EXHIBIT 2.1
CITRUS CENTER
ORLANDO, FLORIDA
REAL ESTATE SALE AGREEMENT
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THIS REAL ESTATE SALE AGREEMENT (this "Agreement") is made as of the ____
day of June, 1997, by and between SOUTH ORANGE AVENUE ASSOCIATES, an Illinois
joint venture ("Seller"), having an office at c/o Equity Office Holdings,
L.L.C., Xxx Xxxxx Xxxxxxxxx Xxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000, and
TRICONY FLORIDA CORPORATION, a Florida corporation ("Purchaser"), having an
office at 000 0/0 Xxxxx Xxxxxx, Xxxxx 0-X, Xxxx Xxxxx, Xxxxxxx 00000.
RECITALS
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A. Seller is the owner of that certain parcel of real estate (the "Real
Property") in the City of Orlando, County of Orange, State of Florida commonly
known as 000 Xxxxx Xxxxxx Xxxxxx, which parcel is more particularly described in
attached EXHIBIT A, and upon which is situated an office building commonly known
as "Citrus Center".
B. Seller desires to sell to Purchaser, and Purchaser desires to purchase
from Seller, the "Property" (as such term is hereinafter defined), each in
accordance with and subject to the terms and conditions set forth in this
Agreement.
THEREFORE, in consideration of the above Recitals, the mutual covenants and
agreements herein set forth and the benefits to be derived therefrom, and other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Purchaser and Seller agree as follows:
1. PURCHASE AND SALE
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Subject to and in accordance with the terms and conditions set forth in
this Agreement, Purchaser shall purchase from Seller and Seller shall sell to
Purchaser the Real Property, together with: (i) all buildings and improvements
owned by Seller and any and all of Seller's rights, easements, licenses and
privileges presently thereon or appertaining thereto; (ii) Seller's right, title
and interest in and to all agreements of lease affecting the Property or any
part thereof (individually, a "Lease", and collectively, the "Leases"); (iii)
the interest of Seller in all of the security deposits paid by tenants under the
Leases that are listed on EXHIBIT Q attached hereto and which are not applied by
Seller with the consent of Purchaser (such consent not to be unreasonably
withheld or delayed) in accordance with the terms of the Leases and/or
applicable law between the date of this Agreement and Closing (the "Security
Deposits"); (iv) all of the furniture, furnishings, fixtures, equipment,
maintenance vehicles, tools and other tangible personalty owned by Seller,
located on the Property and used in connection therewith that are listed on
EXHIBIT K attached hereto (the "Personal Property"); and (v) all right, title
and interest of Seller under any and all of the maintenance, service,
advertising, equipment rental, license agreements and other like contracts and
agreements with respect to the ownership and operation of the Property that are
listed on EXHIBIT C attached hereto (the "Service Contracts"); all to the extent
applicable to the period from and after the "Closing" (as such term is
hereinafter defined) (items (i) through (v) above, together with the Real
Property, are collectively referred to in this Agreement as the "Property"). All
of the foregoing expressly excludes: (A) all property owned by tenants or other
users or occupants of the Property except to the extent that any Security
Deposits are deemed to be "owned" by a tenant under applicable law; and
(B) all rights with respect to any refund of taxes attributable to the Property
with respect to any period prior to the "Closing" (as hereinafter defined).
2. PURCHASE PRICE
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The purchase price to be paid by Purchaser to Seller for the Property
is Twenty-Eight Million Five Hundred Thousand Dollars ($28,500,000.00) (the
"Purchase Price"). The Purchase Price shall be paid as follows:
X. Xxxxxxx Money.
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(i) Prior to the date of this Agreement, Purchaser and Seller
entered into that certain letter of intent (the "Letter of
Intent") dated May 16, 1997, accepted by Purchaser on May
19, 1997 and accepted by Seller on May 20, 1997. Purchaser,
pursuant to the Letter of Intent, has deposited initial
xxxxxxx money (together with any interest accrued thereon,
the "Initial Xxxxxxx Money") in the sum of Two Hundred Fifty
Thousand Dollars ($250,000.00) with Purchaser's counsel,
Broad and Xxxxxx (the "Initial Escrowee"). Upon execution of
this Agreement by both Purchaser and Seller, this Section
2(A)(i) shall serve as written notice to Initial Escrowee by
Seller and Purchaser to deposit the Initial Xxxxxxx Money
with the Tampa, Florida office of Xxxxxxx & Xxxxx
("Escrowee"). In addition, concurrently with the execution
of this Agreement by Purchaser and Seller, Purchaser has
deposited additional xxxxxxx money (the "Additional Xxxxxxx
Money") in the sum of Two Hundred Fifty Thousand Dollars
($250,000.00) with the Escrowee (the Initial Xxxxxxx Money
and the Additional Xxxxxxx Money, together with any interest
accrued thereon, are collectively referred to herein as the
"Xxxxxxx Money"). To instruct Escrowee as to the retention,
investment and disposition of the Xxxxxxx Money, Escrowee,
Seller and Purchaser shall, concurrently with the execution
of this Agreement, execute a joint order escrow agreement
(the "Joint Order Escrow Agreement") in the form of EXHIBIT
D attached hereto. Any and all interest earned on the
Xxxxxxx Money shall be reported to Purchaser's federal tax
identification number.
(ii) If the transaction closes in accordance with the terms of
this Agreement, at Closing, the Xxxxxxx Money shall be
delivered by Escrowee to Seller as part payment of the
Purchase Price. If the transaction fails to close due to a
default on the part of Purchaser, the Xxxxxxx Money shall be
delivered by Escrowee to Seller as liquidated and agreed
upon damages in accordance with Section 7(B) below. If the
transaction fails to close due to a default on the part of
Seller, the Xxxxxxx Money shall be delivered by Escrowee to
Purchaser, and Purchaser shall have the remedy provided for
in Section 7(A) below.
B. Cash at Closing. At Closing, Purchaser shall pay to Seller, by
wire transferred current federal funds, an amount equal to the Purchase Price,
minus the sum of the Xxxxxxx Money which
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Seller receives at Closing from the Escrowee, and plus or minus, as the case may
require, the closing prorations and adjustments to be made pursuant to Section
4(C) below.
3. EVIDENCE OF TITLE
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A. Title Commitment.
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Seller has, prior to the date of this Agreement, obtained and
caused to be delivered to Purchaser: (i) title commitment number 209602189,
bearing an effective date of May 15, 1997 at 11:00 p.m. (the "Title
Commitment"), in the amount of the Purchase Price, issued by Xxxxxxx & Xxxxx, as
agent for Chicago Title Insurance Company (the "Title Insurer"), and (ii) copies
of all documents set forth in Schedule B-Section 2 of the Title Commitment. At
Closing, the Title Insurer shall deliver to Purchaser a marked-up title
commitment dated as of the "Closing Date" (defined below) from the Title Insurer
in the amount of the Purchase Price reflecting the conveyance of the Property to
Purchaser, subject only to those exceptions to title which are more fully
described on attached EXHIBIT B and exceptions to title which become Permitted
Exceptions pursuant to this Section 3 (collectively, the "Permitted
Exceptions").
B. Survey.
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Purchaser shall, within one (1) day after the date of this
Agreement, order a survey of the Real Property (the "Survey"). Upon Purchaser's
receipt of the Survey, Purchaser shall promptly deliver a copy of the Survey to
Seller and the Title Insurer.
C. Review of Title Commitment and Survey.
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If the Title Commitment or Survey disclose exceptions to title
other than those Permitted Exceptions which are noted on attached EXHIBIT B,
then Purchaser shall have until 5:00 p.m. (Chicago, Illinois time) on the tenth
(10th) day after the date of its receipt of the last of the Title Commitment and
Survey (but in no event later than the twenty-fifth (25th) day after the date of
this Agreement) within which to notify Seller of any such exceptions to title to
which Purchaser objects. If any additional exceptions to title arise between the
date of the Title Commitment, the Survey and the Closing, Purchaser shall have
five (5) days after its receipt of notice of same within which to notify Seller
of any such exception to title to which Purchaser objects. Any such exceptions
to title not objected to by Purchaser as aforesaid shall become Permitted
Exceptions. If Purchaser objects to any such exceptions to title, Seller shall
have until Closing (but in any event at least fifteen [15] days after it
receives notice of Purchaser's objection(s)) to remove such exceptions to title,
which removal may be accomplished by waiver or endorsement by the Title Insurer.
If Seller fails to remove any such exceptions to title as aforesaid, Purchaser
may, as its sole and exclusive remedy, terminate this Agreement and obtain a
return of the Xxxxxxx Money. If Purchaser does not elect to terminate this
Agreement, Purchaser shall consummate the Closing and accept title to the
Property subject to all such exceptions to title (in which event, all such
exceptions to title shall be deemed "Permitted Exceptions"). Notwithstanding
anything in this Section 3(C) to the contrary, Seller shall be obligated, at
Closing, to cause the Title Insurer to remove (by waiver or endorsement) any
"Unpermitted Exceptions" (as hereinafter defined) that are not set forth on
EXHIBIT B attached hereto. For purposes of this Agreement, the term "Unpermitted
Exceptions" shall be defined to mean mortgages and deeds of trust granted by
Seller and mechanic's liens with respect to work contracted for by Seller or its
authorized agents, provided that Seller has received written notice of such
mechanic's lien prior to Closing and the
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cost to remove such mechanic's liens as aforesaid does not exceed Ten Thousand
Dollars ($10,000.00) in the aggregate.
4. CLOSING
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A. Closing Date. The "Closing" of the transaction contemplated
by this Agreement (that is, the payment of the Purchase Price, the transfer of
title to the Property, and the satisfaction of all other terms and conditions of
this Agreement) shall occur on August 4, 1997 with Escrowee acting as closing
escrowee at the Miami, Florida office of counsel for Purchaser, Broad and
Xxxxxx, or at such other time and place as Seller and Purchaser shall agree in
writing. The "Closing Date" shall be the date of Closing. If the date for
Closing above provided for falls on a Saturday, Sunday or legal holiday, then
the Closing Date shall be the next business day.
B. Closing Documents.
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(i) Seller. At Closing, Seller shall deliver to
Purchaser the following:
(a) a special warranty deed (the "Deed"), subject
to the Permitted Exceptions and in form
attached hereto as Exhibit R;
(b) a xxxx of sale (the "Xxxx of Sale") in the
form attached hereto as EXHIBIT J;
(c) a letter advising tenants under the Leases of
the change in ownership of the Property in
the form of EXHIBIT L attached hereto;
(d) a letter advising vendors/licensees under the
Service Contracts of the change in ownership
of the Property in the form of EXHIBIT M
attached hereto;
(e) four (4) counterparts of an assignment and
assumption of the Leases and Security
Deposits in the form of EXHIBIT E attached
hereto (the "Lease Assignment"), executed by
Seller;
(f) four (4) counterparts of an assignment and
assumption of the Service Contracts in the
form of EXHIBIT F attached hereto (the
"Service Contract Assignment"), executed by
Seller;
(g) an affidavit stating, under penalty of
perjury, Seller's U.S. taxpayer
identification number and that Seller is not
a foreign person within the meaning of
Section 1445 of the Internal Revenue Code;
(h) four (4) counterparts of a closing statement
(the "Closing Statement") to be executed by
Seller and Purchaser, containing the "Closing
Delinquency Schedule" (as defined below) and
setting forth the prorations and adjustments
to the Purchase Price as required by Section
4(C) below, executed by Seller;
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(i) all executed "Estoppel Certificates" (as
hereinafter defined) received by Seller as of
the Closing Date;
(j) any "Seller Estoppel Certificates" (defined
below) to be delivered by Seller pursuant to
Section 9 below;
(k) copies of those Leases for which either (1)
Estoppel Certificates were not received by
Seller or Purchaser prior to the Closing
Date, or (2) Seller Estoppels were not
delivered by Seller at Closing, certified by
Seller to be true and correct (Purchaser
hereby acknowledging that, as more
particularly provided in Section 9(E) below,
Seller's liability under such certifications
shall terminate on a date no later than the
one hundred eightieth (180th) day after the
Closing Date); and
(l) four (4) counterparts of a letter with
respect to Seller's delivery of information
required under 29 C.F.R.
(S)1910.1001(j)(2)(ii) and 29 C.F.R.
(S)1926.1101(n)(6) (the "OSHA Letter") in the
form of EXHIBIT O attached hereto, executed
by Seller.
(ii) Purchaser. Purchaser shall deliver or cause to be
delivered to Seller at Closing:
(a) the funds required pursuant to Section 2(B)
above;
(b) four (4) counterparts of the Lease
Assignment, executed by Purchaser;
(c) four (4) counterparts of the Service Contract
Assignment, executed by Purchaser;
(d) four (4) counterparts of the Closing
Statement, executed by Purchaser;
(e) copies of any executed Estoppel Certificates
received by Purchaser from tenants as of the
Closing Date, if any; and
(f) four (4) counterparts of the OSHA Letter,
executed by Purchaser.
C. Closing Prorations and Adjustments.
(i) The following items are to be prorated or adjusted
(as appropriate) as of the Closing Date, it being
understood that for purposes of prorations and
adjustments, Seller shall be deemed the owner of
the Property on the day prior to the Closing Date
and Purchaser shall be deemed the owner of the
Property on the Closing Date:
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(a) real estate and personal property taxes and
assessments (initially on the basis of the
most recent ascertainable tax xxxx if the
current xxxx or evidence sufficient to
calculate the amount of the taxes for the
period through Closing is not then available
and, in all events, subject to reproration as
described in Section 4(C)(iv) below);
(b) the "minimum" or "base" rent payable by
tenants under the Leases ("Base Rent");
provided, however, that rent and all other
sums which are due and payable to Seller by
any tenant but uncollected as of the Closing
shall not be adjusted, but Purchaser shall
cause the rent and other sums for the period
prior to Closing to be remitted to Seller if,
as and when collected. At Closing, Seller
shall deliver to Purchaser a schedule (the
"Closing Delinquency Schedule") of all such
past due but uncollected rent and other sums
owed by tenants (the "Past Due Rents").
Purchaser shall include the amount of the
Past Due Rents in the first bills thereafter
submitted to the tenants in question after
the Closing and shall promptly provide Seller
with copies of such bills upon issuance, and
shall continue to do so for six (6) months
thereafter. Purchaser shall promptly (that
is, no less than once per month) remit to
Seller any such Past Due Rents paid by
tenants set forth on the Closing Delinquency
Schedule, but only if a deficiency in the
then current rent is not thereby created. To
the extent not set forth on the Closing
Delinquency Schedule, "Operating Expense
Reimbursements" (as hereinafter defined)
shall be prorated in accordance with this
Section 4(C)(i)(b) and Sections 4(C)(ii),
4(C)(iii) and 4(C)(iv) below. Overage rent
(if any), percentage rent (if any) and
reimbursement of real estate taxes payable,
common area maintenance, utility charges,
water and sewer charges, insurance and all
other charges to or contributions by tenants
under the Leases other than Base Rent (such
costs and expenses being collectively
referred to herein as the "Operating
Expenses", and the amounts reimbursable by
tenants under the Leases with respect to such
Operating Expenses being referred to herein
as the "Operating Expense Reimbursements")
shall be prorated as follows: the amount of
any Base Rent and Operating Expense
Reimbursements to be paid by any tenant shall
be paid in accordance with such tenant's
Lease as now existing (Purchaser hereby
covenanting and agreeing not to modify the
Leases after Closing to change the date
and/or method for payment of such amounts
with respect to the period prior to Closing
until after the occurrence of the
reprorations described in Sections 4(C)(iii)
and 4(C)(iv) below) and Purchaser shall,
after Closing, promptly pay to Seller a
prorata portion of such Operating Expense
Reimbursements, based upon apportionment
being made as of the Closing Date, promptly
after the date when
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such Operating Expense Reimbursements are
received from the tenant;
(c) with respect to tenant improvement costs
and/or allowances or leasing or brokerage
commissions relating to (1) the "New Leases"
(as hereinafter defined) set forth on EXHIBIT
S attached hereto, and (2) any other New
Leases executed during the period between May
20, 1997 and Closing with the consent of
Purchaser granted (or deemed to be granted)
in accordance with Section 11(L)(1) below,
Seller and Purchaser agree that such costs,
allowances and commissions shall be prorated
over the initial term of any such New Lease
with Seller being responsible for a portion
of such costs, allowances and commissions
based on the ratio of Base Rent payments
received by Seller through the Closing Date
to the total Base Rent payable over the
initial term of the particular New Lease and,
in the event that Seller has paid such costs,
allowances and/or commissions prior to
Closing, Purchaser shall reimburse Seller at
Closing for the amount of any such costs,
allowances and/or commissions paid by Seller,
based on the above-described proration;
(d) the amount of the Security Deposits, with
Purchaser receiving a credit at Closing
against the Purchase Price in the amount of
the Security Deposits held by Seller as of
the Closing Date;
(e) water, sewer, electric, telephone and all
other utility and fuel charges, fees and use
charges, fuel on hand (at cost plus sales
tax), and any deposits with utility companies
(to the extent possible, utility prorations
will be handled by meter readings on the
Closing Date);
(f) amounts due and prepayments under the Service
Contracts;
(g) assignable license and permit fees; and
(h) other similar items of income and expenses of
operation.
(ii) Notwithstanding any other provision of this
Section 4(C) but subject to Sections 4(C)(iii) and
4(C)(iv) below, Seller shall, upon Closing, be
entitled to retain Operating Expense
Reimbursements paid by tenants under the Leases as
of the Closing.
(iii) As soon as practical after Closing, but in no
event later than April 30, 1998, Seller and
Purchaser shall, with respect to any such amounts
prorated or adjusted at Closing pursuant to
Section 4(C)(i) above based on estimates or
formulae, as applicable (other than real estate
and personal property taxes and assessments, which
shall be reprorated in accordance with Section
4(C)(iv) below), jointly determine and
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reapportion such amounts in accordance with
Section 4(C)(i) above upon determination of the
actual costs or expenses with respect thereto. In
the event that the amount credited to Purchaser by
Seller at Closing exceeds the amount of the credit
that Purchaser should have received had such
actual amounts been available at Closing,
Purchaser shall promptly remit such excess amount
to Seller. In the event that the amount of
Operating Expense Reimbursements retained by
Seller at Closing is less than the amount of
Operating Expense Reimbursements to which Seller
is entitled after calculation of actual Operating
Expenses under this Section 4(C), Purchaser shall
(x) to the extent such amounts have already been
collected by Purchaser from the tenants, promptly
remit such amounts to Seller, and (y) to the
extent such amounts have not yet been collected
from tenants, Purchaser shall promptly xxxx the
tenants for such amounts, promptly provide Seller
with copies of such bills upon issuance,
diligently pursue collection thereof and, promptly
upon receipt thereof, pay such amounts to Seller.
In the event that: (1) the amount credited to
Seller by Purchaser at Closing exceeds the amount
of the credit that Seller should have received at
Closing had the actual amount of such Operating
Expenses been available at Closing; and/or (2) the
amount of the Operating Expense Reimbursements
retained by Seller at Closing with respect to such
actual amount Operating Expenses exceeds the
amount of the Operating Expense Reimbursements
that Seller should have retained at Closing had
such actual amounts been available at Closing and
a portion of such excess amounts are refundable to
tenants under any of the Leases, Seller shall, at
its option, either: (A) promptly remit such excess
amounts to the particular tenants entitled to
refund of such amounts, or (B) remit such excess
amounts to Purchaser and Purchaser shall be
thereafter obligated to promptly remit such
portion to the particular tenants in question (and
Purchaser shall indemnify, defend and hold Seller,
its beneficiaries, their partners, and their
respective directors, officers, employees and
agents, and each of them, harmless from and
against any losses, claims, damages and
liabilities [including, without limitation,
reasonable attorneys' fees and expenses incurred
in connection therewith] arising out of or
resulting from Purchaser's failure to remit such
amounts to the tenants in accordance with this
Section 4(C)(iii) and Section 4(C)(iv) below). In
addition, in the event that any of the Leases
require that the tenants thereunder receive a
reconciliation (and xxxx, in the event that tenant
owes additional amounts under their Lease) with
respect to Operating Expense Reimbursements prior
to May 1, 1998, then Seller shall, not less than
twenty (20) days prior to the date that such
reconciliation (and xxxx, if applicable) is to be
delivered to the tenant under the terms of
applicable Lease, provide Purchaser with the
necessary information to provide reconciliations
(and bills, if applicable) to such tenants with
respect to the period prior to Closing. Seller
shall only be obligated to provide such
information with respect to those Leases set forth
in a written instrument received from Purchaser
within five (5) days from the date of this
Agreement and only if such leases require that
such reconciliations be provided prior to May 1,
1998.
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(iv) As of the date of this Agreement, Seller has not
appealed the assessed value of the Real Property
for real estate tax purposes with respect to tax
year(s) attributable to 1997 and a corresponding
reduction in real estate taxes payable with
respect to such tax year(s). Purchaser and Seller
hereby agree that: (1) Seller may, after Closing,
if it so elects, commence and thereafter maintain
control of the real estate tax appeal and
reduction process with respect to tax year(s)
attributable to 1997 and shall have the right to
engage counsel, consultants, expert witnesses and
appraisers as Seller shall reasonably determine to
be necessary to such appeal and Purchaser shall
cooperate (and cause its counsel to cooperate)
with Seller with respect to such process; (2)
Seller and Purchaser shall each be responsible for
a proportionate share of the cost of any counsel,
consultant, expert witness or appraiser employed
by Seller to obtain any reduction of real estate
taxes for such tax years, based on their
respective periods of ownership during the
applicable tax year; and (3) Seller and Purchaser
shall reprorate real estate and personal property
taxes (which were approximated at Closing pursuant
to Section 4(C)(i)(a) above based on the most
recent ascertainable tax bills) and the Operating
Expense Reimbursements received from tenants with
respect to such taxes upon issuance of the final
real estate and personal property tax bills for
the tax years in which the Closing occurs (and
such reproration shall take into account the
reduction in assessed value described in the first
sentence of this Section 4(C)(iv)). If, after the
reproration described in item (3) of this Section
4(C)(iv), the amount credited to Purchaser by
Seller at Closing exceeds the amount of the credit
that Purchaser should have received had such
actual amounts been available at Closing,
Purchaser shall promptly remit such excess amount
to Seller. If, after the reproration described in
item (3) of this Section 4(C)(iv): (x) the amount
credited to Seller by Purchaser at Closing with
respect to such taxes exceeds the amount of the
credit that Seller should have received at Closing
had such actual amounts been available at Closing;
and/or (y) the amount of the Operating Expense
Reimbursements retained by Seller at Closing with
respect to such taxes exceed the amount of the
Operating Expense Reimbursements that Seller
should have retained at Closing with respect to
such taxes had the actual amount of such taxes
been available at Closing, then: (I) Seller shall
promptly remit the portion of such excess amounts
that are attributable to real estate taxes paid by
Purchaser that are not reimbursable to Purchaser
by tenants under the Leases, and (II) if any
portion of such excess amounts are refundable to
tenants under any of the Leases, Seller shall, at
its option, either: (x) promptly remit such excess
amounts to the particular tenants entitled to
refund of such amounts, or (y) remit such excess
amounts to Purchaser and Purchaser shall be
thereafter obligated to promptly remit such
portion to the particular tenants entitled
thereto.
(v) If Seller has not received all Past Due Rents or
other amounts owed to it by tenants within one
hundred twenty (120) days after the Closing Date,
Seller at its sole cost and expense, shall be
entitled at any time within the
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twelve (12) month period after such one hundred
twenty (120) day period (with respect to Past Due
Rents) or within the twelve (12) month period
after such other amounts are due (with respect to
amounts other than Past Due Rents), to commence
such actions or proceedings not affecting
possession or enforcing landlord's liens or
resulting in termination of the Lease in question
as Seller shall desire to collect any such Past
Due Rents or other amounts, and Purchaser shall
cooperate with Seller in any such action.
(vi) For purposes of this Section 4(C), the amount of
any expense credited by one party to the other
shall be deemed an expense paid by that party. The
terms and provisions of this Section 4(C) shall
survive Closing and the delivery of the Deed.
D. Transaction Costs.
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Whether or not the Closing occurs: (A) Seller shall be
responsible for and pay (i) the base premium for the owner's title insurance
policy (the "Base Premium") to be issued to Purchaser at Closing in accordance
with the provisions of the marked-up title commitment described in Section 3(A)
above, (ii) the Florida documentary stamps (the "Transfer Taxes") owed in
connection with the Deed (and Seller and Purchaser shall timely execute and
deliver such forms and returns as are necessary in connection therewith), (iii)
one-half of Escrowee's standard escrow fees (the "Escrow Fees"), if any, (iv)
all recording charges for recording any releases or reconveyances of Seller's
existing mortgage financing, and (v) the fees and costs of its attorneys and
advisors; and (B) Purchaser shall be responsible for and pay (i) any premiums,
cost and other expenses charged by the Title Insurer in connection with the
issuance at Closing of an owner's title insurance policy (including any and all
endorsements) over and above the Base Premium to be paid by Seller under sub-
clause (A)(i) of this Section 4(D), (ii) the cost of the Survey, (iii) one-half
of the Escrow Fees, if any, (iv) all recording charges other than charges for
recording any releases or reconveyances of Seller's existing mortgage financing,
and (v) the fees and costs of its attorneys and advisors.
E. Possession.
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Upon Closing, Seller shall deliver to Purchaser
possession of the Property, subject to such matters as are permitted by or
pursuant to this Agreement.
5. CASUALTY LOSS AND CONDEMNATION
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If, prior to Closing, the Property or any part thereof
shall be taken or condemned, a suit filed to take or condemn all or a portion of
the Property, or the Property or any portion thereof is destroyed or damaged by
fire or other casualty, Seller shall promptly so notify Purchaser. In such
event, provided that either: (i) the reasonable cost to restore the Property due
to such damage or destruction is greater than One Million and No/100 Dollars
($1,000,000.00) (a "Material Casualty"), or (ii) any material portion of the
building located on the Property is designated to be or is taken or condemned (a
"Material Condemnation"), then Purchaser shall have the option to terminate this
Agreement by delivery of its written termination notice to Seller within fifteen
(15) days after Seller's delivery to Purchaser of its notice of a Material
Condemnation or the occurrence of a Material Casualty. If (a) the aforementioned
casualty is not a Material Casualty, (b) the aforementioned taking or
condemnation is not a Material Condemnation, or (c) Purchaser does not elect to
terminate this Agreement pursuant to the
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provisions of the preceding sentence (time being of the essence with respect to
any such election), then Seller and Purchaser shall consummate the transaction
contemplated by this Agreement without abatement of the Purchase Price (except
that Purchaser shall receive a credit against the Purchase Price in an amount
equal to any deductible amount under Seller's casualty insurance payable with
respect to the Property) and Purchaser shall be entitled to approve the terms of
any insurance settlement, such approval not to be unreasonably withheld or
delayed, and to receive at Closing the taking, condemnation or insurance
proceeds (or an assignment of the right to such proceeds) (less any amounts
applied against costs incurred or income lost by Seller as a result of such
occurrence) and Seller shall, at Closing, execute and deliver to Purchaser all
customary proofs of loss, assignments of claims and other similar items. If
Purchaser elects to terminate this Agreement pursuant to the provisions of this
Section 5 and Purchaser is not in default under this Agreement, the Xxxxxxx
Money shall be returned to Purchaser by the Escrowee, in which event this
Agreement shall, without further action of the parties, become null and void and
neither party shall have any further rights or obligations under this Agreement;
provided, however, that the foregoing shall not limit Seller's recourse against
Purchaser under Sections 6 and 11(G) below and under the "Confidentiality
Agreement" (as hereinafter defined).
6. BROKERAGE
---------
Seller, pursuant to a separate written agreement (the "Xxxxxxx
Agreement"), is obligated to pay upon Closing (but not otherwise) a brokerage
commission to Xxxxxxx Realty, Inc. ("Xxxxxxx") for services rendered in
connection with the sale and purchase of the Property. Seller shall indemnify
and hold Purchaser harmless from and against any and all claims of Xxxxxxx
related to Seller's agreement under the Xxxxxxx Agreement to pay Xxxxxxx a
commission in connection with the purchase and sale of the Property, including,
without limitation, reasonable attorneys' fees and expenses incurred by
Purchaser in connection with such claim. Purchaser represents and warrants to
Seller that Purchaser does not have any agreement with any broker or finder in
connection with the Property. Seller and Purchaser shall each indemnify and
hold the other harmless from and against any and all claims of all brokers and
finders (other than a claim by Xxxxxxx against Seller of the type described in
the preceding sentence, which claim Seller shall be obligated to indemnify
Purchaser against in accordance with the preceding sentence) claiming by,
through or under the indemnifying party and in any way related to the sale and
purchase of the Property, this Agreement or otherwise, including, without
limitation, reasonable attorneys' fees and expenses incurred by the indemnified
party in connection with such claim.
7. DEFAULT AND REMEDIES
--------------------
A. Notwithstanding anything to the contrary contained in this
Agreement, if (i) Seller fails to perform in accordance with the terms of this
Agreement, (ii) Purchaser is not otherwise in default hereunder, and (iii) the
Closing does not occur, then, as Purchaser's sole and exclusive remedy hereunder
and at Purchaser's option, either (x) the Xxxxxxx Money shall be returned to
Purchaser, in which event this Agreement shall be null and void, and neither
party shall have any rights or obligations under this Agreement, or (y) upon
notice to Seller not less than ten (10) days after Purchaser becomes aware of
such failure, and provided an action is filed within thirty (30) days
thereafter, Purchaser may seek specific performance of this Agreement, but not
damages. Purchaser's failure to seek specific performance as aforesaid shall
constitute its election to proceed under clause (x) above.
B. If Purchaser fails to perform in accordance with the terms of this
Agreement, the Xxxxxxx Money may be retained by Seller as liquidated and agreed
upon damages and as Seller's sole and exclusive remedy with respect thereto;
provided, however, that the foregoing shall not limit Seller's recourse against
Purchaser under Section 6 above, Section 11(G) below and under the
Confidentiality
11
Agreement. PURCHASER AND SELLER ACKNOWLEDGE AND AGREE THAT (1) THE XXXXXXX MONEY
IS A REASONABLE ESTIMATE OF AND BEARS A REASONABLE RELATIONSHIP TO THE DAMAGES
THAT WOULD BE SUFFERED AND COSTS INCURRED BY SELLER AS A RESULT OF HAVING
WITHDRAWN THE PROPERTY FROM SALE AND THE FAILURE OF CLOSING TO OCCUR DUE TO A
DEFAULT OF PURCHASER UNDER THIS AGREEMENT; (2) THE ACTUAL DAMAGES SUFFERED AND
COSTS INCURRED BY SELLER AS A RESULT OF SUCH WITHDRAWAL AND FAILURE TO CLOSE DUE
TO A DEFAULT OF PURCHASER UNDER THIS AGREEMENT WOULD BE EXTREMELY DIFFICULT AND
IMPRACTICAL TO DETERMINE; (3) PURCHASER SEEKS TO LIMIT ITS LIABILITY UNDER THIS
AGREEMENT TO THE AMOUNT OF THE XXXXXXX MONEY IN THE EVENT THIS AGREEMENT IS
TERMINATED AND THE TRANSACTION CONTEMPLATED BY THIS AGREEMENT DOES NOT CLOSE DUE
TO A DEFAULT OF PURCHASER UNDER THIS AGREEMENT; AND (4) THE XXXXXXX MONEY SHALL
BE AND CONSTITUTE VALID LIQUIDATED DAMAGES.
PURCHASER INITIALS: SELLER INITIALS:
__________________ __________________
C. After Closing, Seller and Purchaser shall, subject to the terms
and conditions of this Agreement, have such rights and remedies as are available
at law or in equity, except that neither Seller nor Purchaser shall be entitled
to recover from the other consequential or special damages.
8. CONDITION PRECEDENT - INSPECTION PERIOD
---------------------------------------
Subject to Section 11(G) below and the provisions of that certain
confidentiality letter agreement dated February 12, 1997 by and between Xxxxxxx,
on behalf of Seller, and Purchaser, as amended by that certain modification
letter agreement dated May 16, 1997 by and between Equity Office Holdings,
L.L.C., a Delaware limited liability company, on behalf of Seller, and Purchaser
(collectively the "Confidentiality Agreement"), Purchaser acknowledges that it
has, prior to the date hereof, had an opportunity to inspect the Property,
review the Leases, the Service Contracts, all "Disclosures" (as hereinafter
defined) provided by Seller and make sure other inquiries and investigations and
obtain such reports and analyses if deemed adequate in connection with its
decision to purchase the Property, and, as a result thereof, Purchaser agrees
that, except as specifically set forth in this Agreement, it shall purchase the
Property in its "AS IS, WHERE IS" condition, subject to ordinary wear and tear
and as more particularly provided in Section 11(H) below. Subject to Section
11(G) below and the Confidentiality Agreement, Purchaser shall continue to have
reasonable access to the Property in order to prepare to acquire and take over
operation of the Property upon Closing.
9. ESTOPPEL CERTIFICATES
---------------------
A. Seller shall, within ten (10) days after the date of this
Agreement, send estoppel certificates (individually, an "Estoppel Certificate"
and collectively, the "Estoppel Certificates") to each tenant occupying space at
the Property as of the date of this Agreement. The Estoppel Certificates sent
to tenants by Seller shall be in the form of EXHIBIT G attached hereto (the
"Form Tenant Estoppel Certificate").
12
B. It shall be a condition precedent to Purchaser's obligation to
purchase the Property pursuant to this Agreement that Seller provide to
Purchaser, at Closing, Estoppel Certificates, dated as of a date after the date
of this Agreement, executed by tenants occupying not less than seventy-five
percent (75%) of the net rentable square footage of space at the Property
(exclusive of space currently occupied by Seller or "EOP" [defined below] as a
leasing and management office) as of the Closing Date, specifically including
within such seventy-five percent (75%) the "Designated Tenants" (as hereinafter
defined) (collectively, the "Required Tenants"). For purposes of this
Agreement, the term "Designated Tenants" shall mean the tenants set forth on
EXHIBIT T attached hereto and the term "Designated Tenant" shall mean any one of
such Designated Tenants. The Estoppel Certificates executed by tenants shall be
in substantially the form of the Form Tenant Estoppel Certificate, except that
an Estoppel Certificate shall be deemed an acceptable Estoppel Certificate for
purposes of this Section 9 if it is not addressed to Xxxx Xxxxx Real Estate
Services, Inc. and/or if it contains the qualification by the tenant of any
statement as being to the best of its knowledge or as being subject to any
similar qualification (the aforesaid acceptable Estoppel Certificates to be
delivered are collectively referred to as the "Required Estoppel Certificates").
Purchaser acknowledges that, as noted above, the space occupied by Equity Office
Properties, L.L.C. ("EOP"), Seller's on-site manager, shall not be included in
the seventy-five percent (75%) described above, as EOP will vacate the Property,
effective as of Closing.
C. Seller shall use reasonable efforts prior to Closing to obtain
Estoppel Certificates from all tenants other than EOP (it being understood that
such efforts shall in no way include Seller incurring any additional liabilities
or expending any sum of money [other than fees of its counsel, if any, and the
cost of any faxing, postage, messenger services and overnight courier
services]). In the event that Seller is unable to provide the Required Estoppel
Certificates to Purchaser at the Closing, Seller shall be obligated to execute
and deliver to Purchaser certificates (individually, a "Seller Estoppel
Certificate", and, collectively, the "Seller Estoppel Certificates")
substantially in the same form as the certificate attached hereto as EXHIBIT U
(the "Form Seller Estoppel Certificate") covering the Designated Tenants with
respect to whom have not executed and delivered Estoppel Certificates, provided
that Purchaser shall not be required to accept such Seller Estoppel Certificate
with respect to such Designated Tenants (and, in the event that Purchaser does
not accept such Seller Estoppel Certificates, this Agreement shall be null and
void, the Escrowee shall promptly return the Xxxxxxx Money to Purchaser and
thereafter neither Seller nor Purchaser shall have any further rights or
obligations under this Agreement, provided, however, that the foregoing shall
not limit Seller's recourse against Purchaser under Section 6 above and Section
11(G) below and under the Confidentiality Agreement). In the event that Seller
is unable to provide Required Estoppel Certificates to Purchaser at Closing with
respect to any of the Required Tenants other than the Designated Tenants, Seller
shall be obligated to execute and deliver to Purchaser (and Purchaser shall be
obligated to accept) Seller Estoppel Certificates covering the particular
tenants necessary so that Purchaser shall receive, at Closing, Required Estoppel
Certificates and Seller Estoppel Certificates with respect to the Required
Tenants, provided that Seller shall have the option to choose the particular
tenants with respect to whom Seller Estoppel Certificates shall be delivered.
In the event that Seller deliver such Seller Estoppel Certificates, Seller shall
be deemed to have represented and warranted to the "Actual Knowledge of Seller"
(as hereinafter defined) each item of information contained in any such Seller
Estoppel Certificate delivered to Purchaser as to each Lease covered thereby,
which representation and warranty as to each such item of information shall
survive for a period terminating on the earlier of (i) one hundred eighty (180)
days from the Closing Date, or (ii) the date on which Purchaser has received an
executed Required Estoppel Certificate signed by the tenant under the Lease in
question. Notice of any claim as to a breach of any representations or
warranties made in a Seller Estoppel Certificate must be made to Seller prior to
13
expiration of the period described in the preceding sentence or it shall be
deemed to be a waiver of the right to assert such claim.
D. Should Seller be required to provide to Purchaser at Closing
Seller Estoppel Certificates and/or certified copies of Leases in accordance
with Section 4(B)(i)(k) above, Seller may, but shall not be obligated to,
provide to Purchaser after Closing additional Estoppel Certificates received by
Seller after Closing in substitution of any of the aforesaid Seller Estoppel
Certificates and/or certified copies of Leases.
E. In the event that Seller delivers certified copies of Leases in
accordance with Section 4(B)(i)(k) above, Seller's liability under such
certifications shall survive for a period terminating on the earlier of (1) one
hundred eighty (180) days from the Closing Date, and (2) the date on which an
executed Estoppel Certificate signed by the tenant under the Lease in question
is received by Purchaser.
F. If any Estoppel Certificates or Seller Estoppel Certificates
contain statements or allegations that a default or potential default exists on
the part of Seller under the Lease in question and (i) the existence or the
substance of such allegations or statements were contained in any "Disclosures"
(as defined in Section 11(H) below) prior to the date of this Agreement, or (ii)
prior to the date of this Agreement, Purchaser otherwise obtained actual
knowledge of facts revealing the substance of such statements or allegations, or
(iii) Seller otherwise disclosed in writing the existence or the substance of
such allegations or statements prior to the date of this Agreement, or (iv)
Purchaser elects that Closing occur notwithstanding the existence of such
default of potential default, then such Estoppel Certificates and Seller
Estoppel Certificates shall be deemed acceptable for purposes of this Section 9,
notwithstanding the existence of such allegations or statements and Seller shall
have no liability to Purchaser hereunder with respect to the existence of such
allegations, statements or information. In addition, in the event that such a
default by Seller does actually exist, such default is not included within the
items set forth in subclauses (i), (ii) or (iii) of the preceding sentence and
such default is reasonably susceptible to cure by Seller prior to Closing,
Seller shall cure such default.
10. SELLER'S REPRESENTATIONS AND WARRANTIES
---------------------------------------
A. Seller represents and warrants to Purchaser the following:
(i) As of the date of this Agreement, to the "Actual Knowledge
of Seller" (as hereinafter defined), except as set forth on
EXHIBIT H attached hereto, Seller has received no written
notice from any governmental authority of any material
violation of any, state or federal law, rule or regulation
concerning the Property or any part thereof which has not
been cured prior to the date of this Agreement; provided,
however, that Seller makes no representation or warranty
with respect to (A) the information or matters disclosed in
the items set forth in EXHIBIT P attached hereto, and (B)
the Property's compliance with the American with
Disabilities Act.
(ii) The list attached hereto as EXHIBIT C lists all of the
Service Contracts as of the date of this Agreement, the
service provided thereunder, the vendor under each Service
Contract and, if such Service Contract is written, the date
of such Service Contract.
14
(iii) Except as set forth on EXHIBIT I attached hereto, as of
the date of this Agreement, Seller has received no written
notice of any pending litigation with respect to the
Property which would affect the Property after Closing.
(iv) Prior to the date of this Agreement, Seller has calculated
the reconciliation of Operating Expenses and Operating
Expense Reimbursements for calendar year 1996 and has billed
the tenants for any remaining amounts owed to Seller as a
result of such reconciliation. In those instances where a
refund is owed to a tenant, Seller has either refunded such
amount to the tenant in question, offset such refund
against amounts owed to Seller by the tenant or offset such
refund against present and/or future amounts of Base Rent or
Operating Expense Reimbursements to be paid by the
tenant(s).
(v) To the actual knowledge of Seller and with the exception of
any leasing commissions owed in connection with the New
Leases set forth on EXHIBIT S and any other New Leases
executed after the date of this Agreement, there are no
leasing commissions due and payable in connection with any
of the Leases.
B. When used in this Agreement, the term "Actual Knowledge of Seller"
shall mean and be limited to the actual (and not imputed, implied or
constructive) current knowledge of Xxxxxx Xxxxxxxxx, Director - Dispositions of
Equity Office Holdings, L.L.C., a Delaware limited liability company ("EOH") and
Xxxx Xxxxxx, Regional Vice President of the management company for the Property,
Equity Office Properties, L.L.C., a Delaware limited liability corporation.
Notwithstanding anything herein to the contrary, neither Xxxxxx Xxxxxxxxx nor
Xxxx Xxxxxx shall have any personal liability or liability whatsoever with
respect to any matters set forth in this Agreement or any of Seller's
representations and/or warranties herein being or becoming untrue, inaccurate or
incomplete in any respect (it being understood that, subject to the provisions
of this Agreement, Seller's liability under this Agreement is not limited by the
limitation on personal liability of such individuals).
C. The representations and warranties set forth in this Section 10
shall, subject to Section 9(F) and Section 10(F), be deemed to be remade as of
Closing and shall survive the Closing and the delivery of the Deed for a period
of one hundred eighty (180) days from the Closing Date. Notice of any claim as
to a breach of any such representations or warranties must be made to Seller
prior to the expiration of such one hundred eighty (180) day period or it shall
be deemed a waiver of the right to asset such claim.
D. Seller does not represent and warrant that any particular Service
Contract will be in force or effect as of the Closing or that tenants under
Leases or the parties to the Service Contracts will not be in default under
their respective Leases or Service Contracts, and neither the existence of any
default by any tenant under its Lease nor the default of any party under any
Service Contract shall affect the obligations of Purchaser hereunder; provided,
however, the foregoing shall not affect the conditions contained in Section 9
above.
E. As and to the extent that Purchaser or its representatives review
any Disclosures prior to the date of this Agreement and such documents or
materials contain information inconsistent with or different from the
representations and warranties set forth in Section 10(A) above, or prior to the
15
date of this Agreement Purchaser otherwise obtains actual knowledge of facts or
Seller otherwise discloses in writing to Purchaser facts that are inconsistent
with or different from the representations and warranties made in Section 10(A),
then as of the date of this Agreement such representations and warranties shall
be deemed modified to conform them to the information set forth in such
documents and materials or to such other facts.
F. As and to the extent that (i) Purchaser obtains actual knowledge
of facts, or (ii) any Estoppel Certificates, Seller Estoppel Certificates or
other documents with respect to Leases and/or matters addressed by Section 10(A)
contain information or facts that are inconsistent with or different from the
representations and warranties made in Section 10(A) are received by Purchaser
or received by Seller and delivered to Purchaser prior to the Closing, and
Purchaser elects to proceed to Closing and the Closing occurs, then the
representations and warranties in Section 10(A) shall be deemed to be modified
and/or superseded by such certificates or other documents (and, in such event,
Seller shall no longer have any liability hereunder with respect to the portion
of the representation or warranty superseded herein, as applicable); provided,
however, the foregoing shall not affect the conditions contained in Section 9
above.
11. MISCELLANEOUS
-------------
A. All understandings and agreements heretofore had between Seller
and Purchaser with respect to the Property are merged in this Agreement, which
alone fully and completely expresses the agreement of the parties. Purchaser
further acknowledges that, except as expressly provided in this Agreement,
neither Seller nor any agent or representative of Seller has made, and Seller is
not liable for or bound in any manner by, any express or implied warranties,
guaranties, promises, statements, inducements, representations or information
pertaining to the Property.
B. Except for an assignment to a "Permitted Assignee" (as hereinafter
defined), neither this Agreement nor any interest hereunder shall be assigned or
transferred by Purchaser without the written consent of Seller, which consent
may be withheld in the sole and absolute discretion of Seller. For purposes of
this Agreement, the term "Permitted Assignee" shall be defined to mean either:
(i) a partnership, corporation or limited liability company affiliated with
Tricony Florida Corporation or in which Tricony Florida Corporation and/or
Xxxxxx Xxxxxx is a member, partner or shareholder, as applicable, or (ii) a
partnership, corporation or limited liability company in which Xxxxxx Xxxxxx is
a controlling shareholder of the entity (in the case of a corporation), of the
general partner (in the case of a limited partnership), or of the managing
member (in the case of a limited liability company). Upon an assignment to a
Permitted Assignee such Permitted Assignee shall execute and deliver an
agreement to Seller in which such Permitted Assignee assumes all of the
obligations of Purchaser under this Agreement. Upon an assignment of this
Agreement to a Permitted Assignee: (1) Purchaser shall not be relieved of any
subsequently accruing liability under this Agreement, and (2) as used in this
Agreement, the "Purchaser" shall be deemed to include such Permitted Assignee.
Seller may assign or otherwise transfer its interest under this Agreement. As
used in this Agreement, the term "Seller" shall be deemed to include any
assignee or other transferee of any Seller. Upon any such transfer by a Seller,
such Seller shall be relieved of any subsequently accruing liability under this
Agreement. Subject to the foregoing, this Agreement shall inure to the benefit
of and shall be binding upon Seller and Purchaser and their respective
successors and assigns.
C. This Agreement shall not be modified or amended except in a
written document signed by Seller and Purchaser.
16
D. Time is of the essence of this Agreement.
E. This Agreement shall be governed and interpreted in
accordance with the laws of the State of Florida.
F. All notices, requests, demands or other communications required or
permitted under this Agreement shall be in writing and delivered (i) personally,
(ii) by certified mail, return receipt requested, postage prepaid, (iii) by
overnight courier (such as Federal Express), or (iv) by facsimile transmission
(with a copy sent via (i), (ii) or (iii)), addressed as follows:
1. If to Seller:
c/o Equity Office Holdings, L.L.C.
Two Xxxxx Xxxxxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxxxxx Xxxxxxxxx
With a copy to:
Xxxxxxxxx & Xxxxxxxxxxx, P.C.
Suite 0000
Xxx Xxxxx Xxxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxx
0. If to Purchaser:
Tricony Florida Corporation
000-0/0 Xxxxx Xxxxxx
Xxxxx 0-X
Xxxx Xxxxx, Xxxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxxxxx Xxxxxx
17
With a copy to:
Broad and Xxxxxx
000 Xxxxx Xxxxxxxx Xxxx.
Xxxxx, Xxxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxxxxx X. Xxxxxx
All notices given in accordance with the terms hereof shall be deemed received
(1) when delivered, if personally delivered, (2) forty-eight (48) hours after
posting, if sent by certified mail, return receipt requested, postage prepaid,
(3) the next business day after deposit with the courier company, if sent by
overnight courier, and (4) on the day sent, if sent by facsimile transmission
prior to the close of the recipient's business day. Either party hereto may
change the address for receiving notices, requests, demands or other
communication by notice sent in accordance with the terms of this Section 11(F).
G. Purchaser's right of inspection pursuant to Section 8 above shall
be subject to the rights of tenants under the Leases and other occupants and
users of the Property. No inspection shall be undertaken without at least
forty-eight (48) hours prior notice to Seller, or EOH, on behalf of Seller.
Seller shall have the right to be present at any or all inspections. Seller's
designated representative for such inspections of the Property is Xxxxxx
Xxxxxxxxx of EOH (telephone (312)/000-0000; facsimile 312/559-5051). Neither
Purchaser nor its agents or representatives shall contact any tenants without
the prior consent of Seller. No inspection shall involve the taking of samples
or other physically invasive procedures without the prior consent of Seller.
Notwithstanding anything to the contrary contained in this Agreement, Purchaser
shall indemnify and hold Seller and its employees and agents, and each of them,
harmless from and against any and all losses, claims, damages and liabilities
(including, without limitation, reasonable attorneys' fees incurred in
connection therewith) arising out of or resulting from Purchaser's exercise of
its rights of inspection as provided for in Section 8 above. The provisions of
this Section 11(G) shall survive the Closing or other termination of this
Agreement.
H. Acknowledging the prior use of the Property and Purchaser's
opportunity to inspect the Property and except as specifically provided in this
Agreement, Purchaser agrees to take the Property "as is" with all faults and
conditions thereon. Any information, reports, statements, documents or records,
including, without limitation, the items set forth in EXHIBIT P (collectively,
the "Disclosures") provided or made to Purchaser or its constituents by Seller,
its agents, employees, contractors or representatives, concerning the Property
shall not be representations or warranties. Purchaser shall not rely on such
Disclosures, but rather, Purchaser shall rely only on its own inspection of the
Property. PURCHASER ACKNOWLEDGES AND AGREES THAT, EXCEPT AS EXPRESSLY PROVIDED
IN THIS AGREEMENT, NEITHER SELLER NOR ITS AGENTS, EMPLOYEES, CONTRACTORS OR
REPRESENTATIVE HAS MADE, AND NONE OF THEM MAKES AND EACH SPECIFICALLY DISCLAIMS
ANY STATEMENTS, REPRESENTATIONS, WARRANTIES, PROMISES, COVENANTS, AGREEMENTS OR
GUARANTIES OF ANY KIND OR CHARACTER WHATSOEVER, WHETHER EXPRESS OR IMPLIED, ORAL
OR WRITTEN, PAST, PRESENT OR FUTURE, OF, AS TO, CONCERNING OR WITH RESPECT TO
(A) THE NATURE, QUALITY OR CONDITION OF THE PROPERTY, INCLUDING, WITHOUT
LIMITATION, THE WATER, SOIL AND GEOLOGY, (B) THE INCOME HERETOFORE DERIVED OR TO
BE DERIVED
18
FROM THE PROPERTY, (C) THE SUITABILITY OF THE PROPERTY FOR ANY AND ALL
ACTIVITIES AND USES WHICH PURCHASER MAY CONDUCT THEREON, (D) THE COMPLIANCE OF
OR BY THE PROPERTY OR ITS OPERATION WITH ANY LAWS, RULES, ORDINANCES OR
REGULATIONS OF ANY APPLICABLE GOVERNMENTAL AUTHORITY OR BODY, (E) THE
HABITABILITY, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OF THE
PROPERTY, OR (F) ANY OTHER MATTER WITH RESPECT TO THE PROPERTY, AND SPECIFICALLY
DISCLAIM ANY REPRESENTATIONS REGARDING TERMITES OR WASTES, AS DEFINED BY THE
U.S. ENVIRONMENTAL PROTECTION AGENCY REGULATIONS AT 40 C.F.R., OR ANY HAZARDOUS
SUBSTANCE, AS DEFINED BY THE COMPREHENSIVE ENVIRONMENTAL RESPONSE COMPENSATION
AND LIABILITY ACT OF 1980 ("CERCLA"), AS AMENDED, AND REGULATIONS PROMULGATED
THEREUNDER.
Purchaser, its successors and assigns, hereby waive, release and agree
not to make any claim or bring any cost recovery action or claim for
contribution, indemnity or other action or claim against Seller or its
affiliates, directors, officers, employees, agents, attorneys, or assigns
(collectively, "Seller and its Affiliates") (a) under any federal, state, or
local environmental or health and safety law or regulation, including CERCLA or
any state equivalent, or any similar law now existing or hereafter enacted, (b)
with respect to, in connection with or resulting from any discharge, disposal,
release, or escape of any chemical, or any hazardous or toxic material
whatsoever, on, at, to, or from the Property; or (c) any environmental
conditions whatsoever on, under, or in the vicinity of the Property.
I. In any lawsuit or other proceeding initiated by Purchaser under or
with respect to this Agreement, Purchaser waives any right it may have to trial
by jury.
J. Purchaser acknowledges that all information with respect to the
Property furnished or to be furnished to Purchaser is, has been and will be so
furnished on the condition that Purchaser maintain the confidentiality thereof.
Accordingly, Purchaser shall, and shall cause its directors, officers and other
personnel and representatives to, hold in strict confidence, and not disclose to
any other party without the prior written consent of Seller and unless the
Closing occurs: (i) any of the information with respect to the Property
delivered to Purchaser by Seller or any of its agents, representatives or
employees, or (ii) the existence of this Agreement or any term or condition
thereof, or (iii) the results of any inspections or studies undertaken in
connection herewith. In addition, neither Purchaser nor Purchaser's directors,
officers and other personnel and representatives shall solicit offers to
purchase the Property to any other party without the prior written consent of
Seller and unless the Closing occurs. Notwithstanding the above, Purchaser may
disclose such information to individuals or entities necessary for Purchaser to
consummate the transaction contemplated herein (such as attorneys, lenders,
engineers, prospective management companies, environmental consultants,
accountants and tax advisors) and as required by law. Purchaser shall require
that any parties to whom the existence of this Agreement or any information with
respect to the Property is disclosed execute a confidentiality agreement wherein
the party agrees not to disclose the existence of this Agreement or information
with respect to the Property to anyone. In the event the Closing does not occur
and this Agreement is terminated, Purchaser shall, upon written request by
Seller, promptly return to Seller all copies of all such information without
retaining any copy thereof or extract therefrom.
K. If for any reason Purchaser does not consummate the Closing, then
Purchaser shall, upon Seller's request, assign and transfer to Seller all of its
right, title and interest in and to any and all studies, reports, surveys and
other information, data and/or documents relating to the Property or any
19
part thereof prepared by or at the request of Purchaser, its employees and
agents, and shall deliver to Seller copies of all of the foregoing.
L. Seller and Purchaser further agree as follows:
1. From and after the date of the Letter of Intent through the
Closing, Seller has delivered or shall deliver, as applicable, for
Purchaser's review (a "New Lease Notice"), a copy of any proposed new
Lease, or any modification, amendment, restatement or renewal of any
existing Lease (individually, a "New Lease" and collectively, "New
Leases") together with copies of any information submitted by the
prospective tenant to Seller with respect to such New Lease. In
addition, Seller shall also submit to Purchaser for Purchaser's review
a summary of any leasing or brokerage commissions payable in
connection with such New Lease and, if a written agreement exists
between Seller and the leasing broker entitled to be paid a commission
in connection with such New Lease and Seller has a copy of same, a
copy of such written agreement. During the period between the date of
this Agreement and Closing, Purchaser shall have the right to approve
or disapprove of any New Lease and any related costs that would be
incurred by the landlord under such New Lease, such as
leasing/brokerage commissions, rent abatements, construction or
buildout costs and construction allowances, by responding in writing
to Seller's New Lease Notice within five (5) days after Purchaser's
receipt of the New Lease Notice. If Purchaser fails to approve or
disapprove of such New Lease within such five (5) day period,
Purchaser shall be deemed to have conclusively approved of such New
Lease and all such related costs.
2. All tenant improvement costs and/or allowances and leasing
commissions relating to (a) New Leases entered into by Seller during
the period between May 20, 1997 and the date of this Agreement, and
(b) New Leases entered into by Seller after the date of this Agreement
which Purchaser approves (or is deemed to approve) in accordance with
Section 11(L)(1) above, shall be prorated in accordance with Section
4(C)(i)(c) above. In addition, should the timing and scope of work to
be performed by the lessor under such New Leases require Seller to
enter into contracts with contractors or other parties prior to
Closing in order to comply with the lessor's obligations under such
New Leases, Seller shall submit the proposed contract with such
contractor or other parties to Purchaser for its approval (not to be
unreasonably withheld). If Purchaser fails to approve or disapprove
of such contract within five (5) days after its receipt of same,
Purchaser shall be deemed to have conclusively approved of such
contract. If such contract results in work for which the provider or
subcontractor thereunder may obtain a lien against the Property if
such work is not paid for, then the "Permitted Exceptions" shall be
deemed to include any potential liens and related notices of
commencement as a result thereof.
M. Seller and Purchaser hereby designate Escrowee to act as and
perform the duties and obligations of the "reporting person" with respect to the
transaction contemplated by this Agreement for purposes of 26 C.F.R. Section
1.6045-4(e)(5) relating to the requirements for information reporting on real
estate transaction closed on or after January 1, 1991. In this regard, Seller
and Purchaser each agree to execute at Closing, and to cause the Escrowee to
execute at Closing, a Designation Agreement, designating Escrowee as the
reporting person with respect to the transaction contemplated by this Agreement.
20
N. This Agreement may be executed in two or more counterparts, each
of which shall be deemed to be an original and all of which taken together shall
constitute one and the same instrument.
O. Seller and Purchaser acknowledge and agree that neither this
Agreement nor a memorandum thereof shall be recorded against the Property.
P. Purchaser acknowledges and agrees that any recovery against Seller
that Purchaser may be entitled to as a result of any claim, demand or cause of
action that Purchaser may have against Seller with respect to this Agreement and
the transactions contemplated herein shall only be recoverable against Seller in
an amount not in excess of One Million Dollars ($1,000,000.00).
Q. In the event of a conflict between the terms and provisions of the
Confidentiality Agreement and this Agreement, the terms and provisions of this
Agreement shall control.
R. Except as specifically provided for herein, the representations,
warranties, covenants and agreements of Seller set forth in this Agreement
shall not survive the Closing.
S. Except as specifically provided herein, no third parties shall
have the benefit of any of the provisions of this Agreement, nor is this
Agreement made with the intent that any person or entity other than Seller and
Purchaser shall rely hereon.
T. Pursuant to Section 404.05618, Florida Statutes (1988), the
following notification regarding radon gas is hereby made, and all parties
executing this Agreement acknowledge receipt of this notification:
RADON GAS: "RADON IS A NATURALLY
OCCURRING RADIOACTIVE GAS THAT, WHEN
IT HAS ACCUMULATED IN A BUILDING IN
SUFFICIENT QUANTITIES, MAY PRESENT
HEALTH RISKS TO PERSONS WHO ARE EXPOSED
TO IT OVER TIME. LEVELS OF RADON THAT
EXCEED FEDERAL AND STATE GUIDELINES
HAVE BEEN FOUND IN BUILDINGS IN FLORIDA.
ADDITIONAL INFORMATION REGARDING RADON
TESTING MAY BE OBTAINED FROM YOUR COUNTY
PUBLIC HEALTH UNIT".
U. Under that certain Leasing Agreement (the "Leasing Agreement")
dated as of July 1, 1992 by and between First Office Management, a division of
Equity Property Management Corp., for itself and as agent for Seller, and
Xxxxxxx (as successor-in-interest to Xxxxxxx Xxxxx Hampton) (which Leasing
Agreement is one of the Service Contracts set forth on EXHIBIT C attached
hereto), the owner of the Property is obligated to pay a commission to Xxxxxxx
with respect to any "New Lease" (as defined in the Leasing Agreement) entered
into within one hundred twenty (120) days after sale of the Property. Set forth
on EXHIBIT N attached hereto is a list of prospective tenants provided to Seller
by Xxxxxxx under Section 3.6 of the Leasing Agreement in anticipation of the
Closing. Purchaser agrees to pay Xxxxxxx a commission in accordance with the
Leasing Agreement in the event that the Closing occurs and,
21
subsequent to Closing, Purchaser enters into such a "New Lease" within one
hundred twenty (120) days of Closing with any party set forth on EXHIBIT N
attached hereto, as such EXHIBIT N is revised at or prior to Closing.
V. Seller is currently utilizing the "MRI" brand of accounting
software at the Property to account for activities at the Property. At Closing,
Seller shall deliver to Purchaser a copy of all of Seller's data files for each
tenant utilized in connection with such software (that is, the electronic
information with respect to each tenant's payment history and account balance),
such delivery to be subject to the following:
(i) Purchaser acknowledges and agrees that Purchaser shall not
be entitled to the use of Seller's and/or the existing
property management company's license for the use of such
software;
(ii) Purchaser acknowledges and agrees that, notwithstanding any
other provision of this Agreement, Seller shall not be
deemed to have made any representation and/or warranty as to
the accuracy or completeness of the electronic information
to be delivered under this Section 11(V); and
(iii) Purchaser acknowledges and agrees that Seller shall have no
liability to Purchaser (or any party who acquires such
information from Purchaser) with respect to the information
or any use thereof.
W. During Purchaser's inspection of the Property prior to the date of
this Agreement, Purchaser noted that water staining was present in the penthouse
of the office building located on the Real Property. Seller believes that such
staining is as a result of a faulty repair of the roof of the penthouse by an
outside contractor prior to the date of this Agreement. Prior to Closing, Seller
shall request that such outside contractor repair the portion of the roof of the
penthouse causing such water staining. It is expressly understood and agreed
that Seller, as more particularly set forth in Section 11(H) above, makes no
representation or warranty as to the condition of the penthouse roof prior to or
subsequent to such repair and shall have no liability to Purchaser if the
contractor does not perform such repair properly. In the event that such
contractor does not come out to the Property and repair the roof prior to
Closing to the reasonable satisfaction of Purchaser, Purchaser's sole and
exclusive remedy shall be to terminate this Agreement and receive a refund of
the Xxxxxxx Money, in which event this Agreement shall be null and void and
neither party shall have any rights or obligations under this Agreement, subject
to Seller's recourse against Purchaser under Section 6 above, Section 11(G)
above and the Confidentiality Agreement. At Closing, Seller shall assign
(without warranty of any kind, other than a warranty as to no prior assignments)
all of Seller's right, if any, in and to such warranty from the contractor with
respect to such roof repair.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY BLANK]
22
[Signature page to Real Estate Sale Agreement]
IN WITNESS WHEREOF, Seller and Purchaser have executed and delivered this
Agreement as of the date first above written.
SELLER:
SOUTH ORANGE AVENUE ASSOCIATES, an Illinois joint
venture
By: FIRST CAPITAL INCOME PROPERTIES, LTD.-SERIES
IX, a Florida limited partnership
By: FIRST CAPITAL FINANCIAL CORPORATION, a
Florida corporation, its general
partner
By:____________________________________
Name:__________________________________
Its:___________________________________
By: FIRST CAPITAL SERIES IX, INC.,
an Illinois corporation
By:____________________________________
Name:__________________________________
Its:___________________________________
PURCHASER:
TRICONY FLORIDA CORPORATION, a Florida corporation
By:_______________________________________________
Name:_____________________________________________
Its:______________________________________________
23
LIST OF EXHIBITS
----------------
A - Legal Description
B - Permitted Exceptions
C - Service Contracts
D - Joint Order Escrow Agreement
E - Assignment and Assumption of Leases
F - Assignment and Assumption of Service Contracts
G - Form Tenant Estoppel Certificate
H - Notices of Violations of Laws
I - List of Litigation
J - Xxxx of Sale
K - Personal Property
L - Notice Letter to Tenants
M - Notice Letter to Vendors/Licensees under Service Contracts
N - Prospective Tenants - Xxxxxxx
O - OSHA Letter
P - Environmental Reports
Q - Security Deposits
R - Special Warranty Deed
S - List of New Leases
T - Designated Tenants
U - Form Seller Estoppel Certificate
EXHIBIT A
LEGAL DESCRIPTION
------------------
Xxxxx 00, X.X. XXXX'X ADDITION TO ORLANDO, as recorded in Plat Book C, pages 62
and 63, of the public records of Orange County, Florida. LESS: The East 5.00
feet thereof; AND LESS: Beginning at the Northwest corner of Xxx 0, Xxxxx 00,
X.X. XXXX'X ADDITION TO ORLANDO, as recorded in Plat Book C, pages 62 and 63, of
the public records of Orange County, Florida, run South 00(degree)01'07" East
134.93 feet along the West boundary line of said Block 22; thence run North
89(degree)53'19" East 15.40 feet; thence run South 00(degree)01'07" East 13.17
feet; thence North 89(degree)58'50" East 426.35 feet to a point on a line
parallel with and 5.00 feet Westerly of, when measured at right angles to the
East boundary of said Block 22; thence run North 00(degree)01'07" West 147.93
feet along said parallel line to a point on the North boundary of said Block 22;
thence run West 441.75 feet along said North boundary to the Point of Beginning;
AND ALSO LESS: From the Southeast corner of Xxx 00, Xxxxx 00, X.X. XXXX'X
ADDITION TO ORLANDO, as recorded in Plat Book C, pages 62 and 63, of the public
records of Orange County, Florida, run West 5.00 feet along the South boundary
of said Block 22 for the Point of Beginning; thence North 00(degree)01'07" West
133.06 feet along a line 5.00 feet West of, when measured at right angles to,
the East boundary of said Block 22; thence North 89(degree)55'33" West 163.53
feet; thence South 00(degree)08'48" West 6.13 feet; thence South
89(degree)51'12" East 8.82 feet; thence South 00(degree)03'37" West 127.12 feet;
thence East 154.91 feet along the aforesaid South boundary of Block 22 to the
Point of Beginning.
EXHIBIT B
PERMITTED EXCEPTIONS
--------------------
1. Acts of Purchaser, and those claiming by, through and under Purchaser.
2. General and special taxes and assessments which are not shown as existing
liens by the public records.
3. Rights of tenants under the Leases, and those claiming by, through and
under said tenants.
4. Zoning, building and other governmental and quasi-governmental laws, codes
and regulations.
5. Any claim that any portion of the property is sovereign lands of the State
of Florida including submerged, filled or artificially exposed lands and
lands accreted to such lands.
6. Covenants, conditions, restrictions, and private or public utility
easements of record.
7. Encroachments, overlaps, boundary line disputes, or other matters which
would be disclosed by an accurate survey or inspection of the Property.
8. Easements, or claims of easements, not shown by the public records.
9. Taxes and assessment for the year 1997 and subsequent years.
10. Utility Easement in favor of City of Orlando, a municipal corporation
existing under the laws of the State of Florida, and the Orlando Utilities
Commission, a statutory commission organized and existing under the laws of
the State of Florida, dated November 24, 1971, and recorded May 23, 1972 in
Official Records Book 2225, at page 689, of the public records of Orange
County, Florida.
11. Unrecorded Easement for Construction and Maintenance from 255 South Orange
N.V. to the City of Orlando, dated May 1, 1984.
12. Easement for pedestrian bridge and access rights to connect Xxxxxxx Plaza
Garage to the Xxxxxxx Plaza property contained in Special Warranty Deed
(Xxxxxxx Plaza Garage) from 000 Xxxxx Xxxxxx Incorporated to Xxxxxxx Plaza
Joint Venture, dated January 2, 1986, and recorded January 8, 1986, in
Official Records Book 3735, at page 2298, of the public records of Orange
County, Florida.
13. Easement for Encroachment from 000 Xxxxx Xxxxxx Incorporated, to Xxxxxxx
Plaza Joint Venture, dated January 3, 1986, and recorded January 8, 1986,
in Official Records Book 3735, page 2307, of the public records of Orange
County, Florida.
14. Easement for Encroachment (Xxxxxxx Plaza Garage) from 000 Xxxxx Xxxxxx
Incorporated, to Xxxxxxx Plaza Joint Venture, dated January 3, 1986, and
rerecorded January 23, 1986, in Official Records Book 3741, page 2596, of
the public records of Orange County, Florida.
15. Sidewalk Easement in favor of the City of Orlando, Florida recorded in
Official Records Book 4710, page 2805, of the public records of Orange
County, Florida.
16. The Financing Statement from Carlton, Fields, Xxxx, Xxxxxxxx, Xxxxx &
Xxxxxx, P.A., "Debtor", to First Union National Bank of Florida, "Secured
Party", and filed January 10, 1995, in Official Records Book 4841, page
4649, of the public records of Orange County, Florida (this exception will
appear as a "note" only on the owner's title insurance policy).
17. Any lien, or right to a lien, for services, labor, or material heretofore
or hereafter furnished which may be imposed by law by virtue of the filing
of that certain Notice of Commencement recorded April 14, 1997, in Official
Records Book 5233, page 1164, of the public records of Orange County,
Florida (this exception shall only appear on title at Closing if Seller is
unable to complete the replacement of the lobby doors prior to Closing, as
more particularly provided for in EXHIBIT H attached hereto).
18. Any lien, or right to a lien, for services, labor, or material heretofore
or hereafter furnished which may be imposed by law by virtue of the filing
of that certain Notice of Commencement recorded March 5, 1997, in Official
Records Book 5210, page 4675, of the public records of Orange County,
Florida (this exception will appear as a "note" only on the owner's title
insurance policy).
EXHIBIT C
SERVICE CONTRACTS
-----------------
VENDOR/LICENSEE TYPE OF SERVICE
ANI Site Development Rooftop Managers
Bellsouth Telecommunications Lobby Pay Phone
Central Parking System (Management Agreement) Parking Garage
Central Parking System (Equipment Lease) Parking Garage
Executone Telephone
Guard Technologies (GTI) Uniformed Security
Guard Technologies (GTI) Monitoring Service
Xxxxxx'x Office Systems Copier Service & Maintenance
JMC Services Janitorial
Maidenbrook Water Cooler & Bottled Water
Xxxxxxxxxx Xxxx Inc. Elevator Maintenance
Motorola (verbal contract) Maintenance of Two-Way Radios
National Uniform Service Engineers' Uniforms
Nextel (verbal contract) Radio Airtime for Two-Way Radios
PageNet Paging Network of Orlando Pagers
Xxxxxxx Realty, Inc. (f/k/a Xxxxxxx-Xxxxx, Hampton) Leasing Agreement
Plantscape House Plant & Container--Lease & Maintenance
X.X. Xxxxxx Pest Service Extermination
SOS Technologies Emergency Training
Sentry Alarm Fire Alarm Monitor
VOA Space Planning
Waste Management Trash Removal
Xxxxx Automatic Fire Sprinklers, Inc. Inspections/Fire Sprinklers
ICC Capital Management, Inc. Antenna License
Intermedia Communications of Florida Telecommunications License Agreement
Investment Counsel Company Antenna License
MCI Metro Access Telecommunications License Agreement
Motorola Antenna License
TCI of Central Florida Antenna License
EXHIBIT D
JOINT ORDER ESCROW AGREEMENT
----------------------------
CITRUS CENTER
ORLANDO, FLORIDA
Date: June __, 1997
TO: Xxxxxxx & Xxxxx
000 Xxxx Xxxxxxx Xxxxxxxxx
Xxxxx 0000
Xxxxx, Xxxxxxx 00000
Attention: Xxxx X. Xxxxxxxxx, Esq.
The amount of Five Hundred Thousand Dollars ($500,000.00) together with any
accrued interest thereon deposited with you by Broad and Xxxxxx (the "Escrow
Deposit") is deposited with you in escrow on behalf of Tricony Florida Company,
a Florida corporation, the "Purchaser" under that certain Real Estate Sale
Agreement (the "Contract"), dated June __, 1997 with South Orange Avenue
Associates, an Illinois joint venture, as the "Seller", with respect to the
purchase and sale of the property commonly known as Citrus Center, 000 X. Xxxxxx
Xxxxxx, Xxxxxxx, Xxxxxxx.
As escrowee, you are hereby directed to hold, deal with and dispose of the
Escrow Deposit in accordance with the following terms and conditions:
1. You are to hold the Escrow Deposit until: (a) you are in receipt of a joint
order by the undersigned Seller and Purchaser as to the disposition of the
Escrow Deposit which may be contained in the closing statement executed in
connection with the above referenced purchase and sale; or (b) you are in
receipt of a written demand (the "Demand") from either Seller or Purchaser
for the payment of the Escrow Deposit or any portion thereof. Upon receipt
of any Demand, you are directed to so notify the non-demanding party,
enclosing a copy of the Demand. If within five (5) business days after the
non-demanding party has received or is deemed to have received your notice
of your receipt of the Demand, you have not received from the non-demanding
party its notice of objection to the Demand, then you are to disburse the
Escrow Deposit as requested by the Demand. If within said five business-
day period you receive from the non-demanding party its notice of objection
to the Demand, then you are to continue to hold the Escrow Deposit until
you are in receipt of a joint order as aforesaid, but after sixty (60) days
from the initial Demand you may, at your option, bring an interpleader or
other appropriate action and deposit the Escrow Deposit with a Court of
competent jurisdiction. Upon making such deposit you shall be fully
relieved and discharged from all further obligations hereunder with respect
to the sums so deposited. Notwithstanding the foregoing, if there is any
dispute as to whether or to whom you are obligated to deliver the Escrow
Deposit or any part thereof, you will not be obligated to make any
delivery, but may continue to hold the Escrow Deposit or deposit the Escrow
Deposit with a court, as provided for above.
2. Notwithstanding the foregoing, as escrowee, you are hereby expressly
authorized to regard and to comply with and obey any and all orders,
judgments or decrees entered or issued by any Court, and in case you obey
or comply with any such order, judgment or decree of any Court,
you shall not be liable to either of the parties hereto or any other person
or entity by reason of such compliance, notwithstanding any such order,
judgment or decree be entered without jurisdiction or be subsequently
reversed, modified, annulled, set aside or vacated. In case of any suit or
proceeding regarding these Escrow Instructions, to which you are or may at
any time be a party, the undersigned Seller and Purchaser agree that the
non-prevailing party shall pay to you upon demand all reasonable costs and
expenses incurred by you in connection herewith but solely for costs
incurred in your role as Escrowee.
3. You shall not charge an escrow fee in connection with your role as Escrowee
hereunder.
4. As escrowee, after your receipt of a fully completed and executed Request
for Taxpayer Identification Number and Certification (IRS form W-9), you
shall invest the Escrow Deposit in an interest-bearing account with a
federally-insured bank or savings and loan as association or as otherwise
directed by both Purchaser and Seller in writing. Any interest earned on
the Escrow Deposit, after you deduct your customary investment charges,
shall become and be deemed to be a part of the Escrow Deposit. The FEIN of
Purchaser is ____________________.
5. All notices or other communications hereunder shall be in writing and shall
be personally delivered or sent by overnight courier (such as Federal
Express), by facsimile transmission or by first class United States Mail,
postage prepaid, registered or certified (return receipt requested) to the
respective addresses for the Seller, Purchaser and escrowee as herein
provided, together with copies to the attorneys for Seller and Purchaser at
the addresses for such attorneys set forth in Paragraph 6 below. A notice
is given on the date it is personally delivered, sent by overnight courier
or facsimile transmission, or deposited with the United States Mail for
delivery as aforesaid. A notice is received on the date it is personally
delivered, the day after sent if sent by overnight courier or facsimile
transmission or, if sent by mail as aforesaid, on the date noted on the
return receipt.
6. Either Purchaser or Seller may act hereunder either directly or through its
attorney. The attorney for the Purchaser is:
Broad and Xxxxxx
000 Xxxxx Xxxxxxxx Xxxx.
Xxxxx, Xxxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxxxxx X. Xxxxxx
2
The attorney for the Seller is:
Xxxxxxxxx & Xxxxxxxxxxx, P.C.
Two Xxxxx Xxxxxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxx
0X. Your duties as escrowee do not extend beyond those specifically provided
for herein and are purely ministerial in nature, and you shall incur no
liability whatsoever except for your own fraud, willful misconduct or gross
negligence. Purchaser and Seller shall hold you harmless from any
liability for any loss of the Escrow Deposit or interest thereon caused by
any delay in the deposit or early withdrawal of the Escrow Deposit from the
interest bearing account and for any other act done or omitted to be done
by you in connection with the performance of your duties hereunder, except
to the extent such act or omission constitutes your fraud, willful
misconduct or gross negligence.
6B. Upon your fulfillment of your duties in accordance with the provisions of
this Escrow Agreement, your duties and responsibilities will cease and you
will be released of all liability in connection with this Escrow Agreement
and the Escrow Deposit. You may act in reliance upon any authorization,
acknowledgment or signature which you believe to be genuine and may assume
that any person purporting to give any writing, acknowledgment, notice or
instruction in connection with the provisions of this Escrow Agreement has
been duly authorized to do so. You may rely on demands, instructions, and
authorizations received by telecopy.
6C. Purchaser and Seller acknowledge that you have served and will continue to
serve as special Florida counsel to Seller in connection with the sale of
the above described property. Purchaser and Seller agree that pursuant to
this letter, you are acting as a neutral depository only and no
attorney/client relationship is being created. In addition, Purchaser
agrees that in the event of a dispute arising out of or in connection with
the sale of the property, or the Contract, including any dispute as to the
Escrow Deposit, you will be permitted to continue to act as counsel for
Purchaser in connection with any such dispute, notwithstanding that Xxxxxxx
& Xxxxx is also serving as Escrowee and title agent under the Contract.
Xxxxxxx and Xxxxx'x employment as special Florida counsel for Seller shall
not, however, affect Escrowee's duties and obligations hereunder.
3
7. This Escrow Agreement is being entered into to implement the Contract and
shall not (nor be deemed to) amend, modify or supersede the Contract or act
as a waiver of any rights, obligations or remedies set forth therein;
provided, however, that you may rely solely upon these Escrow Instructions.
SELLER:
SOUTH ORANGE AVENUE ASSOCIATES, an Illinois joint
venture
By: FIRST CAPITAL INCOME PROPERTIES, LTD.-SERIES
IX, a Florida limited partnership
By: FIRST CAPITAL FINANCIAL CORPORATION, a
Florida corporation, its general
partner
By:____________________________________
Name:__________________________________
Its:___________________________________
By: FIRST CAPITAL SERIES IX, INC.,
an Illinois corporation
By:____________________________________
Name:__________________________________
Its:___________________________________
PURCHASER:
TRICONY FLORIDA CORPORATION, a Florida corporation
By:_______________________________________________
Name:_____________________________________________
Its:______________________________________________
4
ADDRESS OF PURCHASER:
Tricony Florida Corporation
000-0/0 Xxxxx Xxxxxx
Xxxxx 0-X
Xxxx Xxxxx, Xxxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxxxxx Xxxxxx
With a copy to:
Broad and Xxxxxx
000 Xxxxx Xxxxxxxx Xxxx.
Xxxxx, Xxxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxxxxx X. Xxxxxx
ADDRESS OF SELLER:
c/o Equity Office Holdings, L.L.C.
Two Xxxxx Xxxxxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
Attention: Xxxxxx Xxxxxxxxx
With a copy to:
Xxxxxxxxx & Xxxxxxxxxxx, P.C.
Two Xxxxx Xxxxxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxx
5
ACCEPTED THIS ____ DAY OF JUNE, 1997
XXXXXXX & XXXXX, as Escrowee
By:_________________________________
Title: ________________________
ADDRESS OF ESCROWEE:
000 Xxxx Xxxxxxx Xxxxxxxxx
Xxxxx 0000
Xxxxx, Xxxxxxx 00000
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
Attention: Xxxx X. Xxxxxxxxx, Esq.
6
EXHIBIT E
ASSIGNMENT AND ASSUMPTION
OF LEASES AND SECURITY DEPOSITS
-------------------------------
THIS ASSIGNMENT AND ASSUMPTION OF LEASES AND SECURITY DEPOSITS (this
"Assignment") is entered into as of the ______________ day of __________, 1997,
by and between SOUTH ORANGE AVENUE ASSOCIATES, an Illinois joint venture,
("Assignor"), having offices at Xxx Xxxxx Xxxxxxxxx Xxxxx, Xxxxxxx, Xxxxxxxx
00000, and TRICONY FLORIDA CORPORATION, a Florida corporation ("Assignee"), with
an office at 000 0/0 Xxxxx Xxxxxx, Xxxxx 0-X, Xxxx Xxxxx, Xxxxxxx 00000.
1. Property. The "Property" shall mean the real property located in the
City of Orlando, County of Orange, State of Florida, legally described in
EXHIBIT A attached to this Assignment, together with the building, structures
and other improvements owned by Assignor and located thereon and commonly known
as "Citrus Center".
2. Leases. The "Leases" shall mean all leases affecting the Property, or
any part thereof, which leases are listed on EXHIBIT B attached hereto. "Lease"
shall mean any one of the Leases.
3. Security Deposits. "Security Deposits" shall mean the Security
Deposits set forth on EXHIBIT C attached hereto held by Assignor in connection
with certain of the Leases.
4. Contract. "Contract" shall mean that certain Real Estate Sale
Agreement dated June __, 1997 by and between Assignor, as Seller, and Assignee,
as Purchaser, for the purchase and sale of the Property.
5. Assignment. For good and valuable consideration received by Assignor,
the receipt and sufficiency of which are hereby acknowledged, Assignor hereby
assigns to Assignee the entire right, title and interest of Assignor in and to
the Leases, the Security Deposits and the Security Deposit Interest as
applicable to the period from and after the date hereof.
6. Assumption. Assignee hereby assumes all of the covenants, agreements
and obligations of Assignor under or in connection with the Leases as applicable
to the period from and after the date hereof, and Assignee further assumes all
liability of Assignor for the proper refund or return of the Security Deposits
if, when and as required by the Leases or otherwise by law. In addition,
Assignee agrees to pay (i) in accordance with Section 4(C)(i)(c) of the
Contract, all brokerage fees, brokerage or leasing commissions and tenant
improvements costs and/or allowances payable in connection with the "New Leases"
(as defined in the Contract) set forth on EXHIBIT D attached hereto, to the
extent that such fees, commissions, costs and allowances were not required to be
paid by Assignor prior to the date hereof; and (ii) to the extent not included
in (i) above, all tenant improvement costs and/or allowances payable in
connection with Leases during the period from and after the date hereof.
7. Indemnification. Assignee hereby unconditionally, absolutely and
irrevocably agrees to indemnify, defend and hold Assignor harmless of, from and
against any and all costs, claims, obligations, damages, penalties, causes of
action, losses, injuries, liabilities and expenses, including, without
limitation, reasonable attorney's fees and expenses, arising out of, in
connection with or accruing under the Leases on or after the date hereof,
including, but not limited to, any such liabilities or expenses
arising in connection with any of the Security Deposits, prepaid rent or other
sums held by Assignee as the landlord under any of the Leases or any brokerage
fees or leasing commissions which are payable with respect to the renewal or
extension of any Lease by tenants accruing from and after the date hereof only.
8. Enforcement. If Assignor or Assignee must resort to a court of law or
equity in order to enforce the provisions of this Assignment as against the
other, the non-prevailing party shall pay the reasonable attorney's fees and
expenses of the prevailing party.
9. Third Parties. Except as set forth in Section 11 of this Assignment,
no third party shall have the benefit of any of the provisions of this
Assignment, nor is this Assignment made with the intent that any person or
entity other than Assignor or Assignee rely hereon.
10. Limited Liability. By accepting this Assignment, Assignee expressly
understands and agrees that any recovery against Assignor that Assignee may be
entitled to as a result of any claim, demand or cause of action that Assignee
may have against Assignor with respect to this Assignment shall only be
recoverable against Assignor as provided in Section 11(P) of the Contract.
11. Successors and Assigns. This Assignment shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and
assigns.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY BLANK]
2
[Signature page attached to Assignment and Assumption of
Leases and Security Deposits]
IN WITNESS WHEREOF, Assignor and Assignee have executed this Assignment the
day and year first above written.
ASSIGNOR:
SOUTH ORANGE AVENUE ASSOCIATES, an Illinois joint
venture
By: FIRST CAPITAL INCOME PROPERTIES, LTD.-SERIES
IX, a Florida limited partnership
By: FIRST CAPITAL FINANCIAL CORPORATION, a
Florida corporation, its general
partner
By:____________________________________
Name:__________________________________
Its:___________________________________
By: FIRST CAPITAL SERIES IX, INC.,
an Illinois corporation
By:____________________________________
Name:__________________________________
Its:___________________________________
ASSIGNEE:
TRICONY FLORIDA CORPORATION, a Florida corporation
By:_______________________________________________
Name:_____________________________________________
Its:______________________________________________
3
EXHIBITS
--------
A - Legal Description of the Property
B - List of Leases
C - Security Deposits
D - New Leases
4
EXHIBIT F
ASSIGNMENT AND ASSUMPTION OF SERVICE CONTRACTS
----------------------------------------------
THIS ASSIGNMENT AND ASSUMPTION OF SERVICE CONTRACTS (this "Assignment") is
entered into as of the ____ day of __________, 1996 by and between SOUTH ORANGE
AVENUE ASSOCIATES, an Illinois joint venture, ("Assignor"), having offices at
Xxx Xxxxx Xxxxxxxxx Xxxxx, Xxxxxxx, Xxxxxxxx 00000, and TRICONY FLORIDA
CORPORATION, a __________ corporation ("Assignee"), with an office at 313 0/0
Xxxxx Xxxxxx, Xxxxx 0-X, Xxxx Xxxxx, Xxxxxxx 00000..
1. Property. The "Property" shall mean the real property located in the
City of Orlando, County of Orange, State of Florida, legally described in
EXHIBIT A attached to this Assignment, together with the building, structures
and other improvements owned by Assignor and located thereon and commonly known
as "Citrus Center".
2. Service Contracts. "Service Contracts" shall mean the service
contracts entered into with respect to the ownership and operation of the
Property that Assignee has assumed hereunder. The Service Contracts are listed
on EXHIBIT B attached to this Assignment.
3. Assignment. For good and valuable consideration received by Assignor,
the receipt and sufficiency of which are hereby acknowledged, Assignor hereby
assigns to Assignee the entire right, title and interest of Assignor in and to
the Service Contracts as applicable to the period from and after the date
hereof.
4. Assumption. Assignee hereby assumes all of the covenants, agreements
and obligations of Assignor under or in connection with the Service Contracts as
applicable to the period from and after the date hereof.
5. Enforcement. If Assignor or Assignee must resort to a court of law or
equity in order to enforce the provisions of this Assignment as against the
other, the non-prevailing party shall pay the reasonable attorney's fees and
expenses of the prevailing party.
6. Third Parties. Except as set forth in Section 10 of this Assignment,
no third party shall have the benefit of any of the provisions of this
Assignment, nor is this Assignment made with the intent that any person or
entity other than Assignor or Assignee shall rely hereon.
7. Indemnification. Assignee hereby unconditionally, absolutely and
irrevocably agrees to indemnify, defend and hold Assignor harmless of, from and
against any and all costs, claims, obligations, damages, penalties, causes of
action, losses, injuries, liabilities and expenses, including, without
limitation, reasonable attorneys' fees and expenses, arising out of, in
connection with or accruing under the Service Contracts which are applicable to
the period on and after the date hereof only.
8. No Representations or Warranties. This Assignment shall not be
construed as a representation or warranty by Assignor as to the transferability
of the Service Contracts, and Assignor shall have no liability to Assignee in
the event that any or all of the Service Contracts (i) are not transferable to
Assignee or (ii) are canceled or terminated by reason of this assignment or any
acts of Assignee.
9. Limited Liability. By accepting this Assignment, Assignee expressly
understands and agrees that any recovery against Assignor that Assignee may be
entitled to as a result of any claim, demand or cause of action that Assignee
may have against Assignor with respect to this Assignment shall only be
recoverable against Assignor as provided in Section 11(P) of the Contract.
10. Successors and Assigns. This Assignment shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and
assigns.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY BLANK]
2
[Signature page attached to Assignment and Assumption of Service Contracts]
IN WITNESS WHEREOF, Assignor and Assignee have executed this Assignment the
day and year first above written.
ASSIGNOR:
SOUTH ORANGE AVENUE ASSOCIATES, an Illinois joint
venture
By: FIRST CAPITAL INCOME PROPERTIES, LTD.-SERIES
IX, a Florida limited partnership
By: FIRST CAPITAL FINANCIAL CORPORATION, a
Florida corporation, its general
partner
By:____________________________________
Name:__________________________________
Its:___________________________________
By: FIRST CAPITAL SERIES IX,
INC., an Illinois corporation
By:____________________________________
Name:__________________________________
Its:___________________________________
ASSIGNEE:
TRICONY FLORIDA CORPORATION, a Florida corporation
By:_______________________________________________
Name:_____________________________________________
Its:______________________________________________
3
EXHIBITS
--------
A - Legal Description of Property
B - Service Contracts
4
EXHIBIT G
FORM TENANT ESTOPPEL CERTIFICATE
--------------------------------
Tricony Florida Corporation
000 0/0 Xxxxx Xxxxxx
Xxxxx 0-X
Xxxx Xxxxx, Xxxxxxx 00000
South Orange Avenue Associates
c/o Equity Office Holdings, L.L.C.
Two Xxxxx Xxxxxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Xxxx Xxxxx Real Estate Services, Inc.
0000 Xxxxx Xxxxx Xxxxxxxxx
Xxxxx 0000
Xxxxxxxxxxxx, XX 00000
Re: [Name of Tenant ]. Suite ___, Citrus Center,
255 S. Orange, Orlando, Florida (the "Property")
Gentlemen:
At the request of South Orange Avenue Associates, an Illinois joint venture
("Landlord"), made in connection with the proposed sale of the Property and
Landlord's interest in the "Lease" (as hereinafter defined) to Tricony Florida
Corporation (together with its successors and assigns "Purchaser"), the
undersigned hereby certifies to Landlord, Purchaser and Purchaser's mortgage
lender, Xxxx Xxxxx Real Estate Services, Inc. ("Lender") and agrees as follows
recognizing that Landlord, Purchaser and Lender will rely on the information
contained herein.
1. The undersigned is the tenant under a lease with Landlord as described
below:
a. Date of tenant's lease:______________________________
b. Date of all amendments or modifications:_________________________
_________________________________________________________________
c. Leased premises: Suite No._________ Floor No.________
d. Leased premises approximate sq. ft.__________________
e. Expiration date of lease:____________________________
f. Unexercised renewal options:_____________________________for_____
______________years each.
g. Security deposit currently held by Landlord: $________
Tricony Florida Corporation
South Orange Avenue Associates
Xxxx Xxxxx Real Estate Services, Inc.
______________, 1997
Page 2
h. Advance or Prepaid Rent: $_______________
i. Unused free rent/rent concessions________________________________
_________________________________________________________________
2. The above lease ([as amended as aforesaid], the "Lease") is in full
force and effect and has not (otherwise) been amended, modified, supplemented or
superseded, and constitutes the entire agreement between the undersigned and
Landlord with respect to said premises. There is no other agreement, oral or
written, (except for the agreements contained herein) between the undersigned
and the Landlord with respect to said premises or any other space at the above-
referenced property, except: [list any other space leased by tenant, including
storage space]. A true, correct and complete copy of the Lease is attached
hereto as EXHIBIT A.
3. The undersigned is not in default under the Lease, except as shown on
SCHEDULE I attached hereto. There is no defense, offset, claim or counterclaim
by or in favor of the undersigned against Landlord under the Lease or against
the obligations of the undersigned against Landlord under the Lease or against
the obligations of the undersigned under the Lease.
4. The Landlord is not in default under the Lease.
5. The undersigned is in sole possession of the leased premises and has
not subleased all or any part of the leased premises, or assigned the Lease,
except as follows: [list assignments or sublease]
6. The monthly base rental due under the Lease is $_________and has been
paid through________199___. All additional base rental, to-wit: estimated
monthly common area, maintenance and real estate taxes, payable in the amount of
$_______per month at the present time, has been paid through __________________,
199___. In addition, monthly sales and use tax due under the Lease, payable in
the amount of $_________ per month at the present time, has been paid through
__________, 199__.
7. There are no actions, voluntary or otherwise, pending against the
undersigned under the bankruptcy, reorganization, moratorium of similar laws of
the United States, any state thereof or any other jurisdiction.
8. The undersigned has accepted possession and taken occupancy of the
premises and has commenced the payment of rents for all space subject to the
Lease.
9. All improvements, build-outs, finished work and any other obligations
of the Landlord under the Lease have been completed and to the best of the
knowledge of the undersigned have been paid for either by the Landlord or the
tenant in full, except as follows: _____________________________
Tricony Florida Corporation
South Orange Avenue Associates
Xxxx Xxxxx Real Estate Services, Inc.
______________, 1997
Page 3
10. The person signing this Certificate is an authorized agent of the
tenant.
11. The "base year" for additional base rental under the Lease is 19__ and
the "basic costs" attributable to such "base year" is $_________________. [Note:
if Lease is a relatively new lease and the base year amounts have not yet been
determined, this provision will be modified to state the "base year" and that
the "basic costs" are to be determined.]
12. We have no expansion option or right of first refusal under Lease to
lease additional space, except as follows:
________________________________________________________________
________________________________________________________________
________________________________________________________________
13. The undersigned hereby acknowledges that the Landlord will be
assigning to Purchaser its right under the Lease from and after the date of such
assignment, including without limitation, the right to receive rents, from and
after the date of such assignment, and the undersigned agrees that upon receipt
by us of a letter from the Landlord to the effect that the closing is taking
place and that rent should thereafter be paid to Purchaser, that we shall make
all payments of rent and common area maintenance and other expenses which may be
chargeable to us from and after the date of such assignment, to Purchaser, as
the new landlord, at the address as contained in said letter.
The undersigned understands that Seller, Purchaser and Lender will rely on
the certifications set forth above and that all such certifications shall enure
to the benefit of Seller, Purchaser and Lender and the benefit of their
successors and assigns, and shall be binding upon the undersigned, its
successors, heirs, legal representatives and assigns.
Sincerely,
[Tenant]
By: ________________________________
Name: __________________________
Title: __________________________
Date: __________________________
EXHIBIT H
NOTICES OF VIOLATIONS OF LAWS
-----------------------------
1. All violations and other information set forth in the City of Orlando,
Florida fire inspection reports provided to Xxxxxx X. Xxxxxxx of Xxxxxxxxx &
Xxxxxxxxxxx, P.C. by Xxxxxx Xxxxxx of Broad and Xxxxxx under cover letters dated
June 6, 1997 and June 9, 1997.
2. Prior to the date of this Agreement, Seller performed certain
renovations on portions of the office building located on the Real Property. In
conjunction with such renovations, Seller modified certain of the doors in the
office building in a manner that resulted in such doors no longer meeting
certain fire code requirements under certain laws. Seller has not been cited for
such violations but, as a preventive measure, has ordered new doors to replace
such modified doors. It shall be a condition precedent to Purchaser's obligation
to consummate the purchase and sale contemplated in the Agreement that Seller
complete installation of such new doors at or prior to Closing. In the event
that such installation is not completed prior to Closing and Purchaser elects
that the Closing occur, Seller shall complete such installation after Closing in
accordance with Seller's existing plans with respect thereto (and Purchaser
shall cooperate with Seller in connection therewith).
EXHIBIT I
LIST OF LITIGATION
------------------
1. None
EXHIBIT J
XXXX OF SALE
------------
XXXX OF SALE
------------
THIS XXXX OF SALE (this "Xxxx of Sale") is executed as of the ____ day of
_________, l997, by SOUTH ORANGE AVENUE ASSOCIATES, an Illinois joint venture
("Seller"), having an office at Xxx Xxxxx Xxxxxxxxx Xxxxx, Xxxxxxx, Xxxxxxxx
00000, in favor of TRICONY FLORIDA CORPORATION, a Florida corporation
("Purchaser"), having an office at 000 0/0 Xxxxx Xxxxxx, Xxxxx 0-X, Xxxx Xxxxx,
Xxxxxxx 00000.
1. Real Property. The "Property" shall mean the real property located in
the City of Orlando, County of Orange, State of Florida, legally described in
EXHIBIT A attached to this Assignment, together with the building, structures
and other improvements owned by Assignor and located thereon and commonly known
as "Citrus Center".
2. Personal Property. The "Personal Property" shall mean the "Personal
Property" as defined in that certain Real Estate Sale Agreement dated the ___
day of June, 1997 (as amended, the "Contract"), by and between Seller and
Purchaser with respect to the purchase and sale of the Real Property and other
property as described therein, as such Personal Property is more particularly
described on attached EXHIBIT B.
3. Sale. For good and valuable consideration received by Seller, the
receipt and sufficiency of which are hereby acknowledged, Seller hereby sells,
assigns and transfers the Personal Property to Purchaser free of any liens or
encumbrances. Seller covenants and agrees to warrant and defend title to the
Personal Property unto Purchaser against all and every person or persons
lawfully claiming the whole or any part thereof. Except as set forth in the two
(2) preceding sentences, Seller makes no warranties or representations as to the
Personal Property. The Personal Property is transferred "AS IS, WHERE IS" and
ALL WARRANTIES OF QUALITY, FITNESS AND MERCHANTABILITY ARE HEREBY EXCLUDED.
4. Limited Liability. By accepting this Xxxx of Sale, Purchaser
expressly understands and agrees that any recovery against Seller that Purchaser
may be entitled as a result of any claim, demand or cause of action that
Purchaser may have against Seller with respect to this Xxxx of Sale shall only
be recoverable against Seller as provided in Section 11(P) of the Contract.
IN WITNESS WHEREOF, Seller has executed this Xxxx of Sale the day and year
first above written.
SELLER:
SOUTH ORANGE AVENUE ASSOCIATES, an Illinois joint
venture
By: FIRST CAPITAL INCOME PROPERTIES, LTD.-SERIES
IX, a Florida limited partnership
By: FIRST CAPITAL FINANCIAL CORPORATION, a
Florida corporation, its general
partner
By:____________________________________
Name:__________________________________
Its:___________________________________
By: FIRST CAPITAL SERIES IX, INC.,
an Illinois corporation
By:___________________________________
Name:_________________________________
Its:__________________________________
2
EXHIBIT K
---------
PERSONAL PROPERTY
-----------------
Furniture:
Reception Area
1 credenza
1 secretarial desk with left return
2 guest chairs
1 end table
1 file cabinet - drawer
1 file cabinet - 3 drawer lateral
Conference Room
1 round conference table
6 swivel chairs
1 end table
Manager's Office
1 executive desk
1 executive high back chair
2 guest chairs
1 bookcase with 2 shelves
1 credenza
Office/Supply Room
1 desk with left return
1 chair
1 sofa table
1 file cabinet - 4 drawer
1 file cabinet - 6 drawer lateral
1 storage/bookcase cabinet
1 storage/microwave cabinet
1 microwave
1 sink/refrigerator unit
Equipment
1 Sharp typewriter
Telephone system including 1 main station with 3 extension and 1 speakerphone
1 Quasar facsimile machine
1 Panasonic FP1670 copy machine
8 Motorola two way radios with chargers
2 Motorola two way radios with chargers
Various plants and wall hung pictures
EXHIBIT L
---------
NOTICE LETTER TO TENANTS
------------------------
[Letterhead of Equity Office Properties, L.L.C.]
NOTICE TO TENANTS
______________, 1997
Re: Citrus Center, 000 X. Xxxxxx Xxxxxx, Xxxxxxx, Xxxxxxx (the "Property")
Dear Tenant:
This is to notify you that the Property has been sold to
_____________________, and that ________________________ has been retained by
the new owner as managing agent of the building.
Any security or other deposits and any prepaid rents under your lease have
been transferred to the new owner.
Effective immediately, all rental payments, notices to the Landlord, and
correspondence pursuant to your lease should be mailed to the following address:
Rents: Notices:
______________________________ _______________________________________
______________________________ _______________________________________
______________________________ _______________________________________
Attention: ___________________
Additionally, please have new Certificates of Insurance issued naming
____________________ as an additional insured. Please deliver said Certificate
to new owner at the "Notices" address set forth above. [FOR THOSE TENANTS THAT
HAVE OUTSTANDING PROMISSORY NOTES, LANGUAGE WILL BE ADDED DIRECTING THAT
PAYMENTS BE PAID TO SELLER.]
Very truly yours,
EQUITY OFFICE PROPERTIES, L.L.C., L.C., a Delaware
limited liability company, as agent for Seller
By: ____________________________________________
Its: ____________________________________________
EXHIBIT M
---------
NOTICE LETTER TO VENDORS/LICENSEES UNDER SERVICE CONTRACTS
----------------------------------------------------------
[Letterhead of Equity Office Properties, L.L.C.]
__________________, 1997
VIA TELECOPY AND
----------------
CERTIFIED MAIL, RETURN RECEIPT REQUESTED
----------------------------------------
[Vendor]
_________________________
_________________________
Re: Citrus Center, 000 X. Xxxxxx Xxxxxx, Xxxxxxx, Xxxxxxx (the "Property")
Dear Service Provider:
Reference is herein made to that certain service contract [license
agreement] (the "Contract") dated ________________, by and between Equity Office
Properties, L.L.C. [as successor in interest to Equity Office Properties], as
agent for the seller ("Seller") of the Property and _____________________ with
respect to the provision of ________________ at the Property.
This is to advise you that effective as of today, the Property has been
sold to _______________________ ("Purchaser"). Purchaser has assumed all of the
obligations of the undersigned under the Contract as of the date hereof. All
notices to Purchaser should be sent to Purchaser c/o _________________,
_______________ and should be sent or delivered to such address in the manner
provided in the Contract.
Very truly yours,
EQUITY OFFICE PROPERTIES, L.L.C., L.C., a Delaware
limited liability company, as agent for Seller
By: _____________________________________________
Its: ____________________________________________
EXHIBIT N
PROSPECTIVE TENANTS - XXXXXXX
-----------------------------
1. Opus South Corporation
2. Corporex Development Services
3. Resource Advisory Service
4. Financial Advisory Service
5. Xxxxxx Xxxxx et al
6. Continental Airlines
EXHIBIT O
---------
OSHA LETTER
-----------
_________________, 1997
Tricony Florida Corporation
000-0/0 Xxxxx Xxxxxx
Xxxxx 0-X
Xxxx Xxxxx, Xxxxxxx 00000
Re: Transmittal of Information Regarding Asbestos-Containing
Material and Presumed Asbestos-Containing Material
Ladies and Gentlemen:
As you know, the Occupational Safety and Health Administration ("OSHA") has
enacted regulations (the "OSHA Regulations") which require building owners to
provide information regarding the presence, location and quantity of asbestos
containing material ("ACM") and presumed ACM ("PACM") to various building
occupants, including employers of employees who lease space within the owner's
building. In addition, the OSHA Regulations, specifically 29 C.F.R.
(S)1910.1001(j)(2)(ii) and 29 C.F.R. (S)1926.1101(n)(6), require building owners
to keep records of all information required to be maintained by the OSHA
Regulations and to transmit such records to subsequent owners at or before the
time of closing.
South Orange Avenue Associates, an Illinois joint venture ("Seller"), has,
prior to the date of this letter, provided Tricony Florida Corporation, a
Florida corporation ("Purchaser") with copies of information required to be
maintained and transmitted as described above regarding ACM and PACM at the
property located at 000 Xxxxx Xxxxxx Xxxxxx, Xxxxxxx, Xxxxxxx, and commonly
known as the Citrus Center, including copies of notices to tenants and any
related asbestos sampling results and reports in our possession (such
information, notices and reports being referred to herein collectively as the
"Reports"). A list of such Reports is set forth on SCHEDULE 1 attached hereto.
The undersigned makes no representation, warranty, promises, covenants,
agreements or guarantees of any kind or character whatsoever, express or
implied, oral or written, past, present or future, of, as to, concerning or with
respect to the information and documentation transmitted herewith including
without limitation, the accuracy or completeness of such Reports, the Reports'
compliance with the OSHA Regulations, or Seller's compliance with the OSHA
Regulations.
We request that you acknowledge receipt of this letter and the Reports by
signing below and forwarding an executed copy to Seller.
Sincerely,
SOUTH ORANGE AVENUE ASSOCIATES,
an Illinois joint venture
By: FIRST CAPITAL INCOME PROPERTIES,
LTD.-SERIES IX, a Florida limited partnership
By: FIRST CAPITAL FINANCIAL CORPORATION, a
Florida corporation, its general
partner
By:__________________________
Name:________________________
Its:_________________________
By: FIRST CAPITAL SERIES, IX, INC.,
an Illinois corporation
By:____________________________
Name:__________________________
Its:___________________________
Acknowledged receipt of this letter and the
Reports this _____ day of _______________, 1997.
TRICONY FLORIDA CORPORATION,
a Florida corporation
By:________________________
Name:______________________
Its:_______________________
2
SCHEDULE 1
----------
TO
--
OSHA LETTER
-----------
LIST OF REPORTS
---------------
1. April, 1986 Asbestos Survey prepared by Environmental Science &
Engineering, Inc.
2. May 22, 1986 Building Survey for Asbestos-Containing Materials prepared by
Law Engineering Testing Company.
3. February 4, 1987 Air Sampling Survey prepared by Occusafe, Inc.
4. March 17, 1987 Supplemental Report Air Sampling Survey prepared by
Occusafe, Inc.
5. July 7, 1987 Air Sampling Survey prepared by Occusafe, Inc.
6. September 23, 1987 Air Sampling Survey prepared by Occusafe, Inc.
7. April 14, 1988 Building Survey, Sampling and Evaluation prepared by Law
Engineering.
8. June 7, 1988 Opinion of Costs for Asbestos Removal prepared by Law
Engineering.
9. June 13, 1988 Air Sampling Survey prepared by Occusafe, Inc.
10. July 15, 1988 Past Monitoring Letter Report prepared by Occusafe, Inc.
11. April 27, 1989 Air Monitoring Survey prepared by PEI Associates, Inc.
12. April 24 and April 25, 1990 Asbestos Operations and Maintenance Training
prepared by PEI Associates, Inc.
13. June 4, 1996 ACM Physical Assessment and Recommendation Update prepared by
Law Engineering and Environmental Services.
14. July 1996 Asbestos Guidance Manual prepared by Law Engineering and
Environmental Services, Inc.
15. Memo dated January 4, 1994 from Xxxxx Xxxxxxxx and Xxxxx Xxxxxx to Xxxxx
Xxxxxx with respect to management of asbestos containing materials.
3
EXHIBIT P
---------
ENVIRONMENTAL REPORTS
---------------------
1. April, 1986 Asbestos Survey prepared by Environmental Science &
Engineering, Inc.
2. May 22, 1986 Building Survey for Asbestos-Containing Materials prepared by
Law Engineering Testing Company.
3. February 4, 1987 Air Sampling Survey prepared by Occusafe, Inc.
4. March 17, 1987 Supplemental Report Air Sampling Survey prepared by
Occusafe, Inc.
5. July 7, 1987 Air Sampling Survey prepared by Occusafe, Inc.
6. September 23, 1987 Air Sampling Survey prepared by Occusafe, Inc.
7. April 14, 1988 Building Survey, Sampling and Evaluation prepared by Law
Engineering.
8. June 7, 1988 Opinion of Costs for Asbestos Removal prepared by Law
Engineering.
9. June 13, 1988 Air Sampling Survey prepared by Occusafe, Inc.
10. July 15, 1988 Past Monitoring Letter Report prepared by Occusafe, Inc.
11. April 27, 1989 Air Monitoring Survey prepared by PEI Associates, Inc.
12. April 24 and April 25, 1990 Asbestos Operations and Maintenance Training
prepared by PEI Associates, Inc.
13. June 4, 1996 ACM Physical Assessment and Recommendation Update prepared by
Law Engineering and Environmental Services.
14. July 1996 Asbestos Guidance Manual prepared by Law Engineering and
Environmental Services, Inc.
15. Memo dated January 4, 1994 from Xxxxx Xxxxxxxx and Xxxxx Xxxxxx to Xxxxx
Xxxxxx with respect to management of asbestos containing materials.
EXHIBIT Q
---------
SECURITY DEPOSITS
-----------------
TENANT AMOUNT
------ ------
Xxxxx Xxxx, Doppelt, et al $11,462.66
Xxxxxxx & Caborn $ 2,82
8.62 plus Letter of Credit
Xxxxxx Medical Institute $ 2,233.32
Xxxxxxxx, Xxxxxxx & Xxxxxx $ 6,015.23
Central Florida Community Reinvest $ 1,790.90
Florida Travel Center, Inc. $ 1,440.13
Xxxx Xxxxx $ 1,788.79
Xxxxxx & Xxxxxx, P.A. $ 2,366.71
Investment Counsel Company $ 8,009.53
Juris Corporation $ 1,622.55
Juris Corporation $ 572.03
Xxxxxxx Realty $ 7,987.36
Xxxxxxx, XxxXxxxxxx $ 4,000.00
Open University $20,000.00
Opus South Corporation $ 1,910.78
Pilot Group, L.C. $ 1,277.50
Xxxxx X. Xxxx $ 559.98
Shores & Company, P.A. $ 3,466.31
Treats International $ 1,199.25
U.S. Golf Communities, Inc. Letter of Credit
Xxxxxx & Xxxxxxx $ 7,743.65
Williams, McGuire, Xxxxx et al $ 4,075.56
Wolf & Wolf International $ 5,000.00
----------
TOTAL $97,350.86
==========
EXHIBIT R
---------
SPECIAL WARRANTY DEED
---------------------
PREPARED BY AND UPON
RECORDING, RETURN TO:
___________________________
___________________________
___________________________
___________________________
Property Tax I.D. No. _____
SPECIAL WARRANTY DEED
---------------------
THIS SPECIAL WARRANTY DEED is made the ____ day of _______, 199__ between
______________, a __________________, hereinafter referred to as "Grantor", and
___________________, a ______________________, whose address is
______________________, and whose Taxpayer Identification Number is
_______________________, hereinafter referred to as "Grantee".
W I T N E S S E T H:
-------------------
That the Grantor, for and in consideration of the sum of Ten Dollars
($10.00) and other good and valuable consideration, to it in hand paid, the
receipt and sufficiency whereof is hereby acknowledged, by these presents does
grant, bargain, sell, alien, remise, release, convey and confirm unto Grantee,
and Grantee's successors and assigns forever, all that certain parcel of land
lying and being in the County of __________, State of Florida, as more
particularly described as follows:
The land described in Exhibit "A" attached hereto and made a part
hereof.
TOGETHER WITH all the improvements, tenements, hereditaments, and
appurtenances thereto belonging.
SUBJECT TO those certain matters described in Exhibit "B" attached hereto
and made a part hereof and all other covenants, restrictions, easements,
limitations and other matters of record.
TO HAVE AND TO HOLD the above described premises unto the Grantee, its
successors and assigns, in fee simple forever.
And Grantor does hereby covenant with Grantee that Grantor has good right
and lawful authority to sell and convey said land; and Grantor does hereby
warrant the title to said land subject to the matters referred to above and will
defend the same against the lawful claims of all persons claiming by, through
and under Grantor but against none other.
IN WITNESS WHEREOF, Grantor has caused this Special Warranty Deed to be
duly executed and delivered.
GRANTOR:
Signed in the presence of: ________________________________
a ______________________________
_____________________________________ By: ___________________________
Print Name: ________________________ a ______________________________
Its: __________________________
_____________________________________ By: ___________________________
Print Name: ________________________ Name: _________________________
Title: ________________________
STATE OF_____________)
_____________________) SS:
COUNTY OF____________)
The foregoing instrument was acknowledged before me this ____ day of
____________, 1997, by _______________________, as _______________________ of
____________________________, a _____________________________, as
_______________, of ________________________________, a
________________________, on behalf of said entity. He/She is personally known
to me or has produced _________________________ as identification.
______________________________________
NOTARY PUBLIC
Printed Name: ________________________
(Notarial Seal)
My Commission Expires: ______________
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EXHIBIT "A"
-----------
Legal Description
-----------------
EXHIBIT "B"
-----------
Permitted Exceptions
--------------------
EXHIBIT S
---------
LIST OF NEW LEASES
------------------
Type of New Lease
Tenant Date of New Lease (Lease, Amendment, etc.)
--------------------------------- --------------------------- ---------------------------
Florida Travel Center June 17, 1997 Lease
The Xxxxxxx Company June 17, 1997 Third Amendment
Investment Counsel Company June 17, 1997 Second Amendment
EXHIBIT T
Designated Tenants
------------------
1. Akerman Senterfitt & Xxxxxx, P.A.
2. Xxxxxxx Xxxxxx Xxxx Xxxxxxxx Xxxxx & Xxxxxx, P.A.
3. Citrus Club
4. Open University
5. Republic Bank
EXHIBIT U
FORM SELLER ESTOPPEL CERTIFICATE
--------------------------------
Tricony Florida Corporation
000 0/0 Xxxxx Xxxxxx
Xxxxx 0-X
Xxxx Xxxxx, Xxxxxxx 00000
Re: [Name of Tenant ]. Suite ___, Citrus Center,
255 S. Orange, Orlando, Florida (the "Property")
Gentlemen:
Reference is herein made to that certain Real Estate Sale Agreement (the
"Agreement") dated ______________, 1997 by and between South Orange Avenue
Associates, an Illinois joint venture ("Seller"), as seller, and Tricony Florida
Corporation, a _________ corporation, as purchaser ("Purchaser"), for the
purchase and sale of the property known as Citrus Center, 000 X. Xxxxxx Xxxxxx,
Xxxxxxx, Xxxxxxx (the "Property"). All capitalized terms used herein but not
defined herein shall have the meanings ascribed to them in the Agreement.
Pursuant to Section 9 of the Agreement, Seller hereby represents and warrants to
Purchaser, to the "Actual Knowledge of Seller" (as defined in the Agreement) as
follows:
1. The undersigned is the landlord under a lease with __________________
("Tenant") as described below:
a. Date of tenant's lease:_________________________
b. Date of all amendments or modifications:_________________________
_________________________________________________________________
c. Leased premises: Suite No._______ Floor No._______
d. Leased premises approximate sq. ft.______________
e. Expiration date of lease:________________________
f. Unexercised renewal options:____________________________for______
__________years each.
g. Security deposit currently held by Landlord: $_________
h. Advance or Prepaid Rent: $_______________
i. Unused free rent/rent concessions________________________________
_________________________________________________________________
2. The above lease ([as amended as aforesaid], the "Lease") is in full
force and effect and has not (otherwise) been amended, modified, supplemented or
superseded, and constitutes the entire
agreement between the undersigned and Tenant with respect to said premises.
There is no other agreement, oral or written, (except for the agreements
contained herein) between the undersigned and the Tenant with respect to said
premises or any other space at the above-referenced property, except: [list any
other space leased by tenant, including storage space]. A true, correct and
complete copy of the Lease is attached hereto as EXHIBIT A.
3. The Tenant is not in default under the Lease, except as shown on
SCHEDULE I attached hereto. There is no defense, offset, claim or counterclaim
by or in favor of the Tenant against the undersigned under the Lease or against
the obligations of the Tenant against the undersigned under the Lease or against
the obligations of the Tenant under the Lease.
4. Seller has not received written notice from the Tenant of any material
default by Seller under the Lease which has not been cured as of the date of
this certificate ("Certificate").
5. The Tenant is in sole possession of the leased premises and has not
subleased all or any part of the leased premises, or assigned the Lease, except
as follows: [list assignments or sublease]
6. The monthly base rental due under the Lease is $___________ and has
been paid through_____________ 199___. All additional base rental, to-wit:
estimated monthly common area, maintenance and real estate taxes, payable in the
amount of $______ per month at the present time, has been paid through
___________________, 199___. In addition, monthly sales and use tax due under
the Lease, payable in the amount of $_________ per month at the present time,
has been paid through __________, 199__.
7. The Seller has received no written notice of any actions, voluntary or
otherwise, pending against the Tenant under the bankruptcy, reorganization,
moratorium of similar laws of the United States, any state thereof or any other
jurisdiction.
8. The Tenant has accepted possession and taken occupancy of the premises
and has commenced the payment of rents for all space subject to the Lease.
9. All improvements, build-outs, finished work and any other obligations
of the landlord under the Lease have been completed and to the best of the
knowledge of the undersigned have been paid for either by the undersigned or the
Tenant in full, except as follows: _____________________________
10. The "base year" for additional base rental under the Lease is 19__ and
the "basic costs" attributable to such "base year" is $_________________.
[Note: if Lease is a relatively new lease and the base year amounts have not
yet been determined, this provision will be modified to state the "base year"
and that the "basic costs" are to be determined.]
11. The Tenant has no expansion option or right of first refusal under
Lease to lease additional space, except as follows:
________________________________________________________________
________________________________________________________________
________________________________________________________________
This Certificate is executed by Seller solely for the benefit of Purchaser
and no third party (other than a "Permitted Assignee" [as defined in the
Agreement] provided that such Permitted Assignee shall
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have executed and delivered to Seller at or prior to Closing an agreement
assuming all of the obligations of Purchaser under the Agreement in accordance
with Section 11(B) of the Agreement) shall have the benefit of any of the
provisions of this Certificate, nor is this Certificate made with the intent
that any person other than Purchaser (and such Permitted Assignee) rely thereon.
This Certificate is delivered to Purchaser in connection with and subject
to the terms, provisions and limitations of the Agreement, including, without
limitation, Sections 9 and 11(P) thereof.
IN WITNESS WHEREOF, Seller has executed this Certificate as of this ____
day of ____________, 1997.
SELLER:
SOUTH ORANGE AVENUE ASSOCIATES, an Illinois joint
venture
By: FIRST CAPITAL INCOME PROPERTIES, LTD.-SERIES
IX, a Florida limited partnership
By: FIRST CAPITAL FINANCIAL CORPORATION, a
Florida corporation, its general
partner
By:
---------------------------------
Name:
---------------------------------
Its:
---------------------------------
By: FIRST CAPITAL SERIES IX, INC.,
an Illinois corporation
By:
---------------------------------
Name:
---------------------------------
Its:
---------------------------------
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