EXHIBIT 10.114
AGREEMENT FOR PURCHASE AND SALE OF
WINDY POINT BUILDINGS
AGREEMENT FOR PURCHASE AND SALE
between
WINDY POINT OF SCHAUMBURG, LLC,
as Seller
and
▇▇▇▇▇ CAPITAL, INC.,
as Purchaser
Dated: NOVEMBER 30, 2001
TABLE OF CONTENTS
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Page
ARTICLE I DEFINITIONS ....................................................... 1
Section 1.1 Definitions. ............................................ 1
"Actual New Seventh Floor Rent Credit" .............................. 1
"Agreement" ......................................................... 1
"Association" ....................................................... 1
"Bankruptcy Code" ................................................... 1
"Broker" ............................................................ 1
"Closing" ........................................................... 1
"Closing Date" ...................................................... 1
"Contracts" ......................................................... 1
"Conveyancing Documents" ............................................ 2
"Declaration" ....................................................... 2
"Due Diligence" ..................................................... 2
"Due Diligence Termination Date" .................................... 2
"▇▇▇▇▇▇▇ Money" ..................................................... 2
"▇▇▇▇▇▇▇ Money Trust Agreement" ..................................... 2
"Effective Date" .................................................... 2
"Environmental Laws" ................................................ 2
"Escrow Agent" ...................................................... 2
"Escrow Agreement" .................................................. 2
"Estimated New Seventh Floor Rent Credit" ........................... 3
"Evaluation Materials" .............................................. 3
"Financing" ......................................................... 3
"Fixtures" .......................................................... 3
"FRC Windy Point" ................................................... 3
"Governmental Authority" ............................................ 3
"Information" ....................................................... 3
"Insolvency Proceedings" ............................................ 3
"Insolvent" ......................................................... 3
"Leases" ............................................................ 3
"Lease-Up Costs" .................................................... 4
"Liabilities" ....................................................... 4
"Litigation Schedule" ............................................... 4
"Monetary Objection or Objections" or "Monetary Exception or
Exceptions" ..................................................... 4
"New Seventh Floor Lease" ........................................... 4
"Obligations" ....................................................... 4
"Other Contracts" ................................................... 4
"Permitted Exceptions" .............................................. 4
"Person" ............................................................ 4
"Personal Property" ................................................. 5
"Property" .......................................................... 6
i
"Property Manager" .................................................... 6
"Protest Proceedings" ................................................. 6
"Purchaser" ........................................................... 6
"Purchaser Parties" ................................................... 6
"Purchase Price" ...................................................... 6
"Purchaser's Conditions Precedent" .................................... 6
"Rents" ............................................................... 6
"Required Endorsements" ............................................... 6
"Required Tenants" .................................................... 7
"Reserved Claims" ..................................................... 7
"Securities Laws" ..................................................... 7
"Security(ies)" ....................................................... 7
"Seller" .............................................................. 7
"Seller Parties" ...................................................... 7
"Seller's Conditions Precedent" ....................................... 7
"Settlement Statement" ................................................ 7
"Tenants" ............................................................. 8
"Tenant Estoppel Certificate" or "Tenant Estoppel Certificates" ....... 8
"Tenant Service Payments" ............................................. 8
"Title Commitment" .................................................... 8
"Title Company" ....................................................... 8
"Transfer" ............................................................ 8
"Travelers Windy Point" ............................................... 8
"Uncollected Rents" ................................................... ▇
"▇▇▇▇▇ ▇▇▇▇▇ ▇" ....................................................... 8
"Windy Point II" ...................................................... 8
Section 1.2 Rules of Construction. ..................................... 8
ARTICLE II PURCHASE AND SALE 9
Section 2.1 Agreement to Purchase and Sell. ............................ 9
Section 2.2 Conditions Precedent. ...................................... 9
Section 2.3 Due Diligence Period. ...................................... 12
Section 2.4 Due Diligence Conditions. .................................. 13
Section 2.5 Purchaser's Independent Investigation. ..................... 15
Section 2.6 Property Conveyed As Is. ................................... 16
Section 2.7 Leasing and Management Agreements. ......................... 17
Section 2.8 New Contracts and Leases. .................................. 17
Section 2.9 Termination of Contracts, Other Contracts and/or Leases. ... 18
Section 2.10 No New Encumbrances. ....................................... 19
Section 2.11 Ordinary Course of Business. ............................... 19
Section 2.12 Casualty/Condemnation. ..................................... 19
Section 2.13 Title and Survey ........................................... 20
Section 2.14 Tenant Estoppel Certificates ............................... 21
Section 2.15 Subdivision Bond ........................................... 22
Section 2.16 Restrictions Estoppels ..................................... 22
Section 2.17 Lot 4A Parking. ............................................ 22
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ARTICLE III PURCHASE PRICE; CLOSING ADJUSTMENTS............................................ 23
Section 3.1 ▇▇▇▇▇▇▇ Money; Purchase Price.......................................... 23
Section 3.2 Closing Costs.......................................................... 23
Section 3.3 Prorations and Adjustments............................................. 24
Section 3.4 Post-Closing Inspection, Verification and Adjustments.................. 28
Section 3.5 Application of ▇▇▇▇▇▇▇ Money........................................... 29
ARTICLE IV CLOSING; CONVEYANCING DOCUMENTS................................................. 29
Section 4.1 Closing Escrow......................................................... 29
Section 4.2 Conveyancing Documents................................................. 30
ARTICLE V REPRESENTATIONS AND WARRANTIES................................................... 32
Section 5.1 Representations and Warranties by Purchaser............................ 32
Section 5.2 Representations and Warranties by Seller............................... 34
Section 5.3 Special Seller Representation and Warranty Regarding Bulk Sales........ 37
ARTICLE VI DEFAULT REMEDIES................................................................ 38
Section 6.1 By Purchaser........................................................... 38
Section 6.2 By Seller.............................................................. 39
Section 6.3 Post-Closing Defaults.................................................. 40
Section 6.4 General Provisions..................................................... 40
ARTICLE VII MISCELLANEOUS.................................................................. 41
Section 7.1 Assignment............................................................. 41
Section 7.2 Notices................................................................ 42
Section 7.3 No Third Party Beneficiary............................................. 43
Section 7.4 Successors and Assigns................................................. 43
Section 7.5 Severability........................................................... 43
Section 7.6 Modification........................................................... 43
Section 7.7 Governing Law.......................................................... 44
Section 7.8 Consent to Jurisdiction................................................ 44
Section 7.9 Headings............................................................... 44
Section 7.10 Entire Agreement....................................................... 44
Section 7.11 Broker................................................................. 44
Section 7.12 No Personal/Joint Liability............................................ 45
Section 7.13 Survival............................................................... 45
Section 7.14 Waiver of Trial by Jury................................................ 45
Section 7.15 Time Is of Essence..................................................... 45
Section 7.16 Effective Date......................................................... 45
Section 7.17 No Recording........................................................... 46
Section 7.18 Informed Consent....................................................... 46
Section 7.19 Further Assurances..................................................... 46
Section 7.20 Counterparts........................................................... 46
Section 7.21 WAIVER OF CONSUMER PROTECTION/DECEPTIVE TRADE PRACTICES ACTS........... 46
Section 7.22 Securities Acknowledgments............................................. 47
iii
Section 7.23 Public Disclosure...................................................... 47
Section 7.24 Letter of Understanding................................................ 47
Section 7.25 Like Kind Exchange..................................................... 47
iv
EXHIBITS:
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Exhibit A - Legal Description of Property
Exhibit B - ▇▇▇▇▇▇▇ Money Trust Agreement
Exhibit C - Escrow Agreement
Exhibit D - [Intentionally Omitted]
Exhibit E - List of Leases
Exhibit E-1 - Defaults Under Leases
Exhibit F - Deed
Exhibit G - ▇▇▇▇ of Sale
Exhibit H - Assignment of Leases
Exhibit I - Assignment of Contract Rights
Exhibit J - Condemnation
Exhibit J-1 - IDOT Easement
Exhibit K - Tenant Notices
Exhibit L - FIRPTA Affidavit
Exhibit M - Contractor Notices
Exhibit N-1 - Global Knowledge Network, Inc. - Form of Tenant Estoppel
Exhibit N-2 - National Semiconductor Corporation - Form of Tenant Estoppel
Exhibit N-3 - TCI Great Lakes, Inc. - Form of Tenant Estoppel
Exhibit N-4 - Zurich American Insurance Company - Form of Tenant Estoppel
Exhibit N-5 - The Apollo Group, Inc. - Form of Tenant Estoppel
Exhibit N-6 - G&R Service Management II, Inc. - Form of Tenant Estoppel
Exhibit N-7 - SprintCom, Inc. - Form of Tenant Estoppel
Exhibit O - Litigation Schedule
Exhibit P - List of Contracts To Be Assigned
Exhibit P-1 - Other Contracts
Exhibit Q - List of Security Deposits
Exhibit R - Commission Agreements
Exhibit S - Personal Property
Exhibit T - Disclosure Documents Provided
Exhibit U - [Intentionally Omitted]
Exhibit V-1 - Seller Certificate as to Representations and Warranties
Exhibit V-2 - Purchaser Certificate as to Representations and Warranties
Exhibit W-1 - Restrictions Estoppel - Declarant
Exhibit W-2 - Restrictions Estoppel - Association
Exhibit X - Lease-Up Costs to be Assumed by Purchaser
Exhibit Y - Assignment of Letter of Credit
Exhibit Z - Bulk Sales Indemnity
Exhibit AA - Assignment Agreement
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AGREEMENT FOR PURCHASE AND SALE
-------------------------------
THIS AGREEMENT FOR PURCHASE AND SALE (as more particularly defined in
Section 1.1 below, this "Agreement") is made as of the 30th day of November,
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2001 by and between WINDY POINT OF SCHAUMBURG, LLC (as more particularly defined
in Section 1.1 below, "Seller") and ▇▇▇▇▇ CAPITAL, INC. (as more particularly
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defined in Section 1.1 below, "Purchaser").
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ARTICLE I
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DEFINITIONS
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Section 1.1 Definitions. Seller and Purchaser hereby agree that the
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following terms shall have the meanings hereinafter set forth, such definitions
to be applicable equally to the singular and plural forms, and to the masculine
and feminine forms, of such terms:
"Actual New Seventh Floor Rent Credit" shall mean an amount derived by
multiplying (a) $28.86 by (b) 28,322 square feet and then multiplying such
product by a fraction, the numerator of which is the actual number of days
between (i) the Closing Date and (ii) the date on which The Apollo Group, Inc.
is obligated to commence the payment of rent under the New Seventh Floor Lease,
after deducting any days of delay directly caused by Purchaser and the
denominator of which is 365 days.
"Agreement" shall mean this Agreement for Purchase and Sale, as amended or
supplemented from time to time in writing by the parties hereto in accordance
with the terms hereof.
"Association" shall mean Windy Point Owners Association, an Illinois
not-for-profit corporation.
"Bankruptcy Code" shall mean the United States Bankruptcy Code, 11
U.S.C.ss.ss.101, et seq., as amended or supplemented from time to time.
"Broker" shall mean CB ▇▇▇▇▇▇▇ ▇▇▇▇▇, Inc., and its legal representatives,
successors and assigns.
"Closing" shall mean the consummation of the purchase and sale transaction
contemplated by this Agreement in accordance with Section 4.1, which shall occur
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no later than 3:00 p.m., Central Time, on the Closing Date.
"Closing Date" shall mean December 31, 2001, or such other date and time as
may be permitted under Sections 2.2(a) and 2.2(b) or agreed upon in writing by
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Seller and Purchaser.
"Contracts" shall mean those unexpired contracts shown on Exhibit P
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relating to the Property as of the Closing Date, to the extent assignable.
"Conveyancing Documents" shall have the meaning of the same defined term
set forth in Section 4.2.
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"Declaration" shall mean that certain Declaration of Covenants, Conditions,
Restrictions, Reciprocal Rights and Easements for Windy Point Development,
Schaumburg, Illinois, dated as of February 8, 1999, recorded February 9, 1999,
as Document No. 99137489 in the ▇▇▇▇ County, Illinois Recorder's Office; as
amended by that certain First Amendment to Declaration of Covenants, Conditions,
Restrictions, Reciprocal Rights and Easements made by Declarant, dated as of May
12, 1999, and recorded as Document No. 99474175 in said public records; as
amended by that certain Second Amendment to Declaration of Covenants,
Conditions, Restrictions, Reciprocal Rights and Easements, made by Declarant
dated as of October 26, 1999, and recorded as Document No. 09025166 in said
public records.
"Due Diligence" shall have the meaning of the same defined term set forth
in Section 2.3.
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"Due Diligence Termination Date" shall mean the earlier of (i) 5:00 p.m.,
Central Time, on the date that is thirty (30) days after the Effective Date (or
the next business day, if such 30/th/ day is not a business day) and (ii)
December 28, 2001.
"▇▇▇▇▇▇▇ Money" shall mean the sum of ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇ ▇▇/▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
Dollars ($1,000,000.00) required to be deposited by Purchaser with Escrow Agent
for the benefit of Seller in accordance with the terms of Section 3.1(a) and the
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▇▇▇▇▇▇▇ Money Trust Agreement, or so much thereof as has actually been paid by
Purchaser that may be remaining from time to time, together with all interest
earned thereon, all of which shall be applied and disbursed in accordance with
the terms of this Agreement and the ▇▇▇▇▇▇▇ Money Trust Agreement.
"▇▇▇▇▇▇▇ Money Trust Agreement" shall mean that certain ▇▇▇▇▇▇▇ Money Trust
Agreement of even date herewith executed or to be executed and delivered by and
among Purchaser, Seller and Escrow Agent, in the form attached as Exhibit B, as
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the same may be amended or supplemented from time to time in writing by the
parties thereto in accordance with the terms thereof.
"Effective Date" shall mean the date on which each and all of the
conditions precedent to the effectiveness of this Agreement are satisfied in
accordance with Section 7.16.
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"Environmental Laws" shall have the meaning set forth in Section 5.2(i).
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"Escrow Agent" shall mean Near North National Title Corporation, as escrow
agent and settlement agent, under the Escrow Agreement, or any successor escrow
agent mutually designated by Seller and Purchaser, and their respective legal
representatives, successors and assigns.
"Escrow Agreement" shall mean that certain Closing Escrow Agreement
executed or to be executed and delivered by and among Purchaser, Seller and
Escrow Agent, in the form attached as Exhibit C, as the same may be amended or
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supplemented from time to time in writing by the parties thereto in accordance
with the terms thereof.
2
"Estimated New Seventh Floor Rent Credit" shall mean an amount equal to
$434,439.30, which amount was derived by multiplying (a) $28.86 by (b) 28,232
square feet and then multiplying such product by a fraction, the numerator of
which is 194 days and the denominator of which is 365 days.
"Evaluation Materials" shall have the meaning of the same defined term set
forth in Section 2.4.
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"Financing" shall mean, individually and collectively, any financing,
investment and/or other funding arrangements of any kind or nature whatsoever,
whether direct or indirect, private or public, interim or long term, structured
as debt or equity, secured or unsecured, pursuant to repurchase agreements or
reverse repurchase agreements, and whether for purposes of acquisition,
ownership, holding, warehousing, securitization or otherwise, together with the
rights and obligations of the holders thereof and payments and distributions
thereon and proceeds therefrom.
"Fixtures" shall mean all of the right, title and interest of Seller in and
to the fixtures which are located at and affixed to any of the improvements on
the Property as of the Closing Date, but specifically excluding any fixtures
owned by the Tenants under the Leases.
"FRC Windy Point" shall mean FRC Windy Point L.L.C., an Illinois limited
liability company.
"Governmental Authority" shall mean the United States, any ▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, municipality, foreign state, or other foreign
or domestic government, or department, agency, board, commission, or
instrumentality of any of the foregoing.
"Information" shall mean, individually and collectively, all documents,
reports, studies, materials and other information of any kind or nature
whatsoever, including the Evaluation Materials, whether relating to the Property
or otherwise, provided to any of the Purchaser Parties by any of the Seller
Parties, whether prior to, on or after the date hereof, in whatsoever form.
"Insolvency Proceedings" shall mean any reorganization, liquidation,
dissolution, receivership or other actions or proceedings under the Bankruptcy
Code or any other federal, state or local laws affecting the rights of debtors
and/or creditors generally, whether voluntary or involuntary and including
proceedings to set aside or avoid any transfer of an interest in property or
obligations, whether denominated as a fraudulent conveyance, preferential
transfer or otherwise, or to recover the value thereof or to charge, encumber or
impose a lien thereon.
"Insolvent" shall have the meaning of the same defined term set forth in
Section 101(32) of the Bankruptcy Code.
"Leases" shall mean all unexpired leases and each amendment, renewal,
expansion and extension thereto, subleases, occupancy agreements, licenses and
any other agreements for the possession or occupancy of the Property shown on
Exhibit E, to the extent in effect as of the Closing Date, together with the
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security deposits of Tenants thereunder not applied in accordance with the terms
thereof prior to Closing.
3
"Lease-Up Costs" shall mean collectively, all locator fees, finder's fees,
referral fees and other leasing commissions ("Commissions") and all tenant
allowances and concessions applicable to the Leases. The current outstanding
Lease-Up Costs, including Commissions, are shown on Exhibit X attached hereto.
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"Liabilities" shall mean, individually and collectively, any and all
claims, controversies, disputes, demands, losses, damages, liabilities, costs
and expenses (including reasonable attorneys' fees and expenses, whether
incurred in connection with nonjudicial action, prior to trial, at trial or in
settlement, excluding, however, attorneys' fees and expenses incurred on appeal)
incurred by or asserted against Purchaser Parties or Seller Parties, as the case
may be, whether grounded in contract, statute (including the Securities Laws),
tort or otherwise, at law or in equity.
"Litigation Schedule" shall have the meaning set forth in Section 5.2(i).
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"Monetary Objection or Objections" or "Monetary Exception or Exceptions"
shall mean (a) any mortgage, deed to secure debt, deed of trust or similar
security instrument granted by Seller encumbering all or any part of the
Property, (b) any mechanic's, materialman's or similar lien (unless resulting
from any act or omission of Purchaser or any of the Purchaser Parties or any
Tenant or unless pursuant to obligations of Tenants under Leases), (c) the lien
of ad valorem real or personal property taxes, assessments and governmental
charges affecting all or any portion of the Property which are delinquent, and
(d) any judgment of record against Seller in the county or other applicable
jurisdiction in which the Property is located which judgments, in aggregate,
total less than $500,000.
"New Seventh Floor Lease" shall mean that certain lease dated November 16,
2001, by and between Seller and The Apollo Group, Inc. for the seventh floor of
Windy Point I.
"Obligations" shall mean, individually and collectively, any and all
liabilities, obligations, duties, covenants or agreements of Seller or Purchaser
(as assignee of Seller pursuant to this Agreement) under or with respect to or
in any way arising out of or relating to the Property during their respective
periods of ownership of the Property, including the Leases and Contracts.
"Other Contracts" shall mean the management agreement between Seller and
Property Manager, any insurance policies and those contracts shown on Exhibit
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P-1.
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"Permitted Exceptions" shall mean, collectively, (a) liens for taxes,
assessments and governmental charges not yet due and payable or due and payable
but not yet delinquent, (b) the Leases, (c) such other easements, restrictions
and encumbrances that do not constitute Monetary Exceptions and that are
accepted (or deemed accepted) or not otherwise objected to by Purchaser in
accordance with Section 2.13, and (d) such additional exceptions to title
arising through the acts of Seller but only to the extent permitted by Sections
2.8, 2.9 and 2.10.
"Person" shall mean an individual, estate, trust, trustee, receiver,
partnership, limited liability partnership, corporation, limited liability
company, depository institution (including federal or state savings banks,
saving and loan associations and credit unions), Governmental Authority, or
other legal entity.
4
"Personal Property" shall mean: (a) all personal property listed on the
attached Exhibit S; and (b) all of the right, title and interest of Seller as of
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the Closing Date in and to all furniture, equipment, machinery, and other
tangible property owned by Seller and installed in, located at, or situated on
the Property and all intangible assets of any nature owned by Seller and
relating solely to the Property for the period from and after the Closing Date,
to the extent assignable, including (i) all guaranties and warranties applicable
to the Property, (ii) all plans, specifications, engineering drawings and prints
relating to the construction of the improvements, (iii) all operating manuals
and books, data and records regarding the physical component systems of the
improvements at the Property, (iv) all tenant lists and tenant marketing
information and materials, (v) all goodwill associated with the Property, (vi)
all licenses, permits, certificates of occupancy and other approvals issued to
Seller by any Governmental Authority relating to the use, maintenance or
operation of the Property, (vii) all logos, designs, trademarks and trade names
related to the Property, (viii) all telephone exchange numbers identified with
the Property, (ix) all other intangible property used by Seller solely in
connection with the Property and (x) all books and records relating to the
Property (but excluding any Confidential Information); but specifically
----------------
excluding, whether tangible or intangible, the following property: (A) any
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personal property and fixtures owned, financed and/or leased by the Tenants; (B)
the names, trademarks and/or trade names of "Travelers," "The Travelers
Insurance Company," "Citigroup," "▇▇▇▇▇▇▇" and/or the Property Manager, in
whatsoever form, and any tangible personal property in which any of the
foregoing are affixed or incorporated (other than the leasing and other Property
files and records), any or all of which shall be removed by Seller at its
expense prior to or within ten (10) days after Closing and Purchaser and Seller
agree to cooperate in such removal and Purchaser acknowledges that such removal
may result in the removal of certain tangible personal property including such
names, trademarks and/or trade names which will not be replaced by Seller,
provided Seller agrees to repair any physical damage to the Property caused by
such removal; (C) any cash-on-hand, ▇▇▇▇▇ cash, bank accounts or other funds of
Seller (excluding any prepaid Rents which shall be adjusted between the parties
pursuant to Section 3.3) in whatsoever form the same are held; (D) any and all
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Rents and Uncollected Rents, all of which shall be separately adjusted between
the parties pursuant to Section 3.3; (E) all rights to refunds, accounts
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receivable, accrued and unpaid claims, causes of action and rights of
reimbursement from third parties (other than amounts under the Contracts and
Leases which shall be prorated pursuant to Section 3.3), including, without
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limitation, any amounts that are due and owing or otherwise may be payable to
Seller in connection with the Owners' Controlled Insurance Program ("OCIP
Refund"), bonds (including payment and performance), and any other claims for
payment Seller may have, to the extent arising or relating to the period prior
to Closing and including, without limitation, the Reserved Claims; (F) all of
Seller's financial and corporate books and records, in whatsoever form or
nature, relating to tax returns and reporting information (other than reporting
information necessary for the reconciliation of real estate taxes and operating
expenses for the Property as required under the Leases), organizational
documents, minutes, resolutions, and related corporate materials, appraisals or
valuations or other proprietary or confidential reports and studies (of
whatsoever form or nature and whether or not prepared by the Seller Parties or
any other person) of the Property, materials relating to the marketing of or
market information regarding the Property, including leasing (to the extent the
same includes the names, trademarks and/or trade names of "Travelers," "The
Travelers Insurance Company," "Citigroup," "▇▇▇▇▇▇▇" and/or the Property
Manager, in whatsoever form) or sale of the Property, internal analyses and
communications (of whatsoever form or nature) of the Seller Parties relating to
the Property or
5
any other matter (including inspections, evaluations, approvals, work summaries
and work product), communications or other documentation prepared by or
exchanged with legal counsel (whether internal or external) of the Seller
Parties (including any work product and any other documentation prepared in
anticipation of litigation, other than litigation with tenants who reside at the
Property as of the Closing), financial statements and related confidential
information of the Seller Parties, communications or other documentation
prepared by or exchanged with any current or former lender of Seller (whether
internal or external), and financial analyses and projections (by whomsoever
prepared) relating to the Property or otherwise (all such documents are
hereinafter referred to as "Confidential Information") ; and (G) all software of
any kind or nature whatsoever, including applications software and computer
software, databases, programs, archive media, backup media, electronic data,
documentation, manuals and codes used by any of Seller Parties in connection
with the management, operation and maintenance of the Property.
"Property" shall mean individually and collectively, those parcels of land
described on Exhibit A, together with the improvements thereon as of Closing,
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and all of Seller's right, title and interest as of the Closing Date in and to:
(a) all privileges, rights, easements and appurtenances belonging to such land;
(b) all streets, alleys, passages and other rights-of-way or appurtenances,
included in, adjacent to, or used in connection with such land; and (c) the
Leases, Contracts, Fixtures, and Personal Property.
"Property Manager" shall mean ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ of Illinois, Inc., in its
capacity as property manager for the Property, and its legal representatives,
successors and assigns.
"Protest Proceedings" shall have the meaning set forth in Section 3.3(f).
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"Purchaser" shall mean ▇▇▇▇▇ Capital, Inc., a Georgia corporation, and its
legal representatives, successors and the assigns permitted in Section 7.1.
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"Purchaser Parties" shall mean, collectively, Purchaser, and each and all
of its members, officers, directors, employees, shareholders, partners, agents,
and contractors, and each and all of the respective legal representatives,
heirs, successors and assigns of any of the foregoing.
"Purchase Price" shall have the meaning set forth in Section 3.1(b).
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"Purchaser's Conditions Precedent" shall have the meaning of the same
defined term set forth in Section 2.2 (b).
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"Rents" shall mean collectively, all rents (whether denominated base rent,
fixed rent, additional rent, escalations or otherwise under the Leases), advance
rentals, fees, all reimbursements, and other sums payable by Tenants under the
Leases to Seller, but specifically excluding security deposits and Tenant
Service Payments.
"Required Endorsements" shall mean each of the following endorsements to
the owner's title policy to be issued by the Title Company as contemplated
herein: (a) separate tax parcel, (b) legal subdivision, (c) access, (d) zoning
3.1 (including parking), (e) same as survey, (f) affirmative coverage that
Zurich American Insurance Company and TCI Great Lakes, Inc. have waived their
purchase options under their respective Leases with respect to the sale
contemplated herein, and (g) contiguity between the fee parcels. Such Required
Endorsements
6
shall be in the form as may be acceptable to Purchaser, as determined prior to
the Due Diligence Termination Date.
"Required Tenants" shall mean (a) Global Knowledge Network, Inc.; (b)
National Semiconductor Corporation; (c) TCI Great Lakes, Inc.; (d) Zurich
American Insurance Company; and (e) The Apollo Group, Inc.
"Reserved Claims" shall have the meaning of the same defined term set forth
in Section 3.3(b).
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"Securities Laws" shall mean, individually and collectively, the Securities
Act of 1933, the Securities Exchange Act of 1934, and any and all other laws,
regulations, rules, orders and decrees of any Governmental Authorities governing
the issuance, sale, marketing, exchange or disposition of Securities, as any of
the foregoing are amended from time to time.
"Security(ies)"shall have the meaning of the same defined term in any
Securities Laws, including the meaning for such term set forth in section
77(b)(1) of the Securities Act of 1933 (15 U.S.C.(S) 77(b)(1)), section
3(a)(10) of the Securities Exchange Act of 1934 (15 U.S.C.(S) 78(c)(10)), and
Section 101(49)(A) of the Bankruptcy Code, and shall further include, without
limitation, individually and collectively: note; stock; treasury stock; share in
a corporation (whether or not transferable or denominated "stock" or similar
security); bond; debenture; evidence of indebtedness; collateral trust
certificate; pre-organization certificate or subscription; transferable share;
voting trust certificate; certificate of deposit; certificate of deposit for
security; investment contract; certificate of interest or participation in a
profit sharing agreement or trust or in a royalty, lease, contract or other
interest; interests in a partnership; any legal or beneficial interest in a
trust or pooling or custodial agreement; any claim, interest or instrument
commonly known as a "security" or otherwise defined as a "security" under any
Securities Laws; certificate of interest or participation in, temporary or
interim certificate for, guarantee of, receipt for, warrant or right to
subscribe to or purchase or sell any of the foregoing; whether in the nature of
debt or equity, and whether or not the subject of a registration statement filed
with the Securities and Exchange Commission or exempt under Securities Laws from
the requirement to file such a statement, together with the rights and
obligations of the holders thereof and the payments and distributions thereon
and the proceeds therefrom.
"Seller" shall mean Windy Point of Schaumburg, LLC, a Delaware limited
liability company, and its legal representatives, successors and assigns.
"Seller Parties" shall mean collectively, Seller, each and all of its
members, officers, directors, employees, shareholders, contractors and agents
(including Property Manager), and each and all of the legal representatives,
heirs, successors and assigns of any of the foregoing.
"Seller's Conditions Precedent" shall have the meaning of the same defined
term set forth in Section 2.2(a).
--------------
"Settlement Statement" shall mean the Settlement Statement to be executed
by Purchaser and Seller in connection with the Closing of the transactions
contemplated hereby and delivered to Escrow Agent on or prior to the Closing
Date.
7
"Tenants" shall mean each Person occupying or possessing, or having the
right to occupy or possess, all or any portion of the Property pursuant to the
Leases, including tenants and subtenants, all as shown on Exhibit E.
---------
"Tenant Estoppel Certificate" or "Tenant Estoppel Certificates" shall mean
certificates substantially in the form attached hereto as Exhibits N-1 through
------------
N-7 to be sought from the Required Tenants, G&R Management II, Inc. and
---
SprintCom, Inc. under their respective Leases.
"Tenant Service Payments" shall mean sums due to Seller, as landlord under
the Leases, from the Tenants for reimbursement of costs incurred by Seller prior
to the Closing Date in connection with the provision of services to the Tenants
(excluding operating expenses which are charged to all Tenants at the Property)
identified on an exhibit attached to the Settlement Statement.
"Title Commitment" shall mean that certain commitment for title insurance
No. N01012216 (Revision __ 11/__/01, ba) issued by Near North National Title
Corporation, as agent for Ticor Title Insurance Corporation, with an effective
date of October 25, 2001.
"Title Company" shall mean Ticor Title Insurance Company.
"Transfer" shall mean, individually and collectively, any conveyance, sale,
assignment, transfer, lease (other than in the ordinary course of business to
Tenants), hypothecation, encumbrance, pledge, mortgage (including security deed,
deed of trust and security interest), charge or alienation of any kind or nature
whatsoever, or any offer or agreement to do any of the foregoing, whether direct
or indirect, private or public, voluntary or involuntary, by operation of law or
otherwise, with or without the consent of the Seller Parties.
"Travelers Windy Point" shall mean Travelers Schaumburg Windy Point, LLC, a
Delaware limited liability company.
"Uncollected Rents" shall mean collectively, all Rents which are due or
past due under the Leases and have not been collected by Seller as of the
Closing Date (whether or not billed), but excluding security deposits.
"Windy Point I" shall mean the Property located at ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ in
Schaumburg, Illinois.
"Windy Point II" shall mean the Property located at ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
in Schaumburg, Illinois.
Section 1.2 Rules of Construction. Article and Section captions used in
---------------------
this Agreement are for convenience only and shall not affect the construction of
the Agreement. All references to "Articles" and "Sections," without reference to
a document other than this Agreement are intended to designate articles and
sections of this Agreement, and the words "herein," "hereof," "hereunder" and
other words of similar import refer to this Agreement as a whole and not to any
particular Article or Section, unless specifically designated otherwise. The use
of the term: (a) "including" shall mean in all cases "including but not limited
to," unless specifically designated otherwise; and (b) "legal representatives"
shall mean any trustee,
8
receiver, custodian and/or any other person or entity appointed or authorized to
act in a representative capacity by a court or any other governmental or
quasi-governmental entity, whether appointed pursuant to the Bankruptcy Code or
otherwise. No rules of construction against the drafter of this Agreement shall
apply in any interpretation or enforcement of this Agreement, any documents or
certificates executed pursuant hereto, or any provisions of any of the
foregoing.
ARTICLE II
----------
PURCHASE AND SALE
-----------------
Section 2.1 Agreement to Purchase and Sell. Subject to the conditions set
------------------------------
forth in Sections 2.2(a) and 2.2(b), Seller agrees to sell, and Purchaser agrees
--------------------------
to purchase, the Property on the Closing Date in accordance with the terms and
provisions hereof. In connection with such sale, Seller agrees to transfer and
assign, and Purchaser agrees to assume and perform, all of Seller's right, title
and interest in and to the Leases and Contracts and the Obligations arising
and/or accruing from and after Closing.
Section 2.2 Conditions Precedent.
--------------------
(a) Seller's Conditions Precedent to Sale of Property. Seller's
-------------------------------------------------
obligation to sell the Property in accordance with Section 2.1 is hereby
-----------
conditioned upon full and complete satisfaction, or written waiver signed
by Seller, of each and all of the following conditions precedent
(individually, the "Seller's Condition Precedent" and collectively, the
"Seller's Conditions Precedent") on or prior to the dates specified below:
(i) on or before the Due Diligence Termination Date,
Purchaser shall have given notice to Seller of its election to proceed
to Closing strictly in accordance with the terms of this Agreement,
including without limitation Section 2.3;
-----------
(ii) on or before the Closing Date, Purchaser shall have
executed and delivered to Escrow Agent, to be held pursuant to the
terms of the Escrow Agreement, the Escrow Agreement and each and all
of the Conveyancing Documents to be delivered by Purchaser pursuant to
Section 4.2;
-----------
(iii) on or before 1:00 p.m. Central Time on the Closing
Date, Purchaser shall have delivered to Escrow Agent, to be held
pursuant to the terms of the Escrow Agreement, the full amount of the
Purchase Price (taking into consideration the ▇▇▇▇▇▇▇ Money and all
prorations, credits and adjustments pursuant to the terms of this
Agreement), in immediately available funds, together with any and all
other sums that are to be paid by Purchaser at Closing pursuant to
this Agreement, including the costs and expenses identified in
Sections 3.2 and 3.3 and any other amounts shown as payable by
--------------------
Purchaser on the Settlement Statement;
9
(iv) the representations and warranties made by Purchaser in
Section 5.1 shall be true and correct in all material respects on and
-----------
as of the date made and as of Closing and Purchaser shall have
performed and complied in all material respects with all covenants and
obligations required to be performed by it as of the Closing Date; and
(v) on and as of the Closing Date, each and all of the
conditions precedent to release of the Purchase Price and Conveyancing
Documents from escrow set forth in the Escrow Agreement to be
performed by Purchaser shall have been fully and completely satisfied,
or waived in writing by Seller, strictly in accordance with the terms
of this Agreement and the Escrow Agreement.
Seller agrees that, as soon as Seller has notice of the failure of the Seller's
Condition Precedent set forth in (iv) above, Seller shall notify Purchaser
thereof and Purchaser shall have ten (10) business days after the giving of such
notice within which to cure such failure (no obligation to do so being implied
hereby) and, if required, the Closing Date shall automatically be extended to
the next business day occurring after such ten (10) business day period;
provided, however, in no event shall the Closing Date be further extended unless
Seller and Purchaser agree in writing to such extension. In the event each and
all of the Seller's Conditions Precedent are not fully and completely satisfied
or waived on or before the dates specified above or, if applicable, on the first
business day occurring after the ten (10) business day cure period mentioned in
the immediately preceding sentence (which shall not be further extended without
Seller's and Purchaser's prior written agreement), unless caused by a breach by
Seller (in which case Purchaser shall have the rights and remedies in Section
-------
6.2 on account of such breach), Seller shall have the option to: (A) waive all
---
or any of such Seller's Conditions Precedent and proceed with Closing; or (B)
terminate Seller's obligation to sell the Property by written notice at or prior
to Closing, whereupon Seller's obligation to sell and Purchaser's obligation to
purchase the Property shall be deemed, without additional notice, grace or
further act of any party, to be automatically null and void and of no force or
effect, in which event neither Seller nor Purchaser shall have any further
rights or obligations hereunder or relating hereto, except pursuant to such
provisions hereof as survive termination of this Agreement, and Purchaser shall
be entitled to a refund of the ▇▇▇▇▇▇▇ Money in accordance with Section 3.5
-----------
unless the failure of any of Seller's Conditions Precedent to be satisfied is
otherwise, or is caused by, a breach in any material respect of any of
Purchaser's express representations, warranties, covenants or obligations set
forth in this Agreement or the Escrow Agreement existing beyond any applicable
notice and cure period, in which case Seller shall be entitled to the rights and
remedies set forth in Section 6.1 on account of such breach. Purchaser shall
-----------
have no liability for failing to satisfy any of the Seller's Conditions
Precedent unless the failure to satisfy the same is otherwise, or is caused by,
a breach in any material respect of any of Purchaser's express representations,
warranties, covenants or obligations set forth in this Agreement or the Escrow
Agreement existing beyond any applicable notice and cure period, whereupon
Seller shall also be entitled to the rights and remedies set forth in Section
-------
6.1 on account thereof. The Seller's Conditions Precedent set forth in this
---
Section 2.2(a), and each of them, shall inure solely to the benefit of Seller,
--------------
and no other Person, including Purchaser, shall have any right to waive or defer
any of the conditions specified herein.
(b) Purchaser's Conditions Precedent to Purchase of Property.
--------------------------------------------------------
Purchaser's obligation to purchase the Property in accordance with Section
-------
2.1 is hereby
---
10
conditioned upon full and complete satisfaction, or written waiver
signed by Purchaser, of each and all of the following conditions
precedent (individually, the "Purchaser's Condition Precedent" and
collectively, the "Purchaser's Conditions Precedent") on or prior to
the dates specified:
(i) on or before the Closing Date, Seller shall
have executed and delivered to Escrow Agent, to be held
pursuant to the terms of the Escrow Agreement, the Escrow
Agreement and each and all of the Conveyancing Documents to be
delivered by Seller pursuant to Section 4.2;
-----------
(ii) the representations and warranties made by
Seller in Section 5.2 shall be true and correct in all
-----------
material respects on and as of the date made and as of Closing
(and as if made without limitation to Seller's knowledge for
purposes of this Section 2.2(b)(ii) only) and Seller shall
have performed and complied in all material respects with all
covenants and obligations required to be performed by it as of
the Closing Date;
(iii) each and all of the conditions precedent to
release of the Purchase Price and Conveyancing Documents from
escrow set forth in the Escrow Agreement to be performed by
Seller shall have been fully and completely satisfied, or
waived in writing by Purchaser, strictly in accordance with
the terms of this Agreement and the Escrow Agreement;
(iv) The Title Company shall be irrevocably
committed as of the Closing to issue its policy of title
insurance (including the Required Endorsements) insuring
Purchaser's fee simple title to the Property, subject only to
the Permitted Exceptions, provided the failure of the
Purchaser's Condition Precedent set forth in this Section
2.2(b)(v) shall not constitute a default by Seller hereunder,
unless such failure is due to Seller's failure to satisfy its
obligations pursuant to this Agreement; and
(v) There shall be no material adverse change in
the environmental condition of the Property from the condition
of the Property reflected in the environmental reports
obtained by or on behalf of Purchaser prior to the Due
Diligence Termination Date.
Purchaser agrees that, as soon as Purchaser has notice of the failure of a
Purchaser's Condition Precedent, other than those Purchaser's Conditions
Precedent set forth in (i) and (iii) above, Purchaser shall notify Seller
thereof and Seller shall have ten (10) business days after the giving of such
notice within which to cure such failure (no obligation to do so being implied
hereby) and, if required, the Closing Date shall automatically be extended to
the next business day occurring after such ten (10) business day period;
provided, however, in no event shall the Closing Date be further extended unless
Purchaser and Seller agree in writing to such extension. In the event each and
all of the Purchaser's Conditions Precedent are not fully and completely
satisfied or waived on or before the dates specified above or, if applicable, on
the first business day occurring after the ten (10) business day cure period
mentioned in the immediately preceding sentence (which shall not be further
extended without Purchaser's and Seller's prior written
11
agreement), unless caused by a breach by Purchaser (in which case Seller shall
have the rights and remedies in Section 6.1 on account of such breach),
-----------
Purchaser shall have the option to: (A) waive all or any of such Purchaser's
Conditions Precedent and proceed with Closing; or (B) terminate Purchaser's
obligation to purchase the Property by written notice at or prior to the Closing
Date, as extended pursuant to this Section 2.2, whereupon Purchaser's obligation
-----------
to purchase and Seller's obligation to sell the Property shall be deemed,
without additional notice, grace or further act of any party, to be
automatically null and void and of no force or effect, in which event neither
Seller nor Purchaser shall have any further rights or obligations hereunder or
relating hereto, except pursuant to such provisions hereof as survive
termination of this Agreement and Purchaser shall be entitled to an immediate
refund of the ▇▇▇▇▇▇▇ Money in accordance with Section 3.5 unless the failure of
-----------
any of Purchaser's Conditions Precedent to be satisfied is otherwise, or is
caused by, a breach in any material respect of any of Purchaser's express
representations, warranties, covenants or obligations set forth in this
Agreement or the Escrow Agreement existing beyond any applicable notice and cure
period, in which case Seller shall be entitled to the rights and remedies set
forth in Section 6.1 on account of such breach. Seller shall have no liability
-----------
for failing to satisfy any of the Purchaser's Conditions Precedent unless the
failure to satisfy the same is otherwise, or is caused by, a breach in any
material respect of any of Seller's express representations, warranties,
covenants or obligations set forth in this Agreement or the Escrow Agreement
existing beyond any applicable notice and cure period, whereupon Purchaser shall
also be entitled to the rights and remedies set forth in Section 6.2 on account
-----------
thereof. The Purchaser's Conditions Precedent set forth in this Section 2.2(b),
--------------
and each of them, shall inure solely to the benefit of Purchaser, and no other
Person, including Seller, shall have any right to waive or defer any of the
conditions specified herein.
Section 2.3 Due Diligence Period. Subject to the provisions of Section 2.4
-------------------- -----------
and prior to the Closing Date, Purchaser shall be entitled to conduct such
feasibility studies, due diligence activities, testing (excluding any invasive
testing, which shall not be conducted without Seller's prior written consent,
which consent shall not be unreasonably withheld, conditioned or delayed),
inspections, investigations, tests and examinations of the Property, including
the Leases and Contracts, as it deems necessary or appropriate and to examine
and investigate to its full satisfaction all other facts, circumstances and
matters as it deems relevant to the purchase and assumption of Seller's right,
title, interest and Obligations from and after the Closing Date in or relating
to the Property, including the Leases, Contracts, income and operating
performance of the Property, the condition of the Property (including the
physical condition and use of the Property, availability and adequacy of
utilities, access, zoning, compliance with applicable laws, credit worthiness of
Tenants, environmental conditions on and/or affecting the Property, and
engineering and structural matters), title, survey matters, and any other
matters it deems necessary or appropriate for purposes of entering into and
consummating the Agreement (all such studies, due diligence activities, reviews,
testing, inspections, investigations, tests and examinations, whether occurring
prior or subsequent to the date hereof, are collectively referred to herein as
the "Due Diligence"). Pursuant to the terms hereof and prior to entering into
this Agreement, Seller has provided to Purchaser copies of the documents listed
on the attached Exhibit T, receipt of which is hereby acknowledged by Purchaser.
---------
Upon or prior to the Closing Date, if and to the extent in the possession of
Seller or Property Manager, Seller agrees to make available to Purchaser at the
offices of Property Manager and/or the Property, for inspection, copying and
review by the Purchaser Parties, at Purchaser's sole cost and expense, all
operating
12
files maintained by Seller or the Property Manager or Seller's leasing agent in
connection with the leasing, maintenance and/or management of the Property,
including, without limitation, the Leases, lease files, contracts, leasing
commission agreements, Personal Property, insurance policies, bills, invoices,
receipts and other general books and records relating to the income and expenses
of the Property, real estate tax records, files and records relating to the
Association (including copies of the articles of incorporation and bylaws of the
Association), correspondence, budgets for the year 2002, if available, and prior
years, surveys, plans and specifications, warranties for services, equipment and
materials provided to, installed in or supplied to the Property, engineering
reports, soil tests, environmental audits or assessments (excluding, however,
any Confidential Information). Each and all of the documents listed on the
attached Exhibit T shall be deemed to be Evaluation Materials and treated in
---------
accordance with the terms hereof. To the extent any document or information
requested by Purchaser is not already in existence in the possession of or
maintained or prepared by or on behalf of Seller, Seller shall have no
obligation to cause such documents or information to be obtained, prepared
and/or maintained and provided to Purchaser. If Purchaser is satisfied with the
results of its Due Diligence, Purchaser shall give written notice to Seller of
its election to proceed to Closing on or before the Due Diligence Termination
Date in accordance with all of the terms and conditions of this Agreement. In
the event Purchaser is not satisfied with the results of its Due Diligence for
any reason or no reason whatsoever, including, without limitation, Seller's
inability to deliver Tenant Estoppel Certificates from the Required Tenants,
Purchaser's sole remedy shall be to either: (a) waive such matters and elect to
proceed to Closing, without offset or adjustment (unless expressly agreed to in
writing by a written amendment to this Agreement fully executed by the Seller
and Purchaser prior to the Due Diligence Termination Date), or (b) terminate
this Agreement by giving notice of its election not to proceed to Closing or
failing to give notice of its election to proceed to Closing as aforesaid. In
the event Purchaser gives notice of its election not to proceed to Closing or
fails to give notice of its election to proceed to Closing as aforesaid, this
Agreement shall automatically terminate on the earlier to occur of Seller's
receipt of such notice or the Due Diligence Termination Date without further
notice or action of either party, in which event neither Seller nor Purchaser
shall have any further rights or obligations hereunder or relating hereto,
except pursuant to such provisions hereof as survive termination of this
Agreement, and Purchaser shall be entitled to an immediate refund of the ▇▇▇▇▇▇▇
Money in accordance with Section 3.5. Seller shall cooperate, and shall instruct
-----------
its Property Manager, leasing agent, real estate tax consultant and, upon
request from Purchaser, other contractors and agents, to cooperate with
Purchaser in making Information, individuals and materials available, including
all files (excluding: (i) materials, correspondence and other documents provided
to, received from, exchanged with or relating in any way to prospective
purchasers, prospective purchaser lists and marketing information, valuations
and appraisals, and internal analyses and communications (of whatsoever form or
nature) of the Seller Parties and other materials relating to the marketing and
possible sale of the Property, (ii) communications or other documentation
prepared by or exchanged with legal counsel (whether internal or external) of
the Seller Parties (including any work product and any documentation prepared in
anticipation of litigation) and related confidential information of the Seller
Parties and (iii) any other Confidential Information, in accordance with Section
-------
2.4.
---
Section 2.4 Due Diligence Conditions. Purchaser's right to conduct Due
------------------------
Diligence is expressly conditioned upon, and Purchaser, for itself and the
Purchaser Parties, covenants and agrees that: (a) all Due Diligence shall be
conducted by the Purchaser Parties in a manner which
13
is not disruptive in any material respect to the Tenants or the normal
operations of the Property; (b) the Purchaser Parties shall not enter upon the
Property except during regular business hours for agreed upon purposes and
subject to first coordinating such entry and access with Seller by giving at
least one (1) business day prior written notice in advance and detailing the
scope of the Due Diligence to be conducted, whether or not Property Manager's
presence is required; (c) the Purchaser Parties shall coordinate with Seller and
shall not contact any of the Tenants or any parties to the Contracts or Other
Contracts, without the prior consent of Seller which shall not be unreasonably
withheld, conditioned or delayed and, at Seller's option, the presence of
Property Manager at all times, and access to units occupied by Tenants shall be
coordinated with Seller by giving at least one (1) business day prior written
notice in advance thereof and shall be subject to the terms of the Tenants'
respective Leases; (d) the Purchaser Parties shall at all times strictly comply
with any and all procedures agreed to in this Section 2.4 for the Due Diligence
-----------
and all laws, ordinances, rules and regulations applicable to the Property and
shall not engage in any activities that would violate any permits, licenses,
environmental, wetlands or other regulations pertaining to the Property; (e)
Purchaser shall promptly, and no later than five (5) business days after each
entry on the Property, restore or repair, to Seller's reasonable satisfaction,
any damage caused by the Due Diligence or other acts or omissions of any of the
Purchaser Parties, provided however, Purchaser shall cause any invasive testing,
including testing within walls and pipes, to the extent permitted by Seller, to
be immediately repaired to Seller's reasonable satisfaction and shall
specifically coordinate such testing and repairs in advance with Seller; (f)
none of the Purchaser Parties shall engage in any activities that would cause
Seller's rights, title, interests or Obligations in or relating to the Property
to be adversely affected in any way, including, without limitation, the
assertion of any mechanic's liens, and Purchaser shall, without limitation,
immediately remove and bond over any liens, notices and claims of liens or other
matters affecting any of the foregoing which are caused by or arise out of the
acts or omissions of the Purchaser Parties; (g) Purchaser shall maintain
worker's compensation insurance covering all of its employees involved in such
activities, and shall cause the Purchaser Parties entering upon the Property to
maintain, at all times, commercial general liability insurance coverage in an
amount not less than One Million Dollars ($1,000,000) or such other reasonable
amount as Seller and Purchaser may agree upon from time to time, naming Seller
as an additional insured, and worker's compensation insurance covering all
employees involved in such activities, and shall prior to the date on which
access or entry to the Property first occurs, provide Seller with evidence of
such insurance coverage, which insurance shall be in a form and issued by a
company reasonably satisfactory in all respects to Seller and shall not limit in
any way Purchaser's obligations or liabilities hereunder; (h) unless the Closing
has been consummated as herein provided, all materials, documents and other
Information, of whatsoever kind or nature, obtained by any of the Purchaser
Parties in the course of conducting Due Diligence, whether or not provided by
Seller (other than information which is published or which otherwise is
generally available from public records or is in the public domain)
(collectively, the "Evaluation Materials"), shall be treated as strictly
confidential and shall not be disclosed, except as may be required by law or as
may be necessary or required in connection with any proceedings or action
involving this Agreement or the Property, to any Person without Seller's prior
written consent, provided however, Purchaser may make disclosures to the
Purchaser Parties and Purchaser's agents, professionals, consultants, investors,
lenders, (including potential lenders), and attorneys for purposes of evaluating
the prospective purchase or financing so long as each such Person has first been
advised of and agrees to respect the terms of this confidentiality agreement;
(i) in the
14
event Purchaser does not elect to proceed to Closing in accordance with Section
-------
2.3 or terminates this Agreement pursuant to Sections 2.2(b) or 2.12, Purchaser
--- -----------------------
shall promptly, and no later than five (5) days thereafter, return to Seller all
Evaluation Materials provided to any of the Purchaser Parties by any of the
Seller Parties; (j) Purchaser shall bear all costs and expenses of its Due
Diligence, including the Due Diligence conducted by any of the Purchaser
Parties, and Seller shall have no obligation to pay for and/or reimburse any of
the Purchaser Parties for any of such costs and expenses, whether or not Closing
occurs hereunder, except as may be provided in Section 6.2 and (k) upon request,
-----------
Purchaser shall provide Seller with copies of any and all reports or other
information prepared by third parties on behalf of Purchaser with respect to the
Property. Purchaser hereby covenants and agrees to indemnify, defend and hold
harmless Seller Parties from and against any and all liability, damage, loss,
lien, expense, suit and claim, including reasonable attorneys' fees (whether
incurred in connection with nonjudicial action, prior to trial or at trial,
including any proceedings under the Bankruptcy Code, excluding, however, any
attorneys' fees incurred on appeal) and expenses, whether arising out of injury
or death to persons or damage to the Property or loss of any personal property
or otherwise, caused by or arising out of: (i) a breach by any of the Purchaser
Parties of the conditions, covenants and obligations set forth in this Section
-------
2.4; and/or (ii) the Due Diligence conducted by the Purchaser Parties or other
---
acts or omissions of the Purchaser Parties (but shall not be obligated to
indemnify, defend or hold harmless the Seller Parties for their own acts or
omissions or pre-existing conditions or the discovery or release of any
Hazardous Substances unless brought onto the Property by the Purchaser Parties
or resulting from any act or omission of the Purchaser Parties). Purchaser's
indemnity obligations shall not be limited by any workmen's compensation,
benefits, disability or other similar laws.
Section 2.5 Purchaser's Independent Investigation. Purchaser hereby
-------------------------------------
acknowledges and agrees that, in all cases except for the representations and
warranties expressly set forth in this Agreement or in the Conveyancing
Documents executed by Seller, the Seller makes no representations or warranties,
express or implied, regarding the Property or any matter related thereto,
including, without limitation, the adequacy, accuracy, completeness or content
of any Information or the suitability of the Property or such Information for
any purpose and that the Seller Parties shall have no liability to Purchaser
Parties, or any other Person claiming by, through or under any of them, arising
out of the Information, or to any Person to whom any of them has disclosed any
of the Information, or otherwise with respect thereto, and, except for the
representations and warranties expressly set forth in this Agreement or in the
Conveyancing Documents, neither the Purchaser Parties, any person or entity
claiming by, through or under any of them, nor any Person to whom any of such
Information was disclosed by any of the foregoing, shall have or make any claims
against any of the Seller Parties based upon any of the Information, including
the adequacy, accuracy, completeness or content of any Information or the
suitability of such Information for any purpose. Purchaser hereby acknowledges
that, except for the representations and warranties expressly set forth in this
Agreement or in the Conveyancing Documents, as of the Closing (i) it shall be
deemed to have relied solely on its own independent examination of the Property,
including the Leases and Contracts, and the Obligations, and Due Diligence in
consummating the purchase thereof in accordance with the terms of this
Agreement, (ii) that Purchaser is assuming the risk of future changes in the
applicable laws, and (iii) that Purchaser has not relied on, is not entitled to
rely on, and shall not rely on, and the Seller Parties are not liable for or
bound by, any warranties or representations (none being so implied), statements
(verbal or written), documents, reports, studies, Information
15
or other materials made or provided by any of the Seller Parties or any other
Person representing or purporting to represent or act on behalf of any of the
Seller Parties. Further, Purchaser acknowledges that, except for the
representations and warranties expressly set forth in this Agreement or in the
Conveyancing Documents, no representations or warranties, express or implied,
have been or shall be deemed to be made or provided by any of the Seller
Parties, relating to any of the Information, Due Diligence or the Property,
including the Leases and Contracts, the Obligations or otherwise, and Purchaser
hereby acknowledges that no representations or warranties, either express or
implied, have been or shall be deemed to be made by any of the Seller Parties
(except as expressly set forth in this Agreement or in the Conveyancing
Documents) with respect to any of the foregoing. To the extent any Person,
including any surveyors, appraisers, title agents, Escrow Agent, Tenants,
parties to Contracts or Other Contracts, Property Manager, Broker, attorneys or
engineering or environmental consultants, any of the Seller Parties or any other
Person, made any representations or warranties (except as expressly set forth in
this Agreement or in the Conveyancing Documents) or any other statements (verbal
or written) to Purchaser, or provided any documents, reports, studies,
information or other materials, Purchaser acknowledges it shall have no claim or
right of action against any of the Seller Parties arising therefrom, nor any
right to rescind, revoke or terminate this Agreement or any of the transactions
contemplated hereunder on account thereof except as expressly provided in
Sections 2.3, 2.6, 6.2 and 6.3.
------------------------------
Section 2.6 Property Conveyed As Is. In the event Purchaser elects to
-----------------------
proceed to Closing in accordance with Section 2.3, Purchaser shall be deemed to
-----------
be satisfied with and/or to have waived the results of the Due Diligence and to
have accepted the Property, including the Leases and Contracts, and Obligations
arising from and after Closing, "AS IS," "WHERE IS," and "WITH ALL FAULTS,"
including latent defects, without recourse to and without representation or
warranty by Seller (except as otherwise expressly set forth in Sections 5.2 and
----------------
7.11 or in the Conveyancing Documents), express or implied, whether statutory or
----
otherwise, and without any warranties of transfer (except as provided in
Sections 5.2 and 7.11 or the Conveyancing Documents), merchantability or fitness
---------------------
for a particular, or Purchaser's intended, use or purposes. Provided Purchaser
elects to proceed to Closing, the Property, including the Leases and Contracts,
and Obligations arising from and after Closing, shall be conveyed subject to all
easements, covenants, restrictions, title and survey exceptions and any matters
affecting the Property as of the Closing Date, subject to Section 2.10; provided
------------
however, Seller shall deliver the Conveyancing Documents which it is required to
deliver in accordance with Section 4.2. WITHOUT LIMITATION AND EXCEPT AS
-----------
EXPRESSLY SET FORTH IN SECTIONS 5.2 AND 7.11 OR IN THE CONVEYANCING DOCUMENTS,
---------------------
SELLER HEREBY EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED,
INCLUDING ANY WARRANTIES OF TRANSFER, QUALITY, FITNESS, MERCHANTABILITY OR
OTHERWISE, RELATING TO THE PROPERTY, INCLUDING THE LEASES AND CONTRACTS, AND
OBLIGATIONS TO BE CONVEYED HEREUNDER AND ANY WARRANTIES ARISING UNDER ARTICLES 2
AND 3 (OR SIMILAR SECTIONS) OF THE UNIFORM COMMERCIAL CODE IN EFFECT IN THE
JURISDICTION IN WHICH THE PROPERTY IS LOCATED OR TO WHICH THIS AGREEMENT IS
SUBJECT. Except as otherwise expressly set forth in Sections 2.7, 5.2, 5.3 or
-------------------------
7.11, none of the representations of Seller set forth in this Agreement shall be
----
deemed to survive Closing, and except as expressly set forth in Sections 5.2 or
---------------
7.11 or in the Conveyancing Documents, upon Closing, Purchaser shall be deemed
----
to have accepted the
16
Property, including the Leases and Contracts, and Obligations arising from and
after Closing, unconditionally and with any and all (none being so implied)
rights to rescind, set aside or avoid the transactions contemplated hereby or to
seek a reduction, adjustment, offset or recovery of the Purchase Price (except
for the adjustments and prorations required under Article III hereof), on the
grounds of retribution or otherwise, waived and relinquished. Except as
otherwise provided herein or in Sections 2.7, 5.2, 6.2, 6.3 or in the
---------------------------
Conveyancing Documents, from and after the Closing, Purchaser shall have no, and
hereby waives, any rights, claims and causes of action, whatsoever, against any
of the Seller Parties for any manner, cause or thing arising from or relating to
the Due Diligence, Information, Property, including the Leases and Contracts,
and Obligations arising from and after Closing. Notwithstanding the foregoing or
anything to the contrary contained elsewhere in this Agreement, if and to the
extent that at any time after the Closing any Person other than the Purchaser
Parties shall assert or file a claim or cause of action against Purchaser
relating to an act or omission of Seller occurring prior to Closing or to an
event, condition or circumstance that occurred, existed or arose prior to
Closing, nothing contained in this Agreement shall be deemed to limit or
restrict Purchaser's right to name Seller as a third party defendant in any such
claim or action; it being specifically understood and agreed that unless
provided herein to the contrary, Purchaser is not and shall not be deemed to be
assuming, and shall not assume, nor shall Purchaser be deemed to have waived any
rights, claims or causes of action that may be asserted or filed against
Purchaser in respect of, any Obligations of Seller, whether foreseen or
unforeseen, liquidated or contingent, which were to have been performed or
observed by Seller prior to Closing.
Section 2.7 Leasing and Management Agreements. Prior to Closing, and
---------------------------------
subject to the prorations to be made pursuant to Section 3.3(e), Seller shall
--------------
terminate all leasing, brokerage and management agreements and Other Contracts
currently in effect at the Property, including the management agreement with
Property Manager, and shall timely pay and remain liable for payment of all
amounts owing or other Obligations arising thereunder, if any, and hereby agrees
to indemnify, hold harmless and defend Purchaser from and against any and all
liabilities, claims and expenses, including reasonable attorneys' fees, arising
from such termination or the Seller's failure to pay the same when due (except
for amounts or other Obligations that arise out of the Purchaser Parties' Due
Diligence or other acts or omissions of the Purchaser Parties, including for
example, separate agreements for services, copies, etc. reached between any of
the Purchaser Parties and Property Manager or other parties to the Contracts or
Other Contracts, any damages to the Property or property of any of the Property
Manager or other parties to the Contracts or Other Contracts, and injuries to
the Property Manager or other parties to the Contracts or Other Contracts).
Section 2.8 New Contracts and Leases. For the period from the Effective
------------------------
Date to the Closing Date, Seller agrees not to enter into any new contract,
including any contract for services or capital improvements, which shall survive
Closing without first providing Purchaser with a copy of the same for
Purchaser's review and approval, which approval prior to the Due Diligence
Termination Date shall not be unreasonably withheld, conditioned or delayed by
Purchaser. Purchaser shall be deemed automatically and irrevocably to have
approved of any new contract (including any new amendment, renewal, expansion,
assignment, or extension of an existing Contract) unless Purchaser notifies
Seller in writing of its objection thereto, stating with specificity the reasons
for such objection, within three (3) business days from Purchaser's receipt of a
copy of same and related supporting information which Seller obtains in the
ordinary course.
17
For the period from the Effective Date to the Closing Date, Seller shall not be
entitled to enter into any new Lease (including any new amendment, renewal,
expansion, assignment, sublease or extension of any existing Lease) without
Purchaser's prior written consent without first providing Purchaser with a copy
of same, together with copies of all Contracts for any Lease-Up Costs associated
therewith, to the extent then available. During the period between the Effective
Date and the Due Diligence Termination Date, Purchaser shall not unreasonably
withhold, condition or delay its consent to any new Lease (including any new
amendment, renewal, expansion, assignment, sublease or extension of any existing
Lease) and (b) during the period between the Due Diligence Termination Date and
the Closing Date, Purchaser may withhold its consent to any new Lease (including
any new amendment, renewal, expansion, assignment, sublease or extension of any
existing Lease) in its sole and absolute discretion. Purchaser's consent to a
new Lease (including any new amendment, renewal, expansion, assignment, sublease
or extension of any existing Lease) shall be deemed given unless Seller receives
notice of Purchaser's objection thereto, stating with specificity the reasons
for such objection, within three (3) business days from Purchaser's receipt of
copies of same as provided herein. All new contracts and Leases (including any
new amendment, renewal, expansion, assignment, sublease or extension of an
existing Contract or Lease) approved or deemed approved pursuant to this Section
shall automatically be deemed added to Exhibit P or Exhibit E, as applicable,
--------- ---------
and all new contracts and Leases (including any new amendment, renewal,
expansion, assignment, sublease or extension of an existing Contract or Lease)
approved or deemed approved pursuant to this Section, including any Lease-Up
Costs associated therewith (including the Lease-Up Costs for the New Seventh
Floor Lease), shall be assigned to and assumed by Purchaser at Closing, subject
to the provisions of Section 3.3(e). Purchaser further hereby specifically
approves the Contracts identified as "pending" on Exhibit P, so long as the same
---------
are terminable by Purchaser without penalty or cost on no more than thirty (30)
days' prior notice. Seller may enter into Other Contracts (including any
amendment, renewal, expansion, assignment, sublease or extension of Other
Contracts) without restriction and such Other Contracts shall not be assigned to
or assumed by Purchaser and shall be terminated without cost or liability to
Purchaser, unless the parties otherwise agree in writing at Closing. Further,
if, prior to the Due Diligence Termination Date, Purchaser objects to any new
contract (including any new amendment, renewal, expansion, assignment, or
extension of an existing Contract) submitted for its review and approval, Seller
shall nonetheless be entitled to enter into the same prior to expiration of the
Due Diligence Termination Date and Purchaser's sole remedy shall be to elect not
to proceed to Closing in accordance with Section 2.3 and receive a refund of the
-----------
▇▇▇▇▇▇▇ Money pursuant to Section 3.5. If, after the Due Diligence Termination
-----------
Date and provided Purchaser has elected to proceed to Closing in accordance with
Section 2.3, Purchaser objects to any new contract (including any such new
-----------
amendment, renewal, expansion, assignment, or extension of an existing Contract)
submitted for its review and approval, Seller shall not be entitled to enter
into the same for the period from the Due Diligence Termination Date to the
Closing Date, without the prior approval of the Purchaser, which may be
withheld, conditioned or delayed in Purchaser's sole discretion.
Section 2.9 Termination of Contracts, Other Contracts and/or Leases.
-------------------------------------------------------
For the period from the Due Diligence Termination Date to the Closing Date,
Seller agrees: (a) not to terminate, modify or amend any Contracts or Leases,
except in accordance with the terms thereof and this Agreement, including upon
default or expiration of the stated term thereof, or pursuant to Section 2.8;
-----------
and (b) to terminate the Other Contracts at or prior to Closing, at no cost or
expense to Purchaser.
18
Section 2.10 No New Encumbrances. For the period from the Effective
-------------------
Date to the Closing Date and except as otherwise provided in Sections 2.7
------------
through 2.11, Seller shall not: (a) voluntarily convey all or any portion of the
------------
Property or any rights or interests therein (except conveyance to effect or
facilitate a Like-Kind Exchange in accordance with Section 7.25), (b) enter into
------------
any new security document, easement or other agreement affecting title to all or
any portion of or interest in the Property, other than Leases, Contracts or
Other Contracts entered into pursuant to Sections 2.7, 2.8 and/or 2.9, or (c)
----------------------------
amend any existing agreement granting to any Person any rights with respect to
all or any portion of the Property or any interests therein (other than Leases,
Contracts or Other Contracts and any amendments, renewal, expansion, assignment,
sublease or extension thereof entered into pursuant to Sections 2.7, 2.8 and/or
------------------------
2.9), without the prior written approval of Purchaser, which approval shall not
----
be unreasonably withheld, delayed or conditioned by Purchaser in respect of the
matters referenced in (b) and (c) prior to the Due Diligence Termination Date
and is in Purchaser's sole discretion after the Due Diligence Termination Date
provided Purchaser elects to proceed to Closing in accordance with Section 2.3.
-----------
If prior to the Closing Date, all or any portion of the Property or any rights
therein becomes subject to any Monetary Exception, (but excluding any
condemnation or eminent domain proceeding) Seller agrees to pay or discharge
(including by bonding over the same) such Monetary Exception at or prior to
Closing.
Section 2.11 Ordinary Course of Business. For the period from the
---------------------------
Effective Date to the Closing Date, Seller agrees: (a) to manage, operate and
lease the Property, or cause the Property to be managed, operated and leased,
substantially in the ordinary and usual manner in which the Seller and Property
Manager conducted their business prior to entering into this Agreement, provided
however, it is understood and agreed that Seller shall not be obligated to
undertake any capital repairs (other than maintenance in the ordinary course) or
improvements, whether or not reflected in the budget for the Property; (b) to
maintain its existing insurance coverage and policy(ies) in place and provide to
Purchaser copies of the certificate(s) of insurance relating thereto; (c) not to
dispose of any portion of the Personal Property identified on Exhibit S (other
---------
than inventory and supplies used or sold in the normal course of business),
unless replaced with an item of equal or greater value, quality or utility; (d)
not to take any affirmative actions to modify the zoning applicable to the
Property and not to acquiesce to any zoning modification; and (e) to promptly
provide Purchaser with copies of all written notices which it receives from and
after the date hereof from any Governmental Authorities, Tenant or other third
party of violations of any statutes, laws, ordinances, rules, legal regulations,
Leases, Contracts or private restrictions of record applicable to the Property.
Section 2.12 Casualty/Condemnation. In the event any condemnation or
---------------------
eminent domain proceedings are initiated prior to the Closing which might result
in the taking of all or any material portion of the Property or the use thereof
or any fire, flood, explosion, accident or other casualty occurs which damages
or destroys all or any material portion of the Property, then Purchaser may
elect to: (a) proceed to Closing without adjustment or offset to the Purchase
Price (except for an adjustment to the Purchase Price upon the occurrence of a
casualty in an amount equal to the lesser of (i) the estimated reasonable,
out-of-pocket cost to repair the physical damages to the Property caused by such
casualty, or (ii) (a) the deductible under Seller's insurance policy relating to
such physical damages to the Property if insured casualty damage, or (b)
$250,000 if uninsured casualty damage), in which event Seller shall assign at
Closing all of its right, title and interest in and to, and deliver at Closing
if received prior thereto or following
19
Closing if and when received thereafter, such insurance and/or condemnation
proceeds, if any, as the same are paid or payable on account of such
condemnation or casualty, except that proceeds on account of rental and/or
business interruption coverage or losses shall be prorated as of the Closing
Date when collected, and less and except amounts previously expended by Seller
to repair such damages; or (b) terminate this Agreement by written notice to
Seller within ten (10) days after Purchaser receives notice of any such casualty
or condemnation (but no later than the Closing Date), in which event neither
Seller nor Purchaser shall have any further rights or obligations hereunder or
relating hereto, except pursuant to such provisions hereof as survive
termination of this Agreement, and Purchaser shall be entitled to an immediate
refund of the ▇▇▇▇▇▇▇ Money in accordance with Section 3.5. In no event shall
-----------
Seller have any obligation to repair or restore the Property or any portion
thereof unless Seller's failure to commence repairs or restoration would give
rise to a Tenant's right to terminate its Lease pursuant to the express terms
thereof. The term "material" as used herein shall mean a casualty as a result of
which any Lease is terminated or terminable at the option of the Tenant (unless
the termination option is waived) or which would require more than 60 days to
repair or would cost more than $100,000 to repair and restore or a condemnation
which Purchaser reasonably determines materially adversely affects the use and
operation of the Property or which would give rise to a Tenant's right, that has
not been waived, to terminate its Lease pursuant to the express terms thereof.
In the event of any condemnation or casualty which is not material, Purchaser
shall be deemed to have elected the rights and remedy in subparagraph (a) above
and shall not have the right or option to terminate.
Section 2.13 Title and Survey. Seller has heretofore ordered, at
----------------
Seller's expense, and delivered, and Purchaser acknowledges receipt of, the
Title Commitment with respect to the Property which reflects Seller as the owner
of record thereof and the documents of record referenced therein. By December
13, 2001, Seller shall deliver updated surveys for the Property (each and
together, the "Survey"). Purchaser shall have until the date that is three (3)
business days after receipt of the Survey to give written notice (the "First
Title Notice") to Seller of such objections as Purchaser may have to any
exceptions to title or matters of Survey disclosed in the Title Commitment or in
any Survey or otherwise in Purchaser's examination of title to the Property. If
Purchaser fails to timely give Seller a First Title Notice, Purchaser shall be
deemed to have accepted all matters reflected on the Title Commitment and the
Survey. Seller shall have the right, but not the obligation (except as to
Monetary Objections), to attempt to remove, satisfy or otherwise cure any
exceptions to title to which the Purchaser so objects. Within three (3) business
days after receipt of Purchaser's First Title Notice, Seller shall give written
notice to Purchaser informing the Purchaser of Seller's election with respect to
such objections. If Seller fails to give written notice of election within such
three (3) business day period, Seller shall be deemed to have elected not to
attempt to cure the objections (other than Monetary Objections). If Seller
elects to attempt to cure any objections, Seller shall be entitled to one or
more reasonable adjournments of the Closing of up to but not beyond the
thirtieth (30th) day following the initial date set for the Closing to attempt
such cure, but, except for Monetary Exceptions, Seller shall not be obligated to
expend any sums, commence any suits or take any other action to effect such
cure. With respect to any exceptions to title of which Purchaser has the right
to object, except as to Monetary Exceptions, if Seller elects, or is deemed to
have elected, not to cure any exceptions to title to which Purchaser has
objected or if, after electing to attempt to cure, Seller determines that it is
unwilling or unable to remove, satisfy or otherwise cure any such exceptions,
Purchaser's sole remedy hereunder in such event shall be either (i) to accept
20
title to the Property subject to such exceptions as if Purchaser had not
objected thereto and without reduction of the Purchase Price, or (ii) to
terminate this Agreement within three (3) business days after receipt of written
notice from Seller either of Seller's election not to attempt to cure or that
Seller is unable or unwilling to do so, or three (3) business days after Seller
is deemed hereunder to have elected not to attempt to cure such objections (and
upon any such termination under clause (ii) above, Escrow Agent shall return the
▇▇▇▇▇▇▇ Money to Purchaser). Notwithstanding anything to the contrary contained
elsewhere in this Agreement, Seller shall be obligated to cure or satisfy all
Monetary Exceptions at or prior to Closing, and may use the proceeds of the
Purchase Price at Closing for such purpose. To the extent any Monetary Exception
has not been cured or satisfied at or prior to Closing, Purchaser, at its
election, shall be entitled to apply a portion of the Purchase Price to effect
such cure (or withhold such portion as may be reasonably necessary to satisfy or
cure such Monetary Exception) and Purchaser shall receive a credit against the
Purchase Price for any such amounts so applied or withheld.
Between the date of the First Title Notice and Closing, Purchaser may order
an update to the Title Commitment and/or the Survey and thereafter notify Seller
in writing (the "Gap Notice") of any exceptions to title or survey matters (a)
that did not exist as of the effective date of the Title Commitment or the last
revision date of the prior Survey and are not due to acts done or suffered by or
through the Purchaser Parties and (b) are first raised by the Title Company or
surveyor between the effective date of the Title Commitment or the last revision
date of the prior Survey and the Closing, provided that Purchaser must notify
Seller of such new exceptions to title on the date which is the earlier of (i)
two (2) business days after Purchaser's receipt of an updated Title Commitment
(or supplement to the Title Commitment) or other written notice disclosing the
existence of such new exceptions to title and (ii) one (1) business day prior to
the Closing. If Purchaser fails to so notify Seller as aforesaid, such new
exceptions to title shall be deemed to be Permitted Exceptions. If Purchaser
sends a Gap Notice to Seller, Purchaser and Seller shall have the same rights
and obligations with respect to such Gap Notice as apply to the First Title
Notice in the immediately preceding grammatical paragraph and the Closing shall
be adjourned as necessary to satisfy the time periods provided therein.
Section 2.14 Tenant Estoppel Certificates. Seller shall endeavor (but
----------------------------
without obligation to incur any cost or expense) to obtain and deliver to
Purchaser two (2) business days prior to the Due Diligence Termination Date the
Tenant Estoppel Certificates substantially in the forms attached hereto as
Exhibits N-1 through N-7 duly executed by each of the Tenants named therein,
each of which Tenant Estoppel Certificates establish that the applicable Tenant
is not in bankruptcy, that neither Tenant nor the landlord is in default under
such Tenant's Lease, that no offsets or other claims or counterclaims exist
under such Lease (other than any amounts that Seller shall credit Purchaser at
Closing), and that confirms the terms of such Tenant's Lease and that such Lease
is in full force and effect and, in the case of the Tenant Estoppel Certificates
for TCI Great Lakes, Inc. and Zurich American, that such Tenants have waived
their respective purchase rights of the Property with respect to the transaction
contemplated herein. The inability of Seller to obtain and deliver any or all of
the Tenant Estoppel Certificates (Seller having endeavored to obtain the same
but without obligation to incur any cost or expense) shall not constitute a
default by Seller hereunder. Seller acknowledges that if Seller is unable to
deliver to Purchaser Tenant Estoppel Certificate from the Required Tenants on or
before the date that is two (2) business days prior to the Due Diligence
Termination Date, Purchaser may exercise its right to terminate this Agreement
by giving notice of its election not to proceed to Closing on or
21
before the Due Diligence Termination Date or by failing to give notice of its
election to proceed to Closing on or before the Due Diligence Termination Date,
provided that if Purchaser does not exercise its right to terminate by the Due
Diligence Termination Date (whether by notice of termination or failure to give
notice to proceed to Closing), then Purchaser shall be deemed to have waived its
right to terminate this Agreement pursuant to this Section 2.14.
Section 2.15 Subdivision Bond. Seller shall cause the Travelers Casualty
----------------
and Surety Company of America to continue to maintain the surety bond currently
held by the Village of Schaumburg in the amount of $828,482 until such date as
the Village of Schaumburg no longer requires the posting of such bond by Seller
or the owner of the Property, and Seller shall remain responsible at its sole
cost and expense for completion of any work or the performance of any actions
necessary to secure the release of said bond. Purchaser acknowledges that Seller
shall be solely entitled to such surety bond or any proceeds therefrom upon
release by the Village of Schaumburg.
Section 2.16 Restrictions Estoppels. Seller shall endeavor (but without
----------------------
obligation to incur any cost or expense) to obtain and deliver to Purchaser
estoppel certificates on the forms attached hereto as Exhibit W-1 and Exhibit
----------- -------
W-2 as modified to reflect the current state of facts ("Restrictions Estoppels")
---
on or before the date that is two (2) business days prior to the Due Diligence
Termination Date. Seller acknowledges that if the Restrictions Estoppels, as
modified, are not satisfactory to Purchaser, in its sole and absolute
discretion, Purchaser may terminate this Agreement by giving notice of its
election not to proceed to Closing on or before the Due Diligence Termination
Date or by failing to give notice of its election to proceed to Closing on or
before the Due Diligence Termination Date, provided that if Purchaser does not
exercise its right to terminate by the Due Diligence Termination Date (whether
by notice of termination or failure to give notice to proceed to Closing), then
Purchaser shall be deemed to have waived its right to terminate this Agreement
pursuant to this Section 2.16.
------------
Section 2.17 Lot 4A Parking. After the Closing, Seller will retain title to
--------------
and intends to sell for development, the property designated as "Lot 4A" (as
defined in the Declaration), which is adjacent to the Property. In order to
facilitate the development and sale of Lot 4A, Seller shall have the right to
designate not more than twenty (20) parking spaces on the Property (the "Lot 4A
Parking Spaces") which shall remain available for the non-exclusive use by the
owner of Lot 4A in common with the owners, tenants and occupants of the
Property, pursuant to the cross-parking easements established under the
Declaration. Not later than ten (10) days after the Effective Date, Seller shall
prepare and deliver to Purchaser a plan indicating the location of the Lot 4A
Parking Spaces, which shall be subject to Purchaser's approval, not to be
unreasonably withheld or delayed. If Purchaser and Seller fail to agree on the
location of the Lot 4A Parking Spaces within such ten (10) day period, then
Seller shall have the right to terminate this Agreement, in which event the
▇▇▇▇▇▇▇ Money shall be returned to Purchaser and neither Seller nor Purchaser
shall have any further obligations hereunder or relating hereto, except pursuant
to such provisions hereof that expressly survive the termination of this
Agreement. If the location of the Lot 4A Parking Spaces are agreed upon and the
parties proceed to Closing hereunder, then the Deed shall include an express
reservation of the rights hereby reserved by Seller, as the owner of Lot 4A with
respect to the Lot 4A Parking Spaces. In addition, Purchaser shall cooperate
with Seller, as the owner of Lot 4A in good faith (but without obligation to
incur any expenses or liabilities not expressly contemplated hereunder) in
connection with the site plan
22
approval and other land use entitlements that may be required for the
development of Lot 4A, to the extent that such site plan approval or other
entitlements are conditioned upon Lot 4A Parking Spaces. The obligation of
Purchaser, pursuant to the preceding sentence, shall survive the Closing
hereunder until the sale of Lot 4A by Seller to a Person that is not affiliated
with Seller.
ARTICLE III
-----------
PURCHASE PRICE; CLOSING ADJUSTMENTS
-----------------------------------
Section 3.1 ▇▇▇▇▇▇▇ Money; Purchase Price.
-----------------------------
(a) ▇▇▇▇▇▇▇ Money. As an express condition precedent to Seller's
-------------
obligations under this Agreement, the ▇▇▇▇▇▇▇ Money shall be deposited by
Purchaser with Escrow Agent concurrently with Purchaser's execution of this
Agreement, to be held as ▇▇▇▇▇▇▇ Money for the benefit of Seller, subject
to the provisions of Section 3.5. The ▇▇▇▇▇▇▇ Money shall be paid by
-----------
Purchaser (and no other Person) in immediately available funds, in lawful
money of the United States of America, which shall be legal tender for all
debts and dues, public and private at the time of payment. The ▇▇▇▇▇▇▇
Money shall be held and disbursed by Escrow Agent in accordance with the
terms of the ▇▇▇▇▇▇▇ Money Trust Agreement and this Agreement. The ▇▇▇▇▇▇▇
Money shall be applied against payment of the Purchase Price on the Closing
Date in accordance with the terms of this Agreement, subject to Section
-------
3.5.
---
(b) Purchase Price. In consideration of and as a condition
--------------
precedent to Seller's conveyance of the Property, Purchaser shall pay to
Seller the aggregate purchase price of Eighty-Nine Million Two Hundred
Seventy-Five Thousand and No/100 United States Dollars ($89,275,000.00)
("Purchase Price"), adjusted to account for the ▇▇▇▇▇▇▇ Money and all
prorations, credits and adjustments pursuant to the terms of this
Agreement, together with any and all other sums that are to be paid by
Purchaser pursuant to this Agreement, including the costs and expenses
identified in Sections 3.2 and 3.3 and all other amounts shown as payable
--------------------
by Purchaser on the Settlement Statement on the Closing Date. The Purchase
Price (subject to the adjustments and prorations in this Article III),
together with any and all other sums to be paid to Seller at Closing by
Purchaser in connection with this Agreement, shall be paid to Seller by
Purchaser (and no other Person other than Escrow Agent pursuant to the
Escrow Agreement) in immediately available funds, in lawful money of the
United States of America, which shall be legal tender for all debts and
dues, public and private, at the time of payment. All such funds shall be
deposited by Purchaser with Escrow Agent on or prior to 1:00 p.m. Central
Time on the Closing Date, to be held in escrow and disbursed pursuant to
the terms of the Escrow Agreement.
Section 3.2 Closing Costs. Purchaser shall pay all costs and expenses
-------------
incurred by it and/or the Purchaser Parties associated with the Due Diligence
and any other investigations of the Purchaser Parties, and/or the purchase and
sale contemplated hereunder, including any and all environmental assessments and
reports, structural and engineering inspections, surveys (to the
23
extent the cost of such surveys exceeds $7,200), any cost associated with
satisfying Purchaser's reinsurance requirements for the owner's title policy,
insurance premiums associated with the cost of any endorsements relating to the
owner's title policy, including, without limitation, any charge for "extended
coverage" and the Required Endorsements, one-half (1/2) of any transfer taxes
due the local municipality, Purchaser's attorneys' fees and expenses, and all
costs and expenses of obtaining any Financing that Purchaser may elect to obtain
(including any fees, financing costs, and transfer and recordation taxes and
recording fees in connection therewith and all escrow, settlement, handling
and/or other fees and expenses to be paid to Escrow Agent in connection with any
Financing) and one-half (1/2) of any escrow, settlement, handling and/or other
fees and expenses to be paid Escrow Agent in connection with the Escrow
Agreement and the ▇▇▇▇▇▇▇ Money Trust Agreement; provided however, Seller agrees
to pay at Closing the base title insurance premium for issuance of an owner's
title policy in the amount of the Purchase Price (excluding, however, any cost
associated with satisfying Purchaser's reinsurance requirements), on the
standard form in use in the State of Illinois, all state and county transfer
taxes, one-half (1/2) of any transfer taxes due to the local municipality, the
cost of obtaining a ALTA surveys of Windy Point I and Windy Point II (not to
exceed $7,200) and the transfer fee, if any, payable to Bank of America, N.A.
for the transfer to Purchaser of the beneficial interest of letter of credit
deposited by Global Knowledge Network, Inc. Seller shall also pay all costs and
expenses incurred by it and/or the Seller Parties associated with the purchase
and sale contemplated hereunder, including Seller's attorneys' fees and
expenses, amounts owed to Broker and one-half (1/2) of any escrow, settlement,
handling and/or other fees and expenses to be paid to Escrow Agent in connection
with the Escrow Agreement and the ▇▇▇▇▇▇▇ Money Trust Agreement. All such costs
and expenses shall be paid in full on or prior to the Closing Date, unless
otherwise agreed to and specified by the parties in the Settlement Statement.
Section 3.3 Prorations and Adjustments. Prorations and adjustments shall be
--------------------------
made between Purchaser and Seller, and shall be set forth in the Settlement
Statement agreed to by the parties on or prior to the Closing Date, in
accordance with Sections 3.3(a) through (e) below, based upon the best evidence
---------------------------
then available. All prorations, other than any proration relating to
pass-throughs and other Tenant reimbursable amounts under the Leases ("Tenant
Reimbursable Amounts ") or to Protest Proceedings as described in Section 3.3(f)
below ("Protest Proceeding Amounts"), shall be deemed final at Closing. The
Tenant Reimbursable Amounts and the Protest Proceeding Amounts shall be
finalized by the parties no later than six (6) months after the Closing Date.
Notwithstanding the foregoing, the parties understand and agree that any
prorations and adjustments to the Purchase Price as aforesaid shall not be
deemed to relieve any party for obligations and liabilities retained, assumed or
assigned pursuant to this Agreement or in any of the Conveyancing Documents,
including the respective obligations and liabilities under this Section or
Section 3.4. Unless otherwise stated hereafter, all prorations and adjustments
-----------
shall be made on a per diem basis, with Seller responsible for the number of
days in the applicable period up to and including the Closing Date and Purchaser
responsible for the period commencing on the day after the Closing Date and all
days thereafter. In addition to the foregoing and notwithstanding anything
contained herein to the contrary, if Seller fails to receive the Purchase Price,
as adjusted herein, before 3:00 p.m. Central Time on the Closing Date, the
proration and adjustments set forth on the Settlement Statement shall be further
adjusted so that all proration items shall be prorated as of the business day
immediately following the Closing Date. Any amount which Purchaser is obligated
to pay in accordance with the prorations provided below: (A) which has been paid
by Seller as of the Closing Date, or will be paid outside
24
Closing by Seller in the event the invoices for same are received by Seller
within the five (5) business day period prior to the Closing Date, at Seller's
election, shall be reimbursed by Purchaser or treated as a credit in favor of
Seller on the Closing Date, and thereafter Seller shall be solely responsible
for making such payment; or (B) which has not been and will not be paid by
Seller as of the Closing Date shall be assumed by and become the sole
responsibility of Purchaser and no adjustment shall be made at Closing for same.
Any amount which Seller is obligated to pay in accordance with the prorations
provided below which has not been paid as of the Closing Date shall: (1) be
treated as a credit in favor of Purchaser on the Closing Date and Purchaser
shall assume and be solely responsible for making such payment; or (2) at
Seller's option in the event the invoices for same are received by Seller within
the five (5) business day period prior to the Closing Date, shall be paid by
Seller outside Closing and Seller shall be solely responsible for timely making
such payment. Each party agrees to provide the other with written evidence of
payment of such amounts upon request. Seller agrees to indemnify, defend and
hold Purchaser harmless from and against any and all claims, liens, damages,
demands, causes of action, liabilities, lawsuits, judgments, losses, costs and
expenses (including, but not limited to, attorneys' fees and expenses) asserted
against or incurred by Purchaser by reason of or arising out of any failure by
Seller to make the payments to be made by Seller in accordance with the
prorations provided below, to the extent Purchaser was not given a credit
therefor at Closing.
(a) Taxes. All real estate taxes and installments of special
-----
assessments, whether assessed by the state, county, township, school
district or any other Governmental Authority having jurisdiction over the
Property, payable (whether or not prepaid by Seller) shall be prorated on a
cash basis as of the Closing Date between Purchaser and Seller based on the
actual bills paid in the year of the Closing (without regard to whether
such bills pertain to a tax period prior to the Closing Date). Purchaser
shall be solely responsible for the payment of any installments of real
estate taxes due and payable after the Closing Date, even if such
installments pertain to tax periods occurring prior to the Closing Date.
(b) Income. All Rents and any other prepaid income (specifically
------
excluding any insurance and/or condemnation proceeds) collected by Seller
prior to Closing shall be prorated as of the Closing Date between Purchaser
and Seller, with Seller entitled to all Rents (including payments from
Tenants on account of taxes and operating expenses) and other prepaid
income allocable to the period prior to and including the Closing Date and
Purchaser entitled to all Rents and other prepaid income allocable to all
days after the Closing Date. Tenant Service Payments shall not be prorated
at Closing as Seller is entitled to all Tenant Service Payments. In
addition to the foregoing, at Closing Seller shall pay as an expense at
Closing the Estimated New Seventh Floor Rent Credit (which expense shall be
subject to reproration as provided in Section 3.4(e)). With respect to
security deposits, Purchaser shall receive at Closing a credit for all
outstanding cash security deposits under the Leases which are held by
Seller as of the Closing Date (and not previously applied by Seller under
the Leases), together with such interest, if any, as may be due thereon to
Tenants as of the Closing Date under the express terms of the Leases or, if
greater and required, applicable law. From and after Closing, all such
security deposits so credited to Purchaser shall thereafter be deemed
transferred to Purchaser and Purchaser shall assume and be solely
responsible for the payment of such security deposits to Tenants in
accordance with the Leases and applicable law. With
25
respect to any non-cash security deposits (including letters of credit)
Purchaser shall not be entitled to a credit but Seller shall deliver same
to Purchaser at Closing and Seller shall cooperate with Purchaser after
Closing to effectuate the transfer of such non-cash security deposits.
Seller shall be entitled to a refund of and/or if assigned to Purchaser
receive a credit for, any utility deposits, any deposits with third parties
and any bonds posted under any of the Contracts and Other Contracts.
Notwithstanding any provision of this Agreement or any of the Conveyancing
Documents executed and delivered pursuant hereto, Seller shall retain all
rights to refunds, accrued and unpaid claims, causes of action and rights
of reimbursement from third parties, including, without limitation, the
OCIP Refund (other than amounts under the Contracts and Rents under the
Leases which shall be prorated as aforesaid), bonds (including payment and
performance), and any other claims for payment Seller may have to the
extent arising or relating to the period prior to Closing (collectively,
the "Reserved Claims"). The foregoing is not intended to negate the
assignment to Purchaser at Closing of any guarantees or warranties relating
to the Property as provided herein. At Purchaser's request, Seller hereby
agrees to reasonably cooperate with Purchaser, at Purchaser's sole cost and
expense, to enforce any such guarantees and warranties.
(c) Expenses. All payments under the Contracts and payments for
--------
utilities, common area and other operating and maintenance expenses and
charges, fuel oil, association fees, expenses and charges, permit fees,
license fees and any accrued or prepaid expenses relating to the Property
(excluding insurance premiums) shall be prorated as of the Closing Date
between Purchaser and Seller. Purchaser shall make arrangements, at its
sole expense, to have all utilities, other than those utilities in the
names of Tenants, transferred directly to its account as of the Closing
Date, and Seller shall cooperate with Purchaser in arranging such transfer.
(d) Uncollected Rents. Purchaser agrees to pay to Seller, upon
-----------------
receipt, any Rents that apply to periods prior to Closing but are received
by Purchaser after Closing; provided, however, that any Rents received by
Purchaser after Closing shall be applied first to any current amounts owing
by such Tenants, then to delinquent Rents in the order in which such Rents
are most recently past due, with the balance, if any, paid over to Seller
to the extent of delinquencies existing at the time of Closing to which
Seller is entitled. Notwithstanding the foregoing, Purchaser shall
immediately pay to Seller any Tenant Service Payments received by Purchaser
after the Closing Date. From and after Closing, Seller may attempt to
collect (i) any delinquent Rents from those Tenants that were identified by
Seller to Purchaser on or before the date that is three (3) days prior to
the Due Diligence Termination Date as having delinquent Rents and (ii)
Tenant Service Payments and may institute any lawsuit or collection
procedures in connection therewith, but may not evict any Tenant, provided
Seller shall provide Purchaser with notice prior to filing any such action
or procedure. Purchaser hereby agrees to use commercially reasonable
efforts, at Seller's sole expense, to collect any delinquent Rents, Tenant
Service Payments or other payments from the Tenants, which commercially
reasonably efforts shall specifically exclude any obligation to declare
such Tenant in default under its Tenant Lease or to file suit to collect
such amounts. Any reimbursements payable by any Tenant under the terms of
any Lease (other than Tenant Service Payments) affecting the Property as of
the Closing Date, which reimbursements pertain to such Tenant's pro
26
rata share of increased operating expenses or common area maintenance costs
incurred with respect to the Property for the year in which Closing occurs,
shall be prorated upon Purchaser's actual receipt of any such
reimbursements, on the basis of the number of days of Seller and
Purchaser's respective ownership of the Property during the period in
respect of which such reimbursements pertain within thirty (30) days after
Purchaser's receipt thereof. Conversely, if any Tenant under any such Lease
shall become entitled at any time after Closing to a refund of tenant
reimbursements actually paid by such Tenant prior to Closing, then, Seller
within thirty (30) days following Purchaser's demand therefor, pay to
Purchaser any amount equal to Seller's pro rata share of such reimbursement
refund obligations, said proration to be calculated on the same basis as
hereinabove set forth. Seller shall approve the tenant reconciliation
statement prepared by Purchaser for calendar year 2001, which approval
shall not be unreasonably withheld and which approval shall be deemed given
if Seller fails to object to such reconciliation statement in writing
within seven (7) business days after receipt of such reconciliation
statement.
(e) Lease-Up Costs. Purchaser shall assume and be solely responsible
--------------
for all Lease-Up Costs allocable to Leases entered into after the Effective
Date (other than the New Seventh Floor Lease) which are approved (or deemed
approved) by Purchaser in accordance with and to the extent required by
Section 2.8 above, including any Contracts, leasing agreements and
brokerage agreements relating to same (whether or not such Contracts or
agreements are terminated or assigned to Purchaser). Seller shall provide a
credit to Purchaser at Closing, and thereupon Purchaser shall assume and be
solely responsible for, all Lease-Up Costs allocable to the New Seventh
Floor Lease and the Lease-Up Costs shown on Exhibit X, to the extent unpaid
---------
by Seller prior to Closing. Seller shall supply, on or before the Closing
Date, invoices and statements for all Lease-Up Costs for which Purchaser is
entitled to receive a credit at Closing. From and after Closing, Purchaser
shall be solely responsible for the payment of all Lease-Up Costs payable
in connection with any Leases (including any amendments, renewals,
expansions or extensions of existing Leases) occurring or arising under the
Leases, whether executed before or after the Closing Date and the Lease-Up
Costs for which Purchaser was given a credit at Closing; provided, however,
with respect to Leases executed prior to the Closing, Purchaser shall only
be responsible for Lease-Up Costs for which Purchaser has been given a
credit at Closing, except in connection with the exercise after Closing of
any renewals, expansions or extensions of any such Leases executed prior to
Closing, for which Purchaser shall be responsible for all Lease-Up Costs,
notwithstanding the fact Purchaser did not receive a credit for such
amounts at Closing. Purchaser agrees to indemnify, defend and hold Seller
harmless from and against any and all claims, liens, damages, demands,
causes of action, liabilities, lawsuits, judgments, losses, costs and
expenses (including but not limited to attorneys' fees and expenses)
asserted against or incurred by Seller by reason of or arising out of any
failure by Purchaser to pay to the Person(s) entitled to those Lease-Up
Costs for which Purchaser received a credit at Closing. To the extent of
any inconsistency with the provisions of Section 2.8, the terms of this
-----------
provision shall control.
(f) Tax Protests. Notwithstanding any provision in this Agreement to
-------------
the contrary, any tax refunds or proceeds (including interest thereon) on
account of a
27
favorable determination resulting from a challenge, protest, appeal or
similar proceeding relating to taxes and assessments relating to the
Property ("Protest Proceedings"): (i) for all tax periods in which Seller
is responsible for payment of the taxes hereunder shall be retained by and
paid exclusively to Seller; and (ii) for all tax periods in which Purchaser
is responsible for payment of the taxes hereunder, shall be paid to
Purchaser after reimbursement to Seller for all fees, expenses and costs
(including reasonable attorneys' and consultants' fees) incurred by Seller,
in connection with the Protest Proceedings. Neither Seller nor Purchaser
shall settle any Protest Proceedings in which taxes for the tax period for
which the other party is responsible are being adjudicated without the
consent of such party, which consent shall not be unreasonably withheld,
conditioned or delayed. Purchaser and Seller shall cooperate in the pursuit
of any Protest Proceedings and in responding to reasonable requests of the
other for information concerning the status of, and otherwise relating to,
such Protest Proceedings, provided however, neither party shall be
obligated to incur any non-de minimis out-of-pocket fees, costs and
expenses in responding to the requests of the other.
Seller and Purchaser shall endeavor to prepare a statement detailing the
prorations and adjustments estimated to be due as of the Closing Date pursuant
to this Section no later than three (3) business days prior to the Closing Date.
Purchaser and Seller hereby acknowledge and agree that, except for the
adjustments being made pursuant to this Section 3.3, the sums to be paid
-----------
pursuant to Section 3.2 and the adjustments, if any, to be made pursuant to
-----------
Section 2.12 upon the occurrence of a casualty or condemnation prior to Closing,
------------
no other adjustments shall be made to the Purchase Price.
Section 3.4 Post-Closing Inspection, Verification and Adjustments.
-----------------------------------------------------
(a) Purchaser Cooperation. Following Closing and until June 1,
---------------------
2002, the Purchaser Parties shall, upon request, give the Seller Parties
and their respective agents and contractors, access to Purchaser's books
and records at Purchaser's offices for purposes of verifying collections
and remittances required pursuant to this Agreement and for any other
purpose relating to Seller's prior ownership of the Property, at reasonable
times and upon reasonable advance notice to Purchaser. The Seller Parties
shall keep all information obtained pursuant to this Section in confidence,
except to the extent required to defend or prosecute any litigation arising
out of or related to their prior ownership of the Property (including
Protest Proceedings and the Reserved Claims) or for purposes of disclosure
to investors or otherwise required by law.
(b) Seller Cooperation. Following Closing and until June 1, 2002,
------------------
the Seller Parties shall, upon request, give the Purchaser Parties and
their respective agents access to Seller's books and records, at Seller's
offices, for purposes of verifying collections and remittances required
pursuant to this Agreement, at reasonable times and upon reasonable advance
notice to Seller (recognizing such books and records may be in storage).
The Purchaser Parties shall keep all information obtained pursuant to this
Section in confidence, except to the extent required to defend or prosecute
any litigation arising out of or related to the collections and remittances
required pursuant hereto or for purposes of disclosure to investors or
lenders (both existing and prospective) or otherwise required by law.
28
(c) Reserved Claims. Notwithstanding any other provisions of this
---------------
Agreement, Seller hereby reserves and retains, exclusively for itself, the
Reserved Claims, and all rights, title and interests therein and benefits
thereof, at law and/or in equity, and nothing herein shall be deemed to
limit or impair in any respect Seller's rights and entitlement to
independently enforce any of the Reserved Claims by such means as Seller
deems necessary or appropriate, which may include the commencement of legal
proceedings, subject to the limitations contained in Section 3.3(d).
--------------
Purchaser is not entitled to, and Purchaser agrees that it shall not,
waive, discharge or modify any of the rights, title, interests, benefits
and other provisions of the Reserved Claims, or attempt to do any of the
foregoing.
(d) Remittance of Funds. Following Closing, each of Seller and
-------------------
Purchaser agrees to promptly remit any amounts collected or received by it
to which the other may be entitled under the terms of Sections 3.3 and
----------------
3.4(c), whether or not such amounts consist of Uncollected Rents (including
------
accounts receivable) or Reserved Claims.
(e) New Seventh Floor Rent Credit. Within ten (10) business days
-----------------------------
after the date on which The Apollo Group, Inc. is obligated to commence the
payment of rent ("Apollo Commencement Date"), under the New Seventh Floor
Lease, Purchaser shall provide Seller with written notice ("Rent Credit
Notice") of the Actual New Seventh Floor Rent Credit. If the Estimated New
Seventh Floor Rent Credit is less than the Actual New Seventh Floor Rent
Credit, then Seller shall pay such difference to Purchaser within three (3)
business days after Seller's receipt of the Rent Credit Notice. If the
Actual New Seventh Floor Rent Credit is less than the Estimated New Seventh
Floor Rent Credit, then Purchaser shall pay such difference to Seller
within three (3) business days after the date of the Rent Credit Notice.
Purchaser hereby agrees not to modify the New Seventh Floor Lease in any
manner which would delay the Apollo Commencement Date and if the New
Seventh Floor Lease is so modified then the Purchaser and Seller agree that
the proration hereunder shall be determined by reference to the date on
which The Apollo Group, Inc. would have become obligated to commence the
payment of rent under the New Seventh Floor Lease but for such
modification.
Section 3.5 Application of ▇▇▇▇▇▇▇ Money. The ▇▇▇▇▇▇▇ Money shall be held
----------------------------
and disbursed and/or credited against the Purchase Price in accordance with the
terms of the ▇▇▇▇▇▇▇ Money Trust Agreement and the provisions of this Agreement,
including the provisions of this Agreement. Seller, Purchaser and Escrow Agent
shall execute the ▇▇▇▇▇▇▇ Money Trust Agreement contemporaneously with the
execution of this Agreement and Purchaser's deposit of the ▇▇▇▇▇▇▇ Money with
Escrow Agent.
ARTICLE IV
----------
CLOSING; CONVEYANCING DOCUMENTS
-------------------------------
Section 4.1 Closing Escrow. On or prior to the Closing Date, all
--------------
Conveyancing Documents and funds required for Closing, including the Purchase
Price, shall be placed in escrow pursuant to the terms of the Escrow Agreement.
Closing shall not be deemed to have occurred and the Conveyancing Documents
placed in escrow shall not be deemed effective
29
unless and until: (a) each and all of the Seller's Conditions Precedent and
Purchaser's Conditions Precedent have been fully and completely satisfied or
waived, strictly in accordance with the terms hereof; and (b) the Conveyancing
Documents have been delivered out of escrow and the funds disbursed, including
payment of the Purchase Price to Seller, by Escrow Agent in accordance with the
terms of the Escrow Agreement. Closing shall occur on or prior to the Closing
Date at the offices of ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇, ▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ or such other place as may be mutually agreed to
by the parties. The risk of loss of the Property shall be borne by the Seller
until the release of the Conveyancing Documents from escrow at Closing, except
as otherwise specifically set forth in this Agreement.
Section 4.2 Conveyancing Documents. On or prior to the Closing Date, the
----------------------
following documents necessary for Closing (collectively, the "Conveyancing
Documents") shall be executed and/or delivered to Escrow Agent or as otherwise
hereinafter provided by the applicable parties designated in Sections 4.2(a)
---------------
through (p) below, to be held in escrow pursuant to the terms of the Escrow
-----------
Agreement. All Conveyancing Documents shall be substantially in the forms of the
Exhibits referenced hereinafter.
(a) Deed. Special Warranty Deed, in the form attached as Exhibit F
---- ---------
(the "Deed"), shall be properly executed and delivered into escrow by
Seller, in recordable form, for purposes of conveying the Property (other
than the Leases, Contracts and Personal Property) to Purchaser as
contemplated hereunder.
(b) ▇▇▇▇ of Sale and Assignment. Quit Claim ▇▇▇▇ of Sale and
---------------------------
Assignment, in the form attached as Exhibit G, shall be properly executed
---------
and delivered into escrow by Seller for purposes of conveying the Personal
Property to Purchaser as contemplated hereunder.
(c) Assignment of Leases. Assignment of Leases, in the form
--------------------
attached as Exhibit H, shall be properly executed and delivered into escrow
---------
by Seller, as assignor, and by Purchaser, as assignee, for purposes of the
assignment to and assumption by Purchaser of the Leases (including security
deposits) as contemplated hereunder.
(d) Assignment of Contract Rights. Assignment of Contract Rights,
-----------------------------
in the form attached as Exhibit I, shall be properly executed and delivered
---------
into escrow by Seller, as assignor, and by Purchaser, as assignee, for
purposes of the assignment to and assumption by Purchaser of the Contracts
as contemplated hereunder.
(e) Settlement Statement. The Settlement Statement (a draft of
--------------------
which shall be prepared and circulated by Seller or the Title Company at
least two (2) business days prior to Closing) shall be properly executed
and delivered into escrow by Seller and Purchaser, setting forth the
Purchase Price, all prorations and other adjustments to be made pursuant to
the terms hereof, and the funds required for Closing as contemplated
hereunder.
(f) Tenant Notices. A Tenant Notice, in the form attached as
--------------
Exhibit K, shall be properly executed and delivered into escrow by Seller
---------
and Purchaser for purposes of
30
notifying all Tenants of the assignment to and assumption by Purchaser of
the Leases as contemplated hereunder.
(g) FIRPTA Affidavit. A FIRPTA Affidavit, in the form attached as
----------------
Exhibit L, shall be properly executed and delivered into escrow by Seller.
---------
(h) Contractor Notices. A Contractor Notice, in the form attached as
------------------
Exhibit M, shall be properly executed and delivered into escrow by Seller
---------
and Purchaser for purposes of notifying all parties under the Contracts of
the assignment to and assumption by Purchaser of the Contracts as
contemplated hereunder.
(i) Association Documentation. The resignation (effective as of the
-------------------------
Closing Date) of each officer, director, member and manager, as
appropriate, of the Association and an Assignment of Declarant's rights
under the Declaration.
(j) Transfer Declarations. All transfer tax statements, declarations
---------------------
and filings as may be necessary or appropriate for purposes of recordation
of the deed shall be properly executed and delivered into escrow by Seller
and/or Purchaser, as applicable.
(k) Title Affidavit and Other Title Company Requirements. An owner's
----------------------------------------------------
affidavit, a "gap undertaking" and such evidence as Purchaser's counsel
and/or the Title Company may reasonably require as to the authority of the
person or persons executing documents on behalf of Seller shall be
delivered into escrow by Seller, along with such lien waivers, if any,
properly executed by brokers, leasing agents, contractors or other third
parties claiming by, through or under Seller as may be required by the
Title Company to issue the Title Policy without exception for liens or
claims of lien by any third party claiming by, through or under Seller
(excluding any lien or claim of lien resulting from the acts or omissions
of Purchaser Parties) and subject to the rights of Tenants, as tenants
only, under the Leases assigned to and assumed by Purchaser.
(l) Tenant Letter of Credit. That certain $100,000 letter of credit
-----------------------
deposited by Global Knowledge Network, Inc. with Seller, as the beneficiary
thereunder, shall be delivered by Seller, together with the Assignment of
Letter of Credit in the form attached hereto as Exhibit Y executed by
---------
Seller and Purchaser.
(m) Illinois Income Tax. At Seller's option, either (i) a certificate
-------------------
from the Illinois Department of Revenue certifying the amounts, if any,
which may be payable by Seller to the Illinois Department of Revenue
pursuant to the provisions of Section 902(d) of the Illinois Income Tax Act
or (ii) an indemnity agreement by Seller, FRC Windy Point and Travelers
Windy Point in the form attached hereto as Exhibit Z ("Bulk Sales
---------
Indemnity") pursuant to which Seller, FRC Windy Point and Travelers Windy
Point jointly and severally agree to indemnify Purchaser for any
obligations of Seller under Section 902(d) of the Illinois Income Tax Act
in connection with this Property, provided if Seller delivers the Bulk Sale
Indemnity to Purchaser at Closing, Purchaser shall not be entitled to
withhold any portion of the sale proceeds without Seller's prior written
consent, which consent may be withheld by Seller in its sole and absolute
discretion. Seller shall use good faith efforts to obtain the certificate
referred to in (i) above prior to
31
the Due Diligence Termination Date and shall provide Purchaser with a copy
thereof upon receipt thereof.
(n) Certificates as to Representations and Warranties. A
-------------------------------------------------
certificate evidencing the reaffirmation of the truth and accuracy in all
material respects of all representations and warranties made in this
Agreement by Seller or Purchaser (as the case may be) in the respective
forms attached hereto as Exhibit V-1 and Exhibit V-2, shall be properly
----------- -----------
executed and delivered by Seller and Purchaser into escrow, with such
modifications thereof as may be appropriate in light of any change in
circumstance since the Effective Date.
(o) Surety Bond. A surety bond (the "Parking Bond") in the amount
-----------
of $382,556 for the benefit of the Village of Schaumburg to secure
Purchaser's obligations, as the owner of the Property, with respect to
replacing any parking affected by the IDOT Easement as described on Exhibit
-------
J-1 attached hereto, or evidence reasonably satisfactory to Seller that
---
Purchaser has satisfied the requirements of the Village of Schaumburg with
respect to the Parking Bond such that Seller may obtain the release of its
surety bond posted in connection with the parking areas affected by the
IDOT Easement.
(p) Miscellaneous. Such other documents and instruments as the
-------------
parties may agree in writing and any other document or instruments that the
Escrow Agent may reasonably require shall be executed and/or delivered into
escrow.
Immediately following Closing, Seller shall deliver exclusive possession of the
Property (subject only to the right of Tenants under the Leases and the
Permitted Exceptions) and all keys to the Property (to the extent in the
possession of Seller or Property Manager) to Purchaser. Originals or, if
originals are not available, copies, of all Leases and Contracts, together with
all of the leasing and Property operating files and records (excluding any
Confidential Information) and other additional documents, if any, mutually
agreed to by Seller and Purchaser, to the extent in Seller's possession or under
its control, shall be held at the Property and delivered with possession of the
Property. Promptly following Closing, Purchaser shall be responsible for
delivering all Tenant Notices to Tenants and shall within five (5) business days
after Closing deliver copies thereof to Seller. Promptly following Closing,
Seller shall deliver all Contractor Notices to parties to the Contracts and
copies of terminations of the Other Contracts to the extent such terminations
are accomplished by Seller by written notice to the parties thereto and Seller
shall within five (5) business days after Closing deliver copies thereof to
Purchaser.
ARTICLE V
---------
REPRESENTATIONS AND WARRANTIES
------------------------------
Section 5.1 Representations and Warranties by Purchaser. Purchaser hereby
-------------------------------------------
makes the following representations and warranties for the benefit of Seller as
of the date hereof and the Closing Date, each of which representations and
warranties shall survive Closing for the Survival Period:
32
(a) Partnership/Corporate Status. Purchaser is a corporation duly
----------------------------
organized and validly existing under the laws of the State of Georgia and
is or at Closing will be in good standing and duly qualified to do business
in the States of Illinois.
(b) Power and Authority. Purchaser has full power and authority to
-------------------
enter into and perform this Agreement, the documents and certificates to be
executed and delivered by Purchaser pursuant hereto, and each and all of
the transactions contemplated hereby and thereby in accordance with the
terms hereof and thereof. Purchaser has by all necessary action, validly
authorized the execution, delivery and performance of this Agreement, the
documents and certificates to be executed and delivered by Purchaser in
connection herewith, and the transactions contemplated hereby and thereby
in accordance with the terms hereof and thereof, and the performance and
assumption by Purchaser of each and all of Purchaser's covenants,
obligations, liabilities and duties under and with respect to the Leases
and Contracts pursuant hereto in accordance with the respective terms
thereof. The individual(s) executing this Agreement, and each of the other
documents and certificates to be executed and delivered in connection
herewith, on behalf of Purchaser ("Authorized Signatories") is(are)
competent, duly appointed and authorized officer(s) and/or agents of, with
full legal capacity, power and authority, acting alone, to act on behalf of
and bind Purchaser in all respects.
(c) Agreement Binding. This Agreement and each of the documents and
-----------------
certificates executed or to be executed and delivered by Purchaser, and/or
the Authorized Signatories in connection herewith are, or will be when
executed and delivered, the legal, valid and binding obligations of and
enforceable against Purchaser in accordance with the terms hereof and
thereof.
(d) Actions Against Purchaser. Purchaser has no actual knowledge of
-------------------------
any action, proceeding, investigation or Insolvency Proceeding pending or
threatened in writing against Purchaser or any of the other Purchaser
Parties before any Governmental Authority which would affect or impair in
any respect Purchaser's ability to consummate the transactions contemplated
hereby.
(e) No Conflicting Orders. The execution, delivery and performance by
---------------------
Purchaser of this Agreement and each of the documents and certificates to
be executed and delivered by Purchaser pursuant hereto do not violate any
of the terms, conditions or provisions of any judgment, order, injunction
or decree of any Governmental Authority to which Purchaser is subject. No
consent, waiver or approval of any Person, which has not already been
obtained, is required in connection with the execution, delivery and
performance by Purchaser of this Agreement and each of the documents and
instruments to be executed and delivered by Purchaser pursuant hereto,
except as may be set forth in the Contracts or Leases.
(f) Solvency; No Fraudulent Conveyance. Purchaser is not Insolvent and
----------------------------------
will not become Insolvent as a result of entering into and consummating
this Agreement and the purchase of the Property, including the Leases and
Contracts, and the Obligations in accordance with the terms hereof, nor are
the transfers to be made hereunder or obligations incurred in connection
herewith made or incurred by Purchaser with any
33
intent to hinder, delay or defraud any creditors to which Purchaser is or
becomes indebted. Purchaser is not engaged in business or any transactions,
including the transactions contemplated hereunder, or about to engage in
any business or transactions, for which any remaining property of Purchaser
is unreasonably small capital, nor does Purchaser intend to incur or
believe that it will incur, debts that would be beyond its ability to pay
as such debts matured. Purchaser acknowledges that it is receiving new,
fair, reasonably equivalent value in exchange for the transfers and
obligations contemplated by this Agreement, and affirmatively represents
that its entry into this Agreement and consummation of the transactions
contemplated hereby does not constitute a fraudulent conveyance or
preferential transfer under the Bankruptcy Code or any other federal, state
or local laws affecting the rights of creditors generally.
Purchaser's representations and warranties in this Section 5.1 and Section
----------- -------
7.22 below are expressly limited to and shall automatically be deemed to expire
----
and terminate on the date which is 270 days from the Closing Date ("Survival
Period"), except for claims for which Seller has given written notice as set
forth below prior to the expiration of the Survival Period, whereupon Seller
shall have the rights and remedies set forth in Article VI. Notwithstanding the
----------
foregoing, no rights or remedies shall be deemed to accrue on account of a
breach of any such representations or warranties unless and until: (1) Seller
shall have given Purchaser written notice specifying in reasonable detail any
alleged breach prior to the expiration of the Survival Period; and (2) Purchaser
shall have failed to cure (which may include bonding over a defect in a manner
reasonably agreed to by Seller) any breach within thirty (30) days, or such
longer period of time as is reasonable under the circumstances if such breach is
susceptible to cure, not to exceed one hundred and twenty (120) days after
receipt of notice from Seller, provided Purchaser is continuously and diligently
pursuing a cure of such breach. Notwithstanding anything in clause (2) to the
contrary, Purchaser shall not be entitled to the cure period provided in clause
(2) unless Purchaser provides Seller with notice of its intention to cure
("Purchaser's Cure Notice") within five (5) business days after receipt of
Seller's notice referred to in clause (1).
Section 5.2 Representations and Warranties by Seller. Seller hereby makes
----------------------------------------
the representations and warranties in Sections 5.2(a) through (m) for the
---------------------------
benefit of Purchaser as of the date hereof and the Closing Date. The Seller
representations and warranties in this Section 5.2 shall survive Closing for the
Survival Period:
(a) Corporate Status. Seller is a limited liability company, duly
----------------
organized and validly existing under the laws of the State of Delaware and
is in good standing and licensed to do business under the laws of the State
of Delaware and Illinois.
(b) Power and Authority. Seller has full power and authority to
-------------------
enter into and perform this Agreement, the documents and certificates to be
executed and delivered by Seller pursuant hereto, and each and all of the
transactions contemplated hereby and thereby in accordance with the terms
hereof and thereof. Seller has, by all necessary action, validly authorized
the execution, delivery and performance of this Agreement, the documents
and certificates to be executed and delivered by Seller in connection
herewith, and the transactions contemplated hereby and thereby in
accordance with the terms hereof and thereof, and the performance and
assignment by Seller of each and all of
34
Seller's covenants, obligations, liabilities and duties under and with
respect to the Leases and Contracts pursuant hereto in accordance with the
respective terms thereof. The individual(s) executing this Agreement, and
each of the other documents and certificates to be executed and delivered
in connection herewith, on behalf of Seller is(are) competent, duly
appointed and authorized officer(s) of Seller, with full legal capacity,
power and authority, acting alone, to act on behalf of and bind Seller in
all respects.
(c) Agreement Binding. This Agreement and each of the documents and
-----------------
certificates executed or to be executed and delivered by Seller in
connection herewith are, or will be when executed and delivered, the legal,
valid and binding obligations of and enforceable against Seller in
accordance with the terms hereof and thereof.
(d) Actions Against Seller. To Seller's knowledge, there is no action,
----------------------
proceeding, investigation or Insolvency Proceeding pending or threatened in
writing against Seller or any of the other Seller Parties before any
Governmental Authority relating to the Property or which would affect or
impair in any respect Seller's ability to consummate the transactions
contemplated hereby.
(e) Seller not a "Foreign Person." Seller is not a "foreign person"
----------------------------
within the meaning of Section 1445 of the Internal Revenue Code, as
amended, and the regulations promulgated thereunder, or Seller shall
otherwise comply with the provisions thereof.
(f) Solvency; No Fraudulent Conveyance. Seller is not Insolvent and
----------------------------------
will not become Insolvent as a result of entering into and consummating
this Agreement and the sale of the Property, including the Leases and
Contracts, and the Obligations in accordance with the terms hereof, nor are
the transfers to be made hereunder or obligations incurred in connection
herewith made or incurred by Seller with any intent to hinder, delay or
defraud any creditors to which Seller is or becomes indebted. Seller is not
engaged in business or any transactions, including the transactions
contemplated hereunder, or about to engage in any business or transactions,
for which any remaining property of Seller is unreasonably small capital,
nor does Seller intend to incur or believe that it will incur, debts that
would be beyond its ability to pay as such debts matured. Seller
acknowledges that it is receiving new, fair, reasonably equivalent value in
exchange for the transfers and obligations contemplated by this Agreement,
and affirmatively represents that its entry into this Agreement and
consummation of the transactions contemplated hereby does not constitute a
fraudulent conveyance or preferential transfer as to Seller under the
Bankruptcy Code or any other federal, state or local laws affecting the
rights of creditors generally.
(g) No Conflicting Orders. The execution, delivery and performance by
---------------------
Seller of this Agreement and each of the documents and certificates to be
executed and delivered by Seller pursuant hereto do not violate any of the
terms, conditions or provisions of any judgment, order, injunction or
decree of any Governmental Authority to which Seller is subject. No
consent, waiver or approval of any Person, which has not already been
obtained, is required in connection with the execution, delivery and
35
performance by Seller of this Agreement and each of the documents and
instruments to be executed and delivered by Seller pursuant hereto.
(h) Leases. To Seller's knowledge, Exhibit E attached hereto is a true and
------ ---------
complete list of all Leases in effect as of the date thereof. To Seller's
knowledge, true and complete copies of the Leases (to the extent theretofore
executed) have been or will be delivered to Purchaser prior to the Due Diligence
Termination Date as set forth herein, or if executed after the Due Diligence
Termination Date, then at least three (3) business days prior to the Closing
Date. To Seller's knowledge, Exhibit Q attached hereto is a list of all security
---------
deposits (cash and non-cash) held by Seller for the Leases in effect as of the
date thereof. Except as set forth on Exhibit E, there are no other Leases or
---------
occupancy agreements affecting the Property, and to Seller's knowledge, except
as may be set forth on Exhibit E-1, neither Seller nor any Tenant is in default
-----------
under any of the Leases. To Seller's knowledge, all Lease-Up Costs as of the
Effective Date are listed on Exhibit X attached hereto. To Seller's knowledge,
---------
all commission agreements relating to Commissions due under any Leases in effect
as of the Effective Date are listed on Exhibit R attached hereto, and all
---------
Commissions payable thereunder prior to the Closing have been paid in full
(except as disclosed on Exhibit X).
---------
(i) Governmental Notices. Except as disclosed by the Litigation Schedule
--------------------
attached as Exhibit O ("Litigation Schedule"), to Seller's knowledge, Seller has
---------
not received, as of the date hereof, any written notices from any Governmental
Authority of any existing or pending investigation or inquiry by any
Governmental Authority or any remedial actions by any Governmental Authority
under, or any violations of any applicable law, statute, ordinance, rule,
regulation, order, determination of any Governmental Authority or judicial
court, or any restrictive covenant, deed restriction or zoning or building
ordinance or classification affecting the Property pertaining to health, public
safety, or the environment ("Environmental Laws"), which have not been complied
with in all material respects. Except as disclosed on the Litigation Schedule
and on Exhibit J attached hereto, to Seller's knowledge, Seller has not received
---------
any written notice of any existing, pending or threatened litigation (including,
without limitation, any condemnation or notice of condemnation) affecting or
related to the Property or any of the Leases. Notwithstanding the foregoing,
Purchaser acknowledges that the Illinois Department of Transportation has the
rights described on Exhibit J-1 attached hereto.
-----------
(j) Assignment of Leases. As of Closing, none of the landlord's interest in
--------------------
the Leases and none of the rents or other amounts payable thereunder to landlord
will be subject to any assignment (other than the Assignment of Leases to be
delivered by Seller at Closing), pledge, or other encumbrance created by Seller.
(k) Contracts. To Seller's knowledge, attached hereto as Exhibit P is a
--------- ---------
true and complete list of all Contracts entered into by or on behalf of Seller
with respect to the Property (including all Contracts relating to the payment of
Lease-Up Costs and all Contracts for the provision of services, materials or
supplies to the Property). To Seller's knowledge, true and complete copies of
all of the Contracts (to the extent theretofore executed) have been or will be
delivered to Purchaser or otherwise made available for
36
Purchaser's review as part of the Evaluation Materials. To Seller's
knowledge, there are no agreements or instruments in effect that grant to
any person or any entity any right, title, interest or benefit in or to any
part of the Property or any rights relating to use, management, leasing,
operation or repair of the Property which survive Closing or will be
binding on Purchaser after Closing other than the Leases, the Permitted
Exceptions and the Contracts disclosed on said Exhibit P.
---------
(l) Employees. Seller has no employees to whom by virtue of such
---------
employment Purchaser will have an obligation after Closing.
(m) Environmental. To Seller's knowledge, Seller has not received
-------------
any written notice from any Person of any uncured violation at the Property
of any applicable Environmental Laws.
References to the "knowledge" of Seller shall refer only to the current actual
knowledge of ▇▇▇▇▇▇▇ ▇▇▇▇, an employee of ▇▇▇▇▇▇▇ Companies (the "Designated
Employee"), and shall not be construed, by imputation or otherwise, to refer to
the knowledge of Seller or any affiliate of Seller, to any property manager, or
to any other officer, agent, manager, representative or employee of Seller or
any affiliate thereof or to impose upon such Designated Employee any duty to
investigate the matter to which such actual knowledge, or the absence thereof,
pertains. Moreover, qualifying Seller's knowledge shall in no event give rise to
any personal liability on the part of Designated Employee on account of any
breach of any representation or warranty made by Seller herein.
If and to the extent a representation and warranty set forth in Section 5.2 (or
-----------
portion thereof) survives Closing, such representation or warranty (or portion
thereof) is expressly limited to and shall automatically be deemed to expire and
terminate upon the expiration of the Survival Period, except for claims for
which Purchaser has given written notice as set forth below prior to the
expiration of the Survival Period, whereupon Purchaser shall have the rights and
remedies set forth in Article VI. Notwithstanding the foregoing, no rights or
----------
remedies shall be deemed to accrue on account of a breach of any such
representations or warranties unless and until: (1) Purchaser shall have given
Seller written notice specifying in reasonable detail any alleged breach prior
to the expiration of the Survival Period; and (2) Seller shall have failed to
cure (which may include bonding over a defect in a manner reasonably agreed to
by Purchaser) any breach within thirty (30) days, or such longer period of time
as is reasonable under the circumstances if such breach is susceptible to cure,
not to exceed one hundred and twenty (120) days after receipt of notice from
Purchaser, provided Seller is continuously and diligently pursuing a cure of
such breach. Notwithstanding anything in clause (2) to the contrary, Seller
shall not be entitled to the cure period provided in clause (2) unless Seller
provides Purchaser with notice of its intention to cure ("Seller's Cure Notice")
within five (5) business days after receipt of Purchaser's notice referred to in
clause (1).
Section 5.3 Special Seller Representation and Warranty Regarding Bulk
---------------------------------------------------------
Sales. Seller hereby represents and warrants to Purchaser that Seller has paid
-----
and will continue to pay to the State of Illinois Department of Revenue any
taxes due from Seller pursuant to Section 902(d) of the Illinois Income Tax Act
(35 ILCS 5/902(d)). Seller's representation and warranty set forth in this
Section 5.3 shall survive for three (3) years after the Closing (and shall
37
thereafter terminate if no suit has been brought by Purchaser within said three
(3) year period) and Seller's obligations under this Section 5.3 shall not be
subject to the limitations on liability contained in Section 6.3 or Section 7.12
herein. FRC Windy Point and Travelers Windy Point hereby acknowledge that,
notwithstanding the terms and conditions of Section 7.12 herein, they shall be
jointly and severally liable with Seller to Purchaser in the event Seller
breaches the representation and warranty contained in this Section 5.3 and FRC
Windy Point and Travelers Windy Point have agreed to join in the execution of
this Agreement for the purpose of evidencing such obligation. If Seller at any
time delivers a clearance letter from the Illinois Department of Revenue
evidencing that there are no taxes due from Seller pursuant to Section 902(d) of
the Illinois Income Tax, then all of the obligations and liabilities of Seller,
FRC Windy Point and Travelers Windy Point under this Section 5.3 shall terminate
and be of no further force or effect.
ARTICLE VI
----------
DEFAULT REMEDIES
----------------
Section 6.1 By Purchaser. If prior to Closing, Purchaser breaches in any
------------
material respect any of its covenants, obligations, liabilities or duties
hereunder without such breach being cured within applicable notice and cure
periods, or in any documents or certificates executed and delivered by any of
the Purchaser Parties in connection herewith, or if any of Purchaser's
representations and warranties prove to be false in any material respect as of
the date deemed to be made, then Seller shall be entitled to elect one of the
following options: (a) terminate its obligation to sell and Purchaser's
obligation to purchase the Property and not proceed with Closing, whereupon
Seller shall be entitled to prompt receipt of the ▇▇▇▇▇▇▇ Money from Escrow
Agent pursuant to the ▇▇▇▇▇▇▇ Money Trust Agreement and/or Purchaser, as
applicable, and retain the ▇▇▇▇▇▇▇ Money as its sole and exclusive remedy and as
liquidated damages for Purchaser's breach of this Agreement, any and all other
claims for losses, damages, costs and expenses being deemed waived hereby,
provided however, the recovery of reasonable attorneys' fees (whether incurred
in connection with nonjudicial action, prior to trial or at trial, including any
proceedings under the Bankruptcy Code, excluding, however, any attorneys' fees
incurred on appeal) and expenses as hereinafter provided and any indemnification
obligations set forth in this Agreement shall not be limited hereby; or (b) in
the event Closing occurs, exercise the rights and remedies set forth in Section
-------
6.3. Further, in the event Seller elects not to proceed to Closing and receives
---
and retains the ▇▇▇▇▇▇▇ Money as provided herein, and because the actual damages
suffered by Seller as a result of such breach by Purchaser would be
impracticable or extremely difficult or impossible to determine, Purchaser and
Seller agree that the amount of the ▇▇▇▇▇▇▇ Money shall be the amount of damages
to which Seller is entitled in such event and that the amount of such liquidated
damages is reasonable and does not constitute a penalty. Upon full receipt of
the ▇▇▇▇▇▇▇ Money by Seller pursuant to (a) above, this Agreement, including the
purchase and sale obligations of Purchaser and Seller hereunder, shall be deemed
automatically terminated, and the parties shall have no further rights,
obligations or liabilities hereunder, provided however, the recovery of
reasonable attorneys' fees (whether incurred in connection with nonjudicial
action, prior to trial or at trial, including any proceedings under the
Bankruptcy Code, excluding, however, any attorneys' fees incurred on appeal) and
expenses as hereinafter provided and any indemnification obligations set forth
in this Agreement shall not be limited hereby. If Purchaser hinders, delays,
contests or interferes with Seller's receipt or retention of
38
the ▇▇▇▇▇▇▇ Money (or attempts to do any of the foregoing), then in any action
brought thereon, the prevailing party shall be entitled to recover reasonable
attorney's fees and expenses (whether incurred in connection with nonjudicial
action, prior to trial, at trial or on appeal or review, including any
proceedings under the Bankruptcy Code). If Seller is the prevailing party, such
amounts shall be in addition to retention of the ▇▇▇▇▇▇▇ Money, and if Purchaser
is the prevailing party, such amounts shall be in addition to the return of the
▇▇▇▇▇▇▇ Money by Seller.
Section 6.2 By Seller. If prior to Closing, Seller breaches in any material
--------
respect any of its covenants, obligations, liabilities or duties hereunder
without such breach being cured within applicable notice and cure periods, or in
any documents or certificates executed and delivered by any of the Seller
Parties, or if any of Seller's representations and warranties prove to be false
in any material respect as of the date deemed to be made (collectively, a
"Seller Default"), Purchaser shall be entitled to elect one of the following
options: (a) terminate its obligations to purchase and Seller's obligations to
sell the Property and not proceed with Closing, whereupon Purchaser shall be
entitled to a prompt return of the ▇▇▇▇▇▇▇ Money from Escrow Agent (to the
extent actually paid by Purchaser) pursuant to the ▇▇▇▇▇▇▇ Money Trust Agreement
as its sole and exclusive remedy (except as may be expressly set forth herein,
including, without limitation, the last sentence of this Section 6.2), any and
-----------
all other claims for losses, damages, costs and expenses being deemed waived
hereby; provided however, the recovery of reasonable attorneys' fees (whether
incurred in connection with nonjudicial action, prior to trial or at trial,
including any proceedings under the Bankruptcy Code, excluding, however, any
attorneys' fees incurred on appeal) and expenses as hereinafter provided and any
indemnification obligations set forth in this Agreement shall not be limited
hereby; (b) seek specific performance of Seller's obligation to sell the
Property, and if the Purchaser prevails in obtaining such specific performance,
Purchaser shall be entitled to recover its reasonable legal fees and costs
actually incurred in obtaining the decree for specific performance (at trial but
not on appeal) and otherwise Seller shall be entitled to recover its reasonable
legal fees and costs in connection therewith; or (c) proceed with Closing and in
the event Closing occurs, exercise the rights and remedies set forth in Section
-------
6.3; provided, however, that Section 6.3 shall not apply to, and Seller shall
--- -----------
have no liability (other than as provided in clauses (a) and (b) above and the
last sentence of this Section 6.2) for any breach of Seller's representations
-----------
and warranties which are known to Purchaser prior to Closing. Notwithstanding
the foregoing, if there is a Seller Default and as a result thereof, Purchaser
elects to seek specific performance and Purchaser is unable to obtain a judgment
for specific performance of Seller's obligation to sell the Property, Purchaser
shall thereafter be entitled to the remedy set forth in clause (a) above. If
Seller hinders, delays, contests or interferes with Purchaser's receipt or
retention of the ▇▇▇▇▇▇▇ Money pursuant to (a) above (or attempts to do any of
the foregoing), then in any action brought thereon, the prevailing party shall
be entitled to recover reasonable attorney's fees and expenses (whether incurred
in connection with nonjudicial action, prior to trial, at trial or on appeal or
review, including any proceedings under the Bankruptcy Code. The prevailing
party in any such action for damages, or in the event Purchaser must pursue an
action to recover the ▇▇▇▇▇▇▇ Money, shall be entitled to recover reasonable
attorney's fees and expenses (whether incurred in connection with nonjudicial
action, prior to trial, at trial or on appeal or review, including any
proceedings under the Bankruptcy Code). Notwithstanding anything contained
herein to the contrary, if this Agreement is terminated pursuant to clause (a)
above due to an intentional breach by Seller in any material respect of any of
its covenants hereunder or if Seller knowingly and intentionally caused one of
Seller's representations and warranties to be false in any material
39
respect, or if Seller's intentional action makes it impossible to enforce
specific performance, then Seller shall reimburse Purchaser for the actual,
out-of-pocket third party costs (not to exceed $100,000) incurred by Purchaser
in connection with this transaction which are directly related to Purchaser's
due diligence regarding the condition of the Property and Purchaser's reasonable
attorneys' fees in connection with the negotiation of this Agreement (but
excluding any loan commitment or related fees paid by Purchaser), to the extent
such costs are evidenced to Seller's reasonable satisfaction.
Section 6.3 Post-Closing Defaults. If, following Closing, any party hereto
---------------------
breaches any of its covenants, obligations, liabilities, indemnities or duties
hereunder (other than the obligations of Purchaser and Seller contained in
Section 3.3, the obligations of Seller pursuant to the Bulk Sale Indemnity and
the obligations of Seller contained in Section 5.3), or in any documents or
certificates executed and delivered by it, or if any of its representations and
warranties which survive Closing prove to be false in any material respect as of
the date deemed to be made (subject to the limitations in Section 6.2 above),
-----------
the other party shall be entitled to recover from such defaulting party any and
all damages (excluding any special, consequential and/or lost profit damages and
subject to the limitations set forth in Sections 5.2, 6.1 and 6.2), costs and
-------------------------
expenses, including reasonable attorneys' fees (whether incurred in connection
with nonjudicial action, prior to trial or at trial, including any proceedings
under the Bankruptcy Code, excluding, however, any attorneys' fees incurred on
appeal) and expenses suffered or incurred by such other party as a result of
such breach subject to the conditions contained herein. Notwithstanding the
foregoing, neither party shall have liability to the other party for a breach of
any of its covenants, obligations, liabilities, indemnities or duties hereunder,
or in any documents or certificates executed and delivered by it, or if any of
its representation or warranties which survive Closing are false in any material
respect as of the date deemed to be made (a) unless the valid claims for all
such breaches collectively aggregate more than Fifty Thousand and No/100 Dollars
($50,000.00) in which event the full amount of such valid claims shall be
actionable up to, but not in excess of, Seven Hundred Fifty Thousand and No/100
Dollars ($750,000.00), and (b) unless written notice containing a description of
the specific nature of such breach shall have been given by the claiming party
to the other party prior to the expiration of the Survival Period and an action
shall have been commenced by the claiming party against the other party within
sixty (60) days after (a) the Survival Period or (b) if Seller has delivered to
Purchaser Seller's Cure Notice, or if Purchaser has delivered to Seller
Purchaser's Cure Notice, the expiration of the cure period as provided in
Section 5.1 and Section 5.2 hereof,.
Section 6.4 General Provisions. All rights and remedies in favor of the
------------------
parties in this Agreement are the sole and exclusive rights and remedies
available to the parties and exclusive of any other rights and remedies
available at law or in equity. The rights and remedies in favor of the parties
hereunder are cumulative and may be exercised successively or concurrently as
determined by such parties in their sole discretion, except as otherwise
provided herein to the contrary (including in Sections 5.2, 6.1 and 6.2). Except
-------------------------
as provided herein to the contrary, the exercise of any one right or remedy
shall not be a waiver of the right to exercise at the same time or thereafter
any other right or remedy and no delay in exercising or failing to exercise any
rights or remedies hereunder (subject to the limitations set forth herein) shall
constitute, or be deemed to constitute, a waiver of the right to exercise any
such rights or remedies at any time thereafter or a release, satisfaction or
discharge of the terms hereof, all such rights and remedies remaining
continuously in force. This Article VI, including without limitation, the
----------
liquidated damages
40
provisions and waivers set forth in Sections 6.1 and 6.2, shall not limit or
--------------------
impair in any way, and shall be in addition to, the rights and remedies any
party hereto may have by virtue of any specific indemnities granted herein
(including Sections 2.4, 2.7, 7.1, 7.11, and 7.17) or in any documents or
--------------------------------------
certificates executed and delivered by any of the parties to the other.
ARTICLE VII
-----------
MISCELLANEOUS
-------------
Section 7.1 Assignment. Purchaser hereby acknowledges Purchaser shall not
----------
have any right to assign this Agreement or any of its rights or obligations
hereunder (including any representations and warranties included herein) without
the prior written consent of Seller, which consent may be withheld, conditioned
or delayed in Seller's sole and absolute discretion, except as hereinafter
provided. Any assignment or attempted assignment by Purchaser of this Agreement
or Purchaser's rights and obligations hereunder, except in strict accordance
with the terms of this Section 7.1, shall constitute a breach by Purchaser under
-----------
this Agreement and shall entitle Seller to exercise any and all of its rights
and remedies hereunder. Seller will consent to a one time only assignment by
Purchaser of this Agreement and its rights and benefits hereunder, prior to
Closing, to any Person which is owned or controlled, directly or indirectly, by
Purchaser or any of its equity holders, subsidiaries or affiliates, and/or to
any Person which owns or controls, directly or indirectly, Purchaser or any of
its equity holders, subsidiaries or affiliates, any Person that may succeed to
the interests of Purchaser by merger, consolidation or other business
combination, or any Person who acquires all or substantially all of Purchaser's
assets or any of its equity holders, affiliates or subsidiaries or to ▇▇▇▇▇
Operating Partnership, L.P., a Delaware limited partnership, or to any
partnership having Purchaser or ▇▇▇▇▇ Operating Partnership, L.P. as a direct or
indirect general partner thereof, provided that as a condition precedent to the
effectiveness of and prior to any such assignment: (a) Purchaser shall give
Seller at least three (3) business days' prior written notice of its intent to
assign this Agreement; and (b) Purchaser and such assignee shall have executed
and delivered to Seller an amendment to this Agreement, in the form attached
hereto as Exhibit AA, wherein the assignee expressly assumes and agrees to pay
----------
and perform all of the Purchaser's covenants, representations, warranties,
obligations and liabilities hereunder (whether arising prior or subsequent to
such assignment) and under all documents and certificates executed and delivered
or to be executed and delivered by the Purchaser or such permitted assignee in
connection herewith, and Purchaser agrees to remain jointly and severally liable
with such assignee for the payment and performance of all of such covenants,
obligations, liabilities, representations and warranties. Any assignment or
other Transfer, or attempted or purported assignment or other Transfer, by
Purchaser of this Agreement, or any of its rights and benefits hereunder, shall
be NULL AND VOID, unless made with the prior written consent of Seller and
strictly in accordance with the terms hereof. Any such permitted assignee shall
be deemed the "Purchaser" for all purposes hereunder from and after the
assignment by Purchaser of this Agreement and its rights, benefits and
obligations in accordance with the terms hereof; provided, however, the original
named Purchaser herein shall remain jointly and severally liable after such
assignment with its permitted assignee for the performance of all covenants,
obligations, duties, liabilities, representations and warranties of Purchaser
under this Agreement and all documents and certificates executed and delivered
or to be executed and delivered by Purchaser or its permitted assignee in
connection herewith.
41
Section 7.2 Notices. All notices, demands, requests and other
-------
communications required hereunder shall be in writing and shall be deemed to
have been given and/or received: (a) upon delivery if personally delivered; (b)
three (3) days after deposit in the United States Mail when delivered, postage
pre-paid, by certified or registered mail; (c) the next business day after
deposit with a nationally recognized overnight delivery service marked for
delivery on the next business day; or (d) as of the date of facsimile
transmission provided that an original of such facsimile is also sent to the
intended addressee by means described in clauses (a), (b) or (c) above;
addressed to the party for whom it is intended at its address hereinafter set
forth:
(a) If to Seller, FRC Windy Windy Point of Schaumburg, LLC
Point, Travelers Windy c/o Fifield Companies
Point or ▇▇▇▇▇▇▇ Realty: ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Mr. ▇▇▇▇▇▇▇ ▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to: The Travelers Insurance Company
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to: (for overnight delivery):
The Travelers Insurance Company
c/o Citigroup Global Investments
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ - ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
(for regular U.S. mail delivery):
The Travelers Insurance Company
c/o Citigroup Global Investments
▇.▇. ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
With a copy to: ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Esq. and ▇▇▇▇▇ ▇▇▇, Esq.
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
42
(b) If to Purchaser: ▇▇▇▇▇ Capital, Inc.
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP
Bank of America Plaza, Suite 5200
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇.▇.
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq. and ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, Esq.
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇ (▇▇▇▇▇▇▇)
(▇▇▇) ▇▇▇-▇▇▇▇ (▇▇▇▇▇▇▇)
Any party may designate a change of address by written notice to the other,
given at least ten (10) days before such change of address is to become
effective.
Section 7.3 No Third Party Beneficiary. The provisions of this Agreement
--------------------------
are solely for the benefit of Purchaser and Seller, and their successors and
permitted assigns. No provision of this Agreement or of any of the documents and
certificates executed in connection herewith shall be construed as creating in
any Person other than Purchaser and Seller, and their successors and permitted
assigns, any rights of any nature whatsoever.
Section 7.4 Successors and Assigns. Subject to the provisions of Sections
---------------------- --------
7.1 and 7.3, all of the terms, covenants and conditions contained herein and in
-----------
the other documents and certificates executed in connection herewith shall apply
to and be binding upon, and inure to the benefit of, the successors and
permitted assigns of Purchaser and Seller, respectively.
Section 7.5 Severability. If any provision in this Agreement is found by a
------------
court of competent jurisdiction to be in violation of any applicable law, and if
such court should declare such provision of this Agreement to be unlawful, void,
illegal or unenforceable in any respect, the remainder of this Agreement shall
be severable, and the rights, obligations and interests of the parties hereto
under the remainder of this Agreement shall continue in full force and effect.
To the extent permitted by applicable law, the parties hereto waive any
provision of law which prohibits or renders void or unenforceable any provision
hereof. If the invalidity of any part or provision of this Agreement shall
deprive any party of the economic benefit intended to be conferred by this
Agreement, the parties shall negotiate, in good faith, to develop a structure,
the economic effect of which is nearly as possible the same as the economic
effect of this Agreement without regard to such invalidity.
Section 7.6 Modification. This Agreement and the terms hereof may not be
------------
changed, waived, modified, canceled, discharged or terminated orally, but only
by an instrument or instruments in writing signed by Purchaser and Seller.
43
Section 7.7 Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND
-------------
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF
ILLINOIS, EXCLUDING CONFLICTS OF LAW PRINCIPLES.
Section 7.8 Consent to Jurisdiction. Each of Purchaser and Seller hereby
-----------------------
consents to the exercise of personal jurisdiction over it by the federal court
in the Northern District of Illinois or any state circuit or district courts in
▇▇▇▇ County, and consents to the laying of venue in any such federal or state
courts.
Section 7.9 Headings. The Article headings and the Section and Subsection
---------
titles hereof are inserted for convenience of reference only, are not intended
to modify the terms hereof, and shall not be construed in any way to limit or
define the content, scope or intent of the provisions hereof.
Section 7.10 Entire Agreement. This Agreement and the Exhibits hereto, each
----------------
of which is incorporated herein by this reference, together with the documents
and certificates executed and delivered in connection herewith set forth the
entire agreement between Purchaser and Seller relating to the transactions
contemplated hereby, and all prior or contemporaneous agreements,
understandings, representations or statements, oral or written, are superseded
hereby and thereby.
Section 7.11 Broker. Purchaser hereby represents and warrants to Seller
------
that it has not engaged any finder, broker or other agent with respect to any of
the transactions described by this Agreement or otherwise relating to the
acquisition of all or any portion of the Property, other than Broker whose
commission shall be paid by Seller under a separate agreement between Seller and
Broker in accordance with the terms thereof, and none of the Purchaser Parties
shall assert any claims against any of the Seller Parties or the Property (or
any portion thereof) for any brokerage or sales commissions, finder's fees,
consultant's fees or any other similar fees or compensation of any kind or
nature whatsoever, irrespective of the termination of this Agreement and whether
or not Closing occurs hereunder. Seller hereby represents and warrants to
Purchaser that it has not engaged any finder, broker or other agents with
respect to any of the transactions described by this Agreement or otherwise
relating to the sale of all or any portion of the Property, other than Broker,
and none of the Seller Parties shall assert any claims against the Purchaser
Parties for any brokerage or sales commissions, finder's fees, consultant's fees
or any other similar fees or compensation of any kind or nature whatsoever,
irrespective of the termination of this Agreement and whether or not the Closing
occurs hereunder. Purchaser hereby covenants and agrees to indemnify, defend and
hold harmless the Seller, and Seller covenants and agrees to indemnify, defend
and hold harmless the Purchaser, from and against any and all liability, damage
(including special and consequential), loss, lien, expense, suit and claim
(including attorneys' fees and expenses at the trial level) caused by or arising
out of: (a) a breach of the aforesaid representations and warranties of the
indemnifying party; and/or (b) any claims for any brokerage or sales
commissions, finder's fees, consultant's fees or any other similar fees or
compensation of the indemnifying party or any person claiming to have dealt
with, on behalf of, through or under such indemnifying party.
44
Section 7.12 No Personal/Joint Liability. This Agreement and all documents,
---------------------------
agreements, understandings and arrangements relating hereto and to the
transactions contemplated hereby have been negotiated, executed and delivered on
behalf of Seller and Purchaser by their respective partners and/or officers in
their representative capacities and not individually, and bind only the assets
of Seller and Purchaser (including any assignee), respectively, and no officer,
director, employee, partner (including, without limitation, General Partner),
agent or shareholder of either the Seller Parties or Purchaser Parties shall be
bound or held to any personal liability or responsibility in connection with the
agreements, obligations and undertakings of Seller or Purchaser, as the case may
be, hereunder. Any Person dealing with Seller and/or Purchaser in connection
herewith shall look solely to the assets of Seller and Purchaser (including any
assignee), respectively, for the payment of any claim or for the performance of
any of its agreements, obligations or undertakings hereunder. Each party
acknowledges and agrees that each agreement and other document executed by the
other party in accordance with or in respect of this Agreement and the
transactions contemplated hereby shall be deemed and treated to include in all
respects and for all purposes the provisions of this Section 7.12.
------------
Notwithstanding the foregoing, the limitation on liability contained in this
Section 7.12 shall not apply with respect to Seller's obligations contained in
------------
Section 5.3 or the Bulk Sale Indemnity.
-----------
Section 7.13 Survival. All representations and warranties (subject to the
--------
limitations in Section 5.1, 5.2 and 5.3), covenants, obligations, indemnities
------------------------
and provisions of this Agreement shall survive the Closing of the transactions
contemplated hereby and/or termination of this Agreement.
Section 7.14 Waiver of Trial by Jury. SELLER AND PURCHASER HEREBY WAIVE
-----------------------
TRIAL BY JURY IN ANY ACTION BROUGHT ON, UNDER OR BY VIRTUE OF OR RELATING IN ANY
WAY TO THIS AGREEMENT OR ANY OF THE DOCUMENTS OR CERTIFICATES EXECUTED IN
CONNECTION HEREWITH, OR ANY CLAIMS, DEFENSES, RIGHTS OF SET-OFF OR OTHER ACTIONS
PERTAINING HERETO OR THERETO.
Purchaser's Initials: /s/ [ILLEGIBLE] Seller's Initials: /s/ [ILLEGIBLE]
Section 7.15 Time Is of Essence. TIME IS OF THE ESSENCE under this
------------------
Agreement, each and all of the other documents and certificates executed in
connection herewith, and each and every term, covenant, condition and provision
hereof and thereof.
Section 7.16 Effective Date. Notwithstanding the fact that this Agreement
--------------
may have been executed on a date prior or subsequent thereto, this Agreement
shall be deemed effective on the date on which each and all of the following
conditions precedent to effectiveness are satisfied (but not prior thereto): (a)
Purchaser shall have executed and delivered this Agreement to Seller and the
▇▇▇▇▇▇▇ Money Trust Agreement to Escrow Agent and Seller; (b) concurrently with
the execution and delivery by Purchaser of this Agreement and the ▇▇▇▇▇▇▇ Money
Trust Agreement, the ▇▇▇▇▇▇▇ Money shall have been deposited and paid in full in
accordance with the provisions of Section 3.1(a); and (c) Seller shall have
--------------
executed and delivered this Agreement and the ▇▇▇▇▇▇▇ Money Trust Agreement to
Purchaser and Escrow Agent. Any calculation of time periods within which
Purchaser or Seller must act or respond which refer in any way to the date
45
of this Agreement shall mean and refer to the Effective Date and not the date
set forth on the first page hereof. Each party agrees to confirm in writing,
upon request, the Effective Date hereof.
Section 7.17 No Recording. Purchaser and Seller hereby agree that neither
------------
this Agreement nor any memorandum hereof shall be recorded. Each party hereby
agrees to indemnify and hold harmless the other for all liabilities, losses,
damages, liens, suits, claims, costs and expenses (including reasonable
attorneys' fees) incurred by the other by reason of a breach of the foregoing
covenant.
Section 7.18 Informed Consent. Each of Purchaser and Seller hereby
----------------
acknowledges for the benefit of the other that: (a) it has thoroughly read and
reviewed the terms and provisions of this Agreement and each of the other
documents and certificates to be executed in connection herewith and is familiar
with same; (b) the terms and provisions hereof and thereof are clearly
understood and have been fully consented to; (c) it has had the full benefit and
advice of counsel of its own selection, in regard to understanding the terms and
provisions hereof and thereof, the meaning and effect of this Agreement and each
of the other documents and certificates to be executed in connection herewith,
and otherwise as desired; and (d) all such documents have been entered into
freely, voluntarily, in good faith, with full knowledge of the consequences
thereof and without duress.
Section 7.19 Further Assurances. Seller and Purchaser hereby agree, upon
------------------
reasonable request of the other party, to do, execute, acknowledge and deliver,
or to cause to be done, executed, acknowledged and delivered, all such further
acts and instruments as may be reasonably required to effectuate the
transactions contemplated hereby. All costs and expenses incurred by either
party in connection with this Section shall be paid by the party making the
request pursuant hereto.
Section 7.20 Counterparts. This Agreement may be executed in one or more
------------
counterparts, each of which shall constitute an original and all of which
together shall constitute but one original. This Agreement shall not be
effective unless and until executed and delivered by Purchaser and Seller in one
or more counterparts.
Section 7.21 WAIVER OF CONSUMER PROTECTION/DECEPTIVE TRADE PRACTICES ACTS.
------------------------------------------------------------
PURCHASER HEREBY REPRESENTS AND WARRANTS TO SELLER THAT: (I) IT SEEKS TO ACQUIRE
AND WILL BE ACQUIRING THE PROPERTY, INCLUDING THE LEASES AND CONTRACTS, AND
OBLIGATIONS FOR COMMERCIAL PURPOSES ONLY, AND NOT FOR PERSONAL, FAMILY OR
HOUSEHOLD PURPOSES; (II) PURCHASER IS EXPERIENCED AND HAS PREVIOUSLY ENGAGED IN
THE ACQUISITION OF PROPERTY AND OTHER TRANSACTIONS OF THE TYPE CONTEMPLATED
HEREUNDER; AND (III) NEITHER THIS AGREEMENT NOR ANY OF THE TRANSACTIONS
CONTEMPLATED HEREUNDER, INCLUDING THE PURCHASE AND SALE OF THE PROPERTY,
INCLUDING THE LEASES AND CONTRACTS, AND OBLIGATIONS, IS A CONSUMER TRANSACTION
AND/OR GOVERNED, OR INTENDED TO BE GOVERNED, BY ANY CONSUMER PROTECTION, UNFAIR
OR DECEPTIVE, TRADE OR CONSUMER FRAUD ACTS IN THE JURISDICTION IN WHICH THE
PROPERTY IS LOCATED OR TO WHICH THIS AGREEMENT IS SUBJECT, AND
46
PURCHASER HEREBY WAIVES UNCONDITIONALLY AND IRREVOCABLY ALL RIGHTS, BENEFITS,
PROTECTIONS, REMEDIES AND OTHER PROVISIONS THEREOF AND THEREUNDER.
Section 7.22 Securities Acknowledgments. Purchaser, for itself and each of
--------------------------
the Purchaser Parties, hereby represents and acknowledges the following to the
actual knowledge of Purchaser:
(a) notwithstanding any Information, cooperation or assistance of
any kind by any of the Seller Parties from time to time, none of the Seller
Parties is intended to be or shall be construed as a party to or a
participant in any transaction entered into by Purchaser in connection with
any Transfer or Financing entered into by the Purchaser Parties of or for
any of the Property or any Securities in or relating to any of the
foregoing, which Financing, Transfer and/or Securities transactions are
acknowledged to be, insofar as the Seller Parties are concerned, for the
sole benefit of Purchaser and/or the other Purchaser Parties; and,
(b) none of the Seller Parties shall have any disclosure, other
responsibilities or Liabilities in connection with any Transfer or
Financing entered into by the Purchaser Parties of or for any of the
Property or any Securities in or relating to any of the foregoing,
including the completeness or accuracy of any Information and any decisions
to include or exclude any Information, or any inclusion or failure to
include any other information, in any offering materials prepared, used or
disseminated in connection with any of the foregoing. Nothing herein is
intended to diminish or eliminate either party's express representations
and warranties to the other party set forth in this Agreement or in the
Conveyancing Documents.
Section 7.23 Public Disclosure. Prior to and after the Closing, any release
-----------------
to the public of information with respect to the sale contemplated herein or any
matters set forth in this Agreement, other than any filings which Purchaser is
required by Securities Laws to make with the Securities and Exchange Commission,
will be made only in the form approved by Purchaser and Seller which approval
shall not be unreasonably withheld, conditioned or delayed. The provisions of
this Section 7.23 will survive the Closing or any termination of this Agreement.
Section 7.24 Letter of Understanding. Purchaser and Seller acknowledge and
-----------------------
agree that certain letter of understanding dated October 17, 2001 and all prior
and subsequent letters or expressions of intent between Seller and Purchaser (or
Broker) are hereby deemed terminated, of no further force and effect, and
superseded by the terms of this Agreement.
Section 7.25 Like Kind Exchange. Seller, at its option, may elect to use
------------------
the proceeds for the sale of the Property to purchase a replacement property as
part of a like-kind exchange under Section 1031 of the Internal Revenue Code of
1986, as amended. If Seller desires to sell the Property as part of such a
like-kind exchange, Seller shall notify Purchaser no later than two (2) business
days prior to the Closing Date. Provided Seller has so notified Purchaser,
Purchaser agrees to cooperate with Seller to effect the like-kind exchange
contemplated hereunder and to execute and deliver all documents which reasonably
may be required to effectuate such exchange as a qualified transaction pursuant
to Section 1031 of the Code, including, without limitations,
47
documents evidencing Purchaser's consent to one (1) or more assignments of this
Agreement; provided that: (i) the Closing shall not be delayed; (ii) Purchaser
incurs no additional cost or liability in connection with the like-kind
exchange; (iii) Seller pays all costs associated with the like-kind exchange;
and (iv) Purchaser is not obligated to take title to any other property.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
48
IN WITNESS WHEREOF the parties have executed this Agreement as of the date
first written above.
PURCHASER:
---------
▇▇▇▇▇ CAPITAL, INC., a Georgia corporation
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇
--------------------------------------
Name: ▇▇▇ ▇. ▇▇▇▇▇
-------------------------------
Title: PRESIDENT
-------------------------------
SELLER:
------
WINDY POINT OF SCHAUMBURG, LLC,
a Delaware limited liability company
By: FRC Windy Point L.L.C., an Illinois
limited liability company, its member
By: /s/ ▇▇▇▇▇▇ ▇.▇▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------
Title: Managing Member
-------------------------------
49
JOINDER
-------
Each of the undersigned parties hereby joins in the execution of this
Agreement for Purchase and Sale (this "Agreement") for the purpose of binding
itself on a joint and several basis with one another and on a joint and several
basis with Seller to all of the obligations of Seller, FRC Windy Point and
Travelers Windy Point contained in Section 5.3 of this Agreement.
FRC WINDY POINT:
----------------
FRC WINDY POINT L.L.C., an Illinois limited
liability company
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------
Title: Managing Member
------------------------------------
TRAVELERS WINDY POINT:
----------------------
TRAVELERS SCHAUMBURG WINDY POINT, LLC,
a Delaware limited liability company
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-------------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
----------------------------------------
Title: Vice President
----------------------------------------
50
EXHIBIT A
---------
LEGAL DESCRIPTION OF PROPERTY
-----------------------------
Parcel 1:
---------
▇▇▇ ▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇ in ▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇,
▇▇▇▇ of the Third Principal Meridian, according to the plat thereof recorded as
document number 99137488, in ▇▇▇▇ County, Illinois.
Parcel 2:
---------
▇▇▇ ▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇ in ▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇,
▇▇▇▇ of the Third Principal Meridian according to the plat thereof recorded as
document number 99137488, in ▇▇▇▇ County, Illinois.
Parcel 3:
---------
Easements for ingress and egress, utilities, storm drainage, parking and signage
for the benefits of parcels 1 and 2 aforesaid as set forth in the Declaration of
Covenants, Conditions, Restrictions, Reciprocal Rights and Easements for Windy
Point of Schaumburg Subdivision recorded February 9, 1999, as document number
99137489.
A-1
