EXHIBIT 2.1
BROOKWOOD METROPLEX
BIRMINGHAM, ALABAMA
PURCHASE AND SALE AGREEMENT
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THIS PURCHASE AND SALE AGREEMENT (this "Agreement") is made as of the ____
day of July, 1999, by and between FIRST CAPITAL INCOME PROPERTIES, LTD. - SERIES
VIII, a Florida limited partnership ("Seller"), having offices at Xxx Xxxxx
Xxxxxxxxx Xxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000, and BOARDWALK MANAGEMENT
CORPORATION, an Alabama corporation ("Purchaser"; it being understood that
"Purchaser" as used herein shall mean a "Permitted Assignee" under Section 11.B.
below subsequent to an assignment of this Agreement by Boardwalk Management
Corporation in accordance with Section 11.B. below), having offices at 000
Xxxxxx Xxxx Xxxxx, Xxxxx 000, Xxxxxxxxxx, Xxxxxxx 00000.
RECITALS
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A. Seller is the owner of that certain parcel of real estate (the "Real
Property") located in Birmingham, Alabama, which Real Property is more
particularly described in EXHIBIT A attached hereto and made a part hereof, and
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upon which is situated two (2) office buildings commonly known as Brookwood
Metroplex (each, an "Office Building" and collectively, the "Office Buildings").
B. Seller desires to sell to Purchaser, and Purchaser desires to purchase from
Seller, the Property (as such term is defined in Section 1 below), each in
accordance with and subject to the terms and conditions set forth in this
Agreement.
THEREFORE, in consideration of the above Recitals, the mutual covenants and
agreements herein set forth and the benefits to be derived therefrom, and other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Purchaser and Seller agree as follows:
1. PURCHASE AND SALE
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Subject to and in accordance with the terms and conditions set forth in this
Agreement, Purchaser shall purchase from Seller and Seller shall sell to
Purchaser the Real Property, together with: (a) the Office Buildings and all
other improvements owned by Seller and located on the Real Property
(collectively, the "Improvements"); (b) all of Seller's rights from and after
Closing in and to any and all, easements, licenses and privileges presently on
the Real Property or appertaining to the Real Property or the Improvements; (c)
Seller's right, title and interest from and after Closing in and to the leases
affecting the Property or any part thereof (individually, a "Lease", and
collectively, the "Leases", with it being understood that "Lease" and "Leases"
as used herein means all such leases, together with all modifications and
amendments thereto and all guarantees executed in connection therewith); (d)
Seller's interest from and after Closing in all security deposits paid by
tenants under the Leases and held by Seller as of the date hereof that are
listed in the "security deposits" column on EXHIBIT N attached hereto and which
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are not applied by Seller in accordance with the terms of the Leases and/or
applicable law between the date of this Agreement and Closing (the "Security
Deposits"); (e) all of Seller's right, title and interest from and after Closing
in and to the furniture, furnishings, fixtures, equipment, maintenance vehicles,
tools and other tangible personalty located on the Property and used in
connection therewith that are listed on EXHIBIT K attached hereto (the "Tangible
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Personal Property"); (f) all right, title and interest of Seller from and after
Closing under any and all of the maintenance, service,
leasing, brokerage, advertising and other like contracts and agreements with
respect to the ownership and operation of the Property which Purchaser is
obligated to assume or elects to assume pursuant to Section 11.M. below (all
such contracts and agreements existing as of the date hereof are listed on
EXHIBIT C attached hereto and are referred to herein as the "Service
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Contracts"); (g) if and to the extent transferable, all of Seller's interest
from and after Closing, if any, in and to all warranties and guaranties relating
to the Property, if any; (h) if and to the extent transferable, all of Seller's
interest from and after Closing, if any, in and to all plans, specifications and
floor plans for the Office Buildings, if any; and (i) if and to the extent
transferable, all of Seller's right, title and interest from and after Closing
in and to any existing intangible property pertaining to the Property (the
"Intangible Personal Property"), including any right Seller has to the name
"Brookwood Metroplex", but specifically excluding any intangible property
pertaining in any way to the rights associated with the name "Equity Office" or
the name of any entity containing the words "Equity Office" as a part thereof.
The Real Property, together with items (a) through (i) above, shall be
collectively referred to in this Agreement as the "Property". The term
"Property" expressly excludes: (1) all property owned by tenants or other users
or occupants of the Property (except to the extent that any Security Deposits
are deemed to be "owned" by a tenant under applicable law); (2) all rights with
respect to any refund of taxes applicable to any period prior to the Closing
Date (as defined in Section 4.A. below); and (3) all computers, software and
computer-related equipment located at the management office of the Property
which is not integrated into, controlling or otherwise operating the Office
Buildings' mechanical systems.
2. PURCHASE PRICE
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The purchase price to be paid by Purchaser to Seller for the Property is
Fifteen Million Two Hundred Fifty Thousand Dollars ($15,250,000) (the "Purchase
Price"). The Purchase Price shall be paid as follows:
X. Xxxxxxx Money.
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(i) Upon execution of this Agreement, Purchaser shall deliver to the
Chicago, Illinois office of LandAmerica National Commercial Services
("Escrowee"), the sum of Three Hundred Thousand Dollars ($300,000)
(together with any interest earned thereon and net of investment costs, the
"Xxxxxxx Money"). To direct the Escrowee as to the retention, investment
and disbursement of the Xxxxxxx Money, upon execution of this Agreement,
Purchaser, Seller and Escrowee shall enter into a joint order escrow
agreement (the "Joint Order Escrow Agreement") in the form attached hereto
as EXHIBIT D. The Xxxxxxx Money shall be invested as Seller and Purchaser
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so direct pursuant to the terms and provisions of the Joint Order Escrow
Agreement. Any and all interest earned on the Xxxxxxx Money shall be
reported to Purchaser's federal tax identification number.
(ii) If the Closing occurs in accordance with the terms of this
Agreement, at Closing, the Xxxxxxx Money shall be delivered by Escrowee to
Seller as part payment of the Purchase Price. If the Closing fails to
occur in accordance with the terms of this Agreement, the Xxxxxxx Money
shall be retained and disbursed as provided in Section 7. below.
B. Cash at Closing. At Closing, Purchaser shall pay to Seller, by wire
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transferred current federal funds, an amount equal to the Purchase Price,
minus the sum of the Xxxxxxx Money which Seller receives at Closing from
the Escrowee, and plus or minus, as the case may require, the closing
prorations and adjustments to be made pursuant to Section 4.C. below.
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3. EVIDENCE OF TITLE
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A. Title Commitment. Within ten (10) days after the date of this
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Agreement Seller shall cause to be delivered to Purchaser a commitment for
an ALTA Owner's Title Insurance Policy (the "Title Commitment") in the
amount of the Purchase Price, issued by either Commonwealth Land Title
Insurance Company or Lawyers Title Insurance Corporation through Escrowee's
Chicago, Illinois office (whichever of the foregoing parties actually
issuing such commitment being referred to herein as the "Title Insurer"),
together with copies of all underlying documents set forth therein (the
"Title Documents"). At Closing, the conveyance of the Property to
Purchaser shall be subject only to those exceptions to title which are more
fully described on attached EXHIBIT B (the "Existing Permitted Exceptions")
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and those exceptions to title which become Permitted Exceptions pursuant to
Section 3.C. below (collectively, the "Permitted Exceptions").
B. Survey. Purchaser may order a survey of the Real Property at its sole
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cost and expense (the "Survey"), provided that (1) Purchaser orders such
Survey within three (3) business days after receipt of the Title Commitment
and the Title Documents, and (2) all survey work (on-site and preparation
of the printed Survey) must be completed prior to the expiration of the
Inspection Period (as defined in Section 8.A. below).
(i) Seller to Pay a Portion of Cost of Survey Preparation. In the
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event that the Purchaser terminates the Agreement prior to the expiration
of the Inspection Period (as defined in Section 8.A. below) in accordance
with Section 8.A. below and Purchaser has ordered and obtained the Survey
in accordance with the foregoing provisions of this Section 3.B., then (1)
Purchaser shall pay the surveyor for the entire cost of the Survey, (2)
Seller shall be obligated to reimburse Purchaser for the lesser of (y) one-
half of the cost to prepare the Survey, and (z) $2,500, and (3) Seller
shall be entitled to ownership of the Survey after such termination (and
Purchaser hereby agrees to execute any and all documentation reasonably
required to facilitate such ownership).
C. Review of Title Commitment and Survey. If the Title Commitment or
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Survey (if ordered and obtained in accordance with Section 3.B above)
disclose exceptions to title other than the Existing Permitted Exceptions
(such exceptions to title being referred to as the "Disclosed Exceptions")
then Purchaser shall have until 5:00 p.m. (Chicago, Illinois time) on the
tenth (10th) day after the date of Purchaser's receipt of the last of the
Title Commitment and Survey (if ordered and obtained in accordance with
Section 3.B above) within which to notify Seller of any such Disclosed
Exceptions to which Purchaser objects (it being understood that, in the
event that Purchaser does not order and obtain the Survey in accordance
with Section 3.B above that Purchaser shall have until 5:00 p.m. (Chicago,
Illinois time) on the tenth (10th) day after Purchaser's receipt of the
Title Commitment within which to notify Seller of any such Disclosed
Exceptions to which Purchaser objects). If any additional exceptions to
title other than the Existing Permitted Exceptions and the Disclosed
Exceptions (such exceptions to title being referred to herein as the "New
Disclosed Exceptions") arise between the date of the Title Commitment, the
Survey (if ordered and obtained in accordance with Section 3.B above) and
the Closing, Purchaser shall have five (5) days after its receipt of notice
of same within which to notify Seller of any such New Disclosed Exceptions
to which Purchaser objects. Any such Disclosed Exceptions or New Disclosed
Exceptions not objected to by Purchaser as aforesaid shall become
"Permitted Exceptions" hereunder. If Purchaser objects to any such
Disclosed Exceptions or New Disclosed Exceptions, Seller shall have until
Closing (but in any event at
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least twenty (20) days after it receives notice of Purchaser's
objection(s)) to remove such Disclosed Exceptions or New Disclosed
Exceptions, which removal may be accomplished by waiver or endorsement by
the Title Insurer, the form of such endorsement to be acceptable to
Purchaser in its sole and absolute discretion. It is understood and agreed
that Seller shall have the obligation to remove any such Disclosed
Exceptions or New Disclosed Exceptions that constitute Removable Exceptions
(as hereinafter defined). Seller shall have no obligation to remove any
such Disclosed Exceptions or New Disclosed Exceptions which do not
constitute Removable Exceptions, and if Seller fails to remove any such
Disclosed Exceptions or New Disclosed Exceptions which do not constitute
Removable Exceptions as aforesaid, Purchaser may, as its sole and exclusive
right related to Seller's failure to removing such items, terminate this
Agreement and obtain a return of the Xxxxxxx Money in which event neither
party shall have any rights, remedies or obligations hereunder except those
rights, remedies or obligations that survive the termination of the
Agreement. If Purchaser does not elect to terminate this Agreement,
Purchaser shall consummate the Closing and accept title to the Property
subject to all such Disclosed Exceptions and New Disclosed Exceptions which
Seller does not remove as aforesaid (in which event, all such Disclosed
Exceptions and New Disclosed Exceptions, together with the Existing
Permitted Exceptions, shall be deemed "Permitted Exceptions" hereunder). It
is expressly understood and agreed that in the event that the 1983 Letter
Agreement (as hereinafter defined) is an exception to title, Purchaser
shall be obligated to cause the 1983 Letter Agreement to be released as an
exception to title in accordance with the Settlement Agreement (as
hereinafter defined). As used herein (1) "1983 Letter Agreement" shall mean
that certain letter agreement dated August 31, 1983 by and between
Purchaser (by assignment from Metropolitan Properties, Inc.
["Metropolitan"]) and Seller with respect to the Property, and (2)
"Settlement Agreement" shall mean that certain Settlement Agreement and
Mutual Release of even date herewith by and among Purchaser, Metropolitan
and Seller with respect to the 1983 Letter Agreement and certain other
matters. As used herein "Removable Exceptions" shall mean (x) Disclosed
Exceptions or New Disclosed Exceptions that can be removed by payment of a
liquidated, ascertainable sum of money and the aggregate cost to remove all
such Disclosed Exceptions or New Disclosed Exceptions does not exceed
$5,000, (y) any mortgages or deed of trusts encumbering the Real Property
that were granted by Seller, or (z) mechanic's liens with respect to work
contracted for by Seller or its authorized agents and such mechanic's liens
do not relate to, are attributable to or arise in connection with any
Service Contracts to be assumed by the Purchaser at Closing.
4. CLOSING
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A. Closing Date. The "Closing" of the transaction contemplated by this
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Agreement (that is, the payment of the Purchase Price, the transfer of
title to the Property, and the satisfaction of all other terms and
conditions of this Agreement) shall, subject to the provisions of
Section 4.A.(i) below, occur on the ninetieth (90/th/) day following date
of this Agreement, at the office of the Escrowee (in person and/or by
telecopy and/or overnight courier) or at such other time and place as
Seller and Purchaser shall agree in writing. The "Closing Date" shall be
the date of Closing. If the date for Closing above provided for falls on a
Saturday, Sunday or legal holiday, then the Closing Date shall be the next
business day.
(i) Purchaser's right to extend the Closing Date. Purchaser shall
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have the right, exercisable by delivery of written notice to Seller and the
Escrowee not earlier than the sixtieth (60/th/) day following the date of
this Agreement and not later than the seventy-fifth (75/th/) day following
the date of this Agreement, to extend the date for Closing from the
ninetieth (90/th/) day
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following the date of this Agreement to a date not later than the One
Hundred Twentieth (120th) day following the date of this Agreement. Such
written notice shall include a written instruction from the Purchaser to
the Escrowee to wire transfer the Xxxxxxx Money held by the Escrowee under
the Joint Order Escrow Agreement to Seller pursuant to separate wire
transfer instructions provided by Seller. Notwithstanding such delivery to
Seller, the retention and disbursement of the Xxxxxxx Money shall be
subject to the provisions of this Agreement. By delivery of such written
notice to Seller:
1. notwithstanding any other provision of this Agreement to the
contrary (including, without limitation, Sections 7., 8.C., 8.D. and 8.G.)
Purchaser shall be deemed to have waived, and Seller shall have no
liability for or obligation with respect to, any defaults or breaches of
Seller under this Agreement that relate to or arise out of any facts,
matters or conditions that exist or are alleged to exist as of the
ninetieth (90th) day following the date of this Agreement;
2. notwithstanding any other provision of this Agreement to the
contrary (including, without limitation, Sections 7., 8.C., 8.D. and 8.G.),
Purchaser shall be deemed to have waived any rights to terminate the
Agreement as a result of any failure of any conditions precedent to Closing
being satisfied as of Closing, if the facts, matters or conditions giving
rise to such failure existed or were alleged to exist, or such failure
occurred or was alleged to have occurred, on or prior to the ninetieth
(90th) day following the date of this Agreement, subject to the provisions
of subclause 3. immediately below;
3. notwithstanding any other provision of this Agreement to the
contrary, the Required Estoppel Certificates shall only be required to be
dated as of a date no more than forty-five (45) days prior to the date
which is ninety (90) days following the date of this Agreement;
4. notwithstanding any other provision of this Agreement to the
contrary, Purchaser shall be deemed to have waived any rights to terminate
the Agreement as a result of the condition of the Property as of the
ninetieth (90th) day following the date of this Agreement; and
5. notwithstanding any other provision of this Agreement to the
contrary, the representations set forth in Section 9.A. and remade and
restated as of Closing under Section 9.B. shall be updated to reflect any
facts, matters or circumstances existing or alleged to exist as of the
ninetieth (90th) day following the date of this Agreement.
B. Closing Documents and Deliveries.
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(i) Seller. At Closing, Seller shall deliver to Purchaser the
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following:
(a) a limited warranty deed (the "Deed") conveying the Real
Property, subject only to the Permitted Exceptions, in the form
attached hereto as EXHIBIT H (Seller, upon reasonable prior notice
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from Purchaser, shall execute separate limited warranty deeds to
Purchaser for "Parcel 1" and "Parcel 2" set forth on attached EXHIBIT
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A, each subject only to the Permitted Exceptions and in the form of
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EXHIBIT H attached hereto);
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(b) a special warranty xxxx of sale (the "Xxxx of Sale")
conveying the Personal Property in the form attached hereto as
EXHIBIT J;
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(c) a letter advising tenants under the Leases of the change in
ownership of the Property in the form of EXHIBIT L attached hereto;
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(d) a letter advising vendors under the Service Contracts which
Purchaser is obligated to assume or elects to assume pursuant to
Section 11.M. below of the change in ownership of the Property in the
form of EXHIBIT M attached hereto;
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(e) four (4) counterparts of an assignment and assumption of the
Leases and Security Deposits in the form of EXHIBIT E attached hereto
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(the "Lease Assignment"), executed by Seller;
(f) four (4) counterparts of an assignment and assumption of the
Service Contracts which Purchaser is obligated or elects to assume
pursuant to Section 11.M. below and the utility deposits in the form
of EXHIBIT F attached hereto (the "Service Contract Assignment"),
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executed by Seller;
(g) an affidavit stating, under penalty of perjury, Seller's
U.S. taxpayer identification number and that Seller is not a foreign
person within the meaning of Section 1445 of the Internal Revenue
Code;
(h) four (4) counterparts of a closing statement (the "Closing
Statement") to be executed by Seller and Purchaser, setting forth the
prorations and adjustments to the Purchase Price as required by
Section 4.C. below, executed by Seller;
(i) all executed Estoppel Certificates (as defined in Section
8.B.(i) below) received by Seller as of the Closing Date to the extent
not previously delivered to Purchaser or its counsel;
(j) any Landlord Certificates (as defined in Section 8.B.(ii)
below) provided by Seller in accordance with Section 8.B.(ii) below;
(k) four (4) counterparts of a letter with respect to Seller's
delivery of information required under 29 C.F.R. (S)1910.1001(j)(2)
(ii) and 29 C.F.R. (S)1926.1101(n)(6) (the "OSH A Letter") in the
form of EXHIBIT O attached hereto, executed by Seller;
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(l) four (4) counterparts of a quit claim assignment of permits
and general intangibles (the "Permit Assignment") in the form of
EXHIBIT R attached hereto;
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(m) four (4) counterparts of an assignment and assumption of
Metrogate Agreement (the "Metrogate Assignment") in the form of
EXHIBIT Y attached hereto, executed by Seller;
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(n) any transfer tax declaration, real property conveyance
statement or similar document (the "Transfer Tax Declarations") that
Seller is required by law to
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execute in order to record the Deed with the Jefferson County, Alabama
recorder, executed by Seller;
(o) an update of the Rent Roll (as defined in Section 9.A.(v)
below) the "Updated Rent Roll") dated as of the Closing Date,
certified by Seller to be, to the Actual Knowledge of Seller (as
defined in Section 9.A. below), true and correct (Purchaser hereby
acknowledging that: (1) Seller shall have no liability with respect
to the information set forth in such Updated Rent Roll to the extent
that such information is set forth in an Estoppel Certificate received
by Purchaser, and (2) as more particularly provided in Section 9.C.
below, Seller's liability under such certification shall terminate on
a date no later than the two hundred seventieth (270/th/) day after
the Closing Date);
(p) original counterparts of each of the Leases, together with
the lease files that were reviewed by Purchaser in accordance with
Section 8.B.(ii) below (all such Leases and lease files to be provided
at the Property);
(q) copies of those Leases for which either (1) original Leases
were not delivered as provided in Section 4.B.(i)(p) above; or (2)
Estoppel Certificates were not received by Seller or Purchaser prior
to the Closing Date, certified by Seller to be true and correct
(Purchaser hereby acknowledging that, as more particularly provided in
Section 9.C. below, Seller's liability under such certifications shall
terminate on a date no later than the two hundred seventieth (270th)
day after the Closing Date);
(r) the documents that were made available to Purchaser in
accordance with Section 8.A.(ii) below (all such documents to be
provided at the Property); and
(s) all keys for locks at the Buildings, as well as combinations
or codes for mechanical or alarm systems at the Buildings if and to
the extent reviewed by Purchaser at the time of its visit(s) to the
Property in accordance with Section 8.B.(ii) below (all to be provided
at the Property).
(ii) Purchaser. Purchaser shall deliver or cause to be delivered to
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Seller at Closing:
(a) the funds required pursuant to Section 2.B. above;
(b) four (4) counterparts of the Lease Assignment, executed by
Purchaser;
(c) four (4) counterparts of the Service Contract Assignment,
executed by Purchaser;
(d) four (4) counterparts of the Closing Statement, executed by
Purchaser;
(e) copies of all executed Estoppel Certificates received by
Purchaser as of the Closing Date, if any;
(f) four (4) counterparts of the OSHA Letter, executed by
Purchaser;
(g) four (4) counterparts of the Permit Assignment, executed by
Purchaser;
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(h) four (4) counterparts of the Metrogate Assignment,
executed by Purchaser; and
(i) the Transfer Tax Declarations, executed by Purchaser if
Purchaser is required by law to execute same.
(iii) Title Insurer. At Closing, the Title Insurer shall deliver to
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Purchaser the Title Policy (as defined in Section 8.E. below).
C. Closing Prorations and Adjustments.
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(i) Prorations. The following shall be apportioned with respect to
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the Property, based on the number of days Seller and Purchaser each own the
Property in the month, tax year or other applicable period in which the
Closing occurs, as of 12:01 a.m. on the Closing Date, as if Purchaser were
vested with title to the Property during the entire day which is the
Closing Date; provided, however, in the event that Seller receives the net
proceeds from the closing escrowee after 1:00 p.m. (Chicago, Illinois time)
on the Closing Date and, as a result of Seller receiving such funds after
such xxxx Xxxxxx is unable to invest the net proceeds from the transaction
with Seller's bank on the Closing Date, then, for purposes of
apportionments, Purchaser shall be deemed vested with title to the Property
beginning on the next business day following the Closing Date (it being
intended that, in the event that the day following the Closing Date is not
a business day, Seller shall be deemed vested with title during the Closing
Date and on all consecutive days, if any, subsequent to the Closing Date
that are not business days):
(a) all collected rents and other sums received under Leases
other than Security Deposits ("Rents");
(b) all unapplied cash Security Deposits;
(c) taxes and assessments (including, without limitation,
personal property taxes on the Personal Property, if any, rent taxes,
if any, and real estate taxes and assessments) levied against the
Property;
(d) pre-payments and accrued amounts due under any Service
Contracts;
(e) water, sewer, gas, electricity, telephone and other
utility and fuel charges for which Seller is liable, if any; such
charges to be apportioned at Closing on the basis of the most recent
meter reading occurring prior to Closing (which Seller shall request
to be read not more than three (3) days prior to Closing) or, if
unmetered, on the basis of a current xxxx for each such utility;
(f) fees paid for assignable licenses or permits, if any;
and
(g) all other ordinary, customary and necessary expenses
pertaining to the operation of the Property together with those
expenses unique to the operation of the Property, such as expenses
under the Metrogate Agreement (as defined in Section 11.Y. below)
(other than insurance premiums for Seller's insurance policies which
shall not be prorated, as they will be cancelled as of Closing).
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(ii) Method of Prorations. Notwithstanding anything contained in
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the foregoing provisions:
(a) At Closing, (1) Seller shall credit to the account of
Purchaser the amount of all unapplied cash Security Deposits (together
with any interest required to be paid thereon under the Leases) held
by Seller under Leases, (2) Seller shall credit to the account of
Purchaser the amount of any Rents that Seller has received as of
Closing and that are attributable to the month(s) subsequent to the
month in which the Closing occurs, and (3) Purchaser shall credit to
the account of Seller all refundable cash or other deposits posted
with utility companies serving the Property which the utility
companies permit to be assigned and which are assigned to Purchaser at
Closing pursuant to the Service Contract Assignment.
(b) Purchaser and Seller agree to prorate real estate taxes
and assessments for the period for which such taxes are assessed,
regardless of when payable, it being acknowledged that the real estate
taxes for the Property, which are due and payable during the fourth
quarter of each year, are comprised of several components payable to
several different taxing bodies and which are attributable to
different fiscal periods. Any taxes paid at or prior to Closing shall
be prorated as aforesaid based upon the amounts actually paid, with
Purchaser being charged and Seller being credited at Closing with that
portion of such taxes and assessments which relates to the period on
or after the Closing Date. If taxes and assessments for the fiscal
year in which Closing occurs have been determined but have not been
paid before Closing, Seller shall be charged and Purchaser credited at
Closing with an amount equal to that portion of such taxes and
assessments which relates to the period before the Closing Date and
Purchaser shall pay such taxes and assessments after Closing prior to
their becoming delinquent. If the actual taxes and assessments are
not known at Closing, the proration shall be based upon the most
recent assessed values and tax rates. To the extent that the actual
taxes and assessments paid differ from the amount apportioned at
Closing, the parties shall make all necessary adjustments by
appropriate payments between themselves within 30 days of the issuance
of final tax bills.
(c) Purchaser shall be responsible for the payment of (1)
all Tenant Inducement Costs (as hereinafter defined) and leasing
commissions which are set forth on EXHIBIT S attached hereto, (2) all
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Tenant Inducement Costs and leasing commissions which are set forth in
a Lease existing as of the date hereof and pursuant to the applicable
Lease are not due and payable prior to the Closing Date and are not
payable in connection with the existing (or any prior) term or tenancy
of the applicable premises covered by such Lease (it being understood
that the amounts for which Purchaser shall be liable pursuant to this
sub-clause (2) include any amounts payable at the time of a tenant's
exercise of any rights after Closing which occurs during the existing
term or any future term of the Lease, including an election to expand
into additional space not occupied as of Closing for the remainder of
the existing term of such tenant's Lease), and (3) all New Lease Costs
(as defined in Section 11.L. below). Seller shall be responsible for
the payment of all Tenant Inducement Costs and leasing commissions
payable prior to the Closing Date which are not described in clause
(1), (2) or (3) of the preceding sentence and, in the event that any
such amounts are payable after Closing, then Seller shall be charged
and Purchaser shall be credited at Closing with such amounts and
Purchaser shall thereafter be responsible for the payment of such
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amounts. Notwithstanding anything in the foregoing to the contrary in
no event shall Purchaser be responsible for the payment of leasing
commissions payable to Equity Office Properties Management Corp.
("EOPMC") or any other affiliate thereof or of Seller (in any case, an
"EOP Entity") unless such amount is included in the New Lease Costs.
In the event that the New Lease Costs include a leasing commission
payable to EOPMC and the total leasing commission payable in
connection with such New Lease to EOPMC and any third party exceeds
six percent (6%) of the base rental to be paid over the term of the
New Lease (excluding renewal options or any period which may be
omitted from the lease term through a right of cancellation granted to
the tenant), then EOPMC's leasing commission shall be reduced so that
the total leasing commission payable to EOPMC and any third party
shall equal six percent (6%) of the base rental to be paid over the
term of the New Lease (excluding renewal options or any period which
may be omitted from the lease term through a right of cancellation
granted to the tenant). If, as of the Closing Date, Seller shall have
paid any Tenant Inducement Costs or leasing commissions or New Lease
Costs for which Purchaser is responsible pursuant to the forgoing
provisions, Purchaser shall be charged, and Seller shall be credited,
for such amounts at Closing. For purposes hereof, the term "Tenant
Inducement Costs" shall mean any payments required under a Lease to be
paid by the landlord thereunder to or for the benefit of the tenant
thereunder which is in the nature of a tenant inducement, including
specifically, without limitation, tenant improvement costs or
allowances, lease buyout costs, moving, design, refurbishment and club
membership allowances. The term "Tenant Inducement Costs" shall not
include legal fees or loss of income resulting from any free rental
period; it being agreed that Seller shall bear the loss resulting from
any free rental period until the date of Closing and that Purchaser
shall bear such loss from and after the Closing Date.
(d) Set forth on EXHIBIT Q attached hereto is a list of
---------
capital projects (the "Capital Projects") that are presently occurring
at the Property. All costs attributable to such Capital Projects are
called "Capital Project Costs". The contracts that have been entered
into for the Capital Projects as of the date of this Agreement are
those Service Contracts that are listed under the heading
"Construction Contracts" on attached EXHIBIT C (the "Existing Capital
---------
Service Contracts"). Such Existing Capital Service Contracts comprise
a portion of the contracts necessary to complete the Capital Projects.
Any contracts necessary to complete the Capital Projects that have not
yet been entered into as of the date of this Agreement shall be
subject to the applicable provisions of Section 11.V. below with
respect to approval by Purchaser. As the work is ongoing, all amounts
in the columns in EXHIBIT Q entitled "Paid To Date" and "Incurred-Not
---------
Paid" are only approximations as of July 28, 1999, it being understood
that such amounts may fluctuate depending upon the amount of work that
has occurred since such date and amounts paid under contracts since
such date. Purchaser shall be responsible for the payment of all
Capital Project Costs. In the event that any such Capital Project
Costs have been paid by Seller as of the Closing Date, Purchaser shall
be charged and Seller shall be credited with any amounts previously
paid by Seller and Purchaser shall be responsible for payment of all
remaining Capital Project Costs after Closing.
(e) Non-Delinquent Rent (as hereinafter defined) collected
by Seller after Closing attributable to periods from and after Closing
shall be promptly remitted to Purchaser. Delinquent Rent (as
hereinafter defined) collected by Seller and/or Purchaser after the
date of Closing shall be delivered by the recipient as follows:
within fifteen
10
(15) days after the receipt thereof, Seller and Purchaser agree that
all Delinquent Rent received by Seller or Purchaser shall be applied
first to then current Rents, and then to Rents that are delinquent and
past due, in inverse order of maturity (that is, in the order of the
most recently past due Rent first, then the next most recent past due
Rent, etc.). At Closing, Seller shall deliver to Purchaser a schedule
of all past due but uncollected Rent and other sums owed by tenants
("Closing Delinquency Schedule"), and Purchaser shall include the
amount of such Rent and other sums in the first bills thereafter
submitted to the tenants in question after the Closing, and shall
continue to do so for six (6) months thereafter. Purchaser shall
promptly deliver to Seller a copy of each such xxxx submitted to
tenants. Seller retains the right to pursue those tenants identified
on EXHIBIT T attached hereto and such other tenants who become
---------
delinquent between the date of this Agreement and Closing and are also
set forth on the Closing Delinquency Schedule for payment of
delinquent Rent at any time after the six (6) month period after
Closing, except that Seller shall not be permitted to file suit to
evict the tenant or otherwise disturb its tenancy. As used herein, the
term "Non-Delinquent Rent" shall mean Rent paid by a tenant after
Closing who was current on all of its obligations to pay Rent as of
the Closing Date. As used herein, "Delinquent Rent" shall mean Rent
paid by a tenant after Closing who was listed on the Closing
Delinquency Schedule.
(f) Seller, as landlord under the Leases, is currently
collecting from tenants additional rent to cover taxes, insurance,
utilities, maintenance and/or other operating costs and expenses
incurred by the owner of the Property in connection with the
ownership, operation, maintenance and management of the Property (such
expenses, collectively "Expenses" and such collections, collectively
"Collections"). Collections received from tenants prior to the True
Up (as hereinafter defined) for the month in which Closing occurs
shall initially be prorated in the same manner as other Rents. After
Closing, Seller shall be entitled to retain Collections it has
received as of Closing, subject to the remaining provisions of this
Section 4.C.(ii)(f). Subsequent to Closing, but no later than May 1,
2000 (the "Reproration Date"), Purchaser shall calculate adjustments
for Expenses incurred and Collections received for the year of Closing
and shall prepare and present to Seller a calculation of the
Collections received and Expenses incurred by each of Seller and
Purchaser attributable to each party's period of ownership. The
parties shall make the appropriate adjusting payment between them
within 30 days after presentment to Seller of Purchaser's calculation
(the "True Up"). Either party may inspect the other's books and
records related to the Property to confirm the calculation.
1. Seller's allocable share of Collections for Leases in
effect as of the Closing Date shall be determined by multiplying
the total payments due from tenants for the 1999 calendar year
(that is, the sum of Collections paid or payable by tenants
during the 1999 calendar year, plus or minus year-end
adjustments) by a fraction, the numerator of which is the actual
Expenses paid by Seller (whether by direct payment by Seller or
by proration as provided in this Section 4.C.), and the
denominator of which is the total Expenses for calendar year
1999. In the event that, after such determination and as part of
the True Up: (1) the amount of Collections retained by Seller
for calendar year 1999 as provided above in this Section
4.C.(ii)(f) is less than the amount of Expenses paid by Seller
(whether by direct payment by Seller or by proration as provided
in this Section 4.C. above) with respect to 1999 and the landlord
under the Leases is entitled to recover such difference under the
terms of Leases, then
11
(y) to the extent that the Collections collected by Purchaser for
1999 exceeds the Expenses incurred by Purchaser for 1999,
Purchaser shall promptly remit to Seller its excess Collections
to the extent that the Collections retained by Seller are less
than the Expenses paid by Seller, and (z) Purchaser shall xxxx
such tenants for any remaining amounts owed to Seller after any
payment provided for in subclause (y) of this sentence, provide
Seller with copies of such bills upon issuance, and collect such
amounts on behalf of Seller and, upon receipt, remit such
collected amounts to Seller; and (2) the amount of Collections
collected by Seller for 1999 and retained by Seller as provided
above in this Section 4.C.(ii)(f) exceeds the amount of Expenses
paid by Seller (whether by direct payment by Seller or by
proration as provided in this Section 4.C.) with respect to 1999
then, to the extent Purchaser incurred Expenses for 1999 in
excess of Collections collected by Purchaser for 1999, Seller
shall promptly remit to Purchaser a portion of its excess
Collections to the extent that the Collections retained by
Purchaser are less than the Expenses paid by Purchaser and
thereafter, to the extent required under the terms of the Leases,
Seller shall promptly remit any remaining excess Collections to
the applicable tenants, provided that, if any such excess amounts
are otherwise payable to tenants owing Rent set forth on the
Closing Delinquency Schedule, prior to remitting any remaining
amounts to such tenants, Seller may offset the amounts due to
such tenants against Rents owing as of Closing to Seller, and
remitting any remaining amounts to Purchaser to be applied
against past due rents owed Purchaser with any remaining amounts
to be remitted by Purchaser to such tenants.
(g) Not later than the Reproration Date, either party shall be
entitled to a post-Closing adjustment for any incorrect proration or
adjustment provided written notice thereof is given to the other party
on or before the Reproration Date.
(h) Seller reserves the right to meet with governmental
officials and to contest any assessment or reassessment governing or
affecting Seller's obligations under this Section 4.C., and to attempt
to obtain a refund for any taxes previously paid. Seller shall retain
all rights with respect to any refund of taxes applicable to any
period prior to the Closing Date.
(i) In the event that Purchaser sells or otherwise conveys the
Property prior to the Reproration Date, Purchaser and any subsequent
owner shall continue to be obligated under this Section 4.C. Upon and
after such conveyance, Seller shall continue to be obligated only to
Purchaser under this Section 4.C.
(j) The provisions of this Section 4.C. shall survive Closing
for a period of one year after the Reproration Date.
D. Transaction Costs. Seller shall be responsible for and shall pay the
-----------------
base premium for the Title Policy to be issued to Purchaser at Closing, any
search fees, the cost of an "extended coverage" endorsement and such other
endorsements that Purchaser may reasonably require up to a maximum of
$2,500 for all such endorsements. Purchaser shall be responsible and pay
for (1) the cost to prepare Survey (subject to Section 3.B.(i) above), (2)
any State, County or local transfer taxes or documentary stamps (the
"Transfer Taxes") owed in connection with the Deed
12
(and Seller and Purchaser shall timely execute and deliver such forms and
returns as are necessary in connection therewith), (3) any mortgage taxes
or stamps, (4) all costs of any and all endorsements to the Title Policy in
excess of the $2,500 to be paid by Seller as provided in the first sentence
of this Section 4.D., and (5) all recording charges for recording the Deed.
Seller and Purchaser shall each pay one-half (1/2) of all escrow fees for
an escrow Closing at Escrowee's Chicago, Illinois office, not to exceed
$750. In addition, Purchaser and Seller shall each be responsible for the
fees of their respective attorneys, advisors, consultants and accountants.
E. Possession. Upon Closing, Seller shall deliver to Purchaser possession
----------
of the Property, subject only to the Permitted Exceptions.
5. CASUALTY LOSS AND CONDEMNATION
------------------------------
If, prior to Closing, the Property or any part thereof shall be taken by
eminent domain or condemned, or destroyed or damaged by fire or other casualty,
Seller shall promptly so notify Purchaser. In the event that either: (i) the
reasonable cost to restore the Property due to such damage or destruction is
greater than One Million Dollars ($1,000,000) (a "Material Casualty"), or (ii)
any material portion of the Real Property or the Office Buildings is taken or
condemned (a "Material Condemnation"), then Purchaser shall have the option to
terminate this Agreement by delivery of its written termination notice to Seller
within fifteen (15) days of Seller's written notice thereof. If (a) the
aforementioned casualty is not a Material Casualty, (b) the aforementioned
taking or condemnation is not a Material Condemnation, or (c) Purchaser does not
elect to terminate this Agreement pursuant to the provisions of the preceding
sentence (time being of the essence with respect to any such election), then
Seller and Purchaser shall consummate the transaction contemplated by this
Agreement without abatement of the Purchase Price and Purchaser shall be
entitled during the period following the Inspection Period and prior to Closing
to approve the terms of any property insurance settlement or the terms of any
settlement of any taking or condemnation case, such approval not to be
unreasonably withheld or delayed, and to receive at Closing the taking,
condemnation or property insurance proceeds (less any amounts applied against
costs incurred as a result of such occurrence) (it being understood that, in the
event that such property insurance proceeds have not yet been received as of
Closing, Purchaser may elect to receive an assignment of the right to such
proceeds or a credit for the amount of such proceeds with Seller pursuing
payment of such amounts from its insurer after Closing; provided, however, that
Purchaser may only elect to receive a credit for such amounts if the amounts
have been agreed upon with the insurer prior to Closing, the insurance policy
permits payment of a claim to a party that no longer owns the Property and,
after Closing, Purchaser shall cooperate with Seller and its insurers to
facilitate the processing of claims related to the casualty) plus a credit
against the Purchase Price in the amount of any uninsured loss (as to property
only) and any deductible payable by Seller under applicable property insurance,
and Seller shall, at Closing, execute and deliver to Purchaser all customary
proofs of loss, assignments of claims and other similar items. If Purchaser
elects to terminate this Agreement pursuant to the provisions of this Section 5.
and Purchaser is not in default under this Agreement, the Xxxxxxx Money shall be
returned to Purchaser by the Escrowee, in which event this Agreement shall,
without further action of the parties, become null and void and neither party
shall have any further rights or obligations under this Agreement except those
rights and obligations which expressly survive termination of this Agreement as
provided herein.
13
6. BROKERAGE
---------
Seller, pursuant to a separate written agreement (the "Broker Agreement"),
is obligated to pay upon the Closing of a sale to Purchaser (but not otherwise)
certain amounts to Xxxxx Lang LaSalle Financial & Corporate Services, Inc.
("Broker"). Seller shall indemnify and hold Purchaser harmless from and against
any and all claims of Broker related to any failure by Seller to pay Broker such
amounts in connection with the purchase and sale of the Property to Purchaser,
including, without limitation, reasonable attorneys' fees and expenses incurred
by Purchaser in connection with such claim. Purchaser represents and warrants to
Seller that Purchaser does not have any agreement with any broker or finder in
connection with the Property. Seller and Purchaser shall each indemnify and hold
the other harmless from and against any and all claims of all brokers and
finders (other than a claim by Broker against Seller of the type described in
the first sentence of this Section 6, which claim Seller shall be obligated to
indemnify Purchaser against as provided above in this Section 6) claiming by,
through or under the indemnifying party and in any way related to the sale and
purchase of the Property, this Agreement or otherwise, including, without
limitation, reasonable attorneys' fees and expenses incurred by the indemnified
party in connection with such claim. The provisions of this Section 6 shall
survive the Closing and delivery of the Deed or sooner termination of this
Agreement.
7. CLOSING DOES NOT OCCUR; DEFAULT AND REMEDIES; TERMINATION NOTICES; SELLER'S
---------------------------------------------------------------------------
RIGHT TO TERMINATE THE AGREEMENT
--------------------------------
A. No Default by Seller or Purchaser. In the event that the Closing fails
---------------------------------
to occur and such failure is not the result of a material default or
material breach by Seller or Purchaser of their respective obligations
hereunder (after the expiration of any applicable notice and cure
period(s)), then this Agreement shall terminate, in which event the Xxxxxxx
Money shall be returned to Purchaser and neither party hereto shall have
any rights, remedies or obligations hereunder except those that expressly
survive the termination of this Agreement.
B. Seller Default.
--------------
(i) Purchaser to Elect to Either Terminate or Seek Specific
-------------------------------------------------------
Performance. If (1) Seller is in material default or material breach of
-----------
its obligations under this Agreement after the expiration of any applicable
notice and cure period(s), (2) Purchaser is not otherwise in material
default or material breach hereunder, and (3) the Closing does not occur,
then, at Purchaser's option, either (x) the Xxxxxxx Money shall be returned
to Purchaser, in which event this Agreement shall be null and void, and
neither party shall have any rights or obligations under this Agreement, or
(y) upon notice to Seller not more than ten (10) days after the designated
Closing Date, and provided an action is filed within thirty (30) days
thereafter, Purchaser may seek specific performance of this Agreement, but
not damages (except for any damages permitted under Sections 7.B.(ii),
(iii) and (iv) below). Purchaser's failure to seek specific performance as
aforesaid shall constitute its election to proceed under clause (x) above.
In the event that Purchaser files an action to obtain specific performance
in accordance with this Section 7.B.(i) with an alternate request for
damages in accordance with Sections 7.B.(iii) or 7.B.(iv) below, as
applicable, and Purchaser is the prevailing party in such a specific
performance action and/or such a damages action after issuance of a final,
non-appealable order of a court of competent jurisdiction, Purchaser shall
be entitled to recover from Seller the reasonable costs and expenses
incurred by Purchaser to file such suit. In the event that Purchaser files
such an action and Purchaser is not the prevailing party in such a specific
performance and/or damages action after issuance of a final, non-appealable
order of a court of competent
14
jurisdiction, Seller shall be entitled to recover from Purchaser the
reasonable costs and expenses incurred by Seller to defend such suit. It is
understood that in the event that Purchaser obtains specific performance,
that Purchaser shall no longer have the right to seek alternate claims for
damage under Sections 7.B.(iii) and 7.B.(iv) below.
(ii) Specific Performance Not Available to Purchaser Because Seller
--------------------------------------------------------------
has Sold Property Prior to Contract Termination. In the event that
-----------------------------------------------
specific performance is not available to Purchaser in accordance with
Section 7.B.(i) above because Seller has, prior to the date designated
hereunder for Closing, sold or conveyed the Property in violation of this
Agreement and this Agreement has not theretofore been terminated in
accordance with any provision of this Agreement and Purchaser is not
otherwise in material default hereunder, Purchaser shall be entitled to
pursue a claim against Seller due to such sale or conveyance in an amount
equal to Seller's Profit (as hereinafter defined). As used herein, the
term "Seller's Profit" shall mean the amount determined by subtracting the
Purchase Price from the amount of net proceeds received by Seller from such
sale and conveyance. In addition, in the event that Purchaser files suit
to pursue such claim and Purchaser is the prevailing party after issuance
of a final, non-appealable order of a court of competent jurisdiction,
Purchaser shall be entitled to recover from Seller the reasonable costs and
expenses incurred by Purchaser to file such suit. In the event that
Purchaser files such an action and Purchaser is not the prevailing party in
such a suit after issuance of a final, non-appealable order of a court of
competent jurisdiction, Seller shall be entitled to recover from Purchaser
the reasonable costs and expenses incurred by Seller to defend such suit.
(iii) Specific Performance Not Available to Purchaser Because of a
------------------------------------------------------------
Bad-Faith Material Breach by Seller. In the event that specific
-----------------------------------
performance is not available to Purchaser in accordance with Section
7.B.(i) above because Seller has, in bad faith, materially breached its
obligations under this Agreement and such breach has not been cured within
the applicable notice and cure period(s) hereunder, Purchaser is not
otherwise in material default hereunder and the Closing has not occurred,
Purchaser shall be entitled to, in the same suit to seek specific
performance as provided in Section 7.B.(i) above, pursue an alternate claim
against Seller due to Seller's failure to perform in accordance with the
terms of this Agreement as a result of such bad faith, material breach,
such claim for damages to be for reimbursement of an amount equal to the
lesser of (1) Purchaser's actual damages, and (2) Five Hundred Thousand
Dollars ($500,000).
(iv) Specific Performance Not Available to Purchaser Because of a
------------------------------------------------------------
Material Breach by Seller not done in Bad Faith. In the event that
-----------------------------------------------
specific performance is not available to Purchaser in accordance with
Section 7.B.(i) above because Seller has materially breached its
obligations under this Agreement and (1) such material breach has not been
cured within the applicable notice and cure period(s) hereunder, and (2)
such material breach is not as a result of the bad faith of Seller,
Purchaser is not otherwise in material default hereunder and the Closing
has not occurred, Purchaser shall be entitled to, in the same suit to seek
specific performance as provided in Section 7.B.(i) above, pursue an
alternate claim against Seller due to Seller's failure to perform in
accordance with the terms of this Agreement as a result of such material
breach, such claim for damages to be for reimbursement of an amount equal
to the lesser of (1) Purchaser's actual damages, and (2) Three Hundred
Thousand Dollars ($300,000).
(v) Closing Occurs; Seller Has No Liability for Pre-Closing
-------------------------------------------------------
Breaches or Defaults. Notwithstanding anything in this Agreement to the
--------------------
contrary, in the event that Seller is in breach or default under its
obligations under this Agreement, Purchaser is aware of such breach or
default and/or such breach or default is set forth in a Pre-Closing
Disclosure or an Inspection
15
Period Disclosure and the Closing occurs, then Seller shall have no
liability or obligation to Purchaser with respect to such breach or
default.
C. Purchaser Default. If (1) Purchaser is in material default or material
-----------------
breach of its obligations under this Agreement, (2) Seller is not otherwise
in material default or material breach hereunder, and (3) the Closing does
not occur, the Xxxxxxx Money may be retained by Seller as liquidated and
agreed upon damages and as Seller's sole and exclusive remedy with respect
thereto other than those rights that survive a termination of this
Agreement as provided herein. If Purchaser is required to but does not
deposit with the Escrowee the Xxxxxxx Money as provided in Section 2(A)(i)
above, the sum of Three Hundred Thousand Dollars ($300,000) shall
nonetheless be recoverable by Seller from Purchaser as Xxxxxxx Money and
without prejudice to Seller's other rights and remedies. PURCHASER AND
SELLER ACKNOWLEDGE AND AGREE THAT (1) THE AMOUNT OF THE XXXXXXX MONEY IS A
REASONABLE ESTIMATE OF AND BEARS A REASONABLE RELATIONSHIP TO THE DAMAGES
THAT WOULD BE SUFFERED AND COSTS INCURRED BY SELLER AS A RESULT OF HAVING
WITHDRAWN THE PROPERTY FROM SALE AND THE FAILURE OF CLOSING TO OCCUR DUE TO
A MATERIAL DEFAULT OF PURCHASER UNDER THIS AGREEMENT; (2) THE ACTUAL
DAMAGES SUFFERED AND COSTS INCURRED BY SELLER AS A RESULT OF SUCH
WITHDRAWAL AND FAILURE TO CLOSE DUE TO A MATERIAL DEFAULT OF PURCHASER
UNDER THIS AGREEMENT WOULD BE EXTREMELY DIFFICULT AND IMPRACTICAL TO
DETERMINE; (3) PURCHASER SEEKS TO LIMIT ITS LIABILITY UNDER THIS AGREEMENT
TO THE AMOUNT OF THE XXXXXXX MONEY IN THE EVENT THIS AGREEMENT IS
TERMINATED AND THE TRANSACTION CONTEMPLATED BY THIS AGREEMENT DOES NOT
CLOSE DUE TO A MATERIAL DEFAULT OF PURCHASER UNDER THIS AGREEMENT; AND (4)
THE AMOUNT OF THE XXXXXXX MONEY SHALL BE AND CONSTITUTE VALID LIQUIDATED
DAMAGES.
IN ADDITION, IN THE EVENT THAT SELLER FILES SUIT TO PURSUE PAYMENT OF SUCH
XXXXXXX MONEY AMOUNT AND SELLER IS THE PREVAILING PARTY AFTER ISSUANCE OF A
FINAL, NON-APPEALABLE ORDER OF A COURT OF COMPETENT JURISDICTION, SELLER
SHALL BE ENTITLED TO RECOVER FROM PURCHASER THE REASONABLE COSTS AND
EXPENSES INCURRED BY SELLER TO FILE SUCH SUIT. IN THE EVENT THAT SELLER
FILES SUIT TO PURSUE SUCH CLAIM AND SELLER IS NOT THE PREVAILING PARTY
AFTER ISSUANCE OF A FINAL, NON-APPEALABLE ORDER OF A COURT OF COMPETENT
JURISDICTION, PURCHASER SHALL BE ENTITLED TO RECOVER FROM SELLER THE
REASONABLE COSTS AND EXPENSES INCURRED BY PURCHASER TO DEFEND SUCH SUIT.
PURCHASER INITIALS: SELLER INITIALS:
___________________ _________________
D. Cure Rights. Should either party be in breach of or default under this
-----------
Agreement, except as otherwise provided in this Agreement, the party in
breach or default shall have five (5) business days after written notice
from the other party to cure such breach. The Closing Date
16
shall be extended to the extent necessary to afford the party in breach or
default the full five (5) business day period within which to cure such
default or breach; provided, however, that in the event that the Purchaser
is in breach of its obligation to pay all or any portion of the Purchase
Price at Closing, Purchaser shall be deemed in material default hereunder
without the requirement that Seller provide written notice of same and, in
such event, Purchaser shall not be entitled to any period of time to cure
such breach.
E. Post-Closing Remedies. After Closing, Seller and Purchaser shall,
---------------------
subject to the terms and conditions of this Agreement (including, without
limitation, Section 11.Q. below), have such rights and remedies as are
available at law or in equity, except that neither Seller nor Purchaser
shall be entitled to recover from the other consequential or special
damages. The provisions of this Section 7. shall survive the Closing and
delivery of the Deed or sooner termination of this Agreement.
F. Seller's Right to Terminate the Agreement for Any Reason; Payment of
--------------------------------------------------------------------
Cancellation Fee. At any time prior to Closing, Seller shall have the
----------------
right, for any reason and exercisable in its sole and absolute discretion,
to terminate this Agreement by providing written notice to Purchaser of
such election to so terminate and paying Purchaser the Cancellation Fee (as
hereinafter defined). Purchaser, upon receipt of the Cancellation Fee,
shall execute an acknowledgement letter confirming its receipt of the
Cancellation Fee and that the Agreement is terminated and execution of same
shall be a condition precedent to Seller's disbursement of such
Cancellation Fee (a "Purchaser Acknowledgement"). In the event of a
termination of this Agreement in accordance with this Section 7.F., neither
party hereto shall have any rights, remedies or obligations hereunder
except those that survive the termination of this Agreement. As used
herein, the term "Cancellation Fee" shall mean (1) $450,000, if Seller
elects to terminate this Agreement in accordance with this Section 7.F.
prior to the date upon which the Inspection Period expires, (2) $550,000,
if Seller elects to terminate this Agreement in accordance with this
Section 7.F. at any time during the thirty (30) day period commencing upon
the date upon which the Inspection Period expires, (2) $650,000, if Seller
elects to terminate this Agreement in accordance with this Section 7.F. at
any time during the thirty (30) day period after the expiration of the
period described in subclause (1) of this sentence, and (3) $700,000, if
Seller elects to terminate this Agreement in accordance with this Section
7.F. at any time after the expiration of the period described in subclause
(2) of this sentence through the Closing Date.
PURCHASER AND SELLER ACKNOWLEDGE AND AGREE THAT (1) THE AMOUNT OF THE
CANCELLATION FEE MONEY IS A REASONABLE ESTIMATE OF AND BEARS A REASONABLE
RELATIONSHIP TO THE DAMAGES THAT WOULD BE SUFFERED AND COSTS INCURRED BY
PURCHASER AS A RESULT OF SELLER ELECTING TO TERMINATE THIS AGREEMENT IN
ACCORDANCE WITH THIS SECTION 7.F. PRIOR TO CLOSING; (2) THE ACTUAL DAMAGES
SUFFERED AND COSTS INCURRED BY PURCHASER AS A RESULT OF SUCH TERMINATION
WOULD BE EXTREMELY DIFFICULT AND IMPRACTICAL TO DETERMINE; (3) SELLER SEEKS
TO LIMIT ITS LIABILITY UNDER THIS AGREEMENT TO THE AMOUNT OF THE
CANCELLATION FEE IN THE EVENT THIS AGREEMENT IS TERMINATED IN ACCORDANCE
WITH THIS SECTION 7.F. PRIOR TO CLOSING; AND (4) THE AMOUNT OF THE
CANCELLATION FEE SHALL BE AND CONSTITUTE VALID LIQUIDATED DAMAGES.
17
G. Termination of Agreement; Termination Notices; Arbitration.
----------------------------------------------------------
(i) Termination; Termination Notice; Objection Notice; Arbitration
--------------------------------------------------------------
Notice. In the event that, prior to Closing, the Agreement shall have
------
terminated or been terminated in accordance with any provision hereof (any
such occurrence being referred to herein as a "Termination") and a party
hereto (the "Notifying Party") shall desire to notify the other party (the
"Receiving Party") of the occurrence of such Termination, the Notifying
Party shall provide a written notice of such Termination to the Receiving
Party setting forth the reason or reasons why the Notifying Party believes
that a Termination has occurred (any such notice being referred to herein
as a "Termination Notice"). A Termination Notice shall include, without
limitation: (i) a notice from Purchaser prior to the expiration of the
Inspection Period that it is electing to terminate the Agreement in
accordance with Section 8.A. below, (ii) a notice from Purchaser prior to
Closing in accordance with Section 8.B.(ii) below, (iii) a notice from
Purchaser prior to Closing in accordance with Section 8.C. below, and (iv)
a notice from Seller in accordance with Section 8.F. below. Purchaser shall
not be permitted to send an Objection Notice (as hereinafter defined) in
response to a Termination Notice from Seller in accordance with Section
7.F. above so long as Purchaser receives the Cancellation Fee and the
execution of a Purchaser Acknowledgement shall be conclusive evidence of
Purchaser's agreement that the Agreement is terminated. If the Receiving
Party does not agree that the Agreement has been terminated, it shall
provide a written notice to the Notifying Party within five (5) days of the
Receiving Party's receipt of the Termination Notice, setting forth the
reason or reasons why the Receiving Party believes that a Termination has
not occurred (any such notice being referred to herein as an "Objection
Notice"). The Receiving Party shall be deemed to have agreed that a
Termination has occurred if it does not send an Objection Notice to the
Notifying Party within such five (5) day period and, in such event, both
the Notifying Party and the Receiving Party shall be forever barred from
asserting any rights under the Agreement that do not expressly survive a
termination of this Agreement. Upon receipt of an Objection Notice, the
Notifying Party shall, within five (5) days of receipt of same, either: (1)
send a notice to the Receiving Party confirming its agreement that the
Agreement has not been terminated, in which event the Termination Notice
shall be null and void and the Agreement shall continue in accordance with
its terms, or (2) send a notice to the Receiving Party of the Notifying
Party's desire to arbitrate the question of whether a Termination has
occurred (an "Arbitration Notice") and the Designated Arbitrator (as
hereinafter defined) that the Notifying Party desires to use to Designated
Arbitrator and decide the Arbitration (as hereinafter defined). A copy of
the Arbitration Notice shall be sent to the Designated Arbitrator when sent
to the Receiving Party.
(ii) Arbitration. Any arbitration (an "Arbitration") pursuant to an
-----------
Arbitration Notice shall occur as provided in this Section 7.G.(ii). The
designated arbitrators for the Arbitration shall be either Ing Selden or
Xxxxx Xxxxxx (each, a "Designated Arbitrator" and collectively, the
"Designated Arbitrators"). The Designated Arbitrator that actually
administers and decides the Arbitration is referred to herein as the
"Arbitrator". In the event that the Designated Arbitrator set forth in the
Arbitration Notice is unable to serve as an arbitrator under this Section
7.G.(ii), the other Designated Arbitrator shall administer and decide the
Arbitration and the Notifying Party shall send a duplicate copy of the
Arbitration Notice to such other Designated Arbitrator within a reasonable
time after its receipt of notice that the Designated Arbitrator initially
selected is unable to serve. The sole job of the Arbitrator shall be to
determine whether or not a Termination shall have occurred as set forth in
the Termination Notice in controversy. The decision of the Arbitrator as to
the occurrence of a Termination shall be binding upon the parties hereto
and shall not be appealable to a court or any other body but
18
shall be enforceable by a court of competent jurisdiction. In the event
that the Arbitrator determines that a Termination has occurred, then (1)
the Agreement shall be deemed terminated as of the date set forth in the
Termination Notice and, in such event, both the Notifying Party and the
Receiving Party shall be forever barred from asserting any rights under the
Agreement that do not expressly survive a termination of this Agreement,
and (2) the Objecting Party shall be obligated to pay the Arbitrator all of
its fees and expenses in connection with the Arbitration. In the event that
the Arbitrator determines that a Termination has not occurred, then (y) the
Notifying Party shall be obligated to pay the Arbitrator all of its fees
and expenses in connection with the Arbitration and (z) the Agreement shall
continue in accordance with its terms.
(a.) Rules of Arbitration. Prior to agreeing to serve as an
--------------------
Arbitrator, a Designated Arbitrator shall be required to confirm in writing
that no social or business relationship or conflict exists between the
Designated Arbitrator and the Purchaser or Seller, or with counsel for
Seller or Purchaser. If neither of the Designated Arbitrators are able to
serve as a result of the foregoing or any other reason and the parties are
otherwise unable to agree on the selection of an alternate arbitrator, an
arbitrator shall be appointed by unanimous agreement of both Designated
Arbitrators. The purpose of this Section 7.G.(ii) is to obtain the
speediest resolution of whether or not a Termination has occurred in the
event of an Objection Notice and, accordingly, all parties shall cooperate
in good faith to obtain an arbitration determination within thirty (30)
days after delivery of an Arbitration Notice. The Arbitration shall be
conducted in accordance with the expedited commercial arbitration rules of
the American Arbitration Association, modified as follows: (i) the parties
shall have the right to not more than two (2) depositions each which shall
not exceed four (4) hours in length per deposition and one (1) reasonable
set of document requests each; (ii) the arbitration shall be fully and
finally concluded within twenty-three (23) days after delivery of an
Arbitration Notice; (iii) the Arbitrator shall render his or her decision
within seven (7) days of the Arbitration, which decision need not set forth
the Arbitrator's reasoning for his or decision, but simply whether or not
the Agreement has or has not been terminated in accordance with its terms
as set forth in the Termination Notice; (iv) the parties shall cooperate
with each other in order that discovery shall not delay the commencement
and conclusion of the Arbitration within the twenty-three (23) day period;
and (v) the Arbitration shall not exceed eight (8) hours in length and
shall be conducted in one (1) day.
8. CONDITIONS PRECEDENT
--------------------
A. Inspection Period. Subject to Sections 11.G. and 11.K.(i) below,
-----------------
Purchaser and its agents, employees and/or contractors shall have until
5:00 p.m. (Chicago, Illinois time) on the thirtieth (30/th/) day following
the date of the receipt by Purchaser of all of the last of the items set
forth in Section 8.A.(i) below (such period of time being referred to
herein as the "Inspection Period") within which to enter the Real Property
and the Office Buildings to inspect the Property and conduct such tests,
surveys and inspections of the Property ("Inspections") and review the
title commitment, the Survey and the items described in Section 8.A.(i) and
(ii) below and such other matters and data as Purchaser deems reasonably
necessary or appropriate. If Purchaser determines that the Property is not
suitable for its purposes (as determined in its sole and absolute
discretion) and notifies Seller in writing of such decision within the
Inspection Period, then the Xxxxxxx Money shall be returned to Purchaser,
this Agreement shall be null and void, Purchaser shall have no further
rights with respect to the Property and neither party shall have any
further rights or obligations under this Agreement except those rights or
obligations that expressly survive termination of this Agreement as
provided herein. Purchaser's failure to
19
object in writing to Seller within the Inspection Period as provided in the
preceding sentence shall be a deemed waiver by Purchaser of the condition
contained in this Section 8.A. In the event of such a deemed waiver,
Purchaser shall be deemed to have acknowledged and agreed that it had an
opportunity to inspect the Property and all Disclosures (as defined in
Section 11.H. below) and make such other inquiries and investigations and
obtain such reports and analyses it deemed adequate in connection with its
decision to purchase the Property, and, as a result thereof, Purchaser
shall be deemed to have agreed that, except as specifically set forth in
this Agreement, it shall purchase the Property in its "AS IS, WHERE IS"
condition, subject to ordinary wear and tear and as more particularly
provided in Section 11.H. below. In the event that Purchaser does not
terminate the Agreement as aforesaid, it may continue to perform non-
invasive, non-intrusive Inspections through Closing, subject to the
provisions of Sections 11.G. and 11.K. below.
(i) Inspection Period Deliveries to Purchaser. As soon as practicable
-----------------------------------------
after execution of this Agreement by all parties signatory hereto, but no
later than the fifth (5/th/) business day after such execution date, Seller
at its expense shall furnish to Purchaser the following:
a. Title. A copy of Seller's owner's policy or policies of
-----
title insurance for the Real Property in Seller's possession or a copy
of the Title Commitment.
b. Leases. A legible copy of each of the Leases.
------
c. Service Contracts. A legible copy of each of the Service
-----------------
Contracts.
d. Environmental Reports. A legible copy of each of the reports
---------------------
set forth on EXHIBIT P attached hereto.
---------
e. Notices from Tenants to Landlord. A legible copy of any
--------------------------------
notice of default received from a tenant that is described on EXHIBIT
-------
V attached hereto.
-
f. Notices to Tenants from Landlord. A legible copy of any
--------------------------------
notice of default provided to a tenant that is described on EXHIBIT W
---------
attached hereto.
g. Notices of Violations of Law. A legible copy of any notice
----------------------------
of a violation of law that is described on EXHIBIT X attached hereto.
---------
The commencement of the Inspection Period shall not be delayed as a
result of any document provided in Sections 8.A.(i)a. through 8.A.(i)(g)
above omitting an immaterial portion of the document (such as a page or two
of text or an immaterial exhibit or schedule), provided that Seller
provides Purchaser with the missing items, if in Seller's possession,
reasonably promptly after written request for same from Purchaser. Also, in
the event a material portion of any document is illegible due to Seller's
copy of the document also being illegible, Seller shall not be in default
hereunder as a result of such illegible copy and Purchaser's sole and
exclusive remedy for such failure to provide legible copies of all such
documents shall be to terminate this Agreement by written notice to Seller
within five (5) business days after its receipt of such illegible document.
In the event of such termination, the Xxxxxxx Money shall be returned to
Purchaser and neither party hereto shall have any further rights, remedies
or obligations
20
hereunder except such rights, remedies or obligations that expressly
survive a termination of this Agreement.
(ii) Inspection Period Management Office Documents. As soon as
---------------------------------------------
practicable after execution of this Agreement by all parties signatory
hereto, but no later than the fifth (5/th/) business day after such
execution date, Seller shall make available for Purchaser's review at the
on-site management office for the Property, the following:
a. Plans, Manuals and Drawings. All building plans, manuals and
---------------------------
drawings for the Property.
b. Certificates, Permits and Licenses. All presently-effective
----------------------------------
certificates, permits or licenses issued by governmental authorities
for the Property.
c. Real Estate Tax Bills. The most recently-issued real estate
---------------------
tax bills and assessment notices.
d. Utility Bills. Utility xxxx for the portion of the Property
-------------
for which Seller is responsible for paying for such utilities.
e. Operating Statements. If available, copies of the 1997 and
--------------------
1998 operating statements for the Property and the books and records
reflecting actual property operations for the years 1997 and 1998 and
the period January, 1999 through June, 1999.
f. Construction Contracts; Service Contracts. All plans, bids,
-----------------------------------------
contracts and other documents referred to in or attached to those
Service Contracts that are construction contracts.
g. Pending or Proposed Construction Contracts or Tenant
----------------------------------------------------
Inducements. All plans and bids for pending or proposed tenant
-----------
inducement costs or Capital Projects.
h. Tenant Correspondence. Any and all tenant correspondence and
---------------------
files related to the Expenses and Collections.
The items set forth above shall be provided to Purchaser to the extent
they are in Seller's possession at the on-site management office for the
Property. Seller believes that, to the Actual Knowledge of Seller, to the
extent same are in Seller's possession, the items set forth in Sections
8.B.(ii)a. through h. above are located at the on-site management office
for the Property. Such items shall be available at the Property upon notice
to Seller in accordance with, and subject to, the provision of Section
11.G. below with respect to inspections of the Property by Purchaser. In
the event that Purchaser, after its review of the files and information
located at Property, reasonably believes that any of such items exist but
are not available at such management office, Purchaser shall provide Seller
with a written request setting forth the items that Purchaser reasonably
believes to exist that are not located at such office. Upon such receipt,
Seller shall review the active files (that is, those files that are
presently used by Seller and/or EOPMC to operate the Property) pertaining
to the Property located at EOPMC's Chicago, Illinois office in order to
locate such items or, in the alternative, provide Purchaser with a notice
stating that Seller is not going to review such files but that Seller
shall, upon reasonable prior notice from
21
Purchaser, make such files available to Purchaser in EOPMC's Chicago,
Illinois office so that Purchaser may review such files to determine if
such items are available. If Seller locates same, it shall provide
Purchaser with a copy of same. In the event that Seller is unable to locate
same or Purchaser is unable to locate same after its review of the files or
Purchaser does not elect to review such files after written notice from
Seller, Seller shall have no further obligation with respect thereto and
Purchaser shall have no rights hereunder related to the fact that Seller
was unable to locate such items.
B. Estoppel Certificates.
---------------------
(i) It shall be a condition precedent to Purchaser's obligation to
close the purchase and sale transaction contemplated in this Agreement that
Purchaser shall have received, at Closing, estoppel certificates
(individually, an "Estoppel Certificate" and collectively, the "Estoppel
Certificates") dated as of a date no more than forty-five (45) days prior
to Closing, from tenants occupying not less than eighty percent (80%) of
the net rentable square footage of space at the Property actually leased as
of the Closing Date, specifically including within such 80% Estoppel
Certificates from all such tenants occupying Leases demising 3,000 or more
rentable square footage of space at the Property as of the end of the
Inspection Period pursuant to valid and existing Leases and in form and
content as set forth herein. The Estoppel Certificates executed by tenants
shall be substantially in the form of EXHIBIT G attached hereto (the "Form
---------
Tenant Estoppel Certificate"), except that an Estoppel Certificate shall be
deemed an acceptable Estoppel Certificate for purposes of this Section
8.B.(i) if: (1) it contains the qualification by the tenant of any
statement as being to the best of its knowledge or as being subject to any
similar qualification, and/or (2) it contains any tenant objection to
addressing or certifying the Estoppel Certificate to Purchaser's mortgage
lender, if any, or is not addressed or certified to such mortgage lender
(it being acknowledged that Seller shall provide Estoppel Certificates to
tenants addressed to any such mortgage lender), and/or (3) it is in a form
required by the applicable Tenant's Lease, and/or (4) it contains
immaterial modifications to, or omissions of information, in the Form
Tenant Estoppel Certificate (the aforesaid acceptable Estoppel Certificates
to be delivered are collectively referred to as the "Required Estoppel
Certificates").
a. If (1) information disclosed in an Estoppel Certificate is
in material conflict with the corresponding information set forth is
such tenant's Lease, or (2) such tenant alleges a material default by
Seller, or (3) such tenant alleges a material right of offset against
payment of rent other than as disclosed in any Inspection Period
Disclosures (as hereinafter defined) (with "material" meaning for
purposes of this sub-clause (3) the lesser of Rent payable under the
Lease for the 12 months after the month of Closing and $5,000), then
such Estoppel Certificate shall not be acceptable under this Section
8.B.(i), subject, however, to Section 8.B.(iii) below.
b. Seller shall be obligated to exercise reasonable efforts to
obtain Estoppel Certificates from the applicable tenants. As used in
the preceding sentence, "reasonable efforts" shall mean delivery of an
Estoppel Certificate to a tenant and two (2) follow-up requests either
in person, by telephone or in writing with the tenant for the
execution and return of the Estoppel Certificate in a timely fashion.
(ii) In the event that Seller is unable to provide to Purchaser the
Required Estoppel Certificates at Closing as provided above, Purchaser may
either: (x) elect not to purchase the
22
Property, in which event this Agreement shall be null and void, the
Escrowee shall promptly return the Xxxxxxx Money to Purchaser and
thereafter neither Seller nor Purchaser shall have any further rights or
obligations under this Agreement, other than those rights and obligations
which expressly survive termination of this Agreement; or (y) elect to
purchase the Property notwithstanding Seller's inability to provide the
Required Estoppel Certificates, in which event Seller shall not be
obligated to provide any additional Estoppel Certificates to Purchaser
after Closing. Notwithstanding the foregoing to the extent Seller is unable
to obtain all of the required Estoppel Certificates from tenants, Seller
shall be entitled, at its option, to substitute "Landlord Certificates"
therefor substantially in the form of EXHIBIT G attached hereto. Seller's
---------
liability under any Landlord Certificate shall terminate upon the sooner
of: (i) two hundred seventy (270) days from the Closing Date, (ii) when
Purchaser subsequently receives an Estoppel Certificate for the applicable
tenant, or (iii) when Purchaser receives the Required Estoppel
Certificates. If Purchaser receives an estoppel certificate which contains
some, but not all of the matters set forth in the Form Tenant Estoppel
Certificate after taking into account the provisions of the last sentence
of Section 8.B.(i) above (a "Partial Certificate"), and Seller provides a
Landlord Certificate for such tenant, then (i) if the Partial Certificate
is received prior to Closing, the Landlord Certificate may omit matters
contained in the Partial Certificate and (ii) if the Partial Certificate is
received after Closing, the Landlord Certificate shall cease to survive as
to the matters contained in the Partial Certificate. The provisions of this
Section 8.B.(ii) shall survive the Closing and delivery of the Deed.
(iii) Notwithstanding anything in this Agreement to the contrary, if
any Estoppel Certificates contain any of the items set forth in Section
8.B.(i)a. above and (1) the existence or the substance of such items were
contained in any Inspection Period Disclosures (as defined in Section 9.B.
below), or (2) Purchaser elects that Closing occur notwithstanding the
existence of such items, then such Estoppel Certificates shall be deemed
acceptable for purposes of this Section 8.B., notwithstanding the existence
of such items and Seller shall have no liability to Purchaser hereunder
with respect to the existence of such items. The provisions of this Section
8.B.(iii) shall survive the Closing and delivery of the Deed.
C. Accuracy of Seller's Representations. It shall be a condition
------------------------------------
precedent to Purchaser's obligation to close the purchase and sale
transaction contemplated in this Agreement that each of Seller's
representations set forth in Section 9.A. below shall be true and correct
in all material respects as of Closing, as modified by any Inspection
Period Disclosures (as defined in Section 9.B. below). In the event that
Seller makes any Pre-Closing Disclosures (as defined in Section 9.B. below)
to Purchaser, Purchaser shall have the right to terminate this Agreement
and receive a refund of the Xxxxxxx Money by delivering written notice
thereof to Seller on or before the earlier of Closing or the fifth (5th)
business day after Purchaser receives written notice of such Pre-Closing
Disclosure. If Purchaser does not terminate this Agreement pursuant to its
rights under this Section 8.C., then such representations shall be deemed
modified to conform them to the Inspection Period Disclosures and the
Pre-Closing Disclosures. The provisions of this Section 8.C. shall survive
the Closing and delivery of the Deed or sooner termination of this
Agreement.
D. Seller Performance. It shall be a condition precedent to Purchaser's
------------------
obligation to close the purchase and sale transaction contemplated in this
Agreement that Seller shall have materially performed in a timely fashion
all of its obligations under this Agreement to be performed prior to
Closing. The provisions of this Section 8.D. shall survive the Closing and
delivery of the Deed or sooner termination of this Agreement.
23
E. Owner's Title Insurance Policy. It shall be a condition precedent to
------------------------------
Purchaser's obligation to close the purchase and sale transaction
contemplated in this Agreement that the Title Insurer deliver an owner's
policy of title insurance (or marked-up commitment for same) in the amount
of the Purchase Price and subject to the Permitted Exceptions (the "Title
Policy") at Closing.
F. Accuracy of Purchaser's Representations; Purchaser Performance. It
--------------------------------------------------------------
shall be a condition precedent to Seller's obligation to close the purchase
and sale transaction contemplated in this Agreement that (1) each of
Purchaser's representations set forth in Sections 10.A. and 10.B. below
shall be true and correct in all material respects as of Closing, and (2)
Purchaser shall have materially performed all of its obligations under this
Agreement to be performed prior to Closing. In the event that any of
Purchaser's representations set forth in Sections 10.A. and 10.B. below are
not true and correct as aforesaid, Seller shall have the right to terminate
this Agreement by delivering written notice to Purchaser on or before the
Closing. The provisions of this Section 8.F. shall survive the Closing and
delivery of the Deed or sooner termination of this Agreement.
G. Waiver(s) of Conditions Precedent. Any condition precedent to the
---------------------------------
Closing hereunder may be waived by the party for whose benefit such
condition exists (such election being at the sole and absolute discretion
of such party), with any such condition being deemed waived in the event
that the Closing occurs and provided further that, in such event, the other
party shall have no liability to the waiving party related to the matter(s)
so waived.
9. SELLER'S REPRESENTATIONS AND COVENANTS
--------------------------------------
A. Representations. Seller represents to Purchaser that, as of the date
---------------
of this Agreement:
(i) Organization; Authority. Seller is a limited partnership, duly
-----------------------
organized and in good standing under the laws of the State of Florida.
Seller has the power and authority under Seller's partnership agreement
("Seller's Organizational Documents") to sell, transfer, convey and deliver
the Property to be sold and purchased hereunder, and all action and
approvals required thereunder have been duly taken and obtained in order to
sell, transfer, convey and deliver the Property as aforesaid.
(ii) No Breach. The execution and delivery of this Agreement, the
---------
consummation of the transactions contemplated herein and fulfillment of the
terms hereof will not result in a breach of any of the terms or provisions
of, or constitute a default under, any provision of Seller's Organizational
Documents or any applicable law, statute, regulation, ordinance or judicial
or administrative decision applicable to Seller and of which Seller has
knowledge.
(iii) Condemnation. Seller has not received from any governmental
------------
authority any written notice of any pending condemnation or taking by
eminent domain of the Property or any portion thereof.
(iv) Litigation. Except as set forth on EXHIBIT I attached hereto,
---------- ---------
Seller has not been served with written notice of and is not party to any
material litigation which is still pending with respect to Seller's
ownership or operation of the Property which will affect the Property after
Closing.
24
(v) Rent Roll. Attached hereto as EXHIBIT N is a list (the "Rent
--------- ---------
Roll") setting forth the following information, which, to the Actual
Knowledge of Seller (as hereinafter defined), is true and correct as of the
date of this Agreement: (1) the name of each tenant occupying space and/or
party to each of the Leases as of the date of this Agreement, (2) the Suite
number(s) occupied (or to be occupied, with respect to those tenants who
have not yet taken possession of the space demised under their Lease) by
each such tenant, (3) the monthly base rent and estimated operating expense
pass-throughs payable by each tenant with respect to the month of July,
1999, (4) the approximate square footage demised under the particular
tenant's Lease, (5) the amount of all unapplied Security Deposits held by
Seller with respect to the Leases as of the date hereof, (6) the expiration
dates of the current Lease terms, and (7) the monthly storage rent payable
by each tenant with respect to the month of July, 1999, if such tenant has
a separate storage space.
(vi) Violations of Law. Except as set forth on EXHIBIT X attached
----------------- ---------
hereto, to the Actual Knowledge of Seller, Seller has not received any
written notices from governmental agencies or instrumentalities of material
violations of law by the Property which have not been cured prior to the
date hereof.
(vii) Notices of Landlord Defaults from Tenants. Except as set forth
-----------------------------------------
on EXHIBIT V attached hereto, to the Actual Knowledge of Seller, Seller has
---------
not received any written notices from tenants under the Leases of any
material defaults by Seller, as landlord under the Leases, which have not
been cured as of the date hereof.
(viii) Notices of Tenant Defaults from Landlord. Except as set forth
----------------------------------------
on EXHIBIT W attached hereto, to the Actual Knowledge of Seller, Seller has
---------
not served any tenants under the Leases of any material defaults by the
tenants under the Leases which have not been cured as of the date hereof.
(ix) Brokerage Commissions. To the Actual Knowledge of Seller,
---------------------
except for any New Lease Costs payable after the date hereof, EXHIBIT S
---------
attached hereto sets forth all leasing commissions payable by the owner of
the Property on or after the date hereof in connection with the Property.
(x) Contracts to Sell. As of the date hereof, Seller is not party
-----------------
to any other contract to sell the Property which is still in force and
effect.
(xi) Leases. To the Actual Knowledge of Seller, the Leases to be
------
delivered to Purchaser in accordance with Section 8.A.(i)b. above shall be
true and correct copies of such Leases.
When used in this Agreement, the term "Actual Knowledge of Seller"
shall mean and be limited to the actual (and not imputed, implied or
constructive) current actual knowledge of Xxxxxx Field, Vice President -
Finance of First Capital Financial Corporation, after Inquiry (as
hereinafter defined). As used herein, "Inquiry" means that Seller has
delivered a copy of this Section 9.A. to Xxxxx Xxxxxxxx of EOPMC (Xx.
Xxxxxxxx being the employee of EOPMC responsible for overseeing the on-site
staff in the management office of the Office Buildings), requesting that
Xx. Xxxxxxxx confirm in writing, and that he has confirmed in writing, that
to his actual (and not imputed, implied or constructive knowledge) current
knowledge the
25
representations of this Section 9.A. that are qualified as to the Actual
Knowledge of Seller are accurate. Notwithstanding anything herein to the
contrary, neither Xxxxxx Field nor Xxxxx Xxxxxxxx shall (whether prior to
or after Closing) have any personal liability or obligation whatsoever with
respect to any matters set forth in this Agreement or with respect to any
of Seller's representations herein being or becoming untrue, inaccurate or
incomplete in any respect. Any knowledge or notice given to any of Seller's
other agents, servants, representatives or employees shall not be imputed
to Seller.
B. Representations Remade. At Closing, Seller shall be deemed to remake
----------------------
and restate the representations set forth in Section 9.A. and as set forth
in the Updated Rent Roll except that the representations shall be updated:
(i) by Seller delivering written notice to Purchaser to reflect any fact,
matter or circumstance which Seller's Chicago, Illinois representatives
become aware of that would make any of Seller's representations contained
in Section 9.A. untrue or incorrect in any material respect, (ii) to
reflect any Disclosures prior to the Inspection Period, (iii) to reflect
any statements or allegations in Estoppel Certificates that a default or
potential default exists on the part of Seller under the respective Leases
in question not previously disclosed to Purchaser that would otherwise make
any of Seller's representations in Section 9.A. or the Updated Rent Roll
untrue in any material respect or to reflect any of the other matters
described in Section 8.B.(i)a. above, and (iv) to reflect Purchaser's
actual knowledge, prior to the end of the Inspection Period, of facts
inconsistent with or different from the representations set forth herein
(items (i) and (iii) being collectively referred to herein as the "Pre-
Closing Disclosures" and items (ii) and (iv) being collectively referred to
herein as the "Inspection Period Disclosures").
C. Survival. The representations of Seller set forth in Section 9.A.,
--------
subject to modifications thereto as provided in Section 9.B. and Section
9.C.(i) below, shall survive the Closing and the delivery of the Deed for a
period of two hundred seventy (270) days from the Closing Date. In
addition, the certification of Seller set forth in the Updated Rent Roll
and the certification of the Leases by Seller in accordance with Section
4.B.(i)(q) above shall, subject to Section 8.B. above, Section 9.E. below
and Section 9.C.(i) below, survive the Closing and delivery of the Deed for
a period of two hundred seventy (270) days from the Closing Date. Notice
of any claim as to a breach of any such representations must be made to
Seller prior to the expiration of such two hundred seventy (270) day period
or it shall be deemed a waiver of the right to assert such claim.
(i) Representations Personal to Purchaser; Sale of Property. Any
-------------------------------------------------------
rights to pursue Seller for a breach of any of Seller's representations
under this Section 9. are personal to the Purchaser hereunder and may not
be assigned to, or relied upon, by any other party. In the event that
Purchaser sells or otherwise conveys the Property prior to the expiration
of the two hundred seventy (270) day period described in this Section 9.C.,
Seller shall have no liability to Purchaser for any damages that Purchaser
may incur under its agreement(s) with the party purchasing or otherwise
receiving a conveyance of the Property from Purchaser.
D. Defaults by tenants under Leases and vendors under Service Contracts.
--------------------------------------------------------------------
Seller does not represent that any particular Service Contract will be in
force or effect as of the Closing or that tenants under Leases or the
parties to the Service Contracts will not be in default under their
respective Leases or Service Contracts, and neither the existence of any
default by any tenant under its Lease nor the default of any party under
any Service Contract shall affect the obligations of Purchaser hereunder;
provided, however, the foregoing shall not affect the
-------- -------
26
conditions contained in Sections 8.B., 8.C. or 8.D. above. The provisions
of this Section 9.D. shall survive the Closing and delivery of the Deed.
E. Estoppel Certificates Supersede Representations. In the event that an
-----------------------------------------------
Estoppel Certificate is received from a tenant (before or after Closing)
which confirms the accuracy of the representations made in Section 9.A. (as
modified as provided in Section 9.B.) or the certification set forth in the
Updated Rent Roll, then the representations in Section 9.A. and the
certification in the Updated Rent Roll with respect to the corresponding
Lease (as modified as provided in Section 9.B.) shall be deemed to be
superseded by such Estoppel Certificate (and, in such event, Seller shall
no longer have any liability hereunder with respect to the portion of the
representation superseded). The provisions of this Section 9.E. shall
survive the Closing and delivery of the Deed.
F. Operation of Property. Seller hereby covenants and agrees with
---------------------
Purchaser that:
1. Between the date of this Agreement and the earlier of
Closing Date or the termination of this Agreement and except as
permitted under Sections 11.V. and 11.X. below, Seller shall not enter
into any new Service Contracts, or cancel, materially modify or renew
any existing Service Contracts, without the prior written consent of
Purchaser, which consent shall not be unreasonably withheld or
delayed, unless such new Service Contracts are cancelable by Seller
prior to Closing without any penalty or other obligations imposed upon
Purchaser. If Purchaser fails to respond to such a request for consent
within five (5) business days after receipt of the request, such
consent shall be deemed given and, in such event, such contract shall
be a "Service Contract" hereunder and Purchaser shall be obligated to
assume such Service Contract at Closing in accordance with Section
11.M. below.
2. Between the date of this Agreement and the earlier of the
Closing Date or termination of this Agreement, Seller shall maintain
the liability and casualty insurance coverage with respect to the
Property in effect as of the date of this Agreement.
3. Between the date of this Agreement and the earlier of the
Closing Date or termination of this Agreement, Seller shall operate
the Property in the normal course of Seller's business and maintain
the Property in the same condition as of the date of this Agreement,
ordinary wear and tear excepted and subject to Section 5. above and
Section 4.C.(ii)(d) above. Notwithstanding anything in the preceding
sentence to the contrary, in no event shall Seller be required to make
any capital improvements to the Property other than those set forth in
Section 4.C.(ii)(d) above or expend, in the aggregate, in excess of
$25,000 for repairs (the extent and scope of which shall be determined
by Seller in its reasonable discretion) other than those set forth in
Section 4.C.(ii)(d) above or in connection with any work required
under Leases.
4. Between the date of this Agreement and the earlier of the
Closing Date or termination of this Agreement, Seller shall not send
bills to tenants invoicing tenants for Rent payable more than one
month in advance.
5. Between the date of this Agreement and the earlier of the
Closing Date or termination of this Agreement, neither Seller nor any
representatives or agents of
27
Seller (including Broker) shall solicit offers from third parties to
purchase the Property or enter into negotiations or agreements to sell
or convey the Property except for any agreements to convey any portion
of the Property pursuant to Section 5. above.
10. PURCHASER'S REPRESENTATIONS
---------------------------
A. Organization; Authority. Purchaser is an Alabama corporation, duly
-----------------------
organized and in good standing under the laws of the State of Alabama.
Purchaser has the power and authority under Purchaser's Articles of
Incorporation and By-Laws ("Purchaser's Organizational Documents") to
purchase the Property to be sold and purchased hereunder, and all actions
and approvals required thereunder have been duly taken and obtained in
order to execute this Agreement, carry out Purchaser's obligations
hereunder and acquire the Property as contemplated herein.
B. No Breach. The execution and delivery of this Agreement, the
---------
consummation of the transactions contemplated herein and the fulfillment of
the terms hereof will not result in a breach of any of the terms or
provisions of, or constitute a default under, any provision of Purchaser's
Organizational Documents.
C. Representations Remade. At Closing, Purchaser shall be deemed to
----------------------
remake and restate the representations set forth in Sections 10.A. and
10.B. above.
D. Survival. The representations of Purchaser as set forth in Sections
--------
10.A. and 10.B.above shall survive the Closing and the delivery of the Deed
for a period of two hundred seventy (270) days from the Closing Date.
Notice of any claim as to a breach of any such representations must be made
to Purchaser prior to the expiration of such two hundred seventy (270) day
period or it shall be deemed a waiver of the right to assert such claim.
11. MISCELLANEOUS
-------------
A. Entire Agreement. All understandings and agreements heretofore had
----------------
between Seller and Purchaser with respect to the Property are merged in
this Agreement, which together fully and completely express the agreement
of the parties. Purchaser further acknowledges that, except as expressly
provided in this Agreement and the Settlement Agreement, neither Seller nor
any agent or representative of Seller has made, and Seller is not liable
for or bound in any manner by, any express or implied warranties,
guaranties, promises, statements, inducements, representations or
information pertaining to the Property. In event of a conflict between the
terms and provisions of this Agreement and Settlement Agreement, the terms
and provisions of this Agreement shall control. The provisions of this
Section 11.A. shall survive the Closing and delivery of the Deed or sooner
termination of this Agreement.
B. No Assignment. Except for an assignment of this Agreement prior to
-------------
Closing to a Permitted Assignee (hereinafter defined), neither this
Agreement nor any interest hereunder shall be assigned or transferred by
Purchaser without the written consent of Seller, which consent may be
withheld in the sole and absolute discretion of Seller. As used herein,
"Permitted Assignee" shall mean a corporation, partnership or limited
liability company of which Boardwalk Management Corporation or a Boardwalk
Affiliate (as hereinafter defined) is one of the owners of the shares of
stock, partnership interests or membership interests, as applicable, of
such entity and such ownership represents at least a twenty percent (20%)
ownership interest in such entity.
28
As used herein, a "Boardwalk Affiliate" shall mean either Xxxxxx
Xxxxxxxxxx, his wife, Xxxxxx Xxxxxxxxxx, or an entity or entity owned by
either or both of Xxxxxx Xxxxxxxxxx or Xxxxxx Xxxxxxxxxx. Upon an
assignment by Boardwalk Management Corporation to a Permitted Assignee or
upon any other assignment consented to by Seller, such assignee shall be
deemed to have assumed all of the obligations of Boardwalk Management
Corporation, as "Purchaser" hereunder, and, from and after the date of such
assignment, "Purchaser" shall mean such assignee. Boardwalk Management
Corporation shall continue to be liable under this Agreement upon any such
assignment. At any time subsequent to the expiration of the two hundred
seventy (270) day period described in Section 9.C. above, Seller may assign
or otherwise transfer its interest under this Agreement. As used in this
Agreement, the term "Seller" shall be deemed to include any assignee or
other transferee of any Seller. Upon any such transfer by a Seller, such
Seller shall be relieved of any subsequently accruing liability under this
Agreement. Subject to the foregoing, this Agreement shall inure to the
benefit of and shall be binding upon Seller and Purchaser and their
respective successors and assigns. The provisions of this Section 11.B.
shall survive the Closing and delivery of the Deed or sooner termination of
this Agreement.
C. Amendments. This Agreement shall not be modified or amended except in
----------
a written document signed by Seller and Purchaser. The provisions of this
Section 11.C. shall survive the Closing and delivery of the Deed or sooner
termination of this Agreement.
D. Time of the Essence. Time is of the essence of this Agreement. The
-------------------
provisions of this Section 11.D. shall survive the Closing and delivery of
the Deed or sooner termination of this Agreement.
E. Governing Law. This Agreement shall be governed and interpreted in
-------------
accordance with the laws of the State of Alabama. The provisions of this
Section 11.E. shall survive the Closing and delivery of the Deed or sooner
termination of this Agreement.
F. Notices. All notices, requests, demands or other communications
-------
required or permitted under this Agreement shall be in writing and
delivered (i) personally, (ii) by certified mail, return receipt requested,
postage prepaid, (iii) by overnight courier (such as Federal Express), or
(iv) by facsimile transmission (with a copy sent via (i), (ii) or (iii)),
addressed as follows:
1. If to Seller:
Xxx Xxxxx Xxxxxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxxxxx Field
29
With a copy to:
Xxxxxxxxx & Xxxxxxxxxxx, P.C.
Suite 0000
Xxx Xxxxx Xxxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxx
0. If to Purchaser:
000 Xxxxxx Xxxx Xxxxx
Xxxxx 000
Xxxxxxxxxx, Xxxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxxxxx Xxxxxxxxxx
With a copy to:
Xxxxx & Xxxxxxx, LLP
0000 Xxxxx Xxxxxx Xxxxx
Xxxxx 0000
Xxxxxxxxxx, Xxxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxxxx Xxxxxxx
All notices given in accordance with the terms hereof shall be deemed
received (1) when delivered, if personally delivered, (2) forty-eight (48)
hours after posting, if sent by certified mail, return receipt requested,
postage prepaid, (3) the next business day after deposit with the courier
company, if sent by overnight courier, and (4) on the day sent, if sent by
facsimile transmission prior to the close of the recipient's business day.
Either party hereto may change the address for receiving notices, requests,
demands or other communication by notice sent in accordance with the terms
of this Section 10.F. The provisions of this Section 11.F. shall survive
the Closing and delivery of the Deed or sooner termination of this
Agreement.
G. Inspections. Purchaser's Inspections pursuant to Section 8.A. above
-----------
shall be subject to the rights of tenants under the Leases and other
occupants and users of the Property. No Inspections shall be undertaken
without reasonable prior notice to Seller (which, in any event, shall be
not less than two (2) business days prior to the date of such inspection).
Seller shall have the right to be present at any or all Inspections.
Purchaser may not contact tenants directly,
30
rather, Purchaser shall notify Seller within a reasonable time (but in any
event not less than two (2) business days) prior to the date that Purchaser
desires to contact any tenant so that Seller may have a representative
present during such contact. Seller may also waive, in writing, the
requirement that it be present during any or all such tenant contacts.
Except as provided in Section 11.K.(i) below, no Inspections shall involve
the taking of samples or other physically invasive or intrusive procedures
without the prior consent of Seller which may be withheld by Seller in its
sole and absolute discretion. Notwithstanding anything to the contrary
contained in this Agreement, Purchaser shall indemnify and hold Seller and
its employees and agents, and each of them, harmless from and against any
and all losses, claims, damages and liabilities (including, without
limitation, reasonable attorneys' fees incurred in connection therewith)
arising out of or resulting from Purchaser's exercise of its rights under
Section 8.A. above, this Section 11.G., Section 11.K.(i) and Section 11.J.
below, it being understood that Purchaser shall not be obligated to
indemnify Seller against matters arising solely out of Seller's or its
agents', employees', tenants' or contractors' negligence or willful
misconduct. Except upon the written request of Seller pursuant to Section
11.K. below, Purchaser shall not deliver to Seller copies of any of the
studies, reports, surveys or other information, data and/or documents
relating to the Property or any part thereof prepared by or at the request
of Purchaser, its employees, agents, representatives or contractors. The
provisions of this Section 11.G. shall survive the Closing and delivery of
the Deed or sooner termination of this Agreement.
H. As-Is Condition. ACKNOWLEDGING THE PRIOR USE OF THE PROPERTY AND
---------------
PURCHASER'S OPPORTUNITY TO INSPECT THE PROPERTY AND EXCEPT AS SPECIFICALLY
PROVIDED IN THIS AGREEMENT, PURCHASER AGREES TO TAKE THE PROPERTY "AS IS"
WITH ALL FAULTS AND CONDITIONS THEREON, SUBJECT TO USE, ORDINARY WEAR AND
TEAR, NATURAL DETERIORATION AND SUCH OTHER MATTERS AS ARE PERMITTED BY THIS
AGREEMENT. ANY INFORMATION, REPORTS, STATEMENTS, DOCUMENTS OR RECORDS,
INCLUDING, WITHOUT LIMITATION, THE ITEMS SET FORTH IN EXHIBIT P ATTACHED
---------
HERETO AND THE DOCUMENTS PROVIDED IN ACCORDANCE WITH SECTION 8.A. ABOVE
(COLLECTIVELY, THE "DISCLOSURES") PROVIDED OR MADE TO PURCHASER OR ITS
CONSTITUENTS OR AGENTS BY SELLER, ITS AGENTS, EMPLOYEES, CONTRACTORS OR
REPRESENTATIVES, CONCERNING THE PROPERTY SHALL NOT BE REPRESENTATION OR
WARRANTIES. EXCEPT AS SPECIFICALLY PROVIDED IN THIS AGREEMENT, PURCHASER
SHALL NOT RELY ON SUCH DISCLOSURES, BUT RATHER, PURCHASER SHALL RELY ONLY
ON ITS OWN INSPECTION OF THE PROPERTY. PURCHASER ACKNOWLEDGES AND AGREES
THAT, EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, NEITHER SELLER NOR
ITS AGENTS, EMPLOYEES, CONTRACTORS OR REPRESENTATIVE HAS MADE, AND NONE OF
THEM MAKES AND EACH SPECIFICALLY DISCLAIMS ANY STATEMENTS, REPRESENTATIONS,
WARRANTIES, PROMISES, COVENANTS, AGREEMENTS OR GUARANTIES OF ANY KIND OR
CHARACTER WHATSOEVER, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, PAST,
PRESENT OR FUTURE, OF, AS TO, CONCERNING OR WITH RESPECT TO (A) THE NATURE,
QUALITY OR CONDITION OF THE PROPERTY, INCLUDING, WITHOUT LIMITATION, THE
WATER, SOIL AND GEOLOGY, (B) THE INCOME HERETOFORE DERIVED OR TO BE DERIVED
FROM THE PROPERTY, (C) THE SUITABILITY OF THE PROPERTY FOR ANY AND ALL
ACTIVITIES AND USES WHICH PURCHASER MAY CONDUCT THEREON, (D) THE COMPLIANCE
OF OR
31
BY THE PROPERTY OR ITS OPERATION WITH ANY LAWS, RULES, ORDINANCES OR
REGULATIONS OF ANY APPLICABLE GOVERNMENTAL AUTHORITY OR BODY, (E) THE
HABITABILITY, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OF THE
PROPERTY, OR (F) ANY OTHER MATTER WITH RESPECT TO THE PROPERTY, AND
SPECIFICALLY DISCLAIM ANY REPRESENTATIONS REGARDING TERMITES OR WASTES, AS
DEFINED BY THE U.S. ENVIRONMENTAL PROTECTION AGENCY REGULATIONS AT 40
C.F.R., OR ANY HAZARDOUS SUBSTANCE, AS DEFINED BY THE COMPREHENSIVE
ENVIRONMENTAL RESPONSE COMPENSATION AND LIABILITY ACT OF 1980 ("CERCLA"),
AS AMENDED, AND REGULATIONS PROMULGATED THEREUNDER.
PURCHASER, ITS SUCCESSORS AND ASSIGNS, HEREBY WAIVE, RELEASE AND AGREE
NOT TO MAKE ANY CLAIM OR BRING ANY COST RECOVERY ACTION OR CLAIM OR
CONTRIBUTION, INDEMNITY OR OTHER ACTION OR CLAIM AGAINST SELLER OR ITS
AFFILIATES, DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, ATTORNEYS OR ASSIGNS
(A) UNDER ANY FEDERAL, STATE OR LOCAL ENVIRONMENTAL OR HEALTH AND SAFETY
LAW OR REGULATION, INCLUDING CERCLA OR ANY STATE EQUIVALENT, OR ANY SIMILAR
LAW NOW EXISTING OR HEREAFTER ENACTED; (B) WITH RESPECT TO, IN CONNECTION
WITH OR RESULTING FROM ANY DISCHARGE, DISPOSAL, RELEASE OR ESCAPE OF ANY
CHEMICAL, OR ANY HAZARDOUS OR TOXIC MATERIAL WHATSOEVER, ON, AT, TO OR FROM
THE PROPERTY; OR (C) ANY CONDITIONS INCLUDING, WITHOUT LIMITATION,
ENVIRONMENTAL CONDITIONS, WHATSOEVER ON, UNDER OR IN THE VICINITY OF THE
PROPERTY.
THE PROVISIONS OF THIS SECTION 11.H. SHALL SURVIVE THE CLOSING AND
DELIVERY OF THE DEED OR SOONER TERMINATION OF THIS AGREEMENT.
I. Waiver of Jury Trial. In any lawsuit or other proceeding under or with
--------------------
respect to this Agreement, Purchaser waives any rights it may have to trial
by jury. In addition, Purchaser waives any right to seek recission of the
transaction provided for in this Agreement. The provisions of this Section
11.I. shall survive the Closing and delivery of the Deed or sooner
termination of this Agreement.
J. Confidentiality. Purchaser acknowledges that all information with
---------------
respect to the Property obtained or developed by Purchaser, or furnished or
to be furnished to Purchaser is, has been and will be so furnished on the
condition that Purchaser maintain the confidentiality thereof. Accordingly,
Purchaser shall, and shall cause its directors, officers and other
personnel and representatives to, hold in strict confidence, and not
disclose to any other party without the prior written consent of Seller:
(i) any of the information with respect to the Property delivered to
Purchaser by Seller or any of its agents, representatives or employees, or
(ii) the existence of this Agreement or any term or condition hereof except
for this Section 11.J. as required in this Section 11.J. below, or (iii)
the results of any inspections or studies undertaken in connection herewith
or any other information obtained or developed by Purchaser. In addition,
neither Purchaser nor Purchaser's directors, officers and other personnel
and representatives shall solicit offers to purchase the Property to any
other party without the prior written consent of Seller. Notwithstanding
the above, Purchaser may disclose such information to individuals or
entities
32
necessary for Purchaser to consummate the transaction contemplated herein
(such as investors, lenders, engineers, attorneys, prospective management
companies, environmental consultants, accountants and tax advisors) and as
required by law. Purchaser shall, with respect to any parties to whom the
existence of this Agreement or any information with respect to the Property
is disclosed, notify such parties of the existence of this Section 11.J.
and its applicability to any such information provided to any such parties
and this Agreement and Purchaser shall be responsible for the breach of any
provision of this Section 11.J. by any such parties. In the event the
Closing does not occur and this Agreement is terminated, Purchaser shall,
upon written request by Seller, promptly return to Seller all copies of all
such information without retaining any copy thereof or extract therefrom.
Without limitation to any of the foregoing, Purchaser shall not use any
such information in any manner detrimental to the Property, Seller or its
agents. Purchaser agrees to indemnify, defend and hold Seller harmless
against all claims, losses and/or damages resulting from the Purchaser's
breach of this Section 11.J., as well as any breach thereof by any party to
whom such information is provided. Purchaser's obligations under this
Section 11.J. shall survive the Closing or any termination of this
Agreement.
K. Reports. If for any reason Purchaser does not consummate the Closing,
-------
then Purchaser shall, only upon Seller's written request, provide to Seller
copies of any and all studies, reports, surveys and other information, data
and/or documents relating to the Property or any part thereof prepared by
or at the request of Purchaser, its employees and agents. The provisions
of this Section 11.K. shall survive any termination of this Agreement.
(i) Purchaser's limited right to conduct invasive or intrusive
----------------------------------------------------------
testing. In the event that Purchaser's Inspections will include a Phase I
-------
environmental report or other general evaluation of the environmental
condition of the Property, Purchaser shall be entitled to have such report
or evaluation prepared and completed, provided that (a) such preparation
and completion occurs prior to the expiration of the Inspection Period, and
(b) such report or evaluation is prepared by Law Environmental and
Engineering Services, Inc. or its affiliate ("LAW") at the sole expense of
Purchaser. In the event (1) that Purchaser, prior to the expiration of the
Inspection Period, obtains a Phase I environmental report or general
evaluation report from LAW prepared in compliance with the provisions of
this Agreement and such Phase I environmental report or general evaluation
report recommends that invasive o r intrusive testing occur at the Property
to investigate the presence of any conditions or substances or the
locations thereof that are not disclosed or discussed in the reports set
forth on EXHIBIT P or the reports set forth on EXHIBIT P recommend that
--------- ---------
invasive or intrusive testing be performed, and (2) Purchaser, prior to the
expiration of the Inspection Period, requests in writing that it be
permitted to have LAW perform and complete such testing prior to the
expiration of the Inspection Period (such request to include a copy of the
report or reports that recommend such invasive or intrusive testing, a
description of the testing requested, including the proposed location,
scope and timing of the testing), then Purchaser shall be entitled to have
LAW perform and complete, prior to the expiration of the Inspection Period,
such reasonable invasive or intrusive testing which reasonably addresses
the conditions described by LAW in support of LAW's recommendation(s) in
the applicable reports, as Seller and Purchaser shall mutually agree upon
in writing in the exercise of their reasonable discretion. After such
testing, Purchaser, at its sole cost and expense, shall be obligated to
restore the portions of the Property affected by such testing to their
condition prior to such testing.
33
L. New Leases. Seller and Purchaser further agree as follows:
----------
1. From and after the date of this Agreement through the
Closing, Seller shall deliver, to Purchaser for review (a "New Lease
Notice") a copy of any proposed new lease, or any modification,
amendment, restatement or renewal of an existing lease (each a "New
Lease", and collectively, "New Leases"). During the period between two
(2) business days prior to the expiration of the Inspection Period and
Closing, Purchaser shall have the right (exercisable in its reasonable
discretion) to approve or disapprove of any New Lease by responding in
writing to Seller's New Lease Notice within five (5) business days
after Purchaser's receipt of the New Lease Notice. If Purchaser fails
to approve or disapprove of such New Lease within such five (5)
business day period, Purchaser shall be deemed to have conclusively
approved of such New Lease. In the event that Purchaser reasonably
disapproves of such New Lease within such five (5) business day
period, Seller shall not enter into such New Lease. If Seller enters
into such a New Lease after Purchaser reasonably disapproves of such
New Lease as provided in the preceding sentence, then Purchaser shall
have the right, within five (5) business days after Purchaser's
receipt of written notice of Seller's entering into such New Lease, to
terminate this Agreement and Seller shall be obligated to pay to
Purchaser the lesser of Purchaser's actual, third party out-of-pocket
expenses and One Hundred Thousand Dollars ($100,000), notwithstanding
any provision of Section 7. to the contrary, as Purchaser's sole and
exclusive remedy. If Purchaser does not so terminate this Agreement,
Purchaser shall be deemed to have conclusively approved of such New
Lease. If Purchaser elects to terminate this Agreement pursuant to the
provisions of this Section 11.L.1 and Purchaser is not otherwise in
default hereunder, the Xxxxxxx Money shall be returned to Purchaser by
the Escrowee, in which event this Agreement shall, without further
action of the parties, become null and void and neither party shall
have any further rights or obligations under this Agreement except
those rights and obligations which expressly survive termination of
this Agreement as provided herein. Notwithstanding the foregoing,
Seller may enter into a New Lease, and Purchaser shall be deemed to
have consented to execution of same, to the extent such action is
mandatory (for example, a lease renewal pursuant to the exercise of an
existing option right) without the need to seek Purchaser's consent;
provided, however, that to the extent any of the economic terms of
such mandatory agreements are discretionary and not explicit, such
terms shall be subject to Purchaser's prior written consent, which
will not be unreasonably withheld or delayed. Any New Lease which
Seller is permitted to enter into hereunder and does enter into shall
be deemed a "Lease" for purposes of this Agreement.
2. All Tenant Inducement Costs and/or leasing commissions ("New
Lease Costs") relating to New Leases entered into by Seller (y)
between the date of this Agreement and prior to the expiration of the
Inspection Period, and (z) between the expiration of the Inspection
Period and prior to Closing which Purchaser approves (or is deemed to
approve) in accordance with Section 11.L.1 above, shall be paid by
Purchaser in accordance with Section 4.C.(ii)(c) above.
M. Option to Assume Service Contracts. At Closing, Purchaser shall be
----------------------------------
obligated to assume (1) the Existing Capital Service Contracts, (2) any
Service Contracts consented to (or deemed to be consented to) by Purchaser
in accordance with Section 9.F.1. above or Section 11.V. below, and (3)
those Terminable Service Contracts (as hereinafter defined) that Purchaser
elects to assume in accordance with the remaining provisions of this
Section 11.M. At Closing, Purchaser
34
shall not be permitted to assume, and Seller shall cancel, the Service
Contracts with Carrier, Nalco and Unitog/Cintas. On or before the end of
the Inspection Period, Purchaser shall have the right to notify Seller
which of the Terminable Service Contracts it desires to assume at Closing.
Any Terminable Service Contracts set forth in such notice shall be assumed
by Purchaser at Closing pursuant to the Service Contract Assignment. Any
Terminable Service Contracts not set forth in such notice shall be
terminated by Seller as of Closing. As used herein, the term "Terminable
Service Contracts" shall mean the Service Contracts, other than the
"Construction Contracts", any Service Contracts consented to (or deemed to
be consented to) by Purchaser in accordance with Section 9.F.1. above or
Section11.V. below, and the Service Contracts with Carrier, Nalco and
Unitog/Cintas.
N. Reporting Person. Seller and Purchaser hereby designate Escrowee to
----------------
act as and perform the duties and obligations of the "reporting person"
with respect to the transaction contemplated by this Agreement for purposes
of 26 C.F.R. Section 1.6045-4(e)(5) relating to the requirements for
information reporting on real estate transaction closed on or after January
1, 1991. In this regard, Seller and Purchaser each agree to execute at
Closing, and to cause the Escrowee to execute at Closing, a Designation
Agreement, designating Escrowee as the reporting person with respect to the
transaction contemplated by this Agreement.
O. Counterparts. This Agreement may be executed in any number of
------------
identical counterparts, any or all of which may contain signatures of fewer
than all of the parties but all of which taken together shall constitute a
single instrument.
P. No Recording. Neither this Agreement nor a memorandum thereof shall be
------------
recorded against the Property.
Q. Limitation of Liability. Purchaser acknowledges and agrees that any
-----------------------
recovery against Seller that Purchaser may be entitled to after Closing as
a result of any claim, demand or cause of action that Purchaser may have
against Seller with respect to this Agreement and the transactions
contemplated herein shall only be recoverable against Seller in an amount
not in excess of Five Hundred Thousand Dollars ($500,000). The provisions
of this Section 11.Q. shall survive the Closing and the delivery of the
Deed.
R. Construction. The parties acknowledge that each party and its counsel
------------
have reviewed and revised this Agreement and that the normal rule of
construction to the effect that any ambiguities are to be resolved against
the drafting party shall not be employed in the interpretation of this
Agreement or any amendments or exhibits hereto. The captions preceding the
text of each Section are included for convenience of reference only and
shall be disregarded in the construction and interpretation of this
Agreement.
S. No Survival unless Specifically Provided. Except as specifically
----------------------------------------
provided for in this Agreement, the rights, obligations, representations,
warranties, covenants and agreements of the parties set forth in this
Agreement shall not survive the Closing or any termination of this
Agreement.
T. No Third-Party Beneficiaries. Except as specifically provided herein,
----------------------------
no third parties shall have the benefit of any of the provisions of this
Agreement, nor is this Agreement made with the intent that any person or
entity other than Seller and Purchaser shall rely hereon.
35
U. No Solicitation. Until the Closing, Purchaser will not solicit to hire
----------------
or hire any employee or representative of Seller or its affiliates involved
in the operation or management of the Property.
V. Potential Mechanic's Liens related to Tenant Buildout. Should the
-----------------------------------------------------
timing and/or scope of work to be performed by the lessor under Leases
and/or New Leases or in connection with the Capital Projects require Seller
to enter into contracts with contractors or other parties during the period
between expiration of the Inspection Period and Closing in order to comply
with the lessor's obligations under such Leases and/or New Leases or to
complete the Capital Projects and the work performed under such contracts
will not be completed prior to Closing, Seller shall submit the proposed
contract (along with the plans, specifications and other information
referenced in or attached to such proposed contract) with such contractor
or other parties to Purchaser for its approval. Purchaser shall have the
right (exercisable in its reasonable discretion) to approve or disapprove
of such contract. If Purchaser fails to approve or disapprove of such
contract within five (5) business days after its receipt of same, Purchaser
shall be deemed to have conclusively approved of such contract. In the
event Purchaser reasonably disapproves of such contract within such five
(5) business day period, Seller shall not enter into such contract. If such
contract was to be for the completion of work required under a New Lease
(whether or not included with the Capital Projects), then Purchaser shall,
within five (5) business days after its disapproval, be obligated to
present to Seller a construction contract from another reputable contractor
substantially on the same terms and conditions (which terms and conditions
shall include the same scope of work, materials of the same or better
quality and identical periods for completion of all stages of the work) and
for the same price as the contract rejected by Purchaser and, if Purchaser
fails to do so, Seller may enter into the original contract and such
contract shall be deemed to be approved by Purchaser under this Section
11.V. If Seller enters into such contract after Purchaser reasonably
disapproves of such contract and Purchaser has provided a construction
contract as provided in the preceding sentence, then Purchaser shall have
the right, within five (5) business days after Purchaser's receipt of
written notice of Seller's entering into such contract, to notify Seller in
writing as to whether or not it will elect to terminate the Agreement due
to Seller entering into such contract. Upon Seller's receipt of written
notice from Purchaser of Purchaser's intent to terminate the Agreement as
permitted under the preceding sentence, Seller shall have five (5) business
days to terminate such contract so as to result in no liability to
Purchaser after Closing under such contract and, in the event that Seller
so terminates such contract within such five (5) business day period,
Purchaser shall not be permitted to terminate the Agreement due to Seller
entering into such contract. If Seller elects to proceed and the price from
the other reputable contractor submitted by Purchaser is less than the
price of the contractor selected by Seller and presented to Purchaser, then
Purchaser shall only be obligated to credit Seller at Closing for the price
quoted by the reputable contractor presented by Purchaser as provided
above. If Seller does not terminate the contract as provided above within
the five (5) business day period, then, if Purchaser is otherwise entitled
hereunder to return of the Xxxxxxx Money, the Xxxxxxx Money shall be
returned to Purchaser by the Escrowee, in which event this Agreement shall,
without further action of the parties, become null and void and neither
party shall have any further rights or obligations under this Agreement
except those rights and obligations which expressly survive termination of
this Agreement as provided herein except that Purchaser shall be entitled
to receive its actual, out of pocket third party expenses incurred in
connection with its negotiation of this Agreement and its Inspections, such
amount not to exceed $100,000. If a contract approved under this Section
11.V. requires that Seller pay any amounts under such contract prior to
Closing, Seller shall pay such amounts and such amounts shall be prorated
between Purchaser and Seller as provided in Sections 4.C.(i)
36
and 4.C.(ii) above. All contracts approved (or deemed approved) under this
Section 11.V. shall be included in the "Service Contracts" to be assumed by
Purchaser pursuant to the Service Contract Assignment. Purchaser's
assumption of all Service Contracts at Closing with respect to construction
shall be deemed to include the obligation for payment of all amounts owed
under such Service Contracts after Closing, even if incurred prior to
Closing. If any such Service Contracts and/or the Xxxxxxx Agreement
(hereinafter defined) result in work for which the provider or
subcontractor thereunder may obtain a lien against the Property if such
work is not paid for and Purchaser is obligated to pay for such work as
provided in the preceding sentence, then the "Permitted Exceptions" shall
be deemed to include any potential liens and related notices of
commencement as a result thereof. The provisions of this Section 11.V.
shall survive the Closing and delivery of the Deed.
W. Settlement Agreement. Simultaneously with the full execution of this
--------------------
Agreement and as condition precedent to the effectiveness of this
Agreement, Purchaser, Seller and Metropolitan Properties, Inc. entered into
the Settlement Agreement in order to confirm that the 1983 Agreement no
longer exists and to address such other matters as contained therein.
X. Construction Management Agreement. Seller has engaged Xxxxxxx Realty
---------------------------------
Services ("Xxxxxxx") to monitor and manage certain ongoing general and
tenant construction work in progress at the Property and/or to occur in the
future. Seller and Xxxxxxx are in the process of setting forth the terms of
such engagement in a written document but have not entered into a
definitive written agreement as of the date of this Agreement. Such a
written agreement with Xxxxxxx ("Xxxxxxx Agreement") will provide that it
is terminable by Seller upon a sale or other transfer of the Property.
Since Seller intends to terminate the Xxxxxxx Agreement at Closing, the
engagement of Xxxxxxx and the Xxxxxxx Agreement are expressly excluded from
the definition of "Service Contracts" hereunder and Purchaser shall not
have any approval rights with respect to the Xxxxxxx Agreement. However,
upon written notice to Seller at least ten (10) days prior to Closing,
Purchaser may elect to take an assignment of any right, title and interest
of Seller in and to the Xxxxxxx Agreement at Closing, provided that,
Purchaser assumes all obligations and liabilities under the Xxxxxxx
Agreement as of the Closing Date (including, without limitation, payment of
amounts which are not due and payable to Xxxxxxx as of the Closing Date).
Except in the event of the assumption by Purchaser pursuant to the
preceding sentence and Seller has paid any amounts under the Xxxxxxx
Agreement prior to Closing that are attributable to the obligations assumed
by Purchaser, the amounts to be paid at Closing by Purchaser shall not
include any amounts payable under the Xxxxxxx Agreement.
Y. Metrogate Agreement. As used herein, "Metrogate Agreement" shall mean
-------------------
that certain Metrogate Agreement dated August 31, 1983 between Seller and
Brookwood V., Ltd.
Z. Pre and Post Closing Obligations. Subject to the provisions of this
--------------------------------
Agreement and any documents executed pursuant hereto, as between Seller and
Purchaser, Seller shall be obligated for any obligations or liabilities
related to the Property and attributable to the period prior to Closing and
Purchaser shall be obligated for any obligations or liabilities related to
the Property and attributable to the period from and after Closing.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY BLANK]
37
IN WITNESS WHEREOF, Seller and Purchaser have executed and delivered this
Agreement as of the date first above written.
SELLER:
FIRST CAPITAL INCOME PROPERTIES, LTD. - SERIES VIII,
a Florida limited partnership
By: First Capital Financial Corporation, a Florida
corporation, its general partner
By: ___________________________________
Name:__________________________________
Title: ________________________________
PURCHASER:
BOARDWALK MANAGEMENT CORPORATION, an Alabama
corporation
By: _________________________________________
Name:________________________________________
Title:_______________________________________
38
LIST OF EXHIBITS
----------------
A - Legal Description
B - Permitted Exceptions
C - Service Contracts
D - Joint Order Escrow Agreement
E - Assignment and Assumption of Leases
and Security Deposits
F - Assignment and Assumption of Service Contracts
G - Form Tenant Estoppel Certificate
H - Limited Warranty Deed
I - List of Litigation
J - Xxxx of Sale
K - Tangible Personal Property
L - Notice Letter to Tenants
M - Notice Letter to Vendors
N - Rent Roll
O - OSHA Letter
P - Environmental Reports
Q - Purchaser Capital Costs
R - Quit Claim Assignment of Permits and General Intangibles
S - Tenant Inducement Costs and Leasing Commissions
T - Delinquent Tenants
U - Intentionally Omitted
V - Notices of Landlord Defaults from Tenants
W - Notices of Tenant Defaults from Landlord
X - Notices of Violations of Law
Y - Assignment and Assumption of Metrogate Agreement
39
EXHIBIT A
LEGAL DESCRIPTION
-----------------
PARCEL 1:
All that tract or parcel of land lying and being in the Northeastern portion of
Lot 5-A of the Northeast quarter of the Southwest quarter of Xxxxxxx 00,
Xxxxxxxx 00 Xxxxx, Xxxxx 0 Xxxx, Xxxx of Homewood, Jefferson County, Alabama,
according to the Survey of Brookwood One, A Limited Partnership, Addition to
Brookwood Medical Center, as recorded in Map Book 104, page 45, Office of the
Probate Judge, Jefferson County, and being more particularly described as
follows:
To find the point of beginning, commence at the Northeast corner of the
Northeast quarter of the Southwest quarter of Xxxxxxx 00, Xxxxxxxx 00 Xxxxx,
Xxxxx 0 Xxxx; proceed thence in a Westerly direction along the North line of
said quarter-quarter a distance of 170.28 feet to a point which forms the
intersection of the North line of said quarter-quarter with the Northwesterly
right-of-way line of Xxxxx Road, which point is the point of beginning.
From the point of beginning thus established; thence turning an angle to the
left of 32 degrees 59' 24", run in a Southwesterly direction a distance of
658.00 feet to a point; thence turning an angle to the left of 58 degrees 00'
00", run in a Southerly direction a distance of 606.00 feet to a point; thence
turning to the left, forming an interior angle of 90 degrees 00' 00" run in an
Easterly direction a distance of 255.00 feet to a point; thence turning to the
left, forming an interior angle of 133 degrees 46' 03", run in a Northeasterly
direction a distance of 683.19 feet to a point located on the Easterly line of
said Northeast quarter of the Southwest quarter of Section 17; thence turning to
the left, forming an interior angle of 136 degrees 19' 06" run in a Northerly
direction along said Easterly line of said quarter-quarter a distance of 180.00
feet to a point located on the Southwesterly right of way line of Xxxxx Road;
thence turning to the left, forming an interior angle of 100 degrees 12' 52",
run in a Northwesterly direction a distance of 94.18 feet along the
Southwesterly right of way line of Xxxxx Road, following the arc of a curve to
the right to a point located on said right of way line, said curve having a
central angle of 29 degrees 33' 38" and a radius of 182.54 feet; thence run
along said right of way line in a Northwesterly direction a distance of 40.07
feet to a point located on said right of way line; thence run in a Northwesterly
direction a distance of 82.24 feet along said right of way line, following the
arc of a curve to the right to a point located on said right of way line of
Xxxxx Road, said curve having a central angle of 25 degrees 09' 00" and a radius
of 187.36 feet; thence run in a Northwesterly, Northerly and Northeasterly
direction a distance of 123.89 feet along Northwesterly right of way line of
Xxxxx Road, following the arc of a curve to the right to a point located on said
Northwesterly right of way line of Xxxxx Road, said curve having a central angle
of 38 degrees 24' 00" and a radius of 184.86 feet; thence run in a Northeasterly
direction along said Northwesterly right of way line a distance of 31.38 feet to
a point located at the intersection of said right of way line and the north line
of said quarter-quarter and the point of beginning.
Together with, as an appurtenance to and for the benefit of the above described
property; all rights, powers, privileges, easements and benefits created
pursuant to that certain Cross-Easement Agreement, dated October 28, 1974, by
and between Brookwood One, a Limited Partnership, an Alabama Limited
Partnership, and Brookwood Two, A Limited Partnership, an Alabama Limited
Partnership, and recorded in Real Volume 1123, page 390, Office of the Probate
Judge, Jefferson County, as amended by that certain Amendment to Cross-Easement
Agreement, dated June 16, 1977, by and between Brookwood One, Brookwood Two and
Brookwood Four, Ltd., an Alabama Limited Partnership, and recorded in Real
Volume 1454, page 264, aforesaid records, which Cross-Easement Agreement, as
amended, grants
permanent, non-exclusive easements for parking and ingress and egress in favor
of the aforedescribed property over the following described property;
All that tracts or parcels of land lying and being in Lot 5-A of the Northeast
quarter of the Southwest quarter of Xxxxxxx 00, Xxxxxxxx 00 Xxxxx, Xxxxx 0 Xxxx,
Xxxx of Homewood, Jefferson County, Alabama, as shown in that certain Survey of
Brookwood One, A Limited Partnership, Addition to Brookwood Medical Center, as
recorded in Map Book 104, page 45, Office of the Probate Judge, Jefferson
County, less and except that portion of said Lot 5-A first described
hereinabove.
Together with as an appurtenance to and for the benefit of the property first
described hereinabove, all rights, powers, privileges, easements and benefits
created pursuant to that certain 15 foot easement for sanitary sewers, storm
sewers and storm ditches, as dedicated pursuant to that certain Survey of
Brookwood One, A Limited Partnership, Addition to Brookwood Medical Center, and
recorded in Map Book 104, page 45, Office of the Probate Judge, Jefferson
County.
Together with, as an appurtenance to and for the benefit of the property first
described hereinabove, all right, title and interest of Brookwood Properties,
Ltd., an Alabama Limited Partnership (hereinafter referred to as "Brookwood
Properties") by virtue of that certain Drainage Easement from Brookwood V.,
Ltd., an Alabama Limited Partnership, as grantor, to Brookwood Properties and
Brookwood One, a Limited Partnership, an Alabama Limited Partnership, as
grantees, dated August 17, 1983, and recorded in Real Volume 2378, page 220,
Office of the Probate Judge, Jefferson County, which easement grants, inter
alia, certain permanent, non-exclusive drainage and storm sewer easements in
favor of the property first described hereinabove over the property described in
said Drainage Easement.
PARCEL 2:
All that tract or parcel of land lying and being in the Southeastern portion of
Lot 5-A, of the Northeast quarter of the Southwest quarter of Xxxxxxx 00,
Xxxxxxxx 00 Xxxxx, Xxxxx 0 Xxxx, Xxxx of Homewood, Jefferson County, Alabama,
according to the Survey of Brookwood One, A Limited Partnership, Addition to
Brookwood Medical Center, as recorded in Map Book 104, page 45, Office of the
Probate Judge, Jefferson County, Alabama and being more particularly described
as follows:
To find the point of beginning, commence at the Northeast corner of the
Northeast quarter of the Southwest quarter of Xxxxxxx 00, Xxxxxxxx 00 Xxxxx,
Xxxxx 0 Xxxx; proceed thence in a Southerly direction along the Easterly line of
said quarter-quarter a distance of 458.38 feet to a point which is the point of
beginning.
From the point of beginning thus established; thence turning an angle to the
right of 43 degrees 40' 54", run in a Southwesterly direction a distance of
683.19 feet to a point; thence turning to the right, forming an interior angle
of 226 degrees 13' 57", run in a Westerly direction a distance of 125.00 feet to
a point; thence turning an angle to the left of 90 degrees 00' 00", run in a
Southerly direction a distance of 244.00 feet to a point; thence turning to the
right, forming an interior angle of 207 degrees 12' 43", run in a Southwesterly
direction a distance of 115.41 feet to a point located upon the Northerly right
of way line of Medical Center Drive; thence turning to the left, forming an
interior angle of 49 degrees 44' 33", run in a Northeasterly direction along
said Northerly right of way line a distance of 337.79 feet along the arc of a
curve to the right to a point located on said right of way line, said curve
having a central angle of 13 degrees 52' 31" and a radius of 1,392.37 feet;
thence run along said Northerly right of way line of Medical Center Drive in an
Easterly direction a distance of 314.73 feet to a point located at the
intersection of said right of way line and the Easterly line of said Northeast
quarter of said Southwest quarter; thence turning left, forming an
2
interior angle of 89 degrees 15' 22", run in a Northerly direction a distance of
808.77 feet along said Easterly line of said quarter-quarter to the point of
beginning.
Together with, as an appurtenance to and for the benefit of the above described
property; all rights, powers, privileges, easements and benefits created
pursuant to that certain Cross-Easement Agreement, dated October 28, 1974, by
and between Brookwood One, A Limited Partnership, an Alabama Limited
Partnership, and Brookwood Two, A Limited Partnership, an Alabama Limited
Partnership, and recorded in Real Volume 1123, page 390, Office of the Probate
Judge, Jefferson County, as amended by that certain Amendment to Cross-Easement
Agreement, dated June 16, 1977, by and between Brookwood One, Brookwood Two and
Brookwood Four, Ltd., an Alabama Limited Partnership, and recorded in Real
Volume 1454, page 264, aforesaid records, which Cross-Easement Agreement, as
amended, grants permanent, non-exclusive easements for parking and ingress and
egress in favor of the aforedescribed property over the following described
property:
All those tracts or parcels of land lying and being in Lot 5-A of the Northwest
quarter of the Southwest quarter of Xxxxxxx 00, Xxxxxxxx 00 Xxxxx, Xxxxx 0 Xxxx,
Xxxx of Homewood, Jefferson County, Alabama, as show in that certain Survey of
Brookwood One, A Limited Partnership Addition to Brookwood Medical Center, as
recorded in Map Book 104, page 45, Office of the Probate Judge, Jefferson
County, less and except that portion of said Lot 5-A first described
hereinabove.
Together with, as an appurtenance to and for the benefit of that property first
described hereinabove, all rights, title and interest of Brookwood Properties,
Ltd., an Alabama Limited Partnership (hereinafter referred to as "Brookwood
Properties") by virtue of that certain Drainage Easement from Brookwood V.,
Ltd., an Alabama Limited Partnership, as grantor, to Brookwood Properties and
Brookwood One, Limited Partnership, an Alabama Limited Partnership, as grantees,
dated August 17, 1983 and recorded in Real Volume 2378, page 220, Office of the
Probate Judge, Jefferson County, which easement grants inter alia, certain
permanent, non-exclusive drainage and storm sewer easements in favor of the
property first described hereinabove over the property described in said
Drainage Easement.
3
EXHIBIT B
PERMITTED EXCEPTIONS
--------------------
1. Acts of Purchaser, and those claiming by, through and under Purchaser.
2. General and special taxes and assessments and the lien thereof not yet
delinquent, including, without limitation, State, County, City and School
Taxes.
3. Rights of tenants under the Leases.
4. Zoning, building and other governmental and quasi-governmental laws, codes
and regulations.
5. Any adverse claim to any portion of the Property which has been created by
artificial means or has accreted to any such portion so created and
riparian rights, if any.
6. Encroachments, overlaps, boundary line disputes, or other matters which
would be disclosed by an accurate survey and inspection of the premises.
7. Taxes or special assessments which are not shown as existing liens by the
public record of which Seller has no Actual Knowledge (with Actual
Knowledge meaning the same as "Actual Knowledge of Seller" in the
Agreement).
8. Easements, or claims of easements, not shown by the public records of which
Seller has no Actual Knowledge (with Actual Knowledge meaning the same as
"Actual Knowledge of Seller" in the Agreement).
9. Easement granted by Valley Center Development Corporation to Alabama Power
Company, dated February 3, 1972 and recorded in Real Volume 799, page 85,
Jefferson County, Alabama records.
10. Permit-Buried Lines, dated May 30, 1973, granted by Brookwood Center
Development Corporation to South Central Xxxx Telephone Company and
recorded in Real Volume 958, page 766, aforesaid records.
11. Cross-Easement Agreement dated October 28, 1974, by and between Brookwood
One and Brookwood Two, recorded in Real Volume 1123, page 390, aforesaid
records; as amended by that certain Amendment to Cross-Easement Agreement
dated June 16, 1977, between and among Brookwood One, Brookwood Two and
Brookwood Four, Ltd., and recorded in Real Volume 1454, page 264, aforesaid
records.
12. Right of way easement granted by Brookwood One and Brookwood Two to The
Water Works Board of the City of Birmingham, a municipal corporation, for a
30 foot water easement, dated December 17, 1974 and recorded in Real Volume
1135, page 661, aforesaid records.
13. Easement granted by Brookwood Two to Alabama Power Company, dated March 21,
1975 and recorded in Real Volume 1159, page 372, aforesaid records.
14. Easements for public utilities, sanitary sewer, storm sewers and storm
ditches, as dedicated pursuant to that certain plat of survey entitled
"Brookwood One, A Limited Partnership, Addition to Brookwood Medical
Center," dated June 20, 1974 and recorded in Map Book 104, page 45,
aforesaid records.
15. Easement granted by The Water Works Board of the City of Birmingham to
Alabama Power Company, dated January 7, 1975 and recorded in Real Volume
1159, page 375 aforesaid records, granting to Alabama Power Company the
right to construct, maintain and operate a power line within that certain
30-foot right of way belonging to The Water Works Board of the City of
Birmingham, under and by the virtue of that certain easement dated December
17, 1974 and recorded in Real Volume 1135, page 661, aforesaid records.
16. 75-foot buffer located along the easternmost boundary of the subject
property, as required pursuant to those certain restrictive covenants
imposed by Valley Center Development Corporation by instrument dated
January 30, 1970, and recorded in Real Volume 1033, page 198, aforesaid
records, as amended by that certain instrument dated August 17, 1983, and
recorded at Real Volume 2378, page 213, aforesaid records, among Xxxxxxx X.
Xxxxx, Xxxxxx X. Xxxxx, Xxxx X. Xxxxxxxxx and Xxxxxx Xxxxxxx Xxxxxxxx, as
beneficiaries under a certain trust recorded at Volume 3458, page 377,
aforesaid records, Mount Royal Towers, Inc., Brookwood One, A Limited
Partnership and Brookwood Properties, Ltd., which contain no reversionary
clause and have not been violated and future violations will not result in
forfeiture or reversion of title.
17. Lease Agreement dated June 25, 1974, by and between Brookwood Two, A
Limited Partnership, as "landlord," Vulcan, as "tenants", and Brookwood
One, A Limited Partnership, and recorded in Real Volume 1151, page 314,
Jefferson County, Alabama records; as amended by letter agreement dated
June 25, 1974, recorded in Real Volume 1151, page 366, aforesaid records,
as further amended by First Supplement And Amendment To Lease Agreement
dated August 23, 1974, recorded in Real Volume 1151, page 356, aforesaid
records, as further amended by letter agreement dated September 23, 1974,
recorded in Real Volume 1151, page 368, aforesaid records; as further
amended by Supplement And Amendment to Lease Agreement dated January 17,
1975 recorded in Real Volume 1151, page 361, aforesaid records; as further
amended by letter agreement dated February 19, 1975; as further amended by
Supplement And Amendment To Lease Agreement dated August 8, 1975; recorded
in Real Volume 1222, page 551, aforesaid records; as supplemented by Lease
of Unoccupied Space dated August 10, 1975; as further amended by Supplement
And Amendment To Lease Agreement dated September 17, 1975, recorded in Real
Volume 1235, page 71, aforesaid records; as further amended by Supplement
and Amendment to Lease Agreement And to Lease of Unoccupied Space dated
July 14, 1976; as further amended by Supplement And Amendment To Lease
Amendment And To Lease of Unoccupied Space dated January 31, 1978; as
further amended by Supplement And Amendment to Lease Agreement And To Lease
of Unoccupied Space dated February 15, 1980; as further amended by
Supplement And Amendment to Lease Agreement and Termination of Lease of
Unoccupied Space dated August 30, 1983.
18. Agreement to Adopt Restrictive and Protective Covenants dated July 25,
1974, between and among Brookwood One, Brookwood Two and the City of
Birmingham, Alabama, a municipal corporation, recorded in Real Volume 1091,
page 325, aforesaid records; and that certain Agreement to Adopt
Restrictive and Protective Covenants dated August 23, 1974, between and
among Brookwood One, Brookwood Two and the City of Mountain Brook, Alabama,
a
2
municipal corporation and recorded in Real Volume 1101, page 267, aforesaid
records; as such restrictive and protective covenants were modified in that
certain decision of the Supreme Court of Alabama in Fugazzoto v. Brookwood
One, 325 So. 2d, 151 (Ala. 1976).
19. Right-of-way granted Alabama Power Company recorded in Real Volume 3619,
page 948.
20. Any loss, claim, liability, cost, expense, and attorney fee occasioned by
any limitation and control of access on to and off of Parcels 1 and 2 from
Xxxxx Road, based on, or arising from, the Metrogate Agreement dated August
31, 1983 between First Capital Income Properties, Ltd.--Series VIII and
Brookwood V., Ltd., which instrument is presently unrecorded; or based on,
or asserted rights of owners of other properties affected by the use of
Xxxxx Road to prevent uncontrolled or unlimited access to Xxxxx Road off
of, and on to, Parcels 1 and 2 by the use of Xxxxx Road.
21. Unpaid municipal improvement assessments.
3
EXHIBIT C
SERVICE CONTRACTS
-----------------
Contractor Service Provided Contract Type Annual Cost
---------- ---------------- ------------- -----------
Ace Window Window Washing Annual $ 8,200
Xxxxx Elevator Monthly PM Serv Annual 12,216
Xxxxxxxx Xxxxxx Waste Removal Annual 6,000
Carrier HVAC PM Annual 21,600
Entergy Security Fire/Burglar Alarm 5 year 1,500
Environmental Design Landscaping Annual 46,000
Graphic Corp PM copier Annual 480
Message Technology Answering Serv Annual 1,200
Nalco HVAC Water Treatment Regional 7,080
Page Net Pager Serv Annual 840
Xxxxxxxx Industries Janitorial/Cleaning Svc Annual ***
Xxxxxxx Organization PM FAX Annual 320
Unitog/Cintas Uniform Rental Regional 3 yrs 1,500
Watnes Pest Control Pest Control Annual 1,740
Xxxxxxx Leasing Annual Varies with size
of lease, etc.
Construction Contracts
----------------------
Xxxxxxx Fire Install Fire Pump Construction $ 54,189
Protection
Hallmark Builders 1st Floor Bldg I Exit Construction 46,854
Corridors
Hallmark Builders Fire Pump Room Construction Construction 26,998
Hallmark Builders Fire Alarm/Ceiling Work Construction 97,471
(Pending)
Xxxxx Construction Fire Rating 3/rd/ Floor Construction 12,203
Bldg. I Corridors
Xxxxxxx Fire Sprinklers Construction 137,500
Protection
Xxxxxxx Installation of Window Construction 20,529
Blinds
Law Engineering Sprinklers and Corridor ACM Abatement 6,910
Pettitjean & Xxxxxxx Fire Pumps Consultant 7,500
Pettitjean & Xxxxxxx Sprinklers Consultant 8,000
Pettitjean & Xxxxxxx Corridor Extension Consultant 4,500
Law Engineering ACM Survey ACM Abatement 7,540
***Based on Occupancy Sq Ft @ $.05833 Per Sq Ft
Current Occupancy
BLDG I 35,165 $2,052
BLDG II 53,238 $3,106
TOTAL $5,158
2
EXHIBIT D
JOINT ORDER ESCROW AGREEMENT
----------------------------
BROOKWOOD METROPLEX
Birmingham, Alabama
Escrow Officer: Xxxxxxxx Xxxxxxx
Escrow No.: 00-000000-00
Phone No. (000) 000-0000
Facsimile No. (000) 000-0000
Date: July __, 1999
TO: LandAmerica National Commercial Services
00 Xxxxx XxXxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Xxxxxxxx Xxxxxxx
The amount of Three Hundred Thousand Dollars ($300,000) (the "Escrow Deposit")
is deposited with the Chicago Office of Land America National Commercial
Services, in escrow by BOARDWALK MANAGEMENT CORPORATION, an Alabama corporation,
the "Purchaser" under that certain Purchase And Sale Agreement (the
"Agreement"), dated July _____, 1999, with FIRST CAPITAL INCOME PROPERTIES,
LTD.- SERIES VIII, a Florida limited partnership, as the "Seller".
As escrowee, you are hereby directed to hold, deal with and dispose of the
Escrow Deposit in accordance with the following terms and conditions (this
"Escrow Agreement"):
1. You are to hold the Escrow Deposit until: (a) you are in receipt of a joint
order by the undersigned Seller and Purchaser as to the disposition of the
Escrow Deposit; or (b) you are in receipt of a written demand (the
"Demand") from either Seller or Purchaser for the payment of the Escrow
Deposit or any portion thereof. Upon receipt of any Demand, you are
directed to so notify the other party, enclosing a copy of the Demand. If
within five (5) days after the non-demanding party has received or is
deemed to have received your notice of your receipt of the Demand, you have
not received from the non-demanding party its notice of objection to the
Demand, then you are to disburse the Escrow Deposit as requested by the
Demand. If within said five-day period you receive from the non-demanding
party its notice of objection to the Demand, then you are to continue to
hold the Escrow Deposit until you are in receipt of a joint order as
aforesaid, but after sixty (60) days you may deposit the Escrow Deposit
with a Court of competent jurisdiction. Notwithstanding the foregoing
provisions of this Section 1, in the event that you receive a Demand from
the Purchaser on or before the thirtieth (30/th/) day after the Delivery
Date (as hereinafter defined) and such Demand states that Purchaser is
terminating the Agreement prior to the expiration of the Inspection Period
in accordance with Section 8.A. thereof, you shall disburse the Escrow
Deposit pursuant to such Demand immediately. As used herein, the term
"Delivery Date" shall mean the date upon which Seller provides the last of
the items required to be delivered to
Purchaser in accordance with Section 8.A.(i) of the Contract, as such date
is set forth in a written document from Seller to Purchaser delivering such
items.
2. Notwithstanding any provision of this instrument to the contrary, as
escrowee, you are hereby expressly authorized to regard and to comply with
and obey any and all orders, judgments or decrees entered or issued by any
Court, and in case you obey or comply with any such order, judgment or
decree of any Court, you shall not be liable to either of the parties
hereto or any other person or entity by reason of such compliance,
notwithstanding any such order, judgment or decree be entered without
jurisdiction or be subsequently reversed, modified, annulled, set aside or
vacated. In case of any suit or proceeding regarding this Escrow Agreement,
to which you are or may at any time be a party, the undersigned Seller and
Purchaser agree that the non-prevailing party shall pay to you upon demand
all reasonable costs and expenses incurred by you in connection herewith.
3. Any escrow fee to be charged by you is to be borne equally by the
undersigned Seller and Purchaser.
4. As escrowee, you shall invest the Escrow Deposit in an interest-bearing
savings or money market account or short term U.S. Treasury Bills or
similar cash equivalent securities, as the undersigned Purchaser may
direct. Any interest earned on the Escrow Deposit, after you deduct your
customary investment charges, if any, shall become and be deemed to be a
part of the Escrow Deposit.
5. All notices or other communications hereunder shall be in writing and shall
be personally delivered or sent by overnight courier (such as Federal
Express), by facsimile transmission or by first class United States Mail,
postage prepaid, registered or certified (return receipt requested) to the
respective addresses for the Seller, Purchaser and escrowee as herein
provided. A notice is given on the date it is personally delivered, sent by
overnight courier or facsimile transmission, or deposited with the United
States Mail for delivery as aforesaid. A notice is received on the date it
is personally delivered, the day after sent if sent by overnight courier or
facsimile transmission or, if sent by mail as aforesaid, on the date noted
on the return receipt.
6. Either Seller or Purchaser may act hereunder either directly or through the
following individuals, respectively, or their counsel (also set forth
below):
For Seller:
Xxxxxx Field
First Capital Financial Corporation
Two Xxxxx Xxxxxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
2
For Purchaser:
Xxxxxx Xxxxxxxxxx
000 Xxxxxx Xxxx Xxxxx
Xxxxx 000
Xxxxxxxxxx, Xxxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
The attorney for Seller is:
Xxxxx Xxxxxxx
Xxxxxxxxx & Xxxxxxxxxxx, P.C.
Suite 0000
Xxx Xxxxx Xxxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
The attorney for Purchaser is:
Xxxxx Xxxxxxx
Xxxxx & Xxxxxxx, LLP
0000 Xxxxx Xxxxxx Xxxxx
Xxxxx 0000
Xxxxxxxxxx, Xxxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
7. This Escrow Agreement is being entered into to implement the Agreement and
shall not (nor be deemed to) amend, modify or supersede the Agreement or
act as a waiver of any rights, obligations or remedies set forth therein;
provided, however, that you may rely solely upon this Escrow Agreement.
3
Agreed and Acknowledged this ____ day of __________, 1999
PURCHASER: SELLER:
BOARDWALK MANAGEMENT FIRST CAPITAL INCOME PROPERTIES,
CORPORATION, an Alabama corporation LTD. - SERIES VIII, a Florida limited partnership
By: First Capital Financial Corporation, a
Florida corporation, its general partner
By: __________________________ By: _____________________________
Name: ________________________ Name: ___________________________
Title: _______________________ Title: __________________________
Agreed and Acknowledged this ___ day of __________, 1999
Land America National Commercial Services
By: ___________________________
Title: ________________________
4
EXHIBIT E
ASSIGNMENT AND ASSUMPTION
OF LEASES AND SECURITY DEPOSITS
-------------------------------
THIS ASSIGNMENT AND ASSUMPTION OF LEASES AND SECURITY DEPOSITS (this
"Assignment") is entered into as of the ______________ day of __________, 1999,
by and between FIRST CAPITAL INCOME PROPERTIES, LTD. - SERIES VIII, a Florida
limited partnership ("Assignor"), having offices at Xxx Xxxxx Xxxxxxxxx Xxxxx,
Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000, and BOARDWALK MANAGEMENT CORPORATION, an
Alabama corporation ("Assignee"), having offices at 000 Xxxxxx Xxxx Xxxxx, Xxxxx
000, Xxxxxxxxxx, Xxxxxxx 00000.
1. Property. The "Property" shall mean the real property located in the
--------
City of Birmingham, County of Jefferson, State of Alabama, legally described in
EXHIBIT A attached to this Assignment, together with all of Assignor's right,
---------
title and interest in and to the buildings, structures and other improvements
located thereon, and commonly known as "Brookwood Metroplex".
2. Leases. The "Leases" shall mean all leases affecting the Property, or
------
any part thereof, which leases are listed on EXHIBIT B attached hereto. "Lease"
---------
shall mean any one of the Leases.
3. Security Deposits. "Security Deposits" shall mean all unapplied
-----------------
security deposits held by Assignor under the Leases that are set forth on
EXHIBIT C attached hereto.
---------
4. Contract. "Contract" shall mean that certain Purchase And Sale
--------
Agreement dated July __, 1999 by and between Assignor, as Seller, and Assignee,
as Purchaser, for the purchase and sale of the Property.
5. Assignment. For good and valuable consideration received by Assignor,
----------
the receipt and sufficiency of which are hereby acknowledged, Assignor hereby
assigns to Assignee the entire right, title and interest of Assignor in and to
the Leases and the Security Deposits as applicable to the period from and after
the date hereof.
6. Assumption. Assignee hereby assumes all of the covenants, agreements
----------
and obligations of Assignor under or in connection with the Leases as applicable
to the period from and after the date hereof, and Assignee further assumes all
liability of Assignor for the proper refund or return of the Security Deposits
and the interest on the Security Deposits if, when and as required by the Leases
or otherwise by law. In addition, Assignee agrees to pay all Tenant Inducement
Costs (as such term is defined in the Contract) and leasing commissions (i) set
forth on EXHIBIT D attached hereto, and (ii) which are set forth in a Lease
---------
existing as of the date of the Contract, and pursuant to the applicable Lease
are not payable in connection with the existing (or any prior) term of tenancy
of the applicable premises covered by such Lease.
7. Enforcement. If Assignor or Assignee must resort to a court of law or
-----------
equity in order to enforce the provisions of this Assignment as against the
other, the non-prevailing party shall pay the reasonable attorney's fees and
expenses of the prevailing party.
8. Third Parties. Except as set forth in Section 10 of this Assignment,
-------------
no third party shall have the benefit of any of the provisions of this
Assignment, nor is this Assignment made with the intent that any person or
entity other than Assignor or Assignee rely hereon.
9. Limited Liability. By accepting this Assignment, Assignee expressly
-----------------
understands and agrees that any recovery against Assignor that Assignee may be
entitled to as a result of any claim, demand or cause of action that Assignee
may have against Assignor with respect to this Assignment shall only be
recoverable against Assignor as provided in Section 11.Q. of the Contract.
10. Successors and Assigns. This Assignment shall be binding upon and
----------------------
inure to the benefit of the parties hereto and their respective successors and
assigns.
11. Counterparts. This Assignment may be executed in any number of identical
------------
counterparts, any or all of which may contain signatures of fewer than all of
the parties but all of which taken together shall constitute a single
instrument.
IN WITNESS WHEREOF, Assignor and Assignee have executed this Assignment the
day and year first above written.
ASSIGNOR:
FIRST CAPITAL INCOME PROPERTIES,
LTD. - SERIES VIII, a Florida limited partnership
By: First Capital Financial Corporation, a Florida
corporation, its general partner
By: ___________________________________
Name: _________________________________
Title: ________________________________
ASSIGNEE:
BOARDWALK MANAGEMENT CORPORATION, an
Alabama corporation
By: ________________________________________
Name: ______________________________________
Title: _____________________________________
2
EXHIBITS
--------
A - Legal Description of the Property
B - List of Leases
C - Security Deposits
D - Tenant Inducement Costs and Leasing Commissions
3
EXHIBIT F
ASSIGNMENT AND ASSUMPTION OF SERVICE CONTRACTS AND UTILITY DEPOSITS
-------------------------------------------------------------------
THIS ASSIGNMENT AND ASSUMPTION OF SERVICE CONTRACTS AND UTILITY DEPOSITS
(this "Assignment") is entered into as of the ____ day of __________, 1999 by
and between FIRST CAPITAL INCOME PROPERTIES, LTD. - SERIES VIII, a Florida
limited partnership ("Assignor"), having offices at Xxx Xxxxx Xxxxxxxxx Xxxxx,
Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000, and BOARDWALK MANAGEMENT CORPORATION, an
Alabama corporation ("Assignee"), having offices at 000 Xxxxxx Xxxx Xxxxx, Xxxxx
000, Xxxxxxxxxx, Xxxxxxx 00000.
1. Property. The "Property" shall mean the real property located in the
--------
City of Birmingham, County of Jefferson, State of Alabama, legally described in
EXHIBIT A attached to this Assignment, together with all of Assignor's right,
---------
title and interest in and to the buildings, structures and other improvements
located thereon, and commonly known as "Brookwood Metroplex".
2. Contract. "Contract" shall mean that certain Purchase And Sale
--------
Agreement dated _______________, 1999 by and between Assignor, as Seller, and
Assignee, as Purchaser, for the purchase and sale of the Property.
3. Service Contracts. "Service Contracts" shall mean the service
-----------------
contracts entered into with respect to the ownership and operation of the
Property that are listed on EXHIBIT B attached to this Assignment.
---------
4. Utility Deposits. "Utility Deposits" shall mean the refundable cash
----------------
or other deposits posted with utility companies serving the Property which are
set forth on EXHIBIT C attached hereto and for which Seller received a credit
---------
from Purchaser at Closing (as defined in the Contract) on the Closing Statement
(as defined in the Contract).
5. Assignment. For good and valuable consideration received by Assignor,
----------
the receipt and sufficiency of which are hereby acknowledged, Assignor hereby
assigns to Assignee the entire right, title and interest of Assignor in and to
the Service Contracts and the Utility Deposits as applicable to the period from
and after the date hereof. As between Assignor and Assignee and subject to
Section 4.C. of the Contract, Assignor shall remain responsible for all
obligations of the "owner' under the Service Contracts attributable to the
period prior to Closing.
6. Assumption. Assignee hereby assumes all of the covenants, agreements
----------
and obligations of Assignor under or in connection with the Service Contracts
and the Utility Deposits as applicable to the period from and after the date
hereof.
7. Enforcement. If Assignor or Assignee must resort to a court of law or
-----------
equity in order to enforce the provisions of this Assignment as against the
other, the non-prevailing party shall pay the reasonable attorney's fees and
expenses of the prevailing party.
8. Third Parties. Except as set forth in Section 11 of this Assignment,
-------------
no third party shall have the benefit of any of the provisions of this
Assignment, nor is this Assignment made with the intent that any person or
entity other than Assignor or Assignee shall rely hereon.
9. No Representations or Warranties. This Assignment shall not be
--------------------------------
construed as a representation or warranty by Assignor as to the transferability
of the Service Contracts, and Assignor shall have no liability to Assignee in
the event that any or all of the Service Contracts (i) are not transferable to
Assignee or (ii) are canceled or terminated by reason of this assignment or any
acts of Assignee.
10. Limited Liability. By accepting this Assignment, Assignee expressly
-----------------
understands and agrees that any recovery against Assignor that Assignee may be
entitled to as a result of any claim, demand or cause of action that Assignee
may have against Assignor with respect to this Assignment shall only be
recoverable against Assignor as provided in Section 11.Q. of the Contract.
11. Successors and Assigns. This Assignment shall be binding upon and
----------------------
inure to the benefit of the parties hereto and their respective successors and
assigns.
12. Counterparts. This Assignment may be executed in any number of
------------
identical counterparts, any or all of which may contain signatures of fewer than
all of the parties but all of which taken together shall constitute a single
instrument.
[the remainder of this page is intentionally blank]
2
[signature page attached to Assignment and Assumption of Service Contracts and
Utility Deposits]
IN WITNESS WHEREOF, Assignor and Assignee have executed this Assignment the
day and year first above written.
ASSIGNOR:
FIRST CAPITAL INCOME PROPERTIES,
LTD. - SERIES VIII, a Florida limited partnership
By: First Capital Financial Corporation, a Florida
corporation, its general partner
By: _____________________________________
Name: ___________________________________
Title: __________________________________
ASSIGNEE:
BOARDWALK MANAGEMENT CORPORATION, an
Alabama corporation
By: __________________________________________
Name: ________________________________________
Title: _______________________________________
EXHIBITS
--------
A - Legal Description of Property
B - Service Contracts
C - Utility Deposits
3
EXHIBIT G
FORM TENANT ESTOPPEL CERTIFICATE
--------------------------------
TENANT ESTOPPEL CERTIFICATE
---------------------------
[Brookwood Metroplex, Birmingham, Alabama]
____________, 1999
TO: First Capital Income Properties, Boardwalk Management Corporation
Ltd. - Series VIII ("Landlord") ("Purchaser")
c/o The Equity Group 000 Xxxxxx Xxxx Xxxxx
Two North Riverside Plaza Suite 100
Suite 2200 Xxxxxxxxxx, Xxxxxxx 00000
Xxxxxxx, Xxxxxxxx 00000
FROM: ((Tenant))
((Suite))
For good and sufficient consideration, receipt of which is hereby
acknowledged, and for the purposes of providing information regarding the
premises known as Brookwood Metroplex (the "Building"), Suite ______ (the
"Premises"), in which the undersigned is a tenant under that certain lease
agreement (the "Lease") between ________________ ("Tenant") and
____________________ ("Landlord"), the undersigned Tenant does hereby certify to
Landlord, Purchaser, its lenders and their respective successors and assigns
that:
1. Attached hereto as EXHIBIT A is a true, correct and complete copy of
---------
the Lease and all amendments and modifications (including letter or informal
amendments, modifications, etc.).
2. Each of the following is true and complete with respect to the Lease
and Tenant's occupancy of the Premises:
a) Date of Lease:
b) Date of Amendments or Modifications (including letter or informal
amendments, modifications, etc.):
c) Term of Lease: Date of Commencement:
Date of Expiration:
d) Monthly Rent:
Future Rent Abatement Date:
e) The base year for operating expense reimbursements and real
estate taxes:
f) Security Deposit held and not applied by Landlord: ____________
g) Tenant has no right to any "free rent" or rent credit as of the
date of this certificate, except as follows: ___________________
3. The Lease is valid and enforceable according to its terms against
Tenant and has not been modified either orally or in writing except as specified
in paragraph 1(b), above.
4. Landlord is not in default under the Lease.
5. Tenant has not assigned any of its interest in the Lease or subleased
all or any portion of the Premises, except as follows:
6. Tenant has no defenses, counterclaims, set-offs or concessions against
rent or charges due or to become due under the Lease.
7. Tenant has unconditionally accepted the Premises and has commenced
payment of full rent under the Lease and is the owner and holder of the entire
tenant's interest in the Lease.
8. All work required to be performed by Landlord as of the date hereof
with respect to the Lease and in connection with the Premises has been completed
by Landlord to the satisfaction of Tenant.
9. Tenant has no right or option pursuant to the Lease or otherwise to
purchase all or any part of the Premises or the Building.
10. This Tenant Estoppel Certificate (this "Certificate") shall inure to
the benefit of Landlord, Purchaser, its lenders and their respective successors
and assigns.
11. No broker is due a commission from or through Landlord or tenant in
connection with the Lease, or any renewal, extension or expansion of space
thereof or thereunder, except as set forth in the Lease or: ___________________
12. The address for all notices required to be delivered to Tenant (and
any other party required to receive copies of notices) under the Lease is
stated in the Lease.
13. This certification may not be changed, waived or discharged orally,
but only by an agreement in writing.
2
The statements contained herein may be relied upon by the parties to which this
certificate is addressed. The undersigned person hereby certifies that he or she
is duly authorized to execute and deliver this Tenant Estoppel Certificate on
behalf of Tenant.
Very truly yours,
[TENANT]
By: _________________________
Name: _______________________
Title: ______________________
Date: ________________, 1999
3
EXHIBIT H
LIMITED WARRANTY DEED
---------------------
THIS INSTRUMENT PREPARED BY: SEND TAX XXXX TO:
___________________________ _________________________
___________________________ _________________________
___________________________ _________________________
___________________________ _________________________
LIMITED WARRANTY DEED
STATE OF___________ )
)
____________ COUNTY )
KNOW ALL MEN BY THESE PRESENTS, That for and in consideration of the sum of
Ten and No/100 Dollars ($10.00), in hand paid and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
___________________________________________________________ ("Grantor"), has
granted, bargained, sold and conveyed and by these presents does grant, bargain,
sell and convey unto ______________, a ______________ ("Grantee"), Grantee's
successors and assigns, that certain real property in ____________________
County, State of Alabama, described on Exhibit "A", which is attached hereto and
incorporated herein by reference, together with all of Grantor's rights in and
to all easements and other appurtenances thereto. Such property is herein
referred to as the "Property."
This conveyance of the Property and the covenants and warranties contained
herein are made expressly subject to the matters set forth on Exhibit "B" which
is attached hereto and incorporated herein by reference as well as to all taxes
for the year ____________ and subsequent years not yet due and payable.
TO HAVE AND TO HOLD to said Grantee, its successors and assigns forever.
This is a limited warranty deed. Grantor's only warranties hereunder are
that this deed is executed and delivered with full authority of Grantor; that
Grantor is seized of an indefeasible estate in fee simple subject to the matters
set forth on Exhibit "B" which is attached hereto and incorporated herein by
reference; that Grantor warrants that is has done nothing to adversely affect
title since title was placed in its name, and that the Property is free from all
encumbrances made or suffered by Grantor except to the extent otherwise set
forth herein. No other warranties, express, implied or created by statute are
included in this deed.
IN WITNESS WHEREOF, the said Grantor, hereto sets its signature and seal
this ______ day of ______________, 199__.
GRANTOR:
_____________________________
By:__________________________
Its:_________________________
STATE OF___________ )
)
____________ COUNTY )
I, the undersigned, a Notary Public in and for said County, in said State
hereby certify that ______________________________________, whose name as
_________________________ of ________________________ , is signed to the
foregoing Limited Warranty Deed, and who is known to me, acknowledged before me
on this day, that, being informed of the contents thereof, he, as such officer
and with full authority, executed the same voluntarily for and on behalf of said
________________________________.
Given under my hand and official seal this _______ day of _______ , 199___.
_____________________________
Notary Public
Commission Expires:__________
2
EXHIBIT I
LIST OF LITIGATION
------------------
First Capital Income Properties, Ltd. - Series VIII v. Boardwalk Management
Corporation and Metropolitan Properties, Inc., U.S. District Court for the
Northern District of Alabama, Southern Division, Case No. CV-98-C-1058-S.
EXHIBIT J
XXXX OF SALE
------------
SPECIAL WARRANTY XXXX OF SALE
-----------------------------
THIS SPECIAL WARRANTY XXXX OF SALE (this "Xxxx of Sale") is executed as of
the ____ day of _________, l998, by FIRST CAPITAL INCOME PROPERTIES, LTD. -
SERIES VIII, a Florida limited partnership ("Seller"), having offices at Xxx
Xxxxx Xxxxxxxxx Xxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000, in favor of
BOARDWALK MANAGEMENT CORPORATION, an Alabama corporation ("Purchaser"), having
offices at 000 Xxxxxx Xxxx Xxxxx, Xxxxx 000, Xxxxxxxxxx, Xxxxxxx 00000.
1. Property. The "Real Property" shall mean the real property located in
--------
the City of Birmingham, County of Jefferson, State of Alabama, legally described
in EXHIBIT A attached to this Xxxx of Sale, together with all of Seller's right,
---------
title and interest in and to the buildings, structures and other improvements
located thereon, and commonly known as "Brookwood Metroplex".
2. Personal Property. The "Personal Property" shall mean the Tangible
-----------------
Personal Property as defined in that certain Purchase And Sale Agreement dated
the ___ day of _____________, 1999 (as amended, the "Contract"), by and between
Seller, as the "Seller" thereunder, and Purchaser, as the "Purchaser" thereunder
with respect to the purchase and sale of the Real Property and other property as
described therein, as such Personal Property is more particularly described on
attached EXHIBIT C.
---------
3. Sale. For good and valuable consideration received by Seller, the
----
receipt and sufficiency of which are hereby acknowledged, Seller hereby sells,
assigns and transfers the Personal Property to Purchaser free of any liens or
encumbrances other than those matters set forth on EXHIBIT B attached hereto
---------
(the "Permitted Exceptions"). Seller covenants and agrees to warrant specially
and forever defend title to the Personal Property unto Purchaser against all and
every person or persons lawfully claiming the whole or any part thereof by,
through or under Seller, and none other, but subject in any event to the
Permitted Exceptions. Except as set forth in the two (2) preceding sentences,
Seller makes no warranties or representations as to the Personal Property. The
Personal Property is transferred "AS IS, WHERE IS" and ALL WARRANTIES OF
QUALITY, FITNESS AND MERCHANTABILITY ARE HEREBY EXCLUDED.
4. Limited Liability. By accepting this Xxxx of Sale, Purchaser
-----------------
expressly understands and agrees that any recovery against Seller that Purchaser
may be entitled to as a result of any claim, demand or cause of action that
Purchaser may have against Seller with respect to this Xxxx of Sale shall only
be recoverable against Seller as provided in Section 11.Q. of the Contract.
IN WITNESS WHEREOF, Seller has executed this Xxxx of Sale the day and year
first above written.
SELLER:
EXHIBIT K
TANGIBLE PERSONAL PROPERTY
--------------------------
Furniture & Office Supplies
Quantity Item
-------- ----
1 Oak Desk
2 Oak 2-drawer file cabinet
2 Secretarial chairs
1 General Electric mini fridge
2 coffee makers
1 small microwave oven
3 oak / upholstered chairs
1 oak console table
1 large painting
2 framed pictures
3 table lamps
1 Hon 4-drawer file cabinet
1 Hon 2-drawer file cabinet
1 Mahogany executive desk
1 Mahogany swivel desk chairs
2 Mahogany side chairs
1 Mahogany credenza
1 cherry book case
1 oak folding table
4 dark folding tables
20 chrome conference chairs
Tools / Shop Inventory
Quantity Item
-------- ----
2 sets Misc hand tools
1 18 volt cordless drill
1 socket set
4 6' step ladders
2 8' step ladders
1 replacement supply air fan
1 replacement return air fan
1 replacement gear box - cooling tower
1 replacement fan motor - cooling tower
1 replacement pump motor
1 replacement condenser water pump
1 replacement starter - cooling tower
3 main switch gear fuses
1 vacuum blower
1 misc spare fuses
1 misc plumbing supplies
1 misc light bulb stock
1 misc ballast stock
1 24' extension ladder
3 4-wheel wooden dollies
1 misc spare thermostat stock
1 upright handtruck
1 Replacement chilled water pump
2
EXHIBIT L
---------
NOTICE LETTER TO TENANTS
------------------------
[Letterhead of Equity Office Properties Management Corp.]
NOTICE TO TENANTS
______________, 1999
Re: Brookwood Metroplex, Birmingham, Alabama (the "Property")
Dear Tenant:
This is to notify you that the Property has been sold to _____________,
and that ________________________ has been retained by the new owner as managing
agent of the building .
Any unapplied security or other deposits and any prepaid rents under your
lease have been transferred to the new owner.
Effective immediately, all rental payments, notices to the Landlord, and
correspondence pursuant to your lease should be mailed to the following address:
Rents: Notices:
_____________________________ __________________________________________
_____________________________ __________________________________________
_____________________________ __________________________________________
Attention: __________________
Additionally, please have new Certificates of Insurance issued naming
____________________ as an additional insured. Please deliver said Certificate
to new owner at the "Notices" address set forth above.
Very truly yours,
EQUITY OFFICE PROPERTIES MANAGEMENT CORP., a
Delaware corporation, as agent
By: _________________________________________
Name:________________________________________
Its: ________________________________________
EXHIBIT M
---------
NOTICE LETTER TO VENDORS
------------------------
[Letterhead of Equity Office Properties Management Corp.]
__________________, 1999
[Vendor]
_________________________
_________________________
Re: Sale of Brookwood Metroplex
Birmingham, Alabama (the "Property")
------------------------------------
Dear Service Provider:
This is to notify you that the Property has been sold to _____________, a
_________ ("Purchaser"), and that _________________, having an office at
_____________________________, has been retained by the Purchaser of the
Property as managing agent of the building. Purchaser has assumed all of the
obligations of the undersigned under the [license agreements/service contracts]
with respect to the period from and after the date hereof. All notices to
Purchaser should be sent to Purchaser at the office of the building, and should
be sent or delivered to such address in the manner provided in the [license
agreement/service contract].
Very truly yours,
EQUITY OFFICE PROPERTIES MANAGEMENT CORP., a
Delaware corporation, as agent
By: _________________________________________
Name:________________________________________
Its: ________________________________________
EXHIBIT N
RENT ROLL
---------
Brookwood Metroplex One
Suite Tenant Name Lease Lease Step Date Rent Monthly Base Monthly Expense Base Year Security Deposits
Sq. Ft. End PSF Rent Reimbursement
100 Vacant 20,766 Current $ 0.00 $ 0 $0
------------------------------------------------------------------------------------------------------------------------------------
200 Vacant 20,766 Current $ 0.00 $ 0 $0
------------------------------------------------------------------------------------------------------------------------------------
300 J & H Xxxxx XxXxxxxx 12,388 05/04 Current $ 0 $ 0 $0 Base Year 1999 $ 0
08/99 $18.25 $18,840
06/00 $18.75 $19,356
06/01 $19.30 $19,924
06/02 $20.00 $20,647
06/03 $20.75 $21,420
------------------------------------------------------------------------------------------------------------------------------------
301 Vacant 8,378 Current $ 0.00 $ 0 $0
------------------------------------------------------------------------------------------------------------------------------------
400 Xxxxxx, Xxxxxx & Xxxxxx, Inc. 20,767 10/04 Current $ 0.00 $ 0 $0 Base Year 1999 $30,285.21
11/99 $17.50 $30,285
11/00 $17.85 $30,891
11/01 $18.21 $31,513
11/02 $18.57 $32,136
11/03 $18.94 $32,777
------------------------------------------------------------------------------------------------------------------------------------
500 Vacant 20,767 Current $16.25 $ 0 $0
$16.50
------------------------------------------------------------------------------------------------------------------------------------
Brookwood Metroplex Two
Suite Tenant Name Lease Lease Step Date Rent PSF Monthly Base Monthly Expense Base Year Security Deposits
Sq. Ft. End Rent Reimbursement
100 Officers Benefit 3,569 9/99 Current $15.50 $4,609 $ 0 1992
Association
------------------------------------------------------------------------------------------------------------------------------------
101 Sumi's Deli 1,135 5/02 Current $ 3.17 $ 300 $ 0 0 $ 618.00
------------------------------------------------------------------------------------------------------------------------------------
102 Lighting Corporation of 2,260 MTM Current $14.75 2,778 $ 14.86 1995
America/1/
------------------------------------------------------------------------------------------------------------------------------------
103 Vacant 581 - - - - - - -
------------------------------------------------------------------------------------------------------------------------------------
104 Personnel Service, Inc. 390 6/00 Current $16.25 528 $ 0
7/99 $16.50 536
------------------------------------------------------------------------------------------------------------------------------------
107 Right Management 1,709 11/99 Current $17.75 2,528 $ 11.11 1997
Consulting
------------------------------------------------------------------------------------------------------------------------------------
109 Vacant 601 - - - - - - -
------------------------------------------------------------------------------------------------------------------------------------
110 Charter One 2,910 3/00 Current $16.00 3,880 $169.87 1989
------------------------------------------------------------------------------------------------------------------------------------
111 Capital Strategies Group 6,537 12/03 Current $15.75 $8,579 $ 42.38 1997 $8,622.19
1/00 $16.00 $8,716
1/01 $16.25 $8,852
1/2 $16.50 $8,988
1/03 $17.50 $9,533
------------------------------------------------------------------------------------------------------------------------------------
200 Castle Mortgage 7,256 10/00 Current $13.75 $8,314 $ 0 1995
Corporation 11/99 $14.00 $8,465
------------------------------------------------------------------------------------------------------------------------------------
202 Vacant 10,501 Current $ 0.00 $ 0
------------------------------------------------------------------------------------------------------------------------------------
220 Highland Capital 3,465 3/03 Current $17.50 $5,053 $ 6.04 1998 Letter-of-
Management 4/00 $17.75 $5,125 Credit-initial
4/01 $18.00 $5,198 amount of
4/02 $18.25 $5,269 $53,101; present
amount is
$42,480; reduces
periodically
based on terms of
lease
------------------------------------------------------------------------------------------------------------------------------------
_______________________
/1/ Presently Lighting Corporation of America occupies this space as a holdover
tenant on a month-to-month basis while Landlord and Tenant are negotiating a
lease extension agreement.
2
Suite Tenant Name Lease Lease Step Date Rent Monthly Base Monthly Expense Base Year Security Deposits
Sq. Ft. End PSF Rent Reimbursement
------------------------------------------------------------------------------------------------------------------------------------
300 American Behavioral 3,126 11/03 Current $16.50 $4,298 $21.34 1998
Benefits Managers 12/99 $17.00 $4,428
12/00 $17.50 $4,559
12/01 $18.03 $4,697
12/02 $18.57 $4,837
------------------------------------------------------------------------------------------------------------------------------------
301 Management 854 Current $ 0.00 $ 0 None
------------------------------------------------------------------------------------------------------------------------------------
302 Hartford Insurance 1,915 2/04 Current $17.50 $2,793 0 1998
303 Company 3/00 $18.03 $2,877
3/01 $18.57 $2,963
3/02 $19.12 $3,052
3/03 $19.70 $3,144
------------------------------------------------------------------------------------------------------------------------------------
304 Vacant 2,440 Current $ 0.00 $ 0
------------------------------------------------------------------------------------------------------------------------------------
305 Xxxxxxxxxx & Xxxx 2,600 11/99 Current $14.00 $3,033 $13.35 1995
------------------------------------------------------------------------------------------------------------------------------------
306 Management 189 Current $ 0.00 $ 0 None
------------------------------------------------------------------------------------------------------------------------------------
307 Vacant 2,160 Current $ 0.00 $ 0
------------------------------------------------------------------------------------------------------------------------------------
310 Vacant 4,302 Current $ 0.00 $ 0
------------------------------------------------------------------------------------------------------------------------------------
311 Atrion Medical Products 1,032 MTM Current $18.98 $1,632 $ 0 $1,376.00
------------------------------------------------------------------------------------------------------------------------------------
312 Vulcan Materials 1,702 11/00 Current $14.50 $2,057 0 1995
------------------------------------------------------------------------------------------------------------------------------------
400 Vacant 21,207 Current $ 0.00 $ 0
------------------------------------------------------------------------------------------------------------------------------------
500 Behavioral Health 6,666 12/99 Current $14.50 $8,055 $ 0 1996 $ 754.00
Services, Inc.
------------------------------------------------------------------------------------------------------------------------------------
502 Xxxxxxx Realty 2,262 4/00 Current $16.25 $3,063 $14.65 1997
------------------------------------------------------------------------------------------------------------------------------------
504 XxXxxxxx Bains 3,850 9/02 Current $16.50 $5,294 $24.96 1997 Letter-of-
10/99 $17.00 $5,454 Credit-initial
10/00 $17.50 $5,614 amount of
10/01 $18.00 $5,775 $59,290; present
amount is
$47,432; reduces
periodically
based on terms
of lease
------------------------------------------------------------------------------------------------------------------------------------
505 Vulcan Materials 7,979 11/00 Current $14.50 $9,641 $ 0 1995
------------------------------------------------------------------------------------------------------------------------------------
999 X-Factor 634 Current $ 0.00 $ 0
------------------------------------------------------------------------------------------------------------------------------------
3
EXHIBIT O
OSHA LETTER
-----------
_________________, 1999
[Purchaser]
Re: Transmittal of Information Regarding Asbestos-Containing
Material and Presumed Asbestos-Containing Material
Ladies and Gentlemen:
As you know, the Occupational Safety and Health Administration ("OSHA") has
enacted regulations (the "OSHA Regulations") which require building owners to
provide information regarding the presence, location and quantity of asbestos
containing material ("ACM") and presumed ACM ("PACM") to various building
occupants, including employers of employees who lease space within the owner's
building. In addition, the OSHA Regulations, specifically 29 C.F.R.
(S)1910.1001(j)(2)(ii) and 29 C.F.R. (S)1926.1101(n)(6), require building owners
to keep records of all information required to be maintained by the OSHA
Regulations and to transmit such records to subsequent owners at or before the
time of closing.
[Name of Seller] ("Seller"), has, prior to the date of this letter,
provided [name of Purchaser] ("Purchaser") with copies of information required
to be maintained and transmitted as described above regarding ACM and PACM at
the property located at Brookwood Metroplex, Birmingham, Alabama, including
copies of notices to tenants and any related asbestos sampling results and
reports in our possession (such information, notices and reports being referred
to herein collectively as the "Reports"). A list of such Reports is set forth on
SCHEDULE 1 attached hereto.
----------
The undersigned makes no representation, warranty, promises, covenants,
agreements or guarantees of any kind or character whatsoever, express or
implied, oral or written, past, present or future, of, as to, concerning or with
respect to the information and documentation transmitted herewith including
without limitation, the accuracy or completeness of such Reports, the Reports'
compliance with the OSHA Regulations, or Seller's compliance with the OSHA
Regulations.
We request that you acknowledge receipt of this letter and the Reports by
signing below and forwarding an executed copy to Seller.
Sincerely,
FIRST CAPITAL INCOME PROPERTIES, LTD. -
SERIES VIII, a Florida limited partnership
By: First Capital Financial Corporation, a
Florida corporation, its general partner
By:_______________________________________
Name:_____________________________________
Title:____________________________________
Acknowledged receipt of this letter and the
Reports this _____ day of _______________, 1999.
BOARDWALK MANAGEMENT CORPORATION,
an Alabama corporation
By:_______________________________
Name:_____________________________
Title:____________________________
2
SCHEDULE 1
----------
TO
--
OSHA LETTER
-----------
LIST OF REPORTS
---------------
1. Report of Asbestos Air Monitoring, Third Floor, Brookwood Metroplex,
Birmingham, Alabama, prepared by LAW Engineering and Environmental
Services, Inc. ("LAW"), dated June 14, 1999
2. Report of Asbestos Air Monitoring, Main Lobby, Brookwood Metroplex,
Birmingham, Alabama, prepared by LAW, dated May 28, 1999
3. Report of Asbestos-Containing Materials Sampling at Two Metroplex Drive,
Birmingham, Alabama, prepared by LAW, dated May, 1999
4. Report of Prevalent Air Sampling and Asbestos Consulting, Two Metroplex
Drive, Birmingham, Alabama, prepared by LAW, dated April 23, 1999
5. Point-Count Results for the 3rd Floor Drywall Joint Compound Samples for
Metroplex - 3rd Floor, Birmingham, Alabama, prepared by LAW, dated April
18, 1999
6. Proposal for Prevalent Air Sampling and Asbestos Consulting, Two Metroplex
Drive, Birmingham, Alabama, prepared by LAW, dated March 30, 1999
7. Certificate of Worker's Acknowledgement for Brookwood Metroplex in
Birmingham, Alabama, prepared by Asbestos Abatement Services, dated March
29, 1999
8. Report of Asbestos-Containing Materials Survey at Two Metroplex Drive,
Birmingham, Alabama, prepared by LAW, dated March, 1999
9. Contractor/Tenant Asbestos Notice to Xxxxx Construction Company, Inc.,
prepared by Equity Office, dated July 24, 1996
10. Results of Indoor Air Quality Survey for Brookwood Metroplex One, Homewood,
Alabama, prepared by LAW, dated September 26, 1994
11. Report on Phase I Environmental Survey for Brookwood Metroplex, Homewood,
Alabama, prepared by PEI Associates, Inc., dated November 3, 1990
12. Phase I Environmental Survey for Brookwood Metroplex, Homewood, Alabama,
prepared by International Technology, Inc., dated October 19, 1990 (Revised
August 7, 1991)
13. Study prepared by Xxxxxxxxx & Gorrie General Contractor, Inc. entitled
"Facility Study for Vulcan Materials" dated September 10th, 1996 with
accompanying cover letter dated September 10, 1996
3
EXHIBIT P
ENVIRONMENTAL REPORTS
---------------------
1. Report of Asbestos Air Monitoring, Third Floor, Brookwood Metroplex,
Birmingham, Alabama, prepared by LAW Engineering and Environmental
Services, Inc. ("LAW"), dated June 14, 1999
2. Report of Asbestos Air Monitoring, Main Lobby, Brookwood Metroplex,
Birmingham, Alabama, prepared by LAW, dated May 28, 1999
3. Report of Asbestos-Containing Materials Sampling at Two Metroplex Drive,
Birmingham, Alabama, prepared by LAW, dated May, 1999
4. Report of Prevalent Air Sampling and Asbestos Consulting, Two Metroplex
Drive, Birmingham, Alabama, prepared by LAW, dated April 23, 1999
5. Point-Count Results for the 3rd Floor Drywall Joint Compound Samples for
Metroplex - 3rd Floor, Birmingham, Alabama, prepared by LAW, dated April
18, 1999
6. Proposal for Prevalent Air Sampling and Asbestos Consulting, Two Metroplex
Drive, Birmingham, Alabama, prepared by LAW, dated March 30, 1999
7. Certificate of Worker's Acknowledgement for Brookwood Metroplex in
Birmingham, Alabama, prepared by Asbestos Abatement Services, dated March
29, 1999
8. Report of Asbestos-Containing Materials Survey at Two Metroplex Drive,
Birmingham, Alabama, prepared by LAW, dated March, 1999
9. Contractor/Tenant Asbestos Notice to Xxxxx Construction Company, Inc.,
prepared by Equity Office, dated July 24, 1996
10. Results of Indoor Air Quality Survey for Brookwood Metroplex One, Homewood,
Alabama, prepared by LAW, dated September 26, 1994
11. Report on Phase I Environmental Survey for Brookwood Metroplex, Homewood,
Alabama, prepared by PEI Associates, Inc., dated November 3, 1990
12. Phase I Environmental Survey for Brookwood Metroplex, Homewood, Alabama,
prepared by International Technology, Inc., dated October 19, 1990 (Revised
August 7, 1991)
13. Study prepared by Xxxxxxxxx & Gorrie General Contractor, Inc. entitled
"Facility Study for Vulcan Materials" dated September 10/th/, 1996 with
accompanying cover letter dated September 10, 1996
EXHIBIT Q
PURCHASER CAPITAL COSTS
-----------------------
Project Contractor Status Total Estimated Paid To Date Incurred - Not Paid
------- ---------- ------ --------------- ------------ -------------------
Project Cost
------------
Sprinklers Xxxxxxx / Ongoing 155,332 119,600 15,107
Pettitjean and
Xxxxxxx / Law
Engineering
Fire Pump Xxxxxxx / Hallmark/ Ongoing 81,187.00 7,030 13,675
Pettitjean and
Xxxxxxx
Ceiling Replacement Hallmark Ongoing 86,869.00 61,760 0
Fire Alarm / Elect Upgrade Hallmark Ongoing 24,580 18,002 3,433
Demolition / Misc Upgrades Xxxxxxx Ongoing 178,200.00 24,600 9,144
Corridor Extension Hallmark / Xxxxx / Ongoing 107,700 61,505 2,000
Pettitjean and
Xxxxxxx
ACM Survey Law Engineering Completed 7,540 7,540 0
EXHIBIT R
QUIT CLAIM ASSIGNMENT OF PERMITS AND GENERAL INTANGIBLES
--------------------------------------------------------
THIS QUIT CLAIM ASSIGNMENT OF PERMITS AND GENERAL INTANGIBLES (this
"Assignment") is entered into as of the ____ day of __________, 1999 by and
between FIRST CAPITAL INCOME PROPERTIES, LTD. - SERIES VIII, a Florida limited
partnership ("Assignor"), having offices at Xxx Xxxxx Xxxxxxxxx Xxxxx, Xxxxx
0000, Xxxxxxx, Xxxxxxxx 00000, and BOARDWALK MANAGEMENT CORPORATION, an Alabama
corporation ("Assignee"), having offices at 000 Xxxxxx Xxxx Xxxxx, Xxxxx 000,
Xxxxxxxxxx, Xxxxxxx 00000.
1. Property. The "Property" shall mean the real property located in the
--------
City of Birmingham, County of Jefferson, State of Alabama, legally described in
EXHIBIT A attached to this Assignment, together with all of Assignor's right,
---------
title and interest in and to the buildings, structures and other improvements
located thereon, and commonly known as "Brookwood Metroplex".
2. Contract. "Contract" shall mean that certain Purchase And Sale
--------
Agreement dated _______________, 1999 by and between Assignor, as Seller, and
Assignee, as Purchaser, for the purchase and sale of the Property.
3. Permits. "Permits" shall mean all certificates of occupancy, special
-------
use permits, elevator inspection certificates, operating permits, and all other
permits issued by any governmental authority relating to the use, occupancy,
ownership or operation of the Property, if any.
4. General Intangibles. "General Intangibles" shall mean: (i) all
-------------------
warranties and guaranties relating to the Property, (ii) all plans,
specifications and floor plans for the Office Buildings (as defined in the
Contract); and (iii) all existing intangible personal property pertaining to the
Property, including the name "Brookwood Metroplex" but excluding any intangible
property pertaining in any way to the rights associated with the name "Equity
Office" or the name of any entity containing the words "Equity Office".
5. Quit Claim Assignment. For good and valuable consideration received
---------------------
by Assignor, the receipt and sufficiency of which are hereby acknowledged,
Assignor hereby quit claims to Assignee the entire right, title and interest of
Assignor, if any, in and to the Permits and General Intangibles, as applicable
to the period from and after the date hereof.
6. Enforcement. If Assignor or Assignee must resort to a court of law or
-----------
equity in order to enforce the provisions of this Assignment as against the
other, the non-prevailing party shall pay the reasonable attorney's fees and
expenses of the prevailing party.
7. Third Parties. Except as set forth in Section 10 of this Assignment,
-------------
no third party shall have the benefit of any of the provisions of this
Assignment, nor is this Assignment made with the intent that any person or
entity other than Assignor or Assignee shall rely hereon.
8. No Representations or Warranties. This Assignment shall not be
--------------------------------
construed as a representation or warranty by Assignor as to the existence,
ownership or transferability of the Permits or the General Intangibles, and
Assignor shall have no liability to Assignee in the event that any or all of the
Permits or the General Intangibles (i) are not transferable to Assignee, or (ii)
are canceled or terminated by reason of this assignment or any acts of Assignee.
Notwithstanding the foregoing, Assignor
represents to the Actual Knowledge of Seller (as defined in the Contract) that
Assignor has not previously transferred, assigned or encumbered any rights it
may have in any of the Permits or General Intangibles. Such representation shall
survive until the one hundred eightieth day after the date of this Assignment.
9. Limited Liability. By accepting this Assignment, Assignee expressly
-----------------
understands and agrees that any recovery against Assignor that Assignee may be
entitled to as a result of any claim, demand or cause of action that Assignee
may have against Assignor with respect to this Assignment shall only be
recoverable against Assignor as provided in Section 11.Q. of the Contract.
10. Successors and Assigns. This Assignment shall be binding upon and
----------------------
inure to the benefit of the parties hereto and their respective successors and
assigns.
11. Counterparts. This Assignment may be executed in any number of
------------
identical counterparts, any or all of which may contain signatures of fewer than
all of the parties but all of which taken together shall constitute a single
instrument.
IN WITNESS WHEREOF, Assignor and Assignee have executed this Assignment the
day and year first above written.
ASSIGNOR:
FIRST CAPITAL INCOME PROPERTIES, LTD. - SERIES VIII,
a Florida limited partnership
By: First Capital Financial Corporation, a Florida
corporation, its general partner
By:_________________________________________
Name:_______________________________________
Title:______________________________________
ASSIGNEE:
BOARDWALK MANAGEMENT CORPORATION, an Alabama
corporation
By:______________________________________________
Name:____________________________________________
Title:___________________________________________
EXHIBIT
-------
A - Legal Description of Property
2
EXHIBIT S
TENANT INDUCEMENT COSTS AND LEASING COMMISSIONS
-----------------------------------------------
---------------------------------------------------------------------------------------------------------------------------------
Tenant Description Tenant Inducement Costs Leasing Commission
---------------------------------------------------------------------------------------------------------------------------------
American Behavioral Benefits Right of first offer on 854 square "Work Allowance" of $0.17 per
Managers feet of adjacent space (Suite 301) square foot per month of remaining
pursuant to Lease. lease term, if exercised.
---------------------------------------------------------------------------------------------------------------------------------
Capital Strategies Group, Inc. Right of first offer on 601 square "Work Allowance" of $0.15 per
feet and 2,910 square feet of square foot per month of remaining
adjacent spaces (Suites 109 and lease term, if exercised.
110) pursuant to Lease.
---------------------------------------------------------------------------------------------------------------------------------
Vulcan Materials Company Right of first offer on 6,202 $12,404 - T.I. allowance
square feet of adjacent space
(Suite 501/506) pursuant to Lease.
---------------------------------------------------------------------------------------------------------------------------------
J&H Xxxxx XxXxxxxx Right of first offer on 3,500 "Work Allowance" of $0.1667 per
square feet on third floor square foot per month of remaining
pursuant to Lease. lease term and space planning
allowance per $0.0208 per square
foot of remaining lease term, if
exercised.
---------------------------------------------------------------------------------------------------------------------------------
J&H Xxxxx McLennan Lease $123,880 - T.I. allowance $24,776 - $69,874.51
demo. allowance $12,388 - moving
allowance
---------------------------------------------------------------------------------------------------------------------------------
Xxxxxx, Xxxxxx & Xxxxxx Right of first offer of 5,000 "Work Allowance" of $0.1515 per
square feet of adjacent space. square foot per month of remaining
Lease Term in the event the right
is exercised
---------------------------------------------------------------------------------------------------------------------------------
Sumi's Deli Lease Painting $2,000
(estimated)
Floor maintenance $200/quarter
(estimated)
---------------------------------------------------------------------------------------------------------------------------------
EXHIBIT T
DELINQUENT TENANTS
------------------
Tenant Name Amount Due
----------- ----------
Sumi's Deli $ 52.20
Personnel Service $536.00
EXHIBIT U
Intentionally Omitted.
EXHIBIT V
NOTICE OF LANDLORD DEFAULTS FROM TENANTS
----------------------------------------
None.
EXHIBIT W
NOTICE OF TENANT DEFAULTS FROM LANDLORD
---------------------------------------
None. Please note that the tenants on EXHIBIT T are both in default of their
---------
obligations under their respective leases.
EXHIBIT X
NOTICES OF VIOLATIONS OF LAW
----------------------------
An inspection by the local fire xxxxxxxx during the week of July 19, 1999
identified a few discrepancies related to the fire alarm testing (such
discrepancies were relayed verbally). Seller is attempting to remedy such
discrepancies and a follow-up inspection is scheduled for the week of August 2,
1999.
EXHIBIT Y
ASSIGNMENT AND ASSUMPTION OF METROGATE AGREEMENT
------------------------------------------------
THIS ASSIGNMENT AND ASSUMPTION OF METROGATE AGREEMENT (this "Assignment")
is entered into as of the ____ day of __________, 1999 by and between FIRST
CAPITAL INCOME PROPERTIES, LTD. - SERIES VIII, a Florida limited partnership
("Assignor"), having offices at Xxx Xxxxx Xxxxxxxxx Xxxxx, Xxxxx 0000, Xxxxxxx,
Xxxxxxxx 00000, and BOARDWALK MANAGEMENT CORPORATION, an Alabama corporation
("Assignee"), having offices at 000 Xxxxxx Xxxx Xxxxx, Xxxxx 000, Xxxxxxxxxx,
Xxxxxxx 00000.
1. Property. The "Property" shall mean the real property located in the
--------
City of Birmingham, County of Jefferson, State of Alabama, legally described in
EXHIBIT A attached to this Assignment, together with all of Assignor's right,
---------
title and interest in and to the buildings, structures and other improvements
located thereon, and commonly known as "Brookwood Metroplex".
2. Contract. "Contract" shall mean that certain Purchase And Sale
--------
Agreement dated _______________, 1999 by and between Assignor, as Seller, and
Assignee, as Purchaser, for the purchase and sale of the Property.
3. Metrogate Agreement. "Metrogate Agreement" shall mean that certain
-------------------
Metrogate Agreement dated August 31, 1983, a copy of which is attached to this
Assignment as EXHIBIT B.
---------
4. Assignment. For good and valuable consideration received by Assignor,
----------
the receipt and sufficiency of which are hereby acknowledged, Assignor hereby
assigns to Assignee the entire right, title and interest of Assignor in and to
the Metrogate Agreement as applicable to the period from and after the date
hereof.
5. Assumption. Assignee hereby assumes all of the covenants, agreements
----------
and obligations of Assignor under or in connection with the Metrogate Agreement
as applicable to the period from and after the date hereof.
6. Enforcement. If Assignor or Assignee must resort to a court of law or
-----------
equity in order to enforce the provisions of this Assignment as against the
other, the non-prevailing party shall pay the reasonable attorney's fees and
expenses of the prevailing party.
7. Third Parties. Except as set forth in Section 10 of this Assignment,
-------------
no third party shall have the benefit of any of the provisions of this
Assignment, nor is this Assignment made with the intent that any person or
entity other than Assignor or Assignee shall rely hereon.
8. No Representations or Warranties. This Assignment shall not be
--------------------------------
construed as a representation or warranty by Assignor as to the transferability
of the Metrogate Agreement, and Assignor shall have no liability to Assignee in
the event that the Metrogate Agreement (i) is not transferable to Assignee or
(ii) is canceled or terminated by reason of this assignment or any acts of
Assignee.
9. Limited Liability. By accepting this Assignment, Assignee expressly
-----------------
understands and agrees that any recovery against Assignor that Assignee may be
entitled to as a result of any claim,
demand or cause of action that Assignee may have against Assignor with respect
to this Assignment shall only be recoverable against Assignor as provided in
Section 11.Q. of the Contract.
10. Successors and Assigns. This Assignment shall be binding upon and
----------------------
inure to the benefit of the parties hereto and their respective successors and
assigns.
11. Counterparts. This Assignment may be executed in any number of
------------
identical counterparts, any or all of which may contain signatures of fewer than
all of the parties but all of which taken together shall constitute a single
instrument.
IN WITNESS WHEREOF, Assignor and Assignee have executed this Assignment the
day and year first above written.
ASSIGNOR:
FIRST CAPITAL INCOME PROPERTIES, LTD. - SERIES VIII,
a Florida limited partnership
By: First Capital Financial Corporation, a Florida
corporation, its general partner
By:________________________________________
Name:______________________________________
Title:_____________________________________
ASSIGNEE:
BOARDWALK MANAGEMENT CORPORATION, an Alabama
corporation
By:_____________________________________________
Name:___________________________________________
Title:__________________________________________
EXHIBITS
--------
A - Legal Description of Property
B - Metrogate Agreement
2
