EXHIBIT 10-H
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(J-XII)
PURCHASE AGREEMENT AND JOINT ESCROW INSTRUCTIONS
(Park Center Plaza; San Jose, California)
THIS AGREEMENT is made and entered into as of December ___, 1997 (the
"Effective Date") by and between JMB/SAN XXXX ASSOCIATES, an Illinois
limited partnership (hereinafter called _xe "Seller":"Seller"), and DIVCO
WEST PROPERTIES LLC, a Delaware limited liability company (hereinafter
called _xe "\"Buyer\":"_"Buyer").
R E C I T A L S
A. Seller is the owner of that certain real property located in
the City of San Xxxx, County of Santa Xxxxx, State of California,
consisting primarily of an office complex and related parking facilities
sometimes known as "Park Center Plaza".
B. Buyer desires to purchase such premises on the terms and
conditions hereinafter documented.
NOW, THEREFORE, in consideration of the mutual undertakings of the
parties hereto, it is hereby agreed as follows:
1. Purchase and Sale. Seller shall sell to Buyer, and Buyer shall
purchase from Seller, the following:
A. That certain real property located in San Jose,
California and commonly known as the Park Center Plaza, and being more
particularly described on Exhibit "A" attached hereto (the "Real
Property");
B. All of Seller's right, title and interest in and to any
rights, privileges and easements appurtenant to the Real Property,
including, without limitation, all minerals, oil, gas and other hydrocarbon
substances on and under the Real Property, as well as all development
rights, air rights, water, water rights, riparian rights and water stock
relating to the Real Property and any rights-of-way or other appurtenances
used in connection with the beneficial use and enjoyment of the Real
Property, and all of Seller's right, title and interest in and to all roads
and alleys adjoining or servicing the Real Property (collectively, the
"Appurtenances");
C. All of Seller's right, title and interest in and to all
improvements and fixtures located on the Real Property, including, without
limitation, all buildings and structures presently located on the Real
Property, all apparatus, equipment and appliances used in connection with
the operation or occupancy of the Real Property, such as heating and air
conditioning systems and facilities used to provide any utility,
refrigeration, ventilation, garbage disposal, landscaping and cleaning
equipment, or other services on the Real Property, and along with all on-
site parking (collectively, the "Improvements");
D. All personal property owned by Seller located at the
Property and utilized in connection with the operation or maintenance of
the Property (the "Personal Property"); and
E. All right, title and interest of Seller in and to the
name "Park Center Plaza", any lease and occupancy rights (including,
without limitation, the lessor's interest in and to all tenant leases,
including all amendments, modifications and agreements and all material
correspondence and other documents affecting in any way any of the parties'
obligations under each such lease (the "Leases"), and Seller's interest in
all refundable security deposits and prepaid rent, if any, under the Leases
and any and all guaranties, letters of credit or other credit enhancement
relating to the Leases), any and all licenses, permits, certificates of
occupancy, development rights, plans and specifications, utility contracts
and, to the extent approved by Buyer pursuant to this Agreement, all other
agreements relating to the ownership, use and operation of the Property, as
defined below (collectively, the "Intangible Property").
All of the items referred to in subparagraphs A, B, C, D and E
above are collectively referred to as the "Property".
2. Purchase Price.
A. The purchase price (the _xe "\"Purchase
Price\":"_"Purchase Price") for the Property shall be the sum of Seventy-
Eight Million Two Hundred Fifty Thousand and No/100 Dollars ($78,250,000).
3. Payment of Purchase Price. The Purchase Price shall be paid to
Seller by Buyer as follows:
A. Escrow Deposit. Within two (2) business days of the
Effective Date, Buyer shall deliver $250,000 (together with all interest
thereon, the _xe "\"Escrow Deposit\":"_"Initial Escrow Deposit") to Chicago
Title Insurance Company, 000 Xxxx Xxxxxx Xxxxxx, Xxx Xxxx, Xxxxxxxxxx 00000
Attention: Xxxxx Xxxxxx (which company or such other national title
insurance company selected by Buyer within two (2) business days of the
Effective Date, and reasonably approved by Seller, in its capacity as
escrow holder hereunder, is called _xe "\"Escrow Holder\":"_"Escrow
Holder"). In addition, if Buyer shall deliver the "Approval Notice" prior
to the expiration of the "Due Diligence Period", as provided (and defined)
in paragraph 4B hereof, Buyer shall concurrently therewith deliver Buyer's
check in the amount of $500,000 (the "Additional Escrow Deposit") to Escrow
Holder. The Additional Escrow Deposit shall be in the form of Buyer's
check which shall be held uncashed by the Escrow Holder until such time as
the Closing occurs or, pursuant to the terms hereof, Seller notifies Escrow
Holder and Buyer that Seller believes in its good faith discretion that it
is entitled to the Escrow Deposit. The Initial Escrow Deposit to be made
hereunder shall be made by a bank or cashier's check drawn on a major
national money center banking institution (or by other delivery of good
funds reasonably acceptable to Seller), and the amounts so deposited shall
be held by Escrow Holder as a deposit against the Purchase Price in
accordance with the terms and provisions of this Agreement. The parties
hereto hereby acknowledge that the closing of the transactions hereunder
(the "Closing") will occur not later than December 30, 1997, and that the
parties will reasonably cooperate to most effectively and efficiently cause
the delivery of all sums hereunder so as to avoid multiple wires or
deliveries of funds hereunder. As used herein, the term "Escrow Deposit"
means the Initial Escrow Deposit and, from and after the delivery of good
funds, the Additional Escrow Deposit, together with all interest earned on
such deposits while the same are held in escrow hereunder. At all times in
which the Escrow Deposit is being held by the Escrow Holder, the Escrow
Deposit shall be invested by Escrow Holder in the following investments
(_xe "\"Approved Investments\":"_"Approved Investments"): (i) United
States Treasury obligations, (ii) United States Treasury-backed repurchase
agreements issued by a major national money center banking institution
reasonably acceptable to Seller, or (iii) such other manner as may be
reasonably agreed to by Seller and Buyer. The Escrow Deposit shall be
disposed of by Escrow Holder only as provided in this Agreement.
Notwithstanding anything to the contrary contained herein the Escrow Holder
shall not be obligated or entitled to cash the Buyer's check for the
Additional Escrow Deposit until such time as the Closing occurs or Seller
notifies Escrow Holder and Buyer that Seller believes in its good faith
discretion that it is entitled to received the Escrow Deposit pursuant to
the terms hereof. In the event that pursuant to the terms hereof Buyer is
entitled to the return of the Escrow Deposit, Buyer's check for the
Additional Escrow Deposit shall be returned to Buyer uncashed.
B. Closing Payment. The balance of the Purchase Price
(i.e., the Purchase Price less the sum of the Escrow Deposit available as
of the date thereof in good funds, as such amounts shall be adjusted by the
prorations and credits specified herein) shall be paid by wire transfer
through "Escrow" as hereinafter provided of immediately available federal
funds on the Closing Date (the amount to be paid under this subparagraph B
being herein called the "Closing Payment").
4. Conditions Precedent.
A. Title Matters.
Title Report.
(a) Buyer has received a copy of a preliminary title report (_xe
"\"Preliminary Title Report\":"_"Preliminary Title Report") covering the
Property from Chicago Title Insurance Company (which company, or such other
national title insurance company selected by Buyer within two (2) business
days of the Effective Date and reasonably approved by Seller, in its
capacity as title insurer hereunder, is herein called the _xe "\"Title
Company\":"_"Title Company"). In addition, Seller has ordered (and will
use good faith efforts to cause the delivery to Buyer on or before December
15, 1997) an update of that certain survey of the Property prepared by
Mountain Pacific Surveys, which survey shall be certified in customary form
to Buyer and Title Company (_xe "\"Survey\":"_"Survey"). If Buyer shall
fail to deliver a "Title Objection Notice" (as hereinafter defined) setting
forth those title and survey matters to which Buyer objects in its sole and
absolute discretion on or before the date which is five (5) business days
prior to the end of the "Due Diligence Period", as hereinafter defined (the
"Title Review Period"), Buyer shall be deemed to have disapproved the
exceptions to title shown on the Preliminary Title Report and the matters
disclosed on any survey(s) obtained or delivered hereunder.
(b) Additional Title Matters. Approval by Buyer in its sole and
absolute discretion of any additional exceptions to title matters first
disclosed to or discovered by Buyer after the delivery of the Title
Objection Notice shall be a condition precedent to Buyer's obligation to
purchase the Property. Unless Buyer gives written notice that it approves
any such additional exceptions to title or survey matters, stating the
exceptions so approved, on or before the sooner to occur of three (3)
business days after receipt of written notice thereof and the Closing Date,
Buyer shall be deemed to have disapproved said additional title exception
matters.
(c) Title Objections. If Buyer shall not approve any title or
survey matters which Buyer is permitted to disapprove hereunder, Buyer
shall have the right to give written notice thereof ("Title Objection
Notice") to Seller within the time periods provided for in
Paragraphs 4A(1)(a) or (b), as applicable. Upon receipt by Seller of a
Title Objection Notice given in a timely manner (or a deemed title
disapproval under Paragraphs 4A(1)(a) or (b) above), then Seller shall have
until the sooner to occur of (1) three (3) business days from receipt of
such Title Objection Notice (or from the date of Buyer's deemed disapproval
as aforesaid) and (2) the Closing Date, within which to notify Buyer as to
each properly disapproved matter either that (i) Seller elects not to cause
such disapproved matter to be removed as of the Closing Date (or otherwise
take any action with respect thereto), or (ii) Seller intends to either (a)
use commercially reasonable efforts to cause such disapproved matter to be
removed on the Closing Date, or (b) obtain a title endorsement (if
available) reasonably acceptable to Buyer insuring over such disapproved
matter; provided, however, Seller shall have no liability if for any
reason, after electing under (ii) above, such additional disapproved
matters are not removed or insured over in a form reasonably acceptable to
Buyer as of the Closing Date. Failure to deliver any written notification
by Seller of its election within such period shall be deemed to be an
election not to cause any such additional disapproved matters to be
removed. If Seller elects not to cause any or all such additional
disapproved matters to be removed or insured over as aforesaid, Buyer shall
have until the sooner to occur of (1) three (3) business days from receipt
of written notice thereof (or from the date of Seller's deemed election as
aforesaid) and (2) the Closing Date, within which to notify Seller in
writing either that (x) Buyer revokes its disapproval and will proceed with
the purchase of the Property without any reduction in the Purchase Price
and will take subject to such matters, or (y) Buyer terminates this
Agreement (and thereupon the Escrow Deposit shall be delivered to Buyer).
Failure to deliver any written notification by Buyer of its election within
such period shall be deemed to be an election to terminate this Agreement.
(d) Permitted Exceptions. All matters set forth on the Preliminary
Title Report which are approved by Buyer pursuant to the terms are herein
called the "Permitted Exceptions". The term "Permitted Exceptions" shall
additionally include (i) any title matters objected to by Buyer, which
objections are subsequently waived in writing by Buyer, and (ii) any title
matters objected to by Buyer, which objections are removed or which are
otherwise satisfactorily cured as determined by Buyer in its sole and
absolute discretion. Buyer shall have the option to waive the condition
precedent set forth in this paragraph 4A(1) by written notice to Seller.
In the event of such waiver, such condition shall be deemed satisfied.
(2) Exceptions to Title. Buyer shall be obligated to accept
title to the Property, subject to the following exceptions to title:
(a) Real estate taxes and assessments not yet due and
payable;
(b) The standard printed exceptions of the standard form ALTA
owner's policy of title insurance with so-called "extended coverage" issued
by Title Company in the State of California; and
(c) The Permitted Exceptions.
Conclusive evidence of the availability of such title shall be the
irrevocable commitment of Title Company to issue to Buyer on the Closing
Date a standard ALTA owner's policy of title insurance with so-called
"extended coverage" ("Owner's Policy"), in the face amount of the Purchase
Price, which policy shall (i) show title to the Property to be vested of
record in Buyer, (ii) show the Permitted Exceptions to be the only
exceptions to title, and (iii) contain such endorsements or additional
coverage as Buyer may have requested and Title Company shall have committed
to issue in writing during the Due Diligence Period to issue.
B. Due Diligence Reviews. Buyer shall have until 5:00 p.m.
(Pacific time) on December 26, 1997 (the _xe "\"Due Diligence
Period\":"_"Due Diligence Period"), within which to perform and complete
all of Buyer's due diligence examinations, reviews and inspections of all
matters pertaining to the purchase of the Property, including all leases,
service contracts, survey and title matters, and all physical,
environmental, structural, zoning, land use and compliance matters and
conditions respecting the Property and any other matters Buyer deems
relevant in its sole and absolute discretion. During the Due Diligence
Period, Seller shall provide Buyer with reasonable access to the Property
upon reasonable advance notice. Prior to the Effective Date, Seller shall
have delivered to Buyer or made available to Buyer at the office of the
Property in San Jose, California all leases, service contracts, third party
reports or studies, correspondence with tenants or service providers and
all other material documents respecting the Property (to the extent the
same are known to Seller and are in Seller's possession or reasonably
available to Seller). Buyer shall at all times conduct its due diligence
review, inspections and examinations in a manner so as to not cause
material damage, loss, cost or expense to Seller or the Property and so as
to not materially interfere with or disturb any tenant at the Property, and
Buyer will indemnify, defend, and hold Seller and the Property harmless
from and against any such damage, loss, cost or expense (the foregoing
obligation surviving any termination of this Agreement); provided, however,
nothing contained in the foregoing shall impose any liability upon Buyer
for the mere discovery by Buyer of any pre-existing conditions. Without
limitation on the foregoing, in no event shall Buyer (a) make any intrusive
physical testing (environmental, structural or otherwise) at the Property
(such as soil borings, water samplings or the like) without Seller's
express written consent. Buyer will coordinate any tenant contact with
Seller and comply with any reasonable requirements of Seller in connection
therewith (including scheduling tenant contacts toward the end of the Due
Diligence Period). Seller shall have the right, at its option, to cause a
representative of Seller to be present at all inspections, reviews and
examinations conducted hereunder. Buyer shall promptly deliver to Seller
true, accurate and complete copies of any final written reports relating to
the Property prepared for or on behalf of Buyer by any third party (without
representation or warranty of any kind by Buyer with respect thereto) and
in the event of termination hereunder, shall return all documents and other
materials furnished by Seller hereunder. Buyer shall keep all information
or data received or discovered in connection with any of the inspections,
reviews or examinations strictly confidential. If, on or before the
expiration of the Due Diligence Period, based upon such review, examination
or inspection, Buyer shall determine in its sole and absolute discretion
that it intends to proceed with the acquisition of the Property, then Buyer
shall promptly notify Seller and Escrow Holder of such determination in
writing (such notice being herein called the "Approval Notice") and
concurrently therewith Buyer shall deliver the Additional Escrow Deposit to
Escrow Holder (and thereafter, Buyer shall have no further right to
terminate this Agreement pursuant to this paragraph 4B). If, however, on
or before the expiration of the Due Diligence Period, based upon such
review, examination or inspection, Buyer shall determine in its sole and
absolute discretion that it no longer intends to acquire the Property, then
Buyer shall promptly notify Seller of such determination in writing (such
notice being herein called the "Termination Notice"), whereupon the Escrow
Deposit shall be returned to Buyer and this Agreement, and the obligations
of the parties hereunder, shall terminate. In the event that, on or before
the expiration of the Due Diligence Period, Buyer shall fail to have
delivered the Approval Notice to Seller (and concurrently therewith deposit
the Additional Escrow Deposit with Escrow Holder as provided for in this
Agreement), Buyer shall be deemed to have elected not to proceed with the
acquisition of the Property whereupon the Escrow Deposit shall be returned
to Buyer and this Agreement, and the obligations of the parties hereunder,
shall terminate.
C. Estoppel Certificates. Receipt of estoppel certificates
("Tenant Estoppel Certificates"), from all tenants leasing more than 10,000
square feet of space, together with such additional tenants as may be
required so that Tenant Estoppel Certificates are received from tenants
leasing, in the aggregate, not less than 80% of the net rentable square
feet of space covered by leases in effect as of the date hereof, shall be a
condition precedent to Buyer's obligation to purchase the Property
hereunder. Each Tenant Estoppel Certificate shall either be substantially
in the form provided in Exhibit "C" attached hereto and made a part hereof
or in the form, if any, prescribed in the applicable tenant lease and shall
disclose no material defaults or other adverse information which is
materially inconsistent with the leases or the "Rent Roll" (as hereinafter
defined). Seller's sole obligation hereunder shall be to utilize
commercially reasonable efforts to obtain a Tenant Estoppel Certificate
from each tenant at the Property (such reasonable efforts obligations not
including any obligation to institute legal proceedings or to expend monies
therefor), but such obligation shall not affect the provision of such
Tenant Estoppel Certificates as a condition precedent to closing. Without
limiting the condition that Buyer received the Estoppel Certificates
described above, Seller shall deliver at the Closing a Seller's estoppel
certificate ("Seller's Estoppel") for each tenant that does not deliver a
Tenant Estoppel Certificate. The Seller's Estoppel shall state that (i)
attached to such estoppel is a true, correct and complete copy of the
applicable tenant lease (including all amendments or modifications
thereto), (ii) there is no default under the applicable lease, (iii) the
rent and other charges payable under the applicable lease, (iv) the
commencement and termination date of the applicable lease, and (v) the
suite number and square footage covered by the applicable lease. The
Seller's Estoppel shall be subject to the limitations on survival contained
in paragraph 7C hereof and the limitations on liability contained in
paragraph 9B hereof.
5. Closing Procedure. The sale and purchase herein provided shall
be consummated on the Closing Date through escrow ("Escrow") with the Title
Company. As used herein, _xe "\"Closing Date\":"_"Closing Date" means
December 30, 1997, or such earlier date as may be agreed upon by Buyer and
Seller; provided, however, if any of the conditions to Closing set forth in
this Agreement is not satisfied on or before the Closing Date or if Buyer
shall claim that Seller in is default or has otherwise breached its
obligations under this Agreement, Seller shall have the right, at its sole
option, to extend the Closing Date for up to ten (10) days in order to
attempt to satisfy such conditions or cure such defaults or breaches.
A. Escrow. On or before the Closing Date, the parties shall
deliver to Title Company the documents described below. Such deliveries
shall be made pursuant to escrow instructions (_xe "\"Escrow
Instructions\":"_"Escrow Instructions") to be executed among Buyer, Seller
and Title Company in form reasonably acceptable to such parties in order to
effectuate the intent hereof.
B. Delivery by Parties.
(1) Seller Deliveries. Seller shall deliver to Escrow the
following:
(a) By Seller, a duly executed and acknowledged grant deed
(_xe "\"Deed\":"_"Deed") in the form of Exhibit "D" attached hereto and
made a part hereof,
(b) A duly executed and acknowledged xxxx of sale, assignment
and assumption agreement (_xe "\"Assignment and Assumption
Agreement\":"_"Assignment and Assumption Agreement") in the form of Exhibit
"E" attached hereto and made a part hereof;
(c) Duly executed and acknowledged certificates sufficient
for State and Federal law purposes) regarding the "non-foreign" status of
Seller;
(d) To the extent in Seller's possession or control,
originals (or copies certified as true and complete, if originals are
unavailable) of all tenant leases, Service Agreements, Parking Agreements
and Rooftop Agreements. In addition, Seller shall deliver copies of all
guaranties, warranties, licenses, permits, certificates of occupancy, plans
and specifications, keys and other applicable management material
respecting the Property (provided the foregoing items may be delivered by
Seller causing the same to be retained at the Property);
(e) Notices to tenants in form reasonably acceptable to
Seller and Buyer informing tenants of the sale of the Property to Buyer and
the transfer of security deposits ("Tenant Notices");
(f) A signed "Closing Statement" (as hereinafter defined);
(g) Evidence reasonably satisfactory to Buyer and Title
Company respecting the due organization of Seller and the due authorization
and execution of this Agreement and the documents required to be delivered
hereunder; and
(h) Such additional documents as may be reasonably required
by Buyer and Title Company in order to consummate the transactions
hereunder (provided the same do not materially increase the costs to, or
liability or obligations of, Seller in a manner not otherwise provided for
herein).
(2) Buyer Deliveries. Buyer shall deliver to Escrow the
following:
(a) The Closing Payment in immediately available federal
funds;
(b) A duly executed and acknowledged Assignment and
Assumption Agreement;
(c) A signed Closing Statement;
(d) Evidence reasonably satisfactory to Seller and Title
Company respecting the due organization of Buyer and the due authorization
and execution of this Agreement and the documents required to be delivered
hereunder; and
(e) Such additional documents as may be reasonably required
by Seller and Title Company in or to consummate the transactions hereunder
(provided the same do not materially increase the costs to, or liability or
obligations of, Buyer in a manner not otherwise provided for herein).
(3) Delivery to Parties. Upon the satisfaction of the
conditions set forth in the Escrow Instructions, then (x) the Deed shall be
delivered to Buyer by Title Company's depositing the same for recordation,
(y) the Closing Payment (and the Escrow Deposit) shall be delivered by
Title Company to Seller and (z) the other deliveries appropriately
exchanged and delivered to the parties.
C. Closing Costs. Seller shall pay (i) the title insurance
premium for the Owner's Policy at a rate not in excess of standard issue
rates (but excluding any additional or extended coverage or endorsements
requested by Buyer), (ii) any documentary transfer tax imposed by the
County of Santa Xxxxx and attributable to the Deed (the "County Tax"),
(iii) one-half of any local transfer taxes (other than the County Tax)
attributable to the Deed, (iv) the costs to update the Survey and (v) one-
half of any escrow or recording charges attributable to the Deed. Buyer
shall pay (i) the costs of any ALTA or so called "extended coverage" in
connection with, or endorsements to, the Owner's Policy, together with the
cost of any other title insurance coverage (such as lender's insurance
policies), (ii) one-half of any local transfer taxes (other than the County
Tax) attributable to the Deed, (iii) one-half of any escrow or recording
charges and (iv) all fees, costs or expenses incurred by Buyer in
connection with Buyer's due diligence reviews hereunder. Each of Seller
and Buyer shall pay its own attorneys' fees and its respective share of
prorations as hereinafter provided. Notwithstanding the foregoing, in the
event the sale contemplated hereby does not close on the Closing Date, then
each party shall pay all costs incurred by it.
D. Prorations.
(1) Items to be Prorated. The following shall be prorated
between Seller and Buyer such that items of income and expense through the
day prior to the Closing Date shall be allocated to Seller, and items of
income and expense for the Closing Date and thereafter shall be allocated
to Buyer:
(a) All real estate taxes and assessments on the Property for
the current year on a per diem basis. In no event shall Seller be charged
with or be responsible for any increase in the taxes on the Property
resulting from the sale of the Property or from any improvements made or
leases entered into on or after the Closing Date. If any assessments on
the Property are payable in installments, then the installment for the
current period shall be prorated (with Buyer assuming the obligation to pay
any installments due after the Closing Date).
(b) All fixed and additional rentals under the leases,
security deposits and other tenant charges. Seller shall deliver or
provide a credit in an amount equal to all prepaid rentals for periods
after the Closing Date and all refundable security deposits (to the extent
the foregoing are held by Seller and are not applied or forfeited prior to
the Closing Date) to Buyer on the Closing Date. Rents which are delinquent
as of the Closing Date shall not be prorated on the Closing Date. Buyer
shall include such delinquencies in its normal billing and shall diligently
pursue the collection thereof in good faith after the Closing Date (but
Buyer shall not be required to litigate or declare a default in any lease).
To the extent Buyer receives rents on or after the Closing Date, such
payments shall be applied first toward then current rent owed to Buyer in
connection with the applicable lease for which such payments are received,
and any excess monies received shall be applied toward the payment of any
delinquent rents, with Seller's share thereof being promptly delivered to
Seller within fifteen (15) days after receipt of the same by Buyer. Buyer
may not waive any delinquent rents nor modify a lease so as to reduce or
otherwise affect amounts owed thereunder for any period in which Seller is
entitled to receive a share of charges or amounts without first obtaining
Seller's written consent. Seller hereby reserves the right to pursue any
damage remedy (but in no action for eviction or lease termination) against
any tenant owing delinquent rents and any other amounts to Seller. Buyer
shall reasonably cooperate with Seller in any collection efforts hereunder
(but shall not be required to litigate or declare a default in any lease).
With respect to delinquent rents and any other amounts or other rights of
any kind respecting tenants who are no longer tenants of the Property as of
the Closing Date, Seller shall retain all rights relating thereto.
Reimbursement amounts due Seller under any reciprocal easement agreements
affecting the Property shall be prorated in the same manner as rents
hereunder.
(c) All operating expenses, including those under any
reciprocal easement agreements affecting the Property.
(2) Calculation. The prorations and payments shall be made
on the basis of a written statement submitted to Buyer and Seller by Escrow
Holder prior to the Close of Escrow and approved by Buyer and Seller. In
the event any prorations or apportionments made under this subparagraph D
shall prove to be incorrect for any reason, then any party shall be
entitled to an adjustment to correct the same provided written notice of
such inaccuracy and request for correction is given within six months after
the date hereof. Any item which cannot be finally prorated because of the
unavailability of information shall be tentatively prorated on the basis of
the best data then available and reprorated when the information is
available. The obligations of Seller and Buyer under this paragraph 5D(2)
shall survive the closing until June 15, 1998 (and all reprorations shall
be finalized prior to such date).
6. Risk of Loss. If any of the Property is damaged or destroyed
prior to the Closing Date, and such damage or destruction would cost less
than Two Hundred Fifty Thousand Dollars ($250,000) to repair or restore and
is covered by insurance (other than the deductible amount, if any), then
this Agreement shall remain in full force and effect and Buyer shall
acquire the Property upon the terms and conditions set forth herein. In
such event, Buyer shall receive a credit against the Purchase Price equal
to any deductible under Seller's property damage insurance policy and
Seller shall assign to Buyer all of Seller's right, title and interest in
and to all proceeds of insurance other than amounts expended to repair any
damage or destruction and loss of rent proceeds attributable to the period
prior to Closing on account of such damage or destruction. If any of the
Property is damaged or destroyed prior to the Closing, and the cost of
repair would exceed Two Hundred Fifty Thousand Dollars ($250,000), or if
such cost of repair would not exceed $250,000 but such casualty damage is
uninsured (and Seller shall elect not to credit Buyer with the amount
necessary to repair the same, Seller having the right but not the
obligation to so credit), or condemnation proceedings are commenced against
any of the Property, then, Buyer shall have the right, at its election,
either to terminate this Agreement or to not terminate this Agreement and
purchase the Property. Buyer shall have the sooner to occur of the Closing
Date or ten (10) business days after Seller notifies Buyer in writing that
an event described in the immediately preceding sentence has occurred to
make such election by delivery to Seller of an election notice (the
"Election Notice"). Buyer's failure to deliver the Election Notice within
such period shall be deemed an election to terminate this Agreement. If
this Agreement is terminated by delivery of notice of termination to
Seller, then Buyer and Seller shall each be released from all obligation
hereunder, except as otherwise expressly provided to the contrary herein.
If Buyer continues this Agreement, Buyer shall receive a credit against the
Purchase Price equal to any deductible under Seller's property damage
insurance policy and Seller shall assign to Buyer all of Seller's right,
title and interest in and to all insurance proceeds (other than amounts
expended to repair any damage or destruction and any loss of rent proceeds
attributable to the period prior to the Closing, which shall remain the
property of Seller) or condemnation awards on account of such damage,
destruction or taking, and Buyer shall accept the Property as damaged or
destroyed, on condemned, as the case may be, and the closing shall occur on
the terms and conditions contained in this Agreement. As used in this
paragraph 6, the cost to repair or restore shall include the cost of lost
rental revenue, including additional rent and base rent, occurring after
the Closing, if any.
7. Representations, Warranties and Covenants.
A. Representations, Warranties and Covenants of Seller.
(1) General Disclaimer. Except as specifically set
forth in Paragraph 7A(2) below, the sale of the Property hereunder is and
will be made on an "as is" basis, without representations and warranties of
any kind or nature, express, implied or otherwise, including, but not
limited to, any representation or warranty concerning title to the
Property, the physical condition of the Property (including, but not
limited to, the condition of the soil or the Improvements), the
environmental condition of the Property (including, but not limited to, the
presence or absence of hazardous substances on or respecting the Property),
the compliance of the Property with applicable laws and regulations
(including, but not limited to, zoning and building codes or the status of
development or use rights respecting the Property), the financial condition
of the Property or any other representation or warranty respecting any
income, expenses, charges, liens or encumbrances, rights or claims on,
affecting or pertaining to the Property or any part thereof. Buyer
acknowledges that, during the Due Diligence Period, Buyer will have had the
opportunity to examine, review and inspect all matters which in Buyer in
its sole and absolute judgment bears upon the Property and its value and
suitability for Buyer's purposes. Except as to matters specifically set
forth in Paragraph 7A(2) below, Buyer will acquire the Property solely on
the basis of its own physical and financial examinations, reviews and
inspections and the title insurance protection afforded by the Owner's
Policy. Without limitation thereon, Buyer agrees that it will not pursue
any rights of contribution or other rights or remedies against Seller under
the Comprehensive Environmental Response, Compensation and Liability Act
("CERCLA") or any other applicable environmental laws, rules or
regulations. The provisions of the preceding sentence shall not in any way
limit Buyer's right to seek contribution or other rights or remedies
against Seller under the Comprehensive Environmental Response, Compensation
and Liability Act ("CERCLA") or any other applicable environmental laws,
rules or regulations in the event that any claim is made against Buyer
under the Comprehensive Environmental Response, Compensation and Liability
Act ("CERCLA") or any other applicable environmental laws, rules or
regulations by any governmental agency or any third party based on any
facts or circumstances arising prior to the Closing (such rights or
remedies in all events being subject to the limitations on liabilities set
forth in this Agreement, including those set forth in paragraph 9B hereof).
(2) Limited Representations and Warranties of Seller. Seller
hereby represents and warrants that, except as set forth in Exhibit "F"
attached hereto and made a part hereof, Seller has no knowledge that any of
the following statements is untrue (and, for this purpose, Seller's
knowledge shall mean only the present actual knowledge of Xxxxxx Xxxxxxx
without any duty to investigate (other than to make inquiry of Xxx
Xxxxxxxxx of Seller's third party property management company) and with any
imputed or constructive knowledge being excluded):
(a) Rent Roll. Attached as Exhibit "G" and made a part
hereof is a true, complete and accurate list, as of the date thereof, of
all tenant leases respecting the Property. Seller has made available, or
during the Due Diligence Period will make available, to Buyer true and
correct copies of the tenant leases. Seller has not received any written
notice of a material default under any of such tenant leases that remains
uncured. Notwithstanding anything to the contrary contained herein, if any
of the foregoing matters are confirmed as correct in any Tenant Estoppel
Certificate which may be delivered hereunder and thereafter the applicable
tenant takes an inconsistent position with respect to such matters, Buyer
shall look solely to such tenants for any liability or obligation in
connection with such matters.
(b) Litigation. There is no pending action, litigation,
condemnation or other proceeding against the Property or against Seller
with respect to the Property.
(c) Compliance. Seller has received no written notice from
any governmental authority having jurisdiction over the Property to the
effect that the Property is not in compliance with applicable laws and
ordinances.
(d) Agreements Affecting the Property. Other than the leases
or matters of record, Seller has not entered into any contracts or other
agreements (other than as set forth in this Agreement) relating to the
Property which will be in force on the Closing Date, except for the service
agreements described in Exhibit "H-1" (the "Service Agreements"), the
parking easements and agreements described in Exhibit "H-2" (the "Parking
Agreements") and the rooftop agreements described in Exhibit "H-3" (the
"Rooftop Agreements"). Seller has not received any written notice of any
default under any of the foregoing agreements that remains uncured.
(e) Due Authority. This Agreement and all agreements,
instruments and documents herein provided to be executed or to be caused to
be executed by Seller are and on the Closing Date will be duly authorized,
executed and delivered by and are binding upon Seller. Seller is a
partnership, duly organized and validly existing under the laws of the
State of Illinois, and is duly authorized and qualified to do all things
required of it under this Agreement. Seller has the capacity and authority
to enter into this Agreement and consummate the transactions herein
provided.
(f) Environmental Matters. Except as set forth in the
reports described in Exhibit "I" attached hereto and made a part hereof
(the "Environmental Reports"), Seller has received no written notice of the
existence, deposit, storage, removal, burial or discharge of any material
known to Seller to be a "Hazardous Material" at, upon, under or within the
Property, in an amount which would, as of the date hereof, give rise to an
"Environmental Compliance Cost". The term "Hazardous Material" shall mean
(i) asbestos, petrochemicals or hydrocarbons and any chemicals, flammable
substances or explosives, any radioactive materials (including radon), any
hazardous wastes or substances which have, as of the date hereof, been
determined by any applicable Federal, State or local government law to be
hazardous or toxic by the U.S. Environmental Protection Agency, the U.S.
Department of Transportation, and/or any instrumentality now or hereafter
authorized to regulate materials and substances in the environment which
has jurisdiction over the Property ("Environmental Agency"), and (ii) any
oil, petroleum or petroleum derived substance, any drilling fluids,
produced waters and other wastes associated with the exploration,
development or production of crude oil, which materials listed under items
(i) and (ii) above cause the Property (or any part thereof) to be in
violation of any applicable environmental laws or the regulations of any
Environmental Agency; provided, however, that the term "Hazardous Material"
shall not include motor oil and gasoline contained in or discharged from
vehicles not used primarily for the transport of motor oil or gasoline or
any materials such as cleaning supplies, photocopy equipment supplies and
other similar materials in quantities commonly stored, found or maintained
for similar uses in properties similar to the Property. The term
"Environmental Compliance Cost" means any out-of-pocket cost, fee or
expense incurred directly to satisfy any requirement imposed by an
Environmental Agency to bring the Property into compliance with applicable
Federal, State and local laws and regulations directly relating to the
existence on the Property of any Hazardous Material. Buyer hereby
acknowledges that it is acquiring the Property subject to the matters
disclosed in the Environmental Reports, and Buyer shall at Closing, assume
the obligations for, and release Seller from any liability relating to
(whether under local, state or federal law), any matters disclosed in the
Environmental Reports; provided, however, nothing in the foregoing shall
constitute an indemnification by Buyer in favor of Seller for any third
party claims with respect to such matters and in the event that any claim
is made against Buyer by any governmental agency or any third party based
on any violation of environmental laws or any contamination of the Property
by Hazardous Materials prior to the Closing Buyer shall be entitled to seek
contribution or indemnification from Seller on account thereof in
accordance with any applicable laws, rules, regulations or statutes (such
rights or remedies in all events being subject to the limitations on
liabilities contained in this Agreement, including those set forth in
paragraph 9B hereof).
(g) Options. Seller has not given or granted (nor does
Seller have any knowledge of the existence of) any rights of first refusal,
rights of first offer or other options to acquire the Property in whole or
in part.
(h) Structural Condition. Except as otherwise disclosed to
Buyer, Seller has not received any written notice from any governmental
authorities or any third party structural reports or studies that indicate
that there are any material structural problems or deficiencies in the
Property or any part thereof.
B. Representations and Warranties of Buyer. Buyer hereby
represents and warrants that this Agreement and all agreements, instruments
and documents herein provided to be executed or to be caused to be executed
by Buyer are and on the Closing Date will be duly authorized, executed and
delivered by and are binding upon Buyer; Buyer is a limited liability
company, duly organized and validly existing and in good standing under the
laws of the State of Delaware, and is duly authorized and qualified to do
all things required of it under this Agreement; and Buyer has the capacity
and authority to enter into this Agreement and consummate the transactions
herein provided.
C. Survival. Any cause of action of a party for a breach of
the foregoing representations and warranties shall survive until
November 15, 1998, at which time such representations and warranties (and
any cause of action resulting from a breach thereof not then in litigation)
shall terminate. Notwithstanding the foregoing, if Buyer shall have actual
knowledge as of the Closing Date that any of the representations or
warranties of Seller contained herein are false or inaccurate or that
Seller is in breach or default of any of its obligations under this
Agreement, and Buyer nonetheless closes the transactions hereunder and
acquires the Property, then Seller shall have no liability or obligation
respecting such false or inaccurate representations or warranties or other
breach or default (and any cause of action resulting therefrom shall
terminate upon such closing hereunder).
D. Interim Covenants of Seller. Until the Closing Date or
the sooner termination of this Agreement:
(1) Seller shall maintain the Property in the same manner as
prior hereto pursuant to its normal course of business (such maintenance
obligations not including extraordinary capital expenditures or
expenditures not incurred in such normal course of business), subject to
reasonable wear and tear and further subject to destruction by casualty or
other events beyond the control of Seller.
(2) Seller shall not enter into any additional service
contracts or other similar agreements without the prior consent of Buyer,
except those deemed reasonably necessary by Seller which are cancelable on
thirty (30) days' notice.
(3) Seller shall have the right to continue to offer the
Property for lease in the same manner as prior hereto pursuant to its
normal course of business and, upon request, shall keep Buyer reasonably
informed as to the status of leasing prior to the Closing Date. After the
Effective Date, Seller shall not enter into any new leases or material
modifications of existing leases thereafter without the consent of Buyer
(which consent, may be given or withheld in Buyer's sole and absolute
discretion). In connection therewith, Buyer shall respond to Seller's
request to enter into a new lease or a material modification within
five (5) business days after Buyer's receipt of such request. In the event
that Buyer fails to respond to such a request within such five (5) business
day period, Buyer shall be deemed to have approved the new lease or
material modification. In no event shall Seller have any obligation to
enter into any new lease or modify any existing lease unless Buyer shall
agree to pay or reimburse Seller on the Closing Date for all landlord
costs, legal costs, tenant improvement costs and leasing commissions
incurred by Seller under or in connection therewith.
9. DISPOSITION OF DEPOSIT. IF THE TRANSACTION HEREIN PROVIDED
SHALL NOT BE CLOSED BY REASON OF SELLER'S DEFAULT UNDER THIS AGREEMENT OR
THE FAILURE OF SATISFACTION OF THE CONDITIONS DESCRIBED IN PARAGRAPH 4
HEREOF OR THE TERMINATION OF THIS AGREEMENT IN ACCORDANCE WITH PARAGRAPH 6
HEREOF, THEN THE ESCROW DEPOSIT SHALL BE RETURNED TO BUYER, AND NEITHER
PARTY SHALL HAVE ANY FURTHER OBLIGATION OR LIABILITY TO THE OTHER;
PROVIDED, HOWEVER, IF THE TRANSACTIONS HEREUNDER SHALL FAIL TO CLOSE BY
REASON OF SELLER'S DEFAULT, AND BUYER SHALL BE READY, WILLING AND ABLE TO
CLOSE, THEN BUYER SHALL BE ENTITLED TO SPECIFICALLY ENFORCE THIS AGREEMENT;
AND PROVIDED FURTHER THAT, IF FOLLOWING OR IN CONNECTION WITH A DEFAULT BY
SELLER, SELLER SHALL TAKE ACTIONS SO AS TO EITHER PREVENT THE AVAILABILITY
OF SPECIFIC PERFORMANCE TO BUYER OR WHICH MATERIALLY ADVERSELY IMPACT THE
VALUE OF THE PROPERTY SUCH THAT SPECIFIC PERFORMANCE WOULD NOT PROVIDE
BUYER SUBSTANTIALLY WITH THE BENEFITOF THE BARGAIN CONTEMPLATED IN THIS
AGREEMENT, AND THE OTHER CONDITIONS SET FORTH ABOVE SHALL BE SATISFIED,
BUYER SHALL BE ENTITLED TO A RETURN OF THE ESCROW DEPOSIT AND REIMBURSEMENT
OF ITS ACTUAL OUT-OF-POCKET COSTS PAID TO THIRD PARTIES IN CONNECTION WITH
THE TRANSACTIONS HEREUNDER (SUCH REIMBURSEMENT NOT TO EXCEED $150,000 IN
THE AGGREGATE). EXCEPT AS SET FORTH ABOVE, NO OTHER ACTIONS, FOR DAMAGES
OR OTHERWISE, SHALL BE PERMITTED IN CONNECTION WITH ANY DEFAULT BY SELLER
IN THE EVENT THE TRANSACTIONS HEREUNDER SHALL FAIL TO CLOSE. IN THE EVENT
THE TRANSACTION HEREIN PROVIDED SHALL NOT CLOSE FOR ANY REASON OTHER THAN
THE FAILURE OF SATISFACTION OF THE CONDITIONS DESCRIBED IN PARAGRAPH 4
HEREOF OR THE TERMINATION OF THIS AGREEMENT IN ACCORDANCE WITH PARAGRAPH 6
HEREOF OR THE DEFAULT OF SELLER, THEN THE ESCROW DEPOSIT SHALL BE DELIVERED
TO SELLER AS FULL COMPENSATION AND LIQUIDATED DAMAGES UNDER AND IN
CONNECTION WITH THIS AGREEMENT. IN THE EVENT THE TRANSACTION HEREIN
PROVIDED SHALL CLOSE, THE ESCROW DEPOSIT SHALL BE APPLIED AS A PARTIAL
PAYMENT OF THE PURCHASE PRICE. IN CONNECTION WITH THE FOREGOING, THE
PARTIES RECOGNIZE THAT SELLER WILL INCUR EXPENSE IN CONNECTION WITH THE
TRANSACTION CONTEMPLATED BY THIS AGREEMENT AND THAT THE PROPERTY WILL BE
REMOVED FROM THE MARKET; FURTHER, THAT IT IS EXTREMELY DIFFICULT AND
IMPRACTICABLE TO ASCERTAIN THE EXTENT OF DETRIMENT TO SELLER CAUSED BY THE
BREACH BY BUYER UNDER THIS AGREEMENT AND THE FAILURE OF THE CONSUMMATION OF
THE TRANSACTION CONTEMPLATED BY THIS AGREEMENT OR THE AMOUNT OF
COMPENSATION SELLER SHOULD RECEIVE AS A RESULT OF BUYER'S BREACH OR
DEFAULT. IN THE EVENT THE SALE OF THE PROPERTY SHALL NOT BE CONSUMMATED ON
ACCOUNT OF BUYER'S DEFAULT, THEN THE RETENTION OF THE ESCROW DEPOSIT SHALL
BE SELLER'S SOLE AND EXCLUSIVE REMEDY UNDER THIS AGREEMENT BY REASON OF
SUCH DEFAULT, SUBJECT TO THE PROVISIONS OF PARAGRAPH 9I HEREOF.
Seller's Initials Buyer's Initials
9. Miscellaneous.
A. Brokers.
(1) Except as provided in subparagraphs (2) and (3) below,
Seller represents and warrants to Buyer, and Buyer represents and warrants
to Seller, that no broker or finder has been engaged by it, respectively,
in connection with any of the transactions contemplated by this Agreement
or to its knowledge is in any way connected with any of such transactions.
In the event of a claim for broker's or finder's fee or commissions in
connection herewith, then Seller shall indemnify and defend Buyer from the
same if it shall be based upon any statement or agreement alleged to have
been made by Seller, and Buyer shall indemnify and defend Seller from the
same if it shall be based upon any statement or agreement alleged to have
been made by Buyer. The indemnification obligations under this Paragraph
9A(1) shall survive the closing of the transactions hereunder or the
earlier termination of this Agreement.
(2) If and only if the sale contemplated herein closes,
Seller agrees to pay a brokerage commission to Xxxxxxx Xxxxx, LLC and
Xxxxxx X. Xxxxxxxxx (collectively, the "Seller's Broker") pursuant to
separate written agreements between Seller's Broker and Seller. The
foregoing payments shall be the sole commissions, fees or payments payable
to Seller's Broker in connection with the transactions hereunder.
(3) If and only if the sale contemplated herein closes, Buyer
agrees to pay a brokerage commission to B.T. Commercial (the "Buyer's
Broker") pursuant to separate written agreements between Buyer's Broker and
Buyer. The foregoing payments shall be the sole commissions, fees or
payments payable to Buyer's Broker in connection with the transactions
hereunder.
B. Limitation of Liability.
(1) Notwithstanding anything to the contrary contained
herein, if the closing of the transactions hereunder shall have occurred
(and Buyer shall not have waived, relinquished or released any applicable
rights in further limitation), the aggregate liability of Seller arising
pursuant to or in connection with the representations, warranties,
indemnifications, covenants, contribution or other obligations (whether
express or implied) of, or rights or remedies against Seller under this
Agreement (or any document executed or delivered in connection herewith) or
otherwise in connection with the Property shall not exceed $2,500,000.
(2) No constituent partner in or agent of Seller, nor
any advisor, trustee, director, officer, employee, beneficiary,
shareholder, participant, representative or agent of any corporation or
trust that is or becomes a constituent partner in Seller (including, but
not limited to, JMB Realty Corporation) shall have any personal liability,
directly or indirectly, under or in connection with this Agreement or any
agreement made or entered into under or pursuant to the provisions of this
Agreement, or any amendment or amendments to any of the foregoing made at
any time or times, heretofore or hereafter, and Buyer and its successors
and assigns and, without limitation, all other persons and entities, shall
look solely to Seller's assets for the payment of any claim or for any
performance, and Buyer, on behalf of itself and its successors and assigns,
hereby waives any and all such personal liability. Notwithstanding
anything to the contrary contained in this Agreement, neither the negative
capital account of any constituent partner in Seller (or in any other
constituent partner of Seller), nor any obligation of any constituent
partner in Seller (or in any other constituent partner of Seller) to
restore a negative capital account or to contribute capital to Seller (or
to any other constituent partner of Seller), shall at any time be deemed to
be the property or an asset of Seller or any such other constituent partner
(and neither Buyer nor any of its successors or assigns shall have any
right to collect, enforce or proceed against or with respect to any such
negative capital account of partner's obligation to restore or contribute).
C. Entire Agreement. This Agreement contains the entire
agreement between the parties respecting the matters herein set forth and
supersedes all prior agreements between the parties hereto respecting such
matters. This Agreement may not be modified or amended except by written
agreement signed by both parties.
D. Time of the Essence. Time is of the essence of this
Agreement.
E. Interpretation. Paragraph headings shall not be used in
construing this Agreement. Each party acknowledges that such party and its
counsel, after negotiation and consultation, have reviewed and revised this
Agreement. As such, the terms of this Agreement shall be fairly construed
and the usual rule of construction, to the effect that any ambiguities
herein should be resolved against the drafting party, shall not be employed
in the interpretation of this Agreement or any amendments, modifications or
exhibits hereto or thereto.
F. Governing Law. This Agreement shall be construed and
enforced in accordance with the laws of the State of California.
G. Successors and Assigns. Buyer may not assign or transfer
its rights or obligations under this Agreement without the prior written
consent of Seller, (in which event such transferee shall assume in writing
all of the transferor's obligations hereunder, and transferor shall
thereupon be released from any obligations hereunder first arising
thereafter) provided, however, effective at, and conditioned upon, Closing
hereunder, Buyer may assign its interest in this Agreement to an entity
affiliated or associated with Xxxxx Xxxxx and/or Xxxxxx Xxxxx. No consent
given by Seller to any transfer or assignment of Buyer's rights or
obligations hereunder shall be construed as a consent to any other transfer
or assignment of Buyer's rights or obligations hereunder. No transfer or
assignment in violation of the provisions hereof shall be valid or
enforceable. Subject to the foregoing, this Agreement and the terms and
provisions hereof shall inure to the benefit of and be binding upon the
successors and assigns of the parties.
H. Notices. Any notice, consent or approval required or
permitted to be given under this Agreement shall be in writing and shall be
deemed to have been given upon (i) hand delivery, (ii) delivery or refused
delivery if deposited with Federal Express or another reliable overnight
courier service, (iii) transmission if transmitted by facsimile telecopy
(as evidenced by a printed confirmation slip), or (iv) delivery or refused
delivery if deposited in the United States mail, registered or certified
mail, postage prepaid, return receipt required (as evidenced by the return
receipt), and addressed as follows:
To Buyer:
c/o Divco West Properties, LLC
000 X. Xx. Xxxx Xxxxxx
Xxxxx 0000
Xxx Xxxx, Xxxxxxxxxx 00000
Attention: Xx. Xxxxx X. Xxxxx
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
With Copy To:
Xxxxxx, Xxxxxxxxxx & Xxxxxxxxx LLP
000 Xxxxxxx Xxxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxx, Esq.
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
To Seller:
c/o JMB Realty Corporation
000 Xxxxx Xxxxxxxx Xxxxxx
00xx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xx. Xxxxxx Xxxxxxx
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
With Copy To:
Pircher, Xxxxxxx & Xxxxx
1999 Avenue of the Stars
Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Real Estate Notices (GML)
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
I. Legal Costs. The parties hereto agree that they shall
pay directly any and all legal costs which they have incurred on their own
behalf in the preparation of this Agreement, all deeds and other agreements
pertaining to this transaction and that such legal costs shall not be part
of the closing costs. In addition, if either Buyer or Seller brings any
suit or other proceeding with respect to the subject matter or the
enforcement of this Agreement, the prevailing party (as determined by the
court, agency or other authority before which such suit or proceeding is
commenced), in addition to such other relief as may be awarded, shall be
entitled to recover reasonable attorneys' fees, expenses and costs of
investigation actually incurred. The foregoing includes, but is not
limited to, attorneys' fees, expenses and costs of investigation
(including, without limitation, those incurred in appellate proceedings),
costs incurred in establishing the right to indemnification, or in any
action or participation in, or in connection with, any case or proceeding
under Chapter 7, 11 or 13 of the Bankruptcy Code (11 United States Code
Sections 101 et seq.), or any successor statutes.
J. Counterparts; Facsimile Signatures. This Agreement may
be executed in one or more counterparts, each of which shall be deemed an
original, but all of which shall constitute one and the same document.
Each party hereto (i) has agreed to permit the use, from time to time and
where appropriate, of telecopied signatures in order to expedite the
transaction contemplated by this Agreement, (ii) intends to be bound by its
respective telecopied signature, (ii) is aware that the other party will
rely on the telecopied signature, and (iv) acknowledges such reliance and
waives any defenses to the enforcement of documents and notices effecting
the transaction contemplated by this Agreement based on the fact that a
signature or notice was sent by telecopy.
K. Waiver of Jury Trial and Consent to Venue. To the
fullest extent permitted by law, Buyer and Seller hereby waive their
respective right to trial by jury in any action, proceeding and/or hearing
on any matter whatsoever arising out of, or in any way connected with this
Agreement or any matter arising hereunder. Neither party will seek to
consolidate any such action in which a jury has been waived, with any other
action in which a jury trial cannot or has not been waived. In addition,
each party consents to venue and jurisdiction in the Superior Court for the
County of Santa Xxxxx or the federal District Court sitting in San Xxxx.
Each party acknowledges that it has received the advice of counsel with
respect to this waiver.
L. Exhibits. The parties acknowledge that Exhibits to be
attached hereto have not yet been finalized and agreed upon. In that
connection, the parties agree that they shall endeavor in good faith to
finalize and attach such Exhibits as they shall each approve within ten
(10) days of the Effective Date. Upon such agreement, the Exhibits shall
be a part of and shall be deemed incorporated herein as a part of this
Agreement. If the parties are unable to agree on such Exhibits within such
ten (10) day period, then this Agreement, and the obligations of the
parties to close hereunder, shall thereupon terminate (and the Deposit
shall be promptly returned to Buyer).
THE SUBMISSION OF THIS AGREEMENT FOR EXAMINATION IS NOT INTENDED TO
NOR SHALL CONSTITUTE AN OFFER TO SELL, OR A RESERVATION OF, OR OPTION OR
PROPOSAL OF ANY KIND FOR THE PURCHASE OF THE PROPERTY. IN NO EVENT SHALL
ANY DRAFT OF THIS AGREEMENT CREATE ANY OBLIGATION OR LIABILITY, IT BEING
UNDERSTOOD THAT THIS AGREEMENT SHALL BE EFFECTIVE AND BINDING ONLY WHEN A
COUNTERPART HEREOF HAS BEEN EXECUTED AND DELIVERED BY EACH PARTY HERETO TO
THE OTHER PARTY.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
as of the Effective Date.
SELLER:
JMB/SAN XXXX ASSOCIATES,
An Illinois limited partnership
By: JMB INCOME PROPERTIES, LTD.-XI,
an Illinois limited partnership,
General Partner
By: JMB REALTY CORPORATION,
a Delaware corporation,
General Partner
By: _________________________
Name: _______________________
Title: ________________________
By: JMB INCOME PROPERTIES, LTD.-XII,
an Illinois limited partnership,
General Partner
By: JMB REALTY CORPORATION,
a Delaware corporation,
General Partner
By: _________________________
Name: _______________________
Title: ________________________
BUYER:
DIVCO WEST PROPERTIES, LLC,
a Delaware limited liability company
By:
Name: Xxxxx X. Xxxxx
Title: Member
ESCROW HOLDER'S ACKNOWLEDGEMENT
The undersigned hereby executes this Agreement to evidence its
agreement to act as Escrow Holder in accordance with the terms of this
Agreement.
Effective Date: ________, 1997 CHICAGO TITLE INSURANCE COMPANY,
a corporation
By:__________________________________
Name: _______________________________
Title: ________________________________
"Escrow Holder"
EXHIBIT LIST
"A" - Property Description
"B" - Intentionally Deleted
"C" - Form of Tenant Estoppel Certificate
"D" - Deed
"E" - Assignment and Assumption Agreement
"F" - Exceptions to Seller's Representations and Warranties
"G" - Rent Roll
"H-1" - Service Agreements
"H-2" - Parking Agreements
"H-3" - Rooftop Agreements
"I" - Environmental Reports
"J" - Exception List for Tenant Options
EXHIBIT "A"
PROPERTY DESCRIPTION
All that certain Real Property in the City of San Xxxx, County of
Santa Xxxxx, State of California, described as follows:
All of Parcels 2, 3 and 4, as shown upon that certain Map entitled,
Parcel Map of a portion of Parcel "A" as shown on record of Survey,
recorded in Book 237 of Maps, at Page 24, Santa Xxxxx County Records, which
Map was filed for record in the Office of the Recorder of the County of
Santa Xxxxx, State of California on November 28, 1983 in Book 520 of Maps,
at Pages 39, 40, 41 and 42.
EXHIBIT "B"
INTENTIONALLY DELETED
EXHIBIT "C"
FORM OF TENANT ESTOPPEL CERTIFICATE
EXHIBIT "D"
DEED
Recording Requested By and |
When Recorded Mail To: |
|
_____________________________ |
____________________________ |
____________________________ |
____________________________ |
Attention: ________________ |
|
|_____________________________________
APN No.: _________________
DOCUMENTARY TRANSFER TAX - SEE SEPARATE TRANSFER TAX STATEMENT
GRANT DEED
FOR VALUE RECEIVED, , a
("Grantor"), grants to
,
a ____________________________________ ("Grantee"), all that certain real
property (the "Property") situated in the City of , County
of , State of California, and more particularly described
in Exhibit A attached hereto and incorporated herein by reference.
MAIL TAX STATEMENTS TO:
_________________________________
_________________________________
_________________________________
Attention: ________________________
The Property is conveyed to Grantee subject to all matters of
record.
IN WITNESS WHEREOF, the undersigned has executed this Grant
Deed on _______________, 199__.
,
a __________________
By:
Name:
Title:
EXHIBIT "A"
LEGAL DESCRIPTION
EXHIBIT "E"
ASSIGNMENT AND ASSUMPTION AGREEMENT
XXXX OF SALE, ASSIGNMENT AND ASSUMPTION
( , )
FOR VALUABLE CONSIDERATION, receipt of which is hereby acknowledged,
the undersigned, , a
("Seller"), hereby sells, transfers, assigns and conveys to ,
a ("Buyer"), the following:
1. Personal Property. All right, title and interest of Seller in
and to all personal property owned by Seller and used in connection with
the ownership, use, operation or maintenance of the Property described
below, including without limitation, those items of tangible personal
property described in Exhibit "A" attached hereto and made a part hereof
("Personal Property"), located upon, and used in the operation of, that
certain property commonly known as " ",
located in the City of , County of ,
State of (collectively, the "Property").
2. Leases. All right, title and interest of Seller in and to all
leases ("Leases") relating to the Property and described in Exhibit "B"
attached hereto.
3. Service Agreements. All right, title and interest of Seller in
and to all service agreements ("Service Agreements") relating to the
Property, or any part of the same and described in Exhibit "C" attached
hereto.
4. Intangible Property. All right, title and interest of Seller,
to the extent assignable, in and to the name "Park Center Plaza", Seller's
interest in all refundable security deposits and prepaid rent, if any,
under the Leases and any and all guaranties, letters of credit or other
credit enhancement relating to the Leases), any and all licenses, permits,
certificates of occupancy, development rights, plans and specifications,
utility contracts and, to the extent approved by Buyer pursuant to this
Agreement, all other agreements relating to the ownership, use and
operation of the Property (collectively the "Intangible Property").
This Xxxx of Sale, Assignment and Assumption is given pursuant to
that certain purchase agreement captioned "PURCHASE AGREEMENT" dated as of
, 199__ (as amended, the "Agreement"), between the Seller
and Buyer, providing for, among other things, the assignment of the
Personal Property, Leases, Service Agreements and Intangible Property. The
covenants, agreements, and limitations (including, but not limited to, the
limitations of liability provided in paragraph 9B of the Agreement)
provided in the Agreement with respect to the property conveyed hereunder
are hereby incorporated herein by this reference as if herein set out in
full and shall inure to the benefit of and shall be binding upon Seller and
Buyer, and their respective successors and assigns. Said property is
conveyed "as is" without warranty or representation, except as expressly
provided in (and subject to the limitations of) the Agreement.
This Xxxx of Sale, Assignment and Assumption may be executed in one or more
counterparts, each of which shall constitute an original, and all of which,
when taken together, shall constitute one and the same instrument.
Buyer hereby accepts the foregoing assignment of Personal Property,
Leases, Service Agreements and Intangible Property assigned hereby and
agrees to assume and discharge, in accordance with the terms thereof, all
of the burdens and obligations of Seller thereunder, to the extent the same
arise from and after the date hereof. Seller shall continue to be
responsible for all burdens and obligations of Seller under the Personal
Property, Leases, Service Agreements and Intangible Property for the period
prior to the date hereof and Buyer shall have no liability therefor.
DATED: As of ________, 199__
SELLER:
a
By:
Name:
Title:
BUYER:
a
By:
Name:
Title:
EXHIBIT "F"
EXCEPTIONS TO SELLER'S REPRESENTATIONS AND WARRANTIES
NONE.
EXHIBIT "G"
RENT ROLL
Mitsui Manufacturers Bank
Lease Dated September 1983
First Amendment Dated February 13, 1985
Consent to Sublease Dated October 15, 1990
Sublease Dated October 9, 1990
Consent to Sublease Dated February 12, 1996
Sublease Dated February 12, 1996
Letter Agreement Dated February 12, 1996
First Amendment to Sublease Agreement Dated June 4, 1997
Second Amendment to Sublease Agreement Dated June 17, 1997
Consent to Modification of Sublease Agreement Dated June 17,
1997
Price Waterhouse LLP
Lease Dated July 31, 1984
Amendment Dated March 1, 1985 (unexecuted)
Amendment Dated March 12, 1986
Storage Agreement Dated October 1, 1988
Lease Extension Dated February 10, 1993
Subordination, Nondisturbance and Attornment Agreement Dated
April, 1993
Tenant Expansion Dated September 30, 1994
Tenant Expansion Dated July 20, 1995
Tenant Expansion Dated October 25, 1995
Tenant Expansion Dated February 19, 1997
The Stephenz Group
Lease Dated November 28, 1995
Subordination, Nondisturbance and Attornment Agreement Dated
November 28, 1995
Xxxxx Xxxxxxxx LLP f/k/a Xxxxxxxxx Xxxxx and Company
Lease Dated November 9, 1984
First Amendment to Office Lease Dated February 10, 1986
Lease Extension Agreement Dated December 29, 1994
Subordination, Nondisturbance and Attornment Agreement Dated
February 22, 1995
Tenant Expansion Agreement Dated October 31, 1995
Neuronetics Corporation Inc. (Suites 750, 760 and 1380)
Lease Dated May 22, 1996
Tenant Expansion Agreement Dated September 11, 1997
Xxxxxxxx Xxxxxx Industries of California, Inc.
Suites 800/900
Lease Dated December 16, 1988
Addendum to Office Lease Dated December 16, 1988
Amendment No. 1 to Office Lease Dated December 16, 1988
Subordination, Nondisturbance and Attornment Agreement Dated
December 31, 1988
Amendment No. 2 to Office Lease and Amendment No. 1 to Work
Agreement Dated April 3, 1989
Office Sublease Dated December 16, 1994
Consent to Sublease Dated December 20, 1994
Suites 850
Lease Dated December 16, 1988
Addendum to Office Lease Dated December 16, 1988
Amendment No. 1 to Office Lease Dated December 16, 1988
Subordination, Nondisturbance and Attornment Agreement Dated
December 31, 1988
Office Sublease Dated December 16, 1994
Consent to Sublease Dated December 20, 1994
TCSI Corporation
Lease Agreement Dated January 31, 1996
Xxxxxx.Xxx Consultants, Inc.
Lease Dated January 11, 1996
Expansion and Extension Agreement Dated December 6, 1996
PR Newswire Association, Inc.
Lease Dated November 11, 1988
Lease Extension Agreement Dated November 16, 1993
Lease Extension Agreement Dated March 14, 1997
ITJ America, Inc.
Lease Dated October 13, 1997
Xxxxxxx X. Xxxxx, Xxxxxx X. Xxxx, Xxxxxxx X. Xxxxx as Trustee
and Xxxxx X. Xxxx a/k/a Groom and Cave
Lease Dated May 10, 1988
Short Form Lease Dated May 27, 1988
Addendum to Office Lease Dated July 31, 1987
Relocation Agreement Dated February 16, 1995
The Golden 1 Credit Union
Lease Dated January 18, 1996
Lease Extension Agreement Dated November 26, 0000
Xxxxx Xxxxxxx Xxxxxxx, Inc.
Lease Dated November 22, 1996
Valley Credit Union
Lease Dated September 21, 1990
Lease Extension Agreement Dated January 22, 1996
Kaplan Educational Centers, Inc. f/k/a Xxxxxxx X. Xxxxxx
Educational Center, Ltd.
Lease Dated August 16, 1990
Term Commencement Agreement Dated March 13, 1991
Xxxxxxx, Inc.
Lease Dated June 1, 1989
Lease Extension Agreement Dated August 10, 1994
Lease Extension Agreement Dated August 9, 1996
Landmark Education Corporation
Lease Dated September 8, 1997
Xxxxxxx and Xxxxxx Xxxxx d/b/a O' Deli
Lease Dated May 15, 1989
Lease Amendment Dated April 1, 1993
Assignment of Lease Dated May 15, 1993
Pacific Xxxx Directory
Lease Dated June 17, 1991
Lease Extension and Amendment Dated January 19, 1996
Term Commencement Agreement Dated March 27, 1996
Frequency Technology, Inc.
Lease Dated December 23, 1996
C&H Travel and Tours, Inc.
Lease Dated February 7, 1997
Heritage Bank Of Commerce
Lease Dated October 9, 1996 (Suite 110)
Subordination, Nondisturbance and Attornment Agreement Dated
October 9, 1996 (Suite 110)
Lease Dated March 18, 1997 (Suite 430)
Lease Dated November 18, 1997 (Suite 300)
De Leuw, Cather & Company
Lease Dated March 16, 1989
Letter Agreement Dated May 16, 1989
Tenant Expansion Agreement Dated September 19, 1990
Assignment of Lease Dated July 18, 1995
Tenant Expansion Agreement Dated November 16, 1995
Lease Extension Agreement Dated July 29, 1996
Tenant Expansion Agreement Dated March 19, 1997
Extension and Space Reduction Agreement Dated June 12, 1995
Xxxxxxxxxx, Xxxx & Immer, an accountancy corp. a/k/a Bondi &
Xxxxx
Lease Dated January 20, 1989
Lease Expansion/Extension Dated January 11, 1993
Westin Engineering, Inc.
Lease Dated June 15, 1990
Term Commencement Agreement Dated November 29, 1990
Lease Extension Agreement Dated April 5, 1995
Letter Regarding Expansion Rights Dated September 11, 1995
Xxxxxxx Xxxxx Xxxx Of Northern California/Aon Risk Services,
Inc.
Lease Dated April 11, 1995
Lease Termination Notice Dated November 17, 1997
Xxxxxx X. Manchester Incorporated & Xxxx X. Xxxxxxxx
Incorporated
Lease Dated June 15, 1990
Lease Extension Agreement Dated April 19, 1995
Letter Agreement Regarding Base Rent Abatement (undated)
Xxx X. Xxxxxxxxx and J. Xxxx Xxxx, individuals
Lease Dated July 27, 1992
Relocation Agreement Lease Dated February 7, 1994
Tenant Expansion Agreement Dated May 24, 1994
Lease Extension Agreement Dated February 19, 1997
Assignment of Lease Dated October 13, 1995
Advanced Systems Control, Inc.
Lease Dated October 8, 1996
Lease Extension Agreement Dated October 10, 1997
Caspr Library Systems Inc.
Lease Dated December 7, 0000
Xxx Xxxxxx Xx Xxxxx Xxxxx
Lease Dated November 13, 1989
Amendment Dated December 4, 1990
Expansion Agreement Dated March 8, 1994
Expansion Agreement Dated November 16, 1994
Amendment Dated May 23, 1995
City Year, Inc.
Lease Dated May 5, 1994
Lease Extension Dated August 22, 1994
Tar Chair, Maykir Yen, Xxx X. Xxx and Xxxxxxx X. Xxx as
assignee of PBRB Inc. d/b/a Caffe Dolce
Lease Dated December 18, 1995
Assignment of Lease Dated March 21, 1996
Federal Express Corporation
Lease Dated November 15, 1993
Amendment Dated March 14, 1995
TKW Enterprises Inc. d/b/a Xxxxx'x Xxxx Yuan Restaurant
Lease Dated June 27, 1994
Tam Enterprises Inc. d/b/a Sir Speedy Printing Center
Lease Dated February 28, 1994
Team Ravioli's, Inc.
Lease Dated March 30, 1992
Lease Amendment Dated June 24, 1992
Manpower, Inc./California Peninsula
Lease Dated April 17, 1991
Lease Extension Agreement Dated March 5, 1996
Xxxxx'x San Xxxx d/b/a Xxxxx'x Seafood Restaurant
Lease Dated October 17, 1985
Amendment No. 1 Dated September 15, 1992
Xxxxxxx Xxxxxxx
Lease Dated October 22, 1990
Lease Extension Agreement Dated February 8, 1996
Lease Extension Agreement Dated February 27, 1997
Xxxxxxx Properties, Inc.
Lease Dated January 8, 1992
Lease Extension Agreement Dated June 10, 1997
Sublease Dated July 10, 1997
Comms People, Inc.
Lease Dated May 28, 1997
Xxxxx X. Xxxxxxx, O.D.
Lease Dated April 11, 1989
Letter Agreement Regarding Partial Base Rent Abatement Dated
May 11, 1989
Lease Extension Agreement Dated August 24, 1995
Oracle Corporation
Lease Dated September 12, 1997
EXHIBIT "H(1)"
SERVICE AGREEMENTS
Diversified Fire Products_MTM
Xxxxxxxx Xxxxxx Industries of California, Inc._MTM
Four Seasons Landscape and Maintenance, Inc._MTM
Xxxxxxx Controls, Inc._MTM
Xxxxxxxxxx XXXX, Inc._06/30/00
Service By Medallion, Inc._06/30/98
Plantscaping_12/31/98
The Asset Assurance Co._MTM
Valley Building Maintenance_MTM
Xerox Corporation _06/30/02
Terminix Commercial_MTM
Pitney Xxxxx Fax_07/23/99
Protection Service Industries
(Fire monitoring, 185 Building)_03/19/98
Diversified Fire Products
(Fire Monitoring, 000 Xxxx Xxxxxx Xxxxx, 000 Xxxxxxx and 000 Xxxx Xxxxxx
Xxxxx)_XXX
Diversified Fire Products
(Fire Monitoring 130 Park Center Plaza)_12/17/98
EXHIBIT "H(2)"
PARKING AGREEMENTS
Agreements Date of Agreements
---------- ------------------
Grant of Reciprocal Easement and
Agreement for Maintenance September 22, 1970
Grant of Easements September 29, 1970
Agreement for Apportionment of Parking
Revenue and Expense March 1, 1972
Parking Agreement November 22, 1972
Settlement Agreement February 14, 1973
Lease of Parking Spaces February 28, 1973
Lease of Parking Spaces Parcel C
Parking Garage February 28, 1973
Grant of Easement October 22, 1973
Joinder in Grant of Reciprocal
Easement and Agreement for
Maintenance October 22, 1973
Amendment of Lease of Parking Spaces December 15, 1973
Assignment Agreement December 15, 1973
Declaration of Covenants June 10, 1974
Grant of Avigation Easement November 12, 1985
Joinder in Grant of Reciprocal Easement
and Agreement for Maintenance Xxxxxx 0, 0000
Xxxxxx Map with Certification
of the Real Property Owners October 17, 1983
Grant of Easement December 14, 1983
Agreement Among Partners of
Park Center Plaza Parcel C March 26, 1985
Parking Garage, Park Center Plaza-
The Bank of California Building,
Almaden-San Xxxxxxxx Partnership Agreement
Among Partners of New Almaden Associates March 26, 1985
EXHIBIT "H(2)"
PARKING AGREEMENTS
Parking Agreement between JMB/San Xxxx Associates, an Illinois general
partnership and New Almaden Associates, a California General Partnership
recorded June 20, 1985 in Book J377, page 1946, Official Records.
Supplemental Parking Agreement between JMB/San Xxxx Associates, an Illinois
general partnership, and New Almaden Associates.
Public Parking Covenant and Easement by JMB/San Xxxx Associates, an
Illinois general partnership, recorded October 23, 1985 in Book J494, page
1602, Official Records.
Parking Agreement between Seller and Principal Mutual Life Insurance
Company (undated).
Parking Agreement among Park Center Plaza, Xxxxx Fargo Bank and Xxxxx-
Xxxxxx-Buttery dated August 26, 1985, as amended by First Amendment to
Lease between Xxxxx Fargo Bank and Seller dated October 27, 1997.
Parking Sublease between Redevelopment Agency of the City of San Xxxx
("Redevelopment Agency") and Seller dated March 19, 1996, as amended by
First Amendment to Parking Sublease between Redevelopment Agency and Seller
dated October 27, 1997.
Parcel 2 Public Parking Covenant and Easement between New Almaden
Associates and Redevelopment Agency recorded October 23, 1985 as Instrument
No. 8566697, as amended by First Amendment to Parcel 2 Public Parking
Covenant and Agreement between Seller and Redevelopment Agency dated
October 27, 1997, recorded on October 31, 1997, as Instrument Xx. 00000000.
Xxxxxx 0, 0 and 4 Public Parking Covenant and Easement between Seller and
Redevelopment Agency, recorded October 23, 1985, as Instrument No. 8566696,
as amended by First Amendment to Parcels 1, 3 and 4 Public Parking Covenant
and Easement recorded on October 31, 1997, as Instrument No. 13919903.
Lease of Parking Spaces between Seller and ALTA Broadcasting Company dated
March 19, 1996.
Parking Lease between Xxxx Xxxx Xxxxxx Xxxxx xxx Xxxxxx Xxxxxxxxxx Bank
dated January 15, 1972, as amended by agreement dated June 1, 1981.
Reciprocal Easement Agreement between Seller and ALTA intended to be
recorded immediately prior to closing.
EXHIBIT "H(3)"
ROOFTOP AGREEMENTS
Asahi Shimbun America, Inc.
Roof License Agreement Dated August 13, 1997 (150 Almaden)
Destineer Corporation
Roof License Agreement Dated March 18, 1994
Addendum to Roof License (undated)
Lease Amendment Dated September 15, 1994
Lease Extension Agreement Dated September 11, 1997
GTE Mobilnet of California
Roof License Agreement Dated April 1, 1990
Roof License Amendment Dated March 25, 1992
License Extension Agreement Dated March 1, 1995
GWcom
Roof License Agreement Dated November 7, 1997
EXHIBIT "I"
ENVIRONMENTAL REPORTS
Law Engineering Testing Company - August 13, 1987
Health Science Associates - June 1, 1989
Blasland, Xxxxx & Xxx, Inc. - August 1994
Cygna Consulting Engineers (Building 100) - September 17, 1992
Cygna Consulting Engineers (Building 102-130) - September 17, 1992
Xxxxx Xxxxxxx & Associates - September 1992
Xxxx/Xxxxx & Associates - September 7, 1994
Xxxxx Xxxxxxx & Associates - February 1995
Xxxxx Xxxxxxx & Associates - January 12, 1998
