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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(D) OF
THE SECURITIES EXCHANGE ACT OF 1934
Date of Report: September 24, 1997
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MERIDIAN INDUSTRIAL TRUST, INC.
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(Exact name of registrant as specified in its charter)
Maryland 1-14166 94-3224765
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(State of Organization) (Commission Number) (IRS Employer I.D. #)
455 Market Street, 17th Floor, San Francisco, California 94105
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(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code (415) 281-3900
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Not Applicable
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(Former name or former address, if changed since last report)
This document contains ___ sequentially numbered pages.
The exhibit index is located on page ____.
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ITEM 2. ACQUISITION OR DISPOSITION OF ASSETS
On September 24, 1997 (the "Closing Date"), Meridian Industrial Trust, Inc.
(the "Company") acquired a portfolio of forty-four industrial buildings
containing an aggregate of approximately 3,538,000 square feet of rentable space
(the "Portfolio Properties"). The Portfolio Properties are located in the
metropolitan areas of Detroit, Michigan (approximately 457,000 sq. ft.),
Houston, Texas (approximately 684,000 sq. ft.), Pompano Beach, Florida
(approximately 219,000 sq. ft.), Dallas, Texas (approximately 569,000 sq. ft.),
Richmond, Virginia (approximately 146,000 sq. ft.), Compton, California
(approximately 1,070,000 sq. ft.), and Ontario, California (approximately
393,000 sq. ft.).
The Company purchased the Portfolio Properties from The Prudential
Insurance Company of America ("Prudential") and two of its affiliates, Pru-Oma
Joint Venture and One Federal Street Joint Venture (Prudential and those two
affiliates are collectively referred to below as the "Sellers"). The aggregate
contract purchase price for the Portfolio Properties was $127,078,526. The
Company also paid approximately $180,000.00 for owner's title insurance policy
premiums, $330,000.00 for transfer and documentary stamp taxes, and $4,000.00
for escrow, recording, and incidental closing fees. In addition, the Company
reimbursed Prudential on the Closing Date for approximately $534,000 of pre-
closing leasing expenses and for approximately $57,000 of Phase I environmental
report costs.
In determining the amount of consideration paid for the Portfolio
Properties, the Company considered such factors as the historical and expected
cash flows of the properties, the nature of the tenancies and terms of the
leases in place, occupancy rates, opportunities for alternative and new
tenancies, current operating costs, physical condition and location, building
design, the anticipated impact of the acquisition on the Company's financial
results, and capitalization rates at which it believed other comparable
properties recently had sold. The Company's analysis focused primarily on the
properties' expected future cash flows, their location (both by market and
within markets), and building design (e.g., such features as clear height, truck
turning radii, and cross docking capabilities).
The Company funded the costs of this acquisition from a combination of (i)
proceeds from borrowings under its unsecured credit facility with a group of
lending banks and (ii) proceeds from the sale of Company common stock to
Prudential and three accounts managed by Prudential. Before the closing, the
Sellers held the Portfolio Properties for the production of
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income as rental property, and the Company considers the Portfolio Properties
suitable for and intends to continue that use. Until the Closing Date, no
material relationship existed between the Sellers and the Company, any Company
affiliate, any Company director or officer, or any associate of any such
director or officer.
In connection with the Company's agreement to acquire the Portfolio
Properties, the Company also contracted with Prudential to purchase five
unimproved parcels of land. Three of these parcels are located in the Ontario,
California, metropolitan area, and the other two are in the metropolitan areas
of Chicago, Illinois, and Detroit, Michigan. The contract price for these five
parcels is $13,720,726.00. The Company's obligation to purchase these parcels,
and any adjustments to the purchase prices thereof, will be established
following determination of the amount of developable land in, and any
restrictions limiting development of, each of those parcels.
In connection with the Company's agreement to acquire the Portfolio
Properties, the Company also contracted with Prudential and One Federal Street
Joint Venture (the "New Orleans/Jacksonville Sellers") to purchase eight
industrial buildings located in the metropolitan area of New Orleans, Louisiana
and five industrial buildings located in the metropolitan area of Jacksonville,
Florida (collectively, the "EastGroup Properties") for a total purchase price of
$49,709,846.00. Pursuant to agreements between the Company, the New
Orleans/Jacksonville Sellers, and EastGroup Properties, L.P. ("EastGroup"), the
Company directed the New Orleans/Jacksonville Sellers to convey the EastGroup
Properties directly to EastGroup on the Closing Date. Accordingly, the Company
did not acquire title to the EastGroup Properties. The purchase price paid by
EastGroup to the New Orleans/Jacksonville Sellers for the EastGroup Properties
was $49,709,846.00 and was financed in part by a loan from the Company to
EastGroup in the amount of $45,000,000.00 (the "EastGroup Loan"). The EastGroup
Loan is secured by the EastGroup Properties, requires monthly, interest-only
payments computed on the basis of an annual rate of 9.25%, and matures on
December 31, 1997. The Company paid approximately $100,000 of Florida mortgage
taxes related to the EastGroup Loan; all other closing costs associated with
EastGroup's acquisition of the EastGroup Properties and with the EastGroup Loan
were paid by either EastGroup or the New Orleans/Jacksonville Sellers. No
material relationship exists between EastGroup and the Company, any Company
affiliate, any Company director or officer, or any associate of any such
director or officer.
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ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS
(a) and (b) FINANCIAL STATEMENTS OF THE BUSINESS ACQUIRED AND PRO
FORMA FINANCIAL INFORMATION.
It is impracticable to provide the required financial
statements with this report. Those financial
statements will be filed as soon as practicable but in
no event later than December 8, 1997.
(c) EXHIBITS. The following exhibits are attached to this report:
10.1* Purchase and Sale Agreement (Texas properties)
between The Prudential Insurance Company of America and the
Company dated May 29, 1997, together with the First Amendment
thereto dated July 7, 1997, the Second Amendment thereto dated
July 22, and the Third Amendment thereto dated August 5, 1997.
Filed with the company's Form 10Q for the second quarter of 1997
and incorporated herein by reference.
10.2** Fourth Amendment to Purchase and Sale Agreement
(Texas properties) between The Prudential Insurance Company of
America and the Company dated August 20, 1997, Fifth Amendment to
Purchase and Sale Agreement (Texas properties) between The
Prudential Insurance Company of America and the Company dated
September 5, 1997, and Sixth Amendment to Purchase and Sale
Agreement (Texas properties) between The Prudential Insurance
Company of America and the Company dated September 8, 1997.
10.3* Summary of the Purchase and Sale Agreement
(Cedarpointe, CA) between The Prudential Insurance Company of
America and the Company dated May 29, 1997, together with the
First Amendment thereto dated July 7, 1997, the Second Amendment
thereto dated July 22, and the Third Amendment thereto dated
August 5, 1997.
10.4** Fourth Amendment to Purchase and Sale Agreement
(Cedarpointe, CA) between The Prudential Insurance Company of
America and the Company dated August 20, 1997, Fifth Amendment to
Purchase and Sale Agreement (Cedarpointe, CA) between The
Prudential Insurance Company of America and the Company dated
September 5, 1997, and Sixth Amendment to Purchase and Sale
Agreement (Cedarpointe, CA) between The Prudential Insurance
Company of America and the Company dated September 8, 1997.
10.5* Summary of the Purchase and Sale Agreement (460
Ellis Road-Jacksonville & Centerport) between The Prudential
Insurance Company of America and the Company dated May 29, 1997,
together with the First Amendment thereto dated July 7, 1997, the
Second Amendment thereto dated July 22, and the Third Amendment
thereto dated August 5, 1997.
10.6** Fourth Amendment to Purchase and Sale Agreement
(460 Ellis Road-Jacksonville & Centerport) between The Prudential
Insurance Company of America and the Company dated August 20,
1997, Fifth Amendment to Purchase and Sale Agreement (460 Ellis
Road-Jacksonville & Centerport) between The Prudential Insurance
Company of America and the Company dated September 5, 1997, and
Sixth Amendment to Purchase and Sale Agreement (460 Ellis Road-
Jacksonville & Centerport) between The Prudential Insurance
Company of America and the Company dated September 8, 1997.
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10.7* Summary of the Purchase and Sale Agreement
(Michigan, Louisiana, and Virginia) between The Prudential
Insurance Company of America and the Company dated May 29, 1997,
together with the First Amendment thereto dated July 7, 1997, the
Second Amendment thereto dated July 22, and the Third Amendment
thereto dated August 5, 1997.
10.8** Fourth Amendment to Purchase and Sale Agreement
(Michigan, Louisiana, and Virginia) between The Prudential
Insurance Company of America and the Company dated August 20,
1997, Fifth Amendment to Purchase and Sale Agreement (Michigan,
Louisiana, and Virginia) between The Prudential Insurance Company
of America and the Company dated September 5, 1997, and Sixth
Amendment to Purchase and Sale Agreement (Michigan, Louisiana,
and Virginia) between The Prudential Insurance Company of America
and the Company dated September 8, 1997.
10.9* Summary of the Purchase and Sale Agreement
(Illinois, Michigan & California land) between The Prudential
Insurance Company of America and the Company dated May 29, 1997,
together with the First Amendment thereto dated July 7, 1997, the
Second Amendment thereto dated July 22, and the Third Amendment
thereto dated August 5, 1997.
10.10** Fourth Amendment to Purchase and Sale Agreement
(Illinois, Michigan & California land) between The Prudential
Insurance Company of America and the Company dated August 20,
1997, Fifth Amendment to Purchase and Sale Agreement (Illinois,
Michigan & California) between The Prudential Insurance Company
of America and the Company dated September 5, 1997, and Sixth
Amendment to Purchase and Sale Agreement (Illinois, Michigan &
California) between The Prudential Insurance Company of America
and the Company dated September 22, 1997.
10.11** Summary of Purchase and Sale Agreement between Pru-Oma
Joint Venture and the Company dated May 29, 1997 together with
the First Amendment thereto dated July 7, 1997, the Second
Amendment thereto dated July 22, the Third Amendment thereto
dated August 5, 1997, the Fourth Amendment thereto dated August
20, 1997, the Fifth Amendment thereto dated September 5, 1997,
and the Sixth Amendment thereto dated September 8, 1997
10.12** Summary of Purchase and Sale Agreement between The
Prudential Insurance Company of America and One Federal Street
Joint Venture as sellers and the Company as buyer dated May 29,
1997 together with the First Amendment thereto dated July 7,
1997, the Second Amendment thereto dated July 22, the Third
Amendment thereto dated August 5, 1997, the Fourth Amendment
thereto dated August 20, 1997, the Fifth Amendment thereto dated
September 5, 1997, and the Sixth Amendment thereto dated
September 8, 1997
10.13 ** Agreement regarding Real Property between
EastGroup Properties, L.P. and the Company dated September 22,
1997
10.14 ** Promissory Note in the amount of $18,300,000 dated
September 23, 1997 executed in favor of the Company by EastGroup
Properties, L.P.
10.15 ** Form of Mortgage and Security Agreement executed
by EastGroup Properties, L.P. with respect to the $18,300,000
loan from the Company to EastGroup Properties, L.P.
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10.16 ** Promissory Note in the amount of $26,700,000 dated
September 23, 1997 executed in favor of the Company by EastGroup
Properties, L.P.
10.17 ** Form of Mortgage and Security Agreement executed
by EastGroup Properties, L.P. with respect to the $26,700,000
loan from the Company to EastGroup Properties, L.P.
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* Filed with the Company's Form 10Q for the second quarter of 1997 and
incorporated herein by reference.
** Filed with this report.
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.
By: MERIDIAN INDUSTRIAL TRUST, INC.
Date: October 8, 1997 By:
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Robert A. Dobbin
Secretary
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EXHIBIT 10.2
FOURTH AMENDMENT TO
PURCHASE AND SALE AGREEMENT
THIS FOURTH AMENDMENT TO PURCHASE AND SALE AGREEMENT ("Fourth
Amendment") is entered into as of August 20, 1997 by and between Meridian
Industrial Trust, Inc., a Maryland corporation ("Buyer"), and The Prudential
Insurance Company of America, a New Jersey corporation ("Seller").
RECITALS
A. Buyer and Seller entered into that certain Purchase and Sale
Agreement dated as of May 29, 1997, that certain First Amendment thereto dated
as of July 7, 1997, that certain Second Amendment thereto dated July 22, 1997,
and that certain Third Amendment thereto dated August 5, 1997 (collectively, the
"Agreement"), for the purchase and sale of real property designated "INDUSTRIAL
PACKAGE SALE - TEXAS PROPERTIES", as more particularly described on Exhibit A to
the Agreement, together with certain personal property, lease interests and
intangible property, all as more particularly described in the Agreement.
B. Buyer and Seller now desire to modify the Agreement as provided
herein.
C. Capitalized terms in this Fourth Amendment not defined herein
shall have the meanings ascribed to them in the Agreement.
NOW, THEREFORE, in consideration of the mutual covenants contained
herein, Buyer and Seller agree as follows:
1. DUE DILIGENCE PERIOD. The expiration date of the Due Diligence
Period is extended from August 20, 1997 to and including September 5, 1997.
2. CONFLICT IN TERMS. In the event of any conflict or inconsistency
between the terms and conditions of this Fourth Amendment and the terms and
conditions of the Agreement, the terms and conditions of this Fourth Amendment
shall govern and control the rights and obligations of the parties hereto.
3. EFFECT OF FOURTH AMENDMENT. Except as expressly modified herein,
all terms and conditions of the Agreement remain unmodified and in full force
and effect.
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4. COUNTERPARTS. This Fourth Amendment may be executed in one or
more counterparts, each of which may be deemed an original, and all of which,
when taken together, shall constitute one and the same instrument. This Fourth
Amendment may be executed via telecopied signatures with original signatures to
follow.
IN WITNESS WHEREOF, Buyer and Seller have executed this Fourth
Amendment as of the date first above written.
BUYER
MERIDIAN INDUSTRIAL TRUST, INC.,
a Maryland corporation
By:
------------------------------
Robert A. Dobbin
Its: Secretary
SELLER
THE PRUDENTIAL INSURANCE COMPANY OF AMERICA, a New
Jersey corporation
By:
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Bernard C. Buchholz
Its: Vice President
2
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FIFTH AMENDMENT TO
PURCHASE AND SALE AGREEMENT
THIS FIFTH AMENDMENT TO PURCHASE AND SALE AGREEMENT ("Fifth
Amendment") is entered into as of September 5, 1997 by and between Meridian
Industrial Trust, Inc., a Maryland corporation ("Buyer"), and The Prudential
Insurance Company of America, a New Jersey corporation ("Seller").
RECITALS
A. Buyer and Seller entered into that certain Purchase and Sale
Agreement dated as of May 29, 1997, that certain First Amendment thereto dated
as of July 7, 1997, that certain Second Amendment thereto dated July 22, 1997,
that certain Third Amendment thereto dated August 5, 1997, and that certain
Fourth Amendment thereto dated August 20, 1997 (collectively, the "Agreement"),
for the purchase and sale of real property designated "INDUSTRIAL PACKAGE SALE -
TEXAS PROPERTIES", as more particularly described on Exhibit A to the Agreement,
together with certain personal property, lease interests and intangible
property, all as more particularly described in the Agreement.
B. Buyer and Seller now desire to modify the Agreement as provided
herein.
C. Capitalized terms in this Fifth Amendment not defined herein
shall have the meanings ascribed to them in the Agreement.
NOW, THEREFORE, in consideration of the mutual covenants contained
herein, Buyer and Seller agree as follows:
1. DUE DILIGENCE PERIOD. The expiration date of the Due Diligence
Period is extended from September 5, 1997 to and including September 15, 1997.
2. CONFLICT IN TERMS. In the event of any conflict or inconsistency
between the terms and conditions of this Fifth Amendment and the terms and
conditions of the Agreement, the terms and conditions of this Fifth Amendment
shall govern and control the rights and obligations of the parties hereto.
3. EFFECT OF FIFTH AMENDMENT. Except as expressly modified herein,
all terms and conditions of the Agreement remain unmodified and in full force
and effect.
3
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4. COUNTERPARTS. This Fifth Amendment may be executed in one or
more counterparts, each of which may be deemed an original, and all of which,
when taken together, shall constitute one and the same instrument. This Fifth
Amendment may be executed via telecopied signatures with original signatures to
follow.
IN WITNESS WHEREOF, Buyer and Seller have executed this Fifth
Amendment as of the date first above written.
BUYER
MERIDIAN INDUSTRIAL TRUST, INC.,
a Maryland corporation
By:
------------------------------
Jaime Suarez
Its: Vice President
SELLER
THE PRUDENTIAL INSURANCE COMPANY OF AMERICA, a New
Jersey corporation
By:
------------------------------
Bernard C. Buchholz
Its: Vice President
4
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SIXTH AMENDMENT TO
PURCHASE AND SALE AGREEMENT
THIS SIXTH AMENDMENT TO PURCHASE AND SALE AGREEMENT ("Sixth
Amendment") is entered into as of September 8, 1997 by and between Meridian
Industrial Trust, Inc., a Maryland corporation ("Buyer"), and The Prudential
Insurance Company of America, a New Jersey corporation ("Seller").
RECITALS
A. Buyer and Seller entered into that certain Purchase and Sale
Agreement dated as of May 29, 1997, that certain First Amendment thereto dated
as of July 7, 1997, that certain Second Amendment thereto dated July 22, 1997,
that certain Third Amendment thereto dated August 5, 1997, that certain Fourth
Amendment thereto dated August 20, 1997, and that certain Fifth Amendment
thereto dated September 5, 1997 (collectively, the "Agreement"), for the
purchase and sale of real property designated "INDUSTRIAL PACKAGE SALE - TEXAS
PROPERTIES", as more particularly described on Exhibit A to the Agreement,
together with certain personal property, lease interests and intangible
property, all as more particularly described in the Agreement.
B. Buyer and Seller now desire to modify the Agreement as provided
herein.
C. Capitalized terms in this Sixth Amendment not defined herein
shall have the meanings ascribed to them in the Agreement.
NOW, THEREFORE, in consideration of the mutual covenants contained
herein, Buyer and Seller agree as follows:
1. PURCHASE PRICE ADJUSTMENT. The total Purchase Price for the
Property is reduced to Twenty-Eight Million Six Hundred Forty-Five Thousand
Three Hundred Eighty-Seven and No/100 Dollars ($28,645,387.00), and shall be
allocated between the projects comprising the Property as set forth on EXHIBIT A
attached hereto.
2. ESTOPPEL LETTERS. If Tree of Life, a tenant in the Exchange
Service Center project, does not indicate in its estoppel letter that the right
of first refusal set forth in its Lease is waived or is otherwise inapplicable
to the transaction contemplated herein, then Seller shall certify same to Buyer
in a Seller estoppel letter, which certification shall not be qualified by or
limited to "Seller's Knowledge", as such term is defined in SECTION 8.3.3 of the
Agreement.
3. DESIGNATED EMPLOYEES. Buyer and Seller hereby acknowledge and
agree that the persons to be listed on EXHIBIT P to the Agreement, which persons
comprise the Designated Employees in accordance with Section 8.3.3 of the
Agreement for all projects comprising the Property, are those persons set forth
on EXHIBIT B attached hereto.
5
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4. ENVIRONMENTAL REPORTS OR SURVEYS. Buyer acknowledges that Seller
has advised Buyer of the existence of those certain environmental reports or
surveys relating to the Property listed on EXHIBIT C attached hereto, which
replaces EXHIBIT Q to the Agreement.
5. BUYER'S AUDIT RIGHTS. The second sentence of Section 14.16 of
the Agreement is hereby amended to replace the reference therein to "EXHIBIT Q"
with "EXHIBIT R".
6. ASSIGNMENT OF OPERATING AGREEMENTS. Notwithstanding the terms
and provisions of those certain Assignments of Operating Agreements to be
executed by Buyer and Seller with respect to each project comprising the
Property (the "Assignments") pursuant to the Agreement, Seller and Buyer hereby
agree that only those operating agreements set forth on SCHEDULE A to any such
Assignment that are cancellable upon thirty (30) days' notice shall be assigned
by Seller and assumed by Buyer pursuant to any such Assignment. The assignment
and assumption of any operating agreement listed on any such SCHEDULE A which is
not so cancellable shall be void AB INITIO. The terms and provisions of this
Paragraph 6 of this Sixth Amendment shall survive the Closing.
7. CONFLICT IN TERMS. In the event of any conflict or inconsistency
between the terms and conditions of this Sixth Amendment and the terms and
conditions of the Agreement, the terms and conditions of this Sixth Amendment
shall govern and control the rights and obligations of the parties hereto.
8. EFFECT OF SIXTH AMENDMENT. Except as expressly modified herein,
all terms and conditions of the Agreement remain unmodified and in full force
and effect.
6
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9. COUNTERPARTS. This Sixth Amendment may be executed in one or
more counterparts, each of which may be deemed an original, and all of which,
when taken together, shall constitute one and the same instrument. This Sixth
Amendment may be executed via telecopied signatures with original signatures to
follow.
IN WITNESS WHEREOF, Buyer and Seller have executed this Sixth
Amendment as of the date first above written.
BUYER
MERIDIAN INDUSTRIAL TRUST, INC.,
a Maryland corporation
By:
------------------------------
Robert A. Dobbin
Its: Secretary
SELLER
THE PRUDENTIAL INSURANCE COMPANY OF AMERICA, a New
Jersey corporation
By:
------------------------------
Bernard C. Buchholz
Its: Vice President
7
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PURCHASE PRICE ALLOCATIONS
Property/Project Price ($)
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Exchange Service Center 4,928,150
Highland Service Center 7,823,962
Pinemont Distribution 2,666,439
Perimeter Distribution 3,026,272
Brittmore Distribution 7,085,653
Pine North Distribution 3,114,911
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Total 28,645,387
8
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EXHIBIT 10.4
FOURTH AMENDMENT TO
PURCHASE AND SALE AGREEMENT
THIS FOURTH AMENDMENT TO PURCHASE AND SALE AGREEMENT ("Fourth
Amendment") is entered into as of August 20, 1997 by and between Meridian
Industrial Trust, Inc., a Maryland corporation ("Buyer"), and The Prudential
Insurance Company of America, a New Jersey corporation ("Seller").
RECITALS
A. Buyer and Seller entered into that certain Purchase and Sale
Agreement dated as of May 29, 1997, that certain First Amendment thereto dated
as of July 7, 1997, that certain Second Amendment thereto dated July 22, 1997,
and that certain Third Amendment thereto dated August 5, 1997 (collectively, the
"Agreement"), for the purchase and sale of real property designated "INDUSTRIAL
PACKAGE SALE - CEDARPOINTE (CALIFORNIA)", as more particularly described on
Exhibit A to the Agreement, together with certain personal property, lease
interests and intangible property, all as more particularly described in the
Agreement.
B. Buyer and Seller now desire to modify the Agreement as provided
herein.
C. Capitalized terms in this Fourth Amendment not defined herein
shall have the meanings ascribed to them in the Agreement.
NOW, THEREFORE, in consideration of the mutual covenants contained
herein, Buyer and Seller agree as follows:
1. DUE DILIGENCE PERIOD. The expiration date of the Due Diligence
Period is extended from August 20, 1997 to and including September 5, 1997.
2. CONFLICT IN TERMS. In the event of any conflict or inconsistency
between the terms and conditions of this Fourth Amendment and the terms and
conditions of the Agreement, the terms and conditions of this Fourth Amendment
shall govern and control the rights and obligations of the parties hereto.
3. EFFECT OF FOURTH AMENDMENT. Except as expressly modified herein,
all terms and conditions of the Agreement remain unmodified and in full force
and effect.
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4. COUNTERPARTS. This Fourth Amendment may be executed in one or
more counterparts, each of which may be deemed an original, and all of which,
when taken together, shall constitute one and the same instrument. This Fourth
Amendment may be executed via telecopied signatures with original signatures to
follow.
IN WITNESS WHEREOF, Buyer and Seller have executed this Fourth
Amendment as of the date first above written.
BUYER
MERIDIAN INDUSTRIAL TRUST, INC.,
a Maryland corporation
By:
------------------------------
Robert A. Dobbin
Its: Secretary
SELLER
THE PRUDENTIAL INSURANCE COMPANY OF AMERICA,
a New Jersey corporation
By:
------------------------------
Bernard C. Buchholz
Its: Vice President
2
<PAGE>
FIFTH AMENDMENT TO
PURCHASE AND SALE AGREEMENT
THIS FIFTH AMENDMENT TO PURCHASE AND SALE AGREEMENT ("Fifth
Amendment") is entered into as of September 5, 1997 by and between Meridian
Industrial Trust, Inc., a Maryland corporation ("Buyer"), and The Prudential
Insurance Company of America, a New Jersey corporation ("Seller").
RECITALS
A. Buyer and Seller entered into that certain Purchase and Sale
Agreement dated as of May 29, 1997, that certain First Amendment thereto dated
as of July 7, 1997, that certain Second Amendment thereto dated July 22, 1997,
that certain Third Amendment thereto dated August 5, 1997, and that certain
Fourth Amendment thereto dated August 20, 1997 (collectively, the "Agreement"),
for the purchase and sale of real property designated "INDUSTRIAL PACKAGE SALE -
CEDARPOINTE (CALIFORNIA)", as more particularly described on Exhibit A to the
Agreement, together with certain personal property, lease interests and
intangible property, all as more particularly described in the Agreement.
B. Buyer and Seller now desire to modify the Agreement as provided
herein.
C. Capitalized terms in this Fifth Amendment not defined herein
shall have the meanings ascribed to them in the Agreement.
NOW, THEREFORE, in consideration of the mutual covenants contained
herein, Buyer and Seller agree as follows:
1. DUE DILIGENCE PERIOD. The expiration date of the Due Diligence
Period is extended from September 5, 1997 to and including September 15, 1997.
2. CONFLICT IN TERMS. In the event of any conflict or inconsistency
between the terms and conditions of this Fifth Amendment and the terms and
conditions of the Agreement, the terms and conditions of this Fifth Amendment
shall govern and control the rights and obligations of the parties hereto.
3. EFFECT OF FIFTH AMENDMENT. Except as expressly modified herein,
all terms and conditions of the Agreement remain unmodified and in full force
and effect.
3
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4. COUNTERPARTS. This Fifth Amendment may be executed in one or
more counterparts, each of which may be deemed an original, and all of which,
when taken together, shall constitute one and the same instrument. This Fifth
Amendment may be executed via telecopied signatures with original signatures to
follow.
IN WITNESS WHEREOF, Buyer and Seller have executed this Fifth
Amendment as of the date first above written.
BUYER
MERIDIAN INDUSTRIAL TRUST, INC.,
a Maryland corporation
By:
------------------------------
Jaime Suarez
Its: Vice President
SELLER
THE PRUDENTIAL INSURANCE COMPANY OF AMERICA,
a New Jersey corporation
By:
------------------------------
Bernard C. Buchholz
Its: Vice President
4
<PAGE>
THIS SIXTH AMENDMENT TO PURCHASE AND SALE AGREEMENT ("Sixth
Amendment") is entered into as of September 8, 1997 by and between Meridian
Industrial Trust, Inc., a Maryland corporation ("Buyer"), and The Prudential
Insurance Company of America, a New Jersey corporation ("Seller").
RECITALS
A. Buyer and Seller entered into that certain Purchase and Sale
Agreement dated as of May 29, 1997, that certain First Amendment thereto dated
as of July 7, 1997, that certain Second Amendment thereto dated July 22, 1997,
that certain Third Amendment thereto dated August 5, 1997, that certain Fourth
Amendment thereto dated August 20, 1997, and that certain Fifth Amendment
thereto dated September 5, 1997 (collectively, the "Agreement"), for the
purchase and sale of real property designated "INDUSTRIAL PACKAGE SALE -
CEDARPOINTE (CALIFORNIA)", as more particularly described on Exhibit A to the
Agreement, together with certain personal property, lease interests and
intangible property, all as more particularly described in the Agreement.
B. Buyer and Seller now desire to modify the Agreement as provided
herein.
C. Capitalized terms in this Sixth Amendment not defined herein
shall have the meanings ascribed to them in the Agreement.
NOW, THEREFORE, in consideration of the mutual covenants contained
herein, Buyer and Seller agree as follows:
1. PURCHASE PRICE ADJUSTMENT. The total Purchase Price for the
Property is reduced to Fifteen Million Six Hundred Fifty-Nine Thousand Nine
Hundred Two and No/100 Dollars ($15,659,902.00).
2. ESTOPPEL LETTERS. If Finn Industries and/or Staples Office
Products, tenants in the Property, do not indicate in their estoppel letters
that their rights set forth in their Leases to purchase a portion of the
Property are waived or are otherwise inapplicable to the transaction
contemplated herein, then Seller shall certify same to Buyer in Seller estoppel
letter(s), which certifications shall not be qualified by or limited to
"Seller's Knowledge", as such term is defined in SECTION 8.3.3 of the Agreement.
3. NON-FOREIGN STATUS AFFIDAVIT. Buyer and Seller acknowledge and
agree that (i) the form of non-foreign status affidavit attached to the
Agreement and labelled as "EXHIBIT J" is hereby relabelled as "EXHIBIT J-1" in
accordance with Section 6.4(g) of the Agreement and (ii) the form of affidavit
to be signed by Seller (California Form 590-RE), which form was to be attached
to the Agreement as EXHIBIT J-2 but was inadvertently omitted, is attached
hereto as EXHIBIT A.
4. PENDING LITIGATION. Pursuant to Section 8.2.4(a) of the
Agreement, Seller represents that Seller has not received any notice of any
pending or threatened litigation against Seller with respect to the Property.
5
<PAGE>
5. NOTICE OF VIOLATIONS. Pursuant to Section 8.2.4(b) of the
Agreement, Seller represents that Seller has not received any written notice(s)
from governmental authorities concerning violations of zoning, building, fire,
or health codes, statutes, ordinances, rules or regulations applicable to the
Property.
6. DESIGNATED EMPLOYEES. Buyer and Seller hereby acknowledge and
agree that the persons to be listed on EXHIBIT P to the Agreement, which persons
comprise the "Designated Employees" in accordance with Section 8.3.3 of the
Agreement for all projects comprising the Property, are those persons set forth
on EXHIBIT B attached hereto.
7. ENVIRONMENTAL REPORTS OR SURVEYS. Buyer acknowledges that Seller
has advised Buyer of the existence of those certain environmental reports or
surveys relating to the Property listed on EXHIBIT C attached hereto, which
replaces EXHIBIT Q to the Agreement.
8. ASSIGNMENT OF OPERATING AGREEMENTS. Notwithstanding the terms
and provisions of that certain Assignment of Operating Agreements to be executed
by Buyer and Seller with respect to the project comprising the Property (the
"Assignment") pursuant to the Agreement, Seller and Buyer hereby agree that only
those operating agreements set forth on SCHEDULE A to such Assignment that are
cancellable upon thirty (30) days' notice shall be assigned by Seller and
assumed by Buyer pursuant to such Assignment. The assignment and assumption of
any operating agreement listed on such SCHEDULE A which is not so cancellable
shall be void AB INITIO. The terms and provisions of this Paragraph 8 of this
Sixth Amendment shall survive the Closing.
9. CONFLICT IN TERMS. In the event of any conflict or inconsistency
between the terms and conditions of this Sixth Amendment and the terms and
conditions of the Agreement, the terms and conditions of this Sixth Amendment
shall govern and control the rights and obligations of the parties hereto.
10. EFFECT OF SIXTH AMENDMENT. Except as expressly modified herein,
all terms and conditions of the Agreement remain unmodified and in full force
and effect.
6
<PAGE>
11. COUNTERPARTS. This Sixth Amendment may be executed in one or
more counterparts, each of which may be deemed an original, and all of which,
when taken together, shall constitute one and the same instrument. This Sixth
Amendment may be executed via telecopied signatures with original signatures to
follow.
IN WITNESS WHEREOF, Buyer and Seller have executed this Sixth
Amendment as of the date first above written.
BUYER
MERIDIAN INDUSTRIAL TRUST, INC.,
a Maryland corporation
By:
------------------------------
Robert A. Dobbin
Its: Secretary
SELLER
THE PRUDENTIAL INSURANCE COMPANY OF
AMERICA, a New Jersey corporation
By:
------------------------------
Bernard C. Buchholz
Its: Vice President
7
<PAGE>
YEAR Withholding Exemption Certificate for CALIFORNIA FORM
19 Real Estate Sales (For use by sellers
-- of California real estate) 590-RE
- --------------------------------------------------------------------------------
File this form with your withholding agent or buyer. |Withholding agent's name
- --------------------------------------------------------------------------------
Seller's name
- --------------------------------------------------------------------------------
Seller's address (number and street) |Seller's daytime telephone number
- --------------------------------------------------------------------------------
City State Zip Code
- --------------------------------------------------------------------------------
Read the following carefully and check the box that applies to the seller:
CERTIFICATE OF RESIDENCY -- INDIVIDUALS:
I am a resident of California and I reside at the address shown above.
/ / CERTIFICATE OF PRINCIPAL RESIDENCE -- INDIVIDUALS:
The California real property located at
--------------------------
qualifies as my principal residence within the meaning of the Internal
Revenue Code Section 1034.
/ / CORPORATIONS:
The above-named corporation has a permanent place of business in
California at the address shown above or is qualified to do business
in California.
/ / PARTNERSHIPS:
The above-named entity is a partnership and the recorded title to the
property is in the name of the partnership. The partnership will file
a California return to report the sale and will withhold on foreign
and domestic nonresident partners when required.
/ / LIMITED LIABILITY COMPANIES (LLCS):
The above-named entity is an LLC and the recorded title to the
property is in the name of the LLC. The LLC will file a California
return to report the sale and will withhold on foreign and domestic
nonresident partners when required.
8
<PAGE>
/ / TAX-EXEMPT ENTITIES AND NONPROFIT ORGANIZATIONS:
The above-named entity is exempt from tax under California or federal
law.
/ / IRREVOCABLE TRUSTS:
At least one trustee of the above-named irrevocable trust is a
California resident. The trust will file a California fiduciary
return reporting the sale and will withhold on foreign and domestic
nonresident beneficiaries when required.
/ / CERTIFICATE OF RESIDENCY OF DECEASED PERSON -- ESTATES:
I am the executor of the above-named person's estate. The decedent
was a California resident at the time of death. The estate will file a
California fiduciary return reporting the sale and will withhold on
foreign and domestic nonresident beneficiaries when required.
/ / BANK:
The above-named entity is a bank or a bank acting as a fiduciary for a
trust. beneficiaries when required.
- --------------------------------------------------------------------------------
CERTIFICATE: Please complete and sign below.
Under penalties of perjury, I hereby certify that the information provided
herein is, to the best of my knowledge, true and correct. If conditions change,
I will promptly inform the withholding agent.
Seller's name and title (type or print)
----------------------------------------
Seller's social security number, California corporation number,
FEIN or California Secretary of State file number
-----------------------
(NOTE: Failure to provide your identification number will render this
certificate void.)
Seller's signature Date
----------------------------------------------- ---------
For Privacy Act Notice, see form FTB 1131 (individuals only).
- --------------------------------------------------------------------------------
9
<PAGE>
EXHIBIT 10.6
FOURTH AMENDMENT TO
PURCHASE AND SALE AGREEMENT
THIS FOURTH AMENDMENT TO PURCHASE AND SALE AGREEMENT ("Fourth
Amendment") is entered into as of August 20, 1997 by and between Meridian
Industrial Trust, Inc., a Maryland corporation ("Buyer"), and The Prudential
Insurance Company of America, a New Jersey corporation ("Seller").
RECITALS
A. Buyer and Seller entered into that certain Purchase and Sale
Agreement dated as of May 29, 1997, that certain First Amendment thereto dated
as of July 7, 1997, that certain Second Amendment thereto dated July 22, 1997,
and that certain Third Amendment thereto dated August 5, 1997 (collectively, the
"Agreement"), for the purchase and sale of real property designated "INDUSTRIAL
PACKAGE SALE - 460 ELLIS ROAD (JACKSONVILLE) AND CENTERPORT", as more
particularly described on Exhibit A to the Agreement, together with certain
personal property, lease interests and intangible property, all as more
particularly described in the Agreement.
B. Buyer and Seller now desire to modify the Agreement as provided
herein.
C. Capitalized terms in this Fourth Amendment not defined herein
shall have the meanings ascribed to them in the Agreement.
NOW, THEREFORE, in consideration of the mutual covenants contained
herein, Buyer and Seller agree as follows:
1. DUE DILIGENCE PERIOD. The expiration date of the Due Diligence
Period is extended from August 20, 1997 to and including September 5, 1997.
2. CONFLICT IN TERMS. In the event of any conflict or inconsistency
between the terms and conditions of this Fourth Amendment and the terms and
conditions of the Agreement, the terms and conditions of this Fourth Amendment
shall govern and control the rights and obligations of the parties hereto.
3. EFFECT OF FOURTH AMENDMENT. Except as expressly modified herein,
all terms and conditions of the Agreement remain unmodified and in full force
and effect.
<PAGE>
4. COUNTERPARTS. This Fourth Amendment may be executed in one or
more counterparts, each of which may be deemed an original, and all of which,
when taken together, shall constitute one and the same instrument. This Fourth
Amendment may be executed via telecopied signatures with original signatures to
follow.
IN WITNESS WHEREOF, Buyer and Seller have executed this Fourth
Amendment as of the date first above written.
BUYER
MERIDIAN INDUSTRIAL TRUST, INC.,
a Maryland corporation
By:
------------------------------
Robert A. Dobbin
Its: Secretary
SELLER
THE PRUDENTIAL INSURANCE COMPANY OF AMERICA, a New
Jersey corporation
By:
------------------------------
Bernard C. Buchholz
Its: Vice President
2
<PAGE>
FIFTH AMENDMENT TO
PURCHASE AND SALE AGREEMENT
THIS FIFTH AMENDMENT TO PURCHASE AND SALE AGREEMENT ("Fifth
Amendment") is entered into as of September 5, 1997 by and between Meridian
Industrial Trust, Inc., a Maryland corporation ("Buyer"), and The Prudential
Insurance Company of America, a New Jersey corporation ("Seller").
RECITALS
A. Buyer and Seller entered into that certain Purchase and Sale
Agreement dated as of May 29, 1997, that certain First Amendment thereto dated
as of July 7, 1997, that certain Second Amendment thereto dated July 22, 1997,
that certain Third Amendment thereto dated August 5, 1997, and that certain
Fourth Amendment thereto dated August 20, 1997 (collectively, the "Agreement"),
for the purchase and sale of real property designated "INDUSTRIAL PACKAGE SALE -
460 ELLIS ROAD (JACKSONVILLE) AND CENTERPORT", as more particularly described on
Exhibit A to the Agreement, together with certain personal property, lease
interests and intangible property, all as more particularly described in the
Agreement.
B. Buyer and Seller now desire to modify the Agreement as provided
herein.
C. Capitalized terms in this Fifth Amendment not defined herein
shall have the meanings ascribed to them in the Agreement.
NOW, THEREFORE, in consideration of the mutual covenants contained
herein, Buyer and Seller agree as follows:
1. DUE DILIGENCE PERIOD. The expiration date of the Due Diligence
Period is extended from September 5, 1997 to and including September 15, 1997.
2. CONFLICT IN TERMS. In the event of any conflict or inconsistency
between the terms and conditions of this Fifth Amendment and the terms and
conditions of the Agreement, the terms and conditions of this Fifth Amendment
shall govern and control the rights and obligations of the parties hereto.
3. EFFECT OF FIFTH AMENDMENT. Except as expressly modified herein,
all terms and conditions of the Agreement remain unmodified and in full force
and effect.
3
<PAGE>
4. COUNTERPARTS. This Fifth Amendment may be executed in one or
more counterparts, each of which may be deemed an original, and all of which,
when taken together, shall constitute one and the same instrument. This Fifth
Amendment may be executed via telecopied signatures with original signatures to
follow.
IN WITNESS WHEREOF, Buyer and Seller have executed this Fifth
Amendment as of the date first above written.
BUYER
MERIDIAN INDUSTRIAL TRUST, INC.,
a Maryland corporation
By:
------------------------------
Jaime Suarez
Its: Vice President
SELLER
THE PRUDENTIAL INSURANCE COMPANY OF AMERICA, a New
Jersey corporation
By:
------------------------------
Bernard C. Buchholz
Its: Vice President
4
<PAGE>
SIXTH AMENDMENT TO
PURCHASE AND SALE AGREEMENT
THIS SIXTH AMENDMENT TO PURCHASE AND SALE AGREEMENT ("Sixth
Amendment") is entered into as of September 8, 1997 by and between Meridian
Industrial Trust, Inc., a Maryland corporation ("Buyer"), and The Prudential
Insurance Company of America, a New Jersey corporation ("Seller").
RECITALS
A. Buyer and Seller entered into that certain Purchase and Sale
Agreement dated as of May 29, 1997, that certain First Amendment thereto dated
as of July 7, 1997, that certain Second Amendment thereto dated July 22, 1997,
that certain Third Amendment thereto dated August 5, 1997, that certain Fourth
Amendment thereto dated August 20, 1997, and that certain Fifth Amendment
thereto dated September 5, 1997 (collectively, the "Agreement"), for the
purchase and sale of real property designated "INDUSTRIAL PACKAGE SALE - 460
ELLIS ROAD (JACKSONVILLE) AND CENTERPORT", as more particularly described on
Exhibit A to the Agreement, together with certain personal property, lease
interests and intangible property, all as more particularly described in the
Agreement.
B. Buyer and Seller now desire to modify the Agreement as provided
herein.
C. Capitalized terms in this Sixth Amendment not defined herein
shall have the meanings ascribed to them in the Agreement.
NOW, THEREFORE, in consideration of the mutual covenants contained
herein, Buyer and Seller agree as follows:
1. PURCHASE PRICE ADJUSTMENT. The total Purchase Price for the
Property is reduced to Nineteen Million Ninety-Four Thousand Eight Hundred
Sixty-Five and No/100 Dollars ($19,094,865.00), and shall be allocated between
the projects comprising the Property as set forth on EXHIBIT A attached hereto.
2. LEASE ADJUSTMENT REIMBURSEMENT. Buyer acknowledges that the
Purchase Price for the project identified as 460/500 N. Ellis on EXHIBIT A
hereto has been reduced by the amount of One Hundred Thirty-Six Thousand One
Hundred Six and No/100 Dollars ($136,106.00) for the reason that Biagi
Warehousing has not renewed its existing Lease or entered into a new Lease at
such project prior to Closing. In the event Biagi Warehousing either: (a)
renews its existing Lease, or (b) executes a new Lease at such project, in
either case for a term of not less than three (3) years at market rental rates,
on or before the date that is five (5) months after the expiration date of such
existing Lease, Buyer shall reimburse the above amount to Seller, without
interest, within thirty (30) days following the date of execution of such Lease
renewal or new Lease.
3. DESIGNATED EMPLOYEES. Buyer and Seller hereby acknowledge and
agree that the persons to be listed on EXHIBIT P to the Agreement, which persons
comprise the "Designated
5
<PAGE>
Employees" in accordance with Section 8.3.3 of the Agreement for all projects
comprising the Property, are those persons set forth on EXHIBIT B attached
hereto.
4. ENVIRONMENTAL REPORTS OR SURVEYS. Buyer acknowledges that Seller
has advised Buyer of the existence of those certain environmental reports or
surveys relating to the Property listed on EXHIBIT C attached hereto, which
replaces EXHIBIT Q to the Agreement.
5. BUYER'S AUDIT RIGHTS. The second sentence of Section 14.16 of
the Agreement is hereby amended to replace the reference therein to "EXHIBIT Q"
with "EXHIBIT R".
6. ASSIGNMENT OF OPERATING AGREEMENTS. Notwithstanding the terms
and provisions of those certain Assignments of Operating Agreements to be
executed by Buyer and Seller with respect to each project comprising the
Property (the "Assignments") pursuant to the Agreement, Seller and Buyer hereby
agree that only those operating agreements set forth on SCHEDULE A to any such
Assignment that are cancellable upon thirty (30) days' notice shall be assigned
by Seller and assumed by Buyer pursuant to any such Assignment. The assignment
and assumption of any operating agreement listed on any such SCHEDULE A which is
not so cancellable shall be void AB INITIO. The terms and provisions of this
Paragraph 6 of this Sixth Amendment shall survive the Closing.
7. DIRECTED CONVEYANCE. As an accommodation to Buyer, Seller shall
at Closing convey that project comprising a portion of the Property, designated
on EXHIBIT A as "460/500 N. Ellis," to EASTGROUP PROPERTIES, L.P., a Delaware
limited partnership ("Eastgroup"), and Escrow Agent shall provide for execution
of the closing/settlement statements for such project by Buyer, Seller and
Eastgroup.
8. CONFLICT IN TERMS. In the event of any conflict or inconsistency
between the terms and conditions of this Sixth Amendment and the terms and
conditions of the Agreement, the terms and conditions of this Sixth Amendment
shall govern and control the rights and obligations of the parties hereto.
9. EFFECT OF SIXTH AMENDMENT. Except as expressly modified herein,
all terms and conditions of the Agreement remain unmodified and in full force
and effect.
6
<PAGE>
10. COUNTERPARTS. This Sixth Amendment may be executed in one or
more counterparts, each of which may be deemed an original, and all of which,
when taken together, shall constitute one and the same instrument. This Sixth
Amendment may be executed via telecopied signatures with original signatures to
follow.
IN WITNESS WHEREOF, Buyer and Seller have executed this Sixth
Amendment as of the date first above written.
BUYER
MERIDIAN INDUSTRIAL TRUST, INC.,
a Maryland corporation
By: Robert A.
------------------------------
Dobbin
Its: Secretary
SELLER
THE PRUDENTIAL INSURANCE COMPANY OF AMERICA, a New
Jersey corporation
By:
------------------------------
Bernard C. Buchholz
Its: Vice President
7
<PAGE>
PURCHASE PRICE ALLOCATIONS
PROPERTY/PROJECT PRICE ($)
Centerport Building A 3,558,089
Centerport Building B 3,314,193
Centerport Building E 4,396,911
460/500 N. Ellis 7,825,672
---------
Total 19,094,865
8
<PAGE>
EXHIBIT 10.8
FOURTH AMENDMENT TO
PURCHASE AND SALE AGREEMENT
THIS FOURTH AMENDMENT TO PURCHASE AND SALE AGREEMENT ("Fourth
Amendment") is entered into as of August 20, 1997 by and between Meridian
Industrial Trust, Inc., a Maryland corporation ("Buyer"), and The Prudential
Insurance Company of America, a New Jersey corporation ("Seller").
RECITALS
A. Buyer and Seller entered into that certain Purchase and Sale
Agreement dated as of May 29, 1997, that certain First Amendment thereto dated
as of July 7, 1997, that certain Second Amendment thereto dated July 22, 1997,
and that certain Third Amendment thereto dated August 5, 1997 (collectively, the
"Agreement"), for the purchase and sale of real property designated "INDUSTRIAL
PACKAGE SALE - MICHIGAN, LOUISIANA, AND VIRGINIA", as more particularly
described on Exhibit A to the Agreement, together with certain personal
property, lease interests and intangible property, all as more particularly
described in the Agreement.
B. Buyer and Seller now desire to modify the Agreement as provided
herein.
C. Capitalized terms in this Fourth Amendment not defined herein
shall have the meanings ascribed to them in the Agreement.
NOW, THEREFORE, in consideration of the mutual covenants contained
herein, Buyer and Seller agree as follows:
1. DUE DILIGENCE PERIOD. The expiration date of the Due Diligence
Period is extended from August 20, 1997 to and including August 26, 1997.
2. CONFLICT IN TERMS. In the event of any conflict or inconsistency
between the terms and conditions of this Fourth Amendment and the terms and
conditions of the Agreement, the terms and conditions of this Fourth Amendment
shall govern and control the rights and obligations of the parties hereto.
3. EFFECT OF FOURTH AMENDMENT. Except as expressly modified herein,
all terms and conditions of the Agreement remain unmodified and in full force
and effect.
<PAGE>
4. COUNTERPARTS. This Fourth Amendment may be executed in one or
more counterparts, each of which may be deemed an original, and all of which,
when taken together, shall constitute one and the same instrument. This Fourth
Amendment may be executed via telecopied signatures with original signatures to
follow.
IN WITNESS WHEREOF, Buyer and Seller have executed this Fourth
Amendment as of the date first above written.
BUYER
MERIDIAN INDUSTRIAL TRUST, INC.,
a Maryland corporation
By:
------------------------------
Robert A. Dobbin
Its: Secretary
SELLER
THE PRUDENTIAL INSURANCE COMPANY OF AMERICA,
a New Jersey corporation
By:
------------------------------
Bernard C. Buchholz
Its: Vice President
2
<PAGE>
FIFTH AMENDMENT TO
PURCHASE AND SALE AGREEMENT
THIS FIFTH AMENDMENT TO PURCHASE AND SALE AGREEMENT ("Fifth
Amendment") is entered into as of September 5, 1997 by and between Meridian
Industrial Trust, Inc., a Maryland corporation ("Buyer"), and The Prudential
Insurance Company of America, a New Jersey corporation ("Seller").
RECITALS
A. Buyer and Seller entered into that certain Purchase and Sale
Agreement dated as of May 29, 1997, that certain First Amendment thereto dated
as of July 7, 1997, that certain Second Amendment thereto dated July 22, 1997,
that certain Third Amendment thereto dated August 5, 1997, and that certain
Fourth Amendment thereto dated August 20, 1997 (collectively, the "Agreement"),
for the purchase and sale of real property designated "INDUSTRIAL PACKAGE SALE -
MICHIGAN, LOUISIANA, AND VIRGINIA", as more particularly described on Exhibit A
to the Agreement, together with certain personal property, lease interests and
intangible property, all as more particularly described in the Agreement.
B. Buyer and Seller now desire to modify the Agreement as provided
herein.
C. Capitalized terms in this Fifth Amendment not defined herein
shall have the meanings ascribed to them in the Agreement.
NOW, THEREFORE, in consideration of the mutual covenants contained
herein, Buyer and Seller agree as follows:
1. DUE DILIGENCE PERIOD. The expiration date of the Due Diligence
Period is extended from September 5, 1997 to and including September 15, 1997.
2. CONFLICT IN TERMS. In the event of any conflict or inconsistency
between the terms and conditions of this Fifth Amendment and the terms and
conditions of the Agreement, the terms and conditions of this Fifth Amendment
shall govern and control the rights and obligations of the parties hereto.
3. EFFECT OF FIFTH AMENDMENT. Except as expressly modified herein,
all terms and conditions of the Agreement remain unmodified and in full force
and effect.
3
<PAGE>
4. COUNTERPARTS. This Fifth Amendment may be executed in one or
more counterparts, each of which may be deemed an original, and all of which,
when taken together, shall constitute one and the same instrument. This Fifth
Amendment may be executed via telecopied signatures with original signatures to
follow.
IN WITNESS WHEREOF, Buyer and Seller have executed this Fifth
Amendment as of the date first above written.
BUYER
MERIDIAN INDUSTRIAL TRUST, INC.,
a Maryland corporation
By:
------------------------------
Jaime Suarez
Its: Vice President
SELLER
THE PRUDENTIAL INSURANCE COMPANY OF AMERICA,
a New Jersey corporation
By:
------------------------------
Bernard C. Buchholz
Its: Vice President
4
<PAGE>
SIXTH AMENDMENT TO
PURCHASE AND SALE AGREEMENT
THIS SIXTH AMENDMENT TO PURCHASE AND SALE AGREEMENT ("Sixth
Amendment") is entered into as of September 8, 1997 by and between Meridian
Industrial Trust, Inc., a Maryland corporation ("Buyer"), and The Prudential
Insurance Company of America, a New Jersey corporation ("Seller").
RECITALS
A. Buyer and Seller entered into that certain Purchase and Sale
Agreement dated as of May 29, 1997, that certain First Amendment thereto dated
as of July 7, 1997, that certain Second Amendment thereto dated July 22, 1997,
that certain Third Amendment thereto dated August 5, 1997, that certain Fourth
Amendment thereto dated August 20, 1997, and that certain Fifth Amendment
thereto dated September 5, 1997 (collectively, the "Agreement"), for the
purchase and sale of real property designated "INDUSTRIAL PACKAGE SALE -
MICHIGAN, LOUISIANA, AND VIRGINIA", as more particularly described on Exhibit A
to the Agreement, together with certain personal property, lease interests and
intangible property, all as more particularly described in the Agreement.
B. Buyer and Seller now desire to modify the Agreement as provided
herein.
C. Capitalized terms in this Sixth Amendment not defined herein
shall have the meanings ascribed to them in the Agreement.
NOW, THEREFORE, in consideration of the mutual covenants contained
herein, Buyer and Seller agree as follows:
1. PURCHASE PRICE ADJUSTMENT. The total Purchase Price for the
Property is reduced to Fifty-Nine Million Fifty-Five Thousand Six Hundred
Ninety-Eight and No/100 Dollars ($59,055,605.00), and shall be allocated between
the projects comprising the Property as set forth on EXHIBIT A attached hereto.
2. LEASE ADJUSTMENT REIMBURSEMENT. Buyer acknowledges that the
Purchase Price for the project identified as Huron (6)(16)[5] 17900 Woodland
Drive on EXHIBIT A hereto has been reduced by the amount of Two Hundred
Forty-One Thousand Four Hundred Thirteen and No/100 Dollars ($241,413.00) for
the reason that Customized Transportation, Inc. has not renewed its existing
Lease or entered into a new Lease at such project prior to Closing. In the
event Customized Transport, Inc. either: (a) renews its existing Lease, or (b)
executes a new Lease at such project, in either case for a term of not less than
three (3) years at market rental rates, on or before the date that is five (5)
months after the expiration of such existing Lease, Buyer shall reimburse the
above amount to Seller, without interest, within thirty (30) days following
execution of such Lease renewal or new Lease.
3. DESIGNATED EMPLOYEES. Buyer and Seller hereby acknowledge and
agree that the persons to be listed on EXHIBIT P to the Agreement, which persons
comprise the "Designated
5
<PAGE>
Employees" in accordance with Section 8.3.3 of the Agreement for all projects
comprising the Property, are those persons set forth on EXHIBIT B attached
hereto.
4. ENVIRONMENTAL REPORTS OR SURVEYS. Buyer acknowledges that Seller
has advised Buyer of the existence of those certain environmental reports or
surveys relating to the Property listed on EXHIBIT C attached hereto, which
replaces EXHIBIT Q to the Agreement.
5. BUYER'S AUDIT RIGHTS. The second sentence of Section 14.16 of
the Agreement is hereby amended to replace the reference therein to "EXHIBIT Q"
with "EXHIBIT R".
6. ASSIGNMENT OF OPERATING AGREEMENTS. Notwithstanding the terms
and provisions of those certain Assignments of Operating Agreements to be
executed by Buyer and Seller with respect to each project comprising the
Property (the "Assignments") pursuant to the Agreement, Seller and Buyer hereby
agree that only those operating agreements set forth on SCHEDULE A to any such
Assignment that are cancellable upon thirty (30) days' notice shall be assigned
by Seller and assumed by Buyer pursuant to any such Assignment. The assignment
and assumption of any operating agreement listed on any such SCHEDULE A which is
not so cancellable shall be void AB INITIO. The terms and provisions of this
Paragraph 6 of this Sixth Amendment shall survive the Closing.
7. DIRECTED CONVEYANCE. As an accommodation to Buyer, Seller shall
at Closing convey those projects comprising a portion of the Property,
designated on EXHIBIT A hereto as "Cypress Business Center," "Riverbend
Office/Service Center," "Riverbend Warehouse #2," and "Riverbend Warehouse #1,"
to EASTGROUP PROPERTIES, L.P., a Delaware limited partnership ("Eastgroup"), and
Escrow Agent shall provide for execution of the closing/settlement statements
for such projects by Buyer, Seller and Eastgroup.
8. CONFLICT IN TERMS. In the event of any conflict or inconsistency
between the terms and conditions of this Sixth Amendment and the terms and
conditions of the Agreement, the terms and conditions of this Sixth Amendment
shall govern and control the rights and obligations of the parties hereto.
9. EFFECT OF SIXTH AMENDMENT. Except as expressly modified herein,
all terms and conditions of the Agreement remain unmodified and in full force
and effect.
6
<PAGE>
10. COUNTERPARTS. This Sixth Amendment may be executed in one or
more counterparts, each of which may be deemed an original, and all of which,
when taken together, shall constitute one and the same instrument. This Sixth
Amendment may be executed via telecopied signatures with original signatures to
follow.
IN WITNESS WHEREOF, Buyer and Seller have executed this Sixth
Amendment as of the date first above written.
BUYER
MERIDIAN INDUSTRIAL TRUST, INC.,
a Maryland corporation
By:
------------------------------
Robert A. Dobbin
Its: Secretary
SELLER
THE PRUDENTIAL INSURANCE COMPANY OF AMERICA,
a New Jersey corporation
By:
------------------------------
Bernard C. Buchholz
Its: Vice President
7
<PAGE>
PURCHASE PRICE ALLOCATIONS
PROPERTY/PROJECT PRICE ($)
Southfield Commercial 3,569,224
Huron (6)(16)[5] 17900 Woodland Drive* 3,317,438
Huron (26)(11)[25] 17757 Woodland Drive* 2,597,956
Huron (27)(8)[26] 17608 Commerce Drive* 1,882,351
Westhills Commerce 2,682,027
H&J Industrial 2,752,198
Parkway Center 6,928,256
Cypress Point Business Center 2,207,659
Riverbend Office/Service Center 2,257,946
Riverbend Warehouse #2 5,820,356
Riverbend Warehouse #1 12,072,621
North Run III 4,959,072
North Run IV 8,008,594
---------
Total 59,055,698
* [ ] refers to future plat number
8
<PAGE>
EXHIBIT 10.10
FOURTH AMENDMENT TO
PURCHASE AND SALE AGREEMENT
THIS FOURTH AMENDMENT TO PURCHASE AND SALE AGREEMENT ("Fourth
Amendment") is entered into as of August 20, 1997 by and between Meridian
Industrial Trust, Inc., a Maryland corporation ("Buyer"), and The Prudential
Insurance Company of America, a New Jersey corporation ("Seller").
RECITALS
A. Buyer and Seller entered into that certain Purchase and Sale
Agreement dated as of May 29, 1997, that certain First Amendment thereto dated
as of July 7, 1997, that certain Second Amendment thereto dated July 22, 1997,
and that certain Third Amendment thereto dated August 5, 1997 (collectively, the
"Agreement"), for the purchase and sale of real property designated "INDUSTRIAL
PACKAGE SALE, LAND SALE: ILLINOIS, MICHIGAN AND CALIFORNIA", as more
particularly described on Exhibit A to the Agreement, together with certain
personal property, lease interests and intangible property, all as more
particularly described in the Agreement.
B. Buyer and Seller now desire to modify the Agreement as provided
herein.
C. Capitalized terms in this Fourth Amendment not defined herein
shall have the meanings ascribed to them in the Agreement.
NOW, THEREFORE, in consideration of the mutual covenants contained
herein, Buyer and Seller agree as follows:
1. DUE DILIGENCE PERIOD. The expiration date of the Due Diligence
Period is extended from August 20, 1997 to and including September 5, 1997.
2. CONFLICT IN TERMS. In the event of any conflict or inconsistency
between the terms and conditions of this Fourth Amendment and the terms and
conditions of the Agreement, the terms and conditions of this Fourth Amendment
shall govern and control the rights and obligations of the parties hereto.
3. EFFECT OF FOURTH AMENDMENT. Except as expressly modified herein,
all terms and conditions of the Agreement remain unmodified and in full force
and effect.
<PAGE>
4. COUNTERPARTS. This Fourth Amendment may be executed in one or
more counterparts, each of which may be deemed an original, and all of which,
when taken together, shall constitute one and the same instrument. This Fourth
Amendment may be executed via telecopied signatures with original signatures to
follow.
IN WITNESS WHEREOF, Buyer and Seller have executed this Fourth
Amendment as of the date first above written.
BUYER
MERIDIAN INDUSTRIAL TRUST, INC.,
a Maryland corporation
By:
------------------------------
Robert A. Dobbin
Its: Secretary
SELLER
THE PRUDENTIAL INSURANCE COMPANY OF
AMERICA, a New Jersey corporation
By:
------------------------------
Bernard C. Buchholz
Its: Vice President
<PAGE>
FIFTH AMENDMENT TO
PURCHASE AND SALE AGREEMENT
THIS FIFTH AMENDMENT TO PURCHASE AND SALE AGREEMENT ("Fifth
Amendment") is entered into as of September 5, 1997 by and between Meridian
Industrial Trust, Inc., a Maryland corporation ("Buyer"), and The Prudential
Insurance Company of America, a New Jersey corporation ("Seller").
RECITALS
A. Buyer and Seller entered into that certain Purchase and Sale
Agreement dated as of May 29, 1997, that certain First Amendment thereto dated
as of July 7, 1997, that certain Second Amendment thereto dated July 22, 1997,
that certain Third Amendment thereto dated August 5, 1997, and that certain
Fourth Amendment thereto dated August 20, 1997 (collectively, the "Agreement"),
for the purchase and sale of real property designated "INDUSTRIAL PACKAGE SALE,
LAND SALE: ILLINOIS, MICHIGAN AND CALIFORNIA", as more particularly described
on Exhibit A to the Agreement, together with certain personal property, lease
interests and intangible property, all as more particularly described in the
Agreement.
B. Buyer and Seller now desire to modify the Agreement as provided
herein.
C. Capitalized terms in this Fifth Amendment not defined herein
shall have the meanings ascribed to them in the Agreement.
NOW, THEREFORE, in consideration of the mutual covenants contained
herein, Buyer and Seller agree as follows:
1. DUE DILIGENCE PERIOD. The expiration date of the Due Diligence
Period is extended from September 5, 1997 to and including September 22, 1997.
2. CONFLICT IN TERMS. In the event of any conflict or inconsistency
between the terms and conditions of this Fifth Amendment and the terms and
conditions of the Agreement, the terms and conditions of this Fifth Amendment
shall govern and control the rights and obligations of the parties hereto.
3. EFFECT OF FIFTH AMENDMENT. Except as expressly modified herein,
all terms and conditions of the Agreement remain unmodified and in full force
and effect.
<PAGE>
4. COUNTERPARTS. This Fifth Amendment may be executed in one or
more counterparts, each of which may be deemed an original, and all of which,
when taken together, shall constitute one and the same instrument. This Fifth
Amendment may be executed via telecopied signatures with original signatures to
follow.
IN WITNESS WHEREOF, Buyer and Seller have executed this Fifth
Amendment as of the date first above written.
BUYER
MERIDIAN INDUSTRIAL TRUST, INC.,
a Maryland corporation
By:
------------------------------
Jaime Suarez
Its: Vice President
SELLER
THE PRUDENTIAL INSURANCE COMPANY OF AMERICA,
a New Jersey corporation
By:
------------------------------
Bernard C. Buchholz
Its: Vice President
<PAGE>
SIXTH AMENDMENT TO
PURCHASE AND SALE AGREEMENT
THIS SIXTH AMENDMENT TO PURCHASE AND SALE AGREEMENT ("Sixth
Amendment") is entered into as of September 22, 1997, by and between Meridian
Industrial Trust, Inc., a Maryland corporation ("Buyer"), and The Prudential
Insurance Company of America, a New Jersey corporation ("Seller").
RECITALS
A. Buyer and Seller have entered into that certain Purchase and Sale
Agreement dated as of May 29, 1997, as amended by that certain Second Amendment
dated as of July 22, 1997, that certain Third Amendment dated as of August 5,
1997, that certain Fourth Amendment dated as of August 20, 1997, and that
certain Fifth Amendment dated as of September 5, 1997 (collectively, the
"Agreement"), for the purchase and sale of real property designated "INDUSTRIAL
PACKAGE SALE, LAND SALE: ILLINOIS, MICHIGAN AND CALIFORNIA", as more
particularly described on Exhibit A to the Agreement, together with certain
personal property, lease interests and intangible property, all as more
particularly described in the Agreement.
B. Buyer and Seller now desire to modify the Agreement as provided
herein.
C. Capitalized terms not defined herein shall have the meanings
ascribed to them in the Agreement.
NOW, THEREFORE, in consideration of the mutual covenants contained
herein, Buyer and Seller agree as follows:
1. CEDARPOINTE PROPERTY. On the Closing Date, that portion of the
Purchase Price allocated to the Property described on Exhibit A-17 (Cedarpointe
Phase I), Exhibit A-18 (Cedarpointe Phase III) and Exhibit A-19 (Cedarpointe
Phase II) (collectively, the "Cedarpointe Development Parcels"), in the amount
of Three Million Fifty-Five Thousand Dollars ($3,055,000.00), shall be withheld
and retained by Escrow Agent. All interest earned on the amounts retained by
Escrow Agent shall accrue for the benefit of Buyer.
(a) Buyer has selected, and Seller has agreed to pay the fees
of, Thomas Olsen Associates, Inc. (the "Delhi Fly Consultant") to conduct a
survey to determine the presence of the Delhi Sands Flower-Loving Fly (the
"Delhi Fly") on the Cedarpointe Development Parcels (the "Delhi Fly Survey").
The Delhi Fly Survey was completed on September 20, 1997.
(b) The Delhi Fly Survey has determined that the Delhi Fly is
not present on the Cedarpointe Development Parcels, and the Delhi Fly Consultant
has been authorized to meet with authorized representatives of the United States
Fish and Wildlife Service ("USFWS") and any other governmental agencies having
jurisdiction over the Delhi Fly to request a modification in the survey protocol
respecting the Delhi Fly and to obtain a negative declaration or similar written
statement (the "Declaration") permitting development to proceed on the
Cedarpointe Development Parcels unrestricted by considerations related to the
Delhi Fly. Notwithstanding the foregoing, Buyer shall purchase the Cedarpointe
Development Parcels whether or not the Delhi Fly Consultant obtains the
Declaration. Seller has agreed to pay up to $2,115.00 of fees for the Delhi Fly
Consultant for the
<PAGE>
purpose of seeking the Declaration from USFWS. The Closing of Buyer's purchase
shall occur on a date selected by Buyer which shall be no later than December 1,
1997.
(c) Buyer and Seller will select, within ten (10) days after
Closing, and Seller has agreed to pay the fees of, a qualified consultant (the
"Owl Consultant") to prepare a survey to determine the presence of Burrowing
Owls on the Cedarpointe Development Parcels (the "Owl Survey"). The Owl Survey
is expected to be completed on or before October 15, 1997. If the Owl Survey
reflects that Burrowing Owls inhabit the Cedarpointe Development Parcels, Seller
shall, at Seller's sole cost and expense, promptly take all actions required to
be taken by Seller or Buyer, as the case may be, as owner of the Cedarpointe
Development Parcels, under applicable law respecting the Burrowing Owls then
located on the Cedarpointe Development Parcels including, without limitation,
trapping and relocating the Burrowing Owls. Notwithstanding anything to the
contrary in this paragraph, the Agreement or the Owl Survey, Seller's
obligations under this paragraph shall survive the Closing and Buyer's
acquisition of the Cedarpointe Development Parcels.
2. HURON COMMERCE CENTER PROPERTY.
(a) Prior to the Closing Date, Seller, at Seller's sole cost and
expense, shall cause the land described on Exhibit A-8 to the Agreement (the
"Ford Parking Parcel") to be surveyed such that, at Closing, the Ford Parking
Parcel may be conveyed by Seller to Buyer as a separate legal parcel. The
Purchase Price for the Ford Parking Parcel shall be Two Hundred Two Thousand
Five Hundred Fifty-Four Dollars ($202,554.00), and shall be conveyed from Seller
to Buyer on the Closing Date in accordance with the terms and conditions of the
Agreement.
(b) On the Closing Date, that portion of the Purchase Price
allocated to the Property described on Exhibit A-7 (Huron Commerce Center -
Land) (collectively, the "Huron Development Parcels"), in the amount of Six
Million Four Hundred Eighty-Seven Thousand Four Hundred Forty-Six Dollars
($6,487,446.00), shall be withheld and retained by Escrow Agent pending
satisfaction of the following conditions precedent to Buyer's obligation to
purchase the Huron Development Parcels. All interest earned on the amounts
retained by Escrow Holder shall accrue for the benefit of Buyer.
(i) After the Closing Date, but prior to June 5, 1998, if
directed in writing by Buyer, Seller shall, at Seller's sole cost and expense,
complete and record a final subdivision plat map encompassing the Huron
Development Parcels and such additional parcels of land in the property commonly
known as the Huron Commerce Center that have previously been purchased by Buyer
from Seller (the "Final Map"). The Final Map shall conform substantially to
that certain plat map entitled "Huron Commerce Center Subdivision" and signed by
Ryan Toole, Vice President of The Prudential Insurance Company of America on
August 22, 1997, prepared by Spaulding DeDecker Associates, Inc., 905 South
Boulevard East, Rochester Hills, Michigan 48307, SDA Job No. SM94-30. Buyer
shall join in the execution and/or recordation of the Final Map; PROVIDED,
HOWEVER, that Buyer shall not assume any liability by such joinder or, if
liability is imposed on Buyer, Seller shall indemnify, defend and hold Buyer
harmless from and against any such liability.
(ii) Buyer and Seller have engaged, at their joint expense,
Johnson, Johnson & Roy (the "Wetlands Consultant") to assist Buyer and Seller in
establishing the existence and extent of wetlands areas within the Huron
Development Parcels (the "Wetlands Areas"), and to determine on behalf of both
Buyer and Seller the location and amount of Wetlands Areas (the "Wetlands
Report"). The Wetlands Consultant shall, if requested by Buyer and Seller,
provide to
<PAGE>
Buyer and Seller a wetlands map (the "Wetlands Map") on an overlay of the Final
Map, depicting the location and type of vegetation as well as the total acreage
of Wetlands Areas. Buyer and Seller shall cooperate fully with the Wetlands
Consultant and each party acknowledges that the Wetlands Report shall reflect
the Wetlands Consultant's independent findings, and not the preferred findings
of either party. Barring negligence, fraud or a finding of undue influence, the
findings of the Wetlands Consultant with respect to the total acreage of
Wetlands Areas shall be binding upon Buyer and Seller.
(A) If the Wetlands Areas reflected in the Wetlands
Report exceed fifty percent (50%) of the combined acreage of the Huron
Development Parcels and the Ford Parking Parcel, Buyer shall have thirty (30)
days from receipt of the Wetlands Report to notify Seller that Buyer has elected
to terminate the Agreement as it applies to the Huron Development Parcels, in
which event Escrow Agent shall promptly refund to Buyer all sums held in Escrow
respecting the Huron Development Parcels, including all interest earned thereon,
and the parties shall have no further obligations to each other respecting the
Huron Development Parcels, except as expressly set forth in the Agreement.
(B) If the amount of Wetlands Areas reflected in the
Wetlands Report are less than or equal to fifty percent (50%) of the combined
acreage of the Huron Development Parcels and the Ford Parking Parcel, or if
Buyer elects not to terminate the Agreement pursuant to the preceding
subparagraph (A), and if the Wetlands Areas exceed the amount of acreage which
under the conditions accompanying recordation of the Final Map can be dedicated
or maintained as setback, open-space, greenbelt area or drainage areas, or other
lands which cannot, as a customary condition to issuance of building permits, be
used for construction of buildings, parking areas, roads or other improvements
(that is, there is a net reduction in developable acreage due to the Wetlands
Areas compared to similarly platted acreage that does not contain wetlands
areas), then the Purchase Price shall be reduced in proporation to the reduction
in the number of developable acres in the Huron Development Parcels as a result
of the presence of Wetlands Areas. The Closing shall occur in accordance with
the terms and conditions of the Agreement on a date selected by Buyer which date
shall be no later than thirty (30) days following: (a) the Wetlands
Consultant's delivery to Buyer and Seller of the Wetlands Report and the
Wetlands Map, and (b) Seller's obtaining all necessary signatures on the Final
Map so that the Final Map can be recorded at Buyer's written direction.
(C) Prior to determining the impact of the Wetlands
Areas on the Purchase Price of the Huron Development Parcels, Seller shall have
the right, but not the obligation, to present a wetlands relocation plan (the
"Wetlands Plan") to the authorized governmental agencies. If Seller elects to
present a Wetlands Plan, the Closing Date for the Huron Development Parcels
shall be delayed until the date that is fifteen (15) days following final
approval of the Wetlands Plan by such authorized governmental authorities.
3. CORPORATE CROSSING PROPERTY.
(a) The Purchase Price allocated to the Property described on
Exhibit A-35 to the Agreement (collectively, the "Corporate Crossing Development
Parcels") is reduced to Four Million One Hundred Seventy-Eight Thousand Two
Hundred Eighty Dollars ($4,178,280.00), and such amount shall at Closing be
withheld and retained by Escrow Agent. All interest earned on the amounts
retained by Escrow Agent shall accrue for the benefit of Buyer.
(b) On or before October 10, 1997, Buyer and Seller will engage,
and each party will pay one-half of the fees of, a mutually acceptable
engineering firm (the "Drainage Consultant") to
<PAGE>
review the existing drainage plan and drainage improvements for the Corporate
Crossing Development Parcels (the "Drainage Plan"), giving consideration to such
factors as the Drainage Consultant shall deem relevant including, but not
limited to, anticipated future development on higher elevation properties
located within the same drainage basin as the Corporate Crossing Development
Parcels. The Drainage Consultant shall be instructed to find the most cost
efficient method of correcting any insufficient drainage consistent with current
industry standards. The Drainage Consultant will advise Buyer and Seller in
writing (the "Drainage Report") if the existing drainage plan for the Corporate
Crossing Development Parcels is sufficient for continued development, and, if
insufficient, what measures are recommended by the Drainage Consultant to make
the Corporate Crossing Development Parcels' drainage adequate to handle such
development, together with an estimate of the cost of implementing such Amended
Drainage Plan over and above the normal cost of continued development absent
such amended Drainage Plan. The Closing shall occur on a date selected by
Buyer, which date shall be no later than thirty (30) days following receipt of
the Drainage Report, with the Purchase Price for the Corporate Crossing
Development Parcels reduced, if at all, by the estimated cost of implementing
the amended Drainage Plan. Buyer and Seller shall cooperate fully with the
Drainage Consultant and each party acknowledges that the Drainage Report shall
reflect the Drainage Consultant's independent findings, and not the preferred
findings of either party. Barring negligence, fraud or a finding of undue
influence, the findings of the Drainage Consultant with respect to the
sufficiency of the existing drainage plan and improvements for the Corporate
Crossing Development Parcels shall be binding upon Buyer and Seller.
(c) From and after the Closing Date, but prior to June 5, 1998,
Seller shall, at Seller's sole cost and expense, cause construction of a road
intersection at Gibraltar Drive and Joliet Road in Bolingbrook, Illinois,
together with any and all additional infrastructure improvements currently
required by any authorized governmental agency, to be completed in accordance
with applicable law and all conditions imposed by local zoning regulations and
authorities (the "Corporate Crossing Improvements"). Seller represents to Buyer
that Seller has forwarded construction plans for the Corporate Crossing
Improvements to the Illinois Department of Transportation ("IDOT") for approval.
(i) Seller may delay completion of construction of the
Corporate Crossing Improvements beyond June 5, 1998, on a day for day basis, for
any delays resulting solely from IDOT's or other governmental agency delay in
approving such construction plans beyond February 1, 1998, and Buyer
acknowledges that if the construction plans are not approved by IDOT on or
before September 30, 1997, construction of the Corporate Crossing Improvements
may be delayed until spring or summer of 1998. To the extent required by any
governmental agencies having jurisdiction over construction of the Corporate
Crossing Improvements, Buyer shall join in any documents necessary for such
construction; PROVIDED, HOWEVER, that such joinder shall not impose any
liability upon Buyer or, if any liability is imposed on Buyer, Seller shall
indemnify, defend and hold Buyer harmless from and against any such liability.
(ii) Seller has deposited in total approximately Five
Hundred Thousand Dollars ($500,000.00) with the Village of Bolingbrook,
Illinois, to secure Seller's completion of the Corporate Crossing Improvements,
approximately One Hundred Fifteen Thousand Dollars ($115,000.00) of which
relates to the completion of the intersection construction. Upon completion of
the Corporate Crossing Improvements, Seller will request a release/refund of
such sums from such agencies as they relate to the Corporate Crossing
Improvements. Provided Seller has fully complied with all its obligations to
complete and pay for the Corporate Crossing Improvements, Buyer shall
<PAGE>
have no claim upon such deposited sums. If requested by Seller, Buyer shall
join in any documents necessary for such release/refund, at no cost or liability
to Buyer.
(iii) Should Seller receive any warranties related to the
construction of the Corporate Crossing Improvements which are assignable to
Buyer and which are not required to be assigned exclusively to the Village of
Bolingbrook, Illinois, Seller shall assign to Buyer, at Buyer's cost, any and
all such warranties. Notwithstanding anything in this Sixth Amendment or the
Agreement to the contrary, Seller's obligations under this subparagraph shall
survive the Closing and Buyer's acquisition of the Corporate Crossing
Development Parcels.
4. CONFLICT OF TERMS. In the event of any conflict or inconsistency
between the terms and conditions of this Sixth Amendment and the terms and
conditions of the Agreement, the terms and conditions of this Sixth Amendment
shall govern and control the rights and obligations of the parties hereto.
5. EFFECT OF AMENDMENT. Except as expressly modified herein, all
terms and conditions of the Agreement remain unmodified and in full force and
effect.
6. COUNTERPARTS. The Sixth Amendment may be executed in one or more
counterparts, each of which may be deemed an original, and all of which, when
taken together, shall constitute one and the same instrument. This Sixth
Amendment may be executed via telecopied signatures with original signatures to
follow.
7. RELEASE OF AMOUNTS IN ESCROW. Buyer and Seller agree that on the
Closing Date, the amounts set forth in Paragraphs 1(a), 2(b) and 3(a) hereof
shall be deposited into escrow with Escrow Agent. Seller agrees that Buyer is
entitled to a release of the sums held by Escrow Agent for each Property upon
Buyer and Seller reaching agreement on the terms of sale for each Property which
includes a fixed price and firm closing date. Seller agrees that Buyer is
entitled to a release of the funds in escrow for the Cedarpointe Development
Parcels, which release shall be made at any time after the Closing Date upon
Buyer's written request to Escrow Agent. Seller agrees that Buyer shall be
entitled to a release of the funds in escrow for the Huron Development Parcels
upon Buyer and Seller entering into a written agreement on a fixed purchase
price therefor without the requirement of completion of the Final Map by Seller.
Seller agrees that Buyer shall be entitled to a release of the funds in escrow
for the Corporate Crossing Development Parcels upon Buyer and Seller (i)
receiving the Drainage Report and agreeing upon an adjustment of the purchase
price therefor, provided such Drainage Report reflects an increase in the cost
of development due to the Drainage Consultant's determination that the Drainage
Plan is insufficient, and (ii) agreeing upon a date for closing.
IN WITNESS WHEREOF, Buyer and Seller have executed this Sixth Amendment as
of the date first above written.
BUYER:
MERIDIAN INDUSTRIAL TRUST, INC.,
a Maryland corporation
By:
------------------------------
Robert A. Dobbin
<PAGE>
Its: Secretary
SELLER:
THE PRUDENTIAL INSURANCE COMPANY OF AMERICA,
a New Jersey corporation
By:
------------------------------
Bernard C. Buchholz
Its: Vice President
<PAGE>
EXHIBIT 10.11
SUMMARY
PURCHASE AND SALE AGREEMENT BETWEEN THE COMPANY AND PRU-OMA JOINT VENTURE
The Purchase and Sale Agreement dated May 29, 1997, between the Company and
Pru-Oma Joint Venture (the "Pru-Oma Agreement") is substantially identical to
the Purchase and Sale Agreement dated May 29, 1997, between the Company and The
Prudential Insurance Company of America covering Texas properties, which was
filed with the Company's Form 10Q for the second quarter of 1997 (the "Filed
Agreement"). Material differences between the Pru-Oma Agreement and the Filed
Agreement are set forth below.
- Description of the property to be sold under the Pru-Oma Agreement:
see the attached Exhibit A
- Purchase price for that property: $43,523,688
- Required deposit: $221,833
<PAGE>
EXHIBIT A
PRU-OMA JOINT VENTURE, A CALIFORNIA GENERAL PARTNERSHIP
DOMINGUEZ NORTH
COMPTON, CA
The land referred to in this survey is in the state of California, county of Los
Angeles, and is described as follows:
375 WEST APRA:
PARCEL A
Parcel 3 of Parcel Map No. 12806, in the city of Compton, as per map filed in
Book 129 Page 52 of parcel maps, in the office of the County Recorder of said
county.
PARCEL B
An appurtenant easement for light and air, which easement shall remain at all
times unobstructed from ground to sky by the construction, installation or
maintenance of any building or structure over the easterly 15.00 feet of Parcel
2 of Parcel Map 12806, in the city of Compton, as per map filed in Book 129 Page
52 of parcel maps, in the office of the County Recorder of said county.
PARCEL C
An appurtenant easement for surface drainage purposes over the easterly 10.00
feet of parcel 2 of parcel map 12806, in the city of Compton, as per map filed
in Book 129 Page 52 of parcel maps, in the office of the County Recorder of said
county.
PARCEL D
An appurtenant easement for light and air, which easement shall remain at all
times unobstructed from ground to sky by the construction, installation or
maintenance of any building or structure over the westerly 45.00 feet of Parcel
8 of Parcel Map 11376, in the city of Compton, as per map filed in Book 112
Pages 28 through 32 of parcel maps, in the office of the County Recorder of said
county, lying adjacent to Parcel 3 of Parcel Map 12806, as per map recorded in
Book 129 Page 52 of said parcel map.
425 WEST APRA:
PARCEL A
Parcel 2 of Parcel Map No. 12806, in the city of Compton, as per map filed in
Book 129 Page 52 of parcel maps, in the office of the County Recorder of said
county.
2
<PAGE>
Excepting and reserving therefrom, with the right to grant to others, an
easement for light and air, which easement shall remain at all times
unobstructed from ground to sky, by the construction, installation, or
maintenance of any building or structure over the easterly 15.00 feet and over
the northerly 27.00 feet of the easterly 69.92 feet thereof.
Also excepting and reserving therefrom, with the right to grant to others, an
easement for surface drainage purposes over the easterly 10.00 feet thereof.
PARCEL B
An easement for light and air, which easement shall remain at all times
unobstructed from ground to sky, by the construction, installation, or
maintenance of any building or structure over the easterly 60.00 feet of Parcel
1 of Parcel Map No. 12806.
PARCEL C
An easement for building footing purposes over the easterly 2.00 feet of Parcel
1 of Parcel Map No. 12806.
PARCEL D
An easement for surface drainage purposes over the easterly 10.00 feet of Parcel
1 of Parcel Map No. 12806.
PARCEL E
An easement for surface drainage purposes over the westerly 10.00 feet of Parcel
3 of Parcel Map No. 12806.
PARCEL F
An easement for railroad spur track purposes over a portion of Parcel 3, of said
Parcel Map No. 12806, described as follows:
Beginning at the intersection of the westerly line of said parcel with the
southerly line of the northerly 15.00 feet of said parcel; thence south 01
degree 59 minutes 45 seconds east along said last mentioned westerly line 20.44
feet to a point in a curve concave southeasterly and having a radius of 372.24
feet, a radial line to said curve passing through said point bears south 11
degrees 47 minutes 56 seconds east; thence easterly along said curve 63.69 feet
through a central angle of 09 degrees 48 minutes 11 seconds; thence tangent to
said curve north 88 degrees 00 minutes 15 seconds east, 60.00 feet to the
beginning of a tangent curve concave northwesterly and having a radius of 392.24
feet; thence easterly along said curve 56.45 feet through a central angle of 08
degrees 14 minutes 46 seconds; thence tangent to said curve north 79 degrees 45
minutes 29 seconds east, 76.31 feet to a point in said southerly line of the
northerly 15.00 feet of said parcel 3 distant thereon north 88 degrees 00
minutes 15 seconds east, 255.16 feet from the point of beginning; thence along
said southerly line south 88 degrees 00 minutes 15 seconds west, 255.16 feet to
the point of beginning.
3
<PAGE>
PARCEL G
An easement for surface drainage and subsurface storm drain purposes over that
portion of Parcel 3 of Parcel Map No. 12806, lying northerly of a line parallel
with and distant 45.00 feet, measured at right angles, from that portion of the
northerly line of said Parcel 3 shown as "North 88 degrees 00 minutes 15 seconds
east, 285.80 feet."
475 WEST APRA:
PARCEL A
Parcel 1 of Parcel Map No. 12806, in the city of Compton, as per map filed in
Book 129 Page 52 of parcel maps, in the office of the County Recorder of said
county.
PARCEL B
An easement for light and air, which easement shall remain at all times
unobstructed from ground to sky, by the construction, installation or
maintenance of any building or structure over the easterly 60.00 feet of Parcel
10 of Parcel Map No. 11376, in the city of Compton, as per map filed in Book 112
Pages 28 through 32 inclusive of parcel maps, in the office of the County
Recorder of said county.
PARCEL C
An easement for surface drainage purposes over the easterly 10.00 feet of Parcel
10 of said Parcel Map No. 11376.
515 WEST APRA:
PARCEL A
Parcel 10 of Parcel Map No. 11376, in the city of Compton, as per map filed in
Book 112 Pages 28 through 32 inclusive of parcel maps, in the office of the
County Recorder of said county.
PARCEL B
An easement for light and air, which easement shall remain at all times
unobstructed from ground to sky, by the construction, installation or
maintenance of any building or structure over the southerly 15.00 feet of Parcel
5 of said Parcel Map No. 11376.
PARCEL C
An easement for light and air, with the right to grant to others, which easement
shall remain at all times unobstructed from ground to sky, by the construction,
installation or maintenance of any building or structure over the easterly 60.00
feet of Parcel 1 of Parcel Map No. 10760, in the city of
4
<PAGE>
Compton, as per map filed in Book 106 Page 95 of parcel maps, in the office of
the County Recorder of said county.
250 WEST MANVILLE:
PARCEL 8
Parcel 8 of Parcel Map No. 11376, in the city of Compton, as per map filed in
Book 112 Pages 28 to 32 inclusive of parcel maps, in the office of the County
Recorder of said county.
255 WEST MANVILLE:
Parcel 1, as shown on a Parcel Map 11376, as per map filed in Book 112 Pages 28
to 32 inclusive of parcel maps, in the office of the County Recorder of said
county.
Except therefrom all mineral, oil, gas, hydrocarbon and other similar substances
within or under, or which may be produced from said parcel and the right to
produce and remove all such substances and rights from said parcel, and to drill
under or through said parcel; provided, however, that such reservations shall
not entitle grantor, or its successors or assigns to any right of entry upon the
surface of said parcel or any portion thereof, or within a depth of 500.00 feet;
below the surface thereof, as excepted and reserved to the grantor therein, in
deed executed by Carson Estate Company, a California corporation, recorded
November 1, 1978 as Instrument No. 78-1219760.
375 WEST MANVILLE:
PARCEL 2
Parcel 2, in the city of Compton, as shown on a Parcel Map No. 11376, filed in
Book 112 pages 28 to 32 inclusive of parcel maps, in the office of the County
Recorder of said county.
475 WEST MANVILLE:
PARCEL 3
Parcel 3 of Parcel Map 11376, in the city of Compton, as per map filed in Book
112 pages 28 to 32 inclusive of parcel maps, in the office of the county
recorder of said county.
525 WEST MANVILLE:
PARCEL 4
Parcel 4 of Parcel Map No. 11376, in the city of Compton, as per map filed in
Book 112 Pages 28 to 32 inclusive of parcel maps, in the office of the County
Recorder of said county.
5
<PAGE>
Except therefrom, with the right to grant to others, an easement for light and
air, which easement shall remain at all times unobstructed from ground to sky by
the construction, installation or maintenance of any building or structure over
the easterly 60.00 feet thereof.
Except therefrom all mineral, oil, gas, hydrocarbon and other similar substances
within or under, or which may be produced from said parcel and the right to
produce and remove all such substances and rights from said parcel, and to drill
under or through said parcel; provided, however, that such reservations shall
not entitle grantor, or its successors or assigns to any right of entry upon the
surface of said parcel or any portion thereof, or within a depth of 500.00 feet;
below the surface thereof, as excepted and reserved to the grantor therein, in
deed executed by Carson Estate Company, a California corporation, recorded
November 1, 1978 as Instrument No. 78-1219760.
Also except therefrom, with the right to grant to others, an easement for
railroad spur track purposes over that portion of the hereinabove described
property more particularly described as follows:
Beginning at the intersection of the westerly line of said Parcel 4 with the
southerly line of the 30.00 foot easement of southern pacific transportation
company, recorded on January 2, 1973 as Instrument No. 1529; thence easterly
along said southerly line 90.12 feet; thence southwesterly in a direct line to a
point in said westerly line, distant thereon south 01 degree 59 minutes 45
seconds east 12.94 feet from the point of beginning; thence along said westerly
line north 01 degree 59 minutes 45 seconds west 12.94 feet to the point of
beginning.
Also except therefrom, with the right to grant to others, an easement for
surface drainage purposes over the southerly 50.00 feet of the northerly 80.00
feet of the easterly 30.00 feet thereof.
605-660 VICTORIA:
PARCEL A
Parcel 2 of Parcel Map No. 10760, in the city of Compton, as per map filed in
Book 106 Page 95 of parcel maps, in the office of the County Recorder of said
county.
Except therefrom all water, mineral, oil, gas, hydrocarbon and other similar
substances within or under, or which may be produced from said land, and also
the rights to produce and remove all such substances and rights from said land,
and to drill under or through said parcels; provided, however, that such
reservation shall not entitle any right of entry upon the surface of said land
or any portion thereof, or within a depth of 500.00 feet below the surface
thereof, as reserved in the deed from Carson Estate Company, recorded September
30, 1976 as Instrument No. 880.
685 VICTORIA:
PARCEL A
Parcel 3 of Parcel Map No. 10760, in the city of Compton, as per map filed in
Book 106 Page 95 of parcel maps, in the office of the County Recorder of said
county.
6
<PAGE>
Except therefrom all water, mineral, oil, gas, hydrocarbon and other similar
substances within or under, or which may be produced from said land, and also
the rights to produce and remove all such substances and rights from said land,
and to drill under or through said parcels; provided, however, that such
reservation shall not entitle any right of entry upon the surface of said land
or any portion thereof, or within a depth of 500.00 feet below the surface
thereof, as reserved in the deed from Carson Estate Company, recorded September
30, 1976 as Instrument No. 880.
Also except therefrom, with the right to grant to others, an easement for light
and air, which easement shall remain at all times unobstructed from ground to
sky, by the construction, installation or maintenance of any building or
structures over the easterly 60.00 feet and the northerly 20.00 feet thereof.
Also except therefrom, with the right to grant to others, an easement for
building footings over the northerly 2.00 feet and the easterly 2.00 feet
thereof.
Also except therefrom, with the right to grant to others, an easement for
surface drainage over the easterly 10.00 feet thereof.
Also except therefrom, with the right to grant to others, an easement for
pedestrian access purposes, which easement shall remain at all times
unobstructed over the northerly 4.00 feet thereof.
Parcel 2:
An easement for light and air, which easement shall remain at all times
unobstructed from ground to sky, by the construction, installation or
maintenance of any building or structure over the easterly 20.00 feet of Parcel
1 of Parcel Map 8411, in the city of Compton, as per map filed in Book 86 Page
40 of parcel maps, in the office of the County Recorder of said county.
7
<PAGE>
FIRST AMENDMENT TO
PURCHASE AND SALE AGREEMENT
THIS FIRST AMENDMENT TO PURCHASE AND SALE AGREEMENT ("First
Amendment") is entered into as of July 7, 1997 by and between Meridian
Industrial Trust, Inc., a Maryland corporation ("Buyer"), and Pru-Oma Joint
Venture, a California general partnership ("Seller").
RECITALS
A. Buyer and Seller entered into that certain Purchase and Sale
Agreement dated as of May 29, 1997 (the "Agreement"), for the purchase and sale
of real property designated as "INDUSTRIAL PACKAGE SALE - DOMINGUEZ INDUSTRIAL
PARK" as more particularly described on Exhibit A to the Agreement, together
with certain personal property, lease interests and intangible property, all as
more particularly described in the Agreement.
B. Buyer and Seller now desire to modify the Agreement as provided
herein.
C. Capitalized terms in this First Amendment not defined herein
shall have the meanings ascribed to them in the Agreement.
NOW, THEREFORE, in consideration of the mutual covenants contained
herein, Buyer and Seller agree as follows:
1. DUE DILIGENCE PERIOD. The expiration date of the Due Diligence
Period is extended from July 7, 1997 to and including July 22, 1997. In
addition, the date "July 7, 1997" where it appears in Section 4.3 of the
Agreement is deleted and replaced with the phrase "the end of the Due Diligence
Period".
2. CLOSING DATE. Seller acknowledges that the Closing Date has been
extended until September 30, 1997 (i.e., the Option Closing Date) pursuant to
Election Notice duly given by Buyer.
3. CONFLICT IN TERMS. In the event of any conflict or inconsistency
between the terms and conditions of this First Amendment and the terms and
conditions of the Agreement, the terms and conditions of this First Amendment
shall govern and control the rights and obligations of the parties hereto.
4. EFFECT OF FIRST AMENDMENT. Except as expressly modified herein,
all terms and conditions of the Agreement remain unmodified and in full force
and effect.
8
<PAGE>
5. COUNTERPARTS. This First Amendment may be executed in one or
more counterparts, each of which may be deemed an original, and all of which,
when taken together, shall constitute one and the same instrument. This First
Amendment may be executed via telecopied signatures with original signatures to
follow.
IN WITNESS WHEREOF, Buyer and Seller have executed this First
Amendment as of the date first above written.
BUYER
MERIDIAN INDUSTRIAL TRUST, INC.,
a Maryland corporation
By:
------------------------------
Its:
------------------------------
SELLER
PRU-OMA JOINT VENTURE,
a California general partnership
By: The Prudential Insurance Company Of
America, a New Jersey corporation
Its: General Partner
By:
------------------------------
Bernard C. Buchholz
Its: Vice President
9
<PAGE>
SECOND AMENDMENT TO
PURCHASE AND SALE AGREEMENT
THIS SECOND AMENDMENT TO PURCHASE AND SALE AGREEMENT ("Second
Amendment") is entered into as of July 22, 1997 by and between Meridian
Industrial Trust, Inc., a Maryland corporation ("Buyer"), and Pru-Oma Joint
Venture, a California general partnership ("Seller").
RECITALS
A. Buyer and Seller entered into that certain Purchase and Sale
Agreement dated as of May 29, 1997, and that certain First Amendment thereto
dated as of July 7, 1997 (the "First Amendment") (jointly, the "Agreement"), for
the purchase and sale of real property designated "INDUSTRIAL PACKAGE SALE -
DOMINGUEZ INDUSTRIAL PARK", as more particularly described on Exhibit A to the
Agreement, together with certain personal property, lease interests and
intangible property, all as more particularly described in the Agreement.
B. Buyer and Seller now desire to modify the Agreement as provided
herein.
C. Capitalized terms in this Second Amendment not defined herein
shall have the meanings ascribed to them in the Agreement.
NOW, THEREFORE, in consideration of the mutual covenants contained
herein, Buyer and Seller agree as follows:
1. DUE DILIGENCE PERIOD. The expiration date of the Due Diligence
Period is extended from July 22, 1997 to and including August 5, 1997.
2. CONFLICT IN TERMS. In the event of any conflict or inconsistency
between the terms and conditions of this Second Amendment and the terms and
conditions of the Agreement, the terms and conditions of this Second Amendment
shall govern and control the rights and obligations of the parties hereto.
3. EFFECT OF SECOND AMENDMENT. Except as expressly modified herein,
all terms and conditions of the Agreement remain unmodified and in full force
and effect.
10
<PAGE>
4. COUNTERPARTS. This Second Amendment may be executed in one or
more counterparts, each of which may be deemed an original, and all of which,
when taken together, shall constitute one and the same instrument. This Second
Amendment may be executed via telecopied signatures with original signatures to
follow.
IN WITNESS WHEREOF, Buyer and Seller have executed this Second
Amendment as of the date first above written.
BUYER
MERIDIAN INDUSTRIAL TRUST, INC.,
a Maryland corporation
By:
------------------------------
Robert A. Dobbin
Secretary
SELLER
PRU-OMA JOINT VENTURE,
a California general partnership
By: The Prudential Insurance Company Of
America, a New Jersey corporation
Its: General Partner
By:
------------------------------
Bernard C. Buchholz
Its: Vice President
11
<PAGE>
THIRD AMENDMENT TO
PURCHASE AND SALE AGREEMENT
THIS THIRD AMENDMENT TO PURCHASE AND SALE AGREEMENT ("Third
Amendment") is entered into as of August 5, 1997 by and between Meridian
Industrial Trust, Inc., a Maryland corporation ("Buyer"), and Pru-Oma Joint
Venture, a California general partnership ("Seller").
RECITALS
A. Buyer and Seller entered into that certain Purchase and Sale
Agreement dated as of May 29, 1997, that certain First Amendment thereto dated
as of July 7, 1997, and that certain Second Amendment thereto dated July 22,
1997 (collectively, the "Agreement"), for the purchase and sale of real
property designated "INDUSTRIAL PACKAGE SALE - DOMINGUEZ INDUSTRIAL PARK", as
more particularly described on Exhibit A to the Agreement, together with certain
personal property, lease interests and intangible property, all as more
particularly described in the Agreement.
B. Buyer and Seller now desire to modify the Agreement as provided
herein.
C. Capitalized terms in this Third Amendment not defined herein
shall have the meanings ascribed to them in the Agreement.
NOW, THEREFORE, in consideration of the mutual covenants contained
herein, Buyer and Seller agree as follows:
1. DUE DILIGENCE PERIOD. The expiration date of the Due Diligence
Period is extended from August 5, 1997 to and including August 20, 1997.
2. CONFLICT IN TERMS. In the event of any conflict or inconsistency
between the terms and conditions of this Third Amendment and the terms and
conditions of the Agreement, the terms and conditions of this Third Amendment
shall govern and control the rights and obligations of the parties hereto.
3. EFFECT OF THIRD AMENDMENT. Except as expressly modified herein,
all terms and conditions of the Agreement remain unmodified and in full force
and effect.
12
<PAGE>
4. COUNTERPARTS. This Third Amendment may be executed in one or
more counterparts, each of which may be deemed an original, and all of which,
when taken together, shall constitute one and the same instrument. This Third
Amendment may be executed via telecopied signatures with original signatures to
follow.
IN WITNESS WHEREOF, Buyer and Seller have executed this Third
Amendment as of the date first above written.
BUYER
MERIDIAN INDUSTRIAL TRUST, INC.,
a Maryland corporation
By:
------------------------------
Robert A. Dobbin
Its: Secretary
SELLER
PRU-OMA JOINT VENTURE,
a California general partnership
By: The Prudential Insurance Company Of
America, a New Jersey corporation
Its: General Partner
By:
------------------------------
Bernard C. Buchholz
Its: Vice President
13
<PAGE>
FOURTH AMENDMENT TO
PURCHASE AND SALE AGREEMENT
THIS FOURTH AMENDMENT TO PURCHASE AND SALE AGREEMENT ("Fourth
Amendment") is entered into as of August 20, 1997 by and between Meridian
Industrial Trust, Inc., a Maryland corporation ("Buyer"), and Pru-Oma Joint
Venture, a California general partnership ("Seller").
RECITALS
A. Buyer and Seller entered into that certain Purchase and Sale
Agreement dated as of May 29, 1997, that certain First Amendment thereto dated
as of July 7, 1997, that certain Second Amendment thereto dated July 22, 1997,
and that certain Third Amendment thereto dated August 5, 1997 (collectively, the
"Agreement"), for the purchase and sale of real property designated "INDUSTRIAL
PACKAGE SALE - DOMINGUEZ INDUSTRIAL PARK", as more particularly described on
Exhibit A to the Agreement, together with certain personal property, lease
interests and intangible property, all as more particularly described in the
Agreement.
B. Buyer and Seller now desire to modify the Agreement as provided
herein.
C. Capitalized terms in this Fourth Amendment not defined herein
shall have the meanings ascribed to them in the Agreement.
NOW, THEREFORE, in consideration of the mutual covenants contained
herein, Buyer and Seller agree as follows:
1. DUE DILIGENCE PERIOD. The expiration date of the Due Diligence
Period is extended from August 20, 1997 to and including August 26, 1997.
2. CONFLICT IN TERMS. In the event of any conflict or inconsistency
between the terms and conditions of this Fourth Amendment and the terms and
conditions of the Agreement, the terms and conditions of this Fourth Amendment
shall govern and control the rights and obligations of the parties hereto.
3. EFFECT OF FOURTH AMENDMENT. Except as expressly modified herein,
all terms and conditions of the Agreement remain unmodified and in full force
and effect.
14
<PAGE>
4. COUNTERPARTS. This Fourth Amendment may be executed in one or
more counterparts, each of which may be deemed an original, and all of which,
when taken together, shall constitute one and the same instrument. This Fourth
Amendment may be executed via telecopied signatures with original signatures to
follow.
IN WITNESS WHEREOF, Buyer and Seller have executed this Fourth
Amendment as of the date first above written.
BUYER
MERIDIAN INDUSTRIAL TRUST, INC.,
a Maryland corporation
By:
------------------------------
Robert A. Dobbin
Its: Secretary
SELLER
PRU-OMA JOINT VENTURE,
a California general partnership
By: The Prudential Insurance Company Of
America, a New Jersey corporation
Its: General Partner
By:
------------------------------
Bernard C. Buchholz
Its: Vice President
15
<PAGE>
FIFTH AMENDMENT TO
PURCHASE AND SALE AGREEMENT
THIS FIFTH AMENDMENT TO PURCHASE AND SALE AGREEMENT ("Fifth
Amendment") is entered into as of September 5, 1997 by and between Meridian
Industrial Trust, Inc., a Maryland corporation ("Buyer"), and Pru-Oma Joint
Venture, a California general partnership ("Seller").
RECITALS
A. Buyer and Seller entered into that certain Purchase and Sale
Agreement dated as of May 29, 1997, that certain First Amendment thereto dated
as of July 7, 1997, that certain Second Amendment thereto dated July 22, 1997,
that certain Third Amendment thereto dated August 5, 1997, and that certain
Fourth Amendment thereto dated August 20, 1997 (collectively, the "Agreement"),
for the purchase and sale of real property designated "INDUSTRIAL PACKAGE SALE -
DOMINGUEZ INDUSTRIAL PARK", as more particularly described on Exhibit A to the
Agreement, together with certain personal property, lease interests and
intangible property, all as more particularly described in the Agreement.
B. Buyer and Seller now desire to modify the Agreement as provided
herein.
C. Capitalized terms in this Fifth Amendment not defined herein
shall have the meanings ascribed to them in the Agreement.
NOW, THEREFORE, in consideration of the mutual covenants contained
herein, Buyer and Seller agree as follows:
1. DUE DILIGENCE PERIOD. The expiration date of the Due Diligence
Period is extended from September 5, 1997 to and including September 15, 1997.
2. CONFLICT IN TERMS. In the event of any conflict or inconsistency
between the terms and conditions of this Fifth Amendment and the terms and
conditions of the Agreement, the terms and conditions of this Fifth Amendment
shall govern and control the rights and obligations of the parties hereto.
3. EFFECT OF FIFTH AMENDMENT. Except as expressly modified herein,
all terms and conditions of the Agreement remain unmodified and in full force
and effect.
16
<PAGE>
4. COUNTERPARTS. This Fifth Amendment may be executed in one or
more counterparts, each of which may be deemed an original, and all of which,
when taken together, shall constitute one and the same instrument. This Fifth
Amendment may be executed via telecopied signatures with original signatures to
follow.
IN WITNESS WHEREOF, Buyer and Seller have executed this Fifth
Amendment as of the date first above written.
BUYER
MERIDIAN INDUSTRIAL TRUST, INC.,
a Maryland corporation
By:
------------------------------
Jaime Suarez
Its: Vice President
SELLER
PRU-OMA JOINT VENTURE,
a California general partnership
By: The Prudential Insurance Company Of
America, a New Jersey corporation
Its: General Partner
By:
------------------------------
Bernard C. Buchholz
Its: Vice President
17
<PAGE>
SIXTH AMENDMENT TO
PURCHASE AND SALE AGREEMENT
THIS SIXTH AMENDMENT TO PURCHASE AND SALE AGREEMENT ("Sixth
Amendment") is entered into as of September 8, 1997 by and between Meridian
Industrial Trust, Inc., a Maryland corporation ("Buyer"), and Pru-Oma Joint
Venture, a California general partnership ("Seller").
RECITALS
A. Buyer and Seller entered into that certain Purchase and Sale
Agreement dated as of May 29, 1997, that certain First Amendment thereto dated
as of July 7, 1997, that certain Second Amendment thereto dated July 22, 1997,
that certain Third Amendment thereto dated August 5, 1997, that certain Fourth
Amendment thereto dated August 20, 1997, and that certain Fifth Amendment
thereto dated September 5, 1997 (collectively, the "Agreement"), for the
purchase and sale of real property designated "INDUSTRIAL PACKAGE SALE -
DOMINGUEZ INDUSTRIAL PARK", as more particularly described on Exhibit A to the
Agreement, together with certain personal property, lease interests and
intangible property, all as more particularly described in the Agreement.
B. Buyer and Seller now desire to modify the Agreement as provided
herein.
C. Capitalized terms in this Sixth Amendment not defined herein
shall have the meanings ascribed to them in the Agreement.
NOW, THEREFORE, in consideration of the mutual covenants contained
herein, Buyer and Seller agree as follows:
1. PURCHASE PRICE ADJUSTMENT. The total Purchase Price for the
Property is reduced to Forty-One Million Five Hundred Thirty-Two Thousand Six
Hundred Thirty and No/100 Dollars ($41,532,630.00).
2. NON-FOREIGN STATUS AFFIDAVIT. Buyer and Seller acknowledge and
agree that (i) the form of non-foreign status affidavit attached to the
Agreement and labelled as "EXHIBIT J" is hereby relabelled as "EXHIBIT J-1" in
accordance with Section 6.4(g) of the Agreement and (ii) the form of affidavit
to be signed by Seller setting forth that Seller is not subject to withholding
pursuant to Section 26131 of the California Revenue and Taxation Code, which
form was to be attached to the Agreement as EXHIBIT J-2 in accordance with
Section 6.4(g) thereof but was inadvertently omitted, is attached hereto as
EXHIBIT A.
3. DESIGNATED EMPLOYEES. Buyer and Seller hereby acknowledge and
agree that the persons to be listed on EXHIBIT P to the Agreement, which persons
comprise the Designated Employees in accordance with Section 8.3.3 of the
Agreement for all projects comprising the Property, are those persons set forth
on EXHIBIT B attached hereto.
18
<PAGE>
4. BUYER'S AUDIT RIGHTS. The second sentence of Section 14.16 of
the Agreement is hereby amended to replace the reference therein to "EXHIBIT Q"
with "EXHIBIT R".
5. BILL OF SALE. Buyer and Seller acknowledge that the form of Bill
of Sale attached to the Agreement between EXHIBIT C-1 and EXHIBIT E-1 thereto,
which form is unlabelled, is the form of Bill of Sale referred to as EXHIBIT D
in Section 6.4(b) of the Agreement.
6. ENVIRONMENTAL REPORTS OR SURVEYS. Buyer and Seller hereby agree
that the listing of certain environmental reports or surveys relating to the
Property attached hereto as EXHIBIT C replaces EXHIBIT Q to the Agreement.
7. ASSIGNMENT OF OPERATING AGREEMENTS. Notwithstanding the terms
and provisions of that certain Assignment of Operating Agreements to be executed
by Buyer and Seller with respect to the project comprising the Property (the
"Assignment") pursuant to the Agreement, Seller and Buyer hereby agree that only
those operating agreements set forth on SCHEDULE A to such Assignment that are
cancellable upon thirty (30) days' notice shall be assigned by Seller and
assumed by Buyer pursuant to such Assignment. The assignment and assumption of
any operating agreement listed on such SCHEDULE A which is not so cancellable
shall be void AB INITIO. The terms and provisions of this Paragraph 7 of this
Sixth Amendment shall survive the Closing.
8. CONFLICT IN TERMS. In the event of any conflict or inconsistency
between the terms and conditions of this Sixth Amendment and the terms and
conditions of the Agreement, the terms and conditions of this Sixth Amendment
shall govern and control the rights and obligations of the parties hereto.
9. EFFECT OF SIXTH AMENDMENT. Except as expressly modified herein,
all terms and conditions of the Agreement remain unmodified and in full force
and effect.
19
<PAGE>
10. COUNTERPARTS. This Sixth Amendment may be executed in one or
more counterparts, each of which may be deemed an original, and all of which,
when taken together, shall constitute one and the same instrument. This Sixth
Amendment may be executed via telecopied signatures with original signatures to
follow.
IN WITNESS WHEREOF, Buyer and Seller have executed this Sixth
Amendment as of the date first above written.
BUYER
MERIDIAN INDUSTRIAL TRUST, INC.,
a Maryland corporation
By:
------------------------------
Robert A. Dobbin
Its: Secretary
SELLER
PRU-OMA JOINT VENTURE,
a California general partnership
By: The Prudential Insurance Company Of
America, a New Jersey corporation
Its: General Partner
By:
------------------------------
Bernard C. Buchholz
Its: Vice President
20
<PAGE>
<TABLE>
<S> <C> <C>
YEAR WITHHOLDING EXEMPTION CERTIFICATE FOR CALIFORNIA FORM
19__ REAL ESTATE SALES (For use by sellers of California real estate) 590-RE
- ---------------------------------------------------------------------------------------------------------
File this form with your withholding agent or buyer. Withholding agent's name
- ---------------------------------------------------------------------------------------------------------
Seller's name
- ---------------------------------------------------------------------------------------------------------
Seller's address (number and street) Seller's daytime telephone number
- ---------------------------------------------------------------------------------------------------------
City State Zip Code
- ---------------------------------------------------------------------------------------------------------
Read the following carefully and check the box that applies to the seller:
</TABLE>
\ \ CERTIFICATE OF RESIDENCY -- INDIVIDUALS:
I am a resident of California and I reside at the address shown above.
\ \ CERTIFICATE OF PRINCIPAL RESIDENCE -- INDIVIDUALS:
The California real property located at
qualifies as my principal
------------------------------------------------
residence within the meaning of the Internal Revenue Code Section 1034.
\ \ CORPORATIONS:
The above-named corporation has a permanent place of business in California
at the address shown above or is qualified to do business in California.
\ \ PARTNERSHIPS:
The above-named entity is a partnership and the recorded title to the
property is in the name of the partnership. The partnership will file a
California return to report the sale and will withhold on foreign and
domestic nonresident partners when required.
\ \ LIMITED LIABILITY COMPANIES (LLCS):
The above-named entity is an LLC and the recorded title to the property is
in the name of the LLC. The LLC will file a California return to report
the sale and will withhold on foreign and domestic nonresident partners
when required.
21
<PAGE>
\ \ TAX-EXEMPT ENTITIES AND NONPROFIT ORGANIZATIONS:
The above-named entity is exempt from tax under California or federal law.
\ \ IRREVOCABLE TRUSTS:
At least one trustee of the above-named irrevocable trust is a California
resident. The trust will file a California fiduciary return reporting the
sale and will withhold on foreign and domestic nonresident beneficiaries
when required.
\ \ CERTIFICATE OF RESIDENCY OF DECEASED PERSON -- ESTATES:
I am the executor of the above-named person's estate. The decedent was a
California resident at the time of death. The estate will file a California
fiduciary return reporting the sale and will withhold on foreign and
domestic nonresident beneficiaries when required.
\ \ BANK:
The above-named entity is a bank or a bank acting as a fiduciary for a
trust. beneficiaries when required.
CERTIFICATE: Please complete and sign below.
Under penalties of perjury, I hereby certify that the information provided
herein is, to the best of my knowledge, true and correct. If conditions change,
I will promptly inform the withholding agent.
Seller's name and title (type or print)
----------------------------------------
Seller's social security number, California corporation number,
FEIN or California Secretary of State file number
-------------------------
(NOTE: Failure to provide your identification number will render this
certificate void.)
Seller's signature Date
----------------------------------------- --------------
For Privacy Act Notice, see form FTB 1131 (individuals only).
<PAGE>
EXHIBIT 10.12
SUMMARY
PURCHASE AND SALE AGREEMENT BETWEEN THE COMPANY AS BUYER AND
THE PRUDENTIAL INSURANCE COMPANY OF AMERICA AND
ONE FEDERAL STREET JOINT VENTURE AS SELLERS
The Purchase and Sale Agreement dated May 29, 1997, between the Company as
buyer and The Prudential Insurance Company of America and One Federal Street
Joint Venture as sellers (the "One Federal Street Agreement") is substantially
identical to the Purchase and Sale Agreement dated May 29, 1997, between the
Company and The Prudential Insurance Company of America covering Texas
properties, which was filed with the Company's Form 10Q for the second quarter
of 1997 (the "Filed Agreement"). Material differences between the One Federal
Street Agreement and the Filed Agreement are set forth below.
Description of the properties to be sold under the One Federal Street
Agreement: see the attached Exhibit A
Purchase price for those properties: $13,200,000
Allocation of purchase price among those properties: see the attached
Exhibit B
Required deposit: $67,278
<PAGE>
EXHIBIT A
ONE FEDERAL STREET PROPERTY PACKAGE
Parcels described in A-23 through A-26, are owned by ONE FEDERAL STREET JOINT
VENTURE, a Massachusetts general partnership for an undivided 50%, and The
Prudential Insurance Company of America, for an undivided 50%.
PRUDENTIAL
PROPERTY # PROPERTY NAME LOCATION EXHIBIT
- -------------- --------------------- ---------------- -------
FED1 00003000 1720 Lewis Jacksonville, FL A-23
FED1 00004000 2000 Lewis Jacksonville, FL A-24
FED1 00005000 2155 North Ellis Road Jacksonville, FL A-25
FED1 00007000 2001 North Ellis Road Jacksonville, FL A-26
2
<PAGE>
EXHIBIT A-23
1720 LEWIS
JACKSONVILLE, FL
[TITLE IS IN THE-NAME OF ONE FEDERAL STREET JOINT VENTURE, A MASSACHUSETTS
GENERAL PARTNERSHIP FOR AN UNDIVIDED 50%; THE PRUDENTIAL INSURANCE COMPANY OF
AMERICA FOR AN UNDIVIDED 50%]
A part of Section 7, Township 2 South, Range 26 East, Duval County, Florida,
being more particularly described as follows:
COMMENCING at the intersection of the Easterly right of way lien of Ellis Road
(a 70 foot right of way) with the Southerly right of way line of 12th Street (a
60 foot right of way); thence North 89 15'10" East along said Southerly right of
way line of 12th Street, a distance of 961.01 feet; thence South 00 35'55" West
along the Easterly line of those certain lands described in Official Records
Volume 5570, Page 1033 of the Current Public Records of said County, a distance
of 1275.00 feet to the Southeast corner thereof for a POINT OF BEGINNING; thence
North 89 15'10" East, a distance of 541.56 feet to a point situate in the
Westerly right of way line of Lewis Industrial Drive (a 60 foot right of way as
now established) said right of way line being a curve concave Westerly and
having a radius of 845.28 feet; thence Southerly around and along said curve and
along said Westerly right of way line, an arc distance of 166.60 feet, said arc
being subtended by a chord bearing and distance of South 17 39'59" West, 166.33
feet to the point of tangency of said curve, thence South 23 18'45" West, and
continuing along said Westerly right of way line, a distance of 280.09 feet to
the point of curvature of a curve to the left, concave Easterly and having a
radius of 984.66 feet; thence Southerly around and along the arc of said curve
and continuing along said Westerly right of way line, an arc distance of 50.16
feet, said arc being subtended by a chord bearing and distance of South 21
51'11" West, 50.16 feet; thence South 89 15'10" West, a distance of 816.36 feet;
thence North 00 35'55" East, a distance of 460.00 feet to the Southwest corner
of said lands described in Official Records Volume 5570, Page 1033; thence North
89 15'10" East, along the South line of said last mentioned lands, a distance of
450.00 feet to the Southeast corner thereof and the POINT OF BEGINNING.
Containing 9.609 acres.
3
<PAGE>
EXHIBIT A-24
2000 LEWIS
JACKSONVILLE, FL
[TITLE IS IN THE NAME OF ONE FEDERAL STREET JOINT VENTURE, A MASSACHUSETTS
GENERAL PARTNERSHIP FOR AN UNDIVIDED 50%; THE PRUDENTIAL INSURANCE COMPANY OF
AMERICA FOR AN UNDIVIDED 50%]
PARCEL 1:
A portion of Section 7, Township 2 South, Range 26 East, Duval County, Florida
and being more particularly described as follows:
COMMENCE at the intersection of the Easterly right of way line of Ellis Road (a
70 foot right of way) with the Southerly right of way line of 12th Street (a 60
foot right of way); thence North 89 15'10" East, along said Southerly right of
way line, a distance of 961.01 feet; thence South 00 35'55" West, a distance of
701.00 feet to the POINT OF BEGINNING; thence North 89 15'10" East, a distance
of 538.02 feet to a point situate in the Westerly right of way line of Lewis
Industrial Drive (a 60 foot right of way); thence South 02 25'19" East, along
last said line, a distance of 15.17 feet to its intersection with the arc of a
curve concave Easterly and having a radius of 45.00 feet; thence Southerly along
and around the arc of said curve, an arc distance of 75.69 feet, said arc being
subtended by a chord bearing and distance of South 02 25'19" East, 67.08 feet;
thence South 02 25'19" East, and continuing along said Westerly right of way
line of Lewis Industrial Drive, a distance of 280.24 feet to the Point of
Curvature of a curve to the right; thence along and around the arc of said curve
concave Westerly and having a radius of 845.28 feet and continuing along said
Westerly right of way line, an arc distance of 69.57 feet, said arc being
subtended by a chord bearing and distance of South 00 03'51" East, 69.55 feet;
thence South 89 15'10" West, a distance of 557.93 feet; thence North 00 35'55"
East, a distance of 432.00 feet to the POINT OF BEGINNING.
Containing 5.4297 acres, more or less.
Being the same lands recorded in Official Records Volume 6267, Page 1833.
PARCEL 2:
A part of Section 7, Township 2 South, Range 26 East, Duval County, Florida,
being more particularly described as follows:
COMMENCING at the intersection of the Easterly right of way line of Ellis Road
(a 70 foot right of way) with the Southerly right of way line of 12th Street (a
60 foot right of way); thence North 89 15'10" East along said Southerly right of
way line of 12th Street, a distance of 961.01 feet, thence South 00 35'55" West
along the Easterly line of those certain lands described in Official Records
Volume 5570, Page 1033 of the Current Public Records of said County, a distance
of 1133.00 feet for a POINT OF BEGINNING; thence North 89 15'10" East along the
Southerly line of those certain lands described in Official Records Volume 6267,
Page 1833 of said Current Public Records, a distance of 557.93 feet to a point
situate in the Westerly right of way line of Lewis Industrial Drive (a 60 foot
right of way as now
4
<PAGE>
established) said right of way line being a curve concave Westerly and having a
radius of 845.28 feet; thence Southerly around and along said curve and along
said Westerly right of way line, an arc distance of 143.49 feet, said arc being
subtended by a chord bearing and distance of South 07 09'24" West, 143.32 feet;
thence South 89 15'10" West, a distance of 541.56 feet to the Southeast corner
of said lands described in Official Records Volume 5570, Page 1033; thence North
00 35'55" East, along said Easterly line of said last mentioned lands, a
distance of 142.00 feet to the POINT OF BEGINNING.
Containing 1.7983 acres.
5
<PAGE>
EXHIBIT A-25
2115 NORTH ELLIS
JACKSONVILLE, FL
[TITLE IS IN THE NAME OF ONE FEDERAL STREET JOINT VENTURE, A MASSACHUSETTS
GENERAL PARTNERSHIP FOR AN UNDIVIDED 50%; THE PRUDENTIAL INSURANCE COMPANY OF
AMERICA FOR AN UNDIVIDED 50%]
A parcel of land lying in the Northwest 1/4 of Section 7, Township 2 South,
Range 26 East, Jacksonville, Duval County, Florida, being more particularly
described as follows:
COMMENCE at the intersection of the Easterly right of way line of Ellis Road (a
70 foot right of way as now established) with the Easterly prolongation of the
South line of the Northwest 1/4 of the Northwest 1/4 of said Section (said line
being also the Easterly prolongation of the Southerly line of Mays Subdivision,
as recorded in Plat Book 6, Page 54 of the Current Public Records of said
County, and the Northerly line of that 60 foot drainage easement described in
agreement of September 2, 1964, between Seaboard Airline Railroad Company and
the Board of County Commissioners of Duval County, Florida); from the Point of
Reference thus described run thence North 00 35'55" East, along said Easterly
right of way line of Ellis Road, a distance of 858.61 feet to a point for a
POINT OF BEGINNING; thence continue North 00 35'55" East, along said right of
way line, a distance of 464.39 feet to the point of intersection of said
Easterly right of way line with the Southerly right of way line of 12th Street
(formerly Mays Road, a 60 foot right of way as now established); thence North 89
15'10" East, along said Southerly right of way line, a distance of 435.99 feet
to the point of intersection of said Southerly right of way line and the
centerline of said drainage easement; thence South 00 35'55" West, along said
centerline, a distance of 456.38 feet to a point; thence South 88 12'05" West, a
distance of 436.25 feet to the POINT OF BEGINNING.
The lands thus described contain 4.292 acres, more or less, exclusive of the
lands lying within said drainage easement.
DRAINAGE EASEMENT
A portion of the Northwest 1/4 of Section 7, Township 2 South, Range 26 East,
Jacksonville, Duval County, Florida, as more particularly described as follows:
COMMENCE at the point of intersection of the Easterly right of way line of Ellis
Road (a 70 foot right of way as now established) with the Easterly prolongation
of the South line of the Northwest 1/4 of the Northwest 1/4 of said Section
(said line being also the Easterly prolongation of the Southerly line of Mays
Subdivision, as recorded in Plat Book 6, Page 34 of the Public Records of said
County and the Northerly line of that 60 foot drainage easement described in
agreement dated September 2, 1964, between Seaboard Airline Railroad Company and
the Board of County Commissioners of Duval County, Florida); thence North 00
35'55" East, along said Easterly right of way line of Ellis Road, 858.61 feet,
thence North 88 12'05" East, 120.00 feet to the POINT OF BEGINNING; thence
continue North 88 12'05" East, 270.00 feet; thence South 00 35'55" East, 15.00
feet; thence South 88 12'05" West, 270.00 feet; thence North 00 35'55" West,
15.00 feet to the POINT OF BEGINNING.
Containing 0.0930 acres, more or less.
6
<PAGE>
(Revised description for O.R.V. 5572, Pg. 1729
15 FOOT WATER LINE EASEMENT
A part of the Northwest 1/4 of Section 7, Township 2 South, Range 26 East, Duval
County, Florida, lying 7.5 feet either side of the following described
centerline: COMMENCING at the intersection of the Southerly right of way line of
West 12th Street (a 60 foot right of way) with the Easterly right of way line of
Ellis Road (a 70 foot right of way); thence South 00 35'55" West, along said
Easterly right of way line of Ellis Road, a distance of 454.50 feet for a POINT
OF BEGINNING of said centerline; thence North 89 24'05" East, a distance of
99.32 feet; thence North 44 24'05" East, a distance of 29.50 feet; thence North
89 24'05" East, a distance of 316.22 feet to a point situate in the centerline
of that certain 60 foot County Drainage Easement (by agreement dated September
2, 1964) which lies South 00 35'55" East, a distance of 434.77 feet, as measured
along said centerline of County Drainage Easement from said Southerly right of
way line of West 12th Street and the terminus of said centerline.
7
<PAGE>
EXHIBIT A-26
2001 NORTH ELLIS
JACKSONVILLE, FL
[TITLE IS IN THE NAME OF ONE FEDERAL STREET JOINT VENTURE, A MASSACHUSETTS
GENERAL PARTNERSHIP FOR AN UNDIVIDED 50%; THE PRUDENTIAL INSURANCE COMPANY OF
AMERICA FOR AN UNDIVIDED 50%]
A parcel of land lying in the Northwest 1/4 of Section 7, Township 2 South,
Range 26 East, Jacksonville, Duval County, Florida, being more particularly
described as follows:
COMMENCE at the intersection of the Easterly right of way line of Ellis Road (a
70 foot right of way as now established) with the Easterly prolongation of the
South line of the Northwest 1/4 of the Northwest 1/4 of said Section (said line
also being the Easterly prolongation of the Southerly line of Mays Subdivision,
as recorded in Plat Book 6, Page 54 of the Current Public Records of said
County, and the Northerly line of that 60 foot drainage easement described in
agreement of September 2, 1964 between Seaboard Airline Railroad Company and the
Board of County Commissioners of Duval County, Florida). From the Point of
Reference thus described, run South 00 35'55" West, along said Easterly right of
way line of Ellis Road, a distance of 30.03 feet to a point on the Centerline of
said drainage easement for a POINT OF BEGINNING; thence North 00 35'55" East,
along said right of way line, a distance of 888.64 feet to a point; thence North
88 12'05" East, a distance of 436.25 feet to a point on the centerline of said
drainage easement; thence South 00 35'55" West, along said centerline, a
distance of 888.64 feet to an angle point in said centerline, thence South 88
12'05" West, along said centerline, a distance of 436.25 feet to the POINT OF
BEGINNING.
The lands thus described contains 8.00 acres, more or less, exclusive of the
lands lying within said drainage easement.
DRAINAGE EASEMENT
A portion of the Northwest 1/4 of Section 7, Township 2 South, Range 26 East,
Jacksonville, Duval County, Florida, as more particularly described as follows:
COMMENCE at the point of intersection of the Easterly right of way line of Ellis
Road (a 70 foot right of way as now established) with the Easterly prolongation
of the South line of the Northwest 1/4 of the Northwest 1/4 of said Section
(said line being also the Easterly prolongation of the Southerly line of Mays
Subdivision, as recorded in Plat Book 6, Page 34 of the Public Records of said
County and the Northerly line of that 60 foot drainage easement described in
agreement dated September 2, 1964, between Seaboard Airline Railroad Company and
the Board of County Commissioners of Duval County, Florida); thence North 00
35'55" East, along said Easterly right of way line of Ellis Road, 858.61 feet;
thence North 88 12'05" East, 120.00 feet to the Point OF BEGINNING; thence
continue North 88 12'05" East, 270.00 feet, thence South 00 35'55" East, 15.00
feet; thence South 88 12'05" West, 270.00 feet; thence North 00 35'55'' West,
15.00 feet to the POINT OF BEGINNING.
Containing 0.0930 acres, more or less.
8
<PAGE>
EXHIBIT B
ALLOCATION OF PURCHASE PRICE
PROJECT DESCRIBED ALLOCATED PRICE
$
100% 50% for each owner
A-23 1720 LEWIS 2,965,818 1,482,909.00
A-24 2000 LEWIS 2,148,150 1,074,075.00
A-25 2155 NORTH ELLIS 2,880,359 1,440,179.50
A-26 2001 NORTH ELLIS 5,205,673 2,602,836.50
9
<PAGE>
FIRST AMENDMENT TO
PURCHASE AND SALE AGREEMENT
THIS FIRST AMENDMENT TO PURCHASE AND SALE AGREEMENT ("First
Amendment") is entered into as of July 7, 1997 by and between Meridian
Industrial Trust, Inc., a Maryland corporation ("Buyer"), and The Prudential
Insurance Company of America, a New Jersey corporation, and One Federal Street
Joint Venture, a Massachusetts general partnership (jointly, "Seller").
RECITALS
A. Buyer and Seller entered into that certain Purchase and Sale
Agreement, dated as of May 29, 1997 (the "Agreement"), for the purchase and sale
of real property designated as "REAL ESTATE IN JACKSONVILLE FLORIDA" as more
particularly described on Exhibit A to the Agreement, together with certain
personal property, lease interests and intangible property, all as more
particularly described in the Agreement.
B. Buyer and Seller now desire to modify the Agreement as provided
herein.
C. Capitalized terms in this First Amendment not defined herein
shall have the meanings ascribed to them in the Agreement.
NOW, THEREFORE, in consideration of the mutual covenants contained
herein, Buyer and Seller agree as follows:
1. DUE DILIGENCE PERIOD. The expiration date of the Due Diligence
Period is extended from July 7, 1997 to and including July 22, 1997. In
addition, the date "July 7, 1997" where it appears in Section 4.3 of the
Agreement is deleted and replaced with the phrase "the end of the Due Diligence
Period".
2. CLOSING DATE. Seller acknowledges that the Closing Date has been
extended until September 30, 1997 (i.e., the Option Closing Date) pursuant to
Election Notice duly given by Buyer.
3. CONFLICT IN TERMS. In the event of any conflict or inconsistency
between the terms and conditions of this First Amendment and the terms and
conditions of the Agreement, the terms and conditions of this First Amendment
shall govern and control the rights and obligations of the parties hereto.
4. EFFECT OF FIRST AMENDMENT. Except as expressly modified herein,
all terms and conditions of the Agreement remain unmodified and in full force
and effect.
10
<PAGE>
5. COUNTERPARTS. This First Amendment may be executed in one or
more counterparts, each of which may be deemed an original, and all of which,
when taken together, shall constitute one and the same instrument. This First
Amendment may be executed via telecopied signatures with original signatures to
follow.
IN WITNESS WHEREOF, Buyer and Seller have executed this First
Amendment as of the date first above written.
BUYER
MERIDIAN INDUSTRIAL TRUST, INC.,
a Maryland corporation
By:
------------------------------
Its:
------------------------------
SELLER
THE PRUDENTIAL INSURANCE COMPANY OF AMERICA, a New
Jersey corporation
By:
------------------------------
Bernard C. Buchholz
Its: Vice President
ONE FEDERAL STREET JOINT VENTURE,
a Massachusetts general partnership
By: The Prudential Insurance Company Of America, a New
Jersey corporation
Its: General Partner
By:
------------------------------
Bernard C. Buchholz
Its: Vice President
11
<PAGE>
SECOND AMENDMENT TO
PURCHASE AND SALE AGREEMENT
THIS SECOND AMENDMENT TO PURCHASE AND SALE AGREEMENT ("Second
Amendment") is entered into as of July 22, 1997 by and between Meridian
Industrial Trust, Inc., a Maryland corporation ("Buyer"), and The Prudential
Insurance Company of America, a New Jersey corporation, and One Federal Street
Joint Venture, a Massachusetts general partnership (jointly, "Seller").
RECITALS
A. Buyer and Seller entered into that certain Purchase and Sale
Agreement dated as of May 29, 1997, and that certain First Amendment thereto
dated as of July 7, 1997 (the "First Amendment") (jointly the "Agreement"), for
the purchase and sale of real property designated "REAL ESTATE IN JACKSONVILLE
FLORIDA", as more particularly described on Exhibit A to the Agreement, together
with certain personal property, lease interests and intangible property, all as
more particularly described in the Agreement.
B. Buyer and Seller now desire to modify the Agreement as provided
herein.
C. Capitalized terms in this Second Amendment not defined herein
shall have the meanings ascribed to them in the Agreement.
NOW, THEREFORE, in consideration of the mutual covenants contained
herein, Buyer and Seller agree as follows:
1. DUE DILIGENCE PERIOD. The expiration date of the Due Diligence
Period is extended from July 22, 1997 to and including August 5, 1997.
2. CONFLICT IN TERMS. In the event of any conflict or inconsistency
between the terms and conditions of this Second Amendment and the terms and
conditions of the Agreement, the terms and conditions of this Second Amendment
shall govern and control the rights and obligations of the parties hereto.
3. EFFECT OF SECOND AMENDMENT. Except as expressly modified herein,
all terms and conditions of the Agreement remain unmodified and in full force
and effect.
12
<PAGE>
4. COUNTERPARTS. This Second Amendment may be executed in one or
more counterparts, each of which may be deemed an original, and all of which,
when taken together, shall constitute one and the same instrument. This Second
Amendment may be executed via telecopied signatures with original signatures to
follow.
IN WITNESS WHEREOF, Buyer and Seller have executed this Second
Amendment as of the date first above written.
BUYER
MERIDIAN INDUSTRIAL TRUST, INC.,
a Maryland corporation
By:
------------------------------
Robert A. Dobbin
Secretary
SELLER
THE PRUDENTIAL INSURANCE COMPANY OF AMERICA, a New
Jersey corporation
By:
------------------------------
Bernard C. Buchholz
Its: Vice President
ONE FEDERAL STREET JOINT VENTURE,
a Massachusetts general partnership
By: The Prudential Insurance Company Of America, a New
Jersey corporation
Its: General Partner
By:
------------------------------
Bernard C. Buchholz
Its: Vice President
13
<PAGE>
THIRD AMENDMENT TO
PURCHASE AND SALE AGREEMENT
THIS THIRD AMENDMENT TO PURCHASE AND SALE AGREEMENT ("Third
Amendment") is entered into as of August 5, 1997 by and between Meridian
Industrial Trust, Inc., a Maryland corporation ("Buyer"), and The Prudential
Insurance Company of America, a New Jersey corporation, and One Federal Street
Joint Venture, a Massachusetts general partnership (jointly, "Seller").
RECITALS
A. Buyer and Seller entered into that certain Purchase and Sale
Agreement dated as of May 29, 1997, that certain First Amendment thereto dated
as of July 7, 1997, and that certain Second Amendment thereto dated July 22,
1997 (collectively, the "Agreement"), for the purchase and sale of real property
designated "REAL ESTATE IN JACKSONVILLE FLORIDA", as more particularly
described on Exhibit A to the Agreement, together with certain personal
property, lease interests and intangible property, all as more particularly
described in the Agreement.
B. Buyer and Seller now desire to modify the Agreement as provided
herein.
C. Capitalized terms in this Third Amendment not defined herein
shall have the meanings ascribed to them in the Agreement.
NOW, THEREFORE, in consideration of the mutual covenants contained
herein, Buyer and Seller agree as follows:
1. DUE DILIGENCE PERIOD. The expiration date of the Due Diligence
Period is extended from August 5, 1997 to and including August 20, 1997.
2. CONFLICT IN TERMS. In the event of any conflict or inconsistency
between the terms and conditions of this Third Amendment and the terms and
conditions of the Agreement, the terms and conditions of this Third Amendment
shall govern and control the rights and obligations of the parties hereto.
3. EFFECT OF THIRD AMENDMENT. Except as expressly modified herein,
all terms and conditions of the Agreement remain unmodified and in full force
and effect.
14
<PAGE>
4. COUNTERPARTS. This Third Amendment may be executed in one or
more counterparts, each of which may be deemed an original, and all of which,
when taken together, shall constitute one and the same instrument. This Third
Amendment may be executed via telecopied signatures with original signatures to
follow.
IN WITNESS WHEREOF, Buyer and Seller have executed this Third
Amendment as of the date first above written.
BUYER
MERIDIAN INDUSTRIAL TRUST, INC.,
a Maryland corporation
By:
------------------------------
Robert A. Dobbin
Its: Secretary
SELLER
THE PRUDENTIAL INSURANCE COMPANY OF AMERICA, a New
Jersey corporation
By:
------------------------------
Bernard C. Buchholz
Its: Vice President
ONE FEDERAL STREET JOINT VENTURE,
a Massachusetts general partnership
By: The Prudential Insurance Company Of America, a New
Jersey corporation
Its: General Partner
By:
------------------------------
Bernard C. Buchholz
Its: Vice President
15
<PAGE>
FOURTH AMENDMENT TO
PURCHASE AND SALE AGREEMENT
THIS FOURTH AMENDMENT TO PURCHASE AND SALE AGREEMENT ("Fourth
Amendment") is entered into as of August 20, 1997 by and between Meridian
Industrial Trust, Inc., a Maryland corporation ("Buyer"), and The Prudential
Insurance Company of America, a New Jersey corporation, and One Federal Street
Joint Venture, a Massachusetts general partnership (jointly, "Seller").
RECITALS
A. Buyer and Seller entered into that certain Purchase and Sale
Agreement dated as of May 29, 1997, that certain First Amendment thereto dated
as of July 7, 1997, that certain Second Amendment thereto dated July 22, 1997,
and that certain Third Amendment thereto dated August 5, 1997 (collectively, the
"Agreement"), for the purchase and sale of real property designated "REAL ESTATE
IN JACKSONVILLE FLORIDA", as more particularly described on Exhibit A to the
Agreement, together with certain personal property, lease interests and
intangible property, all as more particularly described in the Agreement.
B. Buyer and Seller now desire to modify the Agreement as provided
herein.
C. Capitalized terms in this Fourth Amendment not defined herein
shall have the meanings ascribed to them in the Agreement.
NOW, THEREFORE, in consideration of the mutual covenants contained
herein, Buyer and Seller agree as follows:
1. DUE DILIGENCE PERIOD. The expiration date of the Due Diligence
Period is extended from August 20, 1997 to and including September 5, 1997.
2. CONFLICT IN TERMS. In the event of any conflict or inconsistency
between the terms and conditions of this Fourth Amendment and the terms and
conditions of the Agreement, the terms and conditions of this Fourth Amendment
shall govern and control the rights and obligations of the parties hereto.
3. EFFECT OF FOURTH AMENDMENT. Except as expressly modified herein,
all terms and conditions of the Agreement remain unmodified and in full force
and effect.
16
<PAGE>
4. COUNTERPARTS. This Fourth Amendment may be executed in one or
more counterparts, each of which may be deemed an original, and all of which,
when taken together, shall constitute one and the same instrument. This Fourth
Amendment may be executed via telecopied signatures with original signatures to
follow.
IN WITNESS WHEREOF, Buyer and Seller have executed this Fourth
Amendment as of the date first above written.
BUYER
MERIDIAN INDUSTRIAL TRUST, INC.,
a Maryland corporation
By:
------------------------------
Robert A. Dobbin
Its: Secretary
SELLER
THE PRUDENTIAL INSURANCE COMPANY OF AMERICA, a New
Jersey corporation
By:
------------------------------
Bernard C. Buchholz
Its: Vice President
ONE FEDERAL STREET JOINT VENTURE,
a Massachusetts general partnership
By: The Prudential Insurance Company Of America, a New
Jersey corporation
Its: General Partner
By:
------------------------------
Bernard C. Buchholz
Its: Vice President
17
<PAGE>
FIFTH AMENDMENT TO
PURCHASE AND SALE AGREEMENT
THIS FIFTH AMENDMENT TO PURCHASE AND SALE AGREEMENT ("Fifth
Amendment") is entered into as of September 5, 1997 by and between Meridian
Industrial Trust, Inc., a Maryland corporation ("Buyer"), and The Prudential
Insurance Company of America, a New Jersey corporation, and One Federal Street
Joint Venture, a Massachusetts general partnership (jointly, "Seller").
RECITALS
A. Buyer and Seller entered into that certain Purchase and Sale
Agreement dated as of May 29, 1997, that certain First Amendment thereto dated
as of July 7, 1997, that certain Second Amendment thereto dated July 22, 1997,
that certain Third Amendment thereto dated August 5, 1997, and that certain
Fourth Amendment thereto dated August 20, 1997 (collectively, the "Agreement"),
for the purchase and sale of real property designated "REAL ESTATE IN
JACKSONVILLE FLORIDA", as more particularly described on Exhibit A to the
Agreement, together with certain personal property, lease interests and
intangible property, all as more particularly described in the Agreement.
B. Buyer and Seller now desire to modify the Agreement as provided
herein.
C. Capitalized terms in this Fifth Amendment not defined herein
shall have the meanings ascribed to them in the Agreement.
NOW, THEREFORE, in consideration of the mutual covenants contained
herein, Buyer and Seller agree as follows:
1. DUE DILIGENCE PERIOD. The expiration date of the Due Diligence
Period is extended from September 5, 1997 to and including September 15, 1997.
2. CONFLICT IN TERMS. In the event of any conflict or inconsistency
between the terms and conditions of this Fifth Amendment and the terms and
conditions of the Agreement, the terms and conditions of this Fifth Amendment
shall govern and control the rights and obligations of the parties hereto.
3. EFFECT OF FIFTH AMENDMENT. Except as expressly modified herein,
all terms and conditions of the Agreement remain unmodified and in full force
and effect.
18
<PAGE>
4. COUNTERPARTS. This Fifth Amendment may be executed in one or
more counterparts, each of which may be deemed an original, and all of which,
when taken together, shall constitute one and the same instrument. This Fifth
Amendment may be executed via telecopied signatures with original signatures to
follow.
IN WITNESS WHEREOF, Buyer and Seller have executed this Fifth
Amendment as of the date first above written.
BUYER
MERIDIAN INDUSTRIAL TRUST, INC.,
a Maryland corporation
By:
------------------------------
Jaime Suarez
Its: Vice President
SELLER
THE PRUDENTIAL INSURANCE COMPANY OF AMERICA, a New
Jersey corporation
By:
------------------------------
Bernard C. Buchholz
Its: Vice President
ONE FEDERAL STREET JOINT VENTURE,
a Massachusetts general partnership
By: The Prudential Insurance Company Of America, a New
Jersey corporation
Its: General Partner
By:
------------------------------
Bernard C. Buchholz
Its: Vice President
19
<PAGE>
SIXTH AMENDMENT TO
PURCHASE AND SALE AGREEMENT
THIS SIXTH AMENDMENT TO PURCHASE AND SALE AGREEMENT ("Sixth
Amendment") is entered into as of September 8, 1997 by and between Meridian
Industrial Trust, Inc., a Maryland corporation ("Buyer"), and The Prudential
Insurance Company of America, a New Jersey corporation, and One Federal Street
Joint Venture, a Massachusetts general partnership (jointly, "Seller").
RECITALS
A. Buyer and Seller entered into that certain Purchase and Sale
Agreement dated as of May 29, 1997, that certain First Amendment thereto dated
as of July 7, 1997, that certain Second Amendment thereto dated July 22, 1997,
that certain Third Amendment thereto dated August 5, 1997, that certain Fourth
Amendment thereto dated August 20, 1997, and that certain Fifth Amendment
thereto dated September 5, 1997 (collectively, the "Agreement"), for the
purchase and sale of real property designated "REAL ESTATE IN JACKSONVILLE
FLORIDA", as more particularly described on Exhibit A to the Agreement, together
with certain personal property, lease interests and intangible property, all as
more particularly described in the Agreement.
B. Buyer and Seller now desire to modify the Agreement as provided
herein.
C. Capitalized terms in this Sixth Amendment not defined herein
shall have the meanings ascribed to them in the Agreement.
NOW, THEREFORE, in consideration of the mutual covenants contained
herein, Buyer and Seller agree as follows:
1. PURCHASE PRICE ADJUSTMENT. The total Purchase Price for the
Property is reduced to Twelve Million Five Hundred Ninety-Seven Thousand Three
Hundred Thirty-Five and No/100 Dollars ($12,597,335.00), and shall be allocated
between the projects comprising the Property as set forth on EXHIBIT A attached
hereto.
2. LEASE ADJUSTMENT REIMBURSEMENT. Buyer acknowledges that the
Purchase Price for the projects identified as 2001 North Ellis and 1720 Lewis on
EXHIBIT A hereto have been reduced by the amount of One Hundred Seventy-Two
Thousand Eight Hundred Ninety-Five and No/100 Dollars ($172,895.00) and One
Hundred Seventy Thousand Two Hundred Ninety-Five and No/100 Dollars
($170,295.00), respectively, for the reason that GATX Logistics has not renewed
its existing Leases or entered into new Leases at such projects prior to
Closing. In the event GATX Logistics either: (a) renews one or both of its
existing Leases, or (b) executes a new Lease at either or both projects, in
either case for a term of not less than three (3) years at market rental rates,
on or before the date that is five (5) months after the expiration date of such
existing Lease(s), Buyer shall reimburse either or both of the above amounts to
Seller, as appropriate, without interest, within thirty (30) days following the
date of execution of such Lease renewal(s) or new Lease(s).
20
<PAGE>
3. REAL PROPERTY. Section 1.1 of the Agreement is hereby amended by
inserting the words "EXHIBIT A and" in the second line thereof after the phrase
"more particularly described in".
4. DESIGNATED EMPLOYEES. Buyer and Seller hereby acknowledge and
agree that the persons to be listed on EXHIBIT P to the Agreement, which persons
comprise the "Designated Employees" in accordance with Section 8.3.3 of the
Agreement for all projects comprising the Property, are those persons set forth
on EXHIBIT B attached hereto.
5. ENVIRONMENTAL REPORTS OR SURVEYS. Buyer acknowledges that Seller
has advised Buyer of the existence of those certain environmental reports or
surveys relating to the Property listed on EXHIBIT C attached hereto, which
replaces EXHIBIT Q to the Agreement.
6. ASSIGNMENT OF OPERATING AGREEMENTS. Notwithstanding the terms
and provisions of those certain Assignments of Operating Agreements to be
executed by Buyer and Seller with respect to each project comprising the
Property (the "Assignments") pursuant to the Agreement, Seller and Buyer hereby
agree that only those operating agreements set forth on SCHEDULE A to any such
Assignment that are cancellable upon thirty (30) days' notice shall be assigned
by Seller and assumed by Buyer pursuant to any such Assignment. The assignment
and assumption of any operating agreement listed on any such SCHEDULE A which is
not so cancellable shall be void AB INITIO. The terms and provisions of this
Paragraph 6 of this Sixth Amendment shall survive the Closing.
7. DIRECTED CONVEYANCE. As an accommodation to Buyer, Seller shall
at Closing convey all projects comprising the Property designated on EXHIBIT A
hereto to EASTGROUP PROPERTIES, L.P., a Delaware limited partnership
("Eastgroup"), and Escrow Agent shall provide for execution of the
closing/settlement statements for such projects by Buyer, Seller and Eastgroup.
8. CONFLICT IN TERMS. In the event of any conflict or inconsistency
between the terms and conditions of this Sixth Amendment and the terms and
conditions of the Agreement, the terms and conditions of this Sixth Amendment
shall govern and control the rights and obligations of the parties hereto.
9. EFFECT OF SIXTH AMENDMENT. Except as expressly modified herein,
all terms and conditions of the Agreement remain unmodified and in full force
and effect.
10. COUNTERPARTS. This Sixth Amendment may be executed in one or
more counterparts, each of which may be deemed an original, and all of which,
when taken together, shall constitute one and the same instrument. This Sixth
Amendment maybe executed via telecopied signatures with original signatures to
follow.
IN WITNESS WHEREOF, Buyer and Seller have executed this Sixth
Amendment as of the date first above written.
BUYER
MERIDIAN INDUSTRIAL TRUST, INC.,
21
<PAGE>
a Maryland corporation
By:
------------------------------
Robert A. Dobbin
Its: Secretary
SELLER
THE PRUDENTIAL INSURANCE COMPANY OF AMERICA, a New
Jersey corporation
By:
------------------------------
Bernard C. Buchholz
Its: Vice President
ONE FEDERAL STREET JOINT VENTURE,
a Massachusetts general partnership
By: The Prudential Insurance Company Of America, a New
Jersey corporation
Its: General Partner
By:
------------------------------
Bernard C. Buchholz
Its: Vice President
22
<PAGE>
PURCHASE PRICE ALLOCATIONS
PROPERTY/PROJECT PRICE ($)
1720 Lewis 2,911,189
2000 Lewis 2,136,670
2155 North Ellis 2,856,797
2001 North Ellis 4,692,679
---------
Total 12,597,335
23
<PAGE>
EXHIBIT 10.13
AGREEMENT REGARDING REAL PROPERTY
This AGREEMENT REGARDING REAL PROPERTY ("Agreement") is entered into as of
September 22, 1997 by and between Meridian Industrial Trust, Inc., a Maryland
corporation ("Meridian"), and EastGroup Properties, L.P., a Delaware limited
partnership ("EastGroup").
RECITALS
A. Meridian is the contract purchaser under the following agreements:
(i) Purchase and Sale Agreement (Industrial Package Sale - Michigan, Louisiana
and Virginia) dated May 29, 1997 by and between The Prudential Insurance Company
of America ("Prudential"), as seller, and Meridian, as buyer (as amended, the
"Louisiana Agreement"), (ii) Purchase and Sale Agreement (Industrial Package
Sale - 460 Ellis Road (Jacksonville) and Centerport) dated May 29, 1997 by and
between Prudential, as seller, and Meridian, as buyer (as amended, the "Ellis
Road Agreement") and (iii) Purchase and Sale Agreement (Real Estate in
Jacksonville, Florida) dated May 29, 1997 by and between Prudential and One
Federal Street Joint Venture, as sellers, and Meridian, as buyer (as amended,
the "Jacksonville Agreement"). The Louisiana Agreement, the Ellis Road
Agreement and the Jacksonville Agreement are sometimes referred to collectively
herein as the "Purchase Agreements". Capitalized terms used in this Agreement
and not defined herein shall have the meanings set forth in the Purchase
Agreements.
B. Pursuant to the Purchase Agreements, Meridian has agreed to purchase
from the sellers thereunder (the "Sellers"), and the Sellers have agreed to sell
to Meridian, the Real Property, Personal Property and other property rights
described therein. Meridian desires to exercise its right to require the
Sellers to convey a portion of the Real Property described in the Purchase
Agreements directly to EastGroup. Such portion of the Real Property is referred
to herein as the "Subject Property", and the Real Property component thereof is
more fully described in EXHIBIT A attached hereto.
C. Meridian desires to assist and cooperate with EastGroup to facilitate
EastGroup's acquisition of the Subject Property, and EastGroup desires to
(i) acquire the Subject Property and (ii) pay that portion of the Purchase Price
under the Purchase Agreements that applies to the Subject Property, all as more
fully set forth in this Agreement.
D. Pursuant to the Purchase Agreements, the Sellers have agreed to
transfer the Subject Property directly to EastGroup at the Closing on the sale
of the Real Property.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Meridian and EastGroup hereby
agree as follows:
1. TRANSFER OF SUBJECT PROPERTY. With respect to the Subject Property
only, Meridian shall exercise its right to require the Sellers to convey the
Subject Property directly to EastGroup at the Closing. EastGroup shall take
such action as necessary to acquire the Subject Property directly from the
Sellers at the Closing, including, without limitation, paying that portion of
the Purchase Price that applies to the Subject Property.
<PAGE>
2. PURCHASE PRICE. The aggregate purchase price (the "Purchase Price")
for the Subject Property shall be Forty-Nine Million Seven Hundred Nine Thousand
Eight Hundred Forty-Five Dollars ($49,709,845.00), allocated among the projects
comprising the Subject Property as set forth in EXHIBIT B attached hereto,
subject to closing adjustments as provided in the Purchase Agreements. The
Closing shall occur on September 24, 1997. On or before the day that is one (1)
day prior to the Closing under the Purchase Agreements, EastGroup shall execute
the Closing Statements and deposit with Escrow Agent that portion of the
Purchase Price that applies to the Subject Property, plus closing costs as
indicated on the closing statements prepared by Escrow Agent, less the Loan
Amount (as hereinafter defined). EastGroup's failure to timely deposit the
Balance with the Escrow Agent shall be a breach of this Agreement.
3. DEPOSIT. Meridian has made a Deposit with Escrow Agent in respect of
the Real Property in the amount of Two Million Dollars ($2,000,000.00) pursuant
to the terms of the Purchase Agreements, which Deposit shall be credited towards
the Purchase Price of the Real Property other than the Subject Property at
Closing. At Closing, all interest accrued on the Deposit shall be paid to
Meridian by Escrow Agent.
4. LOAN. In connection with EastGroup's purchase of the Subject
Property, at Closing on EastGroup's purchase of the Subject Property, Meridian
and EastGroup shall enter into a loan transaction pursuant to which Meridian
shall lend to EastGroup, and EastGroup shall borrow from Meridian, the sum of
Forty-Five Million Dollars ($45,000,000.00) (the "Loan Amount"), pursuant to and
in accordance with the loan documents ("Loan Documents") executed by EastGroup
at Closing on its purchase of the Subject Property, which Loan Documents are
listed on EXHIBIT C attached hereto.
5. APPROVAL OF DUE DILIGENCE, CONDITION OF TITLE. EastGroup acknowledges
that it has conducted and approved its Due Diligence with respect to the Subject
Property. EastGroup further acknowledges that it has examined, and has approved
the state and condition of title to the Subject Property in accordance with the
Proforma Policies and Title Reports referenced on EXHIBIT D attached hereto.
6. CLOSING COSTS. EastGroup shall pay all fees and costs required of
Meridian, as Buyer, in respect of the Subject Property pursuant to, and in the
manner specified in, the Purchase Agreements.
7. REPRESENTATIONS AND WARRANTIES.
(a) EastGroup represents and warrants to Meridian that: EastGroup is
duly organized or formed, validly existing and in good standing under the laws
of the State of Delaware and is in good standing under the laws of the states in
which the Subject Property is located, and is authorized to consummate the
transactions contemplated hereby and fulfill all of its obligations hereunder
and buyer's obligations under the Purchase Agreements with respect to the
Subject Property and such other documents contemplated hereunder to be executed
by EastGroup, and EastGroup has received all necessary power to execute and
deliver this Agreement and all documents contemplated hereunder to be executed
by EastGroup, and to perform all of the buyer's obligations
2
<PAGE>
under the Purchase Agreements with respect to the Subject Property and
EastGroup's obligations hereunder; this Agreement and all documents contemplated
hereunder to be executed by EastGroup have been duly authorized by all requisite
action on the part of EastGroup and are the valid and legally binding
obligations of EastGroup, enforceable in accordance with their respective terms;
neither the execution and delivery of this Agreement and all documents
contemplated hereunder to be executed by EastGroup, nor the performance of the
obligations of EastGroup hereunder or thereunder will result in the violation of
any provision of the organizational documents of EastGroup or to EastGroup's
knowledge will conflict with any order or decree of any court or governmental
instrumentality by which EastGroup is bound; and EastGroup has the financial
capability to complete the transaction contemplated in this Agreement and the
Purchase Agreements.
(b) Meridian warrants and represents to EastGroup that: Meridian is
duly organized, validly existing and in good standing under the laws of the
State of Maryland, and is authorized to consummate the transactions contemplated
hereby, and fulfill all of its obligations hereunder and such other documents
contemplated hereunder to be executed by Meridian, and Meridian has received all
necessary power to execute and deliver this Agreement and all documents
contemplated hereunder to be executed by Meridian; this Agreement and all
documents contemplated hereunder to be executed by Meridian have been duly
authorized by all requisite action on the part of Meridian and are the valid and
legally binding obligations of Meridian, enforceable in accordance with their
respective terms; neither the execution and delivery of this Agreement and all
documents contemplated hereunder to be executed by Meridian, nor the performance
of the obligations of Meridian hereunder or thereunder will result in the
violation of any provision of the organizational documents of Meridian or to
Meridian's knowledge will conflict with any order or decree of any court or
governmental instrumentality by which Meridian is bound.
8. INDEMNIFICATION.
(a) EastGroup shall indemnify, defend and hold Meridian harmless from
and against any and all loss, cost, claims, damages and liability arising from
or relating to any: (i) breach by EastGroup of Meridian's obligations under the
Purchase Agreements with respect to the Subject Property, or (ii) any breach by
EastGroup of EastGroup's obligations under this Agreement.
(b) Meridian shall indemnify, defend and hold EastGroup harmless from
and against any and all loss, cost, claims, damages and liability arising from
or relating to any: (i) breach by Meridian of Meridian's obligations under the
Purchase Agreements, or (ii) any breach by Meridian of Meridian's obligations
under this Agreement.
9. ESTOPPEL CERTIFICATES. To the extent the same are assignable,
Meridian hereby assigns to EastGroup, effective as of Closing on EastGroup's
purchase of the Subject Property, all the rights and benefits of Meridian in, to
and under all estoppel certificates delivered by tenants of the Subject Property
(or Sellers, or either of them, in respect thereof) to Meridian, and agrees that
Meridian shall, at the request of EastGroup and at EastGroup's sole cost and
expense, endeavor in good faith to enforce the terms of such estoppel
certificates against the signer thereof for the benefit of EastGroup. EastGroup
represents to Meridian that it has reviewed and approved all such estoppel
certificates, and acknowledges that Meridian has made no warranty, express or
implied, respecting the accuracy thereof.
3
<PAGE>
10. PURCHASE AGREEMENTS AND COLLATERAL DOCUMENTS. It is understood and
agreed that Sellers have, prior to the date hereof, executed certain Closing
documents in respect of the Subject Property, which Closing documents identify
Meridian as the purchaser of the Subject Property. Such Closing documents
include, but are not limited to, bills of sale in respect of Personal Property,
and Assignments of Leases and Assignments of Warranties, and are herein referred
to as the "Meridian Collateral Documents". To the extent the same are
assignable, Meridian hereby assigns to EastGroup, effective as of Closing of
EastGroup's purchase of the Subject Property, all the rights and benefits of
Meridian in, to and under the Meridian Collateral Documents (including, but not
limited to, all right, title and interest of Meridian in the Personal Property
conveyed by such bills of sale and all rights of Meridian as successor landlord
under the Leases), and, to the extent the same are assumable, Eastgroup hereby
assumes all the obligations of Meridian thereunder. Meridian shall, at the
request of EastGroup and at EastGroup's sole cost and expense, endeavor in good
faith to enforce Meridian's rights, if any, under the Meridian Collateral
Documents against Sellers, or either of them, for the benefit of EastGroup.
Similarly, Meridian shall, at the request of EastGroup and at EastGroup's sole
cost and expense, endeavor in good faith to enforce against the Sellers, or
either of them, any continuing obligations of the Sellers, or either of them,
under any of the Purchase Agreements, for the benefit of EastGroup, it being the
intent of the parties hereto that EastGroup shall have the benefit, if any,
through Meridian, of the covenants and representations of Sellers under the
Purchase Agreements in respect of the Subject Property. EastGroup acknowledges
that Meridian has made no warranty, express or implied, respecting the accuracy
or assignability of the Meridian Collateral Documents.
11. SUCCESSORS. This Agreement shall inure to the benefit of and be
binding upon the successors and assigns of the parties hereto.
12. FURTHER ASSURANCES. Meridian and EastGroup each agree to execute and
deliver to the other, upon demand, such further documents, instruments and
conveyances, and shall take such further actions as are necessary or desirable
to effectuate this Agreement. Such actions shall include, but not be limited
to, the correction of any manifest errors that may occur in the
Settlement/Closing statements or any of the other Closing documents.
13. ATTORNEYS' FEES. Upon the bringing of any action, suit or arbitration
by any party against the other party arising out of this Agreement or the
subject matter hereof, the party in whose favor final judgment shall be entered
shall be entitled to recover from the other party all costs and expenses of suit
including, without limitation, reasonable attorneys' fees and costs.
14. BROKERS. Meridian represents and warrants to EastGroup, and EastGroup
represents and warrants to Meridian, that no broker or finder has been engaged
by it in connection with the transaction contemplated by this Agreement. In the
event of any such claims for brokers' or finders' fees, EastGroup shall
indemnify, save harmless and defend Meridian from and against such claims if
they shall be based upon any statement or representation or agreement by
EastGroup, and Meridian shall indemnify, save harmless and defend EastGroup if
such claims shall be based upon any statement, representation or agreement made
by Meridian. The foregoing indemnities shall survive the Closing or termination
of this Agreement.
4
<PAGE>
15. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be an original, and all of which, when taken
together, shall constitute one instrument. This Agreement may be executed by
fax, with originals to follow.
IN WITNESS WHEREOF, Meridian and EastGroup have executed this Agreement as
of the date first set forth above.
MERIDIAN INDUSTRIAL TRUST, INC.,
a Maryland corporation
By:
------------------------------
Its:
------------------------------
EASTGROUP PROPERTIES, L.P.,
a Delaware limited partnership
By: EastGroup Properties General
Partners, Inc.,
a Delaware corporation
Its: Sole General Partner
By:
-------------------------
Name:
-------------------------
Its:
-------------------------
By:
-------------------------
Name:
-------------------------
Its:
-------------------------
5
<PAGE>
EXHIBIT A
EXHIBIT A-23
1720 LEWIS
JACKSONVILLE, FL
[TITLE IS IN THE-NAME OF ONE FEDERAL STREET JOINT VENTURE, A MASSACHUSETTS
GENERAL PARTNERSHIP FOR AN UNDIVIDED 50%; THE PRUDENTIAL INSURANCE COMPANY OF
AMERICA FOR AN UNDIVIDED 50%]
A part of Section 7, Township 2 South, Range 26 East, Duval County, Florida,
being more particularly described as follows:
COMMENCING at the intersection of the Easterly right of way lien of Ellis Road
(a 70 foot right of way) with the Southerly right of way line of 12th Street (a
60 foot right of way); thence North 89 15'10" East along said Southerly right of
way line of 12th Street, a distance of 961.01 feet; thence South 00 35'55" West
along the Easterly line of those certain lands described in Official Records
Volume 5570, Page 1033 of the Current Public Records of said County, a distance
of 1275.00 feet to the Southeast corner thereof for a POINT OF BEGINNING; thence
North 89 15'10" East, a distance of 541.56 feet to a point situate in the
Westerly right of way line of Lewis Industrial Drive (a 60 foot right of way as
now established) said right of way line being a curve concave Westerly and
having a radius of 845.28 feet; thence Southerly around and along said curve and
along said Westerly right of way line, an arc distance of 166.60 feet, said arc
being subtended by a chord bearing and distance of South 17 39'59" West, 166.33
feet to the point of tangency of said curve, thence South 23 18'45" West, and
continuing along said Westerly right of way line, a distance of 280.09 feet to
the point of curvature of a curve to the left, concave Easterly and having a
radius of 984.66 feet; thence Southerly around and along the arc of said curve
and continuing along said Westerly right of way line, an arc distance of 50.16
feet, said arc being subtended by a chord bearing and distance of South 21
51'11" West, 50.16 feet; thence South 89 15'10" West, a distance of 816.36 feet;
thence North 00 35'55" East, a distance of 460.00 feet to the Southwest corner
of said lands described in Official Records Volume 5570, Page 1033; thence North
89 15'10" East, along the South line of said last mentioned lands, a distance of
450.00 feet to the Southeast corner thereof and the POINT OF BEGINNING.
Containing 9.609 acres.
6
<PAGE>
EXHIBIT A-24
2000 LEWIS
JACKSONVILLE, FL
[TITLE IS IN THE NAME OF ONE FEDERAL STREET JOINT VENTURE, A MASSACHUSETTS
GENERAL PARTNERSHIP FOR AN UNDIVIDED 50%; THE PRUDENTIAL INSURANCE COMPANY OF
AMERICA FOR AN UNDIVIDED 50%]
PARCEL 1:
A portion of Section 7, Township 2 South, Range 26 East, Duval County, Florida
and being more particularly described as follows:
COMMENCE at the intersection of the Easterly right of way line of Ellis Road (a
70 foot right of way) with the Southerly right of way line of 12th Street (a 60
foot right of way); thence North 89 15'10" East, along said Southerly right of
way line, a distance of 961.01 feet; thence South 00 35'55" West, a distance of
701.00 feet to the POINT OF BEGINNING; thence North 89 15'10" East, a distance
of 538.02 feet to a point situate in the Westerly right of way line of Lewis
Industrial Drive (a 60 foot right of way); thence South 02 25'19" East, along
last said line, a distance of 15.17 feet to its intersection with the arc of a
curve concave Easterly and having a radius of 45.00 feet; thence Southerly along
and around the arc of said curve, an arc distance of 75.69 feet, said arc being
subtended by a chord bearing and distance of South 02 25'19" East, 67.08 feet;
thence South 02 25'19" East, and continuing along said Westerly right of way
line of Lewis Industrial Drive, a distance of 280.24 feet to the Point of
Curvature of a curve to the right; thence along and around the arc of said curve
concave Westerly and having a radius of 845.28 feet and continuing along said
Westerly right of way line, an arc distance of 69.57 feet, said arc being
subtended by a chord bearing and distance of South 00 03'51" East, 69.55 feet;
thence South 89 15'10" West, a distance of 557.93 feet; thence North 00 35'55"
East, a distance of 432.00 feet to the POINT OF BEGINNING.
Containing 5.4297 acres, more or less.
Being the same lands recorded in Official Records Volume 6267, Page 1833.
PARCEL 2:
A part of Section 7, Township 2 South, Range 26 East, Duval County, Florida,
being more particularly described as follows:
COMMENCING at the intersection of the Easterly right of way line of Ellis Road
(a 70 foot right of way) with the Southerly right of way line of 12th Street (a
60 foot right of way); thence North 89 15'10" East along said Southerly right of
way line of 12th Street, a distance of 961.01 feet, thence South 00 35'55" West
along the Easterly line of those certain lands described in
7
<PAGE>
Official Records Volume 5570, Page 1033 of the Current Public Records of said
County, a distance of 1133.00 feet for a POINT OF BEGINNING; thence North 89
15'10" East along the Southerly line of those certain lands described in
Official Records Volume 6267, Page 1833 of said Current Public Records, a
distance of 557.93 feet to a point situate in the Westerly right of way line of
Lewis Industrial Drive (a 60 foot right of way as now established) said right of
way line being a curve concave Westerly and having a radius of 845.28 feet;
thence Southerly around and along said curve and along said Westerly right of
way line, an arc distance of 143.49 feet, said arc being subtended by a chord
bearing and distance of South 07 09'24" West, 143.32 feet; thence South 89
15'10" West, a distance of 541.56 feet to the Southeast corner of said lands
described in Official Records Volume 5570, Page 1033; thence North 00 35'55"
East, along said Easterly line of said last mentioned lands, a distance of
142.00 feet to the POINT OF BEGINNING.
Containing 1.7983 acres.
8
<PAGE>
EXHIBIT A-25
2115 NORTH ELLIS
JACKSONVILLE, FL
[TITLE IS IN THE NAME OF ONE FEDERAL STREET JOINT VENTURE, A MASSACHUSETTS
GENERAL PARTNERSHIP FOR AN UNDIVIDED 50%; THE PRUDENTIAL INSURANCE COMPANY OF
AMERICA FOR AN UNDIVIDED 50%]
A parcel of land lying in the Northwest 1/4 of Section 7, Township 2 South,
Range 26 East, Jacksonville, Duval County, Florida, being more particularly
described as follows:
COMMENCE at the intersection of the Easterly right of way line of Ellis Road (a
70 foot right of way as now established) with the Easterly prolongation of the
South line of the Northwest 1/4 of the Northwest 1/4 of said Section (said line
being also the Easterly prolongation of the Southerly line of Mays Subdivision,
as recorded in Plat Book 6, Page 54 of the Current Public Records of said
County, and the Northerly line of that 60 foot drainage easement described in
agreement of September 2, 1964, between Seaboard Airline Railroad Company and
the Board of County Commissioners of Duval County, Florida); from the Point of
Reference thus described run thence North 00 35'55" East, along said Easterly
right of way line of Ellis Road, a distance of 858.61 feet to a point for a
POINT OF BEGINNING; thence continue North 00 35'55" East, along said right of
way line, a distance of 464.39 feet to the point of intersection of said
Easterly right of way line with the Southerly right of way line of 12th Street
(formerly Mays Road, a 60 foot right of way as now established); thence North 89
15'10" East, along said Southerly right of way line, a distance of 435.99 feet
to the point of intersection of said Southerly right of way line and the
centerline of said drainage easement; thence South 00 35'55" West, along said
centerline, a distance of 456.38 feet to a point; thence South 88 12'05" West, a
distance of 436.25 feet to the POINT OF BEGINNING.
The lands thus described contain 4.292 acres, more or less, exclusive of the
lands lying within said drainage easement.
DRAINAGE EASEMENT
A portion of the Northwest 1/4 of Section 7, Township 2 South, Range 26 East,
Jacksonville, Duval County, Florida, as more particularly described as follows:
COMMENCE at the point of intersection of the Easterly right of way line of Ellis
Road (a 70 foot right of way as now established) with the Easterly prolongation
of the South line of the Northwest 1/4 of the Northwest 1/4 of said Section
(said line being also the Easterly prolongation of the Southerly line of Mays
Subdivision, as recorded in Plat Book 6, Page 34 of the Public Records of said
County and the Northerly line of that 60 foot drainage easement described in
agreement dated September 2, 1964, between Seaboard Airline Railroad Company and
the Board of County Commissioners of Duval County, Florida); thence North 00
35'55" East, along said Easterly right of way line of Ellis Road, 858.61 feet,
thence North 88 12'05" East, 120.00 feet to the
9
<PAGE>
POINT OF BEGINNING; thence continue North 88 12'05" East, 270.00 feet; thence
South 00 35'55" East, 15.00 feet; thence South 88 12'05" West, 270.00 feet;
thence North 00 35'55" West, 15.00 feet to the POINT OF BEGINNING.
Containing 0.0930 acres, more or less.
(Revised description for O.R.V. 5572, Pg. 1729
15 FOOT WATER LINE EASEMENT
A part of the Northwest 1/4 of Section 7, Township 2 South, Range 26 East, Duval
County, Florida, lying 7.5 feet either side of the following described
centerline: COMMENCING at the intersection of the Southerly right of way line of
West 12th Street (a 60 foot right of way) with the Easterly right of way line of
Ellis Road (a 70 foot right of way); thence South 00 35'55" West, along said
Easterly right of way line of Ellis Road, a distance of 454.50 feet for a POINT
OF BEGINNING of said centerline; thence North 89 24'05" East, a distance of
99.32 feet; thence North 44 24'05" East, a distance of 29.50 feet; thence North
89 24'05" East, a distance of 316.22 feet to a point situate in the centerline
of that certain 60 foot County Drainage Easement (by agreement dated September
2, 1964) which lies South 00 35'55" East, a distance of 434.77 feet, as measured
along said centerline of County Drainage Easement from said Southerly right of
way line of West 12th Street and the terminus of said centerline.
10
<PAGE>
EXHIBIT A-26
2001 NORTH ELLIS
JACKSONVILLE, FL
[TITLE IS IN THE NAME OF ONE FEDERAL STREET JOINT VENTURE, A MASSACHUSETTS
GENERAL PARTNERSHIP FOR AN UNDIVIDED 50%; THE PRUDENTIAL INSURANCE COMPANY OF
AMERICA FOR AN UNDIVIDED 50%]
A parcel of land lying in the Northwest 1/4 of Section 7, Township 2 South,
Range 26 East, Jacksonville, Duval County, Florida, being more particularly
described as follows:
COMMENCE at the intersection of the Easterly right of way line of Ellis Road (a
70 foot right of way as now established) with the Easterly prolongation of the
South line of the Northwest 1/4 of the Northwest 1/4 of said Section (said line
also being the Easterly prolongation of the Southerly line of Mays Subdivision,
as recorded in Plat Book 6, Page 54 of the Current Public Records of said
County, and the Northerly line of that 60 foot drainage easement described in
agreement of September 2, 1964 between Seaboard Airline Railroad Company and the
Board of County Commissioners of Duval County, Florida). From the Point of
Reference thus described, run South 00 35'55" West, along said Easterly right of
way line of Ellis Road, a distance of 30.03 feet to a point on the Centerline of
said drainage easement for a POINT OF BEGINNING; thence North 00 35'55" East,
along said right of way line, a distance of 888.64 feet to a point; thence North
88 12'05" East, a distance of 436.25 feet to a point on the centerline of said
drainage easement; thence South 00 35'55" West, along said centerline, a
distance of 888.64 feet to an angle point in said centerline, thence South 88
12'05" West, along said centerline, a distance of 436.25 feet to the POINT OF
BEGINNING.
The lands thus described contains 8.00 acres, more or less, exclusive of the
lands lying within said drainage easement.
DRAINAGE EASEMENT
A portion of the Northwest 1/4 of Section 7, Township 2 South, Range 26 East,
Jacksonville, Duval County, Florida, as more particularly described as follows:
COMMENCE at the point of intersection of the Easterly right of way line of Ellis
Road (a 70 foot right of way as now established) with the Easterly prolongation
of the South line of the Northwest 1/4 of the Northwest 1/4 of said Section
(said line being also the Easterly prolongation of the Southerly line of Mays
Subdivision, as recorded in Plat Book 6, Page 34 of the Public Records of said
County and the Northerly line of that 60 foot drainage easement described in
agreement dated September 2, 1964, between Seaboard Airline Railroad Company and
the Board of County Commissioners of Duval County, Florida); thence North 00
35'55" East, along said Easterly right of way line of Ellis Road, 858.61 feet;
thence North 88 12'05" East, 120.00 feet to the Point OF BEGINNING; thence
continue North 88 12'05" East, 270.00 feet, thence South 00 35'55"
11
<PAGE>
East, 15.00 feet; thence South 88 12'05" West, 270.00 feet; thence North 00
35'55'' West, 15.00 feet to the POINT OF BEGINNING.
Containing 0.0930 acres, more or less.
12
<PAGE>
EXHIBIT A-27
460 AND 500 NORTH ELLIS
JACKSONVILLE, FL
Phase I: A part of the northwest 1/4 of the northwest 1/4, Section 18, Township
2 South, Range 26 East, Jacksonville, Duval County, Florida, and all being more
particularly described as follows:
Commence at the intersection of the centerline of Ellis Road, an original 60
foot right of way as described in O.R. Volume 425, Page 417, of the current
public records of said county, with the centerline of Broadway Avenue (a 60 foot
right of way as now established), said point being the southeasterly corner of
said northwest 1/4 of the northwest 1/4 of Section 18, Township 2 South, Range
26 East; thence south 88 degrees 25 minutes 10 seconds west along the westerly
prolongation of the centerline of Broadway Avenue and the southerly line of said
northwest 1/4 of the northwest 1/4, a distance of 40.03 feet to the present
westerly right of way line of Ellis Road and to the point of beginning; thence
south 89 degrees 26 minutes 50 seconds west, 1245.83 feet, to a point on the
westerly line of that certain 20 foot perpetual right of way and easement for
drainage, recorded in O.R. Volume 1969, Page 581 and Page 584 of the current
public records of said county; thence north 00 degrees 45 minutes 10 seconds
west, along last said line 377.44 feet; thence north 88 degrees 25 minutes 10
seconds east, 1254.39 feet; to a point on the aforementioned westerly right of
way line of Ellis Road; thence south 00 degrees 27 minutes 20 seconds west,
along last said line 400.00 feet to the point of beginning.
Phase II: A part of the northwest 1/4 of the northwest 1/4, and a part of the
southwest 1/4 of the northwest 1/4 of Section 18, Township 2 South, Range 26
East, Jacksonville, Duval County, Florida, and all being more particularly
described as follows:
Commence at the intersection of the centerline of Ellis Road, an original 60
foot right of way described in O.R. Volume 425, Page 417, of the current public
records of said county, with the centerline of Broadway Avenue (a 60 foot right
of way as now established), said point being the southeasterly corner of said
northwest 1/4 of the northwest 1/4 of Section 18, Township 2 South, Range 26
East; thence south 88 degrees 25 minutes 10 seconds west, along the westerly
prolongation of the centerline of Broadway Avenue and the southerly line of said
northwest 1/4 of the northwest 1/4, a distance of 40.03 feet to the present
westerly right of way line of Ellis Road and to the point of beginning; thence
south 00 degrees 04 minutes 04 seconds east, along said westerly right of way
line of Ellis Road, a distance of 275.63 feet; thence south 89 degrees 26
minutes 50 seconds west, 831.58 feet to a point lying in the easterly line of
that certain 80 foot D.O.T. drainage easement recorded in O.R. Volume 2841, Page
814, and O.R. Volume 2831, Page 1026, of the current public records of said
county; run thence south 00 degrees 31 minutes 37 seconds east, public records
of said county; run thence south 00 degrees 31 minutes 37 seconds east, along
said easterly line of the aforedescribed easement, a distance of 341.83 feet;
run thence south 89 degrees 26 minutes 50 seconds west, a distance of 80.00 feet
to a point lying on the westerly line of the aforedescribed 80 foot drainage
easement, said point also being the
13
<PAGE>
intersection with a curve concave northeasterly, having a radius of 385.28 feet
and a central angle of 64 degrees 48 minutes 00 seconds; run thence along and
around the arc of said curve, an arc length of 435.74 feet, said arc being
subtended by a chord having a bearing of north 49 degrees 16 minutes 28 seconds
west, and a distance of 412.89 feet to a point of intersection with the easterly
line of that certain 20 foot perpetual right of way and easement for drainage
recorded in O.R. Volume 1969, Page 581, and Page 584, of the current public
records of said county; run thence south 89 degrees 14 minutes 51 seconds west,
a distance of 20.00 feet to the westerly line of the aforementioned 20 foot
perpetual right of way and easement for drainage; run thence north 00 degrees 45
minutes 10 seconds west, along said westerly line, a distance of 345.14 feet;
thence north 89 degrees 26 minutes 50 seconds east, 1245.83 feet to the point of
beginning.
Phase I and Phase II described together as follows:
A part of the northwest 1/4 of the northwest 1/4, and a portion of the southwest
1/4 of the northwest 1/4 of Section 18, Township 2 South, Range 26 East,
Jacksonville, Duval County, Florida, and all being more particularly described
as follows:
Commence at the intersection of the centerline of Ellis Road, an original 60
foot right of way described in O.R. Volume 425, Page 417, of the current public
records of said county, with the centerline of Broadway Avenue (a 60 foot right
of way as now established), said point being the southeasterly corner of said
northwest 1/4 of the northwest 1/4 of Section 18, Township 2 South, Range 26
East; thence south 88 degrees 25 minutes 10 seconds west, along the westerly
prolongation of the centerline of Broadway Avenue and the southerly line of said
northwest 1/4 of the northwest 1/4, a distance of 40.03 feet to the present
westerly right of way line of Ellis Road and to the point of beginning; thence
south 00 degrees 04 minutes 04 seconds east, 275.63 feet to a point; thence
south 89 degrees 26 minutes 50 seconds west 831.58 feet to a point lying on the
easterly line of that certain 80 foot D.O.T. drainage easement recorded in O.R.
Volume 2841, Page 814, and O.R. Volume 2831, Page 1026, of the current public
records of said county; run thence south 00 degrees 31 minutes 37 seconds east,
along said easterly line of the aforedescribed easement, a distance of 341.83
feet; run thence south 89 degrees 26 minutes 50 seconds west, a distance of 80
feet to a point lying on the westerly line of the aforedescribed 80 foot
drainage easement, said point also being the intersection with a curve concave
northeasterly, having a radius of 385.28 feet and a central angle of 64 degrees
48 minutes 00 seconds; run thence along and around a curve of said arc, an arc
length of 435.74 feet, said arc being subtended by a chord having a bearing of
north 49 degrees 16 minutes 28 seconds west, and a distance of 412.89 feet to a
point of intersection with the easterly line of that certain 20 foot perpetual
right of way and easement for drainage recorded in O.R. Volume 1969, Page 581,
and Page 584, of the current public records of said county; run thence south 89
degrees 14 minutes 51 seconds west, a distance of 20 feet to the westerly line
of the aforementioned 20 foot perpetual right of way and easement for drainage;
run thence north 00 degrees 45 minutes 10 seconds west along said westerly line,
a distance of 722.58 feet; thence north 88 degrees 25 minutes 10 seconds east,
1254.39 feet to a point on the aforementioned westerly right of way line of
Ellis
14
<PAGE>
Road; thence south 00 degrees 27 minutes 20 seconds west, along said line 400
feet to the point of beginning.
15
<PAGE>
EXHIBIT A-28
PARKWAY CENTER
NEW ORLEANS, LA
LOT 15, PARCEL 1, ELMWOOD INDUSTRIAL PARK
A CERTAIN PIECE OR PORTION OF GROUND, together with all the buildings and
improvements thereon, situated in the Parish of Jefferson, State of Louisiana,
designated as Lot 15 of Parcel 1, Elmwood Industrial Park, on a plan of
subdivision by J. J. Krebs & Sons, Inc., dated August 28, 1973, approved by the
Jefferson Parish Council on September 27, 1973, by Ordinance No. 11367,
registered in COB 801, folio 825, and according to which plan said Parcel 1 is
bounded by Pepsi Street, Elmwood Parkway (formerly Wholesalers Parkway), Edwards
Avenue, Commerce Point and Jefferson Highway and Lot 15 is more particularly
described as follows:
Begin at the intersection of the southerly right of way line of Pepsi Street and
the westerly right of way line of Elmwood Parkway, the point of beginning.
Measure thence from the point of beginning along said westerly line S18(37'56"E
a distance of 275.05'; thence S41(12'39"W a distance of 655.52'; thence
S41(54'49"W a distance of 31.91'; thence N34(07'04"E a distance of 58.57';
thence in a northerly direction along the arc of a curve to the left having a
radius of 440.75' an arc length of 405.78', a chord of N07(44'34"E a chord
distance of 391.60'; thence N18(37'56"W a distance of 236.40'to a point on the
southerly right of way line of Pepsi Street; thence along said southerly line
N71(44'19"E a distance of 374.00' to a point on the westerly right of way line
of Elmwood Parkway, the point of beginning.
All as more fully shown on plan of survey by Krebs, LaSalle, LeMieux
Consultants, Inc. dated February 26, 1997.
16
<PAGE>
EXHIBIT A-29
CYPRESS POINT BUSINESS CENTER
NEW ORLEANS, LA
Lot 7 - ELMWOOD INDUSTRIAL PARK, PARCEL 2
A certain piece or portion of ground, together with all the buildings and
improvements thereon, situated in the Parish of Jefferson, Elmwood Industrial
Park, Parcel 2 designated L0T 7 as identified on a plan of resubdivision by J.
J. Krebs & Sons, Inc. dated January 21, 1977, approved by the Jefferson Parish
Council Ordinance No 12848 on May 5, 1977 and registered in COB 892, folio 796,
and more fully described as follows:
Commence at the intersection of the northerly right of way line of Pepsi Street
and the westerly right of way line of Distributors Row, thence along said
westerly line N18(15'15"W a distance of 275.00 feet to a point, the point of
beginning.
Measure thence from the point of beginning S71(44'45"W a distance of 445.35 feet
to a point;
thence N18(15'41"W a distance of 314.70 feet to a point;
thence N71(44'45"E a distance of 445.40 feet to a point on the westerly right of
way line of Distributors Row;
thence along said line S18(15'15"E a distance of 314.70 feet to the point of
beginning.
Said LOT 7 has an area of 139,754.42 square feet or 3.208 acres, more or less.
All as more fully shown on a plan by Krebs, LaSalle, LeMieux Consultants, Inc.
dated February 28, 1997.
17
<PAGE>
EXHIBIT A-30
RIVERBEND OFFICE/SERVICE CENTER
ST. ROSE, LA
TRACT I
A CERTAIN PIECE OR PORTION OF GROUND, together with all the buildings and
improvements thereon, situated in Section 39, Township 12 South, Range 9 East,
Parish of St. Charles, in the Southeastern District of the State of Louisiana on
the left descending bank of the Mississippi River, being a portion of the upper
portion of Fairview Plantation on the East Bank of the Mississippi River,
identified as Parcel FP-1 on a plan of re-subdivision of Gerald Swanson, dated
November 2, 1982, approved by the Parish of St. Charles Ordinance No. 83-1-9 on
January 18, 1983, filed in COB 292, folio 734, and according to said plan,
Parcel FP-1 is more particularly described as follows:
Begin at the intersection of the southerly right of way line of Airline Highway
and the easterly right of way line of Riverbend Boulevard; thence along the
southerly right of way of Airline Highway N72(51'35"E a distance of 410 feet to
a point;
thence S16(10'00"E a distance of 575.08 feet to a point;
thence S72(51'35"W a distance of 410 feet to a point on the easterly right of
way line of Riverbend Boulevard;
thence along said right of way line N16(10'00"W a distance of 575.08 feet to the
point of beginning.
TRACT II
A CERTAIN PIECE OR PORTION OF GROUND, together with all the buildings and
improvements thereon, situated in the Parish of St. Charles, State of
Louisiana in that area known as Riverbend Business Park and identified as Lot
7-A on a plan of re-subdivision of Gerald Swanson, Land Surveyor, dated March
28, 1989, approved by the Parish of St. Charles Council on April 21, 1989,
filed on April 25, 1989 in COB 404, folio 519, and in accordance with said
plan, Lot 7-A is more particularly described as follows:
Begin at the intersection of the easterly right of way line of Riverbend
Boulevard and the northerly right of way line of Y. & M. V. Railroad, thence
along the easterly right of way line of Riverbend Boulevard along a curve to the
left, with a radius of 193.42 feet, an arc length of 118.17 feet, a chord of
N73(40'08"W, a chord length of 116.35 feet to a reverse curve;
18
<PAGE>
thence along a curve to the right having a radius of 125.40 feet, an arc length
of 162.20 feet, a chord of N54(07'02"W, a chord length of 151.13 feet to a point
on the southerly right of way line of the L. & A. Railroad right of way line;
thence along said right of way line N72(56'16"E a distance of 434.62 feet to a
point on the line common to Lots 7-A and 7-B;
thence S25(02'00"E a distance of 148.69 feet to a point on the northerly right
of way line of Y. & M. V. Railroad;
thence S64(58'00"W a distance of 269.65 feet to a point on the easterly right of
way line of River Bend Boulevard, the point of beginning.
19
<PAGE>
EXHIBIT A-31
RIVERBEND WAREHOUSE #2
ST. ROSE, LA
A CERTAIN PIECE OR PORTION OF GROUND, together with all the buildings and
improvements thereon, situated in the State of Louisiana, St. Charles Parish,
Section 39, T12S, R9E, in that area known as Riverbend Business Park and
identified as LOT 4-A on a plan of re-subdivision prepared by J. J. Krebs &
Sons, Inc., dated September 7, 1990, Job No. 900511, approved by St. Charles
Parish on September 17, 1990, and filed in COB 428, folio 518, and in
accordance with said plan of re-subdivision, LOT 4-A is more particularly
described as follows: Begin at the near point of curvature of the northwest
intersection of Delta Drive and Jefferson Highway; thence along the arc of a
curve to the right having a radius of 35 feet a length of 39.56 feet to a
point on the northerly right of way line of Jefferson Highway;
thence S48(36'00"W a distance of 381.86 feet to a point;
thence N16(10'00"W a distance of 1,012.15 feet to a point;
thence N73(50'00"E a distance of 365.50 feet to a point on the westerly right of
way line of Delta Drive;
thence along said right of way line S16(10'00"E a distance of 817.70 feet to the
point of beginning.
20
<PAGE>
EXHIBIT A-32
RIBERBEND WAREHOUSE #1
ST. ROSE, LA
A CERTAIN PIECE OR PORTION OF GROUND, together with all the buildings and
improvements thereon, situated in the State of Louisiana, St. Charles Parish,
Section 39, T12S, R9E, in that area known as Riverbend Business Park and
identified as LOT 3 on a plan of re-subdivision prepared by J. J. Krebs & Sons,
dated May 16, 1980, Dwg. No. G-73-003-02-A, and approved by St. Charles Parish
Police Jury Ordinance No. 84-5-3, authorizing an Act of Dedication filed in COB
315, folio 394, and in accordance with said plan of re-subdivision, Lot 3 is
more particularly described as follows:
Begin at the near point of curvature of the northeast intersection of Jefferson
Highway and River Bend Boulevard, thence along the easterly right of way line of
River Bend Boulevard, N16(10'00"W a distance of 1,706.00 feet to a point;
thence along the arc of a curve to the right having a radius of 35 feet an arc
length of 49.56 feet, chord bearing of N42(24(00(E a chord distance of 45.52
feet to a point of tangency;
thence N64(58'00"E a distance of 339.95 feet to a point;
thence S16(10'00"E a distance of 1,675.92 feet to a point on the northerly right
of way line of Jefferson Highway;
thence along said northerly right of way line S48(39'00W a distance of 348.87
feet to a point;
thence along the arc of a curve to the right; having a radius of 35 feet an arc
length of 70.39 feet, chord bearing of N73(47(00(W a chord distance of 59.11 to
the point of beginning.
Improvements thereon bear Municipal No. 100 River Bend Boulevard.
A CERTAIN PIECE OR PORTION OF GROUND, together with all the buildings and
improvements thereon, situated in the Parish of Jefferson, in that area known as
Elmwood Industrial Park, Parcel 2 thereof, and identified as Lot 7 on a plan of
re-subdivision of J.J. Krebs & Sons, Inc., dated January 21, 1977, approved by
Jefferson Parish Council Ordinance No. 12848 on May 5, 1977 and registered in
COB 892, folio 796, and in accordance with said plan of re-subdivision, said Lot
7 is more particularly described as follows:
Commence at the southwest intersection of Mounes Street and Distributors Row,
thence along the westerly right of way line of Distributors Row S18(15'15"E a
distance of 314.70 feet to a point;
21
<PAGE>
thence leaving said right of way S71(44'45"W a distance of 445.35 feet to a
point;
thence N(14'41"W a distance of 314.70 feet to a point;
thence N71(44'45"E a distance of 445.40 feet to the point of beginning.
22
<PAGE>
EXHIBIT B
ALLOCATION OF PURCHASE PRICE
Allocated
Property Address Price
- -------- ------- ---------
460 and 500 North Ellis Jacksonville, FL $7,825,672
Road
1720 Lewis Jacksonville, FL $ 2,911,189
2000 Lewis Jacksonville, FL $ 2,136,670
2155 North Ellis Road Jacksonville, FL $ 2,856,797
2001 North Ellis Road Jacksonville, FL $ 4,692,679
Parkway Center New Orleans, LA $ 6,928,256
Cypress Point Business New Orleans, LA $ 2,207,659
Center
Riverbend Office/Service St. Rose, LA $ 2,257,946
Center
Riverbend Warehouse No. 2 St. Rose, LA $ 5,820,356
Riverbend Warehouse No. 1 St. Rose, LA $12,072,621
----------
TOTAL $49,709,845
----------
----------
23
<PAGE>
EXHIBIT C
LIST OF LOAN DOCUMENTS
FLORIDA PROPERTIES
1. Promissory Note ("Florida Note") dated September 23, 1997 in principal
amount of $18,300,000, from EastGroup Properties, L.P. ("EastGroup"), maker, to
Meridian Industrial Trust, Inc. ("Meridian"), payee.
2. Mortgage and Security Agreement dated September 23, 1997, from
EastGroup to Meridian, securing payment of the Florida Note and encumbering
those projects comprising the Subject Property which are located in the State of
Florida.
3. Assignment of Rents and Leases dated September 23, 1997, from
EastGroup to Meridian, securing payment of the Florida Note and encumbering
those projects comprising the Subject Property which are located in the State of
Florida.
4. State of Florida UCC-1 Financing Statements.
LOUISIANA PROPERTIES
1. Promissory Note ("Louisiana Note") dated September 23, 1997 in
principal amount of $26,700,000, from EastGroup, maker, to Meridian, payee.
2. Mortgage, Security Agreement and Assignment of Leases and Rents dated
September 23, 1997, from EastGroup to Meridian, securing payment of the
Louisiana Note and encumbering those projects comprising the Subject Property
which are located in the State of Louisiana.
3. Assignment of Rents and Leases dated September 23, 1997, from
EastGroup to Meridian, securing payment of the Louisiana Note and encumbering
those projects comprising the Subject Property which are located in the State of
Louisiana.
4. State of Louisiana UCC-1 Financing Statements.
24
<PAGE>
EXHIBIT D
PROFORMA POLICIES ISSUED BY
FIRST AMERICAN TITLE INSURANCE COMPANY
TO
EASTGROUP PROPERTIES, L.P.
PROPERTY
FLORIDA
460 and 500 Ellis Road FA-C-984 $ 7,825,672
1720 Lewis Road FA-C-978 $ 2,911,189
2000 Lewis Road FA-C-979 $ 2,136,670
2155 North Ellis FA-C-981 $ 2,856,797
2001 North Ellis FA-C-982 $ 4,692,679
LOUISIANA
Parkway Center N.A. 19791 $ 6,928,256
Cypress Point N.A. 19792 $ 2,207,659
Riverbend Office/Service Center N.A. 19793 $ 2,257,946
Riverbend Warehouse No. 2 N.A. 19794 $ 5,820,356
Riverbend Warehouse No. 1 N.A. 19795 $12,072,621
25
<PAGE>
EXHIBIT 10.14
PROMISSORY NOTE
$18,300,000.00 Jacksonville, Florida
September 23, 1997
FOR VALUE RECEIVED, the undersigned, jointly and severally if more than
one, ("Maker"), hereby promises to pay to the order of MERIDIAN INDUSTRIAL
TRUST, INC. ("Lender"), at the office of the Lender at 455 Market Street, 17th
Floor, San Francisco, CA 94105 or such other place as the holder may designate
in writing, the sum of Eighteen Million Three Hundred Thousand and 00/100
Dollars ($18,300,000.00) or such lesser amount as may be outstanding from time
to time, with interest thereon at the rates provided hereinafter and with
payments of principal and interest as specified below.
Interest on this Note shall be computed on the basis of a 360-day year for
the actual number of days elapsed in an interest period (actual/360
computation). From the date hereof until the maturity of this Note, interest
shall accrue at the rate of nine and one-fourth percent (9.25%) per annum.
During the term of this Note, payments of interest only at the rate set forth
above, shall be made each month beginning on October 31, 1997 and continuing on
the last day of each succeeding month until paid in full. The entire principal
balance of this Note, and all accrued but unpaid interest shall be due and
payable in full on December 31, 1997. In addition, Maker shall pay a late
charge in the amount of five percent (5%) of any payment due hereunder which is
not received by Lender within nine (9) days of its due date.
THIS NOTE MAY NOT BE PREPAID IN WHOLE OR IN PART PRIOR TO MATURITY.
After maturity, whether normal maturity or upon acceleration, the unpaid
principal balance of this Note and, to the extent permitted by law, any accrued
but unpaid interest thereon, shall accrue interest until paid in full at a rate
which is four percent (4%) per annum higher than the interest rate set forth in
the second paragraph of this Note. Nothing contained herein shall entitle the
holder of this Note to demand or collect interest or charges in the nature of
interest in excess of that permitted by law and if any such excess is collected,
it shall be promptly paid to the Maker together with interest thereon at the
highest lawful rate in effect at the time of such overcharge.
This Note is secured by and entitled to the benefit of a Mortgage (the
"Mortgage") of even date encumbering certain property as described therein.
If default be made in the payment of any amounts required to be paid under
this Note (which default is not cured within ten (10) days) or if there exists
any event of default under the Mortgage, then the holder hereof may, at its
option, declare the entire principal balance
<PAGE>
and accrued interest to be immediately due and payable without notice, time
being of the essence.
The Maker and all endorsers and guarantors of this Note, now or hereafter
becoming liable hereon, waive demand, presentment, protest and notice of protest
and dishonor and all other notices or requirements which might otherwise be
necessary to bind them.
If the Maker defaults under this Note, it shall be obligated to pay all
costs, including reasonable attorneys' fees, incurred by the holder in pursuing
its remedies hereunder and under any instrument securing this Note, including
costs and fees on appeal and in insolvency proceedings.
This Note shall be governed by the laws of Florida.
MAKER AND LENDER HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE THE
RIGHT EITHER MAY HAVE TO A TRIAL BY JURY WITH RESPECT TO ANY LITIGATION BASED
HEREON, OR ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS NOTE AND ANY
AGREEMENT CONTEMPLATED TO BE EXECUTED IN CONJUNCTION HEREWITH, OR ANY COURSE OF
CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF
EITHER PARTY. THIS PROVISION IS A MATERIAL INDUCEMENT FOR LENDER TO MAKE THE
LOAN EVIDENCED BY THIS NOTE.
EASTGROUP PROPERTIES, L.P.
By: EastGroup Properties General Partners, Inc.
By: __________________________________
----------------------------------
Its _____________
-------------
By: __________________________________
----------------------------------
Its _____________
-------------
<PAGE>
EXHIBIT 10.15
MORTGAGE AND SECURITY AGREEMENT
THIS MORTGAGE AND SECURITY AGREEMENT ("Mortgage") is made as of the ____
day of September, 1997, by EASTGROUP PROPERTIES, L.P. ("Mortgagor") to and in
favor of MERIDIAN INDUSTRIAL TRUST, INC. ("Mortgagee"):
W I T N E S S E T H :
RECITATION OF FACTS. Mortgagor, as borrower, is obligated to the Mortgagee
pursuant to a promissory note of even date in principal amount of $18,300,000.00
(the "Note"). The Note and all present and future obligations of Mortgagor to
Mortgagee of whatever nature, liquidated or contingent, incurred in connection
with the Note and this Mortgage, as they may be modified or extended, are herein
called the "Obligation."
NOW, THEREFORE, to secure the payment and performance of all covenants and
conditions in the Obligation and in order to charge the properties, interests
and rights described below with such payment and performance, Mortgagor does
hereby mortgage, sell, pledge, grant a security interest in, and assign to
Mortgagee:
THE MORTGAGED PROPERTY
(A) All of the land in the County of Duval, State of Florida, described on
Exhibit A, together with all the improvements now or later erected on that land
and all fixtures now or later attached to that land, together with all
tenements, hereditaments, easements, crops, trees, oil, gas and minerals,
rights, powers, privileges, immunities and appurtenances now or later belonging
to or pertaining in any way to that land and the reversions, remainders and all
right, title, interest, homestead, right of dower, separate estate, property,
possession and claim whatsoever in law or equity of Mortgagor of, in and to such
land unto Mortgagee in fee simple.
(B) All equipment, fixtures and other tangible and intangible personal
property of all types in which Mortgagor has an interest and now or later
affixed to or located on or used in connection with the land described in
paragraph (A) above and all property described on
<PAGE>
Exhibit B hereto.
(C) All rents, issues, profits, leases, oil, gas and mineral deeds and
leases, revenue, accounts, proceeds, royalties, income and other benefits now or
later derived from the property described in paragraph (A) and (B) above which
Mortgagor hereby assigns to Mortgagee; provided, however, that permission is
hereby given to Mortgagor, so long as no default has occurred under this
Mortgage, to collect, receive and use such benefits from the property as they
become due and payable, but not in advance thereof.
(D) Everything referred to in paragraphs (A), (B) and (C) above and all
replacements, proceeds and products of those assets and any additional property
hereafter acquired by Mortgagor and subject to the lien of this Mortgage or any
part of those properties is herein referred to as the "Mortgaged Property."
It is the specific intention of the parties to this Mortgage that this
Mortgage shall continue in full force and effect until satisfied by a written
satisfaction executed and delivered by Mortgagee to Mortgagor. The lien of this
Mortgage shall continue to secure future Obligations, including advances or
other extensions of credit to Mortgagor, notwithstanding that there may be no
present outstanding balance of the Obligation or the Obligation may have been
reduced to zero, whether under a revolving credit arrangement or otherwise, it
being the intent of this Mortgage to secure mandatory and optional future
advances and other extensions of credit.
Mortgagor covenants and agrees with Mortgagee as follows:
1. COMPLIANCE WITH OBLIGATION AND MORTGAGE; WARRANTY OF TITLE. Mortgagor
shall comply with all provisions of the Obligation, this Mortgage and of every
other instrument evidencing or securing the Obligation and will promptly pay to
Mortgagee the principal with interest thereon and all other sums required to be
paid by Mortgagor under the Obligation and pursuant to the provisions of this
Mortgage and of every other instrument evidencing or securing the Obligation.
Mortgagor hereby warrants to Mortgagee, and shall continue to warrant to
Mortgagee so long as this Mortgage is in effect that (i) Mortgagor has good and
marketable title to the Mortgaged Property real estate in fee simple, (ii) the
Mortgage lien and security interests created by this Mortgage are first liens
and security interests on the Mortgaged Property, superior to all other liens or
security interests on the Mortgaged Property, (iii) Mortgagor has the full power
and authority to, and has obtained all necessary consents and approvals to,
execute and deliver this Mortgage and carry out the terms hereof,
<PAGE>
(iv) this Mortgage is valid and enforceable in accordance with its terms,
subject to the rights of creditors generally under bankruptcy and insolvency
laws, and judicial discretion in the enforcement of equitable remedies,
(v) Mortgagor shall protect and defend the Mortgage liens and security interests
created hereby against the claims of all other parties, and (vi) no part of the
Mortgaged Property is homestead property of any person named as Mortgagor.
2. TAXES; LIENS.
(a) Mortgagor shall pay promptly, when due, and shall promptly
deliver to Mortgagee receipts therefor, all taxes, assessments, rates, dues,
charges, fees, impositions, obligations and encumbrances of every kind
whatsoever now or hereafter imposed, levied or assessed upon or against the
Mortgaged Property or any part thereof, or upon or against this Mortgage or the
indebtedness or other sums secured hereby, or upon or against the interest of
Mortgagee in the Mortgaged Property, as well as all income taxes, assessments
and other governmental charges levied or imposed by any taxing authority upon or
against Mortgagor, the Mortgaged Property or any part thereof and any charge
which, if unpaid, would become a lien or charge upon the Mortgaged Property.
(b) Mortgagor shall not permit any mechanics', laborer's,
materialmen's, statutory or other lien to be created or to remain a lien upon
any of the Mortgaged Property, unless the same is removed or bonded off within
thirty (30) days after filing thereof.
(c) Upon the occurrence of an event of default hereunder, Mortgagee
may, at its option, require Mortgagor to deposit with Mortgagee each month
during the term of this Mortgage, an amount equal to one-twelfth (1/12) of the
yearly taxes and assessments as estimated by Mortgagee to be sufficient to
enable Mortgagee to pay at least thirty (30) days before they become due all
taxes, assessments and other similar charges against the Mortgaged Property.
Such deposits shall not be trust funds, but may be commingled with the general
funds of Mortgagee, and no interest shall be payable in respect thereof. Upon
demand by Mortgagee, Mortgagor shall deliver to Mortgagee such additional monies
as are required to pay such taxes, assessments and similar charges. In the
event of a default under any of the terms, covenants and conditions in the
Obligation or this Mortgage, Mortgagee may apply such deposits to the reduction
of the sums secured hereby.
3. INSURANCE.
(a) Mortgagor shall keep any improvements on the Mortgaged Property
and all personalty which is Mortgaged Property insured under standard fire and
extended coverage policies for the full replacement value of the Mortgaged
Property and for such other amounts, against such other risks and upon such
terms and for such periods as may be reasonably required by Mortgagee.
Mortgagor shall pay promptly, when due, any premiums on such
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insurance. All insurance shall be carried with companies approved by Mortgagee
and shall contain New York standard mortgagee clauses and waivers of subrogation
in favor of and in form acceptable to Mortgagee. All such policies shall show
Mortgagee as an additional insured and shall not be cancelable without thirty
(30) days prior written notice to Mortgagee. Mortgagor shall furnish Mortgagee
with copies of all such policies and renewals. In the event of loss, Mortgagor
shall give immediate notice by mail to Mortgagee and Mortgagee may make proof of
loss if not made promptly by Mortgagor. Mortgagor hereby authorizes each
insurance company to make payments for such loss directly to Mortgagee instead
of to Mortgagor or Mortgagor and Mortgagee jointly. Mortgagee is hereby
authorized, at its option, to settle and compromise any claims, awards, damages,
rights of action and proceeds, and any other payment or relief under any
insurance policy. In the event of foreclosure of this Mortgage or other
transfer of title to the Mortgaged Property in extinguishment of the Obligation
secured hereby, all right, title and interest of Mortgagor in and to any
insurance policies then in force shall pass to the purchaser or grantee.
(b) Insurance proceeds or any part thereof may be applied by
Mortgagee at its option, after deducting therefrom all of its expenses including
attorneys' fees, either to the reduction of the amounts due on the Obligation or
repair of the property damaged; provided however, that if Mortgagee requires
Mortgagor to rebuild or restore the Mortgaged Property following a casualty, as
provided elsewhere in this Mortgage, Mortgagee shall make available to
Mortgagor, all insurance proceeds received as a result of such casualty, for
Mortgagor's use in connection with such repairs or restoration. Mortgagee may
place reasonable restrictions and requirements upon the disbursement of all such
funds in order to insure their proper application to defray costs of repair and
reconstruction, including without limitation, provisions for retainage and
provisions requiring Mortgagor to escrow any additional amounts in excess of
available insurance proceeds required for completion of such repairs or
restoration.
(c) Upon the occurrence of an event of default hereunder, Mortgagee
may, at its option, require Mortgagor to deposit with Mortgagee on a monthly
basis an amount equal to one-twelfth (1/12) of the yearly premiums for all
insurance. Such deposits shall not be trust funds, but may be commingled with
the general funds of Mortgagee, and no interest shall be payable in respect
thereof. Upon demand by Mortgagee, Mortgagor shall deliver to Mortgagee such
additional monies necessary to pay such premiums when due. In the event of
default under any of the terms, covenants and conditions in the Obligation or
this Mortgage, Mortgagee may apply to the reduction of the sums secured hereby,
in such manner as Mortgagee shall determine, any amount under this paragraph
remaining to Mortgagor's credit and any return premium received from
cancellation of any insurance policy by Mortgagee upon foreclosure of this
Mortgage.
4. CONDEMNATION. If the Mortgaged Property or any part thereof shall be
damaged
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or taken through condemnation (which term shall include any damage or taking by
any governmental authority or any other authority authorized by the laws of the
State of Florida or the United States of America to so damage or take, and any
transfer by private sale in lieu thereof) Mortgagee shall be entitled to all
awards, damages, claims, rights of action and proceeds of, or on account of any
damage or taking through condemnation and is hereby authorized, at its option,
to commence, appear in and prosecute, in its own or Mortgagor's name, any action
or proceeding relating to any condemnation, and to settle or compromise any
claim in connection therewith. All such awards, damages, claims, rights of
action and proceeds, and any other payments or relief, and the right thereto,
are hereby assigned by Mortgagor to Mortgagee and Mortgagee after deducting
therefrom all its expenses including attorneys' fees may release to Mortgagor
any monies so received by it without affecting the lien of this Mortgage or may
apply the same, in such manner as Mortgagee shall determine, to the reduction of
the sums secured hereby; provided however, that if Mortgagee requires Mortgagor
to repair or restore damages to the remaining portion of the Mortgaged Property
not so taken, it shall make condemnation proceeds available to Mortgagor for
Mortgagor's use in defraying the costs thereof, subject to the same restrictions
as allowed to Mortgagee pursuant to paragraph 3(b) above with respect to
insurance proceeds. Any balance of such monies then remaining shall be paid to
Mortgagor. Mortgagor agrees to execute such further assignments of any awards,
damages, claims, rights of action and proceeds as Mortgagee may require.
5. CARE OF MORTGAGED PROPERTY. Mortgagor shall not cut or remove any
material amount of timber, sever, remove or grant any rights in any oil, gas,
minerals, limerock, phosphate, soil or other materials or remove or demolish any
building or other property forming a part of the Mortgaged Property without the
prior written consent of Mortgagee. Mortgagor shall not permit, commit or
suffer any waste, impairment or deterioration of the Mortgaged Property or any
part thereof, and shall keep the same and improvements thereon in good condition
and repair; including without limitation, any repairs or restoration required as
a result of casualty or condemnation. Mortgagor shall notify Mortgagee in
writing within five (5) days of any damage or impairment of the Mortgaged
Property. Mortgagor shall comply with all laws and regulations applicable to
the Mortgaged Property, including, without limitation, all zoning,
environmental, land use and toxic or hazardous waste disposal laws. Mortgagee
may, at Mortgagee's discretion, have the Mortgaged Property inspected at any
time and Mortgagor shall pay all reasonable costs incurred by Mortgagee in
executing such inspection.
6. MORTGAGEE'S RIGHT TO MAKE CERTAIN PAYMENTS. In the event Mortgagor
fails to complete any improvements to the Mortgaged Property, pay or discharge
the taxes, assessments, levies, liabilities, obligations (including obligations
under any leases) or encumbrances affecting the Mortgaged Property, or fails to
keep the Mortgaged Property insured or to deliver the policies, premiums paid,
or fails to repair the Mortgaged Property as
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herein agreed, or fails to make any payment required under any other mortgage or
security agreement relating to the Mortgaged Property (whether or not the
existence of such mortgage or security agreement is permitted by this Mortgage),
or fails to take any actions reasonably necessary to preserve the value of the
Mortgaged Property, or Mortgagor otherwise defaults in any covenant herein or in
any loan agreement or other document evidencing or securing the Obligation,
Mortgagee may at its option, without waiving or curing any default by Mortgagor,
expend funds to complete such improvements, pay or discharge any taxes,
assessments, levies, or liabilities, pay off or cure any default under
obligations and encumbrances, procure and pay for insurance or make and pay for
repairs as is deemed necessary or appropriate by Mortgagee, otherwise perform
any action required to be performed by Mortgagor and take such action to
preserve the value of the Mortgaged Property. Mortgagee shall have no
obligation on its part to determine the validity or necessity of any payment and
any such payment shall not waive or affect any option, lien, equity or right of
Mortgagee under or by virtue of this Mortgage. The full amount of each and
every such payment shall be immediately due and payable and shall bear interest
from the date thereof until paid at the Default Rate, as defined below, and
together with such interest, shall be secured by the lien of this Mortgage.
Nothing herein contained shall be construed as requiring Mortgagee to advance or
expend monies for any of the purposes mentioned in this paragraph. No such
payments shall be deemed to waive or cure any default hereunder.
7. PAYMENT OF EXPENSES. Mortgagor shall pay all of the costs, advances,
charges and expenses, including reasonable attorneys' fees, disbursements and
cost of abstracts of title, documentary and intangibles taxes (and any penalties
or interest with respect thereto) incurred in connection with the Obligation
(including future advances) or this Mortgage or the enforcement thereof or paid
at any time by Mortgagee due to the failure on the part of Mortgagor promptly
and fully to perform, comply with and abide by each and every stipulation,
agreement, condition and covenant of the Obligation and this Mortgage. Without
limiting the generality of the foregoing, the Mortgagee is specifically
authorized to advance funds necessary to complete the construction of
improvements on the Mortgaged Property. Such costs, charges and expenses shall
be immediately due and payable, whether or not there be notice, demand, attempt
to collect or suit pending. The full amount of each and every such payment made
by Mortgagee shall bear interest from the date thereof until paid at the Default
Rate, as hereinafter defined. All such costs, charges and expenses so incurred
or paid, together with such interest, shall be secured by the lien of this
Mortgage and any other instrument securing the Obligation. No such payments
shall be deemed to waive or cure any default hereunder. The provisions of this
paragraph shall survive the payment of the Obligation and satisfaction of this
Mortgage.
8. AFTER ACQUIRED PROPERTY. The lien of this Mortgage will automatically
attach, without further act, to all after acquired property of whatever kind
located in, on or contiguous to, or attached to, or used or intended to be used
in connection with or in the operation of the
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Mortgaged Property.
9. ADDITIONAL DOCUMENTS. At all times that this Mortgage is in effect,
upon Mortgagee's request, Mortgagor shall at Mortgagor's expense make, execute
and deliver to Mortgagee any and all such further mortgages, financing
statements, instruments of further assurance, certificates and other documents
as Mortgagee may consider reasonably necessary or desirable in order to
effectuate, complete, perfect, continue or preserve the obligations of Mortgagor
under the Obligation and this Mortgage, and the lien of this Mortgage as a
paramount first lien upon all the Mortgaged Property. Upon any failure by
Mortgagor to do so, Mortgagee may make, execute, record, file, re-record or
refile any and all such mortgages, instruments, certificates and documents for
and in the name of Mortgagor. Mortgagor hereby irrevocably appoints Mortgagee
as agent and attorney-in-fact of Mortgagor to do all things necessary to
effectuate or assure compliance with this Mortgage.
10. EVENT OF DEFAULT. Any one of the following shall constitute an event
of default:
(a) Failure by Mortgagor to pay as and when the same are due and
payable, any principal or interest due under the Obligation, or any deposits for
taxes and assessments or insurance premiums due hereunder, or any other sums to
be paid by Mortgagor hereunder or under any loan agreement or other instrument
evidencing or securing the Obligation, which failure is not cured within ten
(10) days after the due date.
(b) Failure by Mortgagor to duly keep, perform and observe any other
covenant, condition or agreement in the Obligation, this Mortgage, or any loan
agreement or other instrument now or hereafter evidencing or securing the
Obligation for a period of thirty (30) days after Mortgagee gives written notice
to Mortgagor specifying the breach.
(c) If Mortgagor or any guarantor or endorser of the Obligation:
(i) files a voluntary petition in bankruptcy, or (ii) files any petition or
answer seeking or acquiescing in any reorganization, arrangement, composition,
liquidation, dissolution or similar relief for itself under any law relating to
bankruptcy, insolvency or other relief for debtors, or (iii) seeks or consents
to or acquiesces in the appointment of any trustee, receiver, master or
liquidator of itself or of any substantial part of the Mortgaged Property or of
the rents, revenues, issues, earnings, profits or income thereof, or (iv) any
such trustee, liquidator, receiver or master is appointed, or a bankruptcy or
other insolvency proceeding is brought against any such person without the prior
written consent of Mortgagee, which appointment or proceeding shall remain
unvacated and unstayed for an aggregate of sixty (60) days whether or not
consecutive.
(d) Any breach of any warranty or material untruth of any
representation of Mortgagor or any guarantor or endorser of the Obligation,
contained in the Obligation, this Mortgage or any loan agreement or other
instrument evidencing, securing or given in
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connection with the Obligation.
(e) Any default under any instrument guaranteeing or endorsing the
Obligation or under any other mortgage or security agreement encumbering all or
any part of the Mortgaged Property whether prior to or junior to this Mortgage
and whether or not the existence of such lien is permitted hereby, if such
default continues in effect for more than thirty (30) days after written notice
thereof to the Mortgagor; provided that no notice and grace period shall be
required to be given if any action to foreclose or sell any Mortgaged Property
is taken by any third party.
(f) If this Mortgage, the Obligation or any instrument evidencing,
securing, endorsing or guaranteeing the Obligation shall be invalid or
unenforceable in whole or material part or any guarantor, endorser or obligor
under an instrument securing the Obligation shall terminate or repudiate its
obligations.
(g) Any default by Mortgagor with respect to any material obligations
now or hereafter owed by such person to Mortgagee, including without limitation,
obligations owed pursuant to a Note and Mortgage of even date made by Mortgagor
to Mortgagee evidencing and securing indebtedness in the principal amount of
$26,700,000.
11. ACCELERATION. If an event of default shall have occurred, Mortgagee
may declare the outstanding principal amount of the Obligation and the interest
accrued thereon, and all other sums secured hereby, to be due and payable
immediately. Upon such declaration all principal and interest and other sums
shall immediately be due and payable without demand or notice. If any part of
the Obligation is payable on demand, nothing herein shall be deemed to limit the
right of the holder of such Obligation to demand payment.
12. REMEDIES AFTER DEFAULT. Upon an event of default, Mortgagee may
proceed by suit or suits at law or in equity or by any other appropriate
proceeding or remedy to take any one or more of the following actions:
(a) enforce payment of the Obligation or the performance of any term hereof or
any other right; (b) foreclose this Mortgage and sell, as an entirety or in
separate lots or parcels, the Mortgaged Property under the judgment or decree of
a court or courts of competent jurisdiction; (c) collect and, at its option,
apply to the Obligation, all rents, issues, profits, accounts, proceeds,
revenue, income and other benefits from the Mortgaged Property; (d) obtain the
appointment of a receiver to enter upon and take possession of the Mortgaged
Property and to collect all rents, issues, profits, revenue, accounts, proceeds,
income and other benefits thereof and apply the same as a court may direct; and
(e) pursue any other remedy available to it including, but not limited to, all
remedies available under the Uniform Commercial Code as in effect from time to
time in Florida ("UCC"). Mortgagee shall take action either by such proceedings
or by the exercise of its power with respect to entry or taking possession, or
both, as Mortgagee may determine, and Mortgagor irrevocably
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appoints Mortgagee as its attorney-in-fact to take any such actions and to
deliver deeds, bills of sale and other instruments of conveyance relating to any
Mortgaged Property as may be permitted by law. The Mortgagee is hereby
irrevocably appointed attorney-in-fact for the Mortgagor with the power to
endorse or transfer on behalf of the Mortgagor any checks or other instruments
received as proceeds, profits, rents or revenues from the Mortgaged Property.
13. NO WAIVER. No delay or omission of Mortgagee or of any holder of the
Obligation to exercise any right, power or remedy accruing upon any event of
default shall exhaust or impair any such right, power or remedy or shall be
construed to waive any event of default or to constitute acquiescence therein.
14. NON-EXCLUSIVE REMEDIES. No right, power or remedy conferred upon or
reserved to Mortgagee by the Obligation, this Mortgage, or any other instrument
now or hereafter evidencing or securing the Obligation is exclusive of any other
right, power or remedy, but each and every such right, power and remedy shall be
cumulative and concurrent and shall be in addition to any other right, power and
remedy given hereunder or under the Obligation or any loan agreement or other
instrument evidencing or securing the Obligation, now or hereafter existing at
law, in equity or by statute. No action taken by Mortgagee shall be deemed an
election of remedies.
15. SUCCESSORS AND ASSIGNS BOUND. Whenever one of the parties hereto is
named or referred to herein, the heirs, successors and assigns of such party
shall be included and all covenants and agreements contained in this Mortgage,
by or on behalf of Mortgagor or Mortgagee, shall bind and inure to the benefit
of their respective heirs, successors and assigns, whether or not so expressed.
All references herein to Mortgagee shall mean the holder of the Note from time
to time.
16. SEPARATE PROVISIONS. In the event that any of the covenants,
agreements, terms or provisions contained in the Obligation, this Mortgage or
any other instrument securing the Obligation shall be invalid, illegal or
unenforceable in any respect, the validity of the remaining covenants,
agreements, terms and provisions contained herein and in the Obligation and any
other instrument securing the Obligation shall be in no way affected, prejudiced
or disturbed thereby.
17. ATTORNEYS' FEES. The term "attorneys' fees" as used in this Mortgage
includes any and all reasonable legal fees paid or incurred by Mortgagee of
whatever nature and whether or not incurred at or before trial, on appeal, in
bankruptcy proceedings or administrative actions.
18. FUTURE ADVANCES. [Intentionally deleted]
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19. OBLIGATION OF MORTGAGOR. Mortgagor shall pay the cost of releasing or
satisfying this Mortgage of record.
20. NO SALE, JUNIOR LIEN OR OTHER TRANSFER. It is understood and agreed
by Mortgagor that as part of the inducement to Mortgagee to make the extension
of credit evidenced by the Obligation, Mortgagee has considered and relied on
the reliability of Mortgagor and Mortgagor's ownership and management of the
Mortgaged Property, and the fact that there are no other liens on the Mortgaged
Property. To induce such reliance, Mortgagor covenants and agrees not to
directly or indirectly sell, convey, transfer, mortgage, or otherwise dispose of
any interest in or any part of the Mortgaged Property without the prior written
consent of Mortgagee to be given or withheld in Mortgagee's sole discretion, and
any such sale, conveyance, transfer or mortgage made without Mortgagee's prior
written consent shall be void. If any person should obtain an interest in all
or any part of the Mortgaged Property pursuant to the execution or enforcement
of any lien, security interest or other right, whether superior, equal or
subordinate to this Mortgage or the lien hereof, such event shall be deemed to
be a transfer by Mortgagor and an event of default hereunder. If Mortgagor is
other than an individual, any direct or indirect sale, assignment, pledge,
transfer, grant of a security interest in or other disposition of more than 25%
of the legal or equitable interests (which percentage shall be calculated, at
Mortgagee's option, based upon value, voting interests, capital or income
interests) in the Mortgagor within any thirty-six (36) month period after the
date of this Mortgage shall constitute a transfer of the Mortgaged Property in
violation of this section. Transfer or other disposition by merger,
consolidation or operation of law (other than transfers upon death) shall be
considered "transfers" within the meaning of this Paragraph 20. The provisions
of this section shall be in addition to and not in lieu of any provisions in any
loan agreement or other instrument relating to the Obligation restricting change
of control of Mortgagor or transfer of the Mortgaged Property.
21. PARTIAL RELEASES. Mortgagee may, at its sole discretion, but shall
not be required to, release portions of the Mortgaged Property on such terms and
conditions as it deems acceptable and any person having an interest in the
Mortgaged Property takes such interest subject to such discretionary releases.
22. DEFAULT RATE. The Default Rate shall be the highest rate of interest
after maturity contained in any note or other evidence of any portion of the
Obligation, but if none is stated then it shall be four percent (4%) per annum
in excess of the rate stated in any note or other evidence of any portion of the
Obligation which would have been applicable had such Obligation not matured or
no default had occurred.
23. AMENDMENT OF DOCUMENTS. Mortgagor agrees that the Obligation and any
other document or instrument evidencing, guaranteeing or securing the Obligation
may be amended,
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restated, renewed, extended, increased, decreased or otherwise changed by the
parties thereto and any such changes, or the release or modification of any
security for or guaranty or endorsement of the Obligation, or any forbearance,
indulgence, delay or waiver in enforcing the Obligation or any instrument
evidencing, securing or guaranteeing the Obligation, or any other action, delay
or omission of Mortgagee or other person in connection with the Obligation, any
such instruments or this Mortgage shall not in any way diminish the obligations
of Mortgagor or the liens granted hereunder. Neither the bankruptcy of the
Mortgagor nor any discharge of, or defense against payment of, the Obligation
(except the defense of payment in full) shall affect the lien of this Mortgage
or the rights of the Mortgagee. The Mortgagor waives presentment, protest,
notice of protest and notice of dishonor and any and all other notices and
requirements otherwise necessary to bind the Mortgagor.
24. USURY. Notwithstanding anything contained in this instrument or in
any other instrument evidencing, describing or securing the Obligation to the
contrary, in no event will the interest due hereunder or under the Obligation
exceed the maximum amount allowed by law from time to time while any part of the
indebtedness or Obligation secured hereby is outstanding, and in the event any
amount in excess of the lawful maximum is charged by the Mortgagee or paid by
the Mortgagor, Mortgagor shall be entitled to an immediate refund of the amount
of such excess together with interest on such excess amount from the date paid
until reimbursed at the maximum lawful rate in effect at the time of the
overcharge.
25. TIME OF ESSENCE. Time shall be of the essence in the performance of
each and every one of the Mortgagor's obligations hereunder.
26. JOINT AND SEVERAL OBLIGATIONS. If more than one person is named as
Mortgagor, the obligations, agreements and representations herein shall be joint
and several. Any matter which is an event of default with respect to Mortgagor
shall be an event of default if it occurs with respect to any person named as
Mortgagor.
27. OTHER ENCUMBRANCES. If the Mortgaged Property is subject to other
encumbrances, Mortgagor shall not permit such encumbrances to secure more than
the amount presently so secured reduced from time to time by any presently
scheduled reductions in the amount secured and will not permit the principal
amount so secured from time to time to be increased through additional advances
or otherwise. The Mortgagor shall give immediate telephonic and written notice
to Mortgagee of any breach or default under any such instruments evidencing such
other encumbrances. The Mortgagor shall not permit the extension, amendment or
other modification of such other encumbrances without the prior written consent
of the Mortgagee. Upon the occurrence of a default under such encumbrance,
Mortgagee may, but shall not be required to cure such default, satisfy such
encumbrance or obtain release of all or any of the Mortgaged Property from such
encumbrance and any funds spent by Mortgagee in so doing shall be considered
future advances secured by this Mortgage. Any such payments
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shall not be deemed to cure any default hereunder.
28. NOTICES. Notices shall be given to the parties at the following
addresses or such other addresses as designated in writing from time to time:
If to Mortgagor: c/o EastGroup Properties
300 One Jackson Place
188 East Capitol St.
Jackson, Mississippi 39201
Attn: David H. Hoster II, President
If to Mortgagee: Meridian Industrial Trust, Inc.
455 Market Street, 17th Floor
San Francisco, CA 94105
Attn: Dennis D. Higgs, Executive Vice President
29. LEASES, EASEMENTS, RESTRICTIONS.
(a) All leases of the Mortgaged Property shall contain an express
clause satisfactory to the Mortgagee subordinating the interest of the lessee to
this Mortgage and agreeing that, at the election of the Mortgagee, such lessee
will attorn to the Mortgagee or other person acquiring Mortgagor's title by
foreclosure or otherwise, notwithstanding such subordination. The Mortgagor
shall perform all its obligations as and when due under any leases of the
Mortgaged Property and, except in the ordinary course of business, agrees not to
modify or agree to the termination of any such lease or any guaranty or security
therefor, accept more than one month's advance rent under any such lease, or
waive any material right under any such lease or any guaranty or security
therefor (whether or not given the option to consent to such waiver in the lease
or guaranty).
(b) Mortgagor shall not grant or impose any covenants, restrictions
or easements affecting the Mortgaged Property without the prior written consent
of Mortgagee. The Mortgagor shall not amend or terminate, or waive any rights
under, any easements, restrictions or covenants affecting the Mortgaged Property
without the express written consent of the Mortgagee. The Mortgagee is hereby
granted the irrevocable right for itself or for Mortgagor to take any action
required of Mortgagor, as lessor, by any lease if the Mortgagor should fail to
do so and is irrevocably appointed as the Mortgagor's attorney-in-fact for such
purposes. Any amounts expended by Mortgagee in fulfilling the Mortgagor's
obligations shall bear interest at the Default Rate specified herein and shall
be secured by this Mortgage.
30. SECURITY AGREEMENT. This Mortgage is intended to be a "security
agreement" as defined in Section 9-105 of the UCC and the Mortgagor and
Mortgagee are "debtor" and
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"secured party" respectively, as such terms are defined in Section 9-105 of the
UCC. In addition to other rights granted herein, the Mortgagee shall have a
security interest in, and the right to set off, any money, deposits, securities
or other assets of any Mortgagor now or hereafter in the possession or control
of Mortgagee or its agents or correspondents for whatever reason or purpose,
including items in the process of collection.
31. PRINCIPAL OFFICE. The chief executive office (or principal residence
address if Mortgagor is an individual) of Mortgagor is at the address set forth
in Section 28. Mortgagor agrees to give at least thirty (30) days' prior
written notice to Mortgagee prior to moving its chief executive office or
residence address.
32. POWERS. All powers of attorney and other rights granted to Mortgagee
herein are coupled with an interest and are irrevocable.
33. CONSENTS. Unless otherwise specified, any approvals or consents of
the Mortgagee required herein may be given or withheld in the discretion of the
Mortgagee.
34. ENVIRONMENTAL CONDITION OF PROPERTY; INDEMNIFICATION.
(a) Mortgagor warrants and represents to Mortgagee after thorough
investigation that to the best of Mortgagor=s knowledge:
(i) The Mortgaged Property described herein is now and at all
times hereafter will continue to be in full compliance with all federal,
state and local environmental laws and regulations (collectively,
"Environmental Laws"), including, but not limited to, the Comprehensive
Environmental Response, Compensation and Liability Act of 1980 ("CERCLA"),
Public Law No 96-510, 94 Stat. 2767, 42 U.S.C. Sections 9601, ET SEQ., the
Superfund Amendments and Reauthorization Act of 1986 ("SARA"), Public Law
No. 99-499, 100 Stat. 1613, the Resource Conservation and Recovery Act of
1976, the Florida Resource Recovery and Management Act, as they have been
amended to date, or any other applicable federal, state or local laws or
ordinances relating to the environment;
(ii) The Mortgagor has received no notice from any governmental
entity of the existence or suspected or alleged existence of any violation
of any Environmental Law; and
(iii) (A) As of the date hereof there are no hazardous or toxic
materials, substances, wastes or other environmentally regulated
substances, including, without limitation, oil, petroleum or chemical
liquids, solids or gaseous products or any materials containing asbestos,
the presence of which is limited, regulated or prohibited
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by any state, federal or local governmental authority or agency having
jurisdiction in the premises, or which are otherwise known to pose a hazard
to health or safety (collectively, "Hazardous Materials"), located on, in
or under the Mortgaged Property or used in connection therewith, or
(B) Mortgagor has fully disclosed to Mortgagee in writing the existence,
extent and nature of any such Hazardous Materials, which Mortgagor is
legally authorized and empowered to maintain on, in or under the Mortgaged
Property or use in connection therewith, and Mortgagor has obtained and
will maintain all licenses, permits and approvals with respect thereto, and
is in full compliance with all of the terms, conditions and requirements of
such licenses, permits and approvals.
(b) Mortgagor covenants that it will promptly notify Mortgagee of any
change in the nature or extent of any Hazardous Materials existing on, in or
under the Mortgaged Property or used in connection therewith, and will transmit
to Mortgagee copies of any citations, orders, notices or other material
governmental or other communication received with respect to any other Hazardous
Materials affecting the Mortgaged Property.
(c) Mortgagor shall not permit the use, storage, manufacture or
production of Hazardous Material on, in or under, or in connection with, the
Mortgaged Property except as specifically permitted in writing by the Mortgagee
and then only in strict conformity with all Environmental Laws.
(d) Mortgagor shall indemnify and hold Mortgagee harmless from and
against any and all damages, penalties, fines, claims, liens, suits,
liabilities, costs (including clean-up costs), judgments and expenses (including
attorneys', consultants' or experts' fees and expenses) of every kind and nature
suffered by or asserted against Mortgagee as a direct or indirect result of any
warranty or representation made by Mortgagor in this section being false or
untrue in any material respect or any requirement under any law, regulation or
ordinance, local, state or federal, which requires the elimination or removal of
any Hazardous Materials by Mortgagee, Mortgagor or any transferee of Mortgagor
or Mortgagee or imposes any fines, liabilities or other penalty on any such
person. The indemnities herein shall be without regard to any fault or
knowledge of Mortgagor.
(e) Upon discovery of any Hazardous Materials at levels which violate
Environmental Laws, Mortgagee shall have the right to require from time to time
such environmental audits or inspections as it may deem necessary to ensure
compliance with this section and payment of the cost of any such audits or
inspections shall be the responsibility of the Mortgagor.
(f) Mortgagor's obligations hereunder shall not be limited to any
extent by the term of the Obligation secured hereby, and, as to any act or
occurrence prior to payment in
-14-
<PAGE>
full and satisfaction of said Obligation which gives rise to liability
hereunder, shall continue, survive and remain in full force and effect
notwithstanding payment in full and satisfaction of said Obligation and this
Mortgage or foreclosure under this Mortgage, or delivery of a deed in lieu of
foreclosure.
35. WAIVER OF JURY TRIAL. THE MORTGAGOR AND MORTGAGEE HEREBY KNOWINGLY,
VOLUNTARILY AND INTENTIONALLY WAIVE THE RIGHT EITHER OF THEM MAY HAVE TO A TRIAL
BY JURY IN RESPECT OF ANY LITIGATION BASED UPON THIS MORTGAGE OR ARISING OUT OF,
UNDER OR IN CONNECTION WITH THE NOTE, THIS MORTGAGE AND ANY AGREEMENT
CONTEMPLATED TO BE EXECUTED IN CONJUNCTION HEREWITH, OR ANY COURSE OF CONDUCT,
COURSE OF DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF ANY
PARTY. THIS PROVISION IS A MATERIAL INDUCEMENT FOR THE MORTGAGEE EXTENDING
CREDIT TO THE MORTGAGOR.
IN WITNESS WHEREOF, the undersigned Mortgagor has executed this instrument
as of the day and year first above written.
Signed, Sealed and Delivered
in the presence of: EASTGROUP PROPERTIES, L.P.
By: EastGroup Properties General Partners, Inc.
By:
- ------------------------------- --------------------------------------------
- ------------------------------- --------------------------------------------
Print Name Print Name Its
------------------------
By:
- ------------------------------- --------------------------------------------
- ------------------------------- --------------------------------------------
Print Name Print Name Its
STATE OF -----------------------
-----------------------
COUNTY OF
---------------------
The foregoing instrument was acknowledged before me this ______ day of
September, 1997, by _______________________________________ and
____________________________, the ____________________ and ___________________,
respectively, of EastGroup Properties General Partners, Inc., general partner of
EastGroup Properties, L.P., a Delaware limited partnership, on behalf of the
partnership. They are personally known to me or produced
_________________________ as identification.
--------------------------------------------
--------------------------------------------
Print Name
-15-
<PAGE>
Notary Public, County and State aforesaid
Commission Number
-----------------------
My commission expires:
-16-
<PAGE>
EXHIBIT A
-17-
<PAGE>
EXHIBIT B
The following, whether now owned or hereafter acquired:
All minerals, soil, flowers, shrubs, crops, trees, timber and other
emblements now or hereafter on the Property described on Exhibit A hereto
(herein referred to as "Property") or under or above the same or any part or
parcel thereof.
All machinery, apparatus, equipment, fittings, fixtures, actually or
constructively attached to the Property and including all trade, domestic and
ornamental fixtures and articles of personal property of every kind and nature
whatsoever now or hereafter located in, upon or under the Property or any part
thereof and used or usable in connection with any present or future operation of
the Property, including, but without limiting the generality of the foregoing,
all heating, air-conditioning, freezing, lighting, laundry, incinerating and
power equipment; engines; pipes; pumps; tanks; motors; conduits; switchboards;
plumbing, lifting, cleaning, fire prevention, fire extinguishing, refrigerating,
ventilating and communication apparatus; boilers, ranges, furnaces, oil burners
or units thereof; appliances; air-cooling and air-conditioning apparatus; vacuum
cleaning systems; elevators; escalators; shades; awnings; screens; storm doors
and windows; stoves; wall beds; built-in refrigerators; attached cabinets;
partitions; ducts and compressors; rugs and carpets; draperies; furniture and
furnishings; together with all building materials and equipment now or hereafter
delivered to the Property and intended to be installed therein, including but
not limited to lumber, plaster, cement, shingles, roofing, plumbing fixtures,
pipe, lath, wallboard, cabinets, nails, sinks, toilets, furnaces, heaters,
brick, tile, water heaters, screens, window frames, glass, doors, flooring,
paint, lighting fixtures and unattached refrigerating, cooking, heating and
ventilation appliances and equipment; together with all additions and accessions
thereto and replacements thereof.
All of the water, sanitary and storm sewer systems which are now or
hereafter located by, over, and upon the Property or any part and parcel
thereof, and which water system includes all water mains, service laterals,
hydrants, valves and appurtenances, and which sewer system includes all sanitary
sewer lines, including mains, laterals, manholes and appurtenances.
All paving for streets, roads, walkways or entrance ways now or hereafter
located on the Property or any part or parcel thereof.
All interest as lessor in and to all leases or rental arrangements of the
Property, or any part thereof, heretofore made and entered into, and in and to
all leases or rental arrangements hereafter made and entered into, together with
any and all guarantees of such leases or rental arrangements and including all
present and future security deposits and advance rentals.
All rights under agreements to sell or otherwise convey the Property or any
collateral listed herein and all cash and noncash proceeds thereof, including
purchase money, promissory notes and installment sales agreements, and any
rights in collateral or guaranties securing any such notes or other proceeds.
Any and all awards or payments, including interest thereon, and the right
to receive the same, as a result of (a) the exercise of the right of eminent
domain, (b) the alteration of the grade of any street, or (c) any other injury
to, taking of, or decrease in the value of the Property, all improvements
thereof and other collateral in this Exhibit.
All unearned premiums accrued, accruing or to accrue under any and all
insurance policies now or hereafter provided pursuant to the terms of security
agreements, and all proceeds or sums payable for the loss of or damage to
(a) the Property, any improvements thereto, or the collateral described herein,
or (b) rents, revenues, income, profits or proceeds from leases, franchises,
concessions or licenses or on any part of the Property.
All contracts, contract rights, accounts receivable and general intangibles
arising from contracts entered into in connection with development, construction
upon, operation or sale of part or all of the Property, including contract or
sales deposits, and all proceeds thereof.
All rights to any fictitious or other names or trade names used in
conjunction with the property.
-18-
<PAGE>
All furniture, furnishings, appliances and equipment and all other tangible
personal property now or hereafter owned or acquired and now or hereafter
located or installed at or in any other improvements on the Property or
elsewhere at or on the Property, together with all accessories and parts now
attached to or used in connection with any such property or which may hereafter
at any time be placed in or added thereto and also any and all replacements and
proceeds of any such Property.
All architectural and engineering plans and specifications, surveys, site
plans, appraisals, feasibility studies and development proposals, building
permits, easements, licenses, permits, agreements and other general intangibles
now or hereafter existing pertaining to the Property.
All rights under payment, performance, and other types of bonds relating to
the ownership, development, construction or operation of the Property of any
improvements thereto and all rights under governmental and nongovernmental
permits, licenses and agreements relating to the ownership, development,
construction or operation of the Property or improvements thereto, including
rights under any land sale or condominium registrations, development orders and
other agreements, permits, orders or rights relating to land use.
All rights under any covenants or restrictions, party wall agreements,
set-back agreements, cross-easement agreements and similar agreements now or
hereafter affecting the Property, including the right to grant waivers and
releases and all other rights of the owner or declarant thereunder.
All substitutions for, amendments to or modifications, extensions or
renewals of any collateral described herein and all proceeds thereof, in
whatever form.
-19-
<PAGE>
EXHIBIT 10.16
PROMISSORY NOTE
$26,700,000.00 Jacksonville, Florida
September ___, 1997
FOR VALUE RECEIVED, the undersigned, jointly and severally and solidarily
if more than one, ("Maker"), hereby promises to pay to the order of MERIDIAN
INDUSTRIAL TRUST, INC. ("Lender"), at the office of the Lender at 455 Market
Street, 17th Floor, San Francisco, CA 94105 or such other place as the holder
may designate in writing, the sum of Twenty Six Million Seven Hundred Thousand
and 00/100 Dollars ($26,700,000.00) or such lesser amount as may be outstanding
from time to time, with interest thereon at the rates provided hereinafter and
with payments of principal and interest as specified below.
Interest on this Note shall be computed on the basis of a 360-day year for
the actual number of days elapsed in an interest period (actual/360
computation). From the date hereof until the maturity of this Note, interest
shall accrue at the rate of nine and one quarter percent (9.25%) per annum.
During the term of this Note, payments of interest only at the rate set forth
above, shall be made each month beginning on October 31, 1997 and continuing on
the last day of each succeeding month until paid in full. The entire principal
balance of this Note, and all accrued but unpaid interest shall be due and
payable in full on December 31, 1997. In addition, Maker shall pay a late
charge in the amount of five percent (5%) of any payment due hereunder which is
not received by Lender within nine (9) days of its due date.
This Note may not be prepaid in whole or in part prior to maturity.
After maturity, whether normal maturity or upon acceleration, the unpaid
principal balance of this Note and, to the extent permitted by law, any accrued
but unpaid interest thereon, shall accrue interest until paid in full at a rate
which is four percent (4%) per annum higher than the interest rate set forth in
the second paragraph of this Note. Nothing contained herein shall entitle the
holder of this Note to demand or collect interest or charges in the nature of
interest in excess of that permitted by law and if any such excess is collected,
it shall be promptly paid to the Maker together with interest thereon at the
highest lawful rate in effect at the time of such overcharge.
This Note is secured by and entitled to the benefit of a Mortgage, Security
Agreement and Assignment of Leases and Rents (the "Mortgage") of even date
encumbering certain property as described therein, an Assignment of Leases and
Rents, as well all other collateral security extended in connection herewith or
to secure payment of this Note, in whole or in part.
If default be made in the payment of any amounts required to be paid under
this Note (which default is not cured within ten (10) days) or if there exists
any event of default under the Mortgage, then the holder hereof may, at its
option, declare the entire principal balance and accrued interest to be
immediately due and payable without notice, time being of the essence.
Maker and each guarantor of this Note hereby waive demand, presentment for
payment, protest, notice of protest and notice of nonpayment, and all pleas of
division and discussion, and severally agree
<PAGE>
that their obligations and liabilities to Lender hereunder shall be on a
"solidary" or "joint and several" basis. Maker and each guarantor further
severally agree that discharge or release of any party who is or may be liable
to Lender for the indebtedness represented hereby, or the release of any
collateral directly or indirectly securing repayment hereof, shall not have the
effect of releasing any other party or parties, who shall remain liable to
Lender, or of releasing any other collateral that is not expressly released by
Lender. Maker and each guarantor additionally agree that Lender's acceptance of
payment other than in accordance with the terms of this Note, or Lender's
subsequent agreement to extend or modify such repayment terms, or Lender's
failure or delay in exercising any rights or remedies granted to Lender, shall
likewise not have the effect of releasing Maker or any other party or parties
from their respective obligations to Lender, or of releasing any collateral that
directly or indirectly secures repayment hereof. In addition, any failure or
delay on the part of Lender to exercise any of the rights and remedies granted
to Lender shall not have the effect of waiving any of Lender' rights and
remedies. A waiver or forbearance on the part of Lender as to one default event
shall not be construed as a waiver or forbearance as to any other default.
<PAGE>
If the Maker defaults under this Note, it shall be obligated to pay all
costs, including reasonable attorneys' fees, incurred by the holder in pursuing
its remedies hereunder and under any instrument securing this Note, including
costs and fees on appeal and in insolvency proceedings.
This Note shall be governed by the laws of the State of Louisiana.
MAKER AND LENDER HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE THE
RIGHT EITHER MAY HAVE TO A TRIAL BY JURY WITH RESPECT TO ANY LITIGATION BASED
HEREON, OR ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS NOTE AND ANY
AGREEMENT CONTEMPLATED TO BE EXECUTED IN CONJUNCTION HEREWITH, OR ANY COURSE OF
CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF
EITHER PARTY. THIS PROVISION IS A MATERIAL INDUCEMENT FOR LENDER TO MAKE THE
LOAN EVIDENCED BY THIS NOTE.
EASTGROUP PROPERTIES, L.P.
By: EastGroup Properties General Partners, Inc.
By:
-----------------------------------
Title:
By:
-----------------------------------
Title:
<PAGE>
EXHIBIT 10.17
MORTGAGE, SECURITY AGREEMENT, UNITED STATES OF AMERICA
AND ASSIGNMENT OF LEASES AND RENTS
STATE OF __________________
BY: COUNTY OF _________________
EASTGROUP PROPERTIES, L.P.
IN FAVOR OF:
MERIDIAN INDUSTRIAL TRUST, INC. AND
FUTURE HOLDERS OF THE OBLIGATION
BE IT KNOWN, that on this _____ day of September, 1997, effective as of the
____ day of September, 1997 (the "Effective Date");
BEFORE ME, ___________________________________, Notary Public in and for
the State of _______ _____________________, and in the presence of the
undersigned competent witnesses;
PERSONALLY CAME AND APPEARED:
EASTGROUP PROPERTIES, L.P., a Delaware limited partnership (TIN:
72-1368281), whose mailing address is 300 One Jackson Place, 188 East
Capitol Street, Jackson, Mississippi 39201, and whose registered office in
the State of Louisiana is located at 8550 United Plaza Blvd., Baton Rouge,
Louisiana 70809, appearing herein through its general partner, EastGroup
Properties General Partners, Inc., itself appearing through
__________________________________, its ________________ and duly
authorized representative pursuant to a resolution of its board of
directors ("Mortgagor");
WHO DECLARED THAT:
RECITATION OF FACTS. Mortgagor, as borrower, is obligated to Meridian
Industrial Trust, Inc. pursuant to a promissory note of even date in principal
amount of $26,700,000.00 (such note, together with any renewals thereof,
amendments and supplements thereto and renewals, refinancings and consolidations
thereof, the "Note"). The Note and all present and future obligations of
Mortgagor to Meridian Industrial Trust and future holder(s) of the Note
("Mortgagee") of whatever nature, whether related or unrelated, or whether
committed or purely discretionary, and whether absolute or contingent,
liquidated or unliquidated, voluntary or involuntary, determined or
undetermined, due or to become due, and whether now existing or hereafter
arising, or otherwise secured or unsecured, whether Mortgagor is obligated alone
or with others on a "solidary" or "joint and several" basis, as a principal
obligor or as a surety, guarantor, or endorser, of every nature and kind
whatsoever, up to a maximum secured amount of U.S. $50,000,000.00 (such
obligations and indebtedness, herein, "the indebtedness secured hereby", "the
indebtedness secured by this Mortgage", the "Obligation" or "Obligations").
NOW, THEREFORE, to secure payment of the Obligations, up to the maximum
secured limit of U.S. $50,000,000.00, MORTGAGOR HEREBY MORTGAGES, AFFECTS,
AND HYPOTHECATES, IN FAVOR OF MORTGAGEE AND ITS SUCCESSORS AND ASSIGNS, all
of Mortgagor's estate, right, title and interest, whether now owned or
hereafter acquired, whether as lessor, lessee, or otherwise and whether
vested or contingent, in and to all of the following described land
(immovable property) and interests in land (immovable property), estates,
easements, servitudes, tenements, rights, buildings, other constructions,
improvements, property, fixtures, component parts, machinery and equipment to
the full extent that such property is susceptible of mortgage under the
Louisiana Civil Code, Louisiana Revised Statutes, and other provisions of
Louisiana law, grants a continuing security interest in favor of Mortgagee
and its successors and assigns, as secured party, in all property and rights
described below as part of the Mortgaged Property (as defined below), whether
now owned or hereafter acquired, that are susceptible of a security interest
under Chapter 9 of the Louisiana Commercial Laws, La. R.S. Section 10:9-101
ET SEQ. or any other provision of Louisiana law, and does further affect,
hypothecate, collaterally assign, and pledge unto and in favor of Mortgagee
and its successors and assigns, as collateral assignee, all the present and
future rents, as well as all
<PAGE>
other property and rights described below as part of the Mortgaged Property
(as defined below), whether now owned or hereafter acquired, that are
susceptible of collateral assignment under La. R.S. Section 9:4401, Section
9:5386, or any other provision of Louisiana law, the following:
THE MORTGAGED PROPERTY
A) All of the land described on Exhibit A, together with all the
improvements now or later erected on that land and all fixtures now or later
attached to that land, together with all buildings, improvements, other
constructions, integral or component parts of such land or buildings; all
servitudes, crops, trees, oil, gas and minerals, rights, powers, privileges,
immunities and appurtenances now or later belonging to or pertaining in any way
to that land and the reversions, remainders and all right, title, interest,
homestead, separate estate, property, possession and claim whatsoever of
Mortgagor of, in and to such land.
B) All equipment, fixtures and other tangible and intangible (corporeal
or incorporeal) personal (moveable) property of all types in which Mortgagor has
an interest and now or later affixed to or located on or used in connection with
the land described in paragraph (B) above and all property described on Exhibit
B hereto.
C) All Rights (as hereinafter defined) provided, however, that permission
is hereby given to Mortgagor, so long as no default has occurred under this
Mortgage, to collect, receive and use such benefits from the property as they
become due and payable, but not in advance thereof.
D) Everything referred to in paragraphs (A), (B) and (C) above and all
replacements, proceeds and products of those assets and any additional property
hereafter acquired by Mortgagor and subject to the lien of this Mortgage or any
part of those properties is herein referred to as the "Mortgaged Property" or
"Property".
As used herein, "Rights" shall mean all of the following:
Sale Proceeds. Any and all of Mortgagor's present and future rights, title
and interests in and to the proceeds of the sale, transfer or conveyance of all
or any of the Mortgaged Property, including the rights of Mortgagor to receive
such sale proceeds directly from the purchaser or purchasers, and further to
enforce any rights that Mortgagor may have to collect such sale proceeds,
including without limitation, Mortgagor's right to commence appropriate
collection actions against the purchaser or purchasers thereof.
Insurance Proceeds. any and all of Mortgagor's present and future rights,
title and interest in and to the unearned insurance premiums and proceeds of
insurance affecting all or any part of the Mortgaged Property, including the
right to receive such unearned insurance premiums and insurance proceeds
directly from the insurer and, where applicable, to enforce any rights that
Mortgagor may have to collect such amounts.
Escrow Payments. Any and all tax escrow payments paid to Mortgagee as
provided under this Mortgage.
Condemnation Proceeds. Any and all of Mortgagor's present and future
rights, title and interest in and to the proceeds of any award or claim for
direct or consequential damages relating to any condemnation, expropriation,
conveyance, or other taking of all or any part of the Mortgaged Property by any
governmental authority, including, without limitation, any awards resulting from
a change or grade of streets and award for severance damages, and further
including the right to receive such condemnation proceeds directly from such a
governmental authority and, where applicable, to enforce any rights that
Mortgagor may have to collect such condemnation proceeds as provided herein.
Leases, Rents and Profits. Any and all present and future leases or
subleases affecting the Mortgaged Property, and all rents, income, and profits
therefrom, including without limitation, any and all rents, income, profits,
bonuses, revenues, royalties, cash or security deposits, advance rentals and
other payments, and further including Mortgagor's rights to enforce all present
and future leases or subleases and to receive and enforce any rights that
Mortgagor might have to collect rental and all other payments.
Income and Royalties. Any and all of Mortgagor's present and future
rights, title and interest in and to all issues, profits, bonuses, cash
collateral, royalties, income and other benefits derived or to
<PAGE>
be derived from the mortgaged Property, or any part or parts thereof, of every
nature and kind whatsoever, including without limitation, any and all issues,
profits, bonuses, cash collateral, royalties, income and other benefits, derived
or to be derived from any and all present and future oil, gas, and mineral
leases or agreements with regard to the Mortgaged Property, or any part or parts
thereof.
Damages. Any and all rights, title and interest and other claims or
demands that Mortgagor now has or may hereafter acquire against anyone with
respect to any damage to all or any part of the Mortgaged Property, including
without limitation, damages arising or resulting from any defect in or with
respect to the design or construction of all or any portion of the Mortgaged
Property, or arising from any default under any construction, architectural or
engineering contract or agreement relating to the Mortgaged Property.
Options. Any and all present and future options to sell or to lease the
Mortgaged Property, or any interests therein.
General Intangibles. Any and all of Mortgagor's present and future
contract rights, instruments, documents and general intangible necessary for use
in connection with the ownership and/or operation of all or any part of the
Mortgaged Property, whether now existing or hereafter created, or otherwise
acquired by Mortgagor, and all liens, security interests, guaranties, remedies,
privileges and other rights pertaining to such general intangibles, and all
rights and remedies of any kind forming the subject matter of such intangibles.
Without limiting the generality of the foregoing, the term "general intangibles"
shall include: (a) all present and future management, maintenance, service, and
other related agreements concerning the operation or maintenance of the
mortgaged Property or any portion thereof; (b) all present and future permits,
licenses, authorizations and other rights relating to the ownership and/or
operation of the Mortgaged Property, or any part or parts thereof; (c) with
respect to Mortgagor's business activities necessary to the operation of the
Mortgaged Property, any and all of Mortgagor's present and future rights, title
and interest in and to all trade names, patents, patent applications,
trademarks, trademark applications, service marks, service mark applications,
and all registrations therefor, together with all royalties, license fees and
other income and proceeds derived therefrom, and all of the goodwill of the
business symbolized by the same, now or thereafter filed, owned or acquired by
Mortgagor; (d) all present and future leases of movable (personal) property,
furnishings, fixtures, and equipment leased for use in connection with the
operation of any of the Mortgaged Property; (e) all written guaranties and
express or implied warranties regarding the Mortgaged Property, and any part or
parts thereof; and (f) all present and future repurchase, indemnity and other
types of agreements with manufacturers and/or distributors and/or sellers
regarding the Mortgaged Property or any part or parts thereof.
This Mortgage has been executed by Mortgagor pursuant to Louisiana Civil
Code articles 3278 et seq., La. R.S. Section 9:4401, La. R.S. Section
9:5386-5388, La. R.S. Section 10:1-101 et seq. (the "Uniform Commercial Code"
or "UCC") and other applicable laws, for the purpose of securing the
Obligations that may now be existing and/or that may arise in the future as
provided herein, with the preferences and priorities provided under
applicable Louisiana law. In accordance with the requirements of applicable
law, including Louisiana Civil Code art. 3288 and L.A. R.S. Section 9:4401,
Mortgagor acknowledges, notwithstanding any other provision of this Mortgage
or any other document to the contrary, the maximum amount of Obligations
secured hereby shall be U.S. $50,000,000.00. Mortgagor authorizes Mortgagee
to file multiple originals, or photocopies, carbon copies, or facsimile
copies of this Mortgage or of such financing statements with the appropriate
filing officer in the State of Louisiana pursuant to the provisions of the
Uniform Commercial Code. Mortgagor's employer identification number is
accurately set out on the first page of this Mortgage. Mortgagor will not
change its employer identification number or its name, identity or corporate
structure so that any financing statement filed in connection herewith may
become seriously misleading unless and until it notifies Mortgagee in writing
and executes all new appropriate financing statements or other such documents
as Mortgagee may require, with Mortgagor being required to pay the cost of
such documentation and the filing thereof as provided above.
It is the specific intention of the parties to this Mortgage that this
Mortgage shall continue in full force and effect until satisfied by a written
satisfaction executed and delivered by Mortgagee to Mortgagor. The lien of this
Mortgage shall continue to secure future Obligations, including advances or
other extensions of credit to Mortgagor, notwithstanding that there may be no
present outstanding balance of the Obligation or the Obligation may have been
reduced to zero, whether under a revolving credit arrangement or otherwise, it
being the intent of this Mortgage to secure mandatory and optional
-3-
<PAGE>
future advances and other extensions of credit.
Mortgagor covenants and agrees with Mortgagee as follows:
1. COMPLIANCE WITH OBLIGATION AND MORTGAGE; WARRANTY OF TITLE. Mortgagor
shall comply with all provisions of the Obligation, this Mortgage and of every
other instrument evidencing or securing the Obligation and will promptly pay to
Mortgagee the principal with interest thereon and all other sums required to be
paid by Mortgagor under the Obligation and pursuant to the provisions of this
Mortgage and of every other instrument evidencing or securing the Obligation.
Mortgagor hereby warrants to Mortgagee, and shall continue to warrant to
Mortgagee so long as this Mortgage is in effect that (i) Mortgagor has good and
marketable title to the Mortgaged Property real estate in fee simple (full
ownership), (ii) the Mortgage lien and security interests created by this
Mortgage are first liens and security interests on the Mortgaged Property,
superior to all other liens or security interests on the Mortgaged Property,
(iii) Mortgagor has the full power and authority to, and has obtained all
necessary consents and approvals to, execute and deliver this Mortgage and carry
out the terms hereof, (iv) this Mortgage is valid and enforceable in accordance
with its terms, subject to the rights of creditors generally under bankruptcy
and insolvency laws, and judicial discretion in the enforcement of equitable
remedies, (v) Mortgagor shall protect and defend the Mortgage liens and security
interests created hereby against the claims of all other parties, and (vi) no
part of the Mortgaged Property is homestead property of any person named as
Mortgagor.
2. TAXES; LIENS.
a) Mortgagor shall pay promptly, when due, and shall promptly
deliver to Mortgagee receipts therefor, all taxes, assessments, rates, dues,
charges, fees, impositions, obligations and encumbrances of every kind
whatsoever now or hereafter imposed, levied or assessed upon or against the
Mortgaged Property or any part thereof, or upon or against this Mortgage or the
indebtedness or other sums secured hereby, or upon or against the interest of
Mortgagee in the Mortgaged Property, as well as all income taxes, assessments
and other governmental charges levied or imposed by any taxing authority upon or
against Mortgagor, the Mortgaged Property or any part thereof and any charge
which, if unpaid, would become a lien or charge upon the Mortgaged Property.
b) Mortgagor shall not permit any mechanics', laborer's,
materialmen's, statutory or other lien to be created or to remain a lien upon
any of the Mortgaged Property, unless the same is removed or bonded off within
thirty (30) days after filing thereof.
c) Upon the occurrence of an event of default hereunder, Mortgagee
may, at its option, require Mortgagor to deposit with Mortgagee each month
during the term of this Mortgage, an amount equal to one-twelfth (1/12) of the
yearly taxes and assessments as estimated by Mortgagee to be sufficient to
enable Mortgagee to pay at least thirty (30) days before they become due all
taxes, assessments and other similar charges against the Mortgaged Property.
Such deposits shall not be trust funds, but may be commingled with the general
funds of Mortgagee, and no interest shall be payable in respect thereof. Upon
demand by Mortgagee, Mortgagor shall deliver to Mortgagee such additional monies
as are required to pay such taxes, assessments and similar charges. In the
event of a default under any of the terms, covenants and conditions in the
Obligation or this Mortgage, Mortgagee may apply such deposits to the reduction
of the sums secured hereby.
3. INSURANCE.
a) Mortgagor shall keep any improvements on the Mortgaged Property
and all personalty which is Mortgaged Property insured under standard fire and
extended coverage policies for the full replacement value of the Mortgaged
Property and for such other amounts, against such other risks and upon such
terms and for such periods as may be reasonably required by Mortgagee.
Mortgagor shall pay promptly, when due, any premiums on such insurance. All
insurance shall be carried with companies approved by Mortgagee and shall
contain New York standard mortgagee clauses and waivers of subrogation in favor
of and in form acceptable to Mortgagee. All such policies shall show Mortgagee
as an additional insured and shall not be cancelable without thirty (30) days
prior written notice to Mortgagee. Mortgagor shall furnish Mortgagee with
copies of all such policies and renewals. In the event of loss, Mortgagor shall
give immediate notice by mail to Mortgagee and Mortgagee may make proof of loss
if not made promptly by Mortgagor. Mortgagor hereby authorizes each insurance
company to make payments for such loss directly to Mortgagee instead of to
Mortgagor
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or Mortgagor and Mortgagee jointly. Mortgagee is hereby authorized, at its
option, to settle and compromise any claims, awards, damages, rights of action
and proceeds, and any other payment or relief under any insurance policy. In
the event of foreclosure of this Mortgage or other transfer of title to the
Mortgaged Property in extinguishment of the Obligation secured hereby, all
right, title and interest of Mortgagor in and to any insurance policies then in
force shall pass to the purchaser or grantee.
b) Insurance proceeds or any part thereof may be applied by
Mortgagee at its option, after deducting therefrom all of its expenses including
attorneys' fees, either to the reduction of the amounts due on the Obligation or
repair of the property damaged; provided however, that if Mortgagee requires
Mortgagor to rebuild or restore the Mortgaged Property following a casualty, as
provided elsewhere in this Mortgage, Mortgagee shall make available to
Mortgagor, all insurance proceeds received as a result of such casualty, for
Mortgagor's use in connection with such repairs or restoration. Mortgagee may
place reasonable restrictions and requirements upon the disbursement of all such
funds in order to insure their proper application to defray costs of repair and
reconstruction, including without limitation, provisions for retainage and
provisions requiring Mortgagor to escrow any additional amounts in excess of
available insurance proceeds required for completion of such repairs or
restoration.
c) Upon the occurrence of an event of default hereunder, Mortgagee
may, at its option, require Mortgagor to deposit with Mortgagee on a monthly
basis an amount equal to one-twelfth (1/12) of the yearly premiums for all
insurance. Such deposits shall not be trust funds, but may be commingled with
the general funds of Mortgagee, and no interest shall be payable in respect
thereof. Upon demand by Mortgagee, Mortgagor shall deliver to Mortgagee such
additional monies necessary to pay such premiums when due. In the event of
default under any of the terms, covenants and conditions in the Obligation or
this Mortgage, Mortgagee may apply to the reduction of the sums secured hereby,
in such manner as Mortgagee shall determine, any amount under this paragraph
remaining to Mortgagor's credit and any return premium received from
cancellation of any insurance policy by Mortgagee upon foreclosure of this
Mortgage.
4. CONDEMNATION. If the Mortgaged Property or any part thereof shall be
damaged or taken through condemnation (which term shall include any damage or
taking by any governmental authority or any other authority authorized by the
laws of the State of Louisiana or the United States of America to so damage or
take, and any transfer by private sale in lieu thereof) Mortgagee shall be
entitled to all awards, damages, claims, rights of action and proceeds of, or on
account of any damage or taking through condemnation and is hereby authorized,
at its option, to commence, appear in and prosecute, in its own or Mortgagor's
name, any action or proceeding relating to any condemnation, and to settle or
compromise any claim in connection therewith. All such awards, damages, claims,
rights of action and proceeds, and any other payments or relief, and the right
thereto, are hereby assigned by Mortgagor to Mortgagee and Mortgagee after
deducting therefrom all its expenses including attorneys' fees may release to
Mortgagor any monies so received by it without affecting the lien of this
Mortgage or may apply the same, in such manner as Mortgagee shall determine, to
the reduction of the sums secured hereby; provided however, that if Mortgagee
requires Mortgagor to repair or restore damages to the remaining portion of the
Mortgaged Property not so taken, it shall make condemnation proceeds available
to Mortgagor for Mortgagor's use in defraying the costs thereof, subject to the
same restrictions as allowed to Mortgagee pursuant to paragraph 3(b) above with
respect to insurance proceeds. Any balance of such monies then remaining shall
be paid to Mortgagor. Mortgagor agrees to execute such further assignments of
any awards, damages, claims, rights of action and proceeds as Mortgagee may
require.
5. CARE OF MORTGAGED PROPERTY. Mortgagor shall not cut or remove any
material amount of timber, sever, remove or grant any rights in any oil, gas,
minerals, limerock, phosphate, soil or other materials or remove or demolish any
building or other property forming a part of the Mortgaged Property without the
prior written consent of Mortgagee. Mortgagor shall not permit, commit or
suffer any waste, impairment or deterioration of the Mortgaged Property or any
part thereof, and shall keep the same and improvements thereon in good condition
and repair; including without limitation, any repairs or restoration required as
a result of casualty or condemnation. Mortgagor shall notify Mortgagee in
writing within five (5) days of any damage or impairment of the Mortgaged
Property. Mortgagor shall comply with all laws and regulations applicable to
the Mortgaged Property, including, without limitation, all zoning,
environmental, land use and toxic or hazardous waste disposal laws. Mortgagee
may, at Mortgagee's discretion, have the Mortgaged Property inspected at any
time and
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Mortgagor shall pay all reasonable costs incurred by Mortgagee in executing such
inspection.
6. MORTGAGEE'S RIGHT TO MAKE CERTAIN PAYMENTS. In the event Mortgagor
fails to complete any improvements to the Mortgaged Property, pay or discharge
the taxes, assessments, levies, liabilities, obligations (including obligations
under any leases) or encumbrances affecting the Mortgaged Property, or fails to
keep the Mortgaged Property insured or to deliver the policies, premiums paid,
or fails to repair the Mortgaged Property as herein agreed, or fails to make any
payment required under any other mortgage or security agreement relating to the
Mortgaged Property (whether or not the existence of such mortgage or security
agreement is permitted by this Mortgage), or fails to take any actions
reasonably necessary to preserve the value of the Mortgaged Property, or
Mortgagor otherwise defaults in any covenant herein or in any loan agreement or
other document evidencing or securing the Obligation, Mortgagee may at its
option, without waiving or curing any default by Mortgagor, expend funds to
complete such improvements, pay or discharge any taxes, assessments, levies, or
liabilities, pay off or cure any default under obligations and encumbrances,
procure and pay for insurance or make and pay for repairs as is deemed necessary
or appropriate by Mortgagee, otherwise perform any action required to be
performed by Mortgagor and take such action to preserve the value of the
Mortgaged Property. Mortgagee shall have no obligation on its part to determine
the validity or necessity of any payment and any such payment shall not waive or
affect any option, lien, equity or right of Mortgagee under or by virtue of this
Mortgage. The full amount of each and every such payment shall be immediately
due and payable and shall bear interest from the date thereof until paid at the
Default Rate, as defined below, and together with such interest, shall be
secured by the lien of this Mortgage. Nothing herein contained shall be
construed as requiring Mortgagee to advance or expend monies for any of the
purposes mentioned in this paragraph. No such payments shall be deemed to waive
or cure any default hereunder.
7. PAYMENT OF EXPENSES. Mortgagor shall pay all of the costs, advances,
charges and expenses, including reasonable attorneys' fees, disbursements and
cost of abstracts of title, documentary and intangibles taxes (and any penalties
or interest with respect thereto) incurred in connection with the Obligation
(including future advances) or this Mortgage or the enforcement thereof or paid
at any time by Mortgagee due to the failure on the part of Mortgagor promptly
and fully to perform, comply with and abide by each and every stipulation,
agreement, condition and covenant of the Obligation and this Mortgage. Without
limiting the generality of the foregoing, the Mortgagee is specifically
authorized to advance funds necessary to complete the construction of
improvements on the Mortgaged Property. Such costs, charges and expenses shall
be immediately due and payable, whether or not there be notice, demand, attempt
to collect or suit pending. The full amount of each and every such payment made
by Mortgagee shall bear interest from the date thereof until paid at the Default
Rate, as hereinafter defined. All such costs, charges and expenses so incurred
or paid, together with such interest, shall be secured by the lien of this
Mortgage and any other instrument securing the Obligation. No such payments
shall be deemed to waive or cure any default hereunder. The provisions of this
paragraph shall survive the payment of the Obligation and satisfaction of this
Mortgage.
8. AFTER ACQUIRED PROPERTY. The lien of this Mortgage will automatically
attach, without further act, to all after acquired property of whatever kind
located in, on or contiguous to, or attached to, or used or intended to be used
in connection with or in the operation of the Mortgaged Property.
9. ADDITIONAL DOCUMENTS. At all times that this Mortgage is in effect,
upon Mortgagee's request, Mortgagor shall at Mortgagor's expense make, execute
and deliver to Mortgagee any and all such further mortgages, financing
statements, instruments of further assurance, certificates and other documents
as Mortgagee may consider reasonably necessary or desirable in order to
effectuate, complete, perfect, continue or preserve the obligations of Mortgagor
under the Obligation and this Mortgage, and the lien of this Mortgage as a
paramount first lien upon all the Mortgaged Property. Upon any failure by
Mortgagor to do so, Mortgagee may make, execute, record, file, re-record,
reinscribe or refile any and all such mortgages, instruments, certificates and
documents for and in the name of Mortgagor. Mortgagor hereby irrevocably
appoints Mortgagee as agent and attorney-in-fact of Mortgagor to do all things
necessary to effectuate or assure compliance with this Mortgage.
10. EVENT OF DEFAULT. Any one of the following shall constitute an event
of default:
a) Failure by Mortgagor to pay as and when the same are due and
payable, any principal or interest due under the Obligation, or any deposits for
taxes and assessments or insurance
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premiums due hereunder, or any other sums to be paid by Mortgagor hereunder or
under any loan agreement or other instrument evidencing or securing the
Obligation, which failure is not cured within ten (10) days after the due date.
b) Failure by Mortgagor to duly keep, perform and observe any other
covenant, condition or agreement in the Obligation, this Mortgage, or any loan
agreement or other instrument now or hereafter evidencing or securing the
Obligation for a period of thirty (30) days after Mortgagee gives written notice
to Mortgagor specifying the breach.
c) If Mortgagor or any guarantor or endorser of the Obligation:
(i) files a voluntary petition in bankruptcy, or (ii) files any petition or
answer seeking or acquiescing in any reorganization, arrangement, composition,
liquidation, dissolution or similar relief for itself under any law relating to
bankruptcy, insolvency or other relief for debtors, or (iii) seeks or consents
to or acquiesces in the appointment of any trustee, receiver, master or
liquidator of itself or of any substantial part of the Mortgaged Property or of
the rents, revenues, issues, earnings, profits or income thereof, or (iv) any
such trustee, liquidator, receiver or master is appointed, or a bankruptcy or
other insolvency proceeding is brought against any such person without the prior
written consent of Mortgagee, which appointment or proceeding shall remain
unvacated and unstayed for an aggregate of sixty (60) days whether or not
consecutive.
d) Any breach of any warranty or material untruth of any
representation of Mortgagor or any guarantor or endorser of the Obligation,
contained in the Obligation, this Mortgage or any loan agreement or other
instrument evidencing, securing or given in connection with the Obligation.
e) Any default under any instrument guaranteeing or endorsing the
Obligation or under any other mortgage or security agreement encumbering all or
any part of the Mortgaged Property whether prior to or junior to this Mortgage
and whether or not the existence of such lien is permitted hereby, if such
default continues in effect for more than thirty (30) days after written notice
thereof to the Mortgagor; provided that no notice and grace period shall be
required to be given if any action to foreclose or sell any Mortgaged Property
is taken by any third party.
f) If this Mortgage, the Obligation or any instrument evidencing,
securing, endorsing or guaranteeing the Obligation shall be invalid or
unenforceable in whole or material part or any guarantor, endorser or obligor
under an instrument securing the Obligation shall terminate or repudiate its
obligations.
g) Any default by Mortgagor with respect to any material obligations
now or hereafter owed by such person to Mortgagee, including without limitation,
obligations owed pursuant to a Note and Mortgage of even date made by Mortgagor
to Mortgagee evidencing and securing indebtedness in the original amount of
$18,300,000.
11. ACCELERATION. If an event of default shall have occurred, Mortgagee
may declare the outstanding principal amount of the Obligation and the interest
accrued thereon, and all other sums secured hereby, to be due and payable
immediately. Upon such declaration all principal and interest and other sums
shall immediately be due and payable without demand or notice. If any part of
the Obligation is payable on demand, nothing herein shall be deemed to limit the
right of the holder of such Obligation to demand payment.
12. REMEDIES AFTER DEFAULT.
(a) Mortgagee, at its option, may declare the entire unpaid balance of the
Obligations secured hereby to be immediately due and payable, and upon any such
declaration the entire Obligations secured hereby shall become and be
immediately due and payable;
(b) Mortgagee may commence appropriate Louisiana foreclosure proceedings
under this Mortgage, in which case Mortgagee may cause the Mortgaged Property,
or any part or parts thereof, to be immediately seized and sold, whether in term
of court or in vacation, under ordinary or executory process, in accordance with
applicable Louisiana law, to the highest bidder for cash, with or without
appraisement, and without the necessity of making additional demand upon or
notifying Mortgagor or placing Mortgagor in default, all of which are expressly
waived.
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(c) For purposes of foreclosure under Louisiana executory process
procedures, Mortgagor confesses judgment and acknowledges to be indebted unto
and in favor of Mortgagee, up to the full amount of the Obligations secured
hereby, in principal, interest, costs, expenses, and attorneys' fees. To the
extent permitted under applicable Louisiana law, Mortgagee additionally waives:
(a) the benefit of appraisal as provided in Articles 2332, 2336, 2723 and 2724
of the Louisiana Code of Civil Procedure, and all other laws with regard to
appraisal upon judicial sale; (b) the demand and three (3) days' delay as
provided under Articles 2639 and 2721 of the Louisiana Code of Civil Procedure;
(c) the notice of seizure as provided under Articles 2293 and 2721 of the
Louisiana Code of Civil Procedure; (d) the three (3) days' delay provided under
Articles 2331 and 2722 of the Louisiana Code of Civil Procedure; and (e) all
other benefits provided under Articles 2331, 2722 and 2723 of the Louisiana Code
of Civil Procedure and all other Articles not specifically mentioned above.
Should it become necessary for Mortgagee to foreclose under this Mortgage, all
declarations of fact, which are made under an authentic act before a Notary
Public in the presence of two witnesses, by a person declaring such facts to lie
within his or her knowledge, shall constitute authentic evidence for purposes of
executory process and also for purposes of La. R.S. 9:3509.1, La. R.S.
9:3504(D)(6) and La. R.S. 10:9-508, where applicable.
(d) Should any or all of the Mortgaged Property be seized as an incident
to an action for the recognition or enforcement of this Mortgage, by executory
process, sequestration, attachment, writ of fieri facias or otherwise, Mortgagor
hereby agrees that the court issuing any such order shall, if requested by
Mortgagee, appoint Mortgagee, or any agent designated by Mortgagee, or any
person or entity named by Mortgagee at the time such seizure is requested, or
any time thereafter, as Keeper of all or a part of the Mortgaged Property as
provided under La. R.S. 9:5136, et seq. Such a Keeper shall be entitled to
reasonable compensation. Mortgagor agrees to pay the reasonable fees of such
Keeper, which compensation to the Keeper shall also be secured by this Mortgage.
(e) With respect to personal (movable) property ("Personal Property")
subject to the Uniform Commercial Code, Mortgagee shall have all of the rights
and remedies of a secured party under the Uniform Commercial Code.
(f) Should one or more Events of Default occur or exist under this
Mortgage, Mortgagee shall have the additional right, at its sole option, to
separately sell the aforesaid Personal Property and Rights, or any part or parts
thereof, at private or public sale, at such price or prices as Mortgagee may
deem best, either for cash or for any other compensation, or on credit, or for
future delivery, without the assumption of any credit risk. Such sale may be
without appraisement, the benefit of which is also expressly waived by
Mortgagor. Mortgagee may exercise any other remedies with regard to the
Personal Property and Rights as may be authorized under the Uniform Commercial
Code. The sale, lease or other disposition of such collateral after default may
be for cash, credit, or any combination thereof. Mortgagee may purchase all or
any part of such collateral at public sale (or if permitted by law, at private
sale) and in lieu of actual payment of any such purchase price, may set-off the
amount of such price against then outstanding balance of the Obligations. Any
notice required to be given by Mortgagee of a sale, lease or other disposition,
or other intended action with respect to such collateral, given at least ten
(10) calendar days prior to such proposed action, shall constitute reasonable
and fair notice to Mortgagor of such action.
(g) Mortgagee may, in addition to the foregoing remedies, or in lieu
thereof, in Mortgagee's discretion, commence an appropriate action against
Mortgagor seeking specific performance of any covenant contained herein, or in
aid of the execution or enforcement of any power herein granted.
(h) Mortgagee shall have the right, at its sole option and election, at
any time upon an Event of Default, to directly collect and receive all proceeds
and/or payments arising under or in any way accruing from Mortgagor's rights, as
such amounts become due and payable. In order to permit the foregoing,
Mortgagor unconditionally agrees following an Event of Default to deliver to
Mortgagee, immediately following demand, any and all of Mortgagor's records,
ledger sheets, and other documentation, in the form requested by Mortgagee, with
regard to Mortgagor's Rights and any and all proceeds and/or payments applicable
thereto. Mortgagee shall have the further right upon an Event of Default, where
appropriate and within Mortgagee's sole discretion, to file suit, either in
Mortgagee's own name or in the name of Mortgagor, to collect any and all
proceeds and payments that may then and/or in the future be due and owing under
and/or as a result of such rights. Where it is
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necessary for Mortgagee to attempt to collect any such proceeds and/or payments
from the obligors therefor, Mortgagee may compromise, settle, extend, or renew
for any period (whether or not longer than the original period) any obligation
or indebtedness thereunder or evidenced thereby, or surrender, release, or
exchange all or any part of said obligation or indebtedness, without affecting
the liability of Mortgagor under this Mortgage or under the Indebtedness. To
that end, Mortgagor hereby irrevocably constitutes and appoints Mortgagee as its
attorney-in-fact, coupled with an interest and with full power of substitution,
to take following an Event of Default any and all such actions and any and all
other actions permitted hereby, either in the name of Mortgagor or Mortgagee.
13. NO WAIVER. No delay or omission of Mortgagee or of any holder of the
Obligation to exercise any right, power or remedy accruing upon any event of
default shall exhaust or impair any such right, power or remedy or shall be
construed to waive any event of default or to constitute acquiescence therein.
14. NON-EXCLUSIVE REMEDIES. No right, power or remedy conferred upon or
reserved to Mortgagee by the Obligation, this Mortgage, or any other instrument
now or hereafter evidencing or securing the Obligation is exclusive of any other
right, power or remedy, but each and every such right, power and remedy shall be
cumulative and concurrent and shall be in addition to any other right, power and
remedy given hereunder or under the Obligation or any loan agreement or other
instrument evidencing or securing the Obligation, now or hereafter existing at
law, in equity or by statute. No action taken by Mortgagee shall be deemed an
election of remedies.
15. SUCCESSORS AND ASSIGNS BOUND. Whenever one of the parties hereto is
named or referred to herein, the heirs, successors and assigns of such party
shall be included and all covenants and agreements contained in this Mortgage,
by or on behalf of Mortgagor or Mortgagee, shall bind and inure to the benefit
of their respective heirs, successors and assigns, whether or not so expressed.
All references herein to Mortgagee shall mean the holder of the Note from time
to time.
16. SEPARATE PROVISIONS. In the event that any of the covenants,
agreements, terms or provisions contained in the Obligation, this Mortgage or
any other instrument securing the Obligation shall be invalid, illegal or
unenforceable in any respect, the validity of the remaining covenants,
agreements, terms and provisions contained herein and in the Obligation and any
other instrument securing the Obligation shall be in no way affected, prejudiced
or disturbed thereby.
17. ATTORNEYS' FEES. The term "attorneys' fees" as used in this Mortgage
includes any and all reasonable legal fees paid or incurred by Mortgagee of
whatever nature and whether or not incurred at or before trial, on appeal, in
bankruptcy proceedings or administrative actions.
18. FUTURE ADVANCES. [Intentionally deleted]
19. OBLIGATION OF MORTGAGOR. Mortgagor shall pay the cost of releasing or
satisfying this Mortgage of record.
20. NO SALE, JUNIOR LIEN OR OTHER TRANSFER; PACT DE NON ALIENANDO. It is
understood and agreed by Mortgagor that as part of the inducement to Mortgagee
to make the extension of credit evidenced by the Obligation, Mortgagee has
considered and relied on the reliability of Mortgagor and Mortgagor's ownership
and management of the Mortgaged Property, and the fact that there are no other
liens on the Mortgaged Property. To induce such reliance, Mortgagor covenants
and agrees not to directly or indirectly sell, convey, transfer, mortgage, or
otherwise dispose of any interest in or any part of the Mortgaged Property
without the prior written consent of Mortgagee to be given or withheld in
Mortgagee's sole discretion, and any such sale, conveyance, transfer or mortgage
made without Mortgagee's prior written consent shall be void. If any person
should obtain an interest in all or any part of the Mortgaged Property pursuant
to the execution or enforcement of any lien, security interest or other right,
whether superior, equal or subordinate to this Mortgage or the lien hereof, such
event shall be deemed to be a transfer by Mortgagor and an event of default
hereunder. If Mortgagor is other than an individual, any direct or indirect
sale, assignment, pledge, transfer, grant of a security interest in or other
disposition of more than 25% of the legal or equitable interests (which
percentage shall be calculated, at Mortgagee's option, based upon value, voting
interests, capital or income interests) in the Mortgagor within any thirty-six
(36) month period after the date of this Mortgage shall constitute a transfer of
the Mortgaged Property in violation of this section. Transfer or other
disposition by merger, consolidation or operation of law (other than transfers
upon death) shall be considered "transfers" within the meaning of this Paragraph
20. The provisions of this section shall be
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in addition to and not in lieu of any provisions in any loan agreement or other
instrument relating to the Obligation restricting change of control of
Mortgagor or transfer of the Mortgaged Property.
21. PARTIAL RELEASES. Mortgagee may, at its sole discretion, but shall
not be required to, release portions of the Mortgaged Property on such terms and
conditions as it deems acceptable and any person having an interest in the
Mortgaged Property takes such interest subject to such discretionary releases.
22. DEFAULT RATE. The Default Rate shall be the lower of (a) highest rate
of interest after maturity contained in any note or other evidence of any
portion of the Obligation, but if none is stated then it shall be four percent
(4%) per annum in excess of the rate stated in any note or other evidence of any
portion of the Obligation which would have been applicable had such Obligation
not matured or no default had occurred or, (b) twenty-one percent (21%) per
annum.
23. AMENDMENT OF DOCUMENTS. Mortgagor agrees that the Obligation and any
other document or instrument evidencing, guaranteeing or securing the Obligation
may be amended, restated, renewed, extended, increased, decreased or otherwise
changed by the parties thereto and any such changes, or the release or
modification of any security for or guaranty or endorsement of the Obligation,
or any forbearance, indulgence, delay or waiver in enforcing the Obligation or
any instrument evidencing, securing or guaranteeing the Obligation, or any other
action, delay or omission of Mortgagee or other person in connection with the
Obligation, any such instruments or this Mortgage shall not in any way diminish
the obligations of Mortgagor or the liens granted hereunder. Neither the
bankruptcy of the Mortgagor nor any discharge of, or defense against payment of,
the Obligation (except the defense of payment in full) shall affect the lien of
this Mortgage or the rights of the Mortgagee. The Mortgagor waives presentment,
protest, notice of protest and notice of dishonor and any and all other notices
and requirements otherwise necessary to bind the Mortgagor.
24. USURY. Notwithstanding anything contained in this instrument or in
any other instrument evidencing, describing or securing the Obligation to the
contrary, in no event will the interest due hereunder or under the Obligation
exceed the maximum amount allowed by law from time to time while any part of the
indebtedness or Obligation secured hereby is outstanding, and in the event any
amount in excess of the lawful maximum is charged by the Mortgagee or paid by
the Mortgagor, Mortgagor shall be entitled to an immediate refund of the amount
of such excess together with interest on such excess amount from the date paid
until reimbursed at the maximum lawful rate in effect at the time of the
overcharge.
25. TIME OF ESSENCE. Time shall be of the essence in the performance of
each and every one of the Mortgagor's obligations hereunder.
26. JOINT AND SEVERAL OBLIGATIONS. If more than one person is named as
Mortgagor, the obligations, agreements and representations herein shall be joint
and several and solidary with each other. Any matter which is an event of
default with respect to Mortgagor shall be an event of default if it occurs with
respect to any person named as Mortgagor.
27. OTHER ENCUMBRANCES. If the Mortgaged Property is subject to other
encumbrances, Mortgagor shall not permit such encumbrances to secure more than
the amount presently so secured reduced from time to time by any presently
scheduled reductions in the amount secured and will not permit the principal
amount so secured from time to time to be increased through additional advances
or otherwise. The Mortgagor shall give immediate telephonic and written notice
to Mortgagee of any breach or default under any such instruments evidencing such
other encumbrances. The Mortgagor shall not permit the extension, amendment or
other modification of such other encumbrances without the prior written consent
of the Mortgagee. Upon the occurrence of a default under such encumbrance,
Mortgagee may, but shall not be required to cure such default, satisfy such
encumbrance or obtain release of all or any of the Mortgaged Property from such
encumbrance and any funds spent by Mortgagee in so doing shall be considered
future advances secured by this Mortgage. Any such payments shall not be deemed
to cure any default hereunder.
28. NOTICES. Notices shall be given to the parties at the following
addresses or such other addresses as designated in writing from time to time:
If to Mortgagor: c/o EastGroup Properties
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300 One Jackson Place
188 East Capitol St.
Jackson, Mississippi 39201
Attn: David H. Hoster II, President
If to Mortgagee: Meridian Industrial Trust, Inc.
455 Market Street, 17th Floor
San Francisco, CA 94105
Attn: Dennis D. Higgs, Executive Vice
President
29. LEASES, EASEMENTS, RESTRICTIONS.
a) All leases of the Mortgaged Property shall contain an express
clause satisfactory to the Mortgagee subordinating the interest of the lessee to
this Mortgage and agreeing that, at the election of the Mortgagee, such lessee
will attorn to the Mortgagee or other person acquiring Mortgagor's title by
foreclosure or otherwise, notwithstanding such subordination. The Mortgagor
shall perform all its obligations as and when due under any leases of the
Mortgaged Property and, except in the ordinary course of business, agrees not to
modify or agree to the termination of any such lease or any guaranty or security
therefor, accept more than one month's advance rent under any such lease, or
waive any material right under any such lease or any guaranty or security
therefor (whether or not given the option to consent to such waiver in the lease
or guaranty).
b) Mortgagor shall not grant or impose any covenants, restrictions
or easements affecting the Mortgaged Property without the prior written consent
of Mortgagee. The Mortgagor shall not amend or terminate, or waive any rights
under, any easements, restrictions or covenants affecting the Mortgaged Property
without the express written consent of the Mortgagee. The Mortgagee is hereby
granted the irrevocable right for itself or for Mortgagor to take any action
required of Mortgagor, as lessor, by any lease if the Mortgagor should fail to
do so and is irrevocably appointed as the Mortgagor's attorney-in-fact for such
purposes. Any amounts expended by Mortgagee in fulfilling the Mortgagor's
obligations shall bear interest at the Default Rate specified herein and shall
be secured by this Mortgage.
30. SECURITY AGREEMENT. This Mortgage is intended to be a "security
agreement" as defined in Section 9-105 of the UCC and the Mortgagor and
Mortgagee are "debtor" and "secured party" respectively, as such terms are
defined in Section 9-105 of the UCC. In addition to other rights granted
herein, the Mortgagee shall have a security interest in, and the right to set
off, any money, deposits, securities or other assets of any Mortgagor now or
hereafter in the possession or control of Mortgagee or its agents or
correspondents for whatever reason or purpose, including items in the process of
collection.
31. PRINCIPAL OFFICE. The chief executive office (or principal residence
address if Mortgagor is an individual) of Mortgagor is at the address set forth
in Section 28. Mortgagor agrees to give at least thirty (30) days' prior
written notice to Mortgagee prior to moving its chief executive office or
residence address.
32. POWERS. All powers of attorney and other rights granted to Mortgagee
herein are coupled with an interest and are irrevocable.
33. CONSENTS. Unless otherwise specified, any approvals or consents of
the Mortgagee required herein may be given or withheld in the discretion of the
Mortgagee.
34. ENVIRONMENTAL CONDITION OF PROPERTY; INDEMNIFICATION.
a) Mortgagor warrants and represents to Mortgagee after thorough
investigation that to the best of Mortgagor's knowledge:
i) The Mortgaged Property described herein is now and at all
times hereafter will continue to be in full compliance with all federal,
state and local environmental laws and regulations (collectively,
"Environmental Laws"), including, but not limited to, the Comprehensive
Environmental Response, Compensation and Liability Act of 1980 ("CERCLA"),
Public Law No 96-510, 94 Stat. 2767, 42 U.S.C. Sections 9601, ET SEQ., the
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Superfund Amendments and Reauthorization Act of 1986 ("SARA"), Public Law
No. 99-499, 100 Stat. 1613, the Resource Conservation and Recovery Act of
1976, the Louisiana Environmental Quality Act (La. R.S. Section 30: 2001
et seq.) as they have been amended to date, or any other applicable
federal, state or local laws or ordinances relating to the environment;
ii) The Mortgagor has received no notice from any governmental
entity of the existence or suspected or alleged existence of any violation
of any Environmental Law; and
iii) (A) As of the date hereof there are no hazardous or toxic
materials, substances, wastes or other environmentally regulated
substances, including, without limitation, oil, petroleum or chemical
liquids, solids or gaseous products or any materials containing asbestos,
the presence of which is limited, regulated or prohibited by any state,
federal or local governmental authority or agency having jurisdiction in
the premises, or which are otherwise known to pose a hazard to health or
safety (collectively, "Hazardous Materials"), located on, in or under the
Mortgaged Property or used in connection therewith, or (B) Mortgagor has
fully disclosed to Mortgagee in writing the existence, extent and nature of
any such Hazardous Materials, which Mortgagor is legally authorized and
empowered to maintain on, in or under the Mortgaged Property or use in
connection therewith, and Mortgagor has obtained and will maintain all
licenses, permits and approvals with respect thereto, and is in full
compliance with all of the terms, conditions and requirements of such
licenses, permits and approvals.
b) Mortgagor covenants that it will promptly notify Mortgagee of any
change in the nature or extent of any Hazardous Materials existing on, in or
under the Mortgaged Property or used in connection therewith, and will transmit
to Mortgagee copies of any citations, orders, notices or other material
governmental or other communication received with respect to any other Hazardous
Materials affecting the Mortgaged Property.
c) Mortgagor shall not permit the use, storage, manufacture or
production of Hazardous Material on, in or under, or in connection with, the
Mortgaged Property except as specifically permitted in writing by the Mortgagee
and then only in strict conformity with all Environmental Laws.
d) Mortgagor shall indemnify and hold Mortgagee harmless from and
against any and all damages, penalties, fines, claims, liens, suits,
liabilities, costs (including clean-up costs), judgments and expenses (including
attorneys', consultants' or experts' fees and expenses) of every kind and nature
suffered by or asserted against Mortgagee as a direct or indirect result of any
warranty or representation made by Mortgagor in this section being false or
untrue in any material respect or any requirement under any law, regulation or
ordinance, local, state or federal, which requires the elimination or removal of
any Hazardous Materials by Mortgagee, Mortgagor or any transferee of Mortgagor
or Mortgagee or imposes any fines, liabilities or other penalty on any such
person. The indemnities herein shall be without regard to any fault or
knowledge of Mortgagor.
e) Upon discovery of any Hazardous Materials at levels which violate
Environmental Laws, Mortgagee shall have the right to require from time to time
such environmental audits or inspections as it may deem necessary to ensure
compliance with this section and payment of the cost of any such audits or
inspections shall be the responsibility of the Mortgagor.
f) Mortgagor's obligations hereunder shall not be limited to any
extent by the term of the Obligation secured hereby, and, as to any act or
occurrence prior to payment in full and satisfaction of said Obligation which
gives rise to liability hereunder, shall continue, survive and remain in full
force and effect notwithstanding payment in full and satisfaction of said
Obligation and this Mortgage or foreclosure under this Mortgage, or delivery of
a deed in lieu of foreclosure.
35. WAIVER OF JURY TRIAL. THE MORTGAGOR AND MORTGAGEE HEREBY KNOWINGLY,
VOLUNTARILY AND INTENTIONALLY WAIVE THE RIGHT EITHER OF THEM MAY HAVE TO A TRIAL
BY JURY IN RESPECT OF ANY LITIGATION BASED UPON THIS MORTGAGE OR ARISING OUT OF,
UNDER OR IN CONNECTION WITH THE NOTE, THIS MORTGAGE AND ANY AGREEMENT
CONTEMPLATED TO BE EXECUTED IN CONJUNCTION HEREWITH, OR ANY COURSE OF CONDUCT,
COURSE OF DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF ANY
PARTY. THIS PROVISION IS A MATERIAL INDUCEMENT FOR THE MORTGAGEE EXTENDING
CREDIT TO THE MORTGAGOR.
36. Each reference to a "lien" will include a reference to a "privilege"
"mortgage", and/or "security interest", as appropriate. Each reference to an
"easement" or "easements" will include a
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reference to a "servitude" and "servitudes". Each reference to a county will
include a reference to a Louisiana parish. The terms "land", "real property",
and "real estate" will mean "immovable property" as that term is used in the
Louisiana Civil Code. The term "personal property" or "personalty" will mean
"movable property" as that term is used in the Louisiana Civil Code.
The parties to this Mortgage hereby waive the production of mortgage,
conveyance, tax, paving, assignment of accounts receivable and other
certificates and relieve and release the Notary before whom this Mortgage was
passed from all responsibilities and liabilities in connection therewith.
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THUS DONE AND PASSED, on the _______ day of September, 1997, effective as
of the _____ day of September, 1997, in the State and County aforesaid, by the
undersigned Mortgagor in the presence of the undersigned Notary and the
undersigned competent witnesses, who hereunto sign their names with Mortgagor
after reading of the whole.
WITNESSES: EASTGROUP PROPERTIES, L.P., a Delaware
limited partnership
___________________________________ By: EastGroup Properties General
Partners, Inc., its general partner
___________________________________ By:
---------------------------------
Title
By:
---------------------------------
Title
____________________________________________________
NOTARY PUBLIC
My Commission Expires:
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EXHIBIT A
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EXHIBIT B
The following, whether now owned or hereafter acquired:
All minerals, soil, flowers, shrubs, crops, trees, timber and other
emblements now or hereafter on the Property described on Exhibit A hereto
(herein referred to as "Property") or under or above the same or any part or
parcel thereof.
All machinery, apparatus, equipment, fittings, fixtures, actually or
constructively attached to the Property and including all trade, domestic and
ornamental fixtures and articles of personal property of every kind and nature
whatsoever now or hereafter located in, upon or under the Property or any part
thereof and used or usable in connection with any present or future operation of
the Property, including, but without limiting the generality of the foregoing,
all heating, air-conditioning, freezing, lighting, laundry, incinerating and
power equipment; engines; pipes; pumps; tanks; motors; conduits; switchboards;
plumbing, lifting, cleaning, fire prevention, fire extinguishing, refrigerating,
ventilating and communication apparatus; boilers, ranges, furnaces, oil burners
or units thereof; appliances; air-cooling and air-conditioning apparatus; vacuum
cleaning systems; elevators; escalators; shades; awnings; screens; storm doors
and windows; stoves; wall beds; built-in refrigerators; attached cabinets;
partitions; ducts and compressors; rugs and carpets; draperies; furniture and
furnishings; together with all building materials and equipment now or hereafter
delivered to the Property and intended to be installed therein, including but
not limited to lumber, plaster, cement, shingles, roofing, plumbing fixtures,
pipe, lath, wallboard, cabinets, nails, sinks, toilets, furnaces, heaters,
brick, tile, water heaters, screens, window frames, glass, doors, flooring,
paint, lighting fixtures and unattached refrigerating, cooking, heating and
ventilation appliances and equipment; together with all additions and accessions
thereto and replacements thereof.
All of the water, sanitary and storm sewer systems which are now or
hereafter located by, over, and upon the Property or any part and parcel
thereof, and which water system includes all water mains, service laterals,
hydrants, valves and appurtenances, and which sewer system includes all sanitary
sewer lines, including mains, laterals, manholes and appurtenances.
All paving for streets, roads, walkways or entrance ways now or hereafter
located on the Property or any part or parcel thereof.
All interest as lessor in and to all leases or rental arrangements of the
Property, or any part thereof, heretofore made and entered into, and in and to
all leases or rental arrangements hereafter made and entered into, together with
any and all guarantees of such leases or rental arrangements and including all
present and future security deposits and advance rentals.
All rights under agreements to sell or otherwise convey the Property or any
collateral listed herein and all cash and noncash proceeds thereof, including
purchase money, promissory notes and installment sales agreements, and any
rights in collateral or guaranties securing any such notes or other proceeds.
Any and all awards or payments, including interest thereon, and the right
to receive the same, as a result of (a) the exercise of the right of eminent
domain, (b) the alteration of the grade of any street, or (c) any other injury
to, taking of, or decrease in the value of the Property, all improvements
thereof and other collateral in this Exhibit.
All unearned premiums accrued, accruing or to accrue under any and all
insurance policies now or hereafter provided pursuant to the terms of security
agreements, and all proceeds or sums payable for the loss of or damage to
(a) the Property, any improvements thereto, or the collateral described herein,
or (b) rents, revenues, income, profits or proceeds from leases, franchises,
concessions or licenses or on any part of the Property.
All contracts, contract rights, accounts receivable and general intangibles
arising from contracts entered into in connection with development, construction
upon, operation or sale of part or all of the Property, including contract or
sales deposits, and all proceeds thereof.
All rights to any fictitious or other names or trade names used in
conjunction with the property.
All furniture, furnishings, appliances and equipment and all other tangible
personal property now or hereafter owned or acquired and now or hereafter
located or installed at or in any other improvements on the Property or
elsewhere at or on the Property, together with all accessories and parts now
attached to or used in connection with any such property or which may hereafter
at any time be placed in or added thereto and also any and all replacements and
proceeds of any such Property.
All architectural and engineering plans and specifications, surveys, site
plans, appraisals, feasibility studies and development proposals, building
permits, easements, licenses, permits, agreements and other general intangibles
now or hereafter existing pertaining to the Property.
All rights under payment, performance, and other types of bonds relating to
the ownership, development, construction or operation of the Property of any
improvements thereto and all rights under governmental and nongovernmental
permits, licenses and agreements relating to the ownership, development,
construction or operation of the Property or improvements thereto, including
rights under any land sale or condominium registrations, development orders and
other agreements, permits, orders or rights relating to land use.
All rights under any covenants or restrictions, party wall agreements,
set-back agreements, cross-easement agreements and similar agreements now or
hereafter affecting the Property, including the right to grant waivers and
releases and all other rights of the owner or
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declarant thereunder.
All substitutions for, amendments to or modifications, extensions or
renewals of any collateral described herein and all proceeds thereof, in
whatever form.
