EXHIBIT 10.1
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PURCHASE AGREEMENT AND JOINT ESCROW INSTRUCTIONS
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(Fountain Valley Industrial Park; Fountain Valley, California)
THIS AGREEMENT ("Agreement") is made and entered into as of
November 9, 1998, by and between JMB INCOME PROPERTIES, LTD.-XIII, an
Illinois limited partnership (hereinafter called "Seller"), and TA REALTY
CORP., a Massachusetts corporation (hereinafter called "Buyer").
R E C I T A L S
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A. Seller is the owner of those certain industrial buildings
generally located at the southwest intersection of Xxxxxxx Avenue and
Euclid Street (containing approximately 370,890 net rentable square feet),
in the City of Fountain Valley, County of Orange, State of California,
consisting of industrial buildings (collectively, the "Premises"), it being
understood and agreed that the foregoing square footage numbers are
contained herein for informational purposes only.
B. Buyer desires to purchase, and Seller desires to sell, 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. On the terms and conditions hereinafter set
forth, 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 of the Premises and other improvements owned
by Seller on the Land (the "Improvements") together with all of Seller's
right, title and interest in and to the following tangible and intangible
property (the "Personalty"):
(i) all furniture, fixtures, equipment and other
personal property described in Exhibit "B" attached hereto and made a part
hereof;
(ii) to the extent they may be transferred under
applicable law, all licenses, permits, approvals, certificates of occupancy
and other approvals necessary for the current use and operation of the
"Property" (as hereinafter defined), including, without limitation, sewer
rights and permits, presently issued in connection with the operation of
all or any part of the Property or necessary to operate the Property as it
is presently being operated;
(iii) all warranties, if any, issued to Seller by any
manufacturers and contractors in connection with construction or
installation of equipment included as part of the Property;
(iv) all transferable telephone exchange numbers and
development rights related to the Property;
(v) to the extent assignable and to be assigned
hereunder to Buyer at Closing, all service, supply, security, management
and maintenance contracts (if any) held by Seller with respect to the
Property and its mechanical equipment, elevators and other elements;
(vi) all leases, subleases, franchises, licenses,
occupancy agreements, owner participation agreements or other agreements,
demising space in or otherwise similarly affecting or relating to the
Improvements or Land, together with any and all amendments, modifications
or supplements thereto (collectively "Leases") and all prepaid rent,
refundable tenant security deposits and other refundable deposits, if any,
thereunder (together with interest thereon, if any, to the extent) and
guaranties thereof; and
(vii) all plans, drawings, specifications, tradenames,
surveys, renderings and other technical descriptions that relate to the
Land or the Improvements. The Land, the Improvements and the Personalty
are collectively referred to herein as the "Property".
2. PURCHASE PRICE. The purchase price (the "Purchase Price") for
the Property shall be the sum of Twenty One Million Six Hundred Twenty Five
Thousand Dollars ($21,625,000) (which amount, as adjusted pursuant to the
terms hereof, shall be paid in the manner hereinafter set forth).
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 after execution
hereof by Buyer and Seller, Buyer shall deliver $250,000 (which deposit,
together with all interest thereon earned while such deposit is held by
"Escrow Holder", as hereinafter defined, is herein called the "Escrow
Deposit") to Chicago Title Insurance Company, at its offices at 00000 Xxx
Xxxxxx, Xxxxx 000, Xxxxxx, Xxxxxxxxxx 00000, Attention: Xxxxxx Xxxxxxx
(which company, in its capacity as escrow holder hereunder, is called
"Escrow Holder"). The Escrow Deposit shall be delivered to Escrow Holder
by wire transfer of immediately available federal funds or by check
evidencing good funds. The amounts deposited hereunder 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 that 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 money center
banking institution reasonably acceptable to Seller and Buyer, or (iii)
such other manner as may be reasonably agreed to by Seller and Buyer. The
Escrow Deposit shall be disbursed by Escrow Holder only as provided in this
Agreement.
B. CLOSING PAYMENT. The balance of the Purchase Price, as
adjusted by the application of the Escrow Deposit and by the prorations,
debits and credits specified herein, shall be paid by wire transfer of
immediately available federal funds 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
TITLE MATTERS.
(1) TITLE REPORT. Seller has ordered (and upon receipt shall
deliver to Buyer) a copy of a preliminary title report ("Preliminary Title
Report") covering the Property from Chicago Title Insurance Company (which
company, in its capacity as title insurer hereunder, is herein called the
"Title Company"), together with copies of all exceptions to title
referenced therein. In addition, Seller has delivered to Buyer (or will
deliver) to Buyer a copy of an update of a certain survey of the Property
prepared by Xxxxxx and Associates (collectively the "Survey"), which Survey
shall be recertified to Buyer. If Buyer shall fail to deliver written
notice ("Title Objection Notice") setting forth those title and survey
matters to which Buyer objects on or before the end of the "Due Diligence
Period" (as hereinafter defined), Buyer shall be deemed to have approved
the exceptions to title shown on the Preliminary Title Report and the
matters disclosed on the Survey. Approval by Buyer of any additional
exceptions to title or survey matters disclosed subsequent to the date of
the Preliminary Title Report shall be a condition precedent to Buyer's
obligation to purchase the Property. Unless Buyer gives written notice
that it disapproves any such additional exceptions to title or survey
matters, stating the exceptions so disapproved, on or before the sooner to
occur of five (5) business days after receipt of written notice thereof or
the Closing Date, Buyer shall be deemed to have approved said additional
title exceptions 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 disapproves (to the extent Buyer is permitted hereunder
to so disapprove) to be removed at no cost or expense to Buyer (Seller
having the right but not the obligation to do so), the obligation of Seller
to sell, and Buyer to buy, the Property as herein provided shall terminate
(and Seller and Buyer shall have no further obligations in connection
herewith), whereupon the Escrow Deposit shall be returned to Buyer. Buyer
shall have the option to waive the condition precedent set forth in this
paragraph 4A(1) by notice to Seller. In the event of such waiver, such
condition shall be deemed satisfied. All matters set forth on the
Preliminary Title Report which are not timely objected to by Buyer in
accordance with this paragraph 4A(1), 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 cured to Buyer's satisfaction.
Notwithstanding the foregoing or any other provision of this Agreement to
the contrary, Seller shall be obligated to remove any deeds of trust
covering the Property which secure any financing obtained by Seller, and
shall either remove or cause the Title Company to affirmatively insure over
(i) any mechanic's or materialmen's liens against the Property as a result
of work done by or on behalf of Seller, (ii) any tax or judgment liens
against Seller, and (iii) adverse matters intentionally created by Seller
after the date of this Agreement.
(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 printed exceptions which appear in the standard ALTA
owner's policy of title insurance issued by Title Company; and
(c) The Permitted Exceptions.
It shall be a condition precedent to Buyer's obligation to purchase the
Property that Title Company issue to Buyer on the Closing Date a standard
form CLTA owner's title insurance policy ("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 and reinsurance as Buyer shall require (and the Title Company
shall agree to issue) prior to the expiration of the Due Diligence Period.
B. DUE DILIGENCE REVIEWS. Buyer hereby acknowledges that Seller
has caused certain environmental testing to be conducted at the Property as
more particularly set forth in Exhibit "C" attached hereto and made a part
hereof (collectively, the "Scope of Work"), and that prior to the date
hereof Seller has delivered to Buyer, without any representation or
warranty whatsoever, a copy of the final report of such Scope of Work
prepared by Seller's consultants (the "Environmental Report"). Buyer has
reviewed the Environmental Report and has determined that Buyer will
proceed with Buyer's due diligence examinations, reviews and inspections of
all remaining matters pertaining to the purchase of the Property.
Accordingly, Buyer shall have until 5:00 p.m. (Central time) on
November 25, 1998 (the "Due Diligence Period"), within which to complete
all of Buyer's other due diligence examinations, reviews and inspections of
all remaining matters pertaining to the purchase of the Property, including
all leases, service contracts, and all physical and compliance matters and
conditions respecting the Property, but excluding any environmental matters
(all such matters having been approved by Buyer prior to Buyer's execution
of this Agreement). During the Due Diligence Period, Seller shall provide
Buyer with reasonable access to the Property upon reasonable advance notice
and either has or shall hereafter make available to Buyer, to the extent in
Seller's possession or control, such leases, service contracts and other
contracts, agreements, licenses, permits and certificates of occupancy,
plans and specifications, standard form lease, and other documents and
agreements as reasonably agreed upon by Seller and Buyer, but Seller shall
not be required to provide or make available to Buyer any other
environmental reports with respect to the Property. Buyer shall promptly
commence, and shall diligently and in good faith pursue, its due diligence
review hereunder. Buyer shall at all times conduct its due diligence
review, inspections and examinations in a manner so as to not cause damage,
loss, cost or expense to Seller or the Property and so as to not
unreasonably 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, including
reasonable attorneys' fees (the foregoing obligation surviving any
termination of this Agreement); provided, however, the foregoing shall not
apply to matters which were caused not by Buyer or its agents but by the
negligence or misconduct of Seller. In no event shall Buyer make any
environmental testing or intrusive physical testing (structural or
otherwise) at the Property without Seller's prior written consent (and
shall in all events promptly return the Property to its prior condition and
repair thereafter). Buyer may contact any tenant of the Property upon
prior notification to Seller (any such contact to be subject to reasonable
requirements imposed by Seller). Without limitation thereon, Seller shall
have the right, at its option, to cause a representative of Seller to be
present at all tenant interviews, as well as other inspections, reviews and
examinations conducted hereunder. In the event this Agreement is
terminated prior to closing hereunder, Buyer shall promptly deliver to
Seller, at Seller's written request, true, accurate and complete copies of
any written reports relating to the Property prepared for or on behalf of
Buyer by any third party; provided, however, that neither Buyer nor any
such third party make any representations or warranties regarding such
reports. In addition, in the event of termination hereunder, Buyer shall
return all documents and other materials furnished to or on behalf of Buyer
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; provided, however, that Buyer shall be
entitled to disclose such information to Buyer's attorneys, accountants,
advisors, consultants and prospective debt and equity financing sources who
reasonably need to be informed in connection with Buyer's determinations
hereunder (and who shall, in turn, be instructed to keep such information
confidential). If, on or before the expiration of the Due Diligence
Period, 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 "Due Diligence Approval Notice"), 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, 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 "Due Diligence 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
Buyer shall fail to have delivered the Due Diligence Approval Notice to
Seller on or before the expiration of the Due Diligence Period, 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"), dated not more than thirty (30) days
prior to the Closing Date, from a sufficient number of tenants at the
Property so that Tenant Estoppel Certificates shall be received with
respect to not less than 90% 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 "D" attached hereto and made a part hereof (with
limitations to a tenant's knowledge or actual knowledge in place of to the
best of tenant's knowledge, where applicable, being deemed acceptable
revisions) or in the form, if any, prescribed in the applicable tenant
lease (with all blanks filled in and the information contained therein
consistent with the terms of the Leases). 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); provided, however, if
the condition specified in this paragraph 4C is satisfied but not all
tenants shall have delivered Tenant Estoppel Certificates, Seller shall
deliver a certificate ("Seller Estoppel Certificate") with respect to each
lease for which no Tenant Estoppel Certificate is received. The Seller
Estoppel Certificate shall be in substantially the same form as the Tenant
Estoppel Certificate attached as Exhibit "D" hereto, with appropriate
changes to reflect that (i) such certificate is being delivered by Seller
rather than the tenant, (ii) paragraphs (c), (d), (f), (h) are limited to
Seller's knowledge (as defined in this Agreement), and paragraph (o) will
be deleted. If on or before the Closing Date, the conditions set forth
herein 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).
D. PERFORMANCE BY SELLER; POSSESSION. The performance and
observance, in all material respects, by Seller of all covenants and
agreements of this Agreement to be performed or observed by Seller prior to
or on the Closing Date shall be a condition precedent to Buyer's obligation
to purchase the Property. In addition, in the event that on the Closing
Date (i) the "Seller Closing Certificate" (as hereinafter defined) shall
disclose any material adverse changes in the representations and warranties
of Seller contained in paragraph 7A below which are not otherwise permitted
or contemplated by the terms of this Agreement, or (ii) the Property is not
in substantially the same physical condition as it is at the end of the Due
Diligence Period, reasonable wear and tear and, subject to paragraph 6
hereof, casualty excepted, then Buyer shall have the right to terminate
this Agreement, in which event the Escrow Deposit shall be immediately
returned to Buyer. Further, it shall be a condition to Buyer's obligations
to close that, on the Closing Date, Buyer shall receive actual possession
of the Property free of all occupancy rights other than those specified
under the Leases or the Permitted Exceptions. Buyer shall have the option
to waive the condition precedent set forth in this paragraph 4D by written
notice to Seller. In the event of such waiver, such condition shall be
deemed satisfied.
E. PERFORMANCE BY BUYER. The performance and observance, in all
material respects, by Buyer of all covenants and agreements of this
Agreement to be performed or observed by it prior to or on the Closing Date
shall be a condition precedent to Seller's obligation to sell the Property.
In addition, in the event that the "Buyer Closing Certificate" (as
hereinafter defined) shall disclose any material adverse changes in the
representations and warranties of Buyer contained in paragraph 7B below
which are not permitted or contemplated by the terms of this Agreement,
then Seller shall have the right to terminate this Agreement. Seller shall
have the option to waive the condition precedent set forth in this
paragraph 4E by written notice to Buyer. In the event of such waiver, such
condition shall be deemed satisfied.
5. CLOSING PROCEDURE TRANSACTIONS. The sale and purchase herein
provided shall be consummated on the Closing Date through escrow pursuant
to the "Escrow Instructions" (as hereinafter defined). As used herein,
"Closing Date" means Friday, December 4, 1998, or such earlier date as may
be agreed upon by Buyer and Seller in writing.
A. ESCROW. By the Closing Date, the parties shall deliver to
Title Company, at its office located at 00000 Xxx Xxxxxx, Xxxxx 000,
Xxxxxx, Xxxxxxxxxx, the following: (1) by Seller, a duly executed and
acknowledged original grant deed ("Deed") in favor of Buyer, in the form of
Exhibit "E" attached hereto and made a part hereof, (2) by Buyer, the
Closing Payment in immediately available federal funds, and (3) by each of
the parties, the remaining closing documents provided for in paragraph 5B
hereof. Such deliveries shall be made pursuant to either joint or separate
escrow instructions ("Escrow Instructions") to be executed by 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,
the other closing documents provided for in paragraph 5B hereof, and the
commitment of the Title Company to issue the Owner's Policy in the form
specified in paragraph 4A(2) hereof.
B. DELIVERY TO PARTIES. Upon the satisfaction of the conditions
set forth in the Escrow Instructions, then on the Closing Date (1) the Deed
shall be delivered to Buyer by Title Company's depositing the same for
recordation, (2) the Closing Payment (and the Escrow Deposit) shall be
delivered to Seller and (3) the following items shall be delivered by the
Title Company as provided for in the Escrow Instructions:
(1) SELLER DELIVERIES. Seller shall deliver the following to Title
Company on or before the Closing Date (and, upon closing, Title Company
shall deliver the same to Buyer):
(a) A duly executed and acknowledged xxxx of sale, assignment and
assumption agreement ("Xxxx of Sale, Assignment and Assumption Agreement")
in the form of Exhibit "F" attached hereto and made a part hereof;
(b) A certificate of Seller ("Seller Closing Certificate")
reaffirming the representations and warranties contained in paragraph 7A
hereof to the Closing Date and noting any changes thereto, together with
any Seller Estoppel Certificate which may be required pursuant to
paragraph 4C hereof;
(c) Duly executed and acknowledged certificates regarding the "non-
foreign" status of Seller satisfying both federal and state law
requirements;
(d) A notice to the tenants ("Tenant Notice") signed by Seller
advising them of the sale in form reasonably satisfactory to Seller and
Buyer;
(e) To the extent in Seller's possession or control, originals of
all Leases, "Service Agreements" (as hereinafter defined), plans and
specifications, tenant files, invoices, xxxxxxxx and other similar books
and records necessary for the continued operation of the Property,
licenses, permits, certificates of occupancy, certificates of insurance
from any tenants, and keys tagged for identification, to the extent the
foregoing relate to the Property (such delivery being made by causing such
items to be retained at the Property);
(f) If requested by Buyer, an executed assignment of Seller's
rights under any of the Permitted Exceptions, to the extent such rights are
assignable, such assignment being in substantially the same form as the
Assignment and Assumption Agreement (and being herein called the
"Additional Assignment and Assumption Agreement");
(g) Evidence reasonably satisfactory to Buyer and Escrow Holder
respecting the due organization of Seller and the due authorization and
execution of this Agreement and the documents required to be delivered
hereunder;
(h) The originals of any Tenant Estoppel Certificates received by
Seller pursuant to paragraph 4C hereof; and
(i) 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 increase the costs to, or liability or
obligations of, Seller in a manner not otherwise provided for herein).
(2) BUYER DELIVERIES. Buyer shall deliver the following to Title
Company on or before the Closing Date (and, upon closing, Title Company
shall deliver the same to Seller):
(a) A duly executed and acknowledged Xxxx of Sale, Assignment and
Assumption Agreement;
(b) A certificate of Buyer ("Buyer Closing Certificate") updating
the representations and warranties contained in paragraph 7B hereof to the
Closing Date and noting any changes thereto;
(c) A Tenant Notice signed by Buyer;
(d) An executed Additional Assignment and Assumption Agreement, if
the same is executed by Seller;
(e) Evidence reasonably satisfactory to Seller and Escrow Holder
respecting the due organization of Buyer and the due authorization and
execution of this Agreement and the documents required to be delivered
hereunder; and
(f) Such additional documents as may be reasonably required by
Seller and Title Company in or to consummate the transactions hereunder
(provided the same do not increase the costs to, or liability or
obligations of, Buyer in a manner not otherwise provided for herein).
C. CLOSING COSTS. Seller shall pay the title insurance premiums
(at a rate not in excess of standard issue rates) attributable to standard
CLTA coverage respecting the Owner's Policy and the costs of the Survey.
Buyer shall pay (i) all title insurance premiums attributable to the
Owner's Policy in excess of standard CLTA coverage, as well as any costs
for any endorsements to the Owner's Policy, to the extent any of the
foregoing is requested by Buyer, (ii) all costs and expenses related to
Buyer's due diligence examinations, reviews and inspections, and (iii) all
recording fees or charges. Seller and Buyer shall each pay one-half of the
closing escrow charges. Seller and Buyer shall each pay its own attorney's
fees and expenses and its own 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 (with Buyer being allocated items
for the Closing Date itself):
(a) All real estate taxes and assessments on the Property and
Personal Property assessments for the current year. 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. In the event that 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 and
refundable security deposits. 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 were made
by tenants under the tenant leases and are not applied or forfeited prior
to the Closing Date) to Buyer on the Closing Date. If Seller is holding
any letters of credit in lieu of cash security deposits, then, at closing,
Seller shall either (i) assign such letters of credit to Buyer if the same
are assignable, or (ii) if not assignable, Seller shall reasonably
cooperate (at Buyer's expense) with Buyer to have such letters of credit
reissued to Buyer. Rents which are delinquent as of the Closing Date shall
not be prorated on the Closing Date (and Seller shall provide a schedule at
closing itemizing all such delinquent rentals). Buyer shall include such
delinquencies in its normal billing and shall use reasonable efforts to
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 (net of Seller's share of reasonable third
party costs of collection incurred by Buyer in connection therewith) shall
be applied toward the payment of any delinquent rents, with Seller's share
thereof, if any, 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 an action
against any tenant owing delinquent rents and any other amounts to Seller
to collect such amounts, together with damages and the like as a result
thereof (but in no event shall Seller have any right to institute eviction
proceedings with respect thereto). 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.
(c) All utility costs and other normal and customary operating
expenses.
(d) On or before the Closing Date, Seller shall pay or cause to be
paid (or there shall be escrowed for payment at closing) all leasing and
brokerage commissions which are payable with respect to Leases affecting
such Property executed prior to the date hereof, whether the same are due
on or prior to the Closing Date or payable in installments subsequent
thereto and including any portion thereof due upon any renewals of any such
Lease or options to lease additional space but only if such renewal or
additional space option commences prior to the date of this Agreement.
Buyer shall assume the payment of all leasing and brokerage commissions
which may hereafter become due with respect to (i) any renewals of any
Leases or options to lease additional space under any Leases if such
renewals or additional space options are exercised and commence or arise
after the date of this Agreement so long as Buyer has received copies of
all commission agreements for such renewals or additional space options
during the Due Diligence Period, and (ii) any Leases hereinafter executed
prior to the closing with Buyer's written consent.
(e) Seller shall receive a credit at Closing (the "Sales Tax
Credit") in lieu of the sales tax rebates from the City of Fountain Valley,
California with respect to the Property or the tenants of the Property for
the Fiscal Year 1998 and for that portion of Fiscal Year 1999 which occurs
prior to the Closing Date, including, without limitation, all sales tax
rebates with respect to Fry's. The Sales Tax Credit shall be an amount
equal to Eighty Nine Thousand Eight Hundred Sixty Three and 01/100 United
States Dollars ($89,863.01), which amount was calculated using the
following formula:
$82,000.00 for Fiscal Year 1998 [October 30, 1997 through and
including October 29, 1998] +
$7,863.01 for that portion of Fiscal Year 1999 which occurs prior to
the Closing Date [October 30, 1998 through (but not including) December 4,
1998 (($82,000.00 / 365 days) * 35 days)] = $89,863.01.
(2) CALCULATION. The prorations and payments shall be made on the
basis of a 365-day year and shall be set forth on 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. The obligations of Seller and Buyer under this paragraph 5D
shall survive the Closing until December 15, 1998, at which date all
reprorations shall be final and there shall be no further reproations made
after such date regardless of availability of information.
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, the
risk of any such loss shall be assumed by Seller, 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 (including rent loss insurance attributable to
post-closing periods), 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 hereunder, Seller shall credit Buyer with
an amount equal to the applicable deductible amount under Seller's
insurance; provided, however, if the amount of such deductible shall exceed
$100,000, Seller shall have the right to terminate this Agreement by notice
to Buyer given on or before the Closing Date (whereupon the Escrow Deposit
shall be returned to Buyer). If (i) the condemnation award or the cost of
repair of damage to the Property on account of a casualty, as applicable,
shall exceed $100,000 or (ii) regardless of the amount such casualty is
uninsured or underinsured, and Seller does not elect to credit Buyer with
an amount equal to the cost to repair such uninsured or underinsured
casualty (Seller having the right, but not the obligation, to do so), then
in either such event Buyer may, at its option, terminate this Agreement by
notice to Seller, given on or before the Closing Date and receive a refund
of the Escrow Deposit.
7. REPRESENTATIONS, WARRANTIES AND COVENANTS.
A. REPRESENTATIONS, WARRANTIES AND COVENANTS OF SELLER.
(1) GENERAL DISCLAIMER. Except as specifically set forth in this
Agreement below or in the documents delivered by Seller at closing pursuant
to paragraph 5B(1) hereof, 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 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 examine, review and inspect 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 this
Agreement or in the documents delivered by Seller at closing pursuant to
paragraph 5B(1) hereof, 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) REPRESENTATIONS AND WARRANTIES OF SELLER. Seller hereby
represents and warrants to Buyer that, except as set forth in Exhibit "G"
attached hereto and made a part hereof:
(a) 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 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 legal capacity and authority to
enter into this Agreement and consummate the transactions herein provided
without the consent or joinder of any other party (except as otherwise set
forth in this Agreement).
(b) NO BANKRUPTCY. Seller is not the subject of any bankruptcy,
receivership or insolvency proceeding.
(c) RENT ROLL. To Seller's knowledge, attached as Exhibit "H-1"
and made a part hereof is a true, complete and accurate rent roll, as of
the date thereof, with respect to all Leases respecting the Property
(including all amendments or modifications thereto). To Seller's
knowledge, neither Seller nor any tenant is in monetary default or material
non-monetary default under any of the Leases that remains uncured. Without
limitation thereon, to Seller's knowledge, Seller has completed all of
Seller's obligations under the Leases that are required to be performed
prior to the date hereof (including, with respect to all tenant improvement
work required to be constructed by Seller). To Seller's knowledge, except
as set forth in Exhibit "H-2", there are no brokerage agreements which
impose obligations to pay lease commissions under the Lease for periods
following the Closing Date. To Seller's knowledge, except as may be set
forth in Exhibit "H-1" or its applicable Lease, no tenant is entitled to
any rebate, concession, deduction or offset or has paid any rent or other
charge for a period of more than 30 days in advance.
(d) LITIGATION. There is no action, litigation, condemnation or
other proceeding pending or, to Seller's knowledge threatened in writing
against the Property or against Seller with respect to the Property.
(e) COMPLIANCE. To Seller's knowledge, Seller has received no
written notice from any governmental authority having jurisdiction over the
construction, use, occupancy or operation of the Property to the effect
that the Property is not in compliance with any applicable laws and
ordinances.
(f) SERVICE AGREEMENTS. To Seller's knowledge, there are no
service agreements or contracts ("Service Agreements") or other agreements
(other than as expressly set forth in this Agreement) relating to the
Property which will be in force on the Closing Date, except as described in
Exhibit "I" attached hereto and made a part hereof, and Seller is not in
monetary default or material non-monetary default thereunder that remains
uncured.
(g) OPERATING STATEMENTS. The operating statements for the
Property for the periods 1995, 1996, 1997 and year-to-date 1998
(preliminary) were prepared in the usual course of Seller's business.
(h) EMPLOYEES. Seller does not employ any employees at the
Property (any such employees being employed by Seller's third party
property manager).
(i) FOREIGN PERSON. Seller is not a foreign person within the
meaning of Section 1445(f) of the Internal Revenue Code.
(j) ENVIRONMENTAL MATTERS. To Seller's knowledge, the
Environmental Report and the reports described in Exhibit "J" attached
hereto and made a part hereof (collectively, the "Environmental Reports",
which Environmental Reports have been previously delivered to and reviewed
by Buyer) constitute all third party environmental reports in Seller's
possession or control, and to Seller's knowledge, except as set forth in
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" (as hereinafter defined) at,
upon, under or within the Property, in an amount which would, as of the
date hereof, give rise to an "Environmental Compliance Cost" (as
hereinafter defined) or would otherwise constitute a violation of any
statutory or judicial, federal, state or local environmental law or
regulation. The term "Hazardous Material" shall mean asbestos, petroleum
products, and any other hazardous waste or substance which has, as of the
date hereof, been determined to be hazardous or a pollutant by the U.S.
Environmental Protection Agency, the U.S. Department of Transportation, or
any instrumentality authorized to regulate substances in the environment
which has jurisdiction over the Property ("Environmental Agency"), which
substance causes the Property (or any part thereof) to be in material
violation of any applicable environmental laws; provided, however, that the
term "Hazardous Material" shall not include (x) motor oil and gasoline
contained in or discharged from vehicles not used primarily for the
transport of motor oil or gasoline, or (y) materials which area stored or
used in the ordinary course of a tenant's occupancy at (or the Company's,
or the Company's managing agents' operation of) the Property, and which are
stored, used, held, or disposed of in compliance with all applicable
environmental laws. The term "Environmental Compliance Cost" means any
reasonable out of pocket cost, fee or expense exceeding $2,500 and incurred
directly to satisfy any requirement imposed by any governmental 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 any and all environmental conditions affecting the
Property (including, without limitation, any and all 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 and all environmental conditions
affecting the Property (including, without limitation, any and all matters
disclosed in the Environmental Reports).
(k) SELLER'S KNOWLEDGE. For purposes of this Agreement, Seller's
knowledge means the present actual knowledge of Xxxxxx Xxxxxxx, Vice
President of JMB Realty Corporation and partnership coordinator overseeing
the investment of Seller in the Property (after having made inquiry of
Seller's third party property manager with respect to the representations
and warranties contained in this Agreement).
B. REPRESENTATIONS AND WARRANTIES OF BUYER. Buyer represents and
warrants to Seller as follows: 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
corporation, duly organized and validly existing and in good standing under
the laws of the State of Massachusetts and is duly authorized and qualified
to do all things required of it under this Agreement; and Buyer has the
legal capacity and authority to enter into this Agreement and consummate
the transactions herein provided without the consent or joinder of any
other party (except as otherwise set forth in this Agreement).
C. SURVIVAL. Any cause of action of a party for a breach of the
foregoing representations and warranties shall survive until the date which
is six (6) months after the Closing Date (the "Survival Termination Date"),
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 provided such false or inaccurate representations, warranties,
breaches or defaults were not knowingly or intentionally made in bad faith,
Seller shall have no liability or obligation respecting such matters (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 (and as conditions precedent to
Buyer's obligation to purchase the Property):
(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 shall be terminated at closing
(and Seller shall promptly provide Buyer with copies of all such additional
service contracts). To the extent permitted pursuant to the terms thereof,
Seller shall cause any Service Agreements designated by Buyer in writing to
be terminated on the Closing Date; provided, however, except for any
management agreements (which Seller agrees to terminate at its sole cost
and expense), Seller and Buyer shall each be responsible for 50% of any
penalties, fees or other expenses which may be required to be paid pursuant
to the terms of such Service Agreements as a result of such termination to
the extent Buyer gives Seller less than 30 days notice to terminate (it
being understood and agreed that neither party shall be obligated to expend
more than $5,000 in the aggregate in connection therewith).
(3) Seller shall continue to offer the Property for lease in the
same manner as prior hereto pursuant to its normal course of business and
shall keep Buyer reasonably informed as to the status of leasing prior to
the Closing Date; provided, however, Seller shall not enter into any new
leases or material modifications of existing leases without the written
consent of Buyer (which consent will not be unreasonably withheld or
materially delayed); provided further, however, that if Seller requests
that Buyer consent to any new lease or any material modification of an
existing lease and Buyer fails to respond within three (3) business days of
Seller's request, such new lease or material modification of an existing
lease shall be deemed approved. Notwithstanding anything herein to the
contrary, at closing of the transactions hereunder, Buyer shall bear all
costs and expenses related to any new leases or material modifications of
existing leases entered into by Seller after the date hereof which have
been approved by Buyer.
(4) Seller shall maintain its existing insurance coverage (or
substantially equivalent coverage) through the Closing Date.
8. INDEMNIFICATION.
A. BY BUYER. Buyer shall hold harmless, indemnify and defend
Seller from and against: (1) any and all third party claims for personal
injury or property damage resulting from Buyer's torts related to the
Property and occurring on or after the Closing Date, and (2) all reasonable
costs and expenses, including reasonable attorneys' 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 personal
injury or property damage resulting from Seller's torts related to the
Property and occurring prior to the Closing Date and (2) all costs and
expenses, including reasonable attorneys' fees, incurred by the Buyer as a
result of such claims.
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, 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; AND
PROVIDED FURTHER HOWEVER, IF SELLER SHALL WILLFULLY TAKE ACTIONS SO AS TO
PREVENT THE AVAILABILITY OF A SPECIFIC PERFORMANCE ACTION TO BUYER, 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 TRANSACTION HEREIN PROVIDED SHALL NOT CLOSE BY REASON OF
BUYER'S DEFAULT UNDER THIS AGREEMENT, THEN THE ESCROW DEPOSIT SHALL BE
DELIVERED TO SELLER AS FULL COMPENSATION AND LIQUIDATED DAMAGES UNDER AND
IN CONNECTION WITH THIS AGREEMENT (AND THIS AGREEMENT SHALL THEREUPON
TERMINATE). 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. NOTHING CONTAINED HEREIN SHALL LIMIT
EITHER PARTY'S RIGHTS TO ATTORNEYS' FEES AND OTHER COSTS SPECIFIED IN
PARAGRAPH 10I BELOW IN THE EVENT OF LITIGATION RESPECTING THE MATTERS
PROVIDED FOR IN THIS PARAGRAPH 9.
_________________ ________________
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, except for any claims by Broker which are Seller's responsibility
hereunder, 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 10 A(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 Hamptons International ("Broker")
pursuant to a separate written agreement. The foregoing payment shall be
the sole commissions, fees or payments payable to 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 or other obligations (whether express or implied) of Seller under
this Agreement (or any document executed or delivered in connection
herewith) shall not exceed $1,000,000.
(2) If the closing of the transactions hereunder shall have
occurred, then in no event shall either Seller or Buyer have any liability
pursuant to or in connection with the representations or warranties, under
this Agreement or the documents delivered at closing pursuant to the
provisions of paragraph 5 hereof) unless and until such liabilities shall
exceed $10,000 in the aggregate; provided, however, nothing contained in
the foregoing shall limit either party's liability for any proration
amounts provided for in paragraph 5D of this Agreement.
(3) No constituent partner or member in or manager or agent of
either Seller or Buyer, nor any advisor, trustee, director, officer,
employee, beneficiary, shareholder, participant, representative, manager or
agent of any corporation or trust that is or becomes a constituent partner
or member in Seller or Buyer (including, but not limited to, JMB Realty
Corporation and the individual(s) specified in paragraph 7A(2) above) 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
each party and its respective successors and assigns and, without
limitation, all other persons and entities, shall look solely to the other
party's assets for the payment of any claim or for any performance, and
each party, 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 or member in Seller or Buyer (or in any
other constituent partner or member of Seller or Buyer), nor any obligation
of any constituent partner or member in Seller or Buyer (or in any other
constituent partner or member of Seller or Buyer) to restore a negative
capital account or to contribute capital to Seller (or to any other
constituent partner or member of Seller or Buyer), shall at any time be
deemed to be the property or an asset of Seller or Buyer or any such other
constituent partner or member (and neither any party nor any of its
respective 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 or member's obligation to restore or contribute). Nothing
contained in the foregoing shall limit Seller's right to receive the Escrow
Deposit in accordance with the terms and provisions of paragraph 9 hereof.
(4) Notwithstanding the foregoing, Seller or its successor in
interest shall establish reserves of at least $1,100,000 in cash or
reasonably liquid investments as of the Closing Date for the purpose of
paying any "Specified Liabilities" (defined below) and during the "Survival
Period" (defined below), Seller shall only utilize such reserves for the
payment of such Specified Liabilities; provided, however, that if (i)
Seller or its successor-in-interest shall fail to retain reserves of at
least $1,100,000 in cash or reasonably liquid investments at the time of
closing hereunder, or (ii) during the period commencing on the Closing Date
and ending on the date which is six (6) months after the Closing Date (the
"Survival Period"), Seller or its successor-in-interest shall utilize such
reserves for any purpose other than the payment of claims, expenses,
liabilities or attorneys' fees of Seller or such successor-in-interest
(including any amounts incurred in connection with resolving or defending
any claim of liability hereunder) with respect to a breach or alleged
breach of the representations, warranties, indemnifications, covenants or
other obligations (whether express or implied) of Seller under this
Agreement (or any document executed or delivered in connection herewith),
with respect to the Property (collectively, the "Specified Liabilities"),
then subject to the terms and conditions of this Agreement, Buyer may,
during the Survival Period, look to the assets of JMB Realty Corporation,
as the general partner of Seller, for the payment of any Specified
Liabilities; provided, however, the aggregate liability of JMB Realty
Corporation in connection therewith shall not exceed $1,000,000 in the
aggregate and shall be further limited as follows:
(x) with respect to the initial reserve amount, such
liability shall be limited to the lesser of the amount by which $1,100,000
exceeds the amount actually reserved by Seller or its successor-in-interest
in closing hereunder, and $1,000,000; or
(y) during the Survival Period, such liability shall be
limited to the lesser of the amount of such reserves which, during the
Survival Period, are utilized for purposes other than the payment of the
Specified Liabilities, and $1,000,000.
By signing this Agreement, JMB Realty Corporation represents and warrants
that as of the date hereof, it has a net worth on a current value basis of
not less than $10,000,000.
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, but such transferor shall
not be released from its obligations hereunder); provided, however,
concurrently with closing Buyer may, with notice but otherwise without
requirement of Seller's consent, assign its interest in this Agreement to
(i) any subsidiary of TA Realty Corp., (ii) any entity on which TA Realty
Corp., TA Associates Realty or the principals thereof control the day to
day management decisions, or (iii) an entity for which TA Realty Corp. or
TA Associates Realty serves as an investment advisor. 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:
--------
TA Realty Corp.
0000 Xxxxxxx Xxxxx
Xxxxxxx Xxxxx, Xxxxxxxxxx 00000
Attention: Xx. Xxxxx Xxxxxxxxxx
Telecopier: (000) 000-0000
Office (Gen): (000) 000-0000
WITH COPY TO:
------------
Battle Xxxxxx LLP
0000 Xxxxxxx Xxxx Xxxx
Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxx, Esq.
Telecopier: (000) 000-0000
Office (Gen): (000) 000-0000
TO SELLER:
---------
JMB Income Properties, Ltd.-XIII
c/o JMB Realty Corporation
000 Xxxxx Xxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xx. Xxxxxx Xxxxxxx
Telecopier: (000) 000-0000
Office (Gen): (000) 000-0000
WITH COPIES TO:
--------------
Pircher, Xxxxxxx & Xxxxx
1999 Avenue of the Stars
Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Real Estate Notices (GML)
Telecopier: (000) 000-0000
Office (Gen): (000) 000-0000
AND TO:
------
Hamptons International
00 Xxxx Xxxxxx Xxxxxx
Xxxxx 0000 Xxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xx. Xxxxx X. Xxxxx
Telecopier: (000) 000-0000
Office (Gen): (000) 000-0000
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. Notices
may be given by telecopied transmission and shall be deemed given upon the
actual receipt of the same by the individual to which they are addressed,
and shall be promptly followed by a hard copy notice by mail as provided
above.
I. LEGAL COSTS. The parties hereto agree that they shall pay
directly any and all legal costs which they have incurred on their own
behalf in the preparation of this Agreement, all deeds and other agreements
pertaining to this transaction and that such legal costs shall not be part
of the closing costs. In addition, if either Buyer or Seller brings any
suit or other proceeding with respect to the subject matter or the
enforcement of this Agreement, the prevailing party (as determined by the
court, agency or other authority before which such suit or proceeding is
commenced), in addition to such other relief as may be awarded, shall be
entitled to recover reasonable attorneys' fees, expenses and costs of
investigation actually incurred. The foregoing includes, but is not
limited to, attorneys' fees, expenses and costs of investigation
(including, without limitation, those incurred in appellate proceedings),
costs incurred in establishing the right to indemnification, or in any
action or participation in, or in connection with, any case or proceeding
under Chapter 7, 11 or 13 of the Bankruptcy Code (11 United States Code
Sections 101 et seq.), or any successor statutes.
J. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
shall constitute one and the same document.
K. REPORTING PERSON. Seller and Buyer hereby designate Escrow
Holder as the Real Estate Reporting Person for purposes of Section 6045 of
the Internal Revenue Code; and Escrow Holder, by its execution below,
hereby accepts such appointment.
L. AGREEMENT NOT TO MARKET. Seller agrees that, after the
execution of this Agreement and prior to termination hereunder, and so long
as Buyer is not in default hereunder, Seller shall take the Property off
the market and shall not solicit or accept any offers concerning the sale
of the Property other than the transaction contemplated herein.
M. WAIVER OF TRIAL BY JURY. The respective parties hereto shall
and they hereby do waive trial by jury in any action, proceeding or
counterclaim brought by either of the parties hereto against the other
(except for personal injury or property damage) on any matters whatsoever
arising out of or in any way connected with this Agreement, or for the
enforcement of any remedy under any statute, emergency or otherwise.
N. CONFIDENTIALITY. Each of the parties acknowledge that the
financial terms of the transactions contemplated by this Agreement, and the
information respecting the Property and the other party, are to be held in
confidence by each such party; provided, however, each party may disclose
such terms and information to its legal counsel, agents, brokers,
accountants, clients, consultants, officers, partners, directors,
shareholders, members, managers and employees who reasonably need to know
the same (and each of whom shall be instructed to keep the same in
confidence). Nothing contained herein shall preclude or limit either party
from disclosing or accessing any information otherwise deemed confidential
hereunder in connection with such party's enforcement rights under this
Agreement or in response to lawful process or subpoena or other valid or
enforceable order of a court of competent jurisdiction or any filings
required by Seller pursuant to applicable law.
M. 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).
IN WITNESS WHEREOF, the parties have executed this Agreement as of
the day and year written below.
JMB INCOME PROPERTIES, LTD.-XIII,
an Illinois limited partnership
By: JMB REALTY CORPORATION,
a Delaware corporation,
Corporate General Partner
By:
Name:
Title:
"Seller"
TA REALTY CORP.,
a Massachusetts corporation
By:
Name:
Title:
"Buyer"
JMB REALTY CORPORATION ACKNOWLEDGEMENT
--------------------------------------
The undersigned hereby executes this Agreement solely to evidence its
representation and warranty set forth in paragraph 10B(4) of this
Agreement.
Date: As of November 13, 1998 JMB REALTY CORPORATION,
a Delaware corporation
By: _____________________________
Name: _____________________________
Title: ______________________________
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: ________________ CHICAGO TITLE INSURANCE COMPANY,
a Missouri corporation
By: _____________________________
Name: _____________________________
Title: ______________________________
"Escrow Holder"
EXHIBIT A
Land Description
----------------
[Legal description from the title report to be attached.]
EXHIBIT B
Personal Property
-----------------
None.
EXHIBIT C
Scope of Work
-------------
Seller Environmental Testing
Three phases of investigation were performed by Seller's
environmental consultant, England & Associates, between February and July
1998. In February, a shallow groundwater investigation (Phase I),
consisting of the installation and sampling of three temporary piezometers,
was conducted to evaluate areas where prior soil sampling indicated the
potential of groundwater impact by Volatile Organic Compounds (VOCs).
Chlorinated VOCs were detected in two of the three piezometers, as set
forth in the report entitled Notification of Shallow Groundwater
Investigation Results -- Fountain Valley Industrial Park, Fountain Valley,
CA dated March 12, 1998, submitted to the Regional Water Quality Control
Board - Santa Xxx Region on March 12, 1998.
To further assess the extent of the detected constituents, a
supplemental groundwater investigation (Phase II) was conducted in March
1998. This phase consisted of the sampling of nineteen (19) locations
across the site using HydroPunch temporary monitoring methods. The
HydroPunch sampling and subsequent analysis resulted in the delineation of
the shallow groundwater containing VOCs, as set forth in the report
entitled Interim Report of Supplemental Groundwater Investigation --
Xxxxxxxx Xxxxxx Xxxxxxxxxx Xxxx - Xxxxxxxx Xxxxxx, XX dated April 3, 1998,
submitted to the Regional Water Quality Control Board - Santa Xxx Region on
April 3, 1998.
The final stage of the investigation (Phase III) occurred between
April and July and consisted of four steps to confirm and delineate the
concentrations of VOCs with monitoring xxxxx, confirm the groundwater flow
direction, and determine the site-specific stratigraphy. First, a cone
penetrometer survey was performed to obtain lithologic information to
assist in siting additional xxxxx and determine the areal extent and nature
of the less permeable materials underlying the shallow perched groundwater.
Next, three shallow monitoring xxxxx (XX-0, XX-0, and MW-3) were installed
to confirm the results of the HydroPunch data. In the third step, MW-4 was
installed to finalize the determination of the groundwater flow direction.
Finally, four additional monitoring xxxxx (MW-5 through MW-8) were
installed at downgradient locations to confirm and complete the
delineation. The observed extent of the dissolved VOCs is set forth in the
report entitled Groundwater Investigation Report -- Xxxxxxxx Xxxxxx
Xxxxxxxxxx Xxxx - Xxxxxxxx Xxxxxx, XX dated August 12, 1998, submitted to
the Regional Water Quality Control Board - Santa Xxx Region on August 14,
1998.
EXHIBIT D
FORM OF TENANT ESTOPPEL CERTIFICATE
-----------------------------------
TO: ___________________ ("Buyer") and
JMB INCOME PROPERTIES, LTD.-XIII, an Illinois limited partnership
("Seller")
Re: Lease dated ______________________________, by and between
____________________ , as Landlord, and ____________________, as Tenant,
covering premises commonly known as Fountain Valley Industrial Park in the
City of Fountain Valley, County of Orange, State of California.
The undersigned Tenant certifies and represents to Buyer and Seller,
and their respective lenders, attorneys, representatives and successors and
assigns, with respect to the above-described lease (the "Lease"), as
follows:
1. Tenant has accepted, and is in full and complete possession and
occupancy of, the premises covered by the Lease (the "Premises").
2. The Landlord named in the Lease, and its successor in interest,
if any (collectively, "Landlord"), has satisfied all commitments,
arrangements or understandings made to induce Tenant to enter into the
Lease, and to Tenant's actual knowledge, Landlord is not in any respect in
default in the performance of the terms and provisions of the Lease, and
there is not now any fact or condition with which notice or lapse of time,
or both, would become a default. Tenant has not made any (and, to the best
of Tenant's knowledge, has no current) claim of offsets or credits against
rentals or other monetary obligations of Tenant payable under the Lease.
3. Tenant is not in any respect in default under the terms and
provisions of the Lease, and there are no facts or conditions which with
notice, the passage of time, or both, would ripen into a default.
4. Tenant has not assigned, transferred or hypothecated any of its
interest under the Lease.
5. The Lease, a true, correct and complete copy of which is
attached hereto, is in full force and effect, is for a total term of ______
______________________________ (_____) years, ending ____________________,
has not been in any respect modified, altered or amended, and contains the
entire agreement, understanding and commitment (written or oral) between
Landlord and Tenant, except as follows:
______________________________________________________________________
______________________________________________________________________.
(List and attach initialed copies of all amendments and modifications or
write "NONE.")
6. Except as provided in the Lease, Tenant does not have any right
to renew or extend the term of the Lease. Tenant does not have any right,
title or interest with respect to the Premises other than as Tenant under
the Lease and Tenant does not have any option or preferential right to
purchase all or any part of the Premises or all or any part of the property
of which the Premises are a part.
7. Neither Tenant nor any predecessor of Tenant has made any
payment to Landlord as a security deposit or advance or prepaid rent,
except as follows: __________________________________________________
8. As of the date hereof, the minimum annual base rent under the
Lease is ______________________________ DOLLARS ($____________), subject to
escalation in accordance with the terms and provisions of the Lease, and
said amount is being paid by Tenant in monthly payments of ______________
______ DOLLARS ($____________). As of the date hereof, the monthly
operating expenses payable by Tenant under the Lease is ___________
_________ DOLLARS ($____________), subject to adjustments in accordance
with the terms and provisions of the Lease. Tenant is current in the
payment of rent and other monetary obligations under the Lease to Landlord.
9. Tenant is not subject to a filing of a petition under the
federal bankruptcy law or any insolvency laws or any laws for the
reorganization of debtors, and Tenant has not made a general assignment for
the benefit of creditors and is not insolvent.
10. Tenant has received no notice of a prior sale, transfer,
assignment, hypothecation or pledge of the Lease or of the rents secured
therein.
11. Tenant makes the above representations for the benefit and
protection of (i) Seller (and its lenders) with the understanding and
intent that the representations herein will be relied upon materially by
Seller, and (ii) Buyer (and its lenders) with the understanding and intent
that the representations herein will be relied upon materially by Buyer in
purchasing (or financing) the property of which the Premises are a part and
in taking an assignment of Landlord's interest in the Lease.
DATED: ____________________, 1998.
TENANT:
a ____________________________________,
By:
Name:
Title:
EXHIBIT E
FORM OF GRANT DEED
------------------
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
Battle Xxxxxx LLP
0000 Xxxxxxx Xxxx Xxxx
Xxxxx 0000
Xxx Xxxxxxx, XX 00000
Attn: Xxxx X. Xxxx, Esq.
MAIL TAX STATEMENTS TO:
TA/WESTERN, LLC
c/o TA Realty Corp.
0000 Xxxxxxx Xxxxx
Xxxxxxx Xxxxx, Xxxxxxxxxx 00000
Attention: Fountain Valley Industrial Park
GRANT DEED
The undersigned Grantor declares that Documentary Transfer Tax is not
part of the public records.
FOR VALUABLE CONSIDERATION, receipt of which is hereby acknowledged,
JMB INCOME PROPERTIES, LTD.-XIII, an Illinois limited partnership
("Grantor"), hereby GRANTS to TA/WESTERN, LLC, a Delaware limited liability
company ("Grantee"), that certain real property located in the County of
Orange, State of California, and more particularly described in Exhibit A
attached hereto and incorporated herein by this reference (the "Property"),
together with (i) all improvements owned by Grantor and located thereon,
(ii) all rights, privileges, easements and appurtenances owned by Grantor
appertaining to the Property, and (iii) all right, title and interest of
Grantor (if any) in, to and under adjoining streets, rights of way and
easements, SUBJECT TO all covenants, conditions, easements, encumbrances
and all other matters of record.
[SIGNATURE PAGE ATTACHED]
IN WITNESS WHEREOF, Grantor has caused its duly authorized
representatives to execute this instrument as of December 11, 1998.
GRANTOR: JMB INCOME PROPERTIES, LTD.-XIII,
an Illinois limited partnership
By: JMB REALTY CORPORATION,
a Delaware corporation,
Corporate General Partner
By:
Name:
Title:
Assessor's Parcel Number(s): 000-000-00, 000-000-00, 000-000-00, 156-161-
15, 000-000-00, 000-000-00, 000-000-00, 000-000-00, 000-000-00, 000-000-00,
000-000-00, 000-000-00, 000-000-00 and 000-000-00.
ACKNOWLEDGMENT
STATE OF ILLINOIS )
COUNTY OF XXXX )
On ________________, 1998, before me, ______________________, a
Notary Public in and for said State, personally appeared
_________________________, personally known to me (or proved to me on the
basis of satisfactory evidence) to be the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that he/she/they
executed the same in his/her/their authorized capacity(ies), and that by
his/her/their signature(s) on the instrument the person(s), or the entity
upon behalf of which the person(s) acted, executed the instrument.
WITNESS my hand and official seal.
Signature ________________________________ (Seal)
EXHIBIT A
To Grant Deed
Land Description
----------------
[Legal description from the title report to be attached.]
STATEMENT OF TAX DUE AND REQUEST
THAT TAX DECLARATION NOT BE MADE A PART
OF THE PERMANENT RECORD
IN THE OFFICE OF THE
COUNTY RECORDER
(Pursuant to Cal. Rev. and Tax Code Section 11932)
To: Registrar - Recorder
County of Los Angeles
Request is hereby made in accordance with the provision of the Documentary
Transfer Tax Act that the amount of tax due not be shown on the original
document which names:
JMB INCOME PROPERTIES, LTD.-XIII, an Illinois limited
partnership, as Grantor,
and
TA/WESTERN, LLC, a Delaware limited liability company, as
Grantee.
The property described in the accompanying document is located in Orange
County, California.
The amount of tax due to the County of Orange on the accompanying document
is Twenty Three Thousand Seven Hundred Eighty Seven and 50/100 Dollars
($23,787.50), computed on full value of property conveyed.
GRANTOR: JMB INCOME PROPERTIES, LTD.-XIII,
an Illinois limited partnership
By: JMB REALTY CORPORATION,
a Delaware corporation,
Corporate General Partner
By:
Name:
Title:
NOTE: After the permanent record is made, this form will be affixed to the
conveying document and returned with it.
EXHIBIT F-1
FORM OF XXXX OF SALE
--------------------
XXXX OF SALE
FOR GOOD AND VALUABLE CONSIDERATION, receipt of which is hereby
acknowledged, the undersigned, JMB INCOME PROPERTIES, LTD.-XIII, an
Illinois limited partnership ("Seller"), does hereby give, grant, bargain,
sell, transfer, assign, convey and deliver to TA/WESTERN, LLC, a Delaware
limited liability company ("Buyer"), all of Seller's right, title and
interest in and to the furniture, fixtures, equipment and other personal
property ("Personal Property") described in Exhibit A attached hereto and
incorporated herein by this reference, free and clear of liens,
encumbrances and restrictions, which Personal Property is located on or
about that certain real property located in the City of Fountain Valley,
County of Orange, State of California, and more particularly described in
Exhibit B attached hereto and incorporated herein by this reference.
The covenants, agreements, representations, warranties, indemnities
and limitations provided in that certain agreement ("Purchase Agreement")
captioned "PURCHASE AGREEMENT AND JOINT ESCROW INSTRUCTIONS", dated as of
November 9, 1998, by and between Seller and Buyer with respect to the
property conveyed hereunder (including, without limitation, the limitations
of liability provided in Paragraphs 7, 8, 9 and 10.B of the Purchase
Agreement), 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.
Seller covenants that it will, at any time and from time to time upon
written request therefor, execute and deliver to Buyer, its successors
and/or assigns, any new or confirmatory instruments and do and perform any
other acts which Buyer, its successors and/or assigns, may reasonably
request in order to fully assign and transfer to and vest in Buyer, its
successors and/or assigns, and protect its or their rights, title and
interest in and enjoyment of, all of the assets of Seller intended to be
transferred and assigned hereby, or to enable Buyer, its successors and/or
assigns, to realize upon or otherwise enjoy any such assets. All
references to "Seller" and "Buyer" herein shall be deemed to include their
respective successors and/or assigns, where the context permits.
[SIGNATURE PAGE ATTACHED]
Dated: ____________, 1998
SELLER: JMB INCOME PROPERTIES, LTD.-XIII,
an Illinois limited partnership
By: JMB REALTY CORPORATION,
a Delaware corporation,
Corporate General Partner
By:
Name:
Title:
BUYER: TA/WESTERN, LLC,
a Delaware limited liability company
By: TA REALTY CORP.,
a Massachusetts corporation
By:
Name:
Title:
EXHIBIT A
To Xxxx of Sale
Personal Property
-----------------
None.
EXHIBIT B
To Xxxx of Sale
and Description
----------------
[Legal description from the title report to be attached.]
EXHIBIT F-2
FORM OF GENERAL ASSIGNMENT
--------------------------
GENERAL ASSIGNMENT
THIS GENERAL ASSIGNMENT (this "Assignment") is made as of December 11,
1998, by and between JMB INCOME PROPERTIES, LTD.-XIII, an Illinois limited
partnership ("Seller"), and TA/WESTERN, LLC, a Delaware limited liability
company ("Buyer").
FOR GOOD AND VALUABLE CONSIDERATION, the receipt and sufficiency of which
are hereby acknowledged, Seller grants, sells, conveys, transfers and
assigns unto Buyer all of Seller's right, title and interest in, to and
under the following items relating to that certain real property and
improvements located in Orange County, California, and more particularly
described in Exhibit A attached hereto and incorporated herein by this
reference (the "Property"):
(a) to the extent they may be transferred under applicable
law, all licenses, permits, approvals, certificates of occupancy and other
approvals necessary for the current use and operation of the Property,
including, without limitation, sewer rights and permits, presently issued
in connection with the operation of all or any part of the Property or
necessary to operate the Property as it is presently being operated;
(b) all warranties, if any, issued to Seller by any
manufacturers and contractors in connection with construction or
installation of equipment included as part of the Property;
(c) all transferable telephone exchange numbers and
development rights related to the Property;
(d) to the extent assignable, all service, supply, security,
management and maintenance contracts (collectively, the "Service
Agreements") described in Exhibit B attached hereto and incorporated herein
by this reference, relating to the Property or its mechanical equipment,
elevators and other elements; and
(e) all plans, drawings, specifications, tradenames, surveys,
renderings and other technical descriptions that specifically relate to the
Property.
Seller shall indemnify, protect, defend and hold Buyer harmless from
and against any and all claims, demands, damages, losses, liabilities,
costs and expenses (including reasonable attorneys' fees) arising in
connection with the Service Agreements described in subparagraph (d) above
and relating to the period prior to the date hereof. Buyer accepts the
foregoing assignment and assumes the obligations of Seller in connection
with the Service Agreements described in subparagraph (d) above and shall
indemnify, protect, defend and hold Seller harmless from and against any
and all claims, demands, damages, losses, liabilities, costs and expenses
(including reasonable attorneys' fees) arising in connection with the
Service Agreements described in subparagraph (d) above and relating to the
period on or after the date hereof.
The covenants, agreements, representations, warranties, indemnities
and limitations provided in that certain agreement ("Purchase Agreement")
captioned "PURCHASE AGREEMENT AND JOINT ESCROW INSTRUCTIONS", dated as of
November 9, 1998, by and between Seller and Buyer with respect to the
property conveyed hereunder (including, without limitation, the limitations
of liability provided in Paragraphs 7, 8, 9 and 10.B of the Purchase
Agreement), 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.
Seller covenants that it will, at any time and from time to time upon
written request therefor, execute and deliver to Buyer, its successors
and/or assigns, any new or confirmatory instruments and do and perform any
other acts which Buyer, its successors and/or assigns, may reasonably
request in order to fully assign and transfer to and vest in Buyer, its
successors and/or assigns, and protect its or their rights, title and
interest in and enjoyment of, all of the assets of Seller intended to be
transferred and assigned hereby, or to enable Buyer, its successors and/or
assigns, to realize upon or otherwise enjoy any such assets. All
references to "Seller" and "Buyer" herein shall be deemed to include their
respective successors and/or assigns, where the context permits.
The provisions of this Assignment shall be binding upon, and shall
inure to the benefit of, the successors and assigns of Seller and Buyer,
respectively.
This Assignment may be executed in any number of counterparts, each
of which shall be deemed an original, but all of which when taken together
shall constitute one and the same instrument. The signature page of any
counterpart may be detached therefrom without impairing the legal effect of
the signature(s) thereon, provided such signature page is attached to any
other counterpart identical thereto except having additional signature
pages executed by other parties to this Assignment attached thereto.
[SIGNATURE PAGE ATTACHED]
IN WITNESS WHEREOF, Assignor and Assignee have caused their duly
authorized representatives to execute this Assignment as of the date first
above written.
ASSIGNOR: JMB INCOME PROPERTIES, LTD.-XIII,
an Illinois limited partnership
By: JMB REALTY CORPORATION,
a Delaware corporation,
Corporate General Partner
By:
Name:
Title:
ASSIGNEE: TA/WESTERN, LLC,
a Delaware limited liability company
By: TA REALTY CORP.,
a Massachusetts corporation
By:
Name:
Title:
EXHIBIT A
To General Assignment
Land Description
---------------------
[Legal description from the title report to be attached.]
EXHIBIT B
To General Assignment
List of Service Agreements
--------------------------
None.
EXHIBIT F-3
FORM OF LEASE ASSIGNMENT
------------------------
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
Battle Xxxxxx LLP
0000 Xxxxxxx Xxxx Xxxx
Xxxxx 0000
Xxx Xxxxxxx, XX 00000
Attn: Xxxx X. Xxxx, Esq.
ASSIGNMENT AND ASSUMPTION OF LEASES
-----------------------------------
THIS ASSIGNMENT AND ASSUMPTION OF LEASES (this "Assignment") is made
as of December 11, 1998 by and between JMB INCOME PROPERTIES, LTD.-XIII, an
Illinois limited partnership ("Assignor"), and TA/WESTERN, LLC, a Delaware
limited liability company ("Assignee"), with reference to the following
facts:
A. Assignor, as lessor, and those certain tenants listed in
Exhibit B attached hereto (collectively, the "Tenants") have entered into
leases or other agreements demising space in or otherwise similarly
affecting or relating to the "Premises" (as hereinafter defined), together
with any and all amendments, modifications or supplements thereto
(collectively, the "Leases") covering certain premises (the "Premises")
located upon that certain parcel of real property situated in Orange
County, California, more particularly described in Exhibit A attached
hereto.
B. Assignor has received (and has not applied) security deposits
and rents prepaid more than one (1) month in advance from the Tenants under
the Leases, in the total cash amount of ______________________________
($__________) (the "Security Deposits").
C. Pursuant to the terms of that certain agreement captioned
"PURCHASE AGREEMENT AND JOINT ESCROW INSTRUCTIONS", dated as of November 9,
1998, entered into by Assignor, as Seller, and Assignee, as Buyer (the
"Purchase Agreement"), Assignor now desires to assign and transfer to
Assignee, and Assignee desires to assume, all of Assignor's interest as
lessor in the Leases and Security Deposits as set forth herein.
NOW THEREFORE, in consideration of the mutual covenants and
conditions herein below set forth, the parties hereby agree as follows:
1. Effective as of the "Closing Date", as that phrase is defined
in the Purchase Agreement, Assignor assigns and transfers to Assignee, all
of Assignor's right, title, interest and claims as lessor, in, to and
arising out of the Leases (including, without limitation, all of Assignor's
right, title and interest in and to those certain sales tax rebates from
the City of Fountain Valley, California with respect to the Premises for
the Fiscal Year 1998 and for that portion of Fiscal Year 1999 which occurs
prior to the Closing Date, including, without limitation, all sales tax
rebates with respect to the Lease with Fry's Electronics, Inc.) and
Security Deposits, subject to the provisions set forth in the Leases.
2. Assignee hereby accepts the assignment of the Leases and
Security Deposits as of the Closing Date, shall be entitled to all rights
and benefits accruing to the lessor thereunder and hereby assumes and
agrees to discharge all burdens and obligations of Assignor thereunder and
agrees to be bound by the terms of each of the Leases, from and after the
Closing Date.
3. The covenants, agreements, representations, warranties,
indemnities and limitations provided in the Purchase Agreement with respect
to the Leases and Security Deposits conveyed hereunder (including, without
limitation, the limitations of liability provided in Paragraphs 7, 8, 9 and
10.B of the Purchase Agreement), 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.
4. The provisions of this instrument shall be binding upon and
inure to the benefit of Assignor and Assignee and their respective heirs,
executors, administrators, successors and assigns.
5. This Assignment and Assumption may be executed in counterparts
which taken together shall constitute one and the same instrument.
6. This Assignment shall not supersede the Purchase Agreement and,
in the event of conflict between this Assignment and the Purchase
Agreement, the Purchase Agreement shall control.
[SIGNATURE PAGE ATTACHED]
IN WITNESS WHEREOF, Assignor and Assignee have executed this
Assignment as of the date first above written.
ASSIGNOR: JMB INCOME PROPERTIES, LTD.-XIII,
an Illinois limited partnership
By: JMB REALTY CORPORATION,
a Delaware corporation,
Corporate General Partner
By:
Name:
Title:
ASSIGNEE: TA/WESTERN, LLC,
a Delaware limited liability company
By: TA REALTY CORP.,
a Massachusetts corporation
By:
Name:
Title:
ACKNOWLEDGMENT
STATE OF ILLINOIS )
COUNTY OF XXXX )
On __________________, 1998, before me, ______________________, a
Notary Public in and for said State, personally appeared
_________________________, personally known to me (or proved to me on the
basis of satisfactory evidence) to be the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that he/she/they
executed the same in his/her/their authorized capacity(ies), and that by
his/her/their signature(s) on the instrument the person(s), or the entity
upon behalf of which the person(s) acted, executed the instrument.
WITNESS my hand and official seal.
Signature ________________________________ (Seal)
STATE OF _________________ )
COUNTY OF _______________ )
On __________________, 1998, before me, ______________________, a
Notary Public in and for said State, personally appeared ______________
___________, personally known to me (or proved to me on the basis of
satisfactory evidence) to be the person(s) whose name(s) is/are subscribed
to the within instrument and acknowledged to me that he/she/they executed
the same in his/her/their authorized capacity(ies), and that by
his/her/their signature(s) on the instrument the person(s), or the entity
upon behalf of which the person(s) acted, executed the instrument.
WITNESS my hand and official seal.
Signature ________________________________ (Seal)
EXHIBIT A
To Assignment and Assumption of Leases
Land Description
--------------------------------------
[Legal description from the title report to be attached.]
EXHIBIT B
To Assignment and Assumption of Leases
List of Tenants
--------------------------------------
Building Tenant
-------- ------
1 Pacific Mutual Life Insurance
Lease dated 4/28/1997 between JMB Income Properties
and tenant
2 D & T Associates, Inc.
Lease dated 9/1/1993 between JMB Income Properties
and tenant
3 Creative Bus Sales, Inc.
Lease dated 3/25/1997 between JMB Income Properties and tenant
4 Fry's Electronics, Inc.
Lease dated 7/14/1993 between JMB Income Properties
and tenant
First Amendment dated 8/25/1993 between same landlord
and tenant
5 Car Prep, Inc.
Lease dated 7/14/1994 between JMB Income Properties
and tenant
First Amendment dated 8/26/1998 between same landlord
and tenant
6 Silk Gallery
Lease dated 4/15/1987 between Bank of America Trust
& Savings association and tenant First Amendment
dated 4/25/1990 between JMB Income Properties and
tenant Second Amendment dated 3/21/1991 between
same landlord and tenant Third Amendment dated
3/6/1992 between same landlord and tenant Fourth
Amendment dated 9/26/1997 between same landlord
and tenant
7 Orange Coast Collision, Inc.
Lease dated 9/20/1994 between JMB Income Properties
and tenant First Amendment dated 11/16/1994 between
same landlord and tenant
8 Xxx Xxxx Co.
Lease dated 8/31/1992 between JMB Income Properties
and tenant Lease Renewal Agreement dated 5/22/1996
between same landlord and tenant
9 A & R Wholesale Distributors, Inc.
Lease dated 1/23/1996 between JMB Income Properties
and tenant
10 Circuit City Stores, Inc.
Lease dated 4/27/1994 between JMB Income Properties
and tenant
11 Atlas Bolt and Supply Co., Inc.
Lease dated 3/6/1992 between JMB Income Properties
and tenant First Amendment dated 3/7/1997 between same
landlord and tenant
12 Prototype Concepts, Inc.
Lease dated 5/12/1992 between JMB Income Properties and
tenant First Amendment dated 11/10/1992 between same
landlord and tenant Lease Renewal Agreement dated
4/15/1996 between same landlord and tenant
13 Xxxxxx X. Park d/b/a MAACO Auto Painting
Lease dated 04/08/1997 between JMB Income Properties
and Xxxxx Xxxxxxx Assignment of Lease dated 01/19/1998
between same landlord, Xxxxx Xxxxxxx and tenant
14 Decorative Fabric House, Inc.
Lease dated 6/10/1994 between JMB Income Properties and
tenant First Amendment dated 1/16/95 between same landlord
and tenant
EXHIBIT "G"
EXCEPTIONS TO SELLER'S REPRESENTATIONS AND WARRANTIES
-----------------------------------------------------
None.*
* Although the following does not constitute an exception to any
Seller representation or warranty as set forth in the Purchase Agreement to
which this exhibit is attached, the following is being provided for
Seller's information without representation or warranty of any kind or
nature.
OUTSTANDING TENANT BALANCES AS OF 11/19/98
FRY'S ELECTRONICS Credit Balance of $(46,140.05)
CAR PREP, INC. 11/98 Charges:
Rent $ 13,013.52
Insurance $ 33.36
CAM $ 583.02
Taxes $ 1,112.92
Adjustments 8/98 - 10/98:
Rent $ 1,001.04
Insurance $ 711.57
CAM $ 1,749.06
Taxes $ 3,338.76
Car Prep, Inc. Total $ 21,843.25
SILK GALLERY 11/98 Charges:
Rent $ 8,293.50
Insurance $ 245.44
Taxes $ 834.75
Previous Credit
Rent $ (949.28)
Silk Gallery Total $ 8,424.41
CIRCUIT CITY 11/98 Charges:
CPI $ 393.38
TOTAL O/S AS OF 11/19 $(15,479.01)
EXHIBIT "H-1"
RENT ROLL
Building Tenant
-------- ------
1 Pacific Mutual Life Insurance
Lease dated 4/28/1997 between JMB Income Properties
and tenant
2 D & T Associates, Inc.
Lease dated 9/1/1993 between JMB Income Properties
and tenant
3 Creative Bus Sales, Inc.
Lease dated 3/25/1997 between JMB Income Properties
and tenant
4 Fry's Electronics, Inc.
Lease dated 7/14/1993 between JMB Income Properties
and tenant
First Amendment dated 8/25/1993 between same landlord
and tenant
5 Car Prep, Inc.
Lease dated 7/14/1994 between JMB Income Properties
and tenant
First Amendment dated 8/26/1998 between same landlord
and tenant
6 Silk Gallery
Lease dated 4/15/1987 between Bank of America Trust &
Savings association and tenant
First Amendment dated 4/25/1990 between JMB Income
Properties and tenant
Second Amendment dated 3/21/1991 between same landlord
and tenant
Third Amendment dated 3/6/1992 between same landlord
and tenant
Fourth Amendment dated 9/26/1997 between same landlord
and tenant
7 Orange Coast Collision, Inc.
Lease dated 9/20/1994 between JMB Income Properties
and tenant
First Amendment dated 11/16/1994 between same landlord
and tenant
8 Xxx Xxxx Co.
Lease dated 8/31/1992 between JMB Income Properties
and tenant
Lease Renewal Agreement dated 5/22/1996 between same
landlord and tenant
9 A & R Wholesale Distributors, Inc.
Lease dated 1/23/1996 between JMB Income Properties
and tenant
10 Circuit City Stores, Inc.
Lease dated 4/27/1994 between JMB Income Properties
and tenant
11 Atlas Bolt and Supply Co., Inc.
Lease dated 3/6/1992 between JMB Income Properties
and tenant
First Amendment dated 3/7/1997 between same landlord
and tenant
12 Prototype Concepts, Inc.
Lease dated 5/12/1992 between JMB Income Properties
and tenant
First Amendment dated 11/10/1992 between same
landlord and tenant
Lease Renewal Agreement dated 4/15/1996 between
same landlord and tenant
13 Xxxxxx X. Park d/b/a MAACO Auto Painting
Lease dated 04/08/1997 between JMB Income Properties and
Xxxxx Xxxxxxx
Assignment of Lease dated 01/19/1998 between same
landlord, Xxxxx Xxxxxxx and tenant
14 Decorative Fabric House, Inc.
Lease dated 6/10/1994 between JMB Income Properties
and tenant
First Amendment dated 1/16/95 between same landlord
and tenant
* See Exhibit "G" for information regarding credits and charges
due by or owed to Tenants as of 11/19/98.
EXHIBIT "H-2"
LIST OF BROKERAGE AGREEMENTS
----------------------------
None.
EXHIBIT "I"
SERVICE AGREEMENTS
None.
EXHIBIT "J"
ENVIRONMENTAL REPORTS
---------------------
California Regional Water Quality Control Board No Further Action Letter,
dated October 9, 1998
England & Associates Groundwater Investigation Report, dated August 12,
1998
England & Associates Interim Report of Supplemental Ground Water
Investigation, dated April 3, 1998
California Regional Water Quality Control Board Letter Regarding
Concurrence with England & Associates' Groundwater Investigation, dated
Xxxxx 00, 0000
Xxxxxxx & Associates Workplan for Supplemental Groundwater Investigation,
dated Xxxxx 00, 0000
Xxxxxxx & Associates Report of Shallow Groundwater Investigation, dated
Xxxxx 00, 0000
Xxxxxxx & Associates Workplan for Shallow Groundwater Investigation, dated
January 7, 1998
Xxxxxx & Associates Memorandum of Analytical Results of the Soil Gas and
Soil Assessment, dated November 26, 1997, commissioned by TA Associates
Xxxxxx & Associates Preliminary Briefing Report: Phase I Environmental
Site Assessment, dated October 17, 1997, commissioned by TA Associates.
Acton, Mickelson, Van Dam, Inc., Phase I Environmental Site Assessment,
dated November 18, 1993
ICF Technology Incorporated Preliminary Assessment, dated August 19, 1991
A.T. Xxxxxxx Phase I Environmental Integrity Assessment, dated August 1988
