EXHIBIT C - FORM 8K - JMB INCOME PROPERTIES, LTD. - IX
PURCHASE AGREEMENT
(Xxxxxxxxx Plaza; Seattle, Washington)
THIS AGREEMENT is made and entered into as of the _________ day of
October, 1996, by and between PLAZA/SEATTLE LIMITED PARTNERSHIP, a
Washington limited partnership, (hereinafter called "SELLER"), and DEVON
PROPERTIES, INC., a New York corporation (hereinafter called "BUYER").
R E C I T A L S
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A. Seller is the owner of that certain real property located at
the northwest corner of Sixth Avenue and Xxxxxxxxx Street, in the City
of Seattle, County of King, State of Washington, consisting primarily of
an office tower sometimes known as "Xxxxxxxxx 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 land (the "LAND") described in
Exhibit "A" attached hereto and made a part hereof, together with all
right, title and interest of Seller in and to all improvements,
structures and fixtures located upon the Land, all right, title and
interest of Seller in and to those items of personal property described
in Exhibit "B" attached hereto and made a part hereof, all right, title
and interest of Seller in and to the name "Xxxxxxxxx Plaza", and, to the
extent assignable, all right, title and interest of Seller in and to all
leases, contract rights, agreements, tenant lists, advertising material
and telephone exchange numbers (hereinafter, collectively, the
"PROPERTY"), all upon the terms, covenants and conditions hereinafter
set forth.
2. PURCHASE PRICE. The purchase price (the "PURCHASE PRICE")
for the Property shall be the sum of $26,100,000.
3. PAYMENT OF PURCHASE PRICE. The Purchase Price shall be paid
to Seller by Buyer as follows:
A. ESCROW DEPOSIT. Concurrently herewith, Buyer shall deliver
the sum of $250,000 (which amount, together with all interest earned
thereon, is herein called the "ESCROW DEPOSIT") to Commonwealth Land
Title Insurance Company, at its offices at 00 Xxxxx XxXxxxx Xxxxxx,
Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000, (Attention: Mr. Xxxxxx Xxxx),
which company, in its capacity as escrow holder hereunder, is called
"ESCROW HOLDER"). The Escrow Deposit shall be made by delivery of a
bank or cashier's check drawn on a major national money center banking
institution reasonably acceptable to Seller (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. At all times in which the Escrow Deposit is being held by
the Escrow Holder, the Escrow Deposit shall be invested by Escrow Holder
in the following investments ("APPROVED INVESTMENTS"): (i) United
States Treasury obligations, (ii) United States Treasury-backed
repurchase agreements issued by a major national money center banking
institution reasonably acceptable to Seller, or (iii) such other manner
as may be reasonably agreed to by Seller and Buyer. The Escrow Deposit
shall be disposed of by Escrow Holder only as provided in this
Agreement.
B. CLOSING PAYMENT. The Purchase Price, as adjusted by the
application of the Escrow Deposit and by the prorations and credits
specified herein, shall be paid in cash on the "Closing Date", as
hereinafter defined (the amount to be paid under this subparagraph B
being herein called the "CLOSING PAYMENT").
4. CONDITIONS PRECEDENT
A. TITLE MATTERS.
(1) COMPLETED TITLE AND SURVEY REVIEWS. Seller has
delivered to Buyer a preliminary title report (the "PRELIMINARY TITLE
REPORT") covering the Property from Transnation Title Insurance Company
(which company, in its capacity as title insurer hereunder, is herein
called the "TITLE COMPANY"). In addition, Seller has delivered to Buyer
an ALTA/ACSM survey of the Property dated August 28, 1996, prepared by
Xxxxxxx X. Xxxxxxxx of Xxxxxxx, Xxxxxxxx & Associates, P.S. Buyer has
approved the exceptions to title shown on the Preliminary Title Report
and the matters disclosed on the Survey.
(2) ADDITIONAL TITLE AND SURVEY MATTERS. Approval by
Buyer of any additional exceptions to title or survey matter disclosed
after the date hereof shall be a condition precedent to Buyer's
obligation to purchase the Property; provided, however, Buyer's approval
to any such additional exceptions to title or survey matters shall not
be unreasonably withheld. Unless Buyer gives written notice that it
disapproves any such additional exceptions to title or survey matters,
stating the additional exceptions to title or survey matters so
disapproved, on or before the sooner to occur of (i) the Closing Date,
or (ii) the date which is five (5) business days after Buyer shall be
given written notice thereof, Buyer shall be deemed to have approved
said additional exceptions to title or survey matters. If, for any
reason, on or before the Closing Date Seller does not cause such
exceptions to title or survey matters which Buyer timely disapproves to
be removed at no cost or expense to Buyer (Seller having the right but
not the obligation to do so, except as set forth herein), the obligation
of Seller to sell, and Buyer to buy, the Property as herein provided
shall terminate, the Escrow Deposit shall be returned to Buyer and
Seller and Buyer shall have no further obligations in connection
herewith. Buyer shall have the option to waive the condition precedent
set forth in this paragraph 4A by notice to Seller. In the event of
such waiver, such condition shall be deemed satisfied.
(3) 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 printed exceptions which appear in the standard
form ALTA owner's policy of title insurance issued by Title Company in
the State of Washington; and
(c) Such exceptions to title as have been (or may
hereafter be) approved by Buyer pursuant to the provisions of
subparagraphs A(1) and A(2) above.
Conclusive evidence of the availability of such title shall be the
willingness of Title Company to issue to Buyer on the Closing Date an
ALTA owner's title insurance policy in the standard form issued in the
State of Washington ("OWNER'S POLICY"), in the face amount of the
Purchase Price, which policy shall show (i) title to the Property to be
vested of record in Buyer, and (ii) the above exceptions to be the only
exceptions to title.
B. COMPLETED DUE DILIGENCE REVIEWS.
(1) PRICE REFLECTIVE OF REVIEWS. Buyer has performed and
completed 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, warranties, survey and title
matters, and all physical, environmental and compliance matters and
conditions respecting the Property. Seller and Buyer have discussed the
results of Buyer's due diligence examinations, reviews and inspections
and the Purchase Price has been determined to appropriately take such
due diligence matters into account to Buyer's satisfaction.
(2) CONDUCT OF REVIEW. Buyer will indemnify, defend, and
hold Seller and the Property harmless from and against any such damage,
loss, cost or expense for personal injury or property damage caused by
Buyer or its agents in connection with its due diligence reviews,
inspections or examinations. Buyer hereby represents and warrants to
Seller that Buyer did not make any intrusive physical testing
(environmental, structural or otherwise) at the Property (such as soil
borings or the like) and has or promptly hereafter will return the
Property to its prior condition and repair. Upon request by Seller,
Buyer shall promptly deliver to Seller true, accurate and complete
copies of any written reports relating to the Property prepared for or
on behalf of Buyer by any third party. In the event of termination
hereunder, Buyer shall return all documents and other materials
furnished by or on behalf of Seller hereunder. Buyer hereby represents
and warrants that Buyer has, and at all times hereinafter, shall, keep
all information or data received or discovered in connection with any of
the inspections, reviews or examinations strictly confidential, except
to the extent that disclosure is required by law. The provisions of
this paragraph 4B shall survive the closing of the transactions
hereunder (or the earlier termination of this Agreement).
C. ESTOPPEL CERTIFICATES. It shall be a condition to Buyer's
obligation to purchase the Property hereunder that, on or before the
Closing Date, Buyer shall have received estoppel certificates ("TENANT
ESTOPPEL CERTIFICATES"), dated not more than thirty (30) days prior to
the Closing Date, from (i) those tenants listed on Exhibit "C" attached
hereto and made a part hereof, and (ii) a sufficient number of the
balance of the tenants at the Property so that Tenant Estoppel
Certificates shall be received under clauses (i) and (ii) hereof with
respect to not less than 75% of the net rentable square feet of space
covered by leases in effect as of the Closing Date. Each Tenant
Estoppel Certificate shall either be substantially in the form provided
in Exhibit "D" attached hereto and made a part hereof or in the form, if
any, prescribed in the applicable tenant lease; provided, however, Buyer
acknowledges that, if any tenant limits the provisions of paragraphs 4,
5, 7 and the second sentence of paragraph 7 to tenant's knowledge, such
modification shall be deemed acceptable to Buyer. 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 obligation not including any obligation to
institute legal proceedings or to expend any monies therefor). In
addition, it shall be a condition precedent to Buyer's obligation to
close hereunder that, as of the Closing Date, Buyer shall have received
an estoppel certificate addressed to Buyer in the form attached as
Exhibit "E" hereto and made a part hereof, from Seller ("SELLER'S
ESTOPPEL CERTIFICATE") as to those tenants which fail to deliver tenant
estoppel certificates. If on or before the Closing Date, the above-
described conditions are not satisfied (or waived by Buyer), then this
Agreement shall terminate at Buyer's option (and the Escrow Deposit
shall be promptly returned to Buyer).
5. CLOSING PROCEDURE. The sale and purchase herein provided
shall be consummated either through an escrow mutually agreed upon by
the parties, or at a closing conference ("CLOSING CONFERENCE") which
shall be held on the Closing Date at the offices of Devon Properties,
Inc., located at 0 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000. As used
herein, "CLOSING DATE" means October 15, 1996, or such earlier date as
may be agreed upon by Buyer and Seller.
A. ESCROW. On or before the Closing Date, the parties shall
deliver to Title Company the following: (1) by Seller, a duly executed
and acknowledged original special warranty deed ("DEED") in the form of
Exhibit "F" attached hereto and made a part hereof, and (2) by Buyer,
the Closing Payment in immediately available federal funds. Such
deliveries shall be made pursuant to escrow instructions ("ESCROW
INSTRUCTIONS") to be executed among Buyer, Seller and Title Company in
form reasonably acceptable to such parties in order to effectuate the
intent hereof. The conditions to the closing of such escrow shall
include the Title Company's receipt of the Deed, the Closing Payment and
a notice from each of Buyer and Seller authorizing Title Company to
close the transactions as contemplated herein (each of Buyer and Seller
being obligated to deliver such authorization notice at the Closing
Conference as soon as it is reasonably satisfied that the other party is
in a position to deliver the items to be delivered by such other party
under subparagraph B below).
B. DELIVERY TO PARTIES. Upon the satisfaction of the
conditions set forth in the Escrow Instructions, then (x) the Deed shall
be delivered to Buyer by Title Company's depositing the same for
recordation, (y) the Closing Payment (and the Deposit) shall be
delivered by Title Company to Seller and (z) at the Closing Conference,
the following items shall be delivered:
(1) SELLER DELIVERIES. Seller shall deliver to Buyer the
following:
(a) A duly executed and acknowledged xxxx of sale, assignment
and assumption agreement ("ASSIGNMENT AND ASSUMPTION AGREEMENT") in the
form of Exhibit "G" attached hereto and made a part hereof;
(b) A duly executed Seller's Estoppel Certificate;
(c) Duly executed and acknowledged certificates regarding the
"non-foreign" status of Seller;
(d) 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
(e) Such additional documents as may be reasonably required by
Buyer and Title Company in order to consummate the transactions
hereunder (provided the same do not materially increase the costs to, or
liability or obligations of, Seller in a manner not otherwise provided
for herein).
(2) BUYER DELIVERIES. Buyer shall deliver to Seller the
following:
(a) A duly executed and acknowledged Assignment and Assumption
Agreement;
(b) 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
(c) Such additional documents as may be reasonably required by
Seller and Title Company in or to consummate the transactions hereunder
(provided the same do not materially increase the costs to, or liability
or obligations of, Buyer in a manner not otherwise provided for herein).
C. CLOSING COSTS. Seller shall pay (i) the title insurance
premium for the Owner's Policy at a rate not in excess of standard issue
rates and only to the extent attributable to standard owner's coverage
(Buyer being obligated to pay any costs associated with any extended or
special coverage or endorsements), (ii) excise taxes payable in
connection with the Deed, and (iii) the costs to obtain the Survey.
Buyer shall pay (i) all sales and use taxes (other than the
aforementioned excise taxes), if any, payable in connection with the
transfers contemplated in this Agreement, and (ii) all fees, costs or
expenses in connection with Buyer's due diligence reviews hereunder.
Seller and Buyer shall each pay one-half of the escrow fees of Escrow
Holder (each such party's amount not to exceed $1,500.00 hereunder), and
one-half of the recording fees attributable to the Deed. Seller and
Buyer shall pay their respective shares of prorations as hereinafter
provided.
D. PRORATIONS.
(1) ITEMS TO BE PRORATED. The following shall be prorated between
Seller and Buyer as of the Closing Date:
(a) All real estate taxes and assessments on the Property which
are payable in 1996 (such proration being made on a pro-rata basis based
on the respective periods of ownership of Seller and Buyer during 1996,
notwithstanding that such taxes are for the 1995 tax year). Buyer shall
assume the obligations to pay taxes for 1996, payable in 1997, and for
all tax years thereafter. In no event shall Seller be charged with or
be responsible for any increase in the taxes on the Property resulting
from any improvements made or leases entered into on or after the
Closing Date. If any assessments on the Property are payable in
installments, then the installment for the current period as aforesaid
shall be prorated (with Buyer assuming the obligation to pay any
installments due after the Closing Date). If tax refunds become payable
for periods for which Seller was obligated to pay taxes hereunder,
Seller shall be entitled to the same (and any such amounts due Seller
shall be promptly paid over to Seller upon receipt by Buyer).
(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 have not been 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. 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 remedy 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 require 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.
(c) All operating expenses.
(d) Notwithstanding anything to the contrary contained in this
Agreement, Seller shall be responsible for the tenant improvement costs
and leasing commissions more particularly described in Exhibit "I"
attached hereto and made a part hereof. If on or before the Closing
Date, Seller has not paid such tenant improvement costs or leasing
commissions, then Seller shall credit Buyer with an amount equal to the
unpaid amounts with respect thereto.
(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. 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. Any
and all reprorations must be determined, settled and paid-in-full no
later than December 15, 1996.
6. CONDEMNATION OR DESTRUCTION OF PROPERTY. In the event that,
after the date hereof but prior to the Closing Date, either any portion
of the Property is taken pursuant to eminent domain proceedings or any
of the improvements on the Property are damaged or destroyed by any
casualty, Seller shall have no obligation to repair or replace any such
damage or destruction. Seller shall, upon consummation of the
transaction herein provided, assign to Buyer all claims of Seller
respecting any condemnation or casualty insurance coverage, as
applicable, and all condemnation proceeds or proceeds from any such
casualty insurance received by Seller on account of any casualty (the
damage from which shall not have been repaired by Seller prior to the
Closing Date), as applicable. In connection with any assignment of
insurance proceeds, Seller shall also pay any applicable deductible
under Seller's insurance (provided, however, Seller shall not be
obligated to pay more than $100,000 in connection therewith). In the
event the condemnation award or the cost of repair of damage to the
Property on account of a casualty, as applicable, shall exceed $100,000,
Buyer may, at its option, terminate this Agreement by notice to Seller,
given on or before the Closing Date.
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 Buyer examined,
reviewed and inspected all matters which in Buyer's judgment bear upon
the Property and its value and suitability for Buyer's purposes. Except
as to matters specifically set forth in 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.
(2) LIMITED REPRESENTATIONS AND WARRANTIES OF SELLER. Subject
to the provisions of paragraph 7A(1) above, Seller hereby represents and
warrants that, except as set forth in Exhibit "H" 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 the present actual knowledge of Xxxxxx Xxxxxxx (after having the
following representations and warranties reviewed by Xxxxxx Xxxxxx, the
Property Manager and leasing coordinator, who is employed by Seller's
third party property manager):
(a) RENT ROLL. Attached as Exhibit "J" and made a part hereof
is a true, complete and accurate list, as of the date thereof, of all
tenant leases respecting the Property, and Seller has not received any
written notice of a material default under any of such tenant leases
that remains uncured.
(b) LITIGATION. There is no pending action, litigation,
condemnation or other proceeding against the Property or against Seller
with respect to the Property.
(c) COMPLIANCE. Seller has received no written notice from any
governmental authority having jurisdiction over the Property to the
effect that the Property is not in compliance with applicable laws and
ordinances.
(d) SERVICE AGREEMENTS. Other than those which are cancelable
on 30 days' notice, Seller has not entered into any service agreements
or contracts ("SERVICE AGREEMENTS") or other agreements (other than as
set forth in this Agreement) relating to the Property which will be in
force on the Closing Date, except as described in Exhibit "K" attached
hereto, and Seller has not received any written notice of any material
default thereunder that remains uncured.
(e) DUE AUTHORITY. This Agreement and all agreements,
instruments and documents herein provided to be executed or to be caused
to be executed by Seller are and on the Closing Date will be duly
authorized, executed and delivered by and are binding upon Seller.
Seller is a limited partnership, duly organized, validly existing, and
in good standing under the laws of the State of Washington, 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 "L" attached hereto and made a part hereof (the
"ENVIRONMENTAL REPORTS"), Seller has received no written notice, and has
no actual knowledge, 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, or that the Property
is in violation of any "Environmental Laws". The term "ENVIRONMENTAL
LAWS" means each and every requirement of applicable federal, state and
local environmental laws, including but not limited to, the Resource
Conservation and Recovery Act, 42 U.S.C. 6901 et seq.; the federal Clean
Air Act, 42 U.S.C. 7401 et seq.; the federal Clean Water Act, 33 U.S.C.
1251 et seq.; the Toxic Substances Control Act, 15 U.S.C. 2601 et seq.;
the Comprehensive Environmental Response, Compensation and Liability
Act, 42. U.S.C. 9601 et seq.; and all regulations promulgated thereunder
as well as any applicable federal, state and local laws, ordinances,
regulations, and common laws relating to the industrial hygiene,
environmental protection or the use, analysis, generation, manufacture,
storage, presence, disposal or transportation of any oil, petroleum
products, flammable explosives, asbestos, urea formaldehyde,
polychlorinated biphenyls, radioactive materials or waste, or other
hazardous, toxic, contaminated or polluting materials, substances or
wastes, including without limitation any "hazardous substances,"
"hazardous materials" or "toxic substances" under any such laws,
ordinances or regulations (collectively, "HAZARDOUS MATERIALS").
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 New York corporation, duly organized and validly existing, and in
good standing under the laws of the State of New York, 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 October
15, 1997, after 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 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 expiration of the Due Diligence Period (unless Buyer shall have
theretofore delivered a Termination Notice hereunder), Seller shall not
enter into any new leases or material modifications of existing leases
thereafter without the consent of Buyer (which consent will not be
unreasonably withheld or materially delayed). In no event shall Seller
have any obligation to enter into any new lease or modify any existing
lease unless Buyer shall agree to pay or reimburse Seller on the Closing
Date for all tenant improvement costs and leasing commissions incurred
by Seller under or in connection therewith (Buyer's agreement to pay or
reimburse for such amounts not to be unreasonably withheld).
8. INDEMNIFICATION.
A. BY BUYER. Buyer shall hold harmless, indemnify and defend
Seller from and against: (1) any and all third party claims for Buyer's
torts or breaches of leases or contracts related to the Property and
occurring on or after the Closing Date, (2) any and all loss, damage or
third party claims in any way arising from Buyer's inspections or
examinations of the Property prior to the Closing Date, as more
particularly set forth in paragraph 4B hereof; and (3) all costs and
expenses, including reasonable attorney's fees, incurred by Seller as a
result of the foregoing.
B. BY SELLER. Seller shall hold harmless, indemnify and defend
Buyer from and against: (1) any and all third party claims for Seller's
torts or breaches of leases or contracts related to the Property and
occurring prior to the Closing Date; and (2) all costs and expenses,
including reasonable attorney's fees, incurred by the Buyer as a result
of such claims. The foregoing indemnity shall not cover any matters
relating to title or marketability of the Property (Buyer relying on the
coverage provided by the Owner's Policy as to such matters).
C. GENERALLY. Each indemnification under this Agreement shall
be subject to the following provisions: The indemnitee shall notify
indemnitor of any such claim against indemnitee within 30 days after it
has notice of such claim, but failure to notify indemnitor shall in no
case prejudice the rights of indemnitee under this Agreement unless
indemnitor shall be prejudiced by such failure and then only to the
extent of such prejudice. Should indemnitor fail to discharge or
undertake to defend indemnitee against such liability within 10 days
after the indemnitee gives the indemnitor written notice of the same,
then indemnitee may settle such liability, and indemnitor's liability to
indemnitee shall be conclusively established by such settlement, the
amount of such liability to include both the settlement consideration
and the reasonable costs and expenses, including attorneys' fees,
incurred by indemnitee in effecting such settlement.
9. DISPOSITION OF DEPOSITS. 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, AND BUYER SHALL NOT HAVE
DEFAULTED UNDER THIS AGREEMENT, THEN THE ESCROW DEPOSIT SHALL BE
RETURNED TO BUYER, AND NEITHER PARTY SHALL HAVE ANY FURTHER
OBLIGATION OR LIABILITY TO THE OTHER; PROVIDED, HOWEVER, IF THE
TRANSACTIONS HEREUNDER SHALL FAIL TO CLOSE SOLELY BY REASON OF
SELLER'S DEFAULT, AND BUYER SHALL HAVE FULLY PERFORMED ITS
OBLIGATIONS HEREUNDER AND SHALL BE READY, WILLING AND ABLE
TO CLOSE, THEN BUYER SHALL BE ENTITLED TO SPECIFICALLY ENFORCE THIS
AGREEMENT (BUT NO OTHER ACTION, FOR DAMAGES OR OTHERWISE, SHALL BE
PERMITTED). IN THE EVENT THE TRANSACTION HEREIN PROVIDED SHALL NOT
CLOSE FOR ANY REASON OTHER THAN THE FAILURE OF SATISFACTION OF THE
CONDITIONS DESCRIBED IN PARAGRAPH 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 10I HEREOF.
-------------------- --------------------
Seller's Initials Buyer's Initials
10. MISCELLANEOUS.
A. BROKERS.
(1) Except as provided in subparagraph (2) below, Seller
represents and warrants to Buyer, and Buyer represents and warrants to
Seller, that no broker or finder has been engaged by it, respectively,
in connection with any of the transactions contemplated by this
Agreement or to its knowledge is in any way connected with any of such
transactions. In the event of a claim for broker's or finder's fee or
commissions in connection herewith, then Seller shall indemnify and
defend Buyer from the same if it shall be based upon any statement or
agreement alleged to have been made by Seller, and Buyer shall indemnify
and defend Seller from the same if it shall be based upon any statement
or agreement alleged to have been made by Buyer. The indemnification
obligations under this paragraph 10A(1) shall survive the closing of the
transactions hereunder or the earlier termination of this Agreement.
(2) In addition, if and only if the sale contemplated herein
closes, Seller agrees to pay a brokerage commission to Xxxxxxx Xxxxx,
LLC, located at Three First Xxxxxxxx Xxxxx, Xxxxxxx, Xxxxxxxx 00000,
Attention: Xx. Xxxxxxx X. Xxxxxxx ("BROKER"), pursuant to a separate
written agreement between Seller and Broker.
B. LIMITATION OF LIABILITY.
(1) Notwithstanding anything to the contrary contained
herein, if the closing of the transactions hereunder shall have occurred
(and Buyer shall not have waived, relinquished or released any
applicable rights in further limitation), the aggregate liability of
Seller arising pursuant to or in connection with the representations,
warranties, indemnifications, covenants or other obligations (whether
express or implied) of Seller under this Agreement (or any document
executed or delivered in connection herewith) shall not exceed $800,000.
(2) No constituent partner in or agent of Seller, nor any
advisor, trustee, director, officer, employee, beneficiary, shareholder,
participant, representative or agent of any entity that is or becomes a
constituent partner in Seller (including, but not limited to, JMB Income
Properties, Ltd.-IX, JMB Realty Corporation and the individuals listed
in or referred to in paragraph 7A) 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).
(3) Notwithstanding the foregoing, in the event that
Seller, its general partner, JMB Income Properties, Ltd.-IX, or its or
their successor-in-interest, shall fail to maintain reserves of at least
$800,000 during the period ending on October 15, 1997, then during such
period, Buyer may look to the assets of JMB Realty Corporation, as the
general partner of the general partner of Seller, for the payment of any
claim against Seller; provided, however, the aggregate liability of
JMB Realty Corporation hereunder shall be limited to the amount by which
$800,000 exceeds the amount actually reserved by Seller for such period
as aforesaid.
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 Washington.
G. SUCCESSORS AND ASSIGNS. Buyer may not assign or transfer
its rights or obligations under this Agreement without the prior written
consent of Seller (in which event such transferee shall assume in
writing all of the transferor's obligations hereunder, but such
transferor shall not be released from its obligations hereunder).
Notwithstanding the foregoing, Buyer may assign its interest in this
Agreement in conjunction with the closing of the transactions under this
Agreement to a limited partnership or limited liability company in which
Buyer or an affiliate of Buyer (i.e., an entity controlling, controlled
by or under common control with Buyer) is the managing general partner
or manager; provided, however, (i) Buyer shall notify Seller of its
intention to so assign not less than five (5) business days prior to the
Closing Date, and (ii) such assignment shall be effective only on the
Closing Date, and shall be subject to full and complete performance of
all obligations of Buyer under this Agreement. No consent given by
Seller to any transfer or assignment of Buyer's rights or obligations
hereunder shall be construed as a consent to any other transfer or
assignment of Buyer's rights or obligations hereunder. No transfer or
assignment in violation of the provisions hereof shall be valid or
enforceable. Subject to the foregoing, this Agreement and the terms and
provisions hereof shall inure to the benefit of and be binding upon the
successors and assigns of the parties.
H. NOTICES. Any notice which a party is required or may desire
to give the other shall be in writing and shall be sent by personal
delivery or by mail (either [i] by United States registered or certified
mail, return receipt requested, postage prepaid, or [ii] by Federal
Express or similar generally recognized overnight carrier regularly
providing proof of delivery), addressed as follows (subject to the right
of a party to designate a different address for itself by notice
similarly given):
TO BUYER:
Devon Properties, Inc.
0 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xx. Xxxxxx X. Xxxxxxx, Xx.
WITH COPY TO:
Fulbright & Xxxxxxxx
0000 Xxxx Xxxxxx
Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attention: Xxxxx XxXxxxxxx, Esq.
TO SELLER:
Plaza/Seattle Limited Partnership
c/o JMB Realty Corporation
000 Xxxxx Xxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xx. Xxxxxx Xxxxxxx
WITH COPY TO:
Pircher, Xxxxxxx & Xxxxx
1999 Avenue of the Stars
Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Real Estate Notices (GML/SAR)
WITH COPY TO:
Xxxxxxx Xxxxx, LLC
Three First Xxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xx. Xxxxxxx Xxxxxxx
Any notice so given by mail shall be deemed to have been given as of the
date of delivery (whether accepted or refused) established by U.S. Post
Office return receipt or the overnight carrier's proof of delivery, as
the case may be. Any such notice not so given shall be deemed given
upon receipt of the same by the party to whom the same is to be given.
I. LEGAL COSTS. The parties hereto agree that they shall pay
directly any and all legal costs which they have incurred on their own
behalf in the preparation of this Agreement, all deeds and other
agreements pertaining to this transaction and that such legal costs
shall not be part of the closing costs. In addition, if either Buyer or
Seller brings any suit or other proceeding with respect to the subject
matter or the enforcement of this Agreement, the prevailing party (as
determined by the court, agency or other authority before which such
suit or proceeding is commenced), in addition to such other relief as
may be awarded, shall be entitled to recover reasonable attorneys' fees,
expenses and costs of investigation actually incurred. The foregoing
includes, but is not limited to, attorneys' fees, expenses and costs of
investigation (including, without limitation, those incurred in
appellate proceedings), costs incurred in establishing the right to
indemnification, or in any action or participation in, or in connection
with, any case or proceeding under Chapter 7, 11 or 13 of the Bankruptcy
Code (11 United States Code Sections 101 et seq.), or any successor
statutes.
J. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of
which shall constitute one and the same document.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date first above written.
PLAZA/SEATTLE LIMITED PARTNERSHIP,
a Washington limited partnership
By: JMB INCOME PROPERTIES, LTD.-IX,
an Illinois limited partnership,
General Partner
By: JMB REALTY CORPORATION,
a Delaware corporation,
Managing General Partner
By:______________________
Name:____________________
Title: __________________
"Seller"
DEVON PROPERTIES, INC.,
a New York corporation
By: _______________________________
Name: _____________________________
Title:_____________________________
"Buyer"
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.
Date: ___________, 1996. TRANSNATION TITLE INSURANCE COMPANY,
an Arizona corporation
By: ___________________________________
Name: _____________________________
Title: ____________________________
"Escrow Holder"
EXHIBIT LIST
"A" - PROPERTY DESCRIPTION
"B" - LIST OF PERSONAL PROPERTY
"C" - LIST OF REQUIRED TENANTS
"D" - FORM OF TENANT ESTOPPEL CERTIFICATE
"E" - FORM OF SELLER'S CERTIFICATE RE: ESTOPPELS
"F" - FORM OF DEED
"G" - FORM OF ASSIGNMENT AND ASSUMPTION AGREEMENT
"H" - EXCEPTIONS TO SELLER'S REPRESENTATIONS
AND WARRANTIES
"I" - TENANT IMPROVEMENT COSTS AND LEASING COMMISSIONS
TO BE PAID BY SELLER
"J" - RENT ROLL
"K" - LIST OF SERVICE AGREEMENTS
"L" - LIST OF ENVIRONMENTAL REPORTS
Recording Requested By and |
After Recording Mail To: |
|
Boxwood Properties |
Associates, L.P. |
c/o Devon Properties, Inc. |
0 Xxxx 00xx Xxxxxx |
Xxx Xxxx, Xxx Xxxx 00000 |
Attention: Xxxxxx X. Xxxxxxx, Xx. |
----------------------------------------------------------------------
Parcel Number: 0440-069700-0235-05
BARGAIN AND SALE DEED
PLAZA/SEATTLE LIMITED PARTNERSHIP, a Washington limited
partnership ("GRANTOR"), for and in consideration of Ten and No/100 Dollars
($10.00) in hand paid, bargains, sells and conveys to BOXWOOD PROPERTIES
ASSOCIATES, L.P., a Delaware limited partnership ("GRANTEE"), all that
certain real property (the "PROPERTY") situated in the City of Seattle,
County of King, State of Washington, and more particularly described in
Exhibit "A" attached hereto and incorporated herein by reference. Grantor,
for itself and its successors in interest, does, by these presents,
expressly limit the covenants of this deed to those herein expressed,
and excludes all covenants arising or to arise by statutory or other
implication, and does hereby covenant that against all persons whomsoever
lawfully claiming or to claim by, through or under said Grantor and not
otherwise, Grantor shall forever warrant and defend the said described
real estate.
The Property is conveyed to Grantee subject to: (a) all taxes
and assessments, both general and special, not now due and payable;
(b) building and zoning ordinances, laws, regulations and restrictions
by municipal or other governmental authority; (c) any and all leases,
easements, rights-of-way, encumbrances, conditions, covenants, restrictions,
reservations and exceptions of record; (d) all matters, including, but not
limited to, road, highway, pipeline,
railroad and utility easements which would be disclosed by a survey and
inspection of the Property; and (e) all rights of tenants in possession.
IN WITNESS WHEREOF, the undersigned has executed this Bargain
and Sale Deed on October __, 1996.
PLAZA/SEATTLE LIMITED PARTNERSHIP,
a Washington limited partnership
By: JMB INCOME PROPERTIES, LTD.-IX,
an Illinois limited partnership
General Partner
By: JMB REALTY CORPORATION,
a Delaware corporation
Managing General Partner
By: ____________________
Name: __________________
Title: _________________
STATE OF ILLINOIS )
) ss
COUNTY OF XXXX )
This instrument was acknowledged before me on this the ____ day of
October, 1996, by __________________, ___________ of JMB Realty Corporation,
the general partner of JMB Income Properties, Ltd.-IX, the general partner
of Plaza/Seattle Limited Partnership, on behalf of such corporation and
partnerships.
______________________
Notary Public in and for the State of Illinois
_____________________________
Printed Name of Notary Public
My Commission Expires: ________
EXHIBIT "A"
LEGAL DESCRIPTION
All that certain land situated in the State of Washington, County of King,
and the City of Seattle, and described as follows:
Xxxx 0, 00, 00 xxx 00 xx Xxxxx U of Xxxx'x Sixth Addition to the City of
Seattle, as per plat recorded in Volume 2 of Plats, Page 20, Records of
King County;
Except the northeasterly 12 feet condemned in King County Superior Court
Cause No. 193437 for 0xx Xxxxxx as provided by Ordinance No. 50890.
XXXX OF SALE, ASSIGNMENT AND ASSUMPTION AGREEMENT
(XXXXXXXXX PLAZA; SEATTLE, WASHINGTON)
FOR VALUABLE CONSIDERATION, receipt of which is hereby acknowledged,
the undersigned, PLAZA/SEATTLE LIMITED PARTNERSHIP, a Washington limited
partnership ("SELLER"), hereby sells, transfers, assigns and conveys to
BOXWOOD PROPERTIES ASSOCIATES, L.P., a Delaware limited partnership
("BUYER"), the following:
1. PERSONAL PROPERTY. All right, title and interest of Seller
in and to those items of tangible personal property described in Exhibit "A"
attached hereto and made a part hereof (the "PERSONAL PROPERTY"), located
upon, and used in the operation of, that certain office tower commonly
known as "Xxxxxxxxx Plaza", located in the City of Seattle, County of
King, State of Washington (the "PROPERTY").
2. LEASES. All right, title and interest of Seller in and to
all leases (the "LEASES") relating to the Property and described in
Exhibit "B" attached.
3. SERVICE AGREEMENTS. All right, title and interest of
Seller in and to all service agreements (the "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 "Xxxxxxxxx Plaza",
and all contract rights, agreements, tenant lists, governmental permits,
licenses and approvals, advertising material and telephone exchange
numbers (collectively, the "INTANGIBLE PROPERTY") directly relating
to the Property.
This Xxxx of Sale, Assignment and Assumption is given pursuant to
that certain agreement (the "AGREEMENT") dated as of October _, 1996,
between Seller and Devon Properties, Inc. (whose interest was assigned
to Buyer), providing for, among other things, the assignment of the
Personal Property, Tenant Leases, Service Agreements and Intangible
Property. The covenants, agreements, and limitations (including,
but not limited to, the limitations of liability provided in
paragraph 10B of the Agreement) provided in the Agreement with
respect to the property conveyed hereunder are hereby incorporated
herein by this reference as if herein set out in full and shall inure
to the benefit of and shall be binding upon Seller and Buyer, and their
respective successors and assigns. Said property is conveyed "as is"
without warranty or representation, except as expressly provided in
(and subject to the limitations of) the Agreement.
DATED: As of October __, 1996.
SELLER:
PLAZA/SEATTLE LIMITED PARTNERSHIP,
a Washington limited partnership
By: JMB INCOME PROPERTIES, LTD.-IX,
an Illinois limited partnership,
General Partner
By: JMB REALTY CORPORATION,
a Delaware corporation,
Managing General Partner
By: __________________
Name: ___________________
Title: __________________
ASSUMPTION BY BUYER
As of this ____ day of October, 1996, Buyer hereby accepts the
foregoing assignment of Leases, Service Agreements and other contracts,
agreements assigned hereby and agrees to assume and discharge, in
accordance with the terms thereof, all of the burdens and obligations
of Seller thereunder, to the extent the same arise from and after the
date hereof.
BUYER:
BOXWOOD PROPERTIES ASSOCIATES, L.P.,
a Delaware limited partnership
By: BOXWOOD ENTERPRISES, INC.
a Delaware corporation,
General Partner
By: ______________________
Name: ______________________
Title: _____________________
EXHIBIT "A"
LIST OF PERSONAL PROPERTY
EXHIBIT "B"
LIST OF LEASES
EXHIBIT "C"
LIST OF SERVICE AGREEMENTS
