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EXHIBIT 10 (OO)
PURCHASE/SALE AGREEMENT DATED AND EFFECTIVE DECEMBER 16, 1997 BETWEEN THE
COMPANY, AS BUYER, AND CONTINENTAL EXECUTIVE XXXXX, VERNON HILLS, ILLINOIS,
MADE ON MARCH 2, 1998
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Xxxxxx X. Xxxxxx
Xxxxxxxx & Xxxx
000 Xxxxx Xxxxxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000-0000
December 22, 1997
Xx. Xxxxx Xxxxxxx
CDW Computer Centers, Inc.
000 X. Xxxxxxxxx Xxxxxx
Xxxxxx Xxxxx, Xxxxxxxx 00000
RE: CONTINENTAL EXECUTIVE XXXXX, VERNON HILLS, IL - XXXX 00, 00 XXX 00
Xxxx Xx. Xxxxxxx:
Enclosed for your files is a fully executed copy of the Agreement of
Purchase and Sale and Joint Escrow Instructions for Parcel 17 and Parcels 89 and
90.
Please note, the Agreements are incorrectly dated November 16, 1997
instead of December 16, 1997, but the Seller has confirmed in writing that the
correct effective date for both Agreements is December 16, 1997. A copy of said
letter agreement is also enclosed for your files.
Of course, should you have any questions or comments, please contact
me.
Very truly yours,
/s/ Xxxxxx X. Xxxxxx
--------------------
Xxxxxx X. Xxxxxx
DBZ/ncr
Enclosure
Cc: Mr. Xxx Xxxxxxxx (w/enclosures)
Xxxxxxx X. Xxxxxx
221339_1
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Xxxxxx X. Xxxxxx
Xxxxxxxx & Xxxx
000 Xxxxx Xxxxxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000-0000
December 19, 1997
VIA FACSIMILE: (000) 000-0000
Xxxxx X. Xxxxxx, Esq.
c/o Pacific Realty Associates, L.P.
00000 X.X. Xxxxxxx Xxxx.
Xxxxx 000
Xxxxxxxxx, Xxxxxx 00000
RE: AGREEMENT OF PURCHASE AND SALE AND JOINT ESCROW INSTRUCTIONS FOR XXXX
00 & 00, XXXXXXXXXXX XXXXXXXXX XXXXX, XXXXXX XXXXX, XX; AND AGREEMENT
OF PURCHASE AND SALE AND JOINT ESCROW INSTRUCTIONS FOR LOT 17 IN
CONTINENTAL EXECUTIVE XXXXX, VERNON HILLS, IL
Dear Xx. Xxxxxx:
Pursuant to our telephone conversation this afternoon, while I was
reviewing the above-referenced fully-executed Agreements that we received
yesterday afternoon, I noticed that both Agreements are erroneously dated
November 16, 1997 instead of December 16, 1997. Obviously this was just an
oversight, as your letter to Chicago Title dated December 17, 1997 references
that the Agreements are dated December 16, 1997.
The purpose of this letter is to confirm that the parties agree that
the correct effective date for both Agreements is December 16, 1997 and that all
dates, including, but not limited to, the contingency dates set forth in Section
3 of each Agreement, shall be based on the Agreements being dated December 16,
1997.
If the foregoing states your client's understanding and agreement, I
would appreciate you executing a copy of this letter on behalf of the Seller
below, and returning the same to me by facsimile today with the original to
follow by regular mail. If the foregoing is inaccurate, please contact me
immediately.
Your execution of this letter agreement shall be your affirmation of
your authority to act on behalf of your client to effectuate and confirm this
matter.
Of course, should you have any questions or comments, please contact
me.
Very truly yours,
/s/ Xxxxxx X. Xxxxxx
--------------------
Xxxxxx X. Xxxxxx
DBZ/ncr
Cc: Xxxxxxx X. Xxxxxx
AGREED:
By: /s/ Xxxxx X. Xxxxxx
-------------------
Attorney for Seller
Date: December 19, 1997
221034_1
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Continental Executive Xxxxx
Parcels 89 & 90, Vernon Hills, IL
AGREEMENT OF PURCHASE AND SALE
AND JOINT ESCROW INSTRUCTIONS
THIS AGREEMENT OF PURCHASE AND SALE AND JOINT ESCROW INSTRUCTIONS (this
"AGREEMENT") is made and entered into as of this 16 day of November, 1997, by
and between CONTINENTAL EXECUTIVE XXXXX, L.L.C., an Illinois limited liability
company ("SELLER"), and CDW COMPUTER CENTERS, INC., an Illinois corporation
("BUYER").
1. AGREEMENT OF PURCHASE AND SALE; DESIGNATION OF ESCROW HOLDER.
1.1. Subject to and on the terms and conditions herein set forth, Seller hereby
agrees to sell, assign and convey to Buyer, and Buyer hereby agrees to purchase
and acquire from Seller, that real property located in Continental Executive
Xxxxx, Village of Xxxxxx Hills, Lake County, Illinois, known as Lots 2 and 3,
Continental Executive Xxxxx Resubdivision No. 17, including all appurtenances
thereto and improvements thereon (the "Property").
1.2. The purchase and sale of the Property shall be accomplished through an
escrow (the "ESCROW") which Seller has established or will establish with
Chicago Title Insurance Company (the "ESCROW HOLDER") at 000 XX Xxxxx Xxxxxx,
Xxxxxxxx, Xxxxxx 00000, Attention: Xxxxx Xxxxxxxxx (503 248-0955).
2. CONSIDERATION; METHOD OF PAYMENT.
The purchase price which Buyer shall pay to Seller for the Property
shall be Four Million Three Hundred Thousand Sixty-Three Dollars ($4,300,063)
through Escrow at the Closing as follows:
2.1. Concurrently with its execution of this Agreement, Buyer shall deposit with
the Escrow Holder a certified or cashier's check in the amount of Two Hundred
Fifteen Thousand Dollars ($215,000) (the "XXXXXXX MONEY DEPOSIT"). The Escrow
Holder shall immediately deposit the Xxxxxxx Money Deposit in a
federally-insured financial institution reasonably satisfactory to Buyer and
Seller in an account in the name of Buyer. All interest earned on the Xxxxxxx
Money Deposit shall be and become a part of the Xxxxxxx Money Deposit and shall
be handled in the same manner as the Xxxxxxx Money Deposit as provided for
herein.
2.2. Subject to the provisions of Section 3.4.6 hereof, the balance of the
purchase price shall be deposited by Buyer in Escrow strictly as and when
required under Section 10 hereof.
2.3. In the event Buyer fails to deposit the Xxxxxxx Money Deposit in Escrow
strictly as and when contemplated under Section 2.1 above, Seller shall have the
right at any time thereafter to terminate this Agreement and all further rights
and obligations hereunder by giving written notice to Buyer.
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2.4. In the event that Buyer fails to deposit the balance of the purchase price
in Escrow strictly as and when contemplated under Section 2.2 above, Seller
shall be entitled to retain the Xxxxxxx Money Deposit as liquidated damages as
more fully provided in Section 15 hereof.
3. CONDITIONS PRECEDENT TO BUYER'S AND SELLER'S OBLIGATIONS TO CLOSE.
3.1. Set forth in Section 3.4 below are certain conditions precedent to the
obligation of Buyer to consummate the transaction contemplated by this
Agreement. Each such condition must be satisfied or waived in writing by Buyer
or deemed satisfied as provided in this Section 3 before Buyer shall be
obligated to consummate this transaction.
3.2. Within the period specified below for each condition precedent, Buyer shall
give written notice to Seller stating, with respect to each such condition
precedent, whether such condition is satisfied or remains unsatisfied, in the
reasonable opinion of Buyer, or is waived by Buyer. With respect to any such
condition which remains unsatisfied, Buyer shall specify in such notice in
reasonable detail the reason therefor. In the event that Buyer fails timely to
give such notice with respect to any such condition, such condition shall be
deemed to be satisfied.
3.3. In the event that Buyer gives timely notice that any condition precedent is
unsatisfied as provided above, Seller shall have the right, but not the
obligation, for a period of ten (10) days after receipt of such notice to
attempt to bring about the satisfaction of the specified condition. In the event
that Buyer fails timely to give such notice, such condition shall be deemed
satisfied. In the event that any condition remains unsatisfied as of the time
period specified below with respect to such condition (or ten (10) days
thereafter in the event that Seller elects to attempt to bring about the
satisfaction of such condition after notice from Buyer that such condition is
unsatisfied as provided above) either party may terminate this Agreement by
giving written notice to the other party and the Escrow Holder specifying the
unsatisfied condition or conditions. In the event of such termination, the
Escrow Holder shall terminate the Escrow and return the Xxxxxxx Money Deposit to
Buyer, and, except as otherwise expressly provided in this Agreement, neither
party shall have any further rights or obligations under this Agreement. Buyer
and Seller shall each be responsible for payment to the Escrow Holder of
one-half of the Escrow fees and charges related to termination, if any.
3.4. The conditions precedent to Buyer's obligation to consummate this
transaction are the following:
3.4.1. Within ten (10) days after receipt of a current Preliminary Title Report
or Commitment for the Property (the "TITLE REPORT") and copies of all documents
constituting exceptions to title of record which are specified in Schedule B of
the Title Report, Buyer shall have approved or disapproved title to the Property
as shown in the Title Report. Unless Seller has already done so, Seller shall
order the Title Report and documents promptly after full execution of this
Agreement.
3.4.2. Within twenty (20) days after receipt of a current ALTA survey of the
Property, Buyer shall have approved or disapproved the survey and all matters
disclosed thereby. Unless Seller has already done so, Seller shall order the
survey promptly after full execution of this Agreement.
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3.4.3. Within sixty (60) days after the date of this Agreement, Buyer shall have
conducted or obtained, at its sole cost and expense, all feasibility analyses
and surveys (in addition to the survey provided by Seller pursuant to Section
3.4.2 above), tests, audits and studies and shall have conducted such physical
and other inspections as Buyer deems necessary to enable Buyer to approve the
purchase of the property and the physical condition of the Property, including
without limitation the structural condition of any improvements, all zoning and
land use matters, and the soils and ground water conditions in and about the
Property.
IN THIS REGARD, SELLER HEREBY REPRESENTS THAT THERE
MAY BE ON THE PROPERTY UNDERGROUND STORAGE TANKS, ASBESTOS-CONTAINING
MATERIALS, AND/OR TRANSFORMERS OR OTHER EQUIPMENT CONTAINING POLYCHLORINATED
BIPHENYLS (PCB's), AND/OR OTHER HAZARDOUS MATERIALS (AS DEFINED IN SECTION
4.3 BELOW), ANY OF WHICH MAY EXIST IN CONJUNCTION WITH ATTENDANT SOIL OR
GROUND WATER CONTAMINATION.
Buyer and its agents may enter onto the Property
to make such inspections, audits, studies, tests and surveys thereof as Buyer
deems reasonably necessary to bring about the satisfaction of this condition;
provided, however, that no grading shall be done, no trees or bushes shall be
cut and Buyer shall not conduct any drilling or install any xxxxx without
Seller's prior written consent; and provided, further, that Buyer shall have
provided Seller with a certificate of liability insurance naming the Seller
as an additional insured and with coverages of not less than $3,000,000 for
property damage and death or injury (combined single limit). Buyer shall keep
in strict confidence the results of any such inspections, audits, studies, tests
and surveys, and shall disclose the results thereof only if and as required by
law or legal process. Buyer shall keep the Property free and clear of any liens
resulting from any such entry onto the Property; Buyer shall repair any damage
to the Property resulting from such entry; and Buyer shall defend Seller with
counsel reasonably satisfactory to Seller and protect, hold harmless and
indemnify Seller from and against any and all claims, demands, damages,
liabilities or costs of any kind whatsoever (including attorneys' fees) arising
out of or connected with any such entry onto the Property or the disclosure of
the results of any such inspections, audits, studies, tests and surveys in
contravention of Buyer's confidentiality obligations contained in this Section
3.4.3. In the event Buyer terminates this Agreement for failure of a condition
precedent as provided in this Section 3, Buyer shall deliver a copy of all such
surveys, tests, audits and studies and the results of any and all physical
inspections to Seller as a condition precedent to Buyer's right to obtain
disbursement of Buyer's Xxxxxxx Money Deposit. The foregoing covenants of
Buyer shall survive and be enforceable following consummation or termination of
this Agreement.
3.4.4. As of the Closing (as defined in Section 8 hereof), Seller shall have
given no notice to Buyer stating that Seller has obtained knowledge or notice of
any fact or facts which would make any representation or warranty of Seller set
forth in Section 5 hereof untrue or misleading in any material respect.
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3.4.5. As of the Closing (as defined in Section 8 hereof), Seller shall have
performed each and all of the obligations to be performed by Seller under this
Agreement prior to the Closing.
3.4.6. A condition precedent to Seller's obligation to consummate the
transaction contemplated by this Agreement shall be that We'll Take Care of You,
L.L.C., Buyer or an affiliate of Buyer shall have entered into a separate sale
agreement for the purchase from Seller of the real property known as Parcel 17
in Continental Executive Xxxxx, the closing on which the parties anticipate will
occur simultaneously with or after Closing under this Agreement. Seller, in its
sole discretion, may elect to waive this condition prior to or at Closing.
4. SELLER'S DISCLAIMER WITH RESPECT TO PHYSICAL CONDITION OF PROPERTY AND
APPLICABLE LAWS AND REGULATIONS; BUYER TO TAKE PROPERTY "AS IS";
RESTRICTIVE USE; BUYER'S RELEASE AND INDEMNITY RE: ENVIRONMENTAL HAZARD
RISKS.
4.1. Except as provided in Section 3.4.3 above and Section 5 below, Seller makes
no representation or warranty whatsoever with respect to the physical condition
of the Property. Buyer acknowledges that:
4.1.1. Buyer has entered into this Agreement, and if Buyer purchases the
Property Buyer will do so, on the basis of its own investigation of the all
aspects of the Property including without limitation all physical conditions
thereof, including any building and other improvements and the soils and ground
water conditions of the Property and its immediate environs; and
4.1.2. Buyer will acquire the Property in an "AS IS" condition and shall assume
the risks that adverse physical or other conditions may not have been revealed
by its investigation.
4.2. Seller makes no representation or warranty whatsoever as to existing or
proposed governmental laws or regulations applicable to the Property, including
without limitation laws or regulations concerning zoning or land use or
Hazardous Materials (as defined in Section 4.3 below). Buyer acknowledges that
it has entered into this Agreement, and if Buyer purchases the Property Buyer
will do so, on the basis of its own review and investigation of the
applicability and effect of such laws and regulations, and Buyer assumes the
risks that adverse matters may not have been revealed by its investigation.
4.3. Effective as of Close of Escrow (as defined in Section 8 below), Buyer
hereby waives, releases, acquits and forever discharges Seller and its officers,
directors, partners, employees, agents, and any other person acting on behalf of
Seller, from and against any and all claims, actions, causes of action, demands,
rights, damages, costs, expenses or compensation whatsoever, direct or indirect,
known or unknown, foreseeable or unforeseeable, which Buyer now has or which may
arise in the future on account of or in any way growing out of or connected with
the presence in or on the Property, or any building or other improvement
thereon, or under the surface of the Property, of underground storage tanks,
asbestos-containing materials, transformers or other equipment containing
polychlorinated biphenyls, or any hazardous or toxic waste, substance or
material as defined in any Federal, State or Local law, rule, ordinance or
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regulation which may now or hereafter be applicable (collectively, the
"HAZARDOUS MATERIALS"). Buyer hereby agrees to protect, defend, indemnify and
hold Seller and its officers, directors, partners, employees, agents, and any
other person acting on behalf of Seller, free and harmless from and against any
and all losses, actual or consequential damages whether foreseeable or not,
punitive damages, fines, liabilities, costs (including costs of clean-up or
other remediation and required studies), interest, attorneys' fees (including
such fees and expenses incurred in enforcing this indemnity), suits, causes of
action, legal or administrative proceedings, demands, or claims (including,
without limitation, claims for personal injury) made, threatened or asserted by
any person, party or governmental entity or agency by reason of or in any way
connected with the presence in or on the Property, or any building or other
improvement thereon, or under the surface of the Property, of Hazardous
Materials. The foregoing covenants of Buyer shall survive and be enforceable in
accordance with their terms following the consummation of this transaction and
shall not be merged with or into the deed delivered by Seller to Buyer through
Escrow at Close of Escrow.
4.4. Promptly after the mutual execution of this Agreement, Seller will make
available to Buyer, for Buyer's review and photocopying at its sole expense,
during normal business hours, all environmental and engineering documents in the
possession of Seller relating to the Property (excluding appraisals, financial
information confidential to Seller and its partners, and attorney-client
privileged communications, if any). Such file review may take place at a
mutually-convenient location to be coordinated at Buyer's request by Xxxxx
Development (Xxxxxx Xxxxxxxxxx) at 000-000-0000. Seller does not warrant (and
Buyer releases Seller from any responsibility or liability for) the accuracy,
fitness or reliability of any such documentation or any recommendations or
conclusions contained therein. All documentation copied from Seller's files and
the information contained therein shall be treated as confidential and shall not
be revealed or otherwise disclosed by Buyer except (i) with the prior written
consent of Seller, (ii) as required pursuant to law, court order or subpoena,
(iii) as may be reasonably required by Buyer's lender [provided such lender
treats such documentation and information as confidential, subject to the
exceptions stated in the foregoing clauses (i) and (ii)], or (iv) for the
exercise by Buyer of any remedy hereunder. In addition, in the event the
transaction contemplated by this Agreement does not close, Buyer shall promptly
return to Seller all such documentation without keeping any copies thereof
except to the extent reasonably necessary in connection with any legal
proceeding pertaining to the Property involving Buyer.
5. REPRESENTATIONS AND WARRANTIES OF SELLER.
5.1. Seller makes the following representations and warranties, each of which is
true in all respects as of the date hereof and shall be true as of the Closing
except to the extent that Seller obtains knowledge or notice of any fact or
facts that would make any representation or warranty untrue or misleading in any
material respect and discloses such fact or facts to Buyer in writing prior to
the Closing:
5.1.1. Seller is duly organized, validly existing and in good standing under the
laws of the State of Illinois.
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5.1.2. This Agreement has been duly executed and delivered by Seller and is a
valid and binding obligation of Seller, enforceable against Seller in accordance
with its terms.
5.1.3. To Seller's actual knowledge, without inquiry, there is no condemnation
or eminent domain proceeding pending or threatened against the Property.
5.1.4. To Seller's actual knowledge, without inquiry, there is no litigation
pending or threatened which affects the Property or that would or might affect
the transaction contemplated hereby or the ability of Seller to satisfy all of
its obligations hereunder.
5.1.5. Seller has not received any written notification from any insurance
company, Board of Insurance Underwriters or any governmental authority
specifying any non-compliance of the Property or any portion thereof with
applicable codes, statutes, ordinances or regulations that remains uncured.
5.1.6. Seller is not a foreign person as defined in Internal Revenue Code
Section 1445(f)(3).
5.1.7. There are no leases or tenancies or service contracts affecting the
Property that will not be terminated prior to or as of Closing.
5.1.8. There are no outstanding contracts for the purchase of the Property or
any portion thereof, and neither the Property nor any portion thereof is subject
to any other contracts of sale or option.
5.2. Buyer and Seller each specifically acknowledge and agree that all
references contained in this Agreement to "Seller's knowledge" or words of
similar import (i) shall refer to the actual personal knowledge of F. Xxxxxxx
Xxxxxx ("Xx. Xxxxxx"); (ii) shall in no case refer to the actual or constructive
knowledge of any other employee, agent, officer, director or other
representative of Seller or any investment advisor, attorney or other contractor
or representative of Seller (together with Xx. Xxxxxx, the "Seller
Representatives"); and (iii) shall in no case impose upon Seller or any Seller
Representative any duty or obligation to verify any representation, warranty or
statement contained in this Agreement, in any exhibit attached hereto or in any
document, certificate or statement to be delivered by Seller to Buyer hereunder,
or to otherwise investigate the facts or circumstances relating or otherwise
pertinent thereto.
5.3. In the event of a breach of any of the foregoing representations and
warranties, Buyer's sole right and remedy with respect to such breach, in
addition to the right to attorney fees as allowed by Section 18 hereof, shall be
to compel Seller to take such action at Seller's expense as may be necessary to
cure the breach (and in no event will Buyer have any right to rescind this
transaction or seek consequential damages). Said right of Buyer (and the
concomitant obligation of Seller) following any such breach of representation or
warranty shall survive the consummation of this Agreement.
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6. REPRESENTATIONS AND WARRANTIES OF BUYER.
Buyer hereby makes the following representations and warranties, each
of which is true in all respects as of the date hereof and shall be true as of
the Closing except to the extent that Buyer obtains knowledge or notice of any
fact or facts that would make any representation and warranty untrue or
misleading in any material respect and discloses such fact or facts to Seller in
writing prior to the Closing:
6.1. Buyer is duly organized, validly existing and in good standing under the
laws of the State of Illinois.
6.2. The persons executing this Agreement on behalf of Buyer are authorized to
do so and, upon execution by such parties, this Agreement shall be a valid and
binding obligation of Buyer, enforceable against Buyer in accordance with its
terms.
7. BUYER'S TITLE INSURANCE POLICY.
Buyer's title to the Property at Close of Escrow shall be evidenced by
the issuance of a standard (or, at Buyer's option, an extended coverage) owner's
policy of title insurance (the "BUYER'S TITLE INSURANCE POLICY") at the Closing
in favor of Buyer or its nominee insuring that fee simple title to the Property
is vested in Buyer or its nominee, subject only to (a) the lien to secure
payment of real estate taxes and assessments not delinquent; (b) the exceptions
to title approved by Buyer pursuant to Section 3 of this Agreement; (c) all
matters that would be disclosed by a physical inspection or survey of the
Property (provided that this exception shall be deleted from an extended
coverage owner's title insurance policy) or that are actually known to Buyer;
(d) any additional exceptions or matters created by Buyer, its agents, employees
or authorized representatives; (e) the printed conditions, restrictions,
exceptions, stipulations and other provisions contained in Buyer's Title
Insurance Policy; and (f) such other exceptions as Buyer, in its sole
discretion, may approve in writing. All matters concerning title to the Property
shall merge in the deed to be delivered by Seller to Buyer at the Closing.
Seller's obligation with respect to the condition of title to the Property at
the Closing shall be completely satisfied and fulfilled upon the issuance by the
Escrow Holder of Buyer's Title Insurance Policy. Absent fraud on the part of
Seller, in the event of any defect in or other matter adversely affecting title
to the Property which appears following the Closing, Buyer shall look solely to
Buyer's Title Insurance Policy to obtain any redress or relief for any damages
incurred by Buyer as a result of said defect or matter and Buyer hereby releases
Seller from any and all cost, damage, claim or liability arising out of any such
defect or matter.
8. CLOSING DATE; CLOSE OF ESCROW.
8.1. Unless this Agreement has been terminated pursuant to Section 3 hereof and
unless deferred as provided in Section 13 hereof, the consummation of the
purchase and sale of the Property in accordance with this Agreement (the
"CLOSING") shall take place as soon as possible on the date which is fifteen
(15) days after the last of the conditions precedent set forth in Section 3.4
hereof has been satisfied or waived by Buyer, unless such date is a Saturday,
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Sunday or business holiday, in which event the Closing shall take place on the
next regularly scheduled business day (the "CLOSING DATE") at the office of the
Escrow Holder or as otherwise agreed to by the parties. "CLOSE OF ESCROW" shall
mean the recordation of the deed vesting title to the Property in Buyer and the
disbursement to Seller in accordance with its instructions of the proceeds in
Escrow in Seller's account at the Closing. 8.2. At the Closing the Escrow Holder
shall disburse to Seller, in such manner and to such account as Seller shall
specify in a separate written instruction to the Escrow Holder, immediately
available funds in the amount of the purchase price paid by Buyer for the
Property as specified in Section 2 hereof (increased or decreased, as the case
may be, by the net amount of the credits and debits to Seller's account at
Closing made by the Escrow Holder in accordance with Section 11 of this
Agreement).
9. SELLER'S CLOSING OBLIGATIONS.
9.1. By such time and date as may be required by the Escrow Holder to permit
Closing to occur on or by the Closing Date, Seller shall deposit in Escrow: (i)
a duly executed and acknowledged special warranty deed or equivalent for the
conveyance of the Property to Buyer in accordance with this Agreement; (ii) a
quitclaim and/or assignment of any licenses and permits affecting the Property;
(iii) a certification executed by Seller confirming that the representations and
warranties contained in Section 5 above are true and correct as of the date of
Closing; (iv) any disclosure document as defined in and if required by the
Illinois Responsible Property Transfer Act; (v) any other documents, instruments
or things required by this Agreement to be delivered by Seller to Buyer or
deposited by Seller into Escrow at the Closing; and (vi) any supplemental
instructions which the Escrow Holder may require for the consummation of the
transaction in accordance with this Agreement.
9.2. By such time and date as may be required by the Escrow Holder to permit
Closing to occur on or by the Closing Date, Seller shall deposit cash or
immediately available funds in Escrow in such amount as (or make other
arrangements satisfactory to the Escrow Holder) to cover any net obligations of
Seller arising out of the prorations and apportionment of Closing costs as
specified in Section 11 of this Agreement as may be reasonably estimated by the
Escrow Holder.
10. BUYER'S CLOSING OBLIGATIONS.
10.1. By such time and date as may be required by the Escrow Holder to permit
Closing to occur on or by the Closing Date, Buyer shall deposit in Escrow: (i)
any instruments, documents or things required by this Agreement to be delivered
by Buyer to Seller or deposited into Escrow at the Closing; and (ii) any
supplemental instructions which the Escrow Holder may reasonably require for
consummation of the transaction in accordance with this Agreement.
10.2. By such time and date as may be required by the Escrow Holder to permit
Closing to occur on or by the Closing Date, Buyer shall deposit immediately
available funds (e.g., by cashier's check or wire transfer) into such account of
the Escrow Holder as shall be specified by the Escrow Holder in the sum of the
following amounts:
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10.2.1. The balance of the purchase price as specified in Section 2.2 hereof;
and
10.2.2. Such amount as may be reasonably estimated by the Escrow Holder to cover
any net obligations of Buyer arising out of the prorations and apportionment of
closing costs pursuant to Section 11 of this Agreement.
11. CLOSING PRORATIONS; APPORTIONMENT OF CLOSING COSTS.
Current real property taxes and assessments, any rents, utilities and
common area maintenance charges shall be prorated as of midnight of the day
preceding the Closing Date. If the amount of the current real property taxes is
not then ascertainable, the proration thereof shall be on the basis of the
amount of 110% of the most recent ascertainable real estate tax xxxx. Seller
shall pay any state or county transfer taxes, the title insurance premium for
the Buyer's Title Insurance Policy and the cost for the survey delivered
pursuant to Section 3.4.2 above. Buyer shall pay the cost of recording the Deed
and any of Buyer's financing documents and the cost of all endorsements to the
Buyer's Title Insurance Policy beyond those customarily given in an extended
coverage owner's title insurance policy. All other Closing costs, including
without limitation the escrow fee, shall be apportioned to and paid by the
parties equally.
12. COMMISSIONS.
12.1. Seller shall pay through Escrow at the Close of Escrow and conditional on
the Close of Escrow a commission in the amount of two and one-half percent
(2.5%) of the purchase price payable to Xxxxx/Xxxxxx Associates, Inc., and a
commission in the amount of two and one-half percent (2.5%) of the purchase
price payable to Xxxxxx & Xxxxxxx.
12.2. Buyer and Seller hereby acknowledge that no broker's commission or
finder's fee other than that referred to Section 12.1 above is payable with
regard to the transaction contemplated by this Agreement; and Buyer and Seller
(each being hereinafter referred to in this Section 12 as the "Indemnitor") each
agrees to defend with counsel reasonably satisfactory to the other party and
indemnify the other party from and against all liability, claims, actions,
causes of action, suits, demands, damages, or costs of any kind arising from or
connected with any broker's or finder's fee or commission or charge claimed to
be due any person arising from the Indemnitor's conduct with respect to said
transaction, other than the commission provided for in Section 12.1 above. This
obligation shall survive and be enforceable following the Closing or termination
of this Agreement.
13. DAMAGE OR DESTRUCTION; CONDEMNATION.
In the event of loss or of damage to the building improvements included
within the Property by fire or other casualty prior to Close of Escrow (a
"Casualty"), or in the event a proceeding is instituted or threatened prior to
Close of Escrow for the taking of all or any portion of the Property under the
power of eminent domain (a "Taking"), Buyer shall have the right by giving
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written notice to Seller and the Escrow Holder within thirty (30) days after the
date of receipt of written notice of any such Casualty or Taking, either to (i)
consummate the purchase and sale of the Property in accordance with this
Agreement (in which event Seller shall deliver to Buyer at Close of Escrow an
assignment reasonably satisfactory in form and substance to Buyer of all of the
right, title and interest, if any, which Seller may have in (A) the insurance
payable under all insurance policies kept or maintained by Seller as a result of
or in connection with such Casualty and (B) the award payable by reason of the
Taking and, concurrently therewith, deposit cash in Escrow for Buyer in the
amount of any and all such proceeds and award theretofore received by Seller);
or (ii) terminate this Agreement effective as of the date such notice of
termination is given to Seller. The Closing Date shall be deferred, if
necessary, to permit Buyer to have the thirty (30)-day period following a
Casualty or Taking to make the election specified hereinabove.
In the event of any such termination the Escrow Holder shall forthwith
terminate the Escrow. Seller and Buyer shall each be responsible for payment to
the Escrow Holder of one-half (1/2) of the Escrow fees and charges related to
termination, if any. Provided Buyer shall have given a copy to Seller of any and
all surveys, tests, audits and studies made by or for Buyer pursuant to Section
3.4.3 of this Agreement, upon termination of this Agreement as provided above in
this Section 13, the Escrow Holder shall forthwith disburse Buyer's Xxxxxxx
Money Deposit (and any interest earned thereon) to Buyer (less Buyer's share, if
then unpaid, of the Escrow fees and charges related to termination, if any).
14. NOTICES.
Any notice, demand, approval, consent, or other communication required
or desired to be given under this Agreement shall be in writing and shall be
given personally, by messenger (including overnight delivery service) or by
certified mail, return receipt requested, in each case with postage or other
charges prepaid, directed to the party involved at the address indicated below:
To Seller: Continental Executive Xxxxx, L.L.C.
c/o Pacific Realty Associates, L.P.
Attn: Xxxxx X. Xxxxxx, Esq.
00000 X.X. Xxxxxxx Xxxx., #000
Xxxxxxxx, XX 00000
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To Buyer: CDW Computer Centers, Inc..
Attn: Xx. Xxxxxxx X. Xxxxxx
0000 Xxxx Xxxx Xxxx Xxxx
Xxxxxxx Xxxxx, XX 00000-0000
And To:
Xxxxxxx Xxxxxx, Esq.
Xxxxxxxx & Xxxx
000 Xxxxxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, XX 00000-0000
Any notice, demand, approval, consent or other communication given
personally or by messenger shall be deemed to have been given on the date
delivered and any notice, demand, approval, consent or other communication given
by mail shall be deemed to have been given when three (3) days have elapsed from
the date it was sent by certified United States mail, return receipt requested,
postage prepaid, addressed to the party to be served at said address or at such
other address of which that party may have given notice under the provisions of
this Section.
15. LIQUIDATED DAMAGES.
15.1. SELLER AND BUYER ACKNOWLEDGE THAT SELLER IS VERY DESIROUS OF CLOSING THE
TRANSACTION CONTEMPLATED HEREBY WITHIN THE TIME FRAME ESTABLISHED BY THIS
AGREEMENT, AND THAT SUBSTANTIAL DAMAGES WILL BE SUFFERED BY SELLER IN THE EVENT
THAT THE PURCHASE AND SALE OF THE PROPERTY PROVIDED FOR IN THIS AGREEMENT DOES
NOT CLOSE WITHIN SUCH TIME FRAME DUE TO BUYER'S DEFAULT UNDER THIS AGREEMENT.
SELLER AND BUYER FURTHER ACKNOWLEDGE THAT SELLER WILL BE ENTITLED TO
COMPENSATION IF THE PURCHASE AND SALE OF THE PROPERTY DOES NOT CLOSE DUE TO
BUYER'S DEFAULT. WITH THE FLUCTUATION IN LAND VALUES, THE UNPREDICTABLE STATE OF
THE ECONOMY AND OF GOVERNMENTAL REGULATIONS, THE FLUCTUATING MARKET FOR REAL
ESTATE AND REAL ESTATE LOANS OF ALL TYPES, AND OTHER FACTORS WHICH DIRECTLY
AFFECT THE VALUE AND MARKETABILITY OF THE PROPERTY, THE PARTIES REALIZE THAT IT
WOULD BE EXTREMELY DIFFICULT AND IMPRACTICABLE, IF NOT IMPOSSIBLE, AS OF THE
SIGNING OF THIS AGREEMENT, TO ASCERTAIN WITH ANY DEGREE OF CERTAINTY THE EXTENT
OF DAMAGES TO SELLER IN THE EVENT OF BUYER'S DEFAULT OR THE AMOUNT OF
COMPENSATION SELLER SHOULD RECEIVE IN THE EVENT THAT THE PURCHASE AND SALE OF
THE PROPERTY PROVIDED IN THIS AGREEMENT DOES NOT CLOSE DUE TO BUYER'S DEFAULT.
ACCORDINGLY, THE PARTIES HEREBY AGREE THAT A REASONABLE ESTIMATE OF SUCH DAMAGES
OR SUCH COMPENSATION, AS THE CASE MAY BE, IS THE AMOUNT OF THE XXXXXXX MONEY
DEPOSIT, NAMELY, $215,000, AND ANY INTEREST EARNED THEREON.
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15.2. THE PARTIES HEREBY AGREE THAT IF BUYER DEFAULTS UNDER THIS AGREEMENT, THEN
SELLER SHALL BE ENTITLED TO RECOVER FROM BUYER THE AMOUNT OF THE XXXXXXX MONEY
DEPOSIT, NAMELY THE SUM OF $215,000, PLUS ADDITIONAL AMOUNTS REQUIRED BY SECTION
3.4.6 ABOVE WITH ALL INTEREST EARNED THEREON, AS LIQUIDATED DAMAGES OR
COMPENSATION, AS THE CASE MAY BE, UNDER THIS AGREEMENT AND SUCH RECOVERY OF
$215,000, WITH ALL INTEREST EARNED THEREON SHALL BE THE SOLE AND EXCLUSIVE
REMEDY OF OR COMPENSATION TO SELLER, AS THE CASE MAY BE, AS A RESULT OF BUYER'S
DEFAULT UNDER THIS AGREEMENT, EXCEPT AS SET FORTH IN THE LAST SENTENCE OF THIS
SECTION 15. NOTWITHSTANDING THE FOREGOING, NOTHING CONTAINED HEREIN SHALL LIMIT
THE REMEDIES SELLER SHALL HAVE TO ENFORCE ANY RIGHTS IT HAS AGAINST BUYER UNDER
THE PROVISIONS OF SECTIONS 3.4, 12 or 18.
/s/DWR
-------------- --------------
Buyer's initials Seller's initials
15.3. In the event of Seller's default hereunder after the satisfaction or
waiver of all conditions precedent set forth in Section 3 hereof, Buyer may
either (i) terminate this Agreement, in which event the Xxxxxxx Money Deposit
shall be immediately refunded to Buyer, or (ii) enforce the specific performance
of this Agreement, including Seller's obligation to transfer ownership of the
Property to Buyer, but in no event will Buyer be entitled to punitive or
consequential damages, if any, resulting from such default.
16. INTEGRATED AGREEMENT; MODIFICATIONS; WAIVERS.
This Agreement constitutes the entire agreement between the parties
hereto with respect to the subject matter hereof and supersedes any and all
prior representations, understandings and agreements, whether written or oral.
No supplement, modification or waiver of any provision of this Agreement shall
be binding unless executed in writing by the party to be bound thereby. No
waiver of any of the provisions of this Agreement shall be deemed or shall
constitute a waiver of any other provision hereof (whether or not similar), nor
shall such waiver constitute a continuing waiver unless otherwise expressly
provided.
17. TIME OF ESSENCE AND HOLIDAYS.
Time is of the essence of each and every provision hereof. If the final
date of any period of time set forth herein occurs on a Saturday, Sunday or
legal holiday, then in such event, the expiration of such period of time shall
be postponed to the next day which is not a Saturday, Sunday or legal holiday.
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18. ATTORNEYS' FEES.
In the event either party brings an action at law or in equity to
enforce or interpret or seek redress for breach of this Agreement, the
prevailing party in such action shall be entitled to its litigation expenses and
reasonable attorneys' and witness fees in addition to all other appropriate
relief, at trial, on appeal, or on any petition for review. The provisions of
this Section 18 shall survive Closing.
19. ASSIGNMENT; INUREMENT.
Either party hereto may assign its respective rights and obligations
hereunder, in whole or in part, without the prior written consent of the other
party hereto, provided that such assignment shall be in writing and a copy of
such assignment shall be delivered promptly to the other party hereto, any such
assignee shall asume all obligations of the assignor arising after the date of
the assignment, and the assignor of such interest shall not be released of
liability hereunder. Any assignment without meeting such conditions shall be
deemed null and void. Subject to and without limiting the preceding two
sentences, this Agreement and every provision hereof shall bind and inure to the
benefit of the parties hereto and their respective heirs, personal
representatives, successors and assigns.
20. GOVERNING LAW.
This Agreement shall be construed and interpreted and the rights of the
parties determined in accordance with the laws of the State of Illinois.
21. COVENANTS OF COOPERATION.
Seller and Buyer each agree to cooperate with each other and to execute
such additional documents and instruments, including supplemental escrow
instructions, as may be reasonably required to consummate the transaction
contemplated hereby.
22. HEADINGS AND CAPTIONS.
The headings and captions of the sections of this Agreement are for
convenience of reference only and shall not affect the meaning or interpretation
of this Agreement or any provision hereof.
23. CONDITION TO EFFECTIVENESS OF AGREEMENT.
This Agreement shall not be binding or effective until properly
executed and delivered by both Seller and Buyer.
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24. GENDER AND NUMBER.
As used in this Agreement, the neuter shall include the feminine and
masculine, the singular shall include the plural, and the plural shall include
the singular, except where expressly provided to the contrary.
25. SEVERABILITY.
In the event that any paragraph, section, sentence, clause or phrase
contained in this Agreement becomes or is held by any court of competent
jurisdiction to be illegal, null or void or against public policy, the remaining
paragraphs, sections, sentences, clauses or phrases contained in this Agreement
shall not be affected thereby.
26. COUNTERPARTS.
This Agreement may be executed in one or more counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same instrument. This Agreement or any counterpart may be executed
and delivered by facsimile transmission with an executed hard copy to follow.
27. EXHIBITS.
All Exhibits attached to, and referenced in this Agreement are hereby
incorporated into, and shall be deemed a part of this Agreement.
28. JOINT AND SEVERAL OBLIGATIONS.
If more than one person or entity is included within the party
designated hereinabove as Buyer, each and all of the obligations imposed upon
such party under this Agreement shall be the joint and several obligations of
each of such persons or entities.
29. EVIDENCE OF DUE AUTHORIZATION.
Each party hereby agrees, within ten (10) days after receipt of a
written request from the other party, to furnish to the other party such
evidence as shall reasonably establish that the execution of this Agreement by
the party furnishing such evidence and the performance by such party of its
obligations hereunder have been duly authorized and that the person or persons
executing this Agreement and any document or instrument pursuant to this
Agreement has been duly authorized and empowered to do so.
30. NO RECOURSE.
Notwithstanding anything to the contrary set forth in this Agreement,
Buyer shall look solely to the assets of Seller for satisfaction of any
liability of Seller in respect hereof and will not seek recourse against the
partners of Seller, or either of them, or their respective officers, directors,
shareholders, employees, agents, or any of them, or any of their personal assets
for such satisfaction.
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31. ROADWAY IMPROVEMENTS; MUTUAL RELEASE
Buyer and Seller are parties to that Purchase/Sale Agreement dated as
of February 12, 1996, pursuant to which Buyer purchased from Seller the property
known as Parcels 72, 73, 80 and 81 within Continental Executive Xxxxx (the "CDW
Contract"). Part of the consideration for the purchase and sale of the Property
pursuant to this Agreement is a mutual release of Buyer and Seller from the
obligation to construct certain Roadway Improvements and other obligations as
described in Section 18 and any related provisions of the CDW Contract.
Accordingly, upon Closing under this Agreement, Buyer and Seller agree that the
obligations of the parties in Section 18 and any related provisions of the CDW
Contract shall terminate and be of no further force and effect, and the parties
shall be deemed to have released each other from all such obligations. The
parties agree that the CDW Contract is hereby modified by the foregoing
termination and release and agree to execute such additional documents and
instruments as either may reasonably require to further evidence such
modification and release. In addition, effective at Closing, Buyer expressly
assumes and agrees to satisfy, at its sole expense, any requirements for
development on the Property imposed by the Village of Xxxxxx Hills or other
governmental agency with jurisdiction, including without limitation the
requirements under that planned unit development approved by the Village of
Xxxxxx Hills as Ordinance No. 639 dated March 10, 1988 and any other ordinance
or resolution of the Village of Xxxxxx Hills affecting the Property, and
including without limitation the construction of Parkeview Drive and/or a pond
on that portion of the Property known as Parcel 90 (also described as Xxx 0,
Xxxxxxxxxxx Xxxxxxxxx Xxxxx Xxxxxxxxxxxxx Xx. 00) and any other storm water
management requirements for the Property. This provision shall survive Closing
under this Agreement.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
the respective dates set opposite their signatures below, but this Agreement on
behalf of such party shall be deemed to have been dated as of the date first
above written.
SELLER:
CONTINENTAL EXECUTIVE XXXXX, L.L.C.,
an Illinois limited liability company
By: THE XXXXXXXX/XXXXXX INVESTMENT
GROUP, a Delaware joint venture
By: PAC/SIB L.L.C., a Washington limited
liability company, Managing General Partner
By: Pacific Realty Associates, L.P.,
a Delaware limited partnership,
Managing Member
By: PacTrust Realty, Inc.,
a Delaware corporation,
General Partner
Date: 12/16 , 1997 By: /s/Xxxxx X. Xxxxx
------------ ----------------------
Name: Xxxxx X Xxxxx
----------------------
Its: Vice President
----------------------
BUYER:
CDW COMPUTER CENTERS, INC.,
an Illinois corporation
Date: , 1997 By /s/Xxxxxxx X. Xxxxxx
------------ ---------------------------
Xxxxxxx X. Xxxxxx
---------------------------
(typed or printed name)
Its:
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