Agreement of Purchase and Sale

Exhibit 10.1

 



THIS (this “Agreement”) ismade and entered into as of this 26th day of June, 2006 (the “ContractDate”) by and between FIRST INDUSTRIALDEVELOPMENT SERVICES, INC., a Maryland corporation Seller”), and SIMPSON MANUFACTURING CO., INC., a Delaware corporation (“Purchaser”).

1.             SALE.

Seller agrees to selland convey to Purchaser, and Purchaser agrees to purchase from Seller, for thepurchase price set forth below and on the terms and conditions set forth inthis Agreement, all of the following:

(a)           that certain tract or parcel of landcomprised of approximately 19.46 acres, together with all rights, easements andinterests appurtenant thereto including, but not limited to, any streets orother public ways adjacent to said tract or parcel and any water or mineralrights owned by, or leased to, Seller, which is described on Exhibit A attached hereto andmade a part hereof (the “Land”);

(b)           all of the buildings, structures,fixtures and other improvements located on the Land, including, but not limitedto the building commonly known as 375 Belvedere Drive, Gallatin, Tennesseecomprised of approximately 194,113 square feet (the “Building”),and all other on-site structures, systems, and utilities associated with thebuilding (all such improvements being referred to herein as the “Improvements”), but excluding improvements, if any, owned byany tenant(s) located therein;

(c)           Seller’s right, title and interest inall leases and other agreements to occupy all or any portion of any or all ofthe Land and the Improvements that are in effect on the Contract Date or intowhich Seller enters prior to Closing (as hereinafter defined) pursuant to theterms of this Agreement (collectively, the “Leases”);

(d)           to the extent transferable, all ofSeller’s right, title and interest (if any) in and to all intangible assets ofany nature relating to any or all of the Land and the Improvements, including,but not limited to, (i) all guaranties and warranties issued with respectto the Improvements; (ii) all plans and specifications, drawings andprints describing the Improvements; (iii) trademarks or trade namesassociated with the Improvements; and (iv) all licenses, permits,approvals, certificates of occupancy, dedications, subdivision maps andentitlements now or hereafter issued, approved or granted by any governmentalauthority in connection with the Land or the Improvements (collectively, the “Intangibles”).

The Land, the Improvements, the Leases and theIntangibles are hereinafter referred to collectively as the “Property

2.             PURCHASE PRICE.

The total purchase priceto be paid to Seller by Purchaser for the Property shall be FIVE MILLION FIVEHUNDRED THOUSAND AND NO/100 DOLLARS ($5,500,000.00) (the “PurchasePrice”), plus or minus prorations as hereinafter provided.

3.             CLOSING.



The purchase and salecontemplated herein shall be consummated at a closing (“Closing”)to take place by mail or at the offices of the Title Company (defined below). TheClosing shall occur on or before the date that is five (5) business daysafter the Approval Date (the, “Closing Date”).

4.             DEPOSIT.

Simultaneously with theexecution and delivery of this Agreement by Purchaser and Seller, Purchasershall deposit, as its initial earnest money deposit, the sum of One HundredThousand and No/100 Dollars ($100,000.00) (the “InitialEarnest Money”) in an escrow with theTitle Company (the “Escrow”)pursuant to escrow instructions in the form attached hereto as Exhibit B. Purchaser shalldeposit the sum of One Hundred Thousand and No/100 Dollars ($100,000.00) (the “Additional Earnest Money”) as its additional earnest moneyin escrow with Title Company immediately upon the expiration of the ApprovalDate (as defined in Section 6.1). The Initial Earnest Money, theAdditional Earnest Money and all interest earned thereon are hereincollectively referred to as the “Deposit.”  Except as otherwise expressly set forthherein, the Deposit shall be applied against the Purchase Price at Closing.

5.             SELLER’SDELIVERIES.

Prior to the executionof this Agreement, Seller has, to Seller’s knowledge, delivered or madeavailable to Purchasers, or within five days after execution of this AgreementSeller shall, to Seller’s knowledge, deliver or make available to Purchaser inthe Nashville office of First Industrial Realty Trust, Inc., a Marylandcorporation and an affiliate of Seller (“FR”), all ofthe documents and agreements described on Exhibit Cattached hereto and made a part hereof that are in Seller’s possession (the “Documents”). From the date hereof until the Closing Date,Seller shall continue to make available to Purchaser or its agents forinspection in the Nashville office of FR, all, to Seller’s knowledge, of theDocuments in Seller’s possession. The Documents that are furnished or madeavailable to Purchaser pursuant to this Section 5are being furnished or made available to Purchaser for informationpurposes only and without any representation or warranty by Seller with respectthereto, express or implied, except as may otherwise be expressly set forth inthis Section 5 orSection 8.1below, in either case as limited by Sections 8.2and 8.3 below.

6.             INSPECTIONPERIOD.

6.1           Basic Project Inspection. Atall times prior to Closing, including times following the “Inspection Period”(which Inspection Period is defined to be the period commencing on the ContractDate and continuing through and including July 26, 2006), Purchaser andPurchaser’s employees, third party consultants, lenders, engineers, accountantsand attorneys (collectively, the “Purchaser’sRepresentatives”) shall be entitled to conduct a “Basic Project Inspection” of the Property, which willinclude the rights to: (i) enter upon the Land and Improvements, atreasonable times, to perform inspections and tests of the Land and the Improvements,(ii) make investigations with regard to the environmental condition of theLand and the Improvements and the compliance by the Land and the Improvementswith all applicable laws, ordinances, rules and regulations, (iii) reviewthe Leases affecting the Property, and (iv) interview any tenant at theImprovements with respect to its current and prospective occupancy of theImprovements as long

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as a representative of Seller is in attendancethroughout such interview, which representatives shall be made reasonablyavailable for such purposes. Purchaser shall provide not less than two (2) businessdays’ prior notice to Seller before conducting any investigations, study,interview or test to or at the Land and the Improvements. If Purchaserdetermines that the results of any inspection, test, examination or review donot meet Purchaser’s criteria (which criteria may include the requirements ofPurchaser’s lenders and investors), in its sole discretion, for the purchase,financing or operation of the Property in the manner contemplated by Purchaser,then Purchaser may terminate this Agreement. This Agreement shall automaticallyterminate unless Purchaser provides Seller with written notice waivingPurchaser’s right to terminate this Agreement pursuant to this Section 6.1 prior to the of the Inspection Period (the “Approval Date”). If this Agreement terminates pursuant tothe foregoing provisions of this paragraph, then neither party shall have anyfurther liabilities or obligations hereunder, except for those liabilities andobligations that expressly survive a termination of this Agreement and theDeposit shall be returned to Purchaser.

6.2           Purchaser’s Undertaking. Purchaserhereby covenants and agrees that it shall cause all studies, investigations andinspections performed at the Land or the Improvements to be performed in amanner that does not unreasonably disturb or disrupt the tenancies or businessoperations of the tenant(s) at the Improvements. Purchaser shall notconduct (or cause to be conducted) any physically intrusive investigation,examination or study of the Land or the Improvements (any such investigation,examination or study, an “Intrusive Investigation”)as part of its Basic Project Inspection or otherwise without the prior writtenconsent of Seller, which consent shall not be unreasonably withheld. Purchaserand Purchaser’s Representatives shall, in performing its Basic ProjectInspection, comply with any and all applicable laws, ordinances, rules, andregulations. Except to the extent required by any applicable statute, law,regulation or governmental authority in its capacity as a contract purchaser(i.e. not an owner), neither Purchaser nor Purchaser’s Representatives shallreport the results of the Basic Project Inspection or any IntrusiveInvestigation to any governmental or quasi-governmental authority under anycircumstances without obtaining Seller’s express written consent, which consentmay be withheld in Seller’s sole discretion. If this transaction fails to closefor any reason other than due to Seller’s default, Purchaser shall provideSeller with copies of any and all final, third party reports prepared on behalfof Purchaser as part of the Basic Project Inspection without any representationor warranty regarding the accuracy thereof. Purchaser and Purchaser’sRepresentatives shall: (a) maintain comprehensive general liability(occurrence) insurance in an amount of not less than $2,000,000 covering anyaccident arising in connection with the presence of Purchaser and Purchaser’sRepresentatives at the Land and the Improvements while performing anyinvestigations, examinations or studies thereon, and shall deliver acertificate of insurance (in form and substance reasonably satisfactory toSeller), naming Seller as an additional insured thereunder, verifying theexistence of such coverage to Seller prior to entry upon the Land or theImprovements; and (b) promptly pay when due any third party costsassociated with its Basic Project Inspection. Purchaser shall, at Purchaser’ssole cost, repair any damage to the Land or the Improvements resulting from theBasic Project Inspection or any Intrusive Investigation, and, to the extentPurchaser or Purchaser’s Representatives alter, modify, disturb or change thecondition of the Land or the Improvements as part of the Basic ProjectInspection, any Intrusive investigation or otherwise, Purchaser shall, atPurchaser’s sole cost, restore the Land and the Improvements to the conditionin which the same were found before such alteration, modification, disturbanceor change. Purchaser hereby indemnifies, protects,

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defends and holds Seller, Seller’s affiliates, theirrespective partners, shareholders, officers and directors, and all of theirrespective successors and assigns (collectively, the “SellerIndemnified Parties”) harmless from and against any and all losses,damages, claims, causes of action, judgments, damages, costs and expenses(including reasonable attorneys’ fees and court costs) (collectively, “Losses”) that Seller or any Seller Indemnified Party suffersor incurs as a result of, or in connection with Purchaser’s Basic ProjectInspection, any Intrusive Investigation or Purchaser’s or Purchaser’sRepresentatives entry upon the Land or the Improvements hereunder. Purchaser’sundertakings pursuant to this Section 6.2shall indefinitely survive a termination of this Agreement or the Closing andshall not be merged into any instrument of conveyance delivered at Closing.

6.3           Confidentiality. Purchaseragrees to use reasonable efforts to maintain in confidence the information andterms contained in the Evaluation Materials (defined below) and this Agreement(collectively, the “Transaction Information”).Purchaser shall not disclose all or any portion of the Transaction Informationto any person or entity and shall maintain the Transaction Information in thestrictest confidence; provided, however, that Purchaser may disclose theTransaction Information:  (a) toPurchaser’s Representatives to the extent that Purchaser’s Representativesreasonably need to know such Transaction Information in order to assist, andperform services on behalf of, Purchaser; (b) on not less than two (2) businessdays prior written notice, to the extent required by any applicable statute,law, regulation or governmental authority; (c) in connection with anylitigation that may arise between the parties in connection with thetransactions contemplated by this Agreement; and (d) to the extent thatany Transaction Information is generally available to the public through other sources.Purchaser shall advise Purchaser’s Representatives of the provisions of this Section 6.3 and cause such parties to maintain theTransaction Information as confidential information and otherwise comply withthe terms of this Section 6.3.For purposes of this Agreement, the term “Evaluation Materials”shall mean the Documents and any other materials or information delivered ormade available by Seller or its agents to Purchaser or Purchaser’sRepresentatives together with (i) all analyses, compilations, studies orother documents prepared by (or on behalf of) Purchaser, which contain orotherwise reflect such information or materials and (ii) the results ofany studies, analysis or investigation of the Property undertaken by or onbehalf of Purchaser. Purchaser agrees that the Evaluation Materials shall beused solely for purposes of evaluating the acquisition and potential ownershipand operation of the Property. Notwithstanding anything contained herein to thecontrary, it is understood and agreed that money damages would not be asufficient remedy for any breach of this Section 6.3by Purchaser or Purchaser’s Representatives and that Seller shall be entitledto specific performance and injunctive or other equitable relief as a remedyfor any such breach of this Section 6.3by Purchaser or Purchaser’s Representatives. Purchaser further agrees to waiveany requirement for the security or posting of any bond in connection with suchremedy. Such remedy shall not be deemed to be the exclusive remedy for breachof this Section 6.3 but shall be inaddition to all other remedies available at law or in equity to Seller. In theevent this Agreement is terminated for any reason whatsoever, Purchaser shallpromptly (and in any event within three (3) business days after theeffective date of termination) return to Seller the Documents and any and allcopies of the Documents and destroy any and all other Evaluation Materials. Theundertakings of Purchaser pursuant to this Section 6.3shall survive the termination of this Agreement.

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6.4           Seller’s Convenants. Duringthe Inspection Period and until the Closing Date, Seller shall, at noadditional third party cost or expense to Seller, reasonably cooperate withPurchaser in Purchaser’s efforts to obtain any permits, approvals, reviews,title insurance, or inspections by governmental agencies that Purchaser arerequired to obtain during the Inspection Period and shall, as owner of theProperty, execute reasonable documents that are reasonably necessary to obtainsuch matters.

7.             TITLE AND SURVEYMATTERS.

7.1           Conveyance of Title. AtClosing, Seller agrees to deliver to Purchaser a special warranty deed (the “Deed”), inrecordable form, conveying the Land and the Improvements to Purchaser, free andclear of all liens, claims and encumbrances except for the following items (the“Permitted Exceptions”):  (1) taxesnot yet due and payable; (2) those matters that may be approved (or deemedapproved) by Purchaser pursuant to Section 7.4 or Section 10.1;(3) the rights of tenants, as tenants only, pursuant to the Leases; (4) liensand encumbrances arising out of any act of Purchaser or Purchaser’sRepresentatives; and (5) local, state and federal laws, ordinances, rules andregulations, including, but not limited to, zoning ordinances (those liens,claims, encumbrances and matters referred to in items (1) and (4) above,the “Existing Permitted Exceptions”).

7.2           Title Commitment. Within ten (10) daysafter the Contract Date, Seller shall, at Seller’s sole cost, deliver toPurchaser a commitment (the “Title Commitment”) issued by First American TitleInsurance Company, 30 N. LaSalle, Suite 310, Chicago, Illinois, 60603Attn: Dick Seidel (the “Title Company”), for an owner’s title insurance policywith respect to the Land, in the full amount of the Purchase Price, togetherwith copies of all recorded documents evidencing title exceptions raised in “ScheduleB” of such Title Commitment. The date on which Purchaser has received the TitleCommitment is referred to as the “Commitment Delivery Date.”  During the Inspection Period, Purchaser shallnegotiate an ALTA extended coverage proforma title insurance policy (includingsuch endorsements as may be required by Purchaser) with Title Company (the “Title Policy”). It shall be a condition precedent toPurchaser’s obligation to proceed to Closing that, at Closing, the TitleCompany shall issue the Title Policy (or have given Purchaser at Closing anirrevocable and unconditional commitment in form reasonably satisfactory toPurchaser to issue such Title Policy after Closing) insuring, in the fullamount of the Purchase Price, Purchaser as the fee simple owner of the Land andthe Improvements, subject only to the Permitted Exceptions. If the foregoingcondition precedent fails for any reason other than the actions or omissions ofPurchaser, Purchaser may elect to either (i) proceed to Closing and waivethe failure of such condition or (ii) terminate this Agreement by deliveryof written notice to Seller on or prior to Closing, in which event (i) theDeposit shall be returned to Purchaser, and (ii) neither party shall haveany further liabilities or obligations hereunder except for those liabilitiesand obligations that expressly survive a termination of this Agreement.

7.3           Survey. Seller has deliveredor made available to Purchaser a copy of an existing survey of the Land and theImprovements (the “Survey”) together with the Documents. Purchaser may obtain,at Purchaser’s cost, obtain an update of the Survey (an “Updated Survey”)certified to Purchaser and its lenders.

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7.4           Defects and Cure.

7.4.1        Purchaser’s Defect Notices. Purchasershall accept title to the Land and the Improvements subject to all of theExisting Permitted Exceptions. If the Updated Survey or the Title Commitmentdiscloses exceptions to title other than the Existing Permitted Exceptions(such exceptions to title being referred to as the “DisclosedExceptions”), then Purchaser shall have until 5:00 p.m.(Chicago time) on the date that is five (5) business days after theCommitment Delivery Date, within which to notify Seller of any such DisclosedExceptions to which Purchaser reasonably objects (any such notice, a “Defect Notice”). Any exceptions to title (other than theExisting Permitted Exceptions and the Disclosed Exceptions) that arise betweenthe effective date of the Title Commitment or the Updated Survey, as the casemay be, and the Closing are referred to herein as “New Defects.”  Purchaser shall have three (3) businessdays after its receipt of written notice or updated title evidence reflectingany New Defects within which to notify Seller in writing of any such NewDefects to which Purchaser objects. Those Disclosed Exceptions or New Defects,as the case may be, to which Purchaser does not object in a Defect Notice givenwithin the applicable periods set forth above shall be deemed PermittedExceptions.

7.4.2        Seller’s Response Notices. Sellershall be obligated to cure and remove (or procure title insurance over on termsreasonably acceptable to Purchaser) all of the following classes of New Defectsand Disclosed Exceptions (“Mandatory Cure Items”), if any:  (i) the liens of any mortgage, trustdeed or deed of trust evidencing an indebtedness owed by Seller; (ii) taxliens for delinquent ad valorem real estate taxes; (iii) mechanics lienspursuant to a written agreement either between (x) the claimant (the “Contract Claimant”) and Seller or its employees, officers ormanaging agents (the “Seller Parties”)or (y) the Contract Claimant and any other contractor, materialman orsupplier with which Seller or the Seller Parties have a written agreement; and (iv) broker’sliens pursuant to a written agreement between the broker and Seller or anySeller Parties. Seller may elect, in its sole discretion, to cure and removeany Disclosed Exception or New Defect (which are not Mandatory Cure Items)identified by Purchaser in a Defect Notice by delivering written notice toPurchaser (a “Seller’s Response Notice”) indicating that Seller has elected tocure and remove any such matters (any such matters that Seller elects to cureand remove, “Seller Cure Items”) not later than three (3) business daysafter Seller’s receipt of the applicable Defect Notice (and, to the extentClosing is scheduled to occur prior to such date, Closing shall be extended untilone (1) business day after the expiration of such period). Seller shallhave until Closing to cure and remove (or procure title insurance reasonablyacceptable to Purchaser over) any Seller Cure Items. If Seller fails to providea Seller’s Response Notice, Seller shall be deemed to have delivered a Seller’sResponse Notice electing not to cure and remove any New Defects or DisclosedExceptions (which are not Mandatory Cure Items) identified by Purchaser in theapplicable Defect Notice. If Seller elects (or is deemed to elect) not to cureand remove any Disclosed Exceptions or New Defects, Purchaser may elect, in itssole discretion and as its sole remedy hereunder, at law or in equity, bydelivery of written notice to Seller not later than three (3) businessdays after Purchaser’s receipt (or deemed receipt) of a Seller’s ResponseNotice (and, to the extent Closing is scheduled to occur prior to such date,Closing shall be extended until one (1) business day after the expirationof such period), to either (a) proceed to Closing and

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accept title to the Landand the Improvements, subject to those Disclosed Exceptions or New Defects, asthe case may be, that Seller has refused (or is deemed to have refused) to cureor remove, without deduction or offset against the Purchase Price and with suchDisclosed Exceptions or New Defects in that case being deemed to be PermittedExceptions or (b) terminate this Agreement, in which event the Depositshall be returned to Purchaser and neither party shall have any furtherliabilities or obligations pursuant to this Agreement except those liabilitiesor obligations that expressly survive termination of this Agreement. IfPurchaser fails to timely notify Seller of its election pursuant to thepreceding sentence, Purchaser shall be deemed to have elected alternative (b).

7.5           Title Cure Provisions. If, onor prior to Closing, Seller fails to cure and remove (or procure titleinsurance over on terms reasonably acceptable to Purchaser) each DisclosedException or New Defect (other than Mandatory Cure Items), as the case may be,that Seller agreed to cure (pursuant to a Seller’s Response Notice) as SellerCure Items, Purchaser may, at itsoption and as its sole remedy hereunder, at law or in equity, either (i) terminatethis Agreement by written notice to Seller delivered on or prior to Closing, inwhich event (a) the Deposit shall be returned to Purchaser, and (b) thisAgreement, without further action of the parties, shall become null and voidand neither party shall have any further liabilities or obligations under thisAgreement except for those liabilities or obligations which expressly survivetermination of this Agreement; or (ii) elect to consummate the Closing andaccept title to the Land and Improvements subject to all those DisclosedExceptions or New Defects that Seller has failed to cure or remove (in whichevent, all such exceptions to title shall be deemed Permitted Exceptions),without deduction or offset against the Purchase Price or (iii) declareSeller in Default (as hereinafter defined) hereunder and exercise its rightspursuant to Section 17.1 hereof. IfPurchaser fails to make either such election, Purchaser shall be deemed to haveelected option (ii). If Seller fails to cure and remove (whether by endorsementor otherwise) any Mandatory Cure Items on or prior to Closing, Purchaser may,at its option and by delivery of written notice to Seller on or prior toClosing, either (A) terminate this Agreement, in which event the Depositshall be returned to Purchaser and this Agreement, without further action ofthe parties, shall become null and void and neither party shall have anyfurther liabilities or obligations under this Agreement except for thoseliabilities and obligations which expressly survive a termination of thisAgreement, (B) proceed to closewith title to the Land and Improvements as it then is with the right to deductfrom the Purchase Price the liquidated amount reasonably necessary to cure andremove (by endorsement or otherwise), as reasonably determined by Purchaserthose Mandatory Cure Items that Seller fails to cure and remove, or (C) declareSeller in Default hereunder and exercise its rights pursuant to Section 17.1 hereof.

8.             SELLER’SCOVENANTS, REPRESENTATIONS AND WARRANTIES.

8.1           Seller’s Representations. Sellerrepresents and warrants to Purchaser that the following matters are true as ofthe Contract Date, in all material respects, except as may otherwise beexpressly provided in the Documents.

8.1.1        Litigation. There is no pendingor, to Seller’s knowledge, threatened litigation or governmental proceedingsagainst Seller in connection with the Property that would materially andadversely affect the Property.

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8.1.2        United States Person. Seller is a“United States Person” within the meaning of Section 1445(f)(3) ofthe Internal Revenue Code of 1986, as amended, and shall execute and deliver an“Entity Transferor” certification at Closing.

8.1.3        Condemnation. There is no pendingor to Seller’s knowledge, contemplated condemnation or other governmentaltaking proceedings affecting all or any part of the Land and the Improvements.

8.1.4        Environmental Matters. Seller hasreceived no written notification from any governmental authority that (x) allor some portion of the Land and the Improvements violates any EnvironmentalLaws (as hereinafter defined); or (y) any Hazardous Substances have beenstored or generated at, released or discharged from or are present upon theLand and the Improvements, except in the ordinary course of business and inaccordance with all Environmental Laws. As used herein, “Hazardous Substances”means all hazardous or toxic materials, substances, pollutants, contaminants,or wastes currently identified as a hazardous substance or waste in theComprehensive Environmental Response, Compensation and Liability Act of 1980(commonly known as “CERCLA”), as amended, the Superfund Amendments andReauthorization Act (commonly known as “SARA”), the Resource Conservation andRecovery Act (commonly known as “RCRA”), or any other federal, state or locallegislation or ordinances applicable to the Land or the Improvements. As usedherein, the term “Environmental Laws” shall mean all federal, state and localenvironmental laws, rules, statutes, directives, binding writteninterpretations, binding written policies, ordinances and regulations issued byany governmental authority and in effect as of the date of this Agreement withrespect to or which otherwise pertain to or affect the Land or theImprovements, or any portion thereof, the use, ownership, occupancy oroperation of the Land or the Improvements, or any portion thereof, or any ownerof the Land, and as same have been amended, modified or supplemented from timeto time prior to the date of this Agreement, including but not limited to CERCLA,the Hazardous Substances Transportation Act (49 U.S.C. § 1802et seq.), RCRA, the Water Pollution Control Act (33 U.S.C.§ 1251 et seq.), the Safe Drinking Water Act (42 U.S.C.§ 300f et seq.), the Clean Air Act (42 U.S.C. § 7401et seq.), the Solid Waste Disposal Act (42 U.S.C. § 6901et seq.), the Toxic Substances Control Act (15 U.S.C. § 2601et seq.), the Emergency Planning and Community Right-to-Know Act of 1986(42 U.S.C. § 11001 et seq.), the Radon and Indoor Air QualityResearch Act (42 U.S.C. § 7401 note, et seq.), SARA, comparablestate and local laws, and any and all rules and regulations which havebecome effective prior to the date of this Agreement under any and all of theaforementioned laws.

8.1.5        Due Authorization; Conflict. Selleris a corporation, duly organized, validly existing and in good standing underthe laws of the State of Maryland, and is qualified to do business in and is ingood standing under the laws of the State of Tennessee. Seller has full powerto execute, deliver and carry out the terms and provisions of this Agreementand each of the other agreements, instruments and documents herein required tobe made or delivered by Seller pursuant hereto, and has taken, or will takeprior to Closing, all necessary action to authorize the execution, delivery andperformance of this Agreement and such other agreements, instruments anddocuments. The individuals executing this Agreement and all other agreements,instruments and documents herein required to be

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made or delivered by Sellerpursuant hereto on behalf of Seller are and shall be duly authorized to signthe same on Seller’s behalf and to bind Seller thereto. The execution anddelivery of, and consummation of the transactions contemplated by, thisAgreement are not prohibited by, and will not conflict with, constitute groundsfor termination of, or result in the breach of, any of the agreements orinstruments to which Seller is now party or by which it is bound, or any order,rule or regulation of any court or other governmental agency or official.

8.1.6        Enforceability. This Agreementhas been, and each and all of the other agreements, instruments and documentsherein required to be made by Seller pursuant hereto have been, or on theClosing Date will have been, executed by or on behalf of Seller, and when soexecuted, are and shall be legal, valid and binding obligations of Sellerenforceable against Seller in accordance with their respective terms, subjectto applicable bankruptcy, insolvency, reorganization, moratorium and othersimilar laws affecting the rights of creditors generally and, as toenforceability, the general principles of equity (regardless of whetherenforcement is sought in a proceeding in equity or at law).

8.1.7        Leases; Tenant Improvements. Copiesof all Leases in effect as of the Contract Date (the “ExistingLeases”), and all amendments thereto and guaranties thereof, if any,have been furnished by Seller to Purchaser and the copies so provided are trueand complete. The Existing Leases have not been amended, modified or terminated(except for any amendments delivered to Purchaser pursuant to the precedingsentence). To Seller’s knowledge, the Existing Leases are presently in fullforce and effect.

8.1.8        Contracts; Other Agreements. Selleris not party to any service contracts, management contracts or other comparableagreements that will be binding upon the Land and the Improvements afterClosing.

8.1.9        Bankruptcy Matters. Seller hasnot made a general assignment for the benefit of creditors, filed any voluntarypetition in bankruptcy or suffered the filing of an involuntary petition by itscreditors, suffered the appointment of a receiver to take possession ofsubstantially all of its assets, suffered the attachment or other judicialseizure of substantially all of its assets, admitted its inability to pay itsdebts as they come due, or made an offer of settlement, extension orcomposition to its creditors generally.

8.1.10      No Brokers. Seller has delivered ormade available as Documents true and complete copies of any and all listingagreements, brokerage agreements, Leases or other comparable agreements(collectively, “Brokerage Agreements”) into which Seller has entered inconnection with the Property, and pursuant to which a leasing commission orfinder’s fee may be payable subsequent to Closing.

8.1.11      Employees. Seller has no employeesat the Property.

8.1.12      Notices of Violations. Seller hasnot received from any government or quasi-governmental authority requiring orrequesting Seller to correct any condition with respect to the Property whichhas not been corrected or the performance of any work or alterations withrespect to the Property which has not been performed.

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8.1.13      Documents. Seller has delivered toPurchaser all of the Documents in its possession or reasonable control and theDocuments are true, correct and complete copies of the Documents.

8.1.14      Personal Property. Seller owns nopersonal property at the Property.

8.1.15      Patriot Act Compliance. Seller isnot acting, directly or indirectly for, or on behalf of, any person, group,entity or nation named by any Executive Order (including the September 24,2001, Executive Order Blocking Property and Prohibiting Transactions WithPersons Who Commit, Threaten to Commit, or Support Terrorism) or the UnitedStates Treasury Department as a terrorist, “Specially Designated National andBlocked Person,” or other banned or blocked person, entity, or nation pursuantto any Law that is enforced or administered by the Office of Foreign AssetsControl, and is not engaging in this transaction, directly or indirectly, onbehalf of, or instigating or facilitating this transaction, directly orindirectly, on behalf of, any such person, group, entity or nation.

8.1.16      1031 Exchange. Seller recognizesand understands that this transaction may be part of a contemplated “like kind”exchange for Purchaser under §1031 of the Internal Revenue Code (“Purchaser’s Exchange”). As such,Seller agrees to reasonably cooperate with Purchaser in effectuating Purchaser’sExchange, which cooperation may include the execution of documents and thetaking of other reasonable action, as is necessary in the opinion of Purchaser,to accomplish Purchaser’s Exchange; provided, however, that Seller shall not berequired to assume any additional expense or liability in connection with, oras part of its cooperation with, Purchaser’s Exchange or to agree to anyextension of the Closing Date beyond the date specified in Section 3. The covenantcontained in this Section 8.1.12 shall survive the Closingand shall not be merged into any instrument of conveyance delivered at Closing.

8.2           Seller’s Knowledge. Allreferences in this Agreement to “Seller’s knowledge,” “Seller’s actualknowledge” or words of similar import shall refer only to the actual (as opposedto deemed, imputed or constructive) knowledge of Steve Preston and SteveJanowiak without inquiry and, notwithstanding any fact or circumstance to thecontrary, shall not be construed to refer to the knowledge of any other personor entity. Seller represents and warrants to Purchaser that Steve Preston andSteve Janowiak or those persons who are affiliated with Seller who are in aposition to have actual knowledge concerning the substantive matters set forthin this Section 8.

8.3           Limitations. The representationsand warranties of Seller to Purchaser contained in Section 8.1hereof, as modified by the Closing Date Certificate (as hereinafterdefined in Section 12.13) (the “Seller Representations”), shall survive the Closing Date andthe delivery of the Deed for a period of twelve (12) months. No claim for abreach of any Seller Representation, or the failure or default of a covenant oragreement of Seller that survives Closing, shall be actionable or payableunless (a) the breach in question results from, or is based on, acondition, state of facts or other matter which was not actually disclosed to,or actually known by, Purchaser prior to Closing, (b) the valid claims forall such breaches collectively aggregate more than Twenty-Five Thousand and No/100Dollars ($25,000), in which event the full amount of such claims shall beactionable, and (c) written notice containing a description of

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the specific nature of such breach shall have beendelivered by Purchaser to Seller prior to the expiration of said twelve (12)month survival period, and an action with respect to such breach(es) shall havebeen commenced by Purchaser against Seller within eighteen (18) months afterClosing. Notwithstanding anything contained herein to the contrary, the maximumamount that Purchaser shall be entitled to collect from Seller in connectionwith all suits, litigation or administrative proceedings resulting from allbreaches by Seller of any Seller Representations or any covenants of Seller(expressly excluding fraud of Seller) shall in no event exceed $200,000 in theaggregate plus costs of collection, attorney fees, court costs and consultants.Notwithstanding anything to the contrary contained herein, if Purchaser isnotified in any Document, or in writing by Seller, or otherwise obtains actual(as opposed to deemed, imputed or constructive) knowledge, that any SellerRepresentation made by Seller is not true or correct as of the Contract Date,or that such Seller Representation is not true or correct on or before the Closing,or is notified in any Document, or in writing by Seller, or otherwise obtainsactual (as opposed to deemed, imputed or constructive) knowledge that Sellerhas failed to perform any covenant and agreement herein contained, andPurchaser shall nevertheless acquire the Property notwithstanding such fact,Purchaser shall not be entitled to commence any action after Closing to recoverdamages from Seller due to such Seller Representation(s) failing to betrue or correct (and Purchaser shall not be entitled to rely on such SellerRepresentation) or such covenant(s) and agreement(s) having failed tobe performed by Seller.

8.4           Representation Condition. Itshall be a condition precedent to Purchaser’s obligation to proceed to Closingthat all of the Seller Representations are true and correct in all materialrespects as of the Closing Date (the “Representation Condition”). Notwithstandinganything contained herein to the contrary, if any Seller Representation isuntrue or inaccurate in any material respect and Purchaser becomes aware ofsuch untruth or inaccuracy prior to Closing, Purchaser may elect, in its solediscretion and as its sole remedy hereunder, at law or in equity, either to (i) terminatethis Agreement by delivery of written notice to Seller on or prior to Closing(or the Approval Date to the extent Purchaser becomes aware of such untruth orinaccuracy on or prior to the Approval Date), whereupon the Deposit shall bepromptly returned to Purchaser and neither party shall have any furtherliability hereunder, except for those liabilities that expressly survive atermination of this Agreement; or (ii) proceed to Closing and accept theuntruth or inaccuracy of such Seller Representation with no further right toterminate the Agreement (or pursue any other right or remedy) on the basis ofthe untruth or inaccuracy thereof.

9.             PURCHASER’S COVENANTS ANDREPRESENTATIONS.

Effectiveas of the execution of this Agreement, Purchaser hereby covenants with Seller,and represents and warrants to Seller, as follows:

9.1           1031 Exchange. Purchaserrecognizes and understands that this transaction may be part of a contemplated “likekind” exchange for Seller under §1031 of the Internal Revenue Code (“Seller’s Exchange”). As such,Purchaser agrees to cooperate with Seller in effectuating Seller’s Exchange,which cooperation may include the execution of documents and the taking ofother reasonable action, as is necessary in the opinion of Seller, toaccomplish Seller’s Exchange; provided, however, that Purchaser shall not berequired to assume any additional expense or liability in connection with, oras part of its cooperation with, Seller’s Exchange or to agree to

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any extension of the Closing Date beyond the datespecified in Section 3. The covenant contained in thisSection 9.1shall survive the Closing and shall not be merged into any instrument ofconveyance delivered at Closing.

9.2           Due Authorization. As of theContract Date, Purchaser is a Delaware corporation duly organized, validlyexisting and in good standing under the laws of the State of Delaware.Purchaser has full power to execute, deliver and carry out the terms andprovisions of this Agreement and each of the other agreements, instruments anddocuments herein required to be made or delivered by Purchaser pursuant hereto,and has taken all necessary action to authorize the execution, delivery andperformance of this Agreement and such other agreements, instruments anddocuments. The individuals executing this Agreement and all other agreements,instruments and documents herein required to be made or delivered by Purchaserpursuant hereto on behalf of Purchaser are and shall be duly authorized to signthe same on Purchaser’s behalf and to bind Purchaser thereto.

9.3           Enforceability. This Agreementhas been, and each and all of the other agreements, instruments and documentsherein required to be made by Purchaser pursuant hereto have been, or on theClosing Date will have been, executed by Purchaser or on behalf of Purchaser,and when so executed, are and shall be legal, valid, and binding obligations ofPurchaser enforceable against Purchaser in accordance with their respectiveterms, subject to applicable bankruptcy, insolvency, reorganization,moratorium, and other similar laws affecting the rights of creditors generallyand, as to enforceability, the general principles of equity (regardless ofwhether enforcement is sought in a proceeding in equity or at law).

9.4           No Conflict. The execution anddelivery of, and consummation of the transactions contemplated by thisAgreement is not prohibited by, and will not conflict with, constitute groundsfor termination of, or result in the breach of any of the agreements orinstruments to which Purchaser is now party or by which it is bound, or anyorder, rule or regulation of any court or other governmental agency orofficial.

9.5           Bankruptcy Matters. Purchaserhas not made a general assignment for the benefit of creditors, filed anyvoluntary petition in bankruptcy or suffered the filing of an involuntarypetition by its creditors, suffered the appointment of a receiver to takepossession of substantially all of its assets, suffered the attachment or otherjudicial seizure of substantially all of its assets, admitted its inability topay its debts as they come due, or made an offer of settlement, extension orcomposition to its creditors generally.

9.6           Patriot Act Compliance. Purchaseris not acting, directly or indirectly for, or on behalf of, any person, group,entity or nation named by any Executive Order (including the September 24,2001, Executive Order Blocking Property and Prohibiting Transactions WithPersons Who Commit, Threaten to Commit, or Support Terrorism) or the UnitedStates Treasury Department as a terrorist, “Specially Designated National andBlocked Person,” or other banned or blocked person, entity, or nation pursuantto any Law that is enforced or administered by the Office of Foreign AssetsControl, and is not engaging in this transaction, directly or indirectly, onbehalf of, or instigating or facilitating this transaction, directly orindirectly, on behalf of, any such person, group, entity or nation.

 

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9.7           Limitations. Therepresentations and warranties of Purchaser to Seller contained herein shallsurvive the Closing Date and the delivery of the Deed for a period of one year.

10.           ACTIONS AFTER THE CONTRACT DATE. Theparties covenant to do the following through the Closing Date:

10.1         Title. From and after theContract Date, Seller shall not make any change to the condition of title toeither or both of the Land and the Improvements that would change the conditionof title approved or deemed approved by Purchaser pursuant to Section 7.4,except as required by law or by Section 7.4,or with Purchaser’s advancewritten consent, which consent may be withheld in Purchaser’s reasonablediscretion. From and after the Contract Date, and except with respect to normalleasing activities at the Land and the Improvements (in accordance with Section 10.3below), Seller shall not sell, or assign or create any right, title or interestin, any or all of the Land, the Improvements and any part of either of them, orcreate any lien, encumbrance or charge thereon, without the prior writtenconsent of Purchaser, which consent may be withheld in Purchaser’s reasonablediscretion.

10.2         Maintenance and Operation ofProperty. From and after the Contract Date, Seller shall maintain the Landand the Improvements in substantially its current condition (normal wear andtear and damage by casualty excepted); shall maintain existing insurancecoverage in full force and effect; and shall operate and maintain the Land andthe Improvements in the ordinary course of Seller’s business; provided,however, that in no event shall Seller be obligated to make any capitalrepairs, replacements or improvements to the Improvements. From and after theContract Date, and except with respect to normal leasing activities at the Landand the Improvements (in accordance with Section 10.3 below),Seller shall not enter into any new contract or agreement with respect to theownership and operation of the Land and the Improvements that would be bindingon Purchaser or the Property after Closing, without Purchaser’s prior writtenapproval (which approval may be withheld in Purchaser’s reasonable discretion).

10.3         Leasing Activities. From andafter the Contract Date, Seller shall not execute and enter into any new lease,license or occupancy agreement for all or some portion of the Land and theImprovements, including, without limitation, any amendment, renewal, expansionor modification to, or termination of, any Existing Lease (all of theforegoing, a “New Lease”) unless  Sellerobtains Purchaser’s advance written consent to such New Lease, which consentmay be withheld in Purchaser’s sole discretion, but which consent shall bedeemed automatically denied if Purchaser fails to respond within five (5) businessdays after Seller makes a written request for same provided that if Sellerprovides a second notice and Purchaser does not respond within an additionalfive (5) business days after such additional notice, such consent shall bedeemed automatically given. New Leases shall not include, and Seller shall befree to execute and enter into at any time, any non-discretionary amendments,modifications, renewals or expansions of any Existing Lease pursuant to therequirements of such Existing Lease. Seller shall provide Purchaser with acontemporaneous copy of all such non-discretionary amendments.

10.4         Leasing Expenses. “LeaseExpenses” shall mean, collectively, any and all commissions and fees or costsand expenses arising out of or in connection with the leasing of the Property,including, but not limited to, (i) any extension, renewal or expansion ofany

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Existing Lease exercised between the Contract Date andthe Closing Date and (ii) any New Lease. Lease Expenses shall include,without limitation, (a) brokerage commissions and fees to effect any suchleasing transaction, (b) expenses incurred for repairs, tenantimprovements and tenant incentives (including, but not limited to, free rent orany reduction of current rent), (c) allowances for tenant improvements andmoving, and (d) reasonable legal fees for services in connection with thepreparation of documents and other services rendered in connection with theeffectuation of the leasing transaction. Lease Expenses for any Existing Leasesrelating to the base lease term or any renewal term that is elected or withrespect to which an option is exercised, as the case may be, prior to theContract Date shall be paid in full at or prior to Closing by Seller, withoutcontribution or proration from Purchaser (“Seller’s Lease Expenses”). Notwithstandingthe foregoing, to the extent that any such Seller’s Lease Expenses have notbeen paid in full by Seller prior to Closing, Purchaser may elect to assumeresponsibility for such unpaid Seller’s Lease Expenses, and, upon such election,shall receive a credit against the Purchase Price in the amount of such assumedunpaid Seller’s Lease Expenses. Lease Expenses for (x) any renewals (otherthan renewals with respect to which an option is exercised prior to theContract Date) or expansions of any Existing Lease (other than expansionselected or with respect to which an option is exercised prior to the ContractDate), and (y) any New Leases shall be the sole responsibility ofPurchaser, without contribution or proration from Seller (“Purchaser’s LeaseExpenses”). In the event Seller has paid any Purchaser’s Lease Expenses on orprior to Closing (including, but not limited to, by way of tenant incentives inthe form of any reduction in rent that would otherwise have been payable withrespect to the period from the Contract Date through Closing), Purchaser shallcredit or reimburse Seller for such amounts at Closing. Seller herebyindemnifies, protects, defends and holds Purchaser, and its successors andassigns (the “Purchaser’s Indemnified Parties”), harmless from and against anyand all Losses that any or all of Purchaser and any Purchaser’s IndemnifiedParties actually suffer and incur as a result of the failure by Seller totimely pay or discharge any of the Seller’s Lease Expenses. Purchaser herebyindemnifies, protects, defends and holds Seller and the Seller IndemnifiedParties harmless from and against all Losses that any or all of Seller and theSeller Indemnified Parties actually suffer or incur as a result of the failureby Purchaser to timely pay or discharge any of the Purchaser’s Lease Expensesor any New Lease Expenses (including, but not limited to, any amounts requiredto be credited or reimbursed to Seller pursuant to the terms of this Section 10.4).The terms of this Section 10.4 shall survive the Closingand the delivery of any conveyance documentation.

10.5         Lease Enforcement. Prior to theApproval Date, Seller shall have the right, but not the obligation, to enforcethe rights and remedies of the landlord under any Existing Lease or New Lease,by summary proceedings or otherwise, and to apply all or any portion of anysecurity deposit then held by Seller toward any loss or damage incurred bySeller by reason of any defaults by tenants, and the exercise of any suchrights or remedies shall not affect the obligations of Purchaser under thisAgreement in any manner. From and after the Approval Date, Seller shall obtainPurchaser’s prior written consent, which shall not be unreasonably withheld,conditioned or delayed, to such enforcement or application of securitydeposits.

10.6         Estoppel Certificates. Sellershall use reasonable and diligent efforts to obtain and deliver to Purchaserestoppel certificates from each of the tenants of the Land and theImprovements, which estoppel certificates shall be without material and adversemodification to the form of estoppel certificate attached as Exhibit Dhereto or such form as may be required by

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the applicable tenant’s Lease (each estoppelcertificate satisfying such criteria, a “Conforming Estoppel”) on or prior tothe Closing Date. It shall be a condition precedent to Purchaser’s obligationto proceed to close hereunder that, on or prior to the Closing Date, Sellerdelivers to Purchaser a Conforming Estoppel from all of the tenants of the Landand the Improvements (the “Required Estoppel Amount”).If Purchaser receives any estoppel certificate more than three (3) businessdays prior to Approval Date and fails to notify Seller, in writing, that suchestoppel certificate does not constitute a Conforming Estoppel, Purchaser shallbe deemed to have accepted such estoppel certificate as a Conforming Estoppelfor all relevant purposes under this Agreement, irrespective of anymodifications made therein by the applicable tenant. If Purchaser does notreceive a sufficient number of Conforming Estoppels to satisfy the RequiredEstoppel Amount, Purchaser may elect, as its sole and exclusive remedyhereunder, by delivery of written notice to Seller on or prior to Closing,either to (i) proceed to Closing and waive the condition precedent relatedto the Required Estoppel Amount and the delivery of Conforming Estoppels; or (ii) terminatethis Agreement, whereupon the Deposit shall be returned to Purchaser andneither party shall have any further liability or obligation hereunder, exceptas otherwise expressly provided herein.

11.           PROPERTY SOLD “ASIS”.

11.1         Except as is otherwise expresslyprovided in this Agreement, Seller hereby specifically disclaims any warranty(oral or written) concerning:  (i) thenature and condition of the Property and the suitability thereof for any andall activities and uses that Purchaser elects to conduct thereon; (ii) themanner, construction, condition and state of repair or lack of repair of theImprovements; (iii) the compliance of the Land and the Improvements ortheir operation with any laws, rules, ordinances or regulations of anygovernment or other body; and (iv) any other matter whatsoever except asexpressly set forth in this Agreement. EXCEPT AS IS OTHERWISE EXPRESSLYPROVIDED IN THIS AGREEMENT, THE SALE OF THE PROPERTY AS PROVIDED FOR HEREIN ISMADE ON A STRICTLY “AS IS” “WHERE IS” BASIS AS OF THE CLOSING DATE, AND SELLERMAKES NO WARRANTY OR REPRESENTATION, EXPRESS OR IMPLIED, OR ARISING BYOPERATION OF LAW, INCLUDING, BUT IN NO WAY LIMITED TO, ANY WARRANTY OFQUANTITY, QUALITY, CONDITION, HABITABILITY, MERCHANTABILITY, SUITABILITY ORFITNESS FOR A PARTICULAR PURPOSE OF THE PROPERTY, ANY IMPROVEMENTS LOCATEDTHEREON OR ANY SOIL CONDITIONS RELATED THERETO.

11.2         PURCHASER SPECIFICALLY ACKNOWLEDGESTHAT PURCHASER IS NOT RELYING ON (AND SELLER HEREBY DISCLAIMS ANDRENOUNCES) ANY REPRESENTATIONS OR WARRANTIES MADE BY OR ON BEHALF OF SELLER OFANY KIND OR NATURE WHATSOEVER, EXCEPT FOR THOSE PARTICULAR REPRESENTATIONS ANDWARRANTIES EXPRESSLY PROVIDED IN THIS AGREEMENT. FURTHER, PURCHASER, FORPURCHASER AND PURCHASER’S SUCCESSORS AND ASSIGNS, HEREBY RELEASES SELLER FROM,AND WAIVES, ANY AND ALL CLAIMS AND LIABILITIES AGAINST SELLER FOR, RELATED TO,OR IN CONNECTION WITH, ANY ENVIRONMENTAL OR PHYSICAL CONDITION AT THE PROPERTY(OR THE PRESENCE OF ANY MATTER OR SUBSTANCE RELATING TO THE ENVIRONMENTALCONDITION OF THE PROPERTY), INCLUDING, BUT NOT LIMITED TO, CLAIMS AND/ORLIABILITIES RELATING TO (IN ANY MANNER

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WHATSOEVER) ANY HAZARDOUS, TOXIC OR DANGEROUSMATERIALS OR SUBSTANCES LOCATED IN, AT, ABOUT OR UNDER THE PROPERTY, OR FOR ANYAND ALL CLAIMS OR CAUSES OF ACTION (ACTUAL OR THREATENED) BASED UPON, INCONNECTION WITH, OR ARISING OUT OF, CERCLA, AS AMENDED BY SARA, AND AS MAY BEFURTHER AMENDED FROM TIME TO TIME, RCRA, OR ANY OTHER CLAIM OR CAUSE OF ACTION(INCLUDING ANY FEDERAL OR STATE BASED STATUTORY, REGULATORY OR COMMON LAW CAUSEOF ACTION) RELATED TO ENVIRONMENTAL MATTERS OR LIABILITY WITH RESPECT TO, ORAFFECTING, THE PROPERTY. PURCHASER REPRESENTS TO SELLER THAT PURCHASER HASCONDUCTED, OR WILL CONDUCT PRIOR TO CLOSING, SUCH INVESTIGATIONS OF THEPROPERTY, INCLUDING BUT NOT LIMITED TO, THE PHYSICAL AND ENVIRONMENTALCONDITIONS THEREOF, AS PURCHASER DEEMS NECESSARY TO SATISFY ITSELF AS TO THECONDITION OF THE PROPERTY AND THE EXISTENCE OR NONEXISTENCE OF, OR CURATIVEACTION TO BE TAKEN WITH RESPECT TO, ANY HAZARDOUS OR TOXIC SUBSTANCES ON ORDISCHARGED FROM THE LAND OR THE IMPROVEMENTS, AND WILL RELY SOLELY UPON SAMEAND NOT UPON ANY INFORMATION PROVIDED BY, OR ON BEHALF OF, SELLER, ITS AGENTSAND EMPLOYEES WITH RESPECT THERETO, OTHER THAN SUCH REPRESENTATIONS ANDWARRANTIES OF SELLER AS ARE EXPRESSLY SET FORTH IN THIS AGREEMENT. UPONCLOSING, PURCHASER SHALL ASSUME THE RISK THAT ADVERSE MATTERS, INCLUDING BUTNOT LIMITED TO, CONSTRUCTION DEFECTS AND ADVERSE PHYSICAL AND ENVIRONMENTALCONDITIONS, MAY NOT HAVE BEEN REVEALED BY PURCHASER’S INVESTIGATIONS, ANDPURCHASER, UPON CLOSING, SHALL BE DEEMED TO HAVE WAIVED, RELINQUISHED ANDRELEASED SELLER FROM AND AGAINST ANY AND ALL CLAIMS, DEMANDS, CAUSES OF ACTION(INCLUDING CAUSES OF ACTION IN TORT), LOSSES, DAMAGES, LIABILITIES, COSTS ANDEXPENSES (INCLUDING ATTORNEYS’ FEES AND COURT COSTS) OF ANY AND EVERY KIND ORCHARACTER, KNOWN OR UNKNOWN, WHICH PURCHASER MIGHT HAVE ASSERTED OR ALLEGEDAGAINST SELLER, AT ANY TIME BY REASON OF OR ARISING OUT OF ANY LATENT OR PATENTCONSTRUCTION DEFECTS OR PHYSICAL CONDITIONS, VIOLATIONS OF ANY APPLICABLE LAWS(INCLUDING, WITHOUT LIMITATION, ANY ENVIRONMENTAL LAWS) AND ANY AND ALL OTHERMATTERS REGARDING THE PHYSICAL OR ENVIRONMENTAL CONDITION OF THE PROPERTY. NOTWITHSTANDINGTHE FOREGOING, THIS RELEASE SHALL NOT EXTEND TO ANY BREACH OF A REPRESENTATIONOR WARRANTY OF SELLER, SELLER’S FRAUD OR A VIOLATION OF LAWS BY SELLER.

11.3         PURCHASER ACKNOWLEDGES AND AGREES THATTHE WAIVERS, RELEASES AND OTHER PROVISIONS CONTAINED IN THIS SECTION 11WERE A MATERIAL FACTOR IN SELLER’S ACCEPTANCE OF THE PURCHASE PRICE AND THATSELLER IS UNWILLING TO SELL THE PROPERTY TO PURCHASER UNLESS SELLER IS RELEASEDAS EXPRESSLY SET FORTH ABOVE. PURCHASER, WITH PURCHASER’S COUNSEL, HAS FULLYREVIEWED THE DISCLAIMERS AND WAIVERS SET FORTH IN THIS AGREEMENT, ANDUNDERSTANDS THE SIGNIFICANCE AND EFFECT THEREOF. THE TERMS AND CONDITIONS OFTHIS SECTION 11 WILL EXPRESSLY SURVIVE THE CLOSING, WILL NOT MERGE WITH

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THE PROVISIONS OF ANY CLOSING DOCUMENTS, AND WILL BEINCORPORATED INTO THE DEED.

12.           SELLER’S CLOSINGDELIVERIES.

At Closing (or suchother times as may be specified below), Seller shall deliver or cause to bedelivered to Purchaser the following:

12.1         Deeds. A Deed executed bySeller, conveying the Land and Improvements to Purchaser, subject to thePermitted Exceptions in the form attached as Exhibit H.

12.2         Assignment of Leases. Two (2) dulyexecuted counterparts of an Assignment and Assumption of Leases (the “Assignment of Leases”) in the form attached hereto as Exhibit E.

12.3         Assignment of Contracts. Two (2) dulyexecuted counterparts of an Assignment and Assumption of Contracts (an “Assignment of Contracts”) in the form attached hereto as Exhibit F.

12.4         Bill of Sale. Two (2) dulyexecuted originals of a Bill of Sale (the “Bill of Sale”)in the form attached hereto as Exhibit G.

12.5         Keys. Keys to all locks locatedin the Improvements.

12.6         Affidavit of Title. An affidavitof title (or comparable “no lien” statement), in form and substance reasonablyacceptable to the Title Company as may be required to enable Title Company toissue ALTA extended coverage for the Title Policy.

12.7         Closing Statement. Two (2) dulyexecuted counterparts of a closing statement (the “ClosingStatement”) conforming to the proration and other relevantprovisions of this Agreement, which Closing Statement shall be in a formmutually and reasonably agreed upon by Seller and Purchaser.

12.8         Entity Transfer Certificate. EntityTransfer Certification confirming that Seller is a “United States Person”within the meaning of Section 1445 of the Internal Revenue Code of 1986,as amended.

12.9         Letter of Credit. If applicable,with respect to any security deposits that are letters of credit, Seller shall (a) deliverto Purchaser at the Closing such letters of credit, (b) execute anddeliver such other instruments as the issuers of such letters of credit shallreasonably require, and (c) cooperate with Purchaser to change the namedbeneficiary under such letters of credit to Purchaser, so long as Seller doesnot incur any additional liability or expense in connection therewith.

12.10       Notices to Tenants. Notices toeach of the tenants under the Leases, notifying them of the sale of the Landand Improvements and directing them to pay all future rent as Purchaser maydirect, which forms shall be prepared by Purchaser and reasonably acceptable toSeller.

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12.11       Estoppel Certificates. TheConforming Estoppels pursuant to Section 10.6above.

12.12       Leases. Originals or certifiedcopies of the Leases, which certification shall be made subject to all of theterms, conditions and limitations of Sections 8.2 and 8.3.

12.13       Closing Date Certificate. Forpurposes of determining whether the Representation Condition has beensatisfied, Seller shall deliver to Purchaser at Closing a certificate (the “Closing Date Certificate”) certifying that all of the SellerRepresentations are true and correct, as of the Closing Date and in allmaterial respects, except for changes and qualifications specified in suchClosing Date Certificate, such that the Closing Date Certificate is true andaccurate in all material respects. The representations, warranties andcertifications contained in the Closing Date Certificate shall be made bySeller to the standard of knowledge, if any, contained herein for theapplicable representations, warranties or certifications and subject to all ofthe terms, conditions and limitations contained in Sections 8.2 and8.3of this Agreement. Notwithstanding anything contained herein to the contrary,if, as of the Closing, the Representation Condition is not fulfilled for anyreason or any Seller Representations are not true and correct for any reasonnot within the reasonable control of Seller, in any material respect, Purchasermay, in its sole discretion and as its sole remedy, hereunder, at law or inequity, elect either to (aa) terminate this Agreement by delivery of writtennotice to Seller not later than the Closing Date, whereupon the Deposit shallbe returned to Purchaser and neither party shall have any further liabilityhereunder except for those liabilities that expressly survive a termination ofthis Agreement; or (bb) proceed to Closing and waive the failure of theRepresentation Condition.

13.           PURCHASER’S CLOSINGDELIVERIES.

At Closing (or at suchother times as may be specified below), Purchaser shall deliver or cause to bedelivered to Seller the following:

13.1         Closing Statement. Two (2) ClosingStatements executed in counterpart by Purchaser.

13.2         Assignment of Leases. Two (2) Assignmentof Leases executed in counterpart by Purchaser.

13.3         Assignment of Contracts. Two (2) Assignmentof Contracts executed in counterpart by Purchaser.

14.           PRORATIONS ANDADJUSTMENTS.

Prorationsshall be made as of the Closing Date as if Purchaser were in title for theentire Closing Date provided that no later than 11:00 a.m. Central Time onthe Closing Date, the Purchase Price, plus or minus the prorations and otheradjustments hereunder, shall be received by the Title Company from Purchaserfor disbursement to Seller by Federal Reserve wire transfer of immediatelyavailable funds to an account designated by Seller. If the net proceeds of thePurchase Price payable to Seller (after adjustments and prorations) are notsent by Federal Reserve wire transfer in immediately available funds andreceived by the Title Company from Purchaser for disbursement to Seller on orprior to 11:00 a.m. Central Time on the Closing Date,

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prorations shall be made as of the Closing Date as ifSeller remained in title as of the entire Closing Date, except that, to theextent such delay results from Seller’s failure to provide deliveries ordefault, prorations shall be made pursuant to the preceding sentence. Thefollowing shall be prorated and adjusted between Seller and Purchaser:

14.1         Security Deposits. The amount ofall cash security and any other cash tenant deposits held by Seller under theLeases, and interest due thereon, if any, shall be credited to Purchaser.

14.2         Utilities and Operating Expenses.To the extent not billed directly to tenants, or paid as part of AdditionalRent (as hereinafter defined) or otherwise by tenants, water, electricity,sewer, gas, telephone and other utility charges based, to the extentpracticable, on final meter readings and final invoices. Any operating expensesthat are not paid by the tenants as Additional Rent or otherwise shall beprorated between Purchaser and Seller, with Seller receiving a credit for anyoperating expenses paid by Seller and related to the period from and afterClosing.

14.3         Contracts. Amounts paid orpayable under the Contracts shall be prorated.

14.4         Assessments. To the extent notpaid by tenants as a component of Additional Rent or otherwise, allassessments, general or special, shall be prorated as of the Closing Date, withSeller being responsible for any installments of assessments that are due andpayable prior to the Closing Date and Purchaser being responsible for anyinstallments of assessments that are due and payable on or after the ClosingDate.

14.5         Base Rent. Purchaser willreceive a credit at Closing for the prorated amount of all base or fixed rentpayable pursuant to the Leases and all Additional Rents (collectively, “Rent”) previously paid to, or collected by, Seller andattributable to any period following the Closing Date. Rents are “Delinquent”when they were due prior to the Closing Date, and payment thereof has not beenmade on or before the Closing Date. Delinquent Rent shall not be prorated atClosing. All Rent collected by Purchaser or Seller from each tenant from andafter Closing will be applied as follows: (i) first, to Delinquent Rent owed for the month in which theClosing Date occurs (the “Closing Month”),(ii) second, to any accrued Rents owing to Purchaser, and (iii) third,to Delinquent Rents owing to Seller for the period prior to Closing. Any Rentcollected by Purchaser and due Seller will be promptly remitted to Seller. AnyRent collected by Seller and due Purchaser shall be promptly remitted toPurchaser. Purchaser shall use reasonable efforts to collect Delinquent Rentsowed to Seller in the ordinary course of its business; provided, however, thatSeller hereby retains the right to pursue any tenant under the Leases for anyRent and other sums due Seller for period attributable to Seller’s ownership ofthe Property; and provided further, however, Seller (i) shall be requiredto notify Purchaser in writing of Seller’s intention to commence or pursue anylegal proceedings; and (ii) shall not be permitted to commence or pursueany legal proceedings against any tenant seeking eviction of such tenant or thetermination of the underlying Lease. “Additional Rents”shall mean any and all amounts due from tenants for operating expenses, commonarea maintenance charges, taxes, shared utility charges, management fees,insurance costs, other comparable expenses and pass-through charges and anyother tenant charges. The provisions of this Section 14.5shall survive the Closing and the delivery of any conveyance documentation.

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14.6         Taxes. To the extent not paid bythe tenant directly or payable by tenants as Additional Rent or otherwise, allad valorem real estate and personal property taxes with respect to the Land andthe Improvements shall be prorated as of the Closing Date, based on the mostcurrently available final tax bill and on a cash basis for the calendar year inwhich the Closing occurs, regardless of the year for which such taxes areassessed.

14.7         Other. Such other items as arecustomarily prorated in transactions of this nature shall be ratably prorated.

14.8         Adjustments. In the event anyprorations made pursuant hereto shall prove incorrect for any reasonwhatsoever, or in the event the prorations set forth above are estimated on themost currently available (rather than based on the actual final) bills, eitherparty shall be entitled to an adjustment to correct the same provided that it makeswritten demand on the other within twelve (12) months after the Closing Date. Theprovisions of this Section 14.7shall survive Closing.

15.           CLOSING EXPENSES.

Seller shall only pay for: one-half any transfer taxes, one-halfthe cost of any escrows hereunder and the cost of the Title Policy (excludingany endorsements thereto or any “extended form coverage”). Purchaser shall payfor one half the costs of any escrow hereunder, the cost of any endorsementsthereto and any “extended form coverage” to the Title Policy, any excise tax,the cost of the Updated Survey, the costs and expenses in connection with anyloan to Purchaser with respect to the transaction contemplated hereby, one-halfany transfer taxes and the cost of recording the Deeds.

16.           DESTRUCTION, LOSSOR DIMINUTION OF PROPERTY.

If,prior to Closing, all or any portion of any or all of the Land and theImprovements is damaged by fire or other natural casualty (collectively “Damage”), or is taken or made subject to condemnation,eminent domain or other governmental acquisition proceedings (collectively “Eminent Domain”), then:

16.1         If the aggregate cost of repair orreplacement or the value of the Eminent Domain (collectively, “repair and/or replacement”)is $100,000 or less, in theopinion of Purchaser’s and Seller’s respective engineering consultants,Purchaser shall close and take the Property as diminished by such events, withan assignment by Seller of (a) any casualty insurance proceeds (togetherwith a credit from Seller to Purchaser of the full amount of any deductible notpaid directly by Seller or (b) condemnation proceeds, and  (c) an amount equal to the uninsuredportion of any casualty or condemnation up to an aggregate of (a), (b) and(c) of $100,000 and (d) in the case of either (a), (b) or (c),less any amounts reasonably incurred by Seller to repair the Property andcollect the insurance proceeds or condemnation award.

16.2         If the aggregate cost of repair and/orreplacement is greater than $100,000, in the opinion of Purchaser’s and Seller’srespective engineering consultants, then Purchaser, at its sole option, mayelect either to (i) terminate this Agreement by written notice to Sellerdelivered within five (5) days after Purchaser is notified of such Damageor Eminent Domain, in which event the Deposit shall be returned to Purchaserand neither party shall have any further liability

20



 

to the other hereunder, except for those liabilitiesthat expressly survive a termination of this Agreement; or (ii) proceed toclose and take the Property as diminished by such events, together with anassignment of the proceeds of Seller’s casualty insurance (together with acredit from Seller to Purchaser of the full amount of any deductible not paiddirectly by Seller) for all Damage (or condemnation awards for any EminentDomain), less any amounts reasonably incurred by Seller to repair the Propertyand collect the insurance proceeds or condemnation award.

16.3         In the event of a dispute betweenSeller and Purchaser with respect to the cost of repair and/or replacement withrespect to the matters set forth in this Section 16,an engineer designated by Seller and an engineer designated by Purchaser shallselect an independent engineer licensed to practice in the jurisdiction wherethe Property is located who shall resolve such dispute. All fees, costs andexpenses of such third engineer so selected shall be shared equally byPurchaser and Seller.

17.           CONDITIONSPRECEDENT

17.1         Conditions Precedent to Obligationof Purchaser. The obligation of Purchaser to consummate the transactionhereunder shall be subject to the fulfillment on or before the Closing Date ofall of the following conditions, any or all of which may be waived by Purchaserin its sole discretion:

(a)           Seller shall have delivered to TitleCompany all of the items required to be delivered to Purchaser pursuant to theterms of this Agreement;

(b)           All of the representations andwarranties of Seller contained in this Agreement shall be true and correct inall material respects as of the date of Closing (with appropriate modificationspermitted under this Agreement);

(c)           Seller shall have performed andobserved, in all material respects, all covenants and agreements of thisAgreement to be performed and observed by Seller as of the date of Closing; and

(d)           Title Company shall beunconditionally committed to issue to Purchaser upon the Closing the TitlePolicy in the form of the pro-forma policy or title commitment in the formcontemplated by Section 7.2.

17.2         Conditions Precedent to Obligationof Seller. The obligation of Seller to consummate the transaction hereundershall be subject to the fulfillment on or before the Closing Date of all of thefollowing conditions, any or all of which may be waived by Seller in its solediscretion:

(a)           Seller shall have receivedconfirmation of the wiring of the Purchase Price, as adjusted as providedherein;

(b)           Purchaser shall have delivered toTitle Company, all of the items required to be delivered to Seller pursuant tothe terms of this Agreement, including, but not limited to, those provided forin Section 13 hereof;

21



 

(c)           All of the representations andwarranties of Purchaser contained in this Agreement shall be true and correctin all material respects as of the date of Closing (with appropriatemodifications permitted under this Agreement); and

(d)           Purchaser shall have performed andobserved, in all material respects, all covenants and agreements of thisAgreement to be performed and observed by Purchaser as of the date of Closing.

18.           DEFAULT.

18.1         The following shall constitute a “Default”of Purchaser hereunder:  (i) Purchaserdefaults under any provision of this Agreement providing for the payment ofmoney or obligation to proceed to Closing; (ii) Purchaser defaults underany other provision of this Agreement and such default is not cured for aperiod of three (3) business days after receipt of notice of such default.

18.2         The following shall constitute aDefault of Seller hereunder:  (i) Sellerdefaults under any provision of this Agreement providing for the payment ofmoney or obligation to proceed to Closing; (ii) Seller defaults under anyother provision of this Agreement and such default is not cured for a period ofthree (3) business days after receipt of notice of such default.

18.3         Default by Seller. If Seller isin Default under any of the covenants and agreements of Seller hereunder,Purchaser may either (i) terminate Purchaser’s obligations under thisAgreement by written notice to Seller, in which event (a) the Depositshall be returned to Purchaser and Seller shall reimburse Purchaser for allreasonable, third party costs and expenses paid or incurred by Purchaser tonegotiate this Agreement and conduct its Basic Project Inspection promptlyafter the presentation of invoices thereof (the “Cost Payment”)up to a maximum aggregate amount not to exceed $25,000 and (b) uponPurchaser’s receipt of the Deposit and the Cost Payment, this Agreement shallterminate and neither party shall have any further liability hereunder exceptfor those liabilities that expressly survive a termination of this Agreement;or (ii) Purchaser may file an action for specific performance; provided,however, that if specific performance is not available as a result of Seller’sconveyance of the Property to a third party in breach of this Agreement,Purchaser may pursue an action for damages actually suffered by Purchaser up toan amount not to exceed $200,000. Purchaser shall have no other remedy for anyDefault by Seller. In the event of the failure of any condition precedent toPurchaser’s obligation to close expressly herein set forth, or in the event ofthe untruth or inaccuracy, in any material respect, of any SellerRepresentation as of the Contract Date (subject to the limitations contained inSections 8.4 and 12.13),Purchaser’s sole remedy hereunder, at law or in equity except as hereinafterexpressly provided, shall be to terminate this Agreement by delivery of writtennotice to Seller on or prior to Closing (or such sooner date as may be hereinspecified), in which event the Deposit shall be returned to Purchaser, andneither party shall have any further liability hereunder except for thoseliabilities that expressly survive a termination of this Agreement. Notwithstandingthe foregoing, in the event that, (A) as a result of the willfulmisconduct of Seller (or in the case of a breach of a Seller Representation,the deliberate and knowing misrepresentation by Seller of a SellerRepresentation) or an action of Seller taken with the express purpose offrustrating the purposes of this Agreement, (i) any Seller Representationis breached in any material respect; (ii) any condition precedent toPurchaser’s obligation fails,

22



 

or (iii) Seller fails to perform any covenant oragreement hereunder in Default; and (B) Purchaser elects to terminate thisAgreement, Seller shall reimburse Purchaser for all reasonable, third partycosts or expenses paid or incurred by Purchaser to pursue the transactionscontemplated hereby up to an amount not to exceed $200,000 promptly, and in anyevent within ten (10) days, after the presentation of invoices therefore. Allof the foregoing shall be without limitation upon the rights and remedies ofPurchaser hereunder, at law or in equity, in the event of a Default by Sellerpursuant to Sections 19 or 22 or any covenant, agreement, indemnity, representation orwarranty of Seller that survives the applicable Closing or the termination ofthis Agreement, subject to the limitations in Sections 8.2and 8.3 and Sections11.1, 11.2 and 11.3.

18.4         Default by Purchaser. In theevent Purchaser Defaults in its obligations to close the purchase of theProperty, or in the event Purchaser is otherwise in Default hereunder, then (i) Sellershall be entitled to (and shall) receive the Deposit as fixed and liquidateddamages, this Agreement shall terminate and neither party shall have anyfurther liability hereunder, except for those liabilities which expresslysurvive the termination of this Agreement and (ii) Purchaser shallimmediately direct the Title Company, in writing, to pay the Deposit to Seller.Seller shall have no other remedy for any Default by Purchaser, including anyright to damages. PURCHASER AND SELLER ACKNOWLEDGE AND AGREE THAT:  (1) THE AMOUNT OF THE DEPOSIT IS AREASONABLE ESTIMATE OF AND BEARS A REASONABLE RELATIONSHIP TO THE DAMAGES THATWOULD BE SUFFERED AND COSTS INCURRED BY SELLER AS A RESULT OF HAVING WITHDRAWNTHE PROPERTY FROM SALE AND THE FAILURE OF CLOSING TO HAVE OCCURRED DUE TO ADEFAULT OF PURCHASER UNDER THIS AGREEMENT; (2) THE ACTUAL DAMAGES SUFFEREDAND COSTS INCURRED BY SELLER AS A RESULT OF SUCH WITHDRAWAL AND FAILURE TOCLOSE DUE TO A DEFAULT OF PURCHASER UNDER THIS AGREEMENT WOULD BE EXTREMELYDIFFICULT AND IMPRACTICAL TO DETERMINE; (3) PURCHASER SEEKS TO LIMIT ITSLIABILITY UNDER THIS AGREEMENT TO THE AMOUNT OF THE DEPOSIT IN THE EVENT THISAGREEMENT IS TERMINATED AND THE TRANSACTION CONTEMPLATED BY THIS AGREEMENT DOESNOT CLOSE DUE TO A DEFAULT OF PURCHASER UNDER THIS AGREEMENT; AND (4) THEAMOUNT OF THE DEPOSIT SHALL BE AND CONSTITUTE VALID LIQUIDATED DAMAGES. All ofthe foregoing shall be without limitation upon the rights and remedies ofSeller hereunder, at law or in equity, in the event of a Default by Purchaserpursuant to Sections 6.1, 6.2, 6.3, 20 or 23 or anycovenant, agreement, indemnity, representation or warranty of Purchaser thatsurvives the Closing or the termination of this Agreement.

19.           SUCCESSORS ANDASSIGNS.

Neitherparty shall assign this Agreement without the prior written consent of theother, except that either party may assign its interest in and obligationsunder this Agreement to a so-called “Qualified Intermediary” in order toaccomplish an Exchange. Notwithstanding the foregoing, Purchaser may assign, inwhole or in part, all of its rights, title, liability, interest and obligationpursuant to this Agreement to an affiliate of Purchaser; provided that (i) nosuch assignment shall act to release Purchaser hereunder and (ii) Purchaserprovides Seller with a copy of a written assignment agreement between Purchaserand its assignee(s), which instrument shall be in form reasonably acceptable toSeller.

23



 

20.           LITIGATION.

Inthe event of litigation between the parties with respect to the Property, thisAgreement, the performance of their respective obligations hereunder or theeffect of a termination under this Agreement, the losing party shall pay allcosts and expenses incurred by the prevailing party in connection with suchlitigation, including, but not limited to, reasonable attorneys’ fees ofcounsel selected by the prevailing party. Notwithstanding any provision of thisAgreement to the contrary, the obligations of the parties under this Section 20 shall survive termination of this Agreementor the Closing and the delivery of any conveyance documentation.

21.           NOTICES.

Anynotice, demand or request which may be permitted, required or desired to begiven in connection therewith shall be given in writing and directed to Sellerand Purchaser as follows:

Seller:

First Industrial Development Services, Inc.
311 South Wacker Drive, Suite 4000
Chicago, Illinois 60606
Attn: Steve Janowiak
Facsimile: 312- 895-9479



 

 

With a copy to

 

its attorneys:

Barack Ferrazzano Kirschbaum Perlman & Nagelberg LLP
333 W. Wacker Dr., Suite 2700
Chicago, Illinois 60606
Attn: Jeffrey S. Rinkov
Facsimile: 312-984-3150



 

 

Purchaser::

Simpson Manufacturing Co., Inc.
5956 Las Positas
Pleasanton, California 94588
Attention: Michael Herbert, Chief Financial Officer
Fax: (925) 833-1496



 

 

with a copy to:

Alan J. Robin, Esq.
Shartsis, Friese LLP
One Maritime Plaza, 18

th Floor
San Francisco, California 94111
Fax 415-421 2922

 

 

 

Notices shall be deemedproperly delivered and received:  (i) whenand if personally delivered; or (ii) one (1) business day afterdeposit with Federal Express or other comparable commercial overnight courier;or (iii) the same day when sent by confirmed facsimile before 5:00 p.m.(Central Time) on a business day provided such facsimile is confirmed verbally.Notices may be delivered on behalf of the parties by their respectiveattorneys.

22.           BENEFIT.

24



 

ThisAgreement is for the benefit only of the parties hereto and no other person orentity shall be entitled to rely hereon, receive any benefit herefrom orenforce against any party hereto any provision hereof.

23.           BROKERAGE.

Eachparty hereto represents and warrants to the other that it has dealt with nobrokers or finders in connection with this transaction, except for CB RichardEllis and Chas Hawkins Company (“Broker”). Sellershall pay the brokers’ commission due to Broker pursuant to the terms of aseparate agreement between Seller and Broker. Seller hereby indemnifies,protects, defends and holds Purchaser and the Purchaser’s Indemnified Partiesharmless from and against all Losses suffered or incurred by any or all ofPurchaser and the Purchaser’s Indemnified Parties resulting from the claims ofany broker, finder or other such party in connection with the transactionscontemplated by this Agreement claiming by, through or under the acts oragreements of Seller. Purchaser hereby indemnifies, protects, defends and holdsSeller and the Seller Indemnified Parties harmless from and against all Lossessuffered or incurred by any or all of Seller and the Seller Indemnified Partiesresulting from the claims of any broker, finder or other such party inconnection with the transactions contemplated by this Agreement claiming by,through or under the acts or agreements of Purchaser. The obligations of theparties pursuant to this Section 22shall survive any termination of this Agreement.

24.           SEC Filing.         Notwithstanding anything in thisAgreement to the contrary, it is expressly agreed and understood that Purchasershall have the right, in its sole and absolute discretion, to file thisAgreement with the Securities and Exchange Commission, if Purchaser determinesthat such filing is necessary or advisable under the Securities Exchange Act of1934, as amended (“SEC Filings”).Except as expressly permitted with respect to SEC Filings, prior to theClosing, any release to the public of confidential information with respect tothe sale contemplated herein or any material terms set forth in this Agreementwill be made only in the form approved by Purchaser and Seller.

25.           MISCELLANEOUS.

25.1         Entire Agreement. This Agreementconstitutes the entire understanding between the parties with respect to thetransaction contemplated herein, and all prior or contemporaneous oralagreements, understandings, representations and statements, and all priorwritten agreements, understandings, letters of intent and proposals are mergedinto this Agreement. Neither this Agreement nor any provisions hereof may bewaived, modified, amended, discharged or terminated except by an instrument inwriting signed by the party against which the enforcement of such waiver,modification, amendment, discharge or termination is sought, and then only tothe extent set forth in such instrument.

25.2         Time of the Essence. Time is ofthe essence of this Agreement. If any date herein set forth for the performanceof any obligations by Seller or Purchaser or for the delivery of any instrumentor notice as herein provided should be on a Saturday, Sunday or legal holiday,the compliance with such obligations or delivery shall be deemed acceptable onthe next business day following such Saturday, Sunday or legal holiday. As usedherein, the term “legal holiday”

25



 

means any state or federal holiday for which financialinstitutions or post offices are generally closed in the State of Tennessee forobservance thereof.

25.3         Governing Law. This Agreementshall be governed by and construed in accordance with the internal laws of theState of Tennessee, without reference to its rules regarding conflicts oflaws.

25.4         Partial Invalidity. Theprovisions hereof shall be deemed independent and severable, and the invalidityor partial invalidity or enforceability of any one provision shall not affectthe validity of enforceability of any other provision hereof.

25.5         No Recording. Neither this Agreementnor any memorandum thereof shall be recorded and the act of recording byPurchaser shall be deemed a default by Purchaser hereunder.

25.6         Counterparts; Facsimile. ThisAgreement may be executed in multiple counterparts and shall be valid and bindingwith the same force and effect as if all parties had executed the sameAgreement. A fully executed facsimile copy of this Agreement shall be effectiveas an original.

25.7         Construction of Agreement. Inconstruing this Agreement, all headings and titles are for the convenience ofthe parties only and shall not be considered a part of this Agreement. Wheneverrequired by the context, the singular shall include the plural and themasculine shall include the feminine and vice versa. This Agreement shall notbe construed as if prepared by one of the parties, but rather according to itsfair meaning as a whole, as if both parties had prepared it. All Exhibitsattached hereto are incorporated in this Agreement by reference thereto.

25.8         No Oral Modification or Waiver. ThisAgreement may not be changed or amended orally, but only by an agreement signedby Purchaser and Seller in writing. No waiver shall be effective hereunderunless given in writing, and waiver shall not be inferred from any conduct ofeither party.

25.9         Survival. Only those covenants,agreements, undertakings and representations and warranties of Seller andPurchaser that expressly survive Closing pursuant to the terms of the Agreementshall survive Closing and the delivery of any conveyance documentation for theperiod herein set forth and all of the other covenants, agreements,undertakings and representations and warranties of Seller and Purchasercontained herein shall not survive Closing and shall merge into the conveyancedocumentation delivered at Closing.

26.           BOARD APPROVAL.The transactions contemplated hereby aresubject to the approval of the investment committee (the “Board”)of Seller on or prior to 30 days after the Contract Date (the “Internal Approval Date”). If the Board fails to approve the transactionscontemplated hereby for any reason or no reason, Seller shall have the right toterminate this Agreement by delivery of written notice to Purchaser on or priorto the Internal Approval Date, whereupon (i) this Agreement shall terminateand the Deposit shall be returned to Purchaser by the Title Company (or theSeller to the extend previously released to Seller); and (ii) neitherparty shall have any further liabilities hereunder except those liabilitiesthat expressly survive a termination of this Agreement. It is acknowledged byPurchaser that the Board may elect not

26



 

toapprove this transaction in its sole discretion for any reason, including, butnot limited to, a determination by the Board to sell the Property to a thirdparty. Seller will notify Purchaser immediately in the event the Boarddisapproves the transactions contemplated herein.

[signature page follows]

27



 

IN WITNESS WHEREOF, theparties hereto have executed this Agreement of Purchase and Sale on the datefirst above written.

 

SELLER:

 

 

 

FIRST INDUSTRIAL DEVELOPMENT SERVICES, INC.,

 

a Maryland corporation, its sole member

 

 

 

By:

/s/ DONALD STOFFLE

 

 

 

 

Name:

Donald Stoffle

 

 

 

 

Its:

Authorized Signatory

 

 

 

 

 

 

 

PURCHASER:

 

 

 

SIMPSON MANUFACTURING CO. Inc.,

 

a Delaware corporation

 

 

 

By:

/s/ MICHAEL J. HERBERT

 

 

 

 

Name:

Michael J. Herbert

 

 

 

 

Its:

Chief Financial Officer

 

28

































SCHEDULEOF EXHIBITS

A  Legal Description of the Land

B   Earnest Money Escrow Instructions

C   Documents

D  Estoppel Certificate

E   Assignment and Assumption of Leases

F   Assignment and Assumption of Intangibles

G   INTENTIONALLY OMITTED

H  Deed



EXHIBIT A

LEGALDESCRIPTION OF THE LAND

SURVEYOR’SDESCRIPTION
OF
BOSCH PROPERTY

Three tracts of land located in the Third Civil District of Sumner County, Tennesseeon Belvedere Drive at the CSXRailroad, said tracts being the same property described in Schedule A of Chicago Title Insurance Company Commitment No. 300589 and being more particularly describedas follows:

TRACTONE

Beginningin the easterly right-of-way of Belvedere Drive northeasterly 500.1 6 feet from an iron rod at the intersection of the easterly right-of-way of Belvedere Drive and the northerly right-of-way of CSX Railroad:

Thencewith said right-of-way of Belvedere Drive as follows:

Northeasterlywitha curveto the right80.64 feetto an iron rod, saidcurve having a radius of 666.20 feet, a central angle of 06° 56’ 08” and a chord of 80.59 feet at North 21° 59’ 56” East;
North 25° 28’ 00” East, 115.19 feet to an iron rod;
Northeasterlywith a curve to the left 437.58 feet to an iron rod, said curve having a radius of 1,176.15feet, a central angle of 21° 19’ 00” and a chord of 435.06 feet at North 14° 48’ 30” East;
North 04° 09’ 00” East, 443.1 9 feet;


ThenceSouth85° 10’ 00” East, 1,000.07 feet to the westerly boundary of Green & Little L.L.C. property of record in Deed Book 765, Page 768, R.O.S.C.

Thencewith said Green & LittleboundarySouth 04° 09’ 00” West, 504.31 feet to an iron rod in the northerly right-of-way of CSX Railroad;

Thencewith said right-of-way Southwesterly with a curve to the left 879.65 feet, said curve having a radius of 2,657.39feet, acentralangle of18° 57’ 58” and a chord of 875.64 feet at South 57° 41’ 28” West.

ThenceNorth88° 12’ 06” West, 443.15 feet to thebeginning;

Containing19.746acres,more or less, and being property conveyed to Bosch Braking Systems Corporation by deed from Allied-Signal, Inc., of record in Book 581, Page 726, R.O.S.C.

The above described property is subject to the following:

1.                 Charterright-of-way for CSX Railroad 100 feet from center oftracks.

2.                 Subject tract fence encroaches onto Green & LittleL.L.C. property.

TRACTTWO

Beginningin the easterly right-of-way of Belvedere Drive northeasterly 1,576.76 feet from an iron rod at the intersection of the easterlyright-of-way of Belvedere Drive and the northerly right-of-way of CSX Railroad;

Thencewith said right-of-way of Belvedere Drive North 04° 09’ 00” East, 401.72 feet to the southwesterly corner of Green & Little Development Companypropertyof record in Deed Book 519, Page 819, R.O.S.C.;

ThenceSouth85° 51’00” East, 1,000.00 feet to an iron rod at an interior corner of Green & Little L.L.C. property of record in Deed Book 765, Page 768, R.O.S.C.

Thencewith said Green & Little L.L.C. boundary South 04° 09’ 00” West, 413.65 feet;

ThenceNorth85° 10’ 00” West, 1,000.07 feet to the beginning;

A-1



Containing9.359 acres, more or less, and being property conveyed to Bosch Braking SystemsCorporation by deed from Allied-Signal. Inc., of record in Book 581, Page 726. R.O.S.C.

Theabove described property is subject to the following:

1.                 Subject tractfence encroaches onto Green & LittleL.L.C. property.

2.                 Notto be used as a separate building tract without the approval of the City of Gallatin, Tennessee.

TRACTTHREE

Beginningat an iron rod at the intersection of the easterly right-of-way of Belvedere Driveand the northerly right-of-way of CSX Railroad;

Thencewithsaidright-of-way of Belvedere Drive northwesterly with a curve to the right 500.16 feet, said curvehaving a radius of 666.20 feet, a central angle of 43” 00’ 56” and a chordof 488.49 feet at North 02” 58 36 West;

ThenceSouth 88” 12’ 06” East, 443.1 5 feet to the northerlyright-of-way of CSX Railroad;

Thencewithsaidright-of-way Southwesterly with a curve to the left 633.14feet to the beginning., said curve having a radius of 2,657.39 feet, a central angle of 13”39’ 04” and a chord of631.64 feet at South 37” 58’ 11” West.

Containing2.643acres,more or less, and being property conveyed to Bosch Braking Systems Corporationby deed from Allied-Signal, Inc., of record in Book 581, Page 726, R.O.S.C.

The above described property is subject to the following:

1.                 Charterright-of-way for CSX Railroad 100 feetfrom center of tracks.

2.                 Notto beused as a separate building tract withoutthe approval of the City ofGallatin, Tennessee.

A-2





EXHIBIT B

EARNESTMONEY ESCROW INSTRUCTIONS

These Earnest Money Escrow Instructions (“Instructions”) are entered into as of this _______ day ofFebruary, 2006 by and among FIRST INDUSTRIALDEVELOPMENT SERVICES, INC.Seller”), SIMPSON MANUFACTURING COMPANY, a _______________________ (“Purchaser”), and FIRST AMERICAN TITLEINSURANCE COMPANY Escrowee”).

WHEREAS, Purchaserand Seller entered into an Agreement of Purchase and Sale, dated as of the datehereof, (the “Agreement”), for the purchase andsale of the Property (as defined in the Agreement); and

WHEREAS, theparties desire to enter into escrow instructions with Escrowee pursuant towhich Purchaser shall deposit earnest money, as required under the Agreement(the “Escrow”).

NOW THEREFORE, inconsideration of the mutual covenants contained in these Instructions, andother good and valuable consideration, the receipt and legal sufficiency ofwhich are hereby acknowledged, the parties agree as follows:

1.             Deposit.

1.1           Earnest Money. Pursuant to theterms and provisions of the Agreement, Purchaser has deposited (or shalldeposit) with Escrowee initial earnest money in the sum of One Hundred  Thousand and No/100 Dollars ($100,000.00)(the “Initial Earnest Money”) and, as anadditional deposit in the sum of One Hundred Thousand and No/100 Dollars (the “Additional Earnest Money, together the Initial Earnest Moneyand any interest earned thereon, the “Earnest Money”).

1.2           Investment of Earnest Money. Escroweeshall invest the Earnest Money in interest-bearing securities, bank depositsand/or so-called “money market funds” established and managed by nationallyrecognized firms, as selected by Purchaser.

2.             Application ofEarnest Money at Closing and Upon Termination of Agreement.

2.1           At Closing. At Closing (as definedin the Agreement), the Earnest Money shall be delivered by Escrowee to Sellerand credited against the payment of the Purchase Price whereupon the Escrowshall terminate.

2.2           Upon Termination of the Agreement.Except as otherwise provided in Section 3below, in the event of any termination of the Agreement, the Earnest Moneyshall be distributed by Escrowee only pursuant to the joint written directionof Purchaser and Seller.

3.             Default.

3.1           Purchaser’s Default. In theevent that Purchaser breaches or defaults under the obligations imposed on itunder the Agreement, and Seller desires to obtain the Earnest Money

B-1



 

from Escrowee (pursuant to the terms of theAgreement), Seller shall be required to present to Escrowee:  Seller’s affidavit of default (the “Default Affidavit”), executed under penalty of perjury by anauthorized representative of Seller, certifying to Purchaser and Escrowee thatPurchaser is in default under the Agreement and, therefore, Seller is entitledto the Earnest Money proceeds. Upon receipt of the Default Affidavit fromSeller, Escrowee shall (i) deliver a copy of the Default Affidavit toPurchaser, in the manner as provided in Section 5below and (ii) if, within five (5) business days after the date onwhich the Default Affidavit is deemed to be delivered to Purchaser (pursuant toSection 5below), Escrowee has not received from Purchaser a notice (“Objection Notice”) objecting to Escrowee’s compliance withthe Default Affidavit, Escrowee shall deliver the Earnest Money.

3.2           Seller’s Default. In the eventthat Seller breaches or defaults under the obligations imposed on it under theAgreement, and Purchaser desires the return of the Earnest Money from Escrowee(pursuant to the terms of the Agreement), Purchaser shall be required to presentto Escrowee:  its own Default Affidavitexecuted under penalty of perjury by an authorized representative of Purchasercertifying to Seller and Escrowee that Seller is in default under the Agreementand, therefore, Purchaser is entitled to return of the Earnest Money proceeds. Uponreceipt of the Default Affidavit from Purchaser, Escrowee shall (i) delivera copy of the Default Affidavit to Seller as provided in Section 5below, and (ii) if, within five (5) business days after the date onwhich the Default Affidavit is deemed to be delivered to Seller (pursuant to Section 5 below), Escrowee hasnot received from Seller an Objection Notice, objecting to Escrowee’scompliance with the Default Affidavit, Escrowee shall deliver the Earnest Moneyto Purchaser.

4.             Objection Notices.If Escrowee receives an Objection Notice fromeither Seller or Purchaser within the time period set forth in Section 3above, then Escrowee shall refuse to comply with the Default Affidavit then inquestion (“Objectionable Default Affidavit”) until Escrowee receives (a) jointwritten instructions executed by both Purchaser and Seller, or (b) a finalnon-appealable order with respect to the disposition of the Earnest Money froma federal or state court of competent jurisdiction (“Court Order”), in eitherof which events Escrowee shall then disburse the Earnest Money in accordancewith such direction or Court Order, as the case may be. Notwithstanding theimmediately preceding sentence, if the party that delivers the Objection Noticedoes not (i) commence litigation with respect to the Earnest Money byfiling a complaint or action for a declaratory judgment in an appropriate courtof competent jurisdiction (“Litigation”), and (ii) provide notice and afile-stamped copy of such complaint or action for declaratory judgment toEscrowee and the other party to these Instructions within thirty (30) daysafter delivery of the then-applicable Objection Notice, then Escrowee shalldisburse the Earnest Money in accordance with the Objectionable DefaultAffidavit.

Notwithstanding anythingto the contrary in the Agreement or these Instructions, Seller and Purchaserhereby agree that in the event that (A) either or both of them delivers aDefault Affidavit pursuant to Section 3;(B) the recipient of a Default Affidavit delivers an Objection Notice inresponse thereto; (C) the party delivering an Objection Notice commencesLitigation; (D) the Litigation is ultimately resolved by the issuance of aCourt Order; and (E) the Court Order authorizes the disbursement of theEarnest Money to the party that delivered the Default Affidavit that gave riseto the Objection Notice and ensuing Litigation (the “InitiatingParty”), then the party that delivered such Objection Notice shallbe required to pay to the Initiating Party

B-2



 

interest on the EarnestMoney, from the date on which the Initiating Party delivered its DefaultAffidavit through the date on which the Escrowee disburses the Earnest Money tothe Initiating Party, which interest shall be at the per annum rate of fivepercent (5.0%) in excess of the per annum rate publicly announced, from time totime, by Chase Bank (or its successor) as its “prime” or “base” or “reference”rate of interest.

5.             Notices. Any notice,demand or request which may be permitted, required or desired to be given inconnection therewith shall be given in writing and directed to the partieshereto as follows:

Seller:

First Industrial Development Services, Inc.
311 South Wacker Drive, Suite 4000
Chicago, Illinois 60606
Attn: Steve Janowiak
Facsimile: 312- 895-9479



 

 

With a copy to

 

its attorneys:

Barack Ferrazzano Kirschbaum Perlman & Nagelberg LLP
333 W. Wacker Dr., Suite 2700
Chicago, Illinois 60606
Attn: Jeffrey S. Rinkov
Facsimile: 312-984-3150



 

 

Purchaser:

Simpson Manufacturing Co., Inc.
5956 Las Positas
Pleasanton, California 94588
Attention: Michael Herbert, Chief Financial Officer
Fax: (925) 833-1496



 

 

with a copy to:

Alan J. Robin, Esq.
Shartsis, Friese LLP
One Maritime Plaza, 18

th Floor
San Francisco, California 94111
Fax 415-421 2922

 

 

Escrowee:

First American Title Company
30 North LaSalle, Suite 310
Chicago, Illinois 60603
Attn: Dick Seidel
Facsimile: (312) 553-0480



 

 

 

Notices shall be deemedproperly delivered and received when and if either (i) the same day whenpersonally delivered prior to 5:00 p.m. (Chicago time); or (ii) one (1) businessday after deposits with Federal Express or other overnight courier; or (iii) thesame day when sent by confirmed facsimile at or prior to 5:00 p.m.(Chicago time) on a business day.

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6.             EscroweeObligations. The parties agree that, except asotherwise expressly provided in Section 4, the actions of, and the relationship between,Purchaser and Seller shall be governed by the terms of the Agreement. In allevents and under all circumstances (except as otherwise expressly provided in Section 4), the ultimate rights and obligations of Seller andPurchaser shall be strictly governed and controlled by the terms and provisionsof the Agreement, rather than these Instructions. In the event of any conflictbetween the terms and provisions of the Agreement and these Instructions, theterms and provisions of the Agreement shall control in all events andcircumstances except as otherwise expressly provided in Section 4. Notwithstanding the existence of the Agreement orany references herein to the Agreement, the parties agree that Escrowee (butnot Seller and Purchaser) shall be governed solely by the terms and provisionsof these Instructions. The parties furthermore agree that, except as otherwisespecifically provided in Section 4 above, Escrowee is hereby expressly authorized toregard, comply with, and obey any and all orders, judgments or decrees enteredor issued by any court, and, in case Escrowee obeys and complies with any suchorder, judgment or decree of any court, it shall not be liable to either of theparties hereto or to any other person, firm or corporation by reason of suchcompliance.

7.             Litigation. In the event of litigation between the partieswith respect to these Instructions, the performance of their respectiveobligations hereunder, or the effect of a termination under the Agreement orthese Instructions, the losing party shall pay all costs and expenses incurredby the prevailing party in connection with such litigation, including, but notlimited to, court costs and reasonable fees of counsel selected by theprevailing party. Notwithstanding any provision of the Agreement or theseInstructions to the contrary, the obligations of the parties under this Section 7shall survive a termination of either or both of the Agreement and theseInstructions.

8.             Time of theEssence. Time is of the essence of theseInstructions. If any date herein set forth for the performance of anyobligations by Seller, Escrowee or Purchaser or for the delivery of anyinstrument or notice as herein provided should be on a Saturday, Sunday orlegal holiday, the compliance with such obligations or delivery shall be deemedacceptable on the next business day following such Saturday, Sunday or legalholiday.

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9.             Counterparts. These Instructions may be executed incounterparts, each of which shall constitute an original, but all of whichtogether shall constitute one and the same instrument.

SELLER:


FIRST INDUSTRIAL DEVELOPMENT SERVICES, INC.,
a Maryland corporation

By:                                                                                         

Name:                                                                                    

Its:                                                                                         

 

PURCHASER:

SIMPSON MANUFACTURING CO. INC.,
a Delaware corporation

By:                                                                                         

Name:                                                                                    

Its:                                                                                         

 

ACCEPTED BYESCROWEE:

FIRST AMERICAN TITLE INSURANCECOMPANY

By:                                                                                         

Name:                                                                                    

Its:                                                                                         

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EXHIBIT C

DOCUMENTS

Eachto the extent in the Seller’s possession or reasonable control, except for item(e) below which shall be delivered only to the extent in Seller’s actualpossession:

(a)           Leases. Copies of all ExistingLeases and copies of any agreements with respect to any commissions due or tobecome due from Seller in connection with any such Existing Leases.

(b)           Books and Records. Copies ofthe income and expense statements (including tenant rents and CAM recoveriesand reconciliations and expense reports) for the Property prepared by Seller inthe ordinary course of Seller’s business for the last three (3) full yearsor any shorter period of Seller’s ownership of the Property (the “Operating Statements”), including the Operating Statement tothe extent prepared for the current year to date.

(c)           Approvals. Copies of all, ifany, of the following:  any licenses andpermits for the Property; copies of any plans and specifications for theImprovements and a copy of all Certificates of Occupancy.

(d)           Existing Title Policy and Survey.A copy of the most recent owner’s title insurance policy issued to Seller forthe Land and the Improvements, and a copy of the Survey.

(e)           Environmental Reports. Copiesof existing third party environmental reports prepared on behalf of Seller.

(f)            Tax Bills. Copies of allproperty tax assessments and bills for the last (2) years or such shorterperiod of time which Seller has owned the Property.

C-1




ESTOPPEL CERTIFICATE

To:                              SimpsonManufacturing Co., Inc., its successor and assigns; First IndustrialRealty Trust, Inc.; ____________________________; its successors andassigns; [Title Company]

(Lease to be Attached)

ESTOPPEL CERTIFICATE

The undersigned,______________________________________ (“Tenant”),hereby certifies that:

1.             Tenant isparty to that certain lease agreement (“Lease”), dated as of the ____________ day of ________________, 20___, by andbetween the undersigned, as tenant (“Tenant”), and ________________________________________________ as landlord (“Landlord”), covering certain [insert type of property] space(“Premises”) in the building located at_____________________ (“Building”). Thenet rentable square footage of the Premises is ________________________.

2.             The Lease is valid and in full force and effect onthe date hereof. The term of the Lease commenced on ____________, 20___, andthe termination date of the present term of the Lease, excluding renewals, is__________________, 20___.

3.             There are no other agreements between Landlord andTenant with respect to the Premises.

4.             There are no uncured defaults on the part of Tenantor on the part of Landlord under the Lease, and, to Tenant’s actual knowledge,no event has occurred and no condition exists which, with the giving of noticeor the lapse of time, or both, will constitute a default under the Lease.

5.             Fixed or base rent payable by Tenant presently is$______________ per month and no such rent has been paid more than 30 days in advanceof its due date. Tenant’s security deposit is $_______________.

6.             Tenant’s Share of the Building is _______.Additional rent (including Tenant’s share of tax increases and cost of livingincreases) payable by Tenant presently is $______________ per month and no suchrent has been paid more than 30 days in advance of its due date.

7.             Tenant claims no present charge, lien or claim ofoffset under the Lease or otherwise, against rents or other charges due or tobecome due thereunder.

D-1



8.             Tenant has accepted possession of the Premises andany improvements required by the terms of the Lease to be made by the lessorthereunder have been completed to the satisfaction of Tenant.

9.             The address for notices to be sent to Tenant is asset forth in the Lease.

10.           This Estoppel Certificate may be relied upon by anyprospective purchaser or encumbrance of the Building.

11.           Tenant has no right of first refusal, option orother right to purchase the Premises or the Building, nor does Tenant have anyright to unilaterally cancel the Lease, except as set forth in Section ____of the Lease.

12.           Tenant has no renewal options or expansion options,except as expressly provide in Section _____ of the Lease.

IN WITNESSWHEREOF, the undersigned hasexecuted and delivered this Estoppel Certificate on the ___________ day of______________, 20___.

_______________________________

(Tenant)

By:                                                                                         

Title:                                                                                      

D-2





EXHIBIT E

ASSIGNMENTAND ASSUMPTION OF LEASES

THIS ASSIGNMENT ANDASSUMPTION OF LEASES AND SECURITY DEPOSITS (the “Assignment”) is made andentered into this ____ day of __________, 20__ by and between                                                                                                    (“Assignor”),and                                                                                                 (“Assignee”).

R E C I T A L S:

WHEREAS, Assignor andAssignee entered into that certain Agreement of Purchase and Sale, dated_______________, 20___, and as amended from time to time (as amended, the “Agreement”), for the purchase and sale of the buildingcommonly known by the street address                                                                                                                                 (the“Premises”); and

WHEREAS, in connectionwith the consummation of the transaction contemplated under the Agreement,Assignor and Assignee desire to execute this Assignment.

NOW, THEREFORE, inconsideration of good and valuable consideration, the receipt and sufficiencyof which are hereby acknowledged, the parties agree as follows:

1.             Recitals. The foregoingrecitals are hereby incorporated in the body of this Assignment as if fullyrewritten and restated herein.

2.             Assignment of Leases. Assignorhereby sells, transfers and assigns to Assignee all of its right, title andinterest in and to those certain leases presently existing and described in Exhibit A attached hereto (collectively, the “Leases”) andany and all guaranties made in connection with the Leases, subject, however, tothe terms, covenants and conditions of the Leases and this Assignment. Notwithstandingthe foregoing, however, Assignor nevertheless retains, on a nonexclusive basis,the benefit and protection of any indemnity(ies) provided by the tenants underthe Leases for the benefit of the landlord.

3.             Assignment of Security Deposits.Assignor hereby sells, transfers and assigns to Assignee all of its right,title and interest in and to those security deposits required to be held bySeller pursuant to the Leases, and identified on Exhibit B attached heretoand made a part hereof (collectively, the “Security Deposits”).

4.             Assumption of Obligations. Assigneehereby accepts the assignment of the Leases, the rents due thereunder and theSecurity Deposits subject to the terms and conditions hereof, and from andafter the date hereof, Assignee hereby assumes and shall be responsible for andshall perform all of those obligations imposed on the lessor or landlord underthe Leases, which obligations first accrue after the date hereof (the “Closing”).

5.             Assignee’s Indemnification. Assigneehereby indemnifies, protects, defends and holds Assignor, Assignor’s_____________, the partners, officers, directors and shareholders of Assignor’s___________, and their respective successors, and assigns, harmless from anyand all claims, damages, losses, suits, proceedings, costs and expenses,including, without

E-1



limitation,reasonable attorneys’ fees (collectively, “Losses”), both known or unknown,present and future, at law or in equity, arising out of, by virtue of or in anyway related to the breach by Assignee of (or Assignee’s failure to timelyperform) any or all of the obligations imposed on the lessor or the landlordunder the Leases, which obligations accrue from and after the date of theClosing.

6.             Assignor’s Indemnification. Assignorhereby indemnifies, protects, defends and holds Assignee, Assignee’s ___________, the partners, officers,directors and shareholders of Assignee’s _____________ and all of theirrespective successors and assigns harmless from any and all Losses, both knownand unknown, present and future, at law or in equity and arising out of, byvirtue of, or related in any way to, the breach by Assignor of (or Assignor’sfailure to timely perform) any or all of the obligations imposed on the lessoror the landlord under the Leases, which obligations accrue on or prior to thedate of the Closing.

7.             Counterparts. ThisAssignment may be executed in one or more identical counterparts, all of which,when taken together shall constitute one and the same instrument.

8.             Governing Law. ThisAssignment shall be governed by and construed in accordance with the laws ofthe State of Tennessee.

9.             Attorney’s Fees  In the event of any action or proceedingbetween Assignor and Assignee to enforce any provision of this Assignment, thelosing party shall pay to the prevailing party all costs and expenses,including, without limitation, reasonable attorneys’ fees and expenses, incurredin such action and in any appeal in connection therewith by such prevailingparty. The “prevailing party” will be determined by the court before whom theaction was brought.

10.           Partial Invalidity. Theprovisions hereof shall be deemed independent and severable, and the invalidityor enforceability of any one provision shall not affect the validity orenforceability of any other provision hereof.

[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]

E-2



IN WITNESS WHEREOF,Assignor and Assignee have executed this Assignment on the date first abovewritten.

 

ASSIGNOR:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

By:

 

 

 

 

 

Name:

 

 

 

 

 

Its:

 

 

 

 

 

ASSIGNEE:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

By:

 

 

 

 

 

Name:

 

 

 

 

 

Its:

 

 

E-3







EXHIBIT F

ASSIGNMENT AND ASSUMPTIONOF INTANGIBLES

THIS ASSIGNMENT AND ASSUMPTION OFINTANGIBLES (the “Assignment”)is made and entered into this ____ day of ___________, 20__, by and between                                                                                                             Assignor”), and                                                                                                                                Assignee”).

R E C I T A L S:

WHEREAS, Assignor andAssignee entered into that certain Agreement of Purchase and Sale, dated_________________, 20___, and as amended from time to time (as amended, the “Agreement”), for the purchase and sale of                                                                                                     (the “Premises”);and

WHEREAS, in connectionwith the consummation of the transactions contemplated under the Agreement,Assignor and Assignee desire to execute this Assignment.

NOW, THEREFORE, inconsideration of good and valuable consideration, the receipt and sufficiencyof which are hereby acknowledged, the parties agree as follows:

1.             Recitals; Defined Terms. Theforegoing recitals are hereby incorporated into this Agreement as if fullyrewritten and restated in the body of this Assignment. Capitalized terms usedherein and not otherwise defined shall have the meanings respectively ascribedto them in the Agreement.

2.             Assignment of Intangibles. Assignorhereby quitclaims unto Assignee, without recourse, representation or warrantyof any kind whatsoever, all of Assignor’s right, title and interest (if any) inand to all, if any, Intangibles relating to the Premises. Such Intangibles arequitclaimed by Assignor to Assignee on an “AS-IS,” “WHERE-IS,” “WITH ALL FAULTS”basis, and without any warranties, representations or guaranties, either expressor implied, of any kind, nature or type whatsoever, except the foregoing shallbe without limitation upon any representations and warranties expresslycontained in the Agreement.

3.             Assumption of Obligations. Assigneehereby accepts the assignment of the Intangibles subject to the terms andconditions hereof, and from and after the date hereof.

4.             Counterparts. ThisAssignment may be executed in one or more multiple counterparts, all of which,when taken together shall constitute one and the same instrument.

5.             Governing Law. ThisAssignment shall be governed by and construed in accordance with the laws ofthe State of Tennessee

6.             In the event of any action or proceeding betweenAssignor and Assignee to enforce any provision of this Assignment, the losingparty shall pay to the prevailing party all costs and expenses, including,without limitation, reasonable attorneys’ fees and expenses, incurred in

F-1



suchaction and in any appeal in connection therewith by such prevailing party. The “prevailingparty” will be determined by the court before whom the action was brought.

7.             Partial Invalidity. The provisions hereof shall be deemed independent and severable, andthe invalidity or enforceability of any one provision shall not affect thevalidity or enforceability of any other provision hereof.

[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]

F-2



IN WITNESS WHEREOF,Assignor and Assignee have executed this Assignment on the date first abovewritten.

 

ASSIGNOR:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

By:

 

 

 

 

 

Name:

 

 

 

 

 

Its:

 

 

 

 

 

ASSIGNEE:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

By:

 

 

 

 

 

Name:

 

 

 

 

 

Its:

 

 

F-3







EXHIBIT G

INTENTIONALLYOMITTED

 

G-1



EXHIBIT H

DEED

This instrument preparedby:

Jeffrey S. Rinkov, Esq.
Barack Ferrazzano Kirschbaum Perlman & Nagelberg LLP
333 West Wacker Drive, Suite 2700
Chicago, Illinois 60606


SPECIAL

WARRANTYDEED

ADDRESS NEW OWNER(s) AS FOLLOWS:

SEND TAX BILLS TO:

MAP PARCEL NUMBERS

 

 

 

Map _____
Parcel _____

 

FOR AND IN CONSIDERATION of the sum of Ten dollarsand no/100 ($10.00), cash in hand paid by the Grantee and other good andvaluable considerations accepted as cash, the receipt and sufficiency of whichis hereby acknowledged, First Industrial Development Services, Inc., aMaryland corporation, as Grantor, has this day bargained and sold, and doeshereby transfer and convey unto ________________________________,, the Granteeherein, its successors, heirs, and assigns, certain real estate in_____________ County, Tennessee as described on Exhibit A attachedhereto and made a part hereof.

 

STATE OF ___________________

COUNTY OF _________________

I, the undersigned, hereby affirm that to the best of my knowledge, information and belief, the actual consideration for this transfer or value of the property transferred, whichever is greater, is $_________________, which amount is equal to or greater than the amount which the property transferred would command at a fair and voluntary sale.

Subscribed and sworn to before me this the _____ day of ____________, 200_

                                                                                                                                                                               
                                                                                                Affiant

My commission expires:  _____________________                                                                                                 
                                                (Affix Seal)                            Notary Public

 

H-1



This isunimproved (  ) improved (X ) property, knownas ________________,__________________, Tennessee.

TO HAVEAND TO HOLD said real estate, with the appurtenance, estate, title and interestthereto belonging, to the Grantee, its successors, heirs and assigns forever wecovenant that we are lawfully seized and possessed of said real estate in feesimple, have a good right to convey it, and that the same is unencumbered,except for those encumbrances set forth on Exhibit B attachedhereto.

Wefurther covenant and bind ourselves, our heirs and representatives, to warrantand forever defend the title to said real estate to said Grantee, itssuccessors, heirs and assigns, against the lawful claims of all persons,claiming by, through or under the Grantor.

Wheneverused, the singular number shall include the plural, the plural the singular andthe use of any gender shall be applicable to all genders.

[SignaturePage Follows]

H-2



 

 

Signature Page

 

 

 

 

FIRST INDUSTRIAL DEVELOPMENT SERVICES, INC., a Maryland corporation

 

 

 

 

By:

 

 

Its:

 

H-3



STATE OF                                           

COUNTY OF                                       

Beforeme, the undersigned Notary Public in and for the State and County aforesaid,personally appeared _____________________________________, with whom I ampersonally acquainted, or proved to me on the basis of satisfactory evidence,and who, upon his/her oath, acknowledged himself/herself to be the___________________ of First Industrial Development Services, Inc., aMaryland corporation, the within named grantor, and that he/she, as suchmanager, being authorized so to do, executed the foregoing instrument for thepurposes therein contained by signing the name of the corporation byhimself/herself as such manager as his/her free act and deed.

Witness my handand official seal, at office in                                                                                               ,this                        day of _______________, 200_.

 

 

 

Notary Public

 

My CommissionExpires:                                   

(Seal)

Return to:

 

H-4









EXHIBIT A

H-5



EXHIBIT B

Permitted Exceptions

H-6