EXHIBIT 10.1
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PURCHASE AGREEMENT
(RIVEREDGE PLACE; ATLANTA, GEORGIA)
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THIS AGREEMENT is made and entered into as of December 18, 1997 (the
"Effective Date") by and between CARLYLE REAL ESTATE LIMITED PARTNERSHIP -
XV, an Illinois limited partnership (hereinafter called "SELLER"), and CMD
REALTY INVESTMENT FUND III, L.P. an Illinois limited partnership
(hereinafter called "BUYER").
R E C I T A L S
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A. Seller is the owner of that certain real property located in
the City of Atlanta, County of Xxxxxx, State of Georgia, consisting
primarily of an office building (the "BUILDING") sometimes known as
"RiverEdge Place".
B. Buyer desires to purchase such premises on the terms and
conditions hereinafter documented.
NOW, THEREFORE, in consideration of the mutual undertakings of the
parties hereto, it is hereby agreed as follows:
1. PURCHASE AND SALE. Subject to the terms of this Agreement,
Seller shall sell to Buyer, and Buyer shall purchase from Seller, the land
(the "LAND") described in Exhibit "A" attached hereto and made a part
hereof, together with all right, title and interest of Seller in and to all
improvements, structures and fixtures located upon the Land, all right,
title and interest of Seller in and to those items of personal property
described in Exhibit "B" attached hereto and made a part hereof, all right,
title and interest of Seller in and to the name "RiverEdge Place", and, all
right, title and interest of Seller in and to all leases set forth on
Exhibit "G" attached hereto (the "LEASES") and, to the extent assignable,
all right, title and interest of Seller in and to the following: contract
rights and agreements; tenant lists, advertising material and telephone
exchange numbers; records and correspondence relating directly to the
operation of the Property (the foregoing excluding any internal partnership
matters relating to Seller and any attorney-client or other similarly
protected information); plans, specifications; third party reports and
studies; studies, easements, appurtenances, licenses, permits, certificates
of occupancy, approvals, dedications, entitlements, warranties, guaranties
and representations and all other intangible property not included in the
foregoing list, relating solely to the Property (hereinafter, collectively,
the "PROPERTY"), all upon the terms, covenants and conditions hereinafter
set forth.
2. PURCHASE PRICE.
A. The purchase price (the "PURCHASE PRICE") for the
Property shall be the sum of Twenty-Six Million Six Hundred Thousand
Dollars ($26,600,000).
3. PAYMENT OF PURCHASE PRICE. Subject to the terms of this
Agreement, the Purchase Price shall be paid to Seller by Buyer as follows:
A. ESCROW DEPOSIT. Within one (1) business day of Buyer's
receipt of a fully executed original of this Agreement, Buyer shall deliver
$250,000 (together with all interest thereon, the "ESCROW DEPOSIT") to
Chicago Title and Trust Insurance Company, Chicago, Illinois, (which
company, in its capacity as escrow holder hereunder, is called "ESCROW
HOLDER"). The Escrow Deposit shall be made by wire transfers, a bank or
cashier's check drawn on a national money center banking institution (or by
other delivery of good funds), and the amounts so deposited shall be held
by Escrow Holder as an xxxxxxx money deposit in accordance with the terms
and provisions of a customary strict joint order xxxxxxx money escrow
agreement to be executed by and between Seller, Buyer and Escrow Holder.
At all times in which the Escrow Deposit is being held by the Escrow
Holder, the Escrow Deposit shall be invested by Escrow Holder in the
following investments ("APPROVED INVESTMENTS"): (i) United States Treasury
obligations, (ii) United States Treasury-backed repurchase agreements
issued by a major national money center banking institution reasonably
acceptable to Buyer and Seller, or (iii) such other manner as may be
reasonably agreed to by Seller and Buyer.
B. CLOSING PAYMENT. The Purchase Price, as adjusted by the
application of the Escrow Deposit and by the prorations and credits
specified herein, shall be paid by wire transfer on the "Closing Date", as
hereinafter defined (the amount to be paid under this subparagraph B being
herein called the "CLOSING PAYMENT").
4. CONDITIONS PRECEDENT. Each of the conditions set forth in
Paragraphs 4A, B, C. D and E below (the "BUYER CONDITIONS") shall be a
condition precedent to Buyer's obligation to consummate the transactions
contemplated by this Agreement; each of the conditions set forth in
Paragraphs 4F and G below (the "SELLER CONDITIONS") shall be a condition
precedent to Seller's obligation to consummate the transactions
contemplated in this Agreement.
A. TITLE MATTERS.
(1) TITLE REPORT. Seller has delivered to Buyer a
commitment for an ALTA Form B Owner's Policy of Title Insurance ("TITLE
COMMITMENT") covering the Property from Chicago Title Insurance Company
(which company, in its capacity as title insurer hereunder, is herein
called the "TITLE COMPANY"). In addition, Seller has also delivered to
Buyer a survey of the Property dated November 21, 1997, prepared by Xxx-
Xxxxxx & Associates, P.C., ("SURVEY"). The Survey shall (i) be certified
to Buyer, the Title Company, Xxxxx Fargo Bank, National Association,
(ii) be prepared in accordance with the most recent "Minimum Standard
Detail Requirements for Land Title Surveys" jointly established by ALTA and
ACSM, and (iii) meet the requirements of an urban survey, including all
Table A matters (except item 5). Buyer shall have until the expiration of
the Due Diligence Period, to deliver to Seller written notice (an "INITIAL
TITLE OBJECTION NOTICE") of Buyer's disapproval or any matter, exception,
defect or condition relating to the Title Commitment or the Survey. If
Buyer shall deliver the Approval Notice on or before the end of the Due
Diligence Period, Buyer shall be deemed to have approved the exceptions to
title shown on the Title Commitment and the matters disclosed on the Survey
(except for those to which Buyer has objected in the Initial Title
Objection Notice). Approval by Buyer of any additional exceptions to title
or survey matters first disclosed after the end of the Due Diligence Period
shall be a condition precedent to Buyer's obligation to purchase the
Property (Buyer hereby agreeing that its approval of such additional
exceptions to title or survey matters which are of a minor nature shall not
be unreasonably withheld but otherwise shall be given or withheld in its
sole and absolute discretion). Unless Buyer gives written notice (an
"ADDITIONAL TITLE OBJECTION NOTICE") that it disapproves any such
additional exceptions to title or survey matters, stating the exceptions so
disapproved, on or before the sooner to occur of (x) the Closing Date or
(y) 5 business days after receipt of (1) written notice thereof, and (2) a
copy of all of the documents underlying such additional title or survey
matters, Buyer shall be deemed to have approved said additional exceptions.
If, for any reason, on or before the Closing Date, Seller does not cause
any exceptions to title or survey matters which Buyer disapproves in either
an Initial Title Objection Notice or an Additional Title Objection Notice
either to be removed or to obtain a title endorsement (if available)
acceptable to Buyer in Buyer's reasonable discretion insuring over such
disapproved matter on or before the Closing Date at no cost or expense to
Buyer (Seller having the right but not the obligation to do so), Buyer
shall have the right to either (a) terminate this Agreement by delivery of
written notice of termination on or before the Closing Date, or (b) elect
to accept title to the Property as it then is with the right to deduct from
the Purchase Price a credit equal to (1) mortgages or deeds of trust
entered into or assumed by Seller, (2) mechanic's liens for work performed
by or on behalf of Seller, (3) income tax or judgment liens against Seller,
to the extent not otherwise paid or satisfied in conjunction with the
Closing, and (4) real property taxes for tax years prior to the current tax
year.
(2) EXCEPTIONS TO TITLE. Buyer shall be obligated to
accept title to the Property, subject to the following exceptions to title
(collectively, the "PERMITTED EXCEPTIONS"):
(a) Real estate taxes and assessments not yet due
and payable; and
(b) Those exceptions to title which Buyer fails
to disapprove in writing pursuant to the provisions of subparagraph A(1)
above (or which are otherwise approved pursuant to the provisions thereof).
Buyer's obligation to consummate the transactions contemplated by this
Agreement is hereby expressly conditioned upon the irrevocable commitment
of Title Company to issue to Buyer on the Closing Date an owner's title
insurance policy in the standard form issued in the State of Georgia
("OWNER'S POLICY"), in the face amount of the Purchase Price, which policy
(i) shows title to the Property to be vested of record in Buyer,
(ii) raises the Permitted Exceptions to be the only exceptions to title,
(iii) is dated no earlier than the date and time of the recording of the
"Deed" (defined below), (iv) provides for so-called "extended coverage"
over all general exceptions, and (v) includes the following endorsements:
survey identicality, access, creditor's rights, contiguity (if the Land is
comprised of multiple adjoining parcels), tax identification (single tax
parcel), 3.1 zoning with parking and owner's comprehensive 1 (collectively,
the "ENDORSEMENTS"); provided, however, the foregoing Endorsements shall
only constitute a condition to Buyer's obligation if Buyer shall have
obtained the Title Company's written agreement to issue the same during the
Due Diligence Period.
B. DUE DILIGENCE REVIEWS. Buyer shall have until 5:00 p.m.
(Central time) on December 18,1997 (the "DUE DILIGENCE PERIOD") within
which to perform and complete all of Buyer's due diligence examinations,
reviews and inspections of all matters pertaining to the purchase of the
Property, including all leases, service contracts, survey and title
matters, and all physical, environmental and compliance matters and
conditions respecting the Property. During the Due Diligence Period,
Seller shall provide Buyer with reasonable access to the Property upon
reasonable advance notice and shall deliver to Buyer, upon request, such
leases, service contracts and other contracts respecting the Property as
Buyer shall reasonably request (to the extent the same are in Seller's
possession or control). Buyer shall commence, and shall in good faith
pursue, its due diligence review hereunder. Buyer shall at all times
conduct its due diligence review, inspections and examinations in a manner
so as to not cause damage, loss, cost or expense to Seller or the Property
and so as to not materially interfere with or disturb any tenant at the
Property, and Buyer will indemnify, defend, and hold Seller and the
Property harmless from and against any damage to the Property or physical
injury or any other damage, loss, cost or expense caused by Buyer or any
agent or other person acting on behalf of Buyer in connection with Buyer's
due diligence review of the Property (the foregoing obligation surviving
any termination of this Agreement). Without limitation on the foregoing,
in no event shall Buyer make any intrusive physical testing (environmental,
structural or otherwise) at the Property (such as soil borings, water
samplings or the like) without Seller's express written consent, and (b)
from and after the date hereof, contact any tenant of the Property without
Seller's express written consent (which consent will not be unreasonably
withheld). Seller shall have the right, at its option, to cause a
representative of Seller to be present at all inspections, reviews and
examinations conducted hereunder. Buyer shall promptly deliver to Seller
true, accurate and complete copies of any written reports relating to the
Property prepared for or on behalf of Buyer by any third party and in the
event of termination hereunder, shall return all documents and other
materials furnished by Seller hereunder. Buyer shall keep all information
or data received or discovered in connection with any of the inspections,
reviews or examinations strictly confidential; provided that,
notwithstanding the foregoing, Buyer may disclose the existence of this
Agreement or any other information in connection with this Agreement (i) to
the extent as may be required by law, (ii) to the extent as may be required
by the Title Company, and (iii) to any of Buyer's officers, directors,
partners, employees, agents, attorneys, accountants, inspectors,
consultants, potential or actual investors, or potential or actual lenders
(provided the foregoing shall, in turn, be required to hold such
information in confidence). If, on or before the expiration of the Due
Diligence Period, Buyer shall determine that it intends to proceed with the
acquisition of the Property, then Buyer shall promptly notify Seller and
Escrow Holder of such determination in writing (such notice being herein
called the "APPROVAL NOTICE") (and thereafter, Buyer shall have no further
right to terminate this Agreement pursuant to this paragraph 4B). In the
event that, on or before the expiration of the Due Diligence Period, Buyer
shall fail to have delivered the Approval Notice to Seller, Buyer shall be
deemed to have elected to proceed with the acquisition of the Property.
Buyer acknowledges that, if the Approval Notice is given, or deemed to have
been given, such Approval Notice shall constitute Buyer's satisfaction with
the condition of the garage water-damage issues (the Purchase Price being
reflective of such matters). If, however, on or before the expiration of
the Due Diligence Period, Buyer shall determine in its sole and absolute
discretion that it no longer desires to acquire the Property, then Buyer
shall promptly notify Seller of such determination in writing (such notice
being herein called the "TERMINATION NOTICE"), whereupon the Escrow Deposit
shall promptly be returned to Buyer and this Agreement, and the obligations
of the parties hereunder, shall terminate.
C. ESTOPPEL CERTIFICATES. Receipt of estoppel certificates
("TENANT ESTOPPEL CERTIFICATES"), from South Trust Bank and Home Insurance
Company and from a sufficient number of additional tenants at the Property
so that, overall, Tenant Estoppel Certificates shall be received with
respect to 75% of the net rentable square feet of space covered by leases
in effect as of the date hereof (the "TOTAL RENTAL FOOTAGE"), shall be a
condition precedent to Buyer's obligation to purchase the Property
hereunder (the foregoing being herein called the "REQUIRED ESTOPPEL
STANDARD"). Each Tenant Estoppel Certificate shall (i) be substantially in
the form provided in Exhibit "C" attached hereto and made a part hereof,
(ii) be dated no earlier than thirty (30) days prior to Closing, (iii) have
not been modified in any manner which (1) adversely affects the monetary
obligations of landlord or tenant under any lease, (2) changes the term of
any lease, or (3) contains any other descriptions of terms and conditions
which are materially inconsistent with the actual terms and conditions of
the Leases, or (iv) alleges any breach or default by landlord under any
lease. Seller's sole obligation hereunder shall be to utilize commercially
reasonable efforts to obtain a Tenant Estoppel Certificate from each tenant
at the Property (such reasonable efforts obligations not including any
obligation to institute legal proceedings or to expend monies therefor),
but such obligation shall not affect the provision of such Tenant Estoppel
Certificates as a condition precedent to closing.
D. REPRESENTATIONS AND WARRANTIES. All representations and
warranties of Seller set forth in this Agreement shall be true and correct
on and as of the Closing Date in all material respects (notwithstanding the
fact that, with respect to representations and warranties made to the best
of Seller's knowledge, Seller had no knowledge of the untruth or inaccuracy
of the factual basis of such representations and warranties). Without
limitation thereon, the rent roll certification to be delivered by Seller
at Closing shall be made effective on and as of the Closing Date and, as a
condition to Buyer's obligations to close, such certification shall
disclose no changes in any material respect to the rent roll attached
hereto (other than changes permitted in or contemplated by this Agreement).
E. COVENANTS. All covenants of Seller under this Agreement
required to have been performed on or before the Closing Date shall have
been duly performed in all material respects.
F. REPRESENTATIONS AND WARRANTIES. All representations and
warranties of Buyer set forth in this Agreement shall be true and correct
on and as of the Closing Date in all material respects.
G. COVENANTS. All covenants of Buyer under this Agreement
required to have been performed on or before the Closing Date shall have
been duly performed in all material respects.
If any of the Buyer Conditions has not occurred or been satisfied in
accordance with the terms set forth herein, then Buyer shall have the right
to terminate this Agreement by written notice to Seller, in which event the
Escrow Deposit shall promptly be returned to Buyer and the obligations of
the parties hereto shall thereupon cease; provided, however, the foregoing
shall not release any party hereto from any liability which such party may
have hereunder by a reason of a default or breach by such party hereunder.
If any of the Seller Conditions has not occurred or been satisfied in
accordance with the terms set forth herein, then Seller shall have the
right to terminate this Agreement by written notice to Buyer, in which
event the Escrow Deposit shall promptly be delivered to Seller and the
obligations of the parties hereto shall thereupon cease; provided, however,
the foregoing shall not release any party hereto from any liability which
such party may have hereunder by a reason of a default or breach by such
party hereunder.
5. CLOSING PROCEDURE. The sale and purchase herein provided shall
be consummated (such consummation being herein called the "CLOSING") at a
closing conference ("CLOSING CONFERENCE"), which shall be held on the
Closing Date at Seller's offices at 000 Xxxxx Xxxxxxxx Xxxxxx, Xxxxxxx,
Xxxxxxxx. As used herein, "CLOSING DATE" means December 23, 1997;
provided, however, if any of the conditions to Closing set forth in this
Agreement is not satisfied on or before the Closing Date or if Buyer shall
claim that Seller is in default or has otherwise breached its obligations
under this Agreement, Seller shall have the right, at its sole option,
exercised by giving not less than three (3) business days prior written
notice, to extend the Closing Date for up to thirty (30) days in order to
attempt to satisfy such conditions or cure such defaults or breaches.
Notwithstanding the provisions of this Paragraph 5, either or both parties
may close through their own written escrow instructions consistent with the
terms of this Agreement and need not be present at Closing.
A. ESCROW. On or before the Closing Date, the parties shall
deliver to Title Company the following: (1) by Seller, a duly executed and
acknowledged original limited warranty deed ("DEED") in the form of Exhibit
"D" attached hereto and made a part hereof, and (2) by Buyer, the Closing
Payment in immediately available federal funds. Subject to either party's
right to elect to close through its own written escrow instruction, such
deliveries shall be made pursuant to escrow instructions ("ESCROW
INSTRUCTIONS") to be executed among Buyer, Seller and Title Company in form
reasonably acceptable to such parties in order to effectuate the intent
hereof. The conditions to the closing of such escrow shall include the
Title Company's receipt of the Deed, the Closing Payment and a written
notice from each of Buyer and Seller authorizing Title Company to close the
transactions as contemplated herein (each of Buyer and Seller being
obligated to deliver such authorization notice at Closing as soon as (1) it
is reasonably satisfied that the other party is in a position to deliver
the items to be delivered by such other party under subparagraph B below,
and (2) all of the conditions to a party's obligations hereunder have been
satisfied to such party's satisfaction or waived by such party in its sole
and absolute discretion).
B. DELIVERY TO PARTIES. Upon the satisfaction of the
conditions set forth in the Escrow Instructions, then (x) the Deed shall be
delivered to Buyer by Title Company's depositing the same for recordation,
(y) the Closing Payment (and the Escrow Deposit) shall be delivered by
Title Company to Seller and (z) at the Closing Conference, the following
items shall be delivered:
(1) SELLER DELIVERIES. Seller shall deliver to Buyer
the following:
(a) A duly executed and acknowledged xxxx of sale
and an assignment and assumption agreement ("ASSIGNMENT AND ASSUMPTION
AGREEMENT") in the form of Exhibit "E" attached hereto and made a part
hereof;
(b) Duly executed and acknowledged certificates
regarding the "non-foreign" status of Seller;
(c) Evidence reasonably satisfactory to Buyer and
Title Company respecting the due organization of Seller and the due
authorization and execution of this Agreement and the documents required to
be delivered hereunder;
(d) An affidavit or certificate certifying that
Seller is a resident of the State of Georgia (or deemed to be a resident)
for purposes of complying with O.C.G.A. 48-7-128, et seq. (Georgia
Withholding Tax), and is therefore not subject to withholding pursuant to
such section (or, if not applicable or is not complied with, Seller and the
Title Company shall otherwise comply with the applicable provisions of
O.C.G.A. 48-7-128, et seq.);
(e) Original (or copies to the extent originals
are not available) of all Leases and, to the extent in Seller's possession
or control, originals (or copies to the extent that originals are not
available) of all records, correspondence, plans, specifications, reports,
studies, easements, appurtenances, licenses, permits, certificates of
occupancy, approvals, dedications, entitlements, warranties, guaranties,
representations and other intangible property (the foregoing items deemed
delivered by Seller causing the same to be retained by the Property);
(f) All keys in Seller's possession or control
and, to the extent known to Seller, all combinations and other items and
information necessary for Buyer to have access to all portions of the
Property (the foregoing items deemed delivered by Seller causing the same
to be retained by the Property);
(g) A written notice to each of the tenants under
the Leases in the form and substance of EXHIBIT "J" attached hereto, each
duly executed by Seller (the "TENANT NOTICE LETTER");
(h) A certification by Seller of an updated rent
roll effective on and as of the date of Closing in the form of EXHIBIT "K"
attached hereto;
(i) Original $35,000 letter of credit provided
under the Transoft, Inc. lease, together with an assignment thereof by
Seller to Buyer;
(j) A closing statement; and
(k) Such additional documents as may be
reasonably required by Buyer and Title Company in order to consummate the
transactions hereunder (provided the same do not materially increase the
costs to, or liability or obligations of, Seller in a manner not otherwise
provided for herein).
(2) BUYER DELIVERIES. Buyer shall deliver to Seller
the following:
(a) A duly executed and acknowledged Assignment
and Assumption Agreement;
(b) The Tenant Notice Letter, duly executed by
Buyer;
(c) A closing statement;
(d) Evidence reasonably satisfactory to Seller
and Title Company respecting the due organization of Buyer and the due
authorization and execution of this Agreement and the documents required to
be delivered hereunder; and
(e) Such additional documents as may be
reasonably required by Seller and Title Company in or to consummate the
transactions hereunder (provided the same do not materially increase the
costs to, or liability or obligations of, Buyer in a manner not otherwise
provided for herein).
C. CLOSING COSTS. Seller shall pay (i) any real estate
transfer tax payable in connection with the Deed, and (ii) one-half of any
escrow charges. Buyer shall pay (i) all fees, costs and premium for the
Title Commitment and the Owner's Policy, together with the costs of the
survey, (ii) one-half of any escrow charges and (iii) all fees, costs or
expenses incurred by Buyer in connection with Buyer's due diligence reviews
hereunder (and all costs with respect to any financing which Buyer elects
to obtain). Each of Seller and Buyer shall pay its own attorneys' fees and
its respective share of prorations as hereinafter provided.
Notwithstanding the foregoing except as otherwise provided in this
Agreement, in the event the sale contemplated hereby does not close on the
Closing Date, then each party shall pay all costs incurred by it. All
other closing costs shall be paid in accordance with local custom.
D. PRORATIONS.
(1) ITEMS TO BE PRORATED. The following shall be
prorated between Seller and Buyer as of 11:59 p.m. on the day immediately
preceding the Closing Date:
(a) All real estate taxes and assessments on the
Property for the current year on a per diem basis based upon the most
recent assessed valuation and promulgated tax rate for the Property. In no
event shall Seller be charged with or be responsible for any increase in
the taxes on the Property resulting from any improvements made or leases
entered into on or after the Closing Date. If any assessments on the
Property are payable in installments, then the installment for the current
period shall be prorated (with Buyer assuming the obligation to pay any
installments due after the Closing Date).
(b) All fixed and additional rentals under the
leases, "Security Deposits" (defined below) and other tenant charges
actually paid by any tenant to Seller prior to Closing. Seller shall
deliver or provide a credit in an amount equal to all prepaid rentals for
periods after the Closing Date and all Security Deposits (to the extent the
foregoing are not applied or forfeited prior to the date which is two (2)
business days prior to the expiration of the Due Diligence Period (Seller
agreeing to give notice of any such application not later than two (2)
business days prior to expiration of the Due Diligence Period) to Buyer on
the Closing Date. Rents which are delinquent as of the Closing Date shall
not be prorated on the Closing Date. Buyer shall include such
delinquencies in its normal billing and shall pursue the collection thereof
in good faith after the Closing Date (but Buyer shall not be required to
litigate or declare a default in any Lease or otherwise commence any
landlord right or remedy under any Lease). To the extent Seller pursues
any delinquent rents Seller shall be entitled to retain any amounts
received by Seller with respect thereto. To the extent either Seller or
Buyer receives rents on or after the Closing Date (other than with respect
to delinquent rents as aforesaid), such payments shall be applied first
toward any reasonable third party costs of collection incurred by Buyer and
then toward any then current rent owed to Buyer in connection with the
applicable lease for which such payments are received, and any excess
monies received shall be applied toward the payment of any delinquent rents
in the inverse order of delinquency, with Seller's share thereof being
promptly delivered to Seller and Buyer's share promptly delivered to Buyer.
Buyer may not waive any delinquent rents nor modify a lease so as to reduce
or otherwise affect amounts owed thereunder for any period in which Seller
is entitled to receive a share of charges or amounts without first
obtaining Seller's written consent. Seller hereby reserves the right to
xxx any tenant owing delinquent rents and any other amounts to Seller for
damages (but Seller shall have no other right or remedy against any such
tenants with respect to delinquent rent. Buyer shall reasonably cooperate
with Seller in any collection efforts hereunder at Seller's sole cost and
expense (but shall not be required to litigate or declare a default in any
lease (or otherwise commence any landlord right or remedy under any Lease).
With respect to delinquent rents and any other amounts or other rights of
any kind respecting tenants who are no longer tenants of the Property as of
the Closing Date, Seller shall retain all rights relating thereto. To the
extent that any Lease provides for any adjustment of previously paid
estimated amounts of real estate tax or operating expense reimbursements on
a date subsequent to the Closing Date, Seller shall be entitled to receive,
or shall be responsible to pay (which obligation shall survive the
Closing), as the case may be (when such amounts are actually received or
payable by Buyer), Seller's pro rata share of any such adjusted amounts
that are applicable to periods ending prior to the Closing Date.
(c) All normal and customary operating expenses
(such expenses not including any tenant improvement costs or capital
expenditures).
(2) CALCULATION. The prorations and payments shall be
made on the basis of a written statement submitted to Buyer and Seller by
Escrow Holder prior to the Closing Date and approved by Buyer and Seller.
In the event any prorations or apportionments made under this
subparagraph D shall prove to be incorrect for any reason, then any party
shall be entitled to an adjustment to correct the same. Any item which
cannot be finally prorated because of (i) the unavailability of
information, or (ii) as of the Closing Date, a final tax xxxx has not been
issued for the Property for the year in which closing occurs, shall be
tentatively prorated at Closing on the basis of the best data then
available and reprorated when the final information and amounts are
available.
6. CONDEMNATION OR DESTRUCTION OF PROPERTY. In the event that,
after the date hereof but prior to the Closing Date, either any portion of
the Property is taken pursuant to eminent domain proceedings or any of the
improvements on the Property are damaged or destroyed by any casualty,
Seller shall have no obligation to repair or replace any such damage or
destruction. Seller shall, upon consummation of the transaction herein
provided, (i) assign to Buyer all claims of Seller respecting any
condemnation or casualty insurance coverage, as applicable, and all
condemnation proceeds or proceeds from any such casualty insurance received
by Seller on account of any casualty (the damage from which shall not have
been repaired by Seller prior to the Closing Date), as applicable;
provided, however, that Seller shall retain any proceeds received (and the
right to receive any proceeds) of rental income insurance or a temporary
taking award that are attributable to a period prior to the Closing Date,
and (ii) credit Buyer with a reduction of the Purchase Price in an amount
equal to any deductible amount in connection with Seller's casualty
insurance. Notwithstanding the foregoing, in the event any portion of the
Property is taken pursuant to eminent domain proceedings or the cost of
repair of damage to the Property on account of a casualty, as applicable,
shall exceed $250,000, Buyer may, at its option, terminate this Agreement
by notice to Seller, given on or before the Closing Date. In the event of
any such termination, the Escrow Deposit shall promptly be refunded to
Buyer and the obligations of the parties hereunder shall terminate.
7. REPRESENTATIONS, WARRANTIES AND COVENANTS.
A. REPRESENTATIONS, WARRANTIES AND COVENANTS OF SELLER.
(1) GENERAL DISCLAIMER. Except as specifically set
forth in this Agreement or in the Closing documents, the sale of the
Property hereunder is and will be made on an "as is, where is, with all
faults" basis, without representations and warranties of any kind or
nature, express, implied or otherwise, including, but not limited to, any
representation or warranty concerning title to the Property, the physical
condition of the Property (including, but not limited to, the condition of
the soil or the Improvements), the environmental condition of the Property
(including, but not limited to, the presence or absence of hazardous
substances on or respecting the Property), the compliance of the Property
with applicable laws and regulations (including, but not limited to, zoning
and building codes or the status of development or use rights respecting
the Property), the financial condition of the Property or any other
representation or warranty respecting any income, expenses, charges, liens
or encumbrances, rights or claims on, affecting or pertaining to the
Property or any part thereof. Buyer acknowledges that, during the Due
Diligence Period, Buyer will examine, review and inspect all matters which
in Buyer's judgment bear upon the Property and its value and suitability
for Buyer's purposes. Except as to matters specifically set forth in this
Agreement, Buyer will acquire the Property solely on the basis of its own
physical and financial examinations, reviews and inspections and the title
insurance protection afforded by the Owner's Policy. Without limitation
thereon, Buyer hereby waives any and all rights of contribution or other
rights or remedies against Seller under the Comprehensive Environmental
Response Compensation and Liability Act or any other applicable
environmental laws, rules or regulations.
(2) LIMITED REPRESENTATIONS AND WARRANTIES OF SELLER.
Subject to the provisions of Paragraph 7A(1) above, Seller hereby
represents and warrants that, except as set forth in Exhibit "F" attached
hereto and made a part hereof, Seller has no knowledge that any of the
following statements is untrue (and, for this purpose, Seller's knowledge
shall mean only the present actual knowledge of Xxxxx Xxxxxxx, after
speaking to Seller's on-site third party property manager after such party
has reviewed the representations and warranties contained herein, but
otherwise without any duty to investigate and with any imputed or
constructive knowledge being excluded):
(a) RENT ROLL. Attached as Exhibit "G" and made
a part hereof is a true, complete and accurate list, as of the date
thereof, of all tenant leases or other occupancy agreements (including any
and all amendments thereto) respecting the Property, and Seller has not
received any written notice of a material default under any of such tenant
leases that remains uncured. Notwithstanding anything to the contrary
contained herein, Seller shall have no obligation or liability to Buyer
with respect to any of the foregoing matters which shall be confirmed as
correct in any Tenant Estoppel Certificate which may be delivered
hereunder.
(b) LITIGATION. There is no pending action,
litigation, condemnation or other proceeding against the Property or
against Seller with respect to the Property.
(c) COMPLIANCE. Seller has received no written
notice from any governmental authority having jurisdiction over the
Property to the effect that the Property is not in compliance with
applicable laws and ordinances.
(d) SERVICE AND ROOFTOP AGREEMENTS. Seller has
not entered into any service agreements or contracts or other agreements
relating to the Property which will be in force on the Closing Date, except
for the service agreements ("SERVICE AGREEMENTS") described in
Exhibit "H-1" attached hereto, and the rooftop agreements described in
Exhibit "H-2" attached hereto ("ROOFTOP AGREEMENTS") and Seller has not
received any written notice of any default thereunder that remains uncured.
(e) DUE AUTHORITY. This Agreement and all
agreements, instruments and documents herein provided to be executed or to
be caused to be executed by Seller are and on the Closing Date will be duly
authorized, executed and delivered by and are binding upon Seller. Seller
is a partnership, duly organized and validly existing under the laws of the
State of Illinois, and is duly authorized and qualified to do all things
required of it under this Agreement. Seller has the capacity and authority
to enter into this Agreement and consummate the transactions herein
provided.
(f) ENVIRONMENTAL MATTERS. Except as set forth
in the reports described in Exhibit "I" attached hereto and made a part
hereof (the "ENVIRONMENTAL REPORTS"), copies of which have been delivered
to Buyer, Seller has received no written notice of the existence, deposit,
storage, removal, burial or discharge of any "Hazardous Material" at, upon,
under, within or adjacent to the Property, in an amount in excess of those
amounts permitted by applicable environmental laws. The term "HAZARDOUS
MATERIAL" shall mean (i) asbestos and any chemicals, flammable substances
or explosives, any radioactive materials (including radon), any hazardous
wastes or substances which have, as of the date hereof, been determined by
any applicable Federal, State or local government law to be hazardous or
toxic by the U.S. Environmental Protection Agency, the U.S. Department of
Transportation, and/or any instrumentality now or hereafter authorized to
regulate materials and substances in the environment which has jurisdiction
over the Property ("ENVIRONMENTAL AGENCY"), and (ii) any oil, petroleum or
petroleum derived substance, any drilling fluids, produced waters and other
wastes associated with the exploration, development or production of crude
oil, which materials listed under items (i) and (ii) above cause the
Property (or any part thereof) to be in violation of any applicable
environmental laws or the regulations of any Environmental Agency;
provided, however, that the term "Hazardous Material" shall not include the
"EXCLUDED MATERIALS." As used herein, "Excluded Materials" means materials
(i) other than asbestos or asbestos-containing materials, whose storage,
disposal or presence on, in or under any part of the Property does not
constitute a violation of applicable environmental laws, or (ii) which may
be present in (a) paints (other than lead-based paints), glues, fuels,
photocopy equipment supplies, janitorial supplies, cleaning agents and
solvents, or (b) inventory held for sale at retail by tenants or (iii) in
quantities commonly stored, found or maintained for similar uses in office
buildings of a similar nature.
(g) UNITED STATES PERSON. Seller is a "United States
person" within the meaning of Sections 1445(f)(3) and 7701(a)(30) of the
Internal Revenue Code of 1986, as amended.
(h) OPTIONS. Seller has not entered into any contracts
for the sale of, and no person or entity has any option or any other rights
to purchase, all or any portion of the Property.
(i) LEASES.
(1) DEFAULTS. Seller is not in default in the
payment of any amounts due or in the performance of any obligations under
the Leases.
(2) PREPAYMENTS. No tenant under any of the
Leases has paid any amounts payable under the Leases more than 30 days
before such amounts are due, except as otherwise shown on EXHIBIT L.
(3) OWNERSHIP. Seller has not assigned, pledged,
encumbered or otherwise hypothecated any right to collect rent or other
amounts payable under the Leases to any other person, which will remain in
effect after the Closing.
(4) IMPROVEMENTS. Except for the Blackstone &
Cullen Lease renewal (as discussed in paragraph 7D(3) hereof), all
alterations, improvements, repairs and other work required to be performed
by Seller or any landlord under the Leases have been completed and fully
paid for.
(5) SECURITY DEPOSITS. The total unapplied
amount of refundable security and similar deposits made by each of the
tenants under the Leases ("SECURITY DEPOSITS") as of the date hereof is set
forth on EXHIBIT "M" attached hereto.
(6) COMMISSIONS. Except as set forth on EXHIBIT
"N" attached hereto, there are no commissions which are payable, now or in
the future, to any persons or entities in connection with the Leases,
including without limitation, commissions with respect to any renewals,
extensions and expansions whether or not pursuant to options under the
Leases, and whether or not such options have been exercised.
B. REPRESENTATIONS AND WARRANTIES OF BUYER. Buyer hereby
represents and warrants that this Agreement and all agreements, instruments
and documents herein provided to be executed or to be caused to be executed
by Buyer are and on the Closing Date will be duly authorized, executed and
delivered by and are binding upon Buyer; Buyer is a limited partnership,
duly organized and validly existing and in good standing under the laws of
the State of Illinois, and is duly authorized and qualified to do all
things required of it under this Agreement; and Buyer has the capacity and
authority to enter into this Agreement and consummate the transactions
herein provided.
C. SURVIVAL. Any cause of action of a party for a breach of
the representations and warranties set forth in this Agreement shall
survive until six (6) months after the Closing Date (the "Survival
Period"), at which time such representations and warranties (and any cause
of action not then in litigation) shall terminate. Notwithstanding the
foregoing, if Buyer shall have actual knowledge as of the Closing Date that
any of the representations or warranties of Seller contained herein are
false or inaccurate or that Seller is in breach or default of any of its
obligations under this Agreement, and Buyer nonetheless closes the
transactions hereunder and acquires the Property, then Seller shall have no
liability or obligation respecting such false or inaccurate representations
or warranties or other breach or default (and any cause of action resulting
therefrom shall terminate upon such closing hereunder).
D. INTERIM COVENANTS OF SELLER. Until the Closing Date or
the sooner termination of this Agreement:
(1) Seller shall maintain the Property in the same
manner as prior hereto pursuant to its normal course of business (such
maintenance obligations not including extraordinary capital expenditures or
expenditures not incurred in such normal course of business), subject to
reasonable wear and tear and further subject to destruction by casualty.
(2) Seller shall not enter into any additional service
contracts or other similar agreements which will affect the Property after
the Closing Date without the prior consent of Buyer, except those deemed
reasonably necessary by Seller which are cancelable on 30 days notice.
(3) Seller shall have the right to continue to offer
the Property for lease in the same manner as prior hereto pursuant to its
normal course of business and shall keep Buyer reasonably informed as to
the status of leasing prior to the Closing Date. From the Effective Date
until the expiration of the Due Diligence Period or earlier termination of
this Agreement, Seller covenants that it will not: (i) renew any Leases
expiring on or before the Closing, or (ii) enter into any new lease, or
(iii) enter into any material modification or amendment of, or terminate
any Lease in existence as of the date of this Agreement, unless Seller
obtains the prior written consent of Buyer, which consent shall not be
unreasonably withheld or delayed. After the expiration of the Due
Diligence Period (unless Buyer shall have theretofore delivered a
Termination Notice hereunder), Seller shall not: (i) renew any Leases
expiring on or before the Closing, or (ii) enter into any new lease, or
(iii) enter into any modification or amendment of, or terminate any Lease
in existence as of the date of this Agreement without the prior written
consent of Buyer (which consent shall be in Buyer's sole and absolute
discretion). In no event shall Seller have any obligation to enter into
any new lease or modify any existing lease unless Buyer shall agree to pay
or reimburse Seller on the Closing Date for all tenant improvement costs
and leasing commissions incurred by Seller under or in connection therewith
(Buyer having the right to approve or disapprove of the same in its sole
discretion). In furtherance of the foregoing, if Seller desires to
(i) renew any Leases expiring on or before the Closing, or (ii) enter into
any new lease, or (iii) enter into any modification or amendment of any
Lease in existence as of the date of this Agreement, Seller shall deliver
to Buyer a written itemization of the concessions, tenant improvement costs
to be paid by Buyer, leasing commissions and other costs associated with
any of the foregoing at the same time as Seller requests Buyer's consent
thereto. Within five (5) business days of Buyer's receipt of the foregoing
information, Buyer shall notify Seller whether Buyer approves or
disapproves the leasing related action proposed by Seller. If Buyer fails
to respond to Seller within such five (5) business day period, Buyer shall
be deemed to have approved the leasing related action proposed by Seller.
If Buyer approves (or is deemed to have approved) the leasing related
action proposed by Seller, Buyer shall pay the concessions, tenant
improvement costs, leasing commissions and other costs associated with any
of the foregoing, to the extent all such amounts were disclosed to Buyer in
writing prior to Buyer's approval (or deemed approval) of such proposed
leasing action. Buyer hereby acknowledges that Buyer has approved the
South Trust Bank expansion proposal and the Blackstone & Cullen lease
renewal (each of which is reflected in the Rent Roll), and Buyer shall pay
for the foregoing costs associated therewith.
(4) Seller shall deliver to Buyer copies of all written
notices and demands delivered or received by Seller in connection with the
Leases or otherwise relating to the Property and affecting the transactions
contemplated in this Agreement.
(5) Seller shall not convey any interest or option in
the Property, or any part thereof, or place any liens or encumbrances
against the Property or subject the Property to any declarations of
covenants, conditions and restrictions (or the like) except to the extent
required by law or by existing agreements affecting the Property (to the
extent the same are delivered to Buyer prior to the end of the Due
Diligence Period).
(6) Except for alterations that are specifically
required under any of the Leases or by applicable law, Seller shall not
make any material alterations to the Property without obtaining the prior
written consent of Buyer, which consent shall not be unreasonably withheld
or delayed.
(7) Seller covenants and agrees that it shall cause any
management and leasing contracts affecting the Property to be terminated,
effective on or before the Closing Date.
8. DISPOSITION OF DEPOSIT. IF THE TRANSACTION HEREIN PROVIDED
SHALL NOT BE CLOSED BY REASON OF SELLER'S DEFAULT UNDER THIS AGREEMENT OR
THE FAILURE OF SATISFACTION OF THE CONDITIONS DESCRIBED IN PARAGRAPH 4
HEREOF OR THE TERMINATION OF THIS AGREEMENT IN ACCORDANCE WITH PARAGRAPH 6
HEREOF, OR FOR ANY OTHER REASON EXCEPT DEFAULT OF BUYER, THEN THE ESCROW
DEPOSIT SHALL BE RETURNED TO BUYER, AND NEITHER PARTY SHALL HAVE ANY
FURTHER OBLIGATION OR LIABILITY TO THE OTHER; PROVIDED, HOWEVER, IF THE
TRANSACTIONS HEREUNDER SHALL FAIL TO CLOSE SOLELY BY REASON OF SELLER'S
DEFAULT, AND BUYER SHALL HAVE FULLY PERFORMED ITS OBLIGATIONS HEREUNDER AND
SHALL BE READY, WILLING AND ABLE TO CLOSE, THEN BUYER SHALL BE ENTITLED TO
SPECIFICALLY ENFORCE THIS AGREEMENT; AND PROVIDED FURTHER HOWEVER, IF IN
SUCH EVENT SELLER SHALL WILLFULLY TAKE ACTIONS SO AS TO PREVENT THE
AVAILABILITY OF SPECIFIC PERFORMANCE TO BUYER, AND THE OTHER CONDITIONS SET
FORTH ABOVE SHALL BE SATISFIED, BUYER SHALL BE ENTITLED TO A RETURN OF THE
ESCROW DEPOSIT AND REIMBURSEMENT OF ITS ACTUAL OUT-OF-POCKET COSTS PAID TO
THIRD PARTIES IN CONNECTION WITH THE TRANSACTIONS HEREUNDER (SUCH
REIMBURSEMENT NOT TO EXCEED $75,000 IN THE AGGREGATE). EXCEPT AS SET FORTH
ABOVE, NO OTHER ACTIONS, FOR DAMAGES OR OTHERWISE, SHALL BE PERMITTED IN
CONNECTION WITH ANY DEFAULT BY SELLER. IN THE EVENT THE TRANSACTION HEREIN
PROVIDED SHALL NOT CLOSE SOLELY BECAUSE OF BUYER'S DEFAULT UNDER THIS
AGREEMENT, THEN THE ESCROW DEPOSIT SHALL BE DELIVERED TO SELLER AS FULL
COMPENSATION AND LIQUIDATED DAMAGES UNDER AND IN CONNECTION WITH THIS
AGREEMENT. IN THE EVENT THE TRANSACTION HEREIN PROVIDED SHALL CLOSE, THE
ESCROW DEPOSIT SHALL BE APPLIED AS A PARTIAL PAYMENT OF THE PURCHASE PRICE.
IN CONNECTION WITH THE FOREGOING, THE PARTIES RECOGNIZE THAT SELLER WILL
INCUR EXPENSE IN CONNECTION WITH THE TRANSACTION CONTEMPLATED BY THIS
AGREEMENT AND THAT THE PROPERTY WILL BE REMOVED FROM THE MARKET; FURTHER,
THAT IT IS EXTREMELY DIFFICULT AND IMPRACTICABLE TO ASCERTAIN THE EXTENT OF
DETRIMENT TO SELLER CAUSED BY THE BREACH OF BUYER UNDER THIS AGREEMENT AND
THE FAILURE OF THE CONSUMMATION OF THE TRANSACTION CONTEMPLATED BY THIS
AGREEMENT OR THE AMOUNT OF COMPENSATION SELLER SHOULD RECEIVE AS A RESULT
OF BUYER'S BREACH OR DEFAULT OR WRONGFUL REFUSAL TO CLOSE, THE ESCROW
DEPOSIT BEING A REASONABLE ESTIMATE OF THE DAMAGES WHICH WOULD BE INCURRED
BY SELLER. IN THE EVENT THE SALE OF THE PROPERTY SHALL NOT BE CONSUMMATED
ON ACCOUNT OF BUYER'S WRONGFUL REFUSAL TO CLOSE, THEN THE RETENTION OF THE
ESCROW DEPOSIT SHALL BE SELLER'S SOLE AND EXCLUSIVE REMEDY UNDER THIS
AGREEMENT BY REASON OF SUCH DEFAULT WRONGFUL REFUSAL TO CLOSE, SUBJECT TO
THE PROVISIONS OF PARAGRAPH 9I HEREOF. THE PARTIES AGREE THAT PRIOR TO
EITHER PARTY MAKING A CLAIM UNDER THIS PARAGRAPH 8 BASED ON A DEFAULT BY
THE OTHER PARTY, SUCH DEFAULTING PARTY SHALL HAVE THE SOONER TO OCCUR OF
(A) THREE (3) BUSINESS DAYS AFTER NOTICE THEREOF OR (B) THE CLOSING DATE
WITHIN WHICH TO CURE SUCH DEFAULT (IT BEING UNDERSTOOD THAT THE CLOSING
DATE SHALL NOT BE EXTENDED TO ACCOMMODATE ANY SUCH CURE).
______________________ ______________________
SELLER'S INITIALS BUYER'S INITIALS
9. MISCELLANEOUS.
A. BROKERS.
(1) Except as provided in subparagraph (2) below,
Seller represents and warrants to Buyer, and Buyer represents and warrants
to Seller, that no broker or finder has been engaged by it, respectively,
in connection with any of the transactions contemplated by this Agreement
or to its knowledge is in any way connected with any of such transactions.
In the event of a claim for broker's or finder's fee or commissions in
connection herewith, then Seller shall indemnify and defend Buyer from the
same if it shall be based upon any statement or agreement alleged to have
been made by Seller, and Buyer shall indemnify and defend Seller from the
same (other than claims of "Broker", as defined below) if it shall be based
upon any statement or agreement alleged to have been made by Buyer. The
indemnification obligations under this Paragraph 9A shall survive the
closing of the transactions hereunder or the earlier termination of this
Agreement.
(2) If and only if the sale contemplated herein closes,
Seller agrees to pay a brokerage commission to Xxxxxxx Xxxxx, LLC (the
"BROKER") pursuant to a separate written agreement between Seller and
Broker. Buyer shall have no liability or obligation for any commissions
which may be owed to the Broker.
B. LIMITATION OF LIABILITY.
(1) Notwithstanding anything to the contrary contained
herein, if the closing of the transactions hereunder shall have occurred
(and Buyer shall not have waived, relinquished or released any applicable
rights in further limitation), the aggregate liability of Seller arising
pursuant to or in connection with the representations warranties,
indemnifications, covenants or other obligations (whether express or
implied) of Seller under this Agreement (or any document executed or
delivered in connection herewith) or which are otherwise related to the
Property shall not exceed $500,000; provided, that the foregoing $500,000
limitation shall not apply to any prorations, reprorations, adjustments to
prorations or adjustments to reprorations made between Buyer and Seller
under Section 5D of this Agreement.
(2) Seller shall retain reserves of at least $500,000
at the time of closing hereunder and, until the expiration of the Survival
Period, Seller shall not distribute the same to its partners but shall only
utilize such retained funds for the payment of claims, expenses,
liabilities or attorneys' fees of Seller (including any amounts incurred in
connection with resolving or defending any claim of liability hereunder)
with respect to a breach or alleged breach of the representations,
warranties, indemnifications, covenants or other obligations (whether
express or implied) of Seller under this Agreement (or any document
executed or delivered in connection herewith) or which otherwise relate to
the Property (the foregoing being herein collectively called the "SPECIFIED
LIABILITIES").
(3) Notwithstanding the foregoing, (i) if Seller or a
liquidating trust or other similar successor-in-interest established by
Seller shall fail to retain reserves of at least $500,000 at the time of
closing hereunder or (ii) if during the Survival Period, Seller (or such
successor-in-interest as aforesaid) shall utilize such reserves for any
purpose other than the payment of the Specified Liabilities, then subject
to the terms and conditions of this Agreement, Buyer may, during the
Survival Period, look to the assets of JMB Realty Corporation, as the
general partner of Seller, for the payment of any Specified Liabilities;
provided, however, the aggregate liability of JMB Realty Corporation in
connection therewith shall not exceed $500,000 in the aggregate and shall
be further limited as follows:
(i) with respect to the initial reserve amount,
such liability shall be limited to the lesser of the amount by which
$500,000 exceeds the amount actually reserved by Seller or its successor-
in-interest at closing hereunder, and $500,000 ; or
(ii) during the Survival Period, such liability
shall be limited to the lesser of the amount of such reserves which, during
the Survival Period, are utilized for purposes other than the payment of
the Specified Liabilities, and $500,000.
(4) No constituent partner in or agent of Seller, nor
any advisor, trustee, director, officer, employee, beneficiary,
shareholder, participant, representative or agent of any corporation or
trust that is or becomes a constituent partner in Seller (including, but
not limited to, JMB Realty Corporation and the individual(s) listed in
Paragraph 7A(2) hereof) shall have any personal liability, directly or
indirectly, under or in connection with this Agreement or any agreement
made or entered into under or pursuant to the provisions of this Agreement,
or any amendment or amendments to any of the foregoing made at any time or
times, heretofore or hereafter, and Buyer and its successors and assigns
and, without limitation, all other persons and entities, shall look solely
to Seller's assets for the payment of any claim or for any performance, and
Buyer, on behalf of itself and its successors and assigns, hereby waives
any and all such personal liability. Notwithstanding anything to the
contrary contained in this Agreement, neither the negative capital account
of any constituent partner in Seller (or in any other constituent partner
of Seller), nor any obligation of any constituent partner in Seller (or in
any other constituent partner of Seller) to restore a negative capital
account or to contribute capital to Seller (or to any other constituent
partner of Seller), shall at any time be deemed to be the property or an
asset of Seller or any such other constituent partner (and neither Buyer
nor any of its successors or assigns shall have any right to collect,
enforce or proceed against or with respect to any such negative capital
account of partner's obligation to restore or contribute).
C. ENTIRE AGREEMENT. This Agreement and the exhibits
attached hereto contains the entire agreement between the parties
respecting the matters herein set forth and supersedes all prior agreements
between the parties hereto respecting such matters. This Agreement may not
be modified or amended except by written agreement signed by both parties.
D. TIME OF THE ESSENCE. Time is of the essence of this
Agreement.
E. INTERPRETATION. Paragraph headings shall not be used in
construing this Agreement. Each party acknowledges that such party and its
counsel, after negotiation and consultation, have reviewed and revised this
Agreement. As such, the terms of this Agreement shall be fairly construed
and the usual rule of construction, to the effect that any ambiguities
herein should be resolved against the drafting party, shall not be employed
in the interpretation of this Agreement or any amendments, modifications or
exhibits hereto or thereto.
F. GOVERNING LAW. This Agreement shall be construed and
enforced in accordance with the laws of the State of Georgia.
G. SUCCESSORS AND ASSIGNS. Buyer may not assign or transfer
its rights or obligations under this Agreement without the prior written
consent of Seller (in which event such transferee shall assume in writing
all of the transferor's obligations hereunder, but such transferor shall
not be released from its obligations hereunder); provided, however, Buyer
may assign its interest in this Agreement without the prior written consent
of Seller to an entity controlling, controlled by or under common control
with CMD XXXX III, Inc., CMD Corporation or CMD Realty Investors, Inc.
either directly or through one or more subsidiaries or affiliates. For
purposes of this Paragraph, "CONTROL" means the ability to make all
material managerial decisions in the ordinary course of business on behalf
of the entity. No consent given by Seller to any transfer or assignment of
Buyer's rights or obligations hereunder shall be construed as a consent to
any other transfer or assignment of Buyer's rights or obligations
hereunder. No transfer or assignment in violation of the provisions hereof
shall be valid or enforceable. Subject to the foregoing, this Agreement
and the terms and provisions hereof shall inure to the benefit of and be
binding upon the successors and assigns of the parties.
H. NOTICES. Any notice which a party is required or may
desire to give the other shall be in writing and shall be sent by personal
delivery or by mail (either [i] by United States registered or certified
mail, return receipt requested, postage prepaid, or [ii] by Federal Express
or similar generally recognized overnight carrier regularly providing proof
of delivery) or by facsimile, addressed as follows (subject to the right of
a party to designate a different address for itself by notice similarly
given):
To Buyer:
--------
c/o CMD Realty Investors, Inc.
000 Xxxx Xxxxxxx Xxxxx Xxxx, Xxxxx 000
Xxxx Xxxxxxxxxx, Xxxxxxx 00000-0000
Attention: Xx. Xxxx X. Xxxxxxxxx
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
With Copy To:
------------
CMD Realty Investors, Inc.
000 Xxxx Xxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx X. Xxxxx, Esq.
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
With Copy To:
------------
Barrack Xxxxxxxxxx Xxxxxxxxxx Xxxxxxx & Xxxxxxxxx
000 Xxxx Xxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx X. Xxxx, Esq.
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
To Seller:
---------
c/o JMB Realty Corporation
000 Xxxxx Xxxxxxxx Xxxxxx
00xx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Mr. Xxxxx Xxxxxxx
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
With Copy To:
------------
Pircher, Xxxxxxx & Xxxxx
1999 Avenue of the Stars
Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Real Estate Notices (GML)
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
And To:
------
Xxxxxxx Xxxxx, LLC
Three First Xxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xx. Xxxxxxx Xxxxxxx
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
Any notice so given by mail shall be deemed to have been given as of the
date of delivery (whether accepted or refused) established by U.S. Post
Office return receipt or the overnight carrier's proof of delivery, as the
case may be. Any such notice not given by mail shall be deemed given upon
receipt or refusal of receipt of the same by the party to whom the same is
to be given (which, in the case of facsimile delivery, shall be established
by machine generated facsimile indication of transmission).
I. LEGAL COSTS. The parties hereto agree that they shall
pay directly any and all legal costs which they have incurred on their own
behalf in the preparation of this Agreement, all deeds and other agreements
pertaining to this transaction and that such legal costs shall not be part
of the closing costs. In addition, if either Buyer or Seller brings any
suit or other proceeding with respect to the subject matter or the
enforcement of this Agreement, the prevailing party (as determined by the
court, agency or other authority before which such suit or proceeding is
commenced), in addition to such other relief as may be awarded, shall be
entitled to recover reasonable attorneys' fees, expenses and costs of
investigation actually incurred. The foregoing includes, but is not
limited to, attorneys' fees, expenses and costs of investigation
(including, without limitation, those incurred in appellate proceedings),
costs incurred in establishing the right to indemnification, or in any
action or participation in, or in connection with, any case or proceeding
under Chapter 7, 11 or 13 of the Bankruptcy Code (11 United States Code
Sections 101 et seq.), or any successor statutes.
J. COUNTERPARTS. This Agreement may be executed in one or
more counterparts, each of which shall be deemed an original, but all of
which shall constitute one and the same document.
K. FURTHER ASSURANCES. Each party agrees that it will
without further consideration execute and deliver such other documents and
take such other action, whether prior or subsequent to the Closing, as may
be reasonably requested by the other party to consummate more effectively
the purposes or subject matter of this Agreement; provided, however, that
neither Seller nor Buyer shall be obligated to incur any obligations or
material expenses except as otherwise required hereunder. Without limiting
the generality of the foregoing, Seller shall provide reasonable assistance
to Buyer, at Buyer's expense, in connection with the preparation of
financial statements and bills, including, without limitation, at Buyer's
sole cost and expense, audited income and expense statements prepared by or
on behalf of Buyer in accordance with generally accepted accounting
principles consistently applied with respect to the Property for calendar
year 1997. The provisions of this Paragraph shall survive the Closing.
L. POST CLOSING REMEDIES. Notwithstanding anything to the
contrary contained herein, in the event the Closing occurs and there has
been, or is in the future, any breach by Seller or Buyer of any
representations, indemnities, warranties, covenants or agreements contained
herein, then subject to the other limitations herein, the limitations
contained in Paragraph 8 hereof shall not be applicable to the rights and
remedies of Buyer or Seller pursuant to this Paragraph 9(L).
M. FACSIMILE SIGNATURES. Buyer and Seller hereby agree that
signatures by facsimile shall be binding for purposes of this Agreement to
the same extent as original signatures.
N. WEEKENDS AND HOLIDAYS. Buyer and Seller hereby agree
that when a date upon which a specified event shall occur or be performed
hereunder falls upon a weekend or holiday, the time allowed for the event
or performance to occur shall be automatically extended to the next
succeeding business day.
THE SUBMISSION OF THIS AGREEMENT FOR EXAMINATION IS NOT INTENDED TO
NOR SHALL CONSTITUTE AN OFFER TO SELL, OR A RESERVATION OF, OR OPTION OR
PROPOSAL OF ANY KIND FOR THE PURCHASE OF THE PROPERTY. IN NO EVENT SHALL
ANY DRAFT OF THIS AGREEMENT CREATE ANY OBLIGATION OR LIABILITY, IT BEING
UNDERSTOOD THAT THIS AGREEMENT SHALL BE EFFECTIVE AND BINDING ONLY WHEN A
COUNTERPART HEREOF HAS BEEN EXECUTED AND DELIVERED BY EACH PARTY HERETO TO
THE OTHER (AND SUCH DATE SHALL BE THE "EFFECTIVE DATE" FOR PURPOSES
HEREOF).
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
as of the Effective Date.
SELLER:
------
CARLYLE REAL ESTATE LIMITED
PARTNERSHIP-XV,
an Illinois limited partnership,
General Partner
By: JMB REALTY CORPORATION,
a Delaware corporation,
General Partner
By: _______________________________
Name: _______________________
Title: ________________________
BUYER:
-----
CMD REALTY INVESTMENT FUND III, L.P.,
an Illinois limited partnership
By: CMD/FUND III GP INVESTMENTS, L.P.
an Illinois limited partnership,
its general partner
By: CMD XXXX III, INC.,
an Illinois corporation
By: ________________________________
Name: __________________________
Title: _________________________
EXHIBIT LIST
------------
"A" - Property Description
"B" - Personal Property
"C" - Form of Tenant Estoppel Certificate
"D" - Deed
"E" - Assignment and Assumption Agreement
"F" - Exceptions to Seller's Representations
and Warranties
"G" - Rent Roll
"H-1" - Service Agreements
"H-2" - Rooftop Agreements
"I" - Environmental Reports
"J" - Tenant Notice Letter
"K" - Closing Rent Roll Certification
"L" - Prepaid Rentals
"M" - Security Deposits
"N" - Lease Commissions
EXHIBIT "A"
PROPERTY DESCRIPTION
--------------------
ALL THAT CERTAIN LAND SITUATED IN THE STATE OF GEORGIA, DISTRICT OF
XXXXXX COUNTY, DESCRIBED AS FOLLOWS:
EXHIBIT "B"
PERSONAL PROPERTY
-----------------
EXHIBIT "C"
FORM OF TENANT ESTOPPEL CERTIFICATE
-----------------------------------
TENANT ESTOPPEL CERTIFICATE
(RIVEREDGE PLACE)
CMD Realty Investment Fund III, L.P.
c/o CMD Realty Investors, Inc.
000 Xxxx Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Ladies and Gentlemen:
[INSERT NAME OF TENANT] ("Tenant") acknowledges that (a) Carlyle Real
Estate Limited Partnership - XV ("Landlord") has entered into an agreement
with CMD Realty Investment Fund III, L.P. ("Purchaser"), for the sale and
purchase of a building commonly known as RiverEdge Place and located at
0000 XxxxxXxxx Xxxxxxx, Xxxxxxx, Xxxxxxx (the "Building"), (b) Landlord has
requested Tenant to execute and deliver this Tenant Estoppel Certificate to
Purchaser, and (c) Purchaser, its successors and assigns, and Xxxxx Fargo
Bank, National Association, its successors and assigns, will rely upon the
certifications by Tenant in this Tenant Estoppel Certificate in connection
with the purchase of the Building.
Tenant hereby certifies as follows:
1. Tenant currently leases in the Building the premises
("Premises") listed in Paragraph 2 of Exhibit A attached hereto, pursuant
to the terms and conditions of (a) the lease dated as of the date listed in
Paragraph 3 of Exhibit A attached hereto, between Landlord and Tenant, and
(b) the additional lease documents listed in Paragraph 4 of Exhibit A
attached hereto, if any, (collectively, the "Lease"). Except for the
Lease, there are no agreements or documents which are binding on Landlord
in connection with the lease of the Premises. The Lease is valid, binding
and in full force and effect, and has not been modified or amended in any
manner whatsoever.
2. The term of the lease of the Premises and the Lease is the
period which commenced on the date listed in Paragraph 5 of Exhibit A
attached hereto and ends on the date listed in Paragraph 6 of Exhibit A
attached hereto, subject to any rights of Tenant to extend the term
expressly set forth in the Lease. Tenant has no rights to extend the term
of the lease of the Premises or the Lease except to the extent expressly
set forth in the Lease.
3. Landlord has delivered possession of the Premises to Tenant,
and Tenant has accepted possession of, and currently occupies, the
Premises. The Premises were at the time of delivery of possession and are
currently in good order and repair, and Tenant has no claims against
Landlord with respect to the condition of the Premises or the Building.
4. The current monthly base rent payable under the Lease is as
listed in Paragraph 7 of Exhibit A attached hereto, and the current monthly
payment payable under the Lease on account of taxes and operating expenses
payable under the Lease is as listed in Paragraph 8 of Exhibit A attached
hereto. Rent and all other charges payable under the Lease on or before
the date hereof have been paid. No amounts of monthly base rent payable
under the Lease have been prepaid except through the end of the current
calendar month, and no amounts of any other charges payable under the Lease
have been prepaid for any period.
5. Tenant has no options, rights of offer, rights of refusal or
other rights to purchase all or any portion of the Building, expand the
Premises or lease any other premises in the Building, except to the extent
expressly set forth in the Lease.
6. All improvements and repairs required to be made by Landlord
have been completed, and all allowances, reimbursements or other
obligations of Landlord for the payment of monies to or for the benefit of
Tenant have been fully paid, all in accordance with the terms of the Lease.
7. Neither Landlord nor Tenant is in default in the performance of
any covenant, agreement or condition contained in the Lease, and no event
has occurred and no condition exists which, with the giving of notice or
the lapse of time, or both, would constitute a default by any party under
the Lease. Tenant has no defenses, counterclaims, liens or claim of offset
or credit under the Lease or against rents, or any other claims against
Landlord.
8. Tenant is not the subject of any bankruptcy, insolvency or
similar proceeding in any federal, state or other court of jurisdiction.
9. Tenant has not subleased any portion of the Premises or
assigned any of its rights under the Lease.
10. Tenant has deposited the amount listed in Paragraph 9 of
Exhibit A attached hereto with Landlord as a security deposit under the
Lease.
11. Except as listed in Paragraph 10 of Exhibit A attached hereto,
no parties have guaranteed the performance of any of Tenant's obligations
under the Lease.
12. All reconciliations of actual taxes and operating expenses for
calendar year 1996 and prior years ("Expenses") with payments made by
Tenant therefor have been made and a report thereof delivered to Tenant.
Tenant has not made and has no objections to such reconciliation, and
waives all claims against Landlord for any overpayment of or other amounts
with respect to the Expenses.
____________, ___, 1997 [INSERT NAME OF TENANT]
By:_____________________________
Its:__________________________
EXHIBIT A
Tenant: ___________________________________.
Suite Number.: ___________________________________.
Lease Date: ___________________________________.
Additional Lease Documents (if any): _____________________________
____________________________________________________________.
Lease Commencement Date: _____________________________.
Lease Expiration Date: _____________________________.
Monthly Base Rent Payment: _____________________________.
Monthly Tax and
Operating Expense Payment: _____________________________.
Security Deposit: _____________________________.
Guaranty (if any): ___________________________________ has
guaranteed the performance of Tenant's obligations under the Lease pursuant
to the _____________________, dated _______________, 19__ ("Guaranty"), and
the Guaranty is valid and in full force and effect.
EXHIBIT "D"
DEED
----
STATE OF ________________: After recording return to:
______________________
COUNTY OF ______________: ______________________
LIMITED WARRANTY DEED
THIS INDENTURE, made as of the __ day of _____________, 1997, between
_______________________, a __________________ (hereinafter referred to as
"GRANTOR"), and ____________________, a __________________, its successors
and assigns (hereinafter referred to as "GRANTEE").
W I T N E S S E T H:
-------------------
THAT GRANTOR, for and in consideration of the sum of Ten and No/100
Dollars ($10.00) and other good and valuable consideration, in hand paid at
and before the sealing and delivery of these presents, the receipt and
sufficiency of which are hereby acknowledged, has granted, bargained, sold
and conveyed, and by these presents does grant, bargain, sell and convey
unto the said GRANTEE, that tract or parcel of land lying and being in Land
Lot ___ of the __________ District of _______________ County, Georgia, and
all structures and fixtures located thereon owned by GRANTOR, and being
more particularly described on EXHIBIT "A" attached hereto and by this
reference incorporated herein.
TO HAVE AND TO HOLD, the said tract or parcel of land, with all and
singular the rights, members and appurtenances thereof, to the same being,
belonging, or in anywise appertaining, to the only proper use, benefit and
behoof of the said GRANTEE forever in Fee Simple; subject to all matters
set forth on Exhibit "B" attached hereto (hereinafter referred to as
"Permitted Exceptions").
AND THE SAID GRANTOR will warrant and forever defend the right and
title to the above described property unto the said GRANTEE against the
claims of all persons owning, holding or claiming by, through and under the
GRANTOR, but not otherwise, and excluded from this warranty are claims
arising under or by virtue of the Permitted Exceptions.
IN WITNESS WHEREOF, the GRANTOR has signed and sealed this Limited
Warranty Deed, the day and year first above written.
GRANTOR
-------
______________________________
Signed, sealed and delivered
in the presence of:
_______________________________ By:___________________________
Witness Its:____________________
_______________________________ Attest:_______________________
Notary Public Its:____________________
My Commission Expires: [CORPORATE SEAL]
_________________________________
[NOTARIAL SEAL]
EXHIBIT A
---------
LEGAL DESCRIPTION
-----------------
EXHIBIT "E"
XXXX OF SALE, ASSIGNMENT AND ASSUMPTION
---------------------------------------
XXXX OF SALE, ASSIGNMENT AND ASSUMPTION
(, )
FOR VALUABLE CONSIDERATION, receipt of which is hereby acknowledged,
the undersigned, ____________________, a ____________________("Seller"),
hereby sells, transfers, assigns and conveys to ____________________, a
____________________ ("Buyer"), the following:
1. PERSONAL PROPERTY. All right, title and interest of Seller in
and to those items of tangible personal property described in Exhibit "A"
attached hereto and made a part hereof ("Personal Property"), located upon,
and used in the operation of, that certain property commonly known as
"___________", located in the City of ____________________, County of
__________________, State of ____________________ (collectively, the
"Property").
2. LEASES. All right, title and interest of Seller in and to all
leases ("Leases") relating to the Property and described in Exhibit "B"
attached hereto.
3. SERVICE AGREEMENTS. All right, title and interest of Seller in
and to all service agreements, including rooftop agreements ("Service
Agreements") relating to the Property, or any part of the same and
described in Exhibit "C" attached hereto.
4. INTANGIBLE PROPERTY. All right, title and interest of Seller,
to the extent assignable, in and to the name "____________________", and
all contract rights, agreements, tenant lists, governmental permits,
licenses and approvals, advertising material and telephone exchange numbers
and other intangible property (collectively, the "Intangible Property")
directly relating to the Property.
This Xxxx of Sale, Assignment and Assumption is given pursuant to
that certain purchase agreement captioned "PURCHASE AGREEMENT" dated as of
____________________, 199__ (as amended, the "Agreement"), between the
Seller and Buyer, providing for, among other things, the assignment of the
Personal Property, Leases, Service Agreements and Intangible Property. The
covenants, agreements, and limitations (including, but not limited to, the
limitations of liability provided in paragraph 9B of the Agreement)
provided in the Agreement with respect to the property conveyed hereunder
are hereby incorporated herein by this reference as if herein set out in
full and shall inure to the benefit of and shall be binding upon Seller and
Buyer, and their respective successors and assigns. Said property is
conveyed "as is" without warranty or representation, except as expressly
provided in (and subject to the limitations of) the Agreement.
This Xxxx of Sale, Assignment and Assumption may be executed in one or more
counterparts, each of which shall constitute an original, and all of which,
when taken together, shall constitute one and the same instrument.
DATED: As of ________, 199__
SELLER:
------
______________________________
a ____________________________
By: ________________________
Name: ________________________
Title: _______________________
ASSUMPTION BY BUYER
-------------------
As of this ____ day of ________________, 199___, Buyer hereby
accepts the foregoing assignment of Leases and Service Agreements assigned
hereby and agrees to assume and discharge, in accordance with the terms
thereof, all of the burdens and obligations of Seller thereunder, to the
extent the same first arise from and after the date hereof.
BUYER:
-----
a ________________________________________
By: ____________________________________
Name: ____________________________________
Title:____________________________________
EXHIBIT "F"
EXCEPTIONS TO SELLER'S REPRESENTATIONS AND WARRANTIES
-----------------------------------------------------
EXHIBIT "G"
RENT ROLL
---------
SOUTHTRUST BANK
Lease Dated August 19, 1983
First Amendment Dated May 10, 1984
Second Amendment Dated May 11, 1986 (effective November 1, 1985)
Third Amendment Dated August 1, 0000
Xxxxxx Xxxxxxxxx Dated May 1, 1988
Fifth Amendment and Amended and Restated Fifth Amendment, both Dated
January 1, 1990
Sixth Amendment Dated August 1, 1992
Modification of Sixth Amendment Dated August 8, 1994
Seventh Amendment Dated November 5, 1996
Eighth Amendment Dated September 16, 1997
License to Use Common Area Space Dated January 3, 1984
XXXXXXX PROPERTIES OF GEORGIA LTD.
Lease Dated December 9, 1996
Expansion and Extension Dated April 7, 1997
Term Commencement Agreement Dated January 25, 1997
Cafe' 2000
Lease Dated August 13, 1997
TRANSOFT, INC.
Lease Dated September 3, 1996
Burlington Industries
Lease Dated May 5, 1996
CARNEGIE TECHNOLOGY GROUP, INC.
Lease Dated December 7, 1995
Lease Dated May 29, 1997
PEACHTREE F&I, INC.
Lease Dated April 1, 1997
Term Commencement Agreement April 28, 1997
Fidelity National Title Insurance Company
Lease Dated September 3, 1997
FINANCIAL FEDERAL SAVINGS BANK
Lease Dated January 9, 1997
LEASING SOLUTIONS, INC.
Lease Dated November 15, 1996
Industrial Training Corporation
Lease Dated November 30, 1995
Allendale Mutual Insurance Company
Lease Dated May 3, 1985
First Amendment Dated September 23, 1986
Second Amendment Dated November 17, 1989
Third Amendment Dated January 1, 1995
METRO SUBURBIA, INC.
Lease Dated August 30, 1993
SHAMROCK BROADCASTING, INC.
Lease Dated July 1, 1984
First Amendment Dated September 27, 1985
Second Amendment Dated August 27, 1987
Third Amendment Dated February 28, 1991
Lease Dated Xxxxx 00, 0000
XXXXXXX - XXXXX TRAVEL, INC.
Lease Dated July 14, 1994
Industrial Products International
Lease Dated January 21, 1994
Lease Extension Agreement Dated January 10, 1997
BLACKSTONE & CULLEN, INC.
Lease Dated May 16, 1994
Lease Termination Agreement Dated May 16, 1994
Expansion and Extension Agreement Dated December 31, 1994
Lease Extension Agreement Dated November 5, 1997
The Home Insurance Company
Lease Dated June 9, 1989
Tenant Expansion Agreement Dated August 31, 1993
Tenant Expansion Agreement Dated August 1, 1994
Lease Amendment Dated August 2, 1994
Consent to Sublease Dated November 11, 1996
Consent to Sublease Dated July 15, 1996
Consent to Sublease Dated July 24, 1997
Sublease Dated July 8, 1997
Sublease Dated July 15, 1997
Lease Amendment Dated May 1, 1994
Tenant Acceptance Agreement Dated April 17, 1990
The Long Island Savings Bank, FSB, Assignee of Entrust Funding Corporation
Lease Dated June 1, 1993
Assignment of Lease Dated November 18, 0000
Xxxxxxx XXXX Limited Partnership
LEASE DATED JULY 17, 1985
First Amendment Dated September 19, 1986
Second Amendment Dated June 9, 1988
Third Amendment Dated April 26, 1989
Restatement of Special Stipulation And Amendments To Lease Dated July 31,
1995
EXHIBIT "H-1"
SERVICE AGREEMENTS
------------------
EXHIBIT "H-1"
SERVICE AGREEMENTS
------------------
ABM Janitorial - Janitorial
Xxxxxx'x Peachtree Pest Control - Pest Control
BFI - Trash Removal
Continental Security - Security
Cummins South - Generator Inspection
Xxxxx Landscape - Landscape Maintenance
Xxxxxxxxxx Xxxx - Elevator Maintenance
Nalco Chemical - Water Treatment
PowerVac, Inc. - Garage Sweeping
International Building Services - Window Cleaning
Xxxxxxx Controls, Inc. - Engineering Service
Southeastern Services - Fire Alarm Testing
Southeastern Services - Security Monitor LL-2
EXHIBIT "H-2"
ROOFTOP AGREEMENTS
------------------
EXHIBIT "H-2"
ROOFTOP AGREEMENTS
------------------
PowerTel/Atlanta, Inc. Dated July 29, 1997
Motorola, Inc. Dated November, 1992
Conxus Properties Dated July 3, 1997
EXHIBIT "I"
ENVIRONMENTAL REPORTS
---------------------
EXHIBIT "J"
TENANT NOTICE LETTER
--------------------
EXHIBIT "J"
TENANT NOTICE LETTER
--------------------
, 1997
VIA CERTIFIED MAIL
RETURN RECEIPT REQUESTED
------------------------
______________________________
______________________________
______________________________
______________________________
Re: NOTICE XX XXXX XX XXXXXXXXX XXXXX, XXXXXXX, XXXXXXX
---------------------------------------------------
This notice is delivered to advise you that the building named above
was sold and conveyed on ____________________ by ____________________ to
CMD Realty Investment Fund III, L.P. ("Purchaser"), and that, in connection
with the sale, your lease (and any security deposit thereunder) covering
Suite ___ in the building was assigned to Purchaser. Accordingly, you are
hereby authorized and directed to make all future payments under the lease
to Purchaser at the following address:
CMD Realty Investment Fund III, L.P.
c/o CMD Realty Investors, Inc.
c/o The First National Bank of Chicago
X.X. Xxx 00000
Xxxxxxx, Xxxxxxxx 00000-0000
All communications and notices concerning your lease should be sent
to:
CMD Realty Investment Fund III, L.P.
c/o First National Bank of Chicago
Xxxx Xxxxxx Xxx 00000
Xxxxxxx, Xxxxxxxx 00000-0000
WITH A COPY TO:
--------------
CMD Realty Investment Fund III, L.P.
c/o CMD Realty Investors, Inc.
000 X. Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: General Counsel
______________________________ ______________________________
By: ________________________ By: ________________________
Its: ________________________ Its: ________________________
"Buyer" "Seller"
EXHIBIT "K"
CLOSING RENT ROLL CERTIFICATION
-------------------------------
SELLER'S CLOSING RENT ROLL CERTIFICATE
--------------------------------------
(RiverEdge Place; Atlanta, Georgia)
THIS CLOSING RENT ROLL CERTIFICATE is made as of the _______
day of December, 1997, by CARLYLE REAL ESTATE LIMITED PARTNERSHIP - XV,
an Illinois limited partnership ("SELLER"), for the benefit of CMD REALTY
INVESTMENT FUND III, L.P. an Illinois limited partnership ("BUYER").
R E C I T A L S :
A. Pursuant to that certain Agreement of Sale dated as of December
___, 1997 between Seller and Buyer (the "AGREEMENT"), Seller agrees to sell
to Buyer certain improved real property located in the City of Atlanta,
District of Xxxxxx County, State of Georgia.
B. The Agreement requires the delivery of this Closing Rent Roll
Certificate.
NOW THEREFORE, pursuant to the Agreement, Seller does hereby represent and
warrant to Buyer that:
1. The rent roll attached hereto as Exhibit "A" is true,
correct and complete as of the date hereof.
2. This Certificate is subject to the terms and conditions
of the Agreement (including all limitations on liability and survival
limitations contained therein).
IN WITNESS WHEREOF, the undersigned has executed this
Certificate as of the day and year first above written.
SELLER:
------
CARLYLE REAL ESTATE LIMITED
PARTNERSHIP-XV,
an Illinois limited partnership,
General Partner
By: JMB REALTY CORPORATION,
a Delaware corporation,
General Partner
By: ___________________________
Name: ________________________
Title: ________________________
EXHIBIT "A"
RENT ROLL
---------
EXHIBIT "L"
PREPAID RENTALS
---------------
EXHIBIT "M"
SECURITY DEPOSITS
-----------------
EXHIBIT "N"
LEASE COMMISSIONS
-----------------
NONE
