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 15, 1996
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BioCoral, Inc.
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(Exact name of registrant as specified in its charter)
Delaware 0-23512 33-0601504
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(State or other jurisdiction (Commission IRS Employer
of incorporation) File Number) Identification No.)
c/o Stein Riso Haspel & Jacobs LLP, 805 Third Avenue, New York, NY 10022
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(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code (212) 752-7118
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(Former name or former address, if changed since last report.)
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Item 1. Changes in Control of Registrant Not applicable.
Item 2. Acquisition or Disposition of Assets On October 15, 1996, Cabestan,
Inc., a Pennsylvania corporation ("Cabestan") wholly owned by Registrant,
entered into an agreement with Brooklyn Roads, Ltd., an Ontario corporation
("Buyer") based in Toronto, Ontario, Canada, pursuant to which Buyer agreed to
acquire the fee interest in all the real property owned by Cabestan in
Bensenville, Illinois (the "Property"), for an aggregate consideration of
$6,800,000. Prior to entering into the Agreement, the Registrant had obtained an
informal valuation of the Property at $6,800,000 from a major property manager
who is independent of the Registrant. The consideration is payable in part by
the assumption of an existing first mortgage loan on the Property in the present
principal balance of approximately $4,900,000, and the balance in cash at
closing, anticipated to occur in late December 1996. Closing under the contract
is subject to a variety of conditions and contingencies including environmental
and engineering inspections and other due diligence reviews. There was no prior
relationship between Registrant and Buyer prior to their dealings on the
Property.
Item 3. Bankruptcy or Receivership Not applicable.
Item 4. Changes in Registrant's Certifying Accountants Not applicable.
Item 5. Other Events Not applicable.
Item 6. Resignations of Registrant's Directors Not applicable.
Item 7. Financial Statements and Exhibits Not applicable.
1. Agreement, dated October15, 1996, by and between Casbestan, Inc. and
Brooklyn Roads, Ltd.
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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.
BIOCORAL, INC.
Date: November 6, 1996 /s/ Riccardo Mortara
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Riccardo Mortara, Chairman
PURCHASE AGREEMENT
This Agreement is made and entered into this 9th day of October, 1996 by and
between BROOKLYN ROADS LIMITED ("Purchaser") and CABESTAN, INC., a Pennsylvania
corporation ("Seller").
RECITALS
a. The Seller currently holds title to two parcels of real estate and
appurtenant rights located in Bensenville, Illinois, which parcels are
legally described on Exhibit "A" attached hereto and made a part
hereof by this reference (the parcels are hereinafter referred to
collectively as the "Property"). The Property is improved with two
industrial/office buildings commonly known as 890 Supreme Drive,
Bensenville, Illinois and 800-820 Thorndale Avenue, Bensenville,
Illinois.
b. Purchaser desires to purchase from Seller and Seller desires to sell
to Purchaser all of the items of property hereinafter described in
Paragraph 1 below, in accordance with the terms and conditions
hereinafter set forth.
NOW, THEREFORE, in consideration of the mutual covenants and conditions
hereinafter set forth, and the above recitals which are by this, reference
incorporated herein, the sufficiency of which are hereby acknowledged by the
parties hereto, the parties hereto agree as follows:
1. Agreement to Purchase:
Seller agrees to sell, convey and assign to Purchaser, or its nominee or
assignee, all of the following:
a. The Property and all rights, appurtenances, privileges and easements
thereto owned by Seller;
b. The buildings located upon the Property and all improvements and
structures of any kind whatsoever now or hereafter located on the
Property (the buildings and other structures, if any, are hereinafter
collectively referred to as the "Building");
c. All fixtures, equipment, apparatus, machinery, appliances,
furnishings, and other personal and tangible property, if any, owned
by Seller located at or upon the Building or Property or both and used
or usable in connection with the operation and ownership of the
Building and the Property, exclusive of personal property or trade
fixtures owned by tenants (hereinafter referred to as the "Personal
Property"); and
d. All intangible property, if any, owned by Seller used in connection
with the Building and the Personal Property, including, but not
limited to all rights to obtain utility services in connection with
the Building and the Property; assignable licenses and other
governmental permits and permissions relating to the Property, the
Building, and the operation thereof to the extent assignable by law,
and all assignable contracts and
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contract rights, including guarantees and warranties (all of the
foregoing are hereinafter collectively referred to as the "Intangible
Property").
The Property, Building, Personal Property and Intangible Property are herein
sometimes collectively referred to as the "Project".
2. Purchase Price.
a. The purchase price (the "Purchase Price") for the Project shall be SIX
MILLION, EIGHT HUNDRED THOUSAND AND 00/100 DOLLARS ($6,800,000.00)
payable, in lawful United States of America dollars, as follows:
i. Within two (2) business days (which for the purposes of this
Agreement shall exclude Saturdays, Sundays and statutory holidays
within the State of Illinois or the Province of Ontario) after
the date of execution of this Agreement by Seller (the date of
execution by Seller is hereinafter referred to as the "Acceptance
Date"), Purchaser shall deliver to the Seller's solicitor, as
hereinafter defined, as earnest money, the sum of FIFTY THOUSAND
AND 00/100 DOLLARS ($50,000.00) (the "Initial Earnest Money
Deposit").
Within thirty (30) days from receipt by Purchaser of the last of
all the documents listed in paragraph 4, Purchaser shall deposit
as additional earnest money, the sum of ONE HUNDRED THOUSAND AND
00/100 DOLLARS ($100,000.00) (the "Additional Earnest Money"),
unless Purchaser has exercised its right to terminate this
Agreement, in accordance with its terms. The Initial Earnest
Money and the Additional Earnest Money are hereinafter referred
to as the "Earnest Money". The Earnest Money or any part thereof
shall be held by the Seller's Solicitor(s), in trust, in an
interest bearing account. All interest earned on the Earnest
Money shall accrue for the benefit of the Purchaser, unless the
Earnest Money is retained by Seller as liquidated damages
pursuant to paragraph 2(b) hereof and in such event, the interest
shall accrue for the benefit of Seller.
At Closing, the Earnest Money, together with all interest
thereon, shall be applied toward the Purchase Price.
ii The balance of the Purchase Price, plus or minus prorations,
shall be paid by Purchaser at Closing in immediately available
funds payable to Seller.
b. If the transaction herein described is not consummated due to a
default of Purchaser hereunder, the Earnest Money together with all
interest thereon shall be paid and forfeited to Seller as liquidated
damages in lieu of all other remedies available to Seller, and the
parties hereto shall have no further obligations hereunder.
3. Time of Closing
Subject to the conditions precedent contained in this Agreement, the
consummation of the transaction herein contemplated (hereinafter referred to as
the "Closing") shall take place thirty (30) days following the end of the
Inspection Period. The Closing will take place at the offices
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of Chicago Title Insurance Company (the "Title Company"), 171 N. Clark Street,
Chicago, Illinois.
4. Documents to be Delivered by Seller
Except as otherwise set forth in this paragraph, within ten (10) days after the
Acceptance Date, Seller shall deliver to Purchaser the following documents:
a. Copies of all certificates of occupancy and other necessary
governmental licenses or approvals pertaining to the Project, if any,
which are in the possession of Seller;
b. A complete copy of "as-built" plans and specifications for the
Building and any modifications or amendments thereto, if any, in the
possession of Seller;
c. Copies of all service and maintenance contracts and other written
agreements of any kind pertaining to the Project (including all
amendments and modifications thereto) which Seller or its agents and
affiliates have entered into in connection with the construction,
development, maintenance, ownership and operation of the Project (such
contracts and agreements being hereinafter collectively referred to as
the "Project Contracts"). Purchaser shall advise Seller not less than
twenty (20) days prior to the Closing which Project Contracts, if any,
it shall require to be assigned to it at the Closing. Any contracts
which Purchaser has not required Seller to assign to it at the
Closings shall be cancelled by Seller without liability to Purchaser;
d. Copies of all leases relating to the Project together with a current
rent roll;
e. A schedule listing all Personal Property;
f. Within twenty (20) days after the Acceptance Date, Seller shall
deliver to Purchaser a commitment (hereinafter referred to as the
"Title Commitment") to issue an ALTA Form B Owner's Title Insurance
Policy (the "Title Policy") issued by Chicago Title Insurance Company
(the "Title Company") in the amount of the Purchase Price, showing
title to the Property and Building and, in addition, all access,
ingress and egress and utility casements and rights-of-way used in
connection with the Project naming Purchaser as the proposed insured,
with title being subject only to real estate taxes not yet due or
payable, covenants, conditions and restrictions of record, public
easements and rights of way, leases, acts of Purchaser and parties
acting through Purchaser, the Mortgage, as hereinafter defined, and
such other exceptions as are approved in writing by Purchaser
(hereinafter referred to as the "Permitted Exceptions") and any other
title exceptions pertaining to liens or encumbrances of a definite,
ascertainable amount which may and shall be removed by the payment of
money by Seller at or prior to Closing as confirmed by Purchaser with
the Title Company (such other title exceptions being hereinafter
referred to as the "Removable Exceptions"), together with copies of
all covenants, conditions, easements and restrictions affecting the
Project. The Title Policy or "marked-up" title commitment shall be
delivered at Closing and shall provide full extended coverage
insurance which shall result in the deletion of the general exceptions
and shall contain the following affirmative endorsements:
i. The Title Company's standard form 3.1 ALTA zoning endorsement
with parking;
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ii. If there is more than one Parcel comprising either parcel of the
Project, a contiguity endorsement insuring that all parcels
comprising the Property are contiguous;
iii. Restriction endorsement if any recorded covenant or restriction
affects the Property; and
iv. Access endorsement;
g. Within twenty (20) days after the Acceptance Date, Seller shall
deliver to Purchaser three (3) copies of surveys of the Property (the
"Surveys") dated or recertified as of or subsequent to the Acceptance
Date, prepared by a land surveyor licensed by the State of Illinois
and certified to have been prepared in accordance with 1992 ALTA land
title standards and certified to Purchaser, the Title Company and the
Mortgagee, as hereinafter defined. The Surveys shall show the location
of the Building to be within lot and setback lines and that the
Building does not encroach upon easements in such a manner as to
adversely affect or impair the use or marketability of the Property
and that there are no encroachments of buildings or other improvements
from adjoining properties which adversely affect or impair the use or
marketability of the Property. The Surveyor shall certify that the
Property does not contain wetlands and that the Property is not in an
area identified by any agency or department of the federal government
as having special flood or mudslide hazards which would require flood
insurance under the Flood Insurance Act of 1968.
If the Title Commitment or the Title Policy disclose exceptions to
title other than Permitted Exceptions, or Removable Exceptions in the
case of the Title Commitment (such exceptions are hereinafter referred
to as "Unpermitted Exceptions") or the Surveys disclose defects or
other matters which result in Unpermitted Exceptions, then Purchaser
may elect, upon written notice to Seller, (i) to terminate this
Agreement; or (ii) to take title as it then is and deduct from the
Purchase Price an amount necessary to discharge such Unpermitted
Exceptions or to obtain affirmative title insurance against loss with
respect to any unpermitted liens, encumbrances or restrictions. If
Purchaser fails to make an election, such failure shall constitute an
election to terminate this Agreement;
h. All documents in Seller's possession relating to any special use,
nonconforming use, or zoning variance granted with respect to the
Project;
i. All environmental reports, audits or studies in Seller's possession
relating to the Project;
j. A copy of all guaranties, warranties and other documents or
instruments evidencing or relating to the Building, Personal Property
and the Intangible Personal Property, if any;
k Copies of all contracts for construction, repair or capital
replacement performed or to he performed at the Project or covering
such work performed during the two (2) years immediately preceding the
date hereof;
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l. All other studies, reports, maps and documents related to the Project
that are in Seller's possession including without limitation
engineering reports, environmental impact reports, historical site
status reports, roof reports, traffic circulation, flood control and
drainage plans and all correspondence with governmental agencies
concerning the same;
m. Copies of real estate tax bills for the three (3) most recent years
and all notices pertaining to real estate taxes and assessments
applicable to the Project, together with documents relating to all
real estate protests or tests filed during such period in connection
with the Project;
n. Completed Disclosure Form executed by Seller pursuant to the Illinois
Responsible Property Transfer Act; and
If Seller fails to deliver to Purchaser any of the documents specified in this
Paragraph within the time herein provided, then the Inspection Period granted
pursuant to paragraph 8 hereof shall be extended by the number of days by which
the date on which such documents are delivered exceeds the time period set forth
in this paragraph 4.
5. Documents To Be Delivered By Seller At Closing
At or prior to the Closing, Seller shall deliver or cause to be delivered to
Purchaser the following, all in form and substance reasonably satisfactory to
Purchaser:
a. Special Warranty Deed to Purchaser or Purchaser's nominee in
recordable form, conveying good and marketable title in fee simple to
the Property and Building, subject only to the Permitted Exceptions;
b. The Title Policy or a "marked-up" Title Commitment (including extended
coverage and title endorsements) and indicating waiver or deletion of
the Removable Exceptions;
c. A Bill of Sale executed by Seller, assigning, conveying and warranting
to the Purchaser title to the Personal Property, if any, and the
Intangible Property, if any, free and clear of all encumbrances;
d. The original executed Leases;
e. Letter from the tenants under the Leases (hereinafter referred to as
"Tenant Estoppel Certificates") addressed to Purchaser or its nominee
and Mortgagee, as hereinafter defined, in the form attached hereto as
Exhibit "B". If Seller is unable to obtain Tenant Estoppel
Certificates from all of the tenants, Seller shall provide Purchaser
with a Seller's Estoppel Certificate for the tenants who did not
provide Tenant Estoppel Certificates. The Seller's Estoppel
Certificate shall contain the matters set forth in Exhibit "B"
attached hereto;
f. Notices executed by Seller to all tenants, licensees or
concessionaires, under the Leases and Project Contracts directing such
parties to pay all rental and other payments to Purchaser or its
agent;
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g. All architectural drawings, plans, specifications, surveys, building
permits, occupancy permits or other similar items in Seller's
possession and control which Seller has created, used or relied upon
for the ownership and maintenance of the Project;
h. A non-foreign certificate in accordance with the provisions of
paragraph 22 hereof;
i. Insurance certificates in Seller's possession required by the tenants
under the Lease;
j. A rent roll dated as of the Closing certified by Seller to Purchaser
to be true, correct and complete;
k. All keys in possession of the Seller used in connection with the
Project and the combinations to all locks included on the Project;
l. An affidavit of title;
m. A certificate from Seller stating that the representations and
warranties set forth in paragraph 9 are true and accurate in an
material respects as of the date of the Closing; and
n. Such other documents as Purchaser or the Title Company may reasonably
request to enable Purchaser to consummate the Transaction contemplated
by this Agreement.
6. Documents to be Delivered by Seller and Purchaser.
At or prior to the Closing, Purchaser and Seller shall jointly deliver the
following:
a. Executed state, county and municipal transfer declarations;
b. ALTA Statement;
c. A Closing Statement containing calculations of prorations;
d. An Assignment and Assumption Agreement with respect to the Leases and
the Project Contracts (to the extent that Project Contracts are to be
assigned to Purchaser at Closing) pursuant to which Seller shall agree
to indemnify, protect, defend and hold Purchaser harmless from and
against all claims (including attorneys' fees) arising in connection
with the Leases and the assigned Project Contracts for the period
prior to Closing and Purchaser shall agree to indemnify, protect,
defend and hold Seller harmless from and against all claims (including
attorneys' fees) arising in connection with the Leases and assigned
Project Contracts for the period from and after the Closing; and
e. An Assignment of the Mortgage, if required pursuant to the Mortgage.
7. Documents To Be Delivered By Purchaser
At Closing, Purchaser shall deliver to Seller the Purchase Price, plus or minus
prorations, by wire transfer as directed by Seller.
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8. Inspection Period
a. Notwithstanding anything contained in this Agreement to the contrary,
if, for any reason whatsoever, in Purchaser's sole discretion,
Purchaser is not satisfied with the condition of the Project, or any
part thereof, or with the documents to be delivered to Purchaser in
accordance with Paragraph 4 hereof, or with the financial or physical
feasibility of ownership of the Project and any proposed plans for the
rehabilitation and renovation of same, then Purchaser shall have the
right to terminate this Agreement by written notice to Seller within
thirty (30) days from the receipt by Purchaser of the last of all
documents listed in paragraph 4 (the "Condition Date) The period of
time from the Acceptance Date through and including the Condition Date
is herein referred to as the "Inspection Period".
b. Purchaser, its agents, representatives and employees may, during the
Inspection Period, make soil, environmental and engineering tests,
inspect and audit the Project for such purposes as Purchaser may
require and Seller shall provide Purchaser and its agents and
representatives full and complete access to the Project. Purchaser
hereby agrees to indemnify, defend and hold Seller harmless from and
against all liability and cost caused by the negligence of Purchaser
and its agents in performing said inspection.
9. Warranties and Representation of Seller.
a. In order to induce Purchaser to enter into this Agreement Seller
warrants and represents to Purchaser as follows:
i. that between the Acceptance Date and the Closing, Seller shall:
(i) not, without first obtaining the written consent of the
Purchaser, enter into, amend or cancel any contracts, agreements
or leases pertaining to the Project which would survive the date
of Closing and be binding upon Purchaser; (ii) not convey any
Intangible Property or remove from the Project any of the
Personal Property except in the ordinary course of business;
(iii) remedy all violations of laws, ordinances, orders or
requirements relating to the Project of which Seller has actual
notice. (iv) not cancel or permit cancellation of any hazard or
liability insurance carried with respect to the Project or its
operation; and (v) not apply any security deposit to any
obligation of any tenant under any of the Leases;
ii. To the best of Seller's knowledge, no fact, condition or
proceeding exists which would result in the termination or
impairment of the furnishing of or an increase in rates for
services to the Project of water, sewer, gas, electric,
telephone, drainage and other such utility services. To the best
of Seller's knowledge, the facilities servicing the Project are
in compliance with all governmental rules and regulations;
iii. All building permits, certificates of occupancy, business
licenses and, without limitation, all other notices, licenses,
permits, certificates and authority, required in connection with
the construction, use or occupancy of the Project have been
obtained and are in effect and in good standing and the leasing,
operation and
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use of the. Project is in compliance, in all material respects,
with such notices, licenses, permits, certificates and authority;
iv. There are no presently pending, and Seller has received no notice
of, any special assessments of any nature with respect to the
Project or any part thereof;
v. Seller is not a party to any contract, agreement or commitment to
sell, convey, assign, transfer, provide rights of refusal or
other similar rights or otherwise dispose of any portion or
portions of the Project;
vi. This Agreement has been duly authorized and executed on behalf of
Seller and constitutes a valid and binding agreement, enforceable
in accordance with its terms, except as limited in bankruptcy or
by court of equity;
vii. There is no litigation pending against Seller or the Project
which materially and adversely affects the Project or Seller's
ability to perform pursuant to this Agreement;
viii. Seller has not received any notice and Seller has no knowledge
that the Building is being operated by Seller other than in
accordance with all applicable federal, state and local laws,
ordinances, rules, regulations and orders (including without
limitation, those relating to the environment, health and safety
matters and handicapped persons);
ix. Seller has not received any notice and Seller has no knowledge
that, (a) any building permits, certificates of occupancy,
business licenses and all other certificates and authorization
required in connection with the construction, use and occupancy
of the Project have not been obtained and are not in full force
and effect; and (b) the leasing, operation and use of the Project
is not in compliance, in all material respects with such notices,
licenses, permits and certificates;
x. Seller has not received and knows of no unsatisfied requests for
repairs, restorations or improvements with respect to the Project
from any person, entity or authority, including, but not limited
to, any tenant, lender, insurance carrier or government
authority. Seller has no knowledge or notice of, any claims of
any governmental agency to the effect that the construction,
operation or use of any of the Project is in violation of any
applicable law, ordinance, rule, regulation or order;
xi. To the best of Seller's knowledge, during the period in which
Seller has owned the Project, the Project has never been used as
a landfall or a waste dump, and there was not any installation
in, or production, disposal or storage on, the Project of any
hazardous waste or other toxic substances, including, without
limitation, asbestos, by Seller or, to the best of Seller's
knowledge, by any tenant or any previous tenant or owner (other
than storage of small amounts of ordinary office supplies, copier
and printer toner, etc.) and there is no proceeding or inquiry by
any governmental authority or agency with respect thereto. During
the
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period in which Seller has owned the Project, the Project has
not contained any hazardous substance or hazardous waste, as said
terms are used in the Comprehensive Environmental Response,
Compensation and Liability Act, as amended, 42 U.S.C. subsections
9601 et seq., the Resource Conservation and Recovery Act, as
amended, 42 U.S.C. subsections 6901 et seq. or the Illinois
Environmental Protection Act., as amended, I11.Rev.Stat. Ch.
111-1/2, subsections 1001 et seq.; and
xii. none of the foregoing representations, warranties and statements
of fact contemplated by this Agreement contains any untrue
statement of a material fact or omit to state any material fact
necessary to make any such statement or representation not
misleading to a prospective purchasers seeking full information
as to the Property; the Seller has no knowledge of any facts
which should reasonably be known to the Seller relating to the
Property which are not disclosed in this Agreement or in any
document deliverable hereunder and which might reasonably be
expected to materially diminish he Purchaser's appreciation of
the value of the Property or, if known by the Purchaser, might
reasonably be expected to deter the Purchaser from completing the
transactions contemplated by this Agreement on the terms and
conditions contained herein.
b. All representations and warranties contained in this Paragraph 9 or
elsewhere in this Agreement shall be deemed remade as of the Closing
and shall survive the Closing for a period of nine (9) months. No suit
shall be brought in connection with any representation or warranty
unless commenced within nine (9) months of the date of the Closing.
Each and every warranty and representation of Seller shall be deemed
to have been relied upon by Purchaser, notwithstanding any
investigation, Purchaser may have made with respect thereto. If there
shall be any material, adverse change between the date of this
Agreement and the date of Closing such that the foregoing
representation, and warranties shall not be true as of the time of
Closing, then Purchaser may, at its election, terminate this Agreement
and be relieved of any further obligations hereunder.
10. Adjustments.
a. An adjustment to the Purchase Price shall be made between Seller and
Purchaser on a per diem basis as of midnight of the date preceding the
date of Closing for real estate taxes, personal property taxes and
other state or city taxes, charges and assessments levied against the
Project, not yet due and payable or due but not yet paid, on the basis
of the fiscal year for which the same are levied or assessed. If the
amount of any such taxes, charges or assessments shall not be fixed
before the date of Closing, the adjustment thereof at Closing shall be
based upon the Tax Assessor's most recent assessed valuation and the
latest known tax rate and equalization factors. In such event, Seller
and Purchaser agree to reprorate such taxes, charges or assessments as
the amount of such items become available, such agreement shall
survive the Closing. To the extent Purchaser receives after the
Closing, any payment from any of the tenants for the tenants'
proportionate share of real estate taxes for which Purchaser received
a closing credit, Purchaser shall promptly remit such payments to
Seller.
b. An adjustment to the Purchase Price shall be made between Seller and
Purchaser on a per diem basis as of midnight of the date preceding the
date of Closing for rents under
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the Leases, and all security deposits held by Seller pursuant to the
Leases, and, without limitation, other payments payable by tenants,
licenses, concessionaires and other persons using or occupying the
Project or any part thereof, for or in connection with such use or
occupancy. However, Purchaser shall not be obligated to make any
payment or give any credit to Seller on account of or by reason of any
rental or other payments which are unpaid as of the Closing (which
shall remain the property of Seller) but instead Purchaser shall be
required merely to turn over to Seller its share of the same if, as
and when received by the Purchaser. All payments received by the
Purchaser from a tenant, licenses , concessionaire or other person
shall be applied against the most recently accrued obligation or
obligations of the payor. In addition, in the event that as of the
Closing there shall exist any rental concession, free-rent period or
rent reduction under or with respect to any Lease which extends beyond
the Closing, then the amount thereof shall be credited to Purchaser as
of the Closing.
c. At Closing, Purchaser shall receive a credit in the amount of the
outstanding principal amount of the Mortgage, as hereinafter defined,
together with all accrued interest thereon less the amount of any real
estate tax deposits made by Seller and held by the Mortgagee as of the
date of Closing.
d. The following items set forth below shall be apportioned between
Seller and Purchaser as of the Closing:
i. Fuel, water, sewer, telephone, and all other utility charges.
ii. Fees paid or payable under any Project Contract licenses, permits
or other Intangible Property assignable to Purchaser and charges
and other amounts payable under any contracts assigned to
Purchaser pursuant to the terms of this Agreement.
iii. All other items customarily prorated or adjusted on the
conveyance of similar projects.
e. In the event any prorations, apportionments or computations made under
this Paragraph 9 shall prove to be incorrect for any season, then
either party shall be entitled to an adjustment to correct the same,
provided that it makes written demand on the one from whom it is
entitled to such adjustment within twelve (12) months after the
Closing.
11. Closing Costs
All title charges and expenses of or relating to the Title Policy herein
provided for and survey fees, documentary or transfer taxes payable in
connection with the delivery of any instrument or document provided in or
contemplated by this Agreement (except for municipal transfer taxes imposed upon
the transferee) or any agreements described or referred to herein, if any, any
sales or transaction tax payable by reason of the transaction herein described,
any fee charged or imposed by the Mortgagee in connection with the conveyance of
the Project or the assignment of the Mortgage, and one-half (1/2) of any escrow
and Closing charges imposed by the Title Company, the cost
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of extended coverage with the Title Policy shall be paid by Seller. One-half
(1/2) of any escrow and Style Closing charges imposed by the Title Company the
cost of all title endorsements, municipal transfer taxes (if any) imposed upon
the transferee and the cost of recording the deed to cost of recording the deed
to Purchaser shall be paid by Purchaser shall by paid by Purchaser.
12. Operation Until Closing
From the date of this Agreement, until Closing, the Seller shall operate the
Property in the ordinary course in accordance with sound business and management
practices as would a prudent owner of comparable properties and will carryout
all routine day-to-day repairs and maintenance thereof.
13. Damage or Destruction to Project
In the event that between the Acceptance Date and the date of Closing, all or
any portion of the Project is damaged or destroyed by fire or other casualty and
the cost of repairing such damage exceeds $250,000.00, Purchaser may elect to:
a. Terminate this Agreement without cost, obligation or liability on
Purchaser's part, in which event all rights and obligations of the
parties hereunder shall cease and the Earnest Money and all interest
thereon shall be returned to Purchaser; or
b. Consummate the transaction contemplated hereby, in which event the
Seller shall provide Purchaser with a closing credit in the amount of
its insurance deductible and shall insurance proceeds payable as a
result of such damage or destruction shall provide Purchaser with a
closing insurance proceeds payable as a result of Purchaser at Closing
and used to rebuild the Project.
Purchaser shall notify Seller within thirty (30) days after receipt of notice
from Seller of such damage or destruction of its election. If Purchaser fails to
notify Seller of its election within said 30-day period, such failure shall
constitute an election to terminate this Agreement as aforesaid. The Closing
shall be adjusted, if necessary, to allow for Purchaser's election not to
terminate.
In the event that the cost of restoration or rebuilding is less than
$250,000.00, Seller shall effect such restoration and if such restoration or
rebuilding is not completed as of the date of Closing, the date of Closing shall
be extended until such time as such restoration or rebuilding is completed.
14. Condemnation.
In the event between the Acceptance Date and the date of Closing any
condemnation or eminent domain proceedings are initiated which might result in
the taking of any part of the Building or the Property, Purchaser, at its sole
option, may elect to terminate this Agreement without costs, obligation or
liability on the part of Purchaser, in which event all rights and obligations of
the parties hereunder shall cease and the Earnest Money and all interest thereon
shall be returned to Purchaser. In the event Purchaser elects not to terminate
this Agreement, Seller shall assign to Purchaser at Closing all of Seller's
title and interest in an to any award pertaining to the Project made in
connection with such condemnation or eminant domain proceedings. Purchaser shall
notify Seller within thirty (30) days after its receipt of notice of
<PAGE>
-12-
such condemnation or eminent domain proceedings whether it elects to exercise
its right to terminate. If Purchaser fails to notify Seller of its election
within said 30-day period, such failure shall constitute an election to
terminate this Agreement aforesaid. The Closing shall be adjusted, if necessary,
to allow for Purchaser's election not to terminate.
15. Brokers
The parties mutually warrant and represent to the other that no broker has been
authorized to act on its behalf in respect of the transaction contemplated
hereby. Each of the parties shall indemnify and save the other harmless from any
claim by any broker or other person.
16. Mortgage
Seller and Purchaser acknowledge and agree that the consummation of the
transaction contemplated by this Agreement is expressly subject to and
conditioned upon the agreement and consent of Principal Mutual Life Insurance
Company (the "Mortgagee") to the assignment of the Mortgage to Purchaser and the
assumption of the Mortgage Note by Purchaser. Seller shall be solely responsible
for all costs charged, imposed or assessed by Mortgagee in connection with the
assignment of the Mortgage and the consent of the Mortgagee to the conveyance to
Purchaser.
17. Entire Agreement
It is understood and agreed that all understandings and agreements heretofore
had between the parties hereto are merged in this Agreement, the exhibits
annexed hereto and the instruments and documents referred to herein, which alone
fully and completely express their agreements, and that neither party is relying
upon any statement or representation, not embodied in this Agreement, made by
the other. Each party expressly acknowledges that, except as expressly provided
in this Agreement, the other party and the agents and representatives of the
other party have not made, and the other party is not liable for or bound in any
manner by, any express or implied warranties, guaranties, promises, statements,
inducements, representations or information pertaining to the transactions
contemplated hereby.
18. Assignment
The Purchaser, upon notice to the Seller but without the necessity of obtaining
the Seller's consent, shall have the right to assign its rights hereunder,
provided that in the case of any such assignment the Purchaser shall not be
released from its obligations hereunder unless the Seller consents to the
Assignment and the assumption of such obligations by the assignee, which consent
may not be unreasonably withheld. The Seller may not assign its rights under
this Agreement without the prior written consent of the Purchaser, which consent
may not be unreasonably withheld.
19. Modifications
No modification, amendment, discharge or change of this Agreement, except as
otherwise provided herein, shall be valid unless the same is in writing and
signed by the party against which the enforcement of such modification,
amendment, discharge or change is sought.
<PAGE>
-13-
20. Notices
All notices, demands, requests and other communications under this Agreement
shall be in writing and shall be deemed properly served when received (a) if
delivered by hand or expedited messenger service with proof of receipt to the
party to whose attention it is directed or (b) if sent, postage prepaid, by
registered or certified mail, return receipt requested, postage prepaid or (c)
if sent by private carrier guaranteeing next day delivery or (d) if sent via
telecopier or other electronic communication which results in a written or
printed notice, addressed as follows:
If intended for Purchaser: Frank Camenzuli
Brooklyn Roads Limited
Suite 301
347 Bay Street
Toronto, Ontario
Canada
M5H 2R7
Telecopier: (416) 864-9929
with a copy to: John Wright
Owens, Wright
Suite 401
20 Holly Street
Toronto, Ontario
Canada
M4S 3B1
Telecopier: (416) 486-3309
If intended for Seller: Cabestan, Inc.
c/o Trammel Crow Company
2 Pierce Place, Suite 700
Itasca, Illinois 60143
Telecopier: (630) 285-2955
with a copy to: Neil Jacobs
Stein, Riso, Haspel & Jacobs, LLP
80 Third Avenue
21st Floor
New York, New York 10022
Telecopier: (212) 752-8468
or such other address or to such other party which any party entitled to receive
notice hereunder designates to the other in writing. Notice delivered by hand,
by private carrier or by telecopier shall be effective when delivered. Notice
sent by mail shall be effective five (5) days after mailing.
<PAGE>
-14-
21. Illinois Tax Withholding.
Seller represents and warrants that the sale of the Project to Purchaser shall
not subject Purchaser to liability under 35 ILCS 5/902. Seller shall indemnify
and hold Purchaser harmless from any claims for transferee liability asserted by
the State of Illinois against Purchaser pursuant to 35 ILCS 5/902 in connection
with the sale of the Project by Seller to Purchaser. The foregoing indemnity
agreement of Seller shall survive the Closing of the sale of the Project to
Purchaser.
22. Non-Foreign Certificate
Seller shall provide Purchaser on or before the Closing, with a non-foreign
certificate sufficient in form and substance to relieve Purchaser of any and all
withholding obligations under federal law, which certificate shall be reasonably
satisfactory to Purchaser and the Title Company.
23. Binding Effect
This Agreement shall be binding upon and shall inure to the benefit of the
parties hereto and their respective successors and assigns.
24. Partial Invalidity
Seller and Purchaser intend and believe that each provision in this Agreement
comports with all applicable local, state and federal laws and judicial
decisions.
However, if any provisions or provisions in this Agreement which is or are not
materially related to the liability of the parties hereto or to the conditions
to Purchaser's obligations to consummate the transaction contemplated herein is
found by a court of law to be in violation of any applicable local, state or
federal ordinance, statute, law administrative or judicial decision, or public
policy, and if such court should declare such portion, provision or provisions
of this Agreement to be illegal, invalid, unlawful, void or unenforceable as
written, then it is the intent both of Seller and Purchaser that such portion,
provision or provisions shall be given force to the fullest possible extent that
they are legal, valid and enforceable, that the remainder of this Agreement
shall be construed as if such illegal, invalid, unlawful, void or unenforceable
portion, provision or provisions were not contained therein, and that the
rights, obligations and interest of Purchaser and Seller under the remainder of
this Agreement shall continue in full force and effect. If any provision or
provisions which is or are material as set forth above are found to be illegal,
invalid, unlawful, void or unenforceable as written, this Agreement may, at the
option of either party, be terminated without further obligation to either
party.
25. Acceptance
Purchaser agrees that this Agreement shall be irrevocable by it until 11:59 a.m.
on the 18th day of October, 1996, after which time, if not accepted, this
Agreement shall be null and void.
Exhibits "A" and "B" form part of this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
day and year first above written.
<PAGE>
-15-
Dated at Toronto, Ontario, Canada, this 9th day of October, 1996.
BROOKLYN ROADS LIMITED
[ILLEGIBLE]
------------------------------------
The undersigned accepts the above Agreement.
Dated at Geneva, Switzerland, [ILLEGIBLE], this 15th day of October, 1996.
CABESTAN, INC.
[ILLEGIBLE]
------------------------------------
<PAGE>
EXHIBIT "A"
LEGAL DESCRIPTION OF LANDS
Building Twelve
Address: 800/804/806/808/816/818/820 Thorndale Avenue
Bensenville Industrial Park
Dupage County, Illinois
Site Area: 5.563 acres
Building Area: 73,249 square feet
Legal Description:
Parcel 2: Lot 2 in Thorndale Distribution Park in
Bensenville Unit No. 4, being a resubdivision of Part
of the southwest 1/4 of Section 2 and part of the
northwest 1/4 of Section 11, Township 40 north, range
11, east of the third principal meridian, according
to the plat thereof recorded October 31, 1984 as
document R84-88005, in Du Page County, Illinois.
Parcel 3: A right-of-way and non-exclusive appurtenant
easement for the benefit of Parcel 2, as created by
access agreement recorded January 6, 1994 as document
R94-004671, for Ingress, Egress and Driveway over the
following described property:
The east 25.00 feet of the south 300.00 feet and the
east 20.00 feet of the north 175.00 feet of the south
475.00 feet of Lot 1 in Thorndale Distribution Park
in Bensenville Unit No. 4, being a resubdivision of
part of the southwest 1/4 Section 2 and part of the
northwest 1/4 of Section 11, Township 40 north, range
11, east of the third principal meridian, according
to the plat thereof recorded October 31, 1984 as
document R84-88005, in Du Page County, Illinois
Building Three
Address: 820/860/890 Supreme Drive
Bensenville Industrial Park
Dupage County, Illinois
Site Area: 4.77 acres
Building Area: 85,542 square feet
Legal Description:
Parcel 1: Lot 1 in Thorndale Distribution Park in
Bensenville Unit No. 4, being a subdivision of part
of the southwest 1/4 of Section 2 and part of the
northwest 1/4 of Section 11, all in Township 40
north, Range 11, east of the third principal meridian
according to the plat thereof recorded September 4,
1974 as document R74-45804, in Du Page County,
Illinois.
<PAGE>
EXHIBIT "B"
TENANT ESTOPPEL CERTIFICATES
TO: BROOKLYN ROADS LIMITED
AND TO:
RE: BROOKLYN ROADS LIMITED PURCHASE OF 890 SUPREME DRIVE AND
800-820 THORNDALE AVENUE, BENSENVILLE, ILLINOIS (the
"Property") and a Lease dated BETWEEN _______, as LANDLORD and
_______, as TENANT (the "Lease") as amended by an AGREEMENT dated
_______ for the premises known as Unit _______, at _______ (the
"Premises")
The undersigned, being or on behalf of the Tenant of the Premises, hereby
confirm and acknowledge that:
1. The Tenant is in possession of the Premises and is paying rent and other
payments reserved by the Lease and there is no set-off of such rental;
2. Additional Rents are charged and paid as follows:
Charge Date(s) Paid Paid To
Realty Tax
Maintenance
Insurance
Utilities
(separately metered)
(not separately metered)
Others
3. There has been no oral and written variation, modification or alteration of
the Lease or of any guarantee thereof and the Lease is now in full force
and effect;
4. As of this date, the Lease is in good standing in all respects and the
undersigned has no claim or right to any set off against the Rent due or
accruing due, other than Pre-paid Rents as set forth below;
3. No event has occurred and is continuing which would constitute a default or
breach under the Lease by the Landlord or by the Tenant of any of the
terms, conditions,
<PAGE>
- 2 -
covenants or provisos thereof including but not limited to the Landlord's
obligation to repair and maintain the Premises;
6. There is no subsisting prior assignment of the Lease; there is no
subsisting Sub-lease of the Premises or any portion of same;
7. The area being occupied by the Tenant under the Lease is ____ square feet
and is designated as Unit _______, the Tenant occupies no other part of any
other unit.
There is no dispute as regards the area being occupied by the Tenant or as
regards its entitlement to space;
8. This amount of $_______ is presently being paid for Base Rent monthly; the
amount of $_______ is presently being paid for Additional Rent monthly;
9. Rent/Additional Rent is paid on the first day of each month; the last
payment of Rent/Additional Rent was paid on _______;
10. The amount of $_______ has been paid as Last Month's Rent;
11. The amount of $_______ has been paid as a Security Deposit;
12. The Lease matures on _______. There is an option to renew which has/has not
(delete as applicable) been exercised;
13. The undersigned is aware the subject property, namely _______ is being
purchased by BROOKLYN ROADS LIMITED, which will be relying on this
Acknowledgement in completing the purchase.
DATED at ___, this day of _______, 1996.
TENANT
-------------------------------------
Name:
Title:
