EXHIBIT (b) 1
AGREEMENT FOR PURCHASE
AND SALE OF REAL ESTATE
THIS AGREEMENT FOR PURCHASE AND SALE OF REAL ESTATE is entered into as
of August 6, 1996, by and between LINCAM PROPERTIES LTD. SERIES 85, an
Illinois limited partnership (together with its successors and assigns,
"Seller"), LASALLE NATIONAL TRUST, not personally but as Trustee under a
Trust Agreement dated July 19, 1996 and known as Trust No. 120394
("Trustee"), and CENTERPOINT PROPERTIES CORPORATION, an Illinois
corporation ("Beneficiary") (the Trustee and Beneficiary are collectively
referred to herein as "Purchaser").
WITNESSETH:
WHEREAS, Seller owns the land (the "Land") legally described on
Exhibit A attached hereto and made a part hereof, consisting of
approximately 8.13 acres located in the City of Naperville, County of
DuPage, State of Illinois, and the Land is improved with an
office/warehouse building (the "Building") commonly known as 0000 Xxxxxxx
Xxxx Xxxxx, Xxxxxxxxxx, Xxxxxxxx (the Land, together with the Building and
all other improvements located on the Land are collectively referred to
herein as the "Property");
WHEREAS, Purchaser desires to purchase from Seller and Seller desires
to sell to Purchaser all of Seller's right, title and interest in and to
(i) the Property, and (ii) all fixtures and personal property located on
the Property and owned by Seller (if any) on the terms and conditions set
forth below;
NOW THEREFORE, in consideration of the mutual covenants hereinafter
set forth and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereby agree as
follows:
ARTICLE 1
DEFINITIONS
When used herein the following terms shall have the respective
meanings set forth opposite each such term:
1.1 Acts: as defined in Section 9.4 hereof.
1.2 Agreement: this Agreement for Purchase and Sale of Real Estate.
1.3 Building: as defined in the Recitals to this Agreement.
1.4 Business Day: as defined in Section 11.14 hereof.
1.5 City: Naperville, Illinois.
1.6 Closing: as defined in Section 9.1 hereof.
1.7 Closing Date: as defined in Section 9.1 hereof.
1.8 Closing Escrowee: as defined in Section 9.3 hereof.
1.9 Cost Sharing Agreement: shall mean that certain Cost Sharing and
Maintenance Agreement dated July 18, 1988 and recorded with the Recorder of
Deeds of DuPage, County, Illinois on July 22, 1988 as Document No.
R88-080291.
1.10 Cost Sharing Payments: shall mean any amounts paid to Seller, as the
owner of the Property, under the Cost Sharing Agreement.
1.11 County: DuPage County, Illinois.
1.12 Department: as defined in Section 9.4 hereof.
1.13 Xxxxxxx Money: as defined in Section 3.2 hereof.
1.14 Effective Date: as defined in Section 11.17 hereof.
1.15 Environmental Laws: shall mean all statutes specifically described
in Section 1.18 hereof and all other federal, state or local laws,
regulations or orders relating to, or imposing liability or standards of
conduct concerning any Hazardous Materials.
1.16 Escrow: as defined in Section 9.3 hereof.
1.17 Escrow Agreement: as defined in Section 9.3 hereof.
1.18 Hazardous Materials: shall mean any hazardous, toxic or dangerous
substance, material, waste, gas or particulate matter which is defined as
such for purposes of regulation by any local government authority, the
State of Illinois, or the United States government or any agency or
department thereof, including, but not limited to, any material or
substance which is (i) defined as a "hazardous waste", "hazardous
material", "hazardous substance", "extremely hazardous waste", or
"restricted hazardous waste" under any provision of Illinois law, (ii)
petroleum, (iii) asbestos, (iv) polychlorinated biphenyl, (v) radioactive
material, (vi) defined as a "hazardous waste" pursuant to Section 1044 of
the Resource Conservation and Recovery Act, 42 U.S.C. Section 6901 et.seq.
(42 U.S.C. Section 6903), or (vii) defined as a "hazardous substance"
pursuant to Section 101 of the Comprehensive Environmental Response,
Compensation, and Liability Act, 42 U.S.C. Section 9601 et.seq. (42 U.S.C.
Section 9601).
1.19 Land: as defined in the Recitals to this Agreement.
1.20 Landscape Contract: shall mean that certain Landscape Maintenance
Contract dated February 22, 1996 by and between Amli Realty Co. and
Thornapple Maintenance, Inc.
1.21 Lease: shall mean that certain Lease dated November 25, 1985 by and
between Tenant and LaSalle National Bank, not personally, but solely as
Trustee under a Trust Agreement dated November 18, 1985 and known as Trust
No. 110535 (the "Original Landlord", as Seller's predecessor in interest),
as amended by letter agreements between Tenant and Hawthorn Realty Group
dated May 30, 1986, July 1, 1986 and July 22, 1986, and as further amended
by Amendment to Lease dated July 19, 1988 between Tenant and Original
Landlord.
1.22 Lease Payments: shall mean collectively, Rent (as defined in the
Lease) and amounts paid by Tenant under Section 38 of the Lease.
1.23 Permitted Exceptions: as defined in Section 5.2 hereof.
1.24 Property: as defined in the Recitals to this Agreement.
1.25 Purchase Price: as defined in Section 3.1 hereof.
1.26 Purchaser: as defined in the Preamble to this Agreement.
1.27 Reimbursement Amount: as defined in Article 4 hereof.
1.28 Removable Liens: as defined in Section 5.4 hereof.
1.29 Review Period: as defined in Article 4 hereof.
1.30 Seller: as defined in the Preamble to this Agreement.
1.31 Survey: as defined in Section 5.1 hereof.
1.32 Surveyor: Intech Consultants, Inc.
1.33 Taxes: real estate taxes, current installments of regular
assessments, special assessments, sewer charges, and any similar taxes and
charges imposed in respect of
the Property.
1.34 Tenant: shall mean Babson Bros. Co.
1.35 Title Commitment: as defined in Section 5.1 hereof.
1.36 Title Insurer: Chicago Title Insurance Company
1.37 Title Policy: as defined in Section 5.3 hereof.
1.38 Trust: as defined in the Preamble to this Agreement.
1.39 Trustee: as defined in the Preamble to this Agreement.
ARTICLE 2
AGREEMENT TO PURCHASE AND SELL
Purchaser agrees to purchase, and Seller agrees to sell, the Property
at the Purchase Price and on the terms set forth herein. In furtherance
thereof, Seller agrees to convey to the Trust fee simple title to the
Property together with all privileges, rights, easements (including,
without limitation, the easements identified as Parcels 2 and 3 in the
Title Commitment), hereditaments, and appurtenances thereto belonging; and
all right, title and interest of the titleholder thereof in and to any
streets, alleys, passages and other rights-of-way included therein or
adjacent thereto (before or after the vacation thereof) by a recordable
special warranty deed.
ARTICLE 3
PURCHASE PRICE
3.1 Purchase Price. The purchase price (the "Purchase Price") to be paid
by Purchaser to Seller for the Property shall be Six Million Five Hundred
Seventy-Five Thousand and No/100 Dollars ($6,575,000.00).
3.2 Xxxxxxx Money. Prior to the Effective Date, Beneficiary has paid
into a strict joint order escrow with Seller at the Title Insurer the sum
of $100,000.00 as xxxxxxx money (together with any interest earned thereon,
the "Xxxxxxx Money"). The Xxxxxxx Money may be invested by the Title
Insurer as Purchaser directs in United States Treasury Bills or a federally
insured money market account. Seller and Purchaser shall share equally the
cost of the joint order escrow, but Purchaser shall bear the cost of any
investment fee charged by the Title Insurer as escrowee. If this Agreement
is terminated: (a) by Purchaser before the end of the Review Period in
accordance with Article 4 hereof, then, provided Purchaser has complied
with its obligations under the third grammatical paragraph of Article 4
hereof, the Xxxxxxx Money, less the Reimbursement Amount, shall be returned
to Purchaser; (b) because of a breach of this Agreement by Seller, then the
Xxxxxxx Money shall be returned to Purchaser; (c) pursuant to Section 5.4
hereof, then, provided Purchaser has complied with its obligations under
the third grammatical paragraph of Article 4 hereof, the Xxxxxxx Money,
less the Reimbursement Amount, shall be returned to Purchaser; (d) pursuant
to Section 6.1 hereof, then, provided Purchaser has complied with its
obligations under the third grammatical paragraph of Article 4 hereof, the
Xxxxxxx Money shall be returned to Purchaser; or (e) by Purchaser pursuant
to Section 7.3 or Article 8 hereof, then the Xxxxxxx Money shall be
returned to Purchaser. Except as provided in the immediately preceding
sentence, the Xxxxxxx Money shall be non-refundable to Purchaser. The
Xxxxxxx Money shall be applied to the Purchase Price at the Closing.
3.3 Closing Costs. Seller shall pay the cost of: (a) the Title Policy
(including the cost of extended coverage over the standard printed
exceptions and one-half of the cost of the special title endorsements
described in clause (vi) of Section 5.3 hereof); (b) the Survey (except as
provided in Article 4 hereof); (c) any stamp or transfer taxes imposed by
State or County law; and (d) obtaining and recording any releases of any
mortgages, liens or other encumbrances which are not Permitted Exceptions
and for which Seller is obligated to obtain a release under Section 5.4
hereof. Purchaser shall pay the cost of: (a) any stamp or transfer tax
imposed by local law; (b) recording the deed and any documents required by
Purchaser's lender; (c) all other escrow and other fees imposed in
connection with the closing of Purchaser's purchase money loan, if any, and
(d) one-half of the cost of the special endorsements described in clause
(vi) of Section 5.3 hereof. Purchaser and Seller shall share equally the
escrow fees for the Closing. All other closing costs shall be apportioned
according to prevailing local custom. Except as expressly provided in this
Agreement to the contrary, each party shall pay its own legal fees.
3.4 Closing Prorations and Adjustments. The following items shall be
prorated and adjusted as of the Closing as follows:
(a) Lease Payments received by Seller, as landlord, under the Lease
and Cost Sharing Payments. Subject to Section 3.4(d), Purchaser agrees
that it will pay to Seller, within five (5) days after its receipt thereof,
the amount of any Lease Payments and Cost Sharing Payments attributable to
the period of time prior to the Closing which, as of the Closing, was owed
and uncollected under the Lease or the Cost Sharing Agreement, as the case
may be.
(b) Amounts payable by Amli Realty Co. under the Landscape
Contract.
(c) The parties acknowledge and agree that the Lease is a so-called
"triple net" lease, and that Tenant is obligated to pay all Taxes, utility
charges and other expenses relating to the Property, and that Seller, as
landlord, does not collect any amounts in advance for the payment of Taxes,
utility charges or operating expenses relating to the Property. As a
result, there shall be no proration or adjustment for Taxes, utility
charges or other expenses relating to the Property, other than amounts
payable under the Landscape Contract.
(d) Lease Payments and Cost Sharing Payments collected after the
Closing shall be applied as follows: (i) first, if the payor specifies
what the payment is intended to cover (e.g., that the payment is on account
of Rent for June, 1996), the payment shall be applied to the items
specified, (ii) second, if the payor does not specify what the payment is
intended to cover, the payment shall be deemed first to be payment of money
owed by such party and unpaid as of the payment date in respect of periods
subsequent to the Closing Date and accordingly, shall be retained by
Purchaser to the extent of any then-existing post-Closing arrearages from
such payor, and any balance shall be deemed to be payment of amounts in
arrears on the Closing Date and shall be prorated and the appropriate
amount shall be paid over to Seller no later than five (5) days after
Purchaser's receipt thereof. After the Closing, Seller shall have the
right, at its sole cost and expense and with counsel of its choice, to
commence and pursue litigation against the appropriate party to collect
Lease Payments and Cost Sharing Payments in arrears on the Closing Date,
and upon Seller's written request, Purchaser shall assign to Seller any
rights, claims and privileges Purchaser may have under the Lease and Cost
Sharing Agreement to collect such payments. Purchaser's and Seller's
obligations under this Section 3.4(d) shall survive the Closing without
limitation as to time.
(e) At the time of Closing, Seller shall cancel all insurance
policies, if any, carried by Seller with respect to the Property, and shall
be entitled to receive and retain any refund obtained by Seller from its
insurance carriers due to such cancellation.
If any other items of income and expense requiring proration arise prior to
Closing, then said items shall be prorated according to prevailing local
custom.
3.5 Payment of Purchase Price. The Purchase Price, less the Xxxxxxx
Money (which shall be paid to Seller), plus or minus any adjustments,
credits or prorations provided for herein, shall be paid at the Closing by
wire transfer of current funds.
ARTICLE 4
REVIEW PERIOD
During the period of time beginning on the Effective Date and
continuing until 5:00 p.m. on August 20, 1996 (the "Review Period")
Purchaser and its agents and contractors shall have the right to enter upon
the Property, subject to Tenant's rights under the Lease, and conduct such
tests and investigations as may be necessary for Purchaser to determine
whether any one or more of the following matters or any other matter would
make the Property unacceptable to Purchaser for acquisition in Purchaser's
sole discretion:
(a) zoning of the Property;
(b) results of soils and environmental studies conducted by
Purchaser;
(c) the state of title to the Property as evidenced by the Title
Commitment;
(d) matters shown on the Survey;
(e) the physical condition of the Building and other improvements
on the Property;
(f) the terms and conditions of the Lease;
(g) the availability and sufficiency of utilities, including water,
sanitary sewer, storm/retention facilities, telephone, gas and electricity;
(h) the existence of any laws, regulations or judicial matters
affecting the Property; and
(i) an estoppel certificate from Tenant, acceptable to Purchaser in
its sole discretion.
In the event Purchaser determines that any one or more of the
foregoing matters or any other matter would make the Property unacceptable
to Purchaser for acquisition, then Purchaser may elect to terminate this
Agreement by delivering written notice of termination to Seller at any time
on or prior to the last day of the Review Period, which notice shall
specify the reason or reasons for termination. If Purchaser fails to give
Seller notice of termination on or before the last day of the Review
Period, Purchaser's right to terminate this Agreement pursuant to this
Article 4 will be deemed waived. Regardless of whether Purchaser exercises
its right to terminate this Agreement under this Article 4, Purchaser
shall, at its sole cost, deliver to Seller copies of any audits, reports,
studies, surveys, evaluations, test results or other materials prepared or
received by Purchaser relating to the environmental condition of the
Property promptly after Purchaser's receipt thereof.
If Purchaser so elects to terminate this Agreement during the Review
Period, Seller shall be reimbursed from the Xxxxxxx Money for up to
$3,000.00 of the costs, expenses, fees and charges incurred by Seller prior
to such termination in obtaining the Survey and the Title Commitment (the
"Reimbursement Amount"), provided that Seller furnishes to Purchaser
invoices from the Surveyor and the Title Insurer evidencing such costs,
expenses, fees and charges. Purchaser shall as a condition precedent to
the return to Purchaser of the balance of the Xxxxxxx Money: (i) return to
Seller any materials Seller has delivered to Purchaser in connection with
Purchaser's due diligence investigations, provided Seller notified
Purchaser in writing at the time of the delivery of any such materials that
such materials must be returned to Seller under this provision; and (ii)
deliver to Seller (without cost to Seller) any and all title reports,
surveys, soil tests, environmental studies or other reports or studies
pertaining to the Property which Purchaser has ordered or obtained prior to
or during the Review Period, other than proprietary materials produced
exclusively for Purchaser's internal purposes; and (iii) pay the
appropriate parties for or reimburse Seller for the payment of all costs
and expenses properly allocable to Purchaser under this Article 4.
Purchaser shall repair any damage to the Property resulting from
Purchaser's activities on the Property under this Article 4 or under
Section 8.3 hereof, and shall indemnify, defend, and hold harmless Seller
and Seller's partners, and their respective shareholders, officers,
directors, employees and agents from and against any and all loss, damage,
liability or expense (including reasonable attorneys' fees and other
litigation expense and claims and liens of mechanics or materialmen) any of
the aforementioned persons or entities may incur as a result of Purchaser's
activities on the Property under this Article 4 or under Section 8.3
hereof. The obligations of Purchaser under this grammatical paragraph
shall survive the Closing or a termination of this Agreement, without
limitation as to time, notwithstanding anything contained to the contrary
in this Agreement.
Any investigation or inspection conducted by Purchaser or any agent or
representative of Purchaser, pursuant to this Agreement, in order to verify
independently Seller's satisfaction of any conditions precedent to
Purchaser's obligations hereunder or to determine whether Seller's
representations and warranties are true and accurate, shall not affect (or
constitute a waiver by Purchaser of) any of Seller's obligations hereunder
or Purchaser's reliance thereon; provided, however, that if Purchaser
becomes aware of Seller's failure to satisfy any condition precedent or
becomes aware of the untruth or inaccuracy of one or more of Seller's
representations and warranties, and Purchaser fails to promptly exercise
its rights or remedies hereunder with respect thereto (including any right
to terminate this Agreement), Purchaser shall be deemed to have irrevocably
waived the satisfaction of such condition precedent or irrevocably waived
its reliance on such representation or warranty and any claims or causes of
action for damages or otherwise against Seller on account thereof, as the
case may be.
ARTICLE 5
TITLE INSURANCE AND SURVEYS
5.1 Title Commitment; Preliminary Survey. Prior to the Effective Date,
Seller has delivered to Purchaser:
(a) a survey of the Property dated July 12, 1996 ("Survey")
prepared by the Surveyor and certified to Seller, Purchaser and the Title
Insurer as having been made in compliance with current ALTA/ACSM Land
Survey Standards (Seller shall cause the Survey to be certified to Xxxxxx
Trust and Savings Bank prior to Closing); and
(b) the Title Insurer's Commitment for Title Insurance dated June
22, 1996 (Order No. 9607427) (the "Title Commitment") for an ALTA 1992 Form
Owner's Title Insurance Policy.
5.2 Permitted Exceptions. Purchaser and Seller have agreed that the
items listed on Exhibit B attached hereto and made a part hereof shall
constitute the "Permitted Exceptions" hereunder unless and except to the
extent that the list is modified pursuant to Section 5.4 hereof.
5.3 Title Policy. At the Closing, Seller shall deliver to Purchaser an
ALTA 1992 Form Owner's Title Insurance Policy from the Title Insurer or in
lieu thereof a marked-up title commitment from the Title Insurer (either
being referred to herein as the "Title Policy") which in either case shall:
(i) be dated the Closing Date; (ii) name Beneficiary as the insured; (iii)
have a liability amount equal to the Purchase Price; (iv) show the Trust as
the owner of the Property in fee simple subject to no exceptions other than
the Permitted Exceptions; (v) include extended coverage over the standard
printed exceptions; and (vi) include the following endorsements: 3.1
zoning endorsement (with parking) in the form attached hereto as Exhibit G,
creditor's rights endorsement, restrictions endorsement No. 4 over title
exception letter "M" appearing in the Title Commitment, and a location
endorsement 6 in the form attached hereto as Exhibit F. The Title Policy
shall be conclusive evidence as to good title as shown therein with respect
to all matters insured by the Title Policy.
5.4 Objection and Cure Period. If the Title Insurer raises additional
title exceptions in any version of the Title Commitment issued at or before
the Closing and such additional title exceptions do not constitute
Permitted Exceptions or Removable Liens (hereinafter defined), then Seller
may, at its election, within ten (10) days after receipt of the subsequent
version of the Title Commitment, as the case may be: (a) cause the
non-permitted matters to be deleted from the Title Commitment; (b) cause
the Title Insurer to expressly waive or insure over such non-permitted
matters; or (c) cause the Title Insurer to agree to delete or insure over
such non-permitted matters at the Closing. Except for Removable Liens and
additional exceptions to title resulting from a breach by Seller under
Section 5.5 hereof, Seller shall have no obligation to elect the
alternatives set forth in clauses (a), (b) or (c) of this Section 5.4.
If Seller fails or elects not to take any of the actions described in
clauses (a), (b) or (c) above with respect to the non-permitted matters
within the aforementioned ten (10) day period, Purchaser may by written
notice to Seller delivered within five (5) days after the expiration of
Seller's 10-day cure period elect, as its sole remedy (except as expressly
provided in the last sentence of this grammatical paragraph), to: (x)
terminate this Agreement, in which case all of the Xxxxxxx Money, less the
Reimbursement Amount, shall be returned to Purchaser provided Purchaser has
complied with Purchaser's obligations under the third grammatical paragraph
of Article 4 hereof; or (y) agree to take title as shown in the most recent
Title Commitment, in which case, the Permitted Exceptions shall be expanded
to include the additional matters not removed, waived or insured over, but
with a deduction from and offset against the Purchase Price for all
Removable Liens. The Closing Date shall be delayed to the extent necessary
to allow for Seller's 10-day cure period and Purchaser's 5-day election
period. Notwithstanding anything contained herein to the contrary, if any
additional exceptions to title result from a breach by Seller under Section
5.5 hereof and Seller fails or refuses to take any of the actions described
in clauses (a), (b) or (c) above with respect to any such exceptions,
Purchaser may pursue against Seller any rights or remedies available at law
or in equity with respect to such breach, subject, however, to the last
sentence of Section 10.2 hereof.
As used in this Section 5.4, the term "Removable Liens" shall mean
liens which are of a definite and ascertainable amount which in the
aggregate can be removed at Closing by payment of monies constituting a
portion of the Purchase Price, and which either (A) represent mortgage
debt, (B) represent taxes or assessments which are then delinquent or which
are then due and payable, or (C) for any and all such liens not in
categories (A) or (B), do not exceed $100,000 taken together in the
aggregate.
After the Closing, Seller shall have the right, at its sole cost and
expense and with counsel of its choice, to commence and pursue litigation
against Tenant to recover any costs incurred by Seller in curing any
non-permitted title matters under this Section 5.4, to the extent Tenant is
liable for such costs under the Lease. Upon Seller's written request,
Purchaser shall assign to Seller any rights, claims and privileges
Purchaser may have as landlord under the Lease to collect such sums.
5.5 No Further Liens. Seller agrees it shall not from and after the
Effective Date voluntarily or consensually and knowingly perform any act
which results in any additional exceptions to title that would survive the
Closing without Purchaser's prior written consent, not to be unreasonably
withheld.
ARTICLE 6
COVENANTS
6.1 Plat of Resubdivision. If the Property is not presently one or more
complete, separately platted parcels and state or local law requires that a
subdivision plat be filed as a condition to the conveyance of the Property,
then at or before the Closing, Seller shall cause a plat of subdivision for
the Property to be prepared by the Surveyor, approved by all necessary
governmental bodies and authorities, and recorded against the Property. If
Seller is not able to fulfill the covenants set forth in this Section 6.1
by the Closing Date, then either Seller or Purchaser may, by written notice
to the other party delivered no later than five (5) Business Days prior to
the Closing Date, elect to extend the Closing for a period not to exceed
one hundred fifty (150) days after the original Closing Date in order to
allow Seller to fulfill said covenants. If the covenants contained in this
Section 6.1 remain unfulfilled on the originally scheduled Closing Date and
continue to remain unfulfilled on the date, if any, to which Seller or
Purchaser has elected to extend the Closing Date, then this Agreement shall
terminate, and the Xxxxxxx Money shall be returned to Purchaser as
Purchaser's sole remedy under this Agreement, and neither party shall have
any further rights or obligations hereunder, except as expressly provided
in this Agreement to the contrary. Seller agrees to diligently pursue all
steps necessary in connection with the preparation, approval and recording
of any plat of subdivision required by law for the conveyance of the
Property under this Agreement.
6.2 Operations. Between the Effective Date and the Closing Date, Seller
shall: (i) not enter into any new lease of the Property or any portion
thereof or amend or terminate the Lease without Purchaser's prior written
consent, which consent shall not be unreasonably withheld; (ii) not enter
into any contracts or agreements relating to the Property which will be
binding on Purchaser after the Closing without Purchaser's prior written
consent, which consent shall not be unreasonably withheld; (iii) not make
any alterations in the Property, except as required or permitted under the
Lease, without Purchaser's prior written consent, which consent shall not
be unreasonably withheld; and (iv) enforce Tenant's obligations under the
Lease in the ordinary course of Seller's business.
ARTICLE 7
REPRESENTATIONS AND WARRANTIES
7.1 Seller's Representations and Warranties. Seller represents and
warrants to Purchaser as follows:
7.1.1 Agreements. Neither the execution and delivery of this
Agreement by Seller nor the consummation of the transactions contemplated
hereby will result in any breach or violation of or default under any
judgement, decree, order, mortgage, lease, agreement, indenture or other
instrument to which Seller is a party.
7.1.2 Authority. Seller has full power and authority to
execute this Agreement and to sell, convey and transfer the Property as
provided for in this Agreement, and this Agreement is binding and
enforceable against Seller.
7.1.3 Compliance with Laws. To Seller's actual knowledge,
Seller has not received any written notice from any governmental authority
that the Property or any portion thereof or the operation thereof is
currently in violation of any applicable law, ordinance, order or
regulation of any governmental or quasi-governmental agency having
jurisdiction over the Property or any portion thereof.
7.1.4 Special Assessments. To Seller's actual knowledge,
Seller has not received any written notice of any special assessments being
contemplated by any governmental authority with respect to the Property.
7.1.5 Lease Agreements. Other than the Lease, Seller has not
entered into and is not a party to any lease or other occupancy agreement
relating to the Property.
7.1.6 Litigation. To Seller's actual knowledge, there is no
judicial or administrative litigation, proceeding (including, without
limitation any condemnation proceeding), claim or investigation pending or
threatened which adversely affects the Property or any portion thereof.
7.1.7 Contracts. Except for: (i) the Lease, (ii) the
Landscape Contract, (iii) the Permitted Exceptions, and (iv) any other
documents or agreements disclosed to Purchaser in writing before the end of
the Review Period, Seller has not entered into any management or service
agreements affecting the Property which will survive the Closing and be
binding upon Purchaser.
7.1.8 Employees. No persons performing services at the
Property are employees of Seller.
7.1.9 Purchase Options. To Seller's actual knowledge, other
than the rights and options set forth in Sections 24 and 25 of the Lease,
there are no outstanding contracts for the purchase of the Property or any
portion thereof and neither the Property nor any portion thereof is subject
to any purchase options.
7.1.10 Hazardous Materials. Seller has not placed or disposed
of any Hazardous Materials on or at the Property or any part thereof in any
manner or quantity which would constitute a violation of any Environmental
Laws.
In this Agreement, any and all uses of and references to the phrase "to
Seller's actual knowledge" and also all references to the "actual
knowledge" of Seller, regardless of the specific words used, shall mean
that (and only that) Xxxx Xxxxxx and Xxxxxxx Xxxxxxx, both employees of
Amli Realty Co., have no actual, present, conscious knowledge that the
representations and warranties qualified by such phrase or other reference
are inaccurate or incorrect. Purchaser acknowledges that such named
individuals have not performed (and are not obligated to perform) any
independent investigation or inquiry with respect to or concerning the
subject matter of such representations and warranties set forth in this
Agreement. Such named individuals are the current employees of Amli Realty
Co. with primary responsibility for the Property.
7.2 Purchaser's Representations and Warranties. Purchaser represents and
warrants to Seller as follows:
7.2.1 Agreements. Neither the execution and delivery of this
Agreement by Purchaser nor the consummation of the transactions
contemplated hereby will result in any breach or violation of or default
under any judgement, decree, order, mortgage, lease, agreement, indenture
or other instrument to which Purchaser is a party.
7.2.2 Authority. Purchaser has full power and authority to
execute this Agreement and purchase the Property as provided for in this
Agreement and this Agreement is binding and enforceable against Purchaser.
7.2.3 Owner of Beneficial Interest. Beneficiary is the holder
of 100% of the beneficial interest in and to and the power of direction
under that certain Trust
7.3 Breach of Representations and Warranties. Each party warrants that
each of the foregoing representations and warranties made by it in this
Article 7 is true as of the date of this Agreement and will also be true as
of the Closing. Each party shall notify the other promptly if such party
becomes aware prior to the Closing Date of any matter which would render
any of the representations or warranties of such party contained in this
Article 7 untrue in any material respect. If any of the foregoing
representations and warranties by Seller is true as of the Effective Date
but shall not be true as of the Closing and such breach is other than as a
result of a voluntary or consensual and knowing act taken by Seller,
Purchaser may alternatively as its sole remedy either (a) waive such breach
and close the transaction contemplated herein, or (b) terminate this
Agreement, in which event the Xxxxxxx Money shall be returned to Purchaser.
In the case of any other breach of any of the foregoing representations or
warranties by Seller or Purchaser, the parties may exercise any of their
remedies under Article 9.
7.4 NO OTHER WARRANTIES. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS
AGREEMENT, PURCHASER AGREES TO ACCEPT THE PROPERTY IN "AS-IS" CONDITION AS
OF THE CLOSING DATE, AND PURCHASER AGREES THAT, EXCEPT AS EXPRESSLY
PROVIDED IN THIS AGREEMENT, SELLER HAS NOT MADE ANY REPRESENTATIONS OR
WARRANTIES, EXPRESS OR IMPLIED, TO PURCHASER REGARDING THE PROPERTY, THE
LEASE OR ANY OTHER MATTER RELATING TO THE TRANSACTIONS CONTEMPLATED BY
THIS AGREEMENT.
ARTICLE 8
CONDITION OF THE PROPERTY
8.1 Casualty. If between the Effective Date and the Closing Date all or
any portion of the Property is damaged or destroyed by fire or other
casualty and the cost of repairing such damage or destruction, as estimated
by an independent contractor acceptable to Purchaser and Seller, exceeds
$500,000, then Purchaser may elect to terminate this Agreement by
delivering written notice of such termination to Seller within fifteen (15)
days after receiving notice of such damage or destruction. If Purchaser
terminates this Agreement under this Section 8.1, the Xxxxxxx Money shall
promptly be returned to Purchaser, and except as expressly provided herein
to the contrary, neither party shall have any further rights or obligations
under this Agreement. If the estimated cost of repairing any such damage
or destruction does not exceed $500,000, or if such estimated cost exceeds
$500,000, but Purchaser does not terminate this Agreement under this
Section 8.1, this Agreement shall remain in full force and effect. The
Closing Date shall be delayed to the extent necessary to allow for
Purchaser's 15-day election period under this Section 8.1.
8.2 Condemnation. If between the Effective Date and the Closing Date any
condemnation or eminent domain proceedings are initiated which might result
in the taking of all or any portion of the Property, Seller shall give
notice of any such proceeding to Purchaser promptly after Seller obtains
actual knowledge thereof. If Tenant would have the right to terminate the
Lease upon a taking of the type contemplated by any such proceeding,
Purchaser shall have the right to terminate this Agreement by delivering
written notice of such termination to Seller within fifteen (15) days after
receiving notice of such proceeding. If Purchaser terminates this
Agreement under this Section 8.2, the Xxxxxxx Money shall promptly be
returned to Purchaser, and except as expressly provided herein to the
contrary, neither party shall have any further rights or obligations under
this Agreement. If Tenant would not have the right to terminate the Lease
upon the contemplated taking, or if Tenant would have such right but
Purchaser does not terminate this Agreement under this Section 8.2, this
Agreement shall remain in full force and effect, and at the Closing, Seller
shall assign to Purchaser all of Seller's right, title and interest in and
to any award made or to be made in connection with such condemnation or
eminent domain proceeding, subject to the rights of Tenant under the Lease.
The Closing Date shall be delayed to the extent necessary to allow for
Purchaser's 15-day election period under this Section 8.2.
8.3 Purchaser's Inspection Rights. Subject to the rights of Tenant under
the Lease, Purchaser shall have the right to conduct a walk-through
inspection of the Property within 48 hours prior to the Closing to confirm
that there has been no material, adverse change in the physical condition
of the Property since Purchaser's inspection of the Property under Article
4 hereof. For purposes of this Section 8.3, a "material, adverse change in
the physical condition of the Property" shall mean a condition which is
estimated, by an independent contractor acceptable to Purchaser and Seller,
to cost more than $500,000 to repair or restore. Purchaser shall schedule
the date and time of such inspection with Seller and Tenant not less than
five (5) days before the Closing, and a representative of Seller shall have
the right to attend the inspection. If the walk-through inspection reveals
a material, adverse change in the physical condition of the Property since
Purchaser's inspection of the Property under Article 4 hereof (other than
as a result of events or circumstances governed by Section 8.1 hereof),
then subject to Seller's rights described below, Purchaser may elect to
terminate this Agreement by delivering written notice of such termination
to Seller within fifteen (15) days after such walk-through inspection. If
Purchaser elects to terminate this Agreement under this Section 8.3, Seller
shall have the right to negate Purchaser's termination election by
delivering written notice thereof to Purchaser within five (5) days after
Seller receives Purchaser's termination notice. If Seller elects to negate
Purchaser's termination election, Purchaser shall receive a credit at
Closing equal to the estimated cost to repair and restore such damage;
provided, however, that if such repair and restoration work is Tenant's
obligation under the Lease, after the Closing, Purchaser shall diligently
enforce such Lease obligations against Tenant, and promptly after the
completion of such repair and restoration work (or Purchaser's recovery of
the cost thereof), Purchaser shall pay to Seller an amount equal to the
cost of such work paid for by Tenant or any other person or entity, up to
the amount of the credit received by Purchaser at the Closing. Purchaser's
obligations under the immediately preceding sentence shall survive the
Closing without limitation as to time. If Purchaser elects to terminate
this Agreement under this Section 8.3 and Seller does not elect to negate
such termination election, the Xxxxxxx Money shall promptly be returned to
Purchaser, and except as expressly provided herein to the contrary, neither
party shall have any further rights or obligations under this Agreement.
If the walk-through inspection does not reveal a material, adverse change
in the physical condition of the Property since Purchaser's inspection of
the Property under Article 4 hereof, or if such inspection does reveal any
such material, adverse change but Purchaser does not elect to terminate
this Agreement under this Section 8.3, this Agreement shall remain in full
force and effect. The Closing Date shall be delayed to the extent
necessary to allow for Purchaser's 15-day election period and Landlord's
5-day election period under this Section 8.3.
ARTICLE 9
THE CLOSING
9.1 Definition; Time and Place. The performance by Seller and Purchaser
of their respective obligations under this Agreement directly or through
the completion of the escrow deposits required of them to be made and the
delivery of the Purchase Price to Seller by the Closing Escrowee after
delivery of the Title Policy to Purchaser and delivery of possession of the
Property to Purchaser, subject to the rights of Tenant under the Lease,
shall constitute the closing of the sale (the "Closing"). Subject to an
extension pursuant to Sections 5.4 or 6.1, hereof or pursuant to Article 8
hereof, the date of the Closing (the "Closing Date") shall be not later
than 2:00 p.m. (C.S.T.) on August 30, 1996. The Closing shall take place
at the downtown Chicago office of the Title Insurer.
9.2 Possession. Possession of the Property shall be delivered at the
Closing, subject to the rights of Tenant under the Lease.
9.3 Escrow. This sale shall be closed through a "New York style" escrow
(the "Escrow") with the Title Insurer (the "Closing Escrowee"), in
accordance with the general provisions of the usual form of escrow
agreement then in use by the Closing Escrowee, with such special provisions
inserted in the escrow agreement as may be required to conform with this
Agreement (the "Escrow Agreement"). Purchaser shall have the right to
establish a separate escrow agreement with the Closing Escrowee governing
the disbursement of any purchase money loan required to purchase the
Property, but Seller shall not be obligated to be a party to any such
escrow agreement or to incur any costs in connection therewith. The Escrow
and Escrow Agreement shall be auxiliary to this Agreement, and this
Agreement shall not be merged into nor in any manner superseded by the
Escrow or the Escrow Agreement. Upon the creation of the Escrow, payment
of the Purchase Price and delivery of the deed and other closing documents
shall be made through the Escrow and the Xxxxxxx Money shall be deposited
in the Escrow. The attorneys for the parties are hereby authorized to
execute the Escrow Agreement and any amendments thereto. Each party shall
have the right to inspect all documents prior to or at the time of deposit
in the Escrow. The escrow fee for the Escrow shall be shared equally by
the parties, except that the escrow fees attributable to any ancillary
money lender's agreement shall be borne by Purchaser alone.
9.4 Documents To Be Delivered By Seller At Closing. At the Closing,
Seller shall deliver or cause to be delivered to Purchaser directly or, if
either party elects, through the Escrow, the following, each of which shall
be in form reasonably satisfactory to Purchaser and (if applicable) the
Title Insurer:
(a) a duly executed and acknowledged special warranty deed to
the Property subject only to the Permitted Exceptions and naming the Trust
as the grantee;
(b) the Title Policy;
(c) evidence of authorization of Seller as to the execution
of this Agreement and the sale of the Property to Purchaser and the
performance of other acts required hereunder;
(d) an affidavit to the effect that Seller is not a foreign
person under Section 1445(b) of the United States Internal Revenue Code;
(e) an original Lease;
(f) a quit claim Xxxx of Sale in the form of Exhibit C
attached hereto and made a part hereof conveying any personal property
located on the Property and owned by Seller (if any);
(g) a customary form of Affidavit of Title;
(h) at Seller's option, either (1) a completed Environmental
Disclosure Document for Transfer of Real Property pursuant to the
Responsible Property Transfer Act of 1988, or (ii) a representation from
Seller to Purchaser that to Seller's actual knowledge the Property does not
constitute "Real Property" under the Responsible Property Transfer Act of
1988;
(i) Seller shall notify the Illinois Department of Revenue
(the "Department") of the pending sale of the Property pursuant to and in
accordance with the requirements of Section 902(d) of the Illinois Income
Tax Act and Section 5(j) of the Retailer's Occupation Tax Act
(collectively, the "Acts"). Purchaser shall provide Seller with any
information requested by Seller and needed to complete such notice to the
Department. Seller, by giving such notice to the Department, shall attempt
to cause the Department to certify, prior to the Closing, that Seller
either has or does not have assessed but unpaid taxes, penalties or
interest due under the Acts. If the Department issues a Bulk Sales Stop
Order prior to the Closing, Seller shall comply with all requirements and
obligations imposed by the Department so as not to delay the closing,
including, without limitation, escrowing the amount to be withheld under
the Bulk Sales Stop Order with the Closing Escrowee. If prior to the
Closing, the Department has not made and issued a written determination
that Seller does not have assessed but unpaid taxes, penalties or interest
due under the Acts and has not issued a Bulk Sales Stop Order, Seller shall
indemnify Purchaser and hold Purchaser harmless from and against any and
all loss, damage, liability, cost and expense which Purchaser may suffer or
incur as a result of debts owed by Seller to the Department under the Acts,
and such indemnification shall survive the Closing until such time as
Seller or the Department delivers to Purchaser a written determination that
Seller does not have assessed but unpaid taxes, penalties or interest due
under the Acts;
(j) all other documents (if any) required, pursuant to other
provisions of this Agreement or to the Escrow Agreement, to be executed and
delivered by Seller; and
(k) such other instruments and documents, including, but not
limited to, an ALTA Statement and a gap undertaking, as may be reasonably
required by the Title Insurer or Purchaser in order to carry out the
purposes of this Agreement.
9.5 Documents To Be Delivered By Purchaser At Closing. At the Closing,
Purchaser shall deliver or cause to be delivered to Seller directly, or if
either party elects through the Escrow, the following, each of which shall
be in form reasonably satisfactory to Seller and (if applicable) the Title
Insurer:
(a) the Purchase Price, plus or minus adjustments, credits
and prorations as provided for herein;
(b) evidence of authorization of Purchaser as to the
execution of this Agreement and the purchase of the Property from Seller
and the performance of the other acts required hereunder and the
transactions contemplated hereby;
(c) all other documents required pursuant to other provisions
of this Agreement or the Escrow Agreement to be executed
and delivered by Purchaser; and
(d) such other instruments and documents as may be reasonably
required in order to carry out the purpose of this Agreement, including,
but not limited to, an ALTA Statement.
9.6 Documents to be Jointly Delivered by Seller and Purchaser at Closing.
At the Closing, Seller and Purchaser shall each execute and deliver (or in
the case of the document described in clause (e) below, Seller shall cause
Amli Realty Co. to execute and deliver), directly, or if either party
elects, through the Escrow, the following, each of which shall be in form
reasonably satisfactory to both parties and (if applicable) the Title
Insurer:
(a) applicable transfer tax declarations for the State of
Illinois, the County and any necessary municipal transfer declarations;
(b) a Closing Statement (in triplicate);
(c) an Assignment and Assumption Agreement in the form of
Exhibit D attached hereto and made a part hereof;
(d) a letter to Tenant signed by Seller and Purchaser
advising Tenant that (i) the Property has been sold to Purchaser, (ii) all
of Seller's right, title and interest in, to and under the Lease have been
assigned to Purchaser as of the Closing Date, and (iii) Purchaser has
assumed all of Seller's obligations under the Lease from and after the
Closing Date, and directing Tenant to pay all future rental under the Lease
in accordance with Purchaser's directions and to identify Purchaser as the
"Landlord" under all insurance policies required to be maintained by Tenant
under the Lease; and
(e) an Assignment and Assumption Agreement in the form of
Exhibit E attached hereto and made a part hereof.
ARTICLE 10
DEFAULTS; REMEDIES
10.1 Purchaser's Default. If the transaction contemplated hereby does not
close by reason of a default by Purchaser in any of the terms hereof and
such default is not cured within five (5) Business Days after written
notice of such default is given by Seller to Purchaser, then Seller may, as
its sole option and in lieu of any and all other legal and equitable
remedies which Seller may have hereunder for failure by Purchaser to close
the transaction contemplated hereby, receive the Xxxxxxx Money as
liquidated damages. In addition, Seller may pursue against Purchaser any
and all other rights and remedies available at law or equity to obtain from
Purchaser: (i) copies of all soil tests, environmental studies, and other
tests and studies pertaining to the Property obtained by Purchaser (other
than proprietary materials produced exclusively for Purchaser's internal
purposes), and (ii) reimbursement for the payment of all costs and expenses
properly allocable to Purchaser under Article 4 hereof. Nothing contained
in this Section 10.1 shall limit, restrict or otherwise affect any claim or
cause of action Seller may have against Purchaser under Purchaser's
indemnification obligations under this Agreement, and in connection with
any such claims or causes of action, Seller's recovery shall not be limited
to the Xxxxxxx Money or any other sum certain.
10.2 Seller's Default. If the transaction contemplated hereby does not
close by reason of a default by Seller in any of the terms hereof, and such
default is not cured within five (5) Business Days after written notice of
said default is given by Purchaser to Seller, then Purchaser may: (a) if
such default is other than the result of Seller's voluntary or consensual
and knowing act, terminate this Agreement and receive the Xxxxxxx Money as
Purchaser's sole remedy; or (b) in all other cases, terminate this
Agreement and receive the Xxxxxxx Money or pursue against Seller any other
rights or remedies available at law or in equity, including, without
limitation, an action to compel Seller's specific performance of this
Agreement, all in such order or concurrently as Purchaser may elect.
Notwithstanding anything contained herein to the contrary, Purchaser's
rights and remedies upon Seller's breach of a representation and warranty
shall be subject to and governed by Section 7.3 hereof. Notwithstanding
anything contained herein to the contrary, in no event shall Seller be
liable to Purchaser for indirect or consequential damages, including,
without limitation, any loss or damage suffered by Purchaser in connection
with any agreement or understanding with any third party for the use, lease
or purchase of the Property or any portion thereof.
ARTICLE 11
MISCELLANEOUS
11.1 Payment of Real Estate Brokers and Consultants. Seller shall pay a
broker's commission to Xxxxx & Company and Amli Realty Co. in connection
with this transaction. Purchaser represents to Seller that Purchaser has
not engaged or otherwise dealt with any real estate broker in connection
with the Property or this transaction, other than Xxxxx & Company and Amli
Realty Co. Purchaser agrees to indemnify, defend and hold Seller and
Seller's partners and their respective officers, directors, shareholders,
agents and employees harmless from and against any claim for a real estate
broker's commission or fee by any other party claiming to have been engaged
by, or otherwise represented, Purchaser in connection with the Property or
this transaction. Seller agrees to indemnify, defend and hold Purchaser
and its officers, directors, shareholders, agents and employees harmless
from and against any claim for a real estate broker's commission or fee by
any other party claiming to have been engaged by, or otherwise represented,
Seller in connection with the Property or this transaction.
11.2 Notices. All notices and other communications which are required to
be, or which may be, given under this Agreement shall be in writing, and
shall be delivered at the addresses or to the facsimile telephone numbers
set out hereinbelow. Notice may be given by personal delivery, recognized
overnight courier, facsimile transmission (with a copy to be sent
simultaneously by U.S. regular mail) or by United States mail in the manner
set forth below. Notice shall be deemed to have been duly given (a) if by
personal delivery, on the first occur of the date of actual receipt or
refusal of delivery by any person at the intended address, (b) if by
overnight courier, on the first (1st) Business Day after being delivered to
a recognized overnight courier, (c) if by facsimile transmission, upon the
transmission thereof, as evidenced by the confirmation slip generated by
the sender's facsimile machine, or (d) if by mail, on the second (2nd)
Business Day after being deposited in the United States mail, certified or
registered mail, return receipt requested, postage prepaid, addressed as
follows:
If to Seller: Lincam Properties Ltd. Series 85
c/o Amli Realty Co.
000 Xxxxx Xxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: President
Facsimile No.: (000)000-0000
with a copy to: Xxxxx X. Xxxxx, Esq.
Xxxxx & Xxxx, Ltd.
00 Xxxxx XxXxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Facsimile No.: (000)000-0000
If to Purchaser: CenterPoint Properties Corporation
000 Xxxxx Xxxxxxxx Xxxxxx
00xx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxx Xxxxx
Facsimile No.: (000)000-0000
with a copy to: Xxxxxxx X. Xxxxx, Esq.
Xxxxxxx, Carton & Xxxxxxx
000 Xxxxx Xxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Facsimile No.: (000)000-0000
or to such other address or facsimile telephone number as either party
may from time to time specify as its address or facsimile telephone number
for the receipt of notices hereunder, in a notice to the other party.
11.3 Assignment. Purchaser may assign all (but not less than all) of its
right, title and interest under this Agreement without the prior written
consent of Seller; provided, however, that (i) Purchaser shall notify
Seller of any such proposed assignment and the name of the proposed
assignee (and the principals thereof) at least ten (10) days prior to the
effective date of any such assignment, and (ii) prior to the effective date
of any such assignment, Purchaser shall provide Seller with an agreement,
in form and substance reasonably acceptable to Purchaser, in which such
assignee expressly assumes and agrees to perform all of Purchaser's
obligations under this Agreement, and makes, for Seller's benefit, each of
the representations and warranties set forth in Section 7.2 hereof as to
itself. Except as provided in the immediately preceding sentence, any
assignment or transfer by Purchaser of, or attempt by Purchaser to assign
or transfer, Purchaser's interest in this Assignment shall be an immediate
default by Purchaser under this Agreement. Subject to the foregoing, this
Agreement shall be binding upon the undersigned and each of their
successors and assigns.
11.4 Joint and Several Liability. If Purchaser is more than one person or
entity, then all obligations and/or liabilities of Purchaser set forth
herein or arising hereunder shall be the joint and several obligations
and/or liabilities of each party constituting Purchaser.
11.5 Entire Agreement. Except for that certain letter agreement entered
into between Seller and Beneficiary dated June 24, 1996 (and executed by
Beneficiary on July 1, 1996) relating to Beneficiary's entering onto the
Property prior to the Effective Date to perform due diligence
investigations (which letter agreement shall survive the execution and
delivery of this Agreement, any termination of this Agreement, and the
Closing), this Agreement embodies the entire understanding of the parties
and there are no further or other agreements or understandings, written or
oral, in effect between the parties relating to the subject matter hereof
except as may be set forth in a writing executed by both parties
contemporaneously with or subsequent to this Agreement.
11.6 Severability. If any term or provision of this Agreement or any
application thereof shall be invalid or unenforceable, the remainder of
this Agreement and other applications thereof shall not be affected
thereby.
11.7 Captions; Number. The captions contained in this Agreement are for
the convenience of reference only, and shall not affect the meaning,
interpretation or construction of this Agreement. As used in this
Agreement, the singular form shall include the plural and the plural shall
include the singular, to the extent that the context renders it
appropriate.
11.8 Counterparts. This Agreement may be executed in two more
counterparts, each of which shall be deemed to be an original and all of
which together shall be deemed to be one and the same instrument.
11.9 Governing Law; Venue. This Agreement has been executed and
delivered, and is to be performed, in the State of Illinois, and this
Agreement and all rights, obligations and liabilities hereunder shall be
governed by, and construed in accordance with, the internal laws of the
State of Illinois. Purchaser hereby irrevocably waives any objection that
it may now or hereafter have to the laying of venue of any suit, action or
proceeding arising out of or relating to this Agreement brought in any
federal or state court sitting in Xxxx County, Illinois.
11.10 Time of the Essence. Time is of the essence of this Agreement.
11.11 Survival. All of the respective representations and warranties of
Seller and Purchaser hereunder, and all of their respective rights and
remedies with respect to the incorrectness or breach thereof, shall survive
the Closing Date for a period of one (1) year from the date of Closing.
11.12 Modification. The provisions of this Agreement may not be amended,
changed or modified orally, but only by an agreement in writing signed by
the party against whom any amendment, change or modification is sought.
11.13 Waiver. Except as otherwise expressly provided in this Agreement, no
waiver by a party of any breach of this Agreement or of any warranty or
representation hereunder by the other party shall be deemed to be a waiver
of any other breach by such other party (whether preceding or succeeding
and whether or not of the same or similar nature) and no acceptance of
payment or performance by a party after any breach by the other party shall
be deemed to be a waiver of any breach of this Agreement or of any
representation or warranty hereunder by such other party whether or not the
first party knows such breach at the time it accepts such payment or
performance. Except as otherwise expressly provided in this Agreement no
failure or delay by a party to exercise any right it may have by reason of
the default of the other party shall operate as a waiver of default or
modification of this Agreement or shall prevent the exercise of any right
by the first party while the other party continues to be so in default.
11.14 Business Days. If any date specified in this Agreement for the
Closing Date or for commencement or expiration of time periods for
termination or approvals or for notice occurs on a day other than a
Business Day, then any such date shall be postponed to the following
Business Day. As used herein, "Business Day" shall mean any day other than
a Saturday, Sunday or a holiday observed by national banks or the Title
Insurer.
11.15 No Recording of Agreement. Neither party shall record this Agreement
or any memorandum or short form hereof without the prior written consent of
the other.
11.16 Limitation of Liability. Purchaser agrees that the partners of
Seller and their respective shareholders, officers, directors, agents and
employees shall have no personal liability whatsoever with respect to this
Agreement or the transactions described herein. Further, Purchaser agrees
that Seller's liability under this Agreement or relating to the
transactions contemplated hereby shall at all times be limited to Seller's
interest in the Property.
11.17 Offer; Effective Date. The execution of this Agreement by the first
party to do so and delivery thereof to the other party constitutes an offer
to purchase or sell, as the case may be, and shall be automatically revoked
unless the party to which the offer is made shall execute and deliver at
least two (2) copies of this Agreement to the offering party at the address
given for notice herein on or before 5:00 p.m., local time, on the date
which is five (5) days after the date on which the offering party has
executed this Agreement as first set forth above. Regardless of any date
heretofore or hereafter inserted in this Agreement, the term "Effective
Date" as used herein shall be the date on which this Agreement is executed
and delivered in final form by the latter of Purchaser or Seller to so
execute and deliver it.
11.18 Trustee Exculpation. This Agreement is executed by LaSalle National
Trust, not personally but as Trustee as aforesaid, in the exercise of the
power and authority conferred upon it as such Trustee, and under the
express direction of the beneficiary of the Trust. Nothing contained in
this Agreement shall be construed as creating any liability whatsoever
against Trustee personally.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
PURCHASER
CENTERPOINT PROPERTIES CORPORATION, an Illinois
corporation
Attest:
By:________________________ By:
Title:______________________ Title:
LASALLE NATIONAL TRUST, not personally, but solely
as Trustee under a Trust Agreement dated July 19, 1996
and known as Trust No. 120394
Attest:
By:________________________ By:
Title:______________________ Title:
Date:
SELLER
LINCAM PROPERTIES LTD. SERIES 85, an Illinois limited
partnership
By: Lincam Properties, Inc. a Delaware corporation, its
sole general partner
By:
Title: President
Date:___________________________________
EXHIBIT A
LEGAL DESCRIPTION OF THE LAND
EXHIBIT B
PERMITTED EXCEPTIONS
EXHIBIT C
XXXX OF SALE
EXHIBIT D
ASSIGNMENT AND ASSUMPTION AGREEMENT
EXHIBIT E
ASSIGNMENT AND ASSUMPTION AGREEMENT
EXHIBIT F
LOCATION ENDORSEMENT 6
