EXHIBIT 99
AGREEMENT TO PURCHASE INDUSTRIAL BUILDING
BETWEEN
ENESCO GROUP, INC., AN ILLINOIS CORPORATION, AS SELLER
AND
CENTERPOINT PROPERTIES TRUST, A MARYLAND REAL ESTATE INVESTMENT TRUST,
AS PURCHASER
DECEMBER 10, 2004
AGREEMENT TO PURCHASE INDUSTRIAL BUILDING
TABLE OF CONTENTS
-----------------
ARTICLE I.........................................................................................................1
1.01 Definitions..........................................................................................1
ARTICLE II........................................................................................................3
2.01 Purchase and Sale....................................................................................3
ARTICLE III.......................................................................................................4
3.01 Purchase Price.......................................................................................4
ARTICLE IV........................................................................................................4
4.01 Survey...............................................................................................4
ARTICLE V.........................................................................................................4
5.01 Title................................................................................................4
5.02 Objections...........................................................................................4
5.03 Seller's Response....................................................................................5
5.04 Permitted Exceptions.................................................................................5
5.05 Title Policy.........................................................................................5
ARTICLE VI........................................................................................................6
6.01 Possession...........................................................................................6
6.02 Prorations...........................................................................................6
6.03 Closing Costs........................................................................................6
ARTICLE VII.......................................................................................................7
7.01 Escrow...............................................................................................7
ARTICLE VIII BROKERAGE............................................................................................7
8.01 Brokerage............................................................................................7
ARTICLE IX........................................................................................................7
9.01 Minor Loss...........................................................................................7
9.02 Major Loss...........................................................................................8
ARTICLE X.........................................................................................................8
10.01 Affirmative Covenants of Seller......................................................................8
ARTICLE XI.......................................................................................................10
11.01 Representations and Warranties of Seller............................................................10
11.02 No Liability for Exception Matters..................................................................12
11.03 Survival of Seller's Representations and Warranties.................................................13
11.04 AS-IS...............................................................................................13
ARTICLE XII......................................................................................................14
12.01 Representations and Warranties of Purchaser.........................................................14
ARTICLE XIII.....................................................................................................14
13.01 Termination Right...................................................................................14
13.02 Truth of Seller's Representations and Warranties and Performance of Seller's Obligations............14
13.03 Performance of Purchaser's Obligations..............................................................15
ARTICLE XIV......................................................................................................15
14.01 Time and Place......................................................................................15
14.02 Seller's Deliveries.................................................................................15
14.03 Purchaser's Deliveries..............................................................................16
14.04 Concurrent Deliveries...............................................................................16
14.05 New York Style Closing..............................................................................16
14.06 Concurrent Transactions.............................................................................16
ARTICLE XV NOTICES...............................................................................................16
15.01 Notices.............................................................................................16
ARTICLE XVI......................................................................................................17
16.01 Entire Agreement, Amendments and Waivers............................................................17
16.02 Further Assurances..................................................................................18
16.03 No Third Party Benefits.............................................................................18
16.04 Interpretation......................................................................................18
16.05 Tax Appeal Proceedings..............................................................................19
16.06 Attorneys' Fees.....................................................................................19
16.07 Assignment..........................................................................................19
16.08 Tax Deferred Exchange...............................................................................19
AGREEMENT TO PURCHASE INDUSTRIAL BUILDING
THIS AGREEMENT is made this 10th day of December, 2004 (the "Effective
Date"), by and between ENESCO GROUP, INC., an Illinois corporation ("Seller"),
and CENTERPOINT PROPERTIES TRUST, a Maryland real estate investment trust
("Purchaser").
RECITALS:
A. Seller is the fee owner of the Real Property (as hereinafter
defined), commonly referred to as ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ and the owner of the Personal Property and Licenses (as such terms are
hereinafter defined and, together with the Real Property, collectively referred
to herein as the "Property").
B. Seller desires to sell, and Purchaser desires to purchase, the
Property upon and subject to the terms and conditions hereinafter set forth.
AGREEMENTS
NOW, THEREFORE, in consideration of the foregoing premises and the
respective representations, warranties, agreements, covenants and conditions
herein contained, and other good and valuable consideration, Seller and
Purchaser agree as follows:
ARTICLE I
DEFINITIONS
1.01 DEFINITIONS. When used herein, the following terms shall have the
respective meanings set forth opposite each such term:
AGREEMENT: This Agreement to Purchase Industrial Building,
including the Exhibits attached hereto which are incorporated herein and made a
part hereof.
BUSINESS DAY: Any day other than a Saturday or Sunday or a day on which
national banking associations are authorized or required to close.
CLOSING DATE: December 10, 2004, or such other date mutually agreed to
by Seller and Purchaser.
CLOSING: The closing of the transaction contemplated hereby as
described in Section 14.01.
DEED: That certain recordable Special Warranty Deed to be delivered by
Seller to Purchaser at the Closing conveying the Real Property to Purchaser
subject to the Permitted Exceptions.
DEPOSIT: The sum of Two Million and No/100 Dollars ($2,000,000.00),
which shall be deposited by Purchaser with Escrowee, as escrowee, within two (2)
Business Days following the
F-1
date of Seller's acceptance hereof, to be held as ▇▇▇▇▇▇▇ money subject to the
terms of this Agreement.
DUE DILIGENCE EXPIRATION DATE: November 18, 2004.
EFFECTIVE DATE: The date the last of Seller and Purchaser executes and
delivers this Agreement as indicated by the date set forth below their
respective signatures.
ENVIRONMENTAL LAWS: All federal, state and local environmental health
and safety statutes, ordinances, codes, rules, regulations, orders and decrees
regulating, relating to or imposing liability or standards concerning or in
connection with Hazardous Materials.
ESCROWEE: Chicago Title & Trust Company, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Attention: ▇▇▇▇▇ ▇▇▇▇▇▇.
HAZARDOUS MATERIALS: Any substance, material, waste, gas or particulate
matter which is regulated by any local governmental authority, the State of
Illinois, or the United States Government, including, but not limited to, any
material or substance which is (i) defined as a "hazardous waste," "hazardous
material," "hazardous substance," "extremely hazardous waste," or "restricted
hazardous waste" under any provision of Illinois law, (ii) petroleum, (iii)
asbestos, (iv) polychlorinated biphenyl, (v) radioactive material, (vi)
designated as a "hazardous substance" pursuant to Section 311 of the Clean Water
Act, 33 U.S.C.ss.1251 et seq. (33 U.S.C.ss.1317), (vi) defined as a "hazardous
waste" pursuant to Section 1004 of the Resource Conservation and Recovery Act,
42 U.S.C.ss.6901 et seq. (42 U.S.C.ss.6903), or (viii) defined as a "hazardous
substance" pursuant to Section 101 of the Comprehensive Environmental Response,
Compensation, and Liability Act, 42 U.S.C.ss.9601 et seq.
LEASE: The lease of the Property between Purchaser, as landlord, and
Seller, as tenant, in the form attached hereto as Exhibit E.
LEGAL REQUIREMENTS: All laws, statutes, codes, acts, ordinances,
orders, judgments, decrees, injunctions, rules, regulations, permits, licenses,
authorizations, directions and requirements of all governments and governmental
authorities having jurisdiction of the Property, and the operation thereof.
LICENSES: All licenses, franchises, certifications, authorizations,
approvals and permits issued or approved by any governmental authority and
relating to the operation, ownership and maintenance of the Property or any part
thereof, including elevator permits, machinery permits, ingress and egress
permits and the like, as identified and described in Exhibit C.
PERSONAL PROPERTY: All machinery, fixtures and other tangible personal
property situated in or upon or used in connection with the operation or
maintenance of the Real Property or any part thereof as identified and described
on Exhibit B attached hereto and made a part hereof and all replacements,
additions or accessories thereto between the date hereof and the Closing Date.
F-2
PROPERTY: Collectively, the Real Property, the Personal Property and
the Licenses.
REAL PROPERTY: Approximately 22.8 acres of land having the address of
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, and legally described on
Exhibit A, together with the building located thereon consisting of a
warehouse/distribution/office industrial building containing approximately
488,500 square feet (including all replacements or additions thereto between the
date hereof and the Closing Date); all systems, facilities, fixtures, machinery,
equipment and conduits to provide fire protection, security, heat, exhaust,
ventilation, air conditioning, electrical power, light, plumbing, refrigeration,
gas, sewer and water thereto (including all replacements or additions thereto
between the date hereof and the Closing Date); all privileges, rights,
easements, hereditaments, and appurtenances thereto belonging; and all right,
title and interest of Seller in and to all streets, alleys, passages and other
rights-of-way included therein or adjacent thereto (before or after the vacation
thereof).
SURVEY: A survey of the Real Property, dated on or after the date
hereof, prepared by a surveyor licensed by the State of Illinois and certified
to Purchaser, the Title Insurer and such other parties as Purchaser shall
designate to be prepared in accordance with the current standards for Land Title
Surveys of the American Land Title Association and the American Congress on
Surveying and Mapping survey, and including Table A Items 1, 2, 3, 4, 7(a),
7(b)(1), 7(c), 8, 9, 10, 11(a), 13, 14, 15 and 16.
TITLE COMMITMENT: A commitment for a current ALTA Form Owner's Title
Insurance Policy with extended coverage, a 3.1 zoning endorsement and a
Creditor's Rights endorsement, issued by the Title Insurer in the full amount of
the Purchase Price, covering title to the Real Property on or after the date
hereof, showing Seller as owner of the Real Property in fee simple.
TITLE INSURER: Chicago Title Insurance Company.
ARTICLE II
PURCHASE AND SALE
2.01 PURCHASE AND SALE. Subject to the conditions and on the terms
contained in this Agreement:
(a) Purchaser agrees to purchase and acquire from Seller,
and Seller agrees to sell and transfer to Purchaser, the Real Property by the
Deed.
(b) Purchaser agrees to purchase and acquire from Seller,
and Seller agrees to sell, assign, convey and transfer to Purchaser, all of
Seller's right, title and interest in the Licenses.
(c) Purchaser agrees to purchase and acquire from Seller,
and Seller agrees to sell, convey and transfer to Purchaser, the Personal
Property by good and sufficient ▇▇▇▇ of sale containing full warranties of title
free and clear of liens, claims, encumbrances and restrictions of every kind and
description except the Permitted Exceptions to the extent applicable thereto.
F-3
ARTICLE III
PURCHASE PRICE
3.01 PURCHASE PRICE. The Purchase Price shall be Nineteen Million Eight
Hundred Seven Thousand Five Hundred Twenty and No/100 Dollars ($19,807,520.00),
payable as hereinafter provided. Purchaser agrees to pay to Seller and Seller
agrees to accept payment of the Purchase Price as follows:
(a) The Deposit (and any interest thereon) shall be applied
against the Purchase Price at closing.
(b) Purchaser shall pay to Seller the remainder of the
Purchase Price at Closing, plus or minus prorations, in cash or by certified,
cashier's or escrowee check or bank wire transfer of collected federal funds.
ARTICLE IV
SURVEY
4.01 SURVEY. Seller has delivered the Survey to Purchaser.
ARTICLE V
TITLE
5.01 TITLE. Seller has delivered to Purchaser the Title Commitment,
together with copies of all underlying documents relating to title exceptions
referred to therein (the "Title Documents"). Within five (5) Business Days after
Purchaser's receipt of the last of the Title Commitment, the Title Documents and
the Survey (the "Title Review Date"), Purchaser shall furnish Seller with a
written statement of objections, if any, to the title to the Property,
including, without limitation, any objections to any matter shown on the Title
Commitment, the Title Documents or the Survey and a list of any title
endorsements required by Purchaser which the Title Company has not agreed to
issue, if any (collectively, "Objections"). Should Purchaser fail to notify
Seller in writing of any Objections to the Title Commitment or Survey on or
before the Title Review Date, Purchaser shall be deemed to have approved such
matters, which shall be considered to be "Permitted Exceptions" as defined in
Section 5.04 below.
5.02 OBJECTIONS. If Seller receives a timely statement identifying
Objections in accordance with Section 5.01 ("Purchaser's Notice"), Seller shall
have the right, but not the obligation, within five (5) Business Days after
receipt of Purchaser's Notice ("Seller's Response Period") to elect to attempt
to cure any such matter. Seller shall deliver written notice to Purchaser
stating whether or not it elects to attempt to cure any Objections ("Seller's
Response") within the Seller's Response Period, and in the Seller's Response may
extend the Closing Date for up to fifteen (15) Business Days to allow such cure.
Notwithstanding the foregoing, Seller shall in any event be obligated to cure
all matters or items (i) that are mortgage or deed of trust liens or security
interests against the Property, in each case granted by Seller (and not other
parties), (ii) real estate tax liens, other than liens for taxes and assessments
not yet delinquent, (iii) other liens or judgments of a definite or
ascertainable amount, and (iv) liens that have been voluntarily placed against
the Property by Seller and/or its agents (and not other parties) after the date
hereof and that are not otherwise permitted pursuant to the provisions hereof.
Seller shall be entitled to apply the Purchase Price towards the payment or
satisfaction of such liens, and may cure any Objections by causing the Title
Insurer to insure against collection of the same out of the Property.
5.03 SELLER'S RESPONSE. If Seller elects not to attempt to cure any
Objections raised in any Purchaser's Notice timely delivered by Purchaser to
Seller pursuant to Section 5.01, or if Seller notifies Purchaser that it elects
to attempt to cure any such Objection but then does not for any reason effect
such cure on or before the Closing Date as it may be extended hereunder, then
Purchaser, as its sole and exclusive remedy, shall have the option of
terminating this Agreement by delivering written notice thereof to Seller within
three (3) Business Days after (as
F-4
applicable) (i) its receipt of Seller's Response stating that Seller will not
attempt to cure any such Objection or (ii) Seller's failure to cure by the
Closing Date (as it may be extended hereunder) any Objection which Seller has
previously elected to attempt to cure pursuant to a Seller's Response. In the
event of such a termination, the Deposit, and any earnings thereon, shall be
returned to Purchaser, and neither party shall have any further rights or
obligations hereunder except as otherwise provided herein. If no such
termination notice is timely received by Seller hereunder, Purchaser shall be
deemed to have waived all such Objections in which event those Objections shall
become Permitted Exceptions.
5.04 PERMITTED EXCEPTIONS. At the Closing, Seller shall convey title to
the Property to Purchaser by the Deed subject to no exceptions other than:
(i) Matters created by, or with the written consent of,
Purchaser;
(ii) Non-delinquent liens for real estate taxes and
assessments; and
(iii) Any exceptions disclosed by the Title Commitment which
is approved or deemed approved by Buyer in accordance
with this Article V.
All of the foregoing exceptions shall be referred to collectively as
the "Permitted Exceptions". Subject to the terms and conditions contained
elsewhere in this Agreement, and unless otherwise agreed at Closing by
acceptance of the Deed and the Closing of the purchase and sale of the Property,
(x) Purchaser agrees it is assuming for the benefit of Seller all of the
obligations of Seller with respect to the Permitted Exceptions from and after
the Closing, and Seller agrees it shall remain liable for any obligations with
respect to the Permitted Exceptions for the period of time prior to Closing, and
(y) Purchaser agrees that Seller shall have conclusively satisfied its
obligations with respect to title to the Property. The provisions of this
Section shall survive the Closing.
5.05 TITLE POLICY. Delivery of title in accordance with the foregoing
shall be evidenced by the willingness of the Title Insurer to issue, at Closing,
its Owner's ALTA Policy of Title Insurance, with extended coverage, and a 3.1
zoning endorsement, in the amount of the Purchase Price showing title to the
Real Property vested in Purchaser, subject only to the Permitted Exceptions (the
"Title Policy"). The Title Policy may contain such other endorsements as
reasonably required by Purchaser provided that the issuance of such endorsements
shall not be a condition to Purchaser's obligations hereunder. Purchaser shall
pay the costs for all such other endorsements. Seller shall have no obligation
to provide any indemnity or agreement to the Title Insurer or Purchaser to
support the issuance of the Title Policy or any such endorsements other than a
standard ALTA Owner's Statement in the form in general use by the Title Insurer,
and a Creditor's Rights endorsement if desired by Purchaser.
ARTICLE VI
POSSESSION, PRORATIONS AND CLOSING COSTS
6.01 POSSESSION. Sole and exclusive possession of the Property shall be
delivered to Purchaser on the Closing Date, subject to the occupancy of Seller
pursuant to the Lease and the rights of others under the Permitted Exceptions.
6.02 PRORATIONS. General and special real estate and other ad valorem
taxes and assessments and other state or city taxes, fees, charges and
assessments affecting the Property; utility charges and deposits; fuels; and all
other items of accrued or prepaid income and expenses customarily prorated on
the transfer of industrial properties in the Elk Grove Village, Illinois area
shall be prorated on an accrual basis as of the Closing Date but only to the
extent such items are not the responsibility of Seller as tenant under the terms
of the Lease. The foregoing
F-5
notwithstanding, there shall be a proration for general real estate taxes. Those
items that are the responsibility of Seller as tenant under the Lease and are
not prorated and have accrued prior to the Closing Date shall remain the
responsibility of Seller following Closing. All prorations shall be on the basis
of the most recent ascertainable amounts of or other reliable information in
respect to each such item of income and expense, and the net credit to Purchaser
or Seller shall be paid as an adjustment to that portion of the Purchase Price
payable on the Closing Date. Items prorated on an estimated basis on the Closing
Date shall be reprorated by the parties when and as the actual amount of such
item of income or expense becomes known. Any adjustment due to reproration shall
be effected not later than ten (10) days following final determination of the
amount of such item and demand by the party to whom credit is due. Purchaser
shall assume and timely discharge all obligations with respect to accrued
expenses and prepaid income for which it receives proration credit. The
provisions of this Section 6.02 shall survive Closing.
6.03 CLOSING COSTS. Purchaser shall be responsible for its own due
diligence costs and Property inspection fees, including, but not limited to, any
additional environmental, asbestos, and physical reports Purchaser deems
necessary. Each party shall be solely responsible for the fees of their
respective counsel. Seller shall be responsible for the payment of all
municipal, county and state transfer taxes, and recording charges. Seller shall
also be responsible for the costs of the Survey and the Title Policy; provided,
however, Purchaser shall be responsible for the costs of any endorsements (other
than the 3.1 zoning endorsement and the Creditor's Right's endorsement, which
shall be the responsibility of the Seller) to the Title Policy.
F-6
ARTICLE VII
ESCROW
7.01 ESCROW. Seller and Purchaser shall establish an escrow with the
Escrowee for the deposit of the Deposit, in the form attached hereto as Exhibit
F. Upon opening of said escrow, Escrowee shall cause the Deposit to be deposited
in said escrow. Purchaser may direct the Escrowee to invest the Deposit in
accounts or securities permitted by Escrowee at the highest available rate of
earnings, which earnings shall be applied to the Purchase Price at Closing, or
if closing does not occur, paid to Purchaser.
ARTICLE VIII
BROKERAGE
8.01 BROKERAGE. Seller hereby represents and warrants to Purchaser that
Seller has not dealt with any broker or finder in respect to the transaction
contemplated hereby except for Colliers, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇▇ ("Broker"), whose
commission shall be paid by Seller at Closing; and Seller hereby agrees to
indemnify Purchaser for any claim for brokerage commission or finder's fee
asserted by a person, firm or corporation claiming to have been engaged by
Seller. Purchaser hereby represents and warrants to Seller that Purchaser has
not dealt with any broker or finder in respect to the transaction contemplated
hereby except for Broker, and Purchaser hereby agrees to indemnify Seller for
any claim for brokerage commission or finder's fee asserted by a person, firm or
corporation other than Broker claiming to have been engaged by Purchaser.
ARTICLE IX
DESTRUCTION, DAMAGE OR CONDEMNATION
9.01 MINOR LOSS. Purchaser shall be bound to purchase the Property for
the full Purchase Price as required by the terms hereof, without regard to the
occurrence or effect of any damage to the Property or destruction of any
improvements thereon or condemnation of any portion of the Property, provided
that: (a) the cost to repair any such damage or destruction does not exceed One
Million Dollars ($1,000,000.00) in the estimate of an architect or contractor
selected by Seller and reasonably acceptable to Purchaser or in the case of a
condemnation, the diminution in the value of the remaining Property as a result
of a partial condemnation is not material, (b) upon the Closing, there shall be
a credit against the Purchase Price due hereunder equal to the amount of any
insurance proceeds or condemnation awards collected by Seller as a result of any
such damage or destruction or condemnation, plus the amount of any insurance
deductible, less any sums expended by Seller toward the collection of such
proceeds or awards and the restoration or repair of the Property (the nature of
which restoration or repairs, but not the right of Seller to effect such
restoration or repairs, shall be subject to the approval of Purchaser, which
approval shall not be unreasonably withheld, conditioned or delayed), and (c)
Seller, as Tenant under the Lease, shall be responsible for and required to pay
the full amount of the rent required to be paid under the Lease from and after
the date of Closing. If the proceeds or awards have not been collected as of the
Closing, then such proceeds or awards shall be assigned to Purchaser, except to
the extent needed to reimburse Seller for sums expended to collect such proceeds
or awards or to repair or restore the Property, and Seller shall retain the
rights to such proceeds and awards to such extent.
9.02 MAJOR LOSS. If the cost to repair the damage or destruction as
specified above exceeds One Million Dollars ($1,000,000.00) in the estimate of
an architect or contractor selected by Seller and reasonably acceptable to
Purchaser or the diminution in the value of the remaining Property as a result
of a condemnation is material, then either Purchaser or Seller may, at its
option to be exercised within five (5) days of Seller's notice of the occurrence
of the damage or destruction or the commencement of condemnation proceedings,
elect to terminate this Agreement. If either party elects to terminate this
Agreement by delivering written notice thereof to the other party, then this
Agreement shall terminate, the Deposit, and all earnings thereon, shall be
returned to Purchaser and neither party shall have any further rights or
obligations hereunder except as otherwise provided herein. If neither party
elects to terminate this Agreement, then upon the Closing, there shall be a
credit against the Purchase Price due hereunder equal to the amount of any
insurance proceeds or condemnation awards collected by Seller as a result of
F-7
any such damage or destruction or condemnation, plus the amount of any insurance
deductible, less any sums expended by Seller toward the collection of such
proceeds or awards or to restoration or repair of the Property (the nature of
which restoration or repairs, but not the right of Seller to effect such
restoration or repairs, shall be subject to the approval of Purchaser, which
approval shall not be unreasonably withheld, conditioned or delayed). If the
proceeds or awards have not been collected as of the Closing, then such proceeds
or awards shall be assigned to Purchaser, except to the extent needed to
reimburse Seller for sums expended to collect such proceeds or awards or to
repair or restore the Property, and Seller shall retain the rights to such
proceeds and awards to such extent. Seller, as tenant under the Lease, shall be
responsible for and required to pay the full amount of the rent required to be
paid under the Lease from and after the date of Closing.
ARTICLE X
AFFIRMATIVE COVENANTS OF SELLER
10.01 AFFIRMATIVE COVENANTS OF SELLER.
(a) Seller, at Seller's sole cost and expense, shall
maintain or cause to be maintained the Property free from waste and neglect and
in as good order and repair as of the date hereof and through the Closing Date
or termination of this Agreement. Subject to the provisions of Article IX
hereinabove, on the Closing Date, Seller shall tender possession of the Property
to Purchaser in the same condition the Property was in when last inspected by
Purchaser, except for ordinary wear and tear, casualty loss and condemnation
(provided Purchaser shall not have elected to terminate this Agreement pursuant
to Section 9.02 as a result of such casualty loss or condemnation).
(b) From the Effective Date to the Closing Date, Seller
shall maintain or cause to be maintained in full force and effect property,
liability and other insurance upon and with respect to the Property comparable
to the coverages Seller currently maintains with respect to the Property.
(c) From the Effective Date to the Closing Date or
earlier termination of this Agreement, Seller shall operate and maintain the
Property in the same manner as it has been operated and maintained heretofore,
provided that during said period, without the prior written consent of
Purchaser, Seller shall not do, suffer or permit, or agree to do, any of the
following:
(i) Enter into any other transaction with respect to
or affecting the Property;
(ii) Sell, encumber or grant any interest in the
Property or any part thereof in any form or manner whatsoever, or otherwise
perform or permit any act which will diminish or otherwise affect Purchaser's
interest under this Agreement or in or to the Property or which will prevent
Seller's full performance of its obligations hereunder;
(iii) Enter into, amend, waive any rights under,
terminate or extend any Contract; or
(iv) Remove from the Property any of the fixtures
thereon or any of the Personal Property, other than in the ordinary course of
business and provided such fixtures or Personal Property are replaced with
fixtures or Personal Property of similar value and utility.
F-8
(d) From the Effective Date to the Closing Date, Seller shall
permit representatives, agents, employees, lenders, contractors, appraisers,
architects and engineers designated by Purchaser access to and entry upon the
Property and the improvements thereon to examine, inspect, measure and test the
Property. In connection with any entry by Purchaser, or its representatives,
agents, employees, lenders, contractors, appraisers, architects or engineers
onto the Property, Purchaser shall give Seller reasonable advance notice of such
entry and shall conduct such entry and any inspections in connection therewith
(i) during normal business hours, (ii) so as to minimize, to the greatest extent
possible, interference with Seller's business, (iii) in compliance with all
applicable laws, and (iv) otherwise in a manner reasonably acceptable to Seller.
Without limiting the foregoing, prior to any entry to perform any on-site
testing, including but not limited to any borings, drillings or samplings,
Purchaser shall give Seller written notice thereof, including the identity of
the company or persons who will perform such testing and the proposed scope and
methodology of the testing. Seller shall approve or disapprove, in Seller's
reasonable discretion, the proposed testing within three (3) Business Days after
receipt of such notice. If Seller fails to respond within such three (3)
Business Day period, Seller shall be deemed to have approved the proposed
testing. If Purchaser or its representatives, agents, employees, lenders,
contractors, appraisers, architects or engineers take any sample from the
Property in connection with any such approved testing, Purchaser shall provide
to Seller a portion of such sample being tested to allow Seller, if it so
chooses, to perform its own testing. Purchaser shall permit Seller or its
representative to be present to observe any testing or other inspection or due
diligence review performed on or at the Property. Upon the request of Seller,
Purchaser shall promptly deliver to Seller copies of any reports relating to any
testing or other inspection of the Property performed by Purchaser or its
representatives, agents, employees, lenders, contractors, appraisers, architects
or engineers. Notwithstanding anything to the contrary contained herein,
Purchaser shall not contact any governmental authority without first obtaining
the prior written consent of Seller thereto which consent may be withheld or
conditioned in Seller's reasonable discretion; provided, however, that Purchaser
may contact any governmental authority it chooses to obtain information
generally available to the public. Seller, at Seller's election, shall be
entitled to have a representative participate in any telephone or other contact
made by Purchaser to a governmental authority and be present at any meeting by
Purchaser with a governmental authority. Purchaser shall maintain, and shall
assure that its contractors maintain, public liability, property damage and
worker's compensation insurance in amounts and in form and substance adequate to
insure against all liability of Purchaser and its representatives, agents,
employees, lenders, contractors, appraisers, architects or engineers, arising
out of any entry or inspections of the Property pursuant to the provisions
hereof, and Purchaser shall provide Seller with evidence of such insurance
coverage upon request by Seller. Purchaser shall indemnify and hold Seller
harmless from and against any costs, damages, liabilities, losses, expenses,
liens or claims (including, without limitation, court costs and reasonable
attorneys' fees and disbursements) arising out of or relating to any entry on
the Property by Purchaser, its representatives, agents, employees, lenders,
contractors, appraisers, architects or engineers in the course of performing the
inspections, testings or inquiries provided for in this Agreement, including,
without limitation, any release of Hazardous Materials or any damage to the
Property; provided, that, Purchaser shall not be liable to Seller solely as a
result of the discovery by Purchaser of a pre-existing condition on the Property
unless the loss is caused by the negligence or willful act of Purchaser, its
representatives, agents, employees, lenders, contractors, appraisers, architects
or engineers. The foregoing indemnity shall survive beyond the Closing, or, if
the sale is not consummated, beyond the termination of this Agreement.
Purchaser's right of entry, as provided in this Section 10.01(d), shall continue
up through the Closing Date unless this Agreement is earlier terminated.
(e) Seller has delivered to Purchaser prior to the Effective
Date true, correct and complete copies of the following (collectively with Title
Commitment and Survey, the "Due Diligence Documents"):
(i) All Licenses;
(ii) All physical reports and environmental studies
pertaining to the Property in Seller's possession or control;
F-9
(iii) As-built plans and specifications for the
improvements on the Property including the plans and specifications for and a
complete description of all existing renovations to the Property; and
(iv) Any information in Seller's possession pertinent
to Purchaser's due diligence examination and inspection.
ARTICLE XI
REPRESENTATIONS AND WARRANTIES OF SELLER
11.01 REPRESENTATIONS AND WARRANTIES OF SELLER. To induce Purchaser to
execute, deliver and perform this Agreement, Seller hereby represents and
warrants to Purchaser on and as of the date hereof and on and as of the Closing
Date as follows
(a) All representations and warranties of Seller
appearing in other Sections of this Agreement are true and correct.
(b) Seller is a corporation duly organized and in good
standing under the laws of the State of Illinois, and is duly qualified to do
business in and in good standing under the laws of the State of Illinois.
(c) Seller has full capacity, right, power and authority to
execute, deliver and perform this Agreement and all documents to be executed by
Seller pursuant hereto, and all required action and approvals therefor have been
duly taken and obtained. The individuals signing this Agreement and all other
documents executed or to be executed pursuant hereto on behalf of Seller are and
shall be duly authorized to sign the same on Seller's behalf and to bind Seller
thereto. This Agreement and all documents to be executed pursuant hereto by
Seller are and shall be binding upon and enforceable against Seller in
accordance with their respective terms, subject to equitable principles and
principles governing creditor's rights generally.
(d) Exhibit C is an accurate description of each of the
Licenses, as amended and in effect. To the best of Seller's knowledge, each of
the Licenses is in full force and effect and in good standing, and neither
Seller nor any agent or employee of Seller has received notice of any intention
on the part of the issuing authority to cancel, suspend or modify any of the
Licenses or to take any action or institute any proceedings to effect such a
cancellation, suspension or modification. The Licenses identified on Exhibit C
comprise all licenses, franchises, certifications, authorizations, approvals and
permits required by any governmental or quasi-governmental authority for the use
and operation of the Property (and not Seller's business thereon) as the same
was used and operated by Seller, and the Property was operated and occupied by
Seller in material compliance with each of the Licenses. Purchaser shall be
entitled to the use and benefit of all Licenses upon consummation of the
transaction contemplated hereby without any further action by the parties.
(e) To the best of Seller's knowledge, Seller owns fee
simple title to the Real Property.
F-10
(f) To the best of Seller's knowledge, there are no claims,
causes of action or other litigation or proceedings pending or threatened with
respect to the ownership or operation of the Property or any part thereof,
including without limitation, proceedings for or involving collections,
condemnation, eminent domain, alleged building code or environmental or zoning
violations, or personal injuries or property damage alleged to have occurred on
the Property of by reason of the condition, use of, or operation on, the
Property, except possible claims for workers' compensation, personal injury or
property damage which are insured.
(g) To the best of Seller's knowledge, Seller has not received
any notice of any violations of any Legal Requirements in respect to the
Property, which have not been entirely corrected.
(h) Seller is not or will not at the Closing be in default in
respect of any of its obligations or liabilities under the Permitted Exceptions.
(i) Intentionally Omitted.
(j) Seller has not received any notice from any insurance
carrier of, nor is aware of, defects or inadequacies in the Property which if
not corrected would result in termination of insurance coverage.
(k) Seller represents and warrants that to the best of
its knowledge, except as disclosed in any Due Diligence Documents or in the
following environmental reports prepared by ▇▇▇▇▇▇▇ Environmental: (a) Phase I
Environmental Assessment dated November 30, 2004; (b) Limited Subsurface Soil
Investigation dated November 29, 2004; (c) Limited Mold Investigation dated
November 30, 2004; and (d) Environmental Business Risk Inspection report dated
November 30, 2004: (i) no notice, demand, claim or other communication has been
given to or served on Seller, and Seller has no actual knowledge of any such
notice given to previous owners or tenants of the Property, from any entity,
governmental body or individual claiming any violation of any Environmental Law
or demanding payment, contribution, indemnification, remedial action, removal
action or any other action or inaction with respect to any actual or alleged
environmental damage or injury to persons, property or natural resources (any of
the foregoing, whether now existing or hereafter brought, is herein called a
"Claim"); (ii) no above ground or underground storage tanks are currently
located on the Property; (iii) the Property has never been used for or in
connection with, and the Seller shall not permit or acquiesce in the use for or
in connection with the manufacture, refinement, treatment, storage, generation,
transport or hauling of any Hazardous Material in excess of levels permitted by
applicable Environmental Laws or the disposal of any such material; (iv) no
Hazardous Material has been discharged, dispersed, released, disposed of, or
allowed to escape on, under or in the Property; (v) no asbestos or asbestos
containing materials have been installed, used, incorporated into or disposed of
on the Property; and (vi) no polychlorinated biphenyls ("PCBs") are or ever have
been located on, in, or used in connection with the Property.
11.02 NO LIABILITY FOR EXCEPTION MATTERS. As used herein, the term
"Exception Matter" shall refer to a matter which would make a representation or
warranty of Seller contained in this Agreement untrue or incorrect and which is
disclosed to Purchaser in the Due Diligence Documents, or is otherwise
discovered by Purchaser before the Closing. If Purchaser first obtains knowledge
of any material Exception Matter after the Due Diligence Expiration
F-11
Date and prior to Closing, and such Exception Matter was not contained in the
Due Diligence Documents or is not a matter of public record, Purchaser's sole
remedy shall be to terminate this Agreement on the basis thereof, upon written
notice to Seller within the earlier of (a) five (5) business days following
Purchaser's discovery of such Exception Matter or (b) the Closing, which ever
occurs first, in which event the Deposit, and any interest earned thereon, shall
be returned to Purchaser, unless within five (5) business days after receipt of
such notice or by the Closing, as the case may be, Seller notifies Purchaser in
writing that it elects to attempt to cure or remedy such Exception Matter, in
which event there shall be no return of the Deposit unless and until Seller is
unable to so cure or remedy within the time period set forth below. Seller shall
be entitled to extend the Closing Date for up to fifteen (15) Business Days in
order to attempt to cure or remedy any Exception Matter. Purchaser's failure to
give notice within five (5) business days after it has obtained knowledge of a
material Exception Matter shall be deemed a waiver by Purchaser of such
Exception Matter. If Purchaser obtains knowledge of any Exception Matter before
the Closing, but nonetheless elects to proceed with the acquisition of the
Property, Seller shall have no liability with respect to such Exception Matter,
notwithstanding any contrary provision, covenant, representation or warranty
contained in this Agreement.
11.03 SURVIVAL OF SELLER'S REPRESENTATIONS AND WARRANTIES.
Notwithstanding anything to the contrary contained in this Agreement, the
representations and warranties of Seller set forth in Section 11.01 shall
survive the Closing for a period of one (1) year. With respect to any suit,
claim or cause of action that Purchaser has or may have as a result of any
alleged untruth, inaccuracy or breach of such representations or warranties
under Section 11.01, Purchaser must give Seller written notice of any such
claims in each instance prior to the expiration of said one (1) year period. In
the event Purchaser fails to provide such notice within such one (1) year
period, Seller shall have no liability whatsoever to Purchaser with respect to
the representations and warranties set forth in Section 11.01. Purchaser will
not have any right to bring any suit, claim or cause of action against Seller as
a result of any alleged untruth, inaccuracy or breach of such representations
and warranties under Section 11.01 unless and until the aggregate amount of all
liability and losses arising out of all such untruths, inaccuracies and breaches
exceeds $250,000.00 and then only to the extent of such excess. Purchaser agrees
to first seek recovery under any insurance policies prior to seeking recovery
from Seller, and Seller shall not be liable to Purchaser for such untruths,
inaccuracies and/or breaches under Section 11.01 if Purchaser's claim is
satisfied from such insurance policies. In addition, notwithstanding anything to
the contrary contained in this Agreement or any of the Closing documents,
including, without limitation, the provisions of Section 13.02 of this
Agreement, in no event shall Seller's liability for all such untruths,
inaccuracies and/or breaches under Section 11.01 (including Seller's liability
for attorneys' fees and costs in connection with such untruths, inaccuracies
and/or breaches) exceed, in the aggregate $10,000,00.00.
11.04 AS-IS. EXCEPT AS EXPRESSLY SET FORTH ELSEWHERE IN THIS AGREEMENT,
PURCHASER SPECIFICALLY ACKNOWLEDGES AND AGREES THAT SELLER IS SELLING AND
PURCHASER IS PURCHASING THE PROPERTY ON AN "AS IS WITH ALL FAULTS" BASIS AND
THAT PURCHASER IS NOT RELYING ON ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND
WHATSOEVER, EXPRESS OR IMPLIED, FROM SELLER, ANY SELLER RELATED PARTIES, OR
THEIR AGENTS OR BROKERS, OR ANY OTHER PERSON ACTING OR PURPORTING TO ACT ON
BEHALF OF SELLER, AS TO ANY MATTERS CONCERNING THE PROPERTY, INCLUDING WITHOUT
LIMITATION: (i) the quality, nature, adequacy and physical condition and aspects
of the Property, including, but not limited to, the structural elements, seismic
aspects of the Property, foundation, roof, appurtenances, access, landscaping,
parking facilities and the electrical, mechanical, HVAC, plumbing, sewage, and
utility systems, facilities and appliances, the square footage within the
improvements on the Real Property, (ii) the quality, nature, adequacy, and
physical condition of soils, geology and any groundwater, (iii) the existence,
quality, nature, adequacy and physical condition of utilities serving the
Property, (iv) the development potential of the Property, and the Property's
use, habitability, merchantability, or fitness, suitability, value or adequacy
of the Property for any particular purpose, (v) the zoning or other legal status
of the Property or any other public or private restrictions on use of the
Property, (vi) the compliance of the Property or its operation with any
applicable codes, laws, regulations, statutes, ordinances, covenants, conditions
and restrictions of any governmental or quasi-governmental entity or of any
other person or entity, (vii) the presence of Hazardous Materials on, under or
about the Property or the adjoining or neighboring property, (viii) the quality
of any labor and materials used in any improvements on the Real Property, (ix)
the condition of title to the Property, (x) the value, economics of the
operation or income potential of the Property, or
F-12
(xi) any other fact or condition which may affect the Property, including
without limitation, the physical condition, value, economics of operation or
income potential of the Property.
ARTICLE XII
REPRESENTATIONS AND WARRANTIES OF PURCHASER
12.01 REPRESENTATIONS AND WARRANTIES OF PURCHASER. To induce Seller to
execute, deliver and perform this Agreement, Purchaser hereby represents and
warrants to Seller on and as of the date hereof and on and as of the Closing
Date as follows:
(a) All representations and warranties of Purchaser appearing
in other Sections of this Agreement are true and correct.
(b) Purchaser is a real estate investment trust duly organized
and in good standing under the laws of the State of Maryland, and is duly
qualified to do business in and in good standing under the laws of the State of
Illinois.
(c) Purchaser has full capacity, right, power and authority to
execute, deliver and perform this Agreement and all documents to be executed by
Purchaser pursuant hereto, and all required action and approvals therefor have
been duly taken and obtained. The individuals signing this Agreement and all
other documents executed or to be executed pursuant hereto on behalf of
Purchaser are and shall be duly authorized to sign the same on Purchaser's
behalf and to bind Purchaser thereto. This Agreement and all documents to be
executed pursuant hereto by Purchaser are and shall be binding upon and
enforceable against Purchaser in accordance with their respective terms, subject
to equitable principles and principles governing creditor's rights generally.
ARTICLE XIII
CONDITIONS PRECEDENT AND TERMINATION
13.01 TERMINATION RIGHT. At any time on or before the Due Diligence
Expiration Date, Purchaser may, for any reason whatsoever or for no reason,
elect to terminate this Agreement by notice to Seller, in which event this
Agreement shall terminate and the Deposit, and any earnings thereon, shall
forthwith be returned to Purchaser, provided that should Purchaser fail to give
Seller such notice of termination on or before the Due Diligence Expiration
Date, Purchaser's right to terminate as set forth in this Section 13.01 shall be
deemed to be waived by Purchaser.
13.02 TRUTH OF SELLER'S REPRESENTATIONS AND WARRANTIES AND PERFORMANCE
OF SELLER'S OBLIGATIONS. The obligation of Purchaser to close the transaction
contemplated hereby is, at Purchaser's option, further subject to all material
representations and warranties of Seller contained in this Agreement being true
and correct at and as of the Closing Date and all material obligations of Seller
to have been performed on or before the Closing Date having been timely and duly
performed. Upon failure of any condition precedent as set forth in this Section
13.02, Purchaser may, by written notice to Seller, elect at any time thereafter
either to terminate this Agreement, provided that Purchaser is not itself in
default, or, in the alternative, to seek specific performance of this Agreement.
If this Agreement is terminated pursuant to this Section 13.02, the Deposit, and
any earnings thereon, shall forthwith be returned to Purchaser, and all other
funds and documents theretofore delivered hereunder or deposited in escrow by
either party shall be forthwith returned to such party and neither party shall
have any further rights or obligations except as otherwise provided herein.
13.03 PERFORMANCE OF PURCHASER'S OBLIGATIONS. The obligation of Seller
to close the transaction contemplated hereby is, at Seller's option, subject to
all material obligations of Purchaser, which were to have been performed on or
before the Closing Date having been timely and duly performed. If any condition
precedent to
F-13
closing of Seller as set forth in this Section 13.03 has not been fulfilled and
satisfied on or before the Closing Date, Seller may, by written notice to
Purchaser, elect at any time thereafter to terminate this Agreement, provided
that Seller is not itself in default, and if such termination is due to
Purchaser's fault, Seller shall be entitled to retain the Deposit as full and
complete liquidated damages (and not as a penalty or forfeiture) in lieu of any
and all other legal and equitable rights which Seller may have hereunder, and
all other funds and documents theretofore delivered hereunder or deposited in
escrow by either party shall be forthwith returned to such party and neither
party shall have any further rights or obligations hereunder except as otherwise
provided herein.
ARTICLE XIV
CLOSING
14.01 TIME AND PLACE. The transaction contemplated hereby shall close
before 2:00 P.M. on the Closing Date at the offices of the Escrowee (the
"Closing").
14.02 SELLER'S DELIVERIES. On the Closing Date, Seller shall deposit in
the escrow the following:
(i) The Deed;
(ii) Seller's assignment of the Licenses, as provided in
Section 2.01(b);
(iii) Seller's ▇▇▇▇ of sale as provided in Section 2.01(c);
(iv) Original executed counterparts of all Licenses assigned
to Purchaser pursuant to Section 14.02(ii) above (or, in Purchaser's sole
discretion where originals are unavailable, copies duly certified by Seller as
being true, correct and complete copies of the originals);
(v) Seller's certificate dated as of the Closing Date
confirming that the representations and warranties of Seller are true and
correct as of the Closing Date;
(vi) An ALTA statement in form required by the Title Insurer;
(vii) An executed Affidavit in the form attached hereto as
Exhibit F or a qualifying statement from the U.S. Treasury Department that the
transaction is exempt from the withholding tax requirement imposed by Section
1445A of the Internal Revenue Code and the rules and regulations promulgated
thereunder ("Section 1445A"); and
(viii) Such other documents, instruments, certifications and
confirmations as may be reasonably required and designated by Purchaser to fully
effect and consummate the transactions contemplated hereby.
14.03 PURCHASER'S DELIVERIES. On the Closing Date, Purchaser shall
deliver the following to Seller:
(i) An ALTA statement in form required by the Title Insurer;
(ii) The Purchase Price as provided in Section 3.01(b); and
F-14
(iii) Such other documents, instruments, certifications and
confirmations as may be reasonably required and designated by Seller to fully
effect and consummate the transaction contemplated hereby.
14.04 CONCURRENT DELIVERIES. Seller and Purchaser shall jointly deposit
in the escrow or deliver to each other at Closing: (i) an agreed proration
statement and certificates complying with the provisions of state, county and
local law applicable to the determination of transfer taxes; and (ii) the Lease.
14.05 NEW YORK STYLE CLOSING. The transaction shall be closed by means
of a so-called New York Style Closing, with the concurrent delivery of the
documents of title, transfer of interests, delivery of the Title Policy and the
payment of the Purchase Price. Seller and Purchaser shall each pay 50% of the
charges of the Title Insurer for such New York Style Closing.
14.06 CONCURRENT TRANSACTIONS. All documents or other deliveries
required to be made by Purchaser or Seller at Closing, and all transactions
required to be consummated concurrently with Closing, shall be deemed to have
been delivered and to have been consummated simultaneously with all other
transactions and all other deliveries, and no delivery shall be deemed to have
been made, and no transaction shall be deemed to have been consummated, until
all deliveries required by Purchaser and Seller shall have been made, and all
concurrent or other transactions shall have been consummated.
ARTICLE XV
NOTICES
15.01 NOTICES. Any notice, request, demand, instruction or other
document to be given or served hereunder or under any document or instrument
executed pursuant hereto shall be in writing and shall be delivered personally
or sent by United States registered or certified mail, return receipt requested,
postage prepaid or by overnight express courier, postage prepaid and addressed
to the parties at their respective addresses set forth below, and the same shall
be effective (i) upon receipt if delivered personally, (ii) one (1) Business Day
after deposit with an overnight express courier, or (iii) three (3) Business
Days after deposit in the mails if mailed, or (iv) the next Business Day
following the date sent, if delivered via facsimile at the number set forth
below, with a proof of transmission and a hard copy to follow by overnight
service. A party may change its address for receipt of notices by service of a
notice of such change in accordance herewith.
If to Purchaser, to: CenterPoint Properties Trust
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
With a copy to: ▇▇▇▇▇▇▇▇ Richmond LLP
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
If to Seller, to: Enesco Group, Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
F-15
With a copy to: Enesco Group, Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Law Dept.
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
With a further
copy to: ▇▇▇▇▇, ▇▇▇▇▇▇, MacKay & ▇▇▇▇▇▇▇▇▇▇, P.C.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
ARTICLE XVI
MISCELLANEOUS
16.01 ENTIRE AGREEMENT, AMENDMENTS AND WAIVERS. This Agreement contains
the entire agreement and understanding of the parties in respect to the subject
matter hereof, and the same may not be amended, modified or discharged nor may
any of its terms be waived except by an instrument in writing signed by the
party to be bound thereby.
16.02 FURTHER ASSURANCES. The parties each agree to do, execute,
acknowledge and deliver all such further acts, instruments and assurances and to
take all such further action before or after the closing as shall be necessary
or desirable to fully carry out this Agreement and to fully consummate and
effect the transactions contemplated hereby.
16.03 NO THIRD PARTY BENEFITS. This Agreement is for the sole and
exclusive benefit of the parties hereto and their respective successors and
assigns, and no third party is intended to or shall have any rights hereunder.
16.04 INTERPRETATION.
(a) The headings and captions herein are inserted for
convenient reference only and the same shall not limit or construe the
paragraphs or sections to which they apply or otherwise affect the
interpretation hereof
(b) The terms "hereby," "hereof," "hereto," "herein,"
"hereunder," and any similar terms shall refer to this Agreement, and the term
"hereafter" shall mean after, and the term "heretofore" shall mean before, the
date of this Agreement.
(c) Words of the masculine, feminine or neuter gender
shall mean and include the correlative words of other genders, and words
importing the singular number shall mean and include the plural number and vice
versa.
(d) Words importing persons shall include firms,
associations, partnerships (including limited partnerships), trusts,
corporations and other legal entities, including public bodies, as well as
natural persons.
F-16
(e) The terms "include," "including" and similar terms
shall be construed as if followed by the phrase "without being limited to."
(f) This Agreement and any document or instrument
executed pursuant hereto may be executed in any number of counterparts each of
which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
(g) Whenever under the terms of this Agreement the time
for performance of a covenant or condition falls upon a Saturday, Sunday or
holiday, such time for performance shall be extended to the next Business Day.
Otherwise all references herein to "days" shall mean calendar days.
(h) This Agreement shall be governed by and construed in
accordance with the laws of the State of Illinois.
(i) Time is of the essence of this Agreement.
16.05 TAX APPEAL PROCEEDINGS. Seller shall be entitled to receive and
retain the proceeds from any tax appeals or protests for tax fiscal years prior
to and including the tax fiscal year in which the Closing Date occurs. In the
event an application to reduce real estate taxes is filed for the period during
which Seller was the owner of the Real Property, Seller shall be entitled to a
reproration of real estate taxes upon receipt of and based upon the reduction.
Seller shall continue to process any pending appeals or protests with respect to
the tax fiscal year in which the Closing Date occurs, and the net proceeds from
any such proceedings, after payment of attorneys' fees shall be retained by
Seller. The cost of all such tax appeals and protests shall be paid by Seller.
The provision of this Section 16.05 shall survive Closing.
16.06 ATTORNEYS' FEES. If either party hereto fails to perform any of
its obligations under this Agreement or if any dispute arises between the
parties hereto concerning the meaning or interpretation of any provision of this
Agreement, whether prior to or after Closing, or if any party defaults in
payment of its post-Closing financial obligations under this Agreement, then the
defaulting party or the party not prevailing in such dispute, as the case may
be, shall pay any and all costs and expenses incurred by the other party on
account of such default and/or in enforcing or establishing its rights
hereunder, including, without limitation, court costs and reasonable attorneys'
fees and disbursements.
16.07 ASSIGNMENT. Purchaser's rights and obligations hereunder shall
not be assignable without the prior written consent of Seller, in Seller's sole
discretion except to an affiliate of Purchaser. Seller's rights and obligations
hereunder shall not be assignable without the prior written consent of
Purchaser.
16.08 TAX DEFERRED EXCHANGE. At its option, Purchaser may assign its
rights to purchase the Property pursuant to this Agreement to a Qualified
Intermediary Trustee or Escrow Agent as those terms are defined in Treasury
Regulations ss.1.1031(k)-1 or successor provisions (collectively, the "QUALIFIED
INTERMEDIARY") for the purpose of conveying the Property pursuant to a
transaction which qualifies as an Exchange of Property pursuant to the
provisions of Section 1031 of the Internal Revenue Code (the "Code"). If
Purchaser assigns its rights to purchase the Property pursuant to this Agreement
to the Qualified Intermediary and Purchaser provides written notice of such
assignment to Purchaser on or prior to the date of the Closing, Seller agrees to
fully cooperate with Purchaser and with the Qualified Intermediary and to take
all reasonable actions requested by the Qualified Intermediary or by Purchaser
to assist Purchaser and the Qualified Intermediary in satisfying the
requirements of Section 1031 of the Code, including satisfying any of Seller's
obligations under this Agreement directly to the Qualified Intermediary. If
Purchaser assigns its right to sell the Property pursuant to this Agreement to
the Qualified Intermediary, the Qualified Intermediary will direct Seller to
convey the Property to Qualified Intermediary on the date of Closing in
accordance with the terms of this Agreement; provided, however, the Qualified
Intermediary shall take such action as is necessary to allow Purchaser to
execute and deliver the Lease at Closing, so that the Lease and
F-17
the obligations of the landlord thereunder shall be valid, binding and
enforceable against Purchaser. Simultaneously with the conveyance of the
Property to Qualified Intermediary, Purchaser shall pay the Purchase Price to
the Seller. Seller makes no representations and gives no warranties with respect
to the tax effects of the proposed exchange transactions. Purchaser shall
reimburse Seller for any closing costs incurred by Seller as a result of any
exchange transaction arranged by Purchaser, which Seller would have otherwise
not incurred but for Purchaser's structuring of the transaction as an exchange.
Additionally, notwithstanding Purchaser's assignment of this Agreement to a
Qualified Intermediary, Purchaser shall remain fully liable to Seller for the
performance of all indemnities and other obligations hereunder and under no
circumstances shall Seller take title to any replacement property for Purchaser
and Purchaser shall not contractually obligate itself or Seller to do so.
[SIGNATURE PAGE FOLLOWS]
F-18
IN WITNESS WHEREOF, this Agreement has been executed and delivered by
Seller and Purchaser on the respective dates set forth beneath each of their
signatures and is intended to be effective as of the latest such date.
SELLER:
ENESCO GROUP, INC., an Illinois corporation
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇-▇▇▇▇▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇-▇▇▇▇▇▇▇▇▇▇
---------------------------------------
Its: President
---------------------------------------
Dated: December 10, 2004
PURCHASER:
CENTERPOINT PROPERTIES TRUST,
a Maryland real estate investment trust
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------------
Its: Chief Investment Officer
---------------------------------------
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
---------------------------------------
Its: Vice President
---------------------------------------
Dated: December 10, 2004
F-19