EXHIBIT 2.1
PURCHASE AND SALE AGREEMENT
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[Lakeview Office Park II and III, Indianapolis, Indiana]
THIS PURCHASE AND SALE AGREEMENT (this "Agreement") is made as of the 4th
day of August, 1997, by and between FIRST CAPITAL INSURED REAL ESTATE LIMITED
PARTNERSHIP, an Illinois limited Partnership ("Seller"), with an office at c/o
Equity Office Holdings, L.L.C., Two North Riverside Plaza, Suite 2200, Chicago,
Illinois 60606, and GOLUB & COMPANY OF ILLINOIS, INC., an Illinois corporation
("Purchaser"), with an office at 625 North Michigan Avenue, Chicago, Illinois
60611-3110.
RECITALS
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A. Seller is the owner of a certain parcel of real estate (the "Real
Property") in Marion County, Indiana, which parcel is more particularly
described in attached Exhibit A, and upon which is located certain office
buildings commonly known as "Lakeview Office Park II and III" whose address is
8902 and 9002 N. Meridian Street.
B. Seller desires to sell to Purchaser, and Purchaser desires to purchase
from Seller, the Property (as such term is hereinafter defined), 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. 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) all buildings and improvements owned by Seller and any and all of
Seller's rights, easements, licenses and privileges presently thereon or
appertaining thereto (collectively, the "Improvements");
(b) Seller's right, title and interest in and to the leases, as well
as any licenses and other agreements to occupy the Improvements (the
"Leases") affecting the Property or any part thereof;
(c) all furniture, furnishings, fixtures, equipment, maintenance
vehicles, tools and other tangible personalty owned by Seller, located on
the Property and used in connection therewith (collectively, the "Tangible
Personal Property"), a list of which is attached hereto as Exhibit B; and
(d) all right, title and interest of Seller under any and all of the
maintenance, service, advertising and other like contracts and agreements
with respect to the ownership and operation of the Property (the "Service
Contracts");
all to the extent applicable to the period from and after the Closing (as
such term is hereinafter defined). The Real Property, along with items (a)
through (d) above, are collectively referred to in this Agreement as the
"Property". All of the foregoing expressly excludes: (i) all property owned by
tenants or other users or occupants of the Property; (ii) all rights with
respect to any refund of taxes applicable to any period prior to the "Closing
Date" (as defined herein) subject, however, to the rights of tenants under
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Leases, and to the provisions of Section 4(C) below; and (iii) all computers and
computer equipment in the management office of the Property.
2. PURCHASE PRICE. The purchase price to be paid by Purchaser to Seller
for the Property is Twelve Million Eight Hundred Seventy Thousand and No/100
Dollars ($12,870,000.00) (the "Purchase Price"). The Purchase Price shall be
paid as follows:
A. Earnest Money.
(i) Prior to the execution of this Agreement, Purchaser has
delivered to the National Escrow Division of Chicago Title Insurance Company,
171 North Clark Street, Chicago, Illinois 60601-3294, Attention: Valerie Faust,
Telephone: 312/223-2927, Facsimile: 312/223-5800 (the "Escrow Agent") initial
earnest money (the "Initial Earnest Money") in the sum of Fifty Thousand and
No/100 Dollars ($50,000.00). Purchaser and Seller, by their execution and
delivery of this Agreement, hereby jointly instruct the Escrow Agent to release
and deliver the Initial Earnest Money to Seller, to be held by Seller pursuant
to the terms of this Agreement. Purchaser and Seller further agree to execute
and deliver any necessary or further documentation to cause the delivery and
release of the Initial Earnest Money to Seller. On or before 5:00 p.m. on August
15, 1997, Purchaser shall deliver and cause to be released directly to Seller
additional earnest money (the "Additional Earnest Money") in the sum of Fifty
Thousand and No/100 Dollars ($50,000.00), to be held by Seller pursuant to the
terms of this Agreement. The Initial Earnest Money and the Additional Earnest
Money are referred to in this Agreement as the "Earnest Money". Seller shall
have no obligation to invest the Earnest Money, but if Seller does invest the
Earnest Money, any and all interest earned on the Earnest Money shall be
reported to Purchaser's federal tax identification number (unless the Earnest
Money is paid to Seller as liquidated damages pursuant to Section 7(B) below, in
which case such interest shall be reported to Seller's federal tax
identification number).
(ii) Purchaser shall not be entitled to a return of the Earnest
Money, except as expressly provided in Sections 3(C), 5(A), 5(B), 7(A), 8(A) and
8(B) of this Agreement. If the transaction closes in accordance with the terms
of this Agreement, at Closing, the Earnest Money shall be credited to Purchaser
as partial payment of the Purchase Price. If the transaction fails to close due
to a default on the part of Purchaser, the Earnest Money shall be retained by
Seller, without prejudice to the other rights and remedies of Seller due to such
a default as provided in this Agreement. If the transaction fails to close due
to a default on the part of Seller, the Earnest Money shall be returned to
Purchaser, and Purchaser shall have the remedy provided for in Section 7(A)
below.
B. Cash at Closing. At Closing, Purchaser shall pay to Seller, by
wire transferred current federal funds, an amount equal to the Purchase Price,
minus the sum of the Earnest Money, 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
A. Title Commitment. Prior to the date hereof, Seller has obtained
and caused to be delivered to Purchaser a current (that is, effective within
thirty (30) days prior to the date of this Agreement) commitment for an ALTA
Owner's Title Insurance Policy (the "Title Commitment") containing the following
endorsements: extended coverage, zoning 3.1 with parking, single tax parcel,
contiguity (if applicable), survey, location, restrictions (if applicable), and
access; in the amount of the Purchase Price, issued by the National Accounts
Division of Chicago Title Insurance Company, 171 North Clark Street, Chicago,
Illinois 60601-3294, Attention: Cindy Malone, Telephone: 312/223-3360,
Facsimile: 312/223-5791 (the "Title Insurer"), together with copies of all
recorded items. At Closing, the conveyance of the Property to Purchaser shall be
made subject only to those exceptions to title which are more fully described on
attached Exhibit C and exceptions to title which become Permitted Exceptions
pursuant to this Section 3 (collectively, the "Permitted Exceptions").
B. Survey. Seller shall, within twenty (20) days after the date of
this Agreement, deliver to Purchaser a survey (the "Survey") of the Real
Property certified to Seller, Purchaser, the Title Insurer and Purchaser's
Mortgagee, if any, prepared by a surveyor licensed in the State where the Real
Property is located in accordance with the Minimum Standard Requirements for
Land Title Surveys (as jointly established and adopted in 1992 by the American
Land Title Association and American Congress on Surveying and Mapping) for an
"Urban ALTA/ACSM Land Title Survey" (as defined therein), and containing Table A
Items 1, 2, 3, 4, 6, 7a, 7b, 8, 9, 10, 11, 12 and 13.
C. Review of Title Commitment and Survey. If the Title Commitment
or Survey disclose exceptions to title other than those Permitted Exceptions
which are noted on attached Exhibit C, then Purchaser shall have until 5:00 p.m.
(Chicago, Illinois time) on the tenth (10th) day after its receipt of the Survey
within which to notify Seller of any such exceptions to title to which Purchaser
objects. If any additional exceptions to title arise between the date of the
Title Commitment, the Survey and the Closing, Purchaser shall have five (5) days
after its receipt of notice of same within which to notify Seller of any such
exceptions to title to which Purchaser objects. Any such exceptions to title not
objected to by Purchaser as aforesaid shall become Permitted Exceptions. If
Purchaser objects to any such exceptions to title, Seller shall have until
Closing (but in any event at least fifteen (15) days after it receives notice of
Purchaser's objection(s)) to remove such exceptions to title by waiver or
endorsement by the Title Insurer. If Seller fails to remove any such exceptions
to title as aforesaid, Purchaser may, as its sole and exclusive remedy,
terminate this Agreement and obtain a return of the Earnest Money. If Purchaser
does not elect to terminate this Agreement, Purchaser shall consummate the
Closing and accept title to the Property subject to all such exceptions to title
(in which event, all such exceptions to title shall be deemed "Permitted
Exceptions"). Notwithstanding the foregoing, Seller shall be obligated to cure
to Purchaser's reasonable satisfaction: (i) any mortgages, deeds to secure debt
or related liens securing any financing obtained by Seller (including, without
limitation, those disclosed by the UCC Searches); and (ii) any other monetary
lien or security interest (but Seller shall not be obligated to expend more than
$10,000 in connection with this clause (ii)). Seller also agrees to remove or
cause to be removed any exceptions or encumbrances to title created by Seller
which arise after the effective date of the Title Commitment.
D. Reciprocal Easement Agreement. Purchaser's obligation to close
the transaction contemplated hereby is subject to the condition that Meridian
Associates Preferred Real Estate Limited Partnership (or its successor in
interest) certify in writing that: (i) that certain Reciprocal Easement
Agreement dated October 25, 1993 affecting the Property is unmodified and in
full force and effect; and (ii) that there are no existing set-offs or defenses
against the enforcement of such Reciprocal easement
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Agreement. Should Seller be unable to deliver such a certification by the
Closing Date, Purchaser shall have the same rights provided in Section 8(B)
hereof with respect to the delivery of the Required Estoppel Certificates.
4. CLOSING
A. Closing Date. The "Closing" of the transaction contemplated by
this 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 occur at 10:00 a.m. on September 15, 1997 (the "Closing
Date"), at the Chicago office of the Title Insurer, or at such other time and
place as Seller and Purchaser shall agree in writing. 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.
B. Closing Documents.
(i) Seller. At Closing, Seller shall execute and deliver to
Purchaser the following:
(a) a "Limited Warranty" Deed, subject to the Permitted
Exceptions, and in form acceptable to the Title Insurer;
(b) a "special" or "limited" warranty bill of sale
sufficient to transfer to Purchaser title to the Tangible Personal
Property and expressly disclaiming any warranties other than as to
title as aforesaid;
(c) a letter advising tenants under the Leases of the
change in ownership of the Property in the form attached hereto as
Exhibit D, and a similar letter advising providers of services under
the Service Contracts in the form attached hereto as Exhibit E;
(d) a counterpart of the Assignment and Assumption of
Leases, Service Contracts and Security Deposits, in the form attached
hereto as Exhibit F;
(e) 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;
(f) a counterpart of the closing statement ("Closing
Statement") setting forth the prorations and adjustments to the
Purchase Price as required by Section 4(C) below;
(g) a standard owner's affidavit to the Title Company in
form reasonably acceptable to Seller;
(h) evidence of termination of any third party property
management agreements;
(i) the Estoppel Certificates (as hereinafter defined); and
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(j) to the extent in Seller's possession or control, Seller
shall deliver to Purchaser or leave at the Property upon Closing: (i)
original Leases (including any New Leases which have been approved by
Purchaser) and lease files; (ii) original Service Contracts; (iii)
originals or copies of all licenses, warranties, certificates of
occupancy, permits, plans and specifications; and (iv) the originals
of any and all construction contracts with respect to ongoing
leasehold improvement work on the Property.
(ii) Purchaser. Purchaser shall execute and deliver or cause to
be delivered to Seller at Closing:
(a) the funds required pursuant to Section 2(B) above;
(b) a counterpart of the Assignment and Assumption Leases,
Service Contracts and Security Deposits, in the form attached hereto
as Exhibit F;
(d) a counterpart of the Closing Statement.
(iii) Other Closing Documents. Prior to the Closing Date,
Seller and Purchaser shall reasonably agree upon the form of all closing
documents not set forth as Exhibits hereto. If, after good faith negotiations,
Seller and Purchaser do not or cannot agree upon the form of all such closing
documents prior to the Closing Date, then either party may terminate this
Agreement by notice received by the other party prior to the Closing Date,
whereupon the Earnest Money shall be retained by Seller. If neither Seller nor
Purchaser terminates this Agreement as aforesaid, then Purchaser's or Seller's
failure to so terminate shall constitute its acceptance of the form of all
closing documents then most recently proposed by Seller.
C. Closing Prorations and Adjustments.
(i) The following items are to be prorated or adjusted (as
appropriate) as of the close of business on the Closing Date, it being
understood that for purposes of prorations and adjustments, Seller shall be
deemed the owner of the Property on such day and Purchaser shall be deemed the
owner of the Property as of the day after the Closing Date:
(a) real estate and personal property taxes and assessments
(on the basis of the most recent ascertainable tax bill if the current
bill is not then available);
(b) the "minimum" or "base" rent payable by tenants under
the Leases; provided, however, that rent and all other sums which are
due and payable to Seller by any tenant but uncollected as of the
Closing shall not be adjusted, but Purchaser shall cause the rent and
other sums for the period prior to Closing to be remitted to Seller
if, as and when collected. At Closing, Seller shall deliver to
Purchaser a schedule of all such past due but uncollected rent and
other sums owed by tenants. 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 bill submitted to tenants. Purchaser shall
promptly remit to Seller any such rent or other sums paid by scheduled
tenants, but only if a deficiency in the then current rent is not
thereby created. To the extent not set forth on said schedule,
percentage or overage rent and reimbursement of real estate taxes
payable, common area maintenance, mall maintenance, utility charges,
water and sewer charges, insurance and merchant's association dues and
assessments and all other
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charges to or contributions by tenants under the Leases shall be
prorated as follows: with respect to percentage rents, and upon
receipt by Purchaser, Purchaser shall furnish to Seller copies of all
sales reports from tenants relative thereto, including, without
limitation, all sales reports with respect to any tenants whose lease
years have expired as of the Closing but whose sales reports were not
available on Closing and sales reports of any tenants whose lease year
expires after the Closing, and the amount of any rents (including,
without limitation, percentage rents), reimbursement or contribution
to be made by any tenant shall be made in accordance with such
tenant's Lease as now existing and Purchaser shall promptly pay to
Seller a pro-rata portion of such rents, reimbursement or
contribution, based upon apportionment being made as of the Closing
Date, promptly after the date when such rents, reimbursement or
contribution is received from the tenant;
(c) Subject to the following sentence, with respect to
tenant improvement costs or leasing commissions relating to Leases, or
any modification, amendment, restatement or renewal thereto, executed
after the date hereof (referred to as a "New Lease"), Seller and
Purchaser agree that such costs and commissions shall be prorated over
the term of any New Lease with Seller being responsible for a portion
of such costs and commissions based on the ratio of base rent payments
received by Seller through the Closing Date to the total base rent
payable over the term of the particular New Lease (including, without
limitation, the New Lease to First Indiana Blimpie Venture
("Blimpie")).
(d) the amount of security deposits (and any interest
thereon) paid under the Leases;
(e) water, electric, telephone and all other utility and
fuel charges, fuel on hand (at cost plus sales tax), and any deposits
with utility companies (to the extent possible, utility prorations
will be handled by meter readings on the day immediately preceding the
Closing Date);
(f) amounts due and prepayments under the Service
Contracts;
(g) assignable license and permit fees; and
(h) other similar items of income and expenses of
operation.
(ii) Notwithstanding the foregoing, Seller shall in all events
be entitled to retain amounts paid by tenants (referred to herein as "Tenant
Reimbursements") for real estate taxes and assessments, and common area and
operating expenses (collectively, "Tenant Reimbursable Expenses") as of the
Closing to the extent not in excess of the actual amount of such Tenant
Reimbursable Expenses paid by Seller for the period prior to the Closing Date,
and following the Closing and upon Purchaser's completion of the reconciliation
of such amounts with tenants for 1997, then:
(x) in the event that the amount of Tenant Reimbursements
collected by Seller for 1997 is less than the amount of Tenant
Reimbursable Expenses paid by Seller with respect to 1997 and for
which Seller is entitled to recover under the terms of the Leases,
Purchaser shall: (1) to the extent such amounts have already been
collected by Purchaser from the tenants, promptly remit such amounts
to Seller but only if the applicable tenant is otherwise current in
the payment of all obligations due for the period following Closing;
and (2) to the extent such amounts have not yet been collected
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from tenants, Purchaser shall promptly bill the tenants for such
amounts and continue to bill such tenants for such amounts each month
for six (6) months thereafter, provide a copy of each such bill to
Seller, and, promptly upon receipt thereof, pay such amounts to
Seller; and
(y) in the event that the amount of Tenant Reimbursements
collected by Seller for 1997 exceeds the amount of Tenant Reimbursable
Expenses paid by Seller with respect to 1997 and for which Seller is
entitled to recover under the terms of the Leases, Seller shall remit
such excess amounts to Purchaser, provided, that: (1) Purchaser shall
be thereafter obligated to promptly remit the applicable portion to
the particular tenants entitled thereto; and (2) Purchaser shall
indemnify, defend and hold Seller, its beneficiaries, their partners,
and their respective directors, officers, employees and agents, and
each of them, harmless from and against any losses, claims, damages
and liabilities, including, without limitation, reasonable attorneys'
fees and expenses incurred in connection therewith, arising out of or
resulting from Purchaser's failure to remit any such amounts to
tenants in accordance with the provisions hereof.
(iv) Notwithstanding anything to the contrary contained in this
Section 4, Seller reserves the right: (i) to meet with governmental officials
and to contest any reassessment governing or affecting Seller's obligations
under Section 4(C)(i) above; and (ii) to contest any assessment of the Property
or any portion thereof 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; however, Seller agrees
to indemnify, defend and hold Purchaser harmless from and against any claims by
tenants under Leases that such tenants are entitled to a portion of any such
refunds of taxes.
(v) For purposes of this Section 4(C), the amount of any expense
credited by one party to the other shall be deemed an expense paid by that
party.
D. Transaction Costs. Seller shall pay for the cost of the Survey
up to a maximum amount of $1,750.00, and for the base premium of the owner's
title insurance policy. Purchaser shall pay for any cost of the Survey in excess
of $1,750.00, all transfer taxes, documentary stamps, deed recording charges,
any premiums for the owner's title insurance policy in excess of the base
premium (including, without limitation, the premium for extended coverage and
any endorsements thereto), and any lender's title insurance policy. Seller and
Purchaser shall each pay one-half (1/2) of all escrow fees, whether or not the
Closing occurs. Seller and Purchaser shall, however, be responsible for the fees
of their respective attorneys.
E. Possession. Upon Closing, Seller shall deliver to Purchaser
possession of the Property, subject to such matters as are permitted by or
pursuant to this Agreement.
5. CASUALTY LOSS AND CONDEMNATION.
A. If, prior to Closing, the Property or any part thereof shall be
destroyed or damaged by fire or other casualty, Seller shall promptly so notify
Purchaser. If the reasonably estimated cost to repair or restore the Property as
a result of such casualty exceeds Five Hundred Thousand Dollars ($500,000) (a
"Material Loss"), Purchaser shall have the option to terminate this Agreement by
giving notice to Seller within fifteen (15) days of Seller's request that the
option be exercised. If the destruction or damage does not result in a Material
Loss, or if Purchaser fails to terminate this Agreement following a Material
Loss as provided herein, then Seller and Purchaser shall consummate the
transaction contemplated by this Agreement notwithstanding such destruction or
damage. If the transaction contemplated by this Agreement
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is consummated, Purchaser shall be entitled to settle the loss under all
policies of insurance applicable to the destruction or damage and receive the
proceeds of insurance applicable thereto (but if Seller's insurer will not pay
full replacement cost, then Purchaser may terminate this Agreement), and Seller
shall, at Closing, allow Purchaser a credit against the Purchase Price in an
amount equal to any applicable deductibles and shall also execute and deliver to
Purchaser all customary proofs of loss, assignments of claims and other similar
items.
B. By notice to Seller given within 10 days after Purchaser receives
notice of proceedings in eminent domain that are instituted by any body having
the power of eminent domain with respect to the Property (and if necessary the
Closing Date shall be extended to give Purchaser the full 10 day period to make
such election), Purchaser may either: (i) terminate this Agreement, whereupon
the Earnest Money shall be returned to Purchaser; or (ii) proceed under this
Agreement, in which event Seller shall, at Closing, assign to Purchaser its
entire right, title and interest in and to any condemnation award.
Notwithstanding the foregoing, in the case of eminent domain proceedings which
do not materially affect the value or the operation of the Property, Purchaser
may only elect (ii) above. If Purchaser elects to terminate this Agreement as
provided above, the Earnest Money shall be returned to Purchaser, 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 as otherwise provided for in Section 9(C) below.
6. BROKERAGE. Seller agrees to pay upon Closing (but not otherwise) a
brokerage commission due to Podolsky & Associates and F.C. Tucker Company for
services rendered in connection with the sale and purchase of the Property.
Seller and Purchaser shall each indemnify and hold the other harmless from and
against any and all claims of all other brokers and finders 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,
attorneys' fees and expenses incurred by the indemnified party in connection
with such claim.
7. DEFAULT AND REMEDIES
A. Notwithstanding anything to the contrary contained in this
Agreement, if Seller fails to perform in accordance with the terms of this
Agreement, then, as Purchaser's sole and exclusive remedy hereunder and at
Purchaser's option, either: (i) the Earnest 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 (ii) upon
notice to Seller not less than thirty (30) days after Purchaser becomes aware of
such failure, and provided an action is filed within thirty (30) days
thereafter, Purchaser may seek specific performance of this Agreement, but not
damages. Purchaser's failure to seek specific performance as aforesaid shall
constitute its election to proceed under clause (i) above.
B. If Purchaser fails to perform in accordance with the terms of
this Agreement, the Earnest Money may be retained by Seller as liquidated
damages and as Seller's sole and exclusive remedy, other than those rights that
survive as provided in Section 9(C) below. If Purchaser is required to but does
not deliver to Seller the Additional Earnest Money as provided for in Section
2(A)(i) above, the sum of $100,000.00 shall nonetheless be recoverable by Seller
from Purchaser as Earnest Money. Purchaser and Seller acknowledge and agree
that: (1) the Earnest 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 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 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
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the amount of the Earnest Money in the event this Agreement is terminated and
the transaction contemplated by this Agreement does not close due to a default
of Purchaser under this Agreement; and (4) the Earnest Money shall be and
constitute valid liquidated damages.
C. After Closing, Seller and Purchaser shall, subject to the terms
and conditions of this Agreement, 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.
8. CONDITION PRECEDENT
A. Estoppel Certificates. As a condition to Purchaser's obligation
to close hereunder, Purchaser shall have received estoppel certificates
("Estoppel Certificates"), dated no more than thirty (30) days prior to Closing
(unless the Closing is extended at Purchaser's request), from tenants occupying
not less than seventy-five percent (75%) of the rentable space leased as of the
date of Closing pursuant to valid and existing Leases, and specifically
including with such percentage the following tenants: (i) Gardner and White;
(ii) David V. Poer, M.D., P.C.; (iii) Spinal Rehab; (iv) Gregory W. Chernoff,
M.D., P.C.; (v) Corneal Consultants; and (vi) The Otolaryngology Group; and in
the form and content as set forth herein (the aforesaid acceptable Estoppel
Certificates to be delivered are collectively referred to as the "Required
Estoppel Certificates"). The Estoppel Certificates shall be in the form of
Exhibit H attached hereto (the "Form Tenant Estoppel Certificate"). The Estoppel
Certificates executed by tenants shall be in substantially the form of the Form
Tenant Estoppel Certificate, except that: (i) an Estoppel Certificate executed
by a tenant shall be deemed an acceptable Estoppel Certificate for purposes of
this Section 8(B) even if the tenant refuses to certify said estoppel to
Purchaser's lender; and (ii) an Estoppel Certificate shall be deemed an
acceptable Estoppel Certificate for purposes of this Section 8(B) if 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. Seller shall make a
good faith effort to obtain the Required Estoppel Certificates, including
follow-up visits. In the event that Seller is unable to provide to Purchaser the
Required Estoppel Certificates on or before Closing, Purchaser may either: (i)
elect not to purchase the Property, in which event the Earnest Money shall be
returned to Purchaser, at which time this Agreement shall be null and void and
neither party shall have any further rights or obligations under this Agreement,
except for the indemnity obligations set forth in Sections 6 and 10(G) hereof
which shall survive termination; or (ii) elect to purchase the Property
notwithstanding Seller's inability to provide the Required Estoppel
Certificates, in which event Purchaser shall be deemed to have waived the
condition contained in this Section 8(B). Seller agrees to deliver the Estoppel
Certificates to tenants with three (3) business days after Seller's receipt of
the Additional Earnest Money.
B. Accuracy of Seller's Representations and Warranties. As a
condition to the obligations of Purchaser to close hereunder, each of Seller's
representations and warranties set forth in Section 9 below shall be true and
correct as of the Closing, as modified by any "Pre-Closing Disclosures" (as
defined in Section 9(B) below). Notwithstanding the foregoing, if Seller makes
any Pre-Closing Disclosure to Purchaser, Purchaser shall have the right to
terminate this Agreement and receive the return of the Earnest Money by
delivering written notice thereof to Seller on or before the earlier of: (i) the
Closing; or (ii) 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 and warranties shall be deemed modified to conform them to the
Pre-Closing Disclosure.
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9. REPRESENTATIONS, WARRANTIES AND COVENANTS
A. Subject to Section 9(C) below, Seller represents and warrants to
Purchaser that, as of the date of this Agreement:
(i) Title to Real Property. Seller holds fee simple title to
the Real Property.
(ii) Organization; Authority. Seller is a limited partnership
duly organized and in good standing under the laws of the State of Illinois.
Seller has the power and authority under: (i) Seller's limited partnership
agreement; and (ii) the articles of incorporation and by-laws of Seller's
general partner (the instruments described in (i) and (ii) above being referred
to as "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.
(iii) No Breach. The execution and delivery of this Agreement,
the consummation of the transactions provided for 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 Seller's Organizational
Documents.
(iv) Condemnation. Seller has not received from any
governmental authority any written notice of any condemnation of the Property or
any part thereof.
(v) Litigation. Except as set forth on Exhibit I attached
hereto, Seller has not been served with any material litigation which is still
pending against Seller with respect to its ownership or operation of the
Property.
(vi) As of the date of this Agreement, to the "Actual Knowledge
of Seller" (as hereinafter defined), except as set forth on Exhibit J attached
hereto, Seller has received no written notice from any governmental authority of
any material violation of any state or federal law, rule or regulation
concerning the Property or any part thereof which has not been cured prior to
the date of this Agreement, but Seller makes no representation or warranty with
respect to the information or matters disclosed in the documentation described
in Section 8(A) or with respect to the Property's compliance with the American
with Disabilities Act.
(vii) The list attached hereto as Exhibit K lists all of the
Service Contracts as of the date of this Agreement, the service provided
thereunder, the vendor under each Service Contract and, if such Service Contract
is written, the date of such Service Contract.
(viii) To the actual knowledge of Seller and with the exception
of any leasing commissions owned in connection with any New Leases executed
after the date of this Agreement, all leasing commissions due and payable prior
to the Closing Date in connection with any of the Leases have been or will be
paid by Seller.
(ix) Exhibit L hereto is a true and correct schedule of all
tenants at the Property under Leases, together with a brief description of their
respective suite numbers, the number of square feet occupied, monthly base rent
currently payable, the base year upon which Operating Expense Reimbursements are
calculated, security deposits held and lease expiration date. Except as shown on
Exhibit L or for New Leases permitted by the terms of this Agreement, there are
no other leases or rights of occupancy affecting the Property. Except as shown
on Exhibit L, to the Actual Knowledge of Seller, no tenant has delivered written
notice that Seller is in default under any Leases. To the extent that any tenant
10
returns an Estoppel Certificate as provided in Section 8 above, this
representation and warranty, as it relates to such Tenant, shall immediately
expire.
B. 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 knowledge of Alissa Schneider, Director - Dispositions of
Equity Office Properties Management Corp., after having made due inquiry to
Craig Cleveland, the on-site property manager. Notwithstanding anything herein
to the contrary, Alissa Schneider shall have no personal liability or liability
whatsoever with respect to any matters set forth in this Agreement or any of
Seller's representations and/or warranties herein being or becoming untrue,
inaccurate or incomplete in any respect (it being understood that, subject to
the provisions of this Agreement, Seller's liability under this Agreement is not
limited by the limitation on personal liability of such individual).
C. As of Closing, Seller shall be deemed to remake and restate the
representations set forth in Sections 9(A)(ii) through (iv) except that the
representations shall be updated by delivering written notice to Purchaser in
order to reflect any fact, matter or circumstance which Seller's Chicago,
Illinois representatives become aware of that would make any of Seller's
representations or warranties contained herein untrue or incorrect (any such
disclosure being referred to as a "Pre-Closing Disclosure"). Notwithstanding
the foregoing, the obligation to update the representations and warranties as
provided herein shall not relieve Seller from liability (if any) under any other
provision of this Agreement.
D. The representation and warranty set forth in Section 9(A)(i)
shall not survive the Closing. The representations and warranties set forth in
Section 9(A)(ii) through Section 9(A)(ix), subject to modifications thereto as a
result of any Pre-Closing Disclosure, shall survive the Closing, but only for a
period of six (6) months thereafter, and not otherwise. Except as provided for
in Sections 4(C)(iv), 6, 10(G), and this Section 9(C), the obligations of the
parties under this Agreement shall not survive the Closing or any termination of
this Agreement. "Survival" means that Purchaser must give written notice of any
claim against Seller within such six (6) month period.
E. Seller hereby covenants and agrees with Purchaser that:
(i) Purchaser acknowledges that, prior to the date hereof,
Seller entered into a New Lease (as defined above) with Blimpie. From and after
the date hereof, Seller covenants and agrees not to enter into any New Lease or
new Service Contract, or any modification, amendment, restatement or renewal of
any existing Service Contracts (collectively, "New Agreements") without
Purchaser's prior written consent, which will not be unreasonably withheld or
delayed. If Purchaser does not respond in writing to Seller's request for
approval or disapproval of a New Agreement within five (5) days after
Purchaser's receipt of Seller's request, which shall be accompanied by all
material written information regarding the proposed New Agreement in Seller's
possession, Purchaser shall be conclusively deemed to have approved of such New
Agreement.
(ii) Seller will continue to manage, operate and maintain the
Property in the ordinary course of its business and in substantially its present
condition (but Seller shall not be obligated to make any capital improvements or
capital repairs).
F. Purchaser represents and warrants that, prior to the date hereof,
Purchaser has been given an opportunity to review copies of (i) the Leases, (ii)
real estate tax statements with respect to the Property, (iii) sewer and water
bills with respect to the Property, (iv) the Service Contracts, (v) bills for
electricity and for fuel used to operate the heating and air conditioning
systems controlled by Seller at the Property covering the previous twelve (12)
months, (vi) correspondence between tenants and Seller
11
(as landlord), (except for any of such items that contain privileged
information), (vii) billings to tenants for Tenant Reimbursables and invoices
for Tenant Reimbursable Expenses, (viii) any plans for the buildings located on
the Property, (ix) any licenses or permits issued to Seller in connection with
the ownership and operation of the Property, (x) a current rent roll, (xi) an
inventory of Tangible Personal Property, (xii) existing environmental reports, a
list of which is attached hereto as Exhibit G, (xiii) a list of site staff and
their salaries, all to the extent in Seller's possession; and (xiv) current
operating statement.
10. MISCELLANEOUS
A. All understandings and agreements heretofore had between Seller
and Purchaser with respect to the Property are merged in this Agreement, which
alone fully and completely expresses the agreement of the parties. Purchaser
acknowledges that it has inspected the Property and, except as otherwise
expressly set forth herein, that it accepts same in its "as is" condition
subject to use, ordinary wear and tear and natural deterioration. Purchaser
further acknowledges that, except as expressly provided in this Agreement or in
any closing document, 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.
B. Neither this Agreement nor any interest hereunder shall be
assigned or transferred by Purchaser, except to an entity which is owned and
controlled by Purchaser. Seller may assign or otherwise transfer its interest
under this Agreement. As used in this Agreement, the term "Seller" and
"Purchaser" shall be deemed to include any permitted assignee or other
transferee of any Seller or Purchaser, as the case may be. Upon any such
transfer by a Seller or Purchaser, such original Seller or Purchaser, as the
case may be, shall remain liable for the obligations of Seller or Purchaser, as
the case may be, 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.
C. This Agreement shall not be modified or amended except in a
written document signed by Seller and Purchaser.
D. Time is of the essence of this Agreement.
E. This Agreement shall be governed and interpreted in accordance
with the laws of the State of Indiana.
F. All notices, requests, demands or other communications required
or permitted under this Agreement shall be in writing and delivered personally,
by certified mail, return receipt requested, postage prepaid, by overnight
courier (such as Federal Express), or by facsimile transmission (with a copy to
follow by either overnight courier or certified mail, return receipt requested,
postage prepaid), addressed as follows:
If to Seller: c/o Equity Office Properties Management Corp.
Two North Riverside Plaza, Suite 2200
Chicago, Illinois 60606
Attention: Alissa Schneider
Telephone: 312/466-3595
Facsimile: 312/559-5051
12
With a copy to: Rosenberg & Liebentritt, P.C.
Two North Riverside Plaza, Suite 1600
Chicago, Illinois 60606
Attention: John P. Starkweather
Telephone: 312/466-3959
Facsimile: 312/454-0335
If to Purchaser: Golub & Company of Illinois, Inc.
625 North Michigan Avenue
Chicago, Illinois 60611-3110
Attention: Michael Newman
Telephone: 312/440-8800
Facsimile: 312/440-0809
With a copy to: Rudnick & Wolfe
203 North LaSalle Street, Suite 1800
Chicago, Illinois 60606
Attention: David Glickstein
Telephone: 312/368-7270
Facsimile: 312/236-7016
All notices given in accordance with the terms hereof shall be deemed received
forty-eight (48) hours after posting, or when delivered personally or otherwise
received. 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).
G. Purchaser's right of inspection 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 inspection shall be undertaken without reasonable
prior notice to Seller. Seller shall have the right to be present at any or all
inspections. Neither Purchaser nor its agents or representatives shall contact
any tenants without the prior consent of Seller. No inspection shall involve the
taking of samples or other physically invasive procedures without the prior
consent of Seller. 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, attorneys' fees incurred
in connection therewith) arising out of or resulting from Purchaser's exercise
of its rights under this Agreement, including, without limitation, its right of
inspection as provided for in Section 8(A) above.
H. ACKNOWLEDGING THE PRIOR USE OF THE PROPERTY AND PURCHASER'S
OPPORTUNITY TO INSPECT THE PROPERTY, EXCEPT AS OTHERWISE EXPRESSLY SET FORTH
HEREIN, PURCHASER AGREES TO TAKE THE PROPERTY "AS IS," WITH ALL FAULTS AND
CONDITIONS THEREON. ANY INFORMATION, REPORTS, STATEMENTS, DOCUMENTS OR RECORDS
("DISCLOSURES") PROVIDED OR MADE TO PURCHASER OR ITS CONSTITUENTS BY SELLER, ITS
AGENTS OR EMPLOYEES CONCERNING THE ENVIRONMENTAL CONDITION OF THE PROPERTY SHALL
NOT BE REPRESENTATIONS OR WARRANTIES. 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 OTHERWISE EXPRESSLY
SET FORTH HEREIN, SELLER HAS NOT MADE, DOES NOT MAKE AND SPECIFICALLY DISCLAIMS
ANY REPRESENTATIONS, WARRANTIES, PROMISES, COVENANTS, AGREEMENTS OR GUARANTIES
OF ANY KIND OR CHARACTER WHATSOEVER, WHETHER EXPRESS OR
13
IMPLIED, ORAL OR WRITTEN, PAST, PRESENT OR FUTURE, OF, AS TO, CONCERNING OR WITH
RESPECT TO: (i) THE NATURE, QUALITY OR CONDITION OF THE PROPERTY, INCLUDING,
WITHOUT LIMITATION, THE WATER, SOIL AND GEOLOGY; (ii) THE INCOME TO BE DERIVED
FROM THE PROPERTY; (iii) THE SUITABILITY OF THE PROPERTY FOR ANY AND ALL
ACTIVITIES AND USES WHICH PURCHASER MAY CONDUCT THEREON; (iv) THE COMPLIANCE OF
OR BY THE PROPERTY OR ITS OPERATION WITH ANY LAWS, RULES, ORDINANCES OR
REGULATIONS OF ANY APPLICABLE GOVERNMENTAL AUTHORITY OR BODY; (v) THE
HABITABILITY, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OF THE
PROPERTY; OR (vi) ANY OTHER MATTER WITH RESPECT TO THE PROPERTY, AND
SPECIFICALLY DISCLAIMS 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 FOR CONTRIBUTION OR OTHER ACTION OR CLAIM AGAINST SELLER OR ITS
AFFILIATES, DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, ATTORNEYS, OR ASSIGNS
(COLLECTIVELY, "SELLER AND ITS AFFILIATES") BASED ON: (i) 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; (ii)
ANY DISCHARGE, DISPOSAL, RELEASE, OR ESCAPE OF ANY CHEMICAL, OR ANY MATERIAL
WHATSOEVER, ON, AT, TO, OR FROM THE PROPERTY; OR (iii) ANY ENVIRONMENTAL
CONDITIONS WHATSOEVER ON, UNDER, OR IN THE VICINITY OF THE PROPERTY.
I. In any lawsuit or other proceeding initiated by Purchaser under
or with respect to this Agreement, Purchaser waives any right it may have to
trial by jury. In addition, Purchaser waives any right to seek rescission of the
transaction provided for in this Agreement.
J. Except as may be required by law, without the prior written
consent of Seller, and unless the Closing occurs, Purchaser shall not disclose
to any third party (other than Purchaser's attorneys, mortgage bankers, lenders,
prospective investors and professional consultants performing due diligence) the
existence of this Agreement or any term or condition thereof or the results of
any inspections or studies undertaken in connection herewith.
K. If for any reason Purchaser does not consummate the Closing, then
Purchaser shall, upon Seller's request, assign and transfer to Seller all of its
right, title and interest in and to 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,
and shall deliver to Seller copies of all of the foregoing.
L. Seller and Purchaser hereby designate the Escrow Agent 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 Escrow Agent to
execute at Closing, a Designation Agreement, designating Escrow Agent as the
reporting person with respect to the transaction contemplated by this Agreement.
14
[the rest of this page is intentionally left blank-signature page follows]
15
IN WITNESS WHEREOF, Seller and Purchaser have executed and delivered this
Agreement as of the date first above written.
SELLER: FIRST CAPITAL INSURED REAL ESTATE LIMITED PARTNERSHIP,
an Illinois limited partnership
By: First Capital Financial Corporation, a Florida corporation,
its general partner
By:
-------------------------------------------------------
Name:
-----------------------------------------------------
Title:
----------------------------------------------------
PURCHASER: GOLUB & COMPANY OF ILLINOIS, INC., an Illinois corporation
By:
------------------------------------------------------------
Name:
----------------------------------------------------------
Title:
---------------------------------------------------------
EXHIBITS:
- --------
A Legal Description
B Tangible Personal Property
C Permitted Exceptions
D Notice to Tenants
E Notice to Parties to Service Contracts
F Assignment and Assumption of Leases, Service Contracts and Security Deposits
G List of Environmental Reports
H Form of Estoppel Certificate
I Litigation
J Written Notices of Violations of Law
K List of Service Contracts
L List of Tenants
16
EXHIBIT A
LEGAL DESCRIPTION
-----------------
See attached two (2) pages.
1
EXHIBIT B
TANGIBLE PERSONAL PROPERTY
--------------------------
Storage Room Items: Break Room Items:
1. 5 shelf steel storage rack (1) 1. Round Table
2. white cabinet 2. Chairs (4)
3. 4 shelf bookcase (1)
Maintenance Area Items:
Manager's Office Items:
1. Black Table
2. Chairs (4) 1. 4 Drawer Black File Cabinet (1)
3. Desk 2. Wood Cabinet with drawers and shelves
4. Gray Table 3. Desk
5. Work Table/6 drawers 4. Chairs (3)
6. Storage cabinet
7. 5 shelf steel storage Fitness Center Equipment:
racks (2)
1. David 300 Pec Deck
Reception Area Items: 2. David 300 Leg Curl
3. David 300 Leg Extension
1. Chairs (3) 4. David 300 Abdominal
2. Desk 5. David 300 Arm Curl
3. Fax Machine 6. David 300 Rotary Deltoid
4. Fax Machine Holder 7. David 300 Chest Press
5. Typewriter
6. Typewriter Table
7. 2 Drawer Filing Cabinet
Additional Inventory:
Quantity Item Description
- -------- ---- -----------
1 Refrigerant recovery unit Thermal Engineering/Model 7500
2 Recovery tank 50 lbs. tank/Model 8050
1 Recovery tank 25 lbs. tank/Model 8025
1 Vacuum pump J/B Industries/Model DV-142
1 Halogen leak detector TIF Instruments/Model 5600
1 Amprobe
1 Fluke volt/ohm meter Series 21
1 Wet/dry shop vac 1.25 peak hp/5 gallon/Model 86720-07
1 Gas can 1 gallon
1 Two-wheel dolly Dayton/Model 2W179A
1 Fiberglas ladder 4 foot
1 Fiberglas ladder 6 foot
1
Additional Inventory (cont.):
Quantity Item Description
- -------- ---- -----------
1 Aluminum ladder 6 foot
1 Aluminum ladder 8 foot
1 Snow blower Toro/5 hp/Model 38052
1 Parking lot sweeper Billy Goat/5 hp/Model KD501T
2 Snow shovels Ames
1 Vacuum sweeper Hoover Elite 400
1 Fire safe storage container Justrite/Model 25995
1 Air can with coil hose and gauge
1 Oxyacetylene Torch set Turbo tole
1 Wheelbarrow
1 Rake Steel
1 Shovel
2 Garden shovels small
2 Channel locks
3 Crescent wrenches
1 Makita drill Cordless
1 Caulking gun
1 Dry wall mud trowel
1 Torpedo level
1 Tape measure Stanley/25 foot
1 Combination square
1 Faucet supply line wrench
1 Claw hammer
2 Screwdrivers 4-way
1 Drop light
2 Extension cords 50 foot
1 Salt spreader Cyclone/Model CB3000
1ea. Nut drivers 1/4 inch; 5/16 inch; 3/8 inch; 1/2 inch
1 Rivet gun
2 Drill bit sets 12 piece
2 Plungers
2 Flashlights 2 D-cel
1 Screw extractor set
1 J/B Manifold gauge set
1 Refrigerant wrench
1 Needle nose pliers
1 Slip joint pliers
2 Screwdrivers Stanley/6 inch
1 Janitor cart Rubbermaid cart with bag
3 Motorola Radio Radius P50
3 Motorola Radio chargers
1 Box end wrenches 3/8 through 3/4 inch
2
Additional Inventory:
Quantity Item Description
- -------- ---- -----------
1 Arrow T-50 stapler
1 Utility knife Stanley 10-099
1 Breakover bar and 3/4 inch socket
1 Fish tape Streamline
1 Pry bar Project Master
1 Pipe wrench 14 inch
1 Key cutter machine Speedex/Model 9120RM
1 Hack saw
1 PVC cutter
1 Straight line chalk line reel
1 Wire stripper
1 Wallpaper roller 1 inch
1 Dry wall saw
1 Wire brush
1 Wallpaper brush
1 Hand plane
1 Allen wrench set Bondhus BLX 12
2 Flat files
1 Bit set for cordless drill Phillips, nut drivers, file tips, etc.
4 Safety orange traffic cones
1 Restroom "Out of Service" sign
1 Parking lot striper
1 Parking lot stencil Visitors/Fire Lane/HC wheelchair symbol
1 Decorated Christmas wreath
2 Paint pans
3 Paint rollers 9 inch
1 Paint brush 2 inch
1 Hand pump portable sprayer
1 Garden hose 50 foot
1 Floor broom Large
1 Floor broom Small
1 Broom/dust pan set Small (for day porter)
2 Trash recept. w/removable metal can Rubbermaid/33 gal/red pebble/black finish
6 Trash/Ash can receptacle Stainless steel/removable metal cans
1 Trash can with lid Tucker/33 gallon
1 Alnor Balometer
1 Rubbermaid Hokie Model 4213
Building Artwork Various
3
EXHIBIT C
PERMITTED EXCEPTIONS
--------------------
1. Acts of Purchaser, and those claiming by, through and under Purchaser.
2. General and special taxes and assessments not yet delinquent.
3. Rights of tenants, as tenants only, under the Leases, and those claiming
by, through and under said tenants.
4. Zoning, building and other governmental and quasi-governmental laws, codes
and regulations.
5. Those matters set forth as General Exceptions 1 through 5, and Special
Exceptions 1 through 12, 15 and 16 on Schedule B of that certain American
Land Title Association Commitment, number 256-634CI, effectively dated June
9, 1997, showing Purchaser as the proposed insured (the "Commitment").
1
EXHIBIT D
NOTICE TO TENANTS
-----------------
___________, 1997
Re: Sale of Lakeview Office Park II and III
Marion County, Indiana (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 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:
_______________________________________________________________.
Very truly yours,
Equity Office Properties Management Corp.
a Delaware corporation,
as agent for Seller
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
1
EXHIBIT E
NOTICE TO PARTIES TO SERVICE CONTRACTS
--------------------------------------
______________, 1997
Re: Sale of Lakeview Office Park II and III
Marion County, Indiana (the "Property")
Dear Service Provider:
This is to notify you that the Property has been sold to
______________________________ ("Purchaser"). Purchaser has assumed all of the
obligations of the undersigned under the service contracts as of 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 service contract.
Very truly yours,
Equity Office Properties Management Corp.
a Delaware corporation,
as agent for Seller
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
1
EXHIBIT F
ASSIGNMENT AND ASSUMPTION OF LEASES, SERVICES CONTRACTS
-------------------------------------------------------
AND SECURITY DEPOSITS
---------------------
For valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, FIRST CAPITAL INSURED REAL ESTATE LIMITED PARTNERSHIP, an Illinois
limited partnership ("Assignor") hereby assigns to ____________________________
("Assignee") with an office and place of business at 625 North Michigan Avenue,
Chicago, Illinois, all of Assignor's right, title and interest as of the date
hereof in and to: (1) the leases ("Leases") and security deposits ("Security
Deposits") described in Exhibit B attached hereto relating to certain real
property known as Lakeview Office Park II and III located in Marion County,
Indiana, and more particularly described in Exhibit A attached hereto (the
"Land"); (2) the service contracts set forth on Exhibit C attached hereto
("Service Contracts"); and (3) to the extent assignable, licenses, permits,
certificates, warranties, guarantees and all other intangible rights appurtenant
to the Land or improvements therein (including, but not limited to the right to
use the trade name "Lakeview Office Park II and III", if any) and telephone
numbers and listing which are owned by Assignor and used exclusively by Assignor
in connection with the ownership and operation of the Land or the improvements
located thereon.
Assignee hereby accepts such assignment and hereby assumes and agree to be
bound by and to perform, the Assignor's obligations, covenants and agreements
arising after the date hereof under each of the Leases and Service Contracts,
and Assignee further assumes all liability of Assignor for the proper refund or
return of the Security Deposits either credited or otherwise transferred to
Purchaser at Closing, if, when, and as required by the terms of the Leases or
otherwise by law. In addition, Assignee agrees to pay all brokerage fees and
leasing commissions payable from and after the date hereof in connection with
any of the Leases, including any fees or commissions payable upon the renewal or
extension of any of the Leases, subject, however, to Section 9(A)(viii) of the
Purchase and Sale Agreement between Assignor and Assignee dated
________________, 1997..
This Assignment and Assumption may be executed and delivered in any number
of counterparts, each of which so executed and delivered shall be deemed to be
an original and all of which shall constitute one and the same instrument.
1
IN WITNESS WHEREOF, Assignor and Assignee have executed this Assignment and
Assumption effective as of this ____ day of ____________, 1997.
ASSIGNOR: FIRST CAPITAL INSURED REAL ESTATE LIMITED PARTNERSHIP,
an Illinois limited partnership
By: First Capital Financial Corporation, a Florida corporation,
its general partner
By:
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
ASSIGNEE: ______________________________
By:
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
2
EXHIBIT G
LIST OF ENVIRONMENTAL REPORTS
-----------------------------
1. Phase I Environmental Survey dated March 20, 1989, prepared by PEI
Associates.
2. Indoor Air Quality Assessment for 8902 N. Meridian
3. Agreement for certain work that was done pursuant to the recommendations of
the assessment described in item 2 above.
1
EXHIBIT H
FORM TENANT ESTOPPEL CERTIFICATE
--------------------------------
FIRST CAPITAL INSURED REAL ESTATE
LIMITED PARTNERSHIP
c/o Equity Office Properties Management Corp.
Two North Riverside Plaza, Suite 2200
Chicago, Illinois 60606
Attention: Alissa Schneider
______________________________
625 North Michigan Avenue
Chicago, Illinois 60611
Attention: Michael Goldman
[GOLUB MORTGAGEE]
______________________________
______________________________
Attention: __________________
Ladies and Gentlemen:
At the request of FIRST CAPITAL INSURED REAL ESTATE LIMITED
PARTNERSHIP, an Illinois limited partnership ("Landlord"), made in connection
with the proposed sale of Lakeview Office Park II and III, Marion County,
Indiana (the "Property") and Landlord's interest in the "Lease" (as hereinafter
defined) to ______________________________ ("Purchaser"), the undersigned hereby
certifies to Landlord, Purchaser and [Lender] as follows:
1. The undersigned is the tenant under a lease with Landlord, dated
__________, 19___, [as amended by _________________, dated __________, 19___
(collectively, the "Lease")][(the "Lease")], a true, correct and complete copy
of which is attached hereto, for suite(s) _______ on the ________ floor(s) at
the Property (the "Premises").
2. The Lease sets forth the entire agreement between Landlord and the
undersigned with respect to the Premises, is in full force and effect and has
not been amended, modified or extended.
3. The monthly [base][minimum] rent of $________ due under the Lease
has been paid through _______, 1997 and all additional rent (consisting of
$_________ per month for estimated operating expenses and estimated real estate
taxes) due under the Lease has been paid through ______________, 1997.
4. The Landlord is not in default under the Lease.
5. The expiration date of the Lease is ____________________, 19___.
6. The amount of the security deposit currently held by Landlord
under the Lease is $ _______________.
7. There is no prepaid rent, except $ _____________.
1
8. The undersigned has not assigned any of its interest in the Lease
or subleased all or any portion of the Premises, except as follows:
_____________________________.
9. The undersigned has no defenses, counterclaims, set-offs or
concessions against rent or charges due or to become due under the Lease.
10. The undersigned has unconditionally accepted the Premises and
[has commenced payment of full rent] [or] [is entitled to _____ month's
abatement of base rent, as of the date hereof] under the Lease and is the owner
and holder of the entire tenant's interest in the Lease.
11. 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 the undersigned.
12. The "base year" for operating expense reimbursements and real
estate taxes under the Lease is 19___.
13. The undersigned has no right or option pursuant to the Lease or
otherwise to purchase all or any part of the Premises or the Property.
14. This Tenant Estoppel Certificate (this "Certificate") shall inure
to the benefit of Landlord, Purchaser and Lender, and their successors and
assigns.
15. If we are a corporation, the undersigned is a duly appointed
officer of the corporation signing this Certificate and is the incumbent in the
office indicated under this Certificate and is the incumbent in the office
indicated under his or her name. In any event, the undersigned is duly
authorized to execute this Certificate.
Very truly yours,
______________________, Tenant
By:___________________________
Name:_________________________
Title:________________________
Date:___________________, 1997
2
EXHIBIT I
LITIGATION
----------
[forthcoming]
1
EXHIBIT J
WRITTEN NOTICES OF VIOLATIONS OF LAWS
-------------------------------------
[forthcoming]
1
EXHIBIT K
LIST OF SERVICE CONTRACTS
-------------------------
Vendor Name Type of Service Date
- ----------- ------------------ -----
American Business Machines, Inc. Copier Maintenance 3/12/97
ARAB Termite & Pest Control, Inc. Pest Control 8/7/96
Aramark Uniform Services, Inc. Uniforms 5/1/97
Carpet Maintenance Systems, Inc. Carpet Cleaning 8/7/96
Central Security and Communications Monitor Sprinklers 5/1/97
Eagle/Trident Security Assoc., LLC Security 8/7/96
Engledow, Inc. Indoor Landscaping 5/1/97
Engledow, Inc. Outdoor Landscaping 3/1/97
GSF Safeway, Inc. Janitorial 1/1/97
Hoosier State Window Cleaning Window Cleaning 8/7/96
Mid America Elevator Company, Inc. Elevator Maintenance 9/4/96
Millard Metal Maintenance Co. Metal Maintenance 3/1/96
MobileComm Pager Rental 11/20/89
Ray's Trash Service, Inc. Trash Collection 8/7/96
Rhoton General Contractors, Inc. Snow Plowing 10/21/96
Other
- -----
Concrete Jungle License Agreement 9/30/93
Modern Vending Vending 8/20/92
1
EXHIBIT L
LIST OF TENANTS
---------------
LAKEVIEW OFFICE PARK II
-----------------------
Monthly Base Rent Base Year Security
Suite No. Tenant Name Square Feet Exp. Date as of 7/1/97 Or Stop Deposit
- ----------------------------------------------------------------------------------------------------------------------
130 Corneal Consultants 1,503 5/31/05 1,753.50 1994
- ----------------------------------------------------------------------------------------------------------------------
237 Davis, Dr. Marianne 1,749 2/29/00 2,113.38 1995
- ----------------------------------------------------------------------------------------------------------------------
202 Gardner and White 35,335 10/18/06 40,488.02 1996
- ----------------------------------------------------------------------------------------------------------------------
100 Holbreich, Dr. Mark 2,594 2/28/99 3,862.90 1993
- ----------------------------------------------------------------------------------------------------------------------
236 Kelly Assisted Living Services 1,284 7/31/99 1,422.67 1994
- ----------------------------------------------------------------------------------------------------------------------
240 Mentendiek, Dr. Mary Ann 1,613 9/30/00 1,881.83 1993
- ----------------------------------------------------------------------------------------------------------------------
140 Pediatric Neurology, P.C. 1,962 9/30/97 2,329.88 1994 2,248.13
- ----------------------------------------------------------------------------------------------------------------------
139 Peet and Peet, Drs. 2,202 1/31/02 2,844.25 1996
- ----------------------------------------------------------------------------------------------------------------------
120 Poer, David V. M.D., P.C. 5,763 2/28/01 7,323.81 1996 7,203.75
- ----------------------------------------------------------------------------------------------------------------------
101 Spinal Rehab 14,644 8/31/01 18,779.23 1995/1996 7,956.76
- ----------------------------------------------------------------------------------------------------------------------
103 St. Vincent Hospital 4,341 4/30/01 5,878.44 1996
- ----------------------------------------------------------------------------------------------------------------------
137 Stoner, Dr. Robert A. 2,363 1/31/02 3,416.50 1995
- ----------------------------------------------------------------------------------------------------------------------
135 United States Gypsum 851 7/31/01 1,077.93 1996
- ----------------------------------------------------------------------------------------------------------------------
138 Van Winkle, Kurt, Dr. 1,432 7/31/99 1,670.67 $5.00 1,611.00
- ----------------------------------------------------------------------------------------------------------------------
1
LAKEVIEW OFFICE PARK III
------------------------
Monthly Base Rent Base Year Security
Suite No. Tenant Name Square Feet Exp. Date as of 7/1/97 Or Stop Deposit
============================================================================================================
108 Alvis & Kane, Drs. 3,562 5/31/98 4,156.29 $3.50
- ------------------------------------------------------------------------------------------------------------
205 Chermoff W. Gregory M.D., P.C. 9,260 10/31/06 13,118.33 1996 13,118.33
- ------------------------------------------------------------------------------------------------------------
115 Cityside Financial Services 913 7/31/98 1,065.17 1994
- ------------------------------------------------------------------------------------------------------------
112 Clark, Drs. Greg and Anne 2,735 9/30/98 3,190.83 $3.50
- ------------------------------------------------------------------------------------------------------------
100 Corneal Consultants 13,342 5/31/05 15,565.67 1994
- ------------------------------------------------------------------------------------------------------------
107 Countryman, Dr. Phillip A. 2,696 3/31/00 3,594.66 1995
- ------------------------------------------------------------------------------------------------------------
200 Developmental Associates 2,621 10/31/97 3,003.23 1994 3,003.23
- ------------------------------------------------------------------------------------------------------------
L24 First Indiana Blimpie Venture 568 9/30/02 0.00 N/A
- ------------------------------------------------------------------------------------------------------------
204 Hearing Lab, Inc. 4,221 2/28/99 4,572.75 1994
- ------------------------------------------------------------------------------------------------------------
113 Helms, Dr. Michael 1,430 3/31/00 1,847.08 1995
- ------------------------------------------------------------------------------------------------------------
114 Horton, Dr. Douglas J. 1,175 6/14/99 1,395.31 $3.50
- ------------------------------------------------------------------------------------------------------------
L22 I Care Center LLC 5,530 5/31/05 10,000.09 1994
- ------------------------------------------------------------------------------------------------------------
109 Indiana Eye Assoc. 1,138 5/31/98 1,328.23 $3.50
- ------------------------------------------------------------------------------------------------------------
110 IU Health Care 4,119 12/31/97 4,956.53 $3.50
- ------------------------------------------------------------------------------------------------------------
102 Landaw, Dr. David C. 1,643 5/31/98 1,917.42 $3.50
- ------------------------------------------------------------------------------------------------------------
106 Meridian Ophthalmology 3,203 5/31/98 3,736.83 $3.50
- ------------------------------------------------------------------------------------------------------------
106A Mitchelson, John Dr. 55 5/31/98 69.23 N/A
- ------------------------------------------------------------------------------------------------------------
213/214/216 Otolaryngology Group, The 8,705 1/31/00 9,756.86 1993 11,826.59
- ------------------------------------------------------------------------------------------------------------
101 Professional Dispensers 1,935 5/31/98 2,258.08 $3.50
- ------------------------------------------------------------------------------------------------------------
222 Ryan, Phillip J.A., M.D. 5,147 5/31/01 7,184.35 1996 10,806.59
- ------------------------------------------------------------------------------------------------------------
210 Shear Steven J. DDS 1,611 11/30/01 2,148.00 1996
- ------------------------------------------------------------------------------------------------------------
107A Sportscan Inc. 1,525 10/31/99 2,128.65 1995 2,128.65
- ------------------------------------------------------------------------------------------------------------
201 Steffel, Dr. Charles L. 1,896 12/31/97 2,291.00 1995
- ------------------------------------------------------------------------------------------------------------
206 Walton, Dr. Gary V. 2,971 8/31/05 3,899.44 1995 3,899.44
- ------------------------------------------------------------------------------------------------------------
2