SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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): October 17, 1997
ARVIDA/JMB PARTNERS, L.P.
--------------------------
Delaware 0-16976 36-3507015
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(State of (Commission (IRS Employer
Organization) File Number) Identification No.)
900 North Michigan Avenue, Chicago, Illinois 60611
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(Address of principal executive offices, including zip code)
Registrant's telephone number, including area code: (312) 915-1987
-------------------------------------------------------------------
N/A
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(Former name or former address, if changed since past report)
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<PAGE>
ARVIDA/JMB PARTNERS, L.P.
ITEM 2. DISPOSITION OF ASSETS. On October 17, 1997, Arvida/JMB Partners,
L.P. (the "Partnership") closed on the sale of Arvida Parkway Center, which
contains approximately 258,000 square feet of space in a mix of offices,
restaurants, retail and financial institutions, and a Radisson Suite Hotel,
in Boca Raton, Florida, to Stanford Lake Hotel, Inc., Boca Lake Office,
Inc. and Boca Lake Retail, Inc. (collectively referred to as the "Buyers").
The Partnership made certain representations, warranties and indemnities
for the benefit of the Buyers under the Sale and Purchase Agreement which
will survive the closing for a period of one year from the date of closing.
The Buyers are not affiliated with the Partnership or its General Partner,
and the gross sale price of $38,500,000 was determined by arm's-length
negotiations. Net cash proceeds from the sale, after prorations and
closing costs, totaled $36,358,966.
ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS
(a) Financial Statements of Business Acquired
Not applicable
(b) Pro Forma Financial Information
See Attached
(c) Exhibits
2.1 Agreement for Sale and Purchase of Real Property dated
July 25, 1997 by and between Center Retail Partners, Center Office
Partners, Center Hotel Limited Partnership, and Arvida/JMB Partners, L.P.
and Stanford Hotels Corporation for the sale of Arvida Parkway Center
located in Boca Raton, Florida, is filed herewith.
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<PAGE>
SIGNATURE
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.
ARVIDA/JMB PARTNERS, L.P.
By: ARVIDA/JMB MANAGERS, INC.,
its General Partner
GAILEN J. HULL
By: Gailen J. Hull
Vice President
Date: November 3, 1997
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<PAGE>
<TABLE>
PROFORMA FINANCIAL INFORMATION
ARVIDA/JMB PARTNERS, L.P.
(A LIMITED PARTNERSHIP)
AND CONSOLIDATED VENTURES
CONSOLIDATED BALANCE SHEET
<CAPTION>
Pro Forma
Historical Adjustments Pro Forma
June 30, for Disposi- June 30,
1997 tion (1) 1997
---------- ----------- ----------
<S> <C> <C> <C>
ASSETS
Cash and cash equivalents. . . . . . . . . . . . . . . $ 14,427,301 26,540,672 40,967,973
Restricted cash. . . . . . . . . . . . . . . . . . . . 12,940,165 12,940,165
Trade and other accounts receivable
(net of allowance for doubtful accounts
of $248,351 at June 30, 1997). . . . . . . . . . . . 7,497,602 (25,020) 7,472,582
Mortgages receivable, net. . . . . . . . . . . . . . . 757,180 757,180
Real estate inventories. . . . . . . . . . . . . . . . 182,292,695 182,292,695
Property and equipment held for sale or
disposition. . . . . . . . . . . . . . . . . . . . . 41,279,342 (24,385,667) 16,893,675
Property and equipment, net. . . . . . . . . . . . . . 38,110,789 38,110,789
Investments in and advances to joint ventures,
net. . . . . . . . . . . . . . . . . . . . . . . . . 2,735,074 2,735,074
Equity memberships . . . . . . . . . . . . . . . . . . 4,984,918 4,984,918
Amounts due from affiliates. . . . . . . . . . . . . . 1,182,128 1,182,128
Prepaid expenses and other assets. . . . . . . . . . . 7,824,833 (1,173,766) 6,651,067
------------ ----------- ------------
Total assets . . . . . . . . . . . . . . . . $314,032,027 956,219 314,988,246
============ =========== ============
LIABILITIES
Accounts payable . . . . . . . . . . . . . . . . . . . $ 17,581,054 17,581,054
Deposits . . . . . . . . . . . . . . . . . . . . . . . 22,093,897 (233,307) 21,860,590
Accrued expenses and other liabilities . . . . . . . . 15,119,741 (420,596) 14,699,145
Notes and mortgages payable, net . . . . . . . . . . . 30,177,914 (9,983,793) 20,194,121
------------ ----------- ------------
Commitments and contingencies
Total liabilities. . . . . . . . . . . . . . $ 84,972,606 (10,637,696) 74,334,910
============ =========== ============
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<PAGE>
PROFORMA FINANCIAL INFORMATION
ARVIDA/JMB PARTNERS, L.P.
(A LIMITED PARTNERSHIP)
AND CONSOLIDATED VENTURES
CONSOLIDATED BALANCE SHEET - CONTINUED
Pro Forma
Historical Adjustments Pro Forma
June 30, for Disposi- June 30,
1997 tion (1) 1997
---------- ----------- ----------
Partners' capital accounts (deficits):
General Partner and Associated Limited Partner:
Capital contributions. . . . . . . . . . . . . . . $ 20,000 20,000
Cumulative net income. . . . . . . . . . . . . . . 37,097,572 255,570 37,353,142
Cumulative cash distributions. . . . . . . . . . . (35,839,796) (35,839,796)
------------ ----------- ------------
1,277,776 255,570 1,533,346
------------ ----------- ------------
Limited partners:
Capital contributions. . . . . . . . . . . . . . . 364,841,815 364,841,815
Cumulative net income. . . . . . . . . . . . . . . 39,734,696 11,338,345 51,073,041
cumulative cash distributions. . . . . . . . . . . (176,794,866) (176,794,866)
------------ ----------- ------------
227,781,645 11,338,345 239,119,990
------------ ----------- ------------
Total partners' capital accounts . . . . . . 229,059,421 11,593,915 240,653,336
------------ ----------- ------------
Total liabilities and
partners' accounts . . . . . . . . . . . . $314,032,027 956,219 314,988,246
============ =========== ============
<FN>
(1) The 1997 unaudited pro forma consolidated financial statements give effect to the sale of Arvida
Parkway Center in Boca Raton, Florida (the "Plaza") as if the sale had occurred, for balance sheet purposes, on
June 30, 1997 and, for statement of operation purposes, on the earliest date presented.
</TABLE>
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<PAGE>
<TABLE>
PROFORMA FINANCIAL INFORMATION
ARVIDA/JMB PARTNERS, L.P.
(A LIMITED PARTNERSHIP)
AND CONSOLIDATED VENTURES
CONSOLIDATED STATEMENT OF OPERATIONS
<CAPTION>
Historical Pro Forma
Six Months Pro Forma Six Months
Ended Adjustments Ended
June 30, for Disposi- June 30,
1997 tion (1) 1997
---------- ----------- ----------
<S> <C> <C> <C>
Revenues:
Housing. . . . . . . . . . . . . . . . . . . . . . . $ 77,890,164 77,890,164
Homesites. . . . . . . . . . . . . . . . . . . . . . 8,731,704 8,731,704
Land and property. . . . . . . . . . . . . . . . . . 3,280,349 3,280,349
Operating properties . . . . . . . . . . . . . . . . 16,780,263 (5,035,641) 11,744,622
Brokerage and other operations . . . . . . . . . . . 11,689,258 11,689,258
------------ ------------ ------------
Total revenues . . . . . . . . . . . . . . . 118,371,738 (5,035,641) 113,336,097
------------ ------------ ------------
Cost of revenues:
Housing. . . . . . . . . . . . . . . . . . . . . . . 67,382,639 67,382,639
Homesites. . . . . . . . . . . . . . . . . . . . . . 5,214,387 5,214,387
Land and property. . . . . . . . . . . . . . . . . . 2,527,779 2,527,779
Operating properties . . . . . . . . . . . . . . . . 13,939,744 (3,553,067) 10,386,677
Brokerage and other operations . . . . . . . . . . . 11,176,450 11,176,450
------------ ------------ ------------
Total cost of revenues . . . . . . . . . . . 100,240,999 (3,553,067) 96,687,932
------------ ------------ ------------
Gross operating profit . . . . . . . . . . . . . . . . 18,130,739 (1,482,574) 16,648,165
Selling, general and administrative expenses . . . . . (12,199,315) (12,199,315)
------------ ------------ ------------
Net operating income . . . . . . . . . . . . 5,931,424 (1,482,574) 4,448,850
Interest income. . . . . . . . . . . . . . . . . . . . 1,031,386 1,031,386
Equity in earnings of unconsolidated ventures. . . . . 19,805 19,805
Interest and real estate taxes . . . . . . . . . . . . (1,972,050) 482,446 (1,489,604)
------------ ------------ ------------
Net income . . . . . . . . . . . . . . . . . $ 5,010,565 1,000,128 4,010,437
============ ============ ============
Net income per Limited
Partnership Interest . . . . . . . . . . . $ 9.07 (2.48) 6.59
============ ============ ============
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<PAGE>
PROFORMA FINANCIAL INFORMATION
ARVIDA/JMB PARTNERS, L.P.
(A LIMITED PARTNERSHIP)
AND CONSOLIDATED VENTURES
CONSOLIDATED STATEMENT OF OPERATIONS - CONTINUED
<FN>
(1) The 1997 unaudited pro forma consolidated financial statements give effect to the sale of Arvida
Parkway Center in Boca Raton, Florida (the "Plaza") as if the sale had occurred, for balance sheet purposes, on
June 30, 1997 and, for statement of operation purposes, on the earliest date presented.
</TABLE>
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<PAGE>
<TABLE>
PROFORMA FINANCIAL INFORMATION
ARVIDA/JMB PARTNERS, L.P.
(A LIMITED PARTNERSHIP)
AND CONSOLIDATED VENTURES
CONSOLIDATED STATEMENT OF OPERATIONS
<CAPTION>
Historical Pro Forma Pro Forma
Year Ended Adjustments Year Ended
December 31, for Disposi- December 31,
1997 tion (1) 1997
------------- ----------- -----------
<S> <C> <C> <C>
Revenues:
Housing. . . . . . . . . . . . . . . . . . . . . . . $236,236,822 236,236,822
Homesites. . . . . . . . . . . . . . . . . . . . . . 23,652,202 23,652,202
Land and property. . . . . . . . . . . . . . . . . . 25,979,069 25,979,069
Operating properties . . . . . . . . . . . . . . . . 29,985,372 (9,467,833) 20,517,539
Brokerage and other operations . . . . . . . . . . . 26,959,804 26,959,804
------------ ------------ ------------
Total revenues . . . . . . . . . . . . . . . 342,813,269 (9,467,833) 333,345,436
------------ ------------ ------------
Cost of revenues:
Housing. . . . . . . . . . . . . . . . . . . . . . . 202,965,915 202,965,915
Homesites. . . . . . . . . . . . . . . . . . . . . . 15,486,069 15,486,069
Land and property. . . . . . . . . . . . . . . . . . 18,554,274 18,554,274
Operating properties . . . . . . . . . . . . . . . . 28,560,746 (8,173,705) 20,387,041
Brokerage and other operations . . . . . . . . . . . 25,389,876 25,389,876
------------ ------------ ------------
Total cost of revenues . . . . . . . . . . . 290,956,880 (8,173,705) 282,783,175
------------ ------------ ------------
Gross operating profit . . . . . . . . . . . . . . . . 51,856,389 (1,294,128) 50,562,261
Selling, general and administrative expenses . . . . . (22,554,641) (22,554,641)
------------ ------------ ------------
Net operating income . . . . . . . . . . . . 29,301,748 (1,294,128) 28,007,620
Interest income. . . . . . . . . . . . . . . . . . . . 1,567,646 1,567,646
Equity in earnings (losses) of
unconsolidated ventures. . . . . . . . . . . . . . . (177,864) (177,864)
Interest and real estate taxes . . . . . . . . . . . . (2,680,106) (237,615) (1,623,593)
------------ ------------ ------------
Net income . . . . . . . . . . . . . . . . . $ 28,011,424 (237,615) 27,773,809
============ ============ ============
Net income per Limited
Partnership Interest . . . . . . . . . . . $ 67.47 (0.59) 66.88
============ ============ ============
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<PAGE>
PROFORMA FINANCIAL INFORMATION
ARVIDA/JMB PARTNERS, L.P.
(A LIMITED PARTNERSHIP)
AND CONSOLIDATED VENTURES
CONSOLIDATED STATEMENT OF OPERATIONS - CONTINUED
<FN>
(1) The 1997 unaudited pro forma consolidated financial statements give effect to the sale of Arvida
Parkway Center in Boca Raton, Florida (the "Plaza") as if the sale had occurred, for balance sheet purposes, on
June 30, 1997 and, for statement of operation purposes, on the earliest date presented.
</TABLE>
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EXHIBIT 2.1
- -----------
AGREEMENT FOR SALE
AND PURCHASE OF REAL PROPERTY
between
CENTER RETAIL PARTNERS,
CENTER OFFICE PARTNERS,
CENTER HOTEL LIMITED PARTNERSHIP and
ARVIDA/JMB PARTNERS, L.P.
and
ARVIDA PARKWAY CENTER
Boca Raton, Florida
________________, 1997
<PAGE>
AGREEMENT FOR SALE
AND PURCHASE OF REAL PROPERTY
THIS AGREEMENT is made as of the ____ day of _______, 1997, by
and among CENTER RETAIL PARTNERS, a Florida general partnership ("Retail"),
CENTER OFFICE PARTNERS, a Florida general partnership ("Office"), CENTER
HOTEL LIMITED PARTNERSHIP, a Delaware limited partnership ("Hotel"), and
ARVIDA/JMB PARTNERS, L.P., a Delaware limited partnership ("Arvida", and
collectively with Retail, Office and Hotel, the "Seller"), and
________________________________, a ____________________ (the "Buyer").
For and in consideration of the sum of Ten Dollars ($10.00),
the mutual covenants and agreements herein set forth and other good and
valuable considerations, the receipt and sufficiency of which are hereby
acknowledged, Seller agrees to sell to Buyer, and Buyer agrees to purchase
from Seller, for the price and on the terms and conditions herein set
forth, all of Seller's right, title and interest in and to the Property.
Section 1. DEFINITIONS AND REFERENCES.
The following terms, as used in this Agreement, have the
following meanings and references unless the context is inconsistent
therewith:
(a) "Accrued Hotel Employee Benefits" is defined in
Section 4.8 hereof.
(b) "Additional Deposit" means Five Hundred Thousand
and 00/100 Dollars ($500,000.00).
(c) "Adjustment Date" means midnight (12:00 p.m.) of
the night prior to Closing Date.
(d) "Agreement Date" means the first date upon which
this Agreement has been executed by both Seller and Buyer.
(e) "Approved Lease(s)" means collectively (i) the
Leases, (ii) all Proposed Leases made by Seller during the Inspection
Period as provided in Section 6.2(a), and (iii) all Proposed Leases made by
Seller after the Inspection Termination Date with Buyer's approval as
provided in Section 6.2(b) which become Approved Leases in accordance with
the terms of said Sections 6.2(a) and (b) hereof.
(f) "Broker" is defined in Section 10 hereof.
<PAGE>
(g) "CAM Charges" is defined in Section 9.5(a)(iv)
hereof.
(h) "Claims" is defined in Section 12.3 hereof.
(i) "Closing" means the consummation of the sale and
conveyance of the Property by or on behalf of Seller to Buyer and payment
of the Purchase Price by Buyer to Seller, pursuant to Section 9 hereof.
(j) "Closing Commitment" is defined in Section 3.2
hereof.
(k) "Closing Date" means the date upon which the
Closing occurs, as set forth in Section 9.1 hereof.
(l) "Contracts" means the contracts and agreements,
whether oral (other than Leases) or written, affecting the Property
(excluding, however, Seller's national purchasing agreements) described in
Schedule S-1(l).
(m) "County" means Palm Beach County, a political
subdivision of the State of Florida.
(n) "Dames & Moore Report" means the written report of
Dames & Moore dated March 28, 1997, concerning the environmental condition
of the Real Property.
(o) "Declaration" means the Parkway Center Declaration
of Covenants, Restrictions and Reciprocal Easements dated April 6, 1988,
and recorded in Official Records Book 5653, at Page 766, of the Public
Records of the County.
(p) "Deposits" means the Initial Deposit and the
Additional Deposit.
(q) "Escrow Agent" means White & Case.
(r) "Hazardous Substances" means (i) those substances
included within the definitions of "hazardous substances," "hazardous
materials," "toxic substances" or "solid waste" in the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, 42 U.S.C.
Section 9601 et seq., the Resource Conservation and Recovery Act of 1976,
42 U.S.C. Section 6901 et seq., the Hazardous Materials Transportation Act,
49 U.S.C. Section 1801 et seq., or the Clean Water Act, 33 U.S.C. Section
1321 et seq., and in the regulations promulgated pursuant thereto; (ii)
those substances listed in the United States Department of Transportation
Table (49 CFR Section 172.101) or by the Environmental Protection Agency as
"hazardous substances," (iii) such other substances, materials and wastes
which are regulated, or classified as hazardous or toxic, under applicable
local, state or federal law or regulations, and (iv) any material, waste or
substance which is or contains petroleum, asbestos, polychlorinated
biphenyls, flammable explosives or radioactive materials.
(s) "Herein" or "hereof" means this entire Agreement
rather than just the sentence, paragraph or section in which used.
<PAGE>
(t) "Hotel License Agreement" means the License
Agreement dated April 8, 1985, between Hotel and Carlson Hospitality Group,
Inc., attached hereto as Exhibit B.
(u) "Improvements" means all buildings, structures and
other improvements existing upon the Land.
(v) "Including," "include" or "includes" mean including
as an example, without limiting the generality of the description.
(w) "Initial Deposit" means Five Hundred Thousand and
00/100 Dollars ($500,000.00).
(x) "Indemnitee" is defined in Section 12.3 hereof.
(y) "Indemnitor" is defined in Section 12.3 hereof.
(z) "Inspection Indemnity" is defined in Section 7.1
hereof.
(aa) "Inspection Period" is defined in Section 7.1
hereof.
(bb) "Inspection Termination Date" is defined in Section
7.1 hereof.
(cc) "Intangible Personal Property" means the intangible
personal property used by Seller exclusively in connection with the
Property and includes all of Seller's interest in all assignable credit
records, promotional literature, security codes, assignable telephone
numbers, warranties and guarantees, trademarks, if any, and trade names,
including Seller's limited right, title and interest, if any, in and to the
name "Radisson Hotel" subject to all limitations set forth in the License
Agreement, but excluding the names "Arvida," JMB and all derivatives
thereof.
(dd) "Land" means the real property described on Exhibit
A, together with all tenements, hereditaments, easements, privileges,
reversions, remainders and other rights and appurtenances belonging or in
any manner appertaining thereto, including all reversionary interests in
and to any adjoining or abutting rights-of-way and all riparian, littoral
and other water rights.
(ee) "Leases" means the leases for the use or occupancy
of portions of the Real Property, described in Schedule S-4.5.
(ff) "Losses" is defined in Section 12.3 hereof.
(gg) "Management Agreement" means the Management
Agreement made as of March 1, 1992, between Office and JMB Properties
Company, and assigned by JMB Properties Company to Heitman Florida
Management, Inc.
(hh) "Parking Arrangement" means the parking arrangement
shown in that certain survey prepared by W.L. Fish & Company, dated October
22, 1996.
<PAGE>
(ii) "Permits" means the permits for the use and
occupancy of any portion of the Real Property, including those described in
Schedule S-1(ii).
(jj) "Permitted Exceptions" means those conditions of
title to the Real Property for which exception is made in Schedule B,
Section 2 of the Title Commitment as the same exists on the Inspection
Termination Date.
(kk) "Person" means any individual, partnership, joint
venture, firm, corporation, limited liability company, association, trust
or other enterprise, or any government or political subdivision or any
agency, department or instrumentality thereof.
(ll) "Personalty" means the Tangible Personal Property
and Intangible Personal Property.
(mm) "Property" means Seller's right, title and interest
in and to the Real Property, Personalty, Contracts, Leases, Permits and
other property being sold pursuant to this Agreement.
(nn) "Proposed Lease" is defined in Section 6.2(a)
hereof.
(oo) "Purchase Price" is defined in Section 2.1 hereof.
(pp) "Real Property" means the Land and the
Improvements.
(qq) "Seller's Knowledge" means the Actual Knowledge of
James Motta, John Grab, Ingrid Fulmer and Sherry Smith.
(rr) "Settlement Agreement" means the Settlement
Agreement entered into by and among Seller, Restaurant Associates, Ltd. and
Pete's Cafe and Catering, Inc., made as of November 11, 1996.
(ss) "Survey" means the ALTA survey of the Real Property
prepared by the Surveyor.
(tt) "Surveyor" means the licensed Florida land surveyor
to which Seller and Buyer mutually agree.
(uu) "Tangible Personal Property" means property used
exclusively in connection with the Property, including the furniture,
fixtures, and equipment described in a schedule to be delivered by Seller
to Buyer within 10 days following the Agreement Date, along with any spare
parts related thereto, and to the extent owned by Seller and assignable,
data processing hardware, food, beverage, fuel and equipment inventories,
Hotel inventory (including food and liquor in unbroken packages and stocks
of operating, engineering, guest and housekeeping supplies) located in the
Hotel (but excluding the Fidelio accounting software system and all
computer hardware and software located outside of the Hotel building), all
of the fixtures, furnishings and equipment owned by Seller and located on
the Land, and materials owned by Seller and used in connection with
maintenance of the Property grounds, office
<PAGE>
supplies, cleaning supplies, paper products and all other tangible personal
property and inventory owned by Seller and used in the conduct of the
Property operations.
(vv) "Title Agent" means an Affiliate of Gold Coast
Title Company, acting as agent for the Underwriter, by which the Title
Commitment and Title Policy will be issued.
(ww) "Title Commitment" means the ALTA Form B Owner
Marketability Title Insurance Commitment, issued or to be issued to Buyer
with respect to the Real Property, as set forth in Section 3.1 hereof,
which will include copies of all matters for which exception is made in
Schedule B, Section II thereof.
(xx) "Title Cure Period" is defined in Section 3.1
hereof.
(yy) "Title Notice" is defined in Section 3.1 hereof.
(zz) "Title Objection" means (a) any condition of title
to the Real Property set forth in Schedule B, Section 2 of the Title
Commitment to which Buyer objects during the Inspection Period, and (b) any
condition of title arising after the Inspection Termination Date and prior
to Closing, other than a condition caused by Buyer, which affects the
marketability of title to the Real Property.
(aaa) "Title Policy" means the ALTA Form B Owner
Marketability Title Insurance Policy to be issued to Buyer pursuant to the
Title Commitment, subject only to the Permitted Exceptions.
(bbb) "Underwriter" means Ticor Title Insurance Company
or another nationally recognized title insurer acceptable to Buyer, for and
upon whom the Title Commitment and Title Policy are to be issued.
Section 2. PURCHASE PRICE AND TERMS OF PAYMENT.
2.1 PURCHASE PRICE. The purchase price for the Property (the
"Purchase Price") will be the amount of __________________________________.
During the Inspection Period, Seller and Buyer will attempt to reach
agreement concerning the proper allocation of the Purchase Price between
the Real Property and the Personalty.
2.2 TERMS OF PAYMENT. The Purchase Price will be paid as
follows:
(a) On the Agreement Date, Buyer will deliver the
Initial Deposit, and upon the expiration of the Inspection Period unless
Buyer elects to terminate this Agreement as set forth in Section 7.3, Buyer
will deliver the Additional Deposit, to Escrow Agent; and
(b) the balance of the Purchase Price, subject to the
prorations and adjustments for which provision is made in Section 9.5
hereof, will be paid by Buyer to Seller, through the Title Agent, by
federal wire transfer of immediately available funds at the time of
Closing.
<PAGE>
The Deposits will be held by Escrow Agent in an interest-
bearing account with an institution the deposits in which are insured by an
agency of the United States, or upon joint instructions of Seller and Buyer
invested in securities of the United States, and disbursed in accordance
with this Agreement; and interest accruing thereon will constitute part of
the Deposits. The Deposits will be "at risk" after the expiration of the
Inspection Period, and at Closing will be paid to Seller and credited to
Buyer against the Purchase Price.
Section 3. TITLE EVIDENCE.
3.1 ISSUANCE, EXAMINATION, OBJECTION AND CURE. Within ten
(10) days after the Agreement Date, Seller, at Buyer's expense, will cause
the Title Agent to issue to Buyer the Title Commitment, certified to a date
subsequent to the Agreement Date, and the Surveyor to prepare a survey of
the Real Property conforming to the Minimum Technical Standards for Florida
Land Surveys (the "Survey"), and Buyer will have ten (10) days after the
later received of the Title Commitment and the Survey to review the Title
Commitment and Survey and to notify Seller in writing (a "Title Notice") of
any condition of Seller's title which is unacceptable to Buyer (a "Title
Objection"). Buyer's failure timely to notify Seller of any Title
Objections conclusively will be deemed an acceptance and approval of
Seller's title to the Real Property, including all Title Objections.
Seller may, at its option (but will not be obligated) during the period of
thirty (30) days after receipt of a Title Notice (the "Title Cure Period"),
attempt to cure or remove any Title Objection(s). If Seller fails or
elects not to correct any Title Objections within the Title Cure Period, or
if any Title Objection arises after the Inspection Termination Date and
prior to Closing and Seller is unable or elects not to remove such Title
Objection, Buyer may, as its only options in such event, either terminate
this Agreement by written notice to Seller, in which event Escrow Agent
will return the Deposits to Buyer and this Agreement will be null and void
of no further force or effect except with respect to the Inspection
Indemnity, or Buyer may waive the uncured Title Defect and proceed
hereunder without adjustment to the Purchase Price.
3.2 CLOSING COMMITMENT. At Closing, Seller will cause Title
Agent to issue to Buyer an endorsement to the Title Commitment or a "marked
up" duplicate original of the Title Commitment (the "Closing Commitment"),
reflecting that all requirements of the Title Commitment have been
fulfilled or waived and eliminating the "gap exception," the standard ALTA
exceptions and any exceptions for Title Defects to which Buyer has timely
objected, and extending the effective date of coverage through recording of
the deed of conveyance to Buyer. The Title Policy will be delivered to
Buyer promptly after Closing.
Section 4. SELLER'S REPRESENTATIONS AND WARRANTIES.
Seller hereby represents and warrants to Buyer as follows:
4.1 ORGANIZATION AND STANDING OF SELLER. (i) Retail and
Office are Florida general partnerships duly organized and validly existing
under the laws of the State of Florida and Hotel is a Delaware limited
partnership duly organized and validly existing under the laws of the State
of Delaware; (ii) each has all requisite partnership power and authority to
own its properties and assets and to carry on its business as now being
conducted; and (iii) each has full partnership power and authority to
execute, deliver and perform this Agreement and to
<PAGE>
consummate the transactions contemplated hereby, including the execution,
delivery and performance of each of the documents required to be delivered
by Seller to Buyer pursuant to this Agreement, and any and all other
documents or instruments necessary or desirable to the consummation hereof.
4.2 DUE EXECUTION AND PERFORMANCE. This Agreement has been,
and the deed of conveyance and all other documents, instruments and
agreements required to be delivered by Seller pursuant to or in connection
with this Agreement will be when executed and delivered, duly authorized,
executed and delivered by Seller and constitute the legal, valid and
binding obligations of Seller enforceable in accordance with their
respective terms, subject only to bankruptcy, insolvency or similar laws
affecting enforcement of creditors' rights generally, as the same may be
applicable to any insolvency of Seller or Buyer. Neither the execution,
delivery or performance of this Agreement, or any document, instrument or
agreement required to be delivered by Seller pursuant hereto, nor the
consummation of the transactions contemplated hereby, is prohibited by, or
requires Seller to obtain the consent (except as set forth in Schedule S-
4.2 hereof), approval or authorization of, or notice to or filing or
registration with, any Person.
4.3 ABSENCE OF SELLER CONFLICTS. The execution and delivery
by Seller of this Agreement and the performance by Seller of its
obligations hereunder do not and will not (i) conflict with any provision
of the partnership agreements or other governing documents of Seller; or
(ii) to the best of Seller's Knowledge, conflict with, or result in a
material breach of, or a material default or a violation under, any
contract, agreement or arrangement to which Seller is a party or any
statute, decree, judgment, regulation, order or rule of any governmental
authority having jurisdiction over Seller or the Property.
4.4 HAZARDOUS SUBSTANCES. Except as set forth in Schedule S-
4.4 to this Agreement, or as otherwise may be disclosed by the Dames &
Moore Report, to Seller's Knowledge there presently does not exist, and
Seller has received no written notice from any governmental or quasi-
governmental agencies of (i) any Hazardous Substance present on or within
the Property, except in compliance with applicable law, (ii) any present or
past generation, recycling, reuse, sale, storage, handling, transport
and/or disposal of any Hazardous Substance on or within the Property,
except in compliance with applicable law, or (iii) any failure to comply in
any material respect with any applicable local, state or federal
environmental laws, regulations, ordinances or administrative or judicial
orders relating to the generation, recycling, reuse, sale, storage,
handling, transport and/or disposal of any Hazardous Substance. To
Seller's Knowledge, Seller has not received any written notice from any
governmental or quasi-governmental authority regarding the presence of any
Hazardous Substance, any present or past generation, recycling, reuse,
sale, storage, handling, transport and/or disposal of any Hazardous
Substance or any failure to comply in any material respect with any
applicable local, state or federal environmental laws, regulations,
ordinances or administrative or judicial orders relating to the generation,
recycling, reuse, sale, storage, handling, transport and/or disposal of any
Hazardous Substance. Notwithstanding the foregoing, Buyer acknowledges
receipt of, and that Seller's Knowledge is deemed to include, all matters
included in the Dames & Moore Report.
<PAGE>
4.5 LEASES. Schedule S-4.5 sets forth all leases of portions
of the Real Property and with respect to each Lease, as of the Agreement
Date, the name of the tenant, the location and the gross leasable area of
any space leased, the monthly rent due thereunder, the Lease termination
date and security deposits.
4.6 LITIGATION. Schedule S-4.6 contains a current list of
all actions, suits and proceedings pending, or to Seller's Knowledge
threatened, against or concerning the Property. No action, suit or other
proceeding against or concerning the Property, either alone or in the
aggregate, materially and adversely affects the Property or the use or
development thereof in accordance with applicable zoning or Seller's
ability to carry out the transactions contemplated by this Agreement.
Seller has received no written notice of any pending or threatened
condemnation, taking or similar proceeding affecting the Property, or any
pending public improvements which would result in, nor has Seller received
written notice of, special assessments affecting the Property.
4.7 LAND USE. Seller has not received any written notice
from the County that the Land is not in substantial compliance with the
County regulations and restrictions applicable to the zoning district
within which the Land is situated, and except as set forth in the Leases
and the Permitted Exceptions to Seller's Knowledge there are no covenants,
restrictions or other agreements with or in favor of any governmental
authority or other Person limiting in any material respect use of the Real
Property for the purposes permitted by the regulations governing such
zoning district.
4.8 HOTEL EMPLOYEES. Schedule S-4.8 hereto sets forth, to
Seller's Knowledge, the names of all employees of the Hotel, and the amount
of accrued unused sick and/or vacation time and severance pay, if any, due
to each such employee upon termination of his or her employment (the
"Accrued Hotel Employee Benefits").
4.9 CONTRACTS. The Contracts are the only contracts
currently in force in relation to the Property other than agreements which
can be terminated upon not more than thirty (30) days notice without
penalty or premium.
4.10 ACCURACY OF SELLER REPRESENTATIONS. The statements and
information of Seller set forth in this Agreement (a) constitute the only
statements and information concerning Seller, the Property or the
transaction which is the subject of this Agreement made by or on behalf of
Seller, and (b) are true and correct in every material respect; and no
representation or warranty by Seller in this Agreement, or any statement,
certificate or attachment furnished or to be furnished by Seller to Buyer
pursuant to this Agreement, or in connection with the transactions
contemplated by this Agreement, contains any untrue statement of a material
fact, or omits to state a material fact necessary to make the statements
contained herein or therein not misleading.
4.11 HOTEL LICENSE AGREEMENT. Attached hereto as Exhibit B is
a true and complete copy of the Hotel License Agreement. Seller has not
received any written notice from licensor that a default has occurred under
the Hotel License Agreement, and, to Seller's
<PAGE>
Knowledge, there are no events, which with the giving of notice or passage
of time, would cause a material default to occur thereunder.
Section 5. BUYER'S REPRESENTATIONS AND WARRANTIES.
Buyer hereby represents and warrants to Seller as follows:
5.1 ORGANIZATION AND STANDING OF BUYER. Buyer (i) is a
_____________ duly organized, validly existing and in good standing under
the laws of the State of _____________; (ii) has all requisite ____________
power and authority to own its properties and assets and to carry on its
business as now being conducted; and (iii) has full ___________ power and
authority to execute, deliver and perform this Agreement and to consummate
the transactions contemplated hereby, including the execution, delivery and
performance of each of the documents required to be delivered by Buyer to
Seller pursuant to this Agreement, and any and all other documents or
instruments necessary or desirable to the consummation hereof.
5.2 DUE EXECUTION AND PERFORMANCE. This Agreement has been,
and all documents, instruments and agreements required to be delivered by
Buyer pursuant to or in connection with this Agreement will be when
executed and delivered, duly authorized, executed and delivered by Buyer
and constitute the legal, valid and binding obligations of Buyer
enforceable in accordance with their respective terms, subject only to
general principles of equity, bankruptcy, insolvency or similar laws
affecting enforcement of creditors' rights generally as the same may be
applicable to any insolvency of Buyer or Seller. Neither the execution,
delivery or performance of this Agreement, or any document, instrument or
agreement required to be delivered by Buyer pursuant hereto, nor the
consummation of the transactions contemplated hereby, is prohibited by, or
requires Buyer to obtain the consent, approval or authorization of, or
notice to or filing or registration with, any Person.
5.3 ABSENCE OF BUYER CONFLICTS. The execution and delivery
by Buyer of this Agreement and the performance by Buyer of its obligations
hereunder do not and will not (i) conflict with any provision of the
__________________________ or other governing documents of Buyer; or (ii)
to the best of Buyer's knowledge conflict with, or result in a breach of or
a default or violation under, any contract, agreement or arrangement to
which Buyer is a party or any statute, decree, judgment, regulation, order
or rule of any governmental authority having jurisdiction over Buyer or the
Property.
5.4 ACCURACY OF BUYER REPRESENTATIONS. The statements and
information of Buyer set forth in this Agreement (a) constitute the only
statements and information concerning Buyer or the transaction which is the
subject of this Agreement made by or on behalf of Buyer, and (b) are true
and correct in every material respect; and no representation or warranty by
Buyer in this Agreement contains any untrue statement of a material fact,
or omits to state a material fact necessary to make the statements
contained herein or therein not misleading.
Section 6. COVENANTS OF SELLER.
Seller hereby warrants to and covenants with Buyer that:
<PAGE>
6.1 GOVERNMENTAL NOTICES. Prior to Closing, in the event
that Seller receives any notice from the County or any other governmental
or quasi-governmental authority having jurisdiction over the Real Property
of a violation or alleged violation of any statute, law, ordinance, rule,
permit, regulation or agreement governing the ownership, planning,
development, construction, occupancy, use or maintenance of any portion of
the Real Property, or of any permit, approval or authorization issued in
connection therewith or of any contemplated or pending investigation with
respect thereto, Seller promptly will deliver a copy of such notice to
Buyer.
6.2 OPERATION OF THE REAL PROPERTY. From and after the
Agreement Date, Seller will cause the Property to be operated substantially
in accordance with Seller's historical customary operating practices and
procedures, subject only to the following:
(a) During the Inspection Period, upon prior notice to,
and without consent of, Buyer, Seller may: (i) modify, amend, alter,
cancel or accept a surrender or forfeiture of any of the Lease(s); or (ii)
enter into any bona fide lease, offer to lease, expansion of Lease(s) or
renewal of space in the Improvements (a "Proposed Lease"). In the event
that Buyer does not terminate this Agreement pursuant to Section 7.2
hereof, then from and after the Inspection Termination Date except with the
prior written approval of Buyer Seller will not (A) enter into any written
amendments or modifications, or cancel or accept a surrender or forfeiture,
of any of the Leases or (B) enter into any Proposed Lease.
(b) Within four (4) Business Days after the date of
Buyer's receipt of notice of: (i) any written amendment or modification,
acceptance of a surrender, cancellation or forfeiture of any of the Leases
or (ii) any Proposed Lease, Buyer will deliver to Seller its written
approval, consent or rejection (with reasons therefor in reasonable detail)
of any such proposal, failing which Buyer conclusively will be deemed to
have consented, and such Proposed Lease conclusively will be deemed an
Approved Lease. Buyer acknowledges that the approval procedures set forth
in this Section 6.2(b) will be applicable only from and after the
Inspection Termination Date.
(c) Anything set forth in this Section 6.2 to the
contrary notwithstanding, Seller reserves the right at any time and from
time to time during the Inspection Period to terminate Leases for defaults
by tenants and to institute and prosecute available remedies for default
thereunder, except that Seller agrees before instituting any such
proceedings to notify Buyer; provided, however, that Seller will not be
required to obtain the consent of Buyer. In the event that Buyer does not
elect to terminate this Agreement pursuant to Section 7.2 hereof, then from
and after the Inspection Termination Date Seller agrees not to terminate
any Leases or institute any such proceedings without the prior written
consent of Buyer, which consent or approval will not be unreasonably
withheld, conditioned or delayed and conclusively will be deemed given in
the event that Buyer fails to deliver its written consent, approval or
rejection (with reasons therefor in reasonable detail) to Seller within
four (4) Business Days from Buyer's receipt of Seller's notice thereof.
<PAGE>
6.3 CONTRACTS. At Closing Seller will assign and transfer,
and Buyer will assume, all of its right, title and interest in and to the
Contracts to Buyer other than those in respect of which Buyer, prior to the
end of the Inspection Period, elects not to assume and Seller will
terminate the same on Closing.
6.4 MANAGEMENT AGREEMENT. At Closing Seller will terminate
the Management Agreement and Seller and Buyer shall cooperate fully with
one another to ensure an orderly transition of Property operations and
accounts.
6.5 TRANSFER OF LIQUOR LICENSES. The following alcoholic
beverage license associated to the operation of the Property; License No.
6004702 (the "Liquor License"). Buyer and Seller recognize that the
issuance and transfer of liquor licenses is statutorily regulated pursuant
to Florida Statutes Section 561.01 et. seq., and is subject to the approval
of the Florida Division of Alcoholic Beverage and Tobacco. In order to
comply with these statutory requirements, within five (5) business days
after request by Buyer, unless Buyer notifies Seller that Buyer is seeking
to obtain a new Liquor License, Seller will execute applications (or
procure the execution of applications) for transfer of the Liquor License
to Buyer. Buyer will be responsible for complying, at its sole cost and
expense, with all statutes and regulations applicable to the transfer of
the Liquor License, including without limitation, paying all licenses and
transfer fees, sales and use taxes, and all other fees and disbursements
incurred in connection with the transfer of the Liquor License. Seller
agrees to cooperate (or procure the relevant parties to cooperate) with
Buyer in obtaining transfer of the Liquor License, including executing all
requisite forms and permitting all requisite inspections.
6.6 INVENTORY OF GUEST PROPERTY.
(a) Representatives of Seller and Buyer will prepare an
inventory, as of the Adjustment Date, of all baggage parcels, laundry,
valet packages and other property of guests checked or left in the care of
Hotel by guests then or formerly in the Hotel (excluding, however, property
in the Hotel safe deposit boxes), as well as all items contained in the
Hotel lost and found. Buyer will be responsible from and after the
Adjustment Date for all property listed on said inventory, as well as all
lost and found items, and will have the right, when permitted by law, at
its own cost and expense, to sell or otherwise dispose of said property and
retain all proceeds thereof. Buyer agrees to indemnify and hold Seller
harmless from any and all claims, demands, costs, damages and liabilities,
including attorneys' fees in all trial and appellate proceedings, resulting
from the sale and disposition of said property of guests.
(b) On the Closing Date, Seller will cause delivery to
Buyer of all keys to the safe deposit boxes at the Hotel not at the time in
use by guests of the Hotel or other depositors, all receipts and agreements
relating to all safe deposit boxes, and a complete list of safe deposit
boxes in use at the Hotel, which list will contain the name and room number
of each depositor. Immediately prior to Closing, Seller will cause written
notice to be sent to each depositor requesting verification of the contents
of each depositor's safety deposit box within twenty-four (24) hours. Such
notice will be placed in each depositor's message box at the Hotel. All
such verifications will be under the supervision of representatives of
Seller in the presence of
<PAGE>
representatives of Buyer. Should the depositors wish to continue the use
of a safe deposit box, arrangement satisfactory to Buyer will be made for
such continued use with a representative selected by Buyer. Seller will be
responsible to Buyer for depositors who are using safe deposit boxes and do
not respond to the written notice for verification or who so respond, but
do not enter into a written agreement with Buyer. At such time as the
depositor verifies the contents of the depositor's safe deposit box and
neither removes the contents thereof or enters into a new agreement for its
continued use under the supervision of Buyer, Seller will be relieved of
any and all responsibility in connection with said box, and Buyer will
indemnify Seller and hold it harmless from and against any damages, costs,
losses or expenses, including reasonable attorneys' fees in all trial and
appellate proceedings, arising out of any claim with respect to such
contents from and after the date of such verification.
Section 7. INSPECTION PERIOD.
7.1 INSPECTION PERIOD. During the period (the "Inspection
Period") from and after the Agreement Date through 5:00 P.M., eastern time,
on the thirtieth (30th) day thereafter (the "Inspection Termination Date"),
Buyer will have the right to inspect and evaluate the physical and other
conditions of or with respect to the Property, including the right to make
such engineering and soil tests, analyses and other investigations as Buyer
deems necessary and appropriate (excluding environmental tests or
assessments except for the limited purpose of confirming the Dames & Moore
Report), and to investigate, evaluate and/or review any other facts,
circumstances or matters which Buyer deems relevant to its proposed
purchase of the Property; provided, that Buyer will not conduct any
physically invasive tests or procedures, either inside or outside of
buildings, without Seller's express written approval, and Seller will have
the right to (a) witness each such invasive test or procedure, and (b)
retain fifty percent (50%) of any sample material produced or taken in any
such test or procedure; and provided further, that Buyer may only
communicate with tenants of the Property in the presence of a designated
representative of Seller. Buyer will schedule and conduct any such
activities on the Property in a manner which does not unreasonably
interfere with the use thereof by Seller and/or any other party in
possession thereof at the time of said inspections. Seller agrees to
cooperate with Buyer, at no material expense to Seller, in making available
to the Buyer documents affecting or related to the Property. Buyer hereby
agrees (a) to indemnify, protect and hold harmless Seller from and against
any and all claims, demands, losses, costs, damages, expenses or
liabilities for death or injury to persons or for physical damage to
property, or for mechanics' or other liens, including reasonable attorneys'
fees, relating to or arising out of the Buyer's inspections of the
Property, and (b), if the Closing does not occur, to repair and restore the
Property to the condition existing prior to any test or inspection by or
for the Buyer (the foregoing (a) and (b), the "Inspection Indemnity").
7.2 TERMINATION BY BUYER. Buyer will have the right, which
may be exercised by delivering written notice to Seller any time prior to
the Inspection Termination Date, to terminate this Agreement for any reason
which Buyer deems appropriate. If Buyer elects to terminate this Agreement
pursuant to this Section 7.2, Buyer will return to Seller all documents or
materials provided to Buyer by Seller, together with a copy of any surveys,
environmental
<PAGE>
reports, zoning or platting documentation or similar documents prepared for
Buyer and related to the physical characteristics, condition and
development of the Property.
7.3 CONDITION OF PROPERTY. Buyer acknowledges that, during
the Inspection Period, Buyer will perform such studies, inspections,
examinations, investigations and evaluations of the Property as Buyer, in
Buyer's discretion, deems necessary or appropriate. Buyer represents to
Seller that Buyer is a sophisticated purchaser, owner, developer and
manager of real property, and that except for the limited representations
of Seller specifically set forth in Section 4, Buyer will rely solely upon
such studies, inspections, examinations, investigations and evaluations in
purchasing the Property. Without limiting the generality of the foregoing,
Buyer acknowledges that Seller makes and will make no representation or
warranty concerning environmental conditions heretofore, now or hereafter
existing on properties adjoining or proximate to the Land. Notwithstanding
anything in this Agreement, it is expressly understood and agreed that
Buyer is acquiring the Property "AS IS", "WHERE IS" and "WITH ALL FAULTS",
subject to the Settlement Agreement and Parking Arrangement, and that
Seller has not made and does not and will not make any representations or
warranties, express or implied, including any with respect to the quality,
physical condition, expenses, legal status, zoning, value, utility or
development or operating potential of the Property, the absence of any
Hazardous Substances on, in, under or near the Property except to the
extent of the limited representation set forth in Section 4.4 hereof, or
any other matter or thing affecting or relating to the Property or this
Agreement (including, without limitation, warranties of merchantability
and/or of fitness for a particular purpose) which might be pertinent in
considering whether to purchase the Property or to make and enter into this
Agreement; and Buyer hereby acknowledges that Seller has not made, and
Buyer has not relied upon, any such representations, and releases and
discharges Seller, its successors and assigns, of and from any liability to
Buyer, its successors and assigns, existing or arising under the statutes,
laws and regulations described in Section 1(p) hereof. Seller is not
liable or bound in any manner by any warranties, either expressed or
implied, guaranties, or any promises, statements, representations or
information pertaining to the Property or the value thereof made or
furnished by any broker or any real estate agent, broker, employee, servant
or other person representing or purporting to represent Seller.
Section 8. CONDITIONS PRECEDENT TO CLOSING.
8.1 BUYER CONDITIONS. The obligation of Buyer to close the
transaction which is the subject of this Agreement is subject to the
fulfillment as of the Closing Date of each of the following conditions,
unless any unfulfilled condition is waived in writing by Buyer:
(a) CORRECTNESS OF SELLER'S REPRESENTATIONS AND
WARRANTIES. Each of the representations and warranties of Seller set forth
in this Agreement will have been true and complete in all material respects
when made and will be true and correct in all material respects on the
Closing Date as if made at and as of the Closing Date.
(b) COMPLIANCE BY SELLER WITH AGREEMENT. Seller will
have performed and complied in all material respects with all agreements,
undertakings and obligations which are
<PAGE>
required to be performed by Seller or by which Seller is required to comply
at or prior to the Closing.
(c) HOTEL LICENSE. Seller will assign the Hotel
License Agreement to Buyer on terms satisfactory to Buyer as established by
Buyer with the licensor during the Inspection Period, or grant a new
license to Buyer on terms satisfactory to Buyer as established by Buyer
with the licensor during the Inspection Period, including in either case
the terms of the Capital Improvement Program or equivalent required by the
licensor as a condition to assignment or grant.
(d) DOCUMENT DELIVERIES. Seller will deliver at
Closing all documents and other items specified in Section 9.3 hereof.
8.2 SELLER CONDITIONS. The obligation of Seller to close
the transaction which is the subject of this Agreement is subject to the
fulfillment as of the Closing Date of each of the following conditions,
unless any unfulfilled condition is waived in writing by Seller:
(a) CORRECTNESS OF BUYER'S REPRESENTATIONS AND
WARRANTIES. Each of the representations and warranties of Buyer set forth
in this Agreement will have been true and complete in all material respects
when made and will be true and correct in all material respects on the
Closing Date as if made at and as of the Closing Date.
(b) COMPLIANCE BY BUYER WITH AGREEMENT. Buyer will
have performed and complied in all material respects with all agreements,
undertakings and obligations which are required to be performed by Buyer or
by which Buyer is required to comply at or prior to the Closing.
(c) DOCUMENT DELIVERIES. Buyer will deliver at Closing
all documents and other items specified in Section 9.4 hereof.
8.3 FAILURE OF CONDITION(S). If any condition(s) precedent
set forth in this Section 8 is not satisfied as of the date specified for
satisfaction, the party whose obligation to close is conditioned thereon
may either (a) waive satisfaction of such condition(s) and proceed to
Closing or (b) declare the failure of such condition to be a default by the
other party, and proceed in accordance with Section 11 hereof.
Section 9. CLOSING.
9.1 TIME AND PLACE. The Closing will take place commencing
at 10:00 A.M. at the office of Escrow Agent, Suite 4900, 200 South Biscayne
Boulevard, Miami, Florida 33131 on the tenth (10th) business day after the
Inspection Termination Date (the "Closing Date").
9.2 Closing Expenses. At or before Closing:
<PAGE>
(a) Seller will pay, or Buyer will receive a credit
against the Purchase Price in the amount of, the cost of recording any
corrective instruments and the cost of Florida documentary stamp tax due on
the deed of conveyance;
(b) Buyer will pay the cost of recording the conveyance
documents, the cost of the Survey and the premium for the Title Policy; and
(c) each party will pay any fees due to its attorneys
or other consultants.
9.3 Seller Documents and/or Deliveries. At Closing, in
addition to any other documents specifically required to be delivered or
acts required to be done pursuant to this Agreement, Seller will deliver to
Buyer, and Buyer will execute, if applicable, the following (all of which
will be in form reasonably acceptable to Buyer):
(a) a special warranty deed conveying title to the Real
Property subject to the Permitted Exceptions, in the form attached hereto
as Form F-9.3(a);
(b) certified copies of resolutions of a general
partner of each Seller authorizing the execution and delivery of this
Agreement and the consummation of the transactions contemplated hereby;
(c) a certificate of a general partner of each Seller
dated as of the Closing Date, which (i) certifies that (A) the
representations and warranties of Seller contained in this Agreement are
true on and as of the Closing Date in all material respects with the same
effect as if said representations and warranties were made on and as of the
Closing Date; (B) to the best of Seller's knowledge there are no unpaid
bills for labor, materials or services to the Land, and no labor, services
or materials have been undertaken or supplied to the Land, by or upon order
of Seller or its agents which could be the basis for any claims against the
Land; and (C) to the best of Seller's knowledge no other Person other than
Buyer has any right or claim to possession of the Land, and (ii) contains
such other certifications and undertakings as are customarily required to
induce a title insurer to issue a title commitment without the standard
"gap" exception;
(d) a certificate of a general partner of each Seller
dated as of the Closing Date, certifying as to the incumbency of the
officers of Seller executing the documents delivered pursuant to this
Agreement;
(e) an affidavit complying with the provisions of
Section 1445(b)(2) of the Internal Revenue Code of 1986, as amended;
(f) the Closing Commitment;
(g) an assignment and assumption agreement with respect
to the Permits and Contracts in the form attached hereto as Form F-9.3(g);
<PAGE>
(h) a bill of sale with respect to the Personalty, in
the form attached hereto as Form F-9.3(h);
(i) tenant estoppel statements with respect to (A) each
tenant leasing greater than 4,000 square feet, (B) 80% of the gross
leaseable area leased to tenants leasing 4,000 square feet or less, in the
form specified in the tenant's lease or, if none, in the form attached
hereto as Form F-9.3(i). Seller does not warrant or guarantee any of the
information contained in tenant estoppel certificates;
(j) an assignment and assumption of the Leases in the
form attached hereto as Form F-9.3(j);
(k) an assignment and assumption of the Hotel License
Agreement, in the form attached hereto as Form F-9.3(k), provided, that
Buyer may elect not to assume the Hotel License Agreement if, but only if,
Buyer pays any fees and termination costs due upon termination thereof;
(l) an assignment and assumption of Seller's interest,
if any, under the Declaration, in the form attached hereto as Form
F-9.3(l);
(m) an estoppel certificate in favor of Buyer with
regard to the Declaration in the form attached hereto as Form F-9.3(m);
(n) the originals (or copies if originals are
unavailable) of existing Leases and all tenant files, Contracts and files
and records pertaining to the Property as are in Seller's possession or in
the possession of the current property manager for the Property; provided,
that Buyer will make all originals available to Seller after Closing to the
extent required by Seller in connection with accounting, taxation,
litigation or other proceedings involving Seller's prior ownership of the
Property;
(o) notices to the tenants at the Property in such form
as Seller and Buyer shall agree; and
(p) originals (or copies if originals are unavailable)
of all governmental licenses, permits and approvals relating to the
occupancy or use of the Property in the possession of Seller or Seller's
current property manager.
9.4 BUYER DOCUMENTS AND/OR DELIVERIES. At Closing, in
addition to any documents or other items specifically required to be
delivered or required to be done pursuant to this Agreement, Buyer will
deliver or cause to be delivered to Seller and Seller will execute if
applicable:
(a) the Purchase Price (including the Deposit), by bank
wire transfer of immediately available funds;
<PAGE>
(b) certified copies of resolutions of the
________________________ of Buyer authorizing the execution and delivery of
this Agreement and the consummation of the transactions contemplated
hereby, or an opinion of counsel reasonably acceptable to Seller evidencing
the same; and
(c) a certificate of the __________________________ of
Buyer dated as of the Closing Date, certifying that (i) the representations
and warranties of Buyer contained in this Agreement are true on and as of
the Closing Date in all material respects with the same effect as if said
representations and warranties were made on and as of the Closing Date; and
(ii) Buyer has substantially performed and complied with all agreements and
conditions required by this Agreement to be performed or with which Buyer
is required to have complied prior to or on the Closing Date.
9.5 PRORATIONS. It is the overall intent of the parties that
income and expenses of the Property shall be prorated as of the Adjustment
Date with the intent that Seller will have the benefit of all accrued
income and be responsible for all costs, liabilities, capital, operating
and other expenses in relation to the Property through Adjustment Date, and
Buyer will have the benefit of all income accrued and be responsible for
all costs, liabilities, capital operating and other expenses in relation to
the Property from and after the Adjustment Date. Except as otherwise
specifically set forth in this Agreement, ad valorem property taxes and
other revenues and expenses of, and impounds, prepayments or deposits
affecting or related to, the Property (including rents and other sums due
under Leases as hereinafter set forth and all Hotel revenues) will be
prorated between Seller and Buyer as of the Adjustment Date, and any
security deposits held pursuant to Leases will be credited to Buyer. Ad
valorem property taxes, with maximum allowable discount for early payment,
will be prorated on the basis of actual taxes for the year of Closing, if
known, or otherwise on the basis of ad valorem property taxes for the
immediately preceding year. Any Closing proration of taxes will be
reprorated at the request of either party when the actual tax bill for the
year of Closing is available. Special assessment liens certified, or for
which the work has been substantially completed, as of the Agreement Date
will be paid by Seller, and any other pending assessments will be assumed
by Buyer.
(a) RENT.
(I) CURRENT RENT. Rents that are payable for the
month in which Closing occurs, and rents that are actually paid for the
period prior thereto, will be prorated. If at the time of Closing there
are past due rents owed by tenants for the month immediately prior to the
month in which the Closing occurs, Buyer agrees that the first moneys
received by Buyer from such tenant or tenants will be received on account
of or in payment of such past due rents and Seller's share will be remitted
by Buyer to Seller forthwith.
(ii) PAST DUE RENTS. With respect to any past due
rents for periods of more than one (1) month (not including the month in
which Closing occurs), Seller may elect to retain the right to collect, sue
for and recover such rents, or assign or transfer such past due rents to
Buyer in consideration of Buyer's agreement to use its best efforts to
collect such
<PAGE>
amounts on behalf of Seller and to pay such past due rents to Seller as and
when collected, less reasonable collection charges not in excess of local
prevailing rates.
(iii) TENANT IMPROVEMENTS AND ALLOWANCES. Buyer
will be responsible for all real estate commissions, tenant improvement
allowances and tenant inducements (A) payable with respect to all Approved
Leases and (B) due for any leases made by Buyer after the Closing Date
which were procured prior to the Closing Date. Buyer will be responsible
for, and will receive no credit toward the Purchase Price with respect to,
any rent abatements or other rent concessions which are applicable to that
portion of the term of any lease or Approved Lease which follows the
Adjustment Date.
(iv) COMMON AREA MAINTENANCE. If any common area
maintenance charges ("CAM Charges") and/or other payments due from tenants
for any period up to the Adjustment Date (A) have been billed as of the
Adjustment Date based upon an estimated budget and are subject to
recalculation and adjustment after the Adjustment Date based upon actual
common area maintenance expenses, (B) have not been billed, and/or (C) if
billed have not been collected by Seller as of the Closing Date, then if
applicable Buyer promptly will adjust CAM Charges to actual expenses, and
upon receiving any CAM Charges and/or other payments (including such
adjusted payments) from tenants will pay over to Seller the proportion of
such CAM Charges and/or other payments from tenants which is due Seller for
the period up to the Adjustment Date. Buyer will exercise reasonable
diligence in the collection of any such amounts and will pay to Seller,
within five (5) days after receipt, the amount to which Seller is entitled
hereunder. Notwithstanding the foregoing, CAM Charges and/or other
payments due from tenants, to the extent ascertainable and payable, will be
credited and paid to Seller as if the same were rents subject to Section
9.5(a)(i) above. The provisions of this Section 9.5(a) will survive
Closing and delivery of the deed of conveyance.
(b) ACCRUED HOTEL EMPLOYEE BENEFITS. Buyer will
assume at Closing the Accrued Hotel Employee Benefits due as of the Closing
Date to each Hotel employee who has then been hired by Buyer to continue
his or her employment at the Hotel, and Buyer will reimburse Seller at
Closing for the Accrued Hotel Employee Benefits due as of the Closing Date
to each Hotel employee whom Buyer has not then hired to continue his or her
employment at the Hotel.
(c) POST-CLOSING ADJUSTMENTS. Any matters specified in
this Section that cannot reasonably be determined and apportioned between
Seller and Buyer on the Closing Date will be identified by Buyer and Seller
in writing at Closing, and will be subject to final settlement at such time
as such matter is finally determined (but in no event later than one
hundred eighty (180) days after the Closing Date). Such apportionments
will be effective as of the Adjustment Date. The provisions of this
Section 9.5(b) will survive Closing and delivery of the deed of conveyance.
9.6 EXECUTION AND DELIVERY OF CLOSING STATEMENT. At Closing,
in addition to any other documents required to be executed and delivered in
counterparts by both parties, Seller
<PAGE>
and Buyer will execute and deliver to each other closing statements
accounting for sums adjusted or disbursed at Closing.
Section 10. BROKERS. Each party represents and warrants to the
other that it has not consulted, dealt or negotiated with any person other
than Richard Ellis, LLC, (the "Broker") to whom a commission is or could be
due in connection with the sale of the Property by Seller to Buyer, or any
other matter associated with this Agreement. Seller has made a separate
agreement with Broker and will pay all sums, if any, due to Broker in
connection with this Agreement. Each party hereby agrees to indemnify and
hold harmless the other from any losses, damages, costs, liabilities or
expenses, including reasonable costs and attorneys' and paralegals' fees
incurred in trial, appellate or postjudgment proceedings, related to or
arising out of any breach of the representations, warranties and agreements
set forth in this Section 10. Anything to the contrary notwithstanding, the
representations, warranties and agreements of this Section 10 will survive
Closing of the transactions which are the subject of this Agreement and the
delivery of the deed of conveyance, or any earlier termination of this
Agreement.
Section 11. DEFAULT.
11.1 BUYER'S DEFAULT. If, at or prior to Closing, Buyer fails
or refuses to perform any of Buyer's obligations under this Agreement,
Seller's sole remedy will be to terminate this Agreement and receive a sum
equal to the Deposits as agreed and liquidated damages, it being agreed
that in such event Seller's actual damages would be incapable of precise
ascertainment; and thereafter this Agreement will be null and void and the
parties hereto will have no further rights or obligations hereunder except
with respect to the Inspection Indemnity or other provisions of this
Agreement that expressly survive termination.
11.2 SELLER'S DEFAULT. If, at or prior to Closing, Seller
fails or refuses to perform any of Seller's obligations under this
Agreement, Buyer may terminate this Agreement, in which event the Deposits
will be returned to Buyer and this Agreement will be null and void and the
parties hereto will have no further rights or obligations hereunder except
with respect to the Inspection Indemnity; or Buyer, at its option, may
bring an action for specific performance of the terms of this Agreement.
If, subsequent to Closing, Seller fails or refuses to perform any of
Seller's obligations to be performed under this Agreement subsequent to
Closing, Buyer will be entitled to seek its direct damages, but, in no
event, will Buyer be entitled to seek or receive, and Buyer hereby waives
any right to seek or receive, indirect, consequential or punitive damages.
Section 12. RISK OF LOSS.
12.1 CASUALTY. Seller will bear all risk of loss occurring to
or upon any material portion of the Real Property prior to conveyance
thereof by Seller to Buyer pursuant to the terms of this Agreement. A
portion of the Real Property will be deemed material if its replacement
cost exceeds Three Hundred Thousand Dollars ($300,000.00). In the event
that any material portion of the Real Property (excluding vegetation or
structures not for human occupancy) is damaged or destroyed prior to
Closing, Buyer may, at its option, terminate this Agreement (except for the
Inspection Indemnity) by written notice to Seller prior to Closing and
within thirty (30) days after Buyer receives written notice of such damage
or destruction, whereupon the
<PAGE>
Deposits will be returned to Buyer and thereafter the parties will have no
further rights or obligations hereunder except with respect to the
Inspection Indemnity. If Buyer closes notwithstanding an unrepaired or
unrestored loss to the Real Property, Seller will deliver and/or assign to
Buyer any insurance proceeds with respect to such damage or destruction,
and the Purchase Price will not be reduced.
12.2 CONDEMNATION. In the event that any material portion of
the Real Property is taken by eminent domain or condemnation proceeding
prior to sale and conveyance thereof by Seller to Buyer and such taking
materially and adversely affects the use or utility of the remainder of
Real Property, Buyer may within thirty (30) days after Buyer receives
written notice of such taking either (a) proceed to close notwithstanding
the eminent domain or condemnation proceeding, in which event Seller will
assign to Buyer its entire right, title and interest in and to any award,
and the Purchase Price will not be reduced or (b) terminate this Agreement
by delivering written notice of termination to Seller, whereupon the
Deposits will be returned to Buyer and thereafter this Agreement will be
null and void and the parties will have no further rights or obligations
hereunder except with respect to the Inspection Indemnity. A portion of
the Real Property will be deemed material if it includes any rentable
portion of the Real Property, fifteen (15) or more parking spaces (or any
lesser number of parking spaces that results in a nonconforming use on the
Property) and/or renders unusable any guest rooms or more than 1,000 square
feet of the hotel subject to the Hotel License Agreement. Seller agrees
promptly to notify Buyer of any eminent domain or condemnation proceeding.
12.3 MUTUAL INDEMNITY. Seller (in such capacity, an
"Indemnitor") agrees to indemnify and hold Buyer (in such capacity, an
"Indemnitee") harmless from and against any loss, cost, liability, damage
or expense including, without limitation, reasonable attorneys' fees and
costs in all trial and appellate proceedings ("Losses") incurred in
connection with any legal claim by a third party (a "Claim") originating
prior to the Closing Date and arising out of the ownership and/or operation
of the Property, including, without limitation, any claims for unpaid sales
tax or other use or occupancy taxes and any employment related claims; and
Buyer (in such capacity, an "Indemnitor") agrees to indemnify and hold
Seller (in such capacity, an "Indemnitee") harmless from and against any
Losses incurred in connection with a Claim originating from and after the
Closing Date and arising out of the ownership and/or operation of the
Property, including, without limitation, any claims for unpaid sales tax or
other use or occupancy taxes and any employment related claims.
Within not more than ten (10) days after the date upon which an
Indemnitee receives a complaint filed against it or a formal written demand
of it, the Indemnitee will deliver written notice (a "Claim Notice") to the
Indemnitor, describing in reasonable detail the facts giving rise to such
Claim and stating that the Indemnitee intends to seek indemnification for
such Claim from the Indemnitee pursuant to this Agreement, The Indemnitor
will have the right to settle all Claims upon terms and conditions
acceptable to the Indemnitor and reasonably approved in writing by the
Indemnitee (but in no event will the Indemnitee be required to approve any
such settlement that results in no obligation, liability, cost or expense
to the Indemnitee).
<PAGE>
Upon timely receipt of a Claim Notice from an Indemnitee with
respect to any Claim, the Indemnitor may assume the defense thereof with
counsel of the Indemnitor's choice reasonably satisfactory to the
Indemnitee, and will not be required to engage more than one law firm to
defend the Claim in question, provided that such law firm is reasonably
approved in writing by the Indemnitee, and without regard to whether the
law firm also represents Indemnitor in defending such Claim. If a Claim is
being defended by a third-party insurer, the Indemnitee will not be
permitted to reject counsel used by the insurer unless such rejection has
no material adverse effect upon the coverage of the Indemnitor under the
insurance policy in question. The Indemnitee will cooperate in all
reasonable respects in such defense. Subject to the foregoing duty of
cooperation, the Indemnitee will have the right to employ separate counsel
in any action or Claim and to participate in the defense thereof, provided
that the fees and expenses of counsel employed by the Indemnitee will be at
the Indemnitee's sole cost and expense, except as otherwise herein
provided. A decision by an Indemnitor to assume the defense of a Claim
without a specific written reservation of rights to contest such liability
for a Claim under this Agreement which specifically states the reason
therefor, will be conclusive evidence of the Indemnitor's obligation to
indemnify the Indemnitee for all indemnified losses arising out of such
Claim.
If an Indemnitor does not notify the Indemnitee in writing
within ten (10) days after receipt of a Claim notice that the Indemnitor
elects to undertake the defense thereof, the Indemnitee will have the
right, at the expense of the Indemnitor, to defend the Claim with counsel
of the Indemnitee's choice; provided, however, that prior to the expiration
of ten (10) days after its delivery of the Claim Notice, the Indemnitee
will be permitted in the interim to take such action, including, without
limitation, the filing of responsive pleadings, as it deems reasonably
necessary in order to defend, preserve and protect its interests in respect
of such Claim. Except as otherwise provided herein, if a Claim notice is
not given by an Indemnitee prior to the Indemnitee's payment or settlement
of a Claim, the Indemnitee will not be entitled to be indemnified under
this Addendum to the extent that the Indemnitor can establish that the
Indemnitor has been prejudiced by such payment or settlement.
The parties hereto acknowledge that the law firm defending a
Claim may have an inherent conflict of interest where the Indemnitor and
Indemnitee have not agreed upon the Indemnitee's right to indemnification.
Therefore, notwithstanding any provision herein to the Contrary, unless an
Indemnitor has acknowledged in writing its obligation to indemnify the
Indemnitee, the Indemnitor will, and will cause the law firm defending the
Claim to, at all times keep the Indemnitee fully advised of the status of
settlement negotiations and/or defense of the Claim, and promptly provide
to the Indemnitee copies of all documents and correspondence related to the
Claim. If, at any time, the Indemnitee believes in good faith that the law
firm defending the Claim is not fairly representing the Indemnitee's
position with respect to such Claim and/or is prejudicing the Indemnitee's
rights with respect to the Claim for indemnification, the Indemnitee may
retain separate counsel of the Indemnitee's choice, and such separate
counsel will be entitled fully to participate in the defense of such Claim
on behalf of the Indemnitee. Further, if an Indemnitee delivers proof that
the Indemnitee was not fairly represented, the Indemnitor will pay the
costs and expenses incurred by the Indemnitee in respect of such separate
counsel.
<PAGE>
An Indemnitee will cooperate fully with the Indemnitor as to
all Claims, will make available to the Indemnitor as reasonably requested
all information, records and documents relating to all Claims and will
preserve all such information, records and documents until termination of
any Claim. An Indemnitee will also make available to the Indemnitor, as
reasonably requested, its personnel (including technical), agents and other
representatives who are responsible for preparing or maintaining
information, records or other documents, or who may have particular
knowledge with respect to any Claim. An Indemnitee will also cooperate
with the Indemnitor in attempting to minimize the Losses subject to
indemnification by considering in good faith any request to pursue, and/or
assign to Indemnitor, any rights of contribution or to reimbursement,
whether contractual or otherwise.
Section 13. MISCELLANEOUS.
13.1 LITIGATION. In the event of any litigation between
Seller and Buyer concerning the terms of this Agreement, the prevailing
party will be entitled to reimbursement of its costs and expenses,
including reasonable attorneys' and paralegals' fees, incurred in trial,
appellate and postjudgment proceedings. The provisions of this Section
13.1 will survive Closing, expiration or termination of this Agreement.
13.2 ESCROW OBLIGATIONS OF ESCROW AGENT. Seller and Buyer
acknowledge that Escrow Agent undertakes hereunder to perform only such
duties as are expressly set forth herein and no implied duties or
obligations will be inferred against Escrow Agent. The Purchase Price,
including the Deposits, will be held and disbursed by Escrow Agent as
follows:
(a) Escrow Agent may (i) act in reliance upon any writing or
instrument or signature which it, in good faith, believes to be genuine,
(ii) assume the validity and accuracy of any statement or assertion
contained in such a writing or instrument, and (iii) assume that any person
purporting to give any writing, notice, advice or instruction in connection
with the provisions hereof has been duly authorized to do so.
(b) Seller and Buyer agree, jointly and severally, to
indemnify and hold harmless Escrow Agent from and against any and all
claims, liabilities, losses, actions, suits or proceedings at law or in
equity, or any other expenses, fees or charges of any character or nature
whatsoever, which Escrow Agent may incur or with which it may be threatened
solely by reason of its acting as escrow agent hereunder, except to the
extent resulting from Escrow Agent's gross negligence, fraud or intentional
misconduct; and in connection therewith, to indemnify Escrow Agent against
any and all expenses, including reasonable attorneys' fees and the cost of
defending any action, suit or proceedings or resisting any claim
(including, without limitation, fees for services rendered by Escrow
Agent's constituent attorneys and paralegals); provided, however, that if
such expenses are incurred by Escrow Agent in connection with litigation
between Seller and Buyer, the responsibility for indemnifying Escrow Agent
for such expenses will belong solely to the non-prevailing party.
(c) Escrow Agent will not make any disbursement of the
Purchase Price or Deposits (except at Closing) without giving written
notice to the party which will not receive the disbursement at least five
(5) business days in advance of the disbursement. The failure of the
<PAGE>
party not receiving the disbursement to object to the disbursement by
written notice to the other party and to the Escrow Agent will constitute
binding acquiescence of such party to the disbursement. If there is any
disagreement about the interpretation of this Agreement, or about the
rights and obligations, or the propriety, of any action contemplated by
Escrow Agent hereunder, Escrow Agent will file an action in interpleader to
resolve such disagreement. Escrow Agent will be indemnified (by Seller or
Buyer, whichever is the non-prevailing party) as set forth in the foregoing
subsection (b) in connection with such interpleader action, and will be
fully protected in suspending all or a part of its activities under this
Agreement until a final judgment in the interpleader action is received.
(d) Escrow Agent may consult with counsel of its own choice
and will have full and complete authorization and protection for any action
taken or suffered by it hereunder in good faith and in accordance with the
opinion of such counsel. Escrow Agent otherwise will not be liable for any
mistakes of fact or error of judgment, or for any acts or omissions of any
kind unless caused by its willful misconduct or gross negligence. Buyer
acknowledges that Escrow Agent is also acting as counsel to Seller, and
agrees that Escrow Agent's duties pursuant to this Section 13.2 will not be
deemed a conflict of interest affecting such representation of Seller.
(e) Escrow Agent may resign upon 15 days' written notice to
Seller and Buyer, and if a successor title agent is not appointed within
such 15-day period, Escrow Agent may petition a court of competent
jurisdiction to name a successor.
13.3 NOTICES. Notices required or permitted to be given
pursuant to the terms of this Agreement will be delivered in person or by
facsimile transmission, (provided the original notice is delivered in
person or by mail or delivery service as set forth herein) or sent by
certified mail, return receipt requested, postage prepaid, by recognized
contract carrier providing signed receipt for delivery, and will be deemed
delivered upon receipt or refusal of delivery. Notices will be delivered
at the following addresses, subject to the right of any party to change the
address at which it is to receive notice by written notice to the other
party:
To Seller:
Arvida/JMB Partners
900 North Michigan Avenue
Chicago, Illinois 60611-1575
Attn: Stephen A. Lovelette
Telephone: (312) 440-4800
Facsimile: (312) 915-2310
Copies to:
John Baric, Esq.
Arvida Company
7900 Glades Road
<PAGE>
Boca Raton, Florida 33429
Telephone: (561) 479-1100
Facsimile: (561) 479-1227
and
H. William Walker, Jr., Esq.
White & Case
First Union Financial Center
200 South Biscayne Boulevard
Miami, Florida 33131-2352
Telephone: (305) 371-2700
Facsimile: (305) 358-5744
To Buyer:
____________________
____________________
Copy to:
____________________
____________________
To Escrow Agent:
White & Case
First Union Financial Center
200 South Biscayne Boulevard
Miami, Florida 33131-2352
Telephone: (305) 371-2700
Facsimile: (305) 358-5744
13.4 INTEGRATION AND SEVERABILITY. This Agreement and the
attachments hereto set forth the entire understanding of Buyer and Seller
with the respect to the matters which are the subject of this Agreement,
superseding and/or incorporating all prior or contemporaneous oral or
written agreements, and may be changed, modified, or amended only by an
instrument in writing executed by the party against whom the enforcement of
any such change, modification or amendment is sought.
13.5 SUCCESSORS AND ASSIGNS. This Agreement will inure to the
benefit of and be binding upon, and is intended solely for the benefit of,
the parties hereto, and their respective heirs, personal representatives,
successors, and assigns; and no third party will have any rights,
privileges or other beneficial interests herein or hereunder. Buyer will
be entitled to assign this
<PAGE>
Agreement to any affiliate of Buyer, provided that such assignment will not
relieve Buyer of liability to Seller hereunder.
13.6 CONSTRUCTION. Headings and similar structural elements
set forth in this Agreement are intended for ease of reference only, and
are not intended, and will not be construed, to reflect the intention of
the parties or to affect the substance of this Agreement. This Agreement
has been negotiated at arm's length between Seller and Buyer, each
represented by legal counsel of its choice and having an ample opportunity
to negotiate the form and substance hereof, and therefore in construing the
provisions of this Agreement the parties will be deemed to have had equal
roles in drafting.
13.7 GOVERNING LAW. This Agreement is governed by and will be
construed in accordance with the laws of the State of Florida, and in the
event of any litigation concerning the terms of this Agreement, proper
venue thereof will be in the County.
13.8 INVALID PROVISIONS. In the event any term or provision
of this Agreement is held illegal, unenforceable or inoperative as a matter
of law, the remaining terms and provisions will not be affected thereby,
but will be valid and remain in force and effect, provided that the
inoperative provisions are not essential to the interpretation or
performance of this Agreement in accordance with the clear intent of the
parties.
13.9 COUNTERPARTS. This Agreement may be executed in two or
more counterparts, each of which will be deemed an original, but all of
which will constitute the same instrument; and delivery of signatures
transmitted by facsimile will be sufficient to bind the signing party.
13.10 NO WAIVER OF DEFAULT. No waiver by a party of any breach
of this Agreement or of any warranty or representation hereunder by the
other party will be deemed to be a waiver of any other breach by such other
party (whether preceding or succeeding and whether or not of the same or
similar nature), and no acceptance of payment or performance by a party
after any breach by the other party will be deemed to be a waiver of any
breach of this Agreement or of any representation or warranty hereunder by
such other party, whether or not the first party knows of such breach at
the time it accepts such payment or performance. No failure or delay by a
party to exercise any right it may have by reason of the default of the
other party will operate as a waiver of default or modification of this
Agreement or will prevent the exercise of any right by the first party
while the other party continues so to be in default.
13.11 CONFIDENTIALITY. Buyer will keep in strict confidence
all information obtained with respect to the Property pursuant to or in
connection with this Agreement or any confidentiality agreement executed by
Buyer related to the Property (including all terms and provisions of this
Agreement, including the Purchase Price, all information obtained with
respect to the tenants and other occupants of the Property, and all
information obtained in connection with any inspections) until such time as
the Closing is completed. Buyer agrees to instruct its agents, employees,
advisers and consultants to comply with the provisions of this Section
13.11 and any confidentiality agreement executed in connection with the
Property. Notwithstanding the foregoing, Buyer may disclose information
obtained with respect to the Property prior to the
<PAGE>
Closing to its directors, bankers, advisors, attorneys, accountants and
agents so long as such parties agree in writing for Seller's benefit to
keep the information confidential until such time as the Closing is
completed. In addition, Buyer may disclose information prior to the
Closing as may be required by law. If the purchase and sale of the
Property contemplated hereby is not completed for any reason, Buyer will,
upon request, promptly return to Seller all instruments and materials or
copies of instruments and materials delivered pursuant hereto and obtained
by Buyer. The provisions of this Section 13.11 will survive any
termination of this Agreement.
13.12 RECOURSE LIMITED; SURVIVAL. (a) Notwithstanding anything
to the contrary in this Agreement, neither any present or future
constituent partner in Seller nor any shareholder, officer, director,
employee or agent of any corporation that is a constituent partner in
Seller will be personally liable, directly or indirectly, under or in
connection with this Agreement, or any document, instrument or certificate
securing or otherwise executed in connection with this Agreement, or any
amendments or modifications to any of the foregoing made at any time or
times, heretofore or hereafter, or in respect of any matter, condition,
injury or loss related to this Agreement or the Property; and Buyer and
each of its successors and assignees waives any such personal liability.
For purposes of this Agreement, and any such instruments and certificates,
and any such amendments or modifications thereto, neither the negative
capital account of any constituent partner in Seller, nor any obligation of
any constituent partner in Seller to restore a negative capital account or
to contribute capital to Seller or to any other constituent partner in
Seller, will at any time be deemed to be the property or any asset of
Seller or any such other constituent partner (and neither Buyer nor any of
its successors or assignees will have any right to collect enforce or
proceed against or with respect to any such negative capital account or a
Constituent Partner's obligation to restore or contribute). As used in
this Section 13.12, a "constituent partner" in Seller means any direct
partner in Seller and any person that is a partner in any partnership that,
directly or indirectly through one of more other partnerships, is a partner
in Seller. Notwithstanding anything herein to the contrary, in no event
shall this Section 13.12 be deemed to be a limitation of Seller's liability
under this Agreement.
(b) The representations, warranties and covenants set forth
in this Agreement (excluding the indemnity for which provision is made in
Section 6.3 and the mutual indemnity for which provision is made in Section
12.3 hereof) will remain in effect for six (6) months after the Closing
Date; and all claims made by Buyer against Seller after Closing related to
or arising out of breach of a representation, warranty or covenant
(excluding the mutual indemnity for which provision is made in Section 12.3
hereof) pursuant to this Agreement must be delivered to Seller in writing
not later than the sixth (6th) month anniversary of the Closing Date, and
Buyer's recovery(ies) with respect thereto will in no event exceed
$750,000.00 in the aggregate. Seller's representations, warranties and
covenants set forth in this Agreement will be inapplicable and ineffective
to the extent that Buyer has knowledge of facts or information contrary to
such representations, warrants or covenants as of the Closing Date.
13.13 BUSINESS DAY. If any date herein set forth for the
performance of any obligations by Seller or for the delivery of any
instrument or notice as herein provided should be on a day other than a
Business Day, the compliance with such obligations or delivery will be
deemed acceptable on the next occurring Business Day.
<PAGE>
13.14 RECORDATION. Buyer agrees that disclosure of this
Agreement would be materially detrimental to Seller and hamper its future
negotiations with third parties and, therefore it is agreed that no
disclosure will be made by Buyer without the written approval of Seller and
that this Agreement will not be recorded in any public records, and that
such disclosure or recording would constitute a default by Buyer subject to
Section 11.1 hereof.
13.15 JURY WAIVER. IN ANY CIVIL ACTION, COUNTERCLAIM OR
PROCEEDING, WHETHER AT LAW OR IN EQUITY, WHICH ARISES OUT OF, CONCERNS, OR
RELATES TO THIS AGREEMENT, AND ANY AND ALL TRANSACTIONS CONTEMPLATED
HEREUNDER, THE PERFORMANCE HEREOF, OR THE RELATIONSHIP CREATED HEREBY,
WHETHER SOUNDING IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, TRIAL
WILL BE TO A COURT OF COMPETENT JURISDICTION AND NOT TO A JURY. EACH PARTY
HEREBY IRREVOCABLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY. ANY
PARTY MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS AGREEMENT WITH ANY
COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE PARTIES HERETO OF THE
WAIVER OF THEIR RIGHT TO TRIAL BY JURY. NEITHER PARTY HAS MADE OR RELIED
UPON ANY ORAL REPRESENTATIONS TO OR BY ANY OTHER PARTY REGARDING THE
ENFORCEABILITY OF THIS PROVISION. EACH PARTY HAS READ AND UNDERSTANDS THE
EFFECT OF THIS JURY WAIVER PROVISION.
13.16 ANNOUNCEMENTS. Seller and Buyer will consult with each
other with regard to all press releases and other announcements issued at
or prior to the Closing concerning this Agreement or the transactions
contemplated hereby, and except as may be required by applicable laws or
the applicable rules and regulations or any governmental agency or stock
exchange, neither Seller nor Buyer will issue any such press release or
other such publicity prior to the Closing Date without the prior written
consent of the other party.
13.17 RADON GAS. Radon is a naturally occurring radioactive
gas that, when it has accumulated in a building in sufficient quantities,
may present health risks to persons who are exposed to it over time.
Levels of Radon that exceed federal and state guidelines have been found in
buildings in Florida. Additional information regarding Radon and Radon
testing may be obtained from your county public health unit.
13.18 CO-OBLIGOR. Arvida is not the owner of the Property but
is the parent company of Retail, Office and Hotel and will derive a
substantial benefit from the sale of the Property. Accordingly, Arvida is
executing this Agreement for the purpose of becoming obligated with such
entities to perform Seller's obligations hereunder.
<PAGE>
IN WITNESS WHEREOF, the parties have caused this Agreement to
be executed on the date(s) hereinafter set forth.
WITNESSED BY: CENTER RETAIL PARTNERS, a Florida general
partnership:
- --------------------
By: Arvida/JMB Managers, Inc., a Florida
corporation, its General Partner
Name:
--------------
By:
-------------------------------
- -------------------- Name:
-------------------------------
Name: Title:
--------------- -------------------------------
WITNESSED BY: CENTER HOTEL LIMITED PARTNERSHIP, a
Delaware limited partnership:
- ---------------------
By: JMB/PCH Corporation, an Illinois
Name: corporation, its General Partner
--------------
By:
- -------------------- -------------------------
Name:
Name: -------------------------
-------------- Title:
-------------------------
Date:
-------------------------
WITNESSED BY: CENTER OFFICE PARTNERS, a Florida general
partnership:
- ---------------------
By: Arvida/JMB Managers, Inc., a Delaware
Name: corporation, its General Partner
--------------
By:
- -------------------- -------------------------
Name:
Name: -------------------------
-------------- Title:
-------------------------
Date:
-------------------------
<PAGE>
WITNESSED BY: ARVIDA/JMB PARTNERS, L.P., a Delaware
limited partnership:
- ---------------------
By: Arvida/JMB Managers, Inc., a Delaware
Name: corporation
--------------
By:
- -------------------- -------------------------
Name:
Name: -------------------------
-------------- Title:
-------------------------
Date:
-------------------------
WITNESSED BY: BUYER:
- ---------------------
Name:
--------------
By:
- -------------------- -------------------------
Name:
Name: -------------------------
-------------- Title:
-------------------------
Date:
-------------------------
<PAGE>
Escrow Agent hereby agrees to hold and disburse the Deposits in
accordance with and subject to the provisions of the foregoing Agreement
for Sale and Purchase of Real Property.
WHITE & CASE:
By:
------------------------
Name:
------------------------
Title: Partner
Date: ______________, 1997
<PAGE>
SCHEDULE S-1(l)
CONTRACTS
---------
<PAGE>
SCHEDULE S-1(ii)
PERMITS
-------
<PAGE>
SCHEDULE S-4.2
REQUIRED CONSENTS
-----------------
1. The Hotel License Agreement.
<PAGE>
SCHEDULE S-4.4
HAZARDOUS SUBSTANCES
--------------------
NONE.
<PAGE>
SCHEDULE S-4.5
LEASES
------
<PAGE>
SCHEDULE S-4.6
LITIGATION
----------
<PAGE>
SCHEDULE S-4.8
ACCRUED HOTEL EMPLOYEE BENEFITS
-------------------------------
<PAGE>
FORM F-9.3(a)
FOLIO NUMBER: ____________
SPECIAL WARRANTY DEED
---------------------
THIS SPECIAL WARRANTY DEED is made this ______ day of ____________,
1997, by CENTER RETAIL PARTNERS, a Florida general partnership ("Retail"),
CENTER OFFICE PARTNERS, a Florida general partnership ("Office") and CENTER
HOTEL LIMITED PARTNERSHIP, a Delaware limited partnership ("Hotel", and
collectively with Retail and Office, the "Grantor"), whose address is
___________________ ___________________ to _______________________________,
a ___________________________ (the "Grantee"), whose address is
_____________________________.
W I T N E S S E T H:
-------------------
THAT GRANTOR, for and in consideration of the sum of Ten
Dollars ($10.00) and other good and valuable considerations, the receipt
and sufficiency of which are hereby acknowledged, does hereby grant,
bargain, sell, transfer and deliver to Grantee, its successors and assigns
forever, the real property (the "Property") described in Exhibit A attached
hereto.
TOGETHER, with all the tenements, hereditaments and
appurtenances thereto belonging or in anyway appertaining.
TO HAVE AND TO HOLD, the same in fee simple forever.
AND GRANTOR hereby specially warrants the title to the
Property, and will defend the same against the lawful claims of all persons
whomsoever claiming by, through or under Grantor, but none others.
IN WITNESS WHEREOF, GRANTOR has caused this Special Warranty
Deed to be executed as of the date first above written.
WITNESSED BY: CENTER RETAIL PARTNERS, a Florida general
partnership:
- -------------------- By: Arvida/JMB Managers, Inc., a Florida
Name: corporation, its General Partner
--------------
By:
- -------------------- ------------------------------
Name: Name:
-------------- ------------------------------
Title:
------------------------------
<PAGE>
WITNESSED BY: CENTER RETAIL PARTNERS, a
Delaware limited partnership:
- -------------------- By: JMB/PCH Corporation, an Illinois
Name: corporation, its General Partner
--------------
By:
- -------------------- ------------------------------
Name: Name:
-------------- ------------------------------
Title:
------------------------------
WITNESSED BY: CENTER OFFICE PARTNERS, a Florida general
partnership:
- -------------------- By: Arvida/JMB Managers, Inc., a Delaware
Name: corporation, its General Partner
--------------
By:
- -------------------- ------------------------------
Name: Name:
-------------- ------------------------------
Title:
------------------------------
<PAGE>
WITNESSED BY: CENTER HOTEL PARTNERSHIP, a
Delaware limited partnership:
- -------------------- By: JMB/PCH Corporation, an Illinois
Name: corporation, its General Partner
--------------
By:
- -------------------- ------------------------------
Name: Name:
-------------- ------------------------------
Title:
------------------------------
WITNESSED BY: CENTER HOTEL PARTNERSHIP, a Florida general
partnership:
- -------------------- By: Arvida/JMB Managers, a Delaware
Name: corporation, its General Partner
--------------
By:
- -------------------- ------------------------------
Name: Name:
-------------- ------------------------------
Title:
------------------------------
STATE OF ___________ )
) SS:
COUNTY OF ___________ )
The foregoing instrument was acknowledged before me this _____
day of ______, 1997, by ________________, as ______________ of Arvida/JMB
Managers, Inc., a Florida corporation, General Partner of CENTER RETAIL
PARTNERS, a Florida general partnership, on behalf of the partnership, who
is personally known to me or who has produced a driver's license as
identification.
__________________________________
Name:
Notary Public, State of ________________
My commission expires:
<PAGE>
STATE OF ___________ )
) SS:
COUNTY OF ___________ )
The foregoing instrument was acknowledged before me this _____
day of ______, 1997, by _________________, as ______________ of JMB/PCH
Corporation, an Illinois corporation, General Partner of CENTER HOTEL
LIMITED PARTNERSHIP, a Delaware limited partnership, on behalf of the
partnership, who is personally known to me or who has produced a driver's
license as identification.
__________________________________
Name:
Notary Public, State of ________________
My commission expires:
STATE OF ___________ )
) SS:
COUNTY OF ___________ )
The foregoing instrument was acknowledged before me this _____
day of ______, 1997, by ______________, as _______________ of Arvida/JMB
Managers, Inc., a Delaware corporation, General Partner of CENTER OFFICE
PARTNERS, a Florida general partnership, on behalf of the partnership, who
is personally known to me or who has produced a driver's license as
identification.
__________________________________
Name:
Notary Public, State of ________________
My commission expires:
<PAGE>
FORM F-9.3(g)
ASSIGNMENT AND ASSUMPTION OF PERMITS AND CONTRACTS
--------------------------------------------------
THIS ASSIGNMENT AND ASSUMPTION OF PERMITS AND CONTRACTS (this
"Assignment") is made and entered into as of this ____ day of
_______________, 1997, by and between CENTER RETAIL PARTNERS, a Florida
general partnership ("Retail"), CENTER OFFICE PARTNERS, a Florida general
partnership ("Office") and CENTER HOTEL LIMITED PARTNERSHIP, a Delaware
limited partnership ("Hotel", and collectively with Retail and Office, the
"Assignor"), and ____________________________________, a _________________
("Assignee").
W I T N E S S E T H:
WHEREAS, Assignor and Assignee entered into that certain
Agreement for Sale and Purchase (the "Agreement") dated
___________________, for the sale and purchase of real property more
particularly described in Exhibit A attached hereto (the "Property"); and
WHEREAS, in accordance with the terms of the Agreement,
Assignor desires to assign, transfer, set over and deliver to Assignee all
of Assignor's right, title and interest in, and Assignee desires to assume
all duties and obligations of Assignor with respect to, the Permits and
Contracts listed on Exhibit B attached hereto.
NOW, THEREFORE, in accordance with the Agreement and in
consideration of the sum of Ten Dollars ($10.00) and other good and
valuable consideration, the sufficiency and receipt of which are hereby
acknowledged, the parties do hereby agree as follows:
1. ASSIGNMENT: Assignor does hereby assign, transfer, set
over and deliver unto Assignee all of the Assignor's right, title and
interest in and to the Permits and Contracts.
2. ASSUMPTION: Assignee hereby accepts the foregoing
assignment and hereby assumes all duties and obligations under the same
arising on or after the date hereof.
3. ASSIGNOR INDEMNIFICATION: Assignor hereby agrees to
indemnify, defend and hold harmless Assignee from and against any loss,
cost, damage, or expense arising from or in connection with any liability
or obligation related to the Permits and Contracts arising by virtue of
acts or omissions by Assignor which have accrued or occurred prior to the
date hereof.
4. ASSIGNEE INDEMNIFICATION: Assignee hereby agrees to
indemnify, defend and hold harmless Assignor from and against any loss,
cost, damage, or expense arising from or in connection with any liability
or obligation related to the Permits and Contracts arising by virtue of
acts or omissions by Assignee which accrue or occur on or after the date
hereof.
<PAGE>
5. PARTIES BOUND: This Assignment shall be binding upon,
and inure to the benefit of, the parties to this Assignment and their
respective heirs, legal representatives, successors and assigns.
6. COUNTERPARTS: This Assignment may be executed in one or
more counterparts and shall become effective when one or more counterparts
have been signed by all of the parties. Each counterpart shall be deemed
an original but all counterparts shall constitute a single instrument.
7. LITIGATION: If the event of litigation between the
parties concerning the rights and obligations pursuant to this Assignment,
the prevailing party will be entitled to reimbursement of its costs and
expenses, including without limitation reasonable attorneys' fees, incurred
in connection with the prosecution or defense of such action, including
those incurred in any appellate proceedings, and whether or not the action
is prosecuted to a final judgment.
8. SEVERABILITY: If any of the provisions, terms or
conditions of this Assignment are held to be invalid or unenforceable, the
remaining provisions, terms and conditions that can be given effect without
the invalid or unenforceable part of the Assignment shall remain in full
force and effect.
IN WITNESS WHEREOF, this Assignment has been signed, sealed and
delivered by the parties as of the date first above written.
WITNESSED BY: CENTER RETAIL PARTNERS, a Florida general
partnership:
- -------------------- By: Arvida/JMB Managers, Inc., a Florida
Name: corporation, its General Partner
--------------
By:
- -------------------- ------------------------------
Name: Name:
-------------- ------------------------------
Title:
------------------------------
WITNESSED BY: CENTER HOTEL LIMITED PARTNERSHIP, a
Delaware limited partnership:
- -------------------- By: JMB/PCH Corporation, an Illinois
Name: corporation, its General Partner
--------------
By:
- -------------------- ------------------------------
Name: Name:
-------------- ------------------------------
Title:
------------------------------
<PAGE>
WITNESSED BY: CENTER OFFICE PARTNERS, a Florida general
partnership:
- -------------------- By: Arvida/JMB Managers, Inc., a Delaware
Name: corporation, its General Partner
--------------
By:
- -------------------- ------------------------------
Name: Name:
-------------- ------------------------------
Title:
------------------------------
WITNESSED BY: ASSIGNEE:
- -------------------- By:
Name:
--------------
By:
- -------------------- ------------------------------
Name: Name:
-------------- ------------------------------
Title:
------------------------------
<PAGE>
FORM F-9.3(h)
BILL OF SALE
------------
Made and entered into as of this ____ day of _______________,
1997, by and between CENTER RETAIL PARTNERS, a Florida general partnership
("Retail"), CENTER OFFICE PARTNERS, a Florida general partnership
("Office") and CENTER HOTEL LIMITED PARTNERSHIP, a Delaware limited
partnership ("Hotel", and collectively with Retail and Office, the
"Seller"), and _____________________________, a _______________________
("Buyer").
W I T N E S S E T H:
WHEREAS, Seller and Buyer entered into that certain Agreement
for Sale and Purchase (the "Agreement") dated ________________________, for
the sale and purchase of real property more particularly described in
Exhibit A attached hereto (the "Property"); and
WHEREAS, in accordance with the terms of the Agreement,
Assignor desires to assign, transfer, set over and deliver to Assignee all
of Assignor's right, title and interest in, and Assignee desires to assume
all duties and obligations of Assignor with respect to, all items of
personalty (collectively, the "Personalty") situated at or on the Property
(listed in Exhibit B attached hereto), excluding any personal property
owned or leased by tenants of the Property.
NOW, THEREFORE, in accordance with the Agreement and in
consideration of the sum of Ten Dollars ($10.00) and other good and
valuable consideration, the sufficiency and receipt of which are hereby
acknowledged, the parties do hereby agree as follows:
1. Seller does hereby grant, bargain, transfer, set over and
deliver unto Buyer all of Seller's right, title and interest in and to the
Personalty.
2. The Buyer hereby acknowledges and agrees that it is
purchasing the Personalty in "as is" condition.
3. This Bill of Sale shall be binding upon, and inure to the
benefit of, the parties hereto and their respective heirs, legal
representatives, successors and assigns.
<PAGE>
IN WITNESS WHEREOF, this Bill of Sale has been signed, sealed
and delivered by the parties as of the date first above written.
WITNESSED BY: CENTER RETAIL PARTNERS, a Florida general
partnership:
- -------------------- By: Arvida/JMB Managers, Inc., a Florida
Name: corporation, its General Partner
--------------
By:
- -------------------- ------------------------------
Name: Name:
-------------- ------------------------------
Title:
------------------------------
WITNESSED BY: CENTER HOTEL LIMITED PARTNERSHIP, a
Delaware limited partnership:
- -------------------- By: JMB/PCH Corporation, an Illinois
Name: corporation, its General Partner
--------------
By:
- -------------------- ------------------------------
Name: Name:
-------------- ------------------------------
Title:
------------------------------
WITNESSED BY: CENTER OFFICE PARTNERS, a Florida general
partnership:
- -------------------- By: Arvida/JMB Managers, Inc., a Delaware
Name: corporation, its General Partner
--------------
By:
- -------------------- ------------------------------
Name: Name:
-------------- ------------------------------
Title:
------------------------------
WITNESSED BY: ASSIGNEE:
- -------------------- By:
Name:
--------------
By:
- -------------------- ------------------------------
Name: Name:
-------------- ------------------------------
Title:
------------------------------
<PAGE>
FORM F-9.3(i)
TENANT ESTOPPEL CERTIFICATE
---------------------------
DATE: ______________, 1997
TO: ______________________, a __________________________ ("Buyer")
RE: Lease (the "Lease") dated _____________________________ by
and between __________________ as landlord (the "Landlord")
and ___________________ as tenant (the "Tenant"), with
respect to _______________________________
(the "Leased Premises")
Gentlemen:
As Tenant under the Lease, the undersigned hereby acknowledges for
the benefit of Buyer, which is about to purchase the Leased Premises, and
the lender, if any, the truth and accuracy of the following statements
pertaining to said Lease:
1. Date of Lease:
2. Description of Any and All Amendments, Modification or
Assignments of the Lease:
3. Term of Lease / Date of Expiration:
4. Current Monthly Rent / Common Area Maintenance / Other Charges:
5. Security Deposit:
6. Guarantor(s), if any:
7. The Lease is in full force and effect.
8. The Tenant is in exclusive possession of the Leased Premises
under the terms of the Lease.
9. All rent, charges or other payments due the Landlord under the
Lease have been paid through ________________, 1997. Rent has not been
paid more than one (1) month in advance.
<PAGE>
10. There are not any uncured defaults on the part of Landlord or
Tenant under the Lease and, to the best of Tenant's knowledge and belief,
no event has occurred which, with notice and/or lapse of time, would cause
such a default to occur by either Landlord or Tenant.
11. All tenant improvements to be constructed by Landlord under the
Lease have been fully completed and accepted by Tenant.
12. The Tenant does not have any outstanding option to renew the
Lease, option to expand the Leased Premises or option to purchase any part
of the Leased Premises other than as follows:
13. The Lease, together with any modifications listed in item 2
hereof, sets forth the entire agreement between the Landlord and the
Tenant. There are no other documents or agreements affecting the rights of
the parties except as follows:
14. This certification shall be binding upon Tenant, its successors
and assigns, and shall inure to the benefit of Buyer, their respective
successors and assigns, and all parties claiming through or under such
persons.
TENANT:
---------------------------------
By:
---------------------------
Name:
---------------------------
Title:
---------------------------
STATE OF ____________ )
):ss:
COUNTY OF _____________ )
The foregoing instrument was acknowledged before me this ___ day of
_________, 1997, by _____________________, as _______________ of
________________________, a ______ ________________, on behalf of the
________________, who is personally known to me or has produced a driver's
license as identification.
__________________________________
Name:
Notary Public, State of _______________
My commission expires:
<PAGE>
FORM F-9.3(j)
ASSIGNMENT AND ASSUMPTION OF LEASES
-----------------------------------
THIS ASSIGNMENT AND ASSUMPTION OF LEASES (this "Assignment") is
made and entered into as of this ____ day of _______________, 1997, by and
between CENTER RETAIL PARTNERS, a Florida general partnership ("Retail"),
CENTER OFFICE PARTNERS, a Florida general partnership ("Office") and CENTER
HOTEL LIMITED PARTNERSHIP, a Delaware limited partnership ("Hotel", and
collectively with Retail and Office, the "Assignor"), and
___________________________, a ____________________________ ("Assignee").
W I T N E S S E T H:
WHEREAS, Assignor and Assignee entered into that certain
Agreement for Sale and Purchase (the "Agreement") dated
___________________, for the sale and purchase of real property more
particularly described in Exhibit A attached hereto (the "Property");
WHEREAS, in accordance with the terms of the Agreement,
Assignor desires to assign, transfer, set over and deliver to Assignee all
of Assignor's right, title and interest in, and Assignee desires to assume
certain duties and obligations of Assignor with respect to, the Leases (as
defined in the Agreement and listed on Exhibit B attached hereto).
NOW, THEREFORE, in accordance with the Agreement and in
consideration of the sum of Ten Dollars ($10.00) and other good and
valuable consideration, the sufficiency and receipt of which are hereby
acknowledged, the parties do hereby agree as follows:
1. ASSIGNMENT: Assignor does hereby assign, transfer, set
over and deliver unto Assignee all of the Assignor's right, title and
interest in and to the Leases.
2. ASSUMPTION: Assignee hereby accepts the foregoing
assignment and hereby assumes all duties and obligations under the same
arising on or after the date hereof.
3. ASSIGNOR INDEMNIFICATION: Assignor hereby agrees to
indemnify, defend and hold harmless Assignee from and against any loss,
cost, damage, or expense arising from or in connection with any liability
or obligation related to the Leases arising by virtue of acts or omissions
by Assignor which have accrued or occurred prior to the date hereof.
4. ASSIGNEE INDEMNIFICATION: Assignee hereby agrees to
indemnify, defend and hold harmless Assignor from and against any loss,
cost, damage, or expense arising from or in connection with any liability
or obligation related to the Leases arising by virtue of acts or omissions
by Assignee which accrue or occur on or after the date hereof.
5. PARTIES BOUND: This Assignment shall be binding upon,
and inure to the benefit of, the parties to this Assignment and their
respective heirs, legal representatives, successors and assigns.
<PAGE>
6. COUNTERPARTS: This Assignment may be executed in one or
more counterparts and shall become effective when one or more counterparts
have been signed by all of the parties. Each counterpart shall be deemed
an original but all counterparts shall constitute a single instrument.
7. LITIGATION: If the event of litigation between the
parties concerning the rights and obligations pursuant to this Assignment,
the prevailing party will be entitled to reimbursement of its costs and
expenses, including without limitation reasonable attorneys' fees, incurred
in connection with the prosecution or defense of such action, including
those incurred in any appellate proceedings, and whether or not the action
is prosecuted to a final judgment.
8. SEVERABILITY: If any of the provisions, terms or
conditions of this Assignment are held to be invalid or unenforceable, the
remaining provisions, terms and conditions that can be given effect without
the invalid or unenforceable part of the Assignment shall remain in full
force and effect.
IN WITNESS WHEREOF, this Assignment has been signed, sealed and
delivered by the parties as of the date first above written.
WITNESSED BY: CENTER RETAIL PARTNERS, a Florida general
partnership:
- -------------------- By: Arvida/JMB Managers, Inc., a Florida
Name: corporation, its General Partner
--------------
By:
- -------------------- ------------------------------
Name: Name:
-------------- ------------------------------
Title:
------------------------------
WITNESSED BY: CENTER HOTEL LIMITED PARTNERSHIP, a
Delaware limited partnership:
- -------------------- By: JMB/PCH Corporation, an Illinois
Name: corporation, its General Partner
--------------
By:
- -------------------- ------------------------------
Name: Name:
-------------- ------------------------------
Title:
------------------------------
<PAGE>
WITNESSED BY: CENTER OFFICE PARTNERS, a Florida general
partnership:
- -------------------- By: Arvida/JMB Managers, Inc., a Delaware
Name: corporation, its General Partner
--------------
By:
- -------------------- ------------------------------
Name: Name:
-------------- ------------------------------
Title:
------------------------------
WITNESSED BY: ASSIGNEE:
- -------------------- By:
Name:
--------------
By:
- -------------------- ------------------------------
Name: Name:
-------------- ------------------------------
Title:
------------------------------
<PAGE>
FORM F-9.3(k)
ASSIGNMENT AND ASSUMPTION OF HOTEL LICENSE AGREEMENT
----------------------------------------------------
THIS ASSIGNMENT AND ASSUMPTION OF HOTEL LICENSE AGREEMENT (this
"Assignment") is made and entered into as of this ____ day of
_______________, 1997, by and between CENTER RETAIL PARTNERS, a Florida
general partnership ("Retail"), CENTER OFFICE PARTNERS, a Florida general
partnership ("Office") and CENTER HOTEL LIMITED PARTNERSHIP, a Delaware
limited partnership ("Hotel", and collectively with Retail and Office, the
"Assignor"), and ____________________, a ____________________ ("Assignee").
W I T N E S S E T H:
-------------------
WHEREAS, Assignor and Assignee entered into that certain
Agreement for Sale and Purchase (the "Agreement") dated
___________________, for the sale and purchase of real property more
particularly described in Exhibit A attached hereto (the "Property"); and
WHEREAS, Assignor and Carlton Hospitality Group, Inc. entered
into that certain Hotel License Agreement dated April 8, 1985 (the "Hotel
License Agreement"); and
WHEREAS, in accordance with the terms of the Agreement,
Assignor desires to assign, transfer, set over and deliver to Assignee all
of Assignor's right, title and interest in, and Assignee desires to assume
certain duties and obligations of Assignor with respect to, the Hotel
License Agreement (a copy of which is attached hereto as Exhibit B).
NOW, THEREFORE, in accordance with the Agreement and in
consideration of the sum of Ten Dollars ($10.00) and other good and
valuable consideration, the sufficiency and receipt of which are hereby
acknowledged, the parties do hereby agree as follows:
1. ASSIGNMENT: Assignor does hereby assign, transfer, set
over and deliver unto Assignee all of the Assignor's right, title and
interest in and to the Hotel License Agreement.
2. ASSUMPTION: Assignee hereby accepts the foregoing
assignment and hereby assumes all duties and obligations under the same
arising on or after the date hereof.
3. ASSIGNOR INDEMNIFICATION: Assignor hereby agrees to
indemnify, defend and hold harmless Assignee from and against any loss,
cost, damage, or expense arising from or in connection with any liability
or obligation related to the Hotel License Agreement arising by virtue of
acts or omissions by Assignor which have accrued or occurred prior to the
date hereof.
4. ASSIGNEE INDEMNIFICATION: Assignee hereby agrees to
indemnify, defend and hold harmless Assignor from and against any loss,
cost, damage, or expense arising from or in connection with any liability
or obligation related to the Hotel License Agreement arising by virtue of
acts or omissions by Assignee which accrue or occur on or after the date
hereof.
<PAGE>
5. PARTIES BOUND: This Assignment shall be binding upon,
and inure to the benefit of, the parties to this Assignment and their
respective heirs, legal representatives, successors and assigns.
6. COUNTERPARTS: This Assignment may be executed in one or
more counterparts and shall become effective when one or more counterparts
have been signed by all of the parties. Each counterpart shall be deemed
an original but all counterparts shall constitute a single instrument.
7. LITIGATION: If the event of litigation between the
parties concerning the rights and obligations pursuant to this Assignment,
the prevailing party will be entitled to reimbursement of its costs and
expenses, including without limitation reasonable attorneys' fees, incurred
in connection with the prosecution or defense of such action, including
those incurred in any appellate proceedings, and whether or not the action
is prosecuted to a final judgment.
8. SEVERABILITY: If any of the provisions, terms or
conditions of this Assignment are held to be invalid or unenforceable, the
remaining provisions, terms and conditions that can be given effect without
the invalid or unenforceable part of the Assignment shall remain in full
force and effect.
IN WITNESS WHEREOF, this Assignment has been signed, sealed and
delivered by the parties as of the date first above written.
WITNESSED BY: CENTER RETAIL PARTNERS, a Florida general
partnership:
- -------------------- By: Arvida/JMB Managers, Inc., a Florida
Name: corporation, its General Partner
--------------
By:
- -------------------- ------------------------------
Name: Name:
-------------- ------------------------------
Title:
------------------------------
WITNESSED BY: CENTER HOTEL LIMITED PARTNERSHIP, a
Delaware limited partnership:
- -------------------- By: JMB/PCH Corporation, an Illinois
Name: corporation, its General Partner
--------------
By:
- -------------------- ------------------------------
Name: Name:
-------------- ------------------------------
Title:
------------------------------
<PAGE>
WITNESSED BY: CENTER OFFICE PARTNERS, a Florida general
partnership:
- -------------------- By: Arvida/JMB Managers, Inc., a Delaware
Name: corporation, its General Partner
--------------
By:
- -------------------- ------------------------------
Name: Name:
-------------- ------------------------------
Title:
------------------------------
WITNESSED BY: ASSIGNEE:
- -------------------- By:
Name:
--------------
By:
- -------------------- ------------------------------
Name: Name:
-------------- ------------------------------
Title:
------------------------------
Pursuant to Section 11 of the Hotel License Agreement, the
undersigned, CARLSON HOSPITALITY GROUP, INC., as Licensor, does hereby
consent to the foregoing Assignment.
WITNESSED BY: LICENSOR:
- -------------------- By: CARLSON HOSPITALITY GROUP, INC.
Name:
--------------
By:
- -------------------- ------------------------------
Name: Name:
-------------- ------------------------------
Title:
------------------------------
<PAGE>
FORM F-9.3(m)
ASSIGNMENT AND ASSUMPTION OF RIGHTS UNDER DECLARATION
-----------------------------------------------------
THIS ASSIGNMENT AND ASSUMPTION OF RIGHTS UNDER DECLARATION
(this "Assignment") is made and entered into as of this ____ day of
_______________, 1997, by and between ARVIDA/JMB PARTNERS, a Florida
general partnership (the "Assignor"), and _____________________________, a
___________________ ("Assignee").
W I T N E S S E T H:
WHEREAS, Assignor executed that certain Parkway Center
Declaration of Covenants, Restrictions and Reciprocal Easements, dated
April 6th, 1988, and recorded in Official Records Book 5653, Page 766 of
the Public Records of Palm Beach County, Florida (the "Declaration"); and
WHEREAS, Assignee and Center Retail Partners, a Florida general
partnership, Center Office Partners, a Florida general partnership and
Center Hotel Limited Partnership, a Delaware limited partnership
(collectively, the "Seller") entered into that certain Agreement for Sale
and Purchase (the "Agreement") dated ___________________, for the sale and
purchase of real property more particularly described in Exhibit A attached
hereto (the "Property"); and
WHEREAS, pursuant to Section 10.3 of the Declaration, Assignor
desires to assign, transfer, set over and deliver to Assignee all of
Assignor's rights, benefits, privileges, duties and obligations under the
Declaration.
NOW, THEREFORE, in accordance with the Agreement and in
consideration of the sum of Ten Dollars ($10.00) and other good and
valuable consideration, the sufficiency and receipt of which are hereby
acknowledged, the parties do hereby agree as follows:
1. ASSIGNMENT: Pursuant to Section 10.3 of the Declaration,
Assignor does hereby assign, transfer, set over and deliver unto Assignee
all of the Assignor's rights, benefits, privileges and obligations under
the Declaration.
2. ASSUMPTION: Assignee hereby accepts the foregoing
assignment and hereby assumes all duties and obligations under the same
arising on or after the date hereof.
3. ASSIGNOR INDEMNIFICATION: Assignor hereby agrees to
indemnify, defend and hold harmless Assignee from and against any loss,
cost, damage, or expense arising from or in connection with any liability
or obligation related to the Declaration arising by virtue of acts or
omissions by Assignor which have accrued or occurred prior to the date
hereof.
4. ASSIGNEE INDEMNIFICATION: Assignee hereby agrees to
indemnify, defend and hold harmless Assignor from and against any loss,
cost, damage, or expense arising from or
<PAGE>
in connection with any liability or obligation related to the Declaration
arising by virtue of acts or omissions by Assignee which accrue or occur on
or after the date hereof.
5. PARTIES BOUND: This Assignment shall be binding upon,
and inure to the benefit of, the parties to this Assignment and their
respective heirs, legal representatives, successors and assigns.
6. COUNTERPARTS: This Assignment may be executed in one or
more counterparts and shall become effective when one or more counterparts
have been signed by all of the parties. Each counterpart shall be deemed
an original but all counterparts shall constitute a single instrument.
7. LITIGATION: If the event of litigation between the
parties concerning the rights and obligations pursuant to this Assignment,
the prevailing party will be entitled to reimbursement of its costs and
expenses, including without limitation reasonable attorneys' fees, incurred
in connection with the prosecution or defense of such action, including
those incurred in any appellate proceedings, and whether or not the action
is prosecuted to a final judgment.
8. SEVERABILITY: If any of the provisions, terms or
conditions of this Assignment are held to be invalid or unenforceable, the
remaining provisions, terms and conditions that can be given effect without
the invalid or unenforceable part of the Assignment shall remain in full
force and effect.
IN WITNESS WHEREOF, this Assignment has been signed, sealed and
delivered by the parties as of the date first above written.
WITNESSED BY: ARVIDA/JMB PARTNERS, a Florida general
partnership:
- -------------------- By:
Name: ------------------------------------
--------------
By:
- -------------------- ------------------------------
Name: Name:
-------------- ------------------------------
Title:
------------------------------
<PAGE>
WITNESSED BY: ASSIGNEE:
- -------------------- By:
Name: ------------------------------------
--------------
By:
- -------------------- ------------------------------
Name: Name:
-------------- ------------------------------
Title:
------------------------------
<PAGE>
FORM F-9.3(n)
ESTOPPEL CERTIFICATE
--------------------
DATE: ___________, 1997
TO: _______________________________
RE: Parkway Center (the "Property")
-------------------------------
Gentlemen:
The PARKWAY CENTER PROPERTY OWNERS ASSOCIATION (the
"Association"), as the administrator under that certain Parkway Center
Declaration of Covenants, Restrictions and Reciprocal Easements, dated
April 6th, 1988, and recorded in Official Records Book 5653, Page 766 of
the Public Records of Palm Beach County, Florida (the "Declaration") hereby
certifies to and for the benefit of ______________________, a
____________________, the future owner of the Property, the truth and
accuracy of the following statements pertaining to said Declaration:
1. To the best of the Association's knowledge, the Property
is not, as of the date of this Certificate, in default of any of the
requirements contained in, or subject to any liens imposed pursuant to, the
Declaration.
2. All assessments, regular and special, due on the Property
have been paid through _________________________________.
3. There are no unpaid assessments, regular or special, due
on the Property and no other amounts assessed, due or owing, pursuant to
the Declaration.
PARKWAY CENTER PROPERTY OWNERS
ASSOCIATION
By:
------------------------------
Name:
------------------------------
Title:
------------------------------
