownership and operation of the
Property that are listed on EXHIBIT B attached to this Assignment.
---------
4. Assignment. For good and valuable consideration received by Assignor,
----------
the receipt and sufficiency of which are hereby acknowledged, Assignor hereby
assigns to Assignee the entire right, title and interest of Assignor in and to
the Service Contracts as applicable to the period from and after the date
hereof.
5. Assumption. Assignee hereby assumes all of the covenants, agreements
----------
and obligations of Assignor under or in connection with the Service Contracts as
applicable to the period from and after the date hereof.
6. Enforcement. If Assignor or Assignee must resort to a court of law or
-----------
equity in order to enforce the provisions of this Assignment as against the
other, the non-prevailing party shall pay the reasonable attorney's fees and
expenses of the prevailing party.
7. Third Parties. Except as set forth in Section 10 of this Assignment,
-------------
no third party shall have the benefit of any of the provisions of this
Assignment, nor is this Assignment made with the intent that any person or
entity other than Assignor or Assignee shall rely hereon.
8. No Representations or Warranties. This Assignment shall not be
--------------------------------
construed as a representation or warranty by Assignor as to the transferability
of the Service Contracts, and Assignor shall have no liability to Assignee in
the event that any or all of the Service Contracts (i) are not transferable to
Assignee or (ii) are canceled or terminated by reason of this assignment or any
acts of Assignee.
9. Limited Liability. By accepting this Assignment, Assignee expressly
-----------------
understands and agrees that any recovery against Assignor that Assignee may be
entitled to as a result of any claim, demand or cause of action that Assignee
may have against Assignor with respect to this Assignment shall only be
recoverable against Assignor as provided in Section 10(P) of the Contract.
<PAGE>
10. Successors and Assigns. This Assignment shall be binding upon and
----------------------
inure to the benefit of the parties hereto and their respective successors and
assigns.
11. Counterparts. This Assignment may be executed in any number of
------------
identical counterparts, any or all of which may contain signatures of fewer than
all of the parties but all of which taken together shall constitute a single
instrument.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY BLANK]
2
<PAGE>
[SIGNATURE PAGE ATTACHED TO ASSIGNMENT AND ASSUMPTION OF SERVICE CONTRACTS]
IN WITNESS WHEREOF, Assignor and Assignee have executed this Assignment the
day and year first above written.
ASSIGNOR:
FIRST CAPITAL INCOME AND GROWTH FUND SERIES XII,
an Illinois limited partnership
By: First Capital Financial Corporation, a
Florida corporation, its general partner
By:__________________________________________
Name:________________________________________
Its:_________________________________________
ASSIGNEE:
EXHIBITS
--------
A - Legal Description of Property
B - Service Contracts
3
<PAGE>
EXHIBIT G
FORM TENANT ESTOPPEL CERTIFICATE
--------------------------------
WallGlen Quorum Partners, Ltd. [PURCHASER'S LENDER]
c/o Starwood Capital, LLC
Three Pickwick Plaza, Suite 250
Greenwich, Connecticut 06830
First Capital Income and Growth Fund Series XII
c/o Equity Office
Two North Riverside Plaza
Suite 2200
Chicago, Illinois 60606
Attention: Ms. Alissa Schneider
Ladies and Gentlemen:
At the request of First Capital Income and Growth Fund Series XII, an
Illinois limited partnership, ("LANDLORD"), made in connection with the proposed
sale of Meidinger Tower, 462 South Fourth Avenue, Louisville, Kentucky, (the
"PROPERTY") and Landlord's interest in the Lease (as hereinafter defined) to
WallGlen Quorum Partners, Ltd., a Texas limited partnership ("PURCHASER"), the
undersigned hereby certifies to Landlord, Purchaser and [PURCHASER'S LENDER]
------------------
("LENDER") as follows:
1. The undersigned is the tenant under a lease with Landlord, dated
__________, 19___, [as amended by _________________, dated __________, 19___
(collectively, the "LEASE")][(the "LEASE")] for suite(s) _______ on the ________
floor(s) at the Property (the "PREMISES"). A true, correct and complete copy of
such lease and all amendments thereto is attached hereto as EXHIBIT A.
---------
2. The Lease sets forth the entire agreement between Landlord and the
undersigned with respect to the Premises, is in full force and effect and has
not been amended, modified or extended except as set forth in EXHIBIT A.
---------
3. The monthly [base][minimum] rent of $________ due under the Lease has
been paid through _______, 1998 and all additional rent (consisting of
$_________ per month for estimated operating expenses and estimated real estate
taxes) due under the Lease has been paid through ______________, 1998.
4. To the best of tenant's knowledge, the Landlord is not in default
under the Lease and there is no existing default on the part of tenant under the
Lease.
5. The expiration date (excluding renewals) of the Lease is
____________________, 19___.
6. The amount of the security deposit currently held by Landlord under
the Lease is $________________.
7. There is no prepaid rent, except $_____________.
<PAGE>
8. The undersigned has not assigned any of its interest in the Lease or
subleased all or any portion of the Premises or encumbered or otherwise
transferred its interest in the Lease, except as follows:
_____________________________.
9. The undersigned has no defenses, counterclaims, set-offs or
concessions against rent or charges due or to become due under the Lease.
10. The undersigned has unconditionally accepted the Premises and [has
commenced payment of full rent] [or] [is entitled to _____ month's abatement of
base rent, as of the date hereof] under the Lease and is the owner and holder of
the entire tenant's interest in the Lease.
11. [All work required to be performed by Landlord with respect to the
Lease and in connection with the Premises has been completed by Landlord to the
satisfaction of Tenant except for _________________.] [All amounts to be paid
by Landlord under the Lease with respect to work in the Premises have been paid
by Landlord except for ________________.]
12. The undersigned has no right of first refusal, other right or option
pursuant to the Lease or otherwise to purchase all or any part of the Premises
or the Property.
13. This Tenant Estoppel Certificate (this "CERTIFICATE") shall inure to
the benefit of, and may be relied upon by, Landlord, Purchaser, Lender and their
respective successors and assigns.
14. If we are a corporation, the undersigned is a duly appointed officer
of the corporation signing this Certificate and is the incumbent in the office
indicated under this Certificate and is the incumbent in the office indicated
under his or her name. In any event, the undersigned is duly authorized to
execute this Certificate.
Very truly yours,
______________________, Tenant
By:_____________________________________
___________________, Title
Date: ____________________, 1998
2
<PAGE>
EXHIBIT H
NOTICES OF VIOLATIONS OF LAWS
-----------------------------
NONE.
<PAGE>
EXHIBIT I
LIST OF LITIGATION
------------------
NONE.
<PAGE>
EXHIBIT J
BILL OF SALE
------------
SPECIAL WARRANTY BILL OF SALE
-----------------------------
THIS SPECIAL WARRANTY BILL OF SALE (this "BILL OF SALE") is executed as of
the ____ day of _________, 1998, by ____________________, ("SELLER"), having
offices at Two North Riverside Plaza, Chicago, Illinois 60606, in favor of
__________________, a __________ ("PURCHASER"), with an office at
___________________________________________.
1. Property. The "PROPERTY" shall mean the real property located in the
--------
City of Louisville, Kentucky, legally described in EXHIBIT A attached to this
---------
Bill of Sale, together with all of Seller's right, title and interest in and to
the building, structures and other improvements located thereon, and commonly
known as "Meidinger Tower".
2. Personal Property. The "PERSONAL PROPERTY" shall mean the Tangible
-----------------
Personal Property as defined in that certain Real Estate Sale Agreement dated
the ___ day of _____________, 1998 (as amended, the "CONTRACT"), by and between
Seller and ____________ with respect to the purchase and sale of the Real
Property and other property as described therein, as such Personal Property is
more particularly described on attached EXHIBIT C.
---------
3. Sale. For good and valuable consideration received by Seller, the
----
receipt and sufficiency of which are hereby acknowledged, Seller hereby sells,
assigns and transfers the Personal Property to Purchaser free of any liens or
encumbrances other than those matters set forth on EXHIBIT B attached hereto
---------
(the "PERMITTED EXCEPTIONS"). Seller covenants and agrees to warrant specially
and forever defend title to the Personal Property unto Purchaser against all and
every person or persons lawfully claiming the whole or any part thereof by,
through or under Seller, and none other, but subject in any event to the
Permitted Exceptions. Except as set forth in the two (2) preceding sentences,
Seller makes no warranties or representations as to the Personal Property. The
Personal Property is transferred "AS IS, WHERE IS" and ALL WARRANTIES OF
QUALITY, FITNESS AND MERCHANTABILITY ARE HEREBY EXCLUDED.
4. Limited Liability. By accepting this Bill of Sale, Purchaser
-----------------
expressly understands and agrees that any recovery against Seller that Purchaser
may be entitled to as a result of any claim, demand or cause of action that
Purchaser may have against Seller with respect to this Bill of Sale shall only
be recoverable against Seller as provided in Section 10(P) of the Contract.
IN WITNESS WHEREOF, Seller has executed this Bill of Sale the day and year
first above written.
SELLER:
<PAGE>
EXHIBIT K
TANGIBLE PERSONAL PROPERTY
--------------------------
<TABLE>
<CAPTION>
Reception Area: KITCHEN:
- --------------- --------
<S> <C>
1 - Desk Mahogany with left Return 1 - Sharp Microwave
1 - IBM Personal Wheelwriter 2 Typewriter & Stand 1 - GE Refrigerator
1 - Mahogany End Table
1 - Radio Shack Answering Machine - Serial #50232196
4 - Chairs without rollers COPY ROOM:
----------
1 - Large plant 1 - Panasonic Copier - Model #FP-7728
1 - Small plant 5 - Metal Storage Cabinets
2 - Large Metal Shelves
1 - Ingento Office Trimmer
1 - GBC Electric Binder
SUSAN'S OFFICE: LISA'S OFFICE:
- --------------- --------------
1 - Mahogany Desk 1 - Mahogany Desk
2 - Chairs 5 - Chairs with rollers
1 - Mahogany Credenza 1 - Mahogany Credenza
1 - Metal File Cabinet 1 - Mahogany Bookcase
1 - Texas Instrument Calculator 1 - Mahogany Round Conference Table
Model #TI-5045SV 1 - Texas Instrument Calculator
1 - Floor Plant Model #TI-5032
1 - Small Plant 2 - Large Floor Plants
CONFERENCE ROOM: DON'S OFFICE:
- --------------- -------------
1 - Mahogany Conference Table 1 - Mahogany Desk
7 - Chairs without rollers 3 - Chairs with rollers
1 - Mahogany Credenza 1 - Mahogany Bookcase
3 - Floor Plants 1 - Large Floor Plant
1 - Large Print - Meidinger Tower 1 - Metal File Cabinets
1 - Large Print - The Great Steamboat Race 1 - Small Plant
GENERAL:
- --------
1 - Floor Plant
1 - NEC Silentwriter Printer - Model #95
1 - IBM Computer #425SX (In Main Lobby Desk)
8 - Large Wooden Planters in Main Lobby
1 - Ricoh Fax Machine - Model #R89 sits on a 2 Drawer Mahogany Lateral Cabinet
3 - Prints - Uprising at the North (All prints listed have wood frames)
9 - Executone Isotech Digital Phone Systems- Model #A000129
MAINTENANCE & SERVICE EQUIPMENT:
- --------------------------------
1 - 10' Fiberglass Ladder 1 - Eyewash, YW Bowl w/bracket
1 - 12' Wooden Ladder 1 - Furniture Dolly
1 - 2-Wheel Dolly 1 - ILCO - Key Machine
1 - 30' Wooden Extension Ladder 1 - Knock Out Set
2 - 4' Wooden Ladders 1 - Maid's Cart - Light Bulb Cart
</TABLE>
<PAGE>
EXHIBIT K (CONTINUED)
TANGIBLE PERSONAL PROPERTY
--------------------------
<TABLE>
<S> <C>
1 - 4-Wheel Dolly 1 - Makita - Drill 3/8"
1 - 4-Wheel Dolly (Small) 1 - Mattado - Hammer Drive
1 - 6' Fiberglass Ladder 1 - Metal Cabinet, Heavy-Duty, 5 Shelf
1 - Acura - Table Saw 1 - Porter Cable - Reciprocating Saw
1 - Bench Grinder 2 - Safety Cans 1 gal, Type 1
1 - Bench Vice 1 - Safety Can, 5 gal. Type 1
1 - Black & Decker - Skill Saw Scaffold (4 Sections w/boards)
1 - Bosch, Cordless Drill w/charger 1 - Storage Cabinet, 45 gal/2 Door
1 - Cabinet, 2-Door, 22 gal u/center 1 - Torbo Torch
2 - Dumpster Carts 1 - Valdor - Pressure Washer
INSTRUMENTS:
- ------------
1 - Amprobe Meter
1 - Amprobe - Meg/OHM Meter
1 - Archer - Circuit Identifier
1 - Fluke - Volt/OHM Meter (Digital)
1 - Micrinta - Volt/OHM Meter (Analog)
MISCELLANEOUS ITEMS/TOOLS:
- --------------------------
1 - 1/2" Pipe Bender 7 - Files (Assorted)
2 - 12" Pipe Wrenches 1 - Fish Tape
1 - 18" Pipe Wrench 1 - Flaring Tool
1 - 2' Level 1 - Framing Square
1 - 24" Pipe Wrench 1 - Hacksaw
1 - 3/4" Pipe Bender 2 - Lineman's Pliers
1 - 4' Level 1 - Metal Shears
2 - 6 in 1 Screwdrivers 3 - Needle Nose Pliers
1 - Allen Wrench Set 1 - Nut Driver Set
2 - Aviation Snips 1 - Phillips Blade Screwdriver
4 - Ball-Peen Hammers 1 - Pick Set
1 - Basin Wrench 2 - Pry Bars
1 - Bolt Cutter 1 - Putty Knife
1 - Carpenters Square 1 - Sledge hammer
1 - Chalk Line 1 - Socket Wrench Set (52 pieces)
2 - Channeloch Pliers 1 - Soldering Iron
1 - Claw Hammer 1 - Straight Blade Screw diver
2 - Combination Wrench Sets 2 - Tape Measures
6 - Compression Ring Pliers 2 - Tubing Cutters
1 - Crimping Pliers 2 - Vise Grip Pliers
1 - Cross-cut saw 1 - Wood Chisel
2 - Diagonal Pliers 4 - Wood Clamps
1 - Drywall T-square
2 - Drywall Taping Knives
</TABLE>
2
<PAGE>
EXHIBIT L
---------
NOTICE LETTER TO TENANTS
------------------------
[Letterhead of Equity Office Properties Management Corp.]
NOTICE TO TENANTS
______________, 1998
Re: Meidinger Tower, 462 South Fourth Avenue, Louisville, Kentucky (the
"Property")
Dear Tenant:
This is to notify you that the Property has been sold to
_____________________, and that ________________________ has been retained by
the new owner as managing agent of the building.
Any security or other deposits and any prepaid rents under your lease have
been transferred to the new owner.
Effective immediately, all rental payments, notices to the Landlord, and
correspondence pursuant to your lease should be mailed to the following address:
Rents: Notices:
_____________________________________ _________________________________
_____________________________________ _________________________________
_____________________________________ _________________________________
Attention: __________________________
Additionally, please have new Certificates of Insurance issued naming
____________________ as an additional insured. Please deliver said Certificate
to new owner at the "Notices" address set forth above.
Very truly yours,
EQUITY OFFICE PROPERTIES MANAGEMENT CORP., a
Delaware corporation, as agent
By: __________________________________________
Name:________________________________________
Its: __________________________________________
<PAGE>
EXHIBIT M
---------
NOTICE LETTER TO VENDORS
------------------------
[Letterhead of Equity Office Properties Management Corp.]
__________________, 1998
VIA TELECOPY AND
- ----------------
CERTIFIED MAIL, RETURN RECEIPT REQUESTED
- ----------------------------------------
[Vendor]
_________________________
_________________________
Re: Sale of Meidinger Tower
462 South Fourth Avenue
Louisville, Kentucky (the "Property")
-------------------------------------
Dear Service Provider:
This is to notify you that the Property has been sold to
__________________, a _________ ("Purchaser"), and that _________________,
having an office at _____________________________, has been retained by the
Purchaser of the Property as managing agent of the building. Purchaser has
assumed all of the obligations of the undersigned under the [LICENSE
AGREEMENTS/SERVICE CONTRACTS] with respect to the period from and after the date
hereof. All notices to Purchaser should be sent to Purchaser at the office of
the building, and should be sent or delivered to such address in the manner
provided in the [LICENSE AGREEMENT/SERVICE CONTRACT].
Very truly yours,
EQUITY OFFICE PROPERTIES MANAGEMENT CORP., a
Delaware corporation, as agent
By: __________________________________________
Name:________________________________________
Its: __________________________________________
<PAGE>
EXHIBIT N - RENT ROLL
---------
<TABLE>
<CAPTION>
STORAGE MONTHLY
RENT BASE RENT
SECURITY PAYABLE PAYABLE
SUITE # TENANT NAME DEPOSIT SQ. FT. EXP. DATE AS OF 2/1/98 AS OF 2/1/98
- -----------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
1770 ACSI of Louisville, Inc. $12,498.68 10,608 7/31/04 $ 133.83 $ 7,551.88
- -----------------------------------------------------------------------------------------------------------------------
2400 Advest, Inc. 0.00 4,754 8/31/03 0.00 3,957.71
- -----------------------------------------------------------------------------------------------------------------------
2300 Arthur Andersen, LLP 0.00 10,128 9/30/03 231.71 6,920.80
- -----------------------------------------------------------------------------------------------------------------------
610 Borden Chemical, Inc. 0.00 9,470 12/17/00 0.00 7,733.84
- -----------------------------------------------------------------------------------------------------------------------
1825 Borowtiz & Goldsmith, PLC 0.00 9,096 12/31/01 215.63 6,200.44
- -----------------------------------------------------------------------------------------------------------------------
130 CBM Building Services, Inc. 0.00 0 4/30/00 340.26 0.00
- -----------------------------------------------------------------------------------------------------------------------
1200 Commonwealth Aluminum Inc(1) 0.00 8,011 8/31/98 0.00 5,610.75
- -----------------------------------------------------------------------------------------------------------------------
1200 Compression, Inc(1) 6,675.83 8,011 8/31/01 0.00 0.00
- -----------------------------------------------------------------------------------------------------------------------
2340/27N Data Advantage Corp. 2,959.39 2,219 3/17/00 33.35 1,942.73
- -----------------------------------------------------------------------------------------------------------------------
1900 David Corrie, an individual 0.00 16,964 4/30/01 355.39 8,043.43
- -----------------------------------------------------------------------------------------------------------------------
2000/27K/LL13 Dinsmore & Shohl, LLP(3) 0.00 17,447 7/31/02 658.31 19,980.00
- -----------------------------------------------------------------------------------------------------------------------
2000 Dinsmore & Shohl, LLP(3) 0.00 2,533 7/31/02 0.00 0.00
- -----------------------------------------------------------------------------------------------------------------------
1225/LL11 Encor Technologies, Inc. 0.00 6,659 12/31/00 212.59 4,454.75
- -----------------------------------------------------------------------------------------------------------------------
1620 Entex Information Services, Inc. 4,028.75 3,516 12/23/98 0.00 2,226.80
- -----------------------------------------------------------------------------------------------------------------------
2500 Eskew & Gresham 0.00 14,341 9/30/99 576.00 14,341.00
- -----------------------------------------------------------------------------------------------------------------------
1750 Executive Investment Advisors, Inc. 1,050.00 1,573 8/31/00 0.00 985.75
- -----------------------------------------------------------------------------------------------------------------------
1600/27R Gardner, Ewing & Souza 4,882.01 4,314 12/31/04 42.88 2,566.83
- -----------------------------------------------------------------------------------------------------------------------
900 Gloria Jean's Gourmet Coffee Corp. 0.00 900 10/15/05 0.00 810.00
- -----------------------------------------------------------------------------------------------------------------------
1730 Harper, Ferguson & Davis 5,001.35 4,349 7/31/99 181.00 2,718.13
- -----------------------------------------------------------------------------------------------------------------------
405 HCIA, Inc. 4,984.67 4,619 4/30/98 0.00 2,617.43
- -----------------------------------------------------------------------------------------------------------------------
LL10 Hebel & Hornung, PSC 0.00 0 12/31/99 68.54 0.00
- -----------------------------------------------------------------------------------------------------------------------
27L Kent Robinson 0.00 0 4/30/98 84.80 0.00
- -----------------------------------------------------------------------------------------------------------------------
LL1/LL19 Kentucky Telephone Corporation 0.00 0 7/31/02 133.82 0.00
- -----------------------------------------------------------------------------------------------------------------------
1700 Lloyd & McDaniel, PLC 0.00 5,012 5/12/03 0.00 3,216.03
- -----------------------------------------------------------------------------------------------------------------------
500/27S Lynch Cox Gilman & Mahan, P.S.C. 0.00 13,980 10/31/99 158.31 9,902.50
- -----------------------------------------------------------------------------------------------------------------------
27P Mainstream Advisors, LLC 0.00 0 8/31/00 48.00 0.00
- -----------------------------------------------------------------------------------------------------------------------
200 MCI Telecommunications Corp. 0.00 8,684 12/31/01 530.45 8,843.21
- -----------------------------------------------------------------------------------------------------------------------
816 Mercer, Inc. William M. 0.00 100,883 7/31/02 0.00 67,255.34
- -----------------------------------------------------------------------------------------------------------------------
705 Mercer, Inc. William M. 0.00 10,975 7/31/02 0.00 6,676.46
- -----------------------------------------------------------------------------------------------------------------------
1800 Mercer, Inc. William M. 0.00 4,318 12/31/99 0.00 2,813.90
- -----------------------------------------------------------------------------------------------------------------------
LL6 Mercer, Inc. William M. 0.00 0 10/31/98 139.33 0.00
- -----------------------------------------------------------------------------------------------------------------------
LL3 Mercer, Inc. William M. 0.00 0 7/31/02 1,441.67 0.00
- -----------------------------------------------------------------------------------------------------------------------
27E Mercer, Inc. William M. 0.00 0 5/31/98 260.00 0.00
- -----------------------------------------------------------------------------------------------------------------------
2450 Naber, Joyner, Schardein & Stinson 0.00 4,331 9/30/03 0.00 2,797.00
- -----------------------------------------------------------------------------------------------------------------------
400 PDR Engineers, Inc. 0.00 7,354 10/31/01 0.00 5,668.71
- -----------------------------------------------------------------------------------------------------------------------
LL16 PDR Engineers, Inc. 0.00 0 10/31/99 176.97 0.00
- -----------------------------------------------------------------------------------------------------------------------
101 PNC Bank, National Association 0.00 4,383 4/30/03 0.00 6,302.54
- -----------------------------------------------------------------------------------------------------------------------
210 Payton Enterprises, Inc.(2) 6,889.74 2,402 3/31/04 0.00 0.00
- -----------------------------------------------------------------------------------------------------------------------
LL21 Potter & Cox Architects 0.00 0 7/30/02 54.93 0.00
- -----------------------------------------------------------------------------------------------------------------------
2460 Roach, Becker, & Gallagher 2,370.37 3,010 6/30/98 0.00 1,806.00
- -----------------------------------------------------------------------------------------------------------------------
2350 Ruck, Wilson & Helline 0.00 2,050 9/30/97 0.00 1,452.08
- -----------------------------------------------------------------------------------------------------------------------
2200 Seiller & Handmaker, LLP 0.00 14,341 5/31/04 553.39 13,145.92
- -----------------------------------------------------------------------------------------------------------------------
<CAPTION>
MONTHLY BASE RENT,
ESTIMATED STORAGE RENT OR PREPAID BASE RENT,
OPERATING EXP. ESTIMATED OPERATING STORAGE RENT, OR
PASS-THROUGHS EXPENSE PASS-THROUGHS ESTIMATED OPERATING
PAYABLE OUTSTANDING EXPENSE PASS-THROUGHS
SUITE # TENANT NAME AS OF 2/1/98 AS OF 2/13/98 AS OF 2/13/98
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
1770 ACSI of Louisville, Inc. $ 6,239.36 $ 0.00 $ 0.00
- ----------------------------------------------------------------------------------------------------------------------------------
2400 Advest, Inc. 2,796.18 0.00 0.00
- ----------------------------------------------------------------------------------------------------------------------------------
2300 Arthur Andersen, LLP 5,957.04 0.00 0.00
- ----------------------------------------------------------------------------------------------------------------------------------
610 Borden Chemical, Inc. 5,571.52 0.00 0.00
- ----------------------------------------------------------------------------------------------------------------------------------
1825 Borowtiz & Goldsmith, PLC 5,350.04 0.00 0.00
- ----------------------------------------------------------------------------------------------------------------------------------
130 CBM Building Services, Inc. 0.00 38.52 0.00
- ----------------------------------------------------------------------------------------------------------------------------------
1200 Commonwealth Aluminum Inc(1) 4,400.14 0.00 0.00
- ----------------------------------------------------------------------------------------------------------------------------------
1200 Compression, Inc(1) 0.00 0.00 0.00
- ----------------------------------------------------------------------------------------------------------------------------------
2340/27N Data Advantage Corp. 1,305.16 0.00 0.00
- ----------------------------------------------------------------------------------------------------------------------------------
1900 David Corrie, an individual 9,977.80 0.00 0.00
- ----------------------------------------------------------------------------------------------------------------------------------
2000/27K/LL13 Dinsmore & Shohl, LLP(3) 11,754.90 0.00 640.00
- ----------------------------------------------------------------------------------------------------------------------------------
2000 Dinsmore & Shohl, LLP(3) 0.00 0.00 0.00
- ----------------------------------------------------------------------------------------------------------------------------------
1225/LL11 Encor Technologies, Inc. 3,916.66 0.00 0.00
- ----------------------------------------------------------------------------------------------------------------------------------
1620 Entex Information Services, Inc. 2,068.02 0.00 2.00
- ----------------------------------------------------------------------------------------------------------------------------------
2500 Eskew & Gresham 8,435.02 0.00 0.00
- ----------------------------------------------------------------------------------------------------------------------------------
1750 Executive Investment Advisors, Inc. 925.20 0.00 0.00
- ----------------------------------------------------------------------------------------------------------------------------------
1600/27R Gardner, Ewing & Souza 2,537.39 0.00 0.00
- ----------------------------------------------------------------------------------------------------------------------------------
900 Gloria Jean's Gourmet Coffee Corp. 876.00 0.00 0.00
- ----------------------------------------------------------------------------------------------------------------------------------
1730 Harper, Ferguson & Davis 2,557.97 0.00 21,828.40
- ----------------------------------------------------------------------------------------------------------------------------------
405 HCIA, Inc. 2,716.78 0.00 0.00
- ----------------------------------------------------------------------------------------------------------------------------------
LL10 Hebel & Hornung, PSC 0.00 0.00 0.00
- ----------------------------------------------------------------------------------------------------------------------------------
27L Kent Robinson 0.00 0.00 0.00
- ----------------------------------------------------------------------------------------------------------------------------------
LL1/LL19 Kentucky Telephone Corporation 0.00 133.82 0.00
- ----------------------------------------------------------------------------------------------------------------------------------
1700 Lloyd & McDaniel, PLC 2,947.93 0.00 0.00
- ----------------------------------------------------------------------------------------------------------------------------------
500/27S Lynch Cox Gilman & Mahan, P.S.C. 8,222.69 0.00 0.00
- ----------------------------------------------------------------------------------------------------------------------------------
27P Mainstream Advisors, LLC 0.00 0.00 0.00
- ----------------------------------------------------------------------------------------------------------------------------------
200 MCI Telecommunications Corp. 5,107.71 0.00 0.00
- ----------------------------------------------------------------------------------------------------------------------------------
816 Mercer, Inc. William M. 54,897.16 0.00 0.00
- ----------------------------------------------------------------------------------------------------------------------------------
705 Mercer, Inc. William M. 6,518.48 0.00 0.00
- ----------------------------------------------------------------------------------------------------------------------------------
1800 Mercer, Inc. William M. 2,564.85 0.00 0.00
- ----------------------------------------------------------------------------------------------------------------------------------
LL6 Mercer, Inc. William M. 0.00 0.00 0.00
- ----------------------------------------------------------------------------------------------------------------------------------
LL3 Mercer, Inc. William M. 0.00 0.00 0.00
- ----------------------------------------------------------------------------------------------------------------------------------
27E Mercer, Inc. William M. 0.00 0.00 0.00
- ----------------------------------------------------------------------------------------------------------------------------------
2450 Naber, Joyner, Schardein & Stinson 2,547.39 0.00 0.00
- ----------------------------------------------------------------------------------------------------------------------------------
400 PDR Engineers, Inc. 4,325.44 0.00 0.00
- ----------------------------------------------------------------------------------------------------------------------------------
LL16 PDR Engineers, Inc. 0.00 0.00 0.00
- ----------------------------------------------------------------------------------------------------------------------------------
101 PNC Bank, National Association 3,974.12 0.00 0.00
- ----------------------------------------------------------------------------------------------------------------------------------
210 Payton Enterprises, Inc.(2) 0.00 0.00 0.00
- ----------------------------------------------------------------------------------------------------------------------------------
LL21 Potter & Cox Architects 0.00 0.00 0.00
- ----------------------------------------------------------------------------------------------------------------------------------
2460 Roach, Becker, & Gallagher 1,770.41 0.00 0.00
- ----------------------------------------------------------------------------------------------------------------------------------
2350 Ruck, Wilson & Helline 1,205.76 0.00 0.00
- ----------------------------------------------------------------------------------------------------------------------------------
2200 Seiller & Handmaker, LLP 8,435.02 0.00 0.00
- ----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
EXHIBIT N (CONTINUED) - RENT ROLL
---------
<TABLE>
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
420 Sherman.Carter.Barnhart PSC 2,299.68 2,007 7/14/98 0.00 1,605.60 1,180.47 0.00 0.00
- ---------------------------------------------------------------------------------------------------------------------------
625 Southeast Development Corporation 0.00 4,610 2/28/98 0.00 1,973.00 2,653.38 32,166.31 0.00
- ---------------------------------------------------------------------------------------------------------------------------
1640 Storage Technology Corporation 0.00 928 9/30/98 0.00 491.14 545.83 0.00 0.00
- ---------------------------------------------------------------------------------------------------------------------------
1850 Waterhouse Securities, Inc. 1,212.17 959 6/30/99 0.00 607.37 564.06 0.00 0.00
- ---------------------------------------------------------------------------------------------------------------------------
</TABLE>
(1) Commonwealth Aluminum, Inc. lease expires 8/31/98 and Compression, Inc.
commences 9/1/98.
(2) Payton Enterprises, Inc. lease commences approx. 4/1/98 for Suite 210.
(3) Dinsmore & Shohl, LLP expansion of 2,533 sf on the 21st floor commences
3/1/98.
2
<PAGE>
EXHIBIT O
OSHA LETTER
-----------
_________________, 1998
[Purchaser]
Re: Transmittal of Information Regarding Asbestos-Containing
Material and Presumed Asbestos-Containing Material
Ladies and Gentlemen:
As you know, the Occupational Safety and Health Administration ("OSHA") has
enacted regulations (the "OSHA REGULATIONS") which require building owners to
provide information regarding the presence, location and quantity of asbestos
containing material ("ACM") and presumed ACM ("PACM") to various building
occupants, including employers of employees who lease space within the owner's
building. In addition, the OSHA Regulations, specifically 29 C.F.R.
(S)1910.1001(j)(2)(ii) and 29 C.F.R. (S)1926.1101(n)(6), require building owners
to keep records of all information required to be maintained by the OSHA
Regulations and to transmit such records to subsequent owners at or before the
time of closing.
First Capital Income and Growth Fund Series XII, an Illinois limited
partnership ("SELLER"), has, prior to the date of this letter, provided [NAME OF
PURCHASER] ("PURCHASER") with copies of information required to be maintained
and transmitted as described above regarding ACM and PACM at the property
located at 462 South Fourth Avenue, Louisville, Kentucky, and commonly known as
Meidinger Tower, including copies of notices to tenants and any related asbestos
sampling results and reports in our possession (such information, notices and
reports being referred to herein collectively as the "REPORTS"). A list of such
Reports is set forth on SCHEDULE 1 attached hereto.
----------
The undersigned makes no representation, warranty, promises, covenants,
agreements or guarantees of any kind or character whatsoever, express or
implied, oral or written, past, present or future, of, as to, concerning or with
respect to the information and documentation transmitted herewith including
without limitation, the accuracy or completeness of such Reports, the Reports'
compliance with the OSHA Regulations, or Seller's compliance with the OSHA
Regulations.
<PAGE>
We request that you acknowledge receipt of this letter and the Reports by
signing below and forwarding an executed copy to Seller.
Sincerely,
FIRST CAPITAL INCOME AND GROWTH FUND SERIES XII, an
Illinois limited partnership
By: First Capital Financial Corporation, a Florida
corporation, its general partner
By:_____________________________________
Name:___________________________________
Its:____________________________________
Acknowledged receipt of this letter and the
Reports this _____ day of _______________, 1998.
[PURCHASER]
By:______________________________________
Name:____________________________________
Its:_____________________________________
2
<PAGE>
SCHEDULE 1
----------
TO
--
OSHA LETTER
-----------
LIST OF REPORTS
---------------
1. Letter dated December 2, 1988 from ENSR Consulting and Engineering
addressed to Mr. Scott R. Whitney together with a copy of Environmental
Assessment of Meidinger Tower prepared by ERT dated September 1988,
Document No. 2708-006-001;
2. Letter dated December 10, 1990 to Mr. Steven Lane from ENSR Consulting and
Engineering - Re: Environmental Assessment Update of Meidinger Tower,
Louisville, Kentucky; and
3. Letter dated March 3, 1997 from Law Engineering and Environmental Services,
Inc. addressed to Mr. Donald E. Buckler - Re: Equity Properties Indoor Air
Sampling, Meidinger Tower, Law Engineering and Environmental Services
Project 50521-7-6549.
3
<PAGE>
EXHIBIT P
ENVIRONMENTAL REPORTS
---------------------
1. Letter dated December 2, 1988 from ENSR Consulting and Engineering
addressed to Mr. Scott R. Whitney together with a copy of Environmental
Assessment of Meidinger Tower prepared by ERT dated September 1988,
Document No. 2708-006-001;
2. Letter dated December 10, 1990 to Mr. Steven Lane from ENSR Consulting and
Engineering - Re: Environmental Assessment Update of Meidinger Tower,
Louisville, Kentucky; and
3. Letter dated March 3, 1997 from Law Engineering and Environmental Services,
Inc. addressed to Mr. Donald E. Buckler - Re: Equity Properties Indoor Air
Sampling, Meidinger Tower, Law Engineering and Environmental Services
Project 50521-7-6549.
<PAGE>
EXHIBIT Q
CONFIDENTIALITY AGREEMENT
-------------------------
Exhibit Q follows this page
<PAGE>
EXHIBIT R
QUIT CLAIM ASSIGNMENT OF PERMITS AND GENERAL INTANGIBLES
--------------------------------------------------------
THIS QUIT CLAIM ASSIGNMENT OF PERMITS AND GENERAL INTANGIBLES (this
"ASSIGNMENT") is entered into as of the ____ day of __________, 1998 by and
between FIRST CAPITAL INCOME AND GROWTH FUND SERIES XII, an Illinois limited
partnership ("ASSIGNOR"), having offices at Two North Riverside Plaza, Chicago,
Illinois 60606, and ________________, a __________ ("ASSIGNEE"), with an office
at ________________________________.
1. Property. The "PROPERTY" shall mean the real property located in the
--------
City of Louisville, County of Jefferson, Commonwealth of Kentucky, legally
described in EXHIBIT A attached to this Assignment, together with all of
---------
Assignor's right, title and interest in and to the building, structures and
other improvements located thereon, and commonly known as "Meidinger Tower".
2. Contract. "CONTRACT" shall mean that certain Real Estate Sale
--------
Agreement dated _______________, 1998 by and between Assignor, as Seller, and
_________________, as Purchaser, for the purchase and sale of the Property.
3. Permits. "PERMITS" shall mean all certificates of occupancy, special
-------
use permits, elevator inspection certificates, operating permits, and all other
permits issued by any governmental authority relating to the use, occupancy,
ownership or operation of the Property, if any.
4. General Intangibles. "GENERAL INTANGIBLES" shall mean: (i) all
-------------------
warranties and guaranties relating to the Property, (ii) all plans,
specifications and floor plans for the Office Building (as defined in the
Contract); and (iii) all existing intangible personal property pertaining to the
Property, including the name "Meidinger Tower" but excluding any intangible
property pertaining in any way to the rights associated with the name "Equity
Office" or the name of any entity containing the words "Equity Office".
5. Quit Claim Assignment. For good and valuable consideration received
---------------------
by Assignor, the receipt and sufficiency of which are hereby acknowledged,
Assignor hereby quit claims to Assignee the entire right, title and interest of
Assignor, if any, in and to the Permits and General Intangibles, as applicable
to the period from and after the date hereof.
6. Enforcement. If Assignor or Assignee must resort to a court of law or
-----------
equity in order to enforce the provisions of this Assignment as against the
other, the non-prevailing party shall pay the reasonable attorney's fees and
expenses of the prevailing party.
7. Third Parties. Except as set forth in Section 10 of this Assignment,
-------------
no third party shall have the benefit of any of the provisions of this
Assignment, nor is this Assignment made with the intent that any person or
entity other than Assignor or Assignee shall rely hereon.
8. No Representations or Warranties. This Assignment shall not be
--------------------------------
construed as a representation or warranty by Assignor as to the existence,
ownership or transferability of the Permits or the General Intangibles, and
Assignor shall have no liability to Assignee in the event that any or all of the
Permits or the General Intangibles (i) are not transferable to Assignee, or (ii)
are canceled or terminated by reason of this assignment or any acts of Assignee.
<PAGE>
9. Limited Liability. By accepting this Assignment, Assignee expressly
-----------------
understands and agrees that any recovery against Assignor that Assignee may be
entitled to as a result of any claim, demand or cause of action that Assignee
may have against Assignor with respect to this Assignment shall only be
recoverable against Assignor as provided in Section 10(P) of the Contract.
10. Successors and Assigns. This Assignment shall be binding upon and
----------------------
inure to the benefit of the parties hereto and their respective successors and
assigns.
11. Counterparts. This Assignment may be executed in any number of
------------
identical counterparts, any or all of which may contain signatures of fewer than
all of the parties but all of which taken together shall constitute a single
instrument.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY BLANK]
2
<PAGE>
[SIGNATURE PAGE ATTACHED TO QUIT CLAIM ASSIGNMENT OF PERMITS AND GENERAL
INTANGIBLES]
IN WITNESS WHEREOF, Assignor and Assignee have executed this Assignment the
day and year first above written.
ASSIGNOR:
FIRST CAPITAL INCOME AND GROWTH FUND SERIES
XII, an Illinois limited partnership
By: First Capital Financial Corporation, a
Florida corporation, its general partner
By:_____________________________________
Name:___________________________________
Its:____________________________________
ASSIGNEE:
EXHIBITS
--------
A - Legal Description of Property
3
<PAGE>
EXHIBIT S
T.I. AND COMMISSIONS - NEW LEASES APPROVED PRIOR TO DATE OF AGREEMENT
---------------------------------------------------------------------
<TABLE>
<CAPTION>
- ---------------------------------------------------------------------------------------------------------------------------------
Date of Lease or Commission Due Purchaser's Seller's
Tenant Amendment T.I. Reference T.I. Due Per Invoices Share Share
- ---------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
Third Amendment to Paragraph VI of Third
Borden Chemical, Inc. Lease (1) Amendment to Lease (1) $60,000.00 N/A $60,000.00 -
- ---------------------------------------------------------------------------------------------------------------------------------
Total $60,000.00 $60,000.00 $ -
- ---------------------------------------------------------------------------------------------------------------------------------
</TABLE>
(1) Lease with Borden Chemical, Inc., as tenant, a copy of which follows this
page as Schedule I (awaiting signature of all parties).
----------
<PAGE>
EXHIBIT T
T.I. AND COMMISSIONS - EXISTING LEASES
--------------------------------------
<TABLE>
<CAPTION>
- ----------------------------------------------------------------------------------------------------------------------------------
Commission
Date of Lease or Due
Tenant Amendment T.I. Reference T.I. Due (2) Per Invoices Total
- -----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
Per Exh. E, para.
Lease dated September 17, 2, paint and
Advest, Inc. 1996 shampoo carpet $ 19,016.00 N/A $ 19,016.00
- ------------------------------------------------------------------------------------------------------------------------------------
Per Exhibit D,
PDR Engineers, Inc. Lease dated May 20, 1997 paragraph 4 $ 14,980.00 N/A $ 14,980.00
- ------------------------------------------------------------------------------------------------------------------------------------
Lease dated March 4, 1994 Per Exhibit E,
David L. Corrie paragraph II $ 36,646.00 N/A $ 36,646.00
- ------------------------------------------------------------------------------------------------------------------------------------
Per Exh. E,
Nabor, Joyner, Lease dated March 10, 1993 paragraph III,
Schardein & Stinson paint and carpet $ 21,655.00 N/A $ 21,655.00
- ------------------------------------------------------------------------------------------------------------------------------------
Fourth Lease Amendment Per Exhibit C,
Seiller & Handmaker, LLP dated September 17, 1996 paragraph V $ 47,340.00 N/A $ 47,340.00
- ------------------------------------------------------------------------------------------------------------------------------------
Per Exhibit D,
Compression, Inc. (1) Lease dated May 7, 1997 paragraph I $ 60,082.50 $24,427.64 $ 84,510.14
- ------------------------------------------------------------------------------------------------------------------------------------
Lease dated January 19, Per Exhibit D,
Payton Enterprises, Inc. (1) 1998 paragraph 7 $ 24,020.00 $13,228.29 $ 37,248.29
- ------------------------------------------------------------------------------------------------------------------------------------
Total $223,739.50 $37,655.93 $261,395.43
- ------------------------------------------------------------------------------------------------------------------------------------
<CAPTION>
- --------------------------------------------------------------------
Purchaser's Seller's
Tenant Share Share
- --------------------------------------------------------------------
<S> <C> <C>
Advest, Inc. $ 15,300.36 $ 3,715.64
- --------------------------------------------------------------------
PDR Engineers, Inc. $ 12,665.84 $ 2,314.16
- --------------------------------------------------------------------
David L. Corrie $ 20,332.82 $ 16,313.18
- --------------------------------------------------------------------
Nabor, Joyner,
Schardein & Stinson $ 13,417.88 $ 8,237.12
- --------------------------------------------------------------------
Seiller & Handmaker, LLP $ 39,309.22 $ 8,030.78
- --------------------------------------------------------------------
Compression, Inc. (1) $ 84,510.14 $ -
- --------------------------------------------------------------------
Payton Enterprises, Inc. $ 37,248.29 $ -
(1)
- --------------------------------------------------------------------
Total $222,784.55 $ 38,610.88
- --------------------------------------------------------------------
</TABLE>
(1) Commencement date of Compression, Inc. is 9/1/98 and expected commencement
date of Payton Enterprises, Inc. is 4/1/98.
(2) No specified T.I. for Advest or Nabor, Joyner, et al. Assume $4/sf for
Advest and $5/sf for Nabor, Joyner et al.
<PAGE>
EXHIBIT U
SETTLEMENT OF ASSESSED VALUES -- APPLICABLE TAX AND/OR CALENDAR YEARS
---------------------------------------------------------------------
1. Calendar Year 1992
2. Calendar Year 1993
3. Calendar Year 1994
4. Calendar Year 1995
5. Calendar Year 1996
<PAGE>
EXHIBIT V
PROSPECTIVE TENANT LIST--HARRY K. MOORE
---------------------------------------
- ---------------------------------------------------------------
GTE
- ---------------------------------------------------------------
Clear Logic
- ---------------------------------------------------------------
Professional Search Consultants
- ---------------------------------------------------------------
Heine Brothers
- ---------------------------------------------------------------
Johnson & Higgins
- ---------------------------------------------------------------
WDRB
- ---------------------------------------------------------------
Hoffman, York
- ---------------------------------------------------------------
That's a Wrap
- ---------------------------------------------------------------
<PAGE>
EXHIBIT W
SPECIAL WARRANTY DEED
---------------------
THIS DEED made this ____ day of __________, 1998, between FIRST CAPITAL
INCOME AND GROWTH FUND SERIES XII, an Illinois limited partnership, of Two North
Riverside Plaza, Chicago, Illinois 60606, Party of the First Part, and
[PURCHASER], of [ADDRESS OF PURCHASER], Party of the Second Part;
W I T N E S S E T H:
-------------------
That for a valuable consideration paid in the amount of Twenty-Eight
Million Four Hundred Fifty Thousand Dollars ($28,450,000.00), the receipt and
sufficiency of which is hereby acknowledged, the Party of the First Part hereby
sells and conveys unto the Party of the Second Part in fee simple, with covenant
of Special Warranty, the following described real estate situated in Jefferson
County, Kentucky, to-wit:
SEE EXHIBIT A ATTACHED HERETO AND MADE A PART HEREOF.
---------
Party of the First Part covenants that it, its successors and assigns,
shall warrant and defend the property herein conveyed unto Party of the Second
Part, its successors and assigns, against the lawful claims of all persons
claiming by, through, or under Party of the First Part, but not otherwise,
subject, however, to the matters set forth on EXHIBIT B attached hereto and made
---------
a part hereof.
IN TESTIMONY WHEREOF, witness the signature of the Party of the First Part
this day and year first above written.
PARTY OF THE FIRST PART:
FIRST CAPITAL INCOME AND GROWTH FUND SERIES
XII, an Illinois limited partnership
By: First Capital Financial Corporation, a
Florida corporation, its general partner
By:_____________________________________
Name:___________________________________
Its:____________________________________
<PAGE>
STATE OF ILLINOIS :
COUNTY OF COOK :
The foregoing Deed was acknowledged before me this ____ day of __________,
1998.
My Commission expires:____________________________.
___________________________________
NOTARY PUBLIC
CONSIDERATION CERTIFICATE
-------------------------
Party of the First Part and Party of the Second Part certify that the
consideration stated in the foregoing deed is the true, correct, and full
consideration paid for the property therein conveyed.
PARTY OF THE FIRST PART: PARTY OF THE SECOND PART:
FIRST CAPITAL INCOME AND GROWTH ______________________________________
FUND SERIES
By: First Capital Financial Corporation,
a Florida corporation, its general partner
By:____________________________________
Name:__________________________________
Its:___________________________________
STATE OF ____________ :
COUNTY OF ___________ :
The foregoing Consideration Certificate was subscribed, sworn to, and
acknowledged before me this ____ day of __________, 1998, by
______________________, the Party of the First Part.
My Commission expires:____________________________.
___________________________________
NOTARY PUBLIC
2
<PAGE>
STATE OF ____________ :
COUNTY OF ___________ :
The foregoing Consideration Certificate was subscribed, sworn to, and
acknowledged before me this ____ day of __________, 1998 by
_____________________, the Party of the Second Part.
My Commission expires:____________________________.
___________________________________
NOTARY PUBLIC
THIS INSTRUMENT PREPARED BY:
ROSENBERG & LIEBENTRITT, P.C.
BY:________________________________
STEVEN E. EHRLICH
Two North Riverside Plaza
Suite 1600
Chicago, Illinois 60606
(312) 466-3456
EXHIBITS
--------
EXHIBIT A - Legal Description
EXHIBIT B - Permitted Exceptions
3
<PAGE>
EXHIBIT X
LEASE DEFAULTS - SELLER
-----------------------
NONE.
<PAGE>
EXHIBIT Y
REVISIONS TO DECEMBER SURVEY
----------------------------
Exhibit Y follows this page
