EXHIBIT 10.1
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PURCHASE AGREEMENT
(National City Center; Cleveland, Ohio)
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THIS AGREEMENT is made and entered into as of December 3, 1997 (the
"EFFECTIVE DATE") by and between CARLYLE/NATIONAL CITY ASSOCIATES, an
Illinois general partnership (hereinafter called "SELLER"), and BRE/CITY
CENTER, LLC, a Delaware limited liability company (hereinafter called
"BUYER").
R E C I T A L S
A. Euclid-Ninth Community Urban Redevelopment Corporation, an Ohio
nonprofit corporation ("ENCURC") is the fee owner of the "ENCURC Land" (as
hereinafter defined) and the owner of a leasehold interest in the "Xxxx
Land" (as hereinafter defined), on which real property is situated an
office complex and related improvements (the "Complex") commonly known as
"National City Center" located in the City of Cleveland, County of
Cuyahoga, State of Ohio, as more particularly described herein.
B. Seller is the owner of a leasehold estate in the ENCURC Land
and a subleasehold estate in the Xxxx Land, as more particularly described
herein.
C. Buyer desires to purchase, and Seller desires to sell, the
interest of Seller in and to such premises, together with certain other
rights described herein, all on the terms and conditions hereinafter
documented.
NOW, THEREFORE, in consideration of the mutual undertakings of the
parties hereto, it is hereby agreed as follows:
1. CERTAIN DEFINITIONS. As used in this Agreement, the following
terms have the following meanings:
"ENCURC GROUND LEASE" means that certain lease dated December
9, 1977, executed by ENCURC as lessor, and National City Center Joint
Venture ("NCCJV"), as lessee, a memorandum of which is recorded in Volume
524, Page 459, of Cuyahoga County, Ohio Lease Records, which lease was
amended by Amendment to Lease between ENCURC and NCCJV dated September 14,
1979, filed for record November 21, 1980, and recorded in Volume 545, Page
95, of Cuyahoga County Ohio Records, the lessee's interest in which was
assigned by NCCJV to Seller by Assignment of Lease dated July 27, 1983,
filed for record on July 27, 1983, and recorded in Volume 216, Page 499, of
Cuyahoga County, Ohio Records.
"ENCURC LAND" means that certain real property located in the
City of Cleveland, County of Cuyahoga, State of Ohio, as more particularly
described in Exhibit "A-1" attached hereto and made a part hereof.
"ENCURC LEASEHOLD ESTATE" means the leasehold estate in that
certain real property located in the City of Cleveland, County of Cuyahoga,
State of Ohio, more particularly described in Exhibits "A-1" and "A-2"
attached hereto, such leasehold estate being created pursuant to the ENCURC
Ground Lease.
"XXXX GROUND LEASE" means that certain lease dated September 1,
1976, executed by The Xxxx Realty Company ("XXXX"), as lessor, and National
City Bank, as lessee, a memorandum of which was filed for record on October
26, 1976 and recorded in Volume 515, Page 1 of Cuyahoga County, Ohio Lease
Records, the lessee's interest therein having been assigned to NCCJV by
Assignment of Lease filed for record on October 21, 1977 and recorded in
Volume 523, Page 47, of Cuyahoga County, Ohio Lease Records, and the
lessee's interest therein having been further assigned to ENCURC by
Assignment of Lease filed for record on December 12, 1977 and recorded in
Volume 524, Page 469, of Cuyahoga County, Ohio Lease Records.
"XXXX LAND" means that certain real property located in the
City of Cleveland, County of Cuyahoga, State of Ohio, as more particularly
described in Exhibit "A-2" attached hereto and made a part hereof.
"XXXX LEASEHOLD ESTATE" means the leasehold estate in the Xxxx
Land, such leasehold estate being created pursuant to the Xxxx Ground
Lease.
"ENCURC LOAN" means that certain loan (a) evidenced by that
certain Mortgage Note, dated December 9, 1977, made by ENCURC, and payable
to the order of NCCJV, in the principal amount of $59,000,000 (the "ENCURC
NOTE"), and (b) secured by that certain Ohio Purchase Money Mortgage Deed
executed by ENCURC in favor of NCCJV, dated December 9, 1977, filed for
record December 12, 1977, and recorded in Volume 14753, Page 207, of
Cuyahoga County, Ohio Records, as amended by Amendment to Mortgage, by and
between ENCURC and NCCJV, dated as of September 14, 1979, filed for record
November 21, 1980, and recorded in Volume 15751, Page 235, of Cuyahoga
County, Ohio Records (collectively, the "ENCURC MORTGAGE"), the mortgagee's
interest in the ENCURC Mortgage having been assigned to CNCA by NCCJV by
Assignment of Note and Mortgage, dated July 27, 1983, filed for record July
27, 1983, and recorded in Volume 216, Page 519, of Cuyahoga County, Ohio
Records.
"NEW YORK LIFE LOAN" means that certain loan made by New York
Life Insurance Company ("NEW YORK LIFE") evidenced by the "NEW YORK LIFE
NOTE" and secured by the "NEW YORK LIFE MORTGAGE" and the "OTHER NEW YORK
LIFE SECURITY DOCUMENTS", all as more particularly described in Exhibit "B"
attached hereto (collectively, the "NEW YORK LIFE LOAN DOCUMENTS").
2. PURCHASE AND SALE. At "Closing" (as hereinafter defined),
Seller shall sell, assign, transfer and deliver to Buyer, and Buyer shall
purchase from Seller, (a) all right, title and interest of Seller in and to
the ENCURC leasehold Estate, (b) all right, title and interest of Seller in
and to the ENCURC Note and the ENCURC Mortgage, (c) all right, title and
interest of Seller in and to all improvements, structures and fixtures
located upon the ENCURC Land and the Xxxx Land (the "IMPROVEMENTS"), (d)
all right, title and interest of Seller in and to those items of personal
property described in Exhibit "C" attached hereto and made a part hereof
(the "LISTED PERSONAL PROPERTY"), together with all right, title and
interest of Seller in and to any other items of personal property located
at the Property and utilized in the operation or maintenance thereof (such
items, if any, being herein called the "REMAINING PERSONAL PROPERTY"), (e)
all right, title and interest of Seller in and to the name "National City
Center", (f) all right, title and interest of Seller in and to all leases,
licenses and other occupancy agreements of space in the Improvements, and
all modifications and amendments thereto, as set forth on Exhibit "K-1"
attached hereto the "LEASES"), (g) to the extent assignable, all right,
title and interest of Seller in and to all written contracts and agreements
pertaining to the Property set forth on Exhibit "L-1" hereto, (h) to the
extent assignable, all leases in which Seller is the lessee, if any, of
equipment used in the operation or maintenance of the Land or Improvements
which are set forth on Exhibit "L-2" hereto, and (i) to the extent
assignable, all right, title and interest of Seller in and to all tenant
lists, advertising material, telephone exchange numbers, development
rights, plans and specifications, licenses, permits, third party
engineering plans and studies, floor plans and landscape plans relating
solely to the Complex (hereinafter, collectively, the "PROPERTY"), all upon
the terms, covenants and conditions hereinafter set forth. In addition, at
Closing Seller shall cause the existing trustees of ENCURC ("SELLER
TRUSTEES") to appoint designees of Buyer as trustees thereof ("BUYER
TRUSTEES"), and immediately thereafter all Seller Trustees and any other
existing members and officers of ENCURC shall resign (such that, upon
closing, designees of Buyer shall constitute all such trustees, members and
officers of ENCURC), all upon the terms, covenants and conditions
hereinafter set forth.
3. PURCHASE PRICE. The purchase price (the "PURCHASE PRICE") for
the Property (and other rights contemplated herein) shall be the sum of
Eight-Two Million Five Hundred Thousand and no/100 Dollars
($82,500,000.00).
4. PAYMENT OF PURCHASE PRICE. The Purchase Price shall be paid to
Seller by Buyer as follows:
A. ESCROW DEPOSIT. Concurrently herewith, Buyer shall
deliver $500,000 (together with all interest thereon, the "ESCROW DEPOSIT")
to Commonwealth Land Title Insurance Company, 00 Xxxxx XxXxxxx Xxxxxx,
Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000, Attention: Mr. Xxxxxx Xxxx (which
company, in its capacity as escrow holder hereunder, is called "ESCROW
HOLDER"). The deposit to be made hereunder shall be made by a bank or
cashier's check drawn on a major national money center banking institution
reasonably acceptable to Seller, by wire transfer or by other delivery of
good funds reasonably acceptable to Seller, and the amounts so deposited
shall be held by Escrow Holder as a deposit against the Purchase Price in
accordance with the terms and provisions of this Agreement and a separate
escrow agreement executed by Escrow Holder, Seller and Buyer. At all times
in which the Escrow Deposit is being held by the Escrow Holder, the Escrow
Deposit shall be invested by Escrow Holder in the following investments
("APPROVED INVESTMENTS"): (i) United States Treasury obligations, (ii)
United States Treasury-backed repurchase agreements issued by a major
national money center banking institution reasonably acceptable to Seller,
or (iii) such other manner as may be reasonably agreed to by Seller and
Buyer. The Escrow Deposit shall be disposed of by Escrow Holder only as
provided in this Agreement.
B. ASSUMPTION OF NEW YORK LIFE LOAN. A portion of the
Purchase Price shall be payable by Buyer assuming the obligations of Seller
under the New York Life Loan Documents, such portion of the Purchase Price
so payable being an amount equal to the outstanding principal balance of
the New York Life Note as of the Closing Date (the "NEW YORK LIFE LOAN
AMOUNT"). Assuming the Closing occurs in December 18, 1997 (after payment
of the amounts due on December 10, 1997 under the New York Life Loan), the
outstanding New York Life Loan Amount at Closing is anticipated to be
approximately $54,278,000.
C. CLOSING PAYMENT. The balance of Purchase Price (i.e.,
$82,500,000 minus the New York Life Loan Amount), as adjusted by the
application of the Escrow Deposit and by the prorations and credits
specified herein, shall be paid in cash on the "Closing Date", as
hereinafter defined (the amount to be paid under this subparagraph C being
herein called the
"CLOSING PAYMENT"). Assuming the Closing occurs in December, 1997, (after
payment of the amounts due on December 1, 1997 under the New York Life
Loan), the Closing Payment is anticipated to be approximately $28,222,000
(i.e., $82,500,000 less the anticipated Outstanding New York Life Loan
Amount of $54,278,000) less the Escrow Deposit and adjusted by the
prorations and credits specified herein.
5. CONDITIONS PRECEDENT
A. TITLE MATTERS.
(1) TITLE REPORT. Buyer has ordered commitments for
title insurance (the "COMMITMENTS") covering both (a) the fee interest of
ENCURC in the ENCURC Land and the leasehold interest of ENCURC in the Xxxx
Land and (b) the leasehold interest of Seller in the ENCURC Leasehold
Estate, from Commonwealth Land Title Insurance Company (which company, in
its capacity as title insurer hereunder, is herein called the "TITLE
COMPANY"). In addition, Seller has ordered (and upon receipt shall deliver
to Buyer) an update of that certain survey of the Property dated February,
1994 prepared by Xxxxxxx & Associates, Inc. which survey shall be certified
to Buyer and Title Company ("SURVEY"). If Buyer shall deliver the
"Approval Notice" on or before the end of the "Due Diligence Period" (as
such terms are hereinafter defined), Buyer shall be deemed to have approved
the exceptions to title shown on the Commitments and the matters disclosed
on the Survey. Approval by Buyer of any additional exceptions to title or
survey matters disclosed after the end of the Due Diligence Period shall be
a condition precedent to Buyer's obligation to purchase the Property (and
to obtain the other rights contemplated herein), Buyer hereby agreeing that
its approval of such additional exceptions to title or survey matters shall
not be unreasonably withheld. Unless Buyer gives written notice that it
disapproves any such additional exceptions to title or survey matters,
stating the exceptions so disapproved, on or before the sooner to occur of
10 days after receipt of written notice thereof or the Closing Date, Buyer
shall be deemed to have approved said exceptions. If, for any reason, on
or before the Closing Date, Seller does not cause any exceptions to title
or survey matters which Buyer disapproves (to the extent Buyer is permitted
hereunder to so disapprove) either to be removed or to obtain a title
endorsement (if available) reasonably satisfactory to Buyer insuring over
such disapproved matter on or before the Closing Date at no cost or expense
to Buyer (Seller having the right but not the obligation to do so), the
obligation of Seller to sell, and Buyer to buy, the Property (and to
transfer the other rights contemplated herein) as herein provided shall
terminate (and Seller and Buyer shall have no further obligations in
connection herewith). Buyer shall have the option to waive the condition
precedent set forth in this Paragraph 5A(1) by notice to Seller. In the
event of such waiver, such condition shall be deemed satisfied.
Notwithstanding the foregoing, Seller shall be obligated to remove (or
cause the Title Company to omit) any of the following exceptions: (x) any
deed of trust or mortgage against the Property securing financing obtained
by Seller; (y) any mechanic's or materialmen's liens based on work
performed by or on behalf of Seller, and (z) any tax or judgment liens
against Seller (the foregoing obligations being without regard to amounts.
Seller shall be entitled to adjourn the Closing for a period not to exceed
thirty (30) days in order to eliminate title exceptions disapproved by
Buyer. In addition, if the Commitments disclose judgments, bankruptcies,
mortgages, liens or other returns against other persons having names the
same or as similar to that of the Seller, Seller shall deliver to Buyer and
Title Company at Closing a certificate stating that such judgments,
mortgages, bankruptcies, liens or other returns are not against Seller.
Seller also shall deliver appropriate certificates respecting mechanic's
liens and bills paid by Seller and such additional certificates and
documentary evidence reasonably required by the Title Company to eliminate
standard exceptions appearing in the Title Report that Buyer is not
required to accept (provided the same do not impose material costs,
liabilities or obligations upon Seller not otherwise contemplated herein).
If Seller is unable after reasonable good faith effort, or is not required
to, eliminate a title exceptions or otherwise comply with the requirements
set forth herein, Seller shall so notify Buyer, and Buyer as its sole and
exclusive remedy, may terminate this Agreement by notice given to Seller,
in which event, neither party shall have any rights or obligations to the
other under this Agreement, except with respect to those obligations that
survive a termination of this Agreement.
(2) TITLE POLICIES. It shall be a condition precedent
to Buyer's obligation to consummate the transactions contemplated herein
that on the Closing Date, the Title Company shall issue (or irrevocably
commit to issue) the following title insurance policies (the "TITLE
POLICIES"):
(a) an ALTA leasehold owner's title insurance
policy in the standard form issued in the State of Ohio, in the face amount
of the Purchase Price, which policy shows title to the ENCURC Leasehold
Estate to be vested of record in Buyer, and the following to be the only
exceptions to title ("PERMITTED EXCEPTIONS"):
(i) Real estate taxes and assessments not
yet due and payable;
(ii) The printed exceptions which appear in
the appropriate standard form policy of title insurance issued by Title
Company in the State of Ohio;
(iii) The New York Life Loan Documents; and
(iv) Such exceptions to title as may be
approved or deemed approval by Buyer pursuant to the provisions of
subparagraph A(1) above.
(b) an ALTA owner's and leasehold owner's title
insurance policy in the standard form issued in the State of Ohio in the
amount of $82,500,000, which policy shows fee title to the ENCURC Land to
be vested of record in ENCURC and shows the Xxxx Leasehold Estate to be
vested of record in ENCURC, and the ENCURC Mortgage, together with
Permitted Exceptions, to be the only exceptions to title.
B. DUE DILIGENCE REVIEWS. Buyer shall have until 5:00 p.m.
(Central time) on December 3, 1997 (the "DUE DILIGENCE PERIOD") within
which to perform and complete all of Buyer's due diligence examinations,
reviews and inspections of all matters pertaining to the transactions
contemplated herein, including all leases, service contracts, survey and
title matters, and all physical, environmental and compliance matters and
conditions respecting the Property and the transactions contemplated
herein; provided, however, matters respecting the New York Life Loan will
be governed by the provisions of Paragraph 5E below. During the Due
Diligence Period, Seller shall provide Buyer with reasonable access to the
Property upon reasonable advance notice and shall also make available to
Buyer, upon reasonable advance notice, all Leases, service contracts and
other contracts respecting the Property (to the extent the same are in
Seller's possession). Buyer shall promptly commence, and shall diligently
and in good faith pursue, its due diligence review hereunder. Buyer shall
at all times conduct its due diligence review, inspections and examinations
in a manner so as to not cause damage, loss, cost or expense to Seller or
the Property and so as to not interfere with or disturb any tenant at the
Property, and Buyer will indemnify, defend, and hold Seller and the
Property harmless from and against any such damage, loss, cost or expense
(the foregoing obligation surviving any termination of this Agreement).
Without limitation on the foregoing, in no event shall Buyer (a) make any
intrusive physical testing (environmental, structural or otherwise) at the
Property (such as soil borings, water samplings or the like) without
Seller's express written consent (provided the foregoing shall not prohibit
Buyer from obtaining a standard Phase I environmental survey); (b) contact
any tenant of the Property without Seller's express written consent; and
(c) other than a standard title search, coordinate any contact any
governmental authority having jurisdiction over the Property with Seller
(and take into account any reasonable requirements of Seller in connection
therewith). Seller shall have the right, at its option, to cause a
representative of Seller to be present at all inspections, reviews and
examinations conducted hereunder. In the event of termination hereunder,
Buyer shall promptly return all documents and other materials furnished by
Seller hereunder. Buyer shall keep all information or data received or
discovered in connection with any of the inspections, reviews or
examinations confidential in accordance with that certain confidentiality
agreement dated August 20, 1997 between Seller and Buyer. If, on or before
the expiration of the Due Diligence Period, Buyer shall determine that it
intends to proceed with the transactions contemplated under this Agreement,
then Buyer shall promptly notify Seller and Escrow Holder of such
determination in writing (such notice being herein called the "APPROVAL
NOTICE") and thereafter, Buyer shall have no further right to terminate
this Agreement pursuant to this paragraph 5B. If, however, on or before
the expiration of the Due Diligence Period, Buyer shall determine in its
sole and absolute discretion that it no longer intends to consummate the
transactions contemplated under this Agreement, then Buyer shall promptly
notify Seller of such determination in writing (such notice being herein
called the "TERMINATION NOTICE"), whereupon the Escrow Deposit shall be
returned to Buyer and this Agreement, and the obligations of the parties
hereunder, shall terminate. In the event that, on or before the expiration
of the Due Diligence Period, Buyer shall fail to have delivered the
Approval Notice to Seller, Buyer shall be deemed to have elected not to
proceed with the transactions contemplated under this Agreement, whereupon
the Escrow Deposit shall be returned to Buyer and this Agreement, and the
obligations of the parties hereunder, shall terminate. If Buyer shall
terminate this Agreement, then neither party shall have any obligation
hereunder other than with respect to those obligations which survive a
termination of this Agreement.
C. TENANT ESTOPPEL CERTIFICATES. Receipt of estoppel
certificates ("TENANT ESTOPPEL CERTIFICATES"), from Xxxxx & Xxxxxxxxx, KMPG
and National City Bank (each a "MAJOR TENANT"), together with Tenant
Estoppel Certificates from a sufficient number of additional tenants at the
Property so that, overall, on or before the Closing Date, Tenant Estoppel
Certificates shall be received with respect to not less than 75% of the net
rentable square feet of space covered by Leases in effect as of the Closing
Date, shall be a condition precedent to Buyer's obligation to consummate
the transactions contemplated in this Agreement. Each Tenant Estoppel
Certificate shall contain no material adverse exceptions, qualifications or
modifications with respect to the applicable Lease (it being understood
that any change which affects the cash flow of the Property shall be deemed
to be material). Each Tenant Estoppel Certificate shall be substantially
in the appropriate form provided in Exhibit "D" attached hereto and made a
part hereof. Seller's sole obligation hereunder shall be to utilize
commercially reasonable efforts to obtain a Tenant Estoppel Certificate
from each tenant at the Property (such reasonable efforts obligations not
including any obligation to institute legal proceedings or to expend monies
therefor). Either party shall have the right to extend the Closing Date
for up to five (5) business days in order to satisfy the condition set
forth in this paragraph (such right being exercised by such party giving
written notice to the other party not later than the Closing Date).
X. XXXX ESTOPPEL CERTIFICATE. Receipt of an estoppel
certificate from Xxxx (the "XXXX ESTOPPEL CERTIFICATE"), substantially in
the form of Exhibit "E" attached hereto and made a part hereof, and
containing no material adverse exceptions, qualifications and modifications
with respect to the Xxxx Lease shall be a condition precedent to Buyer's
obligation to consummate the transactions contemplated in this Agreement.
Seller's sole obligation hereunder shall be to utilize economically
reasonable efforts to obtain the Xxxx Estoppel Certificate (such reasonable
efforts obligations not including any obligation to institute legal
proceedings or to expend monies therefor). Either party shall have the
right to extend the Closing Date for up to five (5) business days in order
to satisfy the condition set forth in this paragraph (such right being
exercised by such party giving written notice to the other party not later
than the Closing Date). Without limitation on the matters contained
herein, if the resignation of the existing trustees, members and other
officers of ENCURC and substitution of Buyer's designees as provided for
herein would require the approval of the landlord under which the Xxxx
Lease, such approval shall be included as part of the Xxxx Estoppel
Certificate required hereunder.
E. NEW YORK LIFE LOAN MATTERS. Receipt of an estoppel
certificate from New York Life dated not more than 30 days prior to the
Closing Date (which Lender's Estoppel shall also include the consent of New
York Life to the transactions contemplated by the terms of this Agreement
and shall contain no material adverse exceptions qualifications or other
modification), a statement of the amount that will, at Closing, be in the
escrow accounts held in connection with the "Xxxxx & Xxxxxxxxx Escrow
Agreement" and the "Releasing Expense Escrow Agreement" (as such terms are
defined in Exhibit "B" hereto), together with a release of Seller under the
New York Life Loan Documents, shall be a condition precedent to the
obligations of Seller and of Buyer to consummate the transactions
contemplated in this Agreement. In addition, Buyer shall have received a
written commitment acceptable to Buyer (the "LOAN COMMITMENT") from New
York Life for an additional loan of not less than $8,500,000 on or before
December 17, 1997 (the "NEW YORK LIFE CONTINGENCY PERIOD"). The foregoing
estoppel and release are herein called the "LENDER AGREEMENTS". The Lender
Agreements shall be substantially in the form which Seller and Buyer shall
reasonably agree upon during the Due Diligence Period. In the event that
either (i) on or before the Closing Date such Lender Agreements is not
delivered or fails to include any required consent or release or contains
such consent or release but only upon the condition that the terms of such
instruments be modified in a manner reasonably unacceptable to Buyer or
Seller, as appropriate or (ii) Buyer fails to give written notice to Seller
that Buyer has obtained the Loan Commitment, then the obligations of Seller
and of Buyer to consummate the transactions contemplated in this Agreement
shall terminate. Buyer shall provide to Lender all information reasonably
required by Lender (including, without limitation, financial statements of
Purchaser and its principals). Seller and Buyer shall reasonably cooperate
in connection with obtaining the consent of New York Life hereunder. The
sole obligation of Seller and Buyer hereunder with respect to obtaining the
Lender Agreements shall be to utilize reasonable efforts to obtain such
Lender Agreements (such reasonable efforts not including any obligation to
institute legal proceedings or to expend any additional monies therefor).
Either party shall have the right to extend the Closing Date for up to five
(5) business days in order to satisfy the condition set forth in this
paragraph with respect to obtaining the Lender Agreements (such right being
exercised by such party giving written notice to the other party not later
than the Closing Date).
F. RESIGNATION OF ENCURC TRUSTEES/MEMBERS/OFFICERS. The
appointment of the Buyer Trustees followed by the resignation of the Seller
Trustees and all other existing members and officers of ENCURC, such that
designees of Buyer shall, at Closing, become trustees, members and
officers, shall be a condition precedent to the obligation of Buyer to
consummate the transactions contemplated in this Agreement, it being
understood and agreed that Seller hereby covenants and agrees to cause such
resignations of the existing trustees, members and officers of ENCURC at
Closing and to take such further acts reasonable or necessary to effectuate
the transfer of control of ENCURC to Buyer designees as contemplated herein
(provided the same do not impose material costs, obligations or liabilities
not otherwise contemplated by this Agreement).
G. PERFORMANCE BY SELLER. The performance and observance,
in all material respects, by Seller of all covenants and agreements of this
Agreement to be performed or observed by Seller prior to or on the Closing
Date shall be a condition precedent to Buyer's obligation to purchase the
Property; provided however, unless this Agreement has previously
terminated, if Seller tenders full performance on the Closing Date, and has
otherwise cured all existing defaults, if any, Buyer shall not refuse to
perform its obligations hereunder on the basis of a prior breach by Seller
hereunder. In addition, in the event that on the Closing Date, there shall
have occurred any material adverse changes in the representations or
warranties of Seller contained in paragraph 8A below which are not
otherwise permitted or contemplated by the terms of this Agreement, then
Buyer shall have the right to terminate this Agreement. Buyer shall have
the option to waive the condition precedent set forth in this paragraph 5G
by written notice to Seller. In the event of such waiver, such condition
shall be deemed satisfied.
H. PERFORMANCE BY BUYER. The performance and observance, in
all material respects, by Buyer of all covenants and agreements of this
Agreement to be performed or observed by it prior to or on the Closing Date
shall be a condition precedent to Seller's obligation to sell the Property;
provided however, unless this Agreement has previously terminated, if Buyer
tenders full performance on the Closing Date, and has otherwise cured all
existing defaults, if any, Seller shall not refuse to perform its
obligations hereunder on the basis of a prior breach by Buyer hereunder.
In addition, in the event that on the Closing Date there shall have
occurred any material adverse changes in the representations or warranties
of Buyer contained in paragraph 8B below which are not permitted or
contemplated by the terms of this Agreement, then Seller shall have the
right to terminate this Agreement. Seller shall have the option to waive
the condition precedent set forth in this paragraph 5H by written notice to
Buyer. In the event of such waiver, such condition shall be deemed
satisfied.
6. CLOSING PROCEDURE. The closing ("CLOSING") of the transactions
provided herein shall be consummated at a closing conference ("CLOSING
CONFERENCE"), which shall be held on the Closing Date at Seller's offices
at 000 Xxxxx Xxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx, or at the offices of New
York Life, if required by New York Life in connection with the assumption
of the New York Life Loan hereunder. As used herein, "CLOSING DATE" means
December 18, 1997, or such earlier date as may be agreed upon by Buyer and
Seller.
A. ESCROW. On or before the Closing Date, the parties shall
deliver to Title Company the following: (1) by Seller, a duly executed and
acknowledged original assignment and assumption of the ENCURC Ground Lease
("ENCURC GROUND LEASE ASSIGNMENT AND ASSUMPTION") in the form of Exhibit
"G" attached hereto and made a part hereof, and an assignment of the ENCURC
Note and ENCURC Mortgage in the form of Exhibit "H" attached hereto and
made a part hereof ("ENCURC LOAN ASSIGNMENT"), together with the original
ENCURC Note, and (2) by Buyer, the Closing Payment in immediately available
federal funds, a duly executed and acknowledged ENCURC Ground Lease
Assignment and Assumption, and such documents and agreements as may be
reasonably required by New York Life to effectuate the assumption of the
New York Life Loan as contemplated herein. Such deliveries shall be made
pursuant to closing procedure instructions ("CLOSING INSTRUCTIONS") to be
executed among Buyer, Seller and Title Company in form reasonably
acceptable to such parties in order to effectuate the intent hereof. The
conditions Closing shall include the Title Company's receipt of the
documents provided for herein, the Closing Payment and a notice from each
of Buyer and Seller authorizing Title Company to close the transactions as
contemplated herein (each of Buyer and Seller being obligated to deliver
such authorization notice at the Closing Conference as soon as it is
reasonably satisfied that the other party is in a position to deliver the
items to be delivered by such other party under subparagraph B below).
B. DELIVERY TO PARTIES. Upon the satisfaction of the
conditions set forth in the Escrow Instructions, then (x) the ENCURC Ground
Lease Assignment and Assumption shall be delivered to Buyer by Title
Company's depositing the same for recordation, the ENCURC Note and ENCURC
Loan Assignment shall be delivered to Buyer, (y) the Closing Payment (and
the Escrow Deposit), together with a duplicate original of the ENCURC
Ground Lease Assignment and Assumption shall be delivered by Title Company
to Seller and (z) at the Closing Conference, the following items shall be
delivered:
(1) SELLER DELIVERIES. Seller shall deliver, or cause
to be delivered, to Buyer the following:
(a) A duly executed and acknowledged xxxx of
sale, assignment and assumption agreement ("ASSIGNMENT AND ASSUMPTION
AGREEMENT") with respect to the Personal Property and the Leases, security
deposits, contracts and other rights to be transferred hereunder, in the
form of Exhibit "I" attached hereto and made a part hereof;
(b) Duly executed and acknowledged certificates
regarding the "non-foreign" status of Seller;
(c) Appointments of Buyer Trustees as Trustees of
ENCURC and written resignations of all of the Seller Trustees and all other
existing members and officers of ENCURC;
(d) Written notices ("NOTICES OF CLOSING") of the
transfer and conveyances hereunder to Xxxx, tenants and other parties as
may be reasonably required by (and in form reasonably acceptable to) Seller
and Buyer;
(e) A certificate of Seller ("SELLER CLOSING
CERTIFICATE") updating the representations and warranties contained in
paragraph 8A hereof to the Closing Date and noting any changes thereto
(which certificate shall be joined in by ENCURC in the same manner as
ENCURC has joined in this Agreement);
(f) Evidence reasonably satisfactory to Buyer and
Title Company respecting the due organization of Seller and ENCURC and the
due authorization and execution of this Agreement and the documents
required to be delivered hereunder by Seller and ENCURC, as appropriate;
(g) An opinion letter from a law firm reasonably
satisfactory to Buyer that ENCURC is duly organized and validly existing
under the laws of the State of Ohio that ENCURC has the authority to enter
into this transaction and carry out its terms, that such transaction is not
prohibited by law and, to the knowledge of the attorney preparing such
opinion letter, does not conflict with any agreements to which ENCURC is a
party;
(h) To the extent applicable, the Lender
Agreements duly executed by Seller;
(i) To the extent not previously delivered to
Buyer, Seller shall either deliver at Closing or cause to be retained at
the Property all certificates of occupancy, licenses, permits, plans and
specifications, third party guaranties or warranties respecting
construction, installation or maintenance of the Property, leases (and all
written correspondence with third parties respecting same), contracts, and
other agreements to be assigned hereunder, keys tagged for identification,
and operating and billing records maintained at the Property, all to the
extent the same are in Seller's possession; and
(j) Such additional documents (including transfer
tax declarations and the like) as may be reasonably required by Buyer or
Title Company in order to consummate the transactions hereunder (provided
the same do not materially increase the costs to, or liability or
obligations of, Seller in a manner not otherwise provided for herein).
(2) BUYER DELIVERIES. Buyer shall deliver, or cause to
be delivered, to Seller the following:
(a) A duly executed and acknowledged Assignment
and Assumption Agreement;
(b) Duly executed Notices of Closing;
(c) A certificate of Buyer ("BUYER CLOSING
CERTIFICATE") updating the representations and warranties contained in
paragraph 8B hereof to the Closing Date and noting any changes thereto;
(d) To the extent applicable, the Lender
Agreements duly executed by Buyer;
(e) Evidence reasonably satisfactory to Seller
and Title Company respecting the due organization of Buyer and the due
authorization and execution of this Agreement and the documents required to
be delivered hereunder; and
(f) Such additional documents (including transfer
tax declarations and the like) as may be reasonably required by Seller or
Title Company in or to consummate the transactions hereunder (provided the
same do not materially increase the costs to, or liability or obligations
of, Buyer in a manner not otherwise provided for herein).
C. CLOSING COSTS. Seller shall pay at Closing (i) any
transfer tax attributable to the ENCURC Ground Lease Assignment and
Assumption, (ii) the title insurance premium for the Title Policies at a
rate not in excess of standard issue rates, (iii) the costs to update the
Survey, and (iv) any recording fees attributable to the documents releasing
the Loan. Buyer shall pay at Closing (i) the costs of all so-called
"extended coverage" in connection with, or endorsements to, the Title
Policies, together with the cost of any other title insurance coverage
(such as lender's insurance policies), and (ii) all fees, costs or expenses
incurred by Buyer in connection with Buyer's due diligence reviews
hereunder. Each of Seller and Buyer shall pay its own attorneys' fees and
its respective share of prorations as hereinafter provided.
Notwithstanding the foregoing, in the event the sale contemplated hereby
does not close on the Closing Date, then each party shall pay all costs
incurred by it.
D. PRORATIONS.
(1) ITEMS TO BE PRORATED. The following shall be
prorated between Seller and Buyer as of the Closing Date:
(a) Real property taxes and general and special
assessments upon the Property shall be adjusted on an accrual basis and
prorated, as of the Closing Date on the basis of the fiscal year for such
taxes and assessments (the "TAX YEAR"). If the Closing shall occur before
the real property tax rate for the Tax Year is fixed, the apportionment of
taxes shall be made on the basis of a good faith estimate of Seller and
Buyer. After the real property taxes are finally fixed for the Tax Year in
which the Closing occurs, Buyer and Seller shall make a recalculation of
the apportionment of such taxes, and Buyer or Seller, as the case may be,
shall make an appropriate payment to the other based on such recalculation.
To the extent that either the Seller or Buyer shall obtain any real estate
tax abatement with respect to the Property which is applicable to the year
in which the Closing occurs, the amount of the net proceeds of such tax
abatement shall be prorated through the Closing Date if, as and when such
proceeds are paid or applied (and if applied, Buyer shall promptly after
notice of such application remit to Seller its share) by the applicable
governmental authority (it being understood that to the extent any tenant
shall be entitled to any portion of such tax abatement, that such portion
shall be turned over to Buyer to remit to such tenant and shall be deducted
from any tax abatement proceeds in connection with calculating the net
proceeds thereto). In no event shall Seller be charged with or be
responsible for any increase in the taxes on the Property resulting from
the sale of the Property or from any improvements made or leases entered
into on or after the Closing Date. If any assessments on the Property are
payable in installments, then the installment for the current period shall
be prorated (with Buyer assuming the obligation to pay any installments due
after the Closing Date).
(b) All fixed and additional rentals under the
leases, refundable security deposits (together with interest on such
deposits to the extent required by law or by the terms of the applicable
leases) and other tenant charges. Seller shall deliver or provide a credit
in an amount equal to all prepaid rentals for periods after the Closing
Date and all refundable security deposits (to the extent the foregoing are
held by Seller and are not applied or forfeited prior to the Closing Date)
to Buyer on the Closing Date. Rents which are unpaid as of the Closing
Date shall not be prorated on the Closing Date. Buyer shall include such
delinquencies in its normal billing and shall diligently pursue the
collection thereof in good faith after the Closing Date (but Buyer shall
not be required to litigate or declare a default in any lease). To the
extent Buyer receives rents on or after the Closing Date, such payments
shall be applied first toward then current rent owed to Buyer in connection
with the applicable lease for which such payments are received, and any
excess monies received shall be applied toward the payment of any
delinquent rents, with Seller's share thereof being promptly delivered to
Seller. Buyer may not waive any delinquent rents nor modify a lease so as
to reduce or otherwise affect amounts owed thereunder for any period in
which Seller is entitled to receive a share of charges or amounts without
first obtaining Seller's written consent. With respect to delinquent rents
and any other amounts or other rights of any kind respecting tenants who
are no longer tenants of the Property as of the Closing Date, Seller shall
retain all rights relating thereto. Notwithstanding the foregoing,
escalation rents and "pass throughs" shall be prorated as follows: At the
end of the fiscal year in which the Closing occurs with respect to which
escalation rents and "pass throughs" are payable under each lease, there
shall be a calculation of the portion of such rents to which Seller shall
be entitled, which portion shall be equal to a fraction, the numerator of
which is the number of days in said fiscal year with respect to each such
lease which elapsed prior to the Closing Date and the denominator of which
is the total number of days in said fiscal year, and Buyer shall be
entitled to the remaining portion of such rents. If Seller has received
escalation rents or "pass throughs" with respect to any lease for a fiscal
year in excess of the amount to which it is entitled pursuant hereto, such
excess shall be paid by Seller to Buyer within ten (10) business days after
the date of such calculation. If Buyer has received escalation rents or
"pass throughs" with respect to any lease for such fiscal year in excess of
the amount to which it is entitled pursuant hereto, such excess shall be
paid by Buyer to Seller within ten (10) business days after the date of
such calculation.
(c) Rentals and other payments, under the ENCURC
Ground Lease and the Xxxx Ground Lease.
(d) Installments and other payments under the
ENCURC Note and ENCURC Mortgage.
(e) Interest under the New York Life Loan
Documents.
(f) Seller shall assign to Buyer its interest in
the Xxxxx & Xxxxxxxxx Escrow Agreement and the Releasing Expense Escrow
Agreement, and to the escrow amounts held thereunder, and Buyer shall pay
to Seller an amount equal to (i) the sum of the escrow balances held
thereunder as of the Closing Date (currently being approximately $251,000
in the Xxxxx & Xxxxxxxxx Escrow account and approximately $716,000 in the
Releasing Expense Escrow account, with balances anticipated to be
approximately $160,000 and $437,000, respectively at Closing), minus (ii)
$100,000.
(g) If the Closing shall occur before the actual
amount of utilities, water or sewer meter charges or other operating
expenses with respect to the Property for the month in which the Closing
occurs are determined, the apportionment of such utilities, water or sewer
meter charges or other operating expenses shall be upon the basis of a
reasonable estimate by Seller and Buyer of such utilities, water or sewer
meter charges or other operating expenses for such month. Subsequent to
the Closing, when the actual amount of such utilities, water or sewer meter
charges or other operating expenses with respect to the Property for the
month in which the Closing occurs are determined, the parties agree to
adjust the proration of such utilities, water or sewer meter charges or
other operating expenses and, if necessary, to refund or repay such sums as
shall be necessary to effect such adjustment.
(h) Other operating expenses (including under any
"Service Agreements", as hereinafter defined, assigned hereunder).
(2) CALCULATION. The prorations and payments shall be
made on the basis of a written statement submitted to Buyer and Seller by
Escrow Holder prior to the Close of Escrow and approved by Buyer and
Seller. In the event any prorations or apportionments made under this
subparagraph D shall prove to be incorrect for any reason, then any party
shall be entitled to an adjustment to correct the same provided written
notice of such inaccuracy and request for correction is given within six
months after the date hereof. Any item which cannot be finally prorated
because of the unavailability of information shall be tentatively prorated
on the basis of the best data then available and reprorated when the
information is available, but not later than six months after the date
hereof.
7. CONDEMNATION OR DESTRUCTION OF PROPERTY. Seller shall promptly
give notice to Buyer in the event that, after the date hereof but prior to
the Closing Date, either any portion of the Property is taken pursuant to
eminent domain proceedings or any of the improvements on the Property are
damaged or destroyed by any casualty. Seller shall have no obligation to
repair or replace any such damage or destruction. Seller shall, upon
consummation of the transaction herein provided, assign to Buyer all claims
of Seller respecting any condemnation or casualty insurance coverage, as
applicable, and all condemnation proceeds or proceeds from any such
casualty insurance received by Seller on account of any casualty (the
damage from which shall not have been repaired by Seller prior to the
Closing Date), as applicable (together with any deductible which may be
payable under Seller's insurance policy with respect to any applicable
casualty); provided, however, that Seller shall retain any proceeds
received (and the right to receive any proceeds) of rental income insurance
or a temporary taking award that are attributable to a period prior to the
Closing Date. In the event the condemnation award or the cost of repair of
damage to the Property on account of a casualty, as applicable, shall
exceed $500,000, Buyer may, at its option, terminate this Agreement by
notice to Seller, given on or before the Closing Date; provided, however,
Buyer shall have not less than five (5) business days after it receives
notice of any condemnation or casualty to examine the Property to determine
the extent of the damage (and the Closing Date shall be extended, if
necessary, to permit such 5-day review).
8. REPRESENTATIONS, WARRANTIES AND COVENANTS.
A. REPRESENTATIONS, WARRANTIES AND COVENANTS OF SELLER.
(1) GENERAL DISCLAIMER. Except as specifically set
forth in Paragraph 8A(2) below, the sale of the Property hereunder is and
will be made on an "as is" basis, without representations and warranties of
any kind or nature, express, implied or otherwise, including, but not
limited to, any representation or warranty concerning title to the
Property, the physical condition of the Property (including, but not
limited to, the condition of the soil or the Improvements), the
environmental condition of the Property (including, but not limited to, the
presence or absence of hazardous substances on or respecting the Property),
the compliance of the Property with applicable laws and regulations
(including, but not limited to, zoning and building codes or the status of
development or use rights respecting the Property), the financial condition
of the Property or any other representation or warranty respecting any
income, expenses, charges, liens or encumbrances, rights or claims on,
affecting or pertaining to the Property or any part thereof. Except as to
matters specifically set forth in Paragraph 8A(2) below, Buyer will acquire
the Property solely on the basis of its own physical and financial
examinations, reviews and inspections and the title insurance protection
afforded by the Owner's Policy. Without limitation thereon, Buyer hereby
waives any and all rights of contribution or other rights or remedies
against Seller under the Comprehensive Environmental Response Compensation
and Liability Act or any other applicable environmental laws, rules or
regulations.
(2) LIMITED REPRESENTATIONS AND WARRANTIES OF SELLER.
Subject to the provisions of Paragraph 8A(1) above, Seller hereby
represents and warrants that, except as set forth in Exhibit "J" attached
hereto and made a part hereof.
(a) RENT ROLL. Attached as Exhibit "K-1" and
made a part hereof is a true, complete and accurate list, as of the date
thereof, of all Leases (and all modifications and amendments thereto)
respecting the Property. In addition, the other information set forth in
Exhibit "K-1" is, to Seller's knowledge, true and correct. To Seller's
knowledge, the Leases are in full force and effect. To Seller's knowledge,
Seller has not received any written notice of a material default under any
of such Leases that remains uncured. Seller has satisfied all tenant
improvement and brokerage obligations under the Leases that arose prior to
the date hereof relating to the Property. All brokerage agreements
providing for the payment of commissions or fees which will be payable
after Closing (and are to be assumed by Buyer) are listed in Exhibit "K-2"
attached hereto. Notwithstanding anything to the contrary contained
herein, Seller shall have no obligation or liability to Buyer with respect
to any of the foregoing matters which shall be confirmed as correct in any
Tenant Estoppel Certificate which may be delivered hereunder.
(b) GROUND LEASES.
(i) ENCURC GROUND LEASE. The list of
documents comprising the ENCURC Ground Lease as described in Paragraph 1 of
this Agreement is true, accurate and complete and, except as set forth
therein, the ENCURC Ground Lease has not been modified or amended. Neither
Seller nor ENCURC is in monetary default or material non-monetary default
under the ENCURC Ground Lease that remains uncured (and Seller has no
knowledge of any event or condition which, with the passage of time or the
giving of notice, would constitute a material default thereunder). To
Seller's knowledge, the ENCURC Ground Lease is in full force and effect.
(ii) XXXX GROUND LEASE. The list of
documents comprising the Xxxx Ground Lease as described in Paragraph 1 of
this Agreement is true, accurate and complete and, except as set forth
therein, the Xxxx Ground Lease has not been modified or amended. Neither
Seller nor, to Seller's knowledge, the landlord under the Xxxx Ground Lease
is in monetary default or material non-monetary default under the Xxxx
Ground Lease that remains uncured (and Seller has no knowledge of any event
or condition which, with the passage of time or the giving of notice, would
constitute a material default thereunder). To Seller's knowledge, the Xxxx
Ground Lease is in full force and effect.
(c) NEW YORK LIFE LOAN. The list of documents
comprising the New York Life Loan Documents as described in Paragraph 1 of
this Agreement is true, accurate and complete and, except as set forth
therein, the New York Life Loan Documents have not been modified or
amended. To Seller's knowledge, the New York Life Loan Documents are in
full force and effect. Seller is not in monetary default or material
non-monetary default under the New York Life Loan Documents that remains
uncured. Notwithstanding anything to the contrary contained herein, Seller
shall have no obligation or liability to Buyer with respect to any of the
foregoing matters which shall be confirmed as correct in any Lender's
Certificate which may be delivered hereunder.
(d) ENCURC NOTE AND MORTGAGE. The list of
documents comprising the ENCURC Note and Mortgage as described in Paragraph
1 of this Agreement is true, accurate and complete and, except as set forth
therein, neither the ENCURC Note nor the ENCURC Mortgage has been modified
or amended. ENCURC is not in monetary default or material non-monetary
default under the ENCURC Note or the ENCURC Mortgage (and Seller has no
knowledge of any event or condition which, with the passage of time or the
giving of notice, would constitute a material default thereunder). To
Seller's knowledge, the ENCURC Note and ENCURC Mortgage are in full force
and effect. Seller has not sold, transferred, assigned or encumbered its
interest in the ENCURC Note and ENCURC Mortgage (except as described in the
New York Life Loan Documents).
(e) LITIGATION. There is no pending action,
litigation, condemnation or other proceeding against the Property or
against Seller OR ENCURC with respect to the Property.
(f) COMPLIANCE. Neither Seller nor ENCURC has
received written notice from any governmental authority having jurisdiction
over the Property, nor does Seller have any knowledge, that the Property is
not in compliance with applicable laws and ordinances (including, without
limitation, zoning, building and fire laws, ordinances or regulations) or
that Seller or the Property does not have any certificates of occupancy,
licenses or permits necessary for the operation of the Property.
(g) SERVICE AGREEMENTS. Neither Seller nor ENCURC
has entered into any service agreements or contracts ("SERVICE AGREEMENTS")
or other agreements (other than as set forth in this Agreement) relating to
the Property which will be in force on the Closing Date, except as
described in Exhibit "L" attached hereto, and, to Seller's knowledge,
Seller has not received any written notice of any material default
thereunder that remains uncured.
(e) DUE AUTHORITY.
(1) SELLER. This Agreement and all
agreements, instruments and documents herein provided to be executed or to
be caused to be executed by Seller are and on the Closing Date will be duly
authorized, executed and delivered by and are binding upon Seller. Seller
is a partnership, duly organized and validly existing under the laws of the
State of Illinois, and is duly authorized and qualified to do all things
required of it under this Agreement. Seller has the capacity and authority
to enter into this Agreement and consummate the transactions herein
provided.
(2) ENCURC. This Agreement and all
agreements, instruments and documents herein provided to be executed or to
be caused to be executed by ENCURC and the resignation of the Seller
Trustees and all other existing members and officers of ENCURC and the
appointment of the Buyer Trustees as contemplated herein, are and on the
Closing Date will be duly authorized, executed and delivered by and are
binding upon ENCURC. ENCURC is a nonprofit corporation, duly organized and
validly existing under the laws of the State of Ohio, and is duly
authorized and qualified to do all things required of it under this
Agreement. Without limitation thereon, ENCURC has complied in all material
respects with respect to all applicable laws relating to its non-profit
and/or non-taxable status. ENCURC has the capacity and authority to enter
into this Agreement and consummate the transactions herein provided. There
are no franchise, income or other taxes owed by or due from ENCURC which
have not (or at Closing will not have) been paid. Attached hereto as
Exhibit "N" is a current financial statement for ENCURC.
(f) Intentionally Deleted.
(g) NO EMPLOYEES. Neither Seller nor ENCURC has,
and as of Closing will not have, any employees in connection with its
operation of the Property (all such persons so employed at the Property
being employees of Seller's third party property management company) and
Seller has not entered into any employment agreements in connection with
the Property.
PERSONAL PROPERTY. The Listed Personal Property
included in this sale are owned free and clear of any liens and
encumbrances, except for the Permitted Exceptions.
ERISA MATTERS. Neither Seller nor ENCURC maintains
or has maintained, contributes to or has contributed to, any employee
pension benefit plan as defined in Section 3(3) of the Employee Retirement
Income Security Act of 1974, as amended ("ERISA") (including a
multiemployer plan as defined in Section 4001(a)(3) of ERISA) that is
covered by Title IV of ERISA or subject to the minimum funding standards of
Section 412 of the code ("Plan").
NO BANKRUPTCY. Neither Seller nor ENCURC has
(i) made a general assignment for the benefit of creditors, (ii) filed any
voluntary petition in bankruptcy or suffered the filing of an involuntary
petition by its creditors, (iii) suffered the appointment of a receiver to
take possession of all or substantially all of its assets, (iv) suffered
the attachment, or other judicial seizure of all, or substantially all, of
its assets, (v) admitted in writing its inability to pay its debts as they
come due, or (vi) made an offer of settlement, extension or compromise to
its creditors generally.
NO OPTIONS. Except as may be set forth in the
Tenant Leases or Permitted Exceptions, Seller has not
granted any third party option or other right to purchase the Property.
Seller has received a waiver of the right of first opportunity set forth in
Section 22(a) of the lease with National City Bank with respect to a sale
of the Property on the terms set forth in this Agreement and, as a result
such right has been waived, and is not applicable, to the sale hereunder.
FINANCIAL AGREEMENT. To Seller's and ENCURC's
knowledge, neither Seller nor ENCURC is in default under, or otherwise
failed to comply in any material manner with, that certain Financial
Agreement dated June 30, 1977 between the City of Cleveland and ENCURC
(which agreement, together with any amendments thereto, is herein called
the "FINANCIAL AGREEMENT").
DEFINITION OF KNOWLEDGE. As used herein, the
phrase "to Seller's knowledge" means only the present actual knowledge of
Xxxxx Xxxxxx, the partnership coordinator for JMB Realty Corporation
currently overseeing the investments of Seller in the Property, after
having Seller's third party property manager and leasing agent review the
representations and warranties contained herein, but otherwise without any
duty to investigate and with any imputed or constructive knowledge being
excluded.
B. REPRESENTATIONS AND WARRANTIES OF BUYER. Buyer hereby
represents and warrants that this Agreement and all agreements, instruments
and documents herein provided to be executed or to be caused to be executed
by Buyer are and on the Closing Date will be duly authorized, executed and
delivered by and are binding upon Buyer; Buyer is a limited liability
company, duly organized, validly existing and in good standing under the
laws of the State of Delaware, and is duly authorized and qualified to do
all things required of it under this Agreement; and Buyer has the capacity
and authority to enter into this Agreement and consummate the transactions
herein provided.
C. SURVIVAL. Any cause of action of a party for a breach of
the foregoing representations and warranties shall survive until the date
which is one (1) year after Closing (the "SURVIVAL PERIOD"), at which time
such representations and
warranties (and any cause of action resulting from a breach thereof not
then in litigation) shall terminate. Notwithstanding
the foregoing, if Buyer shall have actual knowledge as of the Closing Date
that any of the representations or warranties of Seller contained herein
are false or inaccurate or that Seller is in breach or default of any of
its obligations under this Agreement, and Buyer nonetheless closes the
transactions hereunder and acquires the Property, then Seller shall have no
liability or obligation respecting such false or inaccurate representations
or warranties or other breach or default (and any cause of action resulting
therefrom shall terminate upon such closing hereunder). As used herein,
actual knowledge of Buyer means Xxxxxxx X. Xxxxxxxx.
D. INTERIM COVENANTS OF SELLER. Until the Closing Date or
the sooner termination of this Agreement:
(1) Seller shall maintain the Property in the same
manner as prior hereto pursuant to its normal course of business (such
maintenance obligations not including extraordinary capital expenditures or
expenditures not incurred in such normal course of business), subject to
reasonable wear and tear and further subject to destruction by casualty or
other events beyond the control of Seller.
(2) Seller shall not enter into any additional service
contracts or other similar agreements without the prior consent of Buyer,
except those deemed reasonably necessary by Seller, are at "market" rates
and are cancelable on 30 days' notice.
Seller shall have the right to continue to offer the
Property for lease in the same manner as prior hereto pursuant to its
normal course of business and shall keep Buyer reasonably informed as to
the status of leasing and material matters regarding existing tenants prior
to the Closing Date. After the expiration of the Due Diligence Period
(unless Buyer shall have theretofore delivered a Termination Notice
hereunder), Seller shall not enter into any new leases or material
modifications of Leases thereafter without the consent of Buyer. In no
event shall Seller have any obligation to enter into any new lease or
modify any existing lease unless Buyer shall agree to pay or reimburse
Seller on the Closing Date for all tenant improvement costs and leasing
commissions incurred by Seller under or in connection therewith (Buyer's
agreement to pay or reimburse for such amounts not to be unreasonably
withheld).
Neither ENCURC nor Seller shall enter into any
modification of the Xxxx Ground Lease, the ENCURC Ground Lease or the New
York Life Loan Documents without the prior written consent of Buyer.
Seller shall maintain its existing insurance (or
substantially equivalent coverage) through Closing.
9. DISPOSITION OF DEPOSIT. IF THE TRANSACTION HEREIN PROVIDED
SHALL NOT BE CLOSED BY REASON OF SELLER'S DEFAULT UNDER THIS AGREEMENT OR
THE FAILURE OF SATISFACTION OF THE CONDITIONS DESCRIBED IN PARAGRAPH 5
HEREOF OR THE TERMINATION OF THIS AGREEMENT IN ACCORDANCE WITH PARAGRAPH 7
HEREOF, AND BUYER SHALL NOT HAVE DEFAULTED UNDER THIS AGREEMENT, THEN THE
ESCROW DEPOSIT SHALL BE RETURNED TO BUYER, AND NEITHER PARTY SHALL HAVE ANY
FURTHER OBLIGATION OR LIABILITY TO THE OTHER; PROVIDED, HOWEVER, IF THE
TRANSACTIONS HEREUNDER SHALL FAIL TO CLOSE SOLELY BY REASON OF SELLER'S
DEFAULT, AND BUYER SHALL HAVE FULLY PERFORMED ITS OBLIGATIONS HEREUNDER AND
SHALL BE READY, WILLING AND ABLE TO CLOSE, THEN BUYER SHALL BE ENTITLED TO
SPECIFICALLY ENFORCE THIS AGREEMENT (BUT NO OTHER ACTION, FOR DAMAGES OR
OTHERWISE, SHALL BE PERMITTED). IN THE EVENT THE TRANSACTION HEREIN
PROVIDED SHALL NOT CLOSE FOR ANY REASON OTHER THAN THE FAILURE OF
SATISFACTION OF THE CONDITIONS DESCRIBED IN PARAGRAPH 5 HEREOF OR THE
TERMINATION OF THIS AGREEMENT IN ACCORDANCE WITH PARAGRAPH 7 HEREOF OR THE
DEFAULT OF SELLER, THEN THE ESCROW DEPOSIT SHALL BE DELIVERED TO SELLER AS
FULL COMPENSATION AND LIQUIDATED DAMAGES UNDER AND IN CONNECTION WITH THIS
AGREEMENT. IN THE EVENT THE TRANSACTION HEREIN PROVIDED SHALL CLOSE, THE
ESCROW DEPOSIT SHALL BE APPLIED AS A PARTIAL PAYMENT OF THE PURCHASE PRICE.
IN CONNECTION WITH THE FOREGOING, THE PARTIES RECOGNIZE THAT SELLER WILL
INCUR EXPENSE IN CONNECTION WITH THE TRANSACTION CONTEMPLATED BY THIS
AGREEMENT AND THAT THE PROPERTY WILL BE REMOVED FROM THE MARKET; FURTHER,
THAT IT IS EXTREMELY DIFFICULT AND IMPRACTICABLE TO ASCERTAIN THE EXTENT OF
DETRIMENT TO SELLER CAUSED BY THE BREACH BY BUYER UNDER THIS AGREEMENT AND
THE FAILURE OF THE CONSUMMATION OF THE TRANSACTION CONTEMPLATED BY THIS
AGREEMENT OR THE AMOUNT OF COMPENSATION SELLER SHOULD RECEIVE AS A RESULT
OF BUYER'S BREACH OR DEFAULT. IN THE EVENT THE SALE OF THE PROPERTY SHALL
NOT BE CONSUMMATED ON ACCOUNT OF BUYER'S DEFAULT, THEN THE RETENTION OF THE
ESCROW DEPOSIT SHALL BE SELLER'S SOLE AND EXCLUSIVE REMEDY UNDER THIS
AGREEMENT BY REASON OF SUCH DEFAULT, SUBJECT TO THE PROVISIONS OF
PARAGRAPH 10I HEREOF.
_________________ ________________
Seller's Initials Buyer's Initials
10. Miscellaneous.
A. Brokers.
(1) Except as provided in subparagraph (2) below, Seller
represents and warrants to Buyer, and Buyer represents and warrants to
Seller, that no broker or finder has been engaged by it, respectively, in
connection with any of the transactions contemplated by this Agreement or
to its knowledge is in any way connected with any of such transactions. In
the event of a claim for broker's or finder's fee or commissions in
connection herewith, then Seller shall indemnify and defend Buyer from the
same if it shall be based upon any statement or agreement alleged to have
been made by Seller, and Buyer shall indemnify and defend Seller from the
same if it shall be based upon any statement or agreement alleged to have
been made by Buyer. The indemnification obligations under this Paragraph
10A(1) shall survive the closing of the transactions hereunder or the
earlier termination of this Agreement.
(2) If and only if the sale contemplated herein closes,
Seller agrees to pay a brokerage commission to Xxxxxxx Xxxxx, LLC (the
"Broker") pursuant to a separate written agreement. The foregoing payment
shall be the sole commission, fee or payment payable to Broker in
connection with the transactions hereunder.
B. LIMITATION OF LIABILITY.
RE SELLER.
(a) Notwithstanding anything to the contrary
contained herein, if the closing of the transactions hereunder shall have
occurred (and Buyer shall not have waived, relinquished or released any
applicable rights in further limitation), the aggregate liability of Seller
arising pursuant to or in connection with the representations, warranties,
indemnifications, covenants or other obligations (whether express or
implied) of Seller under this Agreement (or any document executed or
delivered in connection herewith) or otherwise in connection with the
Property shall be limited to actual damages and shall in no event exceed
$2,000,000 in the aggregate.
(b) No constituent partner in or agent of Seller,
nor any advisor, trustee, director, officer, employee, beneficiary,
shareholder, participant, representative or agent of any corporation or
trust that is or becomes a constituent partner in Seller (including, but
not limited to, JMB Realty Corporation) shall have any personal liability,
directly or indirectly, under or in connection with this Agreement or any
agreement made or entered into under or pursuant to the provisions of this
Agreement, or any amendment or amendments to any of the foregoing made at
any time or times, heretofore or hereafter, and Buyer and its successors
and assigns and, without limitation, all other persons and entities, shall
look solely to Seller's assets for the payment of any claim or for any
performance, and Buyer, on behalf of itself and its successors and assigns,
hereby waives any and all such personal liability. Notwithstanding
anything to the contrary contained in this Agreement, neither the negative
capital account of any constituent partner in Seller (or in any other
constituent partner of Seller), nor any obligation of any constituent
partner in Seller (or in any other constituent partner of Seller) to
restore a negative capital account or to contribute capital to Seller (or
to any other constituent partner of Seller), shall at any time be deemed to
be the property or an asset of Seller or any such other constituent partner
(and neither Buyer nor any of its successors or assigns shall have any
right to collect, enforce or proceed against or with respect to any such
negative capital account of partner's obligation to restore or contribute).
(c) Notwithstanding the foregoing, (i) if Seller
or its successor-in-interest shall fail to retain reserves of at least
$2,000,000 at the time of closing hereunder or (ii) if during the period
commencing on the Closing Date and ending on the expiration of the Survival
Period, Seller or its successor-in-interest shall utilize such reserves for
any purpose other than the payment of claims, expenses, liabilities or
attorneys' fees of Seller or such successor-in-interest (including any
amounts incurred in connection with resolving or defending any claim of
liability hereunder) with respect to a breach or alleged breach of the
representations, warranties, indemnifications, covenants or other
obligations (whether express or implied) of Seller under this Agreement (or
any document executed or delivered in connection herewith), or is otherwise
related to, connected with or concerns the Property in any manner
(collectively, the "SPECIFIED LIABILITIES"), then subject to the terms and
conditions of this Agreement, Buyer may, during the Survival Period, look
to the assets of JMB Realty Corporation, as the general partner or the
general partners of Seller, for the payment of any Specified Liabilities;
provided, however, the aggregate liability of JMB Realty Corporation in
connection therewith shall not exceed $2,000,000 in the aggregate and shall
be further limited as follows:
(x) with respect to the initial reserve
amount, such liability shall be limited to the lesser of the amount by
which $2,000,000 exceeds the amount actually reserved by Seller or its
successor-in-interest in closing hereunder, and $2,000,000; or
(y) during the Survival Period, such
liability shall be limited to the lesser of the amount of such reserves
which, during the Survival Period, are utilized for purposes other than the
payment of the Specified Liabilities, and $2,000,000.
RE BUYER.
(a) Notwithstanding anything to the contrary
contained herein, if the closing of the transactions hereunder shall have
occurred (and Seller shall not have waived, relinquished or released any
applicable rights in further limitation), the aggregate liability of Buyer
arising pursuant to or in connection with the representations, warranties,
indemnifications, covenants or other obligations (whether express or
implied) of Buyer under this Agreement (or any document executed or
delivered in connection herewith) or otherwise in connection with the
Property shall be limited to actual damages and shall in no event exceed
$2,000,000 in the aggregate.
(b) No constituent partner in or agent of Buyer,
nor any advisor, trustee, director, officer, employee, beneficiary,
shareholder, participant, representative or agent of any corporation or
trust that is or becomes a constituent partner in Buyer shall have any
personal liability, directly or indirectly, under or in connection with
this Agreement or any agreement made or entered into under or pursuant to
the provisions of this Agreement, or any amendment or amendments to any of
the foregoing made at any time or times, heretofore or hereafter, and
Seller and its successors and assigns and, without limitation, all other
persons and entities, shall look solely to Buyer's assets for the payment
of any claim or for any performance, and Seller, on behalf of itself and
its successors and assigns, hereby waives any and all such personal
liability. Notwithstanding anything to the contrary contained in this
Agreement, neither the negative capital account of any constituent partner
in Buyer (or in any other constituent partner of Buyer), nor any obligation
of any constituent partner in Buyer (or in any other constituent partner of
Buyer) to restore a negative capital account or to contribute capital to
Buyer (or to any other constituent partner of Buyer), shall at any time be
deemed to be the property or an asset of Buyer or any such other
constituent partner (and neither Buyer nor any of its successors or assigns
shall have any right to collect, enforce or proceed against or with respect
to any such negative capital account of partner's obligation to restore or
contribute).
C. ENTIRE AGREEMENT. This Agreement contains the entire
agreement between the parties respecting the matters herein set forth and
supersedes all prior agreements between the parties hereto respecting such
matters. This Agreement may not be modified or amended except by written
agreement signed by both parties.
D. TIME OF THE ESSENCE. Time is of the essence of this
Agreement; provided, however, the parties acknowledge that, if reasonably
necessary to effectuate the transactions contemplated, the Closing Date may
be extended but in any event not for more than five (5) business days.
E. INTERPRETATION. Paragraph headings shall not be used in
construing this Agreement. Each party acknowledges that such party and its
counsel, after negotiation and consultation, have reviewed and revised this
Agreement. As such, the terms of this Agreement shall be fairly construed
and the usual rule of construction, to the effect that any ambiguities
herein should be resolved against the drafting party, shall not be employed
in the interpretation of this Agreement or any amendments, modifications or
exhibits hereto or thereto.
F. GOVERNING LAW. This Agreement shall be construed and
enforced in accordance with the laws of the State of Ohio.
G. SUCCESSORS AND ASSIGNS. Buyer may not assign or transfer
its rights or obligations under this Agreement without the prior written
consent of Seller (in which event such transferee shall assume in writing
all of the transferor's obligations hereunder, but such transferor shall
not be released from its obligations hereunder); provided, however, Buyer
may assign its interest in this Agreement to a limited liability company or
to a limited partnership in which Buyer is the managing member or managing
general partner and has not less than a 51% interest in capital and profits
in such limited partnership. No consent given by Seller to any transfer or
assignment of Buyer's rights or obligations hereunder shall be construed as
a consent to any other transfer or assignment of Buyer's rights or
obligations hereunder. No transfer or assignment in violation of the
provisions hereof shall be valid or enforceable. Subject to the foregoing,
this Agreement and the terms and provisions hereof shall inure to the
benefit of and be binding upon the successors and assigns of the parties.
H. NOTICES. Any notice which a party is required or may
desire to give the other shall be in writing and shall be sent by personal
delivery (including via facsimile transmission, provided that any notice
delivered by facsimile shall also thereafter be sent by mail or overnight
delivery service as hereinafter set forth) either by United States
registered or certified mail, return receipt requested, postage prepaid, or
by Federal Express or similar generally recognized overnight carrier
regularly providing proof of delivery), addressed as follows (subject to
the right of a party to designate a different address for itself by notice
similarly given):
TO BUYER:
BRE/National City, LLC
c/o Blackstone Realty Advisors
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xx. Xxxxxxx X. Xxxxxxxx
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
WITH COPY TO:
Weil, Gotshal & Xxxxxx, LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxx X. Xxxxxxxxx, Esq.
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
TO SELLER:
c/o JMB Realty Corporation
000 Xxxxx Xxxxxxxx Xxxxxx
00xx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xx. Xxxxx Xxxxxx
Facsimile: (000)000-0000
Telephone: (000)000-0000
WITH COPY TO:
Pircher, Xxxxxxx & Xxxxx
1999 Avenue of the Stars
Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Real Estate Notices (GML)
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
AND TO:
Xxxxxxx Xxxxx, LLC
Three First Xxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xx. Xxxxxxx X. Xxxxxxx
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
TO ESCROW HOLDER:
Commonwealth Land Title
Insurance Company
00 Xxxxx XxXxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Mr. Xxxxxx Xxxx
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
Any notice so given by mail or overnight delivery service shall be deemed
to have been given as of the date of delivery (whether accepted or refused)
established by U.S. Post Office return receipt or the overnight carrier's
proof of delivery, as the case may be. Any such notice not so given shall
be deemed given upon receipt of the same by the party to whom the same is
to be given. Notices may be given by legal counsel for a party.
I. LEGAL COSTS. The parties hereto agree that they shall
pay directly any and all legal costs which they have incurred on their own
behalf in the preparation of this Agreement, all deeds and other agreements
pertaining to this transaction and that such legal costs shall not be part
of the closing costs. In addition, if either Buyer or Seller brings any
suit or other proceeding with respect to the subject matter or the
enforcement of this Agreement, the prevailing party (as determined by the
court, agency or other authority before which such suit or proceeding is
commenced), in addition to such other relief as may be awarded, shall be
entitled to recover reasonable attorneys' fees, expenses and costs of
investigation actually incurred. The foregoing includes, but is not
limited to, attorneys' fees, expenses and costs of investigation
(including, without limitation, those incurred in appellate proceedings),
costs incurred in establishing the right to indemnification, or in any
action or participation in, or in connection with, any case or proceeding
under Chapter 7, 11 or 13 of the Bankruptcy Code (11 United States Code
Sections 101 ET SEQ.), or any successor statutes.
J. COUNTERPARTS. This Agreement may be executed in one or
more counterparts, each of which shall be deemed an original, but all of
which shall constitute one and the same document.
K. FURTHER ASSURANCES. Each party hereto will, from time to
time, execute and deliver to the other all such other and further
instruments and documents as such party may reasonably request in order to
effect the transactions contemplated by this Agreement, including, but not
limited to, instruments or documents reasonably deemed necessary or
desirable by such party to effect and evidence the conveyance of the
Property in accordance with the terms of this Agreement (provided the same
do not impose material costs, obligations or liabilities not otherwise
contemplated by this Agreement).
THE SUBMISSION OF THIS AGREEMENT FOR EXAMINATION IS NOT INTENDED TO
NOR SHALL CONSTITUTE AN OFFER TO SELL, OR A RESERVATION OF, OR OPTION OR
PROPOSAL OF ANY KIND FOR THE PURCHASE OF THE PROPERTY. IN NO EVENT SHALL
ANY DRAFT OF THIS AGREEMENT CREATE ANY OBLIGATION OR LIABILITY, IT BEING
UNDERSTOOD THAT THIS AGREEMENT SHALL BE EFFECTIVE AND BINDING ONLY WHEN A
COUNTERPART HEREOF HAS BEEN EXECUTED AND DELIVERED BY EACH PARTY HERETO TO
ESCROW HOLDER. ESCROW HOLDER SHALL DATE THIS AGREEMENT WITH THE DATE ON
WHICH ESCROW HOLDER SHALL HAVE RECEIVED THIS AGREEMENT EXECUTED BY BOTH
BUYER AND SELLER (AND SUCH DATE SHALL BE THE "EFFECTIVE DATE" FOR PURPOSES
HEREOF).
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
as of the Effective Date.
SELLER:
CARLYLE/NATIONAL CITY ASSOCIATES,
an Illinois general partnership
By: CARLYLE REAL ESTATE LIMITED
PARTNERSHIP-XI,
an Illinois limited partnership,
General Partner
By: JMB REALTY CORPORATION,
a Delaware corporation,
General Partner
By: _______________________
Name: ______________________
Title: ______________________
By: CARLYLE REAL ESTATE LIMITED
PARTNERSHIP-XII,
an Illinois limited partnership,
General Partner
By: JMB REALTY CORPORATION,
a Delaware corporation,
General Partner
By: ______________________
Name: _____________________
Title: _____________________
BUYER:
BRE/CITY CENTER, L.L.C.,
a Delaware limited liability company
By: _________________________________
Name: Xxxxxxx X. Xxxxxxxx
Title: Vice President
JOINDER BY ENCURC AND ITS TRUSTEES/MEMBERS
The undersigned constitute all of the trustees and members of ENCURC
and hold all of the ownership interests therein. The undersigned hereby
join in this Agreement for the sole purpose of agreeing to resign as
trustees and members at Closing, on the terms and conditions set forth
herein, and to confirm the accuracy of the representations and warranties
respecting ENCURC set forth in paragraph 8A of this Agreement. The
undersigned hereby agree to update such representations and warranties
(noting any changes thereto) at Closing. This joinder is executed by the
undersigned solely in their capacities as trustees and members, and no
personal liability, directly or indirectly, shall be incurred by or imposed
against the undersigned, Buyer and its successor and assigns and, without
limitation, all other persons and entities, agreeing to look solely to
ENCURC's assets for the payment of any claim or for any performances.
Buyer further agrees that its sole remedy for any breach or default
hereunder shall be either to terminate this Agreement (and receive a return
of the Escrow Deposit) or to pursue an action for specific performance of
the obligations respecting the resignations contemplated herein (it being
understood that a condition to Buyer's right to pursue specific performance
shall be that Buyer shall have fully performed its obligations under this
Agreement, and shall be ready, willing and able to close).
DATED: _______________, 1997 EUCLID-NINTH COMMUNITY URBAN
REDEVELOPMENT CORPORATION, an Ohio nonprofit corporation
By: ____________________________
Xxxx X. Xxxxxx, Trustee
____________________________
Xxxx X. Xxxxx, Trustee
____________________________
Xxxx Xxxxxxx, Trustee
ESCROW HOLDER'S ACKNOWLEDGEMENT
The undersigned hereby executes this Agreement to evidence its
agreement to act as Escrow Holder in accordance with the terms of this
Agreement.
Effective Date: _________, 1997 COMMONWEALTH LAND TITLE INSURANCE
COMPANY
By:____________________________
Name:______________________
Title:_____________________
"Escrow Holder"
EXHIBIT LIST
"A-1" - Property Description Re: ENCURC Land
"A-2" - Property Description Re: Xxxx Land
"B" - New York Life Loan Documents
"C" - Personal Property
"D" - Form of Tenant Estoppel Certificate
"E" - Form of Xxxx Estoppel Certificate
"F" - Intentionally deleted
"G" - ENCURC Ground Lease Assignment and Assumption
"H" - ENCURC Loan Assignment
"I" - Assignment and Assumption Agreement
"J" - Exceptions to Seller's Representations and Warranties
"K-1" - Rent Roll
"K-2" - Brokerage Agreements
"L-1" - Service Agreements
"L-2" - List of Leased Personal Property
XXXX OF SALE, ASSIGNMENT AND ASSUMPTION
(National City Center; Cleveland, Ohio)
FOR VALUABLE CONSIDERATION, receipt of which is hereby acknowledged,
the undersigned, CARLYLE/NATIONAL CITY ASSOCIATES, an Illinois general
partnership ("SELLER"), hereby sells, transfers, assigns and conveys to
BRE/CITY CENTER, LLC, a Delaware limited liability company ("BUYER"), the
following:
1. PERSONAL PROPERTY. All right, title and interest of Seller in
and to those items of tangible personal property described in Exhibit "A"
attached hereto and made a part hereof ("PERSONAL PROPERTY"), located upon,
and used in the operation of, that certain property commonly known as
National City Center, located in the City of Cleveland, County of Cuyahoga,
State of Ohio (collectively, the "PROPERTY").
2. LEASES. All right, title and interest of Seller in and to all
leases ("LEASES") relating to the Property and described in Exhibit "B"
attached hereto.
3. SERVICE AGREEMENTS. All right, title and interest of Seller in
and to all service agreements ("SERVICE AGREEMENTS") relating to the
Property, or any part of the same and described in Exhibit "C" attached
hereto.
4. INTANGIBLE PROPERTY. All right, title and interest of Seller,
to the extent assignable, in and to the name "National City Center", and
all contract rights, agreements, tenant lists, governmental permits,
licenses and approvals, advertising material and telephone exchange numbers
(collectively, the "INTANGIBLE PROPERTY") directly relating to the
Property.
This Xxxx of Sale, Assignment and Assumption is given pursuant to
that certain purchase agreement captioned "PURCHASE AGREEMENT (National
City Center, Cleveland, Ohio)" dated as of December 3, 1997 (as amended,
the "AGREEMENT"), between the Seller and Buyer, providing for, among other
things, the assignment of the Personal Property, Leases, Service Agreements
and Intangible Property. The covenants, agreements, and limitations
(including, but not limited to, the limitations of liability provided in
paragraph 10B of the Agreement) provided in the Agreement with respect to
the property conveyed hereunder are hereby incorporated herein by this
reference as if herein set out in full and shall inure to the benefit of
and shall be binding upon Seller and Buyer, and their respective successors
and assigns. Said property is conveyed "as is" without warranty or
representation, except as expressly provided in (and subject to the
limitations of) the Agreement.
This Xxxx of Sale, Assignment and Assumption may be executed in one
or more counterparts, each of which shall constitute an original, and all
of which, when taken together, shall constitute one and the same
instrument.
DATED: As of December ___, 1997.
SELLER:
CARLYLE/NATIONAL CITY ASSOCIATES,
an Illinois general partnership
By: CARLYLE REAL ESTATE LIMITED
PARTNERSHIP-XI,
an Illinois limited partnership,
General Partner
By: JMB REALTY CORPORATION,
a Delaware corporation,
General Partner
By: _________________________
Name: _________________________
Title:_________________________
By: CARLYLE REAL ESTATE LIMITED
PARTNERSHIP-XII,
an Illinois limited partnership,
General Partner
By: JMB REALTY CORPORATION,
a Delaware corporation,
General Partner
By: ____________________
Name:_____________________
Title:______________________
ASSUMPTION BY BUYER
As of this ____ day of December, 1997, Buyer hereby accepts the
foregoing assignment of Personal Property, Leases, Service Agreements and
Intangible Property assigned hereby and agrees to assume and discharge, in
accordance with the terms thereof, all of the burdens and obligations of
Seller thereunder, to the extent the same arise from and after the date
hereof.
BUYER:
BRE/CITY CENTER, L.L.C.,
a Delaware Limited Liability Company
By: ____________________
Name: Xxxxxxx X. Xxxxxxxx
Title: Vice President
EXHIBIT "A"
LIST OF PERSONAL PROPERTY
(See Attached)
EXHIBIT "B"
LIST OF LEASES
(See Attached)
EXHIBIT "C"
LIST OF SERVICE AGREEMENTS
(See Attached)
PAGE 8 OF LIST OF LEASES
That certain Storage Agreement dated as of March 1, 1997, between
Carlyle/National City Associates and Ernst & Young U.S., LLP.
That certain Access and Indemnity Agreement dated as of November 20, 1997,
by and between National City Bank and Carlyle/National City Associates.
IN WITNESS WHEREOF, this Assignment and Assumption Agreement has been
signed, sealed and delivered as of the date first written above.
ASSIGNOR:
CARLYLE/NATIONAL CITY ASSOCIATES,
an Illinois general partnership
By: CARLYLE REAL ESTATE LIMITED
PARTNERSHIP-XI,
an Illinois limited partnership,
General Partner
___________________________ By: JMB REALTY CORPORATION,
Print Name:________________ a Delaware corporation,
General Partner
___________________________
Print Name:________________ By:_____________________
Name:___________________
WITNESSES AS TO JMB REALTY Title:__________________
CORPORATION
By: CARLYLE REAL ESTATE LIMITED
PARTNERSHIP-XII,
an Illinois limited partnership,
General Partner
___________________________ By: JMB REALTY CORPORATION,
Print Name:________________ a Delaware corporation,
General Partner
___________________________
Print Name:________________ By:______________________
Name:____________________
WITNESSES AS TO JMB REALTY Title:___________________
CORPORATION
ASSIGNEE:
___________________________ BRE/CITY CENTER, L.L.C.,
Print Name:________________ a Delaware Limited Liability Company
___________________________ By:_________________________________
Print Name:________________ Name: Xxxxxxx X. Xxxxxxxx
Title: Vice President
WITNESSES AS TO BRE/CITY
CENTER, L.L.C.
STATE OF ILLINOIS)
) SS.
COUNTY OF XXXX )
Before me, a notary public in and for said county and state,
personally appeared the above-named CARLYLE/NATIONAL CITY ASSOCIATES, an
Illinois general partnership, by Carlyle Real Estate Limited Partnership-
XI, an Illinois limited partnership, its General Partner, by JMB Realty
Corporation, a Delaware corporation, its Corporate General Partner, by
____________________________, its ________________________, and by Carlyle
Real Estate Limited Partnership-XII, an Illinois limited partnership, its
General Partner, by JMB Realty Corporation, a Delaware corporation, its
Corporate General Partner, by ____________________, its
___________________________, who acknowledged that _______ did sign the
foregoing instrument as such officer, and that the same is ____ free act
and deed individually and as such officer and the free act and deed of said
corporations, limited partnerships, and of said general partnership.
IN TESTIMONY WHEREOF, I have hereunto subscribed my name and affixed
my official seal at Chicago, Illinois this ______ day of December, 1997.
____________________________________
Notary Public
STATE OF ILLINOIS)
) SS.
COUNTY OF XXXX )
Before me, a notary public in and for said county and state,
personally appeared the above-named BRE/CITY CENTER, L.L.C., a Delaware
limited liability company, by Xxxxxxx X. Xxxxxxxx, its Vice-President, who
acknowledged that he did sign the foregoing instrument, for and on behalf
of the limited liability company and that the same is the free act and deed
of said limited liability company , and the free act and deed of him
personally and as such officer.
IN TESTIMONY WHEREOF, I have hereunto subscribed my name and affixed
my official seal at Chicago, Illinois this ______ day of December, 1997.
____________________________________
Notary Public
ASSIGNMENT AND ASSUMPTION OF ENCURC GROUND LEASE
(National City Center; Cleveland, Ohio)
FOR VALUABLE CONSIDERATION, receipt of which is hereby acknowledged,
the undersigned, CARLYLE/NATIONAL CITY ASSOCIATES, an Illinois general
partnership ("SELLER"), hereby sells, transfers, assigns and conveys to
BRE/CITY CENTER, LLC, a Delaware limited liability company ("BUYER"), all
right, title and interest of Seller in and to that certain lease (the
"ENCURC GROUND LEASE") dated December 9, 1977, executed by Euclid-Ninth
Community Urban Redevelopment Corporation, an Ohio nonprofit corporation
("ENCURC"), as lessor, and National City Center Joint Venture ("NCCJV"), as
lessee, a memorandum of which is recorded in Volume 524, Page 459, of
Cuyahoga County, Ohio Lease Records, which lease was amended by Amendment
to Lease between ENCURC and NCCJV dated September 14, 1979, filed for
record November 21, 1980, and recorded in Volume 545, Page 95, of Cuyahoga
County Ohio Records, the lessee's interest in which was assigned by NCCJV
to Seller by Assignment of Lease dated July 27, 1983, filed for record on
July 27, 1983, and recorded in Volume 216, Page 499, of Cuyahoga County,
Ohio Records.
This Assignment and Assumption of ENCURC Ground Lease is given
pursuant to that certain purchase agreement captioned "PURCHASE AGREEMENT
(National City Center, Cleveland, Ohio)" dated as of December 3, 1997 (as
amended, the "AGREEMENT"), between the Seller and Buyer, providing for,
among other things, the assignment of the ENCURC Ground Lease. The
covenants, agreements, and limitations (including, but not limited to, the
limitations of liability provided in paragraph 10B of the Agreement)
provided in the Agreement with respect to the ENCURC Ground Lease conveyed
hereunder are hereby incorporated herein by this reference as if herein set
out in full and shall inure to the benefit of and shall be binding upon
Seller and Buyer, and their respective successors and assigns. Said ENCURC
Ground Lease is conveyed "as is" without warranty or representation, except
as expressly provided in (and subject to the limitations of) the Agreement.
This Assignment and Assumption of ENCURC Ground Lease may be executed
in one or more counterparts, each of which shall constitute an original,
and all of which, when taken together, shall constitute one and the same
instrument.
DATED: As of December ___, 1997.
SELLER:
CARLYLE/NATIONAL CITY ASSOCIATES,
an Illinois general partnership
By: CARLYLE REAL ESTATE LIMITED
PARTNERSHIP-XI,
an Illinois limited partnership,
General Partner
___________________________ By: JMB REALTY CORPORATION,
Print Name:________________ a Delaware corporation,
General Partner
___________________________
Print Name:________________ By:___________________________
Name:_________________________
WITNESSES AS TO JMB REALTY Title:________________________
CORPORATION
By: CARLYLE REAL ESTATE LIMITED
PARTNERSHIP-XII,
an Illinois limited partnership,
General Partner
___________________________ By: JMB REALTY CORPORATION,
Print Name:________________ a Delaware corporation,
General Partner
___________________________
Print Name:________________ By:___________________________
Name:_________________________
Witnesses as to JMB Realty Title:________________________
Corporation
ASSUMPTION BY BUYER
As of this ____ day of December, 1997, Buyer hereby accepts the
foregoing assignment of ENCURC Ground Lease assigned hereby and agrees to
assume and discharge, in accordance with the terms thereof, all of the
burdens and obligations of Seller thereunder, to the extent the same arise
from and after the date hereof.
BUYER:
___________________________ BRE/CITY CENTER, L.L.C.,
Print Name:________________ a Delaware Limited Liability
Company
___________________________ By:___________________________
Print Name:________________ Name: Xxxxxxx X. Xxxxxxxx
Title: Vice President
WITNESSES AS TO BRE/CITY
CENTER, L.L.C.
STATE OF ILLINOIS)
) SS.
COUNTY OF XXXX )
Before me, a notary public in and for said county and state,
personally appeared the above-named CARLYLE/NATIONAL CITY ASSOCIATES, an
Illinois general partnership, by Carlyle Real Estate Limited Partnership-
XI, an Illinois limited partnership, its General Partner, by JMB Realty
Corporation, a Delaware corporation, its Corporate General Partner, by
____________________________, its ________________________, and by Carlyle
Real Estate Limited Partnership-XII, an Illinois limited partnership, its
General Partner, by JMB Realty Corporation, a Delaware corporation, its
Corporate General Partner, by ____________________, its
___________________________, who acknowledged that _______ did sign the
foregoing instrument as such officer, and that the same is ____ free act
and deed individually and as such officer and the free act and deed of said
corporations, limited partnerships, and of said general partnership.
IN TESTIMONY WHEREOF, I have hereunto subscribed my name and affixed
my official seal at Chicago, Illinois this ______ day of December, 1997.
____________________________________
Notary Public
STATE OF ILLINOIS)
) SS.
COUNTY OF XXXX )
Before me, a notary public in and for said county and state,
personally appeared the above-named BRE/CITY CENTER, L.L.C., a Delaware
limited liability company, by Xxxxxxx X. Xxxxxxxx, its Vice-President, who
acknowledged that he did sign the foregoing instrument, for and on behalf
of the limited liability company and that the same is the free act and deed
of said limited liability company , and the free act and deed of him
personally and as such officer.
IN TESTIMONY WHEREOF, I have hereunto subscribed my name and affixed
my official seal at Chicago, Illinois this ______ day of December, 1997.
____________________________________
Notary Public
THIS INSTRUMENT PREPARED BY AND WHEN RECORDED RETURN TO:
Xxxxxxx X. Xxxxxxx, Esq.
Xxxxxxx, Xxxxxxx & Xxxxx
1999 Avenue of the Stars, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
ASSIGNMENT OF ENCURC LOAN DOCUMENTS
(National City Center; Cleveland, Ohio)
FOR VALUABLE CONSIDERATION, receipt of which is hereby acknowledged,
the undersigned, CARLYLE/NATIONAL CITY ASSOCIATES, an Illinois general
partnership ("SELLER"), hereby sells, transfers, assigns and conveys to
BRE/CITY CENTER, LLC, a Delaware limited liability company ("BUYER"), all
right, title and interest of Seller in and to that certain Mortgage Note,
dated December 9, 1977, made by Euclid-Ninth Community Urban Redevelopment
Corporation, an Ohio nonprofit corporation ("ENCURC"), and payable to the
order of National City Center Joint Venture ("NCCJV"), in the principal
amount of Fifty Nine Million Dollars ($59,000,000) (the "ENCURC NOTE"), and
secured by that certain Ohio Purchase Money Mortgage Deed executed by
ENCURC in favor of NCCJV, dated December 9, 1977, filed for record December
12, 1977, and recorded in Volume 14753, Page 207, of Cuyahoga County, Ohio
Records, as amended by Amendment to Mortgage, by and between ENCURC and
NCCJV, dated as of September 14, 1979, filed for record November 21, 1980,
and recorded in Volume 15751, Page 235, of Cuyahoga County, Ohio Records
(collectively, the "ENCURC MORTGAGE"), the mortgagee's interest in the
ENCURC Mortgage having been assigned to Seller by NCCJV by Assignment of
Note and Mortgage, dated July 27, 1983, filed for record July 27, 1983, and
recorded in Volume 216, Page 519, of Cuyahoga County, Ohio Records.
This Assignment of the ENCURC Note and ENCURC Mortgage is given
pursuant to that certain purchase agreement captioned "PURCHASE AGREEMENT
(National City Center, Cleveland, Ohio)" dated as of December 3, 1997 (as
amended, the "AGREEMENT"), between the Seller and Buyer, providing for,
among other things, the assignment of the ENCURC Note and ENCURC Mortgage.
The covenants, agreements, and limitations (including, but not limited to,
the limitations of liability provided in paragraph 10B of the Agreement)
provided in the Agreement with respect to the ENCURC Note and ENCURC
Mortgage are hereby incorporated herein by this reference as if herein set
out in full and shall inure to the benefit of and shall be binding upon
Seller and Buyer, and their respective successors and assigns. Said ENCURC
Note and ENCURC Mortgage are being conveyed without recourse, warranty or
representation, except as expressly provided in (and subject to the
limitations of) the Agreement.
This Assignment of the ENCURC Note and ENCURC Mortgage may be executed
in one or more counterparts, each of which shall constitute an original,
and all of which, when taken together, shall constitute one and the same
instrument.
DATED: As of December ___, 1997.
SELLER:
CARLYLE/NATIONAL CITY ASSOCIATES,
an Illinois general partnership
By: CARLYLE REAL ESTATE LIMITED
PARTNERSHIP-XI,
an Illinois limited partnership,
General Partner
____________________________ By: JMB REALTY CORPORATION,
Print Name:_________________ a Delaware corporation,
General Partner
____________________________
Print Name:_________________ By:____________________________
Name:__________________________
WITNESSES AS TO JMB REALTY Title:_________________________
CORPORATION
By: CARLYLE REAL ESTATE LIMITED
PARTNERSHIP-XII,
an Illinois limited partnership,
General Partner
____________________________ By: JMB REALTY CORPORATION,
Print Name:_________________ a Delaware corporation,
General Partner
___________________________
Print Name:________________ By:____________________________
Name:__________________________
WITNESSES AS TO JMB REALTY Title:_________________________
CORPORATION
STATE OF ILLINOIS)
) SS.
COUNTY OF XXXX )
Before me, a notary public in and for said county and state,
personally appeared the above-named CARLYLE/NATIONAL CITY ASSOCIATES, an
Illinois general partnership, by Carlyle Real Estate Limited Partnership-
XI, an Illinois limited partnership, its General Partner, by JMB Realty
Corporation, a Delaware corporation, its Corporate General Partner, by
____________________________, its ________________________, and by Carlyle
Real Estate Limited Partnership-XII, an Illinois limited partnership, its
General Partner, by JMB Realty Corporation, a Delaware corporation, its
Corporate General Partner, by ____________________, its
___________________________, who acknowledged that _______ did sign the
foregoing instrument as such officer, and that the same is ____ free act
and deed individually and as such officer and the free act and deed of said
corporations, limited partnerships, and of said general partnership.
IN TESTIMONY WHEREOF, I have hereunto subscribed my name and affixed
my official seal at Chicago, Illinois this ______ day of December, 1997.
____________________________________
Notary Public
THIS INSTRUMENT PREPARED BY AND WHEN RECORDED RETURN TO:
Xxxxxxx X. Xxxxxxx, Esq.
Xxxxxxx, Xxxxxxx & Xxxxx
1999 Avenue of the Stars, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
