<PAGE>
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of
the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported) April 9, 1996
CORPORATE PROPERTY ASSOCIATES 5, A CALIFORNIA LIMITED PARTNERSHIP
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(Exact name of registrant as specified in its charter)
CALIFORNIA 0-15778 13-3327950
------------------------- --------------------- ----------------------
(State of Organization) (Commission File No.) (IRS Employer
Identification Number)
50 Rockefeller Plaza, 2nd Floor
New York, NY 10020
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(Address of principal executive offices)
(212) 492-1100
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(Registrant's telephone number, including area code)
<PAGE>
ITEM 2. DISPOSITION OF PROPERTY
- --------------------------------
On April 9, 1996, Corporate Property Associates 5, a California
limited partnership (the "Partnership"), sold to Centerpoint Properties
Corporation ("Centerpoint") an improved parcel of real property located in
Hodgkins, Illinois (the "GATX Property"), the Equipment and all intangible
property associated with the GATX Property for a gross sales price of
$13,200,000.
The Partnership applied approximately $3,448,650 (including payment of
principal accrued interest and certain other costs) of the net sale proceeds to
repayment of the remaining debt on the GATX Property, which debt was held by
Aegon USA Realty advisors, a Georgia partnership. The remaining proceeds were
used to pay off two mortgage loans encumbered by two other Partnership
properties with the remainder applied to cash reserves.
ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS
(B) PRO FORMA FINANCIAL INFORMATION
Pro Forma Balance Sheet, March 31, 1996
Pro Forma Statement of Income for Quarter Ended March 31, 1996
Fro Forma Statement of Income for the Year Ended December 31, 1995
Pro Forma Annualized Statement of Taxable Operations and Cash Generated for the
Year Ended December 31, 1995 (Unaudited)
PRO FORMA FINANCIAL STATEMENTS
The following unaudited pro forma financial statements for the
Partnership have been prepared based upon certain pro forma adjustments to the
historical financial statements of the Company.
The statement covers only the properties or interests in entities owning
properties which have been disposed of by the Company and does not cover any
properties which the Company may acquire or dispose of in the future or any
future financings of these properties.
<PAGE>
CORPORATE PROPERTY ASSOCIATES 5 INCORPORATED
PRO FORMA BALANCE SHEET
March 31, 1996
(unaudited)
<TABLE>
<CAPTION>
Historical Pro Forma Adjustments Pro Forma
---------- --------------------- ---------
<S> <C> <C> <C> <C>
Assets: GATX Exide/Gould
Land $ 3,960,767 $ 3,960,767
Buildings 22,753,409 22,753,409
Accumulated depreciation (8,554,708) (8,554,708)
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Real estate accounted for under the operating method 18,159,468 18,159,468
Net investment in direct financing leases 19,339,895 19,339,895
Operating real estate 7,678,286 7,678,286
Real estate held for sale 13,772,271 ($8,179,820) 5,592,451
Cash and cash equivalents 3,592,721 9,466,874 ($7,530,189) 5,529,406
Funds in escrow 2,707,100 2,707,100
Other assets 2,968,601 (55,317) 2,913,284
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Total assets $68,218,342 $1,231,737 ($7,530,189) $61,919,890
===================================================================
Liabilities and Shareholders' Equity:
Liabilities
Mortgage notes payable $33,120,919 ($3,218,682) ($7,478,698) $22,423,539
Note payable to affiliate 1,151,000 1,151,000
Accrued interest payable 147,743 (23,124) (51,491) 73,128
Accounts payable and accrued expenses 510,210 510,210
Accounts payable to affiliates 117,618 117,618
Deferred gains & other liabilities 2,134,498 2,134,498
Prepaid rental income 110,951 110,951
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Total liabilities 37,292,939 (3,241,806) (7,530,189) 26,520,944
Shareholders' Equity
General partners (227,266) 269,729 42,463
Limited partners 31,152,669 4,203,814 35,356,483
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Total shareholders' equity 30,925,403 4,473,543 - 35,398,946
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Total liabilities and shareholders' equity $68,218,342 $1,231,737 ($7,530,189) $61,919,890
===================================================================
</TABLE>
<PAGE>
CORPORATE PROPERTY ASSOCIATES 5 INCORPORATED
PRO FORMA STATEMENT OF INCOME
For the Quarter Ended March 31, 1996
(Unaudited)
<TABLE>
<CAPTION>
Historical Pro Forma Adjustments Pro Forma
---------- --------------------- ---------
Revenues: GATX Helena Exide/Gould
---- ------ -----------
<S> <C> <C> <C> <C> <C>
Rental income $ 1,071,969 ($349,650) ($8,752) $ 713,567
Interest income from direct financing leases 823,158 823,158
Other interest income 28,511 28,511
Revenue of hotel operations 1,293,606 1,293,606
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3,217,244 (349,650) (8,752) 2,858,842
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Expenses:
Interest $ 759,171 (69,620) (12,049) ($233,700) $ 443,802
Depreciation 454,234 (95,873) 358,361
General and administrative 142,885 142,885
Property expenses 117,134 (5,338) (9,825) 101,971
Amortization 9,792 (6,146) 3,646
Operating expenses of hotel operations 1,230,044 1,230,044
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2,713,260 (176,977) (21,874) (233,700) $ 2,280,709
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Income before net gains on sale of real estate 503,984 (172,673) 13,122 233,700 578,133
Net gains on sale of real estate 90,356 (90,356)
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Net income $ 594,340 ($172,673) ($77,234) $ 233,700 578,133
==============================================================================
</TABLE>
<PAGE>
CORPORATE PROPERTY ASSOCIATES 5 INCORPORATED
PRO FORMA STATEMENT OF INCOME
For the Year Ended December 31, 1995
(Unaudited)
<TABLE>
<CAPTION>
Historical Pro Forma Adjustments Pro Forma
---------- --------------------- ---------
Revenues: Industrial
GATX Helena General Exide/Gould Liberty
---- ------ ---------- ----------- -------
<S> <C> <C> <C> <C> <C> <C> <C>
Rental income $4,642,686 ($1,398,000) ($530,480) $2,714,206
Interest income from direct
financing leases 3,879,125 ($637,322) 3,241,803
Other interest income 307,951 307,951
Revenue of hotel operations 6,768,268 6,768,268
Other income 170,107 (5,933) 164,174
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15,768,137 (1,398,000) (530,480) (643,255) 13,196,402
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Expenses:
Interest 3,495,872 (284,774) (200,752) (232,240) ($865,118) 1,912,988
Depreciation 2,065,781 (383,684) (224,894) 1,457,203
General and administrative 841,920 841,920
Property expenses 810,581 (4,800) (82,526) (110,692) ($174,936.0) 437,627
Amortization 33,599 (24,585) 9,014
Writedown to net realizable value 1,980,550 1,980,550
Operating expenses of hotel
operations 5,241,370 5,241,370
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14,469,673 (697,843) (508,172) (342,932) (865,118) (174,936) 11,880,672
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Income before net gains on sale
of real estate 1,298,464 (700,157) (22,308) (300,323) 865,118 174,936 1,315,730
Net gains on sale of real estate 614,234 1,719,828 (2,334,062) -
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Net income $1,912,698 ($700,157.0) ($22,308.0) $1,419,505 $865,118 ($2,159,126) $1,315,730
=============================================================================================
</TABLE>
<PAGE>
CORPORATE PROPERTY ASSOCIATES 5 INCORPORATED AND SUBSIDIARIES
PRO FORMA STATEMENT OF TAXABLE INCOME FOR THE YEAR
ENDED DECEMBER 31, 1995 AND AFTER TAX CASH FLOW (UNAUDITED)
Net income per consolidated pro forma
income for December 31, 1995 $ 1,315,730
Differences in depreciation (1,827,201)
Amortization of deferred gains (71,687)
Straight-line lease adjustments 49,032
Writedowns to net realizable value 1,980,550
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Pro forma taxable income 1,446,424
Add: Depreciation 3,284,404
Less: Principal amortization (57,150)
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Pro forma after tax cash flow $ 4,673,678
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1. Basis of Presentation:
The unaudited pro forma financial statements of Corporate Property
Associates 5 (the "Partnership") have been prepared based on the historical
financial statements of the Partnership. The pro forma balance sheet of the
Partnership has been prepared as if the sale of a property leased to GATX
Logistics, Inc. ("GATX") in Hodgkins, Illinois had been completed at March 31,
1996 and the proceeds from the sale had been used to satisfy the mortgage loan
encumbering the GATX property. In addition, the pro forma financial statement
has been prepared as if a portion of the excess proceeds generated from the GATX
property sale were used to pay off and satisfy mortgage loans encumbered by
properties leased to Exide Electronics Corporation ("Exide") and Gould, Inc.
("Gould"). In January 1996, the Partnership sold a multi-tenant office building
in Helena, Montana for $4,800,000 including the assignment of an existing
mortgage lease on the property. In September 1995, the Partnership terminated
its lease with Industrial General Corporation ("IGC") and sold three of the four
properties which had been leased to IGC. The pro forma financial statements
have been prepared to give effect to the Helena and IGC transactions. The pro
forma income statement and pro forma statement of taxable income and after tax
cash flow have been prepared as if the dispositions of the GATX and Helena
properties and the above-mentioned mortgage satisfactions had occurred on
January 1, 1995. The pro forma financial information should be read in
conjunction with the historical financial statements of the Partnership. The pro
forma financial statement should be read in conjunction with the historical
financial statements of the Partnership. The pro forma financial results are not
necessarily indicative of the financial position of the results of operations
had the dispositions occurred on January 1, 1995, nor are they necessarily
indicative of the financial position or results of operations for future
periods.
2. Pro Forma Adjustments
A. The net carrying value of the GATX property was reclassified to real estate
held for sale at March 31, 1995. After paying off the mortgage loan on the
property and writing off deferred financing costs related to such mortgage loan,
the gain on the sale will be first allocated to any partners with a negative
capital balance and, thereafter, allocated 99% to the Limited Partners and 1% to
the Individual General Partner in accordance with the Amended Agreement of
Limited Partnership.
6
<PAGE>
B. The mortgage payable balances on the Exide and Gould properties at March 31,
1996 were $1,387,877 and $6,090,822, respectively, with accrued interest thereon
of $12,577 and $38,913, respectively.
C. The GATX lease provided for annual rentals of $1,398,000. The property at
disposition had a depreciable basis of $11,518,378 with depreciation calculated
on a straight-line basis using a 30-year depreciable life; certain improvements
were capitalized during the period, accordingly, a full period's depreciation
has not been taken on such improvements. Interest expense was calculated based
on a loan with an initial balance of $3,500,000 at an annual interest rate of
8.625% and which provided for monthly payment of principal and interest of
$33,290 and an amortization schedule of 16 and one-half years. Property
expenses consist of certain costs which were specifically identified as relating
to the GATX property. Amortization expense was based on deferred financing
costs of $122,926 which were being amortized over the 5-year term of the
mortgage.
D. The Helena property is a multi-tenant facility and includes a lease with
International Business Machines Corporation ("IBM") for approximately 60% of the
leasable area. IBM rent was $282,227 annually and was adjusted for financial
reporting purposes to reflect straight line rent, primarily due to a lump sum
rental payment received in January 1993 which was being recognized as income
over the term of the IBM lease. Such adjustment increased IBM's rent for
financial reporting purposes by $35,870 for 1995. The remaining 6 tenants
contributed $212,383 of rentals. Depreciation expense was based on depreciable
assets of $6,623,794 using the 30-year straight line method with improvements of
approximately $363,000 placed in service throughout 1995. Interest was
calculated based on a mortgage loan with an initial balance of $2,937,000 at an
annual interest rate of 7% with monthly payments of principal and interest of
$18,800. Property expenses were based on expenses directly attributable to the
property, net of reimbursements received from IBM for its share of such
expenses. The leases with the other tenants at the property were not net
leases; accordingly, certain property expenses were the obligation of the
Partnership.
E. In September 1995, the Company terminated its lease with IGC and sold three
properties and satisfied a mortgage which collateralized the IGC properties and
a property leased to FMP/Rama Company. Rental income, interest expense and
property expense relating to IGC has been eliminated. As the IGC lease was a
direct financing lease, depreciation was not recorded for financial reporting
purposes.
F. Interest expense on the Exide and Gould mortgage loans were calculated as
follows. The Exide loan which had an initial balance of A$1,500,000 provided
for monthly payments of interest and principal of $14,854.50 based on a thirty-
year amortization schedule and an annual interest rate of 11.50%. The Gould
loan which had an initial balance of $700,000 provided for monthly payments of
principal and interest of $71,153 based on a twenty-five year amortization
schedule at an annual interest rate of 11.5%.
G. In December 1994 the Company transferred two properties to its lessee,
Liberty Fabrics of New York ("Liberty") even though a final determination of the
purchase price had not been determined. No gain was recognized at that time as
Liberty, subject to certain conditions, could rescind the property transfer.
The contingencies were subsequently resolved, resulting in such transfer being
irrevocable and the gain on sale recognized. The costs related to resolving the
contingency and the gain recognized at the time of such resolution have been
eliminated from pro forma net income.
7
<PAGE>
H. Adjustments for pro forma taxable income are as follows:
1. Depreciation differs between tax and financial reporting as (i)
depreciation is taken for tax purposes on all real properties while no
depreciation is taken for financial reporting purposes on real property which
has been classified as a direct financing lease, and (ii) the depreciable lives
for tax purposes differ from the depreciable lives for financial reporting
purposes on real property which has been classified as an operating method
lease.
2. Certain gains which were deferred for financing reporting purposes
and are being amortized were not deferred for tax reporting purposes.
Accordingly, the benefit realized for financial reporting purposes was
recognized in prior periods for tax reporting purposes and has been eliminated.
3. Straight line lease adjustments are not recognized for tax purposes.
This adjustment relating to the IBM lease has not been included (see 2D).
4. Writedowns to net realizable value are based on management's
judgment pursuant to Statement of Financial Accounting Standard No. 121. Such
writedowns are not deductible for tax purposes.
5. The depreciation adjustment for after-tax cash flow consists of the
sum of (i) pro forma financial reporting depreciation for the year ended
December 31, 1995 and (ii) the adjustment for differences in depreciation
described above.
6. Principal amortization is based on actual amortization reported in
the Partnership's Statement of Cash Flows for the year ended December 31, 1995
and reduced for principal amortization on the GATX, Helena, Exide, Gould and IGC
mortgage loans.
8
<PAGE>
(C) EXHIBITS
The following exhibits are filed as part of this Current Report on Form 8-K:
Exhibit No. Exhibit Page No.
- ----------- ------- --------
10.1 Purchase Agreement dated March 28, 1996
between Corporate Property Associates 5,
the seller, CenterPoint Properties
Corporation as purchaser
10.2 Amendment to Purchase Agreement dated
April 3, 1996 between Corporate Property
Associates 5, the seller, CenterPoint
Properties Corporation as purchaser
9
<PAGE>
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities
Exchange Act of 1934, as amended, the Registrant has duly caused this report to
be signed on its behalf by the undersigned, thereunto duly authorized, on this
28th day of May, 1996.
CORPORATE PROPERTY ASSOCIATES 5
By: W.P. Carey & Co., Inc.,
its managing general partner
By: \s\Michael D. Roberts
---------------------------------
Michael D. Roberts
First Vice President and
Controller
<PAGE>
EXHIBIT INDEX
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Exhibit No. Exhibit Page No.
- ----------- ------- --------
10.1 Purchase Agreement dated March 28, 1996 between
Corporate Property Associates 5, the seller,
CenterPoint, Properties Corporation as
purchaser.
10.2 Amendment to Purchase Agreement dated
April 3, 1996 between Corporate Property
Associates 5, the seller, CenterPoint
Properties Corporation as purchaser
<PAGE>
EXHIBIT 10.1
PURCHASE AGREEMENT
------------------
THIS PURCHASE AGREEMENT is made and entered into as of this 28th
day of March, 1996 ("Agreement") by and between CENTERPOINT PROPERTIES
CORPORATION, a Maryland corporation ("Purchaser"), and CORPORATE PROPERTY
ASSOCIATES 5, a California limited partnership ("Seller").
RECITALS
--------
A. Seller currently owns fee simple title to certain real estate
located in Hodgkins, Illinois, legally described in Exhibit "A" attached
-----------
hereto and made a part hereof ("Land").
B. Purchaser desires to purchase from Seller and Seller desires
to sell to Purchaser the Project (as hereinafter defined) in accordance with
the terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the mutual covenants and
conditions hereinafter set forth, and of Purchaser's agreement to use due
diligence in its inspection and review during the Inspection Period (as
hereinafter defined) the receipt and sufficiency of which is hereby
acknowledged by the parties hereto, the parties hereby agree as follows:
1. Agreement to Purchase. Subject to the terms and
---------------------
conditions of this Agreement and the above recitals which are by this reference
incorporated herein, Seller agrees to sell to Purchaser and Purchaser agrees to
purchase from Seller all of the following described property (collectively,
"Project"):
A. The Land and all rights, privileges, easements and
appurtenances to the Land owned by Seller, including, without limitation,
all mineral rights, easements, rights-of-way, gas and hydrocarbons, and
other appurtenances used or connected with the beneficial use or
enjoyment of the Land which are owned by Seller; and all right, title and
interest of Seller in and to all streets, water courses or water bodies
adjacent to, abutting or serving the Land.
B. That certain building located upon the Land and
containing approximately 630,410 square feet of interior floor area and
identified with the common street address of 6600 River Road, Hodgkins,
Illinois, and all other improvements, structures, elevators, fixtures,
parking areas and, to the extent owned by Seller, other improvements of
any kind or nature whatsoever now or hereafter located on the Land
(collectively, "Building") (the Land and Building are sometimes
collectively, the "Real Property").
C. All equipment, apparatus, machinery, cranes,
appliances, furnishings, signs, site plans, surveys, soil and substrata
studies, architectural renderings, plans and specifications, engineering
plans and studies, floor plans and other plans or studies of any kind
owned by Seller, if any, and other fixtures and personal and tangible
property, if any, owned by Seller and used in connection with the
operation and ownership of the Building or the Land ("Personal
Property").
<PAGE>
D. All intangible property now or hereafter owned,
controlled or held by Seller, if any, between the date hereof and the
Closing (as hereinafter defined), solely in connection with the Building
and the Personal Property, including, but not limited to: (i) all
guaranties and warranties, including guaranties and warranties pertaining
to construction of the Building (collectively, "Warranties"); (ii) all
air rights, excess floor area rights and other development rights
relating or appurtenant to the Land or the Building; (iii) all rights to
obtain utility service in connection with the Building and the Land; (iv)
assignable licenses and other governmental permits and permissions
relating to the Land, the Building, and the operation thereof
(collectively, "Permits"); (v) all contracts and contract rights
identified on Exhibit "B" attached hereto and made a part hereof
-----------
(collectively, "Project Contracts"); (vi) all trade marks and trade names
(all of the foregoing are collectively, "Intangible Property").
E. All of Seller's right, title and interest as landlord
in and to the Lease (as hereinafter defined), a copy of which is attached
hereto as Exhibit "C".
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2. Purchase Price. Subject to prorations and credits
--------------
hereinafter provided, the Purchase Price ("Purchase Price") for the Project
shall be THIRTEEN MILLION FIVE HUNDRED THOUSAND AND NO/00 DOLLARS
($13,500,000.00), which shall be payable and allocated as follows:
A. Earnest Money. Purchaser shall deliver to
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Chicago Title and Trust Company ("Escrowee") the sum of TWO HUNDRED FIFTY
THOUSAND AND NO/00 DOLLARS ($250,000.00) as earnest money (said money,
including any and all interest accrued thereon, is collectively, the
"Earnest Money") within five (5) days after the full execution and
delivery of this Agreement. The Earnest Money shall be held in a joint
order escrow to be entered into between Seller and Purchaser with
Escrowee in the form of Exhibit "D" attached hereto and made a part
-----------
hereof, and shall be invested for Purchaser's benefit and all income
earned thereon shall be paid to Purchaser. The Earnest Money shall be
applied toward the Purchase Price at Closing (as hereinafter defined).
B. Cash Balance. On or before the Closing Date (as
------------
hereinafter defined), Purchaser shall deposit with Escrowee THIRTEEN
MILLION TWO HUNDRED FIFTY THOUSAND AND NO/00 ($13,250,000.00)
representing the cash portion of the Purchase Price by Federal wire
transfer of immediately available funds, together with such additional
funds for Purchaser's share of closing costs and prorations as may be
required pursuant to this Agreement.
3. Closing. Subject to the terms and conditions contained
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in this Agreement, the consummation of the transactions herein contemplated
("Closing") shall take place on April 9, 1996 ("Closing Date") or at an earlier
or later date by mutual agreement between the parties. The transaction herein
contemplated shall be closed through an escrow with Chicago Title Insurance
Company ("Title Company") in Chicago, Illinois on the Closing Date, in
accordance with the general provisions of the usual form of "New York Style"
Deed and Money Escrow Agreement then in use by Title Company, with such special
provisions inserted in the escrow agreement as may be required to conform with
this Agreement ("Escrow"). Upon the creation of the Escrow, anything herein to
the contrary notwithstanding, payment of the Purchase Price and delivery of the
Deed (as hereinafter defined) and other documents to be delivered pursuant to
Section 6 below, shall be made through the Escrow. Seller and Purchaser (if
2
<PAGE>
required) shall execute gap undertakings in the form required by the Title
Company in order to close by a "New York Style" closing.
4. Documents Delivered by Seller. Seller and Purchaser
-----------------------------
hereby agree that Seller has delivered and Purchaser has received all of the
following pertaining to the Project (collectively, the "Property Information"):
A. Correspondence dated January 22, 1993 received from the
Township of Hodgkins relating to the Project.
B. Copies of any reports or studies (including
engineering, soil boring and physical inspection reports) in Seller's
actual possession, if any, in respect of the physical condition or
operation of the Project or recommended improvements thereto.
C. A copy of the bill or bills issued for the three (3)
most recent years for which bills have been issued for all real estate
taxes.
D. A true, correct and complete copy of the Lease.
E. All other material studies, reports, maps and documents
related to the Project that are in Seller's actual possession, if any,
including, without limitation, engineering reports, most recent survey,
environmental reports, documents relating to any special use, conforming
use or zoning variance and all correspondence with governmental agencies
and their personnel concerning the same, but excluding market analyses.
5. Title and Survey.
----------------
A. Conditions of Title. Good and marketable fee
-------------------
simple title to the Real Property shall be conveyed by Seller to Purchaser or
its nominee by a special warranty deed ("Deed") in the form of Exhibit "N"
-----------
attached hereto and by this reference made a part hereof, subject only to the
Permitted Exceptions (as hereinafter defined).
B. Title.
-----
(i) Title Insurance Commitment. Purchaser
--------------------------
has obtained a commitment (the "Commitment") for an Owner's Policy of
Title Insurance issued by Title Company as its order number 7601173
showing title to the Property in Seller. Purchaser hereby approves the
exceptions to title ("Permitted Exceptions") set forth on Exhibit "E"
-----------
attached hereto and by this reference made a part hereof. If an
exception to title or other title defect other than a Permitted Exception
is added to the Commitment subsequent to the date hereof, but prior to
the Closing Date ("Unpermitted Exceptions"), then, prior to the Closing
Date, Seller shall be affirmatively obligated to cure any such
Unpermitted Exception the failure of which shall constitute a default by
Seller under this Agreement.
C. Title Policy. On the Closing Date, Seller shall
------------
cause Title Company to issue to Purchaser an ALTA 1990 Owner's Policy of Title
Insurance or irrevocable commitment to issue same covering the Project in the
amount of the Purchase Price, showing fee simple title vested in
3
<PAGE>
Purchaser, with extended coverage over all general exceptions and containing
the following endorsements: (i) 3.1 Zoning with parking, (ii) access, (iii)
utility facility, (iv) restrictions insuring over the recorded covenants,
conditions or restrictions of record, (v) tax parcel, (vi) deletion of the
creditor's rights exclusion, (vii) contiguity, and (viii) encroachment, if
applicable, subject only to (i) general taxes not yet due or payable, (ii) any
matters listed on Exhibit "E" attached hereto and incorporated herein,
-----------
(iii) rights of Tenant (as hereinafter defined) under the Lease, (iv) matters
created by, through or under Purchaser and (vi) the standard printed exclusions
from coverage (collectively, "Permitted Exceptions") ("Title Policy").
D. Survey. No later than two (2) business days prior
------
to the Closing, Seller shall deliver to Purchaser an updated version of the
survey prepared by National Survey Service as its order number N117576
("Survey"). The Survey shall be dated as of a date after the date hereof,
certified to Purchaser and Title Company and show any change from the Survey
dated as of January 22, 1993 previously delivered by Seller to Purchaser.
6. Documents to be Delivered by Seller at Closing.
----------------------------------------------
A. Seller's Closing Documents. Seller shall deliver
--------------------------
to Escrowee, pursuant to the Escrow, on or before the Closing Date, the
following documents, all of which shall be subject to Purchaser's prior review
and approval as to form, scope and substance, to the extent the form is not
attached as an exhibit to this Agreement, the delivery of all of which shall be
a specific condition to Closing:
(i) The Deed;
(ii) The Title Policy or an irrevocable commitment of
the Title Company to issue same;
(iii) A bill of sale executed by Seller in the form of
Exhibit "F" attached hereto and made a part hereof;
-----------
(iv) An original executed assignment and assumption of
that certain Lease dated October 31, 1994 ("Lease") by and between Seller
and GATX Logistics ("Tenant), in the form of Exhibit "G" attached
-----------
hereto and made a part hereof ("Assignment of Lease");
(v) A non-foreign certificate in accordance with the
provisions of Section 18 hereof;
(vi) Tenant's insurance certificate required under the
Lease;
(vii) A certificate from Seller stating that the
representations and warranties set forth in Section 8 are true and
correct as of the date of Closing in the form of Exhibit "H" attached
-----------
hereto and made a part hereof;
(viii) An original executed assignment of the Intangible
Property in the form of Exhibit "I" attached hereto and made a part
-----------
hereof ("Assignment of Intangible Property");
4
<PAGE>
(ix) A certificate of Seller certifying to Purchaser
(a) an original copy of the Lease, and (b) copies of all Intangible
Property, if any, were delivered to Purchaser as of the Closing Date, in
the form of Exhibit "J" attached hereto and made a part hereof;
-----------
(x) ALTA statement;
(xi) Personal "GAP" undertaking of Seller;
(xii) Attornment letter executed by Seller addressed to
Tenant in the form of Exhibit "K" attached hereto and made a part
-----------
hereof;
(xiii) Such proof of Seller's authority and
authorization to enter into this Agreement and perform Seller's
obligations under this Agreement as may be reasonably required by
Purchaser and/or Title Company;
(xiv) An estoppel certificate of Tenant in the form of
Exhibit "L" attached hereto and made a part hereof or if Tenant
-----------
refuses to execute and deliver an estoppel certificate in said form, an
estoppel certificate in the form of the estoppel certificate described in
Section 25 of the Lease; and
(xv) Such other documents as Purchaser may reasonably
request of Seller upon three (3) business days notice to enable Purchaser
to consummate the transaction contemplated by this Agreement; provided
none of said additional documents imposes any cost, liability or
obligation upon Seller not otherwise specifically imposed upon Seller
pursuant to the express terms of this Agreement.
B. Purchaser's Closing Documents. Purchaser shall
-----------------------------
deliver to Escrowee pursuant to the Escrow, on or before the Closing Date, the
following monies and documents, the delivery of all of which shall constitute a
specific condition to Closing.
(i) The cash portion of the Purchase Price, plus
Purchaser's share of Closing costs pursuant to the terms of this
Agreement;
(ii) Original executed counterpart of the Assignment
of Lease;
(iii) Original executed counterpart of the Assignment
of Intangible Property;
(iv) Proof of Purchaser's authority and authorization
to enter into this Agreement and perform Purchaser's obligations under
this Agreement as may be reasonably required by Purchaser and/or Title
Company; and
(v) The Ahern Letter (defined below)
(vi) Such other documents as Seller may reasonably
request of Purchaser upon three (3) business days notice to enable Seller
to consummate the
5
<PAGE>
transaction contemplated by this Agreement, provided none of said
additional documents impose any cost, liability or obligation upon
Purchaser not otherwise specifically imposed upon Purchaser pursuant to
the express terms of this Agreement.
C. Joint Closing Documents. Each of Seller and
-----------------------
Purchaser shall deliver to Escrowee, pursuant to the Escrow, and the parties
hereby covenant and agree to deliver to Escrow on or before the Closing Date,
the mutual delivery of which shall be a specific condition to Closing:
(i) Three (3) copies of the Closing Statement,
prepared in strict accordance with Section 10 hereof;
(ii) To the extent required, state, county and
municipal transfer tax declarations; and
(iii) A joint direction to Escrowee to deposit the
Earnest Money into the Escrow.
7. Inspection Period.
-----------------
A. Purchaser, its agents, representatives and employees
may, during the period commencing as of the later date in which either
Purchaser or Seller execute this Agreement as set forth next to each
party's signatures contained below ("Effective Date") and expiring as of
5:00 p.m. (c.s.t.) on April 1, 1996 the Effective Date (the "Inspection
Period"), make soil and engineering tests, inspect and audit the Project
and all Property Information, including, without limitation, all records
and books of Seller with respect thereto for such purposes as Purchaser
may require and Seller shall provide Purchaser and its agents and
representatives full, free and complete access with respect thereto. At
Purchaser's request, and to the extent required, upon reasonable notice
to Tenant in accordance with the Lease, Seller shall provide Purchaser
and its representatives full and complete access to the Project and
afford Purchaser the opportunity to discuss the Project and the operation
thereof with the Seller's employees and with the Tenant under the Lease
at such times as Purchaser may request. Purchaser shall use its best
efforts to minimize any interference with the use and operation of the
Property by Purchaser and Tenant during such inspection. Purchaser
hereby agrees to indemnify, defend, (which shall include the obligation
to pay all reasonable attorney's fees and costs) and hold Seller and
Tenant harmless from and against all liability (including, without
limitation, any fines, penalties or claims of any sort whatsoever) and
cost caused by the actions of Purchaser, its agents and representatives
in performing said inspection. Notwithstanding the foregoing, Purchaser
shall not have any liability hereunder whatsoever (i) as a result of its
discovery of any hazardous substance during the course of its
investigation or (ii) for the release of any hazardous substance which
Seller would have been obligated by law to remediate if the existence of
such hazardous substance had been known except to the extent such release
was exacerbated or in any way contributed to by Purchaser or its agents.
Upon receipt of any analytical result of any environmental medium which
indicates any detected contamination, Purchaser agrees to promptly notify
Seller of any such analytical result.
6
<PAGE>
B. Notwithstanding anything in this Agreement to the
contrary, if, for any reason whatsoever in Purchaser's sole discretion,
Purchaser is not satisfied with the condition of the Project, or any part
thereof, or with the Property Information, or with the financial or
physical feasibility of ownership of the Project and any proposed plans
for the rehabilitation and renovation of same, then in such event, the
right to terminate this Agreement by written notice to Seller given on or
before the expiration of the Inspection Period. Upon any termination of
this Agreement by Purchaser pursuant to this Section 7.B., all Earnest
Money shall be immediately paid to Purchaser.
8. Representations and Warranties of Seller. In order to
----------------------------------------
induce Purchaser to enter into this Agreement, Seller hereby represents and
warrants to Purchaser as follows, and all of the foregoing and following
representations and warranties shall be true and correct as of the Closing Date
(and the truth and accuracy of which shall constitute a condition to the
disbursement of the Purchase Price in accordance with the terms of the Escrow
and this Agreement):
(1) Seller is not a party to any contract, agreement
or commitment to sell, convey, assign, transfer, provide rights of
first refusal or other similar rights or otherwise dispose of any
portion or portions of the Project. Neither Seller nor any person
or entity claiming by, through or under Seller has or will have, at
any time or times prior to the Closing, done or suffered anything
whereby any lien, encumbrance, claim or right of others has been or
will be created on or against the Project or any part thereof or
interest therein, except for the Permitted Exceptions or any of the
foregoing created by the actions or failure to act of, by, through
or under Tenant.
(2) As of Closing, except as created by this
Agreement, Seller shall not have caused any obligations or
liabilities of any kind or nature whatsoever, actual or contingent,
including, but not limited to, any tax liabilities, contract
liabilities or tort liabilities for which or to which Purchaser or
the Project will be liable or subject, except for non-delinquent
obligations and liabilities accrued and thereafter accruing under
the Permitted Exceptions.
(3) This Agreement has been duly authorized and
executed on behalf of Seller and constitutes a valid and binding
agreement, enforceable in accordance with its terms. Seller has
obtained or will obtain prior to Closing all consents, releases and
permissions and given all required notifications, including, but
not limited to, compliance with any applicable Bulk Sales Act,
related to the transactions herein contemplated and required under
any covenant, agreement, encumbrance, law or regulation to which
Seller is a party or by which Seller is bound.
(4) Seller has not received any written notice of the
existence of any fact, condition or proceeding which would result
in the termination or impairment of the furnishing of or an
increase in rates for services to the Project of water, sewer, gas,
electric, telephone, drainage and other such utility services.
7
<PAGE>
(5) Seller has not entered into any Project Contracts
which will survive the Closing.
(6) There are no unsatisfied written requests for
repairs, restorations or improvements from any person, entity or
authority, including, but not limited to, Tenant, any lender,
insurance carrier or government authority. Seller has not received
any written notice of, any claims of any governmental agency to the
effect that the construction, operation or use of any of the
Project is in violation of any applicable law, ordinance, rule,
regulation or order or that any such claim or any investigation
with respect thereto is under consideration.
(7) Seller has not received any written notice that
any Permitted Exceptions violates any applicable state, federal or
local law, rule or regulation.
(8) To the actual knowledge of Seller, there is no
litigation pending and Seller has not received a written complaint
or letter from any party asserting a complaint against the Project
to which Seller is a party, except for Alvaro Torres vs. GATX
Logistics, et al. and George Salazar vs. R. Gorgol Roofing,
---
Inc. et al..
---
(9) Seller does not own any Personal Property
relating to the Project other than such plans, surveys and reports,
copies of which have been delivered to Purchaser pursuant to the
terms of this Agreement.
(10) Seller has no actual knowledge of and has not
received any written notice of any material, physical or mechanical
defects in the condition of the Building, including, but not
limited to, the roofs, exterior walls or structural components of
the Building and the heating, air conditioning, plumbing,
ventilating, elevator, utility, sprinkler and other mechanical and
electrical systems, apparatus and appliances located on the
Building which would not be apparent to Purchaser in its inspection
of the Building.
(11) Seller has received no written notice of any
special assessments with respect to the Project or any part
thereof, nor has Seller received any written notice of any special
assessments being contemplated, except as set forth in letter dated
March 19, 1996 from the Village of Hodgkins to Ms. Lechi Hatfield.
(12) Seller has no actual knowledge that any portion
of any Building has flooded within the past five (5) years.
(13) Seller has not received any written requests,
applications or notices of proceedings to alter or restrict the
zoning or other use restrictions applicable to the Project. Seller
has received no written notice from any municipal, state, federal
or other governmental authority of zoning, building, fire, water,
use, health, environmental or other statute, ordinance, code or
regulatory
8
<PAGE>
violations issued in respect of the Project which have not been
heretofore corrected. The conveyance of the Project will include
all rights of Seller, if any, to the use of any off-site facilities
necessary to ensure compliance with all such statutes, ordinances,
codes and regulations.
(14) Seller has not received any written notice from
any insurance carrier of defects or inadequacies in the Project
which if not corrected would result in termination of insurance
coverage, increase its cost or otherwise affect the insurability of
the Project.
(15) Seller is now solvent and will be solvent at the
Closing. The transaction herein described is not part of a
leveraged buy-out or other transaction relating to the sale of
Seller.
(16) The Illinois Responsible Transfer Act of 1988,
765 ILCS, 90/1 et seq., does not apply to the transfer
-------
contemplated herein.
(17) Seller has furnished Purchaser with a true and
complete copy of the Lease and amendments thereto and modifications
thereof, affecting the Project. Except as otherwise disclosed in
writing to Purchaser at the end of Exhibit "C" attached hereto:
(i) the Lease is in effect and the term of the same and the
obligation to pay rent thereunder has commenced and the tenant
thereunder is in full possession thereof and all tenant
improvements required under the provisions thereof to be
constructed by the landlord are completed; (ii) Tenant has not
prepaid any rent or other charges; (iii) Seller has not received
any written notice from Tenant that Seller is in default under the
Lease and to the actual knowledge of Seller, the Lease is free from
default by the landlord; (iv) to the actual knowledge of Seller,
Tenant is not in default under the Lease and no circumstance exists
which with notice or the passage of time or both, would give rise
to such a default; (v) except as set forth in the Lease, Tenant is
not entitled to any rebate, rental concession, free rent period or
set off under the Lease and Tenant has not made any written claim
against Seller or the Project under the Lease; (vi) all brokerage
commissions with respect to the Leases have been paid in full and
there are no commissions payable with respect to renewals or
extensions of the Lease; (vii) neither Seller nor any agent of
Seller has executed any exclusive leasing brokerage agencies;
(viii) there are no unsatisfied obligations wherein rent and other
obligations of Tenant in other buildings assumed by the landlord or
obligations imposed upon the landlord to take back, sublease or
relet Tenant's space or any portion thereof in the Project; (ix)
the Tenant does not have a security deposit; and (x) except as set
forth in the Lease, the Lease does not contain any option to
purchase or grants Tenant any right of refusal or option to
purchase.
(18) Seller has not entered into any contracts for
material construction or repair or capital replacements to the Real
Property during the two (2) years immediately preceding the date
hereof.
9
<PAGE>
All references contained in this Agreement to the "knowledge",
"best knowledge" or "actual knowledge" of Seller shall deem to mean the
knowledge of John J. Park with no constructive or imputed knowledge. At the
time of the Closing, Purchaser shall deliver a letter ("Ahern Letter") to
Seller indicating whether or not Paul Ahern, Acquisitions Manager of Purchaser,
has actual knowledge (with no constructive or imputed knowledge) of any fact
which would indicate that any of the representations of Seller in this
Agreement are incorrect.
9. Conditions Precedent to Closing.
-------------------------------
A. In addition to any conditions provided in other
provisions of this Agreement, Purchaser's obligation to purchase the Project is
and shall be conditioned on the following:
(1) The due performance by Seller of each and every
covenant, undertaking and agreement to be performed by it hereunder and
the truth of each representation and warranty made in this Agreement by
Seller at the time as of which the same is made and as of the Closing as
if made on and as of the Closing.
(2) That at no time prior to the Closing shall any of the
following have been done by or against or with respect to Seller and/or
Tenant: (i) the commencement of a case under Title 11 of the U.S. Code,
as now constituted or hereafter amended, or under any other applicable
federal or state bankruptcy law or other similar law; (ii) the
appointment of a trustee or receiver of any property interest; or (iii)
an assignment for the benefit of creditors.
(3) The existence of any Unpermitted Exception.
(4) That between the date of the execution of this
Agreement and the Closing, Seller shall: (i) not, without first
obtaining the written consent of Purchaser, enter into any contracts,
agreements or leases pertaining to the Project except for those which
will be terminated prior to Closing; (ii) not amend, modify or terminate
the Lease; (iii) not convey any Intangible Property or remove from the
Project any of the Personal Property; and (iv) remedy all violations of
laws, ordinances, orders or the requirements relating to the Project
which are the obligation of the Seller to remedy under the Lease and
which have been imposed by any governmental authority having jurisdiction
over, or affecting all or any part of the Project and for which Seller
has received written notice with respect thereto and provide Purchaser
evidence of same.
(5) The delivery of the estoppel certificate in the form of
Exhibit "L".
-----------
B. Either party may at any time or times, at its election,
waive any of the conditions to its obligations hereunder, but any such waiver
shall be effective only if contained in a writing signed by such party. No
such waiver shall reduce the rights or remedies of a party by reason of any
breach by the other party (but if a condition is waived, the party waiving the
same may not rescind this Agreement on the basis of the failure of such waived
condition). In the event that for any reason any item required to be delivered
to a party by the other party hereunder shall not be delivered when required,
then such other party shall nevertheless remain obligated to deliver the same
to the first party, and nothing (including, but not limited to, the closing of
the transaction hereunder) shall be deemed a waiver by the
10
<PAGE>
first party of any such requirement. The failure of any of the aforesaid
conditions shall entitle Purchaser, at its option, to cancel and terminate this
Agreement without liability and upon which this Agreement shall be null and
void.
10. Adjustments.
-----------
A. General. Proration of rentals, revenues and other
-------
income, if any, from the Project and taxes, assessments, and other expenses, if
any, affecting the Property shall be prorated as of 11:59 p.m. on the day prior
to the Closing Date. It is agreed that the Closing Date shall be an income and
expense date for Purchaser. There shall be no proration of any insurance
premiums with respect to the Property, nor any assumption of insurance coverage
by Purchaser.
B. Rentals. The term "rentals", as used herein,
-------
includes fixed monthly rentals, additional rentals, escalation rentals,
operating cost pass-throughs and other sums and charges payable by Tenant under
the Lease. Purchaser shall receive all rentals accruing on and after the
Closing Date and Seller shall receive all rentals accruing prior to the closing
Date.
C. Prepaid Rentals. Prepaid rentals, if any,
---------------
including Tenants' payments to Seller for Tenant's share of real property taxes
and assessments, insurance premiums, common area maintenance and operation and
utilities received by Seller, if any, which are unexpended as of the Closing
Date shall be credited to Purchaser as of the Closing Date. Purchaser shall be
credited and Seller shall be debited with any amount equal to all rent
abatements and concessions for periods on and after the Closing Date pursuant
to the Lease, if any.
D. Operating Expenses. All utility services charges
------------------
for electricity, heat and air conditioning service, other utilities, common
area maintenance, taxes other than real estate taxes such as rental taxes, and
all expenses incurred in operating the Project that Seller pays, if any, as
opposed to Tenant and any other costs incurred in the ordinary course of
business or the management and operation of the Project not the obligation of
Tenant to pay under the Lease, if any, shall be prorated on an accrual basis.
Seller shall pay all such expenses, if any, that accrue prior to the Closing
Date and Purchaser shall pay all such expenses accruing on and after the
Closing Date.
E. Leasing Commissions and Tenant Finish. Purchaser
-------------------------------------
shall be credited and Seller shall be debited for all leasing commissions and
the costs of all tenant finish work with respect to the Lease, whether now due
or to become due prior to, on or after the Closing Date, if any.
F. Tenant Deposits. Purchaser shall be credited and
---------------
Seller shall be debited with an amount equal to all tenant deposits, if any,
being held by Seller or any other person under the Lease and any interest, if
any, required to be paid on account thereof.
G. Method of Proration. Except as expressly provided
-------------------
herein, all apportionments shall be made in accordance with customary practice
in Cook County, Illinois. The parties agree to cause a schedule of tentative
adjustments to be prepared prior to the Closing Date. Such adjustments, if an
to the extent known and agreed upon as of the Closing Date, shall be paid by
Purchaser to Seller (if the prorations result in a net credit to the Seller) or
by Seller to Purchaser (if the prorations result in a net credit to Purchaser),
by increasing or reducing the amount to be paid by Purchaser at Closing.
Purchaser and Seller agree the intent of this provisions is to allocate the
income and expenses
11
<PAGE>
attributable to the Project in a fair, just and equitable manner, and the
parties agree in the event of special circumstances not specifically covered
herein, such equitable principles shall guide the parties in reaching a fair
resolution. All prorations hereunder shall be final, unless otherwise
expressly provided hereunder.
11. Closing Costs. Seller shall bear the cost of the Title
-------------
Policy, the cost to record any instruments necessary to clear Seller's title,
one-half the cost of the Escrow and all state and county transfer taxes.
Purchaser shall bear the cost of any recording fees with respect to the Deed
and one-half the cost of the Escrow. The cost of any municipal transfer taxes
applicable to this transaction shall be paid for the party made responsible for
the payment of the same by the applicable ordinance with respect thereto. All
other costs and expenses in connection with the transaction contemplated by
this Agreement shall be borne by Purchaser and Seller in the manner in which
such cost and expenses are customarily allocated between the parties at
closings of real property similar to the Project in the Cook County, Illinois
area. Except as provided in Section 29 below, each party hereto shall pay its
own attorneys' fees incurred with respect to the preparation and negotiation of
this Agreement and the closing of the transaction contemplated hereby.
12. Damage or Destruction to Project.
--------------------------------
A. In the event that between the date of this Agreement
and the date of Closing, all or any portion of the Project is damaged or
destroyed by fire or other casualty, Purchaser shall elect to either:
(1) terminate this Agreement without cost, obligation
or liability on Purchaser's part, in which event all rights and
obligations of the parties hereunder shall cease; or
(2) consummate the transaction contemplated hereby,
in which event all insurance proceeds payable as a result of such
damage or destruction shall be assigned to Purchaser at Closing.
B. Purchaser shall notify Seller within ten (10) days
after receipt of notice from Seller of such damage or destruction of its
election. If Purchaser fails to notify Seller of its election within
said 10-day period, such failure shall constitute an election to
terminate this Agreement as aforesaid. Closing shall be adjusted to
allow for such election.
13. Condemnation. In the event that between the date of this
------------
Agreement and the date of Closing any condemnation or eminent domain
proceedings are initiated which might result in the taking of any part of the
Building or the Land, Purchaser, at its sole option, may elect to terminate
this Agreement without costs, obligation or liability on the part of Purchaser,
in which event all rights and obligations of the parties hereunder shall cease.
In the event Purchaser elects not to so terminate this Agreement, Seller shall
assign to Purchaser at Closing all of Seller's title and interest in and to any
award pertaining to the Project made in connection with such condemnation or
eminent domain proceedings. Purchaser shall notify Seller within ten (10) days
after its receipt of notice of such condemnation or eminent domain proceedings
whether it elects to exercise its right to terminate. If Purchaser fails to
notify Seller of its election within said 10-day period, such failure shall
constitute an election to terminate this Agreement aforesaid. Closing shall be
adjusted to allow for such election.
12
<PAGE>
14. Remedies.
--------
A. If prior to the Closing, Seller should breach any of
its covenants, conditions, representations or warranties contained in this
Agreement or should fail to consummate the sale contemplated herein for any
reason other than Purchaser's default, Purchaser may, as Purchaser's sole
remedies, upon five (5) days written notice to Seller, if such breach or
failure is not cured within such five-day period, in addition to all remedies
contained elsewhere in this Agreement (i) terminate this Agreement, without
further liability on Purchaser's part; (ii) collect money damages from Seller
up to $250,000.00; or (iii) enforce specific performance of this Agreement. If
Purchaser discovers within six (6) months after the Closing that Seller
breached any of its representations or warranties contained in this Agreement
Purchaser may collect money damages from Seller up to $250,000.00.
B. If Purchaser should breach any of its covenants
contained in this Agreement (and Seller shall not be in default hereunder),
Seller may, as Seller's sole remedies, upon five (5) days written notice to
Purchaser, if such breach is not cured within such five-day period, (i)
terminate this Agreement without further liability on Seller's part and retain
the Earnest Money as liquidated damages, and not as a penalty, or (ii) enforce
specific performance of this Agreement.
15. Brokers. The parties mutually warrant and represent to
-------
the other that neither has authorized any broker to act on its behalf in
respect of the transactions contemplated hereby other than Darwin Realty &
Development Corporation ("Darwin") and that neither has dealt with a broker in
connection therewith other than Darwin. Each of the parties shall indemnify
and save the other harmless from any claim by any broker or other person for
commissions or other compensation for bringing about the transactions
contemplated hereby where such claim is based on the purported employment or
authorization of such broker or other person by such party. Seller shall pay
the commission due to Darwin and shall cause Darwin to provide a lien waiver
with respect thereto at Closing.
16. Environmental Matters.
---------------------
A. The term "Hazardous Materials" shall mean any
substance, material, waste, gas or particulate matter which is regulated by any
local governmental authority, the State of Illinois, or the United States
Government, including, but not limited to, any material or substance which is
(i) defined as a "hazardous waste," "hazardous material," "hazardous
substance," "extremely hazardous waste," or "restricted hazardous waste" under
any provision of Illinois law, (ii) petroleum, (iii) asbestos, (iv)
polychlorinated biphenyl, (v) radioactive material, (vi) designated as a
"hazardous substance" pursuant to Section 311 of the Clean Water Act, 33 U.S.C.
(S) 1251 et seq., (33 U.S.C. (S) 1317), (vii) defined as a "hazardous waste"
pursuant to Section 1004 of the Resource Conservation and Recovery Act, 42
U.S.C. (S) 6901 et seq. (42 U.S.C. (S) 6903), or (viii) defined as a "hazardous
substance" pursuant to Section 101 of the Comprehensive Environmental Response,
Compensation, and Liability Act, 42 U.S.C. (S) 9601 et seq. (42 U.S.C. (S)
9601). The term "Environmental Laws" shall mean all statutes specifically
described in the foregoing grammatical sentence and all federal, state and local
environmental, health and safety statutes, ordinances, codes, rules,
regulations, orders and decrees regulating, relating to or imposing liability or
standards concerning or in connection with Hazardous Materials.
B. Seller represents and warrants that as of the date hereof
(which representation and warranty shall remade as of the Closing Date): (i) it
has not received any written notice indicating that the Project is not in
compliance with any Environmental Laws; (ii) no written notice,
13
<PAGE>
demand, claim or other communication has been given to or served on Seller,
from any entity, governmental body or individual claiming any violation of any
Environmental Law or demanding payment, contribution, indemnification, remedial
action, removal action or any other action or inaction with respect to any
actual or alleged environmental damage or injury to persons, property or
natural resources (any of the foregoing, whether now existing or hereafter
brought, is herein called a "Claim") which remains uncured except as disclosed
to Purchaser on Exhibit "M" attached hereto and by this reference made a part
hereof, and to Seller's actual knowledge, no basis for any Claim exists; (iii)
to Seller's actual knowledge, no underground storage tanks are currently
located on the Project; (iv) to Seller's actual knowledge, the soil, surface
water and ground water of, under, or on the Project are free from any Hazardous
Material; (v) to Seller's actual knowledge, except as disclosed in writing
by Seller to Purchaser prior to the date hereof, no Hazardous Material has been
discharged, dispersed, released, disposed of, or allowed to escape on, under or
in the Project; (vi) to Seller's actual knowledge, no asbestos or
asbestos-containing materials have been installed, used, incorporated into or
disposed of on the Project; (vii) to Seller's actual knowledge, no
polychlorinated biphenyls ("PCBs") are or ever have been located on, in, or
used in connection with the Project; and (viii) to Seller's actual knowledge,
no investigation, administrative order, administrative order by consent,
consent order, agreement, litigation or settlement is proposed or in existence,
with respect to or arising from the presence of any Hazardous Material or the
transport of Hazardous Material with respect to the Project.
17. Entire Agreement. It is understood and agreed that all
----------------
understandings and agreements heretofore made between the parties hereto are
merged in this Agreement, the exhibits annexed hereto and the instruments and
documents referred to herein, which alone fully and completely express their
agreements, and that neither party is relying upon any statement or
representation, not embodied in this Agreement, made by the other. Each party
expressly acknowledges that, except as expressly provided in this Agreement,
the other party and the agents and representatives of the other party have not
made, and the other party is not liable for or bound in any manner by, any
express or implied warranties, guaranties, promises, statements, inducements,
representations or information pertaining to the transactions contemplated
hereby. The preparation of this Agreement has been a joint effort of the
parties hereto and the resulting documents shall not, solely as a matter of
judicial construction, be construed more severely against one of the parties
than the other.
18. Non-Foreign Certificate. Seller shall provide Purchaser,
-----------------------
on or before the Closing Date, with a non-foreign certificate in the form of
Exhibit "O" attached hereto and by this reference made a part hereof. In
- -----------
the event that Seller does not furnish Purchaser with said certificate, or if
Purchaser has reason to believe that said certificate would be wholly or
partially false if given and so notifies Seller, in writing, on or before the
Closing Date, Purchaser shall be entitled to withhold up to ten (10%) percent
of the Purchase Price in an escrow account to be held by Title Company until
such time as Seller furnishes Purchaser with a qualifying statement from the
Internal Revenue Service sufficient to relieve Purchaser of any and all
withholding obligations under federal law, or until Purchaser is required to
deliver said funds to the Internal Revenue Service, whichever first occurs.
19. Modifications. No modification, amendment, discharge or
-------------
change of this Agreement, except as otherwise provided herein, shall be valid
unless the same is in writing and signed by the party against which the
enforcement of such modification, amendment, discharge or change is sought.
14
<PAGE>
20. Notices. All notices, demands, requests and other
-------
communications under this Agreement shall be in writing and shall be deemed
properly served when sent by facsimile (with proof of delivery), received if
delivered by hand or expedited messenger service with proof of receipt to the
party to whose attention it is directed or when received or refuses to accept
receipt if sent, postage prepaid, by registered or certified mail, return
receipt requested, postage prepaid, addressed as follows:
If intended for Purchaser: Mr. Michael M. Mullen
Executive Vice President
Centerpoint Corporation
401 North Michigan Avenue
Chicago, Illinois 60611
Facsimile 312-456-7696
with a copy to: Mark S. Richmond, Esq.
Katz Randall & Weinberg
333 West Wacker Drive
Suite 1800
Chicago, Illinois 60606
Facsimile 312-807-3903
If intended for Seller: Mr. John J. Park
W.P. Carey & Company
50 Rockefeller Plaza
New York, New York 10020
Facsimile 212-977-3022
with a copy to: Stephen Lyons, Esq. and
Lloyd C. Birnbaum, Esq.
Reed Smith Shaw & McClay
2500 One Liberty Place
Philadelphia, Pennsylvania 19103
Facsimile 215-851-1420
or such other address or to such other party which any party entitled to
receive notice hereunder designates to the others in writing by a notice duly
given hereunder.
21. Governing Law and Interpretation. The validity, meaning
--------------------------------
and effect of this Agreement shall be determined in accordance with the laws of
the State of Illinois applicable to contracts made and to be performed in that
state. The terms "hereby," "hereof," "hereto," "herein," "hereunder" and any
similar terms shall refer to this Agreement, and the term "hereafter" shall
mean after, and the term "heretofore" shall mean before, the date of this
Agreement. Words of the masculine, feminine or neuter gender shall mean and
include the correlative words of other genders, and the words importing the
singular number shall mean and include the plural number and vice versa. Words
importing persons shall include firms, associations, partnerships (including
limited partnerships), trusts, corporations and other legal entities, including
public bodies, as well as natural persons. The terms "include," "including"
and similar terms shall be construed as if followed by the phrase "without
being limited to."
15
<PAGE>
22. Survival. All representations and warranties contained
--------
in this Agreement or in any of the documents to be delivered by Seller to
Purchaser at Closing shall be deemed remade as of the date of Closing and
survive the Closing for a period of six (6) months. This Agreement shall not
be cancelled or merged into the Deed on the Closing. Each and every warranty
and representation of Seller and Purchaser shall be deemed to have been relied
upon by the other, notwithstanding any investigation Purchaser may have made
with respect thereto, or any information developed by or made available to
Purchaser prior to the Closing and consummation of this transaction.
23. Counterparts. This Agreement may be executed in two or
------------
more counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
24. Captions. The captions in this Agreement are inserted
--------
for convenience of reference only and in no way define, describe or limit the
scope or intent of this Agreement of any of the provisions thereof.
25. Binding Effect. This Agreement shall be binding upon and
--------------
shall inure to the benefit of the parties hereto and their respective
successors and assigns.
26. Partial Invalidity. Seller and Purchaser intend and
------------------
believe that each provision in this Agreement comports with all applicable
local, state and federal laws and judicial decisions. However, if any
provision or provisions in this Agreement which is or are not materially
related to the liability of the parties hereto or to the conditions to
Purchaser's obligations to consummate the transaction contemplated herein is
found by a court of law to be in violation of any applicable local, state or
federal ordinance, statute, law, administrative or judicial decision, or public
policy, and if such court should declare such portion, provision or provisions
of this Agreement to be illegal, invalid, unlawful, void or unenforceable as
written, then it is the intent both of Seller and Purchaser that such portion,
provision or provisions shall be given force to the fullest possible extent
that they are legal, valid and enforceable, that the remainder of this
Agreement shall be construed as if such illegal, invalid, unlawful, void or
unenforceable portion, provision or provisions were not contained therein, and
that the rights, obligations and interest of Purchaser and Seller under the
remainder of this Agreement shall continue in full force and effect. If any
provision or provisions which is or are material as set forth above are found
to be illegal, invalid, unlawful, void or unenforceable as written, this
Agreement may, at the option of either party, be terminated without further
obligation to either party.
27. Illinois Income Tax Withholding. At least five (5) days
-------------------------------
prior to the Closing, Seller shall deliver to Purchaser evidence that the sale
of the Project to Purchaser hereunder is not subject to, and does not subject
Purchaser to liability under, Chapter 120, Section 9-902(d) of the Illinois
Revised Statutes ("Act") and that at least ten (10) days prior to the Closing,
Seller shall have notified the Illinois Department of Revenue (herein referred
to as the "Department") of the intended sale and requested the Department to
make a determination as to whether the Seller has an assessed, but unpaid,
amount of tax, penalties, or interest under the Act. Seller agrees that
Purchaser may, at the Closing, deduct and withhold from the proceeds that are
due Seller the amount necessary to comply with the withholding requirements
imposed by the Act. Purchaser shall deposit the amount so withheld in a
separate escrow with the Title Company pursuant to the terms and conditions
acceptable to Seller and Purchaser, but in any event, complying with the Act.
16
<PAGE>
28. Time for Performance. Time is of the essence of this
--------------------
Agreement. Whenever under the terms of this Agreement the time for performance
falls on a Saturday, Sunday or one of the days described in 205 ICLS 630/17(a)
other than a day as provided in 205 ICLS 630/17(b), such time for performance
shall be on the next day that is not a Saturday, Sunday or Legal Holiday. In
computing any period of time pursuant to this Agreement, the day of the act or
event from which the designated period of time begins to run will not be
included.
29. Professional Fees. In the event of the bringing of any
-----------------
action or suit by a party hereto against another party hereunder by reason of
any breach of any of the covenants, agreements or provisions on the part of the
other party rising out of this Agreement, then in that event the prevailing
party shall be entitled to have and recover of and from the other party all
costs and expenses of the action or suit, including actual attorneys' fees,
accounting and engineering fees, and any other professional fees resulting
therefrom.
30. Possession. Possession of the Project, subject to the
----------
rights of Tenant under the Lease, shall be delivered to Purchaser on the
Closing Date.
31. Assignment. The parties hereto agree Purchaser shall
----------
have the right, prior to the Closing Date and without the consent of Seller, to
assign this Agreement to an entity controlled directly or indirectly by
Purchaser, however, Purchaser shall not be relieved of any obligations as a
consequence of such assignment. Seller shall not assign this Agreement,
without the prior written consent of Purchaser.
32. Limitation of Liability. Anything contained herein to
-----------------------
the contrary notwithstanding, any claim based on or in respect of any liability
of Seller under this Agreement shall be enforced only against the assets of
Seller and not against any other assets, properties or funds of (a) any general
partner, limited partner, employee or agent of Seller, (b) any predecessor
partnership or corporation (or other entity) of Seller or any predecessor or
successor of their general partners, shareholders, officers, directors,
employees or agents, or (c) Carey Corporate Property, Inc., Carey Property
Advisors, Carey Fiduciary Advisors, Inc., W. P. Carey & Co., Inc., and any
Person affiliated with any of the foregoing, or any director, officer, employee
or agent of any thereof.
IN WITNESS WHEREOF, the parties hereto have executed this Contract
as of the day and year first above written.
PURCHASER: CENTERPOINT PROPERTIES CORPORATION, a
- ---------
Maryland corporation
Dated: March ___, 1996
By:
-------------------------------
Name:
------------------------
Title:
-----------------------
By:
-------------------------------
Name:
------------------------
Title:
-----------------------
17
<PAGE>
SELLER: CORPORATE PROPERTY ASSOCIATES 5, a
- ------
California limited partnership
By: Carey Corporate Property, Inc.,
General Partner
Dated: March ___, 1996
By:
-------------------------------
Name:
------------------------
Title:
-----------------------
Attest:
By:
-------------------------------
Name:
------------------------
Title:
-----------------------
SCHEDULE OF EXHIBITS
- --------------------
EXHIBIT A - Legal Description
EXHIBIT B - Project Contracts
EXHIBIT C - Lease
EXHIBIT D - Earnest Money Escrow Agreement
EXHIBIT E - Permitted Exceptions
EXHIBIT F - Bill of Sale
EXHIBIT G - Assignment and Assumption of Leases
EXHIBIT H - Reaffirmation of Representations and Warranties
EXHIBIT I - Assignment of Intangible Property and Other Rights
EXHIBIT J - Seller's Certificate
EXHIBIT K - Attornment Letter
EXHIBIT L - Tenant Estoppel Certificate
EXHIBIT M - Environmental Issues
EXHIBIT N - Deed
EXHIBIT O - FIRPTA Certificate
18
<PAGE>
EXHIBIT "A"
LEGAL DESCRIPTION
-----------------
<PAGE>
EXHIBIT "B"
LIST OF PROJECT CONTRACTS
-------------------------
NONE
<PAGE>
EXHIBIT C
LEASE
-----
<PAGE>
EXHIBIT "D"
EARNEST MONEY ESCROW AGREEMENT
------------------------------
TO: Chicago Title and Trust Company
171 North Clark Street
Chicago, Illinois 60601
Attention: Nancy Castro
RE: Escrow Trust No. ______________
DATE: April ____, 1996
I. PARTIES
-------
A. Seller: Corporate Property Associates 5
------ 50 Rockefeller Plaza
New York, New York 10020
Attention: Mr. John J. Park
B. Purchaser: Centerpoint Properties
--------- 401 N. Michigan Ave.
Chicago, Illinois 60611
Attention: Mr. Michael Mullen
C. Escrow Holder: Chicago Title Insurance Company
------------- 171 North Clark Street
Chicago, Illinois 60601
Attention: Nancy Castro
II. PRELIMINARY STATEMENTS
----------------------
A. Concurrently with the execution and delivery of this Earnest Money
Escrow Agreement, Seller and Purchaser have executed and delivered a certain
Purchase and Sale Agreement ("Agreement"). Under the terms of the Agreement,
Seller has agreed to sell to Purchaser that certain parcel of land and
improvements thereon located in Hodgkins, Illinois.
B. Pursuant to Paragraph 2A. of the Agreement, Purchaser is required
to deposit with the Escrow Holder the sum of TWO HUNDRED FIFTY THOUSAND AND
NO/00 DOLLARS ($250,000.00) ("Earnest Money") to be held by Escrow Holder
pursuant to the terms and provisions of this Earnest Money Escrow Agreement.
C. Pursuant to Paragraph 7B of the Agreement, Purchaser has the right
to terminate the Agreement on or before April 1, 1996 and to have the Earnest
Money and interest earned thereon returned to Purchaser.
<PAGE>
III. DEPOSIT OF EARNEST MONEY; INVESTMENT DIRECTIONS
-----------------------------------------------
A. Concurrently herewith, Purchaser has deposited the Earnest Money
with the Escrow Holder in accordance with the Agreement.
B. Escrow Holder is hereby authorized and directed to invest the
Earnest Money or any portion thereof in accordance with the written direction
of Purchaser (or Purchaser's Counsel). Unless otherwise provided pursuant to
the provisions of Section IV hereof, such investment shall be for the benefit
of Purchaser. The Federal Taxpayer Identification Number of the Purchaser is
36-3910279.
IV. INSTRUCTIONS
------------
A. In the event Escrow Holder receives, on or prior to April 5, 1996,
from Purchaser a certification in the form attached hereto as Schedule 1, then
Escrow Holder is authorized and directed to return to Purchaser, within one (1)
business day thereafter, the Earnest Money, together with all interest earned
thereon.
B. Except as set forth in Paragraph IV.A. above, the Escrow Holder is
instructed to hold and invest the Earnest Money, together with all interest
earned thereon, until the Escrow Holder is in receipt of (i) a joint written
direction from Seller (or Seller's Counsel) and Purchaser (or Purchaser's
Counsel) or (ii) an order, judgment or decree addressed to Escrow Holder which
shall have been entered or issued by any court and which shall determine the
disposition of the Earnest Money and all interest earned thereon.
C. Any party delivering a notice required or permitted hereunder shall
simultaneously deliver copies of such notice to all parties listed in Section I
of this Earnest Money Escrow Agreement. All notices required herein shall be
either personally delivered, sent by certified or registered mail, postage
prepaid, return receipt requested, or sent by overnight courier and shall, in
all instances, be deemed to have been received upon delivery thereof.
D. Except as otherwise expressly set forth in this Earnest Money
Escrow Agreement, Escrow Holder shall disregard any and all notices or warnings
given by any of the parties hereto.
E. In case Escrow Holder obeys or complies with any order, judgment or
decree of any court with respect to the Earnest Money, Escrow Holder shall not
be liable to any of the parties hereto or any other person, firm or corporation
by reason of such compliance, notwithstanding any such order, judgment or
decree be entered without jurisdiction or be subsequently reversed, modified,
annulled, set aside or vacated. In case of any suit or proceeding regarding
this Earnest Money Escrow Agreement to which Escrow Holder is or may be at any
time a party, Seller and Purchaser shall each be liable for one-half of all
such costs, fees and expenses incurred or sustained by Escrow Holder and shall
forthwith pay the same to Escrow Holder upon demand; provided, however, that in
the event Escrow Holder is made a party to any suit or proceeding between
Seller and Purchaser, the prevailing party in such suit or proceeding shall
have no liability for the payment of Escrow Holder's costs, fees and expenses.
F. Escrow Holder is not to be held responsible for any loss of
principal or interest which may be incurred as a result of making the
investments or redeeming said investment for the purposes of this Earnest Money
Escrow Agreement.
2
<PAGE>
G. In no case shall the above mentioned deposits be surrendered except
(i) in the manner specifically described in this Earnest Money Escrow
Agreement; (ii) on an order signed by the Seller (or Seller's Counsel) and
Purchaser (or Purchaser's Counsel); or (iii) in obedience to the process of
order of a court as aforesaid.
H. All fees of Escrow Holder shall be charged one-half to Seller and
one-half to Purchaser.
I. Except as to deposits of funds for which Escrow Holder has received
express written direction from Purchaser (or Purchaser's Counsel) concerning
investment or other handling, the parties hereto agree that the Escrow Holder
shall be under no duty to invest or reinvest any deposits at any time held by
it hereunder; and, further, that Escrow Holder may commingle such deposits with
other deposits or with its own funds in the manner provided for the
administration of funds under Section-3 of the Illinois Banking and Finance Act
205 ICLS 620/2-8 and may use any part or all such funds for its own benefit
without obligation to any party for interest or earnings derived thereby, if
any, provided, however, nothing herein shall diminish Escrow Holder's
obligation to apply the fully amount of the deposits in accordance with the
terms of this Earnest Money Escrow Agreement.
J. Any order, judgment or decree requiring the Escrow Holder to
disburse the Earnest Money shall not be binding upon Purchaser or Seller as to
the ultimate disposition of the Earnest Money unless and until a final,
non-appealable order, judgment or decree is entered by a court having
jurisdiction thereof.
K. This Earnest Money Escrow Agreement and all provisions hereof shall
be binding upon and shall inure to the benefit of the parties hereto and their
respective legal representatives, successors and permitted assigns.
FOR SELLER:
Reed Smith Shaw & McClay
By:
-----------------------------
Attorney for Seller
FOR PURCHASER:
Katz Randall & Weinberg
By:
-----------------------------
Attorney for Purchaser
Accepted this ___ day of
April, 1996
Chicago Title and Trust Company
Escrow Holder
By:
-------------------------------------
Name: Nancy Castro
3
<PAGE>
SCHEDULE 1
----------
CERTIFICATION
-------------
The undersigned hereby certifies to Chicago Title and Trust Company, as
Escrow Holder under that certain Earnest Money Escrow Agreement dated April
____, 1996, Escrow Trust Number _____________, that the undersigned has elected
to terminate that certain Purchase Agreement dated March 28, 1996 by and
between CenterPoint Properties Corporation as Purchaser and Corporate Property
Associates 5 as Seller pursuant to Paragraph 7B. of the Purchase Agreement.
CENTERPOINT PROPERTIES CORPORATION, a
Maryland corporation
By:
-----------------------------------
Name:
-----------------------------
Title:
----------------------------
By:
-----------------------------------
Name:
-----------------------------
Title:
----------------------------
4
<PAGE>
EXHIBIT "E"
PERMITTED EXCEPTIONS
--------------------
1. RESERVATION OF MINERAL RIGHTS AS WELL AS RIGHTS TO METALLIC OR OTHER
SOLID MINERALS LYING NOT LESS THAN 100 FEET BELOW LAND IN FAVOR OF SANTA
FE LAND IMPROVEMENT COMPANY CONTAINED IN DOCUMENT 21144828. SAID
RESERVATION HOWEVER, LIMITS THE MEANS BY WHICH SAID RIGHTS MAY BE
EXERCISED
(AFFECTS PARCEL 2).
2. 20 FOOT UTILITY EASEMENT OVER THE SOUTHEAST LINE OF LAND RESERVED IN
WARRANTY DEED RECORDED JULY 18, 1972 AS DOCUMENT 21980477
NOTE: BUILDING LOCATED ON THE LAND ENCROACHES ONTO SAID EASEMENT
APPROXIMATELY 2.48 FEET TO 3.24 FEET FOR A DISTANCE OF 28.46 FEET
(AFFECTS PARCEL 3)
3. UTILITY EASEMENT 20 FEET IN WIDTH UPON AND LONG THE SOUTHEAST PROPERTY
LINE OF THE LAND AS EXCEPTED AND RESERVED UNTO SANTA FE LAND IMPROVEMENT
COMPANY, A CALIFORNIA CORPORATION, THE GRANTOR IN WARRANTY DEED TO
COUZENS WAREHOUSE AND DISTRIBUTORS INC., A CORPORATION OF ILLINOIS, DATED
NOVEMBER 28, 1972 AND RECORDED DECEMBER 1, 1972 AS DOCUMENT 22143892
(AFFECTS PARCEL 1)
4. UTILITY EASEMENT 20 FEET WIDE UPON AND ALONG THE SOUTHEAST PROPERTY LINE
OF THE LAND CREATED IN DEED FROM SANTA FE LAND IMPROVEMENT COMPANY TO
COUZENS WAREHOUSE AND DISTRIBUTORS INC., RECORDED AS DOCUMENT 21144828
(AFFECTS PARCEL 2)
5. RIGHT OF WAY FOR RAILROAD TRACKS LOCATED ALONG THE WESTERLY LINE OF THE
PROPERTY AS DISCLOSED BY SURVEY MADE BY NATIONAL SURVEY SERVICE INC.,
DATED APRIL 26, 1985, ORDER NO. 109259.
6. A 20 FOOT UTILITY EASEMENT ALONG THE SOUTHEAST SIDE OF THE LAND RESERVED
BY SANTA FE LAND IMPROVEMENT COMPANY, A CORPORATION OF CALIFORNIA, IN
DEED TO FREEWAY REALTY COMPANY, DALLAS, A PARTNERSHIP RECORDED MARCH 24,
1969 AS DOCUMENT 20790107, AND OVER THE SOUTHEAST 5 FEET TO THE VILLAGE
OF HODGKINS FOR SEWER PURPOSES AS CONTAINED IN
<PAGE>
GRANT DATED JANUARY 30, 1980 AND RECORDED JANUARY 31, 1980 AS DOCUMENT
25344926.
7. TERMS, PROVISIONS AND CONDITIONS RELATING TO THE EASEMENT DESCRIBED AS
PARCEL 5 CONTAINED IN THE INSTRUMENT CREATING SUCH EASEMENT.
8. EASEMENT IN, UPON, UNDER, OVER AND ALONG THE LAND TO INSTALL AND MAINTAIN
ALL EQUIPMENT FOR THE PURPOSE OF SERVING THE LAND AND OTHER PROPERTY WITH
ELECTRIC SERVICE, TOGETHER WITH RIGHT OF ACCESS TO SAID EQUIPMENT AS
CREATED BY GRANT TO THE COMMONWEALTH EDISON COMPANY RECORDED DECEMBER 19,
1977 AS DOCUMENT 24251543, OVER AND UPON THE NORTHEASTERLY 10 FEET AND
WESTERLY 10 FEET OF THE NORTHWESTERLY 180.0 FEET OF THE LAND.
(AFFECTS PARCEL 4).
9. APPARENT EASEMENT FOR OVERHEAD PIPES ALONG THE NORTH LINE OF THE LAND AS
DISCLOSED BY SURVEY BY NATIONAL SURVEY SERVICE INC., DATED APRIL 26, 1985
ORDER NO. 109259
(AFFECTS PARCEL 4)
10. THE COMMONWEALTH EDISON COMPANY TRANSFORMERS LOCATED ALONG THE
NORTHWESTERLY LINE OF THE LAND AND SOUTHEASTERLY PORTION OF THE LAND AS
DISCLOSED BY LETTER AND SURVEY FROM THE COMMONWEALTH EDISON COMPANY
(AFFECTS PARCEL 4)
11. WOOD SERVICE POLES AND OVERHEAD WIRES BELONGING TO THE COMMONWEALTH
EDISON COMPANY, A CORPORATION OF ILLINOIS, AS DISCLOSED BY SURVEY
PREMENTIONED AND LETTER FROM THE COMMONWEALTH EDISON COMPANY DATED
____________________.
12. ENCROACHMENT OF THE FENCE LOCATED MAINLY ON THE LAND OVER TO THE:
(A) SOUTHWESTERLY AND ADJOINING LAND BY APPROXIMATELY 2.78 FEET; (B) THE
NORTHERLY AND ADJOINING LAND BY 2.10 FEET;
(C) NORTHEASTERLY AND ADJOINING LAND BY 4.33 FEET TO 3.98 FEET
(D) SOUTHEASTERLY LAND BY .50 OF A FOOT
AS DISCLOSED BY PLAT OF SURVEY MADE BY NATIONAL SURVEY SERVICE INC.,
DATED APRIL 26, 1985 ORDER NO. N109259.
<PAGE>
EXHIBIT "F"
BILL OF SALE
-------------
CORPORATE PROPERTY ASSOCIATES 5, a California limited partnership
("Seller"), having its principal place of business at 50 Rockefeller Plaza, New
York, New York 10020 in consideration of TEN AND NO/100 ($10.00) DOLLARS,
receipt of which is hereby acknowledged, does hereby sell, assign, transfer and
set over to CENTERPOINT PROPERTIES CORPORATION, a Maryland corporation
("Purchaser"), the following described personal property, to-wit:
All equipment, apparatus, machinery, cranes, appliances, furnishings,
signs, site plans, surveys, soil and substrata studies, architectural
renderings, plans and specifications, engineering plans and studies, floor
plans and other plans or studies of any kind, leasing brochures, market
studies, tenant data sheets and other supplies, fixtures and personal and
tangible property owned by Seller and used in connection with the operation
and ownership of the Building or the Land, if any (hereinafter referred to
as the "Personal Property").
Seller hereby represents and warrants to Purchaser that (a) Seller is the
absolute owner of the Personal Property, (b) the Personal Property is free and
clear of all liens, charges and encumbrances, and (c) Seller has full right,
power and authority to sell the Personal Property and to make this Bill of
Sale. ALL WARRANTIES OF QUALITY, FITNESS AND MERCHANTABILITY ARE HEREBY
EXCLUDED.
IN WITNESS WHEREOF, Seller has caused this Bill of Sale to be signed and
sealed in its name by its officers thereunto duly authorized this ___ day of
April, 1996.
CORPORATE PROPERTY ASSOCIATES 5, a
California limited partnership
By: Carey Corporate Property, Inc.
General Partner
By:
---------------------------------
Name: John J. Park
Title: Vice President
Its:
----------------------------
Attest:
By:
---------------------------------
Name:
Title:
<PAGE>
STATE OF NEW YORK )
) SS.
COUNTY OF NEW YORK )
On this ___ day of April, 1996, before me appeared __________________, to
me personally known, who being by me duly sworn, did say that he/she is the
_____________________________ of Carey Corporate Property, Inc., the corporate
general partner of CORPORATE PROPERTY ASSOCIATES 5, a California limited
partnership and that he executed the within and foregoing instrument and that
said instrument was signed and sealed in behalf of said corporation and that
the seal affixed is the corporate seal of said corporation and said
_____________________ acknowledged said instrument to be the free act and deed
of said corporation.
--------------------------------------------
Notary Public
My Commission Expires:
- ----------------------------
2
<PAGE>
EXHIBIT "G"
ASSIGNMENT AND ASSUMPTION OF LEASE
----------------------------------
CORPORATE PROPERTY ASSOCIATES 5, a California limited partnership
("Assignor"), in consideration of the sum of TEN AND NO/100 ($10.00) DOLLARS in
hand paid and other good and valuable consideration, the receipt of which is
hereby acknowledged, hereby assigns, transfers, sets over and conveys to
CenterPoint Properties Corporation, a Maryland corporation ("Assignee"), all of
Assignor's right, title and interest in and to that certain Lease dated October
31, 1994 (the "Lease") by and between Assignor and GATX Logistics ("Tenant"),
pertaining to the real property and improvements thereon commonly known as 6600
River Road, Hodgkins, Illinois; provided, however, that Assignor shall retain
the right to bring an action against Tenant for any claim Assignor may have
against Tenant arising prior to the date hereof.
Assignor represents and warrants to Assignee that:
(a) Assignor is the sole owner of all right, title and interest in and to
the Lease; and
(b) Except in connection with the financing of the Project, which
financing will be satisfied on the date hereof and any rights of the lender in
the rents will be released, no part of the rents reserved in the Leases have
been previously assigned. No part of such rents, for any period subsequent to
the date hereof, has been collected in advance of the due date thereof.
Assignor shall remain liable to fulfill, perform and discharge all
obligations relating to the Lease which arose prior to the date hereof,
Assignor shall defend, indemnify and hold harmless Assignee from any liability,
damages, causes of action, expenses and attorneys' fees incurred by Assignee by
reason of the failure of Assignor to fulfill, perform and discharge all such
obligations relating to the Lease which arose prior to the date hereof.
Assignee shall remain liable to fulfill, perform and discharge all
obligations relating to the Lease which arose from and after to the date
hereof, Assignee shall defend, indemnify and hold harmless Assignor from any
liability, damages, causes of action, expenses and attorneys' fees incurred by
Assignor by reason of the failure of Assignee to fulfill, perform and discharge
all such obligations relating to the Lease which arose subsequent to the date
hereof.
This Assignment shall be binding upon and inure to benefit of Assignor,
Assignee and their respective successors and assigns.
This Assignment may be executed in two (2) or more counterparts, each of
which shall be deemed an original, but all of which shall constitute one and
the same instrument.
<PAGE>
IN WITNESS WHEREOF, Assignor has executed this Assignment this _____
day of April, 1996, which Assignment is effective this date.
ASSIGNOR:
CORPORATE PROPERTY ASSOCIATES 5, a
California limited partnership
By: Carey Corporate Property, Inc.
General Partner
By:
---------------------------------
Name:
--------------------------
Title:
Attest:
By:
---------------------------------
Name:
--------------------------
Title:
CENTERPOINT PROPERTIES CORPORATION, a
Maryland corporation
By:
---------------------------------
Name:
--------------------------
Title:
By:
---------------------------------
Name:
--------------------------
Title:
2
<PAGE>
EXHIBIT "A"
LIST OF CONTRACTS
-----------------
NONE
<PAGE>
EXHIBIT "H"
RE-AFFIRMATION OF REPRESENTATIONS AND WARRANTIES
------------------------------------------------
THIS RE-AFFIRMATION OF REPRESENTATIONS AND WARRANTIES ("Re-Affirmation") is
made as of this ____ day of April, 1996 by CORPORATE PROPERTY ASSOCIATES 5, a
California limited partnership (hereinafter referred to as "Seller").
WITNESSETH:
----------
WHEREAS, that certain Purchase Agreement dated as of March 28, 1996
("Contract") was entered into between Seller and CenterPoint Properties
Corporation, a Maryland corporation, as purchaser ("Purchaser"), pertaining to
the purchase and sale of the property commonly known as 6600 River Road,
Hodgkins, Illinois, legally described on Exhibit "A" attached hereto and made a
part hereof ("Property"); and
WHEREAS, as a condition to the closing of the transaction contemplated
under the Contract, Seller is required to execute and deliver this
Re-Affirmation.
NOW, THEREFORE, for Ten Dollars ($10.00) in hand paid, and for other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Seller hereby certifies to Purchaser that all of the
representations and warranties made by Seller pursuant to the Contract are true
and correct as of the date hereof and are reaffirmed and remade as of the date
hereof to Purchaser by Seller, except as shown on Exhibit "B" attached hereto
and made a part hereof. This Affirmation has been delivered by Seller to
Purchaser pursuant to the terms of the Contract and nothing herein contained is
intended to modify the terms of the Contract.
IN WITNESS WHEREOF, Seller has executed and delivered this Re-Affirmation
as of the day and year first above written.
CORPORATE PROPERTY ASSOCIATES 5, a
California limited partnership
By: Carey Corporate Property, Inc.
General Partner
By:
---------------------------------
Name:
Title:
Attest:
By:
---------------------------------
Name:
Title:
<PAGE>
EXHIBIT "A"
LEGAL DESCRIPTION
-----------------
<PAGE>
EXHIBIT "B"
EXCEPTIONS TO REPRESENTATIONS AND WARRANTIES
--------------------------------------------
NONE
<PAGE>
EXHIBIT "I"
ASSIGNMENT OF INTANGIBLE
PROPERTY AND OTHER RIGHTS
-------------------------
FOR VALUE RECEIVED, Corporate Property Associates 5, a California
limited partnership ("Assignor"), hereby conveys, assigns, transfers, and sets
over unto CenterPoint Properties Corporation, a Maryland corporation
("Assignee") all the right, title and interest of Assignor, if any, in and to
any and all intangible property now or hereafter owned, controlled or held by
Assignor, solely in connection with the Building and the Personal Property,
including, but not limited to: (i) all guaranties and warranties (including
guaranties and warranties pertaining to construction of the Building)
(collectively, the "Warranties"); (ii) all air rights, excess floor area rights
and other development rights relating or appurtenant to the Land or the
Building; (iii) all rights to obtain utility service in connection with the
Building and the Land; (iv) assignable licenses and other governmental permits
and permissions relating to the Land, the Building, and the operation thereof
(collectively, the "Permits"); (v) all trade marks and trade names. The
foregoing shall be collectively referred to herein as the "Intangible
Property". All defined terms utilized herein without definition shall have the
meaning ascribed to such terms in that certain Purchase Agreement dated March
28, 1996 by and between Assignor and Assignee.
Assignor shall remain liable to perform, discharge, fulfill and observe all
obligations of Assignor relating to the Intangible Property which arose prior
to the date hereof, with the exception of obligations related to the payment of
money for which a proration credit has been given to Assignee (in which
instance such payment obligation shall become Assignee's and is hereby assumed
by Assignee).
This Assignment shall be binding upon and shall inure to the benefit of
Assignor, Assignee and their respective successors and assigns.
IN WITNESS WHEREOF, Assignor has executed this Assignment of Intangible
Property and Other Rights on this ___ day of April, 1996, which instrument is
effective this date.
ASSIGNOR:
CORPORATE PROPERTY ASSOCIATES 5, a
California limited partnership
By: Carey Corporate Property, Inc.
General Partner
By:
---------------------------------
Name:
Title:
Attest:
By:
---------------------------------
Name:
Title:
<PAGE>
EXHIBIT "J"
SELLER'S CERTIFICATE
--------------------
The undersigned hereby certifies to CenterPoint Properties Corporation, a
Maryland corporation ("CenterPoint") that originals of (i) the Lease assigned
to CenterPoint pursuant to that certain Assignment and Assumption of Lease of
even date herewith from the undersigned in favor of CenterPoint and (ii) all
intangible personal property assigned to CenterPoint pursuant to that certain
Assignment of Intangible Property and Other Rights of even date herewith from
the undersigned in favor of CenterPoint have been delivered to CenterPoint as
of the date hereof.
Dated as of: April ___, 1996
CORPORATE PROPERTY ASSOCIATES 5, a
California limited partnership
By: Carey Corporate Property, Inc.
General Partner
By:
---------------------------------
Name:
Title:
Attest:
By:
---------------------------------
Name:
Title:
<PAGE>
EXHIBIT "K"
ATTORNMENT LETTER
-----------------
April ___, 1996
GATX Logistics, Inc.
Riverplace Tower
1301 Riverplace Boulevard
Suite 1200
Jacksonville, Florida 32207
Attention: President
Re: Notice of Change of Ownership
-----------------------------
Gentlemen ____________________:
You are hereby notified as follows:
1. As of the date hereof, Corporate Property Associates 5, a California
limited partnership (the "Former Owner"), has transferred, sold, assigned,
and conveyed all of the Former Owner's interest in and to the property
commonly known as 6600 River Road, Hodgkins, Illinois (the "Property"), to
CenterPoint Properties Corporation, a Maryland corporation.
2. The New Owner acknowledges receipt of and is, as of the date hereof,
responsible for your tenants' security deposit with respect to your leased
premises at the Property.
3. Future rental payment with respect to your leased premises at the Property
should be made to the New Owner as follows: by delivering a check or money
order payable to the order of CenterPoint Properties Corporation to P.O.
Box 90077, Chicago, Illinois 60690.
CORPORATE PROPERTY ASSOCIATES 5, a
California limited partnership
By: Carey Corporate Property, Inc.
General Partner
By:
---------------------------------
Name:
Title:
Attest:
By:
---------------------------------
Name:
Title:
<PAGE>
EXHIBIT "L"
TENANT ESTOPPEL CERTIFICATE
---------------------------
Property Name: _______________________________________________________
("Property")
Tenant:
To:
--------------------------------------------------------
DEFINITIONS:
- -----------
Lease Date:
Landlord:
Tenant:
Security Deposit:
--------------------------------------------------------
Date of Possession:
Rent Commencement Date:
Monthly Base Rent:
Annual Base
Rental Amount:
Monthly Deposits:
Term:
Termination Date:
Renewal Option(s):
Square Footage:
Use:
Tenants Address
For Notices:
"Purchaser" proposes to purchase the Property and this Tenant Estoppel
Certificate is to be made and delivered in connection with that purchase.
<PAGE>
The undersigned Tenant under the above-referenced lease dated as of the
Lease Date between Landlord and Tenant ("Lease"), certifies, represents,
confirms and agrees in favor of Purchaser the following:
1. All of the information set forth on the above schedule is true and
correct.
2. The above-described Lease has not been cancelled, modified,
assigned, extended or amended and contains the entire agreement between
Landlord and Tenant except as follows:
3. Rent has been paid to _______________________________________.
There is no Prepaid Rent. The amount of the Security Deposit is as set forth
above, which is currently being held by Landlord.
4. Tenant took possession of the leased premises on the Date of
Possession, and commenced to pay rent on the Rent Commencement Date, in the
amount of the Monthly Base Rent, each payable in advance. Our current Annual
Base Rental Amount is as set forth above, payable in equal monthly
installments, subject to percentage rental, common area maintenance charges,
escalation charges and other charges in accordance with the terms and
provisions of the Lease, which as of the date hereof total the Monthly Deposit
Amount, each payable in equal monthly installments in advance. We are
currently in occupancy of the leased premises. No "discounts", "free rent",
"discounted rent" or "abatements of rent" have been agreed to or are in effect.
5. The Lease is for the Term set forth above and ending on the
Termination Date, and we have the Renewal Option(s) set forth above.
6. All space and improvements covered by the Lease have been completed
and furnished to the satisfaction of Tenant, all conditions required under the
Lease have been met, and Tenant has accepted and taken possession of the leased
premises on the Date of Possession as set forth above and presently occupies
the leased premises, presently consisting of the Square Footage as set forth
above.
7. The Lease is (a) in full force and effect, and (b) free from
default by both Landlord and Tenant; and we have no claims, liens, charges or
credits against Landlord or offsets against rent.
8. The undersigned has not assigned or sublet the Lease, nor does the
undersigned hold the Property under assignment or sublease.
9. There are no other agreements written or oral, between the
undersigned and Landlord with respect to the Lease and/or the leased premises
and building. Landlord has satisfied all commitments, arrangements or
understandings made to induce Tenant to enter into the Lease, and Landlord is
not in any respect in default in the performance of the terms and provisions of
the Lease, nor is there now any fact or condition which, with notice or lapse
of time or both, would become such a default.
10. The leased premises are currently being used for the Use set forth
above.
11. Tenant is maintaining (free of default) all insurance policies that
the Lease requires Tenant to maintain.
12. Tenant is not in any respect in default under the terms and
provisions of the Lease (nor is there now any fact or condition which, with
notice or lapse of time or both, would become such a default), and Tenant has
not assigned, transferred or hypothecated its interest under the Lease.
2
<PAGE>
13. Tenant (i) does not have any option or preferential right to
purchase all or any part of the leased premises or all or any part of the
building of which the leased premises are a part; and (ii) does not have any
right, title or interest with respect to the leased premises other than as
lessee under the Lease.
14. We understand that Purchaser is planning to purchase the Property
on which the leased premises is located to Purchaser, and we agree to make all
payments required under the Lease to Purchaser upon our receipt of notice from
Landlord and/or Purchaser. Further, upon receipt of such notice, we will
thereafter look to Purchaser and not Landlord as the landlord under the Lease.
We agree to give all notices required to be given by us to Landlord under the
Lease to Purchaser upon our receipt of said notice.
15. The statements contained herein may be relied upon by Purchaser and
by any prospective purchaser or lender of the Property.
16. If Tenant is a Corporation, the undersigned is a duly appointed
officer of the corporation signing this Agreement, and is the incumbent in the
office indicated under his or her name. If Tenant is a partnership or joint
venture, the undersigned is a duly appointed partner or officer of the
partnership or joint venture signing this certificate. In any event, the
undersigned individual is duly authorized to execute this Agreement on behalf
of Tenant.
17. Tenant (a) executes this certificate with the understanding that
Purchaser is contemplating purchasing the Property, and that if Purchaser
purchases the Property, Purchaser will do so in material reliance on this
certificate; and (b) agrees that the certifications and representations made
herein shall survive such acquisition.
18. The current address to which all notices to Tenant as required
under the Lease should be sent is the Tenant's Address for Notices.
19. Purchaser's rights hereunder shall inure to its successors and
assigns.
20. Tenant is obligated under the Lease to pay the real estate taxes
which are assessed against the Property in each calendar year. Tenant is
obligated to pay to Landlord the real estate taxes assessed against the
Property during the last year of the Term upon Landlord's delivery of a real
estate tax bill with respect thereto, even though the Lease has expired and
Tenant has vacated the Property prior to the issuance of said real estate tax
bill. For example: (i) in 1997, Tenant shall pay the real estate taxes
assessed against the Property in 1996 which are due and payable in 1997; and
(ii) since the Term expires October 31, 1999, Tenant shall pay 10/12ths of the
1999 real estate tax bill when such bill is issued in 2000 even though Tenant
will have vacated the Premises in 1999.
IN WITNESS WHEREOF, Tenant has executed this estoppel certificate as of
this ______ day of ________________, 199___.
, a
-----------------------------------
--------------------------------------
By:
-----------------------------------
Its:
------------------------------
3
<PAGE>
EXHIBIT "M"
ENVIRONMENTAL CLAIMS
--------------------
NONE
<PAGE>
EXHIBIT 10.2
AMENDMENT TO
PURCHASE AGREEMENT
------------------
THIS AMENDMENT TO PURCHASE AGREEMENT (this "Amendment") is made and
---------
entered into as of this 3rd day of April, 1996 by and between CENTERPOINT
PROPERTIES CORPORATION, a Maryland corporation ("Purchaser"), and CORPORATE
---------
PROPERTY ASSOCIATES 5, a California limited partnership ("Seller").
------
R E C I T A L S :
- - - - - - - -
A. Seller and Purchaser have heretofore entered into a Purchase
Agreement dated March 28, 1996 (the "Agreement") relating to certain real
---------
estate located at 6600 River Road, Hodgkins, Illinois, legally described in
Exhibit "A" attached to the Agreement (initially capitalized terms used but not
- -----------
defined herein shall have the meaning ascribed to such terms in the Agreement).
B. By letter dated April 1, 1996, the expiration of the Inspection
Period was extended to 5:00 p.m. (central standard time) on April 2, 1996.
C. The parties desire to amend the Agreement as herein provided.
NOW, THEREFORE, in consideration of the mutual covenants and conditions
hereinafter set forth, the receipt and sufficiency of which are hereby
acknowledged by the parties hereto, the parties hereby agree as follows:
1. The Purchase Price is hereby reduced from THIRTEEN MILLION FIVE
HUNDRED THOUSAND AND NO/100 DOLLARS ($13,500,000.00) to THIRTEEN MILLION TWO
HUNDRED THOUSAND AND NO/100 DOLLARS ($13,200,000.00). The cash portion of the
Purchase Price to be paid by Purchaser on or before the Closing Date is hereby
reduced from THIRTEEN MILLION TWO HUNDRED FIFTY THOUSAND AND NO/100 DOLLARS
($13,250,000.00) to TWELVE MILLION NINE HUNDRED FIFTY THOUSAND AND NO/100
DOLLARS ($12,950,000.00) as a result of the foregoing reduction of the Purchase
Price.
2. Purchaser hereby accepts the Property and the condition thereof, and
acknowledges that it has waived its rights to terminate this Agreement during
the Inspection Period pursuant to Section 7 of the Agreement.
3. As a result of Purchaser's inspection and testing of the Property
during the Inspection Period, Seller's representations and warranties contained
in Sections 8(10) and 16B of the Agreement shall be modified by adding the
following at the beginning of each of the aforesaid Sections 8(10) and 16B:
<PAGE>
"Except as disclosed by Purchaser to Seller during the Inspection
Period,".
4. The last sentence of Section 14A of the Agreement is hereby deleted,
the parties acknowledging that Seller's representations and warranties shall not
survive Closing.
5. All other terms of the Purchase Agreement shall remain in full force
and effect.
6. This Amendment may be executed in two or more counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
7. This Amendment shall be binding upon and shall inure to the benefit
of the parties hereto and their respective successors and assigns.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as
of the day and year first above written.
PURCHASER: CENTERPOINT PROPERTIES CORPORATION,
- --------- a Maryland corporation
By: /s/ Michael M. Mullen
----------------------------------
Name: Michael M. Mullen
-----------------------------
Title: Chief Executive Officer
----------------------------
SELLER: CORPORATE PROPERTY ASSOCIATES 5,
- ------ a California limited partnership
By: Carey Corporate Property, Inc.,
General Partner
By:
-----------------------------
Name:
------------------------
Title:
-----------------------
2
