PURCHASE AGREEMENT AND JOINT ESCROW INSTRUCTIONS
(Carson Industrial Park; Carson, California)
THIS AGREEMENT is made and entered into as of April 21, 1997
by and between CARLYLE INCOME PLUS, LTD., an Illinois limited
partnership (hereinafter called "Seller"), and XXXX CORNERSTONE
II, a California general partnership (hereinafter called
"Buyer").
R E C I T A L S
A. Seller is the owner of certain real property in an
industrial park located in the City of Xxxxxx, County of Los
Angeles, State of California, consisting in the aggregate of
approximately 205,783 square feet of space in multi-tenant
industrial buildings (collectively, the "Premises").
B. Buyer desires to purchase, and Seller desires to sell,
such Premises on the terms and conditions hereinafter documented.
NOW, THEREFORE, in consideration of the mutual undertakings
of the parties hereto, it is hereby agreed as follows:
1. Purchase and Sale. Seller shall sell to Buyer, and
Buyer shall purchase from Seller, the land (the "Land") described
in Exhibit "A", attached hereto and made a part hereof, together
with all right, title and interest of Seller in and to all
improvements, structures, supplies and fixtures located upon the
Land, all right, title and interest of Seller in and to those
items of personal property located upon or about the Land and
described in Exhibit "B", attached hereto and made a part hereof,
all right, title and interest of Seller in and to the name
"Xxxxxx Industrial Park", and, to the extent assignable, all
right, title and interest of Seller in and to all leases,
contract rights, agreements, licenses, permits, tenant lists,
advertising material and telephone exchange numbers (hereinafter,
collectively, the "Property"), all upon the terms, covenants and
conditions hereinafter set forth.
2. Purchase Price. The purchase price (the "Purchase
Price") for the Property shall be the sum of $7,200,000, as
adjusted by the prorations set forth in paragraph 5D below.
3. Payment of Purchase Price. The Purchase Price shall be
paid to Seller by Buyer as follows:
A. Escrow Deposit. Concurrently herewith, Buyer shall
deliver $100,000 (which amount, together with all interest earned
thereon, is herein called the "Escrow Deposit") to Commerce
Escrow Company, at its offices at 0000 Xxxxxxxx Xxxxxxxxx, Xxxxx
000, Xxx Xxxxxxx, Xxxxxxxxxx, Attention: Xx. Xxxxx Xxxxxxxx
(which company, in its capacity as escrow holder hereunder, is
called "Escrow Holder"). The Escrow Deposit shall be delivered
to Escrow Holder by wire transfer of immediately available
federal funds or by bank or cashier's check drawn on a national
bank reasonably satisfactory to Seller. The amounts deposited
hereunder shall be held by Escrow Holder as a deposit against the
Purchase Price in accordance with the terms and provisions of
this Agreement. At all times that the Escrow Deposit is being
held by the Escrow Holder, the Escrow Deposit shall be invested
by Escrow Holder in the following investments ("Approved
Investments"): (i) United States Treasury obligations, (ii)
United States Treasury-backed repurchase agreements issued by a
major money center banking institution reasonably acceptable to
Seller, or (iii) such other manner as may be reasonably agreed to
by Seller and Buyer. The Escrow Deposit shall be disposed of by
Escrow Holder only as provided in this Agreement.
B. Closing Payment. The balance of the Purchase Price, as
adjusted by the application of the Escrow Deposit and by the
prorations and credits specified herein, shall be paid in cash on
the Closing Date (the amount to be paid under this subparagraph C
being herein called the "Closing Payment").
4. Conditions Precedent
A. Title Matters.
(1) Title Report. Seller has ordered (and upon receipt
shall deliver to Buyer) a copy of a preliminary title report or a
commitment for title insurance (in either case, the "Preliminary
Title Report") covering the Property from Chicago Title Insurance
Company (which company, in its capacity as title insurer
hereunder, is herein called the "Title Company"), together with
copies of all exceptions to title referenced thereto. In
addition, Seller has ordered (and upon receipt shall deliver to
Buyer) an update of that certain ALTA as-built survey of the
Property dated August 4, 1988, prepared by Xxxxxx and Associates,
which survey shall be certified to Buyer, its lender, if any, and
Title Company ("Survey"). If Buyer shall fail to deliver written
notice ("Title Objection Notice") setting forth those title and
survey matters to which Seller objects on or before the date
which is fifteen (15) days following Buyer's receipt of the later
of the Preliminary Title Report and the Survey (the "Title Review
Period"), Buyer shall be deemed to have approved the exceptions
to title shown on the Preliminary Title Report and the matters
disclosed on the Survey. Approval by Buyer of any additional
exceptions to title or survey matters disclosed after the end of
the Title Review Period shall be a condition precedent to Buyer's
obligation to purchase the Property (Buyer hereby agreeing that
such approval shall not be unreasonably withheld). Unless Buyer
gives written notice that it disapproves any such additional
exceptions to title or survey matters, stating the exceptions so
disapproved, on or before the sooner to occur of ten (10) days
after receipt of written notice thereof or the Closing Date,
Buyer shall be deemed to have approved said exceptions or survey
matters; provided, however, that in the event that the Closing
Date occurs prior to said ten (10) day period, Buyer shall have
the option, in its reasonable discretion, to extend the Closing
Date for up to three (3) days to provide Buyer with the
opportunity to review any material additional title or survey
matters disclosed after the end of the Title Review Period. If
for any reason, on or before the Closing Date Seller does not
cause such exceptions to title or survey matters which Buyer
disapproves (to the extent Buyer is permitted hereunder to so
disapprove) to be removed at no cost or expense to Buyer (Seller
having the right but not the obligation to do so), the obligation
of Seller to sell, and Buyer to buy, the Property as herein
provided shall terminate (and Seller and Buyer shall have no
further obligations in connection herewith, except for the return
of the Escrow Deposit to Buyer). Buyer shall have the option to
waive the condition precedent set forth in this paragraph 4A(1)
by notice to Seller. In the event of such waiver, such condition
shall be deemed satisfied. All matters set forth on the
Preliminary Title Report which are not timely objected to by
Buyer, are herein called the "Permitted Exceptions". The term
"Permitted Exceptions" shall additionally include (i) any title
matters objected to by Buyer, which objections are subsequently
waived in writing by Buyer, and (ii) any title matters objected
to by Buyer, which objections are cured to Buyer's satisfaction.
(2) Exceptions to Title. Buyer shall be obligated to
accept title to the Property, subject to the following exceptions
to title:
(a) Real estate taxes and assessments not yet due and
payable;
(b) The printed exceptions which appear in the standard
form owner's policy of title insurance issued by Title Company;
and
(c) The Permitted Exceptions.
Conclusive evidence of the availability of such title shall be
the willingness of Title Company to issue to Buyer on the Closing
Date a standard form ALTA extended coverage owner's title
insurance policy ("Owner's Policy"), in the face amount of the
Purchase Price, which policy shall (i) show title to the Property
to be vested of record in Buyer, (ii) show the Permitted
Exceptions to be the only exceptions to title, and (iii) contain
such endorsements as Buyer shall require (and the Title Company
shall agree to issue) prior to the expiration of the Title Review
Period.
B. Due Diligence Reviews. Except for title and survey
matters (which shall be subject to the provisions of paragraph 4A
above), Buyer shall have until 5:00 p.m. (Central time) on June
6, 1997 (the "Due Diligence Period") within which to complete all
of Buyer's due diligence examinations, reviews and inspections of
all matters pertaining to the purchase of the Property, including
all leases, service contracts, and all physical, environmental
and compliance matters and conditions respecting the Property.
Without limitation thereon, Buyer acknowledges the Property is,
and has been, utilized for industrial purposes, that hazardous or
toxic materials may be present at, on, in or under the Property
and that, subject to the provisions set forth hereinafter in this
paragraph, Seller shall provide Buyer with a so-called "phase I
site assessment" from a reputable environmental engineer
respecting the environmental condition of the Property. During
the Due Diligence Period, Seller shall continue to provide Buyer
with reasonable access to the Property upon reasonable advance
notice and either has or shall hereafter make available to Buyer,
to the extent in Seller's possession, such leases, service
contracts and other contracts, agreements and documents known to
Seller which presently affect or describe the Property. Without
limitation on the foregoing, within five (5) days after the date
hereof, Seller shall deliver to Buyer or make available to Buyer
within a forty (40) mile radius of Buyer's office, complete and
legible copies of the items listed in Xxxxx Xxxxx'x letter to
Buyer dated March 18, 1997, a copy of which letter is attached
hereto as Exhibit "B-2" and made a part hereof. In addition,
Seller shall continue to provide Buyer with access (i) to the
appropriate books and records kept by Seller relating to the
operation of the Property, and (ii) to appropriate personnel at
the Property as Seller and Buyer may reasonably agree, in either
case during normal business hours provided Buyer has given Seller
at least twenty-four (24) hours advance notice thereof. Buyer
shall promptly commence, and shall diligently and in good faith
pursue, its due diligence review hereunder. Buyer shall at all
times conduct its due diligence review, inspections and
examinations in a manner so as to not cause damage, loss, cost or
expense to Seller or the Property and so as to not interfere with
or disturb any tenant at the Property, and Buyer will indemnify,
defend, and hold Seller and the Property harmless from and
against any such actual damage, loss, cost or expense (the
foregoing obligation surviving any termination of this
Agreement); provided, however, that Buyer shall not be liable for
discovering conditions at the Property which it did not cause or
otherwise exacerbate. In no event shall Buyer make any intrusive
physical testing (environmental, structural or otherwise) at the
Property (such as soil borings or the like) without Seller's
consent (and shall in all events promptly return the Property to
its prior condition and repair thereafter). So long as Seller
makes any such representative reasonably available (which Seller
agrees to do during normal business hours provided Buyer has
given Seller twenty-four (24) hours notice thereof), Seller shall
have the right, at its option, to cause a representative of
Seller to be present at all inspections, reviews, tenant
interviews and examinations conducted hereunder. Unless
otherwise required by law, Buyer shall keep all information or
data received or discovered in connection with any of the
inspections, reviews or examinations strictly confidential;
provided, however, that Buyer shall be entitled to disclose such
information to Buyer's attorneys, accountants, consultants and
prospective debt and equity financing sources who reasonably need
to be informed in connection with Buyer's determinations
hereunder (and who shall, in turn, be required to keep such
information confidential). If, on or before the expiration of
the Due Diligence Period, based upon such review, examination or
inspection, Buyer shall determine that it intends to proceed with
the acquisition of the Property, then Buyer shall promptly notify
Seller and Escrow Holder of such determination in writing (such
notice being herein called the "Approval Notice")(and thereafter,
Buyer shall have no further right to terminate this Agreement
pursuant to this paragraph 4B). If, however, on or before the
expiration of the Due Diligence Period, (i) based upon its
review, examination or inspection, Buyer shall determine that it
no longer intends to acquire the Property, or (ii) if Buyer shall
fail to deliver the Approval Notice to Seller, and instructions
to deliver the entire Escrow Deposit to Seller on or before the
expiration of the Due Diligence Period pursuant to this paragraph
4B (in which case Buyer shall be deemed to have determined that
it no longer intends to acquire the Property), this Agreement,
and the obligations of the parties, shall terminate and the
Escrow Deposit shall be returned to Buyer.
C. Estoppel Certificates. Receipt of estoppel
certificates ("Tenant Estoppel Certificates"), dated not more
than twenty-five (25) days prior to the Closing Date, from a
sufficient numbers of tenants at the Property so that Tenant
Estoppel Certificates shall be received with respect to not less
than 85% of the net rentable square feet of space covered by
leases in effect as of the date hereof, shall be a condition
precedent to Buyer's obligation to purchase the Property
hereunder. Each Tenant Estoppel Certificate shall either be
substantially in the form provided in Exhibit "C" attached hereto
and made a part hereof or in the form, if any, prescribed in the
applicable tenant lease; provided, however, that Seller shall
reasonably cooperate with Buyer in the event that Buyer's lender
requires a different form. Seller's sole obligation hereunder
shall be to utilize commercially reasonable efforts to obtain a
Tenant Estoppel Certificate from each tenant at the Property
(such reasonable efforts obligations not including any obligation
to institute legal proceedings or to expend monies therefor), but
such obligation shall not affect the provision of such Tenant
Estoppel Certificates as a condition precedent to closing.
D. Performance by Seller. The performance and observance,
in all material respects, by Seller of all covenants and
agreements of this Agreement to be performed or observed by
Seller prior to or on the Closing Date shall be a condition
precedent to Buyer's obligation to purchase the Property. In
addition, in the event that the "Seller Closing Certificate" (as
hereinafter defined) shall disclose any material adverse changes
in the representations and warranties of Seller contained in
paragraph 7A below which are not otherwise permitted or
contemplated by the terms of this Agreement, then Buyer shall
have the right, in its sole and absolute discretion, to terminate
this Agreement. Buyer shall have the option to waive the
condition precedent set forth in this paragraph 4E by written
notice to Seller. In the event of such waiver, such condition
shall be deemed satisfied.
E. Performance by Buyer. The performance and observance,
in all material respects, by Buyer of all covenants and
agreements of this Agreement to be performed or observed by it
prior to or on the Closing Date shall be a condition precedent to
Seller's obligation to sell the Property. In addition, in the
event that the "Buyer Closing Certificate" (as hereinafter
defined) shall disclose any material adverse changes in the
representations and warranties of Buyer contained in paragraph 7B
below which are not permitted or contemplated by the terms of
this Agreement, then Seller shall have the right, in its sole and
absolute discretion, to terminate this Agreement. Seller shall
have the option to waive the condition precedent set forth in
this paragraph 4D by written notice to Buyer. In the event of
such waiver, such condition shall be deemed satisfied.
5. Closing Procedure Transactions. The sale and purchase
herein provided shall be consummated at a closing conference
("Closing Conference"), which shall be held on the Closing Date
at the offices of Seller's counsel, Pircher, Xxxxxxx & Xxxxx at
0000 Xxxxxx xx xxx Xxxxx, Xxxxx 0000, Xxx Xxxxxxx, Xxxxxxxxxx
00000, or through escrow through the mail. As used herein,
"Closing Date" means June 25, 1997, or such earlier date as may
be agreed upon by Buyer and Seller in writing.
A. Escrow. By the Closing Date, the parties shall deliver
to Escrow Holder, the following: (1) by Seller, a duly executed
and acknowledged original grant deed ("Deed") in favor of Buyer,
in the form of Exhibit "D" attached hereto and made a part
hereof, and (2) by Buyer, the Closing Payment in immediately
available federal funds. Such deliveries shall be made pursuant
to escrow instructions ("Escrow Instructions") to be executed
among Buyer, Seller and Escrow Holder in form reasonably
acceptable to such parties in order to effectuate the intent
hereof. The conditions to the closing of such escrow shall
include the Escrow Holder's receipt of the Deed, the Closing
Payment, the commitment of the Title Company to issue the Owner's
Policy in the form specified in paragraph 4A(2) hereof, and an
authorization notice from each of Buyer and Seller (and each of
Buyer and Seller shall be obligated to deliver such authorization
notice at the Closing Conference as soon as it is reasonably
satisfied that the other party is in a position to deliver the
items to be delivered by such other party under subparagraph B
below).
B. Delivery to Parties. Upon the satisfaction of the
conditions set forth in the Escrow Instructions, then on the
Closing Date (1) the Deed shall be delivered to Buyer by Title
Company's depositing the same for recordation, (2) the Closing
Payment (and the Escrow Deposit) shall be delivered to Seller by
and through Escrow Holder, and (3) at the Closing Conference, the
following items shall be delivered:
(1) Seller Deliveries. Seller shall deliver to Buyer the
following:
(a) A duly executed and acknowledged xxxx of sale,
assignment and assumption agreement ("Assignment and Assumption
Agreement") in the form of Exhibit "E" attached hereto and made a
part hereof;
(b) A certificate of Seller ("Seller Closing Certificate")
updating the representations and warranties contained in
paragraph 7A hereof to the Closing Date and noting any changes
thereto;
(c) Duly executed and acknowledged certificates regarding
the "non-foreign" status of Seller satisfying both federal and
state law requirements;
(d) Evidence reasonably satisfactory to Buyer and Escrow
Holder respecting the due organization of Seller and the due
authorization and execution of this Agreement and the documents
required to be delivered hereunder; and
(e) Such additional documents as may be reasonably required
by Buyer and Title Company in order to consummate the
transactions hereunder (provided the same do not increase the
costs to, or liability or obligations of, Seller in a manner not
otherwise provided for herein).
(2) Buyer Deliveries. Buyer shall deliver to Seller the
following:
(a) A duly executed and acknowledged Assignment and
Assumption Agreement;
(b) A certificate of Buyer ("Buyer Closing Certificate")
updating the representations and warranties contained in
paragraph 7B hereof to the Closing Date and noting any changes
thereto;
(c) Evidence reasonably satisfactory to Seller and Escrow
Holder respecting the due organization of Buyer and the due
authorization and execution of this Agreement and the documents
required to be delivered hereunder; and
(d) Such additional documents as may be reasonably required
by Seller and Title Company in or to consummate the transactions
hereunder (provided the same do not increase the costs to, or
liability or obligations of, Buyer in a manner not otherwise
provided for herein).
C. Closing Costs. Seller shall pay (i) the documentary or
transfer taxes attributable to the Deed, (ii) the title insurance
premiums (at a rate not in excess of standard issue rates)
attributable to standard CLTA coverage respecting the Owner's
Policy, and (iii) the costs of the Survey. Buyer shall pay all
title insurance premiums attributable to the Owner's Policy in
excess of standard CLTA coverage, as well as any costs
attributable to ALTA coverage in connection therewith or for
other so-called "extended coverage" or for any endorsements to
the Owner's Policy, to the extent any of the foregoing is
requested by Buyer (provided, however, that Seller shall bear the
cost of such curative endorsements that Seller agrees in writing
to pay for based on Buyer's objections, it being expressly
understood and agreed that Seller has the right, but not the
obligation, to agree to pay for such curative endorsements), all
costs and expenses related to Buyer's due diligence examinations,
reviews and inspections, and all intangible, sales or use taxes
attributable to the transactions hereunder. Seller and Buyer
shall each pay one-half of the cost of recording the Deed and any
closing escrow charges. Seller and Buyer shall each pay its own
attorney's fees and expenses and its own respective shares of
prorations as hereinafter provided.
D. Prorations.
(1) Items to be Prorated. The following shall be prorated
between Seller and Buyer as of the Closing Date:
(a) All real estate taxes and assessments on the Property
for the current year. In no event shall Seller be charged with
or be responsible for any increase in the taxes on the Property
resulting from the sale of the Property or from any improvements
made or leases entered into on or after the Closing Date. In the
event that any assessments on the Property are payable in
installments, then the installment for the current period shall
be prorated (with Buyer assuming the obligation to pay any
installments due after the Closing Date). Seller shall be
obligated to pay for those taxes accruing during its term of
ownership of the Property, regardless of when the bills for such
taxes are received.
(b) All fixed and additional rentals under the Leases and
other tenant charges. Seller shall deliver or provide a credit
in an amount equal to all prepaid rentals for periods after the
Closing Date and all security deposits (to the extent the
foregoing were made by tenants under the tenant leases and are
not applied or forfeited prior to the Closing Date in accordance
with such tenant leases in Seller's normal course of business as
more particularly set forth in paragraph 7D(3) below) to Buyer on
the Closing Date. Rents which are delinquent as of the Closing
Date shall not be prorated on the Closing Date. Buyer shall
include such delinquencies in its normal billing and shall
diligently pursue the collection thereof in good faith after the
Closing Date (but Buyer shall not be required to litigate or
declare a default in any Lease). To the extent Buyer receives
rents on or after the Closing Date, such payments shall be
applied first toward then current rent owed to Buyer in
connection with the applicable Lease for which such payments are
received, and any excess monies received shall be applied toward
the payment of any delinquent rents, with Seller's share thereof
being promptly delivered to Seller. Buyer may not waive any
delinquent rents nor modify a Lease so as to reduce or otherwise
affect amounts owed thereunder for any period in which Seller is
entitled to receive a share of charges or amounts without first
obtaining Seller's written consent. Seller may not pursue any
remedy against any tenant which is still a tenant of the Property
as of the Closing Date without first obtaining Buyer's written
consent. With respect to delinquent rents and any other amounts
or other rights of any kind respecting tenants who are no longer
tenants of the Property as of the Closing Date, Seller shall
retain all rights relating thereto.
(c) All payments due under "Service Agreements" (as
hereinafter defined) which are being assigned to, and assumed by,
Buyer at Closing.
(d) All utility costs and other normal and customary
operating expenses.
(2) Calculation. The prorations and payments shall be made
on the basis of a written statement submitted to Buyer and Seller
by Escrow Holder prior to the Close of Escrow and approved by
Buyer and Seller. In the event any prorations or apportionments
made under this subparagraph D shall prove to be incorrect for
any reason, then any party shall be entitled to an adjustment to
correct the same. Any item which cannot be finally prorated
because of the unavailability of information shall be tentatively
prorated on the basis of the best data then available and
reprorated when the information is available. The obligations of
Seller and Buyer under this paragraph 5D(2) shall survive the
closing.
6. Condemnation or Destruction of Property. In the event
that, after the date hereof but prior to the Closing Date, either
any portion of the Property is taken pursuant to eminent domain
proceedings or any of the improvements on the Property are
damaged or destroyed by any casualty, Seller shall have no
obligation to repair or replace any such damage or destruction.
Seller shall, upon consummation of the transaction herein
provided, assign to Buyer all claims of Seller respecting any
condemnation or casualty insurance coverage, as applicable, and
all condemnation proceeds or proceeds from any such casualty
insurance received by Seller on account of any casualty (the
damage from which shall not have been repaired by Seller prior to
the Closing Date), as applicable. In connection with any
assignment of insurance proceeds hereunder, Seller shall credit
Buyer with an amount equal to the applicable deductible amount
under Seller's insurance; provided, however, if the amount of
such deductible shall exceed $100,000, Seller shall have the
right to terminate this Agreement by notice to Buyer given on or
before the Closing Date (whereupon the Escrow Deposit shall be
returned to Buyer). In the event the condemnation award or the
cost of repair of damage to the Property on account of a
casualty, as applicable, shall exceed $100,000 (or if a casualty
is uninsured, and Seller does not elect to credit Buyer with an
amount equal to the cost to repair such uninsured casualty,
Seller having the right, but not the obligation, to do so), Buyer
may, at its option, terminate this Agreement by notice to Seller,
given on or before the Closing Date and receive a refund of the
Escrow Deposit.
7. Representations, Warranties and Covenants.
A. Representations, Warranties and Covenants of Seller.
(1) General Disclaimer. Except as specifically set forth
in paragraph 7A(2) below or in the documents delivered by Seller
at closing pursuant to paragraph 5B(1) hereof, the sale of the
Property hereunder is and will be made on an "as is" basis,
without representations and warranties of any kind or nature,
express, implied or otherwise, including, but not limited to, any
representation or warranty concerning title to the Property, the
physical condition of the Property (including, but not limited
to, the condition of the soil or the Improvements), the
environmental condition of the Property (including, but not
limited to, the presence or absence of hazardous substances on or
respecting the Property), the compliance of the Property with
applicable laws and regulations (including, but not limited to,
zoning and building codes or the status of development or use
rights respecting the Property), the financial condition of the
Property or any other representation or warranty respecting
income, expenses, charges, liens or encumbrances, rights or
claims on, affecting or pertaining to the Property or any part
thereof. Buyer acknowledges that, during the Due Diligence
Period, Buyer will examine, review and inspect all matters which
in Buyer's judgment bear upon the Property and its value and
suitability for Buyer's purposes. Except as to matters
specifically set forth in paragraph 7A(2) below or in the
documents delivered by Seller at closing pursuant to paragraph
5B(1) hereof, Buyer will acquire the Property solely on the basis
of its own physical and financial examinations, reviews and
inspections and the title insurance protection afforded by the
Owner's Policy.
(2) Limited Representations and Warranties of Seller.
Seller hereby represents and warrants to Buyer that, except as
set forth in Exhibit "F" attached hereto and made a part hereof,
Seller has no knowledge that any of the following statements is
untrue, incomplete or misleading in any material manner (and, for
this purpose, Seller's knowledge shall mean the present actual
knowledge of Xxxxx X. Xxxxxxx only, who is Vice President of JMB
Realty Corporation and partnership coordinator who has overseen,
and is presently overseeing and has the overall responsibility
for, the investment of Seller in the Property (after having made
reasonable inquiry of Seller's third party property manager with
respect to the representations and warranties contained in this
Agreement)):
(a) List of Leases. Attached as Exhibit "G" and made a
part hereof is a true, complete and accurate list, as of the date
thereof, of all tenant leases respecting the Property ("List of
Leases"), and Seller is not in monetary default or material
non-monetary default under any of such tenant leases that remains
uncured.
(b) Litigation. There is no pending or threatened (in
writing) action, litigation, condemnation, eminent domain
proceeding or other proceeding against the Property or against
Seller (or any of its partners or principals) with respect to the
Property.
(c) Compliance. Seller has received no written notice from
any governmental authority having jurisdiction over the Property
to the effect that the Property is not in compliance with
applicable laws and ordinances.
(d) Service Agreements. Other than those which are
cancelable on 30 days' notice without payment of any fees, there
are no service agreements or contracts ("Service Agreements") or
other agreements (other than as expressly set forth in this
Agreement) relating to the Property which will be in force on the
Closing Date, except as described in Exhibit "H" attached hereto
and made a part hereof, and Seller is not in monetary default or
material non-monetary default thereunder that remains uncured.
(e) Due Authority. This Agreement and all agreements,
instruments and documents herein provided to be executed or to be
caused to be executed by Seller are and on the Closing Date will
be duly authorized, executed and delivered by and are binding
upon Seller. Seller is a limited partnership, duly organized and
validly existing under the laws of the State of Illinois, and is
duly authorized and qualified to do all things required of it
under this Agreement. Seller has the legal capacity and
authority to enter into this Agreement and consummate the
transactions herein provided without the consent or joinder of
any other party (except as otherwise set forth in this
Agreement).
(f) Environmental Matters. Except as set forth in the
reports described in Exhibit "I" attached hereto and made a part
hereof (the "Environmental Reports"), Seller has received no
written notice of the existence, deposit, storage, removal,
burial or discharge of any material known to Seller to be a
"Hazardous Material" at, upon, under or within the Property, in
an amount which violate any "Environmental Law" (as hereinafter
defined). The term "Hazardous Material" shall mean (i) asbestos
and any chemicals, flammable, toxic or corrosive substances or
explosives, any radioactive materials (including radon), any
hazardous wastes or substances which have, as of the date hereof,
been determined by any applicable Federal, State or local
government law to be hazardous or toxic by the U.S. Environmental
Protection Agency, the U.S. Department of Transportation, and/or
any instrumentality now or hereafter authorized to regulate
materials and substances in the environment which has
jurisdiction over the Property ("Environmental Agency"), and (ii)
any oil, petroleum or petroleum derived substance, any drilling
fluids, produced waters and other wastes associated with the
exploration, development or production of crude oil, which
materials listed under items (i) and (ii) above cause the
Property (or any part thereof) to be in material violation of any
applicable environmental laws or the regulations of any
Environmental Agency ("Environmental Law"). Buyer hereby
acknowledges that it is acquiring the Property subject to the
matters disclosed in the Environmental Reports, and Buyer shall
at Closing, assume the obligations for, and release Seller from
any liability relating to (whether under local, state or federal
law), any matters disclosed in the Environmental Reports, but not
any other liability relating to Hazardous Materials not disclosed
in the Environmental Reports.
(g) Binding Effect of Documents. This Agreement and the
other documents to be executed by Seller pursuant hereto, upon
execution and delivery thereof by Seller, will have been duly
entered into by Seller, and will constitute legal, valid and
binding obligations of Seller, enforceable against Seller in
accordance with their respective terms.
(h) Conflict With Existing Agreements and Laws. Neither
the execution of this Agreement nor the consummation by Seller of
the transactions contemplated hereby will, (i) result in the
breach of the terms or provisions of or constitute a default
under or result in the termination of any contract or agreement
to which Seller is a party or by which the Property is bound;
(ii) constitute a violation of any law, statute, regulation or
ordinance applicable to Seller or the Property; or (iii) result
in the creation of any lien, charge or encumbrance upon the
Property or any part thereof.
(i) Agreements of Sale and Options. There are no
outstanding liens or rights of third parties to acquire any
interest in the Property or any portion thereof.
(j) Bankruptcy. There are no attachments, executions,
assignments for the benefit of creditors, receiverships,
conservatorships or voluntary or involuntary proceedings in
bankruptcy or pursuant to any other debtor relief laws filed by
Seller or pending or threatened in writing against Seller or the
Property.
(k) Knowledge. Xxxxx X. Xxxxxxx is the Vice President of
JMB Realty Corporation and partnership coordinator overseeing
Seller's ownership of the Property, has held such position since
Seller acquired the Property (except for a two-year period when
an individual no longer employed by JMB Realty Corporation held
such position), and is the most knowledgeable individual within
JMB Realty Corporation regarding the Property.
B. Representations and Warranties of Buyer. Buyer
represents and warrants to Seller as follows: This Agreement and
all agreements, instruments and documents herein provided to be
executed or to be caused to be executed by Buyer are and on the
Closing Date will be duly authorized, executed and delivered by
and are binding upon Buyer; Buyer is a general partnership, duly
organized and validly existing and in good standing under the
laws of the State of California, and is duly authorized and
qualified to do all things required of it under this Agreement;
and Buyer has the legal capacity and authority to enter into this
Agreement and consummate the transactions herein provided without
the consent or joinder of any other party (except as otherwise
set forth in this Agreement).
C. Survival. Any cause of action of a party for a breach
of the foregoing representations and warranties shall survive
until December 15, 1997, at which time such representations and
warranties (and any cause of action resulting from a breach
thereof not then in litigation) shall terminate. Notwithstanding
the foregoing, if Buyer shall have actual knowledge as of the
Closing Date that any of the representations or warranties of
Seller contained herein are false or inaccurate or that Seller is
in breach or default of any of its obligations under this
Agreement, and Buyer nonetheless closes the transactions
hereunder and acquires the Property, then Seller shall have no
liability or obligation respecting such false or inaccurate
representations or warranties or other breach or default (and any
cause of action resulting therefrom shall terminate upon such
closing hereunder).
D. Interim Covenants of Seller. Until the Closing Date or
the sooner termination of this Agreement:
(1) Seller shall maintain the Property in the same manner
as prior hereto pursuant to its normal course of business,
including maintaining existing insurance policies, which existing
insurance policies are listed on Exhibit "K" attached hereto and
made a part hereof (or insurance policies consisting of
substantially similar coverage) with respect to the Property
(such maintenance obligations not including extraordinary capital
expenditures or expenditures not incurred in such normal course
of business), subject to reasonable wear and tear and further
subject to destruction by casualty or other events beyond the
control of Seller.
(2) Seller shall not enter into any additional service
contracts or other similar agreements without the prior written
consent of Buyer, except those deemed reasonably necessary by
Seller which are cancelable without payment of any fee on 30
days' notice (and Seller shall promptly provide Buyer with copies
of all such additional service contracts).
(3) Seller shall continue to offer the Property for lease
and deal with tenants in the same manner as prior hereto pursuant
to its normal course of business and shall keep Buyer reasonably
informed as to the status of leasing prior to the Closing Date.
After the date hereof, Seller shall not apply or declare a
tenant's security deposit forfeited due to such tenant's failure
to pay fixed or additional rentals or other tenant charges due
under such tenant's lease, until the date which is ten (10)
business days after the expiration of any applicable grace period
(assuming such grace period is at least ten (10) calendar days in
length) for such payment in such tenant's lease. In addition,
after the date hereof, Seller shall not enter into any new leases
or modifications of existing leases thereafter without the
written consent of Buyer. Such consent will not be unreasonably
withheld or materially delayed. If Buyer fails to deliver its
consent or disapproval of a request by Seller to enter into a new
lease or to modify an existing Lease on or before the date which
is two (2) business days following Buyer's receipt after Seller's
request therefor, Buyer shall be deemed to have approved the new
lease or modification of existing lease, as applicable. In the
event that Seller enters into a new lease or modifies an existing
lease after the date hereof without the consent of Buyer, Buyer
shall have the right to terminate this Agreement by notifying
Seller of its exercise of such right by delivering to Seller
written notice thereof within five (5) days after Seller notifies
Buyer in writing that Seller has entered into such new lease or
modification. In the event of the delivery by Buyer to Seller of
such written notice, this Agreement, and the obligations of the
parties hereunder, shall terminate and the Escrow Deposit shall
be returned to Buyer. If Buyer shall fail to deliver such
written notice on or before the end of such five (5) day period,
Buyer shall be deemed to have agreed that the new lease or
modification is or are acceptable to Buyer and that Buyer intends
to proceed with the acquisition of the Property (and, thereafter,
Buyer shall have no further right to terminate this Agreement as
a result of such new lease or modification). Notwithstanding
anything herein to the contrary, Buyer shall bear all costs and
expenses related to any new leases or modifications of existing
leases entered into after the expiration of the Due Diligence
Period (unless Buyer shall have theretofore failed to deliver an
Approval Notice pursuant to paragraph 4B hereof).
8. Indemnification.
A. By Buyer. Buyer shall hold harmless, indemnify and
defend Seller and its constituent partners from and against:
(1) any and all third party claims for Buyer's torts or breaches
of contract related to the Property and occurring on or after the
Closing Date, (2) any and all loss, damage and third party claims
in any way arising from Buyer's inspections or examinations of
the Property prior to the Closing Date, and (3) all costs and
expenses, including reasonable attorney's fees incurred by Seller
as a result of the foregoing.
B. By Seller. Seller shall hold harmless, indemnify and defend
Buyer and its constituent partners from and against: (1) any
and all third party claims for Seller's torts or breaches of
contract related to the Property and occurring prior to the
Closing Date, and (2) all costs and expenses, including
reasonable attorney's fees incurred by Buyer as a result of the
foregoing. The foregoing indemnity shall not cover any matters
relating to title or marketability of the Property (Buyer relying
on the coverage provided by the Owner's Policy as to such
matters.)
C. Generally. Each indemnification under this Agreement
shall be subject to the following provisions: The indemnitee
shall notify indemnitor of any such claim against indemnitee
within thirty (30) days after it has notice of such claim, but
failure to notify indemnitor shall in no case prejudice the
rights of indemnitee under this Agreement unless indemnitor shall
be prejudiced by such failure and then only to the extent of such
prejudice. Should indemnitor fail to discharge or undertake to
defend indemnitee against such liability within 10 days after the
indemnitee gives the indemnitor written notice of the same, then
indemnitee may settle such liability, and indemnitor's liability
to indemnitee shall be conclusively established by such
settlement, the amount of such liability to include both the
settlement consideration and the reasonable costs and expenses,
including attorneys' fees, incurred by indemnitee in effecting
such settlement.
9. DISPOSITION OF DEPOSITS. IF THE TRANSACTION HEREIN
PROVIDED SHALL NOT BE CLOSED BY REASON OF SELLER'S DEFAULT UNDER
THIS AGREEMENT OR THE FAILURE OF SATISFACTION OF THE CONDITIONS
DESCRIBED IN PARAGRAPH 4 HEREOF OR THE TERMINATION OF THIS
AGREEMENT IN ACCORDANCE WITH PARAGRAPH 6 HEREOF, AND BUYER SHALL
HAVE FULLY PERFORMED ITS OBLIGATIONS HEREUNDER AND SHALL BE
READY, WILLING AND ABLE TO CLOSE (ALTHOUGH BUYER SHALL NOT BE
REQUIRED TO DEPOSIT WITH ESCROW HOLDER THE CLOSING PAYMENT SO
LONG AS BUYER IS ABLE TO PROVIDE REASONABLE EVIDENCE OF ITS
ABILITY TO DEPOSIT SUCH SUM), THEN THE ESCROW DEPOSIT SHALL BE
RETURNED TO BUYER, AND NEITHER PARTY SHALL HAVE ANY FURTHER
OBLIGATION OR LIABILITY TO THE OTHER; PROVIDED, HOWEVER, IF THE
TRANSACTIONS HEREUNDER SHALL FAIL TO CLOSE SOLELY BY REASON OF
SELLER'S DEFAULT, AND BUYER SHALL HAVE FULLY PERFORMED ITS
OBLIGATIONS HEREUNDER AND SHALL BE READY, WILLING AND ABLE TO
CLOSE (ALTHOUGH BUYER SHALL NOT BE REQUIRED TO DEPOSIT WITH
ESCROW HOLDER THE CLOSING PAYMENT SO LONG AS BUYER IS ABLE TO
PROVIDE REASONABLE EVIDENCE OF ITS ABILITY TO DEPOSIT SUCH SUM),
THEN BUYER SHALL BE ENTITLED TO SPECIFICALLY ENFORCE THIS
AGREEMENT AND FILE A LIS PENDENS AGAINST THE PROPERTY IN
CONNECTION WITH SUCH SPECIFIC ENFORCEMENT NOT LATER THAN THIRTY
(30) DAYS AFTER SELLER'S DEFAULT (BUT NO OTHER ACTION, FOR
DAMAGES OR OTHERWISE, SHALL BE PERMITTED). IN THE EVENT THE
TRANSACTION HEREIN PROVIDED SHALL NOT CLOSE SOLELY BY REASON OF
BUYER'S DEFAULT UNDER THIS AGREEMENT, AND SELLER SHALL HAVE FULLY
PERFORMED ITS OBLIGATIONS HEREUNDER AND SHALL BE READY, WILLING
AND ABLE TO CLOSE, THEN THE ESCROW DEPOSIT SHALL BE DELIVERED TO
SELLER AS FULL COMPENSATION AND LIQUIDATED DAMAGES UNDER AND IN
CONNECTION WITH THIS AGREEMENT. IN THE EVENT THE TRANSACTION
HEREIN PROVIDED SHALL CLOSE, THE ESCROW DEPOSIT SHALL BE APPLIED
AS A PARTIAL PAYMENT OF THE PURCHASE PRICE. IN CONNECTION WITH
THE FOREGOING, THE PARTIES RECOGNIZE THAT SELLER WILL INCUR
EXPENSE IN CONNECTION WITH THE TRANSACTION CONTEMPLATED BY THIS
AGREEMENT AND THAT THE PROPERTY WILL BE REMOVED FROM THE MARKET;
FURTHER, THAT IT IS EXTREMELY DIFFICULT AND IMPRACTICABLE TO
ASCERTAIN THE EXTENT OF DETRIMENT TO SELLER CAUSED BY THE BREACH
BY BUYER UNDER THIS AGREEMENT AND THE FAILURE OF THE CONSUMMATION
OF THE TRANSACTION CONTEMPLATED BY THIS AGREEMENT OR THE AMOUNT
OF COMPENSATION SELLER SHOULD RECEIVE AS A RESULT OF BUYER'S
BREACH OR DEFAULT. IN THE EVENT THE SALE OF THE PROPERTY SHALL
NOT BE CONSUMMATED SOLELY ON ACCOUNT OF BUYER'S DEFAULT, AND
SELLER SHALL HAVE FULLY PERFORMED ITS OBLIGATIONS HEREUNDER AND
SHALL BE READY, WILLING AND ABLE TO CLOSE, THEN THE RETENTION OF
THE ESCROW DEPOSIT SHALL BE SELLER'S SOLE AND EXCLUSIVE REMEDY
UNDER THIS AGREEMENT BY REASON OF SUCH DEFAULT, SUBJECT TO THE
PROVISIONS OF PARAGRAPH 10I HEREOF.
Seller's Initials Buyer's Initials
10. Miscellaneous.
A. Brokers.
(1) Except as provided in subparagraph (2) below, Seller
represents and warrants to Buyer, and Buyer represents and
warrants to Seller, that no broker or finder has been engaged by
it, respectively, in connection with any of the transactions
contemplated by this Agreement or to its knowledge is in any way
connected with any of such transactions. In the event of a claim
for broker's or finder's fee or commissions in connection
herewith, then Seller shall indemnify and defend Buyer from the
same if it shall be based upon any statement or agreement alleged
to have been made by Seller, and, except for any claims by Broker
which are Seller's responsibility hereunder, Buyer shall
indemnify and defend Seller from the same if it shall be based
upon any statement or agreement alleged to have been made by
Buyer. The indemnification obligations under this paragraph 10
A(1) shall survive the closing of the transactions hereunder or
the earlier termination of this Agreement.
(2) If and only if the sale contemplated herein closes,
Seller agrees to pay a brokerage commission to Xxxxxxx Xxxxx, LLC
and CB Commercial (collectively, the "Brokers") pursuant to a
separate written agreement. The foregoing payment shall be the
sole commissions, fees or payments payable to Brokers in
connection with the transactions hereunder. Under no
circumstances shall Buyer be obligated to pay compensation to
Brokers in connection with the transactions hereunder.
B. Limitation of Liability.
(1) Notwithstanding anything to the contrary contained
herein, if the closing of the transactions hereunder shall have
occurred (and Buyer shall not have waived, relinquished or
released any applicable rights in further limitation), the
aggregate liability of Seller arising pursuant to or in
connection with the representations, warranties,
indemnifications, covenants or other obligations (whether express
or implied) of Seller under this Agreement (or any document
executed or delivered in connection herewith) shall not exceed
$500,000.
(2) Except as specifically set forth in paragraph
10B(3) below, no constituent partner in or agent of Seller, nor
any advisor, trustee, director, officer, employee, beneficiary,
shareholder, participant, representative or agent of any
corporation or trust that is or becomes a constituent partner in
Seller (including, but not limited to, JMB Realty Corporation and
the individual(s) specified in paragraph 7A(2) above) shall have
any personal liability, directly or indirectly, under or in
connection with this Agreement or any agreement made or entered
into under or pursuant to the provisions of this Agreement, or
any amendment or amendments to any of the foregoing made at any
time or times, heretofore or hereafter, and Buyer and its
successors and assigns and, without limitation, all other persons
and entities, shall look solely to Seller's assets for the
payment of any claim or for any performance, and Buyer, on behalf
of itself and its successors and assigns, hereby waives any and
all such personal liability. Notwithstanding anything to the
contrary contained in this Agreement, neither the negative
capital account of any constituent partner in Seller (or in any
other constituent partner of Seller), nor any obligation of any
constituent partner in Seller (or in any other constituent
partner of Seller) to restore a negative capital account or to
contribute capital to Seller (or to any other constituent partner
of Seller), shall at any time be deemed to be the property or an
asset of Seller or any such other constituent partner (and
neither Buyer nor any of its successors or assigns shall have any
right to collect, enforce or proceed against or with respect to
any such negative capital account of partner's obligation to
restore or contribute).
(3) Seller agrees and covenants to maintain at least
$500,000 in cash or liquid assets in its partnership account for
purposes of satisfying its obligations under this Agreement until
the later of (i) December 15, 1997, and (ii) the date of final
resolution of any claim made in writing to Seller by Buyer prior
to December 15, 1997 (and as to which litigation with respect
thereto is commenced within thirty (30) days after December 15,
1997). The foregoing obligation of Seller shall be guaranteed by
JMB Realty Corporation. Notwithstanding the foregoing
provisions, Buyer acknowledges that Seller may reduce the
$500,000 reserve provided for herein but that, pursuant to the
guaranty set forth in this paragraph 10B(3), JMB shall be liable
for the amount by which $500,000 exceeds the amount so retained
by Seller.
C. Entire Agreement. This Agreement contains the entire
agreement between the parties respecting the matters herein set
forth and supersedes all prior agreements between the parties
hereto respecting such matters. This Agreement may not be
modified or amended except by written agreement signed by both
parties.
D. Time of the Essence. Time is of the essence of this
Agreement.
E. Interpretation. Paragraph headings shall not be used
in construing this Agreement. Each party acknowledges that such
party and its counsel, after negotiation and consultation, have
reviewed and revised this Agreement. As such, the terms of this
Agreement shall be fairly construed and the usual rule of
construction, to the effect that any ambiguities herein should be
resolved against the drafting party, shall not be employed in the
interpretation of this Agreement or any amendments, modifications
or exhibits hereto or thereto.
F. Governing Law. This Agreement shall be construed and
enforced in accordance with the laws of the State of California.
G. Successors and Assigns. Buyer may not assign or
transfer its rights or obligations under this Agreement without
the prior written consent of Seller (in which event such
transferee shall assume in writing all of the transferor's
obligations hereunder, but such transferor shall not be released
from its obligations hereunder); provided, however, Buyer may
assign its interest in this Agreement, without the prior written
consent of Seller, to a limited partnership, general partnership
or limited liability company in which Buyer (or its affiliate,
Cornerstone Ventures) is the managing general partner or managing
member, as applicable, and has not less than a 10% interest in
the profits in such limited partnership, general partnership or
limited liability company. No consent given by Seller to any
transfer or assignment of Buyer's rights or obligations hereunder
shall be construed as a consent to any other transfer or
assignment of Buyer's rights or obligations hereunder. No
transfer or assignment in violation of the provisions hereof
shall be valid or enforceable. Subject to the foregoing, this
Agreement and the terms and provisions hereof shall inure to the
benefit of and be binding upon the successors and assigns of the
parties.
H. Notices. Any notice which a party is required or may
desire to give the other shall be in writing and shall be sent by
personal delivery or by mail (either [i] by United States
registered or certified mail, return receipt requested, postage
prepaid, [ii] by Federal Express or similar generally recognized
overnight carrier regularly providing proof of delivery),
addressed as follows (subject to the right of a party to
designate a different address for itself by notice similarly
given):
To Buyer:
Xxxx Cornerstone II
0000 XxxXxxxxx Xxxxxxxxx, Xxx. 000
Xxxxxxx Xxxxx, Xxxxxxxxxx 00000
Attention: Xx. Xxxxx X. Xxxx
Facsimile No.: (000) 000-0000
With Copy To:
Xxxxxx, Xxxxx & Bockius LLP
000 Xxxxx Xxxxx Xxxxxx, Xxx. 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxx, Esq.
Facsimile No.: (000) 000-0000
To Seller:
Carlyle Income Plus, Ltd.
c/o JMB Realty Corporation
000 Xxxxx Xxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx X. Xxxxxxx
Facsimile No.: (000) 000-0000
With Copies To:
Pircher, Xxxxxxx & Xxxxx
1999 Avenue of the Stars
Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Real Estate Notices (GML)
Facsimile No.: (000) 000-0000
And To:
Xxxxxxx Xxxxx, LLC
Three First Xxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xx. Xxxxx X. Xxxxx
Facsimile No.: (000) 000-0000
Any notice so given by mail shall be deemed to have been given as
of the date of delivery (whether accepted or refused) established
by U.S. Post Office return receipt or the overnight carrier's
proof of delivery, as the case may be. Notices may be given by
facsimile transmission and shall be deemed given upon the actual
receipt of the same by the individual to which they are
addressed, and shall be promptly followed by a hard copy notice
by mail as provided above. Any such notice not so given shall be
deemed given upon receipt of the same by the party to whom the
same is to be given.
I. Legal Costs. The parties hereto agree that they shall
pay directly any and all legal costs which they have incurred on
their own behalf in the preparation of this Agreement, all deeds
and other agreements pertaining to this transaction and that such
legal costs shall not be part of the closing costs. In addition,
if either Buyer or Seller brings any suit or other proceeding
with respect to the subject matter or the enforcement of this
Agreement, the prevailing party (as determined by the court,
agency or other authority before which such suit or proceeding is
commenced), in addition to such other relief as may be awarded,
shall be entitled to recover reasonable attorneys' fees, expenses
and costs of investigation actually incurred. The foregoing
includes, but is not limited to, attorneys' fees, expenses and
costs of investigation (including, without limitation, those
incurred in appellate proceedings), costs incurred in
establishing the right to indemnification, or in any action or
participation in, or in connection with, any case or proceeding
under Chapter 7, 11 or 13 of the Bankruptcy Code (11 United
States Code Sections 101 et seq.), or any successor statutes.
J. Counterparts. This Agreement may be executed in one or
more counterparts, each of which shall be deemed an original, but
all of which shall constitute one and the same document.
K. Reporting Person. Seller and Buyer hereby designate
Escrow Holder as the Real Estate Reporting Person for purposes of
Section 6045 of the Internal Revenue Code; and Escrow Holder, by
its execution below, hereby accepts such appointment.
IN WITNESS WHEREOF, the parties have executed this Agreement
as of the day and year first above written.
CARLYLE INCOME PLUS, LTD.,
an Illinois limited partnership
By: JMB REALTY CORPORATION,
a Delaware corporation,
Corporate General Partner
By: Xxxxx X. Xxxxxxx
Name: XXXXX X. XXXXXXX
Title: Vice President
"Seller"
XXXX CORNERSTONE II,
a California general partnership
By: CORNERSTONE VENTURES, INC.
a California corporation,
General Partner
By: Xxxxx X. Xxxx
Name: XXXXX X. XXXX
Title: Senior Vice President
"Buyer"
ESCROW HOLDER'S ACKNOWLEDGEMENT
The undersigned hereby executes this Agreement to evidence
its agreement to act as Escrow Holder in accordance with the
terms of this Agreement.
Date: April 23, 1997 COMMERCE ESCROW COMPANY,
a California corporation
By: Xxxxx X. Xxxxxxxx
Name: XXXXX X. XXXXXXXX
Title: Escrow Officer
"Escrow Holder"
