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REAL ESTATE SALE AGREEMENT
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THIS REAL ESTATE SALE AGREEMENT (this "Agreement") is made as of the
____ day of September, 1999, by and between FIRST CAPITAL INCOME AND GROWTH
FUND-SERIES XII (authorized to do business in Florida as First Capital Income
and Growth Fund, Ltd. - Series XII), an Illinois limited partnership ("Seller"),
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with an office at Two Xxxxx Xxxxxxxxx Xxxxx, Xxxxx 000, Xxxxxxx, Xxxxxxxx 00000
and INVESTCORP PROPERTIES LIMITED, a Delaware corporation ("Purchaser"), with an
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office at 0000 Xxxxx Xxxxxxx Xxxxxxx, Xxxx Xxxxxxxxxx, XX 00000.
RECITALS
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A. Seller is the owner of a certain parcel of real estate (the "Real
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Property") in the City of Deerfield Beach, County of Broward, State of Florida,
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commonly known as Deerfield Mall, which parcel is more particularly described on
EXHIBIT A.
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B. Seller desires to sell to Purchaser, and Purchaser desires to
purchase from Seller, the "Property" (as such term is hereinafter defined), each
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in accordance with and subject to the terms and conditions set forth in this
Agreement.
THEREFORE, in consideration of the above Recitals, the mutual
covenants and agreements herein set forth and the benefits to be derived
therefrom, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Purchaser and Seller agree as
follows:
1. PURCHASE AND SALE
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Subject to and in accordance with the terms and conditions set
forth in this Agreement, Purchaser shall purchase from Seller and Seller shall
sell to Purchaser the Real Property, together with: (i) buildings and
improvements located thereon (collectively, the "Improvements") and any and all
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of Seller's rights, easements, licenses and privileges presently thereon or
appertaining thereto; (ii) Seller's right, title and interest in and to the
leases of the Property (as amended, the "Leases") affecting the Property or any
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part thereof; (iii) the interest of Seller in all security deposits held by
Seller that have been paid by tenants under the Leases and not applied by Seller
in accordance with the terms of the Leases and/or applicable law, if any (the
"Security Deposits"); (iv) all of the furniture, furnishings, fixtures,
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equipment, maintenance vehicles, tools and other tangible personally owned by
Seller, located on the Property and used in connection therewith, including the
plans and specifications for the Property to the extent in Seller's possession
and those items that are listed on EXHIBIT B attached hereto but specifically
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excluding all software installed in or used in connection with the computers,
monitors, printers, modems and other computer equipment located in the regional
on-site or management office of the Property and all data stored in such
computers, on diskettes or other storage media (the "Personal Property"); (v) to
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the extent Purchaser elects to assume such contracts pursuant to Section 8.D
hereof, all right, title and interest of Seller under any and all of the
maintenance, service, advertising and other like contracts and agreements
with respect to the ownership and operation of the Property that are listed on
EXHIBIT C attached hereto (the "Service Contracts"); (vi) if and to the extent
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transferable, all of Seller's right, title and interest in and to all licenses
and permits issued by governmental authorities relating to the use, maintenance,
occupancy or operation of the Property; and (vii) if and to the extent
transferable, all of Seller's right, title and interest in and to the name
"Deerfield Mall"; all to the extent applicable to the period from and after the
"Closing" (as such term is hereinafter defined) (items (i) through (vii) above,
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together with the Real Property, are collectively referred to in this Agreement
as the "Property"). All of the foregoing expressly excludes all property owned
by tenants or other users or occupants of the Property, and excludes any refund
of taxes applicable to the period prior to the Closing Date.
2. PURCHASE PRICE
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The purchase price to be paid by Purchaser to Seller for the Property
is Thirty Five Million Four Hundred Thousand Dollars ($35,400,000.00) (the
"Purchase Price"). The Purchase Price shall be paid as follows:
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X. Xxxxxxx Money.
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(i) Within one (1) business day of execution of this Agreement
by Purchaser and Seller, Purchaser shall deliver to Chicago
Title and Trust Company, Chicago, Illinois ("Escrowee")
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xxxxxxx money in the sum of Three Hundred Fifty Thousand
Dollars ($350,000.00) (such xxxxxxx money deposit, together
with any interest earned thereon net of investment costs,
is referred to in this Agreement as the "Xxxxxxx Money" )
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and Purchaser, Seller and Escrowee shall execute a joint
order escrow agreement in the form of EXHIBIT D attached
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hereto. The Xxxxxxx Money shall be invested as Seller and
Purchaser so direct. Any and all interest earned on the
Xxxxxxx Money shall be reported to Purchaser's federal tax
identification number and shall be treated as part of the
Xxxxxxx Money for all purposes hereunder.
(ii) If Purchaser does not terminate this Agreement pursuant to
section 8.A below, Purchaser shall within two (2) business
days of the expiration of the Due Diligence Period
(hereafter defined) deposit an additional Three Hundred
Fifty Thousand Dollars ($350,000.00) with Escrowee
("Additional Xxxxxxx Money"), which amount shall be deemed
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additional Xxxxxxx Money hereunder.
(iii) If the transaction closes in accordance with the terms of
this Agreement, at Closing, the Xxxxxxx Money shall be
delivered by Escrowee to Seller as part payment of the
Purchase Price. If the transaction fails to close solely
due to a default on the part of Purchaser, the Xxxxxxx
Money shall be delivered by Escrowee to Seller as
liquidated and agreed-upon damages in accordance with
Section 7.A below. If the transaction fails to close due to
a default on the part of Seller, the Xxxxxxx Money shall be
delivered by
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Escrowee to Purchaser, subject to the provisions of Section
7.B below.
B. Cash at Closing. At Closing, Purchaser shall pay to Seller, by
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wire transferred current federal funds, an amount equal to the Purchase Price,
minus the sum of the Xxxxxxx Money which Seller receives at Closing from the
Escrowee, and plus or minus, as the case may require, the closing prorations and
adjustments to be made pursuant to Section 4.C. below.
3. EVIDENCE OF TITLE
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A. Title Commitment.
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Seller shall, within 15 days of the date of this Agreement, cause
to be delivered to Purchaser a commitment for a 1992 ALTA Owner's Title
Insurance Policy (the "Title Commitment"), in the amount of the Purchase Price,
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issued by Chicago Title Insurance Company (the "Title Insurer"). At Closing, the
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Title Insurer shall deliver to Purchaser a later-dated title commitment ("Title
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Policy") from the Title Insurer in the amount of the Purchase Price reflecting
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the conveyance of the Property to Purchaser, subject only to those exceptions to
title which are more fully described on attached EXHIBIT E and exceptions to
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title which become Permitted Exceptions pursuant to this Section 3
(collectively, the "Permitted Exceptions"), and such delivery shall be a
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condition precedent to Purchaser's obligation to close the purchase and sale
transaction contemplated herein.
B. Survey.
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Seller shall immediately order, and as soon as reasonably
practicable after the date of this Agreement deliver, to Purchaser, a current
survey of the Real Property (the "Survey") meeting the most recent ALTA/ACSM
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standards including such Table A items as Purchaser shall specify (other than
Item No. 5).
C. Review of Title Commitment and Survey.
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Purchaser shall have until 5:00 p.m. (Chicago, Illinois time) on
the 30th day after date of the Agreement (such period, the "Due Diligence
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Period") to notify Seller of any matters shown on the Title Commitment or the
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Survey to which Purchaser objects ("Defects"). If any additional exceptions to
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title or Survey matters ("New Defects") arise between the date of the Title
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Commitment or the Survey, and the Closing, Purchaser shall have five (5)
business days after its receipt of notice of same within which to notify Seller
of any such New Defect to which Purchaser objects. Any Defect or New Defect not
objected to by Purchaser as aforesaid shall become Permitted Exceptions. If
Purchaser objects to any Defect or New Defect, Seller shall have until Closing
to remove such Defect or New Defect which removal may be accomplished by waiver
or endorsement by the Title Insurer in a manner reasonably acceptable to
Purchaser. If Seller fails to remove or endorse over any such Defect or New
Defect, Purchaser may, as its sole and exclusive remedy, terminate this
Agreement and obtain a return of the Xxxxxxx Money. If Purchaser does not elect
to terminate this Agreement, Purchaser shall consummate the Closing and accept
title to the Property subject to all such Defects and New Defects (in which
event, all such Defects and New Defects shall be "Permitted Exceptions").
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Notwithstanding anything in this Section 3.C to the contrary, Seller shall be
obligated, at
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Closing, to cause the Title Insurer to remove or endorse over any exceptions to
title in connection with Seller's existing outstanding mortgage financing
encumbering the Property, if any and any other liens encumbering the Property
arising through Seller (but excluding any matter arising through a tenant),
provided, that with respect to liens other than mortgage financing liens ,
Seller shall not be required to expend in excess of $50,000 in the aggregate
(but shall not be required to expend any funds to cure any matter arising
through or under a tenant).
4. CLOSING
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A. Closing Date. The "Closing" of the transaction contemplated
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by this Agreement (that is, the payment of the Purchase Price, the transfer of
title to the Property, and the satisfaction of all other terms and conditions of
this Agreement) shall occur at 11:00 a.m. (Chicago time) on November 1, 1999,
through escrow at the Chicago office of Escrowee, or at such other time and
place as Seller and Purchaser shall agree in writing. The "Closing Date" shall
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be the date of Closing. If the date for Closing above provided for falls on a
Saturday, Sunday or legal holiday, then the Closing Date shall be the next
business day.
B. Closing Documents.
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(i) Seller. At Closing, Seller shall deliver to Purchaser
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the following:
(a) a Special Warranty Deed in the form of EXHIBIT P
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(the "Deed"), subject to the exceptions set forth
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in EXHIBIT E , modified to the extent necessary to
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comply with the recording requirements of the
county in which the Property is located;
(b) a xxxx of sale (the "Xxxx of Sale") in the form of
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EXHIBIT F attached hereto, executed by Seller;
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(c) a letter from Seller or its property manager
advising tenants under the Leases of the change in
ownership of the Property, that all Security
Deposits have been transferred to Purchaser at
Closing are held by and are the responsibility of
Purchaser and directing the tenants to pay all
payments of rent with respect to the period from
and after the Closing Date to Purchaser at an
address specified by Purchaser;
(d) two (2) counterparts of an assignment and
assumption of the Leases and Security Deposits in
the form of EXHIBIT G attached hereto (the "Lease
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Assignment"), executed by Seller;
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(e) two (2) counterparts of an assignment and
assumption of Service Contracts with respect to
those Service Contracts which Purchaser has
elected to assume in accordance with Section 8.D
of this Agreement, in the form of EXHIBIT
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H attached hereto (the "Service Contract
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Assignment"), executed by Seller;
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(f) two (2) counterparts of an assignment of
intangibles (the "Assignment of Intangibles") in
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the form of Exhibit O attached hereto;
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(g) an affidavit stating, under penalty of perjury,
Seller's U.S. taxpayer identification number and
that Seller is not a foreign person within the
meaning of Section 1445 of the Internal Revenue
Code;
(h) two (2) counterparts of a closing statement (the
"Closing Statement") to be executed by Seller and
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Purchaser, containing the "Closing Delinquency
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Schedule" (as defined below) and setting forth the
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prorations and adjustments to the Purchase Price
as required by Section 4.C. below, executed by
Seller;
(i) all original executed "Estoppel Certificates" (as
hereinafter defined) received by Seller as of the
Closing Date and not previously delivered to
Purchaser;
(j) any "Seller Estoppel Certificates" (as hereinafter
defined) to be delivered by Seller under Section
9.C. below;
(k) all original Leases and Service Contracts assumed
by Purchaser in Seller's possession or the
possession of Equity Properties & Development
Limited Partnership ("Asset Manager") or copies of
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such Leases and Service Contracts for which
Original Leases or Service Contracts are not
available;
(l) all original tenant files for current tenants
under the Leases, whether in the possession of
Seller, its property manager or Asset Manager;
(m) an Owner's affidavit in form reasonably and
customarily required by Title Insurer to issue the
Title Policy; and such additional affidavits and
certificates as may be necessary to enable the
Deed to be recorded;
(n) an updated Rent Roll, in the form of the Rent Roll
attached hereto as EXHIBIT M, and certified to be
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true, correct and complete to the Actual Knowledge
of Seller;
(o) an updated accounts receivable statement,
certified by Seller to be true, correct and
complete to the Actual Knowledge of Seller;
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(p) all original licenses and permits (including
certificates of occupancy), warranties and
guaranties, and plans and specifications with
respect to the Property (to the extent each of the
foregoing is transferable and in the possession of
Seller, its property manager or Asset Manager);
(q) all keys to the Property in the possession of
Seller, its property manager or Asset Manager;
(r) evidence indicating that all property management
and leasing agreements with respect to the
Property have been terminated and that all Service
Contracts which Purchaser has not agreed to assume
in accordance with the terms of Section 8.D have
been terminated at no cost or expense to
Purchaser; and
(s) resolutions of Seller authorizing this transaction
and an incumbency certificate evidencing Seller's
signatories' authority;
provided the items described in clauses (k), (l) and (p) shall be delivered to
Purchaser within five (5) business days of Closing (such obligation to deliver
such items after Closing shall survive Closing).
(ii) Purchaser. Purchaser shall deliver or cause to be
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delivered to Seller at Closing:
(a) the funds required pursuant to Section 2.B. above;
(b) two (2) counterparts of the Lease Assignment,
executed by Purchaser;
(c) two (2) counterparts of the Service Contract
Assignment, executed by Purchaser;
(d) two (2) counterparts of the Closing Statement,
executed by Purchaser;
(e) two (2) counterparts of the Assignment of
Intangibles, executed by Purchaser;
(f) copies of any executed Estoppel Certificates
received by Purchaser as of the Closing Date;
(g) such affidavits and certificates as may be
necessary to enable the Deed to be recorded; and
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(h) resolutions of Purchaser authorizing this
transaction and an incumbency certificate
evidencing Purchaser's signatories' authority.
C. Closing Prorations and Adjustments.
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(i) The following items are to be prorated or adjusted (as
appropriate) as of the Closing Date, it being
understood that for purposes of prorations and
adjustments, Seller shall be deemed the owner of the
Property on the day preceding the Closing Date and
Purchaser shall be deemed the owner of the Property on
the Closing Date; provided, however, that if Escrowee
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receives the Purchase Price in immediately available
funds after 2:00 p.m., Chicago time on the Closing
Date, then, for purposes of prorations and adjustments,
Seller shall be deemed the owner of the Property on the
Closing Date and Purchaser shall be deemed the owner of
the Property on the day after the Closing Date:
(a) (i) real estate and personal property taxes and
assessments (provided that, if the current xxxx is
not available, proration shall be made initially
on the basis of the most recent Notice of Proposed
Property Taxes and Non Ad Valorem Taxes (as to
assessed valuation) and on the basis of the most
recent available tax xxxx (as to the tax rate) )
and, in all events, subject to reproration as
described in Section 4.C. (iv));
(ii) Notwithstanding the foregoing, Seller shall
receive a credit for any real estate tax
reimbursement to be paid by Citibank, General
Cinema, Marshalls, Publix, TJ Maxx/Sports
Authority and Walgreens after closing, to the
extent such reimbursement relates to taxes accrued
or assessed for the period prior to Closing;
(b) the "minimum" or "base" rent payable by tenants
under the Leases ("Base Rent") and Operating
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Expense Reimbursements (as defined in Section
4(c)(ii)) payable by tenants under the Leases;
provided, however, that rent and all other sums
which are due and payable to Seller as of Closing
but uncollected as of the Closing shall not be
adjusted, but Purchaser shall cause the rent and
other sums for the period prior to Closing to be
remitted to Seller if, as and when collected,
subject, however, to the remaining provisions of
this Section 4.C.(i)(b). At Closing, Seller shall
deliver to Purchaser a schedule (the "Closing
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Delinquency Schedule") certified as true, correct
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and complete to the Actual Knowledge of Seller of
all such past due but uncollected rent and other
sums owed by tenants, (collectively, the "Past Due
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Rents"). Purchaser shall
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include the amount of the Past Due Rents in the
first bills thereafter submitted to the tenants in
question after the Closing, and shall continue to
do so for six (6) months thereafter and shall send
copies of such invoices to Seller simultaneously.
Purchaser shall promptly remit to Seller any such
Past Due Rents paid by tenants set forth on the
Closing Delinquency Schedule, but only if the
applicable tenants are otherwise current in the
payment of all obligations due for the period
following Closing. The amount of any Past Due
Rents to be paid by any tenant shall be paid in
accordance with such tenant's Lease as now
existing (Purchaser hereby covenanting and
agreeing not to modify the Leases after Closing to
change the date and/or method for payment of
amounts attributable to the period prior to
Closing. Prepaid rent (i.e., rent that is received
by Seller prior to the entire period to which such
rent relates) shall be credited to Purchaser at
Closing.
(c) Percentage rent shall be prorated as follows: to
the extent not set forth on the Closing
Delinquency Schedule, "percentage" or "overage"
rent, shall be prorated as follows: percentage
rent as and when collected shall be prorated based
upon each party's pro rata share of the annual
sales for the Tenant's fiscal year (for
determination of sales under the Lease) in which
Closing occurs for each party's respective period
of ownership, after taking into account each
party's proportionate share of the breakpoint
and/or any recaptures for calculating percentage
rent under such Lease. Prorations shall be on the
basis of a per diem (number of days) method of
allocation. Upon receipt by Purchaser, Purchaser
shall furnish to Seller copies of all sales
reports from tenants relative to the percentage
rent, including, without limitation, all sales
reports with respect to any tenants whose lease
years have expired as of the Closing but whose
sales reports were not available on Closing and
sales reports of any tenants whose lease years
expire after the Closing, and the amount of any
percentage rent shall be paid in accordance with
such tenant's Lease as now existing, and Purchaser
shall pay to Seller a pro rata portion of such
percentage rent, calculated in the manner provided
above, promptly after the date when such rent is
received from the tenant.
(d) With respect to tenant improvement costs and/or
allowances or leasing commissions relating to "New
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Leases" (as hereinafter defined) approved or
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deemed approved by Purchaser pursuant to this
Agreement, Seller and Purchaser agree that such
costs, rent abatements,
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allowances and commissions shall be prorated over
the term of any such New Lease with Seller being
responsible for a portion of such costs, rent
abatements, allowances and commissions based on
the ratio of Base Rent payments received by Seller
through the Closing Date to the total Base Rent
payable over the term of the particular New Lease
and, in the event that Seller has paid or incurred
such costs, rent abatements, allowances and/or
commissions prior to Closing, Purchaser shall
reimburse Seller at Closing for the amount of any
such costs, allowances and/or commissions paid by
Seller, based on the above-described proration;
Purchaser shall have no liability with respect to
tenant improvements costs and/or allowances or
leasing commissions with respect to Leases entered
into prior to the date hereof except for costs
incurred in connection with unexercised options to
extend, renew or expand, which costs shall be
prorated over the applicable term of the renewal,
extension or expansion in the same manner
described above for New Leases.
(e) the amount of the Security Deposits held by Seller
as of the Clos ing Date, if any, with Purchaser
receiving a credit at Closing against the Purchase
Price in the amount of the Security Deposits held
by Seller as of the Closing Date, if any;
(f) water, sewer, electric, telephone and all other
utility and fuel charges, fees and use charges,
fuel on hand (at cost plus sales tax) and any
deposits with utility companies (to the extent
possible, utility prorations will be handled by
meter readings on the day immediately preceding
the Closing Date);
(g) amounts due and prepayments under the Service
Contracts assumed by Purchaser hereunder; and
(h) other similar items of income and expenses of
operation.
(ii) For purposes hereof, real estate taxes, common area
maintenance, utility charges, water and sewer charges,
insurance, merchant's association fees, and all other
expenses for which charges are made to tenants or
contributions are made by tenants under the Leases are
referred to as "Operating Expenses", and the amount
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reimbursable by tenants under the Leases for Operating
Expenses are referred to as "Operating Expense
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Reimbursements".
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(iii) (a) As soon as practical after Closing, but in no event
later than 180 days after Closing, Seller and Purchaser
shall, with
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respect to any amounts paid, prorated or adjusted at
Closing pursuant to Section 4.C.(i) above based on
estimates or formulae, as applicable, jointly determine
and reapportion such amounts in accordance with Section
4.C.(i) above upon determination of the actual costs or
expenses with respect thereto. In the event that the
amount credited to Purchaser by Seller at Closing
exceeds the amount of the credit that Purchaser should
have received had such actual amounts been available at
Closing, Purchaser shall promptly remit such excess
amount to Seller. In the event that the amount credited
to Seller by Purchaser at Closing exceeds the amount of
the credit that Seller should have received, Seller
shall promptly remit such excess to Purchaser.
(b) In the event that the amount of Operating Expense
Reimbursements retained by Seller at Closing (less any
credits therefor given to Purchaser) is less than the
amount of Operating Expense Reimbursements to which
Seller is entitled after calculation of Seller's share
of actual Operating Expenses for the period prior to
closing, Purchaser shall promptly remit such amounts to
Seller upon collection of such amounts from tenants.
Purchaser shall have no obligation to pay Seller any
amount reimbursable by tenants that has not been paid
by such tenants. In the event that the amount of the
Operating Expense Reimbursements retained by Seller at
Closing (less any credits therefor given to Purchaser)
exceeds the amount of the Operating Expense
Reimbursements to which Seller is entitled after
calculation of Seller's share of the actual amounts of
Operating Expenses for the period prior to Closing,
Seller shall remit such excess amounts (net of amounts
due Seller from any tenant) to Purchaser and Purchaser
shall be thereafter obligated to promptly remit the
applicable portion to the particular tenants entitled
thereto (and Purchaser shall indemnify, defend and hold
Seller, its beneficiaries, their partners, and their
respective directors, officers, employees and agents,
and each of them, harmless from and against any losses,
claims, damages and liabilities [including, without
limitation, reasonable attorneys' fees and expenses
incurred in connection therewith] arising out of or
resulting from Purchaser's failure to remit any amounts
to tenants that Purchaser is obligated to so remit in
accordance with this Section 4.C.(iii)). No
reconciliation or payment shall be made by Purchaser
under this Section 4.C.(iii) without the prior approval
of Seller.
(c) At Closing, Seller shall provide to Purchaser (i)
a detailed ledger showing charges made to Tenants for
Operating Expense Reimbursements for the period from
January 1, 1999 through Closing and (ii) an accounts
receivable statement showing Operating Expense
Reimbursements outstanding from Tenants as of Closing
with respect to Operating Expenses for 1999
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through Closing. At such time as Purchaser undertakes
the reconciliations described in Section 4.C.(iii)(b)
above, Seller will make available to Purchaser such
invoices for Operating Expenses incurred between
January 1, 1999 and Closing as may be reasonably
necessary in order for Purchaser to determine and
complete such reconciliations.
(iv) Omitted.
(v) For purposes of this Section 4.C., the amount of any
expense credited by one party to the other shall be
deemed an expense paid by that party. The terms and
provisions of this Section 4.C. shall survive Closing
and the delivery of the Deed.
D. Transaction Costs.
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Seller shall be responsible for and pay (i) one-half of
the cost of the Survey, (ii) one-half of the cost of the base owner's title
policy to be delivered to Purchaser in accordance with Section 3.A. above and of
the premiums of any title insurance endorsements requested by Purchaser, (iii)
one-half of any escrow and/or closing fees of Escrowee and Title Insurer (the
"Escrow Fees"), (iv) one-half of all transaction taxes, documentary stamps or
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similar fees and (v) one-half of all recording charges. Purchaser shall be
responsible for and pay (i) one-half of the Escrow Fees, (ii) one-half of all
recording charges (iii) one-half of the cost of the base owner's title policy to
be delivered to Purchaser in accordance with Section 3.A. above and of the
premiums of any title insurance endorsements requested by Purchaser, (iv) one-
half of all transaction taxes, documentary stamps or similar fees, and (v) 100%
of (x) any prepayment fee, "make-whole premium" or similar charge in connection
with the payment in full of all amounts due from Seller to Principal Mutual Life
Insurance Company under that certain Renewal Secured Promissory Note dated March
22, 1994 (the "Note"), which is secured by a Mortgage Renewal and Modification
Agreement encumbering the Property and (y) any fee or charge incurred in
connection with any assumption by Purchaser or an affiliate of the loan
evidenced by the Note. Seller and Purchaser shall, however, be responsible for
the fees of their respective attorneys.
E. Possession.
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Upon Closing, Seller shall deliver to Purchaser possession
of the Property, subject only to such matters as are permitted by or pursuant to
this Agreement.
5. CASUALTY LOSS AND CONDEMNATION
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If, prior to Closing, the Property or any part thereof shall be
taken or condemned, or destroyed or damaged by fire or other casualty, Seller
shall promptly so notify Purchaser. In such event, provided that either: (i) the
reasonable cost to restore the Property due to such damage or destruction is
greater than $375,000 (a "Material Casualty") or (ii) the taking or condemnation
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materially, adversely and permanently affects the economic use of the Property
or reduces parking at or limits access to the Property (a "Material
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Condemnation"), then Purchaser shall have the option to terminate this Agreement
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by delivery of its written termination notice to Seller within ten (10) days
after Seller's delivery to Purchaser of its notice of a Material Condemnation or
Material Casualty loss. If (a) the damage or destruction is not a Material
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Casualty, (b) a taking or condemnation is not a Material Condemnation, or (c)
Purchaser does not elect to terminate this Agreement pursuant to the provisions
of the preceding sentence (time being of the essence with respect to any such
election), then Seller and Purchaser shall consummate the transaction
contemplated by this Agreement without abatement of the Purchase Price and
Purchaser shall be entitled to approve the terms of any insurance settlement,
and to receive at Closing the taking, condemnation or insurance proceeds (or an
assignment of the right to such proceeds) (less any amounts applied against
costs incurred by Seller as a result of such occurrence) together with a credit
against the Purchase Price in an amount equal to the amount of any deductibles
payable under applicable casualty insurance and Seller shall, at Closing,
execute and deliver to Purchaser all customary proofs of loss, assignments of
claims and other similar items. If Purchaser elects to terminate this Agreement
pursuant to the provisions of this Section 5 and Purchaser is not in default
under this Agreement, the Xxxxxxx Money shall be returned to Purchaser by the
Escrowee, in which event this Agreement shall, without further action of the
parties, become null and void and neither party shall have any further rights or
obligations under this Agreement; provided, however, that the foregoing shall
-------- -------
not limit Seller's recourse against Purchaser under Sections 6, 8 and 11.J.
6. BROKERAGE
---------
Seller, pursuant to a separate written agreement, is obligated to pay
upon Closing (but not otherwise) a brokerage commission to Xxx Xxxxxx Associates
("Broker") for services rendered in connection with the sale and purchase of the
------
Property. Seller shall indemnify and hold Purchaser harmless from and against
any and all claims of Broker related to Seller's agreement to pay Broker a
commission in connection with the purchase and sale of the Property, including,
without limitation, reasonable attorneys' fees and expenses incurred by
Purchaser in connection with such claim. Seller and Purchaser shall each
indemnify and hold the other harmless from and against any and all claims of all
brokers and finders (other than a claim by Broker claiming by, through or under
the indemnifying party and in any way related to the sale and purchase of the
Property, this Agreement or otherwise, including, without limitation, reasonable
attorneys' fees and expenses incurred by the indemnified party in connection
with such claim.
7. DEFAULT AND REMEDIES
--------------------
A. Notwithstanding anything to the contrary contained in this
Agreement, if (1) Seller fails to perform in accordance with the terms of this
Agreement and the Closing does not occur as a result of such failure, and (2)
Purchaser is not otherwise in default hereunder, then, as Purchaser's sole and
exclusive remedy hereunder and at Purchaser's option, either (x) the Xxxxxxx
Money shall be returned to Purchaser, in which event this Agreement shall be
null and void, and neither party shall have any rights or obligations under this
Agreement except as provided in Section 6, 8 and 11.J. below, or (y) upon notice
to Seller not less than thirty (30) days after the date then scheduled for
Closing hereunder, and provided an action is filed within ninety (90) days
thereafter, Purchaser may seek specific performance of this Agreement, but not
damages or (z) if such default is intentional and renders specific performance
materially unavailable to Purchaser, Purchaser may recover from Seller damages
equal to Seller's actual, third party, out-of-pocket costs incurred in
connection with pursuing acquisition of the Property, including without
limitation any fees paid to Principal Mutual Life Insurance Company, such
damages not to exceed $75,000 in the aggregate.
12
B. If (i) Purchaser fails to perform in accordance with the terms of
this Agreement, and (ii) such failure is not as a result of a default by Seller
in its obligations hereunder, the Xxxxxxx Money may be retained by Seller as
liquidated and agreed upon damages and as Seller's sole and exclusive remedy
with respect thereto at which time this Agreement shall terminate and be of no
further force and effect; provided, however, that the foregoing shall not limit
------------------
Seller's recourse against Purchaser under Sections 6, 8 and 11.J. In the event
that Purchaser fails to timely terminate this Agreement under Section 8.A. but
also fails to deposit the Additional Xxxxxxx Money, then such amount which is
not deposited shall nonetheless be deemed Xxxxxxx Money hereunder and Seller
shall have a claim against Purchaser for the Additional Xxxxxxx Money in
addition to the right to retain the Xxxxxxx Money theretofore deposited.
Purchaser and Seller acknowledge and agree that (1) the Xxxxxxx Money is a
reasonable estimate of and bears a reasonable relationship to the damages that
would be suffered and costs incurred by Seller as a result of having withdrawn
the Property from sale and the failure of Closing to occur due to a default of
Purchaser under this Agreement; (2) the actual damages suffered and costs
incurred by Seller as a results of such withdrawal and failure to close due to a
default of Purchaser under this Agreement would be extremely difficult and
impractical to determine; (3) Purchaser seeks to limit its liability under this
Agreement to the amount of the Xxxxxxx Money in the event this Agreement is
terminated and the transaction contemplated by this Agreement does not close due
to a default of Purchaser under this Agreement; and (4) the Xxxxxxx Money shall
be and constitute valid liquidated damages.
C. After Closing, Seller and Purchaser shall, subject to the terms
and conditions of this Agreement, have such rights and remedies as are available
at law or in equity, except that neither Seller nor Purchaser shall be entitled
to recover from the other punitive consequential or special damages.
8. PURCHASER'S INSPECTION AND REVIEW OF THE PROPERTY
-------------------------------------------------
A. Purchaser shall have until the thirtieth (30/th/) day after the
date of this Agreement (the "Due Diligence Period), within which to satisfy
--------------------
itself as to all matters concerning its acquisition, ownership and operation of
the Property, including, without limitation, matters concerning title, survey,
zoning, subdivision laws, environmental matters, review and approval of leases,
contracts and financial matters affecting the Property, existence of all
required licenses, permits and approvals, approval of the condition of the
improvements on the Property, all soil, landscaping and other physical
conditions of the Property, availability and sufficient quantities of all
utilities, and other matters in its discretion. From the date this Agreement is
executed until the Closing, Seller hereby grants to Purchaser and its agents
full access to the Property and all of Seller's non-proprietory operational and
financial records pertaining to the Property in order to conduct such
inspections, samplings and tests as Purchaser deems necessary. Purchaser's
right of inspection pursuant to this Section 8.A. shall be subject to the rights
of tenants under the Leases and other occupants and users of the Property. No
inspection shall be undertaken without twenty-four (24) hour prior notice to
Seller and no invasive testing shall take place without Seller's prior consent.
Seller shall have the right to be present at any inspections.
Within five (5) business days after the date this Agreement is
executed by both Seller and Purchaser, Seller shall deliver or cause to be
delivered to Purchaser (or at
13
Seller's option make available to Purchaser in the Atlanta, Georgia area for
inspection), at Seller's sole cost and expense, the following:
(1) legible copies of all Leases in effect, including all
amendments or modifications thereto, and all consents or waivers with
respect thereto that modify or supplement the provisions thereof in
any respect, and each Lease, if any, which has been executed but is
not yet in effect;
(2) a schedule of all Security Deposits, to the extent such
information is not included on the Rent Roll;
(3) to the extent in the possession of Seller or its property
manager or Asset Manager, (a) tenant annual sales reports for 1995,
1996, 1997, 1998 and 1999 to date, reflecting sales volume for each
tenant, (b) tenant financial reports and/or other credit information,
and (c) correspondence to and from existing tenants and
representatives;
(4) copies of all commission, brokerage, or similar agreements to
be assumed by Purchaser (if any) pertaining to the Leases;
(5) copies of all Service Contracts;
(6) copies of all engineering and technical reports in the
possession of Seller or its property manager or Asset Manager that
concern the Land or Improvements, including soils testing reports and
reports of environmental or hazardous waste inspections or surveys;
(7) copies of all plans and specifications in the possession of
Seller or its property manager or Asset Manager that describe or
relate to the Improvements, including all architectural floor plans
for the Improvements;
(8) all accounting records in the possession of Seller or its
property manager or Asset Manager prepared on an annual basis with
regard to the Property for calendar years 1996, 1997, and 1998 and for
the calendar months January-August of the current years reflecting
actual current income, including base rent, contributions for real
estate taxes, insurance premiums and common area maintenance and any
other income from tenants or expenses of the Property, including
without limitation (a) annual operating statements for the Property
detailing income and expenses, including capital expenses, and
occupancy for calendar years 1996 through 1998 and for the calendar
months January-August of the current year, and (b) annual detail
operating reports for the Property for the period 1995-1998;
(9) copies of all current (if available) real estate and personal
property tax bills and if such current bills are not available, copies
of all such bills for the most recent period for which such bills are
available, all
14
to the extent in the possession of Seller, its property manager or
Asset Manager;
(10) copies of the most recent title insurance policy and survey
in Seller's possession with respect to the Property;
(11) copies of all certificates of occupancy issued by any
governmental authority with respect to the building core and shell and
copies of all other permits and licenses with respect to the Property
other than those relating to tenant space, all to the extent in the
possession of Seller, its property manager or Asset Manager; and
(12) copies of all tenant correspondence, including
correspondence to and from tenants.
B. In the event of Purchaser's notice to Seller and Escrow Agent on
or before 5:00 p.m. Chicago time on the last day of the Due Diligence Period
that it elects to terminate this Agreement pursuant to Section 3.D hereof, the
Xxxxxxx Money (less $100.00 as consideration to Seller for entering into this
Agreement) shall be returned to Purchaser, and neither party shall have any
further obligation to the other, except as set forth herein. If Purchaser fails
to give such notice on or before the end of the Due Diligence Period, Purchaser
shall be deemed to have waived its right to terminate this Agreement under this
Section 8.B. All of the tests, investigations and studies to be conducted by
Purchaser shall be at Purchaser's sole cost and expense and Purchaser shall
restore the Property to the condition existing prior to the performance of such
tests or investigations by or on behalf of Purchaser. Purchaser shall have no
liability to cure or remediate any condition discovered by Purchaser other than
to restore the Property to the condition existing prior to the performance of
such tests or investigation. Purchaser shall defend, indemnify and hold Seller
and any affiliate, partner or parent of Seller, and all shareholders, employees,
officers and directors of Seller or Seller's affiliate, partner or parent
(hereinafter collectively referred to as "Affiliates of Seller") harmless from
--------------------
any and all damage, liability, cost and expense (including without limitation,
reasonable attorney's fees, court costs and costs of appeal) suffered or
incurred by Seller or Affiliates of Seller for injury to persons or property or
otherwise caused by Purchaser's investigations and inspection of the Property.
Purchaser shall undertake its obligation to defend set forth in the preceding
sentence using attorneys selected by Purchaser and reasonably acceptable to
Seller. Notwithstanding anything contained herein to the contrary, the terms of
this Section 8 shall survive the Closing and the delivery of the Deed and
termination of this Agreement.
C. Purchaser acknowledges that it will have, prior to Closing, had
an opportunity to inspect the Property and review all documents and make such
other inquiries and investigations and obtain such reports and analyses it
deemed adequate in connection with its decision to purchase the Property, and,
as a result thereof, Purchaser, agrees that, except as otherwise specifically
set forth in this Agreement, it shall purchase the Property in its "AS IS, WHERE
IS" condition, subject to ordinary wear and tear and as more particularly
provided in Section 11.H.
15
D. Unless Purchaser terminates this Agreement prior to the
expiration of the Due Diligence Period, then not later than 30 days prior to the
Closing, Purchaser shall notify Seller of those Service Contracts it will elect
to assume at Closing and those which it will not assume. If Purchaser fails to
give such notice, then it shall be deemed that Purchaser has elected to assume
all of the Service Contracts. Any Service Contracts which Purchaser does not
elect to assume shall be terminated by Seller as of Closing, at Seller's sole
cost and expense. Purchaser hereby notifies Seller that Purchaser will not
assume any of the existing management or leasing agreements with respect to the
Property and that all such agreements must be terminated by Seller, at Seller's
sole cost and expense, as of Closing.
9. ESTOPPEL CERTIFICATES
---------------------
A. Seller shall, prior to or upon expiration of the Due Diligence
Period, send estoppel certificates (individually, an "Estoppel Certificate" and
--------------------
collectively, the "Estoppel Certificates") in the form of EXHIBIT I attached
--------------------- ---------
hereto (the "Form Tenant Estoppel Certificate") to each tenant occupying space
--------------------------------
at the Property as of such date.
B. It shall be a condition precedent to Purchaser's obligation to
purchase the Property pursuant to this Agreement that Seller provide to
Purchaser, at Closing, Estoppel Certificates executed by (i) tenants occupying
not less than seventy percent (70%) of the net usable square footage of leased
space at the Property which is not leased by Major Tenants and (ii) all tenants
who lease space at the Property in excess of 10,000 square feet (the "Major
-----
Tenants") as of the date of this Agreement (collectively, the "Required
------- --------
Tenants"). The Estoppel Certificates executed by tenants shall be in
-------
substantially the form of the Form Tenant Estoppel Certificate and not
materially inconsistent with the Rent Roll and any other representations made
herein by Seller with respect to the Leases, except that an Estoppel Certificate
executed by a tenant shall be deemed an acceptable Estoppel Certificate for
purposes of this Section 9 as long as it is in the form or contains such
specified information as the Lease requires the tenant to provide and/or
contains the qualification by the tenant of any statement as being of its
knowledge or as being subject to any similar qualification and /or omits or
strikes the second sentence of paragraph 7 of the Form Tenant Estoppel
Certificate (the aforesaid acceptable Estoppel Certificates to be delivered are
collectively referred to as the "Required Estoppel Certificates").
------------------------------
C. In the event that Seller is unable to provide the Required
Estoppel Certificates to Purchaser at the Closing Seller may, at its option,
elect to execute and deliver to Purchaser certificates (individually, a "Seller
------
Estoppel Certificate", and, collectively, the "Seller Estoppel Certificates")
-------------------- ----------------------------
substantially in the same form as the certificate attached hereto as Exhibit J
---------
(the "Form Seller Estoppel Certificate") covering tenants occupying up to 10%
--------------------------------
of the net usable square footage of leased space at the Property which is not
leased to Major Tenants so that Purchaser shall receive, at Closing, Estoppel
Certificates and Seller Estoppel Certificates with respect to the Required
Tenants. In the event that Seller makes such election, Seller shall have the
right to designate the particular tenants (other than Major Tenants) for which
Seller shall deliver Seller Estoppel Certificates. In the event that Seller
elects to deliver such Seller Estoppel Certificates, each statement therein
shall survive for a period terminating on the earlier of (i) one hundred eighty
(180) days from the Closing Date, or (ii) the date on which Purchaser has
received an executed Required Estoppel Certificate signed by the tenant under
the Lease in question. If Purchaser receives an estoppel certificate which
contains some but not all of the matters set forth in the Estoppel Certificate
(a "Partial Certificate") and Seller
-------------------
16
provides a Seller Estoppel Certificate for such tenant, then (i) if the Partial
Certificate is received prior to Closing, the Seller Estoppel Certificate may
omit matters contained in the Partial Certificate and (ii) if the Partial
Certificate is received after Closing, Seller's Estoppel Certificate shall cease
to survive as to the matters contained in the Partial Certificate. If any
Estoppel Certificate contains statements confirming any of Seller's
representations or warranties herein, then Seller shall be relieved of any
liability with respect to any such representation or warranty.
D. In the event that Seller does not provide to Purchaser Required
Estoppel Certificates and Seller Estoppel Certificates for Required Tenants,
Purchaser may either: (x) elect not to purchase the Property, in which event
this Agreement shall terminate and be of no further force and effect, the
Escrowee shall promptly return the Xxxxxxx Money to Purchaser and thereafter
neither Seller nor Purchaser shall have any further rights or obligations under
this Agreement, provided, however, that the foregoing shall not limit Seller's
-------- -------
recourse against Purchaser under Sections 6, 8 or 11.J.; or (y) elect to
purchase the Property notwithstanding Purchaser's decision not to require Seller
to provide the such certificates, in which event Seller shall not be obligated
to provide any additional Estoppel Certificates to Purchaser after Closing.
E. If any Estoppel Certificates or Seller Estoppel Certificates
contain statements or allegations that a default or potential default exists on
the part of Seller under the Lease in question or contain information
inconsistent with any representations of Seller contained in this Agreement and
Purchaser elects to close the purchase and sale transaction contemplated herein
notwithstanding the existence of such statements, allegations or information,
then such Estoppel Certificates and/or Seller Estoppel Certificates shall be
deemed acceptable for purposes of this Section 9, notwithstanding the existence
of such allegations, statements or information and Seller shall have no
liability to Purchaser hereunder with respect to the existence of such
allegations, statements or information.
10. REPRESENTATIONS AND WARRANTIES
------------------------------
A. Seller represents and warrants to Purchaser that, as of the date
hereof (or as of such other date set forth below) and as of Closing:
(i) To the "Actual Knowledge of Seller" (as hereinafter
defined), except as set forth on EXHIBIT K attached
---------
hereto, Seller has received no written notice from any
governmental authority of any violation of any, state or
federal law, rule or regulation concerning the Property
or any part thereof which has not been cured prior to the
date of this Agreement.
(ii) To the Actual Knowledge of Seller and except for the
property management agreement that will be terminated by
Seller effective as of Closing, the list attached hereto
as EXHIBIT C lists all of the maintenance, service,
---------
advertising and other service contracts to which Seller
is a party regarding the Property.
(iii) To the Actual Knowledge of Seller, except as set forth on
EXHIBIT L attached hereto, Seller is neither a party to
---------
any existing litigation with respect to the Property nor
has it received
17
written notice of any pending litigation with respect to
the Property.
(iv) Seller has the requisite power and authority to enter
this Agreement and consummate the transaction
contemplated in this Agreement.
(v) To the Actual Knowledge of Seller, Seller has received no
written notice of any pending or contemplated
condemnation proceedings affecting the Property and there
are currently no condemnation proceedings affecting the
Property or any portion thereof.
(vi) To the Actual Knowledge of Seller, the list (the "Rent
----
Roll") attached hereto as EXHIBIT M and the delinquency
---- ---------
schedule attached as EXHIBIT M-1 accurately set forth the
-----------
information thereon as of the date of this Agreement.
(vii) Except: as set forth on EXHIBIT N attached hereto or
---------
pursuant to New Leases hereafter approved or deemed
approved by Purchaser, no commission or other
compensation is presently payable or in the future will
become payable by Seller or any subsequent owner of the
Property to any broker or finder in connection with any
Leases, any unexercised renewals of such Leases or any
unexercised expansion rights contained in any such
Leases.
(viii) Seller is not a "foreign person" within the meaning of
Section 1445 of the Internal Revenue Code of 1986, as
amended.
(ix) Seller has no employees at the Property.
(x) The Property is not subject to any union or collective
bargaining agreements that will be enforceable against
any owner of the Property after Closing.
(xi) Seller has not committed nor obligated itself in any
manner whatsoever to sell, lease or encumber the Property
or any interest therein to any party, except as provided
in the leases with respect to the lease of space in the
Improvements. No rights of first refusal regarding the
Property exist under the organizational documents of
Seller or under any agreement by which Seller may be
bound or affected; provided, this representation shall
not be deemed to include rights of first refusal (or
similar rights) for additional space within the
Improvements which may be contained in any Lease.
(xii) Except as disclosed on the Rent Roll or in the Leases,
there are no tenant improvement costs and/or allowances
or leasing commissions due and owing with respect to the
Leases.
18
(xii) To Seller's Actual Knowledge, Seller has provided
Purchaser with access to all documents which materially
affect the operation of the Property and which will be
binding on Purchaser from and after Closing.
B. When used in this Agreement, the term "Actual Knowledge of
Seller" shall mean and be limited to the actual (and not imputed, implied or
constructive) current actual knowledge of Xxxxxx Xxxxxx and Xxxxxx Xxxxxx, who
Seller represents are Chief Operating Officer and Vice President of Asset
Manager, and Xxxxxx Xxxx, who Seller represents is the regional property manager
for the Property, and which three individuals Seller represents are the
individuals who are and have been involved in Seller's ownership, and asset
management of the Property and who would be expected to have information and
knowledge with respect to the substance of the representations and warranties.
Notwithstanding anything herein to the contrary, neither Xxxxxx Xxxxxx, Xxxxxx
Xxxxxx or Xxxxxx Xxxx shall have any personal liability or obligation whatsoever
with respect to any of the matters set forth in this Agreement or any of
Seller's representations and/or warranties herein being or becoming untrue,
inaccurate or incomplete in any respect. Any knowledge of or notice given to any
of Seller's other agents, servants or employees shall not be imputed to Seller.
C. The representations and warranties set forth in this Section 10,
shall, subject to the provisions of Section 9.C. above and Section 10.E. below,
survive the Closing and the delivery of the Deed for a period of two hundred
seventy (270) days from the Closing Date. Notice of any claim as to a breach of
any such representations or warranties must be made to Seller prior to the
expiration of such two hundred seventy (270) day period or it shall be deemed a
waiver of the right to asset such claim.
D. It shall be a condition precedent to Purchaser's obligation to
close, that the Rent Roll delivered at Closing not be materially different from
the Rent Roll attached hereto. The Rent Roll delivered at Closing shall be
deemed materially different from the Rent Roll attached hereto only if (a) the
Rent Roll delivered at Closing discloses a reduction of 5% or more in the
aggregate income receivable under the leases that are not Major Leases from the
aggregate income shown in the Rent Roll attached hereto for such leases which
are not Major Leases or (b) there has been any reduction in the rent payable
under any Major Lease or any change (not undertaken in accordance with the terms
of the applicable Lease) in the expiration date of any Major Lease. If Purchaser
does not give Seller written notice on or before Closing of the failure of such
condition, such condition shall be deemed satisfied or waived. If as a result of
the failure of the condition set forth above, Purchaser elects not to close,
Purchaser's sole remedy shall be to receive a return of its Xxxxxxx Money. If
the Rent Roll delivered at Closing is materially different from the Rent Roll
attached hereto, and the Closing occurs, then the Rent Roll attached hereto
shall be deemed to be modified and/or superseded by the Rent Roll delivered at
Closing.
E. In the event that, prior to Closing, Purchaser obtains actual
knowledge that, as of Closing, Seller is in breach of any of the representations
and warranties set forth in Section 10.A. above, or Seller otherwise discloses
to Purchaser in writing facts that are inconsistent with or different from the
information set forth in the representations and warranties made in Section
10.A. or any Seller Estoppel Certificates, and the Closing occurs, then the
19
representations and warranties in Section 10.A. shall be deemed to be modified
and/or superseded by such certificates or other documents (and, in such event,
Seller shall no longer have any liability hereunder with respect to the portion
of representation or warranty modified or superseded herein, as applicable and,
if Purchaser receives such information from a source other than Seller,
Purchaser shall promptly notify Seller thereof). If Purchaser does not give
Seller written notice on or before Closing of the failure of such condition,
such condition shall be deemed satisfied or waived. If as a result of the
failure of the condition set forth above, Purchaser elects not to close,
Purchaser's sole remedy shall be to receive a return of its Xxxxxxx Money.
F. Purchaser represents and warrants to Seller than as of the date
hereof and as of Closing that Purchaser has the requisite power and authority,
to enter this Agreement and consummate the transaction contemplated in this
Agreement.
11. MISCELLANEOUS
-------------
A. All understandings and agreements heretofore had between Seller
and Purchaser with respect to the Property are merged in this Agreement, which
alone fully and completely expresses the agreement of Purchaser and Seller.
Purchaser further acknowledges that, except as expressly provided in this
Agreement, neither Seller nor any agent or representative of Seller has made,
and Seller is not liable for or bound in any manner by, any express or implied
warranties, guaranties, promises, statements, inducements, representations or
information pertaining to the Property.
B. Neither this Agreement nor any interest hereunder shall be
assigned or transferred by Purchaser without the written consent of Seller,
which consent may be withheld in the sole and absolute discretion of Seller;
provided, however, that notwithstanding the foregoing, without the prior written
consent of Seller, Purchaser shall have the right to assign this Agreement to
any affiliate of Purchaser. Upon an assignment of this Agreement to a permitted
assignee: (1) Purchaser shall not be relieved of any subsequently accruing
liability under this Agreement, and (2) as used in this Agreement, the term
"Purchaser" shall be deemed to include such permitted assignee. As used in this
Agreement, the term "Seller" shall be deemed to include any assignee or other
transferee of any Seller. Subject to the foregoing, this Agreement shall inure
to the benefit of and shall be binding upon Seller and Purchaser and their
respective successors and assigns.
C. This Agreement shall not be modified or amended except in a
written document signed by Seller and Purchaser.
D. Time is of the essence of this Agreement.
E. This Agreement shall be governed and interpreted in accordance
with the laws of the State of Florida.
F. All notices, requests, demands or other communications required
or permitted under this Agreement shall be in writing and delivered personally,
by certified mail, return receipt requested, postage prepaid, by overnight
courier (such as Federal Express), or by facsimile transmission, addressed as
follows:
20
1. If to Seller:
c/o Equity Properties and Development Limited Partnership
Xxx Xxxxx Xxxxxxxxx Xxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxxxxx Xxxxxx
With a copy to:
Xxxx, Xxxxxx & Xxxxxxxxx
0 X. XxXxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxxxxx, Esq.
2. If to Purchaser:
c/o Investcorp International, Inc.
000 Xxxx Xxxxxx, 00/xx/ Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: F. Xxxxxxxx Xxxxxx
and
Gumberg Property Investors, Inc.
0000 Xxxxx Xxxxxxx Xxx.
Xxxx. Xxxxxxxxxx, Xxxxxxx 00000-0000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxxxxxxx X. Xxxxxx
21
With a copy to:
Xxxxxx, Xxxx & Xxxxxxxx LLP
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000 or
(000) 000-0000 (direct)
Attention: Xxxxxxx X. Xxxxxx
All notices given in accordance with the terms hereof shall be deemed received
forty-eight (48) hours after posting, or when delivered personally or otherwise
received. Either party hereto may change the address for receiving notices,
requests, demands or other communication by notice sent in accordance with the
terms of this Section 11.F.
G. OMITTED.
H. Acknowledging the prior use of the Property and Purchaser's
opportunity to inspect the Property and except as specifically provided in this
Agreement and the documents executed and delivered by Seller to Purchaser at
Closing, Purchaser agrees to take the Property "as is, where is" with all faults
and conditions thereon. Any information, reports, statements, documents or
records (collectively, the "Disclosures") provided or made to Purchaser or its
constituents by Seller, its agents or employees concerning the condition of the
Property shall not be representations or warranties. Purchaser shall not rely
on such Disclosures, but rather, Purchaser shall rely only on its own inspection
of the Property. PURCHASER ACKNOWLEDGES AND AGREES THAT, EXCEPT AS EXPRESSLY
PROVIDED IN THIS AGREEMENT AND THE DOCUMENTS EXECUTED AND DELIVERED BY SELLER TO
PURCHASER AT CLOSING, SELLER HAS NOT MADE, DOES NOT MAKE AND SPECIFICALLY
DISCLAIMS ANY REPRESENTATIONS, WARRANTIES, PROMISES, COVENANTS, AGREEMENTS OR
GUARANTIES OF ANY KIND OR CHARACTER WHATSOEVER, WHETHER EXPRESS OR IMPLIED, ORAL
OR WRITTEN, PAST, PRESENT OR FUTURE, OF, AS TO, CONCERNING OR WITH RESPECT TO
(A) THE NATURE, QUALITY OR CONDITION OF THE PROPERTY, INCLUDING, WITHOUT
LIMITATION, THE WATER, SOIL AND GEOLOGY, (B) THE INCOME HERETOFORE DERIVED OR TO
BE DERIVED FROM THE PROPERTY, (C) THE SUITABILITY OF THE PROPERTY FOR ANY AND
ALL ACTIVITIES AND USES WHICH PURCHASER MAY CONDUCT THEREON, (D) THE COMPLIANCE
OF OR BY THE PROPERTY OR ITS OPERATION WITH ANY LAWS, RULES, ORDINANCES OR
REGULATIONS OF ANY APPLICABLE GOVERNMENTAL AUTHORITY OR BODY, (E) THE
HABITABILITY, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OF THE
PROPERTY, OR (F) ANY OTHER MATTER WITH RESPECT TO THE PROPERTY, AND SPECIFICALLY
DISCLAIMS ANY REPRESENTATIONS REGARDING TERMITES OR WASTES, AS DEFINED BY THE
U.S. ENVIRONMENTAL PROTECTION AGENCY REGULATIONS AT 40 C.F.R., OR ANY HAZARDOUS
SUBSTANCE, AS DEFINED BY THE COMPREHENSIVE ENVIRONMENTAL RESPONSE COMPENSATION
AND LIABILITY ACT OF 1980 ("CERCLA"), AS AMENDED, AND REGULATIONS PROMULGATED
THEREUNDER.
22
Purchaser, its successors and assigns, hereby waive, release and
agree not to make any claim or bring any cost recovery action or claim for
contribution or other action or claim against Seller or its Affiliates, based on
(a) any federal, state, or local environmental or health and safety law or
regulation, including CERCLA or any state equivalent, or any similar law now
existing or hereafter enacted, (b) any discharge, disposal, release, or escape
of any chemical, or any material whatsoever, on, at, to, or from the Property;
or (c) any environmental conditions whatsoever on, under, or in the vicinity of
the Property.
I. In any lawsuit or other proceeding under or with respect to this
Agreement, Purchaser and Seller each waives any right it may have to trial by
jury.
J. Purchaser acknowledges that all information (other than
information which is publicly available) with respect to the Property furnished
or to be furnished to Purchaser is, has been and will be so furnished on the
condition that Purchaser maintain the confidentiality thereof. Accordingly,
Purchaser shall, and shall cause its employees, consultants, agents, directors,
officers and other personnel and representatives to, hold in strict confidence,
and not disclose to any other party without the prior written consent of Seller
or unless the Closing occurs: (i) any of the information with respect to the
Property delivered to Purchaser by Seller or any of its agents, representatives
or employees, or (ii) the existence of this Agreement or any term or condition
thereof, or (iii) the results of any inspections or studies undertaken in
connection herewith. In addition, neither Purchaser nor Purchaser's employees,
consultants, agents, directors, officers and other personnel and representatives
shall solicit offers to purchase the Property to any other party without the
prior written consent of Seller and unless the Closing occurs. Notwithstanding
the above, Purchaser may disclose such information to individuals or entities
necessary for Purchaser to consummate the transaction contemplated herein (such
as partners, potential partners, lenders, engineers, prospective management
companies, environmental consultants, accountants and tax advisors) and as
required by law. Purchaser shall instruct such parties to whom the existence of
this Agreement or any information with respect to the Property is disclosed of
the confidentiality provisions of this Section 11.J. and that such parties shall
treat such information in compliance with this Section 11.J.. In the event the
Closing does not occur and this Agreement is terminated, Purchaser shall, upon
written request by Seller, promptly return to Seller all copies of all such
information without retaining any copy thereof or extract therefrom.
K. If for any reason Purchaser does not consummate the Closing, then
Purchaser shall, upon Seller's request, assign and transfer to Seller all of its
right, title and interest in and to any and all studies, reports, surveys and
other information, data and/or documents relating to the Property or any part
thereof prepared by or at the request of Purchaser, its employees and agents,
and shall deliver to Seller copies of all of the foregoing, to the extent
Purchaser may do so under its contractual arrangements without cost or increased
liability to Purchaser .
L. Seller hereby covenants and agrees with Purchaser that:
1. From and after the end of the Due Diligence Period through the
Closing, Seller shall deliver for Purchaser's review (a "New Lease
---------
Notice") a copy of any proposed new Lease, or any modification,
------
amendment, restatement or renewal of any existing Lease (individually,
a "New Lease" and collectively, "New Leases"), and Purchaser shall
--------- ----------
have the right to approve or disapprove of
23
any New Lease by responding in writing to Seller's New Lease Notice
within five (5) business days after Purchaser's receipt of the New
Lease Notice. Any New Lease Notice submitted by Seller to Purchaser
shall include credit information with regard to the proposed tenant
thereunder as well as such additional information available to Seller
with respect to such proposed tenant and its business as may be in
Seller's possession. If Purchaser fails to approve or disapprove of
such New Lease within such five (5) business day period, Purchaser
shall be deemed to have conclusively approved of such New Lease,
provided Purchaser shall be deemed to approve any amendment (including
renewals and expansions) to Lease which by the terms of such Lease is
automatic or which Seller is required to enter into pursuant to the
Lease, and any such document shall be deemed an approved New Lease.
For any New Lease executed by Seller prior to the end of the Due
Diligence Period, Seller will give Purchaser written notice of such
New Lease together with a copy thereof at least three (3) days prior
to the expiration of the Due Diligence Period
2. All tenant improvement costs and/or allowances and leasing
commissions relating to New Leases entered into by Seller after the
date of this Agreement which Purchaser approves (or is deemed to
approve) in accordance with Section 11.L.(1) above, shall be prorated
in accordance with Section 4.C.(i)(c) above.
3. Between the date of this Agreement and the Closing Date,
Seller shall not enter into any Service Contracts unless they are
cancelable upon thirty days prior notice without cost or liability to
Purchaser.
4. Between the date of this Agreement and the Closing Date,
Seller shall operate the Property in the normal course of Seller's
business and maintain the Property in the same condition as of the
date of this Agreement, ordinary wear and tear excepted, subject to
Section 5 above. Notwithstanding anything in the preceding sentence to
the contrary, in no event shall Seller be required to make any capital
improvements to the Property or expend in excess of $10,000 for
repairs.
5. Between the date of this Agreement and the Closing Date and
except as required by law or by any of the instruments set forth on
EXHIBIT E attached hereto or as otherwise permitted under this
---------
Agreement, Seller shall not grant an easement, right-of-way or license
on, under or about the Property or for the use of the Property.
6. Between the end of the Due Diligence Period and the Closing
Date, Seller shall neither terminate any Lease nor shall Seller enter
into an agreement with any tenant wherein such tenant is permitted to
vacate the space demised under its Lease.
M. OMITTED
N. Seller and Purchaser hereby designate Escrowee to act as and
perform the duties and obligations of the "reporting person" with respect to the
transaction contemplated
24
by this Agreement for purposes of 26 C.F.R. Section 1.6045-4(e)(5) relating to
the requirements for information reporting on real estate transaction closed on
or after January 1, 1991. In this regard, Seller and Purchaser each agree to
execute at Closing, and to cause the Escrowee to execute at Closing, a
Designation Agreement, designating Escrowee as the reporting person with respect
to the transaction contemplated by this Agreement.
O. This Agreement may be executed in two or more counterparts, each
of which shall be deemed to be an original and all of which taken together shall
constitute one and the same instrument.
P. Seller and Purchaser acknowledge and agree that neither this
Agreement nor a memorandum thereof shall be recorded.
Q. Purchaser acknowledges and agrees that any recovery against
Seller that Purchaser may be entitled to as a result of any and all claims,
demands or causes of action that Purchaser may have against Seller with respect
to this Agreement and the transactions contemplated herein and the documents
delivered at Closing shall be limited to direct and actual damages and only be
recoverable against Seller to the extent of $1,500,000 in the aggregate.
Neither Seller's partners nor affiliates, nor any of their shareholders,
partners, officers, directors, agents or employees shall have any personal
liability by reason of any matter whatsoever under, in connection with this
Agreement or the transactions contemplated herein and Purchaser waives for
itself and anyone who may claim by, through or under Purchaser any and all
rights to recover on account of any such personal liability.
R. OMITTED
S. Except as specifically provided for herein, the representations,
warranties, covenants and agreements of Seller set forth in this Agreement shall
not survive the Closing.
T. OMITTED
U. Except as specifically provided herein, no third parties shall
have the benefit of any of the provisions of this Agreement, nor is this
Agreement made with the intent that any person or entity other than Seller and
Purchaser shall rely hereon.
V. Pursuant to Section 404.05618, Florida Statues (1988), the
following notification regarding radon gas is hereby made, and all parties
executing this Agreement acknowledge receipt of this notification:
Radon Gas: "Radon is a naturally occurring radioactive gas
---------
that, when it has accumulated in a building in sufficient quantities, may
present health risks to persons who are exposed to it over time. Levels of radon
that exceed federal and state guidelines have been found in buildings in
Florida. Additional information regarding radon and radon testing may be
obtained from your county public health unit".
25
IN WITNESS WHEREOF, Seller and Purchaser have executed and delivered this
Agreement as of the date first above written.
SELLER:
FIRST CAPITAL INCOME AND GROWTH FUND-SERIES
XII, an Illinois limited partnership
By: First Capital Financial Corporation, its general
partner
By: ________________________
Name: ________________________
Title: ________________________
PURCHASER:
INVESTCORP PROPERTIES LIMITED
By: ______________________________
Name: ______________________________
Title: ______________________________
26
LIST OF EXHIBITS
----------------
A - Legal Description
B - Personal Property
C - Service Contracts
D - Joint Order Escrow Agreement
E - Permitted Exceptions
F - Xxxx of Sale
G - Assignment and Assumption of Leases
H - Assignment and Assumption of Service Contracts
I - Form Estoppel Certificate
J - Seller Estoppel Certificate
K - Notices of Violations of Laws
L - List of Litigation
M - Rent Roll
M-1 - Delinquency Schedule
N - Outstanding Leasing Commissions
O - Assignment of Intangibles
P - Deed
EXHIBIT A
LEGAL DESCRIPTION
-----------------
EXHIBIT B
PERSONAL PROPERTY
-----------------
Maintenance Office Exercise Room
------------------ -------------
Golf Cart Desk (2)
Trailers (2) Cabinet (2)
16 Ft. Ext. Ladder Folding Table (3)
4 Ft. ladder Glass Wall Divide (6)
Drill Exercise bike (Broken)
Desk (3) Xxxxxx
Chair (2) 28 Exercise Steeper with 51 steps
Scaffold Some Paint (Blue and Purple)
Broom (3) Tanning Bed (Broken)
Tree Trimmer
Garden Rake
Weed Eater (Broken)
Time Clock
Some Paint
Blower (Broken)
Old Office
----------
Sharp SF-8500 Copy Machine
TV
Xxxxxx Vacuum
Desk Organizer / Folder Keeper
File Cabinet
Chairs (8)
Desk (3)
Square Table
Round Table
Folding Table
Phone
Picture
Cork Board
EXHIBIT C
SERVICE CONTRACTS
-----------------
--------------------------------------------------------------------------------
DEERFIELD MALL
SERVICE CONTRACT LIST
--------------------------------------------------------------------------------
Contractor Service Performed
--------------------------------------------------------------------------------
A to Z Backflow Preventor
Browards Sheriff's Office Police Services
Christmas Consultants Xmas Decorations
JDH Property Mgt. Landscaping
Prestige Pest Control
Quality Power Sweeping Janitorial
Quality Power Sweeping Sweeping
Quality Power Sweeping Pressure Washing
Xxxxxxxx Fire Sprinklers Fire Sprinkler Inspection
Florida Waterway Management Aquatic Management
Sal's Towing dba Carsal Towing
--------------------------------------------------------------------------------
EXHIBIT D
JOINT ORDER ESCROW AGREEMENT
----------------------------
XXXXXXXXX ,XXXX
XXXXXXXXX XXXXX, XXXXXXX
Date: ________ ____,1999
TO: ________________________
________________________
________________________
________________________
The amount of Three Hundred Fifty Thousand Dollars ($350,000.00) (together with
any subsequent additional deposit the "Escrow Deposit") is deposited with you in
escrow on behalf of ___________________, the "Purchaser" under that certain Real
Estate Sale Agreement (the "Contract"), dated _________ ____, 1999 with First
Capital Income and Growth Fund-Series XII, an Illinois limited partnership, as
the "Seller", with respect to the purchase and sale of the property commonly
known as Xxxxxxxxx Xxxx, Xxxxxxxxx Xxxxx, Xxxxxxx.
As escrowee, you are hereby directed to hold, deal with and dispose of the
Escrow Deposit in accordance with the following terms and conditions:
1. You are to hold the Escrow Deposit until: (a) you are in receipt of a joint
order by Seller and Purchaser as to the disposition of the Escrow Deposit;
or (b) you are in receipt of a written demand (the "Demand") from either
Seller or Purchaser for the payment of the Escrow Deposit or any portion
thereof; or (c) prior to October __, 1999, you are in receipt of a sole
order by Purchaser to return the Escrow Deposit to Purchaser. Upon receipt
of any Demand, you are directed to so notify the non-demanding party,
enclosing a copy of the Demand. If within five (5) business days after the
non-demanding party has received or is deemed to have received your notice
of your receipt of the Demand, you have not received from the non-demanding
party its notice of objection to the Demand, then you are to disburse the
Escrow Deposit as requested by the Demand. If within said five business-day
period you receive from the non-demanding party its notice of objection to
the Demand, then you are to continue to hold the Escrow Deposit until you
are in receipt of a joint order as aforesaid, but after sixty (60) days you
may deposit the Escrow Deposit with a court of competent jurisdiction.
Notwithstanding the foregoing, in no event may you disburse the Escrow
Deposit to Seller prior to _____________, without the express written
consent of Purchaser.
2. Notwithstanding the foregoing, as escrowee, you are hereby expressly
authorized to regard and to comply with and obey any and all orders,
judgments or decrees entered or issued by any court, and in case you obey
or comply with any such order, judgment or decree of any court, you shall
not be liable to either of the parties hereto or any other
person or entity by reason of such compliance, notwithstanding any such
order, judgment or decree be entered without jurisdiction or be
subsequently reversed, modified, annulled, set aside or vacated. In case of
any suit or proceeding regarding this Escrow Agreement, to which you are or
may at any time be a party, the undersigned Seller and Purchaser agree that
the non-prevailing party shall pay to you upon demand all reasonable costs
and expenses incurred by you in connection herewith but solely for costs
incurred in your role as Escrowee.
3. Provided that the closing occurs, you shall not charge an escrow fee in
connection with your role as Escrowee hereunder. In the event that the
closing does not occur, you shall charge an escrow fee of no greater than
$150.00, with one-half of such fee to be paid by Seller and one-half of
such fee to be paid by Purchaser.
4. As escrowee, you shall invest the Escrow Deposit in an interest-bearing
account with a federally-insured bank or savings and loan as association or
as otherwise directed by both Purchaser and Seller in writing. Any interest
earned on the Escrow Deposit, after you deduct your customary investment
charges (not to exceed $220.00), shall become and be deemed to be a part of
the Escrow Deposit. The FEIN of Purchaser is ___________________.
5. All notices or other communications hereunder shall be in writing and shall
be personally delivered or sent by overnight courier (such as Federal
Express), by facsimile transmission or by first class United States Mail,
postage prepaid, registered or certified (return receipt requested) to the
respective addresses for the Seller, Purchaser and escrowee as herein
provided, together with copies to the attorneys for Seller and Purchaser at
the addresses for such attorneys set forth in Paragraph 6 below. All
notices given in accordance with the terms hereof shall be deemed received
forty-eight (48) hours after posting, or when delivered personally or
otherwise received. Either party hereto may change the address for
receiving notices, requests, demands or other communication by notice sent
in accordance with the terms of this Section 11.F.
6. Either Purchaser or Seller may act hereunder either directly or through its
attorney. The attorney for the Purchaser is:
Xxxxxx, Xxxx & Xxxxxxxx LLP
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000 or
(000) 000-0000 (direct)
Attention: Xxxxxxx X. Xxxxxx
2
The attorney for the Seller is:
Xxxx, Xxxxxx & Xxxxxxxxx
0 X. XxXxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxxxxx, Esq.
7. This Escrow Agreement is being entered into to implement the Contract and
shall not (nor be deemed to) amend, modify or supersede the Contract or act
as a waiver of any rights, obligations or remedies set forth therein;
provided, however, that Escrowee may rely solely upon this Escrow
Agreement.
[signature page to Joint Order Escrow Agreement]
PURCHASER:
ADDRESS OF PURCHASER:
3
[signature page to Joint Order Escrow Agreement]
SELLER:
------------------------------------------
ADDRESS OF SELLER:
Xxx Xxxxx Xxxxxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx Xxxxxx
Facsimile: (312) 559-_____
Telephone: (000) 000-0000
ACCEPTED THIS ______ DAY OF ____________, 1997
ACCEPTED:
_________________________, as Escrowee
By:______________________________
Title: _____________________
ADDRESS OF ESCROWEE:
__________________________
__________________________
__________________________
__________________________
4
EXHIBIT E
DEED EXCEPTIONS
---------------
1. Acts of Purchaser, and those by, through and under Purchaser.
2. General and special taxes, and assessments, not yet due to payable as of
Closing (but subject to apportionment or payment as described in Section
4.C. of the Agreement).
3. Rights of tenants under the Leases, and those claiming by, through and
under said tenants.
4. Zoning, building and other governmental and quasi-governmental laws, codes
and regulations.
5. Permitted Exceptions under Section 3.C hereof.
6. Riparian rights, claims of accretion and similar matters.
0
XXXXXXX X
XXXXXXXXX XXXX
XXXXXXXXX XXXXX, XXXXXXX
XXXX OF SALE
------------
THIS XXXX OF SALE (this "Xxxx of Sale") is executed as of the ____ day of
_________, 1999, by FIRST CAPITAL INCOME AND GROWTH FUND-SERIES XII, an Illinois
limited partnership ("Seller"), having an office at Xxx Xxxxx Xxxxxxxxx Xxxxx,
Xxxxxxx, Xxxxxxxx 00000, in favor of __________________________________________
("Purchaser"), having an office at ____________________________________________.
1. Property. The "Property" shall mean the real property located in the
--------
City of Deerfield Beach, County of Broward, State of Florida, legally described
in Exhibit A attached to this Assignment, together with the building, structures
---------
and other improvements owned by Assignor and located thereon and commonly known
as "Deerfield Mall".
2. Contract. The "Contract" shall mean that certain Real Estate Sale
--------
Agreement dated __________________, 199___ by and between Assignor, as Seller,
and Assignee, as Purchaser, for the purchase and sale of the Property.
3. Personal Property. The "Personal Property" shall mean all of the
-----------------
furniture, furnishings, fixtures, equipment, maintenance vehicles, tools and
other tangible personally owned by Seller, located on the Property and used in
connection therewith, including the plans and specifications for the Property to
the extent in Seller's possession; and those items that are listed on EXHIBIT B
---------
attached hereto, but specifically excluding all software installed in or used in
connection with the computers, monitors, printers, modems and other computer
equipment located in the regional on-site or management office of the Property
and all data stored in such computers, on diskettes or other storage media,
including the items of personal property set forth in attached EXHIBIT C.
---------
4. Sale. For good and valuable consideration received by Seller, the
----
receipt and sufficiency of which are hereby acknowledged, Seller hereby sells,
assigns and transfers all of its right, title and interest in and to the
Personal Property to Purchaser. Seller makes no warranties or representations
as to the Personal Property. The Personal Property is transferred "AS IS, WHERE
IS" and ALL WARRANTIES OF QUALITY, FITNESS AND MERCHANTABILITY ARE HEREBY
EXCLUDED.
5. Limited Liability. This Assignment is subject to Section 11.Q. of the
-----------------
Contract.
IN WITNESS WHEREOF, Seller has executed this Xxxx of Sale the day and year
first above written.
SELLER:
FIRST CAPITAL INCOME GROWTH FUND-SERIES
XII, an Illinois limited partnership
By: First Capital Financial Corporation, its general
partner
By: _______________________
EXHIBIT G
ASSIGNMENT AND ASSUMPTION
OF LEASES
---------
THIS ASSIGNMENT AND ASSUMPTION OF LEASES AND SECURITY DEPOSITS (this
"Assignment") is entered into as of the ______________ day of __________, 1999,
by and between First Capital Income and Growth Fund-Series XII, an Illinois
limited partnership ("Assignor"), with an office at Xxx Xxxxx Xxxxxxxxx Xxxxx,
Xxxxx 000, Xxxxxxx, Xxxxxxxx 00000 and _____________________, a _______________
("Assignee"), with an office at ____________________________.
1. Property. The "Property" shall mean the real property located in the
--------
City of Deerfield Beach, County of Broward, State of Florida, legally described
in Exhibit A attached to this Assignment, together with the building, structures
---------
and other improvements owned by Assignor and located thereon and commonly known
as "Deerfield Mall".
2. Leases. The "Leases" shall mean all leases affecting the Property, or
------
any part thereof, including the leases listed on the rent roll (the "Rent Roll")
attached to this Assignment as Exhibit B. "Lease" shall mean any one of the
---------
Leases.
3. Security Deposits. "Security Deposits" shall mean all unapplied
-----------------
security deposits: (i) held by Assignor under the Leases in the form of a letter
of credit and/or in a segregated bank account, and (ii) held by Assignor under
the Leases for which Assignee has received a credit on the "Closing Statement"
(as defined in the Contract). The Security Deposits are set forth on Exhibit C
---------
attached hereto.
4. Contract. "Contract" shall mean that certain Real Estate Sale
--------
Agreement dated _______ ___, 1999 by and between Assignor, as Seller, and
Assignee, as Purchaser, for the purchase and sale of the Property.
5. Assignment. For good and valuable consideration received by Assignor,
----------
the receipt and sufficiency of which are hereby acknowledged, Assignor hereby
assigns to Assignee the entire right, title and interest of Assignor in and to
the Leases, and the Security Deposits arising from and after the date hereof.
6. Assumption. Assignee hereby assumes all of the covenants, agreements
----------
and obligations of Assignor under or in connection with the Leases arising from
and after the date hereof, and Assignee further assumes all liability of
Assignor for the proper refund or return of the Security Deposits.
7. Enforcement. If Assignor or Assignee resorts to a court of law or
-----------
equity in order to enforce the provisions of this Assignment as against the
other, the non-prevailing party shall pay the reasonable attorney's fees and
expenses of the prevailing party.
8. Third Parties. Except as set forth in Section 1 of this Assignment,
-------------
no third party shall have the benefit of any of the provisions of this
Assignment, nor is this Assignment made with the intent that any person or
entity other than Assignor or Assignee rely hereon.
9. Limited Liability. This Assignment is subject to Section 11.Q. of the
-----------------
Contract.
10. Successors and Assigns. This Assignment shall be binding upon and
----------------------
inure to the benefit of the parties hereto and their respective successors and
assigns.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY BLANK]
IN WITNESS WHEREOF, Assignor and Assignee have executed this Assignment the
day and year first above written.
ASSIGNOR:
FIRST CAPITAL INCOME AND GROWTH FUND
-SERIES XII, an Illinois limited partnership
By: First Capital Financial Corporation, its
general partner
By: ____________________
ASSIGNEE:
EXHIBITS
--------
A - Legal Description of the Property
B - Rent Roll
C - Security Deposits
EXHIBIT H
---------
ASSIGNMENT AND ASSUMPTION OF SERVICE CONTRACTS
----------------------------------------------
THIS ASSIGNMENT AND ASSUMPTION OF SERVICE CONTRACTS (this "Assignment") is
entered into as of the ______________ day of __________, 1999, by and between
First Capital Income and Growth Fund-Series XII, an Illinois limited partnership
("Assignor"), with an office at Xxx Xxxxx Xxxxxxxxx Xxxxx, Xxxxx 000, Xxxxxxx,
Xxxxxxxx 00000, and _______________________, a ________________ ("Assignee"),
with an office at ______________________________________________
1. Property. The "Property" shall mean the real property located in the
--------
City of Deerfield Beach, County of Broward, State of Florida, legally described
in Exhibit A attached to this Assignment, together with the building, structures
---------
and other improvements owned by Assignor and located thereon and commonly known
as "Deerfield Mall".
2. Service Contracts. "Service Contracts" shall mean the service
-----------------
contracts entered into with respect to the ownership and operation of the
Property that Assignee has assumed hereunder. The Service Contracts are listed
on Exhibit B attached to this Assignment.
---------
3. Assignment. For good and valuable consideration received by Assignor,
----------
the receipt and sufficiency of which are hereby acknowledged, Assignor hereby
assigns to Assignee the entire right, title and interest of Assignor in and to
the Service Contracts arising from and after the date hereof.
4. Assumption. Assignee hereby assumes all of the covenants, agreements
----------
and obligations of Assignor under or in connection with the Service Contracts
arising from and after the date hereof.
5. Enforcement. If Assignor or Assignee resorts to a court of law or
-----------
equity in order to enforce the provisions of this Assignment as against the
other, the non-prevailing party shall pay the reasonable attorney's fees and
expenses of the prevailing party.
6. Third Parties. Except as set forth in Section 9 of this Assignment,
-------------
no third party shall have the benefit of any of the provisions of this
Assignment, nor is this Assignment made with the intent that any person or
entity other than Assignor or Assignee shall rely hereon.
7. No Representations or Warranties. This Assignment shall not be
--------------------------------
construed as a representation or warranty by Assignor as to the transferability
of the Service Contracts, and Assignor shall have no liability to Assignee in
the event that any or all of the Service Contracts (i) are not transferable to
Assignee or (ii) are canceled or terminated by reason of this assignment or any
acts of Assignee.
8. Limited Liability. This Assignment is subject to Section 11.Q. of
-----------------
that certain Real Estate Sale Agreement between Assignor and Assignee dated
______________.
9. Successors and Assigns. This Assignment shall be binding upon and
----------------------
inure to the benefit of the parties hereto and their respective successors and
assigns.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY BLANK]
IN WITNESS WHEREOF, Assignor and Assignee have executed this Assignment the
day and year first above written.
ASSIGNOR:
FIRST CAPITAL Income and Growth Fund-Series
XII, an Illinois limited partnership
By: First Capital Financial Corporation, its
general partner
By: ____________________
ASSIGNEE:
EXHIBITS
--------
A - Legal Description of Property
B - Service Contracts
EXHIBIT I
FORM TENANT ESTOPPEL CERTIFICATE
--------------------------------
_______________________
_______________________
_______________________
_______________________
_______________________
First Capital Income and Growth Fund-Series XII
Two Xxxxx Xxxxxxxxx Xxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxxx 00000
Ladies and Gentlemen:
At the request of First Capital Income and Growth Fund-Series XII,
("Landlord"), made in connection with the proposed sale of the property known as
Xxxxxxxxx Xxxx, Xxxxxxxxx Xxxxx, Xxxxxxx (the "Property") the undersigned hereby
certifies to Landlord, Purchaser and Principal Mutual Life Insurance Company and
their successor and assigns as follows so that each of such parties may rely
thereon:
1. The undersigned is the tenant under a lease with Landlord, dated
__________, 19___, [as amended by _________________, dated __________, 19___
(collectively, the "Lease")][(the "Lease")] for [describe space] comprising __
square feet (the "Premises").
2. The Lease sets forth the entire agreement between Landlord and the
undersigned with respect to the Premises, is in full force and effect and has
not been amended, modified or extended. A true, correct and complete copy of the
Lease is attached.
3. The monthly [base][minimum] rent of $________ due under the Lease is
continuing and has been paid through _______, 199__ and all additional rent
(consisting of $_________ per month for estimated operating expenses and
estimated real estate taxes) due under the Lease is continuing and has been paid
through ______________, 199__.
4. The Landlord is not in default under the Lease.
5. The expiration date of the Lease is ____________________, 19___.
6. The amount of the security deposit currently held by Landlord under
the Lease is $ _______________ in cash.
7. There is no prepaid rent, except $ _____________ [explain to which
period and type of rent such prepayment relates]. The undersigned will not
prepay any of the rents under the Lease more than one month in advance.
8. The undersigned has not assigned any of its interest in the Lease or
subleased all or any portion of the Premises, except as follows:
_____________________________.
9. The undersigned has no defenses, counterclaims, set-offs or
concessions against rent or charges due or to become due under the Lease.
10. The undersigned has unconditionally accepted the Premises and [has
commenced payment of full rent] [or] [is entitled to _____ month's abatement of
base rent, as of the date hereof] under the Lease.
11. [All work required to be performed by Landlord with respect to the
Lease and in connection with the Premises or otherwise has been completed by
Landlord to the satisfaction of Tenant except for _________________.] [All
amounts to be paid by Landlord under the Lease with respect to work in the
Premises has been paid by Landlord except for ________________.]
12. The "base year" for operating expense reimbursements and real estate
taxes under the Lease is 19___.
13. The undersigned has no right or option pursuant to the Lease or
otherwise to purchase all or any part of the Premises or the Property.
14. The undersigned is not in default under the Lease.
15. Except as may be expressly set forth in the Lease, Tenant has no right
to (a) expand the size of the Premises, (b) extend the term of the Lease beyond
its stated expiration date or (c) cancel the Lease prior to its stated
expiration date.
Very truly yours,
______________________, Tenant
By:_____________________________________
___________________, Title
Date: ____________________, 1999
2
EXHIBIT J
FORM SELLER ESTOPPEL CERTIFICATE
--------------------------------
Ladies and Gentlemen:
Reference is herein made to that certain Real Estate Sale Agreement (the
"Agreement") dated ______________, 199___ by and between FIRST INCOME AND GROWTH
FUND-SERIES XII, an Illinois limited partnership ("Seller"), and
__________________________ a _______________________ ("Purchaser"), for the
purchase and sale of the property known as Xxxxxxxxx Xxxx, Xxxxxxxxx Xxxxx,
Xxxxxxx (the "Property"). All capitalized terms used herein but not defined
herein shall have the meanings ascribed to them in the Agreement. Pursuant to
Section 9 of the Agreement, Seller hereby certifies to Purchaser as follows:
1. The undersigned is the landlord under a lease with ______________, as
tenant (the "Tenant"), dated ____________, 19___, [as amended by ___________,
dated __________, 19___ (collectively, the "Lease") [(the "Lease")] for
[describe space] comprising __ square feet.
2. The Lease sets forth the entire agreement between the Seller and the
Tenant with respect to the Premises, is in full force and effect and has not
been amended, modified or extended. A true, correct and complete copy of the
Lease is attached hereto.
3. The monthly [base][minimum] rent of $_________ due under the Lease is
continuing and has been paid through ______________, 199__ and all additional
rent (consisting of $_______ per month for estimated operating expenses and
estimated real estate taxes) due under the Lease is continuing and has been paid
through ____________, 199___.
4. Seller has not received written notice from the Tenant of any material
default by Seller under the Lease which has not been cured as of the date of
this certificate ("Certificate").
5. The expiration date of the Lease is __________, 19___.
6. The amount of the security deposit currently held by Seller under the
Lease is $____________ in cash.
7. There is no prepaid rent, except $___________ [explain to which period
and type of rent such prepayment relates].
8. To Seller's Actual Knowledge (as defined in the Agreement), the Tenant
has not assigned any of its interest in the Lease or subleased all or any
portion of the Premises, except as follows: ______________________.
9. To Seller's Actual Knowledge, Tenant has no defenses, counterclaims,
set-offs or concessions against rent or charges due under the Lease.
10. To Seller's Actual Knowledge, Tenant has unconditionally accepted the
Premises and [has commenced payment of full rent] [or] [is entitled to ________
month's abatement of base rent as of the date hereof] under the Lease and, the
Tenant is the owner and holder of the entire tenant's interest in the Lease.
11. [All work required to be performed by Seller with respect to the
Premises under the Lease has been completed by Seller, and to Seller's Actual
Knowledge such work has been completed to the satisfaction of Tenant [or] [All
amounts to be paid by Seller under the Lease with respect to work in the
Premises has been paid by Seller except for _______________.]
12. The "base year" for operating expense reimbursements and real estate
tax reimbursements under the Lease is 19___.
13. The Tenant has no right of option pursuant to the Lease or otherwise
to purchase all or any portion of the Premises or the Property.
14. Except as may be expressly set forth in the Lease, Tenant has no right
to (a) expand the size of the Premises, (b) extend the term of the Lease beyond
its stated expiration date or (c) cancel the Lease prior to its stated
expiration date.
This Certificate is executed by Seller solely for the benefit of Purchaser
and no third party shall have the benefit of any of the provisions of this
Certificate, nor is this Certificate made with the intent that any person other
than Purchaser shall rely thereon.
This Certificate is delivered to Purchaser in connection with, and subject
to the terms, provisions and limitations of Section 9 and Section 11.Q. of the
Agreement.
IN WITNESS WHEREOF, Seller has executed this Certificate as of the ____ day
of ___________, 1999.
2
EXHIBIT K
NOTICES OF VIOLATIONS OF LAWS
-----------------------------
None
EXHIBIT L
LIST OF LITIGATION
------------------
EXHIBIT M
RENT ROLL
---------
EXHIBIT M-1
DELINQUENCY SCHEDULE
--------------------
To be agreed upon before the end of
the Due Diligence Period.
EXHIBIT N
LEASING COMMISIONS
------------------
None
EXHIBIT O
---------
ASSIGNMENT AND ASSUMPTION OF INTANGIBLES
----------------------------------------
THIS ASSIGNMENT AND ASSUMPTION OF INTANGIBLES (this "Assignment") is
entered into as of the ______________ day of __________, 1999, by and between
First Capital Income and Growth Fund-Series XII, an Illinois limited partnership
("Assignor"), with an office at Xxx Xxxxx Xxxxxxxxx Xxxxx, Xxxxx 000, Xxxxxxx,
Xxxxxxxx 00000, and _______________________, a ________________ ("Assignee"),
with an office at ______________________________________________
1. Property. The "Property" shall mean the real property located in the
--------
City of Deerfield Beach, County of Broward, State of Florida, legally described
in Exhibit A attached to this Assignment, together with the building, structures
---------
and other improvements owned by Assignor and located thereon and commonly known
as "Deerfield Mall". Capitalized terms not defined herein shall have the
meanings ascribed to them in that certain Real Estate Sale Agreement dated
________________ between ___________________ and _____________________.
2. Intangibles. "Intangibles" shall mean, to the extent transferable,
-----------
all of Assignor's right, title and interest in and to all licenses and permits
issued by governmental authorities and held by Assignor relating to the use,
maintenance, occupancy or operation of the Property; and to the extent
transferable, all of Assignor's right, title and interest in and to the name
"Deerfield Mall".
3. Assignment. For good and valuable consideration received by Assignor,
----------
the receipt and sufficiency of which are hereby acknowledged, Assignor hereby
assigns to Assignee the entire right, title and interest of Assignor in and to
the Intangibles arising from and after the date hereof.
4. Assumption. Assignee hereby assumes all of the covenants, agreements
----------
and obligations of Assignor under or in connection with the Intangibles arising
from and after the date hereof.
5. Enforcement. If Assignor or Assignee resorts to a court of law or
-----------
equity in order to enforce the provisions of this Assignment as against the
other, the non-prevailing party shall pay the reasonable attorney's fees and
expenses of the prevailing party.
6. Third Parties. Except as set forth in Section 9 of this Assignment,
-------------
no third party shall have the benefit of any of the provisions of this
Assignment, nor is this Assignment made with the intent that any person or
entity other than Assignor or Assignee shall rely hereon.
7. No Representations or Warranties. This Assignment shall not be
--------------------------------
construed as a representation or warranty by Assignor as to the transferability
of the Intangibles, and Assignor
shall have no liability to Assignee in the event that any or all of the
Intangibles (i) are not transferable to Assignee or (ii) are canceled or
terminated by reason of this assignment or any acts of Assignee.
8. Limited Liability. This Assignment is subject to Section 11.Q. of the
-----------------
Contract.
9. Successors and Assigns. This Assignment shall be binding upon and
----------------------
inure to the benefit of the parties hereto and their respective successors and
assigns.
IN WITNESS WHEREOF, Assignor and Assignee have executed this Assignment the
day and year first above written.
ASSIGNOR:
FIRST CAPITAL INCOME AND GROWTH FUND
SERIES XII, an Illinois limited partnership
By: First Capital Financial Corporation, its
general partner
By: _______________________
ASSIGNEE:
EXHIBITS
--------
A - Legal Description of Property
EXHIBIT P
---------
This instrument was prepared by and after recording
should be mailed to:
Xxxxxxx X. Xxxxxxxxx
Xxxx, Xxxxxx & Xxxxxxxxx
Two North LaSalle Street, Suite 2200
Xxxxxxx, Xxxxxxxx 00000
Property Appraisers Parcel
Identification Number: _________________
FLORIDA SPECIAL WARRANTY DEED
THIS SPECIAL WARRANTY DEED, made and executed this ____ day of
____________, 1997, by FIRST CAPITAL INCOME AND GROWTH FUND -- SERIES XII
(authorized to do business in Florida as First Capital Income and Growth Fund,
Ltd. --Series XII), a limited partnership existing under the laws of Illinois,
and having its principal place of business at Two Xxxxx Xxxxxxxxx Xxxxx, Xxxxx
0000, Xxxxxxx, Xxxxxxxx 00000 hereinafter called (the "Grantor"), to
________________________________________ whose post office address is
________________________________________ hereinafter called (the "Grantee").
Witnesseth, that the Grantor, for and in consideration of the sum of
$____________ and other valuable considerations, receipt whereof is hereby
acknowledged, by these presents does grant, bargain, sell, alien, remise,
release, convey and confirm unto the Grantee, all that certain land situated in
Broward, County, State of Florida to wit:
See legal description attached hereto and made a part hereof as Exhibit
"A".
TOGETHER, with all the tenements, hereditaments and appurtenances thereto
belonging or in anywise appertaining,
TO HAVE AND TO HOLD, the same in fee simple forever.
AND the Grantor hereby covenants with said Grantee that the Grantor is
lawfully seized of said land in fee simple; that it has good, right and lawful
authority to sell and convey said land; that it hereby fully warrants the title
to said land and will defend the same against the lawful claims of all persons
claiming by, through or under the said Grantor, but not otherwise.
IN WITNESS WHEREOF, the Grantor has caused these presents to be executed in
its name, by its proper officers thereunto duly authorized, the day and year
first above written.
Signed, sealed and delivered in the FIRST CAPITAL INCOME AND GROWTH
presence of: FUND -- SERIES XII, an Illinois
limited partnership
____________________________________ By: First Capital Financial
Witness Signature Corporation, a Florida
corporation, its general partner
____________________________________
Printed Name
By:______________________________
Its:_____________________________
____________________________________
Witness Signature
____________________________________
Printed Name
STATE OF ILLINOIS )
) SS
COUNTY OF XXXX )
I, the undersigned, a Notary Public in and for the County and State
aforesaid, do hereby certify that ______________________________, personally
known to me, appeared before me this day and did say that s/he is the (Vice)
President of First Capital Financial Corporation, a Florida corporation, the
general partner of INCOME AND GROWTH FUND -- SERIES XII, an Illinois limited
partnership, who is personally known to me to be the same person whose name is
subscribed to the foregoing instrument as such officer and acknowledged that
s/he signed and delivered the said instrument as the free and voluntary act of
said corporation for the uses and purposes therein set forth.
Given under my hand and notarial seal this ____ day of _____________, 1999.
_________________________________
Notary Public
My Commission Expires:______________
