EXHIBIT 10-A
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THIRD AMENDMENT TO LEASE
THIS THIRD AMENDMENT TO LEASE(this "AMENDMENT") is made as of
October 1, 1996, by and between THE PRUDENTIAL INSURANCE COMPANY OF
AMERICA, a New Jersey corporation ("LANDLORD"), and XXXXXX-XXXXXXX
PARTNERS, a California general partnership ("TENANT"), comprised of Carlyle
Real Estate Limited Partnership-IX, an Illinois limited partnership
("CARLYLE"), and Medical Office Buildings, Ltd., a Washington limited
partnership ("MOB").
RECITALS
A. Landlord's predecessor-in-interest, Xxxxxx X. Xxxxxx Development Co.,
a Washington corporation, and Tenant's predecessor-in-interest, MOB,
entered into that certain Lease, dated as of February 1, 1977, with respect
to certain real property located in the County of Los Angeles, California
and more particularly described in Exhibit A thereto (the "PROPERTY"), as
amended by that certain First Amendment to Lease, dated as of July 16,
1979, by and between Landlord and MOB, as further amended by that certain
Second Amendment of Lease, dated as of December 19, 1985, by and between
Landlord and Tenant (as so amended, the "LEASE"). All initially
capitalized terms used herein and not otherwise defined herein shall have
the meanings set forth in the Lease.
B. Landlord has agreed to grant Tenant an option to purchase the
Property upon the terms and conditions set forth in that certain Option to
Purchase, dated as of even date herewith, by and between Landlord and
Tenant (the "PURCHASE OPTION").
C. Landlord has agreed to grant Tenant the right to assign (the
"ASSIGNMENT RIGHT") all of Tenant's rights and interest under the Lease,
including, without limitation, all improvements constructed on the Property
(collectively, the "LEASEHOLD ESTATE") to such entity as Landlord may
hereafter designate ("ASSIGNEE"), in exchange for which Tenant shall
receive from Landlord, as its sole consideration for such assignment, a
covenant not to xxx Tenant with respect to its obligations under the Lease
and the Loan (as defined below), provided certain terms and conditions are
satisfied.
D. The interests of Tenant in the Leasehold Estate are encumbered by
that certain Deed of Trust, dated as of January 15, 1991, and recorded in
the Official Records of Los Angeles County (the "OFFICIAL RECORDS") on
January 15, 1991, as Instrument No. 91-63945, as amended by that certain
First Amendment to Deed of Trust, dated as of January 24, 1996, and
recorded in the Official Records on January 25, 1996, as Instrument No. 96-
146121, as further amended by that certain Second Amendment to Deed of
Trust, dated as of even date herewith (as so amended, the "DEED OF TRUST"),
which secures repayment of that certain loan ("LOAN") evidenced by that
certain Note Secured by Deed of Trust, dated as of January 15, 1991, made
by Tenant in favor of Prudential, in the original principal amount of
Eighty-Six Million Dollars ($86,000,000), as amended by that certain First
Amendment to Loan Documents (the "FIRST AMENDMENT"), dated as of January
24, 1996, as further amended by that certain Second Amendment to Loan
Documents (the "SECOND AMENDMENT"), dated as of even date herewith (as so
amended, the "NOTE"). The Loan is also secured by, among other things, (i)
that certain Assignment of Lessor's Interest in Leases, dated as of January
15, 1991, by Tenant in favor of Landlord, recorded in the Official Records
on January 15, 1991, as Instrument No. 91-63946, as amended by the First
Amendment and Second Amendment (as so amended, the "ASSIGNMENT OF LEASES"),
(ii) that certain Lock Box Disbursement Agreement, dated as of even date
herewith, by and between Tenant and Landlord (the "LOCK BOX AGREEMENT"),
and (iii) that certain Pledge and Security Agreement, dated as of even date
herewith, by and between Tenant and Landlord (the "PLEDGE AGREEMENT"). The
Deed of Trust, Assignment of Leases, Lock Box Agreement, Pledge Agreement
and the Note, as well as the other documents evidencing or securing the
Loan, as amended to date, are collectively referred to as the "LOAN
DOCUMENTS".
E. In connection with the concurrent modification of the Loan Documents,
and the granting of the Purchase Option, Landlord and Tenant desire to
amend the Lease to incorporate the Assignment Right, to increase the Fixed
Rent under the Lease, and to make certain other modifications.
AGREEMENT
NOW, THEREFORE, in consideration of the Purchase Option, the
Assignment Right and the other foregoing recitals and other good and
valuable consideration, Landlord and Tenant hereby agree to amend the Lease
as follows:
A. RENT INCREASE
1. FIXED RENT. Effective October 1, 1996, Paragraph 3.2 of
the Lease is amended and restated as follows:
"3.2 FIXED RENT. During the Fixed Term, Tenant shall
pay to Landlord as minimum rent ("Fixed Rent") the sum of One Million Two
Hundred Forty-Three Thousand One Hundred Twenty-Five Dollars ($1,243,125)
per annum, payable as follows: (a) monthly installments of Thirty-Four
Thousand Five Hundred Thirty-One and 25/00 Dollars ($34,531.25) per month
during the period from October 1, 1996 through September 30, 1997, (b) a
one-time lump sum payment of Nine Hundred Thirty-Two Thousand Three Hundred
Forty-Three and 75/00 Dollars ($932,343.75) due on October 1, 1997, and (c)
monthly installments of One Hundred Three Thousand Five Hundred Ninety-
Three and 75/00 Dollars ($103,593.75) during the period from November 1,
1997 through the remainder of the Fixed Term."
2. DEFINITION. For the purposes of this Amendment, the
amount by which the Fixed Rent exceeds Four Hundred Fourteen Thousand Three
Hundred Seventy-Five Dollars ($414,375) per annum shall be referred to as
the "Ground Rent Increase."
3. EXTENDED TERM RENT. The first sentence of Paragraph
3.4(a) of the Lease is amended and restated as follows:
"During the Extended Term, Tenant shall pay to Landlord, as
Fixed Rent, an annual amount equal to nine and three-quarters percent
of the fair market value of the Land (determined as provided in this
Section 3.4) as of a date which is nine months prior to the commencement of
such Extended Term, but in no event shall the Fixed Rent during any
Extended Term be less than One Million Two Hundred Forty-Three Thousand One
Hundred Twenty-Five Dollars ($1,243,125) per annum."
B. ASSIGNMENT OPTION.
1. OPTION. Tenant shall have the one-time right to assign
all of its rights and interests under the Lease, including, without
limitation, all of its rights and interests in the improvements constructed
at the Property, to Assignee in exchange for receiving from Landlord the
Covenant Not to Xxx (as defined in Paragraph 2.g below) (the "ASSIGNMENT
OPTION"), on the following terms and conditions:
a. EXERCISE OF OPTION. In order to effectively
exercise the Assignment Option, Tenant must (i) give Landlord written
notice of Tenant's exercise of the Assignment Option, and (ii) execute and
deliver two original executed counterparts of each of the following
documents: (1) an Assignment of Lessee's Interest in Lease in favor of
Assignee in the form of EXHIBIT A attached hereto, (2) an Assignment of
Leases in favor of Assignee in the form of EXHIBIT B attached hereto, (3)
an Assignment of Contracts in favor of Assignee in the form of EXHIBIT C
attached hereto, (4) a Xxxx of Sale in favor of Assignee in the form of
EXHIBIT D attached hereto, (5) evidence of Tenant's authority to execute
the documents described in this Paragraph B.1.a, and (6) such other
ministerial documents (provided such documents do not create any additional
cost or liability, beyond that contained in this Agreement, to Tenant in
excess of Five Hundred Dollars ($500) in the aggregate) the Title Company
(as defined below) may reasonably require to effectuate the Assignment
Transaction (as defined below) or to issue the Title Policy (as defined
below) to Ticor Title Insurance Company, 000 Xxxxx Xxxxxx Xxxxxx, Xxxxx
000, Xxx Xxxxxxx, Xxxxxxxxxx 00000, Attention: Xxxxx XxXxxxxx (the "TITLE
COMPANY"). The documents referenced in items (1) through (6) above are
referred to collectively as the "ASSIGNMENT DOCUMENTS").
b. TITLE REPORT. Tenant shall cause the Title Company
to deliver to Landlord and Assignee a title report with respect to the
Leasehold Estate, dated no earlier than September 1, 1997.
c. OPTION PERIOD. The Assignment Option may only be
exercised during the month of September 1997 and shall be deemed terminated
and of no further force or effect as of October 1, 1997.
d. PARTIES ENTITLED TO EXERCISE OPTION. The
Assignment Option may be exercised by either Carlyle or MOB on behalf of
Tenant and, regardless of whether Carlyle or MOB or both exercise the
Assignment Option, such exercise of the Assignment Option shall bind both
Carlyle and MOB, in their capacities as constituent general partners of
Tenant.
e. WAIVER OF RIGHT OF FIRST REFUSAL. The exercise by
either Carlyle or MOB of the Assignment Option shall constitute a waiver by
both Carlyle and MOB, regardless of whether Carlyle, MOB or both exercise
the Assignment Option, of any right of first refusal either Carlyle or MOB
may have with respect to the Leasehold Estate or any part thereof.
2. CLOSING CONDITIONS. The closing (the "CLOSING") of the
transaction contemplated by the Assignment Documents (the "ASSIGNMENT
TRANSACTION") shall take place on the date provided for in Paragraph B.3,
below, provided that the following conditions have been satisfied:
a. FORM OF ASSIGNMENT DOCUMENTS. The form of the
Assignment Documents to be delivered to the Title Company pursuant to
Paragraph B.1.a, above, shall be conformed to the reasonable requirements
of the Title Company; provided that, in any event, the Assignment Documents
shall be without warranty, other than those warranties implied in a
California grant deed.
b. TITLE POLICY. The Title Company shall be prepared
to issue to Assignee an ALTA Form 1970 B title policy (the "TITLE POLICY")
insuring Assignee's title to the Leasehold Estate (or if Assignee is
Landlord, insuring Assignee's title to the fee interest in the Property, as
merged with the Leasehold Estate), together with such endorsements as
Assignee may reasonably require, containing no exceptions to the title to
the Leasehold Estate other than the exceptions identified on EXHIBIT E
attached hereto and the Approved Leases (as defined below), as the same may
have been amended in accordance with Paragraph B.2.d below (collectively,
the "PERMITTED EXCEPTIONS"); provided, however, that issuance of an ALTA
title policy (as opposed to CLTA title policy) shall not be a condition to
Closing to the extent the Title Company is not willing to issue an ALTA
title policy without the execution of documents by Tenant that Tenant is
not otherwise required to deliver under this Agreement; provided, further,
however, that Tenant shall be obligated to remove any exceptions that are
not Permitted Exceptions and that were recorded or caused to be recorded by
Tenant, but shall not be required to remove any other exceptions.
c. LEASES. The Leasehold Estate shall be encumbered
by no leases other than the following (the "APPROVED LEASES"):
(1) those leases identified on EXHIBIT F attached
hereto;
(2) any lease entered into after the date hereof
that has been approved by Landlord in writing prior to Tenant's execution
of such lease; and
(3) any lease entered into after the date hereof
that Tenant is permitted to enter into without Landlord's consent, pursuant
to the terms of the Assignment of Leases, as modified by the Annual
Effective Net Rent Agreement in the form of EXHIBIT G attached hereto, to
be executed by the parties concurrently herewith, provided that a copy of
each of such leases shall have been delivered to Landlord prior to Tenant's
execution of such lease.
d. NO MODIFICATION OF LEASES. The Approved Leases
shall have not been modified, amended or terminated except to the extent
such modifications, amendments, or terminations are delivered to Landlord
prior to Tenant's execution thereof and are either (1) approved in writing
by Landlord prior to the effectiveness of such modification, amendment or
termination, or (2) permitted, without the consent of Landlord, under the
terms of the Assignment of Leases.
e. APPROVAL OF TITLE. Assignee and Landlord shall
have determined, in their reasonable judgment, that the Assignment
Documents, as executed by Tenant, are sufficient to convey title to the
Leasehold Estate free and clear of all liens and encumbrances other than
the Permitted Exceptions; provided, however, that Tenant shall be obligated
to remove only those exceptions that are not Permitted Exceptions and that
were recorded or caused to be recorded by Tenant.
f. LANDLORD'S DELIVERIES. Landlord shall have
delivered to the Title Company two (2) original executed counterparts of
each of the Assignment Documents executed by Landlord and Assignee, as
applicable.
g. COVENANT NOT TO XXX. Landlord and Tenant shall
have delivered two (2) fully executed counterparts of the Liability
Agreement in the form of EXHIBIT H attached hereto (the "COVENANT NOT TO
XXX").
h. NO DEFAULT UNDER LOAN DOCUMENTS. Tenant shall not
be in default under any of the Loan Documents.
3. CLOSING. The Closing shall take place on such date as
may be mutually agreed to by the parties, but in no event shall take place
earlier than September 1, 1997, or later than September 30, 1997, and shall
be effective upon the recordation of the Grant Deed and the Assignment of
Leases and the issuance of the Title Policy.
4. FAILURE OF CONDITIONS. In the event any of the Closing
Conditions are not satisfied on or before September 30, 1997, as a result
of any breach by Tenant, Carlyle or MOB, the exercise of the Assignment
Option shall be deemed revoked and the Assignment Option shall be of no
further force or effect.
5. CONSIDERATION. Neither party shall receive monetary
consideration in connection with the Assignment Transaction. Without
limiting the foregoing, there shall be no prorations in connection with the
Assignment Transaction, provided that Tenant has provided the Quarterly
Statements (as such term is defined in the Lock Box Agreement) as required
under the Lock Box Agreement. Tenant hereby agrees that the Covenant Not
to Xxx constitutes adequate consideration for Tenant's assignment of its
rights and interests in the Leasehold Estate.
6. ASSUMPTION. The transfer of the Leasehold Estate to
Assignee shall in no way constitute an assumption by Assignee of Tenant's
obligations under the Lease or any of the Loan Documents.
7. PROJECT ACCOUNT. In connection with the Assignment
Transaction, Tenant shall transfer all sums in the Project Account (as
defined in the Lock Box Agreement) to Landlord.
C. LIMITATIONS ON LIABILITY.
1. CARLYLE. Landlord hereby confirms that Carlyle, its
present and future constituent partners, their respective successors and
assigns, and any persons or entities having a direct or indirect interest
in Carlyle shall not have any personal liability of any kind or nature
under or in connection with the Lease, including, without limitation, any
liability for payment of rent under the Lease. The foregoing shall not
affect or in any way limit the liability of Tenant or MOB under the Lease,
regardless of whether Tenant or MOB have any direct or indirect interest in
Carlyle.
2. TENANT. Neither Tenant nor any person or entity having a
direct or indirect interest in Tenant will have any personal liability for
the Ground Rent Increase. The limitation on liability set forth in this
Paragraph C.2 shall be deemed void ab initio and of no force and effect:
a. If Tenant shall make a general assignment for the
benefit of creditors, or shall admit in writing its inability to pay its
debts as they become due, or shall file a petition in bankruptcy, or shall
be adjudicated as bankrupt or insolvent, or shall file a petition seeking
any reorganization, arrangement, composition, readjustment, liquidation,
dissolution or similar relief under any present or future statute, law or
regulation, or shall file an answer admitting or shall fail timely to
contest the material allegations of a petition filed against it in any such
proceeding, or shall seek or consent to or acquiesce in the appointment of
any trustee, receiver or liquidator of Tenant or any material part of its
properties; or
b. If within sixty (60) days after the commencement of
any proceeding against Tenant seeking any reorganization, arrangement,
composition, readjustment, liquidation, dissolution or similar relief under
any present or future statute, law or regulation, such proceeding shall not
have been dismissed or if, within sixty (60) days after the appointment
without the consent or acquiescence of Tenant of any trustee, receiver or
liquidator of Tenant or of any material part of its properties, such
appointment shall not have been vacated.
D. GENERAL PROVISIONS.
1. CONTINUING EFFECTIVENESS. The Lease, except as amended
hereby, remains unamended, and, as amended hereby, remains in full force
and effect.
2. COUNTERPARTS. This Amendment may be executed in
counterparts, each of which shall constitute an original, and all of which,
together, shall constitute one document.
3. INTERPRETATION. The parties acknowledge that each party
and its counsel have reviewed and revised this Amendment and that the
normal rule of construction that ambiguities are to be resolved against the
drafting party shall not be employed in the interpretation of this
Amendment or exhibit hereto.
4. RECORDATION. This Amendment shall not be recorded and
shall not be a lien against the Land or Project.
5. DESCRIPTIONS; HEADINGS; CONSTRUCTION. The headings in
this Amendment are intended as references only and shall not in any way
limit, amplify or be used in interpreting the terms of this Amendment. The
masculine, feminine or neuter gender in the singular or plural shall be
deemed to include the other wherever the context of this Amendment so
requires. This Amendment shall not be construed against any party hereto
as the drafters of this Amendment.
6. GOVERNING LAWS. THIS AMENDMENT SHALL BE DEEMED TO BE
MADE UNDER THE LAWS OF THE STATE OF CALIFORNIA AND FOR ALL PURPOSES SHALL
BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS THEREOF.
7. ATTORNEYS' FEES. If any party to this Agreement shall
bring any action or proceeding for any relief against the other,
declaratory or otherwise, arising out of this Agreement, the losing party
shall pay to the prevailing party a reasonable sum for attorneys' fees and
costs incurred in bringing or defending such action or proceeding and/or
enforcing any judgment granted therein, all of which shall be deemed to
have accrued upon the commencement of such action or proceeding and shall
be paid whether or not such action or proceeding is prosecuted to final
judgment. Any judgment or order entered in such action or proceeding shall
contain a specific provision providing for the recovery of attorneys' fees
and costs, separate from the judgment, incurred in enforcing such judgment.
The prevailing party shall be determined by the trier of fact based upon an
assessment of which party's major arguments or positions taken in the
proceedings could fairly be said to have prevailed over the other party's
major arguments or positions on major disputed issues. For the purposes of
this section, attorneys' fees shall include, without limitation, fees
incurred in the following: (1) post-judgment motions; (2) contempt
proceedings; (3) garnishment, levy, and debtor and third party
examinations; (4) discovery; and (5) bankruptcy litigation. This section
is intended to be expressly severable from the other provisions of this
Agreement, is intended to survive any judgment and is not to be deemed
merged into the judgment.
8. SEVERABILITY. If any of the provisions of this Amendment
shall be held by any court of competent jurisdiction to be unlawful, void
or unenforceable for any reason as to any person or circumstance, such
provision or provisions shall be deemed severable from and shall in no way
affect the enforceability and validity of the remaining provisions of this
Agreement.
9. LANDLORD'S ATTORNEY'S FEES AND EXPENSES. Tenant shall
pay all of Landlord's fees, charges and expenses incurred in connection
with the negotiation and preparation of this Amendment; provided, however,
that (i) Landlord shall pay all of the closing costs payable in connection
with the Assignment Transaction, including the fees, charges and expenses
incurred by Landlord in connection with the consummation of the Assignment
Transaction, including without limitation title insurance costs, recording
fees, attorneys' fees, and documentation costs, and (ii) Tenant shall pay
all the fees, charges and expenses incurred by Tenant in connection with
the Assignment Transaction if the Closing does not occur for any reason
other than a default by Landlord which prevents the Closing.
10. FORECLOSURE. The parties hereby agree that,
notwithstanding any agreements between the parties to the contrary, at any
time after the consummation of the Assignment Transaction, the Assignee may
permit Landlord to foreclose on its interests in the Leasehold Estate
pursuant to the Deed of Trust.
11. FURTHER ASSURANCES. Each of the parties hereby agrees
that they will, at any time and from time to time upon written request by
the other party therefor, at each party's sole expense (unless the
requested action imposes a cost beyond that contemplated in this Agreement,
in which case the requesting party shall bear the expenses) and without the
assumption of any additional liability thereby, execute and deliver to the
requesting party, its successors and assigns, any new or confirmatory
instruments and take such further acts as the requesting party may
reasonably request to fully evidence the Assignment Transaction and to
enable the requesting party, its successors and assigns to fully realize
and enjoy the rights and interests to be assigned in connection with the
Assignment Transaction. The provisions of this Paragraph C.11 shall
survive the Closing.
12. TIME. Time is of the essence in the performance of the
parties' respective obligations hereunder.
IN WITNESS WHEREOF the parties hereto have executed this
Amendment as of the date first above written.
LANDLORD:
THE PRUDENTIAL INSURANCE COMPANY OF AMERICA,
a New Jersey corporation
By: ___________________________________
Xxxxxxx Xxxxxx
Vice President
TENANT:
XXXXXX-XXXXXXX PARTNERS, a California general
partnership
By: Carlyle Real Estate Limited
Partnership-IX, an Illinois limited partnership
General Partner
By: JMB Realty Corporation, a
Delaware corporation
Its General Partner
By: _________________________
Xxxxx X. Xxxxxxxxx
Vice President
By: Medical Office Buildings, Ltd., a
Washington limited partnership
General Partner
By: Xxxxxx Runstad Associates Limited
Partnership, a Washington limited partnership
Its General Partner
By: Xxxxxx Runstad & Company, a
Washington corporation
Its General Partner
By: ____________________
Xxxxxxx X. Xxxxxxx
President
EXHIBIT A
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FORM OF ASSIGNMENT OF LESSEE'S INTEREST IN LEASE
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RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
O'Melveny & Xxxxx LLP
000 Xxxxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxxxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxx, Esq.
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ASSIGNMENT OF LESSEE'S INTEREST IN LEASE
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This ASSIGNMENT OF LESSEE'S INTEREST IN LEASE (this
"ASSIGNMENT") is made as of ____________ ___, 199__, by XXXXXX-XXXXXXX
PARTNERS, a California general partnership ("ASSIGNOR"), comprised of
Carlyle Real Estate Limited Partnership-IX, an Illinois limited partnership
("CARLYLE"), and Medical Office Buildings, Ltd., a Washington limited
partnership ("MOB"), in favor of ______________________, a
_________________________ ("ASSIGNEE").
For valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, Assignor hereby grants, conveys, transfers
and assigns to Assignee all of Assignor's rights, title and interest in, to
and under that certain Lease, dated as of February 1, 1977, with respect to
certain real property located in the County of Los Angeles, California and
more particularly described in EXHIBIT A attached hereto (the "PROPERTY"),
as amended by that certain First Amendment to Lease, dated as of July 16,
1979, by and between Landlord and MOB, as further amended by that certain
Second Amendment of Lease, dated as of December 19, 1985, by and between
Landlord and Tenant (as so amended, the "LEASE"), together with (i) any and
all rights, title, estates and interests of Assignor, in and to any
improvements and fixtures located on the Property, (ii) any and all rights
or easements appurtenant to the Property, and (iii) any and all rights,
title, estates and interests of Assignor in and to any subleases, if any,
relating to the Property (the Lease and the foregoing rights, titles,
estates, interests, and easements are referred to collectively herein as
the "LEASEHOLD ESTATE").
Assignor hereby covenants, warrants and represents to Assignee
that (i) prior to the execution of this Assignment, Assignor has not
conveyed the Leasehold Estate, or any right, title or interest therein to
any person other than Assignee, and (ii) the Leasehold Estate is, as of the
date hereof, free from encumbrances done, made, or suffered by Assignor, or
any person claiming under Assignor.
The execution of this Assignment has been duly authorized by
Assignor's constituent partners, constitutes a legally binding obligation
of Assignor, does not require the consent of any other parties, and does
not violate the provisions of any agreement to which Assignor is a party.
The provisions of this Assignment shall be binding upon, and
shall inure to the benefit of, the parties hereto and their respective
successors and assigns.
This Assignment may be executed in any number of counterparts,
each of which shall be deemed an original, but all of which when taken
together shall constitute one and the same instrument.
Assignee hereby confirms that Carlyle, its present and future
constituent partners, their respective successors and assigns, and any
persons or entities having a direct or indirect interest in Carlyle shall
not have any personal liability of any kind or nature under or in
connection with this Assignment. The foregoing shall not in any way affect
the effectiveness of this Assignment or limit the liability of Assignor or
MOB under this Assignment, regardless of whether Assignor or MOB have any
direct or indirect interest in Carlyle.
This Assignment shall not be amended except in a writing signed
by both Assignor and Assignee.
This Assignment shall be governed by and construed in
accordance with the laws of the State of California.
IN WITNESS WHEREOF, Assignor has caused its duly authorized
representatives to execute this Assignment as of the date first above
written.
ASSIGNOR: XXXXXX-XXXXXXX PARTNERS, a California general
partnership
By: Carlyle Real Estate Limited
Partnership-IX, an Illinois limited partnership
General Partner
By: JMB Realty Corporation, a
Delaware corporation
Its General Partner
By: _________________________
Name:
Title:
By: Medical Office Buildings, Ltd., a
Washington limited partnership
General Partner
By: Xxxxxx Runstad Associates Limited
Partnership, a Washington limited partnership
Its General Partner
By: Xxxxxx Runstad & Company, a
Washington corporation
Its General Partner
By: ____________________
Name:
Title:
EXHIBIT A
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LEGAL DESCRIPTION OF REAL PROPERTY
----------------------------------
STATE OF CALIFORNIA )
)
COUNTY OF _____________)
On ______________ ___, 199___, before me __________________________, a
Notary Public in and for said State, personally appeared
___________________________, personally known to me (or proved to me on
the basis of satisfactory evidence) to be the person(s) whose name(s)
is/are subscribed to the within instrument and acknowledged to me that
he/she/they executed the same in his/her/their authorized capacity(ies),
and that by his/her/their signature(s) on the instrument the person(s), or
the entity on behalf of which the person(s) acted, executed the instrument.
WITNESS my hand and official seal.
__________________________________
Notary Public, State of California
STATE OF CALIFORNIA )
)
COUNTY OF _____________)
On ____________ ___, 1997, before me __________________________, a
Notary Public in and for said State, personally appeared
___________________________, personally known to me (or proved to me on
the basis of satisfactory evidence) to be the person(s) whose name(s)
is/are subscribed to the within instrument and acknowledged to me that
he/she/they executed the same in his/her/their authorized capacity(ies),
and that by his/her/their signature(s) on the instrument the person(s), or
the entity on behalf of which the person(s) acted, executed the instrument.
WITNESS my hand and official seal.
__________________________________
Notary Public, State of California
EXHIBIT B
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FORM OF ASSIGNMENT OF LEASES
----------------------------
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
O'Melveny & Xxxxx LLP
000 Xxxxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxxxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxx, Esq.
--------------------------------------------------
THIS ASSIGNMENT OF LEASES (this "ASSIGNMENT"), is made by XXXXXX-
XXXXXXX PARTNERS, a California general partnership ("ASSIGNOR"), comprised
of Carlyle Real Estate Limited Partnership-IX, an Illinois limited
partnership ("CARLYLE"), and Medical Office Buildings, Ltd., a Washington
limited partnership ("MOB"), in favor of ____________________________, a
___________________ ("ASSIGNEE").
RECITALS
A. Xxxxxx X. Xxxxxx Development Co., a Washington corporation, and MOB
entered into that certain Lease, dated as of February 1, 1977, as amended
by that certain First Amendment to Lease, dated as of July 16, 1979, by and
between The Prudential Insurance Company of America, a New Jersey
corporation ("PRUDENTIAL") (the successor-in-interest to Xxxxxx X. Xxxxxx
Development Co.) and MOB, as further amended by that certain Second
Amendment of Lease, dated as of December 19, 1985, by and between
Prudential and Assignor (the successor-in-interest to MOB), as further
amended by that certain Third Amendment to Lease, dated as of October 1,
1996, by and between Prudential and Assignor (as so amended, the "LEASE").
B. Pursuant to the Lease, Prudential has granted Assignor the right to
assign (the "ASSIGNMENT RIGHT") its leasehold estate in certain real
property described in ATTACHMENT A attached hereto, and the improvements
located thereon (the "LEASEHOLD ESTATE") to Assignee in exchange for
receiving from Prudential a covenant not to xxx with respect to certain
obligations owed by Assignee to Prudential, all as more fully set forth in
the Lease.
C. Assignor has exercised the Assignment Right pursuant to the terms of
the Lease.
D. The Lease provides that in connection with exercising the Assignment
Right, Assignor shall assign to Assignee certain leases.
ASSIGNMENT
NOW, THEREFORE, in consideration of the foregoing recitals and other
good and valuable consideration, Assignor hereby makes the following
assignment:
1. ASSIGNMENT OF TENANT LEASES. Assignor hereby assigns, sets
over and transfers to Assignee all of its right, title and interest in, to
and under those certain leases set forth in ATTACHMENT B attached hereto
and incorporated herein by this reference.
2. MISCELLANEOUS. This Assignment shall be governed by and
construed in accordance with the laws of the State of California and may
not be modified or amended in any manner other than by a written agreement
signed by both Assignee and Assignor.
3. EXCULPATION. Assignee hereby confirms that Carlyle, its
present and future constituent partners, their respective successors and
assigns, and any persons or entities having a direct or indirect interest
in Carlyle shall not have any personal liability of any kind or nature
under or in connection with this Assignment. The foregoing shall not in
any way affect the effectiveness of this Assignment or limit the liability
of Assignor or MOB under this Assignment, regardless of whether Assignor or
MOB have any direct or indirect interest in Carlyle.
4. COUNTERPARTS. This Assignment may be executed in counterparts,
each of which shall be an original and all of which counterparts taken
together shall constitute one and the same agreement.
IN WITNESS WHEREOF, Assignor has caused its duly authorized
representatives to execute this Assignment as of the date first above
written.
ASSIGNOR: XXXXXX-XXXXXXX PARTNERS, a California general
partnership
By: Carlyle Real Estate Limited
Partnership-IX, an Illinois limited partnership
General Partner
By: JMB Realty Corporation, a
Delaware corporation
Its General Partner
By: _________________________
Name:
Title:
By: Medical Office Buildings, Ltd., a
Washington limited partnership
General Partner
By: Xxxxxx Runstad Associates Limited
Partnership, a Washington limited partnership
Its General Partner
By: Xxxxxx Runstad & Company, a
Washington corporation
Its General Partner
By: ____________________
Name:
Title:
ATTACHMENT A
------------
LEGAL DESCRIPTION
-----------------
ATTACHMENT B
------------
[LEASES]
--------
STATE OF CALIFORNIA )
)
COUNTY OF _____________)
On ____________ ___, 1997, before me __________________________, a
Notary Public in and for said State, personally appeared
___________________________, personally known to me (or proved to me on
the basis of satisfactory evidence) to be the person(s) whose name(s)
is/are subscribed to the within instrument and acknowledged to me that
he/she/they executed the same in his/her/their authorized capacity(ies),
and that by his/her/their signature(s) on the instrument the person(s), or
the entity on behalf of which the person(s) acted, executed the instrument.
WITNESS my hand and official seal.
__________________________________
Notary Public, State of California
STATE OF CALIFORNIA )
)
COUNTY OF _____________)
On _____________ ___, 199___, before me __________________________, a
Notary Public in and for said State, personally appeared
___________________________, personally known to me (or proved to me on
the basis of satisfactory evidence) to be the person(s) whose name(s)
is/are subscribed to the within instrument and acknowledged to me that
he/she/they executed the same in his/her/their authorized capacity(ies),
and that by his/her/their signature(s) on the instrument the person(s), or
the entity on behalf of which the person(s) acted, executed the instrument.
WITNESS my hand and official seal.
__________________________________
Notary Public, State of California
EXHIBIT C
---------
FORM OF ASSIGNMENT OF CONTRACTS
-------------------------------
THIS ASSIGNMENT OF CONTRACTS (this "ASSIGNMENT"), is made by XXXXXX-
XXXXXXX PARTNERS, a California general partnership ("ASSIGNOR"), comprised
of Carlyle Real Estate Limited Partnership-IX, an Illinois limited
partnership, and Medical Office Buildings, Ltd., a Washington limited
partnership, in favor of _______________ __________________, a
_____________________ ("ASSIGNEE").
RECITALS
A. Xxxxxx X. Xxxxxx Development Co., a Washington corporation, and MOB
entered into that certain Lease, dated as of February 1, 1977, as amended
by that certain First Amendment to Lease, dated as of July 16, 1979, by and
between The Prudential Insurance Company of America, a New Jersey
corporation ("PRUDENTIAL") (the successor-in-interest to Xxxxxx X. Xxxxxx
Development Co.) and MOB, as further amended by that certain Second
Amendment of Lease, dated as of December 19, 1985, by and between
Prudential and Assignor (the successor-in-interest to MOB), as further
amended by that certain Third Amendment to Lease, dated as of October 1,
1996, by and between Prudential and Assignor (as so amended, the "LEASE").
B. Pursuant to the Lease, Prudential has granted Assignor the right to
assign (the "ASSIGNMENT RIGHT") its leasehold estate in certain real
property described in ATTACHMENT A attached hereto, and the improvements
located thereon (the "LEASEHOLD ESTATE") to Assignee in exchange for
receiving from Prudential a covenant not to xxx with respect to certain
obligations owed by Assignee to Prudential, all as more fully set forth in
the Lease.
C. Assignor has exercised the Assignment Right pursuant to the terms of
the Lease.
D. The Lease provides that in connection with exercising the Assignment
Right, Assignor shall assign to Assignee certain agreements.
ASSIGNMENT
NOW, THEREFORE, in consideration of the foregoing recitals and other
good and valuable consideration, Assignor hereby makes the following
assignment:
1. ASSIGNMENT OF EQUIPMENT LEASES AND COMMISSION AGREEMENTS.
Assignor hereby assigns, sets over and transfers to Assignee, and Assignee
assumes, all of Assignor's rights, obligations, title, and interest in, to
and under (a) all service, supply, maintenance, utility and commission
agreements, and all equipment leases, described in ATTACHMENT A attached
hereto and incorporated herein by this reference, (b) all assignable
warranties and guaranties relating to the Leasehold Estate and that remain
in effect on the date hereof, and (c) all assignable licenses, permits and
other written authorizations necessary for the use, operation or ownership
of the Property.
2. MISCELLANEOUS. This Assignment shall be governed by and
construed in accordance with the laws of the State of California and may
not be modified or amended in any manner other than by a written agreement
signed by both Assignor and Assignee.
3. COUNTERPARTS. This Assignment may be executed in counterparts,
each of which shall be an original and all of which counterparts taken
together shall constitute one and the same agreement.
4. EXCULPATION. Assignee hereby confirms that Carlyle, its
present and future constituent partners, their respective successors and
assigns, and any persons or entities having a direct or indirect interest
in Carlyle shall not have any personal liability of any kind or nature
under or in connection with this Assignment. The foregoing shall not in
any way affect the effectiveness of this Assignment or limit the liability
of Assignor or MOB under this Assignment, regardless of whether Assignor or
MOB have any direct or indirect interest in Carlyle.
IN WITNESS WHEREOF, Assignor has caused its duly authorized
representatives to execute this Assignment as of the date first above
written.
ASSIGNOR: XXXXXX-XXXXXXX PARTNERS, a California general
partnership
By: Carlyle Real Estate Limited
Partnership-IX, an Illinois limited partnership
General Partner
By: JMB Realty Corporation, a
Delaware corporation
Its General Partner
By: _________________________
Name:
Title:
By: Medical Office Buildings, Ltd., a
Washington limited partnership
General Partner
By: Xxxxxx Runstad Associates Limited
Partnership, a Washington limited partnership
Its General Partner
By: Xxxxxx Runstad & Company, a
Washington corporation
Its General Partner
By: ____________________
Name:
Title:
ATTACHMENT A
------------
[LIST OF CONTRACTS]
-------------------
EXHIBIT D
---------
FORM OF XXXX OF SALE
--------------------
THIS XXXX OF SALE (this "XXXX OF SALE"), is made by XXXXXX-XXXXXXX
PARTNERS, a California general partnership ("SELLER"), comprised of Carlyle
Real Estate Limited Partnership-IX, an Illinois limited partnership
("CARLYLE"), and Medical Office Buildings, Ltd., a Washington limited
partnership, in favor of ___________________ ________________, a
_____________________ ("BUYER").
RECITALS
A. Xxxxxx X. Xxxxxx Development Co., a Washington corporation, and MOB
entered into that certain Lease, dated as of February 1, 1977, as amended
by that certain First Amendment to Lease, dated as of July 16, 1979, by and
between The Prudential Insurance Company of America, a New Jersey
corporation ("PRUDENTIAL") (the successor-in-interest to Xxxxxx X. Xxxxxx
Development Co.) and MOB, as further amended by that certain Second
Amendment of Lease, dated as of December 19, 1985, by and between
Prudential and Seller (the successor-in-interest to MOB), as further
amended by that certain Third Amendment to Lease, dated as of October 1,
1996, by and between Prudential and Seller (as so amended, the "LEASE").
B. Pursuant to the Lease, Prudential has granted Seller the right to
assign (the "ASSIGNMENT RIGHT") its leasehold estate in certain real
property described in ATTACHMENT A attached hereto, and the improvements
located thereon (the "LEASEHOLD ESTATE") to Buyer in exchange for receiving
from Prudential a covenant not to xxx with respect to certain obligations
owed by Buyer to Prudential, all as more fully set forth in the Lease.
C. Seller has exercised the Assignment Right pursuant to the terms of
the Lease.
D. The Lease provides that in connection with exercising the Assignment
Right, Seller shall convey to Buyer all of its right, title and interest to
all of the tangible personal property owned by Seller located on the Real
Property, and used in the ownership, operation and maintenance of the Real
Property, including the improvements constructed thereon, and all books,
records and files relating solely to the Real Property (herein collectively
called the "PERSONAL PROPERTY").
CONVEYANCE
NOW, THEREFORE, in consideration of the receipt of TEN AND NO/100
DOLLARS ($10.00) and other good and valuable consideration paid in hand by
Buyer to Seller, the receipt and sufficiency of which are hereby
acknowledged, Seller has GRANTED, CONVEYED, SOLD, TRANSFERRED, SET OVER and
DELIVERED and by these presents does hereby GRANT, SELL, TRANSFER, SET OVER
and DELIVER to Buyer, its legal representatives, successors and assigns,
all of its right, title and interest in and to all the Personal Property,
to have and to hold, all and singular, the Personal Property unto Buyer
forever.
Buyer hereby confirms that Carlyle, its present and future
constituent partners, their respective successors and assigns, and any
persons or entities having a direct or indirect interest in Carlyle shall
not have any personal liability of any kind or nature under or in
connection with this Xxxx of Sale. The foregoing shall not in any way
affect the effectiveness of this Xxxx of Sale or limit the liability of
Seller or MOB under this Xxxx of Sale, regardless of whether Seller or MOB
have any direct or indirect interest in Carlyle.
IN WITNESS WHEREOF, Seller has caused its duly authorized
representatives to execute this Xxxx of Sale as of the date first above
written.
SELLER: XXXXXX-XXXXXXX PARTNERS, a California general
partnership
By: Carlyle Real Estate Limited
Partnership-IX, an Illinois limited partnership
General Partner
By: JMB Realty Corporation, a
Delaware corporation
Its General Partner
By: _________________________
Name:
Title:
By: Medical Office Buildings, Ltd., a
Washington limited partnership
General Partner
By: Xxxxxx Runstad Associates Limited
Partnership, a Washington limited partnership
Its General Partner
By: Xxxxxx Runstad & Company, a
Washington corporation
Its General Partner
By: ____________________
Name:
Title:
ATTACHMENT A
------------
[LEGAL DESCRIPTION]
-------------------
EXHIBIT E
---------
PERMITTED EXCEPTIONS
--------------------
EXHIBIT F
---------
APPROVED LEASES
---------------
EXHIBIT G
---------
ANNUAL EFFECTIVE NET RENT AGREEMENT
-----------------------------------
October 1, 1996
Xxxxxx-Xxxxxxx Partners
c/o Mr. H. Xxx Xxxxxxx
0000 Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxxxx 00000
Re: Cedars-Sinai Medical Office Complex
Assignment of Lessor's Interest in Leases
Dear Xxx:
Pursuant to Section 3, "NEGATIVE COVENANTS" of that certain Assignment of
Lessor's Interest in Leases dated January 15, 1991 (as amended, the
"Assignment") by and between Xxxxxx-Xxxxxxx Partners ("W/C"), and
Prudential Insurance Company of America ("Prudential"), Prudential's
consent will not be required for entering into, renewing or amending any
Leases (i) that have a base term greater than three (3) years and less than
ten (10) years, (ii) that cover less than 10,000 aggregate square feet,
(iii) that are in the standard form of office lease previously approved by
Assignee, with no material changes, and (iv) that provide for a rental rate
not less than the "Annual Net Effective Rent". Section 3 of the Assignment
further provides that the Annual Net Effective Rent is to be agreed in
writing between Prudential and W/C. All capitalized terms used in this
letter and not defined will have the meanings ascribed to such terms in the
Assignment.
Pursuant to the provisions of said Section 3, Prudential hereby proposes
that the Annual Net Effective Rent be set at the following rates for the
respective calendar years outlined below:
Calendar Annual Net
Year Effective Rent
-------- -------------------
1996 $27.00
1997 $27.00
"Annual Net Effective Rent" is defined to be on a net rentable square
footage basis and will be calculated by taking the annual base rent
specified in the relevant lease (exclusive of operating expenses and real
estate tax pass-throughs paid by the tenant under the lease) and
subtracting from the annual base rent (A) any operating expenses or real
estate taxes paid by Assignor for the benefit of the tenant (e.g. expense
stops), and (B) any free rent given to the tenant (free rent will be
calculated on a net rentable square footage basis and will be amortized
over the term of the lease).
For example, if the annual base rent is $45.00 per net rentable square foot
and the annual expense stops for operating expenses and real estate taxes
are $10.00 and $1.50 per net rentable square foot respectively, the Annual
Net Effective Rent would be $33.50 net rentable square foot ($33.50 =
$45.00 - $10.00 - $1.50).
If you are in agreement with the terms contained herein, please execute
this letter in the space provided below.
Sincerely,
THE PRUDENTIAL INSURANCE COMPANY OF AMERICA,
a New Jersey corporation
By: _____________________________
Xxxxxxx Xxxxxx
Vice President
Accepted and agreed to as of October 1, 1996:
XXXXXX-XXXXXXX PARTNERS,
a California General Partnership
By: Medical Office Buildings, Ltd.,
a Washington limited partnership,
General Partner
By: Xxxxxx Runstad Associates Limited Partnership,
a Washington limited partnership
General Partner
By: Xxxxxx Runstad & Company
a Washington limited corporation
General Partner
By: ___________________________
H. Xxx Xxxxxxx
President
By: Carlyle Real Estate Limited Partnership-IX
an Illinois limited partnership
General Partner
By: JMB Realty Corporation, a
Delaware corporation
General Partner
By: ____________________________
Xxxxx X. Xxxxxxxxx
Vice President
EXHIBIT H
---------
FORM OF LIABILITY AGREEMENT
---------------------------
THIS LIABILITY AGREEMENT (this "AGREEMENT") is made as of
_____________ ___, 19___, by and between THE PRUDENTIAL INSURANCE COMPANY
OF AMERICA, a New Jersey corporation ("PRUDENTIAL"), and XXXXXX-XXXXXXX
PARTNERS, a California general partnership ("WCP"), comprised of Carlyle
Real Estate Limited Partnership-IX, an Illinois limited partnership
("CARLYLE"), and Medical Office Buildings, Ltd., a Washington limited
partnership ("MOB").
RECITALS
A. Xxxxxx X. Xxxxxx Development Co., a Washington corporation, and MOB
entered into that certain Lease, dated as of February 1, 1977, as amended
by that certain First Amendment to Lease, dated as of July 16, 1979, by and
between The Prudential Insurance Company of America, a New Jersey
corporation ("PRUDENTIAL") (the successor-in-interest to Xxxxxx X. Xxxxxx
Development Co.) and MOB, as further amended by that certain Second
Amendment of Lease, dated as of December 19, 1985, by and between
Prudential and WCP (the successor-in-interest to MOB), as further amended
by that certain Third Amendment to Lease, dated as of October 1, 1996, by
and between Prudential and WCP (as so amended, the "LEASE"). Capitalized
terms used herein and not otherwise defined herein shall have the meanings
set forth in the Lease.
B. The interests of WCP in the Leasehold Estate (as defined below) are
encumbered by that certain Deed of Trust, dated as of January 15, 1991, and
recorded in the Official Records of Los Angeles County (the "OFFICIAL
RECORDS") on January 15, 1991, as Instrument No. 91-63945, as amended by
that certain First Amendment to Deed of Trust, dated as of January 24,
1996, and recorded in the Official Records on January 25, 1996, as
Instrument No. 96-146121, as further amended by that certain Second
Amendment to Deed of Trust, dated as of October 1, 1996 (as so amended, the
"DEED OF TRUST"), which secures repayment of that certain loan ("LOAN")
evidenced by that certain Note Secured by Deed of Trust, dated as of
January 15, 1991, made by WCP in favor of Prudential, in the original
principal amount of Eighty-Six Million Dollars ($86,000,000), as amended by
that certain First Amendment to Loan Documents, dated as of January 24,
1996, as further amended by that certain Second Amendment to Loan
Documents, dated as of October 1, 1996 (as so amended, the "NOTE"). The
Deed of Trust and the Note as well as the other documents evidencing or
securing the Loan, as amended to date, are collectively referred to as the
"LOAN DOCUMENTS".
C. Under the terms of the Lease, Prudential granted WCP the right to
assign (the "ASSIGNMENT RIGHT") all of WCP's rights and interest under the
Lease, including, without limitation, all improvements constructed on the
Land (collectively, the "LEASEHOLD ESTATE") to an entity to be designated
by Prudential ("ASSIGNEE"), in exchange for receiving from Prudential a
covenant not to xxx WCP with respect to WCP's obligations under the Lease
or the Loan Documents.
D. WCP has exercised the Assignment Right pursuant to the terms of the
Lease.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing recitals, and
other good and valuable consideration, the parties agrees as follows:
1. COVENANT NOT TO XXX BY PRUDENTIAL. Notwithstanding
anything to the contrary contained in the Lease or the Loan Documents,
Prudential, on behalf of itself and its successors and assigns, and all
persons claiming by under or through it, does hereby absolutely and
irrevocably covenant not to make any claim or pursue any right or remedy
against any one or more of WCP, and its direct and indirect partners, and
their respective partners, trustees, beneficiaries, officers, shareholders,
directors, agents, servants, contractors, employees, associated or
affiliated corporations, partnerships, and limited liability companies and
predecessors-in-interest (collectively, the "WCP PARTIES") for any claims,
rights, demands, actions, suits, causes of action, damages, counterclaims,
defenses, losses, cots, obligations, liabilities and expenses of every kind
or nature, known or unknown, suspected or unsuspected, fixed or contingent,
foreseen or unforeseen, arising out of or relating directly or indirectly
to any circumstances or state of facts pertaining to the Lease, any other
documents evidencing the Lease (the "LEASE DOCUMENTS"), the Leasehold
Estate, the Land or the Loan Documents, or any nonperformance of any
agreement or obligation related thereto, or any statements,
representations, acts or omissions, by any of the Borrower Parties in any
way connected with, relating to or affecting, directly or indirectly, the
Lease Documents or the Land or the Loan Documents or any security provided
thereunder.
2. NO RELEASE BY PRUDENTIAL. The parties agree that this
Agreement shall not constitute a release of WCP's obligations under the
Loan Documents.
3. RELEASE BY WCP. Notwithstanding anything to the contrary
contained in the Lease or the Loan Documents, WCP, on behalf of itself and
its successors and assigns, and all persons claiming by under or through
it, does hereby release Prudential, its partners, trustees, beneficiaries,
officers, shareholders, directors, agents, servants, contractors,
employees, associated or affiliated corporations, partnerships, and limited
liability companies and predecessors-in-interest (collectively, the
"PRUDENTIAL PARTIES") from any claims, rights, demands, actions, suits,
causes of action, damages, counterclaims, defenses, losses, cots,
obligations, liabilities and expenses of every kind or nature, known or
unknown, suspected or unsuspected, fixed or contingent, foreseen or
unforeseen, arising out of or relating directly or indirectly to any
circumstances or state of facts pertaining to the Lease, the Lease
Documents, the Leasehold Estate, the Land or the Loan Documents, or any
nonperformance of any agreement or obligation related thereto, or any
statements, representations, acts or omissions, by any of the Prudential
Parties in any way connected with, relating to or affecting, directly or
indirectly, the Lease Documents or the Land or the Loan Documents or any
security provided thereunder.
4. NO ASSUMPTION. WCP, on behalf of itself and its
constituent partners, agrees that neither this Agreement nor any of the
documents executed by WCP in connection with the Assignment shall
constitute an assumption by either ASSIGNEE] or Prudential of the
obligations of either WCP or its constituent partners under the Lease or
the Loan Documents.
5. ADVICE OF COUNSEL. Each party hereto agrees, represents
and warrants that it has had the advice of counsel of its own choosing in
the negotiation and preparation of this Agreement, that it has read the
provisions of this Agreement, and that it is fully aware of its contents
and legal effect.
6. EXCULPATION. Prudential hereby confirms that Carlyle,
its present and future constituent partners, their respective successors
and assigns, and any persons or entities having a direct or indirect
interest in Carlyle shall not have any personal liability of any kind or
nature under or in connection with this Agreement. The foregoing shall not
in any way affect the effectiveness of this Agreement or limit the
liability of WCP or MOB under this Agreement, regardless of whether WCP or
MOB have any direct or indirect interest in Carlyle.
7. COUNTERPARTS. This Agreement may be executed in
counterparts, each of which shall constitute an original, and all of which,
together, shall constitute one document.
IN WITNESS WHEREOF the parties hereto have executed this
Agreement as of the date first above written.
PRUDENTIAL:
THE PRUDENTIAL INSURANCE COMPANY OF AMERICA,
a New Jersey corporation
By: ___________________________________
Name:
Title:
WCP:
XXXXXX-XXXXXXX PARTNERS, a California general
partnership
By: Carlyle Real Estate Limited
Partnership-IX, an Illinois limited partnership
General Partner
By: JMB Realty Corporation, a
Delaware corporation
Its General Partner
By: _________________________
Name:
Title:
By: Medical Office Buildings, Ltd., a
Washington limited partnership
General Partner
By: Xxxxxx Runstad Associates Limited
Partnership, a Washington limited partnership
Its General Partner
By: Xxxxxx Runstad & Company, a
Washington corporation
Its General Partner
By: ____________________
Name:
Title:
