SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date of Report (Date of Earliest Event Reported): August 6, 1997
LINCAM PROPERTIES LTD. SERIES 85
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(Exact Name of Registrant as Specified in its Charter)
Illinois 2-99673 36-3377785
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(State or other) (Commission (IRS Employers
Jurisdiction of File Number) Identification No.)
Organization
125 South Wacker Drive, Suite 3100,
Chicago, Illinois 60606
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(Address of Principal Executive Offices) (Zip Code)
(312) 443-1477
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(Registrant's Telephone Number, Including Area Code)
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<PAGE>
5521 MEADOWBROOK DISTRIBUTION CENTER
Rolling Meadows
------------------------------------
ITEM 2. ACQUISITION OR DISPOSITION OF ASSETS
On August 6, 1997, Lincam Properties Ltd. Series 85 (the "Partnership")
sold the 50,000 square foot 5521 Meadowbrook Distribution Center for
$2,150,000 in an all cash transaction. The purchaser, DLS Real Estate,
Inc. is not affiliated with the Partnership or its General Partners, and
the purchase price for the property was determined by arm's-length
negotiations. After paying a selling commission of $64,500 and other
closing costs of approximately $20,200, the Partnership received net cash
proceeds of $1,870,720. The Partnership will make a special cash
distribution of $75 per unit of limited partner interest from the sale
proceeds.
5521 Meadowbrook Court was completed in December of 1986 and is constructed
of split-faced block and steel and has a flat metal deck roof. The
building is designed to be split into two 25,000 square foot units, each
with its own loading, parking and offices.
On January 11, 1994, the Partnership leased 25,000 square feet of the
distribution center to Samsung America, Inc. The thirty-eight month lease
commenced March 6, 1994 and provided for an annual base rent of $3.75 per
square foot in year one. The terms of the lease provide for three percent
annual increases in the base rent. The terms of the lease also provide
that the tenant be responsible for their proportionate share of all
operating expenses, including real estate taxes, during the term of the
lease. On November 29, 1996, the tenant amended the lease to occupy an
additional 25,000 square feet and to extend the term of the lease until
July 31, 2002. Effective March 1, 1997, the tenant occupies the entire
distribution center and is responsible for all operating expenses including
insurance and real estate taxes during the term of the lease. The base
rent for the original 25,000 square feet increased to $4.10 per square foot
on March 1, 1997. Under the terms of the First Amendment to Lease, the
base rent for the additional 25,000 square feet is $4.40 per square foot
commencing March 1, 1997. Commencing June 1, 1997, the tenant pays a base
rent of $4.40 for the entire 50,000 square feet. The lease provides for 3%
annual increases in base rent effective March 1.
An affiliate of the General Partners managed the distribution center for a
fee equal to 3% of the gross revenue of the property.
ITEM 7. FINANCIAL STATEMENTS, PRO FORMA FINANCIAL INFORMATION AND EXHIBITS
(a) 1. Pro Forma Financial Information
2. Pro Forma Estimates of Taxable Income and Funds
Generated. Not Applicable.
(b) Exhibits.
1. Agreement for the Purchase and Sale of Real Estate
dated June 4, 1997, entered into by and between
DLS Real Estate, Inc. known as Purchaser and
Lincam Properties Ltd. Series 85, as Seller.
2. Letter Agreement dated July 2, 1997 amending Agreement
for Purchase and Sale of Real Estate dated June 4, 1997.
3. Letter Agreement dated July 17, 1997 amending Agreement
for Purchase and sale of Real Estate dated June 4, 1997.
4. Letter Agreement dated July 25, 1997 amending Agreement
for Purchase and Sale of Real Estate dated June 4, 1997.
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<PAGE>
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.
LINCAM PROPERTIES LTD. SERIES 85
By: LincAm Properties, Inc.
Corporate General Partner
Dated: August 21, 1997 By: /s/ JOHN E. ALLEN
------------------------------------
John E. Allen
President of Corporate
General Partner
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<PAGE>
LINCAM PROPERTIES LTD SERIES 85
PRO FORMA FINANCIAL INFORMATION GENERATED FROM
SALE OF 5521 MEADOWBROOK COURT DISTRIBUTION CENTER
BALANCE SHEET AS OF DECEMBER 31, 1996
SCHEDULE A
GAAP BASIS PRO-FORMA PRO-FORMA
12/31/96 ADJUSTMENTS 12/31/96
---------- ----------- ----------
ASSETS:
CASH & CASH EQUIVALENTS . . $350,073 (29,999) 320,074
PREPAID EXPENSES AND
OTHER . . . . . . . . . . 1,944 -- 1,944
---------- ---------- ----------
TOTAL CURRENT ASSETS. . . 352,017 (29,999) 322,018
LAND . . . . . . . . . . . . . 816,616 (562,537) 254,079
BUILDINGS AND IMPROVEMENTS . . 5,702,499 (2,114,135) 3,588,364
---------- ---------- ----------
6,519,115 (2,676,672) 3,842,443
LESS: ACCUMULATED
DEPRECIATION . . . . . . . . (1,908,341) 601,921 (1,306,420)
---------- ---------- ----------
TOTAL INVESTMENT
PROPERTY. . . . . . . . 4,610,774 (2,074,751) 2,536,023
OTHER ASSETS . . . . . . . . . 13,342 -- 13,342
---------- ---------- ----------
TOTAL ASSETS. . . . . . . $4,976,133 (2,104,750) 2,871,383
========== ========== ==========
LIABILITIES AND PARTNERS' CAPITAL
- ---------------------------------
ACCOUNTS PAYABLE . . . . . . . $ 44,411 -- 44,411
ACCRUED EXPENSES . . . . . . . 1,943 (90) 1,853
ACCRUED REAL ESTATE TAXES. . . 146,250 (146,250) --
SECURITY DEPOSITS . . . . . . 21,154 (7,813) 13,341
---------- ---------- ----------
TOTAL LIABILITIES . . . . 213,758 (154,153) 59,605
PARTNERS' CAPITAL:
GENERAL PARTNERS:
CAPITAL CONTRIBUTIONS . . 2,000 -- 2,000
ALLOCATED NET INCOME. . . 105,817 (554) 105,263
CUMULATIVE DISTRIBU-
TIONS . . . . . . . . . (283,009) (18,952) (301,961)
---------- ---------- ----------
(175,192) (19,506) (194,698)
---------- ---------- ----------
LIMITED PARTNERS:
CAPITAL CONTRIBU-
TIONS . . . . . . . . . 22,479,645 -- 22,479,645
ALLOCATED NET INCOME . . 10,531,997 (54,891) 10,477,106
CUMULATIVE DISTRIBU-
TIONS . . . . . . . . . (28,074,075) (1,876,200) (29,950,275)
---------- ---------- ----------
4,937,567 (1,931,091) 3,006,476
---------- ---------- ----------
TOTAL PARTNERS'
CAPITAL . . . . . . . 4,762,375 (1,950,597) 2,811,778
---------- ---------- ----------
TOTAL LIABILITIES AND
PARTNERS' CAPITAL . . $4,976,133 (2,104,750) 2,871,383
========== ========== ==========
<PAGE>
LINCAM PROPERTIES LTD SERIES 85
PRO FORMA FINANCIAL INFORMATION GENERATED FROM
SALE OF 5521 MEADOWBROOK COURT DISTRIBUTION CENTER
STATEMENT OF OPERATIONS FOR THE YEAR ENDED DECEMBER 31, 1996
SCHEDULE B
GAAP BASIS PRO-FORMA PRO-FORMA
12/31/96 ADJUSTMENTS 12/31/96
---------- ----------- ----------
RENTAL INCOME . . . . . . . . $ 900,574 (143,847) 756,727
CHARGES TO TENANTS . . . . . . 115,626 (115,626) --
INTEREST INCOME. . . . . . . . 314,371 -- 314,371
OTHER INCOME . . . . . . . . . 22,045 -- 22,045
---------- ---------- ----------
TOTAL INCOME . . . . . . 1,352,616 (259,473) 1,093,143
---------- ---------- ----------
EXPENSES:
- --------
PROPERTY OPERATING EXPENSES . 504,861 (197,857) 307,004
DEPRECIATION . . . . . . . . . 213,998 (82,871) 131,127
MANAGEMENT FEES PAID TO
AFFILIATE OF GENERAL
PARTNERS . . . . . . . . . . 47,423 (15,649) 31,774
PROFESSIONAL SERVICES. . . . . 59,032 -- 59,032
GENERAL & ADMINISTRATIVE . . . 76,333 -- 76,333
PROVISION FOR LOSS ON SALE
OF INVESTMENT PROPERTY . . . 180,534 -- 180,534
---------- ---------- ----------
TOTAL EXPENSES. . . . . . 1,082,181 (296,377) 785,804
---------- ---------- ----------
OPERATING INCOME . . . . $ 270,435 36,904 307,339
========== ========== ==========
<PAGE>
LINCAM PROPERTIES LTD SERIES 85
PRO FORMA FINANCIAL INFORMATION GENERATED FROM
SALE OF 5521 MEADOWBROOK COURT DISTRIBUTION CENTER
BALANCE SHEET AS OF JUNE 30, 1997
SCHEDULE C
GAAP BASIS PRO-FORMA PRO-FORMA
6/30/96 ADJUSTMENTS 6/30/96
---------- ----------- ----------
ASSETS:
- ------
CASH & CASH EQUIVALENTS. . . . $ 397,152 (28,315) 368,837
ACCOUNTS RECEIVABLE . . . . . 33,858 (33,858) --
PREPAID EXPENSES AND OTHER . . 16,931 -- 16,931
---------- ---------- ----------
TOTAL CURRENT ASSETS . . 447,941 (62,173) 385,768
---------- ---------- ----------
LAND . . . . . . . . . . . . . -- -- --
BUILDINGS AND IMPROVEMENTS . . -- -- --
---------- ---------- ----------
-- -- --
LESS: ACCUMULATED
DEPRECIATION . . . . . . . . -- -- --
---------- ---------- ----------
TOTAL INVESTMENT
PROPERTY. . . . . . . . -- -- --
---------- ---------- ----------
PROPERTY HELD FOR SALE,
AT LOWER OF DEPRECIATED
COST OR ESTIMATED VALUE. . . 4,566,189 (2,074,750) 2,491,439
OTHER ASSETS . . . . . . . . . 14,745 -- 14,745
---------- ---------- ----------
TOTAL ASSETS . . . . . . $5,028,875 (2,136,923) 2,891,952
========== ========== ==========
LIABILITIES AND PARTNERS' CAPITAL
- ---------------------------------
ACCOUNTS PAYABLE . . . . . . . 24,835 -- 24,835
ACCRUED EXPENSES . . . . . . . 2,636 -- 2,636
ACCRUED REAL ESTATE TAXES . . 170,422 (150,466) 19,956
SECURITY DEPOSITS. . . . . . . 33,078 (18,333) 14,745
---------- ---------- ----------
TOTAL LIABILITIES . . . . 230,971 (168,799) 62,172
PARTNERS' CAPITAL:
GENERAL PARTNERS:
CAPITAL CONTRIBUTIONS . . 2,000 -- 2,000
ALLOCATED NET INCOME. . . 106,172 (730) 105,442
CUMULATIVE DISTRIBU-
TIONS . . . . . . . . . (283,009) (18,952) (301,961)
---------- ---------- ----------
(174,837) (19,682) (194,519)
---------- ---------- ----------
LIMITED PARTNERS:
CAPITAL CONTRIBUTIONS . . 22,479,645 -- 22,479,645
ALLOCATED NET INCOME. . . 10,567,171 (72,242) 10,494,929
CUMULATIVE DISTRIBU-
TIONS . . . . . . . . . (28,074,075) (1,876,200) (29,950,275)
---------- ---------- ----------
4,972,741 (1,948,442) 3,024,299
---------- ---------- ----------
TOTAL PARTNERS'
CAPITAL . . . . . . . . 4,797,904 (1,968,124) 2,829,780
---------- ---------- ----------
TOTAL LIABILITIES AND
PARTNERS' CAPITAL . . . $5,028,875 (2,136,923) 2,891,952
========== ========== ==========
<PAGE>
LINCAM PROPERTIES LTD SERIES 85
PRO FORMA FINANCIAL INFORMATION GENERATED FROM
SALE OF 5521 MEADOWBROOK COURT DISTRIBUTION CENTER
STATEMENT OF OPERATIONS FOR THE SIX MONTHS ENDED JUNE 30, 1997
SCHEDULE D
GAAP BASIS PRO-FORMA PRO-FORMA
6/30/96 ADJUSTMENTS 6/30/96
---------- ----------- ----------
INCOME:
- ------
RENTAL INCOME. . . . . . . . . $ 367,582 (78,875) 288,707
CHARGES TO TENANTS . . . . . . 79,371 (79,371) --
INTEREST INCOME. . . . . . . . 8,183 -- 8,183
OTHER INCOME . . . . . . . . . 12,709 -- 12,709
---------- ---------- ----------
TOTAL INCOME . . . . . . 467,845 (158,246) 309,599
---------- ---------- ----------
EXPENSES:
- --------
PROPERTY OPERATING EXPENSES. . 237,938 (90,003) 147,935
DEPRECIATION . . . . . . . . . 44,127 -- 44,127
MANAGEMENT FEES PAID
TO AFFILIATE OF
GENERAL PARTNERS . . . . . . 19,818 (4,747) 15,071
PROFESSIONAL SERVICES. . . . . 24,046 -- 24,046
GENERAL & ADMINISTRATIVE . . . 46,387 -- 46,387
PROVISION FOR LOSS ON
SALE OF INVESTMENT
PROPERTY . . . . . . . . . . 60,000 -- 60,000
---------- ---------- ----------
TOTAL EXPENSES. . . . . . 432,316 (94,750) 337,566
---------- ---------- ----------
OPERATING INCOME. . . . . $ 35,529 (63,496) (27,967)
========== ========== ==========
<PAGE>
LINCAM PROPERTIES LTD SERIES 85
NOTES TO PRO FORMA FINANCIAL INFORMATION GENERATED FROM
SALE OF 5521 MEADOWBROOK COURT DISTRIBUTION CENTER
1. For the year ended December 31, 1996 and for the six months ended
June 30, 1997, rental income property operating expenses,
depreciation expense and management fees have been decreased
by the amounts generated by 5521 Meadowbrook Court Distribution
Center. Note that no depreciation expense has been recorded
on this property for the six months ended June 30, 1997 in
accordance with SFAS #121.
2. For the year ended December 31, 1996 and for the six months ended
June 30, 1997, the net cash proceeds (rounded up to the nearest
whole dollar per limited partnership interest) from the sale has
been distributed to the partners.
<PAGE>
INDEX TO EXHIBITS
EXHIBIT
NO. DOCUMENT DESCRIPTION
- ------ --------------------
1 Agreement for the Purchase and Sale of Real Estate dated
June 4, 1997, entered into by and between DLS Real Estate,
Inc. known as Purchaser and Lincam Properties Ltd. Series 85,
as Seller.
2 Letter Agreement dated July 2, 1997 amending Agreement for
Purchase and Sale of Real Estate dated June 4, 1997.
3 Letter Agreement dated July 17, 1997 amending Agreement for
Purchase and sale of Real Estate dated June 4, 1997.
4 Letter Agreement dated July 25, 1997 amending Agreement for
Purchase and Sale of Real Estate dated June 4, 1997.
EXHIBIT 1
- ---------
AGREEMENT FOR PURCHASE
AND SALE OF REAL ESTATE
THIS AGREEMENT FOR PURCHASE AND SALE OF REAL ESTATE is entered into as
of June 4, 1997, by and between LINCAM PROPERTIES LTD. SERIES 85, an
Illinois limited partnership (together with its successors and assigns,
"Seller"), and DLS REAL ESTATE, INC., an Illinois corporation together with
its successors and assigns ("Purchaser").
WITNESSETH:
WHEREAS, Seller owns the land (the "Land") legally described on
Exhibit A attached hereto and made a part hereof, consisting of
approximately 2.54 acres located in the City of Rolling Meadows, County of
Cook, State of Illinois, and the Land is improved with an office/warehouse
building (the "Building") commonly known as 5521 Meadowbrook Court, Rolling
Meadows, Illinois (the Land, together with the Building and all other
improvements located on the Land are collectively referred to herein as the
"Property");
WHEREAS, Purchaser desires to purchase from Seller and Seller desires
to sell to Purchaser all of Seller's right, title and interest in and to
the Property on the terms and conditions set forth below;
NOW THEREFORE, in consideration of the mutual covenants hereinafter
set forth and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereby agree as
follows:
ARTICLE 1
DEFINITIONS
When used herein the following terms shall have the respective
meanings set forth opposite each such term:
1.1 AGREEMENT: this Agreement for Purchase and Sale of Real Estate.
1.2 BUILDING: as defined in the Recitals to this Agreement.
1.3 BUSINESS DAY: as defined in Section 9.15 hereof.
1.4 CITY: Rolling Meadows, Illinois.
1.5 CLOSING: as defined in Section 7.1 hereof.
1.6 CLOSING DATE: as defined in Section 7.1 hereof.
1.7 CLOSING ESCROWEE: as defined in Section 7.3 hereof.
1.8 COUNTY: Cook County, Illinois.
1.9 EARNEST MONEY: as defined in Section 3.2 hereof.
1.10 EFFECTIVE DATE: as defined in Section 9.18 hereof.
1.11 ESCROW: as defined in Section 7.3 hereof.
1.12 ESCROW AGREEMENT: as defined in Section 7.3 hereof.
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<PAGE>
1.13 LAND: as defined in the Recitals to this Agreement.
1.14 LEASE: shall mean that certain Lease dated January 11, 1994, by and
between Seller as landlord and Samsung America Inc. (the "Original
Tenant"), as amended by First Amendment to Lease dated November 30, 1996
between Landlord and Samsung Construction Equipment America Corp. as
Tenant.
1.15 PERMITTED EXCEPTIONS: as defined in Section 5.2 hereof.
1.16 PROPERTY: as defined in the Recitals to this Agreement.
1.17 PURCHASE PRICE: as defined in Section 3.1 hereof.
1.18 PURCHASER: as defined in the Preamble to this Agreement.
1.19 REMOVABLE LIENS: as defined in Section 5.4 hereof.
1.20 REVIEW PERIOD: as defined in Article 4 hereof.
1.21 SELLER: as defined in the Preamble to this Agreement.
1.22 SURVEY: as defined in Section 5.1 hereof.
1.23 SURVEYOR: Midwest Technical, Inc., Compass, Ltd., or such other
reputable Illinois registered land surveyor as Seller may select.
1.24 TAXES: real estate taxes, current installments of regular
assessments, special assessments, sewer charges, and any similar taxes and
charges imposed in respect of the Property.
1.25 TENANT: shall mean Samsung Construction Equipment America Corp.
1.26 TITLE COMMITMENT: as defined in Section 5.1 hereof.
1.27 TITLE INSURER: Chicago Title Insurance Company or such other
reputable title insurance company as Seller may select.
1.28 TITLE POLICY: as defined in Section 5.3 hereof.
ARTICLE 2
AGREEMENT TO PURCHASE AND SELL
Purchaser agrees to purchase, and Seller agrees to sell, the Property
(including the assignment of the Lease) at the Purchase Price and on the
terms set forth herein. In furtherance thereof, Seller agrees to convey to
Purchaser fee simple title to the Property together with all privileges,
rights, easements, hereditaments, and appurtenances thereto belonging; and
all right, title and interest of the titleholder thereof in and to any
streets, alleys, passages and other rights-of-way included therein or
adjacent thereto (before or after the vacation thereof) by a recordable
special warranty deed.
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<PAGE>
ARTICLE 3
PURCHASE PRICE
3.1 PURCHASE PRICE. The purchase price (the "Purchase Price") to be paid
by Purchaser to Seller for the Property shall be Two Million One Hundred
Fifty Thousand and 00/100 Dollars ($2,150,000.00).
3.2 EARNEST MONEY. Within three (3) business days after the Effective
Date, Purchaser will pay into a strict joint order escrow with Seller at
the Title Insurer the sum of $215,000.00 as earnest money (together with
any interest earned thereon, the "Earnest Money"). The Earnest Money may
be invested by the Title Insurer as Purchaser directs in United States
Treasury Bills or a federally insured money market account. Seller and
Purchaser shall share equally the cost of the joint order escrow, but
Purchaser shall bear the cost of any investment fee charged by the Title
Insurer as escrowee. If this Agreement is terminated: (a) by Purchaser
before the end of the Review Period in accordance with Article 4 hereof,
then, provided Purchaser has complied with its obligations under the fourth
grammatical paragraph of Article 4 hereof, the Earnest Money shall be
returned to Purchaser; (b) because of a material breach of this Agreement
by Seller, then the Earnest Money shall be returned to Purchaser; (c)
pursuant to Section 5.4 hereof, then, provided Purchaser has complied with
its obligations under the fourth grammatical paragraph of Article 4 hereof,
the Earnest Money shall be returned to Purchaser; or (d) pursuant to
Section 6.3 hereof, then the Earnest Money shall be returned to Purchaser.
Except as provided in the immediately preceding sentence, the Earnest Money
shall be paid to the party provided in this Agreement. The Earnest Money
shall be applied to the Purchase Price at the Closing.
3.3 CLOSING COSTS. Seller shall pay the cost of: (a) the Title Policy,
including the cost of extended coverage over the standard printed
exceptions; (b) the Survey (except as provided in Article 4 hereof); (c)
any stamp or transfer taxes imposed by State, County or local law; and (d)
obtaining and recording any releases of any mortgages, liens or other
encumbrances which are not Permitted Exceptions and for which Seller is
obligated to obtain a release under Section 5.4 hereof. Purchaser shall
pay the cost of: (x) recording the deed and any documents required by
Purchaser's lender; and (y) all other escrow and other fees imposed in
connection with the closing of Purchaser's loan, if any. Purchaser and
Seller shall share equally the escrow fees for the Closing and customary
endorsements requested by Purchaser. All other closing costs shall be
apportioned according to prevailing local custom. Except as expressly
provided in this Agreement to the contrary, each party shall pay its own
legal fees.
3.4 CLOSING PRORATIONS AND ADJUSTMENTS. The following items shall be
prorated and adjusted as of the Closing as follows:
(a) Base Rent (as defined in the Lease), received by Seller for the
month of Closing, as Landlord under the Lease as well as prepaid rent, if
any.
(b) Pursuant to the terms of the Lease, payment of Taxes (as such
term is defined in the Lease) is the responsibility of the Tenant for the
period prior to and subsequent to Closing, and therefore Taxes will not be
prorated. Any amounts which have been paid by the Tenant to Seller and are
being held by Seller on the Closing Date for payment of accrued but unpaid
Taxes will be credited to Purchaser at Closing. The 1996 real estate tax
credit to Purchaser will be Seventy Four Thousand Three Hundred Twenty
Three and 12/100 Dollars ($74,323.12) and the 1997 real estate tax credit
to Purchaser will be Eighty Seven Thousand Thirteen and 88/100 Dollars
($87,013.88), and accordingly, the aggregate real estate tax credit will be
One Hundred Sixty One Thousand Three Hundred Thirty Seven and 00/100
Dollars ($161,337.00). There will be no reproration of 1996 or 1997 real
estate taxes.
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<PAGE>
(c) Seller, as Landlord under the Lease, collects Operating
Expenses (as such term is defined in the Lease) from the Tenant in the
amount of Two Thousand Five Hundred and 00/100 Dollars ($2,500.00) each
month commencing March 1, 1997. Tenant's obligation for January and
February of 1997 was One Thousand Two Hundred Fifty and 00/100 Dollars
($1,250.00) per month. At Closing, Seller will deliver a statement setting
forth Operating Expenses collected from the Tenant and Operating Expenses
incurred by Landlord for the time period January 1, 1997 through the
Closing Date (the "Operating Statement"). Operating Expenses paid by the
Tenant to Seller for the period January 1, 1997 through the Closing Date
which have not been expended by Seller will be credited to Purchaser at
Closing, and Operating Expenses incurred by Seller in excess of those
collected from the Tenant for the period January 1, 1997 through the
Closing Date will be credited to Seller at Closing. By way of example, on
the Closing Date, if Seller has collected Fourteen Thousand Two Hundred
Thirty One and 00/100 Dollars ($14,231.00) in Operating Expenses from the
Tenant and Operating Expenses actually incurred by Seller are Fourteen
Thousand and 00/100 Dollars ($14,000.00) for the period January 1, 1997
through the date of Closing, Purchaser would receive a credit of Two
Hundred Thirty One and 00/100 Dollars ($231.00) at Closing. There will be
no reconciliation or reproration of Operating Expenses between Seller and
Purchaser after Closing.
(d) Seller, as Landlord under the Lease, collects insurance
expenses from Tenant in the amount of Two Hundred Fifty and 00/100 Dollars
($250.00) each month commencing March 1, 1997. Tenant's obligation for
January and February 1997 was One Hundred Twenty Five and 00/100 Dollars
($125.00) per month. The Operating Statement to be delivered as set forth
in Section 3.4(c) above evidences the insurance expenses collected from the
Tenant and insurance expenses incurred by Landlord for the time period
January 1, 1997, through the Closing Date. Insurance expenses paid by the
Tenant to Seller for the period January 1, 1997, through the Closing Date
which have not been expended by Seller will be credited to Purchaser at
Closing, and insurance expenses incurred by Seller in excess of those
collected from Tenant for the period January 1, 1997, through the Closing
Date will be credited to Seller at Closing. Purchaser, as of the date of
Closing, shall obtain its own insurance and may pass on such cost to Tenant
in accordance with the terms of the Lease. At the time of Closing, Seller
shall cancel all insurance policies, if any, carried by Seller with respect
to the Property, and shall be entitled to receive and retain any refund
obtained by Seller from its insurance carriers due to such cancellation.
(e) The First Amendment to Lease dated November 29, 1996, by and
between Seller and Tenant provides for Landlord to contribute Twenty Five
Thousand and 00/100 Dollars ($25,000.00) towards payment of the Expansion
Space Work (as defined in the First Amendment to Lease. Accordingly, at
closing, Landlord will either (i) provide Purchaser with documentation
evidencing that Seller has paid Tenant the Expansion Space Contribution (as
defined in the First Amendment), or (ii) Seller shall escrow Twenty Five
Thousand and 00/100 Dollars ($25,000.00) with Purchaser until such time as
Tenant has completed the Expansion Space Work or if the Expansion Space
Work is not completed by September 30, 1997, Purchaser may retain the
Expansion Space Contribution and, in either event, Seller shall have no
further obligations or liabilities with respect to the Expansion Space
Work.
If any other items of income and expense requiring proration arise prior to
Closing, then said items shall be prorated according to prevailing local
custom, including a credit to Purchaser for Tenant's security deposit of
$18,333.33.
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<PAGE>
3.5 PAYMENT OF PURCHASE PRICE. The Purchase Price, less the Earnest
Money (which shall be paid to Seller), plus or minus any adjustments,
credits or prorations provided for herein, shall be paid at the Closing by
wire transfer of current funds.
ARTICLE 4
REVIEW PERIOD
During the period of time beginning on the Effective Date and
continuing until thirty (30) days after the Effective Date (the "Review
Period"), Purchaser and its agents and contractors shall have the right to
enter upon the Property, subject to Tenant's rights under the Lease, and
conduct such tests and investigations as may be necessary for Purchaser to
determine whether any one or more of the following matters or any other
matter would make the Property unacceptable to Purchaser for acquisition in
its sole and absolute discretion:
(a) zoning of the Property;
(b) results of soils and environmental studies conducted by
Purchaser;
(c) the state of title to the Property as evidenced by the Title
Commitment;
(d) matters shown on the Survey;
(e) the physical condition of the Building and other improvements
on the Property;
(f) the terms and conditions of the Lease;
(g) the availability and sufficiency of utilities, including water,
sanitary sewer, storm/retention facilities, telephone, gas and electricity;
and
(h) the existence of any laws, regulations or judicial matters
affecting the Property.
Prior to Purchaser entering upon the Property, Purchaser shall give
Seller reasonable prior notice and such entry shall be subject to the terms
of the Lease. Seller shall have the right to accompany Purchaser during
such inspections and investigations; provided, however, in no event shall
invasive testing or procedures be permitted by Purchaser or its agents
without Seller's written consent which will not be unreasonably withheld
(except customary Phase I Environmental Assessments paid for by Purchaser
shall be permitted). Seller will provide Purchaser with copies of
materials in its possession relating to Purchaser's due diligence
investigations.
In the event Purchaser, in its sole and absolute discretion,
determines that any one or more of the foregoing matters or any other
matter would make the Property unacceptable to Purchaser for acquisition,
then Purchaser may elect to terminate this Agreement by delivering written
notice of termination to Seller at any time on or prior to the last day of
the Review Period, which notice shall specify the reason or reasons for
termination. If Purchaser fails to give Seller notice of termination on or
before the last day of the Review Period, Purchaser's right to terminate
this Agreement pursuant to this Article 4 will be deemed waived.
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If Purchaser so elects to terminate this Agreement during the Review
Period, Purchaser shall be reimbursed the Earnest Money. Purchaser shall
as a condition precedent to the return to Purchaser of the balance of the
Earnest Money: (i) return to Seller any materials Seller has delivered to
Purchaser in connection with Purchaser's due diligence investigations, and
(ii) deliver to Seller (without cost to Seller) any and all title reports,
surveys, soil tests, environmental studies or other reports or studies
pertaining to the Property which Purchaser has ordered or obtained prior to
or during the Review Period.
Purchaser shall repair any damage to the Property resulting from
Purchaser's activities on the Property under this Article 4, and shall
indemnify, defend, and hold harmless Seller and Seller's partners, and
their respective shareholders, officers, directors, employees and agents
from and against any and all loss, damage, liability or expense (including
reasonable attorneys' fees and other litigation expense and claims and
liens of mechanics or materialmen) any of the aforementioned persons or
entities may incur as a result of Purchaser's activities on the Property
under this Article 4. The obligations of Purchaser under this grammatical
paragraph shall survive the Closing or a termination of this Agreement,
without limitation as to time, notwithstanding anything contained to the
contrary in this Agreement.
Any investigation or inspection conducted by Purchaser or any agent
or representative of Purchaser, pursuant to this Agreement, in order to
verify independently Seller's satisfaction of any conditions precedent to
Purchaser's obligations hereunder or to determine whether Seller's
representations and warranties are true and accurate, shall not affect (or
constitute a waiver by Purchaser of) any of Seller's obligations hereunder
or Purchaser's reliance thereon; provided, however, that if Purchaser
becomes aware of Seller's failure to satisfy any condition precedent or
becomes aware of the untruth or inaccuracy of one or more of Seller's
representations and warranties, and Purchaser fails to promptly exercise
its rights or remedies hereunder with respect thereto (including any right
to terminate this Agreement), Purchaser shall be deemed to have irrevocably
waived the satisfaction of such condition precedent or irrevocably waived
its reliance on such representation or warranty and any claims or causes of
action for damages or otherwise against Seller on account thereof, as the
case may be.
ARTICLE 5
TITLE INSURANCE AND SURVEYS
5.1 TITLE COMMITMENT; PRELIMINARY SURVEY. Seller shall deliver to
Purchaser twenty-one (21) days after the Effective Date:
(a) a survey of the Property ("Survey") prepared by the Surveyor
and certified to Seller, Purchaser and the Title Insurer as having been
made in compliance with current ALTA/ACSM Land Survey Standards, and the
Survey shall be satisfactory to the Title Insurer for purposes of issuing
extended coverage over the standard printed exceptions in the Title Policy
and sufficient to obtain a survey endorsement; and
(b) a commitment (together with all subsequent versions thereof
issued prior to the end of the Review Period, the "Title Commitment") for
an ALTA 1992 Form Owner's Title Insurance Policy issued by the Title
Insurer and any underlying title documents.
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5.2 PERMITTED EXCEPTIONS. Prior to the end of the Review Period,
Purchaser shall provide Seller with a list of those title exceptions which
are satisfactory to Purchaser, in its sole but reasonable discretion, and
such list shall be attached to this Agreement as Exhibit B and shall
constitute the "Permitted Exceptions" hereunder unless and except to the
extent that the list is modified pursuant to Section 5.4 hereof. The
Permitted Exceptions shall include the following, it being understood by
the parties, however, that the following items shall remain subject to the
review and approval of Purchaser during the Review Period:
(a) general real estate taxes, general and special assessments and
any similar taxes or charges imposed in respect of the Property which are
not then due and owing;
(b) acts done or suffered to be done by Purchaser; and
(c) the Lease.
If Purchaser fails to submit a list of Permitted Exceptions on or
before the expiration of the Review Period, then the Permitted Exceptions
shall be deemed to be all matters appearing on the Survey and the most
recent Title Commitment submitted to Purchaser prior to the expiration of
the Review Period.
5.3 TITLE POLICY. At the Closing, Seller shall deliver to Purchaser an
ALTA 1992 Form Owner's Title Insurance Policy from the Title Insurer or in
lieu thereof a marked-up title commitment from the Title Insurer (either
being referred to herein as the "Title Policy") which in either case shall:
(i) be dated the Closing Date; (ii) name Purchaser as the insured; (iii)
have a liability amount equal to the Purchase Price; (iv) show Purchaser as
the owner of the Property in fee simple subject to no exceptions other than
the Permitted Exceptions; and (v) include extended coverage over the
standard printed exceptions. The Title Policy shall be conclusive evidence
as to good title as shown therein with respect to all matters insured by
the Title Policy and any endorsements requested by Purchaser.
5.4 OBJECTION AND CURE PERIOD. If the Title Commitment contains any
matters not constituting Permitted Exceptions or Removable Liens
(hereinafter defined), then Seller may, at its election, within ten (10)
days after receipt from Purchaser of the Permitted Exceptions or a
subsequent version of the Title Commitment, as the case may be: (a) cause
the non-permitted matters to be deleted from the Title Commitment; (b)
cause the Title Insurer to expressly waive or insure over such non-
permitted matters; or (c) cause the Title Insurer to agree to delete or
insure over such non-permitted matter at the Closing. Except for Removable
Liens, Seller shall have no obligation to elect the alternatives set forth
in clauses (a), (b) or (c) of this Section 5.4.
If Seller fails or elects not to take any of the actions described in
clauses (a), (b) or (c) above with respect to the non-permitted matters
within the aforementioned ten (10) day period, Purchaser may by written
notice to Seller delivered on or before five (5) days after written notice
by Seller that Seller failed or elected not to take any of the actions
described in clauses (a), (b) or (c) above elect, as its sole remedy, to:
(x) terminate this Agreement, in which case all of the Earnest Money shall
be returned to Purchaser provided Purchaser has complied with Purchaser's
obligations under the fourth grammatical paragraph of Article 4 hereof; or
(y) agree to take title as shown in the most recent Title Commitment, in
which case, the Permitted Exceptions shall be expanded to include the
additional matters not removed, waived or insured over, but with a
deduction from and offset against the Purchase Price for all Removable
Liens.
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As used in this Section 5.4, the term "Removable Liens" shall mean
liens which are of a definite and ascertainable amount which in the
aggregate can be removed at Closing by payment of monies constituting a
portion of the Purchase Price, and which either (A) represent mortgage
debt, (B) represent taxes or assessments which are then delinquent or which
are then due and payable, or (C) for any and all such liens not in
categories (A) or (B), do not exceed $100,000.00 taken together in the
aggregate.
5.5 NO FURTHER LIENS. Seller agrees it shall not from and after the
Effective Date voluntarily or consensually perform any act which results in
any additional exceptions to title that would survive the Closing without
Purchaser's prior written consent, not to be unreasonably withheld
ARTICLE 6
REPRESENTATIONS AND WARRANTIES
6.1 SELLER'S REPRESENTATIONS AND WARRANTIES. Seller represents and
warrants to Purchaser as follows:
6.1.1 AGREEMENTS. Neither the execution and delivery of this
Agreement by Seller nor the consummation of the transactions contemplated
hereby will result in any breach or violation of or default under any
judgement, decree, order, mortgage, lease, agreement, indenture or other
instrument to which Seller is a party.
6.1.2 AUTHORITY. Seller has full power and authority to execute
this Agreement and to sell, convey and transfer the Property as provided
for in this Agreement, and this Agreement is binding and enforceable
against Seller.
6.1.3 That the documents delivered to Purchaser hereunder, will be
all of the documents pertaining to the condition and operation of the
Property in Seller's possession, will be true and correct copies, and will
be in full force and effect, without default by any party and without any
right of set-off except as disclosed in writing at the time of such
delivery.
6.1.4 That to Seller's actual knowledge there are not any special
assessments, special tax districts, sanitary sewer separation fees or
outstanding obligations (contingent or otherwise) to governmental entities,
including any portion payable with the current tax bill (collectively
"Assessments"), with respect to the Property or any part thereof, nor are
there any pending condemnation actions, nor has Seller any knowledge of any
assessments or condemnation actions being contemplated.
6.1.5 That neither Seller nor the Property are the subject of any
pending, or to the actual knowledge of Seller, threatened claim, proceeding
or litigation.
6.1.6 That Seller is unaware of any material defect in the Property
or the operating systems servicing the Property.
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6.1.7 To the actual knowledge of Seller, the Property is not in
violation of any federal, state or local law, ordinance or regulation
relating to industrial hygiene, environmental conditions, hazardous waste
or toxic materials on, under or about the Property, including, without
limitation, soil and groundwater conditions. Seller further represents and
warrants that neither Seller nor, to the actual knowledge of Seller, any
third party has used, manufactured, stored or disposed of, on, under or
about the Property or transported to or from the Property, any flammable
explosives, radioactive materials or wastes, hazardous materials or wastes,
toxic materials or wastes, PCBs, underground storage tanks (which have not
been previously removed), or other similar materials or wastes
(collectively "Hazardous Materials").
6.1.8 Seller represents and warrants that only lease or tenancy
affecting the Property is the Lease and that there exists no defaults by
tenant or landlord under the Lease.
6.1.9 To the actual knowledge of Seller, there are no persons in
possession or occupancy of the Property or any part thereof, nor are there
any persons who have possessory rights in respect to the Property or any
part thereof, except pursuant to the Lease.
6.1.10 There are no condemnation or eminent domain proceedings
pending, or, to the actual knowledge of Seller, threatened,
with regard to the Property.
6.2 PURCHASER'S REPRESENTATIONS AND WARRANTIES. Purchaser represents and
warrants to Seller as follows:
6.2.1 AGREEMENTS. Neither the execution and delivery of this
Agreement by Purchaser nor the consummation of the transactions
contemplated hereby will result in any breach or violation of or default
under any judgement, decree, order, mortgage, lease, agreement, indenture
or other instrument to which Purchaser is a party.
6.2.2 AUTHORITY. Purchaser has full power and authority to execute
this Agreement and purchase the Property as provided for in this Agreement
and this Agreement is binding and enforceable against Purchaser.
6.3 BREACH OF REPRESENTATIONS AND WARRANTIES. Each party warrants that
each of the foregoing representations and warranties made by it in this
Article 6 is true as of the date of this Agreement and will also be true as
of the Closing. Each party shall notify the other promptly if such party
becomes aware prior to the Closing Date of any matter which would render
any of the representations or warranties of such party contained in this
Article 6 untrue in any material respect. If any of the foregoing
representations and warranties by Seller shall not be true as of the
Closing and such breach is other than as a result of Seller's deliberate or
willful act, Purchaser may alternatively as its sole remedy either (a)
waive such breach and close the transaction contemplated herein, or (b)
terminate this Agreement, in which event the Earnest Money shall be
returned to Purchaser. In the case of any other breach of any of the
foregoing representations or warranties by Seller or Purchaser, the parties
may exercise any of their remedies under Article 8.
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6.4 NO OTHER WARRANTIES. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS
AGREEMENT, PURCHASER AGREES TO ACCEPT THE PROPERTY IN "AS-IS" CONDITION AS
OF THE CLOSING DATE, AND PURCHASER AGREES THAT, EXCEPT AS EXPRESSLY
PROVIDED IN THIS AGREEMENT, SELLER HAS NOT MADE ANY REPRESENTATIONS OR
WARRANTIES, EXPRESS OR IMPLIED, TO PURCHASER REGARDING THE PROPERTY, THE
LEASE OR ANY OTHER MATTER RELATING TO THE TRANSACTIONS CONTEMPLATED BY THIS
AGREEMENT.
ARTICLE 7
THE CLOSING
7.1 DEFINITION; TIME AND PLACE. The performance by Seller and Purchaser
of their respective obligations under this Agreement directly or through
the completion of the escrow deposits required of them to be made and the
delivery of the Purchase Price to Seller by the Closing Escrowee after
delivery of the Title Policy to Purchaser and delivery of possession of the
Property to Purchaser, subject to the rights of Tenant under the Lease,
shall constitute the closing of the sale (the "Closing"). The date of the
Closing (the "Closing Date") shall be not later than 2:00 p.m. (C.S.T.) on
July 11, 1997. The Closing shall take place at the downtown Chicago office
of the Title Insurer.
7.2 POSSESSION. Possession of the Property shall be delivered at the
Closing, subject to the rights of Tenant under the Lease.
7.3 ESCROW. This sale shall be closed through a "New York style" escrow
(the "Escrow") with the Title Insurer (the "Closing Escrowee"), in
accordance with the general provisions of the usual form of escrow
agreement then in use by the Closing Escrowee, with such special provisions
inserted in the escrow agreement as may be required to conform with this
Agreement (the "Escrow Agreement"). The Escrow and Escrow Agreement shall
be auxiliary to this Agreement, and this Agreement shall not be merged into
nor in any manner superseded by the Escrow or the Escrow Agreement. Upon
the creation of the Escrow, payment of the Purchase Price and delivery of
the deed and other closing documents shall be made through the Escrow and
the Earnest Money shall be deposited in the Escrow. The attorneys for the
parties are hereby authorized to execute the Escrow Agreement and any
amendments thereto. Each party shall have the right to inspect all
documents prior to or at the time of deposit in the Escrow. The escrow fee
for the Escrow shall be shared equally by the parties, except that the
escrow fees attributable to any ancillary money lender's agreement shall be
borne by Purchaser alone.
7.4 DOCUMENTS TO BE DELIVERED BY SELLER AT CLOSING. At the Closing,
Seller shall deliver or cause to be delivered to Purchaser directly or, if
either party elects, through the Escrow, the following, each of which shall
be in form reasonably satisfactory to Purchaser and (if applicable) the
Title Insurer:
(a) a duly executed and acknowledged special warranty deed to the
Property subject only to the Permitted Exceptions;
(b) the Title Policy;
(c) evidence of authorization of Seller as to the execution of this
Agreement and the sale of the Property to Purchaser and the performance of
other acts required hereunder;
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(d) an affidavit to the effect that Seller is not a foreign person
under Section 1445(b) of the United States Internal Revenue Code;
(e) an original Lease;
(f) a certificate of inapplicability of the Illinois Responsible
Property Transfer Act.
(g) all other documents (if any) required, pursuant to other
provisions of this Agreement or to the Escrow Agreement, to be executed and
delivered by Seller; and
(h) such other instruments and documents, including, but not
limited to, an ALTA Statement and a gap undertaking, as may be reasonably
required by the Title Insurer or Purchaser in order to carry out the
purposes of this Agreement.
7.5 DOCUMENTS TO BE DELIVERED BY PURCHASER AT CLOSING. At the Closing,
Purchaser shall deliver or cause to be delivered to Seller directly, or if
either party elects through the Escrow, the following, each of which shall
be in form reasonably satisfactory to Seller and (if applicable) the Title
Insurer:
(a) the Purchase Price, plus or minus adjustments, credits and
prorations as provided for herein;
(b) evidence of authorization of Purchaser as to the execution of
this Agreement and the purchase of the Property from Seller and the
performance of the other acts required hereunder and the transactions
contemplated hereby;
(c) all other documents required pursuant to other provisions of
this Agreement or the Escrow Agreement to be executed and delivered by
Purchaser; and
(d) such other instruments and documents as may be reasonably
required in order to carry out the purpose of this Agreement, including,
but not limited to, an ALTA Statement.
7.6 DOCUMENTS TO BE JOINTLY DELIVERED BY SELLER AND PURCHASER AT CLOSING.
At the Closing, Seller and Purchaser shall each execute and deliver,
directly, or if either party elects, through the Escrow, the following,
each of which shall be in form reasonably satisfactory to both parties and
(if applicable) the Title Insurer:
(a) applicable transfer tax declarations for the State of Illinois,
the County and any necessary municipal transfer declarations;
(b) a Closing Statement (in triplicate);
(c) an Assignment and Assumption Agreement in the form of Exhibit C
attached hereto and made a part hereof; and
(d) a letter to Tenant signed by Seller and Purchaser advising
Tenant that (i) the Property has been sold to Purchaser, (ii) all of
Seller's right, title and interest in, to and under the Lease have been
assigned to Purchaser as of the Closing Date, and (iii) Purchaser has
assumed all of Seller's obligations under the Lease from and after the
Closing Date, and directing Tenant to pay all future rental under the Lease
in accordance with Purchaser's directions and to identify Purchaser as the
"Landlord" under all insurance policies required to be maintained by Tenant
under the Lease.
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ARTICLE 8
DEFAULTS; REMEDIES
8.1 PURCHASER'S DEFAULT. If the transaction contemplated hereby does not
close by reason of a default by Purchaser in any of the terms hereof and
such default is not cured within five (5) Business Days after written
notice of such default is given by Seller to Purchaser, then Seller may, as
its sole option and in lieu of any and all other legal and equitable
remedies which Seller may have hereunder for failure by Purchaser to close
the transaction contemplated hereby, receive the Earnest Money as
liquidated damages. In addition, Seller may pursue against Purchaser any
and all other rights and remedies available at law or equity to obtain from
Purchaser: (i) copies of all soil tests, environmental studies, and other
tests and studies pertaining to the Property obtained by Purchaser, and
(ii) reimbursement for the payment of all survey costs and expenses
properly allocable to Purchaser under Article 4 hereof. Nothing contained
in this Section 8.1 shall limit, restrict or otherwise affect any claim or
cause of action Seller may have against Purchaser under Purchaser's
indemnification obligations under this Agreement, and in connection with
any such claims or causes of action, Seller's recovery shall not be limited
to the Earnest Money or any other sum certain.
8.2 SELLER'S DEFAULT. If the transaction contemplated hereby does not
close by reason of a default by Seller in any of the terms hereof, and such
default is not cured within five (5) Business Days after written notice of
said default is given by Purchaser to Seller, then subject to the
limitations, exceptions and qualifications set forth below in this Section
8.2, Purchaser may rescind this Agreement and receive all sums held as
Earnest Money or pursue against Seller any other rights or remedies
available at law or in equity, including, without limitation, an action to
compel Seller's specific performance of this Agreement, all in such order
or concurrently as Purchaser may elect. Notwithstanding anything contained
herein to the contrary, Purchaser's rights and remedies upon Seller's
breach of a representation and warranty shall be subject to and governed by
Section 6.3 hereof. Notwithstanding anything contained herein to the
contrary, in no event shall Seller be liable to Purchaser for damages of
any kind (including direct, indirect or consequential damages) in excess of
Two Hundred Fifteen Thousand and 00/100 Dollars ($215,000.00), including,
without limitation, any loss or damage suffered by Purchaser in connection
with any agreement or understanding with any third party for the use, lease
or purchase of the Property or any portion thereof.
ARTICLE 9
MISCELLANEOUS
9.1 UNIFORM RISK ACT. The Uniform Vendor and Purchaser Risk Act as
enacted in the State of Illinois shall apply to this transaction.
9.2 PAYMENT OF REAL ESTATE BROKERS AND CONSULTANTS. Seller shall pay a
broker's commission to Podolsky and Associates L.P. in connection with this
transaction. Each party represents to the other that neither have engaged
or otherwise dealt with any other real estate broker in connection with the
Property or this transaction. Each party agrees to indemnify, defend and
hold the other and its partners and their respective officers, directors,
shareholders, agents and employees harmless from and against any claim for
a real estate broker's commission or fee by any other party claiming to
have been engaged by, or otherwise dealt with, Purchaser or Seller, as the
case may be in connection with the Property or this transaction.
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9.3 NOTICES. All notices and other communications which are required to
be, or which may be, given under this Agreement shall be in writing, and
shall be delivered at the addresses set out hereinbelow. Notice may be
given by personal delivery, recognized overnight courier, by United States
mail in the manner set forth below or by facsimile transmission. Notice
shall be deemed to have been duly given (a) if by personal delivery, on the
first occur of the date of actual receipt or refusal of delivery by any
person at the intended address, (b) if by overnight courier, on the first
(1st) Business Day after being delivered to a recognized overnight courier,
(c) if by mail, on the second (2nd) Business Day after being deposited in
the United States mail, certified or registered mail, return receipt
requested, postage prepaid, or (d) if by facsimile transmission, on the day
and at the time transmitted, as evidenced by the confirmation slip
generated by the sender's facsimile machine, addressed as follows:
If to Seller: Lincam Properties Ltd. Series 85
c/o Amli Realty Co.
125 South Wacker Drive
Suite 3100
Chicago, Illinois 60606
Attention: President
Facsimile: 312-443-1986
with a copy to: Mason & Wenk, Ltd.
10 South LaSalle Street
Suite 2650
Chicago, Illinois 60603
Attention: Keith J. Wenk, Esq.
Facsimile: 312-419-3130
If to Purchaser: DLS Real Estate, Inc./Franklin Partners LLC
9401 West Grand Avenue
Franklin Park, Illinois 60131
Attention: Mr. Donald J. Shoemaker, Vice President
Facsimile:
with a copy to: D'Ancona & Pflaum
30 North LaSalle Street
Suite 2900
Chicago, Illinois 60602
Attention: Marc S. Joseph, Esq.
Facsimile: 312-580-0923
or to such other address as either party may from time to time
specify as its address for the receipt of notices hereunder, in a notice to
the other party.
9.4 ASSIGNMENT. Purchaser may assign its rights hereunder with the prior
written consent of Seller; provided, however, that such consent shall not
be required if Purchaser assigns its rights hereunder to an entity
affiliated with Purchaser, 1800 Central I, L.L.C., an Illinois limited
liability company ("1800 Central") or the principles of Purchaser or 1800
Central.
Purchaser desires to exchange other property of like kind and
qualifying use within the meaning of Section 1031 of the Internal Revenue
Code of 1986, as amended ("IRC") and the Regulations promulgated
thereunder, for fee title in the Property. Purchaser expressly reserves
the right to assign its rights, but not its obligations, hereunder to a
Qualified Intermediary as provided in IRC Reg. 1.1031(k)-1(g)(4) on or
before the closing date provided for hereunder. The parties hereto agree
to cooperate with each other in effectuating such an exchange; provided,
however, that Seller shall not be required to incur any additional expenses
in connection with the exchange (beyond the normal and customary charges
imposed upon sellers).
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9.5 JOINT AND SEVERAL LIABILITY. If Purchaser or Seller is more than one
person or entity, then all obligations and/or liabilities of Purchaser or
Seller set forth herein or arising hereunder shall be the joint and several
obligations and/or liabilities of each party constituting Purchaser or
Seller.
9.6 ENTIRE AGREEMENT. This Agreement embodies the entire understanding
of the parties and there are no further or other agreements or
understandings, written or oral, in effect between the parties relating to
the subject matter hereof except as may be set forth in writing executed by
both parties contemporaneously with or subsequent to this Agreement.
9.7 SEVERABILITY. If any term or provision of this Agreement or any
application thereof shall be invalid or unenforceable, the remainder of
this Agreement and other applications thereof shall not be affected
thereby.
9.8 CAPTIONS; NUMBER. The captions contained in this Agreement are for
the convenience of reference only, and shall not affect the meaning,
interpretation or construction of this Agreement. As used in this
Agreement, the singular form shall include the plural and the plural shall
include the singular, to the extent that the context renders it
appropriate.
9.9 COUNTERPARTS. This Agreement may be executed in two more
counterparts, each of which shall be deemed to be an original and all of
which together shall be deemed to be one and the same instrument.
9.10 GOVERNING LAW; VENUE. This Agreement has been executed and
delivered, and is to be performed, in the State of Illinois, and this
Agreement and all rights, obligations and liabilities hereunder shall be
governed by, and construed in accordance with, the internal laws of the
State of Illinois. Purchaser hereby irrevocably waives any objection that
it may now or hereafter have to the laying of venue of any suit, action or
proceeding arising out of or relating to this Agreement brought in any
federal or state court sitting in Cook County, Illinois.
9.11 TIME OF THE ESSENCE. Time is of the essence of this Agreement.
9.12 SURVIVAL. All of the respective representations and warranties of
Seller and Purchaser hereunder, and all of their respective rights and
remedies with respect to the incorrectness or breach thereof, shall survive
the Closing Date for a period of one (1) year from the date of Closing.
Notwithstanding the foregoing, nothing in this Agreement shall be construed
to limit any rights which Purchaser may be entitled to by statutory law.
9.13 MODIFICATION. The provisions of this Agreement may not be amended,
changed or modified orally, but only by an agreement in writing signed by
the party against whom any amendment, change or modification is sought.
9.14 WAIVER. Except as otherwise expressly provided in this Agreement, no
waiver by a party of any breach of this Agreement or of any warranty or
representation hereunder by the other party shall be deemed to be a waiver
of any other breach by such other party (whether preceding or succeeding
and whether or not of the same or similar nature) and no acceptance of
payment or performance by a party after any breach by the other party shall
be deemed to be a waiver of any breach of this Agreement or of any
representation or warranty hereunder by such
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other party whether or not the first party knows such breach at the
time it accepts such payment or performance. Except as otherwise
expressly provided in this Agreement no failure or delay by a party to
exercise any right it may have by reason of the default of the other party
shall operate as a waiver of default or modification of this Agreement or
shall prevent the exercise of any right by the first party while the other
party continues to be so in default.
9.15 BUSINESS DAYS. If any date specified in this Agreement for the
Closing Date or for commencement or expiration of time periods for
termination or approvals or for notice occurs on a day other than a
Business Day, then any such date shall be postponed to the following
Business Day. As used herein, "Business Day" shall mean any day other than
a Saturday, Sunday or a holiday observed by national banks or the Title
Insurer.
9.16 NO RECORDING OF AGREEMENT. Neither party shall record this Agreement
without the prior written consent of the other.
9.17 LIMITATION OF LIABILITY. Purchaser agrees that the partners,
shareholders, officers, directors and employees of Seller shall have no
personal liability whatsoever with respect to the transactions described
herein. Further, Purchaser agrees that Seller's liability hereunder shall
at all times be limited to Seller's interest in the Property. Seller
agrees that the partners, shareholders, officers, directors and employees
of Purchaser shall have no personal liability whatsoever with respect to
the transaction described herein.
9.18 OFFER; EFFECTIVE DATE. The execution of this Agreement by the first
party to do so and delivery thereof to the other party constitutes an offer
to purchase or sell, as the case may be, and shall be automatically revoked
unless the party to which the offer is made shall execute and deliver at
least two (2) copies of this Agreement to the offering party at the address
given for notice herein on or before 5:00 p.m., local time, on the date
which is five (5) days after the date on which the offering party has
executed this Agreement as first set forth above. Regardless of any date
heretofore or hereafter inserted in this Agreement, the term "Effective
Date" as used herein shall be the date on which this Agreement is executed
and delivered in final form by the latter of Purchaser or Seller to so
execute and deliver it. Seller will discontinue marketing the Property as
of the Effective Date.
9.19 BULK SALES FILING. Seller shall notify the Illinois Department of
Revenue (the "Department") of the pending sale of the Property under this
Agreement pursuant to and in accordance with the requirements of Section
902(d) of the Illinois Income Tax Act and Section 5(j) of the Retailer's
Occupation Tax Act (collectively, the "Acts"). Seller, by giving such
notice to the Department, shall attempt to cause the Department to certify,
prior to the Closing, that Seller either has or does not have assessed, but
unpaid, taxes, penalties or interest due under the Acts. If the Department
issues a Bulk Sales Stop Order prior to Closing, Seller shall comply with
all requirements and obligations imposed by the Department so as not to
delay the Closing, including, without limitation, escrowing the amount to
be withheld under the Bulk Sales Stop Order with the Closing Escrowee. If
prior to the Closing, the Department has not made and issued a written
determination that Seller does not have assessed, but unpaid taxes,
penalties or interest due under the Acts and has not issued a Bulk Sales
Stop Order, Seller shall indemnify and defend Purchaser and hold Purchaser
harmless from and against any and all loss, damage, liability, cost and
expense which Purchaser may suffer or incur as a result of debts owed by
Seller to the department under the Acts, and such indemnification shall
survive the Closing until such time as the Department has made and issued a
written determination that Seller does not have assessed, but unpaid taxes,
penalties or interest due under the Acts.
- 15 -
<PAGE>
9.20 ESTOPPEL CERTIFICATE. Promptly after the Effective Date, Seller
shall request the Tenant to execute an estoppel certificate substantially
similar to the Estoppel Certificate attached as Exhibit D to the Lease (the
"Purchaser's Estoppel Certificate"). On or before June 27, 1997, Seller
shall deliver to Purchaser either (i) an original estoppel certificate in
the form of Purchaser's Estoppel Certificate signed by Tenant and dated on
or after the Effective Date; (ii) an original estoppel certificate in a
form other than Purchaser's Estoppel Certificate signed by Tenant and dated
on or after the Effective Date; or (iii) written notice from Seller to
Purchaser stating that Tenant has not signed any estoppel certificate dated
on or after the Effective Date. If Seller delivers the estoppel certificate
described in clause (ii) above or if Seller delivers the notice described
in clause (iii) above, Purchaser may, in its sole but reasonable discretion
and as its sole and exclusive remedy, terminate this Agreement by
delivering written notice of such termination to Seller at any time on or
before the expiration of the Review Period. If Purchaser fails to give
Seller timely notice of such termination under this Section 9.20,
Purchaser's termination right under this Section 9.20 shall be deemed
waived.
9.21 SUBORDINATION AND ATTORNMENT AGREEMENT. After the Effective Date,
Seller shall request the Tenant to execute a Subordination and Attornment
Agreement in form reasonably acceptable to Purchaser and Purchaser's
lender. If Purchaser does not obtain a Subordination and Attornment
Agreement in form reasonably acceptable to Purchaser on or before June 27,
1997, Purchaser may, in its sole but reasonable discretion and as its sole
and exclusive remedy, terminate this Agreement by delivering written notice
of such termination to Seller at any time on or before the expiration of
the Review Period. If Purchaser fails to give Seller timely notice of such
termination under this Section 9.21, Purchaser's termination right under
this Section 9.21 shall be deemed waived.
IN WITNESS WHEREOF, the parties have executed this Agreement as of
the date first written above.
PURCHASER
DLS REAL ESTATE, INC., an Illinois
corporation
Attest:
By: By: /s/ Donald J. Shoemaker
-------------------- ------------------------------
Title: Title: Vice President
-------------------- ------------------------------
Date: 6/30/97
------------------------------
SELLER
LINCAM PROPERTIES LTD. SERIES 85,
an Illinois limited partnership
By: LINCAM PROPERTIES, INC.,
its corporate general partner
By: /s/ JOHN E. ALLEN
------------------------------
Title: President
------------------------------
Date: 6/4/97
------------------------------
- 16 -
<PAGE>
EXHIBIT A
LEGAL DESCRIPTION OF THE LAND
[If the legal description of the Property is not
available at the time of the signing of this Agreement, it shall be
provided prior to the end of the Review Period based on the Preliminary
Survey to be obtained pursuant to Section 5.1 of this Agreement.]
<PAGE>
EXHIBIT B
PERMITTED EXCEPTIONS
[To be provided by Purchaser during the Review Period]
<PAGE>
EXHIBIT C
ASSIGNMENT OF LEASE
AND
ASSUMPTION AGREEMENT
THIS ASSIGNMENT OF LEASE AND ASSUMPTION AGREEMENT (the "Assignment")
dated as of _______________, 1997, is by and between LINCAM PROPERTIES LTD.
SERIES 85, an Illinois limited partnership (referred to herein as
"Assignor") and DLS REAL ESTATE, INC., an Illinois corporation (referred to
herein as "Assignee").
WITNESSETH
WHEREAS, Assignor as Seller and Assignee as Purchaser have entered
into that certain Agreement for Purchase and Sale of Real Estate dated
__________, 1997 (the "Contract"), for a parcel of real property consisting
of approximately 2.54 acres of real estate, together with all improvements,
including a 25,000 square foot building, located at 5521 Meadowbrook Court,
Rolling Meadows, Illinois (the "Property") being more particularly
described in the Contract; and
WHEREAS, Assignor has heretofore entered into that certain Lease
dated as of January 11, 1994 (the "Lease"), with Samsung America, Inc., a
New York corporation, who assigned its interest to Samsung Construction
Equipment America Corp., an Illinois corporation, as tenant; and
WHEREAS, Assignee desires to purchase from Assignor, and Assignor
desires to sell and assign to Assignee, the Lease and the leasehold estate
created thereby subject to the terms set forth below.
NOW, THEREFORE, for and in consideration of the premises and the
agreements and covenants hereinafter set forth, together with the sum of
Ten and 00/100 Dollars ($10.00) and other good and valuable consideration,
the receipt and sufficiency of which is hereby acknowledged, the parties
hereby agree as follows:
1. Assignor does hereby assign unto Assignee the Lease and the
leasehold estate created thereby, and all of the rights, benefits and
privileges of the landlord thereunder, but subject to all terms,
conditions, reservations and limitations set forth in the Lease.
2. Assignee does hereby assume and agrees to perform all of the
terms, covenants and conditions of the Lease on the part of the landlord
therein required to be performed, from and after the date hereof. Assignee
hereby indemnifies and holds Assignor harmless from any and all losses,
liabilities, expenses (including reasonable attorney's fees), claims or
causes of action against Assignee under the Lease in connection with any
obligations of landlord which arise after the date hereof. Assignor hereby
indemnifies and holds Assignee harmless from any and all losses,
liabilities, expenses (including reasonable attorney's fees), claims or
causes of action against Assignee under the Lease in connection with any
obligations of landlord which arise on or prior to the date hereof.
3. All of the covenants, terms and conditions set forth herein
shall be binding upon and shall inure to the benefit of the parties hereto
and their respective heirs, executors, legal representative, successors and
assigns.
4. This Assignment may be executed in two or more counterparts,
each of which shall be deemed an original and all of which together shall
be considered one and the same agreement.
<PAGE>
IN WITNESS WHEREOF, the parties have executed this Assignment on the
date first above written.
Assignor:
DLS REAL ESTATE, INC.,
an Illinois corporation
By:
------------------------------
Title:
------------------------------
Assignee:
LINCAM PROPERTIES LTD. SERIES 85,
an Illinois limited partnership
By: LINCAM PROPERTIES, INC.,
its corporate general partner
By:
------------------------------
Title:
------------------------------
<PAGE>
EXHIBIT D
FORM OF TENANT ESTOPPEL LETTER
------------------------------
LEASE DATE: January 11, 1994, amended November 29, 1996
LANDLORD: LincAm Properties Ltd. Series 85
TENANT: Samsung America Inc., doing business in the State of
Illinois under the name Samsung Construction Equipment Company
PREMISES: 25,000 square feet in the building commonly known as 5521
Meadowbrook Court, in Rolling meadows, Illinois.
The undersigned Tenant under the above Lease hereby certifies to
________________ ("Lender") and ____________________("Purchaser").
1. That the Lease calls for monthly base rent installments of
$__________ each, commencing on _____, 19____, and Tenant claims no
offsets, deductions or credits against future payments of rent.
2. That no advance rental or other payment has been made in
connection with the lease.
3. That a security deposit in the amount of $18,333.33 is being
held by Landlord, which amount is not subject to any setoff or reduction or
to any increase for interest or other credit due to Tenant, except as
expressly provided in Section 7 of the Lease.
4. That the Lease is a valid lease and in full force and effect.
Attached hereto is a true and complete copy of the Lease and all amendments
and other agreements relating to the Lease and the rent payable thereunder,
which documents represent the entire agreement between the parties; that
there is no existing default on the part of the Landlord; that there is no
existing default on the part of the Tenant of which Tenant has knowledge;
that to Tenant's knowledge, no event has occurred which, with the passing
of time or giving of notice or both, would constitute an event of default;
and that the Lease has not been amended, modified, supplemented, extended,
renewed or assigned.
5. That the Lease provides for a term commencing March, 1994 and
ending July 31, 2002.
6. That there are no actions, voluntary or involuntary, pending
against the Tenant under the bankruptcy laws of the United States or any
state thereof.
7. Tenant is entitled to no rent concessions.
8. That all obligations and conditions under said Lease to be
performed by Landlord or Tenant on or before the date hereof have been
satisfied, free of defenses and setoffs, including all construction work to
be completed to the Premises.
9. That Tenant has obtained all necessary licenses and permits to
carry on its business at the Premises, and all such licenses and permits
are in full force and effect.
10. That Tenant has received no notice of any claim, litigation or
proceeding, pending or threatened, against or relating to the Tenant that
would adversely affect the Tenant's ability to fulfill its obligations
under the Lease or with respect to the Premises. Tenant has received no
notice of, and has no knowledge of, any violations of any federal, state,
county or municipal statutes, laws, codes, ordinances, rules, regulations,
<PAGE>
orders, decrees or directives relating to the Tenant that would adversely
affect the use or condition of the Premises or Tenant's operating thereon.
Tenant has received no notice from any governmental body or agency or from
any person or entity with respect to any actual or threatened taking of the
Premises or any portion thereof for any public or quasi-public purpose by
the exercise of condemnation or eminent domain.
TENANT:
SAMSUNG AMERICA INC.,
a New York corporation,
Dated:____________________ By: /S/ Keith J. Wenk
Title: General Manager
EXHIBIT 2
- ---------
July 2, 1997
VIA FACSIMILE (312)580-0923
- ---------------------------
Marc S. Joseph, Esq.
D'Ancona & Pflaum
30 North LaSalle Street
Suite 2900
Chicago, Illinois 60602
Re: 5521 Meadowbrook Court, Rolling Meadows, IL
-------------------------------------------
Dear Marc:
This letter shall amend the Agreement for Purchase and Sale of Real
Estate dated June 4, 1997, by and between Lincam Properties Ltd. Series 85
and DLS Real Estate, Inc., as amended by letter agreement dated June 24,
1997, as follows:
1. The second grammatical sentence of Section 7.1 shall be deleted
and replaced with the following: "The date of the Closing (the "Closing
Date") shall be not later than 2:00 p.m. (C.S.T.) on August 4, 1997."
2. Section 9.20 shall be deleted in its entirety and replaced with
the following:
"ESTOPPEL CERTIFICATE. Promptly after the Effective Date,
Seller shall request the Tenant to execute an estoppel certificate
substantially similar to the Estoppel Certificate attached hereto (the
"Purchaser's Estoppel Certificate"). On or before July 18, 1997, Seller
shall deliver to Purchaser either (i) an original estoppel certificate in
the form of Purchaser's Estoppel Certificate signed by Tenant and dated on
or after the Effective Date; (ii) an original estoppel certificate in a
form other than Purchaser's Estoppel Certificate signed by Tenant and dated
on or after the Effective Date; or (iii) written notice from Seller to
Purchaser stating that Tenant has not signed any estoppel certificate dated
on or after the Effective Date. If Seller delivers the estoppel certificate
described in clause (ii) above or if Seller delivers the notice described
in clause (iii) above, Purchaser may, in its sole but reasonable discretion
and as its sole and exclusive remedy, terminate this Agreement by
delivering written notice of such termination to Seller at any time on or
before July 22, 1997, in which event the Earnest Money shall be reimbursed
to Purchaser as Purchaser's sole remedy. If Purchaser fails to give Seller
timely notice of such termination under this Section 9.20, Purchaser's
termination right under this Section 9.20 shall be deemed waived.
3. Section 9.21 shall be deleted in its entirety and replaced with
the following:
"SUBORDINATION AND ATTORNMENT AGREEMENT. After the Effective
Date, Seller shall request the Tenant to execute the Subordination, Non-
Disturbance and Attornment Agreement attached hereto (the "Subordination
Agreement"). If Purchaser does not obtain the Subordination Agreement on
or before July 18, 1997, Purchaser may, in its sole but reasonable
discretion and as its sole and exclusive remedy, terminate this Agreement
by delivering written notice of such termination to Seller at any time on
or before July 22, 1997, in which event the Earnest Money shall be
reimbursed to Purchaser as Purchaser's sole remedy. If Purchaser fails to
give Seller timely notice of such termination under this Section 9.21,
Purchaser's termination right under this Section 9.21 shall be deemed
waived.
4. Pursuant to the terms of Sections 9.20 and 9.21, the forms of
Estoppel Certificate and Subordination, Non-Disturbance and Attornment
Agreement attached hereto are "acceptable" to Purchaser and Purchaser's
lender.
5. In all other respects, the Agreement for Purchase and Sale of
Real Estate shall remain unchanged and in full force and effect.
Kindly execute a copy of this letter acknowledging the forgoing
changes and return a copy to my attention.
Very truly yours,
/s/ KEITH J. WENK
--------------------
Keith J. Wenk
Enclosures
cc: Michael Murphy
Agreed and accepted this 2nd day of July, 1997.
/s/ MARC S. JOSEPH
- -----------------------------------------
Marc S. Joseph, as attorney for Purchaser
EXHIBIT 3
- ---------
July 17, 1997
VIA FACSIMILE (312)580-0923
- ---------------------------
Marc S. Joseph, Esq.
D'Ancona & Pflaum
30 North LaSalle Street
Suite 2900
Chicago, Illinois 60602
Re: 5521 Meadowbrook Court, Rolling Meadows, IL
-------------------------------------------
Dear Marc:
This letter shall amend the Agreement for Purchase and Sale of Real
Estate dated June 4, 1997, by and between Lincam Properties Ltd. Series 85
and DLS Real Estate, Inc., as amended by letter agreement dated June 24,
1997, and July 2, 1997(collectively the "Letter Agreements") as follows:
1. Section 9.20 shall be deleted in its entirety and replaced with
the following:
"ESTOPPEL CERTIFICATE. Promptly after the Effective Date,
Seller shall request the Tenant to execute an estoppel certificate
substantially similar to the Estoppel Certificate attached hereto (the
"Purchaser's Estoppel Certificate"). On or before July 25, 1997, Seller
shall deliver to Purchaser either (I) an original estoppel certificate in
the form of Purchaser's Estoppel Certificate signed by Tenant and dated on
or after the Effective Date; (ii) an original estoppel certificate in a
form other than Purchaser's Estoppel Certificate signed by Tenant and dated
on or after the Effective Date; or (iii) written notice from Seller to
Purchaser stating that Tenant has not signed any estoppel certificate dated
on or after the Effective Date. If Seller delivers the estoppel certificate
described in clause (ii) above or if Seller delivers the notice described
in clause (iii) above, Purchaser may, in its sole but reasonable discretion
and as its sole and exclusive remedy, terminate this Agreement by
delivering written notice of such termination to Seller at any time on or
before July 29, 1997, in which event the Earnest Money shall be reimbursed
to Purchaser as Purchaser's sole remedy. If Purchaser fails to give Seller
timely notice of such termination under this Section 9.20, Purchaser's
termination right under this Section 9.20 shall be deemed waived.
2. Section 9.21 shall be deleted in its entirety and replaced with
the following:
"SUBORDINATION AND ATTORNMENT AGREEMENT. After the Effective
Date, Seller shall request the Tenant to execute the Subordination, Non-
Disturbance and Attornment Agreement attached hereto (the "Subordination
Agreement"). If Purchaser does not obtain the Subordination Agreement on
or before July 25, 1997, Purchaser may, in its sole but reasonable
discretion and as its sole and exclusive remedy, terminate this Agreement
by delivering written notice of such termination to Seller at any time on
or before July 29, 1997, in which event the Earnest Money shall be
reimbursed to Purchaser as Purchaser's sole remedy. If Purchaser fails to
give Seller timely notice of such termination under this Section 9.21,
Purchaser's termination right under this Section 9.21 shall be deemed
waived.
3. In all other respects, the Agreement for Purchase and Sale of
Real Estate, as amended by the Letter Agreements, shall remain unchanged
and in full force and effect.
Kindly execute a copy of this letter acknowledging the forgoing
changes and return a copy to my attention.
Very truly yours,
/s/ KEITH J. WENK
--------------------
Keith J. Wenk
cc: Michael Murphy
Garry S. Weiss
Agreed and accepted this 17th day of July, 1997
/s/ MARC S. JOSEPH
- -----------------------------------------
Marc S. Joseph, as attorney for Purchaser
EXHIBIT 4
- ---------
July 25, 1997
VIA FACSIMILE (312)580-0923
- ---------------------------
Marc S. Joseph, Esq.
D'Ancona & Pflaum
30 North LaSalle Street
Suite 2900
Chicago, Illinois 60602
Re: 5521 Meadowbrook Court, Rolling Meadows, IL
-------------------------------------------
Dear Marc:
This letter shall amend the Agreement for Purchase and Sale of Real
Estate dated June 4, 1997, by and between Lincam Properties Ltd. Series 85
and DLS Real Estate, Inc., as amended by letter agreements dated June 24,
1997, July 2, 1997, and July 17, 1997 (collectively the "Letter
Agreements") as follows:
1. Section 9.20 shall be deleted in its entirety and replaced with
the following:
"ESTOPPEL CERTIFICATE. Promptly after the Effective Date,
Seller shall request the Tenant to execute an estoppel certificate
substantially similar to the Estoppel Certificate attached hereto (the
"Purchaser's Estoppel Certificate"). On or before July 30, 1997, Seller
shall deliver to Purchaser either (I) an original estoppel certificate in
the form of Purchaser's Estoppel Certificate signed by Tenant and dated on
or after the Effective Date; (ii) an original estoppel certificate in a
form other than Purchaser's Estoppel Certificate signed by Tenant and dated
on or after the Effective Date; or (iii) written notice from Seller to
Purchaser stating that Tenant has not signed any estoppel certificate dated
on or after the Effective Date. If Seller delivers the estoppel certificate
described in clause (ii) above or if Seller delivers the notice described
in clause (iii) above, Purchaser may, in its sole but reasonable discretion
and as its sole and exclusive remedy, terminate this Agreement by
delivering written notice of such termination to Seller at any time on or
before August 1, 1997, in which event the Earnest Money shall be reimbursed
to Purchaser as Purchaser's sole remedy. If Purchaser fails to give Seller
timely notice of such termination under this Section 9.20, Purchaser's
termination right under this Section 9.20 shall be deemed waived.
2. In all other respects, the Agreement for Purchase and Sale of
Real Estate, as amended by the Letter Agreements, shall remain unchanged
and in full force and effect.
Kindly execute a copy of this letter acknowledging the forgoing
changes and return a copy to my attention.
Very truly yours,
/s/ KEITH J. WENK
--------------------
Keith J. Wenk
cc: Michael Murphy
Garry S. Weiss
Agreed and accepted this 28th day of July, 1997
/s/ MARC S. JOSEPH
- -----------------------------------------
Marc S. Joseph, as attorney for Purchaser
