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) October
10, 1997
DEAN WITTER REALTY INCOME PARTNERSHIP I, L.P.
(Exact name of registrant as specified in its charter)
Delaware 0-13260 13-3174553
(State or other jurisdiction (Commission (I.R.S. Employer
of incorporation) File Number) Identification No.)
Two World Trade Center, New York, New York
10048
(Address of principal executive offices)
(Zip Code)
Registrant's telephone number, including area code(212) 392-1054
(Former name or former address, if changed since last report)
Item 2. Acquisition or Disposition of Assets
Pursuant to a Purchase and Sale Agreement dated as of
September 8, 1997, the Partnership entered into an
agreement with Great Lakes REIT, L.P., an unaffiliated
party, to sell the land and building which comprise the
Arlington Business Center property for a negotiated
sale price of $5.2 million.
The closing of the sale took place on October 10, 1997.
At closing, the Partnership received proceeds of
approximately $4.4 million, net of closing costs and
other deductions.
Item 7. Financial Statements and Exhibits
(b) Pro Forma Financial Information
(1) Pro Forma Balance Sheet as of July 31,
1997.
(2) Pro Forma Statements of Operations for the year
ended October 31, 1996 and the nine months
ended July 31, 1997.
(c) Exhibits
(1) Purchase and Sale Agreement, dated as of
September 8, 1997, with respect to the
sale of the Arlington Business Center
property.
SIGNATURES
Pursuant to the requirements of the Securities Exchange
Act of 1934, the registrant has duly caused this report
to be signed on its behalf by the undersigned hereunto
duly authorized.
DEAN WITTER REALTY INCOME PARTNERSHIP
I, L.P.
By: Dean Witter Realty Income Properties
I, Inc.
Managing General Partner
By: /s/E. Davisson Hardman, Jr,
E. Davisson Hardman, Jr.
President
Date: October 24, 1997
<TABLE>
Dean Witter Realty Income Partnership I, L.P.
Pro Forma Consolidated Balance Sheet
As of July 31, 1997
The following unaudited pro forma balance sheet has been
presented as if the Arlington Business Center property was sold
as of July 31, 1997. The pro forma adjustments reflect a) the
net cash proceeds from the sale, b) the elimination of the net
carrying value of the property from real estate held for sale,
and c) the elimination of other assets and liabilities relating
to the property sold.
Pro Forma
Historical Adjustments Pro Forma
<S>
ASSETS
<C> <C> <C>
Real estate $26,586,924 - $26,586,924
Real estate held for sale 2,982,030$(2,982,030) -
Cash and cash equivalents1,699,576 4,600,000 6,299,576
Other assets 1,534,020 (380,411) 1,153,609
$32,802,550 $1,237,559 $34,040,109
LIABILITIES AND PARTNERS' CAPITAL
Accounts payable and other
liabilities $ 986,252 $ (444,454) $ 541,798
Total partners' capital31,816,298 1,682,013 33,498,311
$ 32,802,550$ 1,237,559 $ 34,040,109
</TABLE>
<PAGE>
<TABLE>
Dean Witter Realty Income Partnership I, L.P.
Pro Forma Consolidated Statement of Income
For the year ended October 31, 1996
The following unaudited pro forma consolidated statement of
operations has been presented as if the Arlington Business Center
property was sold as of November 1, 1995. The pro forma
adjustments reflect the elimination of rental and other revenues,
property operating expenses, and depreciation and amortization
expenses relating to the property sold. The pro forma
adjustments do not reflect the Partnership's nonrecurring gain on
the sale of the property.
Pro Forma
Historical Adjustments Pro Forma
<S>
Revenues:
<C> <C> <C>
Rental $7,013,164 $(1,271,750) $5,741,414
Gain on sale of real estate683,471 - 683,471
Equity in earnings of
joint venture 589,362 - 589,362
Interest and other 207,740 (942) 206,798
8,493,737 (1,272,692) 7,221,045
Expenses:
Property operating3,085,939 (745,109) 2,340,830
Interest 218,159 - 218,159
Depreciation 1,745,666 (218,173) 1,527,493
Amortization 138,008 (47,172) 90,836
General and administrative 403,546 - 403,546
Loss on impairment of
real estate 8,510,000 - 8,510,000
14,101,318 (1,010,454) 13,090,864
Net loss $(5,607,581) $ (262,238) $(5,869,819)
Net loss per
Unit of Limited
Partnership interest$ (53.66)$ (2.54)$ (56.20)
</TABLE>
<PAGE>
<TABLE>
Dean Witter Realty Income Partnership I, L.P.
Pro Forma Consolidated Statement of Operations
For the nine months ended July 31, 1997
The following unaudited pro forma consolidated statement of
operations has been presented as if the Arlington Business Center
property was sold as of November 1, 1996. The pro forma
adjustments reflect the elimination of rental and other revenues,
property operating expenses and depreciation and amortization
expenses relating to the property sold. The pro forma adjustments
do not reflect the Partnership's nonrecurring gain on the sale of
the property.
Pro Forma
Historical Adjustments Pro Forma
<S>
Revenues:
<C> <C> <C>
Rental $ 4,798,148 $ (974,806) $ 3,823,342
Equity in earnings of
joint venture 2,425,949 - 2,425,949
Interest and other 191,176 (1,069) 190,107
7,415,273 (975,875) 6,439,398
Expenses:
Property operating2,171,988 (551,560) 1,620,428
Depreciation 940,389 (102,885) 837,504
Amortization 94,172 (26,878) 67,294
General and administrative 352,067 - 352,067
3,558,616 (681,323) 2,877,293
Net income $ 3,856,657 $ (294,552) $ 3,562,105
Net income per
Unit of Limited
Partnership interest$ 39.63 $ (2.86)$ 36.77
</TABLE>
<PAGE>
Exhibit Index for Dean Witter Realty Income Partnership I, L.P.
Exhibit
No. Description
(2) Purchase and Sale Agreement,
dated as of September 8, 1997
with respect to the sale of
the Arlington Business Center
property.
E-1
-37-
PURCHASE AND SALE AGREEMENT
PURCHASE AND SALE AGREEMENT (this "Agreement"),
dated as of the 8th day of September, 1997, by and
between AMERICAN NATIONAL BANK AND TRUST COMPANY OF
CHICAGO, having an address at 33 North LaSalle Street,
Chicago, Illinois 60690, not personally but solely as
trustee (the "Trustee") under those certain trusts both
dated October 3, 1993 and known as Trust Nos. 59343 and
59344 DEAN WITTER REALTY INCOME PARTNERSHIP I, L.P., a
Delaware limited partnership, having an office c/o Dean
Witter Realty Inc., Two World Trade Center, 64th Floor,
New York, New York 10048, the sole beneficiary (the
"Beneficiary", and together with the Trustee, the
"Seller") under those certain trusts both dated October
3, 1993 and known as Trust Nos. 59343 and 59344, and
GREAT LAKES REIT, L.P. a Delaware limited partnership,
having an office at 823 Commerce Drive, Oak Brook,
Illinois 60523 (the "Purchaser").
W I T N E S S E T H
WHEREAS, the Trustee is the owner of the real
property at the Arlington Business Center known and
numbered as 3455, 3550 and 3555 Salt Creek Lane,
Arlington Heights, Illinois consisting of three
buildings commonly referred to as the "Tech Center II,"
the "Showroom Building" and the "Tech Center I",
respectively;
WHEREAS, the Seller and the Purchaser have entered
into negotiations wherein the Purchaser expressed its
intent to purchase the Property (as defined herein)
from the Seller and the Seller expressed its intent to
sell the Property to the Purchaser; and
WHEREAS, the Seller and the Purchaser now desire
to enter into an agreement whereby, subject to the
terms and conditions contained herein, the Seller shall
sell the Property to the Purchaser and the Purchaser
shall purchase the Property from the Seller.
NOW, THEREFORE, in consideration of ten ($10.00)
dollars and the mutual covenants and agreements
hereinafter set forth, and intending to be legally
bound hereby, it is hereby agreed as follows:
Sale of the Property.
The Seller agrees to sell and convey to the Purchaser,
and the Purchaser agrees to purchase from the Seller,
at the price and upon the terms and conditions set
forth in this Agreement, all those certain plots,
pieces and parcels of land described in Schedule 1
hereto (the "Land") listed thereon as owned by the
Seller, together with (i) all buildings, related
facilities, and other improvements situated on the Land
(collectively, the "Buildings"), (ii) all easements,
rights of way, reservations, privileges, appurtenances,
and other estates and rights of the Seller pertaining
to the Land and the Buildings, (iii) all right, title
and interest of the Seller in and to all fixtures,
machinery, equipment, supplies, building materials,
carpeting, inventory and other articles of personal
property attached or appurtenant to the Land or the
Buildings, or used in connection therewith
(collectively, the "Personal Property"), (iv) all
right, title and interest of the Seller, if any, in and
to the trade names of the Buildings, (v) all right,
title and interest in the Leases, Contracts, Licenses;
and (vi) all plans, specifications, drawings,
maintenance records and other documents pertaining to
the Land, Buildings or Personal Property that are in
its possession (the Land, together with all of the
foregoing items listed in clauses (i)-(vi) above being
hereinafter sometimes referred to as the "Property").
Excluded Property.
Specifically excluded from the Property and
this sale are all items of personal property not
described in Section 1 (and all personal property
of tenants under the Leases) and the items
described in Schedule 2 annexed hereto and made a
part hereof.
Closing Date.
The delivery of the Deed and the consummation
of the transactions contemplated by this Agreement
(the "Closing") shall take place at the offices of
the Title Company in Chicago, Illinois on October
10, 1997 (the "Closing Date") or such earlier or
later date as the Seller and Purchaser may agree
in writing.
Purchase Price.
The purchase price to be paid by the Purchaser to
the Seller for the Property (the "Purchase Price") is
Five Million Two Hundred Thousand Dollars ($5,200,000)
payable as follows:
(a) One Hundred Thousand Dollars ($100,000)
(the "Downpayment") shall be payable within one
business day of full execution of this Agreement
by all parties, by delivery to First American
Title Insurance Company (the "Escrow Agent") of a
certified or bank check drawn on or by a bank
which is a member of the New York Clearing House
Association (a "Clearing House Bank") or by wire
transfer of immediately available funds to the
Escrow Agent's account as set forth in the Escrow
Agreement. The Downpayment shall be held and
disbursed by the Escrow Agent in accordance with
the terms of Section 15. At the Closing, the
Deposit shall be delivered to the Seller and such
amount shall be credited against the portion of
the Purchase Price payable pursuant to Section
2(b);
(b) The balance of the Purchase Price (i.e.,
the Purchase Price minus the credit set forth in
Section 2(a) above), plus or minus the
apportionments set forth in Section 3, shall be
paid at the Closing by bank wire transfer of
immediately available funds to the Seller's
account or to the account or accounts of such
other party or parties as may be designated by the
Seller on or before the Closing Date.
The parties agree that the Purchase Price
shall be allocated for all purposes in the
following manner: (a) $850,000.00 to the Land, and
(b) $4,350,000.00 to the Buildings.
Apportionments
The following shall be apportioned between the
Seller and the Purchaser at the Closing as of 11:59
p.m. of the day preceding the Closing Date (the
"Adjustment Date"):
(a) fixed or base rents ("Rents") which have
been prepaid, security deposits referred to in
Section 8(e), Rents for the month in which the
Closing occurs and Additional Rents and other
amounts paid by tenants applicable to periods
which expire after the Closing Date, which have
been received by Seller;
(b) real estate taxes, special assessments
(but only any installment relating to the period
in which the Adjustment Date occurs), water
charges, sewer rents and charges and vault
charges, if any, on the basis of the fiscal years
(or applicable billing period if other than a
fiscal year), respectively, for which same have
been assessed;
(c) value of prepaid fuel belonging to the
Seller stored on the Property, at the Seller's
cost, including any taxes, on the basis of a
statement from the Seller's suppliers;
(d) charges and payments under Contracts
that are being assigned to the Purchaser pursuant
to the terms of this Agreement and listed on
Schedule 3 hereto or permitted renewals or
replacements thereof;
(e) any prepaid items, including, without
limitation, fees for licenses which are
transferred to the Purchaser at the Closing and
annual permit and inspection fees;
(f) utilities, to the extent required by
Section 3.4;
(g) deposits with telephone and other
utility companies, and any other persons or
entities who supply goods or services in
connection with the Property if same are assigned
to the Purchaser at the Closing;
(h) personal property taxes, if any, on the
basis of the fiscal year for which assessed;
(i) all other revenues from the operation of
the Property other than Rents and Additional Rents
(including, without limitation, parking charges,
tenant direct electrical reimbursements, HVAC
overtime charges, and telephone booth and vending
machine revenues);
(j) New Lease Expenses as provided in
Section 10.1.2; and
(k) such other items as are customarily
apportioned between sellers and purchasers of real
properties of a type similar to the Property and
located in Cook County, Illinois.
Taxes.
If the amount of real estate taxes, special
assessments or other taxes for the Property for
the fiscal year during which Closing occurs is not
finally determined at the Adjustment Date, such
taxes shall be apportioned on the basis of the
full amount of the assessment for such period (or
the assessment for the prior tax period if the
assessment for the current tax period is not then
known) and the rate for the immediately prior tax
year, and shall be reapportioned as soon as the
actual taxes have been finally determined. If any
taxes which have been apportioned shall
subsequently be reduced by abatement, the amount
of such abatement, less the cost of obtaining the
same and after deduction of sums payable to
tenants under Leases or expired or terminated
Leases, shall be equitably apportioned between the
parties hereto.
The Purchaser covenants that, provided it
receives from the Seller at Closing an offset for
the Seller's apportioned share of 1997 real estate
taxes, the Purchaser will pay all 1997 real estate
taxes in a timely manner when they become due and
payable in 1998.
Rents.
Arrearages.
If on the Closing Date any tenant is in
arrears in the payment of Rent or has not
paid the Rent payable by it for the month in
which the Closing occurs (whether or not it
is in arrears for such month on the Closing
Date), any Rents received by the Purchaser or
the Seller from such tenant after the Closing
shall be applied to amounts due and payable
by such tenant during the following periods
in the following order of priority:
(i) first, to the month in which the Closing
occurred, (ii) second, to the month following
the date of purchase, (iii) third, to the
month preceding the month in which the
Closing occurred, and (iv) fourth, to the
months following the month in which the
Closing occurred, unless such tenant
expressly identifies a payment is to apply to
a specific charge or time period. If Rents
or any portion thereof received by the Seller
or the Purchaser after the Closing are due
and payable to the other party by reason of
this allocation, the appropriate sum, less a
proportionate share of any reasonable
attorneys' fees and costs and expenses
expended in connection with the collection
thereof, shall be promptly paid to the other
party (to the extent not collected from or
reimbursed by tenants).
Additional Rents.
If any tenants are required to pay
percentage rent, escalation charges for real
estate taxes, parking charges, operating
expenses and maintenance escalation charges,
cost-of-living increases or other charges of
a similar nature ("Additional Rents") and any
Additional Rents are collected by the
Purchaser from a tenant after the Closing
Date, then the Purchaser shall promptly pay
to the Seller out of the first such sums
received from such tenant the amount of all
Additional Rents which are due and payable by
such tenant with respect to any period prior
to the Closing Date (whether or not such
Additional Rents first became due and payable
on or after the Closing Date), less a
proportionate share of any reasonable
attorneys' fees and costs and expenses of
collection thereof (to the extent not
collected from or reimbursed by tenants).
Collection After the Closing.
After the Closing, the Seller shall
continue to have the right, in its own name,
to demand payment of and to collect Rent and
Additional Rent arrearages owed to the Seller
by any tenant, which right shall include,
without limitation, the right to continue or
commence legal actions or proceedings against
any tenant. The Purchaser agrees to
reasonably cooperate with the Seller in
connection with all efforts by the Seller to
collect such Rents and Additional Rents and
to take all steps, whether before or after
the Closing Date, as may be reasonably
necessary to carry out the intention of the
foregoing, including, without limitation, the
delivery to the Seller, upon demand, of any
relevant books and records (including any
Rent or Additional Rent statements, receipted
bills and copies of tenant checks used in
payment of such Rent or Additional Rent), the
execution of any and all consents or other
documents, and the undertaking of any act
reasonably necessary for the collection of
such Rents and Additional Rents by the
Seller. If for any fiscal period which
includes the Adjustment Date tenants are
paying Additional Rent based upon estimates
prepared by the Seller, such Additional Rents
shall be reapportioned when the actual
expenses for the fiscal period are known.
Water.
If there is a water meter on the Property,
the Seller shall furnish a reading to a date not
more than thirty (30) days prior to the Closing
Date, and the unfixed water charges and sewer
rent, if any, based thereon for the intervening
time shall be apportioned on the basis of such
last reading.
Utilities.
The Seller will attempt to obtain final
readings of fuel, telephone, electricity, and gas
to be made as of the Adjustment Date. The Seller
shall pay the bills based on such readings
promptly after the same are rendered. If
arrangements cannot be made for any such final
reading, the parties shall apportion the charges
for such services on the basis of the bill
therefor for the most recent billing period prior
to the Adjustment Date, and when final bills are
rendered for the period which includes the
Adjustment Date the Seller and Purchaser shall
promptly readjust the apportionments in accordance
with such final bills.
Post-Closing Adjustments.
The items set forth in this Section 3 shall
be apportioned at the Closing by payment of the
net amount of such apportionments to the Seller in
the manner set forth herein for the payment of the
Purchase Price if the net apportionment is in
favor of the Seller or by a credit against the
Purchase Price if the net apportionment is in
favor of the Purchaser. However, if any of the
items subject to apportionment under the foregoing
provisions of this Section 3 cannot be apportioned
at the Closing because of the unavailability of
the information necessary to compute such
apportionment, or if any errors or omissions in
computing apportionments at the Closing are
discovered subsequent to the Closing, then such
item shall be reapportioned and such errors and
omissions corrected as soon as practicable after
the Closing Date and the proper party reimbursed,
which obligation shall survive the Closing for a
period of one year after the Closing Date.
Notwithstanding any of the foregoing provisions of
this Section 3.5 to the contrary, the Purchaser
and the Seller agree that the one year limitation
set forth in this Section 3.5 shall not apply to
the parties' obligations under Sections 3.1 and
3.2 and that such obligations shall survive the
Closing forever.
Due Diligence Period.
Notwithstanding anything to the contrary contained
herein, the Purchaser shall have a thirty (30) day
period commencing on the date hereof (the "Due
Diligence Period") to examine title to the Property, to
inspect the physical and financial condition of the
Property and to review the Property Information.
Access to the Property.
During the Due Diligence Period, the
Purchaser and the Purchaser's Representatives
shall have the right to enter upon the Property
for the sole purpose of inspecting the Property
and making surveys, soil borings, engineering
tests and other investigations, inspections and
tests (collectively, "Investigations"), provided
(i) the Purchaser shall give the Beneficiary not
less than one (1) business day's prior notice
before each entry, and (ii) neither the Purchaser
nor the Purchaser's Representatives shall permit
any borings, drillings or samplings to be done on
the Property without the Beneficiary's prior
written consent which consent shall not be
unreasonably withheld. Any entry upon the
Property and all Investigations shall be during
the Beneficiary's normal business hours and at the
sole risk and expense of the Purchaser and the
Purchaser's Representatives, and shall not
unreasonably interfere with the activities on or
about the Property of the Beneficiary, its tenants
and their employees and invitees. The Purchaser
shall:
(a) promptly repair any damage to the
Property resulting from any such
Investigations and replace, refill and
regrade any holes made in, or excavations of,
any portion of the Property used for such
Investigations so that the Property shall be
in the same condition as that which existed
prior to such Investigations;
(b) fully comply with all Laws
applicable to the Investigations and all
other activities undertaken in connection
therewith;
(c) permit the Seller to have a
representative present during all
Investigations undertaken hereunder;
(d) take all actions and implement all
protections necessary to ensure that all
actions taken in connection with the
Investigations, and the equipment, materials,
and substances generated, used or brought
onto the Property pose no threat to the
safety or health of persons or the
environment, and cause no damage to the
Property or other property of the Seller or
other persons;
(e) maintain or cause to be maintained,
at the Purchaser's expense, a policy of
comprehensive general public liability
insurance with a combined single limit of not
less than $1,000,000 per occurrence for
bodily injury and property damage, automobile
liability coverage including owned and hired
vehicles with a combined single limit of
$1,000,000 per occurrence for bodily injury
and property damage, and an excess umbrella
liability policy for bodily injury and
property damage in the minimum amount of
$3,000,000, insuring the Purchaser and the
Seller and certain of Seller's Affiliates
listed on Schedule 4, as additional insureds,
against any injuries or damages to persons or
property that may result from or are related
to (i) the Purchaser's and/or the Purchaser's
Representatives' entry upon the Property,
(ii) any Investigations or other activities
conducted thereon, and (iii) any and all
other activities undertaken by the Purchaser
and/or the Purchaser's Representatives in
connection with the Property, and deliver
evidence of such insurance policy to the
Seller at the earlier of ten (10) days after
the date of this Agreement or the first entry
on the Property;
(f) not, at any time, contact or
communicate with any tenant of the Property
for any reason whatsoever without the prior
written notice to the Seller, which
communications, whether by telephone, in
writing or in person, Seller or its designee
shall have the right to be present at or
otherwise participate in; and
(g) indemnify the Seller and the
Seller's Affiliates and hold the Seller and
the Seller's Affiliates harmless from and
against any and all claims, demands, causes
of action, losses, damages, liabilities,
costs and expenses (including without
limitation attorneys' fees and
disbursements), suffered or incurred by the
Seller or any of the Seller's Affiliates and
arising out of or in connection with (i) the
Purchaser and/or the Purchaser's
Representatives' entry upon the Property,
(ii) any investigations or other activities
conducted thereon by the Purchaser or the
Purchaser's Representatives, and (iii) any
liens or encumbrances filed or recorded
against the Property as a consequence of the
Investigations.
The provisions of this Section 4.1 shall
survive the termination of this Agreement and the
Closing.
Purchaser's Termination Notice.
The Purchaser shall have the right to elect
to terminate this Agreement by giving written
notice (the "Purchaser's Termination Notice") of
such election to the Seller at any time prior to
the expiration of the Due Diligence Period if the
Purchaser shall determine (in the exercise of its
sole discretion) that the results of any
inspection, test, examination or Investigation do
not meet the Purchaser's criteria for the
purchase, financing or operation of the Property
in the manner contemplated by the Purchaser, or if
the Purchaser, in its sole discretion, otherwise
determines that the Property is unsatisfactory to
it, in which event the provisions of Section 14.1
shall apply.
If for any reason whatsoever the Seller shall
not have received the Purchaser's Termination
Notice prior to the expiration of the Due
Diligence Period, the Purchaser shall be deemed to
have irrevocably waived the right of termination
granted under this Section 4.2, and such right of
termination shall be of no further force or
effect.
Estoppel Certificates.
Promptly after execution and delivery of this
Agreement, the Seller agrees to request an
Estoppel Certificate from each tenant under a
Lease, and it shall be a condition precedent to
Purchaser's obligation to close this transaction
that Seller shall have obtained executed Estoppel
Certificates from tenants who lease in the
aggregate at least 75% of the net rentable area of
the Buildings The Estoppel Certificates shall be
in the form annexed hereto as Exhibit G and made a
part hereof; provided, however, if any tenant is
required or permitted under its Lease to make
different statements in a certificate of such
nature than are set forth in Exhibit G, prior to
requesting an Estoppel Certificate from such
tenant, the Seller may modify the Estoppel
Certificate for such tenant to set forth only the
statements required under such tenant's Lease to
be made by such tenant in such a certificate. If
any tenant fails to deliver an Estoppel
Certificate in the form required by this
Agreement, Seller shall substitute in lieu thereof
an estoppel certificate substantially in such form
executed by Seller and such estoppel certificate
shall be treated for all purposes as an Estoppel
Certificate from such failing tenant.
Title.
The Seller shall convey and the Purchaser shall
accept title to the Property subject to those matters
set forth on Schedule 5 hereto (collectively the
"Permitted Encumbrances"). The Seller has delivered to
the Purchaser a commitment for an owner's fee title
insurance policy with respect to the Property in the
full amount of the Purchase Price, showing fee simple
title to the property in the Trustee (the "Title
Commitment") from First American Title Insurance
Company (the "Title Company"), together with true and
complete copies of all instruments giving rise to any
defects or exceptions to title to the Property. The
title policy delivered at closing shall have all
standard and general printed exceptions deleted so as
to afford full "extended form coverage", and the Title
Commitment and such title policy, including the
extended form coverage, shall be at Seller's expense.
The Title Commitment and title policy shall include any
endorsements requested by the Purchaser by written
notice to the Title Company within five days of the
date of this Agreement, but all such endorsements shall
be at the Purchaser's expense. The Seller shall
deliver to the Purchaser, at the Seller's expense,
within twenty (20) days after the execution of this
Agreement an as-built survey ("Survey") of the Land and
Building prepared by Sargeant Engineering Company, Ltd.
in accordance with the "Minimum Standard Detail
Requirements for ALTA/ACSM Land Title Surveys" jointly
established and adopted by ALTA and ACSM in 1992. The
Survey shall be an update of the survey of the Property
by Sargeant Engineering Company, Ltd. dated December
16, 1996 and shall show all encumbrances listed on the
Title Commitment. The Survey shall contain a
surveyor's certificate in favor of Purchaser and the
Title Company in form and substance satisfactory for
deletion of the standard survey exception from the
title insurance policy.
Unacceptable Encumbrances.
If the Title Commitment or the Survey
indicate the existence of any liens or
encumbrances (collectively, "Liens") or other
defects or exceptions in or to title to the
Property other than the Permitted Encumbrances
(collectively, the "Unacceptable Encumbrances")
subject to which the Purchaser is unwilling to
accept title, or the Purchaser is unable to obtain
commitments for such endorsements as the Purchaser
and its counsel may reasonably request and the
Purchaser gives the Seller notice of the same
within ten (10) days after receipt of the Survey,
the Seller shall undertake to eliminate the same
(or to arrange for title insurance insuring
against enforcement of such Unacceptable
Encumbrances against, or collection of the same
out of, the Property) or obtain such endorsements
subject to Section 5.2. The Purchaser hereby
waives any right the Purchaser may have to advance
as objections to title or as grounds for the
Purchaser's refusal to close this transaction any
Unacceptable Encumbrance or lack of any
endorsements which the Purchaser does not notify
the Seller of within such ten (10) day period
unless (i) such Unacceptable Encumbrance was first
raised by the Title Company subsequent to the date
of the Title Commitment or the Purchaser shall
otherwise first discover same or be advised of
same subsequent to the date of the Title
Commitment or the Survey, respectively, and (ii)
the Purchaser shall notify the Seller of the same
within five (5) days after the Purchaser first
becomes aware of such Unacceptable Encumbrance.
The Seller, in its sole discretion, may adjourn
the Closing one or more times for up to sixty (60)
days in the aggregate in order to eliminate
Unacceptable Encumbrances.
Removal of Unacceptable Encumbrances.
The Seller shall not be obligated to bring
any action or proceeding, to make any payments or
otherwise to incur any expense in order to
eliminate Unacceptable Encumbrances not waived by
the Purchaser or to arrange for title insurance
insuring against enforcement of such Unacceptable
Encumbrances against, or collection of the same
out of, the Property or obtain any endorsements
requested by the Purchaser; except that the Seller
shall satisfy Unacceptable Encumbrances which are
(i) mortgages (other than the Continuing
Mortgage), and past due real estate taxes and
assessments secured by or affecting the Property,
and (ii) judgments against the Seller or other
Liens secured by or affecting the Property which
judgments and other Liens can be satisfied by
payment of liquidated amounts not to exceed
$50,000 in the aggregate for all such judgments
and other Liens. The Seller may eliminate any
such Unacceptable Encumbrance by the payment of
amounts necessary to cause the removal thereof of
record, by bonding over such Unacceptable
Encumbrance in a manner reasonably satisfactory to
the Purchaser or by arranging for title insurance
reasonably satisfactory to the Purchaser insuring
against enforcement of such Unacceptable
Encumbrance against, or collection of the same out
of, the Property.
Options Upon Failure to Remove Unacceptable
Liens.
If the Seller is unable or is not otherwise
obligated (pursuant to Section 5.2) to eliminate
all Unacceptable Encumbrances not waived by the
Purchaser, or to bond over in a manner reasonably
satisfactory to the Purchaser any Unacceptable
Encumbrances not waived by the Purchaser, or to
arrange for title insurance reasonably acceptable
to the Purchaser insuring against enforcement of
such Unacceptable Encumbrances against, or
collection of the same out of, the Property or
obtain any endorsements reasonably requested by
the Purchaser, and to convey title in accordance
with the terms of this Agreement on or before the
Closing Date (whether or not the Closing is
adjourned as provided in Section 5.1), the
Purchaser shall elect on the Closing Date, as its
sole remedy for such inability of the Seller,
either (i) to terminate this Agreement by notice
given to the Seller pursuant to Section 14.1, in
which event the provisions of Section 14.1 shall
apply, or (ii) to accept title subject to such
Unacceptable Encumbrances and without the
requested endorsements and receive no credit
against, or reduction of, the Purchase Price.
Use of Purchase Price.
If on the Closing Date there may be any Liens
or other encumbrances which the Seller must pay or
discharge in order to convey to the Purchaser such
title as is herein provided to be conveyed, the
Seller may use any portion of the Purchase Price
to satisfy the same, provided:
(a) the Seller shall deliver to the
Purchaser or the Title Company, at the
Closing, instruments in recordable form and
sufficient to satisfy such Liens or other
encumbrances of record together with the cost
of recording or filing said instruments; or
(b) the Seller, having made
arrangements with the Title Company, shall
deposit with said company sufficient moneys
acceptable to said company to insure the
obtaining and the recording of such
satisfactions.
Franchise Taxes.
Any franchise or corporate tax open, levied
or imposed against the Seller or other owners in
the chain of title that may be a Lien on the
Closing Date shall not be an objection to title if
the Title Company omits same from the title policy
issued pursuant to the Title Commitment or excepts
same but insures the Purchaser against collection
thereof out of the Property.
Transfer Taxes; Title Insurance Premiums.
At the Closing, the Seller shall pay all
transfer and recording taxes (the "Transfer Tax
Payments") imposed pursuant to the Laws of the
State of Illinois or any other governmental
authority in respect of the transactions
contemplated by this Agreement by delivery to the
Title Company of sufficient funds to pay such
taxes together with any return (the "Transfer Tax
Return") required thereby which shall be duly
executed by the Seller and the Purchaser to the
extent required by applicable law. At the
Closing, the premiums due the Title Company to
obtain title insurance policies in the form
contemplated by the Title Commitment (as the same
may be amended pursuant to this Agreement), the
cost of obtaining the Survey and other Closing-
related expenses shall be paid in the manner set
forth on Schedule 6 hereto.
Representations and Warranties of the
Beneficiary.
The Beneficiary represents and warrants to the
Purchaser as follows:
(a) The Beneficiary is a duly formed and
validly existing limited partnership organized
under the laws of the State of Delaware and is
qualified under the laws of the State of Illinois
to conduct business therein.
(b) The Beneficiary has the full, legal
right, power and authority to execute and deliver,
and to direct, at its sole discretion, the Trustee
to execute and deliver this Agreement and all
documents now or hereafter to be executed by the
Beneficiary pursuant to this Agreement
(collectively, the "Beneficiary's Documents"), to
consummate the transaction contemplated hereby,
and to perform its obligations hereunder and under
the Beneficiary's Documents.
(c) This Agreement and the Beneficiary's
Documents do not and will not contravene any
provision of the limited partnership agreement of
the Beneficiary, any judgment, order, decree, writ
or injunction issued against the Beneficiary, or,
to the Beneficiary's actual knowledge, any
provision of any laws or governmental ordinances,
rules, regulations, orders or requirements
(collectively, the "Laws") applicable to the
Beneficiary. The consummation of the transactions
contemplated hereby will not result in a breach or
constitute a default or event of default by the
Beneficiary under any agreement to which the
Beneficiary or any of its assets are subject or
bound and will not result in a violation of any
Laws applicable to the Beneficiary.
(d) The Beneficiary has no actual knowledge
of any oral or written leases, licenses or other
occupancy agreements affecting any portion of the
Property (collectively, the "Leases") on the date
hereof, except for the Leases listed in Schedule 7
annexed hereto and made a part hereof. To
Beneficiary's actual knowledge, the copies of the
Leases furnished by the Beneficiary to the
Purchaser are true and complete and include all
amendments and modifications thereto. To the
Beneficiary's actual knowledge, the Leases are in
full force and effect, without any material
default by the Beneficiary or tenant thereunder.
To the Beneficiary's actual knowledge, the
Beneficiary has not given or received any notice
of default which remains uncured or unsatisfied,
with respect to any of the Leases. No tenant is
in default under or is in arrears in the payment
of any sums or in the performance of any
obligations required of it under its Lease. No
Rent has been heretofore prepaid for more than one
(1) month nor shall it be prepaid between the date
hereof and the Closing Date for more than one (1)
month. No guarantor(s) of any Lease has been
released or discharged, voluntarily or
involuntarily, or by operation of law, from any
obligation under or in connection with any Lease
or any transaction related thereto. There are no
brokers' commissions, finders' fees, or other
charges payable to any third party on behalf of
the Beneficiary as a result of or in connection
with any Lease or any transaction related thereto.
Each security deposit provided for under each
Lease shall be fully assigned to the Purchaser at
the Closing. No Tenant or any other party has or
has asserted any claim (other than for customary
refund at the expiration of a Lease) to all or any
part of any security deposit.
(e) To the Beneficiary's actual knowledge,
there are no pending actions, suits, proceedings
or investigations to which the Beneficiary is a
party before any court or other governmental
authority with respect to the Property owned by
the Beneficiary except as set forth on Schedule 8
hereto.
(f) Except as disclosed on Schedule 9
hereto, since the date the Beneficiary acquired
beneficial title to the Property (i) to
Beneficiary's actual knowledge, neither the
Beneficiary nor any third party has engaged in the
generation, use, manufacture, treatment, storage
or disposal of any Hazardous Substance (as
hereinafter defined) on the Property in violation
of Applicable Environmental Law (as hereinafter
defined), the cost of correction or remediation of
which would have a material adverse effect upon
the value of the Property, and (ii) to the
Beneficiary's actual knowledge, neither the
Beneficiary nor any third party has received any
written notice from any governmental authority
having jurisdiction over the Property of any
violation of Applicable Environmental Law with
respect to the Property which requires corrective
action, the cost of which would have a material
adverse effect upon the value of the Property.
Disclosure of any matter on Schedule 9 hereto
shall not constitute any admission by the
Beneficiary that such matter was material or a
violation of Applicable Environmental Law. As
used in this Agreement, the term "Hazardous
Substance" shall mean any substance, chemical or
waste that is currently listed as hazardous, toxic
or dangerous under Applicable Environmental Law.
As used in this Agreement, the term "Applicable
Environmental Law" shall mean the Comprehensive
Environmental Response, Compensation and Liability
Act ("CERCLA"), 42 U.S.C. 9601 et seq.; the
Resource Conservation and Recovery Act ("RCRA"),
42 U.S.C. 6901, et seq.; the Water Pollution
Control Act, 33 U.S.C. 1251 et seq.; the Clean
Air Act, 42 U.S.C. 7401 et seq.; and the Toxic
Substances Control Act, 15 U.S.C. 2601 et seq.;
as the foregoing have been amended from time to
time to the date of this Agreement; and any
similar state and local laws and ordinances and
the regulations implementing such statutes in
effect on the date hereof imposing liability or
establishing standards of conduct for
environmental protection.
(g) To the best of the Beneficiary's
knowledge and belief, all Property Information and
all other items delivered by the Beneficiary
pursuant to this Agreement, are true, accurate,
correct and complete in all material respects, and
fairly present the information set forth in a
manner that is not intended to be misleading. To
the best of the Beneficiary's knowledge and
belief, the copies of all documents and other
agreements delivered or furnished and made
available by the Beneficiary to the Purchaser
pursuant to this Agreement constitute all of and
the only Leases and other material agreements
relating to or affecting the ownership and
operation of the Property, there being no "side"
or other agreements, written or oral, in force or
effect, to which Seller is a party or to which the
Property is subject.
(h) To the best of the Beneficiary's
knowledge, the Beneficiary is not in default in
any material respect under any of the documents,
recorded or unrecorded referred to in the Title
Commitment, or any of the Licenses or Contracts.
(i) To the best of the Beneficiary's
knowledge and belief, there are no contracts of
any kind relating to the management, leasing,
operation, maintenance or repair of the Property,
except those "Contracts" listed on Schedule 3.
(j) The Beneficiary has not received any
written notice from any governmental authority
that the Property, and the use and operation
thereof, are in violation of any applicable Laws
(other than Applicable Environmental Laws
requiring corrective action which would not have a
material adverse effect upon the value of the
Property).
(k) For the purposes of this Section 6,
having a "material adverse effect" shall mean
imposing costs in excess of $25,000.
Survival of Representations.
The representations and warranties of the
Beneficiary set forth in this Section 6 (i) shall
be true, accurate and correct in all material
respects upon the execution of this Agreement and
shall be deemed to be repeated on and as of the
Closing Date (except as they relate only to an
earlier date), and (ii) except to the extent they
relate to matters which are the subject of
Estoppel Certificates shall remain operative and
shall survive the Closing and the execution and
delivery of the Deed for a period of one year
following the Closing Date and then shall expire,
and no action or claim based thereon shall be
commenced after such period. Representations
which relate to matters which are the subject of
Estoppel Certificates shall not survive the
Closing.
Discovery of Untrue Representation.
If at or prior to the Closing, (i) the
Purchaser shall become aware that any of the
representations or warranties made herein by the
Beneficiary is untrue, inaccurate or incorrect in
any material respect and shall give the
Beneficiary notice thereof at or prior to the
Closing, or (ii) the Beneficiary shall notify the
Purchaser that a representation or warranty made
herein by the Beneficiary is untrue, inaccurate or
incorrect, then the Beneficiary may, in its sole
discretion, elect by notice to the Purchaser to
adjourn the Closing one or more times for up to
sixty (60) days in the aggregate in order to cure
or correct such untrue, inaccurate or incorrect
representation or warranty. If any such
representation or warranty is not cured or
corrected by the Beneficiary on or before the
Closing Date (whether or not the Closing is
adjourned as provided above), then the Purchaser,
as its sole remedy for such inability of the
Beneficiary, shall elect either (i) to waive such
misrepresentations or breaches of warranties and
consummate the transactions contemplated hereby
without any reduction of or credit against the
Purchase Price, or (ii) to terminate this
Agreement by notice given to the Seller pursuant
to the provisions of Section 14.1. In the event
the Closing occurs, the Purchaser hereby expressly
waives, relinquishes and releases any right or
remedy available to it at law, in equity or under
this Agreement to make a claim against the Seller
for damages that the Purchaser may incur, or to
rescind this Agreement and the transactions
contemplated hereby, as the result of any of the
Beneficiary's representations or warranties being
untrue, inaccurate or incorrect if the Purchaser
knew, should have known or is deemed to have known
that such representation or warranty was untrue,
inaccurate or incorrect at the time of the Closing
and the Purchaser nevertheless closes title
hereunder.
Limited Nature of Representations.
The Purchaser acknowledges that neither the
Seller nor any of the Seller's Affiliates, nor any
of their agents or representatives, nor Broker has
made any representations or held out any
inducements to the Purchaser other than those
specifically set forth in this Section 6 and
Section 11. The Purchaser acknowledges that the
Seller, pursuant to the terms of this Agreement,
has afforded the Purchaser the opportunity for
full and complete investigations, examinations and
inspections of the Property and all Property
Information. The Purchaser acknowledges and
agrees that (i) the Property Information delivered
or made available to the Purchaser and the
Purchaser's Representatives by the Seller or the
Seller's Affiliates, or any of their agents or
representatives may have been prepared by third
parties and may not be the work product of the
Seller and/or any of the Seller's Affiliates; (ii)
neither the Seller nor any of the Seller's
Affiliates has made any independent investigation
or verification of the Property Information
prepared by such third parties; (iii) the
Purchaser is relying solely on its own
investigations, examinations and inspections of
the Property and those of the Purchaser's
Representatives; and (iv) the Seller expressly
disclaims any representations or warranties with
respect to the accuracy or completeness of the
Property Information prepared by such third
parties, and the Purchaser releases the Seller and
the Seller's Affiliates, and their agents and
representatives, from any and all liability with
respect thereto. The Purchaser or anyone claiming
by, through or under the Purchaser, hereby fully
and irrevocably releases the Seller and the
Seller's Affiliates from any and all claims that
it may now have or hereafter acquire against any
of the Seller or the Seller's Affiliates for any
cost, loss, liability, damage, expense, action or
cause of action, whether foreseen or unforeseen,
arising from or related to the presence of
environmentally hazardous, toxic or dangerous
substances, or any other conditions (whether
patent, latent or otherwise) affecting the
Property, except for claims against the Seller
based upon any obligations and liabilities of the
Seller expressly provided in this Agreement or the
breach of any representation provided by the
Beneficiary herein.
The provisions of this Section 6 shall survive the
Closing.
Representations and Warranties of the Purchaser.
The Purchaser represents and warrants to the
Seller as follows:
(a) The Purchaser is a duly formed and
validly existing limited partnership organized
under the laws of the State of Delaware, and is
qualified under the laws of the State of Illinois
to conduct business therein on the date hereof.
(b) The Purchaser has the full, legal right,
power, authority and financial ability to execute
and deliver this Agreement and all documents now
or hereafter to be executed by it pursuant to this
Agreement (collectively, the "Purchaser's
Documents"), to consummate the transactions
contemplated hereby, and to perform its
obligations hereunder and under the Purchaser's
Documents.
(c) This Agreement and the Purchaser's
Documents do not and will not contravene any
provision of the Limited Partnership Agreement of
the Purchaser, any judgment, order, decree, writ
or injunction issued against the Purchaser, or any
provision of any Laws applicable to the Purchaser.
The consummation of the transactions contemplated
hereby will not result in a breach or constitute a
default or event of default by the Purchaser under
any agreement to which the Purchaser or any of its
assets are subject or bound and will not result in
a violation of any Laws applicable to the
Purchaser.
(d) There are no pending actions, suits,
proceedings or investigations to which the
Purchaser is a party before any court or other
governmental authority which may have an adverse
impact on the transactions contemplated hereby.
The representations and warranties of the
Purchaser set forth in this Section 7 and elsewhere in
this Agreement shall be true, accurate and correct in
all material respects upon the execution of this
Agreement, shall be deemed to be repeated on and as of
the Closing Date (except as they relate only to an
earlier date) and shall survive the Closing.
Documents to be Delivered by the Seller at
Closing.
At the Closing, the Beneficiary and/or the
Trustee, as applicable, shall execute, acknowledge
and/or deliver the following to the Purchaser:
(a) A Trustees Deed (the "Deed") conveying
title to the Property in the form of Exhibit A
annexed hereto and made a part hereof.
(b) The Assignment and Assumption of Leases
and Security Deposits in the form of Exhibit B
annexed hereto and made a part hereof assigning
without warranty or representation all of the
Seller's right, title and interest, if any, in and
to the Leases in effect on the Closing Date, all
guarantees thereof and the security deposits
thereunder in the Seller's possession, if any (the
"Lease Assignment").
(c) The Assignment and Assumption of
Contracts and Licenses in the form of Exhibit C
annexed hereto and made a part hereof (the
"Contract and License Assignment") assigning
without warranty or representation all of the
Beneficiary's right, title and interest, if any,
in and to (i) all of the assignable licenses,
permits, certificates, approvals, authorizations
and variances issued for or with respect to the
Property by any governmental authority
(collectively, the "Licenses"), and (ii) all
assignable equipment leases, license agreements,
management agreements, maintenance agreements,
repair agreements, and other service contracts
relating to the operation of the Property
(collectively, the "Contracts") not terminated by
the Beneficiary pursuant to the terms of this
Agreement.
(d) The Assignment and Assumption of
Intangible Property in the form of Exhibit D
annexed hereto and made part hereof assigning
without warranty or representation all of the
Beneficiary's right, title and interest, if any,
in and to all intangible property owned by the
Beneficiary with respect to the operation of the
Property listed on Schedule 10 annexed hereto and
made a part hereof, including, without limitation,
the trade names "Tech Center I", "Tech Center II"
and the "Showroom Building" (the "Intangible
Property Assignment") (the Lease Assignment, the
Contract and License Assignment and the Intangible
Property Assignment are herein referred to
collectively as the "A & A Agreements").
(e) To the extent in the Seller's
possession, executed counterparts of all Leases
and New Leases and any amendments, guarantees and
other documents relating thereto, together with a
schedule of all tenant security deposits
thereunder and the accrued interest on such
security deposits payable to tenants which are in
the possession of or received by the Seller.
(f) A bill of sale in the form of Exhibit E
annexed hereto and made a part hereof (the "Bill
of Sale") conveying, transferring and selling to
the Purchaser without warranty or representation
all right, title and interest of the Beneficiary
in and to all Personal Property.
(g) Notices to the tenants of the Property
in the form of Exhibit F annexed hereto and made a
part hereof advising the tenants of the sale of
the Property to the Purchaser and directing that
rents and other payments thereafter be sent to the
Purchaser or as the Purchaser may direct.
(h) A certificate of a general partner of
the Beneficiary that the Beneficiary has taken all
necessary partnership action to authorize the
execution, delivery and performance of this
Agreement and the consummation of the transaction
contemplated hereby.
(i) Executed originals of all Estoppel
Certificates required by Section 4.3 and any other
Estoppel Certificates, received by the Seller from
tenants prior to the Closing Date and not
previously delivered to the Purchaser.
(j) To the extent in the Seller's possession
and not already located at the Property, keys and
access codes and cards to all entrance doors to,
and equipment and utility rooms located in, the
Property.
(k) To the extent in the Seller's possession
and not already located at the Property, all
Licenses.
(l) To the extent in the Seller's
possession, executed counterparts of all Contracts
and all warranties in connection therewith which
are in effect on the Closing Date and which are
assigned by the Seller.
(m) To the extent in the Seller's possession
and not located at the Building, plans and
specifications of the Buildings.
(n) The Transfer Tax Returns, if any.
(o) A "FIRPTA" affidavit sworn to by the
Beneficiary in the form of Exhibit H annexed
hereto and made a part hereof. The Purchaser
acknowledges and agrees that upon the Seller's
delivery of such affidavit, the Purchaser shall
not withhold any portion of the Purchase Price
pursuant to Section 1445 of the Internal Revenue
Code of 1986, as amended, and the regulations
promulgated thereunder.
(p) An Affidavit of Title and an ALTA
Statement, each executed by the Seller and in form
and substance acceptable to the Title Company and
to the Purchaser.
(q) The Title Policy issued by the Title
Company, dated as of the Closing Date in the
amount of the Purchase Price and otherwise in
accordance with the requirements of Section 5
hereof.
(r) A closing statement conforming to the
proration and other relevant provisions of this
Agreement.
(s) Copies of the most currently available
tax bills for the Property.
(t) An update of Schedule 7, prepared as of
the Closing Date, certified by the Beneficiary to
be true, complete and correct through the Closing
Date.
(u) An Illinois Responsible Property
Transfer Act disclosure document, if and as
required under Illinois law, or a certificate of
the Beneficiary to the effect that the Illinois
Responsible Property Transfer Act does not apply
to the sale of the Property.
(v) Lien waivers of the Broker, as required
by the Title Company.
(w) All other documents the Seller is
required to deliver by the Title Company in
accordance with the Title Commitment or pursuant
to the provisions of this Agreement.
Documents to be Delivered by the Purchaser at
Closing.
At the Closing, the Purchaser shall execute,
acknowledge and/or deliver, as applicable, the
following to the Seller:
(a) The cash portion of the Purchase Price
payable at the Closing pursuant to Section 2,
subject to apportionments, credits and adjustments
as provided in this Agreement.
(b) The Bill of Sale.
(c) (i) Copies of the Purchaser's
partnership agreement and partnership certificate
(if applicable) and, if required by law or its
partnership agreement, copies of partnership
resolutions and/or consents of the partners
authorizing the execution, delivery and
performance of this Agreement and the consummation
of the transactions contemplated by this
Agreement, all certified as true and correct by
the managing general partner of the Purchaser, or
in the absence thereof, then by all of the
Purchaser's general partners or other evidence
satisfactory to the Seller and its counsel as to
the authority of the party executing the A & A
Agreement on behalf of the Purchaser; (ii) a legal
existence certificate issued by the state of
incorporation of the Purchaser, dated within
thirty (30) days of the Closing Date; and (iii) a
qualification to do business certificate issued by
the State of Illinois, dated within thirty (30)
days of the Closing Date.
(d) The A & A Agreements.
(e) The Transfer Tax Payments together with
the Transfer Tax Return, if any.
(f) All other documents the Purchaser is
required to deliver by the Title Company or
pursuant to the provisions of this Agreement.
Operation of the Property prior to the Closing
Date.
Between the date hereof and the Closing Date, the
Seller shall have the right to continue to operate and
maintain the Property as it is currently being operated
and maintained. The Seller shall perform, when due,
all of the Seller's material obligations under the
Leases, Contracts, Licenses and other agreements
relating to the Property and otherwise in material
compliance with all applicable Laws. Except as
otherwise specifically provided herein, the Seller
shall deliver the Property at Closing in substantially
the same condition as it is on the date hereof,
reasonable wear and tear excepted. None of the
Personal Property, fixtures or Inventory shall be
removed from the Property, unless replaced by personal
property, fixtures or inventory of equal or greater
utility and value.
New Leases.
The Seller shall not modify, extend, renew or
cancel (subject to Section 10.2) any Lease or
enter into any proposed Lease of all or any
portion of the Property without the Purchaser's
prior consent in each instance, which consent
shall not be unreasonably withheld and shall be
given or denied, with the reasons for any such
denial, within five (5) business days after
receipt by the Purchaser of the Seller's notice
requesting the Purchaser's consent to the proposed
action relating to such existing or proposed Lease
together with all information reasonably requested
by the Purchaser to consider such consent. If the
Purchaser fails to reply to the Seller's request
for consent in a notice given within such period
or if the Purchaser expressly denies its consent
but fails to provide the Seller with the reasons
for such denial, the Purchaser's consent shall be
deemed to have been granted.
New Lease Expenses.
If after the date of this Agreement the
Seller enters into any Leases, or if there is
any extension or renewal of any Leases,
whether or not such Leases provide for their
extension or renewal, or any expansion or
modification of any Leases (each, a "New
Lease"), the Seller shall keep accurate
records of all expenses (collectively, "New
Lease Expenses") incurred in connection with
each New Lease, including, without
limitation, the following: (i) brokerage
commissions and fees relating to such leasing
transaction, (ii) expenses incurred for
repairs, improvements, equipment, painting,
decorating, partitioning and other items to
satisfy the tenant's requirements with regard
to such leasing transaction, (iii)
reimbursements to the tenant for the cost of
any of the items described in the preceding
clause (ii), (iv) reasonable legal fees for
services in connection with the preparation
of documents and other services rendered in
connection with the effectuation of the
leasing transaction, (v) rent concessions
relating to the demised space provided the
tenant has the right to take possession of
such demised space during the period of such
rent concessions, and (vi) expenses incurred
for the purpose of satisfying or terminating
the obligations of a tenant under a New Lease
to the landlord under another lease (whether
or not such other lease covers space in the
Property).
Allocation of New Lease Expenses.
The New Lease Expenses for each New
Lease allocable to and payable by the Seller
shall be determined by multiplying the amount
of such New Lease Expenses by a fraction, the
numerator of which shall be the number of
days contained in that portion, if any, of
the term of such New Lease commencing on the
date on which the tenant thereunder shall
have commenced to pay fixed rent ("Rent
Commencement Date") and expiring on the date
immediately preceding the Closing Date, and
the denominator of which shall be the total
number of days contained in the period
commencing on the Rent Commencement Date and
expiring on the date of the scheduled
expiration of the term of such New Lease,
without provision for any optional extensions
or renewals, and the remaining balance of the
New Lease Expenses for each New Lease shall
be allocable to and payable by the Purchaser
by addition to the Purchase Price. At the
Closing, the Purchaser shall reimburse the
Seller for all New Lease Expenses theretofore
paid by the Seller, if any, in excess of the
portion of the New Lease Expenses allocated
to the Seller pursuant to the provisions of
the preceding sentence. For purposes of this
Section 10.1.2, the Rent Commencement Date
under a renewal, extension, expansion or
modification of a Lease shall be deemed to be
(i) in the case of a renewal or extension
(whether effective prior to or after the
Closing, or in the form of an option
exercisable in the future), the first date
during such renewal or extension period after
the originally scheduled expiration of the
term of such Lease on which the tenant under
such Lease commences to pay fixed rent, (ii)
in the case of an expansion (whether
effective prior to or after the Closing, or
in the form of an option exercisable in the
future), the date on which the tenant under
such Lease commences to pay fixed rent for
the additional space, and (iii) in the case
of a modification not also involving a
renewal, extension or expansion of such
Lease, the effective date of such
modification agreement. The provisions of
this Section 10.1.2 shall survive the
Closing.
Termination of Existing Leases.
Notwithstanding anything to the contrary
contained in this Agreement, without the prior
written consent of the Purchaser, which shall not
be unreasonably withheld, the Seller shall not
institute summary proceedings against any tenant
or terminate any Lease as a result of a default by
the tenant thereunder prior to the Closing Date.
The Seller makes no representations and assumes no
responsibility with respect to (i) the continued
occupancy of the Property or any part thereof by
any tenant and (ii) the fulfillment by any tenant
of its obligations under any Lease. The removal
of a tenant whether by summary proceedings or
otherwise prior to the Closing Date shall not give
rise to any claim on the part of the Purchaser.
Further, the Purchaser agrees that it shall not be
grounds for the Purchaser's refusal to close this
transaction that any tenant is a holdover tenant
or in default under its Lease pursuant to any
economic or non-economic terms of its Lease on the
Closing Date and the Purchaser shall accept title
subject to such holding over or default without
credit against, or reduction of, the Purchase
Price.
Contracts.
Except as provided in Section 4.2(e), the
Seller shall not modify, extend, renew or cancel
(except as a result of a default by the other
party thereunder or if Purchaser has given notice
pursuant to Section 4.2(e) that a Contract is
unacceptable) any Contracts, or enter into any new
Contract without the Purchaser's prior consent in
each instance, which consent shall not be
unreasonably withheld or delayed, and if withheld,
the Purchaser shall promptly give the Seller a
notice stating the reasons therefor. If the
Purchaser fails to reply within five (5) business
days to the Seller's request for consent in a
notice given pursuant to this Section 10.3 or if
the Purchaser expressly denies its consent but
fails to provide the Seller with the reasons for
such denial, the Purchaser's consent shall be
deemed to have been granted.
10.4 Covenants of Seller.
The Seller hereby covenants with the
Purchaser as follows:
(a) The Seller will use reasonable efforts
to maintain current insurance policies in place,
including the current hazard insurance policy
which insures the Buildings in the amount of their
full replacement value.
(b) The Seller has paid or will pay in full
all bills and invoices for labor, goods, material
and services of any kind relating to the Property
and utility charges, relating to the period prior
to Closing, except to the extent such bills are
subject to proration and are to be paid by the
Purchaser pursuant to Section 3. Any alterations,
installations, decorations and other work required
to be performed under any and all agreements
affecting the Property have been or will be
completed and paid for in full.
(c) After the date hereof and prior to
Closing, the Seller shall not assign or otherwise
transfer all or any part of the Property.
(d) The Seller shall promptly notify the
Purchaser of any material change in any condition
with respect to the Property or of the occurrence
of any event or circumstance that makes any
representation or warranty of the Seller to the
Purchaser under this Agreement untrue or
misleading, or any covenant of Purchaser under
this Agreement incapable of being performed, it
being understood that the Seller's obligation to
provide notice to the Purchaser under this
paragraph shall in no way relieve the Seller of
any liability for breach by the Seller of any of
its representations, warranties or covenants under
this Agreement.
The covenant in Section 10.4(b) shall survive
the Closing.
Broker.
The Purchaser and the Seller represent and warrant
to each other that Cushman & Wakefield of Illinois (the
"Broker") is the sole broker with whom they have dealt
in connection with the Property and the transactions
described herein. The Seller shall be liable for, and
shall indemnify the Purchaser against, all brokerage
commissions or other compensation due to the Broker
arising out of the transaction contemplated in this
Agreement, which compensation shall be paid subject and
pursuant to a separate agreement between the Seller and
the Broker. Each party hereto agrees to indemnify,
defend and hold the other harmless from and against any
and all claims, causes of action, losses, costs,
expenses, damages or liabilities, including reasonable
attorneys' fees and disbursements, which the other may
sustain, incur or be exposed to, by reason of any claim
or claims by any broker, finder or other person, except
(in the case of the Purchaser as indemnitor hereunder)
the Broker, for fees, commissions or other compensation
arising out of the transactions contemplated in this
Agreement if such claim or claims are based in whole or
in part on dealings or agreements with the indemnifying
party. The obligations and representations and
warranties contained in this Section 11 shall survive
the termination of this Agreement and the Closing.
Casualty; Condemnation.
Damage or Destruction.
If a "material" part (as hereinafter defined)
of the Property is damaged or destroyed by fire or
other casualty, the Seller shall notify the
Purchaser of such fact and the Purchaser shall
have the option to terminate this Agreement upon
notice to the Seller given not later than ten (10)
days after receipt of the Seller's notice;
provided, however, that the Purchaser's election
shall be ineffective if within ten (10) days after
the Seller's receipt of the Purchaser's election
notice, the Seller shall elect by notice to the
Purchaser to repair such damage or destruction and
shall thereafter complete such repair within 90
days after the then scheduled Closing Date at the
time of the Purchaser's election. If the Seller
makes such election to repair, the Seller shall
have the right to adjourn the Closing Date one or
more times for up to 90 days in the aggregate in
order to complete such repairs and shall have the
right to retain all insurance proceeds which the
Seller may be entitled to receive as a result of
such damage or destruction. If (i) the Purchaser
does not elect to terminate this Agreement as to
the damaged Property, (ii) the Purchaser elects to
terminate this Agreement as to the damaged
Property but such election is ineffective because
the Seller elects to repair such damage and
completes such repair within such 90-day period
provided above, or (iii) there is damage to or
destruction of an "immaterial" part ("immaterial"
is herein deemed to be any damage or destruction
which is not "material", as such term is
hereinafter defined) of the Property, the
Purchaser shall close title as provided in this
Agreement and, at the Closing, the Seller shall,
unless the Seller has repaired such damage or
destruction prior to the Closing, (x) pay over to
the Purchaser the proceeds of any insurance
collected by the Seller plus an amount equal to
any deductible less the amount of all costs
incurred by the Seller in connection with the
repair of such damage or destruction, and
(y) assign and transfer to the Purchaser all
right, title and interest of the Seller in and to
any uncollected insurance proceeds which the
Seller may be entitled to receive from such damage
or destruction. A "material" part of the Property
shall be deemed to have been damaged or destroyed
if the cost of repair or replacement shall be
equal to or greater than $500,000.
Condemnation.
If, prior to the Closing Date, all or any
"significant" portion (as hereinafter defined) of
the Property is taken by eminent domain or
condemnation (or is the subject of a pending
taking which has not been consummated), the Seller
shall notify the Purchaser of such fact and the
Purchaser shall have the option to terminate this
Agreement upon notice to the Seller given not
later than ten (10) days after receipt of the
Seller's notice. If the Purchaser does not elect
to terminate this Agreement, or if an
"insignificant" portion ("insignificant" is herein
deemed to be any taking which is not
"significant", as such term is herein defined) of
the Property is taken by eminent domain or
condemnation, at the Closing the Seller shall
assign and turnover, and the Purchaser shall be
entitled to receive and keep, all awards or other
proceeds for such taking by eminent domain or
condemnation. A "significant" portion of the
Property means (i) 10% or more of any of the three
main buildings on the Land, (ii) a portion of the
parking areas if the taking thereof reduces the
remaining available number of parking spaces below
the minimum legally required, or (iii) a legally
required driveway on the Land if such driveway is
the predominant means of ingress thereto or egress
therefrom.
Termination.
If the Purchaser effectively terminates this
Agreement pursuant to Section 12.1 or 12.2, this
Agreement shall be terminated and the rights of
the parties shall be the same as if notice of
termination were given pursuant to Section 14.1.
Conditions Precedent to Closing.
Conditions Precedent to the Purchaser's
Obligations to Perform.
The Purchaser's obligation under this
Agreement to purchase the Property is subject to
the fulfillment of each of the following
conditions: (i) the representations and warranties
of the Seller contained herein shall be materially
true, accurate and correct as of the Closing Date
except to the extent they relate only to an
earlier date; (ii) the Seller shall be ready,
willing and able to deliver title to the Property
in accordance with the terms and conditions of
this Agreement; (iii) any conditions precedent to
the Purchaser's obligation to purchase the
Property which is validly listed in the
Purchaser's Termination Notice as being
unsatisfied has been satisfied; (iv) the Seller
shall have delivered all the documents and other
items required pursuant to Section 8, and shall
have performed all other covenants, undertakings
and obligations, and complied with all conditions
required by this Agreement to be performed or
complied with by the Seller at or prior to the
Closing; and (v) the physical condition of the
Property shall be substantially the same on the
Closing Date as on the date hereof, reasonable
wear and tear excepted, unless the alteration of
said physical condition is the result of a
casualty described in Section 12 hereof.
Conditions Precedent to the Seller's
Obligations to Perform.
The Seller's obligation under this Agreement
to sell the Property to the Purchaser is subject
to the fulfillment of each of the following
conditions: (i) the representations and warranties
of the Purchaser contained herein shall be
materially true, accurate and correct as of the
Closing Date; (ii) the Purchaser shall have
delivered the funds required hereunder and all the
documents to be executed by the Purchaser set
forth in Section 9 and shall have performed all
other covenants, undertakings and obligations, and
complied with all conditions required by this
Agreement to be performed or complied with by the
Purchaser at or prior to the Closing; (iii) all
consents and approvals of governmental authorities
and parties to agreements to which the Purchaser
is a party or by which the Purchaser's assets are
bound that are required with respect to the
consummation of the transactions contemplated by
this Agreement shall have been obtained and copies
thereof shall have been delivered to the Seller at
or prior to the Closing; and (iv) the additional
matters set forth in Schedule 11 annexed hereto
and made a part hereof shall have occurred or been
delivered to the Seller, as applicable, at or
prior to the Closing.
Remedies Upon Failure to Satisfy
Conditions.
In the event that any condition contained in
Sections 13.1 or 13.2 is not satisfied, the party
entitled to the satisfaction of such condition as
a condition to its obligation to close title shall
have as its sole remedy hereunder the right to
elect to (i) waive such unsatisfied condition
whereupon title shall close as provided in this
Agreement or (ii) proceed as provided in Section
14 hereof.
Remedies.
Seller's Inability to Perform.
If the Closing fails to occur by reason of
the Seller's inability to perform its obligations
under this Agreement which has not been waived
pursuant to Section 13.3, then the Purchaser, as
its sole remedy for such inability of the Seller,
may terminate this Agreement by notice to the
Seller. If the Purchaser elects to terminate this
Agreement, then this Agreement shall be terminated
and neither party shall have any further rights,
obligations or liabilities hereunder, except as
otherwise expressly provided herein (collectively,
the "Surviving Obligations"), and except that the
Purchaser shall be entitled to a return of the
Deposit provided the Purchaser is not otherwise in
default hereunder. Except as set forth in this
Section 14.1, the Purchaser hereby expressly
waives, relinquishes and releases any other right
or remedy available to it at law, in equity or
otherwise by reason of the Seller's inability to
perform its obligations hereunder.
Notwithstanding anything to the contrary herein,
if the Seller's inability to perform its
obligations under this Agreement is a result of
any action of, or failure to act by, the Purchaser
or any of the Purchaser's Representatives, the
Purchaser shall not be relieved of its obligations
under this Agreement and Purchaser shall not be
entitled to any right or remedy provided in this
Section 14.1 or elsewhere in this Agreement.
Purchaser's Failure to Perform.
In the event of a default hereunder by the
Purchaser or if the Closing fails to occur by
reason of the Purchaser's failure or refusal to
perform its obligations hereunder, then the Seller
may terminate this Agreement by notice to the
Purchaser. If the Seller elects to terminate this
Agreement, then this Agreement shall be terminated
and the Seller may retain the Deposit as
liquidated damages for all loss, damage and
expenses suffered by the Seller, it being agreed
that the Seller's damages are impossible to
ascertain, and neither party shall have any
further rights, obligations or liabilities
hereunder, except for the Surviving Obligations.
Nothing contained herein shall limit or restrict
the Seller's ability to pursue any rights or
remedies it may have against the Purchaser with
respect to the Surviving Obligations. Except as
set forth in this Section 14.2 and the Surviving
Obligations, the Seller hereby expressly waives,
relinquishes and releases any other right or
remedy available to them at law, in equity or
otherwise by reason of the Purchaser's default
hereunder or the Purchaser's failure or refusal to
perform its obligations hereunder.
Notwithstanding anything to the contrary herein,
if the Purchaser's default or the Purchaser's
failure or refusal to perform its obligations
under this Agreement is a result of any action of,
or failure to act by, the Seller or any of the
Seller's Affiliates, the Seller shall not be
relieved of its obligations under this Agreement
and the Seller shall not be entitled to any right
or remedy provided in this Section 14.2 or
elsewhere in this Agreement.
Seller's Failure to Perform.
If the Closing fails to occur by reason of
the Seller's failure or refusal to perform its
obligations hereunder which has not been waived by
the Purchaser, then the Purchaser, as its sole
remedy hereunder, may (i) terminate this Agreement
by notice to the Seller or (ii) seek specific
performance from the Seller. As a condition
precedent to the Purchaser exercising any right it
may have to bring an action for specific
performance as the result of the Seller's failure
or refusal to perform their obligations hereunder,
the Purchaser must commence such an action within
ninety (90) days after the occurrence of such
default. The Purchaser agrees that its failure to
timely commence such an action for specific
performance within such ninety (90) day period
shall be deemed a waiver by it of its right to
commence such an action. The Seller waives any
requirement that the Purchaser tender the Purchase
Price or any portion of the Purchase Price as a
prerequisite to enforcement of its rights and
remedies under this Agreement so long as the
Purchaser establishes its readiness and capability
to perform its obligations under this Agreement.
Notwithstanding anything to the contrary herein,
if the Seller's failure or refusal to perform its
obligations under this Agreement is a result of
any action of, or failure to act by, the Purchaser
or any of the Purchaser's Representatives, the
Purchaser shall not be relieved of its obligations
under this Agreement and Purchaser shall not be
entitled to any right or remedy provided in this
Section 14.3 or elsewhere in this Agreement.
Escrow.
The Escrow Agent shall hold the Downpayment and
all interest accrued thereon, if any (collectively, the
"Deposit") in escrow and shall dispose of the Deposit
only in accordance with the provisions of that certain
Escrow Agreement of even date herewith by and among the
Escrow Agent, the Purchaser and the Seller relating to
the Property (the "Escrow Agreement") in the form of
Exhibit I hereto. Simultaneously with their execution
and delivery of this Agreement, the Purchaser and the
Seller shall furnish the Escrow Agent with their true
Federal Taxpayer Identification Numbers so that the
Escrow Agent may file appropriate income tax
information returns with respect to any interest earned
on or credited to the Deposit. The party entitled to
the economic benefit of the Deposit representing
interest earned on the Downpayment shall be the party
responsible for the payment of any tax due thereon.
The provisions of the Escrow Agreement shall
survive the termination of this Agreement and the
Closing.
Notices.
All notices, elections, consents, approvals,
demands, objections, requests or other communications
which the Seller or the Purchaser may be required or
desire to give pursuant to, under or by virtue of this
Agreement must be in writing and (i) delivered by hand
to the addresses set forth below, or (ii) (a) sent by
express mail or courier (for next business day
delivery), or (b) sent by certified or registered mail,
return receipt requested with proper postage prepaid,
addressed as follows:
If to the Seller:
Dean Witter Realty Income Partnership I, L.P.
c/o Dean Witter Realty Inc.
Two World Trade Center
64th Floor
New York, NY 10048
Attention: Robert B. Austin
with copies to:
Vincent M. Sacchetti, Esq.
Bingham, Dana & Gould LLP
150 Federal Street
Boston, Massachusetts 02110
If to the Purchaser:
Great Lakes REIT, Inc.
823 Commerce Drive, Suite 300
Oak Brook, Illinois 60523
Attention: Raymond M. Braun
with a copy to:
McBride Baker & Coles
500 W. Madison Street, 40th Floor
Chicago, IL 60661
Attention: Adam E. Berman, Esq.
The Seller or the Purchaser may designate another
addressee or change its address for notices and other
communications hereunder by a notice given to the other
parties in the manner provided in this Section 16. A
notice or other communication sent in compliance with
the provisions of this Section 16 shall be deemed given
and received (i) if by hand, at the time of the
delivery thereof to the receiving party at the address
of such party set forth above (or to such other address
as such party has designated as provided above),
(ii) if sent by express mail or overnight courier, on
the date it is delivered to the other party, or
(iii) if sent by registered or certified mail, on the
third business day following the day such mailing is
made.
Property Information and Confidentiality.
The Purchaser agrees that, prior to the Closing,
all Property Information shall be kept strictly
confidential and shall not, without the prior consent
of the Seller, be disclosed by the Purchaser or the
Purchaser's Representatives, in any manner whatsoever,
in whole or in part, and will not be used by the
Purchaser or the Purchaser's Representatives, directly
or indirectly, for any purpose other than evaluating
the Property. Moreover, the Purchaser agrees that,
prior to the Closing, the Property Information will be
transmitted only to the Purchaser's Representatives (i)
who need to know the Property Information for the
purpose of evaluating the Property, and who are
informed by the Purchaser of the confidential nature of
the Property Information and (ii) who agree to be bound
by the terms of this Section 17 and Section 6.3. The
provisions of this Section 17 shall in no event apply
to Property Information which is a matter of public
record and shall not prevent the Purchaser from
complying with Laws, including, without limitation,
governmental regulatory, disclosure, tax and reporting
requirements.
Press Releases.
The Purchaser and Seller, for the benefit of
each other, hereby agree that between the date
hereof and the Closing Date, they will not release
or cause or permit to be released any press
notices, publicity (oral or written) or
advertising promotion relating to, or otherwise
announce or disclose or cause or permit to be
announced or disclosed, in any manner whatsoever,
the terms, conditions or substance of this
Agreement or the transactions contemplated herein,
without first obtaining the written consent of the
other party hereto not to be unreasonably
withheld. It is understood that the foregoing
shall not preclude either party from discussing
the substance or any relevant details of the
transactions contemplated in this Agreement with
any of its attorneys, accountants, professional
consultants or potential lenders, as the case may
be, or prevent either party hereto from complying
with Laws, including, without limitation,
governmental regulatory, disclosure, tax and
reporting requirements.
Return of Property Information.
In the event this Agreement is terminated,
the Purchaser and the Purchaser's Representatives
shall promptly deliver to the Seller all originals
and copies of the Property Information in the
possession of the Purchaser and the Purchaser's
Representatives and which was furnished by the
Seller.
Property Information Defined.
As used in this Agreement, the term "Property
Information" shall mean (i) all information and
documents in any way relating to the Property, the
operation thereof or the sale thereof (including,
without limitation, Leases, Contracts and
Licenses) furnished to, or otherwise made
available for review by, the Purchaser or its
directors, officers, employees, affiliates,
partners, brokers, agents or other
representatives, including, without limitation,
attorneys, accountants, contractors, consultants,
engineers and financial advisors (collectively,
the "Purchaser's Representatives"), by the Seller
or any of the Seller's Affiliates, or their agents
or representatives, including, without limitation,
their contractors, engineers, attorneys,
accountants, consultants, brokers or advisors, and
(ii) all analyses, compilations, data, studies,
reports or other information or documents prepared
or obtained by the Purchaser or the Purchaser's
Representatives containing or based, in whole or
in part, on the information or documents described
in the preceding clause (i), or the
Investigations, or otherwise reflecting their
review or investigation of the Property.
Remedies.
In addition to any other remedies available
to the Seller, the Seller shall have the right to
seek equitable relief, including, without
limitation, injunctive relief or specific
performance, against the Purchaser or the
Purchaser's Representatives in order to enforce
the provisions of this Section 17 and 6.3.
The provisions of this Section 17 shall survive
the termination of this Agreement and the Closing.
Access to Records.
For a period of three (3) years subsequent to the
Closing Date, the Seller, the Seller's Affiliates and
their employees, agents and representatives shall be
entitled to access during business hours to all
documents, books and records given to the Purchaser by
the Seller at the Closing for tax and audit purposes,
regulatory compliance, and cooperation with
governmental investigations upon reasonable prior
notice to the Purchaser, and shall have the right, at
their sole cost and expense, to make copies of such
documents, books and records.
Assignments.
This Agreement shall be binding upon and shall
inure to the benefit of the parties hereto and to
their respective heirs, executors, administrators,
successors and permitted assigns. This Agreement may
not be assigned by the Purchaser without the prior
written consent of the Seller and any assignment or
attempted assignment by the Purchaser without such
prior written consent shall constitute a default by the
Purchaser hereunder and shall be null and void
Entire Agreement, Amendments.
All prior statements, understandings,
representations and agreements between the parties,
oral or written, are superseded by and merged in this
Agreement, which alone fully and completely expresses
the agreement between them in connection with this
transaction and which is entered into after full
investigation, neither party relying upon any
statement, understanding, representation or agreement
made by the other not embodied in this Agreement. This
Agreement shall be given a fair and reasonable
construction in accordance with the intentions of the
parties hereto, and without regard to or aid of canons
requiring construction against the Seller or the party
drafting this Agreement. This Agreement shall not be
altered, amended, changed, waived, terminated or
otherwise modified in any respect or particular, and no
consent or approval required pursuant to this Agreement
shall be effective, unless the same shall be in writing
and signed by or on behalf of the party to be charged.
Merger.
Except as otherwise expressly provided herein, the
Purchaser's acceptance of the Deed shall be deemed a
discharge of all of the obligations of the Seller
hereunder and all of the Seller's representations,
warranties, covenants and agreements herein shall merge
in the documents and agreements executed at the Closing
and shall not survive the Closing.
Limited Recourse.
Provided the Seller does not place a mortgage
lien, or allow a mortgage lien to be placed, on the
Property, the Purchaser agrees that it does not have
and will not have any claims or causes of action
against any disclosed or undisclosed officer, director,
employee, trustee, shareholder, partner, principal,
parent, subsidiary or other affiliate of the Seller,
including, without limitation, Dean Witter Realty Inc.
and the parent and affiliates of Dean Witter Realty
Inc. (collectively, the "Seller's Affiliates"), arising
out of or in connection with this Agreement or the
transactions contemplated hereby. The Purchaser agrees
to look solely to the Beneficiary and the Beneficiary's
assets directly attributable to the
Building for the satisfaction of the Seller's liability
or obligation arising under this Agreement or the
transactions contemplated hereby, or for the
performance of any of the covenants, warranties or
other agreements of the Seller contained herein, and
further agrees not to sue or otherwise seek to enforce
any personal obligation against any of the Seller's
Affiliates with respect to any matters arising out of
or in connection with this Agreement or the
transactions contemplated hereby. The total liability
of the Seller hereunder shall in no event exceed
$100,000.
This Agreement is executed by the Trustee, not
personally but solely as trustee in the exercise of the
power and authority conferred upon and vested in it as
such trustee. It is expressly understood and agreed
that all of the warranties, indemnities,
representations, covenants, undertakings and agreements
herein made on the part of the Trustee are undertaken
by it solely in its capacity as trustee and not
personally. It is further understood and agreed that
the Trustee merely holds title to the property herein
described and has no agents, employees or control over
the management of the property and no knowledge of
other factual matters except as represented to it by
the Beneficiary. No personal liability or personal
responsibility is assumed by or shall at any time be
asserted or enforceable against the Trustee on account
of any warrranty, indemnity, representation, covenant,
undertaking or agreement of the Trustee in this
Agreement, all such liability being expressly waived by
every person now or hereafter claiming any right or
security hereunder, and the owner of any indebtedness
or cause of action for breach of any warranty,
indemnity, representation, covenant, undertaking or
agreement accruing hereunder shall look solely to the
trust estate for the payment thereof.
Miscellaneous.
Neither this Agreement nor any memorandum thereof
shall be recorded and any attempted recordation hereof
shall be void and shall constitute a default. This
Agreement may be executed in one or more counterparts,
each of which so executed and delivered shall be deemed
an original, but all of which taken together shall
constitute but one and the same instrument. Each of
the Exhibits and Schedules referred to herein and
attached hereto is incorporated herein by this
reference. The caption headings in this Agreement are
for convenience only and are not intended to be a part
of this Agreement and shall not be construed to modify,
explain or alter any of the terms, covenants or
conditions herein contained. If any provision of this
Agreement shall be unenforceable or invalid, the same
shall not affect the remaining provisions of this
Agreement and to this end the provisions of this
Agreement are intended to be and shall be severable.
This Agreement shall be interpreted and enforced in
accordance with the laws of the State of Illinois
without reference to principles of conflicts of laws.
Time of the Essence.
Time is of the essence with respect to this Agreement,
including but not limited to the occurrence of the
Closing as of the originally scheduled date.
IRS Form 1099-S Designation.
In order to comply with information reporting
requirements of Section 6045(e) of the Internal Revenue
Code of 1986, as amended, and the Treasury Regulations
thereunder, the parties agree (i) to execute an IRS
Form 1099-S Designation Agreement in the form attached
hereto as Exhibit K at or prior to the Closing to
designate the Title Company as the party who shall be
responsible for reporting the contemplated sale of the
Property to the Internal Revenue Service (the "IRS") on
IRS Form 1099-S; (ii) to provide the Title Company with
the information necessary to complete Form 1099-S;
(iii) that the Title Company shall not be liable for
the actions taken under this Section 25, or for the
consequences of those actions, except as they may be
the result of gross negligence or willful misconduct on
the part of the Title Company; and (iv) that the Title
Company shall be indemnified by the parties for any
costs or expenses incurred as a result of the actions
taken under this Section 25, except as they may be the
result of gross negligence or willful misconduct on the
part of the Title Company. The Title Company shall
provide all parties to this transaction with copies of
the IRS Forms 1099-S filed with the IRS and with any
other documents used to complete IRS Form 1099-S.
Attorney's Fees.
In any event that at any time Seller or Purchaser
shall institute any action or proceeding against the
other relating to this Agreement or any default
hereunder, then and in that event the prevailing party
in such action or proceeding shall be entitled to
recover from the other party its reasonable attorneys'
fees which shall be deemed to have accrued on the
commencement of such action or proceeding and shall be
payable whether or not such action is prosecuted to
judgment.
Counterparts.
This Agreement may be executed by the parties
hereto in separate counterparts, each of which when so
executed and delivered shall be an original, but all
such counterparts shall together constitute but one and
the same instrument.
28. Limitation of Liability.
Upon the Closing, the Purchaser shall neither
assume nor undertake to pay, satisfy or discharge any
liabilities, obligations or commitments of the Seller
other than those specifically agreed to between the
parties and set forth in this Agreement or which run
with the land. Except with respect to the foregoing
obligations, the Purchaser shall not assume or
discharge any debts, obligations, liabilities or
commitments of the Seller, whether accrued now or
hereafter, fixed or contingent, known or unknown.
29. Reasonable Efforts.
The Seller and the Purchaser shall use their
reasonable, diligent and good faith efforts, and shall
cooperate with and assist each other in their efforts,
to obtain such consents and approvals of third parties
(including, but not limited to, governmental
authorities), to the transaction contemplated hereby,
and to otherwise perform such actions as may be
reasonably necessary to effectuate transfer the
Property to the Purchaser in accordance with this
Agreement.
IN WITNESS WHEREOF, this Agreement has been duly
executed by the parties hereto as of the day and year
first above written.
BENEFICIARY:
DEAN WITTER REALTY INCOME
PARTNERSHIP I, L.P.
By: Dean Witter Realty Income
Properties I,Inc., its managing
general partner
By:/s/Robert B. Austin
Name:Robert B. Austin
Title:Vice President
PURCHASER:
GREAT LAKES REIT, L.P.
By: Great Lakes REIT,
Inc., its
General Partner
By:/s/Raymond M.
Braun
Name: Raymond M.
Braun
Title:Senior Vice
President
TRUSTEE:
AMERICAN NATIONAL BANK
AND TRUST COMPANY OF
CHICAGO, as Trustee
under Trust Nos. 59343
and 59344
By:
Name: Gregory S. Kasprzyk
Title: Vice President
