<PAGE>
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549-1004
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported) August 6, 1998
-------------------------------
FIRST CAPITAL GROWTH FUND - XIV, A REAL ESTATE LIMITED PARTNERSHIP
- --------------------------------------------------------------------------------
(Exact name of registrant as specified in its charter)
Illinois 0-17611 36-3552804
- --------------------------------------------------------------------------------
(State or other jurisdiction (Commission (IRS Employer
of incorporation) File Number) Identification No.)
Two North Riverside Plaza, Suite 1000, Chicago, Illinois 60606-2607
- --------------------------------------------------------------------------------
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code (312) 207-0020
-----------------------------
- --------------------------------------------------------------------------------
(Former name or former address, if changed since last report.)
This document consists of 93 pages.
The Exhibit Index is located on page 3.
<PAGE>
ITEM 2. DISPOSITION OF ASSETS
- ------- ---------------------
1800 Sherman Associates, a joint venture in which First Capital Growth Fund -
Series XIV, a Real Estate Limited Partnership (the "Registrant") owns a 50%
interest, sold its interest in the real property commonly known as 1800 Sherman
Office Building ("1800 Sherman"), located in Evanston, Illinois to Prentiss
Properties Acquisition Partners, L.P., a Delaware Corporation.
The closing of this transaction occurred on August 6, 1998. 1800 Sherman was
sold for cash to an unrelated party pursuant to arm's-length negotiations. The
gross sale price was $15,050,000. The Registrant's share of Sale Proceeds was
approximately $7,275,000, which was net of actual and estimated closing
expenses. For the quarter ending September 30, 1998, the Registrant will record
a gain for financial reporting purposes of approximately $1,600,000 from this
transaction. In accordance with the contract to sell the property, the joint
venture placed $500,000 of the proceeds from this transaction into an interest
bearing escrow account for a nine-month period. The funds placed into escrow are
intended to cover any potential claims asserted by the purchaser arising from
the representations and warranties made by the joint venture. The Partnership
intends to distribute $6,896,100 or $47.50 per Unit on November 30, 1998 to
Limited Partners of record as of August 6, 1998. Following this distribution,
the General Partner will work towards wrapping up the Partnership's affairs.
Upon completion, together with the release of the remaining funds held in
escrow, the Partnership intends to make a liquidating distribution, less funds
needed to cover any remaining or potential liabilities, during 1999.
Page 2
<PAGE>
ITEM 7. PRO FORMA FINANCIAL INFORMATION AND EXHIBITS
- ------- --------------------------------------------
(page 5) Pro Forma Financial Information
Exhibits
2.1 (page 10) Closing Statement, dated August 6, 1998, between the
Registrant and Prentiss Properties Acquisition Partners, L.P., a
Delaware Corporation ("Purchaser").
2.2 (page 18) Contract for Purchase of Real Property, executed in July
1998, between the Registrant and Purchaser.
No information is required under Items 1, 3, 4, 5, 6 and 8; therefore, those
Items have been omitted.
Page 3
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
FIRST CAPITAL GROWTH FUND - SERIES XIV,
A REAL ESTATE LIMITED PARTNERSHIP
By: FIRST CAPITAL FINANCIAL CORPORATION
As General Partner
August 21, 1998 By: /s/ NORMAN M. FIELD
- --------------- --------------------------------------
(Date) NORMAN M. FIELD
Vice President - Finance and Treasurer
Page 4
<PAGE>
FIRST CAPITAL GROWTH FUND - XIV, A REAL ESTATE LIMITED PARTNERSHIP
The accompanying unaudited Pro Forma Balance Sheet has been presented as if the
sale of 1800 Sherman had occurred on June 30, 1998. The accompanying unaudited
Pro Forma Statement of Income and Expenses for the six months ended June 30,
1998 has been presented as if the sale of 1800 Sherman had occurred on December
31, 1997. The accompanying unaudited Pro Forma Statement of Income and Expenses
for the year ended December 31, 1997 has been presented as if the sale of 1800
Sherman had occurred on December 31, 1996. In the opinion of the General
Partner, all adjustments necessary to reflect the financial condition and
results of operations of the Partnership exclusive of 1800 Sherman have been
made. The unaudited pro forma financial statements are not necessarily
indicative of what the actual financial position and results of operations would
have been had such transactions actually occurred as of June 30, 1998 and
December 31, 1997 and 1996, nor do they purport to represent the results of
operations of the Registrant for future periods.
Page 5
<PAGE>
FIRST CAPITAL GROWTH FUND - XIV, A REAL ESTATE LIMITED PARTNERSHIP
PRO FORMA BALANCE SHEET
(Unaudited)
(All dollars rounded to nearest 00s)
<TABLE>
<CAPTION>
ASSETS
Pro Forma
June 30, Pro Forma Balance
1998 Adjustments Sheet
----------- ----------- ----------
<S> <C> <C> <C>
Investment in commercial rental property:
Land $ 1,319,000 $(1,319,000) $
Buildings and improvements 5,967,400 (5,967,400)
----------- ----------- ----------
7,286,400 (7,286,400)
Accumulated depreciation and amortization (1,622,200) 1,622,200
----------- ----------- ----------
Total investment properties, net of
accumulated depreciation and amortization 5,664,200 (5,664,200)
Cash and cash equivalents 2,091,400 6,460,200 8,551,600
Investment in debt securities 496,700 496,700
Escrow deposits 250,000 250,000
Rents receivable 35,000 (35,000)
Due from Affiliates, net 5,700 5,700
Other assets 10,900 (3,600) 7,300
----------- ----------- ----------
$ 8,303,900 $ 1,007,400 $9,311,300
=========== =========== ==========
LIABILITIES AND PARTNERS' CAPITAL
Liabilities:
Accrued real estate taxes $ 541,200 $ (541,200) $
Distributions payable 129,000 6,896,100 7,025,100
Accounts payable and accrued expenses 51,600 (16,700) 34,900
Security deposits 39,700 (39,700)
----------- ----------- ----------
761,500 6,298,500 7,060,000
----------- ----------- ----------
Partners' capital:
General Partner 147,300 16,000 163,300
Limited Partners (145,182 Units outstanding) 7,395,100 (5,307,100) 2,088,000
----------- ----------- ----------
7,542,400 (5,291,100) 2,251,300
----------- ----------- ----------
$ 8,303,900 $ 1,007,400 $9,311,300
=========== =========== ==========
</TABLE>
The accompanying notes are an integral part of the
pro forma financial statements.
Page 6
<PAGE>
FIRST CAPITAL GROWTH FUND - XIV, A REAL ESTATE LIMITED PARTNERSHIP
PRO FORMA STATEMENT OF INCOME AND EXPENSES
(Unaudited)
(All dollars rounded to nearest 00s
except per Unit amounts)
<TABLE>
<CAPTION>
Six Months Ended June 30, 1998
-------------------------------------------------
Pro Forma
Statement of Statement of
Income and Pro Forma Income and
Expenses Adjustments Expenses
--------------- ------------ -------------
<S> <C> <C> <C>
Income:
Rental $ 809,500 $ (809,500) $
Interest 62,900 62,900
--------------- ------------ -------------
872,400 (809,500) 62,900
--------------- ------------ -------------
Expenses:
Depreciation and amortization 131,800 (131,800)
Property operating:
Affiliates 47,300 (47,300)
Nonaffiliates 73,900 (73,900)
Real estate taxes 265,600 (265,600)
Insurance - Affiliate 3,500 (3,500)
Repairs and maintenance 83,900 (83,900)
General and administrative:
Affiliates 5,800 5,800
Nonaffiliates 33,100 33,100
--------------- ------------ -------------
644,900 (606,000) 38,900
--------------- ------------ -------------
Net income $ 227,500 $ (203,500) $ 24,000
=============== ============ =============
Net income allocated to General Partner $ 22,800 $ (20,400) $ 2,400
=============== ============ =============
Net income allocated to Limited Partners $ 204,700 $ (183,100) $ 21,600
=============== ============ =============
Net income allocated to Limited
Partners per Unit (145,182 Units
outstanding) $ 1.41 $ (1.26) $ 0.15
=============== ============ =============
</TABLE>
The accompanying notes are an integral part of the pro forma financial
statements.
Page 7
<PAGE>
FIRST CAPITAL GROWTH FUND - XIV, A REAL ESTATE LIMITED PARTNERSHIP
PRO FORMA STATEMENT OF INCOME AND EXPENSES
(All dollars rounded to nearest 00s
except per Unit amounts)
<TABLE>
<CAPTION>
Year Ended December 31, 1997
----------------------------------------------
Pro Forma
Statement of
Statement of Pro Forma Income and
Income and Adjustments Expenses
Expenses (Unaudited) (Unaudited)
----------- ----------- -----------
<S> <C> <C> <C>
Income:
Rental $1,577,900 $(1,577,900) $
Interest 135,300 135,300
---------- ----------- --------
1,713,200 (1,577,900) 135,300
---------- ----------- --------
Expenses:
Depreciation and amortization 252,400 (252,400)
Property operating:
Affiliates 100,900 (100,900)
Nonaffiliates 139,000 (139,000)
Real estate taxes 525,500 (525,500)
Insurance - Affiliate 11,400 (11,400)
Repairs and maintenance 147,200 (147,200)
General and administrative:
Affiliates 13,600 13,600
Nonaffiliates 51,500 51,500
---------- ----------- --------
1,241,500 (1,176,400) 65,100
---------- ----------- --------
Net income $ 471,700 $ (401,500) $ 70,200
========== =========== ========
Net income allocated to General Partner $ 47,200 $ (40,200) $ 7,000
========== =========== ========
Net income allocated to Limited Partners $ 424,500 $ (361,300) $ 63,200
========== =========== ========
Net income allocated to Limited
Partners per Unit (145,182 Units
outstanding) $ 2.92 $ (2.49) $ 0.43
========== =========== ========
</TABLE>
The accompanying notes are an integral part of the pro forma
financial statements.
Page 8
<PAGE>
FIRST CAPITAL GROWTH FUND -- SERIES XIV, A REAL ESTATE LIMITED PARTNERSHIP
Notes to Pro Forma Balance Sheet and
Pro Forma Statements of Income and Expenses
1) For the purpose of the Pro Forma Balance Sheet:
a) the accounts for land, buildings and improvements, accumulated
depreciation and amortization, rents receivable, escrow deposits, other
assets, accounts payable and accrued expenses, security deposits and other
liabilities have been adjusted as of June 30, 1998 to reflect the sale of
the Registrant's interest in 1800 Sherman.
b) Cash and cash equivalents and escrow deposits have been adjusted to
include the Sale Proceeds of 1800 Sherman received and placed in escrow by
the Registrant.
c) Distributions payable have been adjusted to reflect the declaration of
a special distribution of 1800 Sherman Sale Proceeds.
2) For the purpose of the Pro Forma Statement of Income and Expenses for the
six months ended June 30, 1998 and for the year ended December 31, 1997, the
adjustments to the income and expenses reflect the elimination of the
Registrant's interest in the operations of 1800 Sherman.
Page 9
<PAGE>
- --------------------------------------------------------------------------------
CLOSING STATEMENT INFORMATION
- --------------------------------------------------------------------------------
<TABLE>
<CAPTION>
<S> <C>
Property Name: 1800 SHERMAN OFFICE BUILDING
Seller: 1800 SHERMAN ASSOCIATES
an Illinois general partnership
Purchaser: PRENTISS PROPERTIES ACQUISITION PARTNERS, L.P.
a Delaware limited partnership
Proration Date: 8/5/98
Proration as of: 11:59 PM, WEDNESDAY, AUGUST 5, 1998
Closing Date: 8/5/98
Closing as of: WEDNESDAY, AUGUST 5, 1998
Tax Begin Date: 8/1/98
Tax End Date: 8/5/98
Month Begin Date 8/1/98
Month End Date 8/31/98
</TABLE>
<PAGE>
CLOSING STATEMENT
1800 SHERMAN OFFICE BUILDING
- --------------------------------------------------------------------------------
SELLER: 1800 SHERMAN ASSOCIATES
an Illinois general partnership
PURCHASER: PRENTISS PROPERTIES ACQUISITION PARTNERS, L.P.
a Delaware limited partnership
PRORATION DATE: 11:59 PM, WEDNESDAY, AUGUST 5, 1998
CLOSING (FUNDING) DATE: WEDNESDAY, AUGUST 5, 1998
<TABLE>
<CAPTION>
- ---------------------------------------------------------------------------------------------------------------
CREDIT CREDIT
PURCHASER SELLER
---------------- ----------------
<S> <C> <C>
PURCHASE PRICE 14,800,000.00
EARNEST MONEY (held by the Chicago Title Insurance Company) 250,000.00
INTEREST ON EARNEST MONEY POC
CREDIT FOR 1997 SECOND INSTALLMENT OF PROPERTY TAXES 550,000.00
PRO-RATE AUGUST, 1998 LEASE CHARGES 148,573.23
[See Schedule D]
TENANT PREPAID RENTS 89.60
[See Schedule B]
TENANT IMPROVEMENT CREDIT FOR ARTHUR WINTER 2,800.00
PRO-RATE SERVICE CONTRACTS 15,618.03
[See Schedule C]
SECURITY DEPOSITS 67,577.59
[See Schedule D]
PARKING TAX CREDIT 7/21/98-8/31/98 884.00
[See Schedule E]
UNION VACATION CREDIT 2,559.36
EVANSTON WATER & SEWER DEPARTMENT COMPLIANCE CREDIT (NOTE 4) 972.00
---------------- ----------------
SUBTOTALS 1,036,273.81 14,802,800.00
CASH AMOUNT DUE TO SELLER 13,766,526.19
---------------- ----------------
TOTAL CREDITS 14,802,800.00 14,802,800.00
================ ===============
</TABLE>
NOTES:
[1] Utility payments shall be directed to the parties for their respective
periods of ownership based upon meter readings ordered the day before the
Closing Date, or if meter readings are made after closing, utility payments
will be reprorated after closing.
[2] Interest earned on the Earnest Money Deposit shall be returned directly to
Purchaser.
[3] The owner of the building is obligated to pay a sales tax to the City of
Evanston based on parking tickets sold. The seller is crediting the
purchaser with parking tickets sold and used during the sellers period of
ownership.
[4] Seller is crediting Purchaser to pay remaining costs for Cahill Plumbing to
repair water control devices to comply with City of Evanston Water & Sewer
Department requirements and to address issues raised in August 1, 1998
letter from Water & Sewer Department to Equity Office Properties. This
amount also covers payment of October 1997 amounts incurred by Seller and
visit to property on August 6, 1998.
APPROVED: SELLER APPROVED: PURCHASER
1800 SHERMAN ASSOCIATES PRENTISS PROPERTIES ACQUISITION
an Illinois general partnership PARTNERS, L.P.
a Delaware limited partnership
By: First Capital Income and Growth Fund By: Prentiss Properties I, Inc.,
Series-XII, an Illinois limited a Delaware corporation, its
partnership, a general partner general partner
By: First Capital Financial Corporation,
a Florida corporation, its general partner
By: By:
---------------------------- ------------------------------
By: First Capital Fund Series-XIV,
a Real Estate Limited Partnership,
an Illinois limited partnership,
a general partner
By: First Capital Fund XIV, Inc.
an Illinois corporation, its general partner
By:
----------------------------
<PAGE>
- --------------------------------------------------------------------------------
1800 SHERMAN OFFICE BUILDING
SOURCES AND USES STATEMENT
- --------------------------------------------------------------------------------
<TABLE>
<CAPTION>
PURCHASER'S SOURCES AND USES:
<S> <C> <C>
BALANCE OF CASH TO BE FUNDED BY PURCHASER 13,766,526.19
-------------
ADDITIONAL CASH OUTLAYS BY PURCHASER:
CHICAGO TITLE INSURANCE COMPANY
Title Insurance Policy Endorsements (100%) 975.00
Escrow Fees (50%) 750.00
Deed Recording (100%) 25.00
Holdback Escrow Fee (100%) 500.00
PAYMENT OF RUDNICK & WOLFE 34,300.00
PAYMENT OF PRIME APPRAISAL GROUP, LLC. 3,000.00
---------
PURCHASER'S CLOSING COSTS 39,550.00
-------------
TOTAL CASH OUTLAY BY PURCHASER 13,806,076.19
=============
- --------------------------------------------------------------------------------
SELLER'S SOURCES AND USES:
EARNEST MONEY 250,000.00
CASH AMOUNT DUE TO SELLER 13,766,526.19
-------------
TOTAL SELLER'S SOURCES 14,016,526.19
-------------
ITEMS PAYABLE FROM SELLER'S PROCEEDS AT CLOSING:
CHICAGO TITLE INSURANCE COMPANY
Title Insurance Premium (100%) 5,185.00
Transfer Taxes (100%) 22,200.00
Land Trust Fees (100%) 185.00
Escrow Fees (50%) 750.00
---------
28,320.00
COMMISSION FOR CB COMMERCIAL 333,000.00
HOLDBACK ESCROW TO BE HELD BY CHICAGO TITLE 500,000.00
-------------
TOTAL CASH OUTLAY BY SELLER 861,320.00
BALANCE TO SELLER 13,155,206.19
=============
</TABLE>
<PAGE>
SCHEDULE A
- --------------------------------------------------------------------------------
1800 SHERMAN OFFICE BUILDING
PRO-RATE 1997 PROPERTY TAXES
PRORATION MADE AS OF: 11:59 PM, WEDNESDAY, AUGUST 5, 1998
- --------------------------------------------------------------------------------
<TABLE>
<CAPTION>
<S> <C>
ACTUAL FIRST INSTALLMENT FOR 1997 REAL ESTATE TAXES (PAYABLE 1998)
- ------------------------------------------------------------------
#11-18-119-022-0000 510,034.60
----------
ESTIMATED SECOND INSTALLMENT OF 1997 TAXES (PAYABLE 1998) 550,000.00
PURCHASER'S PRORATA SHARE OF 1997 TAXES 0/365 0.000%
----------
PURCHASER'S SHARE OF 1997 TAXES -
SELLER'S SHARE OF 1997 TAXES 550,000.00
CREDIT DUE TO PURCHASER (SELLER): 550,000.00
==========
</TABLE>
<PAGE>
SCHEDULE B
- --------------------------------------------------------------------------------
1800 SHERMAN OFFICE BUILDING
TENANT PREPAID RENTS
PRORATION MADE AS OF: 11:59 PM, WEDNESDAY, AUGUST 5, 1998
- --------------------------------------------------------------------------------
<TABLE>
<CAPTION>
AMOUNT
SUITE # TENANT NAME PREPAID
- --------------------------------------------------------------------------------
<S> <C> <C>
Prepaid Rent:
110 FEDERAL EXPRESS 89.60
-------
CREDIT TO PURCHASER 89.60
=======
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
SCHEDULE C
- ------------------------------------------------------------------------------------------------------------
1800 SHERMAN OFFICE BUILDING
RECURRING PAYABLES PRORATION
PRORATION MADE AS OF: 11:59 PM, WEDNESDAY, AUGUST 5, 1998
- ------------------------------------------------------------------------------------------------------------
SERVICE CONTRACTS
CREDIT DUE
BILLING PERIOD # of DAYS PURCHASER
VENDOR NAME PAYMENT BEGIN END CREDIT or (SELLER)
- ------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
PAID BY SELLER
Advent Systems, Inc. (705.00) 06/01/98 08/31/98 26 (199.24)
Otis Elevator (2,451.48) 08/01/98 08/31/98 26 (2,056.08)
Rentokil Inc.-Tropical Plant Services (535.62) 08/01/98 08/31/98 26 (449.23)
Smithereen Exterminating Company (198.00) 08/01/98 10/31/98 87 (187.24)
---------
CREDIT DUE TO PURCHASER (SELLER) (2,891.79)
PAYABLE BY PURCHASER
Admiral Security Services 5,136.00 08/01/98 08/31/98 5 828.39
BFI Waste Systems 595.00 08/01/98 08/31/98 5 95.97
The Brickman Group, LTD (Landscaping) 725.00 08/01/98 08/31/98 5 116.94
H-O-H Chemicals, Inc. 78.21 08/01/98 08/31/98 5 12.61
Illinois Recycling Service 272.79 08/01/98 08/31/98 5 44.00
Lakeside Building Maintenance 10,375.46 08/01/98 08/31/98 5 1,673.46
Thomas M. Tully, Ltd. (1997 Tax Appeal) (3) 15,000.00 01/01/98 12/31/98 365 15,000.00
---------
CREDIT DUE TO PURCHASER (SELLER) 17,771.37
UNION DUES AND OTHER AMOUNTS (2)
Union Dues 54.20 08/01/98 08/31/98 5 8.74
Educational Fund For Engineer 200.00 06/01/98 05/31/99 66 36.16
Health and Welfare 400.00 08/01/98 08/31/98 5 64.52
---------
CREDIT DUE TO PURCHASER (SELLER) 109.42
INCOME
Paging Network 750.00 08/01/98 08/31/98 26 629.03
Ameritech (1) 0.00 08/01/98 08/31/98 26 0.00
UPS (1) 0.00 08/01/98 08/31/98 26 0.00
---------
CREDIT DUE TO PURCHASER (SELLER) 629.03
---------
TOTAL CREDIT DUE TO PURCHASER (SELLER) 15,618.03
=========
</TABLE>
(1) No income has been received year to date, therefore no proration as of
closing.
(2) Union pension benefits for engineer are payable hourly. Seller will
calculate and pay such union benefits for the period through closing
directly to union.
(3) 1998 payment to Tully to be paid by purchaser after closing.
<PAGE>
<TABLE>
<CAPTION>
SCHEDULE D
- -----------------------------------------------------------------------------------------------------------------------------------
1800 SHERMAN OFFICE BUILDING
RENTAL CHARGE, DEPOSIT RECONCILIATION, AND DELINQUENCY SCHEDULE
PRORATION MADE AS OF: 11:59 PM, WEDNESDAY, AUGUST 5, 1998
- -----------------------------------------------------------------------------------------------------------------------------------
AUGUST AUGUST AUGUST
TENANT MONTHLY ESCALATION OTHER TOTAL CHARGES
TENANT DEPOSITS (2) RENT CHARGES INCOME CHARGES PAID
- -----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
Academic Counseling 1,572.25 1,891.50 127.34 184.52 2,203.36 2,203.36
Block, Keith M.D. (Ste. 513) -- 3,427.00 241.01 -- 3,668.01 --
Block, Keith M.D. (Ste. 390) -- 6,594.58 135.47 150.00 6,880.05 --
Block, Keith M.D. (Ste. 515) 2,501.15 6,093.08 428.50 614.87 7,136.45 --
Brown, Steven Dr. S.C. -- 7,811.75 523.06 955.00 9,289.81 9,289.81
Cass Communications -- 25,643.33 2,116.35 2,710.73 30,470.41 30,470.41
Center for Women's Health (Ste. 108) 7,345.00 7,676.25 267.94 508.50 8,452.69 --
Disciplined Investment (Ste. 209/211) 4,458.67 13,083.63 458.48 1,200.69 14,742.80 --
Estima 3,157.00 3,681.80 265.27 130.00 4,077.07 --
Evanston Medical Specialists (Ste. 404) -- 6,068.81 1,549.83 858.10 8,476.74 --
Evanston Medical Specialists (Ste. 404A) (1) 4,755.08 3,187.61 738.79 -- 3,926.40 --
Federal Express -- 2,766.88 48.86 -- 2,815.74 2,815.74
Ferguson JH & Associates -- 6,610.19 491.59 195.00 7,296.78 7,296.78
Hodur, James R. D.D.S. 3,658.33 4,368.24 365.27 215.00 4,948.51 4,948.51
Kaffeehaus 1800 (3) 4,500.00 4,815.00 -- 270.34 5,085.34 --
LIM Management, Inc. -- 1,614.58 104.46 65.00 1,784.04 1,784.04
National Equipment Services 2,629.19 2,685.73 56.92 65.00 2,807.65 2,807.65
Olde Discount Corporation 4,628.75 4,628.75 161.38 65.00 4,855.13 4,855.13
Papageorge Hair Salon 1,625.00 2,275.00 36.18 130.00 2,441.18 2,441.18
Price Marketing Group -- 2,515.94 207.85 246.60 2,970.39 2,970.39
Sachs Group -- 34,925.38 2,063.26 1,838.62 38,827.26 --
Shared Technologies 241.67 870.00 -- -- 870.00 870.00
St. Francis Hospital (Ste. 106) -- 4,536.75 158.27 211.25 4,906.27 --
Systat, Inc. 19,034.83 18,705.00 1,847.88 325.00 20,877.88 20,877.88
Tye, Richard -- 4,729.42 147.28 565.50 5,442.20 5,442.20
Winter, Arthur 2,626.75 3,713.63 269.98 -- 3,983.61 3,983.61
Yahav, Jonathan, D.D.S. 1,932.00 2,116.00 186.92 65.00 2,367.92 2,367.92
Yamada & Associates 2,411.92 2,529.00 189.38 65.00 2,783.38 2,783.38
ZS Associates (Ste. 700) -- 46,938.09 3,976.31 1,710.33 52,624.73 52,624.73
ZS Associates (Ste. 400) -- 4,799.50 110.18 -- 4,909.68 4,909.68
ZS Associates (Ste. 401) -- 10,757.81 254.80 390.00 11,402.61 11,402.61
=============================================================================
67,077.59 252,060.23 17,528.81 13,735.05 283,324.09 177,145.01
</TABLE>
<TABLE>
<CAPTION>
- -----------------------------------------------------------------------------------------------------------------------------------
AUGUST
PR'S & PRIOR TOTAL TOTAL
PRORATA BALANCE BALANCE BALANCE SR'S PR'S
TENANT SHARE O/S PRIOR 8/1 OR 8/1 PMTS SHARE O/S SHARE O/S
- -----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
Academic Counseling 1,847.98 -- -- -- -- --
Block, Keith M.D. (Ste. 513) -- 3,668.01 -- 3,668.01 591.61 3,076.40
Block, Keith M.D. (Ste. 390) -- 6,880.05 -- 6,880.05 1,109.69 5,770.36
Block, Keith M.D. (Ste. 515) -- 7,136.45 -- 7,136.45 1,151.04 5,985.41
Brown, Steven Dr. S.C. 7,791.45 -- -- -- -- --
Cass Communications 25,555.83 -- -- -- -- --
Center for Women's Health (Ste. 108) -- 17,070.70 8,618.01 8,452.69 9,981.35 7,089.35
Disciplined Investment (Ste. 209/211) -- 14,756.24 13.44 14,742.80 2,391.31 12,364.93
Estima -- 4,077.07 -- 4,077.07 657.59 3,419.48
Evanston Medical Specialists (Ste. 404) -- 8,751.52 274.78 8,476.74 1,642.00 7,109.52
Evanston Medical Specialists (Ste. 404A) (1) -- 3,926.40 -- 3,926.40 633.90 3,293.11
Federal Express 2,361.59 -- -- -- -- --
Ferguson JH & Associates 6,119.88 -- -- -- -- --
Hodur, James R. D.D.S. 4,150.36 -- -- -- -- --
Kaffeehaus 1800 (3) -- 5,085.34 -- 5,085.34 820.22 4,265.12
LIM Management, Inc. 1,496.29 -- -- -- -- --
National Equipment Services 2,354.80 -- -- -- -- --
Olde Discount Corporation 4,072.04 -- -- -- -- --
Papageorge Hair Salon 2,047.44 -- -- -- -- --
Price Marketing Group 2,491.29 -- -- -- -- --
Sachs Group -- 40,428.15 1,600.89 38,827.26 7,863.35 32,564.80
Shared Technologies 729.68 -- -- -- -- --
St. Francis Hospital (Ste. 106) -- 9,812.54 4,906.27 4,906.27 5,697.60 4,114.94
Systat, Inc. 17,510.48 -- -- -- -- --
Tye, Richard 4,564.43 -- -- -- -- --
Winter, Arthur 3,341.09 -- -- -- -- --
Yahav, Jonathan, D.D.S. 1,986.00 -- -- -- -- --
Yamada & Associates 2,334.45 -- -- -- -- --
ZS Associates (Ste. 700) 44,136.87 -- -- -- -- --
ZS Associates (Ste. 400) 4,117.80 -- -- -- -- --
ZS Associates (Ste. 401) 9,563.48 -- -- -- -- --
=============================================================================
148,573.23 121,592.47 15,413.39 106,179.08 32,539.05 89,053.42
</TABLE>
NOTES:
- ------
(1) Evanston Medical (Ste. 404A) has an installment note payment of $982.48 due
on the first of the month through November 1, 1998 due 100% to seller, seller
will retain such note. Seller has not collected for August, 1998.
(2) Paging Network also has a security deposit of $500.00.
(3) Kaffeehaus 1800 cancelled one space as of 8/1/98, is now only renting two
spaces.
<PAGE>
SCHEDULE E
- -------------------------------------------------------------------------------
1800 SHERMAN OFFICE BUILDING
PARKING TAX-(7/21/98-8/31/98)
PRORATION MADE AS OF: 11:59 PM, WEDNESDAY, AUGUST 5, 1998
<TABLE>
<CAPTION>
- -------------------------------------------------------------------------------------------------
AUGUST TOTAL
PARKING CHARGES BALANCE BALANCE PR'S
TENANT TAX PAID PRIOR 8/1 FOR 8/1 PMTS SHARE O/S
- -------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
Academic Counseling 4.00 4.00 - - -
Block, Keith M.D. (Ste. 513) - - - - -
Block, Keith M.D. (Ste. 390) 30.00 - - 30.00 30.00
Block, Keith M.D.(Ste. 515) 40.00 - - 40.00 40.00
Brown, Steven Dr. S.C. 228.00 228.00 - - -
Cass Communications 100.00 100.00 - - -
Center for Women's Health (Ste. 106) 82.00 - 183.68 82.00 265.68
Disciplined Investment 70.00 - - 70.00 70.00
Estima 8.00 - - 8.00 8.00
Evanston Medical Specialists (Ste. 404) 24.00 - 54.00 24.00 78.00
Evanston Medical Specialists (Ste. 404)(1) - - - - -
Federal Express - - - - -
Ferguson JH & Associates 12.00 12.00 - - -
Hodur, James R. D.D.S. 64.00 64.00 - - -
Kaffeehaus 1800 8.00 - - 8.00 8.00
LIM Management, Inc. 4.00 4.00 - - -
National Equipment Services 4.00 4.00 - - -
Olde Discount Corporation 4.00 4.00 - - -
Paging Network of Illinois - - - - -
Papageorge Hair Salon 8.00 8.00 - - -
Price Marketing Group 8.00 8.00 - - -
Sachs Group 48.00 - - 48.00 48.00
Shared Technologies - - - - -
St. Francis Hospital (Ste. 106) 20.00 - 20.00 20.00 40.00
Systat, Inc. 20.00 20.00 - - -
Tye Richard 44.00 44.00 - - -
Winter, Arthur - - - - -
Yahav, Jonathan, D.D.S. 4.00 4.00 - - -
Yamada & Associates 4.00 4.00 - - -
ZS Associates (Ste. 700) 104.00 104.00 - - -
ZS Associates (Ste. 400) - - - - -
ZS Associates (Ste. 401) 24.00 24.00 - - -
-------------------------------------------------------
966.00 636.00 257.68 330.00 587.68
PARKING TAX COLLECTED 7/21/98-7/31/98 248.00
======
TOTAL 884.00
</TABLE>
<PAGE>
1800 SHERMAN
EVANSTON, ILLINOIS
REAL ESTATE SALE AGREEMENT
--------------------------
THIS REAL ESTATE SALE AGREEMENT (this "Agreement") is made as of the ____
day of July, 1998, by and between AMERICAN NATIONAL BANK AND TRUST COMPANY OF
CHICAGO, NOT PERSONALLY, BUT SOLELY AS TRUSTEE ("Trustee") UNDER TRUST AGREEMENT
DATED MARCH 14, 1991 AND KNOWN AS TRUST NUMBER 113531-09 ("Trust"), 1800 SHERMAN
ASSOCIATES, an Illinois general partnership ("Beneficiary"; Trust and
Beneficiary are collectively referred to herein as "Seller"), and PRENTISS
PROPERTIES ACQUISITION PARTNERS, L.P., a Delaware limited partnership
("Purchaser").
RECITALS
--------
A. The Trust is the owner of record title to that certain parcel of real
estate (the "Real Property") located in Evanston, Illinois, which Real Property
is more particularly described in EXHIBIT A attached hereto and made a part
hereof, and upon which is situated an office building commonly known as 1800
Sherman (the "Office Building").
B. Beneficiary is the sole beneficiary of the Trust.
C. Seller desires to sell to Purchaser, and Purchaser desires to purchase from
Seller, the Property (as such term is defined in Section 1 below), each in
accordance with and subject to the terms and conditions set forth in this
Agreement.
THEREFORE, in consideration of the above Recitals, the mutual covenants and
agreements herein set forth and the benefits to be derived therefrom, and other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Purchaser and Seller agree as follows:
1. PURCHASE AND SALE
-----------------
Subject to and in accordance with the terms and conditions set forth in
this Agreement, Purchaser shall purchase from Seller and Seller shall sell to
Purchaser the Real Property, together with: (a) the Office Building and all
other improvements owned by Seller and located thereon and any and all of
Seller's rights, easements, licenses and privileges presently thereon or
appertaining thereto; (b) Seller's right, title and interest as Landlord in and
to the leases and other agreements permitting the use or occupancy of space at
the Property or any part thereof (excluding Revenue Agreements [as hereinafter
defined]) (individually, a "Lease", and collectively, the "Leases"); (c) the
interest of Seller in all security deposits paid by tenants under the Leases or
by licensees or other parties to the Revenue Agreements that are listed on
EXHIBIT N attached hereto and which are not applied by Seller in accordance with
the terms of the applicable Leases or Revenue Agreements and/or applicable law
between the date of this Agreement and Closing (the "Security Deposits"); (d)
all of the furniture, furnishings, fixtures, equipment, maintenance vehicles,
tools and other tangible personalty located on the Property and used in
connection therewith that are listed on EXHIBIT K attached hereto (the "Tangible
Personal Property"); (e) all right, title and interest of Seller under any and
all of the maintenance, service, leasing, brokerage, advertising, supply,
management, utility, union, employment and other like contracts and agreements
with respect to the ownership and operation of the Property that are listed on
EXHIBIT C attached hereto (collectively, the "Operating Contracts") and the
license and/or lease
1
<PAGE>
agreements permitting the placement of communications-related equipment in, on
or at the Property and/or permitting the placement of drop-off boxes and/or such
other miscellaneous revenue-producing agreements (collectively, the "Revenue
Agreements") that are listed on EXHIBIT C attached hereto (the Operating
Contracts and the Revenue Agreements are collectively referred to herein as the
"Service Contracts"); (f) if and to the extent transferable, all of Seller's
interest, if any, in and to all warranties and guaranties relating to the
Property, if any; (g) if and to the extent transferable, all of Seller's
interest, if any, in and to all plans, specifications and floor plans for the
Office Building located at the Office Building, if any; and (h) if and to the
extent transferable, all of Seller's right, title and interest in and to any
existing intangible property pertaining to the Property (the "Intangible
Personal Property"), including the name "1800 Sherman", but specifically
excluding any intangible property pertaining in any way to the rights associated
with the name "Equity Office" or the name of any entity containing the words
"Equity Office" as a part thereof; all to the extent applicable to the period
from and after the Closing (as such term is defined in Section 4(A) below). The
Real Property, together with items (a) through (h) above, shall be collectively
referred to in this Agreement as the "Property". The term "Property" expressly
excludes: (i) all property owned by tenants or other users or occupants of the
Property (except to the extent that any Security Deposits are deemed to be
"owned" by a tenant under applicable law); (ii) all rights with respect to any
refund of real estate taxes applicable to real estate taxes payable with respect
to 1997 (that is, real estate taxes for 1997 payable in 1998) and prior years
subject, however, to the rights of tenants with respect to same; and (iii) all
computers and computer-related equipment located at the management office of the
Property.
2. PURCHASE PRICE
--------------
The purchase price to be paid by Purchaser to Seller for the Property is
Fourteen Million Eight Hundred Thousand Dollars ($14,800,000) (the "Purchase
Price"). The Purchase Price shall be paid as follows:
A. Earnest Money.
-------------
(i) Prior to the date of this Agreement, Purchaser and Equity Office
Properties Management Corp., a Delaware corporation ("EOPMC"), on behalf of
Seller, entered into that certain letter of intent (the "Letter of Intent")
dated as of May 4, 1998 and accepted by Purchaser on May 6, 1998.
Purchaser, pursuant to the Letter of Intent, has deposited initial earnest
money in the amount of One Hundred Thousand Dollars ($100,000) (the
"Initial Earnest Money") with the Chicago, Illinois office of Chicago Title
and Trust Company (the "Escrowee"). Upon execution of this Agreement,
Purchaser shall deposit additional earnest money in the amount of One
Hundred Fifty Thousand Dollars ($150,000) (the "Additional Earnest Money";
the Initial Earnest Money and the Additional Earnest Money, together with
any interest accrued thereon, net of investment costs, if any, are
collectively referred to herein as the "Earnest Money") with the Escrowee.
To direct the Escrowee as to the retention, investment and disbursement of
the Earnest Money, Purchaser, Seller and Escrowee entered into that certain
joint order escrow agreement (the "Joint Order Escrow Agreement"), a copy
of which is attached hereto as EXHIBIT D. The Earnest Money shall be
invested as Seller and Purchaser so direct pursuant to the terms and
provisions of the Joint Order Escrow Agreement. Any and all interest earned
on the Earnest Money shall be reported to Purchaser's federal tax
identification number.
(ii) If the transaction closes in accordance with the terms of this
Agreement, at Closing, the Earnest Money shall be delivered by Escrowee to
Seller as part payment of the Purchase Price. If the transaction fails to
close due to a default on the part of Purchaser and Seller is not otherwise
in material default hereunder, Seller shall have the remedies provided for
2
<PAGE>
in Section 7(B) below. If the transaction fails to close due to a default
on the part of Seller and Purchaser is not otherwise in material default
hereunder, Purchaser shall have the remedies provided for in Section 7(A)
below. If the transaction fails to close for any other reason other than as
provided in the two (2) preceding sentences, the Earnest Money shall be
delivered by Escrowee to Purchaser.
B. Cash at Closing. At Closing, Purchaser shall pay to Seller, by wire
transferred current federal funds, an amount equal to the Purchase Price,
minus the sum of the Earnest Money which Seller receives at Closing from
the Escrowee, and plus or minus, as the case may require, the closing
prorations and adjustments to be made pursuant to Section 4(C) below.
3. EVIDENCE OF TITLE
-----------------
A. Title Commitment. Seller has, prior to the date of this Agreement,
obtained and caused to be delivered to Purchaser a commitment for an ALTA
Owner's Title Insurance Policy (the "Title Commitment"), order number 1401
007741071 D1, with an effective date of May 26, 1998, in the amount of the
Purchase Price, issued by the Chicago, Illinois office of Chicago Title
Insurance Company (the "Title Insurer"), together with copies of all
underlying documents set forth therein (the "Title Documents"). At Closing,
the conveyance of the Property to Purchaser shall be subject only to those
exceptions to title which are more fully described on attached EXHIBIT B
(the "Existing Permitted Exceptions") and those exceptions to title which
become Permitted Exceptions pursuant to Section 3(C) below (collectively,
the "Permitted Exceptions").
B. Survey. Seller has, prior to the date of this Agreement, obtained and
caused to be delivered to Purchaser an updated survey of the Real Property
prepared by B.H. Suhr & Company, Inc., dated May 15, 1998, Order No. 98-482
(the "Survey"). To the extent not already so certified, the Survey shall be
revised so that it contains a certification in the form of EXHIBIT V
attached hereto.
C. Review of Title Commitment and Survey. Purchaser has reviewed the pro
forma title policy (the "Pro Forma") dated June 25, 1998 derived from the
Title Commitment and has reviewed the Survey; the matters disclosed therein
comprise the Existing Permitted Exceptions. If any additional exceptions to
title other than the Existing Permitted Exceptions (such exceptions to
title being referred to herein as the "New Disclosed Exceptions") arise
between the date of the Title Commitment, the Survey and the Closing,
Purchaser shall have five (5) business days after its receipt of notice of
same within which to notify Seller of any such New Disclosed Exceptions to
which Purchaser objects. Any such New Disclosed Exceptions not objected to
by Purchaser as aforesaid shall become "Permitted Exceptions" hereunder. If
Purchaser objects to any such New Disclosed Exceptions, Seller shall have
until Closing (but in any event at least twenty [20] days after it receives
notice of Purchaser's objection(s)) to remove such New Disclosed
Exceptions, which removal may be accomplished by waiver or endorsement by
the Title Insurer reasonably acceptable to Purchaser. If Seller fails to
remove any such New Disclosed Exceptions as aforesaid, Purchaser may, as
its sole and exclusive remedy (subject, however, to Section 7(A)(ii)
below), terminate this Agreement and obtain a return of the Earnest Money.
If Purchaser does not elect to terminate this Agreement, Purchaser shall
consummate the Closing and accept title to the Property subject to all such
New Disclosed Exceptions (in which event, all such New Disclosed
Exceptions, together with the Existing Permitted Exceptions, shall be
deemed "Permitted Exceptions" hereunder).
3
<PAGE>
4. CLOSING
-------
A. Closing Date. The "Closing" of the transaction contemplated by this
Agreement (that is, the payment of the Purchase Price, the transfer of
title to the Property, and the satisfaction of all other terms and
conditions of this Agreement) shall occur on August 6, 1998, at the office
of the Escrowee (in person and/or by telecopy and/or overnight courier) or
at such other time and place as Seller and Purchaser shall agree in
writing. The "Closing Date" shall be the date of Closing. If the date for
Closing above provided for falls on a Saturday, Sunday or legal holiday,
then the Closing Date shall be the next business day.
B. Closing Documents and Deliveries.
--------------------------------
(i) Seller. At Closing, Seller shall deliver to Purchaser the
following:
(a) a trustee's deed (the "Deed"), subject only to the Permitted
Exceptions;
(b) a limited warranty bill of sale (the "Bill of Sale") in the
form attached hereto as EXHIBIT J;
(c) a letter advising tenants under the Leases of the change in
ownership of the Property in the form of EXHIBIT L attached hereto;
(d) a letter advising vendors under the Service Contracts of the
change in ownership of the Property in the form of EXHIBIT M attached
hereto;
(e) four (4) counterparts of an assignment and assumption of the
Leases and Security Deposits in the form of EXHIBIT E attached hereto
(the "Lease Assignment"), executed by Seller;
(f) four (4) counterparts of an assignment and assumption of the
Service Contracts in the form of EXHIBIT F attached hereto (the
"Service Contract Assignment"), executed by Seller;
(g) an affidavit stating, under penalty of perjury, Seller's
U.S. taxpayer identification number and that Seller is not a foreign
person within the meaning of Section 1445 of the Internal Revenue
Code;
(h) four (4) counterparts of a closing statement (the "Closing
Statement") to be executed by Seller and Purchaser, containing the
Closing Delinquency Schedule (as defined in Section 4(C)(i)(b) below)
and setting forth the prorations and adjustments to the Purchase Price
as required by Section 4(C) below, executed by Seller;
(i) all executed Estoppel Certificates (as defined in Section
8(B)(i) below) received by Seller as of the Closing Date to the extent
not previously delivered to Purchaser or its counsel;
(j) four (4) counterparts of a letter with respect to Seller's
delivery of information required under 29 C.F.R.
(S)1910.1001(j)(2)(ii) and 29 C.F.R. (S)1926.1101(n)(6) (the "OSHA
Letter") in the form of EXHIBIT O attached hereto, executed by Seller;
4
<PAGE>
(k) four (4) counterparts of a Quit Claim Assignment of Permits
and General Intangibles (the "Permit Assignment") in the form of
EXHIBIT R attached hereto;
(l) any transfer tax declaration, real property conveyance
statement or similar document (the "Transfer Tax Declarations") that
Seller is required by law to execute in order to record the Deed with
the Cook County, Illinois recorder, executed by Seller;
(m) a certification of Seller (the "Closing Certification")
updating the representations of Seller set forth in Section 9(A) below
to reflect any changes in any of such representations since the
effective date of such representations which would make such
representations untrue or incorrect in any material respect as of the
Closing Date, including an update of the Rent Roll (as defined in
Section 9(A)(v) below) (Purchaser hereby acknowledging that: (1)
Seller shall have no liability with respect to the information set
forth in such Closing Certification to the extent that such
information is set forth in an Estoppel Certificate received by
Purchaser, and (2) as more particularly provided in Section 9(C)
below, Seller's liability under such Closing Certification shall
terminate on a date no later than the two hundred seventieth (270th)
day after the Closing Date);
(n) to the extent located at the Property or otherwise in
Seller's possession, original counterparts of each of the Leases;
(o) copies of those Leases for which either (1) original Leases
were not delivered as provided in Section 4(B)(i)(n) above, or (2)
Estoppel Certificates were not received by Seller or Purchaser prior
to the Closing Date, certified by Seller to be true and correct
(Purchaser hereby acknowledging that, as more particularly provided in
Section 9(C) below, Seller's liability under such certifications shall
terminate on a date no later than the two hundred seventieth (270th)
day after the Closing Date);
(p) to the extent located at the Property or otherwise in
Seller's possession, original counterparts of each of the Service
Contracts;
(q) to the extent located at the Property, keys and as-built
plans for the Property;
(r) to the extent located at the Property, copies of
correspondence to or from parties to the Service Contracts and
correspondence to or from tenants under the Leases;
(s) three (3) counterparts of the Post-Closing Escrow Agreement
(defined in Section 10(P) below), executed by Seller; and
(t) a copy of the general ledger with respect to the Building
from January 1, 1998 through June 30, 1998 prepared by EOPMC
(Purchaser hereby acknowledging that Seller shall not be deemed to
have made any representations, warranties or other statements with
respect to such general ledger and shall have no liability to
Purchaser with respect thereto and Purchaser shall not be entitled to
rely thereon or provide copies of such general ledger to other parties
without Seller's express written consent).
5
<PAGE>
(ii) Purchaser. Purchaser shall deliver or cause to be delivered to
Seller at Closing:
(a) the funds required pursuant to Section 2(B) above;
(b) four (4) counterparts of the Lease Assignment, executed by
Purchaser;
(c) four (4) counterparts of the Service Contract Assignment,
executed by Purchaser;
(d) four (4) counterparts of the Closing Statement, executed by
Purchaser;
(e) copies of any executed Estoppel Certificates received by
Purchaser as of the Closing Date, if any;
(f) four (4) counterparts of the OSHA Letter, executed by
Purchaser;
(g) four (4) counterparts of the Permit Assignment, executed by
Purchaser;
(h) the Transfer Tax Declarations, executed by Purchaser; and
(i) three (3) counterparts of the Post-Closing Escrow Agreement,
executed by Purchaser.
C. Closing Prorations and Adjustments.
----------------------------------
(i) General. The following items are to be prorated or adjusted (as
appropriate) as of the Closing Date, it being understood that for purposes
of prorations and adjustments, Purchaser shall be deemed the owner of the
Property as of the Closing Date and Seller shall be deemed the owner of the
Property as of the day prior to the Closing Date; provided, however, that
in the event that Escrowee receives the net closing funds from Purchaser
after 11 AM (Chicago, Illinois time) on the Closing Date and, as a result
of Escrowee receiving such funds after such time Seller is unable to invest
the net proceeds from the transaction with Seller's bank or the closing
escrowee on the Closing Date, then, for purposes of prorations and
adjustments, Seller shall be deemed the owner of the Property as of the
Closing Date and Purchaser shall be deemed the owner of the Property as of
the day after the Closing Date:
(a) Intentionally Omitted;
(b) the "minimum" or "base" rent payable by tenants under the
Leases ("Base Rent"); provided, however, that rent and all other sums
which are due and payable to Seller by any tenant but uncollected as
of the Closing shall not be adjusted, but Purchaser shall cause the
rent and other sums for the period prior to Closing to be remitted to
Seller if, as and when collected, but only after such rents are first
applied towards any unpaid rents first becoming due and payable
subsequent to the Closing Date. At Closing, the Closing Statement
shall contain a schedule (the "Closing Delinquency Schedule") of all
such past due but uncollected rent and other sums owed by tenants (the
"Past Due Rents"). Purchaser shall include the amount of the Past Due
Rents in the first bills thereafter submitted to the tenants in
question after the Closing and shall continue to do so for six (6)
months thereafter. Purchaser shall promptly deliver to Seller a copy
of each such bill submitted to tenants. Purchaser shall promptly remit
to Seller any such Past Due Rents paid by tenants set forth on the
Closing
6
<PAGE>
Delinquency Schedule, but only if a deficiency in the then current
rent is not thereby created. To the extent not set forth on the
Closing Delinquency Schedule, percentage rent shall be prorated as
follows: upon receipt by Purchaser, Purchaser shall furnish to Seller
copies of all sales reports from tenants relative thereto, including,
without limitation, all sales reports with respect to any tenants
whose lease years have expired as of the Closing but whose sales
reports were not available on Closing and sales reports of any tenants
whose lease year expires after Closing, and the amount of any rents
(including, without limitation, percentage or overage rents and
Tenants Reimbursements) to be paid by any tenant shall be made in
accordance with such tenant's Lease as now existing (Purchaser hereby
covenanting and agreeing not to modify the Leases after Closing to
change the date and/or method for payment of such amounts with respect
to the period prior to Closing until after the occurrence of the
reprorations described in Section 4(C)(ii) below) and Purchaser shall,
after Closing and prior to the occurrence of the reprorations
described in Section 4(C)(ii) below, promptly pay to Seller a prorata
portion of such rents, based upon apportionment being made as of the
Closing Date, promptly after the date when such rents are received
from the tenant;
(c) with respect to tenant improvement costs and/or allowances
or leasing commissions relating to any new leases, or any
modification, amendment, restatement or renewal of existing Leases
(each, a "New Lease", and collectively, the "New Leases") as set forth
in a New Lease Notice (defined in Section 10(L)(1) below) executed
between the date of this Agreement and Closing with the consent of
Purchaser granted (or deemed to be granted) in accordance with Section
10(L)(1) below, Seller and Purchaser agree that such costs, allowances
and leasing commissions shall be prorated over the initial term of any
such New Lease with Seller being responsible for a portion of such
costs, allowances and leasing commissions based on the ratio of Base
Rent payments received by Seller through the Closing Date to the total
Base Rent payable over the initial term of the particular New Lease
and, in the event that Seller has paid such costs, allowances and/or
leasing commissions prior to Closing, Purchaser shall reimburse Seller
at Closing for the amount of any such costs, allowances and/or leasing
commissions paid by Seller, based on the above-described proration
and, in the event Seller has not paid such costs, allowances and/or
leasing commissions prior to Closing, Purchaser shall be responsible
for payment of all such costs, allowances and leasing commissions
after Closing;
(d) with respect to the tenant improvement costs and/or
allowances or leasing commissions set forth on EXHIBIT S and EXHIBIT T
attached hereto relating to the Leases set forth on EXHIBIT S and
EXHIBIT T attached hereto, Seller and Purchaser agree that Purchaser
shall be responsible for all such costs, allowances and leasing
commissions and: (1) in the event that Seller has, prior to Closing,
paid a portion of such costs, allowances and/or leasing commissions,
Purchaser shall reimburse Seller at Closing for the amount of any such
costs, allowances and/or leasing commissions paid by Seller prior to
Closing; and (2) in the event that Seller has not, prior to Closing,
paid any such costs, allowances and/or leasing commissions, Purchaser
shall be responsible after Closing for payment of all unpaid amounts
to the proper recipients thereof;
(e) the amount of the Security Deposits, if any, with Purchaser
receiving a credit at Closing against the Purchase Price in the amount
of such Security Deposits;
(f) water, sewer, electric, telephone and all other utility and
fuel charges, fees and use charges, fuel on hand (at cost plus sales
tax), and any deposits with utility
7
<PAGE>
companies (to the extent possible, utility prorations will be handled
by meter readings on the day immediately preceding the Closing Date);
(g) amounts paid or payable under the Service Contracts;
(h) assignable license and permit fees, if any;
(i) salary, vacation, sick pay and/or all other amounts paid or
payable under the Union Contract, the New Global Union Contract or the
new union contract (as such terms are defined in Section 10(Z) below),
as applicable; and
(j) other similar items and expenses of operation (excluding
real estate taxes).
(ii) Tenant Reimbursements Other Than Real Estate Taxes.
Notwithstanding the foregoing and subject to Sections 4(C)(ii)(a), 4(C)(iv)
and 4(C)(v) below, at Closing, Seller shall be entitled to retain amounts
paid by tenants for reimbursement of common area maintenance, mall
maintenance, utility charges, water and sewer charges, insurance and
merchant's association dues and assessments and all other charges to or
contributions by tenants under the Leases other than Base Rent, percentage
rent and real estate taxes and assessments (such assessments, costs,
expenses, dues and charges being referred to herein as the "Tenant
Reimbursable Expenses", and the amounts payable by tenants under the Leases
with respect to the Tenant Reimbursable Expenses being referred to herein
as the "Tenant Reimbursements") as of the Closing.
(a) All Tenant Reimbursements with respect to the month in which
the Closing Date occurs which are received by Seller prior to or on
the Closing Date shall be prorated at Closing as between Seller and
Purchaser based on the number of days in the month with Purchaser
receiving a credit against the Purchase Price for a proportionate
share of such Tenant Reimbursements, based on the number of days of
each party's ownership. Such credit shall be subject to reproration as
provided in Section 4(C)(iv) below. In addition, in the event that
Seller receives, prior to or on the Closing Date, prepayments of
Tenant Reimbursements expressly designated by the tenant as applicable
to the month after Closing or any period thereafter and such tenant
does not owe any Past Due Rents, Purchaser shall receive a credit
against the Purchase Price for such Tenant Reimbursements, subject,
however, to the reproration provided for in Section 4(C)(iv) below. If
such tenant owes Past Due Rents, such Tenant Reimbursements shall
first be applied against Past Due Rents, with any remaining amounts
being credited against the Purchase Price at Closing, subject,
however, to the reproration provided in Section 4(C)(iv) below. Any
Tenant Reimbursements received by Purchaser on or after the Closing
Date shall be retained by Purchaser until the post-Closing adjustments
provided for in Section 4(C)(iv) below.
(iii) Real Estate Taxes. Notwithstanding anything herein to the
contrary, real estate taxes and assessments and amounts paid by tenants for
reimbursement of real estate taxes and assessments ("Real Estate Tax
Reimbursements") shall be addressed as follows:
(a) Proration of Real Estate Tax Expense.
------------------------------------
(1) Second Installment of 1997 Real Estate Taxes.
Purchaser shall be responsible for payment of the second
installment of 1997 real estate taxes
8
<PAGE>
(payable in 1998) for the Property. At Closing, Purchaser shall
receive a credit against the Purchase Price in the amount of Five
Hundred Fifty Thousand Dollars ($550,000.00) with respect to the
second installment of 1997 real estate taxes for the Property
(payable in 1998). Such credit shall not be subject to proration
at or after Closing.
(2) 1998 Real Estate Taxes. After Closing, Purchaser shall
be responsible for payment of all 1998 real estate taxes for the
Property (payable in 1999). 1998 real estate taxes shall not be
subject to proration at or after Closing.
(b) Seller to Retain All Real Estate Tax Reimbursements for
Periods Prior to Month of Closing. Notwithstanding any provision of
this Agreement to the contrary and subject to any refunding of same to
tenants required in connection with the appeal of real estate taxes
with respect to 1997 and prior years, Seller shall be entitled to
retain all Real Estate Tax Reimbursements paid by tenants as of
Closing with respect to all periods prior to the month in which the
Closing Date occurs.
(c) Real Estate Tax Reimbursements for Month of Closing. All
Real Estate Tax Reimbursements with respect to the month in which the
Closing Date occurs which are received by Seller prior to or on the
Closing Date shall be prorated at Closing as between Seller and
Purchaser based on the number of days in the month with Purchaser
receiving a credit against the Purchase Price based on the number of
days in the month with Purchaser receiving a credit against the
Purchase Price for a proportionate share of such Real Estate Tax
Reimbursements, based on the number of days of each party's ownership.
Such credit shall not be subject to reproration. In addition, in the
event that Seller receives, prior to or on the Closing Date,
prepayments of Real Estate Tax Reimbursements expressly designated by
the tenant as applicable to the month after Closing or any period
thereafter and such tenant does not owe any Past Due Rents, Purchaser
shall receive a credit against the Purchase Price for such Real Estate
Tax Reimbursements. If such tenant owes Past Due Rents, such Real
Estate Tax Reimbursements shall first be applied against Past Due
Rents, with any remaining amounts being credited against the Purchase
Price. In the event that Purchaser receives any Real Estate Tax
Reimbursements on or after the Closing Date, and such amounts are with
respect to the month in which the Closing Date occurs, Purchaser shall
remit Seller's proportionate share of such Real Estate Tax
Reimbursements, calculated as provided above, to Seller upon the
reconciliation described in Section 4(C)(iv) below.
(d) Purchaser to Retain All Real Estate Tax Reimbursements for
Periods After the Month of Closing. Purchaser shall be entitled to
retain all Real Estate Tax Reimbursements paid by tenants after
Closing with respect to all periods after the month in which the
Closing Date occurs. Purchaser shall be responsible for reconciling
with tenants for all Real Estate Tax Reimbursements paid by tenants
during 1998 and subsequent years and refunding any overpayments by
tenants of such amounts (whether paid to Seller or Purchaser).
Purchaser agrees to indemnify, defend and hold Seller, EOPMC and their
respective partners, shareholders, officers, directors, employees and
affiliates harmless of, from and against any and all claims, demands,
suits and causes of actions by tenants with respect to Real Estate Tax
Reimbursements paid by tenants during 1998 and subsequent years
including, without limitation, Purchaser's failure to refund any
overpayments by tenants as provided in the previous sentence.
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(iv) Post-Closing Reprorations.
-------------------------
(a) General. As soon as practical after Closing, but in no
event later than May 31, 1999, Seller and Purchaser shall, with
respect to any amounts prorated or adjusted at Closing pursuant to
Section 4(C)(i) above based on estimates or formulae, as applicable,
jointly determine and reapportion such amounts in accordance with
Section 4(C)(i) above upon determination of the actual costs or
expenses with respect thereto. In the event that amounts (other than
Tenant Reimburseable Expenses and related Tenant Reimbursements)
credited to Purchaser by Seller at Closing exceeds the amount of the
credit that Purchaser should have received had such actual amounts
been available at Closing, Purchaser shall promptly remit such excess
amount to Seller. In the event that amounts (other than Tenant
Reimburseable Expenses and related Tenant Reimbursements) credited to
Seller by Purchaser at Closing exceeds the amount of the credit that
Seller should have received at Closing had such actual amounts been
available at Closing, Seller shall promptly remit such excess amount
to Purchaser.
(b) Tenant Reimbursements; Tenant Reimbursable Expenses.
Seller's allocable share of Tenant Reimbursements for Leases in effect
as of the Closing Date shall be determined by multiplying the total
payments due from tenants for the 1998 calendar year (that is, the sum
of estimated payments plus or minus year-end adjustments) by a
fraction, the numerator of which is the actual Tenant Reimburseable
Expenses paid by Seller (whether by direct payment by Seller or by
proration as provided in Section 4(C)(i) above), and the denominator
of which is the total Tenant Reimburseable Expenses for calendar year
1998. In the event that, after such determination: (1) the amount of
Tenant Reimbursements retained by Seller as provided in Section
4(C)(ii) above is less than the amount of Tenant Reimburseable
Expenses paid by Seller (whether by direct payment by Seller or by
proration as provided in Section 4(C)(i) above) with respect to 1998
and the landlord under the Leases is entitled to recover such
difference under the terms of Leases, then (y) to the extent that the
Tenant Reimbursements collected by Purchaser for 1998 exceeds the
Tenant Reimbursable Expenses incurred by Purchaser for 1998, Purchaser
shall promptly remit to Seller its excess collections to the extent
that the Tenant Reimbursements retained by Seller are less than the
Tenant Reimbursable Expenses paid by Seller, and (z) Purchaser shall
bill such tenants for any remaining amounts owed to Seller after any
payment provided for in sub-clause (y) of this sentence, provide
Seller with copies of such bills upon issuance, and collect such
amounts on behalf of Seller and, upon receipt, remit such collected
amounts to Seller (it being understood that, in the event that the
tenant remits such amounts to Purchaser without specification as to
the period to which such amounts are applicable, Purchaser shall be
permitted to apply such amounts to any 1998 Tenant Reimbursements owed
to Purchaser with the remainder, if any, being paid to Seller); and
(2) the amount of Tenant Reimbursements collected by Seller for 1998
and retained by Seller as provided in Section 4(C)(ii) above exceeds
the amount of Tenant Reimburseable Expenses paid by Seller (whether by
direct payment by Seller or by proration as provided in Section
4(C)(i) above) with respect to 1998 then, to the extent Purchaser
incurred Tenant Reimbursable Expenses in 1998 in excess of Tenant
Reimbursements collected by Purchaser for 1998, Seller shall promptly
remit to Purchaser its excess collections and, thereafter, to the
extent required under the terms of the Leases, Seller shall promptly
remit any remaining excess amounts to the applicable tenants; provided
that, if any such excess amounts are otherwise payable to tenants
owing Past Due Rents, prior to remitting any remaining amounts to such
tenants, Seller may offset the amounts due to such tenants against
Past Due Rents owing to Seller and
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remitting any remaining amounts to Purchaser to be applied against
past due rents owed Purchaser with any remaining amounts to be
remitted by Purchaser to such tenants.
(v) Seller has Reconciled 1997 Tenant Reimbursable Expenses and
Tenant Reimbursements. Seller has, prior to the date of this Agreement,
calculated: (1) the actual Tenant Reimbursements and Tenant Reimbursable
Expenses for the calendar year 1997; and (2) the actual real estate taxes
paid in 1997 as well as the Real Estate Tax Reimbursements paid in 1997,
and reconciled such items with tenants. Seller agrees to indemnify, defend
and hold Purchaser, its general partner, and their respective partners,
shareholders, officers, directors, employees and affiliates harmless of,
from and against any and all claims, demands, suits and causes of actions
by tenants with respect to Seller's failure to refund any overpayments by
tenants in connection with the reconciliations described in the previous
sentence.
(vi) Past Due Rents. If Seller has not received all Past Due Rents
or other amounts owed to it by tenants within sixty (60) days after the
Closing Date or within sixty (60) days after such other amounts may be due,
Seller at its sole cost and expense, shall be entitled at any time within
the twelve (12) month period after the applicable sixty (60) day period, to
commence such actions or proceedings not affecting possession or enforcing
landlord's liens or resulting in termination of the Lease in question as
Seller shall desire to collect any such Past Due Rents or other amounts,
and Purchaser shall cooperate with Seller in any such action, provided that
Purchaser shall not be obligated to expend any amounts in connection
therewith.
(vii) Tax Appeals Prior Tax Years. Prior to the date hereof, Seller
filed an appeal of the assessed value(s) of the Property with respect to
the tax and/or calendar years set forth in items 1 and 2 on EXHIBIT U
attached hereto and requesting a corresponding reduction in real estate
taxes payable with respect to such tax and/or calendar year(s). In
addition, after Closing and upon issuance of the final bill for calendar
year 1997, Seller may file an appeal of the assessed value of the Property
with respect to calendar year 1997 and a request for a corresponding
reduction in real estate taxes payable with respect to calendar year 1997.
Purchaser and Seller hereby agree that: (1) Seller may, after Closing, if
it so elects, initiate and/or continue to pursue and control the real
estate tax appeal and reduction process with respect to the tax and/or
calendar year(s) set forth on EXHIBIT U attached hereto and shall have the
right to engage counsel, consultants, expert witnesses and appraisers as
Seller shall reasonably determine to be necessary to such appeal and
Purchaser shall cooperate (and cause its counsel to cooperate) with Seller
with respect to such process at no cost to Purchaser; and (2) Seller shall
be responsible for the cost of any counsel, consultant, expert witness or
appraiser employed by Seller to obtain any reduction of real estate taxes
for such tax and/or calendar year(s). In the event that any refunds of
taxes applicable to any period prior to the Closing Date have not been
received by Seller as of the Closing, Seller shall retain all rights with
respect to any refund of such taxes, subject to the rights of tenants under
Leases.
(viii) Provision of Information for 1998 Real Estate Tax Reassessment.
Seller, prior to the date hereof, has received requests from the Cook
County Assessor (the "Assessor") that Seller provide certain information to
the Assessor to assist the Assessor in its reassessment of the Property for
real estate taxes payable with respect to 1998 and subsequent years. Such
requests include a request for the submission of certain information
including, without limitation, an appraisal of the Property. In response to
such requests, prior to the date of this Agreement, Seller's counsel,
Thomas M. Tully & Associates ("Tully"), has submitted certain items and
filed certain documents, copies of which are attached hereto as EXHIBIT Y.
Seller and Purchaser shall reasonably cooperate with each other to submit
any other requested information and appraisals prior to Closing. In
connection therewith, Purchaser agrees that, upon Closing or sooner
termination of this Agreement, it shall be responsible for all costs and
expenses incurred to comply with such requests and, in the event that
Seller has paid any such amounts prior to Closing or
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sooner termination of this Agreement, Purchaser shall promptly remit such
amounts to Seller (in the event that the Closing occurs, such remittance
may be accomplished by Seller receiving a credit at Closing from
Purchaser); provided, however, that in the event that the Closing does not
occur and Seller elects (as determined in Seller's sole and exclusive
discretion) to use the appraisals or other information prepared in
connection with the foregoing, Seller shall be obligated to pay the cost of
preparation of such information (to be paid by Seller directly to the
vendor or reimbursed to Purchaser promptly after termination of this
Agreement). In connection with such submission, Purchaser acknowledges that
the real estate tax counsel to be used shall be Tully (and, as provided in
the Service Contract Assignment, Purchaser shall assume all obligations of
Seller under the Service Contract with Tully). In the event that the
Closing occurs, Purchaser shall indemnify, defend and hold Seller, EOPMC,
Equity Group Investments, Inc., and their respective partners,
shareholders, officers, directors, employees and affiliates harmless of,
from and against any and all claims, demands, suits causes of action,
penalties, sanctions, losses, costs and expenses arising out of, in
connection with or related to the submissions described and provided for
herein.
(ix) Miscellaneous; Survival. For purposes of this Section 4(C), the
amount of any expense credited by one party to the other shall be deemed an
expense paid by that party. The terms and provisions of this Section 4(C)
shall survive the Closing and delivery of the Deed.
D. Transaction Costs. Seller shall be responsible for and shall pay (i)
the cost to prepare Survey, (ii) the State of Illinois, Cook County and
City of Evanston transfer taxes and/or documentary stamps (the "Transfer
Taxes") owed in connection with the Deed (and Seller and Purchaser shall
timely execute and deliver such forms and returns as are necessary in
connection therewith), and (iii) the base premium for the owner's title
insurance policy to be issued to Purchaser at Closing (the "Title Policy").
Purchaser shall be responsible and pay for (1) any premiums for any
lender's title insurance policy and all costs of any and all endorsements
to the Title Policy and/or any lender's title insurance policy, and (2) all
recording charges for recording the Deed. Seller and Purchaser shall each
pay one-half (1/2) of all escrow fees, whether or not the Closing occurs.
In addition, Purchaser and Seller shall each be responsible for the fees of
their respective attorneys.
E. Possession. Upon Closing, Seller shall deliver to Purchaser possession
of the Property, subject only to the Permitted Exceptions.
5. CASUALTY LOSS AND CONDEMNATION
------------------------------
If, prior to Closing, the Property or any part thereof shall be taken by
eminent domain or condemned, or destroyed or damaged by fire or other casualty,
Seller shall promptly so notify Purchaser. In the event that either: (i) the
reasonable cost to restore the Property due to such damage or destruction is
greater than Five Hundred Thousand Dollars ($500,000) (a "Material Casualty"),
or (ii) any portion of the Property is taken or condemned (a "Material
Condemnation"), then Purchaser shall have the option to terminate this Agreement
by delivery of its written termination notice to Seller within thirty (30) days
of Seller's written notice thereof. If (a) the aforementioned casualty is not a
Material Casualty, (b) the aforementioned taking or condemnation is not a
Material Condemnation, or (c) Purchaser does not elect to terminate this
Agreement pursuant to the provisions of the preceding sentence (time being of
the essence with respect to any such election), then Seller and Purchaser shall
consummate the transaction contemplated by this Agreement without abatement of
the Purchase Price and Purchaser shall
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<PAGE>
be entitled during the period following the Inspection Period and prior to
Closing to approve the terms of any property insurance settlement, such approval
not to be unreasonably withheld or delayed, and to receive at Closing the
taking, condemnation or property insurance proceeds (or an assignment of the
right to such proceeds) (less any amounts applied against insured costs incurred
or insured income lost by Seller as a result of such occurrence) plus a credit
against the Purchase Price in the amount of any uninsured loss (as to property
only) and any deductible payable by Seller under applicable property insurance,
and Seller shall, at Closing, execute and deliver to Purchaser all customary
proofs of loss, assignments of claims and other similar items. If Purchaser
elects to terminate this Agreement pursuant to the provisions of this Section 5
and Purchaser is not in default under this Agreement, the Earnest Money shall be
returned to Purchaser by the Escrowee, in which event this Agreement shall,
without further action of the parties, become null and void and neither party
shall have any further rights or obligations under this Agreement except those
rights and obligations which expressly survive termination of this Agreement as
provided herein and Seller's rights under the Confidentiality Agreement (as
defined in Section 8(A) below).
6. BROKERAGE
---------
Seller, pursuant to a separate written agreement (the "Broker Agreement"),
is obligated to pay upon Closing (but not otherwise) a brokerage commission to
CB Commercial Real Estate Group, Inc. ("Broker") for services rendered in
connection with the sale and purchase of the Property. Seller shall indemnify
and hold Purchaser harmless from and against any and all claims of Broker
related to Seller's agreement under the Broker Agreement to pay Broker a
commission in connection with the purchase and sale of the Property, including,
without limitation, reasonable attorneys' fees and expenses incurred by
Purchaser in connection with such claim. Purchaser represents and warrants to
Seller that Purchaser does not have any agreement with any broker or finder in
connection with the Property. Seller and Purchaser shall each indemnify and hold
the other harmless from and against any and all claims of all brokers and
finders (other than a claim by Broker against Seller of the type described in
the first sentence of this Section 6, which claim Seller shall be obligated to
indemnify Purchaser against in accordance with the preceding sentence) claiming
by, through or under the indemnifying party and in any way related to the sale
and purchase of the Property, this Agreement or otherwise, including, without
limitation, reasonable attorneys' fees and expenses incurred by the indemnified
party in connection with such claim. The provisions of this Section 6 shall
survive the Closing and delivery of the Deed or sooner termination of this
Agreement.
7. DEFAULT AND REMEDIES
--------------------
A. Seller Default.
--------------
(i) Notwithstanding anything to the contrary contained in this
Agreement, if (1) Seller fails to perform in accordance with the terms of
this Agreement in any material respect, (2) Purchaser is not otherwise in
material default hereunder, and (3) the Closing does not occur, then, as
Purchaser's sole and exclusive remedy hereunder and at Purchaser's option,
either (x) the Earnest Money shall be returned to Purchaser, in which event
this Agreement shall be null and void, and neither party shall have any
rights or obligations under this Agreement except as provided in Section
7(A)(ii) below, or (y) upon notice to Seller not less than fifteen (15)
days thereafter, and provided an action is filed within thirty (30) days
thereafter, Purchaser may seek specific performance of this Agreement, but
not damages. Purchaser's failure to seek specific performance as aforesaid
shall constitute its election to proceed under clause (x) above.
(ii) In the event that Seller has, prior to Closing, sold, conveyed or
encumbered the Property in violation of this Agreement and this Agreement
has not theretofore been terminated
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in accordance with any provision of this Agreement and, as a result of such
sale and conveyance, it is not possible that specific performance can
occur, or in the event of an intentional, willful and bad faith material
breach by Seller of the terms of this Agreement that is not cured within
ten (10) days after written notice of such breach by Purchaser to Seller,
and Purchaser is not otherwise in material default hereunder, Purchaser
shall be entitled to terminate this Agreement and pursue a claim against
Seller due to Seller's failure to perform in accordance with the terms of
this Agreement as a result of such breach, such claim for damages to be for
reimbursement of an amount equal to the lesser of (1) Purchaser's actual,
out-of-pocket expenses incurred in connection with its proposed purchase of
the Property as contemplated in this Agreement, and (2) Twenty Five
Thousand Dollars ($25,000). In addition, in the event that Purchaser files
suit to pursue such claim and Purchaser is the prevailing party after
issuance of a final, non-appealable order of a court of competent
jurisdiction, Purchaser shall be entitled to recover its reasonable costs
and expenses incurred by Purchaser to file such suit.
B. Purchaser Default. If (i) Purchaser fails to perform in accordance
with the terms of this Agreement in any material respect, (ii) Seller is
not in material default hereunder, and (iii) the Closing does not occur,
the Earnest Money shall be retained by Seller as liquidated and agreed upon
damages and as Seller's sole and exclusive remedy with respect thereto
other than those rights that survive a termination of this Agreement as
provided herein and Seller's rights under the Confidentiality Agreement.
PURCHASER AND SELLER ACKNOWLEDGE AND AGREE THAT (1) THE EARNEST MONEY IS A
REASONABLE ESTIMATE OF AND BEARS A REASONABLE RELATIONSHIP TO THE DAMAGES
THAT WOULD BE SUFFERED AND COSTS INCURRED BY SELLER AS A RESULT OF HAVING
WITHDRAWN THE PROPERTY FROM SALE AND THE FAILURE OF CLOSING TO OCCUR DUE TO
A DEFAULT OF PURCHASER UNDER THIS AGREEMENT; (2) THE ACTUAL DAMAGES
SUFFERED AND COSTS INCURRED BY SELLER AS A RESULT OF SUCH WITHDRAWAL AND
FAILURE TO CLOSE DUE TO A DEFAULT OF PURCHASER UNDER THIS AGREEMENT WOULD
BE EXTREMELY DIFFICULT AND IMPRACTICAL TO DETERMINE; (3) PURCHASER SEEKS TO
LIMIT ITS LIABILITY UNDER THIS AGREEMENT TO THE AMOUNT OF THE EARNEST MONEY
IN THE EVENT THIS AGREEMENT IS TERMINATED AND THE TRANSACTION CONTEMPLATED
BY THIS AGREEMENT DOES NOT CLOSE DUE TO A DEFAULT OF PURCHASER UNDER THIS
AGREEMENT; AND (4) THE EARNEST MONEY SHALL BE AND CONSTITUTE VALID
LIQUIDATED DAMAGES.
PURCHASER INITIALS: SELLER INITIALS:
___________________ ___________________
C. Post-Closing Remedies. After Closing, Seller and Purchaser shall,
subject to the terms and conditions of this Agreement (including, without
limitation, Section 10(P) below), have such rights and remedies as are
available at law or in equity. The provisions of this Section 7 shall
survive the Closing and delivery of the Deed or sooner termination of this
Agreement.
8. CONDITIONS PRECEDENT
--------------------
A. Inspection Period. There presently exists that certain confidentiality
agreement dated December 23, 1997, from Broker on behalf of EOPMC and
Seller, on the one hand, and Prentiss
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Properties, Ltd. (for itself and as agent for Purchaser), on the other, as
modified by that certain modification amendment dated May 4, 1998 and
accepted by Purchaser on May 6, 1998 (collectively, the "Confidentiality
Agreement"), a copy of which is attached hereto as EXHIBIT Q. Subject to
Section 10(G) below and the provisions of the Confidentiality Agreement,
Purchaser and/or its agents have had, the period between May 6, 1998 and
the date of this Agreement within which to inspect the Property and conduct
such non-invasive, non-intrusive tests, surveys and inspections as
Purchaser deemed reasonably necessary or appropriate (the "Inspection
Period"). During the period between the date of this Agreement and Closing,
Purchaser shall have the right to continue to inspect and enter the
Property, subject to Section 10(G) below and the provisions of the
Confidentiality Agreement. Purchaser, by its execution of this Agreement,
acknowledges that it had an opportunity during the Inspection Period to
inspect the Property and all Disclosures (as defined in Section 10(H)
below) and make such other inquiries and investigations and obtain such
reports and analyses it deemed adequate in connection with its decision to
purchase the Property, and, as a result thereof, Purchaser shall agrees
that, except as specifically set forth in this Agreement, it shall purchase
the Property in its "AS IS, WHERE IS" condition, subject to ordinary wear
and tear and as more particularly provided in Section 10(H) below.
B. Estoppel Certificates.
---------------------
(i) It shall be a condition precedent to Purchaser's obligation to
close the purchase and sale transaction contemplated in this Agreement that
Purchaser shall have received, at Closing, estoppel certificates
(individually, an "Estoppel Certificate" and collectively, the "Estoppel
Certificates") dated as of a date no more than forty-five (45) days prior
to Closing, from tenants occupying not less than eighty percent (80%) of
the net rentable square footage of space at the Property actually leased as
of the end of the Inspection Period pursuant to valid and existing Leases,
specifically including in such eighty percent (80%) Estoppel Certificates
executed by ZS Associates, Inc., Sachs Group, Inc., and Cass
Communications, Inc., such Estoppel Certificate to be in form and content
as set forth herein. The Estoppel Certificates executed by tenants shall be
substantially in the form of EXHIBIT G attached hereto (the "Form Tenant
Estoppel Certificate") and must not disclose any matters that make the
representatives of Seller in Section 9(A) untrue or incorrect in any
material respect as of the effective date of such representations or as of
the Closing Date or disclose a Tenant Inducement Obligation (as hereinafter
defined) (each an "Estoppel Matter" and collectively "Estoppel Matters"),
except that an Estoppel Certificate shall be deemed an acceptable Estoppel
Certificate for purposes of this Section 8(B)(i) if: (1) it contains the
qualification by the tenant of any statement as being to the best of its
knowledge or as being subject to any similar qualification in the places
where the phrase "to Tenant's knowledge" is in bold and bracketed on the
attached EXHIBIT G, and/or (2) it contains any tenant objection to
addressing or certifying the Estoppel Certificate to Purchaser's mortgage
lender, if any and the Lease does not obligate the tenant to so certify to
such mortgage lender, or is not addressed or certified to such mortgage
lender and the Lease does not obligate the tenant to so certify to such
mortgage lender, (3) it is in a form required by the applicable Tenant's
Lease (the aforesaid acceptable Estoppel Certificates to be delivered are
collectively referred to as the "Required Estoppel Certificates"), and/or
(4) if it does not contain the base year or base year amount in item 8 of
EXHIBIT G. In the event that an Estoppel Certificate discloses any Estoppel
Matters, Seller shall have the right, but not the obligation to cure the
Estoppel Matter and, in such event, extend the scheduled date for Closing
hereunder for up to thirty (30) days to complete such cure. As used herein,
the term "Tenant Inducement Obligation" shall mean any tenant improvement
obligation or allowance, any rent abatement or other obligation of the
landlord of a similar nature under the Leases that is to be given and/or
fulfilled after Closing and such obligation: (w) was
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<PAGE>
not set forth in the Leases as being required to be performed after
Closing, (x) the Service Contracts, (y) EXHIBIT S, or (z) EXHIBIT T.
(ii) In the event that Seller is unable to provide to Purchaser the
Required Estoppel Certificates at Closing as provided above, Purchaser may
either: (y) elect not to purchase the Property, in which event this
Agreement shall be null and void, the Escrowee shall promptly return the
Earnest Money to Purchaser and thereafter neither Seller nor Purchaser
shall have any further rights or obligations under this Agreement, other
than those rights and obligations which expressly survive termination of
this Agreement and the rights and obligations under the Confidentiality
Agreement; or (z) elect to purchase the Property notwithstanding Seller's
inability to provide the Required Estoppel Certificates, in which event
Seller shall not be obligated to provide any additional Estoppel
Certificates to Purchaser after Closing. The provisions of this Section
8(B)(ii) shall survive the Closing and delivery of the Deed.
(iii) If any Estoppel Certificates contain statements or allegations
that a default or potential default exists on the part of Seller under the
Lease in question and (1) the existence or the substance of such
allegations or statements were contained in any written documentation
provided to any of the Purchaser Knowledge Parties (as hereinafter defined)
prior to the end of the Inspection Period, or (2) prior to the end of the
Inspection Period any of the Purchaser Knowledge Parties otherwise obtained
actual knowledge of facts revealing the substance of such statements or
allegations, or (3) Purchaser elects that Closing occur notwithstanding the
existence of such default or potential default, then such Estoppel
Certificates shall be deemed acceptable for purposes of this Section 8(B),
notwithstanding the existence of such allegations or statements and Seller
shall have no liability to Purchaser hereunder with respect to the
existence of such allegations, statements or information. The provisions of
this Section 8(B)(iii) shall survive the Closing and delivery of the Deed.
As used herein, "Purchaser Knowledge Parties" shall mean Tim Telling,
Lawrence Krueger and Kevin Carroll.
C. Accuracy of Seller's Representations. It shall be a condition
precedent to Purchaser's obligation to close the purchase and sale
transaction contemplated in this Agreement that each of Seller's
representations set forth in Section 9(A) below shall be true and correct
in all material respects as of Closing, as modified by any Inspection
Period Disclosures (as defined in Section 9(B) below) prior to the end of
the Inspection Period. In the event that Seller makes any Pre-Closing
Disclosures (as defined in Section 9(B) below) to Purchaser or if the
Closing Certification contains items making Seller's representations in
Section 9(A) untrue or incorrect in any material respect as of the Closing
Date and such items are not Inspection Period Disclosures, Purchaser shall
have the right to terminate this Agreement and receive the return of the
Earnest Money by delivering written notice thereof to Seller on or before
Closing. If Purchaser does not terminate this Agreement pursuant to its
rights under this Section 8(C), then such representations shall be deemed
modified to conform them to the Inspection Period Disclosures and the Pre-
Closing Disclosures. The provisions of this Section 8(C) shall survive the
Closing and delivery of the Deed or sooner termination of this Agreement.
D. Compliance by Seller. It shall be a condition precedent to Purchaser's
obligation to close the purchase and sale transaction contemplated in this
Agreement that Seller shall have materially performed each of its
obligations hereunder.
E. Compliance by Purchaser. It shall be a condition precedent to Seller's
obligation to close the purchase and sale transaction contemplated in this
Agreement that Purchaser shall have materially performed each of its
obligations hereunder.
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F. Board Approval. It shall be a condition precedent to Purchaser's
obligation to close the purchase and sale transaction contemplated in this
Agreement that the Investment Committee of Purchaser approve the
transactions contemplated herein on or before 2:00 p.m. (Chicago, Illinois
time) on the third (3rd) business day after the date of this Agreement. In
the event that Seller does not receive written notice from Purchaser of the
Board of Trustees' failure to approve the transactions, the condition
precedent set forth in this Section 8(F) shall be deemed waived. In the
event that Seller receives written notice from Purchaser of the Board of
Trustees' failure to approve the transactions on or before 2:00 p.m.
(Chicago, Illinois time) on the third (3rd) business day after the date of
this Agreement, this Agreement shall be null and void and neither party
shall have any further rights or obligations under this Agreement except
those that expressly survive a termination of this Agreement as provided
herein and Seller's rights under the Confidentiality Agreement.
9. SELLER'S REPRESENTATIONS
------------------------
A. Representations. Seller represents to Purchaser that, as of the date
of this Agreement (or such other date, as applicable):
(i) Organization; Authority. Seller is a general partnership, duly
organized and in good standing under the laws of the State of Illinois.
Seller has the power and authority under Seller's partnership agreement
("Seller's Organizational Documents") to sell, transfer, convey and deliver
the Property to be sold and purchased hereunder, and all action and
approvals required thereunder have been duly taken and obtained in order to
sell, transfer, convey and deliver the Property as aforesaid.
(ii) No Breach. The execution and delivery of this Agreement, the
consummation of the transactions contemplated herein and fulfillment of the
terms hereof will not result in a breach of any of the terms or provisions
of, or constitute a default under, any provision of Seller's Organizational
Documents.
(iii) Condemnation. As of June 26, 1998, Seller has not received from
any governmental authority any written notice of any pending condemnation
or taking by eminent domain of the Property or any portion thereof.
(iv) Litigation. Except as set forth on EXHIBIT H attached hereto,
as of June 26, 1998, Seller is neither a party to any existing litigation
with respect to the Property nor has it received formal written process of
any litigation with respect to the Property which is still pending.
(v) Rent Roll. Attached hereto as EXHIBIT N is a list (the "Rent
Roll") setting forth the following information as of the date of this
Agreement: (1) the name, to the Actual Knowledge of Seller, of each tenant
under each of the Leases as of the date of this Agreement, (2) the Suite
number(s) occupied (or to be occupied, with respect to those tenants who
have not yet taken possession of the space demised under their Lease) by
each such tenant, (3) the monthly Base Rent and estimated operating expense
pass-throughs payable by each tenant with respect to the month of June,
1998, (4) to the Actual Knowledge of Seller, the approximate square footage
demised under the particular tenant's Lease, (5) the amount of all
unapplied Security Deposits held by Seller with respect to the Leases as of
the date hereof, (6) the expiration dates of the current Lease terms, (7)
the monthly storage rent payable by each tenant with respect to June, 1998,
the (8) "base year" used to calculate Tenant Reimbursements payable by the
tenant, and (9) any delinquent rent or other amounts owed by tenants as of
June 15, 1998.
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(vi) Leases. Prior to the date hereof, Seller has delivered true and
correct (to the Actual Knowledge of Seller) copies of the Leases to
Purchaser.
(vii) Violations of Law. To the Actual Knowledge of Seller, as of
June 26, 1998, except as set forth on Exhibit I attached hereto, Seller has
received no written notice from any governmental authority of any material
violation of any, state or federal law, rule or regulation concerning the
Property or any part thereof which has not been cured prior to the date of
this Agreement.
(viii) Service Contracts. To the Actual Knowledge of Seller, the list
attached hereto as Exhibit C lists all of the Service Contracts, the vendor
and/or payor under each Service Contract, a description of the service
provided thereunder and, if such Service Contract is written, the date of
the Service Contract. Prior to the date hereof, Seller has delivered true
and correct (to the Actual Knowledge of Seller) copies of the Service
Contracts to Purchaser.
(ix) Employees. Seller has no employees working at the Property.
(x) Personal Property. Seller owns all of the Tangible Personal
Property.
(xi) Union Contracts. Except for the Union Contract, the New Global
Union Contract and/or the new union contract, as applicable, the Property
is not subject to any union or collective bargaining agreements that will
be enforceable against the Property or any owner thereof after Closing.
(xii) Lease Defaults. Except as set forth on EXHIBIT W attached
hereto, as of June 26, 1998, Seller has received no written notice of a
material default of Seller under any of the Leases which has not been cured
prior to the date of this Agreement.
When used in this Agreement, the term "Actual Knowledge of Seller"
shall mean and be limited to the actual (and not imputed, implied or
constructive) current actual knowledge of Alissa Schneider, Vice President-
Dispositions of Equity Office Properties Trust, a Maryland real estate
investment trust ("EOP") and Arvid Povilatis, Senior Vice President of EOP.
Notwithstanding anything herein to the contrary, neither Alissa Schneider
nor Arvid Povalitis shall (whether prior to or after Closing) have any
personal liability or obligation whatsoever with respect to any matters set
forth in this Agreement or with respect to any of Seller's representations
herein being or becoming untrue, inaccurate or incomplete in any respect.
Any knowledge or notice given to any of Seller's other agents, servants,
representatives or employees shall not be imputed to Seller.
B. Representations Remade. At Closing, Seller shall be deemed to remake
and restate the representations set forth in Section 9(A) and as set forth
in the Closing Certification except that the representations shall be
updated: (i) by Seller delivering written notice to the Purchaser Knowledge
Parties prior to Closing to reflect any fact, matter or circumstance which
Seller's Chicago, Illinois representatives become aware of that would make
any of Seller's representations contained in Section 9(A) untrue or
incorrect in any material respect, (ii) to reflect any written information
provided to the Purchaser Knowledge Parties prior to the expiration of the
Inspection Period, (iii) to reflect any statements or allegations in
Estoppel Certificates that a default or potential default exists on the
part of Seller under the respective Leases in question not previously
disclosed to Purchaser that would otherwise make any of Seller's
representations in Section 9(A) or the Closing Certification untrue in any
material
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respect, and (iv) to reflect the actual knowledge of any of the Purchaser
Knowledge Parties, prior to the end of the Inspection Period, of facts
inconsistent with or different from the representations set forth herein
(items (i) and (iii) being collectively referred to herein as the "Pre-
Closing Disclosures" and items (ii) and (iv) being collectively referred to
herein as the "Inspection Period Disclosures").
C. Survival. The representations of Seller set forth in Section 9(A),
subject to modifications thereto as provided in Section 9(B), shall survive
the Closing and the delivery of the Deed for a period terminating on the
two hundred seventieth day (270th) after the Closing Date. In addition, the
certification of Seller set forth in the Updated Rent Roll shall, subject
to Section 8(B) above, survive the Closing and delivery of the Deed for a
period terminating on the two hundred seventieth day (270th) after the
Closing Date. Notice of any claim as to a breach of any such
representations must be made to Seller prior to 5:00 p.m. (Chicago,
Illinois time) on the two hundred seventieth day (270th) after the Closing
Date or it shall be deemed a waiver of the right to assert such claim.
D. Defaults by tenants under Leases and vendors under Service Contracts.
Seller does not represent that any particular Service Contract will be in
force or effect as of the Closing or that tenants under Leases or the
parties to the Service Contracts will not be in default under their
respective Leases or Service Contracts, and neither the existence of any
default by any tenant under its Lease nor the default of any party under
any Service Contract shall affect the obligations of Purchaser hereunder;
provided, however, the foregoing shall not affect the conditions contained
in Sections 8(B) or 8(C) above. The provisions of this Section 9(D) shall
survive the Closing and delivery of the Deed.
E. Estoppel Certificates supersede representations. In the event that an
Estoppel Certificate is received from a tenant (before or after Closing)
which confirms the accuracy of the representations made in Section 9(A) (as
modified as provided in Section 9(B)) or the certification set forth in the
Updated Rent Roll, then the representations in Section 9(A) and the
certification in the Updated Rent Roll with respect to the corresponding
Lease (as modified as provided in Section 9(B)) shall be deemed to be
superseded by such Estoppel Certificate (and, in such event, Seller shall
no longer have any liability hereunder with respect to the portion of the
representation superseded). The provisions of this Section 9(E) shall
survive the Closing and delivery of the Deed.
10. MISCELLANEOUS
-------------
A. Entire Agreement. All understandings and agreements heretofore had
between Seller and Purchaser with respect to the Property are merged in
this Agreement, which alone fully and completely expresses the agreement of
the parties. Purchaser further acknowledges that, except as expressly
provided in this Agreement or in any documents executed in connection with
the Closing (the "Closing Documents"), neither Seller nor any agent or
representative of Seller has made, and Seller is not liable for or bound in
any manner by, any express or implied warranties, guaranties, promises,
statements, inducements, representations or information pertaining to the
Property. The provisions of this Section 10(A) shall survive the Closing
and delivery of the Deed.
B. No Assignment. Except for an assignment to a Permitted Assignee (as
hereinafter defined) or as permitted under Section 10(AA) below, neither
this Agreement nor any interest hereunder shall be assigned or transferred
by Purchaser without the written consent of Seller, which consent may be
withheld in the sole and absolute discretion of Seller. For purposes of
this
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Agreement, the term "Permitted Assignee" shall be defined to mean a
partnership, corporation or limited liability company owned or controlled
by Purchaser. Upon an assignment to a Permitted Assignee such Permitted
Assignee shall execute and deliver an agreement to Seller in which such
Permitted Assignee assumes all of the obligations of Purchaser under this
Agreement. Upon an assignment of this Agreement to a Permitted Assignee:
(1) Purchaser shall not be relieved of any subsequently accruing liability
under this Agreement, and (2) as used in this Agreement, the "Purchaser"
shall be deemed to include such Permitted Assignee. Any time after the two
hundred seventieth (270th) day after the Closing Date, Seller may assign or
otherwise transfer its interest under this Agreement. As used in this
Agreement, the term "Seller" shall be deemed to include any assignee or
other transferee of any Seller. Upon any such transfer by a Seller, such
Seller shall be relieved of any subsequently accruing liability under this
Agreement. Subject to the foregoing, this Agreement shall inure to the
benefit of and shall be binding upon Seller and Purchaser and their
respective successors and assigns. The provisions of this Section 10(B)
shall survive the Closing and delivery of the Deed or sooner termination of
this Agreement.
C. Amendments. This Agreement shall not be modified or amended except in
a written document signed by Seller and Purchaser.
D. Time of the Essence. Time is of the essence of this Agreement.
E. Governing Law. This Agreement shall be governed and interpreted in
accordance with the laws of the State of Illinois. The provisions of this
Section 10(E) shall survive the Closing and delivery of the Deed or sooner
termination of this Agreement.
F. Notices. All notices, requests, demands or other communications
required or permitted under this Agreement shall be in writing and
delivered (i) personally, (ii) by certified mail, return receipt requested,
postage prepaid, (iii) by overnight courier (such as Federal Express), or
(iv) by facsimile transmission (with a copy sent via (i), (ii) or (iii)),
addressed as follows):
1. If to Seller:
c/o Equity Office Properties Management Corp.
Two North Riverside Plaza
Suite 2200
Chicago, Illinois 60606
Telephone: (312) 466-3595
Facsimile: (312) 559-5051
Attention: Alissa Schneider
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With a copy to:
Rosenberg & Liebentritt, P.C.
Suite 1600
Two North Riverside Plaza
Chicago, Illinois 60606
Telephone: (312) 466-3483
Facsimile: (312) 454-0335
Attention: Steven E. Ehrlich
2. If to Purchaser:
Prentiss Properties Acquisition Partners, L.P.
9950 West Lawrence Avenue
Suite 105
Schiller Park, Illinois 60176
Telephone: (847) 678-7966
Facsimile: (847) 678-8032
Attention: Lawrence J. Krueger
With a copy to:
Rudnick & Wolfe
203 North LaSalle Street
Chicago, Illinois 60601
Telephone: (312) 368-2178
Facsimile: (312) 236-7516
Attention: Peter Ross
All notices given in accordance with the terms hereof shall be deemed
received (1) when delivered, if personally delivered, (2) forty-eight (48)
hours after posting, if sent by certified mail, return receipt requested,
postage prepaid, (3) the next business day after deposit with the courier
company, if sent by overnight courier, and (4) on the day sent, if sent by
facsimile transmission prior to the close of the recipient's business day.
Either party hereto may change the address for receiving notices, requests,
demands or other communication by notice sent in accordance with the terms
of this Section 10(F).
G. Inspections. Purchaser's right of inspection pursuant to Section 8(A)
above shall be subject to the rights of tenants under the Leases and other
occupants and users of the Property. No inspection shall be undertaken
without reasonable prior notice to Seller. Seller shall have the right to
be present at any or all inspections. Purchaser may contact tenants
directly; provided that Purchaser shall notify Seller forty-eight (48)
hours prior to any such contact so that Seller may have a representative
present during such contact. No inspection shall involve the taking of
samples or other physically invasive procedures without the prior consent
of Seller. Notwithstanding anything to the contrary contained in this
Agreement, Purchaser shall
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indemnify and hold Seller and its employees and agents, and each of them,
harmless from and against any and all losses, claims, damages and liabilities
(including, without limitation, reasonable attorneys' fees incurred in
connection therewith) arising out of or resulting from Purchaser's exercise of
its rights of inspection as provided for in Section 8(A) above and this Section
10(G). Except upon the written request of Seller pursuant to Section 10(K)
below, Purchaser shall not deliver to Seller copies of any of the studies,
reports, surveys or other information, data and/or documents relating to the
Property or any part thereof prepared by or at the request of Purchaser, its
employees, agents, representatives or contractors. The provisions of this
Section 10(G) shall survive the Closing and delivery of the Deed or sooner
termination of this Agreement.
H. As-Is Condition. ACKNOWLEDGING THE PRIOR USE OF THE PROPERTY AND
PURCHASER'S OPPORTUNITY TO INSPECT THE PROPERTY AND EXCEPT AS SPECIFICALLY
PROVIDED IN THIS AGREEMENT, PURCHASER AGREES TO TAKE THE PROPERTY "AS IS" WITH
ALL FAULTS AND CONDITIONS THEREON, SUBJECT TO USE, ORDINARY WEAR AND TEAR,
NATURAL DETERIORATION AND SUCH OTHER MATTERS AS ARE PERMITTED BY THIS AGREEMENT.
EXCEPT AS SPECIFICALLY PROVIDED IN THIS AGREEMENT OR THE CLOSING DOCUMENTS, ANY
INFORMATION, REPORTS, STATEMENTS, DOCUMENTS OR RECORDS, INCLUDING, WITHOUT
LIMITATION, THE ITEMS SET FORTH IN EXHIBIT P ATTACHED HERETO (COLLECTIVELY, THE
"DISCLOSURES") PROVIDED OR MADE TO PURCHASER OR ITS CONSTITUENTS OR AGENTS BY
SELLER, ITS AGENTS, EMPLOYEES, CONTRACTORS OR REPRESENTATIVES, CONCERNING THE
PROPERTY SHALL NOT BE REPRESENTATION OR WARRANTIES. EXCEPT AS SPECIFICALLY
PROVIDED IN THIS AGREEMENT OR IN ANY CLOSING DOCUMENTS, PURCHASER SHALL NOT RELY
ON SUCH DISCLOSURES, BUT RATHER, PURCHASER SHALL RELY ONLY ON ITS OWN INSPECTION
OF THE PROPERTY. PURCHASER ACKNOWLEDGES AND AGREES THAT, EXCEPT AS EXPRESSLY
PROVIDED IN THIS AGREEMENT OR IN ANY CLOSING DOCUMENTS, NEITHER SELLER NOR ITS
AGENTS, EMPLOYEES, CONTRACTORS OR REPRESENTATIVE HAS MADE, AND NONE OF THEM
MAKES AND EACH SPECIFICALLY DISCLAIMS ANY STATEMENTS, REPRESENTATIONS,
WARRANTIES, PROMISES, COVENANTS, AGREEMENTS OR GUARANTIES OF ANY KIND OR
CHARACTER WHATSOEVER, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, PAST, PRESENT
OR FUTURE, OF, AS TO, CONCERNING OR WITH RESPECT TO (A) THE NATURE, QUALITY OR
CONDITION OF THE PROPERTY, INCLUDING, WITHOUT LIMITATION, THE WATER, SOIL AND
GEOLOGY, (B) THE INCOME HERETOFORE DERIVED OR TO BE DERIVED FROM THE PROPERTY,
(C) THE SUITABILITY OF THE PROPERTY FOR ANY AND ALL ACTIVITIES AND USES WHICH
PURCHASER MAY CONDUCT THEREON, (D) THE COMPLIANCE OF OR BY THE PROPERTY OR ITS
OPERATION WITH ANY LAWS, RULES, ORDINANCES OR REGULATIONS OF ANY APPLICABLE
GOVERNMENTAL AUTHORITY OR BODY, (E) THE HABITABILITY, MERCHANTABILITY OR FITNESS
FOR A PARTICULAR PURPOSE OF THE PROPERTY, OR (F) ANY OTHER MATTER WITH RESPECT
TO THE PROPERTY, AND SPECIFICALLY DISCLAIM ANY REPRESENTATIONS REGARDING
TERMITES OR WASTES, AS DEFINED BY THE U.S. ENVIRONMENTAL PROTECTION AGENCY
REGULATIONS AT 40 C.F.R., OR ANY HAZARDOUS SUBSTANCE, AS DEFINED BY THE
COMPREHENSIVE ENVIRONMENTAL RESPONSE COMPENSATION AND LIABILITY ACT OF 1980
("CERCLA"), AS AMENDED, AND REGULATIONS PROMULGATED THEREUNDER.
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PURCHASER, ITS SUCCESSORS AND ASSIGNS, HEREBY WAIVE, RELEASE AND AGREE NOT
TO MAKE ANY CLAIM OR BRING ANY COST RECOVERY ACTION OR CLAIM OR CONTRIBUTION,
INDEMNITY OR OTHER ACTION OR CLAIM AGAINST SELLER OR ITS AFFILIATES, DIRECTORS,
OFFICERS, EMPLOYEES, AGENTS, ATTORNEYS OR ASSIGNS (A) UNDER ANY FEDERAL, STATE
OR LOCAL ENVIRONMENTAL OR HEALTH AND SAFETY LAW OR REGULATION, INCLUDING CERCLA
OR ANY STATE EQUIVALENT, OR ANY SIMILAR LAW NOW EXISTING OR HEREAFTER ENACTED;
(B) WITH RESPECT TO, IN CONNECTION WITH OR RESULTING FROM ANY DISCHARGE,
DISPOSAL, RELEASE OR ESCAPE OF ANY CHEMICAL, OR ANY HAZARDOUS OR TOXIC MATERIAL
WHATSOEVER, ON, AT, TO OR FROM THE PROPERTY; OR (C) ANY ENVIRONMENTAL CONDITIONS
OR OTHER CONDITIONS WHATSOEVER ON, UNDER OR IN THE VICINITY OF THE PROPERTY.
THE PROVISIONS OF THIS SECTION 10(H) SHALL SURVIVE THE CLOSING AND DELIVERY
OF THE DEED OR SOONER TERMINATION OF THIS AGREEMENT.
I. Waiver of Jury Trial. In any lawsuit or other proceeding under or with
respect to this Agreement, Purchaser and Seller waive any rights they may have
to trial by jury. The provisions of this Section 10(I) shall survive the Closing
and delivery of the Deed or sooner termination of this Agreement.
J. Confidentiality; Press Release. Purchaser acknowledges that all
information with respect to the Property obtained or developed by Purchaser, or
furnished or to be furnished to Purchaser is, has been and will be so furnished
on the condition that Purchaser maintain the confidentiality thereof.
Accordingly, prior to Closing, Purchaser shall, and shall cause its directors,
officers and other personnel and representatives to, hold in strict confidence,
and not disclose to any other party without the prior written consent of Seller:
(i) any of the information with respect to the Property delivered to Purchaser
by Seller or any of its agents, representatives or employees, or (ii) the
existence of this Agreement or any term or condition hereof, or (iii) the
results of any inspections or studies undertaken in connection herewith or any
other information obtained or developed by Purchaser. In addition, prior to
Closing, neither Purchaser nor Purchaser's directors, officers and other
personnel and representatives shall solicit offers to purchase the Property to
any other party without the prior written consent of Seller. Notwithstanding the
above, Purchaser may disclose such information to individuals or entities
necessary for Purchaser to consummate the transaction contemplated herein (such
as investors, lenders, engineers, attorneys, prospective management companies,
environmental consultants, accountants and tax advisors and Focus Development
[as to matters pertinent to a sale of a portion of the Property to Focus
Development after Closing]) and as required by law. Purchaser shall, with
respect to any parties to whom the existence of this Agreement or any
information with respect to the Property is disclosed, notify such parties of
the existence of the Confidentiality Agreement and its applicability to any such
information provided to any such parties. In the event the Closing does not
occur and this Agreement is terminated, Purchaser shall, upon written request by
Seller, promptly return to Seller all copies of all such information without
retaining any copy thereof or extract therefrom. In the event that the Closing
occurs, both Seller and Purchaser shall only issue press releases with respect
to the transaction in forms reasonably acceptable to both parties. Purchaser's
and Seller's obligations under this Section 10(J) shall survive any termination
of this Agreement. Purchaser's obligations under this
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Section 10(J) shall terminate and be of no further force and effect if the
Closing occurs hereunder.
K. Reports. If for any reason Purchaser does not consummate the Closing, then
Purchaser shall, upon Seller's written request, assign and transfer to Seller,
without representation, warranty or recourse, all of its right, title and
interest in and to any and all third-party studies, reports, surveys and other
information, data and/or documents relating to the Property or any part thereof
prepared by or at the request of Purchaser, its employees and agents, and shall
deliver to Seller copies of all of the foregoing. The provisions of this Section
10(K) shall survive any termination of this Agreement.
L. New Leases. Seller and Purchaser further agree as follows:
----------
1. From and after the date of this Agreement through the Closing,
Seller has delivered or shall deliver, as applicable, to Purchaser for
review (a "New Lease Notice") a copy of any proposed New Lease, together
with a schedule of any tenant improvement costs and/or allowances and
leasing commissions payable in connection therewith and, to the extent
obtained from a prospective new tenant, such tenant's financial
information. Purchaser shall have the right (exercisable in its reasonable
discretion) to approve or disapprove of any New Lease by responding in
writing to Seller's New Lease Notice within five (5) business days after
Purchaser's receipt of the New Lease Notice. If Purchaser fails to approve
or disapprove of such New Lease within such five (5) business day period,
Purchaser shall be deemed to have conclusively approved of such New Lease.
In the event that Purchaser reasonably disapproves of such New Lease within
such five (5) business day period, Seller shall not enter into such New
Lease.
2. All tenant improvement costs and/or allowances and leasing
commissions relating to New Leases entered into by Seller between the date
of this Agreement and prior to Closing which Purchaser approves (or is
deemed to approve) in accordance with Section 10(L)(1) above, shall be
prorated in accordance with Section 4(C)(i)(c) above.
M. Reporting Person. Seller and Purchaser hereby designate Escrowee to act as
and perform the duties and obligations of the "reporting person" with respect to
the transaction contemplated by this Agreement for purposes of 26 C.F.R. Section
1.6045-4(e)(5) relating to the requirements for information reporting on real
estate transaction closed on or after January 1, 1991. In this regard, Seller
and Purchaser each agree to execute at Closing, and to cause the Escrowee to
execute at Closing, a Designation Agreement, designating Escrowee as the
reporting person with respect to the transaction contemplated by this Agreement.
N. Counterparts. This Agreement may be executed in any number of identical
counterparts, any or all of which may contain signatures of fewer than all of
the parties but all of which taken together shall constitute a single
instrument.
O. No Recording. Neither this Agreement nor a memorandum thereof shall be
recorded against the Property.
P. Limitation of Liability.
-----------------------
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1. Purchaser acknowledges and agrees that any recovery against
Seller that Purchaser may be entitled to as a result of any claim,
demand or cause of action that Purchaser may have against Seller with
respect to this Agreement and the transactions contemplated herein
shall only be recoverable against Seller in an amount not in excess of
Five Hundred Thousand ($500,000.00).
2. In order to secure the obligations and liabilities of Seller
under this Agreement that survive Closing, (collectively, "Seller's
Surviving Obligations"), at Closing, Seller shall deposit Five Hundred
Thousand Dollars ($500,000.00) of the proceeds of the purchase and
sale transaction (the "Holdback Funds") with the closing escrowee.
All interest accrued on the Holdback Funds shall accrue to the benefit
of and be paid to Seller. Holdback Funds shall be invested as Seller
directs.
3. If Purchaser incurs any single loss, damage, cost or expense
(including attorneys' fees) for any matter in excess of Twenty Five
Thousand Dollars ($25,000.00) or any group of losses, damages, costs
or expenses (including attorneys' fees) aggregating in excess of
Twenty Five Thousand Dollars ($25,000.00) Purchaser believes is
covered under Seller's Surviving Obligations (a "Claim"), and desires
to seek recovery from Seller, Purchaser shall give Seller written
notice thereof (a "Claim Notice") describing the Claim in reasonable
detail. The Claim Notice shall, if applicable, be accompanied by
appropriate documentation (including by way of illustration, but not
of limitation, receipted bills or canceled checks). If the Claim
Notice states a Claim for a specified amount of money, the Claim
Notice shall also be accompanied by appropriate documentation thereof
(including by way of illustration, but not of limitation, estimates by
independent and reputable vendors, contractors, engineers or
architects or other responsible estimators unaffiliated with
Purchaser, third party invoices, receipted bills or canceled checks).
4. Seller and Purchaser, acting reasonably and in good faith,
shall attempt to amicably resolve each Claim within thirty (30) days
after its Claim Notice becomes effective. If such amicable resolution
results in an agreed amount payable to Purchaser, Seller and Purchaser
shall deliver a joint written instruction to the closing escrowee to
pay the agreed-upon amount to Purchaser out of the Holdback Funds. If
such Claim is not amicably resolved, then Purchaser shall give Seller
written notice of its election to litigate the Claim at least five (5)
business days prior to commencing such litigation and, after the
expiration of such five (5) business day period, may proceed to
litigate the Claim, and if Purchaser obtains Final Judgment in its
favor with respect to the Claim, the closing escrowee shall, upon
receipt of a copy of the Final Judgment certified by the clerk of the
court issuing such Final Judgment, disburse the appropriate amount out
of the Holdback Funds. As used herein, "Final Judgment" means a final
judgment or verdict rendered by a court of competent jurisdiction,
after all appeals (or expiration of all appeal periods, if no appeal
is taken).
5. If no Claim is made before the two hundred seventieth (270th)
day after the Closing Date, then the Holdback Funds may thereafter be
distributed to Seller.
6. If any Claim Notice is given before the two hundred
seventieth (270th) day after the Closing Date (collectively, "Eligible
Claim[s]") the closing escrowee shall not distribute an aggregate
amount of Holdback Funds in the amount of 150% of such Claims (but in
no event more than $500,000 in the aggregate), and retain such amount
until such time as (i) Purchaser and Seller jointly agree upon
disposition of such funds
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and deliver a joint written direction to the closing escrowee
instructing the closing escrowee as to the distribution of such funds
or (ii) a Final Judgment is entered with respect to such funds. Any
balance may be distributed by Seller as of the two hundred seventieth
(270th) day after the Closing Date.
7. Promptly after Purchaser and Seller jointly agree upon
disposition of such funds or Final Judgment with respect to all
Eligible Claims has been entered, the closing escrowee shall pay the
appropriate amount(s) to Purchaser, and may distribute the balance of
the Holdback Funds, if any, and this holdback arrangement under this
Section 10(P) shall thereupon terminate. Purchaser shall pay all
costs for the escrow, if any.
8. At Closing, Seller, Purchaser and the closing escrowee shall
enter into an agreement with respect to the arrangement with respect
to the arrangements described in this Section 10(P). Such agreement
shall be referred to herein as the "Post-Closing Escrow Agreement".
Q. Conflict. In the event of a conflict between the terms and provisions
of the Confidentiality Agreement and this Agreement, the terms and
provisions of this Agreement shall control.
R. No survival unless specifically provided. Except as specifically
provided for in this Agreement, the rights, obligations, representations,
warranties, covenants and agreements of the parties set forth in this
Agreement shall not survive the Closing or any termination of this
Agreement.
S. No third-party beneficiaries. Except as specifically provided herein,
no third parties shall have the benefit of any of the provisions of this
Agreement, nor is this Agreement made with the intent that any person or
entity other than Seller and Purchaser shall rely hereon.
T. Letter of Intent. Effective as of the date of this Agreement, the
Letter of Intent is terminated and of no further force and effect.
U. Potential Mechanic's Liens related to Tenant Buildout. Should the
timing and/or scope of work to be performed by the lessor under Leases
and/or New Leases require Seller to enter into contracts with contractors
or other parties during the period between expiration of the Inspection
Period and Closing in order to comply with the lessor's obligations under
such Leases and/or New Leases and the work performed under such contracts
will not be completed prior to Closing, Seller shall submit the proposed
contract with such contractor or other parties to Purchaser for its
approval. Purchaser shall have the right (exercisable in its reasonable
discretion) to approve or disapprove of such contract. If Purchaser fails
to approve or disapprove of such contract within five (5) business days
after its receipt of same, Purchaser shall be deemed to have conclusively
approved of such contract. In the event Purchaser reasonably disapproves
of such contract within such five (5) business day period, Seller shall not
enter into such contract. If a contract approved under this Section 10(U)
requires that Seller pay any amounts under such contract prior to Closing,
Seller shall pay such amounts (and such amounts shall be prorated between
Purchaser and Seller as provided in Sections 4(C)(i)(c) and 4(C)(i)(d)
above). At Closing, Purchaser shall assume the obligations of Seller under
all contracts approved under this Section 10(U) and all Service Contracts
with respect to construction, including the obligation for payment of all
amounts owed under such contracts and Service Contracts after Closing. If
any such approved contract(s) and/or Service Contracts result in work for
which the
26
<PAGE>
provider or subcontractor thereunder may obtain a lien against the Property
if such work is not paid for and Purchaser is obligated to pay for such
work as provided in the preceding sentence, then the "Permitted Exceptions"
shall be deemed to include any potential liens and related notices of
commencement as a result thereof. The provisions of this Section 10(U)
shall survive the Closing and delivery of the Deed.
V. Trustee Exculpation. This Agreement is executed by the undersigned
Trustee, not personally but solely as Trustee in the exercise of the power
and authority conferred upon and invested in it as trustee under the Trust.
It is expressly understood and agreed by all parties to this Agreement that
all the warranties, indemnities, representations, covenants, undertakings
and agreements herein made on the part of the Trustee are undertaken by the
Trustee solely in the Trustee's capacity as Trustee and not personally. No
personal liability or personal responsibility is assumed by or shall at any
time be asserted or enforceable against such Trustee on account of any
warranty, indemnity, representation, covenant, undertaking or agreement of
the Trustee in this Agreement.
W. Use of "Seller". The term "Seller" as used herein shall be construed
to refer only to Trust or Beneficiary, as the case may be, if the context
in which such term is used requires such construction.
X. Operation of Property. Seller hereby covenants and agrees with
Purchaser that:
1. Between the date of this Agreement and the Closing Date and
except as permitted under Section 10(U) above or under Section 10(Z)
below, Seller shall not enter into any new Service Contracts, or
cancel, materially modify or renew any existing Service Contracts,
without the prior written consent of Purchaser, which consent shall not
be unreasonably withheld or delayed, unless such new Service Contracts
are cancelable by Seller prior to Closing without penalty to Purchaser.
If Purchaser fails to respond to such a request for consent within five
(5) business days after receipt of the request, such consent shall be
deemed given.
2. Between the date of this Agreement and the Closing Date,
Seller shall maintain the liability and casualty insurance coverage
with respect to the Property in effect as of the date of this
Agreement.
3. Between the date of this Agreement and the Closing Date,
Seller shall operate the Property in the normal course of Seller's
business and maintain the Property in the same condition as of the date
of this Agreement, ordinary wear and tear excepted and subject to
Section 5 above. Notwithstanding anything in the preceding sentence to
the contrary, in no event shall Seller be required to make any capital
improvements to the Property or expend, in the aggregate, in excess of
$25,000 for repairs (the extent and scope of which shall be determined
by Seller in its reasonable discretion).
4. Between the date of this Agreement and the Closing Date and
except as required by law or by any of the Permitted Exceptions or as
otherwise permitted under this Agreement, Seller shall not become party
to agreements granting an easement, right-of-way of license on, under
or about the Property or for the use of the Property, and Seller shall
not become party to any agreements granting easements, rights-of-way or
licenses in favor of the Property or otherwise encumber, or grant
interests in, the Property.
27
<PAGE>
Y. Audit Letter. At Purchaser's request at any time from and after the
date hereof until the date that is four (4) months after the Closing Date,
Seller shall, at Purchaser's expense, provide to Purchaser's designated
independent auditor reasonable access to the books and records of the
Property, regarding the period for which Purchaser is required to have
audited financial statements prepared with respect to the Property as may
be required by the Securities and Exchange Commission, but only to the
extent that such books, records and related information are in Seller's
possession or control and relate to the period during which Seller held
title to the Property. Further, Seller agrees to provide such auditor a
representation letter regarding the books and records of the Property at
the time of such audit and after Seller's receipt and approval of a final
draft of the auditor's financial statements and proposed opinion, in
substantially the form of EXHIBIT X attached hereto, in connection with the
normal course of auditing the Property in accordance with generally
accepted auditing standards (but shall not thereby be deemed to have made
any representation or warranty to Purchaser or to any other third party).
Z. Union Employees; Union Contract. The Service Contracts include a
collective bargaining agreement with the International Union of Operating
Engineers of Chicago, Illinois and Vicinity Local No. 399 (the "Union") for
the period June 1, 1996 through May 31, 1998 (the "Union Contract"). The
Union Contract's term has expired as of the date hereof and a new
collective bargaining agreement (the "New Global Union Contract") has not
yet been executed by the Union and BOMA and may not be executed prior to
Closing. In the event that the New Global Union Contract is executed after
the date hereof and the Union provides Seller with a new union contract for
the Property prior to Closing, Seller shall be permitted to enter into such
new union contract provided it covers only the Building and is consistent
with the New Global Union Contract. In the event the new union contract
covers other portions of the Real Property in addition to the Building and
Seller nevertheless executes the new union contract, such execution by
Seller shall not be a default by Seller hereunder and Purchaser's only
remedy in connection with such execution by Seller shall be to terminate
this Agreement. Such termination must occur upon the earlier of two (2)
business days after Purchaser's receipt of written notice of such execution
and Closing. In the event that Purchaser does not elect to so terminate
within the time period provided for in the preceding sentence, this
Agreement shall continue in full force and effect and Seller shall not have
any liability to Purchaser in connection with its execution of the new
union contract. Prior to Closing, Seller and EOPMC intend to continue to
act with respect to the Union and any employee at the Property subject to
the Union Contract pursuant to the terms of the Union Contract, in the same
manner and to the same extent as in the past or, if a New Global Union
Contract or a new union contract is entered into by Seller, pursuant to
such New Global Union Contract or new union contract, as applicable. At
Closing, Purchaser's assumption of the Service Contracts pursuant to the
Service Contract Assumption shall include the Union Contract or, in the
event the new union contract has been executed, the new union contract. In
order to assure compliance with the Union Contract, the New Global Union
Contract and/or the new union contract, Purchaser covenants and agrees,
upon Closing, to comply with all of the foregoing contracts, including
hiring any employee required to be employed pursuant to such contracts on
the terms and conditions required by such contracts. The terms and
provisions of this Section 10 (Z) shall survive Closing and the delivery of
the Deed or sooner termination of this Agreement.
AA. Section 1031 Exchange. Purchaser may consummate the purchase of the
Property as part of a so-called like-kind exchange (the "Exchange")
pursuant to (S)1031 of the Internal Revenue Code of 1986, as amended (the
"Code"), but only so long as: (i) the Closing is not delayed or affected
by reason of the Exchange, it being agreed that the consummation or
accomplishment of the Exchange is not a condition precedent or condition
subsequent to any party's obligations under this Agreement; (ii) the
Purchaser effects the Exchange through an
28
<PAGE>
assignment of Purchaser's rights (but not obligations) under this Agreement
to a qualified intermediary, it being agreed that Seller is not required to
take an assignment of the purchase agreement for the relinquished property
and is not required to acquire or hold title to any real property or other
property for purposes of consummating the Exchange; and (iii) the Purchaser
pays any additional costs that would not otherwise have been incurred by
either party had the Purchaser not consummated its purchase through the
Exchange. The assignment of its rights under this Agreement by Purchaser to
the qualified intermediary will not affect or diminish any obligations of
Purchaser hereunder. Furthermore, the Seller shall not by this agreement or
acquiescence to the Exchange: (1) have its rights under this Agreement
affected or diminished in any manner; or (2) be responsible for compliance
with or be deemed to have warranted to the Purchaser that the Exchange in
fact complies with (S) 1031 of the Code. Purchaser agrees to indemnify,
defend and hold Seller harmless of, from and against any and all losses,
costs, liabilities, expenses, suits, claims, demands and the like arising
from, in connection with or with respect to the Exchange. The provisions of
this Section 10(AA) shall survive Closing and the delivery of the Deed or
sooner termination of the Agreement.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY BLANK]
29
<PAGE>
IN WITNESS WHEREOF, Seller and Purchaser have executed and delivered this
Agreement as of the date first above written.
TRUST:
AMERICAN NATIONAL BANK AND TRUST COMPANY OF
CHICAGO, NOT PERSONALLY, BUT SOLELY AS TRUSTEE
UNDER TRUST AGREEMENT DATED MARCH 14, 1991 AND
KNOWN AS TRUST NUMBER 113531-09
By:____________________________________________
Name:__________________________________________
Its:___________________________________________
BENEFICIARY:
1800 SHERMAN ASSOCIATES, an Illinois general
partnership
By: First Capital Income and Growth Fund-Series
XII, an Illinois limited partnership, a general
partner
By: First Capital Financial Corporation, a
Florida corporation, its general partner
By:_______________________________________
Name:_____________________________________
Its:______________________________________
By: First Capital Growth Fund-XIV, a Real Estate
Limited Partnership, an Illinois limited
partnership, a general partner
By: First Capital Fund-XIV, Inc., an Illinois
corporation, its general partner
By:_______________________________________
Name:_____________________________________
Its:______________________________________
30
<PAGE>
PURCHASER:
PRENTISS PROPERTIES ACQUISITON PARTNERS, L.P., a
Delaware limited partnership
By: Prentiss Properties I, Inc., a Delaware
corporation, its general partner
By:______________________________________
Print Name:______________________________
Its:_____________________________________
31
<PAGE>
LIST OF EXHIBITS
----------------
A - Legal Description
B - Permitted Exceptions
C - Service Contracts
D - Joint Order Escrow Agreement
E - Assignment and Assumption of Leases
and Security Deposits
F - Assignment and Assumption of Service Contracts
G - Form Tenant Estoppel Certificate
H - List of Litigation
I - Violations of Law
J - Bill of Sale
K - Tangible Personal Property
L - Notice Letter to Tenants
M - Notice Letter to Vendors
N - Rent Roll
O - OSHA Letter
P - Environmental Reports
Q - Confidentiality Agreement
R - Quit Claim Assignment of Permits and General
Intangibles
S - T.I and Commissions - New Leases Approved Prior to
Date of Agreement
T - T.I. and Commissions - Existing Leases
U - Settlement of Assessed Values - Applicable Tax
and/or Calendar Years
V - Survey Certification
W - Lease Defaults - Seller
X - Audit Letter
Y - 1998 Tax Appeal Submissions
32
<PAGE>
EXHIBIT A
LEGAL DESCRIPTION
-----------------
LOT 1 IN PLAT OF CONSOLIDATION RECORDED AUGUST 20, 1984 AS DOCUMENT NO. 27219845
OF PART OF BLOCK 8 IN THE VILLAGE OF EVANSTON, A SUBDIVISION OF PART OF SECTION
13, TOWNSHIP 41 NORTH, RANGE 13 EAST OF THE THIRD PRINCIPAL MERIDIAN, AND OF
SECTIONS 7, 18, 19, TOWNSHIP 41 NORTH, RANGE 14 EAST OF THE THIRD PRINCIPAL
MERIDIAN, IN COOK COUNTY, ILLINOIS
<PAGE>
EXHIBIT B
PERMITTED EXCEPTIONS
--------------------
1. Acts of Purchaser, and those claiming by, through and under Purchaser.
2. General and special taxes and assessments for the years 1997, 1998 and
subsequent years not yet delinquent.
3. Rights of tenants as tenants only under the Leases.
4. Zoning, building and other governmental and quasi-governmental laws, codes
and regulations.
5. The land lies within the boundaries of a special service area as disclosed
by ordinance recorded as Document 95439436, and is subject to additional
taxes under the terms of said ordinance and subsequent related ordinances.
6. Grant of easement made by the City of Evanston to Commonwealth Edison for
public utility purposes over that part of the land described as Exhibit "A"
of said grant by document recorded as No. 85128528.
<PAGE>
EXHIBIT C
SERVICE CONTRACTS
-----------------
<TABLE>
<CAPTION>
- -----------------------------------------------------------------------------------------------------------
OPERATING CONTRACTS
- -----------------------------------------------------------------------------------------------------------
<S> <C>
VENDOR NAME TYPE OF SERVICE
- -----------------------------------------------------------------------------------------------------------
Lakeside Building Maintenance Cleaning & Dayporter services (2 contracts)
- -----------------------------------------------------------------------------------------------------------
Rentokil, Inc. Interior plant maintenance
- -----------------------------------------------------------------------------------------------------------
The Brickman Group, L.T.D. Landscaping & Irrigation (2 contracts)
- -----------------------------------------------------------------------------------------------------------
Illinois Recycling Services, Inc. Recycling services
- -----------------------------------------------------------------------------------------------------------
Admiral Security Services, Inc. Security
- -----------------------------------------------------------------------------------------------------------
A. W. Zengler Uniform Rental Uniform rental
- -----------------------------------------------------------------------------------------------------------
Program Professional Services, Inc. Window cleaning
- -----------------------------------------------------------------------------------------------------------
Otis Elevator Company Elevator contract
- -----------------------------------------------------------------------------------------------------------
Smithereen Exterminating Company Pest control
- -----------------------------------------------------------------------------------------------------------
BFI Waste Systems Rubbish collections
- -----------------------------------------------------------------------------------------------------------
Advent Systems, Inc. Security system
- -----------------------------------------------------------------------------------------------------------
HOH Chemicals, Inc. Water treatment
- -----------------------------------------------------------------------------------------------------------
ERG Industries Snow plowing
- -----------------------------------------------------------------------------------------------------------
International Union of Operating Engineers of Chicago, Collective Bargaining Agreement
Illinois and Vicinity Local No. 399
- -----------------------------------------------------------------------------------------------------------
Thomas A. Tully & Associates Tax consultant
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
TENANT NAME BROKER AGREEMENT
- -----------------------------------------------------------------------------------------------------------
Keith Block M.D. (Ste 390) Draper & Kramer (no separate agreement exists;
obligations to Draper & Kramer arise under
Tenant's Lease)
- -----------------------------------------------------------------------------------------------------------
Disciplined Investment Advisors, Inc. Equis
- -----------------------------------------------------------------------------------------------------------
Evanston Medical Specialists Foundation Baird & Warner
- -----------------------------------------------------------------------------------------------------------
Federal Express Corporation Mesirow Stein
- -----------------------------------------------------------------------------------------------------------
JH Ferguson & Associates Real Source
- -----------------------------------------------------------------------------------------------------------
Sachs Group, Inc. Julien Studley, Inc.
- -----------------------------------------------------------------------------------------------------------
St. Francis Hospital Corporation (Ste 106 & 108) CB Commercial
- -----------------------------------------------------------------------------------------------------------
Systat, Inc. Julien Studley
- -----------------------------------------------------------------------------------------------------------
ZS Associates, Inc. BKB Commercial
- -----------------------------------------------------------------------------------------------------------
</TABLE>
<TABLE>
<CAPTION>
- -----------------------------------------------------------------------------------------------------------
REVENUE AGREEMENTS
- -----------------------------------------------------------------------------------------------------------
<S> <C>
LICENSEE TYPE OF SERVICE
- -----------------------------------------------------------------------------------------------------------
United Parcel Service, Inc. Drop box
- -----------------------------------------------------------------------------------------------------------
Paging Network of Illinois, Inc. Antenna Site License agreement
- -----------------------------------------------------------------------------------------------------------
Ameritech Pay phones (2 contracts)
- -----------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
EXHIBIT D
JOINT ORDER ESCROW AGREEMENT
----------------------------
Exhibit D follows this page.
<PAGE>
EXHIBIT E
ASSIGNMENT AND ASSUMPTION
OF LEASES AND SECURITY DEPOSITS
-------------------------------
THIS ASSIGNMENT AND ASSUMPTION OF LEASES AND SECURITY DEPOSITS (this
"Assignment") is entered into as of the ______________ day of __________, 1998,
by and between AMERICAN NATIONAL BANK AND TRUST COMPANY OF CHICAGO, NOT
PERSONALLY, BUT SOLELY AS TRUSTEE ("Trustee") UNDER TRUST AGREEMENT DATED MARCH
14, 1991 AND KNOWN AS TRUST NUMBER 113531-09 (the "Trust"), 1800 SHERMAN
ASSOCIATES, an Illinois general partnership ("Beneficiary"; Trust and
Beneficiary are collectively referred to herein as "Assignor"), having offices
at Two North Riverside Plaza, Chicago, Illinois 60606, and
______________________, a __________ ("Assignee"), with an office at
_____________________.
1. Property. The "Property" shall mean the real property located in the
City of Evanston, County of Cook, State of Illinois, legally described in
EXHIBIT A attached to this Assignment, together with all of Assignor's right,
title and interest in and to the building, structures and other improvements
located thereon, and commonly known as "1800 Sherman".
2. Leases. The "Leases" shall mean all leases affecting the Property, or
any part thereof, which leases are listed on EXHIBIT B attached hereto. "Lease"
shall mean any one of the Leases.
3. Security Deposits. "Security Deposits" shall mean all unapplied
security deposits held by Assignor that are set forth on EXHIBIT C attached
hereto for which Purchaser received a credit on the Closing Statement (as
defined in the Contract) or evidenced by a letter of credit assigned to
Purchaser at Closing.
4. Contract. "Contract" shall mean that certain Real Estate Sale
Agreement dated _______________, 1998 by and between Assignor, as Seller, and
____________________, as Purchaser, for the purchase and sale of the Property.
5. Assignment. For good and valuable consideration received by Assignor,
the receipt and sufficiency of which are hereby acknowledged, Assignor hereby
assigns to Assignee the entire right, title and interest of Assignor in and to
the Leases and the Security Deposits as applicable to the period from and after
the date hereof.
6. Assumption. Assignee hereby assumes all of the covenants, agreements
and obligations of Assignor under or in connection with the Leases accruing with
respect to the period from and after the date hereof, and Assignee further
assumes all liability of Assignor for the proper refund or return of the
Security Deposits and the interest on the Security Deposits if, when and as
required by the Leases or otherwise by law (the "Security Deposit Interest"). In
addition, Assignee agrees to pay (i) in accordance with Section 4(C)(i)(c) of
the Contract, the brokerage fees, brokerage or leasing commissions and tenant
improvements costs and/or allowances payable in connection with the New Leases
(as defined in the Contract) set forth on EXHIBIT D attached hereto or as
otherwise described on EXHIBIT D attached hereto; and (ii) in accordance with
Section 4(C)(i)(d) of the Contract, all brokerage fees, leasing commissions,
tenant improvement costs and/or allowances payable in connection with the Leases
set forth on EXHIBIT E attached hereto or as otherwise described on EXHIBIT E
attached hereto not paid
<PAGE>
as of the date hereof. The matters assumed by Assignee under this Section 6 are
collectively referred to herein as the "Assumed Obligations".
7. Indemnification by Assignee. Assignee hereby unconditionally,
absolutely and irrevocably agrees to indemnify and hold Assignor harmless of,
from and against any and all costs, claims, obligations, damages, penalties,
causes of action, losses, injuries, liabilities and expenses, including, without
limitation, reasonably attorneys' fees, arising out of, in connection with or
accruing under or with respect to the Assumed Obligations.
8. Indemnification by Assignor. Assignor hereby unconditionally,
absolutely and irrevocably agrees, during the one hundred eighty (180) day
period after the date of this Assignment (the "Indemnification Period"), to
indemnify and hold Assignee harmless of, from and against any and all costs,
claims, obligations, damages, penalties, causes of action, losses, injuries,
liabilities and expenses, including, without limitation, reasonable attorneys'
fees, arising out of, in connection with or accruing under the Leases with
respect to the period prior to the date of this Assignment except to the extent
same are included in the Assumed Obligations (individually, an "Indemnified
Matter", and collectively, the "Indemnified Matters"). The Indemnified Matters
shall not include, and Assignor shall not be liable in any way to Assignee, any
tenant or any other party in connection with or with respect to, any statement,
allegation or matter: (i) disclosed in any Estoppel Certificate (as defined in
the Contract), or (ii) the existence or the substance of which were contained in
any of the Pre-Closing Disclosures or the Inspection Period Disclosures (as such
terms are defined in the Contract).
9. Enforcement. If Assignor or Assignee must resort to a court of law or
equity in order to enforce the provisions of this Assignment as against the
other, the non-prevailing party shall pay the reasonable attorney's fees and
expenses of the prevailing party.
10. Third Parties. Except as set forth in Section 12 of this Assignment,
no third party shall have the benefit of any of the provisions of this
Assignment, nor is this Assignment made with the intent that any person or
entity other than Assignor or Assignee rely hereon.
11. Limited Liability. By accepting this Assignment, Assignee expressly
understands and agrees that any recovery against Assignor that Assignee may be
entitled to as a result of any claim, demand or cause of action that Assignee
may have against Assignor with respect to this Assignment (including, without
limitation, any Indemnified Matter) shall only be recoverable against Assignor
as provided in Section 10(P) of the Contract.
12. Successors and Assigns. This Assignment shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and
assigns.
13. Counterparts. This Assignment may be executed in any number of
identical counterparts, any or all of which may contain signatures of fewer than
all of the parties but all of which taken together shall constitute a single
instrument.
14. Trustee Exculpation. This Assignment is executed by the undersigned
Trustee, not personally but solely as Trustee in the exercise of the power and
authority conferred upon and invested in it as trustee under the Trust. It is
expressly understood and agreed by all parties to this Assignment that all the
warranties, indemnities, representations, covenants, undertakings and
Assignments herein made on the part of the Trustee are undertaken by the Trustee
solely in the Trustee's capacity as Trustee and not personally. No personal
liability or personal responsibility is assumed by or shall at any time be
2
<PAGE>
asserted or enforceable against such Trustee on account of any warranty,
indemnity, representation, covenant, undertaking or Assignment of the Trustee in
this Assignment.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY BLANK]
3
<PAGE>
[signature page attached to Assignment and Assumption of Leases and Security
Deposits]
IN WITNESS WHEREOF, Assignor and Assignee have executed this Assignment the
day and year first above written.
TRUST:
AMERICAN NATIONAL BANK AND TRUST COMPANY OF
CHICAGO, NOT PERSONALLY, BUT SOLELY AS TRUSTEE
UNDER TRUST AGREEMENT DATED MARCH 14, 1991 AND
KNOWN AS TRUST NUMBER 113531-09
By:_____________________________________________
Name:___________________________________________
Its:____________________________________________
BENEFICIARY:
1800 SHERMAN ASSOCIATES, an Illinois general
partnership
By: First Capital Income and Growth Fund-Series
XII, an Illinois limited partnership, a general
partner
By: First Capital Financial Corporation, a
Florida corporation, its general partner
By:_____________________________________
Name:___________________________________
Its:____________________________________
By: First Capital Growth Fund-XIV, a Real Estate
Limited Partnership, an Illinois limited
partnership, a general partner
By: First Capital Fund-XIV, Inc., an Illinois
corporation, its general partner
By:_____________________________________
Name:___________________________________
Its:____________________________________
4
<PAGE>
ASSIGNEE:
PRENTISS PROPERTIES ACQUISITON PARTNERS, L.P., a
Delaware limited partnership
By: Prentiss Properties I, Inc., a Delaware
corporation, its general partner
By:____________________________________________
Print Name:____________________________________
Its:___________________________________________
EXHIBITS
--------
A - Legal Description of the Property
B - List of Leases
C - Security Deposits
D - T.I. and Commissions - New Leases
E - T.I. and Commissions - Existing Leases
5
<PAGE>
EXHIBIT F
ASSIGNMENT AND ASSUMPTION OF SERVICE CONTRACTS
----------------------------------------------
THIS ASSIGNMENT AND ASSUMPTION OF SERVICE CONTRACTS (this "Assignment") is
entered into as of the ____ day of __________, 1998 by and between AMERICAN
NATIONAL BANK AND TRUST COMPANY OF CHICAGO, NOT PERSONALLY, BUT SOLELY AS
TRUSTEE ("Trustee") UNDER TRUST AGREEMENT DATED MARCH 14, 1991 AND KNOWN AS
TRUST NUMBER 113531-09 (the "Trust"), 1800 SHERMAN ASSOCIATES, an Illinois
general partnership ("Beneficiary"; Trust and Beneficiary are collectively
referred to herein as "Assignor"), having offices at Two North Riverside Plaza,
Chicago, Illinois 60606, and ________________, a __________ ("Assignee"), with
an office at ________________________________.
1. Property. The "Property" shall mean the real property located in the
City of Evanston, County of Cook, State of Illinois, legally described in
EXHIBIT A attached to this Assignment, together with all of Assignor's right,
title and interest in and to the building, structures and other improvements
located thereon, and commonly known as "1800 Sherman".
2. Contract. "Contract" shall mean that certain Real Estate Sale
Agreement dated _______________, 1998 by and between Assignor, as Seller, and
_________________, as Purchaser, for the purchase and sale of the Property.
3. Service Contracts. "Service Contracts" shall mean the service
contracts entered into with respect to the ownership and operation of the
Property that are listed on EXHIBIT B attached to this Assignment.
4. Assignment. For good and valuable consideration received by Assignor,
the receipt and sufficiency of which are hereby acknowledged, Assignor hereby
assigns to Assignee the entire right, title and interest of Assignor in and to
the Service Contracts as applicable to the period from and after the date
hereof.
5. Assumption. Assignee hereby assumes all of the covenants, agreements
and obligations of Assignor under or in connection with the Service Contracts
accruing with respect to the period from and after the date hereof.
6. Enforcement. If Assignor or Assignee must resort to a court of law or
equity in order to enforce the provisions of this Assignment as against the
other, the non-prevailing party shall pay the reasonable attorney's fees and
expenses of the prevailing party.
7. Third Parties. Except as set forth in Section 10 of this Assignment,
no third party shall have the benefit of any of the provisions of this
Assignment, nor is this Assignment made with the intent that any person or
entity other than Assignor or Assignee shall rely hereon.
8. No Representations or Warranties. This Assignment shall not be
construed as a representation or warranty by Assignor as to the transferability
of the Service Contracts, and Assignor shall have no liability to Assignee in
the event that any or all of the Service Contracts (i) are not transferable to
Assignee or (ii) are canceled or terminated by reason of this assignment or any
acts of Assignee.
<PAGE>
9. Limited Liability. By accepting this Assignment, Assignee expressly
understands and agrees that any recovery against Assignor that Assignee may be
entitled to as a result of any claim, demand or cause of action that Assignee
may have against Assignor with respect to this Assignment shall only be
recoverable against Assignor as provided in Section 10(P) of the Contract.
10. Successors and Assigns. This Assignment shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and
assigns.
11. Counterparts. This Assignment may be executed in any number of
identical counterparts, any or all of which may contain signatures of fewer than
all of the parties but all of which taken together shall constitute a single
instrument.
12. Trustee Exculpation. This Assignment is executed by the undersigned
Trustee, not personally but solely as Trustee in the exercise of the power and
authority conferred upon and invested in it as trustee under the Trust. It is
expressly understood and agreed by all parties to this Assignment that all the
warranties, indemnities, representations, covenants, undertakings and
Assignments herein made on the part of the Trustee are undertaken by the Trustee
solely in the Trustee's capacity as Trustee and not personally. No personal
liability or personal responsibility is assumed by or shall at any time be
asserted or enforceable against such Trustee on account of any warranty,
indemnity, representation, covenant, undertaking or Assignment of the Trustee in
this Assignment.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY BLANK]
2
<PAGE>
[signature page attached to Assignment and Assumption of Service Contracts]
IN WITNESS WHEREOF, Assignor and Assignee have executed this Assignment the
day and year first above written.
TRUST:
AMERICAN NATIONAL BANK AND TRUST COMPANY OF
CHICAGO, NOT PERSONALLY, BUT SOLELY AS TRUSTEE
UNDER TRUST AGREEMENT DATED MARCH 14, 1991 AND
KNOWN AS TRUST NUMBER 113531-09
By:______________________________________________
Name:____________________________________________
Its:_____________________________________________
BENEFICIARY:
1800 SHERMAN ASSOCIATES, an Illinois general
partnership
By: First Capital Income and Growth Fund-Series
XII, an Illinois limited partnership, a general
partner
By: First Capital Financial Corporation, a
Florida corporation, its general partner
By:______________________________________
Name:____________________________________
Its:_____________________________________
By: First Capital Growth Fund-XIV, a Real Estate
Limited Partnership, an Illinois limited
partnership, a general partner
By: First Capital Fund-XIV, Inc., an Illinois
corporation, its general partner
By:______________________________________
Name:____________________________________
Its:_____________________________________
3
<PAGE>
ASSIGNEE:
PRENTISS PROPERTIES ACQUISITON PARTNERS, L.P., a
Delaware limited partnership
By: Prentiss Properties I, Inc., a Delaware
corporation, its general partner
By:_____________________________________________
Print Name:_____________________________________
Its:____________________________________________
EXHIBITS
--------
A - Legal Description of Property
B - Service Contracts
4
<PAGE>
EXHIBIT G
FORM TENANT ESTOPPEL CERTIFICATE
--------------------------------
1800 Sherman Associates
c/o Equity Office
Two North Riverside Plaza
Suite 2200
Chicago, Illinois 60606
Attention: Ms. Alissa Schneider
[Purchaser Name & Address]
THIS IS TO CERTIFY
TO: Prentiss Properties Acquisition Partners, L.P., Prentiss Properties Trust,
or their successors or assigns ("Prospective Purchaser") and 1800 Sherman
Associates, an Illinois general partnership ("Landlord")
1. The undersigned is the tenant under that certain lease dated
________________ with Landlord, with respect to those certain premises
consisting of approximately _____ square feet in Suite No. ____ (the
"Premises") of that certain building located at 1800 Sherman, Evanston,
Illinois (the "Building").
2. The lease is valid and [to Tenant's knowledge, is] in full force and effect
on the date hereof. Except as set forth below, the lease represents the
entire agreement between the Landlord and the Tenant with respect to the
Premises, and, except as set forth below, is the only agreement, oral or
written, between the Landlord and the Tenant affecting or relating to the
Premises. Except as set forth below, the lease has not been modified,
changed, altered, assigned, supplemented or amended in any way: (all
amendments, etc. to be listed here)
___________________________________________________________________________
___________________________________________________________________________
___________________________________________________________________________
(The lease, as modified, changed, altered, assigned, supplemented or
amended as provided above, is referred to herein as the "Lease").
3. A true, correct and complete copy of the Lease is attached hereto as
EXHIBIT A.
4. Tenant has no option or right to purchase all or any part of the Building.
5. Tenant has accepted and now occupies the Premises for purposes permitted
under the Lease. The expiration date of the Lease term (other than
unexercised options to extend the Lease) will occur on
______________________.
6. Landlord has complied with all of its construction and [to Tenant's
knowledge, all] other obligations under the Lease to this date, and Tenant
is fully obligated to pay, and is paying, the rent and other charges due
thereunder, and is fully obligated to perform, and is performing, all of
the other obligations of Tenant under the Lease [to Tenant's knowledge,]
without right of counterclaim, offset or defense, except as specifically
provided in the Lease.
<PAGE>
7. No one except the Tenant and its employees occupies the Premises. Tenant
has not sublet the Premises, or any part thereof, or assigned any of its
rights under the Lease, except as indicated herein:
___________________________________________________________________________
___________________________________________________________________________
___________________________________________________________________________
(if none, state "none").
8. Tenant has paid rent for the Premises for the period up to and including
_______________, 19__. The current base rent payable by Tenant is
$__________ per month. The current common area maintenance and other
charges payable by Tenant (including the Tenant's share of real estate
taxes, insurance and operating expenses) is $__________ per month. The base
year under the Lease is __________ and the base year amount is $_________.
No such rent has been paid more than one (1) month in advance of its due
date except as indicated herein:
___________________________________________________________________________
___________________________________________________________________________
___________________________________________________________________________
(if none, state "none").
9. Tenant's security deposit is $_________, which security deposit has been
deposited with Landlord and is not subject to increase for interest or
other credit due to Tenant.
10. There are no uncured defaults by Landlord or Tenant under the Lease and, to
Tenant's knowledge, no event has occurred and no condition exists which,
with the giving of notice or the lapse of time or both, will constitute a
default under the Lease. Tenant has no existing defenses, offsets or
credits against the enforcement of this Lease by the Landlord or the
payment of rent for the Premises.
11. No actions, whether voluntary or otherwise, are pending against the Tenant
under the bankruptcy laws of the United States or any state thereof.
12. Tenant's current notice address is set forth in the Lease, or is as set
forth below:
___________________________________________________________________________
___________________________________________________________________________
___________________________________________________________________________
13. The undersigned is authorized by all necessary action of Tenant to execute
this Tenant Estoppel Certificate on behalf of Tenant.
14. Landlord has not, as an inducement, assumed any of Tenant's lease
obligations at other buildings that remain to be performed after the date
hereof and has made no agreements with Tenant covering free rent, partial
rent, rebate of rental payments or any other type of rental concession with
respect to the period from and after the date hereof, except as set forth
below:
15. All conditions of the Lease to be performed by Landlord and necessary to
the enforceability of the Lease have, to Tenant's knowledge, been
satisfied.
2
<PAGE>
16. Tenant acknowledges that the statements in this Tenant's Estoppel
Certificate may be relied upon by Landlord, Prospective Purchaser, Prentiss
Properties Trust, a real estate investment trust, their respective
affiliates, and their successors and assigns, Lehman Brothers Holdings,
Inc., d/b/a Lehman Capital, a Division of Lehman Brothers Holdings, Inc.;
Lehman Brothers Realty Corporation; Bank One Texas, N.A., as Administrative
Agent; Nations Bank of Texas, N.A., as Documentation Agent; and to each of
the Lenders pursuant to that certain Credit Agreement between Borrower, the
Administrative Agent, the Documentation Agent and any other lender which
now or hereafter holds a lien on the Building, for itself or as agent for
itself and other lenders, and any such lender's or lenders' successors and
assigns.
Dated this _____ day of __________, 1998.
TENANT:
-----------------------------------------
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
<PAGE>
EXHIBIT H
LIST OF LITIGATION
------------------
None.
<PAGE>
EXHIBIT I
VIOLATIONS OF LAW
-----------------
None.
<PAGE>
EXHIBIT J
BILL OF SALE
------------
SPECIAL WARRANTY BILL OF SALE
-----------------------------
THIS SPECIAL WARRANTY BILL OF SALE (this "Bill of Sale") is executed as of
the ____ day of _________, 1998, by 1800 SHERMAN ASSOCIATES, an Illinois general
partnership, ("Seller"), having offices at Two North Riverside Plaza, Chicago,
Illinois 60606, in favor of __________________, a __________ ("Purchaser"), with
an office at ___________________________________________.
1. Property. The "Property" shall mean the real property located in the
City of Evanston, Illinois, legally described in EXHIBIT A attached to this Bill
of Sale, together with all of Seller's right, title and interest in and to the
building, structures and other improvements located thereon, and commonly known
as "Meidinger Tower".
2. Personal Property. The "Personal Property" shall mean the Tangible
Personal Property as defined in that certain Real Estate Sale Agreement dated
the ___ day of _____________, 1998 (as amended, the "Contract"), by and between
Seller and American National Bank and Trust Company of Chicago, not personally,
but solely as Trustee under Trust Agreement dated March 14, 1991 and known as
Trust Number 113531-09, as the "Seller" thereunder, and ____________, as the
"Purchaser" thereunder with respect to the purchase and sale of the Real
Property and other property as described therein, as such Personal Property is
more particularly described on attached EXHIBIT C.
3. Sale. For good and valuable consideration received by Seller, the
receipt and sufficiency of which are hereby acknowledged, Seller hereby sells,
assigns and transfers the Personal Property to Purchaser free of any liens or
encumbrances other than those matters set forth on EXHIBIT B attached hereto
(the "Permitted Exceptions"). Seller covenants and agrees to warrant specially
and forever defend title to the Personal Property unto Purchaser against all and
every person or persons lawfully claiming the whole or any part thereof by,
through or under Seller, and none other, but subject in any event to the
Permitted Exceptions. Except as set forth in the two (2) preceding sentences,
Seller makes no warranties or representations as to the Personal Property. The
Personal Property is transferred "AS IS, WHERE IS" and ALL WARRANTIES OF
QUALITY, FITNESS AND MERCHANTABILITY ARE HEREBY EXCLUDED.
4. Limited Liability. By accepting this Bill of Sale, Purchaser expressly
understands and agrees that any recovery against Seller that Purchaser may be
entitled to as a result of any claim, demand or cause of action that Purchaser
may have against Seller with respect to this Bill of Sale shall only be
recoverable against Seller as provided in Section 10(P) of the Contract.
IN WITNESS WHEREOF, Seller has executed this Bill of Sale the day and year
first above written.
SELLER:
<PAGE>
EXHIBIT K
TANGIBLE PERSONAL PROPERTY
--------------------------
Tools
<TABLE>
<CAPTION>
Item Quantity
- --------------------------------------------------------------------------------
<S> <C>
Simpson 260 volt ohm meter 1
Dwyer 470-1 hand held thermal anemometer 1
3X734B Fluorescent trouble light 1
#6507 Milwaukee sawsall (no case) 1
Skill jig saw 1
Milwaukee 3/8" drill 1
Arrow stapler 1
Ilco key machine 1
Amprobe ACD-2 digital clamp on amp meter 1
Skill circular saw 1
Greenlee 6706 boltage and continuity tester 1
Tif 5500 Halogen leak detector 1
Dayton 22425Q bench grinder 1
12" cresent wrench 1
8" cresent wrench 1
12" channel locks 1
Combination wrenches 1 1/8-3/8" 2 Sets
1/2" drive socket set 1
3/8" drive socket set 1
Wire strippers 3
Pry bar 2
Claw hammer 1
#3 sledge hammer 1
Rubber mallet 1
Pop rivet tool 1
Grease gun (12" flexible hose) 1
Oilers 3
Needle nose pliers 2
Wire cutter 1
H.K.P size 0 bolt cutter 1
Dayton Model 6X-628 tap & die set 1
#408 C-Clamps 2
#406 C-Clamp 2
#404 C-Clamp 2
Handsaw 3
Hacksaw 1
Miter saw 1
Ridgid E-110 pipe wrench 1
Amprobe AM-1250 multi-meter 1
14" channel locks 1
36" pipe wrench 1
24" pipe wrench 1
18" pipe wrench 1
14" pipe wrench 1
10" pipe wrench 1
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
Item Quantity
- --------------------------------------------------------------------------------
<S> <C>
Allen wrenches 1 Set
Diamond sheet metal cutters 1
Flare tool kit 2
Ball pin hammer 2
Propane torch 1
Acytelene torch 1
Wooden saw horses 2
Roll cart 1
Genie model PLC-24 (hi-jacker) 1
8HP snow blower 1
3HP Toro lawn mower 21" 1
Tool box 1
4' level 1
Soft face hammer 1
Soldering iron 1
Tool belt 1
File set 1
Pick 1
2 Wheel carts 2
Appliance cart 1
Rake 3
Hoe 1
Flat shovel 2
Rubbermaid #1005 cart 2
8' fiberglass ladder 2
20' extension ladder 1
6' fiberglass ladder 2
6' wooden ladder 1
Genie Quick-Stand 2
Fertilizer spreader 1
Large Salt spreader 1
Hardwood dollies 2
Teel 5HP gasoline centrifugal pumps & 3' hose 1
200' 3" PVC discharge hose 1
Wheelbarrow 1
50" X 3 X 12 gauge extension cord 1
50' X 3 X 16 gauge extension cord 2
Diamond monkey wrench 1
Screw drivers 1 Set
Dremel tool 1
Nut drivers 1 Set
Vise grips 1 Set
Model 1212 weed eater (electrical) 1
Hedge trimmer 1
Wayne submersible utility pump 1
Utility knife 1
Putty knife 2
200' 5/8" garden hose 2
Linemans pliers 2
Flashlight 3
</TABLE>
2
<PAGE>
<TABLE>
<CAPTION>
Item Quantity
- --------------------------------------------------------------------------------
<S> <C>
Chain wrench cresent 1
Spud wrench 1
Wire brush 1
Screw-bit set 1
Hand notcher 1
Tensioning tool 1
Coping saw 1
Hew-bit set 1
Tapcon tool 1
O-Ring set 1
Spring Set 1
Platform truck 1
Racks 4' X 8' 2
Flatline hose (300') 1
Hose reel 1
Leaf Blower 1
Motorola HT 90 2-way radios w/chargers 5
B&D Cordless drill (12 volt) 1
Wet/Dry vac 1
Heat Gun 1
Combination Square 1
Rafter Square 1
Tape Measure 2
Drill sets 3
Step drill set 1
Hole saw kit 1
Vise 1
1/4" drive set 1
Electric rodder 1
Hand toilet rodder 1
Toro S-2000 snow thrower 1
3 jaw wheel puller 1
3.5 HP speeddrive compressor 1
Ryobi 31CC edger 1
Assorted nuts & bolts trays 16
Snap-ring pliers 1
Anvil 1
Drill press vise 1
Drill press 1
Bar clamps 2
Hand stamps 1
Space heaters 4
Fire cabinet 1
Push brooms 5
Pressure washer 1
B&D rotary hammer drill 1
Digital thermometer 1
</TABLE>
3
<PAGE>
Penthouse Furniture
<TABLE>
<CAPTION>
Item Quantity
- --------------------------------------------------------------------------------
<S> <C>
Service counter 1
Lockers 3
Stool 1
Typing stand 1
3' x 6' tables 2
Metal Desk 1
Credenza (metal) 1
3' X 5" cabinet 3
Office chair 1
Work bench 1
Dell computer (386 SX) 1
HP laserjet printer 1
Security
Lathem time clock 1
IBM 386 PS/Valuepoint 1
C-Cure system 1
Epson Dot Matrix Printer 1
Management Office
Artwork 9
Limited Edition prints (from previous management) 6
Office chairs 12
Side table 1
Computers 2
Printer 1
Backpacks 2
Modems 2
Qwikshare II 1
Copier 1
Paper Shredder 1
Typewriter 1
Typewriter stand 1
4 drawer file cabinets 3
Conference room table 1
Credenzas 3
Plain paper fax machine 2
6' wood table 1
4' wood table 1
Microwave 1
Shelving 1
Desks 2
Radios 2
Refrigerator 1
60 cup coffee makers 2
</TABLE>
4
<PAGE>
<TABLE>
<CAPTION>
Misc.
Item Quantity
- --------------------------------------------------------------------------------
<S> <C>
Christmas Tree 1
Wreaths 2
Christmas decorations 1
Menorah 1
Keycard entrance readers 1
Walk-out mats 1
Parking Lot
Cincinnati Time Gates 4
Parking lot full sign 1
Counter 1
Token box 1
Card readers 4
Engineer's Computer
Dell 0AFES
Dell Color Monitor U45301P034
Printer 2531J00201
Keyboard 43197
Misc. Office Equipment
Panasonic Fax Machine 01951100226
Sharp Fax Machine (Not in use) X6770
IBM Typewriter 118170011PNX47
Sharp SF-8300 Copy Machine A8291
Fellowes Paper Shredder 030961010A00100304302
</TABLE>
5
<PAGE>
EXHIBIT L
---------
NOTICE LETTER TO TENANTS
------------------------
[Letterhead of Equity Office Properties Management Corp.]
NOTICE TO TENANTS
______________, 1998
Re: 1800 Sherman, Evanston, Illinois (the "Property")
Dear Tenant:
This is to notify you that the Property has been sold to ______________
__________________, and that ___________________________ has been retained by
the new owner as managing agent of the building.
Any security or other deposits and any prepaid rents under your lease have
been transferred to the new owner.
Effective immediately, all rental payments with the exception of all
amounts that are unpaid for periods prior to the date hereof, notices to the
Landlord, and correspondence pursuant to your lease should be mailed to the
following address:
Rents: Notices:
___________________________________ ____________________________________
___________________________________ ____________________________________
___________________________________ ____________________________________
Attention: ________________________
All amounts that are unpaid for periods prior to the date hereof are to be
paid to the prior owner of the property in case of the undersigned, Equity
Office Properties Management Corp.
Additionally, please have new Certificates of Insurance issued naming
____________________ as an additional insured. Please deliver said Certificate
to new owner at the "Notices" address set forth above.
Very truly yours,
EQUITY OFFICE PROPERTIES MANAGEMENT
CORP., a Delaware corporation, as agent
By: ____________________________________
Name:___________________________________
Its: ___________________________________
<PAGE>
EXHIBIT M
---------
NOTICE LETTER TO VENDORS
------------------------
[Letterhead of Equity Office Properties Management Corp.]
__________________, 1998
VIA TELECOPY AND
- ----------------
CERTIFIED MAIL, RETURN RECEIPT REQUESTED
- ----------------------------------------
[Vendor]
_________________________
_________________________
Re: Sale of 1800 Sherman
Evanston, Illinois (the "Property")
-----------------------------------
Dear Service Provider:
This is to notify you that the Property has been sold to ________________
__________, a _________________ ("Purchaser"), and that ______________________,
having an office at _____________________________, has been retained by the
Purchaser of the Property as managing agent of the building. Purchaser has
assumed all of the obligations of the undersigned under the [license
agreements/service contracts] accruing with respect to the period from and after
the date hereof. All notices to Purchaser should be sent to Purchaser at the
office of the building, and should be sent or delivered to such address in the
manner provided in the [license agreement/service contract].
Very truly yours,
EQUITY OFFICE PROPERTIES MANAGEMENT
CORP., a Delaware corporation, as agent
By: ____________________________________
Name:___________________________________
Its: ___________________________________
<PAGE>
EXHIBIT N - RENT ROLL
---------
<TABLE>
<CAPTION>
Estimated
Operating
Expense Storage Aged
Monthly Pass- Rent Delin-
Base Rent through Payable quincies
Security Sq. Exp. Payable as Payable as as of as of
Suite # Tenant Name Deposit/(2)/ Ft. Date of 6/1/98 Base Year of 6/1/98 5/1/98 6/15/98
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
203 Academic Counseling
Services, Inc. $ 1,572.25 873 3/31/03 $ 1,891.50 1998 $ 127.34 $ 119.52 $ 130.00
- ------------------------------------------------------------------------------------------------------------------------------------
513 Keith Block, M.D. 2,501.15 1,788 8/31/99 3,352.50 1994 241.01 0.00 3,729.54
- ------------------------------------------------------------------------------------------------------------------------------------
390 Keith Block, M.D. 0.00 3,230 7/31/02 6,460.00 1997 135.47 0.00 6,439.41
- ------------------------------------------------------------------------------------------------------------------------------------
515 Keith Block, M.D. 0.00 3,179 8/31/99 5,960.63 1994 428.50 103.14 6,837.27
- ------------------------------------------------------------------------------------------------------------------------------------
511 Steven V.L. Brown,
M.D., S.C. 0.00 3,582 5/31/03 7,811.75 1992 523.06 0.00 705.00
- ------------------------------------------------------------------------------------------------------------------------------------
300 Cass Communica-
tions, Inc. 0.00 12,560 7/31/03 21,980.00 1993 2,116.35 1,085.73 0.00
- ------------------------------------------------------------------------------------------------------------------------------------
108 St. Francis Hospi-
tal Corporation 7,345.00 4,005 8/31/00 7,676.25 1995 267.94 0.00 26,445.85
- ------------------------------------------------------------------------------------------------------------------------------------
211/205/209/204 Disciplined Invest-
ment Advisors, Inc. 0.00 6,681 9/30/06 13,083.63 1996 458.48 200.69 0.00
- ------------------------------------------------------------------------------------------------------------------------------------
301 Thomas A. Doan,
d/b/a Estima 3,157.00 1,968 1/31/00 3,681.80 1994 265.27 0.00 0.00
- ------------------------------------------------------------------------------------------------------------------------------------
404 Evanston Medical
Specialists Founda-
tion 4,755.08 2,654 8/31/98 6,068.81 1986 1,549.83 468.10 326.20
- ------------------------------------------------------------------------------------------------------------------------------------
404A Evanston Medical
Specialists Founda-
tion 0.00 1,394 11/30/98 3,187.61 1988 738.79 0.00 0.00
- ------------------------------------------------------------------------------------------------------------------------------------
110 Federal Express
Corporation 0.00 1,165 3/31/02 2,766.88 1997 48.86 0.00 0.00
- ------------------------------------------------------------------------------------------------------------------------------------
402 JH Ferguson &
Associates, Inc./(3)/ 0.00 3,647 12/31/03 6,610.19 1994 491.59 0.00 0.00
- ------------------------------------------------------------------------------------------------------------------------------------
517 James R. Hodur,
D.D.S., Ltd. 3,658.33 2,195 12/31/01 4,368.24 1991 365.27 0.00 0.00
- ------------------------------------------------------------------------------------------------------------------------------------
105 Fonda & Niko, Inc.
d/b/a Kaffeehaus
1800 European Cafe
& Restaurant 4,500.00 2,431 5/31/01 4,815.00 N/A 0.00 140.34 253.09
- ------------------------------------------------------------------------------------------------------------------------------------
204 LIM Management, Inc. 0.00 775 12/31/98 1,614.58 1994 104.46 0.00 0.00
- ------------------------------------------------------------------------------------------------------------------------------------
100 National Equipment
Service, Inc. 5,258.38 1,357 5/31/02 2,685.73 1997 56.92 0.00 0.00
- ------------------------------------------------------------------------------------------------------------------------------------
103 Olde Discount
Corporation 4,628.75 2,415 12/16/00 4,628.75 1995 161.38 0.00 0.00
- ------------------------------------------------------------------------------------------------------------------------------------
102 Papageorge Hair
Salon 1,625.00 975 12/31/01 2,275.00 1997 36.18 0.00 2,449.18
- ------------------------------------------------------------------------------------------------------------------------------------
510 Price Marketing
Group, Inc. 0.00 1,542 9/15/99 2,515.94 1994 207.85 110.00 0.00
- ------------------------------------------------------------------------------------------------------------------------------------
504 Sachs Group, Inc. 0.00 1,502 1/31/02 2,847.54 1998 0.00 0.00 0.00
- ------------------------------------------------------------------------------------------------------------------------------------
508/600 Sachs Group, Inc. 0.00 16,524 6/30/04 31,326.75 Suite 508-1997 2,063.26 1,058.62 0.00
Suite 600-1994
- ------------------------------------------------------------------------------------------------------------------------------------
STOR Shared Technologies
Fairchild Telecom,
Inc./(1)/ 241.67 290 3/31/00 870.00 N/A 0.00 0.00 870.00
- ------------------------------------------------------------------------------------------------------------------------------------
106 St. Francis Hospi-
tal Corporation 0.00 2,367 8/31/00 4,536.75 1995 158.27 0.00 4,906.10
- ------------------------------------------------------------------------------------------------------------------------------------
800 Systat, Inc. 19,034.83 10,320 8/31/00 18,705.00 1993 1,847.88 0.00 19,807.00
- ------------------------------------------------------------------------------------------------------------------------------------
601 Dr. Richard Tye,
Ltd. 0.00 2,204 1/31/02 4,729.42 1995 147.28 76.50 0.00
- ------------------------------------------------------------------------------------------------------------------------------------
208 Arthur Winter/(4)/ 2,626.75 2,022 9/30/03 3,713.63 1991 269.98 0.00 0.00
- ------------------------------------------------------------------------------------------------------------------------------------
500 Johnathan Yahav,
D.D.S. & Associates
P.C. 1,932.00 1,104 10/31/03 2,116.00 1993 186.92 0.00 0.00
- ------------------------------------------------------------------------------------------------------------------------------------
502 Yamada & Associates
P.C. 2,411.92 1,405 12/31/99 2,529.00 1994 189.38 0.00 0.00
- ------------------------------------------------------------------------------------------------------------------------------------
700/800/200 ZS Associates, Inc. 0.00 29,735 12/31/04 46,938.09 1994 3,976.31 425.33 0.00
- ------------------------------------------------------------------------------------------------------------------------------------
400 ZS Associates, Inc. 0.00 2,648 4/30/00 4,799.50 1997 110.18 0.00 0.00
- ------------------------------------------------------------------------------------------------------------------------------------
401 ZS Associates, Inc. 0.00 6,075 12/31/04 10,757.81 1997 254.80 0.00 0.00
- ------------------------------------------------------------------------------------------------------------------------------------
65,248.11 134,612 $247,304.28 $17,528.81 $3,787.97 $72,898.64
</TABLE>
/(1)/ This is a telecommunication license agreement
/(2)/ Paging Network of Illinois also has a security deposit of $500.00
/(3)/ Effective 1/1/99 the Base Year is changed to 1999
/(4)/ Effective 1/1/98 the Base Year is changed to 1998
<PAGE>
EXHIBIT O
OSHA LETTER
-----------
_________________, 1998
[Purchaser]
Re: Transmittal of Information Regarding Asbestos-Containing
Material and Presumed Asbestos-Containing Material
Ladies and Gentlemen:
As you know, the Occupational Safety and Health Administration ("OSHA") has
enacted regulations (the "OSHA Regulations") which require building owners to
provide information regarding the presence, location and quantity of asbestos
containing material ("ACM") and presumed ACM ("PACM") to various building
occupants, including employers of employees who lease space within the owner's
building. In addition, the OSHA Regulations, specifically 29 C.F.R.
(S)1910.1001(j)(2)(ii) and 29 C.F.R. (S)1926.1101(n)(6), require building owners
to keep records of all information required to be maintained by the OSHA
Regulations and to transmit such records to subsequent owners at or before the
time of closing.
[Seller] ("Seller"), has, prior to the date of this letter, provided [name
of Purchaser] ("Purchaser") with copies of information required to be maintained
and transmitted as described above regarding ACM and PACM at the property
located at 1800 Sherman, Evanston, Illinois, including copies of notices to
tenants and any related asbestos sampling results and reports in our possession
(such information, notices and reports being referred to herein collectively as
the "Reports"). A list of such Reports is set forth on SCHEDULE 1 attached
hereto.
The undersigned makes no representation, warranty, promises, covenants,
agreements or guarantees of any kind or character whatsoever, express or
implied, oral or written, past, present or future, of, as to, concerning or with
respect to the information and documentation transmitted herewith including
without limitation, the accuracy or completeness of such Reports, the Reports'
compliance with the OSHA Regulations, or Seller's compliance with the OSHA
Regulations.
<PAGE>
We request that you acknowledge receipt of this letter and the Reports by
signing below and forwarding an executed copy to Seller.
Sincerely,
BENEFICIARY:
1800 SHERMAN ASSOCIATES, an Illinois general partnership
By: First Capital Income and Growth Fund-Series XII, an
Illinois limited partnership, a general partner
By: First Capital Financial Corporation, a Florida
corporation, its general partner
By:
----------------------------------------
Name:
--------------------------------------
Its:
--------------------------------------
By: First Capital Growth Fund-XIV, a Real Estate
Limited Partnership, an Illinois limited
partnership, a general partner
By: First Capital Fund-XIV, Inc., an Illinois
corporation, its general partner
By:
----------------------------------------
Name:
--------------------------------------
Its:
--------------------------------------
Acknowledged receipt of this letter and the
Reports this _____ day of _______________, 1998.
[Purchaser]
By:
----------------------------------------
Name:
--------------------------------------
Its:
--------------------------------------
2
<PAGE>
SCHEDULE 1
----------
TO
--
OSHA LETTER
-----------
LIST OF REPORTS
---------------
1. Letter dated March 6, 1991 from Versar, Inc. addressed to Mr. Frank
Frankini of Equity Group;
2. Phase I - Environmental Assessment Resurvey prepared by Versar, Inc.,
Versar Job No. 10196.001.01 dated December, 1991; and
3. Environmental Hazard Audit prepared by Versar, Inc. dated December 9, 1988.
3
<PAGE>
EXHIBIT P
ENVIRONMENTAL REPORTS
---------------------
1. Letter dated March 6, 1991 from Versar, Inc. addressed to Mr. Frank
Frankini of Equity Group;
2. Phase I - Environmental Assessment Resurvey prepared by Versar, Inc.,
Versar Job No. 10196.001.01 dated December, 1991; and
3. Environmental Hazard Audit prepared by Versar, Inc. dated December 9, 1988.
<PAGE>
EXHIBIT Q
CONFIDENTIALITY AGREEMENT
-------------------------
Exhibit Q follows this page
<PAGE>
EXHIBIT R
QUIT CLAIM ASSIGNMENT OF PERMITS AND GENERAL INTANGIBLES
--------------------------------------------------------
THIS QUIT CLAIM ASSIGNMENT OF PERMITS AND GENERAL INTANGIBLES (this
"Assignment") is entered into as of the ____ day of __________, 1998 by and
between AMERICAN NATIONAL BANK AND TRUST COMPANY OF CHICAGO, NOT PERSONALLY, BUT
SOLELY AS TRUSTEE ("Trustee") UNDER TRUST AGREEMENT DATED MARCH 14, 1991 AND
KNOWN AS TRUST NUMBER 113531-09 (the "Trust"), 1800 SHERMAN ASSOCIATES, an
Illinois general partnership ("Beneficiary"; Trust and Beneficiary are
collectively referred to herein as "Assignor"), having offices at Two North
Riverside Plaza, Chicago, Illinois 60606, and ________________, a __________
("Assignee"), with an office at ________________________________.
1. Property. The "Property" shall mean the real property located in the
City of Evanston, County of Cook, State of Illinois, legally described in
EXHIBIT A attached to this Assignment, together with all of Assignor's right,
title and interest in and to the building, structures and other improvements
located thereon, and commonly known as "1800 Sherman".
2. Contract. "Contract" shall mean that certain Real Estate Sale Agreement
dated _______________, 1998 by and between Assignor, as Seller, and
_________________, as Purchaser, for the purchase and sale of the Property.
3. Permits. "Permits" shall mean all certificates of occupancy, special use
permits, elevator inspection certificates, operating permits, and all other
permits issued by any governmental authority relating to the use, occupancy,
ownership or operation of the Property, if any.
4. General Intangibles. "General Intangibles" shall mean: (i) all
warranties and guaranties relating to the Property, (ii) all plans,
specifications and floor plans for the Office Building (as defined in the
Contract); and (iii) all existing intangible personal property pertaining to the
Property, including the name "1800 Sherman" but excluding any intangible
property pertaining in any way to the rights associated with the name "Equity
Office" or the name of any entity containing the words "Equity Office".
5. Quit Claim Assignment. For good and valuable consideration received by
Assignor, the receipt and sufficiency of which are hereby acknowledged, Assignor
hereby quit claims to Assignee the entire right, title and interest of Assignor,
if any, in and to the Permits and General Intangibles, as applicable to the
period from and after the date hereof.
6. Enforcement. If Assignor or Assignee must resort to a court of law or
equity in order to enforce the provisions of this Assignment as against the
other, the non-prevailing party shall pay the reasonable attorney's fees and
expenses of the prevailing party.
7. Third Parties. Except as set forth in Section 10 of this Assignment, no
third party shall have the benefit of any of the provisions of this Assignment,
nor is this Assignment made with the intent that any person or entity other than
Assignor or Assignee shall rely hereon.
8. No Representations or Warranties. This Assignment shall not be construed
as a representation or warranty by Assignor as to the existence, ownership or
transferability of the Permits or the General Intangibles, and Assignor shall
have no liability to Assignee in the event that any or all of the
<PAGE>
Permits or the General Intangibles (i) are not transferable to Assignee, or (ii)
are canceled or terminated by reason of this assignment or any acts of Assignee.
9. Limited Liability. By accepting this Assignment, Assignee expressly
understands and agrees that any recovery against Assignor that Assignee may be
entitled to as a result of any claim, demand or cause of action that Assignee
may have against Assignor with respect to this Assignment shall only be
recoverable against Assignor as provided in Section 10(P) of the Contract.
10. Successors and Assigns. This Assignment shall be binding upon and inure
to the benefit of the parties hereto and their respective successors and
assigns.
11. Counterparts. This Assignment may be executed in any number of
identical counterparts, any or all of which may contain signatures of fewer than
all of the parties but all of which taken together shall constitute a single
instrument.
12. Trustee Exculpation. This Assignment is executed by the undersigned
Trustee, not personally but solely as Trustee in the exercise of the power and
authority conferred upon and invested in it as trustee under the Trust. It is
expressly understood and agreed by all parties to this Assignment that all the
warranties, indemnities, representations, covenants, undertakings and
Assignments herein made on the part of the Trustee are undertaken by the Trustee
solely in the Trustee's capacity as Trustee and not personally. No personal
liability or personal responsibility is assumed by or shall at any time be
asserted or enforceable against such Trustee on account of any warranty,
indemnity, representation, covenant, undertaking or Assignment of the Trustee in
this Assignment.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY BLANK]
2
<PAGE>
[signature page attached to Quit Claim Assignment of
Permits and General Intangibles]
IN WITNESS WHEREOF, Assignor and Assignee have executed this Assignment the
day and year first above written.
TRUST:
AMERICAN NATIONAL BANK AND TRUST COMPANY
OF CHICAGO, NOT PERSONALLY, BUT SOLELY AS
TRUSTEE UNDER TRUST AGREEMENT DATED
MARCH 14, 1991 AND KNOWN AS TRUST
NUMBER 113531-09
By:
-----------------------------------------
Name:
---------------------------------------
Its:
----------------------------------------
BENEFICIARY:
1800 SHERMAN ASSOCIATES, an Illinois general
partnership
By: First Capital Income and Growth Fund-
Series XII, an Illinois limited
partnership, a general partner
By: First Capital Financial Corporation,
a Florida corporation, its general
partner
By:
---------------------------------
Name:
-------------------------------
Its:
--------------------------------
By: First Capital Growth Fund-XIV, a Real
Estate Limited Partnership, an Illinois
limited partnership, a general partner
By: First Capital Fund-XIV, Inc., an
Illinois corporation, its general
partner
By:
---------------------------------
Name:
-------------------------------
Its:
--------------------------------
3
<PAGE>
ASSIGNEE:
PRENTISS PROPERTIES ACQUISITION PARTNERS, L.P., a
Delaware limited partnership
By: Prentiss Properties I, Inc., a Delaware
corporation, its general partner
By:
-----------------------------------------------
Print Name:
---------------------------------------
Its:
----------------------------------------------
EXHIBITS
--------
A - Legal Description of Property
4
<PAGE>
EXHIBIT S
T.I. AND COMMISSIONS - NEW LEASES APPROVED PRIOR TO DATE OF AGREEMENT
---------------------------------------------------------------------
<TABLE>
<CAPTION>
- ----------------------------------------------------------------------------------------------------------------------------
Date of Lease or Comm. Due Purchaser's Seller's
Tenant Amendment T.I. REference T.I. Due Per Invoices Share Share
- ----------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
Arthur Winter, an Second Amendment to Paragraph IV of Second $6,066.00 $ - $ 6,066.00 $ -
individual Lease dated May Amendment to Lease
29,1998.
- ----------------------------------------------------------------------------------------------------------------------------
Total $6,066.00 $ - $ 6,066.00 $ -
- ----------------------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
EXHIBIT T
T.I. AND COMMISSIONS - EXISTING LEASES
--------------------------------------
<TABLE>
<CAPTION>
- ----------------------------------------------------------------------------------------------------------------------------
Date of Lease or Comm. Due Purchaser's Seller's
Tenant Amendment T.I. REference T.I. Due Per Invoices Total Share Share
- ----------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
Sachs Group, Inc. Lease dated July 29, Paragraph 9 of $275,526.00 $ - $275,526.00 $275,526.00 $ -
individual 1994 Exhibit E (1)
- ----------------------------------------------------------------------------------------------------------------------------
Total $275,526.00 $ - $275,526.00 $275,526.00 $ -
- ----------------------------------------------------------------------------------------------------------------------------
</TABLE>
(1) Pursuant to Paragraph IV.D. of the First Amendment dated August 2, 1995 the
Refurbishment Allowance was reduced to $275,526.00
<PAGE>
EXHIBIT U
SETTLEMENT OF ASSESSED VALUES -- APPLICABLE TAX AND/OR CALENDAR YEARS
---------------------------------------------------------------------
1. Calendar Year 1995 (taxes payable in 1996)
2. Calendar Year 1996 (taxes payable in 1997)
3. Calendar Year 1997 (taxes payable in 1998)
<PAGE>
EXHIBIT V
SURVEY CERTIFICATION
--------------------
TO:
The undersigned hereby certifies that (a) this survey (i) is true and correct,
(ii) was made on the ground under my supervision, and (iii) correctly shows the
boundary lines and dimensions and area of the land indicated hereon and each
individual parcel thereof indicated hereon; (b) this survey correctly shows the
location and dimensions of all alleys, streets, roads, rights-of-way, easements,
building setback lines and other matters of record (as set forth in the
commitment for title insurance provided to the undersigned) affecting the
subject property according to the legal descriptions in such easements and other
matters (with instrument, volume and page numbers indicated hereon); (c) except
as shown hereon, there are no (i) visible improvements, visible easements,
rights-of-way, party walls, visible uses, visible discrepancies or conflicts,
(ii) visible encroachments on adjoining premises, streets or alleys by any of
said buildings, structures or other improvements, (iii) visible encroachments on
the subject property by buildings, structures or other improvements situated on
adjoining premises, or (iv) encroachments on any easement, building setback line
or other restricted area (shown in the title commitment) by any buildings,
structures or other improvements situated on the subject property; (d) the
distance from the nearest intersecting street or road is as shown hereon; (e)
the subject property has direct and free access to ____________________________,
a dedicated public street or road as shown hereon; (f) the subject property is
located within an area having a Zone Designation ___ by the Federal Emergency
Management Agency (FEMA), on Flood Insurance Rate Map No. ____, with an
effective date of ______________________, for Community No. ____, in the City of
__________________ ______________________, ____________________ County,
_____________________, which is the current published Flood Insurance Rate Map
for the community in which the subject property is located; and (g) except as
shown hereon, the subject property does not serve any adjoining property for
drainage, ingress and egress or any other purpose.
The property described hereon is the same as the property described in [describe
Title Commitment], and all easements, covenants and restrictions referenced in
said Title Commitment or apparent from a physical inspection of the site or
otherwise known to me have been plotted hereon or otherwise noted as to their
effect on the subject property.
I hereby certify that this survey was made in accordance with the "Minimum
Standard Detail Requirements for ALTA/ACSM Land Title Surveys," jointly
established and adopted by ALTA and ACSM in 1992, and meets the accuracy
requirements of an Urban Survey, as defined therein, and including Items 1-4,
and 6 (only as shown in the title commitment)-11, and 13 in Table A contained
therein.
<PAGE>
EXHIBIT W
LEASE DEFAULTS - SELLER
-----------------------
None.
<PAGE>
EXHIBIT X
AUDIT LETTER
------------
[Purchaser's Auditor]
- ---------------------
- ---------------------
Dear Sirs:
We are writing at your request to confirm our understanding that your audit
of the statement of operating income for the year ended _________________,
199__, was made for the purpose of expressing an opinion as to whether the
statement of operating income presents fairly, in all material respects, the
results of operations of 1800 Sherman Street, Evanston, Illinois (the "Project")
in conformity with generally accepted accounting principles. These
representations are made exclusively to [Auditor] and not to the buyer of the
Project or to any other party. In connection with your _________________, 199__
audit, we confirm, to the best of our knowledge and belief, with respect to our
daily operations and without independent investigation or inquiry, the following
representations made during your audit:
1. We have made available to you, through our managing agent, Equity Office
Properties Management Corp., all material financial records and related
data concerning this Project, which are in our possession.
2. We are not aware of any:
a. Irregularities involving any member of management or employees that
could have a materially adverse effect on the statement of operating
income.
b. Notices of violations of laws or regulations, the effect of which should
be considered for disclosure in the financial statements or as a basis
for recording a loss contingency.
c. Material liabilities, gain or loss contingencies or other transactions
(including oral and written guarantees) that are required to be but have
not been accrued or disclosed.
d. Material events that have occurred subsequent to _______________, 199__
that would require material adjustment to the statement of operating
income.
3. The Company has complied with all material aspects of contractual
agreements relating to the Project (e.g. management contracts) that would
have a material effect on the statement of operating income in the event of
noncompliance.
4. All significant payments to affiliated companies of the undersigned have
been properly recorded or disclosed in the financial statements that you
have prepared and furnished to us for review.
By:_______________________________
<PAGE>
EXHIBIT Y
1998 TAX APPEAL SUBMISSIONS
---------------------------
Exhibit Y follows this page.
