Exhibit 2.2
CONTRIBUTION AGREEMENT
(and Escrow Instructions)
THIS CONTRIBUTION AGREEMENT is made and entered into as of April 20,
1997, by and between MEDICAL OFFICE BUILDINGS, LTD., a Washington limited
partnership ("Seller"), and HEALTH AND RETIREMENT PROPERTIES TRUST, a Maryland
real estate investment trust ("Buyer").
R E C I T A L S
X. XXXXXXX REAL ESTATE LIMITED PARTNERSHIP IX, an Illinois limited
partnership ("Carlyle"), and Seller are the sole partners in XXXXXX-XXXXXXX
PARTNERS, a California general partnership ("WCP"), which is governed by those
certain Articles of Partnership of Xxxxxx-Xxxxxxx Partnership dated as of
December 27, 1979 (the "WCP Partnership Agreement") between Carlyle and Seller.
B. WCP is the tenant under that certain Lease dated as of February 1,
1977 between Xxxxxx X. Xxxxxx Development Co., a Washington corporation
("Xxxxxx"), as landlord, and Seller, as tenant, as amended by (1) that certain
First Amendment of Lease dated as of July 16, 1979 by and between The Prudential
Insurance Company of America, a New Jersey corporation ("Prudential"), as
assignee of Xxxxxx, as landlord, and Seller, as tenant; (2) that certain Second
Amendment of Lease dated as of December 19, 1985 between Prudential, as
landlord, and WCP, as assignee of Seller, as tenant; and (3) that certain Third
Amendment to Lease dated as of October 1, 1996 between Prudential, as landlord,
and WCP, as tenant (such ground lease and all amendments thereto being
hereinafter individually and collectively called "Ground Lease").
C. Prudential is the present owner of the fee interest in the real
property which is encumbered by the Ground Lease, which real property is more
particularly described on Exhibit "A" attached hereto and made a part hereof
(the "Land").
D. WCP is the owner of an option to purchase the fee interest of
Prudential in the Land pursuant to that certain Option Agreement dated as of
October 1, 1996 (the "Land Option Agreement") between Prudential and WCP. The
Option Agreement requires the execution of a Purchase and Sale Agreement in the
form attached thereto as Exhibit "B" (the "Land Purchase Agreement") in order to
consummate the purchase of the Land.
E. On or about Xxxxx 00, 0000, XXX and Arden Realty Limited
Partnership, a Maryland limited partnership, entered into a Purchase Agreement
and Joint Escrow Instructions (the "WCP/Arden Agreement") pursuant to which WCP
agreed to sell the Property for cash. On or about the date hereof, Seller
exercised its right of first opportunity under Section 6.2D of the WCP
Partnership
Agreement and, in accordance therewith, Seller will acquire Carlyle's
partnership interest in WCP (the "Partnership Interest") which acquisition
Seller intends to consummate substantially on the terms of the proposed Purchase
Agreement (the "MOBL/Carlyle Agreement"), a copy of which has previously been
delivered to Buyer. As a consequence of the exercise of such right of first
opportunity, the WCP/Arden Agreement terminates by its terms.
F. WCP owns certain Property (as defined below).
G. Seller and Buyer desire, simultaneously upon acquisition of the
Partnership Interest by Seller or its nominee, to form a Delaware limited
partnership ("New Partnership"), in which Buyer or its nominee shall hold a 1%
general partner interest and a 98% limited partner interest and Seller shall
hold a 1% limited partner interest, to which partnership Seller shall contribute
the Property and certain obligations and Buyer shall contribute cash, all
subject to and upon the terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the mutual undertakings of the
parties hereto, it is hereby agreed as follows:
1. Acquisition of the Partnership Interest. Seller shall acquire or cause its
nominee to acquire the Partnership Interest subject to the Prudential Loan from
Carlyle in accordance with the MOBL/Carlyle Agreement, for the purpose of
contributing the Property to New Partnership as contemplated by this Agreement.
Seller's purchase of the Partnership Interest shall shall be funded by Buyer as
provided in Section 2 below.
1.1 Transfer of Property.
Seller, immediately following acquisition of the Partnership Interest,
shall cause WCP to contribute to New Partnership, and New Partnership shall
acquire from Seller, subject to all the terms and conditions hereof, all of the
following described property (collectively, the "Property"):
(a) Leasehold Estate. All of WCP's right, title and interest in the
Ground Lease;
(b) Land. All of WCP's right, title and interest in the Land Option
Agreement;
(c) Improvements. All buildings, structures, improvements and fixtures
on the Land belonging to WCP (collectively, the "Improvements");
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(d) Easements. All easements, interests in roadways, strips and rights
appurtenant to the Land;
(e) Leases. All leases and agreements demising space in or providing
for the use or occupancy of the Improvements (collectively, the "Leases");
(f) Licenses. To the extent assignable, all of WCP's right, title and
interest in and to all licenses, permits, rights, contracts, water rights,
mineral rights, privileges and appurtenances pertaining to any of the foregoing;
(g) Personal Property. All of WCP's right, title and interest in and to
all furniture, equipment, supplies, tools and machinery set forth on Exhibit "B"
attached hereto and made a part hereof, together with all of WCP's right, title
and interest in and to any plans, permits or drawings located on or pertaining
to the Land or Improvements and belonging to WCP (collectively, the "Personal
Property"); and
(h) Miscellaneous Rights. All of WCP's right, title and interest in and
to any building tradenames used in connection with the Land or Improvements (but
only to the extent that the same are not trademarks or trade names of WCP, any
of its partners or any of its or their affiliated or related entities),
warranties (including those related to construction or fabrication of the
Improvements), telephone exchange numbers, advertising materials, plans and
specifications, governmental approvals and development rights related to the
Land or Improvements.
1.2 Treatment as Contribution.
Buyer and Seller intend that the contribution by Seller to New
Partnership shall shall be governed by Section 721(a) of the Internal Revenue
Code of 1986, as amended (the "Code").
2. Consideration.
As consideration for the foregoing, Buyer shall (a) contribute to New
Partnership, on the Closing Date (as hereinafter defined), an amount, in cash,
equal to $47,000,000 and (b) cause Buyer or one of its affiliates to make a
first mortgage loan (the "HRPT Loan") to New Partnership in an amount equal to
$59,000,000. The HRPT Loan shall be for a term of not less than 10 years,
payable interest only at 10% per annum in monthly installments. Concurrently,
MOBL and some of its constituant partners shall execute a guaranty of the
payment by New Partnership of the HRPT Loan, which guaranty shall be in the form
of Exhibit "C" attached hereto (the "Guaranty"). The HRPT Loan shall prohibit
prepayment of any portion of the principal thereof to an amount below
$22,000,000, except to the extent New
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Partnership obtains replacement financing of not less than $22,000,000,
repayment of which can be guaranteed by the Guarantees or in connection with a
sale of the Property.
The sums contributed to New Partnership by Buyer as described above
(the "New Partnership Funds") shall be used to pay (i) the outstanding balance
of principal, interest and any other sums accrued or payable on the Closing Date
under the Prudential Loan (the "Prudential Payoff Amount"); (ii) the Purchase
Price and the brokerage fee payable by Seller under the MOBL/Carlyle Agreement;
(iii) the Purchase Price, as such term is used in the Land Option Agreement (the
"Land Option Purchase Price"), (iv) the closing costs and (v) all prorations
charged to Buyer or New Partnership hereunder; provided, however, that it is
expressly understood and agreed that in no event shall the aggregate amount
advanced by Buyer pursuant to clauses (i), (ii), and (iii) and closing costs
payable by New Partnership pursuant to Section 5.6 exceed $106,000,000 and
Seller shall contribute any amounts in excess thereof required to consummate the
transactions contemplated hereby.
3. Deposit.
Upon the "Opening of Escrow" (as hereinafter defined), Buyer shall
deliver by wire transfer of immediately available federal funds an amount equal
to $1,500,000 (which amount, together with all interest earned thereon, is
herein called the "Escrow Deposit") to Chicago Title Company/Escrow Division, at
its offices at 000 Xxxxx Xxxxxx Xxxxxx, Xxxxx Xxxxx, Xxx Xxxxxxx, Xxxxxxxxxx,
Attention: Xx. Xxxx Xxxxxxxx which company, in its capacity as escrow holder
hereunder, is called "Escrow Holder." Such amount shall be held by Escrow Holder
as a deposit in accordance with the terms and provisions of this Agreement. The
Escrow Deposit shall be invested by Escrow Holder in the following investments
("Approved Investments"): (i) United States Treasury obligations, (ii) United
States Treasury-backed repurchase agreements issued by a major national money
center banking institution reasonably acceptable to the Company, or (iii) such
other manner as may be reasonably agreed to by Seller and Buyer. The Escrow
Deposit shall be disposed of by Escrow Holder only as provided in this
Agreement.
4. Conditions Precedent.
The obligations and liabilities of the parties hereunder are subject to
satisfaction of each of the following conditions precedent (any of which may be
waived in writing by the party in whose favor such condition exists) on or
before the applicable date specified for satisfaction of the applicable
condition. If any of such conditions are not satisfied (or waived) pursuant to
the terms of this Agreement, then this Agreement shall terminate
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and, in connection with any such termination made in accordance with this
paragraph, Seller and Buyer shall be released from further obligation or
liability hereunder (except for those obligations and liabilities which,
pursuant to the terms of this Agreement, survive such termination), and Buyer
shall be entitled to a return of the Escrow Deposit. Close of Escrow (as defined
below) shall constitute approval by each party of all matters to which such
party has a right of approval and a waiver of all conditions.
4.1 Title Matters.
4.1.1 Title Report. A Pro forma title policy no. 6144435 X59
dated February 10, 1997 ("Pro Forma") covering the Property issued by
Chicago Title Insurance Company (such company, in its capacity as title
insurer hereunder, is herein called the "Title Company") has been
delivered to Buyer and is attached hereto as Exhibit "D". In addition,
Seller has delivered an updated ALTA survey dated as of November 26,
1996 ("Updated Survey") of the Property from Xxxxxx and Associates.
Buyer has approved the Title Report and the Updated Survey with the
changes noted in Exhibit "D" attached hereto. Approval by Buyer of any
additional exceptions to title or survey matters which may be disclosed
after the date of this Agreement shall be a further condition precedent
to Buyer's obligation to purchase the Rights. If any such additional
exceptions to title or survey matters are disclosed, Seller shall give
Buyer prompt written notice thereof. Unless Buyer gives written notice
that it disapproves such additional exceptions to title or survey
matters, stating the additional exceptions or survey matters so
disapproved, on or before the earlier to occur of the Closing Date
(provided Seller has given Buyer 2 business days prior written notice
thereof) or 10 days after receipt of Seller's written notice of such
additional exceptions or survey matters (together with copies of the
underlying documents evidencing the same), Buyer shall be deemed to
have approved said additional exceptions or survey matters. If, for any
reason, on or before the Closing Date (as defined below) Seller does
not cause any exceptions to title or survey matters which Buyer
disapproves (to the extent Buyer is permitted hereunder to so
disapprove) to be removed at no cost or expense to Buyer (Seller having
the right but not the obligation to do so), then, at Buyer's option
(exercised by giving written notice thereof on or before the Closing
Date), this Agreement shall terminate. Notwithstanding anything to the
contrary contained herein, Seller shall be obligated to remove (or
cause the Title Company to insure over) (i) any mechanics' liens for
work performed by or on behalf of WCP at the Property prior to the
Closing and (ii) any tax or judgment liens against WCP or Seller and
any other encumbrances which may be satisfied
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by the payment of a liquidated sum other than the Prudential
Loan.
4.1.2 Title Policy. It shall be a condition to Buyer's
obligations to close hereunder that on the Closing Date the Title
Company shall agree to issue to New Partnership an ALTA extended
coverage (Form 1970) owner's title insurance policy ("Owner's Policy")
in the form (and with the endorsements) of the Pro Forma with
amendments provided in Exhibit "D" and with liability in an amount
reasonably determined by Buyer, and that the updated survey be
certified to New Partnership.
4.2 Due Diligence Matters
4.2.1 Completed Due Diligence. Buyer acknowledges that it has
reviewed and inspected all matters respecting the Property, including
such environmental and engineering tests and reports (including a Phase
I environmental audit and a structural and curtain wall engineering
report) and other inspections of the Property and review of applicable
federal, state and local laws, ordinances, rules, regulations, permits,
licenses, appraisals, financing documents, approvals and orders and any
other matters as Buyer deemed necessary or appropriate in its sole
discretion, in order to determine whether the Property is suitable for
Buyer's intended use and purpose. By executing this Agreement, Buyer
hereby acknowledges that Buyer has approved its due diligence
examinations, reviews and inspections and has elected to proceed with
the acquisition of the Property in accordance with the terms of this
Agreement. Without limitation on the foregoing, Buyer acknowledges that
the consideration given by Buyer hereunder has been agreed upon after
the completion, and fully reflective of, Buyer's due diligence reviews,
examinations and inspections.
4.2.2 Conduct of Due Diligence Reviews. All due diligence
examinations, reviews and inspections conducted by Buyer have been and
shall be at Buyer's sole cost and expense (including, without
limitation, those related to appraisers, inspectors, auditors and
environmental and engineering consultants). Buyer has at all times
conducted its due diligence and environmental reviews, inspections and
examinations in a manner so as to not cause damage, loss, cost or
expense to Seller, WCP or the Property, and Buyer will indemnify,
defend and hold Seller, WCP and the Property harmless from and against
any such damage, loss, cost or expense. The foregoing indemnification
obligation shall survive the closing of the transactions contemplated
herein or the earlier termination of this Agreement until the
expiration of the Survival Period (as hereinafter defined),
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at which time such obligations (and any cause of action not then in
litigation) shall terminate. Buyer shall promptly deliver to Seller
true, accurate and complete copies of any written reports relating to
the Property prepared for or on behalf of Buyer by any third party and,
in the event of termination hereunder, shall return all documents and
other materials furnished by Seller hereunder. Buyer shall keep all
information or data received or discovered in connection with any of
the inspections, reviews or examinations strictly confidential.
4.3 Tenant Estoppel Certificates. Receipt of estoppel certificates
("Tenant Estoppel Certificates") from (i) each tenant occupying 3,000 or more
rentable square feet identified on Exhibit "F" attached hereto and made a part
hereof ("Required Tenants"), and (ii) a sufficient number of other tenants at
the Property such that estoppel certificates shall have been received pursuant
to clauses (i) and (ii) hereof with respect to not less than 80% of the total
net rentable square footage of the Property covered by Leases in effect as of
the Closing Date, shall be a condition precedent to Buyer's obligations
hereunder. Each Tenant Estoppel Certificate shall be substantially in the form
previously delivered to Buyer (or if Seller, after using commercially reasonable
efforts to obtain certificates in such form, is unable to obtain the same, then
in the form, if any, prescribed in the applicable Lease or other operative
document). Seller's sole obligation hereunder shall be to utilize commercially
reasonable efforts to obtain such Tenant Estoppel Certificates from each tenant
(not including any obligation to institute legal proceedings or to expend any
monies therefor). If on or before the Closing Date such condition is not
satisfied (or waived), then this Agreement shall terminate. Without limitation
on the foregoing, if any Tenant Estoppel Certificate discloses material adverse
matters which are not cured or satisfied by Seller on or before the Closing
Date, then Buyer shall have the right to terminate this Agreement on or before
the Closing Date. All such estoppel certificates shall be addressed to Buyer or
shall permit reliance thereon by unidentified purchasers and lenders with
respect to the Property.
4.4 Existing Loans. On the Closing Date, the Prudential Loan shall be
concurrently prepaid and satisfied in full.
4.5 Land Purchase. On the Closing Date, concurrently with the Closing
hereunder, New Partnership shall have acquired fee title to the Land pursuant to
the Land Option Agreement.
4.6 Guarantees. Buyer shall have received Guarantees substantially in
the form of Exhibit "C" attached hereto (the "Guarantees") executed by Seller
and those of Seller's constituent partners who elect, in their sole and absolute
discretion, to execute the Guarantees by which the signatories
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thereto shall agree to guaranty the HRP Loan, on terms and conditions set forth
more fully therein.
4.7 New Partnership. Buyer and Seller shall have formed New Partnership
substantially on the terms set forth in Exhibit "E" hereto, such partnership to
be otherwise on terms and conditions reasonably satisfactory to Seller and
Buyer. New Partnership shall execute supplementary escrow instructions to
authorize the actions to be taken by New Partnership hereunder.
4.8 Partnership Elections. Seller shall cause WCP to make
the election contemplated by Section 754 of the Code.
5. Escrow.
On the first business day after execution of this Agreement, the
parties shall deposit an executed copy of this Agreement (or a fully executed
copy in counterparts) with Escrow Holder and Buyer shall, on the terms and
conditions of Xxxxxxx 0, xxxxx the Escrow Deposit with Escrow Holder. Escrow
Holder shall promptly execute this Agreement upon receipt of this Agreement (and
the Escrow Deposit) and thereupon escrow hereunder (the "Escrow") shall be
established (the foregoing being herein called the "Opening of Escrow"). This
Agreement shall serve as the instructions to Escrow Holder to consummate the
purchase and sale contemplated hereunder. Seller and Buyer agree to execute such
additional and supplementary escrow instructions as may be reasonably
appropriate to enable Escrow Holder to comply with the terms of this Agreement.
If there is any conflict between the provisions of this Agreement and any such
additional or supplementary escrow instructions, then, unless such additional or
supplementary escrow instructions are executed by both Seller and Buyer, the
terms of this Agreement shall control. The transactions contemplated herein
shall be consummated through the Escrow. "Close of Escrow" shall occur on the
Closing Date. The "Closing Date" shall be May 30, 1997 or such earlier date as
shall be agreed upon by Seller and Buyer. The parties hereto shall make
reasonable best efforts to cause a pre-closing into Escrow to occur on the
business day prior to the Closing Date. The Closing Date shall occur
concurrently with the acquisiton by Seller, or its nominee, from Carlyle of the
Partnership Interest pursuant to the MOBL/Carlyle Agreement, the contribution of
the Property to New Partnership by WCP at the request of Seller, the acquisition
by New Partnership from Prudential of the Land pursuant to the Land Option
Agreement, the payment in full by New Partnership of the Prudential Loan and the
making by Buyer or its affiliate of the HRP Loan to New Partnership.
5.1 Deliveries to Escrow by Seller. Prior to the Closing Date, Seller
shall deliver or cause to be delivered to Escrow Holder the following:
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5.1.1 Two original assignment and assumption agreements in
respect of the Ground Lease ("Leasehold Assignment"), duly executed and
acknowledged by WCP, in the form of Exhibit "I-1" attached hereto and
made a part hereof;
5.1.2 Two original assignment and assumption agreements in
respect of the Land Option Agreement ("Land Option Assignment"), duly
executed by WCP, in a form approved by Seller and Buyer and fully
executed "Hazardous Materials Indemnity Agreements", as defined in the
Land Option Agreement, executed by Seller and Carlyle for delivery to
Prudential;
5.1.3 Two xxxx of sale, assignment and assumption agreements
("General Assignment"), duly executed by WCP, in the form of Exhibit
"I-2" attached hereto and made a part hereof;
5.1.4 A duly executed and acknowledged certificate regarding
the "non-foreign" status of WCP and MOBL satisfying the requirements of
Section 1445 of the Internal Revenue Code of 1986, as amended, and the
regulations thereunder;
5.1.5 A duly executed "Withholding Exemption Certificate, Form
590" or a certificate issued by the California Franchise Tax Board,
pursuant to the Revenue and Taxation Code Sections 18805 and 26131,
stating either the amount of withholding required from WCP's or MOBL's
proceeds or that WCP and MOBL are exempt from such withholding
requirement;
5.1.6 Evidence reasonably satisfactory to Escrow Holder
respecting the due organization of Seller and WCP and the due
authorization and execution of this Agreement and the documents
required to be delivered hereunder;
5.1.7 Original Guarantees duly executed by Seller and those of
Seller's constituent partners who elect, in their sole and absolute
discretion, to execute the Guaranty Agreement;
5.1.8 Security Deposits attributable to the leases (the
"Security Deposits") held by WCP;
5.1.9 Seller's share of the closing costs described in
paragraph 5.6
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hereof and prorations made hereunder;
5.1.10 Such additional documents as may be reasonably required
by Escrow Holder or Buyer in order to consummate the transactions
hereunder (provided the same do not materially increase the costs to,
or liability or obligations of, Seller in a manner not otherwise
provided for herein).
5.2 Deliveries to Escrow by Buyer. Prior to the Closing Date, Buyer
shall deliver or cause to be delivered to Escrow Holder the following:
5.2.1 Buyer's contribution to New Partnership and the proceeds
of the HRPT Loan described in Section 2 hereof;
5.2.2 Two original Leasehold Assignments, duly executed and
acknowledged by New Partnership;
5.2.3 Two original Land Option Assignments, duly
executed by New Partnership;
5.2.4 One original of the Note evidencing the HRPT Loan, duly
executed by New Partnership and a Deed of Trust securing the HRPT Note
(the "HRPT Deed of Trust"), duly executed and acknowledged by New
Partnership;
5.2.5 Two original General Assignment and Assumption
Agreements, duly executed by New Partnership;
5.2.6 Evidence reasonably satisfactory to Escrow Holder
respecting the due organization of Buyer and the due authorization and
execution of this Agreement and the documents required to be delivered
hereunder;
5.2.7 Buyer's share of the closing costs described in
paragraph 5.6 hereof and prorations made hereunder;
5.2.8 Such additional documents as may be reasonably required
by Escrow Holder in or to consummate the transactions hereunder
(provided the same do not materially increase the costs to, or
liability or obligations of, Buyer in a manner not otherwise provided
for herein).
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5.3 Deliveries to Buyer by Seller. On or before the Closing Date,
Seller shall deliver or cause to be delivered to Buyer the following:
5.3.1 A certificate updating the representations and
warranties of Seller contained in paragraph 7.1.2 hereof as of the
Closing Date (with any changes thereto being noted on such
certificate);
5.3.2 Evidence reasonably satisfactory to Buyer respecting the
due organization of Seller and WCP and the due authorization and
execution of this Agreement and the documents required to be delivered
hereunder and UCC searches confirming that there are no outstanding
security interests affecting the Property;
5.3.3 Such additional documents as may be reasonably required
by Buyer in order to consummate the transactions hereunder (provided
the same do not materially increase the costs to, or liability or
obligations of, Seller in a manner not otherwise provided for herein).
5.4 Deliveries to Seller by Buyer. On or before the Closing Date, Buyer
shall deliver or cause to be delivered to Seller the following:
5.4.1 A Certificate updating the representations and
warranties of Buyer contained in paragraph 7.2 hereof as of the Closing
Date (with any changes thereto being noted on such certificate);
5.4.2 Evidence reasonably satisfactory to Seller respecting
the due organization of Buyer and the due authorization and execution
of this Agreement and the documents required to be delivered hereunder;
and
5.4.3 Such additional documents as may be reasonably required
by Seller in order to consummate the transactions hereunder (provided
the same do not materially increase the costs to, or liability or
obligations of, Buyer in a manner not otherwise provided for herein).
5.5 The Closing. Escrow Holder shall close the Escrow on the Closing
Date by (i) causing the Leasehold Assignment to be recorded in the office of the
County Recorder of Los Angeles County, (ii) delivering the HRPT Note to Buyer,
(iii) delivering an amount equal to the sum of (y) the Prudential Payoff Amount
and (z) the Land Option Purchase Price to Prudential pursuant to Prudential
escrow instructions, (iv) delivering the Purchase Price under the MOBL/Carlyle
Agreement to Carlyle, (v) delivering the brokerage fee payable under the
MOBL/Carlyle Agreement to Xxxxxxx Xxxxx, LLC as directed by Seller and Buyer,
(vi)
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delivering the Security Deposits to New Partnership, (vi) delivering the Deposit
to Buyer and (vi) causing the HRPT Deed of Trust to be recorded in the office of
the County Recorder of Los Angeles County WHEN AND ONLY WHEN each of the
following conditions has been satisfied:
5.5.1 All documents described in paragraphs 5.1 and 5.2 hereof
have been delivered to Escrow Holder;
5.5.2 Title Company is prepared to deliver to New Partnership
the Owner's Policy in the form (and with the endorsements) of the Pro
Forma;
5.5.3 All conditions to the acquisition by New Partnership of
fee title to the Land pursuant to the Land Option Agreement have been
satisfied; and
5.5.4 All conditions to the pay-off and release of the
Prudential Loan have been satisfied.
5.6 Closing Costs. Seller shall pay one-half of the escrow fees, as
well as one-half of any escrow termination fees of Escrow Holder. Buyer shall
pay (i) one-half of the escrow fees, as well as one-half of any escrow
termination fees of Escrow Holder and (ii) all other costs and expenses related
to Buyer's due diligence examinations, reviews and inspections (including,
without limitation, those related to any engineering reports). Subject to the
limitations set forth in Section 2, New Partnership shall pay (x) the transfer
tax payable on recordation of the Leasehold Assignment and (y) the title
insurance premium attributable to the Owner's Policy. Each party shall pay its
own legal and accounting fees.
5.7 Prorations. The following prorations shall be made as of the
Closing Date (on the basis of the actual number of days elapsed over the
applicable period):
(i) All real estate and personal property taxes and
assessments on the Property for the current year. In no event shall Seller be
charged with or be responsible for any increase in the taxes on the Property
resulting from the sale of the Property or from any improvements made or leases
entered into on or after the Closing Date.
(ii) All fixed and additional rentals under the
Leases, and other tenant charges. Seller shall deliver or provide a credit in an
amount equal to all prepaid rentals for periods after the Closing Date and the
Security Deposits held by WCP (to the extent not applied or forfeited prior to
the Closing Date or delivered into Escrow) to New Partnership on the Closing
Date. If any security deposits are in the form of certificates of deposit,
letters of credit or the like, such instruments shall
12 DBLA-179348L.6
be assigned to New Partnership (and Seller and New Partnership shall reasonably
cooperate in causing the transfer of the same). Rents which are delinquent as of
the Closing Date shall not be prorated on the Closing Date. New Partnership
shall include such delinquencies in its normal billing and shall use
commercially reasonable efforts to collect the same after the Closing Date (but
New Partnership shall not be required to litigate or declare a default in any
Lease). To the extent New Partnership receives rents (other than "Additional
Amounts", as hereinafter defined) on or after the Closing Date, such payments
shall be applied first toward the reasonable third party costs of collection
paid by New Partnership with respect thereto, next toward then current rent owed
to New Partnership in connection with the applicable Lease for which such
payments are received, and finally toward any excess monies received shall be
applied toward the payment of any delinquent rents, with Seller's share thereof
being promptly delivered to Seller. New Partnership may not waive any delinquent
rents nor modify a Lease so as to reduce or otherwise affect amounts owed
thereunder for any period in which Seller is entitled to receive a share of
charges or amounts without first obtaining Seller's written consent. Common area
charges, taxes, operating expense and other similar expense reimbursement
obligations of the tenants under the Leases, as well as any percentage payable
thereunder (collectively, "Additional Amounts") shall be prorated effective as
of the Closing Date. The parties will finalize such Additional Amounts
prorations on the Closing Date or as soon as practicable thereafter (but in any
event not later than three (3) months after the Closing Date). Proration of
expense items contained in the calculation of the Additional Amounts shall be
made on the basis that Seller shall be entitled to reimbursement of the
applicable expenses incurred by Seller (annualized or otherwise appropriately
apportioned) prior to the Closing Date. To the extent that, based on such
determinations, Seller has received amounts in excess of the amount due Seller,
then Seller shall deliver such excess amount to Buyer on the Closing Date (or if
determined thereafter then within 15 days of such determination). To the extent
that Seller has received an amount less than the amount so due, Buyer shall
deliver such shortfall amount to Seller on the Closing Date (or if determined
thereafter, then within 15 days of such determination). The amount of percentage
rent to be allocated to Seller with respect to each Tenant Lease for the lease
year ("the "Current Lease Year") in which the Closing Date occurs shall be that
amount equal to (i) the amount by which (A) the tenant's gross receipts (to the
extent taken into account in determining percentage rent under such Tenant
Lease) for that portion of such Current Lease Year occurring prior to the
Closing Date exceed (B) the "Allocable Base Amount", multiplied by (ii) the
percentage specified in such Tenant Lease to be used in determining such
tenant's percentage rent for such Current Lease Year. The "Allocable Base
Amount" means that portion of the "Base Amount" for such Current Lease Year
determined by multiplying such Base
13 DBLA-179348L.6
Amount for the entire Current Lease Year by a fraction, the numerator of which
is the number of days in such Current Lease Year occurring prior to the Closing
Date and the denominator of which is the number of days of such Current Lease
Year. "Base Amount" is the amount specified in each Tenant Lease for such
Current Lease Year that must be exceeded by the sales of the tenant during such
Current Lease Year before such tenant shall be obligated thereunder to pay
percentage rent for such Current Lease Year. Buyer shall not be obligated to pay
or credit Seller any sum on account of the proration of percentage rent as
aforesaid unless and until the percentage rent to be prorated as aforesaid shall
be received by Buyer. Buyer shall reasonably cooperate with Seller in any
collection efforts hereunder (but shall not be required to litigate or declare a
default in any Lease). Buyer shall notify Seller of its collection efforts from
time to time and shall not trade or exchange any such delinquent amount for any
consideration. With respect to delinquent rents, Additional Amounts and any
other amounts or other rights of any kind respecting tenants who are no longer
tenants of the Property as of the Closing Date, Seller shall retain all rights
relating thereto.
(iii) All customary operating expenses incurred in
the ordinary course of management and operation of the Property.
(iv) It is acknowledged and agreed by Buyer that
Buyer shall be responsible for all tenant improvement costs and leasing
commissions attributable to (i) Leases identified as post 3/20/97 Leases on
Exhibit "O", to the extent that such costs (or the obligation to pay the same)
have been incurred and (ii) all other Leases executed prior to the Closing Date
which have been approved by Buyer.
(v) Any interest credit between April 28, 1997 and
the Close of Escrow on the Prudential Loan shall be credited to Seller.
(1) Calculation. The prorations and payments shall be made on
the basis of a written statement submitted by Seller to Buyer and Escrow Holder
two (2) days prior to the Close of Escrow and shall be subject to Buyer and
Seller (which statement shall include a list of delinquent rental amounts as of
the Closing Date). In the event any prorations or apportionments made under this
subsection 8.7.2 shall prove to be incorrect for any reason, then any party
shall be entitled to an adjustment to correct the same. Any item which cannot be
finally prorated because of the unavailability of information shall be
tentatively prorated on the basis of the best data then available and reprorated
when the information is available.
14 DBLA-179348L.6
6. Condemnation or Destruction of the Property.
In the event that, after the date hereof but prior to the Closing Date,
(i) any material portion of the Property is taken pursuant to eminent domain
proceedings or (ii) any of the Improvements are materially damaged or destroyed
by any casualty, Buyer may, by written notice to Seller, terminate this
Agreement; provided, however, that in the event this Agreement shall not be so
terminated, all insurance proceeds and/or awards paid or payable on account
thereof shall be credited to Buyer. If any casualty occurs as to which an
insurance deductible applies or as to which the proceeds of insurance are
insufficient, in Buyer's reasonable determination, to restore, repair and/or
rebuild the Property, Buyer may terminate this Agreement.
7. Representations and Warranties.
7.1 Representations and Warranties of Seller.
7.1.1 General Disclaimer. Except as specifically set forth in
paragraph 7.1.2 hereof or elsewhere in this Agreement, the transfer of
the Property hereunder is and will be made on an "as is" basis, without
representations and warranties of any kind or nature, express, implied
or otherwise, including, but not limited to, any representation or
warranty concerning title to the Property, the physical condition of
the Property (including, but not limited to, the condition of the soil
or the Property), the environmental condition of the Property
(including, but not limited to, the presence or absence of hazardous
substances on or respecting the Property), the compliance of the
Property with applicable laws and regulations (including, but not
limited to, zoning and building codes or the status of development or
use rights respecting the Property), the financial condition of WCP or
any other representation or warranty respecting any income, expenses,
charges, liens or encumbrances, rights or claims on, affecting or
pertaining to the Property or any part thereof. Buyer acknowledges that
Buyer has examined, reviewed and inspected all matters which in Buyer's
judgment bear upon the Property and its value and suitability for
Buyer's purposes. Except as to matters specifically set forth in
paragraph 7.1.2 hereof or elsewhere in this Agreement, Buyer will
acquire the Property solely on the basis of its own physical and
financial examinations, reviews and inspections and the title insurance
protection afforded by the Owner's Policy.
7.1.2 Limited Representations and Warranties of Seller.
Subject to the provisions of paragraph 7.1.1 above, Seller hereby
represents and warrants to Buyer as follows:
15 DBLA-179348L.6
(a) Organization Etc. of Seller. Seller is a limited
partnership duly formed and validly existing under the laws of
the State of Washington and has all requisite power and
authority to own and lease its properties and to carry on its
business as presently conducted. The general partner of Seller
is a limited partnership duly formed and validly existing
under the laws of the State of Washington and has all
requisite power and authority to own and lease its properties
and to carry on its business as presently conducted.
(b) Organization Etc. of WCP. WCP is a general
partnership duly formed and validly existing under the laws of
the State of California and has all requisite power and
authority to own and lease it properties and to carry on its
business as presently conducted.
(b) Authorization. Seller and its general partner has
all requisite power and authority to execute and deliver this
Agreement and the other agreements and instruments to be
executed and delivered by it hereunder and to consummate the
transactions contemplated hereby and thereby. The execution,
delivery and performance by Seller of this Agreement and such
other agreements and instruments has been duly and validly
authorized by the general partner of Seller, and no other
action or authorization on behalf of Seller is required in
connection therewith.
(c) Validity and Enforceability. This Agreement has
been duly authorized, executed and delivered by Seller and
constitutes and the other agreements and instruments to be
executed and delivered hereunder by Seller, when executed and
delivered by Seller, will constitute, legal, valid and binding
obligations of Seller enforceable against Seller in accordance
with their respective terms, except as enforceability may be
limited by bankruptcy, insolvency, reorganization, moratorium
or other laws relating to or affecting the enforcement of
creditors' rights generally or by general equitable
principles.
(d) No Conflict. Neither the execution and delivery
of this Agreement by Seller nor the execution and delivery by
Seller of the other agreements and instruments to be executed
and delivered by it here under, nor the consummation of the
transactions contemplated hereunder or thereunder, will (i)
conflict with or result in a breach or violation of, or
constitute a default under, or result in the creation of any
lien, charge or encumbrance upon, any of the properties or
assets of Seller pursuant to the WCP
16 DBLA-179348L.6
Partnership Agreement or any indenture, mortgage, lease, loan
agreement or other agreement or instrument to which Seller is
a party or by which it is bound or to which any of its
properties or assets is subject or (ii) violate any law,
statute, rule, regulation, judgment or decree applicable to
Seller. Since the Ground Lease will terminate upon acquisition
of the Land by New Partnership, no third party consents are
required by the terms of any indenture, mortgage, lease, loan
agreement or other agreement or instrument to which Seller is
a party or by which it is bound or to which any of its
properties or assets is subject for the execution and delivery
of this Agreement or any other agreement or instrument to be
executed and delivered by Seller hereunder or the consummation
of the transactions provided for herein or therein.
(e) No Governmental Consent or Approval Required. No
consent, approval or authorization of, or declaration to or
filing with, any governmental or regulatory authority is
required for the valid execution and delivery by Seller of
this Agreement or any other agreement or instrument to be
executed and delivered by Seller hereunder or the consummation
of the transactions provided for herein or therein.
(f) Leases.
(1) There are no leases, occupancy rights,
licenses, amendments or agreements, oral or written, now in
effect with respect to occupancy at the Property, except those
listed on the lease summary attached as Exhibit "K" and made a
part hereof (collectively, the "Leases"). WCP is not in
default of any landlord obligations under any Leases and,
except as disclosed on Exhibit "J", WCP has completed all
tenant improvement work required under the Leases or any work
letter executed by WCP in connection therewith.
(2) As of the Closing Date, there shall be
no commissions or costs for tenant improvements owing on or
with respect to any Leases in effect as of the Closing Date,
except for extensions, options or renewals of existing Leases
(provided that said commissions are set forth in the
applicable Lease or in Exhibit "K" attached hereto) or in
connection with new Leases which are approved by Buyer.
(3) All of the Leases are in full force and
effect and none of them has been modified or amended except as
set forth in Exhibit "K"; the rents set forth
17 DBLA-179348L.6
in Exhibit "K" are being collected on a current basis and
there are no rent arrearages exceeding one month except as set
forth in Exhibit "K" attached hereto; and there are no
security deposits except as set forth in Exhibit "K".
(4) Neither WCP nor Seller has sent written
notice to any tenant claiming that such tenant is in default,
which default remains uncured, and no action or proceeding
instituted against WCP or Seller by any tenant of the Property
is presently pending in any court.
(5) Notwithstanding anything to the contrary
contained herein, Seller shall have no obligation or liability
to Buyer with respect to any of the foregoing matters which
shall be confirmed as correct in any Tenant Estoppel
Certificate delivered hereunder.
(g) Prudential Matters. WCP is not in monetary
default or, to Seller's knowledge, material non-monetary
default under the Prudential Loan or the Land Option
Agreement.
(h) Litigation. There is no pending (nor, to Seller's
knowledge, has WCP or Seller received any written notice of
any threatened) action, litigation, condemnation or other
proceeding against the Property or against WCP or Seller with
respect to the Partnership Interest.
(i) Compliance. Neither WCP nor Seller has received
any written notice from any governmental authority having
jurisdiction over the Property to the effect that the Property
is not in compliance with applicable laws and ordinances.
(j) Service Agreements. Other than those which are
cancelable on 30 days' notice, neither WCP nor Seller has
entered into any service agreements or contracts ("Service
Agreements") or other agreements, oral or written (other than
as set forth in this Agreement) relating to the Property which
will be in force on the Closing Date, except as described in
Exhibit "L" attached hereto, and neither WCP nor Seller has
received any written notice of any material default thereunder
that remains uncured.
(k) Hazardous Substances. Except as otherwise
disclosed in writing to Buyer, neither WCP nor Seller
has received any written notice from any governmental
agency or third party professional consultants that the
18 DBLA-179348L.6
Property contains any Hazardous Material which would, as of
the date this representation is made, give rise to an
"Environmental Claim" or "Environmental Compliance Obligation"
(as hereinafter defined). In addition, except as otherwise
disclosed in writing to Buyer, the Property does not contain
asbestos, PCB or other materials known to Seller to have, as
of the date of this Agreement, to have been determined to be
hazardous by any Governmental Agency (other than any Excluded
Items) nor does the Property contain, to Seller's knowledge,
any underground storage tank which has not been disclosed in
writing to Buyer. The term "Hazardous Material" means: (I)
asbestos, PCB, urea formaldehyde, any chemicals, flammable
substances or explosive, any radioactive materials (including
radon), any hazardous wastes or substances, any toxic wastes
or substances, or any other materials or pollutants which
have, as of the date of this Agreement, been determined to be
hazardous by any applicable Federal, state, or local law or by
regulations of the U.S. Environmental Protection Agency, the
U.S. Department of Energy, the U.S. Department of Labor, the
U.S. Department of Transportation, and/or any instrumentality
authorized to regulate materials and substances in the
environment which has jurisdiction over the Property
("Environmental Agency"), or (II) any oil, petroleum or
petroleum or petroleum derived substance, any drilling fluids,
produced waters and other wastes associated with the
exploration, development, or production of crude oil, which
materials listed under items (I) and (II) above cause the
Property to be in material violation of any applicable
environmental laws or the regulations of any Environmental
Agency. The term "Hazardous Material" does not include (1)
motor oil and gasoline contained in vehicles not used
primarily for the transport of motor oil or gasoline, or (2)
materials which are stored or used in the ordinary course of a
tenant's occupancy at (or Seller or Seller's managing agents'
operation of) the Property, or which are stored, used, held,
or disposed of in compliance with all applicable laws or
ordinance, or (3) any other materials, items and matters which
are present in connection with, or which otherwise result
from, the use or occupancy of the Property for medical
purposes (it being understood and agreed that Seller makes no
representations or warranties of any kind or nature respecting
the presence of any such medical-related materials, items or
matters). The term "Environmental Claim" means any third-party
claim for personal injury, death and/or property damage (other
than property damage to the Property themselves) made,
asserted or prosecuted by or on behalf of any person or
19 DBLA-179348L.6
entity, including, without limitation, any governmental
entity, or any present or former tenant, and arising or
allegedly arising out of any Hazardous Material which was
present or released in, on, under, or about the Property (or
any part). The term "Environmental Compliance Obligation"
means any requirement imposed by an Environmental Agency to
bring the Property into compliance with applicable Federal,
state, and local laws and regulations directly relating to the
existence in, on, under or about the Property of any Hazardous
Material.
(l) Insurance. Attached hereto as Exhibit "M" is a
summary of the insurance currently carried by WCP with respect
to the Property.
(m) Tax Bills. Attached hereto as Exhibit "N" are
copies of current tax bills with respect to the Property.
(n) Compliance with Law. To Seller's knowledge, the
Property and the use and operation thereof does not violate
any material federal, state, municipal and other governmental
statutes, ordinances, by-laws, rules, regulations or any other
legal requirements, including, without limitation, those
relating to construction, occupancy, zoning, adequacy of
parking, environmental protection, occupational health and
safety and fire safety applicable thereto; and there are
presently in effect all material licenses, permits and other
authorizations necessary for the current use, occupancy and
operation thereof. Neither Seller nor WCP has received written
notice of any threatened request, application, proceeding,
plan, study or effort which would materially adversely affect
the present use or zoning of the Property or which would
modify or realign any adjacent street or highway.
(o) Seller's Knowledge. As used herein, the terms
"Seller's knowledge", "known to Seller" or other similar
phrases means the present actual knowledge of Xxxxxxx Xxxxxxx
and Xxxxxx Xxxxx (which individuals Seller represents and
warrants are or have been sufficiently involved and reasonably
familiar with WCP). Such individuals shall not have any
personal liability in connection herewith.
7.2 Representations and Warranties of Buyer. Buyer hereby represents
and warrants to Seller as follows:
20 DBLA-179348L.6
7.2.1 Organization, Etc. Buyer is a real estate investment
trust duly organized, validly existing and in good standing under the
laws of the State of Maryland and has all requisite power and authority
to own and lease its properties and to carry on its business as
presently conducted.
7.2.2 Authorization. Buyer has all requisite power and
authority to execute and deliver this Agreement and the other
agreements and instruments to be executed and delivered by it hereunder
and to consummate the transactions contemplated hereby and thereby. The
execution, delivery and performance by Buyer of this Agreement and such
other agreements and instruments has been duly and validly authorized
by the trustees of Buyer, and no other action or authorization on
behalf of Buyer is required in connection therewith.
7.2.3 Validity and Enforceability. This Agreement has been
duly authorized, executed and delivered by Buyer and constitutes and
the other agreements and instruments to be executed and delivered
hereunder by Buyer, when executed and delivered by Buyer, will
constitute, legal, valid and binding obligations of Buyer enforceable
against Buyer in accordance with their respective terms, except as
enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium or other laws relating to or affecting the
enforcement of creditors' rights generally or by general equitable
principles.
7.2.4 No Conflict. Neither the execution and delivery of this
Agreement by Buyer nor the execution and delivery by Buyer of the other
agreements and instruments to be executed and delivered by it
hereunder, nor the consummation of the transactions contemplated
hereunder or thereunder, will (i) conflict with or result in a breach
or violation of, or constitute a default under, or result in the
creation of any material lien, charge or encumbrance upon, any of the
properties or assets of Buyer or the Declaration of Trust of Buyer or
any material indenture, mortgage, lease, loan agreement or other
agreement or instrument to which Buyer is a party or by which it is
bound or to which any of its material properties or assets is subject
or (ii) violate any material law, statute, rule, regulation, judgment
or decree applicable to Buyer. No third party consents are required by
the terms of any indenture, mortgage, lease, loan agreement or other
agreement or instrument to which Buyer is a party or by which any of
them is bound or to which any of their respective properties or assets
is subject for the execution and delivery of this Agreement or any
other agreement or instrument to be executed and delivered by Buyer
hereunder
21 DBLA-179348L.6
or the consummation of the transactions provided for herein or therein
which will not be obtained prior to Closing.
7.2.5 No Governmental Consent or Approval Required. No
consent, approval or authorization of, or declaration to or filing
with, any governmental or regulatory authority is required for the
valid execution and delivery by Buyer of this Agreement or any other
agreement or instrument to be executed and delivered by Buyer hereunder
or the consummation of the transactions provided for herein or therein.
7.3 Survival. Any cause of action of a party for a breach of the
foregoing representations and warranties shall survive until December 1, 1997,
at which time such representations and warranties (and any cause of action
resulting from a breach thereof not then asserted in writing or in litigation)
shall terminate (such period ending on December 1, 1997 being herein called the
"Survival Period"). Notwithstanding the foregoing, if Buyer shall have knowledge
as of the Closing Date that any of the representations or warranties of Seller
contained herein are false or inaccurate or that Seller is in breach or default
of any of its obligations under this Agreement, and Buyer nonetheless closes the
transactions hereunder and acquires the Property, then Seller shall have no
liability or obligation respecting such false or inaccurate representations or
warranties or other breach or default (and any cause of action resulting
therefrom shall terminate upon such closing hereunder).
7.4 Limitation of Liability.
7.4.1 Notwithstanding anything to the contrary contained
herein, if the closing of the transactions hereunder shall have occurred (and
Buyer shall not have waived, relinquished or released any applicable rights in
further limitation), the aggregate liability of Seller (and any direct or
indirect partner in Seller) arising pursuant to or in connection with the
representations, warranties, indemnifications, covenants or other obligations
(whether express or implied) of Seller under this Agreement (or any document
executed or delivered in connection herewith) shall not exceed $500,000.00 (plus
up to $50,000.00 in the aggregate for legal fees and costs to the extent payable
pursuant to Section 10.10 hereof).
7.4.2 No constituent partner in, or agent of Seller, nor any
advisor, trustee, director, officer, employee, beneficiary, shareholder,
participant, representative or agent of any corporation or trust that is, or
becomes, a constituent partner in Seller and Xxxxxx Runstad Associates Limited
Partnership, a Washington limited partnership ["WRALP"] shall have any personal
liability, directly or indirectly, under or in connection with this Agreement or
any agreement made or entered
22 DBLA-179348L.6
into under or pursuant to the provisions of this Agreement, or any amendment or
amendments to any of the foregoing made at any time or times, heretofore or
hereafter, and Buyer and its successors and assigns and, without limitation, all
other persons and entities, shall look solely to the assets of Seller for the
payment of any claim or for any performance, and Buyer, on behalf of itself and
its successors and assigns, hereby waives any and all such personal liability.
Notwithstanding anything to the contrary contained in this Agreement, neither
the negative capital account of any constituent partner in Seller (or in any
other constituent partner of Seller), nor any obligation of any constituent
partner in WCP (or in any other constituent partner of Seller) to restore a
negative capital account or to contribute capital to MOBL (or to any other
constituent partner of Seller), shall at any time be deemed to be the property
or an asset of Seller or any such other constituent partner (and neither Buyer
nor any of its successors or assigns shall have any right to collect, enforce or
proceed against or with respect to any such negative capital account of
partner's obligation to restore or contribute).
8. Covenants.
8.1 Interim Covenants of Buyer. Until the Closing Date or the sooner
termination of this Agreement:
8.1.1 Representations. Buyer covenants and agrees that it will not take
any action or enter into any transaction which would cause any representation
contained in paragraph 7.2 of this Agreement to be inaccurate in any material
respect if remade immediately after the occurrence of such action or
transaction.
8.2 Interim Covenants of Seller. Until the Closing Date or the sooner
termination of this Agreement:
8.2.1 Representations. Seller covenants and agrees that it
will not take any action or enter into any transaction which would
cause any representation contained in paragraph 7.1.2 of this Agreement
to be inaccurate in any material respect if remade immediately after
the occurrence of such action or transaction.
8.2.2 Additional Actions. Seller will use diligent efforts to
take, or cause to be taken, all action, and to do, or cause to be done,
all things necessary, proper or advisable to consummate the
transactions contemplated by this Agreement and, in connection
therewith, shall exercise all rights and remedies at law and in equity
against any third party to the extent available and necessary to cause
the Closing to occur, provided that Buyer shall agree to reimburse
Seller the costs thereof. Seller and Buyer shall
23 DBLA-179348L.6
consult with respect to the exercise of any such rights and remedies.
8.2.3 Compliance with Laws, Etc.. Seller shall comply, and
cause WCP to comply, in all material respects, with (i) all laws,
regulations and other requirements from time to time applicable of
every governmental body having jurisdiction of the Property or the use
or occupancy of the Improvements located thereon and (ii) all terms,
covenants and conditions of all leases, all instruments of record and
any other agreements affecting the Property.
8.2.4 Approval of Agreements. Seller shall not permit WCP to
and shall not enter into, modify, amend or terminate any lease or any
other agreement with respect to the Property which would encumber or be
binding upon the Property or WCP from and after the Closing Date
without in each instance obtaining the prior written consent of the
Buyer.
8.2.5 Notice of Material Changes or Untrue Representations.
Upon learning of any material change in any condition with respect to
the Property or of any event or circumstance which makes any
representation or warranty of Seller to Buyer under this Agreement
untrue or misleading, Seller shall promptly to notify Buyer thereof
(Buyer agreeing, on learning of any such fact or condition, promptly to
notify Seller thereof).
8.2.6 Operation of Property. Seller shall continue to operate
and cause WCP to continue to operate the Property in a good and
businesslike fashion consistent with their past practices and to cause
the Property to be maintained in good working order and condition in a
manner consistent with past practice.
9. Indemnification.
9.1 By Buyer. Buyer shall hold harmless, indemnify and defend Seller
from and against: (1) any claims, losses, damages, liabilities and expenses
(including reasonable attorneys' fees), imposed upon or incurred in connection
with any breach of a representation and warranty of Buyer contained in this
Agreement; (2) any and all loss, damage or third party claims in any way arising
from Buyer's inspections or examinations of the Property prior to the Closing
Date; and (3) all costs and expenses, including reasonable attorneys' fees,
incurred by Seller as a result of the foregoing.
9.2 By Seller. Seller shall hold harmless, indemnify and defend Buyer
from and against: (1) any claims, losses, damages, liabilities and expenses
(including reasonable attorneys' fees),
24 DBLA-179348L.6
imposed upon or incurred in connection with any breach of a representation and
warranty of Seller contained in this Agreement; and (2) all costs and expenses,
including reasonable attorneys' fees, incurred by Buyer as a result of such
claims. The foregoing indemnity shall not cover any matters relating to title or
marketability of the Property (Buyer relying exclusively upon the coverage
provided by the Owner's Policy as to such matters).
9.3 General Provisions. The indemnification obligations under this
Agreement shall be subject to the limitations set forth in Section 11.4, shall
survive the Closing and shall be subject to the following provisions:
9.3.1 Procedure. The party seeking indemnification
("Indemnitee") shall notify the other party ("Indemnitor") of any Claim
against Indemnitee within fifteen (15) business days after it has
notice of such Claim, but failure to notify Indemnitor shall in no case
prejudice the rights of Indemnitee under this Agreement unless
Indemnitor shall be prejudiced by such failure and then only to the
extent of such prejudice. Should Indemnitor fail to discharge or
undertake to defend Indemnitee against such liability (with counsel
approved by Indemnitee), within ten (10) days after Indemnitee gives
Indemnitor written notice of the same, then Indemnitee may settle such
Claim, and Indemnitor's liability to Indemnitee shall be conclusively
established by such settlement, the amount of such liability to include
both the settlement consideration and the reasonable costs and
expenses, including attorneys' fees, incurred by Indemnitee in
effecting such settlement. Indemnitee shall have the right to employ
its own counsel in any such case, but the fees and expenses of such
counsel shall be at the expense of Indemnitee unless: (a) the
employment of such counsel shall have been authorized in writing by
Indemnitor in connection with the defense of such action, (b)
Indemnitor shall not have employed counsel to direct the defense of
such action, or (c) Indemnitee shall have reasonably concluded that
there may be defenses available to it which are different from or
additional to those available to Indemnitor (in which case Indemnitor
shall not have the right to direct the defense of such action or of
Indemnitee), in any of which events such fees and expenses shall be
borne by Indemnitor.
9.3.2 Beneficiaries. The indemnification obligations
under this Agreement shall also extend to any present or future
advisor, trustee, director, officer, partner, member, employee,
beneficiary, shareholder, participant or agent of or in Indemnitee or
any entity now or hereafter having a direct or indirect ownership
interest in Indemnitee.
25 DBLA-179348L.6
10. Miscellaneous.
10.1 Brokers. Other than the engagement of Xxxxx Xxxxxx by Seller whose
fees shall be paid by Seller out of escrow and a brokerage fee payable to
Xxxxxxx Xxxxx, LLP (which is to be paid through escrow by New Partnership),
Seller represents and warrants to Buyer, and Buyer represents and warrants to
Seller that no broker or finder has been engaged by it, respectively, in
connection with any of the transactions contemplated by this Agreement or to its
knowledge is in any way connected with any of such transactions. In the event of
a claim for broker's or finder's fee or commissions in connection herewith, then
Seller shall indemnify and defend Buyer from the same if it shall be based upon
any statement or agreement alleged to have been made by Seller; and Buyer shall
defend and indemnify Seller from the same if it shall be based upon any
statement or agreement alleged to have been made by Buyer.
10.2 Entire Agreement. This Agreement contains the entire agreement
between the parties respecting the matters herein set forth and supersedes all
prior agreements between the parties hereto respecting such matters. This
Agreement may not be modified or amended except by written agreement signed by
both parties.
10.3 Time of the Essence. Time is of the essence of this Agreement.
10.4 Interpretation. Paragraph headings shall not be used in construing
this Agreement. Each party acknowledges that such party and its counsel, after
negotiation and consultation, have reviewed and revised this Agreement. As such,
the terms of this Agreement shall be fairly construed and the usual rule of
construction, to the effect that any ambiguities herein should be resolved
against the drafting party, shall not be employed in the interpretation of this
Agreement or any amendments, modifications or exhibits hereto or thereto.
10.5 Governing Law. Except for matters regarding the internal affairs
of Buyer and issues of or limitations on any personal liability of the
shareholders and trustees of Buyer for obligations of Buyer, as to which the
laws of the State of Maryland shall govern, this Agreement shall be construed
and enforced in accordance with the laws of the State of California.
10.6 Successors and Assigns. Buyer may not assign or transfer its
rights or obligations under this Agreement without the prior written consent of
Seller (in which event such transferee shall assume in writing all of the
transferor's obligations hereunder, but such transferor shall not be released
from its obligations hereunder) which shall not be unreasonably withheld and
shall not be required for assignments or transfers
26 DBLA-179348L.6
to affiliates of Buyer. No consent given by Seller to any transfer or assignment
of Buyer's rights or obligations hereunder shall be construed as a consent to
any other transfer or assignment of Buyer's rights or obligations hereunder. No
transfer or assignment in violation of the provisions hereof shall be valid or
enforceable. Subject to the foregoing, this Agreement and the terms and
provisions hereof shall inure to the benefit of and be binding upon the
successors and assigns of the parties.
10.7 Notices. Any notice which a party is required or may desire to
give the other shall be in writing and shall be sent by personal delivery or by
mail either (i) by United States registered or certified mail, return receipt
requested, postage prepaid, (ii) by facsimile transmission (followed by
overnight delivery pursuant to clause (iii) hereafter), or (iii) by Federal
Express or similar generally recognized overnight carrier regularly providing
proof of delivery, addressed as follows (subject to the right of a party to
designate a different address for itself by notice similarly given):
To Buyer: To Escrow Holder:
Health and Retirement Properties Chicago Title Company/
Trust Escrow Division
000 Xxxxxx Xxxxxx 000 Xxxxx Xxxxxx Xxxxxx
Xxxxxx, XX 00000 9th Floor
Attention: Xxxxx X. Xxxxxxx, Xxx Xxxxxxx, Xxxxxxxxxx 00000
President Attention: Xx. Xxxx Xxxxxxxx
Telephone: (000) 000-0000 Telephone: (000) 000-0000
Facsimile: (000) 000-0000 Facsimile: (000) 000-0000
With Copy To:
Xxxxxxxx & Worcester LLP
Xxx Xxxx Xxxxxx Xxxxxx
Xxxxxx, XX 00000
Attn: Xxxxxxxx X. Xxxxx, Esq.
Telephone (000) 000-0000
Facsimile: (000) 000-0000
27 DBLA-179348L.6
To Seller:
Medical Office Buildings, Ltd.
c/o Wright Runstad & Co.
0000 Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxxxx 00000-0000
Attention: Mr. H. Xxx Xxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
With Copy To:
Xxxxx Xxxxxxxxxx
000 Xxxxx Xxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxx Xxxxx, Esq.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Any notice so given by mail shall be deemed to have been given as of the date of
delivery (whether accepted or refused) established by U.S. Post Office return
receipt or the overnight carrier's proof of delivery, as the case may be. Any
such notice not so given shall be deemed given upon receipt of the same by the
party to whom the same is to be given.
10.8 Third Parties. Nothing in this Agreement, whether expressed or
implied, is intended to confer any rights or remedies under or by reason of this
Agreement on any other person other than the parties hereto and their respective
successors and assigns, nor is anything in this Agreement intended to relieve or
discharge the obligation or liability of any third persons to any party to this
Agreement, nor shall any provision hereof give any third parties any right of
subrogation or action over or against any party to this Agreement. This
Agreement is not intended to and does not create any third party beneficiary
rights whatsoever.
10.9 ARBITRATION OF CERTAIN DISPUTES. ANY CONTROVERSY OR CLAIM ARISING
UNDER OR RELATING TO THE TERMS OF THIS AGREEMENT OR ANY OF THE EXHIBITS ATTACHED
TO IT, AND ANY PROCEEDINGS TO ENFORCE THIS AGREEMENT OR RIGHTS UNDER THIS
AGREEMENT AND ITS EXHIBITS OTHER THAN THE "EXCLUDED MATTERS" (AS HEREINAFTER
DEFINED) SHALL BE SETTLED BY ARBITRATION IN THE CITY OF LOS ANGELES, IN
ACCORDANCE WITH THE EXISTING RULES ("RULES") OF PRACTICES AND PROCEDURE OF THE
JUDICIAL ARBITRATION & MEDIATION SERVICES ("JAMS"). EACH PARTY SHALL SELECT AN
ARBITRATOR FROM THE APPROVED LIST PROVIDED BY JAMS, SUCH SELECTION TO BE MADE BY
NOTIFICATION TO THE OTHER PARTY GIVEN IN WRITING WITHIN FIFTEEN (15) DAYS OF THE
SUBMISSION OF THE DISPUTE TO ARBITRATION HEREUNDER. FAILURE OF A PARTY TO GIVE
NOTICE OF ITS SELECTION SHALL CAUSE THE SINGLE ARBITRATOR SELECTED BY THE OTHER
PARTY TO
28 DBLA-179348L.6
BE THE SOLE ARBITRATOR IN CONNECTION WITH THE APPLICABLE DISPUTE HEREUNDER. IF
EACH PARTY DESIGNATES AN ARBITRATOR, THEN WITHIN FIFTEEN (15) DAYS AFTER BOTH
ARBITRATORS HAVE BEEN SO DESIGNATED, SUCH ARBITRATORS SHALL DESIGNATE A THIRD
ARBITRATOR FROM A JAMS-APPROVED LIST. THE DECISION OF A MAJORITY OF THE
ARBITRATORS HEREUNDER SHALL BE CONCLUSIVE. AS SOON AS PRACTICABLE AFTER
SELECTION OF THE ARBITRATOR(S), THE ARBITRATOR(S) SHALL DETERMINE A REASONABLE
ESTIMATE OF THE ANTICIPATED FEES AND COSTS OF THE ARBITRATOR(S), AND SHALL
RENDER A STATEMENT TO EACH PARTY SETTING FORTH SAID FEES AND COSTS. THEREAFTER
EACH PARTY SHALL, WITHIN TEN (10) DAYS OF RECEIPT OF SAID STATEMENT, DEPOSIT
ONE-HALF OF SAID SUM WITH THE ARBITRATOR(S) TO BE APPLIED AGAINST SUCH FEES AND
COSTS (SUBJECT TO THE PROVISIONS OF THIS AGREEMENT). FAILURE OF ANY PARTY TO
MAKE SUCH DEPOSIT SHALL RESULT IN A FORFEITURE BY THE NON-DEPOSITING PARTY OF
THE RIGHT TO PROSECUTE OR DEFEND THE CLAIM WHICH IS THE SUBJECT OF THE
ARBITRATION, BUT SHALL NOT OTHERWISE SERVE TO XXXXX, STAY OR SUSPEND THE
ARBITRATION PROCEEDINGS. THE ARBITRATOR(S) SHALL HAVE THE RIGHT TO DETERMINE THE
SCOPE OF THEIR JURISDICTION, THE EXTENT OF DISCOVERY AND TO GRANT EQUITABLE
RELIEF, INCLUDING, WITHOUT LIMITATION, THE RIGHT TO ORDER THE EXPUNGEMENT OF ANY
LIS PENDENS WHICH THE ARBITRATOR(S) DEEM IMPROPER. THE PREVAILING PARTY SHALL BE
ENTITLED TO REASONABLE ATTORNEYS' FEES AND OTHER REASONABLE COSTS INCURRED IN
CONNECTION WITH THE ARBITRATION OR ANY OTHER LITIGATION PLUS INTEREST ON THE
AMOUNT OF ANY AWARD. JUDGMENT UPON THE AWARD RENDERED BY THE ARBITRATOR(S) MAY
BE ENTERED IN ANY COURT HAVING JURISDICTION THEREOF. THIS PARAGRAPH MUST BE
INITIALED BELOW IN ORDER FOR THIS PARAGRAPH OF THE AGREEMENT TO BE BINDING.
NOTICE: BY INITIALLING IN THE SPACE BELOW, YOU ARE AGREEING TO HAVE ANY
DISPUTE ARISING OUT OF THE MATTERS INCLUDED IN THE "ARBITRATION OF DISPUTES"
PROVISION DECIDED BY NEUTRAL ARBITRATION AS PROVIDED BY CALIFORNIA LAW, AND YOU
ARE GIVING UP ANY RIGHTS YOU MIGHT POSSESS TO HAVE THE DISPUTE LITIGATED IN A
COURT OR BEFORE A JURY. BY INITIALLING IN THE SPACE BELOW, YOU ARE GIVING UP
YOUR JUDICIAL RIGHTS TO DISCOVERY AND APPEAL, UNLESS SUCH RIGHTS ARE
SPECIFICALLY INCLUDED IN THE "ARBITRATION OF DISPUTES" PROVISION. IF YOU REFUSE
TO SUBMIT TO ARBITRATION AFTER AGREEING TO THIS PROVISION, YOU MAY BE COMPELLED
TO ARBITRATE UNDER THE AUTHORITY OF THE CALIFORNIA CODE OF CIVIL PROCEDURE. YOUR
AGREEMENT TO THIS ARBITRATION PROVISION IS VOLUNTARY. WE HAVE READ AND
UNDERSTAND THE FOREGOING AND AGREE TO SUBMIT DISPUTES ARISING OUT OF THE MATTERS
INCLUDED IN THE "ARBITRATION OF DISPUTES" PROVISION TO NEUTRAL ARBITRATION.
BUYER'S INITIALS: SELLER'S INITIALS:
As used herein, "Excluded Matters" means any controversy, claim or proceeding
with respect to or otherwise related to a breach or default of any
representation or warranty contained in this
29 DBLA-179348L.6
Agreement (which matters shall not be subject to the arbitration provisions
contained herein).
10.10 Legal Costs. The parties hereto agree that they shall pay
directly any and all legal costs which they have incurred on their own behalf in
the preparation of this Agreement and all deeds and other agreements pertaining
to this transaction and that such legal costs shall not be part of the closing
costs. In addition, if either Buyer or Seller brings any suit or other
proceeding with respect to the subject matter or the enforcement of this
Agreement, the prevailing party (as determined by the court, agency or other
authority before which such suit or proceeding is commenced), in addition to
such other relief as may be awarded, shall be entitled to recover reasonable
attorneys' fees, expenses and costs of investigation actually incurred. The
foregoing includes, but is not limited to, attorneys' fees, expenses and costs
of investigation (including, without limitation, those incurred in appellate
proceedings), costs incurred in establishing the right to indemnification, or in
any action or participation in, or in connection with, any case or proceeding
under Chapter 7, 11 or 13 of the Bankruptcy Code (11 United States Code Sections
101 et seq.), or any successor statutes.
10.11 Further Instruments. Each party will, whenever (whether before or
after Closing) and as often as it shall be reasonably requested so to do by the
other, cause to be executed, acknowledged or delivered any and all such further
instruments and documents as may be necessary or proper, in the reasonable
opinion of the requesting party, in order to carry out the intent and purpose of
this Agreement (provided, however, the same do not materially increase the costs
to, or liability or obligations of, a party in a manner not otherwise provided
for herein). In connection therewith, at Buyer's request, upon prior arrangement
with Seller, at any time during reasonable business hours within two (2) years
after the Closing, Seller shall, at Buyer's cost and expense, provide to Buyer's
designated independent auditor, reasonable access to appropriate books and
records of Seller relating solely to the Property regarding the period for which
Buyer is required by applicable rules or regulations of the Securities Exchange
Commission to have audited financial statements prepared with respect to the
Property, but only to the extent that such books and records are then in the
Seller's possession or control, relate to the period during which WCP or Seller
owned the Property and are not confidential, proprietary or privileged. Seller
shall not make or be deemed to make any representations or warranties of any
kind regarding such books and records (including, without limitation, the
accuracy or thoroughness thereof), nor shall Seller have any liability of any
kind or nature with respect thereto.
30 DBLA-179348L.6
10.12 Tax Matters. Seller has obtained or will obtain independent
advice on all tax matters and agrees to hold Buyer and its partners and their
officers, directors and employees free and harmless from any tax consequences
whatsoever as a result of the acquisition of the Property and further
acknowledges that Buyer has not made any representations or warranties express
or implied about any tax consequences relating to this transaction.
10.13 Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which shall
constitute one and the same agreement.
11. DEFAULT
11.1 Default by Seller. If Seller shall have made any representation of
warranty herein which shall be untrue or misleading in any material respect, or
if Seller shall fail to perform any of the material covenants and agreements
contained herein to be performed by them and such failure continues for a period
of ten (10) days after notice thereof from Buyer, Buyer may terminate this
Agreement and/or Buyer may pursue any and all remedies available to it at law or
in equity, including, but not limited to, a suit for specific performance or
other equitable relief.
11.2 Default by Buyer. If Buyer shall have made any representation or
warranty herein which shall be untrue or misleading in any material respect, or
if Buyer shall fail to perform any of the covenants and agreements contained
herein to be performed by it and such failure shall continue for a period of ten
(10) days after notice thereof from Seller, Seller may, as its sole remedy at
law and in equity, terminate this Agreement and receive the liquidated damages
provided in Section 11.4 hereof.
11.3 Nonliability of Trustees. THE DECLARATION OF TRUST ESTABLISHING
THE BUYER, A COPY OF WHICH, TOGETHER WITH ALL AMENDMENTS THERETO (THE
"DECLARATION"), IS DULY FILED WITH THE DEPARTMENT OF ASSESSMENTS AND TAXATION OF
THE STATE OF MARYLAND, PROVIDES THAT THE NAME "HEALTH AND RETIREMENT PROPERTIES
TRUST" REFERS TO THE TRUSTEES UNDER THE DECLARATION COLLECTIVELY AS TRUSTEES,
BUT NOT INDIVIDUALLY OR PERSONALLY, AND THAT NO TRUSTEE, OFFICER, SHAREHOLDER,
EMPLOYEE OR AGENT OF THE PURCHASER SHALL BE HELD TO ANY PERSONAL LIABILITY,
JOINTLY OR SEVERALLY, FOR ANY OBLIGATION OF, OR CLAIM AGAINST, THE BUYER. ALL
PERSONS DEALING WITH THE BUYER, IN ANY WAY, SHALL LOOK ONLY TO THE ASSETS OF THE
BUYER FOR THE PAYMENT OF ANY SUM OR THE PERFORMANCE OF ANY OBLIGATION.
11.4 Certain Remedies.
31 DBLA-179348L.6
LIQUIDATED DAMAGES AND DISPOSITION OF ESCROW DEPOSIT. IF THE
TRANSACTION HEREIN PROVIDED SHALL NOT BE CLOSED BY REASON OF SELLER'S DEFAULT
UNDER THIS AGREEMENT OR THE FAILURE OF SATISFACTION OF THE CONDITIONS DESCRIBED
IN PARAGRAPH 4 HEREOF OR THE TERMINATION OF THIS AGREEMENT IN ACCORDANCE WITH
PARAGRAPH 6 HEREOF, AND BUYER SHALL NOT HAVE DEFAULTED UNDER THIS AGREEMENT,
THEN THE ESCROW DEPOSIT SHALL BE RETURNED TO BUYER, AND NEITHER PARTY SHALL HAVE
ANY FURTHER OBLIGATION OR LIABILITY TO THE OTHER; PROVIDED, HOWEVER, IF THE
TRANSACTIONS HEREUNDER SHALL FAIL TO CLOSE BY REASON OF SELLER'S DEFAULT, AND
BUYER SHALL HAVE FULLY PERFORMED ITS OBLIGATIONS HEREUNDER AND SHALL BE READY,
WILLING AND ABLE TO CLOSE, THEN BUYER SHALL BE ENTITLED TO SPECIFICALLY ENFORCE
THIS AGREEMENT (BUT NO OTHER ACTION, FOR DAMAGES OR OTHERWISE, SHALL BE
PERMITTED). IN THE EVENT THE TRANSACTION HEREIN PROVIDED SHALL NOT CLOSE FOR ANY
REASON OTHER THAN THE FAILURE OF SATISFACTION OF THE CONDITIONS DESCRIBED IN
PARAGRAPH 4 HEREOF OR THE TERMINATION OF THIS AGREEMENT IN ACCORDANCE WITH
PARAGRAPH 6 HEREOF OR THE DEFAULT OF SELLER, THEN THE SUM OF $5,000,000 IS
HEREBY AGREED TO BE FULL COMPENSATION AND LIQUIDATED DAMAGES PAYABLE TO SELLER
UNDER AND IN CONNECTION WITH THIS AGREEMENT AND THE DEPOSIT SHALL BE PAID TO
SELLER AS PARTIAL PAYMENT OF SUCH SUM. IN CONNECTION WITH THE FOREGOING, THE
PARTIES RECOGNIZE THAT SELLER WILL INCUR EXPENSE IN CONNECTION WITH THE
TRANSACTION CONTEMPLATED BY THIS AGREEMENT AND THAT THE PROPERTY WILL BE REMOVED
FROM THE MARKET AND SELLER WILL BE EXPOSED TO DAMAGES TO THIRD PARTIES. FURTHER,
THAT IT IS EXTREMELY DIFFICULT AND IMPRACTICABLE TO ASCERTAIN THE EXTENT OF
DETRIMENT TO SELLER CAUSED BY THE BREACH BY BUYER UNDER THIS AGREEMENT AND THE
FAILURE OR THE CONSUMMATION OF THE TRANSACTION CONTEMPLATED BY THIS AGREEMENT OR
THE AMOUNT OF COMPENSATION SELLER SHOULD RECEIVE AS A RESULT OF BUYER'S BREACH
OR DEFAULT. IN THE EVENT THE SALE OF THE PROPERTY SHALL NOT BE CONSUMMATED ON
ACCOUNT OF BUYER'S DEFAULT, THEN THE SUM OF $5,000,000, INCLUDING THE ESCROW
DEPOSIT, SHALL BE SELLER'S SOLE AND EXCLUSIVE DAMAGES UNDER THIS AGREEMENT BY
REASON OF SUCH DEFAULT.
Seller's Initials Buyer's Initials
11.5 Confidentiality.
No partner, principal, employee, partner or affiliate of Seller or WCP
shall trade in the shares of Buyer until public announcement of this transaction
has been made. Seller shall not make any public announcement of the transactions
contemplated by this Agreement or otherwise disclose this transaction to any
third party without the prior written consent of Buyer.
32 DBLA-179348L.6
IN WITNESS WHEREOF, the parties hereto have executed this Contribution
Agreement as of the date first above written.
SELLER: MEDICAL OFFICES BUILDINGS, LTD., a Washington
limited partnership
BY: XXXXXX RUNSTAD ASSOCIATES LIMITED
PARTNERSHIP, a Washington limited
partnership
Its General Partner
BY: XXXXXX RUNSTAD & COMPANY, a
Washington corporation
Its General Partner
By: /s/ X.X. Xxxxxxx
Name: X.X. Xxxxxxx
Title: Chairman and C.E.O.
BUYER: HEALTH AND RETIREMENT PROPERTIES TRUST, a
Maryland real estate investment trust
By: /s/ Xxxx Xxxxx
Name: Xxxx Xxxxx
Title: Treasurer and C.F.O.
33 DBLA-179348L.6
ESCROW HOLDER'S ACKNOWLEDGEMENT
The undersigned hereby executes this Exchange Agreement to evidence is
agreement to act as Escrow Holder in accordance with the terms of this
Agreement.
Date: ____________, 1997 CHICAGO TITLE INSURANCE
COMPANY, a Missouri corporation
By:_______________________________
Name:_____________________________
Title:____________________________
34 DBLA-179348L.6
EXHIBIT LIST
"A" - Property Description
"B" - List of Personal Property
"C" - Form of Guaranty
"D" - Pro Forma Title Policy
"E" - Memorandum Regarding New Partnership
Agreement
"F" - Required Tenants List
"G" - Intentionally Deleted
"H" - Intentionally Deleted
"I-1" - Leasehold Assignment
"I-2" - General Assignment
"J" - Exception List to Seller's Representations
"K" - List of Leases
"L" - Service Agreements
"M" - Current Insurance
"N" - Tax Bills
"O" - Lease Commissions and Tenant Improvement
Costs
35 DBLA-179348L.6
The schedules to this agreement have been omitted pursuant to Regulation S-K,
Item 601(b)(2). The contents of such schedules are identified on the List of
Exhibits which is a part of the agreement. The Company undertakes to provide
such schedules to the Securities and Exchange Commission upon request.
